Q.

Describe the organization of police, prosecutor,

defense counsel and prison authorities and their
functions, duties, and powers.

Police
The ordinary criminal courts derive their existence from CrPC. However, CrPC does not say anything about the
constitution of Police. It assumes the existence of police and devolves various powers and responsibilities on to it.

Functions -
As per The Police Act, 1861, the police force is an instrument for the prevention and detection of crime.

Organization -
Every state establishes its own police force which is formally enrolled. The force consists of such number of officers
and men and is constituted in such manner as the state govt. may decide from time to time. The overall
administration of police in the entire state is done by Director General of Police. The administration of police in a
district is done by District Superintendent of Police under the general control and direction of District Magistrate who
is usually the Collector of the district. Every police officer appointed to the police force, other than Inspector General
of Police and District Superintendent of Police, receives a certificate in prescribed form by virtue of which he is vested
with the powers, functions and privileges of a police officer.

The Police Act, 1888 also empowers the Central Govt to create special police districts and to extend the jurisdiction
of police of any state to that district. The Police Act 1949, creates a police force for Union Territories.

Powers -
1. The Cr P C confers specific powers on the members of police force who are enrolled as police officers. These
powers include power to make an arrest, search, and investigate. Wider powers have been given to police officers in
charge of a police station. As per Section 2(s), police station means any post or place that is generally or specially
designated by the state govt as a police station. Further, as per Section 2(o) officer in charge of a police station
includes the officer who is present at the police station and is next in rank to the police officer in charge, if he is on
leave or is absent. This only increases the importance of the police officer in charge of a police station.
2. Section 36 of CrPC specifies that officers of police who are superior in rank to police officer in charge of a police
station can exercise all the powers of that police officer. In the case of State of Bihar vs J A C Saldanha SCC 1980,
SC held that if the Inspector General (Vigilance) is an officer superior to the officer in charge of the police station he
can exercise the powers of that officer through out the territory to which the superior officer has been appointed,
which, in this case is the entire territory of Bihar.

Duties -

Prosecutor
A crime is a wrong not only against an individual but is also against the society. It is because of this reason that the
state, which represents the collective of people, participates in the criminal trial of an accused, specially if the crime is
of cognizable nature. Public Prosecutor or Assistant Public Prosecutor is the state counsel for such trials. As per
section 2(u), Public Prosecutor means any person appointed under Section 24 and includes any person acting under
the directions of the public prosecutor. Section 24 of CrPC specifies the rules for appointment of Public Prosecutor. A
person shall be eligible to be appointed in High Court as Public Prosecutor if he has been in practice as an advocate
for not less than seven years. The appointment can be made only after consultation with the High Court. Further, the
central govt. can appoint a Public Prosecutor for conducting in a high court any prosecution, appeal, or other
proceeding on behalf of the Central Govt.

Assistant Public Prosecutor are appointed under Section 25. It authorizes the State Govt. to appoint one or more
APPs for every district for conducting any case in Court of Magistrates. No police officer is allowed to be appointed as
APP.

Duties -
Duty of a public prosecutor mainly consists in conducting the prosecution on behalf of the state. His goal is not merely
to produce a conviction but the help the court arrive at a just decision. He also appears as the state counsel in
criminal appeals, revisions, and such other matters in the Session Courts and High Court. It is important to note that
he does not appear on behalf of the accused.

Powers -
1. As per Section 301, a Public Prosecutor or Assistant Public Prosecutor has the authority to appear and plead
before any court in any case entrusted to him.
2. As per Section 321, he can withdraw from the prosecution against any person with the consent of the court.
According to the pattern set by CrPC, Public Prosecutors conduct the proceedings in Session Courts and the High
Courts and Assistant Public Prosecutors are appointed for conducting prosecution in Magistrates' Courts. As per
prevailing practice, in respect of cases initiated on police reports, the prosecution is conducted by the APP and in
cases initiated on a private complaint the prosecution is either conducted by the complainant himself or by his duly
authorized counsel.

Defense Counsel
As per Section 303, any person accused of an offence before a Criminal Court has a right to be defended by a
pleader of his choice. Such pleaders are not in regular employment of the state and a paid remuneration by the
accused person. Since, a qualified legal practitioner on behalf of the accused is essential for ensuring a fair
trial, Section 304 provides that if the accused does not have means to hire a pleader, the court shall assign a pleader
for him at state's expense.

At present there are several schemes through which an indigent accused can get free legal aid such as Legal Aid
Scheme of State, Bar Association, Legal Aid and Service Board, and Supreme Court Senior Advocates Fee Legal Aid
Society. The Legal Services Authorities Act, 1987 also provides free legal aid for the needy.

Prison Authorities
CrPC presumes the existence of Prisons and Prison authorities. The code empowers magistrates and judges under
certain circumstances to order detention of under trial prisoners in jail during the pendency of proceedings. The code
also empowers the courts to impose sentences of imprisonment on convicted persons and to send them to prison
authorities. However, the code does not make specific provisions for creation and administration of prison authorities.
These matters are dealt with in separate acts such as The Prisons Act 1894, The Prisoners Act, 1900, and the
Probation of Offenders Act 1958.

Q. What do you understand by Arrest? How is an
arrest 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.
[Right to know the grounds of arrest - Art 22(1), Sec
50, 50(A), Right to consult and to be defended by legal
practitioner of his choice - Art 22(1), Sec 303, Right to
legal aid - Art 21, Sec 304, Right to bail Sec 50(2),
Right to be produced before nearest magistrate within
24 hrs - Art 22(2) Sec 56, 57, Right not to be detained
in custody beyond 24 hrs - Art 22(2) Sec 57, 167, Right
to be examined by medical practitioner]

Arrest means apprehension of a person by legal authority so as to cause deprivation of his liberty. Thus, after arrest,
a person's liberty is in control of the arrester. Arrest is an important tool for bringing an accused before the court as
well as to prevent a crime or prevent a person suspected of doing crime from running away from the law. Cr P C
contemplates two types of arrests - an arrest that is made for the execution of a warrant issued by a magistrate and
an arrest that is made without any warrant but in accordance with some legal provision that permits arrest.

Section 41 to 44 contain provisions that govern the arrest of a person by police and private citizens, while Section
46 describes how an arrest is a made.

(Note - Arrest in case of Warrant is discussed in another question.)

Arrest without warrant
There are situations when a person may be arrested by a police officer, a magistrate or even private citizen without a
warrant. These are described in Section 41, 42, 43, and 44 as follows -

Arrest by Police - Section 41. When police may arrest without warrant (CIPSODOBO)
(1) Any police officer may without an order from a Magistrate and without a warrant, arrest any 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 exists, of his having been so concerned; or
(b) who has in his possession without lawful excuse, the burden of proving which excuse shall lie on such person,
any implement of house-breaking; or
(c) who has been proclaimed as an offender either under this Code or by order of the State Government; or
(d) in whose possession anything is found which may reasonably be suspected to be stolen property and who may
reasonably be suspected of having committed an offence with reference to such thing; or
(e) who obstructs a police officer while in the execution of his duty, or who has escaped, or attempts to escape, from
lawful custody; or
(f) who is reasonably suspected of being a deserter from any of the Armed Forces of the Union; or
(g) who has been concerned in, or against whom a reasonable complaint has been made, or credible information has
been received, or a reasonable suspicion exists, of his having been concerned in, any act committed at any place out
of India which, if committed in India, would have been punishable as an offence, and for which he is, under any law
relating to extradition, or otherwise, liable to be apprehended or detained in custody in India; or
(h) who, being a released convict, commits a breach of any rule made under sub-section (5) of section 356; or
(I) for whose arrest any requisition, whether written or oral, has been received from another police officer, provided
that the requisition specifies the person to be arrested and the offence or other cause for which the arrest is to be
made and it appears therefrom that the person might lawfully be arrested without a warrant by the officer who issued
the requisition.
(2) Any officer in charge of a police station may, in like manner, arrest or cause to be arrested any person, belonging
to one or more of the categories of persons specified in section 109 or section 110.

In the case of Joginder Kumar vs State of UP, CrLJ, 1994, it was held that no arrest can be made merely because
it is lawful to do so. There must be a justifiable reason to arrest. Further, in State vs Bhera, CrLJ, 1997, it was held
that the "reasonable suspicion" and "creditable information" must relate to definite averments which must be
considered by the Police Officer himself before he arrests the person.


Section 42 allows a police officer to arrest a person for a non-cognizable offence, if he refuses to give his name and
residence. As per Section 42(1), when any person who, in the presence of a police officer, has committed or has
been accused of committing a non-cognizable offence refuses, on demand of such officer, to give his name and
residence or gives a name or residence which such officer has reason to believe to be false, he may be arrested by
such officer in order that his name or residence may be ascertained.
However, as per sub clause (2), the person must be released when the true name and residence of such person
have been ascertained. He may be required to execute a bond, with or without sureties, to appear before a
Magistrate if necessary.

Provided that, if such person is not resident in India, the bond shall be secured by a surety or sureties resident in
India.
Further, as per sub clause (3), should the true name and residence of such person not be ascertained within twenty-
four hours from the time of arrest or should he fail to execute the bond, or, if so required, to furnish sufficient sureties,
he shall forthwith be forwarded to the nearest Magistrate having jurisdiction.


Arrest by Private person
Even private persons are empowered to arrest a person for protection of peace in certain situations. This is important
because police cannot be present at every nook and corner and it is up to private citizens to protect the society from
disruptive elements or criminals. As per section 43(1), 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 the nearest police station. Thus,
if a person is drunk and is committing assault on others, he may be rightly arrested by any citizen and taken to the
nearest police station.

However, it is important to note that this power can be exercised only when the person making an arrest is under a
bona fide impression that a non-bailable and cognizable office is being committed in his presence. One does not
have a right to arrest on mere suspicion or on mere opinion that an offence has been committed.

Procedure on arrest by private person -
As mentioned above, the private person must take the arrested person to the police officer or police station without
any reasonable delay. If he keeps the person in his own custody, he will be guilty of wrongful confinement as given in
Section 342 of IPC.
As per section 43(2), If there is reason to believe that such person comes under the provisions of section 41, a police
officer shall re-arrest him. Further, as per section 43(3), if there is reason to believe that he has committed a non-
cognizable offence, and he refuses on the demand of a police officer to give his name and residence, or gives a
name or residence which such officer has reason to believe to be false, he shall be dealt with under the provisions of
section 42; but if there is no sufficient reason to believe that he has committed any offence, he shall be at once
released.

A new provision has been incorporated as Section 50A, which makes it obligatory for the police officer or any other
person making an arrest to give the information regarding such arrest and place where the arrested person is being
held to any of his friends, relatives or such other persons as may be disclosed or nominated by the arrested person
for the purpose of giving such information. Further, the police officer shall inform the arrested person of his rights
under subsection as soon as he is brought to the police station. He must make an entry of the fact as to who has
been informed of the arrest of such person in a book to be kept in the police station in such form as may be
prescribed in this behalf by the State Government. It is the duty of the Magistrate before whom such arrested person
is produced, to satisfy himself that the requirements of this section has been complied with in respect of such
arrested person.

Arrest by Magistrate
As per Section 44(1), when any offence is committed in the presence of a Magistrate, whether Executive or Judicial,
within his local jurisdiction, he may himself arrest or order any person to arrest the offender, and may thereupon,
subject to the provisions herein contained as to bail, commit the offender to custody. Further, (2) Any Magistrate,
whether Executive or Judicial, may at any time arrest or direct the arrest, in his presence, within his local jurisdiction,
of any person for whose arrest he is competent at the time and in the circumstances to issue a warrant.

Important thing to note here is that magistrates have wider power than private citizen. A magistrate can arrest on the
ground of any offence and not only on cognizable offence. As held in the case of Swami Hariharanand Saraswati
vs Jailer I/C Dist. Varanasi, AIR 1954, the arrested person must be produced before another magistrate within 24
hours, otherwise his detention will be illegal.

Arrest how made -
Section 46 describes the way in which an arrest is actually made. As per Section 46(1), unless the person being
arrested consents to the submission to custody by words or actions, the arrester shall actually touch or confine the
body of the person to be arrested. Since arrest is a restraint on the liberty of the person, it is necessary for the
person being arrested to either submit to custody or the arrester must touch and confine his body. Mere oral
declaration of arrest by the arrester without getting submission to custody or physical touching to confine the body will
not amount to arrest. The submission to custody may be by express words or by action. For example, as held in the
case of Bharosa Ramdayal vs Emperor AIR 1941, if a person makes a statement to the police accusing himself of
committing an offence, he would be considered to have submitted to the custody of the police officer. Similarly, if the
accused proceeds towards the police station as directed by the police officer, he has submitted to the custody. In
such cases, physical contact is not required. In case of Birendra Kumar Rai vs Union of India, CrLJ, 1992, it was
held that arrest need not be by handcuffing the person, and it can also be complete by spoken words if the person
submits to custody.

Section 46(2) If such person forcibly resists the endeavor to arrest him, or attempts to evade the arrest, such police
officer or other person may use all means necessary to effect the arrest. Thus, if the person tries to runaway, the
police officer can take actions to prevent his escape and in doing so, he can use physical force to immobilize the
accused. However, as per Section 46(3), there is no right to cause the death of the person who is not accused of an
offence punishable with death or with imprisonment for life, while arresting that person. Further, as per Section 49,
an arrested person must not be subjected to more restraint than is necessary to prevent him from escaping.

Due to concerns of violation of the rights of women, a new provision was inserted in Section 46(4) that forbids the
arrest of women after sunset and before sunrise, except in exceptional circumstances, in which case the arrest can
be done by a woman police officer after making a written report and obtaining a prior permission from the concerned
Judicial Magistrate of First class.

In Kultej Singh vs Circle Inspector of Police, 1992, it was held that keeping a person in the police station or
confining the movement of the person in the precincts of the police station amounts to arrest of the person.


Rights of an Arrested person (GBMLLIM)

Cr P C gives wide powers to the police for arresting a person. Such powers without appropriate safeguards for the
arrested person will be harmful for the society. To ensure that this power is not used arbitrarily, several restraints
have been put on it, which, indirectly, can be seen as recognition of the rights of a person being arrested. Further,
once arrested, a person is already at a disadvantage because of his lack of freedom and so he cannot take
appropriate steps to defend himself. Thus, to meet the needs of "fair trial", several provisions are given in CrPC, that
give specific rights to an arrested person. These rights can be described as follows -

1. Right to know the grounds of arrest - Section 50(1) - According this provision, every police officer or other
person arresting any person without warrant shall forthwith communicate to him full particulars of the offence for
which he is arrested or other grounds for such arrest.
Similarly, when a subordinate officer is deputed by a senior police officer to arrest a person under Section 55, the
subordinate officer must notify the person to be arrested of the substance of the written order given by the senior
officer, which clearly specifes the offence for which he is being arrested. The same provision exists in case of an
arrest made under a warrant in Section 75. In this case, the police officer or any person making arrest under warrat
must notify the substance of the warrant to the person being arrested and if required, must show the warrant. As held
in Satish Chandra Rai vs Jodu Nandan Singh, ILR 26 Cal 748, if the substance of the warrant is not notified, the
arrest would be unlawful.

In Udaybhan Shuki vs State of UP 1999 CrLJ, All HC held that right to be notified of grounds of arrest is a precious
right of the arrested person. This allows him to move the proper court for bail, make a writ petition for habeas corpus,
or make appropriate arrangements for his defence.

This right is also a fundamental right given by the Constitution in Art 22(1), which says, "No person who is arrested
shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he
be denied the right to consult, and to be defended by, a legal practitioner of his choice.". It embodies two distinc rights
- the right to be told of the grounds of arrest and the right to consult a legal practioner of his choice. The second right
of consulting a legal practitioner of his choice actually depends on the first right of being told about the grounds of
arrest. If the person doesn't know why he is being arrested, he cannot consult a legal practioner meaningfully.
In Harikishan vs State of Maharashtra AIR 1962, SC held that the grounds of arrest must be communicated to the
person in the language that he understands otherwise it would not amount to sufficient compliance of the
constitutional requirement.

2. Right to be informed of the provision for bail - Section 50(2) - Some offences that are not very serious do not
require the offender to be kept in custody. For such offences, Cr P C allows the offender to ask for bail as a matter of
right. However, not every person knows about Cr P C and so they cannot know that they can get bail immediately.
Thus, Section 50(2), provides that where a police officer arrests any person other than a person accused of a non-
bailable offence without warrant, 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.

