Criminal

Code of Criminal Procedure, 1898

5 of 1898
An Act to consolidate and amend the law relating to Criminal Procedure Whereas it is expedient to consolidate and amend the law relating to Criminal Procedure; It is hereby enacted as follows
PART 1: PRELIMINARY:
CHAPTER 1:
SECTION 1: Short title, commencement:
(1) This Act may by called the Code of Criminal Procedure, 1898; and it shall come into force on the first day of July, 1898.
Extent.-(2) It extends to [the whole of India except the State of Jammu and Kashmir and Manipur] ; but, in the absence of any specific provision to the contrary, nothing herein contained shall affect any special or local law now in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force, or shall apply to- (a) the Commissioners of Police in the towns of Calcutta, Madras and Bombay, or the police in the towns of Calcutta and Bombay; (b) heads of villages in [the State of Madras as it existed immediately before the 1st November, 1956] , or (c) village police-officers in [the State of Bombay as it existed immediately before the 1st November, 1960] : Provided that the State Government may, if il thinks fit, * * *4 by notification in the Official Gazette, extend any of the provisions of this Code, with any necessary modifications, to such excepted persons. State Amendments ANDHRA PRADESH.-For clause (b) in sub-section (2) substitute the following “(b) heads of villages in the States of Andhra and Madras as those States existed immediately before the 1st November, 1956; or” (Andh Pr. A. L. 0. 1957).
MAHARASHTHA.-(1) In its application to the State of Maharashtra in clause (a) of sub section (2) of Section I of the Code, (i) for the words “Towns of Calcutta, Madras and Bombay” the words “Towns of Calcutta and Madras” have been substituted, (ii) for the words “Towns of Calcutta and Bombay” the words “Town of Calcutta” have been substituted. (Bombay Police Act 22 of 1951). (2) In its application to the State of Maharashtra in clause (c)of sub-section (2), for the words ‘ State of Bombay’ substitute the words ‘State of Maharashtra’. [Sea Central Acts on State and Concurrent Subjects (Maha. Adaptation) (Amendment) Order, 1961, (w.e.f. 1-5-1960)].
SECTION 2:
[Repeal of enactments, notifications, etc., under repealed Acts. Pending cases.] Rep. by the Repealing and Amending Act, 1914 (10 of 1914), Section 3 and Schedule II.
SECTION 3: References to Code of Criminal Procedure and other repealed enactments:
(1) In every enactment passed before this Code comes into force in -which reference is made to, or to any Chapter or section of the (Code of Criminal Procedure, 1973 or (Code of Criminal Procedure, 1973), or (Code of Criminal Procedure, 1973), or to any other enactment hereby repealed, such reference shall, so far as may be practicable, be taken to be made to this Code or to its corresponding Chapter or section.
Expressions in former Acts.-(2) In every enactment passed before this Code comes into force the expressions “Officer exercising (or ‘having’) the powers (or ‘the full powers’) of a Magistrate,” “Subordinate Magistrate, first class,” and “Subordinate Magistrate, second class,” shall respectivel be deemed to mean “Magistrate of e first class,” “Magistrate of the second” class” and “Magistrate of the third class”, the expression “Magistrate of a division of a district” shall be deemed to mean “Sub-divisional Magistrate”, the expression “Magistrate of the district” shall be deemed to mean “District Magistrate”, the expression “Magistrate of Police” shall be deemed to mean “Presidency Magistrate”, and the expression “Joint Sessions Judge” shall mean “Additional Sessions Judge”.
SECTION 4: Definitions:
State Amendments Andhra Pradesh Added Territories – In its application to the territories added to the State of Andhra Pradesh under Section 3 of Central Act LVI of 1959 the amendment made in respect of clause (e) of Section 4(1), made by Madras Act 34 of 1955, is repealed [Andh Pra A.L.O., 1961 (w.e.f. 1-4-1960)]. Kerala KERALA.-In sub-section (1), clause (o) for “Section 20 of the Cattle Trespass Act 1871” subs. “Section 19 of the Kerala Cattle Trespass Act, 1961” (Kerala Act II of 1963). Malabar Aria.-In its application to the Malabar area of the State of Kerala amendment in the section is the same as that of Tamil Nadu. Tamil Nadu In its application to the State of Madras in Section 4 ( I ) omit clause (e).[T.N. Act XXXIV of 1955, Section 2(a) (1-1-1056) ; T.N.A.L.O. 1969]. In clause (t) omit the words “and any person conducting a prosecution on behalf of Government in any High Court, in the exercise of its original criminal jurisdiction”. (Mad. Act XXXlV of 1955, Section 2 (1-1-1956) : Tamil Nadu ALO, 1969.
(1) In this Code the following words and expressions have the following meanings, unless a different intention appears from the subject or context
(a) “Advocate General” “Advocate General” includes also a Government Advocate, or, where there is no Advocate General Government Advocate, such officer as the State Government may, from time to time, appoint in this behalf.
; (b) “Bailable offence.” “Non-bailable offence.” “Bailable offence” mean an offence shown as bailable in the second schedule, or which is made bailable by any other law for the time being in force; and “non-bailable offence” means any other offence;
(c) “Charge.” “Charge’ ‘includes any head of charge when the charge contains more heads than one : * * * * (e) ” [Clerk of the State]” “[Clerk of the State]” includes any officer specially appointed by the Chief Justice to discharge the functions given by this Code to the 6[Glerk of the State] ;
(f) “Cognizable offence.” “Cognizable case”. “Cognizable offence” means an offence for, and “cognizable case” means a case in, which a police officer, within or without the presidency-towns, may, in accordance with the second schedule, or under any law for the time being in force, arrest without warrant;
(g) “Commissioner of Police.” “Commissioner of Police” includes a Deputy Commissioner of Police;
(h) “Complaint.” “Complaint’ ‘means the allegation made orally or in writing to a Magistrate, with a view to his taking action, under this Code, that some person, whether known or unknown, has committed an offence, but it does not include the report of a police officer: [(i) “High Court.” “High Court”, in relation to the Andaman and Nicobar Islands, means the High Court in Calcutta, and, in relation to any other local area, means the highest court of criminal appeal for that area (other than the Supreme Court) or, where no such court is established under any law for the time being in force, such officer as the State Government may appoint in this behalf: (j) “India.” “India” means the territories to which this Code extends]:
(k) “Inquiry.” “inquiry” includes every inquiry other than a trial conducted under this Code by a Magistrate or Court; (l) “Investigation.” “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 ; (m) “Judicial proceeding.” “Judicial proceeding’ ‘ includes any proceeding in the course of which evidence is or may be legally taken on oath; (n) “Non-cognizable offence.” “Non-cognizable case.” “Non-cognizable offence” means an offence for, and “non-cognizable case” means a case, in which a police officer, within or without a presidency-town, may not arrest without warrant; (o) “Offence.” “Offence” means any act or omission made punishable by any law for the time being in force; it also includes any act in respect of which a complaint may be made under (S.20 of the Cattle Trespass Act, 1871); (p) “Officer in charge of a police-station.” “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; (q) “Place.” “Place” includes also a house, building, tent and vessel; (r) “Pleader.” “Pleader,” used with reference to any proceeding in any Court, means a pleader [or a mukhtar] authorised under any law for the time being in force to practise in such Court, and includes (1) an advocate, a vakil and an attorney of a High Court so authorised, and (2) any * * * * other person appointed with the permission of the Court to act in such proceeding; (s) “Police-station.” “Police station” means any post or place declared, generally, 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) “Public Prosecutor.” “Public Prosecutor” means any person appointed under (Section 492), and includes any person acting under the directions of a Public Prosecutor and any person conducting a prosecution on behalf of [Government] in any High Court in the exercise of its original criminal jurisdiction : * * * * (u) “Sub-division.” “Sub-division’ ‘means a sub-division of a district; (v) “Summons-case.” “Summons-case” means a case relating to an offence, and not being a warrant-case; and (w) “Warrant case.” “Warrant-case” means a case relating to an offence punishable with death, [imprisonment for life or imprisonment for a term exceeding one year].
Words referring to Acts.-(2) Words which refer to acts done, extend also to illegal omissions; and Words to have same meaning as in Indian Penal Code.-All words and expressions used herein and defined in the Indian Penal Code, and not hereinbefore defined, shall be deemed to have the meanings respectively attributed to them by that Code.
SECTION 5: Trial of offences under Penal Code:
State Amendment WEST BENGAL.-In sub-section (2) of Section 5, for the words ‘but subject to any enactment’, substitute the words ‘but, save as otherwise provided by this Code, subject to any enactment’. [W.B. Act 8 of 1970, Section 3 and Sch., item 2].
(1) All offences under the Indian Penal Code shall be investigated, inquired into, tried and otherwise dealt with according to the provisions hereinafter contained. Trial of offences against other laws
(2) All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences.
PART 2 CONSTITUTION AND POWERS OF CRIMINAL COURTS AND OFFICES:
CHAPTER 2: OF THE CONSTITUTION OF CRIMINAL COURTS AND OFFICES:
SECTION 6: Classes of Criminal Courts:
Besides the High Courts and the Courts constituted under any law other than this Code for the time being in force, there shall be five classes of Criminal Courts in [India], namely,- : State Amendments GUJARAT.-In its application to the State of Gujarat the amendment made in Section 6 is the same as that made in Maharashtra, subject to the adaptation that for the words ‘State of Bombay’ the words “State of Gujarat” are to be substituted . [Central Act XI of 1960, Section 87 and Guj A. L. 0. (8th Am.) (w. e. f. 1-5-1960)]. MAHARASHTRA.-In its application to the State of Maharashtra for Section 6, the following shall be substituted, namely “6. Classes of Criminal Courts.-Besides the High Court and the Courts constituted under any law other than this Code for the time being in force, there shall be two daises of Criminal Courts in the State of Bombay, namely I. Court of Session. II. Court of Magistrate.” (Bom Act XXIII of 1951, Section 2, and Sch., (1-7-1953) and XCVII of 1958, Section 2(d). The words ‘State of Bombay’ substituted by Mah A. L” (Am) 0., 1961. MYSORE.-Same as in Maharashtra with “Mysore” substituted for “Maharashtra”. [Mys. Act 13 of 1965, Section 3 (1-10-1965)] PUNJAB, HARYANA, CHANDIGARH.-The following shall be substituted, namely “6. Clases of Criminal Courts.-Besides the High Court and the Courts constituted under any law other than this Code for the time being in force, there shall be two classes of Criminal Courts in the State of Punjab, namely 1. Courts of Session. II. Courts of Magistrates.” (Punjab Act 25 of 1964 and Act 31 of 1966). RAJASTHAN. Abu Area.-In its application to the Abu Area of the State of Rajasthan, the amendment made in Section 6 is the same as that made in Maharashtra. (Central Act XXXVII of 1956 (1-11-1956)]. UNION TERRITORIES. (except Chandigarh) In its application to the Union Territories, for Section-the following section shall be substituted- “6. Classes of Criminal Courts.-Besides the High Court and the Courts constituted under any law other than this code for the time being in force, there shall be two classes of Criminal Courts, namely I. Courts of Session. II. Courts of Magistrates”. Act 19 of 1969, Section 3 and Schedule, Item 1. Enforced in the Territories of Delhi from 2-10-1969 [Gazette of India, dt. 17-9-1969, Part II, Section 3(ii), page 1073.] In the Union territory of Goa, Daman and Diu, Goa, Daman and Diu (Separation of Judicial and Executive Functions) Order, 1963, shall continue to be in force. For powers of Judicial and Executive Magistrates in Goa, see Clauses 7 and 8 of that order which is published in Goa Gazette, dated 28-11-1963, page 411 (1-11-1963). WEST BENGAL.-For Section 6 substitute the following section 6. (1) Same as in Maharashtra. (2) There shall be following classes of Magistrates namely I. Judicial Magistrates: (a) Sub-divisional Judicial Magistrates. (b) Judicial Magistrates of the first class. (c) Judicial Magistrates of second class; (d) Executive Magistrates of the second class; (e) Special Judicial Magistrates; (f) Presidency Magistrates. II. Executive Magistrates: (a) District Magistrates; {b) Sub-Executive Magistrates; (c) Executive Magistrates of the first class. {d) Executive Magistrates of the second class; (e) Executive Magistrates of the third class; ( f ) Special Executive Magistrates; (g) Special Presidency Magistrates. [W. B. Act 8 of 1970, Section 3 and Schedule, Item 3.] Section 6-A GUJARAT 6-A-(1) In its application to the State of Gujarat, Section 6-A is -the same as that of Maharashtra. [Central Act XI of 1960, Section 87 and Guj A. L. (8th Am.) 0.1961 (w. e. f. 1-5-1960)]. (2) For the powers and jurisdiction of Magistrates appointed for the City of Ahmedabad, see the Ahmedabad City Courts Act, 1961. [ Guj XIX of 1961, Section 14(3) (4-11-1961)]”. MAHARASHTRA In its application to the State of Maharashtra after Section 6, the following shall be ‘inserted, namely “A-I, Classes of Magistrates. 6-A. Classes of Magistrates.-There shall be the following classes of Magistrates, namely I. Judicial Magistrates: (1) Presidency Magistrates (2) Magistrates of the first class. (3) Magistrates of the second class. (4) Magistrates of the third class. (5) Special Judicial Magistrates. II. Executive Magistrates: (1) District Magistrates. (2) Sub-Divisional Magistrates. (3) Taluka Magistrates. (4) Presidency Magistrates specially empowered by the State Government. (6) “Special Executive Magistrates.” (Bombay Act XXIII of 1951, Section 2 and Schedule). The Bombay Act XXIII of 1951 was extended to the newly added areas of Hyderabad, Kutch and Saurashtra and the region of Vidarda after the reorganzation of the State of Bombay vide Bom. Act No. XVII of 1958 (w. e. f., 1-9-1959). MYSORE Section 6-A in Mysore is the same as in Maharashtra except for Presidency Magistrate in both the categories. [Mys Act 13 of 1965, Section 4 (1-10-1965)]. PUNJAB, HARYANA AND CHANDIGARH The following Section 6-A shall be inserted, namely “A-I. Classes of Magistrates. 6-A. Classes of Magistrates.-There shall be the following Classes of Magistrates, namely 1. Judicial Magistrates: (1) Chief Judicial Magistrates. (2) Judicial Magistrates of the first class. (3) Judicial Magistrates of the second class. (4) Special Judicial Magistrates. II. Executive Magistrates: (1) District Magistrates. (2) Sub-divisional Magistrates. (3) Executive Magistrates of the first class. (4) Executive Magistrates of the second class.” (Punjab Act 25 of 1964). RAJASTHAN In its application to the Abu area of the State of Rajasthan after Section 6, new Section 6-A, shall be inserted as that in Maharashtra. [Central Act XXXVII of 1956 Section 119 (I.I 1-1956)]. UNION TERRITORIES (Except Chandigarh) After Section 6 insert the following namely A-I. Classes of Magistrates. “6-A. Classes of Magistrates.-There shall be the following Classes of Magistrates, namely 1. Judicial Magistrates: (1) Chief Judicial Magistrates. (2) Judicial Magistrates of the first class. (3) Judicial Magistrates of the second class. II. Executive Magistrates: (1) District Magistrates. (2) Sub-divisional Magistrates. (3) Executive Magistrates of the first class. (4) Executive Magistrates of the second class. (5) Special Executive Magistrates.” [Act 19 of 1969, Section 3 and Schedule (In Delhi from 2-10-1969)].
I.-Courts of Session:
II.-Presidency Magistrates :
III.-Magistrates of the first class
IV.-Magistrates of the second class :
V.-Magistrates of the third class.
SECTION 7: Sessions divisions and districts:
(1) Every State (excluding the presidency-towns) shall be a sessions division, or shall consist of sessions divisions; and every sessions division shall, for the purposes of this Code, be a district or consist of districts.
(2) Power to alter divisions and districts.-The State Governments may alter the limit, * * * or the number of such divisions and districts.
(3) Existing divisions and districts maintained till altered.-The sessions divisions and districts existing when this Code comes into force shall be sessions divisions and districts respectively, unless and until they are so altered.
(4) Presidency-towns to be deemed districts.-Every presidency- town shall, for the purposes of this Code, be deemed to be a district.
State Amendments
ANDHRA PRADESH. Added Territories.-In its application to the territories added under Section 3 of the Central Act LVI of 1959, the amendments made in Section 7 by Tamil Nadu Act XXXIV of 1955 shall stand repealed. Andhra Pradesh A. L. O. 1961 (w. e. f. 14.4-1960). GUJARAT.-(1) In its application to the State of Gujarat, Section 7 as substituted is the same as that of Maharashtra subject to the following adaptations, namely (a) for the words “State of Bombay” the words “State ofGujarat” are to be substituted See Guj A. (8th Am) Order, 1961 (w. e. f. 1-5-1960). (b) in sub-section (2) of Section 7 as substituted for the words “Greater Bombay” the words “City of Ahmedabad” are to be substituted. Central Act XI of 1960, Section 87 and Guj Act XIX of 1961, Section 15 (4-11-1961). (2) For the powers and jurisdiction of Magistrates appointed for the city of Ahmedabad, see the Ahmedabad City Courts Act, 1961 (Guj XIX of 1961) Section 13 and 14 and for the notification issued under Section 7(3) altering the limits of the district of Ahmedabad see No. CCC, 1061/4166 (ii)-D, dated 27-10-1961, publilhed in Guj Govt.Gaz., 1961, Part IV-A, page 271. MAHARASHTRA.-In its application to the State of Maharashtra Section 7 was substituted as follows, namely “7. Sessions Divisions and Districts.-(1) The State of Bombay shall consist of sessions divisions; and every sessions division shall for the purposes of this Code, be a district or consist of districts. (2) For the purposes of this Code, Greater Bombay shall be a sessions division and be deemed to be a district, (3) The State Government may alter the limits or the number of such divisions and districts. (4) The sessions divisions and districts existing when the Bombay Separation of Judicial and Executive Functions Act, 1951, comes into force shall be sessions divisions and districts, respectively, unless and until they are so altered.” [Bom. Acts XXIII of 1951, Section 2 and Schedule and XCVII of 1958, Section 2 (d)]. For the words “State of Bombay” the words “State of Maharashtra” substituted by Mah A.L (Am.) Order, 1961, w. e. f. (dated 1-5-1960). MYSORE.-For Section 7 of the principal Act, substitute the following section “7. Sessions Division and Districts.-(1) The State of Mysore shall consist of Sessions Divisions, and every Sessions Division shall, for the purposes of this Code, be a district or consist of districts. (2) The State Government may alter the limits or the number of such divisions and .districts. (3) The Sessions Divisions and districts existing when the Code of Criminal Pro- cedure (Mysore Amendment) Act, 1965, comes into force shall be sessions divisions and districts respectively, unless and until they are so altered. Mys Act XIII ofl965,Section 5 (dated 1-10-1965). PUNJAB, HARYANA, CHANDIGARH.-The following shall be substituted, namely “7. Sessions Divisions and Districts.-(1) The State of Punjab shall consist of Sessions Divisions; and every sessions division shall, for the purposes of this Code, be a district or part of a district or consist of districts. (2) The State Government, in consultation with the High Court, may after the limits or the number of such divisions and districts. (3) The sessions divisions and districts existing when the Punjab Separation of Judicial and Executive Functions Act, 1964, comes into force shall be sessions divisions and districts respectively, unless and until they are so altered.” (Punjab Act 25 of 1964). RAJASTHAN. Abu Area.-In its application to the Abu area of the State of Rajasthan, the amendment made in Section 7 is the same as that made in Maharashtra.-Central Act XXXVII of 1956, Section 119 (1-1-1956). TAMIL NADU.-In Section 7- In its application to the State of Tamil Nadu in Section 7 : (i) sub-section ( 1) omit the brackets and words “excluding the presidency-towns,” and (ii) after sub-section (1) insert the following : “(1-A) For the purposes of this Code, the presidency-town of Madras shall be a sessions division.” (Mad Act XXXIV of 1955, Section 3). Union Territories (except Chandigarh) In their application to all the Union Territories except Chandigarh for sub-sections (2) and (3) substitute the following, namely “(2) The State Government, in consultation with the High Court, may alter the limits, or the number, of such divisions and districts. (3) The sessions divisions and districts existing in any Union Territory immediately before the commencement of the Union Territories (Separation of Judicial and Executive Functions) Act, 1969 in that Union territory shall be sessions divisions and district respectively, unless and until they are altered as provided in sub-section (2)”. Act 19 of 1969, Section 3 and Sch., Item 2. WEST BENGAL.-(1) In its application to the State of West Bengal, for Section 7 substitute the following “7. Sessions divisions and districts.-(1) The State of West Bengal shall consist of sessions divisions; and every sessions division shall, for the purposes of this Code, be a district or consist of districts. (2) The State Government, in consultation with the High Court may alter the limits or the number of such divisions and districts. (3) The sessions divisions and districts existing when the W. B. Separation of Judicial and Executive Functions Act, 1970, comes into force shall be sessions divisions and districts respectively, unless and until they are so altered.”-W. B. Act 8 of 1970, Section 3 and Sch., item 4.
SECTION 8: Power to divide districts into sub-divisions:
(1) The State Government may divide any district outside the presidency-towns into subdivisions, or make any portion of any such district a sub-division and may alter the limits of any sub-division.
Existing sub-divisions maintained.-(2) All existing sub-divisions which are now usually put under the charge of a Magistrate shall be deemed to have been made under this Code. State Amendments In its application to State of- GAJARAT.-In sub-section (1) for the words “outside the presidency towns” substitute the words “outside city of Ahmedabad” subs. vide Central Act XI of 1960 and Guj. Act XIX of 1961.
MAHARASHTRA.-In sub-section (1) for the words “outside the presidency-towns” substitute the words “outside Greater Bombay”. (Bom. Act 23 of 1951, Section 2 and Sch.). (2) After the reorganization of the State of Bombay in 1956, this Bombay Act was extended to the newly added areas of Hyderabad, Kutch and Saurashtra and the region of Vidarbha as from 1-9-1959 by Bombay Act XCVII of 1958. RAJASTHAN. Abu Area.-In its application to the Abu area of the State of Rajasthan, the amendment made in Section 8 is the same as that made in Maharashtra.-Central Act XXXVII of 1956, Section 119 (1-11-1956).
SECTION 9: Court of session:
(1) The State Government shall establish a Court of Session for every sessions division, and appoint a Judge of such Court.
[(2) The State Government may, by general or special order in the Official Gazette, direct at what place or places the Court of Session shall ordinarily hold its sitting; 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 sitting 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.]
(3) The State Government may also appoint Additional Sessions Judges and Assistant Sessions Judges to exercise jurisdiction in one or more such Courts.
(4) A Sessions Judge of one sessions division may be appointed by the State Government to be also an Additional Sessions Judge of another division, and in such case be may sit for the disposal of cases at such places space or in either division as the State Government may direct.
(5) All Courts of Session existing when this Code comes into force shall be deemed to have been established under this Act. State Amendments ANDHRA PRADESH. Addict Territories.-In its application to the territories added to the State of Andhra Pradesh under the Central Act LVI of 1959 the amendment made in the heading “C” occurring before Section 9 by Madras Act XXXIV of 1955 is repealed by Andh Pra. A. L. O., 1961 (w. e. f. 1.4-1960). GUJARAT.-(1) In its application to the State of Gujarat, the amendments are the same as those made in Maharashtra, subject to the following adaptations, namely (a) In its application to the City of Ahmedabad,for words “Greater Bombay” the words “City of Ahmedabad” are to be substituted.- Central Act XI of 1960, Section 87 and Guj Act XIX of 1961, Section 15 (4-11-1961). (2) For notification issued by the State Government under Section 7 and Section 9(2) constituting the sessions divisions of Ahmedabad and the places where it is to hold its sittings from 4.11-1961, see Notification No .CCC. 1061/4166-(iii)-D, dated 27-10-1961 published in Guj. Govt. Gas., 1961, Pt IV-A, p. 272. MAHARASHTRA.-(i) For the heading “C-Courts and offices outside the Presidency towns” the heading “C-Court of Sessions for Greater Bombay and Courts and Offices outside Greater Bombay” is substituted ; [(Bombay Act 32 of 1948, Section 3) (10-4-1948)] ; (ii) in sub-section (1) after the words “sessions division, and” insert the words “in consultation with the High Court” ; (iii) in sub-section (3), after the words “may also” insert the words “in consultation with the High Court”; (iv) in sub-section (4) after the words “sessions division may” insert the words “in consultation with the High Court”. (Bombay Act 23 of 1951, Section 2 and Sch). PUNJAB, HARYANA, ‘AND CHANDIGARH (i) in sub-section (1), after the words “sessions divisions, and” the words “in consultation with the High Court” shall be inserted; (ii) in sub-section (2), after the words “State Government”, the words “in consultation with the High Court” shall be inserted; (iii) in sub-section (3), after the words “may also”, the words “in consultation with the High Court” shall be inserted, and (iv) in sub-section (4), after the words “State Government” occurring twice, the words “in consultation with the High Court” shall be inserted. (Punjab Act 25 of 1964 .Act 31 of 966). RAJASTHAN. Abu Area.-In its application to the Abu area of the State of Rajasthan, the amendments made in Section 9 are the same as those made in Maharashtra.-Central Act XX.XVII of 1956, Section 119 (1-11-1956). TAMIL NADU.-For the heading “C-Courts and offices outside the Presidency towns” substitute “C-Court of sessions for the Presidency-town of Madras and Offices outside the presidency-town of Madras”. [(Mad. Act 34 of 1955, Section 4 ) (1-1-1956).] Union Territories (except Chandigarh) In its application to the Union territories except Chandigarh in Section 9.- (i) in sub-section (1), after the words “sessions division, and,” substitute the words “in consultation with the High Court,”; (ii) in sub-section (2), after the words “State Government”, substitute the words “in consultation with the High Court,” ; (iii) in sub-section (3), after the words “may also,” substitute the words “in consultation with the High Court,” and (iv) in sub-section (4), after the words “State Government,” wherever they occur, insert the words “in consultation with the High Court.”-Act 19 of 1969, Section 3 and Sch., item 3 (in Delhi, on 2-10-1969). WEST BENGAL.-(1) In the heading “C-Courts and offices outside the Presidency towns” omit the words “outside the Presidency-towns”. (W.B. Act 20 of 1958, Section 17 and Sch. II.) (2) In sub-section (1), for the words “and appoint” substitute the words “and, in consultation with the high Court, appoint”, W.B. Act 8 of 1970. (3) In sub-section (2), (3) and (4), for the words ‘State Government’ wherever they occur, substitute the words “State Government, in cousultation with the High Court” Presi Act VIII of 1968.
SECTION 10: District Magistrate:
State Amendments ASSAM.-In its application to the State of Assam, in Section 10, for words “an Additional District Magistrate” occurring between the words ‘be’ and ‘and’ substitute the words “one or more Additional District Magistrates,” and for the words “such Additional District Magistrates” occurring, between the words ‘and’ and ‘shall’, substitute the words “an Addi- tional District Magistrate,”-Assam Act XX of 1966, Section 2. GUJARAT.– In its application to the State of Gujarat the amendments made in Section 10 are the same as those made -in Maharashtra, subject however, to the adaptation that in its application to the “City of Ahmedabad” for the words “Greater Bombay” the words “City of Ahmedabad’ ‘are to be substituted.-Central Act XI of 1960, Section 87 and Guj. Act XIX of 1961, Section 15 (dated 4-11-1961). MAHARASHTRA.-In Section 10,- (i) in sub-section (1)- (a) for the words “outside the presidency-towns” substitute the words “Outside Greater Bombay”; {b) delete the words “Magistrate of the first class, who shall be called the”. (ii) in sub-section (2)- (a) delete the words “any Magistrate of the first class to be”, (b) for the words “an Additional District Magistrate” substitute the words “one or more Additional District Magistrates” ; (c) for the words “Such Additional District Magistrate” substitute the words “an Additional District Magistrate”; (iii) after sub-section (2), add the following new sub-section (2-A) : “(2-A) For the purposes of sub-section (3) of Section 528, such Additional District Magistrate shall be deemed to be subordinate to the District Magistrate.” ; (iv) after sub-section (2-A) in place of deleted sub-section (3) insert the following: “(3) For the purposes of sub-section (3) of Section 192, Section 406-B and sub-section (3-A) of Section 528, an Additional District Magistrate shall be deemed to be subordinate to the District Magistrates.” (Bom. Acts 23 of 1951, Section 2 and (Sch. 8 of 1954, Section 2 and Sch. and 21 of 1954, Section 3 and Sch. II). MYSORE.-In its application to the State of Mysore, in Section 10 : (i) in sub-section (1), omit the words “Magistrate of the First Class, who shall be called the” ; (ii) in sub-section (2), for the words “any Magistrate of the first class to be an Additional District Magistrate,” substitute the words “one or more Additional District Magistrates” and for the words “such Additional District Magistrate,” substitute the words “an Additional District Magistrate” ; (iii) For sub-section (3) substitute the following- “(3) For the purpose of sub-section (3) of Section 192, and sub-sections (3) and (3-A) of Section 528, an Additional District Magistrate shall be deemed to be subordinate to the District Magistrate.”-Mys. Act XIII of 1965, Section 6 (1-10-1965). PUNJAB, HARYANA AND CHANDIGARH- (i) in sub-section (1), for the words “a Magistrate” the words “an Executive Magistrate” shall be substituted, and after that sub-section as so amended, the following sub-section shall be inserted, namely : “(1-A) In every district the High Court shall invest a Judicial Magistrate of the first class with the powers of a Chief Judicial Magistrate under this Code or any other law for the time being in force.” ; (ii) in sub-section (2), for the words “any Magistrate of the first class to be an Additional District Magistrate”, the words “any Executive Magistrate of the first class to be an Additional District Magistrate” shall be substituted; and (iii) the marginal heading shall be substituted by the following, namely : “District Magistrate and Chief Judicial Magistrate.” RAJASTHAN : Abu area.-In its application to the Abu area of the State of Rajasthan, the amendments made in Section 10 are the same as those made in (1) of Maharashtra- Central Act XXXVII of 1956, Section 119 (1-11-1956). UNION TERRITORIES (except Chandigarh). In its application to the Union territories, in Section 10- (i) for the marginal heading, substitute the following marginal heading, namely “District Magistrate and Chief Judicial Magistrate.”; (ii) in sub-section (1), for the words “a Magistrate,” substitute the words “an Executive Magistrate”; (iii) in sub-section (2), for the words “any Magistrate of the first class,” substitute the words “any Executive Magistrate of the first class” and after that sub-section as so amended, insert the following sub-sections, namely “(2-A) In every district the State Government shall, in consultation with the High Court, invest a Judicial Magistrate of the first class with the powers of a Chief Judicial Magistrate under this Code or any other law for the time being in force”. “(2-B) The State Government may, in consultation with the High Court, appoint any Judicial Magistrate of the first class to be an Additional Chief Judicial Magistrate and such Additional Chief Judicial Magistrate shall have all or any of 18 . the powers of a Chief Judicial Magistrate referred to in sub-section (2-A)as the State Government may, in consultation with the High Court direct,” (iv) for sub-section (3), substitute the following sub-section, namely : “(3) For the purposes of Section 88, sub-section (6-C), Section 406-B and Section 528, sub-sections (2-B) and (3), such Additional District Magistrate shall be deemed to be subordinate to the District Magistrate; and for the purposes of Section 88, sub-section (6-C), Section 192, sub-section (1), Section 406-B and Section 528, sub-sections (2) and (2-A), such Additional Chief Judicial Magistrate shall be deemed to be subordinate to the Chief Judicial Magistrate.”-Act 19 of 1969, Section 3 and Sch., item 4 (in Delhi on 2-10-1969). WEST BENGAL.-In its application to the State of West Bengal, in Section 10- (i) in sub-section (1), for the words ‘a Magistrate,’ substitute ‘an Executive Magistrate’; (ii) in sub-section (2), for the words ‘any Magistrate,’ substitute ‘any Executive Magistrate’; (iii) in sub-section (3), for the words ‘Section 192, sub-section (1),’ substitute the figures, words, brackets and letter, “Sections 88, sub-section (6-C), 124, 125, 192, sub-section (1),” W.B. Act 8 of 1970, Section 3 and Sch., item 6; (iv) after sub-section (2), insert the following sub-section, namely : “(2-A) A District Magistrate may, by a general or a special order, authorise an Additional District Magistrate to do any act or take any action required by a Court or other competent authority to be done or taken by the District Magistrate, if such act or action is within the powers conferred on the Additional District Magistrate under sub-section (2), except where the District Magistrate is directed, expressly or by necessary implication, to do such act or take such action himself.” -W.B. Act XII of 1966, Section 3 (11-5-1966).
(1) In every district outside the presidency-towns the State Government shall appoint a Magistrate of the first class, who shall be called the District Magistrate.
(2) The State Government may appoint any Magistrate of the first class to be an Additional District Magistrate * * * and such Additional District 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], as the State Government may direct.
[(3) For the purposes of (section 192), sub-section (1), * * * and 528, sub-sections (2) and (3), such Additional District Magistrate shall be deemed to be subordinate to the District Magistrate.]
SECTION 11: Officers temporarily succeeding to vacancies in office of District Magistrate:
Whenever in consequence of the office of a District Magistrate becoming vacant, any officer succeeds temporarily to the chief 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.
SECTION 12: Subordinate Magistrates:
State Amendments GUJARAT.-In its application to the State of Gujarat, the amendments made in Section 12 are the same as those made in Maharashtra, subject however, to the adaptation that in its application to the City of Ahmedabad for the words “Greater Bombay” the words “City of Ahmedabad” are to be substituted- Central Act XI of 1960, Section 87 and Guj. Act XIX of 1961, Section 15 (4-11.1961). MAHARASHTRA.-(i) In sub-section (1)- (a) delete the words “beside the District Magistrate” ; (b) for the words “outside the presidency towns” substitute the words “outside Greater Bombay”; (c) delete the words “The State Government or the District Magistrate) subject to the control of the State Government”. (Bom. Act 23 of 1951, Section 2 and Sch.) ; (d) for the words “may from time to time” substitute the words “the Sessions Judge, subject to the control of the High Court, may, from time to time”. (Bom. Act 34 of 1953, Section 2). (ii) After sub-section (1) the following sub-section shall be inserted, namely “(1-A) The power of appointment of Magistrates under sub-section (1) shall on the issue of public notification under Article 237 of the Constitution, be exercised subject to the terms of the said notification.” (iii) For the marginal note to the said section, substitute the following “Judicial Magistrates”. (Bom. Act 23 of 1951, Section 2 and Sch.) MYSORE.-In its application to the State of Mysore, for Section 12, substitute the following “12. Judicial Magistrates.-(1) The State Government may appoint as many persons as it thinks, to be Magistrates of the first, second or third class in many districts, and the Sessions Judge subject to the control of the High Court, may, from time to time, define local areas within which such persons may exercise all or any of the powers with which they may respectively be invested under this Code: Provided that the power of appointment of Magistrates under this sub-section shall on the issue on a public notification under Article 237 of the Constitution be exercised subject to the terms of the said notification. (2) Except as otherwise provided by such definition, the jursidiction and powers of such Magistrates shall extend throughout such district.”-Mys. Act XIII of 1965, Section 7 (1-10-1965). PUNJAB HARYANA AND CHANDIGARH.-For Section 12 the following shall be substituted, namely.– “12. Executive and Judicial Magistrates.-(1) The State Government may appoint as many persons as it thinks fit besides the District Magistrate, to be Executive Magistrates of the first or second class in any district, and the State Government or the District Magistrate, subject to the control of the state Government may, from time to time, define local areas within which such persons may exercis e all or any of the powers with which they may respectively be invested under this Code. (2) The High Court may confer on any person who is a member of the Punjab Civil Service (Judicial Branch) the powers of any class of a Judicial Magistrate in any district; and the High Court or the Chief Judicial Magistrate, subject to the control of the High Court, may, from time to time, define local areas within which he may exercise all or any of the powers with which he may be invested under this Code. (3) The State Government, in consultation with the High Court, may, for such period not exceeding six months from the commencement of the Punjab Separation of Judicial and Executive Functions Act, 1964, as it may think fit, appoint as many persons, who are members of the Punjab Civil Service (Executive Branch), as maybe considered necessary to be Judicial Magistrates in any district ; and the State Government, in consultation with the High Court, may define local areas within such persons may exercise all or any of the powers with which they may, respectively, be invested under this Code. (4) Except as otherwise provided by such definition, the jurisdiction and powers of such persous shall extend throughout such district. (5) The power of appointment of Judicial Magistrates under sub-sections (2) and (3) shall, on the issue of a public notification under Article 237 of the Constitution of India, be exercised subject to the terms of the said notification.” (Punjab Act 25 of 1964). RAJASTHAN.-Abu Area.-In its application to the Abu area of the State of Rajasthan, the amendments made in Section 12 are the same as those made in (1) of Maharashtra.- Central Act XXXVII of 1956, Section 119 (1-11-1956). UNION TERRITORIES (except Chandigarh). In its application to the Union territories, for Section 12, substitute the following, namely “12. Executive Magistrates and Judicial Magistrates.-(1) The State Government may appoint as many persons as it thinks fit, besides the District Magistrate, to be Executive Magistrates of the first or second class in any district, and the State Government or the District Magistrate, subject to the control of the State Government, may, from time to time, define local areas within which such persons may exercise all or any of the powers with which they may, respectively, be invested under this Code. (2) The State Government in consultation with the High Court, may, confer on any person who is a Civil Judge or a member of the Judicial Service of a Union territory or a group of such territories, the powers of any class of Judicial Magistrates in any district ; and the State Government, in consultation with the High Court or, the Chief Judicial Magistrate subject to the control of the High Court may, from time to time, define local areas within which he may exercise all or any of the powers with which he may be invested under this Code. (3) The State Government, in consultation with the High Court may, for such period not .exceeding three years from the commencement of the Union Territories (Separation of Judicial and Executive Functions) Act) 1969, as it may think fit appoint as many persons, who are members of a Civil Service in any Union territory or in any State and who are or have been exercising the powers of a Magistrate in such territory or State at or before the commencement of the said Act, as may be considered necessary to be Judicial Magistrates in any district, and the State Government, in consultation with the High Court, may define local areas within which such persons may exercise all or any of the powers with which they may, respectively be invested under this Code. (4) Except as otherwise provided by any such definition as is referred to in sub-section (1), (2) or (3), the jurisdiction and powers of such persons shall extend throughout such district.”-Act 19 of 1969, Section 3 and Sch., Item 5 (in Delhi, 2-10-1969). WEST BENGA.L -In its application to the State of West Bengal, for Section 12, substitute the following, namely “12. Subordinate Executive and Judicial Magistrates.-(1) The State Government may appoint as many persons as it thinks fit, besides the District Magistrates, to be Executive Magistrates of the first, second or third class in any district outside the presidency-town, and the State Government or the District Magistrate, subject to the control of the State Government, may, from time to time, define the local areas within which such Executive Magistrates may exercise all or any of the powers with which they may respectively be invested under this Code. (2) The State Government may, in consultation with the High Court, appoint as many persons as it thinks fit, from among the members of the Judicial Service of the State, to be Judicial Magistrates of the first, second or third class in any district, outside the presidency-town, and the State Government in consultation with the High Court or Sessions Court, subject to the control of the State Government acting in consultation will the gh Court, may from time to time define the local areas within which such persons may exercise all or any of powers with which they may be invested under this Code. (3) Notwithstanding anything contained in sub-section (1), the State Government may, in consultation with the High Court, appoint for such period not exceeding five years from the commencement of West Bengal Separation of Judicial and Executive Functions Act, 1970, in any district outside the presidency-town as many persons as it considers necessary, who are or have been members of the West Bengal Civil Service (Executive) or the West Bengal Junior Civil Service, to be Judicial Magistrates in such district, and the State Government in consultation with the High Court of Sessions Judge, subject to the control of the State Government acting in consultation with the High Court, may define the local areas within which such persons may exercise all or any of the powers with which they may be invested under this Code. (4) Except as otherwise provided under sub-sections (1), (2) and (3) the jurisdiction and powers of Executive Magistrates and Judicial Magistrates shall extend throughout the district. (5) Appointment and control of Judicial Magistrates under sub-sections (2) and (3) shall, on the issue of a public notification published under Article 237 of the Constitution of India, be in accordance with the said notification.”-W.B. Act 8 of 1970, W. 3 and Sch., Item 7.
(1) The State Government may appoint as many persons as it thinks fit, besides the District Magistrate to be Magistrates of the first, second or third class in any district outside the presidency -towns ; and the State Government or the District Magistrate, subject to the control of the State Government may, from time to time, define local areas within which such persons may exercise all or any of the powers with which they may respectively be invested under this Code.
(2) Local limits of their jurisdiction.-Except as otherwise provided by such definition, the jurisdiction and powers of such persons shall extend throughout such district.
SECTION 13: Power to put Magistrate in charge of sub-division:
(1) The State Government may place any Magistrate of the first or second class in charge of a sub-division, and relieve him of the charge as occasion requires
(2) Such Magistrate shall be called Sub-divisional Magistrates.
(3) Delegation of power to District Magistrate- The State Government may delegate its powers under this section to the District Magistrate. State Amendments ASSAM._ Section 13 was substituted by Assam Act 13 of 1964: “13. (1) The State Government may appoint as many persons as it thinks fit to be sub-divisional Magistrates in any district in the State of Assam. (2) The State Government, or subject to the Control of the State Government, the District Magistrate may place one or more sub-divisional Magistrate in charge of a sub-division.” GUIARAT.__In its application to the State of Gujarat, Section 13 is the same as the one substituted in Maharashtra, subject, however to the adaptation that in its application to the City of Ahmedabad for the words “Greater Bombay” the words “City of Ahmedabad” are to be substituted- Central Act XIX of 1961, Section 15 (4-11-1961). MAHARASHTRA.-In its application to the State of Maharashtra, for Section 13 substitute the following section : “13. (1) The State Government may appoint as many persons as it thinks fit to be Sub-divisional Magistrates and Taluka Magistrates in any district outside Greater Bombay. (2) The State Government or, subject to the control of the State Government, the District Magistrate may place- (i) one or more Sub-Divisional Magistrates in charge of a sub-division, and (ii) one or more Taluka Magistrates in charge of a taluka or mahal.” (Bom. Acts 34 of 1953, Sections 3 and 8 of 1954, Section 2 and Sch). (2) After the reorganisation of the State of Bombay in 1956, Section 13 as substituted by the abovementioned Bombay Acts was extended to the newly added areas of Hyderabad, Kutch and Saurashtra and the region of Vidarbha as from 1-9-1959 by Bom. Act XCVII of 1958. MYSORE.-In its application to the State of Mysore, for Section 13, substitute the following: “13. Appointment of Sub-Divisional Magistrates and Taluk Magistrates and their Jurisdiction.- (1) The State Government, may appoint as many persons as it thinks fit to be Sub-Divisional Magistrates and Taluk Magistrates in any district. (2) The State Government, or, subject to the control of the State Government, the District Magistrate, may place,- (i) one or more Sub-Divisional Magistrates in charge of a Sub-Division, and (ii) one or more Taluk Magistrates in charge of a Taluk.” Mys. Act XIII of 1965, Section 7 (1-10-1965). PUNJAB AND HARYANA : CHANDIGARH.-In its application to the States of Punjab and Haryana and Union territory of Chandigarh in Section 13 in sub-section (1) for the word “Magistrate,” substitute the words “Executive Magistrate.” Punj Act XXV of 1964, Section 2 and Sch., Pt. I, item 7 (2-10-1964) and Act 31 of 1966, Sections 29 and 88 (1-11-1966). RAJASTHAN.-Abu Area.-In its application to the Abu area of the State of Rajasthan the amendment made in Section 13 is the same as that made in (1) of Maharashtra. Central XXXVII of 1956, Section 119 (1-11-1956). UNION TERRITORIES (except Chandigarh) In its application to the Union territories, in Section 13, for the word “Magistrate,” substitute the words “Executive Magistrate”. Act 19 of 1969, Section 3 and Sch., item 6 (in Delhi, on 2-10-1969). Section 13-A WEST BENGAL.-In its application to the State of West Bengal, after Section 13, insert the following section, namely : “13-A Appointment of Sub-Divisional Judicial Magistrates.-(1) The High Court may place any Judicial Magistrate of the first or second class, in charge of a sub-division, and relieve him of the charge as occasion required. (2) Such Judicial Magistrates shall be called Sub-divisional Judicial Magistrates. (3) The High Court, may delegate its powers under this section to the Sessions Judge of the district where the appointment is to be made, subject to such conditions, if any, as it thinks fit”. W.B. Act VIII of 1970, Section 3 and Sch., Item 9.
SECTION 14: Special Magistrates:
(1) The Government may confer upon any person [who holds or has held any judicial post under the Union or a State or possesses such other qualifications as may, in .consultation with the High Court, be specified in. this behalf by the State Government by notifica tion in the Official Gazette] all or any of the powers conferred or conferable by or under this Code on a Magistrate of the first, second or third class in respect to particular cases or to a particular class or particular classes of cases, or in regard to cases generally in any local area outside the presidency towns.
(2) Such Magistrates shall be called Special Magistrates, and shall be appointed for such term as the State Government may by general or special order direct.
* * * The State Government may delegate, with such limitations as it thinks fit, to any officer under its control the powers conferred by subsection (1).
(4) No powers shall be conferred under this section on any police officer below the grade of Assistant District Superintendent, and no powers shall be conferred on a police officer except so far as may be necessary for preserving the peace, preventing crime and detecting, apprehending and detaining offenders in order to their being brought before a Magistrate, and for the performance by the officer of any other duties imposed upon him by any law for the time being in force. State Amendments GUJARAT.-In its application to the State of Gujarat, Section 14 is the same as the one substituted in Maharashtra-see Central Act XI of 1960, Section 87. MAHARASHTRA.-(1) In its application to the State of Maharashtra- (a) for Section 14 substitute the following section, namely,- “14. Special Magistrates.-(1) The State Government may, in consultation with the High Court confer upon any person who holds or has held any judicial post under the Union or a State, or possesses such other qualifications as may, in consultation with the High Court, be specified in this behalf by the State Government by notification in the Official Gaeette, all or any of the powers conferred or conferable by or under this Code on a judicial Magistrate in respect to particular cases or to a particular class or classes of cases, or in regard to cases generally in any local area. Such Magistrate shall be called Special Judicial Magistrate and shall be appointed for such term as the State Government may in consultation with the High Court by general or special order, direct. (2) The State Government may also appoint executive Magistrates for particular areas or for the performance of particular functions and confer upon them such powers as it deems fit. Such Magistrates shall be called Special Executive Magistrates and shall be appointed for such term as the State Government may, by general or special order, direct: Provided that no power shall be conferred under this sub-section on any police officer below the grade of Assistant or Deputy Superintendent and no power shall be conferred on a police officer except so far as may be necessary for preserving the peace, preventing crime and detecting, apprehending and detaining offenders in order to their being brought before a Magistrate, and for the performance by the officer of any other duties imposed upon him by any law for the time being in force. (3) The State Government may delegate, with such limitations as may think fit, to any other officer under its control the powers conferred by sub-section (1) or subsection (2).” (Bom. Acts 23 of 1951 ,39 of 1955; 20 of 1956 and 97 of 1958.) After the reorganization of the State of Bombay in 1956, Section 14 as substituted and amended by the abov rmentioned Bombay Act was extended to the newly added areas of Hyderabad, Kutch and Saurashtra and the region of Vidarbha as from 1-9-1969 Bom. Act XCVII of 1958. MYSORE-In its application to the State of Mysore for Section 14, substitute the following : “14 Special Magistrates -(1) The State Government may, in consultation with the High Court confer upon any person who holds or has held any judicial post under the Union or a State, or possesses such other qualifications as may, in consultation with the High Court, be specified in this behalf by the State Government by notification in the Official Gazette, all or any of the powers conferred or conferable by or under this Code, on a Judicial Magistrate in respect to particular cases or to a particular class of cases, or in regard to casts, generally in any local area. Such Magistrates shall be called Special Judicial Magistrates and shall be appointed for such term as the State Government may, in consultation with the High Court, by general or special order, direct (2) The State Government may also appoint Executive Magistrates for particular areas or for the performance of particular functions and confer upon them such powers as it deems fit. Such Magistrates shall be called Special Executive Magistrates and shall be appointed for such term as the State Government may, by general or special order, direct: Provided that no powers shall be conferred under this sub-section on any police officer below the grade of Assistant or Deputy Superintendent and no power shall be conferred on a police officer, except so far as may be necessary for preserving the peace, preventing crime and detecting, apprehending and detaining offenders in order to their being brought before a Magistrate, and for the performance by the officer of any other duties imposed upon him by any law for the time being in force. (3) The State Government may delegate, with such limitations as it may think fit, to any other officer under its control the powers conferred by sub-section (2).” Mys. Act 13 of 1965, Section 7 (1-10-1965). PUNJAB, HARYANA AND CHANDIGARH.-In its application to the State of Punjab and Haryana and Union Territory of Chandigarh, for Section 14 substitute the following section, namely: “14. Special Judicial Magistrates.-1 he State Government may, in consultation with the High Court confer upon any person who holds or has held any judicial post under the Union or a State, or possesses such other qualifications as may, in consultation with the High. Court, be specified in this behalf by the State Government by notification in the Official Gazette, all or any of the powers conferred or conferable by or under this Code on a Judicial Magistrate in respect to particular cases or to a particular class of cases, or in regard to cases generally in any local area. Such Magistrates shall be called Special Judicial Magistrates and shall be appointed for such terms as the State Government may, in consultation with the High Court, by general or special order, direct.” (Punjab Act 25 of 1964.) RAJASTHAN.-Abu area.-In its application to the Abu area of the State of Rajasthan the amendment made in Section 14 is the same as that made in (1) (a) of Maharashtra. [Central Act XXXVII of 1956, Section 119 (1-11-1956).] UNION TERRITORIES (except Chandigarh) In its application to the Union territories, for Section 14 substitute the following, namely : “14. Special Executive Magistrates.-The State Government may appoint Executive Magistrates for particular areas or for the performance of particular functions and confer on them such powers as it deems fit. Such Magistrates shall be called Special Executive Magistrates and shall be appointed for such term as the State Government may, by general or special order, direct.” Act 19 of 1969, Section 3 and Sch., item 7 (in Delhi on 2-10-1969). WEST BENGAL.-In its application to the State of West Bengal, for Section 14, substitute the following, namely: “14. Special Executive and Judicial Magistrates.-(1) The State Government may confer upon any person who possesses such qualifications as may be specified in this behalf by the State Government, by notification in the Official Gazette, all or any of the powers conferred or conferable by or under this Code, on an Executive Magistrate of the first, second or third class for a particular purpose or for particular purposes in any local area, outside the Presidency-town. (2) Such Magistrates shall be called Special Executive Magistrates and shall be appointed for such term as the State Government may by general or special order (3) The State Government may delegate, with such linaration as it thinks fit, to any officer under its control the powers conferred by sub-section (1). (4) The State Government may, in consultation with the High Court, corner upon any person who holds or has held any judicial post under any judicial post under the Union or a State, or possesses such other qualifications, as may, in consultation with the High Court, be specified in this behalf by the State Government by notification in the Official Gazette, all or any of the powers conferred as conferable by or under this Code, on a Judicial Magistrate of the first, second or third class in regard to particular cases or to a particular classes of cases, or in regard to cases generally, in any local area, outside the Presidency-town. (5) Such Magistrates shall be called Special Judicial Magistrates and shall be appointed for such term as the State Government may, in consultation with the High Court, by general or special order, direct. (6) No powers shall be conferred under this section on any police officer below the grade of Assistant District Superintendent, and no powers shall be conferred on a police officer except so far as may be necessary for preserving the peace, preventing crime and detecting, apprehending and detaining offenders in order to their being brought before the appropriate Magistrate and for the performance by the officer of any other duties imposed upon him by any law for the time being in force.”. W. B. Act VIII of 1970, Section 3 and Sch., item 10.
SECTION 15: Benches of Magistrates:
(1) The State Government may direct any two or more Magistrates in any place outside the presidency-towns to sit together as a Bench, and may by order invest such Bench with any of the powers conferred or conferable by or under this Code on a Magistrate of the first, second or third class, and direct it to exercise such powers in such cases, or, such classes of cases only, and within such local limits, as the State Government thinks fit.
(2) Powers exercisable by Bench in absence of special direction. -Except as otherwise provided by any order under this section, every such Bench shall have the powers conferred by this Code on a Magistrate of the highest class to which any one of its members, who is present taking part in the proceedings as a member of the Bench, belongs, and as far as practicable shall, for the purposes of this Code, be deemed to be a Magistrate of such class. State Amendments GUJARAT-In its application to the State of Gujarat, the amendment made in Section 15, is the same as that made in Maharashtra, subject however to the adaptation that in its application to the City of Ahmedabad for the words “Greater Bombay” the words “City of Ahmedabad” be sukstituted. Central Act XI of 1960, Section 87 and GUI. Act XIX of 1961, Section 15 (4-11-1961). MAHARASHTRA .—(1) In its application to the State of Maharashtra in sub-section (1). for the words “the State Government may direct any two or more Magistrates in any place outside the Presidency-towns’ ‘substitute the words “the State Government may, in consultation with the High Court, direct any two or more Judicial Magistrates in any place outside Greater Bombay”. Bombay Act XXIII of 1951, Section 2 and Sch. (1-7-1953). (2) After the reorganization of the State of Bombay in 1956, the amendment made in Section 15 by the abovementioned Bombay Act is extended to the newly added areas of Hyderabad, Kutch and Saurashtra and the region of Vidarbha of the new State of Bombay as from 1-9-1959 by Bombay Act XCII of 1958. MYSORE.-In sub-section (1), for the word “Magistrates”, substitute the word “Judicial Magistrate”. Mys. Act XIII of 1965, Section 8 (1-10-1965). PUNJAB, HARYANA AND CHANDIGARH.-For sub-section (1) the following shall be substituted, namely “(1) The High Court may direct any two or more Judicial Magistrates in any place in the State of Punjab to sit together as a Bench, and may by order invest such Bench with any of the powers conferred or conferable by or under this Code on a Judicial Magistrate of the first or second class, and direct it to exercise such powers in such cases, or, such classes of cases only, and within such local limits, as the High Court thinks fit.” (Punjab Act 25 of 1964 and Act 31 of 1966). RAJASTHAN.-Abu Ana.-In its application to the Abu area of the State of Rajasthan, the amendment made in Section 15 is the same as that made in (1) of Maharashtra. Central Act XXXVII of 1956, Section 119 (1-11-1956). UNION TERRITORIES (except Chandigarh) In its application to the Union territories, in Section 15, for sub-section (1), substitute the following, namely: “Benches of Judicial Magistrates.-(7) The State Government in consultation with the High Court, may direct any two or more Judicial Magistrates in any place in a Union territory to sit together as a Bench and may by order invest such Bench with any of the powers conferred or conferable by or under this Code on a Judicial Magistrate of the first or second class, and direct it to exercise such powers in such cases, or, such classes of cases only and within such local limits as the State Government, in consultation with the High Court, thinks fit.” Act 19 of 1869, Section 3 and Sch” Item 8 (in Delhi on 2-10-1969). WEST BENGAL.-In its application to the State of West Bengal, in Section 15- (a) in the marginal note, for the words “Benches of Magistrates”, substitute “Benches of Judicial Magistrates”; (b) (i) in sub-section (1), after the words “State Government” in the two places they occur, insert the words “in consultation with the High Court” ; (ii) for the words “or more Magistrates” substitute “or moreJudicial Magistrates” ; (iii) for the words “a Magistrate” substitute “a Judicial Magistrate” ; (c) for the words “a Magistrate’ ‘in the two places they occur, substitute’ ‘a Judicial Magistrate.” W.B. Act 8 of 1970, Section 3 and Sch” item 11.
SECTION 16: Power to frame rules for guidance of Benches:
The State Government may, or, subject to the control of the State Government, the District Magistrate may, from time to time, make rules consistent with this Code for the guidance of Magistrates’ Benches in any district respecting the ‘ following subjects- (a) the classes of cases to be tried ; {b) the times and places of sitting ; (c) the constitution of the Bench for conducting trials ; (d) the mode of settling differences of opinion which may arise between the Magistrates in session. State Amendments GUJARAT.-In its application to the State of Gujarat, the amendment made in Section 16 is the same as that made in Maharashtra. See Central Act XI of 1960, Section 87. MAHARASHTRA.-(1) In its applicalion to the State of Maharashtra in Section 16 for the words “The State Government, may or subject to the control of the State Government, the District Magistrate” substitute the words “The High Court, subject to the sanction of the State Government.” Bombay Act 23 of 1951, Section 2 and Sch. (2) After the reorganization of the State of Bombay in 1956, the amendment made in Section 16 by the abovementioned Bombay Act is extended to the newly added areas of Hyderabad, Kutch and Saurashtra and the region of Vidarbha as from 1-9-1959 by Born. Act XCII of 1958. MYSORE.-In Section 16 of the principal Act, for the words “the State Government may, or, subject to the control of the State Government, the District Magistrate”, the words “the High Court, subject to the approval of the State Government” shall be substituted. Mys. Act XIII of 1965, Section 9 (1-10-1965). PUNJAB, HARYANA AND CHANDIGARH- (i) for the words “The State Government may, or, subject to the control of the State Government, the District Magistrate”, the words “The High Court, subject to the approval of the State Government”, shall be substituted, and (ii) for the words “Magistrates’ Benches”, the words “Judicial Magistrates’ Benches” shall be substituted. Punjab Act 25 of 1964 and 31 of 1966. RAJASTHAN.-Abu Area.-In its application to the Abu area of the State of Rajasthan the amendment made in Section 16 is the same as that made in (1) of Maharashtra. Central Act XXXVII of 1956, Section 119 (1-11-1956). UNION TERRITORIES (except Chandigarh)-In its application to the Union territories, in Section 16- (i) for the words “State Government…… District Magistrate”, substitute the words “High Court, subject to the approval of the State Government” ; and (ii) for the words “Magistrates’ Benches”, substitute “Judicial Magistrates’ Benches”. Act 19 of 1969, Section 3 and Sch., item 9 (in Delhi on 2-10-1969). WEST BENGAL.-In its application to the State of West Bengal, in Section 16- (i) for the words “State Government, …the District Magistrate”, substitute the words “High Court with the previous approval of the State Government” ; (ii) for the words “Magistrates’ Benches” substitute the words “Benches of Judicial Magistrates”; and (iii) for the words “Magistrates in Sessions”, substitute “Judicial Magistrates in Sessions.” W.B. Act VIII of 1970, Section 3 and Sch., item 12.
SECTION 17: Subordination of Magistrates and Benches to District Magistrate:
State Amendments GUJARAT.-Same as that of Maharashtra- MAHARASHTRA.-(1) In its application to the State of Maharashtra in Section 17 (i) In sub-section (1) of Section 17,- (a) For the words “All Magistrates” substitute the words “All Judicial Magistrates” ; (b) delete the figures “13”; (c) for the words “District Magistrates” substitute the words “Sessions Judges” ; (d) delete the word “and” at the end (ii) Delete sub-section (2) and sub-section (5). (iii) In the first marginal note to the section for the word “Magistrate” the words “Judicial Magistrates’ ‘ and for the words “District Magistrate” the words “Sessions Judge” be substituted. (iv) In sub-section (4) of Section 17, for the words “by the District Magistrate and such Judge or Magistrate” substitute the words and brackets “by a Civil Judge (Senior Division) or if there is no Civil Judge (Senior Division), by the Session Judge or Additional or Assistant Sessions Judge of an adjoining Sessions Division, and such Judge”. Bom. Act 23 of 1951, Section 2 and Sch. and LXXI of 1954, Section 2. (2) After the reorganization of the State of Bombay in 1956 the amendments made in Section 17 by the abovementioned Bombay Acts are extended to the newly added areas of Hyderabad, Kutch and Saurashtra and the region of Vidarbha as from 1-9-1959 by Bom. Act XCII of 1958. MYSORE-Same as that of Maharashtra, see Section 10 of Mysore Act 13 of 1965. PUNJAB, HARYANA AND CHANDIGARH.-The following sections shall be substituted, namely: “17. Subordination of Assistant Sessions Judges, Judicial Magistrates and Benches to Sessions Judge and Chief Judicial Magistrate.-(1) All Judicial Magistrates appointed under sub-sections (2) and (3) of Section 12 and Section 14 and all Benches constituted under Section 15. shall, subject to the control of the Sessions Judge be subordinate to the Chief Judicial Magistrate, and he may, from time to time, make rules or give special orders consistent with this Code as to the distribution of business among such Magistrates and Benches. (2) All Chief Judicial Magistrates shall be subordinate to the Sessions Judge. (3) All Assistant Sessions Judges shall be subordinate to the Sessions Judge in whose Court they exercise jurisdiction, and he may, from time to time, make rules consistent with this Code as to the distribution of business among such Assistant Sessions Judges, (4) The Sessions Judge may also, when he himself is unavoidably absent or incapable of acting, make provision for the disposal of any urgent application by an Addi- tional or Assistant Sessions Judge or, if there be no Additional or Assistant Sessions Judge by the Chief Judicial Magistrate, and such Judge or Magistrate shall have jurisdiction to deal with any such application. ORISSA,__The words “or in his absence at headquarters by the Additional District Magistrate or if there be more than one such Additional District Magistrate by any one of them” were added in sub-section (4) after the words “by the District Magistrate”. (Orissa Act 21 of 1959). RAJASTHAN-Abu area-Same as that of (1) of Maharashtra. UNION TERRITORIES (except Chandigarh), same as that of Punjab. , WEST BENGAL-In its application to the State of West Bengal, for Section 17, substitute the following sections namely : “17. Subordination of Executive Magistrates.-(1) All Executive Magistrates appointed under Sections 12, 13 and 14 shall be subordinate to the District Magistrate, and he may from time to time, make rules or give special orders consistent with this Code as to the distribution of business amongst such Magistrates. (2) Every Executive Magistrate in a sub-division shall be subordinate to the SubDivisional Executive Magistrate subject, however, to the general control of the District Magistrate. Section 17-A After Section 17, insert the following Section 17-A MAHARASHTRA “17-A. Subordination of Executive Magistrate.-(1) All Executive Magistrates appointed under Section 13 or 14 shall be subordinate to the District Magistrate and every Taluka Magistrate 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 magistrates subordinate to him and as to allocation of business to an Additional District Magistrate. Bom. Act VIII of 1954, Section 2 and Sch. PUNJAB, HARYANA AND CHANDIGARH 17-A. Subordination of Executive Magistrates.-(1) All Executive Magistrates appointed under sub-section (1) of Section 12 and Section 13 shall be subordinate to the District Magistrate and every Executive Magistrate (other than a sub-divisional Magistrate) exercising powers in a sub-division shall also be subordinate to the Subdivisional 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 allocation of business to an Additional DistrictMagistrate. WEST BENGAL 17-A. Subordination of Judicial Magistrates and Benches.-(1) All Judicial Magistrates appointed under Sections 12, 13-A and 14 and all Benches constituted under Section 15 shall, subject to the control of the Sessions Judge, be subordinate to the Sub-Divisional Judicial Magistrate and the Sub-divisional Judicial Magistrate may from time to time distribute the business amongst such Judicial Magistrates and Benches consistent with this Code and the rules framed by the High Court. (2) The ‘Sub-divisional Judicial Magistrate shall be subordinate to the Sessions Judge. (3). Notwithstanding anything contained in sub-section (1), the Sessions Judge may, in for any reason he thinks fit so to do, distribute the business referred to in that Subsection amongst the Judicial Magistrates and Benches within the Sessions divisions Consistently with this Code and the rule framed by the High Court. Section 17-B After Section 17-A, insert the following Section 17-B MAHARASHTRA “17-B. Inferior Criminal Courts.-Court of Sessions fand Courts of Magistrates including Courts of Presidency Magistrates) shall be Criminal Courts inferior to the High Court and Courts of Magistrates outside Greater Bombay, shall be Criminal Courts inferior to the Courts of Sessions.” Bom. Act XXIII of 1951, Section 52 and Sch- PUNJAB, HARYANA AND CHANDIGARH 17-B. Courts inferior to the High Court and Court of Sesssion.-Courts of Session and Courts of Judicial Executive Magistrates shall be Criminal Courts inferior to the High Court and Courts of Judicial and Executive Magistrates shall be Criminal Courts inferior to the Court of Session.” (Punjab Act XXV of 1964). WEST BENGAL 17-B. Subordination of Assistant Sessions Judge to Sessions Judge.-(1) All Assistant Sessions Judges shall be subordinate to the Sessions Judge in whose Court they exercise jurisdiction and the Sessions Judge may from time to time distribute the business amongst such Assistant Sessions Judges consistent with this Code and the rules framed by the High Court. (2) The Sessions Judge may also, when he himself is unavoidably absent or incapable of acting, make provisions for the disposal of any urgent application by the Additional or Assistant Sessions Judge, or if there be no Additional or Assistant Sessions Judge, by the Sub-divisional Judicial Magistrate, and any such Judge or Magistrate shall have jurisdiction to deal with any such application. Section 17-G After Section 17-B, insert the following Section 17-C WEST BENGAL 17-C. Delegation of powers by the High Court.-The High Court, and subject to its control the Sessions Judge, may authorise an Additional Seissions Judge to perform within its jurisdiction all or any of the powers of supervision and control over the Judicial Magistrates. Section 17-D After Section 17-C, insert the following Section 17-D WEST BENGAL 17-D. inferior Criminal Courts.-Courts of Sessions and Courts of Magistrates shall be Criminal Courts inferior to the High Court and Courts of Magistrates (excluding Courts of Presidency Magistrates) shall be criminal courts inferior to the Court of Session.” W. B. Act 8 of 1970, Section 3 and Sch., item 13″
(1) All Magistrates appointed under Sections 12. 13 and 14, and all Benches constituted under Section 15, shall be subordinate to the District Magistrate, and he may, from time to time, make rules or give special orders consistent with this Code as to the distribution of business among such Magistrates and Benches; and
(2) To Sub-divisional Magistrate.-Every Magistrate (other than a Sub-Divisional Magistrate) and every Bench exercising powers in a subdivision shall also be subordinate to the Sub-Divisional Magistrate, subject, however, to the general control of the District Magistrate.
