Q.

Write a note on constitution of criminal courts under the provisions of

the Code of criminal Procedure. Whether the High court and the Supreme
Court can be established under the Code while they are also functioning
as criminal courts?

Ans- Besides the High Court and the courts constituted under any law
other than the Code of Criminal Procedure, there are four classes of
Criminal Courts in India, namely : (I) Courts of Session, (2)
Judicial Magistrate of the First Class, and in any metropolitan area,
Metropolitan Magistrates, (3) Judicial Magistrate of the Second Class : and
(4) Executive Magistrate (Section 6).

Court of Session:
Under Section 9 of the Code the State Government is required to establish
a court of session for every session’s division, which shall be presided over
by a Judge to be appointed by the High Court. The High Court may also
appoint (Additional Sessions Judges and Assistant Sessions) Judges to
exercise jurisdiction in a court of session.
Courts of Judicial Magistrates:
In every district (not being a metropolitan area), there shall be established
as many courts of Judicial Magistrates of the first class and of the second
class and at such places, as the State Government may, after consultation
with the High Court, by notification, specify.

The State Government may, after consultation with the High Court
establish, for any local area, one or more special courts of Judicial
Magistrate of the first class or of the second class to try any particular case
or particular class of cases, and where any such special court is
established, no other court of Magistrate in the local area shall have
jurisdiction to try any case or class of cases for the trial of which such
special court of judicial Magistrate has been established.

The presiding officers of such courts shall be appointed by the High Court.
The High Court may, whenever it appears to be expedient or necessary,
confer the powers of a Judicial Magistrate of the first class or of the second
class on any member of the Judicial Service of the State, functioning as a
Judge in a civil court. [Section 11]
Chief Judicial Magistrates and Additional Chief Judicial Magistrates:
In every district (not being a metropolitan area) the High Court shall
appoint Judicial Magistrate of the first class to be 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 four as the High Court may direct.

The High Court may designate any Judicial Magistrate of the first class in
any sub-division as the Sub-divisional Judicial Magistrate and relieve him
of the responsibilities specified in this section as occasion requires.

Subject to the general control of the Chief Judicial Magistrate, every Sub-
divisional Judicial Magistrate shall also have and exercise such powers of
supervision and control over the work of the Judicial Magistrate (other than
Additional Chief Judicial Magistrate) in the sub-division as the High Court
may, by general or special order, specify in this behalf. (Section 12).
Special Judicial Magistrate:
The High Court may, if requested by the Central Government so to do,
confer upon any person who holds or has held any post under the
Government all or any of the powers conferred or conferrable by or under
this Code on a Judicial Magistrate of the first class or of the second class,
in respect to particular cases or to particular classes of cases, in any local
area, not being a metropolitan area provided that no such power shall be
conferred on a person unless he possesses such qualification or
experience in relation to legal affairs as the High Court may by rules
specify.

Such Magistrates shall be called Special Judicial Magistrates and shall be

appointed for such term, not exceeding one year at a time as the High
Court may, by general or special order, direct. The High Court may
empower a Special Judicial Magistrate to exercise the powers of a
Metropolitan Magistrate in relation to any metropolitan area outside his
local jurisdiction (Section 13).
Courts of Metropolitan Magistrate:
(1) In every metropolitan area, there shall be established as many Courts
of Metropolitan Magistrate, and at such places as the State Government,
after consultation with the High Court, by notification, specify.

The presiding officers of such Courts shall be appointed by the High Court.
The jurisdiction and powers of every Metropolitan Magistrate shall extend
throughout the metropolitan area. (Section 16)
Chief Metropolitan Magistrate and Additional Chief Metropolitan
Magistrate:
The High Court shall, in relation to every metropolitan area within its local
jurisdiction, appoint Metropolitan Magistrate to be the Chief Metropolitan
Magistrate for such metropolitan area. (Section 17).
Special Metropolitan Magistrate:
The High Court may if requested by the Central or State Government so to
do, confer upon any person who holds or has held any post under the
Government, all or any of the powers conferred or conferrable by or under
this Code on a Metropolitan Magistrate, in respect to particular cases or to
particular classes of cases, in any metropolitan area within its local
jurisdiction:

Provided that no such power shall be conferred on a person unless he

possesses such qualification or experience in relation to legal affairs as the
High Court may by rules specify. Such Magistrate shall be called Special
Metropolitan Magistrates and shall be appointed for such term, not
exceeding one year at a time, as the High Court may direct.

The High Court or the State Government, as the case may be, may
empower any Special Metropolitan Magistrate to exercise in any local area
outside the metropolitan area, the powers of a Judicial Magistrate of the
first class (Section 18).

Executive Magistrate:
(1) In every district and in every metropolitan area, the State Government
may appoint as many persons as it thinks fit to be Executive Magistrates
and shall appoint one of them to be the District Magistrate.

The State Government may appoint any Executive Magistrate to be an

Additional District Magistrate and such Magistrate shall have such of the
powers of a District Magistrate under this Code or under any other law for
the time being in force as may be directed by the State Government
(Section 20).
Special Executive Magistrates:
The State Government may appoint for such terms as it may think fit.
Executive Magistrates, to be known as Special Executive Magistrates, for
particular areas or for the performance of particular functions and confer
on such Special Executive Magistrates such of the powers as are
conferrable under this Code on Executive Magistrates, as it may deem fit.
(Section 21).

The maximum sentences which may be passed by different Courts are

noted below:
Supreme Court:
It is the final Court of Appeal which can pass any sentence in accordance
with law.
High Court:
Any sentence authorized by law. [Section 28) (1)].
Sessions Judge and Additional Sessions Judge:
Any sentence authorized by law, but a sentence of death passed by them
shall be subject to confirmation by the High Court. [Section 28 (2)].
Assistant Sessions Judge:
Any sentence authorized by law, except a sentence of death or of
imprisonment for life or of imprisonment for a term exceeding ten years
[Section 28 (3)].
Chief Judicial Magistrate and Chief Metropolitan Magistrate:
Any sentence authorized by law except a sentence of death or of
imprisonment for life or of imprisonment for a term exceeding seven years.
[Section 29 (I)]
First Class Magistrate and Metropolitan Magistrate:
May pass a sentence of imprisonment for a term not exceeding three
years, or of fine not exceeding Rs. 10,000, or of both
Second class Magistrates:
May pass a sentence of imprisonment for a term not exceeding one year,
or of fine not exceeding Rs. 5,000, or of both.

Q. What is FIR? What is the evidentiary value of FIR? Explain

Ans- The words ‘first information report’ have a legal import. Nowhere in
Cr.P.C. have these words been used. Section 154 of Cr.P.C. gives the
concept of F.I.R. F.I.R. is the earliest report made to the police officer with
a view to his taking action in the matter.
Object of F.I.R.:
The principle object of the F.I.R. from the point of view of the informant is
to set the criminal law in motion and from the point of view of the
investigating authorities is to obtain information about the alleged criminal
activity so as to be able to take suitable steps to trace and bring to book
the guilty.
The purpose of recording the F.I.R. is to put into writing the statement of
the informant before his memory fails or before he gets time and
opportunity to embellish it. But the F.I.R. is not a condition precedent to the
setting in motion of a criminal investigation.
If information is received and recorded in accordance with Section 154,
such F.I.R. becomes the basis of the case set up by the informant, even
though it may not be admissible as substantive evidence, and it assumes
importance if promptly made.
Evidentiary Value of F.I.R.
F.I.R. is a vital and important piece of evidence as it contains the first
version of the incident. However, it cannot be treated as substantive piece
of evidence as it is neither recorded on oath nor tested by cross
examination. But when the informant is called as witness in the Court his
former statement (F.I.R.) can be used both for corroborating and
contradicting his testimony as per Section 157, Section 161 and Section
145 of the Indian Evidence Act. But it cannot be used as evidence against
the informant as it is hit by Section 25 of the Evidence Act.
F.I.R. could be used for corroborating the informant as per Section
157 and Section 161 of the Evidence Act but it could not be used for
corroborating other prosecution witnesses or prosecution case in general.
F.I.R. could be used for contradicting the informant as per Section 145 of
the Evidence Act but for that firstly, the attention of the informant must be
drawn to the relevant portions where the contradiction occurs. Secondly,
explanation should be invited and only then defence can rely upon the
contradiction.
If F.I.R. is made by accused himself then it could be used as per the
normal rules of evidence unless it is in the nature of a confession, as then
it will be hit by Section 25 of the Evidence Act. The position of such case
has been discussed in detail in Aghnoo Nagesia versus State of Bihar AIR
1966 SC 119:-
1. Such an F.I.R. is not inadmissible in evidence
2. If the information is non-confessional then it could be admissible
under Section 21
3. If it is confessional in nature then it will become inadmissible except the
portion which will come under Section 27 of the Evidence Act.
4. In this case, Supreme Court for the first time clarified that F.I.R. will be
admissible in evidence as a whole not in parts but with a rider that in case
the non-confessional part has no connection with the confessional part
then the former will be relevant under Section 18 and Section 21.
F.I.R. by an accused cannot be treated as evidence against the co-
accused.
F.I.R. can be used by the informant to refresh his memory under Section
159 of the Evidence Act.
F.I.R. can be used for impeaching the credit of the informant under Section
155 of the Evidence Act.
It can also be used for proving the conduct of the informant as per Section
8 of the Evidence Act.
F.I.R. can be used to identify the accused, witnesses, place and time of
occurrence as per Section 9 of Evidence Act.
In certain circumstances, it could also be used as per Section 11 of the
Evidence Act.
F.I.R. cannot be used as a primary evidence of the truth of its contents as
it cannot be substituted for evidence given on oath. Therefore, F.I.R. itself
cannot lead to the conviction of the accused. But in certain circumstances
F.I.R. becomes substantive piece of evidence:
1. Under Section 32 of the Evidence Act
2. Under Section 6 of the Evidence Act as res-gestae
3. Under Section 160 of the Evidence Act.
On the basis of the above, it can be concluded that normally F.I.R. is not a
substantive piece of evidence but is a public document as per Section
74 of the Evidence Act and its certified copy could be given as per Section
79 of the Evidence Act. However, it becomes a substantive piece of
evidence under certain circumstances but S.H.O. cannot give copy of
F.I.R. to the accused unless the police report is ready or else he would be
liable under Section 27 of the Police Act, 1861.

Q. What is Bail? What are the provisions in respect of bail? Which court is
competent to grant anticipatory bail?

Ans- Introduction- The concept of bail is not new. Basic Philosophy behind
the concept of bail is that accused should be released from the custody of
law enforcing agency into the custody of sureties. This is an interim order
which can be withdrawn by the court at any stage according to
circumstances.

Relevant Provisions
Section 436, 437, 438 and 439 of Cr.P.C is a relevant provision.

Meaning of Bail
Bail means the security, which court requires for release, of some
accused. It is, in fact, transfer of accused from judicial custody to sureties
with this condition that sureties will remain bound for future appearance of
accused in court whenever accused appearance will be required.

Kinds of Bail
Bail is of the following three kinds.

i. Bail After Arrest / Post Arrest Bail

It is a bail which is granted to the accused person, after his arrest, both in
bailable and non-bailable offence. When the accused has been arrested by
the law enforcing agency, bail may be generated to him under section 437
of Cr.P.C.

ii. Bail before Arrest / Pre-Arrest bail

Bail before arrest is a bail which is granted in a case where court feels
perhaps accused has falsely involved in case and he is likely to suffer
irreparable injury to his dignity, honor, or reputation by his arrest. This bail
is given under section 438 of the cr. P. C which is also known as
anticipatory bail.
iii. Bail after Conviction
It is granted when after conviction of accused, the appeal has been
accepted for hearing and the court observes that there are grounds for the
release of the accused, therefore, it accepts the bail petition and allows
bail.
Kinds of Bail by Nature

By nature, bail may be divided into following two kinds.

i. Interim Bail
It is a bail which is granted by the court without hearing the prosecution for
a specified period of time.

ii. Permanent or Confirmed bail

It is a bail which is granted by the court after hearing both the parties, i.e.,
petitioner and prosecution.
Pre-conditions or Essential ingredients of Confirmation of Pre-arrest /
before arrest Bail
Following confirmation of pre-arrest / before arrest bail, following are pre-
conditions or essential ingredients.

i. Ulterior Movies
Arrest of petitioner should be for some ulterior motives. In fact, there
should be doubt that motive for involvement of accused in some criminal
case in not pure. If ulterior motive is proved, pre-arrest bail can be
confirmed. If it is also proved that apprehension of imminent arrest,
humiliation and unjustified harassment of accused due to some ulterior
motive or mala fide on part of authorities or other influential persons.

ii. Heinousness of offence

Heinousness of offence is of no importance as far as granting of pre-arrest
bail is concerned. In fact, pre-arrest bail cannot be refused due to
heinousness of offence.

iii. Commission of offence

Pre-arrest bail can be confirmed when investigation is completed and it
shows that accused has not committed offence.

iv. Physical Surrender

Petitioner / accused should physically surrender himself before court. It
means that no pre-arrest bail can be granted to absconder.
v. Fit case
Case of petitioner should be fit case so that court can exercise its
discretion of confirmation of bail. If case of petitioner is fit case for court to
exercise its discretion, pre-arrest bail can be granted.

vi. Bail Bond

Pre-arrest bail can be confirmed when accused is ready to submit bail
bond is prescribed manner under Criminal Procedure Code.
Pre-conditions or Essential Ingredients of confirmation Post-arrest / After-
arrest bail
For confirmation of post-arrest (after arrest) bail, following are pre-
conditions or essential ingredients.

i. Prohibitory Clause
According to Section No. 437 of Criminal Procedure Code, post-arrest bail
cannot be granted when there exists reasonable grounds for believing that
petitioner has been guilty of that offence, which is punishable with death or
imprisonment for life or imprisonment for ten years. It reveals that pre-
condition or essential ingredient for confirmation of post-arrest bail is that
alleged offence should not fall within prohibitory clause of Section No. 437
of Criminal Procedure code.

ii. No Reasonable Ground for commission of Non-bailable offence

Another pre-condition or essential ingredient for confirmation of post-arrest
bail is that there should be no reasonable grounds for believing that
accused has committed non-bailable offence.

iii. Sufficient grounds for further Inquiry

For confirmation of post-arrest bail, there should also be sufficient grounds
for further inquiry into guilt of accused.

iv. Bail Bond

Post-arrest bail can be confirmed when accused is ready to submit bail
bond in prescribed manner under Criminal Procedure Code.