3. Right to be taken to magistrate without delay - Holding a person in custody without first proving that the person
is guilty is a violation of human rights and is completely unfair. At the same time, holding a person in custody is
necessary for the police to carry on their investigation of a crime. These two are contradictory requirements and a
balance must be found between them. Since police has arrested the person, it cannot be the agency that determines
whether person must be kept confined further. This can only be decided by a competent judicial authority. This is
exactly what is embodied in Art 22(2) that gives a fundamental right to the arrested person that he must be produced
before a magistrate within 24 hours of arrest. It says, "Every person who is arrested and detained in custody shall be
produced before the nearest magistrate within a period of twenty-four hours of such arrest excluding the time
necessary for the journey from the place of arrest to the court of the magistrate and no such person shall be detained
in custody beyond the said period without the authority of a magistrate."

Section 57 of CrPC also contains a similar provision for a person arrested without a warrant. It says, "No police
officer shall detain in custody a person arrested without warrant for a longer period than under all the circumstances
of the case is reasonable, and such period shall not, in the absence of a special order of a Magistrate under Section
167, exceed twenty four hours exclusive of the time necessary for the journey from the place of arrest to the
Magistrate's court."

Section 76 contains a similar provision for a person arrested under a warrant. It says, "The police officer or other
person executing a warrant of arrest shall (subject to the provisions of section 71 as to security) without unnecessary
delay bring the person arrested before the court before which he is required by law to produce such person. Provided
that such delay shall not, in any case, exceed twenty-four hours exclusive of the time necessary for the journey from
the place of arrest to the Magistrate's court."

Thus, it can be see that it is a very important right that is meant to prevent abuse of police power and to prevent the
use of a police station as a prison. It prevents arrest merely for the purpose of extracting confessions. The arrested
person gets to be heard by a judicial authority that is independent of the police.

In Khatri (II) vs State of Bihar 1981 SCC, SC has strongly urged upon the State and its police to ensure that this
constitutional and legal requirement of bringing an arrested person before a judicial magistrate within 24 hours be
scrupulously met. This is a healthy provision that allows magistrates to keep a check on the police investigation. It is
necessary that the magistrates should try to enforce this requirement and when they find it disobeyed, they should
come heavily upon the police.

Further, in Sharifbai vs Abdul Razak, AIR 1961, SC held that if a police officer fails to produce an arrested person
before a magistrate within 24 hours, he shall be held guilty of wrongful detention.

Constitutional Perspective on Art 22(2) - On the face of it, this article seems to be applicable on arrests with or
without warrants. However, in State of Punjab vs Ajiab Singh AIR 1953, SC observed that it applies only to cases
of arrests without warrant because in case of an arrest with warrant, the judicial mind has already been applied while
issuing the warrant. So further safeguard is not required. This decision has been widely criticized. In any case, the
proviso to Section 76 unmistakably provides that a person arrested under a warrant must be produced before a
magistrate within 24 hours.

4. Right to consult Legal Practitioner - Art 22 (1) - For conducting a fair trial it is absolutely necessary that the
accused person is able to consult with a legal practitioner whom he trusts. Second part of Article 22(1) gives this
fundamental right to an arrested person. It says that no person who is arrested shall be denied the right to consult,
and to be defended by, a legal practitioner of his choice. However, this does not mean that the State must provide a
legal practitioner of the person's choice. It is up to the arrested person to contact and appoint a such a legal
practitioner. The State's responsibility is only to ensure that he is not prevented from doing so.

The same right is also provide by CrPC under Section 303, which says, "Any person accused of offence before a
Criminal Court or against whom proceedings are instituted under this Code, may of right be defended by a pleader of
his choice."

5. Right to free legal aid - Art 21 and Section 304 - A person who does not have the means to hire a legal
practitioner is unable to defend himself appropriately. This casts a cloud on the fairness of the trial.
Therefore, Section 304provides that where, in a trial before the Court of Session, the accused is not represented by
a pleader, and where appears to the Court that the accused has not sufficient means to engage a pleader, the Court
shall assign a pleader for his defense at the expense of the State. In Khatri (II) vs State of Bihar 1981
SCC, Supreme Court has also held that access to a legal practitioner is implicit in Article 21, which gives
fundamental right to life and liberty. The state is under constitutional mandate to provide free legal aid to an indigent
accused person and this constitutional obligation arises not only when the trial is commenced but also when the
person is first produced before a magistrate and also when he is remanded from time to time. In Suk Das vs Union
Territory of Arunachal Pradesh 1986, SCC, SC has held that non-compliance of this requirement or failure to
inform the accused of this right would vitiate the trial entailing setting aside of the conviction and sentence. The right
of an accused person to consult his lawyer begins from the moment of his arrest. The consultation with the lawyer
may be within the presence of a police officer but not within the police officer's hearing. SC also held that it is the duty
on all courts and magistrates to inform the indegent person about his right to get free legal aid.

6. Right to be informed about the right to inform of his arrest to his relative or friend -
In order to ensure a fair trial and to improve people-police relationship, the Supreme Court, in Joginder Kumar vs
State of UP 1994, formulated the rules that make it mandatory on the police officer to inform one friend, relative, or
any other person of the accused person's choice, about his arrest. These rules were later incorporated in CrPC under
section 50 A in 2005.

Section 50 A (1) provides that once the arrested person is brought to the police station, the police officer must inform
a relative or a friend, or any other person of the arrested person's choice, about his arrest. He must also tell the place
where the arrested person has been kept. This is a very important step in ensuring justice with the arrested person
because this allows the arrested person and his well wishers to take appropriate legal steps to secure his release.
However, all this will amount to nothing if the arrested person does not even know about this very critical right.
Thus, Section 50 A (2) provides that the police officer must inform the arrested person of this right. Further, as
per Section 50 A (3) he must note down the name and address of the person who was informed about the arrest. To
make sure that there is no violation of this right, section 50 A (4) makes it a duty of the magistrate to verify that the
provisions of this section were complied with.

7. Right to be examined by a medical practitioner - While Section 53 allows a police officer to get the accused
examined by a registered medical practitioner, Section 54(1) gives the accused a right to get himself examined by a
registered medical practitioner. Section 54 (1) says thus, "When a person who is arrested, whether on a charge or
otherwise, alleges, at the time when he is produced before a Magistrate or at any time during, the period of his
detention in custody that the examination of his body will afford evidence which will disprove the commission by him
of any offence or which Magistrate shall, if requested by the arrested person so to do direct the examination of' the
body of such person by a registered medical practitioner unless the Magistrate considers that the request is made for
the purpose of vexation or delay or for defeating the ends of Justice". While Section 53 is meant to aid the police in
investigation, Section 54(1) is meant for the accused to prove his innocence. This right can also be used by the
accused to prove that he was subjected to physical injury.

In Sheela Barse vs State of Maharashtra 1983 SCC, SC held that the arrested accused person must be informed
by the magistrate about his right to be medically examined in terms of Section 54(1).

However, it is not clear in the section whether the medical person must be of the choice of the accused or shall be
appointed by the magistrate. The section is also silent on who will bear the expense of the examination.

Non compliance to this important provision prompted Delhi High court to issue directions that make it obligatory for
the magistrates to ask the arrested person as to whether he has any complaint of torture or maltreatment in police
custody.

Consequences of non-compliance with the provisions relating to arrest -

In general, non-compliance does not void a trial. Just because any provision relating to arrest was not complied with
does not affect whether the accused is guilty or not. However, the violation will be material in case the accused is
prosecuted on the charge of resistance to or escape from lawful custody.
Further, everybody has a right to defend himself against unlawful arrest and a person can exercise this right under
Section 96 to 106 of IPC and he will not be liable for any injury caused due to it. Also, a person who is making an
illegal arrest is guilty of wrongful confinement and also exposes himself to damages in a civil suit.
If a person who has an authority to arrest, arrests a person with full knowledge that the arrest is illegal, he will be
liable to be prosecuted under Section 220 of IPC. Similarly, any private person who does not have an authority to
arrest, arrests a person with full knowledge that the arrest is illegal, can be prosecuted under Section 342 of IPC for
wrongful confinement.
A person making illegal arrest also exposes himself to civil suit of false imprisonment.

It is important to note that the provisions regarding arrest cannot be by-passed by alleging that there was no arrest
but only an informal detention. Informal detention or restraint of any kind by the police is not authorized by law.
Q. What provisions are given in CrPC for compelling
appearance in courts? What do you know about
Summons in this context? Describe the procedure for
issue and service of a Summons. How can a
Summons be served on a govt. employee or outside
local limits?

Processes for compelling appearance
To meet the ends of justice, it is critical to produce the accused and other witness or related parties before the court
whenever needed. If the accused is found guilty at the conclusion of the trial, he must be present in person to receive
the sentence. Also, his presence is necessary if imprisonment is to be enforced. Further, the supremacy of the law
will be questionable if there is no formal process to bring the required persons before the court. For this
reason, Chapter VI (Sections 61 to 90) of CrPC provides three ways for compelling the appearance of any person
who is required to be present in the court, in the court -

1. Summons,
2. Warrant, and
3. Proclamation for person absconding
While Summons is an order of the court to the person to appear before it, Warrant is an order of the court given to a
third person to bring the person who is required to be present in the court, in the court. Which method is to be used in
a particular situation depends on the judicial officer, who is guided by the provisions of this code. The third method is
used when the person has absconded or is in any other way avoiding arrest, in which case the Court may publish a
written proclamation requiring him to appear at a specified place and at a specified time not less than thirty days from
the date of publishing such proclamation

The code classifies all criminal cases into summons cases and warrant cases. A case is a warrant case if the offence
is punishable by death, imprisonment for life or imprisonment for more than two years. A summons case is a case
that is not a warrant case. Thus, the basis of classification is the seriousness of the offence. Since summons case
contains a lesser sentence, there is less probability of the accused violating the court order. Therefore, generally, a
summons is issued for a summons case and a warrant is issued for a warrant case. However, when a summons is
not productive in making a person appear before the court, the count may issue a warrant to a police officer or any
other person to forcibly produce the required person before the court.

Summons
A Summons is a process issued by a Court, calling upon a person to appear before a Magistrate. It is used for the
purpose of notifying an individual of his legal obligation to appear before the Magistrate as a response to a violation of
the law. It is addressed to a defendant in a legal proceeding. Typically, the summons will announce to the person to
whom it is directed that a legal proceeding has been started against that person, and that a file has been started in
the court records. The summons announces a date and time on which the person must appear in court.

A person who is summoned is legally bound to appear before the court on the given date and time. Willful
disobedience is liable to be punished under Section 174 of IPC. It is a ground for contempt of court.

As per Section 61, every summons issued by a Court under this Code shall be in writing and in duplicate. It must be
signed by the presiding officer of the Court or by such other officer as the High Court may, from time to time, by rule
direct. It must also bear the seal of the Court.

Procedure for issuing a Summons
When a request in appropriate format is made to the court for compelling the appearance for a person, the court
either rejects the request or issues a Summons. As per Section 204, if in the opinion of the magistrate taking
cognizance of the offence, there is sufficient ground for proceeding, he shall issue a summons if it is a summons
case. If it is a warrants case, he may issue a warrant or a summons as he thinks fit. However, Section 87, empowers
a magistrate to issue a warrant even if the case is a summons case if he has reason to believe that the summons will
be disobeyed. He must record his reasons for this action.

The summons should contain adequate particulars such as the date, time, and place, of the offence charged. It
should also contain the date, time, and place where the summoned person is supposed to appear. The standard
format of a summons is given in Form 1 of Second schedule.

As per Section 205, a magistrate issuing the summons may permit the accused to appear by his lawyer if he sees
reason to do so.

Procedure for serving a Summons
CrPC describes the procedures for serving a summons on various categories of individuals - a person, a corporate
body, a government servant, and a person residing outside the jurisdiction of the court.

Section 62 describes the procedure for serving a Summons on a person as follows -
(1) Every summons shall be served by a police officer, or subject to such rules as the State Government may make in
this behalf, by an officer of the Court issuing it or other public servant.
(2) The summons shall, if practicable, be served personally on the person summoned, by delivering or tendering to
him one of the duplicates of the summons.
(3) Every person on whom a summons is so served shall, if so required by the serving officer, sign a receipt therefore
on the back of the other duplicate.

In case of Danatram Karsanal, 1968, it was held that summons should not only be shown but a copy of it be left,
exhibited, delivered, or tendered, to the person summoned. In a case, where a copy was tendered to the person, it
was held that the summon was served.
In E Chathu vs P Gopalan, 1981, it was held that when the person sought to be summoned is employed abroad, the
court can send summons to the concerned embassy official for the purpose of service since the embassy official is
also a public servant. Merely affixing the summon on a conspicuous part of the house will not amount to service of
the summon.

Service of summons on corporate bodies and societies (Section 63) -
Service of a summons on a corporation may be effected by serving it on the secretary, local manager or other
principle officer of the corporation, or by letter sent by registered post, addressed to the chief officer of the corporation
in India, in which case the service shall be deemed to have been effected when the letter would arrive in ordinary
course of post. In this section, "corporation" means an incorporated company or other body corporate and includes a
society registered under the Societies Registration Act, 1860.

In the case of Central Bank of India vs Delhi Development Authority, 1981, it was held that a Branch Manager is
a local manager and if he has been served the service shall be deemed to have been effected on the company itself.

Service when persons summoned cannot be found (Section 64) -
Where the person summoned cannot, by the exercise of due diligence, be found, the summons may be served by
leaving one of the duplicates for him with some adult male member of his family residing with him, and the person
with whom the summons is so left shall, if so required by the serving officer, sign a receipt therefor on the back of the
other duplicate. A servant is not considered to be a member of the family within the meaning of this section.

Procedure when service cannot be effected as before provided (Section 65) -
If service cannot by the exercise of due diligence be effected as provided in section 62, section 63, or section 64, the
serving officer shall affix one of the duplicates of the summons to some conspicuous part of the house or homestead
in which the person summoned ordinarily resides; and thereupon the Court, after making such inquiries as it thinks fit,
may either declare that the summons has been duly served or order fresh service in such manner as it considers
proper.

The service of summons on a witness can also be done by post. As per Section 69 -
(1) Notwithstanding anything contained in the preceding sections of this Chapter, a Court issuing a summons to a
witness may, in addition to and simultaneously with the issue of such summons, direct a copy of the summons to be
served by registered post addressed to the witness at the place where he ordinarily resides or carries on business or
personally works for gain.
(2) When an acknowledgment purporting to be signed by the witness or an endorsement purporting to be made by a
postal employee that the witness refused to take delivery of the summons has been received, the Court issuing the
summons may declare that the summons has been duly served.

Service of summons on a Govt. employee (Section 66) -
Section 66 details the procedure for serving a summons on a Government employee as follows -
(1) Where the person summoned is in the active service of the Government, the Court issuing the summons shall
ordinarily sent it in duplicate to the head of the office in which such person is employed; and such head shall
thereupon cause the summons to be served in the manner provided by section 62, and shall return it to the Court
under his signature with the endorsement required by that section.
(2) Such signature shall be evidence of due service.

Service of summons outside local limits (Section 67) -
When a Court desires that a summons issued by it shall be served at any place outside its local jurisdiction, it shall
ordinarily send such summons in duplicate to a Magistrate within whose local jurisdiction the person summoned
resides, or is believed to be there, served.
Q. What do you understand by Warrant of Arrest?
Describe the procedure for issue and execution of a
Warrant of Arrest. When can a court issue a warrant in
a case in which it is empowered to issue a summons?
When can a warrant be issued for recovery of a fine?

Introduction
To meet the ends of justice, it is critical to produce the accused and other witness or related parties before the court
whenever needed. If the accused is found guilty at the conclusion of the trial, he must be present in person to receive
the sentence. Also, his presence is necessary if imprisonment is to be enforced. Further, the supremacy of the law
will be questionable if there is no formal process to bring the required persons before the court. For this
reason, Chapter VI (Sections 61 to 90) of CrPC provides two ways for compelling the appearance of any person
who is required to be present in the court, in the court - Summons and Warrant. While Summons is an order of the
court to the person to appear before it, Warrant is an order of the court given to a third person to bring the person
who is required to be present in the court, in the court. Which method is to be used in a particular situation depends
on the judicial officer, who is guided by the provisions of this code.

The code classifies all criminal cases into summons cases and warrant cases. A case is a warrant case if the offence
is punishable by death, imprisonment for life or imprisonment for more than two years. A summons case is a case
that is not a warrant case. Thus, The basis of classification is the seriousness of the offence. Since summons case
contains a lesser sentence, there is less probability of the accused violating the court order. Therefore, generally, a
summons is issued for a summons case and a warrant is issued for a warrant case. However, when a Summons is
not productive in making a person appear before the court, the count may issue a warrant to a police officer or any
other person to forcibly produce the required person before the court.

