THE CODE OF CRIMINAL PROCEDURE, 1973 (ACT NO. 2 OF 1974) [25th January 1974]! An Act to consolidate and amend the law relating to Criminal Procedure. CHAPTER I PRELIMINARY BE it enacted by Parliament in the Twenty-fourth Year of the Republic of India as follows :— Short title, extent and S.1. (1) This Act may be called the Code of commencement Criminal Procedure, 1973.2 SYNOPSIS A short history of the Criminal Procedure Code Amending Act 45 of 1978 |. Major changes effected by the Code of 1973 |. Scope and Object of the Code ‘The new Code is an amending and consolidating Act . The basic principle underlying the Code |. Code exhaustive soe aene Aoueanne COMMENTS 1. A short history of the Criminal Procedure Code.—The existing law relating to criminal procedure (referred to in the book as ‘the o/d Code’) was contained in the Code of Criminal Procedure, 1898. That Code had been amended from time to time by various Acts, the more important of which were the amendments brought about by Central legislation in 1923 and 1955. The first Law Commission (hereinafter referred to as ‘The Commission’) presented its Report (the Fourteenth Report’) on the Reform of Judicial Administration, both civil and criminal, in 1958; it was not concerned with a detailed scrutiny of the provisions of the Code of Criminal Procedure, but it did make some recommendations in regard to the law of criminal procedure, some of which required amendments of the Code. A 1. Coming into operation on 1-4-1974 [see S. 1(3), post] . Assented to by the President, on 25-1-1974, as Act No. 2 of 1974, . Ss. 206-220 of the old Code have, accordingly, been omitted from the mew Code, in accordance with the 41st Rep., paras 3.5; 18.19; 23.1Chap. Preliminary dertaken by the reconstituted 2 S.A ly uni : 7 bsequently ommendations the Code was st ncrete form to the rect ati nce teeta of ings fl en . wt but ali Code, namely, the i made in the Fourteen! for the revision of the 7 969. on in September, | yy the Law Commission ! ‘41st Rep.) were examined carefully by A presented ission (: € ¢ The recommendations of the peste others, the following basic considerations: the Ge te should get a fair trial in accordance with the accepted (i) an accused pet 1 justice; ; / peace old 7 made to avoid delay in investigation and trial which is Ci) every, Ton Sy to the individuals involved but also to Society; and iii procedure ot be complicated and should, to the utmost extent @ fe dur tae ‘teal to the poorer sections of the community. i | Procedure Bill, 1970, was drafted on these lines. It was ferted ia apy Selost Committee of Parliament, whose report was presented to Parlia- ment ‘on 4-12-1972. The Bill, however, lapsed on the dissolution of Parliament. ection, the Bill was again introduced as the Code of Criminal pioctine Bik ipa embodying the recommendations of the Joint Committee, and was passed by the Rajya Sabha on 13.12.1972. The Lok Sabha, in its sitting on December 12, 1973, passed the Bill with 125 Amendments, and the Rajya Sabha adopted all these amendments on December 18, 1973. This new Code came into force on April 1, 1974.9 2, Amending Act 45 of 1978.—Within five years of the coming into force of the Code of 1973, it was extensively amended by the CrPC (Amendment) Act, No. 45 of 1978.5 The text of this book gives the Code as amended by that Act, and subsequent Amendment Acts 32 of 1988, 10 of 1990, Act 43 of 1991, Act 25 of 2005, Act 2 of 2006 and Act $ of 2009. 3. Major changes effected by the Code of 1973 : ‘A. Some of the more important changes made by the new Code with a view to speeding up the disposal of criminal cases are (a) the preliminary inquiry which precedes the trial by a Court of Session, otherwise known as committal proceedings,® is abolished as it does not serve any useful purpose and has been the cause of considerable delay in the trial of offences; (b) trial by jury has been abolished;? (©) provision is made to enable adoption of the summons procedure for the trial of offences punishable with imprisonment up to two years* instead of up to one year as at present; this would enable a larger number of cases being disposed of expeditiously; 4. Assented to by the President, on 25-1-1974, as Act No. 2 of 1974, 5. Received the assent of the President on 18-12-1978: published in Gaz. of India, 19-12-1978, Part US. 1, Ext, p. 569. 6. Ss, 206-220 of the ofd Code have, accordingly, been omitted from the new Code, in accordan withthe dst Reps paras 355 1819; 23.0. = nev Code in eesoriene Hence ss. 266-269, 274.283 of the old Code have been repealed (Commission's peti tia kee seen repealed (Commission's 14th Rep., Vol. 2. See 5. 2(w), (x), post, in place of S. 4(v), (w) of the old Code; the recommendation of the Commission that no change in this behalf was necessary (4st Rep., para 1.26) was not acceptableShort title, extent and commencement S13 (d)_ the scope of summary trials is widened by including offences puni it d v Punishable with imprisonment up to two years? instead of six months as at ; procedure will be adopted for all summary trials;!? ee ees Paenica (e) the powers of revision against interlocutory orders are taken away,!! as it h been found to be one of the main contributing factors in the delay of dics poe 3S cata ig rs in the delay of disposal of (f) the provision for compulsory stoppage of proceedings by a subordinate Court on the mere intimation from a party of his intention to move a higher Court for transfer of the case is omitted!? and power is given to the High Court to stay such proceedings in proper cases; (g) when adjournments are granted at the instance of either party, the Court is empowered to order costs to be paid by the Party obtaining the adjournment to the other party;!3 (h) Provision is made for the service of summons by registered post in certain cases;! (i)_in petty cases, the accused is enabled to plead guilty by post and to remit the fine specified in the summons;!5 @)_if'a Court of appeal or revision discovers that any error, omission or irregularity in respect of a charge has occasioned failure of justice it need not necessarily order retrial;!6 (k) the facility of part-heard cases being continued by successors in office available in respect of Courts of Magistrates is now extended to Courts of Session.!7 B. Some of the more important changes intended to provide relief to the poorer sections of the community sre : (a) provisions have been made for giving legal aid to an indigent accused in cases triable by a Court of Session; the State Governments may extend this facility to other categories of cases;!8 (b) the Court has been empowered to order payment of compensation by the accused to the victims of crimes, to a larger extent than is now permissible under the Code;!9 9, The Commission recommended that the limit should be one year. Pasliantent made it two years [sce 8. 260(1}(i), read with s. 2(w), (x), past). 10. Accepting the recommendations of the Commission [14th Rep., Vol. II, para 45; 4Ist Rep. para 22.6; see s. 262(1), post). 11, See new sub-sec. (2) to s. 397, post, there was no corresponding provision in s. 435 of the old Code. 12, As recommended by the Commission [41st Rep., para 44.26]; see s, 407(6), post, in contrast to 8. $26(8) of the old Code. 13. As recommended by the Commission [41st Rep., par: 24,62); sce Expl. 2 to s. 309, post, in place of 8. 344(1)(A) of the old Code. 14. As recommended by the Commission (41st Rep., para 6.6]; see new s. 69, post. 15. As recommended by the Commission [41st Rep., paras, 17.6 and 20.2}—see news. 253. 16. As recommended by the Commission [41st Rep., para 45.9]—see s. 464(2)(b), post. 17. As recommended by the Commission [41st Rep., para 24.77}—see s. 35, post. 18. New s. 304, poss, as recommended by the Commission (41st Rep., paras 24.34-24,39). 19. See s, 250 as amended and mew sub-sec. (3) of s. 357 and s. 358 [41st Rep. of the Commn., paras 20.11 and 46.12),Chap. !—Preliminary examination of @ witness for the 4 sl a is issued Mlefence including pleader’s fees may be commissiO? curred BY 20 a in ¥ « wc yy he section sy make representation against th vobe pad PY an opportunity Of yarrant trials.”! e recused will OE give aged in sessions and wart (a) the before itis in jishnen" | Oe ant chanee® iary from the Executive, by incorporating ec a on a Sereeary provisions in the vn of the High Court has been abolished 2} ~ ay Original Criial x ensbited™ (uy Ordinary on Presidency 1owns" BRS been reploced by meron itn (iii) o “pe Dual Man ect side, there will be Executive Magistrates, 2 , while n . Mags District Magistrate. anti the Peace has been abolis ed. i of Justice 0! (iv) The institution anticipatory bail’ (5 438, post). i de fo (v) Provision has been ma‘ ° ¢ oe ‘Object of the Code.—The object of the Criminal Lissa Code nessa on the Code) is to provide a machinery for the punishment of a refers substantive criminal law and to ensure to the accused a fair trial, for the Bain tof his guilt or innocence.” i i to punishment for offences is laid down in the Indian pent Cade eo a is fr the time being in force [s. 2(n)] the Criminal ct wides the machinery for imposing such punishment, except in so far Proce corded in any special Act (i-e., an Act other than the Penal Code) {ss. 4(2); 26(0)]}. Different Chapters of the Criminal Procedure Code lay down detailed provisions relating to the mode in which it is to be ascertained by whom an alleged offence has been wate ed and the mode in which it should be tried and punished by a competent Court. ‘These provisions may, broadly speaking, be divided into the following heads: 1. Pre-trial proceedings include information to the Police or to a Magistrate, inves- tigation or inquiry into the alleged offence {Chaps. XII-XVII] and procedure for bringing the person accused before Court (Chaps. [V-VII]; 2. ‘The Courts in which particular classes of cases are to be tried, the respective powers of such Courts and the classificati c for paver af rich Conta ification of offences necessary for the 3. Initiation of proceedings in Court (Chaps. XIV-XVII}; 4. Di ws < , Different kinds of trial and the procedure relating to each (Chaps. XVIII-XX1]; ee 20. See new sub-sec. (2) of 21 See. 2380, — 284, post, 4st Rep. of the Commissi 3. Geen op sa op XVIII of the new Cod 66-267 of | 24, See ss. 2(k); 16-18; 0, mateo 10 a Count of Sexton ae! Code have been omitted and Chap, 25. Willie v. Stare of MP, OfMP., AIR 1956 SC 2 26. Willie v. State of MP. AIR I9568C Lletiat,‘Short title, extent and commencement Ss 5. General provisions relating to bail, record i i judgment and the like (Chaps. XXIV. XXVIIP soon Branting of pardon, 6. Appeal, reference and revision to superior tibunals (Chaps. XXIX-XXX}; 7. Execution of the sentences passed by the Criminal Courts (Chap. XXXII}; and 3. The prevention of offence i The prevention $f offences and the powers of the Police and the public in this But though the CrPC is concerned with the adjective or procedural law, some of its provisions are substantive in nature, e.g., the provision relating to the offences [Chap. VIII}; maintenance of wives and children [Chap ix] 70 eemtOn oF 5, The new Code is an amending and consolidating Act.—The new Code of 1973 is an Act to amend and consolidate the law relating to crimi j Code of 1898 was. ig to criminal procedure, just as the old The new Code of 1973 replaces the Code of 1898, with vital changes which have already been indicated (pp. 2-3, ante). Nevertheless, its nature remains the same, namely, that it'is an amending and consolidating Act, Since there are certain special rules for the interpretation of a consolidating enactment, it would be useful to recount them here: _ The object of a codifying Act is not to declare the law relating to any particular point, but to embody in the form of a code the whole of the existing law contained in judicial decisions** ‘as well as statutes relating to a subject, so that the law may be ascertained ‘by interpreting the language used, instead of roaming over a number of authorities’.?° ‘The object is systematisation. The object of a consolidatings Act is to consolidate in one Act the provisions contained in a number of statutes, with ‘corrections and minor improvements’ as may be necessary to remove ambiguities and anoma- lies. The distinction between a codifying and a consolidating statute is that in construing a consolidating statute, there is a presumption (which is, of course, rebuttable) that there was no intention to alter the law, but there is no such presumption in the case of codifying statutes.2° In the result, cases decided before a code are usually no authority for its interpretation, though they may be referred to for the purpose of ascertaining the previous state of the law; on the other hand, in interpreting the provisions of consolidating statute, the previous decisions are prima facie relied upon,*! but the presumption is rebuttable and it may be shown that while consolidating the law, the Legislature introduced material changes, and that the framework of the new statute was different.>? However, Code is not only a consolidating Act but is also an amending Act. For the Purpose of construing a statute, which is a consolidating as well as an amending Act, the proper course is to have reasonable interpretation of its provisions®? and to apply the af : M normal rule of construction so as to give each word the meaning proper to the context: 27. Chapter XXXVI of the old Code 28. LRC. v. Hinchy, (1960) | All ER 505 (HL). 29. Robinson v. Canadian Pacific Ry., (1892) AC 481. 30. Bank of England v. Vagliano, (1891) AC 107 (144). 31. Smith v. Baker, (1891) AC 325 (349). * Fond Controller v. Cork, (1923) AC 647 (668). 630 a1p.636 (PC). |. Ramdas v. Amerchand & Co,, (1916) [LR 40 Bom 630 at p. I i 38. Grey vs IC, (1982) 3 AL ER GOS ap. 607 (HC), Tala Amar Sigh. Sate of Raton, ATR 1955 SC 504 at p. 526 : (1954) 24 Com Cases 537.Chap. I—Preliminary the main features of the init amending Code, . iso solange ‘w code, excePt when olherw stated. The ce the new COME Crgined im YE Ty the provisions of the ni le, with a since Pr gog have Deer ore Oe ol 4d Code whenever necessary. $0 sil, tne ing provisto ode—The Code, like all procedural laws, e Code crate them by the introduction of ‘ further f che to ets th a at anor . to fu abject 0 é ell-unders accord is ese The ot elresiablisbd red by a competent Court, if he is sere offence for which he fod thee he vith i i ; Ly is é of defending n, provi Satire rea es FS, wil Te si ial re enal nance yan sions i substatial prejudice. That, broadly quel , tiated unless the a ne Code is based: i ave Code providing a complete machi- The Code is an exhaustive C' mp 1 ee eat cst against judgments. It as provisions a ach ety ose erors, failure of justice and abuse 0 the process aeigh Court, Ths és made clear 18 popular Muthiah v. State. itis indiated in above judamen’ of the Supreme Co when the mate is oo specifically Heat with in he Code the i ee be ne peer 10 comet o cessary Courts bel Cour i ific provision to correct the f the Court. But when there is a specific pro” 3101 rT © the aos Court cannot invoke inherent power an¢ it cannot also go against the Sfeuiic provision of the Code by which ‘exercising inherent power. (2) It extends to the whole of India except the State of Jammu and Kashmir + Provided that the provisions of this Code, other than those relating to Chapters VIII, X and XI thereof, shall not apply— (a) to the State of ‘Nagaland, (b) to the tribal areas, but the concerned State Government may, by notification, apply such provisions or any of them to the whole or part of the State of Nagaland or such tribal areas, as the case may be, with such supplemental, incidental o1 i i i weit acivental ‘or consequential modifications, as may be Explanation. —In this section, “tribal areas” means the territories which immediatel Included in the ‘ci y petere he ais day of January, 1972, were 4 of the Sixth Scheduls am, as referred to in paragraph 20 local limits of the tiunleipalty of Shiny other than those within the 35. Willie v. Stave 35 Panic a of MP. AIR 1956 SC 16 121) ah v. State, (2006) 7 SCC 296 : (2006) + 2006) 3 SCC (Cri) 245 : (2006) 3 Crimes 23.Short title, extent and commencement S17 SYNopsis 1, Territorial Extent of the new Code 2. Proviso 7 3, Explanation 7 4. Special law and special jurisdiction & 8 COMMENTS 1, Territorial Extent of the new Code.