Criminal Procedure Code (CrPC) Complete PDF

BNSS 08 June 2023 11:55 Q Criminal Procedure at a Glance POLICE CASE 1. Reporting of offense a. Non-cognizable offense: SHO cannot register an FIR or conduct investigation. He has to refer the informant to a Magistrate under Section 155 (1). If the Magistrate passes an order under Section 155 (2), the police officer can conduct investigation in view of Section 155 (3). b. Cognizable offense: If information is given by any person about a cognizable offense , SHO has to register an FIR u/s 154. The police can also register FIR u/s 157 when police itself discovers a cognizable offense. He can investigate such offense without any order from the Magistrate and arrest without any warrant. 2. Investigation Inquest Post mortem/ FSL/ Scene of offense Panchnama 161 statements 164 statements/confession Arrest 3. Remand 4. Bail 5. Search and seizure/interrogation 6. Chargesheet 7. Cognizance: If after applying his mind to the “Police Report” and the documents produced along with it, the Magistrate takes the case on file against all or any of the accused persons, for all or any of the offences made out against them, he can be said to have taken cognizance of the offence on a “Police Report” under Section 190 (1) (b) Cr.P.C. 8. Issue of Process. 9. Section 207 Compliance by the Magistrate. 10. Committal to Session's Court u/s 209 if Session's Trial case after 207 Compliance 11. Examination of Accused for Discharge, conviction or further trial In summons case: No discharge. In warrant trial: Discharge u/s 239 if the charge is groundless. In session Trial: Discharge after preliminary hearing u/s 227. 12. Framing of Charge In Summons trial: Substance of the accused is read over. No need to frame charge unless converted to warrant case u/s 259. Ask if pleads guilty. If yes, conviction u/s 252. In warrant case: Frame charge u/s 240 and ask guilty or not? If pleads guilty. Conviction u/s 241. In session trial: May frame charge and transfer to magistrate for trial u/s 228. May convict on pleading guilty u/s 229. 13. Prosecution Evidence In summons trial: u/s 254 In warrant trial: u/s 242 In sessions trial: u/s 230, 231 14. Section 313 Examination of the accused In Summons trial: Where the Court has dispensed with the personal attendance of the accused, it may also dispense with his examination. In warrant trial: No provision for dispensing with his examination. In Session Trial: Order of acquittal u/s 232 – if no offence shown after 313 examination and prosecution evidence. 15. Defence Evidence In Summons trial: u/s 254 In warrant trial: Defence Evidence u/s. 243 In Session Trial: If not acquitted u/s. 232 - Defence Evidence u/s. 233. 16. Final Arguments: Ordinarily it is the Public Prosecutor who has to commence the arguments unless there is a “reverse burden”. 17. Judgment Acquittal or conviction ○ In Summons trial: u/s 255 ○ In warrant trial: u/s 248 ○ In sessions trial: u/s 235 Hearing on Sentence ○ In Summons trial: No hearing on sentence. ○ In warrant trial: u/s 248(2) ○ In sessions trial: u/s 235(2) Compensation may be awarded u/s 250 if accusation without reasonable cause in both warrant and summons case. 18. Section 389(3): The convicting Court shall release if the convict satisfied the Court that he intends to present on appeal in the following 2 cases: The person is on bail and is sentenced to maximum 3 years imprisonment. The person is on bail and is convicted of a bailable offence. COMPLAINT CASE 1. Making of Complaint to the Magistrate: The Magistrate has 2 options - 1) Take cognizance and proceed under chapter 15. 2) Direct further investigation u/s 156(3) without taking cognizance. 2. Examination u/s 200: The magistrate shall examine the complainant and the witnesses on oath and reduce the substance of such examination in writing. All 3 will sign it. Dismissal of complaint: The Magistrate shall dismiss the complaint if no sufficient ground exists for proceeding. 3. Cognizance: If after perusing the averments in the complaint and after considering the statements on oath of the complainant and his witnesses, the Magistrate applies his mind for the purpose of proceeding under Chapter 15. starting with Section 200 onwards, the Magistrate can be said to have taken cognizance of the offence. 4. Section 204(3): Issue of process and supply of complaint. 5. Section 208 compliance of Session's triable case. 6. Committal of case u/s 209. 7. Prosecution Evidence (pre-trial evidence) In Summons trial: death or absence of complainant may result in acquittal. In warrant trial: Magistrate may discharge during the process of taking PE u/s 245(2). 8. Discharge In warrant trial: May discharge after taking PE u/s 245(1) or if absent u/s 249 9. Framing of Charge 10. Guilty or not 11. Prosecution evidence 12. 313 Examination 13. Defence Evidence 14. Final Arguments 15. Judgment Acquittal or conviction Hearing on Sentence Giving sentence Compensation 16. Section 389(3) MAGISTRATE'S OWN KNOWLEDGE 1. Magistrate may take cognizance of the offence: i. Upon information received from any person other than a police officer. (TV, social media etc.) ii. Own knowledge of the Magistrate (offence committed in presence of the Magistrate) 2. In both situations, the case should be transferred to another Magistrate u/s 191 after giving the accused an option to have the case tried by another Magistrate. Q1 Bailable and non bailable offense. Section 2(a) defines bailable offence and non-bailable offence: "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. "non-bailable offence" means any other offence. Difference between bailable and non-bailable offences. Bailable Non-bailable 1 Offence shown as bailable in the First Any other offence Schedule 2 Offence punishable with less than 3 years Offence punishable with 3 years or under any law other than IPC. more under any law other than IPC 3 Bail is matter of right and is granted under Bail is discretion of court and is section 436 granted under section 437. 4 E.g.: sec 304A, 323, 506 E.g.: 302, 304, 307 Q2 Cognizable and non-cognizable offense Section 2(c) "cognizable offence" and "Cognizable case An offence/case in which, a police officer may, in accordance with the First Schedule or under any other law for the time being in force, arrest without warrant. Section 155 (4): Where a case relates to two or more offences of which at least one is cognizable, the case shall be deemed to be a cognizable case, notwithstanding that the other offences are non-cognizable”. Section 2(l) "non-cognizable offence" "non-cognizable case" An offence/case in which, a police officer has no authority to arrest without warrant. Difference between Cognizable and non cognizable offences Cognizable offence [sec 2(c)] Non-cognizable offence [sec 2(l)] 1 Police has the power to arrest without Police do not have the power to arrest warrant without warrant. 2 Police has to register FIR. FIR is not registered. 3 Shown as cognizable in the First Shown as non-cognizable in first schedule schedule 4 Offence punishable with 3 years or Offence punishable with less than 3 more under any law other than IPC years under any law other than IPC 5 Police can investigate without the order Police cannot investigate without the of magistrate. order of magistrate. 6 Offense of private nature 7 Example: 302 IPC Example: 323 IPC Q3 Complaint and police report Section 2(d) "complaint" means: Any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report. Explanation.— A report made by a police officer in a case which discloses, after investigation, the commission of a non-cognizable offence shall be deemed to be a complaint; and the police officer by whom such report is made shall be deemed to be the complainant. ○ There is no particular format of a complaint. ○ A Protest petition, filed by the accused against final report of police, is not a "complaint". ○ It is not necessary that a complaint should contain in verbatim all the ingredients of the offence. Section 154: Information in cognizable cases (FIR) -- see below Difference between complaint case and police case Complaint [sec 2(d)] FIR (sec 154) 1 Always presented before a magistrate Information given to the officer in charge of a PS 2 May be for both cognizable and non-cognizable Only for cognizable offense. offense 3 Police can investigate only on the order of Police is empowered to Magistrate. investigate without the order of Magistrate. 4 Magistrate is not bound to furnish a copy of the Police is bound to furnish to complaint to the complainant free of cost. the informant, a copy of the FIR free of cost. Q4 inquiry, investigation and Trial Section 2(g) "inquiry" "Inquiry" means every inquiry, other than a trial, conducted by a Magistrate or Court. It is done for ascertaining or verifying facts with a view to take some action under the Code. Ambit of Inquiry is very wide. It includes proceedings under section 340, 144, 145, 176, 446, etc. of the CrPc. In criminal matters , all those proceedings before a Magistrate prior to the framing of a charge which do not result in conviction can be termed as inquiry. Inquiry stops when trial begins. Section 2(h) "investigation" Investigation includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorised by a Magistrate in this behalf. In Navin Chandra v Meghalaya (2000), the SC said investigation includes: 1. Proceeding to spot 2. Ascertainment of facts and circumstances of the case 3. Discovery and arrest of suspected offenders 4. Collection of evidence: i. Examination of witnesses ii. Search and seizure 5. Formation of opinion on whether case is fit for producing accused before the Magistrate. 6. Taking necessary steps for filing the chargesheet. Trial Trial is not defined in CrPc Trial is the third stage of a criminal proceedings. It commences after inquiry is completed. Trial pre-supposes the idea of an offense. But inquiry relates to matters, which are not offences. Object is to pass the final judgment, acquitting or convicting the accused. Difference between Investigation, inquiry and trial Investigation Inquiry Trial Includes all proceedings for Every inquiry other than a trial All proceedings after the collection of evidence taking cognizance till final judgment Not a judicial proceedings Judicial proceeding Judicial proceeding Object is to collect evidence Object is to find prima facie case, Object is to pass the final to commit the case to court of judgment, acquitting or session, to obtain personal bonds convicting the accused. etc. Conducted by police or any Conducted by either Magistrate or Conducted by either person authorised by Court Magistrate or Court Magistrate but not a magistrate. 