Warrant of Arrest
A warrant of arrest is a written authority given by a competent magistrate for the arrest of a person. It is a more
drastic step than the issue of a summons. It is addressed to a person, usually a police officer, to apprehend and
produce the offender in front of the court.
Essential Elements of a valid warrant -
1. The warrant must clearly mention the name and other particulars of the person to be arrested. As per Section
70(1), every warrant of arrest shall be in writing. It must be signed by the presiding officer of the court and must bear
the seal of the court. As per section 70(2), a warrant remains in force until it is canceled or is executed. Normally,
Form 2 of Second schedule is used to write a warrant.
2. It must show the person to whom the authority to arrest has been given. As per Section 72, a warrant is normally
directed to one or more police officers but, if necessary, the court may direct it to any other person or persons.
Further, section 73 provides that a magistrate may direct a warrant to any person within his jurisdiction for the arrest
of any escaped convict, proclaimed offender, or of any person who is accused of a non-bailable offence and is
evading arrest.
3. It may include a direction that if the person arrested under the warrant executes a bond and gives security for his
attendance in court, he shall be released. Warrant with such a direction is called as bailable warrant of arrest.
4. It must clearly specify the offence.

Procedure for issuing a Warrant
When a request in appropriate format is made to the court for compelling the appearance for a person, the court
either rejects the request or issues a Warrant. As per Section 204, if in the opinion of the magistrate taking
cognizance of the offence, there is sufficient ground for proceeding, and if the cases is a warrant case, he may issue
a warrant or if he thinks fit, he may issue a summons.
Further, Section 87, empowers a magistrate to issue a warrant even if the case is a summons case if he has reason
to believe that the summons will be disobeyed. He must record his reasons for this action.

Procedure for executing a Warrant
As per section 75, A warrant can be executed by showing the substance of the warrant to the person being arrest. If
required, the warrant must be shown to the person arrested. Section 76 mandates that the person executing the
warrant must produce the arrested person before the magistrate without unnecessary delay and within 24 hours
excluding the time taken for travel from the place of arrest to the magistrate.

As per section 77, a warrant may be executed anywhere in India. Section 78 specifies that if a warrant is to be
executed outside the local jurisdiction of the court issuing it, such court may send it to the Executive Magistrate or
District Superintendent of Police or Commissioner of Police within the local limits of whose jurisdiction it is to be
executed instead of directing it to the police officer within the jurisdiction of the issuing court.

Section 79 specifies the procedure for executing a warrant outside the local jurisdiction of the issuing court as follows
-
(1) When a warrant directed to a police officer is to be executed beyond the local jurisdiction of the Court issuing the
same, he shall ordinarily take it for endorsement either to an Executive Magistrate or to a police officer not below the
rank of an officer in charge of a police station, within the local limits of whose jurisdiction the warrant is to be
executed.
(2) Such Magistrate or police officer shall endorse his name thereon and such endorsement shall be sufficient
authority to the police officer to whom the warrant is directed to execute the same, and the local police shall, if so
required, assist such officer in executing such warrant.
(3)Whenever there is reason to believe that the delay occasioned by obtaining the endorsement of the Magistrate or
police officer within whose local jurisdiction the warrant is to be executed will prevent such execution, the police
officer to whom it is directed may execute the same without such endorsement in any place beyond the local
jurisdiction of the Court which issued it.

When can a court issue a Warrant in a case in which it is empowered to
issue summons
As per Section 87 a court may issue a warrant even in a case in which it is empowered only to issue a summons. A
court can issue a warrant either before issuing a summons or even after issuing a summons. It may do so if it has
reason to believe that the person has absconded or that the person will not obey the summons. Further, a court may
issue a warrant if the summons was duly served and still the person fails to appear before it at the required date and
time without any reasonable excuse. The court must record its reasons to do so.

It must be noted that Section 204 empowers the court to issue a summons even for a warrants case if it believes that
a summons is sufficient to enforce the appearance of the person before it, while Section 87 empowers the court to
issue a warrant even in a summons cases, if reasonable causes exist. In general, a warrant ought not to be issued
where a summons can serve the purpose and care should be exercised by the court to satisfy itself that upon the
materials present before it, it was necessary to issue a warrant. In Anoop Singh vs Cheelu AIR 1957, it was held
that this applies to an accused as well as a witness. But where the court has no power to issue a summons, it cannot
issue a warrant under this section. In P K Baidya vs Chaya Rani AIR 1995, it was held that when a witness avoids
his appearance in spite of the summons being appropriately served, court can take steps for securing his presence
under this section.

When can a warrant be issued for recovery of a fine
Section 421 - Warrant for levy of fine-
(1) When an offender has been sentenced to pay a fine, the Court passing the sentence may take action for the
recovery of the fine in either or both of the following ways, that is to say, it may,-
(a) issue a warrant for the levy of the amount by attachment and sale of any movable property belonging to the
offender;
(b) issue a warrant to the Collector of the district, authorizing him to realize the amount as arrears of land revenue
from the movable or immovable property, or both, of the defaulter:

Provided that, if the sentence directs that in default of payment of the fine, the offender shall be imprisoned, and if
such offender has undergone the whole of such imprisonment in default, no Court shall issue such warrant unless, for
special reasons to be recorded in writing, it considers it necessary so to do, or unless, it has made an order for the
payment of expenses or compensation out of the fine under Section 357.
(2) The State Government may make rules regulating the manner in which warrants under Clause (a) of sub-section
(1) are to be executed, and for the summary determination of any claims made by any person other than the offender
in respect of any property attached in execution of such warrant.
(3) Where the Court issues a warrant to the Collector under Clause (b) of sub-section (1), the Collector shall realize
the amount in accordance with the law relating to recovery of arrears of land revenue, as if such warrant were a
certificate issued under such law:

Provided that no such warrant shall be executed by the arrest or detention in prison of the offender.
Q. When is a person declared Absconder? Explain the
procedure for publication of proclamation for persons
absconding with reference to Sections 82, 83, 84, 85.

When a person is hiding from his place of residence so as to frustrate the execution of a warrant of arrest, he is said
have absconded. A person may hide within his residence or outside away from his residence. If a person comes to
know about the issuance of a process against him or if he anticipates such a process and hides or quits the country,
he is said to have absconded. In Kartary vs State of UP, 1994, All HC held that when in order to evade the process
of law a person is hiding from (or even in) his place of residence, he is said to abscond. A person is not said to
abscond merely when he has gone to a distant place before the issuance of a warrant. Similarly, it is necessary that
the person is hiding himself and it is not sufficient that an inspector is unable to find him.

Normally, if a person fails to appear before the court even after being served a summons, the court issues a warrant
of arrest. However, if the person absconds to avoid the arrest, the drastic step of Proclamation for Persons
Absconding needs to be taken, which is described in Section 82..

Proclamation for person absconding (Section 82(1)) -
If the court has reason to believe that a person has absconded to avoid the execution of his arrest warrant, the court
may publish a written proclamation requiring such person to appear before it at the specified place and time. The date
and time of appearance must not be less than thirty days from the date of proclamation.

Procedure for Publication of the Proclamation (Section 82(2)) -
As per section 82(2), the proclamation must be read in some conspicious place of the town or village in which the
person resides. It shall also be affixed to some conspicuous part of the house in which the person resides or to some
conspicuous place of the town or village. Further, a copy of the same must also be affixed to some conspicious part
of the court house. The court may also direct a copy of the proclamation to be published in a daily newspaper
circulating in the place is which such person ordinarily resides.

The terms of Section 82 are mandatory and a proclamation cannot be issued without first issuing a warrant of arrest.
Therefore, as held in Bishnudayal vs Emperor AIR 1943, if there is no authority to arrest, the issuing of
proclamation would be illegal.

Consequences of Proclamation
Section 83 - Attachment of property of person absconding -
The publication of proclamation in accordance with the procedure described in section 82, is the last of the steps
taken to produce a person before the court. If the person still fails to appear before the court, Section 83 empowers
the court to attach the property of the person who is absconding at any time. The court must record the reasons for
doing so. The property can be movable or immovable. The property can be any property within the district or even
outside the district of the District magistrate of the other district endorses the proclamation.

Further, if, at the time of making proclamation, the court is satisfied that the person is about to dispose of his property
or is about to move his property out of the jurisdiction of the court, it may order the attachment of the property
simultaneously with the issue of proclamation.

If the property to be attached is a debt or is movable property, the attachment is done either by seizure, by the
appointment of a receiver, by an order ins writing prohibiting the deliver of sch property to the proclaimed person or to
anyone on his behalf. Court can also use any one or more of these modes as it thinks fit. If the property is immovable,
it can be attached by taking possession, by appointing a receiver, by an order prohibiting the payment of rent to the
proclaimed persons or by any or all of these methods.

Section 84 provides a means to protect the interests of any person other than the proclaimed person in the attached
property. Any such person who has an interest in the attached property can claim it within six months from the date of
attachment on the ground that the claimant has an interest in the property and the interest is not liable to be attached
under section 83. The claim shall be inquired into and may be allowed or disallowed in whole or in part.

(1) If any claim is preferred to, or objection made to the attachment of, any property attached under section 83, within
six months from the date of such attachment, by any person other than the proclaimed person, on the ground that the
claimant or objector has an interest in such property, and that such interest is not liable to attachment under section
83, the claim or objection shall be inquired into, and may be allowed or disallowed in whole or in part:

Provided that any claim preferred or objection made within the period allowed by this sub-section may, in the event of
the death of the claimant or objector, be continued by his legal representative.

(2) Claims or objections under sub-section (1) may be preferred or made in the Court by which the order of
attachment is issued, or, if the claim or objection is in respect of property attached under an order endorsed under
sub-section (2) of section 83, in the Court of the Chief Judicial Magistrate of the district in which the attachment is
made.

(3) Every such claim or objection shall be inquired into by the Court in which it is preferred or made:
Provided that, if it is preferred or made in the Court of a Chief Judicial Magistrate, he may make it over for disposal to
any Magistrate subordinate to him.

(4) Any person whose claim or objection has been disallowed in whole or in part by an order under sub-section (1)
may, within a period of one year from the date of such order, institute a suit to establish the right which he claims in
respect of the property in dispute; but subject to the result of such suit, if any, the order shall be conclusive.

Section 85 - Release, Sale, and restoration of the property -
(1) If the proclaimed person appears within the time specified in the proclamation, the Court shall make an order
releasing the property from the attachment.

(2) If the proclaimed person does not appear within the time specified in the proclamation, the property under the
attachment shall be at the disposal of the State Government; but it shall not be sold until the expiration of six months
from the date of the attachment and until any claim preferred or objection made under section 84 has been disposed
of under that section, unless it is subject to speedy and natural decay, or the Court considers that the sale would be
for the benefit of the owner; in either of which cases the Court may cause it to be sold whenever it thinks fit.

(3) If, within two years from the date of the attachment, any person whose property is or has been at the disposal of
the State Government, under sub-section (2), appears voluntarily or is apprehended and brought before the Court by
whose order the property was attached, or the Court to which such Court is subordinate, and proves to the
satisfaction of such Court that he did not abscond or conceal himself for the purpose of avoiding execution of the
warrant, and that he had not such notice of the proclamation as to enable him to attend within the time specified
therein such property, or, if the same has been sold, the net proceeds of the sale, or, if part only thereof has been
sold, the net proceeds of the sale, and the residue of the property, shall, after satisfying therefrom all costs incurred in
consequence of the attachment, be delivered to him.

Q. 8 What is meant by Commencement of
proceedings? [Sec 200, 201, 202] When can a
complaint be dismissed?[Sec 203]

"Commencement of proceedings" happens with the proceedings that take place after "taking of cognizance" of an
offence by a magistrate under Section 190, which can happen either on a complaint by any person, a police report,
any other source other than a police officer, or upon his own knowledge. However, when cognizance is take upon a
complaint made by any person, it is critical to examin the complainant to ensure that the complaint is genuine before
starting the trial and summoning an accused. According to 41st Law Report, everyday experience of the court shows
that a vast number of complaints to the magistrate are ill founded and therefore they should be carefully considered
at the very start and those which are not very convincing on the face should be subjected to further scrutiny so that
an accused person is summoned only in substantial cases. What this means is that frivolous and vexatious cases
that are just meant to harass an accused must be weeded out. This is exactly the objective of Section 200, which
implores a magistrate to examin the compainant under oath and any witnesses.

Section 200 says: A Magistrate taking cognizance of an offence on complaint shall examine upon oath the
complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and
shall be signed by the complainant and the witnesses, and also by the Magistrate.
Provided that, when the complaint is made in writing, the Magistrate need not examine the complainant and the
witnesses-
(a) if a public servant acting or purporting to act in the discharge of his official duties or a Court has made the
complaint; or
(b) if the Magistrate makes over the case for inquiry or trial to another Magistrate under section 192:
Provided further that if the Magistrate makes over the case to another Magistrate under section 192 after examining
the complainant and the witnesses, the latter Magistrate need not re-examine them.

In MacCulloch vs State, 1974, it was held by SC that the provisions of section 200 are not a mere formality, but
have been intended by the legislature to be given effect to for the protection of the accused persons against
unwarranted complaints.

It is also necessary that to start the trial process, the magistrate must be competant to take cognizance the alleged
offence. Section 201 says that if the magistrate is not competant to take congnizace of an offence, he shall (a) if the
complaint is in writing, return it for presentation to the proper Court with an endorsement to that effect; (b) if the
complaint is not in writing, direct the complainant to the proper Court.

To further protect a person from frivolous cases arising from complaints from private parties, Section 202 empowers
a magistrate to inquire into the case himself or direct an investigation to be made by a police officer or by such other
person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding and he can
postpone the issue for process for this purpose.

It is important to note that the "weeding" as envisaged by Section 200-203 is only applicable to cases where
cognizance is taken by the magistrate upon a complaint by a private party. It is not applicable to cognizance taken
upon a police report.

Issue of Process (Section 204)
Once it is determined that a prima facie case exists against the accused, the magistrate proceeds with the case as
per Section 204 by the way of issuing a process. Which means :
(1) If in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding, and the
case appears to be -
(a) a summons-case, he shall issue his summons for the attendance of the accused, or
(b) a warrant-case, he may issue a warrant, or, if he thinks fit, a summons, for causing the accused to be brought
or to appear at a certain time before such Magistrate or (if he has no jurisdiction himself) some other Magistrate
having jurisdiction.
(2) No summons or warrant shall be issued against the accused under sub-section (1) until a list of the prosecution
witnesses has been filed.
(3) In a proceeding instituted upon a complaint made in writing, every summons or warrant issued under sub-section
(1) shall be accompanied by a copy of such complaint.
(4) When by any law for the time being in force any process-fees or other fees are payable, no process shall be
issued until the fees are paid and, if such fees are not paid within a reasonable time, the Magistrate may dismiss the
complaint.
(5) Nothing in this section shall be deemed to affect the provisions of section 87 (Section 87: Issue of warrant in lieu
of, or in addition to, summons).


Dismissal of a Complaint - Section 203
As mentioned before, upon receiving a complaint, a magistrate can conduct an inquiry or direct investigation of the
complaint under Section 202(1). Section 203 empowers a magistrate to dismiss the complaint, if, after considering
the statements on oath from the complainant or his witnesses or the result of the inquiry or investigation, he believes
that there are no sufficient grounds for proceeding further. He must record the reasons for dismissal. The magistrate
must apply his mind on the collected statements and inquiry report to determine whether there is any merit in the
complaint. However, as held by SC in Chandra Deo Singh vs Prokash Chandra Bose, 1963, the test specified
by Section 203 for dismissing a complaint is only whether sufficient grounds exist for proceeding further and not
whether sufficient grounds exist for conviction. Thus, even if the magistrate does not see sufficient grounds for
conviction but sees sufficient ground for proceeding further with the trial, he must not dismiss the complaint. SC
further observed that where there is a prima facie evidence against the accused, even though the accused might
have a defence, the issue of process cannot be refused because the hearing of defence must be done at the
appropriate stage and at appropriate forum.

Q. What is an offence?

General Concept of Offence
A violation of a penal law is an offence. Thus, any act which is deemed as an offence by any law is an offence. In
general, such act which causes a violation of rights of others or cause harm to others and is so dangerous that is also
affects the society at large is designated as offence by the legislature through the acts of the parliament. Section 2(n)
of CrPC defines an offence as follows -
Section 2(n) - "Offence" means any act or omission made punishable by any law for the time being in force and
includes any act in respect of which a complaint may be made under section 20 of the Cattle-trespass Act, 1871.
Further Section 39(2) says that act committed outside India is also an offence if that act would be an offence if
committed in India.