—Materii this extent clause. The new Code applies to the whole of Tada eae oniy eed i (a)_ The State of Jammu & Kashmir) The Code of 1898 did i and the new Code cannot be extended to that State by Pariement beats at the Constitution (Application to Jammu & Kashmir) Order, 1950, as it stands, ti th Sais " res eat: 'as no legislative power over this State, with respect to ‘criminal It may be noted, however, that the provisions of the Kashmir Criminal Proced Code are, on many points, substantially the same as the Indian Code of 1898. mu (b) The State of Nagaland. As held by the Supreme Court, the Code of 1898 did not apply to Nagaland, which was governed by certain Rules made under the Scheduled Districts Act, 1874. The new Code continues that Position, excepting the preventive provisions in ss. 106-124; 129-153 (Chaps. X-X1), which apply of their own force. Outside the specified provisions, the spin of the Code may be applied? if not inconsistent with the Rules for this Administration of justice and Appeals, ¢.g., the provision in s. 438 of the Code." [See also the Proviso, below, which gives power to the State Government to extend other provisions of the Code, with or without modifications.] (c) The tribal Areas in Assam! Under the Scheduled Districts Act, 1874, as modified by the Assam Autonomous Districts (Administration of Justice) Regu- lation, 1952, the autonomous districts of Assam were governed, in the matter of administration of criminal justice, by Rules made under those Acts and not by the Criminal Procedure Code. The new Code continues that Position, excepting Chaps. VIII, X and XI of the Code. 2. Proviso.—Though the other Chapters‘ of the Code do not, by their own force, extend to Nagaland or the tribal areas, the Proviso to this Clause empowers the respective State-Governments to extend any provisions of the, Code to such areas or part thereof, as may be notified by that Government, with or without modifications of supplemental provisions.*3 37. CE. Mohan v. Commr. of Police. (1983) Crt 1182 (para 5) J&K; Ram v, State, (1983) CrLJ (paras 16-17) J&K. on 38. State 7 Nagaland v. Rattan Singh, AIR 1967 SC 212; Mowu v. Supa. (1971) 3 SCC 936 : | SCC (Cr) 184. on 39 Sone of Nagin v. Rattan Singh, AIR 1967 SC 212; Mowu v. Supdt, (1971) 3 SCC 936 SCC (Cr) 184. 40. Kulendra v. Union Territory, (1983) Cr) 1122 (Gen.)—A debatable decision a of 41, ‘See 6th, Sch. to the Constitution of India: Author's Constitutional (Pret India, (197, p. 479; Santha v. Bura, (1976) CrLs 1952 (para 10). presi Hall of 42. See 6th, Sch. to the Constitution of India; Author's Constitutio 7), p. 498; Soma v. Bure, (1976) CL.) 1952 (oa 10 aw of tia (Prentice ll of 43, See 6th, Sch. to the Constitution of India; Author's Constituti India, (1977), p. 479; Sankha v. Bura, (1976) CrL.J 1952 (para 10)Chap. J—Preliminary s.2 «tribal areas’ for the purposes of th Expl. ext 50 of the 6th Sch. to the Constitution, § wntioned 1 . nation-— si aa thy SHORE jin muntel “, on The new C\ code extends (0 Mant 8 Manipur.** . kim, 46 id g98 still applies © eh “aii, Ce fare sikkim. The & Under the old Code, Cs. (a)-(c) to s. (2) . al jurisdiction ie, namely, (2) The Police in the towns 4, Special laW snd On the sop o of Police in Calcutta, Madras and of Calcutta and Of vill ees thee Siate ‘of Madras; (c) Village police-officers in the a of villages Code of \ sate of Bombs inese exceptions, so that the Code will apply to all ed all ; i were governed bi The new Code has omit’ in the Presidency towns were gi y such povons Under the old Code vot other Local Acts, bul certain specific the special provisions tended ‘to them and the State Government had the power to rovisions of the bien ‘of the Code to such excepted persons. Instead of depending extend particular my the provisions of the new Code have ‘been made applicable to the on ications, athe Provision of Calcutta, Madras and Bombay, Hy subic to Commissioners additional power they may have nue to possess any the provision in &$ they MAY tt ofthe. Commissioner of Police, Caleuta, to under such special laws, e.g: rer of Police, Calcutta, ‘bi Sit ube assemblies.” Under s. 8(2), post, idency-towns grit processions oF Fo ne been declared to be “metropolitan areas’ under the Code “Criminal procedure’, being also be competent for the states toe sistent with the provisions of the Code. (3) It shall come into force on the 1st day of April, 1974.9 concurrent subject under the Constitution, it would nact special laws, in future, which are not incon- '4 As to such ‘special law’, see under ss. 4-5, post. Definitions. S. 2. In this Code, unless the context otherwise requires— (a) “bailable offence” means an offence which is shown as aie in mat oho Schedule, or which is made bailable by w for the time bei 3 -bail offence” means any other ‘fe force; and “non-bailable “Bail means th c releasc_of the accused from the custody of the officers of law and entrusting hi sitio the pave custody of persons who become bound as Sufctics 10 the new Code has made charge at the stipulated time or date. [In s. 438, post, 8 novel provision (for grant of “anticipatory bail” by the High ae M4. See 6th, Sch. 1 the . Constitutiog , ‘s. Som aca ocd 1352 Gant Author's Constitutional Law of India, Latest Edition: 46. Cheba v. Krish Baha na eca £1971 CrL1 679, is no longer good | 70 (aya) 143 (Sikkim) (para 6). aw | 8. | 49. Coming into ton, paras 1.14-1.20, BACH DPN 8 141974 Lee 5. 13, poss ‘Accented to bythe (0 by the President, on 25-1-1974,Definitions ia 2c) 9 or a Court of Session, to a person who hi Custody) but who apprehends arrest] © has not yet been arrested or taken into A ‘bailable offence’ is an offence where bail i ofbailable offences, thus, the Court or the ‘officerin-charge ai Fi torelease the accused on bal, provided he is prepared to give bal (= Whether an offence is bailable or not is to be ascertaine Code «where all offences are enumernted) or any othe Ta whi ee th new | hereun\ lo » , the offence i fence by anegligent act is bailable of murder is non-bailable, but causing death pL ree In the case ce-station i seatation i bound Any offence which is not ‘bailable’ under the law, as above, is non-bailable. The term ‘non-bailable’ does not mean that in no case is release on bail available when a is accused of such an offence. It only means that in such i 130 f u ’ , the granting of Pail is a with the officer-in-charge of the Police-station or the Coumt beion which pei, subject to the conditions and restri ions specified in 8. ‘arate new Code. (b) “charge” includes any head of charge when the ch contains more heads than one; "8 6 etaree COMMENTS 1. Charge.—See under s. 211, post. The framing of a formal charge is necessary in Warrant and Sessions cases [ss. 240; 228), but not in Summons cases [s. 251]. 2. Charge not defined.—Code does not define what a charge is. However, it is the precise formulatign of the specific accusation made against a person, who is entitled to know its nature at the earliest. A charge is not an accusation made or information given in the abstract, but an accusation made against a person in respect of an act committed or omitted in violation othe penal law Toroidal idding or commanding it. In other words, it is an accusation “Trade against ‘a person in respect of an offence alleged to have been committed by him. (c) “cognizable offence” means an offence for which, and “cogni- zable case” means a case in which, a police officer may, in accordance with the First Schedule or under any other law for the time being in force, arrest without warrant; COMMENTS ‘ A edime 1. Cognizable and non-cognizable cases—While from the standpoint of proc at the I cases are Sivided a ‘summons’ and ‘warrant’ cases,—from the point ofa Police-officer’s power to arrest with or without a warrant issued by a Magistrate, cases offences are divided into cognizable and non-cognizable. : ; h the Police may Col. 3 of Sch. I of the Code specifies certain offences for whic! a ee et ne oe paking, they are olfences which call for @ speed 21 : (2004) 3 50. Eshar Singh v. State of A.P., AIR 2004 SC 3030 : (2004) 11 SCC 585 : 2004 CrLI 50 crimes 38Chap. !—Preliminary 10 & 1d) | The power t0 arrest without warrant may also be investigation, 68. jaws. classifies ‘offences against other laws”, erred by othe item of Sch | of the ne ode imprisonment for 3 years and upwards Thus, he Mr them which are Pelhi Public Gambling Act, 1955. All offences under of the ver cognizable by s. 10A of that Act, and gable 88.340 '1935 nave been made COB tial . . Reel NET, wither ae "ancogiable, The eam. are ‘cogni : t without wé rs , All ah Naty pole oe nie ‘Act, 1956, are cognizable [s. 624]. 0 ler sane ffences - 4, Similarly, all . does not specify whether the offence Pe a sei ew, wile INE 29 aon i tobe determined with reference laws’ 5! If, however, the 1d be cognizable oF nOn-COBME Tr offences against other laws’."” It, , ~~ st Sch. Par 1 Casson this behalf, only that Police officer would be special Act specifies a particu’St © ss {to arrest without warrant. a competent to arr f distinction is that a Police-officer cannot investigate a non- Another point of cl: ‘order of a Magistrate having jurisdiction over such case Paice oe Yi ee ea without such order, his report becomes a ‘complaint’, s. {e the purposes of s. 190(1). This is made clear by the new Explanation to Cl. (d), low. Where, information discloses both a cognizable and a non-cognizable steve te ver we (4) to's. 135, post, makes it clear that the Police officer may treat the entire case as a ‘cognizable offence’, and investigate the entire case without the order of any Magistrate. 5? 2, ‘Case’ and ‘Offence’—1. The two terms are mot synonymous, although an offence always leads to a case and a case relates to an occurrence or transaction which may involve the commission of one or several offences.>* 2. When a Police officer receives information about the commission of a cognizable offence, and records the same, he is said to register a ‘case’. It may involve the commission of more than one offences and the power of the Police under Chap. XII to investigate relates to the investigation of a ‘case’ which would mean all the offences involved therein. 55 3. In the result, a final report or charge-sheet under s. 173 can be filed only after the ommpletion of the investigation, ie., the investigation relating to all the offences arising (@) “complaint” means any alley to a Magistrate, with a vie Code, that some person, committed an offence, but ‘gation made orally or in writing ‘w to his taking action under this whether known or unknown, has does not include a police report. — Sl. Avinash v. State of Maharashiva, 3B Aeeei ingen bona ition “laid d re : Thsipee OTS 265 (nari Pr oe Si Modv. v. State of A.F., AIR 1965 SC Ss, ypdarashavan v. C:B.1, (1984) CLI 1277 (panes ie, $5. Homies ¥. CB, (1984) Crs 1277 oe tod hace 2m van y. C.B.1., (1984) CrL3 1277 (paras 10-11) eer 11) (Ker (1983) CrL} 1833 (para 8) Born,Definitions — S.2(a) Explanation.—A report made b: " loses, after investigatio Y 8 police officer { tence shall be deemed to be the commission of g in @ case Which omplaint; an non-cognizable whom such report is made shall be deemed to nd the eolee Officer by omplai . SYNOPSIS Pistnant; Charges made by the new Code Object of a complaint Po Ingredients of a complaint - tt Reference to wrong statutory provision : u ‘Some instances of complaint B Explanation: Police-Report in a non-cogni 13 Police Report in cognizable cases pase nes 4 Order directing to file complaint under s, 340 C 1s ‘Who may be a complainant ree ” 16 (A) Where the complaint can be : 16 aameied pl made only by the person (B) Where the int can be i w ——e can be made only by specified person (C) Where no complaint can be made wit i Sanction ofa specified Authonty en ne Previous 16. Complaint and Information i Hi 11, Complaint and Police-report 3 eran eer COMMENTS 1, Charges made by the new Code.—This definition corresponds to Cl. (h) of s. 4 of the old Code, with the addition of the Explanation, to make it clear that ft report made by the police on an unauthorised investigation of a non-cognizable case is complaint”. 2. Object of a complaint.—The receipt of a ‘complaint is one of the modes according to which a Magistrate can take cognizance. of an offence [s. 190(1){a), post]. The definition in the present clause has been given a wide meaning since it includes even an ion. It may, therefore, be that no form is prescribed which the complamt must take. It may only be sai t there must be an allegation which prima facie discloses the commission of an offence with the necessary facts for the Magistrate to take action.*8 3, Ingredients of a complaint—The requisites of @ ‘complaint’, according to the present definition, are— ion, It need not be in any particular form. Thus, 2. (i) An aral®? 4 a © Thus. legram is thin letter_or tel addressed to the Magistrate may constitute a complaint wit the meaning of the Code, if it contains the requirements of the definition. oh Merlin © cota fer! - n ». It . 41st Rep. ofthe Law Commission, Vol. 1, para 126.2, gos ; i970 CrLI 1132 }._ Bhimappa v. Laxman, AIR 1970 SC 1153 (1156) : (197! i : Bhimappa v, Lazman, AIR 1970 SC 1153 (1156) : (1970) | SCC 665 : 1970 CL} 19 Bhimeppa v. Laxman, AIR 1970 SC 1183 (1156): (1970)! SCC 665 = » Sadiee v. Gaya Prasad. AIR 1941 Pat 144 22sz3Chap. !Preliminary hether kn 12 $24) be of the fact that some person, whether known or i fas ee nt tie i Negation Ti of Her which the offence is punis able oF the (0) mown, asc Taw unde t the validity of a complaint®? so as to om oe the section 0! joes not affect “an fakes cognizance of an offence jeclto rate who t ay jpcbmention of 8 wrong stjon of the Magist wy sti +t sets forth the facts, which, if proved, would take away the paint provided it sel i such cot . , 4 warrant conviction: i t disclose the ingredients of an ie petition in question does re anot amount to be an offence: i If, however, ni je, even y would constitul i ( id it would be liabl often ices complaint” as defined in ht 1)(4), an : ul cored nt ', 203, upon its bare perusa to be made re e, a report olice or some other made to a Magistrate. Hence, to the Poli s a ‘complaint’ (ii) Wt must yar cannot be treated a: P ao icing provision inthe pl. s.2(2), tHe report made 1, \, of course, under the deeming provision nut the complainant tha case ul Ww by a Police office is scene Paaposes oF PFs. 195(1)(ii), post: is the Police officer, say, 0‘ . , wv) The allegation must be made with a view of the Magistrate’s taking action®’ mder ih Code, as distinguished from, taking some administrative action. under the Code, 2. ich, i lead to a conviction. Hence, i int, which, if proved, would not a eee oe Magistrate with a prayer to proceed hinder 6 107, ’ es 133,72, 1457 or s. 125 (old's. 188) "4 do not consti plaint. s. 1107's, 133,7s. 75 (vi) [tis not imperative that the name of the accused should be mentioned. : 7% (vii) A complaint may be made against the person kngwn or unknown.’ “tte 77 - (viii) A complaint must disclose that an offence has Mere mention of the name of the accused without making any allegation about the commission of an offence is not a complaint.”8 (x Itis not necessary that a complain should verbatim reproduce in the body of the complaint all the ingredients of the offences he is alleging Bhimappa v. Larman, AIR 1970 SC 1153 (1156) : (1970) 1 SCC 665 : 1970 CrLJ 1132 63. Shyam Lal v. State, AIR. 1958 AlL 76. Gs Pebendra v. State of W-B., AIR 1972 SC 1607 (1609) : (1972) 3 SCC 414: 1972 CrLJ 1037. 65. State . Ismail. (1979) CrL 557 (para 7) J&K. Te} Singh v. State, AIR 1965 All $08 (510) 67. State of Orissa v. Nazrul, (1988) ) CL 1310 (para 4) Mad Bhimappa v. Laxman, AIR. 1970 SC 1153 (1156) (1970) 1 SCC 665 : 1970 CrLI 1132. Sito Jac ALR 989 Cal 55, suf AIR 1930 ANLS3; Manicka, in re, AUR 1968 Madl 2: 11. mam, (1900) 27 Cal 662. Meads 72. (1897) 24 Cal 729 (733), 13. Chath v. Niranjan, (1893) 20 Cat 7 TA Jaswant, $6 Bom LR 819, *. JS. Ded: Shyamapada, 41 Cal 1013: Sevany 3; Sevantitalv 2 Dill Site of Gujrat AIR ion a 1969 rtd 63 on) SN diay. State, 988 CLINOC 13 (, JE, Sardar y. Stas of Punab, oka 7% Rejoh Bij. Ste NCTo Beth Ge | fate of Gujarat, AIR 1969 Guj 33 (Para 11) (P&H). 999SC 1216 (1999) 3 sco 259 - 1999 CrLJ 1833.pefinitions 1a A . 2d) 13 lar format of i (a) There is no partic of a complaint, Nome : tal A peition edesed to the Magic conuining an lege wae offence has committed and ending with a prayer that th allegation that an dealt with is a complaint. at the culprit be suitably 4, Reference to wrong statutory provision.—It is the . i Bae offe fuets in the complaint that gives jurisdiction to the Magistrate disclosed from the complainant mentions & wrong Act of a wrong section to found the offen therefore, the said that there 1s NO ‘complaint’ | fence, it cannot be Where therefore the facts alleged in the complaint di Magistrate should take ‘Cognizance of the complaint and any enor the ware hs statutory provision ks aa ps Rayo founded on such error in the complaint, my . _ : ep aint, sere uly be rectified y lagistrate, provided it is done in proper time to avoid The fact that the complainant was a political opponent, the complaint i 5 t fil cannot be thrown out. Ultimate test is whether the allegations have substance ete 5, Some instances of complaint—In accordance with the foregoi = following have been held to be complaints : regoing principles, the 1. A ‘protest petition’ challenging the correctness of the Final Report** submitted by the Police under s. 173; or a similar petition filed before the submission of the Police Report, asking the Magistrate to proceed with the trial,*> or to take some action as upon a complaint under ss. 200-204.8 2. But, in order to be taken as a ‘complaint’, a protest petition must contain the names of witnesses as well as the other ingredients of a complaint, as noted at pp. 11, 12, ante.