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CRIMINAL

PROCEDURE
CODE
Notes for Competitive Exams

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INTRODUCTION TO THE CODE OF CRIMINAL PROCEDURE 1973

When India came under the Dominion of East India Company, Muhammaden criminal law
was being administered by the courts. in the beginning the policy of British rulers was to
maintain the status quo in the matter of administration of Justice. by and by the defect of
Muhammedan criminal law became very clear and therefore, efforts were made to do
away with those defects.

In 1882 an uniform criminal procedure for the whole of Indian Presidency towns as well
as the provinces were enacted which was known as the Criminal Procedure Code 1882.
this code was finally replaced by another code which made thorough provision of
criminal procedure relating to all areas. this was the Criminal Procedure Code 1898,
which remained in Force for about three quarter of a century before being replaced by
the present code of criminal procedure 1973.

The Indian Law Commission 1955 was asked to undertake a detailed examination of the
criminal procedure 1898 and suggest changes to be made in it. some recommendations
were made by the law commission in its 14th report submitted on September 26th 1958.
the commission submitted four reports 32nd, 33rd, 35th and 36 between 1963 and 1968.
Finally the 41st report was submitted by the commission in September 1968 making
detailed recommendations regarding proposed changes in the criminal procedure.

The recommendations of the commission were examined by the government in the


light of the following considerations
1. An accused should get a fair trial in accordance with the accepted principles of
natural justice
2. 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
3. the procedure should not be complicated and should, to the utmost extent
possible, ensure fair deal to the poorer sections of the community

In the light of recommendations of the commission a draft bill was introduced in the Rajya
Sabha on December 10 1970. the bill was referred to a joint select committee of both the
houses of Parliament. finally the bill after having been passed by the Parliament has
emerged in its present form as the code of criminal procedure 1973 (Act number 2 of
1974). it received the assent of President of India on January 25, 1974 and came into force
on April 1, 1974.

The object of the code is to provide a machinery for the punishment of offenders against
the substantive criminal law as contained in the Indian penal code as well as in other act.
on occasions the courts may fail to observe strictly the procedure as prescribed by the
code. such failures of observance of the prescribed procedure are termed as
irregularities. the procedural irregularities are of two kinds: irregularities that vitiate the

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proceedings as laid down in section 461 and those that do not vitiate the proceedings are
laid down in section 460 of the code.

Changes introduced by the new code


1. The new set of criminal courts is based on the principle of separation of Judiciary
from the executive. district magistrate and other subordinate magistrates
continue to deal with problems relating to maintenance of law and order and the
prevention of crime. judicial hierarchy is represented by the chief judicial
magistrate and 1st and second class judicial magistrate.
2. The new Code provides an uniform set of criminal courts throughout the country
3. All the judicial magistrate shall function under the control of the High Court
4. the system of Presidency magistrate has been extended to all the cities with a
population of more than 1 million. These cities will be called Metropolitan areas
and the magistrates are termed as Metropolitan magistrates.
5. if a police officer refuses to record an information about commission of a crime
the aggrieved person will have a right to send the information by post to the
superintendent of police
6. the provisions for payment of compensation to victims of crime or for vexatious
prosecutions have been liberalized
7. legal representative of parties have been given right to compound the case with
the permission of the court after the death of the parties
8. the Jury system has been abolished
9. those criminal cases in which Central government is concerned may be withdrawn
only with the consent of the central government.
Etc.

THE CODE OF CRIMINAL PROCEDURE 1973


CHAPTER 1 PRELIMINARY

Section 1 short title, extent and commencement


Read all the three clauses and explanation to this section

Section 2 definitions
(a) Bailable offence
(b) charge
(c) cognizable offence
(d) complaint
(l) non cognizable offence
(r) police report
(w) Summons-case
(wa) victim
(x) warrant case

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✓ In case of bailable offences, bail is the matter of right of the accused whereas in
case of non bailable offences it is the discretion of the court to grant bail or not.
✓ In the case of cognizable offence, Police can start investigation without permission
of the magistrate. FIR can be lodged in these matters. cognizable offence are
shown in the first schedule of the code.
✓ In case of non cognizable offence police cannot start investigation without
permission of the magistrate. no FIR can be lodged under section 154 only NCR is
lodged under section 155.
✓ In summons case framing of charge is not necessary
✓ in warrant case framing of charge is necessary

A complaint in a criminal case is what a plaint is in a civil case


1. It is an allegation which may be made orally or in writing
2. the allegation must be that some person known or unknown has committed an
offence
3. it may not mention the particular section of the statute under which the offence
has been commited. but mentioning of a wrong section does not vitiate the
character of the complaint
4. complaint must be made to a magistrate. a police officer is not a magistrate and as
such a petition or information sent to a police officer is not a complaint.
5. it must be made with a view that magistrate should take action under the code
6. it is not necessary that complaint should be made by the aggrieved person. it may
be made by any person aware of the offence
7. a complaint may be sent by post or by a telegram

Distinction between complaint and FIR


1. In complaint the allegation is made orally or in writing to a magistrate; but the FIR
is given to an officer in charge of a police station
2. a complaint may relate to a cognizable or non cognizable offence. a FIR must relate
to a cognizable offence on the face of it
3. a magistrate takes cognizance of an offence on a complaint made to him but he
cannot do so on a FIR

Enquiry- an enquiry means every enquiry other than a trial, conducted under this code
by a magistrate or Court. it was held in Alim and others 1982 that all those proceedings
before a magistrate prior to the framing of a charge which do not result in conviction can
be termed as enquiry. the proceedings under section 209 of the code are covered by the
term enquiry.

Difference between investigation and enquiry


1. an investigation is made by a police officer or by some person authorised by a
magistrate. enquiry is made by a magistrate or a court

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2. the object of an investigation is to collect evidence for the prosecution of the case.
the object of enquiry is to determine the truth or falsity of certain facts.
3. investigation is the first stage of criminal case and is normally followed by enquiry
by a magistrate. enquiry is the second stage of a case and is ordinarily preceded
by investigation.
4. investigation is not a judicial proceeding; whereas an enquiry is a judicial
proceeding

Trial - enquiry differs from trial. trial is not defined in the code. trial is a proceeding which
involves examination and determination of a cause by a judicial Tribunal which has
jurisdiction over it. it is a judicial proceeding which ends in conviction or acquittal of the
accused.

Difference between enquiry and trial - both enquiry and trial and judicial proceedings.
enquiry differs from trial in the following ways
1. an enquiry does not necessarily mean an enquiry into an offence because it may
relate to matters which are not offenses. for example, enquiry made in disputes
relating to immovable property with regard to possession, Public nuisance, or for
the maintenance of wives and children. a trial is always of an offence.
2. an enquiry into an offence never ends in conviction or acquittal. at the most it may
result in discharge or commitment of the case for trial by a magistrate or the
session judge. a trial invariably ends in acquittal or conviction of the accused.
3. enquiry proceeds trial and trial follows enquiry
4. enquiry is the second stage and the trial is the third stage in a criminal case

Investigation- investigation includes all the proceedings under this code for the
collection of evidence. these proceedings are conducted by a police officer or by any
person who is authorised by a magistrate in this behalf but not the magistrate himself.
state of UP versus Sant Prakash 1976
It has been held in Baldev Singh 1975 that the arrest and detention of a person for the
purpose of Investigation of a crime forms an integral part of the process of Investigation.

There are three stages in a criminal case: investigation, enquiry and trial
The first stage is that of Investigation wherein a Police Officer either by himself or under
orders of a magistrate investigates into a case. if the investigating officer find that no
offence has been committed, he reports the fact to a magistrate who drop the proceedings
and the case thereby comes to an end. but if his investigation reveals the commission of
an offence, the case is sent to the magistrate.
in this case begins the second stage of criminal case which may either be the stage of
enquiry or trial. if the magistrate thinks that the case is both triable by him and also that
he is capable of passing adequate sentence, he may himself deal with the case and either
Convict the accused, or discharge or acquit him. but where the offence, in the opinion of

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the magistrate, is a serious one not triable by him or is triable but he is not competent to
pass adequate sentence on conviction, he commits the case to the court of session.

