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THE BHARATIYA NAGARIK SURAKSHA SANHITA, 2023

CHAPTER V
ARREST OF PERSONS

S. 35. When police may arrest without warrant. 1) Any police officer
may without an order from a Magistrate and without a palash Chandra Bag, arres
person -
(a) Who commits, in the presence of a police officer, a cognizable offence;
or
(b) against whom a reasonable complaint has been made, or credible
information has been received, or a reasonable suspicion exists that he
has committed a cognizable offence punishable with imprisonment for
a term which may be less than seven years or which may extend to
seven years whether with or without fine, if the following conditions are
satisfied, namely:
(i) The police officer has reason to believe on the basis of such
complaint, information, or suspicion that such person has
committed the said offence;
(ii) The police officer is satisfied that such arrest is necessary
(a) to prevent such person from committing any fur there offence;
or
(b) for proper investigation of the offence: or
(c) to prevent such person from causing the evidence of the
offence to disappear or tampering with sat evidence in any
manner; or
(d) to prevent such person from making 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
the police officer; or
(e) as unless such person is arrested, his presence in the Court
whenever required cannot be ensured and the police officer
shall record while making such arrest, his reasons in writing:
Provided that a police officer shall, in all cases where the arrest of a
person is not required under the provisions of this sub-section, record the
reasons in writing for not making the arrest; or
(c) against whom credible information has been received that he has
committed a cognizable offence punishable with imprisonment for a
 term which may extend to more than seven years whether with or
without fine or with death sentence and the police officer has reason to
believe on the basis of that information that such person has com
mitted the said offence; or
(d) who has been proclaimed as an offender either under this Sanhita or
by order of the State Government; or
(e) in whose possession anything is found which may reason ably be
suspected to be stolen property and who may reasonably be suspected
of having committed an offence with reference to such thing; or
(f) Who obstructs a police officer while in the execution of his duty, or who
has escaped, or attempts to escape, from la ful custody; or
(g) Who is reasonably suspected of being a deserter from any of the
Armed Forces of the Union; or
(h) who has been concerned in, or against whom a reasonable complaint
has been made, or credible information has been received, or a
reasonable suspicion exists, of his having been concerned in, any act
committed at any place out of India which, if committed in India, would
have been punishable as an offence, and for which he is, under any
law relating to extradition, or otherwise, liable to be apprehended or
detained in custody in India; or
(i) who, being a released convict, commits a breach of any rule made
under sub-section (5) of section 394; or
(j) For whose arrest any requisition, whether written or oral, has been
received from another police officer, provided that offence requisition or
specifies the person to be arrested and the other cause for which the
arrest is to be made and it appears therefrom that the person might
lawfully be arrested without a warrant by the officer who issued the
requisition.

Remarks

 Where such a notice is issued to any person, it shall be the duty of

that person to comply with the terms of the notice.
 Where such person complies and continues to comply with the
notice, he shall not be arrested in respect of the offence referred to in
the notice unless, for reasons to be recorded, the police officer is to
the opinion that he ought to be arrested.
 Where such person, at any time, fails to comply with the terms ne
notice or is unwilling to identify himself, the police officer may, subject
to such orders as may have been passed by a competent Court in
this behalf arrest him for the offence mentioned in the notice.
 No arrest shall be made without prior permission of an officer not
below the rank of Deputy Superintendent of Police in case of an
offence which is punishable for imprisonment of less than three years
and such person is infirm or is above sixty years of age.
 All the State Governments to instruct its police officers not to
automatically arrest when a case under sec. 498-A IPC [now
sections 85 and 86] is registered but to satisfy themselves about the
necessity for arrest under the parameters laid down above flowing
from sec. 41 CrPO (now section 35);
 All police officers be provided with a check list containing specified
sub-clauses under sec. 41(1)(b)(ii);
 The police officer shall forward the check list duly filled and furnish
the reasons and materials which necessitated the arrest, while for
Warding/ producing the accused before the Magistrate for further
detention.
1. The Magistrate while authorizing detention of the accused shall
peruse the report furnished by the police officer in terms aforesaid
and only after recording its satisfaction, the Magistrate will authorize
detention;
2. The decision not to arrest an accused, be forwarded to the
Magistrate within two weeks from the date of the institution of the
case with a copy to the Magistrate which may be extended by the
Superintendent of Police of the district for the reasons to be recorded
in writing;
3. Notice of appearance in terms of sec. 41-A CrPC [now section
35(3) to 35(6)] be served on the accused within two weeks from the
date of institution of the case, which may be extended by the
Superintendent of Police of the district for the reasons to be recorded
in writing;
4. Failure to comply with the directions aforesaid shall apart from
rendering the police officers concerned liable for departmental action,
they shall also be liable to be punished for contempt of court to be
instituted before the High Court having territorial jurisdiction.
5. Authorizing detention without recording reasons as aforesaid by the
Judicial Magistrate concerned shall be liable for departmental action
by the appropriate High Court.

6. When arrest is not mandatory. Section 41 (now section 35] under

Chapter V of the Code deals with the arrest of person. Even for a
cognizable offence, an arrest is not mandatory as can be seen from
the mandate of his provision. If the officer is satisfied that a person
has Committed a cognizable offence, punishable with imprisonment
for a term, which may be less than seven years, or which may extend
to the said period, with or without fine, arrest could only follow when
he is satisfied that there is a reason to believe or Suspect, that the
said person has committed an offence, and there is a necessary for
an arrest. Such necessity is drawn to prevent the committing of any
further offence, for a proper investigation, and to prevent him/her
from either disappearing or tampering with the evidence. He/she can
also be arrested to prevent such person from making any
inducement, threat, or promise to any person according to the facts,
so as to dissuade him from disclosing said facts either to the court or
to the police officer. One more ground on which an arrest may be
necessary is when his/her presence is required after arrest for
production before the court and the same cannot be assured -
Satender Kumar Antil v CBI (2022)10 SCC 51.

7. Power of police to arrest: Guidelines under section 41 must be

followed. - Police officers are vested with the power to arrest
individuals at various stages of the criminal justice process, including
during the course of investigation. However, this power is not
unbridled. In terms of sec. 41(1) (b) (ii), the police officer in question
must be satisfied that such arrest is necessary to prevent the person
sought to be arrested from committing any further offence for proper
investigation of the offence, to prevent the arrestee from tampering
with or destroying evidence, to prevent them from influencing or
intimidating potential witnesses, or when it is not possible to ensure
their presence in court without arresting them. Police officers have a
duty to apply their mind to the case before them and ensure that the
condition (s) in sec. 41 (now section 35) are met before they conduct
 an arrest. The guidelines laid down in Arnesh Kumar v State of Bihar
AIR 2014 SC 2756, must be followed – Mohammed Zubair v State
of NCT Cr LJ 2022 3665 (SC) (3 - Judge Bench).

8. Arrest in non-cognizable offence. – Sub-section (2) of sec. 41

[now Section 35 (1) and (2)] unequivocally lays down that no
person concerned in a non-cognizable offence shall be arrested
except under a warrant or under an order of the Magistrate. The
power under sub-sec. (1) can be exercised by arresting a person
without any order from the Magistrate and without a warrant.
However, in case where non-cognizable offence is alleged, the
officer can exercise the power under sub-sec. (1) to arrest provided
either there is a warrant issued or an order to that effect is passed by
the Magistrate. In this case. Admittedly, there was neither a warrant
issued nor an order passed by the Magistrate permitting arrest of the
applicants. The court, therefore has no hesitation in coming to the
conclusion that the arrest of the applicants by exercising the power
under clause (d) of sub-sec. (1) of sec. 41 [now section 35(1) and
(2)] of the CrPC was completely illegal - Latesh Kumar v State of
Maharashtra 2018 Cr LJ 617 (Bom).

9. When arrest of an accused is inevitable. - In the normal and

ordinary course the police should always avoid arresting a person
and sending him to jail, if it is possible for the police to complete the
investigation without his arrest and if every kind of cooperation is
provided by the accused to the investigating officer in completing the
investigation. It is only in cases of utmost necessity, where the
investigation cannot be completed without arresting the person, for
instance, a person may be required for recovery of incriminating
articles or weapon of offence or for eliciting some information or clue
as to his accomplices or any circumstantial evidence, that his arrest
may be necessary. Such an arrest may also be necessary if the
investigating officer concerned or officer in charge of the police
station thinks that presence of the accused will be difficult to procure
because of grave and serious nature of crime as the possibility of his
absconding or disobeying the process or fleeing from justice cannot
be ruled out Siddharth v State of U.P. (2022)1 SCC 676.
10. Arrest of a person-object and purpose. - It is evident that a
person accused of an offence punishable with imprisonment for a
term which may be less than seven years or which may extend to
seven years with or without fine, cannot be arrested by the police
officer only on his satisfaction that such per-son had committed the
offence punishable as aforesaid. A police officer be-fore arrest, in
such cases has to be further satisfied that such arrest is necessary to
prevent such person from committing any further offence; or for
proper investigation of the case; or to prevent the accused from
causing the evidence of the offence to disappear; or tampering with
such evidence in any manner, or to prevent such person from
making any inducement, threat or promise to a witness so as to
dissuade him from disclosing such facts to the court or the police
officer, or unless such accused person is arrested, his presence in
the court whenever required cannot be ensured. These are the
conclusions, which one may reach based on facts.

In pith and core, the police officer before arrest must put a question
to himself, why arrest? Is it really required? What purpose it will
serve? What object it will achieve? It is only after these questions are
addressed and one or the other conditions as enumerated above is
satisfied, the power of arrest needs to be exercised. In fine, before
arrest first the police officers should have reason to believe on the
basis of information and material that the ac cussed has committed
the offence. Apart from this, the police officer has to be satisfied
further that the arrest is necessary for one or the more purposes
envisaged by sub-clauses (a) to (e) of clause (1) of sec. 41 CrPC -
Arnesh Kumar v State of Bihar (2014)8 SCC 273: (2014)3 SCC (Cr)
449.

11. Illegality and irregularity in arrest: Effect. - Long back Privy

Council in Prabhu v King Emperor AIR 1944 PC 73 had ruled that
irregularity and illegality of arrest would not affect the culpability of
the offence if the same is proved by cogent evidence. But the apex
court in Kumar v State (2018) 3 SCC (C) 245: (2018)7 SCC 536,
having regard to the factual matrix of the case, especially in view of
suspicious nature of investigation, has held otherwise. And observed
 that "such irregularity should be shown deference as the
investigating authorities are responsible for suppression of facts”.

