CRPC Ratan Lal Dhirajlal PDF

User Name: Mmaneesh Bajpai
Date and Time: 19 August 2020 09:31:00 IST

Job Number: 123535540
Documents (100)
1. THE CODE OF CRIMINAL PROCEDURE

Client/Matter: -None-
2. [s 1] Short title, extent and commencement.-
3. [s 2] Definitions.-
4. (b) “charge”
5. (c) “cognizable offence”
6. (d) “complaint”
7. (e) “High Court”
8. (f) “India”
9. (g) “inquiry”
10. (h) “investigation”
11. (i) “judicial proceeding”
12. (j) “local jurisdiction”
13. (k) “metropolitan area”
14. (l) “non-cognizable offence”
15. (m) “notification”
16. (n) “offence”
17. (o) “officer-in-charge of a police station”
18. (p) “place”
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19. (q) “pleader”
20. (r) “police report”
21. (s) “police station”
22. (t) “prescribed”
23. (u) “Public Prosecutor”
24. (v) “sub-division”
25. (w) “summons-case”
26. [(wa) “victim”
27. (x) “warrant-case”
28. (y) words and expressions used herein
29. [s 3] Construction of references.-
30. [s 4] Trial of offences under the Indian Penal Code and other laws.-
31. [s 5] Saving.-
32. [s 6] Classes of Criminal Courts.-
33. [s 7] Territorial divisions.-
34. [s 8] Metropolitan areas.-
35. [s 9] Court of Session.-
36. [s 10] Subordination of Assistant Sessions Judges.-
37. [s 11] Courts of Judicial Magistrates.-
38. [s 12] Chief Judicial Magistrate and Additional Chief Judicial Magistrate, etc.-
39. [s 13] Special Judicial Magistrates.-
40. [s 14] Local jurisdiction of Judicial Magistrates.-
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41. [s 15] Subordination of Judicial Magistrates.-
42. [s 15.1] STATE AMENDMENT
43. [s 16] Courts of Metropolitan Magistrates.-
44. [s 17] Chief Metropolitan Magistrate and Additional Chief Metropolitan Magistrate.-
45. [s 18] Special Metropolitan Magistrates.-
46. [s 19] Subordination of Metropolitan Magistrates.-
47. [s 20] Executive Magistrates.-
48. [s 21] Special Executive Magistrates.-
49. [s 22] Local jurisdiction of Executive Magistrates.-
50. [s 23] Subordination of Executive Magistrates.-
51. [s 24] Public Prosecutors.-
52. [s 25] Assistant Public Prosecutors.-
53. [s 25A] Directorate of Prosecution.-
54. [s 26] Courts by which offences are triable.-Subject to the other provisions of this Code—
55. [s 27] Jurisdiction in the case of juveniles.-
56. [s 28] Sentences which High Courts and Sessions Judges may pass.-
57. [s 29] Sentences which Magistrates may pass.-
58. [s 30] Sentence of imprisonment in default of fine.-
59. [s 31] Sentence in cases of conviction of several offences at one trial.-
60. [s 32] Mode of conferring powers.-
61. [s 33] Powers of Officers appointed.-
62. [s 34] Withdrawal of powers.-
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63. [s 35] Powers of Judges and Magistrates exercisable by their successors-inoffice.-
64. [s 36] Powers of superior officers of police.-
65. [s 37] Public when to assist Magistrates and police.-
66. [s 38] Aid to person, other than police officer, executing warrant.-
67. [s 39] Public to give information of certain offences.-
68. [s 40] Duty of officers employed in connection with the affairs of a village to make certain report.-
69. [s 41] When police may arrest without warrant.-
70. [s 41A] Notice of appearance before police officer.-
71. [s 41B] Procedure of arrest and duties of offier making arrest.-Every police officer while making an arrest
shall—
72. [s 41C] Control room at districts.-
73. [s 41D] Right of arrested person to meet an advocate of his choice during interrogation.-
74. [s 42] Arrest on refusal to give name and residence.-
75. [s 43] Arrest by private person and procedure on such arrest.-
76. [s 44] Arrest by Magistrate.-
77. [s 45] Protection of members of the Armed Forces from arrest.-
78. [s 46] Arrest how made.-
79. [s 47] Search of place entered by person sought to be arrested.-
80. [s 48] Pursuit of offenders into other jurisdictions.-
81. [s 49] No unnecessary restraint.-
82. [s 50] Person arrested to be informed of grounds of arrest and of the right to bail.-
83. [s 50A] Obligation of person making arrest to inform about the arrest, etc., to a nominated person.-
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84. [s 51] Search of arrested person.-
85. [s 52] Power to seize offensive weapons.-
86. [s 53] Examination of accused by medical practitioner at the request of police officer.-
87. [s 53A] Examination of person accused of rape by medical practitioner.-
88. [s 54] Examination of arrested person by medical officer.-
89. [s 54-A] Identification of person arrested. –
90. [s 55] Procedure when police officer deputes subordinates to arrest without warrant. –
91. [s 55A]
92. [s 56] Person arrested to be taken before Magistrate or officer in charge of police station. –
93. [s 57] Person arrested not to be detained more than twenty-four hours. –
94. [s 58] Police to report apprehensions. –
95. [s 59] Discharge of person apprehended. –
96. [s 60] Power, on escape, to pursue and retake. –
97. [s 60A]
98. [s 61] Forms of summons. –
99. [s 62] Summons how served. –
100. [s 63] Service of summons on corporate bodies and societies. –
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THE CODE OF CRIMINAL PROCEDURE
Ratanlal & Dhirajlal: The Code of Criminal Procedure, 21st ed
Ratanlal & DhirajlalJustice Chandramauli Kumar Prasad and Namit Saxena
Ratanlal & Dhirajlal: The Code of Criminal Procedure, 21st ed > Ratanlal & Dhirajlal: The Code of
Criminal Procedure, 21st ed > THE CODE OF CRIMINAL PROCEDURE
(ACT NO. 2 OF 1974)
[ 25th January 1974 ]
An Act to consolidate and amend the law relating to Criminal Procedure.
BE it enacted by Parliament in the Twenty-fourth Year of the Republic of India as follows :—
End of Document
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[s 1] Short title, extent and commencement.-
Ratanlal & Dhirajlal: The Code of Criminal Procedure, 21st ed > Ratanlal & Dhirajlal: The Code of Criminal
Procedure, 21st ed > THE CODE OF CRIMINAL PROCEDURE > CHAPTER I Preliminary
CHAPTER I PRELIMINARY
(1) This Act may be called the Code of Criminal Procedure, 1973.
(2) It extends to the whole of India except the State of Jammu and Kashmir:
Provided that the provisions of this Code, other than those relating to chapters VIII,
X and XI thereof, shall not apply—
(a) to the State of Nagaland,

(b) to the tribal areas,
but the concerned State Government may, by notification, apply such provisions or any
of them to the whole or part of the State of Nagaland or such tribal areas, as the case may
be, with such supplemental, incidental or consequential modifications, as may be
specified in the notification.
Explanation.— In this section, “tribal areas” means the territories which immediately
before the 21st day of January, 1972, were included in the tribal areas of Assam, as
referred to in para 20 of the Sixth Schedule to the Constitution, other than those within
the local limits of the municipality of Shillong.
(3) It shall come into force on the 1st day of April, 1974.
The Code of Criminal Procedure, 1973, has come into effect from 1 April 1974. It received the assent
of the President on 25 January 1974. For its application to the Union territories of Andaman and
Nicobar Islands, Dadra and Nagar Haveli, and Lakshadweep, see the Code of Criminal Procedure
(Amendment) Regulation, 1974 (1 of 1974).
[s 1.1] Historical Background.—
There was at first no uniform law of criminal procedure for the whole of India. There were separate
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Acts, mostly rudimentary in their character, to guide the procedure of the courts in the erstwhile
provinces and the presidency-towns. Those applying to the presidency-towns were first consolidated
by the Criminal Procedure Supreme Courts Act (XVI of 1852), which in course of time gave place to
the High Court Criminal Procedure Act (XII of 1865). The Acts of Procedure applying to the
provinces were replaced by the general Criminal Procedure Code (Act XXV of 1861), which was
replaced by Act X of 1872. It was the Criminal Procedure Code of 1882 (Act X of 1882) which gave,
for the first time, a uniform law of procedure for the whole of India both in presidency-towns and in
the moffusil; it was supplanted by the Code of Criminal Procedure, 1898 (Act V of 1898). This last-
mentioned Act had been amended by many amending Acts, the most important being those passed in
1923 and 1955. The extensive amendments of 1955 were made with intent to simplify procedure and
speed up trials. The State Governments too made a large number of amendments to the Code of 1898.
But, on the whole, the Code of 1898 remained unchanged for a very long period.
In the meanwhile, the Law Commission, as first constituted, presented its report on the Reform of
Judicial Administration (14th Report) on 26 September 1958. The Commission after being
reconstituted was asked by the Central Government to undertake a detailed examination of the Code of
Criminal Procedure, 1898. After making recommendations separately on some specific problems
arising out of certain provisions in the Code, the Commission, under the chairmanship of Shri JL
Kapur, submitted a very comprehensive Report on 19 February 1968 on sections 1 to 176 of the Code.
The Commission was again reconstituted in 1968. After its reconstitution, the Commission made a
detailed study of the Code, met Judges and representatives of the various Bar Associations in different
parts of the country, received suggestions from various quarters and ultimately submitted a detailed
report, namely, the Forty-first Report, in September 1969. These recommendations of the Commission
were examined by the Government in the light of the following basic considerations :
(i) An accused person should get a fair trial in accordance with the accepted principles of natural
justice;
(ii) every effort should be made to avoid delay in investigation and trial which is harmful not only
to the individuals involved but also to the society; and
(iii) the procedure should not be complicated and should, to the utmost extent possible, ensure fair
deal to the poorer sections of the community.1
Thereafter, a draft Bill, Bill No. XLI of 1970, was introduced in the Rajya Sabha on 10 December
1970. The Bill was referred to a Joint Select Committee of both the Houses of Parliament and finally
emerged as in its present form and was passed by both the Houses.
Ordinarily, the Code does not affect (1) any special law (section 41, Penal Code), (2) any local law
(section 42, Penal Code), (3) any special jurisdiction or power, or (4) any special form of procedure
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(see section 5).
[s 1.2] Extent and applications.—
With the above exceptions, the Code extends to the whole of India except the State of Jammu and
Kashmir. This provision, excluding Jammu and Kashmir from the application of the Act, was held to
be not violative of Article 1 of the Constitution.2 However, an order for the attachment of salary for the
recovery of maintenance in favour of a wife was executable notwithstanding the fact that the husband
was in the service of the Income-tax Department in J&K.3
A Constitution Bench of the Supreme Court in Anita Kushwaha v Pushap Sudan,4 was seized of a
challenge that section 406 Code of Criminal Procedure, 1973 did not extend to the State of Jammu
and Kashmir and cannot, therefore, be invoked to direct any such transfer. It was held that absence of
an enabling provision cannot be construed as a prohibition against transfer of cases to or from the
State of Jammu and Kashmir. The provisions of Articles 32, 136 and 142 are wide enough to empower
the Supreme Court to direct such transfer in appropriate situations, no matter Central Code of Civil
and Criminal Procedures do not extend to the State nor do the State Codes of Civil and Criminal
Procedure contain any provision that empowers this court to transfer cases.5 The provisions of the
Code, other than those relating to chapters VIII (Security for keeping the peace and for good
behaviour), X (Maintenance of Public Order and Tranquillity) and XI (Preventive Action of the
Police), do not apply to the State of Nagaland and to the tribal areas as defined in the Explanation.
However, the concerned State Government is empowered to apply such provisions with modifications,
if necessary, either to the whole or any part of the State of Nagaland and tribal areas. The Code of
Criminal Procedure, 1973 does not apply to the State of Nagaland.6
The fundamental reason for having a system of criminal law is to provide a framework for the state
punishment of wrongdoers, and thereby to preserve an acceptable degree of social order. Without
Criminal laws and their enforcement each individual’s person, property and family would be
substantially less safe from deliberate violation by others… The specific technique of the criminal law
is to provide for the conviction and punishment of those who culpably breach the more serious duties.
Typically the criminal law will declare which form of conduct and omissions constitute such a serious
breach of duty that they call for prosecution, conviction, and sentence under a special criminal
procedure, and separately from private dispute among citizens. Attached to that declaration will be a
system of enforcement and sentencing which operates by and large to influence people not to violate
these laws. Even those who adopt a retributivist or rights based approach to criminal liability and
punishment surely cannot maintain a general indifference towards the frequency with which these
more serious rights and duties are breached. A major part of the reason for having a system of criminal
law and punishment is surely to reduce the frequency of those violations.7
[s 1.3] Power of CBI to investigate in Nagaland.—
The Members of the CBI have to investigate as if they are the members of the police force of the State
of Nagaland in accordance with the notifications of the Rules applicable in the State of Nagaland.
However, the principles of the Code would be applicable. The CBI has only limited a job to be
performed ie the investigation. Powers and jurisdiction have been conferred on the members of the

DSPE only for the purpose of investigation.8
[s.1.4] Amendment power of State Legislature.—
The State Legislature has the requisite power to make laws to amend the provisions of the Code of
Criminal Procedure, 1973 subject to the other provisions of the Constitution.9
[s 1.5] Not a penal enactment.—
The Code is not a penal enactment. It lays down the procedure to be followed, not only in punitive
trials under the penal enactments and other enactments containing penal provisions, but it also confers
certain powers on Courts, Executive Authorities and Police Officers, to take certain types of action to
meet certain situations in the larger interests of the general public.10
[s 1.6] Procedural Law.—
The Criminal Procedure Code is mainly an adjective law of procedure. The object of a Code of
Criminal Procedure is to provide a machinery for the punishment of offenders against the substantive
criminal law,11 eg the Indian Penal Code. In fact, the two Codes are to be read together. Some terms
are specially defined in the Criminal Procedure Code, but in the absence of such definition, the
definitions set out in the Indian Penal Code are to be adopted [section 2(y)]. The Code also provides
machinery for punishment of offences under other Acts. It is, however, worth noting that the Code is
not a pure adjective law. There are certain provisions of the Code which partake of the nature of
substantive law, eg prevention of offences (chapters VIII, X and XI) and maintenance proceedings
(chapter IX).
While criminal trials are conducted in accordance with the procedure laid down in the Code of
Criminal Procedure, proceedings in relation to juveniles are conducted under the Juvenile Justice
(Care and Protection of Children) Act, 2000. The juvenile trial aims to reform and rehabilitate an
errant juvenile who is in conflict with law. On the other hand, criminal trial aims at finding guilt or
innocence with the object to punish the guilty. Thus, the scheme under the juvenile justice system and
the criminal justice system is different.12
[s 1.7] No vested right in any course of procedure.—
The Code is essentially a procedural law.13 Any irregularity or error in the mode or method of trial
does not necessarily go to the jurisdiction of the court but is curable under Code. It is the essence and
not the form which should weigh with Courts in assessing the nature of the violation and its effect.14
The real question is whether disregard of a particular provision amounts to substantial denial of trial as
contemplated by the Code and the notion of natural justice.15 There is no reason why the court should
be astute to find a lacuna in the procedural law.16 The law is well-settled that no person has a vested
right in any course of procedure.17
[s 1.8] Violation of procedure.—
Enactments regulating the procedure in Courts seem usually to be imperative and not merely
directory.18 In other words, the rules of procedure are enacted to be obeyed. The object of these rules

is to simplify and shorten proceedings. It is not always easy to keep strictly to the line of procedure
prescribed and irregularities do occur now and then in trials of cases. The Code itself divides such
irregularities into two classes : (1) irregularities which do not vitiate proceedings (section 460) and (2)
irregularities which vitiate proceedings (section 461). It also provides that no error, omission or
irregularity in a trial shall vitiate a finding, sentence or order unless it has occasioned a failure of
justice (sections 464, 465). The Code further preserves the inherent right of the High Court to make
orders (1) to give effect to any order under the Code, or (2) to prevent abuse of the process of any
court, or (3) to secure the ends of justice (section 482). It being a Central Act can be amended by
Amendment Act assented to by the President but cannot be amended by simple notification.19
[s 1.9] Exhaustive Code.—
So far as it deals with any point specifically, the Code must be deemed to be exhaustive and the law
must be ascertained by reference to its provisions; but where a case arises, which demands
interference and it is not within those for which the Code specifically provides, it would not be
reasonable to say that the court had not the power to make such order as the ends of justice required.20
Criminal Procedure Code 1973 is an exhaustive Code.21 Absence of any provision on a particular
matter in the Code does not mean that there is no such power in a Criminal Court which may act on
the principle that every procedure should be understood as permissible till it is shown to be prohibited
by law.22
CBI Manual is subject to the provisions of Code of Criminal Procedure, 1973 in case of conflict latter
would prevail.23
[s 1.10] Limitation.—
In general, there is no limitation of time in filing complaints. They can be filed at any time. But it is to
be remembered that delay in the filing of complaints is attended with two evils first, the memory of
witnesses is likely to fade by passage of time; and, secondly, valuable links of evidence may
disappear, eg death of witnesses, destruction of property, etc. The Indian Limitation Act (XXXVI of
1963) provides periods of limitation within which appeals and revision applications should be filed
(Articles 114, 115 and 131). A specific chapter, viz. chapter XXXVI, containing sections 467 to 473
prescribing limitations for taking cognizance of certain offences, has been introduced in the present
Code.
[s 1.11] Aggrieved person.—
Ordinarily, it is open to anyone, even a stranger, to set the criminal law in motion.24 The Supreme
Court has held that a committal enquiry of accused charged under sections 493 and 496 of the Penal
Code did not abate on account of complainant’s death after filing the complaint and that the mother of
the complainant could be allowed to conduct the prosecution.25 Under the present Code, committal
proceedings have been omitted. In certain classes of offences, however, it is only the person aggrieved
who can start the proceedings (see sections 195 to 199, infra).
[s 1.12] Retrospective operation.—
As a general rule, alterations in the form of procedure are retrospective in character unless there is

some good reason or other why they should not be.26
[s 1.13] Tribal areas.—
“Tribal Areas” means the territories which immediately before the 21st day of January, 1972 were
included in the tribal areas of Assam as referred to in para 20 of the Sixth Schedule of our Constitution
other than those within local limits of the municipality of Shillong.
Para 5(1) of the Fifth Schedule, Pt B of our Constitution runs as under:—
Notwithstanding anything in this Constitution, the Governor may by public notification, direct that any particular Act of the
Parliament or of the legislature of the State shall not apply to a Scheduled Area or any part thereof in the State subject to such
exceptions and modifications, as he may specify in the notification and any direction given under this sub-paragraph may be given
so as to have retrospective effect.
In exercise of this power, the Governor of Andhra Pradesh issued a notification published in the
Gazette of 29 March 1974 directing that this Code shall apply to the Scheduled areas in the State of
Andhra Pradesh subject to the modification that in section 1(2) of this Code after the existing proviso,
the following proviso shall be inserted.
Provided further that the provisions of this Code shall not apply on and from the 1st day of April, 1974 to the Scheduled areas in
the State of Andhra Pradesh, but the State Government may by notification, apply such provisions or any of them to the whole or
part of such scheduled areas with effect from such date or dates and with such supplemental, incidental or consequential
modifications as may be specified in the notification.
This direction came into force on the 1 April 1974.
By virtue of this notification another proviso has been added, directing the tribal areas, which are
scheduled areas also, will be governed by the provisions of the Criminal Procedure Code, 1898. This
Code shall not apply to the tribal areas of Andhra Pradesh.27 The new CrPC, 1974 has not been
extended to agency tracts in State of AP; the trial of the criminal cases is still governed by old CrPC
1898.28

[s 1.14] Interpretation of Statutes—General Principles.—
Each case, more particularly a criminal case depends on its own facts and a close similarity between
one case and another is not enough to warrant like treatment because a significant detail may alter the
entire aspect. In deciding such cases, one should avoid the temptation to decide cases (as said by
Cardozo) by matching the colour of one case against the colour of another. To decide therefore on
which side of the line a case falls, the broad resemblance to another case is not at all decisive.29
Speaking for the Supreme Court Bench, Pasayat J, elaborated that how a person reacts in a given case
may be the determinative factor so far as that case is concerned. That cannot be applied as a rule of
universal application to all cases irrespective of the fact situation in that particular case. There can be
no empirical formula as to how one reacts in a given situation and its effect and impact. It would be
almost like trying to put a square peg on a round hole.30
It is well-settled principle that the intention of the Legislature must be found by reading the Statute as
a whole. Every clause of Statute should be construed with reference to the context and other clauses of
the Act, so as, as far as possible, to make a consistent enactment of the whole Statute. It is also the
duty of the court to find out the true intention of the Legislature and to ascertain the purpose of Statute
and give full meaning to the same. The different provisions in the Statute should not be interpreted in
abstract but should be construed keeping in mind the whole enactment and the dominant purpose that
it may express.31 In the above case relating to grant of bail under the POTA, the Supreme Court further
clarified that if the interpretation put forward by accused is accepted, it would mean that a person
whose bail under POTA has been rejected by the special court, will have two remedies and he can
avail any of them at his sweet will. To interpret a statutory provision in such a manner that a court can
exercise both appellate and original jurisdiction in respect of the same matter will lead to an
incongruous situation.32
There is a presumption in favour of the constitutionality of statutes as well as delegated legislation.33
A statute enacting an offence or imposing a penalty is strictly construed.34
The use of the word “may” throws light on the legislative intent in the context it is used.35
The courts as a rule lean against implied repeal unless the provisions are plainly repugnant to each
other. There is also a presumption against repeal by implication; and the reason of this rule is based on
the theory that the Legislature while enacting a law has complete knowledge of the existing laws on
the same subject matter, and, therefore, when it does not provide a repealing provision it gives out an

intention not to repeal the existing legislation.36
When a word is not defined in the Act itself, it is permissible to refer to dictionaries to find out the
general sense in which that word is understood in common parlance. However, in selecting one out of
the various meanings of a word, regard must always be had to the context, as it is a fundamental rule
that “the meaning of words and expressions used in an Act must take their colour from the context in
which they appear.”37
If the choice is between two interpretations, the narrower of which would fail to achieve the manifest
purpose of legislation, we should avoid a construction which would reduce the legislation to futility
and should rather accept the bolder construction based on the view that Parliament would legislate
only for the purpose of bringing about an effective result.38
Where alternative constructions are equally open, that alternative is to be chosen which the statute
purports to be regulating; and that alternative is to be rejected which will introduce uncertainty,
friction or confusion into the working of the system.39
One should not consider dictionary meanings when a plain reading of the provision brings out what
was intended.40 The provisions of the NDPS Act would prevail over the provisions of Code of
Criminal Procedure, 1973 only to the extent that the offences under the Act shall be cognizable and
regarding consideration of bail for offences under sections 19, 24 and 27A only. In other matters the
provisions of Code of Criminal Procedure, 1973 would apply.41
The doctrine “Contemporanea exposit to est optima et fortissimm” has no application when
interpreting a provision of an on-going statute like the Criminal Procedure Code.42
The Statement of Objects and Reasons is not otherwise admissible as an aid to the construction of a
Statute, but the same assists as to the necessity of introduction of such a law. While construing the
clear terms of an Act the court is not required to ascertain the object of the enactment, though in case
of an urgent need of the situation by reason wherefore the intent of the Legislature is to be assessed,
the Statement of Objects can be looked into for the limited purpose of ascertaining the conditions
prevailing at the time which prompted or actuated the proposer of the Bill to introduce the same and
the extent of remedying the existing evil in the society.43 Statements of Objects and Reasons cannot be
the exclusive footing upon which a statute is made a nullity, through a decision of a court of law.44

Reference to the Statement of Objects and Reasons is permissible for understanding the background,
the antecedent state of affairs, the surrounding circumstances in relation to the statue, and the evil,
which the statute sought to remedy. The weight of judicial authority leans in favour of the view that
the Statement of Objects and Reasons cannot be utilized for the purpose of restricting and controlling
the plain meaning of the language employed by the Legislature in drafting a statute and excluding
from its operation such transactions which it plainly covers.45
The marginal heading of the section or the marginal note may be relied upon to clear any doubt or
ambiguity in the interpretation of the provision and to discern the legislative intent.46
1 Statement of Objects and Reasons, Gazette of India Extraordinary, Pt II, section 2, pp 1309-1310.
2 KRK. Vara Prasad v UOI, AIR 1980 AP 243 (DB).
3 Madhavkumar Anand, 1984 Cr LJ NOC 175 (Punj).
4 Anita Kushwaha v Pushap Sudan, (2016) 8 SCC 509 : AIR 2016 SC 3506 : 2016 Cr LJ 4151 : 2016 (7) Scale 235 .
5 Anita Kushwaha v Pushap Sudan, (2016) 8 SCC 509 : AIR 2016 SC 3506 : 2016 Cr LJ 4151 : 2016 (7) Scale 235 .
6 Mowu v Superintendent, Special Jail Nowgong, Assam, (1971) 3 SCC 936 : 1972 SCC (Cri) 184 : 1971 Cr LJ (N) 1 (SC).
7 Elliott and Word’s cases and material on Criminal Law, 8th Edn p 5 and 6.
8 Surinder Singh Ahluwalia v Delhi Special Police Establishment, 1991 Cr LJ 2583 (2590) (Del-DB) : ILR 1991 Delhi 228 .
9 Indra Kumar v State of Bihar, AIR 1988 Pat 309 .
10 Parthasarathy v Banumathy, 1988 (3) Crimes 642 , 645 (Mad) : 1988 Mad LW (Crl) 333 .
11 Green Empress v Mona Puna, (1892) 16 Bom 661.
12 Subramanian Swamy v Raja, AIR 2014 SC 1649 : (2014) 8 SCC 390 .
13 Asst Collector v Uttam Bala Revankar, 1970 Cr LJ 421 (Goa) : 1970 AIR 1765 : 1971 SCR (1) 714 .

14 Abdullah Bhat v Gulam Mohd Wani, 1972 Cr LJ 277 (J&K-FB).
15 W Slaney v State of MP, AIR 1956 SC 116 : 1956 Cr LJ 291 ; Sirajuddin v Govt. of Madras, AIR 1968 Mad 117 : 1968 Cr LJ 493
.
16 Ashwin v State of Maharashtra, AIR 1967 SC 983 : 1967 Cr LJ 943 : (1967) 1 SCR 807 .
17 Anant Gopal Sheorey v State of Bombay, AIR 1958 SC 915 : 1958 Cr LJ 1429 .
18 Maxwell on the Interpretation of Statutes, 10th Edn, p 379.
19 Virendra Singh v State of UP, 2002 All LJ 2044 : 2002 Cr LJ 4265 (4266) (All-DB).
20 Nagen Kundu v Emperor, (1934) 61 Cal 498 ; Popular Muthiah v State, (2006) 7 SCC 296 : (2006) 3 SCC (Cri) 245 .
21 Popular Muthiah v State, (2006) 7 SCC 296 : (2006) 3 SCC (Cri) 245 .
22 Hansraj, (1942) Nag 333; Rahim Sheikh, (1923) 50 Cal 872 , 875.
23 MC Mehta v UOI, AIR 2007 SC 1087 : (2007) 1 SCC 110 .
24 Ganesh Narayan Sathe, Re, (1889) 13 Bom 600.
25 Ashwin v State of Maharashtra, AIR 1967 SC 983 : 1967 Cr LJ 943 : (1967) 1 SCR 807 .
26 TK Narayanaswamy v State of Karnataka, 1991 Cr LJ 2115 , 2123 (Kant); Nani Gopal Mitra v State of Bihar, AIR 1970 SC 1636 :
1970 Cr LJ 1396 : (1969) 2 SCR 411 .
27 State of AP, Re, 1992 Cr LJ 1827 (AP); Savalam Suranna Dora v State, 2004 Cr LJ 427 (430) (AP).
28 Savalam Suranna Dora v State, 2004 Cr LJ 427 (430) (AP) : 2003 (2) Andh LD (Cri) 742.
29 Parasa Raja Manikyala Rao v State of AP, AIR 2004 SC 132 : (2003) 12 SCC 306 : 2004 Cr LJ 390 (393, 394) (SC).
30 Parasa Raja Manikyala Rao v State of AP, AIR 2004 SC 132 : (2003) 12 SCC 306 : 2004 Cr LJ 390 (393, 394) (SC).
31 State of Gujarat v Salimbhai Abdul Gaffar Shaikh, AIR 2003 SC 3224 : (2003) 8 SCC 50 : 2003 Cr LJ 4348 (4352) : (2003) 3
Crimes 368 .

32 State of Gujarat v Salimbhai Abdul Gaffar Shaikh, AIR 2003 SC 3224 : (2003) 8 SCC 50 : 2003 Cr LJ 4348 (4352) : (2003) 3
Crimes 368 .
33 Hinsa Virodhak Sangh v Mirzapur Moti Kuresh Jamat, (2008) 5 SCC 33 (49) : AIR 2008 SC 1892 .
34 Sakshi v UOI, AIR 2004 SC 3566 : (2004) 5 SCC 518 (537) : 2004 SCC (Cri) 1645 : (2004) 98 Cut LT 491.
35 Mangilal v State of MP, AIR 2004 SC 1280 : (2004) 2 SCC 447 : 2004 SCC (Cri) 1085 : (2004) 1 Ker LT 1038 : 2004 Cr LJ 880
(884) (SC).
36 UOI v Venkatesan S, AIR 2002 SC 1890 : (2002) 5 SCC 285 : 2002 SCC (Cri) 1121 : 2002 Cr LJ 2790 (2795).
37 S Samuel v UOI, AIR 2004 SC 218 (222) : (2004) 1 SCC 256 : (2004) 134 STC 610 .
38 Maxwell on Interpretation of Statutes, 12th Edn p 45 quoting Nokes v Don Caster Amalgamated Collieries Ltd, [1940] AC 1014 ,
per Viscount Simon LC.
39 Maxwell on Interpretation of Statutes, 12th Edn p 45, quoting Shannon Realities Ltd v Ville do St. Michel, [1924] AC 185 per Lord
Shaw.
40 State of Maharashtra v Praful B Desai, AIR 2003 SC 2053 : (2003) 4 SCC 601 : (2003) 2 Crimes 237 : (2003) 2 Mah LJ 868 :
2003 Cr LJ 2033 (2038).
41 Abdul Aziz v State of UP, 2002 All LJ 1231 : (2002) 1 EFR 598 : 2002 Cr LJ 2913 (2914) (All).
42 State of Maharashtra v Praful B Desai, 2003 Cr LJ 2033 (2040) : AIR 2003 SC 2053 : (2003) 4 SCC 601 : (2003) 2 Crimes 237
(SC).
43 Subhash Ramkumar Bind v State of Maharashtra, AIR 2003 SC 269 (276, 277) : 2003 Cr LJ 443 : (2003) 1 Crimes 108 : (2003) 1
SCC 506 ; Bakhtawar Trust v MD Narayan, (2003) 5 SCC 298 (313) : AIR 2003 SC 2236 .
44 Bakhtawar Trust v MD Narayan, (2003) 5 SCC 298 (313) : AIR 2003 SC 2236 .
45 See Justice GP Singh, Principles of Interpretation of Statutes, 8th Edn 2001, pp 206-209, quoted in Bhaiji v Sub-Divisional Officer,
Thandla, (2003) 1 SCC 692 (700) : (2002) Supp 5 SCR 116.
46 Prakash Nath Khanna v CIT, 2004 AIR SCW 3692 : 2004 Cr LJ 3362 (3368) : (2004) 9 SCC 686 : (2004) 2 Crimes 181 (SC).
End of Document

[s 2] Definitions.-
[s 2] Definitions.-
In this Code, unless the context otherwise requires,—
(a) “bailable offence”
means an offence which is shown as bailable in the First Schedule, or which is made
bailable by any other law for the time being in force; and “non-bailable offence”
means any other offence;
A person accused of a bailable offence is treated differently; at any time while under detention without
a warrant and at any stage of the proceedings before the court before which he is brought, he has the
right under section 436 to be released on bail.47 An offence under Defence of India Rules, 1962, rule
125 is non-bailable.48 An offence under sections 8/21 NDPS Act, 1985 is bailable offence.49
All offences under the Railway Property (Unlawful Possession) Act, 1966 are not bailable.50
An offence of evasion of custom duty under section 135(1)(ii) of the Customs Act, 1962, is bailable
one, the Magistrate would not remand the accused to judicial custody.51
Where the petition for anticipatory bail has been disallowed, the issuance of non-bailable warrant
against the accused is proper, for it is not necessary to issue bailable warrant against such an
accused.52
Section 20 of the Central Excise Act, 1944, provides that the officer-in-charge of a police station to
whom any person is forwarded under section 19, shall either admit him to bail to appear before the
Magistrate having jurisdiction, or on his failure to provide bail, forward him in custody to such
Magistrate. Therefore, the said provision clearly indicates that offences under the Central Excise Act,
1944, as set out in section 9 of the Act are bailable.53
Mmaneesh Bajpai
[s 2] Definitions.-
47 Ratilal Bhanji Mithani v Asst. Collector of Customs, Bombay, AIR 1967 SC 1639 : 1967 Cr LJ 1576 .
48 Re, TS Chokalingam, AIR 1946 Mad 390 : 47 Cr LJ 843.
49 Abdul Aziz v State of UP, (2002) 2 All LJ 1231 : (2002) 3 Rec CrR 416 : 2002 Cr LJ 2913 (2915) (All).
50 UOI v State of Assam, (2004) 7 SCC 474 : 2004 SCC (Cri) 951 : 2004 Cr LJ 4647 (4649) (SC).
51 Subhash Choudhary v Deepak Jyala, 2005 Cr LJ 1034 (1040) (Bom) : 2005 (179) ELT 532 (Bom).
52 Bittu v State of Rajasthan, 1998 Cr LJ 3036 (Raj).
53 Om Prakash v UOI, AIR 2012 SC 545 : (2011) 14 SCC 1 .
End of Document

(b) “charge”
(b) “charge”
“charge” includes any head of charge when the charge contains more heads than one;
The charge is “a precise formulation of the specific accusation made against a person who is entitled
to know its nature at the earliest stage.”54
A person affected by false charge can file complaint even before the police decides that the charge is
false.55
54 Reily v Emperor, (1901) ILR 28 Cal 434; Esher Singh v State of AP, AIR 2004 SC 3030 : (2004) 11 SCC 585 .
55 ML Sethi v RP Kapoor, AIR 1967 SC 528 (536) : 1967 Cr LJ 528 .
End of Document
Mmaneesh Bajpai
(c) “cognizable offence”
“cognizable offence” means an offence for which, and “cognizable case” means a case in which,
a police officer may, in accordance with the First Schedule or under any other law for the time
being in force, arrest without warrant;
[s 2.1] Scope of section 2(c).—
Offences for which special authority to arrest is given to special officers are not cognizable offences,
eg, an offence under section 5 of the Bombay Prevention of Gambling Act is not a cognizable
offence.56 In order to be a cognizable case under this section it would be enough if one or more (not
necessarily all) of the offences are cognizable offences.57 The expression “or under any other law for
the time being in force” in clause 2(c) is wide enough to include an express or implied provision of
any law or enactment.58
The words “or under any other law for the time being in force” in section 2(c) have reference to such
offences which are punishable with imprisonment for less than three years but are specified as
offences for which police may arrest without a warrant, that is offences which but for the specific
provision would not under the Code be cognizable offences.59 The Code does not declare any case to
be partly cognizable and partly non-cognizable. Where one of the offences in a case is cognizable, and
the rest are non-cognizable, the case is a cognizable one.60
“A police officer” in clause (c) means only such particular class of officers as are bestowed with
unqualified power to arrest without warrant.61
The offences punishable with fine only are not cognizable one.62
Mmaneesh Bajpai
The offences under Prevention of Corruption Act, 1988, are cognizable offences.63
A complaint regarding an offence under section 7 of the Essential Commodities Act is cognizable
within the meaning of this provision.64 Where the offence complained of under the Essential
Commodities Act is punishable with three years imprisonment, it is a cognizable office.65
The offences under the Prevention of Food Adulteration Act, 195466 are cognizable.67
[s 2.2] Non-cognizable offence.—
Offence under section 33A of the Calcutta Suburban Police Act, 1866 is not a cognizable offence.68
Driving by a drunken person is a non-cognizable offence. It has been held that limited power to arrest
such person without warrant given to police officer in uniform does not make offence under section
185 of the Motor Vehicles Act, 1988 a cognizable offence.69
[s 2.3] Any law other than Indian Penal Code, 1860—
An offence under any law other than Indian Penal Code, 1860 would be non-cognizable, if it is
punishable with imprisonment for less than three years or with fine only.70
56 Haji Mahmood Khan v Crown, (1942) Kar 94 .
57 Vadlamudi Kutumba Rao, (1961) 2 Cr LJ 605 : AIR 1961 AP 448 .
58 Emperor v Ismail, AIR 1930 Bom 49 : (1929) 31 Bom LR 1349 .
59 Magan Lal v Emperor, AIR 1934 Ngp 71 : 35 Cr LJ 1097.
60 Vadlamudi v State of AP, AIR 1961 AP 448 : 1961 Cr LJ 605 .
61 State of Gujarat v Lal Singh, AIR 1981 SC 368 (371) : (1981) 2 SCC 75 : 1980 Cr LJ 1431 ; UOI v IC Lala, AIR 1973 SC 2204 :
(1973) 2 SCC 72 : 1973 Cr LJ 1190 .

62 King v Maung Thoung Shwe, AIR 1938 Rang 161 (B).
63 UOI v IC Lala, AIR 1973 SC 2204 : (1973) 2 SCC 72 : 1973 Cr LJ 1190 .
64 AK Jain v UOI, AIR 1970 SC 267 : (1969) 2 SCC 340 : 1970 Cr LJ 367 .
65 AK Jain v UOI, AIR 1970 SC 267 : (1969) 2 SCC 340 : 1970 Cr LJ 367 .
66 Now repealed by the Food Safety and Standards Act, 2006 (34 of 2006) (w.e.f. 29 July 2010).
67 State of Maharashtra v Deepchand Khushalchand Jain, 1983 (1) Crimes 490 : 1983 Cr LJ 561 (Bom).
68 State of WB v Jogindar Mallick, 1979 Cr LJ 539 (Cal).
69 Sandeep Indravadan Sagar v State of Maharashtra, 2013 Cr LJ 1147 (Bom) : 2013 (1) Bom CR (Cri) 487 .
70 Narain Singh v State, 1986 (1) Crimes 535 , 537 (Del) : (1986) 30 DLT 118 .
End of Document

(d) “complaint”
(d) “complaint”
means any allegation made orally or in writing to a Magistrate, with a view to his taking action
under this Code, that some person, whether known or unknown, has committed an offence, but
does not include a police report.
Explanation. —A report made by a police officer in a case which discloses, after investigation,
the commission of a non-cognizable offence shall be deemed to be a complaint; and the police
officer by whom such report is made shall be deemed to be the complainant;
COMMENTS[s 2.4] Legislative changes in section 2(d).—
The words “the report of a police officer” in clause (h) of section 4 of the old Code, 1898, have been
substituted by the words “a police report”, in the present new Code. In view of the conflicting
decisions and uncertainty in regard to the definition and the connected provisions in sections 173, 190,
207A and 251A of the Code, as recommended by the Law Commission in its 37th Report, agreed to
by the Law Commission in its subsequent 41st Report, the change has been made to make it clear that
the report made by the police, on an unauthorised investigation of a non-cognizable case, is a
complaint.71
[s 2.5] Scope of section 2(d).—
In general a complaint into an offence can be filed by any person, except in cases of offences relating
to marriage, defamation and offences mentioned in sections 195 to 197.72
[s 2.6] Any person can file complaint.—
Anyone can set the law in motion and no specific authorisation is necessary to file the complaint. The
complaint is made with the object that the Magistrate should take action. No form is prescribed which
the complaint may take. A complaint may be filed in the name of Union or State even when the officer
may retire or resign or die or otherwise not be available. A complaint has to be filed by an officer of
the Union as representing Union of India, as the Union of India has to exercise its power and authority
through the officers competent to act on behalf of Union of India. The ends of justice should not be
allowed to be sacrificed at the altar of mere technicalities even when the case is proved to the hilt and
the accused is found otherwise guilty. The fact that the complaint was not filed by a person duly
Mmaneesh Bajpai
(d) “complaint”
authorised cannot render the proceedings incompetent or invalid.73
There is no specific provision in the Code of Criminal Procedure, 1973 or in the rules framed
thereunder, how a criminal complaint has to be drafted. What has to be seen is whether the entire
substance of the complaint prima facie makes out an offence said to have been committed, or whether
there is a ground to presume on the entire reading of the substance of the complaint that the offence is
likely to have been committed.74 The complainant need not be the aggrieved person, any person
having knowledge of the offence can file complaint.75 Further, the complaint need not be filed by a
person having personal knowledge of the facts of the case or by an eyewitness.76
A complaint filed by a sub-dealer of the goods under sections 81, 82 or section 83 of the Trade and
Merchandise Marks Act would not be dismissed on the mere ground that only the registered owner of
the trade mark can file complaint.77
For exceptions, see, however, sections 195, 196, 198 and 199 Code of Criminal Procedure, 1973.
Where complaint for offence under section 494 Indian Penal Code, 1860 was filed by the father of the
first wife and not by the first wife herself, held it was not filed by aggrieved person as required by
section 198(1) Code of Criminal Procedure, 1973 hence the cognizance taken was quashed.78
As a general rule, any person having knowledge of the commission of an offence may set the criminal
law in motion by a complaint even though he is not directly interested in or affected by the offence
complained of. For the purpose of filing a complaint in a Criminal Court, the Misrilal Mangilal
Maternity and Child Welfare Centre Construction Committee which is an association or body of
individuals, is a “person” and it is immaterial whether it is a registered body or an unregistered body
and whether it can sue or be sued in its name in a Civil Court. The provisions of the Civil Procedure
Code in regard to suits by or against companies, corporations and firms, have no relevance to the
prosecution under the criminal law.79
[s 2.7] Authority to file complaint.—
If complaint by Assistant Collector of Customs is regular in material particulars, it is maintainable,

even if the letter of authority from the Union of India is not obtained.80
Excise Sub-Inspector is not competent to file a complaint for contravention of section 37 of MP Excise
Act except on the authority of the Collector.81
When a clause of the enactment describes the person who could be prosecuted, it does not require that

(d) “complaint”
each and every attribute of his office or power must in terms be stated in the complaint itself.82
A report filed by the Commissioner of Police or any person authorized by him under section 16 of the
AP Prevention of Disfigurement of Open Place and Prohibition of Obscene and Objectionable Posters
and Advertisements Act, 1997 before the Magistrate for offences under sections 3 and (or) 4 of the
Act is a complaint.83
[s 2.8] Complaint by firm.—
Complaint by a registered partnership firm is a complaint within the meaning of this section.84
[s 2.9] Complaint by Food Inspector.—
Complaint with a prayer for punishment of the accused, under section 16(1)(a)(i) read with section 7
of the Prevention of Food Adulteration Act, 1954, filed by the Food Inspector is deemed to be a
complaint instituted under section 13(2) of the Act.85
[s 2.10] Essentials of a complaint.—
A complaint in a criminal case is what a plaint is in a civil case. It is one of the modes in which a
Magistrate can take cognizance of an offence (section 190). The requisites of a complaint are : (1) an
oral or a written allegation; (2) that some person known or unknown has committed an offence; (3) it
must be made to a Magistrate86 and (4) it must be made with the object that he should take action.87 It
is not necessary for a complainant to set out in a complaint all the evidence in his possession.88 Every
minuscule fact need not be pleaded. The administration of criminal law is more a matter of substance
than of form and should not be allowed to be befogged by hair-splitting technicalities. It is now well-
settled beyond cavil that a complaint in a criminal case is not to be an encyclopaedia of all the facts.89
The concept of the strict rules of pleadings in a civil law cannot be imported in criminal pleadings.90
Where the application filed before Magistrate states facts constituting cognizable offence but makes
defective prayer, such an application will not cease to be a complaint, nor the Magistrate can refuse to
treat it as a complaint, even though there is no prayer, seeking trial of known or unknown accused,
made.91
The words “complainant” and “informant” are not words of literature and cannot be used
interchangeably. In a case registered under section 154 of the Code, the State is the prosecutor and the
person whose information is the cause for lodging the report is the informant. However, the
complainant is the person who lodges the complaint. The word “complaint” is defined in the Code to
mean any allegation made orally or in writing to a Magistrate. Therefore, these words carry different
meanings.92

(d) “complaint”
A “petition” or an “information” can be treated as a “complaint” if the maker of the accusations seeks
a direction to be given to the police to enter the information of commission of offence into the register
maintained by them in terms of section 154, treat such entry as FIR and investigate the case.93 An
application under section 156(3) can be treated as complaint.94
[s 2.11] “Orally or in writing”.—
A complaint under the Code may be made orally or in writing.95 No form of complaint has been
prescribed in the Code, nor the Code lays down how the complaint is to be drafted. All that is
necessary is that the allegations made in the complaint, must disclose the commission of an offence
and contain necessary facts for a Magistrate to take action.96 There must be allegation that an offence
has been committed, the facts alleged must disclose that an offence has been committed.97
It is not necessary to mention the section of the Act under which the offence has been committed.98
It is not sufficient to repeat the words of the section under which offence has been committed, facts
constituting offence must be alleged.99
Only allegations made, whether orally or in writing, to a Magistrate with a view to his taking action
under the Code can be termed as a complaint.100
A prayer must be made in the complaint, for taking action,101 which may be express or implied.102
When a complaint is filed with the allegation that a particular person has committed offence and
prayer for section 156(3), Code of Criminal Procedure, 1973 is made, obviously the object is that the
Magistrate should take action against the accused as is prescribed by law ie Criminal Procedure Code.
Therefore, absence of any prayer of taking action against the accused according to law and/or to
punish them according to law, does not affect the legality and validity of the complaint.103
[s 2.12] Offences by companies.—
In all complaints against a Chairman, Managing Director or General Manager of the company under
the Water (Prevention and Control of Pollution) Act, it is not necessary to incorporate the words “he
was in charge of, and was responsible to the company for the conduct of the business of the
company”.104
[s 2.13] Form of complaint.—
No doubt under the Code no form for filing complaint is prescribed. It can even be an oral one. But, at
the same time, it should at least disclose that the accused have committed or omitted to do a particular
act which is an offence and it must disclose the necessary facts which prima facie, constitute an

(d) “complaint”
offence, under a particular Act. It is expected that in the complaint concisely all ingredients of an
offence and the responsibility of the concerned officer are required to be mentioned.105 No form is
prescribed which the complaint may take. The word has a wide meaning.106
There is no particular format of a complaint. A petition addressed to the Magistrate containing an

allegation that an offence has been committed, and ending with a prayer that the culprits be suitably
dealt with, is a complaint. The nomenclature of a petition is inconsequential.107
An affidavit containing allegations of commission of offence was held complaint.108
[s 2.14] Allegations should constitute an offence.—
It is the allegation of facts which constitutes a complaint. An omission to mention the offence made
out by the facts, or the mentioning of a wrong section of the Indian Penal Code, does not vitiate a
complaint and does not take away the jurisdiction of the court to try a person complained against for
the offences which can be made out on the basis of the allegations in the complaint.109 A charge-sheet
submitted by police cannot be regarded as complaint.110 Allegations which do not amount to an
offence would not be a complaint.111 A mere sentence viz., that the accused have committed offences
punishable under heinous offences would not be a complaint of facts on which cognizance can be
taken.112 A complaint need not contain all details of prosecution evidence.113
It is not necessary that a complainant should verbatim reproduce in the body of his complaint, all the
ingredients of the offence he is alleging. Nor it is necessary that the complainant should state in so
many words that the intention of the accused was dishonest or fraudulent.114
The word complaint referred to in section 195 is a complaint to the court and not a complaint to the
Police.115
Statements made by complainant during examination by Magistrate or during enquiry cannot form
part of complaint.116
Where a complaint alleged commission of an offence under section 498A of the Indian Penal Code,
1860 and also offence under section 494 of the Indian Penal Code, it was held by the Supreme Court
that offence under section 498A of the Penal Code does not fall under chapter XX but it falls under
chapter XXA of the Penal Code. Hence, Court can take cognizance thereof even on a police report. It
was observed that it cannot be said that cognizance could be taken only on complaint made by the
aggrieved person.117 Ranjana Prakash Desai J (speaking for the Bench) explained the proposition as

(d) “complaint”
follows:
The above provisions indicate that whereas section 190(1) empowers the Magistrate to take cognizance of any offence, upon
receiving complaint of facts which constitute such offence; upon police report of such facts; upon information received from any
person other than a police officer or upon his knowledge that such offence has been committed. Section 198 which relates to
prosecution of offences against marriage brings in the concept of complaint by an aggrieved person and section 198(1)(e) explains
how far the scope of term “aggrieved person” can be extended in the context of offence under section 494 of the Indian Penal
Code, 1860
It was further observed:
Explanation to section 2(d) makes it clear that a report made by a police officer after investigation of a non cognizable offence is to
be treated as a complaint and the officer by whom such a report is made is to be deemed to be the complainant.
13. Above provisions, lead us to conclude that if a complaint contains allegations about commission of offence under section 498 A
of the Indian Penal Code, 1860 which is a cognizable offence, apart from allegations about the commission of offence under
section 494 of the Indian Penal Code, 1860, the court can take cognizance thereof even on a police report.118
In a case, the accused filed forged and fabricated document before Motor Accident Claims Tribunal.
The Tribunal informed about the said offence to Additional Deputy Commissioner. The accused raised
the plea that the court could not take cognizance in absence of complaint in writing by the public
servant concerned, but there was no separate complaint in writing. It was held that the material on
record revealed forgery and a prima facie case under section 193, Indian Penal Code, 1860. It was
observed that when documents are allegedly forged, compliance of section 195 or section 340 of the
Code are not required. The information given by the Tribunal containing sufficient allegation against
the accused constitute “complaint” and there is no impediment in taking cognizance.119
[s 2.15] Protest petition.—
A protest petition is in the nature of a complaint and should be dealt with in accordance with the
provisions of chapter XVI of the Code.120 Every protest petition cannot be treated as a complaint.121
A protest petition is considered as a complaint under this section provided it satisfies the requirements

(d) “complaint”
of this section.122 A Naraji filed against the report of an enquiry under section 202 if it satisfies the
requirements of a “complaint”, may after dismissal of the petition of complaint, be treated as a fresh
complaint and disposed of as such.123
Section 199(2) requires a complaint by the Public Prosecutor only and the complaint is not required
also to be signed by the person aggrieved.124
[s 2.16] Petty case charge-sheet.—
The report or complaint of “Petty case charge sheet” submitted by a police officer cannot be
considered as a police report falling under section 173. It can be treated as a complaint only.125
[s 2.17] Police report.—
A police report under section 7(b) of the Dowry Prohibition Act, 1961 is a complaint.126
Unless a report made by a police officer falls within the purview of section 173(2) it cannot be said to
be a police report. Hence, by necessary implication, a report by a police officer in consequence of an
unauthorised investigation into a non-cognizable offence would necessarily be a complaint.127
Where the police investigates into a non-cognizable offence without obtaining any order of a
Magistrate as required under this section and submits a report thereafter, the report submitted by the
police should be treated as a complaint.128
[s 2.18] Negotiable Instruments Act.—
A complaint for offence under section 138 of the Act can be filed in writing by the payee or the holder
in due course. A power of attorney would not be a holder in due course and not be competent to file
the complaint.129
A complaint for offence under section 142 of the Negotiable Instruments Act shall be signed and
verified by the complainant. Such a complaint signed and verified by the Special Power of Attorney is
not valid.130
In a case of dishonor of cheque under the Negotiable Instruments Act, 1881, a complaint filed before
the expiry of 15 days from the date on which notice has been served on the drawer/ accused, is no
complaint in the eye of law, as the same cannot be said to disclose the cause of action in terms of
clause (c) of the proviso to section 138 of the Act. Upon such a complaint which does not disclose the
cause of action, the court is not competent to take cognizance. It is not open to court to take

(d) “complaint”
cognizance merely because on the date of consideration and taking cognizance, a period of 15 days
from the date of service of notice has elapsed.131 Explaining the proposition of law RM Lodha, CJI
(speaking for the three-Judge Bench) observed as follows:
A conjoint reading of section 138, which defines as to when and under what circumstances an offence can be said to have been
committed, with section 142(b) of the NI Act, that reiterates that position of the point of time when the cause of action has arisen,
leaves no manner of doubt that no offence can be said to have been committed unless and until the period of 15 days, as prescribed
under clause (c) of the proviso to section 138, has in fact elapsed. Therefore, a court is barred in law from taking cognizance of
such complaint. It is not open to the court to take cognizance of such a complaint merely because on the date of consideration or
taking cognizance there of a period of 15 days from the date on which notice has been served on the drawer/accused has elapsed. It
the period prescribed in clause (c) of the proviso to section 138 has not expired; there is no commission of an offence nor accrual
of cause of action for filing of complaint under section 138 of the NI Act.132
[s 2.19] Offence under Customs Act/Gold (Control) Act.—
It is quite appropriate to undertake prose-cutions for serious offences in the name of the State
representing the people even when the informant is an individual. The officer submitting a charge-
sheet in a cognizable case may be an individual police officer. Thus an officer performing a statutory
duty under section 5 of the Customs Act, 1962, or section 4 of the Gold (Control) Act, 1968,133 as the
case may be, even a private individual can file a complaint with requisite sanction under section 137 of
the Customs Act, 1962 or section 97 of the Gold (Control) Act, 1968 as the case may be.134
[s 2.20] Defect : Misdescription in cause title.—
When the Assistant Collector of Customs has, in fact, filed the complaint with requisite sanction in his
official capacity as a public servant, misdescription, if any, is only confined to the cause in the title
and not in the body of the complaint. No prejudice could be claimed to have been caused to the
accused.135
[s 2.21] Offender need not be named.—
It is not necessary that the offender should be named in the case. The Court takes cognizance of the
offence. A complaint cannot be dismissed merely because none is named as accused in the
complaint.136 Where the name of the offender is not given in the complaint, it is the duty of the
Magistrate to inquire into the matter, find out the name of the offender/offenders and then proceed
against him/them according to law.137
[s 2.22] Delay in lodging.—
It is the duty of the prosecution to explain the delay satisfactorily. Failure of the prosecution to do so,
undoubtedly, is a circumstance of considerable importance.138
[s 2.23] Complaint to Sub-divisional Magistrate.—
The Sub-divisional Magistrate has jurisdiction to take cognizance on a complaint petition forwarded

(d) “complaint”
with a report of Sarpanch in a case under rule 43(a) of the Bihar Gram Cutchery Rules, 1962.139
[s 2.24] A complaint held not :
(i) Applications under sections 106, 107, 145 CrPC—An application under section 106, 107 or
section 145 Code of Criminal Procedure, 1973 is not a complaint as there is no allegation that
an offence has been committed.140
(ii) FIR not a complaint.—The word “complaint” cannot be anything more than what is defined
under this section and in accordance with the said definition, the FIR will not be treated as a
complaint. Where cognizance has been taken of the offence which are cognizable the report
made by the Police Officer cannot be brought within the mischief of the explanation of this
section.141
(iii) Charge-sheet.—Charge-sheet submitted by the police under section 23 of the Orissa
(Scheduled Area) Money Lenders’ Regulation, 1967 cannot be regarded as a complaint.142
(iv) Petition under section 125, CrPC—Application under section 125 is not a complaint,143 as
there is no allegation that a person has committed offence.144
[s 2.25] Complaint and police report.—
A “police report”, which is newly defined in clause (r), has been expressly excluded from the
definition of complaint, but the Explanation makes it clear that the report made by the police officer
shall be deemed to be a complaint in a case where after investigation it discloses the commission of a
non-cognizable offence. In such a case the police officer shall be deemed to be the complainant.
A final report submitted by the Sub-Inspector of police in a case registered under sections 20, 27 not
in the capacity of a Police Officer but as an authorized officer under section 25 of the Kerala
Protection of River and Regulation of Sand Act, 2001 was not a report under section 2(r), section
173(2) but was a complaint within the ambit of section 2(d) Code of Criminal Procedure, 1973.145
[s 2.26] Application seeking permission to investigate.—
Grant of permission to the police to investigate into a non-cognizable offence, on application by

police, is not complaint.146
[s 2.27] Complaint sent by post.—
A complaint need not be presented before the Magistrate presently, it may be sent by post.147
[s 2.28] Complaint by two or more persons.—
One view is that a complaint filed by more than one person is valid. A joint complaint was held
valid.148

(d) “complaint”
The other view is that a joint complaint is invalid.149
[s 2.29] Signature/Thumb impression on complaint—omission of.—
One view is that even an unsigned complaint is valid,150 though in the following case contrary view
has been taken.151
In a case under section 138 of the NI Act, 1881, it was held by the Supreme Court that the written
complaint need not be signed by the complainant.152 Explaining the proposition, Sathasivam J (as His
Lordship then was), observed as follows:
13. According to us, the non obstante clause in section 142(a) is restricted to exclude two things only from the Code i.e. (a)
exclusion of oral complaint and (b) exclusion of cognizance on complaint by anybody other than the payee or holder in due course.
Section 190 of the Code provides that a Magistrate can take cognizance on a complaint which constitutes such an offence
irrespective of who made such complaint or on a police report or upon receiving information from any person other than a police
officer or upon his own knowledge. Non obstante clause, when it refers to the core, restraints the power of the Magistrate to take
cognizance only on a complaint by a payee or the holder in due course and excludes the rest of section 190 of the Code.153
[s 2.30] Court fee stamps on complaint.—
See Schedule 2, Article 1 of the Court-fee Act, 1870.
Where complaint is by a public servant or a municipal officer, or an officer or servant of a Railway

Company, no Court fee is payable.154
[s 2.31] Return of complaint.—
There is no provision in the Code of Criminal Procedure, 1973 for the return of the complaint, merely
because it contains defects, the complainant has to suffer.155
[s 2.32] Section 2(d) Explanation.—
In view of the Explanation of clause (d), the police is entitled to submit, after investigation, a report
relating to a non-cognizable offence in which case such a report is to be treated as a “complaint” of the
police officer concerned, but the explanation will not be able to the prosecution where in a case the
police initiates investigation into a cognizable offence, but ultimately finds that only a non-cognizable
offence has been made out.156 Investigation of non-cognizable offence under section 211 Penal Code
without an order of Magistrate under section 155(2) and the report of the police officer is a complaint

(d) “complaint”
under section 190(1)(a) in view of this Explanation.157
Although the offence of drunken driving under section 195 of the Motor Vehicles Act, 1988 is not
cognizable, documents submitted by police to Magistrate alleging commission of an offence under the
Act would be deemed to be complaints as defined in section 2(d) of the Code and the Magistrate
would be bound to take cognizance of the alleged offence on the basis of it.158
71 See Law Commission’s 37th Report, para 75, Appendix III, Law Commission’s 41st Report pp 9 & 10, para 1.26.
72 Ganesh Narayan Sathe, Re, (1889) ILR 13 Bom 600; Farzand Ali v Hanuman Prasad, (1896) 18 All 465 ; Miyabhai Pirbhai,
(1963) 2 Cr LJ 141 : 4 Guj LR 253.
73 UOI v Madan Dey, 1991 Cr LJ 347 , 352 (Cal-DB) : 1991 (34) ECC 48.
74 Francis Savio v State of Kerala, 1998 Cr LJ 4735 (Ker) : 1999 (1) Andh LD (Cri) 180.
75 Lajpat Rai v State, 1983 Cr LJ 888 (Del) : (1983) 23 DLT 324 ; Shailendra Pradhan v Vipparla Jyoti, 2006 Cr LJ 1483 (1484) :
2005 (2) Orissa LR 505 (Ori); Gujral v Emperor, AIR 1935 All 938 ; Emperor v Ismail, AIR 1930 Bom 49 ; Mehar v Emperor,
AIR 1930 Lah 884 ; Dedav Bux v Shyamapada, AIR 1914 Cal 810 .
76 Hammirmal v Vinayak Rao, AIR 1931 Ngp 98 ; Sukumar Chatterjee v Mofizuddin, AIR 1921 Cal 561 .
77 Vishwa Milter v OP Poddar, (1983) 4 SCC 701 : AIR 1984 SC 5 : 1984 Cr LJ 1 (4) : (1983) 2 Crimes 843 : (1983) 4 SCC 701 .
78 Suraj Lal Jaiswal v State of UP, 2006 Cr LJ 3323 (3324) : 2006 (55) All Cri C 513 (All).
79 Misrilal Mangilal Maternity & Child Welfare Centre, Construction Committee, Hyderabad v K Rajmallu, 1978 Cr LJ 1360 (AP).
80 Arun Sahu v Haridas Arora, 1984 Cr LJ 1028 (Cal-DB).
81 State of MP v Karambir Singh, 1986 (3) Crimes 37 (MP).
82 Badri Prasad v State, AIR 1986 Pat 186 , 191 : 1986 (34) BLJR 244 .
83 Jabeen Sultana v State of AP, 2004 Cr LJ 3491 (3493, 3494) (AP) : 2004 (1) Andh LD (Cri) 551.

(d) “complaint”
84 Churiaram Agarwal v Agarwal Sweet Corner, 1990 Cr LJ 2460 (Del) : 42 (1990) DLT 633 .
85 P Raveendran Thampi v Sadasivan, 1981 Cr LJ 181 (Ker).
86 State v Ismail Sher Gojri, 1979 Cr LJ 557 (J&K).
87 See Bharat Kishore Lal Singh Deo v Judhistir Modak, (1929) 9 Pat 707 : AIR 1929 Pat 473 ; Lakhan, (1937) All 162 ; Veerappa v
Bhimareddappa, (2001) 5 Kant LJ 391 : (2002) 1 Kant 1665 : 2002 AIR Kant HCR 1147 : 2002 Cr LJ 2150 (2152, 2153) (Kant);
RP Balkrishna v Mulhoot Leasing & Finance Ltd, (2002) 3 BC 655 : 2002 AIR Kant HCR 2688 : (2002) 112 Comp Cas 191 : 2002
Cr LJ 4444 (4446) (Kant); Roy Joseph v Sk. Tamisuddin, 2008 (3) Mah LJ 705 (709) (Bom).
88 Halimuddin Ahmad v Ashoka Cement Ltd, 1976 Cr LJ 449 (Pat); RP Balkrishna v Mulhoot Leasing & Finance Ltd, (2002) 3 BC
655 : 2002 AIR Kant HCR 2688 : (2002) 112 Comp Cas 191 : 2002 Cr LJ 4444 (4446) (Kant).
89 Ramkripal Prasad v State, 1986 Pat 254, 265 : 1985 Cr LJ 1048 .
90 RP Balkrishna v Mulhoot Leasing & Finance Ltd, 2002 AIR Kant HCR 2688 : (2002) 3 BC 655 : (2002) 112 Com Cas 191 : 2002
Cr LJ 4444 (4446) (Kant).
91 Ram Babu Gupta v State of UP, 2001 Cr LJ 3363 (3369)(All-FB).
92 Ganesha v Sharanappa, AIR 2014 SC 1198 : (2014) 1 SCC 87 : 2014 Cr LJ 1146 (SC).
93 James Sebastian v State of Assam, 2008 Cr LJ 3634 (3647) (Gauh).
94 Salim v State of UP, 2006 (55) ACC 120 (All).
95 Bhimappa v Laxman, AIR 1970 SC 1153 : (1970) 1 SCC 665 : 1970 Cr LJ 1132 ; Roy Joseph v Sk Tamisuddin, 2008 (3) Mah LJ
705 (709) (Bom).
96 Bhimappa v Laxman, AIR 1970 SC 1153 (1156) : 1970 Cr LJ 1132 ; State v BR Bhatia, 1980 All LJ 323 (326) (All); Shyam Lal v
State, AIR 1958 All 76 ; Francis Savio v State of Kerala, 1998 Cr LJ 4735 (Ker).
97 Nayan v State, AIR 1954 Ass 54 : (1953) 5 ASS 128; Saroj v King Emperor, 48 Cr LJ 747 (Cal).
98 Firm Govind Moti & Co v SR Corp, AIR 1954 Kutch 33 : 1954 Cr LJ 1086 .
99 Sukumar Chatterjee v Mufizuddin Ahmed, AIR (1921) Cal 561 : (1921) 22 Cr LJ 455 (Cal).
100 Chhedi v State of UP, 1991 Cr LJ 3017 (All).

(d) “complaint”
101 Subodh v Jamsher, AIR 1949 Cal 55 ; Hidayatullah v Emperor, AIR 1936 Pesh 66 ; Har Narayan v Nawab, AIR 1958 Pat 10 :
1958 Cr LJ 10 .
102 Durga Dutt v Emperor, AIR 1951 Cal 2 : 54 Cal WN 916; Banti v Emperor, AIR 1930 Pat 550 : ILR 36 All 222 (All).
103 Jitendra Chandrakant Mehta v Shamrock Impex Pvt Ltd, 2006 Cr LJ 3131 (3134) (DB) : 2006 (3) Bom LR 2211 (Bom).
104 Mahmud Ali v State, AIR 1986 Pat 133 , 141 : 1986 (34) BLJR 154 .
105 Dhrangadhra Chemical Works v State of Gujarat, 1985 (1) Crimes 837 , 839 (Guj); Francis Savio v State of Kerala, 1998 Cr LJ
4735 (Ker).
106 Bhimappa v Laxman, AIR 1970 SC 1153 : (1970) 1 SCC 665 : 1970 Cr LJ 1132 .
107 Mohd. Yousuf v Smt. Afaq Jahan, 2006 Cr LJ 788 (792) (DB) : AIR 2006 SC 705 : 2006 (1) Crimes 81 : (2006) SCC (Cri) 460 :
2006 (38) AIC 70 ; Narayan Mehta v State of Bihar, 2007 (1) Pat LJR 3 (Pat).
108 Pakirappa v Basavanagouda, 1992 Cr LJ 3969 (Kant).
109 Ram Brichha Misra v Emperor, (1947) All 796 ; Belsand Sugar Co, (1965) 2 Cr LJ 398 .
110 Surajmani Srimali v State of Orissa, 1980 Cr LJ 363 (Ori).
111 Chabilal Gurung v Krishna, 1984 Cr LJ 1433 (Sik); Ramnaumi Prasad, 1977 Cr LJ NOC 27 .
112 Veerappa v Bhimareddappa, 2002 AIR Kant HCR 1147 : (2002) 1 Kant 1665 : (2001) 5 Kant LJ 391 : 2002 Cr LJ 2150 (2153)
(Kant).
113 Sumer Singh, 1977 Cr LJ NOC 32 (Punj); Halimuddin Ahmad, 1976 Cr LJ 449 (Pat).
114 Rajesh Bajaj v State NCT of Delhi, 1999 SCC (Cri) 401 (404) : AIR 1999 SC 1216 : 1999 AIR SCW 881 : 1999 Cr LJ 1833 .
115 Sudalaimadam v State, 1984 LW (Crl) 280 (Mad).
116 Dadhiram Sharma v Tikaram Bhandari, 1979 Cr LJ 1188 (Sik).
117 Ushaben v Kishorbhai Chunilal Talpada, 2012 Cr LJ 2234 : (2012) 6 SCC 353 : (2012) 3 SCC (Cri) 142 .
118 Ushaben v Kishorbhai Chunilal Talpada, 2012 Cr LJ 2234 ,, at p2236, 2237, paras 9, 12 and 13 Cr LJ.

(d) “complaint”
119 Sushanta Sarkar v State of Nagaland, 2012 Cr LJ 4467 (Gau) [Iqbal Singh Marwah v Meenakshi Marwah, AIR 2005 SC 2119 :
(2005) 4 SCC 370 —Rel. on].
120 District Manager, FCI v Jayashankar Mund, 1989 (3) Crimes 95 , 99 : 1989 Cr LJ 1578 (Ori); Kallu v Shahid Ali, 1995 Cr LJ 3489
(All); Veerappa v Bhimaraddappa, 2002 AIR Kant HCR 1147 : (2002) 1 Kant 1665 : (2001) 5 Kant LJ 391 : 2002 Cr LJ 2150
(2153) (Kant).
121 Qasim v State, 1984 Cr LJ 1677 (All); Mahendra Pal Sharma v State of UP, 2003 Cr LJ 6698 (701) : 2002 All LJ 2899 : (2003) 1
Crimes 208 (All); Salim v State of UP, 2006 Cr LJ 1801 (1802) : 2006 (55) All Cri C 120 (All) (A protest petition is not complaint
as the procedure for complaint and FIR is different).
122 Ramalkhan Mahto v Rameshwar Mahto, 1975 Cr LJ 866 (Pat); Veerappa v Bhimaraddappa, 2002 AIR Kant HCR 1147 : (2002) 1
Kant 1665 : (2001) 5 Kant LJ 391 : 2002 Cr LJ 2150 (2153) (Kant).
123 Radhanath Pal v Tarapada Ghosh, 1991 (2) Crimes 615 , 617 (Cal).
124 PC Joshi v State of UP, AIR 1961 SC 387 : 1961 Cr LJ 566 .
125 CS Pavithran v Sub-Inspector of Police, 1989 (3) Crimes 587 (Ker).
126 Nanjanna v State of Karnataka, 1987 Cr LJ 1386 (Kant).
127 Narain Singh v State, 1986 (1) Crimes 535 , 540 (Del).
129 SP Sampathy v Smt Manjul Gupta, (2002) 3 BC 77 : (2002) 111 Comp Cas 492 : 2002 Cr LJ 2621 (2622, 2623) (AP-DB). See also
Y Sreelatha v Mukanchand Bothra, 2003 Cr LJ 1938 (1945) : (2002) 1 Mad LW (Cri) 2718 : (2002) 2 Rec Cri R 253 (Mad); Roy
Joseph Creado v Sk. Tamisuddin, 2008 Cr LJ 1509 (1515) (Bom).
130 Roy Joseph Creado v Sk. Tamisuddin, 2008 Cr LJ 1509 (1515) (Bom).
131 Yogendra Pratap Singh v Savitri Pandey, AIR 2015 SC 157 [Three-Judge Bench] : (2014) 10 SCC 713 .
132 Yogendra Pratap Singh v Savitri Pandey, AIR 2015 SC 157 , para 37 at p 168-169 [Three-Judge Bench] : (2014) 10 SCC 713 .
133 Gold Control Act, 1968 (45 of 1968) has been repealed by Act 18 of 1990.
134 UOI v Madan Dey, 1991 Cr LJ 347 , 353 (Cal-DB).
135 UOI v Madan Dey, 1991 Cr LJ 347 , 354 (Cal-DB).