(3) Subordination of Assistant Sessions Judges to Sessions Judge. -All Assistant Sessions Judges shall be subordinate to the Sessions Judge in whose Court they exercise jurisdiction, and he may, from time to time, make rules consistent with this Code as to the distribution of business among such Assistant Sessions Judges.
(4) The Sessions Judge may also, when he himself is unavoidably absent or incapable of acting, make, provision for the disposal of any urgent application by an Additional or Assistant or Assistant Sessions Judge or, if there be no Additional or Assistant Judge, by the District Magistrate, and such Judge or Magistrate shall have jurisdiction to deal with any such application.
(5) Neither the District Magistrate nor the Magistrates or Benches appointed or constituted under Sections 12, 13, 14 and 15 shall be subordinate to the Sessions Judge, except to the extent and in the manner hereinafter expressly provided.
SECTION 18: Appointment of Presidency Magistrates:
(1) The State Government shall, from time to time, appoint a sufficient number of persons (hereinafter called Presidency Magistrates) to be Magistrates for each of the presidency-towns and shall appoint one of such persons to be Chief Presidency Magistrate for each such town.
(2) The powers of a Presidency Magistrate under this Code shall be exercised by the Chief Presidency Magistrate, or by a salaried Presidency Magistrate, or by any other Presidency Magistrate empowered by the State Government to sit singly, or by any Bench of Presidency Magistrates.
[(3) A Presidency Magistrate may be appointed under this section for such term as the State Government may, by general or special order, direct.
(4) The State Government may appoint any person to be an Additional Chief Presidency Magistrate, and such Additional Chief Presidency Magistrate shall have all or any of the powers of a Chief Presidency Magistrate under this Code or under any other law for the time being in force, as the State Government may direct.] State Amendments GUJARAT.-Ahmedabad.-With effect from the 4th November, 1961, the City of Ahmedabad is, by virtue of Section 13 of the Ahmedabad City Courts Act, 1961 (Guj. Act XIX of 1961), to be a sessions division and is to be deemed to be a district within the meaning of Section 7 of the Criminal Procedure Code and the Criminal Procedure Code is to have effect accordingly. MAHARASHTRA.-After sub-section (4) the following sub-section shall be added, namely : “(5) The power of appointment of the Chief Presidency Magistrate and the Additional Chief Presidency Magistrate shall be exercised in consultation with the High Court and the power of appointment of other Presidency Magistrates shall, on the issue of public notification under Article 237 of the Constitution, be exercised subject to the terms of the said notification.” Bom. Act XXIII of 1951, Section 2 and Schedule. WEST BENGAL.-For Section 18, substitute the following, namely : “18. Appointment of Presidency Magistrate.-(1) Subject to the -provisions of subsection (4) and (5), the State Government in consultation with the High Court,- (a) shall from time to time, appoint a sufficient number of persons (hereinafter called ‘the Presidency Magistrates’) to be Magistrates for the Presidency-town of Calcutta and shall appoint one of such persons to be the Chief Presidency Magistrate for such town ; (it) may also appoint one of such Presidency Magistrates to be an Additional Chief Presidency Magistrate and such Additional Chief Presidency Magistrate shall have all or any of the powers of the Chief Presidency Magistrate under this Code or under any other law for the time being in force, as the State Government, in consultation with the High Court, may direct. (2) The powers of a Presidency Magistrate under this Code shall be exercised by the Chief Presidency Magistrate or by any Presidency Magistrate or by any Bench of Presidency Magistrate. (3) A Presidency Magistrate may be appointed under this section for such term as the State Government in consultation with the High Court, may, by general or special order, direct. (4) The Chief Presidency Magistrate and the Additional Chief Presidency Magistrate shall be appointed from among the members of the West Bengal Higher Judicial Service. (5) The other Presidency Magistrates shall be appointed from among the members of the West Bengal Civil Service ( Judicial) : Provided that as many Presidency Magistrates, as may be considered necessary, may also be appointed from among the members of the West Bengal Civil Service (Executive) or West Bengal Junior Civil Service for such period not exceeding five years from the commencement of the West Bengal Separation of Judicial and Executive Functions Act, .1970, in the Presidency-town of Calcutta, as the State Government, in consultation with the High Court, may. think fit. (6) Appointment and control of Presidency Magistrates under sub-section (5) shall, on the issue of a notification published under Article 237 of the Constitution of India, be in accordance with the terms of the said notification.”-West Bengal Act 8 of 1970, Section 3 and Sch., item 14. Section 18-A After Section 18, insert the following section, namely: MAHARAHTRA. “18-A. Special Presidency Magistrates.-The State Government may also appoint, for such term as it may, by special or general order, direct, any person as a Presidency Magistrate for the performance of all or any of the functions of a Presidency Magistrate excepting those relating to inquiry into, or cognizance, investigation or trial of, any offence. Such Presidency Magistrates shall be called Special Presidency Magistrate”- West Bengal Act 8 of 1970, Section 3 and Sch., item 15.
SECTION 19: Benches:
Any two or more of such persons may (subject to the rules made by the Chief Presidency Magistrate under the power hereinafter conferred) sit together as a Bench.
SECTION 20: Local limits of jurisdiction:
Every Presidency Magistrate shall exercise jurisdiction in all places within the presidency-town for which he is appointed, and within the limits of the port of such town and of any navigable river or channel leading thereto, as such limits are defined under the law for the time being in force for the regulation of ports and port-dues. State Amendment GUJARAT.-City of Ahmedabad.-In its application to the City of Ahmedabad, for the words “presidency-town”, substitute the words “City of Ahmedabad”.-Guj. Act XIX 1961, Section 15 (4-11-1961).
SECTION 21: Chief Presidency Magistrate:
(1) Every Chief Presidency Magistrate shall exercise within the local limits of his jurisdiction all the powers conferred on him by this Code or which by any law or rule in force immediately before the Code comes into force are required to be exercised by any Senior -or Chief Presidency Magistrate, and may, from time to time, with the previous sanction of the State Government, make rules consistent with this Code to regulate- (a) the conduct and distribution of business and the practice in the Courts of the Magistrates of the town; (b) the times and places at which Benches of Magistrates shall sit; (c) the constitution of such Benches ; (d) the mode of settling differences of opinion which may arise between Magistrates in session ; and (e) any other matter which could be dealt with by a District Magistrate under his general powers of control over the Magistrates subordinate to him.
(2) The State Government may) for the purposes of this Code, declare what Presidency Magistrates [including Additional Chief Presidency Magistrates] are subordinate to the Chief Presidency Magistrate, and may define the extent of their subordination. State Amendment WEST BENGAL,-In its application to the State of West Bengal in Section 21- (i) in sub-section (1), for the words “with the previous sanction of the State Government, made”, substitute the words “make, with the previous approval of the High Court” ; (ii) in clause (e), for the words “could be dealt with, by a District Magistrate”, substitute the words “requires to be dealt with by him” ; and (iii) in sub-section (2), after the word “declare”, insert the words “in consultation with the High Court.”-W. B. Act VIII of 1970, Section 3, and, Sch” item 16.
SECTION 22: Justicer of the Peace for the mofussil:
[Every State Government, so far as regards the territories suject to its administration [* * *] may, be notification in the Official Gazette, appoint such [persons resident within [India] and not being the subjects of any foreign State] as it thinks fit to be Justices of the Peace within and for the local area mentioned in such notification]. State Amendment ASSAM.-Same as in West Bengal except for clause (a) of Explanation which is as follows “(a) in a Municipality, award as notified under the Assam Municipal Act, 1956, and”-Assam Act XX of 1966, Section. WEST BENGAL.-For Section 22 of the Code, substitute the following: “22. Appointment of Justices of the Peace.-The State Government may, by notification in the Official Gazette, appoint, for such period as may be specified in the notification and subject to such rules as may be made by the State Government, any person who is a citizen of India and as tohose integrity and suitability it is satisfied, to be a Justice of the Peace for a local area to be mentioned in the notification, and more than one Justice of the Peace may be appointed for the same local area. Ss. 22-A and 22-B. (As inserted by States). ASSAM. Same as that of West Bengal with the following modifications- (i) for the word ‘volunteer’ wherever occurring, read “Home Guard” ; (ii) for clause (b) of sub-section (3) and Explanation thereto, read the following, namely- “(b) when made upon a Home-Guard, to have been made by a competent authority calling upon the Home Guard for duty under sub-section (1) of Section 7 of the Assam Home Guards Act, 1947. WEST BENGAL.-After S. 22 insert the following sections namely-
SECTION 22A: Powers of Justices of Peace:
(1) A Justice of the Peace for any local area shall, for the purpose of making arrest, have within such area all the powers of a police officer referred to in (Section 54) and of an officer incharge of a Police station referred to in (Section 55).
(2) A Justice of the Peace making an arrest in exercise of any powers under subsection (1) shall, forthwith take or cause to be taken the person arrested before the officer incharge of the nearest police station and furnish such officer with a report as to the circumstances of the arrest. Such officer shall thereupon arrest the person.
(3) (i) A Justice of the Peace for any local area shall have power within such area, to call upon any member of the police force on duty or any volunteer to aid him__ (a) in taking or preventing the escape of any person who has participated in the commission of any cognizable offence or against whom a reasonable com- plaint has been made or credible information has been received or a reasonable suspicion exists of his having so participated; (b) in the prevention of crime in general and, in particular, in the prevention of a breach of the peace or a disturbance of the public tranquility. (ii) Where a nember of the Police Force on duty or any volunteer has been called upon to render aid under clause (i), such call shall be deemed- (a) when made upon a member of the police force, to have been made by a competent authority, (b) when made upon a volunteer, to have been made by a Unit Commandant (duly authorised in this behalf by the State Government) calling upon the volunteer for duty under sub-section (a-1) of (S.10 of the West Bengal National Volunteer Force Act, 1949) .
(4)- A Justice of the Peace for any local area may, in accordance with such rules as may be made by the State Government,- (a) issue a certificate as to the identity of any person residing within such area, or (b) verify any document brought before him by any such person, or (c) attest any such document required by or under any law for the time being in force to be attested by a Magistrate, and until the contrary is proved, any certificate so issued shall be presumed to be correct and any document so verified shall be deemed to have been as fully attested as if he had been a Magistrate,
SECTION 22B: Duties of Justice of the Peace:
(1) Subject to such rules as may be made by the State Government, every Justice of the Peace for any local area shall- (a) on receipt of information of the occurrence of any incident involving a breach of the peace, or of a commission of any offence within such local area, forthwith make inquiries into the matter and report in writing the result of his inquiries to the nearest Magistrate and to the Officer incharge of the nearest police station, (b) if the offence referred to in clause (a) is a cognizable offence, also prevent the removal of anything from or the interference in any way with, the place of occurrence of the offence, (c) when so requested in writing by a police officer making an investigation under Chapter 14 in respect of any offence committed within such local area,- (i) render all assistance to the police officer in making such an investigation, (ii) record any statement made under expectation of death by a person in respect of whom a crime is believed to have been committed.
(2) The provisions of sub-section (2) of (Section 164) relating to the manner of recording statements shall, as far as may be, apply to the recording of a statement under subclause (ii) of clause (c) of sub-section (1) as if the statement were recorded by a Presidency Magistrate or a Magistrate of the first class.” ( S.3 of the West Bengal Act, 1955).
SECTION 23: [Justice of the Peace for the presidency-towns, Present Justices of the Peace.]:
Rep. by the Criminal Law Amendment Act, 1923 (12 of 1923), Section 4.
SECTION 24: [Justice of the peace for the presidency-towns. Present Justices of the Peace.]:
Rep. by the Criminal Law Amendment Act, 1923 (12 of 1923), Section 4.
SECTION 25: Ex-officio Justices of the Peace:
In virtue of their respective offices, [* * *] [the Judges of the High Courts] are Justices of the Peace within and for [the whole of India] [* * *], Sessions Judges and District Magistrates are Justices of the Peace within and for the whole of the territories administered by the State Government under which they are serving, and the Presidency Magistrates are Justices of the Peace within and for the towns of which they are respectively Magistrates State Amendment ASSAM.-Sections 25 of the Code is omitted. GUJRAT-City of Ahmedabad.-Magistrates in the City of Ahmedabad have the powers and exercise the jurisdiction of a Presidency Magistrate.-[See Guj Act XIX of 1961, Section 14(3)]. WEST BENGAL.-Section 25 of the Code is omitted. [W.B. Act 30 of 1955, Section 4]. F.-Suspension and removal
SECTION 26: [Suspension and removal of Judges and Magistrates:
Suspension and removal of Justices of the Peace]. Rep. by the A. 0. 1937.
SECTION 27: [Suspension and removal of Judges and Magistrates:
Suspension and removal of Justices of the Peace]. Rep. by the A. 0. 1937.
CHAPTER 3: POWERS OF COURTS:
SECTION 28: Offences under Penal Code:
Subject to the other provisions of this Code, any offence under the Indian Penal Code may be tried- (a) by the High Court, or (b) by the Court of Session, or (c) by any other Court by which such offence is shown in the eighth column of the second schedule to be triable.
SECTION 29: Offences under other laws:
(1) Subject to the [other provisions of this Code], any offence under any other law shall, when any Court is mentioned in this behalf in such law, be tried by such Court.
(2) When no Court is so mentioned, it may be tried by the High Court or [subject as aforesaid] by any Court constituted under this Code by which such offence is shown in the eighth column of the second schedule to be triable. State Amendments ANDHRA PRADESH. Added Territories.-The amendments made in Section 29 by Madras Act XXXIV of 1955 shall stand omitted -Andh Pra ALO 1961. TAMIL NADU.-(i) To sub-section (1), add the following proviso; “Provided that where the Court so mentioned is the High Court, it shall observe in the trial of such offence the same procedure which a Court of session would observe if it were trying that case.” (ii) In sub-section (2) the words “by the High Court or omitted”. (Mad Act XXXIV of 1955, Section T.N.A.L.O. 1969). UNION TERRITORIES (except Chandigarh) For sub-section (1) substitute the following, namely “(1) Subject to the other provisions of this Code, any offence under any other law shall, when any Court is mentioned in this behalf in such law, be tried by such Court : Provided that if the Court so mentioned is a Court specified in column ( 1 ) of the Table below, such offence shall be tried by the Court of the Judicial Magistrate specified against it in column (2) thereof; TABLE Name of the court specified in the law Court by which triable 1 2 1. District Magistrate. Chief Judicial Magistrate. 2 2. Magistrate of the first class. Judicial Magistrate of the first class. 3. Sub-divisional Magistrate. Judicial Magistrate of the first class. 4. Magistrate of the second class. 5. Magistrate of the third class. Judicial Magistrate of the Second class. 6. Magistrate (except where it occurs in “Judicial Magistrate” any expression mentioned above).-Act 19 of 1969, Section 3 and Sch, item 11. WEST BENGAL.-To sub-sections (1), the following proviso shall be added (1) Same as that of the Union territories, but for the Table which is as follows -W.B. Act VIII of 1970, Section 3 and Sch., item 18.
SECTION 29A:
[Trial of European British subjects by second and third class Magistrates} Rep. by the (Criminal Law (Removal of Racial Discriminations) Act, 1949).
SECTION 29B: Jurisdiction in the case of Juveniles:
Any offence, other than one punishable with death or [imprisonment] for life, committed by any person who at the date when he appears or is brought before the Court is under the age of fifteen years) may be tried by a District Magistrate or a Chief Presidency Magistrate) or by any Magistrate specially empowered by the State Government to exercise the powers conferred by subsection (1), (S.8 of the Reformatory Schools Act, 1897), or, in any area in which the said Act has been wholly or in part repealed by any other law providing for the custody, trial or punishment of youthful offenders, by any Magistrate empowered by or under such law to exercise all or any of the powers cow ferred thereby.] State Amendments ANDHRA PRADESH, Telengana Area.-Section 29-B of the Code of Criminal Procedure, 1898, shall cease to apply to any area of Telengana in which the provisions of the Hyderabad children Act, 1951, have been brought into force.-(Hyderabad Act XXXII of 1951). ASSAM.-Section 29-B repealed by Assam Children Bill, 1970, Clause 58(1). BIHAR.-Section 29-B does not apply to areas where Bihar Children Act, 1970 is enforced. GUJARAT.-(1) Bombay Area.-In its application to the Bombay area of the State of Gujarat, the provisions of Section 29-B of the Code of Criminal Procedure, 1898, shall cease to apply to the Bombay area in which Parts II to XI of the Bombay Chidren Act, 1948, have been brought into operation-Bombay Act LXXI of 1948, Section 6 and Guj A. L. 0. 1961. 2. Saurashtra Area.-In its application to the Saurashtra area of the State of Gujarat, the provisions of Section 29-B of the Code of Criminal Procedure, 1898, shall cease to apply to any area of Saurashtra to which Parts II to XI of the Saurashtra Children Act, 1956, have been brought into operation.-Saurashtra Act XXIX of 1956, Section 6 and Guj A.L.O. 1961. 3. In its application to the State of Gujarat, the amendments made in Section 29-B are the same as those made in the State of Maharashtra. 4. Chief Magistrate in the City of Ahmedabad has the powers and exercises the jurisdiction of a Chief Presidency Magistrate.-See Gujarat Act XIX of 1961, Section 14(3) (4-11-1961). MADHYA PRADESH.-Section 29-B does not apply to areas where Madhya Pradesh Bal Adhyadesh is enforced. MAHARASHTRA.-(i) This section shall cease to apply to any area in which Parts II to XI of the Bombay Children Act, 1948 (Bom. Act 71 of 1948) have been brought into operation. (Bom Act LXXI of 1948, Section 6). (ii) Delete the words “a District Magistrate or” ; (iii) For the words “by any Magistrate specially empowered by the State Government” substitute the words “by any Judicial Magistrate specially empowered by the State Government in consultation with the High Court.” (Bom Act XXIII of 1951, Section 2 and Sch). MYSORE.-(i) In its application to the State of Mysore Section 29-B ceases to apply __ Mysore Act XIX of 1964, Section 6(1) (9-4-1964). (ii) After the above Mysore Act Mysore Code of Criminal Procedure (Separation of the Jadicial and Executive Functions Act, 1965 (Mysore Act XIII of 1965) has made the following amendments in Section 29-B, namely (a) Omit the words “a District Magistrate or” ; and (b) for the words “by any District Magistrate specially empowered by the State Government”, substitute the words “by any Judicial Magistrate specially empowered by the State Government”.-Mysore Act XIV of 1965 Section 12 (1-10-1965). PUNJAB, HARYANA AND CHANDIGARH.-For the words “a District Magistrate or a- Chief Presidency Magistrate, or by any Magistrate specially empowered by the State Government” the words “a Chief Judicial Magistrate or any other Judicial Magistrate specially empowered by the High Court” shall be substituted. Punjab Act 25 of 1964 and 31 of 1966. RAJASTHAN.-Same as that of Maharashtra (i). UTTAR PRADESH.-Section 29-B does not apply to areas where Chapter I and III to VIII of U. P. Children Act, 1951 is enforced. UNION TERRITORIES.-This section does not apply to the areas in which Children Act, 1960 (60 of 1960) has been enforced. WEST BENGAL.-In its application to the State of West Bengal, in Section 29-B- (i) for the words “a District Magistrate. . . .State Government”, substitute the words “a Sub-divisional Judicial Magistrate specially empowered by the State Government in consultation with the High Court” ; and (ii) for the words “exercise all or any other powers conferred thereby”, substitute the words “try such persons”.-West Bengal Act VIII of 1970, Section 3, and Sch., Item 19.
SECTION 30:
[ Offences punishable with imprisonment not exceeding seven years.-Notwithstanding anything contained in (Section 28) or (Section 29), the State Government may, in consultation with the High Court, invest any District Magistrate, Presidency Magistrate or Magistrate of the first class with power to try as a Magistrate all offences not punishable with death or with imprisonment for life or with imprisonment for a term exceeding seven years: Provided that no District Magistrate, Presidency Magistrate or Magistrate of the first class shall be invested with such powers unless he has, for not less than ten years, exercised as a Magistrate powers not inferior to those of a Magistrate of the first class]. State Amendments GUJARAT.-(1) Same as that of Maharashtra (1). (2) Magistrate, in the City of Ahmedabad have the powers and exercise the jurisdiction of a Presidency Magistrate.-See Guj Act XIX of 1961, Section 14(3) (4-11-1961). MAHARASHTRA.-(1)In Section 30 delete the words “District Magistrate” at both the places where they occur.-Bom Act XXXIX ofl955. Section 3, (29-1-1956). (2) After the reorganization of the State of Bombay in 1956, the amendment made in Section 30 by the above mentioned Bombay Act was extended to the newly added areas of Hyderabad, Kutch and Saurashtra and the region of Vidarbha as from 1-9-1959 by Bombay Act XXVII of 1958. MYSORE.-Omit the words “District Magistrate” at both places where they occur.-Mys Act XIII of 1965, Section 13 (1-10-1965). PUNJAB) HARYANA AND CHANDIGARH.-The following shall be substituted namely : “30. Offences punishable with imprisonment not exceeding seven years.-Notwithstanding anything contained in Section 28 or Section 29, the High Court may invest any Chief Judicial Magistrate or any other Judicial Magistrate of the first class with power to try as a Judicial Magistrate all offences not punishable with death or with imprisonment for lift or with imprisonment for a term exceeding seven years : Provided that no Chief Judicial Magistrate or Judicial Magistrate of the first class shall be invested with such powers unless he has, for not less than ten years, exercised a a Magistrate powers not inferior to those of a Magistrate of the first class.” (Punjab Ad 25 of 1964). SAURASTRA.-The words “District Magistrate, Presidency Magistrate” at both the places where they occur shall be omitted.-Sau. Act No. 45 of 1953. UNION TERRITORIES (except Chandigarh). In its application to the Union territories, for Section 30, substitute the following namely: “30. Offences punishable with imprisonment not exceeding seven years.-Notwithstanding anything contained in Section 28 or Section 29) the State Government in consultation with the High Court, may invest any Chief Judicial Magistrate or an other Judicial Magistrate of the first class with power to try as a Judicial Magistrate all offences not punishable with death or with imprisonment for life or with imprisonment for a term exceeding seven years : Provided that no Chief Judicial Magistrate or Judicial Magistrate of the first class shall be invested with such powers unless he has, for not less than ten years, exercised as a Magistrate powers not inferior to those of a Magistrate of the first class: Provided further that if any Judicial Magistrate of the first class has, prior to his appointment as such Magistrate, exercised the powers of an Assistant Sessions Judge, he may be invested with the powers under this section notwithstanding the fact that he has not exercised the powers of Magistrate of the first class for not less than ten years.” Act 19 of 1969, Section 3 and Schedule, Item 14 (in Delhi on 2-10-1969). WEST BENGAL In its application to the State of West Bengal, for Section 30, substitute the following, namely: “30. Offences punishment with imprisonment not exceeding seven years.-Notwithstanding any thing contained in Section 28 or Section 29, the State Government may, in consultation with the High Court, invest any Judicial Magistrate of the first class with power to try as a Magistrate all offences not punishable with death or with imprisonment for life or with imprisonment for a term exceeding seven years : Provided that no Judicial Magistrate of the first class has, prior to his appointment as such powers unless he has, for not less than ten years, exercised powers not inferior to those of a Judicial Magistrate of the first class : Provided further that if any Judicial Magistrate of the first class has, prior to his appointment as such Magistrate, exercised the powers of an Assistant Sessions Judge, he may be invested with the powers under this section notwithstanding that he had not exercised the powers of a Judicial Magistrate of the first class for the ten years.”-W. B. Act VIII of 1970, Section 3 and Schedule, Item 20.
SECTION 31: Sentences which High Courts and Sessions Judges may pass:
(1) A High Court may pass any sentence authorised by law.
(2) A Sessions Judge or additional Sessions Judge may pass any sentence authorised by law; but any sentence of death passed by any such Judge shall be subject to confirmation by the High Court.
(3) An Assistant Sessions Judge may pass any sentence authorised by law, except a sentence of death or [of imprisonment for life or of imprisonment for a term exceeding ten years].
SECTION 32: Sentences which Magistrates may pass:
(1) The Courts of Magistrates may pass the following sentences, namely: State Amendments UNION TERRITORIES (except Chandigarh) In Section 32, (i) Substitute “Judicial Magistrates” for the word “Magistrate” in the marginal heading; (ii in sub-section (1), in the opening sentence, before the word “Magistrates” insert the word “Judicial” ;(iii) in Cls. (a) and (b), for the words “Courts of Presidency Magistrates and of Magistrates of the first class” and “courts of Magistrates” substitute the words “Courts of Judicial Magistrates of the first class” and “Courts of Judicial Magistratess” respectively; (iv) omit clause (c), and in sub-section (2)for the words, “any Magistrates” substitute the words “any Judicial Magistrates.” -Act 19 of 1969, Section 3 and Schedule, Item 14 (in Delhi, on 2-10-1969). Notes Objects of punishments.-Punishment is awarded in order to achieve one or more of the four objectives, namely, to serve as deterrent, to be preventive, to be reformative and to be retributive, and amongst the four the first is the all important one. AIR 1960 All 190. Consideration for sentence.-In the matter of sentence the primary consideration, which generally weighs, with Courts is to see that the sentence imposed is such as effectively impresses on the accused that the life of crime does not pay. 62 Punj LR 156: 1960 Cr LJ 1234: AIR 1960 Punj 482. Adequacy of punishment.-In a case of rash or negligent driving, where a bicycle driver was crushed to death, a sentence of fine of Rs. 25 even though the accused pleads guilty is palpably inadequate and does not meet the ends of justice. 1959 MPLJ 482: AIR 1960 Madh Pra 105. “Pass sentence according to law”.-Only sentence which is within the competence of trying court can be passed by High Court. AIR 1966 SC 945 : 1966 Cr LJ 709. Supreme Court, when can interfere.-Unless discretion is improperly exercised, Supreme Court would not interfere. AIR 1960 SC 734. Section 21 of Food Adulteration Act is enabling section.-Section 21 of the Prevention of Food Adulteration Act, is not a disabling section; it simply authorises a Magistrate of the first class to award a sentence beyond the limits prescribed for him under Section 32 of Cr. P.O. 1960 All LJ 633 : 1960 Cr LJ 1378: AIR 1960 SC 905.
SECTION 32 TABLE:
(2) The Court of any Magistrate may pass any lawful sentence, combining any of the sentences which it is authorised by law to pass. [* * * * * ]
SECTION 33: Power of Magistrates to sentence to imprisonment in default of fine:
State Amendments Union Territories (except Chandigarh) In Section 33,- (i) in sub-section (1), in the marginal heading, for the word “Magistrates”, substitute the words “Judicial Magistrates” : (ii) in the opening paragraph, for the words “any Magistrate” substitute the words “any Judicial Magistrate”; (iii) in the proviso, in clause (i), for the words “by a Magistrate”, substitute the words “by a Judicial Magistrate.”-Act 19 of 1969, Section 3 and Schedule, item 15 (in Delhi on 2-10-1969). Note-The Act has not been brought into force so far and hence in the Union territory of Goa Daman and Diu (Separation of the Judicial and Executive Functions) Order, 1963, published in Goa Gazette, 28-12-1963, Sr. I, page 411, shall still be in force. In the Union territory of Chandigarh, created by Act 31 of 1966, Punjab Act XXV of 1964, on the subject, is in force in virtue of Section 89 of Act 21 of 1966.
(1) The Court of any Magistrate may award such terms of imprisonment in default of payment of fine as is authorised by law in case of such default: Proviso as to certain cases.-Provided that- (a) the term is not in excess of the Magistrate’s power under this Code; (b) in any case decided by a Magistrate where imprisonment has been awarded as part of the substantive sentence, the period of imprisonment awarded in default of payment of the fine shall not exceed one-fourth of the period of imprisonment which such Magistrate is competent to inflict as punishment for the offence otherwise than as imprisonment in default of payment of the fine.
(2) The imprisonment awarded under this section may be in addition to a substantive sentence of imprisonment for the maximum term awardable by the Magistrate under (Section 32).
SECTION 34: Higher powers of certain District Magistrates:
The Court of a Magistrate, specially empowered under (Section 30), may pass any sentence authorised by law, except a sentence of death or of [imprisonment for life] or imprisonment for a term exceeding seven years. State Amendments PUNJAB HARYANA AND CHANDIGARH.-In the marginal heading for the word “District” the word “Judicial” shall be substituted. (Punjab Act 25 of 1964.) UNION TERRITORIES (except Chandigarh).-same as that of Punjab. Note-This Act has not been enforced in other territories so far and hence previous provisions or orders prevailing in any territory would continue to be in force thereat. WEST BENGAL.-In its application to the State of West Bengal, in Section 34- (i) Same as that of Punjab, Haryana and Chandigarh. (ii) for the words “Court of a Magistrate”, substitute the words “Court of a Judicial Magistrate”-W. B. Act 8 of 1970, Section 3 and Schedule, Item 23.
SECTION 34A: Sentences which Courts and Magistrates may pass upon European British subjects:
[.] Rep. by the (S.3 of the Criminal Law (Removal of Racial Discriminations) Act, 1949).
SECTION 35: Sentence in cases of conviction of several offences at one trial:
WEST BENGAL.-In clause (b) of proviso to sub-section (2) of Section 35, for the words “a Magistrate”, occurring at two places, substitute the words “a Judicial Magistrate”.-W. B Act 8 of 1970].
(1) [When a person is convicted at one trial of two or more offences, the Court may, subject to the provisions of (S.71 of the Indian Penal Code, 1860),] sentence him, for such offences, to the several punishments prescribed therefor which such Court is competent to inflict; such punishments, when consisting of imprisonment [* * *], to commence the one after the expiration of the other in such order as the Court may direct, unless the Court directs that such punishments shall run concurrently.
(2) In the case of consecutive sentences, it shall not be necessary for the Court) by reason only of the aggregate punishment for the several offences being in excess of the punishment which it is competent to inflict on conviction of a single offence, to send the offender for trial before a higher Court: Provided as follows Maximum term of punishment.- (a) in no case shall such person be sentenced to imprisonment for a longer period than fourteen years ; (b) if the case is tried by a Magistrate (other than a Magistrate acting under (Section 34), the aggregate punishment shall not exceed twice the amount of punishment which he is, in the exercise of his ordinary jurisdiction, competent to inflict.
(3) For the purpose of appeal, [the aggregate of consecutive] sentences passed under this section in case of convictions for several offences at one trial shall be deemed to be a single sentence.
[* * * * * * *]
SECTION 36: Ordinary powers of Magistrates:
All District Magistrates Sub-divisional Magistrates and Magistrates of the first, second and third classes have the powers hereinafter respectively conferred upon them and specified in the third schedule. Such powers are called their “ordinary powers”. State Amendments GUJARAT.-Same as that of Maharashtra (1). MAHARASHTRA.-(1) For the words “District Magistrates, Sub-Divisional Magistrates and Magistrates of the first, second and third classes” substitute the words “Judicial and Executive Magistrates other than Special Judicial and Executive Magistrates”. (Bom Act 23 of 1951, Section 2 and Schedule and Mah A. L. 0. 1960.) (2) After the reorganization of the State of Bombay in 1956 the amendment made in Section 36 by the abovementioned Bombay Act is extended to the newly added areas of Hyderabad, Kutch and Saurashtra and the region of Vidarbha as from 1-9-1959 by Bombay Act XCVII of 1958. MYSORE.-Same as that of Maharashtra (1) with certain modification, add the word ‘special’ before ‘Executive Magistrate’ occurring for the second time-Mys Act XIII of 1965, Section 14. PUNJAB, HARYANA AND CHANDI GARH.-After the words “District Magistrate” the words “Chief Judicial Magistrates” shall be inserted’, and for words “Magistrates of the first, second and third classes” the words “Judicial and Executive Magistrates other than special Judicial Magistrate” shall be substituted. (Punjab Act 25 of 1964 and 31 of 1966. RAJASTHAN Abu Area.-Same as that of Maharashtra (1). UNION TERRITORIES (except Chandigarh).-In its application to the Union territories, in Section 36, after the words “District Magistrates” insert the words “Chief Judicial Magistrates” and for the words “Magistrates of the first, second and third classes”, substitute the words “Judicial and Executive Magistrates of the first and second classes”-Act 19 of 1969, S. 3 and Schedule. WEST BENGAL.-For Section 36 substitute the following, namely : 36. Ordinary powers of Magistrates-Judicial and Executive -All District Magistrates and Executive Magistrates of the first, second and third classes and all Sub-Divisional Judicial Magistrates and Judicial Magistrates of the first, second and third classes have powers hereinafter respectively conferred upon them and specified in the third schedule. Such powers are called their “ordinary powers”-W. B. Act 8 of 1970, Section 3 and Schedule.
SECTION 37: Additional powers conferrable on Magistrates:
In addition to his ordinary powers, any Sub-divisional Magistrate or any Magistrate of the first, second and third classes may be invested by the State Government or ‘” the District Magistrate, as the case may be, with any powers specified in the fourth schedule as powers with which he may be invested by the State Government or the District Magistrate. State Amendments MAHARASHTRA.-(1) For Section 37, the following shall be substituted, namely : “37. Additional powers comferrable on Magistrates.-(1) In addition to his ordinary powers,- (a) the State Government may invest any Magistrate with any of the powers as specified in the fourth schedule, and (b) A Sessions Judge may invest any Judicial Magistrate within his local jurisdiction with the powers specified in sub-part (b) of Part I of the fourth schedule. (2) (i) The power under clause (a) of sub-section (1) shall be exercised by the State Government in the case of Judicial Magistrates in consultation with the High Court. (ii) The power under clause (b) of sub-section (1) shall be exercised by the Sessions Judge with the approval of the High Court. (3) The State Government may authorize a District Magistrate to invest any Magistrate subordinate to him with any of the powers specified in Part II of the Fourth Schedule.” (Bombay Act 34 of 1953, Section 4.) (4) After the reorganization of the State of Bombay in 1956, S. 37 as substituted by the above-mentioned Bombay Act is extended to the newly added areas of Hyderabad Kutch and Saurashtra and the region of Vidarbha as from 1-9-1959 by Bombay Act XCVII of 1958. MYSORE.-For Section 37, substitute the following, namely: “37. Additional powers conferrable on Magistrates.-(1) In addition to his ordinary powers specified in the Fourth Schedule. (2) The State Government may authorise a District Magistrate to invest any Magistrate subordinate to him with any of the powers specified in Part II of the Fourth Schedule”- Mysore Act XIII of 1965, S. 15. PUNJAB, HARYANA AND CHANDIGARH.-For Section 37, the following shall be substituted, namely: “37. Additional powers conferrable on Magistrates-In addition to his ordinary powers,- (i) the High Court may invest any Judicial Magistrate with any of the powers as specified in Part I of the Fourth Schedule ; (ii) a Chief Judicial Magistrate may invest any other Judicial Magistrate within his local jurisdiction with the powers specified in Part I of the Fourth Schedule; (iii) the State Government may invest any Executive Magistrate with any of the powers as specified in Part II of the Fourth Schedule ; and (iv) a District Magistrate may invest any Executive Magistrate within his local jurisdiction with the powers specified in Part II of the Fourth Schedule.” (Punjab Act 25 of 1964 and Act 31 of 1966.) RAJASTHAN Abu Area.-Same as that of Maharashtra (1). UNION TERRITORIES (except Chandigarh).-For Sections 37 and 38, substitute the following, namely “37. Additional powers conferrable on Magistrates.-In addition to the ordinary powers,- (i) the State Government, in Consultation with the High Court, may invest any Judicial Magistrate with any of the powers specified in Part I-A of the Schedule IV; (ii) a Chief Judicial Magistrate may invest any Judicial Magistrate within his local jurisdiction with the powers specified in Part I-B of Schedule IV; (iii) the State Government may invest any Executive Magistrate with any of the powers specified in Part II-A of Schedule IV; and (iv) a District Magistrate may invest any Executive Magistrate within his local jurisdiction with the powers specified in Part II-B of Schedule IV. WEST BENGAL.-For Section 37, substitute the following : “37. Additional powers conferrable on Judicial and Executive Magistrates.-In addition to his ordinary powers- (i) any Judicial Magistrate may be invested by the State Government in consultation with the High Court with any of the powers specified in Part I-A of the Fourth Schedule as powers with which he may be invested by the State Government in consultation with the High Court; (ii) any Judicial Magistrate maybe invested by the Sessions Judge to whom he is subordinate with any of the powers specified in Part I-B of the Fourth Schedule as powers with which he may be invested by the Sessions Judge; (iii) any Executive Magistrate may be invested by the State Government with any of the powers specified in Part II-A of the Fourth Schedule as powers with which he may be invested by the State Government; (iv) any Executive Magistrate may be invested by the District Magistrate to whom he is subordinate with any of the powers specified in Part II-B of the Fourth Schedule as powers with which he may be invested by the District Magistrate.” -W. B. Act VIII of 1970, Section 3.
SECTION 38: control of District Magistrate’s investing power:
The power conferred on the District Magistrate by (Section 37) shall be exercised subject to the control of the State Government. State Amendments GnjARAT.-Same as that of Maharashtra (1)- MAHARASHTRA.-(1) for the words “conferred on” substitute the words ”delegated to.” (Bombay Act 23 of 1951, Section 2 and Schedule). (2) After the reorganization of the State of Bombay in 1956, the amendment made in Section 38 by the above-mentioned Bombay Act is extended to the newly added areas of Hyderabad, Kutch and Saurashtra and the region of Vidarbha as from 1-9-1959 by Bombay Act XCVII of 1958. MYSORE.-In Section 38, for the words “conferred on the District Magistrate by” substitute the words “delegated to the District Magistrate under”-(Mysore Act XIII of 1965, Section 16]. PUNJAB, HARYANA AND CHANDIGARH.-For Section 38, the following shall be substituted: “38. Exercise of powers under Section 37 by Chief Judicial Magistrate or District Magistrate to be subject to control of High Court or State Government.-The power conferred by clause (ii) of Section 37 shall be exercised subject to the control of the High Court and the power under clause (iv) of that section shall be exercised subject to the control of the State Government.” (Punjab Act 25 of 1964.) RAJASTHAN Abu Area- Same as that of Maharashtra (1)- (Central Act XXXVII of 1956, Section 119]. UNION TERRITORIES (except Chandigarh).-See under Section 37. WEST BENGAL.-For Section 38 substitute the following : “38. Control of the investing powers of the Sessions Judge by clause (b) of Section 37 shall be exercised subject to the control of the High Court and the power conferred on the District Magistrate by clause (d) of that section shall be exercised subject to the control of State Government.” (W. B. Act 8 of 1970, Section 3, and Schedule, item 27) S. 38-A (As Inserted by States) MAHARASTRA.-(l)After Section 38, the following section shall be inserted, namely: “38-A. Powers of Judicial Magistrates to be conferred in consultation with the High Court.__ Whenever under any provisions of this Code or of any law for the time being in force relating to any of the matters specified in Lists Hand III of the Seventh Schedule to the Constitution any judicial powers are to be conferred on Sessions Judge, an Additional or Assistant Sessions Judge, or a Judicial Magistrate or any such Magistrate is to be specially empowered to exercise such powers, the orders conferring such powers or empowering the exercise of such powers shall be made by the State Government in consultation with the High Court notwithstanding that such provision may not expressly provide for such consultation. Explanation.-For the purposes of this section, the question whether any power are judicial shall be decided by the State Government in consultation with the High Court and such decision shall be final”. (Bombay Act 23 of 1951, S. 2 and Schedule). (2) After the reorganization of the State of Bombay in 1956, Section 38-A as inserted by the above-mentioned Bombay Act is extended to the newly added areas of Hyderabd, Kutch and Saurashtra and the region of Vidarbha as from 1-9-1959 by Bombay Act XCVII of 1958. RAJASTHAN Abu Area.-Same as that of Maharashtra (1). WEST BENGAL.-In its application to the State of West Bengal, after Section 38, insert the following, namely: “38-A. Control of the investing powers of the Sessions Judge and the District Magistrate.– Whenever under any provision of this Code, or any other law for the time being in force, any judicial power is to be conferred by the State Government on a Sessions Judge or an Additional or Assistant Sessions Judge or a Chief Judicial Magistrate or any other Judicial Magistrate or any such Judicial Magistrate is to be specially empowered to exercise such powers, the order conferring such powers or empowering the exercise of such powers shall be made by the State Government in consultation with the High Court notwithstanding that such provision may not expressly so provide. Explanation.-For the purpose of this section, the question whether any powers are judicial shall be decided by the State Government in consultation with the High Court and such decision shall be final.”-W. B.,Act VIII of 1970, Section 3 and Schedule.
SECTION 39: Mode of conferring powers:
State Amendments PUNJAB, HARYANA AND CHANDIOARH.-For the words “the State Government”, occurring for the second time, the word “the State Government or the High Court, as the case may be,” shall be substituted. (Punjab Act 25 of 1964 and 31 of 1966). UNION TERRITORIES (except Chandigarh).-In Section 39, add the following proviso, namely: “Provided that in the case of Judicial Magistrates, the State Government shall confer such powers in consultation with the High Court”-Act 19 of 1969, Section 3 and Schedule.
(1) In conferring powers under this Code the State Government may, by order, empower persons specially by name or in virtue of their office) or classes of officials generally by their official titles.
(2) Every such order shall take effect from the date on which it is communicated to the person so empowered.
SECTION 40: Powers of officers appointed:
Whenever any person holding an office in the service of Government who has been invested with any powers under this Code throughout any local area is [appointed] to an equal or higher office of the same nature, within a like local area under the same State Government, he shall, unless the State Government otherwise directs, or has otherwise directed) [* * *] exercise the same powers in the local area [in which] he is so [appointed]. State Amendments PUNJAB, HARYANA AND CHANDIGARH.-For the words “the State Government’, occurring for the second time, the words “the State Government or the High Court, as the case may be,” shall be substituted. (Punjab Act 25 of 1964 and Act 31 of 1966.) UNION TERRITORIES (except Chandigarh).-In its application to the Union territories to Section 40, the following proviso shall be added: “Provided that in the case of Judicial Magistrates no such direction shall be issued except in consultation with the High Court.”-Act 19 of 1969, Section 3 and Schedule. WEST BENGAL.-In its application to the State of West Bengal, in Section 40, for the words “State Government otherwise direct”, substitute the words “State Government, in consultation with the High Court, where necessary, otherwise directs.”-W. B. Act VIII of 1970, Section 3 and Schedule.
SECTION 41: Powers may be cancelled:
State Amendments GUJARAT.-Same as that of Maharashtra. MAHARASHTRA : (1) (i) To sub-section (1) add the following proviso : “Provided that in the case of Judicial Magistrates the withdrawal of such powers shall be made in consultation with the High Court.” (Bombay Act 23 of 1951, Section 2 and Schedule) (ii) After sub-section (2) insert the following sub-section : “(3) any powers conferred by the Sessions Judge may be withdrawn by the Sessions Judge with the approval of the High Court.” (Bombay Act 71 of 1954, Section 3) (2) After the reorganization of the State of Bombay in 1956 the amendments made in Section 41 by the above mentioned Bombay Acts are extended to the newly added areas of Hyderabad, Kutch and Saurashtra and the region of Vidarbha as from 1-9-1959 by Bombay Act XCVII of 1958. PUNJAB, HARYANA AND CHANDIGARH (i) in sub-section (1), after the words ‘the State Government” the words “or the High Court, as the case may be,” shall be inserted, and (ii) for sub-section (2), the following sub-section shall be substituted, namely: “(2) Any powers conferred by the Chief Judicial Magistrate or the District Magistrate may be withdrawn by him.” (Punjab Act 25 of 1964.) RAJASTHAN Abu Area.-Same as that of Maharashtra (1). UNION TERRITORIES (except Chandigarh).-In its application to the Union Territories in Section 41,- (i) to sub-section (1), the following proviso shall be added, namely: “Provided that the State Government shall not withdraw any power conferred on the Judicial Magistrate except in consultation with the High Court.” ; (ii) for sub-section (2), the following sub-section shall be substituted, namely : “(2) Any powers conferred by the Chief Judicial Magistrate or the Magistrate may be withdrawn by him.”-Act 19 of 1969, Section 3 and Schedule, Item 21. BENGAL.-In its application to the State of West Bengal, in Section 41,- (i) after the words “State Government”, insert the words “or, where the conferment of power was in consultation with the High Court,”the State Government, in consultation with the High Court”, and (ii) for sub-section (2), substitute the following, namely : “(2) Any power conferred by the SessionsJudge or the District Magistrate may be withdrawn by the Sessions Judge, or the District Magistrate, as the case may be.” (W. B. Act VIII of 1970, Section 3 and Schedule.) Note Where a complaint has been lodged by the Consolidation Officer at the instance of the appellant under Section 195(1)(c) for an offence under Section 471, I.P.C. and the trial court convicted the accused; but on appeal he is acquitted, held that it was only open to the appellant to file an appeal. No other person could prefer an appeal. The appellant was at belt an informant and was not entitled to maintain an appeal. 1961 ALJ 557.
(1) The Stale Government may withdraw all or any of the powers conferred under this Code on any person by it or by any officer subordinate to it.
(2) Any powers conferred by the District Magistrate may be withdrawn by the District Magistrate.
PART 3: GENERAL PROVISIONS:
CHAPTER 4: OF AID AND INFORMATION TO THE MAGISTRATES, THE POLICE AND PERSONS MAKING ARRESTS:
SECTION 42: Public when to assist magistrates and police:
Every person is bound to assist a Magistrate or public officer reasonably demanding his aid, whether within or without the presidency-towns,-
(a) in the taking or preventing the escape of any other person whom such Magistrate or police-officer is authorised to arrest ;
(b) in the prevention or suppression of a breach of the peace, or in the prevention of any injury attempted to be committed to any railway, canal, telegraph or public property.
Section 43: Aid to person, other than police officer, executing warrant:
When a warrant is directed to a person other than a police officer, any other person may aid in the execution of such warrant, if the person to whom the warrant is directed be near at hand and acting in the execution of the warrant.
SECTION 44: Public to give information of certain offences:
(1) Every person, whether within or without the presidency towns, aware of the com- mission of, or of the intention of any other person to commit any offence punishable under any of the following sections of the Indian Penal Code, namely, 121,121-A, 122, 123, 124, 124-A, 125, 126, 130, 143, 144, 145,147, 148, 302, 303, 304, 382, 392, 393, 394, 395, 396, 397, 398, 399, 402, 435, 436, 449, 550, 456, 457, 458, 459 and 460, shall, in the absence of reasonable excuse, the burden of proving which shall lie upon the person so aware, forthwith give information to the nearest Magistrate or police officer of such commission or intention.
(2) For the purposes of this section the term “offence” includes any act committed at any place out of [India] which would constitute an offence if committed in [India].
SECTION 45: Village-headmen, accountants, landholders and others bound to report certain matters:
(1) Every village-headman, village accountant, village-watchman, village-police-officer, owner or occupier of land, and the agent of any such owner or occupier ^ [incharge of the management of that land] [and every member of a village panchayat, other than a judicial panchayat (where such panchayat, by whatever name called, is constituted under any law for the time being in force)], and every officer employed in the collection of revenue or rent of land on the part of the Government or the Court of Wards, shall forthwith communicate to the nearest Magistrate or to the officer in charge of the nearest police station whichever is the nearer, any, information which he may [possess] respecting- (a) the permanent or temporary residence of any notorious receiver or vendor of stolen property in any village of which he is headman, accountant, watchman or police-officer, or in which he owns or occupies land, or is agent) or collects revenue or rent; (b) the resort to any place within, or the passage through, such village of any person whom he knows, or reasonably suspects to be a thug, robber, escaped convict or proclaimed offender; (c) the commission of, or intention to commit, in or near such village any non-bailable offence or any offence punishable under (Sections 143), (S.144 of the Indian Penal Code, 1860), (S.145 of the Indian Penal Code, 1860), (S.147 of the Indian Penal Code, 1860) or (S.148 of the Indian Penal Code, 1860) ; (d) the occurrence in or near such village of any sudden or unnatural death or of any death under suspicious circumstances [or the discovery in or near such village of any corpse or part of a corpse, in circumstances which lead to a reasonable suspicion that such a death has occurred or the disappearance from such village of any person in circumstances which lead to a reasonable suspicion that a non-bailable offence has been committed in respect of such person]; (e) the commission of) or intention to commit, at any place out of [India] near such village any act which, if committed in [India], would be an offence punishable under any of the following sections of the (Indian Penal Code, 1860) , namely, [(S.231 of the Indian Penal Code, 1860), (S.232 of the Indian Penal Code, 1860),
(S.233 of the Indian Penal Code, 1860), (S.234 of the Indian Penal Code, 1860), (S.235 of the Indian Penal Code, 1860), (S.236 of the Indian Penal Code, 1860), (S.237 of the Indian Penal Code, 1860),
(S.238 of the Indian Penal Code, 1860), (S.302 of the Indian Penal Code, 1860),(S.304 of the Indian Penal Code, 1860),(S.382 of the Indian Penal Code, 1860),(S.932 of the Indian Penal Code, 1860),
(S.393 of the Indian Penal Code, 1860),(S.394 of the Indian Penal Code, 1860),(S.395 of the Indian Penal Code, 1860), (S.396 of the Indian Penal Code, 1860), (S.397 of the Indian Penal Code, 1860),
(S.398 of the Indian Penal Code, 1860), (S.399 of the Indian Penal Code, 1860), (S.402 of the Indian Penal Code, 1860), (S.435 of the Indian Penal Code, 1860), (S.436 of the Indian Penal Code, 1860),
(S.449 of the Indian Penal Code, 1860), (S.450 of the Indian Penal Code, 1860), (S.457 of the Indian Penal Code, 1860), (S.458 of the Indian Penal Code, 1860), (S.459 of the Indian Penal Code, 1860),
(S.460 of the Indian Penal Code, 1860), (S.489A of the Indian Penal Code, 1860), (S.489B of the Indian Penal Code, 1860), (S.89G of the Indian Penal Code, 1860) and (S.489D of the Indian Penal Code, 1860)] ;(f) any matter likely to affect the maintenance of order or the prevention of crime or the safety of person or property respecting which the District Magistrate) by general or special order made with the previous sanction of the State Government, has directed him to communicate information.
(2) In this section- (i) “village” includes village lands; and (ii) the expression “proclaimed offender” includes any person proclaimed as an offender by any Court or authority established or continued [by the Central Government outside India], in respect of any act which, if committed in [India] would be punishable under any of the following sections of the (Indian Penal Code, 1860), namely, (S. 302 of the Indian Penal Code, 1860)(S. 304 of the Indian Penal Code, 1860)
(S. 382 of the Indian Penal Code, 1860)(S. 932 of the Indian Penal Code, 1860) (S. 393 of the Indian Penal Code, 1860) (S. 394 of the Indian Penal Code, 1860) (S. 395 of the Indian Penal Code, 1860)
(S. 396 of the Indian Penal Code, 1860) (S. 397 of the Indian Penal Code, 1860) (S. 398 of the Indian Penal Code, 1860) (S. 399 of the Indian Penal Code, 1860) (S. 402 of the Indian Penal Code, 1860)
(S. 435 of the Indian Penal Code, 1860) (S. 536 of the Indian Penal Code, 1860) (S. 449 of the Indian Penal Code, 1860) (S. 450 of the Indian Penal Code, 1860) (S. 457 of the Indian Penal Code, 1860)
(S. 458 of the Indian Penal Code, 1860) (S. 459 of the Indian Penal Code, 1860) and (S. 460 of the Indian Penal Code, 1860) (3) Appointment of village-headmen by District Magistrate or sub-divisional Magistrate in certain cases for purposes of this section.-Subject to rules in this behalf to be made by the State Government, the District Magistrate [or Sub-divisional Magistrate may from time to time appoint one or more persons [with his or their consent] perform the duties of a village-headman under this section whether a villageheadman has or has not been appointed for that village under any other law].
CHAPTER 5: OF ARREST, ESCAPE AND RETAKING:
Section 46: Arrest how made:
State Amendment PUNJAB.-In any place in which all or any of the provisions of the Punjab Frontier Crimes Regulation, 1901 (3 of 1901) are for the time being in force, Section 46, Cr. P. C. shall be read as if the following sub-sections were added thereto, namely : “(4) But the section gives a right to cause the death of a person against whom those portions of the Punjab Frontier Crimes Regulation, 1901, which are not of general application may be enforced,- (a) if he is committing or attempting to commit an offence, or resisting or evading arrest, in such circumstances as to afford reasonable ground for believing that he intends to ue arms to effect his purpose; and (b) if a hue and cry has been raised against him of his having been concerned in any such offence as is specified in clause (a) or of his commenting or attempting to commit an offence or resisting or evading arrest, in such circumstances as are referred to in the said clause.” (Punjab Frontier Crimes Regulation, 1901, Section 38).
(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) Resisting endeavour to arrest.-If such person forcibly resists: the endeavour to arrest him, or attempts to evade the arrest, such policeofficer or other person may use all means necessary to effect the arrest,
(3) Nothing in this section gives right to cause the death of a person; who is not accused of an offence punishable with death or with [imprisonment for life].
SECTION 47: Search of place entered by person sought to be arrested:
If any person acting under a warrant of arrest, or any police-officer having authority to arrest, has reason to believe that the person to be arrested has entered into, or is within, any place, [any person residing] in, or being in charge of, such place shall, on demand of such person acting as aforesaid or such police-officer, allow him free ingress thereto, and afford all reasonable facilities for a search therein. Note Custody of villagers.-Where an accused has been held by villagers on suspicion and subsequently arrested by constable, but the command certificate was not produced in trial, it was held that the custody was not lawful. 1960 Cr LJ 267:AIR 1960 Ori 23.
SECTION 48: Procedure where ingress not obtainable:
If ingress to such place cannot be obtained under (Section 47), it shall be lawful in any case for a person acting under a warrant and in any case in which a warrant may issue, but cannot be obtained without affording the person to be arrested an opportunity of escape, for a police-officer to enter such place and search therein, and, in order to effect an entrance into such place to break open any outer or inner door or window of any house or place, whether that of the person to be arrested or of any other person, if after notification of his authority and, purpose, and demand of admittance duly made, he cannot otherwise obtain admittance: Breaking open zanana.-Provided that, if any such place is an apartment in the actual occupancy of a woman (not being the person to be arrested) who, according to custom, does not appear in public) such person or police-officer shall, before entering such apartment, give notice to such woman that she is at liberty to withdraw) and shall afford her every reasonable facility for withdrawing) and may then break open the apartment and enter it.
SECTION 49: Power to break open doors and window for purposes of liberation:
Any police-officer or other person authorised to make an arrest may break open any outer or inner door or window of any house or place, in order to liberate himself or any other person who) having lawfully entered for the purpose of making an arrest, is detained therein.
SECTION 50: No unnecessary restraint:
The person arrested shall not be subjected to more restraint than is necessary to prevent his escape.
SECTION 51: Search of arrested persons:
Whenever a person is arrested by a police-officer under a warrant which does hot provide for the taking of bail, or under a warrant which provides for the taking of bail but the person arrested cannot furnish bail, and whenever a person is arrested without warrant, or by a private person under a warrant, and cannot legally be admitted to bail, or is unable to furnish bail, the officer making the arrest or) when the arrest is made by a private person, the police-officer to whom he makes over the person arrested, may search such person) and place in safe custody all articles, other than necessary wearing apparel, found upon him. Note When a person is arrested under Section 54(1)(iv),Cr. P.C. on suspicion that he was carring stolen property and on a search of such person under Section 51 gold and silver is seized under Section 550, Cr. P. C., Section 523 provides for the procedure in that behalf. Further Regulation 165 of the U. P. Police Regulation provides adetailed procedure for dealing with the disposal of movable property of which the police takes possession. AIR 1965 SC 1039; (1965) 2 Cr LJ 144.
SECTION 52: Mode of searching women:
Whenever it is necessary to cause woman to be searched, the search shall be made by another woman with strict regard to decency. Notes Search of witness when found unreliable.-If a search witness is found to be undiable, his evidence can be ignored, and the evidence of police officers concerned may be lookd into. 1960 BLJR 511 : 1960 CrLJ 1950: AIR 1960 Part 582. Where the High Court accepted the evidence of search of a woman in the presence of men although according to law no woman can be searched except by another woman and having regard to the emphasis on decency under Sections 52 and 103, Gr. P.C that search cannot be done in the presence of men, there is no reason for Supreme Court to depart from the usual practice of accepting such findings. AIR 1962 SC 1 189.
SECTION 53: Power to seize offensive weapons:
The officer or other person making any arrest under this Code may take from the person arrested any offensive weapons which he has about his person, and shall deliver all weapons so taken to the Court or officer before which or whom the officer or person making the arrest is required by this Code to produce the person arrested. Note Search of a female.-Search of a female accused in the presence of witness and the Sub-Inspector is indecent. 24 Cut LT 445.
SECTION 54: When police may arrest without warrant:
Notes The special powers under Section 56 cannot override the general powers of a police officer of arrest without warrant in certain cases as provided in Section 54 of the Code. To take different view is to make the object of Section 54 nugatory. ILR 1959 Cut 645: 1960 Cr LJ 381: AIR 1960 Ori 33. The power of directing the arrest under Section 54(9) is drastic; hence it has to be exercised on substantial reasons. 1959 Cr LJ 600: AIR 1965 SC 1039: (1965)2 Cr LJ 144. See also Notes on Section 51.-1959 Jab LJ 227 : AIR 1959 Madh Pra 147.
(1) Any police officer may, without an order from a Magistrate and without a warrant, arrest- (1) any person 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 ; (2) any person having in his possession without lawful excuse, the burden of proving which excuse shall lie on such person, any implement of house-breaking ; (3) any person who has been proclaimed as an offender either under this Code or by order of the State Government; (4) any person 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; (5) any person who obstructs a police-officer while in the execution of his duty, or who has escaped, or attempts to escape, from lawful custody; (6) any person reasonably suspected of being a deserter from [the India] [Army, Navy or Air Force] [* * * ], [* * * ], [* * * ], [* * * ] ; (7) any person 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] ; * * * (8) any released convict committing a breach of any rule made under (Section 565), sub-section (3) ; [(9), any person for whose arrest a requisition 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) This section applies also to the police in the town *** of Calcutta * * *.
SECTION 55: Arrest of vagabonds, habitual robbers, etc:
(1) Any officer in charge of a police station may, in like manner, arrest or cause to be arrested- (a) any person found taking precautions to conceal his presence within the limits of such station, under circumstances which afford reason to believe that he is taking such precautions with a view to committing a cognizable offence; or (b) any person within the limits of such station who has no ostensible means of subsistence, or who cannot give a satisfactory account of himself; or (c) any person who is by repute an habitual robber, house-breaker or thief, or an habitual receiver of stolen property knowing it to be stolen, or who by repute habitually commits extortion or in order to the committing of extortion habitually puts or attempts to put persons in fear of injury.
(2) This section applies also to the police in the town * of Calcutta * *
SECTION 56: Procedure when police-officer deputes subordinate to arrest without warrant:
Notes Powers of a police-officer.-Where a police-officer was deputed for making a preliminary investigation against a particular person, he can act under Section 54 and arrest that person without an order in writing to that effect under Section 56. 1960 Cr LJ 381: AIR 1960 Ori 33. To arrest without warrant a fairly known individual long after the taking place of the incident calls for explanation. 1959 All LJ 50: 1959 Cr LJ 685 : AIR 1959 All 384.
(1) When any officer-in-charge of a police-station [or any police-officer making an investigation, under Chapter XIV] requires any officer subordinate to him to arrest without a warrant (otherwise than in his presence) any person who may lawfully be arrested without a warrant, he shall deliver to the officer required to make the arrest an order in writing, specifying the person to be arrested and the offence or other cause for which the arrest is to be made. [The officer so required shall, before making the arrest, notify to the person to be arrested the substance of the order and, if so required by such person, shall show him the order.]
(2) This section applies also to the police in the town * of Calcutta * * *
SECTION 57: Refusal to give name and residence:
State Amendments GUJARAT, MAHARASHTRA, MYSORE, AND RAJASTHAN.-In sub-section (2) for the words “before a Magistrate if so required” substitute the words “before a Magistrate having jurisdiction if so required”. PUNJAB, HARYANA AND CHANDIGARH.-In sub-section (2) for the wrods “a Magistrate” the words “a Judicial Magistrate having jurisdiction”, shall be substituted. (Punjab Act 25 of 1964 and Act 31 of 1966). UNION TERRITORIES (except Chandigarh).-In its application to the Union territories, in sub-sections (2) and (3), for words (‘a Magistrate’ and ‘Magistrate’, substitute the words respectively ‘a Judicial Magistrate’ and ‘Judicial Magistrate’-Act 19 of 1969, Section 3 and Sch., Item 22 (in Delhi on 2-10-1969). WEST BENGAL.-For the word ‘Magistrate’ in sub-sections (2) and (3), substitute the words ‘Judicial Magistrate’.-West Bengal Act 80 of 1970, Section 3 and Schedule, Item 31.
(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].
(3) Should the true name and residence of such person not 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.
SECTION 58: Pursuit of offenders into other jurisdictions:
A police-officer may, for the purpose of arresting without warrant any person whom he is authorised to arrest under this Chapter, pursue such person into any place in [India].
SECTION 59: Arrest by private persons and procedure on such arrest:
(1) Any private person may arrest any person who in his view commits a non-bailable and cognizable offence, or any proclaimed offender, and without unnecessary delay, shall make 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.]
(2) If there is reason to believe that such person comes under the provisions of (Section 54), 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 57). If there is no sufficient reason to believe that he has committed any offence, he shall be at once released.
SECTION 60: 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.
SECTION 61: Person arrested not to be detained more than twenty-four hours:
No police-officer shall detain in custody a person arrested without warrant for a longer period than under all the circumstances of the case is reasonable, and such period shall not, in the absence of a special order of a Magistrate under, exceed twenty-four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate’s Court. Note Duty of the Magistrate.-The Magistrate has to apply judicial mind to see whether the arrest of the person produced before him is legal. 1959 Cr LJ 685; AIR 1959 All 384.
