Criminal Procedure Code, 1973

POSTED BY CSGAUTAM JANUARY 8, 2012 LEAVE A

COMMENT
Organization of police, prosecutor, defense counsel
and prison authorities and their functions, duties,
and powers.
Police
The ordinary criminal courts derive their existence from
CrPC. However, CrPC does not say anything about the
constitution of Police. It assumes the existence of police
and devolves various powers and responsibilities on to it.
Functions
As per The Police Act, 1861, the police force is an
instrument for the prevention and detection of crime.
Organization
Every state establishes its own police force which is
formally enrolled. The force consists of such number of
officers and men and is constituted in such manner as the
state govt. may decide from time to time. The overall
administration of police in the entire state is done by
Director General of Police. The administration of police in
a district is done by District Superintendent of Police
under the general control and direction of District
Magistrate who is usually the Collector of the district.
Every police officer appointed to the police force, other
than Inspector General of Police and District
Superintendent of Police, receives a certificate in
prescribed form by virtue of which he is vested with the
powers, functions and privileges of a police officer.

The Police Act, 1888 also empowers the Central Govt to

create special police districts and to extend the
jurisdiction of police of any state to that district. The
Police Act 1949, creates a police force for Union
Territories.
Powers
1. The Cr P C confers specific powers on the members of
police force who are enrolled as police officers. These
powers include power to make an arrest, search, and
investigate. Wider powers have been given to police
officers in charge of a police station. As per Section 2(s),
police station means any post or place that is generally or
specially designated by the state govt as a police station.
Further, as per Section 2(o) officer in charge of a police
station includes the officer who is present at the police
station and is next in rank to the police officer in charge,
if he is on leave or is absent. This only increases the
importance of the police officer in charge of a police
station.
2. Section 36 of CrPC specifies that officers of police who
are superior in rank to police officer in charge of a police
station can exercise all the powers of that police officer. In
the case of State of Bihar vs J A C Saldanha SCC
1980, SC held that if the Inspector General (Vigilance) is
an officer superior to the officer in charge of the police
station he can exercise the powers of that officer through
out the territory to which the superior officer has been
appointed, which, in this case is the entire territory of
Bihar.
Duties

Prosecutor
A crime is a wrong not only against an individual but is
also against the society. It is because of this reason that
the state, which represents the collective of people,
participates in the criminal trial of an accused, specially if
the crime is of cognizable nature. Public Prosecutor or
Assistant Public Prosecutor is the state counsel for such
trials. As per section 2(u), Public Prosecutor means any
person appointed under Section 24 and includes any
person acting under the directions of the public
prosecutor. Section 24 of CrPC specifies the rules for
appointment of Public Prosecutor. A person shall be
eligible to be appointed in High Court as Public Prosecutor
if he has been in practice as an advocate for not less than
seven years. The appointment can be made only after
consultation with the High Court. Further, the central
govt. can appoint a Public Prosecutor for conducting in a
high court any prosecution, appeal, or other proceeding
on behalf of the Central Govt.
Assistant Public Prosecutor are appointed under Section
25. It authorizes the State Govt. to appoint one or more
APPs for every district for conducting any case in Court of
Magistrates. No police officer is allowed to be appointed
as APP.
Duties
Duty of a public prosecutor mainly consists in conducting
the prosecution on behalf of the state. His goal is not
merely to produce a conviction but the help the court
arrive at a just decision. He also appears as the state
counsel in criminal appeals, revisions, and such other

matters in the Session Courts and High Court. It is

important to note that he does not appear on behalf of
the accused.
Powers
1. As per Section 301, a Public Prosecutor or Assistant
Public Prosecutor has the authority to appear and plead
before any court in any case entrusted to him.
2. As per Section 321, he can withdraw from the
prosecution against any person with the consent of the
court.
According to the pattern set by CrPC, Public Prosecutors
conduct the proceedings in Session Courts and the High
Courts and Assistant Public Prosecutors are appointed for
conducting prosecution in Magistrates Courts. As per
prevailing practice, in respect of cases initiated on police
reports, the prosecution is conducted by the APP and in
cases initiated on a private complaint the prosecution is
either conducted by the complainant himself or by his
duly authorized counsel.
Defense Counsel
As per Section 303, any person accused of an offence
before a Criminal Court has a right to be defended by a
pleader of his choice. Such pleaders are not in regular
employment of the state and a paid remuneration by the
accused person. Since, a qualified legal practitioner on
behalf of the accused is essential for ensuring a fair
trial, Section 304 provides that if the accused does not
have means to hire a pleader, the court shall assign a
pleader for him at states expense.
At present there are several schemes through which an

indigent accused can get free legal aid such as Legal Aid
Scheme of State, Bar Association, Legal Aid and Service
Board, and Supreme Court Senior Advocates Fee Legal
Aid Society. The Legal Services Authorities Act, 1987 also
provides free legal aid for the needy.
Prison Authorities
CrPC presumes the existence of Prisons and Prison
authorities. The code empowers magistrates and judges
under certain circumstances to order detention of under
trial prisoners in jail during the pendency of proceedings.
The code also empowers the courts to impose sentences
of imprisonment on convicted persons and to send them
to prison authorities. However, the code does not make
specific provisions for creation and administration of
prison authorities. These matters are dealt with in
separate acts such as The Prisons Act 1894, The Prisoners
Act, 1900, and the Probation of Offenders Act 1958.
Arrest
Arrest means apprehension of a person by legal authority
so as to cause deprivation of his liberty. Thus, after arrest,
a persons liberty is in control of the arrester. Arrest is an
important tool for bringing an accused before the court as
well as to prevent a crime or prevent a person suspected
of doing crime from running away from the law. Cr P C
contemplates two types of arrests an arrest that is
made for the execution of a warrant issued by a
magistrate and an arrest that is made without any
warrant but in accordance with some legal provision that
permits arrest.
Section 41 to 44 contain provisions that govern the

arrest of a person by police and private citizens,

while Section 46 describes how an arrest is a made.
Arrest without warrant
There are situations when a person may be arrested by a
police officer, a magistrate or even private citizen without
a warrant. These are described in Section 41, 42, 43, and
44 as follows
Arrest by Police Section 41. When police may
arrest without warrant (CIPSODOBO)
(1) Any police officer may without an order from a
Magistrate and without a warrant, arrest any person
(a) who has been concerned in any cognizable offence, or
against whom a reasonable complaint has been made, or
credible information has been received, or a reasonable
suspicion exists, of his having been so concerned; or
(b) who has in his possession without lawful excuse, the
burden of proving which excuse shall lie on such person,
any implement of house-breaking; or
(c) who has been proclaimed as an offender either under
this Code or by order of the State Government; or
(d) in whose possession anything is found which may
reasonably be suspected to be stolen property and who
may reasonably be suspected of having committed an
offence with reference to such thing; or
(e) who obstructs a police officer while in the execution of
his duty, or who has escaped, or attempts to escape,
from lawful custody; or
(f) who is reasonably suspected of being a deserter from
any of the Armed Forces of the Union; or
(g) who has been concerned in, or against whom a

reasonable complaint has been made, or credible

information has been received, or a reasonable suspicion
exists, of his having been concerned in, any act
committed at any place out of India which, if committed
in India, would have been punishable as an offence, and
for which he is, under any law relating to extradition, or
otherwise, liable to be apprehended or detained in
custody in India; or
(h) who, being a released convict, commits a breach of
any rule made under sub-section (5) of section 356; or
(I) for whose arrest any requisition, whether written or
oral, has been received from another police officer,
provided that the requisition specifies the person to be
arrested and the offence or other cause for which the
arrest is to be made and it appears therefrom that the
person might lawfully be arrested without a warrant by
the officer who issued the requisition.
(2) Any officer in charge of a police station may, in like
manner, arrest or cause to be arrested any person,
belonging to one or more of the categories of persons
specified in section 109 or section 110.
In the case of Joginder Kumar vs State of UP, CrLJ,
1994, it was held that no arrest can be made merely
because it is lawful to do so. There must be a justifiable
reason to arrest. Further, in State vs Bhera, CrLJ, 1997,
it was held that the "reasonable suspicion" and
"creditable information" must relate to definite averments
which must be considered by the Police Officer himself
before he arrests the person.

Section 42 allows a police officer to arrest a person for a

non-cognizable offence, if he refuses to give his name
and residence. As perSection 42(1), when any person
who, in the presence of a police officer, has committed or
has been accused of committing a non-cognizable offence
refuses, on demand of such officer, to give his name and
residence or gives a name or residence which such officer
has reason to believe to be false, he may be arrested by
such officer in order that his name or residence may be
ascertained.
However, as per sub clause (2), the person must be
released when the true name and residence of such
person have been ascertained. He may be required to
execute a bond, with or without sureties, to appear before
a Magistrate if necessary.
Provided that, if such person is not resident in India, the
bond shall be secured by a surety or sureties resident in
India.
Further, as per sub clause (3), should the true name and
residence of such person not be ascertained within
twenty-four hours from the time of arrest or should he fail
to execute the bond, or, if so required, to furnish
sufficient sureties, he shall forthwith be forwarded to the
nearest Magistrate having jurisdiction.
Arrest by Private person
Even private persons are empowered to arrest a person
for protection of peace in certain situations. This is
important because police cannot be present at every
nook and corner and it is up to private citizens to protect
the society from disruptive elements or criminals. As

per section 43(1), any private person may arrest or

cause to be arrested any person who in his presence
commits a non-bailable and cognizable offence, or any
proclaimed offender, and, without unnecessary delay,
shall make over or cause to be made over any person so
arrested to a police officer, or, in the absence of a police
officer, take such person or cause him to be taken in
custody to the nearest police station. Thus, if a person is
drunk and is committing assault on others, he may be
rightly arrested by any citizen and taken to the nearest
police station.
However, it is important to note that this power can be
exercised only when the person making an arrest is under
a bona fide impression that a non-bailable and cognizable
office is being committed in his presence. One does not
have a right to arrest on mere suspicion or on mere
opinion that an offence has been committed.
Procedure on arrest by private person
As mentioned above, the private person must take the
arrested person to the police officer or police station
without any reasonable delay. If he keeps the person in
his own custody, he will be guilty of wrongful confinement
as given in Section 342 of IPC.
As per section 43(2), If there is reason to believe that
such person comes under the provisions of section 41, a
police officer shall re-arrest him. Further, as per section
43(3), if there is reason to believe that he has committed
a non-cognizable offence, and he refuses on the demand
of a police officer to give his name and residence, or
gives a name or residence which such officer has reason

to believe to be false, he shall be dealt with under the

provisions of section 42; but if there is no sufficient
reason to believe that he has committed any offence, he
shall be at once released.
A new provision has been incorporated as Section 50A,
which makes it obligatory for the police officer or any
other person making an arrest to give the information
regarding such arrest and place where the arrested
person is being held to any of his friends, relatives or
such other persons as may be disclosed or nominated by
the arrested person for the purpose of giving such
information. Further, the police officer shall inform the
arrested person of his rights under subsection as soon as
he is brought to the police station. He must make an
entry of the fact as to who has been informed of the
arrest of such person in a book to be kept in the police
station in such form as may be prescribed in this behalf
by the State Government. It is the duty of the Magistrate
before whom such arrested person is produced, to satisfy
himself that the requirements of this section has been
complied with in respect of such arrested person.
Arrest by Magistrate
As per Section 44(1), when any offence is committed in
the presence of a Magistrate, whether Executive or
Judicial, within his local jurisdiction, he may himself arrest
or order any person to arrest the offender, and may
thereupon, subject to the provisions herein contained as
to bail, commit the offender to custody. Further, (2) Any
Magistrate, whether Executive or Judicial, may at any
time arrest or direct the arrest, in his presence, within his

local jurisdiction, of any person for whose arrest he is

competent at the time and in the circumstances to issue
a warrant.
Important thing to note here is that magistrates have
wider power than private citizen. A magistrate can arrest
on the ground of any offence and not only on cognizable
offence. As held in the case of Swami Hariharanand
Saraswati vs Jailer I/C Dist. Varanasi, AIR 1954, the
arrested person must be produced before another
magistrate within 24 hours, otherwise his detention will
be illegal.
Arrest how made
Section 46 describes the way in which an arrest is
actually made. As per Section 46(1), unless the person
being arrested consents to the submission to custody by
words or actions, the arrester shall actually touch or
confine the body of the person to be arrested. Since
arrest is a restraint on the liberty of the person, it is
necessary for the person being arrested to either submit
to custody or the arrester must touch and confine his
body. Mere oral declaration of arrest by the arrester
without getting submission to custody or physical
touching to confine the body will not amount to arrest.
The submission to custody may be by express words or
by action. For example, as held in the case ofBharosa
Ramdayal vs Emperor AIR 1941, if a person makes a
statement to the police accusing himself of committing
an offence, he would be considered to have submitted to
the custody of the police officer. Similarly, if the accused
proceeds towards the police station as directed by the

police officer, he has submitted to the custody. In such

cases, physical contact is not required. In case
of Birendra Kumar Rai vs Union of India, CrLJ, 1992,
it was held that arrest need not be by handcuffing the
person, and it can also be complete by spoken words if
the person submits to custody.
Section 46(2) If such person forcibly resists the
endeavor to arrest him, or attempts to evade the arrest,
such police officer or other person may use all means
necessary to effect the arrest. Thus, if the person tries to
runaway, the police officer can take actions to prevent his
escape and in doing so, he can use physical force to
immobilize the accused. However, as per Section 46(3),
there is no right to cause the death of the person who is
not accused of an offence punishable with death or with
imprisonment for life, while arresting that person. Further,
as per Section 49, an arrested person must not be
subjected to more restraint than is necessary to prevent
him from escaping.
Due to concerns of violation of the rights of women, a
new provision was inserted in Section 46(4) that forbids
the arrest of women after sunset and before sunrise,
except in exceptional circumstances, in which case the
arrest can be done by a woman police officer after
making a written report and obtaining a prior permission
from the concerned Judicial Magistrate of First class.
In Kultej Singh vs Circle Inspector of Police, 1992, it
was held that keeping a person in the police station or
confining the movement of the person in the precincts of
the police station amounts to arrest of the person.

Rights of an Arrested person (GBMLLIM)

Cr P C gives wide powers to the police for arresting a
person. Such powers without appropriate safeguards for
the arrested person will be harmful for the society. To
ensure that this power is not used arbitrarily, several
restraints have been put on it, which, indirectly, can be
seen as recognition of the rights of a person being
arrested. Further, once arrested, a person is already at a
disadvantage because of his lack of freedom and so he
cannot take appropriate steps to defend himself. Thus, to
meet the needs of "fair trial", several provisions are given
in CrPC, that give specific rights to an arrested person.
These rights can be described as follows
1. Right to know the grounds of arrest Section
50(1) According this provision, every police officer or
other person arresting any person without warrant shall
forthwith communicate to him full particulars of the
offence for which he is arrested or other grounds for such
arrest.
Similarly, when a subordinate officer is deputed by a
senior police officer to arrest a person under Section 55,
the subordinate officer must notify the person to be
arrested of the substance of the written order given by
the senior officer, which clearly specifes the offence for
which he is being arrested. The same provision exists in
case of an arrest made under a warrant in Section 75. In
this case, the police officer or any person making arrest
under warrat must notify the substance of the warrant to
the person being arrested and if required, must show the
warrant. As held in Satish Chandra Rai vs Jodu

