CRIMINAL PROCEDURE CODE, 1973:

ARREST

IMPORTANT SECTIONS:

INVESTIGATION:

What are the values of several of statements or reports prepared during the course of Investigation?

JURISDICTION:

COGNIZANCE:

What are the various kinds of Technical Bars for taking cognizance of offence?

Ans: They can be classified into two: Time limitations and other. The others can be either obtaining sanction or report by victim. The time limitation for taking cognizance is dealt under S.468 Cr.P.C

Note: on Commencement of period of limitation: 

1. On the date of offence or
2. First day of offence comes to know to the knowledge of person or police whichever is earlier.                                 3. When identity comes to the knowledge of person or police whichever is earlier
3. In section 472, the first day is excluded for continuing offences from every continuing moment.

LIMITATIONS TO TAKE COGNIZANCE:

CHARGE

What is the Procedure for Trial of Summons-cases by Magistrate?

Ans: Trial of Summons-cases: When in a summons-case the accused appears or is brought before the Magistrate, the particulars of the offence of which he is accused shall be stated to him, and he shall be asked whether he pleads guilty or has any defence to make, but it shall not be necessary to frame a formal charge. If the accused pleads guilty, the Magistrate shall record the plea as nearly as possible in the words used by the accused and may, in his discretion, convict him thereon.

If the summons has been issued on complaint, and on the day appointed for the appearance of the accused, or any day subsequent, thereto to which the hearing may be adjourned, the complainant does not appear, the Magistrate shall acquit the accused except some reasons. This rule applies to cases where the non-appearance of the complainant is due to his death.

In any summons-case instituted otherwise than upon complaint, a Magistrate of the first class may for reasons to be recorded by him, stop the proceedings at any stage without pronouncing any judgment and where such stoppage of proceedings is made after the evidence of the principal witnesses has been recorded, pronounce a judgment of acquittal, and in any other case, release the accused, and such release shall have the effect of discharge.

S.256 Cr.P.C: If the complaint upon receipt of summons is called absent on the date fixed for the accused or any other matter for which matter is adjourned, the court can acquit the accused. This rule applies even for the non-appearance of the complaint due to his death.

S.249: Absence of complaint: If the complaint in a complaint case is called absent or didn’t turn before framing the charge, he can discharge the accused, provided offence alleged is a compoundable and non-cognizable case.  The two situations must be satisfied: compoundable and non-cognizable case.

The magistrate as S.258 Cr.P.C can stop the proceedings at any stage in the following circumstances: a) It must be a summons case b) It must be a case instituted otherwise than on complaint i.e., On a police report.

If such stoppage of proceedings is after the examination any of the witness it is called acquittal. If such stoppage is without any recording of any evidence it amounts to discharge.

Difference between acquittal and Discharge:

If the accused is set at liberty prior to recording of evidence, it is known as Discharge.

If the accused is set at liberty after recording of evidence, it is known as acquittal.

If the matter is ended in acquittal, he can’t be tried again. If accused discharged he can be tried by same court or its superior court.

Difference between 249 and 256: S.256 is applicable to both summons case and warrant cases and where as S.256 is applicable to summons cases only.

S.249 is applicable to cases whether it is either compoundable or non-cognizable and whereas S.256 is applicable in case of summons case.

It is irrelevant under S.256, whether offence is compoundable or non-compoundable.

S.257: A complaint in a complaint case can withdraw the case by showing sufficient grounds. Such withdrawal can be all or any of the accused in that case.  Upon such permission given by the court accused gets acquitted.

Difference between acquittal and Conviction: Conviction means the proof of guilt. Sentence means quantum of punishment awarded upon conviction.  It is mandatory to hear the accused on sentence in case of session’s case (235) and warrant cases (248). It is desirable in case of Summons case.

Summary Trials:  In summary trial unlike other trials there is no elaborated procedure to try the accused. It is a simple, quick and inexpensive procedure. This mode of trial can be adopted only by certain class Magistrates or Magistrates authorized by High court in following cases only: i) offences which are less than two years. ii) In following cases even if the punishment is more than two years but worth of property involved is only Rs.200/- court can conduct summary trial. They are: S.379, 380, 381, 411, 414, 454, 456, 504, 506 IPC, S20 of Cattle Trespass Act.