8. Ground for granting of bail in Non-bailable offence

Following are grounds upon which bail can be taken or granted in non-
bailable offence

i. Personal enmity
When it is proved that there exists personal enmity between accused and
complainant, bail can be taken in non-bailable offence.
ii. Rule of Consistency
If co-accused of some non-bailable offence has already been granted bail,
bail of petitioner / other co-accused can be taken. It reveals that rules of
consistency can be ground for granting bail.

iii. Child or Woman

when accused / petitioner is child or woman, bail can be taken in non-
bailable offence.

iv. Sick or Infirm Person

When accused / petitioner is sick or infirm person, bail can be granted in
non-bailable offence.

v. Insufficient evidence
If insufficient evidence is available against commission of alleged non-
bailable offence, bail can be taken.

vi. Doubt or Recovery

When facts and circumstances of criminal case of non-bailable offence are
like those that such case become doubtful or nothing is recovered from
accused, bail taken in non-bailable offence.

vii. Delay in Registration of FIR or Trial

When there is delay in registration of FIR and no sufficient ground is
present for such delay and delay in trail, bail can be granted in bailable
offence.

Conclusion
To conclude, it can be started that bail in case of bailable offence is matter
of right and it should be granted in cases of bailable offence. However, bail
in case of non-bailable offence is not a matter of right. Rather it is a
statutory concession, which court can grant in exceptional circumstances
where pre-conditions or essential ingredients for granting of bail exist.

Q. Explain the procedure of the trial of a criminal offence in the court of

sessions judge as laid down in the Cr. P. C.

Ans: Section 225 Cr.P.C. to Section 237 Cr.P.C. are concerned with the
procedure of trials held before the Court of Sessions. Following is the
general outline of various procedures/steps to be followed in a case
exclusively triable by a Court of Sessions.
a. The public Prosecutor shall conduct the prosecution. (Section 225
Cr.P.C.)

b. When the accused appears or he is brought before the court, the Public
Prosecutor shall open the case and shall describe the charge against him
and also shall state the evidences against him. (Section 226 Cr.P.C.)

c. After considering the case record and hearing the submission of the
accused as well as the prosecution if the Judge finds no sufficient ground
to proceed further, the accused shall be discharge. (Section 227 Cr.P.C.)

d. But if the Judge holds the opinion to proceed with the case and
presumed that the offence is not exclusively triable by the Court of
sessions, he may frame a charge against the accused and transfer the
case for trial to the Chief Judicial Magistrate or any other competent
Judicial Magistrate. If the Judge finds the offence is exclusively triable by
his court, he shall frame a charge against the accused. (Section 228
Cr.P.C.)

After framing the charge it shall read over and explained to the accused
and he shall be asked whether he pleads guilty or claims to be tried.
(Section 228 Cr.P.C.)

e. If the accused pleads guilty the Judge shall convict him.(Section 229
Cr.P.C.)

f. If the accused does not plead guilty and claims to be tried the Judge
shall fix a date for examination of witnesses. (Section 230 Cr.P.C.)

g. On the date so fixed, the Judge shall take such evidences as may be
produced in support of the prosecution. (Section 231 Cr.P.C.)

h. If, after taking the evidence examining the accused and hearing the
prosecution and the defence on the point, the Judge considers that there is
no evidence against the accused that has committed the offence, the
Judge shall acquit the accused. (Section 232 Cr.P.C.)

i. If the accused is not acquitted under section 232 Cr.P.C., he shall be

called upon for his defence. (Section 233 Cr.P.C.)
j. When the examination of the witness (if any) for the defence is complete,
the Public Prosecutor shall put forward his argument and the accused shall
be entitled to reply. (Section 234 Cr.P.C.)

k. After hearing arguments, the Judge shall give a judgment in the case.
(Section 235 Cr.P.C.)

Q. What is the procedure adopted by the Magistrate of taking cognizance

of an offence on complaint?
Ans- Any Magistrate of the first class and any magistrate of the second
class may take cognizance of any offense. Section 190- 199 of the code
describes the methods by which, and the limitations subject to which,
various criminal courts are entitled to take cognizance of offenses. Section
190(1) provides that, subject to the provisions of S. 195-199, any
magistrate of the first class and any magistrate of the second class
specially empowered in this behalf, may take cognizance of any offenses-
a) Upon receiving a complaint of facts which constitute such an offense.
b) Upon a police report of such facts.
c) Upon information received from any person other than a police
officer, or upon his own knowledge, that such an offense has been
committed.
S. 190(2) – The Chief Judicial Magistrate may specially empower any
magistrate of the second class as mentioned to take cognizance of such
offences as are within his competence to inquire into or try.
The term complaint has been defined in S. 2(d) as meaning: ‘any
allegation made orally or in writing to a magistrate, with a view to his taking
action under this code that some person, whether known or unknown, has
committed an offence, but does not include a police report.’
It also explain that A report made by a police officer in a case which
disclose, after investigation, the commission of a non-cognizable offense
shall be deemed to be a complaint; and the police officer by whom such
report is made shall be deemed to be the complaint.
It has been explained that the magistrate while taking cognizance of an
offense, is becoming aware of the commission of that offense and that
awareness continues. So a magistrate would be entitled to take
cognizance of a complaint case after having taken cognizance of the case
on police report. It has also been opined that even if this involved taking
cognizance twice, there is no harm as no provision in the Code prohibits it.
[8] However it is settled that a court can take cognizance of offense only
once and after that it becomes functus officio.
If cognizance is to be taken on a police report under S. 190(1)(b) the report
must be one as defined in S. 2(r). That is the report must be one forwarded
by a police officer to a magistrate under S. 173(2) and not any other report
like preliminary report or an incomplete challan. And it is for the magistrate
to decide whether the police report is complete. His power cannot be
controlled by the investigating agency. On receiving police report the
magistrate may take cognizance of the offense under S. 190(1) (b) and
straightaway issue process. This he may do irrespective of the view
expressed by the police in their report whether an offense has been made
out or not.
According to S.190(1)(c) the magistrate can take cognizance of any
offense upon the information received from any person other than a police
officer or upon his knowledge. The object is to enable the magistrate to
see that justice is vindicated notwithstanding that the persons individually
aggrieved are willing or unable to prosecute. Hence the proper use of the
power conferred by this provision is to proceed under it when the
magistrate has reason to believe the commission of a crime but is unable
to proceed ordinary way owing to absence of any complaint or police
report about it. Therefore the word ‘knowledge’ as used in the clause (c)
should be interpreted rather liberally so as to subserve the real object of
the provision. It has been opined that if a magistrate takes action under S.
190(1)(c) without having jurisdiction then such trial would be vitiated.
S. 190 provide that under the condition specified in the section certain
magistrate ‘may’ take cognizance of offenses. There are varying opinions
of the Courts on this point. Considering the observation of the Supreme
Court in this connection it may be fairly concluded that ‘a magistrate has
certain discretion but it must be judicial in nature, it is limited in scope’. And
taking cognizance does not depend upon the presence of the accused in
the court. In fact he does not have any role at this stage. There is no
question of giving him a hearing when final report of the police is
considered. Nor does refusal to take cognizance of an offense leads to
discharge of the accused. It may be noted that a magistrate can take
cognizance of any offense only within the time-limits prescribed by law.
Even after the period of limitation such offenses can be taken cognizance
of by the court if the delay is condoned prior to taking cognizance. The
power to take cognizance of an offense may not be confused with the
power to inquire into or try a case.
COGNIZANCE TAKEN BY A MAGISTRATE NOT EMPOWERED
If any magistrate not empowered to take cognizance of an offense
under S. 190(1)(a) and 190(1)(b), does erroneously in good faith take
cognizance of an offense, his proceeding shall not be set aside merely on
the ground of his not being empowered.
TRANSFER OF CASES AFTER TAKING COGNIZANCE
This includes Transfer on application of the accused under S.191, Power
of the Chief Judicial Magistrate to transfer a case under S.192 (1) and
Magistrate empowered to transfer a case under S. 192(2) of Code of
Criminal Procedure.
1. Transfer on application of the accused– when a magistrate takes
cognizance of an offence under clause (c) of subsection (1) of S. 190, the
accused shall, before any evidence is taken, be informed that he is entitled
to have the case inquired into or tried by another magistrate, and if the
accused or any of the accused, if there be more than one, objects to
further proceedings before the magistrate taking cognizance, the case
shall be transferred to such other magistrate as may be specified by the
Chief Judicial Magistrate in this behalf.
2. Power of the Chief Judicial Magistrate to transfer a case– S.
192(1) provides that any chief judicial magistrate may after taking
cognizance of offence, make over the case for inquiry or trial to any
competent magistrate subordinate to him. The section enables the chief
judicial magistrate to distribute the work for administrative convenience.
This section has conferred special power on the CJM as normally the
magistrate taking cognizance of the offence has himself to proceed further
as enjoined by the Code. But an exception has been made in the case of
CJM, may be because he has some administrative functions also to
perform. The transfer can be ordered only after taking cognizance by the
transferring magistrate. The object of this section is that senior magistrate
may find it convenient to when a magistrate transfers a case under S.192,
it is not an administrative order. It is judicial order in as much as there
should be application of mind by the magistrate before he passes the order
look at most of the cases in the first instance but after taking cognizance
send them for disposal to their subordinates.
3. Magistrate empowered to transfer a case– According to S. 192(2) “Any
Magistrate of the first class empowered in this behalf by the Chief Judicial
Magistrate may, after taking cognizance of an offense, make over the case
for inquiry or trial to such other competent Magistrate as the Chief Judicial
Magistrate may, by general or special order, specify, and thereupon such
Magistrate may hold the inquiry or trial.” This subsection enables the CJM
to clothe a first class magistrate with powers like his own under S. 192(1).
This again is useful in order to relieve the CJM of unnecessary burden.
COGNIZANCE OF OFFENCES BY COURT OF SESSION
No court of session shall take cognizance of any offense as a court of
original jurisdiction unless the case has been committed to it by a
magistrate under S. 193 of the Code. When an offense is exclusively
triable by a court of session according to S.26 read with the First Schedule
the Magistrate taking cognizance of such offence is required to commit the
case for trial to the Court of Session after completing certain preliminary
formality.
Q. Discuss the procedure of a trial of warrant cases instituted otherwise
than a police report.

Ans- Warrant case means a case relating to an offence punishable with

death, imprisonment for life or imprisonment for a term exceeding two
years.

Trial of warrant case begins either by the filing of FIR in a police station by
filing a complaint before a Magistrate. The division of warrant case and
summon case in only for the purpose of a procedure for trial.

Stages of trail of warrant case:-

Trail of warrant case is also divided into two types:-

1. Cases instituted on a police report

2. Cases instituted otherwise than on police report

Now we will discuss in detail as follows:-

A. Compliance with section 207:-

When a warrant case instituted on a police report and after that the
accused appears or is brought before a Magistrate at the commencement
of the trial, the Magistrate shall satisfy himself that he has complied with
the provisions of section 207.

B. When accused shall be discharged:-

After the compliance with the sec 238, the next step is the discharging to
the accused. After the considering the police report and the documents
sent with it under Section 173 and making such examination of the
accused, and after giving the prosecution and the accused an opportunity
of being heard, the Magistrate considers the charge against the accused to
be groundless, he shall discharge the accused, and record his reasons for
so doing.

This section should be read with the framing of charge.

C. Framing of charge:-

Framing of the charge is the duty of the court, that's why the court must
consider over the matter judiciously. After considering our the matter,
examination, hearing, if any, the magistrate of opinion that there is a
ground for presuming that accused has committed an offence triable under
this chapter, which such magistrate is competent to try and which, in the
opinion of, could be adequately punished by him, he shall frame in writing
a charge against the accused. and after that, the charge shall then be read
and explained to the accused and he shall be asked whether he pleads
guilty of the offence charged or claims to be tried.

