GOVERNMENT OF KARNATAKA

MANUAL OF EXECUTIVE
MAGISTRATES
(REVISED FEB 2008)

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 CONTENTS

1. Preface

2. Chapter – I Evolution of the office of the

Executive Magistrate

3. Chapter – II General provisions relating to code of

Criminal Procedure

4. Chapter – III Security for keeping the peace and for

good behaviour

5. Chapter – IV Unlawful Assemblies

6. Chapter – V Public Nuisance

7. Chapter – VI Urgent cases of nuisance or apprehended danger

8. Chapter – VII Disputes as to Immoveable property

9. Chapter – VIII Inquests and Inquiries into unnatural deaths

10. Chapter – IX Evidence in Inquiries

11. Chapter – X Judgments

12. Chapter – XI Appeals and Revisions

13. Chapter – XII Bails and Bonds

14. Chapter – XIII Provisions relating to initiation of contempt

proceedings and offences affecting administration
of justice

15. Chapter – XIV Dying Declaration

16. Chapter – XV Identification Parades

17. Chapter – XVI Karnataka Police Act, 1963

18. Chapter – XVII Contempt of Courts Act, 1971

19. Appendix - I List of Central and State Acts conferring

powers on Executive Magistrates

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20. Appendix –II Government Notification issued under Code of
Criminal Procedure, 1973 and Karnataka Police
Act, 1963

21. Appendix –III Specimen Forms, Orders, etc.

22. Appendix –IV Etiquette, Manners, Ceremonials and

Visits of Diginitaries

23. Appendix – V The Provisions Relating to Criminal Procedure Code –

Which are found in Chapter II to XII

24. Appendix – VI The Provisions Relating to Indian Penal Code –

Which are found in Chapter XIII

25. Appendix – VII The Provisions Relating to Indian Evidence Act –

Which are found in Chapter XIV and XV

26. Appendix – VIII The Provisions Relating to Contempt of Courts Act, 1971 –
Which are found in Chapter XVII

27. Appendix – IX The Karnataka (Investigation of Unnatural Deaths

and Conduct of Inquests) (Amendment) Rules, 2005

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 CHAPTER –I
EVOLUTION OF THE OFFICE OF THE
EXECUTIVE MAGISTRATE

The word 'Magistrate' is derived from the Latin 'Magister' a medieval title
given to a person in authority. A magistrate has been described as a public civil officer
invested with executive or judicial powers. The office of the Executive Magistrate in India
evolved along with the office of the Collector and the district as the unit of administration
during the British period. Hence the powers and functions attached to this office can be
well appreciated in the background of the evolution of district administration.

1.2 The concept of the district as a unit of administration has existed in India or
about two centuries now. The district was the common unit of administration in all the
integrating units of Karnataka which came into being on 1st November 1956 and was
then known as Mysore and, although there were Some differences, basically the system
of administration was the same in all these areas.

1.3 "In India, whoever regulates the assessment of land, really holds in his hand
the mainspring of the country", said Sir Thomas Munro, a celebrated administrator of
Madras. In fact from ancient times, the main object of all kingdoms and principalities,
both Hindu and Mohammeden, was the collection of land revenue and their territorial
organisation was devised mainly for the convenience of revenue collection.

1.4 Territorial units of administration existed even under the Mauryas and the
Guptas. The "Rajuka" of the Mauryas, corresponding to a modern .District Collector was
appointed over "many hundred thousand men", and performed revenue and judicial
functions. The "Visaya" under the Guptas roughly corresponded to a modern district and
was presided over by an officer of the Central Government, "Visayapati", who was
responsible for maintaining law and order and collecting taxes and revenues. The village
was the land unit of revenue administration and the representative of the village who
supervised the collection of King's share came to be called the headman and became in

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course of time, the "Patel". "The village official personnel, was for government purposes
simply repeated in wider and wider circles, first over a small area and then again for a
slightly larger area such as we call a district" (Baden- Powell).

1.5 Under the Delhi "Sultanate", the empire was divided into a number of
provinces and the provinces into "Shiqs" which were put under "Shiqdars". The Shiqs
finally emerged as Sarkars. The Sarkar under the Mughals was the counterpart of the
present day district, with the "Fouzdar" as its head. The Fouzdar maintained law and
order in the area under his command. He also maintained an armed force. He had to put
down smaller rebellions, disperse or arrest robber gangs, take cognizance of all violent
crimes and make demonstrations of force to overawe oppositions to the revenue
authorities, or the criminal judge, or the censor. The people looked up to the Fouzdar for
justice and protection.

1.6 There was also a non-official organ of district administration under the
Mughals, consisting of village communities of joint proprietors or government
"assignees" and "zamindars". The Zamindars maintained their own force in order to
maintain peace in the zamindari areas of the Empire. On the whole, the official and non-
official organs worked together in harmony although the latter was subordinated to the
former. With the collapse of the Mughal empire and the political instability that followed,
the non-official organ became more powerful. The zamindars and jagirdars came to
exercise governmental power within their jurisdiction. They collected land revenue and
maintained law and order and also exercised judicial powers. In fact the British found
this 'native' model convenient in realizing their objectives of the collection of revenue and
consolidation of authority.

1.7 To begin with, the British continued the Mughal system of administration with
slight modifications and with a scheme of supervision over the native collecting agency.
They were however confronted with certain administrative problems. One was to
reconstitute into sizable units of administration the districts which had disintegrated into
tahsils. Secondly, they had to find men of integrity and experience to ascertain the
revenue resources of the district and to superintend their administration, in a situation
where zamindars and public officers were illegally performing functions which did not
belong to them. The circumstances called for a reorganisation of administration in the

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districts on a uniform principle. In the reorganisation that followed, the norms set by
Bengal were adopted with suitable modifications in other parts of India.

1.8 Initially, the East India Company appointed covenanted servants as Supervisors
in the existing districts of Diwani provinces in 1769-70. According to their instrument of
instructions, they were not only to be concerned with the collections in their jurisdiction,
but also to have a general knowledge of all that affected the districts. Many of the
Supervisors were, however, ineffective due to lack of training and experience. Hence in
1772, the Company decided to take over the entire executive management of the public
revenues through its officials and appointed "Collectors" of revenue in the place of the
former "Supervisors". Thus was born the office of the Collector on May 14, 1772.

1.9 The district became the common unit of revenue and judicial administration
and was placed under an European official. The Collector combined in himself the
powers of a tax collector and those of a magistrate. In 1787, the district courts were
placed under the collectors and they were empowered to try criminal cases within certain
limits. In 1790 the powers of the Collectors were further increased and they were made
responsible for the custody of prisoners and execution of sentences passed on them by
the provincial criminal courts. Thus the Collector also came to be the Judge-Magistrate.
Such a system of territorial administration by which the districts came to be controlled
directly by a Collector who was responsible for the collection of revenue and
administration of criminal justice became the basis of subsequent administration. In fact,
according to the plan of Sir John Shore, the Collector was to be the sole governor of the
district locally responsible for the execution of Government policy in all its details. It may
be noted here that an important reason for the development of such a system was the
commercial character of the Company which placed emphasis on the civil authority
exercising control over the military.

1.10 Lord Cornwallis was not in favour of the union of revenue and judicial functions
in a single person. The Cornwallis Code of 1793 divested the Collector of all judicial and
magisterial functions. The entire administrative work in a district was divided between
two officers -one acting as Collector of Revenue and the other as Judge-Magistrate. This
system was a failure in practice.In a Minute of October 2, 1815 Marquis of Hastings
observed thus: 'The duties of Judge necessarily confine him to the Court house. The

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duties of a magistrate can perhaps never be so properly executed as while he is
engaged in a personal visit to every part of the district. The administration of civil justice
requires the patient and cool deliberation of mature age. The preservation of peace of
the district calls for all the active energy of early youth. A judge shall perhaps be
abstracted from all private converse with the natives. A magistrate must maintain a most
intimate communication with them and carry his researches into the inmost recesses of
their privacy. Justice should be blind, but police requires the eyes of Argus".

1.11 The reforms introduced by Lord William Bentinck in 1831, again united the
offices of Collector and Magistrate. Bentinck also created the posts of Joint Magistrates
and placed them in charge of sub-divisions. Deputy Magistrates were also recruited to
provide more efficient assistance to the Magistrate-Collectors. Gradually, Deputy
Magistrates were also appointed as Sub-Divisional Officers.

1.12 The evolution of administration followed in the South nearly the same course
as in Bengal. However, under the influence of Sir Thomas Munro the system of district
administration which developed in Madras and Bombay made the collector a virtual ruler
of the district. He performed multifarious duties relating to revenue, police and jails.
Apart from combining executive and judicial powers, he came to exercise wide
discretionary power. In the former princely State of Mysore, we find that during the
regency of Dewan Purnaiya in the beginning of the 19th century, a new type of officials
called 'Kandachar' police was introduced to protect the life and property of the people.
The Amildar (Tahsildar) of a Taluk was also the head of the police in that area. During
the time of the British rule (1815-81) the Deputy Commissioner became the head of the
police in the district.

1.13 In 1837 during the administration of Lord Auckland, the offices of Magistrate
and Collector were again separated. However, as the magistracy fell into the hands of
junior civil servants, law and order was affected. After the Mutiny, the offices of
Magistrate and Collector were reunited on a general pattern throughout the country
which continues till this day. The district Magistrate-Collector has remained the Chief
Executive head and administrator of the district. As District Magistrate, the District
Collector was the head policeman, the head prosecutor and the chief of the district
magistracy. He directed police enquiries and obtained police reports.

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1.14 The Indian Police Act, 1861 however, constituted the police into a separate
department distinct from the magistracy. But the District Magistrate was authorised to
have control over the Superintendent of Police under the Criminal Procedure Code. Sir
George Campbell, Lieutenant Governor of Bengal from 1871 to 1874 made it clear that
the police was subordinate to the Magistrate for all and every purpose.

1.15 Here, it is necessary to distinguish between the judicial and police powers of
the Magistrate. As a judicial magistrate he was empowered to try cases and as an
executive magistrate he exercised control over the police, particularly in matters
concerning maintenance of law and order. Both these powers were combined in the
office of the Collector and District Magistrate. In addition, he also appointed officers to
conduct the prosecution in important cases.

1.16 However as the demand for separation of judiciary from the executive gained
ground in the country, particularly after independence, the policy which was accepted
by the Government came to be incorporated as one of the directive principles of the
State Policy enshrined in the Constitution (Art 50). During the period from 1951 to
1956, almost all the States of India initiated schemes for the separation of judiciary
from the executive. In Karnataka, judicial functions were separated from the executive
from 1st June 1956. Under the scheme of separation of the Judiciary from Executive
outlined in Government Order No.1438-57 CTS18-56-4, dated 29th May 1956, an
arrangement was made whereby all the functions of a Magistrate under the Code of
Criminal Procedure and under the various other statutes, were divided between two
categories of Magistrates - Judicial and Executive. The allocation of powers between
the two categories of Magistrates proceeded on the principle that matters which were
purely police or administrative in nature, should be dealt with by the Executive
Magistrates and those judicial in nature should be dealt with by the Judicial
Magistrates. The Executive Magistrates are executive officers of the Revenue
Department coming under the control of the Government while Judicial Magistrates
are under the control of the High Court.

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1.17 In order to discharge the functions expected of them effectively, the
Executive Magistrates will have to be familiar with the relevant provisions of the Code of
Criminal Procedure, the Police Act, the Evidence Act and other Acts which confer
specific powers on them.

1.18 In the Chapters following, a resume of important provisions of law conferring

powers and duties on Executive Magistrates and the procedures that are to be followed
by them in discharging their functions are given for guidance.

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 CHAPTER – II
GENERAL PROVISIONS RELATING TO CODE
OF CRIMINAL PROCEDURE

2.1 The Code of Criminal Procedure, 1973, has a two- fold object. While
providing a machinery for punishment of offenders against substantive criminal law, it
also provides for prevention of offences. The provisions relating to the preventive
aspects are to be found in the Chapters dealing with:

(a) Security for keeping the peace and for good behaviour (Chapter VIII);

(b) Maintenance of public order and tranquillity (Chapter X); and

(c) Preventive action of the Police (Chapter XI).

As the responsibility of maintaining law and order is a function of the

Executive and prevention of offences is one aspect of this function, the Code has
provided for the constitution of Courts of Executive Magistrates and has conferred on
them powers to take preventive action wherever necessary.

2.2 The Code has created two categories of Magistrates:

(1) Judicial Magistrates (including the Magistrates for metropolitan areas);

and

(2) Executive Magistrates,

and has allotted magisterial functions under the Code between them.

The distribution of functions exercisable by judicial and executive magistrates

under any law other than the Criminal Procedure Code is as follows (Sub-section 4 of
Section 3);

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 Judicial Magistrates: Matters which involve:

(a) Appreciation or sifting of evidence.

(b) Formulation of any decision which exposes any person
(i) to any punishment or penalty or detention in custody pending
investigation;
(ii) to any inquiry or trial would have the effect of sending him for trial
before any court.

Executive Magistrates: Matters which involve functions which are

administrative or executive in nature like the following:

(a) Granting of a licence, its suspension or cancellation.

(b) Sanctioning a prosecution or withdrawing from prosecution.

EXECUTIVE MAGISTRATES:

2.3 The State Government has the power to appoint as many persons as it
thinks fit to be Executive Magistrates and to appoint one of them as District Magistrate. It
may also appoint anyone of them as Additional District Magistrate who shall have such
of the powers of a District Magistrate under this Code or any other law for the time being
in force as may be directed by the State Government. It could also place an Executive
Magistrate in charge of Sub-Division and relieve him of such a charge. When a
Magistrate is placed in charge of a Sub-Division, he shall be called the Sub-Divisional
Magistrate. The State Government has also the power to confer on the Commissioner of
Police all or any of the powers of an Executive Magistrate in relation to a Metropolitan
area [Sec. 20 (1), (2), (3), (4) & (5)].

Section 20-Power of Additional District Magistrate – Additional District Magistrate

has the power of Executive Magistrate by virtue of the Notification passed by the
Karnataka State Government under Section 20 of the Act.

Held : Prohibitory order passed by ADM Prohibiting Dr. Praveen Togadia from
entering Dakshina Kannada District for a period of 15 days and participating in any
function in that district was valid and High Court should not have lightly interfered with

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that order of competent Authority. State of Karnataka and Another Vs. dr. Praveen
Bhai Thogadia, [Criminal Appeal No. 401 of 2004, dated 31.3.2004] 2004 (3) KCCR
SN 199:2004 (4) Kar. L.J. 484: (2004) 4 SCC 684:AIR 2004 SC 2081

2.4 In the event of the office of the District Magistrate becoming vacant, any officer
who succeeds to the Executive Administration of the District shall, pending orders of the
State Government, exercise all powers and perform all duties respectively conferred and
imposed by this Code on the District Magistrates [Sec. 20 (3)].

20[(4-A)- The State Government may, by general or special order and subject to
such control and directions as it may deem fit to impose, delegate its powers under sub-
section (4) to the District Magistrate.

2.5 The State Government may appoint Executive Magistrates as Special

Executive Magistrates for particular areas for performing particular functions and confer
on them such powers as are exercisable by the Executive Magistrates under the Code
(Sec. 21).

2.6 The District Magistrate, subject to the control of the State Government, will
define from time to time, the local limits and the areas within which the Executive
Magistrates may exercise powers conferred on them under this Code. Where no such
limits are defined, the jurisdiction and powers of every such Magistrate shall extend
throughout the District (Sec. 22).

2.7 All the Executive Magistrates in the District. except the Additional District
Magistrate will be subordinate to the District Magistrate. While exercising the powers in a
Sub-Division they will also be subordinate to Sub-Divisional Magistrate, subject however,
to the general control of the District Magistrate.

2.8 The District Magistrate has been empowered to make rules or give special orders
regarding the distribution of business among the Executive Magistrates subordinate to
him and as to the allocation of business to an Additional District Magistrate (Sec. 23).

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2.9 Under the Code, it is open to the District Magistrate to withdraw any powers
conferred by him [Sec. 34 (2)]. In order to ensure continuity, the Code provides that the
powers and duties of a Magistrate can be performed by his successor in office (Sec. 35).

2.10 Any District Magistrate or Sub-Divisional Magistrate, for reasons to be

recorded, may order the making over, for disposal of any proceedings which has been
started before him to any Magistrate subordinate to him or the withdrawal of any case
from or the re-call of any case which he has made over to any Magistrate subordinate to
him and dispose of such proceedings himself or refer it to disposal to any other
Magistrate (Sec. 411 and 412).

ARREST OF PERSONS:

2.11 Sec. 41 of the Code enumerates the cases where any Police Officer may
without an order from a Magistrate and without warrant, arrest any person. Sec. 42 deals
with the arrest of any person who, in the presence of a Police Officer has committed or
has been accused of committing a non-cognizable offence and who refuses to give his
name and residence or gives a name or residence which the officer has reason to
believe to be false. As very wide powers have been conferred on Police Officers to
enable them to act swiftly for the prevention or detection of cognisable offences without
the formality of having to go to a Magistrate for an order of arrest, the Courts should be
particularly vigilant to see that whenever arrested persons are brought before them, the
powers conferred on the Police are not in any way abused or likely to be used for the
satisfaction of private feelings or of designing complainants.

ARRESTING A FEMALE PERSON

In the STATE OF MAHARASTRA v C C W Council of India (AIR 2004 SC 7(A)

the High Court prevented the police from arresting a lady without the presence of a lady
constable. Said direction also prohibited the arrest of a lady after sunset and before
sunrise under any circumstances.

While it is necessary to protect the female sought to be arrested by the police

from police misdeeds, it may not be always possible and practical to have the presence
of a lady constable when the necessity for such arrest arises, therefore, the SC modified

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the said direction without disturbing the object behind the same. The object will be
served if a direction is issued to the Arresting Authority that while arresting a female
person, all efforts should be made to keep a lady constable present but in circumstances
where the Arresting Officer is reasonably satisfied that such presence of a lady
constable is not available or possible and/or the delay in arresting caused by securing
the presence of a lady constable would impede the course of investigation such
Arresting Officer for reasons to be recorded either before the arrest or immediately after
the arrest be permitted to arrest a female person for lawful reasons at any time of the
day or night depending on the circumstances of the case even without the presence of a
lady constable. (Para 9)

ARREST BY A PRIVATE PERSON:

2.12 The Code also provides for arrest by a private person and the procedure
to be followed on such arrest (Sec. 43).

ARREST BY MAGISTRATE:

2.13 When any offence is committed in the presence of an Executive or Judicial

Magistrate within his local jurisdiction, he may himself arrest or order any person to
arrest the offender and may thereupon subject to the provisions contained in the Code
as to bail, commit the offender to custody. Any Executive or Judicial Magistrate may at
any time arrest or direct the arrest in his presence within his local jurisdiction of any
person for whose arrest he is competent at the time and in the circumstances to issue a
warrant (Sec. 44).

SCOPE OF ARREST

Powers - The Code gives power of arrest not only to a police officer and a
Magistrate but also under certain circumstances or given situations to private persons.
Further, when an accused person appears before a Magistrate or surrenders voluntarily,
the Magistrate is empowered to take that accused persons into custody and deal with
him according to law. Needless to emphasize that the arrest of a person is a condition
precedent for taking him into judicial custody thereof. To put it differently, the taking of

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the person into judicial custody is followed after the arrest of the person concerned by
the Magistrate on appearance or surrender. In every arrest, there is custody but not vice
versa and that both the words „custody‟ and „arrest‟ are not synonymous terms. Though
„custody‟ may amount to an arrest in certain circumstances but not under all
circumstances, if these two terms are interpreted as synonymous, it is nothing but an
ultra legalist interpretation which if under all circumstances accepted and adopted, would
lead to a startling anomaly resulting in serious consequences. (Para 50) (S. 41 to S. 44
and S. 167)
Directorate of Enforcement v. Deepak MahajanAIR 1994 SC 1775

RIGHTS OF PERSON ARRESTED

(1) An arrested person being held in custody is entitled, if he so requests to have on

friend relative or other person who is known to him or likely to take an interest in
his welfare told as far as is practicable that he has been arrested and where is
being detained. He also has a right to consult privately with lawyer.

(2) The Police Officer shall inform the arrested person when he is brought to the
police station of this right.

(3) An entry shall be required to be made in the diary as to who was informed of the
arrest. These protections from power must be held to flow from Arts.21 and
22(1) of the constitution (dealing with fundamental rights) and enforced strictly.

It shall be the duty of the Magistrate, before whom the arrested person is
produced, to satisfy himself that these requirements have been complied with. The
above requirements shall be followed in all cases of arrest till legal provisions are made
in this behalf. These requirements shall be in addition to the rights of the arrested
persons found in the various Police Manuals. (Para 24, 25, 26, 27, 28)
(Joginder Kumar v. State of U.P. - AIR 1994 SC 1349)

PROTECTION TO MEMBERS OF ARMED FORCES:

2.14 Sec. 45 gives a qualified protection from arrest to a member of the Armed
forces of the Union for anything done or purported to have been done by him in the
discharge of his official duties. Under Sub-Sec. (2) of Sec. 45, it is open to the State

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Government to extend this immunity to specific categories of members of the forces
charged with maintenance of public order.

2.15 Police officers or other persons making the arrest shall actively touch or confine
the body of the persons to be arrested unless there is a submission to the custody by
word or action. If such person forcibly resists the arrest or attempts to evade the arrest,
all the means necessary to effect the arrest may be used [Sec. 46 (1) and (2)].

46(4). Save in exceptional circumstances, no woman shall be arrested after sunset

and before sunrise, and where such exceptional circumstances exist, the woman police
officer shall, by making a written report, obtain the prior permission of the Judicial
Magistrate of the first class within whose local jurisdiction the offence is committed or the
arrest is to be made.
*Inserted by the CrPC (Amendment) Act, 2005 (25 of 2005), S.6 (to be effective from the date of its notification).

OBLIGATION OF PERSON MAKING ARREST TO INFORM ABOUT THE

ARREST, ETC., TO A NOMINATED PERSON.

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

*New Section 50A inserted by the CrPC (Amendment) Act, 2005 (25 of 2005), S.7 (to be effective from the date of its notification).

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EXAMINATION OF ACCUSED BY MEDICAL PRACTITIONER AT THE REQUEST OF
POLICE OFFICER.

53(2) Whenever the person of a female is to be examined under this section, the
examination shall be made only by, or under the supervision of, a female registered
medical practitioner.

*[Explanation- In this section and in sections 53-A and 54, -

(a) “examination” shall include the examination of blood, blood-stains, semen, swabs
in case of sexual offences, sputum and sweat, hair samples and finger nail clippings
by the use of modern and scientific techniques including DNA profiling and such
other tests which the registered medical practitioner thinks necessary in a particular
case;

(b) “registered medical practitioner” means a medical practitioner who posses any
medical qualification as defined in clause (h) of section 2 of the Indian Medical
Council Act, 1956 (102 of 1956) and whose name has been entered in a State
Medical Register.]

*Substituted for the former explanation by the CrPC (Amendment) Act, 2005 (25 of 2005), S.8 (to be effective from
the date of its notification). Prior to its substitution, the Explanation read as under:

“ Explanation.- In this section and in section 54, “registered medical practitioner” means a medical practitioner who
possesses any recognized medical qualification as defined in clause (h) of section 2 of the Indian Medical Council
Act, 1956 (102 of 1956), and whose name has been entered in a State Medical Register.”

54. †[(1)] - When a person who is arrested, whether on a charge or

otherwise, alleges, at the time when he is produced before a Magistrate or at any
time during the period of his detention in custody that the examination of his body will
afford evidence which will disprove the commission by him of any offence or which
will establish the commission by any other person of any offence against his body,
the Magistrate shall, if requested by the arrested person so to do direct the
examination of the body of such person by a registered medical practitioner unless
the Magistrate considers that the request is made for the purpose of vexation or
delay or for defeating the ends of justice.

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 ‡[(2) Where an examination is made under sub-section(1), a copy of the report of
such examination shall be furnished by the registered medical practitioner to the
arrested person or the person nominated by such arrested person.]

† S. 54 re-numbered as sub-sec.(1) of that section by the CrPC (Amend), Act, 2005 (25 of 2005), S.10 (to be
effective from the date of its notification).

‡ Sub-Section(2) inserted by the CrPC (Amendment) Act, 2005 (25 of 2005), S.10 (to be effective from the

date of its notification).

PRODUCTION OF PERSON ARRESTED WITHOUT WARRANT

Section 54 undoubtedly provides for examination of an arrested person by a medical

practitioner at the request of the arrested person and it is a right conferred on the
arrested person. But very often the arrested person is not aware of this right and on
account of his ignorance, he is unable to exercise this right even though he may have
been tortured or maltreated by the police in police lock up. It is the duty of the
Magistrate to inform the arrested person about this right of medical examination in case
he has any complaint of torture of maltreatment in police custody.
(Sheela Barse v. State of Maharashtra AIR 1983 SC 378 (C))

A police officer making arrest without warrant shall without unnecessary delay and
subject to the provisions of bail take or send the person arrested before a Magistrate
having jurisdiction in the case or before an officer in charge of a police station (Sec.
56). The words "Magistrate having jurisdiction" has been interpreted to mean the
Magistrate having jurisdiction to try the case. No Police Officer shall detain in custody,
a person arrested without warrant for a longer period than what in the circumstances of
the case is reasonable and such period shall not in the absence of a special order of a
Magistrate under . Sec. 167 of the Code exceed 24 hours exclusive of the time
necessary for the journey from the place of arrest to the Magistrate's Court (Sec. 57)
(Article 22 of the Constitution of India).

2.16 Sub-Sec. 2 (A)' of Sec. 167 provides that the officer in charge of the Police
Station, or an officer not below the rank of Sub-Inspector, who is making investigation,
may where the Judicial Magistrate is not available, produce the accused before the
nearest Executive Magistrate, on whom the powers of Judicial Magistrate have been

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conferred, and also transmit a copy of the entry in the diary (prescribed in the Code)
relating to the case. Thereupon such Executive Magistrate may, for reasons to be
recorded in writing, authorise the detention of the accused person in such custody as he
may think fit, for a term not exceeding 7 days in aggregate and on the expiry of the
period authorised, the accused person shall be released on bail except where an order
for further detention of the accused person has been made by a Magistrate competent to
make such order. Before the expiry of the said period, the Executive Magistrate shall
transmit the records of the case together with a copy of the entries in the diary, relating
to the case, to the nearest Judicial Magistrate.

2.17 The Officer in charge of a Police Station shall report to the District Magistrate or if
he so directs to the Sub-Divisional Magistrate, the cases of all persons arrested without
warrant within the limits of their respective stations whether such persons have been
admitted to bailor otherwise (Sec. 58). No person who has been arrested by a Police
Officer shall be discharged except on his own bond or. on bail or under special orders of
a Magistrate (Sec. 59).

PROCESS TO COMPEL APPEARANCE

2.18 The processes to compel appearance are:

(a) Summons (b) Warrant and (c) Proclamation and Attachment Warrant.
Whether a summons or warrant should be issued in the first instance is determined
by Column 4 of Schedule II to the Criminal Procedure Code.

(a) SUMMONS:

2.19 The provisions dealing with summons are given in Chapter VI-A of the
Code. They relate to:

(1) The form of Summons (Sec. 61);

(2) Service of Summons (Sec. 62);

(3) Service of Summons on corporate bodies and societies (Sec. 63);

(4) Service of Summons when persons cannot be found (Sec. 64);

(5) The procedure when service cannot be effected under Sec. 62 to 64 (Sec. 65);

19
 (6) Service on Government Servants {Sec. 66);

(7) Service of Summons outside the local limits (Sec. 67);

(8) Proof of service in case of service of summons outside local limits and in case
when the serving officer is not present at the hearing of the case (Sec. 68); and

(9) Service of Summons on witnesses by post.

61.Form of summons.- Every summons issued by a Court under this Code shall be in
writing, in duplicate, signed by the presiding officer of such Court or by such other officer
as the High Court may, from time to time, by rule direct, and shall bear the seal of the
Court.

62.Summons how served.- (1) Every summons shall be served by a police officer, or
subject to such rules as the State Government may make in this behalf, by an officer of
the Court issuing it or other public servant.

(2) The summons shall, if practicable, be served personally on the person summoned,
by delivering or tendering to him one of the duplicates of the summons.

(3) Every person on whom a summons is so served shall, if so required by the serving
officer, sign a receipt therefor on the back of the other duplicate.

63.Service of summons on corporate bodies and societies.- Service of a summons

on a corporation may be effected by serving it on the secretary, local manager or other
principle officer of the corporation, or by letter sent by registered post, addressed to the
chief officer of the corporation in India, in which case the service shall be deemed to
have been effected when the letter would arrive in ordinary course of post.

Explanation.- In this section, "corporation" means an incorporated company or other

body corporate and includes a society registered under the Societies Registration Act,
1860.

64.Service when persons summoned cannot be found.- Where the person

summoned cannot, by the exercise of due diligence, be found, the summons may be
served by leaving one of the duplicates for him with some adult male member of his

20
family residing with him, and the person with whom the summons is so left shall, if so
required by the serving officer, sign a receipt therefor on the back of the other duplicate.

Explanation.- A servant is not a member of the family within the meaning of this section.

65.Procedure when service cannot be effected as before provided.- If service

cannot by the exercise of due diligence be effected as provided in section 62, section 63
or section 64, the serving officer shall affix one of the duplicates of the summons to
some conspicuous part of the house or homestead in which the person summoned
ordinarily resides; and thereupon the Court, after making such inquiries as it thinks fit,
may either declare that the summons has been duly served or order fresh service in
such manner as it considers proper.

66.Service on Government.- (1) Where the person summoned is in the active service
of the Government, the Court issuing the summons shall ordinarily sent it in duplicate to
the head of the office in which such person is employed; and such head shall thereupon
cause the summons to be served in the manner provided by section 62, and shall return
it to the Court under his signature with the endorsement required by that section.

(2) Such signature shall be evidence of due service.

67.Service of summons outside local limits.-When a Court desires that a summons

issued by it shall be served at any place outside its local jurisdiction, it shall ordinarily
send such summons in duplicate to a Magistrate within whose local jurisdiction the
person summoned resides, or is, to be there served.

68.Proof of service in such cases and when serving officer not present.-(1) When a
summons issued by a Court is served outside its local jurisdiction, and in any case
where the officer who has served a summons is not present at the hearing of the case,
an affidavit, purporting to be made before a Magistrate, that such summons has been
served, and a duplicate of the summons purporting to be endorsed (in the manner
provided by section 62 or section 64) by the person to whom it was delivered or
tendered or with whom it was left, shall be admissible in evidence, and the statements
made therein shall be deemed to be correct unless and until the contrary is proved.

21
(2) The affidavit mentioned in this section may be attached to the duplicate of the
summons are returned to the Court.

69.Service of summons on witness by post.- (1) Notwithstanding anything contained

in the preceding sections of this Chapter, a Court issuing a summons to a witness may,
in addition to and simultaneously with the issue of such summons, direct a copy of the
summons to be served by registered post addressed to the witness at the place where
he ordinarily resides or carries on business or personally works for gain

(2) When an acknowledgment purporting to be signed by the witness or an endorsement

purporting to be made by a postal employee that the witness refused to take delivery of
the summons has been received, the Court issuing the summons may declare that the
summons has been duly served

SUMMONS BY POST

1) Issuance of summons to the accused by post is not contemplated under the

procedure. Therefore posting of case for payment of RPAD charges is illegal.
Consequent dismissal of case on ground of non payment of charges is not proper.
(Nav Maharashtra Chakan Oil Mill Ltd. V. Shivashakti Poultry Farm - 2002 Crl. L.J.
4446 - KARNATAKA HIGH COURT)

2) In case of witnesses, when they fail to return summons issued, Magistrate can
issue fresh summons by registered post or through higher authorities of said
witnesses to secure their presence. Closing prosecution case by Magistrate without
taking any such steps is not proper. (State of Karnataka v. Nallayappa
KARNATAKA HIGH COURT 1996 CRI.L.J.3539)

2.20 It may be noted that a Magistrate will not be justified in issuing a warrant
unless he is convinced about the service of the summons and its disobedience.

(b) WARRANTS:

2.21 Chapter VI-B of the Code deals with the provisions regarding warrants.
of arrest. Every warrant of arrest shall be in writing signed by the Presiding Officer and

22
shall bear the seal of the Court. It may be directed against any person (Sec. 73) and
shall remain in force until it is cancelled by the Court which issued it or until it is
executed (Sec. 70). The Court issuing the warrant of arrest may provide by an
endorsement that the person to be arrested can be released on taking such security
as the court may show in the endorsement (Sec. 71). Warrant of arrest shall be
directed to one or more Police Officers and it may be executed all or by anyone of
them (Sec. 72). A warrant directed to a Police Officer can be executed by any other
Police Officer whose name has been endorsed upon the warrant by officer to whom it
is directed (Sec. 74). Sec. 75 to 79 describe how the arrest should be effected, how
the person arrested should be brought before the Court and also the procedure for
executing a warrant outside the jurisdiction of the Court. Unless the Court which
issues the warrant, is within 30 Kms., the person arrested shall be produced before
the nearest Executive. Magistrate or District Superintendent of Police or
Commissioner of Police within the local limits of whose jurisdiction the arrest was
made (Sec. 80). When a person arrested is brought before the Magistrate, the District
Police Superintendent of Police or Commissioner of Police, they have the power to
direct the removal of the arrested person in custody to such court. They may also
subject to the endorsement regarding bail and the provisions of bail contained in the
Code, release the person on bail (Sec. 81).

(c) PROCLAMATION AND ATTACHMENT:

2.22 Chapter VI-C deals with the provisions of proclamation and attachment.
Under Sec. 82 (1) of the Code, if any court has reason to believe that a person against
whom a warrant has been issued, has absconded, the Court can publish a written
proclamation requiring him to appear at the specific place and time not less than 30 days
from the date of proclamation. Sec. 82 (2) prescribes the procedure for publication of the
proclamation.

PROCLAMATION FOR PERSON ABSCONDING :

82.*(4) – Where a proclamation published under sub-section (1)is in respect of a

person accused of an offence punishable under section 302, 304, 364, 367, 382,
392, 393, 394, 395, 396, 397, 398, 399, 400, 402, 436, 449, 459 or 460 of the Indian
Penal Code and such person fails to appear at the specified place and time required

23
 by the proclamation, the Court may, after making such inquiry as it thinks fit,
pronounce him a proclaimed offender and make a declaration to that effect.

* inserted by the CrPC (Amendment) Act, 2005 (25 of 2005), S.12 (to be effective from the date of its
notification).

The court issuing a proclamation under Sec. 82 may at any time after the issue
of the proclamation order the attachment of any property movable or immovable or
both, belonging to the proclaimed person [Sec. 83 (1)]. Under certain circumstances,
the court issuing. a proclamation may attach the property simultaneously without
waiting to see whether the person proclaimed appears within the time prescribed or
not. The procedure of attachment and disposal of the attached property are found in
Subsections (2) to (6) of Sec. 83. While Sec. 84 indicates how claims and objections.
to attachment should be disposed off, Sec. 85 deals with the release, sale and
restoration of attached property.

OTHER RULES REGARDING PROCESS:

2.23 Sec. 87 is an important provision which contains the circumstances under which
a warrant can be issued in lieu of, or in addition to summons. If the court has reason to
believe that the person against whom a summons is issued has absconded or will not
obey the summons or if a summons is proved to have been duly served and the person
has failed to appear, the Court can issue a warrant in lieu of or in addition to the
summons. Sec. 88 provides that when any person for whose appearance or arrest the
court is empowered to issue a summons or warrant is found present in such court, such
officer may require such person to execute a bond with or without surety for his
appearance in such Court. Sec. 89 provides that if a person who is bound by any bond
to appear before a Court, does not appear, the Officer presiding in such court may issue
a warrant directing that such person be arrested and produced before him.

PROCESS TO COMPEL THE PRODUCTION OF THINGS

SUMMONS TO PRODUCE:

2.24 When any court considers that the production of any document or thing is
necessary for the purpose of any investigation, inquiry or any trial or other proceeding

24
under the Code, the Court may issue a summons to the person in whose possession the
document or thing is, to produce the same [Sec. 91 (1n. Under Sub-Section (2) of Sec.
91 the person to whom the summons is issued shall have to produce or cause the
documents or thing to be produced. Sec. 92 provides that if any document, parcel or
thing in the custody of a postal or telegraph authority, is in the opinion of the District
Magistrate, wanted for the purpose of any investigation, inquiry, trial or other proceeding
under the Code, such Magistrate may request the postal or telegraph authority as the
case may be to deliver the document, parcel or thing to such person as he directs. Sub-
section (2) of Sec. 92 provides if any such document, parcel or thing is in the opinion of
any other Magistrate, whether Executive or Judicial or of any Commissioner of Police or
District Superintendent of Police wanted for any such purpose, he may require the
Postal or Telegraph Authority, as the case may be to cause search to be made for and
to detain such document, parcel or thing pending the order of a District Magistrate, Chief
Judicial Magistrate or Court under Sub-sec. (1) of Sec. 92.

SEARCH WARRANTS

2.25 Sec. 93 describes the procedure for the production of a document or thing,
when the summons to produce it has failed or in other cases. A search warrant under
this section can be issued in the following cases:

(1) Where the Court has reason to believe that the person summoned

to produce a document or thing will not produce it.

(2) Where the Court is not able to know in whose possession the
document or thing is; and

(3) Where the Court considers that a general search or inspection is necessary.

2.26 Under Sec. 94 of the Code, if a District Magistrate, Sub-Divisional Magistrate

or a Magistrate of the First Class upon information and after such inquiry has reason to
believe that any place is used for the deposit or sale of stolen property or for the deposit,
or sale or production of any objectionable articles, he may issue a search warrant for the
search of any place shown in the warrant. Clauses (c) and (d) of Sub-see (1) of Sec. 94

25
further provide as to how the stolen property or objectionable article should be taken
possession of, conveyed or carried before a Magistrate. Clause (2) of Sub-sec. (1) of
Sec. 94 provides for taking into custody of every person found in such place and the
production of them before the Magistrate. Under Sub-sec. (2) of Sec. 94 the description
of objectionable articles has been given and it includes counterfeit coins, counterfeit
currency notes, forged documents, false seals and obscene objects.

2.27 Sec. 97 empowers any District Magistrate, Sub-Divisional Magistrate or

Magistrate of the First Class to issue a search warrant if he has reason to believe that
any person is confined under such circumstances which amounts to an offence. Upon
such search if any person is found, he shall have to be immediately taken before a
Magistrate who shall make such order as in the circumstances of the case seems
proper. Sec. 98 provides that upon a complaint made on oath regarding the abduction or
unlawful detention of a woman or a female under the age of 18 for any unlawful purpose,
the District Magistrate, Sub divisional Magistrate or the Magistrate of the First Class may
make an order for the immediate restoration of such woman to her liberty or for custody
of such female to her husband, parents or guardian. It further empowers the said
Magistrate to compel compliance with such order using such force as may be necessary.

GENERAL PROVISION RELATING TO SEARCHES

2.28 General provisions relating to searches are contained in Sec. 99 to 101 of

Chapter VII-C of the Code of Criminal Procedure, Under Sec. 100 persons in charge of a
closed place have an obligation to allow search. Sec. 101 provides for the disposal of
things found in search beyond jurisdiction.

MISCELLANEOUS

2.29 Sec. 102 to 105 of Chapter VII-D contain miscellaneous provisions. They relate
to the power of Police Officers to seize certain property, the power of a Magistrate to
direct search in his presence and the power of the Court to impound documents or
things produced before it.

26
POWER OF POLICE OFFICER TO SEIZE CERTAIN PROPERTY:

102(3)- Every police officer acting under sub-section (1) shall forthwith report the
seizure to the Magistrate having jurisdiction and where the property seized is such
that it cannot be conveniently transported to the Court, * [or where there is difficulty
in securing proper accommodation for the custody of such property, or where the
continued retention of the property in police custody may not be considered
necessary for the purpose of investigation] he may give custody thereof to any
person on his executing a bond undertaking to produce the property before the Court
as and when required and to give effect to the further orders of the Court as to the
disposal of the same.]

*[Provided that where the property seized under sub-section(1) Is subject to

speedy and natural decay and if the person entitled to the possession of such
property is unknown or absent and the value of such property is less than five
hundred rupees, it may forthwith be sold by auction under the orders of the
Superintendent of Police and the provisions of sections 457 and 458 shall, as nearly
as may be practicable, apply to the net proceeds of such sale.]

inserted by the CrPC (Amendment) Act, 2005 (25 of 2005), S.13 (to be effective from the date of its notification).

000

27
 CHAPTER – III

SECURITY FOR KEEPING THE PEACE AND

FOR GOOD BEHAVIOUR

3.1 The Criminal Procedure Code has provided machinery for prevention of
offences by investing the Executive Magistrates with a very potent power of requiring
persons to furnish security for keeping the peace or for good behaviour.

(i) Security for keeping the peace is taken from persons likely to commit
breach of the peace (Section 107); and
(ii) Security for good behaviour is taken from:

1) Persons disseminating seditious matter (Sec. 108)

2) Suspected persons (Sec.109) and
3) Habitual Offenders (Sec. 110)

PROCEEDINGS UNDER SEC. 107 OF CRIMINAL PROCEDURE CODE:

Security for keeping the peace (Sec. ,107)

3.2 Sub-Section (1) of Section 107 of the Criminal Procedure Code reads
as follows:

“When an Executive Magistrate receives information that any person is likely

to commit a breach of the peace or disturb the public tranquillity, or to do any wrongful
act that may probably occasion a breach of the peace, or disturb the public tranquillity
and is of opinion that there is sufficient ground for proceeding, he may, in the manner
hereinafter provided, require such person to show cause why he should not be ordered
to execute a bond with or without sureties, for keeping the peace for such period, not
exceeding one year, as the Magistrate thinks fit".

28
Ingredients of Sec. 107 (1)

3.3 The above provision contains the following ingredients:

(i) An Executive Magistrate receives information

(ii) That a person is likely to commit a breach of the peace or disturb the
public tranquillity, or
(iii) That a person is likely to commit any wrongful act that may probably
occasion a breach of the peace or disturb the public tranquillity; and

(iv) The Magistrate forms the opinion that there is sufficient ground to

proceed.
(v) Then the Magistrate may require such person to show cause why he
should not be ordered to execute a bond with or without sureties for
keeping the peace for such period not exceeding one year as the
Magistrate thinks fit.

Section 107 (2):

3.4 Under Sub-section (2) of Sec. 107 an Executive Magistrate can initiate
proceedings when:

(i) either the place where the breach of the peace or disturbance of public
tranquillity is apprehended is within his local jurisdiction; or

(ii) the person who is likely to commit the breach of the peace beyond such
jurisdiction is residing within his jurisdiction.

SINGLE PROCEEDING AGAINST TWO OPPOSING GROUPS ILLEGAL

The learned Magistrate, in one and the same proceedings has called upon the
members of both the parties to show cause why they should not be bound over for
maintaining peace. This procedure adopted by the learned Magistrate, initiating
proceedings under Sec. 107 Cr. P.C. against members of both the groups in one and the
same proceedings is also contrary to the provisions of law; because the persons

29
proceeded against were in the position of accused persons and they would be witnesses
in the case as against members of the other party. (Para 8).
(Mahadev V/s The Taluka Executive Magistrate, Raibag ILR 1982(1) Karnataka 471)

Important points to be noted by the Executive Magistrates

(A) Criminal P.C. (2 of 1974), Ss.107, 116(6) – Proceedings under S. 107 – Inquiry
lapsing due to expiry of six months – Accused approaching Magistrate to pass orders for
closing inquiry and proceedings – Magistrate was bound to pass such order (Para 5)

(B) Criminal P.C. (2 of 1974), Ss.107 and 111 – Proceedings under S.107 – Initiation of
– Quarrels between two private individuals – Initiation of proceedings under S. 107 Not
warranted – provision do not contemplate aforesaid situation (Para 7)

(C) Criminal P.C. (2 of 1974) Ss. 107 and 111 – Proceedings under S.107 Magistrate
directing accused to execute bond Magistrate must supply to accused whatever
incriminating material relied on by him to initiate proceedings under S.107 (Para 8)

(D) Criminal P.C (2 of 1974) Ss. 107 and 116- Proceedings under S. 107 – Direction to
accused to execute bond – Magistrate explaining to accused only substance of
allegations or complaint made against them by police – That does not dispense with duty
to issue show cause notice – Issue of show cause notice to accused was to why bond
should not be executed by them to maintain peace – Condition precedent. (Para 8)
(Smt. Christalin Costa and others, Petitioners v. State of Goa and others,
Respondents 1992 CR. LLJ 3608 (A)(B)(C)(D))

Magistrate must have Information:

3.5 So far as the first ingredient of Sub-sec. (1) of Sec. 107 is concerned,
it must be noted that the only requirement is that the Magistrate should have the
information. There is no restriction as to the source or the nature of the information on
which the Magistrate can take action. He may proceed on a report made by the police or
on the report made by any of his subordinate Magistrate or on any information given by
a private person/authority. The information may emerge from some previous

30
proceedings or trial in which the accused may have been acquitted. Since the
information is the foundation of the Magistrate's jurisdiction it must be clear and definite
so as to afford sufficient notice to the persons proceeded against. Pendency of a
prosecution for an offence is no bar for initiation of a proceeding under Sec. 107.
Persons proceeded against are not entitled to claim that Magistrate should disclose the
source of information.

Likely to commit a breach of the peace

3.6 According to the second ingredient, the information should be to the effect
that a person is likely to commit a breach of the peace or disturb the public tranquillity.
The factors which constitute or fulfil the requirements to prove that. a person is likely to
commit the breach of the peace or disturb the public tranquillity, depend upon the facts
and circumstances of the case.

WRONGFUL ACT

3.7 The third ingredient discloses that it would not be sufficient if a person is
likely to do any act that may probably occasion a breach of the peace or disturb the
public tranquillity. It is necessary that the act contemplated should be a wrongful one. A
rightful act cannot be a subject matter of a proceedings under Sec. 107 even though it
may prove to be the cause of a breach of the peace or the source of disturbance to
public tranquillity. Sec. 107 is intended to safeguard the interests of the public in general
and against such persons who indulge in wrongful acts which may occasion the breach
of peace or disturb the public tranquillity. Before proceeding under Sec. 107, the
Magistrate will have to ascertain the legal rights of the parties and examine whether the
person against whom proceedings are intended is likely to indulge in wrongful acts. The
information received against the person must show strong probability of a breach of the
peace of disturbance to public tranquillity on account of the wrongful acts likely to be
committed therein and not a bare possibility. The provisions contained in Sec. 202 and
Sec. 203 of the Criminal Procedure Code do not apply to a petition or application given
to an Executive Magistrate for taking action under Sec. 107, as, such petition or
application, cannot be termed as a "complaint" under Sec. 2(d} of the Criminal
Procedure Code. It is open to the Magistrate to refer the petition or application to any of
his subordinate Magistrates or to police or otherwise for inquiry and report.

31
Magistrate must be satisfied that there is sufficient ground:

3.8 The fourth ingredient goes to show that the Magistrate can take steps
under this Section only if he is of the opinion that there is sufficient ground for doing so.
He cannot initiate the proceedings merely on receipt of certain information. He must be
satisfied from the information and he should be of the opinion that there is sufficient
ground for the proceedings. If the Magistrate concludes that the apprehension of breach
of the peace is not well founded, he need not take action. The phrase" in the manner
hereinafter provided" in the section refers to the procedure prescribed in Sections 111 to
124. Once proceedings are started under Sec. 107 and the Magistrate has issued orders
under Sec. 111 and the party appears before him the Magistrate has to hold an inquiry
under Sec. 116(1} and cannot drop the proceedings without such inquiry. When part of
evidence has been adduced, the Magistrate will not be justified in dropping the
proceedings without considering such evidence and recording a finding on the points
involved. The proceedings cannot be brought to an end by the Government withdrawing
from the inquiry. Similarly it is not open to drop the proceedings for the reason that the
police did not produce any witness.

Nature of proceeding:

3.9 Since a proceeding under Sec. 107 does not amount to prosecution of an
accused person of any offence, no suit for malicious prosecution can be filed by the
opposite party after the proceeding under Sec. 107 initiated against him at the instance
of the other party fails.

Proceedings under Section 108 of Criminal Procedure Code:

Security for good behaviour from person disseminating seditious matters

(Sec. 108) :

3.10 Section 108 provides for demanding a bond for maintaining good
behaviour in the following circumstances:

32
 (i) An Executive Magistrate of First Class receives information:

(iii) that there is within his local jurisdiction a person who within or without
such jurisdiction either orally or in writing or in any other manner
intentionally disseminates or attempts to disseminate or abets the
dissemination of:

(a) any matter the publication of which is punishable under Section

124 A or Section 153 A or 153 B or Section 295 A of the Indian
Penal Code (45 of 1860), or

(b) any matter concerning a Judge acting or purporting to act in the

discharge of his official duties which amounts to criminal
intimidation or defamation under the Indian Penal Code (45 of
1860), or

(iii) that there is within his local jurisdiction a person who with or without such
jurisdiction makes, produces, publishes or keeps for sale, imports,
exports, conveys, sells, lets to hire, distributes, publicly exhibits or in any
manner puts into circulation any obscene matter such as is referred to in
Section 292 of the Indian penal Code (45 of 1860), and

(iv) The Magistrate is of the opinion that there is sufficient ground to proceed;

(v) then the Magistrate may in the manner hereinafter provided, require such
person to show cause why he should not be ordered to execute a bond
with or without sureties for his good behaviour for such period not
exceeding one year, as the Magistrate deems fit.

3.11 Ordinary residence of a person within the Magistrate's jurisdiction is enough

for invoking his jurisdiction, even though the person may be outside it at the time when
the order under Section 108 read with Section 111 is made. The Magistrate can take
action only, if, with reference to the information received, he forms the opinion that there
is sufficient ground for proceeding under this Section. In order to form such opinion he
has to determine two questions viz,

33
 (a) Whether such a person has been a party to dissemination of objectionable
matter as enumerated in Sub-section (1) of Section 108; and
(b) Whether there is a fear of repetition of such offence on his part so as to
necessitate binding him down for good behaviour.

3.12 Though the Magistrate acts primarily on the information received, he must
apply his mind to the antecedents of the person and the surrounding circumstances so
as to form his opinion as to the need for taking action under section 108. The phrase, "in
the manner hereinafter provided' in the section refers to the procedure prescribed in
Sections 111 to 124 of the Code of Criminal Procedure.

Intentionally disseminates or attempts to disseminate or abets the

dissemination of:

3.13 The issue to be examined in any proceeding under Section 108 is whether
there has been an intentional dissemination, attempt of dissemination or abetment of
dissemination of the offending material and that whether there is a fear of repetition of
such offence by the person proceeded against, so as to necessitate binding him down
for good behaviour. In each case, the issue would be a question of fact, to be
determined with reference to the antecedents of the person and to surrounding
circumstances. The mere act of, or attempt to, or abetment of dissemination of the
offending material is not sufficient for proceeding against a person under this provision,
unless it has been done, attempted, or abetted with a particular intention, and the real
intention of the person must be looked at by the Magistrate before forming an opinion
about there being sufficient ground for proceeding under Section 108 against the person.
The intention of the person has to be gathered generally by the Magistrate from the
language of the offending material itself, but other evidence is also admissible.

Or in any other manner:

3.14 The words "Or in any other manner" are meant to provide for the
contingency where any offending material covered by Section 108 has been
disseminated by other means than either orally or in writing, e.g., by newspaper,
gramophone records, radio, television, Internet, Mobile Phones or other modern audio
visual media.

34
Scope:

3.15 The test under this Section is whether the person proceeded against has
been disseminating offending matter and whether there is a fear of the repetition of such
offence. In each case it is a question of fact which will have to be determined with
reference to the antecedents of the person and other surrounding circumstances. A
person comes within the scope of the section if he disseminates matter which reveals an
intention to promote feelings of enmity between classes.

Proceedings under Section 109 of Criminal Procedure Code:

Security for good behaviour from suspect persons (Sec. 109):

3.16 Section 109 of the Criminal Procedure Code reads as follows:

When an Executive Magistrate receives information that there is within his

local jurisdiction a person taking precautions to conceal his presence and that there is
reason to believe that he is doing so with a view to committing a cognizable offence, the
Magistrate may, in the manner hereinafter provided, require such person to show cause
why he should not be ordered to execute a bond, with or without sureties, for his good
behaviour for such period not exceeding one year, as the Magistrate thinks fit.

Bond for good behavior cannot be asked in a proceeding u/s 107)

Facts: While initiating proceedings under S. 107 Cr.P.C., the petitioners were directed
by the Taluka Magistrate to show-cause why they should not execute a bond for one
year with one surety and to furnish security of Rs. 2,000/- for good behaviour. It was
urged that in a proceeding under S.107, the petitioners cannot be asked to execute a
bond for being of good behaviour and the High Court:

Held: Proceedings were instituted against the petitioners under S.107 Cr.P.C., for
keeping peace and not for being of good behaviour as is contemplated under Ss.108,
109 or 110 Cr.P.C. In view of S.116(3) (a) Cr.P.C., which states that in the absence of
any proceedings instituted under Ss. 108, 109, 110 Cr.P.C., no person shall be directed
to execute a bond for maintaining good behaviour, the show-cause notice issued by the

35
Taluka Magistrate was held to be illegal.
(Shivalingawwa & Ors. V. State of Karnataka-1984(1) Kar . L. J. 321)

Ingredients of Section 109

3.16 The Section has the following ingredients

(i) an Executive Magistrate receives information

(ii) that a person within his local jurisdiction is taking precautions to conceal
his presence;

(iii) that there is a reason to believe that he is doing so with a view

to committing a cognizable offence; and

(iv) then the Magistrate may require such person to show cause why he
should not be ordered to execute a bond for his good behaviour with or
without sureties for such period not exceeding one year as the Magistrate
thinks fit.

Receives Information

3.18 The information must be credible and contain the necessary particulars
to enable the person proceeded against to meet the charge against him.

There is within his local jurisdiction a person

3.19 Action can be taken against any person who is concealing his presence with
a view to committing cognizable offence, if such person is taking precautions to conceal
himself within the Magistrate's local jurisdiction whether he comes from outside or is a
resident of such jurisdiction or has a well known residence. What is relevant is (a) the
presence of the person within Magistrate's jurisdiction, and (b) his taking precautions to
conceal himself within such jurisdiction. Residence of such person is therefore irrelevant.

36
Taking precaution to conceal presence with a view to Committing a
cognizable offence:

3.20 Now coming to Second and Third Ingredients i.e.,:

(i) taking precautions to conceal his presence; and

(ii) the concealment must be with a view to committing a cognizable offence.

Thus if one of them is absent, then there can be no order under Section.
109. Taking precautions for concealing one's presence merely to avoid observation is
not an offence, even though the concealment may be for avoiding observation by the
Police, or by a portion of the Society at large. This section should be used with proper
discretion and should never be tried to be applied to a person merely found walking at
night time, in a place which is open to the public or merely found trying to conceal his
identity by covering his face without trying to conceal his presence or merely telling a
wrong name and address to conceal his identity without in any way taking any
precautions for concealment of his presence. There must be some definite attempt at
concealment. The words "conceal his presence" are very wide and can cover cases
ranging from concealment of bodily presence in a house, or a grove, or a field, or under
a bridge, etc., to cases of concealing his presence by mask, or by disguising himself by
a uniform or in some other manner. Mere concealment would not justify an order under
this section unless it is resorted to with the object of committing a cognizable offence.
There must be some material on the basis of which the deductions could be made that
the concealment was for the purposes of committing a cognizable offence and mere
speculation would not be enough. The phrase in the manner hereinafter provided in the
section refers to the procedure prescribed in Sections 111 to 124 of the Code.

Proceedings under Section 110 of the Criminal Procedure Code:

Security for good behaviour from habitual offenders (Sec. 110):

Scope and object:

3.21 The object of this section is only preventive and not punitive. This section is
not intended to afford the police a means of keeping a suspected person under detention

37
until they are able to work out a case against him. Where a person has lived all his life in
a locality and has never even been accused before a court of law for any crime, far less
convicted, there is absolutely no justification for making any presumption that he is a
criminal, not to say, a habitual criminal, This section is intended to deal with ex-convicts,
or habitual criminals, and dangerous and desperate outlaws who are so hardened and
incorrigible that the ordinary provisions of the penal law and the moral fear of condign
punishment for crime are not sufficient deterrents or adequate safeguards for the public.
For proceedings under Section 110 there must be proof of number of convictions
regarding previous acts or course of conduct by evidence of general reputation. The
Magistrate commits illegality if he passes a final order for binding down the counter-
petitioner without passing a preliminary order under section 111 charging him under one
of the other of the clauses of this section and without holding a judicial enquiry as to the
truth or otherwise of the information received by him on securing his presence by issuing
summons or warrant under section 113. The Magistrate should not initiate a proceeding
against a person immediately after he had been acquitted of an offence unless a very
strong case is made out against him. The Magistrate cannot remand delinquent to
further custody in a proceeding under Section 110.

Credible Information

3.22 Credible information coming from a reliable source is the foundation of a

Magistrate's jurisdiction. The Magistrate cannot proceed unless there is such information
as is considered by him sufficient for taking action under this Section. There is no limit to
the nature or as to the source from which the information is derived, but an order under
this section should not be based on the Magistrate's personal knowledge or on mere
gossip and vague rumour.

3.23 As the charge against the person proceeded against would be the
information received by the Magistrate, the Magistrate must in the preliminary order refer
to all the materials so as to enable the person concerned to meet the charge. A local
inquiry is most appropriate before instituting proceeding under Section 110, but once the
accused are before the court, the case must be decided on the evidence alone and not
on the basis of the local inquiry.

38
Within his local Jurisdiction:

3.24 It is not necessary that the person should have a permanent residence
within the local limits of the magistrate's jurisdiction. The words "within his local
jurisdiction" do not mean residing within the jurisdiction, but only mean literally or
physically present within the territorial limit of the magistrate's jurisdiction at the time of
the proceedings. Having regard to the plain language of this section, it is clear that the
Magistrate is given power to deal with persons who have a general reputation as bad
characters and who happen to be within his jurisdiction, no matter whether they are
residents of a place within his jurisdiction or not. The reason is that the most dangerous
criminals have no well-known residence anywhere and wander from place to place and it
should be left in the power of the magistrate to deal with them where the police or the
magistrate could be sure, at any time, of finding them.

Habit or habitually:

3.25 Clauses (a) to (i) of this section would become applicable only if that person
is an offender in respect of any of the offences mentioned in these clauses by habit.
Both the words" Habit & Habitually" have been used in the sense of depravity of
character as evidenced by the frequent repetition or commission of offences. They mean
repetition, or persistence in doing an act, and readiness to commit them again whenever
there is an opportunity but do not include an inclination by nature for committing offences
which does not manifest itself in repeated commission of offences. Habit is proved by an
aggregate of acts, or a number of previous convictions, but not by only one or two
instances, or one or two previous convictions. The number of facts required for an
inference of habit would depend upon circumstances of each case. Habit can also be
proved by providing that the person has committed offences to such an extent that his
general reputation is that of a habitual offender, but mere suspicion should not be the
cause for such reputation.

Desperate and dangerous persons hazardous to the community:

3.26 In order to bring a person under this clause, it must be shown that he, has
such a reckless disregard for the safety of the person and property of his neighbours that
his being at large would be detrimental to the community. It is to be noted however that

39
the word "habit" or "habitually" not having been used in the present clause, a person
may be desperate and dangerous even if he is not a habitual offender. His desperate
and dangerous character is not dependant on the number of past offences or convictions
but on the nature of his conduct e.g., an attack against several person indiscriminately at
a time. It follows that such desperate character need not necessarily be proved by
evidence of specific Acts committed by him since such character can be proved by
evidence of general repute.

3.27 The characteristic of being a desperate and dangerous character is a

personal attribute and should be proved separately against every individual charged with
that attribute. A man of desperate and dangerous character in clause (g) means a man
who has a reckless disregard of the safety of the person and of the property of his
neighbours. Evidence of acts of extortion committed by a person, unless those acts were
accompanied by acts causing danger to life and property, is not sufficient to bring the
case under this clause.

3.28 The following persons, though they are undoubtedly persons of bad
character, do not come under this clause as men of "desperate and dangerous"
character:

A person who had been arrested on suspicion of the commission of a dacoity

and released; and habitual gambler, especially if he is a man of some means; a person
who had been annoying the neighbours in various ways by knocking at their doors at
night or throwing brickbats over the roofs, or who had been annoying respectable
women; a person who attempts to seduce married women and behaves indecently and
immodestly to them; a person who has been caught while committing adultery; a person
who is a nuisance to his neighbours, declines to pay debts, abuses his neighbours, and
makes indecent overtures to school boys ,who pass by his shop; a person of a litigious
disposition or a person, who promotes litigation and is said to have had considerable
influence with patwaris; a person who is found to be an undisciplined local dictator. A
man who is quarrelsome engages in petty assaults with his neighbours and throws
bricks into people's houses or on to the streets does not come within this clause, The
fact that a man is by his temperament quarrelsome and that he occasionally gives
threats does not make him a desperate character or one who is dangerous to the
community.

40
Bond with Surety:

3.29 Surety is obligatory and not optional as in sections 107, 108 and 109 of the
Code. The phrase "in the manner hereinafter provided" in the section refers to the
procedure prescribed in sections 111 to 124 of the Code.

3.30 Sec. 109 and 110 overlap one another. A fact not relevant under Section 109
may form the basis of a proceeding under Section 110. But a person cannot be bound
over under both Section 109 and 110, nor can an order be passed under Section 110
against a person during the continuance of an order under Section 109.

SECURITY FOR GOOD BEHAVIOUR FROM HABITUAL OFFENDERS:

110(f)- habitually commits or attempts to commit or abets the commission of-

(i) any offence under one or more of the following Acts, namely:-
(a) the Drugs and Cosmetics Act, 1940 (23 of 1940);
(b) the Foreign Exchange Regulation Act, 1973(46 of 1973);
(c) the Employees Provident Funds [and Family Pension Fund] Act, 1952
(19 of 1952);
(d) the Prevention of Food Adulteration Act, 1954 (37 of 1954);
(e) the Essential Commodities Act, 1955 (10 of 1955);
(f) the Untouchability (Offences) Act, 1955 (22 of 1955);

(g) the Customs Act, 1962 (52 of 1962); † (***)

*(h) the Foreigners Act, 1946(31 of 1946); or

(ii) any offence punishable under any other law providing for the prevention of
hoarding or profiteering or of adulteration of food or drugs or of corruption, or

† The word or omitted by the CrPC (Amendment) Act, 2005 (25 of 2005), S.14 (to be effective from the date of its notification).

* inserted by the CrPC (Amendment) Act, 2005 (25 of 2005), S.14 (to be effective from the date of its notification).

Order under Section 111 of the Criminal Procedure Code

3.31 When a Magistrate gets information as shown in Sec. 107 (1), 109 and 110
and he is of the opinion that there is sufficient ground for proceeding further, the first
thing he has to do, is to pass order in writing under Sec. 111, setting forth:

41
 (i) the substance of the information received;

(ii) the amount of the bond to be executed;

(iii) the term for which it has to be in force; and

(iv) the number, character and class of sureties, if any required.

The order under Sec. 111 is of the nature of a charge and it can be amended
if found expedient on a subsequent date. The only condition is that a copy of such
amended order shall be served on the person proceeded against and if any cause is
shown by him against such amended order, it can be taken into account.

3.32 If such person is present at the court, the order shall be read over and
explained to him (Sec. 112). If such person is not present in the court, the Magistrate
shall issue him a summons requiring him to appear (Sec. 113). If he is in custody, a
warrant may be issued directing the officer in whose custody he is, to bring him before
the court. Proviso to Sec. 113 states that whenever it appears to such Magistrate, upon
the report of a police officer or upon the information (the substance of which
report/information shall be recorded by the Magistrate), that there is reason to fear the
commission of a breach of the peace, and that such breach of the peace cannot be
prevented otherwise than by the immediate arrest of such person, the Magistrate may at
any time issue a warrant for his arrest.

Summons or warrant to be accompanied by order under Section 111.

3.33 It is obligatory that every summons or warrant issued under Sec. 113 is
accompanied by a copy of the written order of the Magistrate under Sec. 111 and is
delivered to the person to be served (Sec. 114). As an order passed under Sec. 111
forms the very basis of the proceedings under Sec. 107, any lapse to enclose the order
passed under Sec. 111 to the summons or warrant as provided in Sec. 114 would cause
prejudice to the person proceeded against. Sufficient time will have to be given to the
person proceeded to show cause against the order and to prepare his defence. The
provisions of Chapter VI of the Criminal Procedure Code relating to summons and
warrants apply to summons and warrants issued under the provisions of Chapter VIII of
Criminal Procedure Code. The person proceeded against may appear through a

42
Pleader, if the Magistrate dispenses with the personal appearance of the person
proceeded against (Sec. 115).

Bond for maintaining Law and Order outside the Scope of S. 107

Section 107 of the Code requires that when an Executive Magistrate receives
information that any person is likely to commit a breach of the peace or disturb the public
tranquility or to do any wrongful act that may probably occasion a breach of the peace or
disturb the public tranquility and is of opinion that there is sufficient ground for
proceeding, he may require such person to show cause why he should not be ordered to
execute a bond for keeping peace for such period not exceeding one year as the
Magistrate thinks fit. Section 111 of the Code requires that when a Magistrate acting
under Section 107 deems it necessary to require any person to who cause under
Section. 107 he shall make an order in writing setting forth the substance of the
information received, the amount of the bond to be executed, the term of which it is to be
in force and the number, character and class of sureties, if any required. (para 4)

The order in question is clearly erroneous to the extent or calling upon the
petitioners to execute a bond as stated therefore maintaining law and order at
Hirehadagli village for a period of one year. To this extinct, the order in question is
beyond the scope of section 107 of the code (Para 5)
(Nandi Bevoor Virupakshappa Vs. State of Karnataka - 1985(4) KLJ 4025)

3.34 When an Order under Sec. 111 has been read over or explained under Sec. 112
to a person present in the court or when any person appears before the Magistrate in
compliance with a summons or warrant issued under Sec. 112, the Magistrate shall
proceed to inquire into the truth of the information upon which action has been taken and
to take further evidence as may appear necessary [Sec. 116 (1)].