1st stage of criminal 2nd stage 3rd stage proceeding Always relates to an offence May or may not relate to an Always relates to an offense. E.g.value of property in offense maintenance proceeding. Defined in 2(g) Defined in 2(h) Not defined Q5 Summons case and Warrant case 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. The procedure for the trial of warrant cases is provided in Chapter 19 (Section 238-250). Section 2(w) "summons-case" means a case relating to an offence, and not being a warrant case. The procedure for the trial of summons cases is provided in Chapter 20 (Section 251-259). Difference between Summons and warrant case Summons case Warrants case 1 All cases which are not warrants case. Offence punishable with death, life, or imprisonment exceeding 2 years. 2 Only a summons is issued. May issue a summons or warrant. 3 Trial procedure is not elaborate. Trial procedure is elaborate. 4 Trial of summons case as a warrant case Trial of warrant case as a summons is a curable irregularity under section case vitiates trial if prejudice is caused 465. to the accused. 5 Formal Charge need not be framed. A charge is framed. Substance of the accusation can be stated. 6 Accused is not heard before charge Accused is heard before charge to decide upon discharge. 7 Conviction can be recorded in absence Plea of guilt cannot be recorded in of accused in petty cases where accused absence of accused. pleads guilty without appearing. 8 Cross-examination of the witnesses Cross-examination may be deferred cannot be deferred. until any other witness has been examined. 9 Summons case may be converted into Warrants case cannot be converted warrants case under sec 259 into summons case 10 Accused may be either convicted or Accused may be convicted, acquitted acquitted. or discharged. 11 Complainant has a right to withdraw the Only the State has the right to withdraw complaint with permission of the court. prosecution in cases instituted on a police report. 12 Accused may be acquitted on the ground Accused may be discharged on the of absence of the complainant. ground of absence of the complainant. 13 Summons case cannot be revived again Warrants case may be revived again after conclusion. after discharge. 14 Hearing on sentence is not necessary Hearing on sentence is necessary after after conviction. conviction. 15 E.g.: sec 323 IPC E.g. sec 326 IPC Q6 judicial proceeding Section 2(i) "judicial proceeding" includes any proceeding in the course of which evidence is or may be legally taken on oath. It includes "inquiry" and "trial" but not investigation. Q7 Classes of Criminal Courts. Appointment, duties etc. Section 6 Classes of Criminal Courts.—There are six different classes of Courts: 1. High Courts and the Courts constituted under any law other than Cr.P.C.; 2. Courts of Session; 3. Judicial Magistrates of the first class; 4. Judicial Magistrates of the second class; 5. Metropolitan Magistrates; and 6. Executive Magistrates Court of Sessions (section 9-10) 1. Every sessions division has a Court of Sessions presided over by a Sessions Judge. 2. Appointed by the High Court. 3. Additional Sessions Judges and Assistant Sessions Judges may also be appointed to exercise jurisdiction in such Court. 4. A Sessions Judge of one sessions division may be appointed to be also an Additional Sessions Judge of another division. 5. If the Sessions Judge’s office is vacant, the High Court can arrange for an Additional or Assistant Sessions Judge, or if none are available, a Chief Judicial Magistrate, to handle urgent applications. 6. All Assistant Sessions Judges are subordinate to the Sessions Judge in whose Court they exercise jurisdiction, and who make rules for distribution of work among them. If the Sessions Judge is unavoidably absent or incapable of acting, he may make provision for the disposal of any urgent application by an Additional or Assistant Sessions Judge, or if there is none such, by the Chief Judicial Magistrate. (section 10). Judicial Magistrates (section 11-15) 1. In every district, there are Courts of Judicial Magistrates of the first and second class whose presiding officers are appointed by the High Court. The High Court can also confer first or second class magisterial powers on Judicial officers functioning as Judge in Civil Court. 2. In every district, the High Court appoints one JMFC as CJM and may appoint another or others as ACJM. 3. The CJM defines the local limits of the areas within which Judicial Magistrates may exercise powers. Otherwise, the jurisdiction and powers extend throughout the district. 4. Special Judicial Magistrates.—The High Court may, if requested by the Central or State Government, confer powers of the JMFC or JMSC on any duly qualified person for dealing with particular cases or classes of cases in any area outside the metropolitan towns. Such Magistrates are called Special Judicial Magistrates and are appointed for prescribed terms not exceeding one year at a time. 5. Subordination of Judicial Magistrates.—The CJM is subordinate to the Sessions Judge, and other Judicial Magistrates are subordinate to the CJM subject to the general control of the Sessions Judge. Rules for distribution of work among Judicial Magistrates are made by the CJM. Metropolitan Magistrates (section 16-19) 1. The State Government may establish a Metropolitan Magistrates’ Courts in each metropolitan area, the presiding officers of which are appointed by the High Court. 2. One of the Metropolitan Magistrates is appointed as the CMM by the High Court. It may appoint any Metropolitan Magistrate as an ACMM. 3. Duly qualified persons who have held posts under Government may be appointed as Special Metropolitan Magistrates with second class Judicial Magistrate’s powers by the High Court, on request from the Central or State Government, for a term not exceeding one year at a time for particular cases or classes of cases. 4. Subordination of Metropolitan Magistrates.—The CMM and the ACMM are subordinate to the Sessions Judge, and other MMs are subordinate to the CMM subject to the general control of the Sessions Judge. The extent of subordination of the ACMM to the CMM is defined by the High Court. The CMM distributes business amongst the MMs and ACMMs by making rules Executive Magistrates (section 20-23) 1. The State Government appoints in each district and in every metropolitan area Executive Magistrates one of whom is appointed as the District Magistrate. An Additional District Magistrate with all or any of the powers of the District Magistrate may also be appointed. 2. An Executive Magistrate may be put in charge of a sub-division or relieved of his charge by the State Government: he is called the Sub-divisional Magistrate. The State Government may delegate its powers to the District Magistrate for the purposes of placing the Executive Magistrates in charge of a sub-division. 3. The State Government may confer on a Commissioner of Police in metropolitan area any power of the Executive Magistrate. 4. The State Government can also appoint for a term Special Executive Magistrates with powers of Executive Magistrate for particular areas or for discharging particular functions. 5. The jurisdiction of Executive Magistrates extends throughout the district, unless the District Magistrate defines the local limits of such jurisdiction. 6. Subordination of Executive Magistrates.—All Executive Magistrates are subordinate to the District Magistrate, and all Executive Magistrates in a sub-division are subordinate to the Sub-divisional Magistrate subject to the general control of the District Magistrate. The District Magistrate makes rules for distribution of business Q8 Territorial Divisions and Metropolitan Areas Territorial divisions: (section 7) 1. Every State is a sessions division or consists of sessions divisions. 2. Every sessions division is a district or consists of districts. 3. Every metropolitan area is a sessions division and is a district. 4. The State Government may, after consultation with the High Court, alter the limits or the number of such divisions and districts and also divide any district into sub-divisions or alter the limits of any sub-divisions. Metropolitan Area: (section 8) 1. The State Government can declare a town or city with a population exceeding one million to be a metropolitan area. 2. The State Government may extend, reduce or alter the limits of a metropolitan area but the reduction or alteration shall not be so made as to reduce the population of such area to less than one million. Q9 Who is a Public Prosecutor? Who appoints him? Can a Police Officer be appointed as Assistant PP? withdrawal of a criminal case? Section 2(u): Public Prosecutor means any person appointed under section 24, and includes any person acting under the directions of a Public Prosecutor. Section 24: Public Prosecutors 1. For each High Court, an advocate of not less than seven years standing shall be appointed as PP Prosecutor either by the State Government or by the Central Government after consultation with HC. ○ For conducting in such Court, any prosecution, appeal or other proceeding on behalf of the Central Government or State Government, as the case may be. 2. A Public Prosecutor and one or more Additional Public Prosecutors with not less than seven years practice for each district shall be appointed by the State Government from a panel of names prepared by the District Magistrate in consultation with the Sessions Judge. 3. Central Government may appoint one or more PP for any district or local area. 4. A Special Public Prosecutor may also be appointed by the Government for any particular case or class of cases. Such person should be in practice for not less than ten years. Section 25: Assistant Public Prosecutors 1. The State Government shall and Central Government may appoint Assistant Public Prosecutors for conducting prosecutions in Courts of Magistrates. 2. Where no Assistant Public Prosecutor is available for any case, the District Magistrate may appoint any other person to be the Assistant Public Prosecutor. 3. Provided that a police officer shall not be appointed as Assistant Public Prosecutor : i. who is either below the rank of an Inspector or ii. who has taken part in the investigation of the case Section 25A: Directorate of Prosecution 1. The State Government may establish a Directorate of Prosecution consisting of a Director of Prosecution and as many Deputy Directors as it thinks fit. 2. The Director of Prosecution shall function under the administrative control of the Head of the Home Department in the State. 3. A person shall be eligible to be appointed as a Director of Prosecution or a Deputy Director of Prosecution, only if he has been in practice as an advocate for not less than ten years and such appointment shall be made with the concurrence of the Chief Justice of the High Court. 4. Every Deputy Director of Prosecution shall be subordinate to the Director of Prosecution. 5. All PPs, APPs, SPPs etc are subordinate to Deputy DP and DP. Section 321: Withdrawal from prosecution 1. Any Public Prosecutor or Assistant Public Prosecutor may, with the consent of the Court, before the judgment is pronounced, withdraw from the prosecution of any person either generally or in respect of any offence, and upon such withdrawal— i. if it is made before a charge has been framed, the accused is discharged. ii. if it is made after a charge has been framed, or when no charge is required, he is acquitted. 