Summary Procedure: Basically in all summary trials the summons procedure is framed i.,e no requirement of framing charge, recording of substance of evidence. However, if the accused does not plead guilty, the Magistrate shall record the substance of the evidence and a judgment containing a brief statement of the reasons for the finding. But in no case Magistrate can’t inflict punishment for a period more than three months upon finding the accused is guilty offence. Generally, in every summary trial record following particulars must be mentioned, namely:- (a) the serial number of the case: (b) the date of the commission of the offence; (c) the date of the report or complaint; (d) the name of the complainant (if any); (e) the name, parentage and residence of the accused; (f) the offence complained of and the offence (if any) proved, and in cases coming under clause (ii), clause (iii) or clause (iv) of sub-section (1) of section 260, the value of the property in respect of which the offence has been committed; (g) the plea of the accused and his examination (if any); (h) the finding; (i) the sentence or other final order; (j) the date on which proceedings terminated.

Another impressive feature of this trial is that accused need not come to court he can plead guilty through post or pleader or by person upon receipt of summons and pay fine as mentioned in the summons.  During the trial of case if the Magistrate is opinion that it undesirable to try the case under summary procedure he can convert it into any other manner as provided by code.

Write a note on Return of Property for Interim Custody?

Ans: Return of Property for Interim Custody: S.451 & 457 of Cr.P.C are the relevant provisions which deal with return of property for interim custody. S.451Cr.P.C deals with order for custody and disposal of property pending trial in certain cases. S.457 Cr.P.C of speaks about procedure to be followed by police upon seizure of property. Another distinction between both these sections is like this:

Under 457 1) Property has been seized by police officer. 2) Seizure is reported to the Magistrate. 3) The property so seized is not produced before the court during inquiry or trial and whereas under S.451 there is no deposit of property before court.

A plain reading of these two sections indicates that powers u/s.451, 457 Cr.P.C shall be exercised expeditiously and judiciously. If the property is not returned to its original owner the value of the property gets diminished and it’s a clog on property. Therefore, it is held that if there is a proper panchanama before handing over the property to its original owner towards interim custody, it can be used in evidence instead of its production of property during the trial. One important judgment pertaining to this issue which is delivered by Apex court in Sunder bha Ambalal Desi Vs. Gujarat 2003(1) ALD (CRL) 8 SC. Following are guide lines laid down: (a) Preparation of detailed panchanama of articles seized (b) taking photographs of such articles and a bond that such articles would be produced at the time of trial and (c) Taking proper security.

S.452 gives jurisdiction to court to order for disposal only at the conclusion of trial.

Write a note on Maintenance proceedings Under Cr.P.C?

Ans: Sections 125 to 128 of Cr.P.C.1973 operates against persons who neglect or refuse to maintain their dependent wives, children and parent. It applies person of all religions and have no relationship with the personal laws of the parties except divorced Muslim women. It is an enforcement of civil remedy by way of criminal machinery.

Conditions:   If the dependent is unable to maintain herself or himself, JMFC upon proof of such neglect or refusal pass an order for payment of maintenance. Dependent means wife, parent or child.

 Salient features of s.125 Cr.P.C:-

1. JMFC has power to pass order under this Section. JMFC order is not final for more maintenance parties can agitate before civil court.
2. Marriage must be valid one. 3. Children includes both legitimate and illegitimate.
3. Presumption of marriage can be raised in favour of wife u/s 50 of IEA.
4. Wife may be minor or major such allowance shall be payable from the date of the order or if so ordered from the date of application for maintenance.
5. If any person ordered, fails without sufficient cause to comply with the order any such Magistrate, may issue a warrant for levying the amount due in the manner provided for levying fines and may sentence such person accordingly u/s 125(3).
6. Time limitation is one year.

    8.In section 125(4) disqualifications from entitling maintenance are provided, they are as follows: (a) if she is living in adultery (b) without sufficient reason refuses to live with him or (c) living separately under mutual consent between husband and wife (d) when she is remarried.

9. Territorial jurisdiction for filing application U/S 125Cr.P.C proceedings may be taken against any person in any district: (a) where he is or (b) where he or his wife resides or (c) where he resided with his wife or as the case may be, the mother of the illegitimate child.
10. Evidence must be recorded in presence of respondent or his advocate. It must be recorded as summons case.
11. When there is wilful avoiding of summons, court can declare such person as exparty and proceed. 14. Exparty order can be seta side only on showing good ground within 90 days.
12. Court can order for costs also. 13.Court can issue warrant of imprisonment on failure to pay maintenance.
13. The person claiming maintenance must be unable to maintain him or herself.
14. Enquiry U/S 125-128 is not a trial. It can’t be considered as acquittal or conviction.
15. If marriage is void in view of S.5 and 11 of Hindu Marriage Act, 1955 is not entitle to relief U/S125.