Trial court under which section frames charge after generally giving a brief
survey of the evidence which is sought to be adduced against the accused.
This section also authorises the magistrate to examine the accused if he
thinks it necessary.

After the framing of charge, if the accused pleads guilty, the magistrate
shall record the plea and may, in his discretion, Convict him thereon.

D. Evidence for prosecution section 242:-

After the framing of charge if accused refused to plead or not plead, or

claims to be tried or Magistrate does not Convict the accused the
Magistrate shall fix a date for the examination of witnesses.

In a criminal trial, the state presents its case first. The burden of proving
the accused guilty, including all the elements of the alleged offence beyond
all reasonable doubt, is on the prosecution. Prosecution can call witnesses
and other evidence in order to prove the offence. The process of proving
guilty by witnesses is called examination in chief. The Magistrate has the
power to summon any person as a witness and order him to produce any
document.

E. Statement of accused:-

Under section 313 of the Criminal Procedure Code accused has an

opportunity to be heard and explain the fact and circumstances of the
case.

F. Defence evidence:-

When the prosecution closes his case after the examine the witnesses the
next stage start that is evidence for defence. In this stage accused has an
opportunity of cross-examination of witnesses who are examined by the
prosecution in examination in chief. Defence can produce both oral and
documentary evidence. Here it is the duty of the prosecution and to
establish the case beyond all reasonable doubt.
G. Argument:-

After the closing of the evidence any party to a proceeding may produce
a concise oral argument, and may before he concludes the oral
arguments, submit a memorandum to the court setting forth concisely and
under the distinct heading.

A copy of every such memorandum shall be simultaneously furnished to

the opposite party.

The court has also the power to interfere if the oral arguments are not to
the point, concise and relevant. This section gives power to the parties to
submit a memorandum of argument. The memorandum must be submitted
before the close of oral evidence.

H. Judgement

The trial ends either in conviction or acquittal of the accused. the

conviction and acquittal of the accused decided by the court with reason is
known as the judgment. In case of the acquittal of the accused the
prosecution is given time to appeal against the order of the court, and in
case of conviction both sides are invited to give arguments on punishment
which is to be awarded.

Q. Discuss the procedure of trial of summons cases by Magistrate.

Ans- Introduction:-

There is a procedure provided by the code of criminal procedure 1973 for

dealing with the proceedings in the court relating to an offence or crime.
The procedure is followed by the court is known as a criminal trial. Here we
are discussing the stage of the criminal trial. The trial of warrant cases and
pre-trial stage of the criminal trial has been discussed in our last posts.

What is Summon case ?:-

Summons case has been defined, in a negative sense, under Section 2(w)
of the Code as “a case relating to an offence, not being a warrant case”.
On the other side, a “warrant case” means a case relating to an offence
punishable with death, imprisonment for life or imprisonment for a term
exceeding two years.
Stages of the summons cases:-

In a trial of summons case, the following stages are to be followed:-

1. State the particulars of the offence to the accused:-

In the summons case when the accused is brought or appears before the
Magistrate, the particulars of the offence of which he is accused shall be
stated to him, and he shall be asked whether he pleads guilty or has any
defence to make, but it shall not be necessary to frame a formal charge.

2. Conviction on plea of guilty:-

After stating all the particulars of the offence, if the accused pleads guilty,
the Magistrate shall record the plea as nearly as possible in the words of
the accused and may, in his discretion, convict him thereon. When
accused admits some or all of the facts alleged by the prosecution but
pleads ‘not guilty’, the court will proceed according to law by examining the
witnesses for the prosecution and defence.

3. Conviction on plea of guilty in absence of accused in petty case:-

After the issuing the summons under section 206 and where the accused
desires to plead guilty to the charge without appearing before the
magistrate, he shall transmit to the Magistrate, a letter containing his plea
and also the amount of fine specified in the summons by post or by
messenger.

The Magistrate has discretionary power to convict the accused in his

absence, on his plea of guilty and sentence him to pay the fine specified in
the summons. And the amount sent by the accused shall be adjusted
towards that fine.

Where a pleader authorized by the accused in this behalf pleads guilty on

behalf of the accused, the Magistrate shall record the plea as nearly as
possible in the words used by the pleader and may, in his discretion,
convict the accused on such plea and sentence him as aforesaid.

4. Procedure when not convicted:-

When the accused does not admit his guilty or the Magistrate does not
convict the accused under section 252, or section 253, the Magistrate is
bound to hear the complainant and his witnesses. The Magistrate cannot
acquit the accused without examining the complainant and his witnesses.
On the application of the prosecution or the accused the Magistrate may
issue a summons to any witness directing him to attend or to produce any
document or other things. The Magistrate has no discretion to refuse the
examination of a witness tendered by the accused.

5. Acquittal or conviction:-

After the completion of the above stages and such further evidence, if any
the Magistrate finds that the accused not guilty then he shall record an
order of acquittal. He may also decide to release the offender on probation
of good conduct after under Section 360, or under Probation of offender
Act, 1958 after considering the nature of offence, the character of offender
and circumstance of the case. A Magistrate may, under Sec. 252 or Sec.
255, convict the accused of any offence triable under this chapter,
whatever may be the nature of the complaint or summons if the Magistrate
is satisfied that the accused would not be prejudiced thereby.

Q. What are the objects of summary trial? What offences may be

summarily tried and by whom? Give a brief account of general provisions
of summary trial as contained in Cr. P. C.
Also
What do you understand by summary trial? State the procedure to be
adopted by a Magistrate in a case triable summarily.
Also
What is summary trial? State its objectives. What offences may be tried
summarily and by whom? Enumerate the basic provisions under Cr. P. C
for summary trial.

Ans: Summary Trial:

Summary trial implies speedy disposal. By summary trial it is meant that a

case which can be tried or disposed of at once. Summary trial is not
intended for a contentious and complicated case which necessitates a
lengthy inquiry.

Object of Summary Trial:

The object of summary trial is to have a record sufficient for the purpose of
justice but not so long as to impede speedy disposal of cases. At the
conclusion of the trial the Magistrate enters the accused’s plea and a
finding in a form prescribed by the government. No formal charge is
required to be framed.

What offences may be tried summarily and by whom:

Section 260 Cr.P.C. clearly mentioned who can try the offence summarily
and what are the offences. It states thus-

a. Any Chief Judicial Magistrate;

b. Any Metropolitan Magistrate;

c. Any Magistrate of the first class specially empowered in this behalf by

the High Court,

may if he thinks fit try the following categories of offence in a summary

way:

i. offences not punishable with death, imprisonment for life or imprisonment

for a term exceeding two years;

ii. offences under section 379,380 or 381 of the IPC where the value of the
stolen property does not exceed two thousand rupees;

iii. receiving or retaining stolen property under section 411 IPC where the
value of the property does not exceed two thousand rupees;

iv. assisting in the concealment or disposal of stolen property under

section 414 IPC where the value such property does not exceed two
thousand rupees;

v. offence under section 454 and 456 IPC

vi. offence 504 and 506 IPC

vii. abetment of any of the offences

viii. an attempt to commit it any of the offences, when such attempt is an

offence.

When in the course of a summary trial it appears to the Magistrate that the
nature of the case is such that it is undesirable to try it summarily the
Magistrate shall recall any witness who may have been examined and
proceed to rehear, the case in the manner provided by this code.

Procedure/provision/ to be adopted by a Magistrate in Summary Trial:

Section 262 Cr.P.C. provides that the procedure for summary trial shall be
the procedure specified in this code for the trial of a summons case except
as mentioned.

In case of summary trial no sentence of imprisonment for a term exceeding

three months shall be passed in case of conviction.

According to section 263 Cr.P.C. in every case tried summarily the

Magistrate shall enter in the record of the case the following particulars:

a. the serial number of the case;

b. the date of the commission of the offence;

c. the date of the report or complaint;

d. the name of the complaint;

e. the name, parentage and residence of the accused;

f. the offence complained of and the offence proved, and in cases coming
under clause (ii), (iii) or (iv) of sub-section (1) of section 260, the value of
the property in respect of which the offence has been committed;

g. the plea of the accused and his examination;

h. the finding;

i. the sentence or other final order;

j. the date on which proceeding terminated.

Q. What is the meaning of arrest? Write the rights of arrested person with
its consequence of non-compliance with the provisions relating to arrest.

Ans- The term arrest, stands for the meaning that apprehension of a
person by legal authority so as to cause deprivation of liberty.
Furthermore, arrest can also be understood as a seizure or forcible
restraint. It is an exercise of power in order to deprive a person of his or
her liberty and involves the keeping of a person in custody by legal
authority, especially, in response to a criminal charge.
Under criminal law, arrest is an important tool in order to bring an accused
before the court and to not let him abscond.
Process of making an arrest under the CrPC-
It is under the section 46 of the code which states the mode of with or
without warrant. In order to make an arrest the police officer /other person
making the same, is bound to actually touch or confine the body of the
person who is supposed to be arrested until unless there is a submission
to custody by words or action.
In cases where a woman is to be arrested, her submission to custody shall
be presumed on an oral intimation of arrest unless the circumstances
indicate the contrary, or unless there is female police officer, the male
officer making the arrest shall not touch the woman who is to be arrested.
No women shall be arrested after sunset and before sunrise except under
exceptions and where such exceptional circumstances exist, it is the duty
of the woman police officer to make a written report, and obtain the prior
permission of the Judicial Magistrate of the first class with competent
jurisdiction of the offence for which such arrest is to be made.
Available rights
There are two types of rights available to the arrested-

1) Rights at the time of arrest

2) Rights at the time of trial

Below has been explained the rights available under both these
categories:
Right To Know The Grounds of Arrest
1. According to Section 50(1) of Cr.P.C., an accused who is being arrested
by any police officer, without any warrant, has the right to know the full
particulars of offence for which he is being arrested, and so it’s the
undeniable duty of the police officer to inform the accused of the
particulars.

2. Under section 55 of Cr.P.C., it is the right of the accused to know in

case of being arrested, the written order against him, specifying the
offence or other cause for which the arrest is being made. The arrest will
be illegal in case of non compliance of this provision.
3. In case when the person is being arrested under a warrant, then
according to Section 75 of Cr.P.C, any person who is executing such
warrant must notify the person who is being arrested, the content of such
warrant, or show the warrant if required. If under any circumstance the
substance of the warrant is not notified, the arrest would be unlawful.
Informing regarding the right to be released on bail
It is to be seen that any person who is to be arrested without a warrant and
who is accused of bailable offence that he be informed by the police officer
about his right regarding to be released on bail by payment of the surety
amount.
Right of an arrested person to be taken before magistrate without delay
Section 56 of Cr.P.C. states that the person who is arrested is required to
be taken before a magistrate or officer in charge of police station. Also in
cases where the police officer makes an arrest without warrant, then in
such case the arrested person shall be taken to the magistrate with
competent jurisdiction or before the in charge of police station without any
delay.

Section 76 of Cr.P.C. states that the arrested person needs to be bought

before the court without any unnecessary delay. In accordance with the
provisions of section 71 in regard with the police officer or other person
executing a warrant of arrest, they shall without unnecessary delay and
due to security purposes bring the person arrested before the Court before
which he is required by law to produce such person.
Rights at Trial

Right To Consult A Legal Practitioner

It is the right of every arrested person to consult a legal practitioner of his
own choice. This has also been enshrined as a fundamental right in Article
22(1) of the Constitution of India, which is undeniable in all cases. Section
50(3) of the Code also states that the person against whom proceedings
are initiated has a right to be defended by a pleader of his choice. This
right begins as soon as the person is arrested.
Rights of Free Legal Aid :
The Supreme Court in the case of in Khatri(II) v. the State of Bihar held
that the state is under a constitutional obligation as is implicit in article 21
of the constitution as well to provide free legal aid to an indigent accused
person . It is important to note the fact that this right starts at the time of
trial and continues till the accused is produced the first time before the
magistrate and also when remanded from time to time. The Supreme
Court has emphasised the importance of this right by stating that that
failure on the part of the state to inform the accused of this right will vitiate
the whole process of trial. Therefore, it is a binding duty imposed on all
magistrates and courts to inform the indigent accused of his right to get
free legal aid. The apex court has taken a step further in Suk Das v. Union
Territory of Arunachal Pradesh, wherein it has laid down that this
constitutional right cannot be denied if the accused failed to apply for it.
Right To Be Examined By A Medical Practitioner:
Section 54 of Cr.P.C. enumerates this right and it states that examination
of arrested person by medical practitioner at the request of the arrested
person. When an arrested person, whether on a charge or otherwise
alleges at the time when he is produced before a Magistrate or at any time
for which he is detained in custody that the examination of his body will
afford evidence which will lead to disproving the commission of offence by
him or which will establish the committing of offence by any other person
against his body, the Magistrate shall, direct the examination of the body of
such person by a registered medical practitioner. The Magistrate needs to
rely on his better judgement to see that the request is not made for the
purpose of vexation or delay or for defeating the ends of justice.

Q. What is the object of Charge? What procedure si to be followed when a

charge is altered by court? Explain.