2. Prior consent of the Central Government is necessary for withdrawal by a Public Prosecutor (not being a Prosecutor appointed by the Central Government) in the following offences: 1) against any law relating to a matter to which the executive power of the Union extends. 2) investigated by the Delhi Special Police Establishment, 3) involving misappropriation, destruction of or damage to Central Government property or 4) committed by Central Government servant acting or purporting to act in the discharge of his official duty. Abdul Karim v. State of Karnataka (2000) 1. PP has to apply his mind independently even if he has been ordered by the Government to withdraw prosecution. 2. Application under Section 321 must aver that the Public Prosecutor is, in good faith, satisfied, on consideration of all relevant material, that his withdrawal from the prosecution is in the public interest and it will not stifle or thwart the process of law or cause injustice. 3. The court has to be satisfied that the Public Prosecutor has applied his mind independently and acting in good faith. 4. He must set out the material that he considered in brief. Q10 Jurisdiction of Criminal Courts Section 177 states that every offence shall ordinarily be inquired into and tried by a Court within whose local jurisdiction it was committed. Exceptions to the general rule: 1. It may be tried by a Court having jurisdiction over any of the local areas : i. When it is uncertain in which of several local areas an offence was committed, or ii. Where an offence is committed partly in one local area and partly in another iii. Where an offence is a continuing one, and continues to be committed in more local areas than one, or iv. Where it consists of several acts done in different local areas 2. An offence is triable by a Court within whose jurisdiction (1) any act is done, or (2) any consequence of such act has ensued, ○ Ex: Where the conspiracy to cheat a bank was hatched at Chandigarh, the court at that place had jurisdiction, though everything else was done elsewhere 3. When an act is an offence by reason of its relation to any other act which is also an offence or which would be an offence if the doer were capable of committing an offence, it may be tried by a Court within whose local jurisdiction either act was done. 4. The offence of i. being a thug or murder committed by a thug, or ii. of dacoity or murder with dacoity or belonging to a gang of dacoits, or iii. escape from custody may be tried by a Court within whose jurisdiction the offence was committed or the accused is. 5. Kidnapping or abduction may be tried by a Court within whose jurisdiction the person was i. kidnapped or abducted, or ii. conveyed, concealed or detained 6. Theft, extortion or robbery may be tried by a Court within whose jurisdiction i. the offence was committed, or ii. the property stolen was possessed a. by the thief or b. by any person who received or retained the same knowing it to be stolen 7. Criminal misappropriation or criminal breach of trust may be tried—by a Court within whose jurisdiction i. The offence was committed, or ii. any part of the property was received or retained, or iii. the property was to be returned or accounted for 8. An offence which includes possession of stolen property may be tried by i. the Court within whose local jurisdiction the offence was committed, or ii. the stolen property was possessed knowing or believing it to be stolen 9. If the offence includes cheating and the deception is practised by letters or telecommunication messages, it may be tried by the Court within whose local jurisdiction i. the letters or messages were sent or ii. were received 10. Cheating and dishonestly inducing delivery of property—by Court within whose local jurisdiction the property was i. delivered by the person deceived or ii. received by the accused 11. The offence u/ss. 494 and 495 (of bigamy) by the Court i. within whose local jurisdiction the offence was committed, ii. the offender last resided with his or her spouse by first marriage or iii. the wife by the first marriage has taken up permanent residence after the commission of the offence 12. An offence committed in the course of a journey or voyage may be inquired into or tried by a Court through or into whose local jurisdiction i. the offender, or ii. the person against whom or the thing in respect of which the offence was committed, passed in the course of that journey or voyage 13. If offences committed are such as can be tried at one trial u/s. 219, 220 or 221, or if offences committed by several persons are such as they can be tried together (s. 223), then trial can be held by any Court competent to try any of the offences. Doubt as to Jurisdiction (section 186) Where two or more Courts have taken cognizance of the same offence and a question arises as to which of them ought to inquire into or try that offence, the question shall be decided: 1. by the High Court to which they are subordinate 2. where the courts are subordinate to different High Courts - by the High Court within whose appellate criminal jurisdiction the proceedings were first commenced. Section 462 Proceedings in wrong Court.—Proceedings of a Criminal Court are not set aside merely on the ground that they took place in a wrong place, (i.e., Sessions division, district or other local area) unless such error has occasioned a failure of justice. Q11 which courts try Juveniles? Section 27: Jurisdiction in the case of juveniles A person under the age of sixteen years who has committed an offence not punishable with death or imprisonment for life may be tried by : 1. a Court of Chief Judicial Magistrate, or 2. by any Court specially empowered under the Children Act [Now the Juvenile Justice Care and Protection of Children Act, 2015) or 3. any other law providing for the treatment, training and rehabilitation of such offender. Q12 Sentencing limits Section 28 and 29 states that the following sentences can be passed by the Criminal Courts: Court Sentence High Court Any Sentence authorised by law. Sessions Judge or Any sentence authorised by law. But sentence of death shall Additional Sessions Judge be subject to confirmation by the High Court. Assistant Sessions Judge Imprisonment upto 10 years or/and fine. CJM / CMM Imprisonment upto 7 years or/and fine. JMFC Imprisonment upto 3 years or/and fine upto 10,000. JMSC Imprisonment upto 1 years or/and fine upto 5,000. Q13 sentencing in default of fine limit? Section 65 IPC: Imprisonment in default of fine shall not exceed 1/4th of the maximum imprisonment fixed for the offense. Section 30 Sentence of imprisonment in default of fine A Magistrate may award such term of imprisonment in default of payment of fine as is authorised by law. Such imprisonment may be in addition to a substantive sentence of imprisonment for the maximum term awardable by the Magistrate u/s. 29. However, it should not exceed— 1. Limit of Magistrate's sentencing power u/s 29. (in offenses punishable with fines only) 2. Where imprisonment has been awarded as part of the substantive sentence, 1/4th of maximum punishment which the Magistrate is competent to inflict for the substantive offence. Chhajulal v State of Rajasthan: JMFC imposed default imprisonment of 1 year. The Supreme Court held that JMFC can impose default sentence for only 9 months because the maximum sentencing limit of JMFC is limited to 3 years by the CrPc. Q14 Sentence in cases of conviction of several offences at one trial. Section 31: Sentence in cases of conviction of several offences at one trial 1. In such a case, the Court may, subject to the provisions of s. 71 of the IPC, sentence the offender to the several punishments prescribed therefore which it is competent to inflict. 2. Ordinarily, the several imprisonments will run consecutively in such order as the Court may direct, unless the Court directs that such punishments shall run concurrently. 3. Where the sentences are consecutive, it is not necessary to send the offender before a higher Court merely because the aggregate punishment is in excess of that which the Court is competent to inflict on conviction of a single offence. 4. Provided that: 1. the offender shall not be sentenced to imprisonment for more than fourteen years; 2. the aggregate punishment shall not exceed twice the amount of punishment which a Magistrate is competent to inflict for a single offence. 5. For the purpose of appeal, the aggregate of consecutive sentences is deemed to be a single sentence. CHAPTER IV (36-40) Q15 can a Dy. IGP exercise power of SHO? Section 36: Powers of superior officers of police.— Police officers superior in rank to an SHO may exercise the same powers, throughout the local area to which they are appointed, as may be exercised by such officer within the limits of his station. Q16 Under what circumstances the public is bound to aid and assist the Magistrate and the police? Information under section 39. Section 37. Public when to assist Magistrates and police..—Every person is bound to assist a Magistrate or police officer demanding his aid— 1. in the taking or preventing the escape of any person whom the Magistrate or police officer is authorised to arrest; 2. in the prevention or suppression of a breach of the peace; 3. in the prevention of any injury attempted to be committed to any (a) railway, (b) canal, (c) telegraph or (d) public property. Section 38 Aid to a person executing a warrant.—When a person other than a police officer is executing a warrant, any person may aid in its execution. Section 39 Information of certain offences: Every person aware of the commission or intention to commit the following offences, under the IPC, is bound, in the absence of any reasonable excuse, to give information to the nearest Magistrate or police officer:— 1. Certain offences against the State (ss. 121-126 and s. 130). 2. Unlawful assembly and rioting (ss. 143, 144, 145, 147 and 148). 3. Offences relating to illegal gratification (ss. 161 to 165A). 4. Offences relating to adulteration of food and drugs (ss. 272 to 278). 5. Murder (ss. 302 and 303) and culpable homicide (s. 304). 6. Theft with preparation to cause death or hurt (s. 382). 7. Robbery and its aggravated forms and dacoity (ss. 392 to 399 ands. 402). 8. Criminal breach of trust by public servant (s. 409). 9. Mischief against property (ss. 431 to 439). 10. House-trespass to commit offence punishable with death (s. 449) or imprisonment for life (s. 450). 11. Lurking house-trespass or house-breaking by night and its aggravated forms (ss. 456 to 460). 