It is important to note that an act is not offence unless it is clearly defined as an offence by any piece of legislature.
Thus, to be an offence, the legislature must designate it to be an offence. Several Acts and Legislations defines such
acts which constitute offences. The main among them is the Indian Penal Code. It defines acts ranging from theft and
murder to fraud and criminal breach of trust and makes them offences. Examples of other acts which defines
offences are Wildlife Protection Act, Prevention of Corruption Act, Narcotic Drugs and Psychotropic Substances Act,
Environmental Protection Act. These Acts defines certain activities related to the focus of the Act as offences. Some
Acts such as Prevention of Corruption Act and Narcotic Drugs and Psychotropic Substances Act also specify the
mode of trial for the offences that they define, while some specify that trial for their offences will be held as per the
provisions of Cr PC.

Q. What is Bail?
The purpose of arrest and detention of a person is primarily to make sure that the person appears before the court at
the time of trial and if he is found guilty and is sentenced to imprisonment, he must be made available to serve his
sentence. However, if it is reasonably evident that the person charged with an offence can be made available for the
above mentioned purposes without keeping him imprisoned, then it is unfair to keep him in custody until his guilt is
proven. It is a violation of a person's fundamental right to restrict the person's liberty without any just cause.

Bail is one such mechanism which is used to ensure the presence of an accused whenever required by the court.
CrPC does not define the term Bail, but essentially, Bail is an agreement in which a person makes a written
undertaking to the court. A person who is in custody, because he or she has been charged with an offence or is
involved in pending criminal proceedings, may apply to be released on Bail. Normally, in signing a bail agreement a
person undertakes that he will be present every time the matter is in court until the proceedings are finished, will
comply with any conditions set out in the agreement as to conduct while on Bail, and will forfeit a specified sum of
money if the person fails, without proper excuse, to comply with any term or condition of the agreement. Two
authorities that may grant bail are the police and the courts. A person may be required to provide a security as well.
But it is not necessary. A person may also be let off on his own bond. In the case of Moti Ram vs State of MP, AIR
1978, SC held that a Bail covers both release on one's own bond with or without surety.

Q. What is a Bailable and Non-Bailable offence?

An offence can be classified as a Bailable or a Non-Bailable offence. In general, a bailable offence is an offence of
relatively less severity and for which the accused has a right to be released on bail. While a non-bailable offence is a
serious offence and for it, the accused cannot demand to be released on bail as a right. More specifically, Section
2(a) defines Bailable Offence as well as Non-Bailable Offence as follows -

Section 2 (a) - Bailable offence" means an offence which is shown as bailable in the First Schedule, or which is
made bailable by any other law for the time being in force: and "non-bailable offence" means any other offence.

Interesting thing is that the definition itself does not refer to seriousness of the offence. It simply makes those
offences as bailable which are listed as so in the First Schedule of Cr P C. These offences include offences such as
obstructing a public servant from discharging his duties, bribing an election official, and providing false evidence.
Non-bailable offences include offences such as murder, threatening a person to give false evidence, and failure by a
person released on bail or bond to appeal before court. However, a quick look at the list of bailable and non-bailable
offences shows that bailable offences are of relatively less severity.

Q. When and When not can Bail be granted?
As mentioned earlier, the purpose of Bail is to ensure the appearance of an accused before the court whenever
required. However, granting bail is not advisable in all cases. For example, a murder, if let loose, may try to intimidate
the witnesses, or he may even abscond altogether. This is very bad for the society in general and reflects bad on the
justice system. Thus, various rules and procedures have been formulated to make sure that only the deserving are
released on bail. They try to achieve a balance between the rights of the accused and the protection of the society
and effectiveness of the justice system.

The working of the bail system in India was highlighted in the case of Hussainara Khaton vs Home Secretory,
1980. It came to the courts attention for the first time that thousands of people were rotting in jails for 3 to 10 years for
petty crimes which do not have punishment more than 6 months to an year. This was because they were unable to
pay bond money for bail and the courts were too backlogged to hear their cases. In this respect, J Bhagwati observed
that the courts must abandon the antiquated concept under which pretrial release is ordered only against bail with
sureties.

Thus, in general, the intention of the justice system is to give bail and not jail before the accused is convicted. It is
said that since the accused is presumed innocence, he must be released so that he can fight for his defense. Thus,
releasing a person on bail is a rule, while denying bail is an exception.

Provisions for Bail can be categorized by the type of offence committed i.e. bailable offence or non-bailable offence -

Bail for Bailable offences -

A person accused of a bailable offence can demand to be released on bail as a matter of right. This is provided for
by Section 436.
Section 436 - When any person other than a person accused of a non-bailable offence is arrested or detained
without warrant by an officer in charge of a police station, or appears or is brought before a court, and is prepared at,
any, time while-in the custody of such officer or at any stage of the proceeding before such court to give bail, such
person shall be released on bail.
Further, such officer or court, if he or it thinks fit, may, instead of taking bail from such person, discharge him on his
executing a bond without sureties for his appearance.
Section 50(2) imposes an obligation on the police officer to notify the detained person about his right to get bail if he
is detained on a bailable offence.
The right to bail cannot be nullified by imposing a very high amount for bail. Section 440(1) specifically provides that
the amount of bail cannot be unreasonably high.
An amendment to Section 436 mandates that an indigent person, who is unable to provide any bail amount, must be
released. If a person is unable to provide bail amount for a week, then he can be considered indigent.
Section 436 A allows a person to be released on his own surety if he has already spent half the maximum sentence
provided for the alleged crime in jail. However, this does not apply if death is one of the punishments specified for the
offence.

Bail for Non-Bailable offences -

When a person is detained for a non-bailable offence, he cannot demand to be released on bail as a matter of right.
He can, however, request the court to grant bail. The provisions in this case are governed by Section 437/

Section 437 - When any person accused of, or suspected of, the commission of any non-bailable offence is arrested
or detained without warrant by an officer-in-charge of a police station or appears or is brought before a Court other
than the High Court or Court of session, he may be released on bail. If it appears to such officer or Court at any
stage of the investigation, inquiry or trial, as the case may be, that there are no reasonable grounds for believing that
the accused has committed a non-bailable offence, but there are sufficient grounds for further inquiry into his guilt, the
accused shall be released on bail, or, at the discretion of such officer or Court, on the execution by him of a bond
without sureties for his appearance. A police officer or the court may also release a person from custody if he feels
that there are any special reasons. But he must record his reasons in writing.

Supreme Court, in the case of Narsimhulu, AIR 1978, has given a set of considerations that must be given while
giving bail in case of non-bailable offences. These are -

1. the nature of the crime
2. the nature of the charge, the evidence, and possible punishment
3. the possibility of interference with justice
4. the antecedents of the applicant
5. furtherance of the interest of justice
6. the intermediate acquittal of the accused
7. socio-geographical circumstances
8. prospective misconduct of the accused
9. the period already spent in prison
10. protective and curative conditions on which bail might be granted.

If, in any case triable by a Magistrate, the trial of a person accused of any non-bailable offence is not concluded
within a period of sixty days from the first date fixed for taking evidence in the case, such person shall, if he is in
custody during the whole of the said period, be released on bail to the satisfaction of the Magistrate, unless for
reasons to be recorded in writing, the Magistrate otherwise directs.
If, at any time, after the conclusion of the trial of a person accused of a non-bailable offence and before judgment is
delivered, the Court is of opinion that there are reasonable grounds for believing that the accused is not guilty of any
such offence, it shall release the accused, if he is in custody, on the execution by him of a bond without sureties for
his appearance to hear judgment delivered.

If the investigation is not done within 24 hours, the arrested person must be bought before the court and if required,
the police must make a case to extend the detention. The court may extend the detention by 15 days. However, the
detention cannot extend more than 60 days (or 90 days, if the offence is punishable by death or imprisonment for
life), after which the accused must be released on bail. This provision applies for bailable as well as non-bailable
offence.
Section 436 A allows a person to be released on his own surety if he has already spent half the maximum sentence
provided for the alleged crime in jail. However, this does not apply if death is one of the punishments specified for the
offence.

Conditions on Bail
As per Section 437, if any person accused of an offence punishable with 7 yrs or more of imprisonment is released
on bail, the court may impose any condition on the bail to ensure that the person will attend the court in accordance
with the bond executed by him, or to ensure that the person will not commit a similar offence or otherwise in interest
of justice.

Special Powers of Hight Court and Court of Session regarding Bail

Section 439 gives special powers to High Court and Court of Session regarding bails. These are as follows -
1. A High Court or Court of Sessions may direct that any person accused of an offence and in custody be released on
bail. It may also impose any condition which it considers necessary. It may set aside or modify any condition imposed
by a Magistrate when releasing any person on bail.
2. The High Court or the Court of Sessions shall, before granting bail to a person who is accused of an offence which
is triable exclusively by the Court of Sessions or which, though not so triable, is punishable with imprisonment for life,
give notice of the application for bail to the Public Prosecutor unless it is, for reasons to be recorded in writing, of
opinion that it is not practicable to give such notice.
3. A High Court or Court of Sessions may direct that any person who has been released on bail under this chapter be
arrested and commit him to custody.


When can bail be denied -
1. As per Section 436(2), if a person has violated the conditions of the bail-bond earlier, the court may refuse to
release him on bail, on a subsequent occasion in the same case. He can also be asked to pay penalty for not
appearing before the court as per the conditions of the previous bail.
2. It is clear that the provision for bail in case of non-bailable offences gives a discretionary power to the police and
and court. However, this power is not totally without any restraint. Section 437 disallows bail to be given in the
following conditions.

1. if there appears reasonable grounds for believing that the person has been guilty of an offence punishable
with death or imprisonment for life;
2. if such offence is a cognizable offence and the person has been previously convicted of an offence
punishable with death, imprisonment for life or imprisonment for seven years or more, or he had been
previously convicted on two or more occasions of a non-bailable and cognizable offence. The person may,
however, be released on bail if such person is under the age of sixteen years or is a woman or is sick or
infirm.
3. Persons accused of Dowry Death -
Cancellation of Bail
Although there was no provision for cancellation of the bail in the old code, the SC in Talib's case (AIR 1958) held
the absence of such provision as a lacuna and recognized the power of High Court of cancellation of bail. In the new
code, as per section 437 (5) any Court which has released a person on bail under section 437(1) or 437(2), may
direct that such person be arrested and commit him to custody. This basically cancels the bail. However, it must be
noted that only the court that has given the bail can cancel it. Thus, a bail given by a police officer cannot be canceled
by a court under this section. To do so the special power of High Court or Court of Session under Section 439has to
be invoked. The new Section 439 explicitly gives the power to High Court and Court of Session to direct that any
person who has been released on bail be arrested and to commit him to custody.

The power given by Section 439 for cancellation has no riders. It is a discretionary power. It is not necessary that
some new events should take place subsequent to the offender's release on bail for the Sessions Judge to cancel his
bail, however, the court usually bases its decision of cancellation on subsequent events. For example, in the case
of Surendra Singh vs State of Bihar 1990, Patna HC pointed out that a bail may be cancelled on following grounds
-
1. When the accused was found tampering with the evidence either during the investigation or during the trial
2. when the accused on bail commits similar offence or any heinous offence during the period of bail.
3.when the accused had absconded and trial of the case gets delayed on that account.
4. when the offence so committed by the accused had caused serious law and order problem in the society
5. if the high court finds that the lower court has exercised its power in granting bail wrongly
6. if the court finds that the accused has misused the privileges of bail
7. when the life of accused itself is in danger

Appeal Provision for Bail
It has been held that an order granting bail is an interlocutory order and so it cannot be challenged under the
revisional jurisdiction of the Session Court or High Court. In general, there is no right of appeal against the decision of
refusing the bail. However, a person can alway file for Special Leave Petition to High Court or Supreme Court against
such decision.
Some acts, such as POTA, explicitly grant a right to appeal against a decision of refusal of bail to special courts.


Q. What do you understand by Anticipatory bail?
When is it granted and when it may be refused? What
is the difference between the general provisions of
anticipatory bail and regular bail?

It has been observed that many cases are instigated against a person just because of political motivation or personal
vendetta. They lack enough evidence and are meant to harass a person by getting him arrested. When a person
apprehends such situation he may apply to Court of Session or the High Court under Section 438 for a direction that
he be released on bail upon his arrest. This provision is commonly known as Anticipatory Bail, i.e bail in anticipation
of an arrest. Anticipatory bail is technically an incorrect term because a bail can be given only if a person has already
been arrested. In this case, the court directs that the person be released on bail as soon as he is arrested. Thus, it is
a direction to provide bail and not the bail itself.

Section 438 - When any person has reason to believe that he may be arrested on an accusation of having committed
a non-bailable offence, he may apply to the High Court or the Court of Sessions for a direction under this section, and
that Court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail.

While applying under this section, the person has to explain the circumstances because which he believes he might
be arrested. Mere hunch or fear is not enough. He must also provide such evidence that shows there is a reasonable
probability that he will be arrested on accusation of a non-bailable offence. Further, the direction under this section
can be given only upon a specific offence. A generic direction or a blanket order to be released whenever the
applicant is arrested and on whatever offence is not allowed.

In granting such a direction the court takes into account the following considerations -
1. The nature and gravity of the accusation.
2. The antecedents on the applicant including the fact as to whether he has previously been imprisoned upon a
conviction by a court in respect of a cognizable offence.
3. The possibility of the accused to flee from justice
4. whether the accusation has been made with the object of injuring or humiliating the applicant by having him
arrested.

The order may also include conditions such as the person shall make himself available for interrogation by a police
officer whenever required, the person shall not leave India, the person shall not make any inducement, threat, or
promise to any person acquainted with the facts of the case, or any other condition that the court may think fit.

It is clear from Section 438(1) that the power to grant anticipatory bail is given concurrently to Court of Session and
High Court. Thus, a person can approach either of the courts to get this relief.

As per Section 438 A, the court may also grant an interim order and in that case an opportunity is given to the public
prosecutor present his arguments on why the applicant should not be given bail. Further, as per Section 438 B, if the
court finds it necessary, it may require the applicant to be present personally at the time of final determination of the
interim order.

A bail under the direction of this section is equivalent to the bail given under Section 437(1) and so it is applicable
until the conclusion of the trial.

Refusal of Anticipatory Bail

Although, there is no specific provision that prohibits granting anticipatory bail, there are certain situations where such
bail is normally not granted. These are -
1. In case of dowry death or wife harassment.
2. In case of economic offences
3. In case of atrocious crimes

Anticipatory bail cannot be applied for after the person is arrested. After arrest, the accused must seek remedy under
Section 437.

Some high courts have held that the grounds mentioned in Section 437 for denying regular bail are applicable for
anticipatory bail as well. Thus, a person accused of an offence that entails a punishment of death or life imprisonment
will not be given anticipatory bail.

In general, the court has a wide discretion in granting anticipatory bail. So the court may deny this relief if it feels that
it is not in the interest of justice.

Cancellation of Anticipatory Bail
There is no specific provision that allows a court to cancel the order of anticipatory bail. However, in several cases it
has been held that when Section 438 permits granting anticipatory bail, it is implicit that the court making such order
is entitled upon appropriate considerations to cancel or recall the order.
Q. Explain general provisions concerning bond [Sec
441 - 450]. Explain the procedure that is followed
when a bond is forfeited [Section 446].

Bond
As per Section 441, before any person is released on bail or is released on his own bond, a bond for an appropriate
sum of money shall be executed by the person and if required by one or more sureties, stating that the person will
appear before the court at the given date and time mentioned in the bond.
In other words, a bonds provides a kind of monetary guarantee that the person being released will appear before the
court as and when required.

General Provisions of Bonds - ( ABNRI DDFFIMAL)
Section 440 - Amount of bond should not be excessive. High Court and Court of Session have power to reduce the
amount.
Section 441 - Court may accept affidavits in proof of fitness of sureties or it may also hold an inquiry to determine the
sufficiency of sureties.
Section 441 A - Every surety must state the number of person he is currently standing surety for.
Section 442 - As soon as the bond is executed, the person should be released.
Section 443 - If through mistake, fraud or otherwise, insufficient sureties have been accepted or if they afterwards
become insufficient, the court may issue a warrant of arrest and may ask him to provide fresh sureties.
Section 444 - A surety can apply to be discharged from the bond, in which case, the person for whom the surety is
given will be arrested and asked to provide new surety.
Section 445 - A court may permit a person to deposit money instead of executing a bond with or without sureties.
Section 446 - If a bond is forfeited, the sureties may be asked to pay the penalty.
Section 446 A - When a bond for appearance of a person is forfeited for a breach of condition, the bond executed by
the person and the sureties shall stand canceled.
Section 447 - If a surety becomes insolvent or dies, the court may ask for new sureties.
Section 448 - If the person from whom bond is required is minor the court may accept a bond executed by sureties
only.
Section 449 - Appeal from orders under Section 446 will lie to Sessions Judge if the order is made by a magistrate
and to High Court if the order is made by Sessions Judge.
Section 450 - The High Court or Court of Session may direct any magistrate to levy the amount due on a bond for
appearance or attendance at such High Court or Session Court.