The apex court concluded as under:

"The criminal justice must be above reproach. It is irrelevant whether
the falsity lie in the statement of witnesses or the guilt of the
accused. The investigative authority has a responsibility to
investigate in a fair manner and elicit truth. At the cost of repetition, I
must remind the authorities concerned to take up the investigation in
a neutral manner, without having regard to the ultimate result. In this
case at hand, we cannot close our eyes to what has happened,
regardless of guilt or the asserted persuasiveness of the evidence,
the aspect wherein the police has actively connived to suppress the
facts, cannot be ignored or overlooked."

12. Complaints of human rights pre and after arrest. - "A

realistic approach should be made in this direction. The law of arrest
is one of balancing individual rights, liberties and privileges, on the
one hand, and individual duties, obligations and responsibilities on
the other; of weighing and balancing the rights, liberties and
privileges of the single individual and those of individuals collectively;
or simply deciding what is wanted and where to put the weight and
the emphasis; of deciding which comes first-the criminal or society,
the law violator or the law abider...." - Joginder Kumar v State of U.P.
(1994) 4 SCC 260: 1994 SCC (Cri) 1172.

13. A person accused of an offence punishable for a term of

seven years arrest procedure. - A person accused of an offence
punishable with imprisonment for a term which may be less than
seven years or which may extend to seven years with or without fine,
cannot be arrested by the police officer only on his satisfaction that
such person had committed the offence punishable as aforesaid. A
police officer before arrest, in such cases has to be further satisfied
that such arrest is necessary to prevent such person from committing
any further offence, or for proper investigation of the case; or to
prevent the accused from causing the evidence of the offence to
disappear, or tampering with such evidence in any manner; or to
prevent such person from making any inducement, threat or promise
 to a witness so as to dissuade him from disclosing such facts to the
court or the police officer, or unless such accused person is arrested,
his presence in the court whenever required can-not be ensured.
These are the conclusions, which one may reach based on facts
Social Action Forum v Union of India (2018)10 SCC 443 (3-Judge
Bench).

14. Duties of police officer before arrest. - Before arrest first the
police of ficers should have reason to believe on the basis of
information and material that the accused has committed the offence.
Apart from this, the police officer has to be satisfied further that the
arrest is necessary for one or the more purposes envisaged by sub-
clauses (a) to (e) of clause (1) of sec. 41 CrPC [now section 35(1)]-
Social Action Forum v Union of India (2018)10 SCC 443 (3-Judge
Bench).

15. Before making arrest of a person, the police officer must

record his opinion and reasons. - If the police officer is satisfied
that certain conditions are satisfied, then he, in a cognizable offence
punishable with imprisonment for a term which may be less than
seven years or which may extend to 7 years with or without fine,
arrest a person, if he has reason to believe on the basis of such
complaint, information or suspicion that such person has committed
the offence. Secondly, it is further required that the police officer
must be satisfied before such arrest is made and that it is necessary
to arrest him (a) to prevent such person from committing any further
offence; or (b) for proper investigation of the offence; or (c) to prevent
such person from causing the evidence of the offence to disappear
or tampering with such evidence in any manner, or (d) to prevent
such person from making 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 the police officer; or (e)
as unless such person is arrested, his presence in the Court
whenever required cannot be ensured. Before making arrest, the
police officer shall record while making arrest his reasons in writing -
Bata Krushna v State of Orissa 2016 Cr L 1401 (Ori); see also Dipti
Ranjan Parida alias Dilu v State of Orissa 2008 Cri LJ 4651 (Ori).
 The Supreme Court in Arnesh Kumar v State of Bihar AIR 2014
SC 2756 has directed that the Investigating Officer before making
arrest of a person, must record his opinion. He is also required to
give the reasons for which he arrived at such conclusion for arresting
the accused. On production of the accused before Magistrate, the
Magistrate is also required to examine whether the reasons given by
the Investigation Officer is justified on the material placed before him
by the 1.0. Moreover, simple opinion is not sufficient. It must be
supported by materials on record giving rise to such opinion. To that
extent, the learned Magistrate is required to make a judicial enquiry.
Then, the Magistrate can only authorize detention of the accused
arrested.
The provision mandates the police officer to record his reasons
in writing while making the arrest. Thus, a police officer is duty-bound
to record the reasons for arrest in writing. Similarly, the police officer
shall record reasons when he/she chooses not to arrest. There is no
requirement of the aforesaid procedure when the offence alleged is
more than seven years, among other reasons.
The consequence of non-compliance with sec. 41 [now
section 35(1) and (2)] shall certainly inure to the benefit of the
person suspected of the offence. Resultantly, while considering the
application for enlargement on bail, courts will have to satisfy
themselves on the due compliance of this provision. Any non-
compliance would entitle the accused to a grant of bail - Satender
Kumar Antil v CBI (2022)10 SCC 51.

16. Supreme Court's Guidelines on Arrest. - In D.K. Basu v

State AIR 1997 SC 610, where the law relating to arrest has been
dealt with more exhaustively and directions given therein have been
ordered to be followed mandatorily. The relevant directions in this
regard read as follows: "We, therefore, consider it appropriate to
issue the following requirements to be followed in all cases of arrest
or detention, till legal provisions are made in that behalf, as
preventive measures:

1. The police personnel carrying out the arrest and handling the
interrogation of the arrestee should bear accurate, visible and clear
identification and name tags with their designations. The particulars
 of all such police personnel who handle interrogation of the arrestee
must be recorded in a register.
2. That the police officer carrying out the arrest of the arrestee shall
prepare a memo of arrest at the time of arrest and such memo shall
be attested by at least one witness, who may be either a member of
the family of the arrestee or a respectable person of the locality from
where the arrest is made. It shall also be countersigned by the
arrestee and shall contain the time and date of arrest.
3. A person who has been arrested or detained and is being held in
custody in a police station or interrogation center or other lock-up,
shall be en-led to have one friend or relative or other person known
to him or having interest in his welfare being informed, as soon as
practicable, that he has been arrested and is being detained at the
particular place unless the attesting witness of the memo of arrest is
himself such a friend or a relative of the arrestee.
4. The time, place of arrest and venue of custody of an arrestee must
be notified by the police where the next friend or relative of the
arrestee lives outside the district or town through the Legal Aid
Organization in the District and the police station of the area
concerned telegraphically within a period of 8 to 12 hours after the
arrest.
5. The person arrested must be made aware of this right to have
someone informed of his arrest or detention as soon as he is put
under arrest or is detained.
6. An entry must be made in the diary at the place of detention
regarding the arrest of the person which shall also disclose the name
of the next friend of the person who has been informed of the arrest
and the names and particulars of the police officials in whose
custody the arrestee is.
7. The arrestee should, where he so requests, be also examined at the
time of his arrest and major and minor injuries, if any, present on
his/her body, must be recorded at that time. The "Inspection Memo"
must be signed both by the arrestee and the police officer affecting
the arrest and its copy provided to the arrestee.
8. The arrestee should be subjected to medical examination every 48
hours during his detention in custody by a trained doctor on the panel
of approved doctors appointed by Director, Health Services of the
 concerned State or Union Territory. Director, Health Services should
prepare such a panel for all Tehsils and Districts as well.
9. Copies of all the documents including the memo of arrest, referred to
above, should be sent to the llaqa Magistrate for his record.
10. The arrestee may be permitted to meet his lawyer during
interrogation, though not throughout the interrogation.
11. A police control room should be provided at all district and State
head-quarters, where information regarding the arrest and the place
of custody of the arrestee shall be communicated by the officer
causing the arrest, within 12 hours of effecting the arrest and at the
police control room it should be displayed on a conspicuous police
board.
Failure to comply with the requirements hereinabove mentioned shall,
apart from rendering the concerned official liable for departmental action,
also render him liable to be punished for contempt of court and the
proceedings for contempt of court may be instituted in any High Court of
the country, having territorial jurisdiction over the matter."
These requirements are in addition to the constitutional and statutory
safe guards and do not detract from various other directions given by the
courts from time to time in connection with the safeguarding of the rights
and dignity of the arrestee,

Supreme Court Guidelines before making arrest under IPC [now

sections 85, 86) and Dowry Prohibition Act. - (1) All the State
Governments to instruct its police officers not to automatically arrest when
a case under section 498A IPC is registered but to satisfy themselves
about the necessity for arrest under the parameters flowing from sec. 41
CrPC [now section 35];
(2) All police officers be provided with a check list containing specified sub
clauses under sec. 41(1)(b)(ii) [now section 35(1)(b)(ii)];
(3) The police officer shall forward the check list duly filled and furnish the
reasons and materials which necessitated the arrest, while
forwarding/producing the accused before the Magistrate for further
detention;
(4) The Magistrate while authorizing detention of the accused shall peruse
the report furnished by the police officer in terms aforesaid and only after
recording its satisfaction, the Magistrate will authorize detention;
5. The decision not to arrest an accused is forwarded to the Magistrate
within two weeks from the date of the institution of the case with a copy to
the Magistrate which may be extended by the Superintendent of Police of
the district for the reasons to be recorded in writing;
6. Notice of appearance in terms of section 41A CrPC [now section 35(3)
to (6)] be served on the accused within two weeks from the date of
institution of the case, which may be extended by the Superintendent of
Police of the district for the reasons to be recorded in writing;
(7) Failure to comply with the directions aforesaid shall apart from
rendering the police officers concerned liable for departmental action, they
shall also be liable to be punished for contempt of court to be instituted
before the Hi Court having territorial jurisdiction;
(8) Authorizing detention without recording reasons as aforesaid by the
Judicial Magistrate concerned shall be liable for departmental action by
the appropriate High Court.
The Supreme Court hastens to add that the directions aforesaid shall only
apply to the cases under sec. 498-A IPC [now sections 85, 86] or sec of
the Dowry Prohibition Act, the case in hand, but also such cases where
offence is punishable with imprisonment for a term which may be less than
seven years or which may extend to seven years, whether with or without -
Arnesh Kumar v State of Bihar (2014)8 SCC 273.

