Code of Criminal Procedure (CrPC) 1973 – An Ultimate Guide

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  • Last Updated on 9 August, 2022

Code of Criminal Procedure

Table of Contents

1. Introduction

2. Important Terms

3. Power of Courts to Pass Sentence & Provisions Relating to Arrest

4. Summon & Warrant

5. Security for Peace & Good Behaviour and Maintenance of Public Order & Tranquility

6. Preventive Actions of Police, Information to Police & Power to Investigate

7. Power of Magistrate & Limitation Period for Taking Cognizance

8. Anticipatory Bail & Summary Trials

1. Introduction

The Code of Criminal Procedure, 1973 creates the necessary machinery for apprehending the criminals, investigating the criminal cases, their trials before the Criminal Courts and imposition of proper punishment on the guilty person.
The Code enumerates the hierarchy of criminal courts in which different offences can be tried and then it spells out the limits of sentences which such Courts are authorized to pass.
The Code of Criminal Procedure, 1973 is applicable to all criminal proceedings.

2. Important Terms

2.1 Offence [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 compliant may made under Section 20 of Cattle Trespass Act, 1871.

The proper analysis of definition derives that if any person does a particular act which is specifically punishable under any duly passed law it is said to be an offence. Further, if any person omits to do a particular thing or procedure or act, then also he had said to be committed an offence.

    • In second category compliant made u/s 20 of Cattle Trespass Act, 1871, forms an offence.
    • However, the term is more elaborately defined in Section 40 of the Indian Penal Code, 1860 which states that “offence” denotes a thing made punishable by the Code.
    • An offence is what the legislature classes as punishable.
    • Mens Rea (bad intention or guilt) is an essential ingredient in every offence.

2.2 Bailable Offence [Section 2(a)]

Bailable offence means an offence which is –

–   shown as bailable in the First Schedule or

–   made bailable by any other law for the time being in force.

Non-bailable offence means any offence other than bailable offence.

Bail means the release of the accused from the custody of the officers of law and entrusting him to the private custody of persons who are sureties to produce the accused to answer the charge at the stipulated time or date.

2.3 Cognizable Offence [Section 2(c)]

Cognizable offence means an offence for which a police officer may arrest without warrant –

In accordance with the First Schedule or

 – Under any other law for the time being in force.

2.4 Non-Cognizable Offence [Section 2(l)]

Non-cognizable offence means an offence for which a police officer has authority to arrest with warrant.

2.5 Complaint [Section 2(d)]

Complaint means any allegation made orally or in writing to a Magistrate, with a view to taking his action under the Code, that some person, whether known or unknown, has committed an offence. However, a complaint does not include a police report.

Explanation: If a report is made by a police officer in a case which discloses after investigation the commission of a non-cognizable offence, the same is deemed to be a complaint and the police officer by whom such a report is made is deemed to be the complaint.

A complaint in a criminal case is what a plaint is in a civil case.

Only allegation made orally or in writing would constitute a complaint, if the following four conditions are satisfied.

– It must be made to Magistrate (and not to a Judge)

– It must be made with a view that a Magistrate may take action on it.

– Such action must be under this code.

It must allege the commission of an offence.

There is no particular format of a complaint. A petition addressed to the Magistrate containing an allegation that an offence has been committed, and ending with a prayer that the culprit be suitably dealt with is a complaint. [Mohd. Yousuf v. Afaq Jahan]

2.6 Investigation [Section 2(h)]

Investigation includes all the proceedings for the collection of evidence, conducted by a police officer or by any person who is authorized by a Magistrate in this behalf.

2.7 Inquiry [Section 2(g)]

Inquiry means every inquiry, other than a trial conducted by a Magistrate or a Court.

2.8 Different stages of a criminal trial

‘Investigation’, ‘Inquiry’, and ‘Trial’ ordinarily denote three different stages of a criminal trial.

(1) The first stage is reached when a police officer investigate into a case. If he forms an opinion that an offence has been committed. He sends the case to a Magistrate.

(2) In second stage, the Magistrate inquires into the case. If prima facie no case is made out, he dismisses the complaint or discharges the accused. If the Magistrate is of  contrary opinion, he frames a charge, and calls upon the accused to plead to the same.

(3) Final stage is reached when the charge is framed. The Magistrate may then try the case himself, or commit it for trial to the Court of Session or the High Court, as the case may be.

2.9 Points of Distinction between Investigation & Inquiry

Points Investigation Inquiry
By whom Investigation includes all the proceedings for the collection of evidence, conducted by a police officer or by any person who is authorized by a magistrate in this behalf. Inquiry means every inquiry, other than a trial conducted by a Magistrate or a Court.
What is Done Investigation represents an attempt to collect of evidence. Inquiry beings with interrogation.
Aim Main aim of Investigation is to collect evidence. An inquiry aims at determining the truth or falsify of certain facts.
Judicial/ non-judicial An investigation is never judicial. An inquiry may be judicial or non-judicial.

2.10 Judicial Proceeding [Section 2(i)]

Judicial proceeding includes any proceeding in the course of which evidence is or may be legally taken on oath.

2.11 Pleader [Section 2(q)]

With reference to any proceedings in any Court, it means a person authorized by or under any law for the time being in force, to practice in such Court and includes any other person appointed with the permission of the Court to act in such proceeding.

It is an inclusive definition and a non-legal person appointed with the permission of the Court will also be included.

2.12 Public Prosecutor [Section 2(u)]

A public prosecutor means any person appointed u/s 24, and includes any person acting under the directions of a Public Prosecutor.

Public prosecutor, though an executive officer is, in a larger sense, also an officer of the Court and he is bound to assist the Court with his fair views and fair exercise of his functions.

2.13 Summons Case [Section 2(w)]

Summons-case means a case relating to an offence, and not being a warrant-case.

