Criminal Law can be divided into two heads:

Substantive Law- Creates an offence and prescribes punishment. Eg. IPC

Procedural/Adjective Law- Prescribes procedure for functioning of the criminal justice system.
Eg. CrPC

Structure of Criminal Courts:

High Court- Generally an appellate court, and very rarely exercises original jurisdiction. Highest
court mentioned in the CrPC. May pass any sentence authorised by law. (s. 28)

Sessions Court-
 Sessions Judge- 1 Judge per session division. Same powers as Additional Sessions Judge,
but with added administrative responsibility. May pass any sentence authorised by law.
Sentence of death is subject to confirmation by the High Court.(s. 28)
 Additional Sessions Judge- Same powers as a Sessions Judge, but without the additional
administrative responsibilities. Sentencing power same as Sessions Judge. (s. 28)
 Assistant Sessions Judge- Subordinate to the Sessions and Additional Sessions Judge.
May pass any sentence except death sentence, life imprisonment or imprisonment
exceeding ten years imprisonment. (s. 28)

In a District & Sessions Court, the Sessions Judge hears criminal matters and often the same
person hears civil matters as District Judge in the District Court.

Judicial Magistrate (JM)- Judicial magistrates are divided into two classes

JM 1st Class- May pass a sentence not exceeding 3 years imprisonment or fine, not exceeding Rs.
10,000, or both. (s. 29(2))
JM 2nd Class- May pass a sentence not exceeding 1 years imprisonment or fine, not exceeding
Rs. 5,000, or both. (s. 29(3))

Chief Judicial Magistrate (CJM)

The Chief Judicial Magistrate is a JM 1st class who is the highest judicial officer on the criminal
side in a district. May pass any sentence except death sentence, life imprisonment or
imprisonment exceeding seven years imprisonment (s. 29(1)).
To assist him, there are Additional Chief JMs.

In metropolitain areas, there are Metropolitain Magistrates (MM) who are all of the JM 1st Class
level and the powers of the CJM is the same as that of the CMM.
Executive Magistrate

Prosecuting agency
Public Prosecutor(PP)- 1 PP per district. He appears before the HC and Sessions Court on behalf
of the State.
To assist him, there are Additional PPs who appear in the same courts as him.
Assistant PP- Appears in Magistrates courts on behalf of the State.

Special PP- Appears before Special courts or in cases as the State may specifically assign to him.

Function of the Courts:

Inquiry
Trial

Hierarchy of the Police

In Metropolitain Areas, the commissionarate system is followed.
 Commissioner of Police
 Assistant Commissioner of Police
 Deputy Commissioner of Police
 Additional Commissioner of Police
 Officer-in-charge of a police station (O/C or otherwise called Station House Officer
(SHO))
 Police Sub-Inspector
 Assistant Sub-Inspector
 Head Constable

In Rural/ District areas:

 Director General of Police
 Additional Director General of Police
 Superintendant of Police
 Deputy Superintendant of Police
 Sub-Divisional Inspector
 Officer-in-charge of a police station (O/C or otherwise called Station House Officer
(SHO))
 Police Sub-Inspector
 Assistant Sub-Inspector
 Head Constable
S per s. 36, officers superior to the O/C can act as O/C.
Function of the Police:
Collection of Evidence
Submission of report on the basis of evidence called ‘final report’.

The CrPC will apply to all criminal cases unless there is a special act which specifically lays
down procedure and the provisions of the CrPC is in conflict with the special law.

The CrPC can be amended by both the Centre as well as the States as it in the Concurrent list. If
any state amendment is contrary to the central law, the Governor of that state must sign it after
which it must be signed by the President.
Article 254- If there is an inconsistency between Central law & State law, then the Central law
will prevail. However, f the matter is in the Concurrent list,the State Amendment will prevail, if
it has assent of the President.

A person cannot be detained by the police for more than 24 hours without the authority of a
Magistrate. Therefore, within 24 hours of arrest, the accused must be produced before the Court
of the Magistrate having jurisdiction.
On production before him, a Magistrate, may:
1. Remand to police custody (For 1 case against the accused, the maximum period of
detention is 14 days, irrespective of the offence committed. Here, the police can question
a person within their custody and the police must satisfy the Magistrate that the person
needs to be questioned for him to be remanded to Police Custody)
2. Remand to judicial custody (Time period is same as above, but, the accused is held in jail
or a correctional facility. Here, the police cannot question the accused without the
permission of the court. Often, the court may remand a person to such custody for the
protection of the accused.)
3. Release on bail.

Structure of the CrPC:

Sections: 484
Schedules: 2
Schedule I- Classification of offences into cognizable and non-cognizable & bailable and non-
bailable.