SECTION 62: Police to report apprehensions:
Officers in-charge of police stations shall report to the District Magistrate, or, if he so directs, to the Sub divisional Magistrate) the cases of all persons arrested without warrant, within the limits of their respective stations, whether such persons have been admitted to bail or otherwise. State Amendment GUJARAT City of Ahmedabad-Sections 14(3) and 15 of the Ahmedabad City Courts Act, 1961 (Guj. XIX of 1961), run as follows: “14(3). The Chief Magistrate and any other Magistrate appointed under subsection (1) shall have and exercise within the limits of City of Ahmedabad all the powers and jurisdiction of the Chief Presidency Magistrate and a Presidency Magistrate respectively under the Criminal Procedure Code and all other laws for the time being in force and the provisions of the Code and such laws shall apply to such Chief Magistrate and Presidency Magistrate and shall be construed accordingly.” “15. In the Criminal Procedure Code for the words “Presidency-town” and the words “Greater Bombay” wherever they occur, the words “City of Ahmedabad” shall be substituted unless the context otherwise requires.”
SECTION 63: Discharge of person apprehended:
No person who has been arrested by a police-officer shall be discharged except on his own bond or on bail, or under the special order of a Magistrate. State Amendments GUJARAT.-Same ai that of Maharashtra (1) MAHARASHTRA.-(1) In its application to the pre-reorganization State of Bombay, in Section 63 is the words “special order of a Magistrate”, substitute the words “special order of a Magistrate having jurisdiction.”- Bom Act XXIII of 1951, S. 2 and Sch. (1-7-1953). (2) After the reorganization of the State of Bombay in 1956, the amendment made in Section 63 by the abovementioned Bombay Act is extended to the newly added areas of Hyderabad, Kutch and Saurashtra and the region of Vidarbha as from 1-9-1959 by Bom Act XCVIII of 1958. MYSORE.-Same as that of Maharashtra (1) PUNJAB HARYANA AND CHANDIGARH.-In its application to the States of Punjab and Haryana and the Union Territory of Chandigarh, in Section 63 for the word “Magistrate”, substitute the words “Magistrate having jurisdiction.”-Punj. Act XXV of 1964, S. 2 and Schedule, Part. I, Item (22) (2-10-1964) and Act 31 of 1966, Ss. 29 and 89 (1-11-1966). RAJASTHAN-Abu ariaSame as that of Maharashtra (1) UNION TERRITORIES (except Chandigarh) Same as that of Punjab. WEST BENGAL.-In S. 63, after the words “of a Magistrate”, add the words ‘having jurisdiction’.-W. B. Act 8 of 1970, S. 3 and Sch., Item 33. Note Scope.-Section 63 does not by itself confer any power on any Magistrate to release a person on bail. 1959 Cr LJ 600 : 1959 Jab LJ 227: AIR 1959 Madh Pra 147.
SECTION 64: Offence committed in Magistrate’s presence:
When any offence is committed in the presence of a Magistrate within the local limits of his 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.
SECTION 65: Arrest by or in presence of Magistrate:
Any Magistrate may at any time arrest or direct the arrest, in his presence, within the local limits of his jurisdiction) of any person of whose arrest he is competent at the time and in the circumstances to issue a warrant.
SECTION 66: Power, on escape, to pursue and retake:
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].
SECTION 67: Provisions of Sections 47, 48 and 49 to apply to arrests under Section 66:
The provisions of (section 47), Section 48) and (Section 49) shall apply to arrests under (Section 66), although the person making any such arrest is not acting under a warrant and is not a police-officer having authority to arrest.
CHAPTER 6: OF PROCESSES TO COMPEL APPEARANCE:
SECTION 68: Form of summons:
State Amendment MAHARASHTRA.-In its application to the State of Maharashtra in sub-section (3) the word “town” was substituted for the words “towns” and the words “and Bombay” were deleted. (Bombay Act No. 20 of 1956). Notes Service of notice under Section 488 effected through process server of a Civil Court.-Where notice of the application under Section 488, Cr. P. C. was served through process server of Civil Court, it was an irregularity not curable by Section 537, Cr. P. C. 1960 Mad LJ (Cr) 149: 1960 Cr LJ 1107 : AIR 1960 Mys 198. Nature of notice under Section 488.-Notice to respondent contemplated by Section 488, Cr. P. C., is not something different from the summons provided in Section 6 of Cr. P. C. (1960) MPLJ (Cr) 149.
(1) Every summons issued by a Court under this Code shall be in writing, in duplicate signed and sealed by the presiding officer of such Court, or by such other officer as the High Court may, from time to time, by rule, direct.
Summons by whom served.-(2) Such summons shall be served by a police-officer, or subject to such rules as the State Government may prescribe in this behalf) by an officer of the Court issuing it or other public servant.
(3) This section applies also to the police in the towns of Calcutta and Bombay.
SECTION 69: Summons how served:
Note Mere knowledge is not sufficient service.-Mere knowledge on the part of the Government servant that summons was received in his office is not sufficient service on him. (1951) Mad LJ (Cr) 168: 1959 Cr LJ 483 : AIR 1959 Mad 165.
(1) 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.
Signature of receipt for summons-(2) 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.
(3) Service of a summons on an incorporated company or other body corporate may be effected by serving it on the secretary, local manager or other principal officer of the corporation or by registered post letter addressed to the chief officer of the corporation in [India]. In such case the service shall be deemed to have been effected when the letter would arrive in ordinary course of post.
SECTION 70: Service when person 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 family, or, in a presidency-town, with his servant 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. State Amendment GUJARAT.-In its application to the State of Gujarat for the words “presidency-town”, substitute the words “City of Ahmedabad.” [Guj Act XIX of 1961, S.15].
SECTION 71: Procedure when service cannot be effected as before provided:
If service in the manner mentioned in (section 69) and (70) cannot by the exercise of due diligence be effected, 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 summons shall be deemed to have been duly served.
SECTION 72: Service on servant of the Government or of Railway Company:
(1) Where the person summoned is in the active service of the Government or of a Railway Company, the Court issuing the summons shall ordinarily send 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 manner provided by (section 69), 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.
SECTION 73: Service of summons outside local limits:
When a Court desires that a summons issued by it shall be served at any place outside the ; local limits of its jurisdiction, it shall ordinarily send such summons in duplicate to a Magistrate within the local limits of whose jurisdiction the person summoned resides or is, to be there served.
SECTION 74: Proof of service in such cases, and when serving officer not present:
(1) When a summons issued by a Court is served outside the local limits of its 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 manner provided by (Section 69) or (Section 70) 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.
(2) The affidavit mentioned in this section may be attached to the duplicate of the summons and returned to the Court.
SECTION 75: Form of warrant of arrest:
State Amendment WEST BENGAL.-In its application to the State of West Bengal, in Section 75( 1), for the word ‘Magistrate’, substitute the words “Judicial Magistrate”.-[President Act III of 1968 Section 3 and Schedule]. Note Executive, judicial functions contrasted.-The execution of an order made by Court may be executive function. But if an obstruction is caused in its execution, the question whether it may be lawful or not can only be determined judicially, 62 Bom LR 383 AIR 1960 Bom 502 (FB).
(1) Every warrant of arrest issued by a Court under this Code shall be in writing) signed by the presiding officer, or in the case of a Bench of Magistrates, by any member of such Bench; and shall bear the seal of the Court.
Continuance of warrant of arrest.-(2) Every such warrant shall remain in force until it is cancelled by the Court which issued it, or until it is executed.
SECTION 76: Court may direct security to be taken:
(1) Any Court issuing a warrant for the arrest of any person may in its discretion direct by endorsement on the warrant that, if such person executes a bond with sufficieint sureties for his attendance before the Court at a specified time and thereafter until otherwise directed by the Court, the officer to whom the warrant is directed shall take such security and shall release such person from custody.
(2) The endorsement shall state- (a) the number of sureties; (b) the amount in which they and the person for whose arrest the warrant is issued, are to be respectively bound; and (c) the time at which he is to attend before the Court.
Recognizance to be forwarded.-(3) Whenever security is taken under this section the officer to whom the warrant is directed shall forward the bond to the Court.
SECTION 77: Warrants to whom directed:
(1) A warrant of arrest shall ordinarily be directed to one or more police-officers, and, when issued by a Presidency Magistrate, shall always be so directed; but any other Cour issuing such a warrant may, if its immediate execution is necessary and not police-officer is immediately available, direct it to any other person or persons; and such person or persons shall execute the same.
Warrants to several persons.-(2) When a warrant is directed to more officers or persons than one, it may be executed by all, or by any one or more of them.
SECTION 78: Warrant may be directed to landholders, etc:
State Amendments GAJURAT.-Same a that of Maharashtra (1) MAHARASHTRA(1).-In sub-section (1) after the words “or Sub-divisional Magistrate” insert the words “or Magistrate of the first class” (Bom Act XXIII of 1951, (Section 2 and Schedule). (2) After the recoganization of the State of Bombay in 1956, the amendment made in Section 78 by the abovementioned Bombay Act is extended to the newly added areas of Hyderabad, Kutch and Saurashtra and the region of Vidarbha as from 1-9-1959, by Bombay Act XCVII of 1958. MYSORE.-Same as that of Maharashtra (1) PUNJAB HARYANA AND CHANDIGARH.-For sub-section (1) the following shall be substituted, namely: “(1) A District Magistrate or a Chief Judicial Magistrate or a Sub-divisional Magistrate or any other Judicial Magistrate of the first class may direct a warrant to any landholder, farmer or manager of land within the area of his jurisdictian for the arrest of any escaped convict, proclaimed offender or person who has been accused of a non-bailable offence, and who has eluded pursuit.” (Punjab Act 25 of 1964, and Act 31 of 1966). RAJASTHAN-Abu Area.-Same as that of Maharashtra (1) UNION TERRITORIES (except Chandigarh) : In its application to the Union Territories, for sub-section (1) of Section 78, substitute the following, namely: “(1) A District Magistrate or a Chief Judicial Magistrate or any other Judicial Magistrate of the first class or a Sub-divisional Magistrate may direct a warrant to any land-holder, framer or manager of land within the area of his jurisdiction for the arrest of any escape convict, proclaimed offender or person who has been accused of non-bailable offence and who has eluded pursuit.”-[Act 19 of 1966, S. 3 and Schedule,]. WEST BENGAL.-In its application to the State of West Bengal, in Section 78(1), for the words “or Sub-divisional Magistrate”, substitute the words “Sub-divisional Executive Magistrate or Sub-divisional Judicial Magistrate.” [W. B. Act VIII of 1970, S. 3 and Schedule].
(1) A District Magistrate or Sub-divisional Magistrate may direct a warrant to any landholder, farmer or manager of land within his district or sub-division for the arrest of any escaped convict, proclaimed offender or person who has been accused of a non-bailable offence, and who has eluded pursuit.
(2) Such landholder, farmer or manager shall acknowledge in writing the receipt of the warrant, and shall execute it if the person for whose arrest lit was issued, is in, or enters on, his land or farm, or the land under his charge.
(3) When the person against whom such warrant is issued is arrested, he shall be made over with the warrant to the nearest police-officer, who shall cause him to be taken before a Magistrate having jurisdiction in the case, unless security is taken under (Section 76).
SECTION 79: Warrant directed to police-officer:
A warrant directed to any police-officer may also be executed by any other police-officer whose name is endorsed upon the warrant by the officer to whom it is directed or endorsed. Note Competency of S. P.-Superintendent of Police appointed as principal of training school is competent to execute order of detention. 1959 Cr L J 709 :AI R 1959 J and K 56.
SECTION 80: Notification of substance of warrant:
The police-officer or other person executing a warrant of arrest shall notify the substance thereof to the person to be arrested, and, if so required, shall show him the warrant.
SECTION 81: Person arrested to be brought before Court without delay:
The police-officer or other person executing a warrant of arrest shall (subject to the provisions of (Section 76) as to security), without unnecessary delay bring the person arrested before the Court before which he is required by law to produce such person.
SECTION 82: Where warrant may be executed:
A warrant of arrest may be executed at any place in [India].
SECTION 83: Warrant forwarded for execution outside jurisdiction:
State Amendments GUJARAT.-Same as that of Maharashtra (1). MAHARASHTRA.-In sub-section (1) the words “in a presidency town” were omitted (Bombay Act 56 of 1959). MAHARASHTRA : (i) In its application to the State of Maharashtra, in sub-section (1) of Section 83, for the words “District Superintendent of Police” substitute the words “Superintendent of Police”; and in sub-section (2), for the words “District Superintendent”, substitute the word “Superintenent”.-[Maha Act XLVI of 1962 Section 3 of Schedule]. (ii) Section 83(2), so far as it applied to the police in town of Bombay, was repealed by the City of Bombay Police Act, 1902 (Born Act XXII of 1951), Section 167(1) and Schedule 1. By Section 167(3), read with Schedule III of the Bombay Police Act, 1951, Section 1 (2) of the Code of Criminal Procedure, 1898, is so amended as to make the Code applicable to the Town of Bombay. The Bombay Police Act, 1951, which applies to the whole State of Bombay, has come into force on 1-8-1951. (iii) Cities of Bombay, Nagpur and Poona have Commissioners of Police.
(1) When a warrant is to be executed outside the local limits of the jurisdiction of the Court issuing the same, such Court may, instead of directing such warrant to a police-officer, forward the same by post or otherwise to any Magistrate or District Superintendent of Police or the Commissioner of Police in a presidency-town within the local limits of whose jurisdiction it is to be executed.
(2) The Magistrate or District Superintendent or Commissioner to whom such warrant is so forwarded shall endorse his name thereon, and, if practicable, cause it to be executed in manner hereinbefore provided within the local limits of his jurisdiction.
SECTION 84: Warrant directed to police officer for execution outside jurisdiction:
State Amendment MAHARASHTRA.-In its application to the City of Bombay, Section 84 was repealed by The City of Bombay Police Act, 1902 (Bom Act VI of 1902), Section 2 (l)and Schedule A. The said Bombay Act, however, has now been repealed by the Bombay Police Act, 1951 (Bom Act XXII of 1951), Section 167(1) and Schedule 1. By Section 167(3) read with Schedule I II, this Act of 1951 has so amended Section 1(2) of the Code of Criminal Procedure, 1898, as to make the Code applicable to the City of Bombay. The Police Act, 1951, has been applied to the whole State from 1-8-1951.
(1) When a warrant directed to a police-officer is to be executed beyond the local limits of the jurisdiction of the Court issuing the same, he shall ordinarily take it for endorsement either to a Magistrate or to a police-officer not below the rank of an officer-in-charge of a station within the local limits of whose jurisdiction the warrant is to be executed.
(2) Such Magistrate or police-officer shall endorse his name thereon, and such endorsement shall be sufficient authority to the police-officer to whom the warrant is directed to execute the same within such limits, and the local police shall, if so required, assist such officer in executing such warrant.
(3) Whenever there is reason to believe that the delay occasioned by obtaining the endorsement of the Magistrate or police-officer within the local limits of whose jurisdiction the warrant is to be executed, will prevent such execution, the police-officer to whom it is directed may execute the same Without such endorsement in any place beyond the local limits of the jurisdiction of the Court which issued it.
(4) This section applies also to the police in the town of Calcutta * * * .
SECTION 85: Procedure on arrest of person against whom warrant issued:
When a warrant of arrest is executed outside the district in which it was issued, the person arrested shall, unless the Court which issued the warrant is within twenty miles of the place of arrest or is nearer than the Magistrate or District Superintendent of Police or Commissioner of Pice in a presidency-town within the local limits of whose jurisdiction the arrest was made, or unless security is taken under (Section 76), be taken before such Magistrate to Commissioner or District Superintendent. State Amendments GUJARAT.-Same as that of Maharashtra (i). MAHARASHTRA : (i) In its application to the State of Maharashtra, in Section 85, delete the the words “in a presidency-town”.-Bom. Act LVI of 1959, Section 3 and Schedule. (ii) In its application to the State of Maharashtra, in Section 85, for the words “District Superintendent of Police”, substitute the words “Superintendent of Police” and for the words “district Superintendent” substitute the word “Superintendent”.-Maharashtra Act XLVI of 1962, Section 3 and Schedule (1-7-1964). (iii) Section 85, so far as it applied to the Town of Bombay, was repealed by the City of Bombay Police Act, 1902 (Bom. Act IV of 1902), which Act has been repealed by the Bombay Police Act, 1951 (Bombay Act XXII of 1951), Section 167(1) and Schedule 1. By Section 167(3) read with Schedule III of the said Act, which applies to the whole State of Bombay from 1-8-1951, Section 1 (2) of the Code of Criminal Procedure, 1898, is so amended as to make the Code applicable to the Town of Bombay. (iv) Commissioners of Police have been appointed for the Cities of Nagpur and Poona as well now.
SECTION 86: Procedure by Magistrate before whom person arrested is brought:
State Amendment MAHARASHTRA : (i) In its application to the State of Maharashtra, in sub-section (1) of Section 86, for the words “District Superintendent”, wherever they occur, substitute the words “Superintendent”.-Maharashtra Act XLVI of 1962, Section 3 and Schedule. (ii) Section 86, so far as it applied to the Town of Bombay, was repealed by the City of Bombay Police Act, 1902 (Bombay Act IV of 1902), which Act is subsequently repealed by the Bombay Police Act, 1951 (Bombay Act XXII of 1951), Section 167(1) and Schedule 1. By Section 167(3), read with Schedule III of the Bombay Police Act, 1951 (which applies to the whole State of Bombay from 1-8-1951), Section 1(2) of the Code of Criminal Procedure, 1898, is 80 amended as to make the Code applicable to the Town of Bombay.
(1) Such Magistrate or District Superintendent or Commissioner shall, if the person arrested appears to be the person intended by the Court which issued the warrant, direct his removal in custody to such Court: Provided that, if the offence is bailable, and such person is ready and willing to give bail to the satisfaction of such Magistrate, District Superintendent or Commissioner, or a direction has been endorsed under (Section 76), on the warrant and such person is ready and willing to give the security required by such direction, the Magistrate, District Superintendent or Commissioner shall take such bail or security, as the case may be, and forward the bond to the Court which issued the warrant.
(2) Nothing in this section shall be deemed to prevent a police-officer from taking security under (Section 76).
SECTION 87: Proclamation for person absconding:
Note When the accused directed the issue of a non-bailable warrant of arrest against the accused and also directed the bailors to be called upon to show cause why the bond should not be forfeited it was not necessary for him to issue processes under Sections 87 and 88 on the same date. He should have wanted until the execution report of the warrant of arrest was received. Although the accused acted in a manner which was calculated to irritate the Magistrate, there might be a reasonable apprehension in the mind as not get justice from him. In the circumstances justice would be better served by transferring the case to some other Magistrate. 1960 Or LJ 505 : AIR 1963 Pat 160.
(1) If any Court has reason to believe (whether after taking evidence or not), that any person against whom a warrant has been issued by it, has absconded or is concealing himself so that such warrant cannot be executed, such Court may publish a written proclamation requiring him to appear at a specified place and at a specified time not less than thirty days from the date of publishing such proclamation.
(2) The proclamation shall be published as follows- (a) it shall be publicly read in some conspicuous place of the town or village in which such person ordinarily resides; (b) it shall be affixed to some conspicuous part of the house or homestead in which such person ordinarily resides or to some conspicuous place of such town or village; and (c) a copy thereof shall be affixed to some conspicuous part of the Court-house.
(3) A statement in writing by the Court issuing the proclamation to the effect that the proclamation was duly published on a specified day shall be conclusive evidence that the requirements of this section have been complied with, and that the proclamation was published on such day.
Section 88: Attachment of property of person absconding:
State Amendments GUJARAT AND RAJASTHAN.-Same as that of Maharashtra. MAHARASHTRA.-(1) In sub-section (6-C) proviso, delete the words beginning with “of the first” and ending with “may be” (Bom Act XXIII of 1951, Section 2 and Schedule). MYSORE.-(1) In 6(i) omit the words “of the first or second class.” (Mys Act 13 of 1965). (2) After the reorganisation of the State of Bombay, in 1956 the amendment in Section 88(6-0 by the Bom Act is extended to the newly added areas of Hyderabad, Kutch and Saurastra and the region of Vidarbha w. e. f. 1-9-1959 (Bom Act 97 of 1958). PUNJAB, HARYANA AND CHANDIGARH. (a) in sub-section (2), after the words “District Magistrate”, the words “or Chief Judical Magistrate” shall be inserted, (b) in sub-section (6-B), after the words “District Magistrate”, the words “of Chief Judicial Magistrate” shall be inserted-, and (c) for the proviso to sub-section (6-D), the following proviso shall be substituted namely: “Provided that if it is preferred or made in the Court of a District Magistrate, or any other Executive Magistrate, such Magistrate shall refer it to the Chief Judicial Magistrate who shall make it over for disposal to any Judicial Magistrate of the first class subordinate to him, and such Judicial Magistrate shall have all the powers and jurisdiction in respect of such claim or objection as if the order of attachment had been issued by such Judicial Magistrate and the claim or objection had been originally preferred or made before him.” (Punjab Act 25 of 1964, Act 31 of 1966). UNION TERRITORIES.-(except Chandigarh) : (a) in sub-sections (2) and (6-B), after the words “District Magistrate”, insert the words “or Chief Judicial Magistrate” ; and (b) for the proviso to sub-section (6-C) substitute the following, namely : “Provided that if it is preferred or made in the Court of a District Magistrate or Chief Judicial Magistrate, he may make it over for disposal to any Magistrate subordinate to him, and such Magistrate shall have all the powers and jurisdiction in respect of such claim or objection as if the order of attachment had been issued by such Magistrate and the claim or objection had been originally preferred or made before him.” Act 19 of 1969, Section 3 and Schedule, Item 25 (in Delhi, on 2-10-1969). WEST BENGAL. (a) in sub-sections (2) and (6-B), after the words “District Magistrate”, insert the words “Sub-Divisional Magistrate” ; and (b) for the words ‘within whose district’ in sub-section (2) substitute the words ‘within whose jurisdiction’ ; and (c) for the proviso to sub-section (6-C), substitute the following, namely : “Provided that if it is preferred or made in the Court of a District Magistrate or a Sub-Divisional Judicial Magistrate or a Chief Presidency Magistrate, such District Magistrate, Sub-Divisional Judicial Magistrate or Chief Presidency Magistrate may make it over for disposal to any Magistrate subordinate to him, and such Magistrate shall have all the powers and jurisdiction in respect of such claim or objection as if the order of attachment had been issued by such Magistrate and the claim or objection had been originally preferred or made before him.” W.B. Act 8 of 1970, Section 3 and Sch., Item 35.
(1) The Court issuing proclamation under (Section 87) may at any time order the attachment of any property, movable or immovable, or both) belonging to the proclaimed person.
(2) Such order shall authorise the attachment of any property belonging to such person within the district in which it is made ; and it shall authorise the attachment of any property belonging to such person without such district when endorsed by the District Magistrate or Chief Presidency Magistrate within whose district such property is situate.
(3) If the property ordered to be attached is a debt or other movable property, the attachment under this section shall be made- (a) by seizure; or (b) by the appointment of a receiver; or (c) by an order in writing prohibiting the delivery of such property to the proclaimed person or to any one on his behalf; or (d) by all or any -two of such methods, as the Court thinks fit.
(4) If the property ordered to be attached is immovable, the attachment under this section shall, in the case of land paying revenue to [the State Government], be made through the Collector of the district in which the land is situate, and in all other cases- (e) by taking possession; or (f) by the appointment of a receiver; or (g) by an order in writing prohibiting the payment of rent or delivery of property to the proclaimed person of or any one on his be- half; or (h) by all or any two of such methods, as the Court thinks fit.
(5) If the property ordered to be attached consists of live-stock or is of a perishable nature, the Court may, if it thinks it expedient, order immediate, sale thereof, and in such case the proceeds of the sale shall abide by the order of the Court.
(6) The powers, duties and liabilities of a receiver appointed under this section shall be the same as those of a receiver appointed under Chapter XXXVI of the Code of Civil Procedure.
[(6-A) If any claim is preferred to, or objection made to the attachment of, any property attached under this section within six months from the date of such attachment, by any person other than the proclaimed person, on the ground that the claimant or objector has an interest in such property, and that such interest is not liable to attachment under this section, the claim or objection shall be inquired into, and may be allowed or disallowed in whole or in part: Provided that any claim preferred or objection made within the period allowed by this sub-section may, in the event of the death of the claimant or objector, be continued by his legal representative.
(6-B) Claims or objections under sub-section (6-A) may be preferred or made in the Court by which the order of attachment is issued or, if the claim or objection is in respect of property attached under an order endorsed by a District Magistrate or Chief Presidency Magistrate in accordance with the provisions of sub-section (2), in the Court of such Magistrate.
(6-C) Every such claim or objection shall be inquired into by the Court in which it is preferred or made: Provided that, if it is preferred or made in the Court of a District Magistrate or Chief Presidency Magistrate, such Magistrate may make it over for disposal to any Magistrate of the first or second class or to any Presidency Magistrate, as the case may be, subordinate to him.
(6-D) Any person whose claim or objection has been disallowed in whole or in part by an order under sub-section (6-A) may, within a period of one year from the date of such order) institute a suit to establish the right which he claims in respect of the property in dispute ; but subject to the result of such suit) if any, the order shall be conclusive.
(6-E) If the proclaimed person appears within the time specified in the proclamation, the Court shall make an order releasing the property from the attachment.]
(7) If the proclaimed person does not appear within the time specified in the proclamation, the property under attachment shall be at the disposal of [the State Government] ; but it shall not be sold until the expiration of six months from the date of the attachment *[and until any claim preferred or objection made under sub-section (6-A) has been disposed of under that sub-section], unless it is subject to speedy and natural decay, or the Court considers that the sale would be for the benefit of the owner, in either of which cases the Court may cause it to be sold whenever it thinks fit.
SECTION 89: Restoration of attached property:
If, within two years from the date of the attachment, any person whose property is or has been at the disposal of [the State Government], under sub-section (7) of (Section 88), appears voluntarily or is apprehended and brought before the Court by whose order the property was attached, or the Court to which such Court is subordinate, and proves to the satisfaction of such Court that he did not abscond or conceal himself for the purpose of avoiding execution of the warrant, and that he had not such notice of the proclamation as to enable him to attend within the time specified therein, such property, or, if the same has been sold, the nett proceeds of the sale, or, if part only thereof has been sold, the nett proceeds of the sale and the residue of the property, shall, after satisfying thereout all costs incurred in consequence of the attachment, be delivered to him.
SECTION 90: Issue of warrant in lieu of, or in addition to, summons:
A Court may, in any case in which it is empowered by this Code to issue a summons for the appearance of any person other than a juror * * *, issue, after recording its reasons in writing, a warrant for his arrest-
(a) if, either before the issue of such summons, or after the issue of the same but before the time fixed for his appearance, the Court sees reason to believe that he has absconded or will not obey the summons; or
(b) if at such time he fails to appear and the summons is proved to have been duly served in time to admit of his appearing in accordance therewith and no reasonable excuse is offered for such failure.
SECTION 91: Power to take bond for appearance:
When any person, for whose appearance or arrest the officer presiding in any Court is empowered to issue a summons or warrant, is present, in such Court, such officer may require such person to execute a bond, with or without sureties) for his appearance in such Court.
SECTION 92: Arrest on breach of bond for appearance:
When any person who is bound by any bond taken under this Code to appear before a Court, does not so appear, the officer presiding in such Court may issue a warrant directing that such person be arrested and produced before him.
SECTION 93: Provisions of this chapter generally applicable to summonses and warrants of arrest:
The provisions contained in this chapter relating to a summons and warrant, and their issue, service and execution, shall, so far as may be, apply to every summons and every warrant of arrest issued under this Code.
SECTION 93A: Special rules regarding processes in certain cases:
[.] Rep. by the Code of Criminal Procedure (Amendment)Act, 1958 (26 of 1958), Section 2.
CHAPTER 7: OF PROCESSES TO COMPEL THE PRODUCTION OF DOCUMENTS AND OTHER MOVABLE PROPERTY, AND FOR THE DISCOVERY OF PERSONS WRONGFULLY CONFINED:
SECTION 94: Summons to produce document or other thing:
State Amendments GUJARAT.-Section 15 of the Ahmedabad City Courts Act, 1961 (Gujarat Act XIX of 1961) (which Act has constituted the City of Ahmedabed a Sessions Divisional) runs as “15. In the Criminal Procedure Code for the words “Presidency-town” and the words “Greater Bombay” wherever they occur, the words “City of Ahmedabad” shall be substituted unless the context otherwise requires.” MAHARASHTRA.-In sub-section (1)- (1) for the words “beyond the limits of the towns of Calcutta and Bombay” substitute the words “beyond the limits of Greater Bombay” (Bombay Act XXIII of 1951, Section 2 and Schedule). (2) the words “in any place beyond the limits of Greater Bombay” shall be deletetd (Bombay Act XX of 1956, Section 4). Notes Section 94 does not apply to accused person under trial. AIR 1965 SC 1251 : 1966 (2) Cr LJ 256. An order for production of documents is clearly an order to furnish evidence. 1959 Cr LJ 410: 1959 All LJ 29: AIR 1959 All 219. Sections 94 and 95 must be read and interpreted together as they form one group. The documents and things contemplated by Section 95 are those which are necessary for the purpose of investigation, inquiry, trial or other proceedings are the custody of the Postal or Telegraph Authorities. 1960 All LJ 222 : 1960 Cr LJ 871 : AIR 1960 All 405. Article 20(3) of the Constitution does not derogate from the Court the power to issue a search warrant under Section 94 of the Cr. P. Code. 1959 MPLJ (Notes) 215.
(1) Whenever any Court, or in any place beyond the limits of the towns of Calcutta and Bombay, any officer in charge of a police-station, considers that the production of any document or other thing is necessary or desirable for the purposes of any investigation, inquiry, trial or other proceeding under this Code by or before such Court or officer, such Court may issue a summons, or such officer a written order, to the person in whose possession or power such document or thing is believed to be, requiring him to attend and produce it, or to produce it, at the time and place stated in the summons or order.
(2) Any person required under this section merely to produce a document or other thing shall be deemed to have complied with the requisition, if he causes such documentor thing to be produced instead of attending personally to produce the same.
(3) Nothing in this section shall be deemed to affect the (Evidence Act, 1872), (Sections 123) and (S.124 of the Indian Penal Code, 1860) or to apply to a letter, postcard, telegram or other document or any parcel or thing in the custody of the Postal or Telegraph authorities.
Section 95: Procedure as to letters and telegrams:
State Amendments MAHARASHTRA.-In sub-section (2) of Section 95 for the words “District Superintendent of Police” substitute the words “Superintendent of Police”. (Maharashtra Act XLVI of 1962, Section 3 and Sch.) PUNJAB, HARYANA AND CHANDIGARH.-In Section 95, after the words “District Magis- trate”, wherever occurring, substitute the words “Chief Judicial Magistrate”. [Punjab Act XXV of 1964, Section 2 and Sch., Pt. I, item (25) (2-10-1964) and Act 31 of 1966, Sections 29 and 88]. UNION TERRITORIES (except Chandigarh)-Same as that of Punjab. WEST BENGAL.-In Section 95, after the words “District Magistrate”, in the two places they occur insert the words “Sub-Divisional Judicial Magistrate”. (W. B. Act VIll of 1970, Section 2 and Sch., Item 36). Notes Extent of order.-Phrase “document, parcel or thing” employed in Section 95(2) includes postal money-order. 1960 Cr LJ 1134 : AIR 1960 Punj 412. The word ‘etc.’ in the order makes it vague.-An order under Section 95 directing the postal authorities to deliver ‘parcels, letters, etc ‘ addressed to accused, to a certain person . is vague. The word ‘etc.’ should be avoided, the order should specify what things besides letters and parcels to be delivered. 1960 All LJ 222 : 1960 Cr LJ 871 : AIR 1960 All 405. Legality of an omnibus order addressed to mail authorities.-An omnibus order by the District Superintendent of Police under section 95(2) directing the Postaland Telegraph Department to detain the entire mail addressed to the petitioner is not illegal. 1960 Cr LJ 1134 : AIR 1960 Punj 412. Presumption from voluntary non-production.-For presumption from voluntary non-production of documents for comparison of handwriting, see Section 95 supra. 1960 MPLJ (Notes) 67.
(1) If any document, parcel or thing in such custody is, in the opinion of any District Magistrate, Chief Presidency Magistrate, High Court or Court of Session, wanted for the purpose of any investigation, inquiry, trial or other proceeding under this code, such Magistrate or Court may require the Postal or Telegraph authorities, as the case may be, to deliver such document, parcel or thing to such person as such Magistrate or Court directs.
(2) If any such document, parcel or thing is, in the opinion of any other Magistrate, or of any Commissioner of Police or District Superintendent of Police, wanted for any such purpose, he may require the Postal or Telegraph Department, as the case may be, to cause search to be made for and to detain such document, parcel or thing pending the orders of any such District Magistrate, Chief Presidency Magistrate or Court.
SECTION 96: When search-warrant may be issued:
State Amendments PUNJAB, HARYANA AND CHANDIGARH.-In sub-section (2) after the words “District Magistrate”, the words “or Chief Judicial Magistrate” shall be inserted. (Punjab Act 25 of 1964 and Act 31 of 1966). UNION TERRITORIES-(except Chandigarh).-Same as that of Punjab.
(1) Where any Court has reason to believe that a person to whom a summons or order under (Section 94) or a requisition under (Section 95), sub-section (1), has been or might be addressed, will not or would not produce the document or things as required by such summons or requisition, or where such document or thing is not known to the Court to be in the possession of any person, or where the Court considers that the purposes of any inquiry, trial or other proceeding under this Code will be served by a general search or inspection, it may issue a search-warrant ; and the person to whom such warrant is directed, may search or inspect in accordance therewith and the provisions hereinafter contained.
(2) Nothing herein contained shall authorise any Magistrate other than a District Magistrate or Chief Presidency Magistrate to grant a warrant to search for a document, parcel or other thing in the custody of the Postal or Telegraph authorities.
SECTION 97: Power to restrict warrant:
The Court may, if it thinks fit, specify in the warrant the particular place or part thereof to which only the search or inspection shall extend ; and the person charged with the execution of such warrant shall then search or inspect only the place or part so specified.
SECTION 98: Search of house suspected to contain stolen property, forged documents, etc:
State Amendments PUNJAB HARYANA AND CHANDIOARH.-After the words “District Magistrate” wherever occurring, the words “Chief Judicial Magistrate” shall be inserted. (Punjab Act 25 of 1964 and and 31 of 1966). UNION TERRITORIES-(except Chandigarh)-Same as that of Punjab. WEST BENGAL In its application to the State of West Bengal, in Section 98- (i) in the first paragraph, for the words “Sub-divisional Magistrate, Presidency Magistrate or”, substitute the words “Sub-divisional Judicial Magistrate, Presidency Magistrate, Sub-divisional Executive Magistrate or Judicial or Executive; (ii) in the fourth paragraph for the words “Sub-divisional Magistrate” substitute the words “Sub-divisional Judicial Magistrate, Sub-divisional Executive Magistrate”. W. B. Act 8 of 1970, Section 2 and Sch” Item 38.
(1) If a District Magistrate, Sub-divisional Magistrate, Presidency Magistrate or Magistrate of the first class, upon information and after such inquiry as he thinks necessary, has reason to believe that any place is used for the deposit or sale of stolen property, or for the deposit or sale or manufacture of forged documents, false seals or counterfeit stamps or coin, or instruments of materials for counterfeiting coin or stamps or forgoing, or that any forged documents, false seals or counterfeit stamps or coin, or instruments or materials used for counterfeiting coin or stamps or for forging, are kept or deposited in any place, [or, if a District Magistrate, Sub-divisional Magistrate or a Presidency Magistrate, upon information and after such inquiry as he thinks necessary, has reason to believe that any place is used for the deposit, sale, manufacture or production of any obscene object such as is referred to in (S. 292 of the Indian Penal Code, 1860) or that any such obscene objects are kept or deposited in any place;] he may by his warrant authorise any police officer above the rank of a constable- (a) to enter, with such assistance as may be required, such place, and (b) to search the same in manner specified in the warrant, and (c) to take possession of any property, documents, seals, stamps, or coins therein found which he reasonably suspects to be stolen, unlawfully obtained, forged, false or counterfeit, and also of any such instruments and materials [or of any such obscene objects] as aforesaid, and (d) to convey such property, documents, seals, stamps, coins, instruments or materials [or such obscene objects] before a Magistrate, or to guard the same on the spot until the offender is taken before a Magistrate, or otherwise to dispose thereof in some place of safety, and (e) to take into custody and carry before a Magistrate every person found in such place who appears to have been privy to the deposit, sale or manufacture or keeping of any such property, documents, seals, stamps, coins, instruments or materials [or such obscene objects) knowing or having reasonable cause to suspect the said property to have been stolen or otherwise unlawfully obtained, or the said documents, seals, stamps, coins, instruments or materials to have been forged, falsified or counterfeited, or the said instruments or materials to have been or to be intended to be used for counterfeiting coin or stamps or for forging^ [or the said obscene objects to have been or to be intended to be sold, let to hire, distributed, publicly exhibited, circulated, imported or exported.]
(2) The provisions of this section with respect to– (a) counterfeit coin, (b) coin suspected to be counterfeit, and (c) instruments or materials for counterfeiting coin, shall, so far as they can be made applicable, apply, respectively to- (a) pieces of metal made in contravention of the (Metal Tokens Act, 1889), or brought into [India] in contravention of any notification for the time being in force under (S.19 of the Sea Customs Act, 1878), (b) pieces of metal suspected to have been so made or to have been so brought into [India] or to be intended to be issued in contravention of the former of those Acts, and (c) instruments or materials for making pieces of metal in contravention of that Act.
SECTION 99: Disposal of things found in search beyond jurisdiction:
When, in the execution of a search-warrant at any place beyond the local limits of the jurisdiction of the Court which issued the same, any of the things for which search is made, are found, such things, together with the list of the same prepared under the provisions hereinafter contained, shall be immediately taken before the Court issuing the warrant, unless such place is nearer to the Magistrate having jurisdiction therein than to such Court, in which case the list and things shall be immediately taken before such Magistrate; and, unless there be good cause to the contrary, such Magistrate shall make an order authorising them to be taken to such Court.
SECTION 99A: Power to declare certain publications forfeited and to issue search-warrants for the same:
[ State Amendments GUJARAT.-Amendments are same as that of Maharashtra State (1). MAHARASHTRA.-In sub-section (1), after the words “appears to the State Government to contain” insert the words “in respect of any judicial proceedings, any indecent or obscene matter or any indecent or obscene details, whether medical, surgical or physiological which would be calculated to injure the public morals, or”. (Bombay Act 18 of 1955, Section 7 and Schedule). (2) After the reorganization to the Bombay in 1956, the amendment made in Section 99-A by the above-mentioned Bombay Act is extended to the newly added area of Hyderabad, Kutch and Saurashtra and the region of Vidarbha as from 1-9-1959 by Bombay Act XCVII of 1958. MYSORE.-Same as that of Maharashtra (1). RAJASTHAN.-Abu Ana: Same as that of Maharashtra (1). TAMIL NADU In its application to the State of Madras, in sub-section (1), Section 99-A- (i) after the words “appears to the State Government to contain” insert the words “in relation to any judicial proceedings, any indecent or obscene matter, or any indecent or obscene details, which would be calculated to injure public morals, or” and (ii) after the words “that is to say” insert the words, brackets, letter and figures “any matter referred to in clause (a) of sub-section (1) of Section 3 of the Madras Judicial Proceedings (Regulation of Reports) Act, 1960, or” T.N. Act XXI of 1960. Notes Constitutionality : Sections 99-A, B, C and D.-The procedure for forfeiture laid down in Section 99-A, Cr. P. Code is only consequential to the substantive law laid down in Section 295-A, Penal Code. Hence, Section 99-A, Cr. P. Code and the sections followed cannot be attacked as ultra vires. 1960 All LJ481: 1960 Cr LJ 1528: AIR 1960 All 715 (FB). Whether hit by Art. 19.-This section is not hit at by Article 19 of the Constitution and its validity cannot be impeached. 1959 Mad LJ (Cr) 703 : 1959 Cr LJ 1280 (SB) : AIR 1959 Andh Pra 572. Extent of defence.-It is no defence to a charge under this section or Section 295-A of the Penal Code that another had incidentally attacked religious beliefs of other persons. 1959 MLJ (Cr) 703: 1969 Cr LJ 1280 (SB) : AIR 1959 Andh Pra 572. Only a part of a volume not to be forfeited.-Part or division of the volume cannot be separately forfeited. 1959 Mad LJ (Cr) 703: 1959 CrLJ1280 (SB): AIR 1959 Andh Pra 572. Meaning of “Book”.-Book is defined in the Press and Registration of Books Act, 1887, which is only an inclusive definition, and must be read with the ordinary meaning thereof. 1959 MLJ (Cr) 703 : 1959 Cr LJ 1280 (SB) : AIR 1959 Andh Pra 572. Effect of absence of grounds.-The non-observance of the rule in regard to the subject-matter of the grounds does not vitiate the whole order. 1959 Mad LJ (Cr) 703: 1959 Cr LJ 1280 (SB) : AIR 1959 Andh Pra 572. In making an order under Section 99-A the Government must state the grounds of its opinion. Section 99-B gives the aggrieved party, freedom to move the High Court for setting aside the order under Section 99-A. 1961 ALJ (SC) 753.
(1) Where- (a) any newspaper, or book as defined in the Press and Registration of Books Act, 1867, or (b) any document, wherever printed, appears to the State Government to contain any seditious matter [or any matter which promotes or is intended to promote feelings of enmity or hatred between different classes of [the citizens of India]] [or which is deliberately and maliciously intended to outrage the religious feelings of any such class by insulting the religion or the religious beliefs of that class], that is to say, any matter the publication of which is punishable under (Section 124A) [or (Section 153A)][or (Section 295A) ] of the (Indian Penal Code, 1860), the State Government may, by notification in the Official Gazette, stating the grounds of its opinion, declare every copy of the issue of the newspaper, containing such matter, and every copy of such book or other document to be forfeited to Government, and thereupon any police officer may seize the same wherever found in *[lndia] and any Magistrate may by warrant authorise any police officer not below the rank of sub-inspector to enter upon and search for the same in any premises where any copy of such issue or any such book or other document may be or may be reasonably suspected to be.
(2) In sub-section (1) “document” includes also any painting, drawing or photograph, or other visible representation.
SECTION 99B: Application to High Court to set aside order of forfeiture:
Any person having any interest in any newspaper) book or other document, in respect of which an order of forfeiture has been made under Section 99-A, may, within two months from the date of such order, apply to the High Court to set aside such order on the ground that the issue of the newspaper, or the book or other document, in respect of which the order was , made, did not contain any [seditious or other matter of such a nature as is referred to in sub-section (1) of Section 99-A]. State Amendment TAMIL NADU.-For the words “seditious or other matter”, substitute the word “matter”. T. N. Act XXI of 1960, S. 6 and Sch. (30.11-1960) : Tamil Nadu A. L. 0., 1969. Note The above amendment is made by the Bombay Judicial Proceedings (Regulation of Reports)Act, 1955 (Bombay Act 18 of 1955), the relevant portion of Section 7 of which contained in Section 4 (of the Bombay Act 18 of 1955), apply in respect of any newspaper, book or document which appears to the State Government to contain any matter in contravention of the provisions of this Act.
Section 99C: Hearing by Special Bench:
Every such application shall be heard and determined by a Special Bench of the High Court composed of three Judges.
SECTION 99D: Order of Special Bench setting aside forfeiture:
State Amendment TAMIL NADU.-For the words “seditious or other matter” substitute the word “matter”.- T.N. Act XXI of 1960, S.6 and Sch. (30-11-1960) : Tamil Nadu A.L.O., 1969. Notes Ss. 99-A to 99-G are inter-connected.-Sections 99-A to 99-G form a single scheme “dealing with the same subject-matter, forfeiture of objectionable literature. The enquiry under Section 99-D has to be confined to only one issue, whether the books in question contain matter of the nature referred to in Section 99-A. 1960 All LJ 481 : 1960 Cr LJ 1528 : AIR 1960 All 715 (SB). Under Section 99-D, the High Court must set aside an order of forfeiture of any publication which would be punishable under any one or more of Sections 124-A, 153-A or 295-A of the Penal Code if it is not satisfied that the ground on which the Government formed its opinion was not correct. It is not the duty of the High Court to find for itself whether the publication contained any such matters whatsoever. 1961 ALJ (SC) 752. The expression ‘matter of such a nature as is referred to in sub-section (1) of Section 99-A’ appearing in Section 99-D means only those matters on which the order of forfeiture was passed, i.e. those which for the reasons, stated by it, the thoughts were punishable under one or more Sections 124-A, 153-A and 295-A of the Penal Code. Under Section 99-D, the High Court must see whether the opinion given by the Government is correct and in Older to do so, it must necessarily examine the document itself. AIR 1961 SC 1662. A Special Bench constituted under Section 99-C has to confine its enquiry within the limits of Section 99-D. Section 99-A to Sections 99-G form a single scheme and must be read together. If so read it would be clear that the only question for consideration by the Special Bench is that mentioned in Section 99-D. AIR 1960 All 715.
(1)0n receipt of the application, the Special Bench shall, if it is not satisfied that the issue of the newspaper, or the book or other document, in respect of which the application has been made, contained * [seditious or other matter of such a nature as is] referred to in sub-section (1) of Section 99-A, set aside the order of forfeiture.
(2) Where there is a difference of opinion among the Judges forming the Special Bench, the decision shall be in accordance with the opinion of the majority of those Judges.
SECTION 99E: Evidence to prove nature or tendency of newspapers:
On the hearing of any such application with reference to any newspaper, any copy of such newspaper may be given in evidence in aid of the proof of the nature or tendency of the words, signs or visible representations contained in such newspaper, [in respect of which the order of forfeiture was made].
SECTION 99F Procedure in High Court:
Every High Court shall, as soon as conveniently may be, frame rules to regulate the procedure in the case of such applications, the amount of the costs thereof and the execution of orders passed thereon, and until such rules are framed, the practice of such Courts proceedings other than suits and appeals shall apply, so far as may be practicable, to such applications.
SECTION 99G: Jurisdiction barred:
No order passed or action taken under Section 99-A shall be called in question in any Court otherwise than in accordance with the provisions of Section 99-B.]*
SECTION 100: Search for persons wrongfully confined:
If any Presidency Magistrate, Magistrate of the first class or Sub-divisional Magistrate has reason to believe that any person is confined under such circumstances that the confinement amounts to an offence, he may issue a search- warrant, and the person to whom such warrant is directed may search for the person so confined, and such search shall be made in accordance therewith, and the person, if found, shall be immediately taken before a Magistrate, who shall make such order as in the circumstances of the case seems proper. State Amendment WEST BENGAL.-In Section 100, for the words “Magistrate of the first class, or Sub Divisional Magistrate”, substitute the words “Sub-Divisional Executive Magistrate, Executive Magistrate of the first class, Sub-Divisional Judicial Magistrate or Judicial Magistrate of the first class”. (West Bengal Act 8 of 1970, S. 2 and Sch. Item 39). Note Sections 106 to 126-A, Chapter VIII.-Whether constitutional-Nature and scope of preventive detention whether different under Cr.P.C. and Constitution of India, Article 22 (1970)3 SCO 746.
SECTION 101: Direction, etc., of search warrants:
The provisions of Sections 43, 75, 77, 79, 82, 83 and 84 shall, so far as may be, apply to all search warrants issued under Section 96, Section 98, ^[Section 99-A] or Section 100.
SECTION 102: Persons in charge of closed place to allow search:
Notes Applicability.-This section is not applicable to the offences under the Foreign Exchange Regulation Act. 1959 Cr LJ 1025 : AIR 1959 Tri 33. Information gathered during investigation to be treated as confidential. 1959 Ker LT 167: 1959 Ker LJ 221.
(1)Whenever any place liable to search or inspection under this chapter is, closed, any person residing in, or being in charge of such place shall, on demand of the officer or other person executing the warrant, and on production of the warrant, allow him free ingress thereto, and afford all reasonable facilities for a search therein.
(2) If ingress into such place cannot be so obtained, the officer or other person executing the warrant may proceed in manner provided by Section 48.
(3) Where any person in or about such place is reasonably suspected of concealing about his person any article for which search should be made, such person may be searched. If such person is a woman, the directions of Section 52 shall be observed.
SECTION 103: Search to be made in presence of witnesses:
Notes Conditions of search.-Conviction was set aside when search was conducted in absence of witnesses and the seized thing was not sent to the nearest police station. 1959 MPLJ (Notes) 172. Character of persons before whom search is made.-The persons selected should be absolutely unprejudiced and disinterested and may belong to a different locality. 1959 Cr LJ 1189: AIR 1959 Mad 450. Taking of thumb-impression of accused.-Taking thumb-impression of accused on panchnamas by the police are highly objectionable. 1959Cr LJ 689: 1959 Andh LT 139: AIR 1959 Andh Pra313. Presence of panchas at the time of search.-Where the presence of the panchas is obligatory at the time of search, the evidence of the Police Officer conducting the search must ordinarily be corroborated by the testimony of some other person than the Police Officer who conducted the search. 1960 Cr LJ 1447 : AIR 1960 Guj 24. Where a search is made incontravention of Sections 103 and 163, the search could be resisted and it might be that the Court, in view of the illegality of the search examine carefully the evidence regarding it, but beyond this no further adverse effect could be brought about, the seizure would not be vitiated. 1963 AWR 304. The fact that outsiders attested the panchnama contrary to Section 103, Cr.P.C, was only an irregularity not affecting the legality of the proceedings. There is no reason to disbelieve high placed officers who were present at the raid and the recovery. Tej Bahadur Singh v. State of U. P., 1970 (3) SCC 779. A recovery witness who has been joining in the police raids for the last fifteen years cannot be treated as an independent witness. For applicability of the section to searches conducted under Sales tax Laws see Notes in Sections 165. AIR 1968 SC 1517: AIR 1968 SO 59.
(1) Before making a search under this chapter, the officer or other person about to make it shall call upon two or more respectable inhabitants of the locality in which the place to be searched is situate to attend and witness the search [and may issue an order in writing to them or any of them so to do].
(2) The search shall be made in their presence, and a list of all things seized in the course of such search and of the places in which they are respectively found shall be prepared by such officer or other person and signed by such witnesses; but no person witnessing a search under this section shall be required to attend the Court as a witness of the search unless specially summoned by it.
Occupant of place searched may attend.-(3) The occupant of the place searched, or some person in his behalf, shall, in every instance, be permitted to attend during the search, and a copy of the list prepared under this section, signed by the said witnesses, shall be delivered to such occupant or person [* * *].
(4) When any person is searched under Section 102, sub-section (3), a list of all things taken possession of shall beprepared, and acopy thereof shall be delivered to such person [* * *].
[(5) Any person who, without reasonable cause, refuses or neglects to attend and witness a search under this section, when called upon to do so by an order in writing delivered or tendered to him, shall be deemed to have committed an offence under Section 187 of the Indian Penal Code.]
SECTION 104: Power to impound document, etc., produced:
Any Court may, if it thinks fit, impound any document or thing, produced before it under this Code.
SECTION 105: Magistrate may direct search in his presence:
Any Magistrate may direct a search to be made in. his presence of any place for the search of which he is competent to issue a search-warrant.
CHAPTER 7A: SPECIAL RULES REGARDING PROCESSES IN CERTAIN GASES:
SECTION 105A: Special rules regarding processes in certain cases:
(1) Where a Court in the territories to which this Code extends (hereinafter in this section referred to as the said territories) desires that- (a) a summons to an accused person, or (b) a warrant for the arrest of an accused person, or (c) a summons to any person requiring him to attend and produce a document or other thing, or to produce it, or (d) a search warrant, issued by it shall be served or executed at any place within the local limits of the jurisdiction of a Court in the State of Jammu and Kashmir or a Court established or continued by the authority of the Central Government in any area outside the said territories, it may send such summons or warrant in duplicate by post or otherwise, to the presiding officer of that Court to be served or executed; and where any summons referred to in clause (a) or clause (c) has been so served, the provisions of Secon 74 shall apply in relation to such summons as if the presiding officer of the Court to whom it is sent were a magistrate in the said territories.
(2) Where a Court in the said territories has received for service or execution- (a) a summons to an accused person, or (b) a warrant for the arrest of an accused person, or (c) a summons to any person requiring him to attend and produce a document or other thing, or to produce it, or (d) a search warrant, issued by a Court in the State of Jammu and Kashmir or a Court established or continued by the authority of the Central Government in any area outside the said territories, it shall cause the same to be served or executed as if it were a summons or warrant received by it from another Court in the said territories for service or execution within the local limits of its jurisdiction; and where- (i) a warrant of arrest has been executed, the person arrested shall, so far as possible, be dealt with in accordance with the pro- cedure prescribed by Sections 85 and 86; (ii) a search warrant has been executed, the things found in the search, shall, so far as possible, be dealt with in accordance with the procedure prescribed by Section 99.]
PART 4: PREVENTION OF OFFENCES:
CHAPTER 8: SECURITY FOR KEEPING THE PEACE AND FOR GOOD BEHAVIOUR:
SECTION 106: Security for keeping the peace on conviction:
State Amendments GUJARAT, MYSORE AND RAJASTHAN.-Same as that of Maharashtra. MAHARASHTRA,-(1) In sub-section (1) delete the words “a District Magistrate, a Subdivisional Magistrate” (Bombay Act XXIII of 1951, Section 2 and Schedule). (2) After the reorganisation of the State of Bombay in 1956. The amendment in Section 106(1) by the Bombay Act is extended to the newly adaed areas of Hyderabad, Kutch and Saurastra and the region of Vidarbha w. e. f. 1-9-1959 (Bom Act 97 of 1958). PUNJAB, HARYANA AND CHANDIGARH.-In sub-section (1) for the words “Court of a Presidency Magistrate, a District Magistrate, a Sub-divisional Magistrate or a Magistrate”, the words “Court of a Chief Judicial Magistrate or any other Judicial Magistrate” shall be substituted. (Punjab Act 25 of 1964). UNION TERRITORIES.-Same as that of Punjab. WEST BENGAL.-In Section 106(1), for the words “a District Magistrate, a Sub-Divisional Magistrate or a Magistrate of the first class,” substitute the words “a Sub-Divisional Judicial Magistrate or a Judicial Magistrate of the first class”. W. B. Act VIII of 1970, Section 2 and Schedule, Item 40.
(1) Whenever any person accused of [any offence punishable under Chapter Vlll of the Indian Penal Code, other than an offence punishable under Secition 143, Section 149, Section 153-A or Section 154 thereof, or of] assault or other offence involving a breach of the peace, or of abetting the same, * * * or any person accused of committing criminal intimidation, is convicted of such offence before a High Court, a Court of Session or the Court of a Presidency Magistrate, a District Magistrate, a Sub. divisional Magistrate or a Magistrate of the first class, and such Court is of opinion that it is necessary to require such person to execute a bond for keeping the peace, such Court may, at the time of passing sentence on such person, order him to execute a bond for a sum proportionate to his means, with or without sureties, for keeping the peace during such period, not exceeding three years, as it thinks fit to fix.
(2) If the conviction is set aside on appeal or otherwise, the bond so executed shall become void.
(3) An order under this section may also be made by an Appellate Court * * * or by the High Court when exercising its powers of revision.
SECTION 107: Security for keeping the peace in other cases:
State Amendments GUJARAT AND RAJASTHAN.-Same as that of Maharashtra (1). MAHARASHTRA-(1) In sub-section (1) for the words “Presidency Magistrate, District Magistrate, Sub-divisional Magistrate or Magistrate of the first class” substitute the following: “Presidency Magistrate specially empowered by the State Government in this behalf or a District Magistrate or Sub-divisional Magistrate or a Taluqa Magistrate specially empowered by the State Government in this behalf.” Bombay Act XXIII of 1951, Section 2 and Sch.). (2) Same as that under Section 106 of Maharashtra.(2) with certain modification. For the words “Section 106(1)”, the words “Section 107(1)” shall be substituted. MYSORE.-For the words “Magistrate of the first class”, substitute the words “a magistrate of the first class specially empowered by the State Government in this behalf” Mys Act of 1965, S.22. PUNJAB, HARYANA AND CHANDIGARH.-For the words “Magistrate of the first class”, the words “Executive Magistrate of the first class” shall be substituted. (Punjab Act 25 of 1964 and 31 of 1966). UNION TERRITORIES-(except Chandigarh).-Same as that of Punjab. WEST BENGAL.-For the words. “Sub-Divisional Magistrate or Magistrate of the first class”, substitute the words “Sub-divisional Executive Magistrate or Executive Magistrate of the first class” and in sub-section (3), for the words “any Magistrate”, substitute the words “any Executive Magistrate”.-West Bengal Act 8 of 1970, Section 2 and Schedule, Item 41. Notes Object.-Section 107 is not intended for the punishment of past offences. 1959 Cr LJ 998: (1959)2 Mad LJ II : AIR 1959 Mad 339. Independent nature of Section 107.-Section 107 is applicable notwithstanding that the acts alleged involving apprehension of breach of the peace can be otherwise punished. 1959 Cr LJ 998: (1959)2 Mad LJ II : AIR 1959 Mad 339. A proceeding under Section 107, Cr P. C” is not a trial. State of A. P. v. Kokkiliagada Merrayya, (1969) 1 SCC 161. See also Notes in Sections 117 and 151. (1970)2 SCC 750; (1970)3 SCC 926: 1971 SCC (Cr) 171. Condition for an order under Section 107.-In the proceedings under Section 107, Cr. P. Code, before an order directing the accused to execute interim bond under Section 117 (3) is passed, reading over of the order under Section 112 and explaining its substance to the accused is a necessary condition precedent to the making of such an order. 1960 Mad LJ (Cr) 585: 1960 Cr LJ 134: AIR 1960 Mys 289. Powers of Magistrate.-In proceedings under Section 107, the Magistrate has no jurisdiction under Section 145, clause (4) to attach the land permanently and refer the parties to a Civil Court. He can adopt this course only after he has passed an order under section 146. In a clear or a bona fide land dispute leading to a breach of the peace, the Magistrate should draw up proceedings under Section 145 only. (1961)1 CrLJ 622: AIR Jurisdiction of Magistrate.-Where a Sub-Magistrate, who has ordered for the arrest of a person under Section 151 does not proceed with the matter and the Police file an independent charge under Section 109 before a First Class Magistrate, the latter is exclusively seized of proceedings. 1960 Ker LJ 21: 1960 CrLJ 907: AIR 1960 Ker 227. Commencement of the periods.-The period for which a person proceeded against under Section 107, Cr. P. Code is required to furnish security for good behaviour runs from the date of the order passed under Section 118, Or. P. Code. 1960 MPLJ (Notes) 31. Delay in proceedings.-Prolongation of proceedings is not calculated to achieve the object of the section. (1959) 2 An WR 454: 1959 Mad LJ (Cr) 836. Forfeiture.-For forfeiture of bond for keeping peace, see Section 514 (1), 1960 Cr LT 978: AIR 1960 Pat 325.” Principle of ‘Issue estoppel’- Applicability See Notes in Section 403, (1969) 1 SCC 161.
(1) Whenever a Presidency Magistrate, District Magistrate, Sub-divisional Magistrate or Magistrate of the first class is informed 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, the Magistrate [if in his opinion there is sufficient ground for proceeding] may, in 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 to fix.
[(2) Proceedings under this section may be taken before any Magistrate empowered to proceed under sub-section (1) when either the place where the breach of the peace or disturbance is apprehended is within the local limits of such Magistrate’s jurisdiction or there is within such limits a person who is likely to commit a breach of the peace or disturb the public tran- quillity or to do any wrongful act as aforesaid beyond such limits.]
Procedure of Magistrate not empowered to act under sub-section(1). -(3) When any Magistrate not empowered to proceed under subsection (1), has reason to believe 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 that such breach of the peace or disturbance cannot be prevented otherwise than by detaining such person in custody, such Magistrate may, after recording his reasons, issue a warrant for his arrest (if he is not already in custody or before the Court), and may send him before a Magistrate empowered to deal with the case, together with a copy of his reasons.
(4) A Magistrate before whom a person is sent under [sub-section (3)] may in his discretion detain such person in custody [pending further action by himself under this chapter].
SECTION 108: Security for good behaviour from persons disseminating seditious matter:
Whenever a Chief Presidency or District Magistrate, or a Presidency Magistrate or Magistrate of the first class specially empowered by the State Government in this behalf, has information, that there is within the limits of his jurisdiction any person who, within or without such limits, either orally or in writing [or in any other manner intentionally] disseminates or attempts to disseminate, or in. anywise abets the dissemination of,- I State Amendments GUJARAT AND RAJASTHAN.-Same as that of Maharashtra (1). MAHARASHTRA.-(1) For the words “or a Presidency Magistrate or Magistrate of the first class” substitute the words “or Sub-divisional Magistrate or a Presidency Magistrate”. (Bom. Act 2 3 of 1951, Section 2 and Schedule), (2) Same as that under Section 106 of Maharashtra (2) with certain modification. For the words “Section 106(1)”, the words “Section 108” shall be substituted, PUNJAB, HARYANA AND CHANDIGARH.-For the words “Magistrate of the first class” the words of “executive Magistrate of the first class” shall be substituted. (Punjab Act 25 of 1964 and 31 of 1966). UNION TERRITORIES (except Chandigarh).-Same as that of Punjab, WEST BENGAL.-Same as that of Punjab.
(a) any seditious matter, that is to say, any matter the publication of which is punishable under Section 124-A of the Indian Penal Code, or
(b) any matter the publication of which is punishable under Seetion 153-A of the Indian Penal Code, or
(c) any matter concerning a Judge which amounts to criminal intimidation or defamation under the Indian Penal Code, such Magistrate, [if in his opinion there is sufficient ground for proceeding] may (in 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 to fix. 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, [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.
SECTION 109: Security for good behaviour from vagrants and suspected persons:
Whenever a Presidency Magistrate) District Magistrate Subdivisional Magistrate or Magistrate of the first class receives information.- State Amendments GUJARAT, MAHARASHTRA, MYSORE AND RAJASTHAN.-For the words “Presidency Magistrate, District Magistrate, Sub-divisional Magistrate or Magistrate of the first class” substitute the words “Presidency Magistrate specially empowered by the State Government in this behalf, or a District Magistrate or a Sub-divisional Magistrate”. PUNJAB, HARYANA AND CHANDIGARH.-For the words “Magistrate of the first class”, the words “Executive Magistrate of the first class” shall be substituted. UNION TERRITORIES (except Chandigarh).-Same as that of Punjab. WEST BENGAL.-For the words “Sub-divisional Magistrate of the first class”, substitute the words “Sub-divisional Executive Magistrate or Executive Magistrate of the first class”.
(a) that any person is taking precautions to conceal his presence within the local limits of such Magistrate’s jurisdiction, and that there is reason to believe that such person is taking such precautions with a view to committing any offence, or.
(b) that there is within such limits a person who has no ostensible means of subsistence, or who cannot give a satisfactory account of himself, such Magistrate may, in 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 one year, as the Magistrate thinks fit to fix.
Section 110: Security for good behaviour from habitual offenders:
Whenever a Presidency Magistrate, District Magistrate, or Sub-divisional Magistrate or a Magistrate of the first class specially empowered in this behalf by the State Government receives information that any person within the local limits of his jurisdiction- State Amendments GUJARAT AND RAJASTHAN.-Same as that of Maharashtra (1). MAHARASHTRA.-(1) For the words “Presidency Magistrate, District Magistrate, or Subdisional Magistrate or a Magistrate of the first class specially empowered in this behalf by the State Government” substitute the words “Presidency Magistrate specially empowered by the State Government in this behalf, or a District Magistrate or a Sub-divisional Magistrate”. (Bombay Act 23 of 1951, Section 2 and Schedule). (2) After the reorganizationf the State of Bombay in 1956, the amendment made in Section 110 by the above-mentioned Bombay Act is extended to the newly added areas of Hyderabad, Kutch and Saurashtra and the region of Vidarbha as from 1-9-1959 by Bombay Act XCVII of 1958. PUNJAB, HARYANA AND CHANDIGARH.-For the words “Magistrate of the first class”, the words “Executive Magistrate of the first class” shall be substituted, UNION TERRITORIES (except Chandigarh).-Same as that of Punjab. WEST BENGAL.-For the words “Sub-Divisional Magistrate or Magistrate of the first class”, substitute “Sub-divisional Executive Magistrate or Executive Magistrate of the first class”. (West Bengal Act 8 of 1970, Section 2 and Schedule, Item 44.) Notes Suspicion.-A person can be bound on the ground that he is a habitual burglar or thief. Suspicion does not amount to proof. 1959 All Cr R 74: 1959 Cr LJ 673: AIR 1959 All 347. An investigating officer’s statement involving his suspicion about a person of his having committed burglary is inadmissible. 1959 All Cr R 74 : 1959 CrLJ 673: AIR 1959 All 347. The commission of a sufficient number of burglary or thefts must be proved in order to stamp a man with habitual burgling. 1959 AIICrR74: 1959 CrLJ 673: AIR 1959 All 347.
