[Link], BB.A., B.A.

, LLB 7th Semester

Code of Criminal Procedure, 1973
Ms. Sandeep Rani,
Asstt. Professor-Laws
CODE OF CRIMINAL PROCEDURE, 1973

Question 1. Write down the powers of Criminal courts under Criminal Procedure Code
1973.
Ans. The section 28-31 widely covers the powers of various courts to pass sentences.
Section 28 – Sentences which can be passed by High Court and Sessions Judge.
Section 29 – SENTENCES WHICH CAN BE PASSED BY MAGISTRATES.
*The following table shows the sentencing powers of the Court as provided under the Code-
COURT MAXIMUM SENTENCE
High Court A High Court may pass any sentence authorized by law.
Sessions Judge or Additional Any sentence authorized by law.A Sentence of Death passed by
Sessions Judge such Court shall be subject to confirmation by the High Court.
It can only pass any sentence for imprisonment for a term not
Assistant Sessions Judge
exceeding 10 years.
It can only pass any sentence for imprisonment for a term not
Chief Judicial Magistrate
exceeding 7 years.
It can only pass any sentence for imprisonment for a term not
Judicial Magistrate Ist Class
exceeding 3 years or fine not exceeding 10,000/-
It can only pass any sentence for imprisonment for a term not
Judicial Magistrate 2nd Class
exceeding 1 years or fine not exceeding 5,000/-
Chief Metropolitan Chief Metropolitan Magistrate shall have sentencing powers of a
Magistrate Chief Judicial Magistrate.
Metropolitan Magistrate shall have sentencing powers of Judicial
Metropolitan Magistrate
Magistrate of 1st Class.

Section 30. Sentence of imprisonment in default of fine: Where a fine is imposed on an

accused, and it is not paid the law provides that he can be imprisoned for a further term. Such
sentence of imprisonment can be ordered in addition to the substantive imprisonment awarded.
This provisions contained under section 30 are only applicable to a Magistrate. It must not
exceed the powers of a Magistrate mentioned u/s. 29.
The imprisonment for such a default should not exceed one fourth of the term of imprisonment
awarded for the substantive offence. A default sentences cannot run concurrently.

Section 31. Sentence in cases of conviction of several offences at one trial: The section
applies only when more than one offence is tried at the same trial. Such a sentence can be
executed in two was, them being:
• Consecutive Sentence: one sentence ordinarily operates at the expiration of another.
• Concurrent Sentence: all the sentences so awarded shall run all together. The lesser
sentence will be merged in the greater sentence.
In case the Court does not direct the sentence to run concurrently, the sentences shall be assumed
to run consecutively. It is at the discretion of the court to award sentence in the above manner.
The Courts must comply with few conditions while exercising this provision. The aggregate
punishment shall not exceed twice the amount of punishment which the Court is competent to
inflict for a single offence; and in no case such person shall be sentenced to imprisonment for
period more than 14 years.

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Ms. Sandeep Rani,
Asstt. Professor-Laws
CODE OF CRIMINAL PROCEDURE, 1973

Question 2. Write down the provisions relating to arrest under Cr. P.C.
Ans. An Arrest is a way of taking a person into custody as they may be suspected of an offense
because a person is comprehended for doing something wrong. Once a person is arrested, further
procedures like interrogation and investigation are done. As a result of an arrest, the person is
detained physically by the concerned authority.
Arrest without a warrant: Section 41 CRPC sanctions certain conditions that must be pleased
for a police officer to arrest without a warrant:
• The person involved in a conspicuous offense or against whom a piece of credible
information, reasonable complaint, or suspicion exists.
• A person who owns any weapon of housebreaking without any legal excuse.
• A person who has been proclaimed as an offender.
• A person who is found in the ownership of the stolen property.
• A person who tries to stop a police officer from performing his duty or attempts to escape
from lawful custody.
• A person who is involved in an offense that is committed outside India.
• A person who has released a convict committing a breach of a rule.
• A person for whom requisition for arrest has been issued.

Section 42: Arrest for denial to give name and residence: Suppose any individual accused of
committing a non-cognizable offense does not provide his name or address or provides a name
and place that the police officer feels is false. In that case, they may be taken into custody.
Moreover, these people cannot be held or detained beyond 24 hours if their actual name and
address cannot be ascertained. In this case, they shall be forwarded to the nearest Magistrate
having jurisdiction.
Arrest Made by Private Person: According to Section 43 of the CRPC, provisions give powers
to a private person without any warrant, when any person –Carries out a non-bailable and
cognizable offence in his presence or The person is a proclaimed offender.
Arrest by Magistrate: Section 44 (1) CRPC states any magistrate, whether Judicial or
executive, has the power to arrest if any person commits an offense in the presence of the
magistrate. In 44(2) CRPC, the magistrate has been given powers to make an arrest or order an
arrest by someone within the local jurisdiction for whose arrest he is arrested at the time and in
the circumstance to issue a warrant.
Section 46: Arrest how made: Section 46 (1) provides for as to how arrest is to be made.
According to the section whether the arrest to be made is with warrant or without warrant, it is
necessary that in making such arrest, the police officer or other person making the arrest actually
touches or confines the body of the person to be arrested unless there be a submission to custody
by word or action. However, an oral declaration of arrest without actual contact or submission to
custody will not amount to arrest. The Code of Criminal Procedure has vested the police with the
following powers for effecting an arrest:

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Ms. Sandeep Rani,
Asstt. Professor-Laws
CODE OF CRIMINAL PROCEDURE, 1973

(1) Use of force by the Police while making Arrest: - The police may use necessary force to
arrest a person if the person to be arrested resists the arrest or attempts to evade the arrest under
Section 46(2) CrPC. However, the power to use necessary force for making an arrest shall not
extend to causing the death of a person who is not accused of an offence punishable with death
or with imprisonment for life under Section 46(3) CrPC. The person arrested is not to be
subjected to more restraint than is necessary to prevent his escape as set out in Section 49 CrPC.
(2) The police should not handcuff Accuse in normal circumstances: - The investigating
police are restrained from handcuffing the arrested persons without the prior permission from the
concerned Magistrate. Time and again the Supreme Court has emphasized the need for
exercising caution while handcuffing a person arrested
(3) The Police power to search a place: - Under Section 47 CrPC the police are empowered to
effect search a place and an occupier of a house is under a legal duty to afford to the police, and
to any person acting under a warrant of arrest, all the facilities to search the house for the
purpose of making arrests. If such facilities are denied or obstructions are put in the search, the
police shall have power to use force for getting entry into the house for search and also for the
purpose of liberating himself in case he is detained in the house. These powers are subject to
reasonable restrictions if the part of the house to be searched is in occupation of any pardanashin
woman. In such instances either she should be called out of the house or the search is to done in
the presence of a woman or a woman police.
4) The police power to pursue Offenders any place in India: - under Section 48 CrPC a police
officer may, for the purpose of arresting without warrant any person whom he is authorized to
arrest, pursue such a person into any place in India. This provision facilitates the police to
conduct and complete investigation of a case in hand promptly and effectively. In case the arrest
is to be made by the investigating police under a warrant, Section 77 CrPC makes it clear that the
warrant may be executed at any place in India. However, when a warrant of arrest is to be
executed outside the local jurisdiction of the court issuing it, a special procedure as prescribed in
Sections 78-81 CrPC will have to be followed.
(5) The police power to obtain assistance: - A police officer can reasonably ask any person to
assist him in the taking of or preventing the escape of any other person whom he (the officer) is
authorized to arrest under Section 37 CrPC. The person asked to assist is under a legal obligation
to give assistance and any intentional failure on his part is punishable under Section 187 IPC.
(6) Power to require Subordinate Officer to arrest: - An officer- in- charge of a police station,
or any police officer holding investigation under Chapter XII of the CrPC, can require any
subordinate officer to arrest without a warrant (other than in his presence) any person who may
lawfully be arrested without a warrant, and shall deliver to the officer so required an order in
writing, specifying the person to be arrested and the offence or other cause for which the arrest is
to be made under Section 55 of CrPC.
(7) Power to re-arrest escapee: - Section 60 CrPC provides for if a person in lawful custody
escapes or is rescued, the person from whose custody he escaped or was rescued may
immediately pursue and arrest him in any place in India. The person making such re-arrest shall

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Ms. Sandeep Rani,
Asstt. Professor-Laws
CODE OF CRIMINAL PROCEDURE, 1973

have the same powers and duties as mentioned above in respect of using force for arrest, and of
search of place etc.

RIGHTS OF ARRESTED PERSON: The Code of Criminal Procedure, the Indian

Constitution, various judgments of the Supreme Court and other International Human Rights
Covenants and Conventions has laid down several standard procedures as to the rights of arrested
person. These rights are enforceable at different phases of arrest of a person and violation of
which would invite serious disciplinary and penal action against the delinquent police officer.

(1) Right to be informed of the grounds for arrest: - In every case of arrest with or without a
warrant the person arresting shall communicate to the arrested person, without delay, the grounds
for his arrest under Section 50 CrPC. This is a precious right of the arrested person and has been
recognized by the Constitution under Article 22(1). Timely information of the grounds of arrest
serves the arrested person in many ways. It gives him an opportunity to remove any mistake,
misapprehension or misunderstanding, if any, in the mind of the arresting authority. It also
enables him to apply for bail, or for a writ of habeas corpus, or to make other expeditious
arrangements for his defence. Under Section 50-A CrPC it obligatory on the part of the police
officer not only to inform the friend or relative of the arrested person about his arrest etc., but
also to make an entry in a register maintained by the police. The Magistrate is also under an
obligation to satisfy himself about the compliance of the law by the police in this regard.
(2) Right to be informed of right to Bail: - Every police officer arresting, without a warrant,
any person other than a person accused of a non-bailable offence, is required to inform the
person arrested that he is entitled to be released on bail and that he may arrange for sureties on
his behalf under Section 50(2) CrPC. Only when he fails to arrange sureties he need not be
released on bail.
(3) Right to be produced before a Magistrate without delay: - In case of every arrest, whether
the arrest has been made with or without a warrant, the person arresting is required, without
unnecessary delay and subject to the provisions regarding bail, to produce the arrested person
before the Magistrate or officer-in-charge of a police station having jurisdiction in the case under
Sections 56 and 76 of CrPC.
(4) Right to consult a Legal Practitioner: - Both the Constitution and the provisions of the
CrPC respectively recognize the right of every arrested person to consult a legal practitioner of
his choice under Article 22(1) and Sec. 303 CrPC. The right begins from the moment of arrest.
The consultation with the lawyer may be in the presence of the police officer but not within his
hearing.
(5) Right of an arrested Indigent Person to free legal aid and to be informed about it: - In
Khatri v. State of Bihar, (1981) 1 SCC 627, the Supreme Court has held that the State is under a
constitutional mandate (implicit in Article 21) to provide free legal aid to an indigent accused
person, and that this constitutional obligation to provide legal aid does not arise only when the

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Ms. Sandeep Rani,
Asstt. Professor-Laws
CODE OF CRIMINAL PROCEDURE, 1973

trial commences but also when the accused is for the first time produced before the Magistrate as
also when he is remanded from time to time.
(6) Right to be examined by a Medical practitioner: - If any arrested person alleges, at the
time when he is produced before a Magistrate or at any time during the period of his detention in
custody, that the examination of his body will afford evidence which will disprove the
commission by him of any offence or which will establish the commission by any other person
of any offence against his body, then the Magistrate, on the request of the arrested person, is
required to direct the examination of his body by a registered medical practitioner. However, the
Magistrate need not give such a direction if he considers that the request for medical examination
has been made by the arrested person for the purpose of vexation or delay or for defeating the
ends of justice under Section 54 CrPC. According to the direction of Supreme Court, the arrested
accused person must be informed by the Magistrate about his right to be medically examined in
terms of Section 54 CrPC.