Ans- Every charge under the code of criminal procedure, 1973 shall state
the offence with which the accused is charged. The motive behind a
charge is precisely and succinctly to let know the accused individual, the
issue for which he is being charged. It is necessary to pass on to the
accused absolutely clearly and with certainty what the prosecution has
accused him of or what the prosecution has against him. The underlying
principle of criminal law is based on the fact that it is the right of the
accused to be informed about the exact nature of the charge labelled
against him.

Hence we see that knowing the charge which is levied against the accused
is important for him to be known so that he can prepare his defence and so
that justice is done by him. It is in the very beginning only that the accused
is informed of his accusation in the beginning itself. It is to be kept in mind
that in case of serious offences the statute requires the accusations to be
formulated and reduced to writing with great precision & clarity. It is also
necessary that the charge be then read and explained to the accused
person.
Under section 2(b) CrPC, 1973, ‘charge’ includes any head of charge
when the charge contains more heads than one. Hence it can be
interpreted that when a charge contains more than one heads, the head of
charges is likewise a charge.
Contents of Charge-
Or
Essentials of Charge
The following are the contents that are a must for a charge:
Stating the Offence
The offense must be expressed, in a charge sheet so that the accused
may shield himself.
Describing the offence by the name
Along with the charge the name of the offence, related to such charge
must be clearly defined and explained.
Defining and understanding the offense
In places where the criminal law has not named the offence then a
definition/ meaning of the offense must be expressed.
Mentioning the law and section of law
The charge must contain the law or the section of the law against which
the offense has been said to be committed.
Substantive requirements of offense to be complied with
The charge must fulfill the requirements of the offense, whether there are
any exceptions are there or not and if there are then the charge should
adhere to them.
Charge’s language
It is to be noted that one of the basic essentials of charge is that the
charge should be framed in English or the Court’s language or the
language which is understandable by an accused.
Accused person’s previous convictions
Charge might state the fact, date, and place of the previous conviction in
places where the accused is liable to enhanced punishment by virtue of his
previous conviction and where such previous conviction has to be proved.
Details of Time, Place and Person
It is crucial for a charge to contain the time when offense happened, place
where offense was committed, person against whom the offense was
committed and any other object or thing against whom the offense was
committed.
Particulars of the way in which the offence was committed
In cases where the information above is not sufficient to give notice of the
offense with which the alleged accused has been charged, then it is
expected that the charge shall include the particulars of the manner in
which the alleged offense was committed.
Thing in respect of which offense is committed
It is important for a charge to express the property in respect of which the
offence is said to have taken place.

Procedure to be followed in alteration of charge

Legal provisions regarding alteration of charge by Court and the procedure
thereafter under section 216 and 217 of the Code of Criminal Procedure,
1973.

(1) Any Court may alter or add to any charge at any time before judgment
is pronounced.

(2) Every such alteration or addition shall be read and explained to the
accused.

(3) If the alteration or addition to a charge is such that proceeding

immediately with the trial is not, likely, in the opinion of the Court, to
prejudice the accused in his defence or the prosecutor in the conduct of
the case, the Court may, in its discretion, after such alteration or addition
has been made, proceed with the trial as if the altered or added charge
had been the original charge.

(4) If the alteration or addition is such that proceeding immediately with the
trial is likely, in the opinion of the Court, to prejudice the accused or the
prosecutor as aforesaid, the Court may either direct a new trial or adjourn
the trial for such period as may be necessary.

(5) If the offence stated in the altered or added charge is one for the
prosecution of which previous sanction is necessary, the case shall not be
proceeded with until such sanction is obtained, unless sanction has
already been obtained for a prosecution on the same facts as those on
which the altered or added charge is founded.

According to Section 217 of the Code, whenever a charge is altered or

added to by the Court after the commencement of the trial, the prosecutor
and the accused shall be allowed:

(a) To re-summon, and examine with reference to such alteration or

addition, any witness who may have been examined, unless the Court, for
reasons to be recorded in writing, considers that the prosecutor or the
accused, as the case may be, desires to recall or re-examine such witness
for the purpose of vexation or delay or for defeating the ends of justice.

(b) Also to call any further witness whom the Court may think to be
material.
When a charge is altered, the accused has the right and the Court is
bound to recall any witness whom the prosecution or the accused desires
to recall. After an alteration or addition of the charge the interest of
prosecution and accused has to be safeguarded by permitting them to
further examine or cross-examine the witnesses already examined, as the
case may be, and by affording them an opportunity to call other witnesses.
And the Court is given the discretion to disallow the request of the
prosecutor or the accused to recall witnesses or three grounds, namely, (i)
vexation, (ii) delay, or (iii) defeating the ends of justice.
What persons may be charged jointly:

Section 223 Cr.P.C. tells about what persons may be charged jointly.
Accordingly, the following persons may be charged and tried jointly-

a. Person accused of the same offence committed in the course of the

same transaction;

b. Person accused of an offence and Person accused of abetment of, or

attempt to commit, such offence;

c. Person accused of more than once offence of the same kind, within the
meaning of section 219 committed by them jointly within the period of
twelve months;

d. Person accused of different offences committed in the course of the

same transaction;

e. Person accused of an offence which includes theft, extortion, cheating,

or criminal misappropriation, and persons accused of receiving or
retaining, or assisting in the disposal or concealment of, property
possession of which is alleged to have been transferred by any such
offence committed by the first named persons, or of abetment of or
attempting to commit any such last-named offence;

f. Person accused of offences under section 411 and 414 of the Indian
Penal Code or either of those sections in respect of stolen property the
possession of which has been transferred by one offence;

g. Person accused of any offence under Chapter XII of the Indian Penal
Code relating to counterfeit coin and persons accused of, any other
offence under the said Chapter relating to the same coin, or of abetment of
or attempting to commit any such offence; and the provisions contained in
the former part of the Chapter shall, so far as may be apply to all charges.
Q. Write an exhaustive note on the concept of Plea Bargaining.

Ans- Plea bargaining is a pre-trial negotiation between the accused and

the prosecution where the accused agrees to plead guilty in exchange for
certain concessions by the prosecution. It is a bargain where a defendant
pleads guilty to a lesser charge and the prosecutors in return drop more
serious charges. It is not available for all types of crime e.g. a person
cannot claim plea bargaining after committing heinous crimes or for the
crimes which are punishable with death or life imprisonment.

Criminal Procedure Code and Plea Bargaining

Section 265A to 265L, Chapter XXIA of the Criminal Procedure Code deal
with the concept of Plea Bargaining. It was inserted into the Criminal Law
(Amendment) Act, 2005. It allows plea bargaining for cases:

1. Where the maximum punishment is imprisonment for 7 years;

2. Where the offenses don’t affect the socio-economic condition of the

country;

3. When the offenses are not committed against a woman or a child below
14 are excluded

Cr. P. C introduced Chapter XXIA Section 265A to 265L and brought the
concept of plea bargaining in India. The following are provisions which it
added:-

Section 265-A (Application of Chapter) the plea bargaining shall be

available to the accused who is charged with any offense other than
offenses punishable with death or imprisonment or for life or of an
imprisonment for a term exceeding to seven years. Section 265 A (2) of
the Code gives the power to notify the offenses to the Central Government.

Section 265-B (Application for Plea Bargaining)

1. A person accused of an offense may file the application of plea
bargaining in trails which are pending.

2. The application for plea bargaining is to be filed by the accused

containing brief details about the case relating to which such application is
filed. It includes the offences to which the case relates and shall be
accompanied by an affidavit sworn by the accused stating therein that he
has voluntarily preferred the application, the plea bargaining the nature
and extent of the punishment provided under the law for the offence, the
plea bargaining in his case that he has not previously been convicted by a
court in a case in which he had been charged with the same offence.

3. The court will thereafter issue the notice to the public prosecutor
concerned, investigating officer of the case, the victim of the case and the
accused of the date fixed for the plea bargaining.

4. When the parties appear, the court shall examine the accused in-
camera wherein the other parties in the case shall not be present, with the
motive to satisfy itself that the accused has filed the application voluntarily.

Section 265-C (Guidelines for Mutually satisfactory disposition)

It lays down the procedure to be followed by the court in mutually

satisfactory disposition. In a case instituted on a police report, the court
shall issue the notice to the public prosecutor concerned, investigating
officer of the case, and the victim of the case and the accused to
participate in the meeting to work out a satisfactory disposition of the case.
In a complaint case, the Court shall issue a notice to the accused and the
victim of the case.

Section 265-D (Report of the mutually satisfactory disposition) This

provision talks about the preparation of the report of mutually satisfactory
disposition and submission of the same. Two situations may arise here
namely

1. If in a meeting under section 265-C, a satisfactory disposition of the

case has been worked out, the report of such disposition is to be prepared
by the court. It shall be signed by the presiding officer of the Courts and all
other persons who participated in the meeting.

2. If no such disposition has been worked out, the Court shall record such
observation and proceed further in accordance with the provisions of this
Code from the stage the application under sub-section (1) of section 265-B
has been filed in such case.
Section 265-E (Disposal of the case) prescribes the procedure to be
followed in disposing of the cases when a satisfactory disposition of the
case is worked out. After completion of proceedings under Section 265-D,
by preparing a report signed by the presiding officer of the Court and
parties in the meeting, the Court has to hear the parties on the quantum of
the punishment or accused entitlement of release on probation of good
conduct or after admonition. Court can either release the accused on
probation under the provisions of Section 360 of the Code or under the
Probation of Offenders Act, 1958 or under any other legal provisions in
force or punish the accused, passing the sentence. While punishing the
accused, the Court, at its discretion, can pass sentence of minimum
punishment, if the law provides such minimum punishment for the offenses
committed by the accused or if such minimum punishment is not provided,
can pass a sentence of one-fourth of the punishment provided for such
offense. ”

Section 265-F (Judgment of the Court) talks about the pronouncement of

judgment in terms of mutually satisfactory disposition.

Section 265-G (Finality of Judgment) says that no appeal shall be against

such judgment but Special Leave Petition (Article 136) or writ petition
(under Article 226 or 227) can be filed.

Section 265-H (Power of the Court in Plea Bargaining) talks about the
powers of the court in plea bargaining. These powers include powers in
respect of bail, the trial of offenses and other matters relating to the
disposal of a case in such court under Criminal Procedure Code.

Section 265-I (Period of detention undergone by the accused to be set off

against the sentence of imprisonment) says that Section 428 of CrPC is
applicable for setting off the period of detention undergone by the accused
against the sentence of imprisonment imposed under this chapter.

265-J (Savings) talks about the provisions of the chapter which shall have
effect notwithstanding anything inconsistent therewith contained in any
other provisions of the Code and nothing in such other provisions shall be
construed to contain the meaning of any provision of chapter XXI-A

Section 265-K (Statement of the accused to be used) specifies that the

statements or facts stated by the accused in an application under section
265-B shall not be used for any other purpose except for the purpose as
mentioned in the chapter.

Section 265-L (Non-application of the chapter) makes it clear that this

chapter will not be applicable in case of any juvenile or child as defined in
Section 2(k) of Juvenile Justice (Care and Protection of Children) Act,
2000.

Q. Under what provision of law Curfew is imposed? Whether any revision

lies against such an order?
Ans: A curfew is an order specifying a time after which certain regulation
applies. It is an order by the government for certain persons to return home
daily before a certain time. It can be imposed to maintain public order.
Basically, none of the Indian Law provides definition of the term ‘Curfew’.
However, curfew means regulation obliging persons to be in door within
certain hours. The word ‘Curfew’ comes from the French phrase ‘Couvre-
feu’ which denotes- ‘cover the fire’. It was normally used to describe the
time of blowing out all lamps and candle.

The District Magistrate is responsible for maintain law and order within the
limit of his jurisdiction. He is conferred with very wide powers of the law,
which if used prudently can be very effective in maintaining peace and
tranquillity. He can impose restriction on the movement of unlawful
assembly under section 144 Cr.P.C. and also impose curfew keeping in
view the situation.

Whether any revision lies against such an order:

Yes, The authority of the Magistrates exercising power under section 144
Cr.P.C. is neither absolute nor supreme but subject to supervision and
revision by the HC and therefore the Magistrate in order to act legally and
with propriety must indicate with reasonable fullness the material on which
they conclude that there was some emergency justifying their action so
that the higher court may check and break them and put them back and
rails when they go up.

Q. What is the requirement of law regarding language and contents of

judgment in criminal case? Can the court review the judgment after it is
delivered?
Also
What are the essentials of a judgment? What is the mode of its delivery?
Can a criminal court alter or revise its own judgment after it is signed?

Ans: Section 354 Cr.P.C. provides the provisions regarding the language
and contents of judgement. According to this section every judgement-

a. shall be written in the language of the court;

b. shall contain the point or points for determination, the decision thereon
and the reasons for the decision;
c. shall specify the offence ( if any) of which, and the section of the Indian
Penal Code or other law under which, the accused is convicted and the
punishment to which he is sentenced;

d. if it be a judgment of acquittal, shall state the offence of which the

accused is acquitted and direct that he be set at liberty.

When the conviction is under the IPC and it is doubtful under which of two
sections or under which of two parts of the same section of that code the
offence falls the court shall distinctly express the same and pass
judgement in the alternative.