2.14 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 2 years.

2.15 Points of Distinction between Bailable Offence & Non-bailable Offence

Points Bailable Offence Non-bailable Offence
Meaning A bailable offence is an offence which is shown as bailable in First Schedule to the Code or which is made bailable by any other law. A non-bailable offence means offence other than bailable offence.
Example First Schedule to the Code of Criminal Procedure gives a list of bailable offense, as for instance:

– Rioting,
– Being a member of an un-lawful assembly,
– Bribery so on.

Examples of non-bailable offence are:

– Murder,
– Culpable homicide,
– Counterfeiting coins etc.

Seriousness Bailable offences are less serious. Non-bailable offences are more serious.
Cognizable/ Non-Cognizable Bailable offences are generally non-cognizable. Non-bailable offences are generally cognizable.
IPC If an offence which is punishable with imprisonment for less than 3 years or with fine only, it is bailable. A Non-Bailable offence is one which is punishable with a death penalty or life imprisonment for 3 years or more.
Arrest Police officer is authorized to arrest with warrant. Police officer is authorized arrest without warrant.

2.16 Distinction between: Non-cognizable offence & Cognizable offence

Points Non-cognizable offence Cognizable offence
Meaning Non-cognizable offence means an offence for which a police officer can make arrest with warrant. Cognizable offence means an offence for which a police officer may arrest without warrant.
Cognizable/Non-Cognizable Non-cognizable offences are generally bailable. Cognizable offences are generally non-bailable.
Seriousness Non-cognizable offences are less serious. Cognizable offences are more serious.
Arrest by Police Officer Police officer is authorized to arrest with warrant. Police officer is authorized arrest without warrant.

2.17 Points of Distinction between Warrant Case & Summons Case

Points Warrant Case Summons Case
Meaning Warrant-case means a case relating to an offence punishable with

– death,
– imprisonment for life or
– imprisonment for a term exceeding 2 years.

Summons case means relating to an offence, and not being a warrant-case.
Framing of charge Charge is to be framed. No charge need be framed.
Conviction After the charge is framed, if the accused pleads guilty, the Magistrate may Convict him. Magistrate has discretion to convict an accused, if he pleads guilty.
Discharge/release Magistrate cannot discharge the accused if the complainant does not appear. Accused may be released if the complainant does not appear.
Consent for withdrawn With the consent of the Court, the compliant can withdraw the remaining charges if the accused is convicted on one or more charges. With the permission of the Magistrate, the compliant can withdraw his compliant.
Conversion A warrant case cannot be converted into a summons case. A summons case can be converted into a warrant case.

3. Power of Courts to Pass Sentence & Provisions Relating to Arrest

3.1 Power of court to pass sentence

Following are the powers of Court to pass sentence:

Section Court/Magistrate Sentence that can be passed
Section 28 High Court Can pass any sentence authorized by law.
Session Judge or

Additional Session Judge

Can pass any sentence authorized by law.

However death sentence has to be confirmed by High Court.

Assistant  Session Judge Can pass sentence for term up to 10 years imprisonment.
Section 29 Chief Judicial Magistrate Can pass sentence for term up to 7 years imprisonment.
Magistrate of First Class

– Can pass sentence for term up to 3 years imprisonment or

– Fine up to ` 10,000 or

– Both

Magistrate of Second Class

– Can pass sentence for term up to 1 year imprisonment or

– Fine up to ` 5,000 or

Both

Chief Metropolitan Magistrate Shall have all the powers of Chief Judicial Magistrate, Magistrate of First Class and Magistrate of Second Class.

Example: Lalit Lokhande is charged for murder of Prem Chopra. The charge sheet is filed in the Court of Chief Judicial Magistrate, who passed an order of sentence of imprisonment for life.

According to Section 29 of the Code of Criminal Procedure, 1973, Chief Judicial Magistrate is competent to pass sentence for term up to 7 years imprisonment. Hence, Lalit Lokhande can file appeal against the order of the Chief Judicial Magistrate.

3.2 Sentence of imprisonment in default of fine [Section 30]

The Court of a Magistrate may award additional imprisonment in default of payment of fine. However the term of imprisonment shall not exceed 1/4th of the term of imprisonment which the Magistrate is competent to inflict as punishment for the offence.

The imprisonment awarded under this section may be in addition to a substantive sentence of imprisonment for the maximum term awardable by the Magistrate u/s 29.

Example: A Magistrate of the First Class passes a sentence of imprisonment for a term of 3 years with a fine of 10,000, and in case of failure to pay the fine, to serve an additional imprisonment for another 1 year. The convict feels aggrieved by the sentence. Can he prefer an appeal against the judgment?

As per Section 29 of the Code of Criminal Procedure, 1973, Magistrate of 1st Class:

– Can pass sentence for term up to 3 years imprisonment or

– Fine up to ` 10,000 or

– Both

As per Section 30, the Court of a Magistrate may award additional imprisonment in default of payment of fine. However the term of imprisonment shall not exceed 1/4th of the term of imprisonment which the Magistrate is competent to inflict as punishment for the offence.

In present case, the Judicial Magistrate of the First Class can inflict sentence of imprisonment which may extend to 3 years as punishment for the offence of theft. Therefore, the term of additional imprisonment which can be awarded in default of payment of fine cannot be more than 1/4th of 3 years. In other words, the term of additional imprisonment in default of payment fine cannot exceed 9 months. [36 month × 1/4 = 9 months]

The accused is advised to challenge the validity of the sentence accordingly.

3.3 When police may arrest without warrant [Section 41]

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.

(b) Who has in possession, without any lawful excuse an implement of house-breaking.

(c) Who has been proclaimed as an offender, either under the Criminal Procedure Code or by any order of the State Government.

(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.