The Supreme Court of India has stated detailed guidelines needed to be followed by an officer
while arresting a person, and these rules have been laid down in the case of D.K. Basu vs the
State of West Bengal on 18.12.1996. Later, the code was altered, and section 41-B laid down the
procedure that must be mandatorily obeyed while making an arrest. Guidelines prescribed by the
court:
• The arrested person can call or meet with his lawyer.
• He has to present before the magistrate within 48 hours of arrest.
• The arrested person can inform their relatives regarding his arrest.
• The arresting officer must prepare the memo and be arrested by at least one witness.
• He has the right to a medical examination every 48 hours.
• An entry must be mentioned in the diary regarding the arrest.
• Police control rooms should be made in all the districts and state headquarters, from
which information about the person's arrest can be shared with all the communities.
• All the documents, including the arrest memo, must be sent to the magistrate.
• The arresting officer should have a clear identification of his name and designation.
• The time and the place of custody must be notified to the family or friend of the arrested
person.

Question 3. Write down the process to compel appearance of the accused or of witnesses
before a court.
Ans. There are two major processes to compel the appearance of persons before the Criminal
Courts, viz. 1) Summons and (2) Warrant. The other processes are: (3) Proclamation of an
absconder; where a warrant fails to take effect, (4) Attachment and sale of property, if the
absconder is not forthcoming; and (6) Taking of Bond with or without sureties. The various
processes are discussed below:

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Ms. Sandeep Rani,
Asstt. Professor-Laws
CODE OF CRIMINAL PROCEDURE, 1973

1) Summons: [Secs. 61-69]: Summons is a milder form of process issued (i) for enforcing the
appearance of the accused or of witness, and (ii) for production of a document or thing. It is a
document issued from the office of a court of justice calling upon the person to whom it is
directed to attend before a judge or officer of the court. Section 61 of the Code requires that
every summons issued by a court shall be in writing in duplicate signed and sealed by the
presiding officer of such court. It states in clear terms the title of the court, the place at which and
the day or time of the day when the attendance of the person summoned is required and the
place, time and nature of the offence committed.
Section 62 to 69 provide for different modes of effecting the service of summons in various
situations and conditions. The summons shall be served by a police officer or an officer of the
court issuing it or other public servant. [Section 62(1)].
(i) Personal service of Summons: The summons shall, if practicable, be served served
personally on the person, summoned by delivering a duplicate copy of the summons. If so
required by the serving officer, the person on whom the summons is served must sign a receipt of
the other copy. [Section 62(2)].
(ii) Service of summons on corporate bodies/societies: Service of a summons on an
incorporated company may be affected by serving it on the secretary, local manager or other
principal officer of the corporation or by registered post letter addressed to the chief officer of
the corporation in India. (Section 63).
(iii) Service when the person summoned cannot be found: Where the person summoned
cannot be found, the summons may be served by leaving one of the duplicates for him with some
adult member of his family residing with him, and the person with whom the summons is so left
shall sign a receipt therefore on the back of the other duplicate. (Section 64). A servant is not a
member of the family within the meaning of Section 64.
(iv) Procedure when service cannot be effected as before provided: If service in the manner
mentioned above in Sections 62, 63 and 64 cannot be effected, the serving officer shall affix one
of the duplicates of the summons to some conspicuous part of the house or homestead in which
the person summoned ordinarily resides, and thereupon the Court after making such inquiries as
it thinks fit, may either declare that the summons has been duly served or order fresh service in
such manner as it considers proper. This is called substituted service. (Section 65).
(v) Service on Government: The summons is to be sent to the Head of the office in which such
person is employed. The Head has, in turn, to serve it on the person concerned and return it to the
court with the proper signature and endorsements. (Section 66).
(vi) Service of summons outside local limits: If a summons is to be served outside the local
limits of jurisdiction of the court issuing it, it is normally sent in duplicate to the Magistrate
within whose jurisdiction the person summoned resides.(Section 67)
(vii) Service of summons on witness by post: When the person to be summoned is a witness,
the Court may also direct that a copy of the summons to be served by ‘registered post’ in
addition to, or simultaneously with, the issue of summons in a usual way. [Section 69]. This is a
new provision and is intended to cut out the delay in service of summons on witnesses. Under the

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CODE OF CRIMINAL PROCEDURE, 1973

old Code, the service of summons by registered/ordinary post was not considered as a regular
service. Under Section 69 the summons by post is to be sent at the place where he ordinarily
resides or carries on business or personally works for gain. When an acknowledgment purporting
to be signed by the witness or an endorsement purporting to be made by a postal employee that
the witness refused to take delivery of the summons has been received, the Court issuing the
summons may declare that the summons has been duly served. (Section 69).

Proof of service in Particular Cases: Section 68 lays down that when a summons issued by a
court is served outside its local jurisdiction, and in any case where the officer who has served a
summons is not present at the hearing of the case, an affidavit made before the Magistrate to the
effect that the summons was properly served is admissible in evidence, and all statements made
in such an affidavit are presumed to be correct unless and until the contrary is proved. Likewise a
duplicate of the summons endorsed (in the manner provided by Sec. 62/64) by the concerned
person shall be admissible in evidence. Further, under Section 69, an acknowledgment
/endorsement is proof of the fact of due service of summons.
(II) Warrant of Arrest [Secs. 70 to 81]: The second method of securing attendance of a person
is by means of a warrant of arrest. The warrant is an order addressed to a certain person directing
him to arrest the accused and to produce him before the court. It is executed by a Magistrate on
good and legal ground only. Section 70 of the Code gives the essentials of a warrant of arrest. It
lays down that every warrant of arrest issued by a court shall be in writing, signed by the
presiding officer of such court, and shall bear the seal of the court. The requisites of a valid
warrant are:
(i) It must be in writing.
(ii) It must be signed by the presiding officer.
(iii) It must bear the name and designation of police officer or other person who is to execute it.
(iv) It must give full particulars of the person to be arrested.
(v) It must clearly specify the offences.
(vi) It must be scaled.
Every warrant shall remain in force until it is cancelled by the court which issued it or until it is
executed. A warrant of arrest does not become invalid on the expiry of the date fixed for return
of the warrant.

WARRANTS ARE OF TWO KINDS: Bailable and Non-Bailable.

Bailable Warrant: Section 71 deals with bailable warrant and lays down that a warrant may
contain a direction of the court that if the person to be arrested executes a bond with sufficient
sureties for his attendance before the court at a specified time, the serving officer shall take such
security and release him from custody. Such a bailable warrant shall also state the number of
sureties, the amount of the bond and the time at which the arrested person is to attend the court.
Warrant to whom directed: A warrant of arrest shall ordinarily be directed to one or more
police officers, but the court issuing such a warrant may, if its immediate execution is necessary

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and no police officer is immediately available, direct it to any other person or persons and such
person or persons shall execute the same. (Section 72).
The Chief Judicial Magistrate or a Magistrate of the first class may direct a warrant to any person
within his local jurisdiction for the arrest of any escaped convict, offender or person accused of a
non-bailable offence, or a proclaimed offender evading arrest. (Section 73)
Mode of Execution of Warrant of Arrest: According to Section 74, a police officer is
competent to execute a warrant of arrest under an endorsement from other police officer (to
whom the warrant is initially directed). Where there is no such endorsement, the arrest is not a
legal arrest, The police officer or any other person executing a warrant has to notify the
substance thereof to the person to be arrested, and if so required, to show him the warrant
(Section 75).
Section 76 lays down that the person executing a warrant must (subject to the provisions of
Section 71 to security) without unnecessary delay bring the person arrested before the court
before which he is required by law to produce such person: provided that such delay shall not in
any case exceed 24 hours exclusive of the time necessary for the journey from the place of arrest
to the Magistrate’s court.
A warrant of arrest may be executed at any place in India. (Section 77).
Section 78-81 provide for the execution of warrants outside the local jurisdiction of the court
issuing the same. Section 78 lays down that such court may forward a warrant by post or
otherwise to any Executive Magistrate or District Superintendent of Police or the Commissioner
of Police within whose jurisdiction it is to be executed.
Section 79 lays down that when a warrant directed to a police officer is to be executed beyond
the local jurisdiction of the court issuing the same, he shall first take it for endorsement to an
Executive Magistrate/police officer in charge of a police station in the execution area, and then
execute the same. He may dispense with such an endorsement only in cases of immediate
necessity.
Section 80 lays down that when a warrant directed to a police officer is to be executed outside
the district in which it has been issued, the arrested person must be taken before a Magistrate or
DSP or a Commissioner of Police, unless the court which has issued the warrant is within 30 km
of the place of arrest or is nearer than the Magistrate. D.S.P./C.P.
Section 81 lays down that once the arrested person is produced before the Magistrate, the
Magistrate shall grant a bail to that person who is arrested before a bailable offence provided that
the person is ready to provide the security. If the person is arrested for a non-bailable offence,
then the Magistrate may grant the bail based on the documents of the case.

