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I WORKSHOP – 2017-18

TOPIC – 7
CRIMINAL MISCELLANEOUS PETITIONS
S.No. Name & Designation of the Officer Page Number
Sri N.Ramesh Babu,
1. VIII Addl. District Judge, 1-9
Vijayawada
Sri B.Papi Reddy,
2 XVI Addl. District Judge, 10-17
Nandigama.
Sri P. Govardhan,
3 II Additional Senior Civil Judge 18-19
Vijayawada
Smt. U.Indira Priya Darshini,
4 IV Addl. Chief Metropolitan Magistrate, 20-33
Vijayawada
Sri Kumar Vivek,
5 Senior Civil Judge, 34-47
Nandigama.
Smt. N.Anitha Reddy,
6 IV Addl. Junior Civil Judge, 48-50
Vijayawada
Smt. B.M.R. Prasanna Latha,
7 Addl. Junior Civil Judge, 51-56
Tiruvuru
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CRIMINAL MISCELLANEOUS PETITIONS


Paper Presented by

Sri N.Ramesh Babu,


VIII Addl. District Judge,
Vijayawada.

1. There is no definition for the “criminal miscellaneous petition” either in


Code of Criminal procedure 1973 or in any other law. According to Oxford
Dictionary meaning of Miscellaneous is consisting of mixture of various things
that are not usually connected with each other. The meaning of the Criminal
miscellaneous petition in general cull out from dictionary and in practice is “ A
formal expression of request submitted by way of an application before the
criminal court in or otherwise in the criminal proceedings on different kinds of
reliefs for some privilege, right, benefit, or for an action ”.
2. Therefore a petition can be defined as a written application from a person
or persons to some governing body or public official asking that some authority
be exercised to grant relief, favours, or privileges. If such relief is sought before
the criminal court, it shall be called a miscellaneous petition. In broader sense,
a miscellaneous petition is nothing but a relief sought from the court by the
parties.
3. Dealing with the Criminal Miscellaneous Petitions is one of the important
tasks of the Magistrate/Judge in the Criminal Court. The filing of Criminal
Miscellaneous Petition will start even before registering the case by way of
anticipatory bail application. The criminal miscellaneous petition may be filed
even at the inception of a criminal proceeding, during the criminal proceeding,
or after conclusion of the same. The courts must be cautious while dealing with
these petitions with regard to their maintainability on the point of jurisdiction
and competency.
4. The orders passed in these petitions are mostly interim in nature. Some
of the petitions are for specific purpose and specific period either interim or
final. Usually we come across the situation, where the memos are filed instead
of petitions. When a petition is filed seeking interim relief, it is registered as
Miscellaneous petition. A Memo filed before the Court of Law need not be
treated as a Petition. The main difference between Petition and Memo is that
the purpose of filing Memo is nothing but bringing a fact to the notice of a
Court of Law and no relief can be sought for in a Memo and notice to the
opposite party is not mandatory but for knowledge sake, it can be given.
However, where a Petition is filed seeking some relief from the court, a notice to
opposite party is mandatory in most of the cases. No order need be passed on
Memo as held in between Syed Yousuf Ali Vs. Mohd. Yousuf and Others
reported in 2016 (3) ALD 235.
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5. It is difficult to determine which is an interlocutory order. There is


no hard and fast rule in determination of the same as decided in Smt.Raminder
Kaur Bedi Vs Jatinder singh Bedi reported in (1989)1 crimes352(Delhi). For
instance an Order granting interim maintainance is an interlocutory order but
a contra view was taken in a decision in Sunil Kumar Vs Ms. Neelam
Sabharwal reported in (1991) 1 crimes 568 (D.B).
6. When a Miscellaneous Petition is filed in Criminal cases, it is
registered as Criminal Miscellaneous Petition. As soon as a Petition is filed, the
primary duty of the Court is to see whether the relief sought is provided under
Criminal Procedure Code or not. If it is provided, the Petition shall be called in
Public Court by assigning a particular Miscellaneous number and notice shall
be ordered to the opposite party. Having heard both the parties, a speaking
order has to be pronounced. In Criminal Courts, we come across several
Miscellaneous Petitions seeking different reliefs. The petitions are normally filed
U/sec.90 and 91 Cr.P.C, Sec.125(3) Cr.P.C, Sec.167 Cr.P.C, Sec.227 Cr.P.C,
Sec.239 Cr.P.C, Sec.309, Sec.311 Cr.P.C, Sec. 317 Cr.P.C, Sec.319 Cr.P.C,
Sec.321 Cr.P.C, Sec.437 Cr.P.C to Sec.439 Cr.P.C, Sec.451 Cr.P.C and Sec.457
Cr.P.C for necessary reliefs, Which are discussed in detail as mentioned below.
7. Section 91 Cr.P.C -Summons to produce document or other thing.
Section 91 with the head note Process to Compel Production of Things of
the Code of Criminal Procedure, 1973 states that:
(1) Whenever any Court or any officer in charge of a police station consider
that the production of any document or other thing is necessary or desirable
for the purpose of any investigation, inquiry, trial or other proceeding under
this code by or before such court or officer, such court may issue a summons,
or such officer a written order, to the person in whose possession or power
such document or thing is believed to be, requiring him to attend and produce
it, or to produce it, at the time and place stated in the summons or order.

(2) Any person required under this section merely to produce a document
or other thing shall be deemed to have complied with the requisition if he
causes such document or thing to be produced instead of attending personally
to produce the same.
8. Sometimes the counsel for the defence may file Petition u/sec.91 Cr.P.C
to summon the documents at the time of framing charges. But at that stage, it
is to be kept in mind that the Court has to examine the material which is
produced by the prosecution and it cannot summon any document at the
instance of the accused. This preposition of law is laid down by Hon‟ble
Supreme Court of India in a case reported in AIR 2005 SC 359 between State of
Orissa Vs. Debendra Nath Padhi.
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9. Section 125( 3) Cr.P.C.


In Judicial Magistrate of First Class Courts and Family Courts, Criminal
Miscellaneous Petitions are filed during the pendency of main proceedings for
issuing warrant against the husband to send him to prison for breach of the
order of maintenance or interim maintenance U/sec.125 (3)of Cr.P.C. If the
husband is a salaried employee, court can pass orders that the future salary of
husband can be attached as held by Hon‟ble High Court of Madras in a
between Mani Vs. Jaya Kumar reported in 1998 Crl.L.J., 3708.

10. Section 167 (2) Cr.P.C


The Hon'ble Supreme Court of India in Pragyna Singh Thakur vs. State of
Maharashtra reported in (2011) 10 SCC 445 after considering the provision of
sec.167(2)of the Cr.P.C. and the case laws on the subject, it was held as
under:
“The right under Section 167(2)of Cr.P.C. to be released on bail on
default if charge sheet is not filed within 90 days or 60 days as the case may be
from the date of first remand is not an absolute or indefeasible right. The said
right would be lost if charge sheet is filed and would not survive after filing of
the charge sheet. In other words, even if an application for bail is filed on the
ground that charge sheet was not filed within 90 days or 60 days, but before
the consideration of the same and before being released on bail, if charge sheet
is filed, the said right to be released on bail would be lost. After filing of the
charge sheet, if the accused is to be released on bail, it can be only on merits.
This is quite evident from Constitution Bench decision of Hon‟ble Supreme
Court in Sanjay Dutt vs. State reported in (1994) 5 SCC 410

11. Section 239 Cr.P.C and Sec.227 Cr.P.C


A petition for discharge of an accused in a criminal case before the court
of a magistrate can be filed under Section 239 Cr.P.C and if it is before the
court of Sessions it shall be filed U/s.227 Cr.P.C.
When accused shall be discharged: If, upon considering the police report and
the documents sent with it under section 173 and making such examination, if
any, of the accused as the Magistrate thinks necessary and after giving the
prosecution and the accused an opportunity of being heard, the Magistrate
considers the charge against the accused to be groundless, he shall discharge
the accused, and record his reasons for so doing.
12. So, when a Petition is filed under section 239 of Cr.P.C in Magistrate‟s
Court and under section 227 Cr.P.Cin Sessions Court seeking discharge of
the accused from the Warrant case or Sessions case, before allowing that
petition, the Court has to see whether there is any prima facie case appearing
against the accused. The court shall scrutinise the evidence in order to find out
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whether or not allegations made are groundless so as to order discharge. The


Court is not expected to go deep into the matter and hold that the material
would not warrant a conviction. What needs to be considered is whether there
is ground for presumption that offence has been committed or not and whether
ground for convicting the accused has been made out of it as held in State of
Tamilnadu by Inspector of Police, Anticorruption Vs. Suraj Rajan and others
reported in 2014 (3) SCC (Crl ) 529. When a Petition is filed before Judicial
Magistrate of First Class Court seeking discharge of the accused in a case
exclusively triable by the Court of Sessions, the Court cannot discharge the
accused in view of the decision held in between Sanjay Gandhi Vs. Union of
India reported in AIR 1978 (SC) 514.
13. A Criminal Miscellaneous petition for discharge of accused in summons
case is not at all maintainable as held by the Hon‟ble Apex Court in a case
between Adalat Prasad Vs. Rooplal Jindal reported in AIR 2004 SC 4674
Because there is no question of discharge in summons case. Discharge in
summons case amounts to recall of summons, which is not permissible under
law.
14. When a petition is filed seeking for discharge of the accused, the court
cannot look into the documents produced by the accused vide decision in Hem
Chand Vs State of Jharkhand reported in AIR 2008 SC 19.
15. Sec. 310 Cr.P.C- Local Inspection :
Sometimes, the counsel for the defence file Petitions under section 310
Cr.P.C praying the Court to make local inspection. But it is not at all desirable
for the court to do so as held in a decision between Maleedu Venkanna Vs.
State of AndhraPradesh reported in 2003(1) ALD (Crl.) 117 where as our
Hon‟ble High Court held that Local Inspection by Presiding Officer is not at all
a step in Criminal proceedings in normal parlance.
16. Section 311 Cr.P.C -Power to summon material witness, or examine
person present.
Any Court may, at any stage of any inquiry, trial or other proceeding
under this Code, summon any person as a witness, or examine any person in
attendance, though not summoned as a witness, or. recall and re-examine any
person already examined; and the Court shall summon and examine or recall
and re-examine any such person if his evidence appears to it to be essential to
the just decision of the case.
17. In Iddar & Ors. vs. Aabida & Anr. reported in AIR 2007 SC 3029,the
object underlying under Section 311Cr.P.C., has been stated that there may
not be failure of justice on account of mistake of either party in bringing the
valuable evidence on record or leaving ambiguity in the statements of the
witnesses examined from either side. The determinative factor is whether it is
essential to the just decision of the case. The section is not limited only for the
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benefit of the accused, and it will not be an improper exercise of the powers of
the court to summon a witness under the section merely because the evidence
supports the case for the prosecution and not that of the accused. The section
is a general section which applies to all proceedings, enquiries and trials under
the Code and empowers Magistrate to issue summons to any witness at any
stage of such proceedings, trial or enquiry. In Section 311 the
significantexpression that occurs is „at any stage of inquiry or trial or other
proceeding under this Code‟. It is, however, to be borne in mind that whereas
the section confers a very wide power on the court on summoning witnesses,
the discretion conferred is to be exercised judiciously, as the wider the power
the greater is the necessity for application of judicial mind.
18. Generally we come across with petitions under section 311 Cr.P.C.,
praying the court to recall the witnesses who were already examined. The court
has to see whether recall of witness is necessary to come to just conclusion,
the same was held in a case between Rama Paswan and others Vs. State of
Jharkand reported in 2007 (2) ALD SC 494.

19. Section 205 Cr.P.C and Section 317 Cr.P.C:


Provision for inquiries and trial being held in the absence of accused in
certain cases:
Section 317 Cr.P.C lays down the procedure for inquiries and trials
beingconducted in the absence of accused in certain cases. The section enables
the Court to dispense with the personal attendance of the accused and proceed
with the inquiry or trial in his absence.
Section 205 which provides that when a Magistrate issues summons, he
may dispense with the personal attendance of the accused and permit him to
appear by a pleader. The general rule is that all inquiries and trials should be
conducted in the presence of the accused. Therefore, this section provides an
exception to this general rule. Sub-Section (2) provides for the case of an
accused who is not represented by a pleader but whose continued personal
presence or attendance may be necessary. In such a case the Court may either
adjourn the trial of all the accused or order the particular absenting accused to
be tried separately. In either case, i.e., sub-section (1) or(2) the Court shall
record reasons in writing for its decision in this regard.
In Baskar Industries Ltd. v. Bhiwani Denim & Apprals Ltd Criminal
Revision No. 1203 of 2009. decided on Wednesday, April 10, 2013., the
Hon‟ble Supreme Court held that in certain cases the Magistrate may exempt
the accused even from the first personal attendance and permit him to be
represented by his Counsel and record the Counsel‟s evidence as the evidence
given by the accused. Section 317 permits the Magistrate to exempt the
accused from personal appearance before the Court provided he is being
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represented by his defence Counsel and the latter is appearing before the Court
on behalf of the accused.

20. Section 319 Cr.P.C.


Under this Section, the court is having the undoubted authority
toproceed against persons who are not arrayed as accused. The power Under
this section could be exercised by the court suo motu or on an application by
any one including the accused standing trial before the court. Therefore, even
the accused can apply Under Section 319 (1) Cr.P.C.to take cognizance against
the other persons not charge sheeted by the police, though they were equally
involved in the offence. While the court is exercising the jurisdiction Under
Section 319 Cr.P.C the findings of exoneration recorded by the investigating
agency cannot be given precedents over the finding recorded by a judicial court
on the basis of contents of complaint, first information report and also
substantive testimony of the complainant during trial who with stood the cross
examination.
21. The scope of Section 319 Cr.P.C is clearly explained inJabardin Khan v.
State of U.P. Criminal Misc. Writ Petition No. –8865 of 2014, Decided on May
23, 2014 that just on the basis of evidence adduced before it, if it appears to
the Court that a person against whom no charge has been framed but his
complicity makes it clear that he should be tried along with the other accused
then as per S.319 of Cr.P.C., the Court can invoke it‟s power to try such
person. Further, it was held that as per S. 319(4)(b) Cr.P.C., the accused,
subsequently impleaded, is to be treated as if he had been an accused when
the Court initially took cognizance of the offence and that the degree of
satisfaction that will be required for summoning a person under Section 319
Cr.P.C. would be the same as for framing a charge. The Court also held that
under the said provision Trial Court is not required to wait for cross-
examination as it can take action on the basis of statement made by the
concerned examination-in-chief. Jabardin Khan v. State of U.P. Criminal Misc.
Writ Petition No. –8865 of 2014,decided on May 23, 2014.
22. Further in one of the decisions under SECTION 319 OF THE Cr.P.C The
Hon'ble Apex Court in VIKASVs. STATE OF RAJASTHAN reported in 2014(3)
SCC 321 held that the Section 319 of the Cr.P.C. would clearly indicate that on
the objective satisfaction of the court a person may be `arrested' or `summoned'
as the circumstances of the case may require if it appears from the evidence
that any such person not being the accused has committed an offence for
which such person could be tried together with the already arrayed as accused
persons. The court should exercise judicial discretion on a consideration of the
totality of the facts and circumstances of a given case and in a manner where
proper procedures are followed that are fundamental to the right of fair trial of
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the accused. The section demands more circumspection by the Trial Court
while exercising its powers since it confers an extraordinary power and should
be used by the court very sparingly thereby ensuring that principles of rule of
law and basic tenets of criminal law jurisprudence are not vitiated.