®” Even where the protest petition fulfills the requirements ofa complaint, the Magistrate is nor bound®S to take cognizance of the case on. the basis of the protest petition as a complaint; he may take cognizance under §. 190(1)(b), on the basis of the ‘case-diary” submitted with the police fepor, even though he disagrees with the ‘final report’ submitted by the Police.8% % If the question subsequently arises whether the case should be treated as a complaint case or a police-case, itis to be seen whether the Magistrate resorted to the procedure under ss. 200 and 202, which must be followed where he has taken cognizance upon a ‘complaint, if he has not resorted to that procedure and pe 80. Mohammed Yousuf v. Afiay Jahan, AIR 2006 SC 705 = 2006) 1 SCC 627 : (2006) 1 SCC (Cri) 406 : 2006 CrLJ 81. Maya Ram v. Sujit, (1967) SC [Cr 250164, dated 16-3107) 82. May. ji 50/64, dated 16.3.1967}. Fee ea Pi SAR (2007) 1 SCC 1: (2007) 1 SCC (CH Prakash Singh Badal v. State of Punjab, AIR 2007 SC 1274 84. State of Bihar v. Sakaldip, AIR 1966 Pat 473 (para 7); [see however, Bains v. State, (1980) CHL 1308 (1311), Abiinandan ¥. Dinesh, AIR 1968 SC 117)- 85, Sadice v. Gaya Prasad, AIR 1958 All 76. 86. Rameshwar v. Bhatu, AIR 1958 Pat 1! 87, Qasim, Sate, (1984) GrLd 1677 (para 5) All; Tula . Kishore, AIR 1 459: 1978 CrLI 8 88, Sanju v. Harihar, AIR 1970 Pat 26 (para 4). 89. ‘Sure of Bihar v, Sakaldip, AIR 1966 Pat 473 (para 7): (see howeve 1308 (1311); Abhinandan v. Dinesh. ‘AIR 1968 SC 117]. 90. Basudeo y. State of U.P., (1983) All Cr R 513. 977 $C 2401 : (1977) 4 SCC st, Bains ¥. State, (1980) CrLdChap. I—Preliminary papers submitted with 14 820) Diary and othe Pr jurisdiction?! wah the 4 pis mind tO the case pallenged as withou as applied bis on cannot izable ease—Under the old Code, Police in a Dons es poll 1 pollee REPO rion on this Point 6, Explanation’ oct of judicial opinion the present Clause was altered by the Joint there was a sharP added to ie by the Police as to the commission of a 1. The grat of Hear that arepor ‘complaint’ under S. 190(1)(8) and not as a ~ ittee®? to make , 8 rt may arise out of the investi Committee?® 10 MT ot shall rank: though Su Per esgaion, tums out to be a gation into Hie “offence. where police initially investigates ina ‘non-cogn! only those cases Prable one.” tion t0 5. 20) corr out to be a non-cognizable one. izable case but the 0! the result WO wuld be different where a case relates to both post, In view of s.155(4), past, Ue HT" mapa the ren of a ‘police report’ and @ ‘complaint made by a Police ‘The difference in ts of a pole Sn a non-cognizable case’ is as fo ; ; officerin® Police-officer is & complainant within the purview of the Fal 0 i, Where the on-appearance ‘may entail acquittal of the accused, under 2564 ) en jon cannot be invoked where the case was instituted on a ‘police report . . on jppeal from an order of acquittal shall be 6 i, The limitation for spe ent isa Police officer or other public servant, while Tir only 60 days in the ease of other complainants. Ives the controversy as to whether the report made by a on ee Cate a ievervant deemed to be a Police-offcer, under special laws, voce ees cpolice report’ forthe purposes of s. 2(d) above or s. 190(1)(b), post, which now uses the technical expression ‘police report” instead of a ‘a report in writing ..... povic by any police officer’ which was interpreted in a wider sense in various cases.”” ‘Pass bas been done by inserting a new definition of ‘police report’ in CL. (1) of s. 2 (see below) 2s meaning a “report forwarded by a police-officer tinder sub-sec. (2) of s. 173” of ths Code By reson of tee chan would be clear under te new, Code tha! the lowing reports a Police-officer would be a ‘Police-report’ foi f $ T90(10) ofthe Code — “ the purposes o 91. Qasim v. State, (1 shore, Sarin y Slee (1984) CHL 1677 (para 5) All; Tula . Kishore, AIR 1977 SC 2401 : (1977) 4 SCC 2 Rape na, ee iw it App. 3 tthe 37%h Rep of the Commission. he + Committee on the Bill of 1970, p, 7 (on Cl. 2); Biswanath v. State, (1978) CrL} 318 ‘WM. State of UP. v. Bhura, (1985) CrLy 5: 1 (19 136 (para 5) under i UP (para 3) All %s, Paaih sehahiersana tek 1966)]; Rama v. Satin Ofee. TSO} oe eee, ie Thaker (1996) 11 SCC 557 : 1997 SCC (Cr) 298 : (1996) 4 Crimes % Th iw ben a Ca C984) CL 1897 (paras 14-16) Ker Reve h v. State, X, ° will ot be ‘good, under ie no 1063 Cal 191 or State of MP. v, Abdul, AIR. 1963 ‘Slote of Bihar v. Sakaldip, AR 1986 Pa 1308 (1311), 4 473 (para 7), Ys Abbnandan Dinesh atm 1968 Sey Se, However, Bains v. Sie, (1980) CHL)Chap. !—Preliminary 16 8.2) ders. 157 which the Polloe officer has to make at the i. inder $s. °~ izal = ) A preliminary SPAT vestigation athe ed wader cumlody of « ee aoe Pv 7o, while fOreATIO® evidence, after investigation, not ro @) Re hen there appears trate, W! SEs dean wt, under S's - (©) Final peda charge-shee : tin the ofd Code, in some ane he on police rere under s. 190(1)(b), on any es definition o i: of “Magistrate could take 5179 of 173." eld that a M cr ited nee ae i“ ‘ded by the Code by ine th sefaiicn fs troversy ha jon, according to W splice monn Ci. eof the pete nt ewoliee ort for the purposes of, 190116) : ie Te cat he Ce Ecler even a toe oo jdt me , ‘ SE Soa ce Slade mai il en qinformsicer. See, further, under Cl- Onze seanienis ieac S ii other report submil y a Police 7 Say, 1ST. invent result is ted by a Magistrate only as @ ‘complaint’ for the purposes of taking cognizance. aint under s. 340 CrPC.—An order of the Court 8, Order directing © ted unde 340 CrPC is not a complaint.'! directing a complaint to be filed under ition in the new Code makes 9. Who may be a complainant.—I. The present definition in . it clear that a police officer cannot be a complainant except when he submits a report, as a result of his investigation in a case, as to the commission of a non-cognizable case. Barring this, anybody may be a complainant under the Code subject, of course, to statutory exceptions. ! 2. Since the law of crimes is founded upon the theory that a crime is wrong done to the State, the criminal law can, as a general rule, be set in motion by any member of the public, unless, the law says otherwise (e.g., in cases coming under ss. 195-198).'3 Hence, as a general rule, any person, having knowledge of an offence, may set the law in motion by a complaint even though he is not personally interested or affected by the offence, '4 eg., a private individual, with the requisite sanction, may be a complainant under s. 137 of the Customs Act; or s. 97 of the Gold Control Act; or the Prevention of Corruption Act Be a public officer may be a complainant, e.g., a Prohibition Officer,!® a Food f the investigation, by which is 8 Lal Khan v, Emp,, AIR 4 alo» Eg AIR INS Lab 43 48 Rat Sue, AIR 1952 HP 81 (87). As commend . ssion (paras 1.26(¥), 1.27(i It Sarina vee of Osa, (1980) CL) 363 (Or) (Pa 5) 0) 1270 1a ree Gupta Bhagwan Devi. AIR 1996 SC 509 : (1994) 4 SCC 657 : 1994 SCC A rope gees AIR 1984 SC 5 (para 5) : (1983) 4 SCC 701 + 1984 C hay Mo 1 Mi {gas 6) (1984) 2 SCC S00: 1984 CrLJga7 || NY CALI Is Antulayv. Nayak a Maral Rajmaltu, (1978) Cr} 1360 (para 3) AP. “ar. 1S Paitin (1889) 13 Bom $90 (600) . . . Poddar, AIR 1984 SC 5 : AIR 1984 SC 718 (para 5) : (1983) 4 : i 7H (2 CGS FO! | 1984 CHL 1: Anauay v. Nayak ye Munici 5 7 Ie a. ae res ea Sent (oni 27 Lan Narayan v. Rampur, AIR 1957 Pat 687: noe Mali «Cop Soe A192 ny 99k od Narayan . Rampur, AIR 1957 Pat 687Definitions 8.2¢ ae @ 7 3, An association being a ‘person’ is entitled to it registered js immaterial for this purpose, though it may been Te Peat iis mot wi * for the purposes of a A registered partnership firm may file complaint.!9 4, Section 195 offers instances of complaints made by * ,. the words ‘any person aggrieved’, the two Provisos to that cum THOUeh, other than the person aggrieved being the complainant 20 template persons 5, The exceptions to the above general rule may be classified under severel heads" “ANY person may be a complainant (A) Where the complaint can be made only by the person aggrieved, Subject to exceptions where the aggrieved idiot, lunatic or an infirm or sick person (or a specified cases), a complaint for breach of Piomation and offences against marriage by the offence [ss. 198-199], (B) Where the complaint can be made only by specified person or authority. (i) Complaint for contempt of lawful authority of public servants can be made onl; by the public servant concerned or by his superior authority [s. 195(1)(a)]. Gi) Complaint for certain offences against public justice or offences relating to documents given in evidence can be made only by the Court in connection with whose proceedings the offence is alleged to have been committed or by its superior Court [s. 195(1)(b)]. (ii) Complaint for certain offences against the State or for certain classes of criminal conspiracy can be made only by or under authority from the State Government or some officer empowered in this behalf [s. 196]. (iv) Complaint for adultery with a married woman can be made only by the husband of the woman, or, in his absence, by some person in whose custody the woman was when the offence was committed (with the leave of the Court) {s. 198]. (v) A complaint under s. 199(2) [old s. 198B] can be made only by the Public Prosecutor. Person is a purdanashin woman, mi Person serving in the Armed Forces @ contract to attend a helpless person, can be made only by some person aggrieved (©) Where no complaint can be made without the previous sanction of a specified Authority, i i is i i for @ Prosecution of Judges, Magistrates. or certain classes of public servants, fo offences ea ined while acting or purporting to act in the discharge et their official duties, can be made only with the previous sanction of the State Govern ment or the Central Government, as the case may be [s. 197]. ! int in writis i ith the previous Gi) Ac in writing may be made by the Public Prosecutor, wit ) sanction ofthe ‘quthorised Secretary” of the Government convened, fr ree cution for defamation committed against the President; the Vice-| Governor, a Minister or a public servant [s. 199(2)). SS 18. Misrital v. Rajmallu, (1978) CrLJ 1360 (para 3) AP. 19. Churiaram v. Aggarwal Sweets, 1990 CrlJ 2460 (Del). : LI 943, 20. Ashwin v. Stare of Maharashra, AIR 1967 S. 983 (985) : (1967) | SCR 807 : 1967 CrChap. I—Pretiminary 7) gions of the Code itself, a special statu 1 oe oe pein ei qualifications for eligibility to filg 6, past from 5) post) ty id een in that special statute must prevail, e.g, e 22 (see further ony that c8Se 1954. Iaint. theo np, Prevention of F008 ACY Sei Tan.companies ACE IPSS | A 95804 Section 621, 0 de and Merchandise Marks Act, section 89 of the T! ‘Act, 1923.25 jal Secrets ‘ section 130) ofthe ome! Iy enable & P articular authority to make a complaint, 7, But provist ich merely © ividual to complain, under the general law.26 jions whi na ht of any In would not ake away nn : public servant from the filing of a complaint but he cannot septa the Etemment ‘or some other person.” 7 Information. —l. A person who has knowledge of an offence 10, Complaint and Informer agistrate under s, 190(1)(b) read with s. 200, or el (a) Mion to the Police under s. 154 or 155 or to the Magistrate under (b) give int s. 190(1)(C)- 2, The following points of distinction as ‘A. When the information is lodged with the Police, the Police is to make investi- ion and then to submit a Report to a Magistrate empowered to take cognizance of the gat offence [s. 157] While a Magistrate who receives a complaint proceeds to try the case [s. 204] ifhe is competent 10 "take cognizance of it [s.201], unless he considers an inquiry or investigation to be necessary before proceeding to try the accused [ss. 203-204], a police officer with whom information has been lodged can only make an investigation and report the result of such investigation to a Magistrate empowered to, take cognizance of the offence on such report (s. 173(2)]. OF course, instead of starting the investigation immediately on receipt of the information, the Police officer may make a preliminary report to the Magistrate for his orders [s. 157]. B. Giving information to the police is to be distinguished from the power of a (Boor te comizance of an offence upon information received from any person Under s, 190(1), a Magistrate ma i: i I ), y take cognizance — 0 eure yeni of an offence, either. i) upon a police report; or (iii) upon information Tecei bis own knowledge or geen any person other than a Police officer, or upon Adulteration Act between the three modes should be noted: So |} Surgimani. Sax z le of Orissc 5 ESS Eryoes memo en 24. Suraimaniv. Sate a eo Bef {is90) CrLJ 363 (Or,) (Para 5). 26. Shankar gy eb AIR 1969 Cal 535 (=, OF? (Para 5). LIDS" Shiva, 1984) en 9425 (ara Ana v. Haridas, * (1984) Cry y 28 (Cal); Union of India V. Subodh, (1984) CxLJ 367 (Cal).Definitions of a complaint as well as of mn the statement of a priv: of informat the two: Private person, there are essential poin . 8.2 3, Though in the case of a ta) 19 ion, the M; (i) In the case of a complaint, the ; : Magi: i in the case of information, the lagistrate acts on the motioy n of | i int i Bistrate acts on his own initiating or? ainan (ii) In the case of a complaint, the Magistrate is asked t. have been made and he has then fo deca 4 Tecord his reasons under i it h a case, he may then make an inquiry hi i inquiry or investigation or dismiss the complaint (under ® 20) has see a reasons. In the case of information, if the Magistrate chooses not to take ary action, he need not pass any order of give any reasons, ay (iii) Information is a genus of which complaint is a species. An informat complaint unless it satisfies the ts bey is nota [see pp. 11-12, ante], requirements of the definition in s. 2(d) But an invalid complaint may be treated as an informetion,28 except in cases, which the Code says, can be instituted only by a complaint or with the sanction of the prescribed authority [ss. 195-199]; and subject to the condition imposed bys 11 } ” _ (iv) On a complaint the complainant is first examined on oath (s. 200], unless it is covered by any of the exceptions in the Proviso to s. 200, e.g., where it has been made by a public servant in the discharge of his duty. But there is no obligation to examine the informant, whether the Magistrate takes cognizance of the offence upon the information, or refuses to do s0.2° (v) Where the Magistrate takes cognizance upon information, the accused has a right to get the case transferred to another Magistrate or committed to the Court of Session, for trial [s. 91]. There is no corresponding right when the Magistrate takes cognizance upon a complaint. (vi) When information is given to the Police it is recorded in a particular form [ss. 154-155], which is technically known as the First Information Report (F.LR.). Information may be given to a Magistrate in any form; in fact, any communication received by a Magistrate (from a person other than a Police Officer) which does not come under the definition of a ‘complaint’ [s. 2(d)], is an information. (vii) When the Magistrate acts on a complaint, he acts on the statements made by the complainant, but when the Magistrate acts on information, he acts on his own initiative, and no one has asked him to issue process. Hence, if the Magistrate chooses not to act on information, he need not record any reasons or to pass any order.3! 11. Complaint and Police-report.—Under s. 190(1), a Magistrate can take cogni- zance of an offence either upon a complaint or upon a police report apart from swo mow a 28, 29. 30. 3 State of Kerala, in the matter of, AIR 1969 Ker 111 (para 9); Jagia v. Sant, (1977) CrLJ 523 (paras 14-15) Pat (DB). State of Kerala, in the matter of, AIR 1969 Ker 111 (para 9): Jagia v. Sant, (1977) CrLJ 523 (paras 14-15) Pat (DB). Prasad v, State of A.P., (1985) CrLJ 1930 (para 5) AP. Prasad v. State of A.P., (1985) CrLJ 1930 (para 5) A.P.20 S.2%e) Chap. 1—Preliminary order. . 