Nandan Singh, ILR 26 Cal 748, if the substance of the

warrant is not notified, the arrest would be unlawful.
In Udaybhan Shuki vs State of UP 1999 CrLJ, All
HC held that right to be notified of grounds of arrest is a
precious right of the arrested person. This allows him to
move the proper court for bail, make a writ petition for
habeas corpus, or make appropriate arrangements for his
defence.
This right is also a fundamental right given by the
Constitution in Art 22(1), which says, "No person who is
arrested shall be detained in custody without being
informed, as soon as may be, of the grounds for such
arrest nor shall he be denied the right to consult, and to
be defended by, a legal practitioner of his choice.". It
embodies two distinc rights the right to be told of the
grounds of arrest and the right to consult a legal
practioner of his choice. The second right of consulting a
legal practitioner of his choice actually depends on the
first right of being told about the grounds of arrest. If the
person doesnt know why he is being arrested, he cannot
consult a legal practioner meaningfully. In Harikishan vs
State of Maharashtra AIR 1962, SC held that the
grounds of arrest must be communicated to the person in
the language that he understands otherwise it would not
amount to sufficient compliance of the constitutional
requirement.
2. Right to be informed of the provision for bail
Section 50(2) Some offences that are not very serious
do not require the offender to be kept in custody. For such
offences, Cr P C allows the offender to ask for bail as a

matter of right. However, not every person knows about

Cr P C and so they cannot know that they can get bail
immediately. Thus, Section 50(2), provides that where a
police officer arrests any person other than a person
accused of a non-bailable offence without warrant, he
shall inform the person arrested that he is entitled to be
released on bail and that he may arrange for sureties on
his behalf.
3. Right to be taken to magistrate without delay
Holding a person in custody without first proving that the
person is guilty is a violation of human rights and is
completely unfair. At the same time, holding a person in
custody is necessary for the police to carry on their
investigation of a crime. These two are contradictory
requirements and a balance must be found between
them. Since police has arrested the person, it cannot be
the agency that determines whether person must be kept
confined further. This can only be decided by a
competent judicial authority. This is exactly what is
embodied in Art 22(2) that gives a fundamental right to
the arrested person that he must be produced before a
magistrate within 24 hours of arrest. It says, "Every
person who is arrested and detained in custody shall be
produced before the nearest magistrate within a period of
twenty-four hours of such arrest excluding the time
necessary for the journey from the place of arrest to the
court of the magistrate and no such person shall be
detained in custody beyond the said period without the
authority of a magistrate."
Section 57 of CrPC also contains a similar provision for a

person arrested without a warrant. It says, "No police

officer shall detain in custody a person arrested without
warrant for a longer period than under all the
circumstances of the case is reasonable, and such period
shall not, in the absence of a special order of a Magistrate
under Section 167, exceed twenty four hours exclusive of
the time necessary for the journey from the place of
arrest to the Magistrates court."
Section 76 contains a similar provision for a person
arrested under a warrant. It says, "The police officer or
other person executing a warrant of arrest shall (subject
to the provisions of section 71 as to security) without
unnecessary delay bring the person arrested before the
court before which he is required by law to produce such
person. Provided that such delay shall not, in any case,
exceed twenty-four hours exclusive of the time necessary
for the journey from the place of arrest to the
Magistrates court."
Thus, it can be see that it is a very important right that is
meant to prevent abuse of police power and to prevent
the use of a police station as a prison. It prevents arrest
merely for the purpose of extracting confessions. The
arrested person gets to be heard by a judicial authority
that is independent of the police.
In Khatri (II) vs State of Bihar 1981 SCC, SC has
strongly urged upon the State and its police to ensure
that this constitutional and legal requirement of bringing
an arrested person before a judicial magistrate within 24
hours be scrupulously met. This is a healthy provision
that allows magistrates to keep a check on the police

investigation. It is necessary that the magistrates should

try to enforce this requirement and when they find it
disobeyed, they should come heavily upon the police.
Further, in Sharifbai vs Abdul Razak, AIR 1961, SC
held that if a police officer fails to produce an arrested
person before a magistrate within 24 hours, he shall be
held guilty of wrongful detention.
Constitutional Perspective on Art 22(2) On the face
of it, this article seems to be applicable on arrests with or
without warrants. However, in State of Punjab vs Ajiab
Singh AIR 1953, SC observed that it applies only to
cases of arrests without warrant because in case of an
arrest with warrant, the judicial mind has already been
applied while issuing the warrant. So further safeguard is
not required. This decision has been widely criticized. In
any case, the proviso to Section 76 unmistakably
provides that a person arrested under a warrant must be
produced before a magistrate within 24 hours.
4. Right to consult Legal Practitioner Art 22 (1)
For conducting a fair trial it is absolutely necessary that
the accused person is able to consult with a legal
practitioner whom he trusts. Second part of Article 22(1)
gives this fundamental right to an arrested person. It says
that no person who is arrested shall be denied the right to
consult, and to be defended by, a legal practitioner of his
choice. However, this does not mean that the State must
provide a legal practitioner of the persons choice. It is up
to the arrested person to contact and appoint a such a
legal practitioner. The States responsibility is only to
ensure that he is not prevented from doing so.

The same right is also provide by CrPC under Section

303, which says, "Any person accused of offence before a
Criminal Court or against whom proceedings are
instituted under this Code, may of right be defended by a
pleader of his choice."
5. Right to free legal aid Art 21 and Section 304
A person who does not have the means to hire a legal
practitioner is unable to defend himself appropriately.
This casts a cloud on the fairness of the trial.
Therefore, Section 304 provides that where, in a trial
before the Court of Session, the accused is not
represented by a pleader, and where appears to the
Court that the accused has not sufficient means to
engage a pleader, the Court shall assign a pleader for his
defense at the expense of the State. In Khatri (II) vs
State of Bihar 1981 SCC, Supreme Court has also held
that access to a legal practitioner is implicit in Article
21, which gives fundamental right to life and liberty. The
state is under constitutional mandate to provide free legal
aid to an indigent accused person and this constitutional
obligation arises not only when the trial is commenced
but also when the person is first produced before a
magistrate and also when he is remanded from time to
time. In Suk Das vs Union Territory of Arunachal
Pradesh 1986, SCC, SC has held that non-compliance of
this requirement or failure to inform the accused of this
right would vitiate the trial entailing setting aside of the
conviction and sentence. The right of an accused person
to consult his lawyer begins from the moment of his
arrest. The consultation with the lawyer may be within

the presence of a police officer but not within the police

officers hearing. SC also held that it is the duty on all
courts and magistrates to inform the indegent person
about his right to get free legal aid.
6. Right to be informed about the right to inform of
his arrest to his relative or friend -In order to ensure
a fair trial and to improve people-police relationship, the
Supreme Court, in Joginder Kumar vs State of UP
1994, formulated the rules that make it mandatory on
the police officer to inform one friend, relative, or any
other person of the accused persons choice, about his
arrest. These rules were later incorporated in CrPC under
section 50 A in 2005.
Section 50 A (1) provides that once the arrested person
is brought to the police station, the police officer must
inform a relative or a friend, or any other person of the
arrested persons choice, about his arrest. He must also
tell the place where the arrested person has been kept.
This is a very important step in ensuring justice with the
arrested person because this allows the arrested person
and his well wishers to take appropriate legal steps to
secure his release. However, all this will amount to
nothing if the arrested person does not even know about
this very critical right. Thus, Section 50 A (2) provides
that the police officer must inform the arrested person of
this right. Further, as perSection 50 A (3) he must note
down the name and address of the person who was
informed about the arrest. To make sure that there is no
violation of this right, section 50 A (4) makes it a duty of
the magistrate to verify that the provisions of this section

were complied with.

7. Right to be examined by a medical practitioner
While Section 53 allows a police officer to get the
accused examined by a registered medical
practitioner, Section 54(1) gives the accused a right to
get himself examined by a registered medical
practitioner. Section 54 (1) says thus, "When a person
who is arrested, whether on a charge or otherwise,
alleges, at the time when he is produced before a
Magistrate or at any time during, the period of his
detention in custody that the examination of his body will
afford evidence which will disprove the commission by
him of any offence or which Magistrate shall, if requested
by the arrested person so to do direct the examination of
the body of such person by a registered medical
practitioner unless the Magistrate considers that the
request is made for the purpose of vexation or delay or
for defeating the ends of Justice". While Section 53 is
meant to aid the police in investigation, Section 54(1) is
meant for the accused to prove his innocence. This right
can also be used by the accused to prove that he was
subjected to physical injury.
In Sheela Barse vs State of Maharashtra 1983 SCC,
SC held that the arrested accused person must be
informed by the magistrate about his right to be
medically examined in terms of Section 54(1).
However, it is not clear in the section whether the
medical person must be of the choice of the accused or
shall be appointed by the magistrate. The section is also
silent on who will bear the expense of the examination.

Non compliance to this important provision prompted

Delhi High court to issue directions that make it
obligatory for the magistrates to ask the arrested person
as to whether he has any complaint of torture or
maltreatment in police custody.
Consequences of non-compliance with the
provisions relating to arrest
In general, non-compliance does not void a trial. Just
because any provision relating to arrest was not complied
with does not affect whether the accused is guilty or not.
However, the violation will be material in case the
accused is prosecuted on the charge of resistance to or
escape from lawful custody.
Further, everybody has a right to defend himself against
unlawful arrest and a person can exercise this right under
Section 96 to 106 of IPC and he will not be liable for any
injury caused due to it. Also, a person who is making an
illegal arrest is guilty of wrongful confinement and also
exposes himself to damages in a civil suit.
If a person who has an authority to arrest, arrests a
person with full knowledge that the arrest is illegal, he
will be liable to be prosecuted under Section 220 of IPC.
Similarly, any private person who does not have an
authority to arrest, arrests a person with full knowledge
that the arrest is illegal, can be prosecuted under Section
342 of IPC for wrongful confinement.
A person making illegal arrest also exposes himself to
civil suit of false imprisonment.
It is important to note that the provisions regarding arrest
cannot be by-passed by alleging that there was no arrest

but only an informal detention. Informal detention or

restraint of any kind by the police is not authorized by
law.
Processes for compelling appearance
To meet the ends of justice, it is critical to produce the
accused and other witness or related parties before the
court whenever needed. If the accused is found guilty at
the conclusion of the trial, he must be present in person
to receive the sentence. Also, his presence is necessary if
imprisonment is to be enforced. Further, the supremacy
of the law will be questionable if there is no formal
process to bring the required persons before the court.
For this reason, Chapter VI (Sections 61 to 90) of
CrPC provides three ways for compelling the appearance
of any person who is required to be present in the court,
in the court
1. Summons,
2. Warrant, and
3. Proclamation for person absconding
While Summons is an order of the court to the person to
appear before it, Warrant is an order of the court given to
a third person to bring the person who is required to be
present in the court, in the court. Which method is to be
used in a particular situation depends on the judicial
officer, who is guided by the provisions of this code. The
third method is used when the person has absconded or
is in any other way avoiding arrest, in which case the
Court may publish a written proclamation requiring him to
appear at a specified place and at a specified time not
less than thirty days from the date of publishing such

proclamation
The code classifies all criminal cases into summons cases
and warrant cases. A case is a warrant case if the offence
is punishable by death, imprisonment for life or
imprisonment for more than two years. A summons case
is a case that is not a warrant case. Thus, the basis of
classification is the seriousness of the offence. Since
summons case contains a lesser sentence, there is less
probability of the accused violating the court order.
Therefore, generally, a summons is issued for a summons
case and a warrant is issued for a warrant case. However,
when a summons is not productive in making a person
appear before the court, the count may issue a warrant to
a police officer or any other person to forcibly produce
the required person before the court.
Summons
A Summons is a process issued by a Court, calling upon a
person to appear before a Magistrate. It is used for the
purpose of notifying an individual of his legal obligation to
appear before the Magistrate as a response to a violation
of the law. It is addressed to a defendant in a legal
proceeding. Typically, the summons will announce to the
person to whom it is directed that a legal proceeding has
been started against that person, and that a file has been
started in the court records. The summons announces a
date and time on which the person must appear in court.
A person who is summoned is legally bound to appear
before the court on the given date and time. Willful
disobedience is liable to be punished under Section
174 of IPC. It is a ground for contempt of court.

As per Section 61, every summons issued by a Court

under this Code shall be in writing and in duplicate. It
must be signed by the presiding officer of the Court or by
such other officer as the High Court may, from time to
time, by rule direct. It must also bear the seal of the
Court.
Procedure for issuing a Summons
When a request in appropriate format is made to the
court for compelling the appearance for a person, the
court either rejects the request or issues a Summons. As
per Section 204, if in the opinion of the magistrate
taking cognizance of the offence, there is sufficient
ground for proceeding, he shall issue a summons if it is a
summons case. If it is a warrants case, he may issue a
warrant or a summons as he thinks fit. However, Section
87, empowers a magistrate to issue a warrant even if the
case is a summons case if he has reason to believe that
the summons will be disobeyed. He must record his
reasons for this action.
The summons should contain adequate particulars such
as the date, time, and place, of the offence charged. It
should also contain the date, time, and place where the
summoned person is supposed to appear. The standard
format of a summons is given in Form 1 of Second
schedule.
As per Section 205, a magistrate issuing the summons
may permit the accused to appear by his lawyer if he
sees reason to do so.
Procedure for serving a Summons
CrPC describes the procedures for serving a summons on

various categories of individuals a person, a corporate

body, a government servant, and a person residing
outside the jurisdiction of the court.
Section 62 describes the procedure for serving a
Summons on a person as follows
(1) Every summons shall be served by a police officer, or
subject to such rules as the State Government may make
in this behalf, by an officer of the Court issuing it or other
public servant.
(2) The summons shall, if practicable, be served
personally on the person summoned, by delivering or
tendering to him one of the duplicates of the summons.
(3) Every person on whom a summons is so served shall,
if so required by the serving officer, sign a receipt
therefore on the back of the other duplicate.
In case of Danatram Karsanal, 1968, it was held that
summons should not only be shown but a copy of it be
left, exhibited, delivered, or tendered, to the person
summoned. In a case, where a copy was tendered to the
person, it was held that the summon was served.
In E Chathu vs P Gopalan, 1981, it was held that when
the person sought to be summoned is employed abroad,
the court can send summons to the concerned embassy
official for the purpose of service since the embassy
official is also a public servant. Merely affixing the
summon on a conspicuous part of the house will not
amount to service of the summon.
Service of summons on corporate bodies and
societies (Section 63)

Service of a summons on a corporation may be effected

by serving it on the secretary, local manager or other
principle officer of the corporation, or by letter sent by
registered post, addressed to the chief officer of the
corporation in India, in which case the service shall be
deemed to have been effected when the letter would
arrive in ordinary course of post. In this section,
"corporation" means an incorporated company or other
body corporate and includes a society registered under
the Societies Registration Act, 1860.
In the case of Central Bank of India vs Delhi
Development Authority, 1981, it was held that a
Branch Manager is a local manager and if he has been
served the service shall be deemed to have been effected
on the company itself.
Service when persons summoned cannot be found
(Section 64)
Where the person summoned cannot, by the exercise of
due diligence, be found, the summons may be served by
leaving one of the duplicates for him with some adult
male member of his family residing with him, and the
person with whom the summons is so left shall, if so
required by the serving officer, sign a receipt therefor on
the back of the other duplicate. A servant is not
considered to be a member of the family within the
meaning of this section.
Procedure when service cannot be effected as
before provided (Section 65)
If service cannot by the exercise of due diligence be
effected as provided in section 62, section 63, or section

64, the serving officer shall affix one of the duplicates of

the summons to some conspicuous part of the house or
homestead in which the person summoned ordinarily
resides; and thereupon the Court, after making such
inquiries as it thinks fit, may either declare that the
summons has been duly served or order fresh service in
such manner as it considers proper.
The service of summons on a witness can also be done by
post. As per Section 69
(1) Notwithstanding anything contained in the preceding
sections of this Chapter, a Court issuing a summons to a
witness may, in addition to and simultaneously with the
issue of such summons, direct a copy of the summons to
be served by registered post addressed to the witness at
the place where he ordinarily resides or carries on
business or personally works for gain.
(2) When an acknowledgment purporting to be signed by
the witness or an endorsement purporting to be made by
a postal employee that the witness refused to take
delivery of the summons has been received, the Court
issuing the summons may declare that the summons has
been duly served.
Service of summons on a Govt. employee (Section
66)
Section 66 details the procedure for serving a summons
on a Government employee as follows
(1) Where the person summoned is in the active service
of the Government, the Court issuing the summons shall
ordinarily sent it in duplicate to the head of the office in
which such person is employed; and such head shall

thereupon cause the summons to be served in the

manner provided by section 62, and shall return it to the
Court under his signature with the endorsement required
by that section.
(2) Such signature shall be evidence of due service.
Service of summons outside local limits (Section
67)
When a Court desires that a summons issued by it shall
be served at any place outside its local jurisdiction, it
shall ordinarily send such summons in duplicate to a
Magistrate within whose local jurisdiction the person
summoned resides, or is believed to be there, served.
Warrant of Arrest
Introduction
To meet the ends of justice, it is critical to produce the
accused and other witness or related parties before the
court whenever needed. If the accused is found guilty at
the conclusion of the trial, he must be present in person
to receive the sentence. Also, his presence is necessary if
imprisonment is to be enforced. Further, the supremacy
of the law will be questionable if there is no formal
process to bring the required persons before the court.
For this reason, Chapter VI (Sections 61 to 90) of
CrPC provides two ways for compelling the appearance
of any person who is required to be present in the court,
in the court Summons and Warrant. While Summons is
an order of the court to the person to appear before it,
Warrant is an order of the court given to a third person to
bring the person who is required to be present in the
court, in the court. Which method is to be used in a

particular situation depends on the judicial officer, who is

guided by the provisions of this code.
The code classifies all criminal cases into summons cases
and warrant cases. A case is a warrant case if the offence
is punishable by death, imprisonment for life or
imprisonment for more than two years. A summons case
is a case that is not a warrant case. Thus, The basis of
classification is the seriousness of the offence. Since
summons case contains a lesser sentence, there is less
probability of the accused violating the court order.
Therefore, generally, a summons is issued for a summons
case and a warrant is issued for a warrant case. However,
when a Summons is not productive in making a person
appear before the court, the count may issue a warrant to
a police officer or any other person to forcibly produce
the required person before the court.
Warrant of Arrest
A warrant of arrest is a written authority given by a
competent magistrate for the arrest of a person. It is a
more drastic step than the issue of a summons. It is
addressed to a person, usually a police officer, to
apprehend and produce the offender in front of the court.
Essential Elements of a valid warrant
1. The warrant must clearly mention the name and other
particulars of the person to be arrested. As per Section
70(1), every warrant of arrest shall be in writing. It must
be signed by the presiding officer of the court and must
bear the seal of the court. As per section 70(2), a
warrant remains in force until it is canceled or is

executed. Normally, Form 2 of Second schedule is used to

write a warrant.
2. It must show the person to whom the authority to
arrest has been given. As per Section 72, a warrant is
normally directed to one or more police officers but, if
necessary, the court may direct it to any other person or
persons. Further, section 73 provides that a magistrate
may direct a warrant to any person within his jurisdiction
for the arrest of any escaped convict, proclaimed
offender, or of any person who is accused of a nonbailable offence and is evading arrest.
3. It may include a direction that if the person arrested
under the warrant executes a bond and gives security for
his attendance in court, he shall be released. Warrant
with such a direction is called as bailable warrant of
arrest.
4. It must clearly specify the offence.
Procedure for issuing a Warrant
When a request in appropriate format is made to the
court for compelling the appearance for a person, the
court either rejects the request or issues a Warrant. As
per Section 204, if in the opinion of the magistrate
taking cognizance of the offence, there is sufficient
ground for proceeding, and if the cases is a warrant case,
he may issue a warrant or if he thinks fit, he may issue a
summons.
Further, Section 87, empowers a magistrate to issue a
warrant even if the case is a summons case if he has
reason to believe that the summons will be disobeyed. He
must record his reasons for this action.