S. 2(d)- Complaint
S. 173(2)- Defines police report

A police report may be classified as under:

1. Case not sent up for trial when, final report states that-
- Allegation was false
 - Allegation was true, but, no evidence.
- Mistake of facts
- The offence alleged is not criminal, but the dispute arising is of a civil nature.
- The offence alleged is a non-cognizable offence- It was intitially recorded as a
cognizable offence, but on investigation it, was found that the offence is non-
cognizable. This police report is then considered to be a complaint witin the meaning
of s. 2(d), and as per the Explanation to s. 2(d), the police officer is regarded as the
complainant.
2. Case sent up for trial when, a charge-sheet/chalaan is submitted to the court by the police.
A charge-sheet is a police report which indicates that the allegation is true, and that
sufficient evidence is available and that prosecution against accused should take place.
Once police report of any kind, the victim is to be informed by the court. The court is not bound
by the police report. Victim can submit an objection to the police report before the court. This is
called a Naraji (dissatisfaction) petition. The Magistrate may treat this as a complaint within the
meaning of s. 2(d) of the CrPC.

Investigation is a duty of the police.

s. 173- Report to magistrate after completion of the investigation. Till then the court does not
have any role. Generally, trial to commence after charge sheet has been submitted.
Investigation is an executive function. Magistrate can ask for investigation to be conducted, but
cannot direct or steer the course of investigation. However, the High Court can order a direction
or steering of investigation for meeting the ‘ends of justice’ under s. 482.
Cf.- CBI v. St. of Rajasthan- Held: JM 1st class cannot direct CBI to investigate as per s. 156(3)
and s. 156 (1).
MC Abraham v. State of Maharashtra- Can judiciary intervene in the executive function of arrest
and investigation? Held: Decision of HC to interfere was tantamount to interference by the
judiciary in executive functions.

Offences & Classification:

1. Bailable & Non-bailable Offences
2. Cognizable & Non-cognizble offences
3. Compoundable & NonCompundable offences.
4. Offences triable by a Court of Sessions & those triable by a Magistrate’s Court.

In a bailable offence, bail is a matter of right in the first appearance. However,if the terms of the
bail were violated, the court may refuse to release the accused on bail on a subsequent
appearance.
The 2005 Amendment was significant in changing the regarding bail. One of th changes brought
in was that if the undertrial is in jail for ½ the period of his sentence, then bail must be given.If
the full sentence has been served, the under-trial must be discharged from prison.
Different Kinds of Bail:
 Regular Bail
 Anticipatory Bail: s. 438- Grantable only by Sessions, High Court. (Uttar Pradesh, by
state Amendment does not have anticipatory bail.)
Cancellation of Bail
Sessions Court, HC can cancel bail for serious offences.

Conflict of Laws (ss. 4,5 CrPC)

In case there is a conflict between CrPC & other special laws:
Mirza Iqbal v. State AIR 1983 SC 60.
Accused arrested for having disproportionate assets under Prevention of Corruption Act (PoCA).
Court ordered all such property to be confiscated under the CrPC. Accused claimed that PoCA
does not have anything about confiscation.
SC held: Where a special law is silent, the CrPC provisions will apply.
(Criminal Law Amendment Ordinance, 1944 lays down a list of economic offences where
property can be confiscated, even when the CrPC is silent on such a specific offence. Although
this is an ordinance, in practice, it is used by the police as a guideline.)

State v. Ram Saran

Ram Saran was a constable with the CRPF. He was appointed under the CRPF Act. S. 10 of the
CRPF Act says that being away from duty for 10 days or more without informing is an offence.
An Assistant Commandant is empowered by the Central Government as a judicial magistrate.
Ram Saran was convicted of this offence and sentenced to 3 months imprisonment. He appealed
to the Sessions Court under the CrPC provisions. The Sessions Court set aside the order of
imprisonment. HC also concurred with the Sessions Judge and set aside the order of
imprisonment. However, the SC overturned the decisions of the HC and Sessions Court. It said
that the CRPF Act is a law governing an armed Central force and has been passed by the Central
Government. This Act has made provisions to appoint a judicial magistrate. Therefore, even if it
is contrary to the CrPC, the procedure laid down in the special law will prevail over the CrPC.
Also, the CRPF Act provided for a review mechanism and appeal should have been under this
Act and not under the CrPC.

Hence, the effect of these two cases is that:

If special law is silent, the CrPC will come into force, but if the special law makes a special
arrangement/procedure, that will override the provisions of the CrPC.

Jurisdiction of the Courts:

For criminal matter,s the jurisdiction is divided into:
Subject matter jurisdiction:
Schedule I CrPC.
Eg.- 1. Special Courts set up under the NDPS Act.
2. Aftab Ansai tried within Alipore Jail itself due to security reasons.

Punishment/Pecuniary jurisdiction
Eg. Assistant Sessions Judge cannot try a case of murder as the maximum penalty is life
imprisonment or sentence of death. Addl. Sessions judge can give a sentence not exceeding 10
years imprisonment.

