UNIT- I` 1. Various powers of Courts. What are the modes of conferring and withdrawals of powers? INTRODUCTION:- Chapter III of the code deals with Powers of Courts to take cognizance of the offences. For this purpose the offences are divided into two groups, i) Offences under IPC and ii) offences under any other law. The courts by which these offences are triable are specified below:Courts by which offences are triable:- As per provisions laid down in section 26 the courts by which offences are triable:1. a) Any offence under IPC-45 may be tried by High Court. B) Session Court. c) Any other court by which such offence is shown in the first schedule to be triable. 2. Any offence under any other law, when any Court is mentioned in this behalf in such law, be tried by: i) High Court. ii) Any other court by which such offence is shown in the first schedule. Section 27: Jurisdiction in the case of Juveniles: Any offence not punishable with death or imprisonment for life who at the date when he appears or is brought before court under the age of 16 years may be tried by the court of CJM or any other court which specially empowered. Sentences which High Courts and Session Judges may pass: - As per provision laid down in Sect. 28 of the code that:- (i) High Court may pass any sentence authorized by law. (ii) Session Judge or ADJ may pass any sentence authorized by law but any sentence of death passed by such judges shall be subject to confirmation by the High Court. Sentences which Magistrates may pass:- Sec.29 of Code, The court of CJM may pass any sentence authorized by law except sentence of death or of imprisonment for life or imprisonment for a term exceeding 7 years. The court of Magistrate of Ist.Class may pass a sentence of imprisonment for a term not exceeding three years or of fine not exceeding Rs.10, 000. The court of 2nd Class Magistrate may pass an imprisonment for a term not exceeding One year or of fine not exceeding Rs.5000/- or of both. Sentence of Imprisonment in default of fine:-The court of Magistrate may award such term of imprisonment in default of payment of fine as authorized by law under sec.30 of the code, not exceeding one fourth of the term of imprisonment and also not excess of the powers of the Magistrate u/s 29. Sentence in cases of conviction of several offences:- Under Section 31 of code, when a person is convicted at one trial of two or more offences the court may subject to the provisions of section 71 of IPC sentence him for such offences to the severalpunishments prescribed therefore which such court is competent to inflict and pass such order and may direct unless the court directs that such punishments shall run concurrently, provided that:
1. In no case shall such person be sentenced to imprisonment for a longer period than fourteen years. 2. The aggregate punishment shall not exceed twice the amount of punishment which the court is competent to inflict for a single offence. 3. For the purpose of appeal by a convicted person the aggregate of constructive sentences passed against him shall be deemed to be a single sentence. MODE OF CONFERRING POWERS:-1. In conferring powers under this code the High Court or the State Government as the case may be by order empower person especially by name or in virtue their offices or classes of officials generally by their official titles. 2. Every such order shall take effect from the date on which it is communicated to the person empowered. WITHDRAWAL OF POWERS:-Section 34 of the code described that The High Court or the State Government as the case may be may withdraw all or any of the powers conferred by it under this code on any person or by any officer subordinate to it. 2. Any powers conferred by the CJM or the District Magistrate may be withdrawn by the respective magistrate by whom such powers were conferred. Powers of judges & Magistrates exercisable by their successors-in-office:- Under sec.35 of this code, the powers and duties of a judge or Magistrate may be exercised or performed by his successor-in-office. 2. When there is any doubt as to who is the successor-in-office of any additional or Assistant Session Judge, the Sessions Judge shall determine by order in writing the Judge who shall for the purposes of this code or of any proceedings or order there under be deemed to be successor-inoffice of such Addl. Or Assistant Sessions Judge. 3. When there is any doubt as to who is the successor-in-office of any Magistrate the CJM or the District Magistrate as the case may be shall determine by order in writing the proceeding or order there under be deemed to be successor-in-office of such magistrate. 2. Under what circumstances has a wife got to get maintenance from her husband? Can this right be exercised by parents and legitimate children? Explain. Dharamshastras have described the maintenance of wife, children and parents a moral duty of every person. Manusmriti in its chapter has confirmed this statement and also agreed to it that every person should maintain his wife, minor children and parents even after performing 100 obligations. Law also provides for maintenance of person. Right to maintenance of Wife, children and parents:-Sec125 of the Criminal Procedure Code, lays down the provisions of wife’s, children’s and parent’s right to maintenance. According to it: a)
- If any person having sufficient means neglects or refuses to maintain:His wife unable to maintain herself.
b) c) d)
His legitimate or illegitimate minor child, whether married or not, unable to maintain herself. His legitimate or illegitimate child (not being a married daughter) Who has attained majority, where such child is by reason of herself. His father or mother, unable to maintain himself or herself. Rohtas Singh V/s. Smt. Remendri-2000. Right of Maintenance of Illegitimate Child:-Sec. 125 (1) (b) and (c) of the code provides the
a)
right of maintenance to illegitimate son from his father if:He is unable to maintain himself or is a minor. b) If major then is unable to maintain him due to physical or mental abnormality injury.Smt.YamunabaiAnantraoV/sAnantraoShivram-1988. Parent’s right of Maintenance:- Sec. 125 (1) (d) of the code provide parents the right of
a) b)
a) b) c)
maintenance from their son, provided that:They are unable to maintain themselves, and Son has the sufficient means to maintain. Dr. Smt. Vijay ManoharArbatVsKashiraoRajaramSawai-1987. Section 125(4) of the code provides that wife shall not be able to take maintenance from his husband in following situations:When she lives in adultery. When she refuses to live with husband without any sufficient reason. When they live separately by mutual consent. Dev Narayan
HalderV/s
Smt.
AnushreeHalder-2003. Wife can claim maintenance when she lives separately from husband
a) b) c)
with sufficient reasons. T.C ChakoVsAnnamma-1994. Following are considered sufficient reasons for living separately:When husband has contracted marriage with another women. When husband keeps concubine and behaves with cruelty. When the husband is unable to have sexual intercourse due to impotency. Amount of Maintenance:-The amount of maintenance has not been fixed under Sec.125 of the code. Earlier, this amount of Rs. 500/- maximum for every person, but by the Criminal Procedure Code (Amendment) Act, 2001, the maximum limit has been abolished. Now this amount depends upon the discretion of the magistrate. Magistrate can order for the amount of maintenance which it considers sufficient. Generally the amount is fixed considering the position of parties, necessities, income of the husband etc. The amount of maintenance could be altered under Sec. 127 when there is change in the circumstances. This amount can be increased or decreased. When shall be the Maintenance paid:-Sec.125 (2) of the code provides that the amount of maintenance shall be paid:-From the date of order, or from the date of application. Application for Maintenance:-Sec.126 of the code provides that proceeding under 125 may be taken against any person in any district:- a)Where he is or where he or his wife resides. B) Where
he last resided with his wife, or as the case may be, with the
mother of the illegitimate child.
Case KumudumV/skanappam-1999. Consequences of Non-Compliance of Order:-Sec.125 (3) of the code provides that if any person fails to comply with the order without sufficient cause, then the magistrate may, for every breach of the order, issued a warrant for levying the amount and after the execution of the warrant may sentence such person for the whole or any part of each month’s allowance remaining unpaid, to imprisonment for a term which may extend to one month. 3. what are the cases in which a person is required to execute bond for maintaining peace for good behavior? Illustrate your answer. Peace and Good behavior are two important expectations of a civilized society. It is also the duty of state to attempt to maintain peace and good behavior. The sec. 106 to sec. 110 of the Criminal Procedure Code, 1973 takes a step in this direction. Provision related to peace and good behavior is following. 1. Security for keeping peace on Conviction:- Sec.106 provides for security for keeping peace on conviction. According to it-when a court of session or court of first class magistrate convicts any person for any of the following offences or of abetting such offence and is of the opinion that it is necessary to take security from such person for keeping peace, then the court may order him to execute a bond, with or without sureties’ for keeping the peace for such period not exceeding three years:a) Any offence which consists of assault or using criminal force ore committing mischief. B) Any offence of criminal intimidation.c) Any other offence which caused, or was intended or known to be likely to cause, a breach or peace. Inder Singh VsHarbans Singh1955. 2. Security for keeping peace in Other Cases:- Sec. 107 of the code lays down the provision for demand of security for keeping peace in certain matters. According to it: - a) A breach of peace. b) Disturb the public tranquility. c) Any wrongful act that may probably occasion a breach of peace or disturb the public tranquility. Then he may ordered that he shall execute a bond with or without sureties for keeping peace for such period not exceeding one year. (Ramnarayan Singh V/s State of Bihar-1972. 3. Security for good behavior from persons disseminating Seditious Matters:-Sec 108 lays down provision for taking security from person disseminating seditious matters. a)Any matter the publication of which is punishable under section 124-A or Sec 153A or Sec 153B or Sec 295A or the Indian Penal Code (45 of 1860). b) Any matter concerning a judge
acting or purporting to act in the discharge of his official duties which amounts to criminal intimidation or defamation under the Indian Penal Code (45 of 1860). Then such magistrate may demand such person to execute a bond, with or without sureties’, for his good behavior for such period not exceeding one year. This system has been declared constitutional in the public interest Kedarnath Singh V/s State of Bihar, 1962. 4. Security for good behaviour from Habitual Offenders:- Sec. 110 of the code lays down the provision for demand or security for good behaviour from habitual offenders. According to it, when an executive magistrate receives information that there is within his local jurisdiction a person who:- a)Is by habit a robber, house-breaker, thief, or forger, b)Is by habit a receiver of stolen property knowing the same to have been stolen. c) Habitually protects or harbors thieves, or aids in the concealment or disposal of stolen property. d) Habitually commits, or attempts to commit, or abets the commission of, the offence of kidnapping, abduction, extortion, cheating or mischief. e) Habitually commits or attempts to commit, or abets the commission of, offences, involving a breach of peace. f) Habitually commits, or attempts to commit, or abets the commission of any offence under:Then such may require such person to execute a bond with sureties for his good behaviour for such period not exceeding three years. Procedure:-Sec.111 to Sec 124 of the Criminal Procedure Code, 1973 lays down the procedure for taking security keeping peace and good behavior:1. When the magistrate receives any information under sec 107,108, 109 or sec 110 then the magistrate shall order him explaining the following points i) with the intention to require him to show cause why he should not execute a bond for keeping peace or good behavior Banarsi V/s Neelam-1969. a. If such person is not present in the court, then he shall be issued a summon and if such person is in custody than a warrant directing the officer in whose custody he is to bring him before the court shall be issued(Sec 113). b. Every summons or warrant shall be accompanied by the copy of order (Sec 114). c. If upon such inquiry, it is proved that it is necessary for keeping peace and maintaining good behaviour that such the magistrate shall require such bond (Sec 117). Here it is important that the ordered bond and amount of bond should be justifiable. It should not be so much that the related person cannot execute a bond of such amount.(Mohammed) 1. The bond to be executed by any person shall bind him to keep the peace or maintain good behaviour, and if such person commits later any offence or attempts to commit or its abetment then it shall be considered the breach of bond (Sec. 120)2. The period of bond shall commence on the date of
such order. If such person is undergoing imprisonment then such period shall commence on expiration of such sentence.(Sec 119). Here, it is important that:- a) A magistrate may refuse any surety on the ground that it is unfit but before doing so an inquiry shall be conducted (Sec 121) b) If any person fails to give security then such person shall be send to the prison (Sec 122). 4 Define the term Arrest. When a Police Officer can arrest a person without a warrant or without the order of the Magistrate? What the rights of an arrested person? Introduction:- Generally, a person is arrested by the order of the magistrate or by a warrant. A police officer cannot arrest a person arbitrarily or without the order of magistrate or without warrant. But this rule has few exceptions to it which means that under certain circumstances a person can be arrested without the order of the magistrate or without warrant. Arrest without warrant:- Sec. 41 of the Criminal Procedure Code 1973 provides that a police (1)
officer can arrest a person without the orders or warrant of the magistrate in following situations: When any person 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
(2)
exists. Of his having been so concerned. When any person has in his possession without lawful excuse any implement of house-
(3)
breaking. When any person 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
(4)
reference to such things. When any person obstructs a police officer while in the execution of his duty, or who has
(5)
escaped, or attempts to escape from lawful custody. When any person is reasonably suspected of being a deserter from any of the armed forces of
(6)
the union. When any person being a released convict, commits a breach of any rule made under sub-
(7)
section (5) of section 356; When for any persons arrest any requisition, whether written or oral, has been received from another police officer, provided that the requisition specifics the person to be arrested. Thus, in this way a police officer under sec 41(1) can arrest any person without the order or warrant of a magistrate. Arrest of Suspected or Habitual Offenders:-Sec 41(2) provides that a police officer can also arrest any person without the order or warrant from magistrate:a) Who belongs to the category of suspected offenders under sec 109 of the Code.