Arrest, meaning of: Arrest without warrant when permissible. - The

word "arrest" is derived from the French word 'Arreter' meaning 'to stop or
stay' and signifies a restraint of the person. Lexicologically, the meaning of
the word 'arrest' is given in various dictionaries depending upon the
circumstances in which the said expression is used. The word 'arrest'
when used in its ordinary and natural sense means the apprehension or
restraint or the deprivation of one's personal liberty. The question whether
the person is under arrest or not, depends not on the legality of the arrest,
but on whether he has been deprived of his personal liberty to go where
he pleases. When used in the legal sense in the procedure connected with
criminal offences, an arrest consists in the taking into custody of another
person under authority empowered by law, for the purpose of holding or
detaining him to answer a criminal charge or of preventing the commission
of a criminal offence Directorate of Enforcement v Deepak (1994)3 SCC
440: 1944 Cr LJ 2269.
 Section 41(1)(a) [now section 35(1)(a)] authorizes any police officer
to arrest any person even without a warrant, if such a person sought to be
arrested has been concerned in any cognizable offence etc. It is the case
of the respondents that the 1st petitioner is an accused in five cognizable
offences. Therefore, the Code of Criminal Procedure authorizes the arrest
of the 1st petitioner even without the existence of a warrant - Kura Rajaiah
v Govt. of A.P. 2007 Cr LJ 2031.

Duty of police officer to issue notice. - In Arnesh Kumar v State of

Bihar (2014)8 SCC 273: AIR 2014 SC 2756, the apex court, inter alia, held
that upon registration of FIR it is incumbent upon the Investigating Officer
to decide within two weeks whether in the facts of the case particularly in
the light of the parameters laid down in sec. 41(1)(b)(ii) [now section
35(1)/(b)(i)) of the Code of Criminal Procedure, whether notice under sec.
41A [now section 35(1) to (6)] of CrPC ought to be issued on the
accused or not and such opinion is to be forwarded to the jurisdictional
Magistrate. Failure to do so, amounts to dereliction of duty and would
expose the officer to disciplinary proceeding.
Issuing notice to accused by police directing him to appear. - In
all cases where arrest of a person is not required under sec. 41(1) [now
section 35] CrPC, police officer is required to issue notice directing the
accused to appear before him at a specified place and time. The law
obliges such an accused to appear before police officer and it further
mandates that if such an accused complies with terms of notice he shall
not be arrested, unless for reasons to be recorded, police officer is of the
opinion that the arrest is necessary. At this stage also, condition precedent
for arrest as envisaged under sec. 41 [now section 35] CrPC has to be
complied and shall be subject to same scrutiny by the Magistrate as
aforesaid. If the provisions of sec. 41 [now section 35] CrPC which
authorizes police officer to arrest an accused without an order from a
Magistrate and without a warrant are scrupulously enforced, the wrong
committed by police officers intentionally or unwittingly would be reversed
and number of cases which come to the court for grant of anticipatory bail
will substantially reduce. Practice of mechanically reproducing in the case
diary all or most of the reasons contained in sec. 41 [now section 35]
CrPC for effecting arrest be discouraged and discontinued - Arnesh Kumar
v State of Bihar (2014)8 SCC 273.
 Form of Notice to be issued as per section 41A [now section
35(3) to (6)]. - In all cases where the arrest of a person is not required
under the provisions of sub-sec. (1) of sec. 41, the police officer shall,
issue a notice (in the form of notice given below) directing the person to
appear before him and to comply with the terms of notice. He/she can be
arrested if such person fails to comply with such direction.

S.36. Procedure of arrest and duties of officer making arrest. - 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 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 attested by a
member of his family, that he has a right to have a relative or a friend or
any other person named by him to be informed of his arrest.

Corresponding section. This section corresponds to section 41B, CrPC.

S. 37. Designated police officer. The State Government shall-
(a) Establish a police control room in every district and at State level;
(b) designate a police officer in every district and in every police station,
not below the rank of Assistant Sub Inspector of Police who shall be
responsible for maintaining the information about the names and
addresses of the per sons arrested, nature of the offence with which
charged which shall be prominently displayed in any manner including in
digital mode in every police station and at the district headquarters.

Corresponding section. This section corresponds to section 41C, CrPC.

S. 38. Right of arrested person to meet an advocate of his choice
during interrogation. - 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.

Corresponding section. This section corresponds to section 41D, CrPC.

S. 39. Arrest on refusal to give name and residence - When any person
who, in the presence of a police officer, has com mitted or has been
accused of committing a non-cognizable offence refuses on demand of
such officer to give his name and residence of gives a name or residence
which such officer has reason to believe be false, he may be arrested by
such officer in order that his n residence may be ascertained.

Corresponding section. - This section corresponds to section 45, CrPC.

S. 43. Arrest how made. - (1) In making an arrest the police officer or
other person making the same shall actually touch or con-fine the body of
the person to be arrested, unless there be a submission to the custody by
word or action:
Provided that where a woman is to be arrested, unless the
circumstances indicate to the contrary, her submission to custody on an
oral intimation of arrest shall be presumed and, unless the circumstances
otherwise require or unless the police officer is a female, the police officer
shall not touch the person of the woman for making her arrest.
(2) If such person forcibly resists the endeavor to arrest him, or attempts to
evade the arrest, such police officer or other person may use all means
necessary to effect the arrest.
(3) The police officer may, keeping in view the nature and gravity of the
offence, use handcuff while making the arrest of a person or while
producing such person before the court who is a habitual or repeat
offender, or who escaped from custody, or who has committed offence of
organized crime, terrorist act, drug related crime, or illegal possession of
arms and ammunition, murder, rape, acid attack, counterfeiting of coins
and currency notes, human trafficking, sexual offence against children, or
offence against the State.
(4) Nothing in this section gives a right to cause the death of a person who
is not accused of an offence punishable with death or with imprisonment
for life.
(5) Save in exceptional circumstances, no woman shall be arrested after
sunset and before sunrise, and where such exceptional circumstances
exits, the women police officers shall, by making a written report, obtain
the prior permission of the magistrate of the first class within whose local
jurisdiction the offence is committed or the arrest is to be made.
S. 47. Person arrested to be informed of grounds of arrest and of
right to bail. - (1) Every police officer or other person arresting any person
without warrant shall forthwith communicate to him full particulars of the
offence for which he is arrested or other grounds for such arrest.
(2) Where a police officer arrests without warrant any person other than a
person accused of a non-bailable offence, he shall inform the person
arrested that he is entitled to be released on bail and that he may arrange
for sureties on his behalf.

S.48. Obligation of person making arrest to inform about arrest, etc.,

to relative or friend. - (1) Every police officer or other person making any
arrest under this Sanhita shall forthwith give the information regarding
such arrest and place where the arrested person is being held to any of
his relatives, friends or such other persons as may be disclosed or
nominated by the arrested person for the purpose of giving such
information and al o to the designated police officer in the district.
(2) The police officer shall inform the arrested person of his rights under
sub-section (1) as soon as he is brought to the police station.
(3) An entry of the fact as to who has been informed of the arrest of such
person shall be made in a book to be kept in the police station in such
form as the State Government may, by rules, provide.
(4) It shall be the duty of the Magistrate before whom such arrested
person is produced, to satisfy himself that the requirements of sub-section
(2) and sub-section (3) have been complied with in respect of such
arrested person.

S. 49. Search of arrested person.- (1) Whenever,-

(i) A person is arrested by a police officer under a warrant which
does not provide for the taking of bail, or under a warrant which provides
for the taking of bail but the per-son arrested cannot furnish bail; and
(ii) A person is arrested without warrant, or by a private per-son
under a warrant, and cannot legally be admitted to bail, or is unable to
furnish bail,
the officer making the arrest or, when the arrest is made by a private
person, the police officer to whom he makes over the person arrested,
may search such person, and place in safe custody all articles, other than
necessary wearing-apparel, found upon him and where any article is
seized from the arrested person, a receipt showing the articles taken in
possession by the police officer shall be given to such person.
(2) Whenever it is necessary to cause a female to be searched, the search
shall be made by another female with strict regard to decency.

S. 50. Power to seize offensive weapons. - The police officer or other

person making any arrest under this Sanhita may, immediately after the
arrest is made, take from the person arrested any offensive weapons
which he has about his person, and shall deliver all weapons so taken to
the Court or officer before which or whom the officer or person making the
arrest is required By this Sanhita to produce the person arrested.

S. 51. Examination of accused by medical practitioner at request of

police officer. - (1) When a person is arrested on a charge of committing
an offence of such a nature and alleged to have been committed under
such circumstances that there are reasonable grounds for believing that
an examination of his person will afford evidence as to the commission of
an offence, it shall be lawful for a registered medical practitioner, acting at
the request of any police officer, and for any person acting in good faith in
his aid and under his direction, to make such an examination of the person
arrested as is reasonably necessary in order to ascertain the facts which
may afford such evidence, and to use such force as is reasonably
necessary for that purpose.
(2) Whenever the person of a female is to be examined under this section,
the examination shall be made only by, or under the supervision of, a
female registered medical practitioner.
(3) The registered medical practitioner shall, without any delay, forward
the examination report to the investigating officer.
Explanation. In this section and sections 52 and 53,-
(a) "examination" shall include the examination of blood, blood stains,
semen, swabs in case of sexual offences, sputum and sweat, hair
samples and finger nail clippings by the use of modern and scientific
techniques including DNA profiling and such other tests which the
registered medial practitioner thinks necessary in a particular case;
(b) "Registered medical practitioner" means a medical practitioner who
possesses any medical qualification recognized under the National
Medical Commission Act, 2019 (30 of 2019) and whose name has been
entered in the National Medical Register or a State Medical Register under
that Act.

S. 52. Examination of person accused of rape by medical practitioner.

- (1) When a person is arrested on a charge of com mitting an offence of
rape or an attempt to commit rape and there are reasonable grounds for
believing that an examination of his per-son will afford evidence as to the
commission of such offence, it shall be lawful for a registered medical
practitioner employed in a hospital run by the Government or by a local
authority and in the absence of such a practitioner within the radius of
sixteen kilometers from the place where the offence has been committed,
by any other registered medical practitioner, acting at the request of any
police officer, and for any person acting in good faith in his aid and under
his direction, to make such an examination of the arrested person and to
use such force as is reasonably necessary for that purpose.
(2) The registered medical practitioner conducting such examination shall,
without any delay, examine such person and prepare a report of his
examination giving the following particulars, namely:
(i) the name and address of the accused and of the person by whom he
was brought;
(ii) the age of the accused;
(iii) marks of injury, if any, on the person of the accused;
(iv) the description of material taken from the person of the accused for
DNA profiling, and
(v) other material particulars in reasonable detail.
(3) The report shall state precisely the reasons for each conclusion arrived
at.
(4) The exact time of commencement and completion of the examination
shall also be noted in the report.
(5) The registered medical practitioner shall, without any delay. Forward
the report to the investigating officer, who shall forward it to the Magistrate
referred to in section 193 as part of the documents referred to in clause (a)
of sub-section (6) of that section.