12. Offence relating to currency notes and banknotes (ss. 489A to 489E) Q17 FIR. Object. Mandatory or not. Refusal Remedies. Complaint v FIR etc. An FIR is the "information" given to the officer-in-charge of a Police station (Station House Officer – "SHO" for short) regarding the commission of a cognizable offence irrespective of the area and recorded by the SHO under Section 154 Cr.P.C. (Section 173 BNSS). Object : ○ From the point of view of the first informant - to set the criminal law in motion and ○ From the point of view of the SHO - to obtain prompt information about the alleged criminal activity before there is time to be forgotten or embellished. Section 154/173: Information in cognizable cases ○ Information should be about commission of cognizable offense irrespective of the area. ○ Information should be given to the officer in charge of a police station. (SHO) ○ Information by a woman regarding sexual offences shall be recorded by a woman police officer. ○ It may be given orally, written or by electronic communication ○ If given orally, shall be reduced to writing. ○ It shall be signed by the informant. ○ It should be verbatim, and in the same language as the informant. ○ Information should be read-over to the informant. ○ If given by electronic communication, it shall be taken on record on being signed within three days by the person giving it. ○ Substance of the information should be written down in the Station Diary (General Diary). ○ Copy of the FIR should be given to the informant or the victim. ○ Locus standi of the complainant is irrelevant. Any citizen can lodge an FIR or file a complaint and set the criminal law in motion. Preliminary Enquiry [S. 173(3)]: In case of information about cognizable offense punishable for 3 years or more but less than 7 years, the SHO may with the prior permission from an officer not below the rank of DSP, considering the nature and gravity of the offence,— i. proceed to conduct preliminary enquiry to ascertain whether there exists a prima facie case for proceeding in the matter within a period of fourteen days; or ii. proceed with investigation when there exists a prima facie case. Information should be recorded immediately. The police cannot go to the scene of offence and record statements of people there as FIR because that is not ‘first’ information anymore. Gorle v State of Andhra Pradesh: FIR is not an encylopaedia of the facts concerning the crime. But, it must contain some definite information vis-a-vis the crime. Telephonic message as FIR: i. Telephonic message received by an SHO from an ascertained person disclosing a cognizable offense which is not cryptic or incomplete can be an FIR. (Soma Bhai vs State Of Gujarat) ii. It will not be an FIR if the message is anonymous and does not disclose the name of the accused or commission of a cognizable offense. (Tapinder Singh v State) FIR Registration is Mandatory ○ Lalita Kumari v Government of UP (2014) (5 JB) 1. FIR registration is mandatory u/s 154 if information discloses commission of cognizable offence. No preliminary enquiry is permissible. 2. If information does not disclose cognizable offense, preliminary enquiry can be done only to ascertain whether cognizable offence is disclosed or not. 3. If cognizable offense is disclosed after preliminary enquiry, FIR must be registered. 4. If preliminary inquiry leads to closing of complaint, copy of the closure entry (in GD) should be given to the informant not later than 1 week. Reasons for closing should be there in the entry. 5. Action must be taken against officers who do not register FIR for cognizable offences. 6. Preliminary enquiry should be completed within 7 days (later extended to 15 days). Reason for delay in GD. 7. Cases where preliminary inquiry can be allowed a. Matrimonial/family disputes b. Commercial offences c. Medical negligence d. Corruption e. Abnormal delay in reporting. E.g. 3 months delay in reporting without satisfactory explanation. 8. Above cases are only illustrative and not exhaustive. Delay in lodging FIR: Delay in lodging FIR should be satisfactorily explained. ○ Ramdas v. State of Maharashtra (2007): The delay in lodging the FIR raises questions of fabrication of information. This should be explained by the prosecution. However, it is not a decisive factor. In a rape case, delay due to family honour is a valid ground. Evidentiary value of FIR ○ Harendra Rai v State of Bihar 2023: FIR is a public document u/s 74 of IEA. Certified copy can by obtained from the police. FIR can be treated as dying declaration u/s 32 of IEA. Omission of an important fact is relevant u/s 11 of IEA. Aghnoo Nagesia v State of Bihar: i. Not substantive evidence. It may be used to corroborate the informant under s. 157 of the Evidence Act or to contradict him under s. 145 of the Act, if the informant is called as a witness. ii. Confessional FIR would be hit by section 25 of IEA. However, if FIR is non- confessional, it can be proved as admission u/s 21 of IEA. iii. Confessional FIR may be relevant as 'conduct' u/s 8 of IEA. iv. FIR may be relevant u/s 32 of IEA as dying declaration if the maker dies soon after. Ramdas v. State of Maharashtra (2007) Absence of name of accused in FIR i. If the informant has not mentioned the name of the accused in FIR, this aspect in itself cannot be sufficient to discard the prosecution's case. ii. The informant might not know the accused and there might be other clinching evidence which proves the guilt of accused beyond reasonable doubt. Remedies on refusal of FIR [S. 154(3)] / [S. 173(4)] i. Any person aggrieved by a refusal of Registration of FIR by the SHO, may send the substance of such information, in writing and by post, to the SP concerned who, if satisfied that such information discloses the commission of a cognizable offence, shall either investigate the case himself or direct an investigation to be made by any police officer subordinate to him. ii. Failing which such aggrieved person may make an application to the Magistrate. Section 175(3): Any Magistrate empowered under section 210 may, 1. after considering the application supported by an affidavit made u/s 173(4), and 2. after making such inquiry as he thinks necessary and 3. submission made in this regard by the police officer, Order the investigation by the Police. Sakiri Vasu v State of UP (2008): If a person is aggrieved by the police for not registering FIR: 1. He may approach the SP u/s 154(3) or any other superior officer than SHO u/s 36 2. If still not satisfied, he may file an application u/s 156(3) before the Magistrate concerned. The magistrate can then order registration of FIR and proper investigation. 3. He may also file a complaint u/s 200. 4. When alternative remedies under Sections 154 (3) read with 36, 156 (3) or 200 Cr.P.C. are available to the aggrieved person, High Courts should discourage writ petitions and petitions under Section 482 Cr.P.C. Priyanka Shrivastava v State of UP (2015): 1. Aggrieved cannot directly file private complaint without exhausting alternative remedies first. He should first write to SP u/s 154(3) before making private complaint to magistrate. 2. 190(1)(a) or 156(3) applications has to be supported with affidavit that alternative remedies have been exhausted. i.e. 154(1) & 154(3). Complaint vs FIR: See above Q18 Complaint procedure by magistrate. Name complaint offences. Complaint when investigation already going on. Is a second complaint on same facts maintainable after dismissal u/s 203. Section 2(d) / (h): see above Section 190: A magistrate may take cognizance of an offence: a. Upon receiving a complaint b. Upon a police report (challan) under Section 173 c. Upon receiving information from: 1. any person other than a police officer or 2. own knowledge Section 200-204 lays down the procedure to be adopted by a Magistrate on receiving a complaint. Section 200 / 223: Examination of complainant. A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any. 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. Such examination is not necessary— a. When a complaint in writing is made by a Court or a public servant in the discharge of his official duties; b. when the Magistrate makes over the case for inquiry or trial to another Magistrate under section 192. Provided that no cognizance of an offence shall be taken by the Magistrate without giving the accused an opportunity of being heard. In Tula Ram v Kishore Singh (1977), it was held that there are two options for magistrate when a complaint has been filed: i. Take cognizance and examine the complainant and proceed under chapter XV: a. Comply with section 200 and straightaway issue process u/s 204 b. Postpone issue of process and direct enquiry or investigation u/s 202. ii. Direct further investigation u/s 156(3) without taking cognizance: a. Either discharge the accused after final report b. Issue process after final report Section 201: Procedure by Magistrate not competent to take cognizance of the case if Magistrate is not competent to take cognizance then he shall: 1. If complaint is in writing - return it for presentation to the proper court 2. If not in writing - direct the complainant to the proper court. Section 202: Postponement of issue of process. 1. A Magistrate: i. May postpone the issue of process if he thinks fit and ii. Shall postpone the issue of process where the accused is residing at a place beyond the area in which he exercises his jurisdiction 2. And either i. inquire into the case himself or ii. direct an investigation to be made by a police officer or by such other person as he thinks fit, for ascertaining whether there is ground for proceeding. 3. Provided that no such direction for investigation shall be made: i. Where the Offence is exclusively triable by Sessions Court, (only inquiry can be made), or ii. Before the complainant and witnesses has been examined u/s. 200. (except where the complaint has been made by a Court.) 4. The Magistrate inquiring into a case: i. may take evidence of witnesses on oath ii. but where the offence is triable by the Court of Session, he shall call upon the complainant to produce all his witnesses and examines them on oath. The object of Section 202 is to enable the Magistrate to form an opinion as to whether the process should be issued or not. The investigation or inquiry need not be thorough and exhaustive. Section 203: Dismissal of complaint: The Magistrate shall dismiss the complaint if no sufficient ground exists for proceeding after considering : 1. the statements on oath of the complainant and witnesses and 2. the result of the inquiry or investigation under section 202. Pramatha Nath Talukdar v. Saroj Ranjan Sarkar (1962 SC): An order of dismissal under S. 203 is no bar to the entertainment of a second complaint on the same facts. But it will be entertained only in exceptional circumstances, i.e., : i. where the previous order was passed on an incomplete record or ii. on a misunderstanding of the nature of the complaint or iii. It was manifestly absurd, unjust or foolish or iv. where new facts which could not, with reasonable diligence, have been brought on the record in the previous proceedings have been adduced. Section 204: Issue of process 1. If there is sufficient ground for proceeding, the Magistrate shall : i. in a summons case, issue a summons for the attendance of the accused; or ii. in a warrant case issues a warrant or summons as he thinks fit for causing the accused to be brought before him or before some other Magistrate having jurisdiction. 