23. When the prosecution filed a petition u/sec.319 Cr.P.C. praying the
court to proceed against other persons other than the accused who are facing
trial, the court can allow the said petition basing on examination in chief itself.
There is no need of giving opportunity to proposed accused for cross
examination, the same was held in a case between Gangadara Nandagiri
Swamiji Vs. State of A.P reported in 2002(1) ALD 680.
24. Section 321Cr.P.C –Withdrawal from Prosecution
The section requires that where the offence falls within any of the
categories mentioned in sub-clauses (i) to (iv) of the provison, the permission of
the Central / State Government has to be obtained for moving an application
for withdrawal from the prosecution by the Public Prosecutor. However, where
the prosecution is being proceeded by a complainant on a private complaint,
the Public Prosecutor is not entitled to apply for withdrawal from prosecution
in such a case. It must be pointed out that Section 321 provides for
„withdrawal from prosecution‟ and not the „withdrawal of the prosecution. The
accused shall be discharged if the withdrawal is before the framing of a charge
and he shall be acquitted where no charge has been framed and such acquittal
shall be a bar to a re-trial under Section 300 of the Code.
25. The section 321 Cr.P.C applies to every kind of inquiry and trial as also
all cases which are capable of terminating either in a discharge or an acquittal
according to the stage at which application for withdrawal is made.
In one of the decisions, our Hon‟ble High Court in Bairam Muralidhar
Vs. State of Andhra Pradesh [Criminal Appeal No. 1587 of 2014 arising out of
S.L.P. (CRL.) 1487 of 2012] Held :
“The discretion under Section 321, Code of Criminal Procedure is to be
carefully exercised by the court having due regard to all the relevant facts and
shall not be exercised to stifle the prosecution which is being done at the
instance of the aggrieved parties or the State for redressing their grievance.
Every crime is an offence against the society and if the accused committed an
offence, society demands that he should be punished. Punishing the person
who perpetrated the crime is an essential requirement for the maintenance of
law and order and peace in the society. Therefore, the withdrawal of the
prosecution shall be permitted only when valid reasons are made out for the
same”.
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26. BAIL-Section 437 to 439 Cr.P.C


These provisions deal with the bails. So any petition filed under any of
these provisions can be numbered as a Criminal miscellaneous petition and
can be delt with according to law.

27. Section 451 and Section 457 Cr.P.C


These privisions deal with disposal of property. So any petition filed
under these provisions can be numbered as a criminal miscellaneous petition
and can be dealt with according to law. An important decision in this regard
is Sunderbhai Ambalal Desai vs State Of Gujarat decided on 1st October,
2002 in Crl. Special Leave Petition (Crl.) 2745 of 2002.

Section 451clearly empowers the Court to pass appropriate orders with


regard to such property, such as-(1) for the proper custody pending
conclusion of the inquiry or trial; (2) to order it t o be sold or otherwise
disposed of, after recording such evidence as it think necessary; Section
451clearly empowers the Court to pass appropriate orders with regard to
such property, (3) if the property is subject to speedy and natural decay,
to dispose of the same.
It was held in that decision that the powers under Section 451Cr.P.C.
should be exercised expeditiously and judiciously. It would serve various
purposes, namely:-
1. Owner of the article would not suffer because of its remaining unused
or by its misappropriation.
2. Court or the police would not be required to keep the article in safe
custody;
3. If the proper panchanama before handing over possession of article is
prepared, that can be used in evidence instead of its production before
the Court during the trial. If necessary, evidence could also be recorded
describing the nature of the properly in detail; and
4. This jurisdiction of the Court to record evidence should be xercised
promptly so that there may not be further chance of tampering with the
articles.
The question of proper custody of the seized article is raised in number of
matters. In Smt. Basawa Kom Dyanmangouda Patil v. State of Mysore and
Anr., reported in [1977] 4 SCC 358, the Hon'ble Supreme court held that,
where the seized articles were not available for being returned to the
complainant. In that case, the recovered ornaments were kept in a trunk in the
police station and later it was found missing, the question was with regard to
payment of those articles.
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28. Conclusion
It is necessary to file a petition for seeking a relief in Criminal Courts
under any provision of law. The criminal court shall endeavour to dispose of
the miscellaneous petition as early as possible because, it effects entire
criminal justice system. As and when a petition is filed, the primary duty of
the court is to scrutinise whether such petition is maintainable as per law and
after come to conclusion that such petitions are maintainable, court shall
assign a number to the petition and after that notice shall be ordered to the
opposite party. After hearing both parties, the court shall pass an order and
such order shall be a speaking order and strictly according to law.
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Paper Presented by
Sri B.Papi Reddy,
XVI Addl. District Judge,
Nandigama.

All the criminal proceedings are governed by the procedural law that is
Code of Criminal Procedure, 1973. (for short Cr.P.C.).
The word miscellaneous petitions is not defined either in Code of
Criminal procedure or in Criminal Rules of practice but as per Oxford
Dictionary miscellaneous means ‘consisting of many different kinds’ generally
miscellaneous petitions can be filed either for interim relief or it may some
times for final relief of discharge of the accused from the criminal case.
Criminal miscellaneous petitions are filed during the pendency of main
case. Even prior to registration of the criminal case also anticipatory bail
application can be filed, Some petitions are meant for a relief which is
temporary and urgent in nature. Few examples of miscellaneous petitions are :
1. Petitions under section 70 (2) Cr.P.C. for recall of warrants.
2. Petition under section 317 Cr.P.C. for dispensing the presence of the
accused
3. Petition under section 256 Cr.P.C. for condoning the presence of complainant
in the Court.
4. Petition under section 436 Cr.P.C. for bail in bailable offence,
5. Petition under section 437 Cr.P.C. for bail in non-bailable cases
6. Petition under section 438 Cr.P.C. for grant of anticipatory bail.
7. Petition under section 439 Cr.P.C. for grant of bail before Sessions Court.
8. Petition under section 451 Cr.P.C. for custody and disposal of property pending
trial in certain cases.
9. Petition under section 457 Cr.P.C. for interim custody of the case
properties.
10. Petition under section 482 Cr.P.C. for a relief which is not provided in any
specific provision of the Court.
11. Discharge petition either under section 227 or 239 Cr.P.C as the case
may be
12. Section 91 Cr.P.C
As per section 273 Cr.P.C the evidence shall be recorded in the presence
of the accused or his personal presence is dispensed in presence of his pleader.
It is mandatory under criminal law that the accused of an offence shall appear
in the Court for all the dates of hearing during trial of the matter so as to hear
the evidence and know his case, it is for the reason to provide fair trial, this is
because no accused shall be punished unheard. For the reasons to be
explained to the satisfaction of the Court, such presence can be condoned by
petition filed under 317 Cr.P.C.
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In SIRANGAI SHOBA @ SHOBA MUNNURI V/S SIRANGI MURALIDHAR


RAO (2016 LawSuit(Hyd) 488) it is held that the requirement of law from
Sections 273 & 317(2) of the Code of Criminal Procedure is that the evidence
must be recorded in presence of the accused and unless he waives the same
and consenting in the presence of his Advocate or special vakalath holder
permitted if any, further it is held that the term presence in this Section does
not mean the actual physical presence of the accused or witness in the Court
and it may be through video conference to provid fair trial.
Similarly, it is for the complainant to appear when he presents complaint
to the Court under section 190(1) Cr.P.C. that he shall appear on each date of
hearing but under certain circumstances, to meet the exigencies absence of the
complainant can be condoned under section 256Cr.P.C.
Several properties will be involved in the crimes. Some of them are
weapons used for the commission of offence, and some properties will be the
vehicles and other valuable articles which are subject matter of theft etc or
used in commission of any offence. In view of the time log taken for disposal of
main case, a procedure is laid down under the code under sections 451, 457
Cr.P.C. for interim custody of the case properties, in this regard it is
important to discuss a decision of our Hon’ble Supreme Court in SUNDER
BHAI AMBALAL DESAI V/S STATE OF GUJARAT(2002 LawSuit(SC) 1346) the
Hon’ble Court given directions to be followed while dealing with the case
properties as under
“[12] For this purpose, if material on record indicates that such articles
belong to the complainant at whose house theft, robbery or dacoity has taken
place, then seized articles be handed over to the complainant after:--
(1) preparing detailed proper panchnama of such articles;
(2) taking photographs of such articles and a bond that such articles would be
produced if required at the time of trial; and
(3) after taking proper security.
[13] For this purpose, the Court may follow the procedure of recording
such evidence, as it thinks necessary, as provided under Section 451 Cr.P.C.
The bond and security should be taken so as to prevent the evidence being lost,
altered or destroyed. The Court should see that photographs of such articles
are attested or countersigned by the complainant, accused as well as by the
person to whom the custody is handed over. Still however, it would be the
function of the Court under Section 451 Cr.P.C. to impose any other
appropriate condition”.
“Vehicles
[17] In our view, whatever be the situation, it is of no use to keep such
seized vehicles at the police stations for a long period. It is for the Magistrate to
pass appropriate orders immediately by taking appropriate bond and guarantee
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as well as security for return of the said vehicles, if required at any point of
time. This can be done pending hearing of applications for return of such
vehicles.
[18] In case where the vehicle is not claimed by the accused, owner, or the
insurance company or by third person, then such vehicle may be ordered to be
auctioned by the Court. If the said vehicle is insured with the insurance
company then insurance company be informed by the Court to take possession
of the vehicle which is not claimed by the owner or a third person. If Insurance
company fails to take possession the vehicles may be sold as per the direction
of the Court. The Court would pass such order within a period of six months
from the date of production of the said vehicle before the Court. In any case,
before handing over possession of such vehicles, appropriate photographs of
the said vehicle should be taken and detailed panchnama should be prepared.
[21] However these powers are to be exercised by the concerned
Magistrate. We hope and trust that the concerned Magistrate would take
immediate action for seeing that powers under Section 451 Cr.P.C. are properly
and promptly exercised and articles are not kept for a long time at the police
station, in any case, for not more than fifteen days to one month. This object
can also be achieved if there is proper supervision by the Registry of the
concerned High Court in seeing that the rules framed by the H igh Court with
regard to such articles are implemented properly”.
The Hon’ble Supreme Court further directed that the powers under
Section 451 Cr.P.C. should be exercised expeditiously and judiciously so as to
serve various purposes, like owner of the article would not suffer because of its
remaining unused or by its misappropriation, the Court or the police would not
be required to keep the article in safe custody for longer period.
In a case between A.SATHISHA V/S STATE OF A P reported in 2015 (2)
Crimes 121 while dealing with the case properties involved in the Forest
offences it is held as under:
“in K.A.Kunchidammed , second forester v. Mansoor Ali Khan, 2004 1
SCC 293 which followed the earlier expression in State of Karnataka V.
K.Krishnan held that when a vehicle is involved in the forest offence, the same
is not to be released to the offender or to the claimant as a matter of routine till
the culmination of the proceedings which may include confiscation of such
vehicle. It was therefrom the facts held that the confiscation order passed by
the forest officials and sitting against by the learned District Judge against
which while sitting by the High Court in its invoking jurisdiction under Section
482 Cr.P.C for interim release of vehicle held is nothing but exceeding
jurisdiction.
[14] Having regard to the above, the law is fairly settled in saying that
because of the specific provision empowering the forest officials the criminal
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Courts cannot assume the general jurisdiction conferred under Cr.P.C for
ordering interim custody or release of vehicle”.
Provision as to bails and bonds dealt from section 436 to 450 Cr.P.C
under which the accused can move Miscellaneous applications for bail or the
sureties can file application for discharge them as sureties, the accused can
also file miscellaneous application for mandatory bail under section 167(2)
Cr.P.C if the charge sheet is not filed within the contemplated period of his
detention.
Under section 311 Cr.P.C. miscellaneous petitions are filed to receive
documents or examine a person, recall or re-examine any witnesses etc. under
the provisions of the Code, the Hon’ble high court while dealing with a revision
preferred against the dismissal of the application under section 311 Cr.P.C in a
case between YARRAMADHA ASHOK V/S GADE RAM REDDY AND ORS
reported in 2017
(1) ALT(Cri) 38 while refering a decison of Hon’ble Apex Court it is held as
under:
“ In Natasha Singh v. CBI, 2013 5 SCC 741 the Apex Court held as under:-
"Fair trial is the main object of criminal procedure, and it is the duty of the
court to ensure that such fairness is not hampered or threatened in any
manner. Fair trial entails the interests of the accused, the victim and of the
society, and therefore, fair trial includes the grant of fair and proper
opportunities to the person concerned, and the same must be ensured as this
is a constitutional, as well as a human right. Thus, under no circumstances
can a person's right to fair trial be jeopardized. Adducing evidence in support of
the defence is a valuable right. Denial of such right would amount to the denial
of a fair trial. Thus, it is essential that the rules of procedure that have been
designed to ensure justice are scrupulously followed."
That in a different situation our Hon’ble High Court in a case between K
VITTALA RAO & 2 OTHERS V/S STATE OF ANDHRA PRADESH reported in
2017 (2) Crimes(HC) 194 while affirming the order of dismissal of application
under section 311 Cr.P.C, at the stage when the evidence concluded on the
ground that earlier counsel failed to elicit some facts held as under
“[12] For the reasons that;
i) the examination of prosecution witnesses has been completed and the
Sessions Case is coming up for the examination of applicants under Section
313 of the Code;
ii) that the ground agitated that the earlier advocate did not cross examine
PWs.1 to 3 and 5 on the aspect of harassment that was found out by the new
advocate of the petitioners/applicants themselves without assigning convincing
reasons to satisfy the conscience of the Court to accede to their request; and
14

iii) acceding to such a request would lead to virtually a re-trial of the


prosecution case; absolutely there is no merit in the present request. The order
passed by the learned Additional Sessions Judge does not suffer from any legal
infirmity, nor it is patently illegal warranting interference”.
In Hanuman Ram v. The State of Rajasthan, 2009 AIR(SC) 69 it was held that
the object underlying Section 311 of Cr.P.C. is to prevent failure of justice on
account of mistake of either party to bring a record valuable evidence or leaving
an ambiguity in the statements of the witnesses.
In State of Andhra Pradesh V.Ramancha Lakshma Reddy 2010 (2) ALD
847 A.P. and Ch.Rama Koteswara Rao and others V. State of A.P. 2010 (1) ALD
Crl.259 A.P. it is held that the powers under Sec.311 of Cr.P.C are
discretionary and the discretion has to be exercised judiciously with reasons to
be recorded in writing.
In Rajendra Prasad V. Narcotic Cell (1996) 6 SCC 110 and Shailendra
Kumar V. State of Bihar, AIR 2002 SC 270, it is held that application
U/sec.311 of Cr.P.C can be allowed for more than once for the same cause, if
such evidence appears to the Court to be essential to the just decision of the
case.
In a case of K RAWINDRA REDDY V/S STATE OF A P reported in 2016
(1) ALT(Cri) 192 while summarizing the pronouncements it is held as under:
“[22] What could be gathered from the various authorities referred to
above is that the endeavour of the Court should be to secure the best possible
evidence and the parties should be given adequate opportunity to prove a fact
or point in issue. The ultimate object of the Court should be to determine the
truth and to render a just decision. Fair trial is the main object of criminal
procedure and such fairness should not be hampered or threatened in any
manner. The interest of the accused, the victim and the society have to be kept
in mind and under no circumstance can a persons right to fair trial be
jeopardized. The object underlying Section 311 Cr.P.C., is that there may not
be a failure of justice on account of mistake of either party in bringing the
valuable evidence on record or leaving ambiguity in the statements of the
witnesses examined from either side. For the just decision of the case, whether
a witness can be summoned or recalled has to be determined. The interest of
all the stakeholders should be protected. Sometimes the examination of
witness or recalling a witness may result in filling up loopholes but that is
purely subsidiary factor and cannot be taken into account. The prime concern
of the Court should be discovery, vindication and establishment of truth. A trial
Court being a primary Court, every opportunity should be given to correct the
errors. Similarly, if proper evidence was not adduce or a relevant material was
not brought on record due to any inadvertence, the Court should be
magnanimous in permitting such mistakes to be rectified”.
15