2(d), on the other hand, says that a complaint does not include a police-report This distinction is important, for, though for the purposes of cognizance there is no difference between the two, there are important differences in the incidents of a complaint and a Police-report. Thus,— (a) Under s. 250(1), where the accusation is frivolous, action may be taken against the ‘complainant’ or the ‘informant’ (b) A case instituted upon a complaint may be dismissed under s. 203, or the Accused acquitted, for non-appearance or death of the complaint under s. 256. ‘But no such order can be in a case instituted upon a police-report. (6) When the Police refuses to prosecute by submitting a ‘final report’; the Magis: trate can still take cognizance on the complaint of the person aggrieved [s. 190(1a)] or suo moru [S. 190(1)(c)}? or under Art. 190(1)(b), after rejecting the conclusions of the Police officer but upon the materials collected by him. The definition of ‘police report’ in s. 2(r), read with the Explanation of s. 2(d), as inserted by the new Code, makes it clear that a report by the police on a non-cognizable case-without the order of a Magistrate under s. 155(2) or under any law other than the Code, which does not authorise the submission of a charge-sheet under s. 173(2), is to be treated as a complaint; and not a ‘police-report” for the purposes of s. 190(1) and consequential provision®S (see pp. 14-15, ante]. (e) “High Court” means— (@) in relation to any State, the High Court for that State; (ii) in relation to a Union Territory to which the jurisdiction of the High Court for a State has been extended by law, that High Court; (iii) in relation to any other Union territory, the highest Court of criminal appeal for that territory other than the Supreme Court of India; COMMENTS 1. High Court.—Clause (i) of the definition refers to the High Court constituted for each State and Union Territory under Art. 214 of the Constitution. [See also Art. 366(14) of the Constitution]. (f) “India” means the territories to which this Code extends; COMMENTS 1, India.—This definition means that wherever the word ‘India’ is used in the Code, it shal refer tothe territories mentioned in . 1(2), which have been explained at pp. 6-7, ante. 32. 33. Ey Lajpat v. State, (1983) CrLJ 888 (paras 26-27) Del. Abhinandan v. Dinesh, (1967) 3 SCR 668 : AIR 1968 SC 117 : 1968 CrLJ 97. Bains v. State, (1980) CrLJ 1308 (1311) : AIR 1989 SC 1883 : (1984) 4 SCC 631 4st Rep. of the Commission, p. 103, paras 15,74-75.Chap. I—Preliminary 22S.) SYNOPSIS 1. Ingredients of an ‘investigation’ “ 2 Freee iStanuang omer to examine witnesses : 7 4. Evidentiary value of statement of such witness 25 COMMENTS 1, Ingredients of an ‘investigation’.—In order to come under this definition, the following conditions must be satisfied: (i) It must be a proceeding under this Code. There are various special Acts, other than the IPC. which create offences. (a) If such special Act also provides for the mode of investigation of such offences, the provisions of the Code relating thereto shall be excluded. Such proceeding for investigation of that special offence will nor then come under the present ion under 8. 2¢h). (b) If, however, such special Act makes no provision for ‘investigation’, the Provisions of the Code relating to ‘investigation’ shall apply s. 4(2), post, so that such Proceeding shall come in under the present definition.4* (ii) The purpose of the proceeding must be the collection of evidence. (iii) Such proceeding must be conducted either (a) by a Police officer: or (b) by any Person authorised by a Magistrate in this behalf, —no1 being a Magistrate. The definition in s. 2(h) is, however, not exhaustive, as the word ‘includes’ indi- cate.” Hence, where a special enactment (e.g., Karnataka Forest Act, 1963) empowers an officer othe: than a Police officer to investigate into offences under that special Act, it cannot be argued that all subsequent proceedings under the Code shall be without jurisdiction as there was no investigation under s. 2(h).50 Thus, though the power to forward a report under Art. 173 of the Code does not belong to a Customs Officer under the Customs Act, 1962, or an officer of enforcement under the Foreign Exchange Regulation Act, 19735! certain power of investigation have been conferred on those officers*? so that it cannot be held that s. 167 of the Code is not applicable to an investigation made by the officers under these Special Acts,53 2. Investigation, Inquiry, Trial—The terms ‘Inquiry’, ‘Investigation’ and ‘Trial" denote successive stages ina criminal proceeding inthe order in which they are arranged: A. ‘Investigation’ is a proceeding conducted by a Police officer or by any oth person authorised in this behalf by a Magistrate, under e.g, s.202(1), The object of investigation is the collection of evidence. Investigation consists generally of the follow- 47. Dethi Adnm. ¥. Ram Singh, AIR 1962 SC 63 (67) : (1962) 2 St 694: 48. Fazaul v. State of Karnataka, (1984) CrLJ 1625 (para Ke 94514962) 1 Crt 106, 49. Director v. Deepak, (1994) 1 SCJ 599 (paras 115, 122), 50. Fazaul v. State of Karnataka, (1984) CrLJ 1625 (para 8) Knt. SI. Ramesh v. State of W.B., (1969) 2 SCR 451; Badaku v. State of Mvsore, (1966) 3 SCR 698. $2. Ramesh v. State of W-B., (1969) 2 SCR 481; Badaku v. State of Mysore, (1966) 3 SCR O98 53. Ramesh v. State of W.B., (1969) 2 SCR 451; Badaku v. State of Mbaore, (1966) 3 SCR oon,Definitions S.2(h) 23 ing steps.*4 (1) Proceeding to the spot; (2) Ascertainment of the facts and circumstances of the case; (3) Discovery and arrest of the suspected offender; (4) Collection of evidence relating to the commission of the offence which may consist of (a) the examination of various (including the accused)5> and the reduction of their statements into writing, if the officer thinks fit; (b) the search of places or seizure of things considered necessary for the investigation and to be produced at the trial; and (5) Formation of the opinion as to whesher con the material collected there is a case to place the accused before 4 Magistrate for trial and if so, taking the necessary steps for the same by the filing of a charge-sheet under s, 173.3° 4 = . Investigation includes al! proceedings under the Code for the collection of evidence conducted by the police officer or by any person other than a Magistrate and ends with the formation of the opinion as to whether with the materials collected there is case to go to trial against the accused.5” Investigation usually starts on information’® relating to the commission of an offence given to an officer-in-charge of a police station and recorded under s. 154 of the Code. But he may hold investigation without information (s. 157].* If, from information so received or otherwise, the officer-in-charge of the police station has reason to suspect the commission of an offence, he or some other subordinate officer deputed by him, has to to the spot to investigate the facts and circumstances of the case and, if necessary, to take measures for the discovery and arrest of the offender. %. 61 If, upon the completion of the investigation it appears to the officer-in-charge of the police station that there is no sufficient evidence or reasonable ground, he may decide to telease the suspected accused, if in custody, on his executing a bond [s. 169]. If, however, it appears to him that there is sufficient evidence or reasonable ground, to place the accused on trial, he is to take the necessary steps therefor under s. 170 of the Cede. In either case, on the completion of the investigation he has to submit a report to the Magistrate under s. 173(2) in the prescribed form furnishing various details. The hall-mark of an investigation under the CrPC is the ‘police report under 8.173: 54. HLN, Rishbud ¥. State of Delhi, (1955) 1 SCR 1150 (1157) : AIR 1955 SC 196 ; 1955 CrLJ 526; State of MP. Mubarak, AIR. 1959 SC 707 (711) : 1959 Supp (2) SCR 201 : 1959 CxLJ 920. 55. Including their medical examination (vide ss, 53-54). post, where necessary [Ananth v. State of AP, AIR 1977 AP 1797 (para 13)], conducting a raid or laying trap to detect bribery [Maha Singh ¥. State, AIR 1976 SC 449 (para 37)] : (1976) 1 SCC 644 : 1976 CrLJ 346; Sailendra v. State of Bihar, AIR. 1968 SC 1292 : (1968) 3 SCR 563: 1968 Crit 1484, 56, HN. Rishbud \. State of Delhi, (1955) | SCR 1150 (1157) : AIR 1985 SC 196 : 1953 CrLJ 526; State of M.P v. Mubcrak, AIR. 1959 SC 707 (711) : 1959 Supp (2) SCR 201 : 1959 CrLJ 920. 57. Union of India v. P.P. Hinduja, AVR 2003 SC 2612 : 2003 CxLJ 3117 : (2003) 6 SCC 195. 88. State of UP. v. Bhagwant, AIR 1964 SC 221 (224) : (1964) 3 SCR 71 : (1964) 1 CxLI 140; Rugmini v. State of Kerala, (1987) CrLJ 200 (paras 5-6) FB. 59. State of UP. v. Biggwant, AIR 1964 SC 221 (224) : (1964) 3 SCR 71 : (1964) 1 CALI 140; Rugmini v. State of Kerala, (1987) Cel 200 (paras $-6) FB. 60. HN. Rishbud v. Stave of Delhi, (1958) 1 SCR. 1150 (1157) : AIR 1955 SC 196 : 1958 CrL 526; State of MP. Mubarak, AIR. 1959 SC 707 (711) : 1959 Supp (2) SCR 201 ; 1959 CrLJ 920. + Stale of UP. v. Bhagwant, AIR 1964 SC 221 (224) = (1964) 3 SCR 71 : (1968) 1 CrLY 140; Rugmini v. State of Kerala, (1987) CtLJ 200 (paras 5-6) FB. 62. Raj v. Union of india, (1981) CeLJ 97 (para 21) SC; Stare of U.P. v. Durga, (1974) CrLI 1468 (1469) : AIR 1974 SC 2136 : (1975) 3 SCC 210; Balkishan v, State of Maharashira, (1980) Cet} 1424 (1438) : AIR 1981 SC 379 : (1980) 4 SCC 600.——_ Chap. 1—Prei;,, m4 s.2h) ‘eliminary i ti the Court cannot direct the inves ublis prosecitor before filing charge-shect. Pp ile ‘investigation’ refers to proceedings conducted by the police OF pict B. (a) While “invest get ond inquiry’ relates to any proceedings of a Ander other than a Magismaies my where an accused has been placed before a Magny” or Court, prior 10 ‘wim ut also where the Magistrate wants to ascertain whether cee has ith an ed an offence and whether he should be put on trial. ‘ may be either in respect of an offence or of a matter whi (by Secondly. ap iraHt he former head falls—inquiry of warrant cases. prin’ Sh ‘ssange (Chap. XIX). Instances of inquiry relating to matters other than offences are.” charg Sor ne purposes of security for keeping the peace (Chap. VIII); Proceedings iter es. 114-148; proceedings for maintenance of wives and children (Chap. IX), jon officer to seek the opinion gp object of investigation is to collect evidence, the object of inquiry is to detetshng the uth of falsity of certain facts with a view to taking further action thereon ‘An inquiry may be ‘judicial” or ‘non-judicial’; ‘preliminary’ or “local’. (d) Investigation in terms of s. 156(3) Cr.P.C. cannot be equated with enquiry as both are defined differently in s. 2(h) and s. 2(i) Cr.P.C. C. The word ‘tria? is not defined in the Code. The definition of ‘inquiry’ simply suggests that a trial is not an inquiry. A proceeding before a Magistrate, under the Code is, therefore, either an inquiry or a trial. However trial is clearly distinguished from inquiry and inquiry must always be the forerunner fo the trial. (i) A wial is a judicial proceeding which ends in conviction or acquittal.®® All other proceedings, having different results, are inquiries. (ii) As has been already stated, the same proceeding before a Court may be “inquiry” at an earlier stage” and ‘trial” at a later stage. Thus,— (a) Ina sessions case, the trial commences only after the charge is framed”! [s. 228] (b) In a warrant-case, the proceeding is an inquiry up to the framing of the charge. Prior to that, the accused may be discharged [ss. 239, 245]. Trial begins when the accused is charged and then the question before the Court i whesher the accused is to be convicted or acquitted on the charge so 63. Sarala v. T-S. Velu, AIR 2000 SC 1731 ; (2000) 4 SCC 459 : 2000 SCC (Cri) 471 : 2000 CLI 64. Hoshide v. Emp., AIR 1940 Cal 97. 65. HN. Rishbud v. State of Dethi, (1955) 1 SCR 1150 (1157) : AIR 1955 1955 CrLI 526; State of MP . Mubarak, AIR 1959 SC 707 (711) : 1959 Supp (2) SCR Son lovecat 920. 66. Cremehbhai Vasudevbhai v. State of Gujarat, (2009) 6 SCC 576 : (2009) 3 SCC (Cri) 76 : 2009 Cibjadharan v. State of Kerala, AIR 2004 SC 536 : (2004) 1 SCC 215 : 2008 SCC (Cri) 260 : 2004 68. Tuneswar v. State of Bihar, (1978) CrLJ 1080, 69. Hoshide v. Emp., AIR 1940 Cal 97, {eee 5) Pat grB). 70. Laxminarayan, in re., AIR 1928 Bom 390. 71. Palaniandy v. Emp., 32-*ad 218. 72. Haridas v. Saritulla, \$ Ca\ 608 (FB), 67,Definitions S.2) 25 (c) But in a summons-case, there being no formal charge, the trial begins as soon as the accused is brought before the Magistrate and the particulars of the offence are stated to him [s. 251]. There is no prior inquiry stage in this, case. In all these cases, thus, the trial commences “when the case is called on with the Magistrate on the Bench, the accused in the dock and the representatives of the prosecution and the defence, if the accused be defended, present in Court for the hearing of the ae, and ends with the sentence. Hence, arguments and judgment form part of the trial. The omission of any definition of the word ‘trial’ suggests that it should not bear the same meaning under all the provisions of the Code, but should be construed according to the context of each section.’ Thus, for the purposes of withdrawal from prosecution . 321 (old s. 494), the word ‘tried’ would include the stage of committal by Magistrate, under s. 209 (old Chap. XVIII).76 (iii) While, as stated earlier, an inquiry may relate to matters other than offences as well,”? a trial may be only in respect of an offence.’* Thus, a proceeding under s. 145 is not a trial, and an inquiry held by the Police under the orders of a Magistrate under that section is not an investigation. (iv) The term ‘inquiry’ is wider than ‘trial’ because while trial presupposes the idea of an offence, inquiry relates not only to offences but also to matters which are not offences, such as security proceedings (p. 21, ante).8!+ 8 ‘As regards offences, inquiry stops when trial begins; hence, all proceedings before a Magistrate, prior to the framing of a charge or the statement of particulars of the offence alleged, which do not result in conviction or acquittal can be termed as inquiry’ *? (vi) Trial ends with pronouncement of the judgment. 3, Power of investigating officer to examine witnesses.—See under ss. 160-161, post: 4. Evidentiary value of statement of such witness —See under s. 162, post (i) “judicial proceeding” includes any proceeding in the course of which evidence is or may be legally taken on oath; W) 1.86 a 73. Dagdu v. Punja, AIR 1937 Bom 55. 74. Neamat v. Hanuman, AIR 1931 Cal 626 (632). 75. State of Bihar v. Naresh, AIR 1957 SC 389 (394) : 1957 SCR 279 : 1987 CxLt 567- 36. ‘Site of Bikar ¥, Naresh, AIR 1957 SC 389 (394): 1957 SCR 279 : 1957 CrL1 67. 17. Ali Mahomed v. Tarak,(1908) 13 CWN 420. 78, Surja, AIR 1948 Mad 510. 79. Surja, AIR 1948 Mad 510. 80. Konetiraju v, Subbaraja, AIR 1954 Mad 1019. 81, State of Bihar v. Naresh, AIR 1957 SC 389 (394) : 1957 SCR 279 : 1987 Cel 567, 82, Alm v. Taufig, (1982) CxLJ 1264 (para 7); Gulati v. Birmani, (1986) Crs 770 (para 8) Del. 83. Alin v. Taugig, (1982) CrLJ 1264 (para 7); Gulati v. Birmant, (1986) CrLJ 770 (para 8) Del. 84, Pravad v. State, AIR 1951 All $49. 85. Ch Maha Singh v. Stave, AIR. 1976 SC 449 (paras 37-38) : (1976) 1 SCC 644 : 1976 Crd ue $6. CE Maha Singh State, AIR 1976 SC 449 paras 37-38) :(1976) 1 SCC 644 1976 CHL} 46.Chap. 1 Preliminan, 2 8.0 ay a ex, mukhtera, adVOCale, vakil, attomey, in view of the Provisions Kates Act, 1961. day es Act that even any person other than an Advogs, 2. Pleader.—This definition 2313 pleader for the accused, provided Wt Advocates Acts MEL with such permission, therefore. even an outsider icy permission is obtained Ted on behalf of the accused. But even a duly ApPointeg accused™ can appeat Oh Sut the permission of the Court.°: The permission ™ay be — came ‘50 ac vag only? and may be granted or withdrawn at the discretion af for a parnicul the Cour. ji in vi . . Claus, and in view of ss. 9 J Prosecutors nota “plead” under this Claus, Bema aie, ea rie APP. can only conduct the prosecution and cannot be Permitied to defend the accused. Power-of-attomey holder or the heirs of the deceased complainant cannot be treated as heirs of the complainant.” ‘A non-advocate can only plead for any party only on the permission of the Cour?! r) “police report” means a report forwarded by a police o olticer ora Magistrate under sub-section (2) of Sec. tion 173; Under ‘our’, a co. COMMENTS 1, Changes made by the new code—l, This is a new definition, added on the recommendation of the Commission,” to do away with the controversy, under the old Code, as to whether an unauthorised report made by the Police in non-cognizable cases and whether a report other than the final report would constitute a ‘police-report’ within the meaning of s, 190(1\(c). The instant definition makes it clear that the expression ‘police-repon throughout the Code, would refer to the ‘final report’ under s, 173(2)_ () in cognizable cases; and (ii) in non-cognizable cases, where the investigation is undertaken under order of a Magistrate under s. 155(2). [see, further, under s. 173, post] 2. Under the new Code, in addition to a definition for investigation in s. 2(h), @ separate definition for ‘police report’ is given by s. 2(r). This coupled with the newly — $1. Harishankur v. Girdhari, AIR 1978 SC 1019: T.C Mad s Sige, 1999 a ou 2092 : AIR 1999 SC 1385 - (1999) 3 SCC 614. alt Dele Sexi “ - Harishankar . Girdharl, AIR 978 SC 1019: \- Distrie as Aide, 1999 SA SN my 9S i, Mite rie od Ss as 63. Harishankar y. Girdhari, AIR-1978 SC 1019; T.C. Mathai v. District and Sessions Judge, 1999 CrLJ 2092 : AIR 1999 sc 1385 : (1999) 3 SCC 614, & farribala, AIR 1962 Pat 244. . Haris) v. Gi ETL, "4 SoBe OD A SC Mt Seis 66. Dorabshah, AIR 1926 Bom 218; : i aiken, in re, AIR 1928 Bom 3: (orishankar oy a sn PSE NE GS ee re nt tit 9 ® Koopman Attar. (1986) CL) 1022 (paras 5.6) Mad, a 7G W. Dison sen 208 SC 48 (2004) 12 SCC $09 : 2008 CHL 112 cn FG Masts /udge, AIR 1999 SC 1385 : (1999) 3 SCC 614 : 1999 72. lst Rep. para 1.26(v), phenarammc v. Kuppuswami, AUR 1937 Mad 937 (FB).Definitions S$.) 