[FAQs] on Code of Criminal Procedure (CrPC) – An Ultimate Guide
- Blog|Other Laws|
- 21 Min Read
- By Taxmann
- Last Updated on 17 July, 2023
Table of Contents
- Power of Courts to Pass Sentence
- Summon & Warrant
- Security for Peace & Good Behaviour
- Maintenance of Public Order and Tranquility
- Preventive Actions of Police
- Information to Police & Their Power to Investigate
- Power of Magistrate
- Limitation Period for Taking Cognizance
- Anticipatory Bail & Summary Trial
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FAQ 1. What is ‘Complaint’ under Criminal Procedure Code, 1973?
Complaint [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 it does not include a police report.
However, a report made by the 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 making the report as a complainant.
FAQ 2. What is the difference between Warrant Case & Summons Case?
Following are main points of difference between warrant case & summons case.
|Points||Warrant Case||Summons Case|
|Meaning||Warrant-case means a case relating to an offence punishable with –
||Summons case means relating to an offence, and not being a warrant-case.|
|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|Consent for withdrawn||With the consent of the Court, the complainant can withdraw the remaining charges if the accused is convicted on one or more charges.||With the permission of the Magistrate, the complainant can withdraw his complaint.|
|Conversion||A warrant case cannot be converted into a summons case.||A summons case can be converted into a warrant case.|
FAQ 3. What is the difference between Bailable offence & non-bailable offence?
Following are the main points of difference between bailable & 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||The First Schedule to the Code of Criminal Procedure gives a list of bailable offence, as for instance:
||The examples of non-bailable offence are:
|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.|
FAQ 4. What is the difference between ‘Pleader’ and ‘Public Prosecutor’?
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.
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.
FAQ 5. What is the difference between ‘investigation’ and ‘Inquiry’ under the Code of Criminal Procedure, 1973?
Following are main points of distinction between 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||The 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.|
FAQ 6. What is the difference between Cognizable Offence & Non-Cognizable Offence?
Following are the main points of difference between cognizable & non-cognizable offences:
|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. Power of Courts to Pass Sentence
FAQ 7. What is the power of the court to try offences under Indian Penal Code and any other law as laid down in Criminal Procedure Code, 1973?
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||
|Magistrate of Second Class||
|Chief Metropolitan Magistrate||Shall have all the powers of Chief Judicial Magistrate, Magistrate of First Class and Magistrate of Second Class.|
FAQ 8. 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 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
As per Section 30 of the Code of Criminal Procedure, 1973, 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 months × 1/4 = 9 months]
The accused is advised to challenge the validity of the sentence accordingly.
FAQ 9. X is charged for murder of Y. The charge sheet is filed in the Court of Chief Judicial Magistrate, who passed an order of sentence of imprisonment for life. X engages you as an advocate. Advise the course of action to Angad giving reasons.
According to Section 29 of the Code of Criminal Procedure, 1973, Chief Judicial Magistrate is competent to pass sentence for term upto 7 years imprisonment. Hence, X can file appeal against the order of the Chief Judicial Magistrate.
FAQ 10. Section 41 of the Criminal Procedure Code, 1973 enumerates the different categories of cases in which a police officer may arrest a person without an order from a Magistrate and without a warrant. What are the five Categories of such cases?
As per Section 41 the Code of Criminal Procedure, 1973, 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 u/s 356(5).
(i) For whose arrest any requisition, whether written or oral, has been received from another police officer. However, 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.
3. Summon & Warrant
FAQ 11. What are the duties of a police officer while making an arrest under section 41B and the right of an arrested person under section 41D of Criminal Procedure Code, 1973 ?
Section 41B talks about the procedure of arrest and duties of the officer making arrest. According to it every police officer while making an arrest shall—
(a) bear an accurate, visible and clear identification of his name which will facilitate easy identification.
(b) prepare a memorandum of arrest which shall be —
(i) attested by at least one witness, who is a member of the family of the person arrested or a respectable member of the locality where the arrest is made.
(ii) countersigned by the person arrested; and
(c) inform the person arrested, unless the memorandum is attested by a member of his family, that he has a right to have a relative or a friend named by him to be informed of his arrest.
According to section 41D when any person is arrested and interrogated by the police, he shall be entitled to meet an advocate of his choice during interrogation, though not throughout interrogation.
FAQ 12. What is the difference between Summons and warrant of arrest?
Following are main points of difference between summons and 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||The 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.|
FAQ 13. What are the requisites of a ‘warrant of arrest’? What is the time limit within which the police officer should bring the person arrested before the court?
Warrant of Arrest
(i) Every warrant of arrest issued by a Court under this Code shall be in writing, signed by the presiding officer of such Court, and shall bear the seal of the Court.
(ii) It is an order given to the police officer or the authorised person to arrest the person.