[III] Proclamation and Attachment [Secs. 82-86]: Proclamation and attachment of property
are the two remedies available to the court against a person (accused offender, surety or a
witness) in case a warrant of arrest remains unexecuted.
Section 82 lays down that where a court has reasons to believe that any person against whom a
warrant has been issued by it has absconded or is concealing himself so that such warrant cannot

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be executed, such court may publish a written proclamation requiring him to appear at a
specified place and time not less than thirty days from the date of publishing such proclamation.
The proclamation shall be published:
(i) by publicly reading in some conspicuous place of the town or village in which such person
ordinarily resides,
(ii) by affixing it to some conspicuous part of the house or homestead in which such person
ordinarily resides or to some conspicuous place of such town or village; and
(iii) by affixing a copy thereof to some conspicuous part of the court-house. The court may also,
if it thinks fit, direct a copy of the proclamation to be published in daily newspaper circulating in
the place in which such person ordinarily resides. (Section 82).
Before the issue of a proclamation the Magistrate should be satisfied that the accused was
absconding or concealing himself for the purpose of avoiding the service of a warrant. The
proclamation also should direct appearance of the person concerned within thirty days, and if the
date fixed for the appearance is less than thirty days, it is illegal. The court issuing a
proclamation may for reasons to be recorded in writing at any time order the attachment of any
property, movable or immovable, or both, belonging to the proclaimed person. There may even
be a simultaneous order of attachment along with the order of proclamation.
Section 82(4) was inserted by the 2005 Amendment lays down that failure to appear after a
proclamation entitles a court to pronounce the person a "Proclaimed Offender" and make a
declaration to that effect. Importantly though, 82(4) is limited to proclamations in respect of
persons accused of offences punishable under Sections 302, 304, 364, 382, 392, 393, 394, 395,
396, 397, 398, 399, 400, 402, 436, 449, 459 or 460 of the Indian Penal Code. Section 174-A of
the IPC makes it an offence to not appear following proclamations under Section 82 CrPC. In
174-A IPC a distinction was made: disobeying a Section 82(1) proclamation was punishable with
imprisonment upto 3 years or fine or both, but where a declaration under Section 82(4) was made
a person could be punished with imprisonment upto 7 years with a mandatory fine.

Attachment of Property of Person absconding: Section 83 seeks to penalize such persons who
avoid arrest under a warrant and against whom a proclamation under Section 82 has been issued.
If the court is satisfied that the person in relation to whom the proclamation is issued—
(a) is about to dispose of the whole or any part of his property or is about to remove the whole or
any part of his property from the local jurisdiction of the court. Since the object of attachment is
to enforce the appearance of the absconder, the attachment usually accompanies the
proclamation. (Section 83).
Modes of Attachment: If the property ordered to be attached is a debt or other movable
property, the attachment may be made—(i) by seizure, or (ii) by the appointment of a receiver; or
(iii) by an order in writing prohibiting the delivery of such property to the proclaimed person or
to anyone on his behalf; or (iv) by all or any two of such methods, as the court thinks fit. If the
property ordered to be attached is immovable, the attachment shall, in the case of land paying
revenue to the State Government, be made through the Collector of the district in which the land

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is situated. If the immovable property is not the land paying revenue to the State Government,
the attachment shall be: (i) by taking possession; or (ii) by the appointment of a receiver; or (iii)
by an order in writing prohibiting the payment of rent or delivery of property to the proclaimed
person or to anyone on his behalf, or by all or any two of such methods, as the court thinks fit. If
the property to be attached consists of livestock or is of a perishable nature, the court may order
its immediate sale. (Section 83).
Claims and objections to attachment: Section 84 deals with rights of persons other than the
proclaimed person in the property attached. Any person other than the proclaimed person may
prefer a claim or make an objection to the attachment of property within six months from the
date of attachment on the ground that the claimant or objector has an interest in the attached
property and that such interest is not liable to attachment. Every such claim or objection shall be
inquired into by the court in which it is preferred and may be allowed or disallowed. If the claim
or objection is disallowed in whole or in part, the claimant or objector may within a period of
one year institute a suit to establish his right in respect of the property in dispute, but subject to
the result of such suit, if any, the order of the court disallowing the claim shall be conclusive.
Release, sale and restoration of attached property [Section 85]: If the proclaimed person
appears within the time specified in the proclamation, the court shall make an order releasing the
property from attachment. If, however, he does not appear within such specified time, the
property under attachment shall be at the disposal of the State Government and shall not be sold
before six months from the date of the attachment and until the disposal of any claim or
objection made by a person other than the proclaimed offender. But if the property is subject to
speedy and natural decay or if the court considers that the sale would be for the benefit of the
owner, the court may cause it to be sold whenever it thinks fit. If the proclaimed person appears
within two years from the date of the attachment and satisfies the court that he did not abscond or
conceal himself for the purpose of avoiding execution of the warrant and that he had no notice of
the proclamation, the property or net proceeds of the sale after deducting the cost of the
attachment shall be delivered to him. (Section 85).

Question 4. Under what circumstances and by whom maintenance may be claimed under
the provisions of CrPC.
Ans. Sections 125-128 (Chapter IX) provide for speedy, effective and inexpensive remedy
against persons who neglect or refuse to maintain their ‘dependent’ wives, children and parents.
Section 125 of CrPC deals with “Order of maintenance of wives, children and parents”. In this
Section, it is given the name of parties who are entitled to get maintenance, essential ingredients
to claim and get maintenance and order of the firstclass magistrate.
(I) Persons Entitled to claim Maintenance [Section 125(1)]: The following persons are entitled to
claim maintenance under Sec. 125 (1):
(a) Wife: The wife (minor or major), who is unable to maintain herself, is entitled to claim
maintenance. [Section 125(1)(a)] Explanation (b) to Section 125(1) defined ‘wife’ so as to
include an unmarried divorced wife. In the case of Chanmuniya v. Virendra Kumar Singh

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Code of Criminal Procedure, 1973
Ms. Sandeep Rani,
Asstt. Professor-Laws
CODE OF CRIMINAL PROCEDURE, 1973

Kushwaha (2011)1SCC141 Supreme Court has defined ‘Wife’ and it includes even those cases
where a man and woman have been living together as husband and wife for a reasonably long
period of time. Strict proof of marriage should not be a precondition of maintenance under
Section 125 of the CrPC. In the case of Yamunabhai v. Anantrao (1988) 1SCC 530 the Supreme
Court held that Wife means only a legitimate/legally wedded wife and therefore a marriage
proved illegal cannot give any right to get maintenance.

A wife can claim and get maintenance from her husband in the following conditions:
• She is divorced by her husband, or
• Obtained divorce from her husband, and
• She has not remarried, and
• She is not able to maintain herself.
A wife cannot claim and get maintenance from her husband in the following conditions:
• Wife living in adultery, or
• Refuses to live with husband without any valid reasons, or
• Living separately by mutual consent.
Muslim wife can also claim maintenance under CrPC though they have a separate
Act (Muslim Women Protection of rights on Marriage Act) for them.
(II) Child: A minor child, if unable to maintain itself, is entitled to claim
maintenance; such a child may be legitimate or illegitimate; married or unmarried [Section 125
(1)(b)] ‘Minor’ means a person who, under the provisions of the Indian Majority Act 1875 has
not attained the age of majority i.e. 18 years. Minor Son (Legitimate or Illegitimate) is entitled to
get maintenance under Section 125 of [Link]. If Minor Daughter (Legitimate or Illegitimate) is
unmarried, then she is entitled to get maintenance from her father and if she is married, then she
is also entitled to get maintenance from his father but the magistrate has to be satisfied that her
husband has not essential and sufficient means for the maintenance of his minor wife i.e. entitled
to maintenance up to the date of majority. If the husband of a minor daughter does not have
sufficient means to maintain her, then it is the duty of her father to give maintenance. In these
circumstances, married minor daughter is entitled to get maintenance from the father.
If any major child (Legitimate or Illegitimate) is abnormal (mentally or physically unfit), then
the father of that child has to maintain him and he can claim maintenance on this ground of
abnormality.
(c) Father or Mother: A Father or mother, unable to maintain himself or herself, is entitled to
claim maintenance from his or her son. [Section 125(1)(d)]. In Vijaya Manohar Arbat v.
Kashirao, AIR 1989 SC 1100 the Supreme Court has held that the word ‘his’ in clause (d)
includes both male and female children. The court pointed out that apart from any law, the Indian
society casts a duty on the children to maintain the parents and this social obligation equally
applied to a daughter.

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Code of Criminal Procedure, 1973
Ms. Sandeep Rani,
Asstt. Professor-Laws
CODE OF CRIMINAL PROCEDURE, 1973

Earning wife entitled to maintenance from her husband u/s 125 CrPC: Where the husband had
placed material to show that the wife was earning some income; it has been held by the Hon’ble
Supreme Court that it is not sufficient to rule out the application of Sec. 125 CrPC. It has to be
established that with the amount she earned, the wife was able to maintain herself. Whether the
deserted wife was unable to maintain herself, has to be decided on the basis of the material
placed on record. Where the personal income of the wife is insufficient, she can claim
maintenance u/s 125 CrPC. The test is whether the wife is in a position to maintain her in the
way she was used to in the place of her husband. The factual conclusions of the court that the
wife is unable to maintain herself cannot be interfered with in the absence of perversity. See:
Chaturbhuj Vs. Sita Bai, AIR 2008 SC 530

Essential conditions for granting maintenance:

There are some essential conditions which should be fulfilled for claiming and granting
maintenance:
1. Sufficient means to maintain the person: If any person has sufficient means for
maintenance, then it is his duty to maintain his wives, children and parents. If sufficient means
are not available, then it will be a perfect and valid defense for people who are legally bound for
maintenance of wife, children and parents.
2. Neglect or refusal to maintain: The person from whom the maintenance is claimed must
have neglected or refused to maintain the wife, child, etc. The term ‘neglect’ is used to signify a
mere failure on the part of the person bound to maintain his wife etc. The neglect is used in wider
sense so as to include disregard of duty whether wilful or intentional.
3. Claimant must be unable to maintain Himself/herself: It is a very important condition for
granting maintenance that a person who is claiming maintenance must be unable to maintain
himself/herself.
4. Quantum of maintenance depends on the standard of living: Quantum of maintenance
means the amount of maintenance. Quantum of maintenance depends on the standard of living.
For example- If any issues raised in a rich family, then demand for maintenance will be more as
compared to poor family according to their standard of living in a prior life.

Question 5. What is First Information Report? What is its evidentiary value?

Ans. Meaning: First Information Report (FIR) is a written document prepared by the police
when they receive information about the commission of a cognizable offence. It is a report of
information that reaches the police first in point of time and that is why it is called the First
Information Report, It is generally a complaint lodged with the police by the victim of a
cognizable offence or by someone on his/her behalf. Anyone can report the commission of a
cognizable offence either orally or in writing. The term FIR is not defined in the Indian Penal
Code (IPC), Code of Criminal Procedure (CrPC), 1973, or in any other law. However, in police
regulations or rules, information recorded under Section 154 CrPC is known as First Information
Report (FIR).

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Code of Criminal Procedure, 1973
Ms. Sandeep Rani,
Asstt. Professor-Laws
CODE OF CRIMINAL PROCEDURE, 1973

Who can file FIR: FIR can be filed by the following persons:
1) By an aggrieved person or somebody on his behalf.
2) Any person who is aware of the offence by being either:
(a) An eye witness and/or
(b) hearsay account.
3) By the accused himself.
4) By the SHO on his own knowledge or information even when a cognizable offence is
committed in view of an officer in charge he can register a case himself however he is not bound
to take down in writing any information and even if the information is only by a medical
certificate upon arrival of the injured, then the (SHO) should enter it in daily diary and go to
hospital for recording detailed statement of injure

There are three important elements of an FIR:

• The information must relate to the commission of a cognizable offence,
• It should be given in writing or orally to the head of the police station,
• It must be written down and signed by the informant, and its key points should be
recorded in a daily diary.