(d) “complaint”
136 Ram Babu Gupta v State of UP, 2001 Cr LJ 3363 (3369) (All-FB); H.C. v Prafulla, AIR 1967 Bom 126 ; Jugeshwar v Emperor,
AIR 1936 Pat 346 ; Sevantilal v State, AIR 1969 Guj 14 ; Emperor v Vilhu, AIR 1938 Ngp 133 ; Jugat v Queen-Empress, ILR 26
Cal 786; Emperor v Sharma, (1912) 13 Cr LJ 588 (All).
137 Mehrab v Crown, AIR 1924 Sindh 71 (FB); Fateh Mohd. v Emperor, AIR 1940 Sind 97 ; Dedar v Shyamapada, AIR 1914 Cal 801
.
138 Khedu Mohton v State of Bihar, AIR 1971 SC 66 : (1970) 2 SCC 450 : 1971 Cr LJ 20 .
139 Jagia Devi v Sant Lal, 1977 Cr LJ 523 (Pat-DB).
140 Tshering Wangchuk Bhutia v Naksingh Bhutia, 1983 Cr LJ 1904 (Sik); Re, Manicka, AIR 1968 Mad 225 ; Jaisri v State, AIR 1951
All 494 ; Shamsuddin v Ram Dayal, AIR 1924 Lah 630 .
141 Raj Kumar Gupta v State of Bihar, 1988 (3) Crimes 561 (Pat).
142 Surajmani v State of Orissa, 1980 Cr LJ 363 (Ori) : 48 (1979) CLT 625 .
143 Madhavi v Thupran, 1987 (3) Crimes 183 , 185 (Ker) : 1987 (1) Ker LT 488 : 1987 KLJ 737 .
144 Jaswant v Kasuba, AIR 1955 Bom 108 : AIR 1950 Nag 45 ; Bibi Zainab v Anwar, AIR 1946 Pat 104 .
145 Mohanan v Sub Inspector of Police, Koipuram Police Station, 2008 Cr LJ 1709 (1712) (Ker) : 2008 (1) KLJ 445 .
146 Inder Sain v State, 1981 Cr LJ 1116 (Del).
147 State v Satnarain Bhuvania, AIR 1960 Pat 514 : 1960 Cr LJ 1483 (Pat); State v SD Gupta, 1973 Cr LJ 999 (All).
148 Paokhohen v Tongkohen, AIR 1969 Mani 56 ; Guniraj v State, AIR 1965 All 131 ; Ujal Khan v Purna Chandra, (1939) 43 Cal WN
527 : 1976 Raj Cr PC 29; Shital v Baboo, AIR 1967 All 150 ; Karim v Nangaon, AIR 1942 Oudh 407 .
149 Narayan v Egappa, AIR 1962 Mad 443 : 1963 Ker LT 548 ; Sashadhar v Sir Charles, AIR 1931 Cal 646 ; Zac Poonen v Hidden
Treasure Literature Incorporated in Canada, 2002 Cr LJ 481 (492) (Kant); Thethavusamy v Radhakrishnan, 2007 (2) Crimes 166
(Mad).
150 GK Mazumdar v Mohd Kasim, AIR 1967 Guj 15 : 1967 Cr LJ 60 .
151 Gopal v State, AIR 1955 All 511 : 1955 Cr LJ 1232 .
152 India Kumar Patodia v Reliance Industries Ltd, AIR 2013 SC 426 : (2012) 13 SCC 1 : 2013 Cr LJ 1179 (SC).

(d) “complaint”
153 India Kumar Patodia v Reliance Industries Ltd, AIR 2013 SC 426 para 13 at p 431-432 : (2012) 13 SCC 1 : 2013 Cr LJ 1179
(SC).
154 Section 19(xviii) of Court Fees Act, Sheo Pratap v Emperor, AIR 1930 820.
155 A Vinayagam v Subhash Chandran, 2000 Cr LJ 1579 (Mad-DB) : 2000 (2) Andh LD (Cri) 150.
156 Keshav Lal Thakur v State of Bihar, (1996) 11 SCC 557 : 1997 SCC (Cri) 298 (299).
157 Bajji v State of MP, 1981 Cr LJ 1558 (MP).
158 Sandeep Indravdan Sagar v State of Maharashtra, 2013 Cr LJ 1147 (Bom) : 2013 (1) Bom CR (Cri) 487 .
End of Document

(e) “High Court”
means,—
(i) in relation to any State, the High Court for that State;
(ii) in relation to a Union Territory to which the jurisdiction of the High Court for a State
has been extended by law, that High Court;
(iii) in relation to any other Union territory, the highest Court of criminal appeal for that
territory other than the Supreme Court of India;
The whole of India, that is, the territories to which the Code extends (see clause (f)), is divided into
States and Union Territories. (1) For each State the High Court of that State; (2) for Union Territory to
which the jurisdiction of the High Court of a State has been extended, that High Court; and (3) for
other Union Territories the highest Court of criminal appeal for that territory (but not the Supreme
Court) are High Courts within the meaning of this clause.
Definition of High Court takes in a Judicial Commissioner’s Court in an Union Territory.159 Where the
entire cause of action arose within the jurisdiction of Gauhati High Court, the mere fact that the
accused was interrogated by the Police as part of investigation in the jurisdiction of the Bombay High
Court would not clothe the Bombay High Court with jurisdiction to entertain writ petition with regard
to that offence.160
159 Joseph Peter v State of Goa, AIR 1977 SC 1812 : (1977) 3 SCC 280 : 1977 Cr LJ 1449 .
160 Navinchandra N Majithia v State of Maharashtra, 1999 Cr LJ 3476 (Bom-DB).
Mmaneesh Bajpai
End of Document

(f) “India”
(f) “India”
“India” means the territories to which this Code extends;
End of Document
Mmaneesh Bajpai
(g) “inquiry”
(g) “inquiry”
“inquiry” means every inquiry, other than a trial, conducted under this Code by a Magistrate
or Court;
[s 2.33] “Inquiry” used in wider sense.—
This interpretation clause does not actually define the word “Inquiry” but embraces within the
meaning of the term every inquiry excluding the trial, which too has not been defined in the Code.
Generally speaking trial would mean determination of guilt or otherwise relating to an offence but
inquiry would include application of mind for determination of any issue arising in a particular case.
Thus, the term “inquiry” has been used in a wider sense and within its ken it will include such
proceedings which do not require an adjudication upon a guilt or determination of an offence. It would
also include proceedings which precede the stage of trial.161 Inquiry in clause 2(g) refers to pre-trial
inquiry.162
The expression “enquiry” thus is of wide import and takes in every proceeding other than a trial. The
proceedings pending before the Magistrate from the time when a police report is filed before him or
the matter is brought before him otherwise than by a police report, till the Magistrate passes the order
committing the case to the court of Session, would constitute an “enquiry” before him within the
meaning of section 309 and this clause163 and his custody during the period would be legal and
valid.164 The term “inquiry” only refers to a judicial inquiry into the matter by a Magistrate or other
court.165 “Inquiry” by Magistrate under section 202, Code of Criminal Procedure, 1973 is inquiry
within this clause.166
The proceedings for bail under section 167(2) or for remand are judicial and Magistrate acts in judicial
capacity. It is part of enquiry and is covered by section 2(g).167 Proceeding under section 209 falls
within the term inquiry.168
Mmaneesh Bajpai
(g) “inquiry”
The word inquiry under section 3 of the Juvenile Justice Act, 1986 would mean an enquiry under the
Act and not under this Code.169
From the definition of the word “inquiry” given in the Code it is clear that inquiry under the Code is
relatable to a judicial act and not the steps taken by police which are either investigation after the stage
of section 154 of the Code or termed as “Preliminary Inquiry” and which are prior to the registration
of FIR.170
The stage of inquiry commences, insofar as the court is concerned, with filing of charge sheet. Trial is
distinct from an inquiry and must necessarily succeed it. Section 2(g) which defines inquiry, clearly
envisage inquiry before the actual commencement of the trial and is an act under the Code by the
Magistrate or the Court. The word “inquiry” is, therefore, not any inquiry relating to the investigation
of the case by the investigating agency but is an inquiry after the case is brought to the notice of the
court on filing of charge-sheet.171
[s 2.34] Committal proceedings.—
Committal proceedings under section 209 are an “inquiry”.172 Inquiry preparatory to commitment
under section 209 is an inquiry as defined in this provision.173 The proceedings before the Committing
Court are an “inquiry” which begins not at a point of time when cognizance is taken, but with filing of
the charge-sheet and continues till the case has been committed.174 From the time the accused appears
or is produced before the Magistrate with the police report and the Magistrate proceeds to enquire
whether section 207 has been complied with and then proceeds to commit the accused to the court of
Session, the proceeding before the Magistrate would be an inquiry as contemplated by this section.175
[s 2.35] Commencement of inquiry.—
An inquiry commences on submission of charge-sheet by police.176
[s 2.36] Inquiry by Deputy Superintendent of Police.—
The inquiry conducted by a Deputy Superin-tendent of Police on a petition alleging demand of dowry
would not fall within the scope and ambit of the expression “inquiry”.177
[s 2.37] “Inquiry” and “investigation”.—
An enquiry and investigation are not synonymous but different.178
[s 2.38] Order directing appearance of accused.—
Where the Magistrate does not dismiss a complaint under section 203 and the process is issued and the
accused is called upon to appear in the case the provisions of section 244 are attracted. Such a stage is
one of inquiry.179

(g) “inquiry”
In the inquiry envisaged under section 202 of the Code, the witnesses are examined whereas under
section 200 of the Code, examination of the complainant only is necessary. This exercise by the
Magistrate, for the purpose of deciding whether or not there is sufficient ground for proceeding against
the accused is nothing but an inquiry. Thus, where the Magistrate has examined the complainant on
solemn affirmation and two witnesses and only thereafter he had directed for issuance of process, it
could be said that the Magistrate has held inquiry as mandated under section 202 of the Code.180
[s 2.39] Mechanical adjournment is not enquiry.—
Mere mechanical adjournment of a case after a charge-sheet is filed is neither an enquiry nor taking
cognizance of the case within the meaning of section 309, sub-section (2) or within the meaning of
section 2(g).181
[s 2.40] Trial.—
The theory of discharge is beyond the scope of a trial and such a proceeding comes into being before
the beginning of a trial.182
“Trial” in a warrant case commences only when the charge is read to the accused and he is called upon
to answer the charge and until the proceedings have reached this stage proviso to clause (1) of section
326 does not come into play and the accused has no right to ask the court to resummon the
witnesses.183
161 Arun Dube v State MP, 1991 Cr LJ 840 , 843 (MP).
162 Devinder Mohan Zakhim v Amritsar Improvement Trust, (2002) 3 Rec Cri R 328 : 2002 Cr LJ 4485 (486) (P&H).
163 Chapalamedugu Bollayya v State of AP, 1978 Cr LJ 1347 , 1350 (AP-DB); Gulam Mohd. Kabir Mohd Mir v State of Maharashtra,
2008 Cr LJ 2426 (2443) : 2008 (1) Bom CR (Cri) 704 (Bom). (It is a judicial inquiry).
164 Gulam Mohd. Kabir Mohd Mir v State of Maharashtra, 2008 Cr LJ 2426 (2443) : 2008 (1) Bom CR (Cri) 704 (Bom).
165 RP Kapoor v Pratap Singh Kairon, AIR 1966 All 66 (DB) : 1966 Cr LJ 115 , 117.
166 Birendra Singh v State of Jharkhand, 2004 Cr LJ 1913 (1915, 1916) (Jhar) : 2004 (1) BLJR 241 .
167 CP Nagina v Om Prakash Agrawal, 1994 Cr LJ 2160 (Bom).

(g) “inquiry”
168 Swaroop Singh v State of Rajasthan, 1976 Cr LJ 1655 (Raj-DB).
169 Sheo Mangal Singh v State of UP, 1990 Cr LJ 1698 (All).
170 Lalita Kumari v Government of UP, AIR 2014 SC 187 : (2014) 2 SCC 1 : 2014 Cr LJ 470 (SC) [Five-Judge Constitution Bench].
171 Hardeep Singh v State of Punjab, AIR 2014 SC 1400 : (2014) 3 SCC 92 : 2014 Cr LJ 1118 (SC) [Five-Judge Constitution Bench].
172 State of Assam v Hit Ram Deka, 1990 Cr LJ 6 (Gau).
173 Chauthmal v State of Rajasthan, 1982 Cr LJ 1403 (Raj) : 1982 WLN 396 .
174 Arun Dube v State of MP, 1991 Cr LJ 840 , 843 (MP).
175 State of UP v Lakshmi Brahman, AIR 1983 SC 439 : 1983 Cr LJ 839 .
176 Rabindra Rai v State of Bihar, 1984 Cr LJ 1412 (Pat-FB).
177 TK Narayanaswamy v State of Karnataka, 1991 Cr LJ 2115 , 2119 (Kant) : ILR 1991 KAR 1839 .
178 Tung Nath Ojha v Haji Nasiruddin Khan, 1989 Cr LJ 1846 (Pat).
179 Dhiria v Jainarain, AIR 1970 Raj 102 : 1970 Cr LJ 729 .
180 Vijay Dhanuka v Najima Mamtaj, 2014 Cr LJ 2295 (SC) : (2014) 14 SCC 638 .
181 Khimbhadhur Palshiram Thapa v State of Maharashtra, 1989 (3) Crimes 543 , 545 (Bom).
182 State v Ghani Bandar, AIR 1960 J&K 71 : 1960 Cr LJ 584 (FB).
183 State v Ghani Bandar, AIR 1960 J&K 71 : 1960 Cr LJ 584 , 589 (FB).
End of Document

(h) “investigation”
“investigation” includes all the proceedings under this Code for the collection of evidence
conducted by a police officer or by any person (other than a Magistrate) who is authorised by a
Magistrate in this behalf;
[s 2.41] Scope of section 2(h).—
In criminal matters the inquiry is something different from a trial. Inquiry stops when trial begins.
Inquiry is wider than trial. Trial presupposes the idea of an offence but inquiry relates to offences and
matters which are not offences vide security proceedings and other proceedings and other inquiries
relating to dispute about possession of immovable property, etc. All those proceedings before a
Magistrate prior to the framing of a charge which do not result in conviction can be termed as
inquiry.184 Inquiry falls in the domain of the Court, while investigation comes under the domain of
investigating agency.185 An inquiry preparatory to commitment of a case to the Sessions under section
209 is inquiry within the meaning of section 2(g).186 Similarly, the proceedings under section 209 fall
within the term inquiry.187 The three terms “investigation”, “inquiry” and “trial” denote three different
stages of a criminal case. The first stage is reached when a police officer, either by himself or under
orders of a Magistrate, investigates into a case (section 202). If he finds that no offence has been
committed he reports the fact to a Magistrate who drops the proceedings and the case comes to an end
(section 203). But if he is of a contrary opinion, he sends up the case to a Magistrate. Then begins the
second stage, which is either a trial or an inquiry. The Magistrate may deal with the case himself, and
either convict the accused, or discharge or acquit him. In cases of serious offences the trial is before
the Sessions Court which may either discharge the accused or convict or acquit him (chapter XVIII).
The main purpose of an investigation is collection of evidence and it must be conducted by a police
officer or a person enjoying the powers of a police officer or authorised by a Magistrate in his behalf
or a person in authority.188
[s 2.42] Investigation.—
The Madras High Court has considered the term investigation in extenso.189 The Supreme Court,190
while construing the term “investigation”, has observed that under the Code investigation consists
generally of the following steps, viz. (1) proceeding to the spot, (2) ascertaining all the facts and
circumstances of the case, (3) discovery and arrest of the suspected offender, (4) collection of
evidence relating to the commission of the offence which may consist of (a) the examination of
Mmaneesh Bajpai
various persons (including, the accused) and the reduction of their statements into writing, if the
officer thinks fit, (b) the search of places or seizure of things considered necessary for the
investigation and to be produced at the trial, and (5) formation of the opinion as to whether on the
materials collected, there is a case to place the accused before a Magistrate for trial and if so, taking
the necessary steps for the same by filing a charge-sheet under section 173.191
Information treated as FIR and steps taken by the police pursuant to such information would amount
to investigation.192 The word “investigation” cannot be limited only to police investigation, but
includes the investigation carried on by any agency whether he be the police officer or empowered or
authorised officer or a person not being a police officer, under the direction of a Magistrate to make an
investigation vested with the power of investigation.193 The definition of the term is not exhaustive.
The arrest and detention of a person for the purpose of investigation of a crime forms an integral part
of the process of investigation.194 Examining witnesses and arranging raids for the purpose of dealing
with a complaint by an Inspector of Anti-Corruption Department was included within the meaning of
the word “investigation”.195 Medical examination of the arrested person also forms part of the
investigation.196 The word “investigation” has to be read and understood in the light of not only the
powers conferred on police officers but the restrictions placed on them in the use and exercise of such
powers.197 The collection of samples and the analysis by the public analyst do not amount to
investigation.198
It has been held by the Supreme Court that police actions during investigation affecting bodily
integrity or personal dignity of the accused must have legal sanction. Thus, the investigating officer
cannot take physical samples, including voice samples from the accused without authorization from
Magistrate. Proceedings under the Code for the collection of evidence are included in “investigation”
and collection of voice sample of the accused is a step in investigation.199
It has been held that all proceedings permissible under the Code of Criminal Procedure, 1973 for
collection of evidence is investigation.200
Though ordinarily investigation is undertaken on information received by a police officer, the receipt
of information is not a condition precedent for investigation. Section 157 prescribes the procedure in
the matter of such an investigation which can be initiated either on information or otherwise. It is clear
from the said provisions that an officer-in-charge of a police station can start investigation either on
information or otherwise.201 Where a police officer received a detailed information of the offences
alleged to have been committed by the accused with necessary particulars, proceeded to the spot of the
offence, ascertained the relevant facts by going through the railway records and submitted a report of
the said acts, the said acts constituted an investigation within the meaning of the definition of
“investigation”.202

It cannot be said that in view of the mandatory provisions of section 5-A of the Prevention of
Corruption Act insisting on the investigation of the case by an officer not below the rank of a Deputy
Superintendent of Police, any enquiry that is made by a Circle Inspector of Police does not have the
legal effect of an investigation.203 Enquiry by Customs Officers is not the same as investigation into
criminal offence by an officer-in-charge of a police station.204 The provisions of the Code will not
apply to investigation by prescribed authority under the Foreign Exchange Regulation Act, 1973.205
Order No. 145 of the Madras Police Standing Orders prescribes the procedure in respect of charges of
torture or of death or grievous hurt against a police officer. Non-compliance with the provisions of this
order, does not make the investigation of the case illegal, unless it was shown that miscarriage of
justice had been caused on account of the illegal investigation.206
The enquiry into the incident conducted by a Police Officer for submitting a report to the Human
Rights Commission does not amount to an investigation as contemplated under section 2(h) Code of
Civil Procedure, 1908.207
See also commentary under section 377.
[s 2.43] Judiciary cannot interfere.—
The power of the police to investigate into a cognizable offence is ordinarily not to be interfered with
by the Judiciary.208
It has been held by the Supreme Court that the investigation is neither inquiry nor trial. It is within the
exclusive domain of the police to investigate and is independent of any control by the Magistrate. The
sphere of activity is clear cut and well defined. In the above case, the accused had filed an application
for quashing the criminal case filed against him, but a day before the matter came up for hearing
before High Court, he was arrested and produced before the Magistrate, who remanded him to
custody. A habeas corpus petition was filed in the High Court challenging his remand as illegal on the
ground that the day the remand order was passed, the High Court had stayed further investigation in
the quashing matter. In was held in the habeas corpus petition that the detention by virtue of the
judicial order passed by the Magistrate remanding the accused to custody was valid in law.209
[s 2.44] State can direct further investigation.—
The State Government which has power of superintendence over the entire police force of the State is
entitled to direct further investigation.210
[s 2.45] Officer-in-charge of Police Station.—

The important attribute of police power is not only the power to investigate into the commission of
cognizable offence but also the power to prosecute the offender by filing a report or a charge-sheet
under section 173. Unless an officer is invested under any Special Law with the powers of
investigation under the Code, including the power to submit a report under section 173, he cannot be
described to be a police officer. The officer, other than a police officer, invested (under section 53 of
the Narcotic Drugs and Psychotropic Substances Act, 1985, with the powers of an officer-in-charge of
a police station), is not entitled to exercise “all” the powers under chapter XII of the Code including
the power to submit a report or charge-sheet.211 The officer appointed under the Narcotic Drugs and
Psychotropic Substances Act cannot be considered to be the police officer and the investigation by the
said officer cannot be said to be investigation by the police.212
[s 2.46] Inquiry by Deputy Superintendent of Police.—
An inquiry conducted by a Deputy Superintendent of Police on the petition complaining demand of

dowry is in the nature of a preliminary inquiry and not an investigation.213
[s 2.47] Medical examination is an investigation.—
Medical examination under sections 53 and 54 is an investigation within the meaning of this
definition.214
[s 2.48] Magistrate’s permission for Investigation by subordinate officer.—
A Magistrate cannot surrender his discretion to a police officer but must exercise it having regard to
the relevant material made available to him at the stage of granting permission. He must also be
satisfied that there is, reason, owing to exigencies of the administrative convenience, to entrust a
subordinate officer with the investigation. It is desirable that the order giving the permission should
ordinarily, in the face of it, disclose the reasons for giving permission.215
[s 2.49] Illegality in investigation—Effect.—
An illegality committed in the course of an investigation does not affect the competence and
jurisdiction of the court for trial and where cognizance of the case has in fact been taken and the case
has proceeded to termination, the invalidity of the proceeding investigation does not vitiate the result
unless the miscarriage of justice has been caused thereby.216
The definition of the word “investigation” is inclusive. So, it does not mean that any investigation
which is beyond the provisions of the Code is not contemplated. There is no provision in the Code
which prohibits the police officer from recording statements of persons who are residing outside India.
Even otherwise it is settled law that any illegality committed in investigation does not vitiate the
evidence collected by the Investigating Officer. The statements recorded by the Investigating Officer
of persons resident outside India very much fall within the scope of the word “investigation”. The
definition of the word “investigation” in the Code is not exhaustive. In common parlance the word
“investigation” means collecting evidence for proving a particular fact. The Investigating Officer by
recording statements of witnesses who may be in India or outside India, is merely collecting evidence
for the purpose of investigation into allegations regarding commission of an offence.217 Illegal

investigation does not render the statements recorded therein by police officer illegal.218
The word “Magistrate” used in this section means Judicial Magistrate by virtue of section 3(1)(a).219
Section 484 does not imply that where investigation in any case was pending when the new Code
came into force, the provisions relating to investigation contained in chapter XII of the new Code
including section 167(2)(a) shall apply.220
184 Alim v Taufia, 1982 Cr LJ 1264 (All).
185 Sandeep v State of Maharashtra, 2009 (1) Mah LJ 97 (FB).
186 Chauthmal v State of Rajasthan, 1982 Cr LJ 1403 (Raj); Tuneshwar Prasad Singh, AIR 1978 Pat 225 : 1978 Cr LJ 1080 .
187 Swaroop Singh v The State of Rajasthan, 1976 Cr LJ 1655 (Raj).
188 UP v Sant Prakash, 1976 Cr LJ 274 , 283 (All-FB).
189 Assistant Collector of Central Excise, Preventive v V Krishnamurthy, 1983 Cr LJ 1880 : 1983 LW (Crl) 196.
190 HN Rishbud v State of Delhi, AIR 1955 SC 196 : 1955 Cr LJ 526 .
191 Asst Collector of Central Excise, Preventive v V Krishnamurthy, 1983 Cr LJ 1880 , 1886 (Mad); Sabita Praharaj v Gitarani
Prahraj, 2004 Cr LJ 3975 (3978) (Ori).
192 V Rughmini (Dr) v State of Kerala, 1987 Cr LJ 200 (Ker-FB).
193 Directorate of Enforcement v Deepak Mahajan, AIR 1994 SC 1775 : (1994) 3 SCC 440 : 1994 Cr LJ 2269 (2296) : 1994 AIR
SCW 1656.
194 Baldev Singh v State of Punjab, 1975 Cr LJ 1662 , 1665 (Punj-FB).
195 Maha Singh v State (Delhi Administration), 1976 Cr LJ 346 : AIR 1976 SC 449 , 456 : (1976) 1 SCC 644 .

196 Ananth Kumar Naik v The State of AP, 1977 Cr LJ 1797 , 1799 (AP).
197 Asstt. Collector of CEC Preventive v V Krishnamurthy, 1983 Cr LJ 1880 (Mad).
198 State of Rajasthan v Shambhoogiri, (2004) 8 SCC 169 (173) : (2004) 3 Ker LT 520 : (2004) 4 Crimes 183 (SC).
199 Ritesh Sinha v State of UP, AIR 2013 SC 1132 : (2013) 2 SCC 357 : 2013 Cr LJ 1301 (SC) [IN view of the difference of opinion
the case was referred to a three Judge Bench].
200 Allan John Waters v State of Maharashtra, 2012 Cr LJ 2996 (Bom) : 2012 Bom CR (Cri) 242 .
201 State of UP v Bhagwant Kishore Joshi, AIR 1964 SC 221 : 1964 (2) Cr LJ 140 , 142.
202 State of UP v Bhagwant Kishore Joshi, AIR 1964 SC 221 : 1964 (1) Cr LJ 140 , 142.
203 State of Kerala v Samuel, AIR 1961 Ker 99 : 1961 Cr LJ 505 (FB).
204 Collector of Customs Madras v Kotumal Bhirumal Pihlajani, AIR 1967 Mad 263 FB : 1967 Cr LJ 1007 (Mad-FB).
205 S Ramachandra Reddy v PN Ravindra Reddy, 1991 (2) Crimes 230 , 233 (AP).
206 State of AP v N Venugopal, AIR 1964 SC 33 : 1964 (1) Cr LJ 16 , 21.
207 Sabita Praharaj v Gitarani Prahraj, 2004 Cr LJ 3975 (3978) (Ori).
208 State of Bihar v JAC Saldanna, AIR 1980 SC 326 : (1980) 1 SCC 554 : 1980 Cr LJ 98 .
209 Manubhai Ratilal Patel Through Ushaben v State of Gujarat, AIR 2013 SC 313 : (2013) 1 SCC 314 : 2013 Cr LJ 160 (SC).
210 State of Bihar v JAC Saldanna, AIR 1980 SC 326 : (1980) 1 SCC 554 : 1980 Cr LJ 98 .
211 Raj Kumar Karwal v UOI, AIR 1991 SC 45 : (1990) 2 SCC 409 : 1991 Cr LJ 97 , 107, 108 (SC).
212 Mahesh v UOI, 1988 (1) Crimes 926 (All-DB).
214 Anath Kumar v State of AP, 1977 Cr LJ 1797 (AP).

215 Sailendranath Bose v State of Bihar, AIR 1968 SC 1292 : 1968 Cr LJ 1484 , 1487.
216 Sailendranath Bose v State of Bihar, AIR 1968 SC 1292 : 1968 Cr LJ 1484 , 1487.
217 Vinod Kumar Jain v State through CBI, 1991 Cr LJ 669 , 677 (Del) : 42 (1990) DLT 186 .
218 Bhanuprasad Hariprasad v State of Gujarat, AIR 1968 SC 1323 : 1968 Cr LJ 1505 .
219 Ramesh Chandra v State of Bihar, 1989 Cr LJ 476 (Pat); Sukhdeo Tiwari v State of Bihar, 1976 Cr LJ 1350 (Pat).
220 State (Delhi Administration) v Vipin Kumar Jaggi, 1975 Cr LJ 846 (Del).
End of Document

(i) “judicial proceeding”
“judicial proceeding” includes any proceeding in the course of which evidence is or may be
legally taken on oath;
[s 2.50] Scope of section 2(i).—
The term “judicial proceeding” includes “inquiry” and “trial” but not investigation. It is also explained
in section 193, and referred to in sections 192 and 228 of the Indian Penal Code.
[s 2.51] Taking of evidence.—
It is not necessary that the Judge or Magistrate concerned must be actually recording evidence in order
to amount to judicial proceeding. In fact, occasion to record evidence may not actually arise and still
the proceeding may amount to judicial proceeding. The test is whether in the course of those
proceedings evidence may be legally taken on oath or not.221
[s 2.52] Presentation of challan.—
When the challan was being presented before the Civil Judge, who was acting as Judicial Magistrate at
that time, the first step in the judicial proceeding was taking place and hence the Judge was sitting in
judicial proceeding.222
[s 2.53] Confiscation proceedings before certain authorities.—
The Authorized Officer under the Orissa Special Courts Act, 2007 discharged quasi judicial function
so far as confiscation of goods/properties is concerned. Confiscation proceedings before Authorized
Officer are not judicial proceedings and it is not a Court. Therefore, inherent powers under section 482
of the Code of Criminal Procedure, 1973 cannot be exercised in respect of any proceedings before
Authorized Officer.223
Mmaneesh Bajpai
221 Shrichand v State of MP, 1992 (1) Crimes 362 , 364 : 1993 Cr LJ 495 (MP).
222 Shrichand v State of MP, 1992 (1) Crimes 362 , 364 : 1993 Cr LJ 495 (MP).
223 Bipin Bihari Panda v State of Orissa, 2012 Cr LJ 2160 (Orissa) : 2012 (1) ILR-CUT 542.
End of Document

(j) “local jurisdiction”
(j) “local jurisdiction”
“local jurisdiction”, in relation to a Court or Magistrate, means the local area within which the
Court or Magistrate may exercise all or any of its or his powers under this Code 224[and such
local area may comprise the whole of the State, or any part of the State, as the State
Government may, by notification, specify;]
The Legislature has enlarged the scope of local area as to cover not only any local area in a district but
to cover the whole of the State or any part of the State as the Government may by notification
specify.225
224 Inserted by the Code of Criminal Procedure (Amendment) Act, 1978 (45 of 1978). Section 2 (w.e.f. 18 December 1978).
225 Rajesh Kumar v State of UP, 1983 (1) Crimes 1152 , 1154 (All).
End of Document
Mmaneesh Bajpai
(k) “metropolitan area”
(k) “metropolitan area”
“metropolitan area” means the area declared, or deemed to be declared, under Section 8, to be
a metropolitan area;
This is a new definition. The previous presidency-towns, Bombay, Calcutta and Madras, and the city
of Ahmedabad are deemed to have been declared as metropolitan area, by the respective State
Governments. Section 8 empowers the State Governments to declare by notification, an area
comprising a city or town with a population exceeding one million, to be a metropolitan area.
End of Document
Mmaneesh Bajpai
(l) “non-cognizable offence”
“non-cognizable offence” means an offence for which, and “non-cognizable case” means a case
in which, a police officer has no authority to arrest without warrant;
There is nothing like partly cognizable and partly non-cognizable offence under the clause.226
An offence under the Indian Railways Property (Unlawful Possession) Act, 1966, is a non-cognizable
one.227 The offence under section 493 of the Indian Penal Code under the First Schedule to the Code,
is a non-cognizable offence.228
Sub-section (1) of section 9A of the Control Excise Act, 1944 states in completely unambiguous terms
that notwithstanding anything contained in the Code of Criminal Procedure, offences under section 9
shall be deemed to be non cognizable within the meaning of the Code.229
The Code defines a non-cognizable offence, in respect whereof a police officer has no authority to
arrest without warrant. The definition defines the general rule since even under the Code same
offence, though non-cognizable’ have been included in Pt I of the First Schedule to the Code as being
non-bailable. For example, sections 194, 195, 466, 467, 476, 477 and 505 deal with non-cognizable
offences which are yet non-bailable.230
226 Vadlamudi v State of AP, AIR 1961 AP 448 (453) : 1961 (2) Cr LJ 605 .
227 Supdt & Remembrancer of Legal Affairs v D Surya Rao, AIR 1969 Cal 594 : 1969 (2) Cr LJ 1480 .
228 TK Narayanaswamy v State of Karnataka, 1991 Cr LJ 2115 , 2121 (Kant).
Mmaneesh Bajpai
229 Om Prakash v UOI, AIR 2012 SC 545 : (2011) 14 SCC 1 : 2012 Cr LJ 779 (SC) [Three-Judge Bench].
230 Om Prakash v UOI, AIR 2012 SC 545 : (2011) 14 SCC 1 : 2012 Cr LJ 779 (SC) [Three- Judge Bench].
End of Document

(m) “notification”
(m) “notification”
“notification” means a notification published in the Official Gazette ;
End of Document
Mmaneesh Bajpai
(n) “offence”
(n) “offence”
(n) “offence” means any act or omission made punishable by any law for the time being in force
and includes any act in respect of which a complaint may be made under section 20 of the Cattle-
trespass Act, 1871 (1 of 1871);
The definition of “offence” under this section is wide enough to enable the police to investigate into
offences under other enactments also, apart from those under the Indian Penal Code, 1860.231 The
term “offence” is more elaborately defined in section 40 of the Indian Penal Code, 1860. There is also
a special definition of offence under section 39 of this Code. The words “law for the time being in
force” in clause (4) necessarily means that the law must be in force in the territories of India.232 A
single shot resulting in the death of two or more persons is one offence.233
In a case under the Negotiable Instruments Act, 1881, a three Judge Bench of the Supreme Court held
that it would be futile to contend that the offence under the Act comes into existence only on the grant
of permission for prosecution, or that that permission constitutes an integral part of the offence itself.
The facts constituting the cause of action do not constitute the ingredients of the offence under section
138. The proviso to section 138 simply postpones/defers institution of criminal proceedings and taking
of cognizance by the court till such time cause of action in terms of clause (e) of the proviso accrues to
the complainant. Once the cause of action accrues to the complainant, the jurisdiction of the court to
try the case will be determined by reference to the place where the cheque is dishonored.234
231 Dharma Reddy v State, 1991 Cr LJ 1476 , 1479 (AP) : 1991 (1) All LT 101.
232 Govind v State, AIR 1955 Ngp 236 : 56 Cr LJ 1275.
233 Bhagat Singh v State, AIR 1952 SC 45 : 1952 Cr LJ 323 .
Mmaneesh Bajpai
(n) “offence”
234 Dashrath Rupsingh Rathod v State of Maharashtra, AIR 2014 SC 3519 : (2014) 9 SCC 129 [Three Judge Bench].
End of Document

(o) “officer-in-charge of a police station”
“officer-in-charge of a police station” includes, when the officer-in-charge of the police station is
absent from the station-house or unable from illness or other cause to perform his duties, the
police officer present at the station-house who is next in rank to such officer and is above the
rank of constable or, when the State Government so directs, any other police officer so present;
[s 2.54] Meaning of officer-in-charge of Police Station.—
The officers of the Department of Revenue Intelligence who have been invested with the powers of an
officer-in-charge of a police station under section 53 of Narcotic Drugs and Psychotropic Substances
Act, 1985, have no powers of investigation under this Code. Therefore, other than a police officer,
they are not entitled to exercise “all” the powers under chapter XII of the Code, including the power to
submit a report or charge-sheet under section 173 of the Code.235
The important attribute of police power is not only the power to investigate into the commission of
cognizable offence but also the power to prosecute the offender by filing a report or a charge-sheet.
Unless an officer is invested under any Special Law with the powers of investigation under the Code,
including the power to submit a report, he cannot be described to be a police officer. The officer, other
than a police officer, invested under section 53 of the Narcotic Drugs and Psychotropic Substances
Act, 1985, with the powers of an officer-in-charge of a police station, is not entitled to exercise “all”
the powers under chapter XII of the Code including the power to submit a report or chargesheet.236 By
virtue of the definition of the expression “Officer-in-charge of a police station” under this section, if
the officer-in-charge of the police station was absent at the relevant time, the ASI would be deemed to
be the officer-in-charge of the police station and, therefore, he is entitled to perform all the functions
of an officer-in-charge of a police station.237
A head-constable in the police-out-post comes within the definition of a police officer-in-charge of

police station.238 Head Constables are competent to take photographs of the accused for the purpose of
identification of the accused.239
Mmaneesh Bajpai
[s 2.55] Offence under Essential Commodities Act.—
Section 10-A of the Essential Commodities Act provides that notwithstanding anything contained in
the Code, 1973, every offence punishable under the Act shall be cognizable which would imply that
an officer-in-charge of police station, on receipt of the information of such cognizable offence without
the order of a Magistrate, investigate into the offence according to the procedure prescribed in chapter
XII of the Code.240
235 Raj Kumar Karwal v UOI, AIR 1991 SC 45 : (1990) 2 SCC 409 .
236 Raj Kumar Karwal v UOI, AIR 1991 SC 45 : (1990) 2 SCC 409 : 1991 Cr LJ 97 , 107, 108 (SC).
237 Benudhar Routra v Maheshwar Sahu, 1991 Cr LJ 220 , 222 (Ori).
238 Francisco Paulo Saldanha v State, 1990 (3) Crimes 293 (Bom-DB).
239 State of TN v T Thulasigam, 1994 SCC (Cri) 1504 : 1994 Supp (2) SCC 405 : AIR 1995 SC 1314 : 1995 Cr LJ 2080 (2103, 2104).
240 HN Dharanendrappa v State of Karnataka, 1991 (3) Crimes 60 (Kant) All; Satyanarain Musadi v State of Bihar, AIR 1980 SC 506
: (1980) 3 SCC 152 : 1980 Cr LJ 227 .
End of Document

(p) “place”
(p) “place”
“place” includes a house, building, tent, vehicle and vessel;
[s 2.56] . Legislative changes in section 2(p).—
The word “Vehicle” in present clause is new, it did not appear in the corresponding clause 4(i) of Old
Code, 1898.
In Bhagwanbhai v State of Maharashtra,241 the Supreme Court had held that a vehicle is not a “place”
within the meaning of sections 102 and 103 (section 100) of the present Code. The Law Commission
noted this lacuna, and on the recommendations of the Law Commission made in the 37th and 41st
Reports, the word “vehicle” has been included in the definition.
241 Bhagwanbhai v State of Maharashtra, (1963) 2 Cr LJ 694 : (1963) 3 SCR 386 : 1963 Mah LJ 134 (SC).
End of Document
Mmaneesh Bajpai
(q) “pleader”
(q) “pleader”
“pleader”, when used with reference to any proceeding in any Court, means a person
authorised by or under any law for the time being in force, to practise in such Court, and
includes any other person appointed with the permission of the Court to act in such proceeding;
[s 2.57] Legislative changes in section 2(q).—
The words “mukhtar, advocate, vakil and the attorney of High Court so authorised” appearing in
corresponding section 4(r) of Old Code, 1898 have been deleted from the definition in the present
Code.
[s 2.58] Scope of section 2(q).—
Under the inclusive part of the definition a non-legal person appointed with the permission of the court
will also be included.242 However, such permission may be withdrawn half-way through the
proceedings if the representative proves himself to be reprehensible.243
The Assistant Public Prosecutor appointed by the Central Government for conducting cases arising out
of Railway Property (Unlawful Possession) Act, a member of the Railway Protection Force, and who
has suspended his private practice cannot appear as a defence counsel.244 An agent cannot become a
“pleader” for the party in criminal proceedings, unless the party secures permission from the court to
appoint him to act in such proceedings.245
An accused cannot be permitted to appear through power of attorney unless he has obtained
permission from the High Court for such appearance.246 A power of attorney holder of the heirs of the
deceased complainant cannot apply to continue the complaint on the death of the complainant, only
the heirs of the deceased complainant can seek permission to continue the proceedings.247
[s 2.59] Representation by private person.—
Mmaneesh Bajpai
(q) “pleader”
It is open to a person who is a party to a proceeding to be represented by a non-advocate in a particular

instance or case.248 See also commentary under section 24.
242 See Dorabshah Bomanji v Emperor, (1925) 28 Bom LR 102 .
243 Harishankar Rastogi v Girdhari Lal Sharma, 1978 Cr LJ 78 : AIR 1978 SC 1019 : (1978) 2 SCC 165 .
244 Loganathan v Raj Mohan, 1987 LW (Crl) 483 Mad.
245 TC Mathai v Distt & Sessions Judge, Thiruwanathapuram, AIR 1999 SC 1385 : (1999) 3 SCC 614 : 1999 AIR SCW 1062 : 1999
Cr LJ 2092 : 1999 SCC (Cri) 455 .
246 S Balasubramaniam v Dy Commissioner of Police, 2005 Cr LJ 385 (388) (Mad).
247 Jimmy Jahangir Madan v Bolly Cariyappa Hindley, (2004) 12 SCC 509 : (2004) 3 Ker LT 850 : 2005 Cr LJ 112 (116) (SC).
248 Harishankar Rastogi v Girdhari Sharma, AIR 1978 SC 1019 : 1978 Cr LJ 778 .
End of Document

(r) “police report”
(r) “police report”
“police report” means a report forwarded by a police officer to a Magistrate under sub-section
(2) of section 173;
No other type of police report except the one submitted by the investigating officer under section 173
has been contemplated under the Code for taking cognizance.249 A report, which a police officer may
submit on completion of “investigation”, which was directed under section 202, cannot be treated as
“police report” within the meaning of section 2(r).250
A report by a police officer in consequence of an unauthorised investigation into a non-cognizable

offence, would necessarily be a complaint.251
249 Shyama Charandubey v State of UP, (1978) 2 SCC 165 : 1990 Cr LJ 456 (All).
250 James Sebastian v State of Assam, 2008 Cr LJ 3634 (3647) (Gauh).
End of Document
Mmaneesh Bajpai
(s) “police station”
“police station” means any post or place declared generally or specially by the State
Government, to be a police station, and includes any local area specified by the State
Government in this behalf;
A beat house, unless it is declared generally or specially by the State Government to be a police
station, cannot be held to be a police station.252 Where the boundary between two police station areas
is declared or specified by the Government as the midstream of a river, and that river changes its
course, such change will automatically determine the increase or decrease in the territorial jurisdiction
under the police stations.253 Anti-vice Squad is not a police station unless it is so declared by the State
Government.254
“Police station” means besides any post or place also the local area which has been declared so by the
State Government.255 As the Central Government had already extended the powers and jurisdiction of
the members of the Delhi Special Police Establishment Act, 1946, to the entire State of Sikkim,
absence of notification by the State Government about the declaration of certain area to be the “Police
station” was found not necessary.256
CID/COD (Corpse of Detectives) are police station.257
Where the jurisdiction of the police station is notified for offences under Special Acts only, the
officer-in-charge of the police station is not competent to investigate offences under Indian Penal
Code, 1860 disclosed in FIR.258
252 Srimanta Manna v The State, AIR 1960 Cal 519 : 1960 Cr LJ 1078 .
253 Narayan Das v Bolta Ram, 1973 Cr LJ 818 (Pat-FB).
Mmaneesh Bajpai
254 State v Amaldoss, 1988 Mad LW (Crl) 197 , 206.
255 Nar Bahadur Bhandari v State, 2003 Cr LJ 2799 (2806) (Sikk-DB).
256 Nar Bahadur Bhandari v State, 2003 Cr LJ 2799 (2806) (Sikk-DB).
257 Narasimhaiah v State of Karnataka, 2003 AIR Kant HCR 40 : (2002) 3 Crimes 704 : (2002) 3 Kant 3157 : 2002 Cr LJ 4795 (4801)
(Kant).
258 SM Kalligudd v State of Karnataka, 1998 Cr LJ 1183 (1186) (Kant).
End of Document

(t) “prescribed”
(t) “prescribed”
“prescribed” means prescribed by rules made under this Code;
End of Document
Mmaneesh Bajpai
(u) “Public Prosecutor”
(u) “Public Prosecutor”
“Public Prosecutor” means any person appointed under section 24 and includes any person
acting under the directions of a Public Prosecutor;
A Public Prosecutor, though an executive officer, is, in a larger sense, also an officer of the Court. He
is bound to assist the court with his fairly considered view and the court is entitled to have the benefit
of the fair exercise of his function.259 Public prosecutor contemplated under section 2(u) would also
include special public prosecutor appointed under section 24(8),260 an Additional Public Prosecutor.261
Where the State Government by notification appoints the advocate General of the State as Public
Prosecutor and the advocate General appoints the Deputy Government advocate to appear and argue
all cases covered by the Code, the Deputy Government advocate would be Public Prosecutor under
section 2(u).262
259 Ram Naresh, AIR 1957 SC 389 , 393 : 1957 Cr LJ 567 : (1957) SCR 279 : (1957) SCJ 336 .
260 P V Antony v State of Kerala, 1989 Cr LJ 2482 (Ker).
261 Gidwar Aghan Oraon v State of Jharkhand, 2004 Cr LJ NOC 47 : 2003 (2) BLJR 1215 (Jhar).
262 State of Rajasthan v Manbhav, (1981) 2 SCC 525 (527) : 1981 SCC (Cri) rule 531.
End of Document
Mmaneesh Bajpai
(v) “sub-division”
(v) “sub-division”
“sub-division” means a sub-division of a district;
End of Document
Mmaneesh Bajpai
(w) “summons-case”
“summons-case” means a case relating to an offence, and not being a warrant-case;
[s 2.60] Scope of section 2(w).—
Treating the case as a warrant case, the Magistrate trying the case, will be competent to impose the
minimum punishment while the disadvantage of treating the case as a summons case would be that the
Magistrate trying the case as a summons case, would not be in a position to impose the maximum
punishment prescribed, if the gravity of the offence so demands. The determining factor for deciding
the character of a case as a warrant case or a summons case, would be the highest measure of
punishment prescribed for the offence disclosed.263
Merely because there is a difference between the procedures to be followed by the Sessions Judge and
the Magistrate in relation to the summons and warrant cases, it does not mean that the character of the
offence being a summons case or warrant case would change with reference to the procedure
prescribed by the Code for the trial of those cases. The procedure to be followed is one thing and the
nature of the offence ie, summons case or warrant case, is altogether a different thing.264
[s 2.61] Essential Commodities Act.—
If an offence under a particular Act or Order is punishable with imprisonment not exceeding two
years, it would be a summons case and if it is punishable with imprisonment exceeding two years it
would be a warrant case.265
263 UOI v Ram Narayan Sahu, 1985 (1) Crimes 997 , 999 (Cal).
264 Gadag Co-operative Textile Mills v State of Karnataka, 1988 (2) Crimes 972 , 975 (Kant) : ILR 1988 (Kant) 1489 .
Mmaneesh Bajpai
265 Gadag Co-operative Textile Mills Ltd v State of Karnataka, 1988 (2) Crimes 972 , 975 (Kant).
End of Document

[(wa) “victim”
266[(wa) “victim”
“victim” means a person who has suffered any loss or injury caused by reason of the act or
omission for which the accused person has been charged and the expression “victim” includes
his or her guardian or legal heir;]
[s 2.62] Legislative changes in section 2(wa)— CrPC Amendment Act, 2008 (5 of 2009).
New clause (wa) in section 2, has been added by section 2 of the Code of Criminal Procedure, 1973
(Amendment) Act, 2008 (Act No. 5 of 2009).267 The new clause introduces a definition of section 2 of
“Victim” to confer certain rights on the guardians and legal heirs of the victim. (Vide Notes on
Clauses.), eg right to file appeal against an adverse order (section 372), and to claim compensation
under new section 357-A. The scheme behind the insertion of this new definition of “victim” is also
apparent from the insertion of a proviso to section 24(8) of Code of Criminal Procedure, 1973 so as to
enable a victim, or those who are covered by this definition, to engage an advocate of his/their choice
to assist the prosecution. Since the entire criminal justice machinery is set into motion on the asking of
or due to the sufferings of the victim, the law-makers have deemed it fit to enable the victim to
actively participate in the judicial process.
[s 2.63] Right of legal heir.—
With the introduction of definition of victim in this new clause introduced w.e.f. 2009 a new
dimension has been added to the rights of victim. The apex court, in its various judgments, took note
of the fact that that accused, who had influence both financial and political backgrounds, often
succeeded in getting away after committing crime and the victim was often left without remedy of
filing appeal or challenging inadequate compensation. Now in the light of this definition and the
proviso inserted to section 372 of Code, right is given to the victim to file appeal in cases where the
accused is acquitted or is convicted of a lesser offence or where compensation is inadequate.
In a case of appeal against acquittal for the offence of murder, the appeal was filed by the brother of
the deceased claiming to be the legal heir within the definition given in section 2(wa) of the Code. It
was held by a Division Bench that the deceased is survived by his wife and as such brother is a class II
heir of the deceased and as such he is not entitled to file the appeal. Moreover the incident took place
Mmaneesh Bajpai
[(wa) “victim”
in 2007 ie prior to the amendment, therefore the amended definition would not apply.268
266 Ins. by the Code of Criminal Procedure (Amendment) Act, 2008 (5 of 2009), section 2 (w.e.f. 31 December 2009).
267 Notified w.e.f. 31 December 2009.
268 D Sudhakar v Panapu Sreenivasulu, 2013 Cr LJ 2764 (AP) (DB) : 2013 (1) Andh LT (Cr) 81 .
End of Document

(x) “warrant-case”
(x) “warrant-case”
“warrant-case” means a case relating to an offence punishable with death, imprisonment for
life or imprisonment for a term exceeding two years;
The division of cases into summons and warrant cases is based on the punishment which can be
awarded. Those cases which are punishable with imprisonment for two years and under are summons
cases : the rest are all warrant cases. The division marks off ordinary cases from serious ones, and
determines the mode of trials. The procedure for the trial of summons cases is provided by chapter
XX, while that for warrant cases is dealt within chapter XIX. It may be noted that summons will issue
in all summons cases, and warrant in all warrant cases, unless the Magistrate thinks fit to issue
summons (section 204). The offence under section 493 Indian Penal Code, 1860 would be a warrant
case within the meaning of the expression given in this section.269
When no prejudice is caused in adopting a procedure of summons case instead of warrant case it will
be an irregularity curable under section 465 of the Code.270
269 TK Narayanaswamy v State of Karnataka, 1991 Cr LJ 2115 , 2121 (Kant).
270 Prem Das v State, AIR 1961 All 590 (FB) : 1961 Cr LJ 737 .
End of Document
Mmaneesh Bajpai
(y) words and expressions used herein
words and expressions used herein and not defined but defined in the Indian Penal Code (45 of
1860) have the meanings respectively assigned to them in that Code.
[s 2.64] STATE AMENDMENT IN SECTION 2(y)
Arunachal Pradesh, Mizoram & Nagaland.—Sections 2, 3 with modifications, 5, 20 to 23 : 373 and

chapter V so far as it relates to the arrest of persons specified in sections 109 and 110, applied to
Nagaland with effect from 1 April 1974.—Nagaland Gaz 19 June 1975, Ext No. 15. Same provisions
also extended to Arunachal Pradesh and Mizoram by section O CLXXXIV(E) with effect from 1 April
1974—Gaz. of India, 20 March 1974 Pt II, section 3(iii), Ext, P 421. Section 428 applied to Nagaland
with immediate effect—Nagaland Gaz., 24 April 1974, Ext No 5.
COMMENTS
This clause provides that the words not defined in the Code but defined in the Penal Code shall have
the meaning respectively assigned to them therein.271 Section 8 of the Penal Code states that the
pronoun “he” and its derivatives are used for any person whether male or female. The words used in
section 125 regarding orders for maintenance of wives, children and parents being “any person”, “his”
and “such person”, the daughter would also be bound to maintain her father.272
271 National Small Industries Corp Ltd v State (NCT of Delhi), (2009) 1 SCC 407 (414, 415).
272 M Areefa Beevi v Dr KM Sahib, 1983 Cr LJ 412 (Ker).
Mmaneesh Bajpai
End of Document

[s 3] Construction of references.-
(1) In this Code,—

(a) any reference, without any qualifying words, to a Magistrate, shall be construed,
unless the context otherwise requires,—
(i) in relation to an area outside a metropolitan area, as a reference to a Judicial
Magistrate;
(ii) in relation to a metropolitan area, as a reference to a Metropolitan Magistrate;
(b) any reference to a Magistrate of the second class shall, in relation to an area outside a
metropolitan area, be construed as a reference to a Judicial Magistrate of the second
class, and, in relation to a metropolitan area, as a reference to a Metropolitan
Magistrate;
(c) any reference to a Magistrate of the first class shall,—
(i) in relation to a metropolitan area, be construed as a reference to a Metropolitan
Magistrate exercising jurisdiction in that area;
(ii) in relation to any other area, be construed as a reference to a Judicial Magistrate
of the first class exercising jurisdiction in that area;
(d) any reference to the Chief Judicial Magistrate shall, in relation to a metropolitan
area, be construed as a reference to the Chief Metropolitan Magistrate exercising
jurisdiction in that area.
(2) In this Code, unless the context otherwise requires, any reference to the Court of a
Judicial Magistrate shall, in relation to a metropolitan area, be construed as a reference
to the Court of the Metropolitan Magistrate for that area.
(3) Unless the context otherwise requires, any reference in any enactment passed before the
commencement of this Code,—
(a) to a Magistrate of the first class, shall be construed as a reference to a Judicial
Magistrate of the first class;
(b) to a Magistrate of the second class or of the third class, shall be construed as a
reference to a Judicial Magistrate of the second class;
Mmaneesh Bajpai
(c) to a Presidency Magistrate or Chief Presidency Magistrate, shall be construed as a

reference, respectively, to a Metropolitan Magistrate or the Chief Metropolitan
Magistrate;
(d) to any area which is included in a metropolitan area, as a reference to such
metropolitan area, and any reference to a Magistrate of the first class or of the
second class in relation to such area, shall be construed as a reference to the
Metropolitan Magistrate exercising jurisdiction in such area.
(4) Where, under any law, other than this Code, the functions exercisable by a Magistrate
relate to matters—
(a) which involve the appreciation or shifting of evidence or the formulation of any
decision which exposes any person to any punishment or penalty or detention in
custody pending investigation, inquiry or trial or would have the effect of sending
him for trial before any Court, they shall, subject to the provisions of this Code, be
exercisable by a Judicial Magistrate; or
(b) which are administrative or executive in nature, such as, the granting of a licence, the
suspension or cancellation of a licence, sanctioning a prosecution or withdrawing
from a prosecution, they shall, subject as aforesaid, be exercisable by an Executive
Magistrate.
[s 3.1] STATE AMENDMENTS
Andaman and Nicobar Islands (UT).— The following amendments were made by Regn.
1 of 1974, section 3 (w.e.f. 30 March 1974).
Section 3-A.—(1) In its application to Union Territory of Andaman and Nicobar Islands,
after section 3, section 3A shall be inserted as follows—
3-A. Special provision relating to Andaman and Nicobar Islands.—(1) References in

this Code to—
(a) the Chief Judicial Magistrate shall be construed as references to the District Magistrate or,
where the State Government so directs, also to the Additional District Magistrate;
(b) a Magistrate or Magistrate of the first class or of the second class or Judicial Magistrate of
the first class or of the second class, shall be construed as references to such Executive
Magistrate as the State Government may, by notification in the Official Gazette, specify.
(2) The State Government may, if it is of opinion that adequate number of persons are
available for appointment as Judicial Magistrates, by notification in the Official Gazette,
declare that the provisions of this section shall, on and from such day as may be specified in
the notification, cease to be in force and different dates may be specified for different islands.
(3) On the cesser of operation of the provisions of this section, every inquiry or trial pending,
immediately before such cesser before the District Magistrate or Additional District Magistrate
or any Executive Magistrate, as the case may be, shall stand transferred, and shall be dealt

with, from the stage which was reached before such cesser, by such Judicial Magistrate as the
State Government may specify in this behalf.
Arunachal Pradesh & Mizoram.— The following amendments were made by Gaz. of Ind.,
dt. 20 March 1974. Pt. II, section 3(ii), Ext., p 421 (w.e.f. 1 April 1974).
Section 3(5).—In its application to the Union Territories of Arunachal Pradesh and Mizoram
this provision stands modified as under:
(i) After sub-section (4) insert following sub-section (5)—
(5) Notwithstanding anything contained in the foregoing provisions of this sub-section—
(i) Any reference in such of the provisions of this Code, as apply to the Union Territories of
Arunachal Pradesh and Mizoram, to the Court mentioned in column (1) of the Table below
shall, until the Courts of Session and Courts of Judicial Magistrates are constituted in the
said Union territories, be construed, as references to the Court of Magistrate mentioned in
the corresponding entry in column (2) of that Table.
Table
1 2
Court of Session or Sessions Judge or Chief Judicial Magistrate. District Magistrate.
Magistrate or Magistrate of the First Class or Judicial Executive Magistrate.

Magistrate of the First Class.
(ii) the functions mentioned in Clause (a) of sub-section (4) shall be exercisable by an
Executive Magistrate.
Nagaland.— The following amendments were made by Nagaland Gaz., dt. 19 June 1975,
Extra. No. 15.
Section 3(5).—Modifications of the provisions with reference to the State of Nagaland

and Union territories of Arunachal Pradesh and Mizoram are as follows :—
(a) After sub-section (4) following sub-section (5) which shall be deemed always to have been
inserted:—
(5) Notwithstanding anything contained in the foregoing provisions of this section—

(i) any reference in such of the provisions of this Code as apply to the State of Nagaland to
the Court and authority mentioned in column (1) of the Table below shall, until the Courts
of Session and Court of Judicial Magistrates are constituted in the said areas, be construed
as references to the Court and authority mentioned in corresponding entry in col. (2) of
that Table.
Table
1 2
Court of Session or Sessions Judge or Chief Judicial Magistrate. District Magistrate.
Magistrate or Magistrate of the First Class or Judicial Executive Magistrate.

Magistrate of the First Class.
(ii) references mentioned in sub-section (3) to a Judicial Magistrate and functions mentioned
in sub-section (4) exercisable by a Judicial Magistrate and Executive Magistrate shall be
construed as references to and exercised by, Deputy Commissioner and Additional Deputy
Commissioner and Assistant to Deputy Commissioner appointed under any law in force:
Provided that an Assistant to Deputy Commissioner shall exercise such powers of a Judicial
Magistrate as may be invested by the Governor.
[s 3.2] Scope of section 3.—
This section is the natural result of separation of the judiciary from the executive and allocations of
functions between the Executive Magistrates and the Judicial Magistrates made in chapter II of the
Code. The revised set-up of Magistracy under different names for different areas necessitated the
introduction of the section to explain the corresponding Magistrates for each area. The first two sub-
sections are concerned with references to Magistrates and Courts in the present Code; the third sub-
section substantially equates the present set-up with corresponding set-up in any enactment passed
before the commencement of the Code. “Any enactment passed before the commencement of this
Code” means the repealed Code of Criminal Procedure, 1898 also.273 Sub-section (4) divides the
functions exercisable by a Magistrate under any law other than the Code, into judicial and
administrative or executive functions in clauses (a) and (b) and entrusts exercise of these functions
respectively to the Judicial Magistrate and the Executive Magistrate.274
The provision of the Act must be interpreted in a manner so that its constitutionality is upheld.275
Rajasthan Control of Goonda’s Act (14 of 1975) which is a special law and promulgated with a view
to the maintenance of public order and the provisions contained in the Act overrides the provision
enumerated in section 3(4) of the Code of Criminal Procedure, 1973.276

[s 3.3] Interpretation of penal statutes.—
All the penal statutes should be construed strictly and the court must see that the thing charged as an
offence is within the plain meaning of the words used but it must be borne in mind that the context in
which the words are used is important. The legislative purpose must be noted and the statute must be
read as a whole.277 The court would not construe a section of a statute with reference to that of another
statute unless the latter is in pari materia with the former. The decision interpreting various provisions
of one statute will not have the binding force while interpreting the provisions of another statute.278
[s 3.4] Interpretation : Doubt in favour of accused.—
It is one of the settled principles of interpretation of statutes that when two interpretations are possible
about a penal provision only that which is less onerous to the accused should be preferred (vide
Maxwell on the Interpretation of Statutes, 12th Edn at p 239). The principle applied in construing a
Penal Act is that if, in construing the relevant provisions, there appears any reasonable doubt or
ambiguity, it will be resolved in favour of the person who would be liable to the penalty.279
[s 3.5] “Shall”.—
The use of the word “shall” in a provision is not conclusive on the question of it being mandatory in
character. The provisions of a statute creating public duties, are generally speaking directory. The
Legislature while giving certain procedural instructions with a view to require strict compliance
thereof by public functionaries, excluding all discretion on their part, uses the word “shall”.
Nevertheless, non-compliance of these instructions per se does not result in rendering the acts done as
null and void. It has to be shown that such non-compliance has caused prejudice and failure of
justice.280
[s 3.6] “And”.—
In Stroud’s Judicial Dictionary, 3rd Edn, it is stated at p 135 that “and” has generally a cumulative
sense, requiring the fulfilment of all the conditions that it joins together, and herein it is the antithesis
of or, sometimes, however, even in such a connection, it is, by force of a context, read as “or”.
Similarly in Maxwell on Interpretation of Statutes, 11th Edn, it has been accepted that “to carry out
the intention of the Legislature it is occasionally found necessary to read the conjunctions “or” and
“and” one for the other”.281
[s 3.7] No presumption of repeal.—
There is a presumption against a repeal by implication, which is based on the theory that the
Legislature while enacting law has complete knowledge of the laws on the same subject-matter, and
when it does not provide a repealing provision, it gives out an intention not to repeal an existing
legislation. Implied repeals are not to be favoured and where two statutes are entirely affirmative and
identical, no question of inconsistency could arise.282
[s 3.8] Doctrine of implied repeal.—
The doctrine of implied repeal is based on the theory that the legislature, which is presumed to know
the existing law, did not intend to create any confusion by retaining conflicting provisions and,
therefore, when the court applies the doctrine, it does no more than give effect to the intention of the

Legislature by examining the scope and the object of the two enactments and by a comparison of the
provisions. A repeal by implication will not be inferred merely from something contained in the
preamble of the Act. The continuance of existing legislation, in the absence of an express provision of
repeal, being presumed, the burden to show that there has been a repeal by implication lies on the
party asserting the same. The presumption is, however, rebutted and a repeal is inferred by necessary
implication, when the provisions of a later Act are so inconsistent with or repugnant to the provisions
of the earlier Act “that the two cannot stand together”.283
[s 3.9] Interpretation shall give meaning to every word.—
For interpreting a provision in a statute, it is important to remember that the Parliament does not waste
its breath unnecessarily. The Parliament is not expected to use unnecessary expressions. The Courts
are duty bound to examine and give meaning to every word of the statute in its context.284
[s 3.10] Interpretation to give effect to intention of legislature.—
It is well known principle that the statutory provision must be construed reasonably and rationally to
give effect to the intention of the legislature.285
[s 3.11] Interpretation to advance the object of statute.—
While interpreting the provisions of a statute, Courts must strive to interpret the statute so as to protect
and advance the object and purpose of the Act.286 In interpreting the scope of a statute the dominant
purpose underlying the statute has to be borne in mind.287
There is a maxim “Absoluta Sententai Expositore Non Indigftus”, which means that if you have plain
words of a statute capable of only one interpretation, no explanation of them is required. Similarly,
there is another maxim “A Verbis Legis Non Est Recedendum”, which connotes that from the words of
law there must be no departure.288
[s 3.12] Statute must be read as a whole.—
Elementary rule is that a statute must be read as a whole. But while a particular section is to be
interpreted different parts of the said section must be read as a whole.289
[s 3.13] Proviso.—
As a general rule, a proviso is added to an enactment to qualify or carve out an exception to what is in
the enactment and ordinarily a proviso is not interpreted as stating a general rule and it is a
fundamental rule of construction that a proviso must be considered in relation to the principal matter
to which it stands as a proviso. Therefore, it has to be construed harmoniously with the main
enactment. A proviso may really not be a proviso in the accepted sense but an independent legislative
provision. Where language is abundantly clear and no other view is possible, it is futile to go into the
question whether a proviso operates as a substantive provision or only by way of an exception.290 The
function of a proviso or an exception is that it qualifies the generality of the main enactment by
providing an exception and taking out as it were from the main enactment a portion which but for the
proviso would fall within the main enactment. Ordinarily, it is foreign to the proper function of the

proviso to read it as providing something by way of an addendum.291
The proper function of a proviso is to except and deal with a case which otherwise fall within the
general enactment of the main enactment and its effect is confined to that case.292 Where the proviso
consists of two parts, one part may be declaratory but the other part may not be so. Therefore, merely
because one part of the proviso has been held to be declaratory it does not follow that the second part
of the proviso is also declaratory.293
[s 3.14] Marginal Note.—
It is well settled that where the statute is clear, marginal note may not have any role to play.294
A marginal note although may not be relevant for rendition of decisions in all types of cases but where
the main provision is sought to be interpreted differently, reference to marginal note would be
permissible in law.295
[s 3.15] Interpretation of Definition clause.—
The definition clause in a particular enactment is applicable to that Act alone unless by a special
provision it is also made applicable to interpret in other Acts.296
Where the definition is an inclusive definition, the use of the word “includes” indicates an intention to
enlarge the meaning of the word used in the statute. Consequently, the word must be construed as
comprehending not only such things which they signify according to their natural import, but also
those things which the interpretation clause declares that they shall include.297
[s 3.16] Special provision.—
In applying the principle that a special provision prevails over a general provision, the scope of the
special provision must be strictly construed in order to find out how much of the field covered by the
general provision is also covered by the special provision.298
[s 3.17] Function of Court.—
The function of the court is only to expound and not to legislate and where the words of the statute are
clear and unambiguous it is the plain duty of the court to give effect to them and not to import
extraneous considerations in order to discover the legislative intent. It is only when for some reason an
ambiguity creeps in that such aids are permissible. When a provision is capable of bearing two or
more constructions, the most firmly established rule of construction of such provision is the rule laid
down in Heydon’s case which also is known as “purposive construction” or “mischief rule”.299
[s 3.18] Precedents.—

The Court is not bound to follow a decision of its own if given incuriam. A decision is given per
incuriam when the court has acted in ignorance of a previous decision of its own or of a court of a
coordinate jurisdiction which covered the case before it, or when it has acted in ignorance of a
decision of the House of Lords. In the former case, it must decide which decision to follow, and in the
latter, it is bound by the decision of the House of Lords.300
[s 3.19] State’s power to withdraw or stop investigation.—
State can direct withdrawal of prosecution or direct police to stop investigation in respect of inquiry
under O CXLIV(3) of the Madras Police Standing Orders.301
[s 3.20] Judicial Magistrate.—
The term Magistrate in sections 3(3), 190(2) and 209 means a Judicial Magistrate, therefore, the Sub-
divisional Magistrate cannot take cognizance of an offence and direct the case to be sent to the District
and the Sessions Judge.302
[s 3.21] Remand—Special Judge—Power of.—
The Special Judge under the Criminal Law (Amendment) Act, 1952 can exercise the powers conferred
on a Magistrate under section 167 to authorise the detention of the accused in the custody of the
police.303
273 Somari Rai v Raghu Nath Prasad Sharma, 1977 Cr LJ 718 (Pat) overruled in Radha Devi v Mani Prasad Singh, 1980 Cr LJ NOC
61 (Pat) : AIR 1980 Pat 41 (FB).
274 Mammoo v State of Kerala, 1980 Cr LJ NOC 75 (Ker) : AIR 1980 Ker 18 ; also see AP Police Officers’ Association, 1981 Cr LJ
641 (AP).
275 Aslam Mohammad Merchant v Competent Authority, (2008) 14 SCC 186 (208).
276 Devendra Jain v State of Rajasthan, (2002) 1 Raj LR 141 : (2002) 2 Raj LW 705 : 2002 Cr LJ 1655 1657 (1658, 1659) (Raj-DB).
277 NK Jain v C K Shah, AIR 1991 SC 1289 : (1991) 2 SCC 495 : 1991 Cr LJ 1347 , 1359 (SC); PK Arjunan v State of Kerala, AIR
2007 SC 2331 : (2007) 3 SCC (Cri) 162 .
278 Sudesh Kumar v State of Uttrakhand, 2008 Cr LJ 1604 (1609) : AIR 2008 SC 1120 : (2008) (3) SCC 111 .
279 Kumaresan v Ameerappa, 1992 (1) Crimes 23 , 25 (Ker-DB) : (1991) 1 Ker LT 797 , 893.

280 Salamat Ali v State, 1991 Cr LJ 1991 , 1994 (MP).
281 Ishwar Singh v State of UP, AIR 1968 SC 1450 : 1969 Cr LJ 19 , 23 : (1969) 1 SCR 219 .
282 Orient Paper Mills v State of MP, 1989 (1) Crimes 400 , 405 (MP).
283 Municipal Corp, Palai v TJ Joseph, AIR 1963 SC 1561 : (1964) 2 SCR 87 ; Maganti v State of AP, AIR 1970 SC 403 : (1969) 2
SCC 96 ; Orient Paper Mills v State of MP, 1989 (1) Crimes 400 , 404 (MP).
284 Ali v Sufaira, 1988 (3) Crimes 147 , 149 (Ker) : (1988) 2 Ker LT 94 .
285 Satyanarayana v State of Karnataka, AIR 1986 SC 1162 : (1986) 2 SCC 512 ; Satyadeo Pandey v State of UP, 1987 (1) Crimes
637 , 639 (All).
286 Kothari Industrial Corp v K. Shanmugasundaram, Agricultural Officer, 1991 (3) Crimes 661 , 668 (Mad); UOI v Ranbaxy
Laboratories Ltd, AIR 2008 SC 2286 : (2008) 3 SCC (Cri) 123 .
287 Superintendent, Narcotic Control Bureau v Selvarajah, 1991 (2) Crimes 785 , 788 : 1992 Cr LJ 2143 (Mad).
288 Jai Prakash v Radhey Shyam, 1987 (2) Crimes 363 , 366 (All) : 1987 (24) ACC 464 .
289 Syed Asadullah Kazmi v Additional Magistrate, 1988 (3) Crimes 330 , 332 (All) : AIR 1981 SC 1724 : (1981) 3 SCC 483 .
290 CIT v IM Bank Ltd, AIR 1959 SC 713 : 1959 Supp (2) SCR 256 ; State of Rajasthan v Leela Jain, AIR 1965 SC 1296 : (1965) 1
SCR 226 ; CIT, UP v Jagganath, AIR 1969 SC 209 : (1969) 71 ITR 296 ; Rameshchandra Patel v UOI, 1991 (1) Crimes 667 , 670
(MP); Dinesh v State of Rajasthan, AIR 2006 SC 1267 : 2006 Cr LJ 1679 : (2006) 3 SCC 771 .
291 Holani Auto Links Pvt Ltd v State of MP, (2008) 13 SCC 185 (197).
292 Maulavi Hussein Aazi Abrahan Umarji v State of Gujarat, 2004 AIR SCW 4396 (4401) : 2004 Cr LJ 3860 : AIR 2004 SC 3946 :
(2004) 3 Crimes 241 (SC) : (2004) 6 SCC 672 .
293 CIT, Bhopal v Shelly Products, AIR 2003 SC 2532 (2543) : (2003) 5 SCC 461 : (2003) 261 ITR 367 .
294 Entertainment Network (India) Ltd v Super Cassette Industries Ltd, (2008) 13 SCC 30 (128).
295 Deewan Sufi v Rajendra Pd Arderi, (2007) 10 SCC 528 : (2007) 1 Scale 32 ; Sarbjit Rick Singh v UOI, (2008) 2 SCC 417 (438) :
(2008) 1 SCC (Cri) 449 .
296 Md Abdul v State of WB, 1991 (2) Crimes 741 , 746 (Cal-DB) : (1964) 3 SCR 980 (SC).