Procedure for executing a Warrant

As per section 75, A warrant can be executed by
showing the substance of the warrant to the person being
arrest. If required, the warrant must be shown to the
person arrested. Section 76 mandates that the person
executing the warrant must produce the arrested person
before the magistrate without unnecessary delay and
within 24 hours excluding the time taken for travel from
the place of arrest to the magistrate.
As per section 77, a warrant may be executed anywhere
in India. Section 78 specifies that if a warrant is to be
executed outside the local jurisdiction of the court issuing
it, such court may send it to the Executive Magistrate or
District Superintendent of Police or Commissioner of
Police within the local limits of whose jurisdiction it is to
be executed instead of directing it to the police officer
within the jurisdiction of the issuing court.
Section 79 specifies the procedure for executing a
warrant outside the local jurisdiction of the issuing court
as follows
(1) When a warrant directed to a police officer is to be
executed beyond the local jurisdiction of the Court issuing
the same, he shall ordinarily take it for endorsement
either to an Executive Magistrate or to a police officer not
below the rank of an officer in charge of a police station,
within the local limits of whose jurisdiction the warrant is
to be executed.
(2) Such Magistrate or police officer shall endorse his
name thereon and such endorsement shall be sufficient
authority to the police officer to whom the warrant is

directed to execute the same, and the local police shall, if

so required, assist such officer in executing such warrant.
(3)Whenever there is reason to believe that the delay
occasioned by obtaining the endorsement of the
Magistrate or police officer within whose local jurisdiction
the warrant is to be executed will prevent such execution,
the police officer to whom it is directed may execute the
same without such endorsement in any place beyond the
local jurisdiction of the Court which issued it.
When can a court issue a Warrant in a case in
which it is empowered to issue summons
As per Section 87 a court may issue a warrant even in a
case in which it is empowered only to issue a summons. A
court can issue a warrant either before issuing a
summons or even after issuing a summons. It may do so
if it has reason to believe that the person has absconded
or that the person will not obey the summons. Further, a
court may issue a warrant if the summons was duly
served and still the person fails to appear before it at the
required date and time without any reasonable excuse.
The court must record its reasons to do so.
It must be noted that Section 204 empowers the court
to issue a summons even for a warrants case if it believes
that a summons is sufficient to enforce the appearance of
the person before it, while Section 87 empowers the
court to issue a warrant even in a summons cases, if
reasonable causes exist. In general, a warrant ought not
to be issued where a summons can serve the purpose
and care should be exercised by the court to satisfy itself
that upon the materials present before it, it was

necessary to issue a warrant. In Anoop Singh vs

Cheelu AIR 1957, it was held that this applies to an
accused as well as a witness. But where the court has no
power to issue a summons, it cannot issue a warrant
under this section. In P K Baidya vs Chaya Rani AIR
1995, it was held that when a witness avoids his
appearance in spite of the summons being appropriately
served, court can take steps for securing his presence
under this section.
When can a warrant be issued for recovery of a
fine
Section 421 Warrant for levy of fine(1) When an offender has been sentenced to pay a fine,
the Court passing the sentence may take action for the
recovery of the fine in either or both of the following
ways, that is to say, it may,(a) issue a warrant for the levy of the amount by
attachment and sale of any movable property belonging
to the offender;
(b) issue a warrant to the Collector of the district,
authorizing him to realize the amount as arrears of land
revenue from the movable or immovable property, or
both, of the defaulter:
Provided that, if the sentence directs that in default of
payment of the fine, the offender shall be imprisoned,
and if such offender has undergone the whole of such
imprisonment in default, no Court shall issue such
warrant unless, for special reasons to be recorded in
writing, it considers it necessary so to do, or unless, it has
made an order for the payment of expenses or

compensation out of the fine under Section 357.

(2) The State Government may make rules regulating the
manner in which warrants under Clause (a) of sub-section
(1) are to be executed, and for the summary
determination of any claims made by any person other
than the offender in respect of any property attached in
execution of such warrant.
(3) Where the Court issues a warrant to the Collector
under Clause (b) of sub-section (1), the Collector shall
realize the amount in accordance with the law relating to
recovery of arrears of land revenue, as if such warrant
were a certificate issued under such law:
Provided that no such warrant shall be executed by the
arrest or detention in prison of the offender.
When is a person declared Absconder
When a person is hiding from his place of residence so as
to frustrate the execution of a warrant of arrest, he is said
have absconded. A person may hide within his residence
or outside away from his residence. If a person comes to
know about the issuance of a process against him or if he
anticipates such a process and hides or quits the country,
he is said to have absconded. In Kartary vs State of UP,
1994, All HC held that when in order to evade the
process of law a person is hiding from (or even in) his
place of residence, he is said to abscond. A person is not
said to abscond merely when he has gone to a distant
place before the issuance of a warrant. Similarly, it is
necessary that the person is hiding himself and it is not
sufficient that an inspector is unable to find him.
Normally, if a person fails to appear before the court even

after being served a summons, the court issues a warrant

of arrest. However, if the person absconds to avoid the
arrest, the drastic step of Proclamation for Persons
Absconding needs to be taken, which is described inSec
82..
Proclamation for person absconding (Section
82(1))
If the court has reason to believe that a person has
absconded to avoid the execution of his arrest warrant,
the court may publish a written proclamation requiring
such person to appear before it at the specified place and
time. The date and time of appearance must not be less
than thirty days from the date of proclamation.
Procedure for Publication of the Proclamation
(Section 82(2))
As per section 82(2), the proclamation must be read in
some conspicious place of the town or village in which the
person resides. It shall also be affixed to some
conspicuous part of the house in which the person resides
or to some conspicuous place of the town or village.
Further, a copy of the same must also be affixed to some
conspicious part of the court house. The court may also
direct a copy of the proclamation to be published in a
daily newspaper circulating in the place is which such
person ordinarily resides.
The terms of Section 82 are mandatory and a
proclamation cannot be issued without first issuing a
warrant of arrest. Therefore, as held inBishnudayal vs
Emperor AIR 1943, if there is no authority to arrest, the
issuing of proclamation would be illegal.

Consequences of Proclamation
Section 83 Attachment of property of person
absconding
The publication of proclamation in accordance with the
procedure described in section 82, is the last of the steps
taken to produce a person before the court. If the person
still fails to appear before the court, Section
83 empowers the court to attach the property of the
person who is absconding at any time. The court must
record the reasons for doing so. The property can be
movable or immovable. The property can be any property
within the district or even outside the district of the
District magistrate of the other district endorses the
proclamation.
Further, if, at the time of making proclamation, the court
is satisfied that the person is about to dispose of his
property or is about to move his property out of the
jurisdiction of the court, it may order the attachment of
the property simultaneously with the issue of
proclamation.
If the property to be attached is a debt or is movable
property, the attachment is done either by seizure, by the
appointment of a receiver, by an order ins writing
prohibiting the deliver of sch property to the proclaimed
person or to anyone on his behalf. Court can also use any
one or more of these modes as it thinks fit. If the property
is immovable, it can be attached by taking possession, by
appointing a receiver, by an order prohibiting the
payment of rent to the proclaimed persons or by any or
all of these methods.

Section 84 provides a means to protect the interests of

any person other than the proclaimed person in the
attached property. Any such person who has an interest
in the attached property can claim it within six months
from the date of attachment on the ground that the
claimant has an interest in the property and the interest
is not liable to be attached under section 83. The claim
shall be inquired into and may be allowed or disallowed in
whole or in part.
(1) If any claim is preferred to, or objection made to the
attachment of, any property attached under section 83,
within six months from the date of such attachment, by
any person other than the proclaimed person, on the
ground that the claimant or objector has an interest in
such property, and that such interest is not liable to
attachment under section 83, the claim or objection shall
be inquired into, and may be allowed or disallowed in
whole or in part:
Provided that any claim preferred or objection made
within the period allowed by this sub-section may, in the
event of the death of the claimant or objector, be
continued by his legal representative.
(2) Claims or objections under sub-section (1) may be
preferred or made in the Court by which the order of
attachment is issued, or, if the claim or objection is in
respect of property attached under an order endorsed
under sub-section (2) of section 83, in the Court of the
Chief Judicial Magistrate of the district in which the
attachment is made.
(3) Every such claim or objection shall be inquired into by

the Court in which it is preferred or made:

Provided that, if it is preferred or made in the Court of a
Chief Judicial Magistrate, he may make it over for disposal
to any Magistrate subordinate to him.
(4) Any person whose claim or objection has been
disallowed in whole or in part by an order under subsection (1) may, within a period of one year from the date
of such order, institute a suit to establish the right which
he claims in respect of the property in dispute; but
subject to the result of such suit, if any, the order shall be
conclusive.
Section 85 Release, Sale, and restoration of the
property
(1) If the proclaimed person appears within the time
specified in the proclamation, the Court shall make an
order releasing the property from the attachment.
(2) If the proclaimed person does not appear within the
time specified in the proclamation, the property under the
attachment shall be at the disposal of the State
Government; but it shall not be sold until the expiration of
six months from the date of the attachment and until any
claim preferred or objection made under section 84 has
been disposed of under that section, unless it is subject
to speedy and natural decay, or the Court considers that
the sale would be for the benefit of the owner; in either of
which cases the Court may cause it to be sold whenever
it thinks fit.
(3) If, within two years from the date of the attachment,
any person whose property is or has been at the disposal
of the State Government, under sub-section (2), appears

voluntarily or is apprehended and brought before the

Court by whose order the property was attached, or the
Court to which such Court is subordinate, and proves to
the satisfaction of such Court that he did not abscond or
conceal himself for the purpose of avoiding execution of
the warrant, and that he had not such notice of the
proclamation as to enable him to attend within the time
specified therein such property, or, if the same has been
sold, the net proceeds of the sale, or, if part only thereof
has been sold, the net proceeds of the sale, and the
residue of the property, shall, after satisfying therefrom
all costs incurred in consequence of the attachment, be
delivered to him.
Commencement of proceedings [Sec 200, 201, 202]
When can a complaint be dismissed?[Sec 203]
"Commencement of proceedings" happens with the
proceedings that take place after "taking of cognizance"
of an offence by a magistrate under Section 190, which
can happen either on a complaint by any person, a police
report, any other source other than a police officer, or
upon his own knowledge. However, when cognizance is
take upon a complaint made by any person, it is critical to
examin the complainant to ensure that the complaint is
genuine before starting the trial and summoning an
accused. According to 41st Law Report, everyday
experience of the court shows that a vast number of
complaints to the magistrate are ill founded and therefore
they should be carefully considered at the very start and
those which are not very convincing on the face should
be subjected to further scrutiny so that an accused

person is summoned only in substantial cases. What this

means is that frivolous and vexatious cases that are just
meant to harass an accused must be weeded out. This is
exactly the objective of Section 200, which implores a
magistrate to examin the compainant under oath and any
witnesses.
Section 200 says: A Magistrate taking cognizance of an
offence on complaint shall examine upon oath the
complainant and the witnesses present, if any, and the
substance of such examination shall be reduced to
writing and shall be signed by the complainant and the
witnesses, and also by the Magistrate.
Provided that, when the complaint is made in writing, the
Magistrate need not examine the complainant and the
witnesses(a) if a public servant acting or purporting to act in the
discharge of his official duties or a Court has made the
complaint; or
(b) if the Magistrate makes over the case for inquiry or
trial to another Magistrate under section 192:
Provided further that if the Magistrate makes over the
case to another Magistrate under section 192 after
examining the complainant and the witnesses, the latter
Magistrate need not re-examine them.
In MacCulloch vs State, 1974, it was held by SC that
the provisions of section 200 are not a mere formality,
but have been intended by the legislature to be given
effect to for the protection of the accused persons against
unwarranted complaints.
It is also necessary that to start the trial process, the

magistrate must be competant to take cognizance the

alleged offence. Section 201says that if the magistrate
is not competent to take cognizance of an offence, he
shall (a) if the complaint is in writing, return it for
presentation to the proper Court with an endorsement to
that effect; (b) if the complaint is not in writing, direct the
complainant to the proper Court.
To further protect a person from frivolous cases arising
from complaints from private parties, Section
202 empowers a magistrate to inquire into the case
himself or direct an investigation to be made by a police
officer or by such other person as he thinks fit, for the
purpose of deciding whether or not there is sufficient
ground for proceeding and he can postpone the issue for
process for this purpose.
It is important to note that the "weeding" as envisaged by
Section 200-203 is only applicable to cases where
cognizance is taken by the magistrate upon a complaint
by a private party. It is not applicable to cognizance taken
upon a police report.
Issue of Process (Section 204)
Once it is determined that a prima facie case exists
against the accused, the magistrate proceeds with the
case as per Section 204 by the way of issuing a process.
Which means :
(1) If in the opinion of a Magistrate taking cognizance of
an offence there is sufficient ground for proceeding, and
the case appears to be
(a) a summons-case, he shall issue his summons for the
attendance of the accused, or

(b) a warrant-case, he may issue a warrant, or, if he

thinks fit, a summons, for causing the accused to be
brought or to appear at a certain time before such
Magistrate or (if he has no jurisdiction himself) some
other Magistrate having jurisdiction.
(2) No summons or warrant shall be issued against the
accused under sub-section (1) until a list of the
prosecution witnesses has been filed.
(3) In a proceeding instituted upon a complaint made in
writing, every summons or warrant issued under subsection (1) shall be accompanied by a copy of such
complaint.
(4) When by any law for the time being in force any
process-fees or other fees are payable, no process shall
be issued until the fees are paid and, if such fees are not
paid within a reasonable time, the Magistrate may
dismiss the complaint.
(5) Nothing in this section shall be deemed to affect the
provisions of section 87 (Section 87: Issue of warrant in
lieu of, or in addition to, summons).
Dismissal of a Complaint Section 203
As mentioned before, upon receiving a complaint, a
magistrate can conduct an inquiry or direct investigation
of the complaint under Section 202(1). Section 203
empowers a magistrate to dismiss the complaint, if, after
considering the statements on oath from the complainant
or his witnesses or the result of the inquiry or
investigation, he believes that there are no sufficient
grounds for proceeding further. He must record the
reasons for dismissal. The magistrate must apply his

mind on the collected statements and inquiry report to

determine whether there is any merit in the complaint.
However, as held by SC in Chandra Deo Singh vs
Prokash Chandra Bose, 1963, the test specified
by Section 203 for dismissing a complaint is only
whether sufficient grounds exist for proceeding further
and not whether sufficient grounds exist for conviction.
Thus, even if the magistrate does not see sufficient
grounds for conviction but sees sufficient ground for
proceeding further with the trial, he must not dismiss the
complaint. SC further observed that where there is a
prima facie evidence against the accused, even though
the accused might have a defence, the issue of process
cannot be refused because the hearing of defence must
be done at the appropriate stage and at appropriate
forum.
Offence
General Concept of Offence
A violation of a penal law is an offence. Thus, any act
which is deemed as an offence by any law is an offence.
In general, such act which causes a violation of rights of
others or cause harm to others and is so dangerous that
is also affects the society at large is designated as
offence by the legislature through the acts of the
parliament. Section 2(n) of CrPC defines an offence as
follows
Section 2(n) "Offence" means any act or omission
made punishable by any law for the time being in force
and includes any act in respect of which a complaint may
be made under section 20 of the Cattle-trespass Act,