Procedure on forfeiture of a Bond
If the court is satisfied that the bond has been forfeited -
1. It may ask any person bound by the bond to pay penalty or to show cause why it should not be paid.
2. If sufficient cause is not shown and penalty is not paid, the court may proceed to recover the same as if the
penalty was a fine imposed by the court.
3. If the penalty cannot be recovered, the person bound as surety is liable to be imprisoned in civil jail for up to 6
months
4. The court may remit any portion of the penalty and require the payment in part. It must record its reasons for
doing so.
5. If a surety to a bond dies, his estate shall be discharged from all liability in respect of the bond.

Q. What is a Charge? What are the contents of a
Charge? Discuss the effects of errors in a
Charge? How is a Charge different from FIR?

Charge
As per Wharton's law Lexicon, Charge means to prefer an acusation against some one. To charge a person means to
accuse that person of some offence. However, charge is not a mere accusation made by a complainant or an
informant. A charge is a formal recognition of concrete accusations by a magistrate or a court based upon a
complaint or information against the accused. A charge is drawn up by a court only when the court is satisfied by the
prima facie evidence against the accused. The basic idea behind a charge is to make the accused understand what
exactly he is accused of so that he can defend himself. A charge gives the accused accurate and precise information
about the accusation against him.A charge is written in the language of the court and the fact that the charge is made
means that every legal condition required by law to constitute the offence charged is fulfilled in the particular case.

It is a basic principle of law that when a court summons a person to face a charge, the court must be equipped with at
least prima facie material to show that the person being charged is guilty of the offences contained in the charge.
Thus, while framing a charge, the court must apply its mind to the evidence presented to it and must frame a charge
only if it is satisfied that a case exists against the accused. In the case of State vs Ajit Kumar Saha 1988, the
material on record did not show a prima facie case but the charges were still framed by the magistrate. Since there
was no application of mind by the magistrate, the order framing the charges was set aside by the High Court.


According to Section 2(b) of Cr P C, when a charge contains more than one heads, the head of charges is also a
charge.

Contents of a Charge
Section 211 specifies the contents of a Charge as follows [ONDSLP] -
(1) Every charge under this Code shall state the offence with which the accused is charged.
(2) If the law that creates the offence gives it any specific name, the offence may be described in the charge by that
name only.
(3) If the law that creates the offence does not give it any specific name so much of the definition of the offence must
be stated as to give the accused notice of the matter with which he is charged.
(4) The law and section of the law against which the offence is said to have been committed shall be mentioned in the
charge.
(5) The fact that the charge is made is equivalent to a statement that every legal condition required by law to
constitute the offence charged was fulfilled in the particular case.
(6) The charge shall be written in the language of the court.
(7) If the accused, having been previously convicted of any offence, is liable, by reason of such previous conviction,
to enhanced punishment, or to punishment of a different kind, for a subsequent offence, and it is intended to prove
such previous conviction for the purpose of affecting the punishment which the court may think fit to award for the
subsequent offence, the fact date and place of the previous, conviction shall be stated in the charge; and if such
statement has been omitted, the court may add it at any time before sentence is passed.

A charge must list the offence with which the person is charged. It must specify the law and the section against which
that offence has been done. For example, if a person is charged with Murder, the charge must specify Section 300 of
Indian Penal Code. If the law gives a name to that offence, the charge must also specify that name and if the law
does not specify any name for that offence, the charge must specify the detail of the offence from the definition of the
offence so that the accused is given a clear idea of it.

In many cases, on offender is given a bigger sentence for subsequent offence. In such cases, the charge must also
state the date and place of previous conviction so that a bigger punishment may be given.

Illustrations -

(a) A is charged with the murder of B. This is equivalent to a statement that A's act fell within the definition of murder
given in sections 299 and 300 of the Indian Penal Code (45 of 1860); that it did not fall within any of the general
exceptions of the said Code; and that it did not fall within any of the five exceptions to section 300, or that, if it did fall
within Exception 1, one or other of the three provisos to that exception applied to it.
(b) A is charged under section 326 of the Indian Penal Code (45 of 1860) with voluntarily causing grievous hurt to B
by means of an instrument for shooting. This is equivalent to a statement that the case was not provided for by
section 335 of the said Code, and that the general exceptions did not apply to it.
(c) A is accused of murder, cheating, theft, extortion, adultery or criminal intimidation, or using a false property-mark.
The charge may state that A committed murder, or cheating, or theft, or extortion, or adultery, or criminal intimidation,
or that he used a false property-mark, without reference to the definition, of those crimes contained in the Indian
Penal Code; but the sections under which the offence is punishable must, in each instance, be referred to in the
charge.
(d) A is charged under section 184 of the Indian Penal Code (45 of 1860) with intentionally obstructing a sale of
property offered for sale by the lawful authority of a public servant. The charge should be in those words.

Time and Place of the offence
Further, as per section 212, the charge must also specify the essential facts such as time, place, and person
comprising the offence. For example, if a person is charged with Murder, the charge must specify the name of the
victim and date and place of the murder. In case of Shashidhara Kurup vs Union of India 1994, no particulars of
offence were stated in the charge. It was held that the particulars of offence are required to be stated in the charge so
that the accused may take appropriate defence. Where this is not done and no opportunity is afforded to the accused
to defend his case, the trial will be bad in law for being violative of the principles of natural justice.

It is possible that exact dates may not be known and in such cases, the charge must specify information that is
reasonably sufficient to give the accused the notice of the matter with which he is charged. In cases of criminal
breach of trust, it will be enough to specify gross sum or the dates between which the offence was committed.

Manner of committing the offence
Some times, even the time and place do not provide sufficient notice of the offence which which a person is charged.
In such situations, Section 213, mandates that the manner in which the offence was made must also be specified in
the charge. It says that when the nature of the case is such that the particulars mentioned in sections 211 and 212 do
not give accused sufficient notice of the matter with which he is charged, the charge shall also contain such
particulars of the manner is which the alleged offence was committed as will be sufficient for that Purpose.

Illustrations-

(a) A is accused of the theft of a certain article at a certain time and place the charge need not set out the manner in
which the theft was effected
(b) A is accused of cheating B at a given time and place. The charge must be set out the manner in which A cheated
B.
(c) A is accused of giving false evidence at a given time and place. The charge must set out that portion of the
evidence given by A which is alleged to be false.
(d) A is accused of obstructing B, a public servant, in the discharge or his public functions at a given time and place.
The charge must set out the manner obstructed B in the discharge of his functions.
(e) A is accused of the murder of B at a given time and place. The charge need not state the manner in which A
murdered B.
(f) A is accused of disobeying a direction of the law with intent to save punishment. The charge must set out the
disobedience charged and the law infringed.

Effects of errors in a Charge
In general, an error in a Charge is not material unless it can be shown that the error misled the accused or that the
error caused injustice. Section 215 says, "No error in stating either the offence or the particulars required to be stated
in the charge, and no omission to state the offence shall be regarded at any stage of the case as material, unless the
accused was in fact misled by such error or omission, and it has occasioned a failure of justice."

Illustrations:

(a) A is charged under section 242 of the Indian Penal Code (45 of 1860), with "having, been in possession of
counterfeit coin, having known at the time when he became possessed thereof that such coin was counterfeit," the
word "fraudulently" being omitted in the charge. Unless it appears that A was in fact misled by this omission, the error
shall not be regarded as material.
(b) A is charged with cheating B, and the manner in which he cheated B is not set out in the charge, or is set out
incorrectly. A defends himself, calls witnesses and gives his own account of the transaction. The court may infer from
this that the omission to set out the manner of the cheating is not material.
(c) A is charged with cheating B, and the manner in which he cheated B is not set out in the charge. There were
many transactions between A and B, and A had no means of knowing to which of them the charge referred, and
offered no defence. Court may infer from such facts that the omission to set out the manner of was, in the case, a
material error.
(d) A is charged with the murder of Khoda Baksh on the 21st January 1882. In fact, the murdered person's name was
Haidar Baksh, and the date of the murder was the 20th January. 1882. A was never charged with any murder but
one, and had heard the inquiry before the Magistrate, which referred exclusively to the case of Haidar Baksh. The
court may infer from these facts that A was not misled, and that the error in the charge was immaterial.
(e) A was charged with murdering Haidar Baksh on the 20th January, 1882, and Khoda Baksh (who tried to arrest
him for that murder) on the 21st January, 1882. When charged for the murder of Haidar Baksh, he was tried for the
murder of Khoda Baksh. The witnesses present in his defence were witnesses in the case of Haidar Baksh. The court
may infer from this that A was misled, and that the error was material.

The above illustrations show that when the accused in not misled, the error is not material. For example, in the case
of Rawalpenta Venkalu vs State of Hyderabad, 1956, the charge failed to mention the Section number 34 of IPC
but the description of the offence was mentioned clearly. SC held that the the section number was only of acedemic
significance and the ommission was immaterial.

Section 464 further provides that an order, sentence, or finding of a court will not be deemed invalid merely on the
ground that no charge was framed or on the ground of any error, omission or irregularity in the charge including any
misjoinder of charges, unless in the opinion of the court of appeal, confirmation, or revision, a failure of justice has in
fact happened because of it. If such a court of appeal, confirmation, or revision find that a failure of justice has indeed
happened, in case of omission, it may order that a charge be immediately framed and that the trial be recommenced
from the point immediately after the framing of the charge, and in case of error, omission, or irregularity in the charge,
it may order new trial to be held upon a charge framed in whatever manner it thinks fit.

As is evident, the object of these sections is to prevent failure of justice where there has been only technical breach
of rules that does not affect the root of the case as such. As held in the case of Kailash Gir vs V K Khare, Food
Inspector, 1981, the above two sections read together lay down that whatever be the irregularity in framing the
charge, it is not fatal unless there is prejudice caused to the accused.

Further, Section 216 allows the court to alter the charge anytime before the judgement is pronounced.

Section 216:
(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) lf the offence stated in the altered or added charge is one for the prosecution of which previous section is
necessary, the case shall not be proceeded with until such sanction is obtained, unless sanction had been already
obtained for a prosecution on the same facts as those on which the altered or added charge is founded.

Thus, even if there is an error in a charge, it can be corrected at a later stage. An error in a charge is not important as
long as the accused in not prejudiced and principles of natural justice are not violated.

Difference between Charge and FIR
A First Information Report is a description of the situation and the act that constitutes a cognizable offence as given
to the office in charge of a police station by any person. Such information is signed by the person giving the
information. If the information is given orally, it is reduced in writing by the officer in charge, read over to the
informant, and then signed by the person. The substance of this information is also entered into a register which is
maintained by the officer. This is the first time when an event is brought to the attention of the police. The objective of
the FIR is to put the police in motion for investigating the occurance of an act, which could potentially be a cognizable
offence.

An FIR is a mere allegation of the happening of a cognizable offence by any person. It provides a description of an
event but it may not necessarily provide complete evidence. No judicial mind has to be applied while writing the FIR.
However, upon receipt of an FIR, the police investigates the issue, collects relevant evidence, and if necessary,
places the evidence before a magistrate. Based on these preliminary findings of the police, the magistrate then
formally prepares a charges , with which the perpetrator is charged.

Thus, an FIR is one path that leads to a Charge. An FIR is vague in terms of the offences but Charge is a precise
formulation of the offences committed. An FIR is a description of an event, while a Charge is a description of the
offences committed in that event. An FIR may or may not name an offender but a charge is always against a person.
An FIR is always of a cognizable offence, but a charge may also include a non-cognizable offence.

Q. Explain the principle of separate charges for
distinct offences. Are there any exceptions? (sec 218,
219, 220, 221, 223). When can multiple offences be
charged separately, when can they be tried in the
same/different trial? What do you understand by
Joinder of charges?

The initial requirement in conducting a fair trial in criminal cases is a precise statement of the charges of the accused.
This requirement is ensured by CrPC through Sections 211 to 214, which define the contents of a charge. Precise
formulation of charges will amount to nothing if numerous unconnected charges are clubbed together and tried
together. To close this gap, Section 218 enunciates the basic principle that for every distinct offence there should be
a separate charge and that every such charge must be tried separately.

Section 218 says thus -
(1) For every distinct offence of which any person is accused there shall be a separate charge and every such charge
shall be tried separately:
Provided that where the accused person, by an application in writing, so desires and the Magistrate is of opinion that
such person is not likely to be prejudiced thereby the Magistrate may try together all or any number of the charges
framed against such person.
Illustration
A is accused of a theft on one occasion, and of causing grievous hurt on another occasion. A must be separately
charged and separately tried for the theft and causing grievous hurt.

The object of Section 218 is to save the accused from being frustrated in his defense if distinct offences are lumped
together in one charge or in multiple charges but tried in the same trial. Another reason is that the court may become
prejudiced against the accused if he were tried in one trial for multiple charges resting on different evidence since it
might be difficult for the court not be get influenced on one charge by evidence against him on other charges.
It must be noted that Section 218 says "distinct offences" must be charged and tried separated. It does not say "every
offence" or "each offence". It has been held in Banwarilal Jhunjhunwala vs Union of India AIR 1963, that "distinct
offence" is different from "every offence" and "each offence". Separate charge is required for distinct offence and not
necessarily for every offence or each offence. Two offences are distinct if they are not identical and are not in any
way interrelated. A distinct offence may distinguished from other offences by difference in time or place of
commitment, victims of the offence, or by difference in the sections of the law which make the acts as offence.

However, a strict observance to Section 218 will lead to multiplicity of trials, which is also not desirable. Therefore
sections 219 to 223 provide certain exceptions to this basic rule. These are as follows -
[3TBDGDJ]

Exception 1. Three offences of the same kind within a year - Section 219 - When a person is accused of more
than one offences of the same kind within a span of twelve months, he may be charged and tried at one trial for any
number of such offences not exceeding three. For example, if a person is accused of theft in three different homes in
the span 12 months, he can be charged with all the three at once and tried at the same trial. The period of 12 months
is counted from the occurance of the first offence up to the last offence.
An offence is considered to be of the same kind if it is punishable by the same amount of punishment under the same
section of IPC or of the local or special law. Further, if the attempt to commit an offence is an offence, then it is
considered an offence of the same kind for the purpose of this section.

Exception 2. Offences committed in the course of same transaction - Section 220(1) - If a person commits
multiple offences in a series of acts that constitutes one transaction, he may be charged with and tried in one trial for
every such offence. The code does not define the meaning of the term transaction. However, it is well accepted that a
precise definition of transaction is not possible and even Supreme Court has not attempted to define it. In case
of State of AP vs Cheemalapati Ganeshwara Rao, AIR 1963, SC observed that, it would always be difficult to
define precisely what the expression means. Whether a transaction is to be regarded as same would depend upon
the facts of each case. But is is generally thought that were their is proximity of time, place, or unity of purpose and
design or continuity of action in a series of acts, it may be possible that they form part of the same transaction. It is
however not necessary that every one of these elements should coexist for considering the acts as part of the same
transaction.
For example, A commits house-breaking by day with intent to commit adultery, and commits in the house so entered,
adultery with B's wife. A may be separately charged with, and convicted of, offences under sections 454(Lurking
house trespass or house breaking with an intention to commit offence punishable with imprisonment) and
497(Adultery) of the Indian Penal Code.

Exception 3 - Offences of criminal breach of trust or dishonest misappropriation of property and their
companion offences of falsification of accounts - Section 220(2) - Usually the offence of criminal breach of trust
or dishonest misappropriation of property is committed with the help of offence of falsification of accounts to conceal
the main offence. This section allows such offences to be charged with and tried at one trial.

Exception 4 - Same act falling under different definitions of offences - Section 220(3) - If an act constitutes an
offence under two or more separate definitions of any law in force, the person may be charged with and tried at one
trial for each of the offences. For example, A wrongfully strikes B with a cane. This act constitutes an offence as per
Section 323 (Voluntarily causing hurt) as well as Section 252 (Assult or criminal force otherthan on grave
provocation). Thus, the person may be charged with both and tried for both the offences at the same trial.