(e) Who obstructs a police officer while in the execution of his duty, or who has escaped, or attempts to escape, from lawful custody.

(f) Who is reasonably suspected of being a deserter from any of the Armed Forces of the Union.

(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.

(h) Who being a released convict commits a breach of any rule made under Section 356(5).

(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 there from that the person might lawfully be arrested without a warrant by the officer who issued the requisition.

Example: A requisition was received by the sub-inspector of a police station from another police station to arrest Sameer in connection with the commission of a non-cognizable offence. Can the sub-inspector arrest Sameer?

According to Section 41 of the Code of Criminal Procedure, 1973, the police officer can arrest a person without warrant for whose arrest a requisition is received from another police station only when the offence in connection with which arrest is required to be made is such for which that person can be lawfully arrested without a warrant.

In this case, arrest is required to be made in connection with a non-cognizable (i.e. bailable) offence for which warrant is necessary. Hence, Sameer cannot be lawfully arrested without a warrant. Therefore, the sub-inspector cannot arrest Sameer as per the requisition alone.

3.4 Arrest on refusal to give name and residence [Section 42]

When any person who, in the presence of a police officer, has committed or has been accused of committing a non-cognizable offence (bailable 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.

3.5 Arrest by a private person and procedure on such arrest [Section 43]

Any private person can arrest any person who has in his presence, committed a non-bailable or cognizable offence, or any person who is proclaimed offender.
Any person so arrested must, without unnecessary delay, be handed over to a police officer or to the nearest police station.
If, however, there is a reason to believe that he has committed a non-cognizable (bailable) offence, and if refuses to give his name and address to the police officer or if he gives name and address which appears to be false such a person is to be dealt with section 42; but if there is no sufficient reason to believe that he has committed any offence, he shall be at once released.

3.6 Arrest by Magistrate [Section 44]

The Magistrate has power to arrest a person who has committed an offence in his presence and commit the offender to custody.
The Magistrate has power to arrest a person for which he is competent and has also been authorized to issue a warrant.

3.7 Arrest how is it made? [Section 46]

In making an arrest the police officer or other person making the same shall actually touch or confine the body of the person to be arrested, unless there be a submission to the custody by word or action.
If such person forcibly resists the endeavour to arrest him, or attempts to evade the arrest, such police officer or other person may use all means necessary to effect the arrest.
The Section does not give a right to cause the death of a person who is not accused of an offence punishable with death sentence or life imprisonment.

3.8 Important points relating to arrest

    • Person arrested is to be taken before the Magistrate or officer-in-charge of a police station without unnecessary delay and subject to the provisions relating to bail, Article 22(2) of the Constitution of India also provides for producing the arrested person before the Magistrate within 24 hours.
    • When a person is arrested under a warrant, he can be kept into custody for a period not exceeding 24 hours, and before the expiry of that period he is to be produced before the nearest Magistrate, who can order his detention for a term not exceeding 15 days, or he can be taken to a Magistrate, under whose jurisdiction he is to be tried, and such Magistrate can remand him to custody for a term which may exceed 15 days but not more than 60 days.
    • Officers in-charge of the concerned police stations shall report to the Magistrate the cases of all persons arrested without warrant, within the limits of their respective police stations whether such persons have been admitted to bail or otherwise. [Section 58]
    • A person arrested by a police officer shall be discharged only on his own bond or on bail or under the special order of a Magistrate. [Section 59]
    • If a person in lawful custody escapes or is rescued, the person, from whose custody he escaped or was rescued, is empowered to pursue and arrest him in any place in India and although the person making such arrest is not acting under a warrant and is not a police officer having authority to arrest, nevertheless, the provisions of Section 47 are applicable which stipulates provisions relating to search of a place entered by the person sought to be arrested.

4. Summon & Warrant

4.1 Requirements of valid summon [Section 61]

A Summon is a form of process issued by a Court, calling upon a person to appear before Magistrate, or to produce a document or thing.

Requirements of valid summon:

    • It must be in writing.
    • It must be in duplicate.
    • It must be signed by the presiding officer of Court.
    • It must have seal of the Court.

If any summons does not comply with all these requirements it is invalid and it can be objected to and be disregarded by the person to whom it is addressed.

It is to be noted that a Summons should be clear and specific in its terms, as to the description of the Court, the place, date and time at which the person Summoned is to attend.

4.2 Service of summons [Section 62]

The summons shall be served by a Police Officer or by an officer of the Court or other public servant.
If so required by the Serving Officer, the person on whom the summons is served must sign a receipt on the other copy.

4.3 Service of summons on corporate bodies and societies [Section 63]

The service of summons on a corporation may be effected by serving it on the secretary, local manager or other principal 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.

Explanation: “Corporation” means an incorporated company or other body corporate and includes a society registered under the Societies Registration Act, 1860.

4.4 Service of summons when person doesn’t found [Section 64]

When the person who is summoned is not found after due diligence, the summons may be served leaving a duplicate thereof with an adult male member of his family residing with him, who must, if so required give a receipt for it.

However, it may be noted that a servant cannot be said to be a member of the family for the purpose of acceptance of summons.

4.5 Substituted service [Section 65]

In case the service cannot be effected by the exercise of due diligence, the serving officer can perform substituted service by affixing one of the duplicates to some conspicuous part of the house of homestead in which person summoned ordinarily resides.

In such a case, the Court, after making the necessary enquiries may either declare that the summons has been properly served, or it may order fresh service of the summons in such manner as it may consider proper.

4.6 Service on Government [Section 66]

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.

Such head of the office 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. Such signature shall be evidence of due service.

4.7 Warrant of arrest [Section 70]

The issue of a warrant is a more drastic step than the issue of a summons. Ordinarily, a warrant is issued only in serious cases and after a duly served summons is disobeyed or if the accused has wilfully avoided the service of summons.