(a) is by habit a robber, house-breaker, * * thief, [or forger],
(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 Chapter XII of the Indian Penal Code, or under Section 489-A, Section 489-B, Section 489-G or Section 489-D 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) is so desperate and dangerous as to render his being at large without security hazardous to the community, such Magistrate may) in manner hereinafter provided, require such person to now cause why he should not be ordered to execute a bond, with sureties, or his good behaviour for such period, not exceeding three years, as the Magistrate thinks fit to fix.
SECTION 111: Proviso as to European vagrants:
[.] Rep. by the Criminal Law Amendment Act, 1923 (12 of 1923), Section 8.
SECTION 112: 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 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, Notes Date of commencement of security order.-For the date of commencement off order of furnishing security, see Section 107, supra. 1960 MPLJ (Notes) 31. Section 112 compared with Section 117.-Section 112 and Section 117 provide two different procedures for two different ends and, therefore, a Magistrate has no jurisdiction to pass an order undersection 117(3) along with one under Section 112. Section 117 is to be resorted to when there is need for an emergency order. 1960 All LT 206: 1960 Cr LJ 1049: AIR 1960 All 467. Failure to read out the order under Section 112: Consequence.-Failure on the part of the Magistrate to read out the order under Section 112 or to explain its substance to the accused vitiates an order made under Section 117(3), Cr. P. Code and such an omission is not a mere irregularity and goes to the root of the proceedings. 1960 MLJ (Cr) 585. Provisions of Section 112 are mandatory.-Section 117, Cr. P. Code contemplates an enquiry after an order under Section 112 has been read or explained to the persons concerned and this condition is mandatory. Omission in matters involving the liberty of the citizens cannot be brushed aside on the ground that no prejudice has been caused to the person concerned consequent upon non-compliance, 62 Punj LR 76 : 1960 Cr LT 639 :AIR 1960 Punj 225. Effect of vagueness of notice.-The proceedings were wtiated by reason of the notice being vague. 24 Cut LT 123. Issue of notice containing reasons must precede the orders binding over.-A person cannot be asked to execute any interim bond under Section 117(3) without complying with the requirements of Sections 112 and 117(1). The Magistrate cannot bind over person without issuing him a notice and must give reasons for that. 1960 Mad LJ (Cr) 151; 1960 Cr LJ 837: AIR 1960 Mys 146. Order containing reason is not illegal.-No illegality or irregularity in the order for furnishing interim security if passed with cogent reasons for the same. 1959 Cr IJ 1320: AIR 1959 J and K 125. Legality of order of remand to jail custody.-To remand the accused persons to jail custody during the pendency of the enquiry under Section 117(3), Cr. P. Code is quite justified. 1959 All Cr R 133: 1959 CrLJ 672: AIR 1959 All 346. Failure to supply substance of information.-Failure to give substance of the information while passing order under this section is at best an irregularity. Writ petition in such case is not maintainable. 1959 All Cr R 133: 1959 Cr LJ 672: AIR 1959 All 346. The provisions of both the sections are mandatory and not merely directory. Where the warrant was never executed nor was the petitioner arrested under it, held that the issue of such a warrant cannot be made a ground for being set at liberty. 1962 ALJ 654.
SECTION 113: Procedure in respect of person present 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.
SECTION 114: Summons or warrant incase 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.
SECTION 115: Copy of order under Section 112 to accompany summons or warrant:
Every summons or warrant issued under Section 114 shall be accompanied by a copy of the order made under Section 112, 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. Notes There can be no estoppel against law. An adoption which is the duty of the High court to examine the matter from all aspects and come to an independent conclusion AIR 11957 SC 469, relied upon. AIR 1963 All 501.
SECTION 116: 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, and may permit him to appear by a pleader. Notes Where a trial with the aid of assessors was pending but was stayed for some reasons and during the period of stay the amending Act came into force and another Single Judge was posted who re-commenced the trial, the right of the accused to trial with the aid of assessors is not taken away by the amending Act. AIR 1962 All 58. The amending Act shall not affect any trial before a Court of Session either by . Jury or with the aid of assessors in which the Court of Session has begun to record evidence prior to the date of such commencement (i.e. 2.1.56) and which is pending on that date. The trial shall be continued and disposed of as if the amending Act has not been passed. 1961 ALJ 552.
SECTION 117: Inquiry as to truth of information:
Notes An order under Section 117 (3) is designed to meet an emergency. 1959 Cr LJ 998: (1959)2 Mad LJ 11 : AIR 1959 Mad 339. The Magistrate can pass order under this section even without recording evidence because enquiry commences with the examination of papers put up by the police. 1959 Cr LJ 1320: AIR 1959 J and K 125. A Magistrate is quite justified in remanding the accused perions to jail custody notwithstanding that inquiry is proceeding against them. 1959 All Cr R 133: 1959 Cr LJ 672 :AIR 1959 All 346. Merely at the prayer of the police in proceedings under Section 107, to take interim bonds from the accused persons, the Magistrate would not be justified in calling upon the accused to execute such bond unless himself satisfied that there is apprehension of breach of peace. 26 Cut LT 263: (1961) 1 Cr LJ 412: AIR 1961 On 53. Section 117 (3) presumes that unless the person is bound over, he would be able to perpetrate that act, which causes an apprehension of breach of peace. It is not necessary to take a bond from a person who is already in detention and is not released. Madhu limayt v. Ved Murti, (1970)3 SCC 739. See also Notes in Section 151- Raj Narain v.Supdt. Central fail, (1970)2 SCC 750 ; Pranab Chatterji v. State of Bihar, 1970)3 SCC 926: 1971 SCC (Cr) 171.
(1) When an order under Section 112 has been read or explained under Section 113 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 summons or warrant issued under Section 114, 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 trials and recording evidence in summons cases.]
[(3) Pending 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 112 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 detain 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, and (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 112.]
[(4) For the purposes 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.
SECTION 118: 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- first, that 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 Section secondly, that the amount of every bond shall be fixed with due regard to the circumstances of the case and shall not be excessive; thirdly, that when the person in respect of whom the inquiry is made is a minor, the bond shall be executed only by his sureties. Notes Commencement.-Period for which security is to be furnished commences from the date of order under Section 118. 1960 MPLJ (Notes) 31. State order is liable to be quashed.-The order under Section 118 was quashed since a long time had elapsed from the date thereof. 1958 BLJR 352: 1959 Cr LJ 887: AIR 1159 Pat 304. Omission of date.-Omission in the order as to the date by which security bonds were to be furnished is mere irregularity curable by fixing date. 1958 BLJR 352: 1959 Cr LJ.887: AIR 1959 Pat 304. Keeping peace.-Order directing security to be furnished for keeping peace for a particular period does not become infructuous by reason of the period fixed having expired during the pendency of the appeal or revision. 1958 BLJR 352 : 1959 CrLJ 887: AIR 1959
SECTION 119: Discharge of person informed against:
If, on an inquiry under Section 117, 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 not in custody, shall discharge him.
SECTION 120: 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 1 18, 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.
SECTION 121: Contends 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.
SECTION 122: 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 80 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 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 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.]
SECTION 123: Imprisonment in default of security:
State Amendment UTTAR PRADESH.-The following new section has been added after Section 123 : “123-A. imprisonment in default of security.-(1) If any person ordered to give security for any specified period under any enactment for the time being in force for the due performance or enforcement of any restriction or condition which may lawfully be imposed under such enactment, does not give such security on or before the date on which the security is required to be furnished, he shall, if the failure to perform or enforce the restriction or condition is punishable with imprisonment under such enactment, 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 security in accordance with the order: Provided that the imprisonment shall be simple. (2) If the security is tendered to the officer-in-charge of the jail, he shall forthwith refer the matter to the authority competent to take the security under the order and shall await the orders of such authority.” (U. P. Act 46 of 1948, Section 2 as amended by U. P. Act 8 of 1949).
(1) If any person ordered to give security under Section 106 or Section 118 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 is 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.
Proceedings when to be laid before High Court or Court of Session.-(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 or, if such Magistrate is a Presidency Magistrate, pending the orders of the High Court ; 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, 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.
[(3-A) If security has been required in the course of the same proceedings from two or more persons in respect of any one of whom the proceedings are referred to the Sessions Judge or the High Court under subsection (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 subcetions (2) and (3) shall, in that event, apply to the case 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.
(3-B) A Sessions Judge may in his discretion transfer any proceedings laid before him under sub-section (2) or sub-section (3-A) 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.]
(4) 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.
Kind of imprisonment.-(5) Imprisonment for failure to give security for keeping the peace shall be simple.
(6) Imprisonment for failure to give security for good behaviour [shall], where the proceedings have been taken under Section 108, * * * be simple and, where the proceeding have been taken under [Section 109 or] Section 110, be rigorous or simple as the Court or Magistrate in each case directs.
SECTION 124: Power to release persons imprisoned for failing to give security:
States Amendments PUNJAB, HARYAKTA. CHANDIGARH- (i) for the words “Chief Presidency Magistrate” wherever occurring, the words “Chief Judicial Magistrate” shall but substituted; and (ii) in sub-section (2), for the words “Chief Presidency”, the words “ChiefJudicial Magistrate” shall be substituted. (Punjab Act 25 of 1964; Act No. 31 of 1966.) UNION TERRITORIES (except Chandigarh)- (i) Same as that of Punjab (i), (ii) in sub-section (1), for the words “under this Chapter”, substitute the words “under Section 118 or, as the case may be, under Section 106” ; and (iii) in sub-section (2), for the words “under this Chapter”, substitute the words “under Section 106 or, as the case may be, under Section 118.” [Act 19 of 1969, Section 3 and Sch., Item 31 (in Delhi, on 2-10-1969)].
(1) Whenever the District Magistrate or a Chief Presidency 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 Chief Presidency or District Magistrate may (unless the order has been made by some Court superior to his own) make an order reducing the amount of the security or the number of securities or the time for which security has been required.
[(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 such person has been discharged^ is, in the opinion of the District Magistrate or Chief Presidency 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 District Magistrate or Chief Presidency Magistrate. Unless such person then 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 be entitled to release), the District Magistrate or Chief Presidency Magistrate may remand such person to prison to undergo such unexpired portion. A person remanded to prison under this sub-section 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 of Magistrate by whom such order was made, or to its or his successor.]
SECTION 125: Power of District Magistrate to cancel any bond for keeping the peace or good behaviour:
The Chief Presidency or District Magistrate 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 order of any Court in his district not superior to his Court. States Amendments PUNJAB, HARYANA, CHANDIGARH.-For the words “Chief Presidency” the words “ChiefJudicial Magistrate” shall be substituted. (Punjab Act 25 of 1964; 31 of 1966). UNION TERRITORIES (except Chandigarh) Substitute the following for Section 125, namely- “125. Power of Chief Judicial Magistrate to cancel any bond far keeping the peace and of District Magistrate to cancel any bond for keeping the peace or for good behaviour.-The ChiefJudicial Magistrate may, at any time, for sufficient reasons to be recorded in writing, cancel any bond for keeping the peace executed under Section 106 and the District Magistrate may at any time likewise cancel any bond for keeping the peace or for good behaviour executed under Section 118 by order of any Court in his district not superior to his Court.” [Act 19 of 1969, Section 3 and Sch., item 32 (in Delhi, on 2-10-1969)].
SECTION 126: Discharge of sureties:
States Amendments GUJARAT AND RAJASTHAN : Same as that o sf Maharashtra (i). MAHARASHTRA- (i) In sub-section (1), for the words beginning with the words “to a Presidency Magistrate” and ending with the words “first class” substitute the words “to the Court by which an order was made to give security” ; and (ii) substitute the following for sub-section (2) : “On such application being made, the Court shall issue summons or warrant, as it may think fit, requiring the person for whom such surety is bound to appear or to be brought before it.” (Bombay Act 23 of 1951, Section 2 and Schedule). (2) After the reorganisation of the State of Bombay in 1956, the amendments made in Section 126 by the above-mentioned Bombay Act were eended to the newly added areas of Hyderabad, Kutch and Saurashtra and the region of Vidarbha as from 1-9-1959 by Bombay Act XCVII of 1958. PUNJAB, HARYANA AND CHANDIGARH Same as in Maharashtra. UNION TERRITORIES (except Chandigarh)- (i) in sub-section (1), for the words’ ‘to a Presidency Magistrate, District Magistrate, Sub-divisional Magistrate or Magistrate of the first class,” substitute the words and figures “to the Court by which an order to give security was made under Section 106 or Section 118” and for the word “his” substitute the word “its”, and (ii) for sub-section (2), substitute the following sub-section namely : “(2) On such application being made, the Court shall issue summons or warrant, as it thinks fit, requiring the person for whom such surety is bound to appear or to be brought before it,”-[Act 19 of 1969, Section 3 and Sch., Item 33 (in Delhi, on 2-10-1969)]. WEST BENGAL For Section 126 substitute the following “126. Discharge of Sureties.-(1) Any surety for the peaceable conduct or good behaviour of another person may at any time apply to the Court by which an order was made to give security to cancel any bond executed under this Chapter within the local limits of its jurisdiction. (2) On such application being made, the Court shall issue summons or warrant, as it may think fit, requiring the person, for whom such surety is bound to appear or to be brought before it.”-W. B. Act 8 of 1970. Section 2 and Sch., item 45.
(1) Any surety for the peaceable conduct or good behaviour of another person may at any time apply to a presidency Magistrate, District Magistrate, Sub-divisional Magistrate or Magistrate of the first class to cancel any bond executed under this chapter within the local limits of his jurisdiction.
(2) On such application being made) the Magistrate shall issue his sumlimons or warrant, as he thinks fit, requiring the person for whom such surety is bound to appear or to be brought before him.
SECTION 126A: Security for unexpired period of bond:
[]. [When a person for whose appearance a warrant or summons has been issued under the proviso to sub-section (3) of Section 122 or under Section 126, sub-section (2), appears or is brought before him, the Magistrate 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. Every such order shall, for the purposes of Sections 121, 122, 123 and 124, be deemed to be an order made under Section 106 or Section 118, as the case may be.
CHAPTER IX: UNLAWFUL ASSEMBLIES:
SECTION 127: Assembly to disperse on command of Magistrate or police officer:
States Amendments GUJARAT : Same as that of Maharashtra. MAHARASHTRA.-In this application to Greater Bombay in Section 127 for the words “police station” substitute the words “section or any police officer not below the rank of a Sub-inspector authorised by the State Government in this behalf” [Bombay Act 22 of 1951, Section 96(3) (a)]. PUNJAB, HARYANA AND CHANDIGARH.-For the word “Magistrate”, wherever occurring, the words ‘Executive Magistrate” shall be substituted. (Act No. 25 of 1964; 31 of 1966). UNION TERRiTORiEs(except Chandigarh) : Same as that of Punjab. WEST BENGAL.-In Section 127(1), for the words ‘Any Magistrate’, substitute the words ‘Any Executive Magistrate, Presidency Magistrate. ‘(W.B. Act 8 of 1970, Section 2 and Schedule, Item 46.)
(1) Any Magistrate or officer-in-charge of a police-station 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) This section applies also to the police in the town * of Calcutta [* * *].
SECTION 128: Use of civil force to disperse:
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 Magistrate or officer-in-charge of a police-station, whether with in or without the presidency-towns, may proceed to disperse such assembly by force, and may require the assistance of any male person, not being an officer, [soldier, sailor or airman in [the armed forces] and acting as such, for the purpose of dispersing such assembly, and, if necessary, arresting and confining the persons who form part of it, in order to disperse such assembly or that they may be punished according to law. States Amendments GUJARAT : Same as that of Maharashtra. MAHARASHTRA-In its application to Greater Bombay in Section 128 for the words “police station whether within or without the presidency towns” substitute the words and figures “section or any police officer authorised under Section 127”. [Bombay Act 22 of 1951, Section 96(3)(b)]. PUNJAB, HARYANA, CHANDIGARH.-For the word “Magistrate”, wherever occurring, the words “Executive Magistrate” shall be substituted. (Punjab Act 25 of 1964; 31 of 1966). UNION TERRITORIES (except Chandigarh) : Same as that of Punjab. WEST BENGAL.-In Section 128, for the words ‘any Magistrate’, substitute the words ‘any Executive Magistrate, Presidency Magistrate’ (W. B. Act 8 of 1970, Section 2 and Schedule, Item 47).
SECTION 129: Use of armed forces:
If any such assembly cannot be otherwise dispersed, and if it is necessary for the public security that it should be dispersed, the Magistrate of the highest rank who is present may cause it to be dispersed by [the armed forces]. States Amendments GUJARAT : Same as that of Maharashtra. MAHARASHTRA,-It its application to Greater Bombay and other areas for which a Commissioner has been appointed, notwithstanding anything contained in this section, the powers and duties of a Magistrate under this section may be exercised and performed by the Commissioner.-See the Bombay Police Act, 1951 (Bombay Act XXII of 1951). PUNJAB, HARYANA AND CHANDIGARH.-For the word “Magistrate” wherever occurring, substitute the words “Executive Magistrate”. [Punjab Act XXV of 1964, Section 2 and Schedule, Pt. I, Item (33) (2-10-1964) and Act 31 of 1966, Sections 29 and 88 (1-11-1966)]. UNION TERRITORIES (except Chandigarh) : Same as that of Punjab. WEST BENGAL.-In Section 129, for the words ‘Magistrate of the highest rank’, substitute the words ‘Executive Magistrate of the highest rank or the Presidency Magistrate’. (W.B. Act 8 of 1970, Section 2 and Schedule, Item 48). Note Jurisdiction of the Magistrate.-Where the misrepresentation was at Simla and the consequence was at Lahore as the Government of Burma was induced by the misrepresentation to deliver money at Lahore, the offence of cheating can be tried either at Lahore or at Simla. 1960 Cr LJ 410: AIR 1960 SC 266.
SECTION 130: Duty of officer commanding troops required by Magistrate to disperse assembly:
States Amendments GUJARAT.-Whether the modification of this section in Greater Bombay made by Bombay Act XXII of 1951, Section 96(l)(i) would apply to the City of Ahmedabad, in view of Section 15, read with Section 14(3) of the Ahmedabad City Courts Act (XIX of 1961). MAHARASHTRA.-Amendments are same as that under Section 129 of this Act. PUNJAB, HARYANA, CHANDIGARH : Amendments are same as that under Section 129. UNION TERRITORIES (except Chandigarh) : Same as that of Punjab.
(1) When a Magistrate determines to disperse any such assembly ^[by the armed forces, he may require any officer thereof in command of any group of persons belonging to the armed forces to disperse such 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.
(2) Every such officer 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,
SECTION 131: Power of commissioned armed forces officers to disperse assembly:
When the public security is manifestly endangered by any such assembly, and when no Magistrate can be communicated with, [any commissioned 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 a 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. States Amendments PUNJAB, HARYANA, CHANDIGARH.-For the word “Magistrate”, wherever occurring, substitute the words “Executive Magistrate”.-Punjab Act XXV of 1964, [Section 2 and Schedule, Pt. I, Item 33 (2-10-1964) and Act 31 of 1966, Sections 29 and 88 (1-11-1966)]. UNION TERRITORIES (except Chandigarh) : (i) Same as that of Punjab. (ii) for the words “no Magistrate”, substitute the words “no Executive Magistrate” [Act 19 of 1969, Section 3 and Schedule, Item 34 (in Delhi, on 2-101969).] WEST BENGAL.-In Section 131, for the words ‘no Magistrate’, substitute the words ‘no Executive Magistrate or Presidency Magistrate” and for the words, “with a Magistrate” substitute the words, “with any such Magistrate.”-(W. B. Act 8 of 1970, Section 2 and Schedule, item 49.)
SECTION 132: Protection against prosecution for act done under this Chapter:
No prosecution against any person for any act purporting to be done under this Chapter shall be instituted in any Criminal Court, except with the sanction of the State Government ; and UNION TERRITORIES (except Chandigarh) : Same as that of Punjab.
(a) no Magistrate or police-officer acting under this Chapter in good faith,
(b) no officer acting under Section 131 in good faith,
(c) no person doing any act in good faith, in compliance with a requisition under Section 128 or Section 130, and
(d) no inferior officer, or [soldier, sailor or airman in the armed forces], doing any act in obedience to any order which he was bound to obey, shall be deemed to have thereby committed an offence : [Provided that no such prosecution shall be instituted in any Criminal Court against any officer or [soldier, sailor or airman in the armed forces], except with the sanction of the Central Government.]
SECTION 132A: Definitions:
[In this Chapter,- State Amendment MAHARASHTRA.-After the words “In this chapter”, insert the following clause namely “(a-1) the expression ‘Magistrate’ means ‘Executive Magistrate’.-Maharastra Act XXIX of 1969, Section 2 (9-6-1969)”. State Amendments PUNJAB, HARYANA, CHANDIGARH-For the word “Magistrate”, substitute the wolds “Executive Magistrate”-(Punjab Act XXV of 1964, and Act 31 of 1960).
(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 and a non-commissioned officer.]
CHAPTER 10: PUBLIC NUISANCES:
Section 133: Conditional order for removal of nuisance:
[States Amendments GUJARAT Same as that of Maharashtra (1). MAHARASHTRA (1).: (i) in the first paragraph, for the words, “District Magistrate, a Sub-divisional Magistrate or a Magistrate of the first class” substitute “Presidency Magistrate specially empowered by the State Government in this behalf or a District Magistrate or a Sub-divisional Magistrate”. (ii) in the last paragraph, for the words “to appear before himself or some other Magistrate of the first or second class” substitute “to appear before himself or some other Executive Magistrate.” (Bom Act XXIII of 1951, S.2and Schedule). (2) After the reorganization of the State of Bombay in 1956, the amendments made in Section 133 by the above-mentioned Bombay Act arc extended to the newly added areas of Hyderabad, Kutch and Saurashtra and the region of Vidarbha as from 1-9-1959 by Bombay Act XCVII of 1953. MYSORE : (i) in sub-section (1), for the words, “a Magistrate of the first class”, substitute the words, “a Magistrate of the first class specially empowered by the State Government in this behalf; and (ii) Same as in Maharashtra (l)(ii) above. PUNJAB, HARYANA AND CHANDIGARH : (i) in the opening paragraph of sub-section (1) and in sub-section (2), for the words “Magistrate”, the words, “an Executive Magistrate” shall be substituted’, and (ii) in the closing paragraph of sub-section (1) for the words “Magistrate of the first or second class”, the words “Executive Magistrate” shall be substituted. (Punjab Act 25 of 1964; 31 of 1966). RAJASTHAN: Same as (1) of Maharashtra. UNION TERRITORIES (except Chandigarh) : Same as that of Punjab. WEST BENGAL : (i) in the first paragraph, for the words “a Sub-divisional Magistrate or a Magistrate of the first class”, substitute the words “a Sub-divisional Executive Magistrate or an Executive Magistrate of the first class” ; (ii) in the last paragraph, for the words, “some other Magistrate”, substitute the words,” some other Executive Magistrate”. (W. B. Act 8 of l970). Notes The Magistrate before whom the person being proceeded with was directed in the conditional order under Section 133(1) to appear and show cause, can pass final order. 1960 Cr LJ 452 : AIR 1960 All 244. Legality of order.-Where person against whom conditional order was made appeared before the Magistrate but was not questioned whether he denied existence of public right in dispute, order appointing Jury is illegal. 1960 BLJR 349: 1960 Cr LJ 1489: AIR 1960 Pat 539. For legality of order see Section 139-A, infra. 1960 Cr LJ 119 : AIR 1960 Tri 3. Condition for passing order.-The order under Section 133 is not made absolute under Section 140 unless the Magistrate has proceeded under Section 137 or 138 and thereafter under Section 19 after his finding on enquiry that there is no reliable eyidence in support of the party’s denial of the public right claimed, and notice in terms of Section 140(1) is to be issued to the person concerned after the order has been made absolute. 1960 Cr LJ 334: AIR 1960 Cal 157. Mere causing inconvenience to the traffic by the obstruction is not enough for passing an order under Section 133. 1959 Cr LJ 1160 : AIR 1959 Cal 599. As soon as a neighbour apprehends danger, the conditions of Section 133 are fulfilled. 1958 Raj LW 310: 1959 Cr LJ 235 : AIR 1959 Raj 44. The party against whom a conditional order is made under Section 133 must choose one of the two courses; he should either show cause against the order or ask for the appointment of a Jury. He cannot have recourse to both the courses. 1960 BLJR 349 : 1960 Cr LJ 1489: AIR 1960 Pat 539. An encroachment of long standing may be ordered to be removed, even though at one time its removal was not thought urgent, change of circumstances may have regarded its removal urgent. Such an action can be taken under Section 133 even though the encroachment or nuisance had been in existance for a reasonably long time on the ground of genuine emergency. 1964 ALJ 629. A Magistrate before whom proceedings have been initiated under Section 133 and who has made a conditional order can direct the parties to appear before some other Magistrate of the first or second class but he cannot direct a party to appear before a Magistrate for the limited purpose of enquiry under Section 139-A. The Magistrate who gets seized of the case will be competent to dispose of the case finally either by setting aside the conditional order or by modifying it under Section 133. AIR 1963 All 27.
(1) Whenever a District Magistrate, a Sub-divisional Magistrate or a Magistrate of the first class considers, on receiving a police report or other information and on taking such evidence (if any) as he thinks fit,- that any unlawful obstruction or nuisance should be removed from any way, river or channel which is or may be lawfully used by the public, or from any public place, or 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 that the construction of any building, or the disposal of any substance, as likely to occasion conflagration or explosion, should be prevented or stopped, or 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 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 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.__ to remove such obstruction or nuisance ; or 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 to prevent or stop the erection of, or to remove, repair or support, such building, tent or structure ; or to remove or support such tree ; or to alter the disposal of such substance; or to fence such tank, well or excavation, as the case may be; or 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 Magistrate of the first or second class, at a time and place to be fixed by the order, and move to have the order set aside or modified in the manner hereinafter provided.
(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 grounds left unoccupied for sanitary or recreative purposes.]
SECTION 134: Service or notification of order:
(1) The order shall, if practicable, be served on the person against whom it is made, in 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 rule 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.
SECTION 135: Person to whom order is addressed to obey or show cause or claim jury:
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 either show cause against the same, or apply to the Magistrate by whom it was made to appoint a jury to try whether the same is reasonable and proper.
SECTION 136: Consequence of his failing to do so:
If such person does not perform such act or appear and show cause or apply for the appointment of a jury as required by Section 135, he shall be liable to the penalty prescribed in that behalf in Section 188 of the Indian Penal Code, and the order shall be made absolute.
SECTION 137: Procedure where he appears to show cause:
Notes Legality of order.-For legality of order under Section 137(1) without holding enquiry under Section 139-A, see S. 139-A, infra. 1960 Cr LJ 119: AIR 1960 Tri 3. Duty of Magistrate.-The Magistrate cannot make his order as final merely upon enquiry under S. 139-A. 1959 Cr LJ 1160: AIR 1959 Cal 599. Magistrate first of all, conduct an enquiry under Section 139-A, Cr. P. Code, in cases where the existence of any public right is denied, before holding the inquiry under Section 187 or 138. The Magistrate does gross illegality if an opportunity is not given by him to the accused to adduce their evidence and non-compliance of the provisions of Section 139-A causes failure of justice. 1960 Cr LJ 450 : AIR 1960 All 244.
(1) If be 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 is not reasonable and proper, no further proceedings shall be taken in the case.
(3) If the Magistrate is not so satisfied, the order shall be made absolute.
SECTION 138: Procedure where he claims jury:
(1) On receiving an application under Section 135 to appoint a jury, the Magistrate shall- (a) forthwith appoint a jury consisting of an uneven number of persons not less than five, of whom the foreman and one-half of the remaining members shall be nominated by such Magistrate, and the other members by the applicant; (b) summon such foreman and members to attend at such place and time as the Magistrate thinks fit; and (c) fix a time within which they are to return their verdict.
(2) The time so fixed may, for good cause shown, be extended by the Magistrate.
SECTION 139: Procedure where jury finds Magistrate’s order to be reasonable:
Notes Legality of Jurors.-When all jurors did not take part in deliberations, verdict by any is illegal. 1960 BLJR 349: 1960 Cr LJ 1489: AIR 1960 Pat 539.
(1) If the jury or a majority of the jurors find that the order of the Magistrate is reasonable and proper as originally made, or subject to a modification which the Magistrate accepts, the Magistrate shall make the order absolute, subject to such modification (if any).
(2) In other cases no further proceedings shall be taken under this.
SECTION 139A: Procedure where existence of public right is denied:
[Notes Scope.-The scope of an enquiry under Section 139-A, being limited, is solely for the purpose of finding out whether there is any necessity for a detailed enquiry under Section 137, and as such there is no scope to weigh the evidence leading to the existence of right, 1959 Ker LJ 1356 : 1960 Cr LJ 904 : AIR 1960 Ker 211. Provision is mandatory.-The provision under Section 139-A is mandatory and a Magistrate before whom proceeding under Section 133, Cr. P. Code have been started in respect of the obstruction of an alleged public pathways has no jurisdiction to ignore the said provision. AIR 1960 Trip 3. Nature of enquiry.-The enquiry as envisaged in Section 139-A savours of an exparte summary enquiry, and it does not contemplate taking down of the evidence before passing the order. 1958 BLJR 655 : 1959 Cr LJ 230 : AIR 1959 Pat 81. Non-compliance.-Non-compliance with the provisions of Section 139-A would not justify vacating the final order. 24 Cut LT 473. Failure to comply with technicalities.-In a case under Section 133, Cr. P. Code started against the sarpanch of a village for alleged encroachment and obstruction of a public thoroughfare, it was held that there was no material for non-compliance with the provisions of Section 139-A, Cr. P. Code. The failure, if any, to strictly and meticulously comply with the technicalities of Section 139-A would becurable under Section 537 of the Code. 62 Punj LR 89: 1960 Cr I.J 993: AIR 1960 Punj 377. Title.-Questions of title are not intended to be decided in an enquiry under Section 139-A before the Magistrate. 1957 All LJ 597. Reliable evidence.-Reliable evidence in the sense in which the term is used in Section 139-A means evidence on which it is possible for a competent Court to place reliance, 1957 All LJ 597 : AIR 1963 All 67. Reliable evidence does not mean evidence which is sufficient to decide a title, for in that case reference to civil court as contemplated by Section 13’J-A(2) would become unnecessary and meaningless. 62 Punj LR 89: 1960 Cr LJ 993: AIR 1960 Punj 377.
(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 137 or 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 Civil Court; and, if he finds that there is no such evidence, he shall proceed as laid down in Section 137 or Section 138, as the case may require.
(3) A person who has, on being questioned by the Magistrate under subsection (1), failed to deny the existence of a public right ol 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, nor shall any question in respect of the existence of any such public right be inquired into by any jury appointed under Section 138.]
SECTION 140: Procedure on order being made absolute:
Note When final order to be made.-Final order under Section 140(1) is not to be passed forthwith after inquiry under Section 139-A. 1960 Cr LJ 334: AIR 1960 Cal 157.
(1) When an order has been made absolute under Section 136, Section 137 or Section 139, 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.
Consequences of disobedience to order.-(2) If such act is not performed within the time fixed, the Magistrate may cause it to be performed, and may recover the costs of performing it, either by the sale of any building, goods or other property removed by his order or by the distress and sale of any other movable property of such person within or without the local limitsl of such Magistrate’s jurisdiction. If such other property is without such limits, the order shall authorise its attachment and sale when endorsed by the Magistrate within the local limits of whose jurisdiction the property to be attached is found.
(3) No suit shall lie in respect of anything done in good faith by a Magistrate under this section.
SECTION 141: Procedure on failure to appoint jury or omission to return verdict:
If the applicant, by neglect or otherwise, prevents the appointment of the jury, or if from any cause the jury appointed do not return their verdict within the time fixed or within such further time as the Magistrate may in his discretion allow, the Magistrate may pass such order as he thinks fit, such order shall be executed in the manner provided by Section 140.
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, whether a jury is to be, or has been, appointed or not, 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.
SECTION 143: Magistrate may prohibit repetition or continuance of public nuisance:
A District Magistrate or Sub-divisional Magistrate, or any other 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 or any special or local law. State Amendments GUJARAT.-Same as that of Maharashtra (1). MAHARASATRA (1).-For the words “District Magistrate or Sub-divisional Magistrate, or any other Magistrate empowered by the State Government or the District Magistrate in this behalf” substitute the words “A Presidency Magistrate specially empowered by the State Government in this behalf or a District Magistrate or a Sub-divisional Magistrate or any Executive Magistrate empowered either by the State Government or the District Magistrate in this behalf”. (Bom Act 23 of 1951, S. 2 and Schedule.) (2) After the reorganization of the State of Bombay in 1956, the amendment made in Section 143 by the above-mentioned Bombay Act is extended to the newly added areas of Hyderabad, Kutch and Saurashtra and the region of Vidarbha as from 1-9-1959 by Bom Act XCVII of 1958. MYSORE.-In its application to the State of Mysore, in Section 143 for the words beginning with “a District Magistrate” and ending with “in this behalf”, substitute the words “a Magistrate of the first class specially empowered by the State Government in this behalf or a District Magistrate or Sub-divisional Magistrate, or any other Executive Magistrate empowered in this behalf”.-Mys Act XIII of 1965, S. 27 (1-10-1965). PUNJAB, HARYANA AND CHANDIGARH-For the words “any other Magistrate”, the words any other Executive Magistrate”, shall be substituted. (Punjab Act 25 of 1964.) RAJASTHAN.-Same as that of Maharashtra (1). UNION TERRITORIES (except Chandigarh).-Same as that of Punjab. WEST BENGAL.-for the Words “Sub-divisional Magistrate or any other Magistrate”, “substitute the words “Sub-divisional Executive Magistrate or any other Executive Magistrate.”. West Bengal Act 8 of 1970.
CHAPTER 11: TEMPORARY ORDERS IN URGENT CASES OF NUISANCE OR APPREHENDED DANGER
SECTION 144: Power to issue order absolute at once in urgent cases of nuisance or apprehended danger:
States Amendments GUJARAT.-Same as that of Maharashtra (1). , MAHARASHTRA.-(i) In sub-section (1). (a) after the words “a Chief Presidency Magistrate” insert the words “the Commissioner of Police”. (Bom Act 34 of 1953, S. 5.) (b) for the words and brackets “or of any other Magistrate (not being a Magistrate of the third class)” substitute the words “or of any other Executive Magistrate”. (Bom Act 23 of 1951, S. 2 and Schedule.) (c) after the words “such Magistrate” wherever they occur insert the words “or the Commissioner of Police”. (ii) In sub-section (4), after the word “office” insert the following,- “If the order under this section is made by the Commissioner of Police, the Commissioner of Police may either of his own motion, or on the application of any person aggrieved, rescind or alter such order.” (iii) In sub-section (5) after the word “Magistrate” wherever it occurs insert the words” or the Commissioner of Police”. (Bom Act 34 of 1953, S. 5.) (iv) Sub-section (5-A) inserted in the Code is omitted by Bom Act 71 of 1954, S. 4. (2) After the reorganization of the State of Bombay in 1956, the amendments made in Section 144 by the above-mentioned Bombay Acts are extended to the newly added areas of Hyderabad, Kutch and Saurashtra and the region of Vidarbha as from 1-9-1959 by Bom Act XCVII of 1958. PUNJAB, HARYANA AND CHANDIGARH.-In sub-section (1) for the words and brackets “any other Magistrate (not being a Magistrate of the third class)”, the words “any other Executive Magistrate” shall be substituted. (Punjab Act 25 of 1964) RAJASTHAN.-Same as that of Maharashtra (ii). UNION TERRITORIES (except Chandigarh).-Same as that of Punjab. WEST BENGAL.-Same as that under Section 143. Notes Ex-parte order, when can be passed.-If a Magistrate is satisfied as to the desirabilily for an immediate prevention or speedy remedy, he is well within his jurisdiction to pass ex-parte order under Section 144. 1958 Cr LJ 1554 : AIR 1958 Tri 47. Interference by High Court.-The High Court refused to interfere in revision where the order under Section 144 was passed without jurisdiction but corrected by the District Magistrate. 1958 Cr LJ 1554: AIR 1958 Tri 47. The High Court should be loath to interfere with the exercise of discretion by the Magistrate in passing order under Section 144 unless it be satisfied that the order of the Magistrate was improper or illegal. 1960 Cr LJ 1445 : AIR 1960 Cal 715. Duty of court.-The Court has to see the situation in each case whether the prohibitions in the order under Section 144 in the specified area are justified in the emergency to prevent apprehended danger. AIR 1961 Mani 12. It is the duty of the Magistrate to protect lawful rights, if they can, rather than to muzzle them and to restrain, by the means within their power, unlawful interference with lawful rights. 1959 Ker LJ 746 : 1960 Cr LJ 229: AIR 1960 Ker 78. In deciding to pass an order under Section 144, the District Magistrate has to see as to what are the acts which befare the date on which the order is passed aided and encouraged the movement of the persons concerned and what are the acts which with the likelihood of violence will cause disturbance. AIR 1961 Mani 12. In is well-settled that orders of the Civil Courts should be respected except in cases of imminent danger. 1958 Cr LJ 1554 : AIR 1958 Tri 47. Procedure for filing revision to the High Court.-It is not necessary for a person arrested for violation of the order under Section 144 to wait for his conviction under Section 188, Penal Code, by the Magistrate before filing a revision to the High Court or the Sessions Judge under Section 435 for quashing the order. AIR 1961 Mani 12. Procedure for making objections.-Objection as to the publication of the order under Section 144 is (o be gone into in proceedings under Section 188, Penal Code and not in revision petition under Section 439 and under Article 227 of the Constitution for quashing the order. AIR 1961 Mani 12. Meaning of words.-The words “frequenting or visiting a particular place”, include the residents of the particular place itself and the word “place” would include an area within specified boundaries. AIR 1961 Mani 12. Constitutionality of order.-Order under Section 144 does not affect the legitimate rights of a citizen. AIR 1961 Mani 12. When order has spent itself High Court will not interfere in revision unless exceptional circumstances call for such interference. 1961 MLJ (Cr) 55. Section 144(4) is no bar to direct revision to High Court -AIR 1961 Mani 12. Magistrate has no power to attach property.-1960 MLJ (Cr) 820. Applicability to a dispute to collect toll.-This section is not applicable to a case where the dispute is with respect to right to collect toll in a Bazar. 1958 Cr LJ 1554 : AIR 1958Tri47. Jurisdiction of Magistrate.-Where conditions do not become peaceful even after two months any fresh order to be promulgated under this section would be in continuation of the first which in the eye of law is beyond the jurisdiction of the Magistrate as it would amount to an order for a period exceeding two months. 1960 All LJ 104 : 1960 Cr LJ 865: AIR 1960 All 397. Violation of fundamental rights.-In a petition under Section 439, the petitioner while questioning the order under Section 144 which is against the public generally, on the ground that his fundamental rights are trespassed, cannot be allowed to arrogate to himself the position of a representative of the public, and the reasonableness of the restrictions can be examined in revision in so far as it affects the petitioner’s rights. AIR 1961 Mani 12. Section 155(6), Part II-Constitutional validity-Restriction on fundamental right-Test of reasonableness-Constitution of India, Article 19(l)(b), (c) and (d).- From aplain reading of Section 114(A), Criminal Procedure Code, it is clear that the power conferred on the State Government is an independent power and it is an executive power. It is not expected to be exercised judicially. It is open to be exercised arbitrarily. The directions given in the exercise of that power need not be of a temporary nature. The ambit of that power is very large and it is uncontrolled. Section 144-Whether Constitutional.-Whether Section 144 and Chapter VIII of the Code can be said to be in the interests of public order in so far as the right of freedom of speech and expression, rights of assembly and formation of associations and unions are concerned, and in the interests of general public in so far as they curtail freedom of move- ment throughout the territory of India. The keynote of the power is to free society from menace of serious disturbances of a grave character. Section 144 is directed against those who attempt to prevent the exercise of legal right by others, or imperil public safety and health. So the matter must fall within the restrictions which the Constitution itself visualises as permissible in the interest of public ‘ order or in the interests of the general public. This Court is satisfied that there are sufficient safeguards available to person affected by the order under Section 144 and the restrictioni: are reasonable. The section is not unconstitutional if properly applied and the fact that it may be abused is no ground for striking down-Madhu Limaye v. Sub-Divisional Magistrah, Manghyr, (1970)3 SCC 746. That the provisions of the Code, properly understood, are not in excess of the limits laid down in the Constitution for restricting the freedoms guaranteed by Article 19(l)(a), (b), (c) and (d).-Madhu Limaye v. Sub-divisional Magistrate, Manghyr, (1970)3 SCC 746. Constitutionality of Sections 144, 100, 114 and 117-Validity of order under Section 144-Land Grab Movement-Whether Lawful-Overt act not necessary to justify arrest-Reasonable apprehension of the breach of peace is enough.-S. A.. Dange v. State of U. P., (1970)3 SCC 218: 1971 SCC (Cr) 36. The petitioners were out to defy the order under Section 144, prohibiting any agitation as to Land Garb Movement. There was sufficient publication of the order. A general, order alone was feasible when the movement is organised by Samyukta Socialist Party and the Communist Party of India. Individuals as members of the Party have enough notice of the prohibitory order. The preventive action against the petitioner was justified. R. K. Garg v. Superintendent, District Jail, Saharanpur, (1970)3 SCC 227: 1971 SCC (Cr) 45.
(1) In cases where, in, the opinion of a District Magistrate, a Chief Presidency Magistrate, Sub-divisional Magistrate, or of any other Magistrate [(not being a Magistrate of the third class)] specially empowered by the State Government or the Chief Presidency Magistrate or the District Magistrate to act under the section, [there is sufficient ground for proceeding under this section and] immediate prevention or speedy remedy is desirable, such Magistrate may, by a written order staling the material facts of the case and served in manner provided by Section 134, direct any person to abstain from a certain act or to take certain order with 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, or risk of 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 particular individual, or to the public generally when frequenting or visiting a particular place.
(4) 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.
[(5) Where such an application is received, the Magistrate shall afford to the applicant an early opportunity of appearing before him either in person or by pleader and showing cause against the order; and, if the Magistrate rejects the application wholly or in part, he shall record in writing his reasons for so doing.]
[(6)] No order under this section shall remain in force for more than two months from the making thereof; unless, in cases of danger to human life, health or safety, or a likelihood of a riot or an affray, the State Govern- ment, by notification in the Official Gazette, otherwise directs.
CHAPTER 12: DISPUTES AS TO IMMOVABLE PROPERTY:
SECTION 145: Procedure where dispute concerning land, etc., is likely to cause breach of peace:
States Amendments GUJARAT.-Same as that of Maharashtra (1). MAHARASHTRA.-(1) In sub-section (1). (i) after the words “whenever a” insert the words “Chief Presidency Magistrate” (Bom Act 34 of 1953, Section 6). (ii) for the words “or Magistrate of the first class” substitute the words “or any other Executive Magistrate specially empowered by the State Government in this behalf”. (Bom Act 23 of 1951, Section 2 and Schedule.) (2) After the reorganization of the State of Bombay in 1956, the amendments made in Section 145 by the above mentioned Bombay Acts are extended to the newly added areas of Hyderabed,Kutch and Saurashtra and the region of Vidarbha as from 1-9-1959 by Bom Act XCVII of 1958. PUNJAB, HARYANA AND CHANDIGARH.-In sub-section (1) for the words “Magistrate of the first class”, the words “Executive Magistrate of the first class”, shall be substituted. (Punjab Act 25 of 1964). RAJASTHAN.-(Abu area)-Same as that of Maharashtra 1(i). UNION TERRITORIES (except Chandigarh) Same as that of Punjab WEST BENGAL.-For the words “sub-divisional Magistrate or Magistrate of the first class”, substitute the words “sub-divisional Executive Magistrate or Executive Magistrate of the first class”. (W. B. Act 8 of 1970, Section 2 and Sch. Item 53). Notes Nature of proceedings under Section 145.-The proceedings under Section 145 are summary proceedings calculated to prevent a breach of the peace and viewed against that, what the Magistrate is required to decide is purely the fact of actual physical possession irrespective of the merits or the claim of any of the parties to a right to possess the subject of dispute. 1959 BLJR 813 : AIR 1960 Pat 254. Object of proceedings.-Proceeding under Section 145 are intended to present breach of peace and to continue the status qua in the matter of possession temporarily. 1959 MPLJ (Notes) 10: 1960 All LJ 314. The primary object of Section 145 is to enable a Magistrate to take interim action so that the aggrieved party may obtain possession of the property in due course of law. (1959)25 Cut LT 27 : ILR 1959 Cut 7. For the purpose of proceedings under Section 145 what is more important is not the adjudication of title but possession at the crucial time.-(1960)2 MLJ 463. Action under the section is preventive and not punitive. 1959 Cr LJ 742 : AIR 1959 Mani 30. Legality of orders.-An order under Section 145 is not bad merely because all interested persons are not made parties. 1959 Cr LJ 705: AIR 1959 Cal 266. For legality of order attaching land and referring parties to Civil Court in proceedings under Section 154, see Section 167: (1961) 1 Cr LJ 62: AIR 1961 J and K 4. An order of a Magistrate directing the recovery of a sum of money as damages for alleged waste is wholly without jurisdiction. 1958 Ker LJ 1135: 1959 Cr LJ 196: AIR 1959 Ker 55. The order of the Magistrate dropping the proceedings two and a half years after they were started on the ground that there was no apprehension of the breach of the peace, and without deciding the question as to who was in possession of the property on the evidence before him was totally perverse. The order should not give any advantage to one party at the expense of the other. 1960 Cr LJ 117 : AIR 1960 Tri 1. In the absence of material in record to show the possession of any particular party over the land in dispute at the time of attachment, the proper order to make was that the Magistrate should have withdrawn the attachment and quashed further proceedings irrespective of the decision of the Civil Court declaring any party entitled to possession. 1957 The acceptance of the police report is itself a sufficient ground and the failure to record the grounds of satisfaction is not an illegality. 25 Cut LT 39. Attachment of land in dispute before starting proceedings under Section 145 is without jurisdiction and no question of prosecution under Section 188, Penal Code, for its disobedience arises. There is no power in the Magistrate to attach the land apart from Section 145. 1960 Cr LJ 891 : AIR 1960 Ass 109. Where a Magistrate asks for a Police reports it is the duty of the Police Officer to report, whether there is any apprehension of breach of peace or not. He cannot assume the functions of the Magistrate and report that after investigation he found that the petitioner’s allegations were baseless. AIR 1961 All 38. Where the party has obtained a declaration of possession from a competent Revenue Court,, there is no necessity for a Magistrate to take action under Section 145 unless the decision of the Civil Court or the Revenue Court is of such a prior date as to render it possible for changes in possession to have taken place in the intervening period. 1961 ALJ Powers under Section 145 can be exercised by the court at any stage on any enquiry, trial any other proceeding. The expression “other proceedings” includes proceedings under Section 540. The first proviso to sub-clause (4) of Section 145 precludes a magistrate from summoning witnesses on behalf of parties without the parties having first put in the affidavits of those witnesses but it does not prevent the Magistrate from exercising his powers under Section 540. 1961 ALJ 611. Whether notice to be issued before impleding de novo proceedings necessary.- There is no provision in the section requiring notice to be served on a person who is to be I impleaded as legal representative. In a case of dispute who is the legal representative of the deceased, need not be decided but all persons claiming to be such representatives will be made parties, after their impleading, proceedings are not to be reopened or restarted from the very beginning but are required to be continued from the stage at which deceased party died. 1961 AWR (HC) 107. Where a Civil Court issues a temporay injunction stopping one of two parties engaged in dispute under Section 145, Criminal Procedure Code, restraining the other party from taking possession according to order of Magistrate, held that although the order of the Magistrate is valid it could not be enforced so long as the injunction stood. AIR 1962 All 68. Where in proceedings under Section 145 affidavits sworn before an Oath Commissioner appointed by the High Court were filed as evidence held that such affidavits are no evidence because the affidavits which may be filed in such proceedings must be ones sworn or affirmed by the Magistrate or some person appointed by him. AIR 1963 All 256. Where a Magistrate is unable to come to a decision regarding possession on the date of the preliminary order he must refer the matter to the Civil Court. On receipt of the finding of the Civil Court he must accept the finding of that court and give an order accordingly. 1963 ALJ 1101. In proceedings under Section 145 the magistrate cannot decide questions of title, he is only competent to consider the fact of possession. AIR 1964 All 394. Where a magistrate passes an order without considering the affidavits filed and without discussing them, his order is illegal. He must arrive at a finding regarding possession. AIR 1964 All 394. Where the parties were not directed to file affidavits in support of their respective cam and no objection was made to this defect when the parties adduced oral evidence held that the defect was curable under Section 537. 1954 ALJ 534: 1964 AWR 401. Order under Section 145 is subject to final adjudication of rights by Civil Court.-1960 All LJ 314. Proceedings initiated without a police report.-The High Court in the exercise of its revisional jurisdiction would not go into the question of sufficiency of material which has satisfied the Magistrate, The jurisdiction under this section being of emergency nature, the Magistrate must act with caution but that does not mean that where on an application by one of the parties to the dispute he is satisfied that the requirements of the section are existent he can initiate proceeding without a police report. The word “dispossessed” means to be out of possession, removed from the premises, ousted, ejected or excluded- R. H. Bhutani v. Miss Mani J. Desai, AIR 1968 SC 1444 at 1448, 1449. Overruling (1964)2 Cr LJ 100 (Mys) and AIR 1925 Nag 142.
(1) Whenever a District Magistrate, Sub-divisional Magistrate or Magistrate of the first class is satisfied from a policereport or other information that a dispute likely to cause a breach of the peace exists concerning any land or water or the boundaries thereof, within the local limits of his jurisdiction, he shall make an order in writing, staling the grounds of his being so satisfied, and requiring the parties concerned in such dispute to attend his Court in person or by pleader, within a time to be fixed by such Magistrate, and to put inwritten statements of their respective claims as respects the fact of actual possession of the subject of dispute “[and further requiring them to put in such documents, or to adduce, by putting in affidavits, the evidence of such persons, as they rely upon in support of
(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 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.
[Inquiry as to possession.-(4) The Magistrate shall then, without reference to the merits of the claims of any of such parties to a right to possess the subject of dispute, peruse the statements, documents and affidavits, if any, so put in, hear the parties and conclude the inquiry, as far as may be practicable, within a period of two months from the date of the appearance of the parties before him and, if possible, decide the question whether any and which of the parties was at the date of the order before mentioned in such possession of the said subject : Provided that the Magistrate may, if he so thinks fit, summon and examine any person whose affidavit has been put in as to the facts contained Provided further that, if it appears to the Magistrate that any party has within two months next before the date of such order been forcibly and wrongfully dispossessed, he may treat the party so dispossessed as if he had been in possession at such date : Provided also that, if the Magistrate considers the case of one of emergency, he may at any time attach the subject of dispute, pending his decision under this section.]
(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.
Party in possession to retain possession until legally evicted.- (6) If the Magistrate decides that one of the parties was [or should under the [second proviso] to sub-section (4) be treated as being] in such possession of the said subject, he shl 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 [second proviso] to sub-section (4), may restore to possession the party forcibly and wrongfully dispossessed.]
[(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 purpose of such proceeding is, all persons claiming to be representatives of the deceased party shall be made parties thereto.]
[(8) If the Magistrate is of opinion that any crop or other produce of the property, the subject of dispute in a procceeding 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.]
SECTION 146: Power to attach subject of dispute:
Notes Scope.-Section 146 cannot be invoked before inquiry is initiated on merits. 1960 Cr LJ 532 : AIR 1960J and K 66. Procedure.-The procedure adopted by the Magistrate as not having heard the objections of the parties to the report of S.D.C. appointed for local inquiry, which as appeared from the order, was neither acted upon, was highly improper and the ensuing order could not be allowed to stand. Further) the Magistrate had no jurisdiction to dispose of the case on a day to which it had not been posted for hearing. 1960 Cr LJ 1643: AIR 1960 If in spite of total disregard of the rules of procedure, justice has been done, setting asideif the final order is not called for simply because the procedure adopted was wrong. 1959 Cr LJ 321 : AIR 1959 J and K. 16. A suit having been filed in a revenue Court for permanent injunction, the plaintiff makes an application under Section 145, Cr. P. C. The Magistrate should proceed with it after attaching the field. 1959 Raj LW 186: 1959 Cr LJ 908: AIR 1959 Raj 153. As soon as a Civil Court decides the question of possession so referred to it, the referring Magistrate must dispose of the proceedings in conformity with the decision of the Civil Court in view of Section 146(I.B). 1959 Cr LJ 705: AIR 1959 Cal 366. Irrelevant.-The mere pendency of a suit in a Civil Court is wholly an irrelevant circumstance and does not take away the dispute which had necessitated a proceeding under Section 145. The possibility of a breach of peace would atill continue. 1960 Cr LJ 1112: AIR 1960 Mys 203. Under Section 145 the Magistrate must take all evidence and come to a definite decision, that is, there can be no reference to the Civil Court by him. 1959 Cr LJ 743 : AIR 1959 Mani 29. On a Civil Court having made delivery of possession of the land to one of the parties the Magistrate is precluded from investigating further. 1959 Pat LR 21. Magistrate need not go into the question of rights of the parties.-1960 BLJR 328: 1960 Cr LJ 1477: AIR 1960 Pat 505. Powers and duties of Magistrates.-The proviso to sub-section (4) of Section 145 does not preclude a Magistrate from calling as a witness any other person whose affidavit has not f been filed to examine him, if he so desires, in order to decide the question of possession. 1959 Raj LW 473: 1960 Cr LJ 116: AIR 1960 Raj 15. The provision in Section 145 empowering a Magistrate to attach the subject of dispute cannot be dissociated from the subject-matter of the enquiry and the question of possession involved in such enquiry. 1960 Cr LJ 582: AIR 1960 J and. K. 66. So long as one person claims to be in possession to the exclusion of others and alleges that some other person is unlawfully by force interfering with his possession, the Magistrate apprehending breach of the peace is justified to take action under Section 145, Cr. P. C. The enactment of sub-section 15) of Section 145, Cr. P. C., does not derogate from the Magistrate his power to drop the proceedings himself, if he is satisfied as to non-likelihood of any further breach of peace, 1959 MPLJ (Notes) 179. A Magistrate can pass order of disposal of the property which is the subject of dispute in proceedings under Section 145(5) but he will be debarred from doing so if he has to enter into an enquiry for that end. 1958 All LJ 515. In order to appoint a Receiver of any immovable property, the Magistrate must first attach the same. 1960 MPLJ (Notes) 73. The foundation of the jurisdiction of the Magistrate under Section 145 is an apprehension felt by him with regard to the breach of the peace. 1959 Jab LJ 246: 1959 MLJ 725. Under Section 145(1), read with sub-section (9), there was no such limitation upon the power of the Magistrate to examine the witnesses. (1959) Nag LJ (Notes) 43. Type of possession.-As in Civil law Section 145, Cr. P. C., contemplates a case of actual physical possession and even in a dispute between master and servant, a person in possession of immovable property can only be dispossessed in due course of law, 1959Raj LW 140: 1959 Cr LJ 379: AIR 1959 Raj 63. The Magistrate can restore the party to possession from whom possession was taken at the time of attachment, provided there is clear material on the record to show that. 1960 Raj LW 37 : 1960 Cr LJ 1138 : AIR 1960 Raj 216. Under Section 145, the Magistrate has to decide as to the fact of actual possession of the subject of dispute on the date of the order. 1958 BLJR 174: 1959 Cr LJ 1205 : AIR 1959 Pat 476. Even a person in constructive possession has a right to come to Court if such possession is interfered with. 1957 Raj LW 507 : 1959 Cr LJ 236: AIR 1959 Raj 50. A provisional order of a Magistrate undersection 145, Cr. P. C., in regard to possession irrespective of the rights of the parties cannot enable a person to resist the suit under Section 180 of the U. P. Tenancy Act. 1959 All LJ 557 : 1959 Cr LJ 1223 : AIR 1959 SC 960. Mere exercise of an isolated or stealthy act of possession cannot constitute actual possession in the eye of law. 1960 BLJR 328: 1963 Cr LJ 1477: AIR 1960 Pat 505. Order covering larger area than that contested in the proceeding must be held to be good to that extent. 1958 Pat LR 352 : 1959 Cr LJ 634: AIR 1959 Pat 196. Function of the Magistrate.-A police officer on being asked by a Magistrate to report as to the apprehension of the breach of the peace, cannot assume the functions of the Magistrate inasmuch as he reports that the petitioner’s allegations were baseless. 1960 All LJ 782: (1961)1 CrLJ 15: AIR 1961 All 38. Order under Section 145(6) does not decide party’s title.-1959 All LJ 557 : 1959 Cr LJ 1223 : AIR 1959 SC 960. Decision of a Magistrate not binding on a Civil Court.-AIR 1959 Pat 406. In a proceeding under Section 145, the Magistrate has not to enter into question of title or the right to possess, and he can invoke his jurisdiction only in existence of dispute likely to cause breach of the peace. 1959 CrLJ 89: AIR 1959 Tri 1. The fact that the property was under attachment under Section 145(4) in no way affects the legality and effectiveness of the delivery of possession granted by the Civil Court. 1959 Pat LR 21. When Civil litigation is pending, the Magistrate should choose Section 107 as a choice between Section 145 and Section 107. 1959 Mad LJ (Cr) 211: 1959 Cr LJ 621 : AIR 1959 Mys 122. Use of word ‘wrongfully’.-The use of the word ‘wrongfully’ does not necessitate any investigation into the claim or right of the person who dispossesses, or in other words, it is not necessary to decide whether he is the rightful owner or a trespasser. 1960 BLJR 328: 1960 Cr LJ 1477 : AIR 1960 Pat 505. Parties not mentioned in the order are not bound by it.-Persons not mentioned as parties, are not bound by order under Section 145. However, this is no ground to vacate that order even against such persons. 1958 Pat LR 352: 1959 CrLJ 634: AIR 1959 Pat 196. Effect of amendment introduced.-Viewed against the amendment effected by Section 2, Bombay Separation of Judicial and Executive Functions Act, the order passed by the Magistrate concerned who was to function as a Judicial Magistrate from 1-9-59 was without jurisdiction. 1960 Nag LJ (Notes) 108. 1. Defect of parties: Effect.-Proceedings under Section 145 cannot fail on account of defect of parties or on the ground of a proper party not impleaded. 1959 Cr LJ 970: AIR 1919 Cal 505. Dispute as to right to collect toll.-In regard to a dispute with respect to right to collect toll in a Bazar, the proper course for a Magistrate is to have recourse to Section 145 or Section 147 rather than to Section 114. 1958 CrLJ 1554: AIR 1958 Tri 47. Authorised agents are as much disputants as owners.-Authorised agents who are really disputants before the Magistrate, cannot oust the Magistrate of his jurisdiction to proceed with the case simply because owners are not on record. 1959 Raj LW 140: 1959 Cr LJ 379:AIR 1959 Raj 63. Right of intervenor tenants.-The intervenor tenants who were not parties to the proceedings before the Board were not bound by its decision and as such proceedings under Section 145 at the instance of intervenor party could not be dropped by the Magistrate. 1960 BLJR 384. Effect of notice.-But once it is found that the notice of attachment of the land in dispute was duly served at the spot it necessarily follows that all persons interested in the land were aware of the fact that a proceeding under Section 145 had been started. 25 Cut No rules in Section 145 to regulate sales.-Section 145, Cr. P. C., does not provide rules regulating sales held under this section. The only thing to be considered is as to the conduct of the officer conducting the sale. 1958 Mad LJ (Cr) 338: 1959 Cr LJ 340: AIR 1959 Mys 50. Sapurdar’s custody.-In a case of attachment of standing crop under Section 145, Cr. P. C., and given in custody of sapwdar who in absence of evidence of misappropriation, commits no offence. 1960 Cr LJ 780: AIR 1960 All 380. Mere contravention of Section 145(1) does not justify vacating order.-Unless justice has been miscarried, the mere contravention of the provisions of S”ction 145(1), Cr. P. C., would not justify setting aside the order. ILR (1957)9 Ass 75: 1959 Cr LJ 303: AIR 1959 Ass 54. After order under Section 145, no proceeding under Section 147 is maintainable. -It was not open to the party after the earliest order was passed to initiate another proceeding under Section 147 in regard to the offerings alone dissociated with the land containing the temple. 1960 Pat LR 18: 1960 CrLJ 506: AIR 1960 Pat 189. Presumption as to the state of affairs.-There is presumption that the state of affairs which has once existed, continues until contrary is shown and for this purpose the judgment of the Civil Court can be looked into. 1959 MPLJ (Notes) 10. Default of complaining party.-If the complaining party is absent, the Magistrate can proceed ex park and hear the opposite party present and his witnesses. 1959 Cr LJ 774: AIR 1959 Tri 25. Police not to decide suitability of action.-On reference by a Magistrate, the police : are bound to make a report under Section 202 but they cannot decide as to the suitabitity of action under Section 145. 1959 Cr LJ 742 : AIR 1959 Mani 30. There is no bar in law to fresh proceedings under Section 145 when the application is made within two months of the date of the obstruction resulting in dispossession of a party. 1959 Raj LW 140: 1951 Cr LJ 379 : AIR 1959 Raj 63. The principles of equity do not apply to an order passed by a Magistrate under Section 145(4), Cr. P. C. 1959 All LJ 116: 1959 Cr LJ 261 :AIR 1959 All 141 (FB). Equitable principles cannot be engrafted upon a statute.-There is no warrant to engraft equitable principles upon a statutory fiction and deem the order to have been passed at the date of the petition, when in fact it was not on that date. (1960)2 Andh WR 383. Pleader commissioner’s report need not be proved.-By virtue of the amendments made in the Code in 1955, the report of pleader commissioner need not be formally proved, but his opinion as to the possession of any party as not being based upon his personal knowledge cannot be taken into consideration. 1960 Pat LR 30: AIR 1960 Pat 240. Invocation of inherent powers not allowed under Section 145.-Inherent powers of the High Court under Section 561-A, Cr. P. C., cannot be invoked in a matter under Section 145, Cr. P. C” as the revisional powers themselves had to be conferred by a statute and were being exercised only by reason of Section 435. (1959)1 Andh WR 61: 1959 Mad LJ (Cr) 29. Although by reason of the amendment of Section 145, Cr. P.C.., examining of witnesses is no longer necessary and the Magistrate can come to his decision on the question of possession on the basis of affidavits filed by the parties, the Magistrate should consider those affidavits as they take the place of the oral evidence. 1960 BLJR328: 1960CrLJ1477l MR 1960 Oat 505. Administrative order should appear as such on the face of it.-Any administrative order should ex facie be made to appear distinctive as not to give scope for further proceedings. ( 1959)2 Andh WR 64 : 1959 MLJ (Cr) 550. . Additional Sessions Judge competent to suspend order under Section 145.-In a revision application against a final order in proceedings under Section 145, the Additional Sessions Judge is competent under Section 435(1), Cr. P. C., to suspend the execution of any sentence or order. 1959 Nag LJ (Notes) 35. fresh application can be based on the same facts.-Where a petition under Section 145 is dismissed for want of a specific allegation regarding the danger of a breach of the peace, a fresh petition can be based on the same facts and the Magistrate cannot be said as reviewing his prior judgment so as to contravene the provisions of Section 369, Cr. P. C.; nor Section 403 has application to such a case as dismissal of complaint is not acquittal, 62 PLR 568: 1960 Cr LJ 1232 : AIR 1960 Punj 467. There is nothing in the Code to preclude an applicant to make a fresh application under Section 145, the previous application having been dismissed in default, provided his second application has been filed within two months of the alleged deprivation of possession. 1957 Raj LW 509: 1958 Cr LJ 1548: AIR 1958 Raj 351. Under Section 145 as amended by Act XXVI of 1955, only the affidavits of witnesses should be put in evidence, and if needs be only those witnesses are to be examined whose affidavits have already been put in. 1959 Cr LJ 138t: AIR 1959 All 763 A Magistrate is competent to call and examine any person to decide question of possession even in absence of his affidavit. 1960 Or LJ 116: AIR 1960 Raj 15. Failure by Magistrate to consider the affidavits filed vitiates his order. 1958 Pat LR 299: 1959 Cr LJ 1098: AIR 1959 Pat 430. The Magistrate must consider affidavit and give reasons for accepting the affidavit of one or the other party. He cannot ignore them on the ground that there is affidavit against affidavit and base his finding of possession on documents or other circumstances. 1960 BLJR 419: 1960 Cr LJ 1486: AIR 1960 Pat 513. In view of the latest amendment made in Section 145, Cr. P. C., it is necessary not to examine witnesses in Court, but it does not follow that there is no necessity even to consider the affidavits. 1960 Pat LR 30: AIR 1960 Pat 240, In every case under Section 145, the Magistrate is bound to summon both the parties and give them an opportunity to put in written statements on affidavits and such documents as they choose to file. 1959 Nag LJ (Notes) 7. Proper orders.-Unless the petitioner was prohibited from going over to the land in dispute by order, it is not a proper order of attachment. 1960 Cr LJ 891 : AIR 1960 Ass 109. Where records show actual delivery of possession of the property to the petitioner and the report of the responsible Police Officers alio show that the petitioner had actually raised the crops and there was no apprehension of the breach of the peace, the action under Section 145 is clearly unwarranted. 1960 MLJ (Cr) 286. Where the Magistrate totally disregards the procedure as amended, he commits an error. 1959 Jab LJ 246: 1959 MPLJ 725: 1959 MPC 409. A Magistrate can pass ancillary orders regarding the custody of the attached property but he should not evade the provisions of Cr. P. C. by adopting a short-cut to save himself from the trouble of hearing several proceedings under Section 145. 25 Cut LT 340: 1959 Cr LJ 624: AIR 1959 On 81. Under the new procedure only the affidavits suffice for proceeding under.- Under the old proceedure the parties were entitled to examine witnesses in support of their respective contentions whereas under the new procedure affidavits of parties and their witnesses would suffice, and the trial of a pending proceeding in accordance with the new procedure prescribed by the 1955 amendment is not invalid. ILR 1959 Cut 551: 1960 Cr LJ 984: AIR 1960 Ori 61. Where parties have had recourse to a Civil Court, it is still open to the Magistrate to invoke the provisions of Section 107 of Cr. P. C. 1959 MLJ (Cr) 211 : 1959 Cr LJ 621 : AIR No retrospective action.-All proceedings under Section 145 instituted prior to its amendment must be decided in accordance with the procedure then in force and not according the amended procedure. 1959 BLJR 23: 1959 Cr LJ 761: AIR 1969 Pat 284. High Court not to interfere with findings of fact.-The extraordinary jurisdiction of the High Court under Article 226 of the Constitution of India is not to be exercised for interfering with findings of fact. 1958 Ker LT 1067: 1959 Cr LJ 1082: AIR 1959 Ker 275. The High Court will not interfere in revision with a finding of fact under Section 145, Cr. P. Code. 1959 Cr LJ 705: AIR 1959 Cal 366. In cases of miscarriage of justice, the High Court has jurisdiction to interfere in revision in respect of order under Section 145. 1995 Andh LT 610. The High Court’s power under Section 439, Cr. P. C., and under Article 227 of the Constitution are primarily intended to see that the subordinate Courts do not discard the canons of law and take to what they consider as short cuts to justice. 1959 Mad LJ (Cr) 338 : 1959 Cr LJ 340: AIR 1959 Mys 50. Power of the Magistrate.-On reversal of the decision of competent Court in appeal, the Magistrate has power to re-attach the property in dispute, and he does not become functus officio after his first order in favour of a party successful in the first Court. 1959 All LJ 281 : 1959 Cr LJ 1257 :AIR 1959 All 671. The Magistrate may make a reference to the Civil Court only for the purpose of deciding about possession, but the criminal proceeding even on reference does not change its character and retains its old moorings. 1959 All LJ 365:1959 CrLJ912; AIR 1959 All 467. Magistrate is not invested with power to recover damages from a lessee under receiver appointed by him for alleged waste by the lessee. 1959 Cr LJ 196: AIR 1959 Ker 55. Limitation.-If an enquiry is not concluded by the Civil Court within the period of three months as prescribed by Section 146(l-B),it cannot atall vitiate the decision of the Court. 1959 Cr LJ 705: AIR 1959 Cal 366. Finding of a Civil Court given in reference can be challenged only by a regular suit and not by means of writ petition. 1960 Cr LJ 1279 : AIR 1960 All 599. Under sub-section (1-A) of Section 146 it is not open to the Civil Court to call for further evidence. All that is necessary under Section 146 is that the parties must be given ample opportunity to place their respective cases before the Civil Court. 1960 BLJR 428; 1960 Cr LJ 1487 : AIR 1960 Pat 519. Whether offence committed.-Where the wall under attachment under Section 146, Cr. P. C., was in adilapidated condition and on account of the marriage of a girl in the family of one of the parties the wall was repaired without the permission of the Court, no offence was committed under Section 188, Penal Code. 1960 Cr LJ 387: AIR 1950 Pat 125. Perversity of the order.-For perversity of the order dropping proceedings after two and a helf years without deciding question of possession, see Section 145 (4), (5), supra. 1960 CrLJ 1 17: AIR 1960 Tri 1. Mansif’s Jurisdiction.-A dispute concerning property worth more than Rs. 10,000 can be referred to the Munsif under Section 146 (1), because in the dispute, it is not the proprietary right of property which is involved but as to who was in possession at particular time, 1960 Cr LJ 1279: AIR 1960 All 599. High Court’s powers-The restriction placed on the revisional powers of the High Court by Section 146 (l-D),Cr. P. C, is a wise restriction conceived in the public interest and involves no invasion of the fundamental right or diminution of the paternal and supervisory jurisdiction of the High Court. 1960 Cr LJ 489 : AIR 1960 Mad 169. The High Court’s power in revision is limited to ascertaining whether the Criminal Courts have implemented the decision of the Civil Courts. (1958)2 Mad LJ 619: 1959 Cr LJ 335 :AIR 1959 Mad 111. Sanctity of the Civil Court’s findings.-There cannot be even indirect or collateral attack on the finding of Civil Court through an appeal or an application for revision or revision of the order of the Magistrate passed under Section 146 (1-B). 1958 All LJ 270: 1959 Cr LJ 1043: AIR 1959 All 568. Even if a property had been kept under attachment by the Magistrate without jurisdiction, the High Court would not in revision deliver the property to a party declared by a competent Court not to have any title to it. 1959 All LI 281: 1959 CrLJ 1257 :AIR 1959 All 671. “Farther evidence”, meaning of.-The expression “further evidence” only means “evidence which is not already on record”. It may consist of statement of parties, of other witnesses or of documents, only restriction being that evidence should not already be on record. 1961 AWR (HC) 107. Where after proceeding under Section 145 have been referred to the Civil Court, the High Court passes an order of stay on a transfer application, the Civil Court is immediately divested of jurisdiction and cannot proceed with the matter even though the stay order hid not reached the Court but was merely brought to the notice of the Court. If the Civil Court had no knowledge of the stay order and any proceedings are continued such proceedings would be a nullity. AIR 1962 All 80. Where a Civil Court had on a reference under Section 146 given a finding it cannot be directly challenged, as it is not subject to appeal, review or revision. The order of the Magistrate based on the civil court finding therefore cannot be attacked in a revision against the order of the magistrate. 1963 ALJ 1101. The Code of Criminal Procedure does not provide for the setting aside of an ex parte order, consequently every order whether passed ex parte or otherwise must be passed on merits and in the eyes of law an ex parte order would be at par with an order passed on merits, the only difference would be that on contest there would be evidence of both the parties. Where evidence had been taken and thereafter a reference made, the ex parte order passed on reference would be a one sided order, but would be an order passed on consideration of the evidence of both parties. No restoration application would be maintainable. 1964 ALJ 668. The expression “Civil Court” used in Section 146 includes Revenue Courts as well and the word “jurisdiction” used in the expression ‘Civil Courts of competent jurisdiction’ obviously means territorial jurisdiction. AIR 1963 All 17. To a reference made to the Civil Court under Section 146 (1), the procedure laid down in that section is applicable and the Civil Court cannot engraft the provisions of Order IX, Civil Procedure Code to such a proceeding. 1964 ALJ 635.