Territorial Jurisdiction:
Where the crime is partly or wholly committed.
Cf.- Harbans Lal v.St of Haryana; Mohan Baitha v. St. of Bihar.

If a judge receives a charge-sheet and he does not have the power to try the case, he shall
‘commit’ the case to a judge who is competent to try it.
SC: s. 184(a) says that if one or more crimes can be tried at one place, all the other crimes can
also be tried at that place, provided that they are ‘part of the same’ transaction. (Cf.- S. 6 Indian
Evidence Act, ss. 220, 184 CrPC).

When the police refuse to register an FIR, the victim can file a compliant with a Magistrate
u/s/200 and the Magistrate can direct the police to investigate u/s 156(3). Otherwise, the victim
can write to the SP of the police u/s 154(3).
Recording of an FIR is not a condition precedent in starting investigation.

In Criminal cases, no limitation applies of offence is punishable with more than 3 years. S. 468
gives a limitation period for offences for which the punishment does not exceed 3 years.
The Sri Krishna Commission recommended action against Bal Thackerey u/s 153A if the IPC,
but the limitation period was over by the time the action could have been initiated.

Delay in filing FIR

Vijay Singh v. St. of Bihar- There was a delay of 72 hours in filing of the FIR. The Court said
that there should be a reason which is given for the delay in filing the FIR.
St of Himachal Pradesh v. Shrikant Shekharia- In a rape case, 6 months delay in filing of an FIR
was justified considering the social conditions which are prevalent in Indian society and the
stigma associated with admitting to having been a victim of rape.
(As regards the evidentiary value of the FIR, just by virtue of its not being barred by limitation
does not affect the admissibility, but it affects the reliability. It is possible that by the time that the
FIR is actually recorded, external factors may have acted upon the minds of the persons who are
giving the information to the police.)
Therefore, an FIR should be recorded at the earliest time possible, and a delay, if any, should be
explained. However, there cannot be any hard and fast rule of setting a time limit for filing of an
FIR as for different crimes, the time required may be different.
Search:
General guideline for search: s. 100.
Search without warrant: s. 165.
Search outside jurisdiction: s.___

Statement recorded by the police during investigation: s. 161.

Under s. 161(2), there is no obligation to answer questions which exposes the person asked to
answer them to criminal liability.
S. 162 provides that no signature is required on a statement obtained by the police under s.
161.This provision, however, does give the witness to back-track in court. The Malimath
Committee has suggested that digital video-cameras should be used to record the statements of
the witnesses u/s. 161 as these recordings will fall under the meaning of the word ‘document’
under the Indian Evidence Act. The SC has also recognised such recordings as valid in several
cases.

Who are the police?

Persons who are declared to be the police under the police Act, 1961 are police. Customs
authorities and the Railway Protection Force are not police. S. 25, 26 of the Indian Evidence Act,
1872 says that after arrest, no confession before the police is valid. However, this means that the
Customs and RPF authorities can record confessions.

Statement recorded by the Magistrate: s. 164.

This is done on the performance of judicial functions.
A retracted confession under this section can later be used as evidence.

A Magistrate cannot be compelled to give evidence about the discharge of official duties.
However, if he is a witness to an offence, he may be compelled to give evidence.

Any confession made before arrest is admissible. A confession made after arrest is not admissible
unless it is made in the presence of a Magistrate.

Kathi Kalu v. State of Maharashtra

This case finally settles the dispute on taking of samples against the will of the accused. There
has been a distinction which has been drawn between what has been said out of personal
knowledge and what is found from the body. Those things which have been said to have been
taken from a person’s body cannot be said to have been obtained from personal knowledge.
Therefore, only those things which have been obtained from the personal knowledge are granted
protection u/A 20(3).
Babu Singh v. Pujab (1963) 3 SCR 749
Before recording confession, the Magistrate must satisfy himself that the accused person’s mind
is free from the influence of police custody. Atleast 24 hours need to pass before his statement is
recorded. (This may however, turn out to be counter-productive, because if the accused refuses to
confess, the magistrate cannot remand him to police custody.)

S. 300 of the CrPC incorporates the Double Jeopardy principle.

V.S. Kuttan Pillai v. Ramkrishna 1980 SCC (Cr) 226

A passive submission to search cannot be considered to be compelled, and it cannot amount to
being self-incriminatory.

Case Diary:
The officer investigating a particular case must record all actions taken with respect to a
particular case. After the charge-sheet is submitted, the case diary is to be given to the
prosecution. The accused cannot get copy of the case diary, but a copy of all the other documents
which are to be used against him must be provided to him free of cost. The accused does not
have a right to obtain the case diary as it is a part of the private function of the police.

General Diary:
A diary where allegations made by person appearing in a police station are recorded. All day-to-
day functions of the police station are to be recorded in the General Diary. This diary is to remain
in the police station at all times.