Exception 5 - Acts forming an offence, also constituting different offences when taken separately or in
groups - Section 220(4) - When several acts together constitute an offence and those acts, which taken individually
or in groups, also constitune another offence or offences, the person committing those acts may be be charged with
and tried at one trial. For example, A commits robbery on B, and in doing so voluntarily causes hurt to him. A may be
separately charged, with and convicted of offences under sections 323(Voluntarily causing hurt), 392(Robbery) and
394(Voluntarily causing hurt while committing robbery) of the Indian Penal Code.

Exception 6 - Where it is doubtful what offence has been committed - Section 221 - If a single act or a series of
acts is of such nature that it is doubtful which of the several offence the facts of the case will constitute, the accused
may be charged with having committed all or any of such offences and all or any of such charges may be tried at
once. Further, in such a situation, when a person is charged with an offence but according to evidence it appears that
he committed another offence, he may be convicted of the offence which he is shown to have committed even if he is
not charged with that offence. For example, A is accused of an, Act which may amount to theft, or receiving stolen
property, or criminal breach of trust or cheating. He may be charged with theft, receiving stolen property, criminal
breach of trust and cheating, or he may be charged with having committed theft, or receiving stolen property or
criminal breach of trust or cheating.
Further, in the same case mentioned, lets say, A is only charged with theft and it appears that he committed the
offence of criminal breach of trust, or that of receiving stolen goods. He may be convicted of criminal breach of trust
of receiving stolen goods (as the case may be) though he was not charged with such offence.

Another illustration is as follows - A states on oath before the Magistrate that he saw B hit C with a club. Before the
Sessions Court A states on oath that B never hit C. A may be charged in the alternative and convicted of intentionally
giving false evidence, although it cannot to be proved which of these contradictory statements was false.

Exception 7 - Certain persons may be charged jointly - Section 223 - The following persons may be charged and
tried together, namely:-
(a) persons accused of the same offence committed in the course of the same transaction;
(b) persons accused of an offence and persons accused of abetment of, or attempt to commit, such offence;
(c) persons accused of more than one offence of the same kind, within the meaning of section 219 committed by
them jointly within the period of twelve months;
(d) persons accused of different offences committed in the course of the same transaction;
(e) persons 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) persons accused of offences under sections 411 and 414 of the Indian Penal Code (45 of 1860) or either of those
sections in respect of stolen property the possession of which has been transferred by one offence;
(g) persons accused of any offence under Chapter XII of the Indian Penal Code (45 of 1860) 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 this Chapter shall, so far as
may be, apply to all such charges :

Provided that where a number of persons are charged with separate offences and such persons do not fall within any
of the categories specified in this section, the Magistrate may, if such persons by an application in writing, so desire,
and if he is satisfied that such persons would not be prejudicially affected thereby, and it is expedient so to do, try all
such persons together.
Q. What are the preliminary pleas that can be used to
bar a trial? "Every offence shall ordinarily be inquired
and tried by court within the local limits of whose
jurisdiction it was committed." Explain the statement
and state its exceptions, if any.

General Concept
When an accused appears or is brought before the court for a trial, he may raise certain pleas or objections to avoid
the trial. For example, he may plead that the court does not have jurisdiction in the case or that the offence happened
too long ago, or that he has already been tried and acquitted for the same offence. Such pleas are meant to stop the
trial from proceeding further and discharge the accused. However, such pleas may also be raised by prosecution
when the court does not have competency or jurisdiction in the case.
Such pleas are supposed to be brought forth at the beginning of a trial or as soon as charges are framed. However,
there is no explicit direction in Cr P C regarding the timing for such pleas.

The follow are the pleas that can be raised -

1. Court without Jurisdiction - Jurisdiction of criminal courts is of two kinds. One that determines the competency of
the court to try a specific offence and the other that determines whether the offence happened in the territory of the
court, which is also known as territorial jurisdiction.

Competency of the Court to try the offence - Section 26 read with column 6 of the first schedule determines which
court can try a given offence. For example, offences against public tranquility can be tried by any magistrate while the
offence of counterfeiting a government stamp can be tried only by a Court of Session. Similarly, only the prescribed
court or magistrate has the power for all the offences defined in IPC and other laws.
Thus, any party to the proceeding can raise the plea that the court is not competent to try the concerned offence.
Section 461 provides that it any magistrate, who is not empowered to try an offence, tries the offender for that
offence, the proceedings shall be void.

Also, an executive magistrate has no power to try for any offence.

Further, as per Section 479, no magistrate or judge can try any case in which he is a party or in which he is
interested. If a trial is initiated in violation of this rule, a plea can be raised in this regard.

Territorial Jurisdiction - This jurisdiction is determined according to Section 177 to 188 of CrPC. These rules have
been enacted mainly for the purpose of convenience of the court, the investigating agency, the accused, and the
victim. The general concept is that only the court in whose territory the offence or any part of offence has happened,
can try that offence. In simple terms, an offence committed in Mumbai cannot be tried in a court in Delhi. However,
most case are not as simple as that. For example, A hurts B by a knife in Dewas and D dies because of the wound in
Indore. In this case, both the courts in Dewas and Indore have jurisdiction. However, if the victim B lives in Bhopal
and if FIR of his death is filed in Bhopal, can A be tried in Bhopal? If not, and if A is tried in Bhopal, A can raise a
pleas to bar the trial in Bhopal.

Any violation of the rules of territorial jurisdiction does not ipso factor vitiate the trial unless it has in fact resulted in
failure of justice. However, if a plea of territorial jurisdiction is raised in the beginning of the trial, then such objection
must be sustained and the trial must be stopped. It cannot gain legitimacy under Section 462 in that case.

2. Time barred proceedings - Earlier, any offence committed could have been taken cognizance of after any
number of years. This caused grave injustice to the accused as important witnesses became unavailable, or
important evidence was destroyed by time. For these reasons, CrPC has now incorporated some general rules for
taking cognizance of the crimes within a specific period of their happening. In general, the principle that offences
punishable with only fine or with imprisonment up to 3 yrs should be tried within a limited time. The provisions
regarding such limitations are contains in Section 467 to 473 and an accused can take advantage of the appropriate
section to raise the plea that the case against him is barred by the prescribed period of limitation.

Section 468 contains the basic rule which provides that no court shall take cognizance of an offence punishable with
fine only or with imprisonment up to three yrs after the expiry of the period of limitation. The period of limitations are -

1. 6 months, if the offence is punishable by fine only.
2. 1 yr, if the offence is punishable with imprisonment of a term not exceeding 1 yr.
3. 3 yrs, if the offence is punishable with imprisonment of a term not exceeding 3 yr.

These provisions are subject to any other provision which might have been created explicitly for any particular
offence.
Trial of offences of serious nature, i.e. offences which entail punishment of imprisonment of more than 3 yrs, or death,
as of yet, are not barred by any time limitation.

3. Plea of autrefois acquit and autrefois convict - This means that if the offender has already been tried for the
exact same offence before and he has been either acquitted or convict in that trial, he cannot be tried again on that
offence. Art 20(2) of the constitution recognizes this principle as a fundamental right. It says that no person shall be
prosecuted and punished for the same offence more than once. While the article gives this right only upon previous
conviction, section 300 fully incorporates this principle.

4. Disabilities of the accused - Under the broad interpretation of Article 21 by Supreme Court, an accused has a
fundamental right to be represented by a legal practitioner in his trial. If he is indigent, it is the responsibility of the
state to provide a lawyer for him. Section 304 also requires the court to assign a pleader for the accused in certain
situations. If this is not done, a plea can be raised in this regard. If the trial still proceeds, despite the objects, the trial
is deemed to be vitiated.

Further, when the accused is of unsound mind and consequently incapable of making his defence, the code requires
the court to postpone the trial until the accused has ceased to be so. The accused can raise this plea for objecting the
trial.

5. Principle of issue estoppel -

6. Application of res judicata -

Q. Discuss the causes of Juvenile Delinquency. Who
is a child in need of care and protection? State the
procedure followed by Juvenile Justice Court. State
the orders that can be passed for delinquent children
under this act. Describe the main features of Juvenile
Justice (Care and Protection) Act, 2000. What
protections are given by the legislature and the
judiciary to juvenile delinquents?

Causes of Juvenile Delinquency
Common sense stuff

Reasons for enacting this act -
WHEREAS the Constitution has, in several provisions, including clause (3) of article 15, clauses (e) and (f) of article
39, articles 45 and 47, impose on the State a primary responsibility of ensuring that all the needs of children are met
and that their basic human rights are fully protected;
AND WHEREAS, the General Assembly of the United Nations has adopted the Convention on the Rights of the
Child on the 20th November, 1989;
AND WHEREAS, the Convention on the Rights of the Child has prescribed a set of standards to be adhered to by all
State parties in securing the best interests of the child;
AND WHEREAS, the Convention on the Rights of the Child emphasizes social reintegration of child victims, to the
extent possible, without resorting to judicial proceedings;
AND WHEREAS, the Government of India has ratified the Convention on the 11th December, 1992.
AND WHEREAS, it is expedient to re-enact the existing law relating to juveniles bearing in mind the standards
prescribed in the Convention on the Rights of the Child, the United Nations Standard Minimum Rules for the
Administration of Juvenile Justice, 1985 (the Beijing rules), the United Nations Rules for the Protection of Juveniles
Deprived of their Liberty (1990), and all other relevant international instruments.
BE it enacted by Parliament in the Fifty-first Year of the Republic of India as follows:-

Art 15(3) - State can make any special provision for women and children.
Art 39 (e) - It shall be the duty of the state to ensure that the health and strength of workers, men and women, and
the tender age of children are not abused and that citizens are not forced by economic necessity to enter avocations
unsuited to their age or strength;
Art 39 (f) - It shall be the duty of the state to ensure that children are given opportunities and facilities to develop in a
healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against
exploitation and
against moral and material abandonment.
Art 45/Now Art 21A - The State shall endeavor to provide, within a period of ten years from the commencement of
this Constitution, for free and compulsory education for all children until they complete the age of fourteen years.
Art 47 - The State shall regard the raising of the level of nutrition and the standard of living of its people and the
improvement of public health as among its primary duties and, in particular, the State shall endeavor to bring about
prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to
health.
Art 51(k) - It shall be the duty of the citizen of India who is a parent or guardian to provide opportunities for education
to his child or, as the case may be, ward between the age of six and fourteen years.

Child in need of care and protection [OPMUNEVACCC]
As per Section 2(d), "child in need of care and protection" means a child -

1. who is found without any home or settled place or abode and without any ostensible means of subsistence,
2. who resides with a person (whether a guardian of the child or not) and such person has threatened to kill or
injure the child and there is a reasonable likelihood of the threat being carried out, or has killed, abused or
neglected some other child or children and there is a reasonable likelihood of the child in question being
killed, abused or neglected by that person,
3. who is mentally or physically challenged or ill children or children suffering from terminal diseases or
incurable diseases having no one to support or look after,
4. who has a parent or guardian and such parent or guardian is unfit or incapacitated to exercise control over
the child,
5. who does not have parent and no one is willing to take care of or whose parents have abandoned him or
who is missing and run away child and whose parents cannot be found after reasonable inquiry,
6. who is being or is likely to be grossly abused, tortured or exploited for the purpose of sexual abuse or illegal
acts,
7. who is found vulnerable and is likely to be inducted into drug abuse or trafficking,
8. who is being or is likely to be abused for unconscionable gains,
9. who is victim of any armed conflict, civil commotion or natural calamity;
Neglected Child
The term neglected child has been removed from the current JJA and has been replaced with "Child in need of care
and protection" defined above. The old act defines "neglected juvenile" as a juvenile who-
(i) is found begging; or
(ii) is found without having any home or settled place of abode and without any ostensible means of subsistence and
is destitute;
(iii) has a parent or guardian who is unfit or incapacitated to exercise control over the juvenile; or
(iv) lives in a brothel or with a prostitute or frequently goes to any place used for the purpose of prostitution, or is
found to associate with any prostitute or any other person who leads an immoral, drunken or depraved life;
(v) who is being or is likely to be abused or exploited for immoral or illegal purposes or unconscionable gain;

Section 2(k) - "juvenile" or "child" means a person who has not completed eighteenth year of age;
Section 2(l) - "juvenile in conflict with law" means a juvenile who is alleged to have committed an offence;
Section 2(b) - "Begging" means -
i. soliciting or receiving alms in a public place or entering into any private premises for the purpose of soliciting or
receiving alms, whether under any pretence;
ii. exposing or exhibiting with the object of obtaining or extorting alms, any sore, wound, injury, deformity or
disease, whether of himself orof any other person or of an animal;

Composition and Procedure followed by Juvenile
Justice Court.

Composition
As per Section 4
(1) The State Government may constitute for a district or a group of districts specified in the notification, one or more
Juvenile Justice Boards for exercising the powers and discharging the duties conferred or imposed on such Boards in
relation to juveniles in conflict with law under this act.

(2) A Board shall consist of a Metropolitan Magistrate or a Judicial Magistrate of the first class, as the case may be,
and two social workers of whom at least one shall be a woman, forming a Bench and every such Bench shall have
the powers
conferred by the Code of Criminal Procedure,on a Metropolitan Magistrate or, as the case may be, a Judicial
Magistrate of the first class and the Magistrate on the Board shall be designated as the principal Magistrate.

(3) No Magistrate shall be appointed as a member of the Board unless he has special knowledge or training in child
psychology or child welfare and no social worker shall be appointed as a member of the Board unless he has been
actively involved in health, education, or welfare activities pertaining to children for at least seven years.

(4) The term of office of the members of the Board and the manner in which such member may resign shall be such
as may be prescribed.

(5) The appointment of any member of the Board may be terminated after holding inquiry, by the State Government, if
-
i. he has been found guilty of misuse of power vested under this act,
ii. he has been convicted of an offence involving moral turpitude, and such conviction has not been reversed or he
has not been granted full pardon in respect of such offence,
iii. he fails to attend the proceedings of the Board for consecutive three months without any valid reason or he fails to
attend less than three fourth of the sittings in a year.

Section 5 - Procedure
(1) The Board shall meet at such times and shall, observe such rules of procedure in regard to the transaction of
business at its meetings, as may be prescribed.
(2) A child in conflict with law may be produced before an individual member of the Board, when the Board is not
sitting.
(3) A Board may act notwithstanding the absence of any member of the Board, and no order made by the Board shall
be invalid by reason only of the absence of any member during any stage of proceedings: Provided that there shall
be at least two members including the principal Magistrate present at the time of final disposal of the case.
(4) In the event of any difference of opinion among the members of the Board in the interim or final disposition, the
opinion of the majority shall prevail, but where there is no such majority, the opinion of the principal Magistrate, shall
prevail.

Section 6 - Powers of the Board
(1) Where a Board has been constituted for any district or a group of districts, such Board shall, have power to deal
exclusively with all proceedings under this Act, relating to juvenile in conflict with law.
(2) The powers conferred on the Board by or under this Act may also be exercised by the High Court and the Court of
Session, when the proceedings comes before them in appeal, revision or otherwise.


Orders that can be passed for delinquent children

Section 15 - Orders that may be passed regarding a Juvenile

1. Where a Board is satisfied on inquiry that a juvenile has committed an offence, then notwithstanding anything to
the contrary contained in any other law for the time being in force, the Board may, if it thinks so fit,-
(a) allow the juvenile to go home after advice or admonition following appropriate inquiry against and counseling to
the parent or the guardian and the juvenile;
(b) direct the juvenile to participate in group counseling and similar activities;
(c) order the juvenile to perform community service;
(d) order the parent of the juvenile or the juvenile himself to pay a fine, if he is over fourteen years of age and earns
money;
(e) direct the juvenile to be released on probation of good conduct and placed under the care of any parent, guardian
or other fit person, on such parent, guardian or other fit person executing a bond, with or without surety, as the Board
may require, for the good behavior and well-being of the juvenile for any period not exceeding three years;
(f) direct the juvenile to be released on probation of good conduct and placed under the care of any fit institution for
the good behavior and well-being of the juvenile for any period not exceeding three years;
(g) make an order directing the juvenile to be sent to a special home,-
i. in the case of juvenile, over seventeen years but less than eighteen years of age for a period of not less than two
years;
ii. in case of any other juvenile for the period until he ceases to be a juvenile :
Provided that the Board may, if it is satisfied that having regard to the nature of the offence and the circumstances of
the case it is expedient so to do, for reasons to be recorded, reduce the period of stay to such period as it thinks fit.

2. The Board shall obtain the social investigation report on juvenile either through a probation officer or a recognized
voluntary organization or otherwise, and shall take into consideration the findings of such report before passing an
order.