[(1) If the Magistrate is of opinion that none of the parties was then in such possession, or is unable to decide as to which of them was then in such possession, of the subject of dispute, he may) attach it, and draw up a statement of the facts of the caif and forward the record of the proceeding to a Civil Court of competeiJ jurisdiction to decide the question whether any and which of the parties wf in possession of thei subject of dispute at the date of the order as explained ig sub-section (4) of Section 145; and he shall direct the parties to appeff before the Civil Court on a date to be fixed by him: Provided that the District Magistrate or the Magistrate who has attachef 60. by Act 26 of 1955, S. 19, for the former sub-section (1). the subject of dispute may withdraw the attachment at any time, if he is satisfied that there is no longer any likelihood of a breach of the peace in regard to the subject of dispute.
(1-A) On receipt of any such reference, the Civil Court shall peruse the evidence on record and take such further evidence as may be produced by the parties respectively, consider the effect of all such evidence, and after hearing the parties, decide the question of possession so referred to it.
(1-B) The Civil Court shall, as far as may be practicable, within a period of three months from the date of the appearance of the parties before it, conclude the inquiry and transmit its finding together with the record of the proceeding to the Magistrate by whom the reference was made; and the Magistrate shall, on receipt thereof, proceed to dispose of the proceeding under Section 145 in conformity with the decision of the Civil Court.
(1-C) The costs, if any, consequent on a reference for the decision of the Civel Court, shall be costs in the proceedings under this section.
(1-D) No appeal shall lie from any finding of the Civil Court given on a reference under this section nor shall any review or revision of any such finding be allo wed.
(1-E) An order under this section shall be subject to any subsequent decision of a Court of competent jurisdiction.]
(2) When the Magistrate attaches the subject of dispute, he may, if he thinks fit [and if no receiver of the property, the subject of dispute, has been appointed by any Civil Court], appoint a receiver thereof, who, subject to the control of the Magistrate, shall have all the powers of a receiver appointed under the Code of Civil Procedure (1882) : [Provided that, in the event of a receiver of the property, the subject of dispute, being subsequently appointed by any Civil Court, possession shall be made over to him by the receiver appointed by the Magistrate, who shall thereupon be discharged.]
SECTION 147: Disputes concerning rights of use of immovable property, etc:
State Amendments GUJARAT.-Same as that of Maharashtra (1). MAHARASHTRA.-(1) In sub-section (1), for the words “or Magistrate of the first class” substitute the words “or any other Executive Magistrate specially empowered by the State Government in this behalf”, (2) After the reorganization of the State of Bombay in 1956, the amendment made in Section 147 by the above-mentioned Bombay Act is extended to the newly added areas of Hyderabad, Kutch and Saurashtra and the region of Vidarbha as from 1-9-1959 by Bom Act XCVII of 1958. PUNJAB, HARYANA AND CHANDIGARH.-In sub-section (1), for the words “Magistrate of the first”, the words “Executive Magistrate of the first clsas” shall be substituted. RAJASTHAN : Abu Area.-Same as that of Maharashtra (1). UNION TERRITOTIES (except Chandigarh).-Same as that of Punjab WEST BENGAL,-Same as that under Section 145. (W. B. Act 8 of 1970, Section 2 and Schedule, Item 54. Notes APPLICABILITY.-Section 157 will apply when a right is claimed with respect to the user of the land in dispute. 1959 Raj LW332. POWER OF MAGISTRATE.-A Magistrate is authorised to pass a mandatory order directing the removal of an obstruction. 1959 Cr LJ 878: 1959 Mad LJ (Cr) 413: AIR 1959 Mys 177. The power conferred on a Magistrate under Section 147 is an effective power and not a nominal one. 1959 Cr LJ 878: 1959 MLJ (Cr) 413: AIR 1959 Mys 177. Section 147(2) allows a Magistrate to prohibit the doing of an act and not to direct the doing of an act. 1959 Cr LJ 587 : 63 CWN 449 : AIR 1959 Cal 314. The power to pass a prohibitory order necessarily implies power to pass such orders as may be necessary to effectuate the prohibitory order. 1960 CrLJ 794: AIR 1960 Ass 90. Duty of Magistrate.-Proper course for a Magistrate i to have recourse to Section 145 or Section 147 in a dispute with respect to right to collect toll in a Bazar. 1958 Cr LJ 1554: AIR 1958 Trip 37. Sections 145 and 147 contrasted.-There is no fundamental difference between the proceedings under Section 145 and Section 147, Cr. P. Code. The order which can be passed under Section 147 is one prohibiting interference with the exercise of the right claimed whereas an order under Section 145(6) is in the nature of a declaration in regard to the holding or of possession by a party until evicted therefrom in due course of law. 1960 Cr LJ 794: AIR 1960 Ass 90. The trying Magistrate should examine the inspecting Magistrate as a witness so that the party affected adversely by his report might cross examine him. 1959 Cr LJ 587: 63 CWN 449: AIR 1959 Cal 314. Defective notice.-Even if the notice was defective, the entire proceeding will not be vitiated. 1960 Cr LJ 794: AIR 1960 Ass 90. In proceedings under Section 147 a Magistrate may attach the land or water involved in the disputes before him for the duration of pendency of the proceedings before bihim. 1963 ALJ 784.
(1) Whenever any District Magistrate, Sub-divisional Magistrate or Magistrate of the first class is satisfied, from a police-report or 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 as explained in Section 145, sub-section (2) (whether such rights be claimed as an easement or otherwise), within the local limits of his jurisdiction, he may make an order in writing listing the grounds of his being so satisfied and requiring the parties concerned in such dispute to attend the Court in person or by pleader within a time to be fixed by such Magistrate and to put in written statements of their respective claims, and shall thereafter inquire into the matter [in the manner hereinafter provided.]
[1-A) 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, as far as may be, be applicable in the case of
(2) If it appears to such Magistrate that such right exist, he may make an order prohibiting any interference with the exercise of 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 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 institution.
(3) If it appears to such Magistrate that such right does not exist, he may make an order prohibiting any exercise of the alleged right.
(4) An order under this section shall be subject to any subsequent decision of a Civil Court of competent jurisdiction.]
SECTION 148: Local inquiry:
Notes Powers.-A successor Magistrate can assess costs in accordance with direction of the Magistrate making the final order under Sections 145, 146 or 147. 1958 Pat LR 233: 1959 Cr LJ 506: AIR 1959 Pat 151. The Magistrate has power to depute amin or pleader to survey subject of dispute and prepare case map. 1959 Cr LJ 1460 (2) : AIR 1959 Pat 549. It is entirely discretionary with the Sub-divisional Magistrate, as to whether, it is neccssary to hold a local inspection or not, of course having regard to the material on record. 1959 Pat LR 139: 1959 Cr LJ 1460: AIR 1959 Pat 549. Asuccessful party is not entitled under S. 141 (3) to get the costs incurred by him in the revisional Court. Magistrate has wide discretion for the assessment of the amount of costs but it must be reasonable. 1958 Pat LR 233 : 1959 Cr LJ 506: AIR 1959 Pat 151. Limitation.-No period of limitation is prescribed for assessment of costs in Section 148(3) or any other provision of the Code, but delay should not be unreasonable. 1958 Pat LR 233: 1959 Cr LJ 506: AIR 1969 Pat 151. Nature of local enquiry.-Where the Magistrate directed the local commissioner to merely survey the disputed land and prepare map, it cannot be urged as a local enquiry within the meaning of Section 148, Cr. P. Code. 1959 Pat LR 139: 19 59 Cr LJ 1460 (2): AIR l959 Pat 549.
(1) Whenever a local inquiry is necessary for the purposes of this chapter, any 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) Order as to costs.-When any costs have been incurred by any party to a proceeding under this chapter * * * the Magistrate passing a decision under Section 145) Section 146 or Section 147 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, [Such costs may include any expenses incurred in respect of witnesses) and of Pleaders’ fees, which the Court may consider reasonable].
State Amendments GUJARAT.-(1) Same as that of Maharashtra (2) Chief Magistrate of the city of Ahmedabad has the powers and exercises the jurisdiction of a Chief Presidency Magistrate.-See Guj Act XIX of 1961, Section 14(3).
MAHARASHTRA.-In sub-section (1), after the words “any District Magistrate” insert the words “a Chief Presidency Magistrate” (Bom Act 34 1953, S. 7).
WEST BENGAL.-The words “sub-divisional Magistrate” substituted by the words “Sub-divisional Executive Magistrate”.-(W. B. Act 8 of 1970, Section 3 and Schedule, Item 55).
CHAPTER 13: PREVENTIVE ACTION OF THE POLICE:
SECTION 149: Police to prevent congnizable offences:
Every police-officer may interpose for the purpose of preventing, and shall, to the best of his ability, prevent the commission of any cognizable offence.
SECTION 150: Information of design to commit such offences:
Every police-officer receiving information of a design to commit any cognizable offence shall communicate such information to the police officer to whom he is subordinate, and to any other officer whose duty it is to prevent or take cognizance of the commission of any such offence.
SECTION 151: Arrest to prevent such offences:
A police-officer knowing of a design to commit any cognizable offence may arrest, without orders from a Magistrate and witut a warrant, the person so designing, if it appears to such officer that the commission of the offence cannot be otherwise prevented, g Notes Necessity.-Whether it is necessary to call for report from Sub-magistrate, See Section 107(3). 1960 Cr LJ 907 : AIR 1960 Ker 227. Procedure and practice.-For procedure and practice when arrest has been made under Section 151, fee Section 167, infra. 1969 Cr LJ 1212 : AIR 1960 Ker 297. Conditions.-It is essentially a matter of satisfaction of the police-officer himself to see that the two conditions as mentioned in Section 151 are really present in a given case so as to justify action being taken under the section. 1960 Ker LJ 463: 1960 Cr LJ 1212: AIR 1960 Ker 297. Where an arrest is made by police without a warrant from a Magistrate under Section 151, it does not mean that the provisions of Section 167 do not apply. 1963 ALJ 744: 1963 AWR 439. Land Grab Movement.-Whether arrest and remand is legal as there was no production before Magistrate- There is nothing in law which requires personal presence of an accused before the Magistrate because that is only a rule of caution for Magistrate before granting remand at the instance of the police. The legality of the petitioner’s detention cannot be considered to be illegal because he was kept in detention unders proper orders of remand as an under-trial prisoner-Pranb Chatterjee v. State of Bihar, 1970 (3) SCC 926.
SECTION 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 or injury of any public landmark or buoy or other mark used for navigation.
SECTION 153: Inspection of weighst and measures:
Notes Information report identified.-The information given to the Magistrate under Section 153(2) is as much a report as that under Section 173, Cr. P. C. 1959 Raj LW 138 1959 CrLJ 1112 : AIR 1959 Raj 191.
(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.
PART 5: INFORMATION TO THE POLICE AND THEIR POWERS TO INVESTIGATE:
CHAPTER 14:
SECTION 154: Information in cognizable cases:
Every information relating to the commission of a cognizable offence if given orally to an officer in charger of a police-station, shall be reduced to writing by him or under his direction, and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf. First Information Report.-The special significance of the First Information Report lies in the fact that it is a record of the earliest information about an alleged cognizable offence, a statement given before the circumstances of the crime can be forgotten or embellished (1960) MLJ (Cr) 695. The first information report is not substantive evidence, but can only be used to corroborate or contradict the evidence of the information given in Court or to impeach his credit 1960 Cr LJ 532: AIR 1960 S.C 391: 1959 Ker LJ 1083: AIR 1958 Ker 142: AIR 1966 SC 119:1966 CrLJ 100. For value of First Information Report, see Section 168, infra. 1951 Raj LW 505. Where first information report regarding an occurrence was based upon the particulars furnished by another person, direct evidence furnished by the eye-witnesses particularly when their names find mention in the first information report will be given credence. The first information report is not by itself a substantive piece of evidence and the statement made therein cannot be considered as evidence unless it falls within the purview of Section 32, Evidence Act, but it can be looked into to remove a doubt as to the name of an eye-witness given in the list of witnesses. 1961 MPC 82: 1961 (1) Cr LJ 270: AIR 1961 The self-recorded statement of the Police Officer, after the arrest of the accused and drizure of the article, is not really the first information; he should have recorded the statement of the actual person telling him that the accused was actually engaged in counterfeiting coins. 1959 MLJ (Cr) 926. Even an incomplete first information report can be used to corroborate the statement of the eye witnesses. 25 Cut LT 216. A telegram cannot be treated as a first information report in the teeth of very language of Section 154 as it is not a signed document. 1959 Cr LJ 237 : AIR 1959 Tri 11. Telephonic message that a person was lying injured without indicating that some offence was committed-that information given by him could not be treated as the F. I. R Shkharam v. State of Maharashtra, 1969 (3) SCC 730. The criptic and annonymous oral message which did not in terms clearly specify the cognizable offence cannot be treated as First Information Report. The mere fact that this information was the first in point of time does not by itself clothe it with the character of First Information Report. Topinder Singh v. State of Punjab, 1970 (2) SCC 113: (1970) SCC (Cr) 328: AIR 1970 SC 1566. The condition as to the first information report being reduced to writing and that it shall be signed by the person giving it seems to be a mere matter of procedure and failure to observe the procedure as to signature would not make the information given, if it is reduced to writing, inadmissible. 61 Born LR 1161 : 1960 Cr LJ 461 : AIR 1960 Bom 146. It was argued that the first information report was not properly recorded in the prescribed form but was written down on a piece of paper and it was copied into the register for the first information reports. But several first information reports are recorded on plain pieces of paper and then transcribed into the first information report register. In fact if a written report is brought, it is verbatim copied into the first information report register. So F.I.R. not improper. Narnyan Nathu Naik v. Stale of Maharastra, (1970)2 SCO 101 : 1970 SCO (Cr.) 316. F.I.R. Filed promptly-Value.-When the first information report was given very soon after the occurrence, the possibility of putting up a false version is remote. A great deal of importance should not be attached to the promptness with which the first information was lodged. The brother of the deceased was an Advocate and the infermant was his clerk. They could certainly have quickly thought out what version to give. It is true that the importance of a first information report made promptly cannot be minimised. The object of Section 154, Criminal Procedure Code is to obtain early information of the alleged criminal activity, to record the circumstances before there is time for them to be embellished or forgotten. 1971 SCC (Cr) 593. F.I.R. is not indispensable requisite for investigation-AIR 1962 Cal 641:1 (1962)2 Cr LJ 751. F. I. R. at the instance of the accased.-Where the first information report in made, by the accused himself, parts of it which can be properly separated from the confessing part, are admissible in evidence as first information. 1960 Cr LJ 520: AIR 1960 Raj 101 : AIR 1960 SC 119: 1966 Cr LJ 100. Statement in the first information report is admissible at the own admission of the accused of a fact depriving him of the right of private defence 1959 All LJ 340: 1959 All Cr R 267. The statement by the accused in the first information report in respect of the guilt of the co-accused, is not admissible against the latter although the co-accused is the son of the accused. 1949 All Cr R 267 : 1959 All LJ 340. Effect of omissions in F.I.R.-The Magistrate and the Judges while considering omissions in the First Information Report should not derive inference from their like mathematical formulas, but should try to find out their true effect in the light of all the circumstances of the case and the material on record. 1960 Raj LW 565 : AIR 1961 Raj 24. F. I. R.-Essential of-Given by the person on the basis of information by an eye-witness -Omission as to fact about accused carrying Bhallas etc-Omission has no significance, Awadhi Yadav v. State ofBihar, Criminal Appeal No. 128 of 1967, decided on August 17, 1970 by the Supreme Court. Non-mention of the name of the accused person in the first information report is not necessarily fatal to the prosecution if there is other evidence to prove by other convincing corroborative evidence the presence of the accused at the time of the incident. 1971SCC (Cri) 500. Where F.I.R. is lodged by a person who is not an eye-witness, omissions in the F.I.R. are not material, delay in the report on behalf of the more seriously injured persons is natural and the fact that the party of the accused reported the matter to the police earlier will not affect the prosecution case. 1971 SCC (Cri) 253. Investigation without F.I.R.-The investigation officer proceeds with the investigation of an offence undersection 5(l)(c), Prevention of Corruption Act without the sanction of Magistrate under Section 5-A and without registering the F.I.R. Though the investigating officer does not choose to register a crime and though it may be declared illegal for non-conformity with the provisions of Section 162, it cannot anytheless be said that the statements of witnesses were not recorded during the course of investigation so as to take them one of the purview of Section 162, Cr. P. Code, 1949 Mad LJ (Cr) 477. Statement during investigation.-A statement made by any person to a police officer in the course of an investigation cannot be used for any purpose except that specified in Section 162, but this limitation would not operate if statement is not made in course of investigation. 1959 Cr LJ 1168: AIR 1959 J and K 105. Statement before a polic officer is not admissible.-The statement of a witness to a police officer after he has started investigation is hit by the provisions of Section 162 and therefore not admissible. 1959 Cr LJ 694: AIR 1959 Cal 342. Information at the beat house.-If the investigation had been actually started on the information given at the beat house, that would have amounted as a first information report though not strictly falling within Section 154, Cr. P. Code. 1960 Cr LJ 1078: AIR 1960 Cal 519. First information not proved, effect.-Even if the information report was not proved in a case it would not vitiate the conviction. 1959 All LJ 298 : 1959 CrLJ 936: AIR 1969 All 511. Even oral report of S.I.P. requires registration.-Where the S. 1. of Police Orally reported to the Circle Inspector of Police regarding the commission of a cognizable offence under Section 409, 1.P. Code, by the petitioner, a police head constatable, the information should be registered in the Police Station. AIR 1961 All 169.
SECTION 155: Information of non-cognizable cases:
State Amendments MAHARASHTRA.-Section 155, it was applicable to the town of Bombay, was superseded by the Bombay Act IV of 1902. The above Bombay Act IV of 1902 has now been repealed by the Bombay Act, 1951 (XXII of 1951). This Act, applies to whole State of Bombay w.e.f. 1-8-1951. PUNJAB, HARYANA AND CHANDIGARH.-The words “having power to try such case or cooit the same, for trial”. Punjab Act XXV of 1964, Section 2 and Sch. Pt. I, item (38) (2-10-1964) and Act 31 of 1966, Sections 29 and 88 (1-11-1966). UNION TERRITORIES (except Chandigarh).-Same as that of Punjab. WEST BENGAL.-(1) In sub-section (1), for the words ‘the Magistrate’, the words, ‘the Judicial Magistrate having power to try or inquire into the offence’ are substituted. (2) In sub-section (2), for the words ‘a Magistrate’ the words ‘a Judicial Magistrate’ are substituted- (W.B. Act 8 of 1970, Section 2 and Sch Item 56).
(1) When information is given to an officer in-charge of a police-station of the commission within the limits of such station of a non-cognizable offence, he shall enter in in book to be kept as aforesaid the substance of such information and refer the informant to the Magistrate.
(2) Investigation into non-cognizable cases-No police-officer shall investigate a non-cognizable case without the order of a Magistrate of the first or second class having power to try such case or commit the same for trial, or of a Presidency Magistrate.
(3) Any police-officer receiving such order may exercise the same powers in respect of the investigation (except the power to arrest without warrant) as an officer-in-charge of a police-station may exercise in a cognizable case.
SECTION 156: Investigation into cognizable cases:
State amendments GUJARAT.-Same as that of Maharashtra (1). MAHARASHTRA.-(1) For the words “any Presidency Magistrate, any Magistrate of the first class and any Magistrate of the secoud class specially empowered in this behalf by the State Government” substitute the words “any Presidency Magistrate, any District Magistrate, any Sub-Divisional Magistrate, any Magistrate of the first class or any other Magistrate specially empowered by the State Government in this behalf”. [Bombay Act XXIII of 1951, Section 2 and Schedule (1-7-1953)]. (2) After the reorganization of the State of Bombay in 1956, the amendment made in Section 164 by the above-mentioned Bombay Act is extended to the newly added areas of Hyderabad, Kutch and Saurashtra and the region of Vidarbha as from 1-9-1959 by Bom Act XCVII of 1958. MYSORE.-For the words “any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf by the State Government” substitute the words “any District Magistrate, any Sub-Divisional Magistrate, any Magistrate of the first class, or any other Magistrate specially empowered by the State Government in this behalf.” [Mys Act XIII of 1965. S. 29 (1-10-1965)]. PUNJAB, HARYANA AND CHANDIGARH-For the words “Presidency Magistrate, any Magistrate of the first class and any Magistrate of the second class specially empowered in this behalf by the State Government”, substitute the words “Judicial Magistrate of the first class or any Judicial Magistrate of the second class specially empowered in this behalf by the High Court.” [Punj Act XXV of 1964, S. 2 and Sch. Pt. I, item (39) (1-10-1964) and Act 31 of 1966, Ss. 29 and 88 (1-11-1966)]. RAJASTHAN (Abu area).-Same as that of Maharashtra (1). UNION TERRITORIES (except Chandigarh).-For Section 164(1) the following sub-section shall be substituted. : “(1) Any Judicial Magistrate of the first class or any Judicial Magistrate of the second class specially empowered in this behalf by the State Government in consultation with the High Court, may record any statement or confessionmade to him in the course of an investigation under this Chapter or under any other law for the time being in force or at any time afterwards before the commencement of the inquiry or trial. (1-A) Any Executive Magistrate of the first class or of the second class (not being a police officer) may be specially empowered by the State Government to record such statements or confessions if that Government for reasons to be recorded in writing considers it necessary so to do.” (Act 19 of 1969). WEST BENGAL.-For the words “Magistrate of the first class” substitute the words “Judicial Magistrate of the first class” and for the words “Magistrate of the second class” substitute “Judicial ‘Magistrate of the second class”. (WB Act 8 of 1970, S.2and Sch, Item 57). Notes: Investigation conducted by head constable-Validity of.-The contention that Section 156, Cr P.C. was not complied with has no merit. When the F.I.R. was received, no sub-inspector was present in the police station. Head Constable was the officer incharge of the station at that time. Hence the law permitted him to investigate the case. Pali Ram v. State of U.P., (1970)3 SCC 703. Investigation-Delay in examining witnesses by the investigating officer.- Much reliance cannot be placed on the evidence of a witness when for no justifiable reason he was not examined by the investigating officer for a number of days particularly when the witness is found to be telling falsehood on material aspects of the case and tries to conform to the evidence of other witnesses. 1971 SCC (Cri) 313. Whether discriminatory.-Section 156(3) is not discriminatory and thus violative of Article 14 of the Constitution. 1959 Cr LJ 1408 : AIR 1959 Ass 231. Irregularities.-Irregularities committed in the matter of initiation of proceedings under Section 156(3) and subsequent action under Section 202 are curable under Section 537 and do not vitiate proceedings. 1960 Cr LJ 1666: AIR 1961 Tri 44. Jurisdiction of transferee Magistrate.-In absence of the Additional District Magistrate having applied his mind while tranferring complaint to another First Class Magistrate, the transferee Magistrate is not deprived of his jurisdiction to act under Section 156(3), and; refer the matter to the police for investigation and submitting a charge-sheet. 1959 Cr LJ 1408: AIR 1959 Ass 231. When a person against whom an investigation has started appears before the Court” and had been admitted, to bail, the Court has no powers under Section 439 or 561-A to interfere in the police investigation. The police have a statutory right to make an investigation under Sections 154 and 159. AIR 1963 SC 447. Statements made under Section 164 were not evidence but were corroborative of what had been stated earlier in the Committal Court. Stale of Rajasthan v.Kartar Singh, (1970)2 SCC (Cri) 297: AIR 1970 SC 1305. See also Notes in Section 190. (1970)3 SCC 10: 1970 SCC (Cri) 360. Powers of Magistrates to ask for investigation before and after taking cognirance of the case.-The Magistrate can under Section 190 of Cr. P.C. before taking cognirance ask for investigation by the police undersection 156(3) of Cr. P.C. The Magistrate can also also issue warrant for production before taking cognizance. If after cognizance has been taken the Magistrate wants any investigation, it will be under Section 202 of Cr. P.C. State of Assam v. Abdul Noor, (1970)3 SCC 10: 1970 SCC (Cri) 360: AIR 1970 SC 1365 : (1970)6 DLT 313: 72 Punj LR 585. For power of Magistrate to stop police investigation started under Section 156. see Notes in Section 156. (1970)1 SCC 653 : 1970 SCC (Cri) 258.
(1) Any officer-in-charge of a police station may, without the order of a Magistrate, investigate any congnizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XV relating to the place of inquiry or trial.
(2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate.
(3) Any Magistrate empowered under Section 190 may order such an investigation as above-mentioned.
SECTION 157: Procedure where cognizable offence suspected:
Notes No time-lag between reception and recording of Information.-Section 157 gives a command that the police officer who has reason to suspect, be it from information received or otherwise, that a cognizable offence has been committed, shall forthwith report the matter to the Magistrate and initiate the investigation. Thus, in the case of cognizable offences, there should be no time-lag between the reception of information about the commission of ^ the offence and the recording thereof. (1960) MLJ (Cr) 695. Whether information regarding commission of an offence under Section 409, 1. P.C., by a head constable should be registered in the police station, see Section 154, supra. AIR 1961 All 169. Information by head constable: Duty of incbarge of P. S.-In cognizable cases, it is the duty of the officer-in-charge of a police station to send a copy of the F. I. R. to the Magistrate having jurisdiction forthwith and then proceed to investigate. (1957)23 Cut LT 449.
(1) If, from information received or otherwise, an officer-in-charge of a police station has reason to suspect the commission, of an offence which he is empowered under Section 156 to investigate, he shall forthwith send a report of the same to a Magistrate empowered to take cognizance of such offence upon a police report, and shall proceed in person, or shall depute one of his subordinate officers [not being below such rank as the State Government may, by general or special order, prescribe in this behalf] to proceed) to the spot, to investigate the facts and circumstances of the case, [and, if necessary, to take measures] for the discovery and arrest of the offender : Provided as follows : (a) Where local investigation dispensed with.-When any information as to the commission of any such offence is given against any person by name and the case is not of a serious nature, the officer-in-charge of a police station need not proceed in person or depute a subordinate officer to make an investigation on the spot; (b) Where police officer-in-charge sees no sufficient ground for investigation.-If it appears to the officer-in-charge of a police station that there is no sufficient ground for entering on an investigation) he shall not investigate the case.
(2) In each of the cases mentioned in clauses (a) and (b) of the proviso to sub-section (1), the officer-in-charge of the police station shall state in his said report his reasons for not fully complying with the requirements of that sub-section, [and, in the case mentioned in clause (b), such officer shall also forthwith notify to the informant, if any, in such manner as may be prescribed by the [State Government], the fact that he will not investigate the case or cause it to be investigated].
SECTION 158: Reports madder Section 157 how submitted:
Note Scope.-Provision of Section 158(2) cannot be rendered nugatory by regarding police report as a valid report under Section 190(l)(b). 64 Cal WN 1026.
(1) Every report sent to a Magistrate wader Section 157 shall, if the State Government so directs, be submitted through such superior officer of police as the State Government, by general or special order, appoints in that behalf.
(2) Such superior officer may give such instructions to the officer-in-charge of the police station as he thinks fit, and shall, after recording such instructions on such report, transmit the same without delay to the Magistrate.
SECTION 159: Power to hold investigation or preliminary inquiry:
Such Magistrate, on receiving such report, may direct an investigation or, if he thinks fit, at once proceed, or depute any Magistrate subordinate to him to proceed, to hold a preliminary inquiry into, or otherwise to dispose of, the case in manner provided in this Code. Note General Diary.-Where the police officer has failed to reduce the information to writing and get the signature of the informant he has no business to enter it in the General Diary. (1961)1 Cr LJ 160: AIR 1961 Tri 4.
SECTION 160: Police officer’s power to require attendance of witnesses:
Any police officer making an investigation under this chapter may, by order in writing, require the attendance before himself of any person being within the limits of his own or any adjoining station who, from the information given or otherwise, appears to be acquainted with the circumstances of the case ; and such person shall attend as so required : Note See notes in Section 163-1970(1) SCC 595 : 1970 SCC (Cri) 240.
[Provided that no male person under the age of fifteen years or woman shall be required to attend at any place other than the place in which such male person or woman resides.]
SECTION 161: Examination of witnesses by police:
Notes F. I. R.-For importance of first information report, set Section 154, supra, 1960 Cr LJ 532: AIR 1960 SC 391. Omission in F. I. R. and Section 161 ,Cr. P. C.-When a particular fact deposed to by witnesses does not find mention both in the F. I. R. and in statements recorded under Section 161, Cr. P. C., it is an improvement and it cannot be considered. Interpretation.-The word ‘witness’ used in Section 132, Evidene Act, does not refer to any interrogatee examined by a police officer under Section 161, it refers only to a person who enters the witness box and is sworn as a witness Defamatory statements made by a person in answer to interrogatories during investigation under Section 161 are not protected under Section 132, Evidence Act. 1960 All LJ 109: 1960 Cr LJ 1298: AIR 1960 All 623. Form of Speech.-Statements recorded by police officer under Section 161(3), Cr. P.C. should not be in the indirect form of speech. 1959 Andh LT 908: 1960 Cr LJ 311 : AIR 1960 Andh Pra 160. Brevity of F. I. R.-It is well-known that first information reports are often very brief as they have to be made in the heat of the moment (in order to obtain police help at the earliest possible moment). At that time it is not expected that every detail would be given The brevity of the report is therefore no reason for disbelieving the prosecution witnesses. 1958 Raj LW 505. Name not included in the report.-The Court is not precluded from examining, as witness in the case, a person whose name has not been included in the report made or whose statement has not been furnished. 63 Cal WN 454: 1959 Cr LJ 318: AIR 1959 Dying declaration.-Under the Indian Law as contrasted with the English Law, it is not necessary for the admissibility of a declaration that the deceased at the time of making it should have been under the expectation of death. 1960 Cr LJ 851: AIR 1960 Statement recorded during investigation-Value of.-Though the investigation in question may be illegal for the statements rerecorded by the police officer in the course of investigation was accepted. Bhanuprasad v. State of Gujarat, AIR 1968 SC 1323 at 1325, 1326. Where the conversation was voluntary and there was no element of duress, coercion or compulsion, his statements were not extracted from him in a oppressive manner or by force or againt his wishes, he cannot claim the protection of Article 20 (3) of the Constitution. The fact that the tape-recording was done without his knowledge is not of itself an objection to its admissibility in evidence. In saying so, the Supreme Court did not lend its approval to the police practice of tapping telephone wires and setting up hidden, microphones. AIR 1968 SC 147 at 150. Whether violated Article 20 (3).-Sections 161 and 162 of Cr. P. Code are not violative of Art. 20(3) of the Constitution, and they cover statements made by accused persons an under those sections an investigating officer is authorised to record the statements of such persons. further. Section 162 does not only permit non-confessional or non-incriminatory statements of such accused persons to be recorded, but also statements leading to discovery of facts. 1959 All Cr R 365: 1960 Cr LJ I : AIR 1960 All I (FB). In cases started otherwise than on a police report it is not necessary that before ‘the trial is commenced copies of the statements of witnesses recorded under Section 161, Cr. P. C. should have been supplied to the accused. In such cases it is for the accused to himself apply for and obtain copies of such statements if he so wants. 1963 ALJ 350. Where the statements of the Complaints Officer who is also the principal witness conversant with the facts of the case is not recorded under Section 161, such statement loses much of its weight. AIR 1964 All 581. See also Notes in Section 163. (1970) 1 SCC 595 : 1970 SCC (Cri) 240.
(1) Any police officer making an investigation under this chapter [or any police officer not below such rank as the State Government may, by general or special order, prescribe in this behalf, acting on the requisition of such officer] may examine orally any person supposed to be acquainted with the facts and circumstances of the case.
(2) Such person shall be bound to answer all question relating to such case put to him by such officer, other than questions the answers to which would have a tendency to expose him to a criminal charge or to penalty forfeiture.
[(3) The police officer may reduce into writing any statement made to him in the course of an examination under this section, and if he does so he shall make a separate record of the statement, of each such person whose statement he records.]
SECTION 162: Statements to police not to be signed: Use of such statements in evidence:
Notes Applicability.- For applicability see Section 154 of the Code. 1959 Cr LJ 694: AIR 1959 Cal 342. Applicability to dying declaration- Evidence Act-Section 32(1).-1970(2) SCC 113 : 1970 SCC (Cri) 328. See under Evidence Act, 1872 Section 32(1). Whether ultra vires.-Section 162(2) so far as it relates to Section 27, Evidence Act is void under Article 14 of the Constitution. 1960 Cr LJ I : AIR 1960 All 1(FB). Construction.-The cardinal rule of construction of the provisions of a section with a proviso is to apply the broad general rule of construction. 1959 CrLJ 1231: 1959 Mad LJ (Cr) 759: AIR 1959 SC 1012. For admissibility of statement of witnesses recorded during investigation see Section 154, supra. 1960 Mad LJ (Cri) 477 : (1960)2 Andh WR 73. Scope.-Specimen hand-writting made by the accused at the dictation of a police officer much before the investigations were started, does not come within Section 162. 1959 Cri LJ 881 : (1959) Mad LJ (Cri) 337 : AIR 1959 Mys 185. Prepared motes.-Using notes prepared from memory of what a person had stated before investigating officer would offend provisions of Section 162. AIR 1960 Mys 111. Omission, effect.-Omissions in respect of minor details in statement before police do not affect evidence given in Court. AIR 1960 Mys 111. List of stolen articles.-The subsequent list of stolen articles by the complainant was held to be part and parcel of the first information report, but the same is not covered by Section 162. 1958 MP LJ (Notes) 177. Discovery of facts.-Whether Section 162 bars recording of statements leading to discovery of fact, see Section 161, supra. 1960 Cr LJ 1: AIR 1960 All 1(FB). Giving of specimen of handwriting is not statement.-When an accused person gives his handwriting or thumb-impression for comparison in the course of investigation, he does not give a statement, proof whereof is prohibited by Section 162. 1939 Cr LJ 1057 : 61 Bom LR 345 : AIR 1959 Bom 408. Use of statement.-It lays down that statement recorded during investigation shall not be used for any purpose except to the limited event mentioned in the section itself. 1959 All LJ 651 : 1960 Cr LJ 1 : AIR 1960 All 1 (FB). It lays down the limited use to which a statement recorded under Section 161 of the said Code can be put. The Courts are prohibited from using such statements as corroboration of the statement made in Court. Statements not to be got signed.-The evidentiary value of the statements of witnesses is seriously impaired if they have been made to sign their statements during the course of an investigation. The evidence of an agent provocateur has to be scanned very carefully. 1959 Ker LT 872 : 1959 Ker LJ 1143 : (1959) MLJ (Cr) 186. Statements made by witness during investigations should not be got signed by them if they are reduced into writing. Where a witness stated that he had signed his statement or put his thumb-mark on his statement, it is the duty of the Trial Judge to clear this point by questioning the investigating officer and by looking into the relevant records whether the witness had actually signed his statement or not. Any statement made in the Panchnama cannot be used in evidence except for the purpose of contradicting witness whose statement is contained in the Panchnama. It is only when the statements contained in the Panchnama are put to the Panch witnesses that notice can be taken of the contradictions between the evidence of Panch witnesses and what is contained in the Panchnama. But before the writing is proved his attention must be called to those parts which are to be used for contradicting him. The parts of statement that is to aim does not constitute substantive evidence. Where the witness was made to write his statement during investigation, it is inadmissible in evidence. Interest of justice.-Witnesses examined by the Court in the interest of justice cannot be said to be witnesses called for prosecution. 1959 Mad LJ (Cr) 380: 1959 AP LT 857. Use of statements.-There is a general bar against the use of the statements of witnesses made before the police during investigation at the trial to a limited exception in the interests of the accused, and the exception is not meant to cross the bar. 1959Cr Lf 1231 1959 Mad LJ (Cr) 759 : 1959 SCJ 1042 : AIR 1959 SC 1012. Violation of Section 162.-There is no hesitation in finding that the Circle Inspector acted in violation of Section 162) Criminal Procedure Code when he took down the statement of the witnesses and got their signatures thereto. 1960 MLJ (Cr) 695. Destruction of statements.-A deliberate distruction of statements of witnesses made during investigation would occasion prejudice to the accused which would swing the balance in favour of the accused. 1959 Mad LJ (Cr) 192 : AIR 1959 AP 325 : 1959 AP LT 76. Defamatory statement.-It cannot be said that the defamatory statement cannot be used in evidence against the maker in his prosecution under Section 500, 1. P. C. 1960 All LJ 109: 1960 Cr LJ 1296 : AIR 1960 All 623. Contradictory statement.-The section requires due proof of the contradictory statement if it is intended by defence to discredit the witness. 1959 MP 517: 1959 Cr LJ 1341: AIR 1959 MP 391. Confronting a witness.-Ordinarily the Court permits the cross-examination of a witness who has resiled from his statement made by him during investigation but now under the amended Section 162, it is open to the prosecution to confront a witness with his statement made during investigation with the permission of Court. 1960 Cr LJ 520 : AIR 1960 Raj 101. Motive-How far necessary to prove-Statement made by accused to the investigating officer at the time of investigation – Admissibility of. Held : It is not always very easy to prove motive. Oftentimes, the motive is locked up in the heart of the offender ……….In our opinion in a case like this, the proof of motive does not play an important part. Pritam Singh v. State of Rajasthan, (1969)3 SCC 884. Dictum of Supreme Court.-It is unfortunate that our law does not admit of cross-examination of such a witness (defence witness) in respect of statements before the police. C. Laxman Kalu v. State of Maharashtra, AIR 1968 SC 1390 at 1392. For statements recorded during investigation-Value of.-See Notes in Section 161. AIR 1968 SC 1323 : AIR 1968 SC 147.
[(1) No statement made by any person to a police officer in the course of an investigation under this chapter shall, if reduced into writing, be signed by the person making it ; nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record, be used for any purpose (save as hereinafter provided) at any inquiry or trial in respect of any offence under investigation at the time when such statement was made : Provided that when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid, any part of his statement, if duly proved, may be used by the accused, and with the permission of the Court, by the prosecution, to contradict such witness in the manner provided by (S.145 of the Indian Evidence, Act, 1872), and when any part of such statement is so used, any part thereof may also be used in the re-examination of such witness, but for the purpose only of explaining any matter referred to in his cross-examination.
(2)Nothing in this section shall be deemed to apply to any statement falling within the provisions of , clause (1), (S.32 of the Indian Evidence Act, 1872), or to affect the provisions of (Section 27)
of that Act.
SECTION 163: No inducement to be offered:
(1) No police officer or other person in authority shall offer or make, or cause to be offered or made, any such inducement, threat or promise as is mentioned in the (S.24 of the Evidence Act, 1872).
(2) But no police officer or other person shall prevent, by any caution or otherwise, any person from making in the course of any investigation under this chapter any statement which he may be disposed to make of his own free will.
SECTION 164: Power to record statements and confessions:
State Amendments GUJARAT AND MAHARASHTRA.-In sub-section (1), for the words “any Presidency Magistrate, any Magistrate of the first class and any Magistrate of the second class specially empowered in this behalf by the State Government” substitute the words “any Presidency trate, any District Magistrate, any Sub-divisional Magistrate) any Magistrate of the first class or any other Magistrate specially empowered by the State Government in this behalf”. (Bom. Act 23 of 1951, S. 2 and Schedule.) PUNJAB.-In sub-section (1) for the words “Presidency Magistrate, any Magistrate of the first class and any Magistrate of the second class specially empowered in this behalf by the State Government”, the words “Judicial Magistrate of the first class or any Judicial Magistrate of the second class specially empowered in this behalf by the High Court” shall be substituted. (Punjab Act 25 of 1964.) Notes Duty of the Magistrate.-Where the matter is of vital importance as for example confessional statement, it is necessary that the Magistrate should leave on record the fact of his having told the accused that he was in the presence of a Magistrate so as to enable the trial court to reach the conclusion that the confessional statement was voluntary. 1959 MLJ (Cr) 919. An omission on the part of the ‘Magistrate to satisfy himself that accused was freed from police influence, takes away much of the force of the confessional statement. 1958 Mad LJ (Cr) 780: 1959 Cr LJ 337 : AIR 1939 Mys 47. Object.-The statement of a witness is generally recorded under Section 164, Cr. P. Code to fix him up when it is feared that he may resile afterwards or may be tampered with 1960 Cr LJ 1167: AIR 1960 All 521. Manner of recording confession.-If a confession is to be used in evidence at all, it must be recorded in the manner prescribed by Sections 164 and 364, Section 533 being available only for curing defects in form. 1959 KLT 167 : 1959 Ker LJ 221. A confession recorded without observing the formalities laid down in Section 164 and Section 364, Cr. P. C. is inadmissible in evidence. 1959 Cr LJ 187: 1958 Ker LJ 935 : AIR 1959 Ker 46 : AIR 1959 All 518: 1559 Cr LJ 940. A statement made by an accused to the Magistrate during the course of an investigation into the very crime of which he is accused cannot be admitted in evidence unless the provisions of Section 164, Cr. P. Code are substantially complied with but this is not the case if the statement is made before the investigation or falling outside its scope. 1960 Cr LJ 1340 : AIR 1960 Mad 443. Statements made under Section 164 were not evidence but were corroborative of what had been stated earlier in the Committal Court, State of Rajasthan v. Kartar Singh (1970)2 SCC 61 : 1970 SCC (Cri) 297 : AIR 1970 SC 1305. If a statement of a witness is previously recorded under Section 164, Criminal Procedure Code, it leads to an inference that there was a time when the police thought the witness may change but if the witness sticks to the statement made by him throughout, the mere fact that is statement was previously recorded -under Section 164 will not be sufficient to discard it. The Court, however, ought to receive it with caution and if there are other circumstances on record which lend support to the truth of the evidence of such witness, it can be acted upon. Ram Charan v. State of U. P., AIR 1968 SC 1270 overruling 1900 ILR 27 Cal 295 and AIR Statements were held not to be confessions recorded by a Magistrate under Section 164 the Code of Criminal Procedure but were statements made in answer to a notice under Section 171-A of the Sea Customs Act. As they are not made subject to the safeguards under which confessions are recorded by Magistrate they must be specially scrutinised to finding out if they were made under threat or promise from some one in authority. If after such scrutiny they are considered to be voluntary, they may be received against the maker and in the same way as confessions are received, also against a co-accused jointly tried with him. Section 30 of the Evidence Act does not limit itself to confession made to Magistrates, nor do the earlier Sections do so, and hence there is no bar to its proper application to the statements such as we have here. Haroon Haji v. State of Maharashtra, AIR 1968 SC 832. Retracted confession.-In a case of retracted confession general corroboration is sufficient and in addition the Court must feel the reasons given for the retraction as untrue 1959 Cr LJ 187 : 1958 MLJ (Cri) 869: AIR 1959 Ker 46. A retracted confessio requires corroboration. 1960 MLJ (Cri) 565 : 1960 Cr LJ 1108 : AIR 1960 Mys 199. But connection based on retracted confession without corroboration is not illegal. AIR 1967 SC 349 : 1967 Cr LJ 409. Confession before executive Magistrate whether voluntary.-The appellant was kept ill Jail custody for three days from October 25 to October 28, 1966 and on October 28 the Executive Magistrate made the preliminary questioning of the appellant, gave him a warning and sent him back to the District Jail at Sangli. On the next day the appellant was produced before the Magistrate and the confession was recorded. It is clear that the appellant had spent four days in judicial custody and he was not under the influence of the investigating agency for at least four days. The confession of the appellant was voluntary. Abdul Rajuk Kurteja Defedar v. State af Maharashtra, (1969)2 SCC 234: (1969)2 SCJ 870 : AIR 1970 SC 283 : 1969 MLJ (Cri) 862. Confession recorded after court hours-It is a highly undesirable practice to record confessional statements after court hours. 1959 Cr LJ 337 : ILR 1958 Mys 35 : AIR 1959 Mys 47. It cannot be laid down as a proposition of law that all confessions recorded either before or after Court hours are perse bad. 1960 Cr LJ 1103: AIR 1960 Mys 199: 1960 MLJ (Cri) 565. The fact that some of the prosecution witsses had been examined earlier under Section 164, Cr. P. C., is only a circumstance to be taken into account in appearing the value of their testimony and the court has to scrutinise such evidence a little more closely and see if the other circumstances lend support to it. 1971 SCC (Cri) 680. Confession under police influence.-A confession recorded while the accused was in police custody and there were police officers all around him and it was recorded by a police officer to the dictation of the Magistrate and it was not read over or explained to the accused, can hardly be accepted as a voluntary confession. 1959 Ker LT 167 : 1959 Ker LJ 221. The Magistrate will take precautions to ensure that the police influence, if any, is removed before recording confession, but the sooner it is made the better. 1959 Cr LJ 448; AIR 1959 HP 3. Delay.-Delay in producing the accused before a Magistrate for confession will not vitiate it, if the same is otherwise proved to have been made voluntarily. 1960 MLJ (Cri) 565. Where confession made by the accused soon after his apprehension, was recorded after delay of 17 days which was unexplained it was deprecated. 1960 CrLJ 480: AIR 1960 MP 102. Confession is not inadmissible in evidence merely because it is recorded shortly after the willingness of the accused to confess. 61 PLR 48: 1959 CrLJ 362: AIR 1959 Punj 110. Conviction on confession alone.-The confession of an accused person is substantive evidence to base a conviction solely on it. 1960 Cr LJ 520: AIR 1960 Raj 101. Distinction between confession and admission.-The acid test which distinguishes a confession from an admission is that where conviction can be based on the statement alone, it is a confession and where some supplementary evidence is needed to base a conviction then it is an admission. 1959 Cr LJ 940 : 1958 All LJ 660 : AIR 1959 All 518. Voluntariness of confession.-To rely on a confession, it must be voluntary which fact must be proved by prosecution. It is desirable that the Magistrate should ascertain from the accused the day on which he first expressed his desire to confess in order to see whether there was any delay in producing the accused before him. 1960 MLJ (Cri) 565 : 1960 Cr LJ 1108: AIR 1960 Mys 199. Even if a Magistrate while recording a confession, has not made an entry to the effect that he cautioned the accused that he was not bound to make the confession although orally he had done, the confession is voluntary and admissible. 1959 Cr LJ 353: AIR 1959 Ori 33. Confession defined.-Where the effect of the statements of the accused suggest the inference that he committed the crime but could not show the admission in terms of the offence, the statement whether individually or taken together could not be calculated a] ‘ confession of the crime. 1960 Cr LJ 544: AIR 1960 SC 409. Inadmissilulity.-Record of confession is not permissible after charge-sheet, and if such made, it is inadmissible in evidence. 1959 Cr LJ 940 : AIR 1959 All 518. Exculpatory statement.-A statement made by the accused before the police giving his version of the occurrence and saying he had acted in the right of private defence is an exculpatory statement and is not a confession but is admisible under Section 21 of the Evidence Act as a piece of admission and can be used against the maker. 1960 Mad LJ (Cri)127 : AIR 1960 Mad 191. Statement of accused recorded by a village Mukhiya before arrest-Whother admissible in evidence-Whether the court could reject the exculpatory part and accept the inculpatory part in convicting the accused.-The exculpatory part of the appellant’s statement was not only inherently improbable but was contradicted by the other evidence and so it was wholly unacceptable. The other incriminating cricumstances considere along with the appellant’s statement pointed conclusively to his having committed the murder. The court could reject the exculpatory portion of the statement and accept inculpatory portion. Nishi Kant fha v. State of Bihar, (1969) 1 SCCO 347. Inducement.-Confessions preceding a pardon indicates that the statement must have been obtained by some such inducement as a promise to make the accused an approver. 1959 Ker LT 167 : 1959 Ker LJ 221. Village Magistrate.-Village Magistrates are not Magistrates within the meaning of the Code and therefore cannot record a statement of confession under Section 164. 1959 Cr LJ 603: AIR 1959 Mad 175. Oral evidence by Magistrate.-The Magistrate can give oral evidence as to the fact that he had disclosed his identity to the accused, althguoh it is desirable that he should leave this fact on record. (1960) MLJ (Cri) 152. Magistrate preferred for identification.-Any person can conduct and test identification. but Magistrates are preferred. His identification memo is record of the statement which the identifier expressly or impliedly made before him. (1961)1 Cr LJ 340 : AIR 1961 Accused omitting in confession.-Merely because the accused has not stated in his confession statement that he inflicted a number of ablows, it does not mean that that his confession in regard to his attack itself, must be viewed as being untrue, i960 Mad LJ (Cri) 152: 1960 Cr LJ 959 : AIR 1960 Mys 163. Non-examination of witnesses, effect.-That the prosecution did not examine some of the witnesses mentioned by the accused in his confession recorded under Section 164 cannot be a reason for not believing the confession. 1960 Cr LJ 520 : AIR 1960 Raj 101. Conviction on statements of witnesses.– It is premissible to base an orderof conviction purely on the statements made by the witnesses in the committal proceedings without further corroboration. 1960 MPLJ (Notes) 208. Error of law.-A Judge commits an error of law in using the statement of a witness under Section 164 as a substantive evidence in coming to the conclusion that he had been won over. 1960 Cr LJ 679: AIR 1960 SC 490. A confession which cannot be presumed to be correct under Section 80 of the Evidence Act for the reason that it has not been recorded by a proper Magistrate cannot be proved by oral evidence of the Magistrate recording the same. Such a confession would be inadmissible in evidence. 1963 ALJ (SC) 1093.
(1) [Any Presidency Magistrate) any Magistrate of the first class and any Magistrate of the second class specially empowered in this behalf by the State Government may, if he is not a police officer] record any statement or confession made to him in the course of an investigation under this chapter [or under any other law for the time being in force] or at any time afterwards before the commencement of the inquiry or trial.
(2) Such statements shall be recorded in such of the manners hereinafter prescribed for recording evidence as is, in his opinion, best fitted for the circumstances of the case. Such confessions shall be recorded and signed in the manner provided in Section 364, and such statements or confessions shall then be forwarded to the Magistrate by whom the case is to be inquired into or tried.
(3) [A Magistrate shall, before recording any such confession, explain to the person making it that he is not bound to make a confession and that if he does so it may be used as evidence against him and no Magistrate] shall record any such confession unless, upon questioning the person making it, he has reason to believe that it was made voluntary ; and, when he records any confession, he shall make a memorandum at the foot of such record to the following effect: “[I have explained to (name) that he is not bound to make a confession and that, if he does so, any confession he may make may be used as evidence against him and I believe] that this confession was voluntarily made. It was taken in my presence and hearing, and was read over to the person making it and admitted by him to be correct, and it contains a full and true account of the statement made by him. (Signed) A. B., Magistrate.” Explanation.-It is not necessary that the Magistrate receiving and recording a confession or statement should be a Magistrate having jurisdiction in the case.
SECTION 165: Search by police officer:
Notes Importance of recording reasons.-The recording of reasons is an important step in the matter of search and to ignore it is to ignore the material part of the provisions govern ing searches. 1960 Cr LJ 286 : AIR 1960 Sc 210. Under Section 17 of the Bihar Sales Tax Act power of the Commissioner of Sales Tax was delegated to the Superintendent of Commercial Taxes, Intelligence Branch. In making the inspection, search and seizure the latter was not investigating or dealing with an offence, The provisions of Section 165(4) read with Section 103, Cr. P. C. were, therefore, not attracted and he was not required to comply with those provisions. Shemath v. State of Bihar, AIR 1968 SC 1517 at 1520. Safeguards under Section 165 apply mutatis mutandis to searches under Section 41 of the Madras General Sales Tax Act, 1959-Safeguards explained-Board of Revenue, Madras v. R. S. fhaver, AIR 1968 SC 59, reversing ILR (1966)1 Mad 267.
[(1) Whenever an officer-in-charge of a police station or a police officer making an investigation has reasonable arounds 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 incharge, 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.
(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 suborbinate 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 102 and Section 103] 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 with a copy of the same by the Magistrate : Provided that he shall pay for the same unless the Magistrate for some special reason thinks fit to furnish it free of cost.]
SECTION 166: When officer-incharge of police station may require an-other to issue search-warrant:
(1) An officer-in-charge of a police station [or a police officer not being below the rank of sub-inspector making an investigation] may require an officer-in-charge of another police station, whether in the same or a different district, to cause a search to be made in any place, in any case in which the former officer might cause such search to be made, within the limits of his own station.
(2) Such officer, on being so required, shall proceed according to the provisions of Section 165, and shall forward the thing found, if any, to the officer at whose request the search was made.
[(3) Whenever there is reason to believe that the delay occasioned by requiring an officer-in-charge of another police station to cause a search to be made under sub-section (1) might result in evidence of the commission of an offence being concealed or destroyed, it shall be lawful for an officer-in-charge of a police station or a police officer making an investigation under this chapter to search, or cause to be searched, any place in the limits of another police station, in accordance with the provisions of Section 165, as if such place were within the limits of his own station.
(4) Any officer conducting a search under sub-section (3) shall forthwith send notice of the search to the officer-in-charge of the police station within the limits of which such place is situate, and shall also send with such notice a copy of the list (if any) prepared under Section 103, and shall also send to the nearest Magistrate empowered to take cognizance of the offence, copies of the records referred to in Section 165, sub-sections (1) and (3).
(5) The owner or occupier of the place searched shall, on application, be furnished with a copy of any record sent to the Magistrate under sub Provided that he shall pay for the same unless the Magistrate for some special reason thinks fit to furnish it free of cost.]
SECTION 167: Procedure when investigation cannot be completed in twenty-four hours:
State Amendments MAHARASHTRA.-(1) In Section 167- (i) in sub-section (1) for the words “the nearest Magistrate” substitute the words “the nearest Judicial Magistrate” ; (ii) for sub-section (4), substitute the following namely : “(4) Any Magistrate giving such order shall forward a copy of his order, with his reasons for making it, to the Sessions Judge.” Bom. Act 23 of 1951, Section 2 and Schedule). (2) Notwithstanding anything contained in sub-section (2) of Section 167, the Presidency Magistrate in Greater Bombay to whom an accused person is forwarded under subsection (2) of Section 167 of the Code, may, whether he has or has not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit for a term not exceeding fifteen days at a time. See the Bombay Police Act, 1951 (22 of 1951), Section 96(l)(ii). (3) After the reorganisation of the State of Bombay in 1956, the amendments made in the Section 167 by Bombay Act mentioned in (1) above are extended to the newly added areas of Hyderabad, Kutch and Saurashtra and the region of Vidarbha as from 1-9-1959 by Bom. Act XCVII of 1958. UNION TERRITORIES (except Chandigarh). In its application to the Union territories, in Section 167- (i) for the proviso to sub-section (2), substitute the following proviso namely : “Provided that no Executive Magistrate of the second class not specially empowered in this behalf by the State Government and no Judicial Magistrate of the second class not specially empowered in this behalf by the State Government in consultation with the High Court, shall authorise detention in the custody of the police”; and (ii) for sub-section (4) substitute the following sub-section namely : “(4) If such order is given by an Executive Magistrate other than the District Magistrate or Sub-divisional Magistrate he shall forward a copy of his order, with his reasons for making it, to the Magistrate to whom he is immediately subordinate and if such order is given by a Judicial Magistrate other than the Chief Judicial Magistrate, he shall forward a copy of his order, with his reasons for making it, to the Chief Judical Magistrate.” WEST BENGAL.-(1) In sub-section (1) for the words ‘nearest Magistrate’ substitute the words ‘nearest Judicial Magistrate’. (2) In the proviso to sub-section (2), for the words ‘no Magistrate of the third class, and no Magistrate of the second class’, substitute the words ‘no Judicial Magistrate of the third class, and no Judicial Magistrate of the second class’ ; (3) For sub-section (4) substitute the following same as that of Maharashrtra 1 (ii) PUNJAB, HARYANA AND CHANDIGARH, (i) for the proviso to sub-section (2), the following shall be substituted, namely: “Provided that no Executive or Judicial Magistrate of the second class no specially empowered in this behalf by the State Government or the High Court as the case may be, shall authorise detention in the custody of the police” ; and (ii) for sub-section (4), the following shall be substituted, namely : “(4) If such order is given by an Executive Magistrate other than the District Magistrate or Sub-divisaonal Magistrate, he shall forward a copy of his order, with his reasons for making it, to the Magistrate to whom he is immediately subordinate and if such order is given by a Judicial Magistrate, he shall forward a copy of his order, with his reasons for malting it, to the Chif Judicial Magistrate.”