The miscellaneous petitions are meant to facilitate the parties concerned,


to get necessary relief but however the court should allow, disallow such
petitions as per the settled principles and in the facts and circumstances of
each case. All the provisions are incorporated in the Code of Criminal
procedure. They are meant to ease the procedural aspects during pendency
and after conclusion of the trials.
Section 389 Cr.P.C. provides for application by the convicted person
seeking suspension of sentence or his release on bail pending the appeal, the
court which convicted the accused can also suspend the sentence provided the
accused intends to file appeal in cases where the offence does not attract the
sentence more than three years.
An application under section 91 Cr.P.C. can be filed before the Court for
a direction to produce documents or thing. These are the few examples to
Criminal Miscellaneous Petitions, which are used day in and day out during
criminal trials. The scope and ambit of the said provision was considered in
State of Orissa v. Debendra Nath Padhi, 2005 1 SCC 568 wherein it is held as
under:-
"The first and foremost requirement of the section is about the
document being necessary or desirable. The necessity or desirability would
have to be seen with reference to the stage when a prayer is made for the
production. If any document is necessary or desirable for the defence of the
accused, the question of invoking Section 91 at the initial stage of framing of a
charge would not arise since defence of the accused is not relevant at that
stage. When the section refers to investigation, inquiry, trial or other
proceedings, it is to be borne in mind that under the section a police officer
may move the court for summoning and production of a document as may be
necessary at any of the stages mentioned in the section. Insofar as the accused
is concerned, his entitlement to seek order under Section 91 would ordinarily
not come till the stage of defence. When the section talks of the document
being necessary and desirable, it is implicit that necessity and desirability is to
be examined considering the stage when such a prayer for summoning and
production is made and the party who makes it, whether police or accused. If
under Section 227, what is necessary and relevant is only the record produced
in terms of Section 173 of the Code, the accused cannot at that stage invoke
Section 91 to seek production of any document to show his innocence. Under
Section 91 summons for production of document can be issued by court and
under a written order an officer in charge of a police station can also direct
production thereof. Section 91 does not confer any right on the accused to
produce document in his possession to prove his defence. Section 91
presupposes that when the document is not produced process may be initiated
to compel production thereof."
16

The accused can file criminal miscellaneous petition to discharge him


from the criminal case in case there is no sufficient material to proceed as
against him, in case of trial of warrant cases it can be filed under section 239
Cr.P.C or in Sessions cases it can be filed under section 227 Cr.P.C, the court
entertaining such petition has to go through the material placed by the
prosecution, if there is no sufficient grounds to proceed against the accused he
can be completely discharged from the case and final relief can be granted
otherwise the charge has to be framed and proceeded against the accused. The
Hon’ble Apex Court settled the principle in dealing with the discharge petitions
in a case of SAJJAN KUMAR V/S C.B.I reported in 2010 (9) SC C 368 and held
as under
“[17] Exercise of jurisdiction under Sections 227 & 228 of Cr.P.C.
On consideration of the authorities about the scope of Section 227 and 228 of
the Code, the following principles emerge:-
(i) The Judge while considering the question of framing the charges
under Section 227 of the Cr.P.C. has the undoubted power to sift and weigh
the evidence for the limited purpose of finding out whether or not a prima facie
case against the accused has been made out. The test to determine prima facie
case would depend upon the facts of each case.
ii) Where the materials placed before the Court disclose grave suspicion
against the accused which has not been properly explained, the Court will be
fully justified in framing a charge and proceeding with the trial.
iii) The Court cannot act merely as a Post Office or a mouthpiece of the
prosecution but has to consider the broad probabilities of the case, the total
effect of the evidence and the documents produced before the Court, any basic
infirmities etc. However, at this stage, there cannot be a roving enquiry into the
pros and cons of the matter and weigh the evidence as if he was conducting a
trial.
iv) If on the basis of the material on record, the Court could form an
opinion that the accused might have committed offence, it can frame the
charge, though for conviction the conclusion is required to be proved beyond
reasonable doubt that the accused has committed the offence.
v) At the time of framing of the charges, the probative value of the material
on record cannot be gone into but before framing a charge the Court must
apply its judicial mind on the material placed on record and must be satisfied
that the commission of offence by the accused was possible.
vi) At the stage of Sections 227 and 228, the Court is required to evaluate
the material and documents on re co rd with a view to find out if the facts
emerging therefrom taken at their face value discloses the existence of all the
ingredients constituting the alleged offence. For this limited purpose, sift the
evidence as it cannot be expected even at that initial stage to accept all that the
17

prosecution states as gospel truth even if it is opposed to common sense or the


broad probabilities of the case.
vii) If two views are possible and one of them gives rise to suspicion only,
as distinguished from grave suspicion, the trial Judge will be empowered to
discharge the accused and at this stage, he is not to see whether the trial will
end in conviction or acquittal”.
That no discharge petition maintainable in summons cases as held by the
Hon’ble Apex Court in Adalat Prasad Vs Ruplal Jindal reported in AIR 2004 SC
4674.
That no judicial order can be passed on memo as per a decision between
Syed Yousuf Vs Mohd Yousuf Ali reported in 2016(3) ALD 235 hence if any
memo is filed praying to grant any relief no order should be passed
Conclusion:
The main object of provisions of miscellaneous petitions are to give every
opportunity to the parties and to dispose the matter on merits the accused
shall be given fair opportunity and he cannot be punished unheard, justice not
only be done but seems to be done.
18

Paper Presented by
Sri P. Govardhan,
II Additional Senior Civil Judge
Vijayawada

Dealing with the Criminal Miscellaneous Petitions is one of the important


tasks of the Magistrate/Judge in the Criminal Court. The filing of Criminal
Miscellaneous Petition will start even before registering the case by way of
anticipatory bail application. The criminal miscellaneous petition may be filed
even at the inception of a criminal proceeding, during the criminal proceeding,
or after conclusion of the same. The courts must be cautious while dealing
these petitions with regard to their maintainability on the point of jurisdiction
and competency.
The orders passed in these petitions are mostly interlocutory in nature.
Some of the petitions are for specific purpose and specific period either interim
or final. When a petition is filed seeking interim relief, it is registered as
Miscellaneous petition. A Memo filed before the Court of Law need not be
treated as Petition. Where a Petition is filed requiring some relief from the
court, a notice to opposite party is mandatory in most of the cases.
But it is difficult to determine which is the interlocutory order. There is
no hard and fast rule in determination of the same as decided in Smt.
Raminder Kaur Bedi Vs Jatinder singh Bedi (1989)1 crimes 352(Delhi).
In a nutshell it can be called as a Petition other than a main case. When
a Miscellaneous Petition is filed in Criminal cases, it is registered as Criminal
Miscellaneous Petition. As soon as a Petition is filed, primary duty of the Court
is to see whether the relief sought is provided under Criminal Procedure ode or
not. If it is provided, the Petition shall be called in Public Court by assigning a
particular Miscellaneous number and notice shall be ordered to the
In Criminal Courts, we come across several Miscellaneous Petitions
seeking different reliefs. The petitions are being filed U/sec.90 and 91 Cr.P.C ,
Sec.125(3) Cr.P.C, Sec.167 Cr.P.C, Sec.227 Cr.P.C, Sec.239 Cr.P.C, Sec.311
Cr.P.C, Sec. 317 Cr.P.C, Sec.319 Cr.P.C,Sec.321 Cr.P.C,Sec.437 Cr.P.C to
Sec.439 Cr.P.C, Sec.451 Cr.P.C and Sec.457 Cr.P.C.
Some important legal principles:
1. When a Petition is filed before Judicial Magistrate of First Class Court seeking
discharge of the accused in a case exclusively triable by the Court of Sessions,
the Court cannot discharge the accused in view of the decision held in between
Sanjay Gandhi Vs. Union of India AIR 1978 (SC) 514
2. In a decision between Maleedu Venkanna Vs. State of Andhra Pradesh
2003(1) ALD (Crl.) 117 where in our Hon‟ble High Court held that Local
Inspection by Presiding Officer is not at alla step in Criminal proceedings in
normal parlance.
19

3. In Iddar & Ors. vs. Aabida & Anr AIR 2007 SC 3029, the object underlying
under Section 311 Cr.P.C., has been stated that there may not be failure of
justice on account of mistake of either party in bringing the valuable evidence
on record or leaving ambiguity in the statements of the witnesses examined
from either side. The determinative factor is whether it is essential to the just
decision of the case. The section is not limited only for the benefit of the
accused, and it will not be an improper exercise of the powers of the court to
summon a witness under the section merely because the evidence supports the
case for the prosecution and not that of the accused. The section is a general
section which applies to all proceedings, enquiries and trials under the Code
and empowers Magistrate to issue summons to any witness at any stage of
such proceedings, trial or enquiry. In Section 311 CRPC, the significant
expression that occurs is “at any stage of inquiry or trial or other proceeding
under this Code‟. It is, however, to be borne in mind that whereas the section
confers a very wide power on the court on summoning witnesses, the discretion
conferred is to be exercised judiciously, as the wider the power the greater is
the necessity for application of judicial mind.
4. In a decision Sanjay Chandra v. Central Bureau Of Investigation (2G
Spectrum Scam Case) (2012) 1 SCC 40 explained the factors to be considered
while granting or refusing bail.
20

Paper Presented by
Smt. U.Indira Priya Darshini,
IV Addl. Chief Metropolitan Magistrate,
Vijayawada.

There is no definition for the “criminal miscellaneous petition” either


in Code of Criminal Procedure 1973 or in any other law. According to Oxford
Dictionary meaning of “Miscellaneous” is consisting of mixture of various things
that are not usually connected with each other. The meaning of the criminal
miscellaneous petition in general cull out from dictionary and in practice is “A
formal expression of request submitted by way of an application before
the criminal court in or otherwise in the criminal proceedings on
different kinds of reliefs for some privilege, right, benefit, or for an
action”.
Therefore, a petition can be defined as a written application from a
person or persons to some governing body or public official asking that some
authority be exercised to grant relief, favours, or privileges. If such relief is
sought before the criminal court, it shall be called a miscellaneous petition. In
broader sense, a miscellaneous petition is nothing but a relief sought from the
court by the parties.
2. Dealing with the Criminal Miscellaneous Petitions are one of the
important task of the Magistrate/Judge in the Criminal Court.
 The filing of Criminal Miscellaneous Petition will start even before registering
the case by way of anticipatory bail application.
 The criminal miscellaneous petition may be filed even at the inception of a
criminal proceeding, during the criminal proceeding, or after conclusion of the
same.
 The courts must be cautious while dealing these petitions with regard to their
maintainability on the point of jurisdiction and competency.
3. (i) The orders passed in these petitions are mostly interim in nature.
Some of the petitions are for specific purpose and specific period either interim
or final.
(ii) Usually, we come across the situation, where the memos are filed
instead of petitions. When a petition is filed seeking interim relief, it is
registered as Miscellaneous petition. A Memo filed before the Court of Law need
not be treated as Petition.
(iii) The main difference between Petition and Memo is that, Memo is
nothing but bringing a fact to the notice before a Court of Law and no relief can
be sought for in a Memo and notice to the opposite party is not required.
However, where a Petition is filed requiring some relief from the court, a notice
to opposite party is mandatory in most of the cases. No order to be passed on
21

Memo as held in between Syed Yousuf Ali Vs. Mohd. Yousuf and Others
2016 (3) ALD 235.
4. But it is difficult to determine which is the interlocutory order. There is
no hard and fast rule in determination of the same as decided in Smt.
Raminder Kaur Bedi Vs Jatinder singh Bedi (1989) 1 crimes 352 (Delhi).
For instance, Order granting interim maintenance is interlocutory order but a
contra view taken in a decision in Sunil Kumar Vs Ms. Neelam Sabharwal
(1991) 1 crimes 568 (D.B) In nutshell it can be called as a Petition other than
a main case.
5. When a Miscellaneous Petition is filed in Criminal cases, it is registered
as Criminal Miscellaneous Petition.
 As soon as a Petition is filed, primary duty of the Court is to see whether
the relief sought is provided under Criminal Procedure Code or not.
 If it is provided, the Petition shall be called in Public Court by assigning a
particular Miscellaneous number and notice shall be ordered to the opposite
party.
 Having heard both the parties, a speaking order has to be pronounced.
 In Criminal Courts, we come across several Miscellaneous Petitions
seeking different reliefs.
 The petitions are being filed U/sec.90 and 91 Cr.P.C., Sec.125(3) Cr.P.C,
Sec.167 Cr.P.C, Sec.227 Cr.P.C, Sec.239 Cr.P.C, Sec.311 Cr.P.C, Sec. 317
Cr.P.C, Sec.319 Cr.P.C,Sec.321 Cr.P.C, Sec.437 Cr.P.C to Sec.439 Cr.P.C,
Sec.451 Cr.P.C and Sec.457 Cr.P.C for necessary reliefs.
 Section 91 Cr.P.C- Summons to produce document or other thing. Section
91 with the head note Process to Compel Production of Things of the Code of
Criminal Procedure, 1973 states that:
(1) Whenever any Court or any officer in charge of a police station
consider that the production of any document or other thing is necessary or
desirable for the purpose of any investigation, inquiry, trial or other proceeding
under this code by or before such court or officer, such court may issue a
summons, or such officer a written order, to the person in whose possession or
power such document or thing is believed to be, requiring him to attend and
produce it, or to produce it, at the time and place stated in the summons or
order.
(2) Any person required under this section merely to produce a document or
other thing shall be deemed to have complied with the requisition if he causes
such document or thing to be produced instead of attending personally to
produce the same.
Sometimes the counsel for the defence may file Petition u/sec.91 Cr.P.C
to summons the documents at the time of framing charges. But at that stage, it
is to be kept in mind that the Court has to examine the material which is
22