297 Ramanlal Bhailal Patel v State of Gujarat, (2008) 5 SCC 449 (461) : AIR 2008 SC 1246 .
298 Raghubir Prasad Dudhwalla v Chamanlal Mehra, 1964 (1) Cr LJ 489 : (1964) 3 SCR 980 .
299 Rameshchandra Patel v UOI, 1991 (1) Crimes 667 , 670 (MP).
300 Jaisri Sahu v Rajedewan Dubey, AIR 1962 SC 83 : (1962) 2 SCR 558 ; Jai Nath v State of UP, 1987 (3) Crimes 97 , 101 (All).
301 Annamalai v Govt of TN, 1989 Cr LJ 2055 (Mad).
302 Sukhdeo Tiwari v State of Bihar, 1976 Cr LJ 1350 (Pat).
303 State of TN v Krishnaswami Naidu, 1979 LW (Crl) 199 Mad : AIR 1979 SC 1255 .
End of Document

[s 4] Trial of offences under the Indian Penal Code and other laws.-
(1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into,
tried, and otherwise dealt with according to the provisions hereinafter contained.
(2) All offences under any other law shall be investigated, inquired into, tried, and otherwise
dealt with according to the same provisions, but subject to any enactment for the time
being in force regulating the manner or place of investigating, inquiring into, trying or
otherwise dealing with such offences.
Sections 4 and 26 govern every criminal proceeding both as regards the tribunal by which a crime is to
be tried and as to the procedure to be followed. It is apparent from section 4 that the provisions of the
Criminal Procedure Code are applicable where an offence under the Penal Code or under any other
law is being investigated, inquired into, tried or otherwise dealt with.304 Section 4, Code of Criminal
Procedure, 1973 has been enacted so as to accommodate a deviant procedure under “any other law.305
Where cases against an accused are pending in court in more than one State, the court should send the
accused to the court in another State on requisition, for the purpose of trial.306
The Indian Courts have no jurisdiction to try an offence which is alleged to have been committed by a
foreign national in a foreign vessel outside the territory of India.307
Where a person not an Indian citizen commits offence outside India, provisions of Indian Penal Code,
1860 and Code of Criminal Procedure, 1973 do not apply.308
Where the complainant alleged that he was duped by accused persons of Rs 30 lakhs on the pretext of
Mmaneesh Bajpai
sending his son to foreign country for permanent job, it was held that the allegations are of serious
nature and investigation is to be conducted by police authorities only. The offence under section 420
of the Indian Penal Code, 1860 is triable by regular Criminal Court only and not by Gram
Panchayat.309
A Philippine National a member of a crew in Japanese vessel attempted to commit murder of the
Captain and Chief Officer of the ship while he was on board of the ship. At that time the ship was 850
miles away from the Cochin coast. He was being tried for offence under section 307, Indian Penal
Code, 1860 in Courts in India. As the offence was committed in a foreign vessel outside the territory
of India, the proceedings pending in Indian Courts were quashed.310
In the undermentioned case,311 it was alleged by the prosecution that at 10.5 nautical miles off
Karaikkal, near Kodikarai a ship was located and in that ship ammunitions were illegally brought from
Bangkok for commission of terrorist act in India. It was an admitted fact on record that after alleged
location of the ship, the ship was arrested beyond the territorial water roughly at a distance of 60
miles, or 150 miles as stated by the prosecution witnesses. Since there was no definite proof that at the
relevant time the ship was found within the territorial waters of India, the accused was be acquitted of
the charges under section 120B, Indian Penal Code, 1860, sections 3(iii), 5 and 6 of TADA Act and
section 5 of the Explosive Substances Act, 1908.312
If a Criminal Court is to be an effective instrument in dispensing justice, the Presiding Judge must
cease to be a spectator and a mere recording machine by becoming a participant in the trial evincing
intelligence, active interest and elicit all relevant materials necessary for reaching the correct
conclusion, to find out the truth, and administer justice with fairness and impartiality both to the
parties and to the community it serves.313
This section permits section 140 of the Gram Panchayats Act to prevail over section 468.314
[s 4.2] “Otherwise dealt with”.—
From the words “otherwise dealt with” it does not necessarily mean something which is not included
in the investigation, inquiry or trial and the word “otherwise” points out to the fact that the expression
“dealt with” is all comprehensive and that investigation, inquiry and trial are some aspects dealing
with the offence.315 The use of the words “otherwise dealt with” in section 4 does not justify a
conclusion that inquiries in connection with disciplinary proceedings on the basis of offences alleged
to have been committed by the Government Servant must also be held in accordance with the
provisions of this Code.316
The word “otherwise” points to the fact that the expression “dealt with” is all comprehensive and that

the investigation, inquiry or trial are some aspects of dealing with the offences.317
Where an offence was committed in Goa on 25 June 1963 ie prior to the coming into force of the Code
in Goa on 1 November 1963 and the prosecution for the offence was started in Goa in 1966, it was
held that the offence should be tried under the Code and not under the Portuguese Criminal Procedure
Code which stood repealed with effect from 1 November 1963.318
Ordinarily trial of an accused in a criminal prosecution is to be concluded under the provisions of

Criminal Procedure Code.319
[s 4.3] Criminal trial.—
Time and again the Supreme Court has laid down propositions and guidelines for streamlining the
judicial system. In a case under sections 395, 396 and 397 of the Indian Penal Code, 1860, where the
Trial Court had awarded death sentence to the accused persons, the court insisted upon proper
judicious approach by member of the judicial fraternity. It was held that opinions expressed by Judges
and jurists on private forum should not influence trial.320 KS Radhakrishnan J, speaking in a separate
judgment, observed as follows:
Criminal Courts have to decide the cases before them examining the relevant facts and evidence placed before them, applying
binding precedents. Judges or academicians opinions, predilection, fondness, inclination, proclivity on any subject, however
eminent they are, shall not influence a decision making process, especially when Judges are called upon to decide a criminal case
which rests only on the evidence adduced by the prosecution as well as by the defense and guided by settled judicial precedents.
National Judicial Academy and State Judicial Academies should educate our judicial officers in this regard so that that they will
not commit such serious errors in future.321
Dipak Misra J, speaking separately in the same case, observed as follows:
A Judge trying a criminal case has a sacred duty to appreciate the evidence in a seemly manner and is not to be governed by any
kind of individual philosophy, abstract concepts, conjectures and surmise and should never be influenced by some observations or
speeches made in certain quarters of the society but not in binding judicial precedents. He should entirely ostracize prejudice and
bias. The bias need not be personal but may be an opinionated bias.322

The Supreme Court stressed the importance of a fair trial in criminal cases. It was observed that
adjournments are sought on the drop of hat by counsel, even though witnesses are present in court.
The Supreme Court deprecated the conduced of a trial where cross-examination of one witness was
done one year and eight months after his examination-in-chief.323 Dipak Misra J (speaking for the
Bench) observed as follows:
There is no cavil over the proposition that there has to be a fair and proper trial but the duty of the court while conducting the trial
to be guided by the mandate of the law, the conceptual fairness and above all bearing in mind its sacrosanct duty to arrive at the
truth on the basis of the material brought on record. If an accused for his benefit takes the trial on the path of total mockery, it
cannot be countenanced. The court has a sacrosanct duty to see that the trial is conducted as per law.324
In the above case it was further said that where a police officer who was a member of the raiding party
in a bribery case sent the FIR to police station and thereafter himself carried on the formal
investigation, the investigation is not vitiated. Therefore, the trial would not also be vitiated.
Moreover, the IO (Investigating Officer) was not in any way personally interested in getting the
appellant convicted.325
Provisions of Karnataka Lokayukta Act do not impliedly repeal provisions of Criminal Procedure
Code. Therefore, launching of prosecution by complaint invoking the provisions of the Prevention of
Corruption Act, 1988 read with Criminal Procedure Code is not curtailed by enforcement of
Karnataka Lokayukta Act, 1984.326
In a case, where the High Court had quashed the FIR merely on the technical ground that the copy of
the FIR had not been given to the informant, in was held by the Supreme Court that the issue requires
to be examined on the touchstone of the doctrine of prejudice. Unless in a given situation, the
aggrieved makes out a case of prejudice or injustice, some infraction of law would not vitiate the
order/enquiry/result. In judging the question of prejudice, the court must act with a broad vision and
look to the substance and not to technicalities.327
In a criminal trial, where adjournments were granted on mere asking and cross-examination of
witnesses were deferred without recording any reason and dates were given after a long gap, it was
held by the Supreme Court that the trial was conducted in an extremely haphazard manner and
deprecated the conduct of the trial.328
[s 4.4] “Any other law”.—

The words “any other law” in this section do not cover contempt of a kind punishable summarily by
the High Courts.329 Kerala Essential Services Maintenance Act is “other law”.330
If the offence committed is cognizable, provisions of chapter XII containing section 154 and onward
would become applicable and it would be the duty of the police to register the FIR and investigate into
the same. Section 4 of the Code of Criminal Procedure, 1973 provides that provisions of the Code
would be applicable where an offence under the Indian Penal Code, 1860 or any other law is being
investigated, inquired into, tried or otherwise dealt with. Thus, offences under any other law could
also be investigated, inquired into or tried with according to the provision of the Code except in case
of an offence where the procedure prescribed thereunder is different than the procedure prescribed
under the Code.331
In a case for breach of provisions under the Transplantation of Human Organ and Tissue Act, 1994,
FIR cannot be entertained for breach of any of the provisions of the Act. Police officers are not
authorized to investigate a case relating to the breach of provision of the Act. Only a complaint
petition is maintainable and the complaint is to be made by the appropriate authority or any officer
authorized in that behalf either by the central Government or the state Government or by the
appropriate authority. When such a complaint is filed before the competent court, the complaint case
procedure as laid down under chapter XV and other provisions of the Code of Criminal Procedure,
1973 dealing with complaint case procedure are to be followed at the time of taking cognizance and
issuance of process as well as by the trial Court.332
[s 4.5] Special Procedure.—
If a Special Procedure is prescribed under the special enactment, it is that procedure which has to be
followed and not the one prescribed under the Code.333 Special procedure laid down in section 5(1) of
the West Bengal Criminal Law Amendment (Special Courts) Act, 1949 has to be followed in view of
this section.334 Where there is no conflict between the special Act and the Code or where the special
Act is silent the procedure prescribed under the Code would apply.335
The fact that under section 36 of the Abkari Act all searches under the Act shall be made in
accordance with the provisions does not indicate that offences under the Abkari Act will have to be
investigated and charge-sheeted by the police under the provisions of the Code.336
[s 4.6] Trial Commencement of.—
“Trial” means determination of issues adjudging the guilt or the innocence of a person. The person has
to be aware of what is the case against him and it is only at the stage of framing of the charges that the
court informs him of the same. Thus, the trial commences only on charges being framed; it does not
commence on the cognizance being taken.337
[s 4.7] Applicability to Army Act.—

The Army Act contains provisions for trial of offences and, therefore, the Code cannot be made
applicable to the subjects to be dealt with under the Army Act.338
Merely because the procedure of the Army Act and the Rules were not followed, the conviction will
not be vitiated or rendered illegal more particularly when the military authority did not exercise the
discretion and decide in which Court the proceedings shall be instituted.339
[s 4.8] Drugs and Cosmetics Act, (23 of 1940).—
General provision to the competence of the Magistrate of 1st Class and that of the higher Courts based
on the quantum of sentence would nevertheless apply to the trial of offences under the provisions of
Drugs and Cosmetics Act, 1940. Whatever jurisdiction is vested in a court of Magistrate of 1st Class,
would necessarily be possessed by the higher Court of the court of Sessions or Additional Sessions
Judge.340
[s 4.9] Offence under Essential Commodities Act.—
Section 452, like all other provisions of the Code, is subject to the provisions of this section and
section 5 and as a result, in respect of trial of any offence under a special law, or any law other than
the Penal Code, like the Essential Commodities Act, 1955, the provisions of the Code would cease to
apply to the extent provisions are made in such other special law. The Essential Commodities Act,
1955 in section 7(i)(b) provides that on conviction of the accused, the essential commodities, “in
respect of” which the offence has been committed, shall be forfeited and, therefore, to that extent the
general provisions of section 452 stand outweighed.341
The Code of Criminal Procedure, 1973 applies to cases triable by the Special Judge under an
Essential Commodities Act.342
Normally the Criminal Courts of the Country have the jurisdiction and the ouster of jurisdiction of the
ordinary Criminal Court in respect of a crime can only be inferred if, that is the irresistible conclusion
flowing from necessary implication of the new Act.343
[s 4.10] Offences under Foreign Exchange and Regulation Act (46 of 1973).—
Where the special litigation or enactment like FERA is silent with regard to certain procedure like
where to investigate a woman or a minor, the provisions of Code of Criminal Procedure, 1973 would
apply. Section 160, Code of Criminal Procedure, 1973 was held applicable to investigate a woman in
offences under FERA. The interrogation of the petitioner woman was allowed at her residence.344
The Prevention of Corruption Act, 1988 is a Special Act. It over-rides the provisions of the general

law, viz., Code of Criminal Procedure. But, then when a matter is not covered by the 1988 Act, in
view of sub-section (3) of section 5 of the 1988 Act, the provisions of the Code of Criminal Procedure
shall clearly be applicable.345 The provisions of the Prevention of Corruption Act 1988 not bar the
application of the provisions of section 178 Code of Criminal Procedure, 1973.346
[s 4.11] Prevention of Corruption Act, 1988.—
The place of jurisdiction would be determinative by reference to the place where the main offence was
committed. Where the offence under the Prevention of Corruption Act, 1988 was committed at
Lucknow, held the Special Judge designated court at Lucknow had jurisdiction to try the offence.347
[s 4.12] Offence under Prevention of Food Adulteration Act.—
The Prevention of Food Adulteration Act and Drugs and Cosmetics Act, 1940 are special statutes
laying down special procedure for inquiry and trial of the offences under the Act, the procedure laid
down in the two Acts will have to be followed in derogation of the procedure laid down in Criminal
Procedure Code.348 Where the certificate issued by the Director of Central Food Laboratory shows no
adulteration, the accused has to be discharged by virtue of the provisions of the Code and even in the
absence of any provision in the Prevention of Food Adulteration Act, 1954.349
[s 4.13] Power of remand in Special Act.—
This section steps in to provide power of remand or bail which has not been enacted in a Special
Act.350
[s 4.14] Procedure under Customs Act for detention of suspect.—
There is no provision made in the Customs Act laying down the procedure which may be followed for
obtaining the order of the Magistrate for detaining such an arrested person in any of the custody.351
[s 4.15] Dowry Prohibition Act, 1961.—
Section 7 of the Dowry Prohibition Act, 1961 makes it clear that the provisions of the Act prevail over
the provisions of the Code.352 The effect of the non-obstante clause in section 7 of the Dowry
Prohibition Act referring to the Code cannot exclude the entire Code from the purview of the
section.353
[s 4.16] Non-obstante clause.—
The effect of a non-obstante clause in a legislation is to enable that legislation to prevail over the
provisions in any other legislation, which are contrary to it. In the case of conflict, the legislation
having non-obstante clause would prevail. If a different period of limitation had been prescribed for
prosecution of offences under the Act, depending upon the punishment awardable for such offence,
then by virtue of the non-obstante clause, the period of limitation provided under the Act, would
prevail over the period of limitation prescribed under the Code.354
[s 4.17] Prescription of limitation alone.—
The prescription of the period of limitation by the Gram Panchayats Act, though not similar to

regulating the manner or place of investigation, inquiring into or trying, still by virtue of the enabling
words “otherwise dealing with”, occurring in this section, the same is permissible and protected by the
said provision.355
[s 4.18] Offence under Negotiable Instruments Act, 1881.—
The payee has to file a private complaint under section 200, before the competent Magistrate and the
police are not empowered to act upon a private complaint filed for an offence under section 138 of the
Act.356 The provisions of section 155 Code of Criminal Procedure, 1973 cannot be held applicable to
the prosecution of an offence under section 138 of the Negotiable Instruments Act.357
The phrase “any other law” appearing in section 4(2) of the Code, would encompass within its sweep
N.I. Act also. Section 219 Code of Criminal Procedure, 1973 is applicable to investigations, inquiries
and trials under the Negotiable Instruments Act.358
[s 4.19] Applicability of section 437 to other laws.—
A person arrested and produced by a Customs Officer before a Magistrate, on suspicion of

commission of an offence under sections 135, 104 of the Customs Act, 1962 may be released on bail
under section 437 by virtue of this section.359
The Judicial Magistrate First Class has jurisdiction to try the offence under sections 87 and 50(k) of
Karnataka Forest Act.360
When there is a special enactment in force relating to the manner of investigation, enquiry or
otherwise dealing with such offences, the other powers under the Code should be subject to such
special enactment. In interpreting the scope of such a statute the dominant purpose underlying the
statute had to be borne in mind.361
[s 4.20] Trial before Court-martial.—
The Courts-martial are bound to follow the provisions of the general law of evidence. However, the
provisions of the Code as such are not applicable.362
[s 4.21] Narcotic Drugs and Psychotropic Substances Act, 1985.—
The Code of Criminal Procedure, 1973 is not applicable where any different procedure has been
prescribed by any law. When the Special Act prescribes a separate provision for bail, the general
provisions of bail under the Code will not be applicable.363
The provisions of the Code would supplement those of the Narcotic Act to the extent the former are

not inconsistent with latter. Such provisions of the Code will, therefore, continue to apply. The
procedure enacted in chapter V of the Narcotic Act, as far as applicable, shall have precedence over
that of the Code. To the extent the provisions of Code are not inconsistent with those of Narcotic Act,
the same shall continue to govern the trial of cases under Narcotic Act, thus the procedure laid down
in the Narcotic Act is not exhaustive.364
The trial for offences under the NDPS Act, which are punishable for imprisonment of three years or
less shall be a summary trial by the Magistrate under chapter XXI, Code of Criminal Procedure, 1973
in view of section 36A of the Act, and section 4(2) Code of Criminal Procedure, 1973.365
The High Court’s power to grant bail under section 439 are also subject to the limitations contained in
section 37 and the non-obstante clause is clearly intended to restrict the powers to grant bail. In case
of inconsistency between section 439 and section 37 of the Narcotic Drugs and Psychotropic
Substances Act, the latter should prevail.366
Section 36A of the Narcotic Drugs and Psychotropic Substances Act, 1985 provides a procedure
which differs from the procedure contained in the Code with regard to trial of a warrant case by the
court of Sessions. Under the Code, the court of Session takes cognizance of a case under section 193,
once the case is committed to it. However, under section 36A of the Act, the Special Court is
empowered to try all offences under the Act, punishable with imprisonment for a term of more than
three years. The Special Court is empowered to take cognizance of the case without the committal of
the accused before it, even if the accused is not charge-sheeted by the police.367
[s 4.22] Juvenile Justice (Care and Protection of Children) Act, 1986.368—
The Juvenile Justice Act, is a complete Code in itself and has sweepingly overriding effect on any
other enactment of the State Legislature or Parliament, viz., the “Code” regarding inquiry/proceedings
or a trial against a delinquent juvenile on any criminal charge.369
[s 4.23] Contempt of Courts Act.—
The Code does not apply in matters of contempt triable by the High Court. The High Court can deal
with it summarily and adopt its own procedure. Jurisdiction for contempt is not under the Code. It is a
special subject and jurisdiction is conferred by a special set of self-contained laws particular to court
of records.370
[s 4.24] Dacoity Affected Areas Act.—
Code of Criminal Procedure, 1973 does not apply to special trial under the provisions of the Dacoity
Affected Areas Act.371
[s 4.25] UP Gangster and Anti-Social Activities Prevention Act, 1986.—

Once in section 10(4) of the UP Gangster and Anti Social Activities Prevention Act, 1986 there is a
special provision for the Special Judge to try the cases before him according to the procedure
prescribed for warrant cases before the Magistrate, he is not bound to follow the procedure prescribed
in the proviso of section 202(2).372
[s 4.26] SC & ST Act—Special Court.—
A Special Court under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities), Act
1989 is essentially a court of Sessions, and it can take cognizance of the offence when the case is
committed to it by the Magistrate in accordance with the provisions of Code of Criminal Procedure,
1973.373
[s 4.27] Trade and Merchandise Marks Act.—
As revealed by section 4(2), and section 190 Code of Criminal Procedure, 1973 upon a complaint
filed by a person constituting the offence, the Magistrate would be competent to take cognizance of
the offence irrespective of the qualifications or eligibility of the complainant to file complaint. A
complaint filed by a sub-dealer of the goods under sections 81, 82 or section 83 of the Trade and
Merchandise Marks Act would not be dismissed on the mere ground that only the registered owner of
the trade mark can file complaint.374
[s 4.28] Special Court.—
A Special Court, while trying a “scheduled offence”, so far as may be, follow the procedure provided
in the Code for trial of sessions cases.375
A Special Judge is a court of original criminal jurisdiction, shall have all powers as any Court of
original criminal jurisdiction except those specifically excluded.376 Where by State Government notifi-
cation jurisdiction had been conferred on Special Judge Ropar to try cases registered all over the State,
held Special Judge Ropar had jurisdiction to try cases registered at Mohalli, the objection of the
accused that the Special Judge had no jurisdiction to try the offence as the offences had been
committed within the jurisdiction of Police Station at Chandigarh, was repelled.377
304 Khatri IV v State of Bihar, AIR 1981 SC 1068 : (1981) 2 SCC 493 : 1981 Cr LJ 597 (599) : (1981) 2 SCC 493 .
305 DB Benu v State of Kerala, (2002) 3 Ker 323 : (2002) 3 Ker LT 133 : 2002 Cr LJ 4374 (4379) (Ker-DB).
306 Babua v State of Orissa, AIR 2002 SC 2393 : (2002) 3 Crimes 10 : (2002) 9 SCC 13 : 2002 Cr LJ 2980 (2982) (SC).

307 Om Hemarajani v State of UP, 2004 (48) All Cri C 151 (153) (All); Om Heramani v State of UP, (2005) 1 SCC 617 : 2005 Cr LJ
665 : AIR 2005 SC 392 .
308 Fatma Bibi Ahmed Patel v State of Gujarat, (2008) 6 SCC 789 (793).
309 Sharanjit Kaur v State of Punjab, AIR 2013 SC 2745 : (2013) 8 SCC 726 : 2013 Cr LJ 3859 (SC).
310 Raymund Gencianeo v State of Kerala, 2004 Cr LJ 2296 (2297) : 2003 (4) Crimes 421 (424) (Ker).
311 State of TN v Balan, 2001 (3) Crimes 161 (162) (SC).
312 State of TN v Balan, 2001 (3) Crimes 161 (162) (SC).
313 Zahira Habibullah Sheikh v State of Gujarat, 2006 Cr LJ 1694 (1707) : AIR 2006 SC 1367 : 2006 (3) SCC 374 .
314 S Ramachandra Reddy v PN Ravindra Reddy, 1991 (2) Crimes 230 , 232 (AP).
315 State of Punjab v Balbir Singh, AIR 1994 SC 1872 : 1994 AIR SCW 1802 : (1994) 3 SCC 299 : 1994 SC (Cri) 634 (643).
316 RP Kapur v S Pratap Singh Kairon, AIR 1964 SC 295 : (1964) 4 SCR 224 : 1964 (1) Cr LJ 224 , 228 (SC).
317 Delhi Administration v Ram Singh, AIR 1962 SC 63 : (1962) 1 Cr LJ 106 : (1962) 2 SCR 694 .
318 Asst. Collector of Customs v U B Revankar, 1970 Cr LJ 421 (Goa).
319 Balabhadra Dash v State of Orissa, 1991 Cr LJ 2457 , 2459 (Ori) : 71 (1991) CLT 823 .
320 OMA alias Om Prakash v State of TN, AIR 2013 SC 825 : (2013) 3 SCC 440 : 2013 Cr LJ 997 (SC).
321 OMA alias Om Prakash v State of TN, AIR 2013 SC 825 , para 21 at p 831-832 : (2013) 3 SCC 440 : 2013 Cr LJ 997 (SC).
322 OMA alias Om Prakash v State of TN, AIR 2013 SC 825 , para 56 at p 839 : (2013) 3 SCC 440 : 2013 Cr LJ 997 (SC).
323 Vinod Kumar v State of Punjab, AIR 2015 SC 1206 : (2015) 3 SCC 220 .
324 Vinod Kumar v State of Punjab, AIR 2015 SC 1206 , para 41 at p 1223 : (2015) 3 SCC 220 .
325 Vinod Kumar v State of Punjab, AIR 2015 SC 1206 , para 41 at p 1223; [S Jeevanatham v State (through Inspector of Police, TN),
AIR 2004 SC 4608 : (2004) 5 SCC 230 : 2004 Cr LJ 3834 -Foll].
326 BS Yeddyurappa v Sirajin Basha, 2014 Cr LJ 1469 (Kar) (DB) : 2014 (1) AKR 599.

327 State v NS Gnaneswaran, AIR 2013 SC 3673 : (2013) 3 SCC 594 [Jankinath Sarangi v State of Orissa, (1969) 3 SCC 392 : 35
(1969) CLT 769 (SC); State of UP v Shatrughan Lal, AIR 1998 SC 3038 : (1998) 6 SCC 651 : State of AP v Thakkidiram Reddy,
AIR 1998 SC 2702 : (1998) 6 SCC 554 ; Debotosh Pal Choudhury v Punjab National Bank, AIR 2002 SC 3276 : (2002) 8 SCC
68 -Ref].
328 Gurnaib Singh v State of Punjab, (2013) 7 SCC 108 : 2013 Cr LJ 3212 (SC).
329 Sukhdev Singh v Teja Singh, AIR 1954 SC 186 : 1954 Cr LJ 460 .
330 DB Benu v State of Kerala, (2002) 3 Ker 323 : (2002) 3 Ker LT 133 : 2002 Cr LJ 4374 (4379) (Ker-DB).
331 Vishal Agrawal v Chhattisgarh State Electricity Board, AIR 2014 SC 1539 : (2014) 3 SCC 696 : 2014 Cr LJ 1317 (SC).
332 N Ratnakumari v State of Odisha, 2014 Cr LJ 4433 (Ori) (DB) : 2015 (1) Crimes 31 (Ori).
333 State (UOI) v Ram Saran, (2003) 12 SCC 578 : (2004) 101 FLR 447 : AIR 2004 SC 481 : 2004 (1) Crimes 232 (237) (SC). (The
provisions of Special Act would prevail.); Re, Sivakumar, 1989 Mad LW (Crl) 65 .
334 Ram Gopal Kedia v State, 1977 Cr LJ 1048 (Cal-DB).
335 Subramaniam v State, 1988 Mad LW (Crl) 326 , 332 : 1988 (3) Crimes 633 .
336 Devaky v State of Kerala, 1986 (2) Crimes 208 (Ker).
337 Hardeep Singh v State of Punjab, AIR 2014 SC 1400 : (2014) 3 SCC 92 : 2014 Cr LJ 1118 (SC) [Five-Judge Constitution Bench].
338 Lt Col Sharma v UOI, 1990 Mad LW (Crl) 104 .
339 Chandrama Singh v State of Assam, 1988 (2) Crimes 465 , 468 (Gau) (Cal).
340 S Mohan v State of Rajasthan, 2008 Cr LJ 4382 (4384) (Raj).
341 Achinta Kumar Saha v State, 1992 Cr LJ 3 , 5 (Cal-DB).
342 Iswarappa Magundappa v State of Karnataka, 1987 (3) Crimes 876 (Kant) : ILR 1987 Kant 676 .
343 State of MP v Rameshwar Rathod, (1990) 4 SCC 21 : 1990 Cr LJ 1756 : 1991 (1) Crimes 222 , 224 (SC).
344 Asmita Agarwal v Enforcement Directorate, (2002) 95 DLT 468 : (2002) 61 DRJ 339 : 2002 Cr LJ 819 (823) (Del-DB).

345 VK Puri v Central Bureau of Investigation, 2007 Cr LJ 2929 (2931) (SC).
346 VK Puri v Central Bureau of Investigation, 2007 Cr LJ 2929 (2933) (SC).
347 Central Bureau of Investigation, New Delhi v Juhie Singh, 2008 Cr LJ 2186 (2188, 2189) (All).
348 Satish Mishra v State of Bihar, 2007 Cr LJ (NOC) 190 (Pat).
349 Murlidhar Dullabhdas Wani v State of Maharashtra, 1978 Cr LJ 70 (Bom-DB) : 1978 MhLJ 149 .
350 Senior Intelligence Officer DRI v MKS. Abubucker, 1990 Cr LJ 704 (Mad).
351 Deepak Mahajan v Director of Enforcement, 1991 Cr LJ 1124 , 1142 (Del-FB).
352 Lajpat Rai Sehgal v State, 1983 Cr LJ 888 (Del) : 23 (1983) DLT 314 .
354 K Subramaniam v State, 1988 (3) Crimes 633 , 636 (Mad).
355 S Ramachandra Reddy v PN Ravindra Reddy, 1991 Cr LJ 1619 , 1623 (AP).
356 H Mohan v State of Karnataka, 1991 Cr LJ 1866 (Kant) : (1992) 73 Comp Cas 560 (Kar); Kamakhya Mahanta v State of
Meghalaya, 2008 Cr LJ 3650 (3655) (Gauh).
357 Kamakhya Mahanta v State of Meghalaya, 2008 Cr LJ 3650 (3655) (Gauh).
358 Kershi Pirozsha Bhagvagar v State of Gujarat, 2007 Cr LJ 3958 (3962, 3963) (Guj-DB).
359 Supdt Customs, C IU Cochin v PK Ummerkutty, 1983 Cr LJ 1860 (Ker).
360 Nagesh v State of Karnataka, 1990 Cr LJ 2234 : 1990 (2) Crimes 513 (Kant).
361 Narcotics Control Bureau v Kishan Lal, AIR 1991 SC 558 : (1991) 1 SCC 705 : 1991 Cr LJ 654 , 657 (SC).
362 Major GS Sodhi v UOI, AIR 1991 SC 1617 : (1991) 2 SCC 382 : 1991 Cr LJ 1947 , 1950 (SC).
363 Raj Bahadur v State of UP, 1991 Cr LJ 2239 , 2241 (All).

364 State of HP v Sudarshan Kumar Kala, 1989 (3) Crimes 608 , 611 (HP-DB) : 1989 (1) CLR 240 (5).
365 Rajesh Singh v State of UP, 2002 All LJ 922 : (2002) 1 EFR 556 : 2002 Cr LJ 2680 (2682) (All).
366 Phasalu v State of Kerala, 1992 (1) Crimes 300 , 302 (Ker).
367 Sharvan Kumar v State of Rajasthan, 2012 Cr LJ 1480 (Raj) (Jaipur Bench) : 2012 (1) ILR (Raj) 531. [Gangula Ashok v State of
AP, AIR 2000 SC 740 : 2000 Cr LJ 819 (SC); India Carat Ltd v State of Karnataka, AIR 1989 SC 885 : (1989) 2 SCC 132 : 1989
Cr LJ 963 (SC); Supreme Court Legal Aid Committee v UOI, 1994 (4) Scale 452 ( 1994) 6 SCC 731 -Rel. on].
368 Repealed by Juvenile Justice (Care and Protection of Children) Act, 2000 (56 of 2000).
369 Daljit Singh v State of Punjab, 1992 (1) Crimes 143 , 147 : 1992 Cr LJ 1051 (P&H).
370 Jomon v State of Kerala, 1987 (2) Crimes 920 , 924 (Ker) : 1987 (2) Ker LT SN 37 ; Sukhdev Singh v Hon’ble C J S Teja Singh,
AIR 1954 SC 186 : 1954 Cr LJ 460 (SC).
371 Ram Prakash v Banwari Lal, 1988 (1) Crimes 876 (All).
372 Akhilesh Kumar Singh v State of UP, 1991 (1) Crimes 185 , 191 (All).
373 Gangula Ashok v State of AP, AIR 2000 SC 740 : 2000 Cr LJ 819 : (2000) 2 SCC 504 : (2000) 1 Crimes 196 (SC); Vidyadharan v
State of Kerala, 2004 Cr LJ 605 : (2004) 1 SCC 215 : AIR 2004 SC 536 : (2004) 1 KLJ 105 ; Moly v State of Kerala, 2004 Cr LJ
1812 (1814) : AIR 2004 SC 1890 : (2004) 4 SCC 584 : (2004) 2 Crimes 341 (SC).
374 Vishwa Mitter v OP Poddar, AIR 1984 SC 5 : 1984 Cr LJ 1 (4) : (1983) 2 Crimes 834 : (1983) 4 SCC 701 .
375 Mahendra Kumar Jain v State of UP, 1986 (2) Crimes 121 , 123 (All) : 1986 All LJ 719.
376 AR Antulay v RS Nayak, AIR 1984 SC 718 : (1984) 2 SCC 500 : 1984 Cr LJ 647 (664).
377 Nirmal Singh Kahlon v State of Punjab, 2008 Cr LJ 4096 (4103) (P&H); see also Prakash Singh Badal v State of Punjab, AIR 2007
SC 1274 : 2007 (1) SCC (1).
End of Document

[s 5] Saving.-
[s 5] Saving.-
Nothing contained in this Code shall, in the absence of a specific provision to the contrary,
affect any special or local law for the time being in force, or any special jurisdiction or power
conferred, or any special form of procedure prescribed, by any other law for the time being in
force.
Ordinarily, the Code will not affect (i) any special law (see section 41, Penal Code); (ii) any local law
(see section 42, Penal Code); (iii) any special jurisdiction or power, and (iv) any special form of
procedure.
[s 5.2] “In the absence of any specific provision to the contrary”.—
These words mean a specific provision that the Code is to override the special law.378 The Calcutta
High Court has held that these words mean and contemplate a provision specifically withdrawing the
saving provision relating to the special or local law. This specific provision to the contrary need not be
in the Code itself, but may also be in a special or local law. These words do not refer to any possible
contradiction between a specific provision in the Code and a provision in a special statute. In order
that one provision can be said to be a specific provision to the contrary to another, the former must
completely cover the field of operation of the latter and must altogether nullify it.379 The Allahabad
High Court has held that “a specific provision to the contrary” means that the particular provision of
the Code must, in order to affect the special law, clearly indicate, in itself and not merely by
implication to be drawn from the statute generally, that the special law in question is to be affected,
without necessarily referring in express terms to that special law or the effect on it intended to be
produced.380 Where Special Law envisages special procedure for manner or place of investigation, the
provisions thereof must prevail and no provisions of the Code can apply.381 The special law prevails
over the general law.382 The principle in maxim Generalia Specialibus Non Derogant ie special
provision must prevail over general has been approved by the Supreme Court.383
Where a statute specifies a particular mode of enforcing a new obligation created by it, such an
Mmaneesh Bajpai
[s 5] Saving.-
obligation can, as a general rule, be enforced in no other manner than that provided by the statute.384
The procedure prescribed in the Official Secrets Act, 1923, for holding trial in camera will apply in
supersession of the provisions of the Code.385 Similarly, the Customs Act, 1962, is a special Act which
confers special powers on the Customs Officer to confiscate goods and also prescribes a special form
of procedure therefor. Therefore, those provisions of the Customs Act prevail over the provisions of
the Code.386 Even when there is a specific provision as in section 4(1) of the Official Secrets Act,
1923, stating that the special procedure provided therein would not be invalid as being inconsistent
with the provisions of the Code. Where an enactment provides a special procedure only for some
matters, its provisions must apply in regard to those matters only and the provisions of the Code will
apply to the matters on which the special law is silent.387 Where a vehicle carrying sand is confiscated
under the Kerala Protection of River Banks and Regulation of Removal of Sand Act, the Act being a
special Act 2001, the special procedure laid down under the Act and not the provisions of section 102
Code of Criminal Procedure, 1973 would be followed in view of the provisions of sections 4 and 5 of
Code of Criminal Procedure, 1973.388
The Code of Criminal Procedure is not a special law in terms of section 29(2) of the Limitation Act so
as to exclude the application of the Limitation Act, 1963.389
The scheme of section 50 of the Wild Life Act makes it abundantly clear that Police Officer is also
empowered to investigate the offences and search and seize the offending articles. For trial of
offences, Code of Criminal Procedure is required to be followed and for that there is no other specific
provision to the contrary. Special procedure prescribed is limited for taking cognizance of the offence
as well as powers are given to other officers mentioned in section 50 for inspection, arrest, search and
seizure as well of recording statement. The power to compound offences is also conferred under
section 54. Section 51 provides for penalties, which would indicate that certain offences are
cognizable offences meaning thereby police officer can arrest a person without warrant. Sub-section
(5) of section 51 provides that nothing contained in section 360 of the Code of Criminal Procedure or
in the Probation of Offenders Act 1958 shall apply to a person convicted of an offence with respect to
hunting in a sanctuary or a national park or of an offence against any provisions of chapter 5-A unless
such person is under 18 years of age. The aforesaid specific provisions are contrary to the provisions
contained in Code of Criminal Procedure and that would prevail during the trial. However, from this,
it cannot be said that operation of rest of the provisions of the Code of Criminal Procedure are
excluded.390
The Haryana Children Act, 1974 which was in force when the new Code was enacted, is fully
protected by the provisions of this section.391
The short-sentencing measures and remission schemes promulgated by various States are not saved by

[s 5] Saving.-
section 5 as special/local laws, section 433-A is not overridden by them.392 Section 433-A applies in
preference to any special or local law because section 5 expressly declares that specific provisions, if
any, to the contrary will prevail over any special or local law.393
[s 5.3] Trial before Court-Martial.—
The Courts-martial are bound to follow the provisions of the general law of evidence. However, the
provisions of Code as such are not applicable.394
[s 5.4] Effect of Special Law.—
A person convicted under Navy Act is not entitled to claim set off under section 428 since this section
is not applicable to Navy Act where a special form of procedure is prescribed.395
The Criminal Procedure Code is a procedural enactment and is general enactment made under List III
of VII Schedule of the constitution. The Prevention of Corruption Act, 1988 combines in itself both
procedural as well as substantive law. It is an adjective statute and a special statute when read in
juxtaposition with the Criminal Procedure Code. Both are Central enactments and by virtue of Article
246 of the constitution, both operate throughout the territory of India. The Karnataka Lokayukta Act is
a State enactment and is general enactment whose operation cannot be curtailed by another general
enactment such as the PC Act which in a Central law, particularly having regard to section 24(2) of the
Karnataka Lokayukta Act. There is no repugnancy between the provisions of the Code of Criminal
Procedure, 1973 as well as the provisions of the Karnataka Lokayukta Act as both are general
enactments and operate in distinct fields. Thus, in view of sub-section (2) of section 24, the remedies
available to a complainant under the provisions of the Karnataka Lokayukta Act are in addition to the
remedies available to a complainant under any other law.396
[s 5.5] “Special jurisdiction”.—
The power of a High Court to institute proceedings for contempt and punish where necessary is a
special jurisdiction which is inherent in all Courts of Record and this section expressly excludes
special jurisdiction from the scope of the Code. Therefore, the High Court can deal with matters of
contempt summarily and adopt its own procedure.397
[s 5.6] SC & ST Act—Special Court.—
See commentary under section 4 ante.
378 Emperor v Biram Sardar, (1940) 43 Bom LR 157 : (1941) Bom 333.
379 Naresh Chandra Das v Emperor, AIR 1942 Cal 593 : (1942) 1 Cal 436 .

[s 5] Saving.-
380 Baldeo v Emperor, (1940) All 396 .
381 State (UOI) v Ram Saran, (2003) 12 SCC 578 : AIR 2004 SC 481 : 2004(1) Crimes 232 (237) (SC).
382 State of UP v Karam Singh, 1988 Cr LJ 1434 (All).
383 Motiram Ghela Bhai v Jagan Nagar, AIR 1985 SC 709 : (1985) 2 SCC 279 ; Kamal Singh v State of UP, 1990 Cr LJ 1721 (All).
384 Amar Nath v State, AIR 1975 HP 40 .
385 Ramendra Singh v Mohit Choudhary, 1969 Cr LJ 1361 : AIR 1969 Cal 535 .
386 Officer-in-charge Customs, Berhampore v Minali Biswas, 1982 Cr LJ 1311 (Cal).
387 Frank Dalton Larkins v State (Delhi Administration), 1985 Cr LJ 377 (Del); Mirza Iqbal Hussain, 1983 Cr LJ 154 (SC) : AIR 1983
SC 60 : (1982) 3 SCC 516 .
388 Moosakoya v State of Kerala, 2008 Cr LJ 2388 (2396) (Ker-DB).
389 Ramkrishna Jairam Damdar v Savita, (2002) 2 DMC 270 : (2002) 2 Mah LJ 65 : 2002 Cr LJ 1884 (1887) (Bom).
390 Moti Lal v Central Bureau of Investigation, AIR 2002 SC 1691 : 2002 All LJ 1158 : (2002) 2 Crimes 193 : 2002 Cr LJ 2060
(2064) (SC).
391 Rohtas v State of Haryana, AIR 1979 SC 1839 : (1979) 4 SCC 229 : 1979 Cr LJ 1365 ; Mange v State of UP, 1984 (1) Crimes 497
, 499 (All).
392 Maru Ram v UOI (Ibid, section 433-A), AIR 1980 SC 2147 : (1981) 1 SCC 107 : 1980 Cr LJ 1440 .
393 Maru Ram v UOI, AIR 1980 SC 2147 : (1981) 1 SCC 107 : 1980 Cr LJ 1440 (1455) (para 38).
394 Major GS Sodhi v UOI, AIR 1991 SC 1617 : (1991) 2 SCC 382 : 1991 Cr LJ 1947 , 1950 (SC).
395 Ajmer Singh v UOI, AIR 1987 SC 1646 : 1987 Cr LJ 1877 : (1987) 3 SCC 340 : (1987) 2 Crimes 433 : 1987 SCC (Cri) 499 ; PP
Chandrasekaran v The Govt of India, 1976 LW (Crl) 155 Mad.
396 BS Yeddyurappa v Sirajin Basha, 2014 Cr LJ 1469 (Kar) (DB) : 2014(1) AKR 599.

[s 5] Saving.-
397 Central Talkies Ltd v Dwarka Prasad, AIR 1961 SC 606 : (1961) 1 Cr LJ 740 ; SL Bhasin v Rucy Colabawala, (1973) 76 Bom LR
422 .
End of Document

[s 6] Classes of Criminal Courts.-
Procedure, 21st ed > THE CODE OF CRIMINAL PROCEDURE > CHAPTER II Constitution of Criminal
Courts and Offices
CHAPTER II CONSTITUTION OF CRIMINAL COURTS AND OFFICES
The revised set-up of Criminal Courts and allocation of magisterial functions between the Judicial
Magistrates and the Executive Magistrates are intended to bring about the separation of the Judiciary from
the Executive. As far as possible, the pattern adopted in most States where reform had been implemented
has provided the guideline in this Code.
As a consequence of the separation there are now two categories of Magistrates, namely, the Judicial
Magistrates and the Executive Magistrates, the former being under the control of the High Court and the
latter under the control of the State Government. Broadly speaking, functions which are essentially
judicial in nature are the concern of the Judicial Magistrates, while functions which are “police” or
administrative in nature are the concern of the Executive Magistrates.
So far as the Magistracy is concerned, for performance of magisterial functions allotted to the Executive,
in each district there are—the District Magistrate [section 20(1)]; the Additional District Magistrates
(where necessary) [section 20(2)]; the sub-divisional Magistrates [section 20(4)]; and other Subordinate
Executive Magistrates [section 20]. The State Government may, if it thinks, fit, appoint Special Executive
Magistrates [section 21].
On the judicial side, for each district (other than metropolitan area—see section 8), there will be a Chief
Judicial Magistrate, Additional Chief Judicial Magistrate, sub-divisional Judicial Magistrates and other
Judicial Magistrates [sections 11, 12]. The High Court may, if requested by the Central or the State
Government, appoint “Special Judicial Magistrates” [section 13].
Certain special arrangements, reasons for which are really speaking historical, existed in the presidency-
towns of Madras, Bombay and Calcutta where a special category of Magistrates called the Presidency
Magistrates headed by a Chief Presidency Magistrate discharged magisterial functions mostly of judicial
nature. Some of the functions of the District Magistrate in these areas were discharged by the
Commissioner of Police and others by the Chief Presidency Magistrate. In this Code the system is not
only retained in the above presidency-towns and the city of Ahmedabad but the State Governments have
been permitted to extend it to other big cities having a population of not less than one million [see section
8]. However, these areas are now known as metropolitan areas. For each such area there will be a Chief
Metropolitan Magistrate, Additional Chief Metropolitan Magistrate and other Metropolitan Magistrates
[sections 16, 17]. The High Court may, if requested by the Central or the State Government, appoint
Special Metropolitan Magistrates also [section 18].
Mmaneesh Bajpai
Besides the High Courts and the Courts constituted under any law, other than this Code, there
shall be, in every State, the following classes of Criminal Courts, namely—
(i) Courts of Session;

(ii) Judicial Magistrates of the first class and, in any metropolitan area, Metropolitan Magistrates;
(iii) Judicial Magistrates of the second class; and
(iv) Executive Magistrates.
Criminal Courts are classified into four groups, but, in reality there are more. The Courts classified
above are: (i) Courts of Session; (ii) Judicial Magistrates of the first class; (iii) Judicial Magistrates of
the second class; (iv) in metropolitan areas Metropolitan Magistrates; and (v) the Executive
Magistrates. Besides these, we have also “Courts constituted under any law, other than this Code” eg
the Courts of Coroners in the presidency-towns constituted by the Coroner’s Act (IV of 1871) and
Courts of Cantonment Magistrates in cantonments, under the Cantonments Act (II of 1924).1 Under
the Indian Constitution the Supreme Court has been empowered to deal with certain criminal matters
(cf. Articles 132, 134 and 136).
The class known as Magistrates of the third class in the Code of 1898 was abolished with the 1973
Code and, in place of Presidency Magistrates, Metropolitan Magistrates function in metropolitan areas
(see section 8).
A Magistrate holding committal proceedings is a court.2 It is necessary that the Criminal Court must
function as a Criminal Court, merely one of the Criminal Courts mentioned in section 6 is not
enough.3 A High Court is not a court of Sessions, nor is a court of Sessions a court of Magistrate.4
A Sessions Judge has power because of his appointment to a particular Sessions Division and not by
virtue of appointment as a Sessions Judge. A Sessions Judge who has ceased to be a Sessions Judge of
one Division and has not been appointed to another Sessions Division does not enjoy power as a
Sessions Judge simpliciter.5
A Court of Special Judge is not a court falling within section 6, and, therefore, cannot be described as
a court of Session.6

A Court of Special Judge is a court of original criminal jurisdiction has all powers except those
specifically excluded.7
The Supreme Court, in the under mentioned case, has laid emphasis on speedy trial, creation of
adequate number of Courts, and setting up of Judicial Officers Academy for training of Judicial
Officers.8
[s 6.2] Nature of functions of Executive Magistrate.—
The functions exercisable by the Executive Magistrate under the Code are not necessarily executive.
They are invested with judicial functions also.9
[s 6.3] Hierarchy.—
The District Magistrate is one of Executive Magistrates and is subordinate to the court of Session.10
1 Now repealed by the Cantonments Act, 2006 (41 of 2006).
2 State v Kulmam, AIR 1966 All 495 .
3 R Subramaniam v Commissioner, AIR 1964 Mad 185 : 1964 Cr LJ 519 .
4 Emperor v Harendra Chandra Chakravarthy, AIR 1925 Cal 384 : 84 Ind. Cas. 929.
5 Re, Patan Ali Khan, AIR 1947 Mad 248 : 48 Cr LJ 81.
6 Dara Singh v Tej Kaur, 2000 Cr LJ 3145 (3148) (P&H).
7 AR Antulay v RS Nayak, AIR 1984 SC 718 : (1984) 2 SCC 500 : 1984 Cr LJ 647 , (664).
8 Sheela Barse v UOI, AIR 1986 SC 1773 : 1986 Cr LJ 1736 : (1741, 1742).
9 Mammoo v State, AIR 1980 Ker 18 , 20 (FB) : 1980 Cr LJ 75 .
10 PV Masand v State, 1970 Cr LJ 399 (Bom).

End of Document

[s 7] Territorial divisions.-
Courts and Offices
Mmaneesh Bajpai
(1) Every State shall be a sessions division or shall consist of sessions divisions; and every
sessions division shall for the purposes of this Code, be a district or consist of districts :
Provided that every metropolitan area shall, for the said purposes, be a separate
sessions division and district.
(2) The State Government may, after consultation with the High Court, alter the limits or
the number of such divisions and districts.
(3) The State Government may, after consultation with the High Court, divide any district
into sub-divisions and may alter the limits or the number of such sub-divisions.
(4) The sessions divisions, districts and sub-divisions existing in a State at the
commencement of this Code, shall be deemed to have been formed under this section.
A sessions division shall not consist of half a district or even one and a half district; it shall consist of
one district or a plurality of districts. The word “district” means a district for purposes of criminal
administration.11 The limits of districts for purposes of criminal jurisdiction may change as a result of
fluctuation in the midstream of a river.12 The proviso to sub-section (1) corresponds to section 7(4) of
the old Code of 1898 and makes provision for the presidency-towns which are now called
metropolitan areas. The power of the State Government to alter the limits or the number of divisions,
districts and sub-divisions is to be exercised in consultation with the High Court.
[s 7.2] Direction to sit and dispose cases at a place.—
Notification of the Andhra Pradesh High Court dated 23 January 1980 directing an Additional
Sessions Judge at Krishna to sit at Vijayawada and dispose of such of those sessions cases and other
criminal matters, as are made over to him by District Judge at Krishna; such notification did not
amount to creating a court of Additional Sessions Judge Vijayawada within the Sessions Division of
Krishna. Therefore, the notification did not contravene this provision and was not ultra vires the
powers of the High Court under section 9(6) read with section 194.13
11 Armugha Solagan v Emperor, (1931) 54 Mad 943 (FB).
12 Narayan Das v Bolta Ram, 1973 Cr LJ 818 (Pat-FB), overruling Ramgobind v Askrit Singh, 1960 Cr LJ 1128 (Pat).
13 G Ranganayakulu v Registrar, AP High Court, 1980 Cr LJ 1162 (AP).

End of Document

[s 8] Metropolitan areas.-
Courts and Offices
Mmaneesh Bajpai
(1) The State Government may, by notification, declare that, as from such date as may be
specified in the notification, any area in the State comprising a city or town whose
population exceeds one million shall be a metropolitan area for the purposes of this
Code.
(2) As from the commencement of this Code, each of the Presidency-towns of Bombay,
Calcutta and Madras and the city of Ahmedabad shall be deemed to be declared under
sub-section (1) to be a metropolitan area.
(3) The State Government may, by notification, extend, reduce or alter the limits of a
metropolitan area but the reduction or alteration shall not be so made as to reduce the
population of such area to less than one million.
(4) Where, after an area has been declared, or deemed to have been declared to be a
metropolitan area, the population of such area falls below one million, such area shall, on
and from such date as the State Government may, by notification, specify in this behalf,
cease to be a metropolitan area; but notwithstanding such cesser, any inquiry, trial or
appeal pending immediately before such cesser before any Court or Magistrate in such
area shall continue to be dealt with under this Code as if such cesser had not taken place.
(5) Where the State Government reduces or alters, under sub-section (3), the limits of any
metropolitan area, such reduction or alteration shall not affect any inquiry, trial or
appeal pending immediately before such reduction or alteration before any Court or
Magistrate, and every such inquiry, trial or appeal shall continue to be dealt with under
this Code as if such reduction or alteration had not taken place.
Explanation .—In this section, the expression “population” means the population as
ascertained at the last preceding census of which the relevant figures have been
published.
This is a new section which lays down that (a) the presidency-towns of Bombay, Calcutta and Madras
and the city of Ahmedabad shall be deemed to be declared as metropolitan areas at the
commencement of this Code, and (b) any area comprising a city or town and having a population
exceeding one million may be declared by the State Government to be a metropolitan area. It is not
obligatory on the State Government to declare such an area as metropolitan area; exercise of power is
discretionary. Similarly, if the population of a metropolitan area falls below one million, it is only on
the issuance of a notification by the Government that such area shall cease to be a metropolitan area.
The State Government has been given power to extend, reduce etc the limits of a metropolitan area but
such extension, reduction etc. should not result in a reduction of the population below one million.
The rest of the section deals with consequences of alteration, modification etc on pending disputes.
“Last preceding census of which relevant figures have been published” in the Explanation has
reference to the census immediately preceding the notification, as population of respective areas will
increase or diminish in each decade.

End of Document

[s 9] Court of Session.-
Courts and Offices
Mmaneesh Bajpai
(1) The State Government shall establish a Court of Session for every sessions division.
(2) Every Court of Session shall be presided over by a Judge, to be appointed by the High
Court.
(3) The High Court may also appoint Additional Sessions Judges and Assistant Sessions
Judges to exercise jurisdiction in a Court of Session.
(4) The Sessions Judge of one sessions division may be appointed by the High Court to be
also an Additional Sessions Judge of another division, and in such case he may sit for the
disposal of cases at such place or places in the other division as the High Court may
direct.
(5) Where the office of the Sessions Judge is vacant, the High Court may make
arrangements for the disposal of any urgent application which is, or may be, made or
pending before such Court of Session by an Additional or Assistant Sessions Judge, or, if
there be no Additional or Assistant Sessions Judge, by a Chief Judicial Magistrate, in the
sessions division; and every such Judge or Magistrate shall have jurisdiction to deal with
any such application.
(6) The Court of Session shall ordinarily hold its sitting at such place or places as the High
Court may, by notification, specify; but, if, in any particular case, the Court of Session is
of opinion that it will tend to the general convenience of the parties and witnesses to hold
its sittings at any other place in the sessions division, it may, with the consent of the
prosecution and the accused, sit at that place for the disposal of the case or the
examination of any witness or witnesses therein.
Explanation .—For the purposes of this Code, “appointment” does not include the
first appointment, posting or promotion of a person by the Government to any
Service, or post in connection with the affairs of the Union or of a State, where under
any law, such appointment, posting or promotion is required to be made by
Government.
Orissa.—The following amendments were made by Orissa Act 6 of 2004.
Section 9.—In its application to the State of Orissa, in section 9, to sub-section (3), add the
following proviso, namely:—
Provided that notwithstanding anything to the contrary contained in this Code, an

Additional Sessions Judge in a district or sub-division, other than the district or sub-
division, by whatever name called, wherein the headquarters of the Sessions Judge are
situated, exercising jurisdiction in a Court of Session shall have all the powers of the
Sessions Judge under this Code, in respect of the cases and the proceedings in the Criminal

Courts in that district or sub-division for the purposes of sub-section (7) of section 116,
sections 193 and 194, clause (a) of section 209 and sections 409 and 449:
Provided further that the above powers shall not be in derogation of the powers otherwise
exercisable by an Additional Sessions Judge or a Sessions Judge under this Code.—Orissa
Act 6 of 2004, section 2.
Uttar Pradesh.—The following amendments were made by UP Act 1 of 1984, section 2

(w.e.f. 1 May 1984).
Section 9(5-A).—In its application to Uttar Pradesh in section 9 after sub-section (5),
insert the following sub-section:—
(5-A) In the event of the death, resignation, removal or transfer of the Sessions Judge, or
of his being incapacitated by illness or otherwise for the performance of his duties, or of
his absence from the place at which his Court is held, the senior-most among the
Additional Sessions Judges and the Assistant Sessions Judges present at the place, and in
their absence the Chief Judicial Magistrate shall without relinquishing his ordinary duties
assume charge of the office of the Sessions Judge and continue in charge thereof until the
office is resumed by the Sessions Judge or assumed by an officer appointed thereto, and
shall subject to the provision of this Code and any rules made by the High Court in this
behalf, exercise any of the powers of the Sessions Judge.
The following amendments were made by UP Act 16 of 1976, section 2 (w.e.f. 28

November 1975).
Section 9(6).—In section 9 in sub-section (6) insert following proviso:—
Provided that the Court of Session may hold, or the High Court may direct the Court of
Session to hold its sitting in any particular case at any place in the sessions division, where
it appears expedient to do so for considerations of internal security or public order, and in
such cases, the consent of the prosecution and the accused shall not be necessary.
West Bengal.— The following amendments were made by WB Act No. 24 of 1988, section
3.
Section 9(3).—In sub-section (3) of section 9 of the principal Act, the following proviso
shall be added:—
Provided that notwithstanding anything to the contrary contained in this Code, an

Additional Sessions Judge in a sub-division, other than the sub-division, by whatever name
called, wherein the headquarters of the Sessions Judge are situated, exercising jurisdiction
in a Court of Session, shall have all the powers of the Sessions Judge under this Code, in
respect of the cases and proceedings in the Criminal Courts in that sub-division, for the

purposes of sub-section (7) of section 116, sections 193 and 194, Clause (a) of section 209
and sections 409, 439 and 449:
Provided further that the above powers shall not be in derogation of the powers otherwise
exercisable by an Additional Sessions Judge or a Sessions Judge under this Code.
[s 9.2] Legislative changes in section 9.—
The section corresponds to section 9 of the Code of 1898 with this difference that except for the power
to establish Court of Session for every Sessions Division which is vested in the State Government, the
power of appointment of Sessions Judge, Additional Sessions Judge and Assistant Sessions Judge, the
power of appointing Sessions Judge of one Sessions Division as Additional Sessions Judge of another
division, the power to make arrangement for disposal of urgent applications before a court of Session
when the office of the Sessions Judge is vacant and the power to notify places where Courts of Session
will ordinarily hold their sittings are all vested in the High Court. The Explanation is added in the
present Code to set at rest the controversy raised in State of Assam v Ranga Muhamhad.14 Sub-section
(2) confers on the High Court the power of appointment of Sessions Judge whereas the Explanation
clarifies that the power does not extend to the making of first appointment to the cadre which under
Article 233 of the Constitution vests in the Governor.
[s 9.3] Scope and application of section 9.—
Judgments pronounced by a Sessions Judge cannot be challenged on the ground that his appointment
was subsequently held invalid as having been in violation of Article 233 of the Constitution.15 A
Sessions Judge includes an Additional Sessions Judge. An Additional Sessions Judge is competent to
deal with the trial of juvenile offenders.16 The term Sessions Judges includes an Additional Sessions
Judge/Assistant Sessions Judge, after the rejection of bail application by Additional Sessions
Judge/Assistant Sessions Judge in a case pending before him, bail petition does not lie before the
Sessions Judge.17
The status, powers and jurisdiction of a Sessions Court when it is constituted as Special Judge under
Scheduled Castes and Tribes (Prevention of Atrocities) Act, 1989, is not affected, which it enjoys and
exercises under Criminal Procedure Code by virtue of section 9, Code of Criminal Procedure, 1973.
It can hear appeals against conviction recorded under other Acts.18
The Sessions Judges do not have inherent powers which is conferred on the High Court under section
482 Code of Criminal Procedure, 1973.19
The defective appointment of a Sessions Judge cannot be challenged in collateral proceedings.20
Even a place inside the jail is a place within the meaning of section 9(6), Code of Criminal Procedure,

1973.21
When the court of Sessions is designated as Special Court under Scheduled Castes and Scheduled
Tribes (Prevention of Atrocities) Act, 1989, ordinarily the court of Sessions should himself try the
cases under the Act.22
The words “Court of Session” used herein mean the court of Session presided over by the Sessions
Judge and does not include any Court presided over by either an Additional Sessions Judge or an
Assistant Sessions Judge.23
An Additional Sessions Judge or an Assistant Sessions Judge cannot have direct correspondence with
the High Court about his judicial functions unless otherwise called for.24
[s 9.4] Powers of Civil Judge/CJM.—
There is no provision in the Code under which a Civil Judge can be invested with powers of an
Additional Sessions Judge. Where, therefore, a person appointed as a Civil Judge is also intended to
work as an Additional Sessions Judge, an appointment has to be made under section 9 as an
Additional Sessions Judge. When such a Civil Judge exercises the power of an Additional Sessions
Judge he does so not because he is a Civil Judge but because of his being appointed as an Additional
Sessions Judge under section 9.25 Where no order appointing a Civil Judge/CJM as a Sessions Judge
has been made by the High Court, the order passed by such Civil Judge/CJM as incharge Sessions
Judge deciding bail application is without jurisdiction and is liable to be set aside.26
[s 9.5] Power of High Court to notify.—
The High Court may notify and direct the Sessions Judge to hold his sitting in a place other than his
ordinary place of sitting.27 The High Court has power to notify Tihar Jail as a place for holding sittings
of Sessions Court in addition to Tis Hazari and New Delhi where the Sessions Court could hold its
sittings.28
14 State of Assam v Ranga Muhamhad, AIR 1967 SC 903 : (1967) 1 SCR 454 .
15 Gokaraju Rangaraju v State of AP, AIR 1981 SC 1473 : 1981 Cr LJ 876 .
16 Abdul Mannan v State of WB, AIR 1996 SC 905 (906) : 1996 AIR SCW 297 : 1996 (1) SCC 665 ; Ashok Kumar Yadav v UOI,
2007 Cr LJ (NOC) 133 : 2007 (1) ALJ 618 (All).

17 State of Rajasthan v Fakir Mohd, 2000 Cr LJ 4289 (Raj-DB) : 1987 Cr LJ 411 (Raj) overruled; Ashok Kumar Yadav v UOI, 2007
Cr LJ (NOC) 133 : 2007 (1) ALJ 618 (All).
18 Hanuman Singh v UOI, 1997 Cr LJ 1054 (1058, 1059) (Raj).
19 Bhupendra Kumar v State of Rajasthan, 1996 Cr LJ 3180 (3181) (Raj) : 1996 (1) WLN 167 .
20 Gokaraju Rangaraju v State of AP, AIR 1981 SC 1473 : (1981) 3 SCC 132 : 1981 Cr LJ 876 (882, 883).
21 Birendra Kumar Rai v UOI, 1992 Cr LJ 3866 (3881) (All-FB); Kehar Singh v State (Delhi Administration), AIR 1988 SC 1883 :
(1988) 3 SCC 609 : 1989 Cr LJ 1 .
22 Babaldas Becharbhai v State of Gujarat, 1993 (2) Crimes 403 (Guj) : 1993 (1) GLR 317 .
23 Superintendent and Remembrancer of Legal Affairs, West Bengal v Mansur Ali, 1978 Cr LJ 1497 , 1501 (Cal-DB); Subrata Pal v
Ratna Gupe, 2002 (4) Crimes 499 (500) (Gauh); Bhuban Chandra Sharma v State of Meghalaya, (2007) 4 GLR 534 : 2007 Cr LJ
3315 (Gauh); Sidheshwar Yadav v State of Bihar, 2005 (2) East Cri C 236 (Pat).
24 Subrata Pal v Ratna Gupe, 2002(4) Crimes 499 (500) (Gauh) : 2003 (1) Andh LT (Cr) 14 .
25 Prem Nath v State of Rajasthan, AIR 1967 SC 1599 : 1967 Cr LJ 1569 ; State of Karnataka v Channabasappa, 1992 Cr LJ 95 :
1991 (2) Crimes 681 , 683 (Kant).
26 State of Karnataka v Channabasappa, 1991 (2) Crimes 681 (683) : 1992 Cr LJ 95 (Kant).
27 Ranjit Singh v Chief Justice, 1986 Cr LJ 632 (Del-DB).
28 Kehar Singh v State (Delhi Admn.), AIR 1988 SC 1883 : (1988) 3 SCC 609 : 1989 Cr LJ 1 , 12; see also Birendra Kumar Rai v
UOI, 1992 Cr LJ 3866 (All-FB).
End of Document

[s 10] Subordination of Assistant Sessions Judges.-
Courts and Offices
Mmaneesh Bajpai
(1) All Assistant Sessions Judges shall be subordinate to the Sessions Judge in whose Court
they exercise jurisdiction.
(2) The Sessions Judges may, from time to time, make rules consistent with this Code, as to
the distribution of business among such Assistant Sessions Judges.
(3) The Sessions Judge may also make provision for the disposal of any urgent application,
in the event of his absence or inability to act, by an Additional or Assistant Sessions
Judge, or, if there be no Additional or Assistant Sessions Judge, by the Chief Judicial
Magistrate, and every such Judge or Magistrate shall be deemed to have jurisdiction to
deal with any such application.
Under the present Code, the Sessions Judge, may confer jurisdiction on Chief Judicial Magistrate also
for disposal of urgent applications in the absence of the Additional or Assistant Sessions Judge which
jurisdiction under the corresponding section 17(4) of the old Code, could be exercised by the District
Magistrate.
After separation of judiciary from the executive, the jurisdiction of the Judicial Magistrate to hear
revision petitions against the orders of Executive Magistrate have not been taken away by GO 8690/II-
C-554/1961 dated 29 September 1967.29 While, ordinarily, the expression “Court of Session” would
include not only the Sessions Judge, but also Additional or Assistant Judge, the expression Sessions
Judge, unless the context, otherwise, requires, cannot be treated to include an Additional or Assistant
Sessions Judge.30
A notification issued under section 10(1) need not specify that it is made under section 10. An order of
the State Government, that a certain person was being appointed as District Magistrate of the District,
was held sufficient.31
[s 10.3] “Make provision for the disposal of any urgent application”.—
Issuance of general order should be made permissible. The underlying idea is that urgent applications
should be disposed of quickly and any working method employed by the Sessions Judge to achieve the
purpose of the provisions must be upheld.32
“Inability to act” has a very wide connotation and includes inability arising on account of various
reasons such as rush of work-judicial as well as administrative work, is not confined to physical
disability or incapacity. It is to be decided by the Sessions Judge, this power of the Sessions Judge
cannot be usurped by the High Court.33

Where the Sessions Judge delegates power to the CJM to dispose of bail applications in his absence,
that power is no more available after the Sessions Judge ceases to hold office.34
[s 10.4] Assignment of work to Additional Judges.—
The Sessions Judge can assign urgent application for disposal to Additional Sessions Judge not only
when physically handicapped of acting but also when otherwise unable to act due to pressure of
work.35
The assignment of urgent applications to Additional Sessions Judge without mentioning reasons does
not vitiate the assignment.36
Appeal under section 61A of the Forest Act, (As added in Maharashtra) against the order of
confiscation of vehicle carrying forest produce without permit, cannot be transferred by Sessions
Judge to an Additional Sessions Judge as appellate powers on the Sessions Judge have been conferred
as persona designata.37
29 Briji Behari Das v State of UP, 1976 Cr LJ 1407 (All).
30 Bhuban Chandra Sharma v State of Meghalaya, 2007 Cr LJ 3315 (3327) : (2007) 4 GLR 534 (Gauh).
31 Ajaib Singh v Gurbachan Singh, AIR 1965 SC 1619 : 1965 (2) Cr LJ 533 : (1965) 2 SCR 845 .
32 Sesh Narayan Bajpai v State of MP, 1990 Cr LJ 1486 , 1489 (MP-DB).
33 Paramjeet v State, 1997 Cr LJ 522 (528, 529) (Del-DB) : 64 (1996) DLT 22 .
34 Union Territory of Dadra v Fatehsingh, 1997 Cr LJ 1976 (Bom) : (1996) 2 Mah LJ 492 (Ref).
35 TV Sarma v Achuthuni Nagakoteswararao, 1977 Cr LJ 19 (AP).
36 TV Sarma v Achuthuni Nagakoteswararao, 1977 Cr LJ 19 (AP).
37 Pandurang Laxman Naik v State of Goa., 2006 (NOC) 60 : 2006 (1) AIR Bom R 497 (Bom).