1871.
Further Section 39(2) says that act committed outside
India is also an offence if that act would be an offence if
committed in India.
It is important to note that an act is not offence unless it
is clearly defined as an offence by any piece of
legislature. Thus, to be an offence, the legislature must
designate it to be an offence. Several Acts and
Legislations defines such acts which constitute offences.
The main among them is the Indian Penal Code. It defines
acts ranging from theft and murder to fraud and criminal
breach of trust and makes them offences. Examples of
other acts which defines offences are Wildlife Protection
Act, Prevention of Corruption Act, Narcotic Drugs and
Psychotropic Substances Act, Environmental Protection
Act. These Acts defines certain activities related to the
focus of the Act as offences. Some Acts such as
Prevention of Corruption Act and Narcotic Drugs and
Psychotropic Substances Act also specify the mode of trial
for the offences that they define, while some specify that
trial for their offences will be held as per the provisions of
Cr PC.
Bail
The purpose of arrest and detention of a person is
primarily to make sure that the person appears before the
court at the time of trial and if he is found guilty and is
sentenced to imprisonment, he must be made available
to serve his sentence. However, if it is reasonably evident
that the person charged with an offence can be made
available for the above mentioned purposes without

keeping him imprisoned, then it is unfair to keep him in

custody until his guilt is proven. It is a violation of a
persons fundamental right to restrict the persons liberty
without any just cause.
Bail is one such mechanism which is used to ensure the
presence of an accused whenever required by the court.
CrPC does not define the term Bail, but essentially, Bail is
an agreement in which a person makes a written
undertaking to the court. A person who is in custody,
because he or she has been charged with an offence or is
involved in pending criminal proceedings, may apply to
be released on Bail. Normally, in signing a bail agreement
a person undertakes that he will be present every time
the matter is in court until the proceedings are finished,
will comply with any conditions set out in the agreement
as to conduct while on Bail, and will forfeit a specified
sum of money if the person fails, without proper excuse,
to comply with any term or condition of the agreement.
Two authorities that may grant bail are the police and the
courts. A person may be required to provide a security as
well. But it is not necessary. A person may also be let off
on his own bond. In the case of Moti Ram vs State of
MP, AIR 1978, SC held that a Bail covers both release on
ones own bond with or without surety.
Bailable and Non-Bailable offence
An offence can be classified as a Bailable or a NonBailable offence. In general, a bailable offence is an
offence of relatively less severity and for which the
accused has a right to be released on bail. While a nonbailable offence is a serious offence and for it, the

accused cannot demand to be released on bail as a right.

More specifically, Section 2(a) defines Bailable Offence as
well as Non-Bailable Offence as follows
Section 2 (a) Bailable offence" means an offence
which is shown as bailable in the First Schedule, or which
is made bailable by any other law for the time being in
force: and "non-bailable offence" means any other
offence.
Interesting thing is that the definition itself does not refer
to seriousness of the offence. It simply makes those
offences as bailable which are listed as so in the First
Schedule of Cr P C. These offences include offences such
as obstructing a public servant from discharging his
duties, bribing an election official, and providing false
evidence. Non-bailable offences include offences such as
murder, threatening a person to give false evidence, and
failure by a person released on bail or bond to appeal
before court. However, a quick look at the list of bailable
and non-bailable offences shows that bailable offences
are of relatively less severity.
When and When not can Bail be granted
As mentioned earlier, the purpose of Bail is to ensure the
appearance of an accused before the court whenever
required. However, granting bail is not advisable in all
cases. For example, a murder, if let loose, may try to
intimidate the witnesses, or he may even abscond
altogether. This is very bad for the society in general and
reflects bad on the justice system. Thus, various rules
and procedures have been formulated to make sure that
only the deserving are released on bail. They try to

achieve a balance between the rights of the accused and

the protection of the society and effectiveness of the
justice system.
The working of the bail system in India was highlighted in
the case of Hussainara Khaton vs Home Secretory,
1980. It came to the courts attention for the first time
that thousands of people were rotting in jails for 3 to 10
years for petty crimes which do not have punishment
more than 6 months to an year. This was because they
were unable to pay bond money for bail and the courts
were too backlogged to hear their cases. In this respect, J
Bhagwati observed that the courts must abandon the
antiquated concept under which pretrial release is
ordered only against bail with sureties.
Thus, in general, the intention of the justice system is to
give bail and not jail before the accused is convicted. It is
said that since the accused is presumed innocence, he
must be released so that he can fight for his defense.
Thus, releasing a person on bail is a rule, while denying
bail is an exception.
Provisions for Bail can be categorized by the type of
offence committed i.e. bailable offence or non-bailable
offence
Bail for Bailable offences
A person accused of a bailable offence can demand to be
released on bail as a matter of right. This is provided for
by Section 436.
Section 436 When any person other than a person
accused of a non-bailable offence is arrested or detained
without warrant by an officer in charge of a police station,

or appears or is brought before a court, and is prepared

at, any, time while-in the custody of such officer or at any
stage of the proceeding before such court to give bail,
such person shall be released on bail.
Further, such officer or court, if he or it thinks fit, may,
instead of taking bail from such person, discharge him on
his executing a bond without sureties for his appearance.
Section 50(2) imposes an obligation on the police officer
to notify the detained person about his right to get bail if
he is detained on a bailable offence.
The right to bail cannot be nullified by imposing a very
high amount for bail. Section 440(1) specifically provides
that the amount of bail cannot be unreasonably high.
An amendment to Section 436 mandates that an indigent
person, who is unable to provide any bail amount, must
be released. If a person is unable to provide bail amount
for a week, then he can be considered indigent.
Section 436 A allows a person to be released on his own
surety if he has already spent half the maximum
sentence provided for the alleged crime in jail. However,
this does not apply if death is one of the punishments
specified for the offence.
Bail for Non-Bailable offences
When a person is detained for a non-bailable offence, he
cannot demand to be released on bail as a matter of
right. He can, however, request the court to grant bail.
The provisions in this case are governed by Section 437/
Section 437 When any person accused of, or
suspected of, the commission of any non-bailable offence
is arrested or detained without warrant by an officer-in-

charge of a police station or appears or is brought before

a Court other than the High Court or Court of session, he
may be released on bail. If it appears to such officer or
Court at any stage of the investigation, inquiry or trial, as
the case may be, that there are no reasonable grounds
for believing that the accused has committed a nonbailable offence, but there are sufficient grounds for
further inquiry into his guilt, the accused shall be
released on bail, or, at the discretion of such officer or
Court, on the execution by him of a bond without sureties
for his appearance. A police officer or the court may also
release a person from custody if he feels that there are
any special reasons. But he must record his reasons in
writing.
Supreme Court, in the case of Narsimhulu, AIR 1978,
has given a set of considerations that must be given
while giving bail in case of non-bailable offences. These
are
1. the nature of the crime
2. the nature of the charge, the evidence, and possible
punishment
3. the possibility of interference with justice
4. the antecedents of the applicant
5. furtherance of the interest of justice
6. the intermediate acquittal of the accused
7. socio-geographical circumstances
8. prospective misconduct of the accused
9. the period already spent in prison
10. protective and curative conditions on which bail
might be granted.

If, in any case triable by a Magistrate, the trial of a person

accused of any non-bailable offence is not concluded
within a period of sixty days from the first date fixed for
taking evidence in the case, such person shall, if he is in
custody during the whole of the said period, be released
on bail to the satisfaction of the Magistrate, unless for
reasons to be recorded in writing, the Magistrate
otherwise directs.
If, at any time, after the conclusion of the trial of a person
accused of a non-bailable offence and before judgment is
delivered, the Court is of opinion that there are
reasonable grounds for believing that the accused is not
guilty of any such offence, it shall release the accused, if
he is in custody, on the execution by him of a bond
without sureties for his appearance to hear judgment
delivered.
If the investigation is not done within 24 hours, the
arrested person must be bought before the court and if
required, the police must make a case to extend the
detention. The court may extend the detention by 15
days. However, the detention cannot extend more than
60 days (or 90 days, if the offence is punishable by death
or imprisonment for life), after which the accused must
be released on bail. This provision applies for bailable as
well as non-bailable offence.
Section 436 A allows a person to be released on his own
surety if he has already spent half the maximum
sentence provided for the alleged crime in jail. However,
this does not apply if death is one of the punishments
specified for the offence.

Conditions on Bail
As per Section 437, if any person accused of an offence
punishable with 7 yrs or more of imprisonment is released
on bail, the court may impose any condition on the bail to
ensure that the person will attend the court in accordance
with the bond executed by him, or to ensure that the
person will not commit a similar offence or otherwise in
interest of justice.
Special Powers of High Court and Court of Session
regarding Bail
Section 439 gives special powers to High Court and
Court of Session regarding bails. These are as follows
1. A High Court or Court of Sessions may direct that any
person accused of an offence and in custody be released
on bail. It may also impose any condition which it
considers necessary. It may set aside or modify any
condition imposed by a Magistrate when releasing any
person on bail.
2. The High Court or the Court of Sessions shall, before
granting bail to a person who is accused of an offence
which is triable exclusively by the Court of Sessions or
which, though not so triable, is punishable with
imprisonment for life, give notice of the application for
bail to the Public Prosecutor unless it is, for reasons to be
recorded in writing, of opinion that it is not practicable to
give such notice.
3. A High Court or Court of Sessions may direct that any
person who has been released on bail under this chapter
be arrested and commit him to custody.
When can bail be denied

1. As per Section 436(2), if a person has violated the

conditions of the bail-bond earlier, the court may refuse
to release him on bail, on a subsequent occasion in the
same case. He can also be asked to pay penalty for not
appearing before the court as per the conditions of the
previous bail.
2. It is clear that the provision for bail in case of nonbailable offences gives a discretionary power to the police
and and court. However, this power is not totally without
any restraint. Section 437 disallows bail to be given in
the following conditions.
1. if there appears reasonable grounds for believing
that the person has been guilty of an offence
punishable with death or imprisonment for life;
2. if such offence is a cognizable offence and the person
has been previously convicted of an offence punishable
with death, imprisonment for life or imprisonment for
seven years or more, or he had been previously
convicted on two or more occasions of a non-bailable
and cognizable offence. The person may, however, be
released on bail if such person is under the age of
sixteen years or is a woman or is sick or infirm.
3. Persons accused of Dowry Death
Cancellation of Bail
Although there was no provision for cancellation of the
bail in the old code, the SC in Talibs case (AIR
1958) held the absence of such provision as a lacuna and
recognized the power of High Court of cancellation of bail.
In the new code, as per section 437 (5) any Court which
has released a person on bail under section 437(1) or

437(2), may direct that such person be arrested and

commit him to custody. This basically cancels the bail.
However, it must be noted that only the court that has
given the bail can cancel it. Thus, a bail given by a police
officer cannot be canceled by a court under this section.
To do so the special power of High Court or Court of
Session under Section 439 has to be invoked. The new
Section 439 explicitly gives the power to High Court and
Court of Session to direct that any person who has been
released on bail be arrested and to commit him to
custody.
The power given by Section 439 for cancellation has no
riders. It is a discretionary power. It is not necessary that
some new events should take place subsequent to the
offenders release on bail for the Sessions Judge to cancel
his bail, however, the court usually bases its decision of
cancellation on subsequent events. For example, in the
case of Surendra Singh vs State of Bihar 1990, Patna
HC pointed out that a bail may be cancelled on following
grounds
1. When the accused was found tampering with the
evidence either during the investigation or during the trial
2. when the accused on bail commits similar offence or
any heinous offence during the period of bail.
3.when the accused had absconded and trial of the case
gets delayed on that account.
4. when the offence so committed by the accused had
caused serious law and order problem in the society
5. if the high court finds that the lower court has
exercised its power in granting bail wrongly

6. if the court finds that the accused has misused the

privileges of bail
7. when the life of accused itself is in danger
Appeal Provision for Bail
It has been held that an order granting bail is an
interlocutory order and so it cannot be challenged under
the revisional jurisdiction of the Session Court or High
Court. In general, there is no right of appeal against the
decision of refusing the bail. However, a person can alway
file for Special Leave Petition to High Court or Supreme
Court against such decision.
Some acts, such as POTA, explicitly grant a right to
appeal against a decision of refusal of bail to special
courts.
Anticipatory bail
It has been observed that many cases are instigated
against a person just because of political motivation or
personal vendetta. They lack enough evidence and are
meant to harass a person by getting him arrested. When
a person apprehends such situation he may apply to
Court of Session or the High Court under Section 438 for
a direction that he be released on bail upon his arrest.
This provision is commonly known as Anticipatory Bail, i.e
bail in anticipation of an arrest. Anticipatory bail is
technically an incorrect term because a bail can be given
only if a person has already been arrested. In this case,
the court directs that the person be released on bail as
soon as he is arrested. Thus, it is a direction to provide
bail and not the bail itself.
Section 438 When any person has reason to believe

that he may be arrested on an accusation of having

committed a non-bailable offence, he may apply to the
High Court or the Court of Sessions for a direction under
this section, and that Court may, if it thinks fit, direct that
in the event of such arrest, he shall be released on bail.
While applying under this section, the person has to
explain the circumstances because which he believes he
might be arrested. Mere hunch or fear is not enough. He
must also provide such evidence that shows there is a
reasonable probability that he will be arrested on
accusation of a non-bailable offence. Further, the
direction under this section can be given only upon a
specific offence. A generic direction or a blanket order to
be released whenever the applicant is arrested and on
whatever offence is not allowed.
In granting such a direction the court takes into account
the following considerations
1. The nature and gravity of the accusation.
2. The antecedents on the applicant including the fact as
to whether he has previously been imprisoned upon a
conviction by a court in respect of a cognizable offence.
3. The possibility of the accused to flee from justice
4. whether the accusation has been made with the object
of injuring or humiliating the applicant by having him
arrested.
The order may also include conditions such as the person
shall make himself available for interrogation by a police
officer whenever required, the person shall not leave
India, the person shall not make any inducement, threat,
or promise to any person acquainted with the facts of the

case, or any other condition that the court may think fit.
It is clear from Section 438(1) that the power to grant
anticipatory bail is given concurrently to Court of Session
and High Court. Thus, a person can approach either of the
courts to get this relief.
As per Section 438 A, the court may also grant an interim
order and in that case an opportunity is given to the
public prosecutor present his arguments on why the
applicant should not be given bail. Further, as per Section
438 B, if the court finds it necessary, it may require the
applicant to be present personally at the time of final
determination of the interim order.
A bail under the direction of this section is equivalent to
the bail given under Section 437(1) and so it is applicable
until the conclusion of the trial.
Refusal of Anticipatory Bail
Although, there is no specific provision that prohibits
granting anticipatory bail, there are certain situations
where such bail is normally not granted. These are
1. In case of dowry death or wife harassment.
2. In case of economic offences
3. In case of atrocious crimes
Anticipatory bail cannot be applied for after the person is
arrested. After arrest, the accused must seek remedy
under Section 437.
Some high courts have held that the grounds mentioned
in Section 437 for denying regular bail are applicable for
anticipatory bail as well. Thus, a person accused of an
offence that entails a punishment of death or life

imprisonment will not be given anticipatory bail.

In general, the court has a wide discretion in granting
anticipatory bail. So the court may deny this relief if it
feels that it is not in the interest of justice.
Cancellation of Anticipatory Bail
There is no specific provision that allows a court to cancel
the order of anticipatory bail. However, in several cases it
has been held that when Section 438 permits granting
anticipatory bail, it is implicit that the court making such
order is entitled upon appropriate considerations to
cancel or recall the order.
Bond [Sec 441 450]. Explain the procedure that is
followed when a bond is forfeited [Section 446].
As per Section 441, before any person is released on
bail or is released on his own bond, a bond for an
appropriate sum of money shall be executed by the
person and if required by one or more sureties, stating
that the person will appear before the court at the given
date and time mentioned in the bond.
In other words, a bonds provides a kind of monetary
guarantee that the person being released will appear
before the court as and when required.
General Provisions of Bonds ( ABNRI DDFFIMAL)
Section 440 Amount of bond should not be excessive.
High Court and Court of Session have power to reduce
the amount.
Section 441 Court may accept affidavits in proof of
fitness of sureties or it may also hold an inquiry to
determine the sufficiency of sureties.
Section 441 A Every surety must state the number of

person he is currently standing surety for.