produced by the prosecution and it cannot summon any document at the


instance of the accused. This preposition of law is laid down by Hon‟ble
Supreme Court of India in a case reported in AIR 2005 SC 359 between State
of Orissa Vs. Debendra Nath Padhi.
 Section 125( 3) Cr.P.C. : If any person so ordered fails without sufficient
cause to comply with the order, any such Magistrate may, for every breach of
the order, issue a warrant for levying the amount due in the manner provided
for levying fines, and may sentence such person, for the whole or any part of
each month's allowances remaining unpaid after the execution of the warrant,
to imprisonment for a term which may extend to one month or until payment if
sooner made:
Provided that no warrant shall be issued for the recovery of any amount
due under this section unless application be made to the Court to levy such
amount within a period of one year from the date on which it became due:
Provided further that if such person offers to maintain his wife on
condition of her living with him, and she refuses to live with him, such
Magistrate may consider any grounds of refusal stated by her, and may make
an order under this section notwithstanding such offer, if he is satisfied that
there is just ground for so doing.
In Judicial Magistrate of First Class Courts and Family Courts, Criminal
Miscellaneous Petitions are being filed during the pendency of main
proceedings for issuing warrant against the husband to send prison for breach
of the order of maintenance or interim maintenance u/sec.125 (3) of Cr.P.C. If
the husband is a salaried employee, court can pass orders that the future
salary of husband can be attached as held by Hon‟ble High Court of Madras in
a between Mani Vs. Jaya Kumar 1998 Crl.L.J., 3708
 Section 167 (2) Cr.P.C : The Hon'ble Supreme Court of India in
Pragyna Singh Thakur vs. State of Maharashtra (2011) 10 SCC 445 after
considering the provision of sec.167(2) of the Cr.P.C. and the case laws on the
subject, it was held as under:
The right under Section 167(2) of Cr.P.C. to be released on bail on default
if charge sheet is not filed within 90 days or 60 days as the case may be from
the date of first remand is not an absolute or indefeasible right. The said right
would be lost if charge sheet is filed and would not survive after filing of the
charge sheet. In other words, even if an application for bail is filed on the
ground that charge sheet was not filed within 90 days or 60 days, but before
the consideration of the same and before being released on bail, if charge sheet
is filed, the said right to be released on bail would be lost. After filing of the
charge sheet, if the accused is to be released on bail, it can be only on merits.
This is quite evident from Constitution Bench decision of Hon‟ble Supreme
Court in Sanjay Dutt vs. State (1994) 5 SCC 410.
23

 Section 239 Cr.P.C - When accused shall be discharged If, upon


considering the police report and the documents sent with it under section 173
and making such examination, if any, of the accused as the Magistrate thinks
necessary and after giving the prosecution and the accused an opportunity of
being heard, the Magistrate considers the charge against the accused to be
groundless, he shall discharge the accused, and record his reasons for so
doing.
It is to be noted that the word 'groundless' means without basis or
foundation. Also that, when there is prima facie material to frame charge
against an accused, then, the charge cannot be said to be a groundless one
and an accused cannot be discharged under Section 239 of Cr.P.C. A Court of
Law in an exercise under Section 239 of Cr.P.C is to consider the police report
and the documents to determine whether the allegations/averments against
the accused are 'groundless' or whether there is scope for presuming that the
accused has committed an offence. The word 'consider' literally means due
application of mind in the considered opinion of the Court. It cannot be lost
sight of that the presumption therein is a rebuttal one by the accused for which
he should be provided with an opportunity to take part in the trial proceedings.
It is to be borne in mind that the standard of proof requires at the final
stage is not required before taking a decision to frame charge or discharge the
accused. The term 'legal evidence' is not an appropriate one, when a Court of
Law is to make up its mind to frame charge or discharge an accused and the
materials placed, then, it will not have the status of evidence. In fact, even the
accused cannot be discharged under section 239 Cr.P.C, on prosecution failure
to produce the record under Section 161 (3) of Cr.P.C. in original. In this
connection, the Court pertinently points out that at the stage of Section 239 of
Cr.P.C viz., framing of charge against the accused, it is not permissible for a
Court of Law to weigh the pros and cons of all the implication of materials, not
for shifting the materials produced by the prosecution.
Thus, When a Petition is filed under section 239 of Cr.P.C in
Magistrate‟s Court and under section 227 Cr.P.C in Sessions Court seeking
discharge of the accused from the Warrant case or Sessions case, before
allowing that petition, the Court has to see whether there is any prima facie
case appearing against the accused. The court shall sift the evidence in order
to find out whether or not allegations made are groundless so as to order
discharge. The Court is not expected to go deep into the matter and hold that
the material would not warrant a conviction. What needs to be considered is
whether there is ground for presumption that offence has been committed and
not, whether ground for convicting the accused has been made out of it as held
in State of Tamilnadu by Inspector of Police, Anticorruption Vs. Suraj
Rajan and others 2014 (3) SCC (Crl ) 529
24

(a) When a Petition is filed before Judicial Magistrate of First Class Court
seeking discharge of the accused in a case exclusively triable by the Court of
Sessions, the Court cannot discharge the accused in view of the decision held
in between Sanjay Gandhi Vs. Union of India AIR 1978 (SC) 514.
(b) A Criminal Miscellaneous petition for discharge of accused in summons
case is not at all maintainable as held by the Hon‟ble Apex Court in a case
between Adalat Prasad Vs. Rooplal Jindal AIR 2004 SC 4674 . Because
there is no question of discharge in summons case. Discharge in summons
case amounts to recall of summons, which is not permissible under law.
(c) When a petition is filed seeking for discharge of the accused, the court
cannot look into the documents produced by the accused vide decision
reported in Hem Chand Vs State of Jharkhand AIR 2008 SC 19.
 Sec. 310 Cr.P.C- Local Inspection : Sometimes, the counsel for the
defence file Petition under section 310 Cr.P.C praying the Court to make local
inspection. But it is not at all desirable for the court to do so as held in a
decision between Maleedu Venkanna Vs. State of AndhraPradesh 2003(1)
ALD (Crl.) 117 where in our Hon‟ble High Court held that Local Inspection by
Presiding Officer is not at all a step in Criminal proceedings in normal
parlance.
 Section 311 Cr.P.C- Power to summon material witness, or examine
person present. Any Court may, at any stage of any inquiry, trial or other
proceeding under this Code, summon any person as a witness, or examine any
person in attendance, though not summoned as a witness, or. recall and re-
examine any person already examined; and the Court shall summon and
examine or recall and re- examine any such person if his evidence appears to it
to be essential to the just decision of the case.
In Iddar & Ors. vs. Aabida & Anr. AIR 2007 SC 3029, the object
underlying under Section 311 Cr.P.C., has been stated that there may not be
failure of justice on account of mistake of either party in bringing the valuable
evidence on record or leaving ambiguity in the statements of the witnesses
examined from either side. The determinative factor is whether it is essential to
the just decision of the case. The section is not limited only for the benefit of
the accused, and it will not be an improper exercise of the powers of the court
to summon a witness under the section merely because the evidence supports
the case for the prosecution and not that of the accused. The section is a
general section which applies to all proceedings, enquiries and trials under the
Code and empowers Magistrate to issue summons to any witness at any stage
of such proceedings, trial or enquiry. In Section 311 the significant expression
that occurs is „at any stage of inquiry or trial or other proceeding under this
Code‟. It is, however, to be borne in mind that whereas the section confers a
very wide power on the court on summoning witnesses, the discretion
25

conferred is to be exercised judiciously, as the wider the power the greater is


the necessity for application of judicial mind.
Generally we come across with petitions under section 311 Cr.P.C.,
praying the court to recall a witnesses who were already examined. The court
has to see whether recall of witness is necessary to come to just conclusion,
the same was held in a case between Rama Paswan and others Vs. State of
Jharkand 2007 (2) ALD SC.
 Section 205 Cr.P.C and Section 317 Cr.P.C: Provision for inquiries
and trial being held in the absence of accused in certain cases: Section 317
Cr.P.C lays down the procedure for inquiries and trials being conducted in the
absence of accused in certain cases. The section enables the Court to dispense
with the personal attendance of the accused and proceed with the inquiry or
trial in his absence.
Section 205 which provides that when a Magistrate issues a summons,
he may dispense with the personal attendance of the accused and permit him
to appear by a pleader.
The general rule is that all inquiries and trials should be conducted in
the presence of the accused. Therefore, this section provides an exception to
this general rule. Sub-Section (2) provides for the case of an accused who is not
represented by a pleader but whose continued personal presence or attendance
may be necessary. In such a case the Court may either adjourn the trial of all
the accused or order the particular absenting accused to be tried separately. In
either case, i.e., sub-section (1) or (2) the Court shall record reasons in writing
for its decision in this regard.
The observations made by the Kerala High Court in the context of
Section 317 deserve pointed attention. The Court held that in all trivial and
technical cases not involving moral turpitude, where the accused are ladies, old
and sick persons, factory workers, labourers, busy business people and
industrialists, the Courts should invariably exempt such persons from personal
attendance under this section of the Code. The Courts should see that undue
harassment is not caused to the accused appearing before them.
In Baskar Industries Ltd. v. Bhiwani Denim & Apprals Ltd Criminal
Revision No. 1203 of 2009 the Hon‟ble Supreme Court held that in certain
cases the Magistrate may exempt the accused even from the first personal
attendance and permit him to be represented by his Counsel and record the
Counsel‟s evidence as the evidence given by the accused. Section 317 permits
the Magistrate to exempt the accused from personal appearance before the
Court provided he is being represented by his defence Counsel and the latter is
appearing before the Court on behalf of the accused.
 Section 319 Cr.P.C. Under this Section, the court is having the
undoubted authority to proceed against persons who are not arrayed as
26

accused. The power Under this section could be exercised by the court suo
motu or on an application by any one including the accused standing trial
before the court. Therefore, even the accused can apply Under Section 319 (1)
Cr.P.C. to take cognizance against the other persons not charge sheeted by the
police, though they were equally involved in the offence. While the court is
exercising the jurisdiction Under Section 319 Cr.P.C the findings of exoneration
recorded by the investigating agency cannot be given precedents over the
finding recorded by a judicial court on the basis of contents of complaint, first
information report and also substantive testimony of the complainant during
trial who with stood the cross examination.
In one of the decision decided by the Hon'ble Supreme court in
Brijendra Singh and others Vs. State of Rajasthan Crl. Appeal No.763 of
2017 the Hon'ble Supreme court held that that the degree of satisfaction to
exercise power under Section 319 Cr.P.C. to summon persons not arraigned as
accused is more than the degree warranted at the time of framing of the
charges against others in respect of whom charge sheet filed. Further observed
that “Only where strong and cogent evidence occurs against a person from the
evidence led before the Court that such power should be exercised. It is not to
be exercised in a casual or a cavalier manner.
The scope of Section 319 Cr.P.C is clearly explained in Jabardin Khan
v. Stateof U.P. Criminal Misc. Writ Petition No. – 8865 of 2014, that just
on the basis of evidence adduced before it, if it appears to the Court that a
person against whom no charge has been framed but his complicity makes it
clear that he should be tried along with the other accused then as per S.319 of
Cr.P.C., the Court can invoke it‟s power to try such person. Further, it was
held that as per S. 319(4)(b) Cr.P.C., the accused, subsequently impleaded, is
to be treated as if he had been an accused when the Court initially took
cognizance of the offence and that the degree of satisfaction that will be
required for summoning a person under Section 319 Cr.P.C. would be the
same as for framing a charge. The Court also held that under the said
provision Trial Court is not required to wait for cross-examination as it can
take action on the basis of statement made by the concerned examination-in-
chief. Jabardin Khan v. State of U.P. Criminal Misc. Writ Petition No. –
8865 of 2014.
 Section 321Cr.P.C – Withdrawal from Prosecution: The section further
requires that where the offence falls within any of the categories mentioned in
sub-clauses (i) to (iv) of the proviso, the permission of the Central / State
Government has to be obtained for moving an application for withdrawal from
the prosecution by the Public Prosecutor. However, where the prosecution is
being proceeded by a complainant on a private complaint, the Public
Prosecutor is not entitled to apply for withdrawal from prosecution in such a
27

case. It must be pointed out that Section 321 provides for „withdrawal from
prosecution‟ and not the „withdrawal of the prosecution, the accused shall be
discharged if the withdrawal is before the framing of a charge and he shall be
acquitted where no charge has been framed and such acquittal shall be a bar
to a re-trial under Section 300 of the Code.
It would also be pertinent to note the distinction between composition of
an offence under Section 320 and „withdrawal” under Section 321 of the Code.
The main distinction between the two is as follows —
1) Composition of an offence requires consent of both parties whereas
withdrawal is an act of one party only, namely, the Public Prosecutor.
2) Withdrawal is always with the consent of the Court but in case of
composition of an offence Court‟s permission is not always necessary
3) Composition necessarily ends in the acquittal of the accused, but in case
of withdrawal accused is discharged if withdrawal is made before a charge is
framed.
Section 321 applies to every kind of inquiry and trial as also all cases which are
capable of terminating either in a discharge or an acquittal according to the
stage at which application for withdrawal is made.