End of Document

[s 11] Courts of Judicial Magistrates.-
Courts and Offices
Mmaneesh Bajpai
(1) In every district (not being a metropolitan area), there shall be established as many
Courts of Judicial Magistrates of the first class and of the second class, and at such
places, as the State Government may, after consultation with the High Court, by
notification, specify:
38[ Provided that the State Government may, after consultation with the High Court,
establish, for any local area, one or more Special Courts of Judicial Magistrates of
the first class or of the second class to try any particular case or particular class of
cases, and where any such Special Court is established, no other Court of Magistrate
in the local area shall have jurisdiction to try any case or class of cases for the trial of
which such Special Court of Judicial Magistrate has been established.]
(2) The presiding officers of such Courts shall be appointed by the High Court.
(3) The High Court may, whenever it appears to it to be expedient or necessary, confer the
powers of a Judicial Magistrate of the first class or of the second class on any member of
the Judicial Service of the State, functioning as a Judge in a Civil Court.
Andaman and Nicobar Islands, Dadra and Nagar Haveli and Lakshadweep.— The
following amendments were made by Regn. 1 of 1974 (w.e.f. 30 March 1974).
Section 11(3).—In its application to the Union territories to which this Regulation extends,
in sub-section (3) shall be substituted—for the words “any member of the Judicial Service
of the State, functioning as a Judge in a Civil Court”, the words “any person discharging
the functions of a Civil Court.
Bihar.— The following amendments were made by Bihar Act 8 of 1977, section 2.
Section 11(4).—After sub-section (3) of section 11 insert the following sub-section and
shall be deemed always to have been inserted:—
(4) The State Government may likewise establish for any local area one or more Courts of
Judicial Magistrate of the first class or second class to try any particular cases or particular
classes or categories of cases.
Haryana.— The following amendments were made by Haryana Act 16 of 1976, section 2
(w.e.f. 24 February 1976).
Section 11(1A).—After sub-section (1) of section 11 insert following sub-section and shall
always be deemed to have been inserted:—

(1A) The State Government may likewise establish as many Courts of Judicial Magistrates
of the first class and of the second class in respect to particular cases or to particular class
or classes of cases, or to cases generally in any local area.
[Refer also provisions on validation given with Haryana State amendment under section
13.]
Kerala.— The following amendments were made by Kerala Act 21 of 1987.
In section 11, after sub-section (1), the following sub-section shall be inserted namely:—
(1A) The State Government may likewise establish as many special courts of Judicial
Magistrates of First Class in respect to particular cases or to a particular class or particular
classes of cases or in regard to cases generally, in any local area.
(2) The amendments made by sub-section (1) shall be, and shall be deemed to have been,
in force for the period commencing from the 2nd day of December, 1974 and ending with
the 18th day of December, 1978.
Validation.—Any notification issued by the State Government on or after the 2nd day of
December, 1974 and before the commencement of the Code of Criminal Procedure
(Amendment) Act, 1978 (Central Act 45 of 1978) purporting to establish any special Court
of the Judicial Magistrate of the first class having jurisdiction over more than one district
shall be deemed to have been issued under section 11 of the said code as amended by this
Act and accordingly such notification issued and any act or proceeding done or taken or
purporting to have been done or taken by virtue of it shall be deemed to be and always to
have been valid.”—Kerala Act 21 of 1987, section 2.
Punjab.— The following amendments were made by Punjab Act No. 9 of 1978 (w.e.f. 14
April 1978).
Section 11(1).—In section 11 after sub-section (1) insert the following sub-section and
shall always be deemed to have been inserted:—
of the first class in respect to particular cases or to particular classes of cases or in regard
to cases generally, in any local area.
Rajasthan.— The following amendments were made by Rajasthan Act No. 10 of 1977,
section 2 (w.e.f. 3 March 1977).
Section 11(1).—After sub-section (1) of section 11 insert following new sub-section:—

of the first class and of the second class in respect to particular cases, or to a particular
class or particular classes of cases, or in regard to cases generally, in any local area.
Uttar Pradesh.— The following amendments were made by UP Act No. 16 of 1976,
section 3.
Section 11(1-A).—After sub-section (1) of section 11 insert following sub-section and be

deemed always to have been inserted:—
of the first class and of the second class in respect to particular cases, or to a particular
class or particular classes of cases, or in regard to cases generally, in any local area.
[Refer also provision on validation given along with UP Amendment under section 13].
The conferment of powers of a Judicial Magistrate by the High Court on a member of the Judicial
Service of the State, working as a Judge in a Civil Court under sub-section (3) is dependent on
necessity or expediency, eg where it may not be necessary to have a full-time Magistrate.
[s 11.3] Special Courts.—
Special Courts can be created not only for a District alone but exercising jurisdiction over whole or
part of the State. Such courts are to be created in respect of particular class or classes of cases. Once
such Courts are duly created any other court cannot try such cases in respect of which jurisdiction has
been conferred upon Special Courts.39
Where Special Court has been created for trying economic offences, application for anticipatory bail
lies before the Special Court alone and not before the regular Sessions Court.40 Where the cause of
action had arisen within the jurisdiction of Allahabad High Court, however charge-sheet was filed in
the Special Court Dehradun, which now lies within the territory of Uttranchal High Court established
under Uttar Pradesh Reorganisation Act, 2000, the application for bail does not lie before the
Allahabad High Court.41
[s 11.4] Special Court divests jurisdiction of local Courts.—
The State Government, may consider certain offences to be grave in their nature and species, affecting
the Society adversely, and the provisions cannot be struck as bad simply because a person will have to
cover any long distance for facing the trial instead of facing it in his own district. It is clear that the
jurisdiction of the Special Court so created for any particular cases or to particular classes of cases, is
not limited to any district and extends beyond that and that is why the expression “local area” was
introduced. The Legislature to avoid further controversy, in 1978 made an amendment in the

definition section, that is, in section 2(j) as to lay down that “local area” may include the whole State
or a part of the State as well. Apart from that once it is expressly provided in the proviso to section
11(1) that once Special Court is established no other Courts of Magistrate in the local area shall have
jurisdiction to try any case or class of cases for the trial of which the Courts have been created, makes
the intention of the Legislature very clear that once Special Courts are created other Courts cannot try
such cases meaning thereby that a retrospective effect has to be given.42
The jurisdiction of the Magistrate appointed under section 11 Code of Criminal Procedure, 1973
extends to an area beyond the district in which he ordinarily holds court, and reference to the court of
Session, so far as such Magistrate is concerned, is the “Court of Session” exercising jurisdiction
relating to that district.43
[s 11.5] Jurisdiction of Special Court to try offences under the Penal Code.—
The Special Court (Economic Offences) created by proviso to section 11(1) has jurisdiction to try
offences under the Indian Penal Code which it otherwise possesses under section 26 Code of Criminal
Procedure, 1973.44
[s 11.6] Place of sitting of Judicial Magistrate.—
Sessions Judge cannot shift the place of sitting of a Judicial Magistrate. Only the State Government
has power to change the place of sitting in respect of Judicial Magistrate. Thus, the administrative
order passed by Sessions Judge shifting the place of trial from Civil Court to jail premises, was held to
be without jurisdiction.45
[s 11.7] Trial.—
The word “trial” is not defined in the Code. But the word “enquiry” is defined. The Code of 1872
contained definition for the word “trial”. But the Code of 1882 omitted the definition. The 1898 Code
defined “enquiry” as including every enquiry other than trial, but the latter was not defined. The
present Code, while retaining the definition of the word “enquiry” without substantial change, has
again omitted to define “trial”.46 In E. Co-op D&CM Union v Bank of Bihar,47 the Supreme Court has
observed that the words “tried” and “trial” appears to have no fixed or universal meaning, and hence,
those words must be given the meaning in accordance with the extent in which they are used. In State
v Achutha Panicker,48 the Kerala High Court has held that the word “trial” is used in chapter XXI of
the Code in a very general and wide sense. After referring to different provisions of the Code the
Supreme Court has held in VC Sukla v State,49 that there is no question of starting the trial until charge
is framed. What is the terminal point of trial if its starting point is the framing of charge? All steps
which a Criminal Court adopts subsequent to the framing of charge and until the pronouncement of
judgment can be treated as trial proceedings. The trial envisaged in the proviso to section 11 cannot be
understood differently. Any other interpretation would be to the detriment of the legislative intent in
framing such a proviso. A single Judge of the Allahabad High Court had held in Joti Prasad v State,50
that “a trial must be deemed to have concluded on the date on which judgment is pronounced.” If the
context permits, there is nothing legally objectionable in treating even an appeal as part of the trial.51
[s 11.8] No power to establish common Court for all districts.—

Under this section the Government had no power to establish a common Court of Judicial Magistrate
First Class for all districts in UP Under sub-section (2) the High Court had no power to appoint a
presiding officer of such Court and therefore the notifications issued by the Government and the High
Court are illegal.52
[s 11.9] Exclusion of Metropolitan Magistrate.—
No notification by State Government under this section shall exclude a Metropolitan Magistrate.53
[s 11.10] Powers.—
The power of the Magistrate who is not a Special Magistrate under this section, to take cognizance of
an offence is not affected.54
[s 11.11] Judicial Officer—Visit to Police Station.—
No Judicial Officer should visit a Police Station on his own except in connection with his official and
judicial duties and functions. If it is necessary for a Judicial Officer or a Subordinate Judicial Officer
to visit the Police Station in connection with his official duties, he must do so with prior intimation of
his visit to the District and Sessions Judge.55
[s 11.12] Appeal.—
Where by Notification No. 449, dated 9 January 1975, the High Court of Madhya Pradesh appointed
Judicial Magistrate, First Class in respect of 21 districts, appeals against judgment would lie before the
court of Session.56
[s 11.13] Section 11(A) (As inserted by UP Act 16 of 1976).—
The notification issued by the State Government creating Court of Special Judicial Magistrate at one
place, subsequently by splitting the notification creating another court at another place, was held
valid.57
38 Ins. by the Code of Criminal Procedure (Amendment) Act, 1978 (45 of 1978), section 3.
39 Rajesh Kumar v State of UP, 1983 (1) Crimes 1152 , 1154 (All); see also Moreshwar Savey v State of UP, 2001 All LJ 638 : 2001
Cr LJ 1765 (All); Raghunath Rai v State of UP, 1993 (1) Crimes 1001 (All).
40 Fakhruddin Sharafali Ampanwala v State, 1998 Cr LJ 439 (AP-DB) : 1997 (5) Andh LD 735.
41 Ashwani Dhingra v CBI, 2001 All LJ 152 : 2001 Cr LJ 946 (All).

42 Rajesh Kumar v State of UP, 1983 (1) Crimes 1152 , 1155 (All); Moreshwar Savey v State of UP, 2001 All LJ 638 : 2001 Cr LJ
1765 (All); Raghunath Rai v State of UP, 1993 (1) Crimes 1001 (All).
43 Prafulla Chandra Ghadei v Union Republic of India, 1997 Cr LJ 201 (206) (Ori); 1995 Cr LJ 3394 (Pat) & ILR (1983) Pat 689
dissented from.
44 Dy Chief Controller of Imports & Expots v Roshanlal Agarwal, 2003 Cr LJ 1698 (1699, 1700) : AIR 2003 SC 1900 : (2003) 3
Crimes 43 : (2003) 4 SCC 139 .
45 Haseen Siddiqui v State of UP, 2014 Cr LJ 1207 (Lucknow Bench) : 2014 (2) RCR (Criminal) 226.
46 S Nagarajan v Kolappurathu Khader, 1990 (1) Crimes 544 (Ker) : 1989 (41) ELT 380 (Ker).
47 E Co-op D&CM Union v Bank of Bihar, AIR 1967 SC 389 : (1967) 1 SCR 848 .
48 State v Achutha Panicker, 1975 Ker LT 703 .
49 VC Sukla v State, AIR 1980 SC 962 : 1980 SCC (Supp) 92 : 1980 Cr LJ 690 .
50 Joti Prasad v State, AIR 1951 All 549 : 52 Cr LJ 221.

51 Madhub Chunder Mozumdar v Novodeep Chunder Pandit, ILR (vol XVI) 1889 Cal 121 .
52 TS Bajpai v KK Gangauly, 1976 Cr LJ 514 (All).
53 Bharat Traders v Special Chief Judicial Magistrate, Allahabad, 1988 Cr LJ 1117 (All-DB).
54 Chauthmal v State of Rajasthan, 1982 Cr LJ 1403 (Raj) : 1982 WLN 396 .
55 Delhi Judicial Service Assocn., Tis Hazari Court v State of Gujarat, AIR 1991 SC 2176 : (1991) 4 SCC 406 : 1991 Cr LJ 3086
(3123).
56 State of MP v Kailash Chandra, 1979 Cr LJ 377 (MP-DB).
57 Bhagwan Das Khandelwal v CBI Establishment, New Delhi, 1998 Cr LJ 651 (All).
End of Document

[s 12] Chief Judicial Magistrate and Additional Chief Judicial Magistrate, etc.-
Courts and Offices
Mmaneesh Bajpai
(1) In every district (not being a metropolitan area), the High Court shall appoint a Judicial
Magistrate of the first class to be the Chief Judicial Magistrate.
(2) The High Court may appoint any Judicial Magistrate of the first class to be an
Additional Chief Judicial Magistrate, and such Magistrate shall have all or any of the
powers of a Chief Judicial Magistrate under this Code or under any other law for the
time being in force as the High Court may direct.
(3) (a) The High Court may designate any Judicial Magistrate of the first class in any sub-
division as the Sub-divisional Judicial Magistrate and relieve him of the responsibilities
specified in this section as occasion requires.
(b) Subject to the general control of the Chief Judicial Magistrate, every Sub-
divisional Judicial Magistrate shall also have and exercise, such powers of
supervision and control over the work of the Judicial Magistrates (other than
Additional Chief Judicial Magistrates) in the sub-division as the High Court may, by
general or special order, specify in this behalf.
Nagaland.—The following amendments were made by Notification No. Law 170/74 Leg.
dt. 3 July 1975.
In sub-sections (1), (2) and (3) the words “High Court” shall be substituted by the words
“State Government” wherever it occurs.
Uttar Pradesh.—The following amendments were made by UP Act 1 of 1984, section 3

(w.e.f. 1 May 1984).
Section 12(4).—In section 12 after sub-section (3) insert following sub-section (4):—
(4) Where the Office of the Chief Judicial Magistrate is vacant or he is incapacitated by
illness, absence or otherwise for the performance of his duties, the senior most among the
Additional Chief Judicial Magistrate and other Judicial Magistrates present at the place,
and in their absence the District Magistrate and in his absence the seniormost Executive
Magistrate shall dispose of the urgent work of the Chief Judicial Magistrate.
This section provides for appointment of Chief Judicial Magistrate, Additional Chief Judicial
Magistrate and sub-divisional Judicial Magistrates by the High Court and exercise of powers by them.
The Chief Judicial Magistrate seems to correspond to the District Magistrate on the executive side.

[s 12.3] Power of Additional Chief Judicial Magistrate.—
The Additional Chief Judicial Magistrate would be as competent to try a case summarily under section
16A of the Prevention of Food Adulteration Act, 1954 as the Chief Judicial Magistrate or a Judicial
Magistrate of the first Class.58
Under section 12(2) of the code, the Addl. Chief Judicial Magistrate is conferred the same power as
the Chief Judicial Magistrate. Hence, transfer of a case for inquiry by Addl. Chief Judicial Magistrate
after taking cognizance to transferee Magistrate, is valid.59
58 Basin v State, 1979 Cr LJ 223 (All).
59 Vijay Dhanuka v Najima Mamtaj, 2014 Cr LJ 2295 (SC) : (2014) 14 SCC 638 .
End of Document

[s 13] Special Judicial Magistrates.-
Courts and Offices
Mmaneesh Bajpai
(1) The High Court may, if requested by the Central or State Government so to do, confer
upon any person who holds or has held any post under the Government, all or any of the
powers conferred or conferrable by or under this Code on a Judicial Magistrate 60[of the
first class or of the second class, in respect to particular cases or to particular classes of
cases, in any local area, not being a metropolitan area:]
Provided that no such power shall be conferred on a person unless he possesses such
qualification or experience in relation to legal affairs as the High Court may, by
rules, specify.
(2) Such Magistrates shall be called Special Judicial Magistrates and shall be appointed for
such term, not exceeding one year at a time, as the High Court may, by general or special
order, direct.
61 [(3) The High Court may empower a Special Judicial Magistrate to exercise the powers of
a Metropolitan Magistrate in relation to any metropolitan area outside his local
jurisdiction.]
Andhra Pradesh.—Following Amendments were made by A.P. Act No. 2 of 1992, section
2.
(1) In section 13, in sub-section (2) for the words “not exceeding one year at a time” the words
“not exceeding two years at a time” shall be substituted.
(2) In section 13 sub-section (2) proviso shall be added namely:—
Provided that any person who is holding the office of Special Judicial Magistrate at the
commencement of the Code of Criminal Procedure (Andhra Pradesh Amendment) Act, 1992
and has not completed sixty five years of age shall continue to hold office for a term of two
years from the date of his appointment.
Bihar.— Following amendment made by Bihar Act 8 of 1977, section 3 (w.e.f. 10 January
1977).
In section 13 of the said Code for the words “in any district” the words “in any local area”
shall be substituted and shall be deemed to have been always substituted.
Haryana.— The following amendments were made by Haryana Act No. 16 of 1976, sections 3
and 4 (w.e.f. 24 February 1976).

Section 13.—In section 13 of the principal Act,—
(a) for the words “second class”, the words “first class or second class” shall be substituted
and shall always be deemed to have been substituted;
(b) for the words “in any district” the words “in any local area” shall be substituted and shall
always be deemed to have been substituted.
Validation.—Notwithstanding anything contained in any judgment, decree or order of any

Court, any notification issued by the Government before the commencement of this Act
purporting to establish any Court of Judicial Magistrate having jurisdiction over more than one
district shall be deemed to have been issued under section 11 read with section 13 of the
principal Act as amended by this Act and be deemed to be and always to have been valid.
Himachal Pradesh.— The following amendments were made by Himachal Pradesh Act 40 of
1976, section 2 (w.e.f. 13 November 1976).
Section 13.—In section 13 for the words “in any district” the words “in any local area” shall
be substituted and shall be deemed to have been always substituted.
Punjab.— The following amendments were made by Punjab Act No. 9 of 1978, section 3
(w.e.f. 14 April 1978).
Section 13(1).—In section 13, sub-section (1), for the words “second class”, the words “first
class or second class” and for the words “in any district”, the words “in any local area” shall be
substituted.
Uttar Pradesh.— The following amendments were made by UP Act No. 16 of 1976, sections 4
and 11.
Section 13.—In section 13 for the words “second class” the words “first or second class” shall
be substituted and for words, “in any district” words “in any local area” shall be substituted.
Validation.—Notwithstanding any judgment, decree or order of any Court—
(a) any notification of the State Government issued before Nov. 28, 1975 purporting to
establish any Court of Judicial Magistrates having jurisdiction over more than one district
shall be deemed to have been issued under section 11 read with section 13 of the said Code
as amended by this Act and be deemed to be and always to have been valid.
[s 13.2] Legislative changes in section 13—1978 Amendment.—
By 1978 Amendment (45 of 1978), the words “of the second class, in respect to particular cases or to
particular classes of cases or to cases generally, in any district” appearing in sub-rule (1) have been
substituted by the words “of the first class or of the second class, in respect to particular cases or to

particular classes of cases in any local area”. A new sub-section (3) has also been added.
This section and section 18 should be read together. The criticism levelled against the system of
Honorary Magistracy and the expediency of retaining the system in some other form for disposal of
petty cases with expedition and also in inaccessible localities with sparse population led to the
enactment of these two sections for appointment of Special Judicial Magistrates and Special
Metropolitan Magistrates. On request made by the Central or the State Government, the High Court
may confer (a) upon any person (i) who holds or has held any post under the Government and (ii) who
possesses specified qualifications in relation to legal affairs (b) all or any powers of second class
Judicial Magistrates in respect of particular cases, particular classes of cases or cases generally. The
appointment shall not exceed a period of one year at a time.
Sections 13(1) and 18(1) in so far as they authorised the conferment of powers on Special Judicial
Magistrates or Metropolitan Magistrate were held violative of Article 14 of the Constitution by the
Madras High Court.62
Where the Special Judge Industrial Tribunal had not been conferred the powers of the Judicial
Magistrate First Class by notification of the High Court under section 13 of the Code, the trial of the
accused by the Special Judge was held without jurisdiction, and the conviction recorded by the
Industrial Tribunal/Special Tribunal was set aside.63
[s 13.4] “Who holds or has held any post under the Government.”—
The words “who holds or has held any post under the Government” are not to be construed to confine
appointments to Government servants, present or past only and to exclude members of subordinate
judicial services.64 Sections 13(1) and 18(1) of the Code do not exclude appointment of members of
the subordinate judiciary as Special Judicial Magistrates/Special Metropolitan Magistrates.65 A
Special Judge appointed under the Prevention of Corruption Act, 1988, is not competent to try
offences except those which are punishable under the Act.66
[s 13.5] Special Magistrate for more than one district.—
If section 13 is amended by the local amendment to make this section similar to section 14 of the old
Code by adding “Magistrate First Class” and substituting the word “local area” for the word “in any
district”, there cannot be any difficulty in appointing Special Magistrate of First Class for more than
one District.67
[s 13.6] Constitutionally valid.—
The Special Magistrate has to try the case entirely under the normal procedure and no discrimination
of kind is contemplated. A law vesting discretion in an authority under such circumstances cannot be
said to be discriminatory as such, and is, therefore, not hit by Article 14 of the Constitution.68

60 Subs. by the Code of Criminal Procedure (Amendment) Act, 1978 (45 of 1978), section 4(i).
61 Ins. by the the Code of Criminal Procedure (Amendment) Act, 1978 (45 of 1978), section 4(ii).
62 M Narayanaswamy v State of TN, 1984 Cr LJ 1583 (Mad).
63 Ramcharan Agarwal v Employees State Insurance Corp Hyderabad, 1999 (3) Crimes 149 (AP-DB).
64 Kadra Pahadiya v State of Bihar, AIR 1997 SC 3750 : AIR 1997 SCW 1776 : (1997) 4 SCC 287 : 1997 Cr LJ 2232 .
65 Kadra Pahadiya v State of Bihar, AIR 1997 SC 3750 : AIR 1997 SCW 1776 : 1997 Cr LJ 2232 : 1997 (1) Crimes 289 : (1997) 4
SCC 287 (SC).
66 State of Assam v Keising James, 2007 Cr LJ 897 (901) : 2007 (5) All Ind Cas 988 (Gauh).
67 State of MP v Kailash Chandra, 1979 Cr LJ 377 (MP-DB).
68 MK Gopalan v State of MP, AIR 1954 SC 362 : 1954 Cr LJ 1012 (SC).
End of Document

[s 14] Local jurisdiction of Judicial Magistrates.-
Courts and Offices
Mmaneesh Bajpai
(1) Subject to the control of the High Court, the Chief Judicial Magistrate may, from time to
time, define the local limits of the areas within which the Magistrates appointed under
section 11 or under section 13 may exercise all or any of the powers with which they may
respectively be invested under this Code:
69[ Provided that the Court of a Special Judicial Magistrate may hold its sitting at any
place within the local area for which it is established.]
(2) Except as otherwise provided by such definition, the jurisdiction and powers of every
such Magistrate shall extend throughout the district.
70 [(3) Where the local jurisdiction of a Magistrate, appointed under section 11 or section 13
or section 18, extends to an area beyond the district, or the metropolitan area, as the case
may be, in which he ordinarily holds Court, any reference in this Code to the Court of
Session, Chief Judicial Magistrate or the Chief Metropolitan Magistrate shall, in relation
to such Magistrate, throughout the area within his local jurisdiction, be construed, unless
the context otherwise requires, as a reference to the Court of Session, Chief Judicial
Magistrate, or Chief Metropolitan Magistrate, as the case may be, exercising jurisdiction
in relation to the said district or metropolitan area.]
[s 14.1] STATE AMENDMENT
Maharashtra.— The following amendments were made by Maharashtra Act No. 23 of

1976, section 2 (w.e.f. 9 June 1976).
Section 14-A.—After section 14 of the Code of Criminal Procedure, 1973 (2 of 1974), in

its application to the State of Maharashtra the following section shall be inserted:—
14A. Investing Judicial Magistrates with jurisdiction in specified cases or local

area.—The High Court may invest any Judicial Magistrate with all or any of the powers
conferred or conferrable by or under this Code upon a Judicial Magistrate in respect to
particular cases or to a particular class or classes of cases or in regard to cases generally in
any local area consisting of all or any of the districts specified by it in this behalf.
[s 14.2] Incharge Magistrate.—
An Incharge Magistrate cannot take cognizance of offences arising within the jurisdiction of another
Magistrate having such jurisdiction.71
[s 14.3] “Said district”.—
The expression “said district” denotes obviously the district in which the Judicial Magistrate thus
appointed ordinarily holds the Court.72

[s 14.4] Sub-section (3).—
Where Special Court of Magistrate for trial of mark-list cases was established at place T, the appeal
against conviction lay before the court of Sessions situate at place T within whose jurisdiction the trial
was held by Special Court and not before the Sessions Court situate at place P though a part of cause
of action arose within the jurisdiction of Sessions Court at place P.73
69 Ins. by the Code of Criminal Procedure (Amendment) Act, 1978 (45 of 1978), section 5(a).
70 Ins. by the Code of Criminal Procedure (Amendment) Act, 1978 (45 of 1978), section 5(b).
71 Venkangouda v VP Angadi, 1976 Cr LJ 572 (Kant).
72 Mohd Mahir v State of UP, 1986 (1) Crimes 337 , 339 (All) : 1986 All LJ 346.
73 State v Francis Mannaly, 1999 (2) Ker LT 750 : 2000 (1) Crimes 204 (Ker).
End of Document

[s 15] Subordination of Judicial Magistrates.-
Courts and Offices
Mmaneesh Bajpai
(1) Every Chief Judicial Magistrate shall be subordinate to the Sessions Judge; and every
other Judicial Magistrate shall, subject to the general control of the Sessions Judge, be
subordinate to the Chief Judicial Magistrate.
(2) The Chief Judicial Magistrate may, from time to time, make rules or give special orders,
consistent with this Code, as to the distribution of business among the judicial
Magistrates subordinate to him.
End of Document

Courts and Offices
Mmaneesh Bajpai
Bihar.— The following amendments were made by Bihar Act No. 8 of 1977, section 4 (w.e.f. 10
January 1977).
Section 15(3).—In its application to State of Bihar, after section 15(2), sub-section (3) inserted and
deemed always to have been so inserted:—
(3) Any Judicial Magistrate exercising powers over any local area extending beyond the district in
which he holds his Court, shall be subordinate to the Chief Judicial Magistrate of the said district and
references in this Code to the Sessions Judge shall be deemed to be references to the Sessions Judge of
that district where he holds his Court.
[s 15.2] Distribution of Business.—
There is general subordination of the Judicial Magistrate to the Chief Judicial Magistrate who is also
empowered to make orders as to the distribution of business among the Judicial Magistrates.74
The Chief Judicial Magistrate, from time to time, makes rules or gives special orders consistent with
the Code as to the distribution of business amongst the Judicial Magistrates subordinate to him, he can
transfer a police station from the jurisdiction of one Judicial Magistrate to the jurisdiction of another
Judicial Magistrate.75 An Additional Chief Judicial Magistrate is subordinate to Chief Judicial
Magistrate and as such the latter can transfer a case pending in the court of the former.76 Where a
Chief Judicial Magistrate is also acting as Additional District Judge, but passes order as Chief Judicial
Magistrate he acts as a subordinate to Sessions Judge as provided under section 15 Code of Criminal
Procedure, 1973, hence appeal against his order lies before the Sessions Court.77
74 Prem Narain Singh v Ramraj Singh, 1991 (1) Crimes 4 (All).
75 Prahlad Singh v State of Rajasthan, 2000 Cr LJ 4182 (4183) (Raj) : 2001 (1) WLN 358 .
76 Gautam Kundu v State of WB, 1995 Cr LJ 3376 (Cal-DB).
77 Ponnuswamy v L Guruswamy, 1999 Cr LJ 2353 (2356) (Mad).
End of Document

[s 16] Courts of Metropolitan Magistrates.-
Courts and Offices
Mmaneesh Bajpai
(1) In every metropolitan area, there shall be established as many Courts of Metropolitan
Magistrates, and at such places, as the State Government may, after consultation with
the High Court, by notification, specify.
(2) The presiding officers of such Courts shall be appointed by the High Court.
(3) The jurisdiction and powers of every Metropolitan Magistrate shall extend throughout
the metropolitan area.
Uttar Pradesh.—The following amendments were made by UP Act No. 1 of 1984, section
4 (w.e.f. 1 May 1984).
Section 16(4).—In section 16 after sub-section (3) following sub-section shall be

inserted:—
(4) Where the Office of the Chief Metropolitan Magistrate is vacant or he is incapacitated
by illness, absence or otherwise for the performance of his duties, the senior-most among
the Additional Chief Metropolitan Magistrates and other Metropolitan Magistrates present
at the place, shall dispose of the urgent work of the Chief Metropolitan Magistrate.
The jurisdiction of every Metropolitan Magistrate extends to try an offence committed at any place
within the metropolitan area.78 Allotment of areas in the metropolitan city to different Magistrates is
made for administrative convenience.79 It is the State Government, which can establish a court of
Metropolitan Magistrate after consultation with the High Court. Under section 16(2), the Presiding
Officer of such Court shall be appointed by the High Court.80
The Chief Judicial Magistrate is competent to take cognizance of any offence, committed anywhere in
his district, notwithstanding the fact that the area in which the offence was committed, happens to fall
within the local limits of the area assigned by the Chief Judicial Magistrate to some other Judicial
Magistrate, subordinate to him, in accordance with the provisions of sections 14 and 15, Code of
Criminal Procedure, 1973. Ofcourse taking of such cognizance by the Chief Judicial Magistrate
would be possible only if the complaint or police report, as the case may be, is presented in his court
instead of being presented in the court of the Judicial Magistrate within the local limits of whose
jurisdiction the crime might have been committed.81
[s 16.3] Extent of jurisdiction.—
By virtue of section 484(2)(b) the jurisdiction of the Metropolitan Magistrate in Calcutta extends to
the limits indicated in section 20 of the old Code and it follows that he has jurisdiction to enquire into

an offence committed in the river Hooghly, Calcutta and further he has power to commit the case.82
78 Jethalal v Khimji, (1973) 76 Bom LR 270 .
79 Sevantilal S Shah v State of Gujarat, AIR 1969 Guj 14 : 1969 Cr LJ 63 .
80 Geetha v Arunakumari, 2007 Cr LJ 3290 (3292) : 2007 (2) Mad LJ (Cri) 40 : 2008 (1) Crimes 476 (Mad).
81 Mahesh Chand v Rajasthan, 1985 Cr LJ 301 (Raj-FB).
82 Asoke Chakraborty v State, 1977 Cr LJ 157 (Cal-DB).
End of Document

[s 17] Chief Metropolitan Magistrate and Additional Chief Metropolitan Magistrate.-
Courts and Offices
Mmaneesh Bajpai
(1) The High Court shall in relation to every metro-politan area within its local jurisdiction,
appoint a Metropolitan Magistrate to be the Chief Metropolitan Magistrate for such
metropolitan area.
(2) The High Court may appoint any Metropolitan Magistrate to be an Additional Chief
Metropolitan Magistrate, and such Magistrate shall have all or any of the powers of a
Chief Metropolitan Magistrate under this Code or under any other law for the time
being in force as the High Court may direct.
End of Document

[s 18] Special Metropolitan Magistrates.-
Courts and Offices
Mmaneesh Bajpai
(1) The High Court may, if requested by the Central or State Government so to do, confer
upon any person who holds or has held any post under the Government, all or any of the
powers conferred or conferrable by or under this Code on a Metropolitan Magistrate, in
respect to particular cases or to particular classes of cases, 83[* * *] in any metropolitan
area within its local jurisdiction :
Provided that no such power shall be conferred on a person unless he possesses such
qualification or experience in relation to legal affairs as the High Court may, by
rules, specify.
(2) Such Magistrates shall be called Special Metropolitan Magistrates and shall be
appointed for such term, not exceeding one year at a time, as the High Court may, by
general or special order, direct.
84 [(3) The High Court or the State Government, as the case may be, may empower any
Special Metropolitan Magistrate to exercise, in any local area outside the metropolitan
area, the powers of a Judicial Magistrate of the first class.]
Andhra Pradesh.— Following Amendments were made by AP Act 2 of 1992, section 3.
Section 18(2).—In section 18 in sub-section (2) for the words “not exceeding one year at a
time” the words “not exceeding two years at a time” shall be substituted.
Following proviso was added by AP Act 2 of 1992, section 3.
In section 18 sub-section (2), proviso shall be added, namely:—
Provided that a person who is holding the office of Special Metropolitan Magistrate at the
commencement of the Code of Criminal Procedure (Andhra Pradesh Amendment) Act,
1992, and has not completed sixty-five years of age shall continue to hold office for a term
of two years from the date of his appointment.
Maharashtra.—The following amendments were made by Maharashtra Act No. 23 of

1976, section 3 (w.e.f. 9 June 1976).
Section 18(1).—In section 18 of the said Code, in sub-section (1) for the words “in any
Metropolitan area” the words “in one or more Metropolitan areas” shall be substituted.

See Comment under section 13, ante.
Sections 13(1) and 18(1) of the Code do not exclude appointment of members of the subordinate
judiciary as Special Judicial Magistrates/Special Metropolitan Magistrates.85
[s 18.3] Conferment of powers.—
Sections 13 and 18 insofar as the conferment of powers of Special Judicial Magistrates or Special
Metropolitan Magistrate to any person holding any post under the Government, are violative of Article
14 of the Constitution of India. Therefore, the Tamil Nadu Special Judicial Magistrate and Special
Metropolitan Magistrate Qualification Rules, 1974 and particularly section 13 thereof, are also
invalid.86
A Special Metropolitan Magistrate has all the powers of a Metropolitan Magistrate and the State
Government cannot by Government order curtail his powers.87
83 The words “or to cases generally” omitted by the Code of Criminal Procedure (Amendment) Act, 1978 (45 of 1978), section 6(i).
84 Subs. by the Code of Criminal Procedure (Amendment) Act, 1978 (45 of 1978), section 6(ii).
85 Kadra Pahadiya v State of Bihar, AIR 1997 SC 3750 : (1997) 4 SCC 287 : 1997 Cr LJ 2232 : AIR 1997 SCW 1776 .
86 M Narayanaswamy v State of TN, 1984 Cr LJ 1590 (Mad-DB).
87 Re, Raju, 1975 Cr LJ 1199 (Mad).
End of Document

[s 19] Subordination of Metropolitan Magistrates.-
Courts and Offices
Mmaneesh Bajpai
(1) The Chief Metropolitan Magistrate and every Additional Chief Metropolitan Magistrate
shall be subordinate to the Sessions Judge; and every other Metropolitan Magistrate
shall, subject to the general control of the Sessions Judge, be subordinate to the Chief
Metropolitan Magistrate.
(2) The High Court may, for the purposes of this Code, define the extent of the
subordination, if any, of the Additional Chief Metropolitan Magistrates to the Chief
(3) The Chief Metropolitan Magistrate may, from time to time, make rules or give special
orders, consistent with this Code, as to the distribution of business among the
Metropolitan Magistrates and as to the allocation of business to an Additional Chief
A Chief Metropolitan Magistrate by rule cannot curtail/limit the statutory powers of a Metropolitan
Magistrate.88
The Rules made or the special orders given by the Chief Metropolitan Magistrate as to the distribution
of business among the Metropolitan Magistrate and as to the allocation of business to an Additional
Chief Metropolitan Magistrate shall be consistent with the provisions of the Code of Criminal
Procedure, 1973.89
Section 14 of the Securitization and Reconstruction of Financial Assets and Enforcement of Security
Interest Act, 2002 empowers the Chief Metropolitan Magistrate to accept and decide cases under the
Act. Such power is not conferred upon the Additional Chief Metropolitan Magistrate. Thus, the order
passed by the Chief Metropolitan Magistrate empowering the Additional Chief Metropolitan
Magistrate to exercise such power would be without jurisdiction.90
88 Re, Raju, 1975 Cr LJ 1199 (1200) (Mad).
89 Narendra v State of Gujarat, 1978 Cr LJ 1193 (1198) (Guj) : (1978) GLR 165 .
90 Manjudevi R Somani v UOI, AIR 2013 Guj 242 (DB).
End of Document

[s 20] Executive Magistrates.-
Courts and Offices
Mmaneesh Bajpai
(1) In every district and in every metropolitan area, the State Government may appoint as
many persons as it thinks fit to be Executive Magistrates and shall appoint one of them
to be the District Magistrate.
(2) The State Government may appoint any Executive Magistrate to be an Additional
District Magistrate, and such Magistrate shall have 91[such] of the powers of a District
Magistrate under this Code or under any other law for the time being in force, 92[as may
be directed by the State Government.]
(3) Whenever, in consequence of the office of a District Magistrate becoming vacant, any
officer succeeds temporarily to the executive administration of the district, such officer
shall, pending the orders of the State Government, exercise all the powers and perform
all the duties respectively conferred and imposed by this Code on the District Magistrate.
(4) The State Government may place an Executive Magistrate in charge of a sub-division
and may relieve him of the charge as occasion requires; and the Magistrate so placed in
charge of a sub-division shall be called the Sub-divisional Magistrate.
93 [(4-A) The State Government may, by general or special order and subject to such
control and directions as it may deem fit to impose, delegate its powers under sub-section
(4) to the District Magistrate.]
(5) Nothing in this section shall preclude the State Government from conferring, under any
law for the time being in force, on a Commissioner of Police, all or any of the powers of
an Executive Magistrate in relation to a metropolitan area.
Uttar Pradesh.— The following amendments were made by UP Act 1 of 1984, section 5
(w.e.f. 1 May 1984).
Section 20(6).—In section 20 of the said Code, after sub-section (5) following sub-section
shall be inserted:—
(6) the State Government may delegate its powers under sub-section (4) to the District
Magistrate.
[s 20.2] Legislative changes in section 20—CrPC (Amendment) Act, 2005 (25 of 2005).—
In section 20, after sub-section (4), the following sub-section shall be inserted, namely:—
(4-A) The State Government may, by general or special order and subject to such control and directions as it may deem fit to
impose, delegate its powers under sub-section (4) to the District Magistrate.

Notes on Clauses
The clause seeks to insert sub-section (4-A) in section 20 to enable the State Government to delegate its powers to the District
Magistrates for the purposes of placing the Executive Magistrates incharge of a sub-division. (Notes on Clauses, clause-2)
This amendment in the section has come into force w.e.f. 23 June 2006 vide Notification No. S.O.
923(E), dated 21 June 2006.
[s 20.3] 1978 Amendment.—
The words “all or any” in sub-rule (2) have been substituted by the word “such”, and the words “as
may be directed by the State Government” at the end of sub-rule (2) have been added to remove the
difficulties in the interpretation, which may be felt since the words “as the State Government may
direct”, appearing in the corresponding section in the old Code, 1898 were deleted in the new Code.94
There are five classes of Executive Magistrates: (1) the District Magistrate; (2) the Additional District
Magistrate; (3) the Sub-divisional Magistrate; (4) Executive Magistrates and (5) Special Executive
Magistrates (see section 21). Besides these, in relation to a metropolitan area, the State Government
may confer all or any of the powers of the Executive Magistrate on the Commissioner of Police under
any law for the time being in force. The words, “as many persons” employed in sub-section (1) are
adequately elastic to include the Commissioner of Police. The State Government is not precluded from
appointing the Commissioner of Police in metropolitan area as an Executive Magistrate. Once the
Commissioner of Police is appointed as an Executive Magistrate, he can be appointed as an Additional
District Magistrate, who shall have the powers of the District Magistrate for the purposes of sections
18 and 20 of the Act.95
It is true that this section directs that the State Government shall appoint one of the Executive
Magistrates as District Magistrate in every district, but the section does not say that one officer should
not be appointed District Magistrate for two districts.96
The words “District Magistrate” could not possibly be read as Additional District Magistrate and it is
only by resorting to the notification issued under this section that the Additional District Magistrates

can be said to have been empowered to exercise the powers of the District Magistrates.97
The appointment of certain police officers as Executive Magistrates to deal with sympathisers of left
wing extremist groups was held void for vagueness and was set aside.98
[s 20.5] Power of Additional District Magistrate.—
An Additional District Magistrate who has been appointed under this section enjoys all the powers of
the District Magistrate and he is not subordinate to the District Magistrate when he is exercising
judicial power. The expression “District Magistrate” includes, therefore, an Additional District
Magistrate also who could hear appeals under section 449.99
An Executive Magistrate appointed as Additional District Magistrate can pass orders under section
Where the High Court directed the District Magistrate to dispose of the matter, disposal by the
Additional District Magistrate cannot be said to be in violation of the order of the court in view of
subsection 2.101
Magistrate of the First Class taking charge of the general file during leave absence of the sub-
divisional Magistrate does not act as such Magistrate unless he is placed in charge.102
91 Subs. by the Code of Criminal Procedure (Amendment) Act, 1978 (45 of 1978), section 7(a).
92 Ins. by the Code of Criminal Procedure (Amendment) Act, 1978 (45 of 1978), section 7(b).
93 Ins. by the Code of Criminal Procedure (Amendment) Act, 2005 (25 of 2005), section 2 (w.e.f. 23 June 2006 vide Notification No.
SO 923(E), dated 21 June 2006).
94 SOR Gazette of India, 15 May 1978, Pt II, section 2, Extra, p 667.
95 AN Roy v Suresh Sham Singh, 2006 Cr LJ 3614 (3618, 3619) : AIR 2006 SC 2677 : 2006 AIR SCW 3522 : 2006 (3) Crimes 10 :
2006 (5) SCC 745 .
96 Re, Arumuga Solagan, (1931) 32 Cr LJ 1095 : (1931) Mad 697 (FB).

97 Hari Chand Aggarwal v Batala Engineering Co Ltd, AIR 1969 SC 483 : 1969 Cr LJ 803 , 807 : (1969) 2 SCR 201 .
98 S Bharat Kumar v Chief Election Commissioner of India, 1995 Cr LJ 2608 (AP-DB) : 1995 (1) Andh LT (Cr) 230 .
99 Kishansingh v State of Rajasthan, 1974 Cr LJ 238 (Raj) : 1973 WLN 176 .
100 State of Karnataka v Praveen Bhai Thogadia, 2004 Cr LJ 1825 (1831) (SC) : AIR 2004 SC 2081 : (2004) 4 SCC 684 : (2004) 2
Crimes 107 (SC).
101 Pushpa Rani v Addl Dist Magistrate, AIR 1984 Cal 294 .
102 Subol Mondal v State, 1974 Cr LJ 176 (Cal-DB).
End of Document

[s 21] Special Executive Magistrates.-
Courts and Offices
Mmaneesh Bajpai
The State Government may appoint, for such term as it may think fit, Executive Magistrates, to
be known as Special Executive Magistrates for particular areas or for the performance of
particular functions and confer on such Special Executive Magistrates such of the powers as are
conferrable under this Code on Executive Magistrates, as it may deem fit.
The section confers power on the State Government to appoint Special Executive Magistrates (1) for
particular areas or (2) for the performance of particular functions. It can confer on them such powers
of the Executive Magistrates as it deems fit. Section 21 does not prescribe any qualification for the
appointment of Executive Magistrates. Hence, appointment of regular Taluk Tahsildars, Deputy
Tahsildars, and Special Deputy Tahsildars as Executive Magistrates under section 21 by the
Government was held valid.103
The special Executive Magistrate can exercise any of the powers of the Executive Magistrate
conferred by the Code.104 The power to appoint under Pt I of this section is not dependent upon or
coupled with the power to be conferred under Pt II of the section. The appointment of Special
Executive Magistrate is one thing and conferment of power on them is another. Each is independent of
the other. Pt III of the section, speaks of additional powers to be conferred depending upon the nature
of the particular function to be performed. It has nothing to do with the power located under Pt I of the
section.105
103 State of TN v RGandhi, 1995 Cr LJ 3129 (Mad-DB).
104 State of Maharashtra v Mohammad Salim Khan, 1991 (1) Crimes 120 : 1991 SCC (Cri) 253 : (1991) 1 SCC 550 .
105 State of Maharashtra v Mohammad Salim Khan, 1991 (1) Crimes 120 , 123 : 1991 SCC (Cri) 253 : (1991) 1 SCC 550 .
End of Document

[s 22] Local jurisdiction of Executive Magistrates.-
Courts and Offices
Mmaneesh Bajpai
(1) Subject to the control of the State Government, the District Magistrate may, from time
to time, define the local limits of the areas within which the Executive Magistrates may
exercise all or any of the powers with which they may be invested under this Code.
(2) Except as otherwise provided by such definition, the jurisdiction and powers of every
such Magistrate shall extend throughout the district.
A Magistrate appointed to act as a Magistrate has, unless his powers have been restricted to a certain
local area, jurisdiction over the entire district.106
106 Sarat Chunder Roy v Bipin Chandra Roy, (1902) 29 Cal 389 ; Krishnadas, (1955) Nag 58; Parichan Singh v Heman Singh, AIR
1961 Pat 94 .
End of Document

[s 23] Subordination of Executive Magistrates.-
Courts and Offices
Mmaneesh Bajpai
(1) All Executive Magistrates, other than the Additional District Magistrate, shall be
subordinate to the District Magistrate, and every Executive Magistrate (other than the
Sub-divisional Magistrate) exercising powers in a sub-division shall also be subordinate
to the Sub-divisional Magistrate, subject, however, to the general control of the District
Magistrate.
(2) The District Magistrate may, from time to time, make rules or give special orders,
consistent with this Code, as to the distribution of business among the Executive
Magistrates subordinate to him and as to the allocation of business to an Additional
District Magistrate.
The District Magistrate has powers to transfer a case from the court of one Executive Magistrate to
that of another.107
107 Shiv Narain Pandey v Vindhyachal Pandey, 1988 (2) Crimes 252 , 254 (All).
End of Document

[s 24] Public Prosecutors.-
Courts and Offices
Mmaneesh Bajpai
108 [s 24] Public Prosecutors.-
(1) For every High Court, the Central Government or the State Government shall, after
consultation with the High Court, appoint a Public Prosecutor and may also appoint one
or more Additional Public Prosecutors, for conducting in such Court, any prosecution,
appeal or other proceeding on behalf of the Central Government or State Government,
as the case may be.
(2) The Central Government may appoint one or more Public Prosecutors, for the purpose
of conducting any case or class of cases in any district or local area.
(3) For every district, the State Government shall appoint a Public Prosecutor and may also
appoint one or more Additional Public Prosecutors for the district:
Provided that the Public Prosecutor or Additional Public Prosecutor appointed for
one district may be appointed also to be a Public Prosecutor or an Additional Public
Prosecutor, as the case may be, for another district.
(4) The District Magistrate shall, in consultation with the Sessions Judge, prepare a panel of
names of persons, who are, in his opinion, fit to be appointed as Public Prosecutors or
Additional Public Prosecutors for the district.
(5) No person shall be appointed by the State Government as the Public Prosecutor or
Additional Public Prosecutor for the district unless his name appears in the panel of
names prepared by the District Magistrate under sub-section (4).
(6) Notwithstanding anything contained in sub-section (5), where, in a State there exists a
regular Cadre of Prosecuting Officers, the State Government shall appoint a Public
Prosecutor or an Additional Public Prosecutor only from among the persons constituting
such Cadre:
Provided that where, in the opinion of the State Government, no suitable person is
available in such Cadre for such appointment that Government may appoint a
person as Public Prosecutor or Additional Public Prosecutor, as the case may be,
from the panel of names prepared by the District Magistrate, under sub-section (4).
109 [ Explanation .—For the purposes of this sub-section,—
(a) “regular Cadre of Prosecuting Officers” means a Cadre of Prosecuting Officers

which includes therein the post of a Public Prosecutor, by whatever name called, and
which provides for promotion of Assistant Public Prosecutors, by whatever name
called, to that post;
(b) “Prosecuting Officer” means a person, by whatever name called, appointed to
perform the functions of a Public Prosecutor, an Additional Public Prosecutor or an
Assistant Public Prosecutor under this Code.]

(7) A person shall be eligible to be appointed as a Public Prosecutor or an Additional Public

Prosecutor under sub-section (1) or sub-section (2) or sub-section (3) or sub-section (6),
only if he has been in practice as an advocate for not less than seven years.
(8) The Central Government or the State Government may appoint, for the purposes of any
case or class of cases, a person who has been in practice as an advocate for not less than
ten years as a Special Public Prosecutor:
110[ Provided that the Court may permit the victim to engage an advocate of his
choice to assist the prosecution under this sub-section.]
(9) For the purposes of sub-section (7) and sub-section (8), the period during which a person
has been in practice as a pleader, or has rendered (whether before or after the
commencement of this Code) service as a Public Prosecutor or as an Additional Public
Prosecutor or Assistant Public Prosecutor or other Prosecuting Officer, by whatever
name called, shall be deemed to be the period during which such person has been in
practice as an advocate.]
Bihar.— The following amendments were made by Bihar Act No. 16 of 1984, section 2.
Section 24(6).—In section 24 for sub-section (6) substitute following and deemed always
to have been substituted:—
(6) Notwithstanding anything contained in sub-section (5) where in a State there exists a
regular cadre of prosecuting officers, the State Government may also appoint a Public
Prosecutor or an Additional Public Prosecutor from among the persons constituting such
cadre.
Haryana.— The following amendments were made by Haryana Act No. 14 of 1985,
section 2.
Section 24(6).—In its application to the State of Haryana to sub-section (6) of section 24
of the Code of Criminal Procedure, 1973, the following Explanation shall be added:—
Explanation.—For the purpose of sub-section (6), the persons constituting the Haryana
State Prosecution Legal Service (Group A) or Haryana State Prosecution Legal Service
(Group B), shall be deemed to be a regular cadre of prosecuting officers.
Karnataka.— The following amendments were made by Karnataka Act No. 20 of 1982,
section 2 (w.e.f. 3 September 1981).
Section 24.—In its application to the State of Karnataka, in section 24:—
(i) words and punctuation mark “or the State Government shall”, omitted.

(ii) for the words “appoint Public Prosecutor,” substitute the words “or the State Government
shall appoint a Public Prosecutor”.
Madhya Pradesh.— The following amendments were made by MP Act, 21 of 1995, section
3—In section 24 of the Principal Act—
(i) Section 24(6).—In sub-section (6), for the words, brackets and figure “Notwithstanding
anything contained in sub-section (5)”, the words, brackets, letter and figures
“Notwithstanding anything contained in sub-section (5), but subject to the provisions of
sub-section (6-A)” shall be substituted and shall be deemed to have been substituted with
effect from 18 December 1978;
(ii) Section 24(6-A).—After sub-section (6), the following sub-section shall be inserted and
shall be deemed to have been inserted with effect from 18 December 1978, namely:—
(6-A) Notwithstanding anything contained in sub-section (6), the State Government may
appoint a person who has been in practice as an advocate for not less than seven years as the
Public Prosecutor or Additional Public Prosecutor for the district and it shall not be necessary
to appoint the Public Prosecutor or Additional Public Prosecutor for the district from among
the persons constituting the Cadre of Prosecuting Officers in the State of Madhya Pradesh and
the provisions of sub-sections (4) and (5) shall apply to the appointment of a Public Prosecutor
or Additional Public Prosecutor under this sub-section;
(iii) Section 24(7).—In sub-section (7), after the words, brackets and figure “sub-section (6)”
the words, brackets, figure and letter “or sub-section (6-A)” shall be inserted and shall be
deemed to have been inserted with effect from 18 December, 1978; and
(iv) In sub-section (9), for the words, brackets and figure, “sub-section (7)”, the words,
brackets, figures and letter “sub-section (6-A) and sub-section (7)” shall be substituted and
shall be deemed to have been substituted with effect from 18 December 1978.
Maharashtra.— The following amendments were made by Maharashtra Act No. 34 of 1981,
section 2 (w.e.f. 26 May 1981).
Section 24.—In section 24 in its application to the State of Maharashtra:—
(a) in sub-section (1), the words “after consultation with the High Court”, shall be deleted;
(b) in sub-section (4), for the words “in consultation with the Sessions Judge,” the words
“with the approval of the State Government,” shall be substituted.
Rajasthan.— The following amendments were made by Rajasthan Act No. 1 of 1981, section 2
(w.e.f. 10 December 1980).
Section 24(6).—Sub-section (6) of section 24 in its application to the State of Rajasthan shall
be deemed always to have been substituted by the following:—

(6) Notwithstanding anything contained in sub-section (5), where in a State there exists a
regular cadre of Prosecuting Officers, the State Government may also appoint a Public
Prosecutor or an Additional Public Prosecutor from among the persons constituting such cadre.
Tamil Nadu.— The following amendments were made by Tamil Nadu Act No. 42 of 1980,
section 2 (w.e.f. 1 February 1980).
Section 24(6).—(a) in sub-section (6), after the expression “sub-section (5)”, the following
shall be inserted, namely:—
but subject to the provisions of sub-section (6-A);
Section 24(6A).—(b) after sub-section (6), the following sub-section shall be inserted,
namely:—
(6-A) Notwithstanding anything contained in sub-section (6), the State Government may
appoint a person who has been in practice as an advocate for not less than seven years, as the
Public Prosecutor or Additional Public Prosecutor for the district and it shall not be necessary
to appoint the Public Prosecutor or Additional Public Prosecutor for the district from among
the persons constituting the cadre of Prosecuting Officers in the State of Tamil Nadu and the
provisions of sub-sections (4) and (5) shall apply to the appointment of a Public Prosecutor or
Additional Public Prosecutor under this sub-section;
Section 24(7).—(c) in sub-section (7), after the expression “sub-section (6)”, the expression
“or sub-section (6-A)” shall be inserted.
Uttar Pradesh.—(1) The following amendments were made by UP Act No. 33 of 1978, section
2 (w.e.f. 9 October 1978).
Section 24(1).—In its application to the State of Uttar Pradesh in section 24(1),
(i) after the words “Public Prosecutor”, words, “and one or more Additional Public
Prosecutors” shall be inserted and be deemed always to have been so inserted.
Section 24(7).—(ii) After sub-section (6), sub-section (7) inserted, and deemed always to been
so inserted, as follows:—
(7) For the purposes of sub-sections (5) and (6), the period during which a person has been in
practice as a pleader, or has rendered service as a Public Prosecutor, Additional Public
Prosecutor or Assistant Public Prosecutor shall be deemed to be the period during which such
person has been in practice as an advocate.

(2) The following amendments were made by UP Act 18 of 1991, section 2 (w.e.f. 16 February
1991).
Section 24.—In section 24
(a) in sub-section (1), the words “after consultation with the High Court,” shall be omitted;
(b) sub-sections (4), (5) and (6) shall be omitted.
(c) in sub-section (7), the words “or sub-section (6)” shall be omitted.
West Bengal.— The following amendments were made by WB Act 26 of 1990, section 3 (w.e.f.
1 March 1991).
Section 24(6).—In sub-section (6) of section 24 for the words “shall appoint a Public
Prosecutor or an Additional Public Prosecutor only”, the words “may also appoint a Public
Prosecutor or an Additional Public Prosecutor” shall be substituted.
(2) The following amendments were made by W.B. Act 25 of 1992, section 3.
(2) in sub-section (6), the proviso shall be omitted.
[s 24.2] Legislative changes in section 24— CrPC (Amendment) Act, 2005 (25 of 2005).—
In section 24 of the principal Act, in sub-section (6), after the proviso, the following Explanation shall
be inserted and shall be deemed to have been inserted with effect from the 18 December 1978,
namely:
Explanation.—For the purposes of this sub-section,
(a) “regular Cadre of Prosecuting Officers” means a Cadre of Prosecuting Officers which includes
therein the post of a Public Prosecutor, by whatever name called, and which provides for
promotion of Assistant Public Prosecutors, by whatever name called to the post;
(b) “Prosecuting Officer” means a person, by whatever name called, appointed to perform the
functions of a Public Prosecutor, an Additional Public Prosecutor or an Assistant Public
Prosecutor under this Code.”

Notes on Clauses
This clause seeks to amend sub-section (6) of section 24 to clarify the expression “regular Cadre of
Prosecuting Officers” and “Prosecuting Officer”. (Notes on Clauses, clause 3).
In sub-section (6), the Explanation has been inserted and shall be deemed to have been inserted with
effect from the 18 December 1978.
[s 24.3] CrPC Amendment Act, 2008 (5 of 2009).
In section 24, sub-section (8), a new proviso has been added, by section 3 of the CrPC (Amendment)
Act, 2008 (5 of 2009). Section 24 relates to appointment of Public Prosecutors. The new proviso
empowers the court to permit the victim to engage an advocate of his choice to co-ordinate with the
prosecution in consultation with the Central or the State Government, as the case may be. (Vide Notes
on Clauses).
Next in importance to the impartiality of the tribunal is the integrity of the person in charge of the
prosecution, namely, the Public Prosecutor.111 The Public Prosecutor is not a protagonist of any party.
In theory he stands for the State in whose name all prosecutions are conducted. It must be remembered
that all offences affect the public as well as the individual injured, and that in all prosecutions the State
is the prosecutor. The State either proceeds itself, or lends the sanction of its name. The offence is
dealt with as an invasion of the public peace, and not a mere contention between the complainant and
the accused.112
The function of the Public Prosecutor relates to a public purpose entrusting him with the responsibility
of acting only in the interest of administration of justice. In the case of Public Prosecutors, this
additional public element flowing from statutory provisions in Code of Criminal Procedure, 1973,
undoubtedly, invest the Public Prosecutors with the attribute of holder of a public office which cannot
be whittled down by the assertion that their engagement is purely professional between a client and his
lawyer with no public element attaching to it.113
The Public Prosecutor is an important officer of the State Government and is appointed by the State
Government under the provisions of Criminal Procedure Code. He is not a part of the investigating
agency, but is an independent statutory authority.114 A Public Prosecutor, Additional Public Prosecutor
do not hold civil post, their appointment is a tenure appointment115, on the other hand the Assistant
Public Prosecutors hold Civil post.116 An additional Public Prosecutor is not a public servant, so he
cannot be prosecuted under Prevention of Corruption Act, 1988.117 A lawyer engaged by the
complainant is not a Prosecutor within a meaning of section 24 or section 25 of Code of Criminal

Procedure, 1973, for the State Government or the Central Government has not so appointed him.
Section 301 Code of Criminal Procedure, 1973 would not apply to such a case.118 The court of Special
Judge shall be deemed to be a court of Session and the person conducting a prosecution before a
Special Judge shall be deemed to be the Public Prosecutor as well. Hence, where in the legal capacity
of a Public Prosecutor, the Legal Advisor, Vigilance and Anti Corruption Bureau, who is legally
empowered to prosecute the cases under the Prevention of Corruption Act, 1988 had presented the
application before the District Court, signed by an authorized officer, there is no violation of section
The role of Public Prosecutor is restricted to conducting or withdrawal of prosecution and does not
extend to field of investigation.120
If a Public Prosecutor does not examine material witnesses like medical officer and investigating
officer due to negligence or for ulterior reasons the trial Judge can take action against the erring public
prosecutor and can also compel the attendance of the witnesses.121
The appointment of prosecutor is a compelling constitutional/administrative necessity, the court

cannot refuse to appoint prosecutor merely on the ground of financial constraint and also stop or stay
criminal trial.122
After the amendment of section 24 by the CrPC (Amendment) Act 2005, a Public Prosecutor cannot
be appointed directly but the post of Public Prosecutor has to be filled up by promotion from Assistant
Public Prosecutors.123
The purpose of a criminal trial is not to support, at all costs a theory, but to investigate the offence and
to determine the guilt or innocence of the accused, and the duty of a Public Prosecutor is to represent
not the police, but the State and his duty should be discharged by him fairly and fearlessly, and with a
full sense of the responsibility that attaches to his position.124 “The counsel for the
prosecution…should not by statement aggravate the case against the prisoners, or keep back a witness
because his evidence may weaken the case for the prosecution. His only object should be to aid the
court in discovering the truth. A public prosecutor should avoid any proceeding likely to intimidate or
unduly influence witnesses on either side. There should be on his part no unseemly eagerness for, or
grasping at, conviction.”125 The ideal Public Prosecutor is not concerned with securing convictions, or
with satisfying departments of the State Government with which he has to be in contact. He must
consider himself as an agent of justice.126
Where the Public Prosecutor does not appear for the prosecution, the Presiding Officer discharges the

role of the Public Prosecutor, the trial would be vitiated and conviction be set aside.127
The Prosecuting Officers in Bihar State do not include Public Prosecutor and Additional Public
Prosecutor. Assistant Public Prosecutors are not eligible for appointment as Public Prosecutor.128 The
Union of India should take care to entrust sensitive cases of far reaching effect, in particular, on
question of law, to counsel who have experience and ability in that branch of law to defend these
cases.129 The investigating officer cannot be directed to consult the Public Prosecutor before filing
charge-sheet/Final Report in a case.130
[s 24.5] Classes of Public Prosecutor.—
There are under this section read with section 2(u) the following classes of Public Prosecutors :
(1) Public Prosecutors appointed by the Central Government, and

(2) Public Prosecutors appointed by the State Government, under sub-section (1).
(3) Public Prosecutors, and
(4) Additional Public Prosecutors, appointed by the State Government under sub-section (2).
(5) Special Public Prosecutors appointed by the Central Government, and
(6) Special Public Prosecutors, appointed by the State Government under sub-section (6).
Besides them, there are Assistant Public Prosecutors appointed by the State Government and, in some
cases, by the District Magistrate (see section 25). Under sub-section (u) of section 2 Public Prosecutor
includes “any person acting under the directions of a Public Prosecutor.”
[s 24.6] Appointment of Public Prosecutor.—
For a person to be a Public Prosecutor, it is necessary, that he is either appointed as such under section
24 or acts under the directions of a Public Prosecutor so appointed. Only a public prosecutor can
present an appeal to the High Court against an order of acquittal, if so directed by the State
Government,131 see also commentary under section 377. A person cannot be appointed as Public
Prosecutor or Additional Public Prosecutor for the District unless his name appears in the panel of
names prepared by the District Magistrate under section 24(4) Code of Criminal Procedure, 1973, and
unless his name appears in the panel, he has no right to be considered for appointment.132 An
Additional Public Prosecutor cannot be appointed as Public Prosecutor unless the Sessions Judge
recommends him to be included in the panel of names prepared by the District Magistrate as
envisaged in section 24(3) Code of Criminal Procedure, 1973.133

Administrative instructions contrary to section 24 would have no effect and appointment of Public
Prosecutor/Standing Counsel as per provisions of section 24, satisfying the criteria laid by the section
would be valid.134
The recommendation of the District Judge does not mean recommendation by a collegium of Judges
headed by the District Judge.135 In making appointment the State Government would give primacy to
the opinion of the District Judge.136
Invitation of applications by the District and Sessions Judge from the advocates willing to be
considered for appointment as Public Prosecutor does not violate the provisions of rule 36 of the Bar
Council of India Rules, 1978.137
The appointment and engagement of a Public Prosecutor District Government Counsel is not the same
as that by a private litigant of his counsel and not being purely private. There is element of continuity
of the appointment and public element is attached to the office. The appointment is not at the sweet
will of the Government which can be terminated at any time, even without the existence of any cogent
reason, during the subsistence of the term.138
The appointment of Government Law Officers was challenged by way of public interest litigation on
the ground that the candidate appointed was not eligible as he did not have actual practice in the High
Court for at least five years as provided is the Kerala Govt. Law Officer (Appointment and Condition
of Service) and Conduct of Cases Rules (1978), rule 3. It was held that section 24(7) stipulates that the
only qualification required is seven years as an Advocate. The appointment is by the approval of High
Court and hence it cannot be questioned. The Rules apparently are not of much importance. In the
circumstances the appointment was held valid.139
[s 24.7] Extension/Renewal of the term.—
Section 24 lays down the procedure for appointment of Public Prosecutor, but not for
extension/renewal; the procedure laid down by the section has also to be followed for
renewal/extension of the term.140
A Public Prosecutor has to discharge some administrative functions also, if he lacks administrative
capability eg lacks control over ADCs, the Government may not renew his term.141
In terms of section 24 and Legal Remembrancer’s Manual Para 7.08, for renewal of the form of

District Government Counsel, consideration of their past performance and conduct in the light of the
recommendations of District Judge and District Magistrate are necessary. Thus, where interim
mandamus to renew the term of respondents was granted in frustration of provisions of LR Manual
and section 24 of the Code, it was held liable to be set aside.142
[s 24.8] Advocate-General cannot become Public Prosecutor.—
The Advocate-General will not become the Public Prosecutor unless appointed under this section.143
Only in a rare and important case, an Advocate-General should be expected to appear. But where he
has been specifically empowered by the State Government to appear, the other law officers including
the Public Prosecutor have no right to be heard except through him and under his instructions.144
Appeal against acquittal presented by Additional Advocate-General, on the ground that the Public
Prosecutor has not been appointed, is not maintainable notwithstanding the rules under Article 165 of
the Constitution providing that the Advocate-General shall represent the State Government in
important cases.145
[s 24.9] Status of Advocate General—conferment on Public Prosecutor.—
Where the conferment of status and benefits of Advocate General on the Public Prosecutor was
challenged on the ground that the Advocate General appointed under Article 165 of the Constitution is
a constitutional post, it was held that by conferring benefits and status similar to the Advocate
General, the Public Prosecutor does not become Advocate General. There is nothing that bars the
Government from giving benefits similar to that of an Advocate General to the Public Prosecutor.146
[s 24.10] Relationship between Public Prosecutor and State.—
The relationship of District Government Counsel Public Prosecutors, Addl. Public Prosecutors with
the Government is that of a counsel and client.147
[s 24.11] Public Prosecutor’s duty.—
The Public Prosecutor is not a protagonist of any party though, in theory, he stands for the State in
whose name all prosecutions are conducted. He is to aid the court by examining all witnesses who had
knowledge of all the relevant facts unless he has got sufficient cause to believe that the witness has
come with a pre-determined intention of giving false evidence or that his examination is unnecessary
or superfluous, and thus should place before the court all the evidence bearing upon the charge.
Hence, a person who is appointed to this highly responsible post should always uphold the dignity of
this high office with a full sense of responsibility and see that its value is in no circumstance
devalued.148
The duty of the prosecutor is to assist the court in reaching a proper conclusion in regard to the case
which is brought before it for trial.149 The public prosecutor shall not be partial either to the accused or
the prosecution.150 A Public Prosecutor ought not defend an officer against whom the allegations of

acts of omission or commission are made.151
The filing of complaint by the de facto complainant after consulting the public prosecutor is not
illegal.152
[s 24.12] Effect of void appointment.—
Even if the appointment as Assistant District Government Counsel is found to be void in view of sub-
section (2), the Government would still be bound to compensate for the services rendered.153
[s 24.13] Legal Remembrancer not ex-officio Public Prosecutor.—
A Legal Remembrancer cannot be made ex officio Public Prosecutor.154
[s 24.14] Preparation of Panel—Sub-section (4).—
Sub-section (4) casts a duty upon the District Magistrate to prepare a panel of names of persons who,
in his opinion, are fit to be appointed as Public Prosecutors in consultation with the Sessions Judge.
The sub-section obliges the District Magistrate to hold consultation with the Sessions Judge and to
prepare a panel of names. The provisions of sub-section (4) are mandatory.155 The District Magistrate
cannot include a name in the Panel of Lawyer without the recommendation of the District Judge.156
Where the District Judge mechanically forwards the list sent by the Bar Association without
expressing his opinion with regard to the suitability of the persons in the list, it does not amount to
consultation. The District Judge had not applied his mind, the mandatory provisions of section 24
were not complied with.157 Where a panel for appointment of Addl. Public Prosecutor was prepared by
the District Magistrate in consultation with the Addl. Sessions Judge holding the charge of Sessions
Judge in the absence of Regular Sessions Judge, there was an effective consultation under section
24(4), the appointment of Additional Public Prosecutor was not illegal.158 A person included in the
panel prepared for Public Prosecutor can be appointed as Additional Public Prosecutor.159 Where the
District Judge had not recommended the name of the respondent in panel for appointment to the post
of Additional Public Prosecutor, even then the District Magistrate included his name in the panel, held
there was no consultation of the District Judge by the District Magistrate within the meaning of
section 24(4)(5), the appointment of the respondent as Additional Public Prosecutor by the
Government was invalid and as such set aside.160
In the case of appointment of an Advocate as Additional Public Prosecutor, it was held that
appointment to the post is to be made primarily on the basis of merit and suitability and therefore the
pendency of criminal cases against the candidate would undoubtedly be one of the relevant factors to
be taken into consideration while adjudging the suitability of the candidate. Thus, where the
Superintendent of Police did not bring the matter of pendency of criminal case against one candidate
to the notice of the District Magistrate, it was held that the appointment of the respondent to the post
of Additional Public Prosecutor was liable to be set aside.161