Judicial proceeding - judicial proceeding includes the whole proceeding from the filing
of the complaint until the decision of the court. under Section 202 of the code an enquiry
or investigation may be ordered and such enquiry or investigation is a part of judicial
proceeding. the term “judicial proceeding” includes enquiry and trial but not
investigation.

Public Prosecutor- a public prosecutor is an executive officer but in a sense he is the


officer of the court also. 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.
CHAPTER 2 CONSTITUTION OF CRIMINAL COURTS AND OFFENCES

section 6 classes of criminal courts: 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,
1. courts of session
2. Judicial Magistrate of the first class and in any Metropolitan Area Metropolitan
magistrates
3. Judicial Magistrate of the second class
4. executive magistrate

Section 7 territorial divisions: the state government may after consultation with the
high court alter the limits or the number of such divisions and districts
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 subdivisions

Section 8 Metropolitan areas: 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 1 million shall be a Metropolitan area for the
purpose of this code.
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
subsection 1 to be a Metropolitan Area. 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 1 million.

Section 9 Court of sessions: the state government shall establish a court of session for
every sessions division
every Court of session shall be presided over by a judge to be appointed by the High Court
The High Court may also appoint additional session judge and assistant sessions
judges to exercise jurisdiction in a court of session

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It was held in Birendra Kumar Rai vs Union of India 1992 that a place inside jail is a
place within the meaning of section 9(6).
the trial should ordinarily be held in open court. visheshwar vs State 1976
As for holding the trial in jail is concerned it can be done only when a notifcation is issued
by the high court to that effect
in Kehar Singh versus state 1989 the trial of Shrimati Indira Gandhi murder case was
held in Tihar jail in pursuance of a notification issued by the Delhi High Court.

Section 10 subordination of assistant sessions judges


All assistant sessions judge shall be subordinate to the sessions judge in whose Court they
exercise jurisdiction.
Section 11 courts of judicial magistrates
Section 12 chief judicial magistrate and additional chief judicial magistrate
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
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.

Section 13 special judicial magistrates


The High court May if requested by the central or state government so to do to 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 of the first
class or the second class, in respect to particular cases or to particular classes of cases, in
any local area, not being a Metropolitan area
such magistrate shall be called special judicial magistrates and shall be appointed for such
term not exceeding one year at a time as the high court made by General or special order
direct

Section 14 local jurisdiction of judicial magistrate


Magistrate referred to in this section may exercise his power within his jurisdiction
where a person is appointed magistrate for a district and there is no notification by the
state government limiting his jurisdiction the powers and jurisdiction of the magistrate
extend throughout the District under the provision of section 14

Section 15 subordination of judicial magistrates 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

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Section 16 courts of Metropolitan magistrates
Section 17 MM and ACMM
Section 18 special MM
Section 19 subordination of MM: 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 session judge, be
subordinate to the chief metropolitan magistrate

Section 20 executive magistrates in every district and in every Metropolitan Area the
state government may appoint as many person as it thinks fit to be executive magistrates
and shall appoint one of them to be the district magistrate
the state government may appoint an executive magistrate to be an additional district
magistrate

Section 21 special executive magistrate


Section 22 local jurisdiction of Executive magistrates
Section 23 subordination of Executive magistrates all executive magistrates other than
additional district magistrates shall be subordinate to the district magistrate and every
executive magistrate other than the sub-divisional magistrate( sec. 20(4) ) exercising
powers in a subdivision shall also be subordinate to the sub divisional magistrate subject
however to the general control of the district magistrate.

Section 24 public prosecutors


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 Prosecutor 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
The central government may appoint one or more Public Prosecutor for the purpose of
conducting any case or class of cases in any district or local area.
For every district the state government shall appoint a public prosecutor and may also
appoint one or more additional Public Prosecutor for the district
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 Prosecutor or
additional Public Prosecutor for the district
A person shall be eligible to be appointed as a public prosecutor or an additional Public
Prosecutor under subsection 1 or subsection 2 or sub section 3 or sub section 6 only if he
has been in practice as an advocate for not less than 7 years
The central government or the state government may appoint for the purpose of any case
or class of cases a person who has been in practice as an advocate for not less than 10
years as a special Public Prosecutor
Provided that the court may permit the victim to engage an advocate of his choice to assist
the prosecution under this subsection

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A Public Prosecutor represents the state in whose name the prosecution is conducted. all
offences affect the individual injured as well as the public in general. therefore in all
offences the state is the prosecutor. the public prosecutor does not represent the police
but the state. his duty is to aid the court in discovering the truth.

Section 25 Assistant Public Prosecutor the state government shall appoint in every
district one or more Assistant Public Prosecutor for conducting prosecutions in the courts
of magistrates
Section 24 provides that the Assistant Public Prosecutor should also be a practicing
advocate but section 25 does not provide so and therefore under certain circumstances
even a police officer can be appointed as Assistant Public Prosecutor under this section

Section 25A Directorate of prosecution this section has been added by CrPC
Amendment Act 2005. the state government may establish a Directorate of prosecution
consisting of a director of prosecution and as many Deputy Director of prosecution as it
thinks fit. they shall be eligible only if they have been in practice as an advocate for not
less than 10 years and such appointment shall be made with the consent of the Chief
Justice of High Court
Every PP, additional PP and special PP appointed by the state government under section
24 to conduct cases in the high court shall be subordinate to the director of prosecution
every PP and additional PP and special PP appointed by the state government under
section 24 to conduct cases in district courts and every assistant PP appointed under
section 25 to conduct cases in magistrates court shall be subordinate to Deputy Director
of prosecution

Powers of PP Section 301 appearance by PP


the public prosecutors or assistant PP in charge of a case may appear and plead without
any written authority Before any court in which that case is under enquiry trial or appeal
Section 321 withdrawal from prosecution
the PP or asst. PP in charge of a case may with the consent of the court at any time before
the judgement is pronounced withdraw from the prosecution of any person either
generally or in respect of any one or more of the offences for which he is tried
Consequences of withdrawal
if it is made before a charge has been framed the accused shall be discharged in respect
of such offence
if it is made after the charge has been framed he shall be acquitted in respect of such
offence
in case where no charge is required to be framed he shall be acquitted
Definition of PP section 2(u) public prosecutors means any person appointed under
section 24 and includes any person acting under the directions of public prosecutor.

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CHAPTER 3 POWER OF COURTS

Section 26 courts by which offences are triable any offence under the Indian Penal Code
may be tried by
1. the high court or
2. the court of session or
3. any other court by which such offence is shown in the first schedule to be triable
Provided that any offence under section 376A 376B 376C 376D 376AB 376D 376A and
376DB of the Indian Penal Code shall be tried as far as practicable by a court presided
over by a woman.

Section 27 jurisdiction in the case of juveniles


Section 28 sentences which high court and sessions judge as May pass
Section 29 sentences which magistrate may pass
Section 30 sentence of imprisonment in default of fine the court of a magistrate may
award such term of imprisonment in default of payment of fine as is authorised by law
read with section 65 IPC

PRE TRIAL PROCEEDINGS GENERAL OBSERVATIONS


importance of fair trial: one principal object of criminal law is to protect society by
punishing the offenders. however justice and fair play require that no one be punished
without a fair trial. a person might be under a thick cloud of suspicion of guilt, he might
have been even caught red handed, and yet he is not to be punished unless and until he is
tried and adjudged to be guilty by a competent court. in the administration of justice it is
of prime importance that justice should not only be done but also appear to have been
done. everyone is presumed to be innocent unless his guilt is proved beyond reasonable
doubt in a trial before an impartial and competent court.