Zero FIR: When a police station receives a complaint regarding an alleged offence that has been
committed in the jurisdiction of another police station, it registers an FIR, and then transfers it to
the concerned police station for further investigation. This is called a Zero FIR. No regular FIR
number is given. After receiving the Zero FIR, the concerned police station registers a fresh FIR
and starts the investigation.
Section 154 deals with what is commonly called as a First Information Report i.e. the first
information of a cognizable crime to the police. A ‘First Information Report’ means the
information, by whomsoever given, to the officer in-charge of a police station in relation to the
commission of a cognizable offence and which is first in point of time and on the strength of
which the investigation into that offence is commenced. Any person aware of the commission of
any cognizable offence may give information to the police and may thereby set the criminal law
into motion. The information so received shall be recorded in such a form and manner as
provided in Sec. 154 CrPC. If the information given by the woman against whom an offence u/s
326A, 326B, 354, 354A-D, 376, 376A-E and 509 of Indian Penal Code is alleged then such
information shall be recorded by a women police officer.

What if the police refuse to register an FIR?

Under Section 154(3) CrPC, if any person is aggrieved by the refusal on the part of the officer in
charge of a police station to register an FIR, she can send the complaint to the Superintendent of
Police/DCP concerned. Who, if satisfied that such information discloses the commission of a

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Code of Criminal Procedure, 1973
Ms. Sandeep Rani,
Asstt. Professor-Laws
CODE OF CRIMINAL PROCEDURE, 1973

cognizable offence, will either investigate the case, or direct an investigation by a subordinate
police officer. If no FIR is registered, the aggrieved persons can file a complaint under Section
156(3) CrPC before a concerned court which, if satisfied that a cognizable offence is made out
from the complaint, will direct the police to register an FIR and conduct an investigation.

In Lalita Kumari v. Govt. of U.P. (2014) 2 SCC 1 the Supreme Court held that it is mandatory
under section 154 of the Code to get a FIR registered, if the information discloses commission of
a cognizable offence

Procedure for filing FIR: Section 154 of the Code of Criminal Procedure, 1973 lays down the
procedure for lodging an FIR-
1) When the information about the commission of a cognizable offence is given orally, the police
must write it down
2) A person giving the information or making a complaint, can demand that the information
recorded by the police to be read over to him/her.
3) One should sign the report only after verifying that the information recorded by the police is
as per the details given by you.
4) Once the information has been recorded by the police, it must be signed by the person giving
the information. It is to kept in mind that people who are unable to read or write are expected to
put their left thumb impression on the document after being satisfied that it is a correct record.
5) A person filing a FIR has the right of getting a copy of FIR free of cost.

Evidentiary Value of FIR: FIR not being a substantive piece of evidence can be used in the
following ways:
1. Used for Corroboration purposes.
2. For contradicting purposes the evidence of person giving the information is important.
3. As an admission against the informer.
4. To refresh former’s memory.
5. To impeaching the credit of an informer.
6. To prove the informer’s conduct.
7. In order to establish identity of accused, witnesses & for fixing spot time as relevant facts.

Question 6. Write down the provisions relating to remand under CrPC.

Ans. Meaning of the remand:- Meaning of the Remand is “to send back”. It means when a
person an accused arrested by the police officer then the police officer can’t keep the accused in
its custody for more than 24 hours(sec. 57 CrPC), he has to present the accused before the
Magistrate after the completion of such period, for more detention in the custody. Then the
magistrate will order for more detention of the accused in the custody, it is called remand. It is
also known as “pre-trial detention”. Sections 56, 57, 167, and 309 of the code deal with the

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Code of Criminal Procedure, 1973
Ms. Sandeep Rani,
Asstt. Professor-Laws
CODE OF CRIMINAL PROCEDURE, 1973

procedure to be adopted in relation to grant of remand (judicial remand as well as police

remand).
Type of remand:-The remands are of two types;
1. Judicial Remand or Judicial Custody:-In judicial custody, the accused is sent to the local jail or
some other establishment under the watchful eyes of the judiciary. In simple language, it means
the custody of the accused in the hands of the judiciary.
2. Police Remand or Police Custody:- In police custody, the accused is sent to the police station’s
jail. In this police seeks custody of an accused to interrogate him or for recovery of booty etc..
For how long can police detain a person without remand:-

Provisions under Section 167 CrPC:

1. Arrested and kept in police custody: The section starts with the wordings, ‘Whenever any
person is arrested and detained in custody’, this means that the section applies only to the cases
where the police has arrested the accused and have detained him in their custody and not in any
other case. Also, In section 167(2), the words used are "The Magistrate to whom an accused
person is forwarded under this section" and according to sub-section (1) of the section an
accused is forwarded by the police along with the copy of the case diary, this indicates that the
section applies only to such cases where an accused has been forwarded to the court by the
police and not to cases where a person has surrendered before the court.
Who can ask for remand:- It is the only officer in charge of the police station or investigating
officer not below the rank of sub-inspector of Police who is empowered to ask for the remand
under the code.

2. Involved in an ongoing investigation that cannot be completed within 24 hours:

The accused who has been brought before the court must be involved in an ongoing investigation
that cannot be completed within 24 hours and his presence is required by the police for the
investigation. S. 57 provides that where a person has been arrested without warrant, he cannot be
detained in custody for a period exceeding 24 hours without a special order by the magistrate
under S. 167. Therefore, from a conjoint reading of S.57 and S. 167, it can be concluded that for
an application under S. 167, it is required that the accused who is been forwarded to the
magistrate must be involved in an ongoing investigation that cannot be completed within 24
hours.

3. Well founded grounds of accusation:

The words used under S. 167(1) are ‘there are grounds for believing that the accusation or
information is well founded’, therefore it can be said that before an application is made under the
section, there must be well founded grounds for accusation of the person.

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Ms. Sandeep Rani,
Asstt. Professor-Laws
CODE OF CRIMINAL PROCEDURE, 1973

4. Materials must be transmitted: The police officer must transmit the entries in the case diary
while forwarding the accused to the magistrate when the application for remand is made by the
police officer.

5. Forwarding of the accused and his presence when remand order is passed: Sub section 1
provides for forwarding the accused to the nearest judicial magistrate when the application is
made to him. It is the duty of the police officer to forward the accused to the nearest judicial
magistrate if he thinks that the investigation would not be completed within 24 hours.
Forwarding is done to ensure his presence when the remand application is heard and decided by
judicial magistrate. It has been specifically provided under proviso (b) to sub section 2 that no
magistrate shall authorize detention in any custody unless the accused is produced before him in
person for the first time and subsequently every time till he remains in police custody. There is a
relaxation to this rule when further detention order in judicial custody is to be obtained, the
accused can also be produced through the electronic video linkage. In order to facilitate the proof
that the accused was produced before the magistrate as per S. 167, the magistrate may obtain his
signature on the order authorizing detention. The same can also be used as a proof if any
question arises as to whether the accused was produced before the magistrate as required by
clause (b) of S. 167(2).[10] This is been provided in Explanation II appended to the sub section.

6. Maximum period of police remand:- The maximum period for which Magistrate can
authorise the detention of accused in police custody and judicial custody under section 167 of
CrPC, 1973 is 15 days. Where the total period of police remand under section 167 of CrPC has
expired the Magistrate has no jurisdiction to further remand the accused to police custody. The
police in such a case might at best ask for the remand under section 309 of the Code, but that
remind can only be to the judicial lock-up. The total time period of detention (including the
time period of initial detention of 15 days) shall not exceed:
a) 90 days where the investigation relates to an offence punishable with death, imprisonment for
life or imprisonment for a term of not less than10 years.
b) 60 days where the investigation relates to any other offence. The proviso further talks about
the right of bail given to the accused after the expiry of the said 60 or 90 days period.

Reasons to be recorded while dealing with remand cases:- Section 167 CrPC contemplates
that the Magistrate should not only direct remand in case he is satisfied that the person arrested
has to be remanded for the purpose of Investigation but should also record his reason while
remanding the accused. The Magistrate is also bound to record the reason in case he does not feel
necessary to order for the detention of the accused for the purpose of investigation and in such a
case he should release that accused.

Remand by Executive Magistrate:(2A) Notwithstanding anything contained in sub- section (1)

or sub- section (2), the officer in charge of the police station or the police officer making the

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Code of Criminal Procedure, 1973
Ms. Sandeep Rani,
Asstt. Professor-Laws
CODE OF CRIMINAL PROCEDURE, 1973

investigation, if he is not below the rank of a sub- inspector, may, where a Judicial Magistrate is
not available, transmit to the nearest Executive Magistrate, on whom the powers of a Judicial
Magistrate or Metropolitan Magistrate have been conferred, a copy of the entry in the diary
hereinafter prescribed relating to the case, and shall, at the same time, forward the accused to
such Executive Magistrate, and thereupon such Executive Magistrate, may, for reasons to be
recorded in writing, authorise the detention of the accused person in such custody as he may
think fit for a term not exceeding seven days in the aggregate; and, on the expiry of the period of
detention so authorised, the accused person shall be released on bail except where an order for
further detention of the accused person has been made by a Magistrate competent to make such
order; and, where an order for such further detention is made, the period during which the
accused person was detained in custody under the orders made by an Executive Magistrate under
this sub- section,

Question 7. Write a detailed note on Final Report prescribed in Sec. 173 of CrPC.
Ans. There are three kinds of reports to be made by police officers at three different stages of
investigation:
1) Sec. 157 requires a preliminary report from the officer-in-charge of a police station to a
Magistrate;
2) Section 168 requires reports from a subordinate police officer to the officer in-charge of the
station and
3) Section 173 requires a final report of the police officer as soon as investigation is completed to
the Magistrate.
Section 173 (1) lays down that every investigation is required to be completed without
unnecessary delay. As soon as it is completed, a report is to be submitted to the Magistrate
empowered to take cognizance of the offence on a police report, in the form prescribed by the
State Government. [Sub-sec. (2)]The police report submitted under this section is called
‘Completion/Final Report’. It is also known as “Challan” and popularly described as “Charge
sheet”. As soon as investigation is completed, the officer-in-charge of a police station shall
forward a report to a magistrate empowered to take cognizance of the offence on a police report
in the form prescribed by the State Government;

DETAILED CONTENTS OF POLICE REPORT: A police report must state the following
particulars:
(i) Name of the parties
(ii) Nature of information
(iii) Names of the persons acquainted with the circumstances of the case.
(iv) Whether any offence appears to have been committed and if so, by whom.
(v) Whether the accused has been arrested.
(vi) Whether the accused has been released on his bond & if so whether with or without
sureties.

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Ms. Sandeep Rani,
Asstt. Professor-Laws
CODE OF CRIMINAL PROCEDURE, 1973

(vii) Whether he has been forwarded in custody under Section 170

(viii) In case of offence under Section 376, 376-A-D of Indian Penal Code, whether
medical report of the woman has been attached. The officer-in-charge of police
station should also communicate the action taken by him to the person by whom the
information was first given.

