CR PC
CR PC
CR PC
PROCEDURE
CODE
Notes for Competitive Exams
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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.
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.
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
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.
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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.
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.
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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
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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
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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.
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.
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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.
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 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
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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 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
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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
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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
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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
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 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
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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 71 power to direct security to be taken: this Section provides for issue of a
bailable warrant
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 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
PROCLAMATION
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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 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.
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fault of his. in such circumstances The Court may exercise its inherent powers
under section 482 of the code
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.
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
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
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
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.
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
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.
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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
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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 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
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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
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
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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