It has been held by Kerala High Court that appointment of Special Public Prosecutor cannot be held to
be in absence of consultation under sub-sections (4) and (5) of section 24. It was further held that the
appointment of Special Public Prosecutor cannot be held to be violative of section 25A on the ground
that the Director General of Prosecution was not consulted.162
[s 24.15] Advocate.—
The expression “advocate” means a person enrolled as such under the Advocates Act, 1961. By virtue
of this section, a person eligible for the appointment as Public Prosecutor, himself must have been in
practice as an advocate for at least seven years.163 His practice as a Pleader could not be counted as
practice as an Advocate for the purpose of clause (7).164
[s 24.16] Appointment of additional Public Prosecutors for Metropolitan area.—
For preparation of panel under section 24(4), the Metropolitan Sessions Judge and not the District and
Sessions Judge is to be consulted.165
Appointment of a person not included in the panel, as a Public Prosecutor/or Additional Public
Prosecutor is invalid.166
[s 24.18] Sub-section (6)—Panel.—
Panel of single person cannot be considered to be panel for the purpose of this section.167
This section will apply to a State where there is a regular cadre consisting of hierarchy of prosecutors
from Assistant Public Prosecutors to Public Prosecutors. In the state like Kerala which does not have
such cadre this section will not apply.168
An Addl. Govt. Advocate appointed as a Public Prosecutor in High Court, in respect of cases which
arose in the State, has power to file an appeal against acquittal before the High Court.169
[s 24.19] “Regular cadre of prosecuting officers”.—
According to sub-section (6), any person from the advocates or from any other source cannot be
appointed as a Public Prosecutor or Additional Public Prosecutor, if there already exists a regular
cadre of Prosecuting Officers in a State. The intention of introducing sub-section (6), and the deeming
fiction in sub-section (9), is to safeguard the promotional rights of Prosecuting Officers in such of the
States where there is already in existence a regular cadre consisting of hierarchy of Prosecuting
Officers going to the top level of Additional Public Prosecutors and Public Prosecutors. Further, the
expression “regular cadre of Prosecuting Officers” comprises a service with Assistant Public
Prosecutor at the lowest level and Public Prosecutor at the top.170 It is not necessary that the
appointment on the post of Public Prosecutor or Additional Public Prosecutor be made from the

category of Assistant Public Prosecutor.171
[s 24.20] Service as full-time Govt. employee.—
In computing the period of practice as an advocate, the period of service as a Judicial Officer cannot
be included. What is required under this sub-section is that an Advocate must have been in practice for
not less than ten years. The emphasis is on his being an Advocate in practice and not in practice as a
Government Servant. The underlying object in enacting sub-section (6) is that only an Advocate of
certain standing and experience at the Bar should be chosen for appointment as a Special Public
Prosecutor. It cannot be attributed to the Legislature that, when it employed the language “an advocate
who has been in practice for not less than ten years”, it intended that even a full-time employee of the
Government governed by the service rules would also be eligible or would satisfy the requirement of
this section.172
This section does not provide for appointment of Legal Remembrancer as ex-officio Public Prosecutor
for High Court. No such appointment could be validly made consistently with the eligibility test
introduced by this provision.173
[s 24.22] Notice to Government Advocate.—
Notice given to the Government Advocate amounts to a notice to the Public Prosecutor. The
Government Advocate holds the status of Public Prosecutor also.174
[s 24.23] Police officer as Prosecutor.—
Appointment of a police officer as Director of Prosecution of the State is violative of the very letter
and spirit of sections 24 and 25.175
[s 24.24] Authority to appear in a private case.—
Public Prosecutor or Additional Public Prosecutor cannot appear on behalf of accused even in a
complaint case and in a case against the State.176
[s 24.25] Interest in the case.—
The fact that a person had appeared before the Motor Accidents Claims Tribunal as counsel on behalf
of the next akin of the deceased does not, in any manner, disqualify him professionally to appear in the
Criminal Court on behalf of the State in respect of a crime arising from the same incident as that
which gave rise to the claim for compensation.177
The accused cannot claim that the prosecution shall be conducted by a particular prosecutor only.178
[s 24.26] Appointment of Special Public Prosecutor (Sub-section (8)).—
In ordinary circumstances, a Special Public Prosecutor is not to be appointed, the appointment without

disclosing special reasons was held illegal.179 It is not necessary that whenever a request is made,
Special Public Prosecutor would be appointed in the case.180 Such appointment can be made only and
only when public interest so demands.181 An advocate from outside the State can be appointed as
Special Public Prosecutor on payment of higher remuneration.182 Where the complainant filed
application for appointment of Special Public Prosecutor merely on the ground that the Public
Prosecutor appointed in the court was pre-occupied with the other work and the appointment is made
without making any enquiry, it was found a case of non application of mind, the order of appointment
of Public Prosecutor was held in violation of Articles 14 and 21 of the Constitution and was set
aside.183 Where there is no material to show that Public Prosecutor who is in charge of case is
incompetent to conduct trial or other aspects disqualify him to fulfill duty cast on him, nor special
circumstances exist for appointment of Special Public Prosecutor, Special Public Prosecutor cannot be
appointed merely on the ground that complainant is ready to pay remuneration of Special Public
Prosecutor, or the crime committed is a heinous one.184 Where the appointment of Special Public
Prosecutor in Special Courts set up under SC & ST Act was not in accordance with the provisions of
the Act and section 24 Code of Criminal Procedure, 1973, but was made in terms of a Scheme
formulated on the recommendations of a Commission of Enquiry, the appointment was not valid and
was rightly not acted upon by the Government.185 Without considering the necessity, appointment of a
Special Public Prosecutor should not be made on the mere request of a private complainant.186
Multiple murders in a broad day light,187 or because the murder of leader of a political party has been
committed is no ground for appointment of a special Public Prosecutor and that too at State
expenses.188
The appointment of the Special Public Prosecutor at the request of the private complainant cannot be
as a matter of rule but in case such request is made the Legal Remembrancer should scrutinize and
come to the conclusion whether there is a case for appointment of a Special Public Prosecutor and in
case he comes to the conclusion that Special Public Prosecutor has to be appointed he should call upon
the complainant to deposit the fees payable to Special Public Prosecutor.189 Appointment of Special
Public Prosecutor on the request of a private complainant is subject to judicial scrutiny.190
It is not enough for one to call in question the appointment of a Special Public Prosecutor only on the
basis of the plea that such an appointment was solicited by the victim or someone else. It must be
demonstrated that the State has failed to apply its mind with regard to the nature of the case before
appointing a Special Public Prosecutor. An accused has a right to be prosecuted fairly and at same
time victims have an equal right for a proper and correct manner of prosecution of the offender. The
rights of the victims are no less significant.191
On the question of appointment of Special Public Prosecutors for the Central Bureau of Narcotics, the
Supreme Court was informed that the appointment is made by the Ministry of Home Affairs after
scrutiny by the Ministry of Law and Justice, on the recommendation of the District and Sessions Judge
concerned. It was suggested by the court that the appointment procedure should be brought at par with
that followed in the case of appointment of Public Prosecutors. However, for the present it was
directed that appointments should be made on the recommendation of the District and Sessions Judge
who shall make recommendation in consultation with the Administrative Judge of the Sessions

Division.192
It has been held by the Andhra Pradesh High Court that the appointment of Special Public Prosecutor
for the High Court is not in derogation of power or duty of Government to appoint Public Prosecutor
and Additional Public Prosecutors to the High Court under section 24(1) or for Sessions Court. Such
appointment would not suggest that Public Prosecutor and Additional Public Prosecutors in the High
Court are not capable of handling a particular case. Moreover, the appointment was made by the Govt.
in view of the voluminous evidence and record in the case.193
While upholding the appointment of Special Public Prosecutor, the High Court held as unjustified the
appointment of Assistant Special Public Prosecutor as being not contemplated under the Code. The
High Court rejected the plea of the State Government that the appointment was made is exercise of
executive power under Article 162 of the Constitution. It was held that the State Government cannot
take shelter under Article 162 for justifying fanciful or whimsical actions.194
A Special Public Prosecutor appointed by the Central Government or the State Government for
conducting any case or class of cases would be Public Prosecutor for all purposes under the Act.195
Normally a Special Public Prosecutor appointed in the case would be paid out of the State Funds196
except in cases where the prosecutor is Nationalized Bank, Educational Institution or the like.197
A person who is admittedly on bad terms with the accused should not be appointed as prosecuting
counsel except for good reasons.198 The appointment of an advocate as a Special Public Prosecutor
would not be invalid/illegal merely because he has already appeared on behalf of the complainant.199
An accused has no say in matter of appointment of Special Public Prosecutor,200 cannot challenge the
appointment of Special Public Prosecutor except where made for extraneous considerations with mala
fide intention to prosecute the accused201 complainant cannot name a person of his choice for such
appointment.202 An accused cannot claim as a matter of right that the prosecution be conducted by a
particular prosecutor and not by any other.203 In the undermentioned case204 it has been held that
accused in a Sessions case have locus standi to challenge the appointment of a Special Public
Prosecutor.205 The discretion of the Government in the matter of appointment of Public
Prosecutor/Additional Public Prosecutors/Special Public Prosecutors, as the case may be, is very
limited, in that they have to select and appoint a person from the panel of names sent by the District
Magistrate in consultation with the District Judge, and any panel of names sent by the District Judge
without the consultation of the District Judge, for appointment as Public Prosecutor/Additional Public
Prosecutor/Special Public Prosecutor, as the case may be, are of no value, for the Government will

have no benefit of the opinion of the Sessions Judge. Thus where appointment of named Prosecutor
was made on the mere askance of the de facto complainant without consultation of the District Judge,
the appointment was adjudged invalid and was set aside.206 No consultation by the Government with
any authority is necessary under section 24 when any Special Public Prosecutor is appointed by the
Government Central/State, to conduct any particular case or class of cases.207 Where the appointment
of Special Public Prosecutor has been made by Government direction to the private party to pay his
fee etc, was held legal,208 contra.209 Where appointment of a new Special Public Prosecutor without
cancelling the appointment of earlier Special Public Prosecutor, was not objected to by the earlier
Special Public Prosecutor, the appointment cannot be collaterally challenged, particularly in appeal by
special leave.210
The Courts in India have recognised the practice of appointing Special Public Prosecutor at the
instance of aggrieved persons in criminal cases.211 A Special Public Prosecutor is not to be appointed
in ordinary circumstances212 can be appointed only when Public interest demands it.213 Merely
because the accused has engaged a leading lawyer in their defence, the appointment of Special Public
Prosecutor by the Government was held bad in law.214
The appointment of a Special Prosecutor by the State for the prosecution at the expense of the
complainant party in a criminal case is not violative of Articles 14 and 21 of the Constitution. Such a
Special Public Prosecutor cannot be presumed to be biased in favour of the prosecution.215 The
appointment of a Special Public Prosecutor cannot be challenged on the ground of apprehension of
bias.216 The bereaved member of the family of the deceased has locus standi to challenge the
appointment of a Special Public Prosecutor in the case.217 Judicial review of the appointment of Public
Prosecutor is permissible when the appointment is palpably arbitrary and against the public interest.218
In a case of appointment of Special Public Prosecutor under the Prevention of Money Laundering Act,
2002, it was held by the Supreme Court that the expression “under” in section 46(2) of the Act cannot
be construed to mean that prosecutor will be holding employment under the State. It would only mean
that Special Public Prosecutor should be a lawyer on the panel of either the state or Central
Government. In the circumstances the Bench held that Mr. UU Lalit (as His Lordship then was)
satisfies the said requirement quiet adequately.219
In the celebrated case of the Tamil Nadu Chief Minister Jayalalithaa, important questions regarding
the appointment of Special Public Prosecutor were raised. The State Government proceeded to appoint
respondent as Special Public Prosecutor without questioning his ability or suitability. The Government
also did not raise any issue is respect of the manner of consultation with Chief Justice of the High
Court. The said appointment continued unobjected for about seven months and the State Government
acquiesced in the process of appointment. Thus, it was held that subsequently it is not entitled to raise
grievance that there has been no consultation or insufficient consultation with Chief Justice of the
High Court.220

In the above case it was further held by the Supreme Court that the notification for the appointment of
respondent as Special Public Prosecutor was issued without demur and the respondent started working
on the said post. Evidence, oral and documentary, was recorded and the trial was almost completed. It
was held that withdrawal of appointment of Special Public Prosecutor after six months of his
functioning is motivated by mala fides. Hence the notification purporting to revoke the appointment of
respondent is liable to be struck down.221
On the sudden volte face by Governments due to change of ruling dispensation, the Supreme Court
had very harsh words to say—
The principles of Governance have to be tested on the touchstone of justice, equity and fair play. A decision may look legitimate
but as a matter of fact, if the reasons are not based on values but to achieve popular accolade, the decision cannot be allowed to
operate. Therefore, unless it is found that the act done by the authority earlier in existence is either contrary to the statutory
provisions or unreasonable, or is against public interest, the State should not change its stand merely because the other political
party has come into power. ‘Political agenda of an individual or a political party should not be subversive of rule of law.222
It is not necessary that whenever an application is made, it should be allowed and a Special Public
Prosecutor should be appointed as that would run contrary to the spirit of the scheme of the code.
There may be cases where a powerful complainant may have begun a proceeding to victimize his
opponent. It would be a travesty of justice if, is such a case, the State concedes to the request for the
appointment of a Special Public Prosecutor. The primacy given to the Public Prosecutor, under the
scheme of the Code, would be defeated if the services of a Special Public Prosecutor are made
available to a private complainant as a rule or for the mere asking.223
Thus, where the appointment of a Special Public Prosecutor was made on the ground that regular
Public Prosecutor was overburdened with work, it was held that the appointment was illegal being
made without application of mind. No independent exercise was undertaken to ascertain whether or
not the regular Public Prosecutor was so overburdened with work which renders him incapable of
handling the work entrusted to him. Moreover, the appointment appears to have been made at the
dictates of the applicant who was a Minister.224
In one case, where the appointment of Special Public Prosecutor was challenged, the case related to
the brutal murder of a victim on whom there were 52 stab-injuries and there were 76 accused and 280
witnesses cited by prosecution. A Special Investigating Team was constituted and the appointment
was made following a request from the widow of the deceased supported by Police Department. It was

held by the High Court that the appointment was in the public interest.225
[s 24.27] Assistant District Government Counsel (Criminal).—
For extension or removal of the term of an Assistant District Government Counsel (Criminal), the
same procedure for appointment as provided in section 24(4) Code of Criminal Procedure, 1973, shall
be followed.226
[s 24.28] Case transferred from another case—Public Prosecutor.—
Where a case has been transferred from another State, the Public Prosecutor to conduct the case can be
appointed by the State to which the case has been transferred.227
[s 24.29] Miscellaneous.—
Where there was no charge of dereliction of duty against a Public Prosecutor, termination of his
appointment and the appointment of a fresh person, in his place, was held contrary to public interest
and as such was set aside.228
The State Government is the competent authority to appoint a Special Public Prosecutor and in the
absence of delegation of power under sub-section (8), the District Magistrate cannot pass an order of
such appointment.229
A Special Public Prosecutor is a Public Prosecutor within the meaning of section 199(2) of this
Code.230 Where appointment of the former Public Prosecutor made by the previous Government has
not been cancelled, though in fitness of things, the new Government should have done, it does not
prevent the new Government to make a fresh appointment of the Public Prosecutor and put him in
charge of the case.231 The Special Public Prosecutor for the Special Police Establishment appointed by
Central Government, is competent to prosecute the case instituted by the Collector of Customs under
the Imports and Exports (Control) Act, 1947.232 Any defect or infirmity in instituting the petition
under section 482, by an advocate on behalf of the State, stand remedied when the advocate was
subsequently appointed by the State as Special Public Prosecutor and such appointment would cure
the initial defect in filing the petition.233
The Public Prosecutor is expected to be fair. He is not bound to examine every witness whose name is
cited in the charge-sheet. The District Magistrate cannot include the name of a person who is not
recommended by the Sessions Judge. The Public Prosecutor alone should conduct his case and not the
complainant or his counsel.
An Advocate-General cannot represent the State in an important civil or criminal proceeding unless he

is appointed as a Public Prosecutor under section 24(1).234
With the insertion of a Proviso to sub-section (8), which is to be read with the definition of “victim” as
defined by way of an insertion of section 2(wa), a victim, or those who are covered by this definition,
has been enabled to engage an advocate of his/their choice to assist the prosecution. Since the entire
criminal justice machinery is set into motion on the asking of or due to the sufferings of the victim, the
law-makers have deemed it fit to enable the victim to actively participate in the judicial process.
The need for the insertion can also be understood in the light of the following observation of the
Supreme Court235 in the context of section 301(2) which assigns a restricted role to the victim, referred
therein as “private person” to engage an advocate for the purposes of conducting a trial:—
12. The private person who is permitted to conduct prosecution in the Magistrate’s Court can engage a counsel to do the needful in
the court in his behalf. It further amplifies the position that if a private person is aggrieved by the offence committed against him or
against anyone in whom he is interested he can approach the Magistrate and seek permission to conduct the prosecution by
himself. It is open to the court to consider his request. If the court thinks that the cause of justice would be served better by
granting such permission the court would generally grant such permission. Of course, this wider amplitude is limited to
Magistrates’ Courts, as the right of such private individual to participate in the conduct of prosecution in the Sessions Court is very
much restricted and is made subject to the control of the Public Prosecutor. The limited role which a private person can be
permitted to play for prosecution in the Sessions Court has been adverted to above. All these would show that an aggrieved private
person is not altogether to be eclipsed from the scenario when the Criminal Court takes cognizance of the offences based on the
report submitted by the police. The reality cannot be overlooked that the genesis in almost all such cases is the grievance of one or
more individual that they were wronged by the accused by committing offences against them.
With the insertion of section 2(wa), read with this proviso, a victim has been enabled a more active
participation, with no discretion being left to the trial court, be it a Magistrate or a Sessions’ Judge.
108 Subs. by the Code of Criminal Procedure (Amendment) Act, 1978 (45 of 1978), section 8 (w.e.f. 18 December 1978).
109 Ins. by the Code of Criminal Procedure (Amendment) Act, 2005 (25 of 2005), section 3 (w.r.e.f. 18 December 1978).
111 VK Ghodwani v State, AIR 1965 Cal 79 ; Pukh Raj, AIR 1965 Raj 196 .

112 Queen-Empress v Murarji Gokuldas, (1889) 13 Bom 389, 390-91.
113 Shrilekha Vidyarthi v State of UP, AIR 1991 SC 537 (547) : (1991) 1 SCC 212 : 1991 SC (L&S) 742 ; Vijay Shankar Mishra v
State of UP, 1999 Cr LJ 521 (All-DB).
114 Hitendra Vishnu Thakur v State of Maharashtra, AIR 1994 SC 2623 : (1994) 4 SCC 602 : AIR 1994 SCW 3699 : 1994 SCC (Cri)
1087 (1114).
115 State of UP v Johri Mal, AIR 2004 SC 3800 (3813) : (2004) 4 SCC 714 : (2004) 19 AIC 69 : (2004) 3 Crimes 83 (SC).
116 State of UP v Johri Mal, AIR 2004 SC 3800 (3813) : (2004) 4 SCC 714 : (2004) 19 AIC 69 : (2004) 3 Crimes 83 (SC);
Samarendra Das Advocate v The State of WB, AIR 2004 SCW 488 : JT 2004 (2) SC 413 : (2004) 2 SCC 274 .
117 State of Maharashtra v Suresh Gopalrao Gawali, 2008 Cr LJ (NOC) 292 : 2008 (1) AIR Bom R 415 (Bom).
118 HDFC Bank Ltd v Nagpur District Security Guard Board, 2008 Cr LJ 995 (997) : 2008 All MR (Cri) 230 (Bom).
119 VK Rajan (Dr) v State of Kerala, 2008 Cr LJ 909 (925, 926) (Ker-DB).
120 MC Mehta v UOI, (2007) 1 SCC 110 : (2007) 1 SCC (Cri) 264 .
121 State by KR Pel Town Police v Ramegowda, AIR 2002 Kant HCR 2612 : 2002 Cr LJ 4396 (Kant-DB).
122 Aditya Vallabh Tripathi v State of MP, 2001 Cr LJ NOC 44 : (2001) 1 Jab LJ 256 (MP-DB).
123 Pratap Narayan Gope v State of Jharkhand, 2008 Cr LJ 1550 (1552) (Jhar) : 2008 (1) JCR 491 (Jhr).
124 Ram Ranjan Ray, (1914) 42 Cal 422 , 428.
125 Per Westropp C J, in Reg. Kashinath Dinkar, (1871) 8 BHC (Cr C) 126, 153.
126 Per Anantanarayanan C J, in A Mohambaram v MA Jayavelu, 1970 Cr LJ 241 , 245 : AIR 1970 Mad 63 .
127 State of Karnataka v Ramchandra Bhimrao Bhamane, 2004 Cr LJ 330 (330, 331) (DB).
128 Jaidhari Roy v State of Bihar, 1996 Cr LJ 1498 (Pat-DB).
129 KI Pavunny v Assistant Collector (HQ) Central Excise Collectorate, (1997) 3 SCC 221 : 1997 SCC (Cri) 444 (452).

130 R Sarala v TS Velu, 2000 Cr LJ 2453 : AIR 2000 SC 1731 : AIR 2000 SCW 1791 : (2000) 4 SCC 459 : 2000 SCC (Cri) 823 .
131 State of Rajasthan v Sheokaran, 1981 SCC (Cr) 531: 1981 Mad LW (Crl) 32 Sum (SC).
132 Surapaneni Ram Prasad v Govt. of AP, 2000 Cr LJ 354 (358) (AP-DB) : 1999 (4) Andh LD 309.
133 Susey Jose v Janardhana Kurup, 1994 Cr LJ 2780 : 1995 (1) Crimes 720 (725) (Ker); Vinay Kumar Srivastava v The State of UP,
2006 Cr LJ 702 (708) (DB) : 2006 (1) ALJ 150 (All).
134 Tanvir Ahmed Mir v Government of NCT of Delhi, 2004 Cr LJ 3777 (3783) : 112 (2004) DLT 631 .
135 State of UP v Johri Mal, AIR 2004 SC 3800 (3813) : (2004) 4 SCC 714 : (2004) 19 AIC 69 : (2004) 3 Crimes 83 (SC) : (2004) 3
SCR 734 : (2004) 3 LLN 13 .
136 State of UP v Johri Mal, AIR 2004 SC 3800 (3813) : (2004) 4 SCC 714 : (2004) 19 AIC 69 : (2004) 3 Crimes 83 (SC);
Samarendra Das Advocate v State of WB, AIR 2004 SCW 488 : JT 2004 (2) SC 413 : (2004) 2 SCC 274 ; GK Bajpayee v State of
UP, 2005 Cr LJ 1985 (All-DB).
137 KS Narayan Man v State of Kerala, 1997 Cr LJ 1653 (1654) (Ker); B Rajeswar Reddy v K Narasimhachari, (2001) 6 Andh LD 679
: 2002 Cr LJ 1 (7, 8) (AP-FB).
138 Shrilekha Vidyarthi v State of UP, AIR 1991 SC 537 (546, 547) : AIR 1993 SCW 77 : (1991) 1 SCC 212 : 1993 All LJ 4; Vijay
Shankar Mishra v State of UP, 1999 Cr LJ 521 (All-DB); Ram Chandra Joshi v State of Rajasthan, 2000 Cr LJ 1660 (Raj).
139 E A Thankappan v State of Kerala, 2012 Cr LJ 1316 (Ker) (DB) : ILR 2011 (4) Kerala 634 .
140 KK Seetha Ramulu v Govt. of AP, 1994 Cr LJ 2300 : 1994 (2) Crimes 778 (AP-DB); Harpal Singh Chauhan v State of UP, 1993 Cr
LJ 3140 : AIR 1993 SC 2436 : AIR 1993 SCW 2843 : (1993) 3 SCC 552 : 1993 SCC (Cri) 938 .
141 State of UP v Johri Mal, AIR 2004 SC 3800 (3813) : (2004) 4 SCC 714 : (2004) 19 AIC 69 : (2004) 3 Crimes 83 (SC).
142 State of UP v Ajay Kumar Sharma, AIR 2014 SC 352 : (2014) 3 SCC 568 .
143 TA Rajendran v P V Ayyappan, 1986 Cr LJ 1287 (Ker).
144 Thilayil Abdurahman v State of Kerala, 1997 Cr LJ 3496 (3500) (Ker-DB).
145 State of Kerala v Kolarveetii Krishnan, 1982 Cr LJ 301 , 303 (Ker-DB).
146 E A Thankappan v State of Kerala, 2012 Cr LJ 1316 (Ker) (DB) : ILR 2011 (4) Ker 634 . [MT Khan v Government of AP, AIR
2004 SC 2934 : (2004) 2 SCC 267 —Rel.on.].

147 Trilokinath Pandey v State of UP, AIR 1990 All 143 , 165 : (1990) 1 UPLBEC 542 ; see also Shrilekha Vidyarthi v State of UP,
AIR 1991 SC 537 (546, 547) : AIR 1993 SCW 77 : (1991) 1 SCC 212 : 1993 All LJ 4.
148 Marappa Gounder v Venkatachalam, 1983 LW (Crl) 1 Mad.
149 Darya Singh v State of Punjab, AIR 1965 SC 328 : 1965 (1) Cr LJ 350 , 355 : (1964) 3 SCR 397 .
150 Prabhu Dayal v State, 1986 Cr LJ 383 (Del) : 1986 (1) Crimes 3 .
151 Sudhir M Vora v Commissioner of Police for Greater Bombay, 2004 Cr LJ 2278 (2288) (Bom-DB) (Case of Police Officer);
Khannappan v Abbas, 1986 Cr LJ 1022 (Mad).
152 Md Rafeeq (Dr) v State of AP, 2007 Cr LJ 2641 (2643) : 2007 (2) Andh LT (Cr) 308 (AP).
153 Indu Mehta v State of UP, AIR 1987 All 309 , 313.
154 Supdt & Remembrancer of Legal Affairs, WB v Prafulla Majhi, 1977 Cr LJ 853 (Cal-DB).
155 Reyasat Ali Khan v State of Bihar, 1996 (2) Crimes 358 (362) (Pat); Neelima Sadanand Vartak v State of Maharashtra, 2005 Cr LJ
NOC 264 : (2005) (5) Bom CR 750 (Bom-DB); Vinay Kumar Srivastava v The State of UP, 2006 Cr LJ 702 (708) (DB) : 2006 (1)
ALJ 150 (All).
156 Vinay Kumar Srivastava v The State of UP, 2006 Cr LJ 702 (708) (DB) : 2006 (1) ALJ 150 (All).
157 Badri Vishal Gupta v State of UP, 2007 Cr LJ 4421 (4426) (DB) : 2007 (3) MPHT 453 (MP).
158 Surapaneni Ram Prasad v Govt. of AP, 1999 Cr LJ 2852 (2854, 2855) (AP) : 1999 (3) All LT 155.
159 Gidwar Aghan Oraon v State of Jharkhand, 2004 Cr LJ NOC 47 : 2003 (2) BLJR 1215 (Jhar).
160 K Nagappa v State of AP, 2008 Cr LJ 2147 (2150) (AP).
161 PNS Prakash v Secretary to Govt. of AP Legislative Affairs and Justice, Hyderabad, 2013 Cr LJ 2771 (AP) : 2013 (3) All LT 209.
162 P Jigesh v State of Kerala, 2013 Cr LJ 3250 (Ker.) : 2013 (1) Ker LT 681 .
163 Rajendra Shankar Tripathi v State of UP, 1979 Cr LJ 243 (All-DB).
164 Rajendra Shankar Tripathi v State of UP, 1979 Cr LJ 243 (All-DB).

165 Surapaneni v Ramesh Chandra Bau, 1997 Cr LJ 677 (AP-DB).
166 Surapaneni Ram Prasad v Govt. of AP, 2000 Cr LJ 354 (AP-DB); K Nagappa v State of AP, 2008 Cr LJ 2147 (2150) (AP) (Name
of the respondent not recommended by District Judge. Appointment of the respondent as Public Prosecutor by the Government on
the recommendation of District Magistrate held invalid); Gidwar Aghan Oraon v State of Jharkhand, 2004 Cr LJ NOC 47 : 2003
(2) BLJR 1215 (Jhar).
167 V Ramachandra v M C Jagadhodhara Gupta, 1986 Cr LJ 1820 (AP).
168 K J John v State of Kerala, 1981 Cr LJ 121 (Ker-DB).
169 Mansoor v State of MP, AIR 1971 SC 1977 : (1971) 2 SCC 369 : 1971 Cr LJ 1445 (1450).
170 KJ John Assistant Public Prosecutor, Grade-I, Palai v State of Kerala, AIR 1990 SC 1902 : (1990) 4 SCC 191 : 1990 Cr LJ 1777
(SC).
171 Joshy Nambudakam, Asstt Public Prosecutor Grade-I v State of Kerala, 2007 Cr LJ (NOC) 937 (Ker) (Kerala Government Law
Officers (Appointment and Conditions of Service Rules, 1978).
172 Mallikarjuna Sharma v State of AP, 1978 Cr LJ 1354 (AP-DB).
173 Supdt Legal Affairs v Prafulla Majhi, 1977 Cr LJ 853 (Cal-DB).
174 Raj Bahadur v State of UP, 1991 Cr LJ 2239 (All).
175 Krishan Singh Kundu v State of Haryana, 1989 Cr LJ 1309 (P&H).
176 Lt Col K C Sud v SC Gudimani, 1981 Cr LJ 1779 (Del).
177 Azeez v State of Kerala, 1984 Cr LJ 1059 (Ker).
178 Vijay Valia v State of Maharashtra, 1986 Cr LJ 2093 (Bom-DB).
179 Rajendra Nigam v State of MP, 1998 Cr LJ 998 (MP); Poonamchand Jain v State of MP, 2001 Cr LJ 3113 (3116, 3117) (MP). In
the matter of Mukul Dalal v UOI, 1988 (3) SCC 144 : 1988 SCC (Cri) 566 ; Sunil Kumar v State of MP, 1992 MPLJ 722 (MP-DB);
PC Narainkutty, 1982 Cr LJ 2085 (Ker); Abdul Khader v Govt. of Kerala, 1993 Cr LJ 1249 (Ker); Madho Singh v State of
Rajasthan, (2002) 2 Raj LR 155 : 2002 Cr LJ 1694 (1702, 1703) (Raj); Mohammad Sartaj v State of MP, 2005 Cr LJ 2133 (MP);
Prakash Pralhad Patil v State of Maharashtra, 2008 Cr LJ (NOC) 1147 : 2008 (5) AIR Bom rule 189 (Bom-DB).
180 Mukul Dalal v UOI, (1988) 3 SCC 144 (152) : 1988 SCC (Cri) 566 : 1988 CrLR (SC) 350); Prakash Pralhad Patil v State of
Maharashtra, 2008 Cr LJ (NOC) 1147 : 2008 (5) AIR Bom rule 189 (Bom-DB) (Guidelines as to appointment of Special Public
Prosecutor summarised).

181 Madho Singh v State of Rajasthan, (2002) 2 Raj LR 155 : 2002 Cr LJ 1694 (1702) (Raj).
182 AS Shirsat v State of Maharashtra, 2007 Cr LJ 548 (551) (DB) : 2007 (1) Mah LJ 220 (Bom).
183 Madho Singh v State of Rajasthan, (2002) 2 Raj LR 155 : 2002 Cr LJ 1694 (1702, 1703) (Raj).
184 Poonamchand Jain v State of MP, 2001 Cr LJ 3113 (3116, 3117) (MP).
185 Jonnakuti Mokshanandam v State of AP, 2006 Cr LJ 3034 (3038) : 2006 (4) Andh LT 155 (AP).
186 Prakash Pralhad Patil v State of Maharashtra, 2008 Cr LJ (NOC) 1147 : 2008 (5) AIR Bom rule 189 (Bom-DB).
189 Omprakash Baheti v State of Maharashtra, 2006 Cr LJ 3105 (3110) (DB) : 2006 (4) Rec Cri rule 737 (Bom).
190 Omprakash Baheti v State of Maharashtra, 2006 Cr LJ 3105 (3110) (DB) : 2006 (4) Rec Cri rule 737 (Bom) (Writ lies).
191 Bharaju Ramabu v State of AP, 2014 Cr LJ 3425 (AP) : 2014 (2) Andh LT (Crl) 64 (AP).
192 Thana Singh v Central Bureau of Narcoties, 2013 Cr LJ 1262 (SC) : (2013) 2 SCC 590 .
193 Gorrepati Prasad Reddy v State of AP, 2013 Cr LJ 3508 (AP) : 2013 (2) Andh LT (Cr) 278 .
194 Gorrepati Prasad Reddy v State of AP, 2013 Cr LJ 3508 (AP) : 2013 (2) Andh LT (Cr) 278 .
195 Assistant Commissioner of Central Excise, Hyderabad v Sabnife Power Systems Ltd, (2002) 9 SCC 389 : (2002) 142 ELT 521 :
2002(4) Crimes 326 (327) (SC).
196 Mukul Dalal v UOI, (1988) SCC 3 144 (152) : 1988 SCC (Cri) 566 : 1988 CrLR (SC) 350; K v Shiva Reddy v State of Karnataka,
2005 Cr LJ 3000 (Kant).
197 Mukul Dalal v UOI, (1988)3 SCC 144 (152) : 1988 SCC (Cri) 566 : 1988 CrLR (SC) 350.
198 Varada Rama Mohana Rao v State of AP, (2004) 4 SCC 427 : 2004 SCC (Cri) 1289 (1292) : (2004) 2 Crimes 114 : 2004 Cr LJ
2829 : AIR 2004 SC 3221 .

199 Nemi Chand v State of Rajasthan, 2006 Cr LJ 4258 (4259) (DB) (Raj).
200 Gulzar Khan v State of Karnataka, 2001 Cr LJ 3586 (3591) (Karnataka); Annop v State of MP, 2006 Cr LJ 2061 (2062) : 2006 (2)
MPLJ 12 (MP).
201 KV Shiva Reddy v State of Karnataka, 2005 Cr LJ 3000 (Kant); Annop v State of MP, 2006 Cr LJ 2061 (2062) : 2006 (2) MPLJ 12
(MP).
202 Devineni Seshagiri Rao v Government of AP, 2004 Cr LJ 52 (57) (AP) : 2003 (2) Andh LD (Cri) 637.
203 Annop v State of MP, 2006 Cr LJ 2061 (2062) : 2006 (2) MPLJ 12 (MP).
204 Paramjit Singh Sadana v State of AP, 2008 Cr LJ 3432 (3439) : 2008 (2) Andh LT (Cr) 339 (AP).
207 Shankar Sinha v State of Bihar, 1995 Cr LJ 3143 (Pat-DB) : 1994 (42) BLJR 966 .
208 Phool Singh v State of Rajasthan, 1993 Cr LJ 3273 (Raj) : 1993 (2) Andh LT (Cr) 22 .
209 KV Shiva Reddy v State of Karnataka, 2005 Cr LJ 3000 (Kant) : ILR 2005 Kant 4780 .
210 Sheonandan Paswan v State of Bihar, AIR 1983 SC 194 : (1983) 1 SCC 438 : 1983 Cr LJ 348 (374).
211 Susey Jose v G Janardhana Kurup, 1994 Cr LJ 2780 : 1995 (1) Crimes 720 (723) (Ker).
212 Abdul Khader Musliar v Govt. of Kerala, 1993 Cr LJ 1249 (1252) (Ker).
213 PC Narayana Kutty v State of Kerala, 1982 Cr LJ 2085 : 1982 Ker LT 605 ; Mary Josa v State of Kerala, 1997 Cr LJ 4678 (Ker).
(Prayer for appointment of Special Prosecutor of choice rejected).
214 Abdul Khader Musliar v Govt. of Kerala, 1993 Cr LJ 1249 (1252) (Ker).
215 Phool Singh v State of Rajasthan, 1993 (3) Crimes 404 : 1993 Cr LJ 3273 (Raj).
216 R Balakrishna Pillai v State of Kerala, 1999 Cr LJ 1286 (1291) (Ker-DB).

217 Susey Jose v G Janardhana Kurup, 1994 Cr LJ 2780 (2783) (Ker) : 1994 (2) Andh LT (Cr) 687 .
218 State of UP v Johri Mal, AIR 2004 SC 3800 : (2004) 4 SCC 714 ; Annop v State of MP, 2006 Cr LJ 2061 (2062) : 2006 (2) MPLJ
12 (MP).
219 Center for PIL v UOI, 2012 Cr LJ 1153 (SC) : 2011 (4) Scale 583 [State of UP v Johri Mal, AIR 2004 SC 3800 : (2004) 4 SCC
714 —Rel. on.].
220 Selvi J Jayalalithaa v State of Kanataka, 2014 Cr LJ 9 : (2014) 2 SCC 401 .
221 Selvi J Jayalalithaa v State of Kanataka, (2014) 2 SCC 401 : 2014 Cr LJ 9 , para 21 at p 15.
222 Selvi J Jayalalithaa v State of Kanataka, (2014) 2 SCC 401 : 2014 Cr LJ 9 , para 22 at p 15-16. [State of TN v K Shyam Sunder,
AIR 2011 SC 3470 : (2011) 8 SCC 737 ; MI Builders v V Radhey Shyam Shace, AIR 1999 SC 2468 : (1999) 6 SCC 464 ; Onakr
Lal Bajaj v UOI, AIR 2003 SC 2562 : (2003) 2 SCC 673 ; State of Karnataka v All India Manufactures Organisation, AIR 2006
SC 1846 : (2006) 4 SCC 683 ; AP Dairy Development Corp Federation v B Narasimha Reddy, AIR 2011 SC 3298 : (2011) 9 SCC
286 —Foll.].
223 Tera Chinnappa Reddy v Govt of Andhra Pradesh, 2014 Cr LJ 2071 (AP) : 2014 (2) Andh LT (Cr) 299 (AP).
224 Tera Chinnappa Reddy v Govt of Andhra Pradesh, 2014 Cr LJ 2071 (AP) : 2014 (2) Andh LT (Cr) 299 (AP).
225 P Jigesh v State of Kerala, 2013 Cr LJ 3250 (Ker.) : 2013 (1) Ker LT 681 .
226 See Harpal Singh v State of HP, AIR 1993 SC 2436 : (1993) 3 SCC 552 : 1993 Cr LJ 3140 (SC).
227 Jayendra Saraswati Swamigal v State of TN, 2008 Cr LJ 3877 (3881) : AIR 2008 SC 2997 : (2008) 10 Scale 323 : 2006 (1) Mad
LW (Cri) 122 reversed.
228 Tarak Nath Mukherjee v State of Bihar, 1992 (3) Crimes 737 (Pat-DB); Vijay Shankar Mishra v State of UP, 1999 Cr LJ 521 (All-
DB).
229 R N Tiwari v State of MP, 1990 Cr LJ 2468 (MP-DB).
230 KV Ramaniah v Special Public Prosecutor, 1961 Cr LJ 601 : AIR 1961 AP 190 .
231 Sheonandan Paswan v State of Bihar, AIR 1983 SC 194 : (1983) 1 SCC 438 : 1983 Cr LJ 348 , 374.
232 Shanti Swarup v Collector of Customs, Madras, 1988 Mad LW (Crl) 462 .
233 State (Delhi Admn.) v Dharam Pal, 1982 Cr LJ 1103 , 1105 (Del-DB).
234 Kerala v Kolarveetil Krishnan, 1982 Cr LJ 301 (Ker).

235 JK International v State (Govt. of NCT of Delhi), (2001) 3 SCC 462 : AIR 2001 SC 1142 : 2001 Cr LJ 1264 .
End of Document

[s 25] Assistant Public Prosecutors.-
Courts and Offices
Mmaneesh Bajpai
(1) The State Government shall appoint in every district one or more Assistant Public
Prosecutors for conducting prosecutions in the Courts of Magistrates.
236 [(1A) The Central Government may appoint one or more Assistant Public
Prosecutors for the purpose of conducting any case or class of cases in the Courts of
Magistrates.]
(2) Save as otherwise provided in sub-section (3), no police officer shall be eligible to be
appointed as an Assistant Public Prosecutor.
(3) Where no Assistant Public Prosecutor is available for the purposes of any particular
case, the District Magistrate may appoint any other person to be the Assistant Public
Prosecutor in charge of that case :
Provided that a police officer shall not be so appointed—
(a) if he has taken any part in the investigation into the offence with respect to which the
accused is being prosecuted; or
(b) if he is below the rank of Inspector.
Orissa.— The following amendments were made by Orissa Act 6 of 1995, section 2 (w.e.f.
10 March 1995).
Section 25(2).—In section 25 of the Code of Criminal Procedure, 1973 (2 of 1974), to

sub-section (2) of the following proviso shall be inserted namely:—
Provided that nothing in this sub-section shall be construed to prohibit the State
Government from exercising its control over Assistant Public Prosecutor through Police
Officers.
Uttar Pradesh.— The following amendments were made by UP Act No. 16 of 1976,
section 5.
Section 25(2).—In its application to the State of Uttar Pradesh to section 25(2) a proviso
added and be deemed always to have been so added:—
Provided that nothing in this sub-section shall be construed to prohibit the State
Government from exercising its control over Assistant Public Prosecutor through police
officers.
West Bengal.— The following amendments were made by WB Act 17 of 1985 section 3.

Section 25(3).—In its application to the State of West Bengal, for sub-section (3) of
section 25 following sub-section shall be substituted:—
(3) Where no Assistant Public Prosecutor is available for the purposes of any particular case,
any advocate may be appointed to be the Assistant Public Prosecutor in charge of that
case,—
(a) where the case is before the Court of a Judicial Magistrate in any area in a sub-division
wherein the headquarters of the District Magistrate are situated, by the District Magistrate;
or
(b) where the case is before the Court of a Judicial Magistrate in any area in a sub-division,
other than the sub-division referred to in clause (a), wherein the headquarters of the Sub-
divisional Magistrate are situated, by the Sub-divisional Magistrate; or
(c) where the case is before the Court of a Judicial Magistrate in any area, other than the area
referred to in clauses (a) and (b), by a local officer (other than a police officer) specially
authorised by the District Magistrate in this behalf.
Explanation.—For the purposes of this sub-section,—
(i) “advocate” shall have the same meaning as in the Advocates Act, 1961;
(ii) “local officer” shall mean an officer of the State Government in any area, other than the
area referred to in clauses (a) and (b).
The State Government is obliged to appoint one or more Assistant Public Prosecutors for conducting
prosecutions in every district before Courts of Magistrates. A police officer who (i) is not below the
rank of Inspector or (ii) who has not taken any part in the investigation of the offence is also eligible
for being appointed as Assistant Public Prosecutor where no Assistant Public Prosecutor is available.
The discretion under sub-section (3) should be so exercised by the Magistrate as to see that the State
case is properly conducted. Appointment of States Counsel at the behest of political leaders has
dangerous potentialities. Interest of the State cannot be safe in the hands of persons appointed on the
basis of political desires. Suitability of a counsel to be appointed as States Counsel has to be
determined by the District Magistrate in consultation with the District Judge, who will have to assess
the merits of a counsel to be appointed as a State’s Counsel to protect its interest.237
In State of Punjab v Brijeshwar Singh Chahal,238 the Supreme Court noted a practice in states of
Punjab and Haryana to appoint a large number of Government law officers. Criticising the practice,
the two-judge bench issued following directions:
1. The States of Punjab and Haryana shall undertake a realistic assessment of their need in each
category in which State counsel are proposed to be appointed.

2. Based on the assessment so made, the States shall constitute a Selection Committee with such
number of officers as the State Government may determine to select suitable candidates for
appointment as State counsel. The Secretary, Department of Law in each State shall be the Member-
Secretary of the Selection Committee.
3. The Committee shall on the basis of norms and criteria which the Government concerned may
formulate and in the absence of any such norms, on the basis of norms and criteria which the
Committee may themselves formulate conduct selection of law officers for the State and submit a
panel of names to the Chief Justice of Punjab and Haryana who may set up a Committee of Judges to
review the panel and make recommendations to the Chief Justice. The Chief Justice may based on any
such recommendations record his views regarding suitability of the candidates included in the panel.
The Government shall then be free to appoint the candidates having regard to the views expressed by
the Chief Justice regarding their merit and suitability. The procedure for assessment of merit of the
candidates and consideration by the High Court will apply in all cases where the candidates are
already working as State counsel but are being given an extension in the term of their appointment.
Having said that we must hasten to add that we are not interfering with the appointments already made
in the States of Punjab and Haryana which can continue to remain valid for the period the same has
been made but any extension or re-appointment shall go through the process indicated by us in the
foregoing paragraphs.
4. The writ-petitioners shall also be free to offer themselves for consideration before the Committee
appointed by the State Government in which event their claims may also be considered having regard
to their merits, suitability and performance as State counsel for the period they have worked as State
counsel.
5. We make it clear that nothing said by us in the foregoing paragraphs of this judgment shall affect
the right of the State Governments to appoint any person eligible for such appointment as the
Advocate General of the State in terms of Article 165 of the Constitution of India.
6. We further clarify that although we are primarily concerned with the procedure regarding selection
and appointment of law officers in the States of Punjab and Haryana and although we have confined
our directions to the said two States only yet other States would do well to reform their system of
selection and appointment to make the same more transparent, fair and objective if necessary by
amending the relevant LR Manuals/Rules and Regulations on the subject.
Section 25 does not say like section 24 that the Assistant Public Prosecutor should also be a practising
advocate. In fact under section 25, under certain circumstances even a police officer can be appointed

as Assistant Public Prosecutor.239 Where the Police Prosecutors functioning under the control of the
Inspector General of Police are appointed as Assistant Public Prosecutors, they cease to be the
personnel of the Police Department and cannot be allowed to continue to function under the control of
its head, the Inspector General of Police.240 The validity of a GO appointing an employee of Municipal
Corporation as Assistant Public Prosecutor cannot be questioned under section 482.241
[s 25.3] “Available” (sub-section (3)).—
The word “available” may mean either not appointed and, therefore, not be available, or not an
available because he is otherwise engaged eg before another Magistrate, or is absent on leave, or has
resigned. The Calcutta High Court, in a case under the old Code where the word used was “absent”,
held that absence does not include a situation where a Public Prosecutor is appointed but is not
available to conduct the case. In such a case the Additional District Magistrate could not appoint a
lawyer on behalf of the State and call him Public Prosecutor.242 The situation seems to be covered by
the use of words “available for the purposes of any particular case.”
[s 25.4] Duties of Assistant Public Prosecutor.—
The Assistant Public Prosecutors are appointed by the Government only for conducting prosecutions
in the Courts and they are full-time Government Servants, they are not advocates, or legal
practitioners entitled to practise as advocates, and their duty, as their designation itself mentions, is
only to conduct prosecutions on behalf of the State. They have no right to practise or take briefs to
defend the accused in criminal cases. The permission granted by a Magistrate permitting the Assistant
Public Prosecutor to appear for the accused was without jurisdiction.243
[s 25.5] Duty to Court.—
The Public Prosecutor is bound to satisfy himself that there is a justification to seek an order of
remand to judicial custody and assist the Court.244
[s 25.6] Duty to conduct the case.—
Where the Magistrate took cognizance of an offence under section 190(1)(b) and (c) despite the
cancellation report submitted by the police, the Assistant Public Prosecutor, is bound to conduct the
case as the refusal to do so would amount to contempt of Court.245
[s 25.7] Case and Counter.—
Merely because two prosecutions have been initiated against rival groups arising out of self same
occurrence, there is no bar for the same Assistant Public Prosecutor conducting both the cases.246
The Public Prosecutor is an officer of the court. He has to assist the court in dispensing justice.247
[s 25.8] Assistant Public Prosecutor cannot appear as defence counsel.—
The Assistant Public Prosecutor as such cannot appear on behalf of the accused. It is also obvious that
the Assistant Public Prosecutor having suspended his practice, cannot appear as defence counsel. A

private pleader as per the definition of rule 69-A of the Madras Criminal Rules of Practice is a person
other than the legal practitioner. Assistant Public Prosecutor who is a legal practitioner and who has
only suspended practice cannot be considered as a person other than legal practitioner, so as to appear
with the mantle of a private pleader within the meaning of rule 69-A of the Madras Criminal Rules of
Practice.248
A Public Prosecutor is not competent to act as a defence counsel a private criminal complaint against
police officers.249
[s 25.9] Prevention of Food Adulteration Act.—
Where in respect of an offence under the Prevention of Food Adulteration Act, the case was conducted
by the Assistant Public Prosecutor, who had no authority to conduct the case, the trial was vitiated.250
Where an Assistant Police Prosecuting Officer was appointed in the year 1956 by the Inspector
General of Police, he would be deemed to have been appointed under section 484(2)(b) of the new
Code, and he is not a “Police Officer” within the meaning of this section and as such he is eligible to
be appointed as Assistant Public Prosecutor.251
236 Ins. by the Code of Criminal Procedure (Amendment) Act, 1978 (45 of 1978), section 9.
237 Sangram Kesari Pande v State of Orissa, 2000 Cr LJ 1625 (1628) (Ori).
238 State of Punjab v Brijeshwar Singh Chahal, (2016) 6 SCC 1 : AIR 2016 SC 1629 : 2016 (3) Scale 535 .
239 K Tirupathi v Govt. of AP, 1983 Cr LJ 1243 (AP).
240 SB Shahane v State of Maharashtra, AIR 1995 SC 1628 : AIR 1995 SCW 2561 : 1995 SCC (Cri) 787 (794) : 1995 Supp (3) SCC
37 .
241 Shankar Rao v Mohd Mustafer, 1983 Cr LJ 30 (AP).
242 Raj Kishore Rabidas v The State, AIR 1969 Cal 321 : 1969 Cr LJ 860 .
243 Kannappan v Abbas, 1985 LW (Crl) 159 Mad.
244 GK Moopanar v State, 1990 Mad LW (Crl) 113 (DB) : 1990 Cr LJ 2685 .

245 State v Bhim Singh, 1978 Cr LJ 1041 (HP-DB).
246 Basanta Kumar Paikray v Bharat Kumar Mangaraj, 1988 (2) Crimes 274 , 276 (Ori).
247 State of Maharashtra v Editor, Nagpur Times, 1991 (1) Crimes 37 (Bom-DB).
248 Loganathan v Raj Mohan, 1988 (2) Crimes 846 (Mad).
249 Kanappan v Abbas, 1987 (1) Crimes 204 (Mad).
250 Murlidhar v State of Rajasthan, 1988 (1) Crimes 432 (Raj).
251 Baban v Sambamurthy, 1980 Cr LJ 248 (AP-DB).
End of Document

[s 25A] Directorate of Prosecution.-
Courts and Offices
Mmaneesh Bajpai
252 [s 25A] Directorate of Prosecution.-
(1) The State Government may establish a Directo-rate of Prosecution consisting of a

Director of Prosecution and as many Deputy Directors of Prosecution as it thinks fit.
(2) A person shall be eligible to be appointed as a Director of Prosecution or a Deputy
Director of Prosecution, only if he has been in practice as an advocate for not less than
ten years and such appointment shall be made with the concurrence of the Chief Justice
of the High Court.
(3) The Head of the Directorate of Prosecution shall be the Director of Prosecution, who
shall function under the administrative control of the Head of the Home Department in
the State.
(4) Every Deputy Director of Prosecution shall be subordinate to the Director of
Prosecution.
(5) Every Public Prosecutor, Additional Public Prosecutor and Special Public Prosecutor
appointed by the State Government under sub-section (1), or as the case may be, sub-
section (8), of section 24 to conduct cases in the High Court shall be subordinate to the
Director of Prosecution.
(6) Every Public Prosecutor, Additional Public Prosecutor and Special Public Prosecutor
appointed by the State Government under sub-section (3), or as the case may be, sub-
section (8), of section 24 to conduct cases in District Courts and every Assistant Public
Prosecutor appointed under sub-section (1) of section 25 shall be subordinate to the
Deputy Director of Prosecution.
(7) The powers and functions of the Director of Prosecution and the Deputy Directors of
Prosecution and the areas for which each of the Deputy Directors of Prosecution have
been appointed shall be such as the State Government may, by notification, specify.
(8) The provisions of this section shall not apply to the Advocate General for the State while
performing the functions of a Public Prosecutor.]
[s 25A.1] STATE AMENDMENTS
Karnataka.—The following amendments were made by Karnataka Act 39 of 2012,

section 2 (w.e.f. 24 October 2012).
Section 25A.—In its application to Karnataka in section 25A,—
(a) (2) for sub-section (2), the following shall be substituted, namely:—
The post of Director of prosecution and Government litigations, or a Deputy Director

of Prosecution and other cadres shall be filed in accordance with the Cadre and
Recruitment Rules framed under the Karnataka State Civil Services Act, 1978
(Karnataka Act 14 of 1990).
(b) (5) for sub-section (5), the following shall be substituted, namely:—

Every Public Prosecutor, Additional Public Prosecutor appointed by the State

Government from the cadre of Prosecutors recruited under the recruitment rules
framed by the Government under the Karnataka State Civil Services Act, 1978 shall be
subordinate to the Director of prosecution and Government litigations and every Public
Prosecutor, Additional Prosecutor and Special Prosecutor appointed under sub-section
(8) of section 24 shall be subordinate to the Advocate General.
(c) In sub-section (6), for the words “Deputy Director of Prosecution” the words “Director of
Prosecution” shall be substituted.
Madhya Pradesh.— The following amendments were made by Madhya Pradesh Act 18 of
2014, section 3, published in MP Rajpatra (Asadharan), dated 1 October 201, pp 936(1-2).
For section 25A of the principal Act, the following section shall be substituted, namely:—
25A. Directorate of Prosecution.—(1) The State Government may establish a Directorate of

Prosecution consisting of a Director of Prosecution and as many Additional Directors of
Prosecution, Joint Directors of Prosecution, Deputy Directors of Prosecution and Assistant
Directors of Prosecution and such other posts as it thinks fit.
(2) The post of Director of Prosecution, Additional Directors of Prosecution, Joint Directors of
Prosecution, Deputy Directors of Prosecution and Assistant Directors of Prosecution and other
post shall be filled in accordance with the Madhya Pradesh Public Prosecution (Gazetted)
Service Recruitment Rules, 1991, as amended from time to time.
(3) The head of the Directorate of Prosecution shall be the Director of Prosecution, who shall
function under the administrative control of the head of the Home Department in the State.
(4) Every Additional Director of Prosecution, Joint Director of Prosecution, Deputy Director of
Prosecution and Assistant Director of Prosecution and other posts specified in sub-section (2)
shall be subordinate to the Director of Prosecution.
(5) Every Public Prosecutor and Additional Public Prosecutor appointed under the Madhya
Pradesh Public Prosecution (Gazetted) Service Recruitment Rules, 1991, shall be subordinate
to the Director of Prosecution and every Public Prosecutor and Additional Public Prosecutor
appointed under sub-section (1) of section 24 and every Special Public Prosecutor appointed
under sub-section (8) of section 24 to conduct cases in the High Court shall be subordinate to
the Advocate General.
(6) Every Public Prosecutor and Additional Public Prosecutor appointed under sub-section (3)
of section 24 and every Special Public Prosecutor appointed under sub-section (8) of section
24 to conduct cases in District Courts shall be subordinate to the District Magistrate.
(7) The powers and functions of the Director of Prosecution shall be such as the State

Government may, by notification, specify.
[s 25A.2] Legislative changes in section 25A—CrPC (Amendment) Act, 2005 (25 of 2005).—
This section has been inserted by CrPC Amendment Act, 2005 (w.e.f. 23 June 2006).
[s 25A.3] Scope of section 25A.—
This section empowers the State Government to establish the Directorate of Prosecution. The Director
of the Prosecution shall function under the administrative control of the Head of the Home
Department in the State.
This section has come into force w.e.f. 23 June 2006 vide Notification No. S.O. 923(E), dated 21 June
2006.
Although section 25A of the Code of Criminal Procedure, 1973 provides that the essential
qualification to hold the post of Director and Deputy Director of Prosecution should be not less than
10 years of practicing as an Advocate, the State Government is not precluded from laying down other
necessary conditions for such appointment, having reasonable nexus to the post.253 Where the
Government notification provided that in making appointment preference would be given to those
having experience as a practising prosecution lawyer, held the basic qualifications laid down by
section 25A were not changed, hence the Government notification was not invalid.254
See the undermentioned case.255
The validity of appointment of Director General of Prosecution was challenged on the ground that the
same was not in accordance with section 25A which enables only the Government to constitute
Directorates of Prosecution. It was held by a Division Bench that Directorate as contemplated in
section 25A provides for hierarchy of officers. The State Government is left with complete discretion
under section 25A to start a Directorate by framing rules there under and allot funds and get
administrative sanction. Until then, the Directorate constituted under Article 162 would necessarily
continue. The Directorate constituted 30 years prior to the introduction of section 25. A had worked
systematically since then. It was further held that though Directorate as per section 25-A of Code of
Criminal Procedure, 1973 is desirable, it would not affect the validity of appointment of Director
General of Prosecution.256

SO 923(E), dated 21 June 2006).
253 Ranjit Debnath v State of Tripura, 2008 Cr LJ 250 (252) : (2008) 5 GLR 586 (Gauh) : 2007 (4) GLT 438 .
254 Ranjit Debnath v State of Tripura, 2008 Cr LJ 250 (252) : (2008) 5 GLR 586 (Gauh) : 2007 (4) GLT 438 .
255 Jiwan Lal Sharma v SS Parmar, 2007 Cr LJ (NOC) 793 : 2007 (1) Shim LC 58 (HP-DB). (As no candidate having three years’
service in the cadre of Joint Directors available, Court directed that in public interest incumbent—Joint Director be promoted as
Director of Prosecution).
256 EA Thankappan v State of Kerala, 2012 Cr LJ 1316 (Ker) (DB) : ILR 2011 (4) Ker 634 .
End of Document

[s 26] Courts by which offences are triable.-Subject to the other provisions of this
Code—
Procedure, 21st ed > THE CODE OF CRIMINAL PROCEDURE > CHAPTER III Power of Courts
CHAPTER III POWER OF COURTS
This chapter deals with three topics, viz. (1) Courts by which offences are triable; (2) the sentences which
these courts can pass including passing of sentence in case of conviction of several offences at one trial;
and (3) modes of conferring of powers on, and withdrawal of powers from, persons or officials by the
High Court and the State Government. The last section of the Chapter deals with exercise of powers of
Judges and Magistrates by their successors in office.
[s 26] Courts by which offences are triable.-Subject to the other provisions of this
Code—
(a) any offence under the Indian Penal Code (45 of 1860) may be tried by—
(i) the High Court, or
(ii) the Court of Session, or
(iii) any other Court by which such offence is shown in the First Schedule to be triable:
1 [ Provided that any 2[offence under section 376, section 376A, section 376B, section
376C, section 376D or section 376E of the Indian Penal Code (45 of 1860)] shall be tried as
far as practicable by a Court presided over by a woman.]
(b) any offence under any other law shall, when any Court is mentioned in this behalf in
such law, be tried by such Court and when no Court is so mentioned, may be tried by—
(i) the High Court, or
(ii) any other Court by which such offence is shown in the First Schedule to be triable.
Uttar Pradesh.— The following amendments were made by U.P. Act 1 of 1984, section 6
(w.e.f. 1 May 1984).
Section 26.—In section 26 for clause (b) the following clause shall be substituted:—
Mmaneesh Bajpai
[s 26] Courts by which offences are triable.-Subject to the other provisions of this Code—
(b) any offence under any other law may be tried—
(i) when any Court is mentioned in this behalf in such law, by such Court, or by any Court
superior in rank to such Court, and
(ii) when no Court is so mentioned, by any Court by which such offence is shown in the First
Schedule to be triable, or by any Court superior in rank to such Court.
[s 26.2] Legislative Changes in section 26—CrPC Amendment Act, 2008 (5 of 2009).—
In section 26, in clause (a), a new proviso has been added, by section 4 of the CrPC (Amendment)
Act, 2008 (5 of 2009). section 26 relates to Courts by which offences are triable. A proviso has been
inserted in clause (a) of the said section so as to provide that any offence under section 376 and
sections 376A to 376D of the Indian Penal Code, 1860 shall be tried as far as practicable by a court
presided over by a woman. (Vide Notes on Clauses).
Offences are divided into two categories, viz. offences under the Indian Penal Code and offences
under any other law. As far as offences under the Penal Code are concerned they are triable by the
High Court, the court of Session or any other Court shown in the First Schedule to this Code.
The section is a general section and is subject to the other provisions of the Code. The provision as to
the other Courts does not cut down or limit the jurisdiction of the High Court or the court of Session.3
This section begins with the clause “subject to the other provisions of this Code.” This means that the
section and the First Schedule referred to therein are controlled by the other provisions of the Code.4
Sub-section (b)(i) merely empowers the High Court, when no Court is mentioned for any offence
under any law other than the Indian Penal Code, to try such offences. Reading it with section 4(2) of
the Code, it is clear that this section does not intend that the High Court can take cognizance of the
offence straight off and try the accused itself, without following the procedure laid down in the Code.5
Where a case in which accused is charged for offence under section 212, Indian Penal Code, 1860
triable by Magistrate is committed by the Magistrate to the court of Sessions to be tried along with
other accused, there is no legal bar in the case being tried by the Sessions Judge in view of section 26
read with section 193 Code of Criminal Procedure, 1973.6
The words of sub-section (1) of section 2(b) are peremptory. As provided subject to the other
provisions of the Code, any offence under any other law, shall be tried by the court when such Court is
mentioned in that law. A case under section 15(1) of the UP Private Forests Act, 1948, therefore, is
triable only by the two Courts named therein namely, Magistrates of the Second and the Third Classes

and not by any other Magistrate.7
A Sessions Judge has the power to try any offence under the Indian Penal Code.8 Cross cases to avoid
conflicting judgments should be heard by the same Court, the one pending before the Magistrate
would be transferred to the court of Session seized with another case.9 When the accused persons
themselves failed to draw attention of the Trial Court about pendency of the counter case, and did not
prefer any application for holding trial of this case and counter case in same Court, after disposal of
the case the accused cannot claim that they were seriously prejudiced.10
Where the alleged acts of the accused constitute offences both under the Indian Penal Code and the
Special Act Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the
cognizance of the offences by the Judicial Magistrate is not valid.11
Cases under sections 25(1) (AA), 26(2) and 26(3) of The Indian Arms Act, where punishment is death,
imprisonment for life or exceeding seven years would be committed to the court of Sessions.12
[s 26.4] Effect of finding of Criminal Court on others.—
Since the decision of a Civil or Criminal Court of competent jurisdiction binds quasi-judicial
authorities in matters pertaining to identical questions, the order of the Criminal Court acquitting the
owner of the offence for using the vehicle for transporting rice without a valid permit would bind the
Regional Transport Officer functioning under the Motor Vehicles Act, 1939.13
See also commentary under section 27 infra.
[s 26.5] Special Judge.—
The Special Judge can try an accused for offence under section 302 Indian Penal Code, 1860, if the
case is transferred to him by a Criminal Court and he does not acquire jurisdiction to try other cases on
a mere requisition (sections 2, 7, 8, 10 UP Gangsters and Anti Social Activities Prevention Act,
1986).14
[s 26.6] Trial.—
The word “trial” is not defined in the Code. However, trial has always been understood to mean the
proceeding which commences when the case is called on with the Magistrate on the Bench, the
accused on the dock and the representatives of the prosecution and defence, if the accused is defended,
present in court for the hearing of the case.15

Offences under The Factories Act, 1948, could be tried by a Magistrate of the First Class and
conviction recorded by him on the basis of evidence recorded by Second Class Magistrate is illegal
(section 105(2) of the Factories Act).16
[s 26.7] Political persuasion of a prosecutor.—
It shall not be said that in every case where one of the parties involved is of a particular political
persuasion, no Public Prosecutor, who shares the particular persuasion, shall be allowed to conduct the
prosecution. To accept such a state of affairs, as an invariable rule, would not only be contrary to
sound practice, but would seriously offend the dignity of the Bar as such.17
[s 26.8] Remuneration.—
Remuneration of a public prosecutor must be borne by the State Government.18
[s 26.9] Trial of offence under Drugs & Cosmetics Act.—
An offence under section 27(b) of the Drugs and Cosmetics Act, 1940, as it stands amended by the
provisions of Prevention of Food Adulteration Act, Drugs and Cosmetics Act (West Bengal
Amendment) Act, 1973, section 5, clause (iii), can be tried by Court of Session which is the only
forum for the trial of the same.19
[s 26.10] Special Court (Economic Offences).—
The Special Court (Economic Offences) created by proviso to section 11(1) has jurisdiction to try
offences under the Indian Penal Code which it otherwise possesses under section 26, Code of
Criminal Procedure, 1973.20
[s 26.11] Proviso to sub-section (a)(iii).—
With the insertion of a Proviso to sub-section (a) (iii), a duty has been imposed on the administrative
side of the courts to ensure that the offences prescribed under sections 376, 376-A, 376-B, 376-C and
376-D are tried, as far as practicable, by a court which is presided over by a lady officer. The purpose
behind this newly inserted proviso is to extend a sense of protection to the prosecutrix who may not be
comfortable to narrate the trauma suffered by her during the commission of the offence.
2 Subs. by the Criminal Law (Amendment) Act, 2013 (13 of 2013), section 11, for the words “offence under section 376 and sections
376A to 376D of the Indian Penal Code” (w.e.f. 3 February 2013).
3 Queen Empress v Kharga, (1886) 8 All 665 : (1886) ILR (8) All 665.

4 Budhan Choudhry v State of Bihar, AIR 1955 SC 191 : 1955 Cr LJ 374 , 377.
5 Harish Chandra v Kavindra Narain, (1937) All 220 : AIR 1936 All 830 .
6 Sujith v State of Kerala, 2008 Cr LJ 824 (835) (DB) : 2007 (4) Ker LT 987 (Ker).
7 State of UP v Sabir Ali, AIR 1964 SC 1673 : 1964 (2) Cr LJ 606 , 608.
8 Sudhir v State of MP, AIR 2001 SC 826 : (2001) 2 SCC 688 : 2001 Cr LJ 1072 (1075).
9 Vijaykumar F Rathod v State of Maharashtra, 2007 Cr LJ 129 : 2006 (3) Cur Cri R 395 (Bom).
10 Ananta Deb Singha Mahapatra v State of WB, 2007 Cr LJ 1705 (1715) (DB) : 2006 (2) Cal Cri LR 672 (Cal).
11 Udhaba v Gola Bindhani, 78 (1994) CLT 865 : 1994 Cr LJ 3815 (3818) (Ori); Re, Director General of Prosecution, 1993 Cr LJ
760 (Ker).
12 Faujdari Mistry v State of Bihar, (2002) 3 BLJ 330 : (2002) 3 Pat LJR 545 : 2002 Cr LJ 4821 (4822, 4823) (Pat).
13 Muthaya Moily v Dakshina Kannada, Mangalore, AIR 1981 Kant 244 : 1981 (1) Kar LJ 521 .
14 Devi Bux Singh v State of UP, 1990 Cr LJ 2140 (All-DB).
15 BD Jhunjhunwalla v State, 1977 Cr LJ 1390 (Ori) : 43 (1977) CLT 440 .
16 BD Jhunjhunwalla v State, 1977 Cr LJ 1390 (Ori).
17 PG Narayanankutty v State of Kerala, 1982 Cr LJ 2085 (Ker).
18 PG Narayanankutty v State of Kerala, 1982 Cr LJ 2085 (Ker).
19 State v Bejoy Kr Chatterjee, 1977 Cr LJ 1503 (Cal-DB).
20 Dy Chief Controller of Imports & Exports v Roshanlal Agarwal, 2003 Cr LJ 1698 (1699, 1700) : AIR 2003 SC 1900 : (2003) 4
SCC 139 : (2003) 2 Crimes 43 .
End of Document

[s 27] Jurisdiction in the case of juveniles.-
Any offence not punishable with death or imprison-ment for life, committed by any person who
at the date when he appears or is brought before the Court is under the age of sixteen years,
may be tried by the Court of a Chief Judicial Magistrate, or by any Court specially empowered
under the Children Act, 1960 (60 of 1960) or any other law for the time being in force providing
for the treatment, training and rehabilitation of youthful offenders.
Under the Old Code, 1898, the offence was triable by a District Magistrate or a Chief Presidency
Magistrate. The offence is triable by a Chief Judicial Magistrate. The age limit has been raised from
15 years to 16 years, to fit in with the provisions of the Children Act, 1960.
Where there are special Acts, such as the Bombay Children Act, Bom LXXI of 1948, and those Acts
specify the court, then that court will try the youthful offenders. Thus, the court may be the court of
Chief Judicial Magistrate, or the court empowered by the Children Act, 1960, or by any other State
Act. The offence should not be one punishable with death or imprisonment for life.
This section, corresponding to section 29B of the old Code, does not take away the powers of the State
Legislature to enact a measure like the Madras Children Act, 1920. Jurisdiction to try children for
offences punishable with life imprisonment or death may be conferred on Children’s Court by a State
law.21
Mmaneesh Bajpai
The Courts mentioned in section 26 and this provision exercise concurrent jurisdiction in respect of
offences committed by juvenile offenders. Jurisdiction of Courts in section 26 to try those offences is
not taken away by this provision.22
Where the High Court found the accused as juvenile merely on the basis of entry mentioned in
statement under section 313, Code of Criminal Procedure, 1973, the finding would be set aside.23
Belated plea that the accused is juvenile would not be considered.24
Where Juvenile Court has not been established, and the juvenile offender is charged of the offence of
murder, the offender has to be tried by the Sessions Judge or the Additional Sessions Judge.25
Whenever, a question regarding the age of the “child” is raised before the Children Court, a proper
enquiry should be made and the actual age of the child should be determined, particularly in cases
involving commission of offence of a grievous nature.26 A Juvenile Court constituted under the MP
Bal Adhiniyam, 1970, is incompetent to deal with cases involving offences to which the provisions of
the Code apply and which are exclusively triable by the court of Sessions and which are punishable
with death or imprisonment for life.27
[s 27.3] Effect of Juvenile Justice Act, 1986—Repealed by the Juvenile Justice (Care and Protection
of Children) Act, 2000, Now Juvenile Justice (Care and Protection of Children) Act, 2015.—
The Juvenile Justice Act, 1986, was a complete Code in itself and had a sweepingly overriding effect
on any other enactment of the State Legislature or Parliament, viz., the “Code” regarding
inquiry/proceedings or a trial against a delinquent juvenile on any criminal charge.28
A Magistrate not empowered to exercise the powers of the children’s Court, has no power to deal with
a delinquent child. No Magistrate can commit a child offender for trial before a Sessions Court.29
Later the Juvenile Justice Act, 1986 was replaced by The Juvenile Justice (Care and Protection of
Children) Act, 2000 which has now been replaced by Justice (Care and Protection of Children) Act,
2015. Section 27 was held not to be inconsistent with section 6 of the Juvenile Justice (Care and
Protection of Children) Act, 2000.30
[s 27.4] Trial of children.—
A person who is under 16 years of age, and accused of an offence under section 302 Indian Penal
Code, is entitled to the benefit of the Haryana Children’s Act, 1974. Therefore, the trial of such person
under the Code is illegal.31 The Sessions Court has no jurisdiction to try offences committed by
juveniles under the Indian Penal Code along with offences under the Child Marriage Restraint Act,
1929.32
[s 27.5] Power to establish Juvenile Court.—

This section does not take away the powers of the State Legislature to enact a measure like the Madras
Children Act, 1920. This section does not take away the power of a Juvenile Court established by such
local law to try juvenile offenders even for an offence punishable with death or imprisonment for
life.33
[s 27.6] Juvenile Courts.—
Exclusive jurisdiction of Juvenile Courts to try a child under 16 years for all offences except those
punishable with death or imprisonment continues after the enforcement of the new Code.34
Joint trial of a juvenile with an adult accused is illegal.35
21 Raghbir v State of Haryana, 1981 Cr LJ 1497 : AIR 1981 SC 2037 : (1981) 4 SCC 210 .
22 State of HP v Kartar Singh, 1983 (1) Crimes 853 (DB).
23 State of Haryana v Balwant Singh, 1993 SCC (Cri) 251 : 1993 (1) SCC Supp 409.
24 Jogi v State of UP, 2005 Cr LJ 3216 (All-DB).
25 Abdul Mannan v State of WB, (1996) 1 SCC 665 : 1995 (4) Crimes 721 (SC).
26 Santosh v State of Rajasthan, 1997 (1) Crimes 119 (121) (Raj).
27 State of MP v Ramesh Nai, 1975 Cr LJ 713 (MP-FB).
28 Daljit Singh v State of Punjab, 1992 Cr LJ 1051 : 1992 (1) Crimes 143 , 147 (P&H); Sangita R Jain v SA Dwivedi, 1996 Cr LJ 24
(26) (Bom).
29 State of Kerala v Ariffa, 1985 Cr LJ 1290 : 1985 (1) Crimes 943 , 947 (Ker-DB).
30 State of Karnataka v Harshad, 2005 Cr LJ 2357 (Kant-DB) : ILR 2005 KAR 1572 .
31 Raghbir v State of Haryana, AIR 1981 SC 2037 : (1981) 4 SCC 210 : 1981 Cr LJ 1497 (SC); Gangu Singh v State, 2005 Cr LJ
1864 (U’Chal-DB).