The Criminal Procedure Code does not contemplate the use of the police in respect of
Investigation into each and every offence. the code has classified all of offences into two
categories, cognizable and non cognizable.

The classification of offences between cognizable and non cognizable is apparently and
essentially intended to indicate as to whether the arrest in respect of an offence can be
made with or without warrant.

Importance of procuring accused’s presence at trial:


fair trial requires that the trial proceedings are conducted in the presence of the accused
and that he is given a fair chance to defend himself. the presence of the accused at the trial
can well be ensured by simply arresting and attaining him during trial. it may be stated
as a broad principle that the liberty of a person should not be taken away without Just
Cause. if the presence of the accused at the trial cannot be procured except by arrest and
detention, the accused should by all means be arrested and detained pending his trial;

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however, if his presence can be reasonable ensured otherwise than by his arrest and
detention, the law ought not to deprive him of his Liberty.

How to procure the presence of the accused at the trial


the code contemplates mainly two methods of procuring the attendance of the accused at
his trial, either by issuing a summon to him or by arrest and detention
the code classifies all criminal cases into summons case and warrant cases. a warrant case
means a case relating to an offence punishable with death, imprisonment for life or
imprisonment for a term exceeding two years and summon case means a case relating to
an offence and not being a warrant case.
a warrant case relates to a serious offence while a summons case relates to a
comparatively less serious crime. therefore the trial procedure prescribed for a warrant
case is much more elaborate than that provided for summons case.
See various provisions of chapter 19 and 20

Arrest of persons
the provisions regarding arrest of persons are mentioned under chapter 5 ranging from
section 41 to 60A. although the major sections for arrest of persons are incorporated from
section 41 to 47.
ARREST OF PERSONS

section 41 when police may arrest without warrant: cases where a police officer may
arrest a person without warrant are specified in schedule 1 of this code. this section
enumerates 9 categories of offences and cases relating thereto where a police officer may
arrest any person without an order from a magistrate and without a warrant

Sections 41A, 41B, 41C and 41D were inserted by Act 5 of 2009
Section 41A notice of appearance before police officer
section 41B procedure of arrest and duties of officer making arrest
section 41 C control room at district
section 41 D right of arrested person to meet an advocate of his choice during
interrogation

Section 42 arrest on refusal to give name and residence: if the person does not give his
name or residence, or gives a name and residence which the police officer believes to be
false he may be taken into custody pending ascertainment of his name and residence. in
no case should he be detained beyond 24 hours but should be presented before a
magistrate

Section 43 arrest by private person and procedure on such arrest: a private individual
may arrest a person only when the person is a proclaimed offender or if the person
commits cognizable and non bailable offence in his view. the word “in his view” means

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“in the presence of” and not “in his opinion” or “on suspicion” or “on receipt of
information”

Section 44 arrest by magistrate: subsection (1) gives the magistrate power to arrest a
person who has committed an offence in his presence and also to commit him to custody

Section 45 protection of members of the armed forces from arrest: a member of the
armed forces may be arrested only after obtaining the consent of the central government

Section 46 arrest how made: this section describes the mode of arrest. arrest in the legal
sense under the code means taking into custody of another person under authority of law,
for the purpose of holding or detaining him to answer a criminal charge and preventing
the commission of an offence

Section 47 search of place entered by person sought to be arrested


POST ARREST PROCEDURE

Section 51 search of arrested person: this section makes provision regarding search of
the arrested person and making an Inventory of the articles found upon him. before
making a personal search of the accused, the searching officer and others assisting him
should give their personal search to the accused as it avoids possibility of implanting and
object to be shown in the search. where no Grounds of arrest are given to the accused, the
search becomes illegal. Ravindra nath prusty vs. state of Orissa 1984

Section 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

Section 53 examination of accused by medical practitioner at the request of police


officer: this section provides that a medical examination will be done at the request of a
Police Officer not below the rank of a Sub Inspector. however superior officers of the
police or the court are not barred from exercising this said power if it is necessary for
doing justice. as the medical examination of the accused under section 53 is part and
parcel of the process of Investigation, the police could get the accused medically
examined even after the framing of the charge by the court by exercising their powers of
further investigation under section 173(8). Anil Lokhande versus state of Maharashtra
it was also held in this case that examination of person of the accused cannot be confined
only to external examination of his body but many at times it may become necessary to
make examination of some organs inside the body for the purpose of collecting evidence.

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it was held in Neeraj Sharma versus state of UP 1993 that taking sample of the hairs of
the accused is covered by the medical examination and the magistrate is empowered to
direct search examination.
the obtaining of such evidence does not violate the constitutional protection provided by
article 20(3). state of Bombay vs Kathi Kalu 1961

Section 53A examination of person accused of rape by medical practitioner it was


inserted by CrPC Amendment Act 2005

Section 54 examination of arrested person by medical officer : this section confirm on


the arrested person the right to have his medical examination done. it was held in DJ
Vaghela versus Kantibhai jethabhai 1985 that the magistrate owes a duty to inform the
arrested person about his right to get himself examined in case he has complaints of
physical torture or mal-treatment in police custody. the Supreme Court has cautioned the
lower courts not to adopt casual approach to custodial torture. Sheela Barse vs State of
Maharashtra 1983

Section 54A identification of person arrested: this section was inserted by CrPC
Amendment Act 2005 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 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

Section 58 police to report apprehensions it was held in Swarnaki versus state of


Kerala 2006 that section 57 of the NDPS Act 1985 provides that the officer who makes
any arrest or seizure shall report the matter to his immediate superior officer. therefore
when an arrest or seizure is made under the provision of the NDPS Act, the officer making
the rest is not bound to send any report to the district magistrate as provided under
section 58 of the CrPC and any such failure to send a report will not make the search and
seizure illegal or vitiate the trial.

Section 59 discharge of person apprehended

Section 41B procedure of arrest and duties of officer making arrest


RIGHTS OF ARRESTED PERSON
Police have been given various powers for facilitating the making of arrest, the powers
are subject to certain restraints. these restraints are primarily provided for the protection
of the interests of the person to be arrested, and also of society at large

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RIGHT TO KNOW THE GROUND OF ARREST
1. according to Section 50(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. when a subordinate officer is deputed by a senior police officer to arrest a person
under Section 55 such subordinate officer shall, before making the arrest, notify
to the person to be arrested the substance of the written order given by the senior
police officer specifying the offence or other cause for which the arrest is to be
made. non compliance with this provision will render the arrest illegal
3. in case of arrest to be made under a warrant, section 75 provide that “the police
officer or other person executing a warrant of arrest shall notify the substance
thereof to the person to be arrested, and if so required, shall show him the
warrant”. if the substance of the warrant is not notified the arrest would be
unlawful
4. our constitution has also conferred on this right the status of a fundamental right.
Article 22(1) of the constitution provides “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
5. timely information of the grounds of arrest serves him in many ways. it enables
him to move the proper court for bail, or in appropriate circumstances for writ of
Habeas Corpus, or to make expeditious arrangements for his defence
6. if the arrest is made by a magistrate without a warrant under Section 44, the case
is covered neither by any of the sections 50, 55 and 75 nor by any other provision
in the code requiring the magistrate to communicate the ground of arrest to the
arrested person. this lacuna in the code, however, will not create any difficulty in
practice as the magistrate would Still Be bound to state the ground under article
22 clause 1 of the constitution
7. the rules emerging from decisions such as Joginder Singh vs. status of UP 1994
and DK Basu vs State of West Bengal 1997 have been enacted in section 50A
making it obligatory on the part of the police officer not only to inform the friend
or relative of the arrested person about his arrest but also to make an entry in a
register maintained by the police

INFORMATION REGARDING THE RIGHT TO BE RELEASED ON BAIL


section 50(2) provides, where a police officer arrest 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 securities on his behalf

RIGHT TO BE TAKEN BEFORE A MAGISTRATE WITHOUT DELAY


whether the arrest is made without Warrant by a police officer or whether the arrest is
made under a Warrant by any person, the person making the arrest must bring the
arrested person before a judicial officer without unnecessary delay.