ORDER UNDER SECTION 111

Under S.111 it is obligatory on the Magistrate to set out in the preliminary order
the substance of the information received. Failure to do so vitiates the proceedings.
(1976) 2 Kar.LJ.458 rel on. The preliminary order contemplated under S.111 is a judicial
order in the nature of a charge, it has to be drawn up carefully and must contain so much

43
of the information received by the Magistrate as would enable the person or person
sought to be proceeded against to know as to what cause he or they have to show.
(Chandsab v. State of Karnataka Crl. R.P.432 & 433/79 dt.3.3.80- 1980(2) Kar. LJ
Short Notes 112)
INQUIRY u/s 116

3.35 Sec. 116 (2) provides that as far as practicable, the inquiry shall be made in
the manner prescribed for conducting trial and recording evidence in summons cases.
(Chapter XX & Chapter XXIII of the Code). The inquiry contemplated in Sec. 116 is a
judicial inquiry and should be based on legal evidence. Sec. 274 of Criminal Procedure
Code which deals with the recording of evidence in summons cases and inquiries
prescribes that as the examination of each witness proceeds, the Magistrate shall make
a memorandum of the substances of his evidence in the language of the Court. A
proviso is however made to the effect that when the Magistrate is unable to make such a
memorandum himself, he shall after recording the reasons for his inability, cause such
memorandum to be made in writing or from his dictation in open court. The
memorandum shall be signed by the Magistrate and will form part of the record.

Interim Bond

3.36 Sub-Section (3) of Sec. 116 provides that if the Magistrate concerned thinks
fit that immediate measures are necessary pending completion of the inquiry, for the
prevention of the breach of peace or disturbance to public tranquillity, he may for the
reasons to be recorded in writing direct the person in respect of whom an order under
Sec. 111 has been made, to execute a bond with or without sureties for keeping the
peace until the completion of the inquiry and may detain him in custody until such bond
is executed or in default of execution, until such inquiry is concluded. Proviso to Sub-
sec. (3) of Sec. 116 stipulates that conditions of such a bond whether as to the amount
thereof or as to the provisions of sureties or number thereof or the pecuniary extent of
their liability shall not be more onerous than those specified in order under Sec. 111. An
order under Sec. 116 (3) can be passed only in the case of an emergency where
immediate measures are necessary. It cannot be resorted to as a matter of routine. The
Magistrate need not record any evidence or hold an inquiry before passing an order
under Sec. 116 (3). He can act upon the application or the sworn testimony of a Police
Officer to the effect that an emergent situation exists and it is necessary to take

44
immediate measures. It should be noted that an order under Sec. 116 can be caused
only in a case where an order under Sec. 111 has been passed and not otherwise. In
order to invoke powers under Sec. 116 (3), it is necessary that an inquiry under
Sec. 116 (1) should have commenced.

IMPORTANCE OF PRELIMINARY ORDER UNDER SECTION 111

Secs. 106 to 119 reveal that a clear distinction is made in the object of obtaining
security under Secs, 106 & 107 of the Code on the one had, in which case the security
to be obtained is one for keeping the peace and Secs. 108, 109, and 110 of the code on
the other, in which case the security to be obtained is one for good behaviour.

An order which is bereft of the requirements of Sec.111 of the Code, such as, the
substance of information received, the amount of the bond to be executed, the terms for
which it is to be in force and the number, character and class of sureties (if any)
required, would not be valid.

A legal and valid preliminary order under Sec.111 is sine qua non for initiating the
proceedings under Sec.107 of the Code. In the other words, in a proceeding under
Sec.107 of the Code, the preliminary order under Sec.111 is the starting point or the
very foundation of it. Taking action u/sec.107 before making a preliminary order under
Sec.111 is a serious defect.

If the proceeding instituted is invalid in law for failure to comply with Sec.111 of
the Code, then the other proceedings taken subsequent thereto will not have any legal
sanction.

Where in a proceeding under sec.107, the order under Sec.116(3) is devoid of

reasons for calling upon the respondents to enter into interim bonds and called upon the
respondents to execute bonds for good behaviour, which is specifically prohibited by
CI(a) of the proviso, the order is invalid.
(Thimmaiah T.N. & Ane. V. State of Karnataka 1978(2) Kar. L.J. 324)

45
APPLICATION OF MIND BY MAGISTRATE

Criminal P.C 1974, Ss. 107, 111, 113, 116 – Proceedings under – Initiation of –
application of mind by Executive Magistrate to facts of case – Necessary – Execution of
bond – order passed without complying with statutory revisions – Illegal.

On receipt of the information given by the police the Magistrate is bound to

record him opinion as contemplated by S.107 and thereafter has to prepare the notice
under S.111 which must contain the substance of the information so received and is
bound to send the copy of such notice along with the summons to the person concerned.
The stage for passing any order under S. 116(3) can arise only after the summons and
the notice as required by Ss.111 and 113 have been served on the concerned persons
and the inquiry has commenced. (Para 9)

In the instant case on receipt of information from police the Magistrate made up
is mind to required the concerned person to execute bonds as an immediate necessary
measure under S. 116(3) of the Code. The Executive Magistrate has not recorded his
satisfaction with regard to the facts as to whether there exists any apprehension of
breach of peace at their hands before directing the issuance of notice to them even in
the notices prepared under S.111 the substance of the allegation against them has not
been incorporated and only a vague fact has been mentioned in the notice that they had
been threatening the complainant. Nothing has been mentioned as to when such
threats have been held out.

Held that the question of taking any immediate measures against the concerned
persons can arise only after they had appeared and the Magistrate is to be satisfaction
that some immediate measures are required to be taken and for that purpose any bond
is required to be obtained from them under S.116(3) or not. The orders made by the
Executive Magistrate on the information by police and the notices issued under S. 111
were not in consonance with the provisions of law (Para 6,10)
(Tavinder Kumar and another v The State – 1990 Cr L J 40)

46
Joint Inquiry:

3.37 Sec. 116 (5) provides that a joint inquiry can be held against two or more
persons where they have been associated together in the matter under inquiry. The
discretion to hold a joint inquiry arises only in such cases where the persons proceeded
against have acted in a concerted manner or there is something in the nature of
conspiracy in respect of the various acts alleged against them. It is essential that the
person should have been associated in the matter under inquiry. Though Sub-sec. (5) of
Sec. 116 provides for a joint inquiry, the court has still a duty to give separate and
distinct findings against each one of the persons associated on merits of the evidence.

Time limit for Inquiry:

3.38 Sec. 116 (6) prescribes a time limit for the inquiry. The inquiry must be
completed within a period of six months from the date of commencement, failing which
the proceedings shall stand automatically terminated on the expiry of that period, unless
for special reasons to be recorded in writing, the Magistrate otherwise directs. If a
person is detained pending such inquiry, the proceedings against him shall stand
terminated, on the expiry of the period of six months of such detention [Proviso to Sec.
116 (6)]. It is open to the aggrieved party to appeal to the Sessions Judge against any
direction passed by the Magistrate under Sec. 116 (6) permitting the continuance of the
proceedings beyond the period of six months and the Sessions Judge can vacate the
direction if he is satisfied that it was not based on any special reason or was perverse.

Order to execute Bond:

3.39 If after inquiry, it is proved, that it is necessary that the person proceeded
against should execute a bond with or without sureties, the Magistrate shall make an
order accordingly. The order shall, however, be subject to the directions contained in
provisions (a), (b) and (c) of Sec. 117 which are as follows:

(a) No person shall be ordered to give security of a nature different from or of

an amount larger than or for a period longer than that specified in the
order made under Sec. 111 of Criminal Procedure Code.

47
 (b) The amount of every bond shall be fixed with due regard to the
circumstances of the case and shall not be excessive, and

(c) If the person proceeded against is a minor the bond shall be executed by
his sureties (Sec. 117).

3.40 If, however, after inquiry, it is not proved that it is necessary that such person
should, execute a bond, the Magistrate shall make an entry on the record to that effect
and discharge him or if he is in custody only for the purpose of the inquiry, shall release
him (Sec. 118).

3.41 If the person In respect of whom an order requiring security is made under
Sec. 117, is at the time such order is made, sentenced t6 or undergoing imprisonment,
the period for which surety is required, shall commence on the expiry of such sentence.
In other cases such periods shall commence on the date of such order unless the
Magistrate for sufficient reasons fixes a later date (Sec. 119). The bond executed by
such a person shall bind him to keep the peace (Sec. 120). A Magistrate may refuse to
accept any surety offered or may reject any surety previously accepted by him or by his
predecessor on the ground that such surety is an unfit person for the purposes of the
bond. However, before refusing to accept or reject any such surety, the Magistrate must
hold an inquiry on oath into the fitness of the surety or cause such inquiry to be held and
a report made thereon by the Magistrate subordinate to him. Before holding the inquiry,
the Magistrate will have to give reasonable notice to the surety and to the person, by
whom the surety was offered and shall have to record the substance of the evidence
adduced before him on consideration of evidence so adduced before him or before the
Magistrate to whom he had referred the matter and the report of such Magistrate, if the
Magistrate is satisfied that the surety is an unfit person for the purpose of the bond, he
shall make an order refusing to accept or reject as the case may be such surety and
record his reasons for so doing. Before passing an order rejecting any surety who has
previously been accepted, the Magistrate shall issue summons or warrant as deemed fit
and cause the person for whom the surety is bound to appear to be brought before him
(Sec. 121).

48
Crl.P.C 1973 (2 of 1974) Ss 111 & 116(3) – Direction to execute bonds stage for M.S.
Nesargi & Nagappa JJ : When respondents appeared before the magistrate in
response to the preliminary order issued under S.111 Cr.P.C at that stage the magistrate
cannot direct the respondents to execute bonds. He had no power to direct the
respondents to execute bonds as he had not passed an order under S.116(3) Cr.P.C.
(State of Karnataka V/s Kumar 1981 (1) KLJ 21)

Consequences of not furnishing security:

3.42 The consequences of not furnishing the required security are found in Sec.
122 (1) of Criminal Procedure Code. If a person against whom an order has been
passed fails to furnish security as per the order passed under Sec. 117 on or before the
date on which the period of such security commences, he shall be committed to prison.
If such a person is already in prison, the detention will continue until the period for which
the order has been passed expires.

3.43 The consequences of the breach of conditions of surety bond are found in
Sec. 122 (1) (b). If any person after having executed a bond, with or without sureties for
keeping the peace in pursuance of any order of the Magistrate under Section 117 is
proved to the satisfaction of the Magistrate or his successor in office to have committed
breach of bond, the Magistrate may after recording the grounds of such proof to order
that the person be arrested and detained in prison until expiry of the period of the bond
and it shall be without prejudice to any other punishment or forfeiture to which the said
person is liable to in accordance with law.

3.44 When a person has been ordered to give security for a period exceeding one
year, the Magistrate shall, if he does not give security, issue a warrant directing him to
be detained in prison pending orders of the Sessions Judge and the proceedings shall
be laid without delay before the Court [Sec. 122 (2)]. Such court after examining such
proceedings and requiring from the Magistrate any further information or evidence which
it thinks necessary, and after giving the concerned person a reasonable opportunity of
being heard may pass such order as it thinks fit. Under no circumstances can a person
be imprisoned for failure to give security for more than three years [Sec. 122 (3)]. Sub-
sec. (4) of Sec. 122 provides that if there is a joint inquiry and if the case of any of them
is referred to the Sessions Judge, as provided under Sub-sec. (2) of Sec. 122 the case

49
of other person shall also have to be referred. Under Sub-Sec. (5), the Sessions Judge
has been invested with the power to transfer the proceedings laid before him to any
Additional Sessions Judge or Assistant Sessions Judge. The order passed by such
Additional or Assistant Sessions Judge would have the same effect as if passed by the
Sessions Judge. The person against whom an order of imprisonment is passed for
default in furnishing security can furnish the security to the officer in charge of the jail
also. Under Sub-sec. (6) such officer in charge of the jail shall have to refer the matter to
the court or Magistrate who made the order and shall have to await the orders of such
court or the Magistrate. The nature of imprisonment for failure to give security for
keeping the peace shall be simple [Sec. 122 (7)].

3.45 Whenever the District Magistrate is of the opinion that a person imprisoned for
failing to give security, may be released without hazard to the community or to any other
person, he may order for the release of such person, in cases where the order has been
passed by the Executive Magistrate under Section 117 [Section 123 (1 )]. An order of
discharge made under this section may be without any conditions, or on any condition,
which such person accepts [Sec. 123 (3)]. In case the conditions are prescribed, the
same shall cease to be operative on the expiry of the term for which such person was
ordered to give security. If any of the conditions on which a person is discharged, are not
fulfilled, the District Magistrate may cancel the same [Sec. 123 (5)]. On such
cancellation of a conditional order, the person may be rearrested by any Police Officer
without warrant and shall thereupon be produced before the District Magistrate. Where
the order under Sec. 117 has been passed by the. Executive Magistrate, unless such
person gives security in accordance with the terms of the original order for the unexpired
portion of the term, the District Magistrate may remand him to undergo imprisonment for
such unexpired portion. [Sec. 123 (7)]. A person remanded to prison under Sec. 123 (7)
may be released at any time on giving security in accordance with the terms of original
order, before the District Magistrate / Executive Magistrate [Sec. 123 (8)]. The District
Magistrate may also cancel the bond for keeping peace or good behaviour at any time,
for sufficient reasons to be recorded in writing [Sec. 123 (9)]. The circumstances under
which the power of cancelling a bond is not enumerated in this section. The two possible
circumstances upon which such cancellation could be made are:

(a) If the Magistrate's order demanding execution of the bond was not legal
or proper, e.g., there was no ground for the view that a breach of peace

50
 or any 'of the relevant offences was likely, so that the bond should not
have been required or that the order was void.

(b) Circumstances, which render the continuance of the bond unnecessary,

e.g., apprehension of breach of peace has since ceased.

The District Magistrate may also make an order reducing the amount of
security, or the number of sureties or the time for which security has been required, in
case of persons imprisoned for failing to produce security [Sec. 123 (2)].

Right of surety to cancel bond

3.46 A surety has a right to apply to the court to cancel the bond executed by him
[Sec. 123 (10)]. When such application is made, the court shall have to issue summons
or warrant as it thinks fit, requiring the person for whom such surety is given is bound to
appear before it. When such person for whose appearance a summons or warrant has
been issued under proviso to Sub-sec. (3) of Sec. 121 or under Sub-sec. (10) of Sec.
123, appears before the Magistrate, he shall cancel the bond executed by such person
and shall order such person to give, for the unexpired portion of such bond, fresh
security of the same description as the original security.

000

51
 CHAPTER – IV

UNLAWFUL ASSEMBLIES

4.1 An important branch of preventive provisions contained in the Criminal

Procedure Code deals with an assembly which is unlawful or which is likely to cause a
breach of the peace. Sec. 129 of the Code empowers any Executive Magistrate or an
officer in charge of a police station to command such an assembly to disperse.

Dispersal of assembly by use of civil force:

4.2 'Unlawful assembly' has been defined in Sec. 141 of the Indian Penal Code.
If an assembly comes within the meaning of this provision. there would be no difficulty
for the Magistrate to command it to disperse. It depends upon the Magistrate to assess
at what point of time it can safely be held that the assembly which has been lawful from
its inception is exhibiting a pattern of behaviour which could lead one to think that it is
likely to cause disturbance of public peace. It is not sufficient if in the opinion of the
Magistrate the lawful assembly is showing such behaviour that is likely to cause
disturbance of public peace. In arriving at a conclusion whether the assembly is likely to
cause disturbance of public peace, the conduct and behaviour of the assembly shall
have to be considered objectively and thereupon an order shall have to be issued
commanding the same to disperse. Whether the command is legal or not depends upon
the conduct or behaviour of the assembly preceding the command and not on the
character of events that follow the command.

When to employ force:

4.3 If any assembly which has been commanded to disperse does not disperse
or conducts itself in such a manner as to show a determination not to disperse, the
Executive Magistrate or Police Officer concerned may employ force to disperse it. He

52
may also seek the assistance of any male person and if necessary arrest and confine
persons forming part of such assembly. Any male person when called upon by the
Magistrate or Police Officer demanding his aid is bound to assist. (Sec. 37 of Criminal
Procedure Code). For disobeying the command to disperse in case of an unlawful
assembly, the offenders are punishable under Sec. 145 of the I.P.C and in case of any
other assembly, the offenders are punishable under Sec. 151 of the Indian Penal Code.

4.4 Before resorting to force. it would be appropriate to arrest such of the persons
whom the Magistrate considers to be the ring-leaders or important persons and see
whether the situation can be effectively dealt with. If the assembly persists in holding
together and exhibits determination or a firm behaviour not to disperse the next proper
step would be to give a warning and if inspite of the warning it persists, then it would be
appropriate to use force.

4.5 It Is impor1ant to know the distinction between Sub-section (1) and Sub section (2)
of Soc. 129. Under Sub-section (2) of Section 129 even if an assembly has not been
commanded to disperse, the Magistrate would be having the power to disperse the
same if it conducts itself in such a manner as to show determination not to disperse.

Criminal P.C., S.144, S.129 – POLICE ATROCITIES – RIGHT TO LIFE –Unlawful

assembly – Firing by D.A.R. Police without lawful orders from authorities – Death of one
person – Vicarious liability of State Govt. – State must compensate the damages caused
to dependants of deceased.

Act of State – Firing by police on unlawful assembly without valid order – Act could not
be said to be in exercise of sovereign power of State.

Police firing – No valid orders – Killing one person – State vicariously liable.

Right to life – Unlawful assembly – Police firing without lawful orders killing one person –
State must repair damage done by its officers.
Constitution of India, Art. 21, Art. 162, Art. 166
Karnataka Police Manual, Cl. 1180.

53
Using Force without Valid Orders

Where a person was killed in firing opened by District Armed Reserve Police who
were called out of apprehension of disturbances to control the unruly mob but there was
no sufficient evidence to show that the mob had become uncontrollable and resorted to
violence that might have necessitated opening of fire and it was clear from evidence of
Taluka Executive Magistrate and Officer-in-Police Station that neither of them had given
orders of opening of fire and eye-witnesses had given several different versions of
incident which were inconsistent with one another, it was patently clear that the firing
could not be said to be done in delegation of the sovereign power of the State and State
could not plead immunity on this ground. Though the policemen were employed by the
State to quell rioting, if necessary by use force, the very exercise of their power
independently of any lawful order from the competent Police Officer or the Magistrate,
cannot be considered as an act that protects them under the sovereign powers of the
State. (Paras 10, 12, 13, 15. 16)
(State of Karnataka v. B. Padmanabha Beliya KARNATAKA HIGH COURT - 1992
CRI.L.J.634)

Use of armed forces to disperse assembly:

4.6 If the unlawful assembly does not disperse by the use of Civil force as
contemplated in Sec. 129, then the Magistrate of the highest rank, who is present may
cause it to be dispersed with the help of the armed forces. Any officer in command of a
group of persons belonging to the armed forces, may be called upon to disperse such
assembly with the help of the armed forces under his command, and to arrest and
confine such members forming part of the assembly as the Magistrate may direct or to
arrest and confine the members in order to disperse the assembly or to have them
punished according to law. Every such officer shall obey the requisition of the Magistrate
and use minimum force and cause minimum injury to person and property necessary to
disperse the assembly and arrest and detain such persons (Sec. 130).

54
Power of certain armed force officers to disperse assembly:
4.7 When (1) public security is manifestly endangered by such assembly and (2)
no Executive Magistrate can be communicated with, any commissioned or Gazetted
Officer of the Armed Forces may disperse such assembly with the help of the armed
forces under his command and may arrest and confine any person forming part of it. But
if, while he is acting under this section it becomes practicable for him to communicate
with an Executive Magistrate, he shall do so and shall thenceforward obey the
instructions of the Magistrate, as to whether he shall or shall not continue such action
(Sec. 131).

Protection for acts done In good faith:

4.8 For the acts done in good faith under the provisions of Sec. 129 and Sec.
130, protection has been given under Sec. 132. In order to prosecute any Executive
Magistrate for any act done under the provisions of Sec. 129 and Sec. 130, previous
sanction of the Government would be necessary.
Dispersal of Mobs and Mob Firing:

4.9 The following instructions regarding dispersal of Mobs and Mob Firing
incorporated in Order No. 1180 of Karnataka Police Manual, Vol. II, are reproduced
below for the guidance of Executive Magistrates:

"1180. (1) ...

(2) An unlawful assembly may be ordered to disperse by a Magistrate or

an Officer-in-charge of a police station and, when so ordered, it is the duty of the
members of the unlawful assembly to disperse. Any Police Officer may, without warrant
assert the members of an unlawful assembly and thus disperse the assembly. The
following points have to be carefully remembered:

(a) The Police must invariably make it a point to secure the presence of a
Magistrate where a breach of the peace necessitating the use of force is
anticipated.

(b) Where an actual situation arises and a Magistrate if present at the spot,
he should be in complete charge of the situation, and he has in law all the

55
 necessary legal powers to order any Police Officer to assist him in
handling the situation.

(c) The senior most Police Officer present is bound to assist the Magistrate
by mobilizing the available Police Force and utilising it to maximum extent
possible.

(d) When the Magistrate is present., the Officer in command of the police will
act as ordered; but when he is alone and acting on his own authority, he
shall understand distinctly that no firing of any kind can be commenced
until some overt act of violence is committed by the rioters.

(e) If the crowd becomes defiant and the use of tear gas, lathi charge or both
are inexpedient or fail in their purpose, resort may be had to the use of
fire-arms. The Magistrate is responsible for taking a decision as to when
an unlawful assembly has to be dispersed by force and also as to the kind
of force to be used. As far as possible, use of tear smoke or lathi charge
or both should be made before resorting to the use of fire-arms. Lathi
charge should not be attempted if the strength of the police force is not
adequate to create an effect on the crowd.

(f) In order that a Magistrate accompanying the police during disturbances

may be marked out as such, he will wear on the right arm above the
elbow, a distinctive arm band "4" wide and red in colour with the letter "M"
in blue about 2 1/2" high.

(g) A definite opinion must be formed by the Officer ordering the dispersal of
the unlawful assembly by force, that it could not be dispersed or harm
prevented without the use of the type and amount of force actually used.
He should be able to say that but for the use of the type and amount of
force actually used, the unlawful assembly would have caused a breach
of the peace or violence to person and property or loss of life. The point to
be borne in mind is not merely that force was necessary but also that the
kind and amount of force actually used was necessary.

(h) The use of force should not be attempted if the force available for use is

56
 not adequate to control and resist the unlawful assembly, for it will be
foolhardy invitation to certain disaster.

(i) After the Magistrate has decided on the kind of force to be used, the
officer in charge of the Police is solely responsible for deciding the exact
amount of force to be used, the manner of using it and the settling of the
details of the operations connected with the use of the force; the Police
Officer should, of course, bear in mind the principle that no more force
than is necessary should be used.

(j) The order of fire shall be given only in the last resort, when it is
impossible to disperse the mob by any other means; but when the order
is given, the firing shall be at once effective, and sufficient, with the
minimum of injury, to convince the crowd of the necessity of immediate
dispersing.

(k) When a police party is formed for dispersing an unlawful assembly, it

should be numbered and told off into two or more sections, if the size of
the party and the time available admit of it. Bayonets must be fixed as
soon as possible.

(l) All commands to the police are to be given by the Officer in command of
the party. The police are not on any account to fire except by word of
command of their officer, who is to exercise a humane discretion
respecting the extent of the line of fire.

(m) The Magistrate shall communicate his orders, as a general rule, to the
police through the Police Officer in command.

(n) As soon as it becomes necessary to resort to the use of firearms with

reference to Clause (e) above, the officer in command of the party will
give the order to load with bail and will bring the men to the Ioading
position. This will prevent the party from being rushed. on while the crowd
is being warned.

(o) Officers commanding police parties will, on every occasion, when

employed in the suppression of a riot or enforcement of the law, ensure

57
 that the fullest warning is, if feasible given to the mob in a clear and
distinct manner before any order is given to use tear gas or lathis or fire-
arms, and Use the most effectual means to explain beforehand to the
people assembled that if they do not disperse within the specified period,
fire with live ammunition will be opened on them. Such warnings when
conveyed must be capable of being heard by the riotous mob. The nature
of the instrument to be used for conveying such warning would. therefore,
depend upon the noise created by the mob at the relevant time, as a
result of their shouting, hooting and yelling, its size, the distance at which
it is placed to the person conveying the warning and the various other
factors. If the size of the mob is small or even if it is a huge, silent and
concentrated crowd at one place, a megaphone might perhaps be
sufficient while on the contrary if the crowd is a huge crowd occupying a
vast area, the use of loud-speaker may be warranted.

(p) If, after being warned, the mob ;refuse to disperse, the order to fire may
be given. If the Officer in command of the party is of the opinion that it will
suffice if only one or two files fire, he will give orders accordingly,
specifying the files that are to fire. It, however, he considers that this will
be insufficient, he will give the word of command to one or more sections
to open fire. The fire of each section will be given by the regular word of
command of the officer in-charge of the party.

(q) Blank cartridges and buck-shot shall not be issued to the police employed
in suppressing a riot. When fire is to be opened, the responsible police
officer shall decide the minimum number of rounds to be fired to achieve
the desired effect in the circumstances and shall give precise orders
accordingly to the particular men or files who are to fire and number of
rounds to be fired and shall clearly specify the target. He shall further
ensure that his orders are not exceeded and that no firing contrary to or
without orders takes place. Whatever volume of fire is ordered, it shall be
applied with the maximum effect.

(r) Under no circumstances should a warning shot be fired in the air, nor
should the fire be directed over the heads of the crowd. Aim should be

58
 kept low and directed against the most threatening part of the crowd.
Firing should cease the instant that it is no longer necessary.

(s) Files or sections ordered to fire shall load immediately after firing without
further word of command until the order to cease firing is finally given.

(t) Firing should be ceased the moment the rioters show signs of dispersing,
and all help should immediately be rendered to tend and convey the
wounded to the hospitals.

(u) An armed force should never be brought so close to a large and

dangerous mob as to risk its either being overwhelmed by numbers or
being forced to inflict heavy casualties. Firing should be carried out from a
distance sufficient to obviate the risk of being rushed on and to enable
strict fire control to be maintained.

(v) A police officer below the rank of Station House Officer has no power to
disperse such an assembly himself, but he may arrest any person without
a warrant for being a member of an unlawful assembly.

(w) In any situation where the police are compelled to deal with unlawful
assemblies in different places of the same village or town, it would be
necessary to secure, as far as possible, the presence and permission of a
Magistrate before resorting to the use of firearms for dispersing any or all
of such assemblies.

(x) Riot flags should be taken when Armed Reserve are called out in
apprehension of disturbances and, before firing or any other means of
dispersal is resorted to, should be hoisted before the mob in a position in
which the inscriptions on them are clearly visible.

(y) The Police used for dispersing mobs should wear uniforms, including
boots, putties and steel helmets. The tear gas section and the armed
party protecting the tear gas section should wear anti-gas respirators. The
police force should be trained to exercise strict restraint and self-control
even under gravest provocation and must under no circumstances take

59
 action in a retaliatory or revengeful spirit. On occasions when fire arms
have been used against unlawful assembly it should be the duty of the
magistrate if one is present, and in his absence of the senior most Police
Officer, to make adequate arrangements for the care of the wounded
persons for their removal to hospital for medical aid. First aid should be
rendered by the Police. The dead should be removed to mortuary for post
mortem examination under proper escort.

(z) Superintendent should ensure that Sub-Divisional Officers, Inspectors

and S.H.Os.. see demonstrations of mob dispersal by the Armed Reserve
from time to time during their visits to the district headquarters. Such
demonstrations should invariably be given when meetings of Inspectors
are held."

Magisterial Inquiry In connection with opening of Fire:

4.10 Government letter No. HD 4 SAD 63, dated 25/3/1963 addressed to the
District Magistrate/ Additional District Magistrate deals with the inquiry to be conducted
by an Executive Magistrate in connection with the opening of Fire in defence of life and
property by the Police of suppress riots and other disturbances. The letter is reproduced
below for the guidance of the Executive Magistrates:

"Subject: Opening of Fire by Police to maintain law and order Holding of

Magisterial inquiry.

The Government of India, Ministry of Home Affairs have informed this State
Government that it is desirable that each incident of Police firing should be followed by a
Magisterial inquiry, Le.,' an inquiry by an Executive Magistrate, to ascertain that no
excesses are committed by the Police. I am to request that this procedure may be strictly
followed in future.

A copy of the magisterial inquiry report on each incident of Police firing

should be invariably sent to the Inspector General of Police, Mysore State, Bangalore,
who is required to supply this Government with information relating to Police firing in the
prescribed proforma for onward transmission to the Government of India.

60
 The Inspector General of Police has been requested to instruct the
Superintendents of Police to bring to your notice each incident of Police firing, to enable
you to arrange for holding a Magisterial inquiry."

4.11 When an Executive Magisterial inquiry ordered, the inquiry is ordinarily

directed to the ascertainment of:

(i) how the trouble started;.

(ii) details of the incidents and the circumstances under which fire was
opened with an account of the agitation preceding it;

(iii) the strength and the kind of the mob and the weapons with which
it was armed;

(iv) the strength of the Police on the spot;

(v) the extent of damage caused to public and private property;

(vi) the number of police officers and others injured by the unlawful
acts of the mob;

(vii) whether the firing was individual or volley firing;

(viii) whether due warnings were conveyed to the mob

(a) before lathi charge was ordered;

(b) before tear gas shells were burst;

(c) before fire was opened;

(d) the means by which warnings were conveyed-megaphones,

loud-speakers, etc.

(e) were the warnings conveyed heard by the mob;

(f) how did the mob respond to the warnings each time it was

61
 conveyed- whether they showed signs of dispersal or continued to
be defiant, jeering, hooting, and yelling.

(g) whether before fire was opened, were warnings conveyed

A. fire would be opened if the mob did not at once disperse;

B. that live ammunition would be used and
C. that firing would be effective.

(ix) Type of ammunition used;

(x) Number of rounds fired;
(xi) Whether the number of rounds fired, fired at one stretch or one after
another, after watching the reactions of the mob;

(xii) Was the firing ordered to be stopped the moment the mob showed

signs of dispersal;

(xiii) Whether the number of rounds fired and the bullet injuries reconcile;

(xiv) Who gave orders for fire- whether Magistrate or the senior most Police

Officer on the spot;

(xv) If the senior most Police Officer gave orders to open fire, was there time

to secure the Magistrate to the spot;

(xvi) Why in anticipation a Magistrate was not secured to the spot; Had goonda
elements mingled in the mob;

(xvii) Had any goondas been rounded up earlier; and

(xviii) Had goonda elements mingled in the mob;

(xix) Other inter-related matters.

4.12 For the ascertainment of the aforesaid facts and for adjudicating whether
firing was justified and if justified, whether or not it was excessive; it should be noted,
that the Executive Magistrate may examine:

I. Police Officers who were on the spot;

62
 II. Police Officer or Magistrate who gave orders for:
(a) lathi charge;
(b) bursting tear gas shells, and
(c) for opening of fire
III. Police Officers who actually opened fire;
IV. Doctors who have treated the injured (Police Officers and others);
V. Spectators, if any;
VI. Residents of the locality where fire was opened;
VII. Private persons whose property was damaged by the mob;

VIII. Officials of the Electricity Department, Municipality and other

institutions, the property of which was damaged; and
IX. Other relevant witnesses

4.13 In order to secure the attendance of all such witnesses the Magistrate may
give public notice fixing dates and timings of the inquiry, calling upon the public that if
anyone desires to appear before him and give evidence touching the incidents he may
do so.

4.14 When in response to such notices witnesses appear before him, the
Magistrate may administer oath to them in accordance with the provisions of the Oaths
Act and in the forms prescribed by the High Court of Karnataka under the Act and record
their evidence.

4.15. It should be noted that the Magistrate may put such questions as he
may consider necessary for

(i) obtaining any 'clarification on any matters referred to by witnesses; and

(ii) testing the truth of their evidence and their credibility.

It should also be noted that the Magistrate ordered to conduct a Magisterial

inquiry may go round and inspect the places of the incidents and prepare a record of his
observations with regard to the damages caused to the public and private property and
all other relevant matters.

4.16 The Magisterial inquiry with regard to the incidents leading to the opening of

63
fire by the Police, ordered by the District Magistrate is not authorised by any provision of
the Code of Criminal procedure but it is only a fact finding inquiry, the inquiry being
mainly confined to the ascertainment of

(i) Whether the opening of fire by the Police was necessary and justified; and

(ii) Whether the firing. was excessive or only the minimum force was employed.

The Executive Magisterial inquiry is not directed to giving findings whether

the accused committed offences for which charge sheets are presented or being
presented to jurisdictional court.

000

64
 CHAPTER -V

PUBLIC NUISANCES (SECTION 133)

5.1 Section 133 of Criminal Procedure Code enables a District Magistrate/ Sub-
divisional Magistrate or any other Executive Magistrate specifically empowered by the
State Government to deal with public nuisances. This power can be exercised either on
receipt of a police report or other information. Public nuisances which can be redressed
under this section fall under the following six categories:

Categories of Public Nuisance:

a) The unlawful obstruction or nuisance to any public place or to any way, river or
channel which is or may be lawfully used by the public;

b) The conduct of any trade or occupation, or keeping of any goods or

merchandise, injurious to the health or physical comfort of the
community;

c) The construction of any building, or disposal of any substance, as is likely to

occasion conflagration or explosion;

d) Any building, tent, structure or tree which is likely to fall and thereby cause injury
to persons;

e) Any tank, well or excavation adjacent to any such way or public place; and

f) Any dangerous animal which requires to be destroyed, confined or otherwise

disposed of.

5.2 A Magistrate may make a conditional order requiring the person causing
such obstruction or nuisance, or carrying on such trade or occupation, or keeping any
such goods or merchandise, or owning or possessing or controlling such building, tent,
structure, substance, tank, well or excavation owning or possessing such animal or tree,
within a time to be fixed in order to remove such obstruction or nuisance, etc., or if he

65
objects to do so, to appear before him or some other Executive Magistrate subordinate
to him at a time and place to be fixed by the order and show cause in the manner
provided why the order should not be made absolute.

Order should deal with removal of nuisance and not other things

A conditional order was passed requiring the appellant (baker) to demolish the oven and
chimney within 10 days. While confirming the conditional order, the Magistrate, however,
directed the appellant to cease carrying on the trade of a baker at the particular site and
not to lit the oven again. The proper order to pass would be to require the appellant to
demolish the oven and the chimney.
(Gobind Singh v. Shanti Sarup - AIR 1979 SC 143)

5.3 Sub-sec. (2) of. Sec. 133 provides that no order duly made by a Magistrate
under Sub-Sec. (1) of Sec. 133 can be called in question in any civil court.

The explanation given below the Section states that a 'public place' includes also
property belonging to the State, camping grounds and grounds left unoccupied for
sanitary or recreation purposes.

5.4 The remedies open for removal of public nuisances are:

(i) Filing of the suit under Sec. 91 C. P.C.

(ii) by prosecution for an offence under Chapter XIV of I.P.C; or
(iii) By initiating proceedings under Sec. 133 to 144 of Cr. P.C

Scope:

5.5 The provision of this Section should be sparingly used. The Magistrate must
be satisfied that speedy immediate prevention or remedy is necessary. A private person
has no right to insist that a Magistrate shall pass orders under Sec. 133. The
proceedings under Sec. 133 are not intended to settle private disputes between different
members of the public. . They are in fact intended to protect the public as a whole
against inconvenience. This section has no application to something which may become
a nuisance, that is, a potential nuisance, but applies only where the nuisance is in
existence in a way, river or channel which is or may be lawfully used by the public and
which is in existence in a public place.

66
5.6 The proceedings under Chapter 10 of Criminal Procedure Code are
summary in nature and are intended to enable the Magistrate to take immediate steps in
case of urgency or imminent danger to public interest. The danger intended to be
averted by the initiation of proceedings under this section should be' such that if no
action is taken and if the public is compelled to have recourse to ordinary law irreparable
damage would ensure. Section 133 enumerates certain specific invasion of public rights
which would be regarded as public nuisances. The section is an emergent one and
provides for summary remedy to deal with the public nuisances which are capable of
being removed. Proceedings under this Section are not originated by a complaint. Any
person. can give information to the Magistrate even though he is not a party to the
proceedings. When the Magistrate acts on the information he is acting 'suo-motto'. The
order issued by the Magistrate is a conditional order in conformity with Sec. 133 and not
a notice to show cause why action should not be taken, nor does it amount to an
injunction. This section' does not apply to private nuisances. The section applies only
when unlawful obstruction or nuisance is actually in existence and not to potential
nuisance.

Meaning of certain terms:

5.7 Before proceeding to pass an order under this section, the Magistrate shall
have enough material before him and there shall have to be a 'prima facie case'. He
shall consider whether the circumstances are such that a conditional order should be
passed. The words 'taking such evidence' do not necessarily make it incumbent on the
Magistrate to hold an inquiry before he makes an order under this Section. Whether
there is "unlawful obstruction" or not is a question of fact. The words "unlawful
obstructions" or "nuisance" appearing in Clause (a) have not been defined. The
definition of "public nuisance" given. in Sec. 268 of the I.P.C. will be applicable for the
purpose of this Section by virtue of Section 2 (y) of the Code. The word "channel" which
has not been defined in the Criminal Procedure Code has been interpreted in many
decisions to include a catchment area in the centre of which there is a water course. It
covers such flow of water as could be used for productive uses such as navigation or
irrigation. It is necessary for invoking the provisions of Clause (a) of Sub-sec. (1) of Sec.
133 that the way, river or channel from which obstruction is sought to be removed is one
which is or may be lawfully used by the public. It is not necessary that the way should be

67
one which is generally used by the public. The words "public place" have not been
defined in the Criminal Procedure Code but there is a definition in the I.P.C. That is a
'place' becomes public if the public have access to it. It depends upon the character of
the place itself and the nature of actual use made of it at a given time. For example, a
well belonging to a private individual which the public has been allowed to use for
drinking purpose. Railway platform is a public place at the time when the passenger train
arrives. The words "conduct of trade or occupation injurious to the health or the physical
comfort of the. community" appearing in Clause (b) of Sub-sec. (1) of Sec. 133 indicate
that the conduct or trade or occupation need not necessarily exist in a public place. What
is required is that such trade or occupation is injurious to the health or physical comfort
of the community.

Conditional Order:

5.8 The form of the conditional order is given in Form 20 of Second Schedule to
Criminal Procedure Code. The conditional order has to be in writing and should specify
the time within which the person directed should remove obstruction, etc., or if he
objects to do so appear and show cause. [Form No.20 is given in Appendix 2 (a)].

The Order:

5.9 The Order should not be vague or ambiguous. It should not be a general order.
It shall have to be directed to a particular individual or individuals. The order should be
such that the person reading the same should learn from its terms as to what he is
expected to do for complying with the order. If the order is to the effect that a portion of a
structure has to be demolished it should be specifically stated as to how much of the
structure should be removed. Clear indication or location of the portion of the structure to
be removed should, be mentioned. In case the order is against several persons, it
should be stated that what act is expected to be done by such of them unless it is stated
that all persons are jointly responsible for the obstruction and they are called upon to
remove the same jointly. The time specified in the order runs from the date of passing of
the order and not from the date of service and hence care should be taken to see that
reasonable time is given to the person against whom the order is made enabling him to
comply with the direction given.

68
Injury to health or considerable Physical discomfort of the public

It must be shown that public discomfort was considerable and large section of
public was affected injuriously – Magistrate is to conduct enquiry and decide whether
there was reliable evidence – Allegations that storage of red chillies in godown in
residential locality and loading, unloading thereof was causing physical discomfort and
injury to health of people in locality – SDM upon considering evidence of residents in
locality came to conclusion that people in general in locality suffered discomfort and
injury to physical health – It amounted to public nuisance. (Paras 8,10,11,12,15)

Comparison between Section 133 and Section 144

A comparison between the provisions of Ss.133 and 144 of the Code shows that
while the former is more specific the latter is more general. Therefore, nuisance special
provided in the former section is taken out of the general provisions of the latter section.
The proceedings under S.133 are more in the nature of civil proceedings than of criminal
nature. Sometimes there is confusion between S.133 and S.144 of the Code. While the
latter is a more general provision the former is more specific. While the order under the
former is conditional, the order under the latter is absolute. (Paras 10,13)
(Kachrulal Bhagirath Agrawal v. State of Maharashtra AIR 2004 SC 4818)

Imminent Danger to property

Criminal P.C. S.133 – Public nuisance – Applicability of S.133 – There must be

imminent danger – S.133 how different than S.144.
To bring in application of S.133 of the Code, there must be imminent danger to
the property and consequential nuisance to the public. The nuisance is the concomitant
act resulting n danger to the life or property due to likely collapse etc.
The object and purpose behind S.133 of the Code is essentially to prevent public
nuisance and involves a sense of urgency in the sense that if the Magistrate fails to take
recourse immediately irreparable damage would be done to the public.
It applies to a condition of the nuisance at the time when the order is passed and
it is not intended to apply to future likelihood or what may happen at some later point of
time. It does not deal with all potential nuisance and on the other hand applies when the
nuisance is in existence.

69
 It has to be noted that some times, there is a confusion between S.133 and
S.144 of the Code. While the latter is more general provision the former is more
specific. While the order under the former is conditional, the order under the latter is
absolute. The proceedings are more in the nature of civil proceedings than criminal
proceedings. (Para 8)
(State of M.P. v. Kedia Leather and Liquor Ltd - AIR 2003 SC 3236)

Final Order

5.10 After passing a conditional order, the Magistrate in his discretion, may direct
the person against whom order is passed and who objects to comply with the order to
appear before him or before some other Magistrate subordinate to him at a time and
place to be fixed by the order and show cause in the manner provided as to why the
order should not be made absolute. A combined reading of Sec. 133 (1) & 138 (2) shows
that depending upon the facts and circumstances of each case, the Magistrate may
modify a conditional order at a subsequent stage also. The death of a party to an order
makes the proceedings abate. If any action is contemplated against successors interest,
separate proceedings will have to be drawn up. The provisions contained in Sec. 326 of
the Code are applicable and the proceedings commenced by one Magistrate could be
continued by his successors in office. It is open to the District Magistrate/ Sub-divisional
Magistrate to transfer a proceeding. started under Sec. 133 to any other Executive
Magistrate by exercising their powers under Sec. 411.

Municipalities – Public Nuisance - Duty to abate

Financial Inability of Statutory body is not an excuse for non

implementation of Order u/s 133 CrPC.

The Cr.P.C. operates against statutory bodies and others regardless of the cash
in their coffers, even as human rights under Part III of the Constitution have to be
respected by the State regardless of budgetary provision. Section 133, Cr.P.C., is
categoric, although reads discretionary. Judicial discretion when facts for its exercise are
present, has a mandatory import. The Magistrate‟s responsibility under Section 133 is to
order removal of such nuisance within a time to be fixed in the order. This is a public
duty implicit in the public power to be exercised on behalf of the public and pursuant to a

70
public proceeding. Failure to comply with the direction will be punish able under Section
188, I.P.C. If the Municipal Commissioner or other executive authority bound by the
order under Section 133, Cr.P.C., disobeys the same, it becomes punishable. The
imperative tone of Section 133, Cr.P.C., read with the punitive temper of Section 188,
I.P.C., makes the prohibitory act a mandatory duty.
(Ratlam Municipality v. Vardhichand AIR 1980 SC 1622 ; 1980 CrLJ 1075
= (1980)(4)SCC 162)

A self contained special Overrides Section 133

Criminal procedure Code 1973, Section 133- Public nuisance – Magistrate‟s power to
issue order for removal of – Whether that power, in cases of water pollution, has been
superseded by statutory power of Board constituted under water (Prevention and Control
of Pollution) Act, 1974? – Held, Yes.

Held: The Act water (Prevention and Control of Pollution) Act, 1974 is a self-contained
special enactment legislated with the avowed object of preventing and controlling water
pollution and maintaining or restoring the wholesomeness of water and the Board as the
statutory body is created and established by it to achieve this specific purpose. The Act
provides effective machinery for the Board for successful implementation of its came to
achieve its object. The remedies of appeal and revision against the order of the Board
are also provided by the Act to the aggrieved person. In that view of the object and
structural pattern of the Act investing the Board with the full power and providing the
necessary machinery to achieve the aforementioned object, the general power of the
Executive Magistrate under Section 133 of Cr.P.C. to take action in regard to any case
of water pollution must, by necessary implication, give way and yield to the superseding
statutory power of the Board to deal with and tackle the same. (Para 8). (M/s.
Executive apparel Processors, Bangalore Vs The Taluka Executive Magistrate and
Tahsildar, Bangalore North Taluka Bangalore and Another - 1997(4) Kar. L.J.182 )

71
(A) Criminal Procedure Code 1973, Section 133 – Water (Prevention and Control of
Pollution) Act, 1974, Sections 49 and 60 – Air (Prevention and Control of Pollution) Act,
1974, Sections 49 and 60 – Air (Prevention and Control of Pollution) Act, 1981, Sections
43 and 523 – Public nuisance Magistrate‟s jurisdiction to take cognizance of offence
Pollution of water and air by inductee holding letter of consent issued by State Board to
operate industrial plant in specified area – Magistrates power to pass appropriate order
to remove public nuisance, not taken away by acts of 1974 and 1981 Though scope and
purpose of Acts and Section 133 of Code may overlap, that of Acts is preventive,
whereas under Code it is remedial in nature – Acts deal with water and air pollution,
whereas Section 133 of code is general and provides easy remedy to remove existing or
emergent nuisance – Prior sanction of Board, not necessary for action under Section
133 of code – Proceedings under Section 133 of Code, Summary in nature Basis of
order under Section 133 of code is satisfaction of Magistrates that immediate remedy is
necessary. (Harihar Polygivress, Ranebennur Taluk, Dharwad District and Another
Vs The Sub-Divisional Magistrate, Haveri, Dharwad District and others 1997(5) Kar.
L.J. 385)

Service of Order under Section 133:

5.11 Sec. 134 provides that an order made under Sec. 133 shall be served on the
person against whom it is made as far as practicable in the manner provided for service
of summons. If an order cannot be so served as a summons, it shall be notified by
proclamation, published in such manner as the State Government may by rule direct and
a copy thereof shall be stuck up at such place or places as may be fittest for conveying
information to such a person.

Person to whom order is addressed to obey or show cause:

5.12 Section 135 enables a party against whom the order under Sec. 133
is made to do any of the following things:

(1) Obey the order within the time and in the manner specified in the order; or
(2) If he feels aggrieved to appear and show cause against the order.

If he fails to do any of these things within the time fixed, he shall be liable for

72
the penalty provided under Sec. 188 I.P .C, and the Magistrate shall make the order
absolute 'exparte' which can beset aside on general principles where sufficient cause is
shown for the absence of the party.

5.13 Sub-Sec. (1) of Section 137 provides that soon after the person against.

whom a conditional order is made appears before the Magistrate, he shall be.

questioned as to whether he denies the existence Of any public right in respect of the
way, river, channel or place, and if he does so, the Magistrate shall, before proceeding
under Sec. 138, inquire into the matter. Sub-sec. (2) of Sec. 137 provides that if after
inquiry the Magistrate finds that there is any reliable evidence in support of such denial,
he shall stay the proceedings until the matter of the existence of such right has been
decided by a Competent Court and if the Magistrate finds that there is no such reliable
evidence, then he shall proceed as laid down in Sec. 138. If the objector who on being
questioned by the Magistrate under Sub-sec. (1) of Sec. 137 fails to deny the existence
of the public right of the nature referred to or who, having made such denial has failed to
adduce reliable evidence in support thereof, he shall not in the subsequent proceedings
be permitted to make any such denial [Sec. 137 (3)].

5.14 Sec. 137 (1) provides for a preliminary inquiry which shall have to be on the
limited question whether the person who has appeared in response to a show cause
notice denies a public right and whether he has "prima facie" evidence with him to
support his denial. The provisions contained in Sec. 138 cannot be invoked unless and
until a preliminary inquiry is held as provided in Sec. 137. The object of staying the
proceedings provided in Sec. 137 (2) is obvious in that the Magistrate should not
unnecessarily take upon himself the role of a Civil Court and embark upon deciding the
civil rights of the parties. The only liability of a person failing to adduce reliable evidence
in support of his denial of the public right would be that he would be disentitled from
denying the said public right in the subsequent proceedings. Such failure to adduce
reliable evidence will not justify an order from the Magistrate that the conditional order is
made absolute. Thus even if the person against whom a conditional order has been
passed fails .to produce before the Court, reliable evidence in support of his denial of the
public right, the Magistrate shall have to proceed under Sec. 138 of the Code. On being
questioned by the Magistrate, if the person against whom a notice to show cause has
been issued does not dispute the public right but denies only the alleged obstruction, the
Magistrate then shall have to proceed under Sec. 138. In such a case the omission to

73
question as provided under Sec. 137 (1) would not be fatal.

5.15 The term 'public right' found in Sec. 137 (1) has not been defined. A public
right does not depend upon the number of individuals enjoying the same. It must be
enjoyed by members of the public in general as a right. The inquiry contemplated under
Sec. 137 is regarding the public right, its denial by the objector and regarding the
character of the evidence produced by the objector in support of his denial. The inquiry
under Sec. 138 is entirely different and care should be taken not to mix up the two. The
nature of the inquiry under Sec. 138 would be to examine and determine whether the
conditional order passed under Sec. 133 is reasonable and proper or not. It is obligatory
upon the Magistrate under Sec. 137 to see whether there is reliable evidence in support
of the denial of public right and the Magistrate need not go into the question whether in
fact there is such public right or not. In an inquiry under Sec. 137 the burden obviously
lies on the objector to show that he has reliable evidence in support of his denial of
public right. In order to satisfy himself that there is legal evidence, the magistrate may
allow the cross-examination of witnesses produced by the objector in support of his
denial. The inquiry is of a summary character. Under Section 137 it is not necessary that
the party complaining of obstruction should also be required to adduce evidence. To
counteract the evidence produced by the objector in support of his denial, the person
complaining of nuisance may be allowed to adduce evidence.

5.16 Provisions contained in Sec. 137 are mandatory and cannot be waived. If
the Magistrate proceeds under Sec. 138 without following the procedure laid down in
Sec. 137, the entire proceedings would be vitiated. The Magistrate recording a finding
that the objector has not placed reliable evidence in support of his denial shall have to
assign reason for his finding. Inquiry under Sec. 137 shall have to be held before the
Magistrate before whom the party appears in pursuance of an order under Sec. 133, the
reason being that further proceedings under Sec. 138 depend upon the finding of the
Magistrate whether the objector has adduced reliable evidence in support of his denial of
public right. The Magistrate in the inquiry under Sec. 137 has to consider only whether
the denial of public right has been supported by "prima facie" evidence. The Magistrate
should not consider whether the claim has been established to his satisfaction. It would
not be erroneous if the Magistrate only takes the evidence in support of the denial and
examines whether, as it stands, he could come to the conclusion that the evidence is
reliable. A good test of reliability is whether the evidence is such that if unrebutted it will

74
prove the non-existence of the public right. Public records such as Record of Rights,
R.T.C., extracts of Settlement Registers and Survey Maps; etc., may form reliable
evidence in support of the denial of the existence of public right.

5.17 Under Sub-sec. (2) of Sec. 137 if the Magistrate arrives at a finding that there is
reliable evidence in support of the denial of a public right he has no other opinion than to
stay the proceedings. The proceedings need not be stayed indefinitely. The Magistrate
can fix some time for establishing the right concerned in a competent court and if the
party concerned does not produce a finding of the competent court within the reasonable
time specified, the Magistrate can proceed to make the order absolute. If the
proceedings are stayed under Subsec. (2) of Sec. 137, the Magistrate has no jurisdiction
to initiate fresh proceedings under Sec. 133. If the Magistrate on the other hand finds
that the objector has not produced any reliable evidence in support of his denial, of the
existence of a Public right, he shall have to record his reasons for such a decision and
proceed to decide the case as laid down in Sec. 138 of the Code. If a party files any suit,
after the Magistrate records the finding that no reliable evidence has been induced in
support of the denial of the existence of a public right, the Magistrate need not stay the
proceedings, and he shall proceed under Sec. 138.

Procedure where he appears to show cause:

5.18 Sec. 138 (1) provides that the Magistrate shall proceed to take evidence in
the manner, as in a summons case, after the person against whom the order under See,
133 (1) has been made, appears and after the provisions of Sec. 137 are complied with.
The question regarding the existence of a public right which was the subject matter of
inquiry under Sec. 137 will not be allowed to be reagitated in the inquiry under Section
138. The reason for limiting the scope of the inquiry under Sec. 138 is obvious, because
the inquiry under Sec. 138 comes into the picture only when the existence of the public
right is either not denied or if denied no reliable evidence has been found to exist in
support of such denial. The word "Magistrate" appearing in Sec. 138 includes both the
Magistrate who made the conditional order under Sec. 133 and the Magistrate before
whom the party, is required to appear as shown in the conditional order. A Magistrate
who may not be competent to make a conditional order under Sec. 133 can pass a final
order under this Section if the case is transferred to him by the Magistrate making the
conditional order as his subordinate. Magistrate.

75
5.19 The words "shall take evidence in the matter" appearing in Sub-sec. (1) of
Sec. 138 indicate that the Magistrate is bound to hold inquiry by recording evidence and
following other provisions of this chapter before making the order absolute. The
Magistrate shall have to record a judicial decision on the evidence recorded.

Power of Magistrate to direct local investigation and examination of

an expert:

5.20 Sec. 139 empowers the Magistrate, for the purpose of inquiry under Sec.
137 and 138, to direct a local investigation to be made by such, person as he thinks fit
and also to summon and examine an expert.

5.21 Sec. 140 further empowers the Magistrate to furnish written instructions to
the person directed to make a local investigation. The report of local investigation may
be read as evidence in the case [Section 140 (2)]. Under Sub-sec. (3) of Sec. 140 the
Magistrate may direct by whom the costs of summoning and examining experts shall be
paid. The evidence admissible under Sec. 139 and 140 shall have to. be considered by
the Magistrate holding an inquiry under Sec. 138 of the Code. Even if the party against
whom a conditional order is made does not produce evidence, it is still incumbent on the
Magistrate to record evidence of the person' who complained and of others and then to
pass .final order. A conditional order cannot be made absolute merely on account of the
following:-

I. as a result of his local inspection.,

II. personal opinion

III. the report of the Tahsildar or Panchayatdars,

IV. arbitration,

V. the evidence or information or report received at the time the conditional order
was passed under Sec,. 133 or on the basis of the evidence taken under the
inquiry under Sec. 137.

5.22 The procedure to be followed in a summons case is found in Chapter XX 'of

the Code. It lays down that first the complainant (if any) and all his witnesses (if any)

76
should be examined and thereafter the objector shall beheard and his witnesses shall be
examined. Any inquiry shall have to be held in the presence of both the parties. The
burden of proof in such inquiry lies on the prosecution, i.e., the person at whose instance
the conditional order is passed. The provision contained in Sec. 254 (2) of the Code
regarding the issue of summons to the proposed witnesses applies to the proceedings
under Sec.138 also.

Final Order

5.23 On completion of the inquiry under Sec. 138 (1); if the Magistrate is satisfied
that the conditional order either as originally made or subject to such modification as he
considers necessary, is reasonable and proper, the Magistrate shall have to pass an
order making the order absolute. The wording of Subsec. (2) of Sec. 138 shows that a
conditional order can be made absolute only on the basis of evidence recorded by the
Magistrate. Hence, where the party appears to show cause against the preliminary order
and thereupon inquiry starts under this section, the Magistrate cannot, even if the,party
fails to appear at a subsequent hearing, make the order absolute without any evidence.
The procedure laid down for summons-cases under Sec. 241 to 249 of the Code
requires that evidence must be taken on behalf of the complainant when the other side
denies the allegation. An exparte order at subsequent stage is therefore not permissible.
The Magistrate has however the power to modify the conditional order on the basis of
the inquiry made by him and make such modified order absolute [Sec. 138 (2)]. Where a
person against whom a conditional order is passed under Sec. 133 appears and submits
that he has no objection to the removal of the obstruction, it would not be sufficient to
record his willingness and close the matter but a substantive order directing him to
remove the obstruction within a specified time shall have to be passed. If the nuisance
has ceased to exist subsequent to the conditional order passed under Sec. 133, there
would be no need to make the order absolute. Upon recording evidence and receiving
such other material on record as provided under Sections 139 and 140 of the Code if the
Magistrate is satisfied that the preliminary order was unreasonable and improper, he
shall have to drop the proceedings.

77
Procedure on order being made absolute and consequences of
disobedience:
5.24 Sec. 141 provides that after an order is made absolute either under Sec. 136
or under Sec. 138, the Magistrate shall give notice of the same to the person against
whom the order was made and shall further require him to perform the act directed by
the order within the time specified in the notice and Inform him that in case of
disobedience he wilt be liable to the penalty provided under Sec. 188 of I.P .C. Form of
notice shall be as provided in Form No. 21 of Second Schedule [vide appendix 2 (a)].

5.25 Under Section 141 (1) only the Magistrate, who passed the order making the
conditional order absolute under Sec. 138 shall have to issue the notice. If the person
against whom a notice has been issued under Sub-sec. (1) of Sec. 141 fails to comply
with the same, the Magistrate may cause the act to be performed and recover the cost of
performing the same either by the sale of any building, goods or other property removed
by his order, or by the distress and sale of any other movable property of the person to
whom notice has been issued.

5.26 Sec. 141 (3) provides protection for acts done in good faith under this
Section. All the Magistrates acting under this chapter are courts under Sec. 6 of the
Code and even otherwise they are not liable to be sued In a Civil Court by virtue of Sec.
1 of the Judicial Officers Protection Act (Act No.1 of 1850).

When Injunctions may be Issued:

5.27 Under Sec. 142 of the Code, if the Magistrate passing an order under Sec. 133
considers that immediate measures should be taken to the public, he may issue an
injunction to the persons against whom the order was made, to obviate or prevent such
danger or injury pending the determination of the matter. The injunction under this
section shall have to be restricted to the checking of the particular nuisance which has

been prohibited by the conditional order made under Sec. 133. The Magistrate has no
jurisdiction to go beyond the scope of such conditional order.

78
Order to prevent repetition or continuance of Public Nuisance:

5.28 The repetition or continuance of public nuisance can be prevented by an

order passed by the District Magistrate or Sub-divisional Magistrate or any other
Executive Magistrate empowered by the State Government or the District Magistrate In
this behalf under Sec. 134. The order shall have to be in Form No. 23 of Second
Schedule to the Code and should be passed only after giving an opportunity to the
person against whom the order is made to show cause as to why the order should not
be passed [Appendix 2 (a)]. .

5.29 For any disobedience of the order made against a person under Sec. 143,
the person will be liable for punishment under Sec. 291 of I.P.C. Since the order under
Sec. 133 or 136 or 138 binds only a particular person or persons against whom it is
made, no order can be passed under Sec. 143 against a person who Is not a party to the
said proceedings.

000

79
 CHAPTER – VI

URGENT CASES OF NUISANCE OR

APPREHENDED DANGER
(Sec. 144 of Criminal Procedure Code)

6.1 Sec. 144 of the Criminal Procedure Code confers very wide powers on the
District Magistrate, Sub-divisional Magistrate or any other Executive Magistrate specially
empowered by the State Government in this behalf to pass order on occasions of
emergency. The provisions contained in Sec. 144 can be invoked only in urgent cases of
nuisance or apprehended danger. Two conditions are necessary to be fulfilled before an
order can be passed under this Section, viz,

(1) The Magistrate must be satisfied that immediate prevention or speedy

remedy is necessary. Urgency of the action to be taken gives jurisdiction to the
Magistrate to exercise the powers conferred by this Section. A mere statement
that he considers. the case to be an urgent one is not sufficient. He shall have
to mention the grounds which made him conclude that there is urgent necessity
for action.

(2) The Magistrate must be satisfied that the direction to abstain from certain
act or to take certain order with respect to certain property is likely to prevent or
tends to prevent obstruction as shown in the Section. It is not necessary that the
provision should be invoked only when the alleged acts would constitute an
offence if allowed to be completed. It is sufficient even if the acts alleged are
such, when completed, would furnish grounds for a civil action only.

Scope

6.2 An order under this section is in the interest of maintenance of "public order", the
objects for securing it is being "to prevent obstruction", " annoyance", "injury", etc. The
power conferred by this section is not arbitrary, nor is it unlimited; it is reasonable. The

80
section is attracted only in an emergency. The power can be exercised for the purpose
of preventing obstruction, annoyance or injury to the persons lawfully employed or
danger to human life, health or safety or disturbance of the public tranquillity, or a riot or
"an affray". These factors condition the exercise of the power and it would consequently
be wrong to regard; that power, as, being unlimited or untrammeled. It is only where
emergency of the gravest character is made out then a Magistrate would be justified in
the exercise of his powers under this section to make an order which would J1ave the
effect of interfering with the exercise of private rights of individuals. Where there is a
conflict between public right and private right, the former must prevail. And so, although,
the persons may have obtained from a competent civil court a declaration of the right to
conduct processions with music before a particular mosque, the Magistrate may, in the
interest of public peace, prohibit the former from taking any procession in any street
where there are such mosques. It is not permissible for a Magistrate, under the cover of
an order under this section, to dispossess a particular individual of certain property to
deliver possession of it to another. This section is intended to provide for an emergency,
and it is idle to contend that in an emergency when a riot is apprehended and when
there is apprehension of a serious disturbance of public tranquillity, the Magistrate is
required to deliberate upon and decide the rights of the parties before acting. In the
proceeding under section 144 the Magistrate has no jurisdiction to attach property.

6.3 The power conferred by this Section cannot be exercised to interfere with the
execution of Civil Court's decree. Delivery possession of certain property cannot be
directed under cover of an order passed under this Section. If any civil court is seized of
the matter and if there is no apprehension of imminent breach of peace, the provisions of
this Section cannot be invoked. Orders under this section are passed only in the general
interest of the ,society and not in the interests of any particular individual. The main
objective to exercise the power must be to prevent breach of public tranquillity. In case
of conflict between the. public interest and private interest, the public interest shall have
to prevail and the Magistrate can override temporarily the private rights by passing an
order under this Section. However, care must be taken to see that this Section is not
invoked by one party in order to obtain material advantage over the other. The
Magistrate should endeavour as far as possible to uphold the rights declared by Civil
Courts and to resort to this section only when there is no time or opportunity for any
other recourse. The authority of the Magistrate to override temporarily, private rights in
cases of emergency lasts. As soon as it appears to the Magistrate that there is no more

81
apprehension of imminent danger to the public peace the order shall to be rescinded.
The objective should be to secure to every person the enjoyment of his legal rights and
by means of proper directions it should deter those who seek to invade the rights of
others. When a breach of peace is anticipated, as a general rule, action shall have to be
taken against the potential law-breakers and not against the peaceful citizens, who are
the victims of the law breakers,

Order to be in writing- must state material facts:

6.4 The words "Written order stating the material facts" appearing in Sec. 144(i)
indicate that the order should not only be in writing but should state the material facts of
the case. Before proceeding under this Section, the Magistrate must satisfy himself that
there is sufficient ground for doing so. There ought to be reasonable and reliable
evidence or information before the Magistrate that the act prohibited is likely to cause "a
riot, or affray or danger to human life. The information received by the Magistrate may be
oral or in writing or il1 the form of the police Report. A Magistrate cannot however base
his order merely on his local inspection or solely on a report of an interested person.

Contents of the Order:

6.5 The order must be an order which is absolute and definite in terms. The
order must contain a statement of the “material facts", which the Magistrate considers
to be facts of the case and upon the footing of which he bases his order. The thing which
is prohibited must be clearly stated. The duration of the order must be co-extensive with-
the emergency. Except where the order is addressed to the public under sub-sec (3), the
persons against whom the order is directed must be specified. The terms of the notice
must follow the terms of the order in pursuance of which the notice is issued.

Service of Order:

6.6 The order must be served in the manner provided by Section 134, i.e.,
served personally. If it is not served personally and not brought to the notice of the
accused a conviction under Section 188, I.P.C. for disobedience of the order is illegal.
An order must state who are prohibited and what are they prohibited from doing or
requiring to do.

82
When 'exparte’ order can be passed:

6.7 Sub-sec. (2) of Sec. 144 provides that an exparte order can be passed in
cases of emergency or when there is no time to serve the notice. Ordinarily an order
under this Section should not be made without an opportunity being afforded to the
person against whom it is directed. In other words Sub-sec. (2) of Sec. 144 provides only
an exception to the rule that an order should be passed after due notice to show cause
as to why it should not be made. The order passed under this Section shall have to be
served in the manner shown in Sec. 134 of the Code Le., as per the procedure provided
for service of summons. If the order cannot be served in the said manner, it has to be
notified by a proclamation (published in such a manner as the State Government may by
rule direct) and by affixing a copy of the order at the places suitable for conveying the
information to the person concerned.

6.8 The order should be clear and it should show the authority under which the
Magistrate has taken action. It shall have to be definite and unambiguous. Form No. 24
of the Second Schedule of the Code shall have to be used for an order under this
Section.

6.9 The Section envisages two kinds of orders, viz.,

(i) order directing a person to abstain from a certain act;

(ii) order directing a' person to take certain order with respect to certain
property in his possession or management.