b) Who belongs to the category of Habitual offenders under sec 110 of the Code. Arrest on Refusal to give Name and Residence:- Sec 42(1) of the code provide that a police officer can also arrest any person without the order or warrant from magistrate. D) The person who gives a name or residence which such officer has reason to believe to be false residence of such person have been ascertained, then he shall be released on a bond with or without sureties. Devkinandan V/s Emperor-1941. Arrest to prevent a cognizable offence:-Another situation of a police officer arresting any person without the order or warrant from magistrate has been provided in sec 151 of the code. A police officer knowing of a design to commit any cognizable offence may arrest, without orders from the Magistrate and without a warrant, the person so designing, if it appears to such officer that the commission of the offence cannot be otherwise prevented. Thus sec 151(1) provides a police officer the powers to arrest a person without the order from the magistrate or without a warrant, when generally a person cannot be arrested without the order of magistrate and without warrant. (A.K GopalanV/s State-1962. RIGHTS OF THE ARRESTED PERSON:- Sec. 41D of the code:- 1.When any person is arrested and interrogated by Police he shall be entitled to meet an advocate of his choice during interrogation though not throughout interrogation. 2. Arrestee has the right to nominate his relative or any friend for giving information to him about his arrest.
UNIT – II 5. When may a criminal complaint be filed before the Magistrate? Discuss the power of Magistrate to decide criminal complaint. INTRODUCTION: Sec. 200 says, that the preliminary procedure which a Magistrate shall follow on receiving a complaint. It is obligatory to examine the complainant and the witnesses and a summary dismissal without them is not legal. 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. If a public servant acting or purporting to act in the discharge of his official duties or a court has made the complaint or the magistrate makes over the case for inquiry or trial to another Magistrate under sec.192.
1.
Procedure by Magistrate not competent to take cognizance of the case: If a complaint made to a Magistrate who is not competent to take cognizance of the offence he shall return it for presentation to the proper court with an endorsement to that effect or where the complaint is not in writing then he will direct the complainant to the proper court as provided in sec.201 of
2.
Cr.P.C.Case of Rajender Singh v/s State of Bihar, 1989. To Postponement of issue of Process:- Sec.202 of the code provided that where it appears to the magistrate that the offence complained is triable exclusively by the court of Sessions or where the complaint has not been made by a court unless the complainant and the witnesses present have been examined on oath under sec.200. If an investigation is made by a person not being a Police officer he shall have for that investigation all the powers conferred by this code on an officer in charge of a police station except the power o arrest without warrant. Sec. has provided to ascertain the following: i) to ascertain the facts constituting the offence. ii) To prevent abuse of process resulting in wastage of time of the court and harassment to the accused. iii) To help the magistrate to judge if there is sufficient ground for calling the investigation and
3.
for proceeding with the case. Case: Balraj Khanna v/s Motiram-1971. Dismissal of Complaint:- A Magistrate may dismiss a complaint if after considering the statement on oath of the complainant and of the witnesses and the result of inquiry or investigation under sec.202. But where there is sufficient ground for preceding the Magistrate cannot dismiss the complaint under sec.203 of the code. If he finds that no offence has been committed, if he distrusts the statement or if he distrusts the complainant may direct for further inquiry. In such cases he may refuse to issue process. Case Sulab Chandra v/s Abdula-1926.
These are the provisions under sec.203 of Cr.P.C. 4. No sufficient ground for proceeding:- When on the basis of evidence adduced no prima facie case is reasonable made out against the accused there is no sufficient ground for proceeding. It would be just wasting of time to proceed further in the case. The complaint could be dismissed as held in thecase of Dabendra Nath v/s State of W.B1972. 5. Recording of Reasons :- An order of dismissal of a complaint under this section is no bar to the entertainment of a second complaint on the same facts but it will be entertained only in exceptional circumstances which provide that the previous order was passed on an incomplete record or misunderstanding of the nature of the complaint. 6. Dismissal of complaint in default:- If the dismissal of the complaint was not on merit but on default or the complainant to be present. Then there is no bar in the complainant moving to the
Magistrate again with a second complaint. But if the dismissal of the complaint was on merits then the position could be different. In such cases the contention cannot be countenanced that the complainant lacked bona fides as he suppressed the fact of dismissal of the first complaint.
6. What do you mean by FIR? In what circumstances a Magistrate can make an order for investigation of an offence? OR What are the ingredient of FIR? What are the effects of delay in filing FIR? INTRODCTION:-First information report and investigation plays an important role in administering of criminal justice. It is expected that it should be recorded with utmost care and caution. It should be recorded without any delay so that doubt does not arise. FIR & Investigation determines that a prima facie case exist against the accused or not? Sections 154 of
i)
Cr.P.C.-1973 described in detail about FIR. ESSENTIALS OF F.I.R. Although the definition of FIR is no given in the Cr.P.C. however it may be as follows:It is information which is given to the Police Officer In- charge of the Police station. But it is not necessary to give always to Officer-in-charge. R. P. Kapoor v/s Sr.Partap Singh Kairon,
ii) iii)
1961. Information must relate to a cognizable offence. It is information first in point of time.
iv) v)
It is on the basis of this information that investigation into the offence commences. The FIR could be in any type i.e. written or oral. It can also be given on telephone. Sunil v/s State of MP, 1997. OBJECT OF F.I.R.:- The first and main object is to complain of any offence to a Police Officer so that criminal law could be applied. Hasib v/s state of Bihar, 1972. COMPONENT PART OF F.I.R.:- Generally it is essential that a detailed explanation of the happening should be given in FIR. But the prosecution cannot be dismissed merely on the basis that FIR does not contains the complete explanation of happening as in a case of Navratan Mahanto v/s State of Bihar-1980. Only gist of the happening in factual position needs to be mentioned. ENTRIES IN THE FIR REGISTER:- As soon as the Officer-in-charge receives information of commission of a cognizable offence entry to this effect must & immediately be made in the Register concerned without delay.State of Haryana v/s Choudhary Bhajan Lal, 1992. If any information isgiven orally, it should be recorded and then to read and obtained the signature of the person giving information. As described in a case of State of A.P v/s P. Ramulu, 1993 that FIR cannot be refused to be recorded on the ground that the offence was committed not within the jurisdiction. There should be no delay in registering FIR. Delay causes doubts. Gnash Bhawan Pated v/s State of Maharashtra, 1979. CIRCUMSTANCES WHEN MAGISTRATE ORDERSFOR
INVESTIGATION: -
Investigation begins with the FIR. If the FIR is regarding any non-cognizable offence then such information shall be recorded in the concern register and the person who is giving the information will be referred to the Magistrate. Meaning thereby that the investigation cannot be done without the order of the Magistrate. Section 155 of the Code of criminal procedure provides that:1. No Police Officer shall investigate a Non-cognizable case without the order of the Magistrate 2.
having power to try such case or commit the case for trial. Any Police officer receiving such order may exercise the same powers in respect of the investigation (except the power to arrest without warrant) as an Officer–in-charge of a police
3.
station may exercise in cognizable case. Where a case relates to two or more offences of which at least one is cognizable, the same shall be deemed to be a cognizable case, notwithstanding that the other offences are non-cognizable.
4.
An investigation in a non-cognizable offence made under the order of Magistrate is treated as in investigation under chapter-XII and the report will be submitted to the Magistrate under section 173(2). In cases of cognizable Offences, there is no need of the orders of the Magistrate to begin the investigation. However it has also been made clear by the Supreme Court a new provision under the code under section 155(4) which incorporates a view of Supreme Court that where a case relates to two or more offences of which at least one is cognizable the case shall be deemed to be a cognizable case, in-spite of the fact that other offences are non-cognizable, where there are both cognizable and non-cognizable offences mixed together the Police Officer can investigate even if there is single cognizable offence.
7. Discuss the provisions relating to Information to the police and their powers to investigate. INTRODUCTION: - Section 154 speaks of information relating to the commission of a cognizable offence given to an officer-in-charge of a Police Station. This section has a three-fold object that to inform the District Magistrate and Supdtt. Of Police who are responsible for maintaining peace and safety of the District. It is also pertinent to brought it in the notice of judicial officers before whom the case is ultimately tried. And the most important to safeguard 1.
the accused against subsequent variations or additions. INFORMATION IN CONIZABE CASES:- 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. Every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it. The officers receiving make the entries of the substance thereof in the prescribed Register
2.
available with him. Copy of the Information as recorded shall be given forthwith free of cost to the informant.
3.
Refusal to record the information:- If any officer-in-charge of police station refuses to record the information the informant may send to substance of such information to the Supdtt. Of Police concern who further on his satisfaction will investigate the case himself or direct to his
4.
subordinate. The information given to Police Office and reduced to writing as required under the section is called FIR. When any information discosing cognizable offence is laid before the Officer I/c of a Police Station, he has no option but to register the case of that base as held in State of Haryana v/s Ch.Bhajan Lal-1992.In a case of Gurpreet Singh v/s State of Punjab-2006:- It was held that merely non-disclosure of the names of witnesses in the daily diary as well as mortuary register cannot affect the prosecution of case. Case State of A.P. v/s V.V. Panduranga Rao-2009: It was held that statement given on telephone is to be treated as FIR because cryptic telephonic message of cognizable offence received by Police would not constitute FIR. The mere fact that the telephonic message was first
in point of time does not by itself clothe it with character of FIR. 5. Where FIR is lodged and what Object:- Generally the information about the offence committed is given to the Police Station of the place concern, but it does not mean that it cannot be lodged elsewhere. In a case of Punati Raube v/s State of A.P.-1993: The police constable refused to record the compalaint on the ground that the said police station had no territorial jurisdiction over the place of crime. Any lack of territorial jurisdiction could not have prevented the constable from recording information about the cognizable offence and forwarding the same 6.
to concern police station. The object of FIR: the main object of the FIR is to complain of any of the offence to a Police officer so that criminal law could be applied. Where the FIR was found o have been written after the inquest report was prepared the court held that it has lost its authenticity in the case ofBalaka
7.
Singh v/s State of Punjab-1975. IMPORTANCE OF FIR:- On consideration its important from every angle it is noticed that FIR is a very important from the occurrence of an offence. It should be given immediately after the offence is committed. The delay in giving information is viewed with grave suspicion as held in the case of Modivalappa -1966. There is no need to give the names of witnesses or other
8.
minute detail. Duty to register FIR:- In a case of Rajender Singh Katoch v/s Chandigarh Administration & Others-2008, that although the officer-in-charge of Police station is legally bound to register a FIR in term of sec.154. It was also held in Aleque Padamsee and Others v/s Union of India-
2007:- that in case of inaction of police officials in registering FIR person aggrieved can adopt modalities contained in sec.190 read with 200 Cr.P.C by laying complaint before the magistrate 9.
concern to take cognizance of offence. Delay in filing FIR: - Delay in giving FIR can be condoned if there is satisfactory explanation as held in Apren jospeh v/s State of Kerla-1973. Whether the delay is so long as to throw a cloud of suspicion on deeds of the prosecution case must be depend upon a variety of actors, Case Ram Jog v/s State of UP-
1974. 10. Delay in lodging FIR in rape cases:- In State Of Himachal Pradesh v/s Shreekant Shekari2004: That mere delay in lodging FIR does not anyway render prosecution version brittle. 11. Powers to investigate:-Under section156 the police is empowered to investigate into a cognizable offence without order of a Magistrate or without a formal first information report. If the police do not investigate the Magistrate can order for the investigation as in case of Abhyanand Jha v/s Dinesh Chandra-1968. Sec. 156(2) provides that no proceeding of a Police Officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this sec. to investigate, case Hari Singh v/s State of UP-2006. Sec.156(3) Any magistrate is empowered under sec.190 may order such an investigation , case Bateshwar Singh v/s State of Bihar-1992.