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Section 56 person arrested to be taken before a 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
section 76 person arrested to be brought before Court without delay: the police officer
or other person executing a warrant of arrest shall without unnecessary delay bring the
person arrested before the court before which he is required by law to produce such
person.
provided that such delay shall not, in any case, exceed 24 hours exclusive of the time
necessary for the journey from the place of arrest to the magistrate’s court.

RIGHT OF NOT BEING DETAINED FOR MORE THAN 24 HOURS WITHOUT JUDICIAL
SCRUTINY
section 57 person arrested not to be detained more than 24 hours: it may also be noted
that the right has been further strengthened by its incorporation in the constitution every
fundamental right under article 22(2).
if a police officer fails to produce an arrested person before a magistrate within 24 hours
of the arrest he shall be held guilty of wrongful detention Sharif bhai vs Abdul Razzaq
1961
the magistrate can also exercise his powers for making searches under section 97 to issue
a search warrant and in case of non compliance to proceed against the officer for
contempt and initiate proceeding under section 342 IPC
Article 22 clause 2 on the face of it, appears to apply to cases of arrest without warrant as
well as of arrests under a warrant. however in state of Punjab versus Ajaib Singh 1953
the Supreme Court has observed that the said article relates to arrest without warrant
only. the court felt that in case of an arrest on a warrant the judicial mind had already
been applied to the need for arrest and that there was no need to provide any safeguard
in absolute terms. this view has been criticized to be unreasonable and wrong

RIGHT TO CONSULT A LEGAL PRACTITIONER


article 22 clause 1 of the constitution provides that no person who is arrested shall be
denied the right to consult a legal practitioner of his choice. Further, as has been held by
the supreme court the state is under the constitutional mandate under article 21 to
provide free Legal Aid to an indigent accused person.

RIGHT TO BE EXAMINED BY A MEDICAL PRACTITIONER


section 54 examination of arrested person by medical practitioner at the request of
the arrested person: this section is counterpart of section 53. while section 53 enables a
police officer to compel an arrested person to undergo a medical examination with a view
to facilitate investigation. section 54 gives the accused the right to have himself medically
examined to enable him to defend and protect himself properly.

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The frequent instances of police atrocities and custodial deaths have prompted the
supreme court to have a review of its decisions like Joginder Kumar, nilabati Behera,
Shyamsundar Trivedi and therefore the supreme court in DK Basu case had issued
guidelines to be followed in all cases of arrest or detention till legal provisions are made:
1. Police officer shall bear name tags with their designations
2. memo of arrest shall be prepared
3. Arrested person must be aware of his right to have someone informed of his arrest
4. Arrested person should be subjected to medical examination every 48 hours
during his detention in custody
5. Copies of all the documents including the memo of arrest should be sent to the
ilaka megistrate for his record
6. arrested person may be permitted to meet his lawyer doing interrogation
7. Police control room should be provided at all district and state headquarters

PROCESS TO COMPEL APPEARANCE


SUMMONS

section 61 form of summons: it must clearly bear the seal of the court and show the name
and address of the person summoned, the place at which, the date and time when the
person summoned is required to appear before the court. it should also contain the place,
time and nature of the offence committed.
for the form of summons see form number 1 of the second schedule

Section 62 summons how served: this section deals with personal service of summons.
it requires that summons should not only be shown but a copy of it be left, exhibited,
delivered or tended to the person summoned. by requiring to obtain signed
acknowledgement of the service of summons, subsection (3) ensures a cogent evidence
of service. summons should be served personally.

section 63 service of summons on corporate bodies and societies: it was held in


Central Bank of India versus DDA 1981 that, branch manager is a local manager and if
summon has been served on him, the service shall be deemed to have been affected on
the company

section 64 service when person summoned cannot be found: this section provides that
if personal service as provided in Section 62 cannot be affected, the law permits service
of summons on some adult male member of the family

section 65 procedure when service cannot be affected as before provided: summons


on a person employed abroad cannot be served by affixtures to his house in India but it
should be sent to the Indian Embassy for service

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section 66 service on government servant: this section requires that on receipt of the
summons, the head of the office must cause it to be served personally on the government
servant as required by Section 62.

section 67 service of summons outside local limits: it shall be sent to the magistrate
within whose local jurisdiction the person is either resident or is otherwise present.

section 68 proof of service in such cases and when serving officer not present

section 69 of service of summons on witness by post: this is a new section providing


service of summons on witness only by post. the new code permits service by post but
only on witnesses
although under section 63 also summon could be served by post to chief officer of the
corporation.
Section 70 form of warrant of arrest and duration :warrant of arrest shall be in such a
form as is prescribed in form number 2 of the second schedule of this code. a warrant
once issued shall remain in force until it is cancelled or executed

Section 71 power to direct security to be taken: this Section provides for issue of a
bailable warrant

Section 72 warrants to whom directed: ordinarily a warrant is directed to one or more


Police officers but this Section provides that it may be directed even to persons other
than Police officers if there is necessity for immediate arrest and no police officer is
immediately available

Section 73 warrant may be directed to any person: under Section 73 a warrant may be
addressed to any person within the local jurisdiction for the arrest of
i. any escaped Convict
ii. proclaimed offender
iii. any person accused of a non bailable offence who is avoiding arrest
it was held in State vs Dawood Ibrahim Kaskar 1997 that a warrant under Section 73 is
and can be issued for appearance before the court only and not before the police

Section 74 warrant directed to police officer: what is required under this Section is
endorsement, by one police officer to another, of the execution of the warrant. the
endorsement must be in the name of a Police Officer and not by his designation, for an
endorsement, by designation is not strictly legal. no person other than the police officer
to whom the warrant of arrest is endorsed is competent to execute it

Section 75 notification of substance of warrant: this Section requires that the substance
of the warrant must be notified to the person to be arrested, and on demand it must also
be shown to him so that he may have an opportunity to read it. if the public servant

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executing a warrant of arrest does not notify the substance to the arrested person in
accordance with this Sections, he will be acting in violation of law. the police officer must
not proceed to make arrest unless he is in possession of a warrant of arrest because the
person to be arrested has the right to see it

Section 76 person arrested to be brought before the court without delay

Section 77 where warrant may be executed: a warrant of arrest may be executed at any
place in India. the Section only declares that every warrant issued by any magistrate in
India may be executed at any place in India. execution of the warrant is not restricted to
the local limits of the jurisdiction of the magistrate issuing the warrant or of the court to
which he is subordinate

Section 78 warrant forwarded for execution outside jurisdiction : Section 78 to 81 of


this code deal in detail the procedure to be adopted for execution of warrant outside the
local limits of the jurisdiction of the court issuing the same, these Sections limit and
control the provisions of Section 74

Section 79 warrant directed to police officer for execution outside jurisdiction


Section 80 procedure of others of person against whom warrant issued
Section 81 procedure by magistrate before whom such person arrested is brought

PROCLAMATION

Section 82 proclamation for person absconding:


1. a proclamation cannot be issued without first issuing a warrant of arrest
2. If there is no authority to issue a warrant of arrest, the issuing of proclamation
would be obviously illegal. before issuing a proclamation the court is to satisfy
itself by examining the serving officer or in any other manner that a warrant of
arrest had already been issued and that the accused is absconding, concealing or
evading the execution of the warrant.
3. the requirement as to time and place is mandatory, and if the period fixed is less
than 30 days the subsequent proceedings will be invalid.
4. as part of the efforts to arm the courts to help investigation without possibility of
Human Rights violations, the CrPC Amendment Act 2005 now empowers the court
to declare a person proclaimed offender if he is accused of some serious offence
and fails to appear in response to its proclamation under subsection(4) of Section
82. a new section 174-A making the non-appearance an offence has also been
incorporated in the IPC
5. The ordinary process for compelling appearance is in the first instance to issue
summons under section 61. when summons so issued cannot be served it is the
duty of the court to issue a warrant. when warrant also cannot be executed the
court may proceed under Section 82 and 83 and issue proclamation and attach

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property of the person who is avoiding service of process. George versus Joseph
1953
6. if the absconder is an accused person, proceed under section 299 of the code.
record of evidence in absence of accused
7. a person who had gone abroad before the issue of warrant of arrest cannot be said
to be absconding or concealing.