32 State of Gujarat v Fulsinh, AIR 1971 Guj 1 : 1971 Cr LJ 41 , 46.
33 Sessions Judge, Tiruneveli v Perumal, 1974 Cr LJ 261 (Mad-DB).
34 Devisingh v State of MP, 1978 Cr LJ 585 (MP-FB) : AIR 1978 MP 100 .
35 Robin Bapari v State, 1986 Cr LJ 381 (Cal).
End of Document

[s 28] Sentences which High Courts and Sessions Judges may pass.-
(1) A High Court may pass any sentence authorised by law.

(2) A Sessions Judge or Additional Sessions Judge may pass any sentence authorised by law;
but any sentence of death passed by any such Judge shall be subject to confirmation by
the High Court.
(3) An Assistant Sessions Judge may pass any sentence authorised by law except a sentence
of death or of imprisonment for life or of imprisonment for a term exceeding ten years.
[s 28.1] Scope and Application of section 28.—
The Code first enumerates the Courts by which different offences can be tried, and then proceeds to
define the limits of sentences which they can pass. These limits show the maximum sentence which a
court can pass; they have nothing to do with the maximum penalty provided for an offence. The High
Court can pass any sentence provided by law; so also can a Sessions Judge or Additional Sessions
Judge, but any sentence of death passed by the latter is subject to confirmation by the High Court. An
Assistant Sessions Judge can pass any sentence short of a sentence of death, imprisonment for life or
imprisonment exceeding ten years. Where the case falls just short of the rarest of the rare cases, the
court may sentence the accused to imprisonment for the rest of his life or a term exceeding 14 years.36
[s 28.2] Imposition of sentence lesser than the minimum.—
The imposition of lesser than the minimum prescribed by the statute is illegal.37
[s 28.3] Principles as to punishment.—
Sentencing involves an element of guessing but, often settles down to practice obtaining in a particular
court with inevitable differences arising in the context of the times and events in the light of social
Mmaneesh Bajpai
imperatives. It is always a matter of judicial discretion, subject to any mandatory minimum prescribed
by law.
In judging the adequacy of a sentence, the nature of the offence, the circumstances of its commi-ssion,
the age and character of the offender, injury to individuals or to society, effect of the punishment to
the offender, eye to correction and reformation of the offender, are some amongst many other factors
which would be ordinarily taken into consideration by Courts.38
[s 28.4] “Pass any sentence”.—
Power of the Appellate Court to pass any sentence must be measured by the power of the court from
whose judgment an appeal has been brought before it.39
On the question of powers of the Sessions Judge and Additional Sessions Judge, it was held by Full
Bench of Kerala High Court that where a case falls short of the rarest of rare category, the Sessions
Judges have no power to impose harsher variety of life sentence ie imprisonment for the rest of
accused’s life or imprisonment exceeding 14 years without remission or commutation. It was held that
the area of remission, commutation etc. are not within the purview of Sessions Court and only
Constitutional Court can exercise such powers of imposing harsher variety of life sentence.40
[s 28.5] Sentencing policy.—
The question of sentence is always a difficult and complex question. The accused persons may be
hardened or professional criminals, or they may have taken to crime only recently, or may have
committed the crime under the influence of bad company or due to provocative wrongful action
seriously injuring the feelings and sentiments of the accused. In considering the adequacy of the
sentence, which should neither be too severe nor too lenient, the court has to keep in mind the motive
and magnitude of the offence, the circumstances in which it was committed and the age and character
(including antecedents) and station in life of the offender.41
Long pendency of matter by itself would not justify lesser sentence.42
Sentencing is always a matter of judicial discretion subject to any mandatory minimum prescribed by
law. In judging the adequacy of a sentence the nature of the offence, the circumstances of its
commission, the age and character of the offender, injury to individuals, to society, effect of the
punishment on the offender, possibility of correction and reformation are some of the factors which
would ordinarily be taken into consideration by Courts.43
Whether a person of depraved morals should be allowed to continue in the noble profession of

medicine, is a matter for consideration of the Indian Medical Council and not of the Sessions Judge.44
While awarding punishment need for rehabilitation and deterrence have to be kept in view.45
[s 28.6] Power of Assistant Sessions Judge.—
The default imprisonment would be in excess of any other imprisonment to which the person may
have been sentenced or to which he may be liable under a commutation of a sentence. The Assistant
Sessions Judge will be competent to sentence an accused to undergo imprisonment for ten years.46
Section 28 of the Code of Criminal Procedure, 1973 imposes restrictions on the powers of Assistant
Sessions Judge to impose punishment exceeding 10 years imprisonment. Hence Assistance Sessions
Judge cannot impose sentence of life imprisonment or imprisonment exceeding 10 years. There is no
provision in the Code of Criminal Procedure, 1973 permitting assistant Sessions Judge to make an
application for transfer of case to Sessions Judge on the ground that in the facts and circumstances of
the case higher sentence is to be awarded. Though Sessions Judge has power to withdraw a case from
the Assistant Sessions Judge, but the Sessions Judge cannot withdraw the case once trail begins. In the
case of Magistrates, there is a specific provision in section 325 of the Code which empowers the
Magistrate to transfer the case to the Chief Judicial Magistrate if he is of the opinion that punishment
of more than 3 years may be awarded in the facts and circumstances of the case, but there is no similar
provision in the Code in the case of Assistant Sessions Judge. Hence, it was held that section 28 will
have to be construed as a provision which imposes bar on Sessions Judge to assign cases to Assistant
Sessions Judge where sentence of imprisonment above 10 years can be awarded.47
36 Swamy Shraddananda v State of Kerala, 2008 AIR SCW 5110, 5136.
37 Kosal v State, 1996 Cr LJ 3800 (Mad-DB); See also State of MP v Balu, (2005) 1 SCC 108 : 2005 Cr LJ 335 (338) (SC).
38 Ramashraya Chakravarti v State of MP, AIR 1976 SC 392 (335) : (1976) 1 SCC 281 : 1976 Cr LJ 334 .
39 Jagat Bahadur v State of MP, AIR 1966 SC 945 : (1966) 2 SCR 822 : 1966 Cr LJ 709 .
40 State of Kerala v Unni, 2013 Cr LJ 2819 (Ker) (FB) : ILR 2013 (1) Kerala 637 .
41 Modi Ram v State of MP, AIR 1972 SC 2438 , at p 2439; Chacko, 1971 Cr LJ 1251 ; State of MP v Ghanshyam Singh, AIR 2003
SC 3191 : (2003) 4 Crimes 6 : (2003) 8 SCC 13 : 2003 Cr LJ 4339 (4342) (SC).

42 State of MP v Ghanshyam Singh, 2003 Cr LJ 4339 (4342) : AIR 2003 SC 3191 : (2003) 4 Crimes 6 : (2003) 8 SCC 13 .
43 Ramashraya Chakravarti, 1976 Cr LJ 334 : AIR 1976 SC 392 : (1976) 1 SCC 281 ; State of MP v Ghanshyam Singh, AIR 2003
SC 3191 : (2003) 4 Crimes 6 : (2003) 8 SCC 13 : 2003 Cr LJ 4339 (4342) (SC).
44 AN Mukerji v State, AIR 1969 All 489 : 1969 Cr LJ 1203 , 1216.
45 Nadella Venkatakrishna Rao v State of AP, AIR 1978 SC 480 : (1978) 1 SCC 208 : 1978 Cr LJ 641 .
46 P Balaraman v State, 1991 Cr LJ 166 , 174 (Mad).
47 Prabhakar L Pawar v State of Maharashtra, 2012 Cr LJ 4726 (Bom) (DB) : 2013 (4) Bom CR (Cri) 179 .
End of Document

[s 29] Sentences which Magistrates may pass.-
(1) The Court of a Chief Judicial Magistrate may pass any sentence authorised by law
except a sentence of death or of imprisonment for life or of imprisonment for a term
exceeding
(2) The Court of a Magistrate of the first class may pass a sentence of imprisonment for a
term not exceeding three years, or of fine not exceeding 48[Rs 10000/-], or of both.
(3) The Court of a Magistrate of the second class may pass a sentence of imprisonment for a
term not exceeding one year, or of fine not exceeding 49[Rs 5000/-], or of both.
(4) The Court of a Chief Metropolitan Magistrate shall have the powers of the Court of a
Chief Judicial Magistrate and that of a Metropolitan Magistrate, the powers of the Court
of a Magistrate of the first class.
Maharashtra.— The following amendments were made by Maharashtra Act 27 of 2007

(w.e.f. 1 December 2007). Section 29-A.—In its application to the State of Maharashtra, in
section 29—
(a) in sub-section (2) for the words “Rs 10000/-” the words “Rs 50000/-” shall be substituted.
(b) in sub-section (2) for the words “Rs 5000/-” the words “Rs 10000/-” shall be substituted.
Punjab.—The following amendments were made by Punjab Amendment Act, 1983 (22 of
1983) vide President’s Act No. 1 of 1984.
Mmaneesh Bajpai
Section 29-A.—In its application to the State of Punjab in relation to the “specified offences”
as defined in section 2(b) of Code of Criminal Procedure after section 29, section 29A inserted
as under:—
29A. Sentences which Executive Magistrate may pass.—An Executive Magistrate may pass
a sentence of imprisonment for a term not exceeding three years or of fine not exceeding Rs
5000/-, or of both.
Union Territory of Chandigarh.—In its application to the Union Territory of Chandigarh, in

relation to the “specified offences” under section 2(b) of the Code of Criminal Procedure
(Punjab Amendment) Act, 1983 (Punj. Act 22 of 1983), the provisions of the Code to apply to
that territory subject to modifications undermentioned. These modifications to remain in force
for one year w.e.f. 27 July 1984.
Section 29A.—After section 29, insert as under—
29A. Sentences which Executive Magistrates may give.—An Executive Magistrate may pass
a sentence of imprisonment for a term not exceeding three years or of fine not exceeding Rs
5000/-, or of both.
[s 29.2] Legislative changes in section 29— CrPC (Amendment) Act, 2005 (25 of 2005).—
In section 29 of the principal Act,
(a) in sub-section (2), for the words “Rs 5000/-”, the words “Rs 10000/-” shall be substituted;
(b) in sub-section (3) for the words “Rs 1000/-”, the words “Rs 5000/-” shall be substituted.
Notes on Clauses
This clause seeks to amend section 29 of the Code to enhance the sentencing power of the Magistrate
of the First Class to impose fine from Rs 5000/- upto Rs 10000/- and Magistrate of the Second Class
from Rs 1000/- upto Rs 5000/-. This is being proposed keeping in view the depreciation of the value
of the rupee since 1973 and to make the provision more deterrent. (Notes on Clauses, clauses 5)

923(E), dt. 21 June 2006.
This section lays down the quantum of sentence which different categories of Magistrates are
empowered to impose. The Indian Penal Code or any other enactments which penalise acts or
omissions generally lay down the outer limits of punishment that may be imposed in cases of different
offences. Sometimes even the minimum sentence is also laid down. This section, however, has
nothing to do with measure of punishment for individual offences. It lays down the power of the
individual category of Magistrate to pass a sentence. In view of the fact, that separation of the
Judiciary from the Executive is effected by the present Code and more experienced personnel will
man judicial posts now, the powers of Magistrates have been enhanced considerably under this
section. The Magistrate of the First Class can pass sentence only up to 3 years. But he can try such
cases and if he feels that the accused deserves more severe punishment than it is within his powers to
give, he can take recourse to section 325 of the Code and forward the accused to the Chief Judicial
Magistrate. 50
By virtue of section 5, if any special or local law authorizes the Magistrate of First class to exercise
special jurisdiction or power conferred under the said law, then section 29 gets ousted and in such an
event, the Magistrate of First class shall be entitled to exercise the jurisdiction and the powers
enjoined under the provisions of such special or local law. The examples of such special enactments,
wherein the Metropolitan Magistrate or Judicial Magistrate has been specially empowered by the
Legislature to pass sentence of fine exceeding the limits prescribed in section 29(2), Code of Criminal
Procedure, 1973 are Essential Commodities Act, 1955, section 12, Drugs and Cosmetics Act, section
36 and Prevention of Food Adulteration Act, section 21.51
[s 29.4] General principles of punishment.52—
The protracted nature of the trial, in the instant case under Arms Act, eight years elapsed before the
charge was framed, can be taken into consideration while fixing quantum of sentence, in case the
accused is found guilty.53
Where the Magistrate First Class for offence under section 138, Negotiable Instruments Act, imposed
fine above Rs 5000/-, the imposition of fine was held without jurisdiction and was set aside.54 Since
the Judicial Magistrate First Class cannot impose fine exceeding Rs 5000/-, prosecution for offence
under section 62(1)(a) read with section 94 of the Indian Factory Act, wherein minimum sentence of
fine of Rs 10,000/- is provided, must be filed in the court of Chief Judicial Magistrate and not in the
court of Judicial Magistrate First Class.55 Section 143 of the Negotiable Instruments Act has been
amended by Amendment Act, 2002 with effect from 6 February 2003. After the amendment the
Magistrate has got jurisdiction to impose the fine exceeding Rs 5000/-. Thus, even the Judicial
Magistrate First Class may pass sentence of fine exceeding Rs 5000/-. In view of conferring of special
jurisdiction or powers on the Magistrate of First Class in the matter of awarding sentences by inserting
section 143 NI Act, the limitation stipulated in section 29(2) of Code of Criminal Procedure, 1973 is
obviated. A complaint for prosecution under section 138 of the Negotiable Instruments Act, where the
cheque amount is Rs 25,000/-, need not necessarily be filed before the Chief Judicial Magistrate

because the fine leviable can be double of the cheque amount.56 Where a Magistrate proposes to
proceed under section 357 of the Code for awarding compensation to the complainant, the question of
pecuniary limits as contemplated under section 29(2) of Code of Criminal Procedure, 1973, being
applicable does not arise. But if the Magistrate proceeds to impose fine as part of a sentence, the
quantum of fine that he can impose is necessarily restricted by the provisions under section 29(2).57
The bar put on the Magistrate in respect of section 29 to impose fine not exceeding Rs 5000/- would
not be applicable to the High Court imposing fine under section 357 Code of Criminal Procedure,
1973, as the High Court under section 357(1)(b) can impose fine which may extend to twice of the
amount of the cheque in prosecution under section 138, Negotiable Instruments Act.58
[s 29.5] Determination of sentence.—
The question of sentence is always a difficult and complex question. The accused persons found guilty
may be hardened or professional criminals having taken to the life of crime since long, or they may
have taken to crime only recently or may have committed the crime under the influence of bad
company or again commission of a solitary offence may be due to provocative wrongful action
seriously injuring the feelings and sentiments of the accused. Human nature being what it is, men are
at times moved by the impulse, of the moment rather than by rational, cool, calculated estimate of the
future good and evil. At such moments, they are ordinarily inclined to be ready to face any future evil
falling short of the inevitable. Keeping in view the broad object of punishment of a criminal by courts,
in all progressive civilised societies, true dictates of justice seem to demand that all the attending
relevant circumstances should be taken into account for determining the proper and just sentence. The
sentence should bring home to the guilty party of the consciousness that the offence committed by him
was against his own interest as also against the interests of the society of which he happens to be a
member.59
Impact of crime on the society should also not be ignored. Any liberal attitude by imposing minimum
sentences or taking too sympathetic view merely on account of lapse of time or personal
inconvenience would have adverse effect.60
Undue sympathy to impose inadequate sentence would do more harm to the justice system to
undermine the public confidence in the efficacy of law and society could not long endure under such
serious threats. It is the duty of every court to award proper sentence having regard to the nature of the
offence and the manner in which it was executed or committed etc. Any liberal attitude by imposing
meagre sentences or taking too sympathetic view merely on account of lapse of time in respect of such
offences will be result-wise counter productive in the long run and against societal interest which
needs to be cared for and strengthened by string of deterrence inbuilt in the sentencing system.61
In a case under section 500 of the Indian Penal Code conviction of eight months RI is contrary to the
provision of law which provides for only simple imprisonment. While sentencing a skilful balance

between the competitive claims of reformatory, deterrent, retributive theories of punishment has to be
adjusted. Having regard to all the circumstance of the case, sentence was reduced to 13 days RI as
period already undergone.62
[s 29.6] Imprisonment in default of fine.—
Where the sentence is imprisonment and fine, while awarding imprisonment in default of fine, there
are two limitations as to the term of such imprisonment, the one imposed by section 65, Indian Penal
Code, 1860 and the other by sub-section (1)(b) of section 30 read with section 29.63
[s 29.7] Recourse to section 325.—
See Comments under section 325 infra.
[s 29.8] Children’s Court.—
The powers available to the Chief Judicial Magistrate under section 29 of the Code cannot be
exercised by him when he presides over Children’s Court under HP Children Act, 1979.64
[s 29.9] Competent Court under Drugs and Cosmetics Act, 1940.—
A case involving section 27 of the Drugs and Cosmetics Act, 1940, the punishment for which extends
up to 10 years of imprisonment is triable by Court of Sessions and by Magistrate of First Class or
Chief Judicial Magistrate.65 The restricted competence or power to impose the sentence of
imprisonment, has nothing to do with the jurisdiction of the Magistrate, and does not affect the
jurisdiction of the Magistrate to try the offence under section 27(c), Drugs and Cosmetics Act, 1940,
for which the sentence of imprisonment may extend upto five years.66
[s 29.10] Negotiable Instruments Act, 1881.—
Section 138 Negotiable Instruments Act provides that the court may impose fine twice the amount of
the cheque. This is subject to the maximum limit of powers of the Magistrate/Judge which he can
impose. Thus where a Magistrate imposes a fine of Rs 1,35,000/-, it would be an abuse of process of
the Court.67 Section 143 of the Negotiable Instruments Act has been amended by Amendment Act,
2002 with effect from 6 February 2003. After the amendment the Magistrate has got jurisdiction to
impose the fine exceeding Rs 5000/-.
48 Subs. by the Code of Criminal Procedure (Amendment) Act, 2005 (25 of 2005), section 5. for “Rs 5000/-” (w.e.f. 23 June 2006
vide Notification No. SO 923(E), dated 21 June 2006).
49 Subs. by the Code of Criminal Procedure (Amendment) Act, 2005 (25 of 2005), section 5 for “Rs 1000/-” (w.e.f. 23 June 2006
vide Notification No. SO 923(E), dated 21 June 2006).

50 Shivarajveerappa Purad v State of Karnataka, 1977 Cr LJ 1113 (Kant); IInd Addl. Judicial Ist Class Magistrate, Bhimavaram v
State of AP, 2005 Cr LJ 1168 (1170, 1171) (AP) (Case under AP Prohibition Act (17 of 1995), section 8).
51 IInd Addl. Judicial Ist Class Matgistrate, Bhimavaram v State of AP, 2005 Cr LJ 1168 (1170, 1171) (AP) : 2005 (1) Andh LD (Cri)
625.
52 See Ramashraya Chakravarti v State of MP, AIR 1976 SC 392 : (1976) 1 SCC 281 : 1976 Cr LJ 334 .
53 Supdt. & Remembrancer Legal Affairs v Anil Kumar, AIR 1980 SC 52 : (1979) 4 SCC 274 : 1979 Cr LJ 1390 (1394).
54 Pankajbhai Nagjibhai Patel v State of Gujarat, AIR 2001 SC 567 : (2001) 2 SCC 595 (601) : 2001 (1) Crimes 165 (SC) : 2001 Cr
LJ 950 ; K Bhaskaran v Sankaran Vaidhyan Balan, AIR 1999 SC 3762 : (1999) 7 SCC 510 : 1999 Cr LJ 4606 ; Ravindran v P
Srichand, 2000 Cr LJ 4910 (4911) (Mad); AMI Sanag Micromation Ltd v State of AP, 2000 Cr LJ 5043 (AP); Radhakrishnan Nair
v Padamanabhan, 2001 Cr LJ NOC 38 (Ker). (The Full Bench decision of the Madras High Court in Selvaraj v P Viswanathan,
1999 Cr LJ 4766 (FB) and of Kerala High Court in KP Sahaderan v TK Sreedharan, 1996 Cr LJ 1223 (Ker) shall be deemed to
have been overruled in view of the decision of the Supreme Court in Pankajbhai Nagjibhai Patel’s case, supra); Y Sreelatha v
Mukanchand Bothra, 2003 Cr LJ 1938 (1945) : (2002) 1 Andh LT (Cr) MD 559 : (2002) 2 Crimes 19 : (2002) Mad LJ 248 (Mad);
Vijay Kumar Seth v Kunwar Bhupinder Singh, 2003 Cr LJ 2124 (2129) : (2003) 3 All CriLR 955 : (2003) 3 Rec Cri R 538 (HP).
55 State of Gujarat v Harishbhai Veljibhai Thakar, 1994 (3) Crimes 1021 (1023) (Guj).
56 Jaya Baby v Vijayan, 1994 (1) Crimes 391 : 1994 Cr LJ 3452 (Ker); See also Y Sreelatha v Mukanchand Bothra, 2003 Cr LJ 1938
(1945) : (2002) 1 Andh LT 559 : (2002) 2 Crimes 19 : (2002) Mad LJ 248 (Mad).
57 Jonnadula Malikarjuna Rao v Dodda Venkata Subbareddy, 2001 Cr LJ 2008 (2009) (AP) : 2000 (1) Andh LD (Cri) 678.
58 Y Sreelatha v Mukanchand Bothra, 2003 Cr LJ 1938 (1945) : (2002) 1 Andh LT 559 : (2002) 2 Crimes 19 : (2002) Mad LJ 248
(Mad).
59 Modi Ram v State of MP, AIR 1972 SC 2438 : (1972) 2 SCC 630 : 1972 Cr LJ 1521 .
60 UOI v Kuldeep Singh, (2004) 2 SCC 590 (598) : 2004 SCC (Cri) 597 : AIR 2004 SC 827 .
61 State of UP v Kishan, 2004 SCC (Cri) 2013 : (2004) 7 SCC 629 : 2005 Cr LJ 333 (334, 335) (SC); State of MP v Balu, (2005) 1
SCC 108 : 2005 Cr LJ 335 (339) (SC).
62 Shyam Narain v State of Rajasthan, 1974 Cr LJ 1006 (Raj).
63 Bidhan Bisoi v State of Orissa, 1989 Cr LJ 1038 (Ori).
64 Saroop Kumar v State of HP, 1989 Cr LJ 1884 (HP).
65 Ravindra Prakash Arya (Dr) v UOI, 1984 Cr LJ 1321 (All); see also Perumala Koteswara Rao v State of AP, 2001 Cr LJ 1904 :
2001 (1) Andh LT (Cr) 232 (AP).

66 Perumala Koleswara Rao v State of AP, 2001 Cr LJ 1904 : 2001 (1) Andh LT (Cr) 232 (235) (AP).
67 Brujesh Kumar Sharma v Ramprakash Kulshresht, 2008 Cr LJ (NOC) 187 (MP); Asim Kunwar Saha v Nepal Mahato, 2006 (3)
Crimes 280 (Cal).
End of Document

[s 30] Sentence of imprisonment in default of fine.-
(1) The Court of a Magistrate may award such term of imprisonment in default of payment
of fine as is authorised by law:
Provided that the term—
(a) is not in excess of the powers of the Magistrate under section 29;
(b) shall not, where imprisonment has been awarded as part of the substantive sentence,
exceed one-fourth of the term of imprisonment which the Magistrate is competent to
inflict as punishment for the offence otherwise than as imprisonment in default of
payment of the fine.
(2) The imprisonment awarded under this section may be in addition to a substantive
sentence of imprisonment for the maximum term awardable by the Magistrate under
section 29.
Where a fine is imposed on an accused, and it is not paid, the law provides that he can be imprisoned
for a further term in addition to the substantive imprisonment awarded, if any. This section defines the
limits of a Magistrate’s power, to award imprisonment in default of payment of fine.
There is a limit to the power of Magistrates to award fines (section 29); but the powers of a Sessions
Court or the High Court are “unlimited”, though the fines cannot be “excessive” (section 63, Indian
Penal Code, 1860). There are limits placed on imposition of imprisonment for failure to pay a fine.
Mmaneesh Bajpai
The Penal Code provides, (1) where an offence is punishable with imprisonment and fine, the
imprisonment in default of fine can only extend to one-fourth of the maximum imprisonment that can
be imposed, and can be rigorous or simple as the substantive imprisonment could be (sections 65, 66,
Indian Penal Code, 1860); (2) where the offence is punishable with fine only, the imprisonment in
default can only be simple; and must conform to the following scale: (a) for fines of Rs 50 and under,
imprisonment for two months, (b) for fines from Rs 51 to Rs 100, imprisonment for four months; and
for fines of Rs 101 and above six months imprisonment (section 67, Indian Penal Code, 1860). To this
limitation the Criminal Procedure Code has added one more, that the imprisonment can only extend to
one-fourth of the period of imprisonment which the Magistrate can award as substantive sentence. It is
obvious, therefore, that as this section specifically governs the powers of Magistrates in respect of
imposition of sentence of imprisonment in lieu of fine, the Magistrate cannot by resorting to section
65 of the Indian Penal Code contravene the provisions of this section.68
[s 30.2] “Authorised by law” (Sub-section (1)).—
See sections 63 to 67 of the Indian Penal Code.
A Magistrate can pass the maximum sentence of imprisonment under section 29 and add to it the
sentence in default of payment of fine.
[s 30.4] Imprisonment in default of payment of fine not provided by special statute.—
A sentence of imprisonment can be awarded in default of the payment of fine even though no such
imprisonment in default of the payment of fine is provided for by a local or a special statute.69
[s 30.5] Sentence in default of payment of fine.—
A Magistrate can sentence the accused to imprisonment in default of payment of fine.70 The provisions
contained therein are applicable only to Magistrate and not to other courts.71 The term imprisonment
in default of payment of fine, cannot be deemed to be a sentence, but a penalty, which is incurred on
account of non-payment of fine. A sentence is something which must be undergone unless it is
remitted in part or in whole, on appeal or otherwise. When however, a term of imprisonment is
imposed in default of payment of fine, the accused may always avoid it, by paying the fine. In such a
case of sentence of fine, the imprisonment in default is merely a penalty for non-payment of fine.
Therefore, the imprisonment awarded in the event of default of payment of fine, cannot be added up to
the substantive sentence of imprisonment to negative the jurisdiction of the trial Judge.72 The default
term is not to exceed one fourth of the sentence which a Magistrate is empowered to impose. A
sentence of one year default term imposed by a Magistrate is illegal.73 A sentence imposed in default
of payment of fine cannot be directed to run concurrently with substantive sentence, as the two are
distinct.74
Default sentence is not punishment or sentence stricto sensu and the imposition of default sentence is
only as a mode of enforcement, default sentence for non-payment of deemed fines can also be
imposed under section 30 Code of Criminal Procedure, 1973.75

A question arose before a Division Bench of the Madras High Court whether concurrent running of
default sentence can be ordered along with the substantive sentence of imprisonment. The accused
was convicted in 41 cases and the maximum sentence imposed was only two years in all the forty one
cases for each offence and the substantive sentence of imprisonment were ordered to run concurrently.
In a Habeas Corpus petition where the accused pleaded for his release on the ground of having served
out the sentence, it was pleaded on behalf of the State that rule 242 of the Prison Manual stated that
while calculating the sentence of imprisonment, the sentence imposed in default of payment of fine,
cannot run concurrently. It was held by the Division Bench that Rule cannot prevail over provisions of
the Code. There would be no prohibition for Court to order default sentences also to run concurrently
either under section 30 or section 31 of the Code of Criminal Procedure, 1973.76
In a case of possession of contraband substance, the court, in addition to the substantive sentence of
imprisonment, imposed a fine of Rs 1,00,000/- and in default of payment of fine directed further
imprisonment for a period of one year. It was held that the convict was a poor person and of young
age. The offence in question was his first offence and nothing adverse had come against his conduct
during custody. Therefore, the sentence of imprisonment in default of payment of fine was reduced to
six months.77
It has been held by a Full Bench of Madras High Court that imposition of the term of imprisonment in
default of payment of fine is not a sentence, it is a penalty which the convict incurs on account of non
- payment of fine. Where a default sentence is imposed, undoubtedly the offender must undergo it
unless it is modified or varied in part or whole. Therefore, there is no power for the court to order the
default sentences to run concurrently. When such a default sentence is imposed, a person is required to
undergo imprisonment either because he is unable to pay the amount of fine or refuses to pay such
amount.78
68 Chhajulal v State of Rajasthan, AIR 1972 SC 1809 , 1811; Kuna Maharana v State, 1996 Cr LJ 170 (172) (Ori).
69 Daulat Raghunath Derale v State of Maharashtra, 1991 Cr LJ 817 , 820 : 1991 (1) Crimes 855 , 859 (Bom-DB).
70 Md Imdad Ali v State of Orissa, 1991 (2) Crimes 654 (Ori); Basiruddin Ashraf v State of Bihar, AIR 1957 SC 645 : 1957 Cr LJ
1023 .

73 Kuna Maharana v State, 1996 Cr LJ 170 (172) (Ori) : 1995 (II) OLR 79 .
74 Sukumaran v State, 1993 Cr LJ 3228 (3229) (Ker) : 1993 (2) Andh LT (Cr) 96 ; State v Raman, 1970 Ker LT 1018 (Ker); State of
Kerala v Sreedharan, 1967 Ker LT 1014 (Ker); Shelu Tama v Hari Jha, AIR 1958 Pat 35 : 1958 Cr LJ 80 (DB); State of UP v
Bati, AIR 1950 All 625 .
75 K Narayanan Nambiar v AM Mathew, 2009 Cr LJ 30 (33) (Ker).
76 M Balasubramanian v State, 2012 Cr LJ 2486 (Mad) (DB) : 2012 (2) Crimes 401 .
77 Bhim Bahadur v State of Rajasthan, 2014 Cr LJ 4926 (HP) (DB) : 2015 (3) Crimes 157 (HP). [Shahejad Khan Mahebub Khan
Pathan v State of Gujarat, (2013) 1 SCC 570 : 2013 (2) Guj LR 1—Rel. on].
78 Donatus Tony Ikwanusi v Investigating Officer, NCB, 2013 Cr LJ 1938 (Mad) (Full Bench) : 2013 (2) RCR (Criminal) 967,
[Mahebub Khan Pathan v State of Gujarat, AIR 2013 SC (Cri) 61 : 2012 (10) Scale 21 —Rel. on].
End of Document

[s 31] Sentence in cases of conviction of several offences at one trial.-
(1) When a person is convicted at one trial of two or more offences, the Court may, subject
to the provisions of section 71 of the Indian Penal Code (45 of 1860), sentence him for
such offences, to the several punishments prescribed therefor which such Court is
competent to inflict; such punishments when consisting of imprisonment to commence
the one after the expiration of the other in such order as the Court may direct, unless the
Court directs that such punishments shall run concurrently.
(2) In the case of consecutive sentences, it shall not be necessary for the Court by reason
only of the aggregate punishment for the several offences being in excess of the
punishment which it is competent to inflict on conviction of a single offence, to send the
offender for trial before a higher Court:
Provided that—
(a) in no case shall such person be sentenced to imprisonment for a longer period than
fourteen years;
(b) the aggregate punishment shall not exceed twice the amount of punishment which the
Court is competent to inflict for a single offence.
(3) For the purpose of appeal by a convicted person, the aggregate of the consecutive
sentences passed against him under this section shall be deemed to be a single sentence.
This section relates to the quantum of the punishment that the court has jurisdiction to pass where the
accused is convicted of two or more offences at one trial (sections 218-223). If a statute enjoins the
Mmaneesh Bajpai
Courts to impose the minimum punishment, in the absence of any saving clause in the statute itself, it
is not open to courts to award a punishment less than the minimum prescribed.79 The court may pass
separate sentences, subject to the provisions of section 71 of the Indian Penal Code, for the several
offences of which the court finds the accused guilty. The aggregate punishment and the length of the
period of imprisonment must not exceed the limit fixed by the provisos. section 71 of the Indian Penal
Code provides (1) that where an offence is made up of parts each of which parts is itself an offence the
offender can be punished only for one of such offences; (2) that where an offence falls under two or
more definitions of offences or where several acts, each of which is an offence, constitute when
combined a different offence, then the punishment could be awarded only for any one of such
offences. These are rules of substantive law. The present section is a rule of procedural law.
In the Code there are no guidelines or specific provisions to suggest under what circumstances the
various sentences of imprisonment shall be directed to run concurrently or consecutively.80 The
direction for the sentence to run concurrently or consecutively is a direction as to the mode in which
the sentence is to be executed. That does not affect the nature of the sentence.81
Where a person is convicted of several offences at one trail, it is the discretion of the court to order for
the sentences to run concurrently. But this discretion has to be exercised along judicial lines and not
mechanically.82 Explaining the proposition, R Banumathi J (speaking for the three Judge Bench),
observed as follows:
20. Under section 31, Code of Criminal Procedure, 1973 it is left to the full discretion of the court to order the sentence to run
concurrently in case of conviction for two or more offence. It is difficult to lay down any strait jacket approach in the matter of
exercise of such discretion by the courts. By and large, trial courts and appellate courts have invoked and exercised their discretion
to issue directions for concurrent running of sentence, favouring the benefit to be given to the accused. Whether a direction for
concurrent running of sentences ought to be issued in a given case would depend upon the nature of the offence or offences
committed and the facts and circumstances of the case.83
In a case of murder and house-trespass, the trial Judge awarded the sentence of life imprisonment for
murder and a sentence of five-year RI for house-trespass. It was held that strictly speaking, section
427 of the Code may not apply in such a case as the sentences were imposed not in separate trials, still
the principles of section 427 can be applied to cases where separate sentences were imposed in the
same trial. Thus, substantive sentences were directed to run concurrently.84
In view of the proviso appended to section 31, Code of Criminal Procedure, 1973 when an accused is
convicted for several offences, the maximum sentence imposable is 14 years.85

Life imprisonment means imprisonment for the whole of the convict’s natural life.86
In a case relating to the release of life convict of West Bengal, the Supreme Court held that life
imprisonment means imprisonment for whole of the convict’s life. Neither section 57 of the Indian
Penal Code nor section 61 of the West Bengal Correctional Services Act, 1992, provide that life
imprisonment means 20 years’ imprisonment.87 Explaining the proposition P Sathasivam J (as His
Lordship then was), observed as follows:
16. It is clear that neither section 57, Indian Penal Code, 1860 nor Explanation to section 61 of the W.B. Act lays down that a life
imprisonment prisoner has to be released after completion of 20 years. 20 years mentioned in Explanation to section 61 of the W.B.
Act is only for the purpose of ordering remission. If the State Government taking into consideration various aspects refused to
grant remission of the whole period then the petitioner cannot take advantage of the above Explanation and even section 57, Indian
Penal Code, 1860 and seek for premature release. Further the question of remission of the entire sentence or a part of it lies within
the exclusive domain of the appropriate Government under section 401 of the code of Criminal procedure, 1973 and neither section
57 of the Indian Penal Code, 1860 nor rules or local Act (in the case on hand WB Act) can stultify the effect of the sentence of life
imprisonment given by the court under the Indian Penal Code, 1860. To put it clear, once a person is sentenced to undergo life
imprisonment unless imprisonment for life is commuted by the competent authority, he has to undergo imprisonment for the whole
of his life. It is equally well settled that section 57 of the Indian Penal Code, 1860 does not, in any way, limit the punishment of
imprisonment for life to a term of 20 years.88
In a case where a person was convicted and sentenced to imprisonment for several offences, including
one sentence for life imprisonment, it was held by the Supreme Court that the proviso to section 31(2)
would come into play. No consecutive sentence can be imposed. Therefore, the order imposing the
sentence to run consecutively was held to be illegal.89
In one case the accused was convicted for different offences in single trial. The court inflicted
sentence of “simple imprisonment” of one year for the offence punishable under section 148 and
“rigorous imprisonment” of seven years for offence punishable under section 307 of the Indian Penal
Code, 1860 with fine. There was no mention in the order as to whether the sentences would run
concurrently or consecutively. It was held that the intention of the Trial Court is obvious, because such
sentences cannot be suffered concurrently.90
In a case of possession of explosives and criminal conspiracy, the accused were active members of
banned organisation Students Islamic Movement of Indian (SIMI). The accused were young
unemployed persons coming from poor strata of society. They had secured education like Diploma in
Engineering but were jobless. It was held that this force of unemployed hands with empty minds was

easy prey for proverbial devil to engage in his workshop. Therefore, there is no need to direct
sentences to run consecutively. Hence, sentences were directed to run concurrently.91
[s 31.2] “At one trial” (Sub-section (1)).—
These words are the key-notes to the section. The section applies only when more offences than one
are tried at the same trial.
[s 31.3] “May…sentence” (Sub-section (1)).—
The passing of separate sentences is not obligatory : it is only optional.
[s 31.4] “Which such Court is competent to inflict” (Sub-section (1)).—
These words refer back to section 29 which defines the powers of different grades of Magistrates to
award sentences.
Each of the terms of imprisonment to which the accused has been sentenced for the several offences
has to be within the power of the court and the term of imprisonment is not rendered illegal or beyond
the power of the court merely because the total term of imprisonment in the case of consecutive
sentences is in excess of the punishment within the competency of the Court. For the purpose of
appeal by a convicted person it is the aggregate of the consecutive sentences passed against him which
shall be deemed to be a single sentence.92
[s 31.5] “To commence the one after the expiration of the other” (Sub-section (1)).—
When nothing is said, one sentence ordinarily operates at the expiration of another.
A perusal of section 31 of Code of Criminal Procedure, 1973 shows that when the accused is
sentenced for two or more offences, the punishment consisting of imprisonment are to commence one
after the expiration of the other, unless the court directs that such sentences shall run concurrently. The
Court can even indicate the order in which the consecutive sentences shall be suffered. If not indicated
specifically in the judgment, the sequence of sentence in the order of the court must be followed.93
[s 31.6] “Unless the court directs that such punishments shall run concurrently” (Sub-section (1)).—
It is in the option of a Magistrate who passes different sentences on an accused at the trial to order that
they shall run all together, ie, the lesser sentences be merged in the greater. Any sentences of
imprisonment in default of fine has to be in excess of, and not concurrent with, any other sentence of
imprisonment to which the prisoner may have been sentenced. The court has no power to make
various sentences of imprisonment in default of payment of fine concurrent with each other.94 The
section authorises the passing of concurrent sentences in cases of substantive sentences of
imprisonment,95 a fortiori in the case of sentence of life imprisonment.96 Two consecutive sentences of
imprisonment for life cannot be awarded.97 Where accused is convicted, sentenced for several
offences at one trial and court does not direct sentences to run concurrently, in the absence of any such

direction, sentences shall run consecutively.98
Where the offences committed are totally independent, court would not direct that sentences would
run concurrently.99
Where the Trial Court has directed that the sentences shall run consecutively and the order has
attained finality, the High Court in exercise of its inherent power cannot direct that the sentences shall
run concurrently.100
[s 31.7] “Consecutive Sentence” (Sub-section (2)).—
The opening words “in the case of consecutive sentences” in sub-section 31(2) make it clear that this
sub-section refers to a case in which “consecutive sentences” are ordered. If an aggregate of
punishment for several offences is found to be in excess of punishment which the court is competent
to inflict on a conviction of single offence, it shall not be necessary for the court to send the offender
for trial before a higher court. Proviso (a) is added to this sub-section to limit the aggregate of
sentences which such a court passes while making the sentences consecutive.101
In a case under section 307, Indian Penal Code, 1860 in respect of shooting in court premises, the
accused was sentenced to 10 years RI and three years RI for offences punishable under sections 25
and 27 of the Arms Act. The sentences were ordered to run consecutively on the ground that the
accused was previously convicted for committing an identical offence. It was held by the Supreme
Court that sentences for offences committed under single transaction must run concurrently and not
consecutively. Thus, in view of the settled position of law and the tender age of the accused on the
date of offences, the sentences were modified to run concurrently and hence reduced to 10 years in
total.102
In Muthuramalingam v State,103 a three-judge bench of the Supreme Court noted difference of opinion
of the Supreme Court in OM Cherian104 and Duryodhan Rout105 on the one hand, and
Kamalanantha106 and Sanaullah Khan107 on the other hand. The three -judge bench noted that while in
OM Cherian’s case (supra), the Supreme Court had held that consecutive life sentences are not
permissible, the view taken in Kamalanantha (supra) and Sanaullah Khan (supra) appeared to strike a
discordant note. Also the decision in Duryodhan Rout’s case (supra) held that consecutive life
sentences are not permissible in terms of section 31 on account of the proviso to sub-section (2) to
section 31 not permitting any such consecutive life sentences as the cumulative effect of such sentence
shall inevitably take the total period of imprisonment to more than 14 years. The following question
was referred to a five- judge bench: “Whether it is legally permissible for a Court to awar d
consecutive life sentences to a convict based on a series of murders for which the convict was tried in
a single trial.” This question was referred to a Constitution Bench for authoritative pronouncement.

The five-judge bench in Muthuramalingam v State,108 held that while multiple sentences of
imprisonment for life can be awarded for multiple murders or other offences punishable with
imprisonment for life, the life sentences so awarded cannot be directed to run consecutively. The
Constitution Bench further held that the power of the court to direct the order in which sentences will
run is unquestionable in view of the language employed in section 31. The court can, therefore,
legitimately direct that the prisoners shall first undergo the term sentence before the commencement of
his life sentence. Such a direction shall be perfectly legitimate and in tune with section 31. The
converse however may not be true for if the court directs the life sentence to start first it would
necessarily imply that the term sentence would run concurrently. That is because once the prisoner
spends his life in jail, there is no question of his undergoing any further sentence. The bench further
held that they were not concerned with whether or not the direction of the court below calls for any
modification or/and posted the matter to the regular bench for disposal. The bench therefore overruled
Kamalanantha and Sanaullah Khan on this aspect. The regular two-judge bench vide judgment and
final order dated 9 December 2016109 dismissed the appeals finding the appellants guilty of gruesome
murder and ordered sentence to run as per the judgment of the Constitution Bench’s judgment.
In Vikas Yadav v State of UP,110 the Supreme Court amended the sentence imposed under section 201
to run concurrently from consecutively in accordance with the law laid by the Constitution Bench.
[s 31.8] Combined sentence.—
A combined sentence for two or more offences is not proper.111 Each accused should be fined
separately, imposition of joint-fine on the accused persons is illegal.112
[s 31.9] Section 31 and section 427—comparison.—
Comparison of both the said sections make it clear that section 427 applies when there are different
trials while section 31 applies at a time when in one trial the accused gets convicted for two or more
offences, how the sentences of imprisonment should operate. In section 31, it is the multiple offences
which are dealt with, while in section 427 of Code of Criminal Procedure, 1973 it is multiple trials
and sentences that are dealt with.113
[s 31.10] Cases.—
A person who steals a calf and then kills it, is guilty of the offences of theft (section 379, Penal Code)
and mischief (section 429, Penal Code), and is liable to be convicted and sentenced separately.114 The
direction that punishments should run concurrently is an integral part of the judgment. Therefore, a
direction how the sentences in the two cases should run, issued subsequent to the disposal of the cases,
would amount to alteration of the judgment which is barred by section 362. Hence, such directions
cannot be issued after the judgment is pronounced.115 The accused stole a bullock from the jungle,
where it was put to graze by its master, a cart man, and then killed it for food. He was convicted of the
offences of theft and mischief at one trial and was sentenced separately for each offence. It was held
that the sentences were legal.116 Where an accused, his brothers and friends were alleged to have
trespassed into a house and assaulted the house owners, he was rightly convicted and sentenced under
section 147 of the Indian Penal Code. It was held that separate sentence under section 143 of the
Indian Penal Code was not necessary.117 Where accused is convicted and sentenced under section 148

Indian Penal Code, 1860, his conviction under section 147, Indian Penal Code, 1860 is redundant and
uncalled for as the former is a graver offence.118
When the matter before High Court for confirmation of death sentence was pending and three years
had elapsed since the time of occurrence, the sentence was modified into life imprisonment.119
In a case of cruelty and abetment of suicide, the accused was convicted under section 498-A for ill-
treating his wife and under section 306 for abetment of suicide by wife who committed suicide by
hanging. According to facts of the case, the accused after marriage had secured an employment in a
Gulf country and used to visit India once in two years only. Due to marital differences efforts were
made to settle the differences through mediation. But on the day the mediation was to take place, the
wife committed suicide by hanging. On the facts and circumstances, sentences for the offences were
directed to run concurrently.120
79 Tamil Nadu v Rangaswami, 1981 Cr LJ 694 (Mad).
80 P Prabhakaran v P Jayarajan, (2005) 1 SCC 754 (785) : AIR 2005 SC 688 .
82 OM Cherian v State of Kerala, AIR 2015 SC 303 [Three-Judge Bench] : (2015) 2 SCC 501 .
83 OM Cherian v State of Kerala, AIR 2015 SC 303 ,309 para 20.

84 Achuthan v State of Kerala, 2014 Cr LJ 3360 (Ker) (DB) : ILR 2014 (3) Kerala 609 .
85 Chatar Singh v State of MP, 2007 Cr LJ 796 (798) : AIR 2007 SC 319 : 2007 (1) Crimes 171 : 2007 (2) SCC (Cri) 370 ).
86 Ajay Sharma v State of J&K, 1995 Cr LJ 3162 (3165) (J&K-DB).
87 Life Convict Bengal v BK Srivastava, AIR 2013 SC 1163 : (2013) 3 SCC 425 : Cr LJ 1446 (SC).
88 Life Convict Bengal v BK Srivastava, AIR 2013 SC 1163 , para 16 at p 1171 (of AIR). (In author’s opinion the reference to section
401 of the Code may be taken as reference to section 432 of the Code).
89 Duryodhan Rout v State of Orissa, AIR 2014 SC 3345 : 2014 Cr LJ 4172 (SC).

90 Subhash Devidas Deshmukh v State of Maharashtra, 2014 Cr LJ 1196 (Bom) (DB) [Aurangabad Bench] : 2013 (4) Bom CR (Cri)
292 .
91 Shaikh Iliyas Shaikh Yousuf v State of Maharashtra, 2014 Cr LJ (NOC) 352 (Bom) (DB) [Aurangabad Bench].
93 Subhash Devidas Deshmukh v State of Maharashtra, 2014 Cr LJ 1196 (Bom) (DB) [Aurangabad Bench] : 2013 (4) Bom CR (Cri)
292 .
94 Emperor v Chanan Singh, AIR (1940) Lah 388 : (1940) 21 Lah 143; Kanda Moopan, (1937) Mad 362; Mithoo, (1942) Kant 1;
Mritunjoy Bose, AIR 1967 Pat 286 ; Sukumaran v State of Kerala, 1993 Cr LJ 3288 : 1993 (2) Crimes 892 (Ker).
95 Venkataswamy, (1937) Ran 366.
96 Surja Ram v The State, AIR 1963 Raj 202 : 1963 Cr LJ 396 .
97 Johrilal v State of MP, AIR 1971 MP 116 , 118 : 1971 Cr LJ 814 .
98 Mangal Singh v State, 2006 (1) Crimes 477 (Del).
99 Dinu v State of Haryana, 2002 Cr LJ NOC 149 (P&H).
100 Pyari Devi v State of Rajasthan, 2003 Cr LJ 4599 (4600) : (2003) 4 Cur Cri R 374 (Raj-DB).
101 Zulfiqar Ali v State of UP, 1986 (3) Crimes 199 , 203 (All-DB).
102 Manoj v State of Haryana, AIR 2014 SC 644 : (2014) 2 SCC 153 .
103 Muthuramalingam v State, (2016) 8 SCC 313 : AIR 2016 SC 3340 : 2016 Cr LJ 4165 : 2016 (7) Scale 129 .
104 OM Cherian v State of Kerala, (2015) 2 SCC 501 : AIR 2015 SC 303 : 2015 Cr LJ 593 : 2014 (12) Scale 636 .
105 Duryodhan Rout v State of Orissa, (2015) 2 SCC 783 : AIR 2014 SC 3345 : 2014 Cr LJ 4172 : 2014 (8) Scale 96 .
106 Kamalanantha v State of TN, (2005) 5 SCC 194 : AIR 2005 SC 2132 .
107 Sanaullah Khan v State of Bihar, (2013) 3 SCC 52 : 2013 Cr LJ 1527 : 2013 (2) Scale 505 .

108 Muthuramalingam v State, (2016) 8 SCC 313 : AIR 2016 SC 3340 : 2016 Cr LJ 4165 : 2016 (7) Scale 129 .
109 Criminal Appeals No. 231-233 of 2009; order dt. 9 December 2016.
110 VikasYadav v State of UP, (2016) 9 SCC 541 : AIR 2016 SC 4614 : 2016 (9) Scale 549 .
111 Madan Mohan Raj v State of Orissa, 1996 Cr LJ 2578 (Ori-DB) : 1996 (1) Andh LT (Cr) 14 .
112 State of Rajasthan v Hari Dass, 1996 Cr LJ 4364 (Raj).
113 Pawan Kumar Prasad v State of Orissa, 2014 Cr LJ 2386 (Ori) : 2014 (3) Crimes 467 (Ori).
114 Emperor v Bhawan Surji, (1936) 38 Bom LR 164 : 60 Bom 627.
115 Bhaskaran v Kerala, 1978 Cr LJ 738 (Ker).
116 Nga Paw Din v The King, AIR 1938 Rang 138 (F) : (1938) Ran 63.
117 Poovappa, 1981 Cr LJ NOC 107 (Kant).
118 Sheo Poojan v State of UP, 1998 Cr LJ 2864 (2870) (All-DB).
119 Chaman Lal v State, 1976 Cr LJ 1310 (J&K-DB).
120 OM Cherian v State of Kerala, AIR 2015 SC 303 (Three-Judge Bench) : (2015) 2 SCC 501 [Modh. Akhtar Hussain v Asstt.
Collector of Customs (Prevention), Ahmadabad, AIR 1988 SC 2143 : (1988) 4 SCC 183 ; Manoj v State of Haryana, AIR 2014 SC
644 : (2014) 2 SCC 153 —Ref.].
End of Document

[s 32] Mode of conferring powers.-
[s 32] Mode of conferring powers.-
(1) In conferring powers under this Code, the High Court or the State Government, as the
case may be, may, by order, empower persons specially by name or in virtue of their
offices or classes of officials generally by their official titles.
(2) Every such order shall take effect from the date on which it is communicated to the
person so empowered.
Where a Magistrate is invested with second class power on the date he commences the trial of a case,
but is invested with first class powers before he finishes it, he is competent to pass sentences on the
accused under the first class powers.121
121 Queen Empress v Pershad, (1885) 7 All 414 (FB).
End of Document
Mmaneesh Bajpai
[s 33] Powers of Officers appointed.-
Whenever any person holding an office in the service of Government who has been invested by
the High Court or the State Government with any powers under this Code throughout any local
area is appointed to an equal or higher office of the same nature, within a like local area under
the same State Government, he shall, unless the High Court or the State Government, as the
case may be, otherwise directs, or has otherwise directed, exercise the same powers in the local
area in which he is so appointed.
This section refers to the transfer of a Magistrate from one district or area to another and points to the
investing of powers as personal. A Mamlatdar (revenue officer) invested by name with second class
powers in a district retains them though he ceases to be a Mamlatdar, his revenue title being matter of
description only.122 But when a Magistrate is transferred from one district to another, he ceases to have
jurisdiction in his district as soon as he relinquishes the charge.123 If a Deputy Collector does not
exercise the powers of a Magistrate vested in him it cannot be implied that the said powers are
impliedly withdrawn, because the section does not require actual exercise of such power but only the
capacity to exercise it.124
122 Queen Express v Rama, (1887) Unrep Cr C 322; Laxminarayan Karki, (1928) 30 Bom LR 1050 .
Mmaneesh Bajpai
123 Empress of India v Anand Sarup, (1881) 3 All 563 (FB); Balwant v Kishen, (1896) 19 All 114 .
124 Amulya Chandra v The State, (1963) 2 Cr LJ 721 .
End of Document

[s 34] Withdrawal of powers.-
[s 34] Withdrawal of powers.-
(1) The High Court or the State Government, as the case may be, may withdraw all or any
of the powers conferred by it under this Code on any person or by any officer
subordinate to it.
(2) Any powers conferred by the Chief Judicial Magistrate or by the District Magistrate
may be withdrawn by the respective Magistrate by whom such powers were conferred.
Section 34 corresponds to section 41 of the Old Code, 1898. The “High Court” in sub-section (1) and
the “Chief Judicial Magistrate” in sub-section (2) are new, the power on judiciary is in the 1973 Code
vested in High Court and the Chief Judicial Magistrate, as the case may be in contradiction to the
authority earlier having been exercised by the State Government and the District Magistrate alone in
respect of conferment of power on Magistrate. Reference to the High Court in the present section in
addition to the State Government, has been considered necessary since in many places the High Court
is being made the authority for conferring power in judicial matters.125
125 See Law Commission’s 41st Report, vol I, p 33, para 3.15.
End of Document
Mmaneesh Bajpai
[s 35] Powers of Judges and Magistrates exercisable by their successors-inoffice.-
(1) Subject to the other provisions of this Code, the powers and duties of a Judge or
Magistrate may be exercised or performed by his successor-in-office.
(2) When there is any doubt as to who is the successor-in-office of any Additional or
Assistant Sessions Judge, the Sessions Judge shall determine by order in writing the
Judge who shall, for the purposes of this Code or of any proceedings or order
thereunder, be deemed to be the successor-in-office of such Additional or Assistant
Sessions Judge.
(3) When there is any doubt as to who is the successor-in-office of any Magistrate, the Chief
Judicial Magistrate, or the District Magistrate, as the case may be, shall determine by
order in writing the Magistrate who shall, for the purposes of this Code or of any
proceedings or order thereunder, be deemed to be the successor-in-office of such
Magistrate.
Sub-sections (2) and (3) do not limit sub-section (1) of the section. It is in cases of doubt that sub-
sections (2) and (3) will come into operation. It cannot be said that until a successor is determined
under sub-sections (2) and (3) there is no successor for the purpose of sub-section (1). If there is no
doubt about who the successor is then that person can exercise the powers under sub-section (1).126
The successor in office of a Magistrate is competent to file complaint under section 340 Code of
Criminal Procedure, 1973.127
[s 35.2] Transfer.—
The Sub-divisional Judicial Magistrate can transfer a case though cognizance of the offence had been
taken by his predecessor in office by virtue of this sub-section as it is not controlled by sub-section
Mmaneesh Bajpai
(3).128
[s 35.3] Issue of process.—
A succeeding Magistrate has power under this section or under section 326 to issue process in a
complaint of which cognizance was already taken.129
[s 35.4] Directions by Assistant Registrar of High Court.—
It was not within the judicial competence of the Assistant Registrar of the High Court to issue
instructions to the successor of the Sessions Judge for proceeding with the trial pending before him de
novo. The Judge shall not abdicate his power in following such instructions.130
126 Ajaib Singh v Joginder Singh, AIR 1968 SC 1422 : 1969 SCR 145 .
127 Ajaib Singh v Joginder Singh, AIR 1968 SC 1422 : 1969 Cr LJ 4 (5, 6) : 1969 SCR 145 .
128 Ajaib Singh v Joginder Singh, AIR 1968 SC 1422 : 1969 Cr LJ 4 : 1969 SCR 145 ; Kamal Krishna De v State, 1977 Cr LJ 1492 ,
1494 (Cal-DB).
129 ML Gulati v JL Birmani, 1986 Cr LJ 770 (Del-DB) : ILR 1985 Delhi 504 .
130 P Sridhar v State of UP, 1976 Cr LJ 1861 (All).
End of Document

[s 36] Powers of superior officers of police.-
Procedure, 21st ed > THE CODE OF CRIMINAL PROCEDURE > CHAPTER IV > A.—Powers of
Superior Officers of Police
CHAPTER IV
A.—POWERS OF SUPERIOR OFFICERS OF POLICE
This Chapter is divided into two parts: Pt A deals with the powers of superior officers of police. Pt B deals
with the very initial stage of a criminal case. When an offence is committed, and before the trial begins,
the police officer has to find out the accused, to investigate the case and to ascertain the evidence against
him. To enable him to do this effectively and speedily, the law casts obligation on every member of the
public to give him assistance (sections 37, 38); or to furnish him with information (section 39). It also lays
special obligations on village and revenue officers, and residents of village, to communicate certain
information which is likely to be within their particular reach (section 40).
Police Officers superior in rank to an officer in charge of a police station may exercise the same
powers, throughout the local area to which they are appointed, as may be exercised by such
officer within the limits of his station.
This section confers powers upon a superior Police Officer, the power that is conferred on officers-in-
charge of a Police Station.1 Under the Code investigation consists generally of the following steps: (1)
Proceeding to the spot, (2) Ascertainment of facts and circumstances of the case, (3) Discovery and
arrest of the suspected offender, (4) Collection of evidence, (5) Formation of opinion. There is no
provision permitting delegation of power regarding forming of opinion as to whether or not there is a
case to place the accused on trial but only a provision entitling superior officers to supervise or
participate under section 36.2 A superior police officer exercising powers under section 36 Code of
Criminal Procedure, 1973 can pass order for further investigation in a case.3 Carrying out of a final
investigation even after taking charge-sheet is a statutory right of the police.4
The legislative intendment of section 36 of Code of Criminal Procedure, 1973 is that all the superior
rank police officers above SHO including the Superintendent of Police should involve in supervising
the investigation to ensure the integrity and quality. The non-use of the provisions of section 36, Code
Mmaneesh Bajpai
of Criminal Procedure, 1973 by the SP and other senior police officers has resulted in free and
unfettered situation to the IOs to conduct the investigation in a casual and cavalier manner and also to
dishonestly manipulate the final reports submitted under section 173, Code of Criminal Procedure,
1973.5
Section 36 does not contain a provision similar to UP Police Regulations, Regn. 486(1)(3) that
investigation shall be made by a police officer higher in rank than the officer charged.6
An Additional Deputy Commissioner of Police Task Force is not a superior officer of the officer-in-
charge of the Police Station.7 The Inspector General of Police will have jurisdiction extending over the
whole of the State.8
In State of Kerala v PB Sourabhan,9 the question was that whether the State Police Chief/Director
General of Police is empowered to appoint a superior police officer to investigate a crime case
registered outside the territorial jurisdiction of such officer. Referring to section 36 Code of Criminal
Procedure, 1973 and section 18(1) of the Police Act, it was held that section 36 does not debar the
exercise of powers by the State Police Chief to appoint any superior officer who, in his opinion, would
be competent and fit to investigate a particular case keeping in view the circumstances thereof. Section
36 Code of Criminal Procedure, 1973 does not fetter the jurisdiction of the State Police Chief to pass
such an order based on his satisfaction. It is the satisfaction of the State Police Chief, in the light of the
facts of a given case that would be determinative of the appointment to be made in which situation the
limits of jurisdiction will not act as fetter or come in the way of exercise of such jurisdiction by the
superior officer so appointed. Such an appointment would not be hedged by the limitations imposed
by section 36 Code of Criminal Procedure, 1973.
Section 36 is not meant to substitute the Magistrate’s power envisaged in section 156(3) of the Code,
though it could supplement the powers of an officer-in-charge of a police station. It is permissible for
any superior officer of police to take over the investigation from such officer-in-charge of the police
station either suo motu or on the direction of the superior officer even that of the Government.10 The
State Government can direct under section 36, higher police officials to investigate the case, and such
directions can be given by the higher officer to his subordinate officer in the police department. When
any police officer referred to in section 36 conducts the investigation that cannot be called in question
as without authority.11
Where the Additional Inspector General of Police got a complaint from the Chief Minister of the State
and who in his turn sent it to the Deputy Superintendent of Police CID who is also superior in rank to
an officer-in-charge of a police station and whose jurisdictional area also extends over the whole State
for investigation, it cannot be said in view of the provisions of section 36 that a procedure unknown to
law was adopted.12 Section 36 authorizes a Superintendent of Police to endorse warrant of arrest in

favour of a Special Police Party constituted for the arrest of a person. But when the endorsement
makes no reference of a warrant of arrest, the arrest of such a person would be illegal.13 In serious
offences like murders, senior police officers like Superintendent of Police should be involved in the
investigation of the case, and Police Manual should be suitably amended.14
Supervision note of the Deputy Superintendent of Police cannot be considered as investigation under
section 36 of the Criminal Procedure Code, submission of second charge sheet as well as cognizance
cannot be taken as legal. Second charge-sheet submitted only on reconsideration of evidence already
collected at the time of earlier submission of the charge sheet cannot be justified.15
Irregularities in investigation will not vitiate the prosecution.16
[s 36.2] “May”.—
The word “may” does not mean “must”.17 The section does not compel but only empowers exercise of
powers.18
[s 36.3] Superior officer empowered to investigate.—
In the case of cognizable offences, it is the duty of every police officer whether he is in charge of a
police station or a superior officer, to make an investigation if and when he receives information about
the commission of such an offence. If he is not inclined to exercise the power conferred on him under
this section, he should make arrangement to have the information recorded by the officer-in-charge of
the concerned police station and investigation made, particularly when it is alleged that the offences
have been committed by the officials in charge of the police station having jurisdiction over the
concerned area or the immediately superior officials or that the offences have been committed with the
complicity and connivance of the officials, it cannot be expected that the victim should register a
complaint with the police station. Naturally, in such cases, he would approach only higher officials
and it is duty of such officials to investigate or cause investigation to be made.19
[s 36.4] Complaint made to Deputy Inspector General of Police.—
Where cognizable offences were complained of having been committed by some persons along with
some police officers, the DIG was bound to follow the procedure prescribed in chapter XII of the
Code.20
1 Duraisamy v Inspector of Police, 1983 Mad LW (Crl) 244 (Mad).

2 HN Rishbud v State of Delhi, AIR 1955 SC 196 : 1955 Cr LJ 526 (531, 532).
3 State of AP v AS Peter, (2008) 2 SCC 383 : AIR 2008 SC 1052 .
4 State of AP v AS Peter, 2008 All SCW 637 (639) : AIR 2008 SC 1052 : (2008) 2 SCC 383 .

5 Babu v State of Karnataka, 2007 Cr LJ 3802 (3805) (DB) : 2007 (5) AIR Kar. R 76 (Kant).
6 State of UP v Surinder Pal Singh, AIR 1989 SC 811 : (1989) 2 SCC 470 : 1989 Cr LJ 998 .
7 A Omkar v Commissioner of Police, Hyderabad, 1997 Cr LJ 2581 (2587, 2588) (AP-DB).
8 State of Bihar v JAC Saldhanna, 1980 Cr LJ 98 (SC) : AIR 1980 SC 326 : (1980) 1 SCC 554 .
9 State of Kerala v PB Sourabhan, (2016) 4 SCC 102 : AIR 2016 SC 1194 : 2016 Cr LJ 1833 : 2016 (3) Scale 118 .
10 Central Bureau of Investigation, Jaipur v State of Rajasthan, 2001 Cr LJ 968 (970) : AIR 2001 SC 668 : (2001) 3 SCC 333 .
11 State of Kerala v Kolakkacan Moosa Hazi, 1994 Cr LJ 1288 (1290, 1291) (Ker); RP Kapoor v Sardar Pratap Singh Kairon, AIR
1961 SC 1117 : 1961 (2) Cr LJ 161 .
12 RP Kapoor v Sardar Pratap Singh Kairon, AIR 1961 SC 1117 : 1961 (2) Cr LJ 161 .
13 Kura Rajaiah alias K Rajanna v Government of Andhra Pradesh, 2007 Cr LJ 2031 (2038) (DB) : 2007 (1) Andh LD (Crl) 845
(AP).
14 Yusuf Bachakhan v State of Karnataka, 2008 Cr LJ (NOC) 1292 : 2008 (5) AIR Kar. R 389 (Kant).
15 Manilal Keshri v State of Bihar, 2006 Cr LJ 3981 (3983) : 2006 (4) East Cri C 221 (Pat).
16 State of Assam v Upendra Nath Rajkhowa, 1975 Cr LJ 354 (Gau-DB).
17 Emperor v Maturanath De, AIR 1932 Cal 850 .
18 Chittaranjan Das v State of WB, AIR 1963 Cal 191 : 1963 Cr LJ 424 .
19 Seethalakshmi v State of TN, 1991 Cr LJ 1037 , 1048 (Mad).
20 Seethalakshmi v State of TN, 1991 Cr LJ 1037 (Mad).
End of Document

[s 37] Public when to assist Magistrates and police.-
Procedure, 21st ed > THE CODE OF CRIMINAL PROCEDURE > CHAPTER IV > B.—Aid to the
Magistrates and the Police
CHAPTER IV
B.—AID TO THE MAGISTRATES AND THE POLICE
[s 37] Public when to assist Magistrates and police.-
Every person is bound to assist a Magistrate or police officer reasonably demanding his aid—
(a) in the taking or preventing the escape of any other person whom such Magistrate or
police officer is authorised to arrest; or
(b) in the prevention or suppression of a breach of the peace; or
(c) in the prevention of any injury attempted to be committed to any railway, canal,
telegraph or public property.
A three-fold duty is imposed on members of the public, who are required to assist a Magistrate or
police officer, (1) in the taking or preventing the escape of an offender; or (2) in the prevention or
suppression of a breach of the peace; or (3) in the prevention of injury to railway, canal, telegraph or
public property. Penalty for omission to do so is provided in section 187, Indian Penal Code. The
demand made on the public should be “reasonable.” Obviously the law does not intend that police
officers should have a general power of calling upon members of the public to join them in doing the
work for which they are paid, such as tracing out the whereabouts of an absconding criminal or
collecting evidence to warrant his conviction.21
21 Joti Prasad v Emperor, (1920) 42 All 314 , 316.
End of Document
Mmaneesh Bajpai
[s 38] Aid to person, other than police officer, executing warrant.-
CHAPTER IV
[s 38] Aid to person, other than police officer, executing warrant.-
When a warrant is directed to a person other than a police officer, any other person may aid in
the execution of such warrant, if the person to whom the warrant is directed be near at hand
and acting in the execution of the warrant.
End of Document
Mmaneesh Bajpai
[s 39] Public to give information of certain offences.-
CHAPTER IV
(1) Every person, aware of the commission of, or of the intention of any other person to
commit, any offence punishable under any of the following sections of the Indian Penal
Code (45 of 1860), namely—
(i) Sections 121 to 126, both inclusive, and section 130 (that is to say, offences against the
State specified in chapter VI of the said Code);
(ii) Sections 143, 144, 145, 147 and 148 (that is to say, offences against the public
tranquility specified in chapter VIII of the said Code);
(iii) Sections 161 to 165-A, both inclusive (that is to say, offences relating to illegal
gratification);
(iv) Sections 272 to 278, both inclusive (that is to say, offences relating to adulteration of
food and drugs, etc);
(v) Sections 302, 303 and 304 (that is to say, offences affecting life);
22 [(v-a) Section 364-A (that is to say, offence relating to kidnapping for ransom, etc.);]
(vi) Section 382 (that is to say, offence of theft after preparation made for causing death,
hurt or restraint in order to the committing of the theft);
(vii) Sections 392 to 399, both inclusive, and section 402 (that is to say, offences of
robbery and dacoity);
(viii) Section 409 (that is to say, offence relating to criminal breach of trust by
public servant, etc.);
(ix) Sections 431 to 439, both inclusive (that is to say, offences of mischief against
property);
(x) Sections 449 and 450 (that is to say, offence of house-trespass);
(xi) Sections 456 to 460, both inclusive (that is to say, offences of lurking house-trespass);
and
Mmaneesh Bajpai
(xii) Sections 489-A to 489-E, both inclusive (that is to say, offences relating to
currency notes and bank notes),
shall, in the absence of any reasonable excuse, the burden of proving which excuse shall
lie upon the person so aware, forthwith give information to the nearest Magistrate or
police officer of such commission or intention.
(2) For the purposes of this section, the term “offence” includes any act committed at any
place out of India which would constitute an offence if committed in India.
This section corresponds to section 44 of the Old Code, 1898. Firstly, with the object of encouraging
the detection of offences in respect of roads, bridges, embankments, light houses, vessels, etc., on the
recommendations of the Law Commission made in 37th and 41st Reports, offences under sections 431
to 434, 437 to 439, Indian Penal Code, 1860, have been included in the present section. The Law
Commission in 41st Report observed:23
Under section 44, every person aware of the commission of, or of the intention to commit, certain specified offences is bound to
give information to the nearest Magistrate or Police Officer. Amongst the sections mentioned at present are sections 435 and 436
of the Indian Penal Code, relating to mischief by fire. With the object of encouraging the detention of similar offences in respect of
roads, bridges, embankments, light houses, vessels etc., the previous Report [37th Report para 176(v)], recommended the addition
of sections 431 to 434 and 437 to 439 of the Indian Penal Code. We agree with this recommendation.
Secondly, anti-social offences relating to adulteration of food and drugs, illegal gratification, criminal
breach of trust by public servants and offences relating to counterfeiting of currency notes, have also
been included in the section.24
This section imposes a duty on every person to give information of certain offences specified in
clauses (i) to (xii) of sub-section (1). Every citizen who has knowledge of the commission of
cognizable offence has a duty to lay information before the police and co-operate with the
investigating officer who is enforced to collect the evidence and if necessary summon the witnesses to
give evidence.25 The duty ceases when the information has reached the police in some other way.26
Penalty for breach is provided in sections 176 and 202 of the Indian Penal Code and penalty for
furnishing false information under section 177 of the Indian Penal Code. In order that section 39
should be attracted the person must be aware of the commission of any offence under the enumerated
sections of the Indian Penal Code. Future contingencies are not sufficient to attract the section. His
duty to inform arises only on his being aware of the commission of an offence.27 There is no statutory
obligation on a citizen to inform the police about other offences which are not mentioned in section
39.28 An accused accomplice has constitutional right to remain silent.29 Section 39 is only a procedural
section, violation of which is not made punishable under any penal statute, but, if a person who has
knowledge or reasonable belief that a person is the offender can be treated as a person who is aware of

the commission of the offence and even if he is not punishable for violating section 39 of the Code of
Criminal Procedure when he harbours or conceals such an offender, he must certainly be guilty for
offence under section 212.30
Failure to report a case of death by accident by electrocution does not fall under this provision.31
The section does not include offence under section 419 or section 468 Indian Penal Code, 1860,32
under section 420 Indian Penal Code, 1860,33 under section 279, 337, 338 or section 304A.34
In case of information relating to commission of a cognizable offence, a statutory obligation is cast on

every citizen to give information to nearest Magistrate or Police Officer. But there is no such
obligation in respect of offences other than those mentioned in section 39. However, no corresponding
obligation is cast on the police to register each information as separate FIR.35
22 Ins. by the Criminal Law (Amendment) Act, 1993 (42 of 1993), section 3 (w.e.f. 22 May 1993).