8. Brief the Jurisdiction of criminal Courts in inquiries &Trials. OR “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 exception. INTRODUCTION: - A Magistrate within whose local jurisdiction the offence is committed is competent to take cognizance and to try the case. The jurisdiction of the Magistrate does not come to an end by transfer of the locality, where the crime was committed to another district. The court having jurisdiction to try the offences committed in pursuance of the conspiracy can try the offence of conspiracy even if it was committed outside its jurisdiction under section 177. It makes it clear that an offence shall be inquired and tried by a court within the local limits of whose jurisdiction the offence was committed.B.Patnaik v/s Smt.Binand, 1970, it was held that court decided that offences shall be tried by a court within the local limits of whose 1.
jurisdiction the offence was committed. Place of inquiry or trial in certain matters:- Sec.178, when it is uncertain in which of several local areas an offences was committed. The offence is committed partly in one local area and
partly in another. Where an offence is continuing one and continues to be committed in more local areas than one. Then it may be inquired or tried by a court having jurisdiction over any of 2.
such local areas. State of M.P. v/s K.P.Ghiyara-1957. Offence triable where act is done:- An act is an offence by reason of anything which has been done and of a consequence which has ensued the offence may be inquired into or tried by a court within whose local jurisdiction such thing has been done or such consequence has ensued under sec. 179. Case Lal chand v/s State -1961is suitable example a gang was created for dacoity in a district but was committed in another district, it was decided that the case can be
3.
tried by the court of any of the two districts. Place of trial act is offence by reason of relation to other offence:-When an act is an offence by reason of its to any other act which is also an offence or which would be an offence if the door were capable of committing an offence the offence which is done first may be inquired into or tried by a court within whose local jurisdiction either act was done, under sec.180. Munna Lal v/s State of Rajasthan-1964: committing theft and receiving stolen property, such matter
can be tried by a court of any of the two places. 4. Place of trial in case of certain offences:-Any offence of being a thug or murder committed by a thug of dacoity, of dacoity with murder of belonging to a gang of dacoits or of escaping from custody may be inquired into or tried by a Court within whose local jurisdiction the offence was committed or the accused person is found. Under sec.181.Jaswant Singh v/s Emperor, 1918, in a matter of abduction of married woman for the purpose of unlawful intercourse, it can be tried 5.
that court within whose local jurisdiction the woman was detained. Offences committed by Letters etc:- Any offence which includes cheating may if the deception is practiced by means of letters o telecommunication message be inquired into or tried by any court within whose local jurisdiction such letters or messages were sent or were received and may offence of cheating and dishonesty including delivery of property may be inquired into or tried by a court within whose local jurisdiction the property was delivered by the person deceived or was received by the accused person under sec.182. Tekumalla Muneiah v/s C.B.Ammanamma, 1991: it was a case of bigamy the court held the complainant could be
entertained by the court having territorial jurisdiction over that place. 6. Offence committed on journey or voyage:- When an offence is committed while the person by or against whom or the thing in respect of which the offence is committed is in the course of performing a journey or voyage the offence may be inquired into or tried by a court through or
into whose local jurisdiction that person or thing passed in the course of that journey or voyage, u/sec.183. 7. Place of trial for offences triable together:- Sec.184 says, where the offence committed by any person are such that he may be charged with and tried at one trial for each such offence by virtue of the provisions of seec.219 or sec.220 or sec.221. The offence or offences committed by several persons are such that they may be charged with and tried together by virtue of the 8.
provision of sec.223.Case: Pursottam Dalmiya v/s State of W.B.-1961. Offences Committed Outside India:- When offences is committed outside India by a citizen of India, whether on the high seas or elsewhere or by a person not being such citizen on any ship or aircraft registered in India, he may be dealt with in respect of such offence as if it had been committed at any place in India at which he may be found.
9. Discuss the provisions as to maintenance of Pubic order tranquility in the case of Public nuisances. INTRODUCTION: - The cases of public nuisance which sec.133 of Cr. P. Code deals only for the public cases not in the nuisance of private cases. These cases are referred to Civil Courts. The proceeding under section 133 should be taken when in case of emergency where public shall be put to great inconvenience and shall suffer an irreparable injury. It can also be taken where the obstruction or nuisance has been in existence for a long period. Sec. 133 empowers a Magistrate to take action where there has been invasion of public rights. He cannot proceed when existence of public right is denied. 1. Scope of Section 133:- The unlawful obstruction or nuisance to any way river or channel lawfully used by the public or to public place. The conduct of any trade or occupation or the keeping of any goods or merchandise injurious to the health or physical comfort of the
community. A building, tent or a structure or tree as is likely to fall and cause injury to persons. Unfenced tank, well near a public way or place and a dangerous animal requiring destruction. In Shri Ram v/s State of U.P.-1992: Magistrate passed the order to remove the construction on public path. The opposite party denied the existence of public path itself. It was held that failure on the part of Magistrate to record whether such denial was correct or not would make the order of removal illegal. In Kachrulal Bhagirath Agarwal v/s State of Maharashtra-2004: The allegation was that red chilies were stored in godown in residential locality and loading unloading thereof was causing physical discomfort and injury to the health of people in the locality. The sub divisional magistrate upon considering evidence of residents in locality came to conclusion that people in general suffered. It was held that SDM should conduct inquiry on the basis of reliable evidence and take action accordingly. In Municipal Council Ratlam v/s Vardhichand and others-1980: Supreme Court examined the scope of section 133 and held that where there existed a public nuisance in a locality due to open drains, heaps of dirt, pits and public excretions by human for want of lavatories and consequential breeding of mosquitoes. The court further held that the Cr.P.C operates against statutory bodies and other regardless. 2. Service or Notification of order:- The order should be served to the person for whom it is made in the manner provided for the service of a summons. If such order cannot be served it shall be notified by proclamation published in such manner as the State Government may by rules direct and a copy of the same be stuck up at such place or places as may be fittest for conveying the information to such person under section 134 of the this code. 3. Person to whom order is addressed to obey or showcause: - U/S-135, on basis of instructions given in the order the person whom the order is given shall perform within the time and in the manners specified in the order. CaseNagarjuna Paper Mills Ltd. v/s S.D.M & R.D. Officer-1987 it was held that the water act has not taken away the power of S.D.M. under section 133and he can pass order under sect.136 to close a factory causing pollution when appreciation certificate is not produced. 4. Consequnces of his failing to do so:- Provisions have been made insec.136 that if such person does not perform such act or appear and show cause, he shall be liable to the penalty prescribed in that behalf in sec. 188 of the IPC and order shall be made absolute. 5. Proceedure where existence of public right is denied:- Where an order is passed for the purpose of preventing obstruction nuisance or danger to the public in the use of any way river,
channel or place, the Magistrate shall on the appearance before him of the person against whom the order was made. A case of Santosh Kumar sharmav/s Moti lal Mahawar-1993, it was held that it is absolutely clear that the Executive Magistrate before taking recourse to the proceedings laid down under sec.137. 6. Procedure where he appears to show-cause:- U/s 138, the magistrate is bound to take evidence as in a summon case. If on taking evidence the magistrate is satisified that it is reasonable and proper he can make the conditional order absolute otherwise further proceedings may be stopped. 7. Power of magistrate to direct local investigation and examination of an expert:Under sec.139 Magistrate may direct local investigation from such person as he thinks fit he may also summon and examine an expert. 8. Power of Magistrate to furnish written instructions etc.:- Undersec.140, may furnish such person with such written instructions or declare by whom the whole or any part of the expenses on local investigation shall be paid. 9. Procedure on order being made absolute and consequences of disobedience under sec. 141 of the act, magistrate can give notice and order him to perform he act within the time to be fixed in the notice. 10.Injunction pending inquiry:- Sec.142, measures to prevent imminent danger or injury of a serious kind to the public. Magistrate must see that the injunction of the kind reqired and it was issued against whom has failed to obey the same as held in case of Amar Krishna saha v/s Bipra charan dey-1965. 11. Magistrate may prohibit repetition or continuance of public nuisance:- u/s 143 says that Distt. Magistrate, SDM or Executive Magistrate may order any person not to repeat or continue a public nuisance. 12. Power to issue order in urgent cases of nuisance or apprehended danger: - U/s144 it deals with urgent cases of nuisance or apprehended danger Madhu Limaya v/s SDM, Manglyr1971, Magistrate was in bona fide exercise of his power & legal.
UNIT-III 10. DISCUSS THE JOINDER OF CHARGES UNDER CODE OF CRIMINAL PROCEDURE. INTRODUCTION:- The object of the rule embodied in the sec. 218 of Cr. P. C., is to ensure a fair trial and to see that the accused is not bewildered or perplex to confuse by having been asked
to defend several unconnected charges or distinct offences lumped together in one charge or in separate charges. We will read the rules relating to joinder of charges described in different part of this section. There is no exception to the rule that there should be separate charge for each offence. The detail study of this section is as under:DEFINITION: - For every distinct offence of which any person is accused there shall be a separate charge and every charge shall be tried separately. 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, Magistrate may try together all or any number of the charges famed 1.
against such person. Effect of Contravention of Sec.218:- The effect of the contravention of the provisions of this sec. has been considered by the Supreme Court in following number of cases:- Sushil Kumar v/s Joy Shankar-1971: It was held that charges under 408 and 477A of IPC could be tried together. In this case several persons accused on several items of embezzlement were tried jointly. There was no failure of justice in consequence of the joinder of charges had occurred. In V.N. KAMDAR v/s DELHI MUNICIPALITY-1973: It was held, “that the provisions of sec. 218 to 224 would indicate that separate charge and separate trial for such distinct offence is the
2.
normal rule and joint trial is an exception when the accused have committed separate offence.” Failure to Explain injuries on the accused:- When the prosecution fails to explain satisfactorily the injuries sustained by the accused there are number of judicial pronouncements on this point. Case State of Gujrat v/s Bai Fatima-1975: It was held that the accused had inflicted the injuries on the members of the prosecution party in exercise of the right of self-
3.
defence. Three offences of the same kind within year may be charged together:-under section 219 of Cr. P. C. when a person is accused of more offences than one of the same kind committed within the space of twelve months from the first to the last of such offences, he may be charged with and tried at one trial for any number of them not exceeding three. Provisions of section are only enabling provisions, it applies where offences are of the same kind but it does not apply where offences are not of the same kind such as criminal breach of trust and falsification of
accounts. Rahmat v/s State of U. P.-1980. 4. Trial for than one offence:- If in one series of Acts so connected together as to form the same transaction more offences than one are committed by the same person, he may be charged with and tried at one trial for every such offence as provided under section,220 of the Cr. P.C. Case Krishna Murthy v/s Abdu Subhan- 1965. Case of Kanshiram v/s Jhunjhunwala-
1935,with the same it was necessary to ascertain whether they are so connected together as to constitute a whole which can properly be described as a transaction. 5. Where it is doubtful what offence has been committed: - Sec.221 provides for the cases where it is doubtful what offence has been committed. It applies to the cases in which the facts are not doubtful but the application of law to the facts is doubtful as held in a case of Abdul Hamid -1935. This sec. applies where the doubt is about the nature of the offence and not about 6.
the facts as held in case Jatinder Kumar v/s State of Delhi-1992. When the offence proved included in offence charged: - Sec.222considered the conviction of minor offence included in the offence charged in either of two cases, where the offence charged consists of several particulars and combination is proved but the remaining particulars are not proved as held in Maung Ba v/s the King-1938. And where the facts are proved which reduce
7.
the offence charged to a minor offence as held in case of, Emperor v/sAbdul Wahab-1945. What persons may be charged jointly:- Under sec.223 joint trail of several persons is permissible and applies only to trials and not to inquires. A joint trial of several persons under this section is not vitiated merely by the facts that at the end of the trial the facts found happen to be different from those on the basis of which the charges were originally framed as held in case
8.
ofTrilokchand v/s Rex-1949. It was also held in case of A.R.Autulay v/s R.S.Nayak-1988. Withdrawal of remaining charges on conviction on one of several charges: - When a charge containing more heads than one is framed against the same person and when a conviction has been had on one or more of them, the complainant or the Officer conducting the prosecution may with the consent of the Court withdraw the remaining charge or charges. The court of its own accord may stay the inquiry into or trial of such charges. Court may proceed with the inquiry into or trial of the charge or charges so withdrawn.