21.Kuldeep Kour v/s Surinder singh: Sending defaulting husband to jail is only a mode or method of recovery and not a substitute for recovery of the maintenance allowance. Husband is not absolved from his liability to maintenance, the amount is still recoverable.

Inherent powers: The power of court to do anything to meet the ends of justice in the absence of express provision of law is called inherent powers. This power can be expressed only the H.Court under 482 Cr.P.C.

GENERAL PROVISIONS OF INQUIRE AND TRIALS:                        

Write a note on issues relating to Bail?

Misc:

In summons case substance of evidence can be recorded.

In Warrant cases as the examination of each witness proceeds, be taken down in writing either by the Magistrate himself or by his dictation in open Court. The same is the case with the trial before Court of Session.

S.280 Judge can record demeanour of witness (Non-Verbal Communication)

281. Record of examination of accused.
282. No formal proof of certain documents:- If the genuineness of document is not disputed it can be read in evidence without meeting S.67 IEA, provided that the Court may, in its discretion, require such signature to be proved.

In Criminal trial evidence shall be recorded in court in the presence of accused. It shall not be on affidavit except under S.138 NIAct and S.296 Cr.P.C

S.296. Evidence of formal character on affidavit.

298 talks about how to prove previous conviction or acquittal: It can be proved in the following ways: (a)            Certified copy of the court, under whose custody he had conviction or acquittal held. (b) in case of a conviction, either by a certificate signed by the officer in charge of the Jail in which the punishment is undergone.

299. Record of evidence in absence of accused:- (1) If it is proved that an accused person has absconded, and that there is no immediate prospect of arresting him, the Court competent to try or commit for trial, such person for the offence complained of, may, in his absence, examine the witnesses (if any) produced on behalf of the prosecution, and record their depositions and any such deposition may, on the arrest of such person, be given in evidence against him on the inquiry into, or trial for, the offence with which he is charged, if the deponent is dead or incapable of giving evidence or cannot be found or his presence cannot be procured without an amount of delay, expense or inconvenience which, under the circumstances of the case, would be unreasonable.

(2) If it appears that an offence punishable with death or imprisonment for life has been committed by some person or persons unknown, the High Court or the Sessions Judge may direct that any Magistrate of the first class shall hold an inquiry and examine any witnesses who can give evidence concerning the offence and any depositions so taken may be given in evidence against any person who is subsequently accused of the offence, if the deponent is dead or incapable of giving evidence or beyond the limits of India.

Write a note on Plea Bargaining?

Ans:Plea Bargaining- means concession given to convict with respect to sentence upon admission of guilt. Section 265-A TO 265-L have been added in the CR.P.C so as to apply the plea bargaining. Plea-bargaining is the process whereby the accused and the prosecutor in a criminal case work out a mutually satisfactory disposition of the case subject to the court approval. Therefore, it can be said that plea-bargaining refers to pre-trial negotiations between the defendant through his/her counsel and the prosecution during which the accused agrees to plead guilty in exchange for lesser punishment.

The salient features of plea-bargaining: 

1) It is applicable only in respect of those offences for which punishment of imprisonment is up to a period of 7 years. 

2) It does not apply where such offence affects the socio- economic condition of the country or has been committed against a woman or a child below the age of 14 years.  

3) The application should be filed by the accused voluntarily.

4) An accused must file an application for Plea-bargaining in the court in which such offence is pending for trial. 

5) The accused and prosecution both are given time to work out a mutually satisfactory disposition of the case, which may include giving compensation to the victim by the accused and other legal expenses incurred during pendency of the case.

6) Where a satisfactory disposition of the case has been worked out, the Court shall dispose of the case by sentencing the accused to one-fourth of the punishment provided or extendable, as the case may be for such offence.

7) The statement or facts stated by an accused in an application for plea-bargaining shall not be used for any other purpose other than for plea-bargaining.

8) The judgment delivered by the Court in the case of plea-bargaining shall be final and no appeal shall lie in any court against such judgment.