2. No summons or warrant is issued unless a list of prosecution witnesses has been filed. 3. In a complaint case, a copy of complaint should accompany summons or warrant. 4. Process will be issued only on payment of process fees leviable. If such fees are not paid within a reasonable time, the Magistrate may dismiss the complaint. Procedure after Issue of Process 1. In case of warrant case instituted upon a complaint: ○ Pre-charge evidence of prosecution will be recorded and court may discharge the accused if no grounds appear after recording the evidence. ○ However, if there are sufficient grounds then magistrate will frame charges. 2. In summons case, the same procedure will be applicable as a case instituted upon a police report. Section 210: Procedure to be followed when there is a complaint case and police investigation in respect of the same offence 1. If during the trial or inquiry in a complaint case, there is also an investigation in progress by the police, the Magistrate shall stay the inquiry or trial before him and call for a report from the police. 2. If on the report made u/s. 173, cognizance of an offence is taken by the Magistrate, then both the cases, i.e., the complaint case and the case arising out of the police report, are heard together as if both of them were instituted on police report. 3. If the police report does not relate to the accused or, if the Magistrate does not take cognizance on police report, the Magistrate proceeds with the original inquiry or trial which was stayed by him. CHAPTER V ARREST OF PERSONS (41-60A) Q19 When police can arrest without warrant. State of Haryana v Dinesh Kumar 2008: Arrest is the restraint or deprivation of one's personal liberty. Object of Arrest 1. Prevents further crime 2. Ensures presence of accused at trial 3. Helps police with investigation 4. Safe custody of person Section 41: When police may arrest without warrant Police can arrest without warrant in the following cases: a. Commission of cognizable offense in his presence. b. Reasonable complaint or Credible information or reasonable suspicion of cognizable offence of 7 years or less and if: i. Police has reason to believe he has committed the offence and ii. Arrest is necessary to: a. To prevent further offense, or b. Prevent disappearance or tampering of evidence, or c. To prevent inducement, threat or promise to witnesses, or d. To ensure presence in court (Reasons for arresting or not arresting has to be written.) ba. Credible information - cognizable offence - More than 7 years. No reasons for arrest necessary. c. Proclaimed offender. d. Possession of Suspected stolen property and who committed an offense in reference to that thing. e. Obstructing police officer's duty or escaping from lawful custody. f. Deserter of Army. g. Committed offence outside India. h. Released convict breached section 356(5) (notification of residence of habitual offender). i. Requisition from another police officer. Other cases where police can arrest without warrant 1. Failure to disclose name and residence when non-cog offense committed in presence of Police. (section 42) 2. Any person designing to commit a cognizable offence which cannot be otherwise prevented. (section 151) 3. Any person whose suspension or remission of sentence has been cancelled by the State Government owing to his failure to fulfil any condition. [section 432(3)] Section 35(7): No arrest shall be made without prior permission of an officer not below the rank of Deputy Superintendent of Police in case of an offence which is punishable for imprisonment of less than three years and such person is infirm or is above sixty years of age. Section 41A: Notice of appearance before police officer Inserted by 2009 amendment but implemented properly after Arnesh Kumar judgement in 2014. 41A notice is issued when arrest is not required u/s 41(1) i.e. 7 years or less. Issued to direct appearance: ○ Before the police or ○ Any other place in the notice It shall be duty of the person to comply. Complying person shall not be arrested. Unless reasons are recorded. Arnesh Kumar v State of Bihar 2014 Guidelines: 1. Police should not arrest unnecessarily. 2. Magistrates should not authorise detention mechanically. 3. 41(1)(b)(ii) checklist provided to police. 4. Checklist will be filled by the police and sent to Magistrate while producing the person before the Magistrate. 5. Magistrate will peruse the report and authorise detention only when he is satisfied of the reasons. 6. Within 2 weeks, decision of not arresting shall be forwarded to the Magistrate. 7. 41A notice served upon accused within 2 weeks of complaint. 8. Failure to comply: contempt of court proceedings in HC of that jurisdiction. 9. Magistrate will face departmental action if authorises detention without recording reasons. 41A notice has to be given only in cognizable cases of 7 years or less. Not applicable when punishment is above 7 years. Police can however arrest without giving 41A notice provided that reasons are recorded by the police. Q20 Procedure for arrest Section 46: Arrest How made The police officer or person making the arrest touches or confines the body of the person to be arrested, unless he submits to the custody by word or action. If he forcibly resists or attempts to evade the arrest, force may be used to effect the arrest. But he cannot be killed if he is not accused of an offence punishable with death or imprisonment for life. Where a women is to be arrested: i. Her submission to custody on an oral intimation of arrest shall be presumed. ii. The police officer shall not touch the person of the woman unless the police officer is a female. iii. Except in exceptional circumstances, a woman shall not be arrested after sunset or before sunrise. In such exceptional circumstances, the woman police officer is required to obtain the prior permission of the JMFC. Section 48. Pursuit of offenders into other jurisdictions: A police officer may for arresting without warrant any person pursue him into any place in India. Section 49. No unnecessary restraint: The person arrested shall not be subjected to more restraint than is necessary to prevent his escape. Section 41B: Procedure of arrest and duties of officer making arrest: Inspired by DK Basu v State of WB 1997. Arrest guidelines were issued in that case: 1. Police to bear clear and correct identification. They should not be in civilian clothes. 2. Memo of arrest signed by: i. arrestee and ii. one witness ( who is a family member or neighbour) 3. Inform the arrested person that he has a right to inform his family member or any other person about his arrest if memorandum is not attested by a member of his family. Section 50A: Obligation of person making arrest to inform about the arrest, etc., to a nominated person 1. Nominated friend/relative to be informed of arrest and venue of custody. Arrestee must be informed about this right as soon as he is brought to the police station. 2. Entry in Station Diary about who has been informed. 3. Duty of Magistrate to check compliance of the above 2 requirements when brought before him. Search (section 47, 51 & 52) Section 47. Search of place entered by person sought to be arrested. 1. If he has entered into, or is within, any place, the person in charge of the place must allow free ingress and afford all facilities for a search. 2. If such ingress cannot be obtained, then any outer or inner door or window of any house or place may be broken open. 3. But if such place is an apartment in the occupancy of a female (not being the person to be arrested) who does not appear in public, notice to withdraw is given before breaking it open and entering it. 4. The police officer or other person authorised to arrest may break open any outer or inner door or window of any place in order to liberate himself. Section 51 Search of arrested person: 1. Where he is not admitted to bail or cannot provide bail, he may be searched and all articles other than necessary wearing-apparel found upon him may be placed in safe custody. 2. He should be given a receipt of articles seized from him. 3. In the case of a woman, the search is made by another woman. Section 52 Power to seize offensive weapons: Any weapons about the person of the arrested person may be seized and shall be delivered to the Court or officer before which or whom he is produced. Medical examination on arrest. (section 53, 53A and 54) Where the examination of an arrested person becomes necessary for evidence as to the commission of an offence, a registered medical practitioner may examine him acting on request of a police officer not below the rank of Sub-Inspector. In case of females, such examination should be done by a lady registered practitioner or under her supervision (s. 53). A detailed medical examination of a person accused of an offence of rape or an attempt to commit rape is required to be made by a registered medical practitioner employed in a hospital run by the Government or by a local authority and in the absence of such a practitioner, by any RMP within the radius of sixteen kilometer’s from the place of offence. (s. 53A). Section 54:Examination of arrested person by medical officer 1. There shall be medical examination of the arrestee soon after the arrest by : i. a medical officer in the service of Central or State Government, and in case the medical officer is not available, ii. by a registered medical practitioner 2. If the arrested person is a female, examination must be done by a female medical officer or female RMP. 3. Medical record must be prepared mentioning any injuries or marks of violence upon the person arrested, and the approximate time when such injuries or marks may have been inflicted. 4. Medical examination report must be given to the arrested person or his nominated person. Section 54A. Identification of person arrested 1. When it is necessary for the purpose of the investigation that the person arrested be identified, then the court having jurisdiction may, on the request of the SHO, direct the person so arrested to subject himself to identification by any person or persons. 2. Where the person identifying the person arrested is mentally or physically disabled, such identification shall be under the supervision of a Judicial Magistrate and in a manner as that person is comfortable with. Such an identification process shall be video graphed. Section 57: The arrested person has to be produced before the Magistrate within 24 hours of his arrest. Section 59: No person arrested by a police officer is discharged except on his own bond, or on bail, or under the special order of a Magistrate. Section 60: If a person in lawful custody escapes or is rescued, the person from whose custody he escaped or was rescued may immediately pursue and arrest him in any place in India. Section 60A. Arrest to be made strictly according to the Code Q21 Rights of Arrested person 1. Section 41D: He shall be entitled to meet an advocate of his choice during interrogation, though not throughout interrogation. 