Section 442 As soon as the bond is executed, the
person should be released.
Section 443 If through mistake, fraud or otherwise,
insufficient sureties have been accepted or if they
afterwards become insufficient, the court may issue a
warrant of arrest and may ask him to provide fresh
sureties.
Section 444 A surety can apply to be discharged from
the bond, in which case, the person for whom the surety
is given will be arrested and asked to provide new surety.
Section 445 A court may permit a person to deposit
money instead of executing a bond with or without
sureties.
Section 446 If a bond is forfeited, the sureties may be
asked to pay the penalty.
Section 446 A When a bond for appearance of a person
is forfeited for a breach of condition, the bond executed
by the person and the sureties shall stand canceled.
Section 447 If a surety becomes insolvent or dies, the
court may ask for new sureties.
Section 448 If the person from whom bond is required is
minor the court may accept a bond executed by sureties
only.
Section 449 Appeal from orders under Section 446 will
lie to Sessions Judge if the order is made by a magistrate
and to High Court if the order is made by Sessions Judge.
Section 450 The High Court or Court of Session may
direct any magistrate to levy the amount due on a bond
for appearance or attendance at such High Court or

Session Court.
Procedure on forfeiture of a Bond
If the court is satisfied that the bond has been forfeited
1. It may ask any person bound by the bond to pay
penalty or to show cause why it should not be paid.
2. If sufficient cause is not shown and penalty is not paid,
the court may proceed to recover the same as if the
penalty was a fine imposed by the court.
3. If the penalty cannot be recovered, the person bound
as surety is liable to be imprisoned in civil jail for up to 6
months
4. The court may remit any portion of the penalty and
require the payment in part. It must record its reasons for
doing so.
5. If a surety to a bond dies, his estate shall be
discharged from all liability in respect of the bond.
Charge? What are the contents of a Charge?
Discuss the effects of errors in a Charge? How is a
Charge different from FIR?
As per Whartons law Lexicon, Charge means to prefer an
acusation against some one. To charge a person means to
accuse that person of some offence. However, charge is
not a mere accusation made by a complainant or an
informant. A charge is a formal recognition of concrete
accusations by a magistrate or a court based upon a
complaint or information against the accused. A charge is
drawn up by a court only when the court is satisfied by
the prima facie evidence against the accused. The basic
idea behind a charge is to make the accused understand
what exactly he is accused of so that he can defend

himself. A charge gives the accused accurate and precise

information about the accusation against him.A charge is
written in the language of the court and the fact that the
charge is made means that every legal condition required
by law to constitute the offence charged is fulfilled in the
particular case.
It is a basic principle of law that when a court summons a
person to face a charge, the court must be equipped with
at least prima facie material to show that the person
being charged is guilty of the offences contained in the
charge. Thus, while framing a charge, the court must
apply its mind to the evidence presented to it and must
frame a charge only if it is satisfied that a case exists
against the accused. In the case of State vs Ajit Kumar
Saha 1988, the material on record did not show a prima
facie case but the charges were still framed by the
magistrate. Since there was no application of mind by the
magistrate, the order framing the charges was set aside
by the High Court.
According to Section 2(b) of Cr P C, when a charge
contains more than one heads, the head of charges is
also a charge.
Contents of a Charge
Section 211 specifies the contents of a Charge as
follows [ONDSLP]
(1) Every charge under this Code shall state the offence
with which the accused is charged.
(2) If the law that creates the offence gives it any specific
name, the offence may be described in the charge by
that name only.

(3) If the law that creates the offence does not give it any
specific name so much of the definition of the offence
must be stated as to give the accused notice of the
matter with which he is charged.
(4) The law and section of the law against which the
offence is said to have been committed shall be
mentioned in the charge.
(5) The fact that the charge is made is equivalent to a
statement that every legal condition required by law to
constitute the offence charged was fulfilled in the
particular case.
(6) The charge shall be written in the language of the
court.
(7) If the accused, having been previously convicted of
any offence, is liable, by reason of such previous
conviction, to enhanced punishment, or to punishment of
a different kind, for a subsequent offence, and it is
intended to prove such previous conviction for the
purpose of affecting the punishment which the court may
think fit to award for the subsequent offence, the fact
date and place of the previous, conviction shall be stated
in the charge; and if such statement has been omitted,
the court may add it at any time before sentence is
passed.
A charge must list the offence with which the person is
charged. It must specify the law and the section against
which that offence has been done. For example, if a
person is charged with Murder, the charge must specify
Section 300 of Indian Penal Code. If the law gives a name
to that offence, the charge must also specify that name

and if the law does not specify any name for that offence,
the charge must specify the detail of the offence from the
definition of the offence so that the accused is given a
clear idea of it.
In many cases, on offender is given a bigger sentence for
subsequent offence. In such cases, the charge must also
state the date and place of previous conviction so that a
bigger punishment may be given.
Illustrations
(a) A is charged with the murder of B. This is equivalent
to a statement that As act fell within the definition of
murder given in sections 299 and 300 of the Indian Penal
Code (45 of 1860); that it did not fall within any of the
general exceptions of the said Code; and that it did not
fall within any of the five exceptions to section 300, or
that, if it did fall within Exception 1, one or other of the
three provisos to that exception applied to it.
(b) A is charged under section 326 of the Indian Penal
Code (45 of 1860) with voluntarily causing grievous hurt
to B by means of an instrument for shooting. This is
equivalent to a statement that the case was not provided
for by section 335 of the said Code, and that the general
exceptions did not apply to it.
(c) A is accused of murder, cheating, theft, extortion,
adultery or criminal intimidation, or using a false
property-mark. The charge may state that A committed
murder, or cheating, or theft, or extortion, or adultery, or
criminal intimidation, or that he used a false propertymark, without reference to the definition, of those crimes
contained in the Indian Penal Code; but the sections

under which the offence is punishable must, in each

instance, be referred to in the charge.
(d) A is charged under section 184 of the Indian Penal
Code (45 of 1860) with intentionally obstructing a sale of
property offered for sale by the lawful authority of a
public servant. The charge should be in those words.
Time and Place of the offence
Further, as per section 212, the charge must also
specify the essential facts such as time, place, and
person comprising the offence. For example, if a person is
charged with Murder, the charge must specify the name
of the victim and date and place of the murder. In case
ofShashidhara Kurup vs Union of India 1994, no
particulars of offence were stated in the charge. It was
held that the particulars of offence are required to be
stated in the charge so that the accused may take
appropriate defence. Where this is not done and no
opportunity is afforded to the accused to defend his case,
the trial will be bad in law for being violative of the
principles of natural justice.
It is possible that exact dates may not be known and in
such cases, the charge must specify information that is
reasonably sufficient to give the accused the notice of the
matter with which he is charged. In cases of criminal
breach of trust, it will be enough to specify gross sum or
the dates between which the offence was committed.
Manner of committing the offence
Some times, even the time and place do not provide
sufficient notice of the offence which which a person is
charged. In such situations,Section 213, mandates that

the manner in which the offence was made must also be

specified in the charge. It says that when the nature of
the case is such that the particulars mentioned in
sections 211 and 212 do not give accused sufficient
notice of the matter with which he is charged, the charge
shall also contain such particulars of the manner is which
the alleged offence was committed as will be sufficient
for that Purpose.
Illustrations(a) A is accused of the theft of a certain article at a
certain time and place the charge need not set out the
manner in which the theft was effected
(b) A is accused of cheating B at a given time and place.
The charge must be set out the manner in which A
cheated B.
(c) A is accused of giving false evidence at a given time
and place. The charge must set out that portion of the
evidence given by A which is alleged to be false.
(d) A is accused of obstructing B, a public servant, in the
discharge or his public functions at a given time and
place. The charge must set out the manner obstructed B
in the discharge of his functions.
(e) A is accused of the murder of B at a given time and
place. The charge need not state the manner in which A
murdered B.
(f) A is accused of disobeying a direction of the law with
intent to save punishment. The charge must set out the
disobedience charged and the law infringed.
Effects of errors in a Charge
In general, an error in a Charge is not material unless it

can be shown that the error misled the accused or that

the error caused injustice.Section 215 says, "No error in
stating either the offence or the particulars required to be
stated in the charge, and no omission to state the offence
shall be regarded at any stage of the case as material,
unless the accused was in fact misled by such error or
omission, and it has occasioned a failure of justice."
Illustrations:
(a) A is charged under section 242 of the Indian Penal
Code (45 of 1860), with "having, been in possession of
counterfeit coin, having known at the time when he
became possessed thereof that such coin was
counterfeit," the word "fraudulently" being omitted in the
charge. Unless it appears that A was in fact misled by this
omission, the error shall not be regarded as material.
(b) A is charged with cheating B, and the manner in which
he cheated B is not set out in the charge, or is set out
incorrectly. A defends himself, calls witnesses and gives
his own account of the transaction. The court may infer
from this that the omission to set out the manner of the
cheating is not material.
(c) A is charged with cheating B, and the manner in which
he cheated B is not set out in the charge. There were
many transactions between A and B, and A had no means
of knowing to which of them the charge referred, and
offered no defence. Court may infer from such facts that
the omission to set out the manner of was, in the case, a
material error.
(d) A is charged with the murder of Khoda Baksh on the
21st January 1882. In fact, the murdered persons name

was Haidar Baksh, and the date of the murder was the
20th January. 1882. A was never charged with any murder
but one, and had heard the inquiry before the Magistrate,
which referred exclusively to the case of Haidar Baksh.
The court may infer from these facts that A was not
misled, and that the error in the charge was immaterial.
(e) A was charged with murdering Haidar Baksh on the
20th January, 1882, and Khoda Baksh (who tried to arrest
him for that murder) on the 21st January, 1882. When
charged for the murder of Haidar Baksh, he was tried for
the murder of Khoda Baksh. The witnesses present in his
defence were witnesses in the case of Haidar Baksh. The
court may infer from this that A was misled, and that the
error was material.
The above illustrations show that when the accused in
not misled, the error is not material. For example, in the
case of Rawalpenta Venkalu vs State of Hyderabad,
1956, the charge failed to mention the Section number
34 of IPC but the description of the offence was
mentioned clearly. SC held that the the section number
was only of acedemic significance and the ommission was
immaterial.
Section 464 further provides that an order, sentence, or
finding of a court will not be deemed invalid merely on
the ground that no charge was framed or on the ground
of any error, omission or irregularity in the charge
including any misjoinder of charges, unless in the opinion
of the court of appeal, confirmation, or revision, a failure
of justice has in fact happened because of it. If such a
court of appeal, confirmation, or revision find that a

failure of justice has indeed happened, in case of

omission, it may order that a charge be immediately
framed and that the trial be recommenced from the point
immediately after the framing of the charge, and in case
of error, omission, or irregularity in the charge, it may
order new trial to be held upon a charge framed in
whatever manner it thinks fit.
As is evident, the object of these sections is to prevent
failure of justice where there has been only technical
breach of rules that does not affect the root of the case
as such. As held in the case of Kailash Gir vs V K
Khare, Food Inspector, 1981, the above two sections
read together lay down that whatever be the irregularity
in framing the charge, it is not fatal unless there is
prejudice caused to the accused.
Further, Section 216 allows the court to alter the charge
anytime before the judgement is pronounced.
Section 216:
(1) Any court may alter or add to any charge at any time
before judgment is pronounced.
(2) Every such alteration or addition shall be read and
explained to the accused.
(3) If the alteration or addition to a charge is such that
proceeding immediately with the trial is not likely, in the
opinion of the court to prejudice the accused in his
defence or the prosecutor in the conduct of the case the
court may, in its discretion, after such alteration or
addition has been made, proceed with the trial as if the
altered or added charge had been the original charge.
(4) If the alteration or addition is such that proceeding

immediately with the trial is likely, in the opinion of the

court to prejudice the accused or the prosecutor as
aforesaid, the court may either direct a new trial or
adjourn the trial for such period as may be necessary.
(5) lf the offence stated in the altered or added charge is
one for the prosecution of which previous section is
necessary, the case shall not be proceeded with until
such sanction is obtained, unless sanction had been
already obtained for a prosecution on the same facts as
those on which the altered or added charge is founded.
Thus, even if there is an error in a charge, it can be
corrected at a later stage. An error in a charge is not
important as long as the accused in not prejudiced and
principles of natural justice are not violated.
Difference between Charge and FIR
A First Information Report is a description of the
situation and the act that constitutes a cognizable offence
as given to the office in charge of a police station by any
person. Such information is signed by the person giving
the information. If the information is given orally, it is
reduced in writing by the officer in charge, read over to
the informant, and then signed by the person. The
substance of this information is also entered into a
register which is maintained by the officer. This is the first
time when an event is brought to the attention of the
police. The objective of the FIR is to put the police in
motion for investigating the occurance of an act, which
could potentially be a cognizable offence.
An FIR is a mere allegation of the happening of a
cognizable offence by any person. It provides a

description of an event but it may not necessarily provide

complete evidence. No judicial mind has to be applied
while writing the FIR. However, upon receipt of an FIR, the
police investigates the issue, collects relevant evidence,
and if necessary, places the evidence before a
magistrate. Based on these preliminary findings of the
police, the magistrate then formally prepares a charges ,
with which the perpetrator is charged.
Thus, an FIR is one path that leads to a Charge. An FIR is
vague in terms of the offences but Charge is a precise
formulation of the offences committed. An FIR is a
description of an event, while a Charge is a description of
the offences committed in that event. An FIR may or may
not name an offender but a charge is always against a
person. An FIR is always of a cognizable offence, but a
charge may also include a non-cognizable offence.
Principle of separate charges for distinct offences
The initial requirement in conducting a fair trial in
criminal cases is a precise statement of the charges of
the accused. This requirement is ensured by CrPC through
Sections 211 to 214, which define the contents of a
charge. Precise formulation of charges will amount to
nothing if numerous unconnected charges are clubbed
together and tried together. To close this gap, Section
218 enunciates the basic principle that for every distinct
offence there should be a separate charge and that every
such charge must be tried separately.
Section 218 says thus
(1) For every distinct offence of which any person is

accused there shall be a separate charge and every such

charge shall be tried separately:
Provided that where the accused person, by an
application in writing, so desires and the Magistrate is of
opinion that such person is not likely to be prejudiced
thereby the Magistrate may try together all or any
number of the charges framed against such person.
Illustration
A is accused of a theft on one occasion, and of causing
grievous hurt on another occasion. A must be separately
charged and separately tried for the theft and causing
grievous hurt.
The object of Section 218 is to save the accused from
being frustrated in his defense if distinct offences are
lumped together in one charge or in multiple charges but
tried in the same trial. Another reason is that the court
may become prejudiced against the accused if he were
tried in one trial for multiple charges resting on different
evidence since it might be difficult for the court not be
get influenced on one charge by evidence against him on
other charges.
It must be noted that Section 218 says "distinct offences"
must be charged and tried separated. It does not say
"every offence" or "each offence". It has been held
in Banwarilal Jhunjhunwala vs Union of India AIR
1963, that "distinct offence" is different from "every
offence" and "each offence". Separate charge is required
for distinct offence and not necessarily for every offence
or each offence. Two offences are distinct if they are not
identical and are not in any way interrelated. A distinct

offence may distinguished from other offences by

difference in time or place of commitment, victims of the
offence, or by difference in the sections of the law which
make the acts as offence.
However, a strict observance to Section 218 will lead to
multiplicity of trials, which is also not desirable. Therefore
sections 219 to 223 provide certain exceptions to this
basic rule. These are as follows [3TBDGDJ]
Exception 1. Three offences of the same kind
within a year Section 219 When a person is
accused of more than one offences of the same kind
within a span of twelve months, he may be charged and
tried at one trial for any number of such offences not
exceeding three. For example, if a person is accused of
theft in three different homes in the span 12 months, he
can be charged with all the three at once and tried at the
same trial. The period of 12 months is counted from the
occurance of the first offence up to the last offence.
An offence is considered to be of the same kind if it is
punishable by the same amount of punishment under the
same section of IPC or of the local or special law. Further,
if the attempt to commit an offence is an offence, then it
is considered an offence of the same kind for the purpose
of this section.
Exception 2. Offences committed in the course of
same transaction Section 220(1) If a person
commits multiple offences in a series of acts that
constitutes one transaction, he may be charged with and
tried in one trial for every such offence. The code does
not define the meaning of the term transaction. However,

it is well accepted that a precise definition of transaction

is not possible and even Supreme Court has not
attempted to define it. In case of State of AP vs
Cheemalapati Ganeshwara Rao, AIR 1963, SC
observed that, it would always be difficult to define
precisely what the expression means. Whether a
transaction is to be regarded as same would depend upon
the facts of each case. But is is generally thought that
were their is proximity of time, place, or unity of purpose
and design or continuity of action in a series of acts, it
may be possible that they form part of the same
transaction. It is however not necessary that every one of
these elements should coexist for considering the acts as
part of the same transaction.
For example, A commits house-breaking by day with
intent to commit adultery, and commits in the house so
entered, adultery with Bs wife. A may be separately
charged with, and convicted of, offences under sections
454(Lurking house trespass or house breaking with an
intention to commit offence punishable with
imprisonment) and 497(Adultery) of the Indian Penal
Code.
Exception 3 Offences of criminal breach of trust
or dishonest misappropriation of property and
their companion offences of falsification of
accounts Section 220(2) Usually the offence of
criminal breach of trust or dishonest misappropriation of
property is committed with the help of offence of
falsification of accounts to conceal the main offence. This
section allows such offences to be charged with and tried