(1) Whenever [any person is arrested and detained in custody, and it appears that the] investigation * * * cannot be compteted within the period of twenty-four hours fixed by Section 61, and there are grounds for believing that the accusation or information is well-founded, the officer-in-charge of the police station [or the police officer making the investigation if he is not below the rank of sub-inspector] shall forthwith transmit to the nearest Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused * * * to such Magistrate.
(2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole. If he has not jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction : [Provided that no Magistrate of third class, and no Magistrate of the second class not specially empowered in this behalf by the State Government shall authorise detention in the custody of the police.]
(3) A Magistrate authorising under this section detention in the custody of the police shall record his reasons for so doing.
(4) If such order is given by a Magistrate other than the District Magistrate or sub-divisional Magistrate) he shall forward a copy of his order, with his reasons for making it, to the Magistrate to whom he is immediately subordinate.
SECTION 168: Report of investigation by subordinate police officer:
When any subordinate police officer has made any investigation under this Chapter, he shall report the result of such investigation to the officer-incharge of the police station. A police officer investigating a case under Chapter XIV has to make three different kinds of reports at three different stages of the investigation. AIR 1959 Bom 437.
SECTION 169: Release of accused when evidence deficient:
If, upon an investigation under this Chapter, it appears to the officer-in-charge of the police station [or to the police officer making the investigation] that there is not sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate, such officer shall, if such person is in custody, release him on his executing a bond, with or without sureties, as such officer may direct, to appear, if and when so required, before a Magistrate empowered to take cognizance of the offence on a police report and to try the accused or commit him for trial. Notes The investigation under this Code takes in several aspects and stages, ending ultimately with the formation of an opinion by the police as to whether on the material covered and collected a case is made out to place the accused before the Magistrate for trial, and the submission of either a charge-sheet, or a final report is dependent on the nature of the opinion so formed. The formation of the said opinion, by the police, is the final step in the investigation, and that final step is to be taken only by the police and by no other authority. There is no power, expressly or impleadly conferred under this code on a Magistrate to call upon the police to submit a charge-sheet, when they have sent a report under Section 169, that there is no case made out for sending up an accused for trial-Abhinandan Jha v. Dinesh Misra, AIR 1968 SC 117 at 123, 124, oversruling AIR 1960 Bom 240 and AIR 1966 The Lucknow Magistrate had done all he should under Section 334, Cr.P.C. In the case of transferred custody, the Magistrate cannot recall the prisoner from the Court’s custody. He is only required to intimate to the jail authorities, the prisoner and the Court, that the original remand has been extended while adjourning the case. Raj Narain v. Superintendent, Central Jail, New Delhi, (1970)2 SCC 750: 1970 SCC (Cri)543. The offences were non-cognizable and were not investigated by the police. The investigation was by custom officers under the Sea Customs Act and not by the police under Chapter XIV of this Code. Therefore no question of application of Sections 169 and 170 In India the privilege of refusing to answer has been removed so that temptation to tell a lie may be avoided. Article 20 of the Constitution protects a person who is accused of an offence and not those questioned as witnesses and they later can also be subjected to oath. Section 133 of the Evidence Act makes the accomplice a competent witness against an accused person. It has to be subjected to scrutiny and the usual checks for corroboration and has therefore to be received with due caution. To keep the sword hanging over the head of an accomplice and to examine him as a witness is to encourage perjury. Perhaps it will be possible to enlarge Section 337 taking certain special laws dealing with customs) foreign exchange etc. Where accomplice testimoney will always be useful and the witnesses will always come forward because of conditional pardon offered to them. Laxmipat Chorasia v. State of Maharashtra, AIR 1968 SC 938.
SECTION 170: Case to be sent to Magistrate when evidence is sufficient:
State Amendments MAHARASHTRA.–Delete sub-section (3). (Bom. Act 23 of 1951, Section 2 and Schedule), PUNJAB, HARYANA AND CHANDIGARH.-In sub-section (3) for the. words “District Magistrate or Sub-divisional Magistrate” the words “Chief Judicial Magistrate” shall be substituted. (Punjab Act 25 of 1964). WEST BENGAL.-In its application to the State of West Bengal, in sub-section (3) for the words “District Magistrate or Sub-divisional Magistrate”, substitute the words’ ‘Subdivisional Judicial Magistrate”.-W.B. Act VIII of 1970, Section 2 and Schedule, Item 61. Note Application by prosecution for return of Muddamal liquor to police for being sent to Chemical Analysis cannot be granted. (1961)1 Cr LJ 54 : AIR 1961 Guj 4.
(1) If, upon an investigation under this Chapter, it appears to the officer-incharge of the police station that there is sufficient evidence or reasonable ground as aforesaid, such officer shall forward the accused under custody to a Magistrate empowered to take cognizance of the offence upon a police report and to try the accused or commit him for trial or, if the offence is bailable and the accused is able to give security, shall take security from him for his appearance before such Magistrate on a day fixed and for his attendance from day to day before such Magistrate until otherwise directed.
(2) When the officer-in-charge of a police station forwards an accused. person to a Magistrate or takes security I or his appearance before such Magistrate under this section, he shall send to such Magistrate any weapon or other article which it may be necessary to produce before him, and shall require the complainant (if any) and so many of the persons who appear to such officer to be acquainted with the circumstances of the case as he may think necessary, to execute a bond to appear before the Magistrate as thereby directed and prosecute or give evidence (as the case may be) in the matter of the charge against the accused.
(3) If the Court of the District Magistrate or Sub-Divisional Magistrate is mentioned in the bond, such Court shall be held to include any Court to which such Magistrate may refer the case for inquiry or trial) provided reasonable notice of such reference is given to such complainant or persons.
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(5) The officer in whose presence the bond is executed shall deliver a copy thereof to one of the persons who executed it, and shall then send to the Magistrate the original with his report.
SECTION 171: Complainants and witnesses not to be required to accompany police officer:
No complainant or witness on his way to the Court of the Magistrate shall be required to accompany a police officer, Complainants and witnesses not to be subjected to restraint.- Or shall be subjected to unnecessary restraint or inconvenience, or required to give any security for his appearance other than his own bond: Recusant complainant or witness may be forwarded in custody. -Provided that, if any complainant or witness refuses to attend or to execute a bond as directed in Section 170, the officer-in-charge of the police station may forward him in custody to the Magistrate, who may detain him in custody until he executes such bond, or until the hearing of the case is completed.
SECTION 172: Diary of proceedings in investigation:
(1) Every police officer making an investigation under this Chapter shall day by day enter his proceedings in the investigation in a diary, setting forth the time at which the information reached him, the time at which he began and closed his investigation, the place or places visited by him, and a statement of the circumstances ascertained through his investigation.
(2) Any Criminal Court may send for the police diaries of a case under inquiry or trial in such Court, and may use such diaries, not as evidence in the case, but to aid it in such inquiry or trial. Neither the accused nor his agents shall be entitled to call for such diaries, nor shall he or they be entitled to see them merely because they are referred to by the Court; but, if they are used by the police officer who made them, to refresh his memory, or if the Court uses them for the purpose of contradicting such police officer, the provisions of the (S.61 of the Evidence Act, 1872) or (Section 145), as the case may be, shall apply.
SECTION 173: Report of police officer:
Notes Where the information discloses a cognizable as well as a non-cognizable offence the police officer is not debarred from investigating any non-cognizable offence which may ariseout of the same facts. He can include that non-cognizable offence in the charge-sheet which he presents for a cognizable offence. Both the offences if cognizable could be investigated together under Chapter XIV of the Code and also if one of them was a non-cognizable offence. AIR 1965 SC 1185: (1965)2 Cr LJ 250. Where in a cognizable case under Section 289, Penal Code the accused was not supplied copies of record under Section 173, it is only fair for the Magistrate to have at least allowed the accused to go through the statements made to the police when objection was taken at the close of the trial. 1960 Cr LJ 335 : AIR 1960 Cal 158. The Magistrate may accept or may not accept the report from the police under Section 173 recommending the dropping of the proceedings. 1960 Cr LJ 1226: AIR I960 Mys 237. In view of the directory nature of the provisions of Section 173 (4) the prosecution may prove additional documents in the usual way even after the commencement of the trial, provided the accused gets a full opportunity to cross-examine the prosecution witnesses in the light of their documents. ILR 1959 Cut 485: 1960 Cr LJ 1231: AIR 1960 Ori 150. A Magistrate empowered to take cognizance of any offence is competent to take cognizance even of offences exclusively triable by a Special Judge under Section 7(1) of Criminal Law Amendment Act, 1952. 61 Bom LR 591:1959 Cr LJ 1153: AIR 19591 Bom 437. Prosecution is not precluded to produce a man as witness on its behalf whose nams has not been included in the report or whose statement has not been furnished. 63 Cal WN 454: 1959 CrLJ 318: AIR 1959 Cal 176. The accused is entitled to be supplied copies of the statements of the prosecution witnesses taken by the police in the course of investigation of the non-cognizable offence under Section 22, Cattle Trespass Act. 62 Bom LR 407: 1960 Cr LJ 1421: AIR 1980 Bom 476. An order under Section 173 issuing ‘A summary’ is not an administrative order but a judicial order. 1959 Cr LJ 1153: ILR 1959 Bom 1088 : AIR 1959 Bom 437. Where no statements are recorded either under Section 161(3) or Section 164 then no right under sub-section (4) of Section 173 accrues to the accused. 1960 CrLJ 791: AIR 1960 Andh Pra 329. List of witnesses given by the police in the charge-sheet does not disable the prosecution from examining any other witness. 1960 Cr LJ 791 : AIR 1960 Andh Pra 329. It is only after a careful consideration of the material placed by a police officer in his report that he will be justified in calling for acharge-sheet. 61 Bom LR 1956: 1960 Cr LJ 800: AIR 1960 Bom 240. The information given to a Magistrate under Section 153 (2) is as much a report as a report under Section 173, Cr. P.C.) and he can take cognizance on such a report under Section 190 (l) (b). 1959 Cr LJ 1112 : 1959 Raj LW 138 : AIR 1959 Raj 191. Rule 203 of the Bombay Police Manual, Vol. Ill deals with the submission of final soports to be submitted by the Police Station Officer under Section 173, Cr. P. Code. 61 Bom LR 591 : 1959 Cr LJ 1153 : AIR 1959 BoM 437. The commitment order without recording an evidence is not illegal, unless it appears form it that the Magistrate had not perused the documents referred to in Section 173, Cr. P. C., and like a post office forwarded the case to Sessions for trial. 1960 CrLj 447 :1960 All LJ 838: AIR 1960 All 236. The non-compliance of the provisions of Section 173 (4) Cr. P. Code cannot vitiate the proceedings or completely shut out the reports in question. 1959 Cr LJ 448 : AIR 1959 Him It is not correct to say that the effect of a breach of the duty cast upon the police officer under Section 173(4) is to debar the prosecution for ever from examining any person, a copy of whose police statement has not been supplied to the defence. 61 Bom LR 118: 1959 Cr LJ 959 : AIR 1959 Bom 314. Where the police did not include A’s name as accused in final report under Section 173 but mentioned his name under heading “not sent up “the question of discharge of A. would not arise when he was not sent up upon charge-sheet submitted bypolice. AIR 1967 SC 1167: 1967 Cr LJ 1081. For power of Magistrate to call for charge sheet when the police have submitted final report.-See note in Section 109. AIR 1968 SC 117.
[(1) Every investigation under this Chapet shall be completed without unnecessary delay, and, as soon as it is completed, the officer-in-charge of the police station shall- (a) forward to a Magistrate empowered to take cognizance of the offence on a police report, a report, in the form prescribed by the State Government, setting forth the names of the parties, the nature of the information and the names of the person who appear to be acquainted with the circumstances of the case; and stating whether the accused (if arrested) has been forwarded in custody or has been released on his bond, and, if so, whether with or without sureties, and (b) communicate, in such manner as may be prescribed by the State Government, the action taken by him to the person if any by whom the information relating to the commission of the offence was first given.]
(2) Where a superior officer of police has been appointed under Section 158, the report shall, in any case in which the State Government by general or special order so directs, be submitted through that officer, and he may, pending the orders of the Magistrate, direct the officer-in-charge of the police station to make further investigation.
(3) Whenever it appears from a report forwarded under this section that the accused has been released on his bond, the Magistrate shall make such order for the discharge of such bond or otherwise as he thinks fit.
[(4) After forwarding a report under this section, the officer-in-charge of the police station shall, before the commencement of the inquiry or trial, furnish or cause to be furnished to the accused, free of cost, a copy of the report forwarded under sub-section (1) and of the first information report recorded under Section 154 and of all other documents or relevant extracts thereof, on which the prosecution proposes to rely, including the statements and confessions, if any, recorded under Section 164 and the statements recorded under sub-section (3) of Section 161 of all the persons whom the prosecution proposes to examine as its witnesses.
(5) Notwithstanding anything contained in sub-section (4), if the policeofficer is of opinion that any part of any statement recorded under subsection (3) of Section 161 is not relevant to the subject-matter of the inquiry or trial or that its disclosure to the accused is not essential in the interests of justice and is inexpedient in the public interests, he shall exclude such part from the copy of the statement furnished to the accused and in such a case, he shall make a report to the Magistrate staling his reasons for excluding such part: Provided that at the commencement of the inquiry or trial, the Magistrate shall, after perusing the part so excluded and considering the report of the police officer, pass such orders as he thinks fit and if he so directs, a copy of the part so excluded or such portion thereof, as he thinks proper, shall be furnished to the accused.]
SECTION 174: Police to inqure and report on suicide, etc:
State Amendments ANDHRA PRADESH.-(1) In sub-section (4) after the word “Bombay” insert the words “and in the State of Andhra as it existed immediately before the 1st November, 1956” (An. A. L. 0. 1953 and An. P. A. L. 0. 1957). (2) Added Territories.-In its application to the territories added under Section 3 (a) of Central Act LVI of 1959, the amendments made in Section 174 by Madras Act XXXI of 1956 shall stand repealed. MADRAS.-(1) In its application to the State of Madras including the transferred territory, in Section 174- (i) in sub-section (2) add at the end the words “or, as the case may be, to the Chief Presidency Magistrate in the Presidency town of Madras” ; and (ii) in sub-section (5), for the words “and any Magistrate” substiute the words “and Presidency Magistrate and any Magistrate”. (Madras Acts 31 of 1956, Sections 2 and 22 of 1957). (3) Added Territories.-In its application to the territories added to the State of Madra under Section 3(b) of Central Act LVI of 1959. (a) the words “and in the State of Andhra as it existed immediately before the 1st November, 1956″ added in Section 174(4) by Andh. Pra. A. L. 0” are omitted; T. N. (Add. Ter.) A.L.O. 1961 (w. e. f. 1-4-1960) ; Tamil Nadu A.L.O., 1969 (b) the amendments made in Section 174 by Madras Act XXXI of 1956 are extended as from 6-12-1961 by Mad. Act XXXIV of 1961. (4) In its application to the area comprised within the local limits of the ordinary original civil jurisdiction of the High Court of Madras, Section 174 shall be read as follows, namely: “174. Enquiry into violent or suspicious death to be ordinarily conducted by officer-in-clarge of police station.-(l) An officer-in charge of a police station, on receiving information that a person- (a) has committed suicide, or (b) has been killed by another, or by an animal, or by machinery, or by an accident, (c) has died under circumstances raising a reasonable suspicion that some other peperson has committed an offence, shall immediately give information thereof to the Commissioner of Police, and, in the absence of any rule or order under the next following section to the contrary, proceed to the place where the body of such deceased person is, and there, in the presence of five or more respectable inhabitants of the neighbourhood, 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, and staling 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 office of the Commissioner (3) In any of the following cases, namely- (a) in any case in which the Local Government may by rule so require, (b) in any case in which death appears to have been caused by violence, or there is any doubt regarding the cause of death, (c) in any other case in which the police officer conside it expedient so to do, he shall cause the body to be examined by a medical officer appointed in this behalf by the Local Government. (4) The police officer may, by order in writing, summon five or more persons as aforesaid for the purpose of the investigation under this section, and any other person who appears to be acquainted with the facts of the case. 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. (5) 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”. See Coroners (Madras) Act, 1889 (V of 1889), Section 4(2) [Repeated (Repealed by the Repealing and Amending Act, 1938 (1 of 1938)]. (5) In sub-section (4) for “Presidencies of Fort. St. George and Bombay”) substitute, “State of Tamil Nadu and the Presidency of Bombay.” MHARASHTRA.-(1) sub-section (5) for the words “or Magistrate of the first class and Magistrate” substitute the words “or any Executive Magistrate”. (Bom. Act 23 of 1951, Section 2 and Schedule). (2) After the re-organization of the State of Bombay in 1956, the amendment made in the first l74 by the above mentioned Bombay Act is extended to the newly added areas of Hyderabad, Kutchand Saurashtra and the region of Vidarbha as from 1-9-1959 by Bom. Act XCVII of of 1958. PUNJAB, HARYANA AND CHANDIGARH.-In sub-section (5) for the words “Magistrate of the first class and any Magistrate,” the words “Executive Magistrate of the first class and any of other Executive Magistrate” shall shall be substituted. (Punjab Act 25 of 1964). UNION TERRITORIES (except Chandigarh).-Same as that of Punjab. WEST BENGAL.-(1) To sub-section (1) of Section 174 the following proviso was added “Provided that unless the State Government otherwise directs, it shall not be necessary under this sub-section, in any case where the death of any person has been caused by enemy action, to make any investigation or to draw up any report or to send any intimation to a Magistrate empowered to hold inquests.” (Bengal Act 7 of 1944, Section 4). (2) The amendment made in Section 174 by the above-mentioned Bengal Act is extended in its application to- (a) Cooch-Behar Area as from 1-1-1951 by Central Act LXVII of 1950, Section 3 and West Bengal Act LXIII of 1950; (b) Chandernagore area as from 2-10-1954 by Central Act XXXVI of 1954, Section 17 and West Bengal Act V of 1955, Section 3; (c) Transferred Territories, that is territories transferred to the state of West Bengal under Section 3 of Central Act XL of 1956, as from 1-7-1959, by West Bengal Act XIX of 1958, Section 3. (3)(i) in sub-section (1), for the words “Sbu-Divisional Magistrate” substitute the words “Sub-divisional Executive Magistrate”. (ii) in sub-section (5), for the words “Sub-Divisional Magistrate or Magistrate of the first class, and any Magistrate”, substitute the words “Sub-divisional Executive Magistrate or Executive Magistrate of the first class and any others Executive “Magistrate”. W.B. Act 8 of 1970, Section 2 and Schedule, Item 62. Note Section 174 does not prescribe that any of the Panchayatdras should be examined as the witnesses in the case. The inquest report was proved by the Head Constable who conducted the inquest. Pati Ram v. State U. P., (1970)3 SCC 703.
(1) The office-in-charge of a police station or some other police officer specially empowered by the State Government, in that behalf, on receiving infoimation that a (a) has committed suicide, or (b) has been killed by another, or by an animal, or by machinery, or by an accident, or (c) has died under circumstances raising a reasonable suspicion that some other person has committed an offence, shall immediately give intimation thereof to the nearest 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 wound, fractures, bruises and other marks of injury as may be found on the body, 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) In the Presidencies of Fort St. George and Bombay, investigations under this section may be made by the head of the village, who shall then. report the result to the nearest Magistrate authorised to hold inquests,
(5) The following Magistrates are empowered to hold inquests, namely, any District Magistrate, ^[Sub-divisional Magistrate or Magistrate of the first class], and any Magistrate especially empowered in this behalf by the State Government or the District Magistrate,
SECTION 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. 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 applies, such persons shall not be required by the police-officer to attend Magistrate’s Court.
SECTION 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 inquest shall, and, in any other case mentioned in Section 174, clauses (a), (b) and (c) of sub-section (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, and if he does so, he shall have ali ihe powers in conducting it which he would have in holding an inquiry into an offence. The Magistrate holding such an inquiry shall record the evidence taken by him in connection therewith in any of the manners herein after prescribed according to the circumstances of the case.
(2) Power to disinter corpses.-Whenever such Magistrate considers it expedient io 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 end examined.
Part 6: proceddings in prosecutions:
CHAPTER 15: OF THE JURISDICTION OF THE CRIMINAL COURTS IN INQUIRIES AND TRIALS:
SECTION 177: Ordinary place of inquiry and trial:
Every offence shall ordinarily be inquired into and tried by a Court within the local limits of whose jurisdiction it was committed. Note Section 177-Place of enquiry or trial-Failure to pay dividends after declaration Mode of payment-When offence committed-Where complaint to be filed Companies Act, 1956-Section 207. 1970(1) SCC 437 : 1970 SCC (Cri) 190.
SECTION 178: Power to order cases to be tried in different sessions divisions:
Notwithstanding anything contained in Section 177, the State Government may direct that any cases or class of cases committed for trial in any district may be tried in any sessions division :
Provided that such direction is not repugnant to any direction previously used by the High Court under (S.15 of the Indian High Courts Act, 1861), [or (S.107 of the Government of India Act, 1915), [or (S.224 of the Government of India Act, 1935)], [or Art.227 of the Constitution of India)] or under this (S.526 of the Code of Criminal Procedure, 1973).
SECTION 179: Accused triable in district where act is done or where consequence enswues:
When a person is accused of the commission of any offence by reason of anything which has been done, and of any consequence which has ensued, such offence may bs inquired into or tried by a Court within the local limits of whose jurisdiction any such thing has been done, or such consequence has ensued. Notes Where opium was consigned illegally to self from Cawapore Berhampur, Magistrate at Berhampur can take cognizance under Section 9 (c), Opium Act for illegal imports of opium. AIR 1961 Ori 64. A temporary permit issued at Indore for use of truck between Indore and outstations was altered by foregoing dates of the period for a subsequent month. The truck had started from Indore and was on its return journey when it was checked in Nasik. In a charge for offence under Sections 471 and 474, 1. P. C. against the owner of the truck, it was held that. the trail at Indore was with jurisdiction. AIR 1955 SC 1921 : (1965)2 Cr LJ 822. Both the Courts where the act was cammitted and where the consequence ensued will have jurisdiction to try the offence, but ths act and the consequence should be closely related to each other and not merely a remote and contingent result. 1959 Cr LJ 14; 1959 All Cr R: AIR 1959 All 67. In cases of defamation, both the Courts of ths place from where the defamtory letter was posted and of the place at which it was published have jurisdiction to try the offence 1959 Mad LJ (Cr) 377 : 1959 Cr LJ 1408. Where the commission of offienccs and their abetment arise out of the same transaction, these several offences can be properly joined under Section 259 but nevertheless this fact cannot invest the Court with territorial jurisdiction. 1958 Ker L T 1079 = 1959 Cr LJ 1172 = A I R 1959 Ker 311. A Court trying an accused for an offence of conspiracy has jurisdiction to try the accused for all offences committed by him in pursuance of that conspiracy even though some of the offences were committed beyond the territorial jurisdiction of that Court, (AIR 1961 S C 1589 and AIR 1961 S C 1601 relied upon). A I R 1963 S C 1620.
SECTION 180: Place of trial where act is offence by reason of relation to other offence:
When an act is an offence by reason of its relation to any other act which is also an offence or which would be an offence if the doer were capable of committing an offence, a charge of the first-mentioned offence may be inquired into or tried by a Court within the local limits of whose jurisdiction either act was done. Notes Section 180 contemplated two offences of which one category is designated ‘as the fine mentioned offence’. (1960) 2 M L J 340. For the place of tiral for the offence of cheating, see Section 197, supra. 1960 CrLJ 410=A I R 1960 S C 266.
Illustrations (a) A charge of abetment maybe inquired into or tried either by the Court within the local limits of whose jurisdiction the abetment was committed, or by the Court within the local limits of whose jurisdiction the offence abetted was committed, (b) A charge of receiving or retaining stolen goods may be inquired into or tried either by the Court within the local limits of whose jurisdiction the goods were stolen, or by any Court within the local limits of whose jurisdiction any of them were at any time dishonestly received or retained. (c) A charge of wrongful concealing a person known to have been kidnapped may be inquired into or tried by the Court within the local limits of whose jurisdiction the wrongful concealing, or by the Court within the local limits of whose jurisdiction the kidnapping, took place.
SECTION 181: Being a thug or belonging to a gang of dacoits, escape from custody, etc:
Notes It is enough if the property which is the subject of the offence was received or retained by the accused at a particular place to give jurisdiction to the Magistrate of that place to try the case, even though the properly was received lawfully and innocently at that place and ws subsequently dealt with dishonestly at another place. 1960 M P L J (Notes) 180.
(1) The offence of being a thug, of being a thug and committing murder, of dacoity, of dacoity with murder, of having belonged to gang of dacoits, or of having escaped from custody, may be inquired into or tried by a Court within the local limits of whose jurisdiction the person charged is.
(2) Criminal misappropriation and criminal breach of trust.- The offence of criminal misappropriation or of criminal breach of trust may be inquired into or tried by a Court within the local limits of whose jurisdiction any part of the properly which is the subject of the offence was received or retained by the accused person, or the offence was committted.
[(3) The ft.- The offence of theft, or any offence which includes the or the possession of stolen property, may be inquired into or tried by a Court within the local limits of whose jurisdiction such offence was committed or the property stolen was possessed by the thief or by any person who receied or retained the same knowing or having reason to believe it to be stolen],
(4) Kidnapping and abduction.-The offence of kidnapping or abduction may be inquired into or tried by a Court within the local limits of whose jurisdiction the person kidnapped or abducted was kidnapped or abducted or was conveyed or concealed or detained.
SECTION 182: Place of inquiry or trial where scene of offence is uncertain or not in one district only, or where offence is continuing, or consists of several acts:
When it is uncertain in which of several local areas an offence was committed, or where an offence is committed partly in one local area and partly in another, or where an offence is a continuing one, and continues to be committed in more local areas than one, or where it consists of several acts done in different local areas, it may be inquired into or tried by a Court having jurisdiction over any of such local areas. Notes Where the accused ii not found to have been prejudiced bv the trial at the wrong place,the trial is not vitiated. A I R 1966 S C 128=1966 Cr L J 106.
SECTION 183: Offence committed on a journey:
An offence committed whilst the offender is in the course of performing a journey or voyage may be inquired into or tried by a Court through or into the local limits of whose jurisdiction the offender, or the person against whom, or the thing in respect of which, the offence was committed, passed in the course of that journey or
SECTION 184: Offences against Railway, Telegraph, Post-office Arms Acts:
All offences against the provisions of any law for the time being in force relating to Railways, Telegraphs, the Post-office’ or Arms and Ammunition may be inquired into or tried in a presidency-town whether the offence is stated to have been committed within such town or not: State Amendment GUJARAT For the words “presidency town” wherever occurring, substitute the words “City of”
Provided that the offender and all the witnesses necessary for his prosecution are to be found within such town.
SECTION 185: High Court to decide, in case of doubt, district, where inquiry or trial shall take place:
[ Notes A theft was committed in Assam but stolen articles were recovered from the accused at Panipat in Punjab, and a conviction under Section 418, Penal Code cannot be passed unless theft is proved to have been committed in respect thereof, hence the trial under Section 380, Penal Code should get priority and the hands of the Panipat Court should be stayed. 1959 Cr L J 169=A I R 1959 Ass 20. Section 185 only lays down the place where an enquiry or trial may be held, it does not lay down how such enquiry or trial may be held. 1961 A LJ 335 : 1951 A W R 213.
(1) Whenever a question arises as to which of two or more Courts subordinate to the same High Court ought to inquire into or try any offence, it shall be decided by that High Court.
(2) Where two or more Courts not subordinate to the same High Court have taken cognizance of the same offence, the High Court, within the local limits of whose appellate criminal jurisdiction the proceedings were first commenced, may direct the trial of such offender to be held in any Court subordinate to it, and if it so decides, all other proceedings against such person in respect of such offence shall be discontinued. If such High Court upon the matter having been brought to its notice, does not so decide any other High Court, within the local limits of whose appellate criminal jurisdiction such proceedings are pending may give a like direction, and upon its so doing all other such proceedings shall be discontinued.]
SECTION 186: Power to issue summons or warrant for offence committed beyond local jurisdiction-Magistrate’s procedure on arrest:
State Amendments MAHARASHTRA (1) In sub-section (1), for the words “a District Magistrate, a sub-divisional Magistrate, or if he is specially empowered in this behalf by the State Government a Magistrat of the first class” substitute the words “or a Magistrate of the first class specially empowered in this behalf by the State Government in consultation with the High Court”. (Bam. Act 23 of 1951, Section 2 and Schedule). (2) After the reorganization of the State of Bombay in 1956, the amendment made in Section 186 by the above-mentioned Bombay Act is extended to the newly added areas of Hyderabad, Kutch and Saurashtra and the region of Vidarbha as from 1-9-1959 by Bombay Act XCVII of 1958. MYSORE In sub-section (1) of Section 186 for the words “a Presidency Magistrate, a District Magistratr, a Sub-divisional Magistrate or if be is specially empowered in this behalf by the State Government a Magistrate of the first class” substitute the words “a Judicial Magistrate”. PUNJAB, HARYANA AND CHANDIGARH In sub-section (1) for the words “a Presidency Magistrate, a District Magistrate, a sub-divisional Magistrate or, if he is specially empowered in this behalf by the State Government, a Magistrate of the first class”, the words “a District Magistrate, a Chief Judicial Magistrate, a Sub-divisional Magistrate, or, if he is specially empowered in this behalf by the State Government or the High Court, as the case maybe, an Executive or a Judicial Magistrate of the first clasi” shall be substituted. UNION TERRITORIES (EXCEPT CHANDIGARH) In sub-section (1) of Section 186 for the words “a Presidency Magistrate, a District Magistrate, a sub-divisional Magistrate, or, if he is specially empowered in this behalf by the State Government a Magistrate of the first class”, substitute the words “a District Magistrate, a Sub-divisional, or, if he is specially empowered in this behalf by the State Government, an Exiecutive Magistrate of the first class, or, if he is specially empowered in this behalf by the State Government, in consultation with the High Court, a Judicial Magistrate of the first WEST BENGAL In sub-section (1) of Section 186, for the words beginning with ‘a District Magistrate’ and ending with ‘a Magistrate of the first class’, substitute the words “Sub-divisional Judicial Magistrate, or, if he is specially empowered in this behalf by the State Government, in consultation with the High Court, a Judicial Magistrate of the first class”.
(1) When a Presidency Magistrate, a District Magistrate, a Sub-divisional Magistrate, or, if he is specially empowered in this behalf by the State Government, a Magistrate of the first class, sees reason to believe that any person within the local limits of his jurisdiction has committed without such limits (whether within or without [India] an offence which cannot, under the provisions of Sections 177 to 184 (both inclusive), or any other law for the time being in force, be inquired into or tried within such local limits, but is under some law for the time being in force triable in [India], such Magistrate may inquire into the offence as if it had been committed within such local limits and compel such person in manner hereinbefore provided to appear before him, and send such person to the Magistrate having jurisdiction to inquire into to try such offence, or, if such offence is bailable, take a bond with or without sureties for his appearance before such Magistrate.
(2) When there are more Magistrates than one having such jurisdition and the Magistrate acting under this section cannot satisfy himself as to the Magistrate to or before whom such person should be sent or bound to appear, the case shall be reported for the order of the High Court.
SECTION 187: Procedure where warrant issued by subordinate Magistrate:
State Amendments MAHARASTRA (1) In sub-section (1) for the words “by a Magistrate other than a Presidency jitrate or District Magistrate, such Magistrate shall send the perion arrested to the get or Sub-divisional Magistrate” subitituti the words “the Magistrate issuin3 the lilt shall send the person arrested to the Sessions Judge”. (Bombay Act 23 of 1951, Section iSriwdule). (2) Same as that under Section 186 ofMaharashtra (2).j In sub-section (1) of Section 187, for the wordi “by a Migiltrate other than a deney Magistrate or District Mrg’ntrate, such Magistrate shall send the person arrested to the District or Sub-divisional Magistrate” substitute the words “the Magistrate issuing the warrant shall send the person arrested to the Sessions Judge”. PUNJAB, HARYANA AND CHANDIGARH In sub-section (1) for the words “a Presidency Magistrate or District Magistrate, such Magistrate shall send the person arrested to the District or Sub-divisional Magistrate”, the words “a District Magistrate or Chief Judicial Magistrate, uch Magistrate shall send the person arrested to the District or Sub-divisional Magistrate, or, as the case may be, to the Chief Judicial Magistrate” shall be substituted. (Pubjab Act 25 of 1964).
(1) If the person has been arrested under a warrant issued under Section 186 by a Magistrate other than a Presidency Magistrate or District Magistrate, such Magistrate shall send the person arrested to the District or Sub-divisional Magistrate to whom he is subordinate, unless the Magistrate having jurisdiction to inquire into or try such offence issues his warrant for the arrest of such person, in which case the person arrested shall be delivered the police-officer executing such warrant or shall be sent to the Magistrate whom such warrant was issued.
(2) If the offence which the person arrested is alleged or suspected to fe committed is one which may be inquired into or tried by any Criminal fit in the same district other than that of the Magistrate acting under Hon 186, such Magistrate shall send such person to such Court.
SECTION 188: Liability of Indian citizens for offences committed out of India:
[When an offence is committed by- Notes As the offence committed by the accused was not at a place beyond British India, there was no need for the existence of a certificate of a Political Agent or in the absence of such person, a sanction of the Provincial Govenment. 1960 Cr LJ 410=A I R 1960 S C 256.
(a) any citizen of India in any place without and beyond India;. or
(b) any person on any ship or aircraft registered in India, wherever it may be; 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 : Political Agents to certify fitness of inquiry into charge.-Provided that [notwithstanding anything in any of the preceding sections of this chapter] no charge as to any such offence shall be inquired into in. [India] unless the Political Agent, if there is one, for the territory in which. the offence is alleged to have been committed, certifies that, in his opinion,. the charge ought to be inquired into in [India] ; and, where there is noPolitical Agent, the sanction of the Slate Government shall bo required : Provided, also, that any proceedings taken against any person under this section which would be a bar to subsequent proceedings against such person for the same offence if such offence had been committed in [India] shall be a bar to further proceedings against him under [the (Extradition Act, 1903), in respect of the same offence in any territory beyond the limits of [India].
Section 189: Power to direct copies of depositions and exhibits to be received in evidence:
Whenever any such offence as is referred to in Section 188 is being inquired into or tried, the Slate Government may, if it thinks fit, direct that copies of depositions made or exhibits produced before the Political Agent or a judicial officer in or for the territory in which such offence is alleged to have been committed shall be received as evidence by the Court holding such inquiry or trial in any case in which such Court might issue a commission for taking evidence as to the matters to which such depositions of exhibits relates.
Section 190: Cognizance of offences by Magistrates:
State Amendments MHARASHTRA (1) (i) In sub-section (1)- (a) delete the words “District Magistrate or Sub-divisional Magistrate” ; (b) for the words “any other” substitute the words “any judicial” ; (c) after the words “in this behalf” insert the words “by the State Government in consultation with the High Court.” (ii) In sub-section (2), delete the words “or the District Magistrate subject to the general or special orders of the State Government”. (iii) In sub-section (3), after the words “the State Government may” insert the words “in consultation with the High Court”. (Bombay Act 23 of 1951, Section 2 and Sch.). (iv) In sub-section (1) as amended by Bombay Act 23 of 1951. For the words “in this behalf by the State Government in consultation with the High Court” substitute the words “in that behalf under Section 37”. (Bombay Act 34 of 1953, Section 8). (2) Same as that under Section 186 of Maharasthra (2). In its application to the State of Mysore, in Section 190- (1) in sub-section (1), (a) omit the words “District Magistrate or Sub-Divisional Magistrate” ; and (b) for the words “any other Magistrate”, substitute the words “any Magistrate of the first class, or any Magistrate of the second or third class”. (Mys. Act XIII of 1965). (2) Omit sub-sections (2) and (3). PUNJAB, HARYANA. AND CHANDIGARH (i) in sub-section (1), for the words “any Presidency Magistrate, District Magistrate or Sub-divisional Magistrate, and any other Magistrate”, the words “any Chief Judicial Magistrate and any other Judicial Magistrate’ ‘shall be substituted; (ii) in sub-section (2) for the words “State Government, or the District Magistrate subject to the general or special orders of the State Government, may empower any Magistrate”, the words “High Court, or the Chief, Judicial Magistrate subject to the general or special orders of the High Court, may empower any other Judicial Magistrate” shall be substituted ; and (iii) in sub-section (3), for the words “State Government may empower any Magistrate”, the words “High Court may empower any Judicial Magistrate” shall be substituted. UNION TERRITORIES (EXCEPT CHANDIGARH) In its application to the Union territories in Section 190- (i) Same as that of Punjab (1). (ii) in sub-section (2), for the words “The State Government, or the District Magistrate subject to the general or special orders of the State Government, may empower any Magistrate”, substitute the words ”The State Government, in consultation with the High Court or the Chief Judicial Magistrate, subject to the general or special orders of the High Court may empower any other Judicial Magistrate”; and (iii) in sub-section (3), for the words “State Government may empower any Magistrate”, substitute the worde “State Government, in consultation with High Court, may empower any Judicial Magistrate”. (Act 19 of 1969). WEST BENGAL In its application to the State of West Bengal, in Section 190- (i) in sub-section (1), for the words “District Magistrate or Sub-divisional Magistrate, and any other”, substitute the words, “Sub-divisional Judicial Magistrate, and any other Judicial” ; (ii) after sub-section (1), insert the following as sub-section (1-A) : “(1-A) Any District Magistrate or Sub-divisional Executive Magistrate or any other Executive Magistrate of the First or Second Class specially empowered in this behalf by the State Government may take cognizance of any offence upon information received from any person other than a police-officer, or upon his own knowledge or suspicion, that such offence has been committed”; (iii) for sub-section (2), substitute the following namely : “(2) The State Government, in consultation with the High Court, or the Sessions Judge subject to the general or special orders of the State Government in consultation with the High Court, may empower any Judicial Magistrate to take cognizance under sub-section (1), clause (a) or clause (b), of offences for which he may try or commit for trial” ; and (iv) in sub-section (3), for the words “State Government may empower any” substitute the words “State Government, in consultation with the High Court, may empower any Judicial”. (W. B. Act 8 of 1970). Notes In Section 190, a distinction is made between the classes of persons who can start a criminal prosecution. Under the three clauses of Section 190 (1) criminal prosecution can be initiated by a police officer by a report in writing, (ii) upon information received from any person other than a police officer or upon the Magiscrate’s own knowledge or suspicion, and (iii) upon receiving a complaint of facts. If the report in a case falls within (i) above, then the procedure under Section 251-A, Cr. P.O. must be followed. If it falls in (ii) or (iii) then. the procedure under Section 253, Cr. P. C. must be followed. A I R 1965 S C 1185= 1965 (2) Only if conditions for initiation of proceedings as set out in Part B of Chapter 15 are fulfilled the court can take cognizance. A I R 1966 S C 69 = 1966 Cr L J 75. There is no statutory bar to a police officer filing a complaint (not being a chargesheet contemplated by Section 173 (1) and the Magistrate taking cognizance of it even in the case of a cognizable offence The accused cannot besaid to be prejudiced by not having. the benefit of trial under Section 251-A as there are no special advantages to the accused in a trial under Section 231-A. 1960 Ker L J 271 = 1960 Cr L J 1334 =.AI R 1960 Ker 315. A Magistrate empowered to take cognizance of plenary offences upon a report in. writing by any police-officer, has got jurisdiction to try offences exclusively triable by a Special Judge. 1959 Cr L J 1153 =61 Bom L R 591= A I R 1959 Bom 437. It is Section 190 (1) which confers powers of cognizance on the court or a right of complaint on the person aggrieved, and It is wrong to think that Section 198 either confers a. power or provides a remedy. 1958 Ker L T 1158 = 1959 Cr L J 464 = A I R 1959 Ker 190. Sections 480 and 482 are not exhaustive and do not derogate from the power of a. court to take cognizance of the offence under Section 190(l) (a) on a complaint under Section 195, Cr. P. Code. 1959 All L J 265 = 1959 Cr LJ 1261 = A I R 1959 All 693. In what cases a Magistrate should take cognizance is a matter for him and not for the police. 1960 M L J (Cr) 594. The issue of summons against the accused under Section 204, is taking cognizance of an offence. Hence, the Chief Presidency Magistrate who could not take cognizance of an offence as triable by the Special Court, has no power to issue a summon against the accused. 1960 Cr L J 1198 = A I R 1960 Cal 570. The opinion of the investigating officer as regards the nature of the offence committed. by an accused cannot bind the Magistrate even when the latter adopts the procedure prescribed in Section 251-A, Cr. P. Code. 26 Cut L T 647 =A I R 1961 Ori 64. Where cognizance is in fact taken on a police report following an illegal or defective investigation, the result of the trial which follows it cannot be set aside unless miscarriage of justice has occurred. 1959 Cr L J 113 = A I R 1959 All 82. In a prosecution for an offence under Section 41 of the Madhya Bharat Excise Act, the challan filed by the Excise Officer is merly a complaint under Section 190 (1), Cr. P. Code and the accused is entitled to be supplied with a list of the prosecution witnesses and a copy of the challan. 1959 M P L J (Notes) 28. An act in respect of which a complaint may be made under Section 20 of the Cattle Trespass Act will also amount to an offence cognizable by a Sub-divisional Magistrate who can transfer the same to another subordinate Magistrate. 1959 CrLJ 488 =A I R 1959 “Taking cognizance of” means cognizance of offence and not the offenders. Once he takes cognizance of an offence it is his duty to find out who the offenders really are and once he comes to the conclusion that apart from the persons sent up by the Police some other persons are involved, it is his duty to proceed against those persons. The summoning of the additional accused is part of the proceeding initiated by his taking cognizance of an offence. A I R 1967 S C 1167 = 1967 Cr L J 1081. Taking cognizance is a different thing from initiation of proceedings. Before it can be said that the Magistrate has taken cognizance under Section 190, he may apply his mind and consider a report submitted to him under Section 173 and also do something for proceedings under the subsequent provisions of the Code as under Section 200. 61 Bom L R 591 = 1959 Cr L J 1153=A I R 1959 Bom 437. When a Magistrate applies his mind for the purpose of proceeding under Section 200 and subsequent sections of Chap. XVI or under Section 204 of Chap. XVIII of the Code, then it can be positively stated that he has taken cognizance of the offence. (1959) 2 S C A 268 = 1959 Cr L J 1363==A I R 1959 S C 1118. The rounds for proceeding under Section 190(1) are not mutually exclusive, and if one of the grounds is already there, the Magistrate need not necessarily reject a request to proceed on other grounds also. 1959 Nag L J 515 = 1960 Cr L J 326 =A I R 1960 Bom 116. There is no reason to restrict Section 190( 1 ) (b) only to reports under Section 173. The information given to the Magistrate under Section 153(2) is as much a report as under Section 173, enough to move the Magistrate to take cognizance. 1959 Baj L W 138=1959 Cr L J 1112 = A I R l959 Raj l91. An investigation of a non-cognizable offence without the order of a Magistrate is i..egal but it will not vitiate the result unless miscarriage of justice has been eased thereby. 1959 Cr L J 1112 = A I R 1959 Raj l91. District Magistrate appointed as Commissioner of Inquiry under Commission of Inquiry Act, 1952, is competent to prefer complaint. 1960 Ker L J 616==1960 Cr L J 1466 A I R 1960 Ker 350. Provisions of Section 155(2) cannot be rendered nugatory byregarding police report as a valid report under Section 190(1) (b). 64 Cal W N 1026. Since the amendment f Section 190(l)(t), a report by a police officer on even a noncognizable offence is a complaint within the meaning of Section 4(b) of the Code authorising the Magistrate to take cognizance even of a non-cognizable offence. 1959 Cr L J 1163= A I R 1959 Cal 640. What procedure is to be adopted in a prosecution under Opium Act on repert of Excise Sub-Inspector, see Section 252, infra. A I R 1961 Ori 64. Police report made in a non-cognizable case should not be treated as a complaint, Section 247, infra. 1960 Cr LJ 858==A I R 1960 Raj 150. A Central Excise Officer can only make a complaint under clause (a). His report it not a Police Report. AIR 1966 S C 1746 = 1966 Cr L J 1353. A Magistrate cannot direct the Police to say what he thinks it should say, for the Court has no judicial control over the investigating officer to report under Section 173 of Cr. P. Code in a particular manner. 1959 M P L J 875=1960 Cr L J 79==A I R 1960 Madh Pra 12. Where the order of the Magistrate directing the accused, a police officer to be put up for trial without waiting for the final report of the Department conducting enquiry wasproper, see Section 173, supra. (1961) 1 Andh W R 139. Where the Addl. Sessions Judge who was also the Addl. District Magistrate took cognizance of a case under the provisions of Penal Code in a revision petition filed under Section 435, Cr. P. Code, it was held in proceedings challenging the validity of the order that the revision petition was not meant to be a complaint within the meaning of Section 4( 1) (b) and Section 190(1)(a), Cr. P. Code, but the facts in the petition constituted information within Section 190(1)(c) and the Addl. Sessions Judge in the capacity of District Magistrate may be entitled to take cognizance of the case. 1960 Cr L J 455 == A I R 1960 Aandh Pra 184. Where the Police reported ‘no case’ against the accused after investigation order by Magistrate to the Police to charge-sheet the accused, is illegal and was modified in so far it required the police to file charge-sheet against the accused. 1959 M P L J 875 =1960 Cr.L J 79 =A I R 1960 Madh Pra 12. Section 190 ( 1) (c) empowers the Magistrate to take cognizance upon his own knowledge or suspicion that an offence has been committed. (1959) 2 Andh W R 354=1959 Mad L J (Cr) 782. A criminal complaint can be filed, as a general rule, by any one, whether he is aggrieved by the offence or not as such it becomes perfectly clear that a criminal proceeding cannot terminate on the death of the complainant. 1963 A L J 239=1963 A W R 196. Polish report mentioned in Section 207(a) is a report mentioned in Section 190 (l) (b) and once cognizance is taken under Section 19(l)(b), proceeding is instituted within Section 207(a) . A I R 1967 S C 1167=1967 Cr L J 1081. See also Section 173. AIR 1967 S C 1167 = 1967 Cr L J 1081. Under Section 190(1) (b) of the Code of Criminal Procedure, the Magigtrate is bound to takecognizance of any cognizable offence brought to his notice. The words “may take cognizance” in the context mean “must take cognizance”. He has no discretion in the matter, other wise that section will be violative of Article 14. Sub-Divisional Magistrate, Delhi v. Ram Kali, A I R 1968 S C 1. The decision of the High Court was therefore right that the Court could not take cognizance of the offence allaged against the Ahlmad and his abettor the Lekhpal because the offence was fabricating of false evidence in a case which was in fact pending and the false entry was made with the object that an erroneous opinion be formed on a material point. Such a case could only be instituted by a Court in which or in relation to which this offence was committed and a private complaint was therefore incompetent. Kamla Prasad Singh v- Hari Nath Singh, A I R 1968 S C 19. See also Notes in Section 169. AIR 1968 S C 117. For power of Magistrates to ask for investigation before and after taking cognizance of the case.- See Notes in Section 156. 1970 (3) SCC 10 = 1970 SCC (Cri) 360. For power of Magistrate to direct the police to submit a charge-sheet after final report.-See Notes in Section 156. 1970 (1) SCC 496 = 1970 SCC (Cri) 218. Taking cognizance does not involve any formal action or indeed action of any kind but occurs as soon as a Magistrate applies his mind to the suspected commission of an offence. Cognizance,therefore, takes place at a point when a Magistrate first takes judicial notice of an offence. This is the position whether the Magiztrate takes cognisance of an offence on a complaint, or on a police report, or upon information of a person other than a police officer. Therefore, when a Magistrate takes cognizance of an offence upon a police report, prima facie he does so of the offence or offences disclosed in such report. 1971 SCC (Cri) 728.
(1) Except as hereinafter provided, any Presidency Magistrate, District Magistrate or Subdisional Magistrate, and any other Magistrate specially empowered in this behalf, may take cognizance of any offence- (a) upon receiving a complaint of facts which constitute such offence; [(b) upon a report in writing of such facts made by any police-officer; (c) upon information received from any person other than a policeofficer, or upon his own knowledge or suspicion, that such offence has been committed.
(2) The State Government, or the District Magistrate subject to the general or special orders of the State Government, may empower any Magistrate to take cognizance under sub-section (1), clause (a) or clause (b), of offences for which he may try or commit for trial.
(3) The State Government may empower any Magistrate of the first or second class to take cognizance under sub-section (1), clause (c), of offences for , which he may try or commit for trial.
SECTION 191: Transfer or commitment on application of accused:
When a Magistrate takes cognizance of an offence under sub-section (1), clause (c), of the preceding section, the accused shall, before any evidence is taken, be informd that he is entitled to have the case tried by another Court, and if the accused, or any of the accused if there be more than one, objects to being trued by such Magistrate, the case shall, instead of being tried by such Magistrate, be committed to the Court of Session or transferred to another Magistrate State Amendment WEST BENGAL Section 191, shall be re-numbered as sub-section (1) thereof and in sub-section (1), so re-numbered, (i) for the word “Magistrate”, wherever it occurs, substitute the words “Judicial Magistrate”; and (ii) after sub-section (1) as so re-numbered, insert the following as sub-section (2), namely: “(2) When an Executive Magistrate takes cognizance of an offence under subsection (1-A) of Section 190, he shall transfer the cae to a Judicial Magistrate having jurisdiction to try the same and shall send the accused to such Magistrate, or may, subject to the provisions of this Code, release him on bail on taking from him a bond with or without surety for his appearance before such Magistrare.” (W. B. Act 8 of 1970). Notes Whether Magistrate is bound to take action on police report, see Section 173, supra, 1960 Cr L J 1226 : A I R 1960 Mys 237.
SECTION 192: Transfer of cases by Magistrates:
State Amendments GUJARAT Same as that of Maharashtra (1). Note.-Chief Magistrate in the City of Ahmedabad exercises the jurisdiction of a Chief Presidency Magistrate. (Guj.Act XIX of 1961). MAHARASHTRA (1) (i) in sub-section (1), delete the words “District Magistrate or Sub-divisional Magistrate”; (ii) in sub-section (2), (a) for the words “Any District Magistrate”, subsitute the words “A Sessions Judge”; (b) for the words “in his district” substitute the words “in the sessions division.” (Bombay Act XXIII of 1951). (iii) after sub-section (2) insert the following, namely: “(3) Any District Magistrate or Sub-divisional Magistrate may transfer any case of which he has taken cognizance, for inquiry or trial to any Magistrate subordinate to him and such Magistrate may dispose of the case accordingly.” (Bom. Act VIII of 1954). (2) Same as that under Section 188 of Maharashtra (2). MYSORE (1) Omit sub-section (1), (2) in sub-section (2) : (a) for the words “Any District Magistrate”, substitue “A Sessions Judge” and (b) for the words “in his district”, substitute the words “in the Sessions Division”. (Mys. Act XIII of 1965). PUNJAB, HARYANA AND CHANDIGARH (i) In sub-section (1) for the words “Any Chief Presidency Magistrate, District Magistrate or Sub-divisional Magistrate”, substitute the words “Any Chief Judicial Magistrate”; and (ii) in sub-section (2) for the words “District Magistrate”, substitute the words “Chief Judicial Magistrate”. (Punj. Act XXV of 1966) ; (Act 31 of 1966). RAJASTHAN Abu Area Same as that of Maharashtra (2). UNION TERRITORIES (EXCEPT CHANDIGARH) Same as that of Punjab. WEST BENGAL In its application to the State of West Bengal, in Section 192- (i) in sub-section (1), for the words “or Sub-divisional Magistrate”, snbstitute the words, “Sub-divisional Executive Magistrate or Sub-divisional Judicial Magistrate”; (ii) for sub-section (2), subititute the following : “(2) Any District Magistrate may empower any Executive Magistrate of the first class who has taken cognizance of any case to transfer the same for inquiry to any other specified Executive Magistrate within the district, who is competent under this Code to hold such inquiry” ; and (iii) after sub-section (2) insert the following as sub-section (3), namely : “(3) Any Chief Presidency Magistrate or Sessions Judge may empower a Presidency Magistrate or any Judicial Magistrate of the first class, as the case may be, subordinate to him, who has taken cognizance of any case to transfer the same to any other Presidency Magistrate or Judicial Magistrate, as the case may be, who is competent under this Code to try the accused or commit him for trial, and such Presidency Magistrate or Judicial Magistrate may dispose of the case accordingly.” (W. B. Act VIII of 1970). Notes The Additional Sessions Judge is also an Additional District Magistrate and when officer or authority has two capacities and an order is made by such officer or authority it will be valid if it is referable of either to the capacities of the officer or the authority concered. (1962) 2 An W R 324. The transferee Magistrate is in full seisin of the entire case and has jurisdiction to issue process against those persons who arc not named as accused in the original order. 24 Cut L T 155 = I L R 1958 Cut 74. In absence of any indication that the A. D. M. while transferring complaint to another First Class Magistrate did apply his mind to it, it cannot be said that the A. D. M. had taken cognizance of the case. 1959 Cr L J 148 = A I R 1959 Ass 231.
(1) Any Chief Presidency Magistrate; District Magistrate or Sub-divisional Magistrate may transfer any case, of which he has taken cognizance, for inquiry or trial, to any Magistrate subordinate to him.
(2) Any District Magistrate may empower any Magistrate of the first class who has taken cognizance of any case, to transfer it for inquiry or trial to any other specified Magistrate in his district who is competent under this Code to try the accused or commit him for trial; and such Magistrate may dispose of the case accordingly.
SECTION 193: Cognizance of offences by Courts of Session:
State Amendments GUJARAT Same as that of Maharashtra (1). MAHARASHTRA (1) In its application to the State of Maharashtra, in sub-section (2) of Section 193 after the words “the State Government” insert the words “in consultation with the High Court.” (Bombay Act XXIII of 1951). (2) After the reorgonisation of the State of Bombay in 1956, the amendment made in Section 193 by the above-mentioned Bombay Act is extended to the newly added areas of Hyderabad, Kutch and Saurashtra and the region of Vidarbha as from 1-9-1959 by Bombay Act XCVII of 1958. PUNJAB, HARYANA AND CHANDIGARH In sub-section (2) of Section 193, for the words “State Government”, substitute the words “the High Court”. (Punjab Act XXV of 1964 and Act 31 of 1966). RAJASTHAN Abu Area Same as that of Maharashtra (1). UNION TTERRITORIES (EXCEPT CHANDIGARH) . Same as that of Maharashtra (1). WEST BENGAL (i) In sub-section (1) for the word “Magistrate”, substitute the words “Judicial Magistrate”; and (ii) Same as that af Maharashtra (1). Notes Where the Additional Sessions Judge transferred the case from the file of the Sessions Judge to his own file, this is illegal, and any conviction passed by him is liable to be set aside. 1959 Cr L J 186= 1959 J and K 11. The High Court can transfer a caie pending before a Magistrate to the Court of Additional Sessions Judge. A I R 1956 S C 595 = 1966 Cr L J 465. Courrs of Special Judges constituted under Criminal Law Amendment Act, 1952 though they are placed on the same footing as the Courts of Sessions, can take cognizance of any offence without the accused being committed to it. 61 Bom L R 591 == 1959 Cr L J 1153=A I R 1939 Bom 437. Section 193(2) is not hit by by Article 14 of the Canstitution and is not uetra vires. 1958 Cr L J 1446 = 1958 All Cr R 411 =A I R 1958 All 838.
(1) Except as otherwise expressly provided by this Code or by any other law for the time being in force, no Court of Session shall take cognizance of any offence as a Court of original jurisdiction unless the accused has been committed to it by a Magistrate duly empowered in that behalf.
(2) Additional Sessions Judges and Assistant Sessions Judges shall try such cases only as the Slate Government by general or special order may direct them to try, or [* * *] as the Sessions Judge of the division, by general or special order, may make ever to them for trial.
SECTION 194: Cognizance of offences by High Court:
(1) The High Court may take cognizance of any offence upon a commitment made to it in manner hereinafter provided. [Nothing herein contained shall be deemed to affect the provision of any letters patent or [law] by which a High Court is constituted or continued, or any other provision of this Code].
(2) Informations by Advocate General.- (a) Notwithstanding anything in this Code contained, the Advocate General may, with the previous sanction of [* * *] the State Government, exhibit to the High Court, against persons subject to the jurisdiction of the High Court, informations for all purposes for which Her Majesty’s Attornery-General may exhibit informations on behalf of the Crown in the High Court of Justice in England. (b) Such proceedings may be taken upon every such information as may lawfully be taken in the case of similar, informations filed by Her Majesty Attorney-General so far as the circumstances of the case and the practice and procedure of the said High Court will admit. (c) All fines, penalties, forfeitures, debts and sums of money recovered or levied under or by virtue of any such information [shall form part of the revenues of the State]. (d) The High Court may make rules for carrying into effect the provisions of this section.
SECTION 195: Prosecution of contempt of lawful authority of public servants:
Notes A disregard of the provisions of the section vitiates the whole proceedings and cannot be cured by the provisions of Section 537 of the Code. 1959 All Cr R 388. The provisions of Section 195 cannot be evaded by changing the garb or label of an offence covered by the section. A I R 1966 S C 1775= (1966) 2 S C W R 162. Section 195 does not bar the trial of the accused for the distinct offence under Section 353 of the Penal Code, though it may be parctically based on the same facts as for the prosecution under Section 186 of the Penal Code which is barred for want of necessary sanction. under Section 195, Cr. P. C. Ibid. Where the Sub-divisional Magistrate on making inquiry regarding a demand of bribery given to the Chief Minister, found that the information was false, he can file a complaint against the informant for an offence under Section 182, Penal Code and in that sense he is a public servant under Section 195. 1959 AII L J 44 = 1959 Cr L J 683 = A I R 1959 All 378. Where information to police has been followed by criminal complaint to Court, prosecution of informant for offence under 1. P. Code, Section 211 cannot be launched without complaint by Court. I L R (1960) 10 Raj 377=A I R 1960 Raj 168. In a case in which complaint was not made by Court in which forged document was produced, the conviction of the accused under Section 467, 1. P. C. was held illegal. 1959 M P L J (Notes) 34. It is not permissible for the prosecution to drop a serious charge and select one which does not require the procedure under Section 195 of the Cr. P. C. The credentials of expert who was falsely posing as an expert, were challenged. Expert filed diploma in Court as asked by the Court. It was held that his conduct did not come within Sections 465/477, 1. P. C., but within Sections 193/195, I . P .C., and the complaint in writing by Court was necessary for his prosecution. A I R 1966 S C 523 = 1966 Cr L J 459. The Inspector of Factories can send a complaint in respect of an offence under the Factories Act by registered post and must be held to have been made at least on the date on which it was received in the office of the Court of competent jurisdiction. 1960 Cr L J 1483=A I R 1960 Pat 514. Where same facts constituted offences under Sections 186 and 353, I. P. Code, but not under Section 504 and the first two offences required complaint under Section 198, Cr. P. Code, but not under Section 504, 1. P. Code, absence of complaint as required by Section 195 (1) vitiated the trial in respect of offences under Sections 186 and 353, I, P. Code. 26 Cut L T 148 = (1961) 1 Cr L J 132=A I R 1961 Cri 14. No Court other than the Courts described in Section 195 of the Code of Criminal Procedure has any jurisdiction to make a complaint under either Section 476 or 476-A of the Code of Criminal Procedure. 1959 Cr LJ 746=A I R 1959 Mys 158. The offences referred to in Section 195(l)(b) are not committed against the Judge or Magistrate, who was the Presiding Officer of the Court at the time when the alleged offence was cooitted in relation to a proceeding in that Court, but they are committed against the Court itself, and as such a successor of that Judge or Magistrate is perfectly competent to file a complaint, but the Court must be the same. 1960 Pat L R 26=1960 Cr L J 631 =- A I R 1960 Pat 206. In a case where clause (b) of sub-section (1) of Section 195, C. P. Code applies, a. prosecution under Section 211, I. P. C. cannot beinstituted without the complaint of the court. 1959 M P L J (Notes) 175. The Industrial Tribunal is not a Court within the meaning of Section 195(1) (b), Cr. P. Code 1960 Cr L J 458 = A I R 1960 Ass 55. Election tribunal after delivering judgment does not become functus officio and it can. file complaint against witness under Section 195(l)(b), Cr. P. Code. 1960CrLJ1281= 1960 All 602. An election tribunal under the Representation of the People Act has all the attributes Court, as appears from the perusal of Sections 90, 91 and 92 of that Act and, therefore, it is a Court within the meaning of that word in Section 195(l)(b) as defined by Section 195 (2) Ele L R 164= 1960 Cr L J 1281 = A I R 1960 All 602. An election tribunal constituted under Section 22 of the U. P. Municipalities Act is a. Court within the meaning of Section 195(1)(b) and (c) and cognizance of offences in connection with proceedings before it cannot be taken by the Magistrate except on complaint by the Tribunal. A I R 1963 All 395. Where an offence punishable under Section 193 and Section 196, 1. P. Code, is committed not while any proceedings are pending in a Court but while the case is still in the investigation stage, no complaint under Section 195(1) (b) is necessary by a Court. 1958 All L J 595 =l959 Cr L J 2 =A I R 1959 All 14. Section 195( 1) (b) cannot apply when the Presiding Officer of a Court itself is involved in the commission of an offence. 1959 All L J 354=1959 Cr L J 937=A I R 1959 All A complaint for an offence of Section 211, Penal Code can be made only .by the Court (or some other court to which such court is subordinate) in which the false complaint was filed by the complainant. Neither Section 195 nor Section 476, Cr. P. Code refers to a successor in office and Section 559 will be of no avail in this regard. 1960 All LJ7-= I960 Cr L J 774=A I R 1960 All 350. In proceedings of a writ petition, the High Court acts as a civil court within the meaning Section 479-A, Cr. P. Code and Court within Section 195, Cr. P. Code. 1960 Cr L J 26= A I R 1960 All 55. Where a report is made to the Tehsildar, which is found to be false and the Tehsildar does not make a complaint, the offence under Section 182 is complete even though the Tehsilder took no action. A trial without the report in writing from the Tchlildar would confer no jurisdiction on the trial Court. There is an absolute bar against the Court taking action except when a report is made as required by Section 195. A I R 1962 S C 1206. When1 an offence falls distinctly under the section a Magistrate can take cognizance of it on a private complaint. 1964 A L J 467. A Sales Tax Officer is not a Court and therefore a complaint by him under Section. 195 is not necessary for taking cognizance of an offence under Section 471, 1. P. C., committed in proceedings before him. Merely because certain initrumentalities of State have to perform certain quasi-judicial functions. They are not convicted into Courts. AIR 1963 When there is no proceeding pending in any Court at all at the time when the applicability Section 195 (1) (b) has to bedetermined, nor has there been any earlier proceeding which may have been concluded, the provisions of this sub-section would not be attracted, becausethe language used in it requires that there must be a proceeding in some Court in, or in relation to, which the offence under Section 211, I, P. C. is alleged to have been committed. In such a case, a Magistrate would be competent to take cognizance of the offence under Section 211, I. P. C., if his jurisdiction is invoked in the manner laid down in Section of the Code of Criminal Procedure. M. L. Sethi v. R. P. Kapar, A I R 1967 S C The nominee exercising power to make an award under Section 66 of the Maharashtra Co-operative Societies Act, 1960, derives his authority not from the statue but from the investment by the Registrar in his individual discretion. The power so invested is liable to besuspended and may be withdrawn. He is, therefore, not entrusted with the judicial power of the State; he is merely an arbitrator authorised within the limits of the power conferred to adjudicate upon the dispute referred to him. He is therefore not a court. Rama Rao v. Narayan, 1969(1) SCC 167. The underlying purpose of enacting Section 195(1)(b) and (c) Section 476 seems to be to control the temptation on the part of the private parties to start criminal prosection on . frivolous vexatious or unsufficient grounds inspired by a revengeful desire to harass or spite their opponents. These offences have been selected for the court’s control because of their direct impact on the judicial process. It is the judicial process or the administration of public justice which is the dirrct and immediate object of the victim of these offences. As the purity of the proceedings of the court is directly sullied by crime, the court is considered to be the only party entitled to consider the desirability of complaining against the guilty party. The private party who might ultimately suffer can persuade the Civil Court to file complaint. It, therefore, appears to be more appropriate to adopt the strict construction of confirming the prohibition contained in Section 195 ( 1) (c) only to those cases in which the offences specified therein were committed by a party to the proceeding in character as such party. The Legislature could not have intended to extend the prohibition contained in Section 195(1) (c) to the offences mentioned therein, when committed by a party to a proceeding in that court prior to his becoming such party. 1971 S C C (Cr) 548.