A warrant is an order to a police officer or other person to arrest a person.

Requirements of valid warrant of arrest:

    • It must be in writing.
    • It must bear the name and designation of the person who is to execute it.
    • It must give full name and description of the person to be arrested.
    • It must state the offence charged.
    • It must be signed by the presiding officer; and
    • It must be sealed.

The Court issuing a warrant for the arrest of a person may, in its direction make an endorse-ment on the warrant that if person named in warrant execute a bond with sufficient sureties for his attendance before the Court at specified times, the officer executing the warrant can take such a Security and release the person from custody.

4.8 Person arrested to be brought before Court without delay [Section 76]

The police officer or other person executing the warrant of arrest shall bring the person arrested before the Court provided that such delay shall not in any case exceed 24 hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate’s Court.

4.9 Points of Distinction between Summons & Warrants

Points Summons Warrants
Meaning A Summons is a form of process issued by a Court, calling upon a person to appear before Magistrate, or to produce a document or thing. A warrant is an order to a police officer or other person to arrest a person.
Absconding to evade service Absconding to evade service of a summons is not punishable. Absconding to evade service of a warrant is punishable under the Indian Penal Code, 1860.
Substituted service Substituted service is available for summons. Substituted service is not available for warrant.
Step Issue of a warrant is a more drastic step than the issue of a summons. A warrant is justified, if summon, which is duly served is disobeyed or if the accused wilfully avoids service of the summons.

4.10 Proclamation for person absconding [Section 82]

If any Court has reason to believe (whether after taking evidence or not) that any person against whom a warrant has been issued by it has absconded or is concealing himself so that such warrant cannot be executed, such Court may public a written proclamation requiring him to appear at a specified place and at a specified time not less than 30 days from the date of publishing such proclamation.

4.11 Attachment of property of person absconding [Section 83]

The Court issuing a proclamation u/s 82 may, for reasons to be recorded in writing, at any time after the issue of the proclamation, order the attachment of any property, movable or immovable, or both, belonging to the proclaimed person.

The object of attaching property is not to punish him but to compel his appearance.

4.12 When search-warrant may be issued [Section 93]

Sometimes it is necessary that a person should produce a document or other thing which may be in his possession or power for the purposes of any investigation or inquiry under this Code. This can be compelled to be produced by issuing summons [Sections 91 & 92] or a warrant [Sections 93 to 98].

A search warrant can be issued in the following three cases:

(1) Where the Court has reason to believe that the person to whom a Summons or order is addressed will not produce document or thing as required by summons or requisition.

(2) Where document or thing is not known to the Court to be in the possession of any person.

(3) Where general search or inspection is necessary.

The person to whom such warrant is directed may search or inspect in accordance with search warrant.

A search warrant shall not be issued for searching a document, parcel or other thing in the custody of the postal or telegraph authority by a Magistrate other than a District Magistrate or Chief Judicial Magistrate.

Similarly, Search Warrant also cannot be issued so as to affect Sections 123 & 124 of the Indian Evidence Act, 1872 or the Bankers Books Evidence Act, 1981.

4.13 Search for persons wrongfully confined [Section 97]

If any District Magistrate, Sub-divisional Magistrate or Magistrate of the First Class has reason to believe that any person is confined under such circumstances that the confinement amounts to an offence, he may issue a search-warrant, and the person to whom such warrant is directed may search for the person so confined.

The person, if found, shall be immediately taken before a Magistrate, who shall make such order as in the circumstances of the case seems proper.

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5. Security for Peace & Good Behaviour and Maintenance of Public Order & Tranquility

5.1 Security for keeping the peace

The provisions of Chapter VIII of the Criminal Procedure Code, 1973 are aimed at persons who are a danger to the public by reason of the commission of certain offences by them. The object of this chapter is prevention of crimes and disturbances of public tranquility and breach of the peace.

5.2 Security for keeping the peace on conviction [Section 106]

When a Court of Session or Court of a Magistrate of First Class convicts a person of any of the specified offences or of abetting any such offence and is of opinion that it is necessary to take security from such person for keeping the peace, the Court may, at the time of passing sentence on such person, order him to execute a bond, with or without sureties, for keeping the peace for such period, not exceeding 3 years, as it thinks fit.

If the conviction is set aside on appeal or otherwise, the bond so executed shall become void.

Specified Offences: Specified offences are as follows:

(a) Any offence punishable under Chapter VIII of the India Penal Code 1860.

(b) Any offence which consists of or includes, assault or using criminal force or committing mischief.

(c) Any offence of criminal intimidation.

(d) Any other offence which cause, or was intended or known to be likely to cause a breach of the peace.

5.3 Security for keeping the peace in other cases [Section 107]

When an Executive Magistrate receives information that any person is likely to:

(a) Commit a breach of peace or

(b) Disturb the public tranquility or

(c) Do any wrongful act that may probably occasion a breach of the peace, or disturb the public tranquility

he may require such person to show cause why he should not be ordered to execute a bond for keeping the peace for a period not exceeding 1 year as the Magistrate deem fit.

Example: An Executive Magistrate receives information that Chanchal is likely to do a wrongful act that may probably occasion a breach of peace or disturb the public tranquility. Whether he can require Chanchal to show cause why he should not be ordered to execute a bond for keeping the peace for a period of 3 years.   

As per Section 107 of the Code of Criminal Procedure, 1973, when an Executive Magistrate receives information that any person is likely to:

(a) Commit a breach of offence

(b)Disturb the public tranquility

(c) Do any wrongful act that may probably occasion the peace; or disturb the public tranquility

he may require such person to show cause why he should not be ordered to execute a bond for keeping peace for a period not exceeding 1 year, as the Magistrate deem fit.