33 introduced sub-section (5) of s. 167 brings out the distinction between investigati the police report on which a Court is to take cognizance. The report carmot mow bes to be an integral part of investigation. The introduction of s. 167(5) in the Code, cannot have the effect of invalidating the investigation done within the period of six months or enabling the Court to stopping the filing of Police report under s. 1732). If the investigation done during the period of six months discloses an offence, a police report may be founded on it and the Court can take cognizance of the same... lo investigation done within the period of six months is not rendered invalid merely because the investigation is 01 completed and further investigation is stopped.’3 2. Ingredients of a ‘police report.—Read with s. 173(2), post, it would appear that a ‘valle report’ in order to come within the present definition must, satisfy the following conditions: |. I must be a final report submitted on the completion of the investigation. ii, It must be submitted by the officer-in-charge of the Police station. iii, It must be submitted to a Magistrate empowered to take cognizance of the offence on a police report. iv. The report must be submitted in the form prescribed by the Stats Government and must contain all the particulars specified in sub-see. (2) of s. 173. Once the foregoing conditions are satisfied, the report would not cease to be a ‘police report’ simply because the documents mentioned in sub-sec. (5) of s. 173 have not been submitted along with the report. That sub-section lays down an independent obligation, apart from the definition.”# If the police report was not filed in complete form with all material_papers contemplated by s. 173(5), Cr.P.C., it cannot be held that the report was complete.” 3. Police report to be submittechtfore the Magistrate.—When on the basis of the FIR lodged with the police station, the Officer-in-charge of the police station forwarded the report to the Commissioner of Polide as provided in s. 96 of the Bombay Police Act, 1951, the High Court directed the Officer-in-Charge of the Police station to submit the said report to the concemed Magistrate who alone can pass any judicial order on that basis which the Commissioner of Police cannot do.”* (8) “police station” means any post or place declared gene- rally or specially by the State Government, to be a police station, and includes any local area specified by the State Government in this behalf; COMMENTS 1. Police Station.—In the absence of a declaration by the State Government, « beat house is not a police station, so that an information lodged there, does not amount to @ First Information Report’? There is nothing in s. 156 or any other provision of the Code that there cannot be two police stations in respect of the same area. ee 73. State of W.B. v. Fakguni, (1993) 3 SCC 288 (para 8) : (1993) 2 Crimes 321 Fh, Mate of HP. v. Gud, (1983) CLI 402 (paras 10-11), 34, RES; Ansar Rahman, 1998 (1) CHIN 284 (Ca, ns B. Dinkar v, N.B. Hirbe, 1997 CrLJ 617 : (1997) | Mah LJ 412 (Bom). Srimama, AIR {960 Cal $19.Chap. 1 Preliminary 36S. 2(¥) ) sub-division” means a sub-division of a district; COMMENTS pains the expression as used in ss, 63}44) (v) _—This definition ex 0). Sateen under s. 7(3). post 20(4), ete. ; “agummons-case” means @ case relating to an offence, ang not being @ warrant-case; COMMENTS 1. Summons case.—Sce under ‘Warrant case’, below. Swa) “victim” means a person who has suffered any loss 9, [(wa) “viet d by reason of the act or omission for Which cause injury ed person has been charged and the expression the accus victim” includes his or her guardian or legal heir;] COMMENTS 1. Expression “‘victim"’ defined—By the Code of Criminal Procedure (Amend- ment) Act, 2008 (Act 5 of 2005), the expression “victim” has for the first time defined in Clause (wa), This has come into force with effect from 31-12-2009. This new clause introduces a definition of “victim” to confer certain rights on the guardians and legal heirs of the victims (vide notes on clause). For the first time, Criminal Procedure (Amendment) Act, 2008 (5-of 2009) confers certain rights to “victim” as defined in s. (wa), namely : (1) By adding a proviso to sub-section (8) to s. 24 of the Code, the victim is enable to engage an advocate of his choice to assist the public prosecutor in a criminal case in which the'victim is concerned; In s. 157, the second proviso has been inserted that in relation to evidence of rape, recording of statement of the victim shall be conducted at the residence of the victim or in place of her choice and as far as practicable by the woman police officer in presence of her parent or guardian or near relative or social worker of the locality; Section 157A has been inserted for preparing a compensation scheme for the Victim by every State Government in co-ordination with the Central Govern- ment: and In s. 372 a proviso has been inserted by which the victim has been given a right to prefer an appeal against any order passed by the Court acquitting the accused or convicting him for lesser offence of imposing inadequate compen- (x) “warrant-case” means a case relatin 7 ig to an offence puni: shable with death, imprisonment for life or imprisonment for aterm exceeding two years; Q) GB 4) KS § Inserted by the Cod i. © of Criminal Procedure (Amendment) Act, 2008 (5 of 2009), S. 2 (w-6- 34-12-2009)Definitions Sa) 37 SYNOPSIS 1. Changes made by the new Code 3) Distinction between ‘Summons-case" and *Warrani-case* 7 3. Points of difference between ‘summons’ procedure and ‘warrant’ ~ 0 procedure . Case" * 9 COMMENTS 1. Changes made by the new Code.—The existing definition of “ws ” amended to secure that offences punishable with imprisonment "for yee is exceeding Mo years would be tried by the summons-case procedure. In its Fourteenth t,87 the Law Commission recommended that for securing expeditious disposal of a farge number of cases. particularly those under special laws, summons-case procedure should be prescribed for offences punishable with imprisonment up to three years instead of one year as at present. Although in its Forty-first Report.%® the Commission did not recommend any change, it was considered necessary by the Select Committee that the existing limit of one year should be raised to two years for securing greater expedition in the disposal of a larger number of cases. This was not likely to result in any hardship to the accused as summons procedure secures all the essentials of a fair trial although some formalities are dispensed with.*? 2. Distinction between ‘Summons-case’ and ‘Warrant-case’—I. The sole test for differentiating a summons-case from a warrant-case is the measure of the punishment prescribed by the Code for the offence to which the case relates. It is a warrant-case if the offence is punishable with (a) death, or (b) imprisonment for a term exceeding two years (which includes imprisonment for life). All other cases arc summons-cases, irrespective of the question whether the accused could be arrested without a warrant or whether a ‘summons was actually issued in the case or not 2° 2. The definition refers to a single offence, but where a person is charged for several offences under different provisions of the substantive law, the proceeding should be as follows: (i) The warrant procedure is to be followed where out of the same transaction different charges arise against the same accused,*! or against different accused”? persons, and some of them fall under the definition ofa ‘warrant-case’ and some under the definition of a ‘summons-case’. (i) Conversely, a warrant case cannot be split up into its component parts, in order to try each of them under the summons procedure: 3. Whether a case is to be tried under the summons procedure or the warrant procedure is to be determined at the commencement of the trial, and the warrant proce- dure being more formal and detailed, a trial which had commenced under the warrant procedure cannot be converted into a summons case, to the prejudice of the accused.” In 7. 14th Rep. of the Commission, Vol. 2, pp. 723-24 lst Rep.,. para 1.26, following 37th Rep., para 89. Notes on Clauses. 99. Public Prasecutor v. Dawood, AIR 1957 Andhra 977 (973). 91. Kanji, Atk 1940 Bom 413. 52. Mappitaisami, AIR 1949 Mad 76. 93. Ganga, AIR 1921 All 282 (284). 54. Ganga, AIR 1921 All 282 (284); Amirbi, AIR 1953 Nag 192Chap, 1. ial the Court finds that the offence ;. re tral under the warrant procedureoxe® Mable . the Court finds trial of summons case, id ty 1 aot of encase it should proceed de d20¥0 under re offen i competent to try the warrant case.% Apart rh ai on upon & Magistrate tying o furan ease un ceeding 6 months, to re- case fe Saree Te ect) “in the interests of justi" wap : to hit fit appears procedure, 4, points of difference between LAs sated eatli Preliy 38 S.208) mn in cour en if oye mst com acase, such on cae, NE ‘summons’ procedure ma warrant ine y the tial in Chaps. XIX [ss. 238-250] and XX fs, 6)"il of point of difference is that.in warrant cases, a ‘charge’ musts cos. 240] and he i t0 be adjudged innocent or guilty gq it ss Sammons. case. no charge need. be. framed, fut the particulars of hich ¢ is accused aré.t0 be. stated to him [s. 251] and evidence js taken rs rete successive Sages under the (vo procedures iy a Cmte mmenons-case sims at a speedier disposal of ease, jy Ui) The procedure tO the aceused: is brought before’ the Magistrate, the agistte shall ask him if he has any cause to show why he should not bec secre accused pleads guilty, the Magistrate has a discretion to conviet te ASused Tothvith, without going into any evidence [ss, 252-253} rama jhe Abs has.no, such, discretion to convict the accused ama ‘rig he srused shill be asked whether he has say nes make, only after the charge is framed. 11 is then, that the accused gets the opportunity of pleading guilty and the Couft has the discretion to convict the Suit plea [SS. 241-242, 246(2)-(3)]. cseTon sich plea [ monscase.no charge need be framed [s. 251}. But in awarrant case, a charge musi be framed against the accused if the Magistrate of opinion that a case has Beea.made out by the prosecution. audthat the accused should be tried (ss. 240(1);.246(1)} (iii) _Ina.summons case instituted upon complaint, if the complainant absents him- self'on any day fixed Tor heating, the accused is enter tS BE acquitted, unless the, Magistrate dispense with the psisorialanendaneé af” the complainant Ig guaan-ase insted ypon compluin, the Magistrate has, ina similar cae epee power to discharge the accused and this disctoaey POWEr of THE Magistrate to been framed; and {vo conditions; it can be exercised only (a) until the charge has QW) Tra Suninins coe sn, Conpeundable or nonssagnizadl 249). Ia apy eee Zon compli. i is eompeten. forthe comp- mia , at any eer for Permission 0 witha he complaa [6255 Pan OF fin des In warrant en . that whet severe has 8 power to withdraw only to a limited extent ert charge aa y Sonvicied of any of there yee aBains the accused and the accused his with the consear atthe Coat witha i comp] ot the prosecution officer may, remaining charge or charges (s. 224]. 95. Amirbi, AIR 1953 Nag 193 ee 96. Latchanna, AIR 1987 Mad 129 the offence is conConstruction of references 83 3% 4, ‘Case'—The word ‘case’ which is used in various sections of 1 i defined, and is to be understood in different senses according to the coutent in ‘ict its used. (a) In the context of provisions relating to trial, it ordinarily means a Proceeding for the prosecution of a person alleged to have committed an offence, and whieh vege, ither in discharge. conviction, or acquittal of such accused person.’ This is theres in nition of summons-case in s, 2(w) and warrant case ine 24x) ons in Chaps. XX and XIX. (b) More technically, it refers te an rae ssed and the evidence by which the State proposes to prove the guilt of the accused, as in ‘the case for the Prosecution’ [s. 226]. (c) In some Provisions, it refers to an original proceeding as distinguished from an ‘appeal’, as in se. 406-400, put an appeal against acquittal was held to be a ‘case’, in the generic sense (d) In « stil wider sense, i refers to proceedings anterior to trial .g., a cognizable or non-cognizable case (pp. 9-10, ante), in connection with the powers of police to investigate, arrest and 2c), (1); Chap XII. [See also pp. 9-10, ante.] (y) words and expressions used herein and not defined but defined in the Indian Penal Code (45 of 1860) have the meanings respectively assigned to them in that Code. COMMENTS 1. Applicability of the definition given in the IPC.—The following definition in the IPC, inter alia will be applicable for interpreting the corresponding expressions used in the new Code: the like. LPC. New Code (a) S. 8 Che’) (a) S. 125(1 (4)? (b) S. 349 (‘force’) (b) S. 456(1). (c) S. 503 (‘criminal intimidation’). ()S. 456(1). (d) S. 19 (‘Judge’) (d) 8. 297(1)(a). (e) S. 21 (‘public servant’) 4 (€)S. 195(1)-(2). A Govemment Company is not a public servant under s. 21 of the Indian Penal Code, but every employee of that Government Company is a public servant But the application of the definition in the Penal Code is excluded if the context of the word or expression in the CrPC requires a different meaning.© Construction of refe- S. 3. (1) In this Code— (a) any reference, without any qualifyin, words, to a Magistrate, shall be construed, unless the conte: otherwise requires— ae Gantapalli v. Gantapalli, (1897) 20 Mad 470 (474) FB; Edmund v. Asstt. Collector, AIR 1967 nj 189, GE. Mansoor v. State of MP., (1971) ll SCWR 592 (para 13). reefa.v, Sahib, (1983) CrLJ 412 (para 7). . 826 : Mohd. Hadi Raja v. State of Bihar, AIR 1098 SC 1945 : (1998) 5 SCC 91 : 1998 CrLd 2 (1998) 2 Crimes 284. 17 : 2009 5. National Small Industries Corporation Lid. v. State, AUR 2009 SC 1248 : (2009) | SCC 40 SCC (Cri) $13, Fatapaltiv. Gantapalti, (1897) 20 Mad 470 (474) ) FB; Edmund v. Assit. Collector, AIR 1967 PunCHapTER IL CONSTITUTION OF CRIMINAL COURTS AND OFFICES Classes of Criminal S.6. Besides the High Courts and the Courts Courts. constituted under any law, other than this Code, there shall be, in every State, the following classes of Criminal Courts, namely— (i) Courts of Session; (ii) Judicial Magistrates of the first class and, in any metro- politan area, Metropolitan Magistrates; (iii) Judicial Magistrates of the second class; and (iv) Executive Magistrates. SYNOPSIS. 1. Changes made by the new Code . 87 2, Separation of the Executive from the Judiciary : Executive and Judicial Magistrates : 37 3. A. Classes of Criminal Courts under the new Code 9 1. The High Courts 9 2. Sessions Courts 59 3. Judicial Magistrates i 60 Powers of Judicial Magistrate 4, Metropolitan Magistrates 60 5S. Executive Magistrates . 60 4. “State” : e $. ‘Criminal Court’ 62 6. B. Courts Constituted under any law other than the Code—"Courts constituted under any law" 63 COMMENTS 1, Changes made by the new Code—{a) Abolition of Magistrates of the Third Class. (b) Separation of Judiciary from the Executive, by dividing Magistrates into two classes—Judicial and Executive. 