9) Three essentials work at the time of filing an application of plea-bargaining:

      a) Accused‘s voluntariness to plead guilty.        b) The statements or facts stated by an accused in the application for plea-bargaining should not be used for any other purpose except plea-bargaining.                                                                 c) It is a contractual agreement between the prosecution and the defendant regarding the disposition of criminal charge. However, it is not enforceable until a judge approves it.

CRIMINAL APPEALS:

1. I. At the outset, it apt to remind Certain points:

Hierarchy of courts: JMSC—JMFC—-Asst.Sessions/Sessions Court- H.C- S.Court.

Criminal Court has no inherent powers except for H.C u/S.482 Cr.P.C.

In Chapter.29 Of Cr.P.C, S.372 to 394 talks about criminal appeals.

1. The basic rule is there is no appeal unless provided. In following cases there no appeals:
2. H.C imposes imprisonment up to six months or fine Rs.1000/-.
3. Court of session imposes imprisonment up to three months or fine Rs.200/-.
4. MFC or JMSC imposes imprisonment fine of Rs.100/-.
5. Conviction is on plea of guilty except on legality of sentence (other than HC)

III.Procedure to appeal:In the event of acquittal or inadequate sentence  from any court, appeal lies to immediate Superior court. Appeal can be filed by victim also. It must be filed within ninety days(114LA) by state (is prosecuting agency) and thirty days by private complaint.  However, revision can be filed u/s.397 (90days). In the event of Conviction from any court, appeal lies to immediate superior court as matter of right. It must be filed within 30 days(A.115LA). Ex; S.498A IPC conviction from JMFC lies to Court of Session as a matter of right. If the appeal is to HC from any court of session sixty days (Art.115LA)

1. Bail issues:(S.389): It is 2 kinds i.e., Bail by sentencing court and appellate court.

Bail by sentencing court: It can grant if the convict is on appeal and he is sentenced to imprisonment for a term not exceeding three years or offence is a bailable one, and he is on bail. It is for limited period i.e., till the appeal is filed.

Appellate court: It can exercise the power to grant bail only if (i) the person asking for release on bail is convicted person ii) he is in confinement iii) his appeal against the conviction is pending. The appellate court in exercising its powers under S.389(1) can suspend the execution of sentence and conviction also. Under this section, it is irrelevant whether the offence involved is baialble or non-bailable.

1. Mode and manner of disposing appeal: Memo of appeal must be annexed with copy of judgment. It is duty on part of court to call of records and hear both parties before proceed to dispose the appeal.
2. Powers of appellate court: Grant bail, arrest the accused, receive additional evidence or direct the lower court to record the evidence, re-appreciate the evidence.

Options available to appellate court:

      a) Dismiss the appeal: If the court considers that there is no sufficient ground for interfering, dismiss the appeal.

     b) In case of Appeal from conviction: Court can reverse the finding and sentence and acquit or discharge the accused or order him to be retired by a competent court.

     i) the appellate court may alter the finding and maintain the sentence or

     ii) the appellate court may with or without altering the finding, alter the nature or extent or the extent or the nature and extent of the sentence so as to enhance or reduce the same(S.386(c))

   c) In case of appeal from acquittal: The Court may reverse such order and direct that further inquiry be made or that the accused be retried or committed for trial as the case may be, or find him guilty and pass sentence on him according to law(386(a)).

As to the exercise of power of the appellate court, the S.C in Sanwat Singh v State of Rajasthan has laid down three principles.

First, the appellate court has full powers to review the evidence upon which the order of acquittal is founded. Second, the principles laid down by the judicial committee of the privy council in Sheo Swarup V King of Emperor AIR 1934 PC 227(See below) afford a correct guide for the appellate court’s approach to case in disposing of such an appeal. Thirdly, the appellate court in coming to its conclusion should not only consider every matter on record having a bearing on the questions of fact and the reasons given by court below in support of its order of acquittal, but it should also express those reason to hold the acquittal was justified. The appellate court should deal with each one of the reason which promoted the trial court to record the acquittal and should point out how, if at all, those reasons were wrong or incorrect.

   d) In an appeal for enhancement of sentence.-    i) Court can reverse the finding and acquit or discharge the accused or order him to be retired by a competent court.

     ii) Court can alter the finding and maintain the sentence or

     iii) Court can with or without altering the finding, alter the nature or extent of the sentence so as to enhance or reduce the same(S.386(c))

      e) In an appeal from any other order.- The appellate court may in such a case alter or reverse such order (S.386(d))

      f) Consequential or incidental orders.- The appellate court may make any amendment or any consequential or incidental order that may be just or proper (S.386(e)).

      g) No dismissal of appeal for default or on the appeal becoming infructuous.- No provision in code dealing with this issue. Once, the court decides to dismiss an appeal summarily; it should dispose it of giving reasons for its conclusion except u/s. S.394.