Thus, Executive Magistrate cannot issue order asking Chanchal to execute a bond for keeping the peace for a period of 3 years.

5.4 Commencement of period for which security is required [Section 119]

If any person, in respect of whom an order requiring security is made u/s 106 or 117, is at the time such order is made, sentenced to, or undergoing a sentence of, imprisonment, the period for which such security is required shall commence on the expiration of such sentence.

In other cases such period shall commence on the date of such order unless the Magistrate, for sufficient reason, fixes a later date.

Example: A is awarded punishment of rigorous imprisonment for 2 years by a Judicial Magistrate. A is also asked to execute security bond for keeping peace for 2 years. After undergoing this sentence. A submits an application of prayer for his release on the ground that he has already suffered imprisonment for 2 years. Will A succeed?

As per Section 119 of the Code of Criminal Procedure, 1973, if any person, in respect of whom an order requiring security is made, is at the time such order is made, sentenced to, or undergoing a sentence of, imprisonment, the period for which such security is required shall commence on the expiration of such sentence.

As per facts given in case, the period of security shall commence on the day the sentence expires and hence A will not succeed.

5.5 Dispersal of assembly by use of civil force [Section 129]

Any Executive Magistrate or office in-charge of a police station or any other officer not below the rank of sub-inspector may command any unlawful assembly or any assembly of five or more persons likely to cause a disturbance of the public peace, to disperse and it shall be thereupon the duty of the members of such assembly to disperse accordingly.

If any such assembly does not disperse necessary steps can be taken to disperse such assembly by force.

5.6 Use of armed forces to disperse assembly [Section 130]

If any such assembly cannot be otherwise dispersed, the Executive Magistrate of the highest rank who is present may cause it to be dispersed by the armed forces and to arrest and confine such persons in order to disperse the assembly or to have them punished.

5.7 Protection against prosecution for acts done u/s 129 or 130 [Section 132]

No prosecution shall be instituted against any persons for any act purporting to be done u/s 129 or 130 in any criminal Court except with the sanction of Central Government, if the person is an officer or member of the armed forces or with the sanction of State Government in any other case.

5.8 Conditional order for removal of nuisance [Section 133]

Following public nuisances which can be proceeded against:

(1) The unlawful obstruction or nuisance should be removed from any public place or from any way, river or channel which is or may be lawfully used by the public; or

(2) Carrying on any trade or occupation, or keeping of any goods or merchandise, injurious to the health of the community; or

(3) The construction of any building or the disposal of any substance, as is likely to cause conflagration or explosion; etc.

(4) The building, tent or structure near a public place.

(5) The dangerous animal requiring destroying, confining or disposal.

For initiating such prevention the Magistrate should keep in mind that he is acting purely in the public interest. For the applicability of Clause (1), the public must have the right of way which is being obstructed.

No order duly made by a Magistrate under this section shall be called in question in any Civil Court.

Example: Some persons are carrying trade of auctioning of vegetables in a private house. The persons who brought vegetables for sale kept their carts in public road where they caused obstruction to traffic. The noise caused by auctioning caused discomfort to the person living in the locality. An order was passed under section 133 of the Code of Criminal Procedure, 1973 restraining auctions of vegetables in their private house. Is order justified? Answer giving reasons.

The given case is based on Section 133 of the Code of Criminal Procedure, 1973. As per this section Magistrate can pass appropriate order for removal of nuisance.

The facts of the given case are similar to Ram Avatar v. State of U. P., in which Supreme Court held that keeping of carts on a road in front of shop was not obstruction. As regards the noise caused by auctioning of vegetables which caused discomfort to the persons living in locality, the order of Magistrate restraining auctions of vegetables was not valid.

In a trade like auctioning of vegetables being carried on for the well being of the community, some amount of noise had to be borne by the public.

Thus, order was passed by the Magistrate u/s 133 of the Code of Criminal Procedure, 1973 restraining auctions of vegetables in their private house is not valid.

5.9 Power to issue order in urgent cases of nuisance or apprehended danger [Section 144]

Where in the opinion of a District Magistrate, a Sub-divisional Magistrate or any other Executive Magistrate specially empowered by the State Government, there is sufficient ground and immediate prevention or speedy remedy is desirable, in such cases the Magistrate may by a written order direct any person to abstain from a certain act or to take certain order with respect to certain property in his possession or under his management, if such Magistrate considers that such direction is likely to prevent or tends to prevent, obstruction, annoyance of injury to any person lawfully employed, or danger to human life, health or safety or a disturbance of the public tranquility, or an affray.

An order under this Section may be passed ex parte in cases of emergency or in cases where the circumstances do not admit of the serving of notice in due time upon the person against whom the order is directed. An order under this Section can remain in force for two months, and may be extended further for a period not exceeding 6 months by the State Government if it considers necessary.

Affray = An instance of group fighting in a public place that disturbs the peace.

Example: A temple is located in City X. Large numbers of pilgrims are visiting to temple. A Magistrate passed an order under Section 144 of the Code of Criminal Procedure, 1973 to widen and heighten the doorway of a temple with a view to prevent the dangers arising from overcrowding. Is order justified? Answer giving reasons.

As per Section 144 of the Code of Criminal Procedure, 1973, Magistrate can issue order if there is sufficient ground for immediate prevention or speedy remedy.

In the given case temple is visited by a large number of pilgrims. The Magistrate with a view to prevent the dangers arising from overcrowding passed an order to widen and heighten the doorway of a temple is correct and as per the provisions of the Section 144 of the Code of Criminal Procedure, 1973 and therefore the order of Magistrate is valid.

6. Preventive Actions of Police, Information to Police & Power to Investigate

6.1 Powers of the police to take preventive action [Section 149 to 152]

Sections 149 to 152 of the Code of Criminal Procedure, 1973 deals with the powers of the police to take preventive action.