2. Separation of the Executive from the Judiciary : Executive and Judicial Magistrates—The revised set-up of Criminal Courts and the allocati isteris functions between two. categories of Magistrates, under the new Code, are intended to bring about separation of the Judiciary fromthe Executive, as far as poss ‘As a consequence of the separation there will be two categories of Magistrates,. namely the Judiial Magistrates and the Exe strates [s. 6), the former being 37Chap, I—Constition of Criminal Courts and oy 86 ices igh Court and, the latter und HP Froud speak, factions which ae essen! in em of the Mudicial Magistrates while Tunctions pid erature will be the concern oF the Executive Magistnc” # ; functions allotted to the Executive (Ch. s. 444 (a) For pestorsig the District Magistrate, the Additional [hts arte, ther nee necessary), the Sub-divisional Magistrates and the other suborgint Mane Magistrates. These last ones will not be classified into First, Second and Theg Facet ads tey wil ll be designed as Executive Magistrates [s. 20} and Spe Executive Magistrates [s. 21] a icial side, for euch district (other than a Metropolitan area) there wil) be se erioaeat ‘Magistrate {s. 12(1)] who will correspond to the District Magia ‘on the Executive side. He will be a senior Magistrate whose important function will be 19 guide, supervise and control other Judicial Magistrate whose important function will be to guide, supervise and control other Judicial Magistrate in the district. He will himsetp tay important cases (including cases where there are approvers) and will have powers 1 impose a sentence of imprisonment not exceeding seven years [s. 29(1)]. In addition to the Chief Judicial Magistrate, there will be Magistrate of the Firs Class and Magistrates of the Second Class on'the judicial side, apart from Special Judicial Magistrates [s. 13]. Third Class Magistrates are considered unnecessary,! and have been abolished by the new Code, In determining the number of Courts of Magis trates and their location, the State Government is required to act in consultation with the High Court. The power to define local limits of jurisdiction is conferred on the Chief Judicial Magistrate, subject to the control of the High Courts [s. 14(1)}. The High Coun has the power to designate certain Magistrates as Judicial Sub-divisional Magistrates for exercising specified powers of supervision [s. 12(3)]. Under the old Code, there were certain special arrangements in respect of the cities of Madras, Bombay and Calcutta, which are called Presidency-towns; magisterial func- tions, mostly of a judicial nature, were discharged by a special category of Magistrates called Presidency Magistrates, Usually, persons appointed to these posts had special qualifications or experience and are paid higher emoluments. Although the reasons for such special arrangements are historical, the system has been found useful in respect of Such big cities, where crimes are sophisticated and the volume of work is heavy requiring quicker disposal of cases. It has since been extended to certain other cities by local la. Agreeing with the Commission, it was Proposed not only to continue the system with Some modifications but also to enable its extension by any State Government to other big itis within the State where the population is not less than one million (to be called Peal areas) by means of a notification [s. 8(9)]. The existing designation of as Magistrates will be changed to Metropolitan Magistrates (s. 16(1)] Inder the old Code, in Presidency-towns and certai i bef _U ; fain other cities there were Bie Magistrates ‘and some of the functions of a District Magistrate were discharged Commisconimissioner of Police and some by the Chick Presidency Magistrate. The co hae pine that this arrangement should be changed and these cites This recommendation of the Sees 84. Sub-divisional Magistrates like other places a Commission was not approved by the Joint Committee,’ but Government has implemented the Commission's pi and the Bill of 1972 has been 5° the control of the s) tunder the control of the Government [3s 9, 15. in pature will be the ce police” of administrative i —_—_ 1. Commission's 41st Rep, para 2.7. 2. lst Rep, para 2.1347 3. ON S*eson Clauses on the Bill oF 1970 as pom bythe Joint Committee, p, 239.Classes of Criminal Courts 8.6 59 by Parliament that a metropolitan area shall also have a District Magistrate [s. Soci] and Sub-divisional Magistrates to discharge executive faaons [6 204]. nS 3. A. Classes of Criminal Courts under the new Code.—Criminal Courts are divided into the following categories by the new Code for th divided lata the follow pories by the new Code for the purpose of application of |. The High Courts Each of the States in India has a High Court, which stands. atthe head of the Judiciary in the State and all these High. ete ih [s. 374(2)], reference and revisional jurisdiction [s, 395 ex seg] over the inferior Criminal Courts. I has already been pointed out that under the new Code, the High Court shall have no Ordinary Original Criminal Jurisdiction,‘ e.g., to try a sessions case in the Presiden¢ towns. The words “High Courts”. in the present section therefore,-refer-to-the-entreerdi nary criminal jurisdiction {vide s. 374(1), post] or the Admiralty jurisdiction of the His ‘ourts of Calcutta, Bombay and mS Cls. 245 and Ee of the Letters Panes and the jurisdiction to take over on transfer from any subordinate Criminal Court, for trial before the High Court itself under s. 407(1 iv) [old s. $26(1)(iii)}, apart from their jurisdiction as Cours of appeal or revision (Chapts. XXIX-XXX, post). Under this extraordinary original criminal jurisdiction, for instance, the High Court shall be competent to try a case which has been brought before it by commitment by Fate, Which has been reserved by 5. 26, post (notwithstanding the abolition of its” finary original jurisdiction), a sessions case arising Within the Jurisdiction of Tie Migh ‘eg., on the river Hooghly), which the City Sessions Court has no jurisdiction to The procedure to be followed by the High Court in this extraordinary jurisdiction, is ferred to in s. 47% 2, Sexsions C led into one or isions_and there. is a Court of for each division” presided over by a Sessions Judge appointed by the State ‘The State Government may also appoint Addiuonal and Assistant Sessions ion Courts {ss_7-9], according ns Court has. got appellate and revisional jurisdiction over th Criminal Courts (ss. 374(3); 397-399; 449(1)}. ions Court has also got original jurisdiction to. try..what.are known-as ions cases” but it has no power to take cognizance of such cases unless they utted to it by a Magistrate [ss. 20%a), 226], excepting where a Public Prosecutor makes a complaint as to an offence of defamation having been. committed” by a_person_against_the President of India ther_specified dignitaries [s.199(2)}, and also where it exercises its po nder §. 344,10 summarily try a witness for giving false evidence. iferior lst Rep. of the Commission, para 3.1-3.5 Asoke y. State, (1977) CHN 625 (paras 6-10). See Author's Constitutional Documents, Latest Edition. Asoke v. State, (1977) CHN 625 (paras 6-10). Asoke y. State, (1977) CHN 625 (paras 6-10). Asoke ¥, State, (1977) CHN 625 (paras 6-10).sy Chap. Constitution of Criminal Courts andy, 60S ley Judicial Magistrates a 3 een outside the ‘metropolitan ae (oe r, 28 14 1953 CHLS 542 $6 Asinarain v. Ep AIR 1946 Pat fo V7: AIR 1952 SC 4 198 47. Emp. v. Usman, AIR. 1987 Bom 409, 48, Udroram, 33.CiLS 990 992), 49, Adamji Umar Dalal y. Siaie ‘of Bombay, 1952 §¢ ee tombay, nam: 2 SC 14: 1953 CH 50. Mubherjiv. Stote, AIR 1969 All 489 (para io SEDER SPSL SI. Jagat y. Slate of MP. (1966) 2 SCR 322 (326), 52. State v. Drupati, AIR 1965 Bom 6 : (1965) 1 Cr Is,sentences which High Courts and Sessions Judges may pass $8.28 12 n ie 9 (a) Both may pass any sentence authorised by law: ) But in the case of a sentence of death passed by either of them, the sentence cannot.t unless. i is submitted to and confirmed. igh. Court under Chap. XXVIII—ss, 366-371 [old Chap, XXVIIese sa 6. ‘Any sentence authorised by law'—As has been al sentences which. can-be-imposed upon the accused are raid Soon ite nee whch pl wih ffenesof which he as ben cnt Indian Pea Code ments 35,83. (Chap alate mn ‘88. 53-75) or a special law which creates the offence and 1. Sentence of death.—Of the sentences authorised by the IPC, the Code of 1973 has made it an exceptional sentence, to be awarded in extraordinary circumstances,** giving the reasons therefor, under s. 3$4(3), post. See under that provision, forthe ease- law. 8, Sentences abolished by Iaw.—Some of the punishments originally prescribed bs the Indian Penal Code have since been abolished by legislation Hr view of universal condemnation of inhuman or cruel punishment, e,g.— {a) Transportation was substituted by imprisonment for life, by the Criminal Procedure Amendment Act (26 of 1955). Forfeirure of, property as a general. penalty. in cases, 10. serious offences etic with death, Wansportation or imprisonment, has been confined to ified offences only, viz., under $s. 126, 127 and 169 of the I.P.C—by three specif Act 16 of 1921. Whipping, which was introduced by special Acts (eg, Whipping Act 6 of 1864), has been abolished by the Abolition of Whipping Act, 1955. $s, 73-74 of the LP,C. empowered the Court to direct ishable with rigorous imprisonment. But this e. 970 0) « d) Solitary Confinemen solitary confinement in cases n has been omitted from the new Criminal Procedure Code, in accordance wi recommendations of the Report of the Joint Committee on the Bill (p. viii). ‘The sentences which may still be awarded in a trial under the, Cr.P.C. will be dealt with under 29, together with the principle governing them, respectively 9, Principles governing sentence.—sSee claborate discussion under s.29, past. “Subject to confirmation, by the High Court —Sub-sections (1), and (2) provide that a Sessions Judge or an Additional Sessions Judge have co-cqual sentencing power with the High Court except in one respect, namely, that if a Sessions Judge passes a sentence ofdeath ‘shail not be executed until it is confirmed by the High Court in the manger provided in Chap. XXVIIL. For this purpose, such Sessions Judge must submit 7 proceed s in which the death sentence has been passed, to the High Court, under s. 3 s. 374], . : ; Rais! ¥ 53. Hardayal v. State of U.P., AIR. 1976 SC 2055 : (1976) 2 SCC 812. 197% CrLd 1578; Raisu State of U.P., ite Lor SC 1822 : (1976) 4 SCC 301 : 1977 CeLt 1885; Gul, Chand Sharma ‘Saraswati Devi, AIR 1977 SC 242 : (1977) 2 SCC 71; Bachan ‘Singh v. State of Punjab. ‘SC 898 : (1980) 2 SCC 684 : 1980 CrLJ 636. 54. State of MP. v. Ratan Singh, AIR 1976 SC 1852 :(1976)3 SCC470: 1976 CLI 1192.Chap. Il—Po wey. 130 8.29 Mer Of Couns 10, Execution, suspension, remission and commutation of sentence. s,, mn , . q Chap. XXXII, post. . ‘hap. Sub-section (3) : Powers of Assistant Sessions Judge—Since an Assis ccc Subaectotrmpese a sentence of death or imprisonment for life cr fry 2" Sessions Jue anol ey posible punishment for murder, under s. 3928 exe 10 Jar i eae of rer should oe tnsered wa Ac eal eon examining the order of commitment, the Sessions Judge fing ions uta urd ha been committed, He must try the case himself or trantr aoe tal Sessions Judge, if one is available.*® Conversely, if an Assistant Sexy ie this nature bas been inadvertently transfered to him, he shes that a case ni Judge Fn rath case to the transfering authority for orders.®® 12, Appeal.—The table on next page will show the respective forums for appea from te vopous categories of Criminal Cours. ls 13, Revision—Under s. 397(1), the High Court has power of revision over ai, Executive and Judicial Magistrates, and Courts of Session; the Sessions Judge has revisional authority over Assistant Sessions Judge, all Executive and Judicial Magistrates. 1 S. 29. (1) The Court of a Chief Judicial Magis. Mecuentemy pos” trate may pass any sentence authorised by law except a sentence of death or of imprisonment for life or of imprisonment for a term exceeding seven years. (2) The Court of a Magistrate of the first class may pass a sentence of imprisonment for a term not exceeding three years, or of fine not exceeding “[ten thousand rupees], or of both. (3) The Court of a Magistrate of the second class may pass a sentence of imprisonment for a term not exceeding one year, or of fine not exceeding ‘[five thousand rupees}, or of both. (4) The Court of a Chief Metropolitan Magistrate shall have the powers of the Court of a Chief Judi Magistrate and that of a Metropolitan Magistrate, the powers of the Court of a Magistrate of the first class. STATE AMENDMENTS rashtra.—The following amendments were made by Maharashtra Act 27 of 2007 (wef ‘S. 29-A.—In its application to the State of Maharashtra, in Section 29— (8) in sub-section (2) for the words “ten thot ° * sand rupees” sa eeeetn, 2 forthe words ten thousand rupees” the words “fify thousand re 55. Bhola v. Emp., AIR 1944 Pat 92 (96). 56, Bhola v. Emp., AIR 1944 Pat 92 (96). * Substituted by the C:PC (Amendment) Act, 2005 (25 of 2005), S. 5. for ‘five thousand rupees Enforced we 25-6-2006 vide Noifiston No. 80. 92(EL ok Sie 3006. : + Substituted by the CrPC (Amendment) Act, 2005 (25 of 2005), S. 5. for “one thousand rupees’ Enforced w.¢.1, 23-6-2006 vide Notification No. S.0. 923(E), dt. 31-6-3006.sentences which Magistrates may pass 8.29 BI {b) in sub-section (2) for the words “five thousan . shall be substituted. cilia Fupees” the words “ten thousand rupees” Punjab. —The following amendments were reed President's Act No 1 of 1984. imate by Punjab Amenuiment Act, 1983 (22 of "39-A._-In its application to the State of P gefined in S200) of ‘Cale of Criminal Procedure aay. 29,8 H5n tate ee 25 as under: #204, Sentences which Executive Magist , ra nay pass a sentence of iniprisonment fora tenn net exzoedng tee yeas oF of He ne seedling five thousand rupees, or of both.” i Chie Years: OF. OF fing ta Union Territory of Chandigarh, —In its applic r yo \. ipplication to the Union Territory of relation to the “specified offences” under -2(b) of the Code Of Criminal Procedure Parish mendment) Act 1989 (Pan Ast 22 of 1943) the provisions of he Co apy iret ory Subject to modifications » for one. Vers sues to, moi ions undermentioned. These modifications to remain in force for one year 294. —Anter S. 29, insert as under— ntences which Executive Magistrates may giv E h y give.—An Executive Magistrate may pass a sentence of imprisonment for a term not exceeding th exceeding five thousand rupees, or of both.” eee yet ea emt 1 relation to the “specified offences” as w 1. Scope of s. 29 . 132 2, Code of Criminal Procedure (Amendment) Act, 2005 os 132 3. Powers of Judicial Magistrates 133 4. Abolition of specially empowered Magistrate 134 5. Procedure to be adopted where the Magistrate finds that the offence is such that a sentence higher than that which he is competent to impose should be awarded 135 6. Sub-section (2) : Magistrate of the First Class 138 7, Sub-section (4) : Powers of Metropolitan Magistrate 135 8. Principles to be observed in awarding sentence 137 9. Circumstances which are not material in determining sentence 138 10. In case of previous convictions 138 11. Cases where deterrent sentence justified 139 12. Punishment 1o respond to society's cry for justice for the criminal 140 13. Particular Offences ” 140 ‘A. Criminal Conspiracy 140 B, Dacoity ~ 140 C. Murder os 141 14, Commutation of death sentence to imprisonment ee ta 15. Some principles relating to the different kinds of Semtence : 1az 16, Time for payment of fine - “ 17. Scope of appeal . “8 18, Appeal from sentence only ; ie 19, Reduction of sentence # wi 20. Enhancement of sentence " 14 21. Appeal from enhancement a. ia 22. Sentencing power of Appellate Court z a7 23, Ss. 29 and 325 " 147 24, Special ActsChap. ve » P.M Power of Coun, 132 COMMENTS 1. Scope of s. 29.—Under the otd ¢ Soceit #22, the ‘originally power ennsetence of aa t for pa fies, ced, 1 aoe Jil agin, rt Class to mos scene of mprsonmea of ee Sons and of fine not exceeding fe. Aron rent) Act, 2005 with eft of 29 yt, Cove of ane fas been enhanced from five thousand rapes 2 6. the eirilarl, the power of the Judicial Magistrate, Second Class 19 ©, a nart was enhanced to two-years and a fine not exceeding ong Py onainal 4, 29. By virtue of Code of Criminal Procedure (Aso aT 3005 with effect from 23,06,2006, the. maximum sentence of fine has been enhanced to five thousand rupees. Criminal Procedure (Amendment) Act, 2005.—Amendment Act of ons wien bes come into force with effect from 23.06.2006 has enhanced the power of the Judicial Magistrate, First and Second Class to award the sentence of fine from five thousand Tupees to ten thousand rupees and from one thousand Tupecs to five thousand rupees respectively. This amendment has been made keeping in view the depreciation of valuation of rupee since 1973 and also to make the provisions more deterrent. Old ss. 37-38 which empowered the State Government to confer additional pow ‘on particular Magistrate, have been omitted; under the new Code, each. Magistrate. on his appointment, shall be vested with the powers specified in s. 29 and other relevant section of the Code. The distinction between ‘ordinary’ and additional powers has been abolished, (c) Third class Magistrates have been abolished.57 Trial Court | Appellate Court 1. ] High Court () | From conviction in extraordinary criminal Jurisdiction —Supreme Court, under s. 374(1), (b) | From conviction and sentence to death in cases withdrawn to itself—Supreme Court, under Art. 134(1)(b) of the Constitution; in other cases, Supreme Court under the Supreme Court (Enlargement of Jurisdiction) cl. (c)_ | Other cases, on certificate, under Art. 134(1)(c); or leave of the Supreme Court, under Art. 136 of the Constitution. ; Subject to exceptions in ss. 375(b), 376(a), . | Sessions Judge and High Cor iti not i E urt, from conviction and sentence of jaitonat Sessions imprisonment over 7 years [s, 374(2)] Subject to exception in ss. 375(b), 378(b). Se 57. 