ATTACHMENT OF PROPERTY

Section 83 attachment of property of person absconding: the object to attaching the


property of an absconder is not to punish him but to compel his appearance. section 174
of the IPC penalises disobedience of the proclamation

Section 84 claims and objections to attachment: claims and objection in regard to the
attached property can be preferred only so long as that property continues to remain
under attachment.
this section deals with rights of persons other than proclaimed person in the property
attached.

section 85 release, sale and restoration of attached property:


1. the expression “at the disposal of the state government” means that the
government exercises absolute control over it. the government may deal with the
property in whatever manner it deems appropriate and convenient.
2. the attached property, unless it is perishable, shall remain with the government
for six months.
3. it will be sold at the expiry of 6 months. in case the property is perishable it may
be disposed of at any appropriate time.
4. where the property is sold, its sale proceeds shall await 2 years and if during this
period the person satisfied the court as to his absence, the money can be restored
to him, otherwise it will be forfeited in favour of government.
5. any person who claims the attached property can enforce his claim by instituting
a civil suit only so long as the property is not sold and is in the hands of the
government
6. Under subsection (3) it shall not be sufficient that the accused person appeared
voluntarily within two years or was apprehended or brought before the court,
instead it must also be proved that he did not abscond or conceal himself for the
purpose of avoiding arrest and also that he had no notice of the proclamation
requiring him to appear before the court within the specified time
7. where it is shown by the accused that he had no knowledge that he was wanted in
a criminal case and that his property had been attached on the ground that he was
absconding and all other accused persons except him were acquitted, it would be
unjust and inequitable to confiscate the attached property of the accused for no

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fault of his. in such circumstances The Court may exercise its inherent powers
under section 482 of the code

Section 86 appeal from order rejecting application for restoration of attached


property

WARRANT IN LIEU OF SUMMON


Section 87 issue of warrant in lieu of, or in addition to, summons

BOND
Section 88 power to take Bond for appearance
section 89 arrest on breach of Bond for appearance:
it was held in Pannalal vs RK Sinha 1967 that this section confers a right of cancellation
of Bond and Rearrest of the accused or witness if he does not appear before the court at
the time when he is bound to appear.

CHAPTER 7 PROCESS TO COMPEL THE PRODUCTION OF THINGS


SUMMONS TO PRODUCE

Section 91 summons to produce document or other things


In state of Gujarat versus Shyamlal 1965 it was held that the term person does not
include an accused person on trial, that is, Section 91 has no application to an accused
person on trial. the words “attend and produce” are rather inapt to cover the case of an
accused person.
the question whether order requiring the production of a document by an accused person
is hit by the prohibition contained in article 23 of the Constitution was considered in
state of Bombay vs Kathi Kalu. if the document is such as is not his statement conveying
his personal knowledge relating to the charge against him, he may be called upon by the
court to produce that document. but if the order relates to a document which contains
any statement of the accused based on his personal knowledge the order for its
production will attract the constitutional bar against testimonial compulsion.
Document or other things: the word thing referred to in this section is a physical object
or material and does not refer to an abstract thing. therefore it cannot be said that issuing
of summons to a person for the purpose of taking his specimen Signature or handwriting
is for the production of any document or a thing contemplated under this section

If a person fails to comply with the summons without any reasonable excuse he will
expose himself to the penal consequences contemplated by section 349 of the code.
Further, intentional omission to produce a document as required by this section will also
be punishable under section 175 of IPC

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Section 92 procedure as to letters and telegrams
in order to pass an order or issue a summon for the production of documents, or thing,
the following two conditions must be satisfied
i. the production of documents or things should be necessary or desirable for the
purposes of Investigation, enquiry or other proceedings and
ii. they must be under the custody of the postal or Telegraph authorities
therefore no order under this section could be passed in respect of a parcel, document or
thing not in the custody of the postal or Telegraph authorities at the time of the passing
of the order but which were expected to be received in future
Note: no Summon shall be issued to accused person to produce any document or thing

Section 166A letter of request to competent authority for investigation in a country


or place outside India: a letter or request must be sent to foreign government for the
purpose of demanding any document or thing required in investigation, enquiry or trial
166B letter of request from a country or place outside India to an authority for
investigation

SEARCH WARRANTS
Search warrant is an order by a magistrate directing any person generally a police officer
not below the rank of a constable to search any place in order to seize any document or
thing
search may be conducted with or without warrant
Search with warrant: there are six situations in which a warrant can be issued for a
search
Those conditions are mentioned under clauses a,b and c of Section 93 and section 94, 95
and 97

Section 93 when search warrant may be issued: A search warrant under this section is
directed to a police officer. issue of search warrant is a Grave matter therefore only courts
are empowered to issue a search warrant. this section will apply not only when an
enquiry is pending but also when an enquiry is about to be made.
constitutionality of section 93 - this section is not unconstitutional because the
provisions relating to issuing a search warrants can neither be said to be in violation of
article 23(3) nor against the rights guaranteed by article 19(1)(f) of the Constitution. it
was held inVS Kuttan Pillai versus Ramakrishnan that search of the premises occupied by
the accused without the accused being compelled to be a party to such search would not
be violative of the Constitutional guarantee enshrined in article 20 clause 3

Section 94 search of place suspected to contain stolen property, forged documents etc
: district magistrate, sub divisional magistrate or Judicial Magistrate First Class may issue
a search warrant to a police officer above the rank of constable to search a place
suspected to contain or store stolen property or forged document

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Section 95 power to declare certain publications forfeited and to issue search
warrants for the same
If the conditions mentioned under this section are not complied with, the high court must
set aside the order of forfeiture. However it is not necessary that before passing an order
of forfeiture the state government should issue a notice to any person or should afford
reasonable opportunity of being heard. legislature has provided specific remedy under
section 96 to an aggrieved person
Constitutionality: this section does not violate the constitutional guarantees contained
under clauses (a), (f) and (g) of the article 19(1) of the constitution and is therefore not
void.
Any person who is aggrieved by this forfeiture May under section 96 make an application
within two months of its forfeiture (date of notification in gazette) in High Court. this
application shall be heard by a bench consisting of minimum three judges or more. in case
where high court shall make a special bench and heard the same.