(1) No Court shall take cognizance- (a) of any offence punishable under Sections 172 to 188 of the Indian Penal Code, except on the complaint in writing of the public servant concerned, or of some other public servant to whom he is subordinate; (b) Prosecution for certain offences against public justice.- of any offence punishable under any of the following sections of the same Code, namely, Sections 193, 194, 195. 196, 199, 200, 205, 206, 207, 208, 209, 210, 211 and 228, when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court, except on the complaint in writing of such Court or of some other Court to which such Court is subordinate; or (c) Prosecution for certain offences relating to documents given in evidence.-of any offence described in Section 463 or punishable under Section 471, Section 475 or Section 476 of the same Code, when such offence is alleged to have been committed by a party to any proceeding in any Court in respect of a document produced or given in evidence in such Proceeding, except on the complaint inwriting of such Court, or of some other Courts to which such Court is subordinate].
(2) In clauses (b) and (c) of sub-section (1), the term “Court” [inclueds] a Civil, Revenue or Criminal Court, but does not include a Registrar or sub-Registrar under the Indian Registration Act, 1877.”
[(3) For the purposes of this lection, a Court shall be deemed to be subordinate to the Court to which appeals ordinarilly lie from the appealable decrees or sentences of such former Court, or in the case of a Civil Court from whose decrees no appeal ordinarily lies, to the principal Court having ordinary original civil jurisdiction within the local limits of whose jurisdiction such Civil Court is situate : Provided that — (a) where appeals lie to more than one Court, the Appellate Court of inferior jurisdiction shall be the Court to which such Court shall be deemed to be subordinate ; and (b) where appeals lie to a Civil and also to a Revenue Court, such Court shall be deemed to be subordinate to the Civil or Revenue Court according to the nature of the case or proceeding in connection with which the offence is alleged to have been. committed].
[(4)) The provisions of sub-section (1), with reference to the offences. named therein, apply also to [criminal conspiracies to commit such offences and to] the abetment of such offences, and attempts to commit them.
[(5) Where a complaint has been made under sub-section (1), clause (a) by a public servant, any authority to which such public servant is subordinate may order the withdrawal of the complaint and, if it does so, it shall. forward a copy of such order to the Court and, upon receipt thereof by the Court, no further proceedings shall be taken on the complaint].
SECTION 196: Prosecution for offences against the State:
No Court shall take cognizance of any offence punishable under Chapter VI [or IX-A) of the Indian Penal Code (except Section 127 [and Section 171-F, so far as it relates to the offence of personation]), or punishable under Section 108-A, or Section 153-A, or Section 204-A, [or Section 295-A], or Section 505 of the same Code, unless upon complaint made by order of, or under authority from [the State Government or some officer empowered by the State Government] in this behalf. State Amendment Before the amendment of the section by Section 138 of Act (43 of 1951), by insertion of the words ‘and Section 871-F, in so far as it relates to the offence of personation, the lection was amended to the same effect by the following State Acts : Bombay Act (29 of 1955) ; Central Provinces and Berar Act (19 of 1936) ; Punjab Act (8 of 1925) Section 161 (as amended by Punjab Act 25 of 1954, Section 3) and Punjab Act I of 1936 ; and West Bengal Act (58 of 1950). Notes Since the Representation of the People Act has omitted the inclusion of Section 171-F, Penal Code, under Section 196, Or. P. Code, sanction for prosecution under Section 196, Cr.P.Code is not necessary. I L R 1959 Cut l53 = 1959 Cr L J 759 = A I R 1959 0ri 97. Difference between offence of abetment by conspiracy and offence of criminal conspiracy laid down. The sanction under Section 195(a) for offence of abetment by conspiracy is not necessary. A I R 1962 S C 876.
SECTION 196A: Prosecution for certain classes of criminal conspiracy:
[ No Court shall take cognizance of the offence of criminal coal piracy punishable under Section 120-B of the Indian Penal Code- Section 196-A (2) provides that no Court shall take cognizance of the offence of criminal conspiracypunishable under Section 120-B in a case where the object of the conspiracy is to commit any non-cognizable offence or a cognizable offence not punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, unless the State Government or a Chief Presidency Magistrate or District Magistrate empowered in this behalf by the State Government has, by order in writing, consented to the initiation of the proceedings. It is clear that the Court cannot take cognizance without the necessary consent in the case of a charge of criminal conspiracy under Section 120-B of which the object has stated therein. The conspiracy to commit an offence is by itself distinct from the offence to do which the conspiracy is entered into. Such an offence, if actually committed would be the subject-matter of a separate charge. If that offence does not require sanction though the offence of conspiracy does and sanction is not obtained it would appear that the Court can proceed with the trial as to the substantive offence as if there was no charge of conspiracy. In Sukumar Chatterjee v. Mofizuddin Ahmed, 25 Cal W N 357 : (A I R 1961 Cal 561), where the charge was under Section 404 read with Section 120-B and no sanction was obtained it was held that the case could proceed though only under Section 404. Similarly, in Syed Yawar Bakht v. Emperor, 44 Cal W N 474: (A I R 1940 Cal 277), the accused was charged under Section 120-B read with Section 467 and also under Section 467 read with Section 109 of the Penal Code. No sanction was obtained. It was held that the consequence of not obtaining the sanction was as if the charge under Section 120-B read with Section 467 had never been framed but the accused could be convicted under the other charge viz., under Section 467 read with Section 109 of the Penal Code. The same view has also been taken by the Punjab High Court in Ram Pat v. State, (1962) 64 Pun L R 519, where it was held that where a complainant discloses more offences than one, some of which can be inquired into without sanction and others only after sanction has been obtained, there can. be no objection to the inquiry being carried on in respect of the first category of offences. Reference may be made to the decision in Nibaran Chandra v. Emperor, A I R 1929 Cal 754. The two petitioners were convicted under Section 120-B. They were also convicted under Section 384 and Section 384 read with Section 114 of the Penal Code, respectively. The fact that sanction was not obtained in respect of the complaint under Section 120-B did not vitiate the trial on the substantive charge under Section 409. No prejudice could be said to have resulted in view of the appellant’s confession that he had in fact misappropriated Rs. 2,500 and was prepared to deposit that amount. Madan Lal v. State of Punjab, AIR 1967 SC 1590 at 1594 and 1595. The view of the various High Courts, is that no sanction is necessary, under Section 196-A (2), Cr. P. C., when the object of the conspiracy is to commit the offence of cheating (420,I. P. C.), but, forgery of documents (467, I. P.C.) and similar non-cognizable offences are also committed as merely steps taken, by one or other of the accused, for the purpose of effecting the main object of the conspiracy. A trial under such circumstances, for offences under Section 120-B, read with Section 467/471 and 420 I. P. C., without obtaining sanction is neither illegal, nor void. Bhanwas Singh. v. State of Rajasthan, AIR 1968 SC 709. It is clear from the charge-sheet submitted to the Magistrate that the offence of criminal conspiracy was not even referred to. The offence “primarily and cssentially” alleged there in was one of abetment of forgery under Sections 468 and 471 and of false impersonation under Section 419 read with Section 109. It cannot be disputed that the charge-sheet also prima fade disclosed the offence of abetment. It was only at a later stage, i. e. at the time of passing the committal order that he considered that a charge under Section 120-B was the more appropriate charge and not a charge under Section 109 of the Penal Code. That being so, it must be held that the Magistrate took cognizance of the offence of abetment of an offence of forgery and impersonation so far as the appellant was concerned and not of the offence of criminal conspiracy. That being so, it is impossible to sustain the argument that the Magistrate took cognizance of the offence under Section 120-B, and therefore, consent under Section 196-A (2) was required as a condition precedent or that the committal order and the proceedings of committal which he took were vitiated for want of such consent. (1971 SCC (Cr) 628).
(1) in a case where the object of the conspiracy is to commit either an illegal act other than an offence, or a legal act by illegal means or an offence to which the provisions ofSectionl96apply, unless upon complaint made by order or under authority from [the State Government or some officer empowered by the State Government] in this behalf, or
(2) in a case where the object of the conspiracy is to commit any noncognizable offence, or a cognizable offence not punishable with death, [imprisonment for life] or rigorous imprisonment for a term of two years or upwards unless the State Government, or a Chief Presidency Magistrate or District Magistrate empowered in this behalf by the State Government has, by order in writing, consented to the initiation of the proceedings : Provided that where the criminal consipracy is one to which the provisions of sub-section [(4)] of Section 195 apply no such consent shall be necessary].
SECTION 196B: Preliminary inquiry in certain cases:
[In the case of any offence in respect of which the provisions of Section 196 or Section 196-A apply, a District Magistrate or Chief Presidency Magistrate may, notwith standing anything contained in those sections or in any other part of this Code, order a preliminary investigation by a police-officer not being below the rank of Inspector, in which case such police-officer shall have the powers referred to in Section 155, sub-section (3)].
SECTION 197: Prosecution of Judges and public servants:
Notes Where a chairman of Municipl Board submits T. A. bill and draws travelling allowance for journey undertaken in private capacity, the acts are concerned with official duties and he has committed offences under Sections 420 and 468, I. P. C. 1960 Raj L W 183= 1960 Cr L J 1375 =A I R 1960 Raj 247. Section 197 of the Cr. P. Code was not intended to apply to proceedings under the Contempt of Courts Act. 60 P L R 624=1958 Cr L J 1529-A I R 1958 Punj 471. No previous sanction of Government is necessary to take cognizance of offence against the President of Village Panchayat for misappropriating money, if prosecution is launched when he has ceased to be President. (1959) 2 Mad LJ 8-1959 Cr L J 1189 = A I R 1959 Mad 437. A public servant committing breach of trust does not normally act in his capacity as a public servant. 1959 Ker L T 347-1959 Ker LJ 107. The object of Section 197 is to provide protection to certain class of public servants against vexatious and harassing prosecution. 1949 Raj L W 609=A I R 1960 Raj 173. Sanction is not necessary where accused ceased to hold public office on date of taking of cognizance of offence. 1960 Raj L W 183=1960 Cr L J 1375=A I R 1960 Raj 247 ; 25 Cut L T 269 = 1959 Cr L J 1197 = A I R 1959 Ori 159 = 1959 MPLJ (Notes) 178; 1961 L J 859. Section 197 offers protection to such public servants as are not removable otherwise than by State Government or the Central Government. 1960 M P L J 368 =1960 Cr L J 1220=A I R 1960 Madh Pra 291. The protection of Section 197 cannot be taken away if the offence has been committed ba a Judge purporting to act in the discharge of his official duty. 1957 Raj L W 639 =1959 Cr L J 82= A I R 1959 Raj 12. To prosecute a Receiver for offence under Municipal Law permission of Court is necessary. 1960 Cr L J 902=A I R 1960 Cal 444. Where the accused persons who were in the employ of Northern Raliway, on the request of the Deputy Supdt, of Police Establishment went to witness a search commit offences of theft and misappropriation of properties sanction under Section 197 to prosecute them was not necessary as their duties ai public servants had prima fade, nothing to do with witnessing any search. 1960 All LJ 298=A I R 1960 SC 745. Section 106 of Madras Village Panchayat Act (10 of 1950), is similar in language to Section 197(1). Sanction under Section 106 is not necessary to prosecute Pesident of Panchayat Board for offence undar Section 409, I. P. C. A I R 1967 S C 776=1967 Cr L J Where a public servant commits the offence of cheating or abets another so to cheat, the offence committed by him is not one while he is acting or purporting to act in the discharge of his official duty, as such offence has no necessary connection between it and the performance of the dutiet of a public servant. 1960 Cr L J 410 =A I R 1960 S C 266. The fact that a Sarpanch of Panchayat can be removed by the Panchayat Officer, does not derogate from him the protection given to a Judge by Section 197, Cr. P. Code, and therefore sanction for his prosecution is necessary. 1957 Raj L W 639= 1959 Cr L J 82= A I R 1959 Raj 12. Where the wall was demolished in spite of an interim injunction served on the Chairman of the board, held that the impugned act of the Chairman and the executive officer, assuming that they were individually responsible for it was an act which was clearly relatable to the dicharge of theie official duties. 1959 Raj L W 609=A I R 1960 Raj 173. Where the Assistant Commissioner of Police refused to grant bail in respect of offence under Section 420, I. P. C. unless accused did something which he was not bound to do, it was held that sanction was necessary for prosecution of Assistant Commissioner of Police under Section 348, I. P. C. A I R 1965 S C 588=1965 (1) Cr L J 499. A Chairman under the Rajasthan Town Municipalities Act, where he is sought to be prosecuted for any offence alleged to be committed by him while acting or purporting to act in the discharge of his official duties cannot be prosecuted without the sanction of the State Government. 1959 Raj L W 609=A I R 1960 Raj 173. The police submitted charge-sheet against the accused on 4th April, 1953. The order sheet showed that on 6th April, 1953 the Magistrate ordered that prosecution witnesses even to be summoned on a future date and the accused were to be present in court from the jail on that date. It was held that the .Magistrate took cognizance of the offence on the 6th April, 1953. A I R 1966 S.C 220==1966 Cr L J 179. The sanction has to be taken before cognizance of an offence has been taken. A I R 1966 S C 220=1966 Cr L J 179. When a Magistrate ceases to be such Magsitrate, no previous sanction under Section 197 is necessary for a court to take cognizance of an offence committed by that Magistrate while acting or purporting to act in the discharge of his official duty. A I R 1961 S C t395. Where the act of criminal misappropriation alleged was not committed by the accused while he was acting or purporting to act in the discharge of his official duties and the offence has no direct connection with the duties of the accused as a public servant and his official status only furnished him with an occasion of committing the offence, sanction of the State Government was not necessary for his prosecution under Section 409, 1. P. C. But sanction is necessary for the prosecution of the accused on charge under Sections 477-A/109, because It was committed within the scope of official duties though in dereliction of them. (1965) 2 S C J 478 = (1965) 2 S C W R 850=A I R 1966 S C 220=1966 Cr L J 79. Where the services of a public servant enjoyed by the State is lent to the Government of India the sanctiong authority would be the Governor-General and not the Government A I R 1962 S C 1573. A submitted false claims to the Government of Burma and obtaining payment of money in respect of works not carried out by him for Government. He was tried for cheating along with the public servants for abetment of offence by falsely certifying correctness of the claims It was held that the trial was not vitiated for want of sanction, as neither A waspublic servant nor act of public servant in abeting A was done in discharge of his official duty. (A I R 1960 S C 266 Ret. on and AIR 1965 S C 706 disting.). A I R 1967 S C 752=1967 Cr L J 752. The object and purpose underlying this section is to afford protection to public servants against frivolous, vexatious or false prosecution for offences alleged to have been committed by them while acting or purporting to act in the discharge of their official duty. The large interest of efficiency of State administration demands that public servants should be free to perform their official duty fearlessly and underetred by apprehension of their possible prosecution at the instance of private parties to whom annoyance or injury may have been caused by their legitimate acts done in the discharge of their official duty. Broadly speaking, with us no man, whatever his rank or condition is above the law and every official from the highest down to the lowest is under the same responsibility for every act done without legal justification as any other citizen. In construing Section 197 Cr. P. C. therefore, a line has to be drawn between the narrow inner circle of strict official duties and acts outside the scope of official duties. 1970 Digest, p. 105. The Railway Board is a separate body which derives its powers and authority, however, wide they may be only because of delegation of powers from the Central Government in respect of the administration of the Railways. The result, therefore, is that the appellant was appointed in an officiating position as Class I Officer by the Railway Board and, there, fore, he was removable by the Railway Board and not by the Central Government. It cn not be said in the circumstances that the appellant was one of those public officers who could be removed only by or with the sanction of the Central Government within the meaning of Section 197, Criminal Procedure Code. K. N. Shukla v. Navnit Lal, A I R 1967 S C 1331 at 1334.
[(1) When any person who is ajudge within the meaning of Section 19 of the Indian Penal Code, or when any Magistrate, or when any public servant who is not removable from his office save by or with the sanction of a State Government or [the Central Government] is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the [previous sanction- [(a) in the case of a person employed in connection with the affairs of the Union, of the Central Government; and (b) in the case of a person employed in connection with the affairs of a Slate, of the State Government.]]]
(2) Power of Central Government or State Government as to prosecution.- [The [Central Government or the State Government]as the case may be, * * *] may determine the person by whom, the manner in which, the offence or offences for which, the prosecution of such Judge, [Magistrate] or public servant is to be conducted, and may specify the Court before which the trial is to be held. ******
SECTION 197A: Prosecution of Rulers of former Indian States:
[ State Amendments GUJARAT, MAHARASHTRA AND RAJASTHAN, Abu Area After Section 197-A a new Section 197-AA is mscinserted as follows- “197-AA. Prosecution of Commissinner appointed by Civil Court.-When any person, who is a Commissioner appointed by a Court under the provisions of the Code of Civil Procedure, 1908, is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his functions as Commissioner, no Court shall take cognizance of such offence except with the previous sanction of the Court, which appointed such person as Commissioner.” HIMACHAL PRADESH Section 197-B shall be inserted after Section 197-A : “197-B. Prosecution of Commissioner appointed by Court.-When any person, who is a Commissioner appointed by a court under the provisions of the Code of Civil Procedure, 1908 is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his functions as Commissioner, no court shall take cognizance of such offence except with the previous sanction of the court which appointed him as the Commissioner.” (H. P. Act 11 of 1970). Note.-Punjab Act 28 of 1919 is repealed in territories transferred to Himachal Pradesh from Punjab. PUNJAB, HARYANA AND CHANDIGARH After Section 197, the following section shall be inserted, namely- “197-A. Prosecution oJCommissioner appointed by Court.-When any person, who is a Commissioner appointed by a Court under the provisions of the Code of Civil Procedure, 1908, is accused of any offence except with the previous sanction of the Court which appointed him as Commissioner.” UTTAR PRADESH After Section 197, a new Section 197-A has been added. It is the same as that of Punjab above. NOTES The Punjab and U, P. Amendments inserting Section 197-A which relates to prosecution Commissioner were made prior to the insertion by the Code of Criminal Procedure (Amendment) Act, 1951 of Section 197-A, which relates to prosecution of Rulers of former Indian States. But there has been no consequential amendment by the State in the number of the Section 197-A into Section 197-AA.
(1) In this section- (a) “former Indian State” means any such Indian State as the Central Government may, by notification in the Official Gazette, specify for the purposes of this section ; (b) “Ruler”, in relation to former Indian State, means the person who for the time being is recognised by the President as the Ruler of that State for the purposes of the Constitution.
(2) No Court shall take cognizance of any offence alleged to have been committed by the Ruler of a former Indian State excpt with the previous sanction of the Central Government.
(3) The provisions of sub-section (2) of Section 197 shall apply in relation to the prosecution and trial of the Ruler of a former Indian State as they apply in relation to the prosecution and trial of a Judge.
SECTION 198: Prosecution for breach of contract, defamation and offences against marriage:
No Court shail take cognizance of an offences falling under Chapter XIX or Chapter XXI of the Indian Penal Code or under Sections 493 to 496 (both inclusive) of the same Code, except upon a complaint made by some person aggrieved by such offence : Notes In a murder case it is primarily for the prosecution to decide which witness he should examine in order to unfold his story. The prosecutor must act fairly and honestly. If at the trial it is shown that persons who had witnessed the incident have been deliberately kept back, the court may draw an inference against the prosecution. In such a case if the ends of justice require the court may even examine such witnesses by exercising its power under Section 540. AIR 1965 SC 328 = 1965 (1) Cr L J 350. Bar of Section 198 is removed when aggrieved person files complaint for offence under Sections 493 and 496, I. P. C, and his presence throughout trial is not necessary. Death of aggrieved person pending committal enquiry does not abate the enquiry. AIR 1967 SC 983 : 1967 Cr L J 943.
[ Provided that, where the person so aggrieved is a woman who, according to the customs and manners of the country, ought not to be compelled to appear in public, or where such person is under the age of eighteen year or is an idiot or lunatic, or is from sickness or infirmity unable to make a complaint, some other person may, with the leave of the Court, make a complaint on his or her behalf] :
[Provided further that where the person aggrieved by an offence under Section 494 of the said Code- (a) is the wife, any relative of the wife may make a complaint on her behalf; (b) is the husband, and he is serving in any of the Armed Forces of the Union under conditions which are certified by his Gommanding Officer as precluding him from obtaining leave of absence to enable him to make a complaint in person, some other person authorised by the husband in accordance with the provisions of sub-section (1) of Section 199-B may, with the leave of the court, make a complaint on his behalf,
Explanation.-For the purpose of clause (a) of the second proviso, ‘*relative” means any lineal descendant or ascendant of the wife, her brother or sister, or her father’s or mother’s brother or sister],
SECTION 198A: Proseuction for offence of marital misbehaviour:
[ No Court shall take cognizance of an offence under Section 376 of the Indian Penal Code, where such offence consists of sexual intercourse by a man with his own wife, the wife being under fifteen years of age-
(i) if more than one year has elapsed from the date of the commission of the offence,
(ii) in the case of any marriage which has taken place before the Indian Penal Code and the Code of Criminal Procedure (Amendment) Act, 1949, came into force, if the wife was not under thirteen years of age on the date of the marriage].
SECTION 198B: Prosecution for defamation-against public servants in respect of their conduct in the discharge of public functions:
State Amendments ANDHRA PRADESH (Added Territories) The amendment made in Section 198-B by Tamil Nadu Act XXIV of 1955 shall stand repealed. TAMIL NADU In Section 198-B, omit sub-section (12). (Madras Act 34 of 1955, Section 6). Notes If the prosecutor honestly and bona fide believes that some of his witnesses have been won over, it would be unreasonable to insist that he must tender such witnesses before the Court. In such a case it is always open to the defence to examine such witnesses as their witnesses and the court can also call such witnesses in the interest of justice under Section 540, Cr. P. C. Where the defence did not examine the witnesses and the court refused to exercise its powers under Section 540, Cr. P. C. this is one aspect of the matter which the Supreme Court have to take into account in considering whether the accused was prejudiced A I R 1965 S C 202 = 1965 (1) Cr L J 226. Provisions of Section 198 are mandatory. Where the Presidency Magistrate considered the charge framed by him under Section 500, I. P. C. as wrong, he, instead of proceeding to record an order of acquittal, should have brought the matter to the notice of the High Courd so that the error might be corrected. 1960 Cr L J 158 = 190 M L J (Cr) 32 = A I R 1960 S C 82. Reading the two Sections 19-B and 198, together, when a complaint in writing is made by the Public Prosecutor under Section 198-B, it is not necessary to have the complaint also signed by the defamed public servant. 1950 Cr L J 145=A I R 1960 Him Pra 19. Section 198 does not confer any power of cognizance on the court or right of complaint on the person aggrieved It simply prohibits cognizance except upon complaint made by the person aggrieved. 1959 Cr L J 461 =A I R 1959 Ker 100. Section 198 is not hit by Article 14 of the Constitution of India. 1959 CrLJ 464= A I R 1959 Ker 100. The purpose of Section 198-B(13), Cr. P. Code is not to import into Section 198-B the provisiions of Section 198 but only to keep alive the provisions of Section 198 nt act. Section 198-B (13) only prcserves to the public servant defamed his original right under Section 198 and does not require him to join in the complaint lodged by the Public Prosecutor under Section 198-B. (1961) Cr L J 1=A I R 1961 All 24. The sanction under Section 198-B(3) has reference to the making of complaint and is distinct and different from the authorisation of a particular individual to act ai Public Prosecutor. 1958 Mad L J (Cr) 903=1939 Cr L J 347=A I R 1959 Mys 65. This section does not offend Article 14 of the Constitution. 1959 Cr L J 464 = A I R Scope of inquiry inregard to the conduct of a public servant under Section 198-B is restricted to the libel in respect of his public function. 1958 Ker L T 1158= 1959 Cr LJ 469 A I R 1959 Ker 100. A violation of sub-section (3) of Section 198-B vitiates a trial. 1958 Ker L T 1158= 1959 Cr L J 464= A I R 1959 K.er 100. Where the Governor considers that the intimation of a criminal proceeding is necessary he may then authorise the Secretary concerned who will further examine the question as to whether sanction should be given to the Public Prosecutor for filing a proper complaint. I L R 1960 Cut 151=1960 Cr L J 966 = A I R 1960 Ori 116. For propriety of the order allowing withdrawal of complaint, see Section 494, infra. 1960 Cr L J 1210 =A I R 1960 Ker 291. No particular form of authorisation of the Home Secretary by the Governor is necessary and the prosecution may prove by evidence that there was such an authorisation prior to the giving of sanction by the Home Secretary to the Public Prosecutor. I L R 1960 Cut 151 =1960 Cr L J 966==A I R 1960 Ori 1 16. Sub-section (13) of Section 198-B clearly indicates that if a complainant has the right to file a complaint for a defamation, whether that defamation is in respect of his official duties or is in respect of his non-official activities under Section 198, then that individual right of the complainant remains entirely unaffected by anything that is contained in Section 198-B. 1959All L J 564-1960 Or LJ 184=A I R1960 All 71. Whether acts attributed to authorities were performed in their official capacity or otherwise is a question of fact to be decided on evidence. 1960 Cr L J 1541 =A I R 1960 It is not necessary for the Officer defamed to sign the complaint along with the Public Prosecutor filed under Section 198-B. 1960 Cr L J 1541 =A I R 1960 All 763. Section 198-B does not rest on grounds such as caste, religion or sex and therefore is not hit by Article 14 of the Constitution. 1959 All Cr R 395=1959 Cr L J 6-A I R 1959 All 21. The publication of an article alleged to be defamatory of a Minister, is not only defamation of (him in his personal capacity but also a defamation of him as) a Minister, and as such it is the State which suffers the injury along with the individual and the responsibility to take section lies with the State. 1960 Cr L J 1541 ==A I R 1960 All 763. ‘ Public servant’ is a person employed in connection with affairs of the State and such public servant is covered by Section 198-B. (1951) 1 Cr L J 1=A I R 1961 All 24. Where in a sanction order it was expressly stated that the Home Secretary had been authorised by the Governor in this behalf as required by Sectred by Saction 198-B(3)(a), it was held that proper authorisation had been made as required by law. I L R 1960 Cut 151=1960 Cr L J 966=A I R 1960 Ori 1 1 6. Ordinarily the occassion for authorisation of Home Secretary to accord sanction to PublicProsecutor for filing a proper complaint before the Court of Session would arise only if the defamatory matter is published and the aggrieved party, i. e. the Governor considers prosecution as necessary. I L R 1960 Cut 151 ==1960 Cr L J 966 =A I R 1960 Ori 115. Section 198-B(3) (b) contemplates only the sanction of the Secretary authorised in this behalf by the Government. 1958 Ker L T 1158 = 1959 Cr L J 464=A I R 1959 Ktr 100. The Lieutenant-Governor of Himachal Pradesh was competent, even after 1-11-1916 when Himachal Pradesh became a Union Territory, to accord sanction to the prosecution of the petitioner under Sections 500, 501 and 502, 1. P. C. 1960 Cr L J 1450=A I R 1960 Him Pra 19. Under sub=section(13) of Section 198-B, acomplaint by the person aggrieved is not dispensed with even with regard to cases falling under that section and a prosecution must fail for want of such a complaint. 1959 All Cr R 158=1959 Cr L J 464=A I R 1959 Ker 100. The words ‘in addition to and derogation of in sub-section (13) of Section 198-B, Cr. P. Code only mean that incase the special procedure as prescribed in Section 198-B is not adopted it is still open to an aggrieved person (Governor) to file a complaint under Seotion 198, Cr. P. Code before a competent Magistrate. I L R 1960 Cut 151 = 1960 Cr LJ 966= A I R 1960 Ori 1 16. Where a public servant is defamed a complaint can be made by a Public Prosecutor and the public servant concerned need not be a party to it. A I R 1961 All 24. The phrase “conduct in the discharge of his public functions” covers a larger field than what has been held by the Supreme Court in examining Section 197(1). if there is any defamatory statement concerning the behaviour of a public servant which can reasonably be associated with the discharge or non-discharge of his official duty, even if not strictly necessary for that discharge or relating to his conduct which bears such rational though not pretended or fanciful relation to the duty that it appears to have been displayed in the course of the performance or non-performance of the duty, the behaviour or conduct having reference inter alia to its moral quality it would immediately attract Section 198-B. A I R 1961 All 24. Where the person defamed was a Gazetted District Medical Officer and a member of the U. P. Public Health Service and the subject of public health falls under Items 6 of the said list in Schedule 7 of the Constitution, held that such a public servant comes within the purview of Section 198-B. A I R 1961 All 24. Where an article defamatory of a person such as a Minister is published, it is the State which suffers the injory along with the individual and the responsibility for initiation of prosecution for defamation lies with the State irrespective of the fact whether the particular person remains a Minister or not. A I R 1960 All 763. Section 198-B does not require that a complaint should be signed by the Public Prosecutor. What is required is that the complaint should be in writing and should be made to the Court. The order sanctioning prosecution under clause (3) (b) need not mention details of the facts constituting the charge. The period of six months provided in clause (4) has to be counted from the date of publication of the offending article in the newspaper. 1961 A L J 967. Where a newspaper published a defamatory article against the Governor of a province, the decision to launch a prosecution should first be taken by the Governor himself and then the necessary sanction of the Secretary for the prosecution should be obtained. The proof of the decision by the Governor can be by either adducing oral evidence of the Governor himself or from some writing emanating from him showing that he had authorised the lodging of such a complaint. AIR 1963 SC 1198. The initiative to lodge a complaint must be taken by the Government and once having done so it must authorise a Secretary to sanction the act. Before this is done the Secretaty gets no power to accord his sanction. A general authority to lodge a complaint would not answer the purpose, the authority must be for a specific complaint. 1968 A LJ (S C) 1057.
(1) Notwithstanding anything contained in this Code, when any offence falling under Chapter XXI of the Indian Penal Code [* * *] is alleged to have been committed against the President, or the Vice-President, or the Governor or Rajpramukh of a State, or a Minister, or any other public servat employed in connection with the affairs of the Union or of a State, in respect of his conduct in the discharge of his public functions, a Court of Session may take cognizance of such offence, without the accused being committed to it for trial, upon a complaint in writing made by the Public Prosecutor.
(2) Every such complaint shall set forth the facts which constitute the offence alleged, the nature of such offence and such other particulars as are reasonably sufficient to give notice to the accused of the offence alleged to have been committed by him.
(3) No complaint under sub-section (1) shall be made by the Public Prosecutor except with the previous sanction- (a) in the case of the President or the Vice-President or the Governor [* * *] of a State, of any Secretary to the Government authorised by him in this behalf; (b) in the case of a Minister of the Central Government or of a State Government, of the Secretary to the Council of Ministers, if any, or of any Secretary to the Government authorised in this behalf by the Government concerned; (c) in the case of any other public servant employed in connection with the affairs of the Union or of a State, of the Government Concerned
(4) No Court of Session shall take cognizance of an offence under subsection (1), unless the complaint is made within six months from the date on which the offence is alleged to have been committed.
(5) When the Court of Session takes cognizance of an offence under sub-section (1), then, notwithstanding anything contained in this Code, the Court of Session shall try the case without a jury and in trying the case, shall follow the procedure prescribed for the trial by Magistrates of warrant case instituted otherwise than on a police report and the person against whom the offence is alleged to have been committed shall, unless the Court of Session, for reasons to be recorded, otherwise directs, be examined as a witness for the prosecution.
[(5-A) Every trial under this section shall be held in camera if cither party thereto so desires or if the Court of Session so thinks fit to do].
(6) If in any case instituted under this section, the Court of Session by which the case is heard discharges or acquits all or any of the accused, and is of opinion that the accusation against them or any of them was false and either frivolous or vexatious, the Court of Session may, by its order of discharge or acquittal, direct the person against whom the offence was alleged to have been committed (other than the President, Vice-President, or the Governor or Rajpramukh of a State) to show couse why he should not pay compensation to such accused or to each or any of such accused, when there are more than one.
(7) The Court of Session shall record and consider any cause which may be shown by the person so directed and if it is satisfied that the accusation was false and either frivolous or vexatious, it may, for reasons to be recorded, direct that compensation to such amount, not exceeding one thousand rupees, as it may determine, be paid by such person to the accused or to each or any of them.
(8) All compensation awarded under sub-section (7) may be recovered as if it were a fine.
(9) No person who has been directed to pay compensation under subsection (7) shall, by reason of such order, be exempted from any civil or criminal liability in respect of the complaint made under this section: Provided that any amount paid to an accused person under this section shall be taken into account in awarding compensation to such person in any subsequent civil suit relating to the same matter.
(10) The person who has been ordered under subjection (7) to pay compensation may appeal from the order, in so far as the order relates to the payment of the compensation, as if he had been convicted in a trial held by the Court of Session.
(11) When an order for payment of compensation to an accused person is made in a case which is subject to appeal under sub-section (10), the compensation shall not be paid to him before the period allowed for the presentation of the appeal has elapsed, or, if an appeal is presented, before the appeal has been decided,
(12) For the purposes of this section, the expression “Court of Session” includes the High Courts at Calcutta and Madras in the exercise of their original criminal jurisdiction,
(13) The provisions of this section shall be in addition to, and not in derogation of, those of Section 193.
[(14) Where a case is instituted under this section for the trial of an offence, nothing in sub-section (13) shall be construed as requiring a complaint to be made also by the person aggrieved by such offence].
SECTION 199: Prosecution for adultery or enticing a married woman:
No Court shall take cognizance of an offence under Section 497 or Section 498 of the Indian Penal Code, except upon a complaint made by the husband of the woman, or, in his absence, [made with the leave of the Court] by some person who had care of such woman on his behalf at the time when such offence was committed : [Provided that, where such husband is under the age of eighteen years, or is an idiot or lunatic, or is from sickness or infirmity unable to make a complaint, some other person may, with the leave of the Court, make a complaint on his behalf:] [Provided further that where such husband is serving in any of [the Armed Forces of the Union] under conditions which arc certified by his Commanding Officer as precluding him from obtaining leave of absence to enable him to make a complaint in person, and where for any reason no complaint has been made by a person having care of the woman as aforesaid, some other person authorised by the husband in accordance with the provisions of sub-section (1) of Section 199-B may, with the leave of the Court, make a complaint on his behalf]
SECTION 199A: Objection by lawful guardian to complaint by person other than person aggrieved:
[When in any case falling under Section 198 or Section 199, the person on whose behalf the complaint is sought to be made is under the age of eighteen years or is a lunatic, and the person appling for leave has not been appointed or declared by competent authority to be the guardian of the person of the said minor or lunatic, and the Court is satisfied that there is a guardian so appointed or declared, notice shall be given to such guardian, and the Court shall, before granting the application, give him a reasonable opportunity of objecting to the granting thereof.]
SECTION 199B: Form of authorization under second proviso to Section 198 or Section 199:
(1) The authorisation of a husband given to another person to make a complaint on his behalf under the second proviso to Section 198 or the second proviso to Section 199 shall be in writing, shall be signed or otherwise attested by the husband, shall contain a statement to the effect that he has been informed of the allegations upon which the complaint is to be founded, shall be countersigned by the officer referred to in the said provisos, and shall be accompanied by a certificate signed by that officer to the effect that leave of absence for the purpose of making a complaint in per cannot for the time being be granted to the husband.
(2) Any document purporting to be such an authorisation and complying with the provisions of sub-section (1), and any document purporting to be a cerertificate required by that sub-section shall, unless the contrary is proved, by presumed to be genuine, and shall be received in evidence].
CHAPTER 16: OF COMPLAINTS TO MAGISTRATES:
SECTION 200: Examination of complainant:
* * * A Magistrate taking cognizance of an offence on complaint shall at once [examine the complainant and the witnesses present, if any, upon oath and the substance of the examination shall be educed to writing and shall be signed by the complainant and the witnesses], and also by the Magistrate: Provided as follows : State Amendment WEST BENGAL For the words ‘a Magistrate’ substitute the words ‘any judicial Magistrate’. Notes On a complaint being made by a court, it is not necessary to examine the complainant and neither Section 200 nor Section 202 requires a preliminary enquiry before the Magistrare can assume jurisdiction. 1959 Cr LJ 1124-1959 All Cr R 298=AIR 1959 SC 843. Procedure prescribed by Section 200 without the proviso, should be adopted for taking cognizance of offence on complaint by examining complainant. 1960 Ker LJ 616= 1960 Cr LJ 1466.=AIR 1960 Ker 850. It is only when a Magistrate applies his mind for the purposes of proceeding under Section 200 and subsequent sections of Chapter XVI of the Cade that it can be positively stated that he had applied his mind and therefore had taken cognizance. 1959,Cr, L J 1368 AIR 1959 SC 1118. The witnesses mentioned in Section 203 refer to the witnesses mentioned in Section 200, Cr. P. Code. If that is not the interpretation, then the Magistrate should examine all the witnesses of the complainant before he makes up his mind to dismiss a private complaint and this would place the Magistrate in an intolerable position. ILR 1958 Mys 351-1959 Cr. LJ 620 = AIR 1959 Mys ll9. When a Magistrate directs an inquiry under Section 202, Cr, P. Code for ascertainining the truth or falsehood of a complaint and received a report from the enquiring officer supporting a plea of selt-defence made by the person complained against, it is open to him to hold that the plea is correct on the basil of the report and the statements recorded by the eaqiringofficer. 62 Bom L R 9l5-1960 Cr L J l499-AlR l960 SC 1113. Two complaints relating to the same offence should be amalgamated and one trial held, but one complainant cannot cross-examine the witnesses of the other. 1964 ALJ 335: 1964 AWR 213.
(a) when the complaint is made in writing, nothing herein contained shall be deemed to require a Magistrate to examine the complainant before transferring the case nder Section 192 ;
[(aa) when the complaint is made in writing nothing herein contained shall be deemed to require the examination of a complainant in any case in which the complaint has been made by a Court or by a public servant acting or purporting to act in the discharge of his official duties ; ]
(b) where the Magistrate is a Presidency Magistrate, such examination may be on oath or not as the Magistrate in each case thinks fit, and [where the complaint is made in writing] need not be reduced to writing; but the Magistrate may, if he thinks fit, before the matter of the complaint is brought before him, require it to be reduced to writing;
(c) when the case has been transferred under Section 192 and the Magistrate so transferring it has already examined the complainant, the Magistrate to whom it is so transferred shall not be bound to re-examine the complainant.
SECTION 201: Procedure by Magistrate not competent to take cognizance of the case:
Note Section 346(1), Cr. P. Code has no reference to casts of absence of territorial jurisdiction. In such cases what the Magistrate concerned should do is to act under Section 201, Cr. P. code. 1959 Mad LJ (Cr) 213==1959 Cr LJ 194=AIR 1959 Ker 53 (FB).
(1) If the complaint has been made in writing to a Magistrate who is not competent to take cognizance of the case, he shall neturn the complaint for presentation to the proper Court with an endorsement to that effect.
(2) If the complaint has not been made in writing, such Magistrate shall direct the complainant to the proper Court.
SECTION 202: Postponement for issue of process:
Where an investigation has been directed under Section 202, the Magistrate should wait for the report before issuing procell against the accused. 1959 BLJR 471 = 1959 Cr LJ 1353=AIR 1959 Pat 504. On receipt of a complaint by a Magistrate on transfer, he should see that the same is properly registered and put up, with an order sheet form and then he should pass an order referring the case to police under Section 202. 1959 Cr LJ 742=AIR 1959 Mani 30. The Magistrate conducting inquiry absolutely erred in usurping the function of the trying Magistrate and dismissing the complaint by writing out a judgment of acquittal. The evidence on record, if unrebutted in cross-examination, made out a ptima facic case for putting the opposite parties on trial, the order dismissing the complaint should be set aside. 1960 BLJR 614=1961 (1) Cr LJ 417=AIR 1961 Pat 120. Where a complaint is made against a Sub-Inspector alleging bribery, corruption, coercion and misconduct the District Magistrate can order a magisterial enquiry under Para 484 of U. P. Police Regulations. The Sub-divisional Magistrate would be holding such enquity under Section 202(1) of the Code and he will be doing so as a “Court”, in accordance with the provisions of the Code. A revision is, therefore, permissible against the order of the Sub-divisional Magistrate. Non-compliance by the Bistrict Magistrate with the provisions of the Proviso under Section 202(1) before ordering enquiry would render the order for enquiry and further proceedings by the Sub-divisional Magistrate illegal and liable to be set aside. AIR 1962 All 456. The scope of enquiry under Section 202 is limited to finding out the truth or otherwise of a complaint in order to determine whether process should issue or not and the second section lays down what matters are to be considered. If an application under Section 202 is dismissed a second complaint on the same facts is not barred. AIR 1962 SC 876. For power of Magistrate to ask for investigation before and after taking cognizance of the case See Notes in Section 156. 1970(3) SCC 10=1970 SCC (Cri) 360. The object of the provisions of Section 202, Cr. P. C. is to enable a Magistrate to form anopinion as to whether the processes should be issued or not. At that stage what the Magistrate has to see is whether there is evidence is support of the allegations made in the complaint and not whether the evidence is sufficient to warrant conviction. The function of the Magistrate holding a preliminary enquiry is only to be satisfied that a prima fade case is made out against the accused on the materials placed before him by the complainant. Where a prima facie case has been made out even though much can be said on both sides, the committing Magistrate is bound to convict the accused for trial and the accused does not come into the picture at all till the process is issued. The dismissal of a complaint at that stage under Section 203, Cr. V. C. on the ground that the case is covered by the Exceptions to Section 499, IPC as well as all other defences that may be available to the appellants will have to be gone into during the trial of the complaint.
[(1) Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been transferred to him under Section 192, may, if he thinks fit, for reasons to be recorded in writing, postpone the issue of process for compelling the attendance of the person complained against, and either inquire into the case himself or, if he is a Magistrate other than a Magistrate of the third class, direct an inquiry or investigation to be made by any Magistrate subordinate to him, or by a police officer, or by such other person as he thinks fit, for the purpose of ascertaining the truth or falsehood of the [Provided that, save where the complaint has been made by a Court, no such direction shall be made unless the complainant has been examined on oath under the provisions Section 200.]]
[(2) If any inquiry or investigation under this section is made by a person not being a Magistrate or a police officer, such person shall exercise all the powers conferred by this Code on an officer-in-charge of a police station, except that he shall not have power to arrest without warrant.]
[(2-A) Any Magistrate inquiring into a case under this section may, if he thinks fit, take evidence of witnesses on oath.]
(3) This lection applies also to the police in the towns of Calcutta and Bombay.
SECTION 203: Dismissal of complaint:
The Magistrate before whom a complaint is made or to whom it has been transferred, may dismiss the complaint if, [after considering the statement on oath (if any) of the complainant [and the witnesses] and the result of [the investigation] or inquiry [(if any)] under Section 202]) there is in his judgment no sufficient ground for proceeding. In such cases he shall briefly record his reasons for so doing, Notes Fact that a police challan was pending against the accused, could not be held to be sufficient ground for not proceeding with earlier complaint in view of provisions of Section 190(1), Cr. P. Code. 1959 Nag LJ 515 l960== Cr LJ 326= AIR 1960 Bom 116. When the case has ended in acquittal, there is no question of dlimissing the complaint. 1959 Mad LJ (Cr) 658 : (1559) 2 Jab LJ 264. A dismissal of the complaint under Section 203 in the case of a charge under Section 302, Indian Penal Code was considered to be justified in the circumstances of the case where the Magistrate found no sufficient ground to proceed with the enquiry, (1958) 2 Andh WR 695 : 1958 Mad LJ (Cr) 1000 : 1958 Andh LT 755. Where a complaint under Sections 448 and 454, 1. P. C. disclosed a civil dispute and there was considerable delay in filing the complaint, the Magistrate is justified to dismiss the same under Section 203. 1958 MLJ (Cr) 788 : 1959 CrLJ 620 : AIR 1959 Mys 129. Materials on which a Magistrate may order committal are his satisfaction that the allegations in the complaint are intrinsically true and not that the accused has a defence. The satisfaction has to be on the evidence taken by him or another Magistrate, and not on the investigation by the police or the evidence adduced before him during the inquiry arising out of another complaint. If the complaint has ben dismissed on such extraneous matter, the proceeding should be vitiated. It is absolutely necessary that the Magistrate while dismissing the complaint give reasons. AIR 1963 SC 1430. See Notes under Section 202. 1971 SCC (Cr) 647.
CHAPTER 17: OF THE COMMENCEMENT OF PROCEEDINGS BEFORE MAGISTRATES:
SECTION 204: Issue of process:
State Amendment In Section 204, in sub-section (1), for the words “a Magistrate taking cognizance of an offence”, substitute “a. Judicial Magistrate taking cognizance of an offence, or a Judicial Magistrate to whom a case has been transferred under sub-section (2) of Section 191.” Notes Where no allegations were made against the Resident Engineers in a complaint jointly against Electricity Supply Companies and such Engineers, it was held that issue of process against individuals was inappropriate. 1960 Cr LJ 300 : AIR 1960 All 176. Mere issue of summons amounts to taking cognizance of offence. 1960 Cr LJ 1198 : 1960 Cal 570. It is improper for the Magistrate to issue process against the accused until he receives a report from the enquiring officer or until any other adequate material is placed before him for the purpose of removing his doubt. 1958 fat LR 432 : 1959 BLJR 61. In a prosecution case under M. B. Excise Act, the accused is entitled to a copy of challan and list of witnesses. 1959 MPLJ (Notes) 28. Section 204 (1-A) does not lay down that a separate list of witnesses should befiled. complainant commits no illegality if he incorporates the names of witnesses in the petition of complaint itself instead of giving a separate list. He can add to the witnesses originally given and also can give up any witness mentioned in the original list. 26 Cut LT 25 : 1960 Cr LJ 1353 : AIR 1960 On 178. A magistrate can examine not only the witnesses cited by the complainant, but may also examine every witness produced who is acquainted with the facts of the case. 1964 ALJ 335: 1964 AWR 213.
(1) If in the opinion of a Magistrate taking cognizance of offence there is sufficient ground for proceeding, and the case appears to be one in which, according to the fourth column of the second schedule, a summons should issue in the first instance, he shall issue his summons for the attendance of the accused. If the case appears to be one in which, according to that column, a warrant should issue in the first instance, he may issue a warrant, or, if he thinks fit, a summons, for causing the accused to be brought or to appear at a certain time before such Magistrate or (if he has not jurisdiction himself) some other Magistrate having jurisdiction.
[(1-A) No summons or warrant shall be issued against the accused under sub-section (1) until a list of the prosecution witnesses has been filed.
(1-B) In a proceeding instituted upon a complaint made in writing, every summons or warrant issued under sub-section (1) shall be accompanied by a copy of such complaint.]
(2) Nothing in this section shall be deemed to affect the provisions of Section 90.
(3) When by any law for the time being in force any process-fees or other fees are payable, no process shall be issued until the fees are paid, and, if such fees are not paid within a reasonable time, the Magistrate may dismiss the complaint.
SECTION 205: Magistrate may dispense with personal attendance of accused:
Notes The language of Section 205(1) in general and the exemption from personal attendance contemplated in the section is for the whole duration of the trial, including the day on which the accused is to be questioned under Section 342. 1960 MLJ (Cr) 703. An accused person who has been exenmpted from personal appearance can answer question under Section 342, Cr. P. Code through her pleader. 1963 MPLJ (Notes) 81. The court is not compelled by Section 342, Cr. P. Code to examine the pleader of the accused whose personal attendance has been exempted under Section 205. 1959 Cr LJ 1134 : AIR 1959 All 625. The accused must appear in person after the close of the prosecution evidence for the purpose of answering the questions which the court is bound to put to him at that stage, although his personal attendance has been dispensed with under Section 205. 1959 Cr LJ 651: AIR 1959 Punj 228. Ordinarily, in a case when the accused seeks exemption under Section 205, Cr. P. Code and as a result of his personal attendance is exempted, he authorised his advocate to plead on his behalf and answer questions under Section 342 and agrees that he would be bound by the statements of his advocate, hence the Magistrare may question the Advocate under Section 342 instead of enforcing personal attendance of the accused. 1960 Mad LJ (Cr) 70 3: 1960 Cr LJ 1597: AIR 1960 Ker 383.
(1) Whenever a Magistrate issues a summons, he may, if he sees reason so to do, dispense with the personal attendance of the accused and permit him to appear by his pleader.
(2) But the Magistrate inquiring into or trying the case may, in his discretion, at any stage of the proceedings, direct the personal attendance of the accused, and, if necessary, enforce such attendance in manner here -inbefore provided.
CHAPTER 18: OF INQUIRY INTO CASES TRIABLE BY THE COURT OF SESSION OR HIGH COURT
SECTION 206: Power to commit for trial:
State Amendments ANDHRA PRADESH (Added Territories) The amendments made in the heading of Chap. XVIII and in Section 206 by the Madras Act of 1955 shall be repealed. Same as that of Maharashtra (1). (1) In sub-section (1) of Section 206- (i) delete the words “District Magistrate, Sub-Divisional Magistrate” ; and (ii) after the words “State Government” insert the words “in consultation with the High Court”. (2) After the reorganisation of the State of Bombay in 1956, the amendments made by the above-mentioned Bombay Act are extended to the newly added areas of Hyderabad, Kutch and Saurashtra and the region of Vidarbha as from 1-9-1959 by Bom. Act XCVII of 1958. MYSORE In Section 200 omit the words ”District Magistrate, Sub-Divisional Magistrate”. PUNJAB, HARYANA AND CHANDIGARH In sub-section (1) of Section 206, for the words “any Presidencey Magistrate, District Magistrate, Sub-Divisional Magistrate or Magistrate of the first class, or any Magistrate (not being a Magistrate of the third class) specially empowered in this behalf by the State Government ” substitute the words “any Chief Judicial Magistrate or a Judicial Magistrate of the first class or any Judicial Magistrate of the second class specially empowered in this behalf by the High Court”. RAJASTHAN (Abu Area) Same as that of Maharashtra (1). TAMIL NADU (1) In Chapter XVIII, in the heading omit the words “or High Court”. (2) In Section 206- (i) in sub-section (1) omit the words “or High Court” ; and (ii) omit sub-section (2). UNION TERRITORIES (Except CHANDIGARH) In its application to the Union territories, in sub-section (1) of Section 206, for the words and brackets “any Presidency Magistrate, District Magistrate, Sub-Divisional Magistrate or Magistrate of the first class, or any Magistrate (not being a Magistrate of the third class) empowered in this behalf by the State Government,” substituti the words “Any Chief Judicial Magistrate or a Judicial Magistrate of the first class or any Judicial Magistrate of the second class empowered in this behalf by the State Government in consultation with the High Court”. WEST BENGAL For sub-section (1), substitute the following : “(1) Any Presidency Magistrate, Sub-divisional Judicial Magistrate or Judicial Magistrate of the first class or any Judicial Magistrate not being a Judicial Magistrate of the third class, empowered in this behalf by the State Government, in consultation with the High Court, may commit any person for trial to the Court of Session or High. Court for any offence triable by such court”. (2) In its application to the State of Wet Bengal including the Cooch-Behar area, in sub-section (‘) of Section 206 for the words “save as herein otherwise provided” substitute the words ”save as provided in this Code or in the City SessionsCourt Act, 1953″. (3) Transferred Territories.-The amendment made in sub-section ‘ (2) of Section 206 by the above-mentioned W. B. Act is extended to the transferred territories, that is, territories transferred to the State of West Bengal under Section 3 of Central Act XL . of 1956, as from 1-7-1959 by W. B. Act XIX of 1958, Section 3. (4) Section 7 of the City Sessions Court Act, 1953 (W. B. XX of 1953) lays down that provisions of Chapter XVIII of C. P. C. regarding committal for trial to the City Sessions Court as a Court of Session shall extend only to non-scheduled offences, as defined in Section 2(5) and 2(6) of that Act. Section 6(2) of that Act specifically states that the City Sessions Court shall not have jurisdiction to try any scheduled offence”.
(1) * * * Any Presidency Magistrate, District Magistrate, Sub-divisional Magistrate or Magistrate of the first class, or any Magistrate [(not being a Magistrate of the third class)] empowered in this behalf by the State Government, may commit any person for trial to the Court of Session or High Court for any offence triable by such Court.
(2) But, save as herein otherwise provided, no person triable by the Court of Session shall be committed for trial to the High Court,
SECTION 207: Procedure in inquiries preparatory to commitment:
[In every inquiry before a Magistrate where the case is triable exclusively by a): Court of Session or High Court, or, in the opinion of the Magistrate, ought to be tried by such Court) the Magistrate shall,- State Amendments ANDHRA PRADESH (Added Territories) The amendment made in Section 207 by Madras Act XXXIV of 1955 shall stand repealed. TAMIL NADU In Section 207 omit the words “or High Court”.
(a) in any proceeding instituted on a police report, follow the procedure specified in Section 207-A; and
(b) in any other proceeding, follow the procedure specified in the other provisions of this Chapter.
SECTION 207A: Procedure to be adopted in proceedings instituted on police report:
State Amendments ANDHRA PRADESH (Added Territorits) The amendments made in Section 207.A by Madras Act XXXIV of 1955 shall stand repealed. TAMIL NADU In Section 207-A- (i) in the Proviso to sub-section (9), omit the concluding portion beginning with the words “and, where the accused” and ending with the words “to give evidence on such trial” ; (ii) in sub-section (10), omit the words “the High Court or” and the words ” as the case may be” ; (iii) in sub-section (11), omit the first Proviso and in the second Proviso omit, the word ‘also’ occurring after the word “provided” ; (iv) in sub-section (12), omit the words “or High Court” in both the places where they occur; (v) in sub-section (13), omit the words “or High Court” wherever they occur and the words as the case may be” ; (vi) in sub-section (14), omit the words “or where the commitment is made to the High Court, to the Clerk of the State or other officer appointed in this behalf by the High Court” ; and (vii) omit sub-section (15). Notes Under Section 207-A (4) it is not incumbent on the prosecution to produce all the eyewitnesses before the committing Magistrate’s Court. The object of the amendment is to expedite the sessions trials. (1960) 1 Andh WR 1305: 1959 Cr LJ 1454: AIR 1959 The commitment order without recording any evidence is not illegal, see Section 173 supra. 1960 Cr LJ 447 : AIR 1960 All 236. The wording of sub-section (4) of Section 207-A is mandatory and the Magistrate has no discretion to dispense with the examination of the eye-witnesses. 1959 Ker I.T409: 1959 Ker LR 386. In a case where the Magistrate has decided to proceed with the trial himself under Sub-section (6) of Section 207-A, the witnesses already examined should not again be examined by the prosecution. 1959 Cr LJ 318: 63 Cal WN 454: AIR. 1959 Call 76. Under Section 207-A (4), the committal order based upon evidence of some eye-witnesses only tendered by the prosecution does not suffer from any infirmity or illegality and the prosecution can adduce in the sessions court witnesses other than those examined before the committing court. 1958 All LJ 413: 1958 Cr LJ 1419 : AIR 1958 All 861. There is nothing in Section 207-A which debars the Magistrate to examine the accused for the purpose of enabling him to explain any circumstances appearing in the documents referred to in Section 173. 61 Bom LR 1 173 : 1960 CrLJ 327: AIR 1960 Bom 124. By virtue of clause (4) of Section 207-A, Cr. P. Code the Legislature has given absolute discretion to the prosecution in the matter of production of eye-witnesses. 1960 All LJ 595 : 1961(l) Cr LJ 340: AIR 1961 All 153. Sections 435 and 439 invest the High Court with ample powers to interfere with any order of discharge or of commitment under Section 207-A, Section 215 cannot affect the revisional power of the High Court under Sections 435 and 439. 1960 CrLJ 1577; AIR. A commitment made under Section 207-A cannot be quashed under Section 215. The High Court can, where necessary, do so under Section 561-A to obtain the ends of justice. 1960 Pat LR 224 : 1960 Cr LJ 389 : AIR 1960 Pat 131. The prosecution must be deemed to have complied with Section 207-A by producing some of the witnesses to the actual commission of the offence for examination at the stage of the preliminary enquiry. 1960 Ker LJ 695 : (1961) 1 Cr LJ 63 : AIR 1961 Ker 1 (FB). The new right given to an accused person by virtue of Section 207-A (3) can only arise whrer such statements of witnesses as are referred to in Section 173(4) are recorded and not otherwise. 61 Bom LR 1644 : 1960 Cr LJ 465 : AIR 1960 Bom 150. Where a case entirely depends on circumstantial evidence, the Magistrate conducting the preliminary enquiry is not bound by any provision of law to record the evidence of the prosecution witnesses. 1960 Cr LJ 695 : (1961)1 Cr LJ 63 : AIR 1961 Ker 1 (FB). The Magistrate should so exercise his discretion in the matter of recording circumstantial evidence as to enable him to formulate a proper opinion on the question whether the accused deserves to be committed or discharged. 1959 Cr LJ 1476 : AIR 1959 Raj The word “produced” in the context in which it occurs in Section 207-A (4) can be properly interpreted only if the provisions of Sections 170 and 173 imposing acertain duty on the prosecution are taken into consideration. 1959 CrLJ 1476: AIR 1959 Raj 294. The words ‘such persons, if any” refer to such persons as are produced by the prosecution as witnesses to the actual commission of the offence alleged and the Magistrate is bound to take his evidencc. 1959 Cr LJ 1476 : AIR 1939 Raj 294. The word “may” occurring in Section 207-A (4) gives discretion to the prosecution to restrict the number of the eye-witnesses, which it must do in a manner so as not to be unfair to the accused. 1959 Cr LJ 1476 : AIR 1959 Raj 294. The committing Magistrate must examine all the eye-witnesses of the commission of the alleged offence otherwise the duty imposed on him will be bereft of all meaning under S ection 207-A. 1959 Cr LJ 1476 : AIR 1959 Raj 294. The commiting Magistrate must apply his mind to the question whether or not it is necessary in the interest of justice to take the evidence of any one or more of the other witnesses for the prosecution. 1960 Cr LJ 1577 : AIR 1960 Cal 722. The non-examination of such witnesses as are not eye-witnesses, does not vitiate the order of commitment and the Magistrate is not bound to examine such a witness. 1959 All LJ 284 : 1959 Cr LJ 795 : AIR 1959 All -108. It is the bounden duty of the Magistrate to secure the presence of all the eye-witnesses included in the charge-sheet before him in order that he may exercise his powers under Section 207-A (4). 1959 Mad LJ (Cr) 656 1959 Cr LJ 656 : AIR 1959 Andh Pra 651. Where the police report suggests the commission of an offence which is exclusively triable by a court of session, the Magistrate can nevertheless proceed to try the accused for an offence which is triable by him if he is of the view that no offence exclusively triable by a court of session is disclosed. Similarly even in a case when an offence is triable both by a Magistrate and a court of session the Magistrate is of the view that the circumstances do not warrant a trial by a court of session he can proceed with the trial for that offence himself. AIR 1966 SC 911: 1966 Cr LJ 700. Under Section 207-A (6), the examination of the witnesses to the occurrence is the only thing that could be insisted upon at the stage of enquiry and also the evidence of other witnesses, if thought necessary by the Magistrate in the interest of justice. 1959 Cr LJ 1297 : AIR 1959 Andh Pra 589. The Magistrate has only to decide whether the accused should be committed for trial. or not and no person has a right to be heard before he is ordered to be tried. 1959All LJ 284 : 1959 CrLJ 795: AIR 1959 All 408. In a case of dacoity where the only evidence is of identification, the question of visibility is of paramount importance. Where the identifying witness was not examined in the Committing Court, evidence of such witness should not be accepted. AIR 1961 All 612. Also AIR 1961 All 614. Under the Code as amended by Act 26 of 1955 a Magistrate holding committal proceedings is required to take evidence of such persons as may be produced and he may the evidence of any one or more of such other persons as in his opinion are necessary. The Magistrate has in such inquiries relating to charges for serious offences like murder the power and indeed the duty interest of the accused as well as the public to record the evidence of other witnesses material to the actual commission of the offence. 1963 ALJ (SC) 882 :AIR 1965 SC 712 : 1965(1) Cr LJ 636. A magistrate has power, if he thinks it necessary, to examine the accused for the purpose of enabling him to explain any circumstance appearing in the evidence, the evidence requiring explaining may be oral or documentary. 1964 ALJ (SC; 678. The believing or disbelieving of a witness is in discretion of the court but where a witness was not produced before the committing Magistrate it is no ground for disbelieving his evidence in the Sessions Court. 1962 ALJ 1 119. The language of the two sections is undoubtedly different, but the test for discharging the accused must, in a large way, be the same under both sections. Neither of the two sections invests the Magistrate with the jurisdiction to decide the case, as if the Sessions trial was before him. If there is evidence to justify a trial before the Sessions he must commit the accused. If the Magistrate passes an order of discharge he exceeds his jurisdiction. AIR 1952 SC 1195.
(1) When, in any proceeding instituted on a police-report, the Magistrate receives the report forwarded under Section 173, he shall, for the purpose of holding an inquiry under this section, fix a date which shall be a date not later than fourteen days from the date of the receipt of the report, unless the Magistrate, for reasons to be recorded, fixes any later date.
(2) If, at any time before such date, the officer conducting the prosecution applies to the Magistrate to issue a process to compel the attendance of any witness or the production of any document or thing, the Magistral shall issue such process unless, for reasons to be recorded, he deems if unnecessary to do so.
(3) At the commencement of the inquiry, the Magistrate shall, when the accused appears or is brought before him, satisfy himself that the documents referred to in Section 173 have been furnished to the accused and if he finds that the accused has not been furnished with such documents or any of them, he shall cause the same to be so furnished.
(4) The Magistrate shall then proceed to take the evidence of such persons, if any, as may be produced by the prosecution as witnesses to the actual commission of the offence alleged ; and if the Magistrate is of opinion that is necessary in the interests of justice to take the evidence of any one or more of the other witnesses for the prosecution, he may take such evidence also.
(5) The accused shall be at liberty to cross-examine the witnesses examined under sub-section (4), and in such case, the prosecutor may re-examine them.
(6) When the evidence referred to in sub-section (4) has been taken and the Magistrate has considered all the documents referred to in Section 173 and has, if necessary, examined the accused for the purpose of enabling him to explain any circumstances appearing in the evidence against him and given the prosecution and the accused an opportunity of being heard, such Magistrate shall, if he is of opinion that such evidence and documents disclose no grounds for committing the accused person for trial, record his reasons and discharge him, unless it appears to Magistrate that such person should be tried before himself or some other Magistrate, in which case shall proceed accordingly.
(7) When, upon such evidence being taken, such documents being considered, such examination (if any) being made and the prosecution and the accused being given an opportunity of being heard, the Magistrate is of opinion that the accused should be committed for trial, he shall frame a charge under his hand, declaring with what offence the accused is charged.