11. Discuss the provisions of trail before a Court of Session. INTRODUCTION: - The procedure of trial of offences before court has been described in section 225 to sec. 237 of the Criminal Procedure Code-1973. Here it is important that any
matter does not come directly for trial before the Court of Sessions. Such matter is committed for trial to Court of Session. Any matter is committed to Court of Session when it has the exclusive jurisdiction to try such offence. 1. CONDUCTION OF TRIAL:- In every trial before a Court of Session, the prosecution shall be conducted by a Public Prosecutor as laid down insec.225 of the code. 2. OPENING THE CASE FOR PROSECUTION:- When the accused appears or brought by before the Court in pursuance of a commitment of the case under section 209 the prosecutor shall open his case by describing the charge brought against the accused and stating by what evidence he purposes to prove the guilt of the accused under sec. 226 of Cr. P. C. case of Hukam Singh v/s State of Rajasthan-2001. 3. DISCHARGE: - If upon the consideration of the record of the case and the documents submitted therewith and after hearing the submission 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 doing so. As held in case of T.V.Sharma v/s R.Meeriah-1980. It is called charge arguments; court has to consider the complete case carefully before giving order to discharge State of J&K v/s Romeshchandra1997. These are the provisions of sec.227. 4. Framing of charge: - While framing charges court shall only see that there is a prima facie case against accused or not. At this juncture there is no need for praising witnesses as held in case of State of M.P. v/s S.B. Johri-2000. Where the judge frames any charge, the charge shall be read and explained to the accused and accused shall be asked whether he pleads guilty of the offence charged or claims to be tried as provided in section 228 of Cr. P.C. 5. Conviction on Plea of Guilty: - If the accused pleads guilty the judge shall record the plea and may in his discretion convict him thereon. The plea of guilty only amounts to an admission that the accused committed the acts alleged against him. It was held in case of Tyron Nazarath v/s State of Maharashtra-1989. This is more so in case persons tried jointly when some plead guilty and the others claim to be tried, case of Bantra Kunjana-1960. These are provisions available in sec. 229 of Cr.P.C. 6. Date for Prosecution Evidence:- If the accused refuses to plead or does not plead or claims to be tried or is not convicted under sec.229, the Judge shall fix a date for the examination of witnesses and may on the application of the prosecution issue any process for compelling the attendance of any witness or the production of any document or other thing. Case Mukipad Mandal v/s Abdul Jabbar-1973, it is the duty of court to take all necessary steps to compel the
attendance of witnesses. The accused cannot be acquitted on the ground of failure of the witnesses to appear before the court, under sec. 230. 7. Evidence for Prosecution:- On the date fixed, the judge shall proceed to take all such evidence as may be produced in support of the prosecutionsec.231. when any witness appears before the court there shall be no delay as possible in his examination but if any delay happens in the examination of any witness the merely on this ground the prosecution matter cannot be suspended case of Bunty urf Guddu v/s State of M.P-2004. 8. Acquittal: - If after taking the evidence for the prosecution examining the accused and hearing the prosecution and he defence on the point the Judge considers that there is no evidence that the accused committed the offence the judge shall record an order of acquittal under sec. 232. The accused can either be convicted or acquittal but not discharged. 9. Entering Upon Defence :- Where th accused is not acquitted under sec.232 he shall be called upon to enter on his defence and adduce any evidence he may have in support thereof. It the accused puts in any written statement the judge shall file it with the record. If the accuse applies for the issue of any process for compelling the attendance of any witness or production of any document or thing the judge shall issue such person unless he considers such application for the purpose of vexation or delay or for defeating the ends of justice. Case State of MP v/s Badri Yadav-2006.These are the provisions in sec.233. 10. Arguments:- When the examination of witnesses for the defence is complete the prosecutor shall sum up his case and accused shall be entitled to reply. During his process where any point of law is raised by the accused the prosecutions mazy with the permission of judge make his submissions with regard to such point of law under sec. 234. It is called arguments. 11. Judgment:-After hearing both the parties the judge shall give a judgment in the case under sec.235.Case:Alluddin Mian Sharif Mian v/s State of Bihar-1989. 12. Previous Conviction: - If the accused is charge of previous conviction and the accused does not admit that then judge may take evidence in respect of the alleged previous conviction and record a finding thereon under sec. 236. 13. Procedure in cases instituted under Sec. 199:-Sec.237 of the code provides the procedure for trial of such matters which have been instituted under sec.199 (2). Sec.199 (2) provides for prosecution of defamation matters. If any matters of defamation is alleged to have been committed against the President of India, Vice-President, Governor of State, Administrator of UT, Minister of Union or State or Any other Public servant. If during trial court finds scope of acquittal he may pass such orders.
12. For every distinct offence of which any person is accused there shall be a separate charge and every such charge shall be tried separately. Explain are there any exceptions to this rule, if so what? INTRODUCTION:- Provisions relating to charge are aimed at giving complete information to the accused about the offence of which he is being charged. It gives the accurate precise information about the accusations made against him. Every charge shall state the offence with which the accused is charged. The charge shall be written in the language of the Court. The language of the charge should be specific and clear. WHAT IS CHARGE: - Sec.2 (b) of Cr.P.C.-1973 provides the definition of charge but it is neither definition as per dictionary meaning nor it is directing any meaning. It only says that, “Charge induces any head of charge when the charge contains more heads than one.” Charge is such a written statement of the information of offence against the accused person which contains the grounds of charge along-with time, place, person and things in relation to which offence is committed. The charge is a precise formulation of the specific accusation of an offence against the accused person. Accused prepares his defences on the basis of it. Components of Charge:- Sec.211 says that:1. Every charge shall state the offence with which the accused is charged. 2. If the law which creates the offence gives it any specific name, the same may be described by 3.
that name, like theft, robbery, dacoity or murder etc. If law does not give any specific name so much of the definition of the offence must be stated
for giving the notice to accused. 4. The Law and section of the law against which the offence is 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 6.
by law to constitute the offence is fulfilled. The charge shall be written in the language of the court. Case ofKrishan v/s State of Kerla-
1958.The court said that charge should be in Court’s language. 7. The previous conviction if any of the accused must be stated in the charge i.e. place, date and the fact of the offence. According to Sec. 212:- Particulars as to time place and person:1. The time of commission of the offence be given in the charge. 2. The place of commission of the offence may also be recorded in charge. 3. The person against whom or thing in respect of which it was committed. 4. The manner of committing offence must be stated in the charge u/s 213. 5. The words must be of sense of law under which offence is punishable u/s214.
Effect of Errors: - Section 215 of the code says that there should be no error in stating either the offence or the particulars required to be stated in the charge, there should also be no omission to state the offence or those particulars which at any stage of the case as material unless the accused was in fact misled by such error or omission which may results the failure of justice. Then such charge shall be considered faulty and the trial on the basis of such charge shall also be faulty. Court May alter the charge: Under sec.216, any court may alter or add to any charge at any time before the judgment is pronounced. Recall of Witnesses when charge altered:- under section 217, whenever the charge is altered or added to by the Court after the commencement of the trial the prosecutor and the accused shall be allowed to recall or re-summoned and examine the alteration and addition any witness who may have been examined. Separate charges for distinct offence: - The object of sec.218 is to ensure a fair trial and to see that the accused is not bewildered by having been asked to defend several unconnected charges or distinct offences lumped together in one charge, case of Aftab Ahmad Khan v/s State of Hydrabad-1954. Same offences of same kind within one year may be charged together: -sec. 219 provides that offences punishable under sec.379 and 380 IPC shall be deemed to be offences of the same kind. Criminal breach of trust and falsification of accounts, when the offence is committed by a single accused and is not applicable where several persons are tried jointly. Trial for than one offence:- Sec.220 provides If in one series of acts so connected together as to form the same transaction, more offences than one are committed by the same person, he may be charged with, and tried at one trial for every such offence. Case State of Biahar v/s Simranjit Singh-1987. Framing of charge where it is doubtful what offence has been committed:- sec.221 of the code provides for the framing of charge in those matters where there is doubt of what offence has been committed. In such matters, charge shall be framed as follows:All offences committed as a result of the nature of Act. All or any of such offences charged in the alternative with having committed some one of the said offences. Goverdhan v/s Kanilal-1953. When offence proved included in offences charged:- When a person is charged with an offence consisting of several particulars or an offence and facts are proved which reduce it to a minor will be convicted of the minor, case of State of Maharashtra v/s Rajendra Jawanmal Gandhi-1997, Sangarobina Sreenu v/s State of A.P.-1997. These are the provisions of Sec.222 of the code.
Withdrawal of remaining charges on conviction on one of several charges:- Sec.224 of the code says that when a charge containing more heads than one is framed against he same person and when a conviction has been had one or more of them the applicant or prosecution with the consent of court withdraw the remaining charges or court of its own accord may stay the inquiry or trial.
13. Difference between procedure of trial for warrant case and Summon Case? INTRODUCTION: - Police report is defined in this Code and according to these provisions ‘Police report means a report forwarded by a police officer to a Magistrate under sec. 173 of the code. When in any warrant case instituted on a police report the accused appears or is brought before a Magistrate at the commencement of trial. Magistrate shall satisfy himself that he has complied with provision of the code. There are two categories in which the criminal cases can be classified on the provisions laid i)
down in the code:Summon Case:- Definition of summon case is given in Sec.2(x)means, Summon case means
ii)
a case relating to an offence not being a warrant case. Warrant Case: Means a case relating to an offence punishable with death, imprisonment for life or imprisonment for a term exceeding two years. The criteria of summons case and warrant case determines the duration of punishment in any offence is punishable with fine of Rs.50/- then such matter is summon case, a case of Public Prosecutor v/s Hindustan Motors, AndhraPradesh-1970. The issue of summon or warrant in any case does not change the nature of the case, supposing warrant is issued in a summon case is does not make the case a warrant case, in case of
Padamnath v/s Ahmad Dobi-1970. A. Procedure of trial of Warrant Case:- lays down the procedure for a warrant case:i) Cases must be instituted upon police report:-Sec.238 of the code lays down the procedure of trial of warrant cases instituted upon police report and according to it procedure of trial is as a)
under :Copy of the police report and other document to be provided to the accused on institution of any warrant case when the accused appears or brought before a magistrate at commencement of the
trial. b) Discharge of accused on groundless charges: - On receiving the police report & other documents and providing of the accused the magistrate shall consider the each report. He shall provide reasonable opportunity of hearing to accused and prosecution (it is commonly called
charge argument); the magistrate shall examine the accused if necessary. If the magistrate finds that the charge against the accused is groundless he shall discharge the accused under sec.239. c)
He will also check the prima facie of the case. Case of State v/s Sitaram Dayaram-1959. Framing of charge:-If the magistrate is of the opinion that there is a ground for presuming that the accused has committed an offence and is competent to try such offence which can adequately punish the accused in his opinion. Then the charge shall be framed against the accused in writing
d)
and trial will start. Case of Col.S.Kashyap v/s State of Raj.-1971. Conviction of plea of guilty:-if the accused pleads guilty the magistrate shall record the plea
and may in his discretion convict him. e) Evidence for prosecution: - If the accused refuses to plead guilty and claims to be tried, the magistrate shall fix a date for the examination of the witnesses, u/s 242, and case State v/s Suwa-1962. f) Evidence for defence:- u/s 243 on completion of prosecution witnesses, defence witnesses produces by the accused, the expenses on compelling the attendance of the witnesses shall be borne by the accused. B. Cases instituted otherwise than upon police report: - The procedure of trial for summons ii) iii) iv) v)
cases is less brief in nature. There is no need of framing of formal charge in summons cases. Accused can be convicted or acquitted. Summons case cannot be reopened after completed once. Complainant can withdraw his complaint in summons case. Its effect would be acquittal of
vi) vii) viii) ix)
accused. In summon cases summons are generally issued to the accused. Accused is not required to be heard on the question of sentence in summon case. In summon cases there is no need of arguments generally before substance prosecution. In summon case if the accused pleads guilty the Magistrate shall record the plea and may
x)
convict him on that basis under sec.252. In summons case if the magistrate does not convict the accused on his plea of guilty he shall proceed to hear the prosecution and take all evidence. He will also hear the accused and take all
xi)
evidence produced by the accused under sec. 254(1). u/s 257, on satisfaction of the magistrate he may permit the complainant to withdraw his
xii)
complain thereupon the accused shall be acquitted. In a summon case no provisions authorizing the magistrate to permit the cross-examination of
xiii)
any prosecution witnesses to be deferred or recall of any witness for further examination. In summon case when summon has been issued to complainant and he fails to appear on fix date the accused may acquit unless for some reasons he thinks to adjourn the hearing of the case to some other day u/s 257.