24 See Report of the Joint Committee of Parliament, dated 4 December 1972, p VIII.
25 State of Gujarat v Anirudhsing, AIR 1997 SC 2780 : AIR 1997 SCW 2758 : 1997 SCC (Cri) 946 , (949, 950) : (1997) 6 SCC 514
: 1997 Cr LJ 3397 .
26 Sada, (1893) Unrep Cr C 674; Gopal Singh, (1892) 20 Cal 316 ; Dashrath Lahanu, (1972) 75 Bom LR 450 .
27 John TS v Kerala, 1984 Cr LJ 753 (Ker); SN Naik v State of Maharashtra, 1996 Cr LJ 1463 (1465) (Bom).
28 SN Naik v State of Maharashtra, 1996 Cr LJ 1463 (1465) (Bom) : 1996 (2) MhLJ 633 .
29 Rakesh Kr Singh v State of Assam, 2003 Cr LJ 3206 (3208, 3209) : (2003) 4 Cur Cri R 9 : (2003) 2 DMC 447 : (2003) 2 Gau LT
126 (Gauh-DB).
30 Sujith v State of Kerala, 2008 Cr LJ 824 (831) (DB) : 2007 (4) Ker LT 987 (Ker).
31 Jothi Bai v State, 1989 Mad LW (Crl) 308 ; SN Naik v State of Maharashtra, 1996 Cr LJ 1463 (1465) (Bom).
32 Jainoon v State, 1990 Mad LW (Crl) 346 .
33 T Kumar Babu v Gireesh Sanghi, 2006 Cr LJ 2839 (2841) : 2006 (3) Rec Cri R 762 (AP).
34 SN Naik v State of Maharashtra, 1996 Cr LJ 1463 (1465) (Bom).
35 Akbaruddin Owaisi v Government of Andhra Pradesh, 2014 Cr LJ 2199 (AP) : 013 (3) Andh LT (Cr) 251.
End of Document

[s 40] Duty of officers employed in connection with the affairs of a village to make
certain report.-
CHAPTER IV
[s 40] Duty of officers employed in connection with the affairs of a village to make
certain report.-
(1) Every officer employed in connection with the affairs of a village and every person
residing in a village shall forthwith communicate to the nearest Magistrate or to the
officer in charge of the nearest police station, whichever is nearer, any information
which he may possess respecting—
(a) the permanent or temporary residence of any notorious receiver or vendor of stolen
property in or near such village;
(b) the resort to any place within, or the passage through, such village of any person
whom he knows, or reasonably suspects, to be a thug, robber, escaped convict or
proclaimed offender;
(c) the commission of, or intention to commit, in or near such village any non-bailable
offence or any offence punishable under section 143, section 144, section 145, section
147, or section 148 of the Indian Penal Code (45 of 1860);
(d) the occurrence in or near such village of any sudden or unnatural death or of any
death under suspicious circumstances or the discovery in or near such village of any
corpse or part of a corpse, in circumstances which lead to a reasonable suspicion that
such a death has occurred or the disappearance from such village of any person in
circumstances which lead to a reasonable suspicion that a non-bailable offence has
been committed in respect of such person;
(e) the commission of, or intention to commit, at any place out of India near such village
any act which, if committed in India, would be an offence punishable under any of
the following sections of the Indian Penal Code (45 of 1860), namely, 231 to 238 (both
inclusive), 302, 304, 382, 392 to 399 (both inclusive), 402, 435, 436, 449, 450, 457 to
460 (both inclusive), 489-A, 489-B, 489-C and 489-D;
Mmaneesh Bajpai
[s 40] Duty of officers employed in connection with the affairs of a village to make certain report.-
(f) any matter likely to affect the maintenance of order or the prevention of crime or the
safety of person or property respecting which the District Magistrate, by general or
special order made with the previous sanction of the State Government, has directed
him to communicate information.
(2) In this section—
(i) “village” includes village-lands;
(ii) the expression “proclaimed offender” includes any person proclaimed as an offender
by any Court or authority in any territory in India to which this Code does not
extend, in respect of any act which if committed in the territories to which this Code
extends, would be an offence punishable under any of the following sections of the
Indian Penal Code (45 of 1860), namely, 302, 304, 382, 392 to 399 (both inclusive),
402, 435, 436, 449, 450 and 457 to 460 (both inclusive);
(iii) the words “officer employed in connection with the affairs of the village” means a
member of the panchayat of the village and includes the headman and every officer
or other person appointed to perform any function connected with the administration
of the village.
This section casts a duty on village officers and persons resident in village to immediately give
information about certain offences and also about certain state of things to the nearest Magistrate or
police officer. The duty cast is absolute and immediate. The offences may otherwise escape even the
vigilance of the police. Penalty for breach of the provisions is provided for in section 176 of the Indian
Penal Code. It may, however, be noted that the provisions of the section are not intended to be
punitive; they are really intended to facilitate receiving of information about offences and consequent
taking of steps either for prevention of the same or apprehension of the offender.
Rule 72 of the Criminal Rules of Practice and Orders 1931 has now become redundant. Now there
does not exist any embargo for an accused to make an extra judicial confession before a Village
Administrative Officer.36 While carrying out his duty to inform the Police or the Magistrate in terms
of section 40 of the Code, the village headman does not act as a public servant removable only by or
with the sanction of the local Government nor he acts in his capacity as Magistrate.37
[s 40.2] Sketch.—
A sketch in sessions case must help the court to understand and appreciate the evidence. Otherwise,
there is no need to mark it as an exhibit. It is the duty of the Public Prosecutor to verify initially
whether the sketch prepared by the Village Officer or Village Assistant has any practical utility in the
case. If the sketch already prepared is deficient in such particulars, there is nothing wrong in arranging
to have another sketch. Even if the Public Prosecutor fails to supply one like that, it is desirable that
the Sessions Judge calls upon the Village Officer or the Village Assistant concerned to prepare
another sketch indicating the necessary particulars. This can be done either before or after framing of
charge or at any other convenient stage so that a sketch would be made available at least during the
final stage of trial.38

[s 40] Duty of officers employed in connection with the affairs of a village to make certain report.-
36 Sivakumar v State by Inspector of Police, 2006 Cr LJ 536 (543) : AIR 2006 SC 653 : 2006 (1) SCC 714 (SC).
37 Sivakumar v State by Inspector of Police, 2006 Cr LJ 536 (543) : AIR 2006 SC 653 : 2006 (1) SCC 714 (SC).
38 Koshy v State, 1991 Cr LJ 1776 , 1779 (Ker-DB).
End of Document

[s 41] When police may arrest without warrant.-
Procedure, 21st ed > THE CODE OF CRIMINAL PROCEDURE > CHAPTER V Arrest of Persons
CHAPTER V ARREST OF PERSONS
(1) Any police officer may without an order from a Magistrate and without a warrant,
arrest any person—
1 [(a) who commits, in the presence of a police officer, a cognizable offence;
(b) against whom a reasonable complaint has been made, or credible informa-tion has
been received, or a reasonable suspicion exists that he has commi-tted a cognizable
offence punishable with imprisonment for a term which may be less than seven years
or which may extend to seven years whether with or without fine, if the following
conditions are satisfied, namely:—
(i) the police officer has reason to believe on the basis of such complaint,
information, or suspicion that such person has committed the said offence;
(ii) the police officer is satisfied that such arrest is necessary—
(a) to prevent such person from committing any further offence; or
(b) for proper investigation of the offence; or
(c) to prevent such person from causing the evidence of the offence to disappear
or tampering with the such evidence in any manner; or
(d) to prevent such person from making any inducement, threat or promise to any
person acquainted with the facts of the case so as to dissuade him from
disclosing such facts to the Court or to the police officer; or
(e) as unless such person is arrested, his presence in the Court when-ever
required cannot be ensured;
and the police officer shall record while making such arrest, his reasons in writing.
2 [Provided that a police officer shall, in all cases where the arrest of a person is not
required under the provisions of this sub-section, record the reasons in writing for not
making the arrest.].
(ba) against whom credible information has been received that he has commi-tted a
cognizable offence punishable with imprisonment for a term which may extend to
Mmaneesh Bajpai
more than seven years whether with or without fine or with death sentence and the
police officer has reason to believe on the basis of that information that such person
has committed the said offence;]
(c) who has been proclaimed as an offender either under this Code or by order of the
State Government; or
(d) in whose possession anything is found which may reasonably be suspected to be
stolen property and who may reasonably be suspected of having committed an
offence with reference to such thing; or
(e) who obstructs a police officer while in the execution of his duty, or who has escaped,
or attempts to escape, from lawful custody; or
(f) who is reasonably suspected of being a deserter from any of the Armed Forces of the
Union; or
(g) who has been concerned in, or against whom a reasonable complaint has been made,
or credible information has been received, or a reasonable sus-picion exists, of his
having been concerned in, any act committed at any place out of India which, if
committed in India, would have been punishable as an offence, and for which he is,
under any law relating to extradition, or otherwise, liable to be apprehended or
detained in custody in India; or
(h) who, being a released convict, commits a breach of any rule made under sub-section
(5) of section 356; or
(i) for whose arrest any requisition, whether written or oral, has been received from
another police officer, provided that the requisition specifies the person to be
arrested and the offence or other cause for which the arrest is to be made and it
appears therefrom that the person might lawfully be arrested without a warrant by
the officer who issued the requisition.
3 [(2) Subject to the provisions of section 42, no person concerned in a non-cognizable
offence or against whom a complaint has been made or credible information has been
received or reasonable suspicion exists of his having so concerned, shall be arrested
except under a warrant or order of a Magistrate.]
Sub-section (1) corresponds to section 54 and sub-section (2) corresponds to section 55 of old Code of
Criminal Procedure, 1973. In sub-section (1), clause (i), the words “whether written or oral” are new
and did not appear in the old Code of Criminal Procedure, 1973. There was a sharp controversy4 as to
whether the requisition included an oral requisition. To remove the doubt the aforesaid words have
been inserted.5
[s 41.2] CrPC Amendment Act, 2008 (5 of 2009), section 5.—
In section 41, in sub-section (1) for clauses (a) and (b), new clauses (a), (b) and (ba) and for sub-
section (2), new sub-section (2) has been substituted, by section 5 of the CrPC (Amendment) Act,
2008 (5 of 2009) (w.e.f. 1 November 2010).
Section 41 relates to power of police to arrest without warrant. Clauses (a) and (b) of sub-section (l)
have been amended to provide that the powers of arrest conferred upon the police officer must be
exercised after reasonable care and justification and that such arrest is necessary and required under

the section. Amendment in sub-section (2) of section 41 has been made to provide that subject to the
provisions of section 42 relating to arrest on refusal to give name and residence, no person shall be
arrested in non-cognizable offence except under a warrant or order of a Magistrate. (Vide Notes on
clauses.)
The amendment of 2008 has broadened the meaning of arrest, by specifying the conditions under
which an arrest is to be made. By bringing in clauses (a) to (e) of sub-section (ii) in this section, the
Legislature has prescribed the parameters warranting arrest of a person, so that an arrest can be
subjected to judicial scrutiny on objective parameters which has necessitated the infringement of a
persons’ fundamental right to personal liberty guaranteed under Article 21 of the Constitution of India.
Accordingly, a police officer can cause an arrest of a person if there exists any of the objective
grounds:
(1) for preventing the person arrested from committing any further offence; or
(2) for the purposes of proper investigation of the offence; or
(3) for preventing the person arrested from causing either disappearance of evidence or tampering
with the evidence; or
(4) for preventing the person arrested from giving any inducement, threat or promise to a witness
for the purposes of either alluring such witness or dissuading the witness from giving his
statement to the police officer or deposing before court; or
(5) for ensuring the presence of the person arrested before a court as and when required for the
purposes of court proceedings.
These parameters are also in consonance with the principles which guide a court of law in entertaining
the prayer of an arrested person for bail.
This section enumerates nine categories of cases in which a police officer may arrest a person without
an order from a Magistrate and without a warrant. General provisions contained in chapter IV and
especially section 41(1)(d) of the Code will have to be read in conjunction with the provisions
contained in sections 155 and 156. If section 155(2) prohibits a police officer from investigating a
non-cognizable offence without an order of the Magistrate then in respect of such an offence a police
officer cannot exercise the powers contained in section 4(1)(d). Section 41 is a depositary of general
powers of the police officer to arrest but this power is subject to certain other provisions contained in
the Code as well as in the special statute to which the Code is made applicable.6 The powers of the
police to arrest a person without a warrant are only confined to such persons who are accused or
concerned with the offences or are suspects thereof. A person who is alleged to have been in
possession of an illicit arm once upon a time, can neither be called presently an accused nor a suspect
thereof.7 An arrest made by a Head Constable, where no power was delegated to him by the SHO, fell
under section 41 and not under section 55. The arrest was held lawful.8 Language of section 41 clearly
suggests that the Police Officer can arrest a person without an order from the Magistrate. Powers

under section 41 Code of Criminal Procedure, 1973 can be exercised without court’s intervention.9
Where the Magistrate orders investigation under section 156(3) of the Code and police registers FIR,
arrest should depend upon the facts and circumstances of the case and should not be resorted to
invariably by the police in every such case. Where complainant has been filed on flimsy ground, the
arrest of the accused may not be justified.10
The right of a person who has been arrested, to inform someone about his arrest and to consult his
lawyer privately, is a fundamental right inherent in Articles 21 and 22.11 An arrest is part of the
investigation and cannot be stayed;12 normally the court should not interfere with the process of
investigation except in rarest of rare cases, and on proof of fact that the police would not act
“reasonably” and “honestly” and would act mala fide or in bad faith.13
Where the matter relating to arrest of the petitioner was subject matter of a writ petition pending
before the High Court, and the respondent had given undertaking not to arrest the petitioner, arrest of
the petitioner in violation of the undertaking was not proper.14
The section is not exhaustive. There are various other Acts, eg Arms Act, Explosives Act, etc., which
also confer such powers on police officers.
The words “police officer” are not defined in the Code. If a police officer makes a wrong arrest under
a bona fide mistake he is protected.15 The arrest even if illegal does not affect the trial of the case.16
This section is not controlled by section 55 which requires a written order when the arrest is made
without a warrant.17 It is not incumbent upon a superior officer of the police to comply with the
formalities mentioned in section 55.18
An accused cannot claim a right to notice/hearing before arrest is made.19
[s 41.4] “Arrest”—Meaning of.—
The term “arrest” is not defined either in the Code or in the various substantive Acts. The word
“arrest”, when used in its ordinary and natural sense, means the apprehension or restraint or the
deprivation of one’s personal liberty. When used in the legal sense, in the procedure connected with
criminal offence, an arrest consists in the taking into custody of another person, under authority
empowered by law, for the purpose of holding or detaining him to answer a criminal charge or of
preventing the commission of a criminal offence. The essential elements required to institute an arrest,
in the above sense, are that there must be an intent to arrest under the authority, accompanied by a
seizure or detention of the person, in the manner known to law, which is so understood by the person
arrested.20 In every arrest there is custody but not vice versa—and both the words “custody” and
“arrest” are not synonymous terms.21

An arrest made by any one, be it a police officer, a private person or a Magistrate as provided under
sections 41 to 44 of the Code, will come within the meaning of the term “arrest” occurring in section
167(5). Once a person is arrested, for the purpose of investigation, the remand is made under section
167. In cases where the accused persons were not arrested by the police, but surrendered before the
Magistrates, the taking into custody of such persons by Magistrates will come within the ambit of the
term “arrest”.22
[s 41.5] Caution and circumspection in arrest.—
If an information relating to a cognizable offence is brought to the notice of the police officer, though
he has the power to arrest, he can still refrain from arresting persons, depending upon the nature of the
offence and the circumstances unfurled not only in the complaint but also during the course of
investigation. This section, of course, gives wide powers to the Police Officer to make an arrest and,
naturally it is necessary while exercising such large powers to be cautious and circumspect.23
The power to arrest under this section shall not be exercised arbitrarily violating dignity and the liberty
of an individual.24 An arrestee has the right to be informed about his arrest and to consult privately
with lawyer. These rights are inherent in Articles 21 and 22(1) of the Constitution and require to be
recognized and scrupulously protected. For effective enforcement of these fundamental rights, the
Supreme Court has issued the following instructions, for compliance:—
1. An arrested person being held in custody is entitled, if he so requests, to have one friend,
relative or other person who is known to him or likely to take an interest in his welfare told, as
far as is practicable, that he has been arrested and where he is being detained.
2. The Police Office shall inform the arrested person when he is brought to the police station, of
this right.
3. An entry shall be required to be made in the Diary as to who was informed of the arrest.
4. It shall be the duty of the Magistrate, before whom the arrestee person is produced, to satisfy
himself that these requirements have been complied with.25
Arrest of a person even in case of cognizable offences is not mandatory where the offence is
punishable with maximum sentence of 7 years imprisonment. The provisions of section 41 A make it
compulsory for the police to issue a notice in all such cases where arrest is not required to be made
under clause (u) of sub-section (1) of the amended section 41. But unwillingness of a person who has
not been arrested to identify himself and to whom a notice has been issued under section 41A, could
be a ground for his arrest. Legislation has laid down various parameters, warranting arrest of a person,
which itself is a check on arbitrary or unwarranted arrest and the right to personal liberty.26
The Supreme Court has held that in cases relating to dowry harassment, police officers should not
automatically make arrests. The practice of mechanically reproducing in case dairy all or most of the

reasons contained in section 41 of the Code for affecting arrest should be discouraged and
discontinued.27
Where a case was registered against the accused for offences under section 120-B, 468, 471, 342 read
with section 34 of the Indian Penal Code, 1860, it was held that none of the offences carry punishment
of more than 7 years and as such section 41 has to be complied with. Thus, arrests made by police
without recording reasons violate not only section 41 but also the fundamental right guaranteed under
Article 21 of Constitution.28
In the case of arrests made during election campaign, the Andhra Pradesh High Court has cautioned
that all political parties should have equal opportunity to participate in election campaigns and as such
no one should be unnecessarily arrested and harassed, except, where his arrest is required bona fide for
the purpose of investigation.29
[s 41.6] “May … arrest”.—
The words may arrest show that the power of arrest is discretionary. A police officer is not always
bound to arrest for a cognizable offence.30 Even if cognizable offence is disclosed in the FIR or
complaint the arrest of the accused is not a must, rather the police officer should be guided by the
decision of the Supreme Court in Joginder Kumar v State of UP,31 before deciding whether to make an
arrest or not.32 The power of arrest under section 41 given to the police is not absolute and is not to be
exercised in arbitrary manner, but judiciously,33 subject to the limitations specified under the
provisions of Code of Criminal Procedure, 1973.34
No arrest is to be made because it is lawful for the Police Officer to do so. The Police Officer must be
able to justify the arrest apart from his power to do so.35 Except in heinous offences, arrest would be
avoided.36 Arrest is not a must in every case and there must be sufficient reasons for exercising such
powers by the police officer.37 A person is not liable to be arrested merely on the suspicion of
complicity in an offence.38
[s 41.7] Arrest of Judicial Officer.—
A Magistrate, Judge or any other Judicial Officer is, liable to criminal prosecution for an offence like
any other citizen but in view of the paramount necessity of preserving the independence of judiciary
and at the same time ensuring that infractions of law are properly investigated, the following
guidelines laid by the Supreme Court in Delhi Judicial Service Association, Tis Hazari Court v State
of Gujarat,39 should be followed:
(A) If a Judicial Officer is to be arrested for some offence, it should be done under intimation to
the District Judge or the High Court as the case may be.
(B) If facts and circumstances necessitate the immediate arrest of a Judicial Officer of the
subordinate Judiciary, a technical or formal arrest may be effected.

(C) The fact of such arrest should be immediately communicated to the District and Sessions
Judge of the concerned District and the Chief Justice of the High Court.
(D) The Judicial Officer so arrested shall not be taken to a police station, without the prior order or
directions of the District Judge, if available.
(E) Immediate facilities shall be provided to the Judicial Officer for Communication with his
family members, legal advisers and Judicial Officers, including the District and Sessions
Judge.
(F) No statement of a Judicial Officer, who is under arrest be recorded nor any panchanama be
drawn up nor any medical tests be conducted except in the presence of the Legal Adviser or
the Judicial Officer of equal or higher rank, if available.
(G) There should be no handcuffing of a Judicial Officer. If, however, violent resistance to arrest
is offered or there is imminent need to effect physical arrest in order to avert danger to life and
limb, the person resisting arrest may be over-powered and handcuffed. In such case,
immediate report shall be made to the District & Sessions Judge concerned and also to the
Chief Justice of the High Court. But the burden would be on the police to establish the
necessity for effecting physical arrest and handcuffing the Judicial Officer and if it be
established that the physical arrest and handcuffing of the Judicial Officer was unjustified, the
Police Officers causing or responsible for such arrest and handcuffing would be guilty of
misconduct and would also be personally liable for compensation and, or damages, as may be
summarily determined by the High Court.
The above guidelines are not exhaustive but these are minimum safeguards which must be observed in
case of arrest of a Judicial Officer.40
[s 41.8] “Who has been concerned in any cognizable offence” clause (a).—
Section 41(1)(a) authorizes any police officer to arrest any person even without a warrant, if such a
person sought to be arrested has been concerned in any cognizable offence etc. Where the petitioner is
involved in five cognizable cases, he can be arrested without warrant in view of the provisions of
section 41(1)(a) Code of Criminal Procedure, 1973.41
Where the accused was a Member of Parliament and President of a Political party and was charged for
distinct offences and investigation with regard to other distinct offences was in progress, it was held
that the arresting officer was justified in arresting the accused for conducting proper investigation. It
was further held that where the involvement of the accused in several other distinct offences is within
the knowledge of the investigating agency, the arrest of the accused must be shown in all such distinct
offences, ie, the accused be deemed to have been arrested in all such cases.42
[s 41.9] “Credible information” or “a reasonable suspicion” clause (a).—
A “credible information” or “a reasonable suspicion”, upon which an arrest can be made by a police
officer, must be based upon definite facts and materials placed before him, which the officer must
consider for himself, before he can take any action. It is not enough for arrest of a person, under this
section, that there was likelihood of cognizable offence being committed, in the future.43 The
existence of a warrant is equivalent to credible information,44 and it matters little that the warrant is

not entrusted to the police officer.45
When an arrest is made under suspicion, the police has to carry out investigation without unnecessary
delay and the Magistrate has to be watchful, as the power of arrest without warrant under suspicion is
liable to be abused.46
Arrest and seizure becomes doubtful when no effort was made by police to join any independent
witness amongst several persons present.47
Where a telex message named a person as wanted, for an offence under section 409 of the Malaysian
Penal Code, and requested for holding a discreet enquiry, it cannot be construed as credible
information or reasonable complaint or reasonable suspicion which can empower the police officer to
arrest a person without warrant.48
[s 41.10] Warrantless arrest.—
Warrantless arrest by police, of a person, in a public place, upon probable cause does not violate the
Fourth Amendment of the Constitution of USA.49
[s 41.11] Under NDPS Act.—
Any Police Officer has the right to arrest any person for commission of an offence under the Narcotic
Drugs and Psychotropic Substances Act, 1985.50
[s 41.12] Absence of credible information.—
Where a police constable, on learning that some criminals from outside the station limits, had
assembled at a shop and arrested them without any credible information regarding their involvement
in any offence, the arrest is illegal.51
[s 41.13] Clause (b).—
The police officer must have definite knowledge or at least definite information that a certain person is
in possession of an implement of house-breaking before putting that person under arrest. The making
of an arrest, in the absence of such knowledge or information, is illegal and, therefore, the person has a
right of private defence against it, even though an implement of house-breaking may actually be
found, on searching the person, after the arrest.52
In view of the punishment under sections 18 and 19 of the Transplantation of Human Organ and
Tissue Act, 1994, ie up to 10 years and with fine, it was held that it is not mandatory on the part of
police officer to record reasons in writing for making arrest which is necessary in the case of
cognizable offence punishable with imprisonment for a term which may be less than seven years as
indicated in section 41(1)(b) of the Code.53
[s 41.14] “Any person who has been proclaimed as an offender” (Clause (c)).—
The expression “proclaimed offender” has been defined in section 42(2)(ii).54

[s 41.15] “Who obstructs a public officer…escape from lawful custody” clause (e).—
Under clause (e) a police officer may without an order from a Magistrate and without a warrant, arrest
any person who obstructs a public officer while in the execution of his duty or who has escaped or
attempts to escape from lawful custody.55 Where the petitioners no. 2 to 5 obstructed the respondents
in execution of their duty in arresting the petitioner no. 1, the arrest of petitioners no. 2 to 5 under
clause (e) was proper.56
[s 41.16] Clause (d).—
A person arrested under section 41(1)(d) or under section 151, Code of Criminal Procedure, 1973 on
mere suspicion cannot be said to be a person against whom the commission of a cognizable or non-
bailable offence is alleged or made out and such person cannot, without anything more, be remanded
to judicial custody. On the contrary, such person should be released on bail by invoking the power
under section 436, Code of Criminal Procedure, 1973 treating the case as a bailable one. But the
position would be different, if after such arrest, there is material collected and produced before the
Magistrate to indicate that such person has committed a cognizable or a non-bailable offence.57
[s 41.17] Requisition (Clause (i)).—
The word “requisition” is quite general and covers a telephonic message. A police officer can order
the arrest of a person by means of a telephonic message.58 This clause categorically uses the words
“whether written or oral.” The arrest of the accused by the Head Constable, on the oral direction of the
SHO, was held lawful.59
[s 41.18] Handcuff without justification.—
The police has the power to arrest a person even without obtaining a warrant of arrest from a court.
The amplitude of this power casts an obligation on the police to take maximum care in exercising that
power. The police must bear in mind that if a person is arrested for a crime, his constitutional and
fundamental rights must not be violated. No prisoner shall be handcuffed or fettered routinely or
merely for the convenience of custody or escort. The Court emphasised that the police did not enjoy
any unrestricted or unlimited power to handcuff an arrested person. If having regard to the
circumstances including the conduct, behaviour and character of a prisoner, there is reasonable
apprehension of a prisoner’s escape from custody or disturbance of peace by violence, the police may
put the prisoner under handcuff. If a prisoner is handcuffed without there being any justification, it
would violate the prisoner’s fundamental rights.60
[s 41.19] Non-production of remand prisoners.—
The Madras High Court, while depreciating the practice of jail authorities sending the warrants to the
Courts without sending the remand prisoners, due to want of escorts, directed release of such remand
prisoners on their own bonds.61
[s 41.20] Not an accused.—
A person arrested under section 41(2), cannot be produced before a Judicial Magistrate for obtaining
an order of remand, and no Judicial Magistrate has the power to remand such a person so produced or
brought before him, to custody, as a prisoner, with a view to take proceedings against him under
section 109 or section 110, Code of Criminal Procedure, 1973 and the person arrested under section
41(2) cannot be characterized as an accused within the meaning of that term occurring in section
167(1), nor can it be said that he is an accused of any offence so as to direct him to furnish bail in
compliance with the provisions relating thereto. In security proceedings, a person arrested is termed

only as a counter petitioner. The duty of the Police Officer, after making the arrest under section
41(2), is to place the information before the Executive Magistrate so as to enable him to take
proceedings under section 109 or under section 110, under the mode prescribed in the various
provisions relating to security proceedings under chapter VIII of the Code.62
A person arrested under section 41 cannot be levelled with the term “accused” nor he can be lawfully
forwarded under arrest under section 167(1), and no Magistrate (Judicial or Executive) can assume
legal jurisdiction to deal with the matter relating to the custody of such person.63
[s 41.21] Sub-section (2): Investigation not required.—
In cases of arrests made under sub-section (2) there is no question of trial of any criminal case and
there is no consumption of the case by its ending in any conviction or in acquittal, and as such no
investigation is required.64
[s 41.22] Applicability of section 167.—
Section 167(2) of the Code would apply to arrests made under section 41(1) and in exceptional
circumstances, to arrests made under section 151(1). But the Judicial Magistrate, while remanding or
passing extensions of remands, should be very watchful to see that liberty of a citizen is not violated
by the police arbitrarily and unreasonably. Section 167(2) is not at all applicable to arrests made under
section 41(2) of the Code, and as such, no Court can order remand or extension of remand of person
arrested under section 41(2). The Courts should not mechanically pass orders of remand without
verifying the entries in the diaries and satisfying themselves about the real necessity for granting the
remand or the extension of remand. Under no circumstance, a Magistrate can order the detention of
any person in custody or extend such detention without the production of the accused before him, in
violation of the provisions of the Code, viz., Proviso (b) to section 167(2), whatever may be the reason
stated, by the authorities concerned, for the non-production of the accused before the court, such as the
non-availability of police escorts etc. The jail authorities, who are also very much concerned in the
matter of keeping the prisoners in cellular confinement, should not keep any person without orders of
remand from the concerned Judicial Magistrates, even for a moment beyond the period of detention
already ordered, because if the jail staff keep any person inside the prison, without proper order of
Court, such keeping would tantamount to an illegal detention.65
[s 41.23] Stay of arrest.—
See section 482, Note 412 infra.
[s 41.24] Difference between (1) and (2).—
Under sub-section (1), the Magistrate has been given power to arrest a person who has committed an
offence, in his presence, and also to commit him to custody, while under sub-section (2), he has full
power to arrest a person suspected of having committed an offence, but has not been given any power
to commit him to custody.66
[s 41.25] Illustrative Cases.—
Where there was no allegation in the Kalandra that the petitioner was concealing his presence, she also
did not furnish any false information, time was 9 a.m., the essentials of section 109 Code of Criminal
Procedure, 1973 were not satisfied, proceedings under section 41(2) were held not proper.67

Where two persons had taken liquor and wanted to have some mutual enjoyment, they were not
making preparation for commission of an offence, action under section 41(2) Code of Criminal
Procedure, 1973 was held not warranted.68
[s 41.26] Arresting a female person.—
While arresting a female person the arresting authority shall make all efforts to keep a lady constable
present. But where the Arresting Officer is reasonably satisfied that such presence of a lady constable
is not available or possible and/or the delay in arresting caused by securing the presence of a lady
constable would impede the course of investigation such Arresting Officer for reasons to be recorded
either before the arrest or immediately after the arrest be permitted to arrest a female person for lawful
reasons and any time of the day or night depending on the circum-stances of the case even without the
presence of a lady constable.69
[s 41.27] Territorial jurisdiction.—
Where the offence has been committed within the State of UP but FIR has been filed in New Delhi,
held no cause of action arose in UP, hence the High Court of Allahabad has no territorial jurisdiction
to entertain application of the accused for stay of arrest.70
1 Subs. by the Code of Criminal Procedure (Amendment) Act, 2008 (5 of 2009), section 5 (w.e.f. 1 November 2010). Before
substitution, clauses (a) and (b) stood as under:
“(a) who has been concerned in any cognizable offence, or against whom a reasonable complaint has been made, or credible
information has been received, or a reasonable suspicion exists, of his having been so concerned; or
(b) who has in his possession without lawful excuse, the burden of proving which excuse shall lie on such person, any implement
of house-breaking; or”
2 Ins. by the Code of Criminal Procedure (Amendment) Act, 2010 (41 of 2010), section 2 (w.e.f. 2 November 2010).
substitution, sub-section (2) stood as under:
“(2) Any officer in-charge of a police station may, in like manner, arrest or cause to be arrested any person, belonging to one
or more of the categories of persons specified in section 109 or section 110.”
4 State v Ram Chandra, AIR 1955 All 438 , 440 : 1955 Cr LJ 1120 ; Roshan Lal v Supdt. of Central Jail, AIR 1950 MB 83 .
6 Avinash Mudhukar Makhedkar v Maharashtra, 1983 Cr LJ 1833 (Bom) : 1983 (2) Bom CR 791 ; Meenakshi Agarwal v State of
UP, 2001 Cr LJ 395 (All-DB).
7 Sham Lal v Ajit Singh, 1981 Cr LJ NOC 150 (P&H).

8 Bhootati Konda Murugadu v State of AP, 1996 Cr LJ 3310 (3313) (AP) : 1996 (2) Andh LD 905.
9 Laminarayan Vishwanath Arya v State of Maharashtra, 2008 Cr LJ 1 (11) (FB) : 2007 (5) Mah LJ 7 (Bom).
10 Jagannath Singh v Ajay Upadhyay, 2006 Cr LJ 4274 (4276) : 2006 (2) Bom Cr (Cri) 827 (Bom).
11 Joginder Kumar v State of UP, AIR 1994 SC 1349 : AIR 1994 SCW 1886 : (1994) 4 SCC (Cri) 1172 : 1994 Cr LJ 1981 (SC).
12 Meenakshi Agarwal v State of UP, 2001 Cr LJ 395 (398) : 2000 All LJ 2913 (All-DB); VS Krishnan v State of UP, 2000 Cr LJ 4498
: 2000 All LJ 2154 (All-DB).
13 VS Krishnan v State of UP, 2000 Cr LJ 4498 : 2000 All LJ 2154 (2169) (All-DB).
14 Sudhir M Vora v Commissioner of Police for Greater Bombay, 2004 Cr LJ 2278 (2288) (Bom-DB).
15 Bhawoo Jivaji v Mulji Dayal, (1888) ILR12 Bom 377; Dalip, (1896) 18 All 246 .
16 Emperor v Madho Dhobi, (1903) 31 Cal 557 ; Ravalu Kesigadu, (1902) 26 Mad 124.
17 Keshavlal Harilal v Emperor, AIR 1937 Bom 56 : (1936) 38 Bom LR 971 : (1937) Bom 127, dissenting from Mohamed Ismail,
(1935) 13 Ran 754; Ummed Singh v State of Rajasthan, 2003 Cr LJ 3632 (3636) : (2003) 3 Raj LR 162 : (2003) 4 Raj LW 2290
(Raj-DB).
18 Maharani of Nabha v Province of Madras, (1942) Mad 696 : (1942) 2 Mad LJ 14.
19 Ajeet Singh v State of UP, 2007 Cr LJ 170 (177) (FB) : 2006 (6) All LJ 110 (All).
20 Roshan Beevi v Joint Secretary to Govt. of TN, 1983 Mad LW (Crl) 289 : 1984 Cr LJ 134 ; Nathirasu v State, 1998 Cr LJ 1762
(Raj).
21 Directorate of Enforcement v Deepak Mahajan, AIR 1994 SC 1775 : (1994) 3 SCC 440 : 1994 Cr LJ 2269 (2284): AIR 1994 SC
1775 : (1994) 3 SCC 440 .
22 V Viswanathan v State of Kerala, 1971 Cr LJ 725 : 1971 Mad LJ (Cri) 13; Jagannathan v State, 1983 Mad LW (Cri) 250 ; Niranjan
Singh v Prabhakhar, AIR 1980 SC 785 .
23 Deenan v Jayalalitha, 1989 Mad LW (Crl) 395 : 1990 (1) Crimes 552 (Mad).
24 Kajal Dey v State of Assam, 1989 Cr LJ 1209 (Gau).
25 Joginder Kumar v State of UP, AIR 1994 SC 1349 : AIR 1994 SCW 1886 : 1994 Cr LJ 1981 (1986).

26 Hema Mishra v State of UP, AIR 2014 SC 1066 : (2014) 4 SCC 453 : 2014 Cr LJ 1107 (SC).
27 Arnesh Kumar v State of Bihar, AIR 2014 SC 2756 : (2014) 8 SCC 273 : 2014 Cr LJ 3707 (SC).
29 Jagati Publication Ltd v Central Bureau of Investigation, Hyderabad, 2013 Cr LJ 118 (AP) : 2012 (2) Andh LT (Cr) 285 .
30 Amarawati v State of UP, 2005 Cr LJ 755 (762) : 2005 Crimes 44 (All-FB). (Overruling 1996 Cr LJ 1309 (All); Deenan v
Jayalalitha, 1989 Mad LW (Crl) 395 : (1990) 1 Crimes 552 .
31 Joginder Kumar v State of UP, 1994 Cr LJ 1981 .
32 Amarawati v State of UP, 2005 Cr LJ 755 (762) (FB) (All) : 2005 (1) AWC 416 .
33 State of Rajasthan v Bhera, 1997 Cr LJ 1237 (Raj-DB) : 1997 (1) WLC 745 .
34 Laxmi Narayan v State of Maharashtra, 2007 (5) Mah LJ 7 (Bom-FB).
35 Dinkarro Rajarampaut Pole v State of Maharashtra, 2004 (1) Crimes 1 (7) (Bom-DB).
36 Dinkarro Rajarampaut Pole v State of Maharashtra, 2004(1) Crimes 1 (7) (Bom-DB).
37 Ram Prapanna v State of UP, 2007 Cr LJ (NOC) 439 : 2007 (3) All LJ 97 (All).
38 MD Farooquzzaman v State of Bihar, 2006 (3) Pat LJR 165 (Pat) (Petitioners responsible Government servantsOn undertaking to
appear, arrest stayed).
39 Delhi Judicial Service Association, Tis Hazari Court v State of Gujarat, AIR 1991 SC 2176 : AIR 1991 SCW 2419 : 1991 Cr LJ
3086 (3112).
40 Delhi Judicial Service Association, Tis Hazari Court v State of Gujarat, AIR 1991 SC 2176 : AIR 1991 SCW 2419 : 1991 Cr LJ
3086 , 3122.
(AP).
42 Jagati Publication Ltd v Central Bureau of Investigation, Hyderabad, 2013 Cr LJ 118 (AP) : 2012 (2) All LT(Cri) 285.
43 Easih Mia v Tripura Administration, (1962) 1 Cr LJ 673 .
44 Gopal Singh v King Emperor, (1917) ILR 40 Mad 1028 : (1913) 36 All 6 .

45 Ratna Mudali, (1917) 40 Mad 1028.
46 Shahadat Khan, AIR 1965 Tripura 27 .
47 Pawan Kumar v Delhi Admn, 1989 Cr LJ 127 (Del).
48 M Baskaran v State, 1989 Cr LJ 653 , 658 (Del).
49 United States v D Santara, 1977 Cr LJ 748 (US).
50 RN Kaker v Shabir Fidahusein, 1990 Cr LJ 144 (Bom) : 1989 (1) Bom CR 503 .
51 Sagwan Pasi v State of Bihar, 1978 Cr LJ 1062 (Pat).
52 Abdul Hakim, 1942 All 35 .
54 Mukund Babu Vethe, Re, (1894) ILR 19 Bom 72, overruled by this clause.
(AP).
(AP).
57 Manikandan v SI of Police, Nallalam Police Station, 2008 Cr LJ 1338 (1340) (Ker).
58 Maharani of Nabha v Province of Madras, (1942) Mad 696.
59 Bhootati Konda Murugadu v State of AP, 1996 Cr LJ 3310 (AP) : 1996 (2) Andh LD 905.
60 Delhi Judicial Service Association, Tis Hazari Court, Delhi v State of Gujarat, AIR 1991 SCW 2419 : 1991 Cr LJ 3086 , 3115,
3116; Sunil Batra v Delhi Administration, (1978) 4 SCC 494 : AIR 1978 SC 1675 : 1978 Cr LJ 1741 ; Prem Shankar Shukla v
Delhi Administration, (1980) 3 SCC 526 : AIR 1980 SC 1535 : 1980 Cr LJ 930 ; Re, MP Dwivedi, AIR 1996 SC 2299 (2305) :
(1996) 4 SCC 152 ; Anjani Kumar Sinha v State of Bihar, 1992 (2) Crimes 268 (Pat-DB).
61 P Venkatasubramanian v State of TN, 1984 Mad LW (Crl) 211 .
62 Elumalai v State of TN, 1983 Mad LW (Crl) 121 ; Bhupendra Tripura v State of Tripura, 2002 (2) Crimes 499 (502) (Gauh).

63 Bhupendra Tripura v State of Tripura, 2002 (2) Crimes 499 (502) (Gauh).
64 Elumalai v State of TN, 1983 Mad LW (Crl) 121 .
65 Elumalai v State of TN, 1983 Mad LW (Crl) 121 .
66 Ram Chandra v State of UP, 1977 Cr LJ 1783 (All).
67 Anjali v State of Haryana, 1995 (4) Crimes 31 (32, 33) (P&H).
68 Jai Narain v State of Haryana, 1994 (1) Crimes 394 (P&H).
69 State of Maharashtra v CCC Council of India, 2004 Cr LJ 14 (16) : AIR 2004 SC 7 : (2003) 8 SCC 546 : (2003) 4 Crimes 367
(SC).
70 Meera v State of UP, 2008 Cr LJ (NOC) 935 (DB) : 2008 (4) All LJ 120 (All).
End of Document

[s 41A] Notice of appearance before police officer.-
71 [s 41A] Notice of appearance before police officer.-
(1) 72[The police officer shall], in all cases where the arrest of a person is not required under
the provisions of sub -section (1) of section 41, issue a notice directing the person against
whom a reasonable complaint has been made, or credible information has been received,
or a reasonable suspicion exists that he has committed a cognizable offence, to appear
before him or at such other place as may be specified in the notice.
(2) Where such a notice is issued to any person, it shall be the duty of that person to comply
with the terms of the notice.
(3) Where such person complies and continues to comply with the notice, he shall not be
arrested in respect of the offence referred to in the notice unless, for rea-sons to be
recorded, the police officer is of the opinion that he ought to be arrested.
73 [(4) Where such person, at any time, fails to comply with the terms of the notice or is
unwilling to identify, the police officer may, subject to such orders as may have been
passed by a competent Court in this behalf, arrest him for the offence mentioned in the
notice.]
Where arrest was required on the basis of credible information received against detenue regarding his
involvement in the commission of offence under Transplantation of Human Organ and Tissue Act,
1994, it was held that section 41-A is not attracted is such a case. Section 41-A is applicable in all
such cases where the police officer feels that the arrest of person is not required.74
Where the arrest was not made by following the procedure of arrest and Section was not followed, the
Supreme Court treated it as violation of Article 21 and granted a sum of Rs 5,00,000 (Rs 500000/-
only) towards compensation to each of the petitioners to be paid by the State within three months
hence.75
Mmaneesh Bajpai
[s 41A] Notice of appearance before police officer.-
71 New sections 41A to 41D inserted by the Code of Criminal Procedure (Amendment) Act, 2008 (5 of 2009), section 6 (w.e.f. 01
November 2010).
72 Subs. for the words “The police officer may” by the Code of Criminal Procedure (Amendment) Act, 2010 (41 of 2010), section 3
(w.e.f. 2 November 2010).
substitution, sub-section(4) stood as under:
“(4) Where such person, at any time, fails to comply with the terms of the notice, it shall be lawful for the police officer to
arrest him for the offence mentioned in the notice, subject to such orders as may have been passed in this behalf by a
competent Court.”
75 Dr Rini Johar v State of MP, AIR 2016 SC 2679 : 2016 (5) Scale 780 .
End of Document

[s 41B] Procedure of arrest and duties of offier making arrest.-Every police officer
while making an arrest shall—
[s 41B] Procedure of arrest and duties of offier making arrest.-Every police officer
while making an arrest shall—
(a) bear an accurate, visible and clear identification of his name which will facilitate easy
identification;
(b) prepare a memorandum of arrest which shall be—
(i) attested by at least one witness, who is a member of the family of the person arrested
or a respectable member of the locality where the arrest is made;
(ii) countersigned by the person arrested; and
(c) inform the person arrested, unless the memorandum is attested by a member of his
family, that he has a right to have a relative or a friend named by him to be informed of
his arrest.
End of Document
Mmaneesh Bajpai
[s 41C] Control room at districts.-
[s 41C] Control room at districts.-
(1) The State Government shall establish a police control room—

(a) in every district; and
(b) at State level.
(2) The State Government shall cause to be displayed on the notice board kept outside the
control rooms at every district, the names and addresses of the persons arrested and the
name and designation of the police officers who made the arrests.
(3) The control room at the Police Headquarters at the State level shall collect from time to
time, details about the persons arrested, nature of the offence with which they are
charged, and maintain a database for the information of the general public.
End of Document
Mmaneesh Bajpai
[s 41D] Right of arrested person to meet an advocate of his choice during
interrogation.-
[s 41D] Right of arrested person to meet an advocate of his choice during

interrogation.-
When any person is arrested and interrogated by the police, he shall be entitled to meet an
advocate of his choice during interrogation, though not throughout interrogation.]
Section 41A provides that where a case falls under sub-section (l) of section 41, the police officer
may, instead of arresting the person concerned, issue to him a notice of appearance requiring him to
appear before the police officer. Section 41B lays down the procedure of arrest and duties of officer
making arrest. Section 41C requires the State Government to establish a police control room in every
district and at the State level, where the names and addresses of the persons arrested, nature of
offences with which they are charged, and the name and designation of the police officers who made
the arrest are to be displayed. Section 41D makes provisions for right of the arrested persons to meet
an advocate of his choice during the interrogation, though not throughout interrogation. (Vide Notes
on Clauses.).
End of Document
Mmaneesh Bajpai
[s 42] Arrest on refusal to give name and residence.-
(1) When any person who, in the presence of a police officer, has committed or has been
accused of committing a non-cognizable offence refuses, on demand of such officer, to
give his name and residence or gives a name or residence which such officer has reason
to believe to be false, he may be arrested by such officer in order that his name or
residence may be ascertained.
(2) When the true name and residence of such person have been ascertained, he shall be
released on his executing a bond, with or without sureties, to appear before a Magistrate
if so required:
Provided that, if such person is not resident in India, the bond shall be secured by a
surety or sureties resident in India.
(3) Should the true name and residence of such person not be ascertained within twenty-
four hours from the time of arrest or should he fail to execute the bond, or, if so
required, to furnish sufficient sureties, he shall forthwith be forwarded to the nearest
Magistrate having jurisdiction.
A step little short of arrest is the ascertainment of the name and residence of a person. The section
applies only to a person (1) who commits a non-cognizable offence in the presence of a police officer,
or (2) who is accused of committing such offence before such officer. If the name and address are
ascertained or are otherwise known to the police officer,76 the person is to be released on his executing
a bond to appear before a Magistrate. If the person does not give his name or residence77 or gives a
name and residence which the police officer believes to be false, he may be taken into custody
pending the ascertainment. He can, on no account, be detained beyond twenty-four hours, but should
be placed before a Magistrate.
Mmaneesh Bajpai
76 Gopal Naidu v King Emperor, (1922) 46 Mad 605, FB.
77 Goolab Rasul, (1903) 5 Bom LR 597 .
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[s 43] Arrest by private person and procedure on such arrest.-
(1) Any private person may arrest or cause to be arres-ted any person who in his presence
commits a non-bailable and cognizable offence, or any proclaimed offender, and, without
unnecessary delay, shall make over or cause to be made over any person so arrested to a
police officer, or, in the absence of a police officer, take such person or cause him to be
taken in custody to the nearest police station.
(2) If there is reason to believe that such person comes under the provisions of section 41, a
police officer shall re-arrest him.
(3) If there is reason to believe that he has committed a non-cognizable offence, and he
refuses on the demand of a police officer to give his name and residence, or gives a name
or residence which such officer has reason to believe to be false, he shall be dealt with
under the provisions of section 42; but if there is no sufficient reason to believe that he
has committed any offence, he shall be at once released.
This section corresponds to section 59 of old Code of Criminal Procedure, 1973. In the present Code,
in sub-section (1) for the word “view” the word “presence” has been substituted. In sub-section (1) the
words “cause to be arrested” and the words “or cause to be made over”, which did not appear in sub-
section (1) of old section 59 have been added. The Law Commission in 41st Report observed:
5.6. Section 59 deals with the right of a private person to arrest any person who “in his view” commits a non-bailable and
cognizable offence. Two points pertaining to this section were considered in the previous Report. The first point [37 Report, para
200(i)], was whether it is necessary to replace the words “in his presence”. The case-law on the subject was examined, but it was
considered unnecessary to make any change. The matter was raised again before Court, and it was stressed that a verbal alteration
was desirable, since the word “view” might also mean “opinion”. As this point has provoked considerable discussion, the Court
was of the opinion that the opportunity may be taken to clarify it. Both in section 57 and in section 64, the words “in his presence”,
are used to express the same idea. We propose that the words “in his presence” may be substituted for the words “in his view” in
section 59(1) also. The second point,78 was that the section would expressly enable the private person not only to arrest the
offender himself, but also “to cause him to be arrested.79
Mmaneesh Bajpai
A private person is entitled to arrest or cause to be arrested any person (1) who in his presence80
commits a non-bailable and cognizable offence, or (2) who is a proclaimed offender. He must, without
unnecessary delay, make over such person to a police officer, or either take him or cause him to be
taken81 to the nearest police station. If such person is liable to be arrested under section 41, he shall be
re-arrested by the police officer. If he is believed to have committed a non-cognizable offence, his
name and residence are to be ascertained. If he is believed to have committed no offence, he is to be
set at liberty. If a police officer outside the State arrests a proclaimed offender in his private capacity,
he is authorized to do so under section 43 Code of Criminal Procedure, 1973.82
Under section 43, even private persons can arrest a person, if he is found engaged in commission of
non-bailable and cognizable offence. Under the same provision, the person making the arrest is also
entitled to make over the person so arrested to a Police Officer.83 Under section 43 even a private
individual can have authority to take culprit in custody. But that power is not unlimited, rather it is a
limited one which would be evident from the provision as enshrined in section 43.84
Section 43 empowers a private person to arrest or cause to be arrested (i) a proclaimed offender (ii)
any person, who in his presence commits non-bailable and cognizable offence but not after the
completion of such offence.85
This right of arrest arises under the common law which applies to India.86
[s 43.3] “In his presence” (Sub-section (1)).—
The words “in his presence” cannot be extended to mean “in his opinion” or “in his suspicion”.
Where, therefore, an individual seeing a person fleeing with a knife in his hand pursued by others,
tries to arrest him, his exercise of power of arrest cannot be brought under this section.87
[s 43.4] Private defence.—
The right of private defence, provided under section 100 Indian Penal Code, 1860, is not available to
an accused who has assaulted a private person who tried to arrest him, as the arresting person did not
intend to wrongfully confine him, as contemplated in this section, and such an attempt was merely to
wrongfully restrain him intending to take him to the police station.88
78 Vide Law Commission’s 37th Report, p 57, para 200.

79 Vide Law Commission’s 41st Report, vol I, p 38, para 5.6.

80 Kura Rajaiah alias K Rajanna v Government of Andhra Pradesh, 2007 Cr LJ 2031 (2038) (DB) : 2007 (1) Andh LD (Cr LJ) 845
(AP); Bolai De, (1907) 35 Cal 361 ; Venkayya, (1955) Andhra 718; Durga Singh v Md Isa, (1963) 1 Cr LJ 827 .
81 Queen Empress v Potadu, (1888) ILR 11 Mad 480; Johri, (1901) 23 All 266 ; Parsiddhan Singh, (1907) 29 All 575 .
(AP).
83 Saleem v State of Kerala, 2001 (2) All LT (Crl) 357 (360) (Ker).
84 Radha Sah v State of Jharkhand, 2007 Cr LJ 2805 (Jhar).
85 Radha Sah v State of Jharkhand, 2007 Cr LJ 2805 (2807, 2808) : 2007 (2) JLJR 75 (Jhar).
86 Ramaswamy Ayyar, Re, (1921) ILR 44 Mad 913.
87 Abdul Habib v State, 1974 Cr LJ 248 (All-DB).
88 Abdul Habib v State, 1974 Cr LJ 248 (All-DB).
End of Document

[s 44] Arrest by Magistrate.-
[s 44] Arrest by Magistrate.-
(1) When any offence is committed in the presence of a Magistrate, whether Executive or
Judicial, within his local jurisdiction, he may himself arrest or order any person to arrest
the offender, and may thereupon, subject to the provisions herein contained as to bail,
commit the offender to custody.
(2) Any Magistrate, whether Executive or Judicial, may at any time arrest or direct the
arrest, in his presence, within his local jurisdiction, of any person for whose arrest he is
competent at the time and in the circumstances to issue a warrant.
There is a subtle difference between clause (1) and clause (2) of section 44. Under clause (1), the
Magistrate has been given power to arrest a person who has committed an offence in his presence and
also to commit him to custody. Under clause (2), the Magistrate has power to arrest a person who is
suspected of having committed an offence but has not been given any power to commit him to
custody. The omission of this power, to commit such suspect to custody, is not accidental but
deliberate.89 In the latter case, committing to custody will have to be done in accordance with sections
57 and 167 of the Code.
89 Ram Chandra v UP, 1977 Cr LJ 1783 (All).
End of Document
Mmaneesh Bajpai
[s 45] Protection of members of the Armed Forces from arrest.-
(1) Notwithstanding anything contained in sections 41 to 44 (both inclusive), no member of

the Armed Forces of the Union shall be arrested for anything done or purported to be
done by him in the discharge of his official duties except after obtaining the consent of
the Central Government.
(2) The State Government may, by notification, direct that the provisions of sub-section (1)
shall apply to such class or category of the members of the Force charged with the
maintenance of public order as may be specified therein, wherever they may be serving,
and thereupon the provisions of that sub-section shall apply as if for the expression
“Central Government” occurring therein, the expression “State Government” were
substituted.
Assam.—The following amendments were made by Assam (Presi) Act 3 of 1980, section 2
(w.e.f. 5 June 1980).
Section 45 (2).—In its application to State of Assam for section 45(2) substitute the
following:—
(2) The State Government may, by notification, direct that the provisions of sub-section
(1) shall apply—
(a) to such class or category of the members of the Forces charged with the maintenance of
public order, or
(b) to such class or category of other public servants (not being persons to whom the
provisions of sub-section (1) apply) charged with the maintenance of public order.
as may be specified in the notification wherever they may be serving, and thereupon the
provisions of that sub-section shall apply as if for the expression “Central Government”
Mmaneesh Bajpai
occurring therein, the expression “State Government” were substituted.
This is a new provision, seeking to protect the members of the armed forces from arrest, where they do
or purport to do something in the discharge of their official duties. They can, of course, be proceeded
against after obtaining consent of the Central Government. The State Government is also similarly
empowered, under sub-section (2), to extend the protection afforded in sub-section (1) to specified
class of members of the force maintaining public order.
This section provides for protection for members of Armed Force from arrest. In a case, a Major of the
Indian Army who was posted in Assam, along with other army personnel and two or three person in
civil dress, brutally assaulted a person resulting in his death. On a case being filed, the accused Major
avoided appearance in the court. Ultimately charge-sheet was submitted in the court showing him as
absconder. When the Chief Judicial Magistrate pursued the matter through his higher officers and
issued warrant of arrest against him, he approached the High Court questioning the legality of the
criminal proceeding for want of previous sanction. He further claimed protection under this section. It
was held by the High Court that the occasion for such protection had not arisen and the request for
protection was premature.90
90 Sowmithri v State of Assam, 2012 Cr LJ 4278 (Gau) : 2013 (1) GLD 295 (Gau).
End of Document

[s 46] Arrest how made.-
(1) In making an arrest the police officer or other person making the same shall actually
touch or confine the body of the person to be arrested, unless there be a submission to
the custody by word or action:
91 [Provided that where a woman is to be arrested, unless the circumstances indicate

to the contrary, her submission to custody on an oral intimation of arrest shall be
presumed and, unless the circumstances otherwise require or unless the police officer
is a female, the police officer shall not touch the person of the woman for making her
arrest.]
(2) If such person forcibly resists the endeavour to arrest him, or attempts to evade the
arrest, such police officer or other person may use all means necessary to effect the
arrest.
(3) Nothing in this section gives a right to cause the death of a person who is not accused of
an offence punishable with death or with imprisonment for life.
92 [(4) Save in exceptional circumstances, no woman shall be arrested after sunset and
before sunrise, and where such exceptional circumstances exist, the woman police officer
shall, by making a written report, obtain the prior permission of the Judicial Magistrate
of the first class within whose local jurisdiction the offence is committed or the arrest is
to be made.]
[s 46.1] Legislative changes in section 46—CrPC (Amendment) Act, 2005 (25 of 2005).—
In section 46 of the principal Act, after sub-section (3), the following sub-section shall be inserted,
namely:
(4) Save in exceptional circumstances, no woman shall be arrested after sunset and before sunrise, and where such exceptional
circumstances exist, the woman police officer shall, by making a written report, obtain the prior permission of the Judicial
Mmaneesh Bajpai
Magistrate of the first class within whose local jurisdiction the offence is committed or the arrest is to be made.
Notes on Clauses
A new sub-section (4) is being added to section 46 to prohibit arrest of a woman after sunset and before sunrise except in
unavoidable circumstances. (Notes on Clauses, clause 6).
923(E), dt. 21 June 2006.
[s 46.2] CrPC Amendment Act, 2008 (5 of 2009).—
In section 46, in sub-section (1), a proviso has been added, by section 7 of the CrPC (Amendment)
Act, 2008 (5 of 2009). Section 46 lays down the procedure on how arrest is to be made. A proviso has
been added to sub-section (l) so as to provide that where a woman is to be arrested, unless the
circumstances otherwise require or unless the police officer is a female, the police officer shall not
touch the person of the woman to arrest her. (Vide Notes on Clauses.) The new provision has been
made on the recommendations of the Law Commission in its 135th Report on “Women in Custody”
and 154th Report.
This section describes the mode in which arrests are to be made. The word “arrest”, when used in its
ordinary and natural sense, means the apprehension or restraint or the deprivation of one’s personal
liberty to go where he pleases. When used in the legal sense in the procedure connected with criminal
offences, an arrest consists of taking into custody of another person under authority empowered by
law, for the purpose of holding or detaining him to answer a criminal charge and preventing the
commission of a criminal offence. The words “custody” and “arrest” are not synonymous. It is true
that in every arrest there is custody but vice versa is not true. Mere utterance of words or gesture or
flickering of eyes does not amount to arrest. Actual seizure or touch of a person’s body, with a view to
arresting, is necessary. If the method of arrest is not performed as prescribed by section 46, the arrest
would be nugatory.93
A direction under section 438 Code of Criminal Procedure, 1973 is intended to confer conditional
immunity from the touch as envisaged by section 46(1) or confinement.94

A person whose control is taken over by law either when he voluntarily surrenders before the court or
by an officer by coercive measure is said to be in custody for the purpose of criminal proceedings.95
Where a person is confined or kept in the police station or his movements are restricted within the
precincts of a police station, it amounts to arrest within the meaning of section 46.96
When the court has refused to interfere with the investigation, in normal course it should not interfere
with the power of the police to arrest a particular person.97
[s 46.4] Actual contact.—
The arrest, being a restraint on the liberty of the arrested person, unless there is submission as
contemplated, an actual contact will be necessary to effect the arrest. In short, arrest is a formal mode
of taking a person into police custody.98 The essential elements to constitute an arrest are that there
must be an intent to arrest under the authority, accompanied by a seizure or detention of the person in
the manner known to law, which is so understood by the person arrested.99 When a person, not in
custody, approaches a Police Officer investigating an offence and offers to give information leading to
the discovery of a fact having a bearing on the charge which may be made against him, he may be
appropriately deemed to have surrendered himself to the police. This section does not contemplate any
formality before a person can be said to be taken in custody; submission to the custody by word or
action by a person is sufficient.100 Arrest can be by spoken words, handcuffing is not necessary.101
[s 46.5] “All means” (Sub-section (2)).—
The words “all means” are very wide and include the taking of assistance from others in effecting the
arrest.102
Where fire was opened to disperse an unlawful assembly and death of an innocent person was caused,
section 46 could not be invoked for the protection of the police officers.103
When an arrest is made under a warrant, the police officer must notify the substance thereof to the
person to be arrested, or if so required, must show him the warrant (section 75), else the arrest is not
legal.104 Where a person, not in custody, approaches a police officer investigating an offence and
offers to give information leading to the discovery of fact having a bearing on the charge which may
be made against him, he may appropriately be deemed to have submitted to the custody within the
meaning of this section.105 A Court would not issue a general mandamus asking the police to enter a
place of worship, whenever a criminal is suspected to have taken shelter in such a place regardless of
the overall situation of law and order.106 Section 47 is an enabling provision and is required by the
police to be used with regard to exigencies of a situation. It is not bound to use it.

[s 46.7] Live wire mechanism to prevent escape.—
The installation of live wire mechanism on the jail walls to prevent escape of prisoners, does not
offend against the command of this sub-section even on the assumption that sub-section (3) covers the
re-arrest of a prisoner who has escaped from lawful custody. It is a preventive measure intended to act
as a deterrent and can cause death only if a prisoner courts death by scaling the wall while attempting
to escape from lawful custody.107
[s 46.8] Proof of arrest.—
A mere statement of the investigating officer about the arrest of the accused without mentioning the
time and place of arrest, does not prove arrest.108
[s 46.9] Arrest of woman after sunset and before sun rise (Sub-section 4).—
Sub-section (4) prohibits the arrest of a woman after sun set and before sun rise except in unavoidable
circumstances. When it is intended to arrest a woman after sun set and before sun rise, the woman
police officer shall obtain the prior permission in writing of the Judicial Magistrate of the first class
within whose local jurisdiction the offence is committed or arrest is to be made.
923(E), dt. 21 June 2006.
[s 46.10] Death in police custody/action—Compensation.—
Where a person dies in police custody or in police action, the victim is entitled to compensation both
in public law as well as in private law.109 Where the accused was a surrendered militant involved in
kidnapping of a minor girl, when tried to escape police officers fired gun shots to prevent his
absconding and he sustained injuries, the police officers had no ill-will or malice against the militant,
State was directed to pay compensation.110
SO 923(E), dated 21 June 2006).
93 Roshan Beebi v Joint Secretary to Government of Tamil Nadu, 1984 Cr LJ 134 (Mad-FB) : AIR 1984 NOC 103 (Mad).
94 Pokar Ram v State of Rajasthan, AIR 1985 SC 969 : (1985) 2 SCC 597 : 1985 Cr LJ 1175 (1176).
95 State of Haryana v Dinesh Kumar, 2008 AIR SCW 696 (702) : AIR 2008 SC 1083 : 2008 (1) SCC (Cri) 722 .

96 Kultej Singh v Circle Inspector of Police, 1992 Cr LJ 1173 (1174) (Kant-DB).
97 Mohd. Nazim v State, 1998 Cr LJ 1089 (1099) (All).
98 Thaniel Victor v State, 1991 Cr LJ 2416 , 2420, 2421 (Mad).
99 Thaniel Victor v State, 1991 Cr LJ 2416 : 1991 (1) Crimes 354 , 359 (Mad).
100 State of UP v Deoman Upadhyaya, AIR 1960 SC 1125 : 1960 Cr LJ 1504 ; Andrew Fernandes v State of Goa, 1992 (1) Crimes
692 , 698 (Bom-DB).
101 Birendra Kumar Rai v UOI, 1992 Cr LJ 3866 , 3880, 3881 (All-FB).
102 Nazir, (1952) 1 All 445 (FB).
103 Karam Singh v Hardayal Singh, 1979 Cr LJ 1211 (Punj).
104 Amar Nath, (1883) 5 All 318 .
105 State of UP v Deoman Upadhyaya, 1960 Cr LJ 1504 : AIR 1960 SC 1125 , 1131.
106 Hindustani Andolan v Punjab, AIR 1984 SC 582 : (1984) 1 SCC 204 : 1984 Cr LJ 299 (SC).
107 D Bhuvan Mohan Patnaik v State of AP, AIR 1974 SC 2092 , 2097 : (1975) 3 SCC 185 : 1975 Cr LJ 556 .
108 Rahimal v State of UP, 1992 Cr LJ 3819 (3821) (All-DB).
109 Nangkhujam Mungsong v Thokchom Ongbi Gambhini Devi, 2007 Cr LJ 1491 (1494) (Gauh); DK Basu v State of WB, AIR 1997 SC
610 : 1997 AIR SCW 233 : 1997 Cr LJ 743 .
110 Nangkhujam Mungsong v Thokchom Ongbi Gambhini Devi, 2007 Cr LJ 1491 (1494) (Gauh); DK Basu v State of WB, AIR 1997 SC
610 : 1997 AIR SCW 233 : 1997 Cr LJ 743 .
End of Document

[s 47] Search of place entered by person sought to be arrested.-
(1) If any person acting under a warrant of arrest, or any police officer having authority to
arrest, has reason to believe that the person to be arrested has entered into, or is within,
any place, any person residing in, or being in charge of, such place shall, on demand of
such person acting as aforesaid or such police officer, allow him free ingress thereto, and
afford all reasonable facilities for a search therein.
(2) If ingress to such place cannot be obtained under sub-section (1), it shall be lawful in any
case for a person acting under a warrant and in any case in which a warrant may issue,
but cannot be obtained without affording the person to be arrested an opportunity of
escape, for a police officer to enter such place and search therein, and in order to effect
an entrance into such place, to break open any outer or inner door or window of any
house or place, whether that of the person to be arrested or of any other person, if after
notification of his authority and purpose, and demand of admittance duly made, he
cannot otherwise obtain admittance:
Provided that, if any such place is an apartment in the actual occupancy of a female
(not being the person to be arrested) who, according to custom, does not appear in
public, such person or police officer shall, before entering such apartment, give notice
to such female that she is at liberty to withdraw and shall afford her every reasonable
facility for withdrawing, and may then break open the apartment and enter it.
(3) Any police officer or other person authorised to make an arrest may break open any
outer or inner door or window of any house or place in order to liberate himself or any
other person who, having lawfully entered for the purpose of making an arrest, is
detained therein.
Sub-section (2) corresponds to section 48 of the Old Code, 1898. The word “female” in the proviso to
sub-section (2), for the word “woman” occurring in the proviso to old section 40 has been substituted.
Mmaneesh Bajpai
It is impossible and undesirable for any court to issue a general mandamus to the effect that whenever
a criminal is suspected to have taken shelter in a place of worship, the police must enter that place
regardless of the overall situation of law and order.111
111 Hindustani Andolan v State of Punjab, AIR 1984 SC 582 : (1984) 1 SCC 204 : 1984 Cr LJ 299 (300).
End of Document

[s 48] Pursuit of offenders into other jurisdictions.-
[s 48] Pursuit of offenders into other jurisdictions.-
A police officer may, for the purpose of arresting without warrant any person whom he is
authorised to arrest, pursue such person into any place in India.
This section corresponds to section 58 of old Code of Criminal Procedure, 1973 with omission of the
words “under this Chapter” after the word “arrest”.
Ordinarily, a police officer is not at liberty to go outside India and to arrest there an offender without a
warrant. If he is pursuing an offender whom he can arrest without warrant, and such offender escapes
into any place in India, he can be pursued and arrested by a police officer without warrant. See also
section 60.
The arrest of a person by the police officer investigating an offence, in pursuit of an offender, is legal
though it is made outside his circle.112 An accused, even if in judicial custody, can be formally arrested
in respect of any number of other crimes registered elsewhere in the country.113
112 Manbodh, (1955) Nag 23; C Natesan v State of TN, 1999 Cr LJ 1382 (Mad).
113 C Natesan v State of TN, 1999 Cr LJ 1382 (1388) (Mad); see also CBI v Anupam J Kulkarni, AIR 1992 SC 1768 : (1992)3 SCC
141 : 1992 Cr LJ 2768 .
End of Document
Mmaneesh Bajpai
[s 49] No unnecessary restraint.-
[s 49] No unnecessary restraint.-
The person arrested shall not be subjected to more restraint than is necessary to prevent his
escape.
End of Document
Mmaneesh Bajpai
[s 50] Person arrested to be informed of grounds of arrest and of the right to bail.-
(1) Every police officer or other person arresting any person without warrant shall
forthwith communicate to him full particulars of the offence for which he is arrested or
other grounds for such arrest.
(2) Where a police officer arrests without warrant any person other than a person accused
of a non-bailable offence, he shall inform the person arrested that he is entitled to be
released on bail and that he may arrange for sureties on his behalf.
This section was inserted only in Act 2 of 1974.
This section provides that (1) the person arrested without any warrant should immediately be
intimated the full particulars of the offence and the grounds for his arrest; and (2) where the offence is
a bailable one, of his right to be released on bail.114 In every case where cognizable offence is
disclosed, the arrest of the accused is not a must, it is at the discretion of the police officer to arrest or
not to arrest, and the discretion cannot be arbitrary.115
[s 50.3] Mandatory provision.—
The section is mandatory. So, when a person is arrested without a warrant and without the
communication of particulars of the offence, the arrest and detention is illegal.116 In the event of non-
compliance of the provisions of the section, the arrest is illegal and the person arrested or any other
person, is entitled to resist, such an arrest under law.117
An accused must be informed of the bare necessary facts leading to his arrest. It is difficult to
prescribe any form in which the information must be given. An arrested person, must, know the
grounds and the reasons, and the facts that in respect of whom and by whom the offence is said to
have been committed as well as the date, time and place of offence etc.118 An arrestee must be
communicated the grounds of his arrest, which is a constitutional safeguard, provided under chapter
Mmaneesh Bajpai
III of the Constitution.119
No strait-jacket formula can be laid down so as to come to the conclusion whether the grounds and full
particulars of the offence have been communicated to the accused person or not.120 Where it is urged
that the provisions of section 50(1) Code of Criminal Procedure, 1973 have not been complied with,
the burden lies on the prosecution to establish the compliance of the provisions of section 50. The
denial on the part of the accused need not be on affidavit.121 Where the accused committing crime is
arrested on the spot, and given to the police, it is to be reasonably presumed that he knows the reasons
of his detention, further disclosure of reasons is not necessary. The detention was held not invalid for
non-compliance of section 50 Code of Criminal Procedure, 1973.122 Even where the provisions of
section 50 Code of Criminal Procedure, 1973 are not observed in making an arrest, it would not affect
the order remanding the accused to custody or releasing him on bail.123 Where illicit arms were
recovered from the accused, general diary contained recital that at the time of arrest, memo was given
to the accused, it was held that grounds of arrest were communicated to the accused, and the
provisions of section 50 Code of Criminal Procedure, 1973 were complied with.124 Where the bail
application filed by the accused not mentioned all the sections under which he was arrested, it shall be
presumed that the accused was informed of the grounds of his arrest, and the provisions of section 50
Code of Criminal Procedure, 1973 shall be deemed to have been complied with.125 The police officer
cannot keep the reasons to himself; a citizen is entitled to know them. A person is entitled to know the
grounds of his arrest. This is a constitutional right guaranteed under Article 22(1) of the Constitution.
Section 50 of the Code is in conformity with Article 22(1) of the Constitution. The section confers a
valuable right, and the non-compliance with it amounts to disregard of the procedure established by
law.126 The allegation that the grounds of arrest or the particulars of arrest, as would be enough to
enable him to file an application for a writ of habeas corpus, were not given, has to be proved by the
person making such an allegation.127
Whether the provisions of section 50(1) have been complied with in a particular case is a question of
fact, and not a question of law, and has to be adjudicated on the basis of the material on record of the
case.128
Where arrest of a detenue was made without order from a Magistrate and without a warrant and the
ground of arrest was not communicated to him, it was held that the arrest was violative of Article
22(1) and section 50 of the Code. The said illegality cannot be cured by an action like remand by
Magistrate.129
A fugitive accused was arrested pursuant to warrant of arrest issued by Chief Judicial Magistrate on
the request of Government of India. It was held that he need not be informed of the grounds of his
arrest and the right to bail.130

114 See Re, Madhu Limaye, AIR 1969 SC 1014 : (1969) 1 SCC 292 : 1969 Cr LJ 1440 ; see also Christie v Leachinsky, (1974) 1 All
ER 567 .
115 Amarawati v State of UP, 1996 Cr LJ 1347 (1349) (All).
116 Ajit Kumar Sannah v State of Assam, 1976 Cr LJ 1303 (Gau-DB); Sheesh Ram v State of UP, 2006 (55) ACC 750 (All).
117 Setrucharala Chandrasekhara Raju v State of AP, 2001 (3) Crimes 152 (AP).
118 Vikram v State, 1996 Cr LJ 1536 (1539) (All-FB).