Police to prevent cognizable offence [Section 149]: Every police officer may interpose for the purpose of prevention of any cognizable offence (i.e. non-bailable).

Information of design to commit cognizable offence [Section 150]: Whenever a police officer receives information about any design to commit any cognizable offence, he should immediately pass on the same to his superior authority or any officer whose duty is to prevent the same.

Arrest to prevent the commission of cognizable offence [Section 151]: A police officer can arrest any person designing to commit cognizance offence without a warrant. Any one so arrested cannot be detained beyond 24 hours, unless specifically authorized for a longer period of detention under any law.

Prevention of injury to public property [Section 152]: A police officer, on his own, can interpose to prevent any injury to public property when it is attempted in his view.

Example: Baman comes to know that Anil intends to shoot Charan next day in a public garden at 8 a.m. Thereupon Baman informs police about it. The following day Anil is arrested by the police in the same public garden a few minutes before 8 a.m. and on being searched a full loaded pistol is found in his possession. Discuss the legality of arrest of Anil by the police.

As per Section 149 of the Code of Criminal Procedure, 1973, every police officer may interpose for the purpose of prevention of any cognizable offence (i.e. non-bailable).

Section 151 empowers a police officer to prevent the commission of any cognizable offence (i.e. non-bailable).

As per facts of the given case, the police have information that Anil intends to shoot Charan in a public garden at 8 a.m. Police officer arrested Anil in the garden few minutes before the 8 a.m. a full loaded pistol is also recovered from Anil. It is evident that information received by the police officer was reliable and the action of arrest without order from Magistrate or without warrant is legal.

 

Example: A police officer has come to know that certain persons sitting in a house equipped with arms are planning to commit a dacoity. The police officer approaches the house and arrests all the persons without getting any order from the Magistrate and without any warrant. Examine the validity of their arrest.   

Normally no person can be arrested without order of the Court or warrant. However, Section 151 of the Code of Criminal Procedure, 1973 empowers a police officer to prevent the commission of any cognizable offence (i.e. non-bailable).

A police officer can arrest any person designing to commit cognizance offence without a warrant if it appears to him that the commission of offence cannot be otherwise prevented. The person so arrested by the police officer cannot be detained in custody for a period exceeding 24 hours.

In view of the provisions of Section 151 the arrest of all the persons planning for dacoity is valid.

6.2 Information in cognizable cases (First Information Report) [Section 154]

Section 154 deals with what is commonly known as a First Information Report (FIR).

First Information Report means the information given to office-in-charge of a police station relating to the commission is cognizable offence and which is entered in the book which is to be kept by such officer. FIR is information given to police which sets criminal law in motion.

    • If information is orally given then officer-in-charge must reduce it in writing.
    • Information should be signed by the person giving it. But it should be noted that failure to observe the signing procedure does not make the information in admissible which is reduced into writing.
    • If the officer-in-charge of the police station refuses to record such information, the aggrieved person may send the same by post to the superintendent of police.

Object of the FIR: The object is to obtain early information of alleged criminal activity and to record the circumstances before there is time for them to be forgotten or embellished.

Importance: FIR can be put in evidence when information is examined.

Refusal of FIR by Police Officer: Any person aggrieved by a refusal on the part of an officer in charge of a police station to record the information may send the substance of such information in writing and by post to the Superintendent of Police concerned.

If Superintendent satisfies that such information discloses the commission of a cognizable offence, he shall either investigate the case himself or direct an investigation to be made by any police officer subordinate to him.

Secondly, aggrieved person may make a complaint of such offence before the Magistrate u/s 200.

Example: Ajit went to a police station to lodge a First Information Report (FIR) against Birsa for cognizable offence but the officer in-charge of police station refuses to record the FIR. What is your advice to Ajit for further action?

As per Section 154(3) of the Code of Criminal Procedure, 1973, any person aggrieved by a refusal on the part of an officer in-charge of a police station to record the information may send the substance of such information in writing and by post to the Superintendent of Police concerned.

Thus, Ajit is advised to send information or the substance of information relating to cognizable offence in writing and by post to the Superintendent of Police concerned. If Superintendent satisfies that such information discloses the commission of a cognizable offence, he shall either investigate the case himself or direct an investigation to be made by any police officer subordinate to him in the prescribed manner. It will also be treated as FIR.

Secondly, Ajit may make a complaint of such offence before the Magistrate u/s 200.

6.3 Points of Distinction between Complaint & FIR

Points Complaint First Information Report
Meaning A compliant is an allegation made orally or in writing to a Magistrate. First information is given in writing or orally to a police officer.
Cognizance The Magistrate can take cognizance of an offence on a complaint. The Magistrate cannot take cognizance of an offence on FIR.
Who can A compliant can be given only by a person authorized under law under certain circumstances. Any person can give the first information.

6.4 Information as to non-cognizable cases and investigation of such cases [Section 155]

    • When information is given to police officer of the commission of a non-cognizable offence, he shall enter the substance of the information in a book and refer the informant to the Magistrate.
    • No police officer shall investigate a non-cognizable case without the order of a Magistrate having power to try such case or commit the case for trial.
    • Any police officer receiving such order may exercise the same powers in respect of the investigation (except the power to arrest without warrant) as an officer in charge of a police station may exercise in a cognizable case.
    • 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.

Example: An information is given to the in-charge of police station against Rahul, a small trader, that he has committed a non-cognizable offence of fraudulent use of false weights and measures. The in-charge of police station, after entering the substance of the information in the Daily Diary kept at the police station, commences investigation without the order of the Magistrate. Rahul objects to this action of the police. Will the objection of Rahul be sustained?