6.10 The Section provides for an absolute and definite order and not a conditional
order to be made absolute later on. An order under Sec. 144 shall have to be a
temporary character. It should not be irrecoverable or perpetual in nature. It is one of the
conditions of the order that it should be addressed to a definite person or persons. It
must be addressed to a party to the proceedings and not to a third person. The act
prohibited should be clear and a definite physical act. The provisions contained in this
section authorise a Magistrate to pass restrictive orders and not to make a mandatory or
positive order directing a person to do a particular act, except in so far as such order
may be covered by the words, "or to take certain order with respect to certain property in
his possession or under his management". An act can be prohibited only if it is intended

83
to prevent obstruction, annoyance, etc. The word " annoyance" has been held to include
mental as well as physical annoyance. The Magistrate himself shall have to exercise the
discretion given to him under this section and he cannot delegate it to another. The
words" to take certain order with respect to certain property" appearing in Sub-sec(1) of
Sec. 144 indicate that the Magistrate can require the person to take certain order with
respect to certain property. The word "property" refers to immovable property only. The
property, in respect of which the order is made, should be in the possession or
management of the person against whom the order is passed. The section does not
authorise the attachment of movable properties. An order passed under this section
does not have the effect of disturbing either title or possession. It may prevent the
exercise of rights which a person in possession would otherwise be entitled to exercise.
An order under this section does not bind a person who was not a party to the
proceedings.

6.11 An 'exparte' order under Sub-sec. (2) of Sec. 144 can be passed, upon receipt of
a police report if the Magistrate is satisfied that immediate action is necessary. In such
cases, however, the Magistrate shall have to record his reasons for considering the
occasion as one of emergency. He must also state the materials on which he considers
immediate action is necessary. It is open to a person aggrieved by an exparte order to
apply under Sub-sec. (5) of Sec. 144 to rescind or alter the order. In a case where the
legality or propriety of an exparte order has been challenged, it is not proper to postpone
the hearing until the termination of the order. Where a party offers to adduce evidence
against the continuance of an exparte order, the Magistrate shall have to hold an inquiry
and pass necessary orders thereafter.

Orders to whom directed:

6.12 Sub-Sec. (3) provides that an order under this Section may be directed to a
particular individual or to person residing in a particular place or area or to the public
generally who frequently visit a particular place or area. This Section empowers the
Magistrate to interfere materially with the liberty of the citizens and therefore it would be
necessary that he should promulgate his order in terms sufficiently clear to enable the
public or persons affected by it, to know exactly as to what it is and what they are
prohibited from doing.

84
Order to be In force for two months

6.13 Sub-sec. (4) provides that an order under this Section can remain in force
only for two months from the date of such order. The order shall have to be in its nature
revocable and must be such that it can be recalled at the expiry of the two months. The
Magistrate is not empowered to pass an order, the effect of which would be granting..of
a perpetual injunction. He is also not authorised to pass successive orders at the end of
every two months.

Powers of State Government to extend the period:

6.14 In a case where it is found expedient that the order should extend to a period
beyond two months the power shall have to be exercised by the State Government
under the proviso to Sub-sec. (4). Where the proceedings initiated under this section are
cancelled as defective, nothing prevents a Magistrate from Initiating valid proceedings.
The order remains in force for a period. of two months from the date of its confirmation
on any subsequent date. It is however, not necessary that an order under this Section
should state expressly that its operation is confined to two months or some shorter
period. Under the proviso to Subsec. (4) of Sec. 144 the State Government if it considers
necessary to do so, for preventing a risk or any affray, has the power to extend by
notification the term of the order for such further period not exceeding six months from
the date on which the Magistrate's order would have expired.

Power to rescind or alter order:

6.15 Under Sub-Sec. (5) of Sec. 144 the Magistrate has the power to rescind
or alter an order made under this section either on his own motion or on the application
of any aggrieved party. The word "alter" does not mean that the Magistrate can
substitute the names of one party for the other. The Sub-section contemplates only a
change in the nature of the order and not in the name of the party against whom it is
made. A recession or alteration of the order will be justified where the reasons for the
order no longer exist. An application under this Sub- section is not covered by Sec. 192
or Sec. 411 of the Code, which deal with the subject of transfer of cases. Thus the
Magistrate to whom the case is made over cannot transfer it for disposal to another
Magistrate.

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6.16 Under Sub- Sec. (6) the State Government has the power either on its own
motion or on an application by an aggrieved person to rescind or alter the order made by
it under the proviso to Sub- Sec. (4).

6.17 Sub- sec. (7) Provides that where an application under Sub-sec. (5) or Sub-
sec. (6) of Sec. 144 is received by the Magistrate or the State Government, they shall
have to give an early opportunity to any person or persons aggrieved by the order and
hold an inquiry into the circumstances of the case to see if the order requires to be
rescinded or altered. The Magistrate or the State Government shall have to consider in
such an inquiry whether the claims advanced by one or either of the parties are within
their legal and natural rights or whether any recession or alteration of the order is called
for to obviate undue hardship to one or either of the parties. The provisions of Sub-sec.
(7) are mandatory and an application filed under Sub-sec. (5) cannot be summarily
dismissed. The inquiry under this section being a judicial inquiry, the Magistrate is bound
to take evidence in the usual way by examination and cross-examination of the witness.
He is bound to consider the evidence and arguments submitted on behalf of the parties.
The person proceeded against is entitled to a copy of the information to enable him to
rebut the same. A Magistrate proceeding under this Section may make a local
inspection for the purpose of appreciating the material and evidence produced before
him, but he cannot base his decision merely on his local inspection. A person disobeying
an order passed under this Section is liable to be punished under Sec.188 of the I.P.C.
The prosecution in such a case shall have to be in the manner provided under See 195
or Sec. 340 of the Code.

000

86
 CHAPTER – VII

DISPUTES AS TO IMMOVABLE PROPERTY

Procedure where dispute concerning land or water Is likely to cause

breach of peace

7.1 Sec. 145 deals with disputes concerning land or water likely to cause breach
of peace. An Executive Magistrate may proceed under this Section if he is satisfied that:

(1) a dispute exists concerning any land or water or the boundaries thereof within
his local jurisdiction and

(2) Such dispute is likely to cause a breach of the peace. After satisfying
himself, the Magistrate must first pass a preliminary order under Sub-see (1)
of Sec. 145 and then hold an inquiry as provided under Sub-sec (4).

7.2 Any party to the dispute may in an inquiry show that there is no dispute at all
or that the dispute is not likely to cause a breach of peace. If the Magistrate is satisfied
on such points he shall have to cancel his preliminary order. otherwise the inquiry must
be held. If the Magistrate decides that one of the disputing parties was in possession of
the subject of dispute as on the date of preliminary order, he should pass a final order
declaring that such party is entitled to possession of the property until evicted in due
course of law, and forbidding all disturbance of such possession until such eviction. If the
Magistrate considers that the case is one of emergency or if he is unable to decide as to
who was in possession on the date of preliminary order or if he finds that none of the
contending parties was in possession, he may attach the property under Sec. 146 and
may appoint a receiver.

7.3 The proceedings under this Section are of a summary nature. They are intended
to provide speedy and less expensive remedy. The primary objective is the prevention of
the breach of peace, arising in respect of a dispute relating to immovable property. The
Magistrate is empowered to take action under this Section in order to enable him to
settle the matter temporarily and to maintain the status-quo until the rights are decided

87
by a competent court. The principle. on which the Section is based is that whether a
person has the best or worst claim he cannot be permitted to take the law into his own
hands and disturb the public peace. The pendency of a suit in a Revenue or Civil Court
in respect of the right in question is no bar to action being taken under this Section.
Similarly the pendency of the prosecution under Section 448 I.P.C. in respect of the
subject matter of dispute is no ground for staying the proceedings initiated under this
section. The justification for the proceedings is that breach of the public peace is to be
prevented. It is therefore expedient that the proceedings should be concluded promptly
and as quickly as possible.

7.4 The section is meant for deciding disputes regarding possession of

immovable property between the private parties. Action under this Section is not
contemplated where the dispute is between the Government and a private party. Where
the question of possession is disputed and the case is one of emergency, the proper
course should be to pass a temporary order under Sec. 144 and then to institute an
inquiry into possession or straightaway take up proceedings under Sec. 145 by attaching
the property in dispute. Recourse to proceedings under Sec. 107 against both the
parties to the dispute concerning the land without proceeding under Sec. 145 would not
be proper. The correct approach would be to proceed under Sec.145 where the dispute
relates to land and breach of public peace is apprehended therefrom. The important
distinction between Sec. 107 and 145 is that in a case under Section 107 the
commission of the breach of the peace is alleged to arise from' the side of the person
against whom an application is made whereas under Sec. 145 the breach of peace may
be caused by any party to the dispute. Nonetheless it has been observed in some of the
cases that even in the cases of land disputes, after the proceedings are initiated under
Sec. 145 action can be taken under Sec. 107 if the circumstances justify, and in such
cases proceedings under Sec. 107 should be drawn up against both the parties so that
no one is placed at a disadvantage. In a case where it is difficult to say which of the
parties to a dispute is creating disturbance and where speedy remedy is necessary, an
order under Sec. 144 may be passed. Merely to pass an order Under Sec.144 and leave
it at that stage without disposing of that dispute finally, would be postponing the evil and
inviting its recurrence in a more complicated form later on. Where the Magistrate finds
that after an order under Sec. 107 or Sec. 144 has been passed, the likelihood of the
breach of peace no longer exists, then action under Sec. 145 would be unnecessary. On

88
the other hand, pending proceedings under Sec. 145, if an emergency referred to in Sec.
144 arises, an order under Sec. 144 will not be without jurisdiction. It is not advisable to
allow proceedings under Sec. 107, 144 and 145 to go on at one and the same time. The
Magistrate should state distinctly under what section he is proceeding.

7.5 The proceedings under this Section constitute, an inquiry within the meaning
of Sec.2(g) of the Code. It is quasi-executive in character. The action intended is purely
preventive and provisional in nature. Thus it may be termed as quasi-civil proceedings. It
constitutes a "case" within the meaning of Sections 192 and 407 of the Code. The
District Magistrate has power under Sec. 192 to transfer a proceeding of which he has
taken cognisance. The application filed under this section is not a complaint within the
meaning of Sec. 2(d) of the code. Since it does not relate to an offence. Sec. 8 to 11
(provisions regarding special Oath) of the Oaths Act 1873 apply to the proceedings
under this Section.

7.6 Where a petition under this Section has been dismissed by a Magistrate in
limini for want of specific allegations regarding the likelihood of breach of peace, a fresh
petition based on the same facts, containing such specific allegations can be entertained
by the Magistrate.

7.7 The words "is satisfied" appearing in Sub-sec. (1) of See 145 convey that in
order to initiate proceedings under this Section it is essential for the Magistrate to be
satisfied from a report of a police officer or other information that a dispute likely to
cause a breach of peace exists. Such a finding should be clear and unambiguous.

7.8 A person making an application to the Magistrate to initiate proceedings

under this Section does not initiate a 'CASE' but only informs the Magistrate. It is not
obligatory on the part of the Magistrate to record a sworn statement of the petitioner. A
Magistrate is not bound to take action on a police report only. He must have a statement
of facts before him so that he may exercise his own judgement in arriving at a
conclusion. It is not safe to proceed under this Section on the statements of interested
persons. In such case it would be advisable to call for a police report. The mere fact that
the Magistrate states in his order that he is satisfied about the circumstances is not
sufficient to give him jurisdiction. The Magistrate must have sufficient material before him
before he can proceed. The evidence which he may subsequently record after issuing a
notice under Subsec. (1) will not justify the preliminary order, since the Magistrate is

89
required to be satisfied that apprehension of the breach of peace exists before the order
is issued.

7.9 The words "report of a Police Officer" appearing in Sub-sec. (1) indicate that the
Magistrate is entitled to use a police report for the limited purpose of satisfying himself
about the locality of the breach of peace, the identity of the subject matter and of the
contending parties. The police report would be inadmissible as evidence in the inquiry
relating to the parties. On receipt of an application for action under this Section the
Magistrate may call for a police report and on his being satisfied on such report that
there is no likelihood of the breach of peace he may dismiss the application. The
Magistrate should not forward the application itself to the police for inquiry and report. In
other words the police report can be taken as a piece of material for passing a
preliminary order. The Magistrate cannot delegate his discretion to the police to find out
whether circumstances exist to pass a preliminary order. The words "or other
information" appearing in Sub-sec. (1) of Sec. 145 show that the Magistrate has wide
discretion to take into account all possible material before a preliminary order is made.
They are wide enough to include knowledge derived from "any source whatever.

7.10 Whenever there is disagreement between the parties regarding land or water,
the Magistrate, will have jurisdiction if breach of peace is apprehended. It is not
important whether the dispute is reasonable or bona fide, or whether a decree has been
"

passed in favour of a party or possession has been delivered to him in execution of

decree, or whether the. dispute can be easily resolved. The words "dispute likely to
cause a breach of the peace exists concerning any land or water or the boundaries
thereof" are wide enough to cover all kinds of disputes - not only as to the fact of
possession but also disputes as to the right to own or use immovable property if they are
likely to cause the breach of peace. The jurisdiction conferred under this Section is of a
special character and it can be exercised only if the dispute is such that it is likely to
cause a breach of peace. If the apprehension is that breach of peace may take place at
future date, the Magistrate will not be justified to take action under this Section. It is not
necessary that there should be a danger of immediate or imminent breach of peace.
There need not be overt acts of violence. It is sufficient if there is reasonable
apprehension that a disturbance of peace is likely to occur. Sub-sec.(2) of Sec. 145
makes it evident as to how the expression land or water should be interpreted. The
words within his local jurisdiction appearing in Sub-see (1) show that it is only where the

90
dispute relates to property within the local limits of the Magistrate's jurisdiction that the
Magistrate is empowered to initiate proceedings under this Section. However, an
objection to the jurisdiction of the Magistrate shall have to be taken at the earliest
opportunity.

7.11 The preliminary order shall have to contain the following matters

(1) Statement that the Magistrate is satisfied as to the existence of a dispute likely to
cause breach of peace;

(2) Grounds on which he is so satisfied;

(3) Correct description of the property in respect of which there is dispute;

(4) Statement showing the names of the person concerned in such a dispute; and

(5) Direction calling upon the persons to attend the court of the Magistrate in person
or by a pleader within the time to be fixed and to put in written statement of their
claims in respect of the fact of actual possession of the subject matter in dispute.

When Preliminary order can be modified:

7.12 The Magistrate must see that his order is promulgated at the earliest. The
preliminary order can be modified at a later stage, if the Magistrate is satisfied that there
is some mistake in showing the property in dispute. If the Magistrate finds at a later
stage that there is no emergency in respect of a portion of the property, an amendment
can be effected to the preliminary order. If a preliminary order describes the property in
dispute wrongly, the proceedings would be vitiated and without correcting the description
of the property the Magistrate will have no jurisdiction to proceed with the matter. The
names of the parties to the dispute shall have to be specifically shown in the preliminary
order. The words " parties concerned in such dispute" do not mean merely the person
actually disputing. All persons having connection with the possession of the subject of
the dispute in some capacity or the other would be necessary parties to the proceedings.
The owner or proprietor of the property who is in possession through his servants or
manager is a person concerned in the dispute and he is therefore a necessary party. In
a dispute between rival landlords, tenants who are in actual possession in their own right
are necessary parties to the proceedings. In a dispute between a tenant and sub-tenant,

91
the landlord is not a necessary party. In a dispute between two communities, the
Magistrate may choose the right persons to represent each community and pass an
order on the communities. There is no provision to the section for addition of parties.
Sub-sec. (7) only provides for bringing legal representatives of the deceased parties on
record. Sub-sec.(5) enables third parties who are interested in the property to intervene
only to show that no dispute likely to cause breach of peace exists.

7.13 The Court has no power to drop the proceedings on the death of any of the
parties. The legal representative of the deceased party shall have to be brought on
record and the proceedings shall have to continue. If there is any dispute as to who are
the legal representatives the Court should implead all the persons who claim to be the
representatives of the deceased. Proceedings need not commence afresh and may be
continued from the stage at which the deceased party had died.

7.14 If any party fails to attend the court on the specified date the proceedings should
not be dropped. The case may be disposed of 'exparte' after taking evidence adduced
by the other side. If both the parties are absent and there is no satisfactory material
before the Magistrate for proceeding under this Section, the Magistrate may proceed
under Sec. 146 and take steps to attach the subject matter of the dispute and to appoint
a Receiver. The proceedings under this Section are intended to prevent any breach of
public peace. It would therefore be the duty of the Magistrate to continue the
proceedings till the breach of peace subsists even if there is any default, by any party in
making appearance. It is not open to the Magistrate under any provision of the Code to
treat the informant as a complainant and to dismiss the proceedings for the default of
such complainant or his counsel on the date of hearing.

7.15 The provision made in Sub-sec. (1) to file written statements is merely to
assist the Magistrate in ascertaining the grounds on which each of the parties claims
possession. Such written statements are not in the nature of the pleadings in a civil
action. The question of possession need not therefore be limited and confined to the
points put forth in such written statements.

7.16 The words "fact of actual possession" appearing in Sub-sec. (1) show that the
Magistrate is empowered to deal with only the question of actual physical possession. It
must be noted that two elements must exist in order to constitute a possession in fact-
the 'animus possidendi' and the 'corpus possessionis'. The former is the mental element

92
and consists in the intent to possess. The latter is the physical element and consists in
the concrete realisation of the intent by actual user of the thing sought to be possessed.
The mere existence of any one of these two elements without the other will not be
sufficient to constitute the actual possession. Accordingly, the mere existence of animus
possidendi will not be sufficient to constitute possession without actual use of the
property. All that is necessary to establish possession by user is that some acts of
possession should have been done with the property or on the property. As regards the
acts of possession required by the element of corpus possessionis in respect of
cultivable land, the easiest and the most proper act of possession would be the
cultivation of that land. A possession can be discontinued by giving up acts of
possession on the property and then it may be called a discontinuance or termination of
possession. But, so long as the persons continue to do acts of possession on a land,
they cannot be said to have terminated their possession. But acts of trespass and acts of
possession by another party on the same land which has been left fallow by a party may
terminate the possession of the first party. Mere entries in the record of rights do not
constitute possession, as required in Section 145 Cr.P.C. What is required is a fact of
actual possession, with the presence of both animus possidendi and corpus
possessionis. Presumption of possession flowing from title is not available where the
land is capable of actual possession by cultivation or otherwise and when there is no
evidence of possession or the evidence adduced is unworthy of credit. The words
"actual possession" do not imply any right to possession. They do not necessarily mean
lawful or legal possession. They include even the possession of mere trespasser. The
possession contemplated by this section is one that is continuous and the isolated act of
a trespasser of possession of a property for a few days cannot clothe him with any right
to have an order in his favour. In some cases it has been held that "actual possession" is
not confined merely to bodily personal possession and that the person may be deemed
to be in actual possession through his servant, agent or manager or tenant or
usufructory mortgagee. In a dispute between the landlords, the Magistrate may make an
inquiry as to who holds the property, though the tenants of the rival parties may be in
actual possession. In a case where a tenant disclaims that he is a tenant of a certain
party, possession of such tenant cannot be considered as the possession of the
landlord. In that case the tenant himself becomes a necessary party to the proceedings.

93
7.17 The following disputes are held to be cognizable under Sec. 145:

(1) Dispute regarding the rights to collect the rent in respect of immovable property;

(2) Dispute relating to possession of standing crops and crops harvested but still on
the land;

(3) Dispute relating to trees growing on the land;

(4) Dispute as to the right to the lac grown on the trees and as to the right to tap the
tree;

(5) Dispute as to possession of a bund;

(6) Dispute as to possession of a Temple, or a Mosque or a Dargha;

(7) Dispute as to mining and boring rights;

(8) Dispute as to right of ferry;

(9) Dispute as to right of fishing;

(10) Dispute relating to a mill.

7.18 Movable property cannot be the subject matter of a dispute under this Section
unless it is in the form of standing crops or other produce of the land or rents or profits
thereof. But where movable property included in the immovable property is in the
premises of such immovable property, it can be held that it belongs to the person entitled
to possession of the immovable property and the Magistrate will have jurisdiction to pass
orders. Cut and severed trees a few days prior to the preliminary order and which are
still laying on or near the lands do fall within the expression "crop or produce of land".
Crops cut and removed from the land do not come within the purview of this section.

7.19 Sub-sec. (3) of Sec. 145 provides for the service and publication of the
preliminary order. It shall have to be served on such person or persons as the Magistrate
may direct, in the manner provided for service of summons. Further the order shall have
to be published by affixing the same to some conspicuous place at or near the subject of

94
dispute. The purpose of publication is to bring the proceedings to the notice of all
persons interested in the preliminary order and also to make known the grounds on
which the proceedings are started. The proceedings are intended to prevent breach of
public peace and therefore the Magistrate cannot call upon any party to bear the
expenses or costs of service of the preliminary order on any party.

7.20 Sub-sec. (8) provides for taking immediate action in respect of crops or other
produce subject to speedy and natural decay. The power to attach in case of emergency
can be exercised by the Magistrate under Sec. 146 of the Code, whereas the power
under Sub-sec. (8) of Sec. 145 is to the effect that the Magistrate may make an order for
proper custody or sale of such property. The words "produce" is not necessarily confined
to what is grown on the land but includes finished articles also.

7.21 The procedure adopted in the inquiry is almost the same as in the trial of
summons cases. The witnesses should be examined in chief, cross examined and re-
examined. The inquiry is expected to be a short and summary one. Sub-sec. (9) gives
discretion to the Magistrate to summon any witness at any stage of the proceedings on
the application of any party. The power of the court under Sec. 311 of the Code to
summon any person as a witness at any stage of inquiry is not in any way impaired by
the provision of Sec. 145. If summons are issued to witnesses and if they do not appear
the Magistrate can issue warrants for their arrest after recording his reasons in writing.
Sub-sec. (4) states that the Magistrate shall hear the parties. It will not be sufficient for
the Magistrate to say that the parties had filed written statements and that it is not
necessary to hear them. Hearing of the arguments is, therefore, mandatory. Sub-sec. (4)
permits both the parties to adduce oral evidence. The Magistrate cannot pass an order
without examining all the witnesses intended to be examined by the parties. In addition
the Magistrate may take further evidence, if any, as he thinks necessary. Under the
provisions of the Code it is sufficient to make a memorandum of the substance of the
evidence in the manner required by Sec. 274. The Magistrate is bound to record the
evidence of the witnesses himself and cannot delegate the duty to a subordinate
Magistrate. An order passed by the Magistrate on the evidence recorded by a
subordinate Magistrate would be without jurisdiction.

7.22 Under Sec. 148 and 310 of the Code, the Magistrate can direct a local
inquiry or make a local inspection in order to appreciate the evidence placed before him.

95
He has no power to direct the subordinate Magistrate to inquire into the question of
possession and then act upon the latter's report. The purpose of holding a local
inspection is only to appreciate the evidence and not to collect evidence. The decision in
the case cannot be based only on the material collected at the time of the local
inspection. Local inspections shall have to be held after due notice to the parties. The
Magistrate must make a record of the relevant facts observed by him at the time of such
inspection.

7.23 In Sub-sec. (4) of Section 145 it has been stated that the Magistrate shall
decide the question of actual possession without reference to the merits or the claims of
any of the parties who have a right to possess. The Magistrate may however, consider
the question relating to title in order to effectively decide the question of possession. The
facts showing the title can be brought on record to corroborate or to supplement other
evidence showing possession. Where the evidence adduced by the parties is equally
balanced and the Magistrate is unable to decide from such evidence as to which of the
parties was in possession, he may hold that the party who has a right to possession was
in actual possession on the date of the preliminary order on the presumption, that
possession follows title. Such a presumption however does not apply to a case where
the evidence of possession on both sides is equally unworthy of credit. The proper
course in such a case would be to pass an order under Sec.146. The fact that a decree
has been passed by a Civil Court awarding possession of the property or the fact that
possession of the property was delivered by a court in a suit between the parties will not
affect the jurisdiction of the criminal court to institute proceedings under this Section. The
fact of delivery of possession or the entry in the record of rights may raise a presumption
in favour of the continuance of that possession. But the other party can show that
subsequently. they have succeeded in effectively dispossessing the person put in
possession. What weight should be attached to any previous order or decree is a
question of fact depending upon the facts and circumstances of each case. Delivery of
symbolic possession is of little value as against judgement debtors who are in actual
possession and the possession of the latter shall have to be upheld in a proceeding
under Sec. 145. The Magistrate is bound to refer to the civil court's decree or order
relating to possession and assign reasons if he arrived at a conclusion different from that
of the Civil Court. He will not be justified in discarding other evidence showing the actual
possession only on the ground that there has been a previous delivery of the possession
in respect of the property. Merely because the dispute relates to a question of joint

96
possession, the Magistrate cannot decline to take action under Sec.145. If once the
Magistrate is satisfied that a dispute exists concerning land, water or the boundaries
thereof he acquires jurisdiction to inquire into the fact of the actual possession. Even if
some of the parties have valid claim' for possession, if the Magistrate finds that on the
date of the preliminary order only one of the parties was in actual possession, he will
have to uphold the possession of person who was in actual possession on the date of
the preliminary' order irrespective of the rights of other parties. Where there are different
joint owners claiming possession of different portions of the properties on the date of the
passing of the preliminary order, the Magistrate must consider each portion of the
property as a separate subject matter of dispute and pass orders. If on the date of the
order, both the parties are in joint possession of the property the Magistrate cannot pass
any order upholding the possession of one of the parties to the exclusion of the other.
Equally so, the Magistrate cannot uphold the said joint possession. However, the
possession of a group of persons claiming exclusive possession as a unit against other
can be upheld under this section.

7.24 Under the proviso to Sub-sec. (4) of Sec.145 the Magistrate shall have to
first decide as to who was in actual possession of the property in dispute on the date of
the preliminary order. If the Magistrate finds that the person in possession on the date of
the preliminary order had obtained possession forcibly or wrongfully dispossessing
another party within a period of two months from the date of the preliminary order, the
possession of such party shall have to be upheld. The Magistrate shall have to treat the
party so dispossessed as if he had been in possession on such date (i.e., on the date of
the preliminary order) and restore his possession. The dispossession contemplated
under the proviso to Sub-sec. (4) should be both forcible and wrongful. If the forcible
entry is rightful, proviso to Sub-sec. (4) does not come into operation. For instance,
where a person issued with a warrant of delivery of possession makes a forcible entry
into the property 'it cannot be called as a wrongful possession. On the other hand where
a person who had only a right to possession forcibly takes possession by taking the law
into his own hands, it would be a case of wrongful and forcible dispossession. The word
"wrongful" thus means possession taken otherwise than in due course of law.

97
7.25 The Magistrate may 'suo-moto' drop the proceedings if he is satisfied at any
stage of the proceedings that there is no likelihood of the breach of peace as for
example in the following cases:

(a) Where the petitioner agrees that he would give up his right and
he would not claim any possession of the property in dispute.
(b) Where one of the parties files a suit in respect of property in dispute and a
civil court appoints a Receiver for the property.
(c) Where a decree has been passed by a Civil court awarding possession to
one of the parties.
(d) Where a Revenue Court has restored a party to the possession of the
disputed land.
(e) Where the applicant's possession is joint and not exclusive, the
Magistrate would not be in a position to make an order regarding
exclusive possession in favour of the party.

7.26 Mere institution of a civil suit is no ground to stay the proceedings. Any
incidental finding by a court in a criminal case regarding possession of one of the parties
cannot make the proceedings liable to be stayed. Even if both the parties file a joint
petition for dropping the proceedings, the Magistrate must satisfy himself that the
compromise between the parties is real one and that there is no more cause for
apprehending the breach of the public peace and then only drop the proceedings. If,
after institution of the proceedings, the opposite party files a suit for the declaration of
title and confirmation of his possession and further obtain an interim injunction against
the applicant the Magistrate would not be justified in continuing the proceedings under
this Section.

7.27 Sub-Sec. (6) of Sec. 145 provides for making a final order. Such an order
shall have to justify the following requirements:

I. It should decide that one of the parties was in possession or should be deemed
to be in possession under the proviso to Subsec. (4).

II. The order should declare that such party is entitled to possession until evicted in
due course of law.

98
 III. It should forbid disturbance of possession until such eviction.

IV. In case the Magistrate proceeds under the proviso to Sub-sec. (4) it should
restore possession if the party is dispossessed.

7.28 The reasons for arriving at the findings must be recorded by the Magistrate. An
order which does not give reasons for the findings will not be sustainable. Magistrate will
not be justified in restraining both parties from entering into the disputed land without
deciding the question of possession. Such an order would be unsustainable. Similarly an
order in favour of a person who is not a party to the proceedings or who, though made a
party, disclaims any interest in the disputed property is without jurisdiction. Any order
passed under Sub-sec. (6) is no doubt final, but it is intended to be effective only upto
the time, till a competent court passes an order of delivery of possession to the
successful party to the proceedings or passes such order as may be necessary for the
protection of the property. Where a Civil Court appoints a Receiver in respect of the
property or where a Civil Court awards restitution of the property under Sec. 144 of the
Civil Procedure Code or under any proceedings under Sec. 6 of the Specific Relief Act,
1963, evicts the person in possession, the final order under Sub-sec. (6) comes to an
end and the person entitled to possession in accordance with the orders of the Civil
Court shall have to be put in possession. It is not necessary that such an order or decree
should be of a civil court. It is sufficient if the order is by a court acting under statutory
authority to award possession.

7.29 No express provision is made authorising the Magistrate to place the

successful party in possession. This statement is however, subject to the power of the
Magistrate to restore. possession to the persons who are entitled to get possession by
virtue of the proviso to Sub-Sec. (1). The result of the order of the Magistrate is to enable
the successful party to take possession of the property. The Magistrate would be
justified if he enforces his order against persons disobeying it either by instituting
proceedings against them under Sec. 188 I.P.C. or by proceedings under Sec. 114 or
107 of the Code. In addition, the Magistrate may initiate proceedings for contempt of
court. An order under Sub-sec. (6) amounts to dispossession of the party against whom
the order is passed. An unsuccessful party, cannot file a suit under Sec. 6b of the
Specific Relief Act, 1963. A final order passed under Sub-sec. (6) does not amount to
"Judgment" in trial. Section 353, 354, 362 of the Code do not apply, but still the general

99
principles underlying these provisions do apply and a final order under Sec. 145 has to
be pronounced in open court by the Magistrate who heard the proceedings and not by
his successor.

7.30 On the question whether persons not actually parties to the proceedings are
bound by an order passed under this Section, many of the High Courts have held that it
binds all the persons concerned in the dispute who had notice of the proceedings. The
proceedings started under Sec. 145 can be converted into those under both the
sections. However, a proceeding started under Sec. 145 cannot be converted into one
under Sec. 107 on a mere finding that none of the parties to the dispute was in
possession of the land on the date of the preliminary order. Similarly, in a proceedings
under Sec. 145 the Magistrate cannot take security from any or all of the parties.

7.31 Under Sec.133 of the Karnataka Land Reforms Act, where the tenancy of a
person, claiming to be in possession of an agricultural land is disputed, the matter will
have to be decided by the Tribunal under that Act and any proceeding before any other
Court or authority in so far as such question is concerned shall have to be stayed and
the matter referred to the Tribunal for a decision. A Magistrate however, does not lose
jurisdiction to proceed under Sec. 145 of Criminal Procedure Code, because the same
proceeding is pending in respect of land before the Tribunal. The dispute mentioned in
Sec. 145 is not a dispute concerning any land but a dispute likely to cause a breach of
peace concerning any land. It has accordingly been held by the High Court of Karnataka
that Sec. 133 Land Reforms Act will not be a bar to a proceeding before a Magistrate
under Sec. 145 of Cr.P.C.

Power to attach subject of the dispute and to appoint Receiver:

7.32 Sec. 146 is a corollary to Sec. 145 and the proceedings under Sec.146
are in continuation of those under Sec. 145. If at any time after making an order under
145 (1) the Magistrate considers the case to be one of emergency or if on inquiry under
Sub-sec. (4) of Sec. 145 the Magistrate finds that none of the parties was in actual
possession of the subject of dispute on the date of the preliminary order or if the
Magistrate is unable to satisfy himself as to which of them was in such possession he
may attach the properties under this Section, until a competent court determines the
rights of the parties with regard to the person entitled to the possession. As soon as a
competent court determines the rights of the parties to the subject of dispute or its

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possession, the Magistrate ceases to have authority to retain control on the property,
and he has to withdraw the attachment and deliver possession on the basis of such
judgment. An order under this Section shall have to be in Form No 26 of Second
Schedule of Cr. P.C. Proviso to Sec. 146 (1) provides that the Magistrate may pass an
order raising an attachment whenever he is satisfied that there is no longer any
likelihood of breach of peace.

7.33 Under this Section the Magistrate has the power to make an order regarding
the management and control of the property during the period of attachment. He can
appoint some person to manage the property on his behalf and subject to his control and
supervision. The Magistrate may even settle the land with the highest bidder in the case
of temple property. He may also make necessary arrangements for the performance of
the daily puja. If the property attached is of a "mutt" the Magistrate has power to pass an
order regarding jewellery or other movable property belonging to the "mutt". He will not
be exercising his discretion judiciously if he appoints one of the parties to the dispute to
manage the property on his behalf. The person appointed to manage the property can
be reimbursed for legitimate cost incurred by him for the management of the property.
He is only an agent of the Magistrate and has all the powers of a receiver under the Civil
procedure Code. Soon after an attachment is made, the property passes into the
custody of the court and any person entering upon the land would be liable to be
punished under Sec. 447 I.P.C.

7.34 The Magistrate is empowered under this Section to attach the subject of
dispute in three cases, viz., (i) if it is a case of emergency; or (ii) if none of the parties
was in possession; (Hi) if no decision is possible as to the possession. And the order of
attachment remains in force until a competent court decides the rights of the parties or
until the Magistrate, on being satisfied that there is no longer any likelihood of a breach
of peace, withdraws it. If a receiver is appointed subsequently by any civil court, then the
Magistrate's receiver shall handover the subject of dispute to the receiver of the Civil
Court.

Dispute concerning right of use of land or water:

7.35 Sec. 147 deals with the power of the Executive Magistrate to take preventive
action in cases of disputes concerning rights of use of land or water, whereas Sec. 145

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empowers the Magistrates to take preventive action in respect of disputes concerning
land or water or the boundaries thereof. Under this Section, temporary orders can be
passed until the rights of the parties are decided by a Civil Court. Under Sub-sec. (2) the
Magistrate shall have to hold an inquiry and then pass necessary orders. The District
Magistrate has powers under Sec. 411 of the Code to transfer the proceedings instituted
under this Section. These proceedings are quasi-civil in nature.

Object and Scope:

7.36 A proceeding under this Section is a quasi-civil proceeding. If, therefore, the
question at issue between the parties has already been the subject-matter of suit in the
civil court, the trying Magistrate has no jurisdiction to institute the proceeding. It would
not be sufficient that there should be a mere discussion or verbal altercation between
persons claiming rights of the kind described. There must be an acute dispute. In order
to give jurisdiction to a Magistrate under this Section, he must be satisfied from the
police reports, or other materials that there is an imminent danger of a breach of the
peace resulting from a dispute between the parties concerned. There should be a
present dispute and a present fear of disturbance; and the section will not apply to a
state of things indicating that there may be a breach of the peace in future.

7.37 Under Sub-sec. (1) the jurisdiction of the Magistrate to institute proceedings
under this Section arises only when he is satisfied that a dispute exists concerning the
right of use of land or water and further that such a dispute is likely to cause a breach of
peace. The Magistrate has to record a finding that has is so satisfied on the material
before him and draw up a preliminary order showing the grounds. He cannot drop the
proceeding merely on the ground that the dispute relates to the rights exercisable only at
particular season and that the season is over.

7.38 The words" Land or water" carry the same meaning as in Sec. 145(2). They
are not confined to private property only, but they are wide enough to include public
properties, such as public roads, streets, pathways and channels. The power under this
Section should not be exercised until it is clearly proved that there is a right by custom or
by grant or by statute, in one section of the public to prevent another section of the
public from using the public street or pathway on particular occasions or for particular
purpose, when such use is prima facie lawful. The word "right" appearing in this

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section suggests that it must be a legal right. If the right claimed is not legal no
proceedings under this section can be started. For instance a right to restrain another
from fishing in the seas cannot be enforced under this Section. The use must be as right.
Any use by way of licence or permission will not be sufficient to proceed under this
section.

7.39 In some cases the following" rights" are held to be public rights in respect of
which proceedings may be initiated;

1) a right to take a car in procession along a public road to a temple.

2) a right to enter a temple or other place of public worship and perform puja
therein, or to worship therein.
3) a right to enter a mosque and officiate as kazi thereon.
4) a right to perform chandanakudam festival.
5) a right to bury dead in burial ground.
6) a right to enter a samadhi.
7) a right to erect a bund.

8) a right to go upon land of another for the purpose of collecting

gratuities for certain religious purpose.
9) a right of way absolute or limited by the exclusion of vehicular traffic.
10) a right to lay warps in a street.
11) a right to let off water by its natural course.
12) a right to fish.
13) a right to moor boats and dry fishing nets on the land of another.
14) a right to use the water emanating from the river and. running through a
particular channel; but not a right to the flow of water in a nullah.
15) a right to irrigate from a tank.
16) a right to use of water of a tank.
17) a right to use the water of a well.
18) a right to ply ferries.
19) a right to drain off surplus water
20) a right to hold a private market on the Government land by long and immemorial
user.
21) a right of grazing on certain land.

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7.40 On the other hand the following "rights of user" of land or water have been
held not to be such rights which can give cause to a proceedings under this Section;

1) a right to an undivided share in a property.

2) a right to remove sandalwood paste from the person of an idol.
3) a right to a dignity or privilege not property cognizable by a Civil Court.
4) a right relating to offering in a temple.

5) an obstruction of a drain into which the sewage of complainant's

premises fell.

7.41 The word "otherwise" appearing in this Section shows that the section
can be applied to cases where a person may not have a right of easement but may have
acquired a right of user by grant or custom. Such a right shall have to be a right distinct
from the use of the land as an owner. The word "easement" has been used in this
Section not in the restricted sense in which it is used under the English law, now is it
confined to such easement as required under Sec. 25 of the Indian Limitation Act, 1963.
What the Sub-sec. (3) provides is that the right must have been exercised within three
months next before the receipt of the report of the Police officer or other information
leading to the institution of inquiry.

7.42 In the first instance the Magistrate must make a preliminary order in writing
stating the grounds of his being satisfied as to the existence of a dispute likely to cause
a breach of peace and requiring the parties concerned to attend his court and put in
written statement the respective claims to the right in dispute. The preliminary order
may direct a party not to interfere with the exercise of the right claimed by the other party
pending disposal of the matter, but the Magistrate cannot pass an absolute order
requiring party not to interfere with the exercise of such right until he obtains a decree or
order from a competent Civil Court.

7.43 The words "parties concerned in such dispute" used in this Section show that
once an inquiry is instituted, the Magistrate will have power to add such person as he
deems necessary for the proper decision of the dispute. The owner of the land in regard
to which a way is claimed is a necessary party, though he may not be actually
concerned with the dispute. The right to use a pathway for carrying dead bodies is of
such a nature that the entire public will be interested and in such cases the provisions

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contained in order (1) Rule 8 of Civil Procedure Code may be followed. An order passed
without the necessary parties on record will not be binding on such parties and therefore
care should be taken to bring on record all the concerned parties to the dispute. But no
parties can be added after the commencement of the inquiry. It is obligatory upon the
Magistrate to see that the notices are served before a final order is passed under this
Section.

7.44 The proceedings under this section being of an emergency nature, elaborate
inquiry into the rights of the parties are not contemplated. After the parties file their
written statements, the Magistrate shall have to hear the parties, receive all such
evidence as may be produced by them, take such further evidence as may be necessary
and decide the question of existence of such right as claimed by the parties. As regards
the procedure, the provisions contained in Sub-sec. (5), (7) and (9) of Sec. 145 would be
applicable to the proceedings under Sec. 147. Where the Magistrate appoints a
Commissioner to hold a local inspection, he cannot take into evidence the report of the
Commissioner without calling him for examination in Court. The Magistrate should not
pass an order merely on the ground of the convenience of the parties or on the basis of
any private information given to him. The subject matter of the dispute under this Section
being a right of use of land or water the Magistrate cannot pass an order of attachment
or an order appointing a Receiver. Similarly he has no power to pass any interlocutory
order restraining the parties from exercising their rights pending inquiry. In case of
imminent danger to the public peace calling for immediate action, the Magistrate shall
have to proceed under Sec. 144 and not under this Section. The proceedings under this
Section having been instituted for the prevention of the breach of peace, the applicant or
the person on whose application the proceedings are started cannot be called as a
complainant. The proceedings, therefore, cannot be dismissed for default of such
applicant or informant.

7.45 According to Sub-sec. (3) of Sec. 147, if the Magistrate finds that such a right
exists he may make an order prohibiting any interference with the exercise of such right
and also order for the removal of such obstruction. Under the proviso to Sub-sec. (3), the
Magistrate is required to give a finding as to the exercise of such right. Where he finds
that the right itself did not exist no question of recording a further finding about its use
arises. It is not necessary that any specific instance of the exercise of the right should be
proved where a general continuance of exercise of such right is satisfactorily made out.

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In cases where the facts necessary are on record, the Magistrate may draw presumption
under Sec. 114 of the Indian Evidence Act to the effect that the party having the right of
user of the land exercised such right in the absence of clear evidence to the contrary.
Under the proviso to Sub-sec. (3) it has been now specifically laid down that the order
under this Section cannot be made, where the right is exercisable at all times of the
year, unless such right has been exercised within three months next before the receipt of
the report of the police officer under Sub-sec. (1) or other information leading to the
institution of the inquiry. In such cases where the right is exercisable only at a particular
season or on particular occasion, it must be found out whether such right has been
exercised during the last of such seasons or occasions. Under Sub-sec. (3) the
Magistrate is empowered even to order for the removal of any obstruction in the exercise
of any such right. An order under this Sub-section must be in Form No 27, of Second
Schedule of Cr.P.C.

7.46 Sub-sec. (4) provides for the conversion of the proceedings commenced
under Sec. 145 into proceedings under Sec. 147 if the Magistrate finds that the dispute
is regarding an alleged right of user of land or water. A proceeding commenced under
Sec. 133 cannot be converted into a proceeding under Sec. 147 unless the conditions
necessary to give the Magistrate jurisdiction under this Section are established and a
preliminary order is passed. It is competent for the Magistrate under this Section to pass
an order of staying or dropping the proceedings on the ground that a civil suit has been
instituted and that there is no likelihood of the breach of the peace. Once the
proceedings are dropped, they cannot be revived subsequently. However, dropping the
proceeding does not preclude any party from moving the Magistrate by another
application for asking fresh proceedings under this Section.

Local inquiry:

7.47 Sec. 148 provides for local inquiry in proceedings under Sections 145, 146, and
147. The object of holding a local inquiry is that it should assist the Magistrate in
determining the boundaries or identity of the property in dispute and to aid him in
appreciating the evidence on record. A local inquiry cannot be directed on matters which
are required to be proved by evidence. The function of making investigation into the
dispute regarding possession cannot be transferred to a Subordinate Magistrate. A
person deputed for local inquiry under this Section is competent to examine witnesses if

106
directed. The report of the inquiry forms part of the proceedings and therefore the inquiry
should not be held without due notice to the parties. The Magistrate concerned must
depute only a Magistrate subordinate to him and not any other person to make a local
inquiry if examination of witnesses is required. Sub-sec. (2) of Sec. 148 provides that the
report of the person so deputed forms part of the evidence on record. A party affected by
this is entitled to an opportunity of rebutting the same. Any evidence of witness recorded
by the Magistrate deputed for local inquiry cannot be acted upon unless the parties are
heard on the point. After receiving the report, the Magistrate has to hold further inquiry
and decide the matter. He cannot base his order merely on such report without taking
into account the evidence tendered by the parties before him. However, if no evidence is
adduced by the parties the Magistrate can act upon the said report.

7.48 Sub-sec. (3) provides for the costs incurred by the parties to a proceeding
under Sec. 145, 146 and 147. The levy of costs are within the discretion of the
Magistrate who finally disposes of the proceedings. Where the Magistrate, trying the
case has passed an order for costs, the recovery or assessment thereafter can be made
by the successor. Compensation on account of loss suffered due to the inability to the
opposite party to harvest the crops on account of the proceedings under Sec.145 cannot
be treated as an order for costs. The Magistrate may include the cost in making an order
of attachment under Sec.145(4). The cost incurred for the payment of remuneration to
the manager appointed for the land attached can be ordered. The costs incurred must
be commensurate with the witnesses examined and the number of hearings. An order
awarding costs should ordinarily be made simultaneously with the order on the merits.
An actual assessment may be made later. However, there is no bar to pass an order on
merits and then reserve Judgement as to the costs, but it shall have to be. passed within
a reasonable time. In such a case notice must be given to the party against whom the
order will be passed. The Magistrate has the power to pass an order for the costs only
against the person who is a party. Where party has succeeded substantially, it is proper
that the opposite party should be ordered to pay the costs. Where an order awarding
costs has been made by a Magistrate, neither he nor his successor can refuse to
recover the costs on ground of delay, as there is no discretion given to the Magistrate by
this Section or by Section 421 to refuse to recover the costs.

000

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 CHAPTER - VIII

INQUESTS AND INQUIRIES INTO

UNNATURAL DEATHS
(Sec. 174 to 176 of Criminal Procedure Code)

8.1 Sees. 174 to 176 of the Criminal Procedure Code deal with inquests or inquiries
into unnatural deaths. When the officer in charge of Police Station or some other police
officer specially empowered, receives information, that a person has committed suicide
or has been killed or has died under circumstances raising a reasonable suspicion that
some other person has committed an offence, he shall immediately send a report to the
nearest Executive Magistrate empowered to hold inquests (Sub-Divisional Magistrate) in
Form No. 142 of the Karnataka Police Manual. Thereafter the police officer concerned
shall immediately proceed to the place where the body of such deceased person is, and
unless otherwise directed by the Sub-Divisional Magistrate, shall make an investigation
and draw up a report of the apparent cause of death (Sec. 174 (1). He shall send the
dead body immediately for Post Mortem examination, to the nearest Civil Surgeon or
other qualified medical officer. He shall obtain the Post Mortem examination report
immediately and submit the. final report to the Sub-Divisional Magistrate, most
expeditiously, for further necessary action in the matter.

8.2 The Sub-Divisional Magistrate should obtain the final report from the police in
about three days after the occurrence of death of the deceased person; otherwise, the
very object of this Section is likely to get defeated. On perusal of the final report, if the
Sub-Divisional Magistrate agrees with the opinion furnished by the police officer
concerned as to the cause of death, he may accept the some and intimate the police
accordingly. However, if he disagrees with the opinion of the police or deems it fit and
necessary to inquire into the cause of death himself, either instead or in addition to the
investigation held by the police officer, he may do so at any time in the manner indicated
below.

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8.3 The Code has empowered any District Magistrate or Sub-Divisional
Magistrate and any other Executive Magistrate specially empowered in this behalf by the
State Government or the District Magistrate to hold inquests [Sec.174(4)].

8.4 Rules regarding the conduct of Post-mortem examination by the Medical Officer
and points to be observed while investigating case of unnatural or suspicious death are
found in orders 1374 to 1396 (Chapter XXXV) of Karnataka Police Manual (Volume II)
and it is necessary that Magistrate empowered to hold inquests should go through the
same.

8.5 Section 176 of the Code of Criminal Procedure, 1973, confers powers on the
District Magistrate, Sub-Divisional Magistrate or any other Executive Magistrate,
specially empowered in this behalf by the State Government or the District Magistrate to
hold inquest on the dead-body of the person who has died while in the custody of the
Police or in any other case mentioned in Sub-sec. (1) of Sec. 174. The object of this
Section is that an inquiry into a suspicious death should not depend merely upon the
opinion of the Police but there should be a further check by a Magistrate holding an
independent inquiry directed to elucidate the facts of a violent or unnatural death before
there is any reasonable suspicion of the commission of an offence. The Magistrate
conducting the inquest shall have all the powers which he would have in holding an
inquiry into an offence.

176. [(1) †[***] when the case is of the nature referred to in clause (i) or clause (ii) of sub-
section (3) of section 174] the nearest Magistrate empowered to hold inquests shall, and
in any other case mentioned in sub-section (1) of section 174, any Magistrate so
empowered may hold an inquiry into the cause of death either instead of, or in addition
to, the investigation held by the police officer; and if he does so, he shall have all the
powers in conducting it which he would have in holding an inquiry into an offence.
‡ [(1-A) Where-
(a) any person dies or disappears, or
(b) rape is alleged to have been committed on any woman,
while such person or woman is in the custody of the police or in any other custody
authorized by the Magistrate or the Court, under this Code in addition to the inquiry
or investigation held by the police, an inquiry shall be held by the Judicial Magistrate

109
 or the Metropolitan Magistrate, as the case may be, within whose local jurisdiction
the offence has been committed.]
(2) The Magistrate holding such an inquiry shall record the evidence taken by him in
connection therewith in any manner hereinafter prescribed according to the
circumstances of the case.
(3) Whenever such Magistrate considers it expedient to make an examination of the
dead body of any person who has been already interred, in order to discover the
cause of his death, the Magistrate may cause the body to be disinterred and
examined.
(4) Where an inquiry is to be held under this section, the Magistrate shall, wherever
practicable, inform the relatives of the deceased whose names and addresses are
known, and shall allow them to remain present at the inquiry.
*[(5)The Judicial Magistrate or the Metropolitan Magistrate or Executive Magistrate or
police officer holding an inquiry or investigation, as the case may be, under sub-
section (1-A) shall, within twenty-four hours of the death of a person, forward the
body with a view to its being examined to the nearest Civil Surgeon or other qualified
medical man appointed in this behalf by the State Government, unless it is not
possible to do so for reasons to be recorded in writing.]
Explanation.- In this section, the expression “relative” means parents, children,
brothers, sisters and spouse.
† The words “When any person dies while in the custody of the police or “ omitted by the CrPC (Amendment) Act, 2005 (25 of

2005), S.18 (to be effective from the date of its notification).

‡inserted by the CrPC (Amendment) Act, 2005 (25 of 2005), S.18 (to be effective from the date of its notification).
*inserted by the CrPC (Amendment) Act, 2005 (25 of 2005), S.18 (to be effective from the date of its notification).

WITNESSES TO INQUEST

Criminal P.C.S. 174 – Investigation- INQUEST REPORT – Is prepared by

Investigation Officer to find out prima facie the nature of injuries and the possible
weapon used in causing those injuries as also the possible cause of death – Witnesses
of inquest were also eye-witnesses – Fact that they did not state names of assailants
while describing cause of death in Inquest Report – Sufficient to doubt their presence at
spot at time of occurrence. (Para 15) (Suresh Rai v. State of Bihar AIR 2000 SC
2207)

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Exhumation:

8.6 Whenever a Magistrate empowered to hold inquest considers it expedient to

make an examination of the dead-body of any person, who has been already interred, in
order to discover the cause of his death, the Magistrate may cause the body to be
disinterred and examined by the nearest Civil Surgeon or other qualified medical officer.

8.7 The following points should be borne in mind regarding the formalities
precedent to exhumation and Post-mortem examination.

I. The Magistrate shall examine witness to prove the identity of the disinterred body
before commencing the investigation.
II. The dead-body should not be exhumed after sun-set.

III. The Corpse must be exhumed in the presence of two or more respectable
inhabitants of the locality.
IV. The Corpse must be exhumed in the presence of a doctor.

V. Wherever practicable, the relatives of the deceased, whose names and

addresses are known, shall be informed about the exhumation and examination
of the dead-body, and they shall be allowed to remain present at the exhumation.
VI. Crowding round the body should be avoided.

VII. The body may be handed over to the relatives of the deceased after post-mortem
examination depending upon the facts and circumstances of the case.

8.8 If the Magistrate suspects foul play, he shall direct the police to investigate
into the matter further.

8.9 The District Magistrate or the Sub-divisional Magistrate is also empowered to

pass an order authorising any officer-incharge of a Police Station or any superior Police
officer lawfully making an investigation into the unnatural or sudden death of any person,
whose body has been already buried, to exhume it and get it examined by the nearest
Civil Surgeon or any other qualified medical officer.

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Death in police Custody:

8.10 Order 193 of the Karnataka Police Manual deals with procedure to be
followed in cases of inquiry into cases of death or injury in Police custody. On receipt of
a requisition from the Police to hold inquest proceedings on the dead body of a person,
who has died while in the custody of the Police, the Executive Magistrate empowered to
hold inquest shall proceed to the Police Station where the death has occurred. It is
desirable that he should take an official of his office along with him for assistance. Before
starting the Inquest Proceedings, the Magistrate shall, wherever practicable, inform the
relatives (Parents, Children; Brothers, Sisters, and Spouses) of the deceased, whose
names and addresses are known, and shall allow them to remain present at the inquiry.
He shall secure two or more independent and respectable Panchayatdars, through the
official accompanying him, who should remain present throughout the Inquest Proceed-
ings.

8.11 The cause of death of the deceased, according to the Police, will be
generally:

(i) Suicidal hanging; or

(ii) Consuming poison; or
(iii) Heart-failure; or
(iv) Fits.

8.12 In order that no important medico-legal evidence may be overlooked, the

following relevant points of procedure and observation, mentioned in the Karnataka
Police Manual are to be carefully attended to by the Magistrate:

1. In cases of hanging

(a) to carefully inspect the position of the body and the surroundings and find
out whether the doors and windows of the room where the body is
suspended, are bolted from inside and outside;

(b) to note, before cutting down the body any lividity of face, especially of lips

112
 and eyelids, any projection of the eyes, the state of the tongue, whether
enlarged and protruded or compressed between the lips, the escape of
any fluid from the mouth and nostrils and direction of its flow;
(c) the ligature should be removed by cutting away from the knots;

(d) the ligature should be preserved for comparison and identification later
with the materials found in the room;

(e) the ligature should be examined for any blood stains on any foreign
material or hair sticking;

(f) on cutting down the body or removing the strangulating medium to note
the state of the neck whether bruised along the line of the strangulation.
(g) to note:
(i) the number of ligature marks;
(ii) their depths;
(iii) their directions;
(iv) their colour;
(v) their pattern positions;
(vi) discharges from mouth, nose and ear;
(vii) marks of saliva on the chin and chest
(viii) external appearances of decomposition such as:
- protrusion of eye-balls
- protrusion of tongue;
- discharge of blood-stained fluid from nose and mouth
- blobs on the body;
- peeling of the skin on the body;

(ix) injuries cause by the victim in attempting to commit suicide by the

means, viz., cuts in neck, wrist, etc.;

(x) injuries by coming into contact with furniture, walls, etc., during
convulsive movements of the body;
(xi) injuries caused by anti-bites, etc.; and
(xii) any particular smell emanating from the body;

113
 (h) to note the state of the thumbs, whether crossed over the palm;

(i) to examine the clothes;

(ii) for tears,
(ii) for signs of struggle,
(iii) blood stains
(iv) seminal stains,
(v) stains of vomit,
(vi) faecal matter, and
(vii) urine.

(j) to seal all materials, such as ropes, or clothes by which hanging has been
effected, as well as any other articles found in the room, where the body has been found
hanging.

In addition to the points mentioned above in the Police Manual, the

Magistrate should get the body photographed before and after lowering it. He should
also get the length, breadth and height of the room and the distance of the feet of the
deceased from the floor, measured. A sketch of the room indicating the position of the
dead body before it is lowered should be prepared.

2. In case of Poisoning:

(a) to get any food, drink, tobacco or drugs found near the body collected and
preserve the same under seal;

(b) if vomiting had occurred, to swab up with clean rag any vomited matter
which may be on the person or floor and seal up the rag. in a packet;

(c) to get any clothing, matting, etc., into which any vomit matter has soaked,
sealed;

(d) to ascertain the exact time between the taking of food, drinks or
medicines, the appearance of symptoms and the occurrence of death;

(e) to examine the colour of the body and the face; and

114
 (f) to see whether the body is contorted

It should be borne in mind that it is possible to push some poison through a tube
inserting it into the mouth and pressing it upto the stomach-even after the death of a
person, and that if the poison remains in the stomach only and does not enter the blood
vessels and effect all the organs and particularly the respiratory system, it cannot cause
death.

3. In case of Heart failure:

As regards death due to heart failure, it is the medical expert alone who can
say for sure whether the death has occurred due to heart failure. The Magistrate should
ascertain from the Police:
(a) approximate time when the deceased suffered heart attack;
(b) whether he was sweating; and
(c) arrangements made for the treatment.

4. In case of Fits:

(a) to ascertain from the relatives of the deceased whether he had

convulsions and epileptic fits in the past;

(b) to ascertain the time when the deceased had an attack of fits,
arrangements made for the treatment and the time of death;

(c) to find out whether the tongue is compressed between the teeth;

(d) Whether there are any signs of froth having come out of his mouth when
he fell unconscious.

In all the above cases, it is desirable to take the photograph of the body as it
is found without disturbing it. If the photograph does not give a view of the face, another
photograph should be taken of the head and shoulder keeping the body in a suitable
position.

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8.13 After completing the above formalities, the Magistrate should examine the dead-
body carefully and systematically starting either from the head or from the surface of the
feet and record the nature, shape, position, length, breadth and depth of wounds,
bruises, contusions or other marks of injuries. Whatever may be the apparent cause of
death, body should be carefully examined to see if there are any injuries. The Magistrate
should prepare a report of Investigation in Form No. 145 Karnataka Police Manual
carefully avoiding vague expressions. The investigation should be completed at a stretch
without adjourning it or completing it in instalments. He should also obtain the signatures
of the Panchayatdars who concur with the opinion furnished in the Inquest Report, and
record the statements of the concerned Police Officials, separately in Form No. 137
Karnataka Police Manual.

8.14 Thereafter, the dead-body must be sent for Post-mortem Examination along
with (i) necessary report prepared in the Annexure to Form NO. 146; and (ii) a copy of
the Inquest Report, Any substances found near or on the deadbody should also be sent
for examination.

8.15 If, after pursuing the Post-mortem Examination Report and weighing the
circumstantial evidence, collected by him while conducting the Inquest Proceedings the
Magistrate is satisfied that the death is not due to any foul play, he may close the case
and send a report to the District Magistrate. However, if he suspects any foul play, he
must send a detailed report to the jurisdictional Chief Metropolitan Magistrate or Chief
Judicial Magistrate as the case may be, under Sec. 190 of Cr.P.C for further inquiry into
the cause of death of the deceased.

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 CHAPTER - IX

EVIDENCE IN INQUIRIES

Mode of taking and recording evidence:

9.1 Section 273 of the Code lays down that all evidence in the course of the
trials or inquiry, or other proceeding should be taken in the presence of the accused or
where his personal attendance is dispensed with, in the presence of his pleader. The
term accused includes a person in relation to whom any proceeding under Chapter VIII
has been commenced under this Code. A contravention of the provisions of this section
vitiates the trial or the inquiry. In counter cases or cases which are intimately connected
with each other, a court has no right to consider the evidence given in one case for the
purpose of reaching its conclusion in the other. The two cases shall have to be tried
separately and determined on the basis of the evidence. recorded in each of them.
However, where more than one similar case is consolidated proceeding can be used for
the disposal of all the cases which are consolidated.

9.2 Section 274 states that in all summons cases and in all inquiries under
Sec. 145 to 148 and in all proceedings under Sec. 446 the Magistrate shall, as the
examination of' each witness proceeds, make a memorandum of the . substance of the
evidence in the language of the court. If the Magistrate is unable to make such a
memorandum himself he shall after recording the reasons for his inability, cause such
memorandum to be made in writing or from his dictation in open Court. Such
memorandum shall have to be signed by the Magistrate and it forms part of the record.
Sec. 274 thus makes it clear that the evidence of each witness need not be recorded
verbatim and it is sufficient if the substance of such evidence is recorded as the
examination of each witness proceeds. The memorandum of the substance of the
evidence given shall have to be full. If it is inadequate or vague, the procedure followed
will be unsustainable. The memorandum made under this section need not be read over
to the witnesses, because it is not the evidence in the words of the witness. Such
memorandum recorded by a Magistrate can be used by his successors (Sec.336).

9.3 Whenever any evidence is given in a language not understood by the accused
and if he is present in the court in person, such evidence shall have to be interpreted to

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him in open court in a language understood by him. If the accused appears by a pleader
and if the evidence is given in a language other than the language of the court and not
understood by the pleader, it shall have to be interpreted to such pleader in that
language. When the documents are put for the formal proof, it is within the discretion of
the court to interpret as much thereof as appears to be necessary (Sec. 279).

9.4 Section 280 of the Code empowers the Magistrate who has recorded the
evidence of the witness to record such remarks as he thinks material, respecting the
demeanour of such witness whilst under examination. Indeed, unsatisfactory demeanour
is material, but does not always assure indication of falsehood. Similarly good or
satisfactory demeanour is not always a real test of truth. The attestation of a Magistrate
that at the time of the deposition of certain witness, he was in such a weak state of mind
that the Magistrate was unable to proceed with the examination and that the witness
could not answer more than two questions is proof. of unsatisfactory demeanour. Under
this section, a Magistrate is not authorised to record any remarks about the credibility of
the witness until the whole evidence is taken.

9.5 Sub-sec. 2 of Sec. 281 provides that whenever an accused is examined by

any magistrate, other than the Metropolitan Magistrate, or by a Court of Session, the
whole of such examination including every question put to him and every answer given
by him shall have to be recorded in full by the Magistrate himself or where. he is unable
to do so owing to physical disability or other incapacity" it shall have to be recorded
under his dictation and superintendence by an officer of the court appointed by him in
this behalf. The record must be in the language in which the accused is examined or if
that is not practicable in the language of the court {(Sec. 281 (3)). The record must be
read over to the accused or if he does not understand the language in which it is written,
it must be' interpreted to him in the language he understands and he should be at liberty
to explain or add to his answer { Sec. 281 (4)}. It shall thereafter be signed by the
accused and the Magistrate shall have to certify, under his own hand, that the
examination was taken in his presence and hearing, and that the record contains full and
true account of the statement made by the accused { Sec.281 (5)}.

9.6 The provisions contained in Sec. 281 regarding the record of examination of
the accused is applicable to the various proceedings held by the Executive Magistrates,
unless it is expressly provided otherwise in the Code.

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Duty of Interpreter

9.7 An interpreter is bound to state the true interpretation of such evidence

or statement made before the Court. (Sec. 282).

General Provisions as to Inquiries and Trials:

9.8 A person accused of an offence before the Criminal Court or a person against
whom proceedings are initiated before a Magistrate has a right to be defended by a
pleader of his choice (Sec.303). From this it follows that notice of the date fixed for
hearing shall have to be given to the accused person who is being proceeded against,
so that he may make arrangements for his defence by a pleader of his choice. Full
opportunity shall have to be given to the said person to get proper legal advice and
assistance before he is called upon to participate in the proceedings. He is entitled for
proper and reasonable opportunity for engaging a Pleader of his choice and for that
purpose he may seek adjournments. Inquiries should be, as a rule, held during the
court hours. Any departure from this rule is highly objectionable and can be justified
only on exceptional grounds. The counsel appointed to defend the accused or person
proceeded against must be given sufficient time to consult him and prepare the case for
his defence. The right to be defended necessarily includes the right to advance
arguments. The court is therefore bound to hear arguments offered at any criminal trial
or proceeding. It is the duty of the Presiding Officer to take such notice of such
arguments as he thinks fit when they are being submitted. Written arguments may also
be admitted. Discretionary power under this section should be invoked for the ends of
justice. An inquiry or trial comes to an end when the judgement/order is pronounced
and until then the Court has power to act under this Section. In order to afford proper
opportunity to the parties the court should inform before hand the names of the
witnesses intended to be examined under this section.

Documents:

9.9 By virtue of the provisions contained in Sec.91, Sec. 254 (2) and 243 (2)
parties are entitled to produce documents. It is the duty of the Court under Sec.311 of
the Code read with Sec. 165 of the Evidence Act to have an essential document
admitted in evidence by recalling any witness at any stage of the trial. A witness under

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this Section is examined at the instance of the Court and as such is liable to be cross-
examined by both the parties.

Expenses:

9.10 Sec. 312 provides for the expenses of complainants and witnesses. A
criminal court has got power under this Section to order for payment of the reasonable
expenses of any complainant or witness attending the court for the purpose of any
inquiry or trial or other proceedings under this Code. The Section applies even to
proceedings under Chapters VIII and X of the Code.

Arguments:

9.11 Under Sec.314 of the Code any party to a proceeding may after the close of his
evidence, address concise oral argument and may submit a memorandum to the court
setting forth the oral enquiries on the spot as to the truth of the matter in dispute. The
Section also requires that the Magistrate shall, without unnecessary delay, record a
memorandum of relevant facts observed by him at the time of inspection and it shall
form part of the record. The parties are entitled to have copies of such memorandum.
The parties are at liberty to qualify or contradict the same by an application for further
inspection or by adducing evidence and submitting arguments.

Examination of Witness:

9.12 Sec. 311 empowers the Magistrate to summon material witness or to

examine persons present in court. This Section consists of two parts. The first part of the
Section gives the discretion to the court to summon any person or witness, or examine
any person in attendance, though not summoned as a witness or to recall and re-
examine any person already examined. The second part imposes an obligation on the
court to summon and examine or to recall or re-examine any such person if his evidence
appears to be essential to the just decision of the case. The clause is intended to meet
such cases where on account of exceptional gaps it becomes necessary and desirable
to call for additional evidence. The object of the Section is to enable the Court to get at
the truth and to come to a proper conclusion in the matter under enquiry. The. Section is
not limited to witnesses whom the court examines on its own behalf but also applies to
witnesses for the prosecution or the defence.

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Adjournments:

9.13 Section 309 provides for the postponement or adjournment of the

proceedings. The adjournment shall have to be from time to time and it shall have to be
for such time as the court considers reasonable. As a general rule, Magistrate should
refrain from granting adjournment save in cases where they are clearly necessitated for
the purpose of rendering justice. Magistrates will have to assign reasons while
adjourning the cases. There is no rule which requires that a criminal proceeding should
be stayed pending decisions of similar issues in a civil suit. The matter is however, left to
the discretion of the court which should be exercised keeping in view the facts and
circumstances of the case. The principle in such cases is to examine whether the
accused or the person proceeded against is likely to be prejudiced if the criminal
proceedings are not stayed. No adjournment shall be granted for the purpose only to
enable the accused to show cause against the sentence proposed to be imposed on
him.