Failure to produce DNA evidence by prosecution. - After saying that

section 53-A [now section 52] is not mandatory, Supreme Court found that
the failure of the prosecution to produce DNA evidence, warranted an
adverse inference to be drawn - Rajendra Pralhadrao Wasnik v State of
Maharashtra (2019)12 SCC 460: (2019)4 SCC (Cri) 420.
The said decision is as follows:
“For the prosecution to decline to produce DNA evidence would be a
little unfortunate particularly when the facility of DNA profiling is available
in the country. The prosecution would be well advised to take ad. Vantage
of this, particularly in view of the provisions of section 53-A [now section
52] and section 164-A CrPC [now section 184]. We are not going to the
extent of suggesting that if there is no DNA profiling, the prosecution case
cannot be proved but we are certainly of the view that where DNA profiling
has not been done or it is held back from the trial court, an adverse
consequence would follow for the prosecution. ”

NOTES
Right of arrested person to be examined by medical practitioner. -
Though sec. 54 [now section 53] confers a right on the arrested person
for examination by a medical practitioner at his request, the arrested
persons generally are not aware of this right. As such he is unable to
exercise this night. It is the duty of the Magistrate to inform the arrested
person about this right of medical examination in case he has any
complaint of torture or mal-treatment in police custody AIR 1983 SC 378:
1983 Cr LJ 642: (1983)2 SCC 96.
Magistrate should inform the arrested person of the right conferred
by the section. Custodial torture should not be viewed in a casual manner
- Sheela Barse v State 1983 Cr LJ 642 (SC): AIR 1983 SC 378.)

S. 55. Procedure when police officer deputes subordinate to arrest

without warrant. - (1) When any officer in charge of a police station or
any police officer making an investigation under Chapter XIII requires any
officer subordinate to him to arrest without a warrant (otherwise than in his
presence) any person who may lawfully be arrested without a warrant, he
shall deliver to the officer required to make the arrest an order in writing,
specifying the person to be arrested and the offence or other cause for
which the arrest is to be made and the officer so required shall, before
making the arrest, notify to the person to be arrested the substance of the
order and, if so required by such person, shall show him the order.
(2) Nothing in sub-section (1) shall affect the power of a police officer to
arrest a person under section 35.
S. 57. Person arrested to be taken before Magistrate or officer in
charge of police station. - A police officer making an arrest without
warrant shall, without unnecessary delay and subject to the provisions
herein contained as to bail, take or send the person arrested before a
Magistrate having jurisdiction in the case, or before the officer in charge of
a police station.

S. 58. Person arrested not to be detained more than twenty-four

hours. - No police officer shall detain in custody a person arrested without
warrant for a longer period than under all the circumstances of the case is
reasonable, and such period shall not, in the absence of a special order of
a Magistrate under section 187, exceed twenty-four hours exclusive of the
time necessary for the journey from the place of arrest to the Magistrate's
Court, whether having jurisdiction or not.

S. 59. Police to report apprehensions. - Officers in charge of police

stations shall report to the District Magistrate, or, if he so directs, to the
Sub-divisional Magistrate, the cases of all persons arrested without
warrant, within the limits of their respective stations, whether such persons
have been admitted to bail or other-wise.

CHAPTER VII
PROCESSES TO COMPEL THE PRODUCTION OF THINGS
A.-Summons to produce

S. 94. Summons to produce document or other thing. - (1) Whenever

any Court or any officer in charge of a police station con-siders that the
production of any document, electronic communication, including
communication devices, which is likely to contain digital evidence or other
thing is necessary or desirable for the purposes of any investigation,
inquiry, trial or other proceeding under this Sanhita by or before such
Court or officer, such Court may is-sue a summons or such officer may, by
a written order, either in physical form or in electronic form, require the
person in whose possession or power such document or thing is believed
to be, to attend and produce it, or to produce it, at the time and place
stated in the summons or order.
(2) Any person required under this section merely to produce a document,
or other thing shall be deemed to have complied with the requisition if he
causes such document or thing to be produced in-stead of attending
personally to produce the same.
(3) Nothing in this section shall be deemed-
(a) To affect sections 129 and 130 of the Bharatiya Sakshya Adhiniyam,
2023 or the Bankers' Books Evidence Act, 1891 (13 of 1891); or
(b) to apply to a letter, postcard, or other document or any parcel or thing
in the custody of the postal authority.)

B.-Search-warrants

S. 96. When search warrant may be issued. - (1) Where-

(a) any Court has reason to believe that a person to whom a summons
order under section 94 or a requisition under sub-section (1) of section 95
has been, or might be, ad-dressed, will not or would not produce the
document or thing as required by such summons or requisition; or
(b) Such document or thing is not known to the Court to be in the
possession of any person; or
(c) The Court considers that the purposes of any inquiry, trial or other
proceeding under this Sanhita will be served by a general search or
inspection, it may issue a search-war-rant; and the person to whom such
warrant is directed, may search or inspect in accordance therewith and the
provisions hereinafter contained.
(2) The Court may, if it thinks fit, specify in the warrant the particular place
or part thereof to which only the search or inspection shall extend; and the
person charged with the execution of such warrant shall then search or
inspect only the place or part so specified.
(3) Nothing contained in this section shall authorize any Magistrate other
than a District Magistrate or Chief Judicial Magistrate to grant a warrant to
search for a document, parcel or other thing in the custody of the postal
authority.

S. 97. Search of place suspected to contain stolen property, forged

documents, etc. - (1) If a District Magistrate, Sub-divisional Magistrate or
Magistrate of the first class, upon information and after such inquiry as he
thinks necessary, has reason to believe that any place is used for the
deposit or sale of stolen property, or for the deposit, sale or production of
any objectionable article to which this section applies, or that any such
objectionable article is deposited in any place, he may by warrant
authorize any police officer above the rank of a constable-
(a) to enter, with such assistance as may be required, such place;
(b) to search the same in the manner specified in the war-rant;
(c) to take possession of any property or article therein found which he
reasonably suspects to be stolen property or objectionable article to which
this section applies;
(d) to convey such property or article before a Magistrate, or to guard the
same on the spot until the offender is taken before a Magistrate, or
otherwise to dispose of it in some place of safety;
(e) to take into custody and carry before a Magistrate every person found
in such place who appears to have been privy to the deposit, sale or
production of any such property or article knowing or having reasonable
cause to suspect it to be stolen property or, as the case may be,
objectionable article to which this section applies.
(2) The objectionable articles to which this section applies are -
(a) Counterfeit coin;
(b) pieces of metal made in contravention of the Coinage Act, 2011 (11 of
2011), or brought into India in contravention of any notification for the time
being in force issued under section 11 of the Customs Act, 1962 (52 of
1962);
(c) Counterfeit currency note; counterfeit stamps;
(d) forged documents;
(e) False seals;
(f) Obscene objects referred to in section 294 of the Bharatiya Nyaya
Sanhita, 2023;
(g) Instruments or materials used for the production of any of the articles
mentioned in clauses (a) to (f).

S. 100. Search for persons wrongfully confined. - 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 confirmed; and such search shall be made in accordance
therewith, and 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.

S. 101. Power to compel restoration of abducted females.-

upon complaint made on oath of the abduction or unlawful detention of a
woman, or a female child for any unlawful purpose, a District Magistrate,
Sub-divisional Magistrate or Magistrate of the first class may make an
order for the immediate restoration of such woman to her liberty, or of
such female child to her parent, guardian or other person having the lawful
charge of such child, and may compel compliance with such order, using
such force as may be necessary.

S. 103. Persons in charge of closed place to allow search.-

(1) Whenever any place liable to search or inspection under this Chapter
is closed, any person residing in, or being in charge of, such place, shall,
on demand of the officer or other person executing the warrant, and on
production of the warrant, allow him free ingress thereto, and afford all
reasonable facilities for a search therein.
(2) If ingress into such place cannot be so obtained, the officer or other
person executing the warrant may proceed in the manner pro-vided by
sub-section (2) of section 44.
(3) Where any person in or about such place is reasonably suspected of
concealing about his person any article for which search should be made,
such person may be searched and if such person is a woman, the search
shall be made by another woman with strict regard to decency.
(4) Before making a search under this Chapter, the officer or other person
about to make it shall call upon two or more independent and respectable
inhabitants of the locality in which the place to be searched is situate or of
any other locality if no such inhabitant of the said locality is available or is
willing to be a witness to the search, to attend and witness the search and
may issue an order in writing to them or any of them so to do.
(5) The search shall be made in their presence, and a list of all things
seized in the course of such search and of the places in which they are
respectively found shall be prepared by such officer or other person and
signed by such witnesses; but no person witnessing a search under this
section shall be required to attend the Court as a witness of the search
unless specially summoned by it.
(6) The occupant of the place searched, or some person in his be-half,
shall, in every instance, be permitted to attend during the search, and a
copy of the list prepared under this section, signed by the said witnesses,
shall be delivered to such occupant or person.
(7) When any person is searched under sub-section (3), a list of all things
taken possession of shall be prepared, and a copy thereof shall be
delivered to such person.
(8) Any person who, without reasonable cause, refuses or neglects to
attend and witness a search under this section, when called upon to do so
by an order in writing delivered or tendered to him, shall be deemed to
have committed an offence under section 222 of the Bharatiya Nyaya
Sanhita, 2023.

S. 105. Recording of search and seizure through audio-video

electronic means. - The process of conducting search of a place or
taking possession of any property, article or thing under this Chapter or
under section 185, including preparation of the list of all things seized in
the course of such search and seizure and signing of such list by
witnesses, shall be recorded through any audio-video electronic means
preferably mobile phone and the police officer shall without delay forward
such recording to the District Magistrate, Sub-divisional Magistrate or
Judicial Magistrate of the first class.

S. 106. Power of police officer to seize certain property. - (1) any

police officer may seize any property which may be alleged or suspected
to have been stolen, or which may be found under circumstances which
create suspicion of the commission of any offence.
(2) Such police officer, if subordinate to the officer in charge of a police
station, shall forthwith report the seizure to that officer. (3) Every police
officer acting under sub-section (1) shall forthwith report the seizure to the
Magistrate having jurisdiction and where the property seized is such that it
cannot be conveniently transported to the Court, or where there is difficulty
in securing proper accommodation for the custody of such property, or
where the continued retention of the property in police custody may not be
considered necessary for the purpose of investigation, he may give
custody thereof to any person on his executing a bond undertaking to
produce the property before the Court as and when required and to give
effect to the further orders of the Court as to the disposal of the same:
Provided that where the property seized under sub-section (1) is subject to
speedy and natural decay and if the person entitled to the possession of
such property is unknown or absent and the value of such property is less
than five hundred rupees, it may forthwith be sold by auction under the
orders of the Superintendent of Police and the provisions of sections 503
and 504 shall, as nearly as may be practicable, apply to thenet proceeds
of such sale.