at one trial.
Exception 4 Same act falling under different
definitions of offences Section 220(3) If an act
constitutes an offence under two or more separate
definitions of any law in force, the person may be charged
with and tried at one trial for each of the offences. For
example, A wrongfully strikes B with a cane. This act
constitutes an offence as per Section 323 (Voluntarily
causing hurt) as well as Section 252 (Assult or criminal
force otherthan on grave provocation). Thus, the person
may be charged with both and tried for both the offences
at the same trial.
Exception 5 Acts forming an offence, also
constituting different offences when taken
separately or in groups Section 220(4) When
several acts together constitute an offence and those
acts, which taken individually or in groups, also
constitune another offence or offences, the person
committing those acts may be be charged with and tried
at one trial. For example, A commits robbery on B, and in
doing so voluntarily causes hurt to him. A may be
separately charged, with and convicted of offences under
sections 323(Voluntarily causing hurt), 392(Robbery) and
394(Voluntarily causing hurt while committing robbery) of
the Indian Penal Code.
Exception 6 Where it is doubtful what offence has
been committed Section 221 If a single act or a
series of acts is of such nature that it is doubtful which of
the several offence the facts of the case will constitute,
the accused may be charged with having committed all or

any of such offences and all or any of such charges may

be tried at once. Further, in such a situation, when a
person is charged with an offence but according to
evidence it appears that he committed another offence,
he may be convicted of the offence which he is shown to
have committed even if he is not charged with that
offence. For example, A is accused of an, Act which may
amount to theft, or receiving stolen property, or criminal
breach of trust or cheating. He may be charged with
theft, receiving stolen property, criminal breach of trust
and cheating, or he may be charged with having
committed theft, or receiving stolen property or criminal
breach of trust or cheating.
Further, in the same case mentioned, lets say, A is only
charged with theft and it appears that he committed the
offence of criminal breach of trust, or that of receiving
stolen goods. He may be convicted of criminal breach of
trust of receiving stolen goods (as the case may be)
though he was not charged with such offence.
Another illustration is as follows A states on oath before
the Magistrate that he saw B hit C with a club. Before the
Sessions Court A states on oath that B never hit C. A may
be charged in the alternative and convicted of
intentionally giving false evidence, although it cannot to
be proved which of these contradictory statements was
false.
Exception 7 Certain persons may be charged
jointly Section 223 The following persons may be
charged and tried together, namely:(a) persons accused of the same offence committed in

the course of the same transaction;

(b) persons accused of an offence and persons accused of
abetment of, or attempt to commit, such offence;
(c) persons accused of more than one offence of the
same kind, within the meaning of section 219 committed
by them jointly within the period of twelve months;
(d) persons accused of different offences committed in
the course of the same transaction;
(e) persons accused of an offence which includes theft,
extortion, cheating, or criminal misappropriation, and
persons accused of receiving or retaining, or assisting in
the disposal or concealment of, property possession of
which is alleged to have been transferred by any such
offence committed by the first-named persons, or of
abetment of or attempting to commit any such lastnamed offence;
(f) persons accused of offences under sections 411 and
414 of the Indian Penal Code (45 of 1860) or either of
those sections in respect of stolen property the
possession of which has been transferred by one offence;
(g) persons accused of any offence under Chapter XII of
the Indian Penal Code (45 of 1860) relating to counterfeit
coin and persons accused of any other offence under the
said Chapter relating to the same coin, or of abetment of
or attempting to commit any such offence; and the
provisions contained in the former part of this Chapter
shall, so far as may be, apply to all such charges :
Provided that where a number of persons are charged
with separate offences and such persons do not fall within
any of the categories specified in this section, the

Magistrate may, if such persons by an application in

writing, so desire, and if he is satisfied that such persons
would not be prejudicially affected thereby, and it is
expedient so to do, try all such persons together.
"Every offence shall ordinarily be inquired and
tried by court within the local limits of whose
jurisdiction it was committed.
General Concept
When an accused appears or is brought before the court
for a trial, he may raise certain pleas or objections to
avoid the trial. For example, he may plead that the court
does not have jurisdiction in the case or that the offence
happened too long ago, or that he has already been tried
and acquitted for the same offence. Such pleas are meant
to stop the trial from proceeding further and discharge
the accused. However, such pleas may also be raised by
prosecution when the court does not have competency or
jurisdiction in the case.
Such pleas are supposed to be brought forth at the
beginning of a trial or as soon as charges are framed.
However, there is no explicit direction in Cr P C regarding
the timing for such pleas.
The follow are the pleas that can be raised
1. Court without Jurisdiction Jurisdiction of criminal
courts is of two kinds. One that determines the
competency of the court to try a specific offence and the
other that determines whether the offence happened in
the territory of the court, which is also known as
territorial jurisdiction.

Competency of the Court to try the offence Section

26 read with column 6 of the first schedule determines
which court can try a given offence. For example,
offences against public tranquility can be tried by any
magistrate while the offence of counterfeiting a
government stamp can be tried only by a Court of
Session. Similarly, only the prescribed court or magistrate
has the power for all the offences defined in IPC and other
laws.
Thus, any party to the proceeding can raise the plea that
the court is not competent to try the concerned offence.
Section 461 provides that it any magistrate, who is not
empowered to try an offence, tries the offender for that
offence, the proceedings shall be void.
Also, an executive magistrate has no power to try for any
offence.
Further, as per Section 479, no magistrate or judge can
try any case in which he is a party or in which he is
interested. If a trial is initiated in violation of this rule, a
plea can be raised in this regard.
Territorial Jurisdiction This jurisdiction is determined
according to Section 177 to 188 of CrPC. These rules have
been enacted mainly for the purpose of convenience of
the court, the investigating agency, the accused, and the
victim. The general concept is that only the court in
whose territory the offence or any part of offence has
happened, can try that offence. In simple terms, an
offence committed in Mumbai cannot be tried in a court
in Delhi. However, most case are not as simple as that.
For example, A hurts B by a knife in Dewas and D dies

because of the wound in Indore. In this case, both the

courts in Dewas and Indore have jurisdiction. However, if
the victim B lives in Bhopal and if FIR of his death is filed
in Bhopal, can A be tried in Bhopal? If not, and if A is tried
in Bhopal, A can raise a pleas to bar the trial in Bhopal.
Any violation of the rules of territorial jurisdiction does
not ipso factor vitiate the trial unless it has in fact
resulted in failure of justice. However, if a plea of
territorial jurisdiction is raised in the beginning of the
trial, then such objection must be sustained and the trial
must be stopped. It cannot gain legitimacy
under Section 462 in that case.
2. Time barred proceedings Earlier, any offence
committed could have been taken cognizance of after any
number of years. This caused grave injustice to the
accused as important witnesses became unavailable, or
important evidence was destroyed by time. For these
reasons, CrPC has now incorporated some general rules
for taking cognizance of the crimes within a specific
period of their happening. In general, the principle that
offences punishable with only fine or with imprisonment
up to 3 yrs should be tried within a limited time. The
provisions regarding such limitations are contains in
Section 467 to 473 and an accused can take advantage of
the appropriate section to raise the plea that the case
against him is barred by the prescribed period of
limitation.
Section 468 contains the basic rule which provides that
no court shall take cognizance of an offence punishable
with fine only or with imprisonment up to three yrs after

the expiry of the period of limitation. The period of

limitations are
1. 6 months, if the offence is punishable by fine only.
2. 1 yr, if the offence is punishable with imprisonment of
a term not exceeding 1 yr.
3. 3 yrs, if the offence is punishable with imprisonment of
a term not exceeding 3 yr.
These provisions are subject to any other provision which
might have been created explicitly for any particular
offence.
Trial of offences of serious nature, i.e. offences which
entail punishment of imprisonment of more than 3 yrs, or
death, as of yet, are not barred by any time limitation.
3. Plea of autrefois acquit and autrefois convict
This means that if the offender has already been tried
for the exact same offence before and he has been either
acquitted or convict in that trial, he cannot be tried again
on that offence. Art 20(2) of the constitution recognizes
this principle as a fundamental right. It says that no
person shall be prosecuted and punished for the same
offence more than once. While the article gives this right
only upon previous conviction, section 300 fully
incorporates this principle.
4. Disabilities of the accused Under the broad
interpretation of Article 21 by Supreme Court, an accused
has a fundamental right to be represented by a legal
practitioner in his trial. If he is indigent, it is the
responsibility of the state to provide a lawyer for him.
Section 304 also requires the court to assign a pleader for
the accused in certain situations. If this is not done, a

plea can be raised in this regard. If the trial still proceeds,

despite the objects, the trial is deemed to be vitiated.
Further, when the accused is of unsound mind and
consequently incapable of making his defence, the code
requires the court to postpone the trial until the accused
has ceased to be so. The accused can raise this plea for
objecting the trial.
5. Principle of issue estoppel
6. Application of res judicata
Causes of Juvenile Delinquency-Common sense stuff
Reasons for enacting this act
WHEREAS the Constitution has, in several provisions,
including clause (3) of article 15, clauses (e) and (f) of
article 39, articles 45 and 47, impose on the State a
primary responsibility of ensuring that all the needs of
children are met and that their basic human rights are
fully protected;
AND WHEREAS, the General Assembly of the United
Nations has adopted the Convention on the Rights of
the Child on the 20th November, 1989;
AND WHEREAS, the Convention on the Rights of the Child
has prescribed a set of standards to be adhered to by all
State parties in securing the best interests of the child;
AND WHEREAS, the Convention on the Rights of the Child
emphasizes social reintegration of child victims, to the
extent possible, without resorting to judicial proceedings;
AND WHEREAS, the Government of India has ratified the
Convention on the 11th December, 1992.
AND WHEREAS, it is expedient to re-enact the existing
law relating to juveniles bearing in mind the standards

prescribed in the Convention on the Rights of the Child,

the United Nations Standard Minimum Rules for the
Administration of Juvenile Justice, 1985 (the Beijing rules),
the United Nations Rules for the Protection of Juveniles
Deprived of their Liberty (1990), and all other relevant
international instruments.
BE it enacted by Parliament in the Fifty-first Year of the
Republic of India as follows:Art 15(3) State can make any special provision for
women and children.
Art 39 (e) It shall be the duty of the state to ensure
that the health and strength of workers, men and women,
and the tender age of children are not abused and that
citizens are not forced by economic necessity to enter
avocations unsuited to their age or strength;
Art 39 (f) It shall be the duty of the state to ensure
that children are given opportunities and facilities to
develop in a healthy manner and in conditions of freedom
and dignity and that childhood and youth are protected
against exploitation and
against moral and material abandonment.
Art 45/Now Art 21A The State shall endeavor to
provide, within a period of ten years from the
commencement of this Constitution, for free and
compulsory education for all children until they complete
the age of fourteen years.
Art 47 The State shall regard the raising of the level of
nutrition and the standard of living of its people and the
improvement of public health as among its primary duties
and, in particular, the State shall endeavor to bring about

prohibition of the consumption except for medicinal

purposes of intoxicating drinks and of drugs which are
injurious to health.
Art 51(k) It shall be the duty of the citizen of India who
is a parent or guardian to provide opportunities for
education to his child or, as the case may be, ward
between the age of six and fourteen years.
Child in need of care and protection
[OPMUNEVACCC]
As per Section 2(d), "child in need of care and
protection" means a child
1. who is found without any home or settled place or
abode and without any ostensible means of
subsistence,
2. who resides with a person (whether a guardian of the
child or not) and such person has threatened to kill or
injure the child and there is a reasonable likelihood of
the threat being carried out, or has killed, abused or
neglected some other child or children and there is a
reasonable likelihood of the child in question being
killed, abused or neglected by that person,
3. who is mentally or physically challenged or ill
children or children suffering from terminal diseases or
incurable diseases having no one to support or look
after,
4. who has a parent or guardian and such parent or
guardian is unfit or incapacitated to exercise control
over the child,
5. who does not have parent and no one is willing to
take care of or whose parents have abandoned him or

who is missing and run away child and whose parents

cannot be found after reasonable inquiry,
6. who is being or is likely to be grossly abused,
tortured or exploited for the purpose of sexual abuse or
illegal acts,
7. who is found vulnerable and is likely to be inducted
into drug abuse or trafficking,
8. who is being or is likely to be abused for
unconscionable gains,
9. who is victim of any armed conflict, civil commotion
or natural calamity;
Neglected Child
The term neglected child has been removed from the
current JJA and has been replaced with "Child in need of
care and protection" defined above. The old act defines
"neglected juvenile" as a juvenile who(i) is found begging; or
(ii) is found without having any home or settled place of
abode and without any ostensible means of subsistence
and is destitute;
(iii) has a parent or guardian who is unfit or incapacitated
to exercise control over the juvenile; or
(iv) lives in a brothel or with a prostitute or frequently
goes to any place used for the purpose of prostitution, or
is found to associate with any prostitute or any other
person who leads an immoral, drunken or depraved life;
(v) who is being or is likely to be abused or exploited for
immoral or illegal purposes or unconscionable gain;
Section 2(k) "juvenile" or "child" means a person who
has not completed eighteenth year of age;

Section 2(l) "juvenile in conflict with law" means a

juvenile who is alleged to have committed an offence;
Section 2(b) "Begging" means
i. soliciting or receiving alms in a public place or entering
into any private premises for the purpose of soliciting or
receiving alms, whether under any presence;
ii. exposing or exhibiting with the object of obtaining or
extorting alms, any sore, wound, injury, deformity or
disease, whether of himself proof any other person or of
an animal;
Composition and Procedure followed by Juvenile
Justice Court.
Composition
As per Section 4
(1) The State Government may constitute for a district or
a group of districts specified in the notification, one or
more Juvenile Justice Boards for exercising the powers
and discharging the duties conferred or imposed on such
Boards in relation to juveniles in conflict with law under
this act.
(2) A Board shall consist of a Metropolitan Magistrate or a
Judicial Magistrate of the first class, as the case may be,
and two social workers of whom at least one shall be a
woman, forming a Bench and every such Bench shall
have the powers
conferred by the Code of Criminal Procedure,on a
Metropolitan Magistrate or, as the case may be, a Judicial
Magistrate of the first class and the Magistrate on the
Board shall be designated as the principal Magistrate.
(3) No Magistrate shall be appointed as a member of the

Board unless he has special knowledge or training in child

psychology or child welfare and no social worker shall be
appointed as a member of the Board unless he has been
actively involved in health, education, or welfare
activities pertaining to children for at least seven years.
(4) The term of office of the members of the Board and
the manner in which such member may resign shall be
such as may be prescribed.
(5) The appointment of any member of the Board may be
terminated after holding inquiry, by the State
Government, if
i. he has been found guilty of misuse of power vested
under this act,
ii. he has been convicted of an offence involving moral
turpitude, and such conviction has not been reversed or
he has not been granted full pardon in respect of such
offence,
iii. he fails to attend the proceedings of the Board for
consecutive three months without any valid reason or he
fails to attend less than three fourth of the sittings in a
year.
Section 5 Procedure
(1) The Board shall meet at such times and shall, observe
such rules of procedure in regard to the transaction of
business at its meetings, as may be prescribed.
(2) A child in conflict with law may be produced before an
individual member of the Board, when the Board is not
sitting.
(3) A Board may act notwithstanding the absence of any
member of the Board, and no order made by the Board

shall be invalid by reason only of the absence of any

member during any stage of proceedings: Provided that
there shall be at least two members including the
principal Magistrate present at the time of final disposal
of the case.
(4) In the event of any difference of opinion among the
members of the Board in the interim or final disposition,
the opinion of the majority shall prevail, but where there
is no such majority, the opinion of the principal
Magistrate, shall prevail.
Section 6 Powers of the Board
(1) Where a Board has been constituted for any district or
a group of districts, such Board shall, have power to deal
exclusively with all proceedings under this Act, relating to
juvenile in conflict with law.
(2) The powers conferred on the Board by or under this
Act may also be exercised by the High Court and the
Court of Session, when the proceedings comes before
them in appeal, revision or otherwise.
Orders that can be passed for delinquent children
Section 15 Orders that may be passed regarding
a Juvenile
1. Where a Board is satisfied on inquiry that a juvenile
has committed an offence, then notwithstanding anything
to the contrary contained in any other law for the time
being in force, the Board may, if it thinks so fit,(a) allow the juvenile to go home after advice or
admonition following appropriate inquiry against and
counseling to the parent or the guardian and the juvenile;
(b) direct the juvenile to participate in group counseling

and similar activities;