The Police report should contain all the relevant evidence collected during investigation. Eg.
Statements recorded u/s. 161, search & seizure list, forensic reports, medical reports etc.
A copy of the chargesheet must be given to the accused free of charge. (s. 207)

Inquest:
Can be conducted by:
 Police-O/C; any other police officer specially empowered by the State government.
 District, Sub-divisional or other Executive Magistrate so specially empowered-
 JM/MM (vide 2005 amendment)- When a person dies or disappears or a woman is raped
in custody.

Prosecutors:
s. 24
May appear in Sessions Court or HC. They may also appear in a magistrates court if so required.
Public Prosecutor (PP)
Additional PP
Special PP

s. 25
Assistant PP- May appear in Magistrates court only. They cannot appear before a Sessions Court
or HC. They are salaried.
Prosecutors are appointed by the state government or the central government depending on the
nature of the offence which is to be tried. Earlier, there was a system of police prosecutors, but it
was seen that at times, they were biased. However, they may work more efficiently at times. In
places where this system still exists, (eg.- Kolkata) they are, by government notification
empowered by act as Assistant PP in a court-room. Outside the courtroom, they are under the
control of the Commissioner of Police. Police prosecutors are not the police.
In Maharashtra, S.B.Shahane v. State of Maharashtra, said that if police prosecutors remain
within the control of the police, then they will be biased. Therefore, the police prosecutors were
merged with the Assistant PP cadre of Maharashtra. However, this judgment is said to apply only
to Maharashtra, and therefore, the system of police prosecutors still exists in some other places
like Kolkata.

Role of Prosecutors:
 The duty of prosecutors is to conduct trial, not necessarily secure conviction. S. 225 talks
of trial before a Court of Sessions which must be opened by a PP.
 A prosecutor must share evidence with the other party.
 A prosecutor has the power to withdraw prosecution with the consent of the court. (s.
321).
 Bail applications before trial.
 Appeal
 Application to cancel probation
 In some specific circumstances, the PP may have to file a complaint u/s. 199 before a
Court of Sessions directly for it to take cognizance.

Mukul Dalal v. UoI

Cost of appointing SPP borne by the victim. SC disallowed it stating that the appointment of the
SPP was the prerogative of the State and it is at the discretion of the Centre/State government.
The victim cannot specify who is to be appointed as the SPP. The appointment of the SPP should
not be on the consideration of the payment of fees by the victim & state should bear the cost.

Withdrawal of Prosecution:
Abdul Karim v. State of Karnataka (Veerappan Case)
Public prosecutor should act only after satisfying himself about the need for withdrawal of
prosecution. They should not simply follow the directions of the State government. The judge,
before allowing the prosecution to be withdrawn, must satisfy himself that:
1. There is an application of mind by the PP.
2. Withdrawal of prosecution is in public interest.

Shiv Nandan Paswan v.State of Bihar

Allegation against the Bihar CM Jagganath Mishra of corruption. Prosectuion withdrawn when h
came to power. HC set aside the withdrawal of the prosecution. SC held that the withdrawal was
in public interest.

Shreelekha Vidyarthi v. UP {Case discussed in Constitutional Law-I as well}

Can a PP be removed at the whims and fancies of the State Government?
Mulayam Singh government came to power for the first time in UP. It dismissed all the legal
officers appointed by the previous government. The High Court dismissed the petition by
Shreelekha Vidyarthi, a prosecutor who stood dismissed by stating that it was a professional
appointment and the client could change his counsel at any point of time. The Supreme Court
however, said that this was arbitrary as a change in the government could not mean that all the
officials could be changed. SC drew a distinction between appointment of an advocate by a
private person and appointment by the state. A PP and an Addl. PP cannot take up criminal cases
against the state. A panel of PPs and SPPs can argue against the state provided that they are not
arguing any matter for the state. No conflict of interest should take place. Advocates on retainer
by the state also, cannot take up cases against the state. A PP cannot be removed at the sweet will
of the Government.
M.P. Jain- Even in contractual matters, public authorities have to act fairly and if they fail to do
so, approach to Article 226 would always be permissible because that would amount to violation
of Article 14 of the Constitution.

S. 25A-Directorate of Prosecution- To co-ordinate between prosecuting and investigating agency.

Generally, a lack of co-ordination between the investigating and prosecuting agencies os one of
the main reasons for the low conviction rates in India. Section 25A empowers the State
Government to establish the Directorate of Prosecution. The Director of Prosecution shall
function under the administrative control of the Head of the Home Department in the State.

Sarla v. Vellu (2000) 4 SCC 459.

The duty of the Prosecutor is to assist the court in conducting trial and not to secure conviction of
the accused. Collusion of police and prosecution is not only unlawful but it is also pernicious.
Prosecution should collude & be friends of the court.