CHAPTER XI
MAINTENANCE OF PUBLIC ORDER AND TRANQUILLITY
A.-Unlawful assemblies
S. 148. Dispersal of assembly by use of civil force. - (1) Any Executive
Magistrate or officer in charge of a police station or, in the absence of such
officer in charge, any police officer, not below the rank of a 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
thereupon be the duty of the members of such assembly to disperse
accordingly.
(2) If, upon being so commanded, any such assembly does not disperse, or if,
without being so commanded, it conducts itself in such a manner as to show a
determination not to disperse, any Executive Magistrate or police officer
referred to in sub-section (1), may proceed to disperse such assembly by force,
and may require the assistance of any person, not being an officer or member
of the armed forces and acting as such, for the purpose of dispersing such
assembly, and, if necessary, arresting and confining the persons who form part
of it, in order to disperse such assembly or that they may be punished according
to law.

S. 149. Use of armed forces to disperse assembly. - (1) If any assembly

referred to in sub-section (1) of section 148 cannot otherwise be dispersed, and
it is necessary for the public security that it should be dispersed, the District
Magistrate or any other Executive Magistrate authorized by him, who is present,
may cause it to be dispersed by the armed forces.
(2) Such Magistrate may require any officer in command of any group of
persons belonging to the armed forces to disperse the assembly with the help of
the armed forces under his command, and to arrest and confine such persons
forming part of it as the Executive Magistrate may direct, or as it may be
necessary to arrest and confine in order to disperse the assembly or to have
them punished according to law.
(3) Every such officer of the armed forces shall obey such requisition in such
manner as he thinks fit, but in so doing he shall use as little force, and do as
little injury to person and property, as may be consistent with dispersing the
assembly and arresting and detaining such persons.
S. 160. Procedure on order being made absolute and consequences of
disobedience. - (1) When an order has been made absolute under section 155
or section 157, the Magistrate shall give notice of the same to the person
against whom the order was made, and shall further require him to perform the
act directed by the order within the time to be fixed in the notice, and inform him
that, in case of disobedience, he shall be liable to the penalty provided by
section 223 of the Bharatiya Nyaya Sanhita, 2023.
(2) If such act is not performed within the time fixed, the Magistrate may cause it
to be performed, and may recover the costs of performing it, either by the sale
of any building, goods or other property removed by his order, or by the distress
and sale of any other movable property of such person within or without such
Magistrate's local jurisdiction, and if such other property is without such
jurisdiction, the order shall authorize its attachment and sale when endorsed by
the Magistrate within whose local jurisdiction the property to be attached is
found.
(3) No suit shall lie in respect of anything done in good faith un-der this section.

S. 161. Injunction pending inquiry. - (1) If a Magistrate making an order under

section 152 considers that immediate measures should be taken to prevent
imminent danger or injury of a serious kind to the public, he may issue such an
injunction to the person against whom the order was made, as is required to
obviate or pre-vent such danger or injury pending the determination of the mat-
201
(2) In default of such person forthwith obeying such injunction, the Magistrate
may himself use, or cause to be used; such means as he thinks fit to obviate
such danger or to prevent such injury.
(3) No suit shall lie in respect of anything done in good faith by a Magistrate
under this section.

NOTES
The apex court has issued the following directions, presumably on the basis
that the acts referred to in this guidelines amount repetition or continuation of
public nuisance. The following guidelines are to be observed mandatorily till
legislation on this subject is enacted. It is observed: As soon as there is a
demonstration organized:
(1) The organizer shall meet the police to review and revise the route to be
taken and to lay down conditions for a peaceful march or protest:
(2) All weapons, including knives, lathis and the like shall be prohibited;
(3) An undertaking is to be provided by the organizers to ensure a peaceful
march with marshals at each relevant junction;
(4) The police and the State Government shall ensure videography of such
protests to the maximum extent possible;
(5) The person-in-charge to supervise the demonstration shall be SP (if the
situation is confined to the district) and the highest police officer in the State,
where the situation stretches beyond one district;
(6) In the event that demonstrations turn violent, the officer-in-charge shall
ensure that the events are video-graphed through private operators and also
request such further information from the media and others on the incidents in
question;
(7) The police shall immediately inform the State Government with reports on
the events, including damage, if any, caused by the police, and
(8) The State Government shall prepare a report on the police reports and other
information that may be available to it and shall file a petition including its report
in the High Court or the Supreme Court, as the case may be, for the Court in
question to take suo motu action.
C.-Urgent cases of nuisance or apprehended danger

S. 163. Power to issue order in urgent cases of nuisance or apprehended

danger. - (1) In cases 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 sec-ion and immediate prevention or speedy remedy is desirable,
such Magistrate may, by a written order stating the material facts of the case
and served in the manner provided by section 153, 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 or
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.
(2) An order under this section may, in cases of emergency or in cases where
the circumstances do not admit of the serving in due time of a notice upon the
person against whom the order is directed, be passed ex parte.
(3) An order under this section may be directed to a particular individual, or to
persons residing in a particular place or area, or to the public generally when
frequenting or visiting a particular place or area.
(4) No order under this section shall remain in force for more than two months
from the making thereof;
Provided that if the State Government considers it necessary so to do for
preventing danger to human life, health or safety or for preventing a riot or any
affray, it may, by notification, direct that an order made by a Magistrate under
this section shall remain in force for such further period not exceeding six
months from the date on which the order made by the Magistrate would have,
but for such order, expired, as it may specify in the said notification.
(5) Any Magistrate may, either on his own motion or on the application of any
person aggrieved, rescind or alter any order made under this section by himself
or any Magistrate subordinate to him or by his predecessor-in-office.
(6) The State Government may, either on its own motion or on the application of
any person aggrieved, rescind or alter any order made by it under the proviso to
sub-section (4).
(7) Where an application under sub-section (5) or sub-section (6) is received,
the Magistrate, or the State Government, as the case may be, shall afford to the
applicant an early opportunity of appearing before him or it, either in person or
by an advocate and showing cause against the order; and if the Magistrate or
the State Government, as the case may be, rejects the application wholly or in
part, he or it shall record in writing the reasons for so doing.)

Safeguards in section 144 [now section 163] deserve close security:

(1) Prior inquiry before issuing order. - Before issuing an order under Section
144 CrPC [now section 163], the District Magistrate (or any authorized
Magistrate) must be of the opinion that:
(i) There is a sufficient ground for proceeding under this provision is the order is
likely to prevent obstruction, annoyance or injury to any person lawfully
employed or danger to human life, health or
Safety or disturbance to the public tranquility; and
(ii) Immediate prevention or speedy remedy is desirable
The phrase "opinion" suggests that it must be arrived at after a careful inquiry
by the Magistrate about the need to exercise the extraordinary power conferred
under this provision.
(2) Content of the order. - Once a Magistrate arrives at an opinion, he may
issue a written order either prohibiting a person from doing something a
mandatory order requiring a person to take action with respect to property in his
possession or under his management. But the order cannot be a blanker order.
It must set out the "material facts" of the case. The "material facts" must
indicate the reasons which weighed with the Magistrate to issue an order under
sec. 144 CrPC [now section 163].
(3) Communication of the order. - The order must be served in the manner
provided under sec. 134 CrPC [now section 153] i.e. served on the person
against whom it is made. If such a course of action is not practicable t must be
notified by proclamation and publication so as to convey the information to
persons affected by the order. Only in case of an emergency or where the
circumstances are such that notice cannot be served on such a person can the
order be passed ex parte.
(4) Duration of the order. - As this power can only be exercised in urgent
cases, the statute has incorporated temporal restrictions-the order cannot be in
force for more than two months. However, the State Government can extend an
order issued under sec. 144 CrPC [now section 163] by a Magistrate for a
further period up to six months if the State Government considers necessary for
preventing danger to human life, health or safety or preventing a riot. Although,
a two-month period outer limit for the Magistrate, and a six month limit for the
State Government, has been provided under sec. 144 CPC but the Magistrate
and the State Government concerned must take all steps ensure that the
restrictions are imposed for a limited duration.
(5) Act judicially while rescinding or modifying the order. - The Magistrate
can rescind or alter any order made by him on his own or on an application by
any aggrieved person. Similarly, the State Government may also on its own
motion rescind or alter any order passed by it, extending an order passer under
sec. 144 CrPC [now section 163]. While considering any application for
modification or alteration, the Magistrate or the State Government is required to
act judicially i. e, give a personal hearing and give reasons if it rejects the
application. Care should be taken to dispose of such applications expeditiously -
Anuradha Bhasin v Union of India AIR 2020 SC 1308 (3-Judge Bench):
(2020)3 SCC (Cri) 637 (Paras 116.1 to 116.5).

Exercising of power to modifying/rescinding the order under section 144.-

Section 144 CrPC [now section 163] enables the State to DV preventive
measures to deal with imminent threats to public peace it enable the Magistrate
to issue a mandatory order requiring certain actions to be undertaken, or a
prohibitory order restraining citizens from doing certain things. But it also
provides for several safeguards to ensure that the power is not abused viz. prior
inquiry before exercising this power, setting out material facts for exercising this
power and modifying/rescinding the order when the situation so warrants -
Anuradha Bhasin v Union of India (2020)3 SCC 637 (para 115) (3-Judge
Bench).

Restriction should not be excessive either in nature or in time. - Supreme

Court, in Ramlila Maidan Incident, In re (2012)5 SCC 1: (2012)2 SCC (Cri) 241,
held that an onerous duty is cast upon the Magistrate concerned to first assess
the perceived threat and impose the least invasive restriction possible. The
Magistrate concerned is duty-bound to ensure that the restrictions should never
be allowed to be excessive either in nature or in time.
(1) "There has to be a balance and proportionality between the right and
restriction on the one hand, and the right and duty, on the other. It will create an
imbalance, if undue or disproportionate emphasis is placed upon the right of a
citizen without considering the significance of the duty. The true source of right
is duty....
(2) Out of the foretasted requirements, the requirements of existence of
sufficient ground and need for immediate prevention or speedy remedy is of
prime significance. In this context, the perception of the officer recording the
desired/contemplated satisfaction has to be reasonable, least invasive and
bona fide. The restraint has to be reasonable and further must be minimal. Such
restraint should not be allowed to exceed the constraints of the particular
situation either in nature or in duration. The most onerous duty that is cast upon
the empowered officer by the legislature is that the perception of threat to public
peace and tranquility should be real and not quandary, imaginary or a mere
likely possibility."