14. Discuss in brief the general provisions as to inquiries and trails under the Criminal Procedure Code-1973. INTRODUCTION: - A Magistrate within whose local jurisdiction the offence is committed is competent to take cognizance and to try the case. A Magistrate has no jurisdiction to take cognizance of a case which has wholly been committed outside his jurisdictional limits. The jurisdiction of the magistrate does not come to an end by transfer of the locality, where the crime 1.
was committed to another district. The followings provisions are laid down in the code:Ordinary place of inquiry and trial: - Every offence shall ordinarily be inquired into and tried by a court within whose local jurisdiction it was committed. Word ordinarily means except in the cases provided hereinafter to the contrary. Under sec. 177 of the code. Case of Ramnarayan
2.
kapur-1936 and Nurumal v/s State of Bombay-1960. Place of inquiry or trial: - Where an offence is committed partly in one local area and partly in another or is a continuing one and continues to be committed in more local areas than one and where it consists of several acts done in different local areas court having jurisdiction over any of
3.
such local areas, under sec.178 of the code. Case HiraLal v/s Emperor-1946. Offence triable where act is done or consequence ensues:-When any act is an offence by reason of anything which has been done and of consequence which has ensued the offence may be inquired into or tried by a Court within whose local jurisdiction such thing has been done or
4.
such consequence has ensued under sec.179 of the code. State v/s Dhulaji Bavaji-1963. Place of trial where act is an offence by reason of relation to other offence:-When an act is an offence by reason of its relation to any other act which is also an offence or which would be an offence it the doer were capable of committing an offence the first mentioned offence may be inquired into or tried by a court within whose local jurisdiction either act was done,
5.
under sec.180 of the code. Place of trial in case of certain offences: - Where it is difficult for the complainant to find out as to where the misappropriation actually occurred jurisdiction lies at the place where the property had to be delivered. Sec.410 of IPC gives a wide meaning to stolen property. These are the provisions ofsec.181 of the code. Case of Emperor v/s Laxman-1926.
6.
Offences committed by letters etc.:- Sec.182 of the code says that, Any offence which includes cheating may if the deception is practiced by means of letters or telecommunication message be inquired into or tried by any court within whose local jurisdiction. Case Bhola nath
7.
v/s State-1982. Offence committed on journey or voyage: Sec. 183 provides that the expression journey & voyage under this section does not include a voyage on the high seas or in a foreign territory of
8.
India. Case of Queen v/s Piran-1874. Place of trial for offences triable together: - There are provisions in thesection 184 of the code that where an offence is committed in pursuance of conspiracy, the court having jurisdiction to try that offence may try the offence of conspiracy even if it was committed outside its
9.
jurisdiction. Case L.N.Mukerjee v/s State of Madras-1961. Power to order cases to be tried in different sessions divisions: -Notwithstanding anything contained in the preceding provisions, the state government may direct that any cases committed for trial in any district may be tried in any session division, under sec.185. Case of Supdt. Of
Police v/s Ferozuddin Basheeruddin-1993. 10.High Court to decide in case of doubt, where inquiry or trial shall take place:Sec.186 provides that where two or more courts have taken cognizance of the same offence and a question arises as to which of them ought to inquire into or try that offence this will be decided by the High Court. 11.Power to issue
summons
or
warrant
for
offence
committed
beyond
local
jurisdiction :- When a magistrate of first class sees reason to believe that any person within his local jurisdiction has committed outside jurisdiction an offence which cannot under the provisions of sections or any other law for the time being in force be inquired into or tried within his local jurisdiction and compel the person to appear before him or send him to the Magistrate under whose jurisdiction the offence is committed, under sec.187. 12. Offence committed outside India:- Section l88 of the code says that when an offence is committed outside India by a citizen of India whether on the high seas or elsewhere and also by a person not being such citizen on any ship or aircraft registered in India. He may be dealt with in respect of such offence as if it had been committed at any place within India at which he may be found. Case of Emperor v/s Maganlal-1882. 13.Receipt of evidence relating to offences committed:-Sec. 189 of the code says that, when an offence alleged to have been committed in a territory outside India is being inquired into or tried under the provision of sec. 188, the court holding such inquire or trial in any case in which such
court might issue a commission for taking evidence as to the matters to which such depositions or exhibits relate.
UNIT- IV 15 What do you mean by Judgment? What are the contents of judgment? Discuss the powers of High court to confirm death sentence? INTROUDCTION: - After hearing both the parties the Judge give a judgment in the case. The judgement in every trial in any criminal court of its own jurisdiction shall be pronounced in the open court by the presiding officer immediately after the termination of the trial or at some subsequent time of which notice shall be given to the parties or their pleaders. 1. Section 353 of the cr. procedure code-1973 provides:-The judgment in every trial in any criminal court in its own jurisdiction shall be pronounced in open court by the presiding officer immediately after the termination of the trial or at some subsequent time of which notice shall be given to the parties or their pleaders. Case Anthony v/s State-1993. It was also held in a case of Yelchuri Manohar v/s State of A.P-2005, that electronic media cannot provide any guiding factors. 2. Language and contents of Judgment: - That every judgment shall be written in the language of the Court. It may also contain the point or points for determination, the decision thereon and the reasons for the decision, as provided in sec. 354 of the code. Case of Ram Bali v/s State of U.P. -2004. The language and the contents of the judgment must b self-contained and must also show that the court has applied its mind to the facts and the evidence, as held in case of Niranjan V/s State -1978. Failure to signing of judgment at the time of pronouncing it is only a procedural irregularity curable as per instructions provided in the code. 3. Judgment of Metropolitan Magistrate: - That instead of recording a judgment in the manner provided a metropolitan magistrate shall record the serial number of the case, the date of commission of the offence along-with the name of the complainant. The name of the accused person his parentage and residence mentioning the plea and examination of accused. The date of final order may also be recorded as provisions laid down in sec.355.
4. Order for notifying address of previously convicted offender: - Sec. 356 of the code provides that, when any having been convicted by a court in India of an offence punishable. If such conviction is set aside on appeal or otherwise such order shall become void. State Govt., can make rules to carry out the provisions relating to the notification of residence. 5. Order to pay compensation:-The quantum of compensation is to be determined by taking into consideration the nature of the crime, injury suffered and the capacity of the convict to pay in case of Manish Jalan v/s State of Karnatka-2007. These are the provisions of the section 357. 6. Scheme for compensation to victim:-In every state with the coordination with the central Govt., shall prepare a scheme for providing funds for the purpose of compensation to the victim or his dependents who have suffered loss or injury as a result of the crime and who require rehabilitation under sec.357A. 7. Compensation to persons groundlessly arrested: - Sec. 358 provides that whenever any person causes a police officer to arrest another person if it appears to the Magistrate by whom the case is heard that there was no sufficient ground of causing such arrest. The Magistrate may award such compensation not exceeding 1000/- rupees as held in case of Parmod Kumar v/s Golekha1986. 8. Order to pay costs in non-cognizable cases: - Sec.359 says that whenever any complaint of a non-cognizable offence is made to a court, the court if it convicts the accused can order to pay the penalty along-with cost incurred by the complainant and in case of default of payment the accused can sentence simple imprisonment for a period not exceeding 30 days. 9. Order to release on probation of good conduct after admonition:-Sec.360 says that this section is a piece of beneficent legislation. It applies only to first offenders. It enables the court under certain circumstances to release the accused who has been convicted on probation of good conduct as in a case of Ved Parkash v/s State of Haryana-1981. 10. Special reasons to be recorded in certain cases: - Where in any case the court could have dealt with an accused person under the provisions of offenders Act a youthful offender may tried by any other law for the time being in force for the treatment training or rehabilitation of youthful offenders as held in case of Nanna v/s State of Rajasthan-1989, under sec. 361. 11. Court not to alter Judgment:- According to section 362 of the code that any other law for the time being in force no court when it has signed its judgment or final order disposing of a case shall alter or review the same except to correct a clerical or arithmetical error, case of Naresh & others v/s State of U.P.-1981.
12. Copy of the judgment to be given to the accused and other persons: - Section 363 says that a copy of the judgment shall immediately after the pronouncement of the judgment be given to him free of cost, as held in case of Ladli Parsad Zutsi-1932. 13. Judgment when to be translated: - Sec.364 provides that the original judgment shall be filed with the record of proceedings and where the original is recorded in different language from that of court and so requires it may be translated in to the language of the Court. 14. Court of Session to send copy of finding and sentence to District Magistrate: - In the case tried by the court of session or a CJM the court or such magistrate as the case may be shall forward a copy of its or his finding and sentence if any to the District Magistrate as said in sec. 365 of the code. 14 Submission of death sentences for confirmation:-Sec.366When a Court of Session passes a sentence of death the proceedings shall be submitted to H/C, it cannot be executed unless it is confirmed by H/C. Sec.371 procedure laid down that the Proper officer without delay after the order of confirmation or other order has been made by H/C send a copy of the order under seal of H/C duly attested to S.Court 16 Examine the law relating to appeal in criminal case. Make a difference between Appeal & Revision in criminal cases. INTRODUCTION:-Appeal is an important remedy for person’s dissatisfied from judgment finding and orders of the trial court. Under section 372 of the Cr.P.C., it is provided that relation to appeal it is necessary to know that no appeal shall lie from any judgment or order of a criminal court except as provided by this code or any other law for time being in force, caseGarikapati v/s Subhash coudhari-1957. However the provisions regarding making an appeal are the following:1. Appeal from orders requiring security or refusal to accept or rejecting surety for keeping peace or good behavior: - Any person who has been ordered to give security for keeping the peace or for good behavior or who is aggrieved by any order refusing to accept or rejecting a surety on the basis ofsec.373. 2. Appeals from Convictions: - According to section 374 of code that any person convicted on a trial by a H/C in its extraordinary original criminal jurisdiction may appeal to Supreme Court similar any person convicted by session judge or on a trial held by any other court which sentence or imprisonment is more than 7 years may appeal to High court. Case Panchi v/s State of U.P.-1998, In C.Gopinathan v/s State of Kerala-1991 3. Appeal by State against sentence: - Under sec.377, the state Government may in any case of conviction on a trial held by any court other than a H/C direct the Public Prosecutor to present an
appeal against the sentence on the ground of its inadequacy to Court of Session if the sentence is passed by the Magistrate or to the H/C if the sentence is passed by any other Court. When an appeal is filed against the sentence on the ground of its inadequacy court shall not enhance the sentence except after giving to the accused a reasonable opportunity of sowing cause against such enhancement. Case ofNadir Khan v/s State-1976. 4. Appeal in case of Acquittal :- In an appeal against acquittal undersec.378 the H/C has full power to review at large the evidence on which the acquittal is based and to reach the conclusion that the order of acquittal should be reversed as held in case of Mohandas v/s State of MP1973, but exercising his power the H/C should give proper weight and consideration to the view of the trial judge as to the credibility of witnesses, presumption of innocence in favour of the accused. And a right of the accused to the benefit of any doubt. It was also held in State of U.P. v/s Gambir Singh-2005 case of appeal against acquittal if on same evidence two views are possible, the one in favour of accused must be preferred. During the hearing of appeal from the order of acquittal it should be taken into consideration that there is no miscarriage of justice, case Allahrakha K. Mansuri v/s State of Gujrat-2002. The order of acquittal cannot be dismissed merely on the ground that a second approach could have been applied in the case and it means that the accused could have been convicted on 5.