In one of the decision , the Hon‟ble High Court in Bairam Muralidhar


Vs. State of Andhra Pradesh [Criminal Appeal No. 1587 of 2014 arising out
of S.L.P. (CRL.) 1487 of 2012] Held that:
The discretion under Section 321, Code of Criminal Procedure is to be
carefully exercised by the court having due regard to all the relevant facts and
shall not be exercised to stifle the prosecution which is being done at the
instance of the aggrieved parties or the State for redressing their grievance.
Every crime is an offence against the society and if the accused committed an
offence, society demands that he should be punished. Punishing the person
who perpetrated the crime is an essential requirement for the maintenance of
law and order and peace in the society. Therefore, the withdrawal of the
prosecution shall be permitted only when valid reasons are made out for the
same.
 BAIL- Section 437 to 439 Cr.P.C : “Bail” remains an undefined term in
the C.P.C. Nowhere else the term has been statutorily defined. Conceptually, it
continues to be understood as a right for assertion of freedom against the State
imposing restraints since the U.N. Declaration of Human Rights of 1948, to
which India is a signatory, the concept of bail has found a place within the
scope of human rights. The dictionary meaning of the expression `bail‟ denotes
a security for appearance of a prisoner for his release. Etymologically, the word
is derived from an old French verb `bailer‟ which means to `give‟ or `to deliver‟,
28

although another view is that its derivation is from the Latin term baiulare,
meaning `to bear a burden‟. Bail is a conditional liberty.
Bail may thus be regarded as a mechanism whereby the State devolutes
upon the community the function of securing the presence of the prisoners,
and at the same time involves participation of the community in administration
of justice.
In a decision Sanjay Chandra v. Central Bureau Of Investigation (2G
Spectrum Scam Case) (2012) 1 SCC 40 explained the factors to be considered
while granting or refusing bail.
Purpose of Bail
Seriousness of the charge not the only relevant factor while considering
bail application Both the seriousness of the charge and the severity of the
punishment should be taken into consideration while granting bail.
Right to bail is not to be denied merely because of the sentiments of the
community against the accused.
Article 21 violated when under-trial prisoners are detained in jail custody
to an indefinite period Person whose application for enlargement on bail is once
rejected is not precluded from filing a subsequent application for grant of bail if
there is a change in the fact situation.
Findings of a higher court or a coordinate bench must receive serious
consideration at the hands of the court entertaining a bail application at a later
stage when the same had been rejected earlier.
Order for bail bereft of any cogent reason cannot be sustained.
Basic criterion for cancellation of bail - interference or even an attempt to
interfere with the due course of administration of justice‟
Duty incumbent on the High Court to explicitly state the reasons as to
why the sudden departure in the order of grant as against the rejection
Prolonged delay in disposal of the trials and thereafter appeals in criminal
cases, for no fault of the accused, confers a right upon him to apply for bail.
In bail applications, generally, it has been laid down from the earliest
times that the object of bail is to secure the appearance of the accused person
at his trial by reasonable amount of bail. The object of bail is neither punitive
nor preventative. Deprivation of liberty must be considered as a punishment,
unless it can be required to ensure that an accused person will stand his trial
when called upon. The courts owe more than verbal respect to the principle
that punishment begins after conviction, and that every man is deemed to be
innocent until duly tried and duly found guilty.
From the earliest times, it was appreciated that detention in custody
pending completion of trial could be a cause of great hardship. From time to
time, necessity demands that some un-convicted persons should be held in
custody pending trial to secure their attendance at the trial but in such cases,
29

`necessity‟ is the operative test. In this country, it would be quite contrary to


the concept of personal liberty enshrined in the Constitution that any person
should be punished in respect of any matter, upon which, he has not been
convicted or that in any circumstances, he should be deprived of his liberty
upon only the belief that he will tamper with the witnesses if left at liberty, save
in the most extraordinary circumstances.
Apart from the question of prevention being the object of refusal of bail,
one must not lose sight of the fact that any imprisonment before conviction has
a substantial punitive content and it would be improper for any court to refuse
bail as a mark of disapproval of former conduct whether the accused has been
convicted for it or not to refuse bail to an unconvicted person for the purpose of
giving him a taste of imprisonment as a lesson.
 Section 451 and Section 457 Cr.P.C: "451. Order for custody and
disposal of property pending trial in certain cases- When any property is
produced before any Criminal Court during any inquiry or trial, the Court may
make such order as it thinks fit for the proper custody of such property
pending the conclusion of the inquiry or trial, and. if the property is subject to
speedy and natural decay, or if it is otherwise expedient so to do, the Court
may, after recording such evidence as it thinks necessary, order it to be sold or
otherwise disposed of.
Explanation-For the purposes of this section, "property" includes (a)
property of any kind or document which is produced before the Court or which
is in its custody. (b) any property regarding which an offence appears to have
been committed or which appears to have been used for the commission of any
offence.
Section 457: Procedure by police upon seizure of property-
1. Whenever the seizure of property by any police officer is reported to a
Magistrate under the provisions of this Code, and such property is not
produced before a Criminal Court during an inquiry or trial, the Magistrate
may make such order as he thinks fit respecting the disposal of such property
or the delivery of such property to the person entitled to the possession thereof,
or if such person cannot be ascertained, respecting the custody and production
of such property.
2. If the person so entitled is known, the Magistrate may order the property
to be delivered to him on such conditions (if any) as the Magistrate thinks fit
and if such person is unknown, the Magistrate may detain it and shall, in such
case, issue a proclamation specifying the articles of which such property
consists, and requiring any person who may have a claim thereto, to appear
before him and establish his claim within six months from the date of such
proclamation."
30

In Sunderbhai Ambalal Desai vs State Of Gujarat Special Leave


Petition (Crl.) 2745 of 2002, Section 451 clearly empowers the Court to pass
appropriate orders with regard to such property, such as-(1) for the proper
custody pending conclusion of the inquiry or trial; (2) to order it to be sold or
otherwise disposed of, after recording such evidence as it think necessary;
Section 451 clearly empowers the Court to pass appropriate orders with regard
to such property, (3) if the property is subject to speedy and natural decay, to
dispose of the same.
It is submitted that despite wide powers proper orders are not passed by
the Courts. It is also pointed out that in the State of Gujarat there is Gujarat
Police Manual for disposal and custody of such articles. As per the Manual
also, various circulars are issued for maintenance of proper registers for
keeping the muddamal articles in safe custody.
It was further held that the powers under Section 451 Cr.P.C. should be
exercised expeditiously and judiciously. It would serve various purposes,
namely:-
1. Owner of the article would not suffer because of its remaining unused or by
its misappropriation.
2. Court or the police would not be required to keep the article in safe custody;
3. If the proper panchanama before handing over possession of article is
prepared, that can be used in evidence instead of its production before the
Court during the trial. If necessary, evidence could also be recorded describing
the nature of the properly in detail; and
4. This jurisdiction of the Court to record evidence should be exercised
promptly so that there may not be further chance of tampering with the
articles.
The question of proper custody of the seized article is raised in number of
matters. In Smt. Basawa Kom Dyanmangouda Patil v. State of Mysore and
Anr., [1977] 4 SCC 358, the Hon'ble Supreme court held that, where the
seized articles were not available for being returned to the complainant. In that
case, the recovered ornaments were kept in a trunk in the police station and
later it was found missing, the question was with regard to payment of those
articles. In that context, the Court observed as under-
The object and scheme of the various provisions of the Code appear to be
that where the property which has been the subject-matter of an offence is
seized by the police, it ought not to be retained in the custody of the Court or of
the police for any time longer than what is absolutely necessary. As the seizure
of the property by the police amounts to a clear entrustment of the property to
a Government servant, the idea is that the property should be restored to the
original owner after the necessity to retain it ceases. It is manifest that there
may be two stages when the property may be returned to the owner. In the first
31

place it may be returned during any inquiry or trial. This may particularly be
necessary where the property concerned is subject to speedy or natural decay.
There may be other compelling reasons also which may justify the disposal of
the property to the owner or otherwise in the interest of justice. The High Court
and the Sessions Judge proceeded on the footing that one of the essential
requirements of the Code is that the articles concerned must be produced
before the Court or should be in its custody. The object of the code seems to be
that any property which is in the control of the Court either directly or
indirectly should be disposed of by the Court and a just and proper order
should be passed by the Court regarding its disposal. In a criminal case, the
police always acts under the direct control of the Court and has to take orders
from it at every stage of an inquiry or trial. In this broad sense, therefore, the
Court exercises an overall control on the actions of the police officers in every
case where it has taken cognizance." The Court further observed that where the
property is stolen, lost or destroyed and there is no prima facie defence made
out that the State or its officers had taken due care and caution to protect the
property, the Magistrate may, in an appropriate case, where the ends of justice
so require, order payment of the value of the property.
To avoid such a situation, in our view, powers under Section 451Cr.P.C.
should be exercised promptly and at the earliest. Valuable Articles and
Currency Notes With regard to valuable articles, such as golden or sliver
ornaments or articles studded with precious stones, it is submitted that it is of
no use to keep such articles in police custody for years till the trial is over. In
our view, this submission requires to be accepted. In such cases, Magistrate
should pass appropriate orders as contemplated under Section 451Cr.P.C. at
the earliest. For this purposes, if material on record indicates that such articles
belong to the complainant at whose house theft, robbery or dacoity has taken
place, then seized articles be handed over to the complainant after:-
(1) preparing detailed proper panchanama of such articles:
(2) taking photographs of such articles and a bond that such articles would
be produced if required at the time of trial; and (3) after taking proper security.
For this purpose, the Court may follow the procedure of recording such
evidence, as it thinks necessary, as provided under Section 451 Cr.P.C. The
bond and security should be taken so as to prevent the evidence being lost,
altered or destroyed. The Court should see that photographs or such articles
are attested or countersigned by the complainant, accused as well as by the
person to whom the custody is handed over. Still however, it would be the
function of the Court under Section 451 Cr.P.C. to impose any other
appropriate condition.
In case, where such articles are not handed over either to the
complainant or to the person from whom such articles are seized or to its
32

claimant, then the Court may direct that such articles be kept in bank lockers.
Similarly, if articles are required to kept in police custody, it would be open to
the SIIO after preparing proper panchanama to keep such articles in a bank
locker. In any case, such articles should be produced before the Magistrate
within a week of their seizure. If required, the Court may direct that such
articles be handed over back to the Investigating Officer for further
investigation and identification, However, in no set of circumstances, the
Investigating Officer should keep such articles in custody fora longer period for
the purpose of investigation and identification. For currency notes, similar
procedure can be followed. Number of vehicles are kept unattended and
vehicles become junk day by day. It is his contention that appropriate
directions should be given to the Magistrates who are dealing with such
questions to hand over such vehicles to its owner or to the person from whom
the said vehicles are seized by taking appropriate bond and the guarantee for
the return of the said vehicles if required by the Court at any point of time.
In case where the vehicle is not claimed by the accused, owner, or the
insurance company or by third person, then such vehicle may be ordered to be
auctioned by the Court. If the said vehicle is insured with the insurance
company then insurance company be informed by the Court to take possession
of the vehicle which is not claimed by the owner or a third person. If Insurance
company fails to take possession, the vehicles may be sold as per the direction
of the Court. The Court would pass such order within a period of six months
from the date of production of the said vehicle before the Court. In any case,
before handing over possession of such vehicles, appropriate photographs of
the said vehicle should be taken and detailed panchanama should be prepared.
For articles such as seized liquor also, prompt action should be taken in
disposing it of after preparing necessary panchanama. If sample is required to
be taken, sample may kept properly after sending it to the chemical analyser, if
required. But in no case, large quantity of liquor should be stored at the police
station. No purpose is served by such storing.
Similarly for the Narcotic drugs also, for its identification, procedure
under Section 451 Cr.P.C. should be followed of recording evidence and
disposal. Its identity could be on the basis of evidence recorded by the
Magistrate. Samples also should be sent immediately to the Chemical Analyser
so that subsequently, a contention may not be raised that the article which
was seized was not the same.
Conclusion:
The criminal court shall endeavor to dispose of the miscellaneous
petition, as early as possible, because, it effects entire criminal justice system.
The dubious miscellaneous petitions, which would be filed to drag on the case
without any being of decision of the court, those petition shall be decided
33

without any delay and, filing such petition shall be disposed off with cost, and
it is incumbent upon the court to deprecate such petition. As and when a
petition is filed, the primary duty of the court is that, whether such petition is
maintainable as per law and having come to conclusion that such petitions are
maintainable, and court shall assign a number to the petition and after that
notice shall be ordered to the opposite part. Having heard both the parties, the
court shall pass an order and such order shall be a speaking order.
34

Paper Presented by
Sri Kumar Vivek,
Senior Civil Judge,
Nandigama.

The Criminal miscellaneous petitions are generally filed during the


pendency of the criminal case, however, there are a few petitions that are filed
after disposal of the criminal case like petitions under section 362, 452 etc. of
the Code of Criminal Procedure. Whenever a criminal miscellaneous petition is
filed the same has to be checked by the ministerial staff, however, the same will
not absolve th Presiding Officer from bestowing his attention with respect to
the maintainability of the said petition before the Court. A petition claiming
arrears of maintenance under section 128 of the Code of Criminal Procedure
beyond particular period is not maintainable. Similarly a petition filed for
discharge of the accused under section 245 of the Code of Criminal Procedure
before the complainant adduces his evidence, is not maintainable. A petition
filed for discharge of the accused under section 228/239 of the Code of
Criminal Procedure after framing of charge is not maintainable. Though there
is no units prescribed for disposal of any criminal miscellaneous petition,
however, the disposal of the criminal miscellaneous petition require utmost
diligence in the light of settled principles of law by the superior Courts as such
petition decides the course of the case. In this paper presentation I have
attempted to highlight the authoritative pronouncements of the superior
Courts while adjudicating criminal miscellaneous petitions that are commonly
filed in the criminal Court.
Petition filed under section 70 (2) of the Code of the Criminal
Procedure for cancellation of warrant.
The Court should not insist for personal appearance of the accused at
the time of hearing petition under section 70 (2) of the Code of the Criminal
Procedure, however, a condition can be imposed for appearance of the accused
on the next date of adjournment1. It shall be open to the jail authorities to
refuse to honor a warrant if the age of the person remanded to the judicial
custody is not indicated and it would be lawful for such Officers to refer back
the warrant to the issuing Court for rectification of the defect before it is
honored2.
Petition filed under section 73 of the Code of the Criminal
Procedure for issuing commission to any person for arresting the accused

1
2000 (1) LS 78 M/s. Ramakrishna Agencies, Guntur vs. State of Andhra Pradesh, rep. by the Public
Prosecutor

2
AIR 1988 SC 414 Sanjay Suri vs Delhi Administration, Delhi
35

In a private complaint, initially the Court should direct service of


summons along with a copy of a complaint, if accused seen to be avoiding
summons then the Court issue bailable warrant, and when the Court is fully
satisfied that the accused is avoiding Court proceedings intentionally, then
process of issuance of non-bailable warrant shall be resorted to3. Non-bailable
warrant should be issued when (i) it is reasonable to believe that the person
will not voluntarily appear in the Court; or (ii) police authorities are unable to
find said person to serve him with summons; or (iii)it is considered that person
could harm someone if not placed into custody immediately.
Petition filed under section 91 of the Code of the Criminal
Procedure for production of documents or other thing.
Section 91 (1) of the Code of the Criminal Procedure does not empower a
Magistrate to direct the prosecution to give copies of any documents to an
accused4. The accused cannot invoke section 91 of the Code of the Criminal
Procedure at the initial stage of framing of charge on the ground that any
document or thing is necessary or desirable for the defence of the accused as at
that stage the defence of the accused is not relevant. The first and foremost
requirement of the section is about the document or thing being a necessary or
desirable5. The accused cannot be summoned under section 91 (1) of the Code
of the Criminal Procedure to produce document or other thing as no accused
should be compelled to incriminate himself hence the word “person” in the
section does not include an accused6.