S. 169. Information of design to commit cognizable offences. - Every police

officer receiving information of a design to commit any cognizable offence shall
communicate such information to the police officer to whom he is subordinate,
and to any other officer whose duty it is to prevent or take cognizance of the
commission of any such offence.

S. 170. Arrest to prevent commission of cognizable offences. - (1) A police

officer knowing of a design to commit any cognizable offence may arrest,
without orders from a Magistrate and without a warrant, the person so
designing, if it appears to such officer that the commission of the offence cannot
be otherwise pre-vented. (2) No person arrested under sub-section (1) shall be
detained in custody for a period exceeding twenty-four hours from the time of
his arrest unless his further detention is required or authorized under any other
provisions of this Sanhita or of any other law for the time being in force.

NOTES
Arrest, when can be made. - A person is not liable to arrest on mere
suspicion. There must be some reasonable justification in the opinion of the
officer effecting the arrest that such arrest is necessary and justified - Joginder v
State 1994 Cr LJ 1981 (SC).
Power to arrest without warrant, if unconstitutional. - Power conferred on a
police authority to arrest without warrant is not unconstitutional - Ahmed
Noormohammed v State (2005)3 SCC 647: AIR 2005 SC 2115: 2005 Cr LJ
2157. But if the period of detention exceeds 24 hours, without anything else. the
detainee must be released thereafter.
Arrest in apprehension of breach of peace. - The objects of sec. 107/151
CrPC [now section 170] are of preventive justice and not punitive. Section 151
should only be invoked when there is imminent danger to peace or likelihood of
breach of peace under sec. 107 CrPC [now section 126]. An arrest under sec.
151 [now section 170] can be supported when the person to be arrested
designs to commit a cognizable offence. Il a proceeding under section 107/151
appears to be absolutely necessary to deal with the threatened apprehension of
breach of peace, it is incumbent upon the authority concerned to take prompt
action. The jurisdiction vested in a Magistrate to act under sec. 107 is to be
exercised in an emergent situation - Rajender Singh v State (2012)1 SCC (Cri)
873: (2011)13 SCC 329.

Conditions for arrest by police without warrant: Punishment of arresting

authority for misuse of power. - A mere perusal of sec. 151 [now section
170] of the CrPC makes it clear that the conditions under which a police officer
may arrest a person without an order from a Magistrate and without a warrant
have been laid down in section 151 [now section 170]. He can do so only if he
has come to know of a design of the person concerned to commit any
cognizable offence. A further condition for the exercise of such power, which
must also be fulfilled, is that the arrest should be made only if it appears to the
police officer concerned that the commission of the offence cannot be otherwise
prevented. The section, therefore, expressly lays down the requirements for
exercise of the power to arrest without an order from a Magistrate and without a
warrant. If these conditions are not fulfilled and a person is arrested under sec.
151 CrPC [now section 170], the arresting authority may be exposed to
proceedings under the law for violating the fundamental rights inherent in Arts.
21 and 22 of the Constitution - Rajender Singh v State (2012)1 SCC (Cri) 873:
(2011)13 SCC 329.

S. 171. Prevention of injury to public property. - A police officer may of his

own authority interpose to prevent any injury at-tempted to be committed in his
view to any public property, movable or immovable, or the removal or injury of
any public landmark, buoy or other mark used for navigation.

S. 172. Persons bound to conform to lawful directions of police. - (1) All

persons shall be bound to conform to the lawful directions of a police officer
given in fulfillment of any of his duty un-der this Chapter.
(2) A police officer may detain or remove any person resisting, refusing,
ignoring or disregarding to conform to any direction given by him under sub-
section (1) and may either take such person be-fore a Magistrate or, in petty
cases, release him as soon as possible within a period of twenty-four hours.

S. 350. Expenses of complainants and witnesses. - Subject to any rules

made by the State Government, any Criminal Court may, if it thinks fit, order
payment, on the part of the Government, of the reasonable expenses of any
complainant or witness attending for the purposes of any inquiry, trial or other
proceeding before such Court under this Sanhita.
S. 351. Power to examine accused.-(1) in every inquiry or
Trial, for the purpose of enabling the accused personally to explain any
circumstances appearing in the evidence against him, the Court-
(a) may at any stage, without previously warning the accused put such
questions to him as the Court considers necessary;
(b) shall, after the witnesses for the prosecution have been examined and
before he is called on for his defence, question him generally on the case:
Provided that in a summons case, where the Court has dispensed with the
personal attendance of the accused, it may also dispense with his examination
under clause (b).
(2) No oath shall be administered to the accused when he is examined under
sub-section (1).
(3) The accused shall not render himself liable to punishment by refusing to
answer such questions, or by giving false answers to them.
(4) The answers given by the accused may be taken into consideration in such
inquiry or trial, and put in evidence for or against him in any other inquiry into, or
trial for, any other offence which such answers may tend to show he has
committed.
(5) The Court may take help of Prosecutor and Defence Counsel in preparing
relevant questions which are to be put to the accused and the Court may permit
filing of written statement by the ac cused as sufficient compliance of this
section.)

Supreme Court Guidelines on examination of accused, preparations of

question and explanation of accused.- (1) Section 313 CrPC [clause (b) of
sub-sec. (1)] [now section 351] is a valuable safeguard in the trial process for
the accused to establish his innocence.
(2) Section 313, which is intended to ensure a direct dialogue between the
court and the accused, casts a mandatory duty on the court to question the
accused generally on the case for the purpose of enabling him to personally
explain any circumstances appearing in the evidence against him.
(3) When questioned, the accused may not admit his involvement at all
and choose to flatly deny or out rightly repudiate whatever is put to him by the
court.
(4) The accused may even admit or own incriminating circumstances
adduced against him to adopt legally recognized defences.
(5) An accused can make a statement without fear of being cross-
examined by the prosecution or the latter having any right to cross-examine
him.
(6) The explanations that an accused may furnish cannot be considered in
isolation but have to be considered in conjunction with the evidence adduced by
the prosecution and, therefore, no conviction can be premised solely on the
basis of the sec. 313 statement(s).
(7) statements of the accused in course of examination under section 313,
since not on oath, do not constitute evidence under sec. 3 of the Evidence Act
[now section 2(1)(k)] yet, the answers given are relevant for finding the truth
and examining the veracity of the prosecution case.
 (8) Statement(s) of the accused cannot be dissected to rely on the
inculpatory part and ignore the exculpatory part and has/have to be read in the
whole, inter alia, to test the authenticity of the exculpatory nature of admission.
(9) If the accused takes a defence and proffers any alternate version of
events or interpretation, the court has to carefully analyses and considers his
statements.
(10) Any failure to consider the accused's explanation of incriminating
circumstances, in a given case, may vitiate the trial and/or endanger the
conviction.
Bearing the above well-settled principles in mind, every criminal court
proceeding under clause (b) of sub-sec. (1) of sec. 313 [now section 351] has
to shoulder the onerous responsibility of scanning the evidence after the
prosecution closes its case, to trace the incriminating circumstances in the
evidence against the accused and to prepare relevant questions to extend
opportunity to the accused to explain any such circumstance in the evidence
that could be used against him. Prior to the amendment of sec. 313 in 2009, the
courts alone had to perform this task. Instances of interference with convictions
by courts of appeal on the ground of failure of the trial court to frame relevant
questions and to put the same to the accused were not rare - Prem Chand v
State of Maharashtra (2023)2 SCC (Cri) 535: (2023)5 SCC 522.)
Defence taken by accused under section 313 [now section 351] -
standard of proof. - Supreme Court has held that the standard of proof to be
met by an accused in support of the defence taken by him under sec. 313 [now
section 351] of the Code of Criminal Procedure is not beyond all reasonable
doubt, as such, a burden lies on the prosecution to prove the charge. The
accused has merely to create a doubt and it is for the prosecution then to
establish beyond reasonable doubt that no benefit can flow from the same to
the accused (See: Pramila v State of U.P. (2021) 12 SCC 550: (2023) 2 SCC
(Cri) 223).
The respondent argued that no specific plea of alibi was taken in the
statement of the appellant recorded under sec. 313 [now section 351] CrPC. In
fact, it is submitted that there is an implicit admission as to his presence in the
house. It is too well settled that the statement of an accused under section 313
CrPC is no evidence" because, firstly, it is not on oath and secondly, the other
party i.e. the prosecution does not get an opportunity to cross-examine the
accused - Manu Sharma v State (NTC of Delhi) (2010)6 SCC 1: (2010) 2 SCC
(Cri) 1385: AIR 2010 SC 2352.
It is trite law that the statement recorded under sec. 313 [now section
351] CrPC cannot form the sole basis of conviction. Therefore, the presence of
the appellant cannot be found solely based on his statement, notwithstanding
the lack of independent evidence led by the prosecution. Further, Supreme
Court has previously considered the consequences when a particular defence
plea was not taken by the accused under sec. 313 CrPC and held that mere
omission to take a specific plea by the accused when examined under sec. 313
CrPC, is not enough to denude him of his right if the same can be made out
otherwise - Periasami v State of T.N. (1996)6 SCC 457: 1997 SCC (Cri) 121.
 Also see Darshan Singh v State of Punjab (2024)3 SCC 164 (3-Judges
Bench).
False explanation. - The statement recorded under sec. 313 CrPC [now
section 351], though all these incriminating circumstances have been put to the
appellant, he has not offered any explanation except saying that it is wrong and
false. In this respect, court may refer to the following observations in Sharad
Birdhichand Sardav State of Maharashtra (1984) 4 SCC 116: 1984 SCC (Cr)
487.
"It is well settled that the prosecution must stand or fall on its own legs
and it cannot derive any strength from the weakness of the defence this is trite
law and no decision has taken a contrary view. What some cases have held is
only this: where various links in a chain are in them-selves complete, then a
false plea or a false defence may be called into aid only to lend assurance to
the court. In other words, before using the additional link it must be proved that
all the links in the chain are complete and do not suffer from any infirmity. It is
not the law that where there is any infirmity or lacuna in the prosecution case,
the same could be cured or supplied by a false defence or a plea which is not
accepted by a Court."
It is trite law that though the false explanation cannot be taken to complete
a missing link in the chain of circumstances, it can surely be taken to fortify the
conclusion of conviction recorded on the basis of the proven incriminating
circumstances. Court finds that the non-explanation of the circumstances would
fortify the finding, which is based on the chain of incriminating circumstances
that lead to no other conclusion than the guilt of the appellant.
Statement of accused under section 313 [now section 351], if can be
made sole basis of conviction. - Statement under sec. 313 is not evidence. It
is only the stand of the accused or version by way of explanation, when
incriminating materials appearing against him are brought to his notice
Devendra v Baldev AIR 2004 SC 3084. The statement of accused under sec.
313 is not substantive evidence, it can be used for appreciating evidence led by
the prosecution to accept or reject it. It is, however, not a substitute for the
evidence of the prosecution. If the exculpatory part of his statement is found to
be false and the evidence led by the prosecution is reliable, the inculpatory part
of his statement can be taken aid of to lend assurance to the evidence of the
prosecution. If the prosecution evidence does not inspire confidence to sustain
the conviction of the accused, the inculpatory part of his statement under sec.
313 cannot be made the sole basis of the conviction - Mohan Singh v Prem
Singh 2003 Cr LJ 11 (SC).
Use of statement of accused. - It is well-settled that where a confession
or an admission is separable there can be no objection to taking one part into
consideration which appears to be true and reject the other part which is false -
AIR 1978 SC 1096; 1978 Cr LJ 1089: (1978)2 SCC 407. If the evidence on
record disproves the exculpatory part of the statement of the accused, it is
clearly permissible to accept that part of the statement which accords with the
evidence on the record, and to act upon it - AIR 1978 SC 1183; 1978 Cr LJ
1107: (1978)3 SCC 279. Court can rely on a portion of the statement of the
accused and find him guilty in consideration of the other evidence led against
him by the prosecution - AIR 1978 SC 315: 1978 Cr LJ 347. The statement of a
co-accused cannot be used against another accused - AIR 1968 SC 609; 1968
Cr LJ 657. The court cannot split the statement and accept a portion and reject
the same. The statement either has to be accepted as a whole or not to be
relied at all - AIR 1971 SC 866: 1971 Cr LJ 760: (1970)3 SCC 183. Answers
given by the accused are likely to help the court in appreciating the entire
evidence adduced in course of the trial - Rattan v State (1997)4 SCC 161; see
also, State v Lakhmi (1998)4 SCC 336.
Failure of accused to explain circumstances. - It is not necessary for
the accused to speak and explain but when the case rests on circumstantial
evidence failure of the accused to explain the same would enable an inference
being drawn against him, the fact being in the exclusive knowledge of the
accused (here, possession of stolen property) - Ganesh v State (2002)1 SOC
731.
Matter excluded from consideration under section 313 [now section
351] - The Supreme Court in Sharad Birdhichand Sarda v State of Maharashtra
(1984)4 SCC 116: (1984) SCC (Cri) 487, it was held thus:
"It is not necessary for us to multiply authorities on this point as this
question now stands concluded by several decisions of this Court. In this view
of the matter, the circumstances which were not put to the appellant in his
examination under section 313 of the Criminal Procedure Code, 1973 [now
section 351] have to be completely excluded from consideration."
Questioning an accused under sec. 313 [now section 351] CrPC is not
an empty formality. The requirement of sec. 313 CrPC is that the accused must
be explained the circumstances appearing in the evidence against him so that
accused can offer an explanation. After an accused is questioned under sec.
313 CrPC [now section 351], he is entitled to take a call on the question of
examining defence witnesses and leading other evidence. If the accused is not
explained the important circumstances appearing against him in the evidence
on which his conviction is sought to be based, the accused will not be in
position to explain the said circumstances brought on record against him. He
will not be able to properly defend himself - Kalicharan v State of U.P. (2023)2
SCC 583.
“Presume" meaning. - In Amit Kapoor v Ramesh Chander (2012)9 SCC
480: (2012)4 SCC (Civ) 687: (2013)1 SCC (Cri) 986, Supreme Court observed
in that the Legislature in its wisdom has used the expression "there is ground for
presuming that the accused has committed an offence". There is an inbuilt
element of presumption. It referred to its judgment rendered in State of
Maharashtra v Som Nath Thapa (1996)4 SCC 659: 1996 SCC (Cri) 820 and to
the meaning of the word "presume", placing reliance upon Black's Law
Dictionary, where it was defined to mean:
“….to believe or accept upon probable evidence'; 'to take as true until
evidence to the contrary is forthcoming'. In other words, the truth of the matter
has to come out when the prosecution evidence is led, the witnesses are cross-
examined by the defence, the incriminating material and evidence is put to the
accused in terms of section 313 of the Code [now section 351] and then the
accused is provided an opportunity to lead defence, if any. It is only upon
completion of such steps that the trial concludes with the Court fonning its final
opinion and delivering its judgment."