Section 97 search for persons wrongfully confined: any DM SDM or JM first class may
issue search warrant for production of any person who is wrongfully confined
Where a husband keeps his minor wife at his house, even though against her wishes, he
cannot be said to have been acting wrongly and thereby guilty of wrongful confinement.
an application for the issue of search warrant under section 97 in respect of the wife is
not therefore maintainable, and when the wife is produced before the magistrate in
execution of the search warrant, the wife is to be handed over to the husband
unconditionally and not subject to his furnishing security
Where the person confined is an adult women, who is not willing to go with her husband,
the magistrate cannot compel her to go with him and can set her free to go anywhere at
her will. the magistrate cannot send an adult women even to rescue home against her will

SEARCH WITHOUT WARRANT


There are following situations in which search may be conducted without warrant of
competent authority

Section 103 any magistrate may direct a search to be made in his presence of any place
for the search of which he is competent to issue a search warrant

Section 153 inspection of weight or measures any officer in charge of a police station
May without warrant enter any place within the limits of such station, for the purpose of
inspecting such weight or measures for weigning user or kept there in
This section specifically authorises an officer in charge of a police station to enter any
place within the limits of such station for the purpose of inspecting or searching for any
weights and measures under the circumstances mentioned in the section

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Section 165 search by police officer
An officer in charge of police station or any police officer making investigation into any
offence may search any place or thing without search warrant
it prescribes certain pre conditions which must be fulfilled before search may be made
1. search may be necessary for investigation
2. the offence must be such as the police officer is authorised to investigate, it must
be a cognizable offence
3. reasonable Grounds must exist for believing that the thing required will be found
in a place
4. there would be undue delay in getting the thing in any other way
5. Grounds of belief regarding necessity of search must be previously recorded. if the
grounds are not recorded the search will be illegal

Section 166 when officer-in-charge of police station may require another to issue
search warrant
This Section authorises Officer in charge of a police station to have a search made within
the limits of another station through the officer in charge of that station. in emergent
cases is Search under subsection 3 and 4 may be made by a police officer at a place within
the limits of another station

Read sections 100 and 47(2) CrPC along with it


Also read section 187 of IPC

SECTION 125 ORDER FOR MAINTENANCE OF WIVES CHILDREN AND PARENTS

Section 125 to 128 of the code make provision for maintenance of wives children and
parents. it is natural and fundamental duty of every person to maintain his wife and
children so long as they are not able to maintain themselves. also it is the sacred duty of
a person to maintain his parents also if they are unable to maintain themselves.
provisions of this chapter apply whatever may be the personal law by which the parties
are governed. however in order that a wife can claim maintenance under this section it
must be proved that she was a legally wedded wife under the personal law applicable to
parties. in Mohammed Ahmed Khan vs Shah Bano Begum 1985 the supreme court held
that section 125 was applicable to all irrespective of their religion. clause (b) of section
125(1) contains no words of limitation so as to justify exclusion of Muslim women.
there had been a lot of Hue and cry by Muslim Fundamentalist after this Revolutionary
judgement of the apex court which was truly intended to protect the interest Muslim
women from oppression. consequently the central government was compelled to bring a
legislation nullifying the judgement of the supreme court. therefore Parliament passed a
Muslim women (protection of rights on divorce) Act 1986 providing for other remedies
to Muslim women. this new act allows a Muslim women to avail the remedy available
under section 125 CrPC only if the husband consents to it.

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Section 125 of the code is a measure of Social justice and especially enacted to protect
women and children and falls within the constitutional sweep of article 15(3) reinforced
by article 39

Sufficient means: sufficient means does not mean only visible means such as real
property or a particular employment. it refers to the earning capacity of man. if a man is
healthy and able bodied he is presumed to be possessed with means to support his wife
and children even if he is unemployed.

Neglects or refuses to maintain: refusal to maintain may be expressed or implied. it may


be by words or by conduct. but once it is proved that a person has neglected to maintain
his wife or children the magistrate has power to make order under this section.
maintenance means appropriate food, clothing and lodging

Who can claim maintenance: where the marriage is proved to be illegal wife has no
claim for maintenance. where a Hindu Marriage is proved to be void, but the child born is
proved to be through opposite party, child would be entitled to maintenance although not
living with the father, but the women will not be entitled to maintenance because the
marriage is illegal.
since mutual marriage is permitted amongst Mohammadans, a muta wife may claim
maintenance

The expression wife now includes a divorced wife and includes divorce by mutual
consent. therefore a divorced wife shall be entitled to maintenance so long as she does
not remarry

Section 125 which defines wife as including a divorced wife contains no word of
limitation to justify the exclusion of Muslim women from its scope. therefore a divorced
Muslim women, so long as she has not remarried is a wife for the purpose of section 125

Under subsection 2 of this section, provides that the monthly allowance for the
maintenance, or interim maintenance and expenses of proceedings shall be payable from
the date of the order or if so ordered from the date of application
Proviso 1 proviso 1 to subsection (3) expressly provided that no warrant shall be issued
for the recovery of any amount due under section 125 unless an application is made to
the court within a period of one near from the date on which it becomes due
Proviso 3 section 125(1) provides that whenever an application for the monthly
allowance or interim maintenance or expenses of proceedings under the second proviso
is made it shall be disposed of within 60 days from the date of service of the notice of the
application to such person

Sub Section 4 of section 125, wife shall not be entitled to allowance for the maintenance
or the interim maintenance and expenses of proceeding, as the case may be in the

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following three circumstances and any order already made in that behalf May on proof of
either of them be cancelled by the magistrate
1. if she is living in adultery
2. if without any sufficient reason she refuses to live with her husband
3. if she is living separately by mutual consent

Subsection 5 of section 125 makes provision regarding cancellation of the order of


maintenance passed in favour of the wife under section 125 on certain Grounds. while
subsection 4 disentitles a wife from succeeding to get an order of maintenance, sub
Section 5 provides that if an order for maintenance has already been passed in favour of
the wife it can be subsequently cancelled if it is proved that
1. the wife is living in adultery
2. without sufficient reason she refuses to live with her husband
3. or the wife and husband are living separately by mutual consent

Section 126 procedure


The proper Court to take cognizance of the complaint of the wife is the court within whose
jurisdiction the husband is or resides, or where the wife resides, or where they last
resided together, or where the husband last resided with the mother of the illegitimate
child

Enquiry and recording of evidence where an application for maintenance is made under
section 125 all evidence should be taken in presence of the person from whom
maintenance is claimed or when his personal attendance is dispensed with in the
presence of his lawyer.
Ex Parte proceeding before a magistrate passes an ex Parte order he must be satisfied
that every effort has been made to secure the attendance of the person proceeded against
and that he is wilfully avoiding service or wilfully neglecting to attend the court.

Section 127 alteration in allowance


this section empowers the magistrate to decrease or increase the amount of maintenance
or interim maintenance due to change in the circumstances of the person receiving or
paying the amount
Subsection (2 )the magistrate May in consequence of a decision of a competent Civil
Court, cancel or vary any order made under section 125. the order of cancellation of
maintenance operates prospectively and not retrospectively
Subsection 3 in Mohammed Ahmed Khan versus Shah Bano Begum it was held that
since Mehar according to Muslim law was not an amount payable by husband to wife on
divorce as required by clause B of subsection 3 of section 127, that amount could not be
taken into consideration while deciding an application under section 125 of the CRPC. the
Muslim women protection of rights on divorce Act 1986 was passed to nullify the ratio of
the above case. after passing of this act, under section 5 of this Act, if on the first date of
hearing of the application under Section 3(2) of that act, the divorced woman and her

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husband declare either jointly or separately that they would prefer to be governed by
provisions of section 125 to 128 of the CrPC then only the court can dispose of their
application in accordance with the provisions of the CrPC. in case there is no such
declaration their application cannot be disposed of Under The CRPC

Clause (c) of subsection 3 of section 127 provides that where the woman has obtained a
divorce from husband and she had also surrendered her rights to maintenance or interim
maintenance as the case may be after her divorce the magistrate shall, if he is satisfied
about these events, cancel his order from the date of that order

Important Judgments
Daniel latifi vs Union of India
Shayara Bano vs union of India

Vijay Manohar Arbat Vs. Kashi Rao Raja Ram Sawai, SC held that a married daughter with
independent sufficient means of her own is liable to maintain her father and mother
under section 125 CRPC.

Khemchand Om Pakash vs. State of Gujrat, SC held that second wife of a person whose
husband’s first wife is alive cannot claim maintenance from her husband under section
125 CRPC.

Savitaben Somabhai Bhatia vs. State of Gujrat, SC held that only a legally wedded wife can
claim maintenance under section 125 CRPC.