Process to Compel the Appearance of Persons and Production of Things Before the Court.
Appearance of Persons:
1. Summons- For offences in which the imprisonment is less than 2 years.
2. Warrant- For offences which have imprisonment of 2 years or above. Court may direct
the execution of warrant to the police, but in some circumstance, it may direct any private
person to execute it. A warrant is always issued by a magistrate. Police only execute a
warrant.
3. Proclamation (s. 82)
4. Attachment of property

For witnesses, summons and warrant can be issued. Proclamation cannot be issued, but the court
may attach the property of a witness.

A warrant may be bailable or non-bailable. The CrPC does not talk about this, but rather only
about conditions which can be imposed for issuing warrant.

Confession may be judicial or extra-judicial.

State of Maharashtra v. Tapas Neogi

Acused was a town planner for Daman. The zoning determined the price of the property in
Daman. He manipulated the map so as to benefit certain person. A search and seizure of his
property was ordered by the court. This property included a bank locker and account. HC said
that the locker and its contents were not ‘property’, but the bank account was. Neogi appealed to
the SC saying that the bank account was not ‘property’ and since it was a joint account with his
mother, she should be allowed to operate it. SC held that the account was property for the
purposes of search & seizure.

Evidence which is obtained through illegal search is admissible, but its value reduces. Even then
this evidence is to be appreciated by the court after taking into account he practical difficulties
encountered by persons carrying out search and seizure operations.

Initiation of proceedings:
Proceedings start when the court takes cognizance of an offence under s. 190. If a complaint is
filed, then under s. 200.
Before taking cognizance, the magistrate may examine complainant, question the witnesses,
direct the police or any other person to investigate. If the Magistrate is satisfied, then cognizance
shall be taken.
Subsequent to the Magistrate taking cognizance, summons shall be issued to the accused.
Cognizance on police report U/s. 173
Suo motu Cognizance/ Cognizance on personal knowledge.
A JMFC can take cognizance. JMSC can take cognizance only when specially empowered by the
CJM u/s.190(2).

Cf. CREF Finance v. Shri Shanti Homes Pvt. Ltd.

Cheque issued, stop payment ordered. Dishonour of cheque is a non-cognizable offence u/s. 138
of the Negotiable instruments Act.

For special laws, Schedule I Part II differentiates between bailable/non-bailable and

cognizable/non-cognizable offences on the basis of the punishment specified if the special law is
silent on the nature of the offence.

Cognizance means ‘become aware of’ and is used in relation to judicial authorities.
No formalities are required for cognizance of an offence to be taken.
Limitation period will apply from the time when the complaint is filed or the FIR is recorded.

It is the discretion of the court whether or not to accept the police report. The cort can direct
further investigation u/s 173(8).
If the accused is to be discharged, the victims must be informed. The victim can file a protest or
‘narazi’ petition against the discharge of the accused. The court may accept this protest petitionas
a compliant and may take action based upon it.
Cf. Kuli Singh v. Bihar AIR 1978 Pat 298
Panchan Singh v. UP (1988) 2 Crimes 248 (All)

Ss. 195-199- Limitations on the power of the court to take cognizance.

Whenever a case is committed or transferred to another court, the new court must take
cognizance afresh u/s 190.
s. 199(2) is the only section which empowers the Court of Sessions directly to take cognizance of
a case which comes up before it.
The Court of Sessions may ‘make over’ the case to Addl. or Asst. Sessions Judge.
s. 195 states that only a public servant whose command is being disobeyed can file a compliant
before the magistrate.
ss. 196, 197 requires the sanction of the sanction of the government to prosecute the accused.
However, that does not impose a bar upon police to register an FIR or commence investigation.
S. 482 of the CrPC saves the inherent power of the High Court to do what it thinks would best
secure the ends of justice and prevent an abuse of the process of any Court.

Charge:
The court is not bound to accept a charge. No person shall be tried except for that which a person
is charged.
The reports, evidence, submissions by the prosecuting agency forms the basis for the charge.
A mistake unless it is material shall not affect the charge.
s. 216- the court can change any charge at any time before the pronouncement of the judgment
after explaining to the accused the effect of such alteration of the charge.

State of Orissa v. DN Padhi

What are the main considerations while the court is framing charges? What are the rights f the
accused during such time, especially as regards the production of witnesses by means of a
warrant?

s. 218- Clubbing together of charges

s. 223- Clubbing together of charges against different persons.

State of Maharashtra v. Salman Salim Khan. 2004 Cr LJ 920 (SC)

Charged u/s 304A. Court was of the opinion that the case was under s. 302. This was later
challenged before the SC. (Just an example that the court has the power to alter the charges
before delivering the judgment.)