Local Inspection:

9.14 Section 310 provides that at any stage of any inquiry or trial, or other
proceedings the Magistrate after due notice to the parties may visit and inspect any
place which in his opinion is necessary for proper appreciation of evidence adduced by
the parties-. It is necessary to give notice of the local inspection to the parties. The
Magistrate, however, cannot make use of this section to find out for himself the facts of
the case, or to create new evidence in the case. A local inspection under this Section
should be held sparingly, and when doing so, the Magistrate should avoid making
arguments. A copy should be furnished to the opposite side. Under Sec. 315 (2) a
person against whom proceedings are instituted under Section 98,107, 108, 109, 110 or
Chapter IX or under Chapter X (8), (C) or (0) may examine himself as a witness in the
proceedings.

Court to be open:

9.15 Under Sec. 327 of the Code the place in which any Criminal court is held for
the purpose of any inquiry is deemed to be an open court, to which the public generally
may have access so far as the same can conveniently contain them. The proviso to the

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Section provides that in a particular case the Magistrate may order that the public
generally, or any particular person shall not have access.

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 CHAPTER - X

JUDGMENTS

10.1 Order under Secs. 117, 138(2) and final orders under Secs. 145, 147 though
not judgment in trials have been equated with the judgment by an express provisions
made in Sub-sec. (6) of Sec. 354 in so far as the contents are concerned. Every order
shall contain the point or points for determination, the decision thereon and reasons for
the decision.

10.2 The following principles shall have to be kept in view while passing final
orders:

(i) It shall have to be ordinarily pronounced in an open court immediately

after the termination of the proceedings.

(ii) If it is not pronounced on the same day of the recording of the evidence
and hearing of the arguments, due notice shall have to be given to the
parties or the pleader of the date of the final orders.

(iii) The whole of the final order shall have to be delivered.

(iv) The whole of the final order shall have to be read over as far as possible.

(v) The operative part of the final order shall have to be read out and
explained in the language which is understood by the respondents or
their pleader.

(vi) The final order must be dated and signed by the Magistrate at the time of
pronouncing the same in the open court. Each page of the order requires
to be initialled and dated.

10.3 Since it is obligatory on the part of the Magistrate, to assign reasons for their
decisions they have to appreciate the evidence on record in the context of the provisions
relevant for the case, In considering the effect of evidence adduced, regard should be

123
had only to the quality and weight of the evidence and not to the number of witness
examined. The court must shift the evidence and come to its own conclusion. The
testimony of the witness should be judged on its merits and the court should not draw an
adverse inference for the reasons of his being a Government Servant or in the
employment of the police.

10.4 The judgment or the final order in a criminal case must contain a fullfledged
discussion of the evidence, oral and documentary. It should contain findings on all the
ingredients required to make out the charge levelled against the respondent. In weighing
the evidence the court should take into account the defence taken and should express
opinion on it. It would not be sufficient merely to say that the prosecution has proved its
case beyond all reasonable doubt. Similarly it is not sufficient merely to reproduce the
evidence of all the witnesses on record and say that court believes the same. The court
must select such important evidence as it considers necessary to support a decision on
particular points arising for consideration. Where there are several respondents, the
judgment should analyse the evidence against each of them separately.

10.5 A judgment should not contain any damaging remarks against the character
of person, who are neither parties nor witnesses before the court and who therefore
have no occasion to defend themselves against such remarks. While the courts are at
liberty to discuss the conduct of the persons before them, either as parties or witnesses,
without any fear or favour, they are none the less not permitted to travel beyond the
record and are bound to exercise due restraint on the language employed by them.
Remarks and observations which are absolutely not called for or which are not justifiable
on the evidence on record or on the facts of the case or which are not necessary in the
disposal of the case or which are sweeping and general in nature must always be
avoided. Similarly unfounded remarks against the conduct of the counsel of any party
should not be passed. A judgment should not contain any remarks calculated to throw
doubt on the . conclusion which it embodies. The operative portion of the order shall
have to be concise, specific and clear. The orders passed under Sections 117, 138(2),
145 and 147 must be self contained. They must show that the court has considered the
evidence against each of the persons and has found that the evidence proves the case
against each of them individually.

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10.6 No court shall alter or review the judgment or the final order disposing of the
case once it has signed the same except to correct a clerical or arithmetical error, unless
other wise provided (Sec.362).

10.7 An order dropping the proceedings under Sec. 107 on the ground that there
no longer exists any danger of. breach of the peace, is a final order, and it cannot be
reviewed or reconsidered by the very court. Where the order is neither "judgment" nor "a
final order", there is nothing in law preventing the court which passed it, from
reconsidering it or from entertaining fresh application for the same relief asked for in the
proceeding in which the order was made. It is thus obvious that interlocutory orders can
be modified suo moto or on a move being made by any party. A judgment or a final order
becomes final only after it is pronounced and signed. The courts have power to alter or
vary the same before it is pronounced and signed.

10.8 Section 363 provides that a copy of the judgment should be given to the
accused or other persons. When a final order is made under Sec. 117, and if the
respondent is sent to jail for the non-production of surety, copy of the final order shall
have to be given to the respondent free of cost. In a case where the respondent is not
sent to jail and if he makes an application, the court shall have to give a certified copy of
the final order or if he so desires translation in his own language if practicable or in the
language of the court. The certified copy shall have to be given without delay and if the
judgment or the final order is appealable it shall have to be given free of cost. Any
person affected by judgment or a final order passed by a Criminal Court and whose case
does not fall under Sub-sec. (2) may on application to the court and on payment of
necessary charges obtain a copy of the judgment or final order or of any deposition or
other part of the record. However, the court has the discretion to give the same to him
free of cost if it thinks fit for some special reasons.

10.9 Under Sec. 363 the original or the final order shall have to be filed with the
record of proceedings and where the original is recorded in a language different from
that of the court and if the accused so requires, a translation thereof in the language of
the court shall have to be added to such record.

10.10 The Courts of the Sessions Judge, and Chief Judicial Magistrate shall have to
send copies of its findings and sentences if any, passed in the trials conducted by them
to the District Magistrate within whose local jurisdiction the trial was held. The purpose of

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sending the copy of the judgment is to enable the District Magistrate to be posted with
information about serious offences committed within his jurisdiction (Sec.365).

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 CHAPTER - XI

APPEALS AND REVISIONS

11.1 Appeal is the right of carrying a particular case from an inferior to a superior
Court to ascertain whether the judgement or order is sustainable. An appeal lies only
where it is expressly provided by law.

11.2 Sec 373 provides that any person who has been ordered under Sec. 117 to
give security for keeping the peace or for good behaviour or who is aggrieved by an
order refusing to accept or rejecting a surety under Sec.121 may appeal against such
order to the Court of Sessions. This does not however apply where proceedings are laid
before a Sessions Judge in accordance with the provision of . Sub-sec.(2) of Sec.122.

11.3 Every appeal shall be made in the form of a petition in writing presented by
the appellant or his pleader and it shall be accompanied by a copy of the judgment or
order appealed against (Sec.382). If the appellant is in jail he may present his petition of
appeal and the copies accompanying the same to the officer-in-charge of the jail, who
shall thereupon forward such petition and copies to the proper appellate court (Sec.
383). Section 385 and 386 deal with the procedure for hearing appeals and the powers
of the appellate court.

11.4 Under Section 395 a provision is made to refer a case to a High Court when
it involves any question as to the validity of any Act or Ordinance or regulation or of the
kind.

11.5 The explanation to Sub-sec. (1) of Sec. 397 shows that all the Executive
Magistrates also are deemed to be subordinate to the Sessions Judge for the purposes
of Sections 397 and 398. Section 397 (1) thus provides for revision in a case disposed of
even by an Executive Magistrate. The Sessions Judge may do so for the purpose of
satisfying himself as to the correctness, legality or propriety of any finding, sentence or
order recorded or passed by such Executive Magistrate. The Sessions Judge may also
call for records of any Executive Magistrate to satisfy himself as to the regularity of any
proceedings of such court. Under this section, the High Court and the Court of Sessions

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have concurrent jurisdiction, but once one of the courts is moved by a revision petition,
there is a bar to move the other court for the same purpose. Sec.399 deals with the
powers of the Sessions Judge in revision. The section provides that (1) the Sessions
Judge may exercise all or any of the powers exercisable by the High Court on revision
under Sec. 401 (1) and (2); the order of the Sessions judge has been made final and no
further revision by the High Court is permissible. Sec. 401 deals with the scope of the
power of the High Court in revision.

11.6 Section 411 empowers any District Magistrate or the Sub-Divisional

Magistrate to make over for disposal of any proceeding which has been started before
him to any Magistrate subordinate to him. It further provides that any District Magistrate
or Sub-Divisional Magistrate may withdraw any case or recall any case which he has
made over to any Magistrate subordinate to him and dispose off such proceeding
himself or refer it for disposal to any other Magistrate. Transfers may be made by the
courts" under this Section "suo-moto" or on the motion of a party. If the transfer is sought
on the ground of reasonable apprehension of not having a fair trail, the principles laid
down under Sec. 407 of the Code would apply. Under this section, the District Magistrate
and the Sub- Divisional Magistrate have concurrent jurisdiction for withdrawal and
Divisional Magistrate transfer of cases. Sec. 412 states that when a Magistrate makes
an order under Sec.411 he shall have to record his reasons for making it.

11.7 Sec. 421 deals with levy of fine. If any occasion arises wherein the Executive
Magistrate would be required to levy any amount as fine, the provisions laid down in
Sec. 321 shall have to be followed. The amount of fine can be recovered by issue of a
warrant of attachment or sale of any movable property belonging to the offender. The
amount can also be recovered by issue of a warrant to the Deputy Commissioner of the
District, authorising him to realise the amount as arrears of Land Revenue from movable
or immovable property or both of the defaulter. Sub-sec. (3) of Sec.421 provides that
upon receipt of warrant for the realisation of the amount the Deputy Commissioner shall
realise the same in accordance with law relating to the recovery of arrears of land
Revenue. Sec. 422 states that when a warrant is endorsed by a District Magistrate within
whose local jurisdiction any property is found, it can be executed even beyond the
"jurisdiction of the court which issued it. Section 423 further makes a provisions for the
execution of a warrant for levy of fine issued by a court in a territory to which this code
does not extend.

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11.8 Under Sec. 478 of the Code if the Legislative Assembly of a State, by a
resolution, so permits the state Government may after consultation with the High Court,
by a notification direct that references in Sec;. 108,109, 110,145 and 147 to an
Executive Magistrate shall be construed as references to a Judicial Magistrate of the
First Class.

11.9 Sec. 479 makes it obligatory for a Judge or Magistrate not to try or hear any
case or appeal in which he is personally interested or in which he is a party. The
explanation to Sec. 479 makes it clear that a Magistrate shall not be deemed to be a
party or person interested in any case if he is concerned in his public capacity or if he
has viewed the place or if he has made any enquiry in connection with the case.

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 CHAPTER - XII

BAILS AND BONDS

12.1 Sec. 436 (1) Cr.P.C. lays down that when any person other than a person
accused of a non-bailable offence is arrested or detained without warrant by any officer
in charge of a police station or appears or is produced before any court and if he is
prepared to give bail, he shall have to be released on bail. The Police Officer or the court
has a discretion to release the person on his executing the bond without surety. It may
be noted that there is an exception provided in Sec. 436 (1) to the effect that provisions
of Sec. 116 (3) are not affected by the said Section. The amount of every bond executed
under this Chapter shall have to be fixed with due regard to the circumstances of the
case and shall not be excessive (Sec. 440).

Bonds:

12.2 Sec. 441 deals with the manner in which the police or the court shall take
personal cognizance of the bail bonds under Sub-sec. (2) of Sec. 441, if it has been
made clear that where any condition is imposed for the release of any person on bail,
the bond shall contain such condition. If the case so requires the court can take a bond
and bind the person released so that he shall appear before any other court also to
answer the charge. Under Sub-sec. (4) of Sec. 441, the officer of the court may accept
affidavits in proof of facts contained in them, relating to the sufficiency or fitness of the
sureties and the officer or the court may hold an inquiry or cause an inquiry to be held in
that connection.

Discharge from Custody:

12.3 Sec. 442 (1) provides that as soon as the bond has been executed the
person for whose appearance i~ has been executed shall be released, and when he is in
jail, the court admitting him to bail shall issue an order of release to the officer in charge
of the jail and such officer on receipt of the orders shall release him. If the accused
person is required for some other case or matter, he can still be detained
notwithstanding grant of bail in one case [Sec. 442 (2)].

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12.4 A provision is made under Sec. 444 for any surety to apply to the Magistrate at
any time to discharge the bond. On such application the Magistrate shall issue a warrant
of arrest directing that the person so released be brought before him. Sub-sec. (3)
provides that on the appearance of such person the Magistrate shall direct the bond to
be discharged either wholly or so far as it relates to the applicant and shall call upon the
person to find other sufficient sureties and if he fails to do so, commit him to jail.

Cash Security:

12.5 The Courts or officers have the discretion to permit the person who is
required to execute a bond to deposit a sum of money or Government Promissory Notes
of such amount as they deem fit in lieu of executing such bond. This provision is not
attracted when a person is called upon to execute a bond for his good behaviour (Sec.
445).

Forfeiture of Bond:

12.6 The procedure for forfeiture of the bond is contained in Sec. 446 of the Code.
If it is proved to the satisfaction of the Court that the bond has been forfeited, the court
shall have to record the grounds of such proof and may call upon the person bound by
such a bond to pay the penalty thereafter or to show cause as to why it should not be
paid. Under Sub-sec. (2) of Sec. 446, it is provided that if sufficient cause is not shown
and the penalty is not paid, the court may proceed to recover the same as if it is a fine
imposed by it. Where such penalty is not paid and cannot be recovered in the manner
aforesaid, the person so bound as surety shall be liable to imprisonment in Civil Jail for a
term which may extend to six months, by an order of the Court ordering the recovery of
the penalty. Sub-sec. (3) gives some discretion to the court to remit any portion of the
penalty and enforce payment in part only. Sub-sec. (4) provides that where a surety to a
bond dies before the bond is forfeited he shall have to be discharged from all liabilities in
respect of the bond. Where any person has furnished surety under Sec. 106 or 117 or
360 and he is convicted of an offence, the commission of which constitutes a breach of
the condition of his bond, a certified copy of the judgment of the court by which he is
convicted can be used as evidence in proceedings under this Section against sureties. A
provision has been made under Sub-sec. (5) that such judgment. shall be accepted to

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prove that the person concerned has committed the breach of the bond unless the
contrary is proved.

Cancellation of Bonds;

12.7 Section 446-A provides that without prejudice to the provisions of Sec. 446,
where a bond has been executed for the appearance of a person, and the same is
forfeited for breach of a condition, then the bond executed by such person and the
bonds by one or more of his sureties shall stand cancelled. When once the bond stands
cancelled, such person shall not be released, unless the Police officer or the Court, as
the case may be, for appearance before whom the bond was executed is satisfied that
there is sufficient cause for the breach of condition of the bond. Provided, a person can
be released in that case upon the execution of a fresh bond for such sum of money and
bond by one or more sureties, as the Police Officer or the Court, as the case may be,
thinks sufficient.

Death or Insolvency of Surety:

12.8 Sec. 447 provides that when any surety becomes "insolvent" or "dies", the
Court or the Magistrate will treat such surety bond as a nullity and may demand fresh
security in accordance with the directions of the original order. The expression "becomes
insolvent" is equivalent to "is adjudicated an insolvent". If the person does not furnish
fresh surety the court may proceed as if there has been a default in complying with the
original order. If the person required by any court or officer executing the bond is a minor
such officer or court may accept a bond executed by a surety or sureties only without
taking any bond from the minor.

Appeal:

12.9 Sec. 449 provides for appeal from the orders passed by the Magistrate under
Sec. 446 to the Sessions Judge.

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 CHAPTER – XIII

PROVISIONS RELATING TO INITIATION OF

CONTEMPT PROCEEDINGS AND OFFENCES
AFFECTING ADMINISTRATION OF JUSTICE

(a) PROSECUTION FOR CONTEMPT OF LA WFUL AUTHORITY OF PUBLIC

SERVANTS FOR OFFENCES AGAINST PUBLIC JUSTICE AND FOR OFFENCES
RELATlNG TO DOCUMENTS GIVEN IN EVIDENCE

13.1 Chapter XIV of the Code of Criminal Procedure deals with the 'conditions'
requisite for initiation of contempt proceedings. The provisions contained in Sections
195, 196, 197 and 199 are relevant. Under Sec. 195 prosecutions can be launched for
contempt of lawful authority of public servant" for offences against public justice and
offences relating to documents given in evidence. If any person commits any offence
under any of the Sees. 172 to 188 of the I.P.C. (Offences relating to contempt of the
lawful authority of public servants) or abets or attempts to commit any such offence or of
criminal conspiracy to commit such offence, cognizance of the same will not be taken by
any court except on the complaint in writing of the public servant concerned or of some
other public servant to whom he is administratively subordinate [Sec. 195 (1) (a)].

13.2 Under Section 195 (1) (b) (i) when any offence is committed under any of the
sec. 193 to 196 (both inclusive), 199,200,205 to 211 (both inclusive) of the Indian Penal
Code or (ii) when such offence is alleged to have been committed in relation to any
proceeding in any court or when any offence described in sec. 463 or punishable under
sec. 471, sec.475 or sec. 476 of the Indian Penal Code is alleged to have been
committed in respect of a document produced in court or (iii) of criminal conspiracy to
commit or attempt to commit or the abetment of any offence specified in clause (i) or (ii)
above, prosecution can be initiated only on a complaint in writing from that court or by
some other court to which that court is subordinate. According to Section 195(3) the term
"Court" in Section 195 (1) (b) means a Civil, Revenue, or Criminal Court and includes a

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tribunal constituted by/or under Central, Provincial or State Act if declared by that Act to
be a court for the purpose of this section.

Prosecution of Judges and Public Servants:

13.3 The object of Section 197 is to prevent improper or reckless prosecution

by private persons for offences in connection with the administration of public justice and
also relating to the contempt of lawful authority of a public servant. Under this Section
there is a bar on complaints by all and sundry, whereas Sec. 340 confers exclusive
jurisdiction on a court to file a complaint on due satisfaction that there is a case 'prima
facie' against the accused. Sec. 195 and 340 of the Code shall have to be read together.
The complaint to be filed under clause (a) of Subsec. (1) of Sec. 195 is public duty and
hence the successor in office of the public servant concerned can also make a complaint
under this Section.

13.4 Under Section 196 of the Code, prosecution for offences against the State
and in certain cases of criminal conspiracy to commit such offences can be initiated only
with the previous sanction of the Central Government or the State Government or the
District Magistrate.

13.5 It is under Sec. 197 that there is a protection for Judges and public servants
not removable from office except with the sanction of the concerned Government against
prosecutions for offences alleged to have been committed while acting or purporting to
act in the discharge of their official duty. Sec. 197 states that no court shall take
cognizance of any such offence except with the previous sanction of the Central
Government or the State Government as the case may be.

13.6 Under Sec. 199 a special provision is made to the effect that when any
offence falling under Sec. 110 of the I.P .C. relating to defamation, is alleged to have
been committed against persons such as the President, Vice-President, Governor,
Minister or any other public servant employed in connection with the affairs of the
Government in respect of his conduct in the discharge of the public functions, a court of
Sessions can take cognizance of the offence upon a complaint by the Public Prosecutor.

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(b) OFFENCES AFFECTING THE ADMINISTRATION OF JUSTICE:

13.7 Sec. 340 gives the procedure to be followed in cases mentioned in Sec. 195 of
the Code. If the Court is of the opinion that it is expedient in the interest of justice that an
inquiry should be made into any offence referred to in clause (b) of Sub-sec. (1) of Sec.
195, the Court may hold a preliminary inquiry under this section and (a) record a finding
to the effect that offence appears to have been committed in relation to a proceeding in
that court in respect of a document produced or given in evidence; (b) make a complaint
thereof in writing, (c) send it to a Magistrate having jurisdiction; (d) take sufficient
security for the appearance of the accused before such Magistrate, and (e) bind over
any person to appear and give evidence before such Magistrate.

13.8 Under this Section the court gets jurisdiction to enquire and make a
complaint only where offence appears to have been committed' in or in relation to any
proceeding in that Court. The court can take action under this Section either "Suo-moto"
or on application made to it by a private person. A court has to decide under this Section
whether an offence referred to Sec. 195 (1) (b) appears to have been committed in or in
relation to any proceedings in a court as defined in Sub-sec. (3) of Sec.195 and
secondly whether it is expedient in the interest of justice that it should further be inquired
into. Under this Section, the Court is bound to hold a preliminary enquiry and follow the
procedure as shown above. Though it is not necessary for the court to issue a notice to
the person alleged to have committed the offence, it is desirable and expedient to give
notice to him and hold an inquiry. The question whether it is expedient in the interest of
justice that an inquiry should be made in respect of the offence alleged to have been
committed or not depends upon the facts and circumstances of each case. The Court
should see that the prosecution is undertaken in the interest of justice and not to satisfy
any private grudge of a litigant. The court proceeding under this Section should record a
finding that the offence alleged appears to have been committed and that it is expedient
in the interest of justice that an enquiry should be made into the offence.

13.9 A complaint under this Section should be carefully drawn up and the conditions
laid down in the section should be clearly followed. It should set forth the offence
complained of, the precise facts on which it is based and the evidence available for
proving it. It should also show the court before which, and the time and occasion on
which the offence is alleged to have been committed. In the case of a complaint the

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particulars and statements alleged to be false must be specifically set out. In the case of
forgery the particular documents or the portion of the document alleged to be forged
must be precisely mentioned. The provision regarding summary procedure for trial for
giving false evidence contained in Sec. 344 of the Code does not apply to the
proceedings before. the Executive Magistrates.

13.10 Sec. 345 deals with the procedure in certain cases of contempt. The section
deals with the subject as to what is the procedure for the contempt of court committed in
the presence of any court and empowers all courts to punish an offender summarily in
respect of the offences mentioned therein. It is however optional to the court to proceed
either under this Section or under Sec. 340. Apart from the power given under this
Section, the courts have no other power, to commit to prison for contempt of the court for
the failure to carry out its orders. Contempt of Court such as by the publication of
comments calculated to obstruct the due administration of justice, or to create a
substantial prejudice against the parties, or to scandalise the court, do not fall within the
ambit of this Section. The powers to punish a person committing such contempt can be
exercised only by the High Court under the power vested in it, under the provisions of
the Contempt of Courts Act. The procedure under 'this section is summary. It involves
the consideration of the sufficiency of what took place in the presence of the court to
constitute a punishable offence after hearing the statements of the offender. In the case
of an offence committed in the presence of the Court, the court may either sentence the
offender itself or discharge him upon his making an apology under Sec. 348. If the court
considers that the case should not be dealt with under this section it may forward the
case to a competent court under Sec. 346. This section deals with certain cases of
criminal contempt. A criminal contempt consists in words or acts of obstructing, or
tending to obstruct the administration of justice. The offences mentioned under this
section must be those committed in the view or presence of the court and when so
committed should be taken cognizance of on the same day. Every Civil, or Revenue or
Criminal Court in view or presence of which any of the offences mentioned in the
Section is committed has got jurisdiction to take cognizance of the offence and try
summarily. The procedure laid down in this section should be followed strictly. The
provisions should be applied then and there, at any rate before the court rises for the
day. Where an offence mentioned in this Section is committed the Magistrate may direct
the detention of the accused in custody. In all criminal cases it is necessary that there
should be a charge a finding and conviction as a foundation for the sentence. No person

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should be punished for the contempt of court unless the specific offence charged against
him is distinctly stated and an opportunity of answering it is given to him.

13.11 In every case, when the court takes cognizance for an offence shown in Sec.
345(1) it must make record of:

(1) the facts constituting the offence;

(2) statement (if any) made by the offender; and

(3) the finding and sentence.

Where the offender is punished for an offence under Sec. 228 of the I.P
.C. the record must show:

(i) the nature and stage of the judicial proceedings:

(ii) the nature of the interruption or insult.

Before sentencing an offender the court should give him an opportunity of

giving reasons against summary measures being taken against him and after explaining
and possibly correcting a misapprehension as to what had been, in fact, said or meant.
Form of warrant of commitment under this section shall be in Form 38 of the Second
Schedule to the Code.

13.12 If the Court considers that a person accused of an offence referred to in Sec.
345 should be imprisoned or that he should be fined to an amount exceeding Rs. 200/-, it
may record the facts constituting the offence and also record the statement of the
accused before proceeding under this Section and may forward the same to a
Magistrate having jurisdiction to try the same. Further, the Court may require security to
be given for the appearance of such person before such Magistrate, or if such security is
not given shall forward such person in custody of such Magistrate [Sec. 346 (1)]. Sub-
sec.(2) of Sec. 346 states that the Magistrate to whom any case is forwarded under Sub-
sec. (1) shall deal with it as if, it is a case instituted on a police report.

13.13 Where a court chooses to take action under Section 346, instead of taking any
action under Sec. 345, in respect of an offender mentioned in the later section, it must
give reasons for not taking cognizance of the offence under Sec.345.

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13.14 Section 348 provides that if an apology is made to its satisfaction by the
adjudged offender under Sec. 345 or an offender against whom a complaint is sent
under Sec. 346, the court may discharge the offender or remit the punishment.

13.15 Section 349 empowers a Magistrate to commit a person to the custody of an

office of the Court for a term not exceeding 7 days, if the witness or the person called
upon to produce a document or a thing before the court refuses to answer such
questions put to him or refuses to produce any documents or thing in his possession or
power. If the person persists in his refusal he shall have to be dealt with according to
Sees. 345 and 346 of the Code.

13.16 Section 350 provides for summary procedure for punishment for non
attendance by a witness in obedience to summons. Before taking cognizance under
section 350 of the Code, an opportunity shall have to be given to the person to show
cause as to why he should not be punished under this Section. After considering the
cause shown by the person if the court is satisfied that it is expedient in the interest of
justice that such a witness should be tried summarily for his non-attendance, the court
may try summarily and sentence him to a fine not exceeding RS.100.

13.17 Sec. 352 provides that except as provided in Secs. 344, 345, 349 and 359
no judge of a Criminal Court other than a Judge of a High Court or Magistrate shall try
any person for any offence. referred to in section 195, when such offence is committed
before himself or in contempt of his authority, or is brought under his notice as such
Judge or Magistrate in the course of a judicial proceeding.

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 CHAPTER - XIV

DYING DECLARATION

Admissible in evidence:

14.1 A dying declaration is a statement made by a person as to the cause of his

death or as to any of the circumstances of the transaction, which resulted in his death. It
is admissible in evidence under Clause (1) of Sec. 32 of Indian Evidence Act in cases in
which the cause of that person's death comes into question. Such a statement is
relevant whether the person who made it was or was not at the time when it was made,
under expectation of death.

Who can record:

14.2 There is no hard and fast rule that a dying declaration should be recorded by
a competent Magistrate alone. It can be recorded by any Magistrate, Medical Officer or
under special circumstances by Police Officers.

14.3 Since a dying declaration which is free from doubt can be the sole basis of
conviction, it is the bounden duty of the investigating officer to request a competent
Magistrate to record the dying declaration of the victim. Such dying declaration recorded
by a Magistrate forms a part of the record of investigation.

Certificate of fitness from the Doctor essential

It is no doubt true that though there is no certificate of fitness, if any corroborative

piece of evidence is available, even such evidence can be acted upon. In the present
case as already mentioned that none of the witnesses have spoken regarding cause of
death of the deceased Shanthi when the Doctor has not certified the fitness of the
deceased Shanthi while recording her statement. It can not be constructed as one of
dying declaration. [M. Raju Vs. The state of Karnataka, ILR 2001 Kar. 5600 (Para 18].
(Sri. A Vasanth Kumar Vs. State of Karnataka, [ Criminal Appeal No. 890 of 1997,
dated 14.7.2003] 2003 (4) KCCR SN 29; ILR 2003 (3) Kar 3452; 2003 (5) KLJ 505)

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Held : We have the Dying Declaration. However the judicial dying declaration does not
inspire confidence in the Court since the deceased suffered 95% burns and must have
been in a state of shock and under sedation. No note has been appended by he Doctor
or the Taluka Executive Magistrate to the effect that the deceased was in a fit state of
mind to give a dying declaration. PWs 1, 2, 3 and 8 are independent witnesses and the
oral dying declaration given to them only refers to he persons who are inimically
disposed towards the deceased. We do not think that a conviction be based solely on
the Judicial dying declaration which contradicts the oral dying declaration. [Laxman Vs.
State of Maharastra, 2002 254 (para 35); Panchdeo Singh Vs. State of Bihar (2002) 1
SCC 577 (para 36) ; State of Mysore Vs. Hakaha and Another, 1963 (2) Mys LJ 225
(Para 45 ; state Vs. Radhamal Sangatmal Sindhi, AIR 1960 Bom 26 (Para 48) ; Boya
Polamma‟s Case, AIR 1941 Mad 225 (Para 49)]. Shantaram Dattatraye Somankar
and Others Vs. State of Karnataka, ILR 2003 (3) Kar 2838 (DB).

Dying Declaration need not necessarily be made to a Magistrate

Dying declarations – There is no requirements of law that a dying declaration

must necessarily be made to a Magistrate. Statement recorded by the head constable
of Police is admissible as dying declaration. Once the Court has come to the conclusion
that the dying declaration was the truthful version as to the circumstances of the death
and the assailants of the victim, there is no question of further corroboration. Ding
declaration need not necessarily be in question-answer from. Very often the deceased
is merely asked as to how the incident look place and the statement is recorded in a
narrative form. In fact such a statement is more natural and gives the version of the
incident as it has been perceived by the victim. (AIR 2003 SC 1074 ; 2003 (2) SCC
473)

Whole and Absolute Truth

Dying declaration – The real Parameter for admitting dying declaration is its
quality and the confidence in the Court from the record that it represent the whole and
the absolute truth.

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Mental Clarity and Fair Physical well being

The law insists on mental clarity and a fair degree of physical well being. The
only person who can certify this is a doctor. If the doctor does not issue a
contemporaneous certificate then it would be hazardous to rely on that document.
However, if the dying declaration inspires confidence in the Court and if the surrounding
circumstances support the view, the Court can base a conviction on the basis of such
dying declaration. In such a case, the absence of certificate of doctor is not fatal.

In the present case accused was charge sheeted for having put his wife ablaze.
Wife was admitted to hospital with 65% burn injuries. She was given high sedatives.
Doctor also stated that, though he certified the declaration, he was not present
throughout the recording. It was evident from record that the statement was made by
the deceased under great agony and extreme restlessness. Held, trail Court was
justified in refusing to rely upon such dying declaration and was justified in acquitting the
accused. [Kushal Rao Vs. State of Bombay, AIR 1958 SC 22 (Para 1 ; State of
Karnataka Vs. Basavaraj and Another 2002 Crl.L.J. 843 (DB) (Para 2)].
State of Karnataka by the Circle Inspector of Police, Nanjangud Vs. Shefi Ahamed,
[Criminal Appeal No. 516 of 1998, dated 18.11.2003] 2004 (1) KCCr 658 (DB).

Dying Declaration Language

14.4 It is always desirable and proper that the dying declaration should be
recorded in the very words of the victim or injured. If the person recording the
declaration, reproduces the same in the language not known to the victim and reads
over by interpreting it in the language known to him and certifies to that effect at the foot
of such declaration, that by itself is no ground for rejection. The fact that the declaration
was given in a language other than the one in which it was recorded cannot be a ground
for the rejection of the declaration.

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Procedure:

14.5 The proper procedure for recording a dying declaration would be as follows - first
the person recording the declaration must be satisfied that the declarant is in his senses.
If the declarant is not in senses, nothing should be done beyond making a note to that
effect. If the person recording the declaration is satisfied that the injured person is in his
senses, the second thing to be done is to ascertain whether the injured/victim is in a
position to speak coherently. If he is satisfied, then he may put any general questions to
elicit from the injured person/victim as to what had happened to him. It is always proper
that the questions put by the person recording the dying declaration should also be
recorded so that the court may judge the nature of the questions put. As far as possible,
leading questions should be avoided. The person recording the statement may record
what is said to him by the injured/victim. During the course of recording the statement of
the victim/injured, it is permissible to put questions if felt necessary to elucidate what is
stated by the declarant, but such questions must be recorded. What is thus recorded
may at the end be read over to the injured. Reading over the declaration to the injured
may be dispensed with if it is felt that the injured is to be removed immediately for
operation and reading over the declaration will cause delay. If the injured person is in his
senses but is not in a position to speak by mouth in a coherent way, he may be put short
questions, and his answers given by gestures may be noted. It is imperative, however, in
such cases that the gestures of the injured person signifying the answers given by him
should find an appropriate mention. This will enable the court at the trial to properly
evaluate the dying declaration. In such a case, leading questions may be permissible.
The anxiety of the person who records dying declaration should be to see that the
injured person comprehends what is asked from him and the gestures given in
pursuance of the questions put to him should be faithfully recorded and interpreted. Over
and above all this, it is necessary that the person recording the dying declaration should
see that there is no chance of prompting. of the injured/ victim person by any person
near to him and no replies should be recorded which are given on such prompting. The
possibility of prompting should be entirely excluded. This can be done by excluding from
the place where the dying declaration is recorded, the relatives of the deceased and all
other unauthorised persons.

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Dying Declaration as Evidence

Though a dying declaration is entitled to great weight, it is worthwhile to note that

the accused has no power of cross-examination. Such a power is essential for eliciting
the truth as an obligation of oath could be. This is the reason the Court also insists that
the dying declaration should be of such a nature as to inspire full confidence of the Court
in its correctness.

The court has to be on guard that the statement of deceased was not as a result
of either tutoring, or prompting or a product of imagination.

The Court must be further satisfied that the deceased was in a fit state of mind
after a clear opportunity to observe and identify the assailant. Once the Court is
satisfied that the declaration was true and voluntary, undoubtedly, it can base its
conviction without any further corroboration.

It cannot be laid down as an absolute rule of law that the dying declaration
cannot form the sole basis of conviction unless it is corroborated. The rule requiring
corroboration is merely a rule of prudence. The dying declaration is only a piece of
untested evidence and must like any other evidenceatisfy the Court that what is stated
therein is the unalloyed truth and that it is absolutely safe to act upon it. If after careful
scrutiny the Court is satisfied that it is true and free from any effort to induce the
deceased to make a false statement and if it is coherent and consistent, there shall be
no legal impediment to make it basis of conviction, even if there is no corroboration.

In present case there is no material to show that dying declaration was result of
product of imagination, tutoring or prompting. On the contrary, the same appears to
have been made by the deceased voluntarily. It is trustworthy and has credibility.
Moreovertate of mind was proved by testimony of the doctor who was present when the
dying declaration was recorded by Magistrate. In the aforesaid background it cannot be
said that there was any infirmity. Further if the person recording the dying declaration is
satisfied that the declarant is in a fit medical condition to make a dying declaration then
such dying declaration will not be invalid solely on the ground that the doctor has not
certified as to the condition of the declarant to make the dying declaration. In the instant
case contrary to what accused-appellants pleaded, the doctors‟ certificate is there.
Therefore, the Courts below have rightly relied upon the dying declaration to convict the

143
accused. (Para 15, 16,17,19) (Muthu Kutty v. State by Inspector of Police, Tamil
Nadu – AIR 2005 SC 1473)

4.6 There is no rule which requires the Medical Officer in whose presence the
dying declaration is recorded to certify that the declarant is in a fit condition to speak. It is
the person who records the dying declaration, who puts questions to the declarant to
satisfy himself that the declarant is in a fit condition to speak. The business of the
Medical Officer is only to certify that the dying declaration was recorded in his presence,
in the hospital premises, by the person who recorded it.

14.7 If the declarant is found to be dumb or is in a fit state of mind, but not in a
position to speak, and if he answers the questions by gestures, the significance of such
questions should be ascertained through proper interpretation. If they are not commonly
understandable, a certificate to that effect may be appended to the dying declaration.
Even where answers given by way of gestures are commonly understandable by the
person recording the statement, a certificate to that effect should be appended to the
declaration. Signs made by an injured person whether by a nod of the head to indicate
assent or by the sign or motion of fingers or hand in answer to the questions put to him
for finding out the identity of the Individual causing the injury amount to verbal statement
within the meaning of Sec. 32 (1) of Indian Evidence Act.

14.8 No rules have been framed in regard to the contents of the dying declaration.
A dying declaration being a statement made by a person as to the cause of his death or
as to any of. the circumstances which resulted In his death, the questions should be
limited to the cause of death and the circumstances which resulted in the death of the
deceased.

14.9 A format of the Dying Declaration is .given in the Appendix.

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144
 CHAPTER - XV

IDENTIFICATION PARADES

15.1 Whenever a witness says that he can identify an accused person or others
connected with the case under investigation, the investigating officer can arrange for
Identification Parades to be conducted by a Magistrate. Magistrates should bear in mind
that the Identification Parade should not be held as a matter of routine. It should be
conducted fairly and should be free from doubt and prejudice to the accused.

15.2 I n order to conduct a fair and free test identification, it is the duty of the
Magistrate conducting identification to observe the following precautions;

1) the suspects are not shown to the identifying witnesses before the identification
parade is completed.

2) that all unauthorised persons are removed from the place where the Identification
Parade is held.

3) the suspects are made to stand with persons of their own age, sex, height and
general appearance as far as possible.

4) the witnesses are allowed one by one into the court hall/chamber to identify the
suspects without giving room for the witnesses to communicate the general
appearance of the suspects to the witnesses who are still waiting to identify the
suspects.

5) the witnesses who have identified the suspects are not allowed to go out of the
court hall/chamber till the remaining witnesses are called in and the test
identification is completed.

6) the witnesses are prevented from seeing the photograph of the suspects.

7) every time the witness is called in to identify, the place of the suspect in the row,
is changed.

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 8) the test identification of every suspect is held separately instead of clubbing the
suspects and holding their joint identification.

9) the persons unconcerned are also changed every time a suspect is put f{)r
identification.

10) a fair proportion i.e., at least 10 outsiders for every suspect are
made to stand with the suspects.

11) the Police Officers are not allowed to be present at the place of identification test,
if objected to by the accused. Even otherwise, it is desirable not to allow the
investigation officer or the police to be present personally at the actual place of
test identification.

15.3 Any well founded objection by any accused during the identification
parade should be recorded. After the completion of the Identification Parade and
drawing up 9f the proceedings, a certificate must be appended as follows and signed by
the Magistrate conducting the parade:

(1) I, the undersigned, took all the necessary precautions and I am satisfied that no
Police Officer was present at any time of the proceedings, when the parade was
held.

(2) No opportunity was given to the witnesses to see or know about the proceedings
of the parade.

Delay in Identification Parade

Evidence Act, S.9 – Test Identification parade – Robbery – Delay in holding –

Effect – Case of train robbery – Looted currency notes recovered from possession of
accused – Eye-witnesses, traveled for almost seven hours in same compartment – Had
ample opportunity of noticing facial features of accused in light in compartment –
Accused proved to be kept “baparda” right from day of their arrest – No irregularity in
holding T.I. parade – In circumstances delay in holding parade, if any, would be of no
consequence – More so when conviction of accused based not solely on evidence of
identification by eye-witnesses but also on basis of corroborative evidence in form of

146
recoveries of looted currency notes from accused. (Lal Singh v. St. of U.P - AIR
2004 SC 299)

Purpose of Identification Parade

The whole idea of a test identification parade is that witnesses who claim to have
seen the culprists at the time of occurrence are to identify them from the midst of other
persons without any aid or any other source. The test is done to check upon their
veracity. In other words, the main object of holding an identification parade, during the
investigation stage, is to test the memory of the witnesses based upon first impression
and also to enable the prosecution to decide whether all or any of them could be cited as
eyewitnesses of the crime.
(Munshi Singh Gautham (deceased) and Others Vs. State of M.P., [Criminal Appeal
No. 919 of 1999, decided on 16.11.2004] 2004 (4) KCCR SN 487 (SC).

15.4 Identification Parade can be arranged in a jail, or Hospital, if found

necessary. The proceedings of an Identification Parade cannot be used as evidence
against accused persons unless the Magistrate who recorded it has been called as a
witness.

15.5 A specimen copy of the Identification Parade proceedings to be drawn up is

given in the Appendix.

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147
 CHAPTER - XVI

KARNATAKA POLICE ACT, 1963

DISTRICT MAGISTRATE AND THE POLICE:

16.1 Provisions contained in Sec. 16, 17 and 18 of the Karnataka Police Act 1963
deal with the relationship between the District Magistrate and the Superintendent of
Police in the matter of Administration of the Police in the District. Based on the said
provisions, instructions issued by the State Government in this behalf in their letter No.
HD 284 PEG 89 date 3-11-69 and incorporated as Order Nos. 126 to 132 of Karnataka
Police Manual (Vol. 1 ) are reproduced below for guidance of the officers:

Order No. 126:

1. The administration of the Police in a District by the Superintendent of Police shall

be subject to the general control of the District Magistrate of the District.

2. In exercising such control, the District Magistrate shall be governed by such rules
and orders as the Government may make in this behalf.

3. The maintenance unimpaired of the responsibility of the District Magistrate for the
peace and good order of his charge is of utmost importance. For this purpose, he
shall exercise general control in the Criminal Administration of his District and it is
the duty of the Superintendent of Police to assist him by keeping him fully
informed both by personal conferences and special reports, of all matters of
importance concerning the peace of District and the State of crime. The District
Magistrate shall not, however, interfere in questions of recruitment, internal
economy and organisation, nor with the administrative, disciplinary and other
details of the Force. When exercising his power of general control, the District
Magistrate shall also abstain from any action likely to weaken the authority of the
Superintendent or deprive him of his responsibility. For this purpose, the District
Magistrate shall avoid, as far as possible, the issue of executive orders to the

148
 police subordinates in his district until he has consulted the Superintendent of
Police of his District.

Order No. 127:

When the District Magistrate calls for reports on any matter referred to in
Sec. 17 of the Karnataka Police Act, 1963 (Act 4 of 1964) or on any political or religious
development or on any other matter affecting the District Criminal Administration, the
Superintendent of Police shall promptly send them. Further, when any such information
which ought to be brought to the notice of the District Magistrate is available to the
Superintendent of Police, he shall forthwith keep the District Magistrate informed by a
special report even if such report is not called for.

Order No. 128:

If the District Magistrate is not satisfied with any matter in so far as it relates
to the Criminal Administration of his District, he should first move the Deputy Inspector
General of Police in the matter endorsing a copy of his reference to the Inspector
General of Police. The Deputy Inspector. General of Police will intimate to the District
Magistrate the action taken by him. In case he considers the action taken by the Deputy
Inspector General of Police as inadequate or unsatisfactory, he may move the Inspector
General of Police, thereafter, if necessary, the Government. The Government may then
in consultation with the Inspector General of Police pass such orders as may be deemed
fit.

Order No 129:

The District Magistrate may inspect Police Stations of his District periodically
when he is touring. Such inspection should primarily be directed to the functional
aspects of the work of the police as an agency for the preservation of Law and Order
and the prevention and detection of crime and to matters of general administrative
interest, e.g., the records and check of vital statistics, the registration of arms, the
general state of crime, the proper use of the preventive sections. of the Code of Criminal
Procedure and the maintenance of records of communal disputes, if any. In particular he

149
should see that the village Police including the Police Patel are co-operating fully with
the regular police, since the administration of village Police in each district shall under
the general control and direction of the Government, be exercised by the District
Magistrate.

Order No. 130:

1. The Superintendent of Police shall send a copy of his monthly report together
with a copy of the forwarding note and abstract to the District Magistrate of the
District.

2. The Superintendent of Police shall also send him a copy of the weekly Reports of
the Assistant Superintendent of Police/Deputy Superintendent of Police in his
District together with a copy of the abstract and the forwarding note.

3. The District Magistrate shall carefully go through and scrutinize the reports more
specially the portion relating to crime, before passing them on to the Deputy
Inspector General of Police.

Order No. 131:

1. Whenever District Magistrates visit Divisional Headquarters for Coordination

Meetings, etc., they should take the opportunity of discussing general problems
regarding Law and Order and Crime with the Range Deputy Inspector General of
Police. When the matter is of urgency and importance they should arrange to
meet the Deputy Inspector General of Police individually.

2. The Deputy Inspector General of Police when visiting the Headquarters of a

District, will make it a point to see the District Magistrate.

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Order No. 132:

1. Whenever the Inspector General of Police visits the District Headquarters, the
District Magistrate shall call on the Inspector General of Police and discuss with
him problems regarding Law and Order, general state of crime, the working of
the Village police and other matters of Police Administration.

2. Whenever the District Magistrates visit Bangalore on official work it is desirable

that they should call on the Inspector General of Police and discuss with him the
Police problems in their Districts.

[NOTE: By an amendment to the Karnataka Village Defence Parties Rules 1965, the
Dalpathy of the village Defence Parties has been invested with the power and duties of
the Police Patel. The Dalapathy and the\ Village Defence Party have been brought under
the Administrative jurisdiction of the Police Department (Notification No. HD 187 PCA
74, dated 7-8-1975)]

POWER TO MAKE ORDERS FOR REGULATION OF TRAFFIC AND FOR

PRESERVATION OF ORDER IN PUBLIC PLACES, ETC.:

16.2 Sec. 31 of Karnataka Police Act confers powers on the Commissioner of Police
and the District Magistrate in areas under their respective charges or any part thereof to
make, alter or rescind orders not inconsistent with the Karnataka Police Act, .1963, for
public safety, health, maintenance of order. The matters on which order should be made
are listed out in items (a) to (z) of Sec.31. The main object of this Section is to vest in the
Commissioner of Police and the District Magistrate, power which should readily be
exercised for the regulation of the traffic and for the preservation of order in public
places.

16.3 The power of making, altering or rescinding orders under clause (a) (b), (c),
(e), (f), (g), (h), (i), G), (k), (I), (m), (n), (0), (p), (q), (r) (s) (t) & (u) of Sec. 31 (1) and in so
far as it relates to any of the aforesaid matters under the clause (z) of the said Sub-
Section is subject only to the control of the Government and previous sanction of the
Government in this behalf is necessary, However, previous sanction of the Government

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is necessary for making, altering or rescinding orders under clauses (d), (v), (w), and (y)
of Sec. 31 (1).

16.4 The power of making, altering or rescinding orders under Sec 31, shall be
subject to the condition of previous publication prescribed in Sub-sec. (6) of Sec 31.
However the provision publication of the order of alterations therein or rescission thereof
may be dispensed with if the Commissioner of Police or the District Magistrate, as the
case may be is satisfied that circumstances exist which render, it necessary that such
orders or alteration therein or rescission thereof should be brought into force at once.

16.5 Rules pertaining to licensing or controlling places of public amusement or

entertainment under Clause (w), (x) and (z) of Sub-sec. (1) of Sec. 31 of the Karnataka
Police Act 1963 based on the model draft rules communicated in Government letter NO.
HD 7 CMT 65, dated 7-11-1969 to the Commissioner of Police and District Magistrates,
have been finalised and published in the Karnataka Gazette.

POWER TO PROHIBIT CERTAIN ACTS FOR PREVENTION OF DISORDER:

16.6 Sec. 35 of the Karnataka Police Act 1963 empowers the Commissioner of
Police and the District Magistrate in the area coming under their respective charges
whenever and from such time they consider it necessary to issue prohibitory orders for
the preservation of public peace or public safety by a notification publicly promulgated or
addressed to individuals in any city, town village or place or in the vicinity of any such
city, town, village or place. The following acts could be prohibited under Sec. 35 (1).

a) The carrying of arms, cudgels, swords: spears, bludgeons, guns, knives, sticks,
or lathis, or any other article which is capable of being used for causing physical
violence.
b) The carrying of any corrosive substance or of explosives.

c) The carrying collection and preparation of stones or other missiles or instruments

of means of casting or impelling missiles.
d) The exhibition of persons or corpses or figures of effigies thereof.

e) the public utterance of cries, singing of songs, playing of music, delivery of

harangues, the use of gestures or mimetic representations, and the preparation,

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 exhibition or dissemination of pictures, symbols, placards or any other object or
thing, which may in the opinion of such authority offend against decency or morality
or affect public order or undermine the security of, or tend to overthrow the State or
incite to the commission of an offence Sec. 35 is intended to prevent acts that may
lead to the breach of peace or local clashes between certain communities, parties or
party factions. The authority making any such order under the Section must be
satisfied before making an order that immediate prevention or speedy remedy is
necessary. Sec. 35(1), like Sec. 144 of Cr.P.C. in its operation is, restricted to cases
where breach of peace is imminent or apprehended or matters which would lead to a
breach of public tranquillity by violence, riots, arson, murders, etc., Orders Under
Sec. 35 (1) are temporary orders passed during times of threatened disorder or
disturbance of public peace.

16.7 Sub-sec. (3) of Sec, 35 empowers the Commissioner of Police and the
District Magistrate in areas under their respective charges to issue orders prohibiting any
assembly or procession whenever and for so long as he considers such prohibition to be
necessary for the preservation of the public order. Under the proviso to Sub-sec. (3) of
Sec. 35, no such prohibition shall remain in force for more than fifteen days without the
sanction of Government.

16.8 Sub-sec. (4) of Sec. 35 provides that the Commissioner of Police and District
Magistrate in areas under their respective charges may, by public notice temporarily
reserve for any public purpose, any street or public place and prohibit persons from
entering the area reserved except under such conditions as may be prescribed by them.

16.9 Acts of disobedience of orders passed under Sec. 35(1) (2) & (3) or
abetting the disobedience thereof are made punishable under Sec. 108 of the Karnataka
Police Act.

Removal of persons about to commit offences:

16.10 Sec. 55 of the Karnataka Police Act provides that whenever it shall appear to the
Commissioner of Police, City of Bangalore and in any other areas to which Government
by notification has extended the provisions of Sec. 55, the District Magistrate or the Sub-
Divisional Magistrate having jurisdiction and specifically empowered by the Government,
in this behalf that:

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 (a) the movements or acts of any persons are causing or calculated to cause
alarm, danger or harm to person or property, or

(b) there are reasonable grounds for believing that such person is engaged
or is about to be engaged in the commission of an offence involving force
or violence or an offence punishable under Chapter XII, XVI or XVII of
I.P.C. or in the abetment of any such offence, and when in the opinion of
such officer witnesses are not willing to come forward to give evidence in
public against such person by reason of apprehension on their part as
regards the safety of their person or property, or

(c) an outbreak of epidemic disease is likely to result from the continued

residence of an immigrant, the said Officer may, by an order in writing
duly served on him, or by beat of drum or otherwise as he thinks fit direct
such person or immigrant so to conduct himself as shall seem necessary
in order to prevent violence and alarm or the outbreak or spread of such
disease or to remove himself outside the area of any district or districts or
any part thereof contiguous thereto by such route or within such time as
the said officer may specify and not to enter or return to the said place
from which he was directed to remove himself.

16.11 The only relevant consideration so far as Sec. 55 (a) of the Act is concerned
is whether a particular activity or movement of a person concerned causes or is
calculated to cause an alarm. The question really is of the satisfaction of the externing
authority. If the externing authority 'bonafide' comes to the conclusion that an activity or
movement of the person concerned although not within the immediate past, has in fact
caused alarm or is calculated to cause alarm, he is competent to make the order under
Sec. 55 of the Act. Reference under Clause (a) of Sec. 55 to alarm danger or harm; is a
reference to alarm, danger or harm to the public generally and not to one or two
individuals of the public. An order of externment cannot be passed under Clause (a) of
Sec. 55merely on a finding that the movement or acts of a person are causing or are
calculated to cause alarm, danger, or harm to one or two individuals in a locality.

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Removal of persons convicted of certain offences

16.12 Section 56 of the Karnataka Police Act empowers the Commissioner of Police or
the District Magistrate or any Sub-divisional Magistrate specially empowered by the
Government in this behalf to direct any person convicted at any time either before or
after the commencement of the Police Act of the following offences to remove himself
outside the area within the local limits of his jurisdiction or such area or any district or
districts or part thereof contiguous thereto by such routes and within such time as the
said officer may prescribe and not to enter or return to the places from which he was
directed to remove himself, if he has reason to believe that such person is likely to
engage himself in the commissions of the offence similar to that for which he was
convicted.

(a) of an offence under Chapter XII, XVI or XVII of the I.P.C.; or

(b) of an offence under Sec. 6 or 13 of the Mysore Mines Act, 1906; or

(c) twice of an offence under Sec. 19 of the Mysore Prohibition of Beggary

Act, 1944; or

(d) twice of an offence under the Suppression of Immoral Traffic in Women

and Girls Act, 1956; or

(e) of an offence under Sec. 86 of the Karnataka Forest Act, 1963; or

(f) twice of an offence under the Untouchability (Offences) Act, 1955; or

(g) thrice of an offence within a period of three years under Sec. 78, 79 or 80
of Karnataka Police Act; or

(h) thrice of an offence within a period of three years under Secs. 32, 34, 37
or 38A of the Karnataka Excise Act, 1965.

Explanation to Sec. 56 provides that for the purpose of this Section "an
offence similar to that for which a person was convicted" shall mean:

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 (i) in the case of a person convicted of an offence mentioned in clause (a)
an offence falling under any of the Chapters of I.P .C. mentioned in that
clause; and
(ii) in the case of person convicted of an offence mentioned in clauses (e)
and (f), an offence falling under the provisions of the Acts mentioned
respectively in the said clauses.

Period of operation of the order under Section 55 or 56

16.13 The direction made under Sec. 55 or 56 in asking a person not to enter any
particular area or such area, and any district or districts or any part thereof, contiguous
thereto shall be for such period as may be specified and shall in no case exceed a
period of two years from the date on which it was made (Sec. 57).

16.14 Before an order under Sec. 55 or 56 is passed against any person, the
Officer acting under this Section should inform the person in writing, of the general
nature of the material allegations against him and give him a reasonable opportunity of
tendering an explanation regarding them. If such person makes an application for
examination of any witnesses produced by him, the authority or the officer concerned
shall grant such applications and examine such witness, unless for reasons to be
recorded in writing, the Officer or authority is of the opinion that such application is made
for the purpose of vexation or delay. Any written statement put in by such person shall
be found with the record of the case. Such person shall be entitled to appear before the
officer proceeding under this Section by a Legal Practitioner. The authority or officer
proceeding under this section, for the purpose of securing attendance of the person
proceeded against under Section 55 or 56, may require such person to appear before
him and to furnish a security bond with or without sureties for such attendance during the
inquiry. If the person fails to furnish security bond as required or fails to appear before
the officer or authority during the inquiry, it shall be lawful to the authority or the officer to
proceed with the inquiry and pass order as was originally proposed (Section 58).

16.15 It is sufficient if the notice under Sec. 58 contains general nature of material
allegations and it need not contain particulars. At the same time it should ;not be too
general or too vague so as to render the person proceeded against not able to tender his
explanation in respect of what is lawful, against in such proceedings.

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APPEAL

16.16 Any person aggrieved by an order made under Sec. 55 or 56 may appeal to
Government within 30 days from the date of such order (Sec. 59).

16.17 According to Sec. 60, the order passed under Sec. 55 or 56 by the
Government under Sec. 59 shall not be called in question in any court except on the
ground that the authority making the order or any officer authorised by it had not
followed the procedure laid down in Sub-sec. (1) of Sec. 58 or that there was no material
before the authority concerned upon which it could have based the order or on the
ground that the said authority was not of opinion that witnesses were unwilling to come
forward to give evidence in public against the person in respect of whom an order was
made under Sec. 55.

16.18 If a person to whom the direction has been issued under Sec. 55 or 56 to
remove himself from the area (i) fails to remove himself as directed, (ii) having so
removed himself enters the area within the period specified in the order, without the
permission of the authority making the order, the authority concerned may cause him to
be arrested and remove him, in police custody, to such place outside the area as the
said authority may in each case direct (Sec. 61).

16.19 Failure to conform to any directions issued under Sec. 55 or 56 or abetting

opposition to or disobedience to any direction is punishable under Sec. 113 of the
Karnataka Police Act. Any person who, in contravention of direction issued under Sec.
55 or 56, enters an area from which he was directed to remove himself is punishable
under Sec. 114 of the Police Act.

Powers of Competent Authorities under the Police Act:

16.20 The expression 'Competent Authority' which is defined under Sec. 2 (4) of
the Karnataka Police Act, means the Commissioner of Police in relation to the cases of
Bangalore and in other areas, the District Magistrate or the Superintendent or the
Additional Superintendent or the Assistant Superintendent or the Deputy Superintendent
when specially empowered in that behalf by the Government.

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Powers to make rules prohibiting disposal of the dead except at
places set apart:

16.21 Section 33 of the Karnataka Police Act empowers the Competent Authority
to make rules from time to time in consultation with the Health Officer and subject to
previous publication, prohibiting the disposal of the dead at places other than those set
apart for that purpose. The rules could be made only in respect of places or towns where
the places for the disposal of the dead are set apart by any custom, usage or the like for
the time being in force and shall specify the places set apart for the disposal of the dead
of the different communities or section of communities. The rules shall be made in
consultation with the Health Officer and shall be subject to previous publication. It is
open to the 'Competent Authority' to accord permission to dispose of the dead at any
place other than a place so set apart, on such application made by any person after
consulting the Health Officer of that area, if in his opinion such disposal is not likely to
cause obstruction to traffic or disturbance of public peace or is not objectionable for any
other reason. Contravention of any rules made under Sec. 33 is punishable under Sec.
107 of the Police Act.

Issue of orders for maintenance of order at Ceremonials, etc.

16.22 Section 39 of the Police Act empowers the 'Competent Authority' to issue orders
regarding the conduct of persons towards each other and towards the public as deemed
necessary and reasonable under the circumstances, regard being had to the apparent
legal rights and to any established practice of the parties and of the persons interested in
any case of an actual or intended religious or ceremonial or corporate display or
exhibition or organised assemblage in any street or public place if it appears to the said
authority that a dispute or contention which is likely to lead to grave disturbance of the
peace exists. Every such order shall be published in the town or place wherein it is to
operate and all persons concerned shall be bound to conform to the same. Any order
under Section 39 (1) shall be subject to a decree, injunction or order made by a court
having jurisdiction it shall be recalled and altered on being made to appear to the
authority making the order, that such order is inconsistent with the judgment, decree,
injunction or the order of such court, on the complaint, suit or an application of any
person interested, as to the rights and duties of any Competent Authority to issue orders

158
for the maintenance of order for religious ceremonies and processions. Such order is
made for the purpose of temporarily safeguarding the public peace.

16.23 No inquiry is contemplated before making the order. Sec. 39 (2) leaves
unaffected all questions of. civil rights. The appropriate remedy for any person
considering himself aggrieved by such an order is to appeal to Executive Government or
to establish his claim in a civil court. It is open to the Competent Authority acting under
this Section to give any person forming a religious procession, directions in the interest
of the public as to carrying a particular emblem or not and ,as to the time and route of
the procession and as to the presence of the Police. The order passed under this
Section should indicate the persons or parties who are affected by it and also the
occasion to which it is intended to apply.

16.24 Disobedience or abetment of disobedience of an order issued under Sec. 39

is punishable under Sec. 108 of the Act.

Discontinuance of use of premises by disorderly persons:

16.25 Section 41 empowers the Commissioner of Police, District Magistrate or

Sub-Divisional Magistrate to order the owner or tenant of a house which is used as a
common gaming house or place of resort of disorderly persons of any description to the
annoyance of the inhabitants of the vicinity, to discontinue such use of the house. The
exercise of the powers under this Section can be done only after the following conditions
are fulfilled:

(i) Government should have extended the provisions of this Section by issue
of notification in the Official Gazette to the City, Town or Village in the jurisdiction of the
Commissioner, District Magistrate or Sub-Divisional Magistrate.

(ii) A complaint should have been made to such officer.

(iii) The Commissioner of Police or Magistrate on receipt of such complaint

should summon the owner or tenant of the house to answer the complaint.

(iv) The officer should be satisfied that the house is so used.

In the order issued by the Magistrate, the period within which the owner or

159
tenant of the house should discontinue use of it should be indicated.

Special measures to prevent outbreak of epidemic disease at Fair,

etc:

16.26 Section 42 provides that whenever it shall appear to the Commissioner or

the District Magistrate that at any place in the area under their respective charges, at
which on account of pilgrimage, fair or other occurrence, large bodies of persons have
assembled or are likely to assemble is visited or will probably be visited with an outbreak
of any epidemic disease, he may take such measures and may by public notice and
after consultation with the Health Officer of the area concerned prescribe such
regulations to be observed by the residents of the said place and by persons present
there at or proceeding thereto or returning therefrom as he shall deem necessary to
prevent outbreak of such disease or the spread thereof. Sub-sec. (2) of Sec. 42 provides
that it shall be lawful for the District Magistrate to assess and levy such reasonable
charges on persons visiting such places to provide for expenses of the arrangements for
sanitation and the preservation of order at or about the place of assemblage. If the said
place of assemblage is within the jurisdiction of a Municipal body such sums as shall be
necessary for the purpose aforesaid be recovered from the Municipal body.

Employment of additional police:

16.27 Section 46 of the Karnataka Police Act, 1963 empowers the Commissioner of
Police or the Superintendent of Police to depute on the application of any persons, any
additional number of police to keep the peace, to preserve order or to enforce any of the
provisions of the Police Act or any other Act in respect of any particular class or classes
of offences or to perform any other police duties at any place in the area under his
charge. According to Sec. 46 (2) such Additional Police shall be employed at the cost of
the person making the application but shall be subject to the orders of the Police
authorities and shall be employed for such period as the appointing authority thinks fit.

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Employment of additional police at large works and when
apprehension regarding behaviour of employee exists:

16.28 According to Sec 47 whenever it appears to the Government or a competent

authority that (a) any large work which is being carried on or any public amusement
which is being conducted is likely to impede the traffic or to attract a large number of
people or;

(b) that a behaviour or a reasonable apprehension of the behaviour of the

persons employed on any railway, canal or other public work, or in upon any
manufactory or other commercial concern under construction or in operation at any
place necessitates the employment of additional police at such place, the Government or
the competent authority may depute such additional police to the said place as it shall
think fit and keep the said police employed at such place for so long as such necessity
shall appear to continue. Such additional police shall be employed at the cost of the
person by whom the work, amusement, manufactory or concern is being constructed,
conducted or carried on and the said person shall pay the costs therefore at such rates
and at such times as the Government or the competent authority as the case may be,
shall from time to time, require.

Recovery of Cost of Additional Police employed:

16.29 In case of any dispute, regarding the cost of additional police employed
under Sec. 46 and Sec. 47, the decision of the District Magistrate shall be conclusive as
to the amount to be paid and the sum so ascertained may, on the requisition of the
District Magistrate be recovered by the Deputy Commissioner of the Revenue District as
if it were an arrear of Land Revenue due from the person bound to be answerable
therefor.

Employment of additional police in cases of special danger to public

peace:

16.30 Section 49 lays down the circumstances under which additional police may
be employed in cases of special danger to public peace. In this connection Order No.
1187 of Karnataka Police Act, 1963 Volume II is reproduced below:

161
1. Section 49 of the Karnataka Police Act 1963 empowers Government to sanction
the employment of additional police in any local area which appears to them to
be in, a disturbed or dangerous state, or in which the conduct of the inhabitants
renders it necessary temporarily to increase the strength of the police as a
punitive measure. Such additional police must, therefore, be employed only for
the maintenance of peace of the locality concerned. .

2. In villages rampant with factions, where unreported crimes are on the increase,
additional police may also be quartered as a punitive measures under Sec. 49 (1)
of the Karnataka Police Act, 1963.

3. Sanction to the imposition of such additional police should be obtained from the
Government and formal proposals as to how the cost should be recovered
should be submitted to the Government later.

4. When the Superintendent considers that additional police should be imposed in

any area in the District, the Superintendent will immediately submit proposals to
the Deputy Inspector General through the District Magistrate furnishing
information in Form No. 124. The proposals will be forwarded by the District
Magistrate with his remarks to the Deputy Inspector General of Police.

5. Whenever any proposal for the establishment of an Additional Police Post is

submitted to Government for sanction, it should be accompanied by information
showing the population of the village in which it is proposed to establish the
Police Post, cost involved and the average incidence of the taxation which the
maintenance of the post will necessitate.

6. In all applications for additional police, the Superintendent should report how
many men are intended to be from Civil Police and how many from District
Armed Reserves and also the number and the kind of arms accountrements and
articles of clothing required.

7. On receipt of the proposals, the Deputy Inspector General will, if necessary, visit
the area in question in order to satisfy himself that the conduct of inhabitants of
the area justified the imposition of additional police. If he is satisfied that
additional police are necessary he will endorse the proposals received from the

162
 District authorities and forward them to the Inspector General of Police.

8. On receipt of the proposals from the Deputy Inspector General, the Inspector
General of Police will move the Government for imposition of additional Police
and, if they agree, request them to issue a notification in the Karnataka Gazette.

9. As soon as the notification is published in the Karnataka Gazette, the

Superintendent will draft a force of the strength mentioned in the notification to
the area. This force will be provided from the District Police strength and
substitute force raised.

10. While officiating promotions may be made in the vacancies caused by the
deputation of Sub-Inspector, Assistant Sub-Inspectors and Head Constables as
part of the additional force, Constables should be enlisted only if it could be
foreseen that the vacancies would last for more than six months.

11. As soon as possible, after the notification imposing additional Police on an area
appears in the Gazette, the District Magistrate will submit proposals to the
Government through the Inspector General of Police as to how the cost of the
force is to be recovered. He will state clearly the financial condition of the
inhabitants of the area from whom the cost is proposed to be recovered and he
will show how the cost is to be distributed amongst them. If it is considered
desirable that any of the residents of the area should be exempted from
contributing to the cost of the force, the reasons therefore should be clearly
stated in the proposals.

12. The cost of Additional Police will, with the sanction of the Government, be
recovered by the District Magistrate or any other authority authorised for this
purpose by the Government from the inhabitants of the area on which the force is
imposed, but any resident, residents or class of residents of the area may be
exempted from contributing to the cost of the force if they can prove to the
satisfaction of the District Magistrate that they were in no way responsible for the
condition that rendered the imposition of the additional police necessary.

