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.

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 noncognizable 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

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 rearrest 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.
described as follows

These rights can be

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

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 304 provides 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.
Differences and Short Notes.
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 a

The victim and the offender may reach compromise with or without the
permission of the court depending on the offence.

Upon compromise, the offender is acquitted without any trial.

No compromise is allowed. Even cour

Full trial is held and acquittal or convic

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 noncompoundable. 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.

Cognizable offence and Non-cognizable offen

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.

Police has to record information about a cognizable offence in writing as per Section 154.

Police can start investigation 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.

Non Cognizable offence

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.
As per Section 155, Police has to enter information in register prescribed for it and refer the
informant to a magistrate.

Police officer cannot investigate the case without the order of a magistrate.

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.

Summons Case and Warrant Case

As per Section 2(w), "summons-case" means a case relating to an offence, and not being a warrantcase 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
Cr P C prescribes only one procedure for all summons cases, whether instituted upon
a police report or otherwise.
No charge needs to be framed only the particulars of the offence needs to be conveyed to 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.
Accused my plead guilty by post without appearing before the magistrate.
The accused may be acquitted, if the complainant is absent or if the complainant dies.
The complainant may, with the permission of the court, withdraw the complaint against the accused.
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.
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.
A summons case cannot have charges that require a warrant case.
Accused gets only one opportunity.

No such power to the magistrate in summons case.

All cases which are not punishable by death, imprisonment for life, or for more than two years
are summons 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.

Warrant case
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.
A charge needs to be framed against the accused.
As per S. 241, After the charge is framed, the accused may plead guilty and the magistrate may convict him
on his discretion.
Accused must appear personally.
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 remaining charges against an accused,
if he is charged with several offences and convicted on one or more of them.
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 summons case as a warrant case is an irregularity which is curable under Section 465.
A warrant case may contain charges that reflect a summons case.

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.
After convicting the accused, the magistrate may take evidence regarding previous conviction not admitted
by the accused.
All cases which are punishable by death, imprisonment for life, or for more than two years are warrant cases.
A warrant case cannot be converted into a summons case.