2. Section 49: No unnecessary restraint during arrest. 3. Section 50: He should be informed of the grounds for his arrest and also, in case of bailable offence, of his right to bail. 4. Section 50A : see above 5. Section 54 : see above 6. Section 55A :It is the duty of the person having the custody of an accused to take reasonable care of the health and safety of the accused. 7. Section 57 r/w art 22(1): see above 8. Section 358: Compensation to persons groundlessly arrested upto Rs. 1,000 9. Free legal aid 10. Art 20(3): Right against self incrimination 11. No custodial torture Sheela Barse v State of Maharashtra (1983): Female suspects should not be kept in a police lock up in which male suspects are detained. Interrogation of female suspects should be carried out only in the presence of female police officers/constables. ILLEGAL ARRESTS Emperor v VD Savarkar (1920): Violating the rights of arrested person will amount to procedural irregularity. It will not vitiate the trial. Anant Prasad Ray v Emperor (1926): Police officer may be prosecuted for confining wrongfully under Section 220 IPC. Any private person may be prosecuted u/s 342 IPC for illegal arrest. Q22 Arrest by Private Person Section 43: Arrest by private person and procedure on such arrest: A private person may arrest or cause to be arrested— 1. A person committing a non-bailable and cognizable offence in his presence, or 2. Any proclaimed offender. He must without delay make over such person to a police officer or to the nearest police station. Q23 Arrest by Magistrate Section 44. Arrest by Magistrate: A Magistrate, whether Executive or Judicial, may arrest within the local limits of his jurisdiction— 1. Any person who commits an offence in his presence. 2. Any person for whose arrest he is competent to issue a warrant. Q24 Arrest of members of armed forces Section 45: No member of the Armed Forces of the Union shall be arrested for anything done or purported to be done by him in the discharge of his official duties except after obtaining the consent of the Central Government. Q25 Section 156(3). Monitoring Investigation. Section 156 vs 202(1) Section 156(3): 1. Any Magistrate empowered u/s 190 can order an SHO to investigate any cognizable offense. 2. When a complaint is filed before a Magistrate, the Magistrate instead of taking cognizance of the offense may simply order investigation by the police under section 156(3). 3. Power under section 156(3) can be exercised even after submission of report by the investigation officer. Magistrate is not bound to accept the conclusion of the investigating officer and may direct further investigation. Madhu Bala v. Suresh Kumar (1997): When an order for investigation under Section 156(3) is made, the proper direction to the police would be “to register a case at the police station treating the complaint as the FIR and investigate into the same. Sakiri Vasu v State of UP (2008): Magistrate can monitor the investigation to ensure a proper investigation u/s 156(3). Manohar Lal Sharma v. Principal Secretary (2014): The investigation / inquiry monitored by the court does not mean that the court supervises such investigation / inquiry. To supervise would mean to observe and direct the execution of a task whereas to monitor would only mean to maintain surveillance. The concern and interest of the court in such 'court directed' or 'court monitored' cases is that there is no undue delay in the investigation, and the investigation is conducted in a free and fair manner with no external interference. Vinubhai Haribhai Malaviya and Others v. State of Gujarat and Another, (2019) ○ Magistrate's power to order further investigation u/s 156(3) can be exercised at both pre as well as post cognizance stages. ○ Magistrate has the power to order further investigation u/s 173(8) also. Thus, magistrate's direction to further investigate u/s 156(3) would include proceedings u/s 173(8). Difference between Section 156(3) and 202. 1. Investigation under Section 156(3) ends up with filing of police report under section 173(2). However, investigation under section 202 ends up in mere report which is not a police report under section 173(2). 2. The purpose of section 202 investigation is to aid the magistrate to decide whether there is sufficient ground for proceedings and is not controlled by the interdicts under section 162. 3. Hence, the Police Officer conducting investigation under Section 202 (1) Cr.P.C. is not prohibited from taking signed statements from persons. Also, during the trial, such signed statements can be used not only for contradiction but also for corroboration. Q26 Difference in investigation procedure in cognizable and non cognizable cases Investigation in Cognizable cases 1. Existence of Reasonable suspicion of commission of cognizable offense (by virtue of FIR or other information) 2. Any SHO may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try. [section 156(1)] 3. Police officer immediately sends report of the circumstances creating the suspicion to the Magistrate having jurisdiction. [section 157(1)] 4. Police officer proceeds to the spot to take measures for the discovery and arrest of the offender. [section 157(1)] 5. Police officer may not proceed to the spot to investigate the case in the following scenarios:  Case is not of a serious nature and information has been given against a person by name.  No sufficient ground for entering on an investigation. Informant has to be notified by the police officer that he will not investigate. 6. Magistrate may direct an investigation or himself proceed or depute a Magistrate subordinate to him when police are neglecting their duties or are desisting from investigation on insufficient grounds. (section 159). 7. Investigating police officer may require the attendance of witnesses and record their statements. (section 160-161) 8. Judicial Magistrate may record statement of witnesses or confession of the accused. (section 164) 9. Day to day proceedings have to be recorded by the police officer in police diary. (section 172) 10. If investigation is not completed within 24 hours, the accused has to be produced before the magistrate for further judicial/police custody. (section 167) Investigation in non-cognizable offense [Section 155] / 174 1. When information is given to an SHO of the commission within the limits of such station of a non-cognizable offence, he shall enter or cause to be entered the substance of the information in a book prescribed by the State Government and — i. refer the informant to the Magistrate; ii. forward the daily diary report of all such cases fortnightly to the Magistrate. 2. No police officer shall investigate a non-cognizable case without the order of Magistrate having jurisdiction. [section 155(2)] 3. When a Magistrate gives an order to a police officer to investigate a non-cognizable case, the police officer may exercise the same powers in respect of the investigation as in a cognizable case. (Except the power to arrest without warrant). [section 155(3)] 4. Where a case relates to two or more offences of which at least one is cognizable, the case shall be deemed to be a cognizable case, notwithstanding that the other offences are non-cognizable. [section 155(4)]. It has been held that the defect or illegality, however serious, has no direct bearing on the cognizance of a case or its trial. It is only in the nature of an error in the proceeding antecedent to trial and is curable under Section 465 Cr.P.C. unless it can be shown to have caused prejudice to the accused or has resulted in miscarriage of justice. Evidence collected by improper or illegal means is admissible if it is relevant and its genuineness stands proved. However, Court should be cautious while scrutinizing such evidence. Q27 Who can investigate a cognizable offense? Section 156(1): Any SHO may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try. Section 156(2): No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate. Section 157: SHO may proceed in person, or may depute one of his subordinate officers not being below such rank as the State Government may prescribe in this behalf. Section 36: See above Q28 Investigation is domain of executive and there should be no judicial interference. Discuss. Investigation is the domain of executive, primarily the police. According to section 2(h), investigation includes all the proceedings under the Code for the collection of evidence conducted by a police officer or any person (other than a Magistrate) who is authorised by a Magistrate. Hence, Magistrate is expressly excluded from conducting an investigation. The Supreme Court has viewed investigation of an offense as generally consisting of : 1. Proceeding to the spot 2. Ascertainment of facts and circumstances of the case 3. Discovery and arrest of the suspected offender 4. Collection of evidence: a. Examination of witnesses b. Search and seizure of things/places 5. Filing of chargesheet. Manohar Lal Sharma v. Principal Secretary (2014): See above Q29 IOs power to require attendance of witnesses and its exceptions. Section 160 empowers an investigating police officer to require attendance of witnesses. Essentials: ○ The order(notice) must be in writing. ○ The person appears to be acquainted with facts and circumstances of the case. ○ The person is within the limits of the police station or adjoining police station. ○ Such person shall attend. Following persons can only be required to attend their place of residence. 1. A Woman 2. Male person below 15 years of age. 3. Male person above 65 / 60 years. 4. Mentally or physically disabled person. 5. Person with acute illness. Provided further that if such person is willing to attend at the police station, such person may be permitted so to do. Section 160 enables the recording of statements under Section 161. Lalita Kumari v. Govt. of UP (2014) SC: Where police conducts preliminary inquiry to verify commission of a cognizable offence, it does NOT come under s.160. Q30 161 statements. Signing. Evidentiary value. Refusal. Etc. Statements Under Section 161 1. Section 161 allows a police officer or any other officer ordered by him to orally examine a person acquainted with the facts of the case. Such person includes the accused. 2. Such person is required to truly answer all questions. A person who remains silent or gives false information in answer to such questions can be prosecuted under the provisions of sections 179, 202 and 203 of the IPC. 3. However, Section 161 (2) says that he is not bound to answer questions which may expose him to a criminal charge. This gives effect to Article 20 (3) – Right against Self- Incrimination. Hence, a person may refuse to answer or keep silent. E.g. did you also had any hand in the offence? 