Petition filed under section 97 of the Code of the Criminal


Procedure for search of the person wrongfully confined.
Under section 6 of the Hindu Minority and Guardianship Act, 1966
mother is also a natural guardian of minor children, hence custody of minor
children with mother would neither be unlawful or wrongful, therefore, the
provisions of section 97 of the Code of the Criminal Procedure would not be
applicable7.
Petition filed under section 125 of the Code of Criminal Procedure.
Merely because the wife is capable of earning money is not a sufficient
ground to reduce the maintenance awarded by the Family Court 8 . An

3
AIR 2008 SC 251 INDER MOHAN GOSWAMI vs. STATE OF UTTARANCHAL

4
AIR 1970 SC 962 ASSISTANT COLLECTOR OF CUSTOMS, BOMBAY vs. L R MELWANI

5
AIR 2005 SC 359 State vs. Debendra

6
AIR 1965 SC 1251 STATE OF GUJARAT vs SHYAMLAL MOHANLAL CHOKSI, MANUBHAI MOTILAL PATEL

7
1997 (10) SCC 342 ANJALI ANIL RANGARI vs ANIL KRIPASAGAR RANGARI

8
AIR 2017 SC 1174 Shailaja and Anr. vs. Khobbana
36

application for maintenance cannot be dismissed for default and in case it is so


dismissed, the default order cannot be recalled or is set aside by the same
Court9. The clause in an agreement that the wife shall not be entitled to claim
maintenance from the husband cannot be used as defence in the proceedings
under section 125 of the Code of Criminal Procedure, as it is opposed to public
policy, as such claim is void under section 23 of the Indian Contract Act10.
Simply because the wife has not claimed maintenance for a long time period it
does not mean that she has completely abandoned her right or voluntarily
given up her right to claim maintenance section 125 of the Code of Criminal
Procedure, has not restricted the period of limitation to claim maintenance11.
Maintenance under section 125 can be awarded from the date of the order, or,
if so ordered, from the date of application for maintenance, as the case may be.
For awarding maintenance from the date of the application, express order is
necessary, no special reasons, however, are required to be recorded by the
Court 12 . When the marriage between the husband and his second wife was
solemnized, the second wife was kept in the dark by the husband about his
first subsisting marriage, the husband cannot be pleaded that the second wife
is not legally wedded wife. The second wife is entitled to maintenance13. Held
that possession of post graduate qualification by the wife is not sufficient to
hold that she is in a position to maintain herself. In any event merely because
the wife was earning something it would not be a ground to reject her claim for
maintenance 14 .The petition filed under section 125 of the Code of Criminal
Procedure can be amended even in absence any express provision of law15.
Petition filed under section 156 (3) of the Code of Criminal
Procedure.
A petition under section 156 (3) of the Code of Criminal Procedure should
be supported with an affidavit, there should be a specific averment regarding
previous filing of police complaint under section 154 (1) and (4) of the Code of
Criminal Procedure, and the copies of such complaint has to be enclosed with
such petition16.

9
C.Subramanyam vs. C.Sumathi. 2003 (2) ALD (Cri) 905 AP

10
Mad L.J.1986 (1) 514

11
1990 (1) ALT 450 Golla Seetharamulu vs. Golla Rathanamma

12
AIR 2008 SC 3006 Shail Kumari Devi vs. Krishan Bhagwan Pathak @ Kishun B Pathak

13
2014 (1) SCC 188 Badshah vs. Sou Urmila Badshah Godse & Anr

14
2015 (1) ALD (Crl.) 484 (SC) Sunita Kachwaha & Ors vs. Anil Kachwaha

15
1991 Mad LJ (Crl.) 99

16
AIR 2015 SC 1758 Mrs.Priyanka Srivastava & Another vs. State of U.P. and others
37

Petition filed under section 167(2)(a) of the Code of Criminal


Procedure Code for grant of police custody of the accused.
Police custody cannot be granted after expiry of first 15 days of the
surrender of the accused 17 . There is no distinction in the case where the
accused himself surrendered or where he is arrested by the police and where
the accused himself surrendered before the Magistrate the police custody
cannot be granted after expiry of first 15 days of surrender 18 . Where an
accused is arrested in connection with one of two offences remanded to police
custody for 15 days, the police cannot ask for police custody for further period
after expiry of initial 15 days of remand if during the investigation the
complicity of the accused in more serious offences is discovered in the same
occurrence, but this limitation shall not apply to a different occurrence in
which the complicity of the accused is disclosed19.
Petition filed for statutory bail under proviso to the section167 (2)
of the Code of Criminal Procedure.
When the charge sheet is filed within the statutory period of 90 days but it is
returned for compliance of certain technical operations have filed an opinion by
scientific expert within proper compliance under section 177 (2) of the Code of
Criminal Procedure and the same will not confer right on the accused to seek
bail as a matter of right under proviso of section 167 (2) of the Code of Criminal
Procedure20.
Petition filed under section 205 of the Code of the Criminal
Procedure dispensing the attendance of the accused.
An accused cannot be permitted to be represented in Court through a
power of attorney holder as section 2 of the Power of Attorney Act do not over
ride the provisions of the Code of the Criminal Procedure21.
Petition filed for addition/alteration of charge under section 216 of
the Code of the Criminal Procedure.
The additions/alterations in the charges must be based on the facts in
the complaint in case of private prosecution22. A new trial can commence only
when the Court passes a specific order and directs a de novo trial, it cannot be
presumed that new trial commences only because an addition/alteration to a

17
1996 (1) Crimes 70 Public Prosecutor High Court of Andhra Pradesh vs. J.C.Narayana Reddy

18
1996 (1) ALD Crl. 506 Public Prosecutor High Court of Andhra Pradesh vs. J.C.Narayana Reddy and others

19
AIR 1992 SC 1768 Central Bureau of Investigation, Special Investigation Cell-I, New Delhi vs. Anupam J
Kulkarni

20
2009 (1) ALD (Crl.) 818 (AP) Venkatarayanakote Krishnappa Raghavendra and another vs. State of
Andhra Pradesh

21
2003 (1) LS 363 Dr.Syed Shamshuddin Babar vs. Ikram Ali Kaleem and Anr

22
AIR 1954 SC 266 Harihar Chakravarty vs State of West Bengal
38

charge has been read over and explained to the accused23. An informant can
file a petition under section 216 of the Code of Criminal Procedure for
alteration of charge and there is scope for alteration of charge during trial on
the basis of material brought on the record24.
Petition filed for discharge of the accused under section 227 of the
Code of the Criminal Procedure.
At the stage of deciding petition for discharge of the accused the Judge is
not to see as to whether trial will end in conviction or acquittal and section 227
postulates exercise of judicial mind on the part of the Judge to the facts of the
case in order to determine whether a case for trial has been made out by the
prosecution25. Where an offence is exclusively trial by the Court of Sessions,
the Committing Magistrate has no power to discharge the accused26. If made
up facts supported by any material or reported by the police and sessions of
offence is made to appear, it would be open to the Sessions Judge to discharge
the accused under section 227 of the Code of the Criminal Procedure. Truth,
veracity and effect of evidence not to be judged at the time of deciding petition
under section 227 of the Code of the Criminal Procedure27.For the purpose of
determining whether there is sufficient ground for proceeding against an
accused, the Court possesses comparatively wider description in exercise of
which it can determine the question whether the material on record, if un-
rebutted, is such on the basis of which a conviction can be said reasonable to
be possible28.
Petition filed for discharge of the accused under section 239 of the
Code of the Criminal Procedure.
No evidence need be recorded before discharging the accused under
section 239 of the Code of the Criminal Procedure29. Documents filed by the
accused at the time of filing of petition under section 239 of the Code of the
Criminal Procedure cannot be considered and the documents filed by the
prosecution alone has to be considered at that stage30. Section 239/245 of the
Code of the Criminal Procedure makes it obligatory on the part of the
Magistrate to record reasons while discharging the accused, but no such

23
AIR 1995 SC 1219 Ranbiryadav vs State of Bihar

24
AIR 2016 SC 1197 Anant Prakash Sinha @ Anant Sinha vs. State of Haryana & Anr

25
2008 (6) Scale 469 Yogesh @ Sachin Jagdish Joshi vs State of Maharastra

26
AIR 1978 SC 514 Sanjay Gandhi vs Union of India

27
AIR 1980 SC 1780 Kewal Krishan vs Suraj Bhan

28
AIR 1977 SC 1489 L.Karnataka vs L.Munishwamy

29
AIR 1964 SC 949 Ramnarayan Mor vs State of Maharastra

30
AIR 2005 SC 359 State of Orissa vs. Debendranath Padhi
39

requirement is contained in section 240 of the Code of the Criminal Procedure


which provides for framing of charge31. Where the Magistrate takes cognizance
of the offence without taking note of the fact that the complaint was time
barred, the Magistrate can discharge the accused at the stage of framing of
charge32.
Petition filed for discharge of the accused under section 245 of the
Code of the Criminal Procedure
Discharge under section 245 (2) of the Code of the Criminal Procedure
can only be ordered when the evidence adduced by the prosecution has been
recorded and no case is made out of such evidence and such discharge cannot
be ordered before recording evidence33.
Petition filed under section 257 of the Code of the Criminal
Procedure for withdrawal of private complaint
Where a petition is filed for withdrawal of complaint under section 257 of
the Code of the Criminal Procedure in respect of offence under section 429 of
the Indian Penal Code that is triable adopting warrant procedure, such
application is not maintainable, and the complainant has to file an application
under section 321 of the Code of the Criminal Procedure34.
Petition filed under section 303 of the Code of the Criminal
Procedure for assignment of a Pleader
Under section 303 of the Code of the Criminal Procedure the accused is
only entitled to engage “a pleader” of his choice and not one after the other and
where the accused wanted to engage another Advocate in place of one engaged
earlier without filing any petition in the Court for revoking memo of appearance
of their previous Advocate the petition filed by the accused is liable to be
dismissed, and it is only when previous Advocate refuse to conduct matter
before the Court, the Court is obliged to assign legal aid Counsel to the
accused.
Petition filed under section 311 of the Code of the Criminal
Procedure for summoning material witness or examining the person
present in the Court.
The questions that ought to have been put to the prosecution witness
but due inadvertence could not be put to the witness, is not a ground to recall
a witness35. Change of a lawyer is not a ground for recalling witness36. Under

31
AIR 2000 SC 522 Kanti Bhadra Shah vs State of West Bengal

32
AIR 1999 SC 2071 Arun Vyas vs Anita Vyas

33
2003 (2) ALT (Crl.) 251 Dharasbhai Gorakhbhai Nayak vs State of Gujarat

34
2005 (2) ALD (Crl.) 944 N.Raja Mallareddy vs. State of Andhra Pradesh and another

35
2001 Crl.L.J 3217 State of Madhya Pradesh vs. Pittu@ Pratap Singh
40

section 311 of the Code of the Criminal Procedure the Court is empowered to
examine a person though he was not cited as a witness by the prosecution in
the charge sheet or by the complainant in the private complaint, but the
accused must be afforded an opportunity to rebut that evidence37. Where the
lacuna in the prosecution case is left at the stage of filing of charge sheet, that
cannot be overcome by the prosecution during the course of trial or by taking
recourse to the provisions of section 311 of the Code of the Criminal Procedure,
and the second part of the section 311 of the Code of the Criminal Procedure is
mandatory 38 . Under section 311 of the Code of the Criminal Procedure the
Court is empowered to recall/re-examine a witness, whose evidence was
eschewed, especially when his evidence is found to be essential for just
decision in the case39. A witness may be recalled for further cross-examination
for limited purpose of asking only a specific questions, and in the name of
further cross-examination a witness should not be allowed to be cross-
examined as done at the first instance when witness was tendered for cross-
examination40. Unless there are compelling or substantial reasons furnished by
the accused for recalling witness, ordinarily witnesses cannot be recalled when
the Counsel appearing for the accused has cross-examined the prosecution
witnesses at length and there is no need to cross-examine them further 41 .
When a prosecution witness is recalled at the stage of arguments on the
ground that relevant evidence was not brought on record due to inadvertence,
it does not amount to trying to fill up a lacuna in the prosecution evidence42.
The accused cannot be examined under section 311 of the Code of the Criminal
Procedure on his own application along with other defence witnesses as no
oath can be administered to an accused and permission to examine the
accused himself can be granted only if separate application under section 315
of the Code of the Criminal Procedure is filed 43 . When the defence of the
accused is not sudden and unexpected, the accused had at the initial stage
suggested his defence on his examination under section 313 of the Code of
Criminal Procedure to the defacto-complainant recalling of the defacto-

36
1998 (2) LS 296 Beagari Pentaiah and others vs. State of Andhra Pradesh

37
2005 Cri.LJ 716 Cheemo Steel Limited, Secunderabad and another vs. State of Andhra Pradesh and others

38
2003 ALD (Crl.) 44 (NOC)(Bom) Fatehsinh Mohansinh Chauhan and another vs. Union Territory of Dadra
and Naga Haveli, Silvassa and another

39
2007 (3) APLJ 262 Jeslina Ghei vs. State of Andhra Pradesh and others

40
2010 (1) LS 89 Ch.Ramakoteswara Rao and others vs. State of Andhra Pradesh

41
2010 (2) ALD Crl. 847 State of Andhra Pradesh vs. Ramancha Lakshmareddy

42
AIR 1999 SC 2292 Rajendra Prasad vs.Narcotic Cell through its Officer-in-charge, Delhi

43
2000 (9) SCC 754 Salvi J.Jayalalitha vs State rep. by Deputy Superintendent of Police, Chennai
41

complainant for her further examination in chief amounts to filling up the


lacuna in the prosecution case44. In every criminal proceeding the prosecution
is expected to foresee the defence of the accused while proceeding with the
trial. The case has been posted for judgment and at that stage some documents
were sought to be filed by the prosecution that were admittedly in the
possession of the defacto-complainant. If such petition is allowed to take
corroborative evidence or to let in rebutting evidence, there may not be an end,
the proceedings will be protracted and that will ultimately prejudice to the
accused45.
Petition filed under section 319 of the Code of the Criminal
Procedure for adding the accused.
The power under section 319 of the Code of Criminal Procedure can be
exercised by the Court suo-motu or on an application by someone including the
accused before it46. The persons who have been discharged under section 245
of the Code of the Criminal Procedure of all or some of the charges are
“accused” and hence cannot be proceeded against under section 319 of the
Code of Criminal Procedure47. The term “evidence” as used in section 319 of
the Code of Criminal Procedure is not the evidence which is tested by the
cross-examination. An accused not named in the FIR can be arraigned as an
accused48.