S. 352. Oral arguments and memorandum of arguments. -

(1) Any party to a proceeding may, as soon as may be, after the close of
his evidence, address concise oral arguments, and may, before he concludes
the oral arguments, if any, submit a memorandum to the Court setting forth
concisely and under distinct headings, the arguments in support of his case and
every such memorandum shall form part of the record.
(2) A copy of every such memorandum shall be simultaneously furnished
to the opposite party.
(3) No adjournment of the proceedings shall be granted for the purpose of
filing the written arguments unless the Court, for reasons to be recorded in
writing, considers it necessary to grant such adjournment.
(4) The Court may, if it is of opinion that the oral arguments are not
concise or relevant, regulate such arguments.

S. 353. Accused person to be competent witness. - (1) Any person accused

of an offence before a Criminal Court shall be a competent witness for the
defence and may give evidence on oath in disproof of the charges made
against him or any person charged together with him at the same trial:
Provided that -
(a) he shall not be called as a witness except on his own request in
writing;
(b) his failure to give evidence shall not be made the subject of any
comment by any of the parties or the Court or give rise to any presumption
against himself or any person charged together with him at the same trial.
(2) Any person against whom proceedings are instituted in any Criminal
Court under section 101, or section 126, or section 127, or section 128, or
section 129, or under Chapter X or under Part B, Part C or Part D of Chapter XI,
may offer himself as a witness in such proceedings:
Provided that in proceedings under section 127, section 128, or section
129, the failure of such person to give evidence shall not be made the subject of
any comment by any of the parties or the Court or give rise to any presumption
against him or any other person proceeded against together with him at the
same inquiry.

S. 356. Inquiry, trial or judgment in absentia of proclaimed offender. -

(1) Notwithstanding anything contained in this Sanhita or in any other law
for the time being in force, when a person declared as a proclaimed offender,
whether or not charged jointly, has absconded to evade trial and there is no
immediate prospect of arresting him, it shall be deemed to operate as a waiver
of the right of such person to be present and tried in person, and the Court
shall, after recording reasons in writing, in the interest of justice, proceed with
the trial in the like manner and with like effect as if he was present, under this
Sanhita and pronounce the judgment:
 Provided that the Court shall not commence the trial unless a period of
ninety days has lapsed from the date of framing of the charge.
(2) The Court shall ensure that the following procedure has been complied
with before proceeding under sub-section (1), namely:
(i) Issuance of two consecutive warrants of arrest within the interval
of at least thirty days;
(ii) publish in a national or local daily newspaper circulating in the
place of his last known address of residence, requiring the proclaimed
offender to appear before the Court for trial and informing him that in case
he fails to appear within thirty days from the date of such publication, the
trial shall commence in his absence;
(iii) Inform his relative or friend, if any, about the commencement of
the trial; and
(iv) Affix information about the commencement of the trial on some
conspicuous part of the house or homestead in which such person
ordinarily resides and display in the police station of the district of his last
known address of residence.
(3) Where the proclaimed offender is not represented by any advocate, he
shall be provided with an advocate for his defence at the expense of the State.
(4) Where the Court, competent to try the case or commit for trial, has
examined any witnesses for prosecution and recorded their depositions, such
depositions shall be given in evidence against such proclaimed offender on the
inquiry into, or in trial for, the offence with which he is charged:
Provided that if the proclaimed offender is arrested and produced or
appears before the Court during such trial, the Court may, in the interest of
justice, allow him to examine any evidence which may have been taken in his
absence.
(5) Where a trial is related to a person under this section, the deposition
and examination of the witness, may, as far as practicable, be recorded by
audio-video electronic means preferably mobile phone and such recording shall
be kept in such manner as the Court may direct.
(6) In prosecution for offences under this Sanhita, voluntary absence of
accused after the trial has commenced under sub-section (1) shall not prevent
continuing the trial including the pronouncement of the judgment even if he is
arrested and produced or appears at the conclusion of such trial.
(7) No appeal shall lie against the judgment under this section unless the
proclaimed offender presents himself before the Court of appeal:
Provided that no appeal against conviction shall lie after the expiry of
three years from the date of the judgment.
(8) The State may, by notification, extend the provisions of this section to
any absconder mentioned in sub-section (1) of section 84.

S.357. Procedure where accused does not understand proceedings. - If the

accused, though not a person of unsound mind, cannot be made to understand
the proceedings, the Court may proceed with the inquiry or trial: and, in the
case of a Court other than a High Court, if such proceedings result in a
conviction, the proceedings shall be forwarded to the High Court with a report of
the circumstances of the case, and the High Court shall pass thereon such
order as it thinks fit.

S. 358. Power to proceed against other persons appearing to be guilty of

offence. - (1) Where, in the course of any inquiry into, or trial of, an offence, it
appears from the evidence that any person not being the accused has
committed any offence for which such person could be tried together with the
accused, the Court may proceed against such person for the offence which he
appears to have committed.
(2) Where such person is not attending the Court, he may be arrested or
summoned, as the circumstances of the case may require, for the purpose
aforesaid.
(3) Any person attending the Court, although not under arrest of upon a
summons, may be detained by such Court for the purpose of the inquiry into, or
trial of, the offence which he appears to have committed.
(4) Where the Court proceeds against any person under sub-section (1), then-
(a) the proceedings in respect of such person shall be commenced afresh,
and the witnesses re-heard;
(b) subject to the provisions of clause (a), the case may proceed as if
such person had been an accused person when the Court took cognizance of
the offence upon which the inquiry or trial was commenced.