4st Rep. of the Commission, Vol. 1, Paras 2.7; 3.12.semences which Magistrates may pass S.29 133 Sessions Judge (s.374(3)), Subject to exception in ss. 375(b), 376(b), Sessions Judge, from . conviction; under s, 325; order under s, 360 (5 74C Subject to exception in s, 375(b), 376(b)d), apes nde the ol Code he Bz ded ste nen grclusive powers are assigned to Judicial and Executive Magistrates respecte ihe exgresions (Maps, of the Fin Css or Scuola refer to Judicial . 3. pp. , ante}, for, under s. 6(ii)-(ii Magers wo will have this nmenclats, wh I Batedtas Mette! Sot ines powsrs_of adjudication of any ‘class, The expression ‘Metropolitan Magistrates’ ri ip Jada Magic of the Fast clos, TiRCte ws Meanalee mee ‘Assistant Sessions 2, The functions of Judicial Magistrates, under the the following heads— new Code may be classified under (i) Prevention o :—The power to require security for keeping the rreveaton te s. Tost Nisin other specified eases fee. 108-110, 117) to imprison in default of security (s. 122(1)]. (ii) Order for maintenance of wives, children and parents, unable to maintain themselves. —See ss. 125-128, post. (iii) Powers in relation to investigation—Power to order a Police Officer to investigate a non-cognizable case [s. 155(2)]; or a cognizable offence of which he has taken cognizance under s. 190 [s. 156(3)}; to hold investigation or preliminary inquiry on receipt of record of Police Officer under s. 157 {s. 159}; to record confessions and statements made in course of investigation (s. 164]; t0 receive records of search and arrest made by the police (ss. 165-167] and to authorise detention of arrested person pending investigation (s, 167(2)]; to stop investigation where it is not concluded within 6 months {s. 167(5)]; to receive accused for trial with police report (ss. 170, 173]. (iv) Power to take cognizance. of offences. —There cannot be a trial of any offence ) tales it has ‘been taken cognizance of by a Judicial Magistrate (ss. 190-199]. Broadly speaking, a Magistrate who has no power to try a case or commit it for trial is nal competent to take, cognizance. (v). Power to.commit.a.case for. trial by a Court of Session.—When the offence of which the Magistrate has taken cognizance of is exclusively triable by a Court of Session, he must commit the case to that Court of trial (s. 209). (vi) Power to try a case-—Cases other than those exclusively triable by a Court of , Sestton are Uaable By Judicial Magistrates [ss. 26(1 Mii), (bi); 27), under different procedures, according to the gravity of the offence—{a) warrant [Chap. XIX), (b) summons [Chap. XX], and (c) summary [Chap. xxi] proce: dures, Whether an offence is triable by a Magistrate of the First or Second class, is to be determined with reference to the First Schedule. The expression any Magistrate’, in col. 6 of the First Schedule, against certain. offences. & i 461-462, IPC, means a Judicial Magistrate either of the ier or me Se Class,— Executive Magistrates having no power of trial, under the new .Chap. Il—Power of ¢, ourts 14 8.29 : ishing powers i ; nerates the maximum punishing powers of Jygic, ies presen ea egorics Wn trials held by them. This limit cannot (1 fagistrates of Magi ~ ors ganses at sotence in excess of the maxi transgreevon him by. the present section seu Mun oe doe shall be void * There . imposed seine special ws, Cg. 8.21 of the einion of Food Adulteration Act gs hich empower a Magistrate to pass a sentence higher than that specified in the Present which a Ma section of the Code. sjause provided in s. 142 of the Negotiable | ia ig there is non obstante clause provited in s. 142 ol otiable Instrument Even if there is mon oman the powers of Judicial Magistrate, First Class beyong Act, it is not intended (0 th what is fixed in Chapter-III of the Code. {As to powers of Executive Magistrates, see pp. 60-61, ante]. er 0 hie) cial and a Chief Metropolitan Magistrate.—Apart from the point oe ON oe which belong is all Judicial Magistrates, there are certain special powers vested in. a Chief Judicial. Magistrate, by various prov he Code. By reason Of Suib-section (4) of the present section, and’ s. 3(1)(d). , ante, these wers may be exercised by the Chief Judicial Magistrate as well. These special powers of a Chief Judicial Magistrate, inter alia, are— ~A4G) To define local jurisdiction of Judicial Magistrates [s, 14(1)} (ii) To control and supervise the work of other Judicial Magistrates who are all subordinate to him (s. 15(1)}, and to distribute business among them [s. 15(2)] (iii) To determine claims or objections to property attached under s. 83(2) or to make it over for disposal to any other Judicial Magistrate [s. 84(2)-(3)). (iv) To require Postal authority to deliver Postal articles necessary for investigation etc. [s. 92], to grant warrant to search for such articles [s. 93(3)]. (v) To release person imprisoned for failure to give security [s, 123(1)]. (vi) To make over to a subordinate Magistrate for trial any case of which he has taken cognizance [s. 193(1)], or to transfer a case from any Magistrate who has taken cobalzsnce ‘of it to another Magistrate, on application of the accused s. 19). (vii) To receive from another Court or Magistrate, a commission for the examination ofa witness within his jurisdiction [s. 285(1)]. (viii) To receive a case from another Magistrate who is of opinion, upon the evidence that the case should be tried by the Chief Judicial Magistrate [s. 392(1)]. or when the trying Magistrate finds that he cannot pass ientl when the tig not pass a sentence sufficiently (ix) To withdraw or recall any case which he has ; j Magistate 4100 ich he has made over to any subordinate 4. Abolition of specialty empowered Magistrate—S. 30 of the old Code provided for the conferment of higher led Magitaies-of the Feat Clue, {or te confermen Lot bie er powers on selected Magistrates of the First Class, so that 7 lieve the Court of Session of the burden of trying the more serious offences, Punishable with imprisonment for a term up to 7 years while # First Clacs Magistrate 02s teas ila dite to impose a sentence exceeding 2 years. It was also conducive Peedicr disposal because the specially empowered Magistrate was to try such cases 58. Ramchandar v. Ganesh, AIR 1933 Bom 58 (59); David, 6 Bom LR 548. 59. State of U.P. v. Khushi Ram, AIR. 1960 SC 905 (906) : 1960 CrLJ 1378 : (1960) 3 SCR 427. 60, Pankajohai Nogibhai Patel v. State of Gujarat, AIR 2001 SC 567 : (2001) 2 SCC 595 : 2001 CrLJcemences which Magistrates may pas i , 8.29 - pe warrant procedure. The constitutional is 5 it Rtagisraes th Pia tiny the Soreness HOF eating some of the First C Sg jrtion but was upheld by the Supreme Count mnatory under An. tt Class . of the ‘The 37th Report of the Commission ( ons [paras 150-54) rec 2 al a tre “Chet Rececnmmended it tboliton oa ‘i ¢ t itan ‘on the groun: Chitsqces up 10 seven years’ imprisonment [5.298 wh allabe te awe serfenher rst Class Magistrates (paras 3.7-3.10), J. Who were more experienced mended the retention of ee 30 te Cee burden of the , been enitted from the new Code. Und new’ 5 . e Sessions Judge to try ‘offerec cen new gonment belween 3,and 7. years shall be uduc to ty offences punishable ae yaypalitan Magistrates, apart ffom the Assistant Sessions Judges et idl and < Judges [s. 280) 5, Procedure to be adopted where the Magis on nthe higher than that which netis competeat to im om a i te awarded The pre nm in old s. 349 has been made more compichensiv should be avaiaicial Magistrates, who should, in such a case, forward the case 10 th je to enibrace Magistrate, for disposal [s. 325, post] 0 the Chief Judicial In such a case the Magistrate cannot commit th for ti . i J case for trial to the C season a8 under of. 206(1). because under the new Co, acta the Cost a Sesion be made only where the case is exclusively triable by the Court of iss. 208-. I. : ion 6. Sub-section (2) : Magistrate of the First Class.—1. This sub-si ct ponds to olds. 32(1) with the Following changes . cane (a) Solitary confinement has been abolished:6> (b) The power to impose a sentence of imprisonment has been raised from two to three years. (c) The maximum limit of fine has been enhanced from two to five thousand rupees. 7, Sub-section (4) : Powers of Metropolitan Magistrate.—As has been stated earlier, the Metropolitan. Magistrates _are_the. counterpart of Judicial aa he ‘as eventually come out of the functioning in a ‘metropolitan ”. The new Code, as tt Legislature, places the Kiciropo! Magistrates ‘on the same footing as Judicial Magis- trates, except in a few matters. In the old Code, there were ‘substantial difference ‘between Magistrates within the Presidency-towns and. Magistrates outside the Presidency: towns. Almost all of these have been removed by the new ‘Code as will appear from below: (i) Sentencing power. —Though un had the same powers as those of gis new Code not only maintains this positicn by confers upon the Chief Metropolitan Magistrate the same der the old Code, all Metropolitan Magistrates ‘a Magistrate of the First Class [s- 32(1Ma)} the the present sub-section, but ‘also higher power which a 61. Budhan v. State of Bihar, AIR 1955 SC 191 « (1955) 1 SCC 1045. commision Voll 62, Vide Notes on Clauses on the 1970 Bill [XLI of 1970], P- {440; 41st Rep. of the Com pp. 31-32. : & Cf. Kayemullah, (1897) 24 Cal 429: Balbir State. A Puri) 98 (100). Be ericnated by the 4st Rep. of the Commission FIS79 cg 65. Asrecommended ey the Joint Committee on the Bill lof 1970 (Com. 15. P¥ i‘sentences which Magistrates may pass 7 ‘This differentiation has been maintained b 8.29 \37 change that the upper limit in the case of a M the see) Of the new Code, wi * imprisonment, while in the case of a Judicial My se STMtE has been saint the suzy raised 10 Rs. 100. cial Magistrate, mas poet sed to 5 Vimit of fine s. Prince eae in awarding sentence—| “ ihorise th SS ‘any sentence author. —1. Sections dan specified, The determination of a TUS ey HM Sbjct to the mah ts imposed by he lw thus Te 10 the dicen of te Coen RE digeretion, no ba , accordingly, be ing a sirmhnen and each case must depend Tibi Be at down sto the righ meaner Fates nave been laid down from time to time as to how this discrete’ enn gome™! Prin- ‘The discretion has to be exercised along well-known judicial lines 1 1° OC CXeRCised. 2. If exercised judicially, there, will be no i centence passed by the trial Court. interference by a superior Court with the 3. In determining the punishment, the A ciroumstafices. —— he Court has to bear in mind all the attending (a) the nature of the offence,” i.¢., its magnitude or seriousness; (b) the necessity of proportion between an offence and the penalty:7” (c) the circumstances in which the offence was committed, the de; ibe- ration shown by the offender,”* the provocation. mat by hin sh debe (d) in the case of a violent crime, the age and antecedents of the offender,*® but in thé ‘case of heinous crimes, age alone would not be an adequate ground for a lesser offence;*' - (ec) whether there are any extenuating. circumstances-which-can.be said to mitigate the enormity of the crime; (®) whether the accused is a hardened-criminal.or has-commitied a solitary offence; station in life of the offender, () | (1952) SCR 172 (177) : AIR 1952 SC 14: 1953 CrL} 542 71. Adamji Umal Datar v. State of Bombay, (1952) 177) AER 1982 AS 72. Kapur Chand v. State of Bombay, (1959) SCR 250 : AIR TB. Sarug Rav. State “ther ‘AIR 1958 SC 12730) SCR 718: 4 sca 3268, cs 74. Mathri jab, AIR 1964 SC : $ Bhatthanda Slt y Ntaharashira, (1968) MPL) FI (SC): May v. State of Pungab, AIR 1974 ‘SC 687 (689) : (1974) 3 SCC 769 : 1974 Crd 615. ae a Modi Ram v, State of M.P., AIR 1972 ear gem) 2scC wo State of U.P. v. Suman, (1972) 3 SCC . . «1953 CrL3 Fe rae see of Bombay, (1882) SCR IT2(U77): AIR 90 sin 19st 302 78. Ghurphekan v. State of U.P., (1972) 3 SCC 361 (para 5): Nisa v. 3 1954 CrLJ 743. 79. Modi Ram v. Stare of M.P., AIR 197: 3 SCC 201 (para 37). 80. State of U.P. v. Suman, (1972) 3 SCC 201 (pars 37). 81, Pal Singh v, State of Punjab, (1969) 3 SCC 196 (Pare Te ): 1987 SCR 981 : 1957 Cl 1972) 2 SC 2438 : (1992) 2 SCC 630; State of UP. v. Suman. ( 5}; Dharampal v. State of UP - (1970) 1 SCC LJ 1000 82. Thebar v. State of Madras, AIR 1987 SC 614 (620) 83. Modi Ram v. State of MP, AIR 1972 SC 2438 : (1972) eon 84. Modi Ram v. State of MP., AIR 1972 SC 2438 : (1972)?Chap. I—Power of Coun, 138 8.29 ‘i mn the Of (h) effect ofthe crime upo ast (j) nature ofthe injury of the ee oe the trial Court before the chan (the circumstanes of proupergasment and expense tothe accused 7 ee cou Torgoing considerations the sentence should Be adequate to brn 4, Subject to the sciousness that the offence committed by him HPS against his home to the guilty the 20% f the society of which he is a 3 to ‘wn interest as well as the interes! not material in determining sentence—{j) The 9. Circumstances whlch. Fe re mot with Feference tothe, volume or character of pestion of sentence io ort of the prosecution case but with reference 10 all the oe evident Ar the case, particularly, to the extendating circumstances, if any.* Jp ‘aber words. the nature of the proof can only. beag, upon question of conviction by has nothing to do with the question of pi » | i shether the sentence imposed will involve a right of appeal or not is, infovat oy eoang ax sentence as the gravity Of the offence and the other circum. stances (stated above) warrant.”! fender and the chances of his correction;8s (iii) In the absence of extenuating circumstances, there cannot be any justification for the Court to impose the lesser of two sentences provided by. law. = (iv) Nor should the Court be influenced by extraneous considerations, such as the political views of any party; religious or communal feelings; that the accused is a legal practitioner” or a man of position.”° 10. In ease of previous convictions.—I. Persistent offenders are to be dealt with more severely than first offenders, and not only the accused but also the public should be adequately discouraged from adopting a criminal career.” 2. Even in the case of previous convictions, several factors have to be considered with reference to the facts of each case, e.g. — (i)_ the number of past convictions,%* 85. Ramashraya v. State of M.P., AIR 1916 SC 392 (393) : (1976) 1 SCC 281 : 1976 CrLJ 334; Ashok ¥, State, AIR 1980 SC 636 SC 282 : 1980 CrLJ 444 (para 2-3); Madhav Hayawadanrao Hoskat v. State of Maharashtra, AUR 1978 SC 1548 (para 7) : (1978) 3 SCC $44 : 1978 Cr) 1678 86. Ramashraya ¥. State of MP., AIR 1976 SC 392 (393) : (1976) 1 SCC 281 : 1976 CrLI 334; Ashok ¥, Stare, AIR 1980 SC 636 : 1980 SC 282: 1980 CrLJ 444 (para 2-3): Madhav Hayawadanrao Hoskat v. State of Maharashira, AIR 1978 SC 1548 (para 7) : (1978) 3 SCC 544: 1978 CrLJ 1678. 87. Ramashroya v. State of MP., AIR 1976 SC 392 (393) : (1976) 1 SCC 281 = 1976 CrLJ 334; Ashok Fiebae, AIR 1980 SC 636 : 1980 SC 282 : 1980 CrLI 444 (para 2-3): Madhav Hayawadanru? te Hashatv, State of Maharaxtira, AIR 1978 SC 1548 (para 7) ; (1978) 3 SCC 544 : 1978 CrLJ 1678. 8 Trahay State of MP. AIR 1972 SC 2438 (2438): (1972) 2 SCC 630 : 1972 CrLI 1521 B Tker {Sawa Mader, AIR we? $C 614 (620) : 1957 SCR 981 : 1987 CrL 100. fadras, 4 (620): : 31 Emp. Yar Ad Ata fod A 1957 SC 614 (620): 1957 SCR 9B1 : 1957 CxLt 100. 92. Emp. v. Yar Md., AIR 193) Cal 448, 93. Emp. v. Sakinabui, AIR 1931 Bom 70, 94. Ayub v. State, AIR 1962 All 141. 95. Vidvanand v. Eramma, AIR 1962 AP 394, 96. Dharam Singh, 34 Cr) 180. 97. Hanif v. Emp, AIR 1942 Bom 215 (216) 98. Hanif v. Emp., AIR 1942 Bom 215 (216)cnvaces wich MOgistates May pass . 8.29 iy the interval of time which has et 8 Wnicularly since the last convie apsed betwee " en One convieti " ion and ani (iii) the nature of the offences previously proved: ™ the nature of the offence for which he is 10 be punished s ished, trifling offence cannot be jusiified merely Asev had many previous conviciions." merely on the ground that the oflenten ne ww) 11, Cases where deterrent sentence justified —| cemence which is severe enough to deter the accused Fn reer erence many a js other potential offenders to commit the same crime. Even thous his offence, as well ssa figher than the sentence which would have been awarded fax ren semence ray Or ageumstanees, i has Been justified in the interests of the or the offence under rotting 2 ave of crimes when’ particular type of effenes so Prepares ~ fF-repeated. 