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13. Additional police are imposed as a punitive measure and the cost of the force is a
collective fine on the inhabitants of the area on which the force is imposed. It is
essential, therefore, that, when additional police are considered necessary, they
should be imposed as soon as possible after the commencement of the
conditions that render them necessary.

14. Whenever it is considered desirable to extend the period for which additional
Police have been imposed, a report specifying the reasons why the retention of
the force is considered necessary and the further period for which the force
should be retained, will be submitted by the Superintendent of Police to the
Inspector General of Police through the District Magistrate and the range Deputy
Inspector General of Police so as to reach the Inspector General of Police atleast
two months before the term for which it was originally imposed expires.
Additional police may not, without the sanction of the Government, be retained
beyond the term for which it was originally imposed expires.

15. On the expiry of the period for which the imposition of Additional Police has been
sanctioned on any area, the force will be withdrawn and officiating promotions
made in the vacancies will cease.

16. Additional police will be under the control of the Station House Officer within
whose jurisdiction the area on which the force has been imposed is situated. If
there is no police outpost in this area, the Station House Officer will hire a
suitable house for the accommodation of the force, the rent of the house being
recovered from the inhabitants of the area as an item of the cost of the force.

17. The duties to be performed by additional police are to patrol the area on which
they have been imposed and to restrain the inhabitants of the area from
committing excesses. The exact duties of the force shall be laid down by the
Superintendent of Police, and the Station House Officer shall be responsible for
seeing that these duties are carefully carried out.

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16.31 In exercise of the powers conferred by Sec. 163 read with Sec. 49 of the
Karnataka Police Act, 1963, Government of Karnataka have promulgated Karnataka
State Police (Recovery of Public Cost of additional police employed in cases of special
danger to Public Peace) Rules, 1970. These rules lay down the procedure to be followed
by the Deputy Commissioner in recovering the cost of additional police, under Sec. 49
(5) of Karnataka Police Act, .1963. Every amount recoverable by the Deputy
Commissioner of Revenue District has to be recovered as if it were an arrear of Land
Revenue due by the person liable therefor.

16.32 According to the explanation to Sec. 49 the expression "inhabitants" when

used with reference to any area includes persons who themselves or by their agents or
servants occupy or hold land or other immovable property within such area and land
lords who themselves or by their agents or servants collect rent from holders or
occupiers of land in such areas, not withstanding that they do not actually reside therein.

Recovery of compensation for injury caused by unlawful assembly:

16.33 Section 50 of the Karnataka Police Act lays down the procedure for recovery
of compensation for injury caused by unlawful assembly. When any loss or damage is
caused to any person or persons, by anything done in the prosecution of the common
object of an unlawful assembly, the Government is empowered by notification in the
Official Gazette to specify;

a) any area as "the disturbance area" in which in its opinion such an unlawful
assembly was held; and

b) the date on which or the period during which such unlawful assembly was held.
On the issue of notification under Sub-sec. (1) of Sec. 50 by the Government, the
District Magistrate is empowered to determine the amount of the compensation
which, in his opinion, should be paid to any person or persons in respect of the
loss or damage or death or grievous hvrt aforesaid. The amount of compensation
shall be a tax imposed under Sec. 50 and should be recovered in the manner
prescribed under Subsec. (4) to (9) of Sec. 50. The definition of "inhabitants" is
the same as the definition given under Sec. 49.

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District Magistrate to award or to apportion compensation among
persons:

16.34 Under Sec. 51 the District Magistrate is empowered to award or apportion

any moneys recovered as compensation under Sub-sec. (3) to (8) of Sec. 50 to any
person or among all or any persons whom he considers entitled to compensation in
respect of the loss or damage or death or grievous hurt caused by the unlawful
assembly. For the purpose of getting compensation under Sec. 51 (1 ).

(i) a claim should be made within forty five days from the date of
notification issued by the Government under Sub-sec. (1) of Sec.
50; and

(ii) the District Magistrate should be satisfied that the person claiming

compensation or where such claim is made in respect of the death of

any person, that person also is free from blame in connection with

the occurrences which led to the loss, damage, death or grievous

hurt [Sec. 51 (2)].

16.35 According to Sub-sec. (3) of Sec. 51 the compensation to any person under
Sec. 50 in respect of death or grievous hurt shall not in any way be capable of being
assigned or charged or be liable to attachment or to pass to any person other than the
person entitled to it by operation of law nor shall any claim be set off against the same.
Every direction and order made by the District Magistrate under Sec. 51 or 50 is subject
to revision by the Government [Sec. 51 (4)].

District Magistrate to discharge functions under orders of Government:

16.36 The functions of the District Magistrate under Sec. 50 and 51 are subject
to any general or special orders of the Government in this behalf (Sec. 52).

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Recovery of the cost of additional police:

16.37 Sec. 53 lays down the procedure for recovery or proportionate recovery of
the cost of additional police and compensation for loss caused by the unlawful assembly.

53. Proportionate recovery of the cost of additional Police and compensation for
loss caused by unlawful assembly. (l) Notwithstanding anything contained in any law
in force relating to houserent and accommodation control, where under the provisions of
Sec. 49 or 50, the municipal body or the Deputy Commissioner of the Revenue District,
as the case may be, is required to recover the cost of the additional Police, including the
additional sum referred to in sub-section (4) of Sec. 49 (hereinafter called “the additional
cost”) or the compensation amount and the municipal recovery cost (hereinafter called
the “riot tax”) by an addition to the general or property tax, the landlord, from whom any
portion of the additional cost or the riot tax is recovered, in respect of any premises shall
be entitled to recover seventy-five per cent of such portion from the tenant in the
occupation of the premises during the period fixed under sub-section (1) of Sec. 49 or on
the date or during the greater part of the period specified under Cl. (b) of sub-section (1)
of Sec. 50 as the case may be, in the manner specified in sub-section (2).

(2) The amount referred to in sub-section (1) and to be recovered from a tenant
referred to therein shall bear the same proportion as the rent payable by him in respect
of the premises in his occupation bears to the total amount of rent recoverable for the
whole premises if left, and the same shall be recoverable in not less than four equal
installments.

000

167
 CHAPTER - XVII

CONTEMPT OF COURTS ACT, 1971

17.1 Contempt of Court may be described as "disobedience to the court or an

opposing or despising the authority, justice or dignity thereof" or any conduct that tends
to bring the authority and administration of law into disrespect or disregard. Contempt of
court may take several forms. Generally it is divided into two categories- Civil and
Criminal. While Criminal Procedure Code contains some provisions relating to contempt
of courts (Chapter-XXVI), there is the Contempt of Courts Act, 1971 which specifically
deals with matters relating to contempt.

Definitions:

17.2 The salient features of the Act are as follows:

As per the definition contained in Sec. 2, the contempt of court is divided into
two kinds viz., Civil Contempts and Criminal Contempts. The definitions are as under:

1. 'Civil Contempt" means wilful disobedience to any judgment, decree, direction,

order, writ or other process of a court or wilful breach of an undertaking given to
a court.

2. 'Criminal Contempt' means the publication (whether visible representations or

otherwise) of any matter or the doing of any other act whatsoever which

I. scandalises or tends to scandalise, or lowers or tends to lower the authority

of, any court; or

II. prejudices, or interferes or tends to interfere with, the due course of any
judicial proceedings; or

III. interferes or tends to interferes with, or obstructs or tends to obstruct the

administration of justice in any other manner.

168
Fabrication of Court’s Order

Section 2 (c) (III) & 15 : [A.M. Farooq & Ashok B. Hinchigeri, JJ] Fabrication
and forgery of the interim order to prevent change of Khata in Revenue
Proceedings – Belated tendering of apology for not verifying the interim order properly
and producing it without verification – Accused a graduate and doing law course and
has been a bench clerk in Land Tribunal - Very well versed with all Court Proceedings –
also done the same in many other cases – Apology was not accepted – Sentenced to
undergo S.I., for 3 months and to pay a fine of Rs. 1,000/- and in default to under S.I.,
for 3 months. (Registrar General Vs. Gundu Rao & ors.) ILR 2005 (2) KAR 1990 :
2005

Condone delay in Implementation of Court Order

Karnataka High Court by its order in 1985 directed the respondents to hold an
enquiry. But till 1990 no enquiry was conducted. This was construed as unreasonable
delay in carrying out the order. Even though no time limit was fixed, and hence it was
held as contempt. (In K.V. Venkatesh v. Taluka Executive Magistrate, Magadi Taluk,
Magadi) (AIR 1990 Kant.86).

Violation of Court’s Stay Order

Section 16 : [Shivaraj V. Patil & D.M. Dharmadhikari, JJ] Contempt of Court –

Interim order of High Court staying the operation of order of reference of Industrial
Dispute to Tribunal – Tribunal passing order on employer‟s application under Section 33
(2) (b), Proviso of I.D. Act, 1947 – Held, In View of the Stay of order of Reference itself,
Tribunal cannot enter upon reference and commerce proceedings. The order passed by
the Tribunal is not only one without jurisdiction but also amounts to contempt of order of
High Court. B.P.L. Ltd. & ors Vs. B. Sudhakar & ors. [CA 2999-3011/2004 DD
6.5.2004] 2005 (2) Kar.L.J. 349 (SC).

169
Breach of Court’s Injunction

Section 16 : When the respondent was likely to disconnect the power supply, the
petitioner filed a civil suit and got an injunction. Contempt petition arose because even
after the injunction and direction by the court the respondent disconnected the electricity
supply. In case of breach of injunction, action can be taken under Rule 2a of Order 39 of
Civil Procedure Code. Since alternative remedy was available contempt petition was not
entertained

Since Contempt Jurisdiction is an extraordinary one for maintaining the

dignity of the court, it will not use it whenever an alternative remedy is available or when
there is substantial compliance of its orders. . (Shaik Mohiddin v. Section Officer

Karnataka Electricity Board 1994 Sri. L.J.(Karnataka High Court) 3639.)

17.3 Any statement made in good faith concerning the Presiding Officer of any
subordinate Court to a Court higher than the said court or to the High Court, will not be
contempt (Sec. 6).

17.4 The High Court has the jurisdiction, power and authority to take
cognizance of contempt committed in respect of any subordinate court (Sec. 10).
In cases where such contempt is an offence under the Indian Penal Code, the High
Court will not have jurisdiction but such offences shall have to be tried before the
concerned Judicial Magistrate.

17.5 Punishment for contempt of court extends to imprisonment for 6 months or

with fine which may extend to Rs.2,000 or with both (Sec. 12). In order that the contempt
shall be punished by imposing a sentence under the Act, the court shall have to specify
that the contempt is of such a nature that it substantially interferes or tends substantially
to interfere with the due course of justice.

17.6 As' provided in Sec. 15 (2) of the Act, in case of any criminal contempt of a
subordinate court, the High Court has to take action on a reference made to it by the
Subordinate Court or on a motion made by the Advocate General.

170
17.7 Under Sec. 16 of the Act, subject to the provisions of any law in force, the
Judge, Magistrate or other person acting judicially shall also be liable for contempt of his
own court or of any other court in the same manner as any other individual is liable
under the provisions of this Act. However the observations or remarks made by judge or
magistrate regarding subordinate court in appeal or revision pending before such judge
or magistrate will not amount to contempt of subordinate court.

17.8 Sec. 20 provides for "imitations for actions of contempt. Under the said
section, no court shall initiate any proceedings for contempt either on its own motion or
otherwise after expiry of a period of one year from the date on which contempt is alleged
to have been committed.

17.9 Sec. 345 of the Code of Criminal Procedure deals with contempt committed in
the very presence of the court. When certain offences described in the Indian Penal
Code (referred to in the Section) are committed in the presence of the Court, the court
may detain the offender in custody, and may also take cognizance of the offence and
deal with it as per law.

17.10 The Court has the power to pardon contempt on sincere apology tendered
unconditionally. But it is left to the discretion of the court to accept it or not.

Deliberate disobedience is contempt of court and the concern of the court in such
disobedience is expressed in the following words:

It seems that the trend of today is more to disregard the orders of court than to
comply with the same with the belief that apologies tendered at the time of hearing will
condone all acts of the contemner. The time has come when it must be made clear to
the litigant public and all, that when a direction is given and orders are made, the court‟s
orders are required to be carried out to their fullest extent and any willful disregard to the
same will not be tolerated by a court of law and severe consequences will follow if orders
are found to have been violated.( Lakshmi Narayan Dutta v. Smt.Mira Rani Dey. 1984
Cri.L.J.(Calcutta High Court) 1033)

171
17.11 Magistrates are advised to show restraint in exercising contempt jurisdiction and
use it only sparingly. It should not be invoked unless there is real prejudice which can be
regarded as substantial interference with the due course of justice.

000

172
 APPENDIX-I

LISTS OF CENTRAL AND STATE ACTS

CONFERRING POWERS ON EXECUTIVE
MAGISTRATES

NOTE:

In this Appendix, lists of Central Acts and State conferring Powers on Executive
Magistrates are given. These Acts and Sections of Acts mentioned are only
enumerative. Under some of the Sections mentioned the powers are conferred on
specific class of Executive Magistrates like District Magistrate, Sub-Divisional Magistrate
etc. It may also be noted that to exercise powers under certain sections of some of the
Acts, the Executive Magistrates are to be specially empowered.

SI. Nature of Power Authority on Relevant

No. Name of the Act whom power is Section of Remarks
conferred law

1 2 3 4 5 6
(1) LIST OF CENTRAL ACTS
1. Advocates Act To permit any person An Executive
32
not enrolled as an Any court including Magistrate even when
1961 advocate to appear that of Executive not functioning as
before the court in Magistrate court may exercise this
any particular case power to permit
appearance in any
particular case.
2) To make a Should not be
Any court including 35 indiscriminately or
complaint to the that of E.M arbitrarily used
State Bar Council
regarding
professional or other
misconduct by an
advocate
2. Arms Act, 1959 5 The intending seller of
1) To be informed of D.M or Officer in fire arms or
sale or transfer of charge of nearest
fire arm/ police Station ammunition shall
ammunition communicate the
name of the intending
buyer at least 45 days
prior to sale.
2) To grant licence Licensing Authority
13 After due enquiry

173
 14 In case of refusal, he
3) To refuse to grant As above shall give a brief
licence
Statement of the
reasons to the
applicant on demand,
unless it will not be in
public interest to do so
As above 15
4) To renew licence Reasons to be given
for refusal

5) To receive licence 16
fee and impose addi- As above Conditions should be
reasonable
tional conditions

6) To suspend or As above or any He may give notice to

revoke and vary authority to whom 17 the holder for
conditions the licensing delivering up licence
authority is
subordinate
Any Magistrate 20 For carrying arms
any Police officer, under suspicious
7) To arrest and Public servant or circumstances
seize arms or person employed
ammunition in railway,
aircraft, vessel,
vehicle, etc
After deposit of the
arms and ammunition
8) To order for
under section 21 and
forfeiture of arms and D.M 21(3)
after issuance of show
ammunition
cause notice

If he has reason to
believe that such
arms will be used for
unlawful purpose or
cannot be left without
9) To search and
danger to the public
seize arms and Any Magistrate 22
peace or safety.
ammunition
Reasons to be
recorded in the order
before searching the
house or premises

10) To stop and 23 For ascertaining

search any vessel, Any Magistrate/ contravention
vehicle or other any Police of the Act or the Rules
means of Officer/any other
conveyance and to officer specially
seize any arms and empowered by
ammunition Central Govt

174
11 ) To search and Any Officer Where the
seize notified arms in subordinate Central
disturbed areas to Central or Government is
State Govt. as satisfied that
may be specified there is
24-A
extensive
disturbance of
public peace and
tranquillity or
imminent danger
12) To search any
person or any animal
or vehicle and seize
-Do- 24-A(1)(d)
any notified arms and
ammunition

13) To be informed of Failure to give

the commission of information
any offence under without
Magistrate having
the Act reasonable
jurisdiction /
36 excuse is
officers in charge
punishable under
of police station
section 30 of the
Act

14) To allow 37 If arrest or seizure

production of done by a person
Officer in charge
arrested persons of Police station not being a
and arms not Magistrate or
ammunition police officer
seized
15) To grant sanction 39
for prosecution D.M

Arms Rules, 1962

1) To specifically D.M Rule 11
authorise persons to
carry arms within the
campus of
educational institution

2) To get a copy of
traveller's D.M. Rule 17
temporary licence
3) To inspect
premises, stock, Magistrate Rule 27
records, where
arms, etc are
manufactured and
kept

175
 4 ) To inspect police D.M/Other officer Periodic inspection
station, .and Rule 49
empowered by the of arms etc
District Malkhana State Government Deposited with the
dealer in authorised

[Note : a) For ascertaining who are the licensing, renewing authorities, please consult Schedule II to the Act.

b) "Authority" or "Officer" means except where otherwise specifically provided in the Rules (Arms Rules,
1962), the D.M, or such officer as may, from time to time, be notified in the Official Gazette by Central
Government. Rule 2(c).

c) "D.M" includes an A.D.M or any other officer specifically empowered by the State Government.

Licensing authorities other than D.M shall send a copy of every licence to the D.M having jurisdiction
over the area. Rule 9.
d) For finding out who are the Appellate Authorities, please refer to Rule 5. ]

3. Boilers Act, 1923 To direct the D.M / C.PI

owner of any or any person
boiler to produce specially 15
the certificate authorised by
the D.M IC.P
4. Bonded labour If a bonded labourer,
1) To restore
System, is evicted from
possession of
(Abolition) residential premises,
homestead or other S.D.M 8 (2)
Act 1976 after he has been
premises back to
freed or discharged
bonded labourer
2) (a) To ensure State Government
implementation of D.M 10 may confer such
the Act power
(b) To discharge
Any officer
such powers and to On being delegated
subordinate 10
perform such duties by D.M.
to D.M
of the D.M
3) To promote D.M or other
For the bonded
welfare and to authorised 11
labourers
ensure credit officer
4) To enquire into Bonded labour
and eradicate the system has been
enforcement of - Do - 12
abolished under Act
forced labour vide Section 4
5) To be the
chairman or to
nominate any On the Vigilance
person for the D.M 13 Committee
office of.
chairman

176
 6) To be chairman
or to nominate any
person in the sub-
divisional Vigilance SDM 13(3)(a)
Committee

7) To nominate SC On the Vigilance

and ST, Social SDM 13(3) Committee
workers etc
Powers under
Section 21
conferred on
executive
Magistrate to
try offences
under the
8) Power to try Bonded labour
offences under the (Abolition) Act,
Act EM 21 1976 vide
State
Government
Notification
No. SWL
20LBI 76
dated
30/3/1976.

Cantonments DM 263 (2)

5. Act 1924 1) To call upon the For constitution of
board to
Committee of
nominate a member
Arbitration

As may be required by
2) To issue and the Committee of
enforce processes DM 264 (3) Arbitration

Cantonments
6. (House Enforcing surrender DM
Accommodation) of a house 12
Act, 1923

Census Act, 1948 Direction should be

7. 1) To direct given in writing in the
specified officers D M I any other form of an order.
or persons to authority appointed by Refusing or neglecting
perform duties of the State Govt. 6 to perform such duties
census officers is punishable under
Section 187 IPC

177
 2) To call upon
persons, officers Persons acting in
and staff of any pursuance of such
factory, firm or order be deemed to
establishment etc As above
7 be public servants
and others specified within the meaning of
to give assistance Section 21 of IPC
towards taking of a
census

1) To pass orders When there is reason

Cinematograph to believe that the
8. Act, 1952 for search DM 7A provisions of the Act
and seizure are being contravened

Depends upon his

satisfaction as to
compliance with the
2) To grant licence Rules and adoption of
DM 11 safety and
precautionary
measures vide
Section 12
3) To suspend When exhibition of the
exhibition of films DM 13 films may cause
breach of peace

When the holder of

4) To revoke Licensing Authority the licence has been
licence which 15 convicted of an
includes DM offence under section
7 or 14
9. Code of Civil Administration of
Procedure 1908 Oath to the
deponent in case of Any court / Magistrate 139
affidavits filed under
the provisions of the
Code
10. Commission of
1) To prohibit the If he is of the opinion
Sati
doing of any act 6 that 'Sati' or its
(Prevention) Act DM/ DC
towards the abetment is about to
1987 with Rules be committed
commission of Sati
1988
The State
Government may
direct that powers of
the Collector or D.M
u/s 6 may also be
exercised by such
other officer, not
below the rank of
Villages Officers. Vide
Rule 3.
2) To prohibit the
glorification of
'Sati' by any
As above 6
person in any
manner

178
 If he is satisfied that in
any temple or other
3) To order removal structure any form of
of certain temples worship is carried out
other than those with a view to
covered by Section As above 7(2) perpetuate honour of
7(1) or to preserve the
memory of any
person who has
committed 'Sati'

4) To order removal In case of non-

of such structure etc compliance of orders
through police As above 7(3) passed under section
officer 7(1) and 7(2)

When he has reason

to believe that any
funds or properties
have been collected or
acquired for the
5) To seize certain purpose of glorification
funds and properties As above 8 of the commission of
'Sati' or which may be
found under
circumstances which
create suspicion of the
commission of any
offence under this Act
6) To be protected
against suit
prosecution or other
legal proceedings
for anything done in Any officer or authority
good faith or including DM 15
intended to be done
in pursuance of the
Act, Rules or Order
made thereunder

7) To specify village
officer and other
officers and
inhabitants of such
area who will be
under an obligation Violation punishable
DM/DC 17(2)
under Section 17 (3)
to report about
commission of
offence under the
Act to the nearest
police station

179
 8) To prepare
inventory of all the
material and other
property obtained
after removal of DM/ DC Rule 7
temple or structures
and to forward
intimation thereof to
the Special Court
11. Contempt of Any subordinate court
Courts Act 1971 1 ) To refer a which includes May be resorted to
only in appropriate
criminal contempt to a court of EM 15(2)
cases to meet the
the High Court or Revenue ends of justice
2) To specify the
contempt of which In this context
As above attention is also
the person charged 15(3)
drawn to Section
is alleged to be
345 Cr.P.C
guilty.
NOTE: 1) A Judge or
Magistrate may also
commit contempt of
his own court. Vide
Sec 16.

2) Although there is
no express provision
as to making of a
reference to High
Court regarding Civil
contempt, a report
may be submitted to
the High Court by any
subordinate court
alleging civil contempt

3) “Civil Contempt'
means willful
disobedience to any
judgment, decree,
direction or other
process of court.

Cotton Ginning Certain amendments

12. 1) To give sanction D.M have been carried out
and Pressing
Factories for prosecution for to this Act in its
violation of the 11 application to the
Act, 1925 State & vide
provision of the
Act Karnataka Cotton
Ginning and
2) To institute
prosecution for
violation of 11
D.M
the provisions of the
Act

180
13. Criminal 1) To Restrict the
Procedure local limits of each The authority of the
D.M. is subject to the
Code, 1973 Executive D.M. 2(1)&(2)
control of the state
Magistrate within Government
the district
2) (a) To distribute
business among
the Executive
Magistrates sub- D.M. 23(2)
ordinate to him

(b) To allocate
business to the
Additional District D.M. 23(2)
Magistrate

3) To confer upon
State Govt.
the A.D.M all or any 20(2)
of the power of D.M
E.M. Powers of Magistrates
3(a)successors in are exercisable by
office to exercise A judge or Magistrate their successors in
powers including 35
office subject to the
his successors Provisions of Cr. P.C
Note: When there is a
doubt as to who is the
successor in office of
any Executive
Magistrate, it shall be
determined by the
D. M. vide sec.35(3)

A member of the
public is bound to
assist the Magistrate
when his aid is
4(a) To demand the
aid of any reasonably demanded
member of the by the magistrate for
public for E.M 37
making arrest
effecting arrest Intentional omission to
render such
assistance is
punishable under
Section 187 IPC.

181
 In the Prevention or
suppression a breach
of peace or in the
taking or preventing
the escape of any
(b) To demand the person whom the
assistance of a Magistrate is
E.M. 37 authorised to arrest or
member of the
Public in the prevention of
any injury attempted
to be committed to
any railway,
telegraph or public
property.

Note : Omission to
render aid is
punishable U/s I.P.C
Nearest
(c) To be informed Magistrate 39 Public to give such
of certain offences or Police information
Officer

(d) To be posted Duty cast upon the

with reports in village officials.
as above 40 Breach of duty
connection with the punishable under
affairs of a village. Section 176 I.P.C.
When any offence is
committed in his
(e) To arrest or to presence or he has
direct arrest within the authority to issue
E.M 44(1) & (2) warrant of arrest for
his local jurisdiction
in his presence the arrest of the
person concerned.

(5) To endorse
warrant of arrest
issued by an
E.M O/C of police
outside court for Station 79
execution within the
local limits of his
jurisdiction

When the outside

(6) To allow the E.M. court issuing the
arrested person to S.P warrant is beyond 30
C.P 80
be produced before k. m. of the place of
him arrest

(7) (a) To check up

whether the person This procedure is to
be followed by the
arrested on warrant, E.M. when any
appears to be the person, arrested on a
E.M 81 warrant issued by an
person intended by
the court issuing the outside court, is
produced before him.
warrant.

182
(b) To direct the
removal of the
arrested person in Unless the offence
custody to the court E.M 81 involved is bailable.
which issued
warrant.

c) i) To enlarge the
arrested person on In such event, the bail-
bail if the offence is bond should be
bailable and the forwarded to the court
person arrested E.M 81
which issued the
furnishes security to warrant.
his satisfaction.

(d) To compel
production of things
for purpose of E.M 91
inquiry

(e) To require
search to be made
for letters and
telegrams in the
custody of the
postal or telegraph E.M 92 (2)
authority pending
the order of D.M.,
C.J.M. etc.

8(a) To issue search For Production of a

warrant (while Any Court, including specified thing or
acting as a that of E.M. 93 (1) document or for
court) general search

For document, parcel

b) to issue search or a thing in custody of
warrant D.M. 93 (3) postal or telegraph
authority.

9) To issue search a) For search of place

warrant or to make D.M. suspected to contain
orders. 94 stolen property, forged
S.D.M. documents etc.
b) For search of
persons wrongly
97 confined
c) For restoration of
98 abducted females.
10) To authorise
Police officer, not
below the rank of Any Magistrate (E.M
Sub- Inspector, to included)
search or seize 95
certain publications
forfeited.

183
 If and when he is
competent to issue a
Any search warrant, he
11) To direct search Magistrate may instead of issuing
in his presence 103
(E.M search warrant direct
included) search to be made in
his presence.

12) To demand
security for good a) For keeping peace
behaviour or E.M. (a) 107 in cases otherwise
keeping peace than on conviction

For good behaviour

from Persons
(b) 108 disseminating
seditious matters.

For good behaviour

(c) 109 from suspected
persons.

For good behaviour

from habitual
(d) 110
offenders.

Note: Section 111 to

124 lay down the
procedure to be
followed for the
exercise of such
Magisterial
Jurisdiction. 2 Section
116 provides for
Procedure to be
followed for inquiry. ]

An "Unlawful
Assembly" is a
collection of five or
more persons
actuated by a
common object as
13)(a) To command specified in Section
141 IPC. An assembly
an unlawful of five or more
assembly either persons which does
actual or E.M. 129 (1) not come within the
potential to purview of Section
disperse 141 IPC may also be
commanded to
disperse provided that
it is in the
circumstances likely to
cause disturbance of
public peace.

184
 When such an
assembly on being so
commanded does not
disperse, Even if such
(b) To disperse such an assembly has not
assembly by use been commanded to
of civil force E.M 129 (2) disperse but it
conducts itself in such
a manner as to show
a determination not to
disperse.

Refusal to disperse is
punishable under
Section 145 IPC in
case of unlawful
assembly and under
Section 151 IPC in
case of an assembly
likely to cause
disturbance to public
peace.

Note : Sources of
Civil forces are :

a) State Police
Force

b) Any male number

of the public
(bb) To make order
for arrest and
confinement with a
view to effecting
E.M 129 (2)
dispersal or being
prosecuted and
punished
according to law
Armed forces include
military, naval, air forces
operating as land forces
(c) To cause an
and also any other
unlawful assembly E.M. of the highest rank
to be dispersed by 130 armed forces of the
present Union of India so
armed forces.
operating like BSF,
CIFF, Assam Rifles and
TTBP ete
cc) To require the
officer commanding
the group of armed
forces to arrest and
confine members of E.M. of the highest rank
130 (2)
such assembly for present
effecting dispersal
or having them
punished

185
 D.M./S.D.M/Executive
14) To pass a
magistrate specially Vide Chapter-XX,
conditional order for (a) 133
removal of nuisance empowered by the Part-B
State Govt.
He may make an
inquiry as to the
(b) 137 existence of public
right when it Is denied

He may hold an
inquiry with a view to
determining whether
the conditional order
(c) 138
should be confirmed
or modified or further
proceedings be
dropped.
15) To issue
injunction
pending inquiry As above 142
U/s 133

16) To Prohibit
repetition or
As above 143
continuance
of public nuisance
He may direct any
person either to
abstain from a
17) To issue order
certain act or to take
in the urgent cases
D.M. S.D.M. Any other certain order with
of nuisance or
E.M. Specially regard to certain
apprehended 144
empowered by the property in his
danger (The order
State Govt. possession or under
is ordinarily
his management.
Prohibitory)
Such direction may
be given to prevent :

a) Obstruction or
annoyance or injury to
any person law fully
employed or;

b) Danger to human
life, health or safety
or;

c) Disturbance of
public tranquillity or
riot or any affray vide
Section 144 Cr.P.C.

186
17 A)T0 issue D.M., S.D.M., any other
temporary orders in When immediate
E.M. specially prevention of speedy
urgent cases of empowered by the
nuisance or appre- 144 remedy is desirable
State Govt.
hended danger

Note: The object of an

order; U/s 144 Cr..P.C
.is to prevent any of
the following

(a) Obstruction
annoyance or injury to
any person lawfully
employed.

(b) Danger to human

life, health and safety.
(c) Disturbance of
public tranquillity

(d) Riot or affray

In case of emergency
17 B) To Pass an D.M., or in cases where
order ex-parte S.D.M., circumstances do not
under section any other E.M specially permit for service of
empowered by the 144 timely notice upon the
144 Cr. P.C State Govt. person against whom
the order is directed.
Note: The nature of
order U/s 144 is
generally prohibitory.
In appropriate cases it
may be mandatory
e.g. the Magistrate
may enjoin the
opposite party to
direct removal of an
obstruction when it Is
needed to prevent a
breach of peace
(Madhu Limaye's case
AIR 1971 SC 2486
Supreme Court)
A Prohibitory order
U/s 144 Cr.P.C must
specify:
17 C) Examples of D.M.,
the orders that S.D.M., i) the thing which is
may be passed any other E.M., 144 prohibited;
U/s 144 specially empowered by
the State Govt. ii) the persons who
are prohibited

187
(a) To prohibit an
assembly, or a iii) the place covered
meeting .or by the order; and
Procession for
prevention of iv) the period of time
breach of peace
but not for Note: The list given in
interfering with column No.2 is only
the lawful illustrative and not
exercise of legal exhaustive.
rights
(b) To Prohibit
carrying of arms or
weapons.
(c) To Prohibit a
person from
entering into a
Particular area.
(d) To Prohibit using
of loudspeakers.
(e) To prohibit Violation of an order
people from coming U/s 144 Cr.P.c is a
out of their houses cognizable offence
on the public road/ and punishable U/s
Street/lane 188 IPC.
(curfew).
(f) To prohibit
raising of
Provocative slogans
which are likely to
cause breach of
peace.
18) To intervene (a) If the E.M is
and satisfied about the
tackle a dispute existence of a dispute
concerning land E.M. of the aforesaid
or water which is 145(1) nature, he may pass a
likely to cause preliminary order.
breach of peace

(b) Afterwards ,he

may make an inquiry.

Note: The inquiry

should be limited to
the question as to who
was in possession in
fact on the date of the
preliminary order
irrespective of the
question as to the
right of the parties.
The object of this
Sec.145 is:

(i) to prevent the

breach of public
peace;

188
 (ii) To provide
summary and speedy
recovery;
(iii) To ascertain which
party was in actual
possession; and
(iv) To maintain
Status-quo until the
right of the parties are
decided by a
competent court.

18 (a)To make an
order declaring the
E:M. 145 (6)
possession

19) (a) To attach

the subject of the The Proceedings U/s
146 are in
dispute and appoint E.M. 146( 1 )
continuation of those
a Receiver. U/s 145.
(b) To appoint
Receiver E.M. 146(2)

Section 147 has the

same object as
Section 145 but the
20) (a) To take nature of dispute U/S
preventive 145 is different from
measures in those U/S 147
respect of disputes E.M. 147 applies to disputes
concerning the right about the possession
to a particular use of land or water itself
of land or water while Sec 147
relates to disputes
regarding rights of
USER of land or
water.
Note: Mode of inquiry
U/s 147 is same as
U/s 145.

There may be
attachment in a
proceeding U/s 145
but the question of
attachment does not
arise in a case U/s
147.

189
21) (a) To make an
order prohibiting
any interference
with the exercise of
the right of the
E.M. 147(3)
actual User
claimed, provided
that it appears to
exist.

(b)To hold local

E.M. 148
inquiry
When a judicial
Magistrate is not
available, an accused
may be forwarded by
a police officer not
22) To remand an below the rank of S.I.
U/S 167 Cr.P.C. to the
accused to custody E.M. 167(2A)
nearest E.M. on whom
during investigation powers of the judicial
Magistrate or
Metropolitan
Magistrate have been
conferred vide Section
167(2A).
22) a) To issue
commission for
examination of E.M. 284
witnesses

23) (a)To make a

Complaint U/s 340 E.M. including D.M. &
340(1)
(1) for offences Courts S.D.M. are Courts
read
affecting the including inferior to that of
with Sessions Judge vide
Administration of that of E.M.
Sec.195 Section 397 & 398.
justice

(b) To order costs in

the context if filing
342
complaint

(c) To forward the

contempt case to
the judicial E.M. 346(1)
Magistrate for trial.

24) To convict & 345, Such Orders of the

punish persons Courts including that of 349,
E.M E.M. are appealable to
under sections 345, 350 the court of session.
349 & 350 Cr.P.C

190
25) To make over or Any case U/s 411
Withdraw from any
Magistrate means any
subordinate to him proceeding or
cases which have inquiry before an
D.M., 411
been started before S.D.M E.M. such as
him or which have cases U/s 107,
been made over to 108, 109, 110,
any Magistrate
subordinate to him 133 144, 145, 146
respectively. and 176.

26) To exercise all

such powers as
have been
conferred upon the
court under
provisions of the
Cr.P.C provided that
those powers are E.M
also relatable to and
exercisable in
furtherance of their
functions under the
code, as for
example:

a) Issuing process 69, 70, 71 etc

Courts including that of Chapter VIA, B,
to compel E.M.
appearance. C. D, & Chapter
VII,1A

b) Taking and
recording evidence
in inquiries. do Do

c) Disposal of
Property pending
inquiry and at the
conclusion of the do 451 to 459
inquiry.

d) Forfeiture of
bonds do furnished
to the Executive
Magistrate under do 446
the Cr.P.C and
imposing penalty.
e) Holding local
inspection do 310

f) Discharge of
sureties E.M.
444
U/S 444 Cr.P.C J.M.
g) Issuing warrant E.M.
for levy of fine 421
J.M..

191
h) Punishing for
criminal contempt in
view or presence of -do- 345
the court
27) To allow
Affidavits to be
sworn. E.M. 297

28) To record the It should be recorded

Criminal Court including 280 while the witness is
demeanour of a that of under examination at
witness any inquiry

Security Proceedings

1) To pass a When the Magistrate

preliminary order acting U/s
asking any 111
E.M 107,108,109, or 110
person to deems it necessary.
showcause.
Note: The order
should be in writing
and it should contain
the following

a) Substance of the
information received;

b) The amount of the

bond to be executed;
and

c) The term for which

it is to be in force; and

d)The
number,character and
class of sureties
required.
2) To read over to
the E.M. Opposite It may, if desired by
party if present in the O.P. be explained
court the preliminary E.M. 112 to him
order.

A copy of the
3) To issue preliminary order
summons requiring should accompany the
such person to summons. This is the
E.M. 113 normal procedure in
appear.
securing attendance
of the O.P.
4) To issue
Production Warrant
addressed to the When such Person is
Officer in charge of
the prison, directing E.M. 113 in prison.
the production of
such person.

192
5) To issue Warrant
of arrest against A copy of the
O.P., when breach Preliminary order
of peace is should be attached
apprehended which Proviso to Sec.
cannot be prevented E.M. to the Warrant of
113 Arrest vide Section
otherwise, than by 114.
immediate arrest of
O.P.
6) To issue warrant
of arrest U/s. 87(b Vide Gopi V/s State
when the O.P. does reported in 1974
not turn up in E.M. 87(b)
response to the Cr.L.J.1410
summons.
7) To give an
opportunity to show
cause to the O.P. E.M. 115

8) To dispense with
the personal
attendance of any
person and permit E.M. 115
him to appear by a
pleader

9) To inquire and Procedure for trial of

record evidence in summon cases to be
E.M. 116 followed.
security
Proceedings
The inquiry is to be
completed within six
months. The proce-
eding shall stand
10) To ask for a terminated on the
interim bond from expiry of six months
such person alter unless the Magistrate,
commencement of for special reasons,
the inquiry and 116(3) extends the time.
E.M. Such extension, if any.
before completion of
the inquiry. is to be made within
six months.
Extension, if any, is
liable to be scrutinized
by the Sessions
Judge.
11) To order for When it is Proved that
furnishing of E.M. it is necessary to take
Security. 117 security.

12) To discharge When the case is not

opposite party E.M. 118 proved

13) To refuse or E.M. If he is found unfit.

reject a surety. 121

193
14) To order
imprisonment in
default of security. 122
E.M.

15) To report the In the meantime the

case to the O.P. may be detained
Sessions Judge for E.M. pending the decision
122 of the Sessions
his orders when the Judge.
bond is for more
than one year
Note: (a) When the
O..P. after execution
of a bond for good
behaviour but during
the term of the bond,
commits or attempts
to commit or abets in
the commission of an
offence punishable
with imprisonment, it
may be regarded as
breach of the bond.
(b) A bond for keeping
the peace is broken
when the O.P. .does
some acts during the
term of the bond,
which is likely in its
consequence to
provoke the breach of
peace.
a) When the
16) To release (a) D.M. imprisonment has
Person imprisoned (b) C.J.M. been ordered by
for failure to give 123(1) Executive Magistrate
as the case
security may be.
b) In other cases
17) To reduce the
amount of security,
number of sureties
or the time for which c) In case of order
(a) High Court passed by E M.
security has been
taken when the (b )Court of Session 123(2)
persons have been (c)D.M.
imprisoned for d) In any other case
failure to give
security.

Inquests
D.M.
S.D.M.,
1) To hold inquest Any other
that means to Inquest when
E.M. mandatory for the
make an inquiry competent E.M. (a)
into the cause of specially 174(4)
empowered When any person dies
unnatural or in the police custody.
suspicious death by the
State Govt
or the D.M.

194
 b) The case involves
suicide of a woman
within seven years of
her marriage.
c)The case relates to
death of woman within
7 years of her
marriage in any
circumstances raising
a reasonable
suspicion that some
other person
committed an offence
in relation to such
woman.
d) In any other case
mentioned in 174(1),
any Magistrate so
empowered may hold
an inquiry into the
cause of death either
instead of or in
addition to the
investigation held by
the police officer
(Here, the inquest by
Magistrate is
DISCRETIONARY)
2) To direct the
police not to hold D.M. or S.D.M. has
inquest on receipt of power to issue general
an information from State Govt. D.M. 176 or special order in this
regard. Vide section
the police or any 174(1) Cr.P.C.
other source.
D.M. S.D.M any other
2A) To cause a EM. specially
dead body to be empowered by the
disinterred 176(3)
State Govt.

3) The Magistrate D.M.& S.D.M Any other

has the following E.M. read specially with
Powers in regard to empowered by 174 the 176
inquest State Govt.

a) To proceed to the Inquest is to be held

spot promptly. on the spot

b) To inform the
relatives of The expression
deceased whose relatives in this
names and context, means
addresses are parents, children
known and allow brothers, sisters and
them to remain spouse
present at the
inquiry

195
c) To examine
carefully the dead
body in presence of
two or more
respectable
inhabitants of the
neighbourhood.
d) To note down all
relevant features,
which include,
among other things, Signs of inflammatory
number, position reaction (smelling etc,)
and direction of and signs of struggles
wounds, fractures, should be recorded.
bruises and other
marks of injury on
the body.

e) To take steps
(before
commencing
examination of the
dead body) for
identification of the
deceased by at
least two persons
who have known
him before his death

f) To examine the He has Power to

persons who are administer oath Vide
supposed to be section 3 of the Oaths
acquainted with the Act, 1969.
facts and the Note : Evidence of
circumstance of the each witness should
case and record be recorded
their evidence separately in verbatim
g) To call and
examine
eyewitness, if
available.
h) To inspect the It is not necessary to
general diary, examine all the
connected case eyewitnesses. If
diary, lockup eyewitnesses are not
register and all other available the
relevant records and Magistrate may
documents in case examine other
of inquiry into the persons who may
cause of death in throw light over the
Police custody. cause of death.
Proceedings
i) To issue process conducted by E.M.
and to compel U/S 176 Cr.P.C are an
appearance of inquiry within the
witness and meaning of section
production of things. 2(g) Cr.P.C vide A.I.R.
1928 Bombay 390.

196
 An E.M. though not
empowered to record
confessional
statement U/S 164
Cr.P.C. may record
confession of any
4) To record person throwing light
confession of any over the cause of
person which is
likely to throw light E.M. 176 death AIR 1953
over the cause of Madras 138 (741) AIR
death. 1964 AP 548

D. M cannot interfere
in an inquiry U/s 176
Cr.P.C made by the
S.D.M or any other
competent E.M

Other Powers
1) To postpone or
adjourn Any court
Reasons to be
Proceedings which including 309
recorded
include inquiries. E.M.

2) To direct the
payment of cost by The cost may form a
Explanation (2) of
the prosecution to As above Condition or term of
Sec.309
the accused adjournment

3) To visit and
inspect any place in
which an offence
alleged to have
been committed or
any other place
which is necessary Any Judge
to view for the or Magistrate Due notice to be
310(1)
purpose of properly including given to the person.
appreciating the E.M.
evidence given at
an inquiry or a trial
at any stage of
inquiry trial or the
proceeding.

4) To record a
memorandum of Such memorandum
any relevant facts Any judge or would form part of
310(1)
observed at such Magistrate the record of the
inspection case.

197
 If evidence of such
person appears to be
necessary for the just
decision of the case,
such person can be
5) To summon, examined at any
examine, recall and Any court stage of inquiry trial or
re-examine any including other proceeding
311
material witness or court of under Cr.P.C.
who is present in E.M.
court

Note: Section 311

has two parts. One
discretionary and the
other mandatory.
5A) To order
payment of
expenses of
312
witnesses in any
inquiry

6) To take
cognizance
of the offence for If any witness, being
non- attendance by Any Criminal summoned, does
a witness in Court including 350(1) not appear without
avoidance of that of E.M. just excuse, neglects
summons and to try or refuses to attend.
him summarily.

7) To cause an
offender
to be detained in
Civil,
custody at any time For Criminal Contempt
Criminal or 345( 1)
before the rising of of Court
Revenue Court
the court on the
same day.

8) To sentence
Summary
such a witness to
trial/Procedure
fine not exceeding As above 35O( 1)
to be followed for
Rs.100.
hearing
9) To take
cognizance
of the offence as
Offender should be
described in
given reasonable
Sec.175, 178, 179, Civil,
opportunity to show
180, 228 I.P.C Criminal or 345( 1)
cause as to why he
When it is Revenue Court
should not be
committed in the
punished.
view of or in the
presence of the
court.

198
 10) To sentence
such offender for
The court shall record
criminal contempt to
the facts constituting
fine not exceeding
the offence with the
Rs.200 and in
statement, if any
default of payment As above 345(1)
made by the
of fine to simple
offender as well as
imprisonment for a
the finding and
term which may
sentence.
extend to one
month

11)To forward the When the forwarding

case to a court considers that
magistrate having As above 346(1) the case should not
jurisdiction to try the be dealt U/s 345
offence involved Cr.P.C.

14. Customs Act. 1) To allow a

1962 person whom a
custom officer is If such person so
Magistrate 102
about to search, to requires
be produced before
him

2) To direct search When there is

- do - 102
to be made ground for search

If he sees no ground
3) To discharge him - do - 102
for search
15. Drugs and
Magic If he has reason to
Any Gazetted
Remedies To enter, search believe that an
Officer authorised
(objectionable place and seize
by the State
8 offence under the
Advertisement) advertisements Act has been or is
Government
Act, 1954 being committed.

16. Drugs Control To Give sanction for

Act, 1950 prosecution of
offence punishable DM 15
under the Act

17. 1) To direct any

Electricity Act support stay or strut
Upon good cause
1910 to be fixed, to be DM 12
being shown
removed or altered.

2) To cause the
Interferes or likely to
trees structured or
interfere with the
object to be
DM 18 transmission of
removed or
energy
otherwise dealt with

199
 3) Authorise a
licensee to enter
any premises or
land for the
Executive Magistrate 20
purposes
mentioned in the
section

4) To be informed
By a person other
regarding
than a licensee or
transmission and
-do- 30 person to whom
use of energy in
sanction has been
certain causes.
granted
By distrain and sale of
5) To recover sums
any moveable
recoverable under
Executive Magistrate 54 property belonging to
certain provisions of
such person
the Act

18. DM will exercise

Emigration Act powers in cases
1922 To sanction where no protector of
prosecution emigrants or no
of offence D.M 28 person is appointed
punishable and empowered
under the Act under Section 45 of
the Act

a) In accidents other
To enquire into than those in
cause of accident or connection with any
Explosives Act, to direct a place, aircraft,
19. D.M 9
1884 subordinate carriage or vessel
Magistrate under the control of
to hold such enquiry the Armed Forces.

b) Enquiry by D.M. is
mandatory in cases
involving loss of
human life.

c) In other case he
may direct an E.M. to
hold enquiry (See
also Rules : Rule 63,
85 94, 106, 107, 108,
179 and schedule-IV
of the Rules (See
Rules 75(3) and 78
framed under the
Explosives Act, 1884)

200
 Explosives Rules, 1983

To search, seize,
The Chief controller &
enter inspect,
Controller of
examine any place, D.M.,E.M
Explosives has
any carriage etc. Commissioner of Police
jurisdiction over the
and to take samples Police Officers not
entire country.
of explosives below the Rule 179
possessed or rank of inspector of
Note : For matter of
manufactured in police in their respective
enquiry into accident
contravention of the jurisdictions.
U/S 9(1) of the Act,
Explosives Act,
Vide Rule 184
1884)
Gas Cylinder Rules 1981
(Framed under the Explosive Act, 1884)

Procedure laid down

1) To inquire into 9(1) Explosives
D.M./E.M in Rule 75
accidents Act, 1884
2) To take
When the accident is
evidence to identify
attended with loss of
dead bodies and -do- Rule 75(3)
human life
order intemment
thereof
The D.M. And E.M.
3) (a) To inspect can exercise the
Rule 78 Sec 7(1)
any place, aircraft, -do- power within their
Explosive Act
carriage or vessel respective jurisdiction

(b) To search for

explosives -do- -do-

(c) To take sample -do-

-do-
(d) To seize
-do- -do-
1) To be the
Factories Act, Inspector of
20. D.M. 8(4) For his district
1948 Factories

2) To enter and
He may examine
inspect factory to
D.M. as Inspector 9 any person for the
examine documents
purpose of the Act
3) To inquire into
the accident -do- 9

4) To require the
production of any
-do- 9
register

5) To seize or take
copies of any
-do- 9
register of
document

201
 When such article or
6) To direct substance is likely to
dismantling of -do- 9 cause danger to
article or substance health & safety of the
worker
7) To file complaint
Limitation-Three
or to sanction
months from the date
prosecution for
D.M. as Inspector 105 on which the offence
offences under the
came to his
Act
knowledge
1)To require the
master of any
vessel or the pilot of
any aircraft to
Information in
furnish information
respect of
Foreigners Act, in respect of D.M./C.P
21. 6(2) passengers or
1946 passengers or S.P
members of the
members of the
crew
crew on such
vessel or air craft as
the case may be

2) To authorise a
person to inspect
records of
information
maintained by Hotel
Keepers / Keepers D.M./C.P 7(3)
of any premises
regarding foreigners
accommodated in
such premises

Power to direct
search
Foreign Exchange of a person brought
22. Regulation Act, before him by an Magistrate 34
1973 officer of
Enforcement

1) To allow
production of a Of a person
Gold Control Act,
23. person about to be Nearest Magistrate 60 detained under
1968
searched Section 60 (2)

2) To direct search
or discharge -do- 60(3)

1) To notify a public
place other than
Immoral Traffic those
7(1) (b) read with
24. (Prevention) Act specifically DM
Schedule
1956 mentioned in
Section 7(1) (b)
within 200 metres of

202
which prostitution is
prohibited.
2) To Confer upon a
retired police or
military officer all or If he considers
any of the powers D.M 13(2)(A) necessary and
of special police expedient
officer.

3) To allow
production of
persons after his
D.M.
removal from 15(5)
SDM
brothel under Sub-
Section 4

4) To get such
persons medically Medical examination
As Above 15(5) (A)
examined is compulsory

Where the
Magistrate has
5) To direct police
reason to believe so
officer to enter
from information
brothel and to
received from police
remove any person As above 16
or any other person
living in brothel or is
authorized by the
carrying on
State Govt. or
prostitution
otherwise.

When the Magistrate

receives information
6) To issue notice from police or
to show cause otherwise, that any
within 7 days to the houseroom or place
owner, landlord etc. within a distance of
D.M/S.D.M. 18(1)
of the brothel as to 200 metres of any
why property should public place is being
not be attached for run or used as a
improper use. brothel or is being
used by prostitutes for
carrying their trade
7) a) To direct
eviction after
hearing the
occupier within 7 -do- 18(1)
days of the passing
of the order

b) To direct owner /
lessor etc. not to let
it out without
-do- -do-
permission of the
Magistrate

203
8) To order eviction
with out notice to When a person is
Convicting court 18(2)
show cause convicted U/s 3 or 7

9) (a) To order
applicant to be kept
in a protective
home or to be D.M./S.D.M 19(1)
provided care and
protection

b) To direct that the

applicant be kept in
proper custody -do- 19(2)
pending inquiry

Regard may be had

to the report of the
c) To order after
probation officer and
inquiry that -do- 19(3)
possibility of
applicant be kept.
rehabilitation

i) in a protective
institution, or

ii) in a corrective
institution. or

iii) under
supervision of a
person appointed
by the Magistrate

10)a) To record
substance of the
information
received that a D.M./S.D.M., or any
person who is E.M. empowered by 20 (1)
residing or the State Govt.
frequenting any
place is a prostitute

b) To order her to
appear and issue
notice to show
cause as to why she
should not be
required to remove -do- -do-
herself from the
place and be
prohibited from re-
entering.

204
 c) To inquire into
the truth of the
information after
-do- 20(3)
giving opportunity of
being heard.

d) To order that she

shall remove herself
from the place and -do- -do-
shall not re-enter

1) To enter and
Indecent search any place if
For entry into
Representation of he has reason to Any Gazetted Officer
private dwelling
25. Women believe that an authorized by the State 5
house, warrant is
(Prohibition) Act, offence under this Govt.
necessary
1986 Act has been or is
being committed
For manner of
seizing and packing
2) To seize any
vide Rules 3 and 4
advertisement,
-do- -do- of the Indecent
documents, book,
Representation
photograph etc
(Prohibition) Rules,
1987
3) To examine any
record, register or
other material object -do- -do-
and to seize them

During the absence

Indian Christian of the Marriage
To act as the
26. Marriage Act, D.M. 7 Registrar or his
Marriage registrar
1872 illness or temporary
vacancy.
1) Not to be
compelled to answer
any question as to
his own conduct in a
Except upon the
court as Magistrate
Indian Evidence special order of some
27. or as to any thing Magistrate 121
Act, 1872 other court to which
which comes to his
he is subordinate
knowledge in the
court as such
magistrate

2) Not to be
compelled to When he considers
disclose that public interest
Any public office 124
communication would suffer by such
made to him in disclosure
official confidence

205
3) Not to be
compelled to
disclose the sourse
of any offence Magistrate/Police/Reve It is based on public
125
including offence nue officer policy
against public
revenue

4) To forbid any Court includes all

indecent or judges & Magistrates
scandalous and all persons,
Any court including that
questions unless 151 except arbitrators
of E.M.
they relate to facts in legally authorised to
issue take evidence vide
Section 3
5) To forbid any
question intended to
insult or annoy or As above 152
which is needlessly
offensive in form
This section does not
authorize a judge to
compel any witnesses
to answer any
question which such
witness would be
6) To ask any entitled to refuse to
question in any from, answer under Section
at any time, of any 121 to 131
witness or of the -do- 165
parties about any
fact relevant or Note : Judge shall not
irrelevant ask any question
which would be
improper for any other
person to ask under
section 148 or 149 of
the Act

This section does not

authorize a judge to
compel any person to
7) To order
produce any
production of any
-do- 165 document when such
document or thing at
person would be
any time
entitled to refuse to
produce under
Sections 121 to 131

206
 If he thinks fit
To examine and
specially in a
Indian Stamp impound a
28. EM/Revenue court 33 proceeding under
Act 1899 chargeable
Chapter XII &
instrument
XXXVI C.P.C.
1) To permit
telegraph If during placement of
authorities to Telegraph Lines,
Indian Telegraph exercise Cable Chambers etc.
29. D.M./C.P. 16(1)
Act, 1885 power for placing the telegraph
and maintaining authority is resisted or
telegraph lines and obstructed
posts
On receipt of
application and
2) To order removal hearing both the
of line or post on applicant and the
property other than D.M 17(3) telegraph authority. he
that of a local may pass order
authority absolutely or
conditionally.

On the basis of
application of
telegraph authority he
may do so provided
3) To order removal
E.M. 18(1) that trees interrupt of
of trees
likely to interrupt
telegraphic
communication.

The compensation
awarded to the person
4) To award
Magistrate 18(2) interested should be
compensation
reasonable.

5) To order to abstain
For a period not
from dealing with E.M. 19)A(2)
exceeding one month
property.
6) To assess the
Where additional
apportionment of the
police force is
costs of Police force D.M. 33(2)
employed by the State
among the
Govt.
inhabitants
He may recover
money under distrain
7) To
warrant or sale of
recover
D.M. or Magistrate 33(3) movable property of
money payable
the defaulter within
U/s 33(2)
his local
jurisdiction or by suit.

207
 To be protected
A Judge means every
from civil and
person who is
criminal proceeding Any Executive or
empowered by law to
Judges for anything done or Judicial
give in any legal
30. (Protection) word spoken in Magistrate or Judge 3
proceeding definitive
Act, 1985 discharge of official acting
judgment
or judicial duty or judicially.
function.
(See Sec 2 of the Act).
1 ) To exercise powers
conferred on the board
or the Juvenile court For powers of board
Juvenile Justice by or under this Act
31. D.M./S.D.M. 7(2) vide Sections
Act 1986 where no Board on
Juvenile court has been 14,15,16,17
constituted for any
area.
Note : 1) No legal
practitioner shall be
entitled to appear
before a Board in case
or proceeding before it
expect with special
permission of the
Board vide S. 28 (3)

(2) For definition of

competent authority
please see S. 2(d)
which includes Board
and the Juvenile court.

For powers of
Competent authority
2) To function as vide Sec.27 to 35 and
Competent Authority 40. Summons
where no Board or D.M/S.D.M procedure to be
Juvenile Court has followed by the
been established. competent Authority
see See 39(1).

For powers of
Competent
2) To function as authority vide Sec.27
Competent Authority to 35 and 40.
where no Board or D.M/S.D.M Summons procedure
Juvenile Court has to be followed by the
been established. competent Authority
see Sec 39(1).

208
 The provisions of land
Acquisition Act, 1894
has been extended to
the entire Karnataka
land To enforce State with certain
32. Acquisition surrender of D.M/E.M 47 amendments vide
Act, 1894 land acquired land Acquisition Act
(Karnataka Extension
and Amendment) Act,
1961

To prevent from
To detain and send
begging publicly in
a pauper leper to
Any Magistrate any area specified u/s
Lepers Act, asylum or make him
33. Authorized by the State 3 Unless discharged
1898 over to the care of a
Government by the order of the
friend or
Board or D.M u/s 8 (1)
relative
Depends upon the
Mines Act, 1) To be the order of the Central
34. D.M. 5(3)
1952 inspector of Mines Government

To see whether legal

provisions are
2) To make inquiry observed and to
and examine any D.M. 7 ascertain safety and
person welfare of the
employees.

3) To search, seize and

take records D.M. 7

4) To give Permission
Owner, agent
to prosecute D.M. 75
manager etc.

Oil Mines Regulation, 1984 with reference to Mines Act, 1952

1 ) To be informed
D.M .as an Vide sec. 5(3), 2(1) of
about opening of 3
Inspector Mines Act
new mine
Agent or manager of
mine shall submit it on
2)To receive
D.M 4 or before 20th January,
quarterly returns. April, July and
October every year.
Form No. III shall be
3) To receive or followed by the owner.
require annual agent or manager of
return. D.M. 5
mines

4) To be informed
about change of The Mines Act Sec.2
ownership or (1) or 5(3) empowers
address of the D.M. 6 the D.M.
owner of mines.

209
 Notice of accident to
5) To be informed be given to Regional
about accident of D.M 7 Inspector also. Form
mines IVA to be followed.

6) To be informed
about Notice to be given to
disease of D.M 8 D.M in Form V
employees.

If he has reason to
Narcotic Drugs Any officer of Gazetted believe that any
and Psychotropic 1) To issue warrant rank of certain Depts. of 41(2) person has committed
35. Substances Act. and authorisation Central and State Govt. an offence punishable
1985 empowered under Chapter IV of
the Act.

If he has reason to
believe that Narcotic
drug or psychotropic
substance in respect
of which an offence is
Any officer punishable under
of Central Chapter IV has been
2) To enter. search. Govt or
State Govt specially committed or any
seize. detain arrest empowered document or article
without warrant or (not below 42
authorisation relating to offence is
the rank of kept concealed in any
between sunrise a peon or constable) of
and sunset Excise. Police, Custom. building conveyance
Revenue. or any other or enclosed place. He
dept. shall record grounds
for the belief and
reasons for not
obtaining a search
warrant or
authorisation.

Note: For power to

make order detaining
certain persons
including foreigner
vide sec.3 of
Prevention of Illicit
Traffic in Narcotic
Drugs & Psychotropic
Substances
Ordinance. 1988

When he has reason

3) To seize and to believe that an
arrest in public offence under Chapter
places As above 43 IV has been
committed.

If there is reason to
4) To stop and suspect the provisions
search conveyance As above 49 of the Act
contravened.

210
 5) To invest officers
of certain
Departments with State Govt. may be
powers of the Central Govt. 53(1) consulted.
Officers in charge of
Police Station.

6) As above State Govt. For investigation of

53(2)
offence under the Act.
7) To take charge An officer in charge of
of article seized Police Station 55

Upon notice given or

8) To assist each
All officer in change of request made in
other 56
Police station carrying out the
provisions of the Act
9) To report all parti-
culars of search and All officers of
seizure re to his Whether any arrest or
immediate official departments mentioned 57
seizure is made
superior in section 42.

To detain any
person to prevent
him from acting in
any manner Central or State Govt/ Provided State Govt.
National Security prejudicial to the D.M/Commissioner of vests them with power
36. Act 1980 defence and Police. 3 U/s 3(3)
security of India or
to the maintenance
of public order etc.,

To administer oaths Any Magistrate / Court

37 Oaths Act, 1969 or Judge 3

If he is satisfied that
there is reasonable
Official Secrets Act, To grant search S.D.M 11
ground that an offence
38 1923 warrant under this Act has
been or is about to be
committed.

Nearest
Petroleum Act, 1) To be informed 27
39. Magistrate
1934 about accident

2) To inquire into 28 Read with Section 176

Any Magistrate Cr.P.C
the case of accident

Petroleum Rules, 1976

See Article 3 and 4 of
1) To issue licence First Schedule
to import and to Rule 141 read appended in the
store Petroleum District Authority with Petroleum Rules.
Class A in quantity This may be read in
Schedule 1 conjunction with
not exceeding 300
litres. Sec.29 of the
Petroleum Act, 1934.

211
2) To issue licence The word "District
to import Petroleum. Authority" also
Class B otherwise 141 read with includes
than in bulk in District Authority Schedule-I Commissioner of
quantity not Police, or Deputy
exceeding 25,000 Commissioner of
Iitres. Police, D.M

D.M. includes A.D.M.,

S.D.M. vide Rule 2(x)
3) To grant or refuse Where there is new
District Rules
no-objection application for licence
Authority 144,150
certificate.
Reasons to be
recorded for refusal

1) See also Petroleum

Rules, 1976, Rule
2(ix), (x), Schedule) 1
of the Rules.

2) Carbide of Calcium
Rules 1937 – Rule 39
and Sch.I of the Rules

a) D.M. empowered
under Sec. 13 of the
Act vide Govt. of India
Notification No. 826
(1) dt. 22.3.1937
amended by
notification No .M)826
(a) dated 15.9.37

(b) D.M. empowered

under Sec. 14 G.O.I.
notification No. 826
(2) dated 22.3.37
amended by
notification No. 826(3)
dated 22.3.37
amended by
Notification No. 826
(5) dated 15.9.37

(c) D.M. empowered

under Sec. 26 vide
G.O.I. notification No.
826 (7) dated 15.9.37

Note : Prior hearing

and recording of
reasons are
necessary for refusal
Vide Rule 150

212
 The licensing
authority refusing to
grant, amend, renew
4) To amend Licensing
148 or transfer the licence
licence Authority
shall record his
reasons for such
refusal in writing
5) To renew licence -do- 149
Prior hearing and
recording
of reasons are
6) To cancel No - District
necessary for
objection Authority
151 cancelling a "No
Certificate granted or State
Objection Certificate"
under Rule 144 Govt.
granted under Rule
151

A licence is liable to
be suspended or
cancelling by an order
of the Licensing
Authority for any
7) To suspend and licensing contravention of the
153
to cancel licence Authority Act or of any Rule or
of any condition
contained in such
licence or by order of
Central Government

Licensee as

- do -
8) To transfer mentioned in No.1
157
licence for storage and 2.

If the believes or
suspects that any
poison is possessed
To issue search
40. Poisons Act, 1919 D.M/S.D.M 7 or sold or kept
warrants.
concealed in
convention of the Act.

Press and 1) To allow keeper For change of place

Registration of Printing-press to of the press, anew
41. D.M/S.D.M 4
of Books Act, make declaration. declaration is
1867 necessary.
2) To allow printer
or
publisher of
As above 5(2)
newspaper
appear in person

213
 3) (a) To
authenticate the
As above 6
declaration and

b) To attest it

4) (a) To allow new

declaration to be
made by a person As above 8
who ceased to be a
printer or publisher
a) By persons who
have signed a
declaration and
(b)To authenticate
do 8 subsequently ceased
such declaration.
to be printers or
publishers.

a) Depends on his
5) (a) To enquire
declaration and
whether the name
satisfaction of
of the editor has do 8-A
Magistrate after
been incorrectly
inquiry.
published.
b) That the
(b) To certify declaration is true

If Magistrate is of the
opinion and is
satisfied after giving
him hearing and after
6) To cancel enquiry that
declaration in newspaper is
do 8-B
respect of a published in
newspaper contravention of the
Act or Rules and
declaration was made
falsely.

To the Press
Registrar for
7) To send a copy certificate of
of the declaration in registration in from-V
do 19-C
respect of (See also rule 10 of
newspaper the Registration of
Newspaper (Central)
Rules, 1956
Prevention of
Black Marketing
and
Maintenance 1 ) To make orders
42. D.M/C.P 3
of Supplies of for detention
Essential
Commodities
Act,1980

214
 2) To make a report
in writing of the fact
that the person
against whom a Non appearance of
detention order has person absconding
been made has despite due notice
D.M/C.P 7
absconded, so as to before such officer is
attract the operation a
of Sec.82 to 85 of cognizable offence.
Cr. PC.

Prevention of 1) To direct If in his opinion it

Any
Cruelty to immediate would be cruel to keep
43. Magistrate/C.P/Dist. 13(2)
Animals destruction of the the animal alive
S.P.
Act,1960 animal.
NOTE: The term
magistrate occurring
in sec. 13 (2) appears
to include an E.M
also. The expression
has been used in the
company of
Commissioner of
Police and Supt. of
police, Hence, the
function is
administrative in
nature. Reference
should also be made
to Sec.3(4)(b) Cr.P.C.
1973

If he has reason to
2) To issue search believe that an
warrants or enter S.D.M. 33 offence under this
himself for search. Act is about to be or
has been committed.
3) To prescribe
rates
of the cost of
transporting to,
maintenance and D.M/C.P 35(4)
treatment of
animals in an
infirmary or
pinjrapole

215
 The Central Govt. or
State Govt. or any
If satisfied with a
Prevention of officer of Central Govt.
view to preventing
illicit Traffic in not below the rank of
any person from
Narcotic Drugs 1) To make orders Joint Secretary or any
44. 3 engaging in illicit
& Psychotropic for detention officer of State Govt.
traffic in Narcotic
Substances Act, not below the ranks of
Drugs & Psycho-
1988 Secretary specially
tropic Substance
empowered in that
behalf
If there is reason to
believe that the
2) To make report to
person is
the Metropolitan
The appropriate Govt. 8 absconding or
Magistrate or
concealing himself
Magistrate I Class
so that the order
cannot be executed
3) To revoke or
modify detention The Central
12
order Govt.