The officer shall also communicate, in such manner as may be prescribed by the State
Government, the action taken by him, to the person, if any whom the information relating to the
commission of the offence was first given.
Section 173 (1-A) (inserted by Cr. P.C. (Amendment) Act, 2008) provides that investigation in
relation to rape of child may be completed within 2 months from the date on which First
Information Report was recorded.
Section 173(2) provides that police report is forwarded to the Magistrate who is empowered to
take cognizance of the offence, by the officer-in-charge of a police station.

Documents and Statements to be Forwarded with Report [Section 173 (5)-(7)]: When there
is sufficient evidence for sending the accused for trial, the police officer shall send to the
magistrate along with the report (a) all documents or relevant extracts thereof on which the
prosecution proposes to rely other than those already sent to the magistrate during investigation;
and (b) the statements recorded under Section l73 crpc of all persons whom the prosecution
proposes to examine as its witnesses, unless such statement is not relevant to the subject matter
of the proceedings or its disclosure is not essential in the interests of justice and is inexpedient m
the public interest.
Supplementary Report on Further Investigation: Sub-section (8) of Section 173 CrPC
empowers the police to make further investigation. It enacts that even after submission of the
final report under Section 173(2), the police officer-in-charge of the police station may make
further investigation if after submission of the report, he has received further evidence, oral or
documentary. Normally, investigation comes to an end after submission of the report under
Section
173(2), It may, however, happen that after submission of the report under Section 173(2), it
comes to the knowledge of the investigating officer that some material evidence bearing on the
guilt or innocence of the accused had been overlooked. It would be in the interest of justice to
allow further investigation and prepare supplementary report on the basis of further
investigation.

Question 8. Write a detailed account of the broad principles regarding grant of bail in
criminal cases. Can a bail be demanded as a matter of right?
Ans. Bail has not been defined under The Code. Bail denotes the provisional release of an
accused in a criminal matter in which the court is yet to announce a judgment. The expression
'bail' means a security deposited to appear before the court for release. The word ‘bail’ covers

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Code of Criminal Procedure, 1973
Ms. Sandeep Rani,
Asstt. Professor-Laws
CODE OF CRIMINAL PROCEDURE, 1973

release on one’s own bond. The primary objective of arrest is to ensure that the accused in a
criminal case appears before the court for the conveyance of justice. However, if the person’s
presence can be guaranteed for the court trial without putting the person in a jail, it would unfair
and unjust to violate a person’s liberty. Thus, bail can be granted as a conditional liberty to the
accused. The provisions regarding the bail and bonds have been specified from Section 436 to
450 of CrPC. These provisions envisaged in the code gives the brief regarding the provisions of
the bail.
Types Of Bail: There are commonly 3 types of bail which a person can apply depending upon
the stage of the criminal matter:
1. Regular Bail: A regular bail can be granted to a person who has already been arrested and kept
in police custody. A person can file a bail application for regular bail under Section 437 and 439
of the CrPC.
2. Interim Bail: Interim bail is a bail granted for a short period of time. Interim bail is granted to
an accused before the hearing for the grant of regular bail or anticipatory bail.
3. Anticipatory Bail: A person who discerns that he may be arrested by the police for a non-
bailable offence, can file an application for anticipatory bail. It is like an advance bail obtained
under Section 438 of the CrPC. A bail under Section 438 is a bail before arrest and a person
cannot be arrested by the police if the anticipatory bail has been granted by the court.
The Code has classified all offences into ‘Bailable Offences’ and ‘Non-bailable’ offences. The
distinction between them is as follows:
Bailable offence: The bailable offence is the type of offence in which an accused person is
granted bail. This type of offences is generally punishable by the court with less than three years
of imprisonment. In the case of bailable offence the chances of getting bail are much higher.
Under Section 2(a) of the Code, the term bailable offence has been described as the offence
which has been specified in the first schedule of the code or if the offence is considered to be
bailable by the law in force during the time.
Non-bailable offence: The non-bailable offence is the type of offence for which an accused
person is not entitled to get bail. These are the offences which are non-bailable nature and are not
shown as bailable under the first schedule of the code. These offences are grievous in nature
when compared to bailable offences. In the case of non-bailable offences the punishment is three
years or more.
Cases in which bail may be granted: In the case of bailable offence it is mandatory to grant
bail to the arrested person and in case of non-bailable offence it depends upon the discretion of
the court. Section 436 deals with the cases in bailable offence and Section 437 deals with the
cases in which the bail may be taken in case of non-bailable cases.
Cases in which bail to be taken (section 436 of CrPC): Section 436 of the CrPC lays down
that a person accused of any bailable offence under the IPC can be released on bail. Bailable
offences under the IPC include unlawful assembly (Section 144 of CrPC), payment of bribe
during elections, fabrication of false evidence, sale of poisonous food or drink knowingly,
participation in riots, being armed with deadly weapon, furnishing false information, threat of

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Ms. Sandeep Rani,
Asstt. Professor-Laws
CODE OF CRIMINAL PROCEDURE, 1973

injury to public servant, selling adulterated drug, selling obscene book, causing death by
negligence (Section 304A), stalking, criminal defamation, etc. In this case, if a person who is not
guilty of any non-bailable offence and gets arrested without a warrant by the police authority and
is prepared to give bail, then it is the duty of the police authorities to release him. The person
arrested may be released on the bond without submitting any sureties. In any of the above-
mentioned offences, a person can apply for bail. However, there are certain conditions on which
a bail can be granted in case the person is arrested or is likely to be arrested for a bailable
offence:
1. There are sufficient reasons to believe that the accused has not committed the offence.
2. If, as per the court, there is sufficient reason to conduct further enquiry in the matter.
3. The person is not accused of any crime for which is punishable with death, imprisonment for
life or imprisonment up to 10 years.
Conditions for Bail In Non-Bailable Offenses [Section 437]: An accused does not have the
right to apply for bail in case of a non-bailable offence. The power to release a person on bail in
a non-bailable offence lies with the court. Section 437 of the CrPC lays down the power of court
to grant a bail to a person even in a non-bailable offence. Non-bailable offences under the IPC
include sedition, waging or attempting to wage war against the government, counterfeit of Indian
currency, adulteration of drug, murder (Section 302), culpable homicide not amounting to
murder (Section 304), dowry death (Section 304B), Abetment of suicide, Abetment of suicide,
abduction of child under 10, trafficking of person, rape (Section 376), cruelty by husband or his
relatives (Section 498A), etc. The conditions on which the court grants a bail in a non-bailable
offence are as follows:
1. If the accused is a woman or child, bail can be granted in a non-bailable matter.
2. If there is a lack of adequate evidence, the court can grant a bail in non-bailable offence on
discretion.
3. If there is a delay in registering the FIR by the complainant.
4. If the person accused is physically or gravely sick.
5. If there is some corroboration as to personal animosity between the accused and the person
who filed the criminal matter.

Anticipatory Bail: Section 438 CrPC: Anticipatory bail means bail in anticipation of an arrest.
Any person who apprehends arrest under a non-bailable offence in India can apply for
Anticipatory Bail under the provisions of section 438 of The Code of Criminal Procedure, 1973.
It is basically bail before arrest, a person arrested cannot seek Anticipatory Bail CrPC, he would
have to move for regular bail.

Conditions for Anticipatory Bail:

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

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CODE OF CRIMINAL PROCEDURE, 1973

direction under this section that in the event of such arrest he shall be released on bail; and that
Court may, after taking into consideration, inter-alia, the following factors.
• The nature and gravity of the accusation.
• The antecedents of the applicant including the fact as to whether he has previously
undergone imprisonment on conviction by a Court in respect of any cognizable offence.
• The possibility of the applicant to flee from justice.
• Where the accusation has been made with the object of injuring or humiliating the
applicant by having him so arrested, either reject the application forthwith or issue an
interim order for the grant of anticipatory bail
Provided that, where the High Court or, as the case may be, the Court of Session, has not passed
any interim order under this Sub-Section or has rejected the application for grant of anticipatory
bail, it shall be open to an officer in-charge of a police station to arrest, without warrant the
applicant on the basis of the accusation apprehended in such application.
The High Court and the Court of Session to whom the application for anticipatory bail is made
can impose such conditions as the case may warrant. The conditions mentioned in Section 438(2)
are merely illustrative and not exhaustive. The Court while granting anticipatory bail must
remember that the investigation has not yet been completed and it is the duty of the court to
ensure that the investigation should not be hampered or interfered with in any manner.

The Court has a power to put some conditions and restrictions as per the type of bail. These are:-
• A condition that the person shall make himself available for interrogation by a police officer
as and when required.
• A condition that the person shall not, directly or indirectly, make any 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.
• A condition that the person shall not leave India without the previous permission of the
Court.
• Such other condition as may be imposed under Sub-Section (3) of section 437, as if the bail
were granted under that section.
Cancellation of Bail: The court has the power to cancel a bail granted even at a later stage. The
power of the court is laid down under Section 437(5) and 439(2) of the CrPC. The court can
cancel the bail granted by it and give directions for the arrest of the person in police custody.
However, the court does not have the power to cancel a bail granted by a police officer.

Appealability of the order (section 439 CrPC): Section 439 of the Code states that any orders
passed under section 436 of the code shall be appealable.
1. The order made by the magistrate to the session’s judge is appealable.
2. In case when the court of sessions passes an order to the court where an appeal lies from an
order made by such court.

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The maximum period for which an under-trial prisoner can be detained (section 436- A of the
code): Under section 436A CrPC of the code states that the detention period for an under trial
prisoner other than the one who is accused of the criminal offences punishable with death or life
imprisonment shall be released from detention if the person has been detained for one half of the
maximum sentence provided for the offence committed by him.

Question 9: Write a detailed note on the provisions relating to criminal appeals under
CrPC.
Ans. The term “appeal” has not been defined in the code. The word ‘appeal’ means the right of
carrying a particular case from an inferior to a superior court with a view to ascertain whether the
judgment is sustainable. An appeal is a creature of a statute and only exists where expressly
given. An appeal implies additional time and expense in the final disposal of the case. Therefore,
though the right of appeal is integral to a fair procedure and natural justice, the Code, as a policy,
prefers to allow the appeal in specified circumstances only. The provisions relating to criminal
appeals are contained in Secs. 372-394 of the Code.
According to Sec. 372 of the Code, No appeal shall from any judgment/order of a criminal court
except as provided by the Code or by any other law. Sec. 372 has been amended in 2008:
Amendment of Section 372 (Victim’s right to prefer an appeal against any adverse order passed
by the trial court): In Section 372, the following proviso shall be inserted, namely; ‘Provided that
the victim shall have a right to prefer an appeal against any order passed by the Court acquitting
the accused or convicting for a lesser offence or imposing inadequate compensation, and such
appeal shall lie to the court to which an appeal ordinarily lies against the order of conviction of
such Court.’
Section 373 CrPC – Appeal in Court of Sessions: In the event that a person has been ordered
to offer security for the purpose of maintaining the peace or for good behaviour, an appeal
against the order may be filed with the Court of Session in accordance with Section 117. Where a
person has been wronged by any order refusing to accept or reject a surety, the person may seek
redress under Section 121.
Section 374 CrPC – Appeal from Convictions:
• High Court orders of conviction issued while exercising original criminal jurisdiction
have the right to be appealed to the Supreme Court.
• Conviction orders issued by the Court of Session or Additional Court of Session are
appealable to the High Court.
• If the Court of Session or the Additional Court of Session imposes a sentence of more
than seven years in prison, the defendant may appeal the decision to the High Court.
• Appeals may be taken to the Court of Session from convictions handed down by the
Metropolitan Magistrate, Judicial Magistrate I, or Judicial Magistrate II.
• The Court of Sessions hears appeals from anyone who is dissatisfied with the results of a
criminal proceeding under Sections 325 and 360 of the Criminal Procedure Code.