Petition filed under section 320 of the Code of the Criminal


Procedure.
Only such offences, which are included in two tables, provided under
section 320 can be compounded as section 320 (9) of the Code of the Criminal
Procedure imposes a specific bar on compounding of offences other than those
included in two tables49. It is not necessary to file an affidavit affirmed by the
complainant or the accused when a settlement is agreed between the two as
per the provisions of section 320 of the Code of the Criminal Procedure50.
Petition filed under section 321 of the Code of the Criminal
Procedure for withdrawal from prosecution

44
1987 (1) Bom C R 533 Shridhar Waman Surushe vs. State of Maharashtra

45
1975 Cri L.J. 1715 T. Bhasyam vs. State

46
AIR 2006 SC 1892 Lok Ram vs. Nihal Singh

47
AIR 2004 SC 4298 Krishna vs. State

48
Crl.A.No.1750 of 2008Hardeep Singh vs. State of Punjab

49
AIR 2008 SC 3074 Manish Jalan vs.State of Karnataka

50
2008 (3) Scale 443 R.Rajeswari vs H.N.Jagadish
42

In withdrawal from prosecution, the Public Prosecutor cannot act like a


postbox or act on the dictate of the State Government. He has to act objectively
as he is also an Officer of the Court. At the same time the Court is also not
bound by that. The Courts are also free to assess whether the prima-facie is
made or not 51 . Rejection of an earlier application for withdrawal from
prosecution cannot be a ground for refusing to grant consent for withdrawal by
subsequent application52. Once the charge has been framed by the Court, it
would not be open to the Public Prosecutor to apply for withdrawal from
prosecution on the ground of insufficiency of evidence in support of the
prosecution53. It is not necessary for the Court to assess evidence to discover
whether case would end in conviction or acquittal, and the provision of the
section do not obligate the Court to record reasons before consent is given,
however, it does not mean that the consent of the Court is a matter of course54.
The permission for withdrawal from prosecution can be sought at any stage
during the course of enquiry or after committal or even before the Judgment55.
Petition filed under section 328 of the Code of the Criminal
Procedure for deciding the plea of unsoundness of mind of the accused
The Magistrate cannot decide the plea of insanity of the accused by his
mere observance of the accused and it can be decided only through expertise
knowledge56. Section 328 of the Code of the Criminal Procedure has nothing to
do with the question whether the accused was or was not of unsound mind
when he is alleged to have committed the offence57.
Petition filed for prosecution for offences not affecting administrate
of justice under section 340 of the Code of the Criminal Procedure.
Where the allegations against the accused is of making a false statement
in the Court then a private complaint cannot be filed at the instance of the
opposite party and only the Court in which the said offence is said to have been
committed only can file a complaint under section 195 of the Code of Criminal
Procedure 58 . Unless the complaint is made by the competent Officer as
specified under section 195 of the Code of Criminal Procedure, prosecution
cannot further be proceeded with. However, the bar under section 195 (1) (b)

51
AIR 2006 SC 413 S.K Shukla vs State of Utter Pradesh

52
2004 Crl.LJ.1318 = 1991 (4) Orissa Cri R 263

53
AIR 1979 SC 877

54
AIR 1987 SC 877 Sheonandan Paswan vs State of Bihar

55
AIR 1972 SC 495 Nabi Bux vs state of Madhya Pradesh

56
1998 (1) APLJ (Crl.) 317 K.K.Viswanatha Raju vs.State of Andhra Pradesh

57
AIR 1972 SC 2267 Jai Shankar vs State of Himachal Pradesh

58
2000 (2) ALD Crl.562 Illa Srirama Murthy vs. Sanivarapu Satyanarayana and others
43

does not apply to the documents which are forged prior to filing of them before
the Court59. The provisions of section 195 of the Code of Criminal Procedure
are mandatory and the Court has no jurisdiction to take cognizance of any of
the offences mentioned therein unless there is a complaint in writing as
required by that section60. Making of a contradictory statement in a judicial
proceeding is not sufficient to justify prosecution under section 199 and 200 of
the Indian Penal Code but it must be shown that the defendant has
intentionally given a false statement or fabricated false evidence for the
purpose of using the same at any stage of judicial proceedings. Holding of
preliminary inquiry under section 340 (1) of the Code of Criminal Procedure is
not mandatory if the formation of the opinion is otherwise possible and the
procedure prescribed for trial of warrant cases have to be followed in respect of
the offences under section 195 (1) (b) (1) of the Code of Criminal Procedure61.
Petition filed under section 362 of the Code of the Criminal
Procedure for alteration of Judgment.
Where the Sessions Judge allowed the appeal of the accused against
conviction by the trial Court under section 498-A of the Indian Penal Code and
sections 4 and 6 of the Dowry Prohibition Act, 1961 but due to oversight failed
to mention section 4 of the Dowry Prohibition Act, 1961 in the operative part of
the Judgment then the Sessions Judge allowed the petition filed under section
362 of the Code of the Criminal Procedure, that was held to be rightly allowed
for correction of clerical mistake, and it cannot be termed as review of the
Judgment62.
Petition filed under section 389 (1) of the Code of the Criminal
Procedure for suspension of the sentence pending the appeal.
Dismissal from service due to conviction of a Government servant due to
non-suspension of the conviction is not a ground to suspend the sentence as
the Court has to see as to whether irreparable injury is going to be caused to
the convict in case his conviction is not suspended and dismissal from service
on the ground of conviction is not an irreparable injury as it becomes
repairable the moment appeal is allowed63.
Petition filed under section 436 of the Code of the Criminal
Procedure for bail in bailable offence.

59
1999 (2) ALD 953 Shaik Mahaboob Shareef vs.State and another

60
AIR 1971 SC 1708 Govind Mehta vs. State of Bihar

61
AIR 2016 SC 5384 Amarsang Nathaji vs.Hardhik Harshadbhai Patel

62
2004 (2) ALD (Crl.) 524 Dr.G.Venkateswara Rao vs. Center for DNA Finger Printing and Diagonstics,
Nacharam, Hyderabad and another

63
2012 (1) ALD (Crl.)426 L. Satish Kumar vs. State of Andhra Pradesh
44

In all the bailable offences, bail can be claimed as a matter of right by an


accused64.
Petition filed under sections 437 and 439 of the Code of the
Criminal Procedure for non-bailable offences.
Bail is the rule and committal to jail is an exception and seriousness of
charge and severity of punishment which the party may be liable, if convicted
should be taken into consideration at the time of grant or refusal of bail65. At
the time of considering bail application, it has to be seen whether a prima-facie
case has been made out or not and there is no need for critical examination of
evidence on record at that stage as the same is required to be done after full
fledged trial 66 . Nature and seriousness of offence, character of evidence,
circumstances peculiar to the accused, reasonable possibility of presence of the
accused not being secured at trial, reasonable apprehension of witnesses being
tampered with, large interest of public or State, are the factors to be considered
at the time of granting bail in non-bailable cases 67 . While granting bail,
indication of reasons for prima-facie concluding as to why bail was being
granted are necessary and any order dehors such reasons would suffer from
non application of mind 68 . Bail application has to be disposed of normally
within one week69. Surety furnished by the accused cannot be rejected because
he or his estate is situated in a different district and such order is illegal70.
Where the bail granted to the accused is unconditional bail, yet condition that
the accused should not tamper with evidence, applies71. The principles of res-
judicata and such analogous principles are not applicable in criminal
proceedings and successive applications for bail are maintainable72. The basic
criteria for cancellation of bail is interference or attempt to interfere with
administration of justice and/or abuse of privilege granted73. The main purpose
of imposing conditions at the time of granting bail is to see that the accused
shall not abscond and he will be available to face trial before the Court, and the

64
AIR 1967 SC 1639 Ratilal Bhanjl Mithani vs Assistant Collector of Customs, Bombay

65
AIR 2012 SC 830 Sanjay Chandra vs. Central Bureau of Investigation

66
2009 (2) ALD (Cri.) 948 Talluri Srinivas vs. State

67
AIR 2005 SC 716 Jayendra Saraswathi Swamigal vs.State of Tamilnadu

68
AIR 2004 SC 4258 State of Maharashtra vs Sitaram Popat Vetal

69
Crl.A.No.509, 511 of 2017 Hussain and Anr. vs.Union of India, and Aasu vs. State of Rajasthan

70
AIR 1978 SC 1594 Motiram vs State of Madhya Pradesh

71
2007 (7) Scale 377 Rizwan Akbar Hussain Syyed vs. Mehmood Hussain

72
AIR 2005 SC 921 Kalyanchandrasarkar vs Rajesh Ranjan @ Pappu Yadav

73
AIR 2002 SC 1405 Anil Ratan Sarkar vs Hirak Ghosh
45

second purpose is to see that the accused shall not threaten the prosecution
witnesses and interfere with the process of criminal justice system and
conditions have to be imposed keeping in view the rights of the accused and
the rights of the victims and witnesses74. Whenever the accused is enlarged on
bail he need not be required to appear before the Court until charge sheet is
filed and process is issued by the Court75. The grounds for cancellation of bail
under section 437 (5) and 439 (2) of the Code of the Criminal Procedure are
identical, illustrative and not exhaustive and since the cancellation of bail is a
harsh order as it takes away the liberty of the individual granted, hence should
not be likely issued 76 . Where one of the conditions imposed at the time of
granting bail on the accused was to pay cash deposit of Rs.10,000/- within one
month of release apart from executing personal bond of Rs.50,000/- with two
sureties, such insistence on cash deposit of Rs.10,000/- is illegal 77 .
Cancellation of bail of the accused for breach of promise on their part to
produce in Court the other accused also who are not attending the Court is
illegal78.
Petition filed under section 438 of the Code of the Criminal
Procedure for grant of anticipatory bail.
The gravity of the offence and the need for custodial interrogation of the
accused are important factors to be taken into consideration at the time of
adjudicating petition under section 438 of the Code of the Criminal
Procedure79. The order granting anticipatory bail should fix the date for the
continuation of bail to enable the accused to approach the regular Court for
bail and such order should not be a blanket order of protection from arrest80.
The order of anticipatory bail becomes operative only on arrest, and there is no
question of releasing the accused on bail unless he is arrested. Where the
Court of Sessions instead of granting anticipatory bail, directed the petitioners
to surrender before the Magistrate within 5 days, upon which the petitioners
would be released on executing a personal bond for Rs.7,500/- with two
sureties for the likesum and the petitioners failed to surrender as directed and
instead filed another petition seeking anticipatory bail but the said petition was
rejected granting extension of time for surrender for 5 days, the said order of

74
AIR 1982 SC 1463 Free Legal Aid Committee, Jamshedpur vs State of Bihar

75
2013 (3) ALT (Crl.) 453 Koneru Rajendra Prasad vs. State

76
AIR 1993 SC 1 Aslam Babalal Desai vs State of Maharashtra

77
2003 ALD (Crl.) 13 (NOC) Karn Kaleem vs. State

78
1999 (5) ALD (Crl.) 51 Harijan Muddavaram Pedda Madduleti and others vs. State of Andhra Pradesh

79
2003 (8) Scale 340 Bharat Chowdhary and another vs. State of Bihar and another

80
2008 (2) ALD (Crl.) 945 Union of India vs. Padam Narayan Agarwal
46

the Court of Sessions has been held to be lacking jurisdiction as by virtue of


the first direction in the impugned proceedings, the Sessions Judge becomes
functus officio to exercise jurisdiction under section 438 of the Code of the
Criminal Procedure and by virtue of second condition the Sessions Judge is
usurping the jurisdiction of the Magistrate 81 . For grant of anticipatory bail
reasonable belief of likelihood of arrest must be shown and mere belief is not
sufficient, and the section cannot be invoked on the basis of vague and general
allegations82.
Petition filed under section 451 of the Code of the Criminal
Procedure for custody of properties.
Section 451 clearly empowers the Court to pass appropriate orders with
regard to such property, such as-
(1) for the proper custody pending conclusion of the inquiry or trial;
(2) to order it to be sold or otherwise disposed of, after recording such evidence
as it think necessary;
(3) if the property is subject to speedy and natural decay to dispose of the
same.
In case, where such articles are not handed over either to the
complainant or to the person from whom such articles are seized or to its
claimant, then the Court may direct that such articles be kept in bank lockers.
Similarly, if articles are required to kept in police custody, it would be open to
the SH O after preparing proper panchnama to keep such articles in a bank
locker. In any case, such articles should be produced before the Magistrate
within a week of their seizure. If required, the Court may direct that such
articles be handed over back to the Investigating Officer for further
investigation and identification. However, in no set of circumstances, the
Investigating Officer should keep such articles in custody for a longer period for
the purpose of investigation and identification. For currency notes, similar
procedure can be followed. It is of no use to keep such seized vehicles at the
police stations for a long period. It is for the Magistrate to pass appropriate
orders immediately by taking appropriate bond and guarantee as well as
security for return of the said vehicles, if required at any point of time. This can
be done pending hearing of applications for return of such vehicles. In case
where the vehicle is not claimed by the accused, owner, or the insurance
company or by third person, then such vehicle may be ordered to be auctioned
by the Court. If the said vehicle is insured with the insurance company then
insurance company be informed by the Court to take possession of the vehicle
which is not claimed by the owner or a third person. If Insurance company fails

81
2012 (2) ALD (Crl.) 305 Pedda Mareppa and others vs.State of Andhra Pradesh

82
1996 (2) ALT (Crl.) 629 (AP)Additional Director General of Anti-evasion, Madras vs. Nathmal Bajaj
47

to take possession the vehicles may be sold as per the direction of the Court.
The Court would pass such order within a period of six months from the date
of production of the said vehicle before the Court. In any case, before handing
over possession of such vehicles, appropriate photographs of the said vehicle
should be taken and detailed panchnama should be prepared. For articles
such as seized liquor also, prompt action should be taken in disposing it of
after preparing necessary panchnama. If sample is required to be taken,
sample may kept properly after sending it to the chemical analyzer, if required.
But in no case, large quantity of liquor should be stored at the police station.
Similarly for the Narcotic drugs also, for its identification, procedure under
Section 451 Cr.P.C. should be followed of recording evidence and disposal. It
identity could be no the basis of evidence recorded by the Magistrate. Samples
also should be sent immediately to the Chemical Analyzer so that
subsequently, a contention may not be raised that the article which was seized
was not the same 83 . The Excise Court cannot grant interim custody of the
vehicle seized under the section 7-A read with section 8 (e) of the
A.P.Prohibition Act that was deposited before the Deputy Commissioner of
Prohibition and Excise for confiscation84. Keeping the vehicle which is subject
matter of the offence in the Court is not advisable and it is better to entrust the
same to its registered owner imposing some conditions85.

83
AIR 2003 SC 638 Sunderbhai Ambalal Desai vs. State of Gujarat

84
2015 (1) ALD (Crl) 272 K.Sasikumar vs. State of Andhra Pradesh

85
2001 (1) ALD (Crl.) 204 (SC)Ashok Kumar vs. State of Bihar and others
48

Paper Presented by
Smt. N.Anitha Reddy,
IV Addl. Junior Civil Judge,
Vijayawada.