Maintenance of Public Order and Tranquility

Order of Executive Magistrate(EM) is not a judgment. He can arrest but not convict or acquit. He
may file a compliant before a JM for this purpose. This is because, an EM cannot take
cognizance.
Armed forces can be summoned by the highest ranking EM present u/s 130.
The armed forces cannot have total discretion. They are under the guidance of the EM and may
use as little force as possible.
s. 131- Commission or gazette officer of the Armed Forces may take action on his own when it is
not possible to communicate with the EM. However, whenever practical, the EM is to be
informed. Thereafter the operation is to be under the direction and command of the EM.
s. 132- Protection to such persons acting u/ss. 129, 130, 131 against criminal sanctions when
acting in good faith. Sanction of Central Government required to prosecute when the person
(being an officer or otherwise) belongs to the armed forces. Otherwise, for other forces, the
sanction of the State Government is required for initiating prosecution.
Orders against unlawful or potentially unlawful assembly. In a Commisionerate, s. 20(5)
empowers the Commissioner to act as the EM. Violation of orders under this chapter is an
offence u/ s. 188 of the IPC. However, even on a violation of an order under s. 144, a person
cannot be killed.

Power provided to executive authorities under the CrPC.

 Provisions for dispersing unlawful assembly- ss. 129-132.
 Provisions for prevention of public nuisance- ss. 133-143.
  Urgent cases of nuisance and apprehended danger- ss. 144- 144A.
 Disputes as to immovable property which is likely to cause a breach of peace- ss. 145-
148.

Dispersal of Unlawful Assembly using civil force or the help of any male member of the public.
s. 129. Unlawful assembly defined under s.141 of the IPC.
Any person who violates such an order, may be detained or arrested.
When, use of force allegedly exceeds its authority and excessive force is used to disperse
unlawful assemblies.
s.196-197- Magistrate cannot take cognizance against public servants without sanction form the
government.

If there is a question as to the determination of a public right and the party against whom the
allegation is made appears before him, the executive magistrate is not competent to decide upon
this question and he shall refer the matter to the court of competent jurisdiction.

The cost of executing the order of the executive magistrate may be recovered from the person
against whom the order is passed and the CrPC under s. 141 has given a wide power to the
executive magistrate.

Commissioner of Police vide s. 20(5) has the power of an executive magistrate as in metropolitan
areas, there is no system of executive magistrates as in the districts.

Each serving officer would have an Annual Confidential Report (ACR) which would be written
by his senior. This report affects the promotions, retirement etc. For a SP of police in the district,
the District Magistrate writes the ACR, not the DIG of police.
In the Commissionerate system the Police Commissioner’s ACR is written by the ________ .

Commissioner of Police, Calcutta v. Acharya Jagdish …. (Ananda Margi case)

SC held that the restriction placed on the performance of the tandava dance was opposed to
public morality, decency etc. Case was started under s. 144 CrPC.

If in case of a non-cognizable offence, the affected person can obtain an order under s. 144 CrPC
which could direct the police to arrest a person if the accused breaches the order so passed by the
executive magistrate.

s. 145-148- Ownership is irrelevant for the executive magistrate for passing an order as long as
the actual possession is proven. This is to prevent a breach of peace over property-related
matters. Claims as to ownership are to be determined by civil courts, not the executive
magistrates.
A person who was in possession of the property and his possession has been disturbed, the
executive magistrate may order that the possession be restored.
Receiver may be appointed as if he were appointed under the Code of Civil Procedure with the
same powers, or that the property be attached by the executive magistrate under s. 146.
s. 148 empowers the Executive Magistrate to conduct a local enquiry or to direct his subordinate
to do the same and suc report will be treated as evidence in a court of law.

Security for keeping the Peace and Good Behaviour:

ss. 107, 109- Important sections
Power of police to arrest as a preventive measure- s. 109 misused by the police.

First case to lay down that order passed by a Magistrate under s. 144 it is an executive function.
ss. 133, 145 etc.- Judicial function s. 129, 130, Inquest (no application of judicial mind for
determination of the case), Arrest etc.- Executive function
Gulam Abbas v. St of UP
The entire basis of action under Section 144 is provided by the urgency of the situation and the
power thereunder is intended to be availed of for preventing disorders, obstructions and
annoyances with a view to secure the public weal by maintaining public peace and tranquility
which is the primary function of the Government and the aforesaid power is conferred on the
executive magistracy enabling it to perform that function effectively during emergent situations.
It would not be proper exercise of discretion on the part of the Executive Magistrate to interfere
with the lawful exercise of the right by a party on a consideration that those who threaten to
interfere constitute a large majority and it would be more convenient for the administration to
impose restrictions which would affect only a minor section of the community rather than
prevent a large section more vociferous and militant.