As per Section 155 of the Code of Criminal Procedure, 1973, when information is given to police officer of the commission of a non-cognizable offence, he shall enter the substance of the information in a book and refer the informant to the Magistrate. Further, no police officer shall investigate a non-cognizable case without the order of a Magistrate. Hence, objection of Rahul will sustain.

6.5 Police officer’s power to investigate cognizable cases [Section 156]

    • Any officer in-charge of a police station may, without the order of a Magistrate, investigate any cognizable case.
    • 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.
    • Any Magistrate empowered under section 190 may order such an investigation as above mentioned.

A ‘First Information Report’ (FIR) was lodged against Murari. It was alleged that he committed five offence – four non-cognizable and one cognizable. The police registered the case and started investigation without the order of a Magistrate. Can Murari challenge the validity of the investigation?

Where a case relating to two or more offence of which at least one is cognizable, the case shall be deemed to be a cognizable case, irrespective of the fact that the other offences are non-cognizable.

As per Section 156 of the Code of Criminal Procedure, 1973, any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case.

Accordingly, the referred case will be treated as a cognizable case; and hence, the police can conduct investigation in respect of all the offences without the order of a Magistrate.

6.6 Procedure for investigations [Section 157]

If, from information received or otherwise, an officer in charge of a police station has reason to suspect the commission of an offence, he shall forthwith send a report of the same to a Magistrate and shall proceed in person, or shall depute one of his subordinate officers, to proceed, to the spot, to investigate circumstances of the case, and, if necessary to take measures for the discovery of the offender.

6.7 Report how submitted [Section 158]

    • Every report sent to a Magistrate shall be submitted through superior officer of police.
    • Such superior officer may give instructions to the officer and shall after recording instructions on report, transmit the same without delay to the Magistrate.

7. Power of Magistrate & Limitation Period for Taking Cognizance

7.1 Cognizance of offences by Magistrates [Section 190]

Any Magistrate of the First Class, and any Magistrate of the Second Class specially empowered in this behalf, may take cognizance of any offence –

(a) upon receiving a complaint of facts which constitute such offence;

(b) upon a police report of such facts;

(c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.

The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance of such offences as are within his competence to inquire into or try.

7.2 Cognizance of offences by Courts of Session [Section 193]

Except as otherwise expressly provided by the Code or by any other law for the time being in force, no Court of Session shall take cognizance of any offence as a Court of original jurisdiction unless the case has been committed to it by a Magistrate under the Code.

7.3 Bar to taking cognizance after lapse of the period of limitation [Section 468]

Except as otherwise specifically provided no Court shall take cognizance of an offence after the expiry of the period of limitation as set out below:

Types of offence Period of limitation
If the offence is punishable with fine only. 6 months
If the offence is punishable with imprisonment up to 1 year. 1 year
If the offence is punishable with imprisonment exceeding 1 year but not exceeding 3 years. 3 years

Example: X commits an offence by causing injury to Y, punishable under Section 323 of the Indian Penal Code, for a term of 1 year or with a fine of 1,000. Y makes a complaint to the Court of the Metropolitan Magistrate against X after 10 months of the commission of the offence. Can the said Court take cognizance of that offence?

The Court can take cognizance of the offence under Section 468, which provides limitation for taking cognizance of certain offences by the Courts. The period of limitation shall be:

(a) 6 months, if the offence is punishable with fine only.

(b) 1 year, if the offence is punishable with imprisonment for a term not exceeding 1 year.

(c) 3 years, if the offence is punishable with imprisonment for a term exceeding 1 year but not exceeding 3 years.

In the given case, the offence is punishable with imprisonment not exceeding 1 year. It comes under category (b) above, and therefore, the limitation period prescribed for taking cognizance of the offence is 1 year. As Y made complaint after 10 months to the Court, which is well within the limitation period, the Court will take cognizance of the offence.

7.4 Commencement of the period of limitation [Section 469]

In relating to any offender, the period of limitation commences:

(a) On the date of the offence, or

(b) When the commission of the offence was not known to the aggrieved person or to any police officer, on the first day on which such offence comes to the knowledge of such person or to any police officer, whichever is earlier; or

(c) When it is not known by whom the offence was committed on the first day on which the identity of the offender is known to the aggrieved person or the police officer investigating into the offence, whichever is earlier.

7.5 Exclusion of time in certain cases [Section 470 & 471]

Following will be excluded in computing the period of limitation:

(1) Day from which such period has to be computed.

(2) Due to defect of jurisdiction.

(3) Where the institution of the prosecution has been stayed the period of the continuances of the injunction or order.

(4) Where notice of prosecution for the offence has been given, the period of such notice.

(5) Where under any law the previous consent or sanction of the Government or any other authority is required for the institution of the prosecution, the time required for obtaining such consent or sanction.

(6) In time during which the offender has been absent from India, or any territory outside India which is under the administration of the Central Government.

(7) Time during which the offender has avoided arrest by absconding or concealing himself

(8) Where the period of limitation expires on a day when the Court is closed, the cogniza-nce may be taken on the day on which the Court reopens.

Example: A commits an offence punishable with imprisonment which may extend to 3 years in 2012. Soon thereafter, A went to America. On his return in 2018, prosecution was started against A in respect of the above offence. A raised an objection that the Court cannot take cognizance of the offence because a period of more than 3 years has elapsed after the commission of the offence. Will the Court allow this objection?

A has committed an offence punishable with imprisonment up to 3 years. Hence, cognizance can be taken before expiry of a period of 3 years. But in computing the period of limitation the time during which the offender has been out of India or from any territory outside India shall be excluded.

Hence, the Magistrate can taken cognizance because, the span of time from 2012 to 2018 will not be included in computation to period of limitation, as during this period A was absent from India.

7.6 Continuing Offences [Section 472]

In the case of a continuing offence, a fresh period of limitation begins to run at every moment during which the offence continues.