When the conviction is for an offence punishable with death or with

imprisonment for life or imprisonment a term of years, the judgement shall
state the reasons for the sentence awarded and in the case of sentence of
death the special reasons for such sentence.

When any person is sentenced to death the sentence shall direct that he
be hanged by the neck till he is dead.

Section 355 Cr.P.C. deals with judgement by Metropolitan Magistrate. This

section lays down that metropolitan Magistrate need not write a detail
judgement as provided in Section 354 Cr.P.C. but should only record the
particulars set out in this section.

Section 357 Cr.P.C. provides when a court imposes a sentence of fine or a

sentence of which find forms a part, the court may when passing
judgement, order the whole or any part of the fine recovered and to be
applied in different categories as mentioned in the section itself.

Can the court review the judgment after it is delivered:

Section 362 Cr.P.C. specifically mentioned- “save as otherwise provided

by this code or by any other law for the time being in force, no court when
it has signed its judgement or final order disposing of a case shall alter or
review the same except to correct a clerical or arithmetical error.
The section applies to judgement as well as final orders. It prohibits the
court from altering or revising any judgement or final order disposing of a
case after it has been signed except for the purpose of correction clerical
or arithmetical error. As soon as judgement or final order disposing of a
case is signed it becomes final and the court is ‘Functus Officio’. In
Sarveswar Panda vs Adhir Kumar Jana, the apex court observed that the
court has no jurisdiction to set aside or review its own judgement or final
order which has already been signed.

What is the mode of its delivery:

‘Judgement’ means the expression of the opinion or judge or Magistrate

arrived at after due consideration of the evidence and of the arguments.
Judgement means a judgement of conviction or acquittal, but not order of
discharge U/S 245Cr.P.C.

The mode of delivery of judgement is provided under section 353r.P.C.

Accordingly, the judgement in every trial in any criminal jurisdiction shall be
pronounced in open court by the presiding officer immediately after the
termination of the trial or at some subsequent time of which notice shall be
given to the parties or their pleader-

a. by delivering the whole of the judgment; or

b. by reading out the whole of the judgment; or

c. by reading out the operative part of the judgment and explaining the
substance of the judgment in a language which is understood by the
accused or his pleader.

The Presiding Officer shall sign every page of the judgment and shall be
dated.

If the accused is in custody he shall be brought up to hear the judgment

pronounced. If he is not in custody, he shall be required by the court to
attend to hear the judgment pronounced, except where personal
attendance during the trial has been dispensed with and the sentence is
one of fine only or he is acquitted.

Q. What do you understand by ‘Autrefois Acquit’ and ‘Autrefois Convict’?

Discuss how the above principle has been dealt with in Section 300 Cr. P.
C.
Ans- Autrefois Acquit and Autrefois Convict are the French terms literally
meaning “previously acquitted” and “previously convicted” respectively.
These two terms have their origin in the common law where they are
accepted as the pleas of autrefois acquit and autrefois convict and these
pleas have the effect that the trial cannot go ahead due to the special
circumstances that these two pleas depict. Actually, a plea of autrefois
acquit means that a person cannot be tried again for an offense for the
reason that he has previously been acquitted in the same offense and
such a plea can be taken or combined with plea of not guilty.
Protection against double jeopardy has been provided by many countries
as a constitutional right India being one of them. The other countries
include Canada, Israel, Mexico, and U.S. However in this project we will
analyze this Doctrine of Autrefois Acquit and Autrefois Convict in special
reference to Indian context in the light of the provisions of Code of Criminal
Procedure, 1973, Constitution of India and Indian Evidence Act, 1872.
The Constitution of India has provided this protection as a fundamental
right under Article 20(2) which provides “No person shall be prosecuted
and punished for the same offense more than once”. The same principle
has been enacted in section 26 of the General Clauses Act, 1897
and section 300 of the Criminal Procedure Code, 1973. However, these
two provisions mentioned later have formed the basis of the incorporation
of the protection against double jeopardy as a fundamental right
guaranteed by the Constitution of our country. However, this is to be
emphasized and the same will be analyzed in the later part of this project
that this doctrine has not been a replicate of the forms that exist in the
Common Law and the U.S constitution. In a nutshell at this point, it can be
just said that the ambit of this doctrine in Indian context quite narrower as
compared to other systems.
DOCTRINE OF AUTREFOIS ACQUIT AND AUTREFOIS CONVICT IN
RELATION TO CRIMINAL PROCEDURE CODE, 1973
The Code of Criminal Procedure, 1973 which is the major procedural law
with regard to the criminal cases has incorporated this doctrine which has
been provided in section 300 of this code.
“Section 300(1) : A person who has once been tried by a court of
competent jurisdiction for an offence and convicted or acquitted of such
offence shall, while such conviction or acquittal remains in force, not be
liable to be tried again for the same offence, nor on the same facts for any
other offence for which a different charge from the one made against him
might have been made under sub section (1) of section 221, or for which
he might have been convicted under sub section (2) thereof.
(2) A person acquitted or convicted of any offence may be afterwards tried,
with the consent of State Government, for any distinct offence for which a
separate charge might have been against him at a former trial under sub
section (1) of section 220.
(3) A person convicted of any offence constituted by any act causing
consequences which together with such act, constituted a different offence
from that of which he was convicted, may be afterwards tried for such last
mentioned offence, if the consequences had not happened, or were not
known to the court to have happened, at the time when he was convicted.
(4) A person acquitted or convicted of any offence constituted by any acts
may, notwithstanding such acquittal or conviction, be subsequently
charged with, and tried for, any other offence constituted by the same acts
which he may have committed if the court by which he was first tried was
not competent to try the offence with which he is subsequently charged.
(5) A person discharged under section 258 shall not be tried again for the
same offence except with the consent of the Court by which he was
discharged or of any other Court to which the first mentioned court is
subordinate.
(6) Nothing in this section shall affect the provisions of section 26 of the
General Clauses Act, 1897 or of section 188 of this code.”
This rule is actually based on common law maxim nemo debet bis
vexari that means a person shall not be brought into danger for one and
the same offense more than once. The application of this doctrine in the
Indian context is different from that in Common Law and U.S legal system.
A detailed study of this section will bring out that the conditions necessary
for the application of this provision.
Trial on separate charges:
Section 300(2) contemplates a situation where a person might have been
charged with and tried in accordance with section 220(1) of Cr.PC, 1973.
In this case, the person who can be so charged may be tried once again
even after the order of the conviction or acquittal in the previous case,
however with the prior consent of the state government. Section
220(1) provides that if in one series of acts so connected together as to
form the same transaction, more offenses than one are committed by the
same person, he may be charged with and tried at one trial for, every such
offense.
RES JUDICATA AND RELEVANCY WITH PROTECTION AGAINST
DOUBLE JEOPARDY
The principle of res judicata or in other words principle of issue estoppel
does not bar a trial rather it is a rule of evidence according to which, where
an issue of fact has been tried by a competent Court on a former occasion
and a finding has been reached in favor of the accused, such finding would
constitute an estoppel or res judicata against the prosecution, not as a bar
to trial and conviction of the accused for a distinct offence, but as
precluding the reception of an evidence to disturb the finding of the fact
when the accused is tried subsequently even for a different offense which
might be permitted by law.
All the subsections of Section 300 except sub section 3 specifically lay
down that both conviction and acquittal act as a bar to the subsequent trial
of the same person in various circumstances. In such a situation I find the
statutory provision of Cr.PC and the Constitutional mandate in conflict with
each other. However, this is known that in any circumstance any
Constitutional provision will prevail over other statutes. More so a possible
reason that I am able to figure out is the time gap between the enactments
of the statutory provision of Cr.PC and that of the Constitutional provision.
No doubt the principles of autrefois acquit and autrefois convict which were
pre-existing in the old Cr.PC as well as the General Clauses Act, 1897
formed the basis for incorporation of this as a fundamental right when the
Constitution was enacted in India, though with some reservations which
limit the ambit and scope of the doctrines.

Q. Discuss the law regarding limitation U/S 468 Cr. P.C. Whether it applies
in case of continuing offences?
Also
What are the periods of limitation prescribed by the Cr. P. C for taking
cognizance of offences? Is the judicial Magistrate empowered to extend
the prescribed period of limitation in respect of offences under the IPC?
Also
Write short notes on the following- Limitation for taking cognizance of
offences.

Ans: Section 468 Cr.P.C. specifically mentioned (1) Except as otherwise

provided elsewhere in this code, no court shall take cognizance of an
offence of the category specified in sub-section (2), after the expiry of the
period of limitation.

(2) The period of limitation shall be-

a. six months, if the offence is punishable with fine only;

b. one year, if the offence is punishable with imprisonment for term not
exceeding one year;
c. three years if the offence is punishable with imprisonment for a
term exceeding one year but not exceeding three years.

(3) For the purposes of this section, the period of limitation, in relation to
offences which may be tried together, shall be determined with reference
to the offence which is punishable with the more severe punishment or, as
the case may be, the most severe punishment.

The object of this section in putting a bar of limitation on prosecution was

clearly to prevent the parties from filing cases after a long time as a result
of which material evidence may vanish and also to prevent the filing of
vexatious and belated prosecution.
Where the complaint was filed within time but cognizance was taken after
the expiry of limitation, it was held that the bar under Section 468Cr.P.C.
from taking cognizance will operate only when the complaint is barred by
limitation. Limitation should be reckoned from the date of filing the
complaint, and not with reference to date of taking cognizance.

Taking cognizance after expiry of Limitation:

Where the court takes cognizance of an offence after the expiry of the
period of limitation, the discretion of the court in this respect must be
exercised by a speaking order. It should be exercised judicially on the
basis of well recognised principles. But a non speaking order would not
become vitiated by itself. No period of limitation was prescribed for the
offence in question.

Is the judicial Magistrate empowered to extend the prescribed period of

limitation in respect of offences under the IPC:

Section 473Cr.P.C. speaks about the fact that a judicial officer is

empowered to extend the prescribed period of limitation in taking
cognizance in certain circumstances. According to this section- any court
may take cognizance of an offence after the expiry of the period of
limitation, if it is satisfied on the facts and in the circumstances of the case
that the delay has been properly explained or that it is necessary so to do
in the interests of justice.

Q. Distinguish between Anticipatory bail and an ordinary bail. What are

the considerations for granting and cancelling bail.
Also
Discuss various provisions under Cr. P. C under which release of accused
on bail is mandatory? What do you understand by ‘anticipatory bail’?
Which courts are competent to grant ‘anticipatory bail’?
Also
What is anticipatory bail? Discuss when and under what circumstances
and by whom anticipatory bail can be granted.
Also
Is it correct to say that granting of bail to an accused by Magistrate is
matter of discretion? Discuss in detail the procedure and provision for pre-
arrest bail. Can such bail be claimed as a matter of right?

Ans: Anticipatory Bail:

Anticipatory bail is a power exercisable in case of an anticipated
accusation of non-bailable offence and there is no limitation as to category
of non-bailable offence in respect of which the power can be exercised by
the appropriate court. In case of anticipatory bail, the accused person is
not under arrest rather he is apprehending arrest pursuant to complain or
FIR before the competent authority where he has a reason to belief of his
involvement on the alleged accusation. The provision of anticipatory bail
under section 438Cr.P.C. whereby empowering the HC and Court of
session for a direction under the section that in the event of such arrest he
shall be released on bail after taking into consideration certain criteria
contained under sub-section (1) of section 438 Cr.P.C.

Ordinary Bail:

Unlike anticipatory bail, ordinary bail can be granted by any competent

court U/S 437Cr.P.C. on the following basic principle:-

1. Bail is matter of right, if the offence is bailable.

2. Bail is a matter of discretion, if the offence is non-bailable.

3. Bail shall not be granted by the Magistrate if the offence is punishable

with death or imprisonment for life except in case of woman or minor under
the age of 16 years or sick or infirm person.

4. The HC & sessions court have a wider discretion.

The main point of distinction between an ordinary bail and an ordinary bail
and an anticipatory bail is that ordinary bail as provide U/S 437Cr.P.C.
does not authorise the grant of bail by anticipation to persons who are not
arrested or detained or against whom no warrant for arrest has been
issued.

considerations for granting of bail:

According to section 437(1) Cr.P.C. when any person is arrested or

detained without warrant or appears or brought before a court other than
the HC or Court of Session he may be released on bail taking into account
the following considerations:-

i. Such person shall not be released on bail if there appears reasonable

ground for believing that he has been guilty of an offence punishable with
death and imprisonment for life.
ii. Such person shall not be released on bail if the offence is a cognizable
one and he had been previously convicted of an offence punishable with
death, imprisonment for life or imprisonment for seven years or more.

Provided that such person is released on bail if-

i. Such person is under the age of 16 years or is a woman or is sick or

infirm.

ii. If the court is satisfied that it is just and proper to do so for any other
special reason.

considerations for cancellation of bail:

Sub- section (5) of section 437Cr.P.C. implies jurisdiction in the court

concern to cancel or order of bail. One of the following conditions must be
satisfied before bail is cancelled:-

i. If the person runs away foreign country or goes underground for beyond
the control of his sureties;

ii. where the person on bail commits the very same offence for which he is
being tried or has been convicted;

iii. When on bail, he forcibly prevents the search of places under his control
for the detection of corpus or other incriminating things;

iv. If he tempers with the evidence by intimidating prosecuting witness,

interfering with the scene of offence in order to remove traces or proof of
the crime etc.

v. If he commits act s of violence, in revenge, against the police and the

prosecuting witnesses.