3. Where an order under clause (d), clause (e) or clause (f) of sub-section (1) is made, the Board may, if it is of
opinion that in the interests of the juvenile and of the public, it is expedient so to do, in addition make an order that the
juvenile in conflict with law shall remain under the supervision of a probation officer named in the order during such
period, not exceeding three years as may be specified therein, and may in such supervision order impose such
conditions as it deems necessary for the due supervision of the juvenile in conflict with law .
Provided that if at any time afterwards it appears to the Board on receiving a report from the probation officer or
otherwise, that the juvenile in conflict with law has not been of good behavior during the period of supervision or that
the fit institution under whose care the juvenile was placed is no longer able or willing to ensure the good behavior
and well-being of the juvenile it may, after making such inquiry as it deems fit, order the juvenile in conflict with law to
be sent to a special home.
The Board shall while making a supervision order under sub-section (3), explain to the juvenile and the parent,
guardian or other fit person or fit institution, as the case may be, under whose care the juvenile has been placed, the
terms and conditions of the order shall forthwith furnish one copy of the supervision order to the juvenile, the parent,
guardian or other fit person or fit institution, as the case may be, the sureties, if any, and the probation officer.

In case of Municipal Corporation of Delhi vs Rattanlal, 1971, it was held that while allowing the release of a
juvenile, the court should consider the following - circumstances of the case, circumstances of the accused, age, and
family background.

Section 16 Orders that may not be passed against a Juvenile
(1) Notwithstanding anything to the contrary contained in any other law for the time being in force, no juvenile in
conflict with law shall be sentenced to death or life imprisonment, or committed to prison in default of payment of fine
or in default of
furnishing security :
Provided that where a juvenile who has attained the age of sixteen years has committed an offence and the Board is
satisfied that the offence committed is of so serious in nature or that his conduct and behavior have been such that it
would not be in his interest or in the interest of other juvenile in a special home to send him to such special home and
that none of the other measures provided under this Act is suitable or sufficient, the Board may order the juvenile in
conflict with law
to be kept in such place of safety and in such manner as it thinks fit and shall report the case for the order of the
State Government.
(2) On receipt of a report from a Board under sub-section (1), the State Government may make such arrangement in
respect of the juvenile as it deems proper and may order such juvenile to be kept under protective custody at such
place and on such conditions as it thinks fit :
Provided that the period of detention so ordered shall not exceed the maximum period of imprisonment to which the
juvenile could have been sentenced for the offence committed.

In Rejesh Kheton vs State of W B, 1983, it was observed that the main object of the provision contained in Section
16 of the act is to prevent the juvenile from the contact of hardened criminals so that they are saved from
contamination.

In Sheela Barse vs U of I, AIR 1986, it was held that juveniles should not be held in jail but in Shelter Homes.


Observation Home - Section 8
Special Home - Section 9
Bail to Juvenile - Section 12

Protections given by the legislature and the judiciary
to juvenile delinquents

Protection by Legislature - The legislature has enacted several laws for the protection of Juveniles. Most important
among them is Juvenile Justice (Care and Protection) Act, 2000.

Legal Protection
Through Juvenile Justice (Care and Protection) Act, 2000, several measures have been adopted to ensure that a
juvenile is not punished or treated like hardened criminals. Some of the measures are -

1. Hearing of cases involving juvenile by Juvenile Justice Board
2. Bail Provisions for juvenile
3. No prison term to juvenile.
4. No joint proceeding of Juvenile and Non Juvenile
5. Removal of disqualification attached to conviction
Social Protection
Juvenile Justice Act also contains measures to ensure that a juvenile in conflict of law is given opportunities to
reform.
1. Establishment of Observation and Special Home
2. Education and Training facilities
Preventive Measures

1. Several acts such as employment of juveniles in dangerous activities, forcing juveniles to beg, or steal, or
giving intoxicating substances to a juvenile, publication of names or other details of a juvenile in conflict of
law in media, have been made cognizable offences by JJA.
2. Supervision by Probation Officer to ensure that a juvenile is not influenced by bad elements.
Several other acts such as Factories Act, 1948 include provisions for protection of Juveniles.

Constitutional Provisions
Article 21A - Right to education
Article 24 Prohibition of employment of children in factories, etc. No child below the age of fourteen years
shall be employed to work in any factory or mine or engaged in any other hazardous employment.
Article 39 provides that that children are given opportunities and facilities to develop in a healthy manner and in
conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral
and material abandonment.
Article 45 Provision for free and compulsory education for children

Protections given by Judiciary
Judiciary has always been very sympathetic to the cause of Juveniles. Even before appropriate laws were enacted,
Judiciary promoted directives for the protection of juveniles through its judgement. For example, it was the judiciary,
which emphasized on Education for children by making it a fundamental right under Article 21.
Q. Discuss the aims and objectives of Probation of
Offenders Act, 1958. State the powers of the court
regarding release of certain offenders on probation of
good behavior under this act. Explain the offenses in
which a court can and cannot grant the benefit of
probation. Explain the procedure followed against the
offender who breaches the probation conditions.
Section 360 of CrPC and Section 4 of Probation of
Offenders Act both empower the court to release a
convicted offender on probation of good behavior.
Which section has overriding effect?

Mahatma Gandhi once said, "Hate the crime not the criminal". This means that we need to eliminate crime and
eliminating criminals is not the way to do it. While it is true that punishment gives a sense of satisfaction to the victims
and to the society in general, it has been observed that in most of the cases punishment, specially imprisonment,
does not actually reform the criminal. In most cases, once a person comes out of a prison, he gets back to his old
ways of being in conflict with the law. This is true even more with young criminals, whose minds are not fully mature.
They get influenced in the wrong way because of their interaction with hardened criminals in jails.

One way to counter this problem is to provide opportunities and guidance to young and first time offenders instead of
committing them to jails. The idea behind such treatment is that, normally, human beings do not resort to crime
unless they are forced due exceptional circumstances. If we want to reduce crime, we should make sure that chance
criminals are given an opportunity to get reformed instead of turning into hardened criminals. This is the aim behind
Probation of Offender's Act, 1958. It allows the court to take into account the nature of the crime, the age of the
offender, and the circumstances of the crime, and instead of committing the offender to jail, release him under
supervision and guidance of a probation officer. This ensures that the offender is integrated back into the society. The
act is based on the reformatory approach, which is adopted in many countries of the world. For example, in USA,
almost 60% of the offenders are released on probation.

The object of probation has been laid down in the judgment of Justice Horwill in In re B. Titus - S. 562 is intended
to be used to prevent young persons from being committed to jail, where they may associate with hardened criminals,
who may lead them further along the path of crime, and to help even men of mature years who for the first time may
have committed crimes through ignorance or inadvertence or the bad influence of others and who, but for such
lapses, might be expected to make good citizens. In such cases, a term of imprisonment may have the very opposite
effect to that for which it was intended. Such persons would be sufficiently punished by the shame of having
committed a crime and by the mental agony and disgrace that a trial in a criminal court would involve.

It must, however, be kept in mind that reformation does not always work. Some crimes are so abhorrent and some
criminals are so unrepentant that it is best to punish them so that the price of committing the crime keeps them from
committing it again. For some of them, there is no hope for reform, and it is best to protect the society from them by
locking them away for life.

Main Features of the Act / Powers of the court regarding release of
certain offenders

Depending on the circumstances of the case, a court may release the person in two ways - release after admonishing
the person, which is provided in Section 3, and release on probation of good conduct, which is provided inSection 4.
Both are explained below.

Release After Admonishing
Admonishing means to warn or reprimand. In this mode of release, the court scolds the person, and in a way, tries to
appeal to the good conscious of the person and releases him. Section 3 says thus:
When any person is found guilty of having committed an offence punishable under Section 379 or Section
380 or Section 381 or Section 404 or Section 420 of the Indian Penal Code or any offence punishable with
imprisonment for not more than two years, or with fine, or with both, under the Indian Penal Code or any other law,
and no previous conviction is proved against him and the court by which the person is found guilty is of opinion that,
having regard to the circumstances of the case including the nature of the offence and the character of the offender, it
is expedient so to do, then, notwithstanding anything contained in any other law for the time being in force, the court
may, instead of sentencing him to any punishment or releasing him on probation of good conduct under section 4,
release him after due admonition.

The conditions required to be released under this section are -
1. The offence must be punishable with imprisonment for less than 2 yrs or with only fine or with both. Or if the
offence is punishable under any of the Sections 379, 380, 381, 404, and 420.
2. The offender does not have any prior convictions.

If the above conditions are satisfied, then the court must take into consideration the nature of the crime and the
antecedents and character of the offender and if it thinks suitable, it can release the offender after warning.

Release on Probation
As per Section 4, if any person is found guilty of having committed an offence not punishable with death or
imprisonment for life and the court by which the person is found guilty is of opinion that, having regard to the
circumstances of the case including the nature of the offence and the character of the offender, it is expedient to
release him on probation of good conduct, then, notwithstanding anything contained in any other law for the time
being in force, the court may, instead of sentencing him at once to any punishment, direct that he be released on his
entering into a bond, with or without sureties, to appear and receive sentence when called upon during such period,
not exceeding three years, as the court may direct and in the meantime to keep the peace and be of good behavior.
The section further requires that the offender or his surety has a fixed place of residence or regular occupation in a
place where the court exercises jurisdiction.

Also, before making any such order, the court shall take into consideration the report, if any, of the probation officer
concerned in relation to the case. However, it is not necessary that the court has to act on probation officers report. It
can also gather information from other source and on its own analysis.

The court may also require the offender to remain under the supervision of a probation officer during certain period, if
it thinks that it is in the interests of the offender and of the public. It can also impose appropriate conditions which
might be required for such supervision. In case the court does specify such conditional release, it must require the
offender has to enter into a bond, with or without sureties, enumerating the conditions. The conditions may relate to
place of residence, abstention from intoxicants, or any other matter as the court thinks appropriate to ensure that the
crime is not repeated.

As per Section 5, the Court directing the release of an offender under section 3 or section 4, may, if it thinks fit, make
at the same time a further order directing him to pay-
(a) such compensation as the court thinks reasonable for loss or injury caused to any person by the commission of
the offence ; and
(b) such costs of the proceedings as the court thinks reasonable.

Offenses in which benefit of probation can and cannot be granted

Section 4, as described above, gives a general direction to the court for deciding when and when not to give the
benefit of probation. The words, "if the court is of the opinion" basically give discretionary power to the court in this
respect. Section 6, however, tries to impress upon the court to lean in favor of giving benefit in cases of young and
immature adults. When any person under twenty-one years of age is found guilty of having committed an offence
punishable with imprisonment (but not with imprisonment for life), the court by which the person is found guilty shall
not sentence him to imprisonment unless it is satisfied that, having regard to the circumstances of the case including
the nature of the offence and the character of the offender, it would not be desirable to deal with him under section 3
or section 4, and if the court passes any sentence of imprisonment on the offender, it shall record its reasons for
doing so. For the purpose of satisfying itself whether it would not be desirable to deal under section 3 or section 4, the
court shall call for a report from the probation officer and consider the report, if any, and any other information
available to it relating to the character and physical and mental condition of the offender.

Thus, even though no mathematical rule is given, the general intention of the legislature is to give the benefit of
probation as much as possible. In Jugal Kishore Prasad vs State of Bihar 1972, the Supreme Court observed that
the object of the Probation of Offenders Act, "is in accordance with the present trend in the field of penology,
according to which efforts should be made to bring about correction and reformation of the individual offenders and
not to resort to retributive justice. Modern criminal jurisprudence recognizes that no one is a born criminal and that a
good many crimes are the product of socio-economic milieu."

In absence of a precise formula to determine when and when not the benefit of probation can be given, we have to
look at SC court judgments to understand what kind of offenses are eligible for this benefit. SC has accepted the
applicability of probation for many kinds of offences. For example, in Isherdas v. State of Punjab, the Supreme
Court held that the Probation of Offenders Act was applicable to the offenses under the Prevention of Food
Adulteration Act, 1954.

In case of Mohamad Aziz Mohamed Nasir vs State Of Maharashtra, AIR 1976, the appellant was below 21 years
of age. The appellant was at one time a well known child film actor and won several awards for acting in films.
Subsequently he fell in bad company and took to evil ways. SC held that even if the point relating to Section 6 is not
raised before the High Court, the court was bound to take notice of the provisions of the section and give its benefit to
the applicant. It further held that Section 6 lays down an injunction not to impose a sentence of imprisonment on a
reason who is under 21 years of' age and if found guilty of having committed an offence punishable with
imprisonment other the that for if unless it is satisfied that it would not be desirable to deal with him under Section 3 or
Section 4. This inhibition on the power of the court to impose a sentence of imprisonment applies not only at the state
of trial but also at the stage of High Court or any other court when the case comes before it in appeal or revision.

However, in Uttam Singh vs Delhi Administration, 1971, the appellant was of 36 yrs of age and was caught with 3
sets of playing cards and obscene photographs. SC refused to allow him the benefit of release on probation having
regards to his age and nature of crime.

There have been cases where the court has let of even rapists on probation and there have been cases where even
minor offenses have not been given the benefit of probation. It can be said that this benefit is given on case to case
basis after looking at the peculiarities of the case. It is not possible to categorize the offences in this respect.

Procedure when the offender breaches the conditions of Probation
As per Section 9, if the court which passes an order under section 4 in respect of an offender or any court which
could have dealt with the offender in respect of his original offence has reason to believe, on the report of a probation
officer or otherwise, that the offender has failed to observe any of the conditions of the bond or bonds entered into by
him, it may issue a warrant for his arrest or may, if it thinks fit, issue a summons to him and his sureties, if any,
requiring him or them to attend before it at such time as may be specified in the summons.

The court before which an offender is so brought or appears may either remand him to custody until the case is
concluded or it may grant him bail, with or without surety, to appear on the date which it may fix for hearing.

If the court, after hearing the case, is satisfied that the offender has failed to observe any of the conditions of the bond
or bonds entered into by him, it may forthwith
(a) sentence him for the original offence; or
(b) where the failure is for the first time, then, without prejudice to the continuance in force of the bond, impose upon
him a penalty not exceeding fifty rupees.
(4) If a penalty imposed under clause (b) of sub-section (3) is not paid within such period as the court may fix, the
court may sentence the offender for the original offence.

It is important to note that the sentencing in respect of which the probation is given is merely suspended when the
offender is released on probation under Section 4. Thus, if any condition of the probation is violated, the court may
sentence the offender for the original offence without conducting a fresh trial.

Probation Officer and his duties
As per Section 13, a probation officer under this Act shall be - (a) a person appointed to be a probation officer by the
State Government or recognised as such by the State. Government ; or (b) a person provided for this purpose by a
society recognized in this behalf by the State Government; or (c) in any exceptional case, any other person who, in
the opinion of the court, is fit to act as a probation officer in the special circumstances of the case.

Section 14 - Duties of probation officers
A probation officer shall, subject to such conditions and restrictions, as may be prescribed,-
(a) inquire, in accordance with any directions of a court, into the circumstances or home surroundings of any person
accused of an offence with a view to assist the court in determining the most suitable method of dealing with him and
submit reports to the court.
(b) supervise probationers and other persons placed under his supervision and, where necessary, endeavor to find
them suitable employment ;
(c) advise and assist offenders in the payment of compensation or costs ordered by the court ;
(d) advise and assist, in such cases and in such manner as may be prescribed, persons who have been released
under section 4; and
(e) perform such other duties as may be prescribed.

Section 360 of CrPC and Section 4 of Probation of Offenders Act
As per Section 19, in the states where Probation of Offenders Act is enacted, Section 360 of CrPC shall cease to
apply. Thus, it is clear that Section 4 of Probation of Offenders Act has overriding effect.

Section 360 of CrPC - Order to release on probation of good conduct or after admonition :--(1)When any person not
under twenty-one years of age is convicted of an offence punishable with fine only or with imprisonment for a term of
seven years or less, or when any person under twenty-one years of age or any woman is convicted of an offence not
punishable with death or imprisonment for life, and no previous conviction is proved against the offender, if it appears
to the Court before which he is convicted, regard being had to the age, Character or antecedents of the offender, and
to the circumstances in which the offence was committed, that it is expedient that the offender should be released on
probation of good conduct, the Court may, instead of sentencing him at once to any punishment, direct that he be
released on his entering into a bond, with or without sureties, to appear and receive sentence when called upon
during such period (not exceeding three years) as the Court may direct, and in the meantime to keep the peace and
be of good behavior.
Differences and Short Notes.