considering another view a case of Chandra Singh v/s State of Gujrat-2002. Appeal against conviction by H/C in certain cases :-Where an H/C has on appeal reversed an order of manifest on record of acquittal of an accused person and convicted him and sentenced him to death or to imprisonment for life or to imprisonment for a term of ten years or more, he
6.
may appeal to the Supreme Court under sec. 379. Special right of appeal in certain cases:- In Shingara Singh v/s State of Haryana2004, when more persons than one are convicted in one trial and an appealable judgment or
7.
order has been passed in respect of any of such persons, under section 380. Appeal to court of session how heard:- Appeal to the court of session shall be heard by the
sessions judges or by ASJ u/s 381. 8. Petition of appeal:-Every appeal shall be made in the form of a petition in writing presented by the appellant or his pleader u/s 382. DIFFERENCE BETWEEN APPEAL & REVISION 1.
APPEAL Any person convicted on a trail held by H/C may appeal to S/C.
1.
REVISION The correctness, legality or proprietary of any
finding sentence or order of any lower court. 2. The regularity of any proceedings of such court.
2.
Any person convicted on a trial by a Session judge or on a trial held by any other court for
3. The powers of revision cannot be used through more than 7 years may appeal to the High Court interlocutory orders. 3. Any person convicted on a trial held by 4. During the hearing of Revision argue of the metropolitan Magistrate or Magistrate Ist. Class person applying for revision should be may appeal to Session Judge. considered seriously even though it they are too 4. If the appellant is in jail he present his petition brief. Case Pal George v/s state-02. of appeal through Officer I/c jail. 5. Pending an appeal by accused person the appellate court shall suspend the execution of order of sentence & if he is in confinement he be released on bail.
17: What is bail? State the provisions of Bail under Cr.P.C. Can a person get order to be released on Bail without judicial or Police custody? Refer case law. INTRODUCTION:-It is travesty of justice that many poor accused i.e. ‘little Indians’ are forced into long cellular servitude for little offences because the bail procedure is beyond their meagre means and trails don’t commence and even if they do, they never conclude. Our bail system suffers from a property oriented approach which means to proceed on the erroneous assumption that risk of monetary loss is the only deterrent against fleeing from justice. What is bail?-When any person who is accused of any offence other than non-bailable offence, he shall be released on bail under sec.436 of the code provided he has been arrested or detained without warrant by an Officer I/C of Police station or he appears or is brought before a court and he must be prepared any time whine in the custody or at any stage of the proceeding before a court. However the following are the provisions of getting Bail under Cr.P.C. Offences can be classified into two classes on the basis of bail:-
i)
Bailable offences: - Bailable offences are of general nature and in these offences it is right
ii)
of accused to be released on bail.Sec.436 of Cr.P.C. pertains to Bailable offences. ii) Non-Bailable offences: - These offences are of severe nature and bail cannot be claimed as right in them. In such cases bail depends upon the discretion of the court. Sec. 437 relates to Non-bailable offences. 1. Grant of Bail in Non-bailable offences: - Sec. 437 provides that when any person accused of or suspected of commission of any non bailable offence is arrested or detained without warrant by an Officer I/C 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. Thussection 437 empowered a Magistrate to take bail in non bailable offences. The provision of this makes it clear that bail in non bailable
i)
offences depends upon the discretion of the court. When bail shall be granted: - sec.437 (1) lays down two situation in which bail shall not be granted by magistrate:1) reasonable grounds for believing that he has been guilty of offence punishable with death or imprisonment for life. 2. When offence is cognizable and he had been convicted with death, imprisonment for life or imprisonment for 7 years or more or he has been
ii)
convicted on two or more occasion. There are exceptions to receive bail:- this section also provided with few exceptions where magistrate can receive bail in following cases:a) Where the accused is under the age of 16 years. b) If she is a woman. c) Sick or infirm Thus in the above cases the bail application can be accepted even though the accused in guilty of offence punishable with death or imprisonment for life or has been convicted earlier. Case Venkataramanappa v/s State of Karnatka-1992. Conditions for Bail:- Under sec. 437(3) that where a person accused or suspected of the commission of an offence punishable with imprisonment which may extend to 7 years or more or for an offence, abetment of or conspiracy or attempt to commit any such offence is released on bail, the court may impose any condition which the court considers necessary, as in the case of
·
Gurbaksh Singh v/s State of Punjab-1980:In order to ensure that such person shall attend in accordance with the conditions of the bond
·
executed under this chapter. That such person shall not commit an offence similar to an offence of which he is accused or
·
suspected. That otherwise in the interest of Justice. Can a person get order to be released on Bail without judicial or Police custody:-
Where any person has reason to believe that he may be arrested on accusation of having committed a non-bailable offence he may apply to the High Court or the Court of Session for a direction under sec. 438 that in the event of such arrest he shall be released on bail. *It was held in Adri Dharam dass v/s State of W.B-2005; it was held that it is exercised in case of an anticipated accusation of non-bailable offence. The object of this section is that the moment a person is arrested if he has already obtained an order from High court of Court of Session he shall be released immediately on bail without being sent to jail. *It was also held in Vaman Narain Ghiya v/s State of Rajasthan-2009, direction u/s 438 that the applicant shall be released on bail whenever arrested for whichever offence whatsoever such a blanket order should not be passed. It was further observed that direction under sec.438 is to be issued at pre-arrest stage, with some conditions:i) That the person shall make himself available for interrogation by a Police officer as and when required. ii) The person shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case. iii) That the person shall not leave India without the previous permission of the court. iv) If such person is thereafter arrested without warrant by Police on such accusation and is prepared either at the time of arrest or at any time while in the custody of police station to give bail, he shall be released on bail.
18:-Discuss the provisions relating to revision to criminal cases. Can High Court exercising revision powers? INTRODUCTION: - Revision is also a judicial remedy which has been mentioned in sec.397 of the code. The main object of revision is to examine the purity, validity, relevancy or regulation or any order, finding or sentence. This section gives powers to High Court and the Session Judge to call for and examine the record of any proceeding before any inferior Criminal Court within its or his local jurisdiction. The followings are the provisions regarding when the revision shall be done:1. Calling for records to exercise powers of revision: - The High court or the Session Judge may call for and examine the record of any proceeding before any inferior criminal court of his jurisdiction for the purpose of satisfying as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, u/s 397 of the code. Case Johar & Others v/s
Mangal Prasad and another-2008, it was held that trial court is not found to be passed without considering relevant evidence or by considering irrelevant evidence. In a case of Badri Lal v/s State of M.P.-1989: The powers under this section are undoubtedly wide and the Session Judge can take up the matter suo motu, it must be seen that the criminal law is not used as an instrument of private vengeance. Kuldeep Singh v/s State of M.P.-1989: It was held that the order framing charge could not be lightly interfered with in revision. In vinod kumar v/s Mohawati-1990: That the court of Session has similar powers as of High Court in revision and as the High Court is authorized to take additional evidence in revision. In Gram Sabha Lakhanpur v/s Ram Dev-1993:- It was held that the complainant may or may not have a legal right of being heard but the rule of prudence and natural justice requires that the aggrieved party must be afforded an opportunity of hearing. In a case of Mahavir singh v/s Emperor-1944: The regularity of any proceedings of such inferior court where the finding sentence or order is illegal or improper and where the proceedings are irregular. Case of T.B.Hariparsad v/s State-1977, it was held that the powers of revision cannot be used through interlocutory orders passed in any appeal inquiry, trial or other proceedings under sec. 397(2). In a case of Paul George v/s State-2002, it was held that during the hearing of Revision argue the person applying for revision should be considered seriously even though if they are too brief. 2. Order of Inquiry:- Sec. 398 of the code provides powers of issuing order of inquiry to High Court or court of Session. Accordingly on examining any record under sec.397 or otherwise the High Court or Session Judge may direct CJM by himself or by any of Magistrate subordinate to him to make inquiry of any complaint which has been dismissed under sec.203 or the case of any person accused of an offence who has been discharged. 3. Powers of Revision of Court of Session: - Sec.399 provides powers of revision to court of session in the case of any proceeding the record of which has been called for by himself. The session judge may exercise all or any of the powers which may he exercised by the High Court. Where an application for revision is made by or on behalf of any person before the session judge the decision of the session judge shall be final and no further proceedings by way of revision a the instance of such person shall be entertained by the High Court or any other court. These powers of revision have been provided to the Addl. Session Judge under sec.400. 4. Powers of Revision of High Court: - Sec.401 of the code provides powers of revision to High Court that in case of any proceeding the record of which has been called by itself or which otherwise comes to its knowledge, the High Court may exercise any of the powers conferred on a
court of appeal by sec. 386, 389, 390 and 391 or on court of session by sec. 307. Thus during revision High Court shall be able to exercise all powers which an appellate court can do. In case of Vimal Singh v/s Khuman Singh-1998: Supreme Court restricted the area of revision generally the order of acquittal is not interfered. Powers of revision can be exercised in following situations:-i)Where severe illegality has occurred by trial court. ii) Where the order of trial court has failed to provide justice. iii) Where the trial court has tried a case which fall beyond its jurisdiction. iv) Where the trial court has stopped taking evidence unlawfully. Here it is pertinent to mention that any party has applied for revision believing that no appeal lies there but an appeal lies there then the court shall consider such application for appeal in the interest of justice u/s 401(2). The order of acquittal cannot be reversed into an order of conviction in revision as held in case of Singher Singh v/s State of Haryana-2004, u/s 401(3). 5. Power of High Court to withdraw or transfer revision cases:-whenever one or more persons convicted at the same trial makes an application to High Court for revision. The High Court shall direct that the applications for revision made to it be transferred to the Session Judge who will deal with the same as if it were an application made before him, under sec. 402 of this code. 6.Copy of the order to be send to lower court:- Sec. 405 of the code provides that where any case is revised by High Court or court of session, it or he shall in the manner provided by sec.388, certify its decision or order to the court of by which the finding, sentence or order revised was recorded or passed and the court to which decision or order is so certified shall thereupon make such orders as are confirmable to the decision so certified and if necessary record shall be amended in accordance there with.