Misc: Only reference and revision is there in Criminal law but not review. On death of accused appeal abates, however, interested party can continue it by impleading (S.394).

Revisional powers of HC(S.407) and sessions court(S.397) are concurrent.

Revision: To see that lowers working within the framework of law.  That subordinate criminal court does not exceed their jurisdiction, or abuse their powers vested in them by the code. They can be  exercised Suo- motu, or on the petition of any aggrieved party or even on the application of any other person.

Revisioanl powers are exercised only in cases where there is a glaring defect in the procedure or there is manifest error on point of law and consequently there has been a flagrant miscarriage of justice.

There is no abatement on the death of the petitioner.

S.397 to 405 deals with the powers of revision conferred on higher courts and the procedure to regulate these powers. These powers are very wide and discretionary in nature. However, there are certain limitations on these powers:

       a) IF there is appeal but no appeal is brought, ordinarily no proceedings by way of revision shall be entertained

       b) revisional powers shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry or trial.

       c) the revisional court is not authorized to convert a finding of acquittal into one of conviction

      d) A person is allowed to file only one application for revision either to the Court of Session or high court.

S.397 says the HC or Court of Session is empowered to call for and examine the record of any proceedings before any inferior court and satisfy itself as to the correctness, legality or propriety of nay order passed by the inferior court. If any defect, irregularity or illegality justifying, corrective action is found on the examination of the record, the subsequent sections namely 398 -401 empower the superior courts to pass suitable orders to remove the miscarriage of justice.   During the period of calling for records, the court can 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.

The revisional powers shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry or trial.

S.404: When the record of any trial held by a metropolitan magistrate is called for by the high court or court of session u/s.397, the magistrate may submit with te record a statement setting forth the grounds of his decisions or order and any facts which he thinks material to the issue; and the court shall consider such statements before overulign or settinga side the said decision or order.

S.398: Power to order inquiry: On examining  any record u/s.397 or otherwise, the high court or court of session may direct the CJM or any magistrate to conduct inquiry into any complaint which has been dismissed u/s.203 or 204(4) or into the case of nay person accused of an offence who has been discharged:

Provided that no court shall make any direction under this section for inquiry into that 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.

Thus powers exercisable under this section are limited to proceedings pending or concluded at the pre-stage charge.                                  .

 S.399: Sessions judge power of revision: It says the powers exercisable by session judge w.r.t to revision are same as that of high court u/s.401(1).  S.400 says the Additional session judge can exercise all the powers which a session judge can exercise.

S.401 sets out powers of revision and the limitations on such powers of the high court. 

The revisional powers are intended to be used by the high court to decide all questions as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed by any inferior criminal court and even as to the regularity of any proceedings of such inferior court.

The object of conferring revisional power on the high court is to clothe the highest court in a state with a jurisdiction of general supervision and superintendence in order to correct grave failure or miscarriage of justice arising from erroneous or defective orders.

The error or defect may arise from misconception of law, irregularity of procedure, misreading of evidence, misapprehension or misconception about law or facts, mere perversity or even undue hardship or leniency.

S.401(1) confers on the HC all the powers of appellate court as mentioned in Ss386, 389, 390 and 391 and it also empowers the high court to direct tender of pardon to the accused person as contemplated by S.307. apart from these powers the code has given additional powers in espect of specific cases falling u/s.106(4), 356(4), 357(4), 359(2), 360(4) etc.

Any order passed in any proceedings under the code, except when it is specifically barred such as an interlocutory order, is revisable by the high court u/s.401.

S.403 is an exception to rule audi alterm partem. The section 401(2) is imperative and can be considered as an exception to S.403.

S.401(2) says court while passing order under S.401 shall hear parties to the case.

S.401(5) says if the party under the erroneous belief that there is no appeal prefers revision court can convert it into an appeal.