Example of continuing offence: Non-payment of employer’s contribution before due date is a continuing offence so a fresh period of limitation shall begin to run at every moment of time during which the offence continues.

7.7 Extension of period of limitation [Section 473]

Despite all the above provisions, any Court can take cognizance of an offence even after the expiry of the period of limitation, if it is satisfied on the facts of and in the circumstances of the case –

(a) that the delay has been properly explained or

(b) that it is necessary to do so in the interest of justice.

8. Anticipatory Bail & Summary Trials

8.1 Anticipatory Bail

Section 438 of the Code of Criminal Procedure, 1973 contains a provision enabling Courts to direct the release of a person on bail prior to his arrest, which is commonly known as anticipatory bail.

When granting anticipatory bail, the Court must strike a balance, so that, on the one hand, a person is protected from unnecessary humiliation, and on the other, the faith of the public and of the society in the administration of justice is not shaken.

8.2 Direction for grant of bail to person apprehending arrest [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 to the Court of Session for anticipatory bail. If such a bail is granted, it may include such conditions as the Court thinks fit, including the following.

(1) A condition that the person should make himself available for interrogation by a police officer as and when required.

(2) A condition that the person shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case, so as to dissuade him from disclosing such facts to the Court, or to any police officer.

(3) A condition that the person shall not leave India without the previous permission of the Court.

(4) Such other condition imposed u/s 437(3) as if the bail were granted under that section.

Example: Raman moves an application for anticipatory bail before a Judicial Magistrate of First Class of the area, for bailable offence. Can A get anticipatory bail? 

As per Section 438 of the Code of Criminal Procedure, 1973, anticipatory bail can be granted in a non-bailable offence only by the High Court or the Court of Session. Judicial Magistrate of First Class has got no power to grant anticipatory bail. Further anticipatory bail cannot be granted for bailable offence.

8.3 Points of Distinction between Bail & Anticipatory Bail

Points Bail Anticipatory Bail
Meaning Bail means release of arrested person on certain conditions and on furnishing of security. Anticipatory bail means release of a person on bail prior to his arrest.
Offence Bail is granted for bailable offence. Anticipatory bail is granted for non bailable offence.
When granted Bail is granted by the Court when the accused appears or is brought before the Court. Anticipatory bail is granted in anticipation of a person being arrested.
Who grants Bail is granted by the officer of police station, Magistrate, Session Judge or High Court. Anticipatory bail is granted by the Session Judge or the High Court.

8.4 Summary Trial  [Section 260]

Meaning: A summary trial implies speedy disposal. A summary case is thus which can be tried and disposed at once. Thus, the summary procedure is not applicable contentious and complicated case which requires a full and lengthy inquiry. Generally, it will apply to such offences not punishable with imprisonment for a term exceeding two years.

Procedure: In a summary trial, all cases should be tried by the summons procedure whether the case is a summons case or warrant case.

Offences that can be dealt with summary trial:

(1) Offences not punishable with death, imprisonment for life, or imprisonment for a term exceeding 2 years.

(2) Theft of value of property up to 2,000 u/ss 379, 380, 381 of IPC.

(3) Assisting in the concealment or disposal of stolen property up to 2,000 u/s 414 of IPC.

(4) Receiving or retaining stolen property up to 2,000 under Section 411 of IPC.

(5) Offences u/ss 454 & 456 of IPC. (Lurking house, trespass etc.)

(6) In suit with intend to provoke breach of peace u/s 504 and Criminal Intimidation u/s 506 of IPC.

(7) Abetment of any foregoing offences.

(8) An attempt to commit any forgoing offence, when such attempt also is an offence.

(9) Any offence constituted by an act in respect of which a compliant may be made u/s 20 of the Cattle Trespass Act, 1871.

Example: A commits the offence of theft by stealing property of B worth 5,000. Can this offence be tried summarily by the Chief Judicial Magistrate?        

No, the offence of theft of a property worth ` 5,000 cannot be tried summarily by the Chief Judicial Magistrate.

Offence of theft can be tried summarily, where the value of property stolen does not exceed ` 2,000.

8.5 Procedure for summary trials [Section 262]

In all summary trials the summons case procedure should be followed irrespective of the nature of the case i.e. whether it is a summons case or a warrant case.

No sentence of imprisonment for a term exceeding 3 months shall be passed in any conviction in summary trials. No limit for fine.

Example: Sohan is tried summarily by the Chief Judicial Magistrate on the charge of committing theft and is sentenced to undergo rigorous imprisonment for 6 months. Sohan wants to challenge this decision. Can he do so? Discuss.

According to Section 262 of the Code of Criminal Procedure, 1973, no sentence of imprisonment for a term exceeding 3 months can be passed in case of conviction in a summary trial. Thus, the sentence of 6 months imprisonment could not have been legally awarded in the given case by Chief Judicial Magistrate. Sohan should, therefore, file an appeal before the appropriate Court challenging the quantum of punishment.

8.6 Judgment in summary trials

In every case tried summarily in which the accused does not plead guilty, the Magistrate shall record the substance of the evidence and a judgment containing a brief statement of the reason for the finding. The concerned Magistrate must sign such record and judgment.

8.7 Records in summary trial

The Magistrate shall enter in the prescribed form the following particulars in every case tried summarily:

    • Serial number of the case.
    • Date of the commission of the offence.
    • Date of the report or complaint.
    • Name of the complainant, if any.
    • Name, parentage and residence of the accused.
    • Offence complained of and the offence proved, and the value of the property in respect of which the offence has been committed.
    • Plea of the accused and his examination, if any.
    • Findings.
    • Sentence or other final order.
    • Date on which proceedings terminated.

Also Read:
Police has no authority to check GST Invoice, E-Way bill etc.

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