4. Separate record of each person has to kept. Reduced into writing. The writing should be a record in the first person. Should not be in indirect form of speech. 5. Proviso:  May be recorded by AV electronic means.  Sexual offenses victim statement shall be recorded by woman officer 6. Recording of a joint statement of several persons is not allowed. Nandini Sathpathy v. P L Dani (1978): 1. The area covered by Article 20 (3) and Section 161 (2) is substantially the same. Section 161 is a statutory gloss over the fundamental right. 2. Accused may refuse to answer a question incriminating even if incrimination might be for a different offence. 3. The accused may have his lawyer during interrogation. 4. Police must warn the accused about his Article 20 (3) right. 5. Police must take him to a magistrate or doctor to enable him to convey if he suffered duress. Section 162: Statements to police not to be signed. Use in Evidence 1. Section 162 stipulates that a statement recorded by the police shall not be signed. This is a statutory safeguard against improper police practices. However, Signing doesn’t automatically make the statement inadmissible. 2. Effect of Signature i. If 161 statements are signed, it generally impairs the value of the evidence given by the person making and signing the statement. However, If 161 statements are signed by mistake, it does not vitiate the whole proceedings. ii. In State of Up v MK Anthony (1985), it was held that signature does not make the evidence inadmissible. Confrontation can be done to contradict the statement even if signed. iii. Supriya Jain v. State of Haryana (2023): Witness cannot be asked to sign his 161 statement. If he refuses to sign, police cannot register FIR against him under Section 180 IPC. (public servant requiring signature) 3. Section 162 allows contradiction of such witness in trial, but does not allow corroboration. 4. Section 162 does not affect the provisions of section 27 or 32(1) of the Evidence Act. Therefore, use of such statements as evidence is not limited to mere contradictions. 5. Munna Pandey v. State of Bihar 2023 (SC): Section 162 CrPC does not prevent a Trial Judge from looking into documents or putting questions to witnesses suo motu to contradict them. Evidentiary value of 161 statements 1. Statements made to the police are not substantive evidence as they are: a. Not part of the trial / judicial proceedings; b. Recorded by the prosecution / police; c. They are not on oath or have signature of the person; 2. In fact, the evidentiary value of the FIR is slightly higher than 161 statements. However, similar to FIR, only the prosecution witnesses can be contradicted under Section 145 of the Evidence Act. 3. Mere assertion that there are contradictions does not have any bearing in law. Contradictions have to be established by the manner given in section 145 of the Indian Evidence Act. Before contradicting, the witness's attention has to be drawn towards the previous statement which is contradictory. Then the previous statement has to be proved. 4. Rammi @ Rameshwar v State of MP: Minor variations in previous and latter statements does not amount to contradiction resulting in impeaching the credit of witness. There must be material irregularity/inconsistency. 5. A significant omission in 161 statements also amounts to contradiction. Ex: “I saw A holding the deceased” – Later: “I saw A and B holding the deceased.” Section 163: Police should not offer any inducement, threat, or promise to the accused or witnesses. However, if a person wishes to freely make a statement, the police should not prevent the same. Q31 Confession/ Statement to the Magistrate A "confession" is an admission made at any time by a person charged with an offence, stating or suggesting the inference that he has committed the offence. Section 164: A Magistrate may, whether he has jurisdiction or not, record any confession or statement made to him in the course of investigation. 164 statements can be recorded only during/after the investigation starts and before the inquiry/trial. Procedure for recording Confession 1. The accused should be warned by the Magistrate that he is not bound to make a confession. Lack of warning makes statements inadmissible. 2. Magistrate should be satisfied that it is being made voluntarily. Normally, the accused is kept in judicial custody for a day before confession. 3. If an accused is not willing to make a confession, he should be sent to judicial custody and not police custody. 4. Confession should be in the open court, but not in the presence of any police, even in the hearing range. 5. Confession shall be recorded in the manner provided in Section 281 – procedure for recording the examination of an accused person. As far as possible, it should be recorded in the language used by the accused. 6. Magistrate should make a memorandum that he has followed the procedure. 7. Accused should not be administered an oath for the confession. But it should be signed by the accused. However, oath has to be taken for recording statement of a witness. Section 463: When Magistrate has failed to record that procedure of section 164/281 has been complied with, oral evidence is admissible to show that procedure was duly followed, provided that: 1. Non-compliance has not injured the accused on merits and 2. Person had in fact duly made the statement recorded. ○ Oral evidence is admissible only for the procedure and not for the confession/statement. Further instruction according to the Delhi High court rules include: 1. The accused should be kept away from the influence of the police for some time before recording a confession to ensure its voluntariness. (around half hour). 2. Confessions recorded under Section 164 should not be handed over to the police officer in charge of the prisoner. Instead, it should be forwarded directly to the Magistrate responsible for the case. Mahabir Singh v State of Haryana (2001) 1. It is not necessary that the accused person should be produced by the police for recording the confession. 2. But it is necessary that such appearance must be in the course of an investigation. 3. Magistrate cannot record the confession of a person against whom no investigation is going on. Evidentiary value of 164 Confession 1. While a confession can be used as a substantive evidence, a non-confessional statement is not a substantive evidence. A non-confessional statement can be used for corroborating or contradicting the witness. 2. If oath is administered, confessional statement loses its evidentiary value. 3. Under certain circumstances, a confession can form the basis for a conviction.(Aloke Nath Dutta v. State of W.B. (2007) 4. A confession made to a Magistrate and not recorded by him cannot be proved at the trial by tendering the oral evidence of the Magistrate. Q32 Medical Examination of Rape victim Section 164A provides that during the investigation of offence of rape or attempt to rape, if the need for medical examination of victim arises, then it shall be conducted by a registered medical practitioner within twenty-four hours of receiving information regarding the offence, with the consent of the woman. The practitioner has to carry out the examination without delay and prepare a report giving the following particulars, namely:— 1. the name and address of the woman and of the person by whom she was brought; 2. the age of the woman; 3. the description of material taken from the person of the woman for DNA profiling; 4. marks of injury, if any, on the person of the woman; 5. general mental condition of the woman; and 6. other material particulars in reasonable detail. Q33 Remand Section 167 prescribes the procedure when investigation cannot be completed within 24 hours as fixed by section 167. REMAND (SEC 167) (1) When investigation cannot be completed within 24 hours, the police: ○ Shall Forward the accused to magistrate ○ Shall Forward the entries of diary (2) The Magistrate (who may or may not have jurisdiction): May authorise police or judicial custody (as he thinks fit) ○ Police custody: custody of normal police. Police lock up. ○ Judicial custody: jail police. Written warrant addressed to jailor. Not exceeding 15 days as a whole or in parts. In case of offenses punishable with less than 10 years, Police custody can be given in the first 40 days. In case of offenses punishable with 10 years or more, Police custody can be given in the first 60 days. Total period of Police custody cannot exceed 15 days whether given in whole or in parts. Only judicial custody can be granted after expiry of the first 15 days. (CBI v Anupam Kulkarni) Maximum time limit for remand ○ Not exceeding 90 days when offense is punishable for 10 years or more, life imprisonment or death. (minimum term should not be less than 10 years) ○ Not exceeding 60 days for any other offense. Reasons must be recorded when police custody is granted. (section 167(3)). Hussainara Khatoon v. State of Bihar: The Magistrate should inform the accused of the right to bail under Section 167. Khatri v. State of Bihar: As per Section 167, the accused should be physically present when the Magistrate commits him to custody. This is mandatory, otherwise the action will be illegal. Uday Mohanlal Acharya v State of Maharashtra (2001): When the accused has been in custody for the specified period and no chargesheet has been filed, if accused applies for statutory bail then the magistrate is obliged to grant it even if chargesheet is filed after filing of bail application by the accused. Sayed Mohd. Ahmad Kazmi v. State (Government of NCT of Delhi) (2012) SC: If an accused does not exercise his right to grant of statutory bail before the charge-sheet is filed, he loses his right to such benefit once such charge-sheet is filed and can, thereafter, only apply for regular bail. Kapil Wadhawan v ED: The day of remand is to be included for considering a claim for default bail - the stipulated 60/90 day remand period under Section 167 CrPC ought to be computed from the date when a Magistrate authorizes remand - Where the chargesheet / final report is filed on or after the 61st/91st day, the accused would be entitled to default bail. Gautam Navlakha v. National Investigation Agency, 2021: House arrest may be granted u/s 167 and 309. SC indicated criteria like age, health condition and the antecedents of the accused, the nature of the crime, the need for other forms of custody and the ability to enforce the terms of the house arrest. Q Decide the remand application. When was he arrested, when was he produced, is there any material on record, what is the significance of such material, case diary discrepancies, injuries, gravity of offense etc. have to be considered and answer to be given accordingly. Q34 police diaries and its values Section 172 talks about 'case diary' or 'special diary'. It mandates the IO to maintain the case diary and enter the day to day proceedings in it. The purpose is to avoid concoction of evidence or changing chronology to suit the investigation. It ensures transparency in investigation. Case diary can be used for the following purposes: 1. Criminal court may use it as an aid for inquiry or trial but not as evidence. 