Appeal, Reference & Revisions

Appeal- Appeal can be filed against acquittal. Revision cannot convert an acquittal into a
conviction as per s. 401(4) by the High Court. Punishment is for seven years or below, appeal
lies to the Session Court. Any punishment above the period of seven years lies with the High
Court.
No appeal when plea is of guilty
No appeal in petty cases
State government may appeal when the punishment appears to be inadequate. Appeal may be
filed for the extension of the punishment.
A DM may ask the PP to file a appeal against an acquittal, otherwise, Central Government if the
investigating agency is the CBI etc.
s. 389 empowers the court hearing the appeal to release the accused on bail while an appeal is
pending before it.

Article 136 gives power to the SC to hear appeals from any judgment, decree, order etc. from
any court or tribunal in India. This however is not an appeal within the meaning of the CrPC, but
rather is a constitutional right.

Reference- Lower court may itself ask for a reference to a higher court on a point of law.

Revision- s. 397- Scope of revision is much wider than that of appeal.

s. 401 the High Court has the discretion to exercise any powers which may be exercised by a
lower court or a court of sessions.

Summary Trial:
Not more than 3 months imprisonment
(See Slides for further details.)

Sessions Trial:
1. Cognizance
-Cognizance taken u/s 190(1)(a) on complaint
-Cognizance taken u/s 190(1)(b) u/s 173 on police report
2. Charge: Consideration/Framing of charge (This stage sets the course of the trial).
-Court is at liberty to frame charges and is not bound by charges framed by the police.
- Plea: To ascertain whether accused pleads guilty to the charge.
(If the accused pleads not guilty then the stages as given below follow.)
3. Evidence of Prosecution Witnesses
-Examination-in-chief
-Cross-examination
-Re-examination
4. S. 313- Examination of the accused. Accused not bond to make statement. No oath to be
administered. It cannot be used as evidence. No prosecution for refusing to answer the
questions.The accused is a ‘privileged liar’.
5. Evidence of Defense witnesses, if any.
6. Arguments by both sides
7. Judgment- Acquittal or conviction

After the Judgment has been delivered, and if the accused is convicted of the offences: (The
following is the process which is followed in most types of trials with some minor
modifications.)
1. S. 428- Setting off the time already served.(pplicable to all trials)
 Jail Warrant- The convicting judge signs it, writes charges of which the accused is
found guilty, period set-off.
2. S. 360- Probation of offender rather than sentence of imprisonment.(Generally not for
cases tried by a Court of Sessions).
s. 361- Reason why s. 360 not used in needs to be explained by the judge.
3. s. 389- Suspension of sentence pending appeal, bail to be granted. Same court can hear
bail application for an offence for which the imprisonment is less than 3 years.
Otherwise, a higher court to which an appeal lies shall hear the application for bail.
4. Appeal: U/s. 374, the Sessions Court can hear an appeal for a sentence of imprisonment
upto 7 years. An appeal to any sentence more than that shall be heard by the High Court.

Warrant Case:
There are 2 types of warrant trials which shall be discussed as A & B respectively:
A. Instituted on Police Report
1. Cognizance- s. 190(1)(b)
2. Charge
3. Evidence of PW
4. Accused questioned by judge u/s 313.
5. Evidence of DW, if any.
6. Judgment
B. Instituted otherwise than on police report:
1. Cognizance
2. Evidence of PW
3. Charge (After appreciation of PW evidence)
4. Cross Examination after charge. (An unrebutted charge can lead to conviction of
the accused.)
5. Evidence of DW, if any.
6. Judgment

After the Judgment has been delivered:

1. S. 428- Setting off the time already served.
Jail Warrant- The convicting judge signs it, writes charges of which the accused is
found guilty, period set-off.
2. S. 360- Probation of offeneder rather than sentence of imprisonment.
s. 361- Reason why s. 360 not used in needs to be explained by the judge.
3. s. 389- Suspension of sentence pending appeal, bail to be granted. Same court can hear
bail application for an offence for which the imprisonment is less than 3 years.
Otherwise, a higher court to which an appeal lies shall hear the application for bail.
4. Appeal to appropriate court.
Summons Trial
1. No need for a cognizable offence
2. S. 251 Substance of accusation to be stated.
3. Evidence of PW
4. Accused questioned by judge u/s 313.
5. Evidence of DW, if any.
6. Judgment

Acquittal- After charges framed

Discharge- Before framing charges

In criminal procedure, generally, there is no bar on the number of applications which can be
filed. Generally, there has to a change in the circumstances for another application to be
considered.

Where an investigation is made by the police, copies of the police report and other records are to
be given to the accused free of charge u/s 207. For cases which are other than on police report
and not triable by a Court of sessions, s. 208 applies. For those cases triable by a Court of
Sessions, s. 209 applies.
Bail u/s 436 can be granted either by the court or by the polie officer. Of bail s cancelled, then
the new bal may be granted only by the court.

Bail upon appeal:

Convict appeals, the judgment must be available.
Revision application

s. 445- Deposit instead of recognizance. Not allowed in the case of Charles Shobraj as he had
jumped bail earlier.