122 Om Prakash Dwivedi v State, 1996 Cr LJ 603 (All); Sheesh Ram v State of UP, 2006 (55) ACC 750 (All).
123 Udaybhan Shuki v State of UP, 1999 Cr LJ 274 (279, 280) (All-DB).
124 Sher Bahadur Singh v State of UP, 1994 Cr LJ 720 (728) (All-DB).
125 Udaybhan Shuki v State of UP, 1999 Cr LJ 274 (282) (Del-DB).
126 Govind Prasad v WB, 1975 Cr LJ 1249 (Cal).
127 Ajit Kumar Sannah v Assam, 1976 Cr LJ 1303 (Gau); Mushtaq Ahmad v UP, 1984 Cr LJ NOC 37 (All); Vikram v State, 1996 Cr LJ
1536 (All-FB).
128 Vimal Kumar Sharma v State of UP, 1995 Cr LJ 2335 (2338) (All-DB); Rajendra Kumar v State of Rajasthan, (2003) 10 SCC 21 :
AIR 2003 SC 3196 : 2003 Cr LJ 4344 : 2003 (4) Crimes 134 (SC). (In view of the affidavits of the police officials, and the sole
affidavit of the arrestee, the provisions of section 50 CrPC were held complied with).
130 P Pushpavathy v Ministry of External Affairs, 2013 Cr LJ 4420 (Mad) (DB) : 2013 (4) CTC 401 .

End of Document

[s 50A] Obligation of person making arrest to inform about the arrest, etc., to a
nominated person.-
131
[s 50A] Obligation of person making arrest to inform about the arrest, etc., to a
nominated person.-
Every police officer or other person making any arrest under this Code shall forthwith give the
information regarding such arrest and place where the arrested person is being held to any of his
friends, relatives or such other persons as may be disclosed or nominated by the arrested person for the
purpose of giving such information.
(2) The police officer shall inform the arrested person of his rights under sub-section (1) as
soon as he is brought to the police station.
(3) An entry of the fact as to who has been informed of the arrest of such person shall be
made in a book to be kept in the police station in such form as may be prescribed in this
behalf by the State Government.
(4) It shall be the duty of the Magistrate before whom such arrested person is produced, to
satisfy himself that the requirements of sub-section (2) and sub-section (3) have been
complied with in respect of such arrested person.]
[s 50A.1] Legislative Changes in section 50A—CrPC (Amendment) Act, 2005 (25 of 2005).—
This section was inserted by the CrPC Amendment Act, 2005 (25 of 2005). Section 50A requires the
police to give information about the arrest of the person as well as the place where he is being held to
any one of his friends, relatives or such other persons who may be nominated by him for giving such
information.
This section has come into force w.e.f. 23 June 2006 vide Notification No. S.O. 923(E), dt. 21 June
2006.
[s 50A.2] Scope and application of section 50A.—
Section 50A requires the police to give information about the arrest of the person as well as the place
where he is being held to anyone who may be nominated by him for sending such information. It
Mmaneesh Bajpai
[s 50A] Obligation of person making arrest to inform about the arrest, etc., to a nominated person.-
further obliges the Magistrate concerned to satisfy himself about the fulfillment of the requirements of
the said provision when arrested person is produced before him in order to ensure compliance of the
said law. The provisions are mandatory and any violation, thereof, can be a ground available to an
apprehended person to question the correctness of the arrest by the aforesaid procedure. It is
imperative for the investigating agency not to apprehend a person and further for the Magistrate to
satisfy himself that the investigating agency had proceeded with in accordance with law, which would
ensure the safety and liberty of a person from being abused and from preventing any unwarranted
arrest.132
SO 923(E), dated 21 June 2006).
132 Ajeet Singh v State of UP, 2007 Cr LJ 170 (177) (FB) : 2006 (6) All LJ 110 (All).
End of Document

[s 51] Search of arrested person.-
(1) Whenever a person is arrested by a police officer under a warrant which does not
provide for the taking of bail, or under a warrant which provides for the taking of bail
but the person arrested cannot furnish bail, and
the officer making the arrest or, when the arrest is made by a private person, the
police officer to whom he makes over the person arrested, may search such person,
and place in safe custody all articles, other than necessary wearing-apparel, found
upon him and where any article is seized from the arrested person, a receipt showing
the articles taken in possession by the police officer shall be given to such person.
(2) Whenever it is necessary to cause a female to be searched, the search shall be made by
another female with strict regard to decency.
The words “and where any article is seized from the arrested person a receipt showing the articles
taken in possession by the police officer shall be given to such person” at the end of section 51 are
new, they did not appear in the corresponding section 51 of the Old Code, 1898. The object is to
ensure that the articles seized from an arrested person are properly accounted for.
The word “woman” occurring in the old section 52 has been substituted by the word “female” in the
present sub-section (2).
The only addition made in this Code, is the provision for passing a receipt in respect of the articles
seized from the arrested person as a precautionary measure for accounting for the articles. The other
provisions correspond to sections 51 and 52 of the old Code, 1898.
Mmaneesh Bajpai
If the police officer keeps in his custody the property seized under sections 51 and 102, and does not
report them to the Magistrate, section 457 is not attracted and the police officer will have an arbitrary
power of disposal of such properties.133
[s 51.3] Searching officer shall offer his personal search to the accused.—
An arrested person is entitled to search the officers who seek to search the accused. This procedure is
meant to avoid the possibility of explaining the object which was brought out by the search.134 Before
making a personal search of the accused, the searching officer and others assisting him should give
their personal search to the accused before searching the person of the accused. This rule is meant to
avoid the possibility of implanting an object to be shown in the search. The grounds of such arrest
must be given to the accused. Where no such grounds are given, the search becomes illegal.135 The
section does not require that when search of the arrested person is made, the signature of such person
shall be obtained; only a receipt showing the articles seized shall be given.136 It is the duty of the
officer making a search to obtain independent and respectable witnesses.137
[s 51.4] Search of woman (Sub-section (2)).—
No woman can be searched except by another woman and having regard to the emphasis on
decency.138 Search of a foreigner who is a young lady by a lady member of local panchayat and
placed in police lock up in the presence of a lady member, cannot be said to be improper merely
because there was no lady constable in the police station.139
In a case of search of a woman accused in connection with Narcotic Drugs and Psychotropic
Substances Act, 1985, where the search of the vanity bag of the lady accused by empowered officer
was conducted by getting of a woman police constable, it was held that the search was not illegal. It
was further held that the discretion exercised by the empowered officer in procuring the presence of
woman constable for the purpose of searching the vanity bag of accused would be fully justified in
view of sections 50(4) and 51 of the NDPS Act as well as sections 46 and 51(2) of the Code. Thus, the
search was not violative of the mandatory provisions of sections 42 and 43 of the Act.140
In a case under the NDPS Act, 1985, where brown sugar was recovered from a woman, the recovery of
polythene bag containing the contraband was made by a woman Head Constable kept under blouse by
the woman accused. It was held that the non-examination of the lady Head Constable and non-
production of the diary entry to show that police party was actually patrolling that area at the relevant
time throws doubt on the prosecution version. Hence, the accused was held entitled to acquittal.141
[s 51.5] Overriding effect of other laws.—
The procedure under chapter V of the Narcotic Drugs and Psychotropic Substances Act, 1985, as far
as possible, shall have precedence over sections 51, 70 and 43 of the Code.142

This section is inapplicable to the provisions of Narcotic Drugs and Psychotropic Substances Act,
1985.143
133 Suptdt of Customs & Central Excise, Nagercoil v R Sundar, 1993 Cr LJ 956 (960) (Mad) : 1992 (40) ECC 327.
134 Rabindranath Prusty v State of Orissa, 1984 Cr LJ 1392 (Ori).
135 Rabindranath Prusty v State of Orissa, 1984 Cr LJ 1392 (Ori).
136 Mahadeo v State, 1990 Cr LJ 858 (All).
137 Raghbir Singh v Punjab, AIR 1976 SC 91 : (1976) 1 SCC 145 : 1976 Cr LJ 172 .
138 Kamalabai Jethamal v State of Maharashtra, AIR 1962 SC 1189 : 1962 (2) Cr LJ 273 .
139 Nawal Thakur v State of HP, 1985 Cr LJ 1729 (HP-DB).
140 Lissy v State of Kerala, 2012 Cr LJ 3247 (Ker) : 2012 (2) KLJ 473 .
141 Satyabhama Kishan Kardak v State of Maharashtra, 2013 Cr LJ 2968 (Bom) : 2013 ALL MR (Cri) 2314.
142 State of HP v Sudarshan Kumar, 1989 Cr LJ 1412 (HP-DB).
143 Md Jainulabdin @ Nahamacha v State of Manipur, 1991 Cr LJ 696 , 704 (Gau-DB).
End of Document

[s 52] Power to seize offensive weapons.-
[s 52] Power to seize offensive weapons.-
The officer or other person making any arrest under this Code may take from the person
arrested any offensive weapons which he has about his person, and shall deliver all weapons so
taken to the Court or officer before which or whom the officer or person making the arrest is
required by this Code to produce the person arrested.
If the evidence of the investigating officer who recovered the material objects is convincing, the
evidence as to recovery need not be rejected on the ground that the seizure witnesses do not support
the prosecution version.144
The evidence of recovery would not be rejected merely because the panch witnesses have turned
hostile, the judicial pragmatism requires that the evidence of police officer with regard to recovery can
be relied upon if otherwise found trustworthy and reliable.145
144 Modan Singh v State of Rajasthan, AIR 1978 SC 1511 : (1978) 4 SCC 435 : 1978 Cr LJ 1531 (1533).
145 Vahaji Ravaji Thakore v State of Gujarat, 2004 Cr LJ 119 (132, 133) (Guj-DB) : (2004) 1 GLR 777 .
End of Document
Mmaneesh Bajpai
[s 53] Examination of accused by medical practitioner at the request of police officer.-
(1) When a person is arrested on a charge of commi-tting an offence of such a nature and
alleged to have been committed under such circumstances that there are reasonable
grounds for believing that an examination of his person will afford evidence as to the
commission of an offence, it shall be lawful for a registered medical practitioner, acting
at the request of a police officer not below the rank of sub-inspector, and for any person
acting in good faith in his aid and under his direction, to make such an examination of
the person arrested as is reasonably necessary in order to ascertain the facts which may
afford such evidence, and to use such force as is reasonably necessary for that purpose.
(2) Whenever the person of a female is to be examined under this section, the examination
shall be made only by, or under the supervision of, a female registered medical
practitioner.
146 [Explanation.—In this section and in sections 53-A and 54,—
(a) “examination” shall include the examination of blood, blood-stains, semen, swabs in
case of sexual offences, sputum and sweat, hair samples and finger nail clippings by
the use of modern and scientific techniques including DNA profiling and such other
tests which the registered medical practitioner thinks necessary in a particular case;
(b) “registered medical practitioner” means a medical practitioner who possess any
medical qualification as defined in clause (h) of section 2 of the Indian Medical
Council Act, 1956 (102 of 1956) and whose name has been entered in a State Medical
Register.]
This section is new in the present Code, did not appear in the Old Code, 1898. The Law Commission
in the 41st Report observed:147
Chapter V is divided into two parts, Pt A dealing with “arrest generally” and Pt B with “arrest without warrant”. In regard to Pt A
Mmaneesh Bajpai
consisting of sections 46 to 53, no amendments have been suggested in the previous report. But the commission considered,148 at
length, the question as to how far the physical examination of the arrested person is legally and constitutionally permissible and
what provision, if any, should be made in the Code for this purpose. It came to the conclusion that a provision on the subject was
needed and recommended a new section authorizing, in certain circumstances and subject to certain safeguards, the examination of
the person of the accused by a qualified medical practitioner. We agree that such a provision is necessary for an effective
investigation and it will not offend against Article 20(3) of the Constitution.
[s 53.2] CrPC (Amendment) Act, 2005 (25 of 2005).—
The present new explanation has been substituted for the old explanation appended to the Section, by
CrPC Amendment Act, 2005 (25 of 2005). Clause (1) is a new clause, it defines the word
“examination” for the purposes of this section and sections 53-A and 54.
Clause (b) of the explanation reproduces the old explanation” with verbal changes.
Notes on Clauses
This clause seeks to insert an Explanation to section 53 to explain the meaning of the expressions “examination” and “registered
medical practitioner” appearing in sections 53, 53-A and 54. (Notes on Clauses, clause 8).
923(E), dt. 21 June 2006.
The section comes into effect only when (1) a request is made by a police officer not below the rank of
sub-inspector, (2) upon reasonable grounds which such officer bona fide entertains, (3) that an
examination of the arrested person by a medical practitioner will afford evidence as to the commission
of the offence.
The Statement of Objects and Reasons of the Code states that this provision has been made to
facilitate effective investigation.149 Special protection is afforded to females under sub-section (2).
section 53 only lays down a condition that medical examination will have to be done at the instance of
a police officer not below the rank of sub-inspector. It does not debar other superior officers or the
court concerned from exercising the said power, if it is necessary for doing justice in a criminal

case.150
[s 53.4] Power of Court.—
It is open to the court which is seized of the matter to issue direction or to grant approval or
permission to the police for carrying out further investigation.151
[s 53.5] Power of superior officer/Court.—
Though this section lays down a condition that medical examination will have to be done at the
instance of a police officer not below the rank of sub-inspector, it did not debar other superior officers
or the court concerned from exercising the said power when it was necessary for doing justice in a
criminal case.152
[s 53.6] To be a witness.—
Regarding the person in custody giving his specimen handwriting or signature or impression of his
thumb, fingers, palm or foot, to the Investigating Officer under the order of Court for the purpose of
comparison, cannot be included in the expression “to be a witness”.153
A Magistrate has no authority under section 53 to pass an order allowing a medical practitioner to
extract blood of the accused. Investigation is a task of the police and such functions must be
performed by them alone.154 Examination of his person cannot be confined only to external
examination of the body of the person. Many a times, it may become necessary to make examination
of some organs inside the body, for the purpose of collecting evidence.155
[s 53.7] Direction for a blood-test.—
A Criminal Court can make a direction for blood-test to be taken by taking blood-sample of the
complainant, accused and of the child. In certain cases, where it is contrary to the interest of a minor,
the court may not make a blood-test direction. The Court cannot order an adult to submit to blood-test.
A blood-test which involves insertion of a needle in the veins of a person, is an assault, unless
consented to. It would need express statutory authority to require an adult to submit to it. This is based
on the fundamental principle that human body is inviolable and no one can prick it. Where a court
makes a direction for a blood-test, and the accused fails or refuses to comply with the blood-test
direction, the court can in the circumstances of the case, use the refusal or failure of the accused to
submit to blood-test as a corroborative evidence against him. If a party refuses to submit to blood-test,
the court may infer that some impediment existed which pointed out towards the implication of the
accused.156
Section 53 Code of Criminal Procedure, 1973 does not restrict any particular test to be done by the
medical practitioner, on the other hand all positive methods and tests are included within the ambit of
section 53.157 The new Explanation to section 53 inserted by the CrPC (Amendment Act, 2005 (25 of
2005) clarifies that “examination” in this section and sections 53A and 54 shall include the
examination of blood, blood stains, semen, swabs in the case of sexual offences, sputum and sweat,

hair samples and finger nail clippings by the use of modern and scientific techniques including DNA
profiling and such other tests which the registered medical practitioner thinks necessary in a particular
case.
The examination of the accused contemplated under section 53 includes the taking of blood from the
accused.158 Even an accused on bail falls within the ambit of section 53 Code of Criminal Procedure,
1973.159
[s 53.8] DNA Test.—
The DNA evidence is now a predominant forensic technique for identifying criminals when biological
tissues are left at scene of crime. DNA testing on samples such a saliva, skin, blood, hair or semen not
only helps to convict but also serves to exonerate. The sophisticated technology makes it possible to
obtain conclusive results in case in which the previous testing had been incon-clusive.160 DNA
sampling may also impinge on familial privacy where information obtained from one person’s sample
provides information regarding his or her relatives.161 Though section 53, Code of Criminal
Procedure, 1973 refers only to examination of the accused by medical practitioner at the request of a
police officer, but the court has wider power for the purpose of doing justice in criminal cases by
issuing a direction to the police officer to collect blood sample from the accused and conduct DNA
test for the purpose of further investigation under section 173(8) of the Code.162 Taking of the blood of
the accused for the purpose of DNA test will not amount to compelling an accused to become a
witness against himself violative of Article 20(3) of the Constitution.163 On refusal by the accused to
give his blood sample for conducting DNA test, Court would draw adverse inference against the
accused.164
See Explanation to section 53A added by the CrPC (Amendment Act) 2005 (25 of 2005), ante.
[s 53.9] Examination of accused.—
It cannot be said that merely because some pain is caused such a procedure of taking blood-sample
should not be permitted.165
[s 53.10] Taking of voice sample of accused-whether permissible.—
In a case, some accused persons were arrested on the allegation that they were duping people and
collecting money from them on the pretext of getting them recruited in the Police Department. For the
purpose of investigation the investigating Officer filed application before the CJM and CJM issued
summons to the appellant to appear before the IO and give voice-sample. The appellant moved the
Allahabad High Court for questioning the order of CJM but the application was rejected, and the
matter came up in appeal before the Supreme Court.
A Division Bench of the Supreme Court comprising Ranjana Prakash Desai J and Aftab Alam J
framed two questions for its determination. On the first question, the Division Bench was unanimous

and took the view that taking of voice sample of the accused does not offend Article 20(3) of the
Constitution, as voice sample by itself is innocuous and does not convey information within the
personal knowledge of the accused. However, on the second question there was difference of opinion.
In view of the divergence of opinion, the case was directed to be sent to the Chief Justice of India for
being listed before a three-judge Bench.166
Since the question involved in this appeal was of great legal importance, it will be pertinent to have a
look at the views expressed by two Hon’ble Judges.
Desai J observed as follow:
30. Thus, it is clear that voiceprint identification of voice involves measurement of frequency and intensity of sound waves. In my
opinion, therefore, measuring frequency or intensity of the speech sound waves falls within the ambit of inclusive definition of the
term “measurement” appearing in the Prisoners Act.
31. There is another angle of looking at the issue. Voice prints are like finger prints. Each person has a distinctive voice with
characteristic features. Voice print experts have to compare spectrographic prints to arrive at the identification.167
Aftab Alam, J., in his dissenting judgment, observed as follows:
67. In my opinion the Explanation in question deals with material and tangible things related to the human body and not to
something disembodied as voice.
68. Section 53 applies to a situation where the examination of the person of the accused is likely to provide evidence as to the
commission of an offence. Whether or not the examination of the person of the accused would afford evidence as to the
commission of the offence undoubtedly rests on the satisfaction of the police officers not below the rank of sub-inspector. But,
once police officer makes a request to the registered medical practitioner for the examination of the person of the accused, what
other test (apart from those expressly enumerated) might be necessary in a particular case can only be decided by the medical
practitioner and not the police officer referring the accused to him. In my view, therefore, Mr. Dave, learned counsel for the
appellant is right in his submission that any tests other than those expressly mentioned in the Explanation can only be those which
the registered medical practitioner would think necessary in a particular case. And further that in any event a registered medical
practitioner cannot take a voice sample.168

Medical examination must logically take in examination of blood, sputum, semen, urine, etc.169 The
obtaining of such evidence, it has been held, is not violative of Article 20(3) of the Constitution which
grants protection against self-incrimination.170
[s 53.11] Applies to person on bail.—
A person released on bail is still considered to be detained in the constructive custody of the court
through his surety. Therefore, to that extent, his liberty is subjected to restraint. He is notionally in the
custody of the court and hence continues to be a person arrested. Even in spite of the fact that the
accused had been released on bail, he continues to be a person arrested on a charge of commission of
an offence and, therefore, his medical examination can be carried out.171
[s 53.12] Accused on bail.—
Release of an arrested person on bail cannot take away the reality of the situation and the arrested
person does not cease to be an arrested person or an accused person for the purpose of sections 53 and
54, his medical examination can be ordered.172
Arrested person would include an accused who was released on bail.173
[s 53.13] Potency test.—
The examination of a person under this section would take in its fold the potency test as well.174
[s 53.14] Taking of sample hairs of accused.—
An accused has a right to give or not to give sample of his hair for comparison/identification. He
cannot be made a witness against himself against his will as envisaged in Article 20(3) of the
Constitution of India.175 Taking of sample of hair of accused for comparison is permissible under
section 53, Code of Criminal Procedure, 1973, thereby, the accused does not become witness within
the meaning of Article 20(3) of the Constitution.176
Explanation (a) to section 53 gives an inclusive definition of the word “examination”. The tests
mentioned in Explanation (a) are of bodily substances, which are example of physical evidence of
non-testimonial character. By the aid of principle of ejusdem generis, tests which are testimonial in
character cannot be read in the words “and such other tests” in Explanation to section 53. Thus,
Magistrate can issue direction to the investigating agency to take voice sample of the accused. By
giving voice sample the accused does not convey any information within his personal knowledge and
hence it does not offend Article 20(3) of the Constitution of India.177

In a murder case, some human hair was recovered from the palm of the deceased, it was held that it is
reasonable to direct the accused to give sample of his hair for comparison. The failure of the
Investigating Officer to take sample in time would not affect the case. Even if the accused was
released on bail, he would be considered to be in custody for the purpose of section 53 for taking
sample of hair.178
146 Subs. by the Code of Criminal Procedure (Amendment) Act, 2005 (25 of 2005), section 8 (w.e.f. 23 June 2006 vide Notification
No. SO 923(E), dated 21 June 2006). Prior to its substitution, the Explanation read as under: “Explanation.—In this section and in
section 54, “registered medical practitioner” means a medical practitioner who possesses any recognized medical qualification as
defined in clause (h) of section 2 of the Indian Medical Council Act, 1956 (102 of 1956), and whose name has been entered in a
State Medical Register.”
148 37th Report, para 183 and Appendix 6.

149 See Gazette of India Extraordinary Pt II, section 2, dated 10 December 1970, p 1315.
150 Anil A Lokhande v Maharashtra, 1981 Cr LJ 125 (SC).
151 Thaniel Victor v State, 1991 (1) Crimes 354 , 362 : 1991 Cr LJ 2416 (Mad).
154 Maharashtra v Dyanoba Bhikoba Dagade, 1979 Cr LJ 277 (Bom).
155 Anil Lokhande, supra.
156 Swati Lodha v State of Rajasthan, 1991 Cr LJ 939 , 949 (Raj); Solaimuthu v State, 2005 Cr LJ 31 (33) (Mad).
157 Solaimuthu v State, 2005 Cr LJ 31 (33) (Mad) : 2004 (1) CTC 758 . Dispute about paternity of child, direction given to the accused
for giving blood test upheld.
158 Jamshed v State of UP, 1976 Cr LJ 1680 (All-DB); Solaimuthu v State, 2005 Cr LJ 31 (33) (Mad); Sanjeev Nanda v State of NCT of
Delhi, 2007 Cr LJ 3786 (3793); 2008 (1) Crimes 481 (Del); Swati Lodha v State of Rajasthan, 1991 Cr LJ 939 (Raj).
159 Sanjeev Nanda v State of NCT of Delhi, 2007 Cr LJ 3786 (3793) (Del).

160 Thogorani v State of Orissa, 2004 Cr LJ 4003 (4005) (Ori-DB); Sanjeev Nanda v State of NCT of Delhi, 2007 Cr LJ 3786 (3793)
(Delhi); Swati Lodha v State of Rajasthan, 1991 Cr LJ 939 (Raj).
161 Thogorani v State of Orissa, 2004 Cr LJ 4003 (4005) (Ori-DB).
162 Thogorani v State of Orissa, 2004 Cr LJ 4003 (4005) (Ori-DB); Ravichandran v Sub-Inspector of Police, 2006 (3) Crimes 404
(Mad) (Case under section 417 Indian Penal Code, 1860 DNA test of accused ordered).
165 Jamshed v State of UP, 1976 Cr LJ 1680 (All-DB).
166 Ritesh Sinha v State of UP, (2013) 2 SCC 357 : 2013 Cr LJ 1301 (SC).
167 Ritesh Sinha v State of UP, (2013) 2 SCC 357 : 2013 Cr LJ 1301 (SC), para 30, 31 at p 1314 (of Cr LJ).
168 Ritesh Sinha v State of UP, (2013) 2 SCC 357 : 2013 Cr LJ 1301 (SC), para 67, 68 at p 1324 (of Cr LJ).
169 Ananth Kumar v AP, 1977 Cr LJ 1797 (AP).
170 Bombay v Kathi Kalu, AIR 1961 SC 1808 : (1961) 2 Cr LJ 856 ; Solaimuthu v State, 2005 Cr LJ 31 (33) (Mad).
171 Thaniel Victor v State, 1991 Cr LJ 2416 , 2424 (Mad) : (1991) 1 Crimes 354 .
172 Thaniel Victor v State, 1991 Cr LJ 2416 : 1991 (1) Crimes 354 , 361 (Mad).
173 Anil Anantrao Lokhande v State of Maharashtra, 1981 Cr LJ 125 , 136 (Bom-DB).
174 Thaniel Victor v State, 1991 Cr LJ 2416 , 2424 (Mad).
175 Amrit Singh v State of Punjab, 2007 Cr LJ 298 (302) : AIR 2007 SC 132 : 2007 AIR SCW 5712 : 2007 (4) Crimes 380 .
176 Neeraj Sharma v State of UP, 1993 Cr LJ 2266 (2268, 2269) (All).
177 Ritesh Sinha v State of UP, AIR 2013 SC 1132 : (2013) 2 SCC 357 .
178 Dilshad v State of Uttarakhand, 2013 Cr LJ 3737 (Utr) : 2014 (3) Crimes 332 (Uttar) [Selvi v State of Karnataka, AIR 2010 SC
1974 : (2010) 7 SCC 263 —Rel. on].

End of Document

[s 53A] Examination of person accused of rape by medical practitioner.-
179 [s 53A] Examination of person accused of rape by medical practitioner.-
(1) When a person is arrested on a charge of committing an offence of rape or an attempt to

commit rape and there are reasonable grounds for believing that an examination of his
person will afford evidence as to the commission of such offence, it shall be lawful for a
registered medical practitioner employed in a hospital run by the Government or by a
local authority and in the absence of such a practitioner within the radius of sixteen
kilometers from the place where the offence has been committed by any other registered
medical practitioner, acting at the request of a police officer not below the rank of a sub-
inspector, and for any person acting in good faith in his aid and under his direction, to
make such an examination of the arrested person and to use such force as is reasonably
necessary for that purpose.
(2) The registered medical practitioner conducting such examination shall, without delay,
examine such person and prepare a report of his examination giving the following
particulars, namely:—
(i) the name and address of the accused and of the person by whom he was brought;
(ii) the age of the accused;
(iii) marks of injury, if any, on the person of the accused;
(iv) the description of material taken from the person of the accused for DNA profiling;
and
(v) other material particulars in reasonable detail.
(3) The report shall state precisely the reasons for each conclusion arrived at.
(4) The exact time of commencement and completion of the examination shall also be noted
in the report.
(5) The registered medical practitioner shall, without delay, forward the report of the
investigating officer, who shall forward it to the Magistrate referred to in section 173 as
part of the documents referred to in clause (a) of sub-section (5) of that section.]
[s 53A.1] Legislative Changes in section 53A— CrPC (Amendment) Act, 2005 (25 of 2005).—
Section 53-A was added by the CrPC (Amendment Act), 2005 (25 of 2005). It provides for a detailed
medical examination of a person accused of an offence of rape or an attempt to commit rape by the
Mmaneesh Bajpai
[s 53A] Examination of person accused of rape by medical practitioner.-
registered medical practitioner employed in a hospital run by the Government or by a local authority
and in the absence of such a practitioner within the radius of sixteen kilometers from the place where
the offence has been committed by any other registered medical practitioner. (Notes on Clauses,
clause 9).
This section came into force w.e.f. 23 June 2006 vide Notification No. S.O. 923(E), dt. 21 June 2006.
In a case where the prosecution failed to follow the mandatory requirement of conducting the
necessary DNA test, it was held by Supreme Court180 that the conviction of the accused was liable to
be set aside.
The Supreme Court has held that failure to conduct the DNA Test of the samples taken from the
accused or to prove the report of DNA profiling would not necessarily result in the failure of the
prosecution case. A positive result of the DNA Test would constitute clinching evidence against the
accused, however if the result is negative, the weight of other materials and evidence on record will
still have to be considered.181
SO 923(E), dated 21 June 2006).
180 Kishan Kumar Malik v State of Haryana, AIR 2011 SC 2877 , (2011) 7 SCC 130 , (2011) 3 SCC (Cri) 61 .
181 Sunil v State of MP, (2017) 4 SCC 393 .
End of Document

[s 54] Examination of arrested person by medical officer.-
182[s 54] Examination of arrested person by medical officer.-
(1) When any person is arrested, he shall be exa-by mined by a medical officer in the service
of Central or State Government, and in case the medical officer is not available, by a
registered medical practitioner soon after the arrest is made:
Provided that where the arrested person is a female, the examination of the body shall
be made only by or under the supervision of a female medical officer, and in case the
female medical officer is not available, by a female registered medical practitioner.
(2) The medical officer or a registered medical practitioner so examining the arrested
person shall prepare the record of such examination, mentioning therein any injuries or
marks of violence upon the person arrested, and the approximate time when such
injuries or marks may have been inflicted.
(3) Where an examination is made under sub-section (1), a copy of the report of such
examination shall be furnished by the medical officer or registered medical practitioner,
as the case may be, to the arrested person or the person nominated by such arrested
person.]
Uttar Pradesh.—The following amendments were made by U.P. Act 1 of 1984, section 7
(w.e.f. 1 May 1984).
(1) Section 54.—In section 54 the following sentence inserted at end namely—
The registered medical practitioner shall forthwith furnish to the arrested person a copy of
the report of such examination free of cost.
Uttar Pradesh.—The following amendments were made by U.P. Act 1 of 1984, section 8
(w.e.f. 1 May 1984).
(2) Section 54-A.—After section 54 insert the following section:—
Mmaneesh Bajpai
54-A. Test identification of the accused.—When a person is arrested on a charge of

committing an offence and his test identification by any witness is considered necessary by
any Court having jurisdiction, it shall be lawful for an Executive Magistrate acting at the
instance of such Court, to hold test identification of the person arrested.
This section was new in the present Code. The Joint Committee of the Parliament observed:183
The committee considers that a person who is arrested should be given the right to have his body examined by a medical officer
when he is produced before a Magistrate or at any time when he is under custody, with a view to enabling him to establish that the
offence with which he is charged was not committed by him or that he was subjected to physical injury. In the view of the Joint
Committee a person in custody is in need of this protection. A new clause has, therefore, been inserted by the Committee.
CrPC (Amendment) Act, 2005 (25 of 2005).— Section 54 of the principal Act was renumbered as
sub-section (1) thereof, and after sub-section (1) as so renumbered, the following sub-section was
inserted, namely:
(2) Where an examination is made under sub-section (1), a copy of the report of such examination shall be furnished by the
registered medical practitioner to the arrested person or the person nominated by such arrested person.
Notes on Clauses
The amendment to section 54 is intended to provide that a copy of the report of the medical
examination of the arrested person should be furnished by the registered medical practitioner to the
arrested person or the person nominated by such arrested person. (Notes on Clauses, Clause 10).
This amendment in the section came into force w.e.f. 23 June 2006 vide Notification No. S.O. 923(E),
dt. 21 June 2006.
CrPC Amendment Act, 2008 (5 of 2009).— For section 54 new section 54 has been substituted, by
section 8 of the CrPC (Amendment) Act, 2008 (5 of 2009). Section 54 provides for examination of the
arrested person by medical practitioner. Under the amended section it has been made obligatory on the
part of the State to have the arrested person examined by a registered medical practitioner soon after
the arrest is made. It also provides that where the arrested person is a female, the examination of the
body shall be made only by or under the supervision of a female registered medical practitioner. (Vide

Notes on Clauses.)
Prior to this amendment, the medical examination of the arrested person was made subject to certain
conditions specified in the previous provision. However, the amended provision imposes a positive
duty upon the State to ensure that every person who is arrested must be subjected to a medical
examination soon after his arrest.
Section 54 confers an important right on an arrested person. It is the right of an arrested person to have
his medical examination done.
Section 54, undoubtedly, provides for the examination of an arrested person by a medical practitioner,
at the request of the arrested person and it is a right conferred on the arrested person. But very often,
the arrested person is not aware of this right and, on account of his ignorance, he is unable to exercise
this right, even though he may have been tortured or maltreated by the police in police lock-up. It is,
therefore, the duty of the Magistrate to inform the arrested person about this right of medical
examination, in case he has any complaint of torture or maltreatment in police custody.184
Section 54 is not applicable to trial of summary court martial under the Army Act.185
[s 54.4] Accused on bail.—
Release of an arrested person on bail, cannot take away the reality of the situation and the arrested
person does not cease to be an arrested person or an accused person for the purpose of sections 53 and
54.186
[s 54.5] Duty of Magistrate.—
It is the duty of the Magistrate to inform the arrested person about his right to get himself medically
examined, in case he has complaints of physical torture or maltreatment in police custody.187 The
lower Courts should not adopt casual approach to custodial torture.188 However, if the Magistrate
considers the request to be vexatious or for defeating the ends of justice, he may refuse it.
[s 54.6] Use of reasonable force or infliction of pain.—
Pain or torture for the purpose of examination is allowed by law. Even reasonable force can be used
though it may discomfort him.189 In a complaint of custodial torture, the court should not adopt a
casual approach to it on the ground that complaints as to such torture are made by habitual
offenders.190 Where accused alleges custodial violence and is produced before the Magistrate, the
Magistrate should refer the complainant for medical examination under section 54 Code of Criminal
Procedure, 1973 and, therefore, send the record to the Magistrate having jurisdiction, he should not
immediately proceed to take cognizance himself.191 Where in case of mass rape, vaginal smear was
taken two days after the occurrence, as the DNA test was not useful, the rejection of the application of
the accused persons seeking their DNA test for comparison of vaginal smear with semen of any of the
accused, was held proper.192 Where complaint was lodged after a year of the custodial death, though
beating and torture in police custody were not proved, Supreme Court directed the State Government

to pay Rs 1,00,000/- as compensation to the mother and children of the deceased.193
[s 54.7] Denial of Medical examination.—
Where an accused sought his medical examination, in case of torture, the procedure adopted by the
Magistrate in examining the body of the accused person himself, and then dismissing the application
for medical examination holding that on his observation that they were not seen in normal postures,
was wholly unwarranted and atrocious. He did not spell out as to how medical examination would
have defeated the ends of justice. Such procedure which is violative of the section calls for
interference by High Court under section 482.194
182 Subs. by the Code of Criminal Procedure (Amendment) Act, 2008 (5 of 2009), section 8 (w.e.f. 31 December 2009). Prior to
substitution, section 54 stood as under:—
“Section 54. Examination of arrested person by medical practitioner at the request of the arrested person.—†[(1)] When a
person who is arrested, whether on a charge or otherwise, alleges, at the time when he is produced before a Magistrate or at
any time during the period of his detention in custody that the examination of his body will afford evidence which will
disprove the commission by him of any offence or which will establish the commission by any other person of any offence
against his body, the Magistrate shall, if requested by the arrested person so to do direct the examination of the body of such
person by a registered medical practitioner unless the Magistrate considers that the request is made for the purpose of vexation
or delay or for defeating the ends of justice.
‡[(2) Where an examination is made under sub-section (1), a copy of the report of such examination shall be furnished by the
registered medical practitioner to the arrested person or the person nominated by such arrested person.]”
† Section 54 re-numbered as sub-section (1) of that section by the Code of Criminal Procedure (Amendment) Act, 2005
(25 of 2005), section 10 (w.e.f. 23 June 2006 vide Notification No. SO 923(E), dated 21 June 2006).
• ‡ Sub-section (2) Ins. by the Code of Criminal Procedure (Amendment) Act, 2005 (25 of 2005), section 10 (w.e.f. 23
June 2006 vide Notification No. SO 923(E), dated 21 June 2006).
183 See Report of the Joint Committee, dated 4 December 1972, p 9.
184 Sheela Barse v State of Maharashtra, AIR 1983 SC 378 : (1983) 2 SCC 96 : 1983 Cr LJ 642 (647).
185 Mannu Giri v General/Chief of Army Staff, 2003(1) Crimes 72 (75) (All-DB).
186 Thaniel Victor v State, 1991 Cr LJ 2416 : 1991 (1) Crimes 354 , 361 (Mad); Sheela Barse v State of Maharashtra, AIR 1983 SC
378 : (1983) 2 SCC 96 : 1978 Cr LJ 642 .

187 DJ Vaghela v Kantibhai Jethabhai, 1985 Cr LJ 974 (Guj).
188 Sheela Barse v Maharashtra, 1983 Cr LJ 642 : AIR 1983 SC 378 : (1983) 3 SCC 96 .
189 Ananth Kumar v State of AP, 1977 Cr LJ 1797 (AP).
190 DJ Vaghela v Kantibhai, 1985 Cr LJ 974 (Guj).
191 AK Sahdev v Ramesh Nanji Shah, 1998 Cr LJ 2645 (2650, 2651) (Bom) : 1998 (5) Bom CR 738 .
192 Ramchandran v Station House Officer, Annamal Nayar, PS, 1999 Cr LJ 1180 (1181) (Mad) : 1998 (2) All LT (Cri) 574.
193 Shakila Abdul Gafar Khan v Vasant Raghunath Dhoble, 2003 Cr LJ 4548 (4559) : AIR 2003 SC 4567 : (2003) 4 Crimes 106 :
(2003) 7 SCC 749 (SC).
194 Mukesh Kumar v State, 1990 Cr LJ 1923 , 1925 (Del); Sheela Barse v State of Maharashtra, AIR 1983 SC 378 : (1983) 2 SCC 96 :
1983 Cr LJ 642 : (1983) 1 Crimes 302 .
End of Document

[s 54-A] Identification of person arrested. –
195 [s 54-A] Identification of person arrested. –
Where a person is arrested on a charge of committing an offence and his identification by any
other person or persons is considered necessary for the purpose of investigation of such person
or persons is considered necessary for the purpose of investigation of such offence, the Court,
having jurisdiction, may on the request of the officer in charge of a police station, direct the
person so arrested to subject himself to identification by any person or persons in such manner
as the Court may deem fit:]
196 [ Provided that, if the person identifying the person arrested is mentally or physically
disabled, such process of identification shall take place under the supervision of a Judicial
Magistrate who shall take appropriate steps to ensure that such person identifies the person
arrested using methods that person is comfortable with:
Provided further that if the person identifying the person arrested is mentally or physically
disabled, the identification process shall be videographed].
[s 54A.1] Legislative Changes—
CrPC (Amendment) Act, 2005 (25 of 2005).— This is a new section inserted by the CrPC
Amendment Act, 2005 (25 of 2005). It empowers the court to direct specifically the holding of the
identification of the arrested person at the request of the prosecution. (Notes on Clauses, Clause 11).
This new section has come into force w.e.f. 23 June 2006 vide Notification No. S.O. 923(E), dt. 21
June 2006.
Provided that, if the person identifying the person arrested is mentally or physically disabled, such
process of identification shall take place under the supervision of a Judicial Magistrate who shall take
appropriate steps to ensure that such person identifies the person arrested using methods that the
person is comfortable with:
Mmaneesh Bajpai
[s 54-A] Identification of person arrested. –
Provided further, that if the person identifying the person arrested is mentally or physically disabled,
the identification process shall be videographed.
[s 54A.2] Criminal Law (Amendment) Act, 2013 (13 of 2013).—
Vide this amendment, two provisos have been inserted to deal with the identification of an arrested
person, in a situation wherein the person who is identifying the arrested person happens to be mentally
or physically disabled. In such cases, it has been made mandatory that:
(i) the process of identification shall take place under the supervision of a Judicial Magistrate
who has been obligated to take appropriate steps to ensure that such a mentally or physically
disabled person identifies the person arrested using methods that the mentally or physically
disabled person is comfortable with;
(ii) the process of identification shall be videographed.
195 Ins. by the Code of Criminal Procedure (Amendment) Act, 2005 (25 of 2005), section 11 (w.e.f. 23 June 2006 vide Notification
No. SO 923(E), dated 21 June 2006).
196 Ins. by the Criminal Law (Amendment) Act, 2013 (13 of 2013), section 12 (w.e.f. 3 February 2013).
End of Document

[s 55] Procedure when police officer deputes subordinates to arrest without warrant. –
[s 55] Procedure when police officer deputes subordinates to arrest without warrant.
–
(1) When any officer in charge of a police station or any police officer making an
investigation under chapter XII requires any officer subordinate to him to arrest without
a warrant (otherwise than in his presence) any person who may lawfully be arrested
without a warrant, he shall deliver to the officer required to make the arrest an order in
writing, specifying the person to be arrested and the offence or other cause for which the
arrest is to be made and the officer so required shall, before making the arrest, notify to
the person to be arrested the substance of the order and, if so required by such person,
shall show him the order.
(2) Nothing in sub-section (1) shall affect the power of a police officer to arrest a person
under section 41.
Sub-section (2) which did not appear in the Old Code, 1898, is a new provision in the present Code.
Whether section 41 is controlled by section 55, there was controversy under the Old Code, 1898. The
Law Commissioners in its 41st Report observed:197
5.4. For the avoidance of any controversy, it is proposed to insert a sub-section (1-A) in section 56 reading:—
(1-A) Nothing in sub-section (1) shall affect the power of a police officer to arrest a person under section 54.
This section points out that where any officer-in-charge of a police station, requires an officer
subordinate to him, to arrest without a warrant any person, he may deliver to the officer required to
Mmaneesh Bajpai
[s 55] Procedure when police officer deputes subordinates to arrest without warrant. –
make the arrest, an order in writing.198 It may be compared with section 75, on the one hand and
section 41 on the other. The power which a police officer has under section 41, to act on his own
initiative and arrest without a warrant, a person concerned in a cognizable offence, is quite unaffected
by this section.199
Section 41 is not controlled by section 55.200 Section 55 does control or restrict the powers of the
police officer given to him under section 41, which is a general provision.201
198 Emperor v Nepal, (1913) 35 All 407 , 408.
199 Kishun Mandar v King Emperor, AIR 1926 Pat 424 : (1926) 5 Pat 533; Gandhari Rai v Aparti Samal, AIR 1960 Ori 33 ; Sulaiman,
AIR 1964 Ker 185 .
200 Umed Singh v State of Rajasthan, 2003 Cr LJ 3632 (3636) : (2003) 3 Raj LR 162 : (2003) 4 Raj LW (Raj).
201 Umed Singh v State of Rajasthan, 2003 Cr LJ 3632 (3636) : (2003) 3 Raj LR 162 : (2003) 4 Raj LW (Raj).
End of Document

[s 55A]
202 [s 55A]
Health and safety of arrested person. –
It shall be the duty of the person having the custody of an accused to take reasonable care of the
health and safety of the accused.]
CrPC Amendment Act, 2008 (5 of 2009).—A new section 55A has been inserted, by section 9 of the
CrPC (Amendment) Act, 2008 (5 of 2009). Under the new section 55A it has been made obligatory
for the person having the custody of the accused to take reasonable care of the health and safety of the
accused.203
203 Vide Notes on Clauses.
End of Document
Mmaneesh Bajpai
[s 56] Person arrested to be taken before Magistrate or officer in charge of police
station. –
[s 56] Person arrested to be taken before Magistrate or officer in charge of police

station. –
A police officer making an arrest without warrant shall, without unnecessary delay and subject
to the provisions herein contained as to bail, take or send the person arrested before a
Magistrate having jurisdiction in the case, or before the officer in charge of a police station.
[s 56.1] Scope.—
The Constitution of India in Article 22(2), also provides for producing the arrested person before
Magistrate, within 24 hours. Where a police officer arrests a person outside the State, he must produce
the person arrested before the Magistrate having jurisdiction with reference to the place where the
offence took place.204 Where a police party constituted in State of Andhra Pradesh arrested persons at
place B in State of UP, but did not produce the arrested persons before the Magistrate at place B,
brought the arrested persons to the State of Andhra Pradesh and produced them before the Magistrate
there, held there was clear violation of the provisions of section 56 Code of Criminal Procedure, 1973
and Articles 21 and 22 of the Constitution of India.205
When an accused surrenders in court and makes an application stating that he is wanted in the crime,
his prayer should be accepted.206
A Police Officer, on whose information crime is registered, is not de facto complainant; he is not
debarred from carrying out investigation of the case.207
[s 56.2] Least possible delay.—
The power of the army authority given by section 4 of the Armed Force (Special Powers) Act, 1952,
to arrest a person, implies the authority to detain, but the army authority shall make over the arrested
person to the officer-in-charge, of the nearest police station with least possible delay. The words “least
possible delay” in section 5 of the Armed Force (Special Powers) Act, 1952, may be said to do the
Mmaneesh Bajpai
[s 56] Person arrested to be taken before Magistrate or officer in charge of police station. –
thing within the shortest possible time. Whenever the question of “least possible delay” arises for
decision in computing the period of time, the court has to have regard to the particular circumstances
of the case—physical impossibility or otherwise, to make over the arrested person to the nearest police
station and how, where and in what circumstances, the arrest was effected.208
[s 56.3] Duty of Court.—
After a person is so arrested under this section, he has a privilege of taking recourse to the provisions
contained in the Code as to bail, and the Magistrate also has to consider whether custody with the
police of the said person should be continued or he should be sent to judicial custody or released on
bail.209
The duty imposed on the Customs Officer under section 104(2) of the Customs Act to produce the
arrested person before the Magistrate is similar to the duty cast on the police officer under this section
and section 57. While producing the accused as per the mandate of the Code, the officer-in-charge of
the police station, however, is authorised to make use of it as a step in aid of investigation, namely to
obtain a special order for keeping the accused in police custody.210
204 Kura Rajaiah alias K. Rajanna v Government of Andhra Pradesh, 2007 Cr LJ 2031 (2041, 2042) (DB) : 2007 (1) Andh LD (Crl)
845 (AP).
205 Kura Rajaiah alias K Rajanna v Government of Andhra Pradesh, 2007 Cr LJ 2031 (2041, 2042) (DB) : 2007 (1) Andh LD (Crl)
845 (AP).
206 Devendra Singh Negi v State of UP, 1994 Cr LJ 1783 : 1993 (2) Crimes 728 (731) (All).
207 Public Prosecutor, AP High Court v Mohd. Mansoor, 2001 Cr LJ 3169 (3174) (AP) : 2001 (1) All LT (Cri) 275.
208 Purnima Barua v UOI, 1991 Cr LJ 2675 , 2677 (Gau-DB).
209 Anop Kunver Kantha Kunver v State, 1984 (1) Crimes 44 , 48 (Guj).
210 Deepak Mahajan v Director of Enforcement, 1991 Cr LJ 1124 , 1141 (Del-FB).
End of Document

[s 57] Person arrested not to be detained more than twenty-four hours. –
No police officer shall detain in custody a person arrested without warrant for a longer period
than under all the circumstances of the case is reasonable, and such period shall not, in the
absence of a special order of a Magistrate under section 167, exceed twenty -four hours exclusive
of the time necessary for the journey from the place of arrest to the Magistrate’s Court.
When a person is arrested under a warrant, section 76 becomes applicable. When he is arrested
without a warrant, the police officer can keep him in custody for a period not exceeding twenty-four
hours. Before the expiration of such a period, the arrested person has to be produced before the nearest
Magistrate, who can, under section 167, order his detention for a term not exceeding fifteen days on
the whole,211 or he can be taken to a Magistrate who has jurisdiction to try the case, and such
Magistrate can remand the person into custody for a term which may exceed fifteen days but not more
than sixty days. The intention of the Legislature is that an accused person should be brought before a
Magistrate competent to try or commit with, as little delay as possible. Section 57 is a pointer to the
intendment to uphold liberty and to restrict to the minimum the curtailment of liberty.212
Article 22 of the Indian Constitution, inter alia, provides:
(b) No person who is arrested shall be detained in custody without being informed, as soon as
may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be
defended by, a legal practitioner of his choice.
(c) Every person who is arrested and detained in custody, shall be produced before the nearest
Magistrate within a period of twenty-four hours of such arrest excluding the time necessary for
the journey, from the place of arrest to the court of the Magistrate, and no such person shall be
detained in custody, beyond the said period, without the authority of a Magistrate.
Mmaneesh Bajpai
(d) Nothing in Clauses (1) and (2) shall apply—
(i) to any person who for the time being is an enemy alien; or
(ii) to any person who is arrested or detained under any law providing for preventive
detention…
This section is mandatory.213
Where an arrestee is detained in police lock ups beyond 24 hours, the detention clearly violates the
mandatory provisions of section 57 Code of Criminal Procedure, 1973 and Article 22 of the
Constitution of India and is illegal.214 Where accused was detained for 3 days without remand order,
the detention was held illegal, in view of provisions of section 57 and Articles 21 and 22 of the
Constitution and Rs 10,000/- was awarded as compensation to the victim.215
Where the victim after arrest was brought to outpost at 9 a.m. and was sent out there from for medical
examination on the next day at 8.30 a.m., as by that time 24 hours had elapsed, section 57 was held
not violated.216
Police custody of an arrestee after expiry of initial period of 15 days of judicial remand is illegal.217
An application was filed for detention of an accused in police custody which was refused by the
Magistrate. The accused was already in judicial custody and his formal arrest was effected in prison. It
was held that no explanation was furnished by police as to why he was not interrogated at the time
when formal arrest was affected. Thus, the refusal to authorise detention of the accused in police
custody was held to be proper.218
[s 57.2] Commencement and completion of arrest.—
The word “arrest” is a term of Article. It starts with an arrester taking a person into his custody by
action or words, restraining him from moving anywhere beyond the arrester”s control, and it continues
until the person so restrained is either released from custody or, having been brought before a
Magistrate, is remanded to custody by the Magistrate.219
[s 57.3] Meaning of arrest.—

Arrest is the restraint on a man’s personal liberty by the power or colour of lawful authority. In its
natural sense arrest also means the restraint on or deprivation of one’s personal liberty.220
[s 57.4] 24 hours’ custody.—
Twenty-four hours time prescribed under this section is the outer most limit beyond which the arrested
person cannot be detained in police custody. It is certainly not an authorisation for the police to detain
him for 24 hours in their custody.221
[s 57.5] Calculation of period of custody.—
Detention in police custody under section 167(2) for 15 days, cannot include prior custody under this
provision.222 The detention can be authorised by the Magistrate only from the time the order of
remand is passed. The earlier period, when the accused is in the custody of a public officer in exercise
of his powers under section 57, cannot constitute detention pursuant to an authorisation issued by the
Magistrate. The period of 90 days/60 days begins to run only from the date of order of remand.223
A detenue, who was named in the FIR in an offence of murder, was aware that he was wanted in a
criminal case lodged against him and yet he absconded. When he was arrested after conducting raid,
information was given to his son about the arrest in terms of section 50 of the Code. There was no
delay is producing him before Magistrate. The custody warrant was issued and signed by the CJM and
subsequent date of appearance was also mentioned therein. It was held that the custody was legal and
valid and as such habeas corpus petition was not maintainable.224
Where a detenue was taken from one hospital to another for treatment and this fact was intimated to
the Magistrate and finally after getting Fitness Certificate from hospital, the detenue was produced
before the Chief Metropolitan Magistrate which was beyond 24 hours, it was held that there was
violation of either Article 22(2) of the Constitution or section 57 of the Code. Time taken in producing
the detenue in one hospital after the other for his reasonable treatment has to be excluded apart from
the journey times from the place of arrest to the Magistrate’s Court.225
[s 57.6] Production of accused after 24 hours.—
The production of the accused before the Magistrate after more than 24 hours does not render the
custody illegal.226 Remand order stands vitiated and the accused shall be set at liberty forthwith.227
[s 57.7] Legal Aid.]—
The obligation to provide legal aid to the indigent accused does not arise only when the trial
commences but arises right since the accused is produced before the nearest Magistrate as required by
section 57 of the Code and Article 22(1) of the Constitution.228

211 Queen-Empress v Engadu, (1887) 11 Mad 98; G.K. Moopnar v State, 1990 Mad LW (Crl) 113 (DB).
212 Mohd. Ahmed Yasin Mansuri v State of Maharashtra, 1994 Cr LJ 1854 (1859) (Bom-DB).
213 PC Kakar v Director General of Police, 1986 (1) Crimes 620 , 626 (AP); Jayendragiri v Narcotics Control Bureau, 2005 Cr LJ
3190 (Bom).
214 Amrik Singh v State of Punjab, 2000 Cr LJ 4305 (P&H); Birendra Sahani v State of Bihar, 2006 (2) Pat LJR 256 (Pat); Mahesh
Kumar v State of Bihar, 2008 (3) Pat LJR 147 (Pat-DB) (Remand order stood vitiated).
215 Iqbal Kaur Kwatra v Director General of Police, Jaipur, 1996 Cr LJ 2600 (AP-DB) : 1996 (2) Andh LD 390; see also Gurban Ali v
Intelligence Officer, Air Intelligence Unit, NIPT, Sahor, 1996 Cr LJ 2420 (Bom).
216 Alok Deb Roy v State of Assam, 2004 Cr LJ 3048 (3071) (Gauh-DB).
217 Public Prosecutor, High Court of AP, Hyderabad v Tatikayala Veeranna, 2003 Cr LJ NOC 165 : (2003) 1 Andh LT (Cri) 337
(AP); Birendra Sahani v State of Bihar, 2006 (2) Pat LJR 256 (Pat).
218 Inspector of police v KC Palanisamy, 2012 Cr LJ 1506 (Mad) [State of Bombay v Kathi Kala Oghad, AIR 1961 SC 1808 : 1961 (2)
Cr LJ 856 (SC); Jeyandra Saraswathi Swamigal v State of TN, 2005 Mad LJ (Cri) 110; Assistant Director, Directorate of
Enforcement v Hassan Ali Khan, 2011 (4) Scale 53 —Foll.].
219 Ashak Hussain Allah Detha v Asst Collector of Customs Pvt Bombay, 1990 Cr LJ 2201 , 2204 (Bom) : 1990 (1) Bom CR 451 .
220 Ashak Hussain Allah Detha v Asst Collector of Customs Pvt Bombay, 1990 Cr LJ 2201 , 2204 (Bom) : 1990 (1) Bom CR 451 .
221 Rajani Kanta Meheta v State of Orissa, 1975 Cr LJ 83 (Ori) : 40 (1974) CLT 922 .
222 Batna Ram v State of HP, 1980 Cr LJ 748 (HP-DB).
223 C Satyanarayana v State of AP, AIR 1986 SC 2130 (2135) : (1986) 3 SCC 141 .
224 Kripanand Pandey v Senior Supdt., Central Jail, Naini, Allahabad, 2012 Cr LJ 571 (DB) : 2011 (9) ADJ 486 [Surjeet Singh v State
of UP, 1984 All LJ 375 (FB); Bal Mukund Jaiswal v Supdt, District Jail, Varanasi, 1998 All LJ 1428 (FB)—Rel. on].
225 N Ratna Kumari v State of Odisha, 2014 Cr LJ 4433 (Ori) (DB) : 2015 (1) Crimes 31 (Ori).
226 Manoj Kumar Agrawal v State of UP, 1995 Cr LJ 646 (All); see also Kutlej Singh v Circle Inspector of Police, 1992 Cr LJ 1173
(Kant-DB).

227 Mahesh Kumar v State of Bihar, 2008 (3) Pat LJR 147 (Pat-DB).
228 Khatri v Bihar, (1981) 1 SCC 635 : 1981 Cr LJ 470 : AIR 1981 SC 928 .
End of Document

[s 58] Police to report apprehensions. –
[s 58] Police to report apprehensions. –
Officers in charge of police stations shall report to the District Magistrate, or, if he so directs, to
the Sub-divisional Magistrate, the cases of all persons arrested without warrant, within the
limits of their respective stations, whether such persons have been admitted to bail or otherwise.
The provisions of section 58 Code of Criminal Procedure, 1973 are not consistent with section 57 of
the NDPS Act. No statutory duty is cast on the officer effecting arrest or seizure to send any report to
the District Magistrate. When an arrest is made under the provisions of the Act, the officer making the
arrest is not bound to send any report to the District Magistrate as provided under section 58 of the
Code of Criminal Procedure.229
229 Swarnaki v State of Kerala, 2006 Cr LJ 65 (79) (DB) : 2006 (3) Crimes 339 (Ker) (Overruling 2004 (2) Ker LT 1072 (Ker)).
End of Document
Mmaneesh Bajpai
[s 59] Discharge of person apprehended. –
[s 59] Discharge of person apprehended. –
No person who has been arrested by a police officer shall be discharged except on his own bond,
or on bail, or under the special order of a Magistrate.
End of Document
Mmaneesh Bajpai
[s 60] Power, on escape, to pursue and retake. –
[s 60] Power, on escape, to pursue and retake. –
(1) If a person in lawful custody escapes or is rescued, the person from whose custody he
escaped or was rescued may immediately pursue and arrest him in any place in India.
(2) The provisions of section 47 shall apply to arrests under sub-section (1) although the
person making any such arrest is not acting under a warrant and is not a police officer
having authority to arrest.
End of Document
Mmaneesh Bajpai
[s 60A]
230 [s 60A]
Arrest to be made strictly according to the Code. –
No arrest shall be made except in accordance with the provisions of this Code or any other law
for the time being in force providing for arrest.]
[s 60A.1] Legislative Changes—
CrPC Amendment Act, 2008 (5 of 2009).—New section 60A has been inserted, by section 10 of the
CrPC (Amendment) Act, 2008 (5 of 2009). New section 60A has been added with a view to
prohibiting arrest except in accordance with the Code or any other law for the time being in force
providing for arrest.231
End of Document
Mmaneesh Bajpai
[s 61] Forms of summons. –
Procedure, 21st ed > THE CODE OF CRIMINAL PROCEDURE > CHAPTER VI PROCESSES TO
COMPEL APPEARANCE > A.—Summons
CHAPTER VI PROCESSES TO COMPEL APPEARANCE
A.—Summons
The processes to compel appearance are dealt with here: (1) Summons (Section 61) and (2) Warrant
(Section 70). Whether a summons or a warrant should issue in the first instance is determined by Cols 4
and 5 of Schedule I. Where a summons has failed to secure attendance, it is open to the court or
Magistrate to issue a warrant (Section 87). In cases where a warrant fails to take effect the procedure of
(3) proclamation as absconder (Section 82) is taken; and if the absconder is not forthcoming (4) his
property is attached and sold (Sections 83, 85). One more method of securing attendance is (5) the taking
of bond with or without sureties (Section 88).
Every summons issued by a Court under this Code shall be in writing, in duplicate, signed by
the presiding officer of such Court or by such other officer as the High Court may, from time to
time, by rule direct, and shall bear the seal of the Court.
The summons is a milder form of process. It is either (a) for appearance, or (b) for producing a
document or thing. The summons for appearance may be issued to an accused person or a witness.
This section and section 70 deal with forms of summons and warrant of arrest and have nothing to do
with the authority of Court to issue summons or warrant of arrest.1
The summons should be clear and specific in its terms as to the title of the Court, the place at which,
the day and the time when, the attendance of the person summoned is required, and it should go on to
say that such person is not to leave the court without leave, and if the case, in which he has been
summoned is adjourned, without ascertaining the date to which it is adjourned.2 For the forms of
Mmaneesh Bajpai
summons to an accused person, see Schedule II, Forms 1 and 30.
[s 61.2] “Issued”.—
The mere making of an order for issue of summons is quite different from the issuance of summons.3
1 Norode Baran Mukherjee v State of WB, 1976 Cr LJ 370 (Cal-DB).

2 Ram Saran, (1882) 5 All 7 .
3 Driver Mohamed v Valli, (1961) 2 Guj LR 222.
End of Document

[s 62] Summons how served. –
A.—Summons
(1) Every summons shall be served by a police officer, or subject to such rules as the State
Government may make in this behalf, by an officer of the Court issuing it or other public
servant.
(2) The summons shall, if practicable, be served personally on the person summoned, by
delivering or tendering to him one of the duplicates of the summons.
(3) Every person on whom a summons is so served shall, if so required by the serving officer,
sign a receipt therefor on the back of the other duplicate.
This section deals with personal service. The mere showing of a summons to a witness is not sufficient
service. Either the summons should be left with the witness or should be exhibited to him and a copy
of it delivered or tendered.4 The tender of the copy is sufficient service.5
Sections 62, 64 and 65 do not contemplate issuance of summons to accused by post, though
permissible to the witnesses. Therefore dismissal of the complainant for non-payment of RPAD
charges for issuing summons to the accused by post would be illegal.6
Mmaneesh Bajpai
Where summonses issued by a Court, for the examination of witnesses, are sent by post instead of
sending them out as provided in this section, no inference can be legitimately drawn against the
accused, from the fact that there was no response from any of the witnesses to whom the summonses
had been sent. The section ensures a two-fold safeguard for proper service : firstly, by providing that
the service should be effected by a police officer or an officer of the court who should see that the
summons is served in the manner provided in the Code and who should be able to report to the court
as to the manner in which the summons was actually served, and, secondly, by authorising the serving
officer to obtain a signed acknowledgment of the service which should ordinarily be treated as very
cogent evidence of service.7 Where summons sent to the accused is not served, the court would not be
justified in canceling the bail bonds of the accused and issuing non-bailable warrant against him.8
[s 62.2] Service through counsel.—
Service on the accused through his counsel is not permissible and as such on failure of the accused to
appear, warrant would not be issued; the procedure would be illegal.9
[s 62.3] Service through registered post.—
Sections 61 and 62 do not contemplate service through registered post.10
[s 62.4] Ensuring—Presence of Witnesses.—
When summons issued has not been served on the witnesses by a police officer, repeatedly, the
Magistrate may resort to section 69. If after due service, the witness does not appear before the court,
the court should issue coercive processes for securing the presence of the witness before it. In suitable
cases, or in the case of chronic or persistent failure to appear in response to the summons, a complaint
can be laid under section 174 Indian Penal Code, 1860. The Explanation (2) in section 309 also can be
made use of, in suitable cases, by the Magistrate.11
When power is conferred then the same has to be exercised in the mode prescribed in the statute and
in no other way.12
Where the summons to witness were not returned after service, the trial Judge ought to await service
of summons.13
See also commentary under section 87, infra.

4 Karsanlal Danatram, (1868) 5 BHCR (Cr C) 20.

5 Queen v Punamalai, (1882) 5 Mad 199; Emperor v Sahdeo Rai, (1918) 40 All 577 .
6 Nav Maharashtra Chakan Oil Mill Ltd v Shivashakti Poultry Farm, (2002) 3 BC 403 : AIR 2001 Kan HCR 2862 : 2002 Cr LJ
4446 (4446) (Kant).
7 Sudhir Kumar Dutt, (1948) 51 Bom LR 21 FC.
8 Amrendra Verma v State of Bihar, 2006 (2) Pat LJR 638 (Pat).
9 Satya Securities v Uma Erry, (2002) 4 Rec Cri R 781 : 2002 Cr LJ 3714 (3715) (HP).
10 Guthikonda Sri Hari Prasada Rao v Guthikonda Lakshmi Rajyma, 1992 Cr LJ 1594 (1595) (AP).
11 State v Veerappan, 1980 Mad LW (Crl) 187 (FB).
12 State of UP v Singhara Singh, AIR 1964 SC 358 : 1964 (1) Cr LJ 263 (2).
13 State of MP v Ganjle, 1983 (1) Crimes 404 (MP).
End of Document

[s 63] Service of summons on corporate bodies and societies. –
A.—Summons
Service of a summons on a corporation may be effected by serving it on the secretary, local

manager or other principal officer of the corporation, or by letter sent by registered post,
addressed to the chief officer of the corporation in India, in which case the service shall be
deemed to have been effected when the letter would arrive in ordinary course of post.
Explanation.—In this section, “corporation” means an incorporated company or other body

corporate and includes a society registered under the Societies Registration Act, 1860 (21 of
1860).
[s 63.1] Scope.—
Though societies registered under the Societies Registration Act, 1860, may not be formally
incorporated, yet the Explanation, by its inclusive definition, brings them under the present section.
When a corporate body is an accused before the Court, the summons for appearance of the corporate
body has to be sent in the name of the corporate body itself.14
A summoning order is not a judgment and can be recalled/reviewed by the court issuing it.15
[s 63.2] Service on corporation.—

Mmaneesh Bajpai
With regard to service of summons on a corporation (Bank), service of the same on its branch
manager shall be deemed to be a service on the bank itself.16
14 Anil D Ambani v State of Bihar, 2006 (4) Pat LJR 571 (Pat) (Summons issued to Managing Deputy Director of company set aside).
15 Prakash Industries Ltd v State, 2004 Cr LJ 744 (747) (Del) (Following 1992 Cr LJ 3779 (SC)).
16 Central Bank of India v Delhi Development Authority, 1981 Cr LJ 1476 (Del).
End of Document

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Date and Time: 19 August 2020 09:31:00 IST

1. THE CODE OF CRIMINAL PROCEDURE

THE CODE OF CRIMINAL PROCEDURE

(ACT NO. 2 OF 1974)

[ 25th January 1974 ]

An Act to consolidate and amend the law relating to Criminal Procedure.

BE it enacted by Parliament in the Twenty-fourth Year of the Republic of India as follows :—

THE CODE OF CRIMINAL PROCEDURE

[s 1] Short title, extent and commencement.-

(a) to the State of Nagaland,

[s 1.1] Historical Background.—

Mmaneesh Bajpai Page 2 of 11

(see section 5).

[s 1.2] Extent and applications.—

[s 1.3] Power of CBI to investigate in Nagaland.—

Mmaneesh Bajpai Page 3 of 11

DSPE only for the purpose of investigation.8

[s.1.4] Amendment power of State Legislature.—

[s 1.5] Not a penal enactment.—

[s 1.6] Procedural Law.—

[s 1.7] No vested right in any course of procedure.—

[s 1.8] Violation of procedure.—

Mmaneesh Bajpai Page 4 of 11

[s 1.9] Exhaustive Code.—

[s 1.11] Aggrieved person.—

[s 1.12] Retrospective operation.—

Mmaneesh Bajpai Page 5 of 11

some good reason or other why they should not be.26

[s 1.13] Tribal areas.—

Para 5(1) of the Fifth Schedule, Pt B of our Constitution runs as under:—

This direction came into force on the 1 April 1974.

Mmaneesh Bajpai Page 6 of 11

[s 1.14] Interpretation of Statutes—General Principles.—

There is a presumption in favour of the constitutionality of statutes as well as delegated legislation.33

A statute enacting an offence or imposing a penalty is strictly construed.34

Mmaneesh Bajpai Page 7 of 11

intention not to repeal the existing legislation.36

Mmaneesh Bajpai Page 8 of 11

2 KRK. Vara Prasad v UOI, AIR 1980 AP 243 (DB).

3 Madhavkumar Anand, 1984 Cr LJ NOC 175 (Punj).

9 Indra Kumar v State of Bihar, AIR 1988 Pat 309 .

11 Green Empress v Mona Puna, (1892) 16 Bom 661.

12 Subramanian Swamy v Raja, AIR 2014 SC 1649 : (2014) 8 SCC 390 .

Mmaneesh Bajpai Page 9 of 11

14 Abdullah Bhat v Gulam Mohd Wani, 1972 Cr LJ 277 (J&K-FB).

18 Maxwell on the Interpretation of Statutes, 10th Edn, p 379.

23 MC Mehta v UOI, AIR 2007 SC 1087 : (2007) 1 SCC 110 .

24 Ganesh Narayan Sathe, Re, (1889) 13 Bom 600.

Mmaneesh Bajpai Page 10 of 11

Mmaneesh Bajpai Page 11 of 11

THE CODE OF CRIMINAL PROCEDURE

In this Code, unless the context otherwise requires,—

(a) “bailable offence”

48 Re, TS Chokalingam, AIR 1946 Mad 390 : 47 Cr LJ 843.

52 Bittu v State of Rajasthan, 1998 Cr LJ 3036 (Raj).

53 Om Prakash v UOI, AIR 2012 SC 545 : (2011) 14 SCC 1 .

Mmaneesh Bajpai Page 2 of 2

THE CODE OF CRIMINAL PROCEDURE

55 ML Sethi v RP Kapoor, AIR 1967 SC 528 (536) : 1967 Cr LJ 528 .

THE CODE OF CRIMINAL PROCEDURE

(c) “cognizable offence”

[s 2.1] Scope of section 2(c).—