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Exception to Section 374: The exceptions to Section 374 of the Criminal Procedure Code are
found in Sections 375 and 376 of the CrPC as given below:
• There is no right to appeal a conviction where the defendant has made a guilty plea and
been found guilty on the basis of that plea.
• A person who has been found guilty and sentenced by a high court to a period of
imprisonment of not more than six months or a fine of not more than one thousand
rupees, or to both such imprisonment and fine, shall not be permitted to file an appeal
against that sentence.
• A person who has been found guilty and sentenced by a court of the session or a
metropolitan magistrate to a period of imprisonment of not more than three months or a
fine of not more than two hundred rupees, or to both such imprisonment and fine, shall
not be permitted to file an appeal against that sentence.
• A person who has been fined by a first-class magistrate of not more than one hundred
rupees shall not be permitted to file an appeal against that sentence.

Section 377 and 378 CrPC – State appeals:

Section 377 CrPC – Appeal against sentence: The state government may appeal the sentence
to the Court of Session or High Court on the grounds that it is inadequate pursuant to this clause,
which may be done through the office of the public prosecutor. If one disagrees with a
magistrate’s sentencing decision, they have the right to file an appeal with the Court of Sessions.
If a sentence is handed down by a lower court, an appeal could be filed with the high court. If the
inquiry is conducted by the Delhi Special Police Establishment or another central agency, the
Central Government would issue the directive to the public prosecutor. It is expected that the
accused will be given a fair hearing before any appeal/decision to increase sentence is issued.

Section 378 CrPC – Appeal in case of acquittal: If a magistrate issues an acquittal in a case
involving a cognizable and non-bailable offence, the district magistrate may instruct the public
prosecutor to appeal the decision to the Court of Session. If an acquittal is issued by a court other
than the high court, the state can still ask for a review of the decision by filing an appeal with
that court. If the inquiry was conducted by the Delhi Special Police Establishment or another
government body, the Central Government will provide instructions on how to file an appeal. It
should be mentioned that the high court’s authorisation will be sought in advance of launching
an appeal there. In the event that the high court grants special permission to make an appeal, the
complaint may do so in the event that the case launched on the basis of the complaint is
afterwards acquitted. A government employee who has been found not guilty may file a new
application within six months after the acquittal. An application may be filed within 60 days
following the judgment of acquittal if the complainant is not a government employee. No appeal
from a judgment of acquittal shall lie if such an appeal is dismissed.
Section 379 CrPC- Appeal against conviction by High Court in certain cases : If a person’s
acquittal by the high court is overturned and he is subsequently convicted and sentenced to death,

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life in prison, or a term of imprisonment of 10 years or more, the accused may appeal to the
Supreme Court.
Petition of Appeal and its presentation (Sections 382 and 383)
Before understanding the Summary dismissal of Appeal, it is necessary to brief about the
provisions under Sections 382 and 383. Section 382 lays down that the appeal should be in the
form of a petition with the attached copy of judgment or order. Further, Section 383 specifies the
provision of appeal for the people who are in jail. According to which, the petition of appeal and
the attached copy of order or judgment should be presented to the officer in charge of jail who
would forward the same to the Appellate Court.
Summary dismissal of Appeals
• Summary dismissal of Appeals means the informal manner of dismissing the appeal, without
any delay of the formal proceedings. Section 384 expressly specifies that appeals made under
Section 382 cannot be dismissed without giving the reasonable opportunity of being heard to
the appellant or pleader. While appeals made under Section 383 can be dismissed without
hearing the appellant when the court is of the view that the appeal is frivolous or it would be
inconvenient to produce the accused in custody before the court.
• The court has the discretion to call for the record of the case while dismissing the appeal
under this Section.
• If the Court of Session or Chief Judicial Magistrate is dismissing the appeals then they have
to record the reasons for the same.
• Further Section 384(4) says that in case the appellant’s appeal has been dismissed under
Section 383 and appeal was also made by him/ her under Section 382 then the court may
dismiss such appeal subject to the provisions of Section 393.

Procedure for hearing appeals not dismissed summarily: In case the appeal is not dismissed
under Section 384, the court shall give the particulars regarding date and time to the appellant or
officer appointed in this behalf or complainant or accused in case appeal is under section 377 or
378. If the record of the case is not available then the Court can send for the records but in case
of appeal regarding the legality of the sentence, the court has the discretion to dispose of the
appeal without sending for the record. As per Section 385(3), the court shall not hear any other
ground of appeal when the only ground is of the severity of the sentence.

Powers of the Appellate Court

Section 386 vividly lays down the powers of the Appellate court in appeals under Section 377 or
Section 378. Following are such powers:
• Appeal against acquittal- In case of appeal against acquittal, Appellate Court has the
following powers:
• to reverse such order;
• to direct that further inquiry be made;
• order the re-trial;

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• to pass orders on him according to law.

Powers of Appellate court to grant bail: Only Appellate Court can exercise powers under
Section 389 where an appeal is being made. According to this provision, the court can make the
orders of suspension of execution of the sentence or in case the person is in confinement, the
order of convict’s release on bail or on his own bail, and the reasons are to be recorded in
writing.
Power of Appellate Court to obtain further evidence: In the case of appeals, Appellate Court
has the power to take additional evidence which it thinks is essential after recording the reasons.
The Appellate Court can take such evidence itself, or direct the Magistrate. After taking the
additional evidence, the court or Magistrate has to certify that “the court shall thereupon proceed
to dispose of the appeal”.
Procedure where Judges of Court of Appeal are equally divided
Section 392 makes the provision in case the appeal is before the High Court and the Bench of
judges are equally divided in opinion, in such cases, according to this section, the appeal shall be
laid before another judge of that Court and that Judge can give his/ her opinion for the same.
Also, any of the judges of the Bench or the Judge to whom the case is presented under this
Section can direct that the appeal should be re-heard.
Rules regarding judgment of subordinate Appellate Court
According to Section 387 CrPC, the rules contained in Sections 353 to 365 are to be applied to
the judgment in the appeal of a Court of Session or Chief Judicial Magistrate to the extent they
are practicable. Also, the accused shall not be brought up, or required to attend or hear judgment
delivered, unless the Appellate Court otherwise directs.
Further, Section 388 specifies that in case the appeal was made to the High Court, the order or
judgment is to be certified by the court against whose order or judgment, the appeal was made.
Finality of Judgments and orders on appeal
Section 393 says that except in the cases under Section 377, 378, 384(4) or in Chapter XXX, the
orders of Appellate Court shall be final. Some exceptions to the final disposal of appeal by
Appellate Court are as under:
• When the appeal is against acquittal under Section 378;
• When the appeal is for the enhancement of sentence under Section 377.
The remedy to challenge the decision of the Appellate Court is only by filing a revision.
Abatement of Appeals
Section 394 highlights that the appeal under Sections 377 or 378 shall finally abate on the death
of the accused and all other appeals except the appeal from a sentence from fine abate on the
death of the appellant. When the appeal is against conviction and sentence of death or of
imprisonment, then after the death of the appellant, his/ her near relatives have to apply to the
Court within 30 days of the death.

Question 10. Distinguish between Reference and Revision.

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Ans.: Chapter XXX of the Code of Criminal Procedure deals with two important jurisdictions,
viz., (1) reference and (2) revision. The Reference jurisdiction can be invoked either by (a) any
Court or (b) a Metropolitan Magistrate (section 395). In both cases, the reference can be made
only on the validity of any Act or any provision thereof or on a question of law and must arise in
the hearing of a case.
On the other hand, the High Court and the Sessions Judge can exercise the revisional jurisdiction
(section 397). The record of the case is called for with a view to order further inquiry (section
398). Where the High Court exercises the jurisdiction either of itself or which otherwise comes
to its knowledge, it can exercise any of the powers which are conferred on an appellate Court
(section 401). The jurisdiction referred to above is the revisional jurisdiction of the High Court.

Difference between Reference and Revision: The main difference between Reference and
Revision under the Code of Criminal Procedure Code, 1973 are the following:-
• The Reference is made when a question arises in the pending case as to the validity of any
Act, Ordinance, or Regulation and a determination of such question is necessary for the just
decision of the case. The Session Judge or Metropolitan Magistrate only has the power to
refer a case involving a question of law. On the other hand, revision lies on the point of law
only.
• Reference is defined from Section 395-396 of the CrPC, while Revision is defined from
Section 397-402 of the Code.
• Reference is made by the trial court to the High Court. The revision can be initiated by the
trial court suo moto or the High Court. Thus, Reference lies to High Court only, but Revision
lies to other Courts also.
• Reference lies in pending cases only. The revision begins under the final judgment, order, or
decision of the court and may lie in both pending and decided cases.
• There is one stage in reference, while in revision, there are two stages, i.e. (i) Preliminary
Examination and (ii) Reversal or Alternative Sentence or Order.

Question 11. Write a note on the procedure for summary trial.

Ans. Summary Trial: A summary trial is a type of trial in which matters are resolved quickly,
the procedure is shortened, and the proceedings are recorded quickly. Small offenses are tried in
summary trials alone, and complicated cases are reserved for summons or warrant trials. The
primary goal of summary trials is to expedite the resolution of cases because the judicial backlog
is enormous and growing. In addition, summary trials aim to uphold the legal concept that
“justice delayed is justice denied.” Summary trials allow people to seek justice for minor
offenses that would otherwise take years to resolve through the legal system. Sections 260-265
CrPC contain legal provisions for summary trials.
Competent Magistrate Chief Judicial Magistrate –
Section 260(1)(a) Metropolitan Magistrate
Section 260(1)(b) Judicial Magistrate Class I empowered by High Court

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Section 260(1)(c) Judicial Magistrate Class II empowered by High Court-

Section 261 Cases that can be tried summarily:
• Offenses that are not punishable by death, life imprisonment, or a sentence of more than
two years in jail.
• If the value of the stolen property is less than 2000 rupees, the theft is punishable under
Sections 379, 380, or 381 of the Indian Penal Code, 1860.
• Under Section 411 of the Indian Penal Code, 1860, a person who receives or retains
stolen property valued less than 2000 rupees commits a crime.
• Under Section 414 of the Indian Penal Code, 1860, a person who assists in hiding or
disposing of stolen property valued less than 2000 rupees commits an offense.
• Sections 454 and 456 of the Indian Penal Code, 1860 cover a variety of offenses.
• Under Section 504 of the Indian Penal Code, 1860, a person who insults with the goal of
causing a breach of peace is guilty.
• Under Section 506 of the Indian Penal Code, 1860, criminal intimidation is punishable by
up to two years in prison, a fine, or both.
• Any of the above-mentioned offenses is abetted. If an attempt is made to commit any of
the aforementioned offenses, and the attempt is punished, If an act is committed that is
punishable under Section 20 of the Cattle Trespass Act, 1871, a complaint can be lodged.