NOTES
Object and scope. - The legal position that can be culled out from sec.
319 [now section 358] may be summed up as under:
(i) The court can exercise the power conferred on it under sec. 319 of the
Code suo motu or on an application by someone.
(ii) The power conferred under sec. 319(1) applies to all courts including
the Sessions Court.
(iii) The phrase "any person not being the accused" occurring in sec. 319
does not exclude from its operation an accused who has been released by the
police under sec. 169 of the Code [now section 189] and has been shown in
column 2 of the charge-sheet. In other words, the said expression covers any
person who is not being tried already by the court and would include person or
persons who have been dropped by the police during investigation but against
whom evidence showing their involvement in the offence comes before the
court.
(iv) The power to proceed against any person, not being the accused
before the court, must be exercised only where there appears during inquiry or
trial sufficient evidence indicating his involvement in the offence as an accused
and not otherwise. The word "evidence" in sec. 319 [now section 358]
contemplates the evidence of witnesses given in court in the inquiry or trial. The
court cannot add persons as accused on the basis of materials available in the
charge-sheet or the case diary but must be based on the evidence adduced
before it. In other words, the court must be satisfied that a case for addition of
persons as accused, not being the accused before it, has been made out on the
additional evidence let in before it.
 (v) The power conferred upon the court is although discretionary but is not
to be exercised in a routine manner. In a sense, it is an extraordinary power
which should be used very sparingly and only it evidence has come on record
which sufficiently establishes that the other person has committed an offence. A
mere doubt about involvement of the other person on the basis of the evidence
let in before the court is not enough. The court must also be satisfied that
circumstances justify and warrant that the other person be tried with the already
arraigned accused.
(vi) The court while exercising its power under sec. 319 of the Code must
keep in view full conspectus of the case including the stage at which the trial
has proceeded already and the quantum of evidence collected till then.
(vi) Regard must also be had by the court to the constraints imposed in
sec. 319(4) that proceedings in respect of newly added persons shall be
commenced afresh from the beginning of the trial.
(vii)The court must, therefore, appropriately consider the above aspects
and then exercise its judicial discretion - Sarojben v State of Gujarat (2012)1
SCC (Cri) 867: (2011)13 SCC 316.
Section 319 CrPC [now section 358] springs out of the doctrine judex
damnatur cum nocens absolvitur (Judge is condemned when guilty is acquitted
and this doctrine must be used as a beacon light while explaining the ambit and
the spirit underlying the enactment of sec. 319 CrPC. It is the duty of the court
to do justice by punishing the real culprit. Where the investigating agency for
any reason does array one if the real culprit as an accused, the court is not
powerless in calling the said accused to face trial. The entire effort, therefore, is
not to allow the real perpetrator of an offence to get away unpunished -
Hardeep Singh v State (2014)2 SCC (Cri) 86.
While explaining the scope of sec. 319 [now section 358] Supreme Court
Sarabjit Singh v State (2009) 16 SCC 46: (2010)2 SCC (Cri) 141: AIR 2009 SC
2792 observed: "For the aforementioned purpose, the courts are required apply
stringent tests; one of the tests being whether evidence on record is such which
would reasonably lead to conviction of the person sought to be summoned.
Whereas the test of prima facie case may be sufficient for taking
cognizance of an offence at the stage of framing of charge, the court must be
satisfied that there exists a strong suspicion. While framing charge in terms of
sec. 227 of the Code, the court must consider the entire materials on record to
form an opinion that the evidence if unrebutted would lead to a judgment of
conviction.
Whether a higher standard be set up for the purpose of invoking the
jurisdiction under sec. 319 of the Code is the question. The answer to these
questions should be rendered in the affirmative. Unless a higher standard for
the purpose of forming an opinion to summon a person as an additional accuse
is laid down, the ingredients thereof viz. (i) an extraordinary case, and (ii) a case
for sparingly (sic sparing) exercise of jurisdiction, would not be satisfied".
See also Bindaban Das v State (2009)3 SCC 329: (2009)2 SCC (Cri) 79:
Michael Machado v CBI (2000)3 SCC 262: 2000 SCC (Cri) 609: AIR 2000 SC
1127.
 Speaking of the courts power under sec. 319 [now section 358], five
Judge Bench in Hardeep Singh v State of Punjab (2014)2 SCC (Cri) 88:
(2014)3 SCC 92 Observed:
"A person not named in the FIR or a person though named in the FIR but
has not been charge-sheeted or a person who has been discharged can be
summoned under section 319 CrPC provided from the evidence it appears that
such person can be tried along with the accused already facing trial. However,
insofar as an accused who has been discharged is concerned the requirement
of section 300 and 398 CrPC [now sections 337 and 439] has to be complied
with before he can be summoned afresh."
See also Hardeep Singh v State of Punjab (2014)2 SCC (Cri)86: (2014)3
SCC 306.
Power under section 319 [now section 358] to be invoked before
pronouncement of sentence. - The power under sec. 319 of CrPC [now
section 358] is to be invoked and exercised before the pronouncement of the
order of sentence where there is a judgment of conviction of the accused. In the
case of acquittal, the power should be exercised before the order of acquittal is
pronounced. Hence, the summoning order has to precede the conclusion of
trial, by imposition of sentence in the case of conviction. If the order is passed
on the same day, it will have to be examined on the facts and circumstances of
each case and if such summoning order is passed either after the order of
acquittal or imposing sentence in the case of conviction, the same will not be
sustainable - Sukhpal Singh Khaira v State of Punjab AIR 2023 SC 1 (5-
Judges Bench).

Supreme Court Guidelines on summoning of additional accused. -

What are the guidelines that the competent court must follow while exercising
power under sec. 319 CrPC [now section 358]?
(1) If the competent court finds evidence or if application under sec. 319
CrPC is filed regarding involvement of any other person in committing the
offence based on evidence recorded at any stage in the trial before passing of
the order on acquittal or sentence, it shall pause the trial at that stage.
(2) The court shall thereupon first decide the need or otherwise to
summon the additional accused and pass orders thereon.
(3) If the decision of the court is to exercise the power under sec. 319
CrPC [now section 358] and summon the accused, such summoning order
shall be passed before proceeding further with the trial in the main case.
(4) If the summoning order of additional accused is passed, depending on
the stage at which it is passed, the court shall also apply its mind to the fact as
to whether such summoned accused is to be tried along with the other accused
or separately.
(5) If the decision is for joint trial, the fresh trial shall be commenced only
after securing the presence of the summoned accused.
(6) If the decision is that the summoned accused can be tried separately,
on such order being made, there will be no impediment for the court to continue
and conclude the trial against the accused who were being proceeded with.
 (7) If the proceeding paused as in para 1 above, is in a case where the
accused who were tried are to be acquitted, and the decision is that the
summoned accused can be tried afresh separately, there will be no impediment
to pass the judgment of acquittal in the main case.
(8) If the power is not invoked or exercised in the main trial till its
conclusion and if there is a split-up (bifurcated) case, the power under sec. 319
CrPC can be invoked or exercised only if there is evidence to that effect,
pointing to the involvement of the additional accused to be summoned in the
split-up (bifurcated) trial.
(9) If, after arguments are heard and the case is reserved for judgment the
occasion arises for the Court to invoke and exercise the power under sec. 319
CrPC [now section 358], the appropriate course for the court is to set it down
for rehearing.
(10) On setting it down for re-hearing, the above laid down procedure to
decide about summoning; holding of joint trial or otherwise shall be decided and
proceeded with accordingly.
(11) Even in such a case, at that stage, if the decision is to summon
additional accused and hold a joint trial the trial shall be conducted afresh and
de novo proceedings be held.
(12) If, in that circumstance, the decision is to hold a separate trial in case
of the summoned accused' as indicated earlier:
(a) The main case may be decided by pronouncing the conviction and
sentence and then proceed afresh against summoned accused.
(b) In the case of acquittal the order shall be passed to that effect in the
main case and then proceed afresh against summoned accused - Sukhpal
Singh Khaira v State of Punjab (2023)1 SCC 289 (5-Judge Bench) also see
Yashodhan Singh v State of U.P. (2023)9 SCC 108:(2023)3 SCC (Cri) 684;
Jhuru v Karim (2023)2 SCC (Cri) 509.

Definition of trial: - The word "trial" is not explained and defined under the
Code. An extended meaning has to be given to this word for the purpose of
enlargement on bail to include, the stage of investigation and thereafter.
Primary considerations would obviously be difference between these two
stages. Mary considerations would obviously be different between these two
stages. In the former stage, an arrest followed by a police custody may be
warranted for a thorough investigation, while in the latter what matters
substantially is the1606 proceedings before the court in the form of a trial. If we
keep the above distinction in mind, the consequence to be drawn is for a more
favorable considers action towards enlargement when investigation is
completed, of course, among other factors.
Similarly, an appeal or revision shall also be construed as a facet of trial
when it comes to the consideration of bail on suspension of sentence -
Satender Kumar Antil v CBI (2022)10 SCC 51.
Whether power can be exercised before pronouncement of
order/judgment. - Whether the trial court has the power under sec. 319 CrPC
[now section 358] for summoning additional accused when the trial with
respect to other co-accused has ended and the judgment of conviction rendered
on the same date before pronouncing the summoning order?
The power under sec. 319 CrPC [now section 358] is to be invoked and
exercised before the pronouncement of the order of sentence where there is a
judgment of conviction of the accused. In the case of acquittal, the power
should be exercised before the order of acquittal is pronounced. Hence, the
summoning order has to precede the conclusion of trial by imposition of
sentence in the case of conviction. If the order is passed on the same day, it will
have to be examined on the facts and circumstances of each case and if such
summoning order is passed either after the order of acquittal or imposing
sentence in the case of conviction, the same will not be sustainable.
Whether the trial court has the power under sec. 319 CrPC for
summoning additional accused when the trial in respect of certain other
absconding ac cused (whose presence is subsequently secured) is
ongoing/pending, having been bifurcated from the main trial?
The trial court has the power to summon additional accused when the trial
is preceded in respect of the absconding accused after securing his presence,
subject to the evidence recorded in the split-up (bifurcated) trial pointing to the
involvement of the accused sought to be summoned. But the evidence recorded
in the main concluded trial cannot be the basis of the summoning order if such
power has not been exercised in the main trial till its conclusion - Sukhpal
Singh v State of Punjab (2023)1 SCC 289 (5-Judge Bench).
Accused to be arrayed, if has a right of audience at the stage of
summonings. - Even in the cases where report under sec. 173(2) of the Code
[now section 193] is filed in the court and investigation records the name of a
person in column (2), or even does not name the person as an accused at all,
the court in exercise of its powers vested under sec. 319 can summon the
person as an accused and even at that stage of summoning, no hearing is
contemplated under the law - Anju Chaudhary v State of U.P. 2013 AIR SCW
245.

Offence not made compoundable, it can be compoundable. - Offences

which are not compoundable under sec. 320 [now section 359] cannot be
allowed to be compounded even if there is any settlement between the
complainant and the accused - Gulab Das v State of M.P. (2012)1 SCC (Cri)
421.