19.Discuss the provisions of Judgment. Can court alter its own Judgment? INTRODUCTION: - It must contain the judgment comes out from every trial in any criminal court of its original jurisdiction which is to be pronounced in open court by the presiding officer immediately after the termination of the trial. Judgment can be delivered in whole or the operative part of the judgment and explaining the substance of the judgment in a language which 1.
is understood by the accused. The provisions however are as under:Contents of Judgement:- Section 353 of cr.P.C-1973 provides that the judgement in every trial in any criminal shall be pronounced in the open court by the presiding officer just after the completion of the trail or at some subsequent time which notice shall be given to the parties or
their advocates. It can be delivered as a whole of the judgement or can by reading out the of judgement. If may also be byreading the operative part of the judgement in such language which easily be understood by the accused or his advocate. a)Each and every page of judgment when it is made should be singed, mentioning the date of delivery of the judgment in open court. b) No judgment which is delivered by any criminal court shall be deemed to be invalid by reason only of the absence of any party or his advocate on the day or place notified for the delivery of the judgment. c) As soon as the judgment is pronounced a copy of the same immediately be made available for the perusal of the parties free of cost. d)If the accused is in the custody he shall be brought up to hear the judgment pronounced. And if the accused is not in custody he shall be required by the court to attend to hear the judgement pronounced. e) Where there are more accused than one and one or more of them do not attend the court on date on which the judgement is pronounced. Presiding officer to avoid delay in the disposal of the case pronounce the judgement even their absence. 2.Language & contents of Judgement: - According to sec.354 the judgement should be written in language of court which contains points for determination, the decision thereon and the reasons for the decision. If it be a judgement of acquittal, shall state the offence of which accused is acquittal and direct that he be set at liberty. Sec.354(3) when all the murderers are to be sentenced with death sentence will become a dead law as held in a case ofMuniappan v/s State of Tami Nadu-1981. 3 Order for notifying address of previously convicted offender: - When any person having been convicted by a court in India of an offence punishable which relates to criminal intimidation with imprisonment for a term of three years or upwards is again convicted of any offence punishable Court may order that his residence and any change of such residence after release be notified. Such rules may provide for punishment for the breach thereof, under sec.356. 4.Order to pay compensation: - When a court imposes a sentence of fine or a sentence including sentence of death of which fine forms a part the court may at the time of passing judgement the whole or any part of fine recovered to be applied. In the payment to any person of compensation for any loss or injury caused by the offence when compensation is in the opinion of the court recoverable by such person in a civil court. At the time of awarding compensation in any civil suit relating to the same matter the court shall take into account any sum paid or recovered ass compensation on the provisions laid down in thissec.357, in case of Mangilal v/s
State of MP-2004. In Sube singh v/s State of Haryana-2006, is a fit case to award compensation. 5. Special Reasons to be recorded in certain cases:- As per provisions laid down in sec.361 of cr.P.C.,where in any case the court could have deal with an accused person under sec.360 under the provisions of probation of offenders Act or a young offender under children act or any other law for the time being in force for the treatment, training or rehabilitation of young offenders has not done so. It must be recorded in judgement giving special reasons for having not done so, as held in a case of State of Himachal Predesh v/s Lat Singh-1990. 6. Court not to alter judgement:- Provisions lays in the sec. 362 or by any other law for the time being in force, no court when it has signed the judgement or final order disposing of a case shall alter or review the same except to correct clerical or arithmetical error. In case of Naresh & others v/s State of U.P.-1981. 7. Copy of the Judgement to be given to the accused & other persons:-When the accused is sentenced to imprisonment a copy of the judgement shall immediately after the pronouncement of the judgement be given to him free of cost. In case of Ladli Prasad Zutshi v/s State of Allahbad-1931, it was held that even public has a right to obtain a copy of the judgement of any criminal court. This has been provided in sec. 363 of Cr.P.C.-1973. 8. Judgement when to be translated: - As per instructions u/s 364 it is said that the original judgement shall be filed with the record of the proceedings and where the original is recorded in a language different from that of the court and the accused so requires a translation thereof into the language of the court shall be added to such record. 9. Court of Session to send copy of finding and sentence to District Magistrate:- The cases tried by the court of Session or a CJM the court or such Magistrate shall forward a copy of its or his finding and sentence if any to the District Magistrate within whose local jurisdiction the trial was held as provided in sec. 365 of Cr.P.C.-1973.
20: Analyse the provisions of grant of Anticipatory bail. Can anticipatory bail be allowed in Murder case? If so when? INTRODUCTION: - Anticipatory bail has an important place in the series of Bail. Its main object is to protect the innocent persons from arrest undersec. 438 of the criminal procedure code-1973 lays down the provisions regarding grant of anticipatory bail.
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What is Anticipatory Bail: - In-spite of the fact that the Cr.P.C., has not defined Anticipatory Bail but it means that when a person has a reason to believe that he may be arrested on accusation of having committed a non-bailable offence, he may apply to High Court or to the court of Session that in the event of such arrest he shall be released on bail at that time it is anticipatory bail. It is also called Apprehension Bail on the basis of provisions laid down in sec.
438 of cr.P.C. · Object of the Anticipatory Bail:- The object of Anticipatory bail is to protect a person from arrest. A person against whom a warrant of arrest has been issued shall first be arrested kept in custody for few days and then released on bail, it means where there is no purpose for the arrest he shall not be arrested. · When anticipatory Bail would be Accepted:- Section 438(1) says that, “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 court of Session for a direction under this sec.438(1) and court if thinks it fit, can direct that in event of such arrest he shall be released on bail.” Case of Gurbaksh Singh v/s State of Punjab-1980, he was not granted anticipatory bail merely on fear of arrest. In a similar case of Ashok kumar v/s State of Rajasthan-1980, that anticipatory bail should not accepted until there is a definite fear of arrest and such fact has come before the court. It is pertinent to mention here that reason to believe does not mean mere fear, i.e. mere ‘fear’ is not sufficient cause. Grounds on which belief is based must be capable of being · i.
examined. Who shall accept the Anticipatory Bail:- Sec. 438 (1) that the following authorities may accept the anticipator bail application: High Court ii. Court of Session That any accused of an offence and in custody be released on bail on acceptance of bail
application in the above said courts u/s 439 of Cr.P.C. · Conditions of Grant Anticipatory Bail:-Court can impose reasonable conditions for grant of anticipatory bail. Those conditions have been mentioned in section 438(2). When the High Court or Court of Session make a direction with some conditions in the light of the facts of the particular case as it may think fit for bail:a. That the person shall not leave India without previous permission of the court. b. That person directly or indirectly make an inducement threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any police Officer.
c. That the person shall make himself available for interrogation by a police officer as and when required. d. That any such other condition as may be imposed under sec.437 if the bail is granted under this section. ANTICIPATORY BAIL IN MURDER CASE: - There is no set principle fixed for grant of anticipatory bail. It is basically depends upon the facts and circumstances of every case and the nature of the case. Generally the anticipatory bail is not to be granted in the matters like murder, unnatural death, dourly death. A case if SamunderSingh v/s State of Rajasthan -1987, the court held that the anticipatory bail cannot be accepted in dowry death cases especially where father-in-law and mother-in-law caused unnatural death of the daughter-in-law. Similarly refusing to grant of anticipatory bail in the matters of atrocities to schedule tribe and schedule caste was held to be constitutional in a case of State v/s Ram kishore Batolia1995. Anticipatory bail has also been refused in the matters of FERA, a case ofDukhishyam Venupanni v/s Arun Kumar Bajoria-1998. Even the facts mentioned above the anticipatory bail can be granted in Murder cases on the basis of following circumstances:i)When there is no apprehension about the absconding of the accused. ii) When there is no apprehension of inducing or enticing witnesses by the accused. iii) When there is no apprehension of the accused for moving abroad. iv)Where the offence is not the severe or deadly nature. HEARING OF PROSECUTION The prosecution must be provided an opportunity of hearing while considering the anticipatory bail as held in the case of State of Assam v/s R.K.Krishankumar-1998.
UNIT-V INTRODUCTION:-Offences can be classified into two classes on the basis of bail:
Bailable offences: - Bailable offences are of general nature and in these offences it is right of accused to be released on bail. Sec.436 of Cr.P.C. pertains to Bailable offences. Non-Bailable offences: - These offences are of severe nature and bail cannot be claimed as right in them. In such cases bail depends upon the discretion of the court. Sec. 437 relates to Nonbailable offences, under section 437 and 439 relates to non-bailment offence. Grant of Bail in Non-bailable offences: - Sec. 437 provides that when any person accused of or suspected of commission of any non bailable offence is arrested or detained without warrant by an Officer I/C 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. Thus section 437 empowered a Magistrate to take bail in non bailable offences. The provision of this makes it clear that bail in non bailable offences depends upon the discretion of the court. When bail shall be Granted:- Sec. 437(1) of the code lays down the following situations in i) ii)
which bail shall not be granted by the Magistrate:When the Magistrate believes that there are reasonable grounds of guilty of offence punishable. If person has been previously convicted of an offence punishable on two or more times. CONDIIONS FOR BAIL 1 Sec. 437(3) of the code provides that where a person accused or suspected of the commission of an offence punishable which may extend to seven year or more or of an offence defined in IPC and any such offence the accused is released on bail the court however may impose any condition which the court considers necessary:1. That such person shall attend in accordance with conditions mentioned in the bond executed by him. 2. Such person shall not commit an offence of the similar to an offence of which he is accused or is suspected.
ARREST OF A PERSON Introduction: - Generally, a person is arrested by the order of the magistrate or by a warrant. A police officer cannot arrest a person arbitrarily or without the order of magistrate or without warrant. But this rule has few exceptions to it which means that under certain circumstances a person can be arrested without the order of the magistrate or without warrant. Arrest without warrant:- Sec. 41 of the Criminal Procedure Code 1973 provides that a police officer can arrest a person without the orders or warrant of the magistrate in following situations:
(8)
When any person 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
(9)
exists. Of his having been so concerned. When any person has in his possession without lawful excuse any implement of house-
(10)
breaking. When any person 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
(11)
reference to such things. When any person obstructs a police officer while in the execution of his duty, or who has
(12)
escaped, or attempts to escape from lawful custody. When any person is reasonably suspected of being a deserter from any of the armed forces of the
(13)
union. When any person being a released convict, commits a breach of any rule made under sub-section
(14)
(5) of section 356; When for any persons arrest any requisition, whether written or oral, has been received from another police officer, provided that the requisition specifics the person to be arrested. Thus, in this way a police officer under sec 41(1) can arrest any person without the order or warrant of a magistrate.
CHARGE INTRODUCTION: - The object of the rule embodied in the sec. 218 of Cr. P. C., is to ensure a fair trial and to see that the accused is not bewildered or perplex to confuse by having been asked to defend several unconnected charges or distinct offences lumped together in one charge or in separate charges. We will read the rules relating to joinder of charges described in different part of this section. There is no exception to the rule that there should be separate charge for each offence. The detail study of this section is as under:DEFINITION: - For every distinct offence of which any person is accused there shall be a separate charge and every charge shall be tried separately. 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, Magistrate may try together all or any number of the charges famed 1.
against such person. Effect of Contravention of Sec.218:- The effect of the contravention of the provisions of this sec. has been considered by the Supreme Court in following number of cases:- Sushil Kumar
v/s Joy Shankar-1971: It was held that charges under 408 and 477A of IPC could be tried together. In this case several persons accused on several items of embezzlement were tried jointly. There was no failure of justice in consequence of the joinder of charges had occurred. In V.N. KAMDAR v/s DELHI MUNICIPALITY-1973: It was held, “that the provisions of sec. 218 to 224 would indicate that separate charge and separate trial for such distinct offence is the normal rule and joint trial is an exception when the accused have committed separate offence.” 2. Failure to Explain injuries on the accused:- When the prosecution fails to explain satisfactorily the injuries sustained by the accused there are number of judicial pronouncements on this point. Case State of Gujrat v/s Bai Fatima-1975: It was held that the accused had inflicted the injuries on the members of the prosecution party in exercise of the right of selfdefence. 3. Three offences of the same kind within year may be charged together:-under section 219 of Cr. P. C. when a person is accused of more offences than one of the same kind committed within the space of twelve months from the first to the last of such offences, he may be charged with and tried at one trial for any number of them not exceeding three. Provisions of section are only enabling provisions, it applies where offences are of the same kind but it does not apply where offences are not of the same kind such as criminal breach of trust and falsification of accounts. Rahmat v/s State of U. P.-1980. Trial for than one offence:- If in one series of Acts so connected together as to form the same transaction more offences than one are committed by the same person, he may be charged with and tried at one trial for every such APPELS & ITS LIMITATION PERIOD INTRODUCTION:-Appeal is an important remedy for person’s dissatisfied from judgment finding and orders of the trial court. Under section 372 of the Cr.P.C., it is provided that relation to appeal it is necessary to know that no appeal shall lie from any judgment or order of a criminal court except as provided by this code or any other law for time being in force, caseGarikapati v/s Subhash coudhari-1957. However the provisions regarding making an appeal are the following:1. Appeal from orders requiring security or refusal to accept or rejecting surety for keeping peace or good behavior: - Any person who has been ordered to give security for keeping the peace or for good behavior or who is aggrieved by any order refusing to accept or rejecting a surety on the basis ofsec.373.