Procedure: The method for summary trials is outlined in Section 262 of the Code of Criminal
Procedure, 1973. The accused is then brought before the Magistrate, who orally reads the details
of the charges to him. A formal charge is not laid down in summons and summary trials. After
outlining the specifics of the offense, the Magistrate asks the accused if he pleads guilty or not
guilty. If the accused pleads guilty, the Magistrate creates a record of the accused's statement
before proceeding to conviction. The trial will begin if the accused does not enter a plea of
guilty. Both the prosecution and the defense are given equal time to present their cases. The
judge will next decide whether the defendant is acquitted or not. In most circumstances, the
distinction is made at this point. If the accused is found guilty by the judge, the maximum
penalty for jail that can be imposed is three months.

Judgment: The Magistrate shall record the substance of the evidence and subsequently issue a
ruling in a summary trial in which the accused does not plead guilty, according to section 264.
According to section 265, the High Court has the authority to select any Magistrate or official
appointed by the Chief Judicial Magistrate to try a case summarily, prepare a record, or render
judgment.

Q. 12. Write a note on the provisions of plea bargaining under Cr.P.C.

Ans. The word ‘plea’ means “request” and the word ‘bargaining’ means “negotiation”. So, in
simple terms, it means a process under which a person who is charged with a criminal offence
negotiates with the prosecution for a lesser punishment than what is provided in law by pleading

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guilty to a less serious offence. It is based on the principle of ‘Nolo Contendere’, literally
meaning ‘I do not wish to contend’. The concept of plea bargaining is contained in Chapter XXI-
A of the CrPC under Sections 265A-265L. This part was added by the Criminal Law
(Amendment) Act of 2005. These provisions provide the procedure for filing the application of
plea bargaining, and along with it, they also put limitations or exceptions where this concept
cannot be used.

Exceptions to plea bargaining

• Offences that are punishable with death, imprisonment of life, a term exceeding 7 years
of imprisonment,
• Offences against women (like stalking or rape),
• Offences against children under the age of 14
• Offences that affect the socio-economic condition of a country (like food adulteration or
money laundering)
• Apart from this, where the court finds that a person has been convicted under the same
offence previously or that he (accused) has involuntarily filed the application under this
concept, the court can proceed further in accordance with the law from the stage where
such an application has been filed.

Section 265-A explains that plea bargaining can be made where a report under Section 173 of the
CrPC is made or a magistrate has taken cognizance of an offence. After examining the complaint
under Section 200 of the CrPC, he issues the process under Section 204 of the CrPC for the
offences that are punishable with less than seven years of imprisonment.

Section 265-B says that the person who wants to avail of this plea has to file an application in
court in which the trial for such an offence is pending. In the application, the defendant has to tell
his case in brief, and along with the application, an affidavit has to be attached in which he has to
swear that he is filing this application willfully and after understanding all the consequences of
taking this plea. Also, the defendant has to mention that he has not been previously convicted by
a court in a case in which he had been charged with that same offence. After receiving the
application, the court will issue notice to the complainant or to the public prosecutor, as the case
may be, and the accused has to appear on the date fixed for the case. After this, when everyone
appears for the case, the court shall record the statement of the accused in front of a camera
where the other party is not present to satisfy itself that the accused has filed the application
voluntarily. Once the court is satisfied that the accused has filed the plea voluntarily, it can ask
the party to go for a mutually satisfactory disposition where the victim is compensated by the
accused, and then a date is fixed for the next hearing. But if the court thinks that the application
was not filed voluntarily or that the accused has been previously charged for the same offence, it

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shall proceed further in accordance with the procedure of the Code of Criminal Procedure from
the stage where such an application was filed.

As per Section 265-C, where the court is satisfied that the application of plea bargaining was
filed voluntarily under a case instituted on a police report or otherwise than on a police report,
the court shall issue notice to the parties and, where required, to the public prosecutor and police
officer to participate in the meeting and do a MSD. Throughout this process, the court has the
duty to ensure that the parties in the meeting are working voluntarily. The court is under the duty
to ensure that the parties are voluntarily participating in the whole process, and if the accused or
the victim wants, they can participate in the meeting along with their pleader.

Then as per Section 265-D, where the MSD worked out successfully, the court has to prepare a
report of such a disposition, which will be signed by all the persons present in that disposition
along with the presiding officer of the court. But if the MSD didn’t work out, the court has to
record its observations and then proceed further with the case in accordance with the provisions
of the CrPC from the stage where the application of plea was filed.

When there is a satisfactory disposition of the case under the previous section, the court shall
under Section 265-E proceed by awarding compensation to the victim as per the disposition
arrived at and, at the same time, hear the parties on necessary things like the quantum of the
punishment. Then, if the accused falls under the purview of Section 360 of the CrPC or under the
Probation of Offenders Act, 1958, or any other law, he may be released on probation to provide
for the benefit of any such law. Then the court will see that if there is any clause for the
minimum punishment for that offence, then the court will sentence the accused to half of the
minimum punishment for that offence. And in certain cases, the sentence is made one-fourth of
the punishment provided or extendable, as the case may be, for that offence.

In regard to the terms of the previous section, the court as per Section 265-F has to deliver its
judgement in the open court, and the same shall be signed by the presiding officer of the court.

The judgement provided by the court will be considered final as per Section 265-G. And no
appeal can lie in any court against such a judgement except the Special Leave Petition (SLP)
under Article 136 of the Indian Constitution or the writ petition under Article 226 and Article
227 of the Constitution.

In accordance with Section 265-H, the court shall possess all the powers that are necessary for
fulfilling its responsibilities under this chapter, including those related to granting bail,
conducting trials for offences, and handling other matters related to the case resolution as
prescribed by this Code of CrPC.

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As per Section 265-I, the role of Section 428 of the CrPC shall apply in this case, and the time
period of detention already undergone by the accused shall be set off against the sentence of
imprisonment imposed. This will work in the same manner as it applies in respect of
imprisonment under other provisions of this Code.

As per Section 265-J, the provisions stated in this Chapter shall remain valid regardless of any
conflicting provisions found in other sections of this Code, and no interpretation of the
provisions in this Chapter shall be limited by any of the aforementioned conflicting provisions.
And for the purpose of this Chapter, the term “public prosecutor” shall have the same meaning
assigned to it under clause (u) of Section 2 and shall also include an assistant public prosecutor
designated under Section 25 of the CrPC.

In accordance with Section 265-K, the statements or facts that were stated by the accused in the
application filed by him regarding plea bargaining shall not be used for any other purpose except
for the purpose of this chapter.

As per Section 265-L, nothing in this Chapter shall apply to any juvenile or child as defined in
clause (k) of Section 2 of the Juvenile Justice (Care and Protection of Children) Act, 2000.

Q. 13. Write down the procedure to record Confession and statements under Section 164
Cr.P.C.
Ans. Section 164 of the Criminal Procedure Code deals with the magistrate’s power to record a
confession and other statements. The confession so recorded can be used as substantive
evidence. A confession is a statement in which the suspect acknowledges his guilt of a crime. A
statement is the declaration of matter of fact.

Who is Competent to Record a Confession or Statement?

Irrespective of the fact whether they have jurisdiction or not, a confession or a statement can be
recorded by a Metropolitan Magistrate or by a Judicial Magistrate. The proviso to section 164 of
the Criminal Procedure Code provides that the police officer to whom the powers of the
magistrate have been conferred is not competent to record confessions.

When can a Confession or Statement be Recorded by the Magistrate?

A confession of a statement under section 164 of the Criminal Procedure Code can be recorded:
(i) either in the course of the investigation.
(ii) or anytime afterwards but before the commencement of inquiry or trial.

Manner of Recording a Confession under CrPC:

Before recording a confession, the magistrate has to explain to the person confessing that:

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(i) he is not bound to make such confession

(ii) and if he makes such a confession, it can be used against him as evidence.

Provisions of section 164 of the Criminal Procedure Code act as a safety valve to prohibit
involuntary confession. To ensure that the confession is made voluntarily following directions
are to be followed by the magistrate:

1. After giving the above-said warning, the magistrate should provide adequate time to the
accused to think so that he is free from police influence (when he comes from police custody).

2. The accused will be asked about the treatment that he received in custody.

3. If there are any marks or injuries on the accused person’s body, he will be asked how he
received them.

4. If the accused is handcuffed, his handcuffs will be ordered to be removed.

5. If the accused expresses his unwillingness to make a confession, then he will not be remanded
to police custody.

6. Accused will be asked the reason as to why he is making such a statement which is against his
self-interest.

7. The magistrate has to apply his judicial mind to ascertain that the accused confessing is not
under any kind of influence, threat or promise.

8. The court can reject a confession if it is not found to be perfectly voluntary.

9. To determine the voluntariness of the confession, the prisoner’s mental state must be
considered.

10. If the prisoner knows how to write, he may be asked to give his confession in writing to
derive the real version from the prisoner himself.

11. The magistrate can explain to him his right to consult a lawyer before recording his
confession under Article 22(1) of the Constitution and section 303 of the Criminal Procedure
Code.
How a Confession is Recorded under CrPC?
Section 164(4) of the Criminal Procedure Code provides that confession shall be recorded in the
manner provided under section 281 of the Criminal Procedure Code.

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Section 281 of the Criminal Procedure Code is related to the mode of recording the examination
of the accused and the language of such record and examination. It is to be noted that no oath
shall be administered to the accused while making the record. The record shall be read over to
the accused in the language which he understands.

A memorandum of substance will be prepared by the magistrate recording the confession, and it
will be signed by the accused and the magistrate. The magistrate who records the confession
statement shall then send the record directly to the magistrate by whom the case is to be tried.