I) The criminal Miscellaneous petitions are one of the important tasks of


the Judge in the Criminal court. The filing of Criminal Miscellaneous petition
will start even before registering the case by way of anticipatory bail petition.
2) According to Oxford Dictionary meaning. Miscellaneous means
consisting of mixture of various things that are not usually connected with
each other.
3) When a petition is filed seeking interim relief, it is registered as
Miscellaneous petition. A Memo filed before the court of Law need not be
treated as petition. The main difference between petition and Memo is that
Memo is nothing but bringing a fact to notice before a court of law and no relief
can be sought for in a Memo and notice to the opposite party is not required.
However, where a petition is filed requiring some relief from the court, a notice
to opposite party is mandatory is most of the cases. No order be passed on
Memo (Held in a decision held in between Syed Yousuf AliVs.Mohd.Yousuf
and Others reported in 2016(3) ALD 235
4) In nut-shall it can called a petition other than a main case. When a
Miscellaneous petition is filed in criminal cases, it is registered a criminal
Miscellaneous petition. As soon as a petition is filed, primary duty of the court
is to see whether the relief sought is provided under criminal procedure code or
not. If it is provided, the petition shall be cancelled in public court by
assigning a particular Miscellaneous number and notices shall be ordered to
the opposite party. Having heard both the parties, a speaking order has to be
pronounced. In day to day,criminal courts come across several Miscellaneous
petitions seeking different reliefs. The petitions filed U/s.239 Cr.P.C, Sec.227
Cr.P.C, Sec.311 Cr.P.C,Sec.319 Cr.P.C, Sec.451 Cr.P.C and Sec.457 Cr.P.C and
also used to file application U/s.90 and 91 Cr.P.C. and Sec.125(3) Cr.P.C for
necessary reliefs. In this paper, I want to say some types of Criminal
Miscellaneous Petitions.
5) When a petition is filed under section 239 of Cr.P.C in Magistrate’s Court
and under section 227 Cr.P.C in Sessions court seeking discharge of the
accused from the Warrant case of Sessions case,before allowing that petition,
the court has to see whether there is any primafacie case appearing against the
accused. The court sifts the evidence in order to find out whether or not
allegations made are groundless so as to order discharge. The court is not
expected to go deep into the matter and hold material would not warrant a
conviction. What needs to be considered is whether there is ground for
presumption that offence has been committed and not whether ground for
49

convicting the accused has been made out of it. (State of Tamilnadu by
Inspector of Police, Anti corruption Vs.Suraj Rajan and others reported in
2014(3) SCC (Crl.)529)
6) When a petition is filed before Judicial Magistrate of I Class court seeking
discharge of the accused in a case exclusively triable by the court of Sessions,
the court cannot discharge the accused in view of the decision report in AIR
1978 (SC) 514 held in between Sanjay Gandhi Vs.Union of India. Some times,
the counsel for the defence comes with petition under section 310Cr.P.C
praying the court to make local inspection, but it is not at all a desirable for the
court to do so. In a decision held in between Maleedu Venkanna Vs.State of
Andhra Pradesh reported in 2003 (1) Ald (Crl.) 117, our Hon’ble High Court
held that Local inspection by presiding officer is not at all a step in Criminal
proceedings in normal parlance.
7) When a petition is filed seeking for discharge of the accused, the court
cannot look into the documents produced by the accused vide decision
reported in AIR 2008 SC 1903 held in between Hem Chand Vs.State of
Jharkhad.
8) Generally we come across with petitions filed under section 311 Cr.P.C.
praying the court to recall witness who were already examined. The Court has
to see whether recall of witness is necessary to come to just conclusion vide
Rama Paswan and others Vs.State of Jharkhand reported in 2007(2) ALD
(SC)494.
9) In Judicial Magistrate of I Class courts and Family courts, criminal
miscellaneous petitions are filed U/s.125(3) of Cr.P.C for recovery of future
maintenance. The future salary of husband can be attached vide a decision
held in between Mani Vs.Jaya Kumar reported in 1998 Crl.L.J.3708.
10) A criminal Miscellaneous petition for discharge of accused in summons
case is not at all maintenable. It is held by Apex court in a case reported in
AIR 2004 SC 4674 held in between Adalat Prasad Vs.Rooplal Jindal.
11) When the prosecution filed a petition U.sec.319 Cr.P.C praying the court
to proceed against to her persons other than the accused who are facing trial,
the court can allow the said petition basing on examination in chief itself.
There is no need of giving opportunity to proposed accused for cross
examination vide Gangadara Nandagiri Swamiju Vs.State of A.P. reported in
2002 (1) ALD 680.
12) sometimes the counsel for the defence files petition U/s.91 Cr.P.C to
summons the documents. At the time of framing charges, it is be keep in
mind, the court has to examine the material which is produced by the
prosecution and it cannot summon any document at the instance of the
accused. This preposition of law is laid down by Hon’ble Supreme court of
50

India in acase reported in AIR 2005 SC 359 held in between State of Orissa
Vs.Dobendra Nath Padhl.
13) In cases relating to the petitions for return of case property for interim
custody, the court shall not retain the property unnecessarily and it is required
to order for interim custody after ascertaining the ownership of the property
with a direction to produce the same as and when required by the court. The
guidelines regarding the return of property by the court discussed in a decision
reported in 2003 (1) ALD (Crl.) 8 held in between Sunderbhal Ambalal Desai
Vs.State of Gujarat.
14) The other Miscellaneous petitions which are filed before the Criminal
Courts regularly are the petitions under Section 256 and 317 of Cr.P.C. In
addition to the above Miscellaneous petitions, another important Miscellaneous
petitions used to be filed by the accused in criminal cases are the bail petitions
U/s.436 Cr.P.C and Sec.437 Cr.P.C before the Judicial Magistrate of I Class
courts and Sec.438 Cr.P.C and 439 Cr.P.C before the Sessions court for
seeking the bail. However, there is a separate topic in this workshop for
discussion about the bails. Therefore, I am not intending to refer anything
more in respect of the bail petitions.
15) The Criminal Court shall endeavor to dispose of the Miscellaneous
petition as early as possible because,it effects entire criminal justice system.
The dublous Miscellaneous petitions which would be filed to drag on the case
without any being of decision of the court, those petitions shall be decided
without any delay and filing such petitions shall be disposed off with cost and
it is incumbent upon the court to deprecate such petitions.
16) As and when petition is filed, the primary duty of the court is that
whether such petitions are maintainable as per law and having come to
conclusion that such petitions are maintainable, court shall assign a number
to the petitions and after that, notice shall be ordered to the opposite parties.
Having heard both the parties, the court shall pass an order and such order
shall be a speaking order.
51

Paper Presented by
Smt. B.M.R. Prasanna Latha,
Addl. Junior Civil Judge,
Tiruvuru.

‘Miscellaneous Application’ means interlocutory application/criminal


miscellaneous petition/office report for directions in a dismissed/disposed of
matter;
2) In any case Civil/Criminal/Writ when any Miscellaneous Petition
is moved, the same is registered as Civil Miscellaneous Petition/Criminal
Miscellaneous Petition/or as Civil/Criminal Writ Miscellaneous Petition. There
is no worrying distinction, all are subject to jurisdiction invoked by the
petitioner.
SCRUTINY AND PROCESSING OF APPLICATIONS
The following requirements shall be ensured for the purpose of
registration of an interlocutory application or miscellaneous application,
wherever applicable, in terms of the following check list:
1. Whether prescribed Court fee has been paid, wherever applicable?
2. Whether case number has been correctly mentioned?
3. Whether cause title of the parties is correct?
4. Whether the applicant is a party in the main case or not?
5. Whether memo of parties has been filed, in case of application for
directions?
6. Whether particulars of the impugned order are correct?
7. Whether the provision of the Rules under which an application is
filed has been mentioned?
8. Whether the application has been filed by the advocate on-record
in the main case; if not, whether ‘No Objection Certificate’ has been taken from
the earlier advocate on-record, subject to the exception in Order IV Rule 15 of
the Rules?
9. Whether a copy of the application has been served on the opposite
parties, who have entered appearance?
10. Whether copies of annexures, if filed, along with the application
have been certified to be true copies?
11. Whether annexures marked in the index and body of the
application have been put in chronological order?
12. Whether custody certificate from jail authority has been filed in
case of bail application?
13. Whether application for exemption from filing certified copy or
official translation has been filed, wherever required?
14. Whether contents of the application and annexures are clear,
sharp, legible, in proper font size and in double space on one side of the paper?
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15. Whether relief sought by the petitioner/applicant has been clearly


stated?
16. Whether details of the case and particulars of the Trial Court/High
Court or this Court in the prayer portion have been corrected mentioned?
17. Whether the main prayer clearly indicates the purpose of the
application?
18. Whether affidavit has been duly filled/signed by the party and
notarized by the Notary or any other Authority under Order IX Rule 7 of the
Rules, without manual corrections, unless initialled?
19. Whether the application has been properly worded without any
unnecessary remarks against the Bench or any Judge?
20.(a) In case of application for intervention or impleadment, it should be
clearly mentioned whether impleadment is sought as respondent or petitioner;
or intervenor, as the case may be.
(b) Whether full address of the party seeking impleadment or
intervention has been given?
21. No impleadment or intervention application shall be entertained in
a disposed of main case, unless otherwise ordered by the Court.
22.(a) In case of application for substitution, proper heading shall be
given and it should clearly indicate as to which petitioner or respondent has
died.
(b) The particulars of legal representative(s) of the deceased party
should be stated, such as, relationship, address, minor or major, age and line
age.
(c) Death certificate having proper particulars, including name,
parentage, age and date of death should be filed.
(d) If the application for substitution is filed by the proposed legal
representative of the deceased party, it shall be accompanied by vakalatnama,
except in the case of an application filed by a party other than the proposed
legal representative of the deceased party.
(e) If the application for substitution is barred by limitation, it shall be
accompanied by an application to set aside the abatement and application for
condonation of delay in filing the said applications, wherever applicable.
(f) Delay shall be calculated from the date of death of a party or
abatement, as the case may be.
NOTE
If an application for substitution to bring on record a legal representative
of a deceased party is not filed within ninety days from the date of death, the
case automatically abates. Within sixty days from the date of abatement, an
application to set aside the abatement along with application for substitution
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shall be filed. Thereafter, an application under Section 5 of the Limitation Act


seeking condonation of delay shall also accompany the applications.
23.(a) If a miscellaneous application for restoration, recall or rehearing a
case or application has been filed after the expiry of a period of thirty days from
the date of order, it shall be accompanied by an application for condonation of
delay.
(b) A Record of Proceeding or order dismissing or disposing of the
main case shall be annexed to the application.
(c) If a case or an application has been dismissed peremptorily for
non-compliance in default or failure to take any steps, the compliance shall be
pre-requisite for filing and registration of the miscellaneous application.
(d) If a miscellaneous application has been filed after the expiry of a period
of two months from the date of the order, the paper books of the main case
shall also be filed by the party or advocate on-record, except in case of a
transfer petition, where the paper books shall be filed after one month.
(e) If a miscellaneous application is filed within two months from the
date of the order and within one month in case of transfer petition, the paper
books of the main case shall be immediately requisitioned from the Paper
Books Section, so that they may not be destructed after the stipulated period of
preservation.
24.(a) In case an application is found to be defective, notice under Order
VIII Rule 6(3) and (4) of the Rules shall be given to the applicant requiring him
to cure the defect(s) within a period not exceeding twenty eight days, in
aggregate.
(b) In case the defects are not removed within the period stipulated in
the notice, the application shall be placed before the Registrar for orders under
the said provision.
25. In case an application discloses no reasonable cause or is frivolous
or contains scandalous matter, it shall be placed before the Registrar for
appropriate orders under Order XV Rule 5 of the Rules.
APPLICATIONS
1. On receipt of an interlocutory application or miscellaneous application
or any document, the diarist shall hand over the same, under acknowledgment,
to the concerned dealing Assistant, who shall place the same on the record of
the main case in which it has been filed on the same day, if possible, but, in no
case later than the following working day.
2. Every interlocutory application or miscellaneous application, besides
bearing a centralized annual serial number against which it is registered in the
register of petitions in the computer, shall also bear a serial number in the
chronological order of its presentation in the proceeding.
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REASONS FOR DISMISSAL OF INTERLOCUTORY APPLICATIONS OR


MISCELLANEOUS APPLICATIONS
The affidavit, accompanying a main case, an interlocutory application or
a miscellaneous application dismissed for -
(i) default of appearance, or
(ii) failure to take any step within the specified time,
(a) shall state the circumstances under which such default was made,
and
(b) whether or not the party whose main case or interlocutory application
or miscellaneous application was dismissed, had previous to such dismissal,
engaged an advocate to conduct the main case or interlocutory application or
miscellaneous application.

CRIMINAL MATTERS
The cause title of every memorandum of appeal or petition shall contain--
(I) the name, description and address with police station of each appellant
or petitioner;
(ii) the name, description and address with police station of each person,
who is proposed to be made the opposite party;
(iii) the status (whether prosecution, complainant, applicant, accused or
non-applicant, etc.) of the parties in the court below, wherever required.

GENERAL
1. No miscellaneous application for intervention, impleadment or
direction by a third party shall be entertained, unless otherwise directed by the
Court.
2. In the absence of a provision in any Statute or Rule for filing a main
case, application for leave to file such case shall accompany the main case.
3. No case or document shall be accepted, unless prescribed court fee is
paid.
4. No application or miscellaneous application shall be entertained
where review of a judgment or order is sought and where provisions of Order
XLVII of the Rules are attracted. In such a case, application for review shall be
filed.
5. No miscellaneous application for restoration or recall shall be
entertained in a main case dismissed peremptorily on account of failure to take
steps within the specified period, unless the defects, so notified, have been
cured.
6. A petition for special leave to appeal may be preferred against an
interlocutory order made in a case under Section 21 of Consumer Protection
Act, 1986.
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7. An application for condonation of delay under Section 20 of the 74


Contempt of Courts Act, 1971, shall accompany a contempt petition in case
such proceeding has been initiated after the expiry of a period of one year from
the date on which the contempt is alleged to have been committed.
8. Where limitation has not been prescribed by the Rules or under
any other provision of law, every interlocutory application or miscellaneous
application shall be filed within thirty days from the date of the order or the
cause and shall be accompanied by an application for condonation of delay in
case the same is barred by limitation.
9. A copy of the judgment, referred to in the impugned order and
reported in the journal, need not be filed, except in cases where the judgment
has been reported in a local law journal, a photocopy or a typed authenticated
copy thereof shall be filed.
10. Under Order XVI Rule 4(1) of the Rules, an appellant, whose
appeal has been dismissed for default of appearance, may, within thirty days of
the order, present a petition praying that the appeal may be restored.
11. Under Order XVI Rule 4(2) of the Rules, where an appeal is heard
ex parte and judgment is pronounced against the respondent, he may apply to
the Court to re-hear the appeal.
12. Under Order XX Rule 11 of the Rules, where an appeal has been
dismissed for non-prosecution in terms of Rule 10 thereof, the appellant may,
within thirty days of the order, present a petition praying that the appeal may
be restored.
13. No petition shall lie against the President and Governors and
Rajpramukhs of the States as they are not answerable for the duties of their
offices under Article 361 of the Constitution.
14. No Judicial Officer, who has disposed of the case in the Court
below, shall be impleaded as the contesting party respondent in the main case.
15. No writ of mandamus shall lie for an order of restatement to an
office, which is essentially of a private character, nor can such an 75
application be maintained to secure the performance of obligations owed by a
company towards its workmen or to resolve any private dispute.
16. Whenever the correctness of the judgment of this Court is involved
in a writ petition, the certificate by the advocate on-record filing the petition
shall invariably accompany the petition as under: “Though he advised the
petitioner that the judgment of this Court binds them and cannot canvass its
correctness and still, in spite of such advice, the party insisted upon filing the
writ petition.”
17. The case shall contain the date of drafting that may be of the same
or prior to the date of filing.
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18. The affidavit enclosed with the petition shall be of the same or
subsequent date of the drafting of the petition and shall contain the date,
number of paragraphs and pages of the petition.
19. Vakalatnama shall be of the same or the date prior to the drafting
date of the petition.
20. The date of attestation on the vakalatnama by the Jail
Superintendent shall be the same or subsequent to the date on which it was
executed by the accused person.
21. In case of re-filing, the advocate on-record shall give a certificate
that the defects communicated have been removed and no addition or
alteration in the case, as originally filed, has been made. In case of material
changes, such as, facts, paragraphs or page numbers, fresh affidavit shall be
filed.
22. Upon re-filing of the case, the advocate on-record or advocate or
party in-person, as the case may be, shall get an endorsement from the counter
Assistant on the converse of the token that the case has been re-filed. He shall
take back the paper book of the defective case retained by the Registry on the
same day. No request for return of such paper book shall be accepted after two
days.
23. The case file/paper book shall have one common index, as given
below, having running pagination as per Column (iii), corresponding to the
documents and/or applications to be kept in 76 Part I of the case file. The
applications to be listed before the Court and Judge in Chamber/Court of
Registrar shall be placed in Part I and Part II respectively. No applications
included in Part II shall form part of the paper book.