(c) order the juvenile to perform community service;
(d) order the parent of the juvenile or the juvenile himself
to pay a fine, if he is over fourteen years of age and earns
money;
(e) direct the juvenile to be released on probation of good
conduct and placed under the care of any parent,
guardian or other fit person, on such parent, guardian or
other fit person executing a bond, with or without surety,
as the Board may require, for the good behavior and wellbeing of the juvenile for any period not exceeding three
years;
(f) direct the juvenile to be released on probation of good
conduct and placed under the care of any fit institution
for the good behavior and well-being of the juvenile for
any period not exceeding three years;
(g) make an order directing the juvenile to be sent to a
special home,i. in the case of juvenile, over seventeen years but less
than eighteen years of age for a period of not less than
two years;
ii. in case of any other juvenile for the period until he
ceases to be a juvenile :
Provided that the Board may, if it is satisfied that having
regard to the nature of the offence and the circumstances
of the case it is expedient so to do, for reasons to be
recorded, reduce the period of stay to such period as it
thinks fit.
2. The Board shall obtain the social investigation report
on juvenile either through a probation officer or a

recognized voluntary organization or otherwise, and shall

take into consideration the findings of such report before
passing an order.
3. Where an order under clause (d), clause (e) or clause
(f) of sub-section (1) is made, the Board may, if it is of
opinion that in the interests of the juvenile and of the
public, it is expedient so to do, in addition make an order
that the juvenile in conflict with law shall remain under
the supervision of a probation officer named in the order
during such period, not exceeding three years as may be
specified therein, and may in such supervision order
impose such conditions as it deems necessary for the due
supervision of the juvenile in conflict with law .
Provided that if at any time afterwards it appears to the
Board on receiving a report from the probation officer or
otherwise, that the juvenile in conflict with law has not
been of good behavior during the period of supervision or
that the fit institution under whose care the juvenile was
placed is no longer able or willing to ensure the good
behavior and well-being of the juvenile it may, after
making such inquiry as it deems fit, order the juvenile in
conflict with law to be sent to a special home.
The Board shall while making a supervision order under
sub-section (3), explain to the juvenile and the parent,
guardian or other fit person or fit institution, as the case
may be, under whose care the juvenile has been placed,
the terms and conditions of the order shall forthwith
furnish one copy of the supervision order to the juvenile,
the parent, guardian or other fit person or fit institution,
as the case may be, the sureties, if any, and the

probation officer.
In case of Municipal Corporation of Delhi vs
Rattanlal, 1971, it was held that while allowing the
release of a juvenile, the court should consider the
following circumstances of the case, circumstances of
the accused, age, and family background.
Section 16 Orders that may not be passed against
a Juvenile
(1) Notwithstanding anything to the contrary contained in
any other law for the time being in force, no juvenile in
conflict with law shall be sentenced to death or life
imprisonment, or committed to prison in default of
payment of fine or in default of
furnishing security :
Provided that where a juvenile who has attained the age
of sixteen years has committed an offence and the Board
is satisfied that the offence committed is of so serious in
nature or that his conduct and behavior have been such
that it would not be in his interest or in the interest of
other juvenile in a special home to send him to such
special home and that none of the other measures
provided under this Act is suitable or sufficient, the Board
may order the juvenile in conflict with law
to be kept in such place of safety and in such manner as
it thinks fit and shall report the case for the order of the
State Government.
(2) On receipt of a report from a Board under sub-section
(1), the State Government may make such arrangement
in respect of the juvenile as it deems proper and may
order such juvenile to be kept under protective custody at

such place and on such conditions as it thinks fit :

Provided that the period of detention so ordered shall not
exceed the maximum period of imprisonment to which
the juvenile could have been sentenced for the offence
committed.
In Rejesh Kheton vs State of W B, 1983, it was
observed that the main object of the provision contained
in Section 16 of the act is to prevent the juvenile from the
contact of hardened criminals so that they are saved from
contamination.
In Sheela Barse vs U of I, AIR 1986, it was held that
juveniles should not be held in jail but in Shelter Homes.
Observation Home Section 8
Special Home Section 9
Bail to Juvenile Section 12
Protections given by the legislature and the
judiciary to juvenile delinquents
Protection by Legislature The legislature has enacted
several laws for the protection of Juveniles. Most
important among them is Juvenile Justice (Care and
Protection) Act, 2000.
Legal Protection
Through Juvenile Justice (Care and Protection) Act, 2000,
several measures have been adopted to ensure that a
juvenile is not punished or treated like hardened
criminals. Some of the measures are
Hearing of cases involving juvenile by Juvenile Justice
Board
Bail Provisions for juvenile

 No prison term to juvenile.

No joint proceeding of Juvenile and Non Juvenile
Removal of disqualification attached to conviction
Social Protection
Juvenile Justice Act also contains measures to ensure
that a juvenile in conflict of law is given opportunities to
reform.
Establishment of Observation and Special Home
Education and Training facilities
Preventive Measures
Several acts such as employment of juveniles in
dangerous activities, forcing juveniles to beg, or steal, or
giving intoxicating substances to a juvenile, publication of
names or other details of a juvenile in conflict of law in
media, have been made cognizable offences by JJA.
Supervision by Probation Officer to ensure that a
juvenile is not influenced by bad elements.
Several other acts such as Factories Act, 1948 include
provisions for protection of Juveniles.
Constitutional Provisions
Article 21A Right to education
Article 24 Prohibition of employment of children in
factories, etc. No child below the age of fourteen years
shall be employed to work in any factory or mine or
engaged in any other hazardous employment.

Article 39 provides that that children are given

opportunities and facilities to develop in a healthy
manner and in conditions of freedom and dignity and that
childhood and youth are protected against exploitation
and against moral and material abandonment.
Article 45 Provision for free and compulsory education for
children
Protections given by Judiciary
Judiciary has always been very sympathetic to the cause
of Juveniles. Even before appropriate laws were enacted,
Judiciary promoted directives for the protection of
juveniles through its judgement. For example, it was the
judiciary, which emphasized on Education for children by
making it a fundamental right under Article 21.
Probation of Offenders Act
Main Features of the Act / Powers of the court
regarding release of certain offenders
Depending on the circumstances of the case, a court may
release the person in two ways release after
admonishing the person, which is provided in Section 3,
and release on probation of good conduct, which is
provided in Section 4. Both are explained below.
Release After Admonishing
Admonishing means to warn or reprimand. In this mode
of release, the court scolds the person, and in a way, tries
to appeal to the good conscious of the person and
releases him. Section 3 says thus:
When any person is found guilty of having committed an
offence punishable under Section 379 or Section 380 or
Section 381 or Section 404 or Section 420 of the Indian

Penal Code or any offence punishable with imprisonment

for not more than two years, or with fine, or with both,
under the Indian Penal Code or any other law, and no
previous conviction is proved against him and the court
by which the person is found guilty is of opinion that,
having regard to the circumstances of the case including
the nature of the offence and the character of the
offender, it is expedient so to do, then, notwithstanding
anything contained in any other law for the time being in
force, the court may, instead of sentencing him to any
punishment or releasing him on probation of good
conduct under section 4, release him after due
admonition.
The conditions required to be released under this section
are
1. The offence must be punishable with imprisonment for
less than 2 yrs or with only fine or with both. Or if the
offence is punishable under any of the Sections 379, 380,
381, 404, and 420.
2. The offender does not have any prior convictions.
If the above conditions are satisfied, then the court must
take into consideration the nature of the crime and the
antecedents and character of the offender and if it thinks
suitable, it can release the offender after warning.
Release on Probation
As per Section 4, if any person is found guilty of having
committed an offence not punishable with death or
imprisonment for life and the court by which the person is
found guilty is of opinion that, having regard to the
circumstances of the case including the nature of the

offence and the character of the offender, it is expedient

to release him on probation of good conduct, then,
notwithstanding anything contained in any other law for
the time being in force, the court may, instead of
sentencing him at once to any punishment, direct that he
be released on his entering into a bond, with or without
sureties, to appear and receive sentence when called
upon during such period, not exceeding three years, as
the court may direct and in the meantime to keep the
peace and be of good behavior. The section further
requires that the offender or his surety has a fixed place
of residence or regular occupation in a place where the
court exercises jurisdiction.
Also, before making any such order, the court shall take
into consideration the report, if any, of the probation
officer concerned in relation to the case. However, it is
not necessary that the court has to act on probation
officers report. It can also gather information from other
source and on its own analysis.
The court may also require the offender to remain under
the supervision of a probation officer during certain
period, if it thinks that it is in the interests of the offender
and of the public. It can also impose appropriate
conditions which might be required for such supervision.
In case the court does specify such conditional release, it
must require the offender has to enter into a bond, with
or without sureties, enumerating the conditions. The
conditions may relate to place of residence, abstention
from intoxicants, or any other matter as the court thinks
appropriate to ensure that the crime is not repeated.

As per Section 5, the Court directing the release of an

offender under section 3 or section 4, may, if it thinks fit,
make at the same time a further order directing him to
pay(a) such compensation as the court thinks reasonable for
loss or injury caused to any person by the commission of
the offence ; and
(b) such costs of the proceedings as the court thinks
reasonable.
Offenses in which benefit of probation can and cannot be
granted
Section 4, as described above, gives a general direction
to the court for deciding when and when not to give the
benefit of probation. The words, "if the court is of the
opinion" basically give discretionary power to the court in
this respect. Section 6, however, tries to impress upon
the court to lean in favor of giving benefit in cases of
young and immature adults. When any person under
twenty-one years of age is found guilty of having
committed an offence punishable with imprisonment (but
not with imprisonment for life), the court by which the
person is found guilty shall not sentence him to
imprisonment unless it is satisfied that, having regard to
the circumstances of the case including the nature of the
offence and the character of the offender, it would not be
desirable to deal with him under section 3 or section 4,
and if the court passes any sentence of imprisonment on
the offender, it shall record its reasons for doing so. For
the purpose of satisfying itself whether it would not be
desirable to deal under section 3 or section 4, the court

shall call for a report from the probation officer and

consider the report, if any, and any other information
available to it relating to the character and physical and
mental condition of the offender.
Thus, even though no mathematical rule is given, the
general intention of the legislature is to give the benefit
of probation as much as possible. In Jugal Kishore Prasad
vs State of Bihar 1972, the Supreme Court observed that
the object of the Probation of Offenders Act, "is in
accordance with the present trend in the field of
penology, according to which efforts should be made to
bring about correction and reformation of the individual
offenders and not to resort to retributive justice. Modern
criminal jurisprudence recognizes that no one is a born
criminal and that a good many crimes are the product of
socio-economic milieu."
In absence of a precise formula to determine when and
when not the benefit of probation can be given, we have
to look at SC court judgments to understand what kind of
offenses are eligible for this benefit. SC has accepted the
applicability of probation for many kinds of offences. For
example, in Isherdas v. State of Punjab, the Supreme
Court held that the Probation of Offenders Act was
applicable to the offenses under the Prevention of Food
Adulteration Act, 1954.
In case of Mohamad Aziz Mohamed Nasir vs State Of
Maharashtra, AIR 1976, the appellant was below 21 years
of age. The appellant was at one time a well known child
film actor and won several awards for acting in films.
Subsequently he fell in bad company and took to evil

ways. SC held that even if the point relating to Section 6

is not raised before the High Court, the court was bound
to take notice of the provisions of the section and give its
benefit to the applicant. It further held that Section 6 lays
down an injunction not to impose a sentence of
imprisonment on a reason who is under 21 years of age
and if found guilty of having committed an offence
punishable with imprisonment other the that for if unless
it is satisfied that it would not be desirable to deal with
him under Section 3 or Section 4. This inhibition on the
power of the court to impose a sentence of imprisonment
applies not only at the state of trial but also at the stage
of High Court or any other court when the case comes
before it in appeal or revision.
However, in Uttam Singh vs Delhi Administration, 1971,
the appellant was of 36 yrs of age and was caught with 3
sets of playing cards and obscene photographs. SC
refused to allow him the benefit of release on probation
having regards to his age and nature of crime.
There have been cases where the court has let of even
rapists on probation and there have been cases where
even minor offenses have not been given the benefit of
probation. It can be said that this benefit is given on case
to case basis after looking at the peculiarities of the case.
It is not possible to categorize the offences in this
respect.
Procedure when the offender breaches the conditions of
Probation
As per Section 9, if the court which passes an order under
section 4 in respect of an offender or any court which

could have dealt with the offender in respect of his

original offence has reason to believe, on the report of a
probation officer or otherwise, that the offender has failed
to observe any of the conditions of the bond or bonds
entered into by him, it may issue a warrant for his arrest
or may, if it thinks fit, issue a summons to him and his
sureties, if any, requiring him or them to attend before it
at such time as may be specified in the summons.
The court before which an offender is so brought or
appears may either remand him to custody until the case
is concluded or it may grant him bail, with or without
surety, to appear on the date which it may fix for hearing.
If the court, after hearing the case, is satisfied that the
offender has failed to observe any of the conditions of the
bond or bonds entered into by him, it may forthwith
(a) sentence him for the original offence; or
(b) where the failure is for the first time, then, without
prejudice to the continuance in force of the bond, impose
upon him a penalty not exceeding fifty rupees.
(4) If a penalty imposed under clause (b) of sub-section
(3) is not paid within such period as the court may fix, the
court may sentence the offender for the original offence.
It is important to note that the sentencing in respect of
which the probation is given is merely suspended when
the offender is released on probation under Section 4.
Thus, if any condition of the probation is violated, the
court may sentence the offender for the original offence
without conducting a fresh trial.
Probation Officer and his duties
As per Section 13, a probation officer under this Act shall

be (a) a person appointed to be a probation officer by

the State Government or recognised as such by the State.
Government ; or (b) a person provided for this purpose by
a society recognized in this behalf by the State
Government; or (c) in any exceptional case, any other
person who, in the opinion of the court, is fit to act as a
probation officer in the special circumstances of the case.
Section 14 Duties of probation officers
A probation officer shall, subject to such conditions and
restrictions, as may be prescribed,(a) inquire, in accordance with any directions of a court,
into the circumstances or home surroundings of any
person accused of an offence with a view to assist the
court in determining the most suitable method of dealing
with him and submit reports to the court.
(b) supervise probationers and other persons placed
under his supervision and, where necessary, endeavor to
find them suitable employment ;
(c) advise and assist offenders in the payment of
compensation or costs ordered by the court ;
(d) advise and assist, in such cases and in such manner
as may be prescribed, persons who have been released
under section 4; and
(e) perform such other duties as may be prescribed.
Section 360 of CrPC and Section 4 of Probation of
Offenders Act
As per Section 19, in the states where Probation of
Offenders Act is enacted, Section 360 of CrPC shall cease
to apply. Thus, it is clear that Section 4 of Probation of
Offenders Act has overriding effect.

Section 360 of CrPC Order to release on probation of

good conduct or after admonition :(1)When any person
not under twenty-one years of age is convicted of an
offence punishable with fine only or with imprisonment
for a term of seven years or less, or when any person
under twenty-one years of age or any woman is convicted
of an offence not punishable with death or imprisonment
for life, and no previous conviction is proved against the
offender, if it appears to the Court before which he is
convicted, regard being had to the age, Character or
antecedents of the offender, and to the circumstances in
which the offence was committed, that it is expedient
that the offender should be released on probation of good
conduct, the Court may, instead of sentencing him at
once to any punishment, direct that he be released on his
entering into a bond, with or without sureties, to appear
and receive sentence when called upon during such
period (not exceeding three years) as the Court may
direct, and in the meantime to keep the peace and be of
good behavior.
Differences and Short Notes.
Summons Case and Warrant Case
As per Section 2(w), "summons-case" means a case
relating to an offence, and not being a warrant-case and
as per Section 2 (x), "warrant-case" means a case
relating to an offence punishable with death,
imprisonment for life or imprisonment for a term
exceeding two years. Cr P C classifies an offence as either
cognizable or non-cognizable, and a trial procedure as

summons case or warrant case. Thus, the terms

summons case and warrant case are in reference to the
procedure adopted for the trial of the case. Thus, the
difference between the two can be seen from the point of
view of their trial procedures as highlighted below
D2CCPAWO
Summon
s Case

Warrant
case

Cr P C
prescribes
only one
procedure
for all
summons
cases,
whether
instituted
upon a
police
report or
otherwise
.

Cr PC
prescribes
two
procedure
s for the
trial of a
warrant
case my
magistrate
one for
case
instituted
upon a
police
report and
one for
case
instituted
otherwise
than on a

police
report.
No charge
needs to
be framed
only the
particular
s of the
offence
needs to
be
conveyed
to the
accused.