The format of the memorandum is as follows:

“I have explained to (name) that he is not bound to make a confession and that, if he does so, any
confession he may make may be used as evidence against him, and I believe that this confession
was voluntarily made. It was taken in my presence and hearing and was read over to the person
making it and admitted by him to be correct, and it contains a full and true account of the
statement made by him.
(Signed)
A. B. Magistrate”
Non-compliance of Section 164 or 281 of CrPC: If the provisions of section 164 or section 281
of the Criminal Procedure Code are not followed, then the evidence can be taken for such non-
compliance. Such a statement may be admitted if the magistrate is satisfied that the non-
compliance has not injured the accused in his defence on the merits and that the statement was
duly made.
Manner of Recording Statement under Section 164: Section 164(5) of the Criminal Procedure
Code lays down that if the accused desires to make any statement other than a confession, it can
be recorded by the magistrate. Such statements will be recorded in the manner evidence is
recorded. Here the magistrate can administer an oath to the person making such a statement.
Statement by Mentally or Physically Disabled Person: In recording the statement, an
interpreter or a special educator’s assistance shall be taken by the magistrate if the person
making the statement is temporarily or permanently mentally or physically disabled. Such
recording shall be video graphed.

Q. 14. What is a Chargesheet?

Ans.

▪ A chargesheet, as defined under Section 173 CrPC, is the

About final report prepared by a police officer or investigative
agency after completing their investigation of a case. It is
submitted before the Court for initiating the criminal trial.

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▪ the names of the parties;

▪ the nature of the information;
▪ the names of the persons who appear to be acquainted with
the circumstances of the case;
Contents ▪ whether any offence appears to have been committed and, if
so, by whom;
▪ whether the accused has been arrested;
▪ whether he has been released on his bond and, if so, whether
with or without sureties;
▪ whether he has been forwarded in custody under section 170
The prescribed time limit for filing charge sheet is as follows:
Time Limit for ▪ Offences the punishment of which is less than 10 years: 60
Filing days
Chargesheet ▪ Offences the punishment of which is above 10 yeears: 90
days
Procedure after After preparing the chargesheet, the officer-in-charge of the police station
Filing the forwards it to a Magistrate, who is empowered to take notice of the offences
Chargesheet mentioned in it so that the charges can be framed.

Under Section 173 (8) of CrPC where upon such investigation, the officer-
Supplementary
in-charge of the police station obtains further evidence, oral or documentary,
Chargesheet
he shall forward to the Magistrate a further report.

Report made by the police officer on the completion of an investigation

Section 173(1) CrPC: This subsection states that an investigation of a matter must be completed
by the police officer without any kind of unnecessary delay. In other words, it means that an
investigation in a case under this section should not be delayed without reasonable grounds.
Section 173(1A) CrPC

Section 173(1A) states that the date for any investigation regarding the offences mentioned
below shall be counted from the starting day when the police officer or the investigating officer
of the police station recorded the information. The phrase “rape of a child may be completed
within three months” under this subsection shall be replaced with the words, letters, and figures
“an offence under sections 376, 376A, 376AB, 376B, 376C, 376D, 376DA, 376DB, or 376E of
the Indian Penal Code shall be completed within two months”.
Section 173(2) CrPC

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Ms. Sandeep Rani,
Asstt. Professor-Laws
CODE OF CRIMINAL PROCEDURE, 1973

(i) It states that the police authorities, after having completed the investigation, should submit
the report to the Magistrate, who has been empowered to take cognizance of the offence. The
report must be submitted in a way that is already prescribed by the State Government. It shall
contain the following things:

• The names of all those parties involved in the case;

• The nature of the information regarding the matter;
• The names of those persons who are familiar with the facts and circumstances of the
case;
• If an offence seems to have been committed, and if so, then details of those who might
have committed the said offence;
• If the person accused of committing the offence has been arrested;
• If the accused has been released on bond, with or without sureties;
• If the accused has been forwarded into custody as per Section 170;
• If it relates to any offence under Sections 376, 376A, 376AB, 376B, 376C, 376D,
376DA, 376DB, or Section 376E of the Indian Penal Code, 1860, then whether the
medical examination report of the victim has been attached or not;

(ii) This subsection states that the police officer must inform the person, if any, who had initially
given the information about the occurrence of an offence, about actions taken by him regarding
the information, in such a way that the State Government may specify.

Section 173(3) CrPC: As per this section, if a Superior Official of the Police has been appointed
for a case under Section 158, the report must be submitted by such official to the Court, if the
State Government has directed so by general or special direction. If there is no direction from the
State Government, the Investigating Officer may submit the report. The superior officer of police
is empowered to direct the Investigating Officer for further investigation, even if such an order is
not passed by the Magistrate.

Section 173(4) CrPC: It states that in case the magistrate finds from the report that the accused
has been released on his bond, the Magistrate can make such a discharge order of that bond, if he
deems fit.

Section 173(5) CrPC: It lays down the procedure for preparing reports in cases that come under
the purview of Section 170. It is the duty of the police officer to give the following details to the
Magistrate along with the report:

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Code of Criminal Procedure, 1973
Ms. Sandeep Rani,
Asstt. Professor-Laws
CODE OF CRIMINAL PROCEDURE, 1973

• All other documents or relevant facts and evidence on which the prosecution proposes to
rely on apart from all the information that has already been sent to the Magistrate
previously at the time of investigation;
• When the police have recorded statements of people under Section 161 and the
prosecution is willing to examine those people. The police must forward those statements
to the magistrate.
• The types of documents this provision anticipates are usually reports on post-mortem
examinations, handwriting experts, chemical examiners, fingerprint experts, etc. The
accused is also allowed to ask for the recordings of the statements of those persons from
the police officer who were questioned during the investigation and use relevant
information as his defence.

Section 173(6) CrPC: It deals with those matters where the police officer does not disclose any
part of a statement made by those who are examined during the investigation because it is
immaterial to the subject matter of the case or disclosing it to the accused is not necessary in the
interests of justice and is detrimental to the public interest. In such a situation, the police officer
shall specify the portion and attach a note requesting the Magistrate not to include those portions
in the copies to be given to the accused and expressing his reasons for such a request.

Section 173(7) CrPC: It states that if the police officer, while investigating a case, thinks it
appropriate to do so, he can provide the accused with copies of all or any documents that are
mentioned in sub-section (5) of Section 173.

Section 173(8) CrPC: This subsection says that if the police submit a police report or a charge-
sheet to the Magistrate under sub-section (2) of this Section, it will not prevent them from
investigating further into that matter. While investigating further, if the police officer gets any
new oral or documentary evidence, he shall make a report on it in the prescribed format and send
it to the Magistrate. That report can be stated as a supplementary report or supplementary charge
sheet or additional challan.

Q. 15. Write down the Magistrate’s Power in urgent cases of Nuisance and Apprehended
Danger under Cr.P.C?
Ans. Powers of magistrates in urgent cases of nuisance: Section 144 Cr. P.C. deals with the
power to issue orders in urgent cases of nuisance or apprehended danger. These powers provide
directions in dealing with situations that cause danger to human life, disturb public tranquillity,
result in riots or affray. These situations have the potential to create unrest or danger to public
peace and tranquillity in any area, due to any disputes.

Purpose:

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Code of Criminal Procedure, 1973
Ms. Sandeep Rani,
Asstt. Professor-Laws
CODE OF CRIMINAL PROCEDURE, 1973

• The ultimate purpose of Section 144 is to maintain peace and order in the areas where
trouble could erupt to disrupt the regular life.
• It prevents, or tends to prevent, obstruction, annoyance or injury to any person lawfully
employed, or danger to human life, health or safety or a disturbance of public tranquility,
or a riot, or an affray.

Essential Elements:
1) The orders under Section 144 (1) can be issued by:

• District Magistrate;
• Sub-Divisional Magistrate; or
• Executive Magistrate specially empowered by the State Government.
A magistrate can start the proceedings if there is an immediate or speedy remedy is desirable in
the following situations mentioned under this clause:

• Danger to human life;

• Disturbance to public tranquillity;
• Riot; or
• Affray.

2) Ex-Parte decisions can be taken in cases of emergency under Section 144(2): If there is an
emergency or in any circumstances where notice cannot be served to that person against whom
the order has directed, be passed ex parte.
3) Orders passed by Magistrate have an expiry date under Section 144 (4): Such orders expire
within 2 months from the date the order has been made or issued. But in the exceptional cases if
the State Government considers it necessary by notifications, it can direct that an order made by
the magistrate which is to be enforced for 2 months will continue for a period, not exceeding 6
months.
4) Alteration can be made under Section 144(5): Any alteration can be made in the order under
this section. It can be made by the magistrate himself, or by a magistrate subordinate to him or
by a predecessor in his office. Such alteration will be made either on an application by the
aggrieved person or even the magistrate himself can do so.

Procedure: A Procedure needs to be followed by the Magistrate, when section 144 is imposed:
1) Against whom the order has been passed under Section 144(7)

The aggrieved person against whom the order has been passed if he approaches the court under
sub-section(5), he will be given the earliest opportunity of hearing. On the other hand, if his
application has been rejected wholly or in part either by the State Government or by the
Magistrate, the reasons are to be given the reason in writing.

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Ms. Sandeep Rani,
Asstt. Professor-Laws
CODE OF CRIMINAL PROCEDURE, 1973

Sub-section 7 provides that the proceedings should be judicial in nature and evidence would be
recorded in an open court before the alteration or a rescinding order is passed.

Certain restrictions can be imposed by a magistrate: Section 144 of CrPC restricts the
assembly of five or more people in a public place with a common object. As per the code, each
person of that ‘unlawful assembly’ will be booked under Section 143 of IPC. Unlawful
Assembly is defined under Section 141 of the Indian Penal code. An assembly of five or more
persons with a common illegal object is said to be an unlawful assembly. And if the common
object of those 5 people composing that assembly is any of the five objects declared illegal under
Section 141 of IPC:

• To overawe Government by criminal force;

• To resist the execution of a law or legal process;
• To compel any person to do illegal acts;
• To commit an offence; or
• Forcible possession or disposition of property.

It restricts the handling of any kind of weapon in the area where Section 144 is imposed. A
magistrate can pass an order or by a public notice, declare restrictions in carrying of arms in
procession, or holding of, or taking in any mass drill or mass training with arms in a public place.
If he has a reason to believe that it is necessary for:

• Public safety;
• Preservation of public peace; or
• Maintenance of public order.

It prohibits carrying dangerous weapons, including lathis, sharp-edged metallic objects which
covers a knife used in a kitchen. If any person violates the and is still engaged in the activity,
then he can be detained. Whereas this section doesn’t restrict police officials to carry guns.
Police and other security personnel are the only ones who are allowed to carry weapons in the
area where Section 144 is imposed. As per the Section 69A of the Information Technology Act,
the government has the right to shutdown the internet. Section 144 IPC gives power to a
magistrate to stop internet access in a region.

Case Law:In the case of Madhu Limaye v. Sub-Divisional Magistrate (1970), the Supreme Court
upheld the constitutionality of Section 144 of CrPC. The Court said that “law may be abused” is
no reason to strike it down. It further ruled that the restrictions imposed through this section
cannot be held to be violative of the right to freedom of speech and expression.

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