(iii) Such warrant shall remain in force until it is cancelled by the Court which issued it, or until it is executed. (Section 70)
(iv) The form of warrant of arrest is Form No. 2 of the Second Schedule.
(v) The requisites of a warrant are as follows:
(a) It must be in writing;
(b) It must bear the name and designation of the person who is to execute it;
(c) It must give full name and description of the person to be arrested;
(d) It must state the offence charged;
(e) It must be signed by the presiding officer; and
(f) It must be sealed.
(vi) Person accused shall be presented before the court within 24 hours of his arrest excluding the journey time from one place of arrest to magistrate court.
FAQ 13A. What are the remedies under Criminal Procedure Code, where a warrant remains unexecuted?
Where a warrant remains unexecuted, the Code of Procedure Code, 1973 provides for two remedies:
(i) If a Court has reason to believe 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, the Court may publish 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. (Section 82).
(ii) The Court issuing a proclamation under section 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.
FAQ 14. What are the cases in which a Search Warrant can be issued under Section 93 in the Criminal Procedure Code, 1973?
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].
When search-warrant may be issued [Section 93]: A search warrant can be issued in the following three cases:
- 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.
- Where document or thing is not known to the Court to be in the possession of any person.
- 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.
FAQ 15. What are the procedure given in Criminal Procedure Code, 1973 for publication of proclamation regarding absconding persons?
Publication of Proclamation
If a Court has reason to believe 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, the Court may publish 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. (Section 82).
4. Security for Peace & Good Behaviour
FAQ 16. What are the grounds under which the Court at the time of passing sentence on accused person, order him to execute a bond for keeping peace to such period and when such a bond so executed shall become void?
According to Section 106 when a Court of Session or Court of a Magistrate of first class convicts a person of any of the offences specified in sub-section (2) 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 three years, as it thinks fit.
The offences specified under sub-section (2) are as follows:
(a) any offence punishable under Chapter VIII of the Indian 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 caused, or was intended or known to be likely to cause a breach of the peace.
However, if the conviction is set aside on appeal or otherwise, the bond so executed shall become void.
FAQ 16A. 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:
- Commit a breach of offence.
- Disturb the public tranquility.
- 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. In the present problem, time-period is 3 years, as such, requisition order cannot be made.
FAQ 17. What is the power to issue an order in urgent cases of nuisance or apprehended danger under section 144 of the Criminal Procedure Code, 1973?
(i) As per Section 144 of the Code where in the opinion of a District Magistrate, a Sub-divisional Magistrate or any other Executive Magistrate specially empowered by the State Government in this behalf, there is sufficient ground for proceeding under this Section and immediate prevention or speedy remedy is desirable.
(ii) 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.
(iii) An order under this Section can remain in force for two months, and may be extended further for a period not exceeding six months by the State Government if it considers necessary.
FAQ 18. What are the power under section 144 of the Code of Criminal Procedure, 1973 to issue order in urgent cases of nuisance or apprehended danger?
Power to issue order in urgent cases of nuisance or apprehended danger
As per section 144 of the Code where in the opinion of a District Magistrate, a Sub-Divisional Magistrate or any other Executive Magistrate specially empowered by the State Government in this behalf, there is sufficient ground for proceeding under this section and immediate prevention or speedy remedy is desirable, in such cases the Magistrate may by a written order stating the material facts of the case and served in the manner provided by section 134, 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 a riot, 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 six months by the State Government if it considers necessary.
5. Maintenance of Public Order and Tranquility
FAQ 19. A tenant had abandoned the disputed house before his death but possession of the said house was not handed over to the landlord. The heirs of the deceased tenant had not paid rent but they had locked the house. The Sub-Divisional Magistrate issued an order under Section 144 of the Code of Criminal Procedure, 1973 to unlock the house. The heirs of the deceased tenant resist the order of the Sub-Divisional Magistrate. Will they succeed? What will be your answer, if the said house is in a dilapidated condition and is likely to endanger human life, health or safety?
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. Magistrate may direct any person to abstain from a certain act, to prevent, obstruction, annoyance of injury or danger to human life, health or safety or a disturbance of the public tranquility, or an affray.
Hence, in this case the Sub-Divisional Magistrate can pass order only if the house is in such a dilapidated condition as to be potential danger to human life, and not otherwise. The heirs will succeed in resisting the order only if the house is not in danger to public.
FAQ 20. What are the conditional order for removal of nuisance issued by executive magistrate under section 133 of Criminal Procedure Code, 1973?
Conditional order for removal of nuisance (Section 133)
The 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.
FAQ 21. The Sub-Divisional Magistrate at the instance of officer in-charge of police station passed an order under Section 144 of the Code of Criminal Procedure, 1973 by which petitioner’s Puja Committee and others were prohibited from taking out immersion procession of statue of Goddess Durga and passing in front of two Mosques in the village concerned playing music on Vijayadashmi day. Members of Hindu community agitate the order as such order amounts to interference in their legal exercise of customary and religious right. Whether the order passed by the Sub Divisional Magistrate is valid?