4) To release The Central

13
temporarily Govt.
Note: No suit or
other legal
proceeding shall lie
against the Central
Govt. State Govt. or
any person for
anything done in
good faith under this
Act (Sec. 14)
1) To give Notice to be given for
Prevention of permission to hold holding public
Seditious public meeting in meeting at least 3
45. D.M/C.P 4(1)
Meetings any proclaimed days before
Act,1911 area. to the DM or C.P as
the case may be.
D.M.or any
2) To cause report
Magistrate of the 1st They may depute
of the meetings to 4(2)
class authorized by police Officer
be taken.
the D.M.
If in the opinion of the
authority, such
meeting
may promote
disaffection,
D.M/C.P.as
3) To prohibit public disturbance of the
the case .5
meetings. public tranquility. For
may be.
the meaning of
‘Promotion’ vide AIR
1923 Lohore 342 at p.
343

216
 D.M/ C.P. as
4) To cause arrest For violation of the
the case 7
without warrant Act
may be.
5) To take
cognizance of
S.D.M. 8
offence under the
Act.
Such an order is
required to be
counter-signed by the
District Judge or the
To make order for
District Magistrate as
Prisoners production of a
Civil or the case may be
(Attendance in prisoner in court
46. Criminal 3 unless It is made by a
Courts) Act, for giving evidence
court judicial Magistrate,
1955 or answering a
First Class vide
change
Section 3(3), read
with the First and
Second Schedules of
the Act.
1) To appoint any
Probation of Probation officer in
D.M/Trying
47. Offenders Act, place of the person 13
court.
1958 named in the
Supervision order
Power of inspection
and certain other
2) To exercise powers have been
control over D.M. 13(3)
conferred upon the
probation officers.
D.M. under Rules
framed
1) To hold an
enquiry
Protection of An officer 10-A
U/s 10 A in the He may act on being
Civil Right not below Read
48. context of appointed by the
Act 1955 & the rank of with
consideration for State Govt.
Rules 1977 S.D.M. Rule 3
imposition of
collective fine.
The inquiry officer
shall follow summary
2) To call for
procedure as per
information and
do do Chapter XXI Cr.P.C
documents for that
purpose of enquiry.

Report to be
submitted to the
Govt. within six
weeks
3) To be protected
from suit or do 14-A If acted in good faith
prosecution.

217
 Note: (a) Protection
of Civil Rights Act,
1955 over rides other
laws. Vide S.16

(b) The Executive

Magistrates may
playa
prominent role in the
enforcement of this
Act.

Upon Bank's request

D.M/ Any D.M may direct his
Public Debt 1) To record
49. Magistrate 14(1) subordinate
Act 1944 evidence
empowered. Magistrate to record
evidence
2) To administer
oath. As above 14(3)

To be informed Obligation is on the

Railways Act,
50. about Railway D.M/ S.P 83 Station Master to
1890 Accident. inform
Any a) Depends on the
Magistrate/ satisfaction that
Registration To attest the Power
51. Registrar/ 33 power of attorney has
Act.1908. of attorney.
Sub- been voluntarily
Registrar executed
Scheduled Castes 1) To declare an
And Scheduled Officer not below the
area to be an area
52. Tribes (Prevention rank of 17
of Atrocities) Act, prone to atrocities. Dy.SP/D.M/SDM/EM.
1989
2) To take
preventive action for
keeping peace and
good behavior and -do- 17
maintenance of
public order

To authorize
Terrorist Affected 30 days & one year
detention of the
53. Areas (Special E.M. of J.M 15 (2) (b) as the case
accused U/s 167
Courts) Act, 1984 may be.
Cr.P.C.
Depends upon
Terrorist and
1) To make orders D.M / Any Central
Disruptive
to combat terrorist officer not Government's
54. Activities 5(2)(a)
acts and disruptive below his notification and
(Prevention)
activities rank empowered authorization.
Act, 1985

218
 Note: No suit or
prosecution shall lie
for any act done
under the Act bona-
fide act done under
the Act (Sec.24)

60 days and one year

2) To authorize
as the case may be
detention of the E.M. 17(2)
instead of 15 days or
accused U/s 167 J.M. (a) (6)
60 / 90 days as in Cr.
Cr.P.C., 1973
P.C. respectively.

Terrorist and Disruptive Activities (Prevention) Rules 1986

Terrorist and 1) To record

Disruptive statements U/S.
Activities 164 Cr. P.C E.M/ Special E.M.
55. (Prevention) Act, relating to 20(3)
1987 offence under
the Act.

2) To authorise 60 days or One year

detention of the as the case may be
accused U/S do instead of 15 days or
167 Cr.P.C 1973 60/90 days as in Cr
P.C respectively

Terrorist and Disruptive Activities (Prevention) Rules, 1987

When he has reason

to believe that any
D.M/ Any
place is reasonably
Officer
To issue search suspected of being
having the 14
warrants used for committing
power of
the offence referred to
D.M
in Section 3 or 4 of
the Act
Unlawful
1) To make a list of D.M/Any Depends on the issue
Activities
56. all movable Authorised 8(2) of notification of
(Prevention)
properties Officer. Government
Act 1967
Depends on his
2) To prohibit D.M. opinion that any
8(3)
using articles article may be used
for unlawful association.
3) To prohibit any
non-resident to To enter into the
enter in to the D.M 8(4) notified
notified place places

4) To regulate
conduct of persons D.M. 8(5)

219
 5) To be protected
from prosecution D.M/Any
Except with the authorised 17
permission of officer.
Central Govt.
Note: No proceeding
taken under this Act
by D.M. or Govt .can
be called in question
in Court (See Section
16)
1) To summon the
parent or guardian
of the child and
demand his
explanation and if When Supdt. of
such explanation is vaccination reports
not satisfactory, before the D.M that
Vaccination Act,
57. make an order in D.M. 18 his notice requiring
1980
writing directing the child to be
such parent of vaccinated is not
guardian to comply complied with.
with the notice given
by the Suptd. before
a specified date.

2) To appoint a
Magistrate on his
behalf for this D.M. 18
purpose

3) To deal with the If the order of D.M .is

disobedience as not obeyed by the
offence punishable D.M. 18 parent or guardian
U/s 22 without just cause or
just excuse
To make an order
directing the
encroacher to
remove or to vacate
the property and in When the wakf
default, evict the commissioner applies
before the S.D.M. for
58. Wakf Act 1954 encroacher To S.D.M. 36-E
that purpose. The SDM
search any place may take police
where wireless assistance
telegraphy
apparatus is kept or
concealed

To search any place

where wireless
Wireless Where offence is
telegraphy Any officer empowered
59. Telegraphy Act, 7 Committed which is
apparatus is kept or by Central Govt.
1933 punishable u/s 6
concealed

220
 (2) LIST OF STATE ACTS

He shall determine
Karnataka Cattle
1) To establish which
1. Trespass D.M 3
cattle pounds village or areas will
Act,1966
use the pound
2) To control
pounds and fix
For feeding and
charges for feeding
D.M 4 providing water to the
and watering of
impounded cattle
cattle

3) To appoint
pound-keeper D.M 5

4) Specify pounds
to which seized
D.M. 7(3)
cattle are to be sent

5) To appoint
officers for dealing
with unclaimed D.M. 15
cattle

1) Licensing
authority D.M. 3
Karnataka
Cinemas
2. 2) To issue licence
(Regulation)
for exhibition of
Act, 1964
cinematograph films D.M 5

3) Matters to be
considered by
D.M. 6
licensing authority

4) Power of
licensing authority to
limit number of
D.M. 7
places that can be
licenced

5) Restriction on
power
of licensing authority D.M. 8

6) To grant
permission for
construction or
reconstruction of
D.M. 11
buildings or places
for exhibition of
cinematograph films

221
 7) Power to issue
directions to show
slides in public D.M. 13
interest.

8) Power to
suspend exhibition
of films in certain D.M. 15
cases

9) Power to
suspend licence
pending the result of D.M. 16
prosecution
10) Power to revoke
or suspend a D.M.
licence 17

NOTE: See also

Karnataka Cinema
(Regulation) Rules:-
Rules 5, 25, 26, 27,
28, 31, 32, 36, 37, 39,
40, 41, 85, 86, 88, 96,
97, 98, and 113.
1) Directing a
Criminal Law person to be Act extends the
and Identification photographed provision of Criminal
of Prisoners under Sec.5 of the Law Amendment Act,
D.M/ 1932 and Identification
3. Karnataka Identification of 5 of
S.D.M
Extension and Prisoners Act, 1920 Prisoners Act, 1920
Amendment) Act, (Central Act 33 of to the State
1975 1920)

2) Ordering of
destruction of
photographs and
records of
measurements etc
on D.M/
acquittal under S.D.M/ 7
Section 7 of the C.P
Identification of
Prisoners Act, 1920
(Central Act 33 of
1920)

222
 1) Power to
order for the
return of the
moveable
Karnataka Debt
property pledged by
4. Relief Act, S.D.M 4(6)
a debtor in case the
1980
creditor fails to
return under
Section 4 of the Act

2) Power to put the

debtor in
The power can be
possession of
exercised either on an
Mortgaged property S.D.M. 5(2)(b)
application or suo-
on failure of the
motto
creditor to do so.

3) Determination of
debtors entitled to
relief u/s 4 and
issue of directions S.D.M. or E.M.
5
to creditors for authorised
production of
pledged articles

4) Power to order
search and seizure
of pledged articles
do 5
and their deliver to
debtors

1) Power to order
closure of D.M
liquor shops for the
preservation of
Karnataka Excise
5. public peace or for D.M. 21(1)
Act, 1965
the prevention of the
spreading of any
infectitious diseases

2) Power to order
closure of E.M
liquor shops when
riot or unlawful E.M. 21(2)
assembly is appre-
hended or occurs

223
 1) Power to issue
notice to habitual
offenders to appear
Karnataka and furnish/
Habitual information and
6. Offenders Act, allow finger and D.M. 4
1961 palm impression!
foot prints and
photographs to be
taken

2) Power to after or
cancel entries in the
Register of Habitual D.M. 5
Offenders

3) Power to order
the finger and palm
impression, foot
prints and
photographs of any D.M. 6
registered offender
to be taken at any
time

4) Power to direct
the registered
offender to report
himself to D.M or
such other
authorities
specified by D.M at
or such D.M. 7
intervals and also to
notify his absence
or in tended
absence from his
ordinary place of
residence

5) Power of the
D.Ms
concerned in case
the
registered offender D.M. 8
changes his
ordinary
residence

6) Power to cancel
the entries D.M in
the Register of
Habitual Offenders D.M. 9
before the expiry of
prescribed period

224
 7) Power to direct
habitual offenders
to receive D.M. 14
corrective training

1) To exercise
powers of general
control in the matter In exercising such
of administration of control, the D.M. shall
Karnataka Police police in the district be governed by such
7. D.M. 16
Act, 1963 or art of the district rules and orders as
through the the Govt. may make
Superintendent of in this behalf.
Police

NOTE: In areas for

which Commissioners
of Police have been
appointed, they shall
exercise the powers
of D.M. under the Act
(Sec.7)
2) To requite
reports from
Superintendent of
Police in matters
connected with
D.M. 17
crimes, habitual
offenders,
prevention of
disorder etc.

3) (i) To require SP
to replace police
officers below the
rank of Inspector on
observing any
marked D.M. 18
incompetence or
unfitness for the
locality or for
the particular duties

(ii) To report to
I.G.P
concerned on the
conduct of any
D.M. 18
police officer of the
rank of Inspector
and above.

4) To appoint
special To exercise powers,
police officers in the E.M the E.M should be
circumstances specially 19 specially empowered
mentioned in empowered by the State
Section 19 Government

225
5) To make orders
for regulation of
traffic and for
preservation of D.M 31
orders in public
places etc

6) To make rules
prohibiting disposal For exceptions sell
of the dead at D.M 33 proviso to Section 33
places other than (1)
set apart
Such prohibition to
remain in force for
7) To prohibit
more than fifteen
certain
days, sanction of
acts for prevention D.M 35
Government is
of
necessary [Section 35
disorder
(3) proviso]

To exercise the power

Government should
8) To prohibit have extended the
continuance provisions of this
of music, D.M. 36 Section to areas
sound or concerned by
notification in the
noise etc Gazette

9) To issue
orders
regardng
maintenance
D.M. 39
of order at
ceremonials,
religious
functions etc.
To exercise this power
Govt. should extend
10) To discontinue the provisions of this
the use of any Section to areas
premises by dis- D.M./S.D.M. 41
orderly persons concerned by
notification in the
Gazette

11) (i) To prescribe

regulations to be
To be done in
observed by consultation with the
persons visiting Health Officer of the
place of area concerned or the
D.M. 42 prescribed officer of
piligrimage, fair etc
where there is the Department of
likelihood of Public Health
outbreak of
epidemic

226
(ii) To levy
reasonable fees on
persons visiting the
places mentioned in
11 (i) to meet the
expenses regarding D.M. 42 (2)
sanitation, and
preservation of
public order

iii) To recover such

expenses from the
municipal body in D.M. 42 (2)
case the place of
assemblage falls
within its jurisdiction
Note : All rules /
regulations / orders
made by the D.M.
under Sections 31,
35, 36, 39, 41 and 42
are governed by such
rules/orders as the
Government may
issue from time in this
behalf.
12) To employ
additional police at
large works/ place
of public
amusement / public
works like railway/
canal/ manufactory/
commercial concern
where large labour
force is employed D.M. 47
and to recover the
cost of such
employment from
persons concerned
who execute the
work or organise
public amusement
etc

13) To decide the

amount to be paid in
case of disputes
and to recover such
amount from the
concerned as D.M. 48
arrears of land
revenue through
D.C of the revenue
district.

227
14) To determine
the amount of
compensation
payable to persons
in respect of loss,
damage, death or
grievous hurt D.M. 50 (3) & (4)
caused due to acts
of an unlawful
assembly in a
disturbed area and
to have the same
recovered as tax

15) To award or
apportion the
compensation D.M. 51
among
persons entitled
NOTE: The functions
under Section 50
and 51 shall be
discharged by the
D.M subject to any
general or special
orders of Government
issued in this behalf -
Section 52
16) To disperse
gangs or D.M
bodies of persons D.M 54
calculated to cause
danger or alarm etc
To exercise the
powers under this
Section, Government
should extend the
provisions of the
17) To remove D.M/.D.M specially Section to the areas
persons about to empowered 55 concerned as well as
commit offences to empower S.D.Ms.
Mere extension of the
provisions of the
Section gives power to
D.M

Government have
extended the
provisions of the
Section to the entire
State of Karnataka
vide Notification HD
19 PCR 82 dated 28th
May 1982 and S.D.Ms
have also been
empowered vide
notification No. HD 27
PCR 82
dated 2nd March 1982

228
18) To remove D.M/S.D.M specially
persons convicted empowered 56
of certain offences

19) (i) To arrest

persons
contravening the
provisions of
Notification issued
under Section 35 or
Orders issued
under Secs. 36 or E.M. 72
38 and to seize any
object or thing used
or about to be used
in contravention of
such notifications or
order

(ii) To dispose of
the thing or object
seized under D.M 72
Section 72.

20) To issue
warrants to police
officer not below the
rank of S.l to enter.
search and seize D.M./S.D.M. 81
instruments of
gaming, money,
etc

21) To order
redemption of
weapon forfeited
for being carried D.M. 97
without authority by
imposing
fine
22) To authorise
police officers to
secure compliance
with court's D.M. 105(4)
directions under
Section 105 (2)
23) To exercise The power is subject
general control over to general control and
administration of D.M. 130
village police directions of the
Government
24) To delegate
powers of D.M to Subject to sanction of
S.Ps or E.Ms D.M. 131
Government
25) To appoint
Village Police and
place them under D.M. 132
Police Patel

229
 26) To get reports
from police patel on
security
arrangements made
against robbery. E.M. 135
breach of peace and
acts injurious to
public etc
27) To punish the
village police for
neglect of duty by
imposing fine or by D.M. 137
ordering suspension
from office

The Act is applicable

The Mysore To Authorize only to certain areas
Prosecution for
8. Power Alcohol contravening the D.M. 6 of the State. Please
Act, 1939 provisions of the Act see section 1 of the
Act
1) To hold an
enquiry to satisfy as
to a person
produced before
Karnataka him has committed
Prevention of an offence of
9. begging and order E.M. 11
Beggary Act,
1975 his release in case
he is satisfied on his
personal bond or
with surety

2) To order
detention of a
person on
conviction for
having
contravened
the provisions of E.M. 12 & 13
Section 3 in the
nearest Relief
Centre for a period
not exceeding
twelve months

3) To revoke or
modify order
passed under E.M. 3
Section 12 and 13

230
 Karnataka
Prevention of
Dangerous Power to make
Activities of Boot orders State Government
leggers, Drug detaining certain
persons with a view may periodically
Offenders,
10. a prevent them from D.M/C.P 3 authorise the D.M/
gamblers
acting in a manner C.P to exercise the
Goondas, prejudicial to the power
Immoral Traffic maintenance of
Offenders and public order
Slum Grabbers
Act, 1985
The orders are
To issue orders not subject to general or
inconsistent with special directions as
the provisions of may be given by
the Act and Rules Government
to Superintendent
Karnataka
of Prisons other
Prisons
11. than Central Prison D.M 10(2) Regarding the role of
Act 1963
in respect of a D.M vis) a-vis
and Rules, 1974
prison, subject to prisons/prisoners, see
to the ratification of Rules 68, 69, 70, 164,
the order by the 186, 187, 189 190
Inspector General and 192 of the
of Prisons Karnataka Prisons
Rules, 1974
Power to issue
search warrants
authorizing officers
mentioned in
Karnataka Sales 28(2)(ii)
12. Section 28 to enter E.M
Tax Act,1957 proviso
residential
accommodation
and conduct search

1) To prohibit the
use of any house or
building for human
Public Health
13. habitation until it is E.M. 47
Act 1944
rendered fit
therefore

2) To order closure
of lodging home in
the interest of
public health in
case of occurrence E.M. 68
of cases of notified
diseases in such
lodging home.

231
3) To order the
removal and
disposal of body of
a person who has
died while suffering
E.M. 75
from notified
disease after the
expiry of time
specified

4) Power to prohibit
an assembly of
more than fifty
persons in any
place in the event of E.M. 76
prevalence of a
notified disease in
any local area

5) Power to exempt
person/ child for. The Act is applicable
vaccination or to only certain areas
innoculation subject E.M. 77(3) (a) of the State. See
to undertaking being Section 1 (a) of the
given
Act

232
 APPENDIX –II
GOVERNMENT OF KARNA TAKA

NO. HD 10 PCR 74 Karnataka Government Secretariat,

Vidhana Soudha,
Bangalore, dated 27th March 1974,

NOTIFICATION –I

In exercise of the powers conferred by Sub- section (1) of Section 20 of the

Code of Criminal Procedure, 1973 (Central Act 2 of 1974), the Government of Karnataka
hereby appoints with effect from 1st April 1974 the Deputy Commissioner of a
District, the Special Deputy Commissioner of a District, the Assistant Commissioner in
charge of a Revenue Sub-division in a District, the Headquarters Assistant to the Deputy
Commissioner of a District and the Tahsildar in charge of a Revenue Taluk in a District,
to be Executive Magistrates in such District.

By Order and in the name of the

Governor of Karnataka

sd/
(H. Veerabhadraiah)
Additional Secretary to Government,
Home Department

GOVERNMENT OF KARNATAKA
NO. HD 10 PCR 74 Karnataka Government Secretariat,
Vidhana Soudha,
Bangalore, dated 27th March 1974,

NOTIFICATION –II

In exercise of the powers conferred by Sub-Section (1) of Section 20 of the

Code of Criminal Procedure, 1973 (Central Act 2 of 1974) and in supersession of all
previous orders on the subject, the Government of Karnataka hereby appoints with
effect from 1st April, 1974 the persons specified in Column (2) of the Table below, who
are appointed as Executive Magistrates in Notification I. No HD .10 PCR 74, dated
27th March 1974 and Notification IV No HD 10 PCR74 dated 27th March, 1974 to be
District Magistrates for the district or the. Metropolitan Area specified in the
corresponding entries in Column(3) thereof.

233
 TABLE

SI. Persons District or Metropolitan Area

No.

Metropolitan Area
Deputy Commissioner,
1. of the City of Bangalore
Bangalore District
Deputy Commissioner, Revenue District of Bangalore
2. Bangalore District

Deputy Commissioner, Revenue District of Mysore

3. Mysore District

Deputy Commissioner, Revenue District of Kolar

4. Kolar District

Deputy Commissioner, Revenue District of Tumkur

5. Tumkur District

Deputy Commissioner, Revenue District of

6. Chitradurga District Chitradurga

Deputy Commissioner, Revenue District of Hassan

7. Hassan District

Deputy Commissioner, Revenue District of Chickmagalur

8. Chickmagalur District

Deputy Commissioner, Revenue District of Shimoga

9. Shimoga District

Deputy Commissioner, Revenue District of Belgaum

10. Belgaum District

Revenue District, of North Kanara

Deputy Commissioner,
11. District
North Kanara District

Deputy Commissioner, Revenue District of Bijapur

12. Bijapur District

Deputy Commissioner, Revenue District of Mandya

13. Mandya District

Deputy Commissioner, Revenue District Bidar

14. Bidar District

234
 Deputy Commissioner, Revenue District of Dharwad
15. Dharwad District

Deputy Commissioner, Revenue District of Gulbarga

16. Gulbarga District

Deputy Commissioner, Revenue District of Raichur

17. Raichur District

Deputy Commissioner, Revenue District of Mandya

18. Mandya District

Deputy Commissioner, Revenue District of South Kanara

19. South Kanara District

Deputy Commissioner, Revenue District of Kodagu

20. Kodagu District

Deputy Commissioner, Revenue District of Bellary

21.
Bellary District

By Order and in the name of the

Governor of Karnataka

sd/
(H. Veerabhadralah)
Additional Secretary to Government,
Home Department

235
 GOVERNMENT OF KARANTAKA

NO. HD 10 PCR 74 Karnataka Government Secretariat,

Bangalore, dated 27th March,1974.

NOTIFICATION III

Bangalore, dated 27th March 1974

S.O. 530 - In exercise of the p0wers conferred by Sub-section (2) of Section 20 of the
Code of Criminal Procedure 1973 (Central Act 2 1974) and in supersession of
Government Notification No. HD 17 PCR 65, dated the 4th May 1966 and Notification
No. HD 33 PCR 73, dated the 6th December 1973, the Government of Karnataka hereby
appoints with effect from 1 st April, 1974, the Special Deputy Commissioner of a
District al)d the Headquarters Assistant to the Deputy Commissioner of a District
who are appointed as Executive Magistrates in Government Notification I No. HD 10
PCR 74, dated 27th March, 1974 to be additional District Magistrates in such District.

By Order and in the name of the

Governor of Karnataka

sdl-
(H. Veerabhadralah)
Additional Secretary to Government,
Home Department.

Published in Karnataka Gazette (Extraordinary) Part IV-2C (ii) dated 27th March 1974

236
 GOVERNMENT OF KARANTAKA

NO. HD 10 PCR 74 Karnataka Government Secretariat,

Bangalore, dated 27th March,1974.

HOME SECRETARY

NOTIFICATION IV

Bangalore, dated 27th March 1974

S.O 531- In exercise of the powers conferred by Sub-section (1) of Section

20 the Code of Criminal Procedure 1973 (Central Act 2 of 1974), the Government of
Karnataka hereby appoints with effect from 1st April. 1974 the persons specified below
as Executive Magistrates in the Metropolitan Area declared in Notification No. I. LAW 53
LCE 74, dated 20th March, 1974.

1. The Deputy Commissioner, Bangalore District,

2. The Spl. Deputy Commissioner, Bangalore District.
3. The Headquarters Asst. to the Deputy Commissioner Bangalore District.
4. The Asst. Commissioner, Bangalore Sub-Division, Bangalore.
5. The Tahsildar, Bangalore North Taluk, Bangalore
6. The Tahsildar, Bangalore South Taluk, Bangalore.

By Order and in the name of the

Governor of Karnataka

sdl-
(H. Veerabhadralah)
Additional Secretary to Government,
Home Department.

Published in Karnataka Gazette (Extraordinary) Part IV-2C (ii) dated 27th March 1974

237
 GOVERNMENT OF KARANTAKA

NO. HD 10 PCR 74 Karnataka Government Secretariat,

Vidhana Soudha,
Bangalore, dated 3rd August 1974.

NOTIFICATION V

In exercise of the powers conferred by Sub-Section (1) of Section 20 of the

Code of Criminal Procedure, 1973 (Central Act 2 of 1974), the Government of Karnataka
hereby appoints the Commissioner of Police, Bangalore City, as Executive Magistrate in
the Metropolitan Area Declared in Notification- I NO.1 LAW 53 LCE 74, dated 20th
March 1974.

By Order and in the name of the

Governor of Karnataka

sdl-
(H. Veerabhadralah)
Additional Secretary to Government,
Home Department.

GOVERNMENT OF KARANTAKA
NO. HD 10 PCR 74 Karnataka Government Secretariat,
Vidhana Soudha,
Bangalore, dated 6th July 1974.

NOTIFICATION VI

In exercise of the powers conferred by Sub-Section (2) of Section 20 of the

Code of Criminal Procedure, 1975, (Central Act 2 of 1974), the Government of
Karnataka hereby appoints the Commissioner of Police, Bangalore City, who has been
appointed as Executive Magistrate in Government Notification No. HD 10 PCR 74, dated
6th July 1974 to be an Additional District Magistrate in the Metropolitan Area declared in
Notification NO.1 LAW 53 LCE 74 dated 20th March 1974.

By Order and in the name of the

Governor of Karnataka
sdl-
(H. Veerabhadralah)
Additional Secretary to Government,
Home Department.

238
 GOVERNMENT OF KARNATAKA

NO. HD 10 PCR 75 Karnataka Government Secretariat,

Vidhana Soudha
Bangalore, dated 21st May 1975.

NOTIFICATION VII

In exercise of the powers conferred by Sub-Section (4) of Section 20 of the

Code of Criminal Procedure, 1973 (Central Act 2 or 1974), the Government of Karnataka
hereby places with effect from 1-6-1975, the Executive Magistrates specified in
Column (1) of the Table below, in charge of the Sub-Division specified in the
corresponding entry in Column (2) thereof;
TABLE

SI.
No. Executive Magistrate Sub-Division

1. Assistant Commissioner, Revenue Sub-division of Bangalore

Bangalore Sub-division

2. Assistant Commissioner, Revenue Sub-division of

Doddaballapur Doddaballapur Sub-Division

3. Assistant Commissioner, Revenue Sub-division of

Ramanagaram Sub-division Ramanagaram

4. Assistant Commissioner Tumkur Revenue Sub-division of Tumkur

Sub-division

5. Assistant Commissioner Tiptur Revenue Sub-division of Tiptur

Sub-division

6. Assistant Commissioner, Revenue Sub-division of Madhugiri

Madhugiri Sub-division

7. Assistant Commissioner, Kolar Revenue Sub-division of Kolar

Sub-division

8. Assistant Commissioner, Revenue Sub-division of

Chikkaballapur Chickkaballapur Sub-division
9. Assistant Commissioner, Revenue Sub-division of Shimoga
Shimoga Sub-division

239
SI.
No. Executive Magistrate Sub-Division

10. Assistant Commissioner, Sagar Revenue Sub-division of Sagar

Sub-division

11. Assistant Commissioner, Revenue Sub-division of

Chitradurga Sub-division Chitradurga

12. Assistant Commissioner, Revenue Sub-division of

Davanagere Sub-division Davanagere

13. Assistant Commissioner, Mysore Revenue Sub-division of Mysore

Sub-division

14. Assistant Commissioner, Hunsur Revenue Sub-division of Hunsur

Sub-division

15. Assistant Commissioner, Revenue Sub-division of

Nanjangud Sub-division Nanjangud

16. Assistant Commissioner, Mandya Revenue Sub-division of Mandya

Sub-division

17. Assistant Commissioner, Revenue Sub-division of

Pandavapura Sub-division Pandavapura

18. Assistant Commissioner, Hassan Revenue Sub-division of Hassan

Sub-division

19. Assistant Commissioner, Revenue Sub-division of

Sakleshapur Sub-division Sakleshapur

20. Assistant Commissioner, Revenue Sub-division of

Chikmagalur Sub-division Chickamagalur

21. Assistant Commissioner, Tarikere Revenue Sub-division of Tarikere

Sub-division

22. Assistant Commissioner, Revenue Sub-division of Madakeri

Madakeri Sub-division

23. Assistant Commissioner, Puttur Revenue Sub-division of Puttur

Sub-division

240
SI.
No. Executive Magistrate Sub-Division

24. Assistant Commissioner, Revenue Sub-division of

Coondapur Sub-division Coondappur

25. Assistant Commissioner, Revenue Sub-division of

Mangalore Sub-division Mangalore

26. Assistant Commissioner, Revenue Sub-division of Belgaum

Belgaum Sub-division

27. Assistant Commissioner, Chikodi Revenue Sub-division of Chikodi

Sub-division

28. Assistant Commissioner, Bijapur Revenue Sub-division of Bijapur

Sub-division

29. Assistant Commissioner, Revenue Sub-division of

Bailhongal Sub-division Bailhongal

30. Assistant Commissioner, Revenue Sub-division of Bagalkot

Bagalkot Sub-division

31. Assistant Commissioner, Revenue Sub-division of

Jamkkandi Sub-division Jamkkandi

32. Assistant Commissioner, Indi Revenue Sub-division of Indi

Sub-division

33.
Assistant Commissioner,
Revenue Sub-division of Dharwad
Dharwad Sub-division

34.
Assistant Commissioner, Gadag Revenue Sub-division of Gadag
Sub-division
35.
Assistant Commissioner, Haveri
Revenue Sub-division of Haveri
Sub-division

241
SI.
No. Executive Magistrate Sub-Division

36.
Assistant Commissioner, Savanur
Revenue Sub-division of Savanur
Sub-divjsion

37.
Assistant Commissioner, Karwar
Revenue Sub-division of Karwar
Sub-division

38.
Assistant Commissioner, Kumta
Revenue Sub-division of Kumta
Sub-division

39.
Assistant Commissioner, Sirsi
Revenue Sub-division of Sirsi
Sub-division

40. Assistant Commissioner, Revenue Sub-division of Gulbarga

Gulbarga Sub-division

41. Assistant Commissioner, Sedam Revenue Sub-division of Sedam

Sub-division

42. Assistant Commissioner, Yadgiri

Sub-division Revenue Sub-division of Yadgiri

43. Assistant Commissioner, . Bellary

Sub-division Revenue Sub-division of Bellary

44. Assistant Commissioner, Hospet

Sub-division Revenue Sub-division of Hospet

45. Assistant Commissioner, Raichur

Sub-division Revenue Sub-division of Raichur

46. Assistant Commissioner, Revenue Sub-division of

Lingasugur Sub-division Lingasugur

242
SI.
No. Executive Magistrate Sub-Division

47. Assistant Commissioner, Koppal Revenue Sub-division of Koppal

Sub-division

48. Assistant Commissioner, Bidar Revenue Sub-division of Bidar

Sub-division

By Order and in the name of the

Governor of Karnataka

sd/-
(H. VEERABHADRAIAH)
Additional Secretary to Government,
. Home Department

243
 GOVERNMENT OF KARNATAKA

No. LAW 53 LCE 74 Karnataka Government Secretariat,

Vidhana Soudha,
Bangalore, dated 20th March 1974

NOTIFICATION - VIII

In exercise of the powers conferred by Sub-Section (1) of section 8 of the

Code of Criminal Procedure, 1973 (Central Act 2 of 1974) the Government of Karnataka
hereby declare that the area comprising the City of Bangalore as defined In the city of
Bangalore Municipal Corporation Act, 1949 (Karnataka Act 69 of 1949) shall with effect
from the First day of April 1974 be a Metropolitan Area for the purpose of the said Code.

By Order and in the name of the

Governor of Karnataka

sd/-
(N.D. VENKATESH)
Secretary to. Government,
Dept. of Law and Parly. Affairs

GOVERNMENT OF KARNATAKA

No. LAW 53 LCE 74 Karnataka Government Secretariat,

Vidhana Soudha,
Bangalore, dated 6th July, 1974
NOTIFICATION – IX

In exercise of the powers conferred by Sub-Section (1) of Section 144 of the

Code of Criminal Procedure, 1973 (Central A9t 2 of 1974) the Government of Karnataka
hereby specially empowers all Executive Magistrates appointed in Notification I HO 10
PCR 74:0ATEO 27-5-1974 for the purposes of the said section.

By Order and in the name of the

Governor of Karnataka

sd/-
(K.S.L. SASTRY)
Under Secretary to Government,
Home Department

244
 GOVERNMENT OF KARNATAKA

No. LAW 53 LCE 74 Karnataka Government Secretariat,

Vidhana Soudha,
Bangalore, dated 6th July, 1974
NOTIFICATION – X

In exercise of the powers conferred by Sub-Section(1) 'of Section 144 of the

Code of Criminal Procedure, 1973 (Central) Act 2 of 1974) the Government of Karnataka
hereby specially empowers the Commissioner of Police, Bangalore City, appointed as
Executive Magistrate in Notification I No, HD 10 PCR 74, dated 6-7-74, for the purposes
of the said section.

By Order and in the name of the

Governor of Karnataka

sd/-
(H. Veerabhadraiah)
Additional Secretary to
Government,
Home Department
NOTIFICATIONS ISSUED UNDER KARNATAKA POLICE ACT 1963

Notification No, HD 27 PCR 82 -II

Bangalore, dated the 2nd March 82.

In exercise of the powers conferred by Section 55 of the Karnataka Police

Act, 1963 (Karnataka Act 4 of 1964, the Government of Karnataka hereby specially
empowers the Sub-Divisional Magistrates in the State to exercise powers under the said
section within their respective jurisdictions in 'respect of areas to which the provisions
hereof have been extended.

By Order and in the name of the

Governor of Karnataka

sd/-
(N.V. NAIK)
Under Secretary to Government,
Home Department

245
 Notification No. HD 90 PCR 82
Bangalore, dated 28th May 82

In exercise of the Powers conferred by Section 55 of the Karnataka Police Act,

1963 (Karnataka Act 4 of 1964) and in partial modification of all the previous notifications
issued in this behalf, the Government of Karnataka hereby extends the provisions of the
said section to all the areas comprised within the State of Karnataka with immediate
effect.

By Order and in the name of the

Governor of Karnataka

Sd/-
(N.V. NAIK)
Under Secretary to Government,
Home Department (Crimes)

246
 APPENDIX - III
SPECIMEN FORMS, ORDERS, ETC.

DYING DECLARATION
(Chapter - XIV)
(Specimen Form)

Dying declaration of Sri/Smt ......................................................... …...........

recorded by (name and address of the person recording the statement) on (date), on the
requisition made by (designation of the Police Officer) of (place) through his letter
no................................ dated..... .............................

Name of the declarant:

Name of the father/husband:

Age: Occupation: Caste:

Residence:

Ques. 1 : Are you in a fit state of mind and conscious?

Ans:

Ques. 2: Are you in a position to speak?

Ans

Ques 3: Where are you at present?

Ans.

Ques. 4: Who brought you here when and by what means?

Ans:

Ques. 5: Who were the assailants?

Ans:

Ques. 6: What are their names and addresses?

Ans:

Ques 7: How do you identify them?

Ans:

Ques: 8: How did you sustain injuries'?

Ans:

247
Ques 9: What were the weapons used? point out their nature and size?
Ans:

Ques. 10: Which is the place of assault?

Ans:

Ques. 11: Are you in a position to locate the injuries on your body? if so,
locate them
Ans:

Ques. 12: How did you sustain injuries and in what manner?
Ans:

Ques: 13: What is the motive for assault?

Ans :

Signature/Thumb impression of the Declarant

Note: If declarant is not in his senses and not in a position to speak, his
statement need not be recorded. A note to this effect should be made.

Certificates to be entered to during Declaration

(Forms)
(I) Certificate*

I certify that the declaration is read over and explained to the maker in his
language and admitted to be correct.

Signature of the person recording the declaration

* Note: If it Is necessary to remove the injured immediately for operation and

reading over the statement and explaining it cause delay, the reading
over of the statement and explaining it may be dispensed with.

ii) Certificate

I certify that the above declaration was recorded by me in presence of the

Medical Officer who has signed the statement.

Signature of the person recording the declaration

248
 (iii) Certificate:*

The above declaration was recorded by ( name and address of the person
recording the statement) in my presence at (place ............................................
on ............................ (date) at ........................ (Time).

Signature of the Medical Officer.

* Note: If the person recording the statement is the Medical Officer himself, this
certificate can be dispensed with.

Signature of the person recording the declaration.

iv) Certificate :*

I certify that the declarant was conscious but as he was not in a position to
speak. he answered the question by gestures and their significance is ascertained and
recorded faithfully.

Signature of the person recording the declaration.

* Note: This certificate should be appended only in case of dumb persons and if
the significance of the gesture is not commonly understandable.

Signature of the person recording the declaration.

(v) Certificate :*

I certify that the answers given to questions by gesture were interpreted by

the person (name and address of the person) who understood them.

. * Note: This certificate should be appended only in case of dumb persons and if
the significance of the gesture is not commonly understandable.

Signature of the person recording the declaration.

249
 (vi) Certificate:

I further certify that I have taken the following precautions:

1. I have satisfied myself that the declarant is in a fit state of mind and is conscious;

2. That the declarant is in a position to speak;

3. That unauthorised person al e not allowed to crowd round the declarant;

4. That no outside influence is brought to bear on the declarant;

5. Friends and relatives of the declarant are not allowed to influence the declarant
by prompting or other wise; and

6. That the declaration is recorded faithfully.

Signature of the person recording the declaration

250
 MEMORANDUM OF IDENTIFICATION. PARADE OF
SUSPECT/ACCUSED
(Chapter XV)

(Specimen Form)

Proceedings of the test identification pertaining to the suspect/accused Sri

………………………………….. ... held at ……………………………….by me in case
No. ........................ .on this...............…………………day ..........................................at
................................ ............................... at the request of the Police under their letter
No ....... …………….dated......................

The Sub-Inspector of Police ................................................................................................................................. ..

Station House while submitting his letter requesting me to conduct identification
parade of the suspect/ accused... ....................................... ……………............... ...has
proposed ................................... number of witnesses. Accordingly, identification
parade is fixed on ...................... and summons were issued to the said proposed
witnesses.

Suspect / Accused produced by ..........................................................

On………………….. ............ at ...................... number of witnesses present and were
made to sit in........................

(a) Name and. full address of the persons mixed.

(b) The serial numbers in the row.

(c) Name and full address of the suspect/accused.

(d) Their serial numbers in the row

(e) The name and addresses of the witnesses asked to identify the
suspects/accused.

Ques. 1 : Why did you come here?

Ans.:

Ques. 2 : Were you present at the time of commission of offence?

Ans:

251
Ques 3: How many persons participated in the commission of offence?
Ans :

Ques. 4: Have you seen them at the time of commission of offence?

Ans :

Ques. 5 : Can you identify them in the row of persons?

Ans :

Ques. 6 : Who they are and point out them?

Ans :

Ques. 7 : Give reasons for having pointed out the identity of the suspect/ accused.
Ans :

CERTIFICATE

Certified that the answers in the Memorandum of Identification were read

over to the witness Sri ………………………………………………By me and admitted by
him to be correct.

Signature of the Signature of the Magistrate.

Identifying Witness (Full Address)

Place:

Date:

Note: 1. If the witness identifies a wrong person a note should be made in the
Memorandum to that effect also.

2. Memorandum pertaining to each and every suspect / accused should

be drawn separately.

3. The Magistrate should note precisely one by one, all the

precautions which are taken by him and which are enumerated
under the heading precautions to be taken by the Magistrate
while recording test identification.

252
 ORDER SHEET

(Specimen Form)

In the Court of the ………………………………………………………………………………

Case No.. ....................... ………………….of 19 ……………………….

SL.No. of Date of Order or Pro- Order or Proceeding Signature of

order ceeding with parties or
signature of Presiding pleaderwhen
Officer required

1 2 3 4

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 APPENDIX – IV

ETIQUETTE, MANNERS, CEREMONIALS AND

VISITS OF DIGNITARIES
The following is integrated as a guide to the officers of Government in the matter
of social official and court etiquette.

OFFICE ETIQUETTE

It Is necessary to observe utmost courtesy while dealing with members of the

public calling on officers.

1. As far as practicable an officer should be accessible to the public at all times.

2. From the point of speedy and efficient transaction of business. it is advisable

that they meet the members of the public in their , offices during office hours.

3. For this purpose officers should earmark certain hours of the day , of certain days
:

of the week (particularly shandy days) for receiving : visitors.

4. The office may be provided with a Visitors Room wherever possible and the room
furnished with chairs. tables, news papers, ashtrays, etc., and Class IV may be in
attendance.

5. Printed or plain slips of paper may be made available In the visitors room to
enable them to write their name and purpose of visit thereon. These may be
given to the Class IV official by the visitor to be given to the Officer.

6. The visitors should be received by the officer in order of their appearance unless,
there is an MLA, MP or a person who has to be received on a priority basis.

7. The visitor on entering the chambers of the officer may be greeted by.
"NAMASTE" or a smile and offered a seat.

8. For purposes of interview, Members of Parliament should be given preference

over other visitors; and in the very rare cases where an officer !s unable to see a
Member of Parliament at a time about which he had no previous notice, the
position should be politely explained to the Member and another appointment
fixed :in consultation with him. The same courtesy and regard should be shown
to Members of Legislature attending public functions ;where In particular, seats
befitting their position should be reserved for them.

254
9. The officer's table should present a neat appearance at all times and particularly
when receiving visitors. Cups saucers, hats, odd its of papers and cigarette ends
should be removed.

10. The visitors should be patiently heard and suitable reply given.

11. No meeting should be fixed in the time prescribed for visitors and as far as
possible the Officer should be available in the office during visiting hours.

12. Any petition or letter presented by the visitor should be received and an
acknowledgment given from the office.

13. A visitor's register may be maintained by the officer or the personal clerk to
officer indicating therein the name of the visitor, date, purpose of the visit and
brief summary of the nature of the disposal.

14. Due courtesy should be shown and suitable arrangements made for inspecting
officers and their' staff by providing chairs. Tables and invariably the head of the
office should meet the inspecting officers frequently during their inspections.

15. While every assistance should be provided to inspecting officers and official
superiors in making camp arrangements, it would be Improper to incur any
expenditure thereon.

16. An officer should accompany his superior officer on his tour, if the latter so
desires.

17. Officers should not waste time waiting long hours at IB or borders of their
jurisdiction for their superior officers.

18. Only the barest minimum number of officers should accompany an officer on his
tour of inspection.

19. Public functions/reception should not be arranged or encouraged.

20. In respect of visits of Ministers of Government Instructions of Government in this

behalf should be followed. Copy of the Government Circular No. GAD 17 GAM
73 dated 7th March 1973 issued by the Government is appended.

21. Utmost economy is necessary in the use of official vehicles at all times.

255
 22. There can be no objection to occasional hospitality being extended to Inspecting
officers at a personal level. Such hospitality should be austere.

23. Due respect should be shown to superior officers/colleagues at all times and
officers should not contradict each other in public.

24. Officers may smoke at meetings where ashtrays are provided or with the
permission of the Chairman of the meeting.

COURT ETIQUETTE

1. Officers should not smoke or chew when hearing cases are at RTA or similar
meetings.

2. On such occasions their dress should also be formal. Tea, Coffee, Snacks can
be served only during recess.

3. At formal hearings everyone present will rise when the presiding officer enters
preceded by court orderly and when he takes the chair he will acknowledge and
indicate to those present to resume their chairs.

4. Witnesses during examination, counsel examining and accused normally remain

standing.

5. When the court / hearing is adjourned the presiding officer rises and everyone
without exception gets up and he leaves the hall preceded by the orderly.

6. No matter how important another person coming into the court hall those present
should not rise.

7. Police officers will attend hearing in full uniform and will salute the presiding
officer. Those need not be returned but acknowledge by a nod.

8. Presiding Officer/Court may address the Counsel as Counsel for ……….

Counsel may address the presiding officer as Sir, your Honour and never by
name.

9. It is the duty of the presiding officer to make sui1able arrangements for court
work/hearings before hand and issue suitable instruction to all concerned for
compliance.

10. Smooth and orderly conduct of judicial/quasi judicial proceedings is the

responsibility of everyone present In case of disorderliness order may be

256
 restored by using a bell or by thumping on the table calling „Order Order‟ loudly,
Persons responsible for disorderliness are also liable for contempt of court
proceedings ar;1d action under IPC. Persons responsible for such
misdemeanour may be asked to remove themselves or on failure removed with
the help of the court.

CEREMONIALS:

Rituals and ceremonies form an important part of the life of an Individual as

well as a community. From birth through marriage, till death, a number of ceremonials
are associated with various stages of human life. In Official life also ceremonials and
formalities are quite closely associated in the observance of functions. KAS and other
State Service Officers as Heads of Offices will have to plan for and conduct these
ceremonial functions in their official capacity.

2. Ceremonials In Government and Semi-Government functions achieve the

following:

I. They promote a feeling of regard and respect for certain national institutions,
functions and personages.

II. They Infuse a sense of distinctive pride with respect to the national days, the
National Flag, and raise these functions above the ordinary and the mundane
functions in the minds of the people.

III. They satisfy the basic human need for rituals and ceremonies; and

IV. When uniformed elements take part in the function, certain degree of formality
and ceremony becomes essential.

Therefore, official participation and its various nuances should be understood and
appreciated by the trainee-officers at the earliest stage. It should not be left to be learnt
In remote and far-off districts or offices by the trial and error method.

3. Some of the points which need to be borne in mind while arranging, observing or
participating in functions of a ceremonial natural are:

(i) Conduct and bearing should be correct, poised and sober; on

such occasions no flippancy nor triviality or brash humour should be permitted.

257
 (ii) Sobriety in dress and behaviour is important because it sets the
tone for the function. Gentlemen officers should wear sherwanis or closed collar
coats and trousers or national dress; lady officers should wear sarees in plain
white, pastel shades or other sober colours (but not bright yellow, or other
gaudy colours). On no account should printed sarees be worn. On sports
functions, depending on weather blazers and scarf or service ties may be worn.

(iii) On ceremonial functions strictest punctuality must be observed;

late arrival will mean discourtesy to the public gathered for the functions and to
the uniformed units who may be taking part in the function.

(iv) If speeches are made they preferably be in the regional language

concerned and should be short, concise and at national functions avoid
informality of content or tone. . Speeches should be reduced to writing or atleast
points jotted down before going to the function.

Till they get accustomed to take part in such ceremonial functions, officers
will do well to rehearse their part a few times before the final day.

4. Two important ceremonial functions in which the officers of All India and
State Services are likely to take a leading part are the Republic day and the
Independence Day. Independence Day functions comprise of flag hoisting on official and
semi-official building or by public bodies or institutions; sports activities, arrangements
for decorative lighting on public buildings; symposia, debates or poetry recital functions
with some such theme as national integration etc. It may, however be mentioned that
functions arranged on the Independence Day are more in the nature of introspective
occasions rather than public demonstration of national fervour. It is the Republic Day
which is celebrated in a more elaborate manner and public expression to national
aspirations is given in a number of functions arranged on this occasion.

5. The main function organised on the Republic Day is the morning parade where
uniformed elements belonging to the Police NCC, Home Guards, Fire Brigades, etc., are
arranged at the district and divisional headquarters and" also at the state headquarters.
In some places where there are defence forces units they may also- take part in these
parades. These parades consist of flag hoisting ceremonies, march past by the troops
and possibly distribution of prizes for best turn out, etc. Important points; to be borne in
mind regarding flag hoisting and taking salute at the march past are:

258
A Flag Hoisting:

(i) The flag to be unfurled should be carefully tied up by somebody who knows the
proper knot, the rope to be pulled should be distinctively marked, as pulling the wrong
rope or pulling both the ropes is likely to end up in confusion.

(ii) If there is a VIP who has been invited to unfurl the flag he may be briefed regarding
the correct procedure; an assistant may remain present to help in case the flag is not
broken at the first attempt; but unfurling must be done by the VIP.

(iii) National Anthem will be played as soon as the flag is broken and everyone
including the VIP will give a salute to the flag and stand at attention. Uniformed troops
and their officers with arms or swords as the case may be, will pay compliments as laid
down. The National Anthem will generally be played by a police or a services band. In
case it is sung, the VIP and the audience may join. On no account should Gramophone
Records of National Anthem be played at ceremonial functions.

B Taking Salutes:

Civilian officers, both ladies and gentlemen required to take salutes at

parades by uniformed formations or at guards of honour, will return the compliments as
follows:

(i) When wearing Indian head dress or none at all, by raising the right hand
to the forehead with the fingers slightly inclined, the observe of the palm facing right eye,
and the reverse outwards. (This is different from the rigid, military salute, in which the
reverse of the palm faces inward, and the obverse out-wards, and the elbow is raised in
line with the shoulder).

(ii) When wearing European head dress, by raising the hat with right hand.

In both (i) and (ii), the hand or hat should be lowered only after the .

troops have marched past, or after each group has marched past, where there
are more than one.

(iii) While receiving a salute from an officer who is carrying a sword do not
attempt to shake hands with him for obvious reasons, as he will be carrying the sword in
his right hand.

259
 (iv) If inspection of the parade has to be done, only the front rank will be
inspected and avoid the use of jeeps or other conveyance unless it is a very large
.parade. Parade is usually inspected by uniformed officers in slow march, while the band
plays appropriate tune. Parade Commander will also walk in slow march. Civilian officers
or VIPs however, need not walk in slow march but they, should take slow and measured
steps so that the parade commander and uniformed officer can keep pace with him.

(v) Do not make long speeches especially when men are facing the sun or
have been standing too long or weather is inclement.

6. Meeting in Uniforms:

Occasionally after the parade civilian officers may be invited to meet the
troops either for encouragement or for introduction. At such informal meetings
remember that the uniformed units have a code of conduct of their own and their
training in discipline and propriety will make it difficult to establish informality in the
same degree as among the civilians. They also have a more rigid hierarchical
structure and any attempt at upsetting that is to be avoided.

7. Attending Rashtrapati Bhavan or Government House at Home:

Do not forget to sign the Visitors Book in the Government House when you
visit or are posted to the State capitals. Invitations from government houses are like
commands which must be honoured unless for extremely unavoidable reasons regrets
have to be sent. In any case do not forget or postpone sending .acceptance regrets as
soon as invitations are received. Dress should always be in conformity with the
occasions. Occasions would also determine the style of speaking mood and even
vocabulary used in speeches.

8. Distribution of Prizes:

Unless it is very embarrassing to refuse, do not agree to give away prizes.

This privilege is generally exercised by ladies. However, if it has to be done, do it
correctly with dignity and poise, making occasional remarks to some of the prize-winners
but do not delay the proceedings by too long conversations with individual prize-winners.
Do not attempt to shake hands with lady prize winners unless they make the first move.
In the case of lady officers giving away the prizes it is advisable not-to shake hands at
all. When giving away "multi-storey" cup see that different parts of such cups do not
tumble down in the process of being hand over to the recipient.

260
9. Visits of Dignitaries and High Personages:

Warrants of precedence issued by the Government of India and by the

State Government should be consulted for according correct precedence to invitees
at the time of introduction at air-ports, railway stations, etc. Same warrants of
precedence will apply in the case of seating arrangements, sending invitations, etc.,
for meals and other functions. For holders of posts mentioned in the same column in
the warrant of precedence, the date from which the office holders entered that
column would be taken into account for fixing his order of precedence.

10. Days of Mourning:

On the demise of a holder of a high office in Government or a very venerable

public figure, state mourning will be declared by the Government concerned. Such
declaration will always specify the number of days for which mourning is to be observed.
During such mourning period flags will fly at half mast at all Government buildings and
official and semi-official functions will be cancelled.

11. Other Occasions:

While visiting quarter guards or unit lines of Army/ Police/ NCC Home Guards Units,
compliments should be properly received and given. Adopt the proper saluting
procedure as already mentioned. Do not just receive the salute. with a flick of the head
or a casual raising of the hand while moving away from. the quarter guard. If
compliments are paid they should be received properly while standing at attention. When
the salute is given by armed guard they will present arms (salami Shastra) to the visiting
VIP. It should be remembered that the "Salalmi Shastra" consists of three district
separate movements. The salute by the VIP in return should be synchronised with the
last movement. Similarly after the salute the guard will do "Order Arm (Bazu Shastra)".
This consists of two distinct separate movements. The hand raised in salute should
come down to synchronise with the last movement of the "Bazu Shastra". After the
guard has been inspected, the VIP should give the order "Visarjan" (Dismiss) when the
guard will give another salute which will be returned in the manner described above.
This procedure, however,' will not apply when the complete guard does not turn out but
only a butt salute is given by the sentry. After compliments are received and returned, a
few words of praise and encouragement to the uniformed personnel are in order.

000

261
 Circular No. GAD 17 GAM 73, dated 7th March, 1973 issued by the
Karnataka Secretariat regarding visits of Ministers:

It is observed that instructions issued to the officers in Circular No. GAD 89

OOM 68, dated 17th August, 196.8, regarding the courtesies to be shown to the
Ministers during their tours in the Districts and regarding exercise of economy in the use
of Government vehicles and avoiding of ostentations, etc., are not being followed strictly.
In supersession of all the previous orders on the subject, the following instructions are
issued for strict observance:

1. The Ministers tours are of two distinct categories namely official and non-
official. The classification of a particular tour will be intimated by the Ministers
concerned. In the absence of any indication to the contrary, all tours of the Ministers
should be deemed to be official.

2. Whenever any Minister/ Minister of State visits any place in a district, the
District officers of the Department comprised in the portfolio of the Minister should
receive him on arrival and see him off at the time of the departure.

3. Unless specifically desired by the Minister, indicating the rank and number
of officers, the District Officers need not accompany the Minister during his tour within
their jurisdiction as a matter of course. In the event of accompanying . the Minister as
per his specific instructions, utmost economy should be exercised in the use of
Government vehicles. The District Officers accompanying the Minister should not take
with them Junior Officers. Whenever certain other District Officers comprised in the
portfolio of the Minister are also requested by the Minister to accompany him, all such
officers should manage with the minimum number of vehicles at the rate of five officers
per vehicle.

4. It will be the duty of the Officers of the Department comprised in the portfolio
of the Minister to assist him, and the Officers travelling with him on Government duty to
procure accommodation, supply of food and other reasonable necessities, on payment.
Bill for supplies should be presented for payment immediately and not delayed.

5. The Divisional Commissioner, Deputy Commissioner and the Superintendent of

Police will call on the Minister if they are in Headquarters. Unless specifically desired by
the Minister, they should not accompany him during his tour. It is also not necessary for
them to make a special trip to the place of visit or in case of visit to Headquarters, break

262
camp and return specially to headquarters to receive the Minister. However when
intimation is received of a Minister „s visit to headquarters, well in advance, the Divisional
Commissioner, Deputy Commissioner, Superintendent of Police should so arrange his
tour programme as to be available if possible at headquarters at the time of the Ministers
visit. These instructions will apply equally to the subordinate Revenue Officers like the
Assistant Commissioners and the Tahsildars. The Superintendent of Police will however
make the usual security arrangements on such occasions.

6. When Ministers undertake tours on the eve of the Elections. Government Officers,
while they should make the usual arrangements, to enable the Ministers, should not
themselves organise any election meetings, nor be present during such meetings except
when their duties enjoin them to be present in order to maintain law and order or to
make security arrangements.

7. In the case of the non-official tours that may be indicated by the Minister, such of the
District Officers comprised in the Ministers portfolio as are at headquarters should show
the same courtesies as indicated in para 1 above, namely of receiving him on arrival and
seeing off at the time of the departure. There is no need for the officers to accompany
the Ministers during the latter‟s non-official tour.

8. In the case of purely official functions, the Ministers may ask the local officers to verify
before hand whether there is any objection for the Minister to participate in the function.
Detailed report on such queries should be directly sent to the Private Secretary to the
Minister concerned. In the case of private functions, the Minister may likewise desire to
have the details of the functions, etc., in which case the local officers should consult
informally the local President of the party and send a suitable report to the Private
Secretary to the Minister concerned.

000

263
 APPENDIX – V

THE PROVISIONS RELATING TO CRIMINAL

PROCEDURE CODE – WHICH ARE FOUND
IN CHAPTER II TO XII

2.Definitions.- In this Code, unless the context otherwise requires, -

(a)"bailable offence" means an offence which is shown as bailable in the First Schedule,
or which is made bailable by any other law for the time being in force; and "non-bailable
offence" means any other offence;

(b)"charge" includes any head of charge when the charge contains more heads than
one;

(c)"cognizable offence" means an offence for which, and "cognizable 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;

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

Explanation.- A report made by a police officer in a case which discloses, after

investigation, the commission of a non-cognizable offence shall be deemed to be a
complaint; and the police officer by whom such report is made shall be deemed to be the
complainant;

(e)"High Court" means, -

(i) 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;

264
(iii) in relation to any other Union territory, the highest Court of criminal appeal for that
territory other than the Supreme Court of India;

(f)"Indian" means the territories to which this Code extends;

(g)"inquiry" means every inquiry, other than a trial, conducted under this Code by a
Magistrate or Court;

(h)"investigation" includes all the proceedings under this Code for the collection of
evidence conducted by a police officer or by any person (other than a Magistrate) who is
authorised by a Magistrate in this behalf;

(i)" judicial proceeding" includes any proceeding in the course of which evidence is or
may be legally taken on oath;

(j)"local jurisdiction", in relation to a Court or Magistrate, means the local area within
which the Court or Magistrate may exercise all or any of its or his powers under this
Code;

(k)"metropolitan area" means the area declared, or deemed to be declared, under

section 8, to be a metropolitan area;

(l)"non-cognizable offence" means an offence for which, and "non-cognizable case"

means a case in which, a police officer has no authority to arrest without warrant;

(m)"notification" means a notification published in the Official Gazette;

(n)"offence" means any act or omission made punishable by any law for the time being
in force and includes any act in respect of which a complaint may be made under section
20 of the Cattle-trespass Act, 1871( 1 of 1871);

(o)"officer in charge of a police station" includes, when the officer in charge of the police
station is absent from the station-house or unable from illness or other cause to perform
his duties, the police officer present at the station-house who is next in rank to such
officer and is above the rank of constable or, when the State Government so directs, any
other police officer so present;

265
(p)"place" includes a house, building, tent, vehicle and vessel;

(q)"pleader", when used with reference to any proceeding in any Court, means a person
authorised by or under any law for the time being in force, to practise in such Court, and
includes any other person appointed with the permission of the Court to act in such
proceeding;

( r ) " police report" means a report forwarded by a police officer to a Magistrate under
sub-section (2) of section 173;

(s)"police report" means a report forwarded by a police officer or specially by the State
Government, to be a police station, and includes any local area specified by the State
Government in this behalf;

(t)"prescribed" means prescribed by rules made under this Code;

(u)"Public Prosecutor" means any person appointed under section 24, and includes any
person acting under the directions of a Public Prosecutor;

(v)"sub-division" means a sub-division of a district;

(w)"summons-case" means a case relating to an offence, and not being a warrant-case;

(x)"warrant-case" means a case relating to an offence punishable with death,

imprisonment for life or imprisonment for a term exceeding two years;

(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.

6.Classes of Criminal Courts.- Besides the High Courts and the 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 metropolitan area, Metropolitan
Magistrates;

266
(iii) Judicial Magistrates of the second class; and

(iv) Executive Magistrates.

8.Metropolitan areas.- (1) The State Government may, by notification, declare that , as
from such date as may be specified in the notification, any area in the State comprising a
city or town whose population exceeds one million shall be a metropolitan area for the
purposes of this Code.

(2) As from the commencement of this Code, each of the Presidency-towns of Bombay,
Calcutta and Madras and the city of Ahmedabad shall be deemed to be declared under
sub-section (1) to be a metropolitan area.

(3) The State Government may, by notification, extend, reduce or alter the limits of a
metropolitan area but the reduction or alteration shall not be so made as to reduce the
population of such area to less than one million.

(4) Where, after an area has been declared, or deemed to have been declared to be, a
metropolitan area, the population of such area falls below one million, such area shall,
on and from such date as the State Government may, by notification, specify in this
behalf, cease to be a metropolitan area; but notwithstanding such cesser, any inquiry,
trial or appeal pending immediately before such cesser before any Court or Magistrate in
such area shall continue to be dealt with under this Code, as if such cesser had not
taken place.

(5) Where the State Government reduces or alters, under sub-section (3), the limits of
any metropolitan area, such reduction or alteration shall not affect any inquiry, trial or
appeal pending immediately before such reduction or alteration before any Court or
Magistrate, and every such inquiry, trial or appeal shall continue to be dealt with under
this Code as if such reduction or alteration had not taken place.

Explanation.- In this section, the expression "population" means the population as

ascertained at the last preceding census of which the relevant figures have been
published.

267
9.Court of Session.- (1)The State Government shall establish a Court of Session for
every sessions division.

(2) Every Court of Session shall be presided over by a Judge, to be appointed by the
High Court.

(3) The High Court may also appoint Additional Sessions Judges and Assistant Sessions
Judges to exercise jurisdiction in a Court of Session.

(4)The Sessions Judge of one sessions division may be appointed by the High Court to
be also an Additional Sessions Judge of another division, and in such case he may sit
for the disposal of cases at such place or places in the other division as the High Court
may direct.

(5) Where the office of the Sessions Judge is vacant, the High Court may make
arrangements for the disposal of any urgent application which is, or may be, made or
pending before such Court of Session by an Additional or Assistant Sessions Judge, or,
if there be no Additional or Assistant Sessions Judge, by a Chief Judicial Magistrate, in
the sessions division; and every such Judge or Magistrate shall have jurisdiction to deal
with any such application.

(6) The Court of Session shall ordinarily hold its sitting at such place or places as the
High Court may, by notification, specify; but, if, in any particular case, the Court of
Session is of opinion that it will tend to the general convenience of the parties and
witnesses to hold its sittings at any other place in the sessions division, it may, with the
consent of the prosecution and the accused, sit at that place for the disposal of the case
or the examination of any witness or witnesses therein.

Explanation.- For the purposes of this Code, "appointment" does not include the first
appointment, posting or promotion of a person by the Government to any Service, or
post in connection with the affairs of the Union or of a State, where under any law, such
appointment, posting or promotion is required to be made by Government.

10.Subordination of Assistant Sessions Judges.- (1) All Assistant Sessions Judges

shall be subordinate to the Sessions Judge in whose Court they exercise jurisdiction

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(2) The Sessions Judge may, from time to time, make rules consistent with this Code, as
to the distribution of business among such Assistant Sessions Judges.

(3) The Sessions Judge may also make provision for the disposal of any urgent
application, in the event of his absence or inability to act, by an Additional or Assistant
Sessions Judge, or, if there be no Additional or Assistant Sessions Judge, by the Chief
Judicial Magistrate, and every such Judge or Magistrate shall be deemed to have
jurisdiction to deal with any such application.

11.Courts of Judicial Magistrates.- (1) In every district (not being a metropolitan area),
there shall be established as many Courts of Judicial Magistrates of the first class and of
the second class, and at such places, as the State Government may, after consultation
with the High Court, by notification, specify.

(2) The presiding officers of such Courts shall be appointed by the High Court.

(3) The High Court may, whenever it appears to it to be expedient or necessary, confer
the powers of a Judicial Magistrate of the first class or of the second class on any
member of the Judicial Service of the State, functioning as a Judge in a Civil Court.

20.Executive Magistrates.-(1) In every district and in every metropolitan area, the State
Government may appoint as many persons as it thinks fit to be Executive Magistrates
and shall appoint one of them to be the District Magistrate

(2) The State Government may appoint any Executive Magistrate to be an Additional
district Magistrate, and such Magistrate shall have all or any of the powers of a District
Magistrate under this Code or under any other law for the time being in force.

(3) Whenever, in consequence of the office of a District Magistrate becoming vacant,

any officer succeeds temporarily to the executive administration of the district, such
officer shall, pending the orders of the State Government, exercise all the powers and
perform all the duties respectively conferred and imposed by this Code on the District
Magistrate.

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(4) The State Government may place an Executive Magistrate in charge of a sub-
division and may relieve him of the charge as occasion requires; and the Magistrate so
placed in charge of a sub-division shall be called the Sub-divisional Magistrate.

(5) Nothing in this section shall preclude the State Government from conferring, under
any law for the time being in force, on a Commissioner of Police, all or any of the powers
of an Executive Magistrate in relation to a metropolitan area.

22.Local jurisdiction of Executive Magistrates.- (1) Subject to the control of the State
Government, the District Magistrate may, from time to time, define the local limits of the
areas within which the Executive Magistrates may exercise all or any of the powers with
which they may be invested under this Code.

(2) Except as otherwise provided by such definition, the jurisdiction and powers of every
such Magistrate shall extend throughout the district.

23.Subordination of Executive Magistrates.- (1) All Executive Magistrates, other than

the Additional District Magistrate, shall be subordinate to the District Magistrate, and
every Executive Magistrate (other than the Sub-divisional Magistrate) exercising powers
in a sub-division shall also be subordinate to the Sub-divisional Magistrate, subject,
however, to the general control of the District Magistrate.

(2) The District Magistrate may, from time to time, make rules or give special orders,
consistent with this Code, as to the distribution of business among the Executive
Magistrates subordinate to him and as to the allocation of business to an Additional
District Magistrate.

24.Public Prosecutors.- (1)For every High Court, the Central Government or the State
Government shall, after consultation with the High Court, appoint a Public Prosecutor for
conducting, in such Court, any prosecution, appeal or other proceeding on behalf of the
Central or State Government, as the case may be.

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(2) For every district the State Government shall appoint a Public Prosecutor and may
also appoint one or more Additional Public Prosecutors for the district.

(3) The District Magistrate shall, in consultation with the Sessions Judge, prepare a
panel of names of persons who are, in his opinion, fit to be appointed as the Public
Prosecutor or Additional Public Prosecutor for the district.

(4) No person shall be appointed by the State Government as the Public Prosecutor or
Additional Public Prosecutor for the district unless his name appears on the panel of
names prepared by the District Magistrate under sub-section (3).