Release of accused on bail is mandatory:

According to section 437 Cr.P.C. a person accused of a bailable offence

has the right to be released on bail and in such occasion the release of the
accused on bail is mandatory.

Which courts are competent to grant Anticipatory Bail:

According to section 438 Cr.P.C. the HC or the Court of Sessions is
competent to grant anticipatory bail.

Can such bail be claimed as a matter of right:

No, the power of anticipatory bail has to be exercised sparingly and in

exceptional cases. A person should be granted anticipatory bail only when
the court is convinced that the applicant is such who would not abscond or
otherwise misuse his liberty. As anticipatory bail granted to a person
without being an arrest and on special circumstances, the court being fully
satisfied with the fact of the matter, such bail cannot be claimed as a
matter of right rather it is the discretion of the court.

Q. The statements recorded by a police officer in course of investigation

cannot be used at any trial. Comment

Ans: In course of investigation, the investigating officer may record the

statement of any person supposed to be acquainted with facts and
circumstances of the case. In that event, such person bound to answer
truly all questions relating such case put to him such officer with certain
exception. The police officer may reduce into writing any statement made
to him in the course of his examination. This provision has been dealt with
U/S 161 Cr.P.C.

Section 162 Cr.P.C. specifically provides that no statement made by any

person to a police officer in the course of an investigation, shall, if reduce
to writing be signed by the person making it nor shall any such statement
or any record thereof, whether any police diary or otherwise or any part of
such statement or record be used for any purpose save as hereinafter
provided at any inquiry or trial in respect of any offence under investigation
at the time when such statement was made. However such statement may
be used by the accused or by the prosecution to contradict such witness in
the manner as provided by section 145 of the Indian Evidence Act 1872.

Q. What is the scope and ambit of the inherent power of the High Court
embodied under section 482 of the Cr. P. C?
Also
Write short notes on- Inherent power of court.

Ans: Section 482 Cr.P.C. provides provisions relating to the inherent

powers of the HC. Thus, according to this section-“saving of inherent
powers of HC-nothing in this code shall be deemed to limit or affect the
inherent powers of the HC to make such orders as may be necessary to
give effect to any order under this code or to prevent abuse of the process
of any code or otherwise to secure the ends of justice”.

It is obvious that this inherent power can be exercised only for either of
three purposes specifically mentioned in this section. This inherent power
cannot naturally be invoked in respect of any matter covered by the
specific provisions of the code. It is only if the matter in question is not
covered by any specific provisions of the code then section 482 Cr.P.C.

The scope and ambit of section 482 Cr.P.C. while exercising its provisions
should be governed by the following principles-

1. The power should be exercised very sparingly to prevent abuse of the

process of any court or otherwise to secure the ends of justice.

2. The power should not be exercised as against the express bar of law
and grafted in any other provision of the code.

3. The power is not to be resorted to, if there is a specific provision in the

code for redress of the grievance of the aggrieved party.

4. The power is to be exercised to do real and substantial justice. Section

482Cr.P.C. does not confer any arbitrary jurisdiction on the HC to act
according to its whim or caprice.
Q. What do you understand by arrest? How an arrest is made? When can
the police arrest a person without an order from a Magistrate and /or
without a warrant? Explain the rights of an arrested person.
Also
When a police officer may arrest without warrant? Can a police officer
pursue the offender for arresting him in another jurisdiction? Can a private
person arrest another person, if so what is the procedure? When a
Magistrate can arrest a person?

Ans: Arrest is the detention of a person by a competent authority

empowered to do so who is suspected to be involved in the alleged
offence. The main purpose of arrest is to secure the availability of the
alleged accused before the investigating authority for interrogation and
also to restrain him for commission of further crime or to prohibit him from
destroying any credible information/evidence which may go against him.

The word arrest when used in its ordinary or natural sense means the
apprehension or restrained or deprivation of once personal liberty to go
where he pleases. When used in the legal sense in the procedure
connected with criminal offences, an arrest consist of taking into custody of
another person under authority empowered by law, for the purpose of
holding or detaining him to answer a criminal charge and preventing the
commission of a criminal offence.

How is an arrest is made:

According to section 46 Cr.P.C. in making an arrest the police officer or

other person making the same shall actually touch or confine the body of
the person to be arrested unless there be a submission to the custody by
word or action, provided that where a woman is to be arrested unless the
circumstances indicate to the contrary, her submission to custody on an
oral intimation of arrest shall be presumed and, unless the circumstances
or otherwise require or unless the police officer is a female, the police
officer shall not touch the person of the woman for making her arrest.

If such person forcibly resist the endeavour to arrest him, or attempts to

evade the arrest, such police officer or other person may use all means
necessary to affect the arrest.

When can the police arrest a person without an order from a Magistrate
and /or without a warrant:

According to section 41Cr.P.C. any police officer may arrest any person
without an order from a Magistrate and without a warrant a person-

a. Who has been concerned in any cognizable offence, or against whom a

reasonable complaint has been made or credible information has been
received or a reasonable suspicion exits, of his having been so concerned;
or

b. Who has in his possession without lawful excuse, the burden of proving
which excuse shall lie on such person, any implement of house breaking;
or

c. Who has been proclaimed as an offender either under this code or by

order of the State Government; or

d. In whose possession anything is found which may reasonably be

suspected to be stolen property and who may reasonably be suspected of
having committed an offence with reference to such thing;
e. Who obstructs a police officer while in the execution of his duty; or who
has escaped, or attempts to escape from lawful custody;

f. Who is reasonable suspected of being a deserter from any of the Armed

Forces of the Union;

g. Who has been concerned in; or against whom a reasonable complaint

has been made, or credible information has been received or a reasonable
suspicion exits, of his having been concerned in, any act committed at any
place out of India which, if committed in India would have been punishable
as an offender, and for which he is under any law relating to extradition, or
otherwise, liable to be apprehended or detained in custody in India; or

h. Who, being a released convict, commits a breach of any rule made

under sub-section (5) of section 356; or

i. For whose arrest any requisition, whether written or oral, has been
received from another police officer, provided that the requisition specifies
the person to be arrested and the offence or other cause for which the
arrest is to be made and it appears from that the person might lawfully be
arrested without a warrant by the officer who issued the requisition.

Rights of an Arrested Person:

According to section 50 Cr.P.C. every police officer or other person

arresting any person without warrant shall forthwith communicate to him
full particulars of an offence for which he is arrested or other grounds for
such arrest.

Where a police officer arrest without warrant any person for a bailable
offence, he shall inform the person arrested that he is entitled to be
released on bail and that he may arrange for sureties on his behalf.

Further section 50A provides certain right to the arrested person as

follows:-

1. Every police officer or other person making the arrest shall forthwith give
the information regarding such arrest and place where the arrested person
is being held to any of his friends, relatives, or such other persons as may
be disclosed or nominated by the arrested person.

2. The police officer shall inform the arrested person of his rights under
sub-section (1) as soon as he is brought to the police station.
Section 41D Cr.P.C specifically mentioned the right of an arrested person
to meet an advocate of his choice during interrogation.

Section 49Cr.P.C. states that the person arrested shall not be subjected to
more restrain then it is necessary to prevent his escaped.

According to Section 55A Cr.P.C. asserts health and safety of an arrested

person upon the person having the custody of an accused to take
reasonable care of the health and safety of the accused.

According to Section 57 Cr.P.C. a person arrested not to be detained more

than 24 hours.

Can a police officer pursue the offender for arresting him in another
jurisdiction:

Yes, Section 48 Cr.P.C. provides the procedure and states that a police
officer may, for the purpose of arresting without warrant any person whom
he is authorised to arrest, pursue such person into any place in India.

Can a private person arrest another person:

Yes, According to section 43 Cr.P.C. any private person may arrest or

cause to be arrested any person who in his presence commits a non-
bailable and cognizable offence or any proclaimed offender, and, without
unnecessary delay, shall make over or cause to be made over any person
so arrested to a police officer or in the absence of a police officer, take
such person or cause him to be taken in custody to nearest police station.

When a Magistrate can arrest a person:

According to section 44 Cr.P.C speaks about when a Magistrate can arrest

a person. According to it, when any offences committed in the presence of
a Magistrate, whether executive or judicial, with his local jurisdiction he
may himself arrest or order any person to arrest the offender and may
thereupon commit the offender to custody.

Any Magistrate whether executive or judicial may at any time arrest or

direct the arrest in his presence within his local jurisdiction of any person
for whose arrest he is competent at the time in the circumstances to issue
a warrant.
Q. Write short notes on- Search warrant

Ans: Search warrant:

Section 93 Cr.P.C. provides the procedure for issuing a search warrant.

Thus, where any court has reason to believe that a person to whom a
summons or order under section 91 Cr.P.C. has been or might be
addressed, will not or would not produce the document or thing as required
by such summon or requisition or where such document or thing is not
known to the court to be in a position of any person or where the court
considers that for the purposes of any inquiry, trial or other proceeding
under this code will be served by a general search or inspection, it may
issue a search warrant is directed, may search or inspect in accordance
therewith and the provisions contained in this section.

Search warrant pursuant Section 93 Cr.P.C. obtained during an

investigation. This section comprehends a situation where search warrant
can be issued as the court is unaware not only the person but even the
place where the document may be found and a general search is
necessary. After going through the procedure and various aspects of
Section 93 Cr.P.C. it is understood that a search warrant can be issued
only in three cases-

1. Where the court has reason to believe that the person summoned to
produce a document or thing will not produce it.

2. Where the document or thing is not known to be in the possession of

any person.

3. Where a general inspection or search is necessary.

Q. Discuss the various provisions, of the Cr. P. C, as to accused persons

of unsound mind, with reference to the relevant sections.

Ans: The provisions regarding the accused persons of unsound mind has
been dealt with under chapter-XXV from section 328 Cr.P.C. to 339
Cr.P.C.

Section 328 Cr.P.C. states when a Magistrate holding an inquiry as reason

to believe that the person against whom the inquiry is being hold, is of
unsound mind and consequently incapable of making his defence, the
Magistrate shall inquire into the fact of such person to be examined by the
civil surgeon of the district or such other medical officer as the State
Government direct.

Section 329 Cr.P.C. states that if at the trial of any person before a
Magistrate or court of Sessions, it appears to the Magistrate or the court
that such person is of unsound mind and consequently incapable of
making his defence, the Magistrate or the court shall in the first instance try
the fact of such unsoundness and in capacity and if the Magistrate or the
court after considering such medical or other evidence as may be
produced before him is satisfied of the fact he shall record a finding to that
effect and shall postpone further proceeding in this case.

Section 330 Cr.P.C. states that whenever a person is found to be

incapable of entering into his defence by reason of unsoundness of mind
or mental retardation, the Magistrate or the court as the case may be,
shall, whether the case is one in which bail may be taken or not, order
release on such person of bail. Provided that such unsoundness or mental
retardation does not require any in-patient treatment and a friend or
relative undertakes to carry out patient psychiatric treatment.

Section 331 Cr.P.C. states that an inquiry or trial shall resume when the
accused seizes to be unsound mind.

Section 332 Cr.P.C. and section 333Cr.P.C. provides the procedure to be

followed or adopted by Magistrate/Court when the accused of unsound
mind is again appear or is again brought before the Magistrate or the Court
and if the court considers him capable of making his defence the inquiry
and trial shall proceed and if the accused ought to be tried by the Court of
Sessions, commit him for trial before the Court of Sessions.

Section 334 Cr.P.C. – whenever any person is acquitted upon the ground
that at the time of which he is alleged to have committed an offence, he
was, by reason of unsoundness of mind. Incapable of knowing the nature
of the act alleged as constituting the offence, or that it was wrong or
contrary to law, by finding shall state specifically whether the act
committed or not.

Q. Write short notes on- Power of Magistrate to award imprisonment in

default of fine.
Ans: Where a fine is imposed on the accused and it is not paid he can be
given a further term of imprisonment in addition to the one already
awarded. Section 30 Cr.P.C. defines the limit of a Magistrate’s power to
award such imprisonment, and lays down that such imprisonment –

a. cannot be in excess of the Magistrate’s powers under section 29

Cr.P.C., and

b. cannot exceed one-fourth of the term which the Magistrate is competent

to inflict as punishment for the offence, otherwise than as imprisonment in
default of payment of the fine.

According to section 65 IPC where an offence is punishable with

imprisonment and fine, the imprisonment in default of fine can only extend
to one-fourth of the maximum imprisonment that can be imposed.
According to section 67 IPC where offence is punishable with fine only, the
imprisonment in default of fine can be simple only, and must conform to
the following scale:

For fines upto Rs.50 -Imprisonment upto 2 months

For fines upto Rs.51-100 -Imprisonment upto 4 months
For fines upto 101 and above -Imprisonment upto 6 months

To this limitation the Cr.P.C. has added one more that the imprisonment
can only extend to one-fourth of the period of imprisonment which the
Magistrate is competent to award sentence.