A charge
needs to
be framed
against
the
accused.

As per S.
252, if the
accused
pleads
guilty, the
magistrat
e must
record the
plea of
the
accused
and may,
in his
discretion

As per S.
241, After
the charge
is framed,
the
accused
may plead
guilty and
the
magistrate
may
convict
him on his
discretion.

, convict
him on
such plea.
Accused
my plead
guilty by
post
without
appearing
before the
magistrat
e.
The
accused
may be
acquitted,
if the
complaina
nt is
absent or
if the
complaina
nt dies.

Accused
must
appear
personally.

Magistrate
can
discharge
the
accused if
complaina
nt is
absent, or
no charge
is framed,
or if the
offence is
compound
able and
non
cognizable

The
complaina
nt may,
with the
permissio
n of the
court,
withdraw
the
complaint
against
the
accused.

The
complaina
nt may,
with the
permission
of the
court,
withdraw
the
remaining
charges
against an
accused, if
he is
charged
with
several
offences
and
convicted
on one or
more of
them.

When a
warrant
case is
tried as a

When a
summons
case is
tried as a

summons
case and
if the
accused
is
acquitted
under S.
255, the
acquittal
will only
amount to
discharge.

warrant
case and if
the
accused is
discharge
d under S
245, the
discharge
will
amount to
acquittal.

Trial of a
warrant
case as a
summons
case it is
a serious
irregularit
y and the
trial is
vitiated if
the
accused
has been
prejudice
d.

Trial of a
summons
case as a
warrant
case is an
irregularit
y which is
curable
under
Section
465.

A warrant

summons
case
cannot
have
charges
that
require a
warrant
case.

case may
contain
charges
that
reflect a
summons
case.

Accused
gets only
one
opportuni
ty.

Accused
may get
more than
one
opportunit
y to crossexamine
the
prosecutio
n witness.

A charge
under a
warrant
case
cannot be
split up
into its
constitue
nts for

trial
under
summons
case.

No such
power to
the
magistrat
e in
summons
case.

After
convicting
the
accused,
the
magistrate
may take
evidence
regarding
previous
conviction
not
admitted
by the
accused.

All cases
which are
not
punishabl
e by
death,
imprison
ment for
life, or for

All cases
which are
punishable
by death,
imprisonm
ent for life,
or for
more than
two years

more than
two years
are
summons
cases.
Conversi
on
As
per Secti
on 259, a
summons
case can
be
converted
into a
warrant
case if the
case
relates to
an
offence
that
entails
more than
6 months
of
imprison
ment as
punishme

are
warrant
cases.
A warrant
case
cannot be
converted
into a
summons
case.

nt and the
judge
feels that
in the
interest of
justice it
the case
should be
tried as a
warrant
case.
It is important to note that the question whether a
summons or a warrant should be issued in the case is not
related to whether the case is a summons case or a
warrant case.
Compoundable and Non Compoundable Offences
Some offences largely affect only the victim and no
considerable harm is considered to be done to the
society. In such offences, if the offender and victim
compromise, there is no need to waste courts time in
conducting a trial. The process of reaching a compromise
is called Compounding. Conceptually, such offences, in
which a compromise can be done and a trial can be
avoided, are called Compoundable offence. Rest of the
offences are non-compoundable. Technically, offences
classified as Compoundable by Section 320 of Cr P C are
compoundable. Section 320 specifies two kinds of
Compoundable offences one where permission of court
is required before compounding can be done for example,

voluntarily causing grievous hurt, Theft, criminal breach

of trust, assault on a woman with intention to outrage her
modesty, etc. and one where permission of the court is
not required for example, causing hurt, adultery,
defamation, etc. As per S. 320(3), if the abetment of an
offence is an offence and if the offence is compoundable
then abetment is also compoundable.
Only the person, who is specified in the classification
tables in Section 320, has the right to compound the
offence. The person is usually the victim. The offender
cannot demand compounding as a right.
However, when an offender has been committed to trial
or when he has been convicted and his appeal is pending,
compounding can only be done with the leave of the
court to which he is committed or to which the trial is
pending. If an offender is liable for enhanced punishment
or a different punishment on account of a previous
conviction, compounding cannot be done. High Court and
Court of Session may, under their power of revision in
Section 401, can allow any person to compound any
compoundable offence.
When an offence is compounded, it is equivalent to
an acquittal.
Compou
ndable
Offence
Section
320

Non
Compou
ndable
Offence

Offences

Rest of

classified
as
compoun
dable by
S. 320 of
CrPC

the
offences

Offence
mostly
affects a
private
party.

Private
party as
well as
society
both are
considera
bly
affected
by the
offence.

The
victim
and the
offender
may
reach
comprom
ise with
or
without
the
permissio

No
comprom
ise is
allowed.
Even
court
does not
have the
power to
compoun
d the
offence.

n of the
court
dependin
g on the
offence.
Upon
comprom
ise, the
offender
is
acquitted
without
any trial.

Full trial
is held
and
acquittal
or
convictio
n is given
as per
the
evidence.

The case of B S Joshi vs State of Haryana, AIR

2003 is interesting in this regard. The case was about the
matter related to Section 498A, which is noncompoundable offence. In this case, the parties reached a
compromise but the High Court refused to quash the FIR,
on the ground that the offence is non-compoundable.
However, SC held that in the backdrop of the
interpretation of the various relevant provisions of the
Code under Chapter XIV and of the principles of law
enunciated by this Court in a series of decisions relating
to the exercise of the extraordinary power under Article
226 or the inherent powers under Section 482 of the
Code, such power could be exercised either to prevent
abuse of the process of any court or otherwise to secure

the ends of justice, though it may not be possible to lay

down any precise, clearly defined and sufficiently
channelised and inflexible guidelines or rigid formulate
and to give an exhaustive list of myriad kinds of cases
wherein such power should be exercised. It further
observed that in this case, the parties were not asking for
compounding the offence but for quashing the FIR. It
observed that since because of the amicable settlement,
there is no chance of conviction and in such a case the
court has the power to quash the proceeding.
Information and Complaint
Informat
ion

Complai
nt

No legal
definition
. It is
used in
its
regular
English
meaning.

As
per Sect
ion
2(d), a
complai
nt
means
any
allegatio
n made
orally or
in
writing
to a
magistra
te, with

a view
to his
taking
action
under
this
code
(CrPC),
that
some
person,
whether
known
or
unknow
n, has
committ
ed an
offence,
but does
not
include
a police
report.
No action
from the
magistrat
e is
expected.

The
purpose
of
complai
nt is that

the
magistra
te takes
action
on it and
provide
relief.

No
cognizan
ce is
taken.

It may
include
informati
on about
commissi
on of
offences,
apprehen
sion
about
breach of
peace,
and

Magistra
te takes
cognizan
ce of the
offence
as per
Section
190.
It is
always
about
commiss
ion of an
offence.

presence
of
absconde
r and
suspecte
d persons
to police
officers
or
magistrat
e. Thus,
an
informati
on may
not
necessari
ly about
an
offence.
Sufficient grounds for commitment and Sufficient
grounds for conviction
Sufficien
t
grounds
for
commit
ment

Suffici
ent
ground
s for
convict
ion

When a

Upon

magistrat
e takes
cognizanc
e of an
offence
under
Section
190
(upon
receipt of
a
complaint
or
otherwise
), he
examines
the
complaint
in
accordan
ce with
Section
200 by
examinin
g the
facts and
the
witnesses
. If he

holding
the
trial, if
the
court is
satisfie
d with
the
evidenc
e
provide
d by the
prosecu
te that
the
accused
is guilty
of the
alleged
offence,
he
convicts
the
offender
.

finds that
the
complaint
is with
merits,
the case
is
deemed
committe
d for trial
and the
magistrat
e issues
the
process
under
Section
204. If
the
offence is
exclusivel
y triable
by Court
of
Session,
the
magistrat
e
commits

the case
to Court
of Session
under
Section
209.
At this
stage it is
not
considere
d whether
the
grounds
are
sufficient
for
convictio
n.

The
evidenc
e must
prove
the
guilt of
the
accused
without
any
doubt.

Discharge and Acquittal

Discharge

Acquittal

Session
Trial
As
per Sectio
n 227, if,
upon
considerati
on of the

Session
Trial
If after
evaluating
the
evidence
given by
the

record of
the case
and the
documents
submitted
therewith,
and after
hearing the
submission
s of the
accused
and the
prosecutio
n in this
behalf, the
Judge
considers
that there
is not
sufficient
ground for
proceeding
against the
accused,
he shall
discharge
the
accused
and record

prosecute,
the judge
considers
that there
is no
evidence
that the
accused
has
committed
the
offence,
the judge
acquits the
offender
underSecti
on 232.
However, if
the
offender is
not
acquitted
under
Section
232, he is
permitted
to give his
defense
and

his reasons
for so
doing.

evidence.
After
hearing
the
arguments
of both the
parties, the
court may
acquit of
convict the
person
underSecti
on 235.

Warrant
Trial By
Magistrat
e
As
per Sectio
n 239, if,
upon
considering
the police
report and
the
documents
sent with it
under
section 173

Warrant
Trial By
Magistrat
e
As per
Section
248, if, in
any case
under this
Chapter in
which a
charge has
been
framed,
the
Magistrate

and
making
such
examinatio
n, if any, of
the
accused as
the
Magistrate
thinks
necessary
and after
giving the
prosecutio
n and the
accused an
opportunity
of being
heard, the
Magistrate
considers
the charge
against the
accused to
be
groundless,
he shall
discharge
the

finds the
accused
not guilty,
he shall
record an
order of
acquittal.

accused,
and record
his reasons
for so
doing.
Discharge
does not
mean that
the
accused
has not
committed
the
offence. It
just means
that there
is not
enough
evidence
to proceed
with the
trial.

Acquittal
means that
the
accused
has been
held
innocent.

If further
evidence is
gathered
later on,
the
accused

The
accused
cannot be
tried again
for the
same

may be
tried again.

offence
once he
has been
acquitted.

Cognizable offence and Non-cognizable offence

Cogniza
ble
offence

Non
Cognizabl
e offence

Defined
in
Section
2(c)
"cogniza
ble
offence"
means
an
offence
for
which,
and
"cogniza
ble
case"
means a
case in
which, a
police

Defined in
Section
2(l) "noncognizable
offence"
means an
offence for
which, and
"noncognizable
case"
means a
case in
which, a
police
officer has
no
authority
to arrest
without

officer
may, in
accorda
nce with
the First
Schedul
e or
under
any
other
law for
the time
being in
force,
arrest
without
warrant.
Example
s
Murder,
Dowry
death,
grevious
hurt,
theft.

warrant.
Example
keeping a
lottery
office,volu
ntarily
causing
hurt,
dishonest
misapprop
riation of
property.

Police
has to
record
informat

As per
Section
155, Police
has to

ion
about a
cogniza
ble
offence
in
writing
as per
Section
154.

enter
informatio
n in
register
prescribed
for it and
refer the
informant
to a
magistrate
.

Police
can start
investig
ation
without
the
order of
a
magistra
te.

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

In
general,
cogniza
ble
offences
are of
serious

nature
which
involve
imprison
ment of
more
than
three
years.
However
, there is
no such
precise
rule. To
be
cogniza
ble, an
offence
must be
declared
so by
the law
defining
that
offence.
Several
offences
which
carry

less
prison
term
such as
rioting
(2 yrs)
have
been
declared
cogniza
ble,
while
several
with
bigger
prison
term
such as
False
Evidenc
e (7 yrs)
or Rape
by a
man
with his
own wife
of not
less
than 12

yrs have
been
declared
noncogniza
ble.
First Information Report
The name FIR is given to the information given by any
person about a cognizable offence and recorded by the
police in accordance withSection 154. As per this
section, every information relating to the commission of a
cognizable offence, if given orally to an officer in charge
of a police station, shall be reduced to writing by him or
under his direction, and be read over to the informant;
and every such information, whether given in writing or
reduced to writing as aforesaid, shall be signed by the
person giving it, and the substance thereof shall be
entered in a book to be kept by such officer in such form
as the State Government may prescribe in this behalf.
SC in the case of State of Bombay vs Rusy Mistry, AIR
1960, defined FIR as so A FIR means the information,
by whomsoever given, to the officer in charge of a police
station in relation to the commission of a cognizable
offence and which is first in point of time and on the
strength of which the investigation into that offence is
commenced.
Thus, FIR is nothing but information of the nature of a
complaint or accusation about a cognizable offence given
by any person to the police so that the police can start

investigation. When a person reports any information

about a cognizable offence to the police, the police is
bound to register a case and proceed with investigation.
However, for police to investigate the matter, the offence
must be a cognizable offence. The police is not allowed to
investigate a non-cognizable offence without an order
from a magistrate. So, once the duty officer is certain that
the offence alleged to have been committed is a
cognizable offence, he directs the complainant to put his
statement in writing. In the presence of the complainant,
the duty officer shall complete all the columns in the FIR
register with the information given by the complainant.
He shall then read out all the contents of the FIR
registered to the complainant. Once the complainant is
certain that all the details have been correctly written, he
should sign the FIR.
FIR merely contains the facts of the offence as known by
the informant. The FIR is a statement by the complainant
of an alleged offence. The informant is not required to
prove his allegations in any manner at the police station.
It is the job of the police to ascertain facts, verify details
and substantiate the charges or otherwise.
However, the facts must not be vague. The facts must
divulge at least some concrete information about the
offence committed. In case ofTapinder Singh vs State,
1972, SC held that when a telephone message did not
disclose the names of the accused nor did it disclose the
commission of a cognizable offence, it cannot be called a
FIR.
In case of State of UP vs R K Shrivastava, 1989, SC

held that if the allegations made in an FIR do not

constitute a cognizable offence, the criminal proceeding
instituted on the basis of the FIR should be quashed.
Sometimes multiple persons may report the same
incident and in such situation the police must use
commonsense and record one statement as FIR. Usually,
the statement that contains enough information to allow
the police to proceed with investigation is recorded as
FIR.
Evidentiary Value of FIR
A FIR is not substantive evidence that is, it is not
evidence of the facts which it mentions. However, it is
very important since it conveys the earliest information
about the occurrence of an offence and it can be used to
corroborate the information under Section 157 of Indian
Evidence Act or to contradict him under Section 145 of
Indian Evidence Act, if the informant is called as a witness
in a trial. It is considered that FIR has a better
corroborative value if it is recorded before there is time
and opportunity to embellish or before the memory of the
information becomes hazy. There must be a reasonable
cause for the delay. For example, in case of Harpal
Singh vs State of HP, 1981,involving rape, the FIR was
registered after 10 days. It was held that the delay was
reasonable because it involved considerable matter of
honor for the family and that required time for the family
to decide whether to take the matter to court or not. As
FIR can also be used in cross examination of the
informant.
However, if the FIR is made by the accused himself, it

cannot be used against him because of Section 25 of

Evidence act which forbids any confession made to the
police to be used against the accused.
A FIR can also be used as a dying declaration under
Section 32 of Indian Evidence Act.
Summary Trial
1. A kind of fast track proceeding where a case is
resolved in one sitting.
2. Meant for petty offenses, to reduce the burden of court
S. 260 When a case involving the following offenses
comes to CJM, MM, and JMFC for hearing, they have the
discretionary power to decide whether they want to try
the case summarily or not. There are 9 such offences
any offence that does not have death, life imprisonment
or imprisonment of more than 2 yrs as punishment, theft,
lurking house trespass, receiving stolen property,
assisting in concealment of stolen property, abetment of
the offences covered under this section, attempt of these
offences.
If at any point in while trying the matter in this manner, if
the court thinks that it is undesirable to try the case
summarily, it shall recall any witnesses who may have
been examined and proceed to re-hear the case in the
manner provided in this code (i.e. as a summons trial or
warrant trial)
S. 261 High Court may give power to Judicial
Magistrate Second class to try offences involving
imprisonment of less than 6 months summarily.
S. 262 Sentence of imprisonment of more than 3
months cannot be passed in a summary trial and the

procedure adopted in a summary trial will be same as the

procedure adopted in a Summons case except the
following changes
S. 263 The judge must record the following particulars
in the prescribed format serial number of the case, date
of offence, date of complaint, name of complainant,
name, age, address, parentage of accused, offence
complained and offence proved, plea of the accused and
his examination, findings, sentence, and date of
termination of the proceeding.
S. 264 If the accused does not plead guilty, the judge
must record the substance of the evidence and give
reasons for the judgment.
S. 265 Every the such record and judgment shall be in
the language of the court.
In Ram Lochan vs State, 1978, it was held that
although trying a govt. servant summarily is legal, it
should not be done so because upon conviction, govt.
servant may lose his job, which is a serious loss.
Appeal and Revision in Summary Trials
No appeal lies if only a sentence of fine not exceeding
200/- is awarded. A revision application would lie to the
High Court in such a cas