One of the main purpose of administration of criminal justice is prevention of crime. these
preventive steps may either be taken by the magistrate or by the police. therefore
preventive jurisdiction is classified into magisterial action and police action. chapter VIII
to X of this code deal with the preventive jurisdiction of magistrates and Chapter XI deals
with preventive jurisdiction of the police. magisterial jurisdiction is executive-cum-
judicial that is Quasi judicial and quasi executive but police jurisdiction is purely
executive.
1. Security proceedings are dealt under section 106-124
2. provisions relating to dispersal of unlawful assembly is from 129 to 132
3. provisions for removal of public nuisance 133-143
4. urgent cases of nuisance or apprehended danger section 144
5. precautionary measures in respect of disputes as to immovable property 145 to
148
6. preventive action of the police section 149 - 153

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CHAPTER 8 SECURITY FOR KEEPING THE PEACE AND FOR GOOD BEHAVIOUR

Section 106 security for keeping the peace on conviction: the purpose of an order for
security is not to punish but to prevent future commission of offences. This section comes
into operation when a person is accused and convicted of any offence enumerated in
subsection (2). the order envisaged under this section May only be passed at the time of
passing of sentence. where an order requiring the convicted person to execute a bond has
not been passed at the time of passing of the sentence, it cannot thereafter be passed
under this section. but proceeding can be started under section 107.
no appeal will lie against an order to furnish security under this section
Court of Session, Court of magistrate of the first class, appellate Court or revisional
Court has power under this section. . duration of Bond shall not exceed 3 years with
or without surety

Section 107 security for keeping the peace in other cases: section 107 is aimed at
persons who cause a reasonable apprehension of conduct likely to lead to a breach of the
peace or a disturbance of public tranquility. it is an instance of Preventive justice which
the courts are intended to administer. Madhu Limaye vs SDM monghyr 1971
In the case of Mithya versus state of Rajasthan 1987 it was held that the magistrate has
power under section 107 to bound down the persons for keeping peace for period not
exceeding one year
The magistrate can in proper case convert proceedings under section 107 into one under
section 145 of the code.
Executive magistrate has power under the section to execute a bond with or without
surity for keeping the peace for period not exceeding one year.

Section 108 security for good behaviour from persons disseminating seditious
matters: the person to be proceeded under this section must be one which has been
disseminating seditious matter and from whom there would be a of a repetition of the
offence.
Executive magistrate has power under the section to execute a bond with or without
surety for a period not exceeding one year.

Section 109 security for good behaviour from suspected persons: the words conceal
his presence are of a very wide import. they cover concealment of bodily presence in a
house or Grove or under a bridge or by wearing a mask or covering face with anything or
disguising oneself by a uniform or by any other manner Abdul Gaffar versus Emperor
1943
Executive magistrate has power under the section to executive Bond for a period not
exceeding one year

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Section 110 security for good behaviour from habitual offenders: proceedings under
this section are taken with a view to ensure good behaviour in future and not to punish
for offences committed in the past
It has to be noted that this section applies to habitual offenders and not to those who
casually commit a crime. mere proof that an accused person has been previously guilty of
acts of violence will not justify a magistrate in ordering him to furnish security under this
section. habit is to be proved by an aggregate of acts. it implies a tendency or capacity
resulting from frequent repetition of the same acts
Executive magistrate has power under this section to execute a bond with sureties for a
period not exceeding three years

Section 111 order to be made: section 111 provides for passing of a preliminary order
when magistrate acting under section 107 108 109 or 110 deems it necessary to require
any person to show Cause under any of these sections. he shall make an order in writing
1. setting forth the substance of the information received
2. the amount of the bond to be executed
3. the term for which it is to be in force
4. the number, character and class of securities (if any) required

The purpose of giving substance of the information to be given in the notice is to afford a
reasonable opportunity to accused to come prepared to meet his allegations
Amount of Bond - in fixing the amount of Bond the magistrate must consider the status
of the person concerned and should demand such a sum for which there is a fair
probability to find security. Since in default of furnishing the bond so required a person
may be imprisoned. it would be reasonable and just that “he should be afforded a fair
chance of complying with the required condition of security”.

Section 116 enquiry as to truth of information : after a notice and order has been served
upon a person an enquiry shall be held under the section. where a person is called upon
to furnish security for keeping the peace or for giving security for good behaviour the
procedure to be followed in enquiry will be as is prescribed for conducting trial and
recording of evidence in summons cases

Section 117 order to give security: threefold safeguards has been provided
1. the terms and conditions cannot be more onerous than those fixed in the notice
under section 111
2. the amount of Bond should be reasonable
3. if the person is a minor, the bond shall be executed by his surities

Section 119 commencement of period for which security is required: if an order


requiring security is made under section 106 or section 117, the period for which such
security is required shall commence on the expiration of such sentence and in other cases

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such period shall commence on the date of such order, unless the magistrate fixes a later
date

CHAPTER X
MAINTENANCE OF PUBLIC ORDER AND TRANQUILITY

UNLAWFUL ASSEMBLIES

section 129 dispersal of assembly by use of civil force


Section 129 deals with dispersal of unlawful assembly or any assembly of five or more
persons likely to cause disturbance of the public peace. even a religious assembly
congregated in the public Street so as to draw crowd of people is likely to cause a
disturbance of the public peace.
Any executive magistrate or officer in charge of a police station or any police officer not
below the rank of sub inspector may command any unlawful assembly to disperse

Section 130 use of armed force to disperse assembly it was held in state of Karnataka
versus padmanabha beliya that when district armed Reserve Police fired without lawful
order from the authorities on the members of an unlawful assembly and caused the death
of one person the state government would be vicariously liable and it will have to pay
compensation to the dependents of the deceased
The executive magistrate of the highest rank who is present may cause it to be dispersed
by the armed forces

Section 131 power of certain Armed force officers to disperse assembly when the
public security is manifestly endangered by any such assembly and no executive
magistrate can be communicated with, any commissioned or gazetted officer of the
armed forces may disperse such assembly with the help of the armed forces under his
command. but if, while he is acting under this section, it becomes practicable for him to
communicate with an executive magistrate he shall do so and shall thenceforward obey
the instructions of the magistrate

PUBLIC NUISANCE

Section 133 conditional order for removal of nuisance the power under section 133
can be exercised on receipt of a police report or other report as is in the six circumstances
as stated
The section deals with cases of public nuisance and not private nuisance. Ordinarily, no
action under section 133 can be taken where the obstruction or nuisance has been in
existence for a long period but there is no legal bar to action being taken in such
circumstances if there exists a genuine emergency to get the encroachment or nuisance
removed under this section. therefore if the obstruction has been in exercise for a long

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period without any change in circumstances, the removal of such obstruction cannot be
said be urgent and the remedy must be sought in civil courts
no order duly made by a magistrate under this section shall be called in question in any
Civil Court

Section 134 service or notification of order the order shall if practicable be served on
the person against whom it is made, in the manner herein provided for the service of
summons. if such order cannot be so served, it shall be notified by proclamation,
published in such manner as the state government may, by rules, direct and a copy
thereof shall be stuck up at such place or places as may be fittest for conveying the
information to such person

Section 135 person to whom order is addressed to obey or Show cause under section
135 two alternatives are open to a person who is served with a notice. First, he may
perform within the time and in the manner specified in the order the act directed; or
secondly, he may appear in accordance with such order and show Cause against it

Section 136 consequences of his failing to do so if such person does not perform such
act or appear and show cause he shall be liable to the penalty prescribed in that behalf in
section 188 of the IPC and the Order shall be made absolute

Section 137 procedure where existence of public right is denied under this section the
party against whom a provisional order is made shall appear before the magistrate and
deny the existence of a public right. he shall then produce some reliable evidence in
support of such denial. the evidence so produced shall be legal evidence and support the
denial of public right. if the above conditions are fulfilled, the magistrate cannot proceed
further and must stay the proceedings until the matter of existence of such right has been
decided by a competent court
If the person to whom an order under section 133 is made denies the existence of a public
right, the magistrate must hold an enquiry under section 137 before initiating
proceedings under section 138