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. Magistrate may direct any person to abstain from a certain act, to prevent, obstruction, annoyance of injury or danger to human life, health or safety or a disturbance of the public tranquility, or an affray.
In this case, The Sub-Divisional Magistrate issues an order by which petitioner’s Puja Committee and others were prohibited from taking out immersion procession of statue of Goddess Durga and passing in front of two mosques in the village. This order is valid as it is an imminent danger to the peace and tranquility. Moveover, taking out the procession itself is not to be barred; it should be ordered that the procession should not cause any harm or disturbance to public, especially public coming to the mosques.
6. Preventive Actions of Police
FAQ 22. Shyam, a police officer comes to know from reliable sources that four persons are staying in a house and planning to kidnap and murder Rajan. They are equipped with automatic weapons. The police officer apprehends that they will commit the crime at any moment. He directly goes to that house and, without any warrant or order from the Metropolitan Magistrate, arrests all the four persons along with weapons in their possession. Is the arrest of all the four persons valid?
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.
As per facts given in case, some persons are planning to kidnap and murder Rajan which is cognizance offence and hence police officer can arrest such persons without any warrant or order from the Magistrate.
7. Information to Police & Their Power to Investigate
FAQ 23. What are the provisions relating to information to the police and their power to investigate in cognizable and non-cognizable cases under the Criminal Procedure Code, 1973?
Information in cognizable cases [Section 154]:
- Every information relating to the commission of a cognizable offence given shall be reduced to writing by officer in charge of a police station. It shall be read over to the informants. It shall be signed by the person giving it. The substance of such information shall be entered in a prescribe book.
- A copy of the information shall be given forthwith, free of cost, to the informant.
- 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 in the prescribed manner.
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.
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.
FAQ 24. 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.
FAQ 25. A first information report is lodged against Krook for committing one cognizable and three non-cognizable offences. Can the police conduct investigation in respect of all the four offences without an order from the Magistrate?
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. 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.
FAQ 26. What is the difference between ‘Complaint’ and ‘FIR’?
Following are the main points of difference between complaint and FIR:
|Points||Complaint||First Information Report|
|Meaning||A complaint is an allegation made orally or in writing to a Magistrate.||The 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 complaint can be given only by a person authorized under law under certain circumstances.||Any person can give the first information.|
8. Power of Magistrate
FAQ 27. When can the Magistrate take cognizance of offences?
As per Section 190 of the Code Criminal Procedure, 1973, 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.
9. Limitation Period for Taking Cognizance
FAQ 28. 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?
In the given problem, 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.
10. Anticipatory Bail & Summary Trial
FAQ 29. 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.
FAQ 30. 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?
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.
FAQ 31. What are the summary trial by a Magistrate under the Criminal Procedure Code, 1973?
Section 260 to Section 265 of the Criminal Procedure Code, 1973 deals with the various provisions relating to summary trials.
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:
- Offences not punishable with death, imprisonment for life, or imprisonment for a term exceeding 2 years.
- Theft of value of property up to ` 2,000 u/ss 379, 380, 381 of IPC, 1860.
- Assisting in the concealment or disposal of stolen property up to ` 2,000 u/s 414 of IPC.
- Receiving or retaining stolen property up to ` 2,000 under Section 411 of IPC.
- Offences under Sections 454 & 456 of IPC (lurking house, trespass etc.).
- In suit with intend to provoke breach of peace under Section 504 and Criminal Intimidation u/s 506 of IPC.
- Abetment of any foregoing offences.
- An attempt to commit any forgoing offence, when such attempt also is an offence.
- Any offence constituted by an act in respect of which a complaint may be made u/s 20 of the Cattle Trespass Act, 1871.
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.
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.
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Taxmann Publications has a dedicated in-house Research & Editorial Team. This team consists of a team of Chartered Accountants, Company Secretaries, and Lawyers. This team works under the guidance and supervision of editor-in-chief Mr Rakesh Bhargava.
The Research and Editorial Team is responsible for developing reliable and accurate content for the readers. The team follows the six-sigma approach to achieve the benchmark of zero error in its publications and research platforms. The team ensures that the following publication guidelines are thoroughly followed while developing the content:
- The statutory material is obtained only from the authorized and reliable sources
- All the latest developments in the judicial and legislative fields are covered
- Prepare the analytical write-ups on current, controversial, and important issues to help the readers to understand the concept and its implications
- Every content published by Taxmann is complete, accurate and lucid
- All evidence-based statements are supported with proper reference to Section, Circular No., Notification No. or citations
- The golden rules of grammar, style and consistency are thoroughly followed
- Font and size that’s easy to read and remain consistent across all imprint and digital publications are applied