Professional Documents
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10.CHARGE SHEET: The investigating officer collects material from all sides and prepares a report, which he files in the court as charge-sheet. The charge-sheet is nothing but a final
report of police officer under Section 173(2) of the Cr.P.C. The statutory requirement of the report under Section 173(2) would be complied with of the various details prescribed therein
are included in the report. This report is intimation to the magistrate that upon investigation into a cognizable offence the Investigation Officer has been able to procure sufficient
evidence for the court to inquire into the offence and the necessary information is being sent to the court. In fact, the report under Section 173(2), purports to be an opinion of the
Investigating Officer that as far as he is concerned he has been able to procure sufficient material for the trial of the accused by the Court. The report is complete if it is accompanied
with all the documents and statements of witnesses required by Section 175(5). Nothing more need be stated in the report of the Investigating Officer. It is also not necessary that all the
details of the offence must be stated. The details of the offence are required to be proved to bring home the guilt to the accused at a later stage i.e. in the course of the trial of the case
by adducing acceptable evidence. CASE LAW;(K.VEERASWAMI vs UNION OF INDIA (1991) 3 SCC 655)
11.CHARGE Section 2(b): 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.
12Public Prosecutor: means any person appointed under section 24, and includes any person acting under the directions of a Public
Prosecutor.
There are several classes of public prosecutors: (section 24 read with Section 2(u) of Cr.P.C) 1.Public Prosecutor appointed by the Central Government, and
2.Public Prosecutor appointed by the State Government, under Sub-s(1)
3.Public Prosecutor, and
4.Additional Public Prosecutor, appointed by the State Government under
sub-s (2)
5.Special Public Prosecutor appointed by the Central Government, and
6.Special Public Prosecutor, appointed by the State Government, under sub-s (6)
7.The public prosecutor is an important officer of the state government and is appointed by the state government under the provisions of criminal procedure code .
The function of
the public prosecutor relates to a public purpose entrusting him with the responsibility of acting only in the interest of administration of justice. In the case of public prosecutors this
additional public element flowing from statutory provisions in Cr.P.C., undoubtedly, invest the PP with the attributes of holder of a public office which cannot be whittled down by the
ascension that their engagement is purely professional between a client and his lawyer with no public element attaching it.
The appointment og prosecutor is a compelling
constitutional/administrative necessity, the court cannot refuse to appoint prosecutor merely on the ground of financial constraint and also stop or stay criminal trial.
The
purpose of a criminal trial is not to support, at all costs a theory, but to investigate the offence and to determine the guilt or innocence of the accused, and the duty of a public
prosecutor is to represent not the police, but the state and his duty should be discharged by him fairly and fearlessly, and with a full sense of the responsibility that attached to his
position.
13.arrest :Section 41 of CRPC- When police may arrest a person without a warrant
As per Section 41 the following are the circumstances in which a Police
officer can arrest a person without a warrant. Provisions in the Code of Criminal Procedure 1973 are:
(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.
Section 42: of CRPC- Arrest on refusal to give name and residence:
The police have the power to
arrest a person if he refuses to give correct name and residential address. Police can arrest him to identify the actual place of residence. If it is a non cognizable offence, he may get bail
by completing necessary formalities or with the help of sureties. Provisions in the Code of Criminal Procedure 1973 are:
Section 42(1): of CRPC - Arrest of a person who does
not give name and address:
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.
Section 42(2): of CRPC - Release of a person arrested:When the true name and residence of such person have been ascertained,
he shall be released on his executing a bond, with or without sureties, to appear before a Magistrate if so required: Provided that, if such person is not resident in India, the bond shall be
secured by a surety or sureties resident in India
Section 42(3): CRPC - Person should be produced before the nearest magistrate within 24 Hours: 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.
Section 43: of CRPC- Arrest by Private person and procedure on such arrest: A private person also has
the authority to arrest a person in some cases. A private person has full power to arrest a person in the following cases. Provisions in the Code of Criminal Procedure 1973 are:
Section 43(1): of CRPC : 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.
Section 43(2): of CRPC If there is reason to believe that such person comes under the provisions of section 41, a
police officer shall re-arrest him.
Section 43(3) of CRPC : 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.
Section 44 CRPC- Arrest by Magistrate: A Magistrate has
Judiciary Power and can arrest any person in the following circumstances. Provisions related to arrest by Magistrate in Code of Criminal Procedure 1973 are:
Section 44(1) of
CRPC : 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.
Section 44(2) of CRPC:
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.
14.BAIL SECTIONS 440 TO 450 :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. S.440: amount of Bond to be executed should be fixed having
due regard to circumstances of each case and should not be excessive. The HC / Sessions courts have powers to reduce the Bail amount fixed by Police / Magistrates.
S.441(1):
Before a person is released on Bail, he has to execute a Bail Bond of such amount as fixed by the Police / Court. And when he is about to release on Bond, one or more sureties shall also
execute a Bond with the condition that said person will attend the court. (2) the Bail Bond shall contain the conditions on which the person was released.
S.442: discharge from
custody: as soon as Bond has been executed.
S.443: Taking sufficient Bail
S.444: discharge of sureties: by making an application to the concerned court.
S.445:
Deposit instead of recognizance: imposing cash security not permissible in law, however when the accused insists, the court can accept cash security.
S.446: Procedure when
Bond has been forfeited.
S.446A: Cancellation of Bail Bond.
S.447: insolvency or death of a surety.
S.448: Bonds in cases of Minor.
S.449: Orders passed under
section 446 are appealable to the higher court.
S.450: levy of amount on certain recognizance.