2. Police officer can use it for refreshing his memory during trial. In such case accused can ask for the police diary and cross-examine as per section 161 of IEA. 3. Court may use it to contradict such police officer in the manner given in section 145 of IEA. Case diary is not a substantive evidence. Non-maintenance of case diary does not in itself vitiate the trial. However, it might diminish the value of prosecution evidence. Q35 Chargesheet The report filed by the Police before the Court after the conclusion of investigation, is called the "Police Report" as defined under Section 2 (r) Cr.P.C. and filed under Section 173 (2) Cr.P.C. If the conclusion reached by the Police is one falling under Section 169 Cr.P.C. to the effect that there is no sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to the Magistrate for trial, the Police may file the "Final Report". If, on the contrary, the conclusion reached by the Police is one falling under Section 170 Cr.P.C. to the effect that there is sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to the Magistrate for trial, the Police may file a Police Report which is loosely called a "charge-sheet" or "Police challan" and the Police Officer shall forward the accused under custody to the Magistrate empowered to take cognizance of the offence. Section 173: Report of Police Officer on completion of Investigation 1. Rape investigation to be completed within 2 month 2. After completion of investigation, police shall forward the police report (chargesheet) or final (closure) report to Magistrate. 3. The police shall communicate the action taken by him to the first informant. Chargesheet 1. If report is under Section 170 (Sufficient Evidence), police shall also forward all documents on which prosecution relies and 161 statements of witnesses proposed to be examined by prosecution (Section 175 (5)). 2. The report should be in the form prescribed by the State Government. It should state: a. Name of the parties b. Nature of the information c. Names of the persons who appear to be acquainted with the circumstances i. LW(list witness): they later become PW or DW during trial when they take oath. ii. CW (court witness): court calls on its own. d. Whether any offence committed, suspected person e. Whether accused has been arrested f. Whether he has been released on bail g. Whether forwarded in custody u/s 170 h. (seizure panchnama, scene of offense panchanama, confessional panchnama etc.) Final (Closure) report 1. If police files a closure report stating no offence occurred, notice has to be given to defacto complainant by the Magistrate to come to the court. 2. If complainant doesn’t agree with the final report, Magistrate has 2 options: a. Magistrate may record complainant's statement on oath and treat it as protest petition b. Ask him to file a protest petition 3. After protest petition, again 2 options: a. Take cognizance on the basis of protest petition (treating it as a private complainant) (complaint procedure will be applicable) b. Direct further investigation u/s 156(3) Abhinandan Jha v. Dinesh Mishra (1967) (SC): If magistrate receives final report, he may- 1. Agree with the report and decline cognizance 2. Disagree with the report and order further investigation u/s 156(3). 3. May take cognizance u/s 190(c) and proceed under Section 200 & 202 CrPC. Gangadhar Janardan Mhatre vs State Of Maharashtra (2004) When a chargesheet is forwarded by the police to the Magistrate, the Magistrate may either 1. accept the report and take cognizance of the offence and issue process, or 2. may disagree with the report and drop the proceeding, or 3. may direct further investigation under Section 156(3) and require the police to make a further report. If final report is submitted stating that no offence appears to have been committed then.: 1. he may accept the report and drop the proceeding; or 2. he may disagree with the report and take the view that there is sufficient ground for further proceeding, take cognizance of the offence and issue process; or 3. he may direct further investigation to be made by the police under Section 156(3). Thus, upon receipt of a final report under Section 173(2) a Magistrate is entitled to take cognizance of an offence under Section 190(1)(b) of the Code even if it is to the effect that no case is made out against the accused. The Magistrate can take into account the 161 statements and take cognizance of the offence complained of and order the issue of process to the accused. The Magistrate is not bound in such a situation to follow the procedure laid down in Sections 200 and 202 of the Code for taking cognizance of a case under Section 190(1)(a) though it is open to him to act under Section 200 or Section 202 also. Supplementary Report : Section 173 (8) Upon completion of investigation and submission of police report, if additional evidence is found, police can make further investigation and send supplementary report(s) to the Magistrate. Sakiri Vasu v. State of U.P. (2008): An aggrieved person can only claim that the offence be investigated properly, but he has no right to claim that it be investigated by any particular agency of his choice. Q36 Further Investigation under 173(8) Section 173(8) states that submission of report by the police under sec 173(2) to the magistrate shall not preclude the IO or SHO to further investigate in respect of that offence and file a supplementary chargesheet. It has been held by the Supreme Court that the power to order “Fresh”, “de novo” or “reinvestigation" lies only with the Constitutional Courts and not with the Magistrates. Ranjeet Singh v State of UP: Hearing accused not necessary for making order of further Investigation. Vinubhai Haribhai Malaviya and Others v. State of Gujarat and Another, (2019) 1. Magistrate's power to order further investigation u/s 156(3) can be exercised at both pre as well as post cognizance stages. 2. Magistrate has the power to order further investigation u/s 173(8) also. The word 'all' in sec 2(h) includes proceedings u/s 173(8) also. Therefore, magistrate direction to further investigate u/s 156(3) would also include proceedings u/s 173(8). Q37 Protest Petition After registration of the FIR, the police carries out the investigation. After completion of the investigation the police submits a Chargesheet or final report under section 173(2) of the CrPc to the magistrate. If complainant doesn’t agree with the final report, Magistrate has 2 options: 1. Magistrate may record complainant's statement on oath and treat it as protest petition 2. Ask him to file a protest petition Bhagwant Singh case (1985): ○ When the magistrate is not inclined to take cognizance after submission of closure report by the police u/s 173(2), the informant must be given an opportunity of being heard so that he can make his submissions to persuade the Magistrate to take cognizance of the offence and issue process. ○ If the complainant is not satisfied with the investigation, he may file an application challenging the investigation, which is generally called 'protest petition'. After protest petition is filed, 3 options with the Magistrate: 1. Accept the final report because no case is made out in protest petition. 2. Take cognizance on the basis of protest petition (treating it as a private complainant) (complaint procedure will be applicable) 3. Direct further investigation u/s 156(3) It has been held by the Supreme Court that protest petitions can be entertained even after acceptance of closure report. Q38 Inquest report Section 174 (Inquest Report) An inquest is an inquiry to find out the apparent cause of death of a person who has died under suspicious circumstances. Purpose : To ascertain whether a person has died under suspicious circumstances or an unnatural death and if so what is the apparent cause of death. To record the apparent cause of death describing the injuries as may be found on the body of the deceased. Procedure: Before proceeding to hold inquest, the SHO should give intimation to the executive Magistrate. (Permission of Executive Magistrate not required before holding inquest). He shall proceed to the place where the body of the deceased is, and in the presence of two or more respectable inhabitants of the neighbourhood make an investigation and draw up a report of the cause of death describing wounds, fractures, bruises, marks of injury, weapons, etc.; He shall forward the report, after signing it himself and getting it signed by the other persons who concur therein, to the District Magistrate or Sub-divisional Magistrate. If the cause of death is doubtful, he forwards the body with a view to its being examined to the nearest Civil Surgeon or other medical officer appointed by the State Government, if the state of weather and the distance admit of its being so forwarded without risk of putrefaction. The police officer may by order in writing summon two or more persons for investigation and persons acquainted with the fact of the case and every such person is bound to answer truly all questions except which expose them to a criminal penalty. (s. 175) Evidentiary Value: The opinion given in the inquest report does not attain finality because the dead body has to be subjected to post-mortem examination which is more authentic. If the injuries are not described in detail in the inquest report, it is not a circumstance against the prosecution because the investigation officer is not a medical expert. Inquest report is not a substantive evidence. Non-mentioning of the names of eye witnesses in the inquest report will not render their testimony unreliable. Section 176: Inquiry by Magistrate into cause of death In cases reported u/s. 174, any Magistrate so empowered may hold an inquiry into the cause of death either instead of or in addition to the investigation held by the police officer. He may cause the dead body of any person to be disinterred and examined. The Magistrate shall inform the relatives of the deceased and allow them to be present in the inquiry. In case of death or disappearance of a person, or rape of a woman while in the custody of the police, a mandatory Judicial inquiry is required to be held, and in case of death, examination of the dead body is to be conducted within twenty-four hours of the death. Q39 Investigation outside India Section 166A. Letter of request to competent authority for investigation in a country or place outside India.— If, in the course of an investigation into an offence, an application is made by the i

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