2. Appeals from Convictions: - According to section 374 of code that any person convicted on a trial by a H/C in its extraordinary original criminal jurisdiction may appeal to Supreme Court similar any person convicted by session judge or on a trial held by any other court which sentence or imprisonment is more than 7 years may appeal to High court. Case Panchi v/s State of U.P.-1998, In C.Gopinathan v/s State of Kerala-1991 3. Appeal by State against sentence: - Under sec.377, the state Government may in any case of conviction on a trial held by any court other than a H/C direct the Public Prosecutor to present an appeal against the sentence on the ground of its inadequacy to Court of Session if the sentence is passed by the Magistrate or to the H/C if the sentence is passed by any other Court. When an appeal is filed against the sentence on the ground of its inadequacy court shall not enhance the sentence except after giving to the accused a reasonable opportunity of sowing cause against such enhancement. Case ofNadir Khan v/s State-1976. 4. Appeal in case of Acquittal :- In an appeal against acquittal undersec.378 the H/C has full power to review at large the evidence on which the acquittal is based and to reach the conclusion that the order of acquittal should be reversed as held in case of Mohandas v/s State of MP1973, but exercising his power the H/C should give proper weight and consideration to the view of the trial judge as to the credibility of witnesses, presumption of innocence in favour of the accused. And a right of the accused to the benefit of any doubt. It was also held in State of U.P. v/s Gambir Singh-2005 case of appeal against acquittal if on same evidence two views are possible, the one in favour of accused must be preferred. During the hearing of appeal from the order of acquittal it should be taken into consideration that there is no miscarriage of justice, case Allahrakha K. Mansuri v/s State of Gujrat-2002. The order of acquittal cannot be dismissed merely on the ground that a second approach could have been applied in the case and it means that the accused could have been convicted on considering another view a case of Chandra Singh v/s State of Gujrat-2002. COMPLAINT CASE DEFINITION: - Sec. 200 says, that the preliminary procedure which a Magistrate shall follow on receiving a complaint. It is obligatory to examine the complainant and the witnesses and a summary dismissal without them is not legal. 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. If a public servant acting or purporting to act in the discharge of his official duties or
a court has made the complaint or the magistrate makes over the case for inquiry or trial to another Magistrate under sec.192. 1. Procedure by Magistrate not competent to take cognizance of the case: If a complaint made to a Magistrate who is not competent to take cognizance of the offence he shall return it for presentation to the proper court with an endorsement to that effect or where the complaint is not in writing then he will direct the complainant to the proper court as provided in sec.201 of 2.
Cr.P.C.Case of Rajender Singh v/s State of Bihar, 1989. To Postponement of issue of Process:- Sec.202 of the code provided that where it appears to the magistrate that the offence complained is triable exclusively by the court of Sessions or where the complaint has not been made by a court unless the complainant and the witnesses present have been examined on oath under sec.200. If an investigation is made by a person not being a Police officer he shall have for that investigation all the powers conferred by this code on an officer in charge of a police station except the power o arrest without warrant. Sec. has provided to ascertain the following: i) to ascertain the facts constituting the offence. ii) To prevent abuse of process resulting in wastage of time of the court and harassment to the accused. iii) To help the magistrate to judge if there is sufficient ground for calling the investigation and
for proceeding with the case. Case: Balraj Khanna v/s Motiram-1971. 3. Dismissal of Complaint: - A Magistrate may dismiss a complaint if after considering the statement on oath of the complainant and of the witnesses and the result of inquiry or investigation under sec.202. But where there is sufficient ground for preceding the Magistrate cannot dismiss the complaint under sec.203 of the code. If he finds that no offence has been committed, if he distrusts the statement or if he distrusts the complainant may direct for further inquiry. In such cases he may refuse to issue process. Case Sulab Chandra v/s Abdula-1926. These are the provisions under sec.203 of Cr.P.C.
ANTICIPATORY BAIL INTRODUCTION: - Anticipatory bail has an important place in the series of Bail. Its main object is to protect the innocent persons from arrest undersec. 438 of the criminal procedure code-1973 lays down the provisions regarding grant of anticipatory bail. What is Anticipatory Bail: - In-spite of the fact that the Cr.P.C., has not defined Anticipatory Bail but it means that when a person has a reason to believe that he may be arrested on
accusation of having committed a non-bailable offence, he may apply to High Court or to the court of Session that in the event of such arrest he shall be released on bail at that time it is anticipatory bail. It is also called Apprehension Bail on the basis of provisions laid down in sec. 438 of cr.P.C. Object of the Anticipatory Bail:- The object of Anticipatory bail is to protect a person from arrest. A person against whom a warrant of arrest has been issued shall first be arrested kept in custody for few days and then released on bail, it means where there is no purpose for the arrest he shall not be arrested. When anticipatory Bail would be Accepted:- Section 438(1) says that, “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 court of Session for a direction under this sec.438(1) and court if thinks it fit, can direct that in event of such arrest he shall be released on bail.” Case of Gurbaksh Singh v/s State of Punjab-1980, he was not granted anticipatory bail merely on fear of arrest. In a similar case of Ashok kumar v/s State of Rajasthan-1980, that anticipatory bail should not accepted until there is a definite fear of arrest and such fact has come before the court. It is pertinent to mention here that reason to believe does not mean mere fear, i.e. mere ‘fear’ is not sufficient cause. Grounds on which belief is based must be capable of being 1.
examined. Who shall accept the Anticipatory Bail a. Sec. 438 (1) that the following authorities may accept the anticipatory bail application: High Court, Court of Session. That any accused of an offence and in custody be released on bail on acceptance of bail application in the above said courts u/s 439 of Cr.P.C. Conditions of Grant Anticipatory Bail:-Court can impose reasonable conditions for grant of anticipatory bail. Those conditions have been mentioned in section 438(2). When the High Court or Court of Session make a direction with some conditions in the light of the facts of the particular case as it may think fit for bail:a.That the person shall not leave India without previous permission of the court. b)That person directly or indirectly make an inducement threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any police Officer. c. That the person shall make himself available for interrogation by a police officer as and when required. POWERS OF CRIMINAL COURTS
INTRODUCTION: - Chapter III of the code deals with Powers of Courts to take cognizance of the offences. For this purpose the offences are divided into two groups, i) Offences under IPC and ii) offences under any other law. The courts by which these offences are triable are specified below:Courts by which offences are triable: - As per provisions laid down in section 26 the courts by which offences are triable:3. a) Any offence under IPC-45 may be tried by High Court. B) Session Court. c) Any other court by which such offence is shown in the first schedule to be triable. 4. Any offence under any other law, when any Court is mentioned in this behalf in such law, is tried by: i) High Court. ii) Any other court by which such offence is shown in the first schedule. Section 27: Jurisdiction in the case of Juveniles: Any offence not punishable with death or imprisonment for life who at the date when he appears or is brought before court under the age of 16 years may be tried by the court of CJM or any other court which specially empowered. Sentences which High Courts and Session Judges may pass: - As per provision laid down in Sect. 28 of the code that:- (i) High Court may pass any sentence authorized by law. (ii) Session Judge or ADJ may pass any sentence authorized by law but any sentence of death passed by such judges shall be subject to confirmation by the High Court. Sentences which Magistrates may pass:- Sec.29 of Code, The court of CJM may pass any sentence authorized by law except sentence of death or of imprisonment for life or imprisonment for a term exceeding 7 years. The court of Magistrate of First Class may pass a sentence of imprisonment for a term not exceeding three years or of fine not exceeding Rs.10, 000. The court of 2nd Class Magistrate may pass an imprisonment for a term not exceeding One year or of fine not exceeding Rs.5000/- or of both. Sentence of Imprisonment in default of fine:-The court of Magistrate may award such term of imprisonment in default of payment of fine as authorized by law under sec.30 of the code, not exceeding one fourth of the term of imprisonment and also not excess of the powers. SUMMARY TRIALS On the basis of provisions under section 260 of the code, power to try summarily: notwithstanding anything contained in this code, Any CJM, Any metropolitan Magistrate or any Magistrate of the first class specially empowered in this behalf by the High Court, may if thinks fit try a summary way in all or any of the following offences. Summary trial can also be done by the magistrate of second class u/s 261 of the code; the High Court may confer on any magistrate
invested with the powers of a Magistrate of the second class. If any from the above Magistrate’s thinks fit, may try in a summary way for all or any of the following offences:1. Offences not punishable with death imprisonment for life imprisonment for a term exceeding two years. 2. Theft under sec. 379, 380 and 381 of IPC where the value of the property stolen does not exceed two thousand rupees. 3. Receiving of retaining of stolen property under sec.411, IPC, where the value of the property does not exceed two thousand rupees. 4. Assisting in the concealment or disposal of stolen property under sec. 414 of IPC, where the value of such property does not exceed two thousand rupees. 5. Offences under section 454 and 455 of IPC. 6. Insult with intent to provoke a breach of the peace under sec. 504 and with imprisonment for term which may extend to two years or with fine or with both, under sect. 506 of IPC. 7. Abetment of any of the foregoing offences. 8. An attempt to commit any of the foregoing offences when such attempt is an offence. The mode of trial is sought to be altered under this sub-section the trial must from its inception to be conducted in the regular manner, case of State v/s D.N.Patel-1971. The Magistrate under this section as a discretion o try the offences specified in this section in a summarily way. Procedure of summary trials: - Under sec. 262 of the code is related to the procedure for summary trial, shall be the same as in summons case except in so far as it is modified by the provisions. In the case of summary trial the limit of term of sentence of imprisonment is three months. However if the court is considers it necessary that a longer sentence is necessary in the interest of justice in any case the trial should be held as in a warrant case or as a summon case according to the nature of the offence. PLEA BARGAINING Under section 265A of the code, described that the application of the provisions of this section in respect of accused against whom the report has been forwarded by the officer in charge of Police station under sec.173, the offence appears to have been committed by him and the Magistrate has taken cognizance of an offence on complaint other than an offence for which the punishment of death or life imprisonment or imprisonment for a term exceeding seven years and examining complainant and witnesses issued the process as per law. Application for plea bargaining: Sec.265B of the code lays that a person accused of an offence may file application for plea bargaining in the court in which the offence is pending for trial. The application accompanied by an affidavit sworn by the accused stating therein that he has
voluntarily preferred after understanding the nature and extent of punishment provided under the law for the offence the plea bargaining in his case and that he has not previously been convicted by a court in a case which he had been charged with the same offence. FINALITY OF THE JUDGEMENT:- The judgment delivered by the court under section 265G shall be final and no appeal except the special leave petition under article 136 and writ petition underarticle 226 and 227 of the constitution shall lie in any court against such judgment. POWER OF THE COURT IN PLE BARGAINING:- A court shall have for the purposes of discharging its functions under the provisions in section 265H, all he powers vested in respect of bail, trial of offences and other matters relating to the disposal of a case in such court on the basis of above provisions.