Who can grant bail:

s. 36 Any olice officer whose rank is higher than that of the O/C of a police station has all the
powers of the O/C of that area. Therefore, such officer may grnt bail u/ss. 436, 437.
s. 436- police, Magistrate- Bailable offences
s. 436A- Court before whom the case is pending.
s. 437- Court other than the HC/Sessions court. Police can grant bail, but some restrictions laid
down.- Non-bailable offences.
s. 438- HC/ Sessions court may grant anticipatory bail. This is a pre-arrest process- For non-
bailable offences only. In the event of a person’s arrest, the person shall be released even despite
a non-bailable arrest warrant.
s. 439- Cancellation of bail granted by any court lower that itself can be done by HC/Sessions
court.

If bail granted for a bailable offence, by a Magistrate, the bail cannot be cancelled by the
magistrate. HC/Sessions court must be approached for the cancellation of bail.
For a nn-bailable offence, s. 437(5) provides that where a magistrate has granted bail, he has the
power to cancel bail as well.
s. 439(2) empowers the HC/Sessions Court to cancel the bail granted by any court.
s. 438- Blanket anticipatory bail not given, charges must be specified.
Gurbaksh Singh v. St of Punjab- Whether s. 437 can be read with s. 438.

Victims Rights:
1. Fair Trial
2. Right to privacy
3. Right to set criminal law in motion
4. Legal Aid- s. 304- Legal Aid for accused in sessions trial. S. 304(3) makes provisions to
extend it to other trials also, but there have been no amendments by the states. There now
exists the Legal Services Authorities Act, 1987 which came into force on 9th November
1995.
5. Right to testify
6. Right to protection
7. Right to reparation
i) Compensation
ii) Rehabilitation
8. Participation in the process
9. Right to appeal against- Unfair trial, acquittal, quantum of punishment.
10. Participating in the bail proceedings.
11. Counselling
12. Speedy trial- s. 309.

Reparation: Human right aspect:

 Restitution- ss.451, 457- Court may order restitution of money, property seized.
 Compensation-Where restitution is not possible, (eg. Property is not recovered, or not
recoverable) s. 357.
 Satisfaction
 Rehabilitation- No proper provision in the CrPC apart from bail.
No means for protection of the victims under the CrPC.
 Eg. In Chandrima Das v. Railway Board
The court awarded compensation u/A 21 and not under the CrPC provisions.
Saheli Case- In order to evict a tenants, the landlord hired the police to evict them. A
child died during the eviction. Compensation given by the SC from the Provident Fund of
the police involved in the operation, but not from the government.

s. 357(3) Sarwar Singh v. Punjab (1978) 4 SCC 111: Murder- Rs. 40,000 Compensation.

K Bhaskaran v. Sankaran JT 1999 (7) SC 558- s. 138 of The Negotiable Instruments Act
provides for 2 years imprisonment or a fine which can extend to twice the amount of the
cheque.

R. Rathinam v. State 2000 (Cr) 227

Any person may file an application for the cancellation of bail. The locus standi of
cancellation of bail expanded by this case.

S.439(2)- HC/Sessions court may cancel bail. Victim can also apply for this. These courts
can cancel bail granted by any court lower than them.
s. 437(5)- magistrate may cancel bail given by him.

Bhagwant singh v. Commr. Of Police 1985 SCC (Cr) 267.

Victims rights after the submission of final report by the police.
-Victim to be informed on the submission of the final report of the police.
-Victim may submit protest petition (narazi petition) against the final report. This may be
accepted by the court as a complaint.

154- FIR
154(3)- Approaching SP whenthe O/C refuses to record the FIR.
200- Complaint to Magistrate
36- SP to have powers of the O/C
190(3)- Suo motu action by magistrate if he sees a crime being committed
156(3)- Magistrate may direct police t investigate u/s 190.

Joginder Nayak v. St of Orissa

If victim asks for his statement to be recorder, it must be recorded by the police.

Compensation s. 357- The amount of compensation is limited to the amount of fine specified
when such an amount of fine is specified.
However, it is payable at the end of the trial.

Interim Compensation u/s 357

Bodhistawa Gautam v. Shubhra Chakraborty
However, this petition was only for quashing. Te court awarded Rs. 1500 p/month s
compensation. Nothing was said bout what will happen when an rder of acquittal os passed
agains the accused.
Compensation on acquittal- Even if prosecution fails to prove the accused’s involvement beyond
reasonable doubt, it does not meant that the accused is innocent.

Victim Trust Fund- It has been proposed that a fund be set up using the proceeds of the sale of
attached property and fines collected to form a trust fund out of which victims can be
compensated.

Transfer of Cases:
CrPC recognises the rights of the accused & the State to transfer cases frm one jurisdiction to
another. Zaheera Sheikh’s case, is the precedent set by the SC with respect to the right of the
victim to ask for the transfer of cases.