(5) A person shall only be eligible to be appointed as a Public Prosecutor or an

Additional Public Prosecutor under sub-section (1) or sub-section (2), if he has been in
practice as an advocate for not less than seven years.

(6) The Central Government or the State Government may appoint, for the purposes of
any case or class of cases, an advocate who has been in practice for not less than ten
years, as a Special Public Prosecutor.

25.Assistant Public Prosecutors.- (1) The State Government shall appoint in every
district one or more Assistant Public Prosecutors for conducting prosecutions in the
Courts of Magistrates.

(2) Save as otherwise provided in sub-section (3), no police officer shall be eligible to be
appointed as an Assistant Public Prosecutor.

(3) Where no Assistant Public Prosecutor is available for the purposes of any particular
case, the District Magistrate may appoint any other person to be the Assistant Public
Prosecutor in charge of that case:

Provided that a police officer shall not be so appointed-

(a) if he has taken any part in the investigation into the offence with respect to which the
accused is being prosecuted; or

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(b) if he is below the rank of Inspector.

34.Withdrawal of powers.- (1) The High Court or the State Government, as the case
may be, may withdraw all or any of the powers conferred by it under this Code on any
person or by any officer subordinate to it

(2) Any powers conferred by the Chief Judicial Magistrate or by the District Magistrate
may be withdrawn by the respective Magistrate by whom such powers were conferred.

35.Powers of Judges and Magistrates exercisable by their successors-in-office.-

(1) Subject to the other provisions of this Code, the powers and duties of a Judge or
Magistrate may be exercised or performed by his successor-in-office.

(2) When there is any doubt as to who is the successor-in-office of any Additional or
Assistant Sessions Judge, the Sessions Judge shall determine by order in writing the
Judge who shall, for the purposes of this Code or of any proceedings or order
thereunder, be deemed to be the successor-in-office of such Additional or Assistant
Sessions Judge.

(3) When there is any doubt as to who is the successor-in-office of any Magistrate, the
Chief Judicial Magistrate, or the District Magistrate, as the case may be, shall determine
by order in writing the Magistrate who shall, for the purpose of this Code or of any
proceedings or order thereunder, be deemed to be the successor-in-office of such
Magistrate.

37.Public when to assist Magistrates and police.- Every person is bound to assist a
Magistrate or police officer reasonably demanding his aid-

(a) in the taking or preventing the escape of any other person whom such Magistrate or
police officer is authorised to arrest; or

(b) in the prevention or suppression of a breach of the peace; or

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(c) in the prevention of any injury attempted to be committed to any railway, canal,
telegraph or public property.

41.When police may arrest without warrant.- (1) Any police officer may without an
order from a Magistrate and without a warrant, arrest any person-

(a) who has been concerned in any cognizable offence, or against whom a reasonable
complaint has been made, or credible information has been received, or a reasonable
suspicion exists, of his having been so concerned; or

(b) who has in his possession without lawful excuse, the burden of proving which excuse
shall lie on such person, any implement of house-breaking; or

(c) who has been proclaimed as an offender either under this Code or by order of the
State Government; or

(d) in whose possession anything is found which may reasonably be suspected to be

stolen property and who may reasonably be suspected of having committed an offence
with reference to such thing; or

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

(f) who is reasonably suspected of being a deserter from any of the Armed Forces of the
Union; or

(g) who has been concerned in, or against whom a reasonable complaint has been
made, or credible information has been received, or a reasonable suspicion exists, of his
having been concerned in, any act committed at any place out of India which, if
committed in India, would have been punishable as an offence, and for which he is,
under any law relating to extradition, or otherwise, liable to be apprehended or detained
in custody in India; or

(h) who, being a released convict, commits a breach of any rule made under sub-section
(5) of section 356; or

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(I) for whose arrest any requisition, whether written or oral, has been received from
another police officer, provided that the requisition specifies the person to be arrested
and the offence or other cause for which the arrest is to be made and it appears
therefrom that the person might lawfully be arrested without a warrant by the officer who
issued the requisition.

(2) Any officer in charge of a police station may, in like manner, arrest or cause to be
arrested any person, belonging to one or more of the categories of persons specified in
section 109 or section 110.

42.Arrest on refusal to give name and residence.- (1) When any person who, in the
presence of a police officer, has committed or has been accused of committing a non-
cognizable offence refuses, on demand of such officer, to give his name and residence
or gives a name or residence which such officer has reason to believe to be false, he
may be arrested by such officer in order that his name or residence may be ascertained.

(2) When the true name and residence of such person have been ascertained, he shall
be released on his executing a bond, with or without sureties, to appear before a
Magistrate if so required:

Provided that, if such person is not resident in India, the bond shall be secured by a
surety or sureties resident in India.

(4) (3) Should the true name and residence of such person not be ascertained within
twenty-four hours from the time of arrest or should he fail to execute the bond, or, if so
required, to furnish sufficient sureties, he shall forthwith be forwarded to the nearest
Magistrate having jurisdiction.

43.Arrest by Private person and procedure on such arrest.- (1) Any private person
may arrest or cause to be arrested any person who in his presence commits a non-
bailable and cognizable offence, or any proclaimed offender, and, without unnecessary
delay, shall make over or cause to be made over any person so arrested to a police
officer, or, in the absence of a police officer, take such person or cause him to be taken
in custody to the nearest police station.

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(2) If there is reason to believe that such person comes under the provisions of section
41, a police officer shall re-arrest him.

(3) If there is reason to believe that he has committed a non-cognizable offence, and he
refuses on the demand of a police officer to give his name and residence, or gives a
name or residence which such officer has reason to believe to be false, he shall be dealt
with under the provisions of section 42; but if there is no sufficient reason to believe that
he has committed any offence, he shall be at once released.

44.Arrest by Magistrate.- (1) When any offence is committed in the presence of a

Magistrate, whether Executive or Judicial, within his local jurisdiction, he may himself
arrest or order any person to arrest the offender, and may thereupon, subject to the
provisions herein contained as to bail, commit the offender to custody.

(2) Any Magistrate, whether Executive or Judicial, may at any time arrest or direct the
arrest, in his presence, within his local jurisdiction, of any person for whose arrest he is
competent at the time and in the circumstances to issue a warrant.

45.Protection of members of the Armed Forces from arrest.- (1) Notwithstanding

anything contained in sections 41 to 44 (both inclusive), no member of the Armed Forces
of the Union shall be arrested for anything done or purported to be done by him in the
discharge of his official duties except after obtaining the consent of the Central
Government.

(2) The State Government may, by notification, direct that the provisions of sub-section
(1) shall apply to such class or category of the members of the Force charged with the
maintenance of public order as may be specified therein, wherever they may be serving,
and thereupon the provisions of that sub-section shall apply as if for the expression
"Central Government" occurring therein, the expression "State Government" were
substituted.

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46.Arrest how made.- (1) In making an arrest the police officer or other person making
the same shall actually touch or confine the body of the person to be arrested, unless
there be a submission to the custody by word or action.

(2) If such person forcibly resists the endeavour to arrest him, or attempts to evade the
arrest, such police officer or other person may use all means necessary to effect the
arrest.

(3) Nothing in this section gives a right to cause the death of a person who is not
accused of an offence punishable with death or with imprisonment for life

49.No unnecessary restraint.- The Person arrested shall not be subjected to more
restraint than is necessary to prevent his escape.

50.Person arrested to be informed of grounds of arrest and of right to bail.- (1)

Every police officer or other person arresting any person without warrant shall forthwith
communicate to him full particulars of the offence for which he is arrested or other
grounds for such arrest.

(2) Where a police officer arrests without warrant any person other than a person
accused of a non-bailable offence, he shall inform the person arrested that he is entitled
to be released on bail and that he may arrange for sureties on his behalf

53.Examination of accused by medical practitioner at the request of police officer.-

(1) When a person is arrested on a charge of committing an offence of such a nature
and alleged to have been committed under such circumstances that there are
reasonable grounds for believing that an examination of his person will afford evidence
as to the commission of an offence, it shall be lawful for a registered medical
practitioner, acting at the request of a police officer not below the rank of sub-inspector,
and for any person acting in good faith in his aid and under his direction, to make such
an examination of the person arrested as is reasonably necessary in order to ascertain

276
the facts which may afford such evidence, and to use such force as is reasonably
necessary for that purpose.

(2) Whenever the person of a female is to be examined under this section, the
examination shall be made only by, or under the supervision of, a female registered
medical practitioner.

Explanation.- In this section and in section 54, "registered medical practitioner" means a
medical practitioner who possesses any recognized medical qualification as defined in
clause (h) of section 2 of the Indian Medical Council Act, 1956,(102 of 1956) and whose
name has been entered in a State Medical Register.

54.Examination of arrested person by medical practitioner at the request of the

arrested person.- When a person who is arrested, whether on a charge or otherwise,
alleges, at the time when he is produced before a Magistrate or at any time during the
period of his detention in custody that the examination of his body will afford evidence
which will disprove the commission by him of any offence or which will establish the
commission by any other person of any offence against his body, the Magistrate shall, if
requested by the arrested person so to do direct the examination of the body of such
person by a registered medical practitioner unless the Magistrate considers that the
request is made for the purpose of vexation or delay or for defeating the ends of justice.

56.Person arrested to be taken before Magistrate or officer in charge of police

station.- A police officer making an arrest without warrant shall, without unnecessary
delay and subject to the provisions herein contained as to bail, take or send the person
arrested before a Magistrate having jurisdiction in the case, or before the officer in
charge of a police station.

60.Power, on escape, to pursue and retake.-(1) If a person in lawful custody escapes

or is rescued, the person from whose custody he escaped or was rescued may
immediately pursue and arrest him in any place in India.

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(2) The provisions of section 47 shall apply to arrests under sub-section (1) although the
person making any such arrest is not acting under a warrant and is not a police officer
having authority to arrest.

107.Security for keeping the peace in other cases.- (1) When an Executive Magistrate
receives information that any person is likely to commit a breach of the peace or disturb
the public tranquillity or to do any wrongful act that may probably occasion a breach of
the peace or disturb the public tranquillity and is of opinion that there is sufficient ground
for proceeding, he may, in the manner hereinafter provided, require such person to show
cause why he should not be ordered to execute a bond, for keeping the peace for such
period, not exceeding one year, as the Magistrate thinks fit.

(2) Proceeding under this section may be taken before any Executive Magistrate when
either the place where the breach of the peace or disturbance is apprehended is within
his local jurisdiction or there is within such jurisdiction a person who is likely to commit a
breach of the peace or disturb the public tranquillity or to do any wrongful act as
aforesaid beyond such jurisdiction.

108.Security for good behaviour from persons disseminating seditious matters.- (1)
When a Judicial Magistrate of the first class receives information that there is within his
local jurisdiction any person who, within or without such jurisdiction, -

(i) either orally or in writing or in any other manner, intentionally disseminates or

attempts to disseminate or abets the dissemination of, -

(a) any matter the publication of which is punishable under section 124A or section 153A
or section 153B or section 295A of the Indian Penal Code, (45 of 1860) or

(b) any matter concerning a Judge acting or purporting to act in the discharge of his
official duties which amounts to criminal intimidation or defamation under the Indian
Penal Code, (45 of 1860).

(ii)makes, produces, publishes or keeps for sale, imports, exports, conveys, sells, lets to
hire, distributes, publicly exhibits or in any other manner puts into circulation any

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obscene matter such as is referred to in section 292 of the Indian Penal Code, (45 of
1860)
(ii) and the Magistrate is of opinion that there is sufficient ground for proceeding, the
Magistrate may, in the manner hereinafter provided, require such person to show cause
why he should not be ordered to execute a bond, with or without sureties, for his good
behaviour for such period, not exceeding one year, as the Magistrate thinks fit.

(2) No proceedings shall be taken under this section against the editor, proprietor, printer
or publisher of any publication registered under, and edited, printed and published in
conformity with, the rules laid down in the Press and Registration of Books Act, 1867,
(25 of 1867) with reference to any matter contained in such publication except by the
order or under the authority of the State Government or some officer empowered by the
State Government in this behalf.

109.Security for good behaviour from suspected persons.- When a Judicial Magistrate of
the first class receives information that there is within his local jurisdiction a person
taking precautions to conceal his presence and that there is reason to believe that he is
doing so with a view to committing a cognizable offence, the Magistrate may, in the
manner hereinafter provided, require such person to show cause why he should no the
ordered to execute a bond, with or without sureties, for his good behaviour for such
period, not exceeding one year, as the Magistrate thinks fit.

110.Security for good behaviour from habitual offenders.- When a Judicial Magistrate of
the first class receives information that there is within his local jurisdiction a person who -

(a) is by habit a robber, house-breaker, thief, or forger, or

(b) is by habit a receiver of stolen property knowing the same to have been stolen, or

(c) habitually protects or harbours thieves, or aids in the concealment or disposal of

stolen property, or

(d) habitually commits, or attempts to commit, or abets the commission of, the offence of
kidnapping, abduction, extortion, cheating or mischief, or any offence punishable under

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Chapter XII of the Indian Penal Code, (45 of 1860) or under section 489A, section 489B,
section 489C or section 489D of that Code, or

(e) habitually commits, or attempts to commit, or abets the commission of, offences,
involving a breach of the peace, or

(f) habitually commits, or attempts to commit, or abets the commission of –

(i) any offence under one or more of the following Acts, namely:-

(a) the Drugs and Cosmetics Act, 1940 (23 of 1940);

(b) the Foreign Exchange Regulation Act, 1973 (7 of 1973);

(c) the Employees' Provident Funds and Family Pension Fund Act, 1952 (19 of 1952);

(d) the Prevention of Food Adulteration Act, 1954 (37 of 1954);

(e) the Essential Commodities Act, 1955(10 of 1955);

(f) the Untouchability (Offences ) Act, 1955 (22 of 1955);

(g) the Customs Act, 1962 (52 of 1962); or

(ii) any offence punishable under any other law providing for the prevention of hoarding
or profiteering or of adulteration of food or drugs or of corruption, or

(g) is so desperate and dangerous as to render his being at large without security
hazardous to the community,

such Magistrate may, in the manner hereinafter provided, require such person to show
cause why he should not be ordered to execute a bond, with sureties, for his good
behaviour for such period, not exceeding three years, as the Magistrate thinks fit.

111.Order to be made.- When a Magistrate acting under section 107, section 108,
section 109 or section 110, deems it necessary to require any person to show cause

280
under such section, he shall make an order in writing, setting forth the substance of the
information received, the amount of the bond to be executed, the term for which it is to
be in force, and the number, character and class of sureties (if any) required.

112.Procedure in respect of person in Court.- If the person in respect of whom such

order is made is present in Court, it shall be read over to him, or, if he so desires, the
substance thereof shall be explained to him.

113.Summons or warrant in case of person not so present.- If such person is not present
in Court, the Magistrate shall issue a summons requiring him to appear, or, when such
person is in custody, a warrant directing the officer in whose custody he is to bring him
before the Court;

Provided that whenever it appears to such Magistrate, upon the report of a police officer
or upon other information (the substance of which report or information shall be recorded
by the Magistrate), that there is reason to fear the commission of a breach of the peace,
and that such breach of the peace cannot be prevented otherwise than by the immediate
arrest of such person, the Magistrate may at any time issue a warrant for his arrest.

114.Copy of order to accompany summons or warrant.- Every summons or warrant

issued under section 113, shall be accompanied by a copy of the order made under
section 111, and such copy shall be delivered by the officer serving or executing such
summons or warrant to the person served with, or arrested under, the same.

115.Power to dispense with personal attendance.- The Magistrate may, if he sees

sufficient cause, dispense with the personal attendance of any person called upon to
show cause why he should not be ordered to execute a bond for keeping the peace or
for good behaviour and may permit him to appear by a pleader.

116.Inquiry as to truth of information.- (1) When an order under section 111 has been
read or explained under section 112 to a person present in Court, or when any person
appears or is brought before a Magistrate in compliance with, or in execution of, a

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summons or warrant, issued under section 113, the Magistrate shall proceed to inquire
into the truth of the information upon which action has been taken, and to take such
further evidence as may appear necessary.

(2) Such inquiry shall be made, as nearly as may be practicable, in the manner
hereinafter prescribed for conducting trial and recording evidence in summons-cases.

(3) After the commencement, and before the completion, of the inquiry under sub-
section (1), the Magistrate, if he considers that immediate measures are necessary for
the prevention of a breach of the peace or disturbance of the public tranquillity or the
commission of any offence or for the public safety, may, for reasons to be recorded in
writing, direct the person in respect of whom the order under section 111 has been made
to execute a bond, with or without sureties, for keeping the peace or maintaining good
behaviour until the conclusion of the inquiry, and may detail him in custody until such
bond is executed or, in default of execution, until the inquiry is concluded:

Provided that-

(a) no person against whom proceedings are not being taken under section 108, section
109, or section 110 shall be directed to execute a bond for maintaining good behaviour;

(b) the conditions of such bond, whether as to the amount thereof or as to the provision
of sureties or the number thereof or the pecuniary extent of their liability, shall not be
more onerous than those specified in the order under section 111.

(4) For the purpose of this section the fact that a person is an habitual offender or is so
desperate and dangerous as to render his being at large without security hazardous to
the community may be proved by evidence of general repute or otherwise.

(5) Where two or more persons have been associated together in the matter under
inquiry, they may be dealt with in the same or separate inquiries as the Magistrate shall
think just.

(6) The inquiry under this section shall be completed within a period of six months from
the date of its commencement, and if such inquiry is not so completed, the proceedings

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under this Chapter shall on the expiry of the said period, stand terminated unless, for
special reasons to be recorded in writing, the Magistrate otherwise directs:

Provided that where any person has been kept in detention pending such inquiry, the
proceeding against that person, unless terminated earlier, shall stand terminated on the
expiry of a period of six months of such detention.

(7) Where any direction is made under sub-section (6) permitting the continuance of
proceedings, the Sessions Judge may, on an application made to him by the aggrieved
party, vacate such direction if he is satisfied that it was not based on any special reason
or was perverse.

117.Order to give security.- If, upon such inquiry, it is proved that it is necessary for
keeping the peace or maintaining good behaviour, as the case may be, that the person
in respect of whom the inquiry is made should execute a bond, with or without sureties,
the Magistrate shall make an order accordingly:

Provided that-

(a) no person shall be ordered to give security of a nature different from, or of an amount
large than, or for a period longer than, that specified in the order made under section
111;

(b) the amount of every bond shall be fixed with due regard to the circumstances of the
case and shall not be excessive;

(c) when the person in respect of whom the inquiry is made is a minor, the bond shall be
executed only by his sureties.

118.Discharge of person informed against.- If, on an inquiry under section 116, it is not
proved that it is necessary for keeping the peace or maintaining good behaviour, as the
case may be, that the person in respect of whom the inquiry is made, should execute a
bond, the Magistrate shall make an entry on the record to that effect, and if such person
is in custody only for the purposes of the inquiry, shall release him, or, if such person is

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not in custody, shall discharge him.

119.Commencement of period for which security is required.-(1) If any person, in respect

of whom an order requiring security is made under section 106 or section 117, is, at the
time such order is made, sentenced to, or undergoing a sentence of, imprisonment, the
period for which such security is required shall commence on the expiration of such
sentence.

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

120.Contents of bond.-The bond to be executed by any such person shall bind him to
keep the peace or to be of good behaviour, as the case may be, and in the latter case
the commission or attempt to commit, or the abetment of, any offence punishable with
imprisonment, wherever it may be committed, is a breach of the bond.

121.Power to reject sureties.- (1) A Magistrate may refuse to accept any surety offered,
or may reject any surety previously accepted by him or his predecessor under this
Chapter on the ground that such surety is an unfit person for the purposes of the bond:

Provided that, before so refusing to accept or rejecting any such surety, he shall either
himself hold an inquiry on oath into the fitness of the surety, or cause such inquiry to be
held and a report to be made thereon by a Magistrate subordinate to him.

(2) Such Magistrate shall, before holding the inquiry, give reasonable notice to the surety
and to the person by whom the surety was offered and shall, in making the inquiry,
record the substance of the evidence adduced before him.

(3) If the Magistrate is satisfied, after considering the evidence so adduced either before
him or before a Magistrate deputed under sub-section (1), and the report of such
Magistrate (if any), that the surety is an unfit person for the purposes of the bond, he

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shall make an order refusing to accept or rejecting, as the case may be, such surety and
recording his reasons for so doing:

Provided that, before making an order rejecting any surety who has previously been
accepted, the Magistrate shall issue his summons or warrant, as he thinks fit, and cause
the person for whom the surety is bound to appear or to be brought before him.

122.Imprisonment in default of security.-(1) (a) If any person ordered to give security

under section 106 or section 117 does not give such security on or before the date on
which the period for which such security is to be given commences, he shall, except in
the case next hereinafter mentioned, be committed to prison, or, if he is already in
prison, be detained in prison until such period expires or until within such period he gives
the security to the Court or Magistrate who made the order requiring it.

(b) If any person after having executed a bond without sureties for keeping the peace in
pursuance of an order of a Magistrate under section 117, is proved, to the satisfaction of
such Magistrate or his successor-in-office, to have committed breach of the bond, such
Magistrate or successor-in-office may, after recording the grounds of such proof, order
that the person be arrested and detained in prison until the expiry of the period of the
bond and such order shall be without prejudice to any other punishment or forfeiture to
which the said person may be liable in accordance with law.

(2) When such person has been ordered by a Magistrate to give security for a period
exceeding one year, such Magistrate shall, if such person does not give such security as
aforesaid, issue a warrant directing him to be detained in prison pending the orders of
the Sessions Judge and the proceedings shall be laid, as soon as conveniently may be,
before such Court.

(3) Such Court, after examining such proceedings and requiring from the Magistrate any
further information or evidence which it thinks necessary, and after giving the concerned
person a reasonable opportunity of being heard, may pass such order on the case as it
thinks fit:

Provided that the period (if any) for which any person is imprisoned for failure to give
security shall not exceed three years.

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(4) If security has been required in the course of the same proceeding from two or more
persons in respect of any one of whom the proceedings are referred to the Sessions
Judge under sub-section (2), such reference shall also include the case of any other of
such persons who has been ordered to give security, and the provisions of sub-sections
(2) and (3) shall, in that event, apply to the case of such other person also, except that
the period (if any) for which he may be imprisoned shall not exceed the period for which
he was ordered to give security.

(5) A Sessions Judge may in his discretion transfer any proceedings laid before him
under sub-section (2) or sub-section (4) to an Additional Sessions Judge or Assistant
Sessions Judge and upon such transfer, such Additional Sessions Judge or Assistant
Sessions Judge may exercise the powers of a Sessions Judge under this section in
respect of such proceedings.

(6) If the security is tendered to the officer in charge of the jail, he shall forthwith refer the
matter to the Court or Magistrate who made the order, and shall await the orders of such
Court or Magistrate.

(7) Imprisonment for failure to give security for keeping the peace shall be simple.

(8) Imprisonment for failure to give security for good behaviour shall, where the
proceedings have been taken under section 108, be simple, and, where the proceedings
have been taken under section 109 or section 110, be rigorous or simple as the Court or
Magistrate in each case directs.

123.Power to release persons imprisoned for failing to give security.- (1) Whenever the
Chief Judicial Magistrate is of opinion that any person imprisoned for failing to give
security under this Chapter may be released without hazard to the community or to any
other person, he may order such person to be discharged.

(2) Whenever any person has been imprisoned for failing to give security under this
Chapter, the High Court or Court of Session, or, where the order was made by any other
Court, the Chief Judicial Magistrate, may make an order reducing the amount of the
security or the number of sureties or the time for which security has been required.

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(3) An order under sub-section (1) may direct the discharge of such person either
without conditions or upon any conditions which such person accepts:

Provided that any condition imposed shall cease to be operative when the period for
which such person was ordered to give security has expired.

(4) The State Government may prescribe the conditions upon which a conditional
discharge may be made.

(5) If any condition upon which any person has been discharged it, in the opinion of the
Chief Judicial Magistrate by whom the order of discharge was made or of his successor,
not fulfilled, he may cancel the same.

(6) When a conditional order of discharge has been cancelled under sub-section (5),
such person may be arrested by any police officer without warrant, and shall thereupon
be produced before the Chief Judicial Magistrate.

(7) Unless such person gives security in accordance with the terms of the original order
for the unexpired portion of the term for which he was in the first instance committed or
ordered to be detained (such portion being deemed to be a period equal to the period
between the date of the breach of the conditions of discharge and the date on which,
except for such conditional discharge, he would have been entitled to release), the Chief
Judicial Magistrate may remand such person to prison to undergo such unexpired
portion.

(8) A person remanded to prison under sub-section (7) shall, subject to the provisions of
section 122, be released at any time on giving security in accordance with the terms of
the original order for the unexpired portion aforesaid to the Court or Magistrate by whom
such order was made, or to its or his successor.

(9) The High Court or Court of Session may at any time, for sufficient reasons to be
recorded in writing, cancel any bond for keeping the peace or for good behaviour
executed under this Chapter by any order made by it, and the Chief Judicial Magistrate

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may make such cancellation where such bond was executed under his order or under
the order of any other Court in his direct.

(10) Any surety for the peaceable conduct or good behaviour of another person ordered
to execute a bond under this Chapter may at any time apply to the Court making such
order to cancel the bond and on such application being made, the Court shall issue a
summons or warrant, as it thinks fit, requiring the person for whom such surety is bound
to appear or to be brought before it.

124.Security for unexpired period of bond.-(1) When a person for whose appearance a
summons or warrant has been issued under the proviso to sub-section (3) of section 121
or under sub-section (10) of section 123, appears or is brought before the Magistrate or
Court, the Magistrate or Court shall cancel the bond executed by such person and shall
order such person to give, for the unexpired portion of the term of such bond, fresh
security of the same description as the original security.

(2) Every such order shall, for the purposes of sections 120 to 123 (both inclusive), be
deemed to be an order made under section 106 or section 117, as the case may be.

129.Dispersal of assembly by use of civil force.- (1) Any Executive Magistrate or officer
incharge of a police station or, in the absence of such officer incharge, any police officer,
not below the rank of a sub-inspector, may command any unlawful assembly, or any
assembly of five or more persons likely to cause a disturbance of the public peace, to
disperse; and it shall thereupon be the duty of the members of such assembly to
disperse accordingly.

(2) If, upon being so commanded, any such assembly does not disperse, or if, without
being so commanded, it conducts itself in such a manner as to show a determination not
to disperse, any Executive Magistrate or police officer referred to in sub-section (1), may
proceed to disperse such assembly by force, and may require the assistance of any
male person, not being an officer or member of the armed forces and acting as such, for
the purpose of dispersing such assembly, and, if necessary, arresting and confining the

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persons who form part of it, in order to disperse such assembly or that they may be
punished according to law.

130.Use of armed forces to disperse assembly.- (1) If any such assembly cannot be
otherwise dispersed, and if it is necessary for the public security that it should be
dispersed, the Executive Magistrate of the highest rank who is present may cause it to
be dispersed by the armed forces.

(2) Such Magistrate may require any officer in command of any group of persons
belonging to the armed forces to disperse the assembly with the help of the armed
forces under his command, and to arrest and confine such persons forming part of it as
the Magistrate may direct, or as it may be necessary to arrest and confine in order to
disperse the assembly or to have them punished according to law.

(3) Every such officer of the armed forces shall obey such requisition in such manner as
he thinks fit, but in so doing he shall use as little force, and do as little injury to person
and property, as may be consistent with dispersing the assembly and arresting and
detaining such persons.

131.Power of certain armed force officers to disperse assembly.-When the public

security is manifestly endangered by any such assembly and no Executive Magistrate
can be communicated with, any commissioned or gazetted officer of the armed forces
may disperse such assembly with the help of the armed forces under his command, and
may arrest and confine any persons forming part of it, in order to disperse such
assembly or that they may be punished according to law; but if, while he is acting under
this section, it becomes practicable for him to communicate with an Executive
Magistrate, he shall do so, and shall thenceforward obey the instructions of the
Magistrate, as to whether he shall or shall not continue such action.

132.Protection against prosecution for acts done under preceding sections.- (1)No
prosecution against any person for any act purporting to be done under section 129,
section 130 or section 131 shall be instituted in any Criminal Court except –

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(a) with the sanction of the Central Government where such person is an officer or
member of the armed forces;

(b) with the sanction of the State Government in any other case.

(2) (a) No Executive Magistrate or police officer acting under any of the said sections in
good faith;

(b) no person doing any act in good faith in compliance with a requisition under section
129 or section 130;

(c) no officer of the armed forces acting under section 131 in good faith;

(d) no member of the armed forces doing any act in obedience to any order which he
was bound to obey,

shall be deed to have thereby committed an offence.

(3) In this section and in the preceding sections of this Chapter, -

(a) the expression "armed forces" means the military, naval and air forces, operating as
land forces and includes any other Armed Forces of the Union so operating;

(b)"officer", in relation to the armed forces, means a person commissioned, gazetted or

in pay as an officer of the armed forces and includes a junior commissioned officer, a
warrant officer, a petty officer, a non-commissioned officer and a non-gazetted officer;

(c)"member", in relation to the armed forces, means a person in the armed forces other
than an officer.

B.- Public nuisances

133.Conditional order for removal of nuisance.- (1) Whenever a District Magistrate or a

Sub-divisional Magistrate or any other Executive Magistrate specially empowered in this
behalf by the State Government, on receiving the report of a police officer or other
information and on taking such evidence (if any) as he thinks fit, considers -

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

(b) that the conduct of any trade or occupation, or the keeping of any goods or
merchandise, is injurious to the health or physical comfort of the community , and that in
consequence such trade or occupation should be prohibited or regulated or such goods
or merchandise should be removed or the keeping thereof regulated; or

(c) that the construction of any building, or, the disposal of any substance , as is likely to
occasion conflagration or explosion, should be prevented or stopped; or

(d) that any building, tent or structure, or any tree is in such a condition that it is likely to
fall and thereby cause injury to persons living or carrying on business in the
neighbourhood or passing by, and that in consequence the removal, repair or support of
such building, tent or structure, or the removal or support of such tree, is necessary; or

(e) that any tank, well or excavation adjacent to any such way or public place should be
fenced in such manner as to prevent danger arising to the public; or

(f) that any dangerous animal should be destroyed, confined or otherwise disposed of,

such Magistrate may make a conditional order requiring the person causing such
obstruction or nuisance, or carrying on such trade or occupation, or keeping any such
goods or merchandise, or owning, possessing or controlling such building, tent,
structure, substance, tank, well or excavation, or owning or possessing such animal or
tree, within a time to be fixed in the order-

(i) to remove such obstruction or nuisance; or

(ii) to desist from carrying on, or to remove or regulate in such manner as may be
directed, such trade or occupation, or to remove such goods or merchandise, or to
regulate the keeping thereof in such manner as may be directed; or

(iii) to prevent or stop the construction of such building, or to alter the disposal of such
substance; or

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(iv) to remove, repair or support such building, tent or structure, or to remove or support
such trees; or

(v) to fence such tank, well or excavation; or

(vi) to destroy, confine or dispose of such dangerous animal in the manner provided in
the said order;

or, if he objects so to do, to appear before himself or some other Executive Magistrate
subordinate to him at a time and place to be fixed by the order, and show cause, in the
manner hereinafter provided, why the order should not be made absolute.

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

Explanation.- A "public place" includes also property belonging to the State, camping
grounds and left unoccupied for sanitary or recreative purposes.

134.Service or notification of order.- (1)The order shall, if practicable, be served on the

person against whom it is made, in the manner herein provided for service of a
summons.

(2) If such order cannot be so served, it shall be notified by proclamation, published in

such manner as the State Government may, by rules, direct, and a copy thereof shall be
stuck up at such place or places as may be fittest for conveying the information to such
person.

135.Person to whom order is addressed to obey or show cause.-

The person against whom such order is made shall –

(a) perform, within the time and in the manner specified in the order, the act directed
thereby; or

(b) appear in accordance with such order and show cause against the same.

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136.Consequences of his failing to do so.- If such person does not perform such act or
appear and show cause, he shall be liable to the penalty prescribed in that behalf in
section 188 of the Indian Penal Code, (45 of 1860)and the order shall be made absolute.

137.Procedure where existence of public right is denied.- (1) Where an order is made
under section 133 for the purpose of preventing obstruction, nuisance or danger to the
public in the use of any way, river, channel or place, the Magistrate shall, on the
appearance before him of the person against whom the order was made, question him
as to whether he denies the existence of any public right in respect of the way, river,
channel or place, and if he does so, the Magistrate shall, before proceeding under
section 138, inquire into the matter.

(2) If in such inquiry the Magistrate finds that there is any reliable evidence in support of
such denial, he shall stay the proceedings until the matter of the existence of such right
has been decided by a competent Court; and, if he finds that there is no such evidence,
he shall proceed as laid down in section 138.

(3) A person who has, on being questioned by the Magistrate under sub-section (1),
failed to deny the existence of a public right of the nature therein referred to, or who,
having made such denial, has failed to adduce reliable evidence in support thereof, shall
not in the subsequent proceedings be permitted to make any such denial.

138.Procedure where he appears to show cause.- (1) If the person against whom an
order under section 133 is made appears and shows cause against the order, the
Magistrate shall take evidence in the matter as in a summons-case.

(2) If the Magistrate is satisfied that the order, either as originally made or subject to
such modification as he considers necessary, is reasonable and proper, the order shall
be made absolute without modification or, as the case may be, with such modification.

(3) If the Magistrate is not so satisfied, no further proceedings shall be taken in the case.

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139.Power of Magistrate to direct local investigation and examination of an expert.- The
Magistrate may, for the purposes of an inquiry under section 137 or section 138-

(a) direct a local investigation to be made by such person as he thinks fit; or

(b) summon and examine an expert.

140.Power of Magistrate to furnish written instructions, etc.- (1) Where the Magistrate
directs a local investigation by any person under section 139, the Magistrate may -

(a) furnish such person with such written instructions as may seem necessary for his
guidance;

(b) declare by whom the whole or any part of the necessary expenses of the local
investigation shall be paid.

(2) The report of such person may be read as evidence in the case.

(3) Where the Magistrate summons and examines an expert under section 139, the
Magistrate may direct by whom the costs of such summoning and examination shall be
paid.

141.Procedure on order being made absolute and consequences of disobedience.- (1)

When an order has been made absolute under section 136 or section 138, the
Magistrate shall give notice of the same to the person against whom the order was
made, and shall further require him to perform the act directed by the order within a time
to be fixed in the notice, and inform him that, in case of disobedience, he will be liable to
the penalty provided by section 188 of the Indian Penal Code(45 of 1860).

(2) If such act is not performed within the time fixed, the Magistrate may cause it to be
performed, and may recover the costs of performing it, either by the sale of any building,

294
goods or other property removed by his order, or by the distress and sale of any other
movable property of such person within or without such Magistrate's local jurisdiction
and if such other property is without such jurisdiction, the order shall authorise its
attachment and sale when endorsed by the Magistrate within whose local jurisdiction the
property to be attached is found.

(3) No suit shall lie in respect of anything done in good faith under this section.

142.Injunction pending inquiry.- (1) If a Magistrate making an order under section 133
considers that immediate measures should be taken to prevent imminent danger or
injury of a serious kind to the public, he may issue such an injunction to the person
against whom the order was made, as is required to obviate or prevent such danger or
injury pending the determination of the matter.

(2) In default of such person forthwith obeying such injunction, the Magistrate may
himself use, or cause to be used, such means as he thinks fit to obviate such danger or
to prevent such injury.

(3) No suit shall lie in respect of anything done in good faith by a Magistrate under this
section.

143.Magistrate may prohibit repetition or continuance of public nuisance.- A District

Magistrate or Sub-divisional Magistrate, or any other Executive Magistrate empowered
by the State Government or the District Magistrate in this behalf, may order any person
not to repeat or continue a public nuisance, as defined in the Indian Penal Code, (45 of
1860) or any special or local law.

C.- Urgent cases of nuisance or apprehended danger

144.Power to issue order in urgent cases of nuisance or apprehended danger.- (1) In

cases where, in the opinion of a District Magistrate, a Sub-divisional Magistrate or any
other Executive Magistrate specially empowered by the State Government in this behalf,
there is sufficient ground for proceeding under this section and immediate prevention or

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speedy remedy is desirable, such Magistrate may, by a written order stating the material
facts of the case and served in the manner provided by section 134, direct any person to
abstain from a certain act or to take certain order with respect to certain property in his
possession or under his management, if such Magistrate considers that such direction is
likely to prevent, or tends to prevent, obstruction, annoyance or injury to any person
lawfully employed, or danger to human life, health or safety, or a disturbance of the
public tranquillity, or a riot, or an affray.

(2) An order under this section may, in cases of emergency or in cases where the
circumstances do not admit of the serving in due time of a notice upon the person
against whom the order is directed, be passed ex parte.

(3) An order under this section may be directed to a particular individual, or to persons
residing in a particular place or area, or to the public generally when frequenting or
visiting a particular place or area.

(4) No order under this section shall remain in force for more than two months from the
making thereof:

Provided that, if the State Government considers it necessary so to do for preventing

danger to human life, health or safety or for preventing a riot or any affray, it may, by
notification, direct that an order made by a Magistrate under this section shall remain in
force for such further period not exceeding six months from the date on which the order
made by the Magistrate would have, but for such order, expired, as it may specify in the
said notification.

(5) Any Magistrate may, either on his own motion or on the application of any person
aggrieved, rescind or alter any order made under this section, by himself or any
Magistrate subordinate to him or by his predecessor-in-office.

(6) The State Government may, either on its own motion or on the application of any
person aggrieved, rescind or alter any order made by it under the proviso to sub-section
(4).

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(7) Where an application under sub-section (5) or sub-section (6) is received, the
Magistrate, or the State Government, as the case may be, shall afford to the applicant
an early opportunity of appearing before him or it, either in person or by pleader and
showing cause against the order; and if the Magistrate or the State Government, as the
case may be, rejects the application wholly or in part, he or it shall record in writing the
reasons for so doing.

D.- Disputes as to immovable property

145.Procedure where dispute concerning land or water is likely to cause breach of

peace.- (1) Whenever an Executive Magistrate is satisfied from a report of a police or
upon other information that a dispute likely to cause a breach of the peace exists
concerning any land or water or the boundaries thereof, within his local jurisdiction, he
shall make an order in writing, stating the grounds of his being so satisfied, and requiring
the parties concerned in such dispute to attend his Court in person or by pleader on a
specified date and time, and to put in written statements of their respective claims as
respects the fact of actual possession of the subject of dispute.

(2) For the purposes of this section, the expression "land or water" includes buildings,
markets, fisheries, crops or other produce of land, and the rents or profits of any such
property.

(3) A copy of the order shall be served in the manner provided by this Code for the
service of a summons upon such person or persons as the Magistrate may direct, and at
least one copy shall be published by being affixed to some conspicuous place at or near
the subject of dispute.

(4) The Magistrate shall then, without reference to the merits or the claims of any of the
parties to a right to possess the subject of dispute, peruse the statements so put in, hear
the parties, receive all such evidence as may be produced by them, take such further
evidence, if any, as he thinks necessary, and, if possible, decide whether any and which

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of the parties was, at the date of the order made by him under sub-section (1), in
possession of the subject of dispute:

Provided that if it appears to the Magistrate that any party has been forcibly and
wrongfully dispossessed within two months next before the date on which the report of a
police officer or other information was received by the Magistrate, or after that date and
before the date of his order under sub-section (1), he may treat the party so
dispossessed as if that party had been in possession on the date of his order under sub-
section (1).

(5) Nothing in this section shall preclude any party so required to attend, or any other
person interested, from showing that no such dispute as aforesaid exists or has existed;
and in such case the Magistrate shall cancel his said order, and all further proceedings
thereon shall be stayed, but, subject to such cancellation, the order of the Magistrate
under sub-section (1) shall be final.

(6) (a) If the Magistrate decides that one of the parties was, or should under the proviso
to sub-section (4) be treated as being, in such possession of the said subject, he shall
issue an order declaring such party to be entitled to possession thereof until evicted
therefrom in due course of law, and forbidding all disturbance of such possession until
such eviction; and when he proceeds under the proviso to sub-section (4), may restore
to possession the party forcibly and wrongfully dispossessed.

(b) The order made under this sub-section shall be served and published in the manner
laid down in sub-section (3).

(7) When any party to any such proceeding dies, the Magistrate may cause the legal
representative of the deceased party to be made a party to the proceeding and shall
thereupon continue the inquiry, and if any question arises as to who the legal
representative of a deceased party for the purposes of such proceeding is, all persons
claiming to be representatives of the deceased party shall be made parties thereto.

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(8) If the Magistrate is of opinion that any crop or other produce of the property, the
subject of dispute in a proceeding under this section pending before him, is subject to
speedy and natural decay, he may make an order for the proper custody or sale of such
property, and, upon the completion of the inquiry, shall make such order for the disposal
of such property, or the sale-proceeds thereof, as he thinks fit.

(9) The Magistrate may, if he thinks fit, at any stage of the proceedings under this
section, on the application of either party, issue a summons to any witness directing him
to attend or to produce any document or thing.

(10) Nothing in this section shall be deemed to be in derogation of the powers of the
Magistrate to proceed under section 107.

146.Power to attach subject of dispute and to appoint receiver.- (1) If the Magistrate at
any time after making the order under sub-section (1) of section 145 considers the case
to be one of emergency, or if he decides that none of the parties was then in such
possession as is referred to in section 145, or if he is unable to satisfy himself as to
which of them was then in such possession of the subject of dispute, he may attach the
subject of dispute until a competent Court has determined the rights of the parties
thereto with regard to the person entitled to the possession thereof:

Provided that such Magistrate may withdraw the attachment at any time if he is satisfied
that there is no longer any likelihood of breach of the peace with regard to the subject of
dispute.

(2) When the Magistrate attaches the subject of dispute, he may, if no receiver in relation
to such subject of dispute has been appointed by any Civil Court, make such
arrangements as he considers proper for looking after the property or if he thinks fit,
appoint a receiver thereof, who shall have, subject to the control of the Magistrate, all the
powers of a receiver appointed under the Code of Civil Procedure, 1908:

Provided that in the event of a receiver being subsequently appointed in relation to the
subject of dispute by any Civil Court, the Magistrate-

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(a) shall order the receiver appointed by him to hand over the possession of the subject
of dispute to the receiver appointed by the Civil Court and shall thereafter discharge the
receiver appointed by him;

(b) may make such other incidental or consequential orders as may be just.

147.Dispute concerning right of use of land or water.- (1) Whenever an Executive

Magistrate is satisfied from the report of a police officer or upon other information, that a
dispute likely to cause a breach of the peace exists regarding any alleged right of user of
any land or water within his local jurisdiction, whether such right be claimed as an
easement or otherwise, he shall make an order in writing, stating the grounds of his
being so satisfied and requiring the parties concerned in such dispute to attend his Court
in person or by pleader on a specified date and time and to put in written statements of
their respective claims.

Explanation.- The expression "land or water" has the meaning given to it in sub-section
(2) of section 145.

(2) The Magistrate shall then peruse the statements so put in, hear the parties, receive
all such evidence as may be produced by them respectively, consider the effect of such
evidence, take such further evidence, if any, as he thinks necessary and, if possible,
decide whether such right exists; and the provisions of section 145 shall, so far as may
be, apply in the case of such inquiry.

(3) If it appears to such Magistrate that such rights exist, he may make an order
prohibiting any interference with the exercise of such right, including, in a proper case,
an order for the removal of any obstruction in the exercise of any such right:

Provided that no such order shall be made where the right is exercisable at all times of
the year, unless such right has been exercised within three months next before the
receipt under sub-section (1) of the report of a police officer or other information leading

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to the institution of the inquiry, or where the right is exercisable only at particular
seasons or on particular occasions, unless the right has been exercised during the last
of such seasons or on the last of such occasions before such receipt.

(4) When in any proceedings commenced under sub-section (1) of section 145 the
Magistrate finds that the dispute is as regards an alleged right of user of land or water,
he may, after recording his reasons, continue with the proceedings as if they had been
commenced under sub-section (1);

and when in any proceedings commenced under sub-section (1) the magistrate finds
that the dispute should be dealt with under section 145, he may, after recording his
reasons, continue with the proceedings as if they had been commenced under sub-
section (1) of section 145.

148.Local inquiry.- (1) Whenever a local inquiry is necessary for the purposes of section
145, section 146 or section 147, a District Magistrate or Sub-divisional Magistrate may
depute any Magistrate subordinate to him to make the inquiry, and may furnish him with
such written instructions as may seem necessary for his guidance, and may declare by
whom the whole or any part of the necessary expenses of the inquiry shall be paid.

(2) The report of the person so deputed may be read as evidence in the case.

(3) When any costs have been incurred by any party to a proceeding under section 145,
section 146 or section 147, the Magistrate passing a decision may direct by whom such
costs shall be paid, whether by such party or by any other party to the proceeding, and
whether in whole or in part or proportion and such costs may include any expenses
incurred in respect of witnesses and of pleaders' fees, which the Court may consider
reasonable.

151.Arrest to prevent the commission of cognizable offences.- (1) A police officer

knowing of a design to commit any cognizable offence may arrest, without orders from a
Magistrate and without a warrant, the person so designing, if it appears to such officer

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that the commission of the offence cannot be otherwise prevented.

(2) No person arrested under sub-section (1) shall be detained in custody for a period
exceeding twenty-four hours from the time of his arrest unless his further detention is
required or authorised under any other provisions of this Code or of any other law for the
time being in force.

152.Prevention of injury to public property.- A police officer may of his own authority
interpose to prevent any injury attempted to be committed in his view to any public
property, movable or immovable, or the removal of injury of any public landmark or buoy
or other mark used for navigation.

153.Inspection of weights and measures.- (1) Any officer in charge of a police station
may, without a warrant, enter any place within the limits of such station for the purpose
of inspecting or searching for any weights or measures or instruments for weighing, used
or kept therein, whenever he has reason to believe that there are in such place any
weights, measures or instruments for weighing which are false.

(2) If he finds in such place any weights, measures or instruments for weighing which
are false, he may seize the same, and shall forthwith give information of such seizure to
a Magistrate having jurisdiction.

165.Search by police officer.- (1) Whenever an officer in charge of a police station or a

police officer making an investigation has reasonable grounds for believing that anything
necessary for the purposes of an investigation into any offence which he is authorised to
investigate may be found in any place within the limits of the police station of which he is
in charge, or to which he is attached, and that such thing cannot in his opinion be
otherwise obtained without undue delay, such officer may, after recording in writing the
grounds of his belief and specifying in such writing, so far as possible, the thing for which
search is to be made, search, or cause search to be made, for such thing in any place
within the limits of such station.

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(2) A police officer proceeding under sub-section (1), shall, if practicable, conduct the
search in person.

(3) If he is unable to conduct the search in person, and there is no other person
competent to make the search present at the time, he may, after recording in writing his
reasons for so doing, require any officer subordinate to him to make the search, and he
shall deliver to such subordinate officer an order in writing, specifying the place to be
searched, and so far as possible, the thing for which search is to be made; and such
subordinate officer may thereupon search for such thing in such place.

(4) The provisions of this Code as to search-warrants and the general provisions as to
searches contained in section 100 shall, so far as may be, apply to a search made under
this section.

(5) Copies of any record made under sub-section (1) or sub-section (3) shall forthwith be
sent to the nearest Magistrate empowered to take cognizance of the offence, and the
owner or occupier of the place searched shall, on application, be furnished, free of cost,
with a copy of the same by the Magistrate.

174.Police to enquire and report on suicide, etc.- (1) When the officer in charge of a
police station or some other police officer specially empowered by the State Government
in that behalf receives information that a person has committed suicide, or has been
killed by another or by an animal or by machinery or by an accident, or has died under
circumstances raising a reasonable suspicion that some other person has committed an
offence, he shall immediately give intimation thereof to the nearest Executive Magistrate
empowered to hold inquests, and, unless otherwise directed by any rule prescribed by
the State Government, or by any general or special order of the District or Sub-divisional
Magistrate, shall proceed to the place where the body of such deceased person is, and
there, in the presence of two or more respectable inhabitants of the neighbourhood, shall
make an investigation, and draw up a report of the apparent cause of death, describing
such wounds, fractures, bruises, and other marks of injury as may be found on the body,

303
and stating in what manner, or by what weapon or instrument (if any); such marks
appear to have been inflicted.

(2) The report shall be signed by such police officer and other persons, or by so many of
them as concur therein, and shall be forthwith forwarded to the District Magistrate or the
Sub-divisional Magistrate.

(3) When there is any doubt regarding the cause of death, or when for any other reason
the police officer considers it expedient so to do, he shall, subject to such rules as the
State Government may prescribe in this behalf, forward the body, with a view to its being
examined, to the nearest Civil Surgeon, or other qualified medical man appointed in this
behalf by the State Government, if the state of the weather and the distance admit of its
being so forwarded without risk of such putrefaction on the road as would render such
examination useless.

(4) The following Magistrates are empowered to hold inquests, namely, any District
Magistrate or Sub-divisional Magistrate and any other Executive Magistrate specially
empowered in this behalf by the State Government or the District Magistrate.

175.Power to summon persons.- (1) A police officer proceeding under section 174 may,
by order in writing, summon two or more persons as aforesaid for the purpose of the
said investigation, and any other person who appears to be acquainted with the facts of
the case and every person so summoned shall be bound to attend and to answer truly
all questions other than questions the answers to which would have a tendency to
expose him to a criminal charge or to a penalty or forfeiture.

(2) If the facts do not disclose a cognizable offence to which section 170 applies, such
persons shall not be required by the police officer to attend a Magistrate's Court.

176.Inquiry by Magistrate into cause of death.- (1) When any person dies while in the
custody of the police, the nearest Magistrate empowered to hold inquests shall, and in
any other case mentioned in sub-section (1) of section 174, any Magistrate so
empowered may hold an inquiry into the cause of death either instead of, or in addition
to, the investigation held by the police officer; and if he does so, he shall have all the

304
powers in conducting it which he would have in holding an inquiry into an offence.

(2) The Magistrate holding such an inquiry shall record the evidence taken by him in
connection therewith in any manner hereinafter prescribed according to the
circumstances of the case.

(3) Whenever such Magistrate considers it expedient to make an examination of the

dead body of any person who has been already interred, in order to discover the cause
of his death, the Magistrate may cause the body to be disinterested and examined.

(4) Where an inquiry is to be held under this section, the Magistrate shall, wherever
practicable, inform the relatives of the deceased whose names and addresses are
known, and shall allow them to remain present at the inquiry.

Explanation.- In this section, the expression "relative" means parents, children, brothers,
sisters and spouse.

188.Offence committed outside India.- When an offence is committed outside India -

(a) by a citizen of India, whether on the high seas or elsewhere; or

(b) by a person, not being such citizen, on any ship or aircraft registered in India,

he may be dealt with in respect of such offence as if it had been committed at any place
within India at which he may be found:

Provided that, notwithstanding anything in any of the preceding sections of this Chapter,
no such offence shall be inquired into or tried in India except with the previous sanction
of the Central Government.

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190.Cognizance of offences by Magistrates.- (1) Subject to the provisions of this
Chapter, any Magistrate of the first class, and any Magistrate of the second class
specially empowered in this behalf under sub-section (2), may take cognizance of any
offence –

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

(b) upon a police report of such facts;

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

(2) The Chief Judicial Magistrate may empower any Magistrate of the second class to
take cognizance under sub-section (1) of such offences as are within his competence to
inquire into or try.

192.Making over of cases to Magistrates.- (1) Any Chief Judicial Magistrate may, after
taking cognizance of an offence, make over the case for inquiry or trial to any competent
Magistrate subordinate to him.

(2) Any Magistrate of the first class empowered in this behalf by the Chief Judicial
Magistrate may, after taking cognizance of an offence, make over the case for inquiry or
trial to such other competent Magistrate as the Chief Judicial Magistrate may, by general
or special order, specify, and thereupon such Magistrate may hold the inquiry or trial.

241.Conviction on plea of guilty.- If the accused pleads guilty, the Magistrate shall record
the plea and may, in his discretion, convict him thereon.

242.Evidence for prosecution.- (1) If the accused refuses to plead or does not plead, or
claims to be tried or the Magistrate does not convict the accused under section 241, the
Magistrate shall fix a date for the examination of witnesses.

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(2) The Magistrate may, on the application of the prosecution, issue a summons to any
of its witnesses directing him to attend or to produce any document or other thing.

(3) On the date so fixed, the Magistrate shall proceed to take all such evidence as may
be produced in support of the prosecution:

Provided that the Magistrate may permit the cross-examination of any witness to be
deferred until any other witness or witnesses have been examined or recall any witness
for further cross-examination.

243.Evidence for defence.- (1) The accused shall then be called upon to enter upon his
defence and produce his evidence; and if the accused puts in any written statement, the
Magistrate shall file it with the record.

(2) If the accused, after he has entered upon his defence, applies to the Magistrate to
issue any process for compelling the attendance of any witness for the purpose of
examination or cross-examination, or the production of any document or other thing, the
Magistrate shall issue such process unless he considers that such application should be
refused on the ground that it is made for the purpose of vexation or delay or for defeating
the ends of justice and such ground shall be recorded by him in writing:

Provided that, when the accused has cross-examined or had the opportunity of cross-
examining any witness before entering on his defence, the attendance of such witness
shall not be compelled under this section, unless the Magistrate is satisfied that it is
necessary for the ends of justice.

(3) The Magistrate may, before summoning any witness on an application under sub-
section (2), require that the reasonable incurred by the witness in attending for the
purposes of the trial be deposited in Court.

B.- Cases instituted otherwise than on police report

244.Evidence for prosecution.- (1) When, in any warrant-case instituted otherwise than
on a police report, the accused appears or is brought before a Magistrate, the Magistrate
shall proceed to hear the prosecution and take all such evidence as may be produced in
support of the prosecution.

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(2) The Magistrate may, on the application of the prosecution, issue a summons to any
of its witnesses directing him to attend or to produce any document or other thing.

245.When accused shall be discharged.- (1) If, upon taking all the evidence referred to
in section 244, the Magistrate considers, for reasons to be recorded, that no case
against the accused has been made out which, if unrebutted, would warrant his
conviction, the Magistrate shall discharge him.

(2) Nothing in this section shall be deemed to prevent a Magistrate from discharging the
accused at any previous stage of the case if, for reasons to be recorded by such
Magistrate, he considers the charge to be groundless.

246.Procedure where accused is not discharged.- (1) If, when such evidence has been
taken, or at any previous stage of the case, the Magistrate is of opinion that there is
ground for presuming that the accused has committed an offence triable under this
Chapter, which such Magistrate is competent to try and which, in his opinion, could be
adequately punished by him, he shall frame in writing a charge against the accused.
(2) The charge shall then be read and explained to the accused, and he shall be asked
whether he pleads guilty or has any defence to make.

(3) If the accused pleads guilty, the Magistrate shall record the plea, and may, in his
discretion, convict him thereon.

(4) If the accused refuses to plead, or does not plead or claims to be tried or if the
accused is not convicted under sub-section (3), he shall be required to state, at the
commencement of the next hearing of the case, or, if the Magistrate for reasons to be
recorded in writing so thinks fit, forthwith, whether he wishes to cross-examine any, and,
if so, which, of the witnesses for the prosecution whose evidence has been taken.

(5) If he says he does so wish, the witnesses named by him shall be recalled and, after
cross-examination and re-examination (if any), they shall be discharged.

(6) The evidence of any remaining witnesses for the prosecution shall next be taken, and
after cross-examination and re-examination (if any), they shall also be discharged.

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247.Evidence for defence.- The accused shall then be called upon to enter upon his
defence and produce his evidence; and the provisions of section 243 shall apply to the
case.

C.- Conclusion of trial

248.Acquittal or conviction.-(1) If, in any case under this Chapter in which a charge has
been framed, the Magistrate finds the accused not guilty, he shall record an order of
acquittal.

(2) Where, in any case under this Chapter, the Magistrate finds the accused guilty, but
does not proceed in accordance with the provisions of section 325 or section 360, he
shall, after hearing the accused on the question of sentence, pass sentence upon him
according to law.

(3) Where, in any case under this Chapter, a previous conviction is charged under the
provisions of sub-section (7) of section 211 and the accused does not admit that he has
been previously convicted as alleged in the charge, the Magistrate may, after he has
convicted the said accused, take evidence in respect of the alleged previous conviction,
and shall record a finding thereon:

Provided that no such charge shall be read out by the Magistrate no shall the accused
be asked to plead thereto no shall the previous conviction be referred to by the
prosecution or in any evidence adduced by it, unless and until the accused has been
convicted under sub-section (2).

249.Absence of complainant.- When the proceedings have been instituted upon

complaint, and on any day fixed for the hearing of the case, the complainant is absent,
and the offence may be lawfully compounded or is not a cognizable offence, the
Magistrate may, in his discretion, notwithstanding anything hereinbefore contained, at
any time before the charge has been framed, discharge the accused.

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254.Procedure when not convicted.- (1) If the Magistrate does not convict the accused
under section 252 or section 253, the Magistrate shall proceed to hear the prosecution
and take all such evidence as may be produced in support of the prosecution, and also
to hear the accused and take all such evidence as he produces in his defence.

(2) The Magistrate may, if he thinks fit, on the application of the prosecution or the
accused, issue a summons to any witness directing him to attend or to produce any
document or other thing.

(3) The Magistrate may, before summoning any witness on such application, require that
the reasonable expenses of the witness incurred in attending for the purposes of the trial
be deposited in Court.

268. Power of State Government to exclude certain persons from operation of

Section 267 -(1) The State Government may, at any time, having regard to the matter
specified in sub-section (2), by general or special order, direct that any person or class
of persons shall not be removed from the prison in which he or they may be confined or
detained, and thereupon, so long as the order remains in force, no order made under
Section 267, whether before or after the order of the State Government, shall have effect
in respect of such person or class of persons.

(2) Before making an order under sub-section (1), the State Government shall
have regard to the following matters, namely :--

(a) the nature of the offence for which, or the grounds on which, the
person or class of persons has been ordered to be confined or detained in
prison;

(b) the likelihood of the disturbance of public order if the person or class
of persons is allowed to be removed from the prison;

(c) the public interest, generally.

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273. Evidence to be taken in presence of accused:- Except as otherwise expressly
provided, all evidence taken in the course of the trial or other proceeding shall be taken
in the presence of the accused, or, when his personal attendance is dispensed with, in
presence of his pleader.

Explanation - In this Section, "accused" includes a person in relation to whom

any proceeding under Chapter VIII has been commenced under this Code.

274. Record in summons-cases and inquiries:-(1) In all summons-cases tried before

a Magistrate, in all inquiries under Sections 145 to 148 (both inclusive), and in all
proceedings under Section 446 otherwise than in the course of a trial, the Magistrate
shall, as the examination of each witness proceeds, make a memorandum of the
substance of his evidence in the language of the Court:

Provided that if the Magistrate is unable to make such memorandum himself, he

shall, after recording the reason of his inability, cause such memorandum to be
made in writing or from his dictation in open Court.

(2) Such memorandum shall be signed by the Magistrate and shall form part of
the record.

279. Interpretation of evidence to accused or his pleader :-(1) Whenever any

evidence is given in a language not understood by the accused, and he is present in
Court in person, it shall be interpreted to him in open Court in a language understood by
him.

(2) If he appears by pleader and the evidence is given in a language other than
the language of the Court, and not understood by the pleader, it shall be
interpreted to such pleader in that language.

(3) When documents are put for the purpose of formal proof, it shall be in the
discretion of the Court to interpret as much thereof as appears necessary.

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280. Remarks respecting demeanour of witness:-When a presiding Judge or
Magistrate has recorded the evidence of a witness, he shall also record such remarks (if
any) as he thinks material respecting the demeanour of such witness whilst under
examination.

281. Record of examination of accused :--(1) Whenever the accused is examined by

a Metropolitan Magistrate, the Magistrate shall make a memorandum of the substance of
the examination of the accused in the language of the Court and such memorandum
shall be signed by the Magistrate and shall form part of the record.

(2) Whenever the accused is examined by any Magistrate other than a

Metropolitan Magistrate, or by a Court of Session, the whole of such
examination, including every question put to him and every answer given by him,
shall be recorded in full by the presiding Judge or Magistrate himself or where he
is unable to do so owing to a physical or other incapacity, under his direction and
superintendence by an officer of the Court appointed by him in this behalf.

(3) The record shall, if practicable, be in the language in which the accused is
examined, or if that is not practicable, in the language of the Court.

(4) The record shall be shown or read to the accused, or, if he does not
understand the language in which it is written, shall be interpreted to him in a
language which he understands, and he shall be at liberty to explain or add to his
answers.

(5) It shall thereafter be signed by the accused and by the Magistrate or presiding
Judge, who shall certify under his own hand that the examination was taken in
his presence and hearing and that the record contains a full and true account of
the statement made by the accused.

(6) Nothing in this section shall be deemed to apply to the examination of an

accused person in the course of a summary trial.

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282. Interpreter to be bound to interpret truthfully:- When the services of an
interpreter are required by any Criminal Court for the interpretation of any evidence or
statement, he shall be bound to state the true interpretation of such evidence or
statement.

303. Right of person against whom proceedings instituted to be defended :- Any

person accused of offence before a Criminal Court or against whom proceedings are
instituted under this Code, may of right be defended by a pleader of his choice.

309. Power to postpone or adjourn proceedings:- (1) In every inquiry or trial, the
proceedings shall be held as expeditiously as possible, and in particular, when the
examination of witnesses has once begun, the same shall be continued from day to day
until all the witnesses in attendance have been examined, unless the Court finds the
adjournment of the same beyond the following day to be necessary for reasons to be
recorded.

If the Court after taking cognizance of an offence, or commencement of trial,

finds it necessary or advisable to postpone the commencement of, or adjourn, any
inquiry or trial, it may, from time to time, for reasons to be recorded, postpone or adjourn
the same on such terms as it thinks fit, for such time as it considers reasonable and may
by a warrant remand the accused if in custody:

Provided that no Magistrate shall remand an accused person to custody under

this Section for a term exceeding fifteen days at a time :

Provided further that when witnesses are in attendance, no adjournment or

postponement shall be granted, without examining them, except for special reasons to
be recorded in writing.

Explanation 1:- If sufficient evidence has been obtained to raise a suspicion that
the accused may have committed an offence, and it appears likely that further
evidence may be obtained by a remand, this is a reasonable cause for a remand.

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 Explanation 2 :- The terms on which an adjournment or postponement may be
granted include, in appropriate cases, the payment of costs by the prosecution or
the accused.

CODE OF CRIMINAL PROCEDURE, 1973

CHAPTER XXIV : GENERAL PROVISIONS AS TO INQUIRIES AND TRIALS

310. Local Inspection:- (1) Any judge or Magistrate may, at any stage of any inquiry,
trial or other proceeding, after due notice to the parties, visit and inspect any place in
which an offence is alleged to have been committed, or any other place which it is in his
opinion necessary to view for the purpose of properly appreciating the evidence given at
such inquiry or trial, and shall without unnecessary delay record a memorandum of any
relevant facts observed at such inspection.

(2) Such memorandum shall form part of the record of the case and if the
prosecutor, complainant or accused or any other party to the case, so desires, a
copy of the memorandum shall be furnished to him free of cost.

311. Power to summon material witness, or examine Person Present:- Any Court
may, at any stage of any inquiry, trial or other proceeding under this Code, summon any
person as a witness, or examine any person in attendance, though not summoned, as a
witness, or recall and re-examine any person already examined ; and the Court shall
summon and examine or recall and re-examine any such person if his evidence appears
to it to be essential to the just decision of the case.

312. Expenses of complainants and witnesses:- Subject to any rules made by the
State Government, any Criminal Court may, if it thinks fit, order payment, on the part of
the Government, of the reasonable expenses of any complainant or witness attending
for the purposes of any inquiry trial or other proceeding before such Court under this
Code.

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314. Oral arguments and memorandum of arguments:- (1) Any party to a proceeding
may, as soon as may be, after the close of his evidence, address concise oral
arguments; and may, before he concludes the oral arguments, if any, submit a
memorandum to the Court setting forth concisely and under distinct headings, the
arguments in support of his case and every such memorandum shall form part of the
record.

(2) A copy of every such memorandum shall be simultaneously furnished to the

opposite party.

(3) No adjournment of the proceedings shall be granted for the purpose of filing
the written arguments unless the Court, for reasons to be recorded in writing,
considers it necessary to grant such adjournment.

(4) The Court may, if it is of opinion that the arguments are not concise or
relevant, regulate arguments.

315. Accused person to be competent witness:- (1) Any person accused of an

offence before a Criminal Court shall be a competent witness for the defence and may,
evidence on oath in disproof of the charges made against him or any person charged
together with him at the same trial :

Provided that-

(a) he shall not be called as a witness except on own request in writing :

(b) his failure to give evidence shall not be made subject of any comment
by any of the parties the Court or give rise to any presumption ago
himself or any person charged together with that the same trial.

(2) Any person against whom proceedings are instituted in any Criminal Court
under Section 98, or Section 107, Section 108, or Section 109, or Section 110, or
under Chapter IX or under Part B, Part C or Part D or Chapter X, may offer
himself as a witness in such proceedings:

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 Provided that in proceedings under Section 108, Section 109, or Section 110, the
failure of such person to give evidence shall not be made the subject of any
comment by any of the parties or the Court or give rise to any presumption
against him or any other person proceeded against together with him at the same
inquiry.

321. Withdrawal from prosecution :- The Public Prosecutor or Assistant Public

Prosecutor in charge of a case may, with the consent of the Court, at any time before the
judgement is pronounced, withdraw from the prosecution of any person either generally
or in respect of any one or more of the offences for which he is tried ; and, upon such
withdrawal --

(a) if it is made before a charge has been framed, the accused shall be
discharged in respect of such offence or offences ;

(b) if it is made after a charge has been framed, or when under this Code
no charge is required, he shall be acquitted in respect of such offence or
offences:

Provided that where such offence

(i) was against any law relating to a matter to which the executive power of the Union
extends ; or

(ii) was investigated by the Delhi Special Police Establishment under the Delhi Special
Police Establishment Act, 1946 (25 of 1946) ; or

(iii) involved the misappropriation or destruction of, or damage to, any property belonging
to the Central Government ; or

(iv) was committed by a person in the service of the Central Government while acting or
purporting to act in the discharge of his official duty,

and the Prosecutor in charge of the case has not been appointed by the Central
Government, he shall not, unless he has been permitted by the Central Government to
do so, move the Court for its consent to withdraw from the prosecution and the Court

316
shall, before according consent, direct the Prosecutor to produce before it the
permission granted by the Central Government to withdraw from the prosecution.