Q. Discuss the special powers of High court and Sessions courts regarding
bail.

Ans: Section 439 Cr.P.C. specifically mentioned- 1.A HC or Court of

Session may direct-

a. that any person accused of an offence and in custody be released on

bail and if the offence is of the nature specified in sub-section(3) of section
437, may impose any condition which it considers necessary for the
purposes mentioned in that sub-section.

b. that any condition imposed by a Magistrate when releasing any person

on bail be set aside or modified:

Provided that the HC or the Court of Session shall, before granting bail to a
person who is accused of an offence which is triable exclusively by the
Court of Session or which, though not so triable, is punishable with
imprisonment for life, give notice of the application for bail to the Public not
practicable to give such notice.

2. A HC or Court of Session may direct that any person who has been
released on bail under this chapter be arrested and commit him to custody.

Section 439 Cr.P.C. provides unfettered discretion to the HC and Court of

Session to admit and accused person to bail, but that discretion must be
exercised judicially. The power of the HC and the Court of Session to grant
bail is not fettered by the restrictions contained in Section 437 Cr.P.C. In
every case it is the cumulative effect of all the combined circumstances
that must weigh with the court and those consideration are far too
numerous to be classified or categorised. In exercising his discretion under
this section, the HC need not confine its attention to the questions whether
the prisoner is or is not likely to abscond, as other circumstances may also
affect the questions of granting bail to person accused of having committed
crimes of a grave and serious nature.

Q. Write short notes on- Irregularities which do not vitiate proceedings.

Ans: Irregularities which do not vitiate proceedings:

Section 460 Cr.P.C. cures nine kinds of irregularities, provided they are
caused erroneously and in good faith. A further qualification is implied,
though it is not expressly stated in this section i.e. they should not
occasion the failure of justice. The section deals with acts done by
Magistrate in no way empowered by law to do those acts, it has no
reference to a Magistrate empowered under the act to do an act but not
possessing jurisdiction over the offence.

Section 460 Cr.P.C. states the following irregularities which do not vitiate
proceeding. If any Magistrate not empowered by law to do any of the
following things namely-

a. to issue search warrant under section 94;

b. to order under section 155, the police to investigate an offence;

c. to hold an inquest under section 176;

d. to issue process under section 187, for the apprehension of a person
within his local jurisdiction who committed an offence outside the limits of
such jurisdiction;

e. to take cognizance of an under clause (a) or clause (b) of sub-section

(1) of section 190;

f. to make over a case under sub-section (2) of section 192

g. to tender a pardon under section 306;

h. to recall a case and try it himself under section 410;

i. to sell property under section 458or 459;

Erroneously in good faith does that thing his proceedings shall not set
aside mere on the ground of his not being so empowered.

Q. Write short notes on- Irregularities which vitiates proceedings.

Ans: Irregularities which vitiates proceedings:

Section 461 Cr.P.C. speaks of the irregularities which vitiate proceedings

have no existence in point of law that means the Magistrate has no initial
jurisdiction to try the matter.

Section 461 Cr.P.C.specifically mentioned if any Magistrate, not being

empowered by law in this behalf, does any of the following things, namely-

a. attaches and sells property under section 83;

b. issues of search warrant for a document, parcel or other thing in the

custody of a postal or telegraph authority;

c. demands security to keep the peace;

d. demands security for good behaviour;

e. discharges a person lawfully bound to be of good behaviour;

f. cancels a bond to keep the peace;

g. makes an order for maintenance;

h. makes an order under section 133 as to local nuisance;

i. prohibits, under section 143, the repetition or continuance of a public

nuisance;

j. makes an order under part C or part D of chapter X;

k. takes cognizance of an offence under clause (c) of sub-section (1) of

section 190;

l. tries an offender;

m. tries an offender summarily;

n. passes a sentence under section 325, on proceeding recorded by

another Magistrate;

o. decides an appeal;

p. calls under section 397, for proceedings; or

q. revises an order passed under section 446, his proceedings shall be

void.

Q. Who are the persons entitled to get maintenance U/S 125 Cr. P. C and
under what circumstances? Can Magistrate make alteration of the
allowance? If so, how?

Ans: Section 125 Cr.P.C. is a measure for social justice and specially
enacted to protect woman and children and also old and infirmed parents.
This section gives effect to natural and fundamental duty of a man to
maintain his wife, children and parents so long as they are unable to
maintain themselves.

According to Section 125 Cr.P.C. the following persons are entitled to get
maintenance in the case any person having sufficient means neglects or
refuses to maintain-

a. his wife, unable to maintain herself;

b. his legitimate or illegitimate minor child whether married or not unable to
maintain itself;

c. his legitimate or illegitimate child ( not being a married daughter who has
attained majority, where such child is, by reason of any physical or mental
abnormality or injury unable to maintain itself;

d. his father or mother, unable to maintain himself or herself.

Circumstances under which maintenance may be claimed:

The abovementioned four categories of persons are entitled to get
maintenance on the following circumstances:

a. The person from whom maintenance is claimed should have sufficient

means.

b. In spite of having sufficient means the person neglects or refuses to

maintain.

c. The condition of sufficient means and neglects or refusal to maintain

must be proved.

Magistrate’s power to alter the allowance:

According to section 127 Cr.P.C. the Magistrate is empowered to alter the
allowance which has already been ordered earlier on proof of change in
the circumstances in various way as mentioned in the section itself which
include-

i. A Magistrate may alter, cancel or vary the earlier order passed under
section 125 Cr.P.C. in consequences of any decision of a competent civil
court.

ii. Where the Magistrate has passed an order of maintenance in favour of a

woman under section 125 Cr.P.C, the Magistrate may alter the allowance
in the following way- a Magistrate shall cancel the woman after her
divorced re-married another person.

iii. The Magistrate shall cancel the maintenance if the woman has obtained
a divorce from her husband and she had voluntarily surrender her rights of
maintenance or interim maintenance.

Q. Outline the procedure of trial of an accused who is a public servant.

Ans: Generally, the trial of an accused person is almost same for all
categories of person depending upon the nature of offence as provided by
various relevant sections of Cr.P.C. with exception to that of the public
servant.

Section 197 Cr.P.C. provides certain specific pre-conditions which are to

be complied with before proceeding for a trial of a public servant. This
section is intended to guard against vexatious proceeding against Judges,
Magistrates, Public servant not removable from office except by or with the
sanction of the government and members of the armed forces without the
sanction of the higher authority.

Section 197 Cr.P.C. provides that when any person who is or was a judge
or Magistrate or a public servant not removable of a office save by or with
the government is accused of an any offence alleged to have been
committed by him while acting or purporting to act in the discharge of his
office duty, no court shall take cognizance of such offence except with
previous sanction of the central government or the State Government as
the case may be. Again, no court shall take cognizance on any offence
alleged to have been committed by any member of the armed forces of the
union while acting or purporting to act in the discharge of his official duty,
except with the previous sanction of the central government.

In case of offences under sub-section 166(A), 166(B), 354, 354A to 354D,

370, 375, 376, 376A, 376C, 376D and 509 IPC, no previous sanction is
required in case of trial of public servant.

Q. State the provision regarding appeal against acquittal.

Ans: The law restricting the right of appeal against the judgment of
acquittal prevents personal vindictiveness from seeking to calling question
judgments of acquittal by way of appeal. The government will interfere only
where there is a grave miscarriage of justice.

Section 378 Cr.P.C. provides the provisions regarding appeal against

acquittal. According to this section the following are the relevant points for
appeal against acquittal

a. The District Magistrate in any case, direct the public prosecutor to

present an appeal to the Court of Session for an order of acquittal passed
by a Magistrate in respect of a cognizable and non-bailable offence.
b. the State Government may, in any case direct the public prosecutor to
present an appeal to the HC from an original or appellate order of an
acquittal by any court other than HC or an order of acquittal passed by the
Court of Session in revision.

c. No appeal to the HC shall be entertained except with the leave of the

HC.

d. If, such an order of acquittal is passed in any case instituted upon any
complain and the HC, on an application made to it by the complainant in
this behalf, grants special leave to appeal from the order of acquittal, the
complainant present such an appeal to the HC.

e. No application for the grant of special leave to appeal from an order of

acquittal shall be entertained by the HC after the expiry of six months,
where the complainant is a public servant and sixty days in every case,
computed from the date of that order of acquittal.

f. If, in any case, the application for the grant of special leave to appeal
from an order of acquittal is refused, no appeal from that order of acquittal
shall lie under sub-section (1) or (2) of section 378.

Q. Describe the procedure to be followed by a Magistrate when a dispute

concerning land is likely to cause breach of peace? How should a
Magistrate decide dispute concerning right of use of land and water?

Ans: The procedure to be followed by a Magistrate when a dispute

concerning land contained in Section 145 Cr.P.C., this section relates to
the disputes regarding possession or right of use of land or water which
can easily land themselves to breach of the peace. The business of the
Magistrate is not to go into the questions of title, but to meet the urgency of
the situation by maintaining the party in possession. The Magistrate can,
therefore, call upon the parties to put in written statement in support of
their claim to actual position. The order is to be served as a summons. The
Magistrate is to pursue the statements, here the parties and weigh the
evidence, in order to ascertain, who was in possession at the relevant
point of time. If possession has been wrongfully taken within two months of
the police report for other information or after that date and before the date
of his order, the person so dispossessed is to be taken as the person in
possession. When the subject matter is liable to speedy and natural decay
it may be sold, and the sale-proceeds can be dealt with as the Magistrates
thinks fit. If the Magistrate is satisfied that no dispute exists, he can drop
the proceeding.
Dispute regarding/concerning right of use of land and water:

Section 147 Cr.P.C. provides the procedure regarding how a Magistrate

should decide the dispute right of use of land or water. Whenever, an
executive Magistrate is satisfied from the report of a police officer or upon
other information that a dispute likely to cause a breach of the peace exist
regarding any alleged right of use of land or water within his local
jurisdiction he shall make an order in writing stating the grounds of his
being so satisfied and requiring the parties concerned in such dispute to
attend his court in person or by pleader on specified date and time and to
put in written statement of their respective claim.

Q. Write short notes on- Complaint.

Ans: Section 2(d) Cr.P.C. specifically mentioned Complaint means any

allegation made orally or in writing to a Magistrate, with a view to his taking
action under this code, that some person, whether known or unknown, has
committed an offence, but does not include a police report.

Q. Write short notes on- Police Station.

Ans: Section 2(s) Cr.P.C. specifically mentioned that “Police Station”

means any post or place declared generally or specially by the State
Government, to be Police Station, and includes any local area specified by
the State Government in this behalf.

Q. Write short notes on- Summons Case.

Ans: Section 2(w) Cr.P.C. specifically mentioned that “summon-case”

means a case relating to an offence, and not being a warrant case.

Q. Write short notes on- Warrant Case.

Ans: Section 2(x) Cr.P.C. specifically mentioned that “warrant-case” means

a case relating to an offence, punishable with death, imprisonment for life
or imprisonment for a term exceeding two years.

Q. Write short notes on- Charge-sheet.

Ans: Charge-sheet:
Section 173 Cr.P.C., report submitted under this section is called
‘completion report’ or ‘charge- sheet’. The police charge-sheet
corresponds to a complaint made by a private person on which criminal
proceedings are initiated. Submission of charge-sheet means that the
preliminary investigation and preparation is over and the Magistrate can
then take cognizance of the offence. After the filing of the charge-sheet
under section 173 and the posting of the case for further cross-
examination there can be no further investigation into the case by the
police. Charge-sheet is not a complete or accurate basis of the prosecution
case. Inordinate delay in submitting final report may lead to the grievance
that the investigation is carried on unfairly or with some ulterior motive.

Q. Write short notes on – Compoundable and non-compoundable

offences.

Ans: Compoundable Offence:

Compoundable offences are classified under section 320 Cr.P.C.,
compoundable offences are those offence which are less serious in nature.
Compoundable offences mostly affect private persons. Compoundable
offences are mainly of two types namely- (1) compoundable with the
permission of the court (2) Compoundable without the permission of the
court.
Compoundable offences can be compromised by the victim and the
offender, with or without the permission of the court. Under a
Compoundable offence, upon a compromise, the offender is acquitted
without any trail.

Non-compoundable Offence:
Non-compoundable Offences are classified under criminal procedure code.
Non-compoundable Offences are those offences which are serious in
nature. Under a Non-compoundable Offence, a private party as well as the
society, both are affected by such offences. Under a Non-compoundable
Offence, no compromise is allowed. Even the court does not have the
authority and power to compound such offence.

Under a Non-compoundable Offence, full trail is held which ends with the
acquittal or conviction of the offender, based on the evidence given.

Q. Distinguish between summons procedure and warrant procedure with

reference to the relevant provisions of Cr. P. C.
Also
Write short notes- Difference between warrant case and summons case.
Ans: The difference between Warrant case and Summons case as follows:

Warrant Case--
--Warrant case’ means a case relating to an offence punishable with
death, imprisonment for a term exceeding two years.

Procedure for warrant case is prescribed under chapter XIX of Cr.P.C.