2 A deterrent sentence is justified;* (i) Where the offence— (a) is the result of deliberation and planning; (b) is committed for the sake of personal gain at the expense of the innocent; (c)_ is a menace to the safety, health or moral well-being of the community e.g, a brutal attack prompted by superstition (such as suspicion of sorcery),° corruption or criminal breach of trust or offence against the administration of justice committed by a public servant.® or a person of responsible position;’ reckless defamatory comments made by 8 power ful Press, without the least justification;® adulteration of drugs of food:’ black-marketing;!° economic offences;!! {d)_ is difficult to detect or trace.!? (ii) When there is a wave of imitative crimes sweeping over the State." (iii) Where a highly organised association of persons engineer series of offences." {iv) Where the offender was himself a public servant charged with the maintenanc of law and order.!* _ 1. Hanif v, Emp., AIR 1942 Bom 215 (216), 2. Hanif v. Emp., AIR 1942 Bom 215 (216) 3, Naravana, in re., (1968) CrLJ 410. 4 Duly. Siw, ATR 1958 All 196 204) gga 1985 Cx) 1297 5. Dasrath y. State of Orissa, AIR | s ate of Pur 6. Ramanial v. se of Bombay, AIR 1960 SC 961 : 1960 CrLd 1138 SCT Su Ramantal x State of Bore g71; Ram Das v- State of W'S" A og 27-11-196H sess see sane of ALP. 1968) SC (CH ATR 21820 63) 2 Crimes 2 a of Maharashtra, AIR 1963 SC ae y: { al 1 SCR igi . Sahib Singh v. Stare of U.P., AIR 1965 CR M4: UH " % Chimantel. State Nahe, ‘AIR 1963 SC 665 = 1963 Supp (1) SC Gl. 3 CrLd 542. 10, Adami. State of Bombay, AIR 1952 SC 1 Stare of Maharashtra v. Suleman, (1977) CI 893 Emp. v. Mail All 279. ‘1 : rd 542. 3 Adami re wes "AIR 1952 SC 14: 1952SCR, ims 198 Came 822 14. Gaijan Singh v. State of M.P., AIR 1965 SC 1921 (para 6) = 15, Parmanand v. Emp., AIR 1940 Neg 340. sj Absbul 42%: 4 1952.SCR 172: 195 (896) Bom.“0 aD Chap. Il!—Power of Courts 3. In particular— (i) In the absence of mitiy circumstances, the sentence for the off dacoity should. as a rule: be detcrrent."® ence of (ii). In cases of illicit distillation of liquor, a deterrent sentence should be i because such cases are not easy {0 detect, cause a loss of revenue to the Government and a menace to the health and morals of the community.” (iii) In cases of anti-social acts of a very serious nature like sale or manufacture of spurious drugs, severe punishment is called for.'* On the other hand— (@)_ Unlike those acts which are universally acknowledged to be of a criminal nature, an act which has only recently been made an offence or which is not unlawful in other parts of the country, deserves leniency except in the case of persistent offenders. (b) Extreme penalty may not be awarded where there are no chances of the crime to be repeated; or there is a possibility of rehabilitation 2! (c) The object of awarding sentence is to protect the society and deter the criminal. 12, Punishment to respond to society’s cry for justice for the criminal—The punishment to be awarded for a crime must not be irrelevant but it should conform to and be_consistent with which crime has. been perpetrated, the enormity of the crime warranting public abhorrence and it should ‘respond to the society's ery for justice ‘against the criminal’? 13. Particular Offences A. Criminal Conspiracy.—1. Where a number of persons jointly commit an offence in furtherance of a common intention, but it is possible to determine who flicted blows which were fatal and who took a lesser part, it is a sound exercise of judicial discretion to discriminate in the matter of punishment as between the several accused, and the extreme penalty cannot be equally awarded to a person who hit on the thumb as on the person who hit on the head 24 2. Where, however, it is not possible to determine who dealt the fatal blow, a judicial mind can legitimately decide to award the lesser penalty in ail the cases.” B. Dacolty.—1. In cascs of decoity, where long terms of imprisonment are imposed, it would, in general, be inappropriate to impose an additional sentence of fine, because 16, 7 18, 19. 20. 21. 22. 23. 24. 25. (Om Prakash v. State, AIR. 1958 All 203. Emp. v. Maiku, AIR 1930 All 279; Crown v. Piyara Singh, 7 Lah 32. Chimanlal v. State of Maharashtra, AIR 1963 SC 665 : 1963 Supp (1) SCR 344 - (1963) 1 Crimes 631 Dulla v. State, AIR 1958 All'198 (204). Harihar v. State of Bihar, (1972) 2 SCC 89 (para 79). Venkatakrishna v. State of 4.P., AIR 1978 SC 480 : (1978) 1 SCC 208 : 1978 CrLJ 641. State of U.P. v. Kishan Chand, (2004) 7 SCC 629 : 2004 SCC (Cri) 2013 : 2005 CrLJ 333 : AIR 2005 SC 1250. State of Karnataka v. Krishnappa, AIR 2000 SC 470 : (2000) 4 SCC 75 : 2000 SCC (Cri) 755 : 2000 CrLJ 1793. Dalip Singh v. State of Punjab, AIR 1953 SC 364 : 1954 SCR 145 : 1953 CrLJ 1465. Dalip Singh v. State of Punjab, AIR 1953 SC 364 : 1954 SCR 145 : 1953 CrLJ 1465142 §.29 Chap. Ill—Power of Courts (iii) Where the accused acted under grave provocation,?® or the act was not pre- meditated.*” -veral persons, the shot which was fired by nt to cause the death.?* (iv) Where out of several shots fired the appellant was not, of itself, sul 14, Commutation of death sentence to Imprisonment —Under s. 386(b)(iii), post, an appellate Court has the power to alter the nature and extent of the sentence. Hence, it an substitute a sentence of imprisonment for life for death even in cases of murder, or ‘otherwise to reduce the sentence,*? in view of the circumstances, if any, which would have induced the trial Court to make such substitution (pp. 133-134, anre), as well as other circumstances relating to the judicial process, e.g., the fact that a long time has elapsed since the date of sentence passed by the trial Court which has caused prolonged agony to the accused # that the Judges were divided on the question of sentence: that the accused was a man of irresistible impulse;** that there was some provocation by the deceased;** that the accused, a young man, had acted under the s who had been acquitted on the benefit of doubt;#’ where the instigation of elder 1 accused's responsibility for the fatal shot, out of an assembly of assailants, was not certain.“¢ +5. Some principles relating to the different kinds of Sentence (i) Imprisonment.—Where the law permits a sentence of fine as an alternative to imprisonment, there is no need for imprisonment, unless there is an element of criminality in the offence, apart from the breach of the law;*? or the offence is such that a deterrent sentence is called for (see p. 135, ante), e.g., offences against the national economy;"® gold smuggling’? and the like. (ii) Imprisonment for life—Imprisonment for life means imprisonment for the remaining period of the life of the accused. The reference to 20 years in s. 57, LP.C., is only for the purpose of calculating fractions of the term of imprisonment under certain sections of the I.P.C., e.g., ss. 116, 511. Neither s. 57, 1.P.C., nor any other provision of law warrants the conclusion that a sentence of imprisonment for life is to be automatically treated as one for a term of imprisonment. But the appropriate Government has the power to commute or remit the sentence of imprisonment for life to a definite term under the provisions of s. 55, I.P.C., and ss. 432-435, CrPC [old ss. 401-402-A]. 36. Sultan v, State of Haryana, (1972) 3 SCC 211 (para 8) : AIR 1972 SC 811 : 1972 SCC (Cri) 286; Brahim Singh v. State of U-P., (1972) 3 SCC 388 : AIR 1972 SC 1229 : 1972 CrLJ 763. 37. Narayanan v. State of T.C., AIR 1956 SC 99. 38. Kuttappan v. State of T.C., (1954) SC [Cr AIR 94/53 dated 17-2-1954] 39. Cf. Modi Ram v. State of MP., AIR 1972 SC 2438. 40. Cf. Ediga v. State of A.P., (1974) | SCWR 471 (485) Al. State of Bihar v. Pashupati, (1973) 2 SCWR 490; Vivian v. State of W.B., (1971) 1 SCC 466 : AIR 1971 SC 725; State of Maharashtra v. Kougil, (1972) 3 SCC 46 (para 27) : AIR 1972 SC 1797 : 1972 CrLJ 570. 42, Pundurang v. State of Hyderabad, (1951) | SCR 1083. 43. Brij Kishore v. State of U.P., (1971) 3 SCC 931 (para 7), 44. Gurdip v. State of Punjab, (1971) 3 SCC 426. 45. Om Prakash v. State of Haryana, (1971) 3 SCC 277 : AIR 1971 SC 1388 : 1971 CrL} 1109. 46. Sobran y. State of U.P. (1971) 3 SCC 910 (914) : 1972 SCC (Cr) 158. 47. Ananda v. Emp., AIR 1931 Pat 342. 48. State v. Drupati, AIR 1965 Bom 6 (para 11). 49. Balkrishna Chhagan Lal Soni v. State of W.B., ; Balirishna hog of W.B., AIR 1974 SC 120 (para 17.19) : (1974) 3 SCC 567 : 50. Godse, AIR 1961 SC 600.Sentences which Magistrates may pass d 8.29 (iii) Imprisonment till rising of C; 143, 7 2 8 of Court — ilegal but may be passed (because the 1. C nett il Hsing of the Coun imprisonment) in very exceptional cance co 2088 NOt fix any minimum semnerac strong extenuating circumstances 3! rye qe, 8 technical offen: ence of say co that Where ir eee. UE day om which sentence is passed coon ae that whe is ¢ counts his detention in jail for such term ean eee day's imprisonment, no warrant for (iv) Fine.—In th imposi not only the Chanel sant’ oC imposing a sentence of the fine, the Court has to not nly the character and magnitude ofthe offence, bul lo the pecs cheunaen really means that he is peateneed: to impose a fine which is beyond his means ‘oy fesult in imprisonment), under the cloak of mee oy Ge fault 1 payment of fine ‘would! affluent person, the fine should not be to light to encourage the athe te i can purchase his ransom. 'ge the offender to think that In case of ill-gotten wealth’? or se i s Commodines Act Eee aeatht OF evasion of tax. or violation of the Essential In the case of a statutory offence, the purpos. cl st — not be overlooked in assessing the quantum of ines), nn ne aime Was Passed mus On the other hand— (a) Where a substantial term of imprisonment has been awarded, excessive fine should not accompany it, except in exceptional cases *! (b) But where a sentence of both imprisonment and fine are obligatory for the offence, under the substantive law, the Court cannot impose only a token fine in addition to imprisonment; the quantum of fine must bear a reasonable relationship to the enormity of the crime. (c) Where the substantive law prescribes a sentence of imprisonment and fine, in the alternative, a sentence of fine alone would meet the ends of justice where the offence is technical; or there was a bona fide mistake due to which the offence was committed. (4) Except in the case of a continuing offence,** a sentence of « daily fine would be illegal. ee $1. Kaniappan, AIR 1955 Mad 408. aN ‘0s Mulluk Chand v. King, (1940) $3 C ¥ ss dette Cikagan Lal Soni v, State of W-B., AIR 1974 SC 120 (para 17.19) : (1974) 3 SCC 567 1974 CrLJ 280. 54, Adamji v, State of Bombay, AIR 1952 SC 1 : 1952 SCR 172: 1953 CrLJ 542 35, Stare of Hyderabad v. Fatima, AIR 1953 Hyd 155. 56. Emp. v. Kesri, AIR 1955 All 207 37. Mohan Lal v. Emp., 1948 Bom 358. . $8. Adamji «State of Bombay, NAIR. 1952 SC 14: 1952 SCR 172: 1953 CrLJ 542, 59. State of MP. v. Jogilal, AIR 1965 MP 27 (para 31). 60. State of Jamnadas, AIR 1962 Bom 234 (235); Ayub v. State, 61. Godse, AIR 1961 SC 600. 62. Narayan, in. re., AIR 1965 MP =o 15) 63. State v. Krishna, (1962) 12 Raj 379. 64. P.P. v. Arunachalam, AIR 1957 Mad ™ on 65, Safder v. Gaya Municipality, AUR 1938 Pat 271- 66. Ram Krishna, (1920) 27 Cal $65. AIR 1962 All 141 (para 14).Chap. V—Arresy f Perse ong 186 S-4l 199, ~ : scan gales out wa 7 : 3h ects of illegal arrest : Pa fi IMegal Arrest = 38 Beet fF arested person : 36. Constitutional rights of (COMMENTS 1 Chap. V.—I. Artest of a person may be effected in two ways— 1. Seope o! eV (i) Under a warrant issued (ii) without any such warrant Un Code. by a criminal Court, and der circumstances and by persons specified by the + dealt with in the next Chapter (VI), under the sub-heading 2, Arrest under warrant is de ene of the present Chapter is broadly confined tg “B— Warrant of Arrest’. Henc arrest without warrant. sun the provisions relating to arrest without warrant, which are ont ea aea” 50, $5, 36, 57, 58, there are certain provisions in the presen Chapter which relate to any’ arrest, whether made under warrant or without warrant, and that is why, under old Chap. V, they were classified separately, under sub-heading ‘A— ‘Arrest Generally’, It is not clear if the omission of these sub-headings in the new Chapter would be conducive to a better understanding of the provisions. Any way, these general provisions relating to arrest of any kind are contained in s. 45 (arrest of members of the ‘Armed Forces); s. 46 (arrest how made); s. 47 (search of place entered by person sought to be arrested); s. 48 (pursuit of offenders into other jurisdictions); s. 49 (prohibition of unnecessary restraint in effecting arrest); s. 51 (search of arrested person); s. 52 (seizure of offensive weapons); ss. 53-54 (medical examination of arrested person); s. 59 (dis- charge of person arrested); s. 60 (retaking of arrested person who escapes from lawful custody). 4, Since several classes of persons are empowered by the Code to arrest without warrant under different circumstances, the provisions relating to such arrest are under different categories: A. Arrest without warrant by Police Officer (ss. 41, 42, 55, 151, 432(3)]. B. Arrest without warrant by private person {s. 43]. C. Arrest without warrant by Magistrate (s. 44]! D. Arrest without warrant by superior officers of Armed Forces (ss. 130(2); 131). b 5. It should be noted, in this context, that the provisions of ss, 41-44 are controlled » gen $45, post, with the result that no member of the Armed Forces can be arrested Ruben Pilg aoe Magistrate, Police officer or private person, for anything ‘done by n e of his official duties’, wi i 0 ro priate Goverment (cee under ‘a paca without the previous consent of the app’ 6. It is to be noted that arrest is i 5 {ficient reasons for exercising s Not a must in every case and there must be sul uch power by the police officers.2 ee 1. Ram Narain v. Sem AIR 195: 8 All 758. 2. Ram v. State of U.P., 2007 C+L3 NOC 439 (All) : 2007 (3) ALI 97.When police may arrest without warrant S.41 187 7. In view of Section 41 of the Code, powers of arrest can be exercised by the police without intervention of the Court? 2. Scope of s.41.—This Section corresponds to old s.54 with the following changes : (i) The different clauses of the ofd section marked as ‘first’, ‘secondly’, and so on, have been made Cls. (a)-(i) of sub-sec. (1) of the new section, with some verbal changes, e.g., the expression ‘Armed Forces of the Union” has been substituted for ‘Army, Navy or Air Force’. (ii) In Cl. (i) corresponding to Cl. Ninthly of the old section, the word ‘requisition’ has been qualified by the words ‘whether written or oral’, to set at rest judicial controversy, as recommended by the Commission. (iii) Olds. $5 has been made sub-sec. (2) of the present section, making it shorter by giving reference to the sections, instead of describing their contents (iv) The persons to be arrested cannot claim a notice before arrest by police under s. 41 of the Code.> (v) The direction of the High Court to the police not to arrest the first respondent, except after written notice is illegal and has been set aside. 3. Ss. 41(1) and 155(2) : Investigation into non-cognizable case.—Section 41(1) confers a general power upon any police officer to arrest without warrant, but it is subject to various other provisions. Thus, s. 41(1) is confined only to the power to arrest and extends to both cognizable and non-cognizable offences; but it would not empower the Police officer to investigate into the case if the offence involved is non-cognizable, without the order of a competent Magistrate under s. 155(2).” 4, Powers of an officer in charge of Police station and other Police officers to arrest without warrant.—The Code makes a distinction between the powers of an officer in charge of a police station from those of other police officers, to make an arrest without a warrant. (1) 1. Any police officer may, without an order from a Magistrate and without a warrant, arrest the following persons [s. 41(2)] : (i) Any person who has been concemed in any cognizable offence or against whom a reasonable complaint or credible information has been received or a reasonable suspicion exists of his having been so concerned; (ii) Any person having in his possession, without lawful excuse, any implement of house-breaking; (iii) Any person who has been proclaimed as an offender either under this Code or under order of the State Government, Laxmi Narayan v. State, 2008 CrLJ 1 : (2007) 109 Bom LR 1583 (Bom) (FB). ist Rep. of the Commission, Vol. I, para 5.2. Ajeet Singh v. Siate of UP., 2001 Cr1.J 170 (AIl-FB); Union of India v. W.N. Chadha, AIR 1993 SC 1082 : (1993) 1 SCC 154 : 1993 CrLJ 859: AIR 1993 SC 796 and State of Maharashtra v. Mohd. Ashid, (2006) 7 SC 56 Followed). 6. Sate of Makarashira v. Mohammed Rashid, (2007) 7 SCC 56 : 2005 SCC (Cri) 1598 : 2006 CrlJ wee 7. Avinash v. State of Maharashtra, (1983) CrLJ 1833 (para 9) Bom.