STATE AMENDMENT

Uttar Pradesh :- After the words "in charge of a case may" insert the
words "on the written permission of the State Government to that effect
(which shall be filed in Court)" U.P. Act 18 of 1991, w.e.f 16-2-1991.

327. Court to be open :- (1) The place in which any Criminal Court is held for the
purpose of inquiring into, or trying any offence shall be deemed to be an open Court, to
which the public generally may have access, so far as the same can conveniently
contain them :

Provided that the presiding Judge or Magistrate may, if he thinks fit, order at any
stage of any inquiry into, or trial of, any particular case, that the public generally,
or any particular person, shall not have access to, or be or remain in, the room or
building used by the Court.

(2) Notwithstanding anything contained in sub- section (1), the inquiry into and
trial of rape or an offence under Section 376, Section 376-A, Section 376-B,
Section 376-C or Section 376-D of the Indian Penal Code (45 of 1860) shall be
conducted in camera :

Provided that the presiding Judge may, if he thinks fit, or on an application made
by either of the parties, allow any particular person to have access to, or be or
remain in the room or building used by Court.

(3) Where any proceedings are held under sub- section (2), it shall not be lawful
for any person to print or publish any matter in relation to any such proceedings
except with the previous permission of the Court.

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336. Power of State Government to empower officer-in-charge to discharge :- The
State Government may empower the officer in charge of the jail in which a person is
confined under the provisions of Section 330 or Section 335 to discharge all or any of
the functions of the Inspector-General of Prisons under Section 337 or Section 338.

345. Procedure in certain cases of contempt:--(1) When any such offence as is

described in Section 175, Section 178, Section 179, Section 180, or Section 228 of the
Indian Penal Code (45 of 1860), is committed in the view or presence of any Civil,
Criminal, or Revenue Court, the Court may cause the offender to be detained in custody,
and may, at any time before the rising of the Court or the same day, take cognizance of
the offence and, after giving the offender a reasonable opportunity of showing cause
why he should not be punished under this section, sentence offender to fine not
exceeding two hundred rupees, and, in default of payment of fine, to simple
imprisonment for a term which may extend to one month, unless such fine be sooner
paid.

(2) In every such case the Court shall record the fact constituting the offence,
with the statement (if any) made by the offender, as well as the finding and
sentence.

(3) If the offence is under Section 228 of the Indian Penal Code (45 of 1860), the
record shall show the nature and stage of the judicial proceeding in which the
Court interrupted or insulted was sitting, and the nature of the interruption or
insult.

353. Judgement:- (1) The judgement in every trial in any Criminal Court or original
jurisdiction shall be pronounced in open Court by the presiding officer immediately after
the termination of the trial or at some subsequent time of which notice shall be given to
the parties or their pleaders:-

(a) by delivering the whole of the judgement; or

(b) by reading out the whole of the judgement; or

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 (c) by reading out the operative part of the judgement and explaining the
substance of the judgement in a language which is understood by the
accused or his pleader.

(2) Where the judgement is delivered under clause (a) of sub-section (1), the
presiding officer shall cause it to be taken down in short-hand, sign the transcript
and every page thereof as soon as it is made ready, and write on it the date of
the delivery of the judgement in open Court.

(3) Where the judgement or the operative part thereof is read out under clause
(b) or clause (c) of sub-section (1) as the case may be, it shall be dated and
signed by the presiding officer in open Court, and if it is not written with his own
hand, every page of the judgement shall be signed by him.

(4) Where the judgement is pronounced in the manner specified in the clause (c)
of sub-section (1), the whole judgement or a copy thereof shall be immediately
made available for the perusal of the parties or their pleaders free of cost.

(5) If the accused is in custody, he shall be brought up to hear the judgement

pronounced.

(6) If the accused is not in custody, he shall be required by the Court to attend to
hear the judgement pronounced, except where his personal attendance during
the trial has been dispensed with and the sentence is one of fine only or he is
acquitted:

Provided that, where there are more accused than one, and one or more of them
do not attend the Court on the date on which judgement is to be pronounced, the
presiding officer may, in order to avoid undue delay in the disposal of the case,
pronounce the judgement notwithstanding their absence.

(7) No judgement delivered by any Criminal Court shall be deemed to be invalid

by reason only of the absence of any party or his pleader on the day or from the
place notified for the delivery thereof, or of any omission to serve, or defect in
serving, on the parties or their pleaders, or any of them, the notice of such day
and place.

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 (8) Nothing in this section shall be construed to limit in any way the extent of the
provisions of Section 465.

354. Language and contents of judgement:- (1) Except as otherwise expressly

provided by this Code, every judgement referred to in Section 353,-

(a) shall be written in the language of the Court;

(b) shall contain the point or points for determination, the decision thereon
and the reasons for the decision;

(c) shall specify the offence (if any) of which, and the Section of the Indian
Penal Code (45 of 1860) or other law under which, the accused is
convicted, and the punishment to which he is sentenced.

(d) if it be a judgement of acquittal, shall state the offence of which the

accused is acquitted and direct that he be set at liberty.

(2) When the conviction is under the Indian Penal Code (45 of 1860) and it is
doubtful under which of two sections, or under which of two parts of the same
section, of that Code the offence falls, the Court shall distinctly express the
same, and pass judgement in the alternative.

(3) When the conviction is for an offence punishable with death or, in the
alternative, with imprisonment for life or imprisonment for a term of years, the
judgement shall state the reasons for the sentence awarded, and, in the case of
sentence of death, the special reasons for such sentence.

(4) When the conviction is for an offence punishable with imprisonment for a term
of one year or more, but the Court imposes a sentence of imprisonment for a
term of less than three months, it shall record its reasons for awarding such
sentence, unless the sentence is one of imprisonment till the rising of the Court
or unless the case was tried summarily under the provisions of this Code.

(5) When any person is sentenced to death, the sentence shall direct that he be
hanged by the neck till he is dead.

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 (6) Every order under Section 117 or sub-section (2) of Section 138 and every
final order made under Section 125, Section 145 or Section 147 shall contain the
point or points for determination, the decision thereon and the reasons for the
decision.

362. Court not to alter judgement:- Save as otherwise provided by this Code or by any
other law for the time being in force, no Court, when it has signed its judgement or order
disposing of a case, shall alter or review the same except to correct a clerical or
arithmetical error.

363. Copy of judgement to be given to the accused and other persons:- (1) When
the accused is sentenced to imprisonment, a copy of the judgement shall, immediately
after the pronouncement of the judgement be given to him free of cost.

(2) On the application of the accused, a certified copy of the judgement, or when
he so desires, a translation in his own language if practicable or in the language
of the Court, shall be given to him without delay, and such copy shall, in every
case where the judgement is appealable by the accused, be given free of cost:

Provided that where a sentence of death is passed or confirmed by the High

Court, a certified copy of the judgement shall be immediately given to the
accused free of cost whether or not he applies for the same.

(3) The provisions of sub-section (2) shall apply in relation to an order under
Section 117 as they apply in relation to a judgement which is appealable by the
accused.

(4) When the accused is sentenced to death by any Court and an appeal lies
from such judgement as of right, the Court shall inform him of the period within
which, if he wishes to appeal, his appeal should be preferred.

(5) Save as otherwise provided in sub-section (2), any person affected by a

judgement or order passed by a Criminal Court shall, on an application made in

321
 this behalf and on payment of the prescribed charges, be given a copy of such
judgement or order or of any deposition or other part of the record:

Provided that the Court may, if it thinks fit for some special reasons, give it to him
free of cost.

(6) The High Court may, by rules, provide for the grant of copies of any
judgement or order of a Criminal Court to any person who is not affected by a
judgement or order, on payment, by such person, of such fees, and subject to
such conditions, as the High Court may, by such rules, provide.

STATE AMENDMENT

Karnataka :- Insert the following, after the proviso to sub-section (5),

"Provided further that the State shall, on an application made in this behalf by the
Prosecuting Officer, be given, free of cost, a certified copy of such judgement,
order deposition or record with the prescribed endorsement" - Karnataka Act 19
of 1985, w.e.f. 25-6-1985.

372. No appeal to lie unless otherwise provided:- No appeal shall lie from any
judgement or order of a Criminal Court except as provided for by this Code or by any law
for the time being in force.

382. Petition of appeal:- Every appeal shall be made in the form of a petition in writing
presented by the appellant or his pleader, and every such petition shall (unless the Court
to which it is presented otherwise directs) be accompanied by a copy of the judgement
or order appealed against.

STATE AMENDMENTS

Andaman, Nicobar Island and Lakshadweep Island:- (I) Section 382 renumbered as
sub-section (1), the following proviso shall be added to sub-section (1) so renumbered:-

"Provided that where it is not practicable to file the petition of appeal to the proper
Appellate Court, the petition of appeal may be presented to the Administrator or to an

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Executive Magistrate not below the rank of a sub-divisional Magistrate, who shall
forward the same to the proper Appellate Court; and, when any such appeal is
presented to the Administrator or to an Executive Magistrate, he shall record thereon the
date of its presentation and, if he is satisfied that, by reason of the weather, transport or
other difficulties, it is not possible for the appellant to obtain, from the proper Appellate
Court, orders for the suspension of the sentence or for bail, he may, in respect of such
appeal, or an appeal forwarded to him under Section 383 exercise all or any of the
powers of the proper Appellate Court under sub- section (1) of Section 389 with regard
to suspension of sentence or release of a convicted person on bail:

Provided further that the order so made by the Administrator or the Executive Magistrate
shall have effect until it is reversed or modified by the proper Appellate Court.

Explanation:-- For the purposes of the provisos to this Section and Section 383,
"Administrator" in relation to a Union Territory, means the Administrator appointed by the
President under Article 239 of the Constitution, for the Union Territory.

(i) After sub-section (1) so renumbered, the following sub-section (2) shall be inserted,

namely,--

(2) For the purposes of computation of the period of limitation, and for all other purposes,
an appeal presented to an Administrator or an Executive Magistrate under sub-section
(1) or, as the case may be, under section 383, shall be deemed to be an appeal
presented to the proper Appellate Court". Regulation 1 of 1974, w.e.f. 30-3-1974.

383. Procedure when appellant in jail:-- If the appellant is in jail, he may present his
petition of appeal and the copies accompanying the same to the officer in charge of the
jail, who shall thereupon forward such petition and copies to the proper Appellate Court.

STATE AMENDMENTS

Andaman, Nicobar Islands and Lakshadweep Islands:-

Insert the following words at the end:--

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"Or if, by reason of the weather, transport or other difficulties, it is not possible to forward
them to the proper Appellate Court, they shall be forwarded to the Administrator or an
Executive Magistrate, not below the rank of a Sub-Divisional Magistrate, who shall, on
receipt of such petition of appeal and copies, record thereon the date of receipt thereof
and thereafter forward the same to the proper Appellate Court". Regulation 1 of 1974,
w.e.f. 30-3-1974.

385. Procedure for hearing appeals not dismissed summarily :-(1) If the Appellate
Court does not dismiss the appeal summarily, it shall cause notice of the time and place
at which such appeal will be heard to be given:--

(i) to the appellant or his pleader;

(ii) to such officer as the State Government may appoint in this behalf;

(iii) if the appeal is from a judgement of conviction in a case instituted

upon complaint, to the complainant

(iv) if the appeal is under Section 377 or Section 378, to the accused,

and shall also furnish such officer, complainant and accused with a copy
of the grounds of appeal.

(2) The Appellate Court shall then send for the record of the case, if such record is not
already available in the Court, and hear the parties:

Provided that if the appeal is only as to the extent of the legality of the sentence, the
Court may dispose of the appeal without sending for the record.

(3) Where the only ground for appeal from a conviction is the alleged severity of the
sentence, the appellant shall not, except with the leave of the Court, urge or be heard in
support of any other ground.

386. Powers of the Appellate Court:- After perusing, such record and hearing the
appellant or his pleader, if he appears, and the Public Prosecutor, if he appears and in

324
case of an appeal under Section 377 or Section 378, the accused if he appears, the
Appellate Court may, if it considers that there is no sufficient ground for interfering,
dismiss the appeal, or may:--

(a) in an appeal from an order of acquittal, reverse such order and direct that further
inquiry be made, or

that the accused be re-tried or committed for trial, as the case may be, or find him guilty
and pass sentence on

him according to law.

(b) in an appeal from a conviction:--

(i) reverse the finding and sentence and acquit or discharge the accused, or order him to
be re-tried by a

Court of competent jurisdiction subordinate to such Appellate Court or committed for

trial, or

(ii) after the finding, maintaining the sentence, or

(iii) with or without altering the finding, alter the nature or the extent, or the nature and
extent, of the

sentence, but not so as to enhance the same--

(c) in an appeal for enhancement of sentence:--

(i) reverse the finding and sentence and acquit or discharge the accused or order him to
be re-tried

by a Court competent to try the offence, or

(ii) after the finding maintaining the sentence, or

(iii) with or without altering the finding, alter the nature or the extent, or, the nature and
extent, of

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the sentence, so as to enhance or reduce the same;

(d) in an appeal from any other order, alter or reverse such order;

(e) make any amendment or any consequential or incidental order that may be just or
proper:

Provided that the sentence shall not be enhanced unless the accused has had an
opportunity of showing cause against such enhancement:

Provided further that the Appellate Court shall not inflict greater punishment for the
offence which in its opinion the accused has committed, than might have been inflicted
for that offence by the Court passing the order or sentence under appeal.

395. Reference to High Court:--(1) Where any Court is satisfied that a case pending
before it involves a question as to the validity of any Act, Ordinance or Regulation or of
any provision contained in an Act, Ordinance or Regulation, the determination of which
is necessary for the disposal of the case, and is of opinion that such Act, Ordinance,
Regulation or provision is invalid or inoperative but has not been so declared by the High
Court to which that Court is Subordinate or by the Supreme Court, the Court shall state a
case setting out its opinion and the reasons therefor, and refer the same for the decision
of the High Court.

Explanation-- In this section, "Regulation" means any Regulation as defined in the

General Clauses Act, 1897 (10 of 1897), or in the General Clauses Act of a State.

(2) A Court of Session or a Metropolitan Magistrate may, if it or he thinks fit in any case
pending before it or him to which the provisions of sub-section (1) do not apply, refer for
the decision of the High Court any question of law arising in the hearing of such case.

(3) Any Court making a reference to the High Court under sub-section (1) or sub-section
(2) may, pending decision of the High Court thereon, either commit the accused to jail or
release him on bail to appear when called upon.

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397. Calling for records to exercise powers of revision:-(1) The High Court or any
Sessions Judge may call for and examine the record of any proceeding before any
inferior Criminal Court situate within its or his local jurisdiction for the purpose of
satisfying itself or himself; to the correctness, legality or propriety of any finding,
sentence or order, recorded or passed, and as to the regularity of any proceedings of
such inferior Court, and may, when calling, for such record, direct that the execution of
any sentence or order be suspended, and if the accused is in confinement that he be
released on bail or on his own bond pending the examination of the record.

Explanation:- All Magistrates, whether Executive or Judicial and whether exercising

original or appellate jurisdiction shall be deemed to be inferior to the Sessions Judge for
the purposes of this sub-section and of Section 398.

(2) The powers of revision conferred by sub-section (1) shall not be exercised in relation
to any interlocutor order passed in any appeal, inquiry, trial or other proceeding.

(3) If an application under this section has been made by any person either to the High
Court or to the Sessions Judge, no further application by the same person shall be
entertained by the other of them.

398. Power to order inquiry:- On examining any record under Section 397 or
otherwise, the High Court or the Sessions Judge may direct the Chief Judicial Magistrate
by himself or by any of the Magistrates subordinate to him to make, and the Chief
Judicial Magistrate may himself make, or direct any subordinate Magistrate to make,
further inquiry into any complaint which has been dismissed under Section 203 or sub-
section (4) of Section 204, or into the case of any person accused of an offence who has
been discharged:

Provided that no Court shall make any direction under this section for inquiry into the
case of any person who has been discharged unless such person has had an
opportunity of showing cause why such direction should not be made.

399. Sessions Judge's powers of revision : (1) In the case of any proceeding the
record of which has been called for by himself, the Sessions Judge may exercise all or
any of the powers which may be exercised by the High Court under sub-section (1) of
Section 401.

327
(2) Where any proceeding by way of revision is commenced before a Sessions Judge
under sub-section (1), the provisions of sub-sections (2), (3), (4) and (5) of Section 401
shall, so far as may be, apply to such proceeding and references in the said sub-
sections to the High Court shall be construed as references to the Sessions Judge.

(3) Where any application for revision is made by or on behalf of any person before the
Sessions Judge, the decision of the Sessions Judge thereon in relation to such person
shall be final and no further proceeding by way of revision at the instance of such person
shall be entertained by the High Court or any other Court.

401. High Court's powers of revision:--(1) In the case of any proceeding the record of
which has been called for by itself or which otherwise comes to its knowledge the High
Court may, in its discretion, exercise any of the powers conferred on a Court of Appeal
by Sections 386, 389, 390 and 391 or on a Court of Session by Section 307, and, when
the Judges composing the Court of Revision are equally divided in opinion, the case
shall be disposed of in the manner provided Section 392.

(2) No order under this section shall be made to the prejudice of the accused or other
person unless he has had an opportunity of being heard either personally or by plead in
his own defence.

(3) Nothing in this section shall be deemed to authorise a High Court to convert a finding
of acquittal into one conviction.

(4) Where under this Code an appeal lies and no appeal is brought, no proceeding by
way of revision shall be entertained at the instance of the party who could have,
appealed.

(5) Where under this Code an appeal lies but an application for revision has been made
to the High Court by any person and the High Court is satisfied that such application was
made under the erroneous belief that no appeal lies thereto and that it is necessary in
the interests of Justice so to do, the High Court may treat the application for revision as
a petition of appeal and deal with the same accordingly.

328
407. Power of High Court to transfer cases and appeals:-(1) Whenever it is made to
appear to the High Court:--

(a) that a fair and impartial inquiry or trial cannot be had in any Criminal
Court subordinate thereto, or

(b) that some question of law of unusual difficulty is likely to arise, or

(c) that an order under this section is required by any provision of this
Code, or will tend to the general convenience of the parties or witnesses,
or is expedient for the ends of justice,

it may order --

(i) that any offence be inquired into or tried by any Court not qualified under Sections
177 to 185 (both

inclusive), but in other respects competent to inquire into or try such offence;

(ii) that any particular case or appeal, or class of cases or appeals, be transferred from a
Criminal Court

subordinate to its authority to any other such Criminal Court of equal or superior
jurisdiction;

(iii) that any particular case be committed for trial to a Court of Session; or

(iv) that any particular case or appeal be transferred to and tried before itself

(2) The High Court may act either on the report of the lower Court, or on the application
of a party interested, or on its own initiative:

Provided that no application shall lie to the High Court for transferring a case from one
Criminal Court to another Criminal Court in the same sessions division, unless an
application for such transfer has been made to the Session Judge and rejected by him.

329
(3) Every application for an order under sub section (1) shall be made by motion, which
shall, excel when the applicant is the Advocate-General of the State, be supported by
affidavit or affirmation.

(4) When such application is made by an accused person, the High Court may direct him
to execute a bond, with or without sureties, for the payment of any compensation which
the High Court may award under sub-section (7)

(5) Every accused person making such application shall give to the Public Prosecutor
notice in writing of the application, together with a copy of the grounds on which it is
made, and no order shall be made on the merits of the applications unless at least
twenty-four hours have elapsed between the giving of such notice and the hearing of the
application.

(6) Where the application is for the transfer of a case or appeal from any Subordinate
Court, the High Court may if it is satisfied that it is necessary so to do in the interest of
Justice, order that, pending the disposal of the application the proceedings in the
Subordinate Court shall be stayed, on such terms as the High Court may think fit to
impose:

Provided that such stay shall not affect the Subordinate Court's power of remand under
Section 309.

(7) Where an application for an order under sub-section (1) is dismissed, the High Court
may, if it is of opinion that the application was frivolous or vexatious, order the applicant
to pay by way of compensation to any person who has opposed the application such
sum not exceeding one thousand rupees as it may consider proper in the circumstances
of the case.

(8) When the High Court orders under sub-section (1) that a case be transferred from
any Court for trial before itself, it shall observe in such trial the same procedure which
that Court would have observed if the case had not been so transferred.

(9) Nothing in this section shall be deemed to affect any order of Government under
Section 197.

330
411. Making over or withdrawal of cases by Executive Magistrates.- Any District
Magistrate or Sub- Divisional Magistrate may ---

(a) make over, for disposal, any proceeding which has been started before him, to any
Magistrate

subordinate to him;

(b) withdraw any case from, or recall any case which he has made over to, any
Magistrate subordinate to

him and dispose of such proceeding himself, or refer it for disposal to any other
Magistrate.

412. Reasons to be recorded:- A Sessions Judge or Magistrate making an order under

Section 408, Section 409, Section 410 or Section 411 shall record his reasons for
making it.

422. Effect of such warrant:- A warrant issued under Clause (a) of sub-section (1) of
Section 421 by any Court may be executed within the local jurisdiction of such Court,
and it shall authorise the attachment and sale of any such property outside such
jurisdiction, when it is endorsed by the District Magistrate within whose local jurisdiction
such property is found.

423. Warrant for levy of fine issued by a Court in any territory to which this Code
does not extend:- Notwithstanding anything contained in this Code or in any other law
for the time being in force, when an offender has been sentenced to pay a fine by a
Criminal Court in any territory to which this Code does not extend and the Court passing
the sentence issued a warrant to the Collector of a district in the territories to which this
Code extends, authorising him to realise the amount as if it were an arrears of land
revenue, such warrant shall be deemed to be a warrant issued under Clause (b) of sub-
section (1) of Section 421 by a Court in the territories to which this Code extends, and

331
the provisions of sub-section (3) of the said section as to the execution of such warrant
shall apply accordingly.

436. In what cases bail to be taken:---(1) When any person other than a person
accused of a non-bailable offence is arrested or detained without warrant by an officer in
charge of a police station, or appears or is brought before a Court, and is prepared at
any time while in the custody of such officer or at any stage of the proceeding before
such Court to give bail, such person shall be released on bail:

Provided that such officer or Court, if he or it thinks fit, may, instead of taking bail from
such person, discharge him on his executing a bond without sureties for his appearance
as hereinafter provided:-

Provided further that nothing in this section shall be deemed to affect the provisions of
sub-section (3) of Section 116 or Section 446A.

(2) Notwithstanding anything contained in sub-section (1), where a person has failed to
comply with the conditions of the bail bond as regards the time and place of attendance,
the Court may refuse to release him on bail, when on a subsequent occasion in the
same case he appears before the Court or is brought in custody and any such refusal
shall be without prejudice to the powers of the Court to call upon any person bound by
such bond to pay the penalty thereof under Section 446.

STATE AMENDMENTS

Uttar Pradesh:-- In sub-section, in first proviso for the word "discharge" the word
"release" shall be substituted � I.P Act 1 of 1984 w.e.f. 1-5-1984.

440. Amount of bond and reduction thereof: - (1) The amount of every bond executed
under this chapter shall be fixed with due regard to the circumstances of the case, and
shall not be excessive.

(2) The High Court or the Court of Sessions may direct that the bail required by a police
officer or Magistrate be reduced.

332
441. Bond of accused and sureties:-(1) Before any person is released on bail or
released on his own bond, a bond for such sum of money as the police officer or Court,
as the case may be, thinks sufficient shall be executed by such person, and, when he is
released on bail, by one or more sufficient sureties conditioned that such person shall
attend at the time and place mentioned in the bond, and shall continue so to attend until
otherwise directed by the police officer or Court, as the case may be.

(2) Where any condition is imposed for the release of any person on bail, the bond shall
also contain that condition.

(3) If the case so requires, the bond shall also bind the person released on bail to appear
when called upon at the High Court, Court of Sessions or other Court to answer the
charge.

(4) For the purpose of determining whether the sureties are fit or sufficient, the Court
may accept affidavits in proof of the facts contained therein relating to the sufficiency or
fitness of the sureties, or, if it considers necessary, may either hold an enquiry itself or
cause an inquiry to be made by a Magistrate subordinate to the Court, as to such
sufficiency or fitness.

442. Discharge from custody: (1) As soon as the bond has been executed, the person
for whose appearance it has been executed shall be released; and when he is in jail, the
court admitting him to bail shall issue an order of release to the officer in charge of the
jail, and such officer on receipt of the orders shall release him.

(2) Nothing in this section, Section 436 or Section 437, shall be deemed to require the
release of any person liable to be detained for some matter other than that in respect of
which the bond was executed.

444. Discharge of sureties:-(1) All or any sureties for the attendance and appearance
of a person released on bail may at any time apply to a Magistrate to discharge the
bond, either wholly or so far as relates to the applicants.

333
(2) On such application being made the Magistrate shall issue his warrant of arrest
directing that the person so released be brought before him.

(3) On the appearance of such person pursuant to the warrant, or on his voluntary
surrender, the Magistrate shall direct the bond to be discharged either wholly or so far as
relates to the applicants, and shall call upon such person to find other sufficient sureties,
and, if he fails to do so, may commit him to jail.

445. Deposit instead of recognisance:- When any person is required by any Court or
officer to execute a bond with or without sureties, such Court or officer may, except in
the case of a bond for good behaviour, permit him to deposit a sum of money or
Government promissory note to such amount as the Court or officer may fix, in lieu of
executing such bond.

446. Procedure when bond has been forfeited:-(1) Where a bond under this Code is
for appearance, or for production of property, before a Court and it is proved to the
satisfaction of that Court, or of any Court to which the case has subsequently been
transferred, that the bond has been forfeited,

or where, in respect of any other bond under this Code, it is proved to the satisfaction of
the Court by which the bond was taken or of any Court to which the case has
subsequently been transferred, or of the Court of any Magistrate of the first class, that
the bond has been forfeited,

the Court shall record the grounds of such proof, and may call upon any person bound
by such bond to pay the penalty thereof, or to show cause why it should not be paid.

Explanation:- A condition in a bond for appearance, or for production of property, before

a Court shall be construed as including a condition for appearance, or as the case may
be, for production of property, before any Court to which the case may subsequently be
transferred.

334
(2) If sufficient cause is not shown and the penalty is not paid, the Court may proceed to
recover the same as if such penalty were a fine imposed by it under this Code:

Provided that where such penalty is not paid and cannot be recovered in the manner
aforesaid, the person so bound as Surety shall be liable, by order of the Court ordering
the recovery of the penalty, to imprisonment in civil jail for a term which may extend to
six months.

(3) The Court may, as its discretion, remit any portion of the penalty mentioned and
enforce payment in part only.

(4) Where a surety to a bond dies before the bond is forfeited, his estate shall be
discharged from all liability in respect of the bond.

(5) Where any person who has furnished security under section 106 or section 117 or
section 360 is convicted of an offence the commission of which constitutes a breach of
the conditions of his bond, or of a bond executed in lieu of his bond under Section 448, a
certified copy of the judgement of the Court by which he was convicted of such offence
may be used as evidence in proceedings under this section against his surety or
sureties, and, if such certified copy is so used, the Court shall presume that such offence
was committed by him unless the contrary is proved.

446A. Cancellation of bond and bail bond: Without prejudice to the provisions of
Section 446, where a bond under this Code is for appearance of a person in a case and
it is forfeited for breach of a condition,-

(a) the bond executed by such person as well as the bond, if any, executed by one or
more of his

sureties in that case shall stand cancelled; and

(b) thereafter no such person shall be released only on his own bond in that case, if the
Police Officer

or the Court, as the case may be, for appearance before whom the bond was executed,
is, satisfied that

335
there was no sufficient cause for the failure of the person bound by the bond to comply
with its

condition:

Provided that subject to any other provisions of this code he may be released in that
case upon the execution of a fresh personal bond for such sum of money and bond by
one or more of such sureties as the Police Officer or the Court, as the case may be,
thinks sufficient.

447. Procedure in case of insolvency of death of surety or when a bond is

forfeited:- When any surety to a bond under this Code becomes insolvent or dies, or
when any bond is forfeited under the provisions of Section 446, the Court by whose
order such bond was taken, or Magistrate of the first class, may order the person from
whom such security was demanded to furnish fresh securities in accordance with the
directions of the original order, and, if such security is not furnished, such Court or
Magistrate may proceed as if there had been a default in complying with such original
Order.

448. Bond required from minor:- When the person required by any Court, or officer to
execute a bond is a minor, such Court or officer may accept, in lieu thereof, bond
executed by a surety or sureties only.

478. Power to alter functions allocated to Executive Magistrate in certain cases:- If

the Legislative Assembly of a State by a resolution so permits, the State Government
may, after consultation with the High Court, by notification, direct that references in
Sections 108, 109, 110, 145 and 147 to an Executive Magistrate shall be construed as
references to a Judicial Magistrate of the first class.

336
STATE AMENDMENTS

Andaman and Nicobar Islands ; Dadra and Nagar Haveli, Lakshadweep Islands :-
In Section 478, the words "if the State Legislature by a resolution so requires" shall be
omitted Regn. 1 of 1974, w.e.f. 30-3-1974.

Maharashtra - For the words "to an Executive Magistrate shall be construed", substitute
the words "to an Executive Magistrate in the areas of the State outside Greater Bombay
shall be construed", Maharashtra Act 1 of 1978, w.e.f. 15-4-1978.

479. Case in which Judge or Magistrate is personally interested:- No Judge or

Magistrate shall, except with permission of the Court to which an appeal lies from Court,
try or commit for trial any case to or in which he is a party, or personally interested, and
no Judge or Magistrate shall hear an appeal from any judgement or order passed or
made by himself.

Explanation:- A Judge or Magistrate shall not be deemed to be a party to, or personally

interested in, any case by reason only that he is concerned therein in a public capacity,
or by reason only that he has viewed the place in which an offence is alleged to have
been committed, or other place in which any other transaction material to the case is
alleged to have occurred, and made an inquiry in connection with the case.

000

337
 APPENDIX – VI

THE PROVISIONS RELATING TO INDIAN

PENAL CODE – WHICH ARE FOUND IN
CHAPTER XIII

INDIAN PENAL CODE

CHAPTER X

CONTEMPTS OF THE LAWFUL AUTHORITY OF PUBLIC SERVANTS

172. Absconding to avoid service of summons or other proceeding –

Whoever absconds in order to avoid being served with a summons, notice or

order proceeding from any public servant legally competent, as such public servant, to
issue such summons, notice or order, shall be punished with simple imprisonment for a
term which may extend to one month, or with fine which may extend to five hundred
rupees, or with both;

or, if the summons or notice or order is to attend in person or by agent, or to 1[produce a

document or an electronic record in a Court of Justisce], with simple imprisonment for a
term which may extend to six month, or with fine which may extend to five hundred
rupees, or with both;

1. Subs. by Act 21 of 2000, sec. 91 and Sch. I, for "produce a document in a Court of
Justice"

173. Preventing service of summons or other proceeding, or preventing

publication thereof –

338
 Whoever in any manner intentionally prevents the serving on himself, or on any
other person, of any summons, notice or order proceeding from any public
servant legally competent, such public servant, to issue such summons, notice
or order,
or intentionally prevents the lawful affixing to any place of any such summons,
notice or order,
or intentionally removes any such summons, notice or order from any place to
which it is lawfully affixed,
or intentionally prevents the lawful making of any proclamation, under the
authority of any public servant legally competent, as such public servant, to
direct such proclamation to be made,
shall be punished with simple imprisonment for a term which may extend to
one month, or with fine which may extend to five hundred rupees, or with both;
or, if the summons, notice, order or proclamation is to attend in person or by
agent, or to produce a document in a Court of Justice, with simple imprisonment
for a term which may extend to six months, or with fine which may extend to one
thousand rupees, or with both.

Non-attendance in obedience to an order from public servant:-

174. Non-attendance in obedience to an order from public servant –

Whoever, being legally bound to attend in person or by an agent at a certain
place and time in obedience to a summons, notice, order, or proclamation
proceeding from any public servant legally competent, as such public servant,
to issue the same, intentionally omits to attend at that place or time, or departs
from the place where he is bound to attend before the time at which it is lawful for
him to depart, shall be punished with simple imprisonment for a term which may
extend to one month, or with fine which may extend to five hundred rupees, or
with both; or, if the summons, notice, order or proclamation is to attend in person
or by agent in a Court of Justice, with simple imprisonment for a term which may
extend to six months, or with fine which may extend to one thousand rupees, or
with both.

Illustrations

339
 (a) A, being legally bound to appear before the 1*[High Court] at Calcutta, in
obedience to a subpoena issuing from that Court, intentionally omits to
appear. A has committed the offence defined in this section.
(b) A, being legally bound to appear before a 2*[District Judge], as a
witness, in obedience to a summons issued by that 2*[District Judge]
intentionally omits to appear. A has committed the offence defined in this
section.

175. Omission to produce document to public servant by person legally bound

to produce it –
Whoever, being legally bound to produce or deliver up any document to any
public servant, as such, intentionally omits so to produce or deliver up the same,
shall be punished with simple imprisonment for a term which may extend to one
month, or with fine which may extend to five hundred rupees, or with both;

or, if the document is to be produced or delivered up to a Court of Justice,

with simple imprisonment for a term which may extend to six months, or with
fine which may extend to one thousand rupees, or with both.

-------------------------------------------------------------------------------------------------------------
1. Subs. by the A.O. 1950, for "Supreme Court".
2. Subs. ibid., for "Zila Judge

Illustration
A, being legally bound to produce a document before a 1*[District court],
intentionally omits to produce the same. A has committed the offence defined
in this section.

176. Omission to give notice or information to public servant by person legally

bound to give it –
Whoever, being legally bound to give any notice or to furnish information on any
subject to any public servant, as such, intentionally omits to give such notice

340
 or to furnish such information in the manner and at the time required by law,
shall be punished with simple imprisonment for a term which may extend to one
month, or with fine which may extend to five hundred rupees, or with both;
or, if the notice or information required to be given respects the commission of
an offence, or is required for the purpose of preventing the commission of an
offence, or in order to the apprehension of an offender, with simple imprisonment
for a term which may extend to six months, or with fine which may extend to
one thousand rupees, or with both;
2*[or, if the notice or information required to be given is required by an order
passed under sub-section (1) of section 565 of the Code of Criminal Procedure,
1898 (5 of 1898), with imprisonment of either description for a term which may
extend to six months, or with fine which may extend to one thousand rupees, or
with both.]

Furnishing false information:-

177. Furnishing false information –

Whoever, being legally bound to furnish information on any subject to any public
servant, as such, furnishes, as true, information on the subject which he knows
or has reason to believe to be false shall be punished with simple imprisonment
for a term which may extend to six months, or with fine which may extend to one
thousand rupees, or with both;
or, if the information which he is legally bound to give respects the commission of
an offence, or is required for the purpose of preventing the commission of an
offence, or in order to the apprehension of an offender, with imprisonment of
either description for a term which may extend to two years, or with fine, or with
both.
Illustrations
(a) A, a landholder, knowing of the commission of a murder within the limits
of his estate, willfully misinforms the Magistrate of the district that the
death has occurred by accident in consequence of the bite of a snake. A
is guilty of the offence defined in this section.
(b) A, a village watchman, knowing that a considerable body of strangers
has passed through his village in order to commit a dacoity in the house

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 of Z, a wealthy merchant residing in a neighboring place, and being
bound under clause 5, section VII, 3*Regulation III, 1821, of the Bengal
Code, to give early and punctual information of the above fact to the
officer of the nearest police station, willfully misinforms the police officer
that a body of suspicious characters passed through the village with a
view to commit dacoity in a certain distant place in a different direction.
Here A is guilty of the offence defined in the latter part of this section.

1. Subs. by the A.O. 1950, for "Zila Court".

2. Ins. by Act 22 of 1939, s. 2.
3. Rep. by Act 17 of 1862.
1*[Explanation.-In section 176 and in this section the word "offence" includes any act
committed at any place out of 2*[India], which, if committed in 2*[India],
would be punishable under any of the following sections, namely, 302,
304, 382, 392, 393, 394, 395, 396, 397, 398, 399, 402, 435, 436, 449,
450, 457, 458, 459 and 460; and the word "offender" includes any person
who is alleged to have been guilty of any such act.]

178. Refusing oath or affirmation when duly required by public servant to make
it –
Whoever refuses to bind himself by an oath 3*[or affirmation] to state the truth,
when required so to bind himself by a public servant legally competent to require
that he shall so bind himself, shall be punished with simple imprisonment for a
term which may extend to six months, or with fine which may extend to one
thousand rupees, or with both.

179. Refusing to answer public servant authorized to question –

Whoever, being legally bound to state the truth on any subject to any public
servant, refuses to answer any question demanded of him touching that subject
by such public servant in the exercise of the legal powers of such public servant,
shall be punished with simple imprisonment for a term which may extend to six
months, or with fine which may extend to one thousand rupees, or with both.

342
Refusing to sign statement:-

180. Refusing to sign statement –

Whoever refuses to sign any statement made by him, when required to sign that
statement by a public servant legally competent to require that he shall sign that
statement, shall be punished with simple imprisonment for a term which may
extend to three months, or with fine which may extend to five hundred rupees, or
with both.

181. False statement on oath or affirmation to public servant or person

authorized to administer an oath or affirmation –
Whoever, being legally bound by an oath 3*[or affirmation] to state the truth on
any subject to any public servant or other person authorized by law to administer
such oath 3*[or affirmation], makes, to such public servant or other person as
aforesaid, touching that subject, any statement which is false, and which he
either knows or believes to be false or does not believe to be true, shall be
punished with imprisonment of either description for a term which may extend
to three years, and shall also be liable to fine.

182. False information, with intent to cause public servant to use his lawful
power to the injury of another person –
Whoever gives to any public servant any information which he knows or believes
to be false, intending thereby to cause, or knowing it to be likely that he will
thereby cause such public servant –
(a) to do or omit anything which such public servant ought not to do or omit if
the true state of facts respecting which such information is given were
known by him, or
(b) to use the lawful power of such public servant to the injury or annoyance
of any person, shall be punished with imprisonment of either description
for a term which may extend to six months, or with fine which may
extend to one thousand rupees, or with both.

343
Illustrations
(a) A informs a Magistrate that Z, a police-officer, subordinate to such
Magistrate, has been guilty of neglect of duty or misconduct, knowing
such information to be false, and knowing it to be likely that the
information will cause the Magistrate to dismiss Z. A has committed the
offence defined in this section.
(b) A falsely informs a public servant that Z has contraband salt in a secret
place, knowing such information to be false, and knowing that it is likely
that the consequence of the information will be a search of Z's
premises, attended with annoyance to Z. A has committed the offence
defined in this section.

(c) A falsely informs a policeman that he has been assaulted and robbed in
the neighborhood of a particular village. He does not mention the name of any person
as one of his assailants, but knows it to be likely that in consequence of this information
the police will make enquiries and institute searches in the village to the annoyance of
the villagers or some of them. A has committed an offence under this section.]

Resistance to the taking of property by the lawful authority of a

public servant:-

183. Resistance to the taking of property by the lawful authority of a public

servant –
Whoever offers any resistance to the taking of any property by the lawful
authority of any public servant, knowing or having reason to believe that he is
such public servant, shall be punished with imprisonment of either description
for a term which may extend to six months, or with fine which may extend to
one thousand rupees, or with both.

184. Obstructing sale of property offered for sale by authority of public servant
–
Whoever intentionally obstructs any sale of property offered for sale by the
lawful authority of any public servant, as such, shall be punished with

344
 imprisonment of either description for a term which may extend to one month, or
with fine which may extend to five hundred rupees, or with both.

185. Illegal purchase or bid for property offered for sale by authority of public
servant –

Whoever, at any sale of property held by the lawful authority of a public servant,
as such, purchases or bids for any property on account of any person, whether himself
or any other, whom he knows to be under a legal incapacity to purchase that property at
that sale, or bids for such property not intending to perform the obligations under
which he lays himself by such bidding, shall be punished with imprisonment of either
description for a term which may extend to one month, or with fine which may extend
to two hundred rupees, or with both.

Disobedience to order duly promulgated by public servant:-

188. Disobedience to order duly promulgated by public servant –

Whoever, knowing that, by an order promulgated by a public servant lawfully
empowered to promulgate such order, he is directed to abstain from a certain
act, or to take certain order with certain property in his possession or under his
management disobeys such direction, shall, if such disobedience causes or
tends to cause obstruction, annoyance or injury, or risk of obstruction, annoyance
or injury, to any persons lawfully employed, be punished with simple
imprisonment for a term which may extend to one month or with fine which may
extend to two hundred rupees, or with both:
and if such disobedience causes or tends to cause danger to human life, health
or safety, or causes or tends to cause a riot or affray, shall be punished with
imprisonment of either description for a term which may extend to six months,
or with fine which may extend to one thousand rupees, or with both.
Explanation – It is not necessary that the offender should intend to produce
harm, or contemplate his disobedience as likely to produce harm. It is sufficient
that he knows of the order which he disobeys, and that his disobedience
produces, or is likely to produce, harm.
Illustration

345
 An order is promulgated by a public servant lawfully empowered to promulgated
such order, directing that a religious procession shall not pass down a certain
street. A knowingly disobeys the order, and thereby causes danger of riot. A
has committed the offence defined in this section.

Punishment for false evidence –

Whoever intentionally gives false evidence in any of a judicial proceeding, or

fabricates false evidence for the purpose of being used in any stage of a judicial
proceeding, shall be punished with imprisonment of either description for a term
which may extend to seven years, and shall also be liable to fine; and whoever
intentionally gives or fabricates false evidence in any other case, shall be
punished with imprisonment of either description for a term which may extend to
three years, and shall also be liable to fine.
Explanation 1.- A trial before a Court-martial 1****is a judicial proceeding.
Explanation 2.- An investigation directed by law preliminary to a proceeding
before a Court of Justice, is a stage of a judicial proceeding, though that
investigation may not take place before a Court of Justice.
Illustration
A, in an enquiry before a Magistrate for the purpose of ascertaining whether Z
ought to be committed for trial, makes on oath a statement which he knows to be
false. As this enquiry is a stage of a judicial proceeding, A as given false
evidence.
Explanation 3.-An investigation directed by a Court of Justice according to law,
and conducted under the authority of a Court of Justice, is a stage of a judicial
proceeding, though that investigation may not take place before a Court of
Justice.
Illustration
A, in an enquiry before an officer deputed by a Court of Justice to ascertain on
the spot the boundaries of land, makes on oath a statement which he knows
to be false. As this enquiry is a stage of a judicial proceeding, A has given false
evidence.

346
194. Giving or fabricating false evidence with intent to procure conviction of
capital offence –
Whoever gives or fabricates false evidence, intending thereby to cause, or
knowing it to be likely that he will thereby cause, any person to be convicted of
an offence which is capital 2*[by the laws for the time being in force in 3*[India]]
shall be punished with 4*[imprisonment for life], or with rigorous imprisonment
for a term which may extend to ten years, and shall also be liable to fine;
If innocent person be thereby convicted and executed.
If innocent person be thereby conviceted and executed.--and if an innocent
person be convicted and executed in consequence of such false evidence, the
person who gives such false evidence shall be punished either with death or the
punishment hereinbefore described.

195. Giving or fabricating false evidence with intent to procure conviction of

offence punishable with imprisonment for life or imprisonment –
Whoever gives or fabricates false evidence intending thereby to cause, or
knowing it to be likely that he will thereby cause, any person to be convicted of
an offence which 2*[by the law for the time being in force in 3*[India]] is not
capital, but punishable with 4*[imprisonment for life], or imprisonment for a term
of seven years or upwards, shall be punished as a person convicted of that
offence would be liable to be punished.

Illustration

A gives false evidence before a Court of Justice, intending thereby to cause

Z to be convicted of a dacoity. The punishment of dacoity is 4*[imprisonment
for life], or rigorous imprisonment for a term which may extend to ten years,
with or without fine. A, therefore, is liable to 5*[imprisonment for life] or
imprisonment, with or without fine.

Using evidence known to be false:-

196. Using evidence known to be false – Whoever corruptly uses or attempts to use
as true or genuine evidence any evidence which he knows to be false or

347
 fabricated, shall be punished in the same manner as if he gave or fabricated
false evidence.
1. The words "or before a Military Court of Request" were omitted by the Cantonments
Act, 1889 (13 of 1889).
2. Subs. by the A.O. 1948, for "by the law of British India or England".
3. Subs. by Act 3 of 1951, s. 3 and Sch., for "the States".
4. Subs. by Act 26 of 1955, s. 117 and Sch., for "transportation for life".
5. Subs. by s. 117 and Sch., ibid., for "such transportation".

199. False statement made in declaration which is by law receivable as evidence

–
Whoever, in any declaration made or subscribed by him, which declaration any
Court of Justice, or any public servant or other person, is bound or authorized
by law to receive as evidence of any fact, makes any statement which is false,
and which he either knows or believes to be false or does not believe to be true,
touching any point material to the object for which the declaration is made or
used, shall be punished in the same manner as if he gave false evidence.

200. Using as true such declaration knowing it to be false –

Whoever corruptly uses or attempts to use as true any such declaration,
knowing the same to be false in any material point, shall be punished in the same
manner as if he gave false evidence.
Explanation - A declaration which is inadmissible merely upon the ground of
some informality, is a declaration within the meaning of sections 199 and 200.

348
Section 205.

False personation for purpose of act or proceeding in suit or prosecution

Whoever falsely personates another, and in such assumed character makes any
admission or statement, or confesses judgment, or causes any process to be issued or
becomes bail or security, or does any other act in any suit or criminal prosecution, shall
be punished with imprisonment of either description for a term which may extend to
three years or with fine, or with both.

Section 206. Fraudulent removal or concealment of property to prevent its seizure

as forfeited or in execution

Whoever fraudulently removes, conceals, transfers or delivers to any person any

property or any interest therein, intending thereby to prevent that property or interest
therein from being taken as a forfeiture or in satisfaction of a fine, under a sentence
which has been pronounced, or which he knows to be likely to be pronounced, by a
Court of Justice or other competent authority, or from being taken in execution of a
decree or order which has been made, or which he knows to be likely to be made by a
Court of Justice in a civil suit, shall be punished with imprisonment of either description
for a term which may extend to two years, or with fine, or with both.

Section 207. Fraudulent claim to property to prevent its seizure as forfeited or in

execution

Whoever fraudulently accepts, receives or claims any property or any interest therein,
knowing that he has no right or rightful claim to such property or interest, or practices
any deception touching any right to any property or any interest therein, intending
thereby to prevent that property or interest therein from being taken as a forfeiture or a
satisfaction of a fine, under a sentence which has been pronounced, or which he knows
to be likely to be pronounced by a Court of Justice or other competent authority, or from
being taken in execution of a decree or order which has been made or which knows to
be likely to be made by a Court of Justice in a civil suit, shall be punished with

349
imprisonment of either description for a term which may extend to two years, or with fine,
or with both.

Section 208. Fraudulently suffering decree for sum not due

Whoever fraudulently causes or suffer a decree or order to be passed against him at the
suit of any person for a sum not due or for a larger sum that is due to such person or for
any property or interest or property to which such person is not entitled, or fraudulently
causes or suffers a decree order to be executed against him after it has been satisfied,
or for anything in respect of which it has been satisfied, shall be punished with
imprisonment of either description for a term which may extend to two years, or with fine,
or with both.

Illustration

A institutes a suit against Z. Z knowing that A is likely to obtain a decree against him,
fraudulently suffers a judgment to pass against him for a larger amount at the suit of B,
who has no just claim against him, in order that B, either on his own account or for the
benefit of Z, may share in the proceeds of any sale of Z's property which may be made
under A's decree. Z has committed an office under this section

Section 209. Dishonestly making false claim in Court

Whoever fraudulently or dishonestly, or with intent to injure or any person, makes in a

Court of Justice any claim which he knows to be false, shall be punished with
imprisonment of either description for a term which may extend to two years, and shall
also be liable to fine.

Section 210. Fraudulently obtaining decree for sum not due

Whoever fraudulently obtains a decree or order against any person for a sum not due or
for a larger sum than is due, or for any property or interest in property to which he is not
entitled, or fraudulently causes a decree or order to be executed against any person

350
after it has been satisfied or for anything in respect of which it has been satisfied, or
fraudulently suffers or permits any such act to be done in his name, shall be punished
with imprisonment of either description for a term which may extend to two years, or with
fine, or with both.

Section 211. False charge of offence made with intent to injure

whoever, with intent to cause injury to any person, institutes or causes to be instituted
any criminal proceeding against that person, or falsely charges any person with having
committed an offence, knowing that there is no just or lawful ground for such proceeding
or charge against that person, shall be punished with imprisonment of either description
for a term which may extend to two years, or with fine, or with both;

And if such criminal proceeding be instituted on a false charge of an offence punishable

with death 1[imprisonment for life], or imprisonment for seven years or upwards, shall be
punishable with imprisonment of either description for a term which may extend to seven
years, and shall also be liable to fine..

000

351
 APPENDIX – VII

THE PROVISIONS RELATING TO INDIAN

EVIDENCE ACT – WHICH ARE FOUND IN
CHAPTER XIV AND XV

9. Facts necessary to explain or introduce relevant facts - Facts necessary to

explain or introduce a fact in issue or relevant fact, or which support or rebut an
inference suggested by a fact in issue or relevant fact, or which establish the identity of
any thing or person whose identity is relevant, or fix the time or place at which any fact in
issue or relevant fact happened, or which show the relation of parties by whom any such
fact was transacted, are relevant in so far as they are necessary for that purpose.

Illustrations

1. A is accused of a crime.

The fact that, soon after the commission of the crime, A absconded from his house, is
relevant under section 8, as a conduct subsequent to and affected by facts in issue.

The fact that, at the time when he left home he had sudden and urgent business at the
place to which he went is relevant, as tending to explain the fact that he left home
suddenly.

The details of the business on which he left are not relevant except in so far as they are
necessary to show that the business was sudden and urgent.

2. A is tried for a riot and is proved to have marched at the head of a mob. The cries of
the mob are relevant as explanatory of the nature of the transaction.

352
32. Case in which statement of relevant fact by person who is dead or cannot be
found, etc. is relevant - Statements, written or verbal, of relevant facts made by a
person who is dead, or who cannot be found, or who has become incapable of giving
evidence, or whose attendance cannot be procured without an amount of delay or
expense which, under the circumstances of the case, appears to the Court
unreasonable, are themselves relevant facts in the following cases -

(1) When it relates to cause of death - When the statement is made by a person as to
the cause of his death, or as to any of the circumstances of the transaction which
resulted in his death, in cases in which the cause of that person's death comes into
question.

Such statements are relevant whether the person who made them was or was not, at the
time when they were made, under expectation of death, and whatever may be the nature
of the proceeding in which the cause of his death comes into question.

Illustrations

(a) The question is, whether A was murdered by B; or

A dies of injuries received in a transaction in the course of which she was ravished.

The question is, whether she was ravished by B; or

The question is, whether A was killed by B under such circumstances that a suit would
lie against B by A's widow.

Statement made by A as to the cause of his or her death referring respectively to the
murder, the rape, and the actionable wrong under consideration, are relevant facts.

(a) The question is, as to the date of A's birth.

An entry in the dairy of a deceased surgeon, regularly kept in the course of business,
stating that, on a given day he attended A's mother and delivered her of a son, is a
relevant fact.

000

353
 APPENDIX – VIII

THE PROVISIONS RELATING TO

CONTEMPT OF COURTS ACT, 1971 –
WHICH ARE FOUND IN CHAPTER XVII

2. Definitions - In this Act, unless the context otherwise requires -

(a) "Contempt of court" means civil contempt or criminal contempt"

(b) "Civil contempt" means willful disobedience to any judgement, decree, direction,
order, writ or other process of a court or willful breach of an undertaking given to a court.

(c) "Criminal contempt" means the publication (whether by words, spoken or written, or
by signs, or by visible representation, or otherwise) of any matter or the doing of any
other act whatsoever which-

(d) Scandalizes or tends to scandalize, or lowers or tends to lower the authority of, any
court, or

(ii) Prejudices, or interferes or tends to interfere with the due course of any judicial
proceeding , or

(iii) Interferes or tends to interfere with, or obstructs or tends to obstruct, the

administration of justice in any other manner.

(a) "High Court" means the High Court for a State or a Union territory and includes the
court of the Judicial Commissioner in any Union territory.

COMMENTS

(i) There are three different sorts of contempt viz., scandalizing the court, abusing parties
who are concerned in causes here and prejudicing mankind against persons before the
case is bear; In re: St. James Evening Post, (1974) 2 ATK 469

354
(ii) Courts seek to punish acts or conduct calculated to interference with the
administration of justice; In re: P.C. Sen, AIR 1970 SC 1821.

(iii) Comment on pending case or abuse of a party may amount to contempt when the
case is tribal by a judge: Subhash Chand v.S.M. Aggarwal, 1984 Crl LJ 481 (De.).

(iv) Judges by reason of their office are precluded from entering into any controversy in
columns of the public press; The State v.Vikar Ahmed, AIR 1954 Hyd 175.

(v) There is no special principle attached to the Press to comment, criticize or investigate
the facts of any case of the prejudice of the trial of thecase; Sukhdev Singh v.Teja Singh,
AIR 1954 SC 186.

(vi) No editor has a right to assume the role of investigator to try to prejudice the court
against any person; The District Magistrate v.M.A. Hamid Ali gardish, AIR 1940 Oudh
137.

(vii) It is time to stem institutionalized procrastination, K.V.Venkatesh v. Taluka Executive

Magistrate, AIR 1990 Kant 86.

(viii) "The law relating to contempt of court is well settled. Any act done or writing
published which is calculated to bring a court or a Judge into contempt, or to lower his
authority, or to interfere with the due course of justice or the lawful process of the court,
is a contempt of court; Q.R. v. Gray, 1900 (2) QBD 36 (40)

(ix) contempt by speech or writing may be by scandalizing the court itself, or by abusing
parties to actions, or by prejudicing mankind in favour of or against a party before the
cause is heard. It is incumbent upon courts of justice to preserve their proceedings from
being misrepresented, for prejudicing the mind of the people against persons concerned
as parties in causes before the cause is finally heard has pernicious consequences.
Speech or writings misrepresenting the proceedings of the court of prejudicing the public
for or against a party or involving reflections on parties to a proceeding amount to
contempt. To make a speech tending to influence the result of a pending trial, whether
civil or criminal is a grave contempt. Comments on pending proceedings, if emanating
from the parties or their lawyers, are generally a more serious contempt than those

355
coming from independent sources; State of Haryana v. Ch. Bhajanlal, AIR 1993 SC
1348.

(x) In contempt proceedings there are essentially two parties - The court and
contemporary; Shakuntala Sahadevram Tiwari v. Hemachand M. Singhania, (1990) 3
Bom CR 82 (Bom).

(xi) The law of contempt must be strictly interpreted an complied with before any person
can be committed for contempt; Roshan S. Boyce v.B.R. Cotton Mills Ltd., AIR 1990 SC
1881.

(xii) Any willful disobedience to the orders of the court to do or abstain from doing any
act or breach of any undertaking given to the court is prima-facie Civil Contempt; Vidya
Sagar v.IIIrd Additional District Judge, Dehradun, 1991 All CJ 586 (588); See also State
of Assam v.V.K.Vishnoi, 1993 (23) ATC 581 (587-588); State of Orissa V.Bijaya
Mohanty, (1993) 75 CLT 820 (830).

(xiii) Non caring of the warrant issued by the Criminal Court amounts to Criminal
Contempt; E.Venkaiah v. Government of Andhar Pradesh, 1992 (3) ALT 193 (199).

10. Power of High Court to punish contempt's of subordinate courts - Every High
Court shall have and exercise the same jurisdiction, powers and authority, in accordance
with the same procedure and practice, in respect of contempt's of courts subordinate to it
and it has and exercise in respect of contempt's of itself.

Provided that no High Court shall take cognizance of a contempt alleged to have been
committed in respect of a court subordinate to it where such contempt is an offence
punishable under the Indian Penal Code (45 of 1860).

COMMENTS

(i) The phrase "Courts subordinate to it" used in section 10 is wide enough to include all
courts which are judicially subordinate to the High Court even though administrative
control over them under Article 235 of the Constitution does not vest in the High Court;

356
S.K. Sarkar, Member, Board of Revenue, U.P. Lucknow v.Vinay Chandra Mishra, 1981
Cr LJ 283 (286).

(ii) The power of committal for contempt must be wielded with the greatest reluctance
and the greatest anxiety and only with the object of seeing that the dignity and authority
of the Court are not imposed; E.Chandra v.Member Secretary, MMDA., (1990) 1 MLJR
537.

(iii) If the act is punishable by the Penal Code as contempt of Court then that act cannot
form the subject o contempt proceedings by the High Court; The Emperor V.J.P.
Swadhin, Air 1938 All 358.

(iv) The High Court cannot take cognizance of "contempt" which is punishable under the
Indian Penal Code; N.K. Gupta V.Umraomal Agarwalla, AIR 1951 Cal 489.

12. Punishment for contempt of court - (1) Save as otherwise expressly provided in
this Act or in any other law, a contempt of court may be punished with simple
imprisonment for a term which may extend to six months, or with fine which may extend
to two thousand rupees, or with both.

Provided that the accused may be discharged or the punishment awarded may be
remitted on apology being made to the satisfaction of the court.

Explanation - An apology shall not be rejected merely on the ground that it is qualified or
conditional if the accused makes it bona fide.

(2) Notwithstanding anything contained in any law for the time being in force, no court
shall impose a sentence in excess of that specified in sub section for any contempt
either in respect of itself or of a court subordinate to it.

(3) Notwithstanding anything contained in this section, where a person is found guilty of
a civil contempt, the court, if it considers that a fine will not meet the ends of justice and
that a sentence of imprisonment is necessary shall, instead of sentencing him to simple

357
imprisonment, direct that the he be detained in a civil prison for such period not
exceeding six months as it may think fit.

(4) Where the person found guilty of contempt of court in respect of any undertaking
given to a court is a company, every person who, at the time the contempt was
committed, was in charge of, and was responsible to, the company for the conduct of
business of the company, as well as the company, shall be deemed to be guilty of the
contempt and the punishment may be enforced, with the leave of the court, by the
detention in civil prison of each such person.

Provided that nothing contained in this sub section shall render any such person liable to
such punishment if he proves that the contempt was committed without his knowledge or
that he exercised all due diligence to prevent its commission.

(5) Notwithstanding anything contained in sub section (4) where the contempt of court
referred to therein has been committed by a company and it is provided that the
contempt has been committed with the consent or connivance of, or is attributable to any
neglect on the part of, any director, manger, secretary or other officer of the company,
such director, manager , secretary or other officer shall also be deemed to be guilty of
the be contempt and the punishment may be enforced, with the leave of the court, by the
detention in civil prison of such director, manager, secretary or other officer.

Explanation - For the purpose of sub sections (4) and (5)-

(a) "Company " means any body corporate and includes a firm or other association of
individuals, and

(b) "Director" in relation to a firm, means a partner in the firm.

COMMENTS

Breach of an injunction, or breach of an undertaking given to a court by a person in a

civil proceeding amounts to contempt; Noorali Babul Thanewala v.K.M.M. Shetty, AIR
1990 Sc 564.

(i) Committing the contemner to prison is always discretionary with the Court;
Shakuntala Sahadevram Tiwari v.Hemchand M.Singhania, (1990) 3 Bom CR 82 (Bom).

358
(ii) The power to fine and imprison for contempt is a necessary incident and attribute of a
Court; Watson v.Williams, (33) 36 Mis 341.

(iii) An unreserved apology, in less serious cases, has the asset of taking the stringent of
contempt; Court on behalf of the State of Punjab v.Raddha Krishan Khanna, AIR 1961
Punj 113.

(iv) The contempt power should be kept sheathed; Union of India v.S.C. Sharma, (1980)
2 SCC 144.

(v) Apology is an act of contrition. Apology must not be shorn of penitence. Tendering of
apology cannot be a panacea in every case of contempt. No apology could undo gross
contempt and serious cases of contempt; State of Orissa v.R.N. Patra, (1975) 41 Cut LT
329.

(vi) The court can, even when accepts the apology, commit an offender to prison or
otherwise punish him; Rupert J.Bamabas v. Mrs. N.Bharani, 1990 LW (Crl) 27 (Mad).

(vii) A haulting, hesitating and vacillating apology deserves to be rejected; State of Uttar
Pradesh v. Krishna Madho, AIR 1952 All 86.

(viii) The court may or may not accept an apology goes to sentence and cannot,
therefore, be accepted without a finding that contempt has been committed. However,
apology, though not a weapon of defence forged always to purge the guilty, should be
tendered out the earliest possible stage, unreservedly and unconditionally and it must be
indicative of remorse and contrition as well as free, full, frank and manly confession of a
wrong done; In re: Hirenn Bose, AIR 1969 Cal 1.

15. Cognizance of criminal contempt in other cases- (1) In the case of a criminal
Contempt, other than a contempt referred to in section 14, the Supreme Court or the
High Court may take action on its own motion or on a motion made by -

(a) The Advocate –General, or

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(b) Any other person, with the consent in writing of the Advocate –General, (Note:- Ins.
by Act 45 of 1976, sec.2)

(c) [(Note:- Ins. by Act 45 of 1976, sec.2)] In relation to the High Court for the Union
territory of Delhi, such Law Officer as the Central Government may, by notification in the
Official Gazette, specify in this behalf, or any other persons, with the consent in writing of
such Law Officer.

(2) In the case of any criminal contempt of a subordinate court, the High Court may take
action on a reference made to it by the subordinate court or on a motion made by the
Advocate General or, in relation to a Union territory, by such Law Officer as the Central
Government may, by notification in the Official Gazette, specify in this behalf.

(3) Every motion or reference made under this section shall specify the contempt of
which the person charge is alleged to be guilty.

Explanation- In this section, the expression "Advocate-General" means-

(a) In relation to the Supreme Court, the Attorney or the Solicitor –General

(b) In relation to the High Court, the Advocate-General of the State or any of the States
for which the High Court has been established.

(c) In relation to the court of a Judicial Commissioner, such Law Officer as the Central
Government may, by notification in the Official Gazette, specify in this behalf.

COMMENTS

(i) The Court can take action -

(a) On motion by the Advocate-General himself; or

(b) On motion by anyone with the consent of the Advocate-General; or

(c) On report by a subordinate court, in cases not covered by section 14 of the Act.

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(ii) Procedure of making a reference cannot apply in a case when the Presiding Officer
of a subordinate court himself is guilty of contempt of court; Berely v.Xavier, 1988 Cr LJ
90.

(iii) It is always open the High Court to take action suo motu in respect of a subordinate
court; State of Orissa v.R.N.Patra, 1976 Cr LJ 440 (Ori); see also A.R. Rao, 1981 Cr LJ
1322.

(iv) Absolute discretion is rested in the Advocate-General in the matter of according

consent; N. Venkataramanappa v.D.K. Naikar, AIR 1975 Kant 57.

(v) Nobody has a right to compel the subordinate court to make a reference to the High
Court; Jomon v. The State of Kerala, (1987) IJ Reports 273 (Kerala).

(vi) A negative fact cannot be proved; V.K. Kanade v.Mandho Godkari, (1990) I Mah LR
544 (Bom).

(vii) Contemner has no right to produce defence to establish the truth of his allegations;
In re: K.L. Gauba, AIR 1942 Lah 105; see also In re: Ram Mohanlal, AIR 1935 All 38.

16. Contempt by judge, magistrate or other person acting judicially - (1) Subject to
the provisions of any law for the time being in force, a judge, magistrate or other persons
act in judicially shall also be liable for contempt of his own court or of any other court in
the same manner as any other individual is liable and the provisions of this Act, so far as
may be, apply accordingly.

(2) Notwithstanding in this section shall apply to any observations or remarks made by a
judge, magistrate or other person act in judicially, regarding a subordinate court in an
appeal or revision pending before such judge, magistrate or other person against the
order or judgement of the subordinate court.

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COMMENTS

(i) Only a Judge of a subordinate court can be said to have committed contempt of his
own court i.e. the court in which such judge is presiding; Harish Chandra v.S. Ali Ahmed,
1987 Cr LJ 320 (Pat).

(ii) A judge can foul judicial administration by misdemeanors while engaged in the
exercise of the functions of a Judge; Baradakanta v. The Registrar, Orissa High Court,
AIR 1974 SC 710.

(iii) The Magistrates should be conscious of their heavy responsibilities and should not
act in a manner prejudicial to the litigants; B.N. Choudhary v.S.M. Singh, 1967 Cr LJ
1141 (Pat).

(iv) When the President Officer of a subordinate Court is guilty of contempt of Court,
procedure of making a reference cannot apply under section 15 of the Act; Berely
v.Xaviery, 1988 Cr LJ 90.

20. Limitation for actions for contempt - No court shall initiate any proceedings if
contempt, either on its own motion or otherwise, after the expiry of a period of one year
from the date on which the contempt is alleged to have been committed.

COMMENTS

(i) Initiation of any proceedings for contempt is barred after the expiry of a period of one
year from the date on which the contempt is alleged to have been committed; V.M.
Kanade v.Madhao Gadkari, (1990) 1 Mah LR 544 (Bom).

(ii) No intervening event or order stops the running of time specified in this section;
Golcha Avertising Agency v. The State of Maharashtra, (1990) 2 Bom CR 262 (Bom).

(iii) The expression "Court" denotes a High Court or the Supreme Court; The State of
Bihar v.Ambika Roy, 1991 Cr LJ 82 (Pat).

(iv) The provisions of the Limitation Act, 1963 do not apply; Krishnalal Chhoteylal, (1987)
13 ALR 44.

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(v) Delay in initiating contempt proceedings cannot be condoned; T.M.A.
Abdul Hamed v.S.Radhakrishnan, 1989 LW (Crl) 237.

000

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