In a warrant case, charge is to be framed against the accused and the
adjudication follows the charge. He is to be adjudged either innocent or
guilty.
In a warrant case, the charge has to be framed and thereafter the accused
may plead guilty and the Magistrate in his discretion may convict him.
(section 241 Cr.P.C.).
In warrant case, the Magistrate may discharge the accused if-
(a) the complainant is absent,
(b) no charge is framed,
(c) the offence is compoundable or non cognizable (section 249
Cr.P.C.).
A warrant case cannot be converted into a summons case if in the course
of trial, it is found that summons case is to be followed.
The warrant case is to be preferred if the charge reveals both summons
and warrant case.
In warrant case, the complainant or the Prosecution officer may, with the
consent of the court, withdraw the remaining charges against the accused
when the accused has been charged with several offences and convicted
of one or more of them (sec224 CrPC).

Summons Case

‘Summons case’ means a case relating to an offence, and not being

warrant case.
Procedure for summons case is prescribed under chapter XX of Cr.P.C.
In a summon case, charge need not be framed, though the particulars of
the offence which he is accused of are to be stated to him, (section 251
Cr.P.C.).
The accused may be acquitted on the non-appearance or death of the
complainant. (section 256 Cr.P.C.)
A summons case can be converted into a warrant case (section 259
Cr.P.C.).
The complainant may, with the permission of the Magistrate, withdraw his
complaint against the accused (section 257 Cr.P.C.).
Q.Write short notes- cognizable offence and non-cognizable offence.

Ans:Cognizable Offence:

According to section 2(C)Cr.P.C. specifically mentioned- “cognizable

offence” means an offence for which and “cognizable case” means a case
in which, a police officer may, in accordance with the First Schedule or
under any other law for the time being in force, arrest without warrant.

Non-Cognizable Offence:
According to section 2(I) Cr.P.C. specifically mentioned- “non-cognizable
offence” means an offence for which, and “non-cognizable case” means a
case in which, a police officer has no authority to arrest without warrant.

Difference between Cognizable and Non-cognizable offences are:

Cognizable offences
1. “Cognizable offence” means an offence for which a police officer may, in
accordance with the First Schedule or under any other law for the time
being in force, arrest without warrant.
2. In these offences, a police officer can take cognizance for arrest without
any permission or order from the Magistrate.
3. If among two or more offences one is cognizable, the whole case shall
be deemed to be a cognizable case.
4. These are offences for which punishment is imprisonment of three years
or upwards, according to 1st schedule of Cr.P.C.

Non-cognizable offences
1. “Non-cognizable offence” means an offence for which a police officer
has no authority to arrest without warrant.
2. In these offences, a police officer cannot take cognizance for arrest
without any permission or order from the Magistrate.
3. If among two or more offences one is non-cognizable, the whole case
shall not be deemed to be a non-cognizable case.
4. These offences are punishable with imprisonment of less than three
years.

Q. Distinguish between reference and revision. State the courts which can
exercise jurisdiction in revision. Discuss, how the powers in revision differ
from the powers in disposing of a reference?
Also
Discuss when a court subordinate to High court is required to make a
reference to the High court. What are the conditions to be satisfied?
Examine the general principles regarding revisions and discuss the power
of revision by the High court and the Court of Sessions.

Ans: The difference between reference and revision are as follows:

Reference
1. It is permissible when a pending case involves a substantial question as
to the validity of any Act, Ordinance or Regulation or any provision therein,
or on a question of law which has not been settled.
2. Reference can be made only in pending case.
3. Reference can be made to High Court only.
4. A subordinate court will make reference only when it is satisfied that the
question involved is real and substantial.

Revision
1. It lies on a question of law relating to the correctness, legally or propriety
of any finding, sentence or order as to the regularity of any proceedings.
2. Revision lies both in pending and decided cases.
3. Revision can be filed before a High Court or a Court or a Court of
Session.
4. The object of the revision is to confer upon superior criminal courts a
kind of paternal or supervisory jurisdiction in order to correct miscarriage of
justice.

The Court that can exercise jurisdiction in revision:

According to section 397 Cr.P.C., the HC or the session court may

exercise jurisdiction in revision and may call for and examine the record of
any proceeding before any inferior criminal court situate within its or his
local jurisdiction for the purpose satisfying itself or himself as to the
correctness, legality propriety of any finding, sentence or order of inferior
court.

when a court subordinate to High court is required to make a reference to

the High court. What are the conditions to be satisfied:

Under sub-section (1) of 395 Cr.P.C., a reference is made by a

subordinate court to the HC. For making a reference to the HC the
following conditions are necessary.
i. A case must be pending before the court making the reference.

ii. The court making reference must be satisfied that the determination of
that case involves a question as to the validity of-
a. any Act, Ordinance or Regulation, or
b. any provision contained in an Act, Ordinance or Regulation.

iii. The determination of validity of any such Act, Ordinance, Regulation or

any provision thereof must be necessary for the disposal of the case.

iv. The Court making reference must be of the opinion that such Act,
Ordinance, Regulation or any provision thereof is invalid or inoperative.

v. Till the date of reference, the Act, Ordinance, Regulation or any such
provision thereof must not have been declared as invalid by the HC to
which that court is subordinate or by the Supreme Court.

When the above conditions are fulfilled the court making reference shall a
case and make a reference to the HC. The Court shall also set out its own
opinion and give reasons in support thereof while making a reference. But
the subordinate court cannot make a reference on the ground that a
different view of law was taken by some other HC. It must follow the law
laid down by the HC to which that court is subordinate.

General Provision/Principle regarding revision:

Section 397 Cr.P.C. to section 401 Cr.P.C. deal with what is known as the
revisional jurisdiction the power to call for record of inferior criminal courts
is conferred on two kinds of court HC and the sessions Judge. The
grounds on which the power can be exercised are in two ways:

a. Where the finding, sentence or order is illegal or improper.

b. Where the proceeding are irregular

According to section 397 Cr.P.C. provides (1)the HC or any Session Judge

may call for and examine the record of any proceeding before any inferior
C Criminal Court situate within its or his local jurisdiction for the purpose of
satisfying itself or himself as to the correctness, legality or propriety of any
finding, sentence or order, recorded or passed, and as to the regularity of
any proceedings of such inferior Court, and may, when calling for such
record, direct that the execution of any sentence or order be suspended,
and if the accused is in confinement that he be released on bail or on his
own bond pending the examination of the record.

2. The powers of revision conferred by sub-section (1) shall not be

exercised in relation to any interlocutory order passed in any appeal,
inquiry, trial or other proceeding.

3. If an application under this section has been made by any person either
to the HC or to the Sessions Judge, no further application by the same
person shall be entertained by the other of them.

Power of revision by High Court:

Under section 401 Cr.P.C. the HC power of revision states when the
record of any proceeding is called for by the HC under section 397 Cr.P.C.
it will exercise in its discretion any of the powers conferred on a court of
Appeal or on a Court of Sessions this jurisdiction is very wide. Under it the
court may interfere to test the correctness, legality or even the propriety of
any finding, sentence or order.

Nothing in this section shall be deemed to authorise a HC to convert a

finding of acquittal into one of conviction.

Where under this code, an appeal lies and no appeal is brought, no

revision shall be entertained by the party who could have appeal.

Where under this code an appeal lies but an application for revision has
been made to the HC by any person and the HC is satisfied that such
application was made under the erroneous belief that no appeal lies
thereto and that it is necessary in the interests of justice so to do, the HC
may treat the application for revision as a petition of appeal and deal with
the same accordingly.

Power of revision by Court of Sessions:

In the case of any proceeding the record of which has been called for by
himself, the Sessions Judge may exercise all or any of the powers which
may be exercised by the HC under sub-section (1) of section 401 Cr.P.C.

Where any proceeding by way of revision is commenced before the

Sessions Judge, the provisions of section 401 Cr.P.C. shall so far as may
be apply to such proceeding and in such case reference to the Sessions
Judge.
Q. Write short notes on- Bailable and Non-Bailable offence.

Ans: Bailable offence:

Section 2(a) Cr.P.C. speaks “bailable offence” means an offence which is

shown as bailable in the First Schedule, or which is made bailable by any
other law for the time being in force.

Non-Bailable Offence:

Section 2(a) Cr.P.C.,non-bailable offence means any offence other than

bailable offence. Non-bailable does not mean that bail can in no case be
granted. It only means that bail can be granted on the discretion of the
court.

Difference between bailable and non-bailable offences are as follows:

Bailable
1. “Bailable offence” means an offence which is shown as bailable in the
First Schedule, or which is made bailable by any other law for the time
being in force.
2. These offences are generally regarded as less grave and serious.
3. In this, bail is a matter of right and bail can be granted by police station.

Non-bailable
1. “Non-bailable” offence means any offence which is not bailable.
2. These offences are grave serious.
3. In this, bail is a matter of discretion of court.

Q. Write short notes on- Discharge and Acquittal.

Also
Q. Write short notes on- Discharge and acquittal of accused.
Ans:Discharge: Section 227 Cr.P.C., after considering the case record and
hearing the submission of the accused as well as the prosecution if the
Judge finds no sufficient ground to proceed further, the accused shall be
discharge.

Acquittal:
Section 232 Cr.P.C., If, after taking the evidence examining the accused
and hearing the prosecution and the defence on the point, the Judge
considers that there is no evidence against the accused that has
committed the offence, the Judge shall acquit the accused.
Difference between Acquittal and Discharge:
Acquittal
1. A person once acquitted cannot be rearrested.
2. An acquittal may also result from absence of the complainant, or
withdrawal, or a compounding of offence.
3. An order of acquittal is a judicial decision, after full inquiry establishing
the innocence of the accused.
4. An order of acquittal is in the nature of a judgment.
5. An acquittal bars a second trial on the same facts and for the same
offence, or on the same facts for any other offence for which different
charges from the one made against the accused might have been made
under section 221 (1) of the code.

Discharge
1. A person discharge can be rearrested and committed for a further
enquiry.
2. When a Magistrate proceeds with less serious offence, it amounts to a
discharge of graver charge and the accused can be directed to be
committed.
3. An order of discharge simply means that there is no prima facie
evidence against the accused to justify further enquiry in relation to the
charge; such order does not establish anything regarding the guilt of the
accused.
4. A discharge does not bar the institution of fresh proceeding when new or
better evidence become available against the accused.

Q. Write short notes on- Inquiry and Investigation.

Ans: Inquiry:
Section 2(g) Cr.P.C., “inquiry” means every inquiry other than a trial,
conducted under this code by a Magistrate or Court.

Investigation:
Section 2(h) Cr.P.C., “investigation” includes all the proceedings under this
code for the collection of evidences conducted by a police officer or by any
person (other than the Magistrate) who is authorised by Magistrate in this
behalf.

Difference between inquiry and Investigation are as follows:

Inquiry
1. An inquiry relates to a proceeding held by a Court or Magistrate.
2. An inquiry starts by asking questions by inspection and study of
available evidence.
3. Inquiry aims at determining the truth or falsity of certain facts.
4. It may be judicial or non-judicial.
5. It may start with shadowy beginnings and vague rumours.

Investigation
1. An investigation relates to the steps taken by a Police officer or a
person, other than a Magistrate, who is authorised by a Magistrate for the
purpose.
2. An investigation is thorough attempt to learn the facts about something
complex or hidden.
3. The objective of investigation is collection of evidence.
4. It can never be judicial.
5. It starts when a police officer forms a definite opinion that these grounds
for investigating facts.

Q. Distinction between inquiry and trial.

Ans: Following are the difference between inquiry and trial:

Inquiry
1. “Inquiry” means every inquiry other than a trial, conducted under this
code by a Magistrate or Court.( Section 2(g) Cr.P.C.)
2. Inquiry has various endings depending upon circumstances.
3. ‘Inquiry’ relates to offences and matters which are not offences.
4. the term ‘inquiry’ is used in the wider sense to include every kind of
inquiry.
5. It covers the proceedings upto the stage when they can result in a
discharge.
6. Inquiry precedes trial.
7. Inquiry is the second stage.

Trial

1. “Trial” has not been defined in the code. It is the conclusion of questions
in issue in a legal proceeding by a competent tribunal.
2. It is a judicial proceeding which ends in conviction or acquittal.
3. ‘Trial’ presupposes the idea of offences.
4. ‘Trial’ denotes two things-
a. trial of controversy arising from an issue;
 b. trial of election petition or complaint.
5. It covers the proceedings till the Court comes to a conclusion resulting
in conviction or acquittal.
6. Trial follows inquiry.
7. Trial is the third stage in a criminal case.

Q. What is the difference between FIR and Complaint

Ans: Difference between FIR and Complaint are as follows:

FIR
1. The first information is given to an officer-in-charge of a police station.
2. A first information report must relate to a cognizable offence on the face
of it.
3. A Magistrate cannot take cognizance on a first information.
4. The first information of an offence may be given by any body, including
a police officer.
5. First Information Report cannot become complaint.

Complaint
1. In complaint the allegation is made orally or in writing to a magistrate.
2. A complaint may relate to a cognizable or non-cognizable offence.
3. A Magistrate takes cognizance of an offence on a complaint made to
him.
4. A complaint does not include the report of a police officer.
5. A complaint may become First Information Report.