Summons Case and Warrant Case
As per Section 2(w), "summons-case" means a case relating to an offence, and not being a warrant-case and as
per Section 2 (x), "warrant-case" means a case relating to an offence punishable with death, imprisonment for life or
imprisonment for a term exceeding two years. Cr P C classifies an offence as either cognizable or non-cognizable,
and a trial procedure as summons case or warrant case. Thus, the terms summons case and warrant case are in
reference to the procedure adopted for the trial of the case. Thus, the difference between the two can be seen from
the point of view of their trial procedures as highlighted below -

D2CCPAWO

Summons Case Warrant case
Cr P C prescribes only one procedure for all summons cases,
whether instituted upon a police report or otherwise.
Cr PC prescribes two procedures for the trial of
a warrant case my magistrate - one for case
instituted upon a police report and one for case
instituted otherwise than on a police report.
No charge needs to be framed only the particulars of the offence
needs to be conveyed to the accused.
A charge needs to be framed against the
accused.
As per S. 252, if the accused pleads guilty, the magistrate must
record the plea of the accused and may, in his discretion, convict
him on such plea.
As per S. 241, After the charge is framed, the
accused may plead guilty and the magistrate
may convict him on his discretion.
Accused my plead guilty by post without appearing before the
magistrate.
Accused must appear personally.
The accused may be acquitted, if the complainant is absent or if the
complainant dies.
Magistrate can discharge the accused if
complainant is absent, or no charge is framed,
or if the offence is compoundable and non
cognizable.
The complainant may, with the permission of the court, withdraw
the complaint against the accused.
The complainant may, with the permission of
the court, withdraw the remaining charges
against an accused, if he is charged with
several offences and convicted on one or more
of them.
When a warrant case is tried as a summons case and if the
accused is acquitted under S. 255, the acquittal will only amount to
discharge.
When a summons case is tried as a warrant
case and if the accused is discharged under S
245, the discharge will amount to acquittal.
Trial of a warrant case as a summons case it is a serious
irregularity and the trial is vitiated if the accused has been
prejudiced.
Trial of a summons case as a warrant case is
an irregularity which is curable under Section
465.
A summons case cannot have charges that require a warrant case.
A warrant case may contain charges that reflect
a summons case.
Accused gets only one opportunity.
Accused may get more than one opportunity to
cross-examine the prosecution witness.

A charge under a warrant case cannot be split
up into its constituents for trial under summons
case.
No such power to the magistrate in summons case.
After convicting the accused, the magistrate
may take evidence regarding previous
conviction not admitted by the accused.
All cases which are not punishable by death, imprisonment for life,
or for more than two years are summons cases.
All cases which are punishable by death,
imprisonment for life, or for more than two years
are warrant cases.
Conversion
As per Section 259, a summons case can be converted into a
warrant case if the case relates to an offence that entails more than
6 months of imprisonment as punishment and the judge feels that
in the interest of justice it the case should be tried as a warrant
case.
A warrant case cannot be converted into a
summons case.

It is important to note that the question whether a summons or a warrant should be issued in the case is not related to
whether the case is a summons case or a warrant case.



Compoundable and Non Compoundable Offences - Some offences largely affect only the victim and no
considerable harm is considered to be done to the society. In such offences, if the offender and victim compromise,
there is no need to waste court's time in conducting a trial. The process of reaching a compromise is called
Compounding. Conceptually, such offences, in which a compromise can be done and a trial can be avoided, are
called Compoundable offence. Rest of the offences are non-compoundable. Technically, offences classified as
Compoundable by Section 320 of Cr P C are compoundable. Section 320 specifies two kinds of Compoundable
offences - one where permission of court is required before compounding can be done for example, voluntarily
causing grievous hurt, Theft, criminal breach of trust, assault on a woman with intention to outrage her modesty, etc.
and one where permission of the court is not required for example, causing hurt, adultery, defamation, etc. As per S.
320(3), if the abetment of an offence is an offence and if the offence is compoundable then abetment is also
compoundable.

Only the person, who is specified in the classification tables in Section 320, has the right to compound the offence.
The person is usually the victim. The offender cannot demand compounding as a right.

However, when an offender has been committed to trial or when he has been convicted and his appeal is pending,
compounding can only be done with the leave of the court to which he is committed or to which the trial is pending. If
an offender is liable for enhanced punishment or a different punishment on account of a previous conviction,
compounding cannot be done. High Court and Court of Session may, under their power of revision in Section 401,
can allow any person to compound any compoundable offence.

When an offence is compounded, it is equivalent to an acquittal.

Compoundable Offence Section 320 Non Compoundable Offence
Offences classified as compoundable by S. 320 of CrPC Rest of the offences
Offence mostly affects a private party.
Private party as well as society both are
considerably affected by the offence.
The victim and the offender may reach compromise with or
without the permission of the court depending on the offence.
No compromise is allowed. Even court does not
have the power to compound the offence.
Upon compromise, the offender is acquitted without any trial.
Full trial is held and acquittal or conviction is
given as per the evidence.

In Bhima Singh vs State of UP, AIR 1974, SC held that when an offence is compoundable with the permission of
the court, such permission may be granted by SC while an appeal is made against the conviction provided the parties
have settled the matter amicably.
In Ram Lal vs State of J&K, 1999, SC held that when an offence is declared non-compoundable by law, it cannot be
compounded even with the permission of the court. However, the court may take the compromise into account while
delivering judgment.
The case of B S Joshi vs State of Haryana, AIR 2003 is interesting in this regard. The case was about the matter
related to Section 498A, which is non-compoundable offence. In this case, the parties reached a compromise but the
High Court refused to quash the FIR, on the ground that the offence is non-compoundable. However, SC held that in
the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the
principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power
under Article 226 or the inherent powers under Section 482 of the Code, such power could be exercised either to
prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to
lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulate and to
give an exhaustive list of myriad kinds of cases wherein such power should be exercised. It further observed that in
this case, the parties were not asking for compounding the offence but for quashing the FIR. It observed that since
because of the amicable settlement, there is no chance of conviction and in such a case the court has the power to
quash the proceeding.




Information and Complaint
Information Complaint
No legal definition. It is used in its regular English
meaning.
As per Section 2(d), a complaint means any allegation
made orally or in writing to a magistrate, with a view to his
taking action under this code (CrPC), that some person,
whether known or unknown, has committed an offence, but
does not include a police report.
No action from the magistrate is expected.
The purpose of complaint is that the magistrate takes action
on it and provide relief.
No cognizance is taken.
Magistrate takes cognizance of the offence as per Section
190.
It may include information about commission of
offences, apprehension about breach of peace, and
presence of absconder and suspected persons to
police officers or magistrate. Thus, an information may
not necessarily about an offence.
It is always about commission of an offence.


Sufficient grounds for commitment
Sufficient grounds for
conviction
When a magistrate takes cognizance of an offence under Section 190 (upon
receipt of a complaint or otherwise), he examines the complaint in accordance
with Section 200 by examining the facts and the witnesses. If he finds that the
complaint is with merits, the case is deemed committed for trial and the
magistrate issues the process under Section 204. If the offence is exclusively
triable by Court of Session, the magistrate commits the case to Court of Session
under Section 209.
Upon holding the trial, if the court
is satisfied with the evidence
provided by the prosecute that the
accused is guilty of the alleged
offence, he convicts the offender.
At this stage it is not considered whether the grounds are sufficient for conviction.
The evidence must prove the guilt
of the accused without any doubt.



Discharge and Acquittal
Discharge Acquittal
Session Trial
As per Section 227, if, upon consideration of the record of the case and
the documents submitted therewith, and after hearing the submissions of
the accused and the prosecution in this behalf, the Judge considers that
there is not sufficient ground for proceeding against the accused, he shall
discharge the accused and record his reasons for so doing.
Session Trial
If after evaluating the evidence given by
the prosecute, the judge considers that
there is no evidence that the accused has
committed the offence, the judge acquits
the offender under Section 232.
However, if the offender is not acquitted
under Section 232, he is permitted to give
his defense and evidence. After hearing
the arguments of both the parties, the
court may acquit of convict the person
under Section 235.
Warrant Trial By Magistrate
As per Section 239, if, upon considering the police report and the
documents sent with it under section 173 and making such examination,
Warrant Trial By Magistrate
As per Section 248, if, in any case under
this Chapter in which a charge has been
if any, of the accused as the Magistrate thinks necessary 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.
framed, the Magistrate finds the accused
not guilty, he shall record an order of
acquittal.
Discharge does not mean that the accused has not committed the
offence. It just means that there is not enough evidence to proceed with
the trial.
Acquittal means that the accused has
been held innocent.
If further evidence is gathered later on, the accused may be tried again.
The accused cannot be tried again for the
same offence once he has been acquitted.



Cognizable offence and Non-cognizable offence
Cognizable offence Non Cognizable offence
Defined in Section 2(c) - "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.
Examples - Murder, Dowry death, grevious hurt, theft.
Defined in Section 2(l) - "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.
Example - keeping a lottery
office,voluntarily causing hurt,
dishonest misappropriation of property.
Police has to record information about a cognizable offence in writing as per
Section 154.
As per Section 155, Police has to enter
information in register prescribed for it
and refer the informant to a magistrate.
Police can start investigation without the order of a magistrate.
Police officer cannot investigate the
case without the order of a magistrate.
In general, cognizable offences are of serious nature which involve
imprisonment of more than three years. However, there is no such precise
rule. To be cognizable, an offence must be declared so by the law defining
that offence. Several offences which carry less prison term such as rioting (2
yrs) have been declared cognizable, while several with bigger prison term
such as False Evidence (7 yrs) or Rape by a man with his own wife of not
less than 12 yrs have been declared non-cognizable.




First Information Report

The name FIR is given to the information given by any person about a cognizable offence and recorded by the police
in accordance with Section 154. As per this section, every information relating to the commission of a cognizable
offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his
direction, and be read over to the informant; and every such information, whether given in writing or reduced to
writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to
be kept by such officer in such form as the State Government may prescribe in this behalf.

SC in the case of State of Bombay vs Rusy Mistry, AIR 1960, defined FIR as so - A FIR means the information, by
whomsoever given, to the officer in charge of a police station in relation to the commission of a cognizable offence
and which is first in point of time and on the strength of which the investigation into that offence is commenced.

Thus, FIR is nothing but information of the nature of a complaint or accusation about a cognizable offence given by
any person to the police so that the police can start investigation. When a person reports any information about a
cognizable offence to the police, the police is bound to register a case and proceed with investigation. However, for
police to investigate the matter, the offence must be a cognizable offence. The police is not allowed to investigate a
non-cognizable offence without an order from a magistrate. So, once the duty officer is certain that the offence
alleged to have been committed is a cognizable offence, he directs the complainant to put his statement in writing. In
the presence of the complainant, the duty officer shall complete all the columns in the FIR register with the
information given by the complainant. He shall then read out all the contents of the FIR registered to the complainant.
Once the complainant is certain that all the details have been correctly written, he should sign the FIR.

FIR merely contains the facts of the offence as known by the informant. The FIR is a statement by the complainant of
an alleged offence. The informant is not required to prove his allegations in any manner at the police station. It is the
job of the police to ascertain facts, verify details and substantiate the charges or otherwise.

However, the facts must not be vague. The facts must divulge at least some concrete information about the offence
committed. In case of Tapinder Singh vs State, 1972, SC held that when a telephone message did not disclose the
names of the accused nor did it disclose the commission of a cognizable offence, it cannot be called a FIR.

In case of State of UP vs R K Shrivastava, 1989, SC held that if the allegations made in an FIR do not constitute a
cognizable offence, the criminal proceeding instituted on the basis of the FIR should be quashed.

Sometimes multiple persons may report the same incident and in such situation the police must use commonsense
and record one statement as FIR. Usually, the statement that contains enough information to allow the police to
proceed with investigation is recorded as FIR.

Evidentiary Value of FIR
A FIR is not substantive evidence that is, it is not evidence of the facts which it mentions. However, it is very
important since it conveys the earliest information about the occurrence of an offence and it can be used to
corroborate the information under Section 157 of Indian Evidence Act or to contradict him under Section 145 of Indian
Evidence Act, if the informant is called as a witness in a trial. It is considered that FIR has a better corroborative value
if it is recorded before there is time and opportunity to embellish or before the memory of the information becomes
hazy. There must be a reasonable cause for the delay. For example, in case of Harpal Singh vs State of HP,
1981,involving rape, the FIR was registered after 10 days. It was held that the delay was reasonable because it
involved considerable matter of honor for the family and that required time for the family to decide whether to take the
matter to court or not. As FIR can also be used in cross examination of the informant.
However, if the FIR is made by the accused himself, it cannot be used against him because of Section 25 of
Evidence act which forbids any confession made to the police to be used against the accused.

A FIR can also be used as a dying declaration under Section 32 of Indian Evidence Act.

Summary Trial
1. A kind of fast track proceeding where a case is resolved in one sitting.
2. Meant for petty offenses, to reduce the burden of court
S. 260 - When a case involving the following offenses comes to CJM, MM, and JMFC for hearing, they have the
discretionary power to decide whether they want to try the case summarily or not. There are 9 such offences -
any offence that does not have death, life imprisonment or imprisonment of more than 2 yrs as punishment, theft,
lurking house trespass, receiving stolen property, assisting in concealment of stolen property, abetment of the
offences covered under this section, attempt of these offences.
If at any point in while trying the matter in this manner, if the court thinks that it is undesirable to try the case
summarily, it shall recall any witnesses who may have been examined and proceed to re-hear the case in the manner
provided in this code (i.e. as a summons trial or warrant trial)
S. 261 - High Court may give power to Judicial Magistrate Second class to try offences involving imprisonment of less
than 6 months summarily.
S. 262 - Sentence of imprisonment of more than 3 months cannot be passed in a summary trial and the procedure
adopted in a summary trial will be same as the procedure adopted in a Summons case except the following changes
-
S. 263 - The judge must record the following particulars in the prescribed format - serial number of the case, date of
offence, date of complaint, name of complainant, name, age, address, parentage of accused, offence complained
and offence proved, plea of the accused and his examination, findings, sentence, and date of termination of the
proceeding.
S. 264 - If the accused does not plead guilty, the judge must record the substance of the evidence and give reasons
for the judgment.
S. 265 - Every the such record and judgment shall be in the language of the court.

In Ram Lochan vs State, 1978, it was held that although trying a govt. servant summarily is legal, it should not be
done so because upon conviction, govt. servant may lose his job, which is a serious loss.

Appeal and Revision in Summary Trials
No appeal lies if only a sentence of fine not exceeding 200/- is awarded. A revision application would lie to the High
Court in such a case.

The following topics are important for general understanding of CrPC
Unit 3 - Search and Seizure
What are the general principles relating to Search (Refer to Sec 99, 100, and 101)?. Can the police search
without a search warrant? (Police search during investigation - sec 165, 166, 153). When can any court issue
a search warrant (Sec 83, 94, 97, 98)?

What do you understand by Seizure (Sec 102)?

Discuss constitutional Aspects of validity or search and seizure proceedings.

Unit 4 - FIR

What do you understand by FIR (Sec 154)? What is its evidentiary value? (Refer Sec 145, 157 of Evidence
Act). What are the duties of a police officer and the procedure for investigation after receipt of such a report?
When can a police officer proceed for an Investigation Report? Is a statement given by the accused in police
custody admissible in evidence?

Unit 5 - Magisterial Powers

What do you understand by taking cognizance of an offence? Explain the procedure that is adopted in taking
cognizance or dismissal of complaint? What are the powers of a magistrate regarding taking cognizance?

Explain the circumstances under which a magistrate is empowered to remove public nuisance according to
criminal procedure code. What provisions have been made for the police to take preventive actions?

Unit 11 - Judgment

What are the essentials of a Judgment? What is the mode of its delivery (Sec 353, 362, 363)? Can a criminal
court alter or revise its own judgement after it is signed?

What are the post conviction options in lieu of punishment - emerging penal policy (Sec 360, 361, 31)?

Compensation and Cost (Sec 357, 358).
Unit 12 - Appeal, Review, and Revision
What do you mean by appeal, revision, and review? Does a criminal court have jurisdiction to review its
judgment without provision? Discuss the powers of the appellate court under CrPC.

Explain the procedure of appeal against the judgment of session court in High Court. In what cases, an
appeal cannot be made?

State the powers of the Govt. regarding suspension, remission, and commutation of sentences.

General

What do you understand by Summary trial? How is it different from Ordinary trial? Can a court convert a Summon
case into a warrant case? Explain.

Explain the procedure that is adopted for the trial of a Summon case and a Warrant case.

Explain the procedure prescribed for trial of an offence before the court of sessions.

Explain the irregularities which vitiate proceedings.