Section 138 procedure where he appears to show Cause under this section the
magistrate is bound to take evidence as in a summons case. if on taking evidence the
magistrate is satisfied that it is reasonable and proper he can make the conditional order
absolute otherwise further proceedings may be stopped

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URGENT CASES OF NUISANCE OR APPREHENDED DANGER

Section 144 power to issue order in urgent cases of nuisance or apprehended danger
under this section DM SDM or any other executive magistrate is empowered to release an
order when immediate prevention for speedy remedy is desirable
In Madhu limaye vs SDM monghyr 1971 it was said that the gist of action under the
section is the urgency of the situation, its efficacy in the likelihood of being able to prevent
some harmful occurrences. as it is possible to act absolutely and even ex-parte the
emergency must be sudden and consequences sufficiently grave.
Under this section the magistrate may proceed only when immediate prevention
or speedy remedy is desirable and he must be satisfied that there is danger to human life
or disturbance of public tranquility or riot or affray.
Ex Parte order: under subsection (2) the magistrate can pass an ex Parte order in cases
of emergency or in cases where the circumstances do not permit the serving in due time
of a notice upon the person against whom the order is directed
Subsection 3 is an exception to the general rule that the order shall be directed to a
particular person. order can be directed to the public generally when frequenting or
visiting a particular place, such as market or a pak. a General order may be necessary
when the number of persons is so large that distinction between them and the general
public cannot be made without the risk mentioned in this section. it was held in Bal
Bharati Nursery School versus district magistrate Allahabad 1990
Subsection 4: orders under this section are merely temporary order in urgent cases of
apprehended danger and cannot remain in Force for more than two months, unless the
period is extended by the state government. successive promulgation of Orders under
this section to avoid a decision of the dispute is an unjustifiable exercise of power by the
magistrate
Where it is apprehended that danger to the public peace may remain after the expiry of
two months from the date of the order, steps should be taken in due course to obtain an
order of the government under proviso to subsection 4, or recourse should be had to the
provisions of part D of the chapter
The proviso to Section 144 (4) which gives the state government, jurisdiction to extend
the prohibitory order for a maximum period of 6 months
Order under section 144 CrPC is amenable to writ jurisdiction on violation of any
fundamental rights Ghulam Abbas versus state of UP 1981
Madhu limayi vs SDM monghyr section 144 of the CrPC is constitutionally valid
Madhu limayi vs SDM monghyr provisions of Chapter 8 of CrPC being in Public
Interest are not violative of article 19 of the Constitution of India

Comparison of section 144 and 133


kacharu Lal Bhagirath Agarwal 2004 section 133 and 144 was compared. it was held
that a comparison between the provisions of section 133 and 144 of the code shows while
the former is more specific the latter is more general. the provisions under section 133
are more in the nature of civil proceedings than of criminal nature. sometimes there is a

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confusion between section 133 and 144 of the code while the latter is more general
provision the former is more specific. while the order under section 133 is conditional,
the order under section 144 is absolute

Distinction between section 144 and 145


the following distinctions may be pointed out
1. section 144 is wider and more general than section 145, an order under this
section can be made under various circumstances including a danger of a breach
of the peace. the scope of section 145 is limited and it applies only when there is a
danger of a breach of the peace
2. section 144 is discretionary whereas section 145 is mandatory
3. the scope of enquiry under section 144 is not as wide as that of section 145. section
145 provides for a thorough enquiry into the dispute as to possession of the
parties which tends to a breach of the peace
4. when special conditions of section 145 are fulfilled section 144 may be turned into
section 145. such as when the magistrate finds that there is a real dispute,
concerning land or water, tending to a breach of the peace, he is bound to Institute
a proceeding under section 145 and enquiry into the possession of the parties
irrespective of any order that he might have ordinarily passed under section 144.
but section 145 cannot in any circumstances be changed into section 144

Section 144A power to prohibit carrying arms in procession or mass drill or mass
training with arms this section was inserted by CrPC Amendment Act 2005. under this
section district magistrate may by public notice or by order prohibit in any area within
the local limits of his jurisdiction, the carrying of Arms in any procession or the
organisation or holding of any mass drill or mass training with arms in any public place

DISPUTES AS TO IMMOVABLE PROPERTY

Section 145 procedure where dispute concerning land or water is likely to cause
breach of peace: under this section executive magistrate shall make an order in writing
when he is satisfied from a report of a Police Officer that a dispute is likely to cause a
breach of the peace within his local jurisdiction concerning any land or water or the
boundaries thereof
The object of this section is to prevent breach of peace by bringing to an end by a
summary process disputes relating to property. the action taken under this section is not
punitive but preventive. orders under this section are police Orders and do not concern
the question of title. the order of magistrate under this section is only a temporary order
and is operative only so long as the rights of the parties are not determined by a Civil
Court.
Land or water: the following disputes are held to be disputes relating to land or water
1. disputes regarding the right to collect the rent in respect of immovable property

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2. dispute relating to possession of standing crops and crops harvested but still on
land
3. disputes as to trees growing on the land
4. dispute as to possession of a Bund
5. dispute as to posession of a temple
6. dispute as to mining and boring rights
7. dispute as to right to ferry
8. dispute as to right to fishery
9. dispute as to channel rights when the channel is used for irrigation purposes
10. disputes relating to a mill
11. disputes relating to other produce of land

The magistrate may proceed under sub section 107 or Section 145 or both according to
the circumstances of the case sub section 10
Proceedings under section 145 and civil proceedings there is no bar to filing criminal
proceedings under section 145 regarding the same disputed property for which civil
proceedings are pending. however it was held in Venkata Krishna versus state of Tamil
Nadu 1989 that if the Civil Court decides the question of posession it would be binding
on the criminal court and the magistrate cannot proceed under section 145
Section 144 and 145: the scope of section 144 is wider and more general than section
145. the scope of section 145 is limited and applies only when there is a danger of a breach
of the peace, whereas an order under section 144 can be passed under various
circumstances including a danger of breach of peace. section 144 is discretionary and
section 145 is mandatory

Section 147 dispute concerning right of use of land or water in a proceeding under
section 145 the magistrate has to find whether the right of user which has been claimed
in the property exists, and then he has to find whether such right has been exercised
within a period of three months next before the Institution of inquiry. where the rights of
the parties have been already determined by a court of law, magistrate cannot take
proceedings under this section.
disputes relating to right of user of land : the expression land or water is not confined
to private property only and is wide enough to include public property such as roads
streets and Pathways. this section applies only to cases where the dispute relates to the
right of user of land or water. the right to worship in a particular Temple must involve
the right to use that particular place for a particular purpose or in a particular manner. to
deny such right to worship is denial of the right to use such place or Temple. therefore it
is a dispute as to user of land

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PREVENTIVE ACTION OF THE POLICE

section 149 police to prevent cognizable offence: every police officer May interpose for
the purpose of preventing, and shall, to the best of his ability, to prevent, the commission
of any cognizable offence

Section 151 arrest to prevent the commission of cognizable offence the police cannot
arrest a person under section 151 Merely on an apprehension of the breach of peace.
what is required under this section is that the officer concerned must know that the
person to be arrested is designing to commit a cognizable offence. an apprehension that
he may commit an offence is not sufficient. section 151 Merely authorises arrest and there
can be no detention under it. it was held in Ahmed Nur Mohammed Bhati vs State of
Gujarat 2005 that conditions for exercise of power of arrest and limitation on period of
detention are expressly laid down in section 151 of CRPC. statutory guidelines are
provided and the power cannot be abused and it was held not to be unreasonable or
arbitrary

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DREAM.
BELIEVE.
DO.
REPEAT.

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