(8) As soon as such charge has been framed, it shall be read and explained to the accused and a copy thereof shall be given to him free of cost.
(9) The accused shall be required at once to give in, orally or in writing, list of the persons, if any, whom he wishes to be summoned to give evidence on his trial : Provided that the Magistrate may, in his discretion, allow the accused to give in his list or any further list of witnesses at a subsequent time ; and, where the accused is committed for trial before the High Court, nothing in this sub-section shall be deemed to preclude the accused from giving, at any time before his trial to the Clerk of the State, a further list of the persons whom he wishes to be summoned to give evidence on such trial.
(10) When the accused, on being required to give in a list under sub-section (9) has declined to do so, or when he has given in such list, the Magistrate may make an order committing the accused for trial by the High Court or the Court of Session, as the case may be, and shall also record briefly the reasons for such commitment.
(11) When the accused has given in any list of witnesses under sub-section (9) and has been committed for trial, the Magistrate shall summon the witnesses included in the list to appear before the Court to which the accused has been committed : Provided that where the accused has been committed to the High Court the Magistrate may, in his discretion, leave such witnesses to be summoned by the Clerk of the State and such witnesses may be summoned accordingly : Provided also that if the Magistrate thinks that any witness is included in the list for the purpose of vexation or delay, or of defeating the ends of justice, the Magistrate may require the accused to satisfy him that there are reasonable grounds for believing that the evidence of such witness is material, and if he is not so satisfied, may refuse to summon the witness (recording his reasons for such refusal), or may before summoning him require such sum to be deposited as such Magistrate thinks necessary to defray the expenses of obtaining the attendance of the witness and all other proper expenses,
(12) Witnesses for the prosecution, whose attendance before the Court of Session or High Court is necessary and who appear before the Magistrart shall execute before him bonds binding themselves to be in attendance when called upon by the Court of Session or High Court to give evidence.
(13) If any witness refuses to attend before the Court of Session or High Court, or execute the bond above directed, the Magistrate may detalin him in custody until he executes such bond or until his attendance at the Court of Session or High Court is required, when the Magistrate shall send him in custody to the Court of Session or High Court as the case may be.
(14) When the accused is committed for trial, the Magistrate shall issue an order to such person as may be appointed by the State Government in this behalf, notifying the commitment, and stating the offence in the same form as the charge; and shall send the charge, the record of the inquiry and any weapon or other thing which is to be produced in evidence, to the Court of Session or where the commitment is made to the High Court, to the Clerk of the State or other officer appointed in this behalf by the High Court,
(15) When the commitment is made to the High Court and any part of the record is not in English, an English translation of such part shall be forwarded with the record.
(16) Until and during the trial, the Magistrate shall, subject to the provisions of this Code regarding the taking of bail, commit the accused by warrant to custody.]
SECTION 208: Taking of evidence produced:
Notes Though the language of Section 209 differs from that in Section 207.A, it is well settled that under neither of the sections the Magistrate has the jurisdiction to assess and evaluate the evidence before him for the purpose of seeing whether there is sufficient evidence for conviction. The reason obviously is that if he were to do that he would be trying the case himself instead of leaving it to be done by the Sessions Court which alone has under the Code the the jurisdiction to try it. Rajpal Singh v Jai Singh, 1970 (2) SCC 206: 1970 SCC (Cri) 392 : AIR 1970 SC 1015.
(1) [In any proceeding initituted otherwise than on a police-report, the Magistrate shall], when the accused appears or is brought before him, proceed to hear the complainant (if any), and take in manner hereinafter provided all such evidence as may be produced in support of the prosecution or on behalf of the accused, or as may be called by the Magistrate.
(2) The accused shall be at liberty to cross-examine the witnesses for the prosecution, and in such case the prosecutor may re-examine them.
(3) Process for production of further evidence.-If the complainant or officer conducting the prosecution, or the accused, applies to the Magistrate to issue process to compel the attendance of any witness or the production of any document or thing, the Magistrate shall issue such process unless, for reasons to be recorded, he deems it unnecessary to do so.
(4)Nothing in this section shall be deemed to require a Presidency Magistrate to record his reasons.
SECTION 209: When accused person to be discharged:
(1) When the evidence referred to in Section 208, sub-sections (1) and (3), has been taken, and he has (if neccssaary) examined the accused for the purpose of enabling him to explain any circumstances appearing in the evidence against him, such Magistrate shall, if he finds that there are not sufficient grounds for committing the accused person for trial, record his reasons and discharge him, unless it appears to the Magistrate that such person should be tried before himself or some other Magistrate, in which case he shall proceed accordingly.
(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.
SECTION 210: When charge is to be framed:
(1) When, upon such evidence being taken and such examination (if any) being made, the Magistrate is satisfied that there are sufficient grounds for committing the accused for trial, he shall frame a charge under his hand, declaring with what offence the accused is charged.
(2) Charge to be explained, and copy furnished, to accused.-As soon as [such charge] has been framed, it shall be read and explained to the accused, and a copy thereof shall, if he so requires, be given to him free of cost.
SECTION 211: List of witnesses for defence on trial:
State Amendments ANDHRA PRADESH (Added Territories) The amendment made in Section 2 11 by Madras Act XXXIV of 1955 shall stand repealed. TAMIL NADU In sub-section (2) of Section 211 omit the portion beginning with the words “and where the accused” and ending with the words “on such trial”,
(1) The accused shall be required at once to give in orally or in writing, alist of the persons (if any) whom he wishes to be summoned to give evidence on his trial.
Farther list.-(2) The Magistrate may, in his discretion, allow the accused to give in any further list of witnesses at a subsequent time; and where the accused is committed for trial before the High Court, nothing in this section shall be deemed to preclude the accused from giving, at any time before his trial, to the [Clerk of the State] a further list of the persons whom he wishes to be summoned to give evidence on such trial.
SECTION 212: Power of Magistrate to examine such witnesses:
The Magistrate may, in his discretion, summon and examine any witness named in any list given to him under Section 211.
SECTION 213: Order of commitment:
State Amendments ANDHRA PRADESH (Added Territories) The amendment made in Section 213 by Madras Act XXXIV of 1955 shall stand repealed. MAHARASHTRA : GUJARAT Section 13 of the Bombay Children Act, 1938 (Bombay Act LXXI of 1948) provides that notwithstanding anything contained in the Code of Criminal Procedure, 1898, in a case in which a child is being tried together with an adult in accordance with the provisions of that Act and the Magistrate comes to the conclusion that the case is fit one for committal to the Court of Sessions then he shall commit the adult alone to the Sessions Court and proceed with the trial in respect of the child. Bombay Children Act, 1948 has now been extended to the whole State of Maharashtra. The Act also applies to the State of Gujarat. TAMIL NADU In sub-section (1) of Section 213 omit the words “the High Court or” and the brackets and words “(as the case may be)” and “(unless the Magistrate is a Presidency Magistrate)”,
(1) When the accused, on being required to give in a list under Section 211, has declined to do so, or when he has given in such list and the witnesses (if any) included therein whom the Magistrate desires to examine have been summoned and examined undar Section 212, the Magistrate may make an order committing the accused for trial by the High Court or the Court of Session (as the case may be), and (unless the Magistrate is a Presidency Magistrate) shall also record briefly the reasons for such commitment.
(2) If the Magistrate, after hearing the witnesses for the defence, is satisfied that there are not sufficient grounds for committing the accused, he may cancel the charge and discharge the accused.
SECTION 214:
[Person charged outside presidency-towns jointly with European British subject]. Rep. by the Criminal Law Amendment Act, 1923 (12 of 1923), Section 10.
SECTION 215: Quashing commitments under Section 213:
A commitment once made under Section 213 [* * *] by a competent Magistrate [* * *] or by a Civil or Revenue Court under Section 478, can be quashed by the High Court only, and only on a point of law. Notes The witnesses ought to have been summoned to appear in court and the Magistrate has not exercised his judicial discretion properly in having evidence of important witnesses recorded on commission.. Even assuming that the forgery was committed in Burma but the fact that the forged documents were used in India, the accused could be tried in India under Section 471, Penal Code. 1961 MLJ (Cr) 1 14. The fact that a complaint is defective is no ground for holding that no case at all has been made out, and is, therefore, no ground to quash the proceedings. 1960 Cr LJ 470 : AIR 1960 J and K 55. The delay on the part of the prosecuting agency to insist upon a fresh prosecution for the same offence but for another period does not make the second prosecution illegal. 195? All LJ 164 : 1959 Cr LJ 1265 : AIR 1959 All 703. The inherent powers of High Court under Section 561-A cannot be invoked in regard to matters which are directly covered by specific provisions of the Code and hence the count is clearly in error in invoking that section in questioning a commitment proceeding which is a matter under Section 215. 1959 Cr LJ 158: AIR 1959 SC 512. For the questioning of committal order under Section 207-A, see Section 207-A supra. 1960 Cr LJ 389 : AIR 1960 Pat 131. Where the accused has not been properly described in the charge but there is no dispute as to the identity of the accused, defect does not vitiate the conviction. AIR 1960 Trip 40.
SECTION 216: Summons to witnesses for defence when accused is committed:
When the accused has given in any list of witnesses under Section 21 I and has been committed for trial, the Magistrate shall summon such of the witnesses included in the list, as have not appeared before himself, to appear before the Court to which the accused has been committed: Provided that, where the accused has been committed to the High Court, the Magistrate may, in his discretion, leave such witnesses to be summoned by the [Clerk of the State], and such witnesses may be summoned accordingly: Refusal to summon unnecessary witness unless deposit made.- Provided also, that if the Magistrate thinks that any witness is included in the list for the purpose of vexation or delay) or of defeating the ends of justice, the Magistrate may require the accused to satisfy him that there are reasonable grounds for believing that the evidence of such witness is material, and, if he is not satisfied, may refuse to summon the witness (recording his reasons for such refusal), or may before summoning him require such sum to be deposited as such Magistrate thinks necessary to defray the expense of obtaining the attendance of the witness and all other proper expenses. State Amendments ANDHRA PRADESH (Adiitd Territories) The amendments made in Section 216 by Madras Act XXXIV of 1955 shall stand repealed. TAMIL NADU (a) Omit the first Proviso ; (b) in the second Proviso, Omit the word ‘also’.
SECTION 217: Bond of complainants and witnesses:
State Amendments ANDHRA PRADESH (Added Territories) The amendments made in Section 217 by Madras Act XXXIV of 1955 shall stand repealed. TAMIL NADU In Section 217, omit the the wolds “or High Court” wherever they occur and in sub-section (2) omit also the words “as the case may be”,
(1) Complainants and witnesses for the prosecution and defence) whose attendance before the Court of Session or High Court is necessary and who appear before the Magistrate, shall execute before him bonds binding themselves to be in attendance when called upon at the Court of Session or High Court to prosecute or to give evidence, as the case may be.
Detention in custody in case of refusal to attend or to executed bond.-(2) If any complainant or witness refuses to attend before the Court of Session or High Court, or execute the bond above directed, the Magistrate may detain him in custody until he executes such bond, or until his attendance at the Court of Session or High Court is required, when the Magistrate shall send him in custody to the Court of Session or High Court, as the case may be.
SECTION 218: Commitment when to be notified:
State Amendments ANDHRA PRADESH (Added Territories) The amendments made in Section 218 by Mardas Act XXXIV of 1955 shall stand (a) Ia sub-section (1) omit the words and brackets “or (where the commitment is made to the High Court) to the Clerk of the State or other officer appointed in this behalf by the High Court”; (b) omit sub-section (2).
(1) When the accused is committed for trial, the Magistrate shall issue an order to such person as may be appointed by the State Government in this behalf, notifying the commitment, and slating the offence in the same form as the charge, unless the Magistrate is satisfied that such person is already aware of the comaitment and the form of the charge ; Charge, etc., to be forwarded to High Court or Court of Session.-and shall send the charge, the record of the inquiry and any weapon or other things which is to be produced in evidence, to the Court of Session or (where the commitment is made to the High Court) to the [Clerk of the State] or other officer appointed in this behalf by the High Court,
English translation to be forwarded to High Court.-(2) When the commitment is made to the High Court and any part of the record is not in English, an English translation of such part shall be forwarded with the record,
SECTION 219: Power to summon supplementary witnesses:
State Amendment WEST BENGAL (1) In sub-section (2), for the words, “where the Magistrate is not a Presidency Magistrate” substitute the words “except where the commitment is made to the High court (2) The amendment made in Section 219 by the above-mentioned W. B. Act is extended to the Transferred territorics, that is, territories transferred to the State of West Bengal under Section 3 of Central Act XL of 1956, as from 1-7-1959.
(1) [The committing Magistrate or, in the absence of such Magistrate, any other Magistrate empowered by or under Section 206] may, if he thinks fit, summon and examine supplementary witnesses after the commitment and before the commencement of the trial, and bind them over in manner hereinbefore provided to appear and give evidence.
(2) Such examination shall, if possible, be taken in the presence of the accused, and, where the Magistrate is not a Presidency Magistrate, a copy of the evidence of such witnesses shall [be given to the accused free of cost.]
SECTION 220: Custody of accused pending trial:
Until and during the trial, the Magistrate shall, subject to the provisions of this Code regarding the taking of bail, commit the accused, by warrant, to custody.
CHAPTER 19: OF THE CHARGE:
SECTION 221: Charge to state offence:
Notes Where one of the main ingredients of Section 161, namely, rendering or attempting to sender any service with any public servant is not referred to in the charge under Section 161, nor spoken to by the witness nor mentioned in the complaint, the accused is entitled to acquittal. 72 Mad LW 764: 1960 Cr LJ 363 : AIR 1960 Mad 141. No prejudice is caused to the accused by the mere non-mention of the specific clauses of sub-section(l) of Section 5 in the charge. AIR 1960 Mys lll. When it is required that the accused should be dealt with severely because of a previous conviction, there must be a specific charge under Section 75, Penal Code. 1959 Andh LT 851 : 1960 Cr LJ 1302 : AIR 1960 Andh Pra 490. Where the committing Magistrate had framed a charge under Section 307, Penal Code and on the same charge the trial court convicted the accused under Section 387, Penal Code, held that the accused was really prejudiced by the error in the charge and as such the conviction was bad in law. 1959 MPLJ 1186 : 1960 Cr LJ 78 : AIR 1960 Madh Pra 11.
(1) Every charge under this Code shall state the offence with which the accused is charged.
(2) Specific name of offence sufficient description.-If the law which creates the offence gives it any specific name, the offence may be described in the charge by that name only.
(3) How stated where offence has no specific name.-If the law whichcreates the offence does not give it any specific name, so much of the definition of the offence must be stated as to give the accused notice of the matterwith which he is charged.
(4) The law and section of the law against which the offence is said have committed shall be mentioned in the charge.
(5) What implied in charge.-The fact that the charge is made equivalent to a statement that every legal condition required by law constitute the offence charged was fulfilled in the particular case.
(6) Language of charge.-In the presidency-towns the charge shall written in English; elsewhere it shall be written either in English or in to language of the Court.
(7) Previous conviction when to be set out.-If the accused [having been previously convicted of any offence, is liable, by reason such previous conviction, to enhanced punishment, or to punishment of different kind, for a subsequent offence, and it is intended to prove of a previous conviction for the purpose of affecting the punishment which the Court may think fit to award for the subsequent offence], the fact, date and place of the previous conviction shall be stated in the charge. If such statement [has been omitted], the Court may add it at any time before sentence is passed.
Illustrations (a) A is charged with the murder of B. This is equivalent to a statement that A’s act fell within the definition of murder given in Sections 299 and 300 of the Indian Penal Code ; that it did not fall within any of the general exceptions of the same Code ; and that it did not fall within any of the five exceptions to Sections 300, or that, if it did fall within Exception I,one or other of the three provisos to that exception apply to it. (b) A is charged, under Section 326 of the Indian Penal Code, with voluntaarily causing grievous hurt to B by means of an instrument for shooting. This is equivalent to a statement that the case was not provided for by Section 335 of the Indian Penal Code, and that the general exceptions did not apply to it. (c) A is accused of murder, cheating, theft, extortion, adultery or criminal intimidation or using a false property-mark. The charge may state that A committed murder, or cheating, or theft, or extortion, or adultery, or criminal intimdation, or that he used a false property-mark without reference to the definitions of those crimes contained in the Indian Penal Code; but the section under which the offence is punishable must, in each instance, be referred to in the charge, (d) A is charged, under Section 184 of the Indian Penal Code, with intentionally obstructing a sale of property offered for sale by the lawful authority of a public servant. The charge should be in those words.
SECTION 222: Particulars as to time, place and person:
Notes It is an enabling section for the prosecution to put in a gross sum representing the total amount misappropriated by the accused instead of framing a large number of separate charges in respect of small sums of money which go to make up the gross amount. 1959 Cr LJ 1 138 : AIR 1959 Andh Pra 520, see also AIR 1965 SC 1248 : (1965) 2 Cr LJ 253. The trial of the accused on a composite charge of criminal conspiracy and criminal breach of is liable to be vitiated. 61 Bom LR 1001 : 1960 Cr LJ 573 : AIR 1960 Bom If the criminal trial is conducted substantially in the manner prescribed by the code but some irregularity occurs in the course of such conduct, the irregularity can be cured under Section 537. 1960 Cr LJ 1013 : AIR 1960 SC 409. There is a clear distinction between provisions which prescribe the manner of a trial and provisions which provide for the conduct of the trial. An infringement of a provision as to the manner of a trial cannot be cured by Section 537, Cr. P. Code. 61 Bom LR 1001 : 1960 Cr MPLJ 573 : AIR 1960 Bom 205. Joint trial of two persons for a criminal charge of defalcation is not proper under law unless is shown that both of them acted in common concert in misappropriating the money. 1959 MPLJ (Notes) 85. Two persons can be charged with misappropriation of the same sum, if they act in concert. 1959 MPLJ (Notes) 85. Where there is already a trial in respect of a gross sum alleged to have been embezzled between two specific dates, a second trial in respect of another sum embezzled on intermediate days but not included in the gross sum for which the earlier charge was framed is not ruled out by reason of provisions of Section 222(2) but there must be explanation for its noninclusion in the previous trial. 1959 BLJR 664 : 1960 Cr LJ 503: AIR 1960 Pat 168. It is for the cashier to prove that he did not misappropriate each and every specific item of money from his master but failed to account for it, burden shifts on him to show what he did with the money. 1959 MPLJ (Notes) 85. Where the charge was in respect of the gross sum embezzled within the period 6-3-1949- 30-6-1950 the charge contravened the proviso to Section 222(2), but the defect was not such as to prejudice the accused and therefore did not vitiate the trial as the charge could have been split up into two charges with respect to two periods and tried together. AIR 1962 SO
(1) The charge shall contain such particulars as to the time and place of the alleged offence. and the person (if any) against whom, or the thing (if any) inrespect of which, it was committed, as are reasonably sufficient to give the accused notice of the matter with which he is charged.
(2) When the accused is charged with criminal breach of trust or [ dishonest misappropriation of money or other movable property, it shall be sufficeient to specify the gross sum or, as the case may be, describe the movable property] in respect of which the offence is alleged to have been committed, and the dates between which the offence is alleged to have been committed, without specifying particular items or exact dates, and the charge so framed shall be deemed to be a charge of one offence within the meaning Provided that the time included between the first and last of such dates shall not exceed one year.
SECTION 223: When manner of committing offence must be stated:
When the nature of the case is such that the particulars mentioned in Sections 221 and 222 do not give the accused sufficient notice of the matter with which he is charged, the charge shall also contain such particulars of the manner in which the alleged offence was committed as will be sufficient for that purpose. Notes In every case under Section 34, Penal Code, the Court should clearly mention in the charge that the crime was committed in furtherance of a common intention. 1960 Cr L J 437 : 1960 All LJ 136 : AIR 1960 All 223. For the acquittal of the accused in a case where charge under Section 161, I. P. Code did not mention rendering of any service with public servant, see Section 221 supra. 1960 Cr LJ 363 : AIR 19t)0 Mad 141.
Illustrations (a) A is accused of the theft of a certain article at a certain time and place. The charge need not set out the manner in which the theft was effected. (b) A is accused of cheating B at a given time and place. The charge must set out the manner in which A cheated B. (c) A is accused of giving false evidence at a given time and place. The charge must set out that portion of the evidence given by A which is alleged to be false. (d) A is accused of obstructing B, a public servant, in the discharge of his public functions at a given time and place. The charge must set out the manner in which A obstructed B in the discharge of his functions, (e) A is accused of the murder of B at a given time and place. The charge need not state the manner in which A murdered B. (f) A is accused of disobeying a direction of the law with intent to save B rom punishment. The charge must set out the disobedience charged and the law infringed.
SECTION 224: Words in charge taken in sense of law under which offence is punishable:
In every charge words used in describing an offence shall be deemed to have been used in the sense attached to them respectively by the law under which inch offence is punishable.
SECTION 225: Effect of errors:
No error in staling either the offence or the particulars required to be slated in the charge, and no omission to state. the offence or those particulars, shall be regarded at any stage of the case as material, unless the accused was in fact misled by such error or omission, and it has occasioned a failure of justice. Notes Conversion for an offence with which the accused is not charged at all is an exception to the general rule and Sections 225, 237 and 238, which contain the exceptions should be strictly construed. 1960 Cr LJ 857 : AIR 1960 All 387. When accused was charged under Section 307, Penal Code, his conviction under Section 387 is bad in law. 1960 Cr LJ 78 : AIR 1960 MP 11. For its application, see Section 238, infra, 1960 Cr I J 857 : AIR 1960 All 387. Where the accused were convicted under Section 447 of which they were not charged,1 it was held that the non-framing of a charge under Section 447, I. P Code had occasioned no failure of justice as evidence had been led by both the parties in respect of both the offences,, and the petitioners were defended by lawyers. 26 Cut LT 374 : 1960 Cr L J 1352 : AIR 1960 Ori 168. In a case of objection to the conviction on erroneous admission of guilt, reliance on Section 225 and 237 can be of no avail. l958KerLT 1136: 1959 Cr LJ 1074: AIR 1959 Ker 248. Where the accused was charged and convicted under Section 165-A, 1. P. Code for abetment but in appeal the High Court charged the conviction as one under Sections 161 109, I. P. Code by reason that Section 165-A had not come into force at the time of commission of the offence, and the sentence was maintained it was held that no illegality was committed. 1960 Cr LJ 544 : AIR 1960 SC 409. Where a charge of criminal conspiracy under Section 120-B, read with Section 467, 471 and 420, Penal Code was made and reference was therein to certain sections of the Penal Code merely for the purpose of indicating objects of conspiracy. Held that the charge was not a jumbled one and that the accused fully understood its implication, because at no time was such objection raised against the charge. An objection regarding charge therefore would not be allowed to be raised before the Supreme Court. AIR 1963 SC 666. Charge for an offence-Conviction for another offence-Omission to same alternative charge-Validity. 1969 SCC Digest, p. 230.
Illustrations (a) A is charged under Section 242 of the Indian Penal Code, with “having been in possession of counterfeit coin, having known at the time when he become possessed thereof that such coin was counterfeit”) the word “fraudulently” being omitted in the charge. Unless it appears that A was in fact misled by this omission, the error shall not be regarded as material. (b) A is charged with cheating B, and the manner in which he cheated B is not set out in the charge, or is set out incorrectly. A defends himself, calls witnesses and gives his own account of the transaction. The Court may infer from this that the omission to set out the manner of the cheating is not material. (c) A is charged with cheating B, and the manner in which he cheated B is not set out in the charge. There were many transactions between A and B, and A had no means of knowing to which of them the charge referred, and offered no defence. The Court may infer from such facts that the omission to set out the manner of the cheating was, in this case, a material error. (d) A is charged with the murder of Khoda Baksh on the 21st January ,1882. In fact, the murdered person’s name was Haidar Baksh, and the date of the murder was the 20th January, 1882. A was never charged with any murder but one, and had heard the inquiry before the Magistrate, which referred exclusively to the case of Haidar Baksh, The Court may infer from these facts that A was not misled, and that the error in the charge was immaterial. (e) A was charged with murdering Haidar Baksh on the 20th January, 1882, and Khoda Baksh (who tried to arrest him for that murder) on the 21st January, 1882. When charged for the murder of Haidar Baksh, he was tried for the murder of Khoda Baksh. The witnesses present in his defence were witnesses in the case of Haidar Baksh. The Court may infer from this that A was misled, and that the error was material.
SECTION 226: Procedure on commitment without charge or with imperfect charge:
-When any person is committed for trial without a charge, or with an imperfect or erroneous charge, the Court, or, in the case of a High Court, the [Clerk of the State], may frame a charge or add to or otherwise alter the charge, as the case may be, having regard to the rules contained in. this Code as to the form of charges. State Amendments ANDHRA PRADESH (Added Territories) The amendment made in Section 226 by Madras Act XXXIV of 1955 shall stand repealed. TAMIL NADU In Section 226 omit the words “or, in the case of a High Court, the Clerk of the Statt”.
Illustrations (1) A is charged with the murder of C. A charge of abetting the murder of C may be added or substituted. (2) A is charged with foregoing a valuable security under Section 467 of the Indian. Penal Code. A charge of fabrication of false evidence under Section 193 may be added. (3) A is charged with receiving stolen property knowing it to be stolen. During the trial it incidentally appears that he has in his possession instruments for the purpose of counterfeiting coin. A charge under Section 235 of the Indian Penal Code cannot be added.
SECTION 227: Court may after charge:
State Amendments ANDHRA PRADESH (Added Territories) The amendment made in Section 227 by Madras Act XXXIV of 1955 shall stand repealed.. Notes For power to order splitting up of charges, see Section 494 infra. 1960CrLJ278:AIR 1960 Raj 44. A Magistrate is competent always to alter or add any charge till the time he has pronounced the judgment. 1959 MPLJ 126 : 1959 Jab LJ 48 ; (1961) 1 Cr LJ 104 : AIR 1961 Mani 5.
(1) Any Court may alter or add to any charge at any time before judgment is pronounced, or in the case of trials [by Jury] before the Court of Session or High Court) before the verdict of the jury is returned * *
(2) Every such alteration or addition shall be read and explained to the accused.
TAMIL NADU In sub-section (1) of Section 227 omit the words “or High Court”,
SECTION 228: When trial may proceed immediately after alteration:
If the charge framed or alteration or addition made under Section 226 or Section 227 is such that proceeding immediately with the trial is not likely, in the opinion of the Court, to prejudice the accused in his defence or the prosecutor in the conduct of the case, the Court may, in its discretion, after such charge or alteration or addition has been framed or made, proceed with the trial as if the new or altered charge had been the original charge.
SECTION 229: When new trial may be directd, or trial suspended:
If the new or altered or added charge is such that proceeding immediately with the trial is likely, in the opinion of the Court, to prejudice the accused or the prosecutor as aforesaid, the Court may either direct a new trial or adjourn the trial for such period as may be necessary.
SECTION 230: Stay of proceedings if prosecution of offence in altered charge required previous sanction:
If the offence stated in the new or altered or added charge is one for the prosecution of which previous sanction is necessary, the case shall not be proceeded with until such sanction is obtained, unless sanction has been already obtained for a prosecution on the same facts as those on which the new or altered charge is founded.
SECTION 231: Recall of witnesses when charge altered:
Whenever a charge, is altered or added to by the Court after the commencement of the trial, the prosecutor and the accused shall be allowed to recall or re-summon, and examine with reference to such alteration or addition, any witness who may have been examined, and also to call any further witness whom the Court may think to be material.
SECTION 232: Effect of material error:
Note Where accused was charged under Section 326, Penal Code but was convicted under Section 326, read with Section 34 without charge being framed under Section 34, it was held thath the accused was misled in his defence and the error was not curable under Section 537. (1961) 1 Cr LJ 104 : AIR 1961 Mani 5.
(1) If any Appellate Court, or the High Court in the exercise of its powers of revision or of its powers under Chapter XXVII, is of opinion that any person convicted of an offence was misled in his defence by the absence of a charge or by an error in the charge, it shall direct a new trial to be had upon a charge framed in whatever manner it thinks fit.
(2) If the Court is of opinion that the facts of the case are such that no valid Charge could be preferred against the accused in respect of the facts proved, it shall quash the conviction.
Illustratuion A is convicted of an offence, under Section 196 of the Indian Penal Code, upon a charge which omits to state that he knew the evidence, which he corruptly used or attempted to use as true or genuine, was false or fabricated. If the Court thinks it probable that A bad such knowledge, and that he was misled in his defence by the omission from the charge of the statement that he had it, it shall direct a new trial upon an amended charge ; but if it apppears probable from the proceedings that A had no such knowledge, it shall quash the conviction.
SECTION 233: Separate charges for distinct offences:
For every distinct offence of which any person is accused there shall be a separate charge, and every such charge shall be tried separately, except in the cases mentioned in Sections 234, 235, 236 and 239. Notes Mere non-framing of a charge will not vitiate the trial. If no prejudice is caused to the accused, the non-framing of the charge is only a technical defect, curable by the effect of the provisions of Section 535, Cr. P. Code. 1957 All LJ 881. The Magistrate is justified in refuting to amalgamate a private complaint and police challan filed against the accused in respect of the same offence under Section 307, I.P.C. 1960 MPLJ 312 : 1960 Cr LJ 831 : AIR 1960 Madh Pra 177. Where in the framing of a charge practically every provision contained in Sections 233, 234, 235, 236 and 239 of Cr. P. Code has been discharged, such a charge cannot be regarded as a charge in the eye of law and any proceeding taken on the basis of such a charge must be net aside in appeal. 1959 Cr LJ 1015 : AIR 1959 Andh Pra 477. Section 239(d) allows ajoinder of persons at a criminal trial. Section 235(1) allows joinder of charges subject to certain conditions laid down in the said provisions. In other words, these provisions constitue an exception to the provisions of Section 233 and also Section 234(2). 1960 Cr LJ 1013 : AIR 1960 SC661. Where a conspiracy contains element of abetment, the prosecution need not be limittd to abetment only but can be for conspiracy also. AIR 1961 SC 1241. Offences which are distinct and not inter-related are distinct offences and rcquire a separate charge. The charge should be for every distinct offence and not for every offence. In a contract to supply wood to Government money was obtained on diverse bills, held that a single charge under Section 420, Penal Code, did not contravene Section 233 as object of conspiracy was not to obtain diverse amounts but to obtain contract money from Government AIR 1963 SC 1620. Where the objection to joint trial has not been raised at trial, the presumption is that the accused apprehended no prejudice. AIR 1966 SC 128 : 1906 Cr LJ 106. If the charge of conspiracy to commit criminal breach of trust is followed by a substantive charge of criminal breach of trust in pursuance of such conspiracy there is nothing to prevent the Court convicting an accused under the second charge even if the prosecution fails to establish conspiracy. In any event, there was no prejudice caused to him as he was aware that there was a substantive charge under Section 409 against him. The decision of the Kerala High Court in K. Moosa v. State, AIR,1963 Ker 68 is directly contrary to the Supreme Court’s decision in Willies Slaney v. State of Madhya Pradesh, (1955) 2 SCR 1140: AIR 1936 SC 1 16. Madan Lal v. State of Punjab, AIR 1967 SC 1590 at 1594. An investigation made by an officer below the rank of a Dy, S. P. or an illegality committed in the course of investigation does not affect the competence and jurisdiction of the court for trial when cognizance of the case has in fact been taken and the case has proceeded to termination does not vitiate the result unless miscarriage of justice has been caused thereby. Munnnal v. State of U. P., AIR 1964 SC 28 and State of U. P. v. Bhagwat Kishore, AIR 1964 SC 221 ; H. N. Rishbud v. State of Dilhi, (1955) 1 SCR 1150 : 1955 Cr LJ 526; Sailendra Nath v. State of Bihar, AIR 1968 SC 1292 at 1296.
Illustration A is accused of a theft on one occasion, and of causing grievous hurt on another occasion. A must be separately charged and separately tried for the theft and causing grievous hurt.
SECTION 234: Three offences of same kind within year may be charged together:
(1) When a person is accused of more offences than. one of the same kind committed within the space of twelve months from the first to the last of such offences [whether in respect of the same person or not], he may be charged with, and tried at one trial for, any number of them not exceeding three.
(2) Offences are of the same kind when they are punishable with the same amount of punishment under the same section of the Indian Penal Code or of any special or local law : [Provided that, for the purpose of this section, an offence punishable under Section 379 of the Indian Penal Code shall be deemed to be an offence of the same kind as an offence punishable under Section 380 of the said Code, and that an offence punishable under any section of the Indian Penal Code, or of any special or local law, shall be deemed to be an offence of the same kind as an attempt to commit such offence, when such an attempt is an offence].
SECTION 235: Trial for more than one offence:
Notes In a series of blows struck, one of them proves fatal, it is not illegal to combine charge under Section 334 for such fatal blows with that under Section 323 for others. 1959 Ker LT 258 : 1959 Cr LJ 1331 -. AIR 1959 Ker 372. If several offences are committed by different persons in the lame series of action, the trial is not bad for misjoinder of charges and persons for having made the incident which occurred before the accused was taken into custody along with the incident which took place later at the police station as no prejudice is caused to the accused nor justice is misccarried thereby. Clause (b) of Section 537 saves the trial from being vitiated for the alleged misjoinder. 1959 Ker LT 258: 1959 Cr LJ 1331: AIR 1959 Ker 372.
(1) If, in one series of acts so connected together as to form the same transaction, more offences than one are committed by the same person, he may be charged with, and tried at one trial for, every such offence.
Offence falling within two definitions.-(2) If the acts alleged constitute an offence falling within two or more separate definitions of any law in force for the time being by which offences are defined or punished, the person accused of them may be charged with, and tried ai one trial for, each of such offences.
Acts constituting one offence, but constituting when combined a different offence.-(3) If several acts, of which one or more than one would by itself or themselves constitute an offence, constitute when combined a different offence, the person accused of them may be charged with, and tried at one trial for, the offence constituted by such acts when combined, and for any offence constituted by any one, or more, of such acts.
(4) Nothing contained in this section shall affect the Indian Penal Code, section 71.
Illustrations (a) A rescues B, a person in lawful custody, and in so doing causes grievous hurt to C, a constable in whose custody B was. A may be charged with, and convicted of, offences under Sections 225 and 333 of the Indian Penal (b) A commits house-breaking by day with intent to commit adultery, and commits, in the house so entered, adultery with B’s wife. A may be separately charged with, and convicted of, offences under Sections 354 and 497 of the Indian Penal Code. (c) A entices B, the wife of C, away from C, with intent to commit adultery with B, and then commits adultery with her. A may be separately charged with, and convicted of, offences under Sections 498 and 497 of the Indian Penal (d) A has in his possession several seals, knowing them to be counterfeit and intending to use them for the purpose of committing several forgeries punishable under Section 466 of the Indian Penal Code, A may be separately charged with, and convicted of, the possession of each seal under Section 473 of the Indian Penal Code. (e) With intent to cause injury to 5, A institutes a cri minal proceeding against him, knowing that there is no just or lawful ground for such proceeding ; and also falsely accuses B of having committed an offence, knowing that there is no just or lawful ground for such charges. A may be separately charged with, and convicted of, two offences under Section 211 of the Indian Penal Code. (f) A, with intent to cause injury to B, falsely accuses him of having committed an offence, knowing there is no just or lawful ground for such charge. On the trial, A gives false evidence against B, intending thereby to cause B to be convicted of a capital offence. A may be separately charged with, and convicted of offences under Sections 2 II and 194 of the Indian (g) A, with x others, commits the offences of rioting, grievous hurt and assaulting a public servant endeavouring in the discharge of his duty as such to suppress the riot. A may be separately charged with, and convicted of, offences under Sections 147, 325 and 152 of the Indian Penal Code. (h) A threatens B, C and D at the same time with injury to their persons with intent to cause alarm to them. A may be separately charged with, and convicted of, each of the three offences under Section 506 of the Indian The separate charges referred to in Illustrations (a) to (A) respectively may be tried at the same time. to sub – section (2)- (i) A wrongfully strikes B with a cane. A may be separately charged with, and convicted of, offences under Sections 352 and 323 of the Indian Penal Code. (j) Several stolen sacks of corn are made over to A and B, who know they are stolen property, for the purpose of concealing them. A and B thereupon voluntarily assist each other to conceal the sacks at the bottom of a grainpit. A and B may be separately charged with, and convicted of, offences under Sections 411 and 414 of the Indian Penal Code. (k) A exposes her child with the knowledge that she is thereby likely to cause its death. The child dies in consequence of such exposure. A may be separately charged with, and convicted of, offences under Sections 317 and 304 of the Indian Penal Code. (l) A dishonestly uses a forged document as genuine evidence, in order to convict B, a public servant, of an offence under Section 167 of the Indian Penal Cade. A may be separately charged with, and convicted of, offences under Sections 471 (read with 466) and 196 of the same Code. to sub – section (3) (m) A commits robbery on B, and in doing so voluntarily causes hurt to him. may be separately charged with. and convicted of, offences under Sections 323, 392 and 394 of the Indian Penal Code.
SECTION 236: Where it is doubtful what offence has been committed:
If a single act or series of acts is of such a nature that it is doubtful which of several offences the facts which can be proved will constitute, the accused may be charged with having committed all or any of such offences, and any number of such charges may be tried at once; or he may be charged in the alternative with having committed some one of the said offences. Notes The language in Section 236, Cr. P. Code, is general enough to justify alternative charges under Section 193, I. P. Code for contradictory statements whether in the same or different depositions. 1958 Jab LJ 836 : 1959 Cr LJ 197 : AIR 1959 Madh Pra 35. It ia not open to the appellate Magistrate to convict two accomplices under Section 323, Penal Code when they had already been convicted by the subordinate Magistrate under Section 324, read with Section 34. 1959 Nag LJ (Notes) 38. The provisions of Sections 236 and 237 are clear enough to enable a court to convict an accused person for an offence with which he had not been charged. 1960 Cr LJ 541 : AIR 1960 SC 400. Section 336 provides that where it is doubful which offence has been committed, the accused may becharged with having committed all or any of such offences which may be made out from a single act or series of acts, and Section 237 may be used for convicting the accused for an offence not charged for but which is made out from the same act or series of acts. 1964 ALJ (SC) 162 : 1964 AWR (SC) 201. As the prosecution led evidence only in support of the first charge and counsel for the appellants could not show how the accused were prejudiced by the alterative charge, a mere defect in the charge is no ground for setting aside the conviction. 1971 SCC (Cr) 426.
Illustrations (a) A is accused of an act which may amount to theft, or receiving stolen property, or criminal breach of trust or cheating. He may be charged with theft receiving stolen property, criminal breach of trust and cheating, or he may be charged with having committed theft, or receiving stolen property, or criminal breach of trust or cheating. (b) A states on oath before the Magistrate that he saw B hit C with a club. Before the Sessions Court A states on oath that B never hit C. A may be charged in the alternative and convicted of intentionally giving false evidence, although it cannot be proved which of these contradictory statements was false,
SECTION 237: When a person is charged with one offence, he can be convicted of another:
Notes If the Court had no doubt at the time of framing the charge it is not a case mentioned in Section 236 and Section 237 cannot be availed of at the time of conviction. The Court can however, convict the accused for any offence constituted by the facts mentioned in the charge even though not charged with it by invoking the aid of Section 225. 1960 Cr LJ 857 : AIR 1960 All 387. Sections 236 and 237 are in their very nature to be availed of by the trial Court and are inherently incapable of being availed of by an appellate or revisional Court. 1959 Ker LJ 527 : 1960 Cr LJ 596 : AIR 1960 Ker 153. There is no illegality committed if an accused person is convicted for an offence with which he he had not been charged. 1960 Cr LJ 541 : AIR 1960 SC 400. There is no warrant to avail of the answers of the accused under Section 342, Cr. P. Code for the purpose of the applicability of Section 237, Cr. P. Code, as these answers are not strictly evidence. 1959 Ker LT 554 : 1960 Cr LJ 596 : AIR 1960 Ker 153. In a case where the offence specified in the charge is not established, and also the facts admitted do not disclose any othere offence, it will not be proper for a court to indulge in surmise, to convict the accused under a different section of which he was not chaged. 25 Cut LT 200 Where the accused was tried under Section 215 for hoving delivered the stolen property to the owner after taking money, along with other accused for offence under Section 380, the joint trial was held proper as the accused under Section 2 15 was not in any way prejudiced by such joint trial. 1959 Cr LJ 1438: AIR 1959 Madh Pra 418. If there is no confusion in the mind of the accused in regard to the allegations and when he had tried to meet all the ingredients of the offence under a different section from that under which he was charged, he may be convicted under the different lection and such conviction is saved by Section 535,Cr P. Code. 1959 Jab LJ 166 : 1959 Cr LJ 47 : AIR 1959 Madh Pra 6.
(1) If, in the case mentioned in Section 236, the accused is charged with one offence, and it appears in evidence that he committed a different offence for which he might have been charged under the provisions of that section, he may be convicted of the offence which he is shown to have committed, although he was not charged with it. [ *****]
Illustration A is charged with therft. It appears that he committed the offence of criminal breach of trust, or that of receiving stolen goods. He may be convicted of criminal breach of trust or of receiving stolen goods (as the case may be), though he was not charged with such offence.
SECTION 238: When offence proved included in offence charged:
Notes Power to alter finding given under Section 423 is governed by provisions of Sections 237 and 238. 1960 Cr LJ 857 : AIR 1960 All 387. Where the accused intruded upon the privacy of a woman and made indecent gestures, both these acts would be a common ingredient both of Section 509 and Section 376, I.P. Code. Hence, a conviction under Section 376, read with Section 511 can be converted to lone under Section 509. 1961(1) Cr LJ 330 : AIR 1961 All 131. In the absence of a contract of entrustment the transaction involving parting of gold necklace, (amounted to nothing but a loan of the necklace,) and the refusal to return it was not punishable under Section 406, I. P. Code. The accused were guilty under Sections 403 and 420, I. P. C., and could be convicted under Section 238(1), Cr. P. Code. 1960 Cr LJ 857 : AIR 1960 All 387. A charge under Section 402, Penal Code, fully covers the ingredients of Sections 147 and 148. Therefore, when the accused were charged under Section 402, this could be conviction under Sections 147 and 148. AIR 1962 All 13.
(1) When a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete minor offence, and such combination is proved, but the remaining particulars are not proved, he may be convicted of the minor offence, though he was not charged with it
(2) When a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence, although he is not charged with it.
[(2-A.) When a person is charged with an offence, he may be convicted of an attempt to commit such offence although the attempt is not separately charged].
(3) Nothing in this section shall be deemed to authorise a conviction of any offence referred to in Section 198 or Section 199 when no complaint has been made as required by that section.
Illustrations (a) A is charged, under Section 407 of the Indian Penal Code, with criminal breach of trust in respect of property entrusted to him as a carrier. It appears, that he did commit criminal brearh of trust under Section 406 in respect of the property, but that it was not entrusted to him as a carrier. He may be convicted of criminal breach of trust under Section 406. (b) A is charged, under Section 325 of the Indian Penal Code, with causing grievous hurt. He proves that he acted on grave and sudden provocation, He may be convicted under Section 335 of that Code.
SECTION 239: What persons may be charged jointly:
[The following persons may be charged and tried together namely : Note Where there is a charge of criminal conspiracy the person charged with that offence should be tried jointly. 1958 All LJ 690 : 1959 Cr LJ 18 : AIR 1959 All 75. In the case of a trial of a principal officer along with that of an abettor in relation to more than one offence, the trial is illegal, not curable by the provisions of Section 537. 61 Punj LR 958 : 1959 Cr LJ 1106 : AIR 1959 Punj 448. Under Section 239(b) persons accused of several offences and persons accused of abetment thereof can be tried together at one trial. 1960 Cr LJ 410 : AIR 1960 SC 266. In a case of commission of different offences in the same series relating to conspiracy by dierent persons, there is no misjoinder of charges and accused. Even if there is any, it stands cured under Section 537. 1959 Cr LJ 1172 : AIR 1959 Ker 311. In a case of conspiracy, if specific offences are committed in pursuance ef the said conspiracy, all persons who are parties to that conspiracy are also concerned in the specific offences thus committed can be lawfully tried jointly at the same trial. 1960 CrLJ 1013: Courts should carefully examine the nature of the accusation, but if they are satisfied that prima fccie 1the accusation made shows that the several persons are charged of different offences and that the said offences prima facis appear to have been committed in the course of the same transaction, their joint trial can should be ordered. 1960 CrLJ 1013: AIR 1960 SC 661.
(a) persons accused of the same offence committed in the course of the same transaction ;
(b) persons accused of an offence and persons accused of abetment, or of an attempt to commit such offence ;
(c) persons accused of more than one offence of the same kind, within the meaning of Section 234 committed by them jointly within the period of twelve months;
(d) persons accused of different offences committed in the course of the same transaction;
(e) persons accused of an offence which includes theft, extortion, or criminal misappropriation, and persons accused of receiving or retaining, or assisting in the disposal or concealment of) property possession of which is alleged to have been transferred by any such offence committed by the first-named persons, or of abetment of or attempting to commit any such last-named offence.
(f) persons accused of offences under Sections 411 and 414 of the Indian Penal Code or either of those sections in respect of stolen property the possession of which has been transferred by one offence ; and
(g) persons accused of any offence under Chapter XII of the Indian Penal Code relating to counterfeit coin, and persons accused of any other offence under the said Chapter relating to the same coin, or of abetment of or attempting to commit any such offence. and the provisions contained in the former part of this Chapter shall so far as may be, apply to all such charges].
SECTION 240: Withdrawal of remaining charges on conviction on one of several charges:
When a charge containing more heads than one is framed against the same person, and when a conviction has been had on one or more of them, the complainant, or the officer conducting the prosecution, may, with the consent of the Court, withdraw the remaining charge or charges, or the Court of its own accord may stay the inquiry into, or trial of, such charge or chages. Such withdrawal shall have the effect of an acquittal on such charge or charges, unless the conviction be set aside, in which case the said Gourt (subject to the order of the Gourt setting aside the convition) may proceed with the inquiry into or trial of the charges so withdrawn. Notes The use of the words ‘withdrawal’ and ‘stay’ in Section 240 indicates that where the court does not proceed with the remrining charges, it does not amount to a withdrawal and therefore such stay cannot operate as acquittal and can be brought out of cold storage again. The word ‘withdrawal on the other hand connotes a dropping of the charge. 1959 All LJ 164 : 1959 Cr LJ 1265 : AIR 1959 All 703.
CHAPTER 20: OF THE TRIAL OF SUMMONS-GASES BY MAGISTRATES:
SECTION 241: Procedure in summons-cases:
The following procedure shall be observed by Magistrates in the trial of summons-cases.
SECTION 242: Substance of accusation to be stated:
When 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 if he has any cause to show why he should not be convicted; but it shall not be necessary to frame a formal charge. Notes The Magistrate while conducting summary trials should not discard the salutary provisions of Section 242 in haste, which are meant to safegaurd the interest of the accused, 1960 Cr LJ 1085 : AIR 1960 J and K 108. Non-compliance with the provisions of Section 242, Cr. P. Code is a mere irregulaity curable by Section 537, Cr. P. Code. 24 Cut LT 493 : 1959 Cr LJ 886 : AIR 1959 Ori 121. The Magistrate if he does not convict the accused on his plea of guilty cannot acquit him without taking evidence, as the order of acquittal involves the mode of trial. 1960 MP LJ (Notes) 6.
SECTION 243: Conviction on admission of truth of accusation:
If the accused admits that he has committed the offence of which he is accused, his admission shall be recorded as nearly as possible in the words used by him; and, if he shows no sufficient cause why he should not be convicted, the Magistrate [may convict] him acccordingly. Notes Where the admission of the accused is not recorded as required by Section 243, the superior court is deprived of the chances of forming its own independent conclusions which might result in serious miscarriage of justice. Hence provisions in Sections 242 and 243 are very salutary and their non-observance will vitiate the trial and conviction. ILR (1958) 10 Ass 127 :1961(1) Cr-LJ227: AIR 1961 Ass 19: AIR 1966 SC 22 : (1965) 2 SCJ 476. In a summary trial plea of guilty should be recorded in words of accured. 1959 Nag LJ (Notes) 116. The plea of guilty should as nearly as possible, be recorded in the accused’s own language in order to prevent any mistake or misapprehension. Interpretation of the accused’s plea of guilty by the Bench clerk to the court is not sufficient compliance with the requirement of Section 243-Section 362 (2-A) is not applicable. AIR 1966 SC 22 : 1966 Cal LJ 66 : (1965)2 SCJ 476. Reliance on Sections 225 and 537 cannot negative the objection that in reality there was no admission of guilt and that therefore no conviction could proceed under Section 243, Cr. P. Code 1958 Ker LT 1136 : 1959 Cr LJ 1074 : AIR 1959 Ker 248. Section 243 being a provision of a special character takes precedence and overrides the general provisions of Section 262 (2-A). AIR 1966 SC 22 : (1965) 2 SCJ 476. The section empowers the Magistrate to convict the accused where he admits the commission of offence and he does not show cause against bis conviction, but where the Magistrate convicts without affording opportunity to show cause, the conviction is liable to besset aside. 1961 AWR (HC) 141.
SECTION 244: Procedure when no such admission is made:
Notes It is true that the court can put any question to the witness at any stage of the examination this power should not be carried to the extent of the Court itself examining the witness. (1957) 23 Cut LT 449. The power of Magistrate to issue summons to the witness whose name is not in the list prepared under Section 204 (1-A), see Section 204 (1.A). 1960 Cr LJ 865 (1) : AIR 1960 All 394. The Magistrate not committing the accused on his plea of guilty must record evidence. 1960 MPLJ (Notes) 6. Witness not mentioned in list filed under Section 204 (1-A), there is nothing illegal to examine them. See section 204 (1-A) supra. 1961 (1) Cr LJ 314: AIR 1961 Raj 42. f Where the Magistrate hears the complaint and also takes all such evidence as is produced by the complainant and then acquits the accused, the acquittal cannot be interfered with in appeal. 1959 Ker LT 505.
(1) [If the Magistrate does not convict the accused under the preceding section or] if the accused does not make such admission, the Magistrate shall proceed to hear the complainant (if any), 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 : [Provided that the Magistrate shall not be bound to hear any person as complainant in any case in which the complaint has been made by a Court].
(2) The Magistrate may, if he thinks fit, on the application of the complainant or accused, issue [a summons to 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 his reasonable expenses, incurred in attending for the purposes of the trial, be deposited in Court.
SECTION 245: Acquittal:
Notes Of course the non-examination of the investigating officer is a circumstance which may be taken into consideration by the court, but does not per se furnish a ground for acquittal. 1960 Ker LJ 360 : 1960 Cr LJ 1469 : AIR 1960 Ker 358.
(1) If the Magistrate upon taking the evidence referred to in Section 244 and such further evidence (if any), as he may, of his own motion, cause to be produced, and (if he thinks fit) examining the accused, finds the accused not guilty, he shall record an order of acquittal.
Sentence.- [(2) Where the Magistrate does not proceed in accordance with the provisions of Section 349 or Section 562, he shall, if he finds the accused guilty, pass sentence upon him according to law],
SECTION 246: Finding not limited by complaint or summons:
A Magitrate may, under Section 243 or Section 245, convict the accused of any offence triable under this Chapter which from the facts admitted or proved he appears to have committed, whatever may be the nature of the complaint or summons.
SECTION 247: Non-appearance of complainant:
If the summons has been issued on complaint, and upon 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, notwithstanding anything hereinbefore contained, acquit the accused, unless for some reason he thinks proper to adjourn the hearing of the case to some other day: [Provided that where the Magistrate is of opinion that the personal attendance of the complaint is not necessary, the Magistrate may dispense with his attendance, and proceed with the case], Notes It cannot be held within any reason that a date on which nothing can be done in the case, is also a date to which the ‘hearing has been adjourned’. 1960 All LJ 312: 1960 Cr LJ 1058 : AIR 1960 All 507. No revision application lies to the District Magistrate from an order of acquittal of accused passed under Section 247, as by reason of amendment of Section 417, Cr. P. Code, a right of appeal has been given to * complainant. 1960 Cr LJ 552 : AIR 1960 All 196. For all cases, where the complainant makes appearance on the day of hearing during the court hours, the Magistrate should not take the responsibility to throw out his case and acquit the accused. 1960 Cr LJ 457 : AIR 1960 Andh Par 193. A natural meaning should be given to the word “day” in a phrase “upon the day appointed for the appearance” occurring in Section 247. The word ‘day’ meant the whole of the working hours of the day and not the moment when the case is called. That the Magistrates have been abusing the provisions of Section 247, Cr. P. Code, is a truism which cannot be controverted. 1960 CrLJ 552: AIR 1960 All 296. It is the duty of the complainant to make inquiries in the court as to the date of hearing of the case and the Magistrate is not bound to send a reply to his letter enquiring about the date. 1959 Ker LJ 557 : 1959 Cr LJ 1322 : AIR 1959 Ker 350. Without saying that the court in every case must wait for the whole day before passing an order of dismissal, it must be said that the court will also not be justified in dismusing the complaint immediately upon calling the case and the complainant not appearing. Even on being informed by counsel that the case had been stayed by Sessions Judge, the Magistrate acted unreasonably in dismissing the complaint in haste resulting in injustice and the order was not set aside. 1960 All LJ 313: 1960 Cr LJ 1058: AIR 1960 All 507. Before acquitting the accused on the default of the complainant, the Magistrate is bound to see whether the personal attendance of the complainant is necessary on the date. 1959 Raj LW 376: 1959 Cr LJ 656: AIR 1959 Raj 100; (1961)1 Cr LJ 305: AIR 1961 Punj 77. Where a complaint has been filed by a public servant and his role is merely of a formal nature, his presence on each hearing is wholly unnecessary and waste of public time and money. The dismissal of the complaint and acquittal merely on the ground of non-appearance of the complainant would defeat the ends of justice. In order to avoid this unjust result the case may be adjourned to another date under the provisions of the latter part of Section 247 or better still the presence of the complainant may be excused under the latter part of the proviso. 1963 ALJ 989. In the event of a conflict between Section 247, Cr. P. Code and Section 14(2), Bombay Pleaders’ Act, the latter will have to give way to the former as it cannot be whittled down by a provision intended only for the convenience of an indisposed pleader and not to exempt the complainant from appearance. 1959 Mad LJ (Cr) 893: 1960 CrLJ 261 (1): AIR 1960 May 39. The right of acquittal available to the accused under Section 217, C.P. Code in absence of the complainant, cannot be allowed to be whittled down by the provision of sub-section (2) of Section 14 of Bombay Pleaders’ Act, 1920 intended only for the convenience of an indisposed pleader. 1959 MLJ (Cr) 893. As the matter was not adjourned for hearing the complainant he was not bound to be prerent on the adjourned date, and the order of dismissal of the complaint and acquittal of the accused was not justified. 1960 Nag LJ (Notes) 16. Where the complaint has been filed by or under the signature of a particular public servant, because the law so required, it is not necessary that the public servant in all cases must be personally acquainted with the facts of the case, his presence, therefore, on the hearings would be wholly unnecessary and waste of public time. The dismissal of such a complaint on the ground of non-appearance of the complainant would defeat the ends of justice. 1964 ALJ 598. Actually trial begins when Magistrate takes cognizance of offence and issues process, where, the accused has been acquitted under Section 247 of the Code, he must be deemed to have been ‘duly’ tried as required by Section 403(1), Cr. P. C. Such acquittal is a bar to a fresh trail on same facts for the same offence. 1961 AWR (HC) 105. See also Section 208. AIR 1967 SC 983 : 1967 Cr LJ 943.
SECTION 248: Withdrawal of complaint:
If a complainant, at any time before a final order is passed in any case under this Chapter, satisfies the Magistrate that there are sufficient grounds for permitting him to withdraw his complaint, the Magistrate may permit him to withdraw the same, and shall thereupon acquit the accused.
SECTION 249: Power to stop proceedings when no complaint:
In any case instituted otherwise than upon complaint, a Presidency Magistrate, a Magistrate of the first class, or with the previous sanction of the District Magistrate, any other Magistrate, may for reasons to be recorded by him, stop the proceedings at any stage without pronouncing any judgment either of acquittal or conviction, and may thereupon release the accused. State Amendments GUJARAT Same as that of Maharashtra ( 1 ). (1) In Section 249 for the words “or with the previous sanction of the District Magistrate any other Magistrate” subtitute the words “or any other Judicial Magistrate specially empowered in this behalf by the State Government in consultation with the High Court”. (2) After the re-organization of the State of Bombay in 1956, the amendment made in Section 249 by the above-mentioned Bombay Act is extended to the newly added areas of Hyderabad, Kutch and Saurashtra and the region of Vidarbha as from 1-9-1959 by Bombay Act XCVII of 1958. MYSORE In Section 249, for the words “a Presidency Magistrate, a Magistrate of the first class or with the previous sanction of the District Magistrate, any other Magistrate” substitute the words “a Judicial Magistrate”. Mys. Act XIII of 1965, Section 37. PUNJAB, HARYANA AND CHANDIGARH In Section 249 for the words “a Presidency Magistrate, Magistrate of the first class, or with the previous sanction of the District Magistrate, any other Magistrate”, substitute the words a “Judicial Magistrate of the first class, or, with the previous sanction of the Chief Judicial Magistrate, any Judicial Magistrate of the second class”. RAJASTHAN Same as that of Maharashtra (1). UNION TERRITORIES (except Chandigarh) Same as that of Punjab. WEST BENGAL In its application to the State of West Bengal, in Section 249, for the words “a Magistrate of the first class, or with the previous sanction of the District Magistrate, any other Magistrate”, substitute the words “a Judicial Magistrate of the first class) or with the previqus sanction of the Sessions Judge, any other Judicial Magistrate”. Notes Section 247 is applicable only to cases instituted on complaint and not to cases chargesheeted by the police. In the later case, the police prosecutor and the complainant are absent and the magistrate acquits the accused under Section 248, the order is wrong and at best the order can be treated as one under Section 249 of stoppage of proceedings. AIR 1961 Tri 12: (1961) 1 Cr LJ 441. Where not even a.prima facie case is under Section 447, I. P. C. the Magistrate is perfectly justified in stopping the proceedings under Section 249, Cr. P. Code, without first following the procedure under Sections 242 to 244, Cr. P. Code, and in releasing the accused without hearing him and the complainant. 62 Bom LR 499 : 1960 Cr LJ 1425 : AIR 1960 Bom 481.
SECTION 250: False, frivolous or vexations accusations:
State Amendment UNION TERRITORIES (except Chandigarh).-In sub-section (3), omit the words “or third”. Note Unless it can be said that there is always only one default whether compensation if payable to one person or to more than one person, it cannot be held that in one case, or upon one complainant imprisonment in default exceeding 30 days cannot be inflicted. Hence for such default of payment, the complainant can be ordered to undergo imprisonment for 30 days. 1959 All LJ.
[(1) If in any case instituted upon complaint or upon information given to a police officer or to a Magistrate, one or more peasons is or are accused before a Magistrte of any offence triable by a Magistrate, and the Magistrate by whom the case is heard discharges or acquits all or any of the accused, and is of opinion that the accusation against them or any of them was false and either frivolous or vexatious, the Magistrate may, by his order of discharge or acquittal, if the person upon whose complaint or information the accusation was made is present, call upon him forthwith to show cause why he should not pay compensation to such accused or to each or any of such accused when there are more than one, or, if such person is not preawnr direct the issue of a summons to him to appear and show cause as aforesaid.
(2) The Magistrate shall record and consider any cause which such complainant or informant may show and if he is satisfied that the accusation was false and either frivolous or vexatious may, for reasons to be recorded, direct that compensation to such amount not exceeding [one-half of the amount of fine he is empowered to impose], as he may determine, be paid by such complainant or informant to the accused or to each or any of them.
(2-A) The Magistrate may, by the order directing payment of the compensation under sub-section (2), further order that, in default of payment, the person ordered to pay such compensation shall suffer simple imprisonment for a period not exceeding thirty days.
(2-B) When any person is imprisoned under sub-section (2-A), the provisions of Sections 68 and 69 of the Indian Penal Code shall, so far as may be, apply.
(2-C) No person who has been directed to pay compensation under this section shall, by reason of such order, be exempted from any civil or criminal liability in respect of the complaint made or information given by him: Provided that any amount paid to an accused person under this section shall be taken into account in awarding compensation to such person in any subswquent civil suit relating to the same matter.
(3) A complainant or informant who has been ordered under [sub-section (2)] by a Magistrate of the second or third class to pay compensation [ or has been so ordered by any other Magistrate to pay compensation exceeding fifty rupees] may appeal from the order, insofar as the order relates to the payment of the compensation, as if such complainant or informant had been convicted on a trial held by such Magistrate.
(4) When an order for payment of compensation to an accused person is made in a case which is subject to appeal under sub-section (3), the compensation shall not be paid to him before the period allowed for the presentation of the appeal has elapsed, or, if an appeal is presented, before the appeal has been decided [and, where such order is made in a case which is not so subject to appeal, the compensation shall not be paid before the expiration of one month from the date of the order]. [* * * * * * *]
CHAPTER 21: OF THE TRIAL OF WARRANT CASES BY MAGISTRATES:
SECTION 251: Procedure in warrant cases:
[In the trial of warrant-cases by Magistrates, the Magistrate shall,-
(a) in any case instituted on a police report, follow the procedure specified in Section 251-A ; and
(b) in any other case, follow the procedure specified in the othar provisions of this Chapter.
SECTION 251A: Procedure to be adopted in cases instituted on police report:
State Amendment UTTAR PRADESH In sub-section (6) of Section 251-A- (a) for the full-stop at the end, substitute a semi-colon; and (b) after the semi-colon, add the following- “and shall summon the witnesses, documents or things specified in any application, made on behalf of the prosecution before the said date, for summoning the same, unless for reasons to be recorded, he deems it unnecessary to summon all or any of them.” In a case under Section 325, Penal Code, for dislodging a complaint the Magistrate must enquire into the matter and this he can do only as a warrant case and not as summons case. 1959 Cr LJ26 : AIR 1959 Andh Pra 50. Where copy of sanction for prosecution was not supplied to accused, although there was statement by prosecution that copies of documents referred to in Section 173 had been furnished, conviction of accused on his plea of guilty cannot be sustained. 1960KerLJ688: 1960 Cr LJ 1602 : AIR 1960 Ker 391. As far as the accused is concerned even if the procedure indicated in Section 251-A is followed in a case more properly coming under Section 252, accused is not prejudiced thereby the difference being only of the manner to arrive at the prima facie case. (1961)1 Cr LT 92 : AIR. 1961 Madh Pra 13. Section 251-A in no way contemplates the necessity of examining the prosecution witnesses beefore framing a charge or before the discharge of the accused persons. 1958 Cr LT 1480 : AIR 1958 Cal 709. If the Magistrate takes cognizance of non-cognizable offence on the basis of a report submitted by a police officer who started investigations without an order of the Magistrate, the trial should be held under the old procedure and not under the new procedure contained in Section 251-A of the Cr. P. Code. 1959 Cr LJ 1163: AIR 1958 Cal 640. It is not improper for a Magistrate to discharge the accused under Section 251-A. prosecuted under Section 409, Penal Code without examining prosecution witnesses, to set up the defence that he was allowed time to pay money retained and the Magistrate believed his statement on the basis of an entry in the police diary. 1959 MPLJ (Notes) 91. An application for further cross-examination of prosecution witness can be rejected by the court if it is satisfied that the application is made merely to cause vexation or delay or to defeat the ends of justice. 1960 MPLJ (Notes) 113. Even if the names of some witnesses are omitted in the charge-sheet it is always open to the prosecution to examine them at a later stage provided adequate notice is given to the accused, copies of their statements are supplied and he is given an adequate opportunity to cross-examine them. 24 Cut LT 374. A Magistrate after making an order of discharge under Section 251 -A(2) in respect of a charge for offence triable as a warrant case can still proceed to try the accused for another offence disclosed by the police report and triable as a summons case for which a fresh complaint is not necessary. (1960) 1 Ker LR 588: AIR 1960 SC 810. Any irregularity committed by the Magistrate in acquitting the accused under Section 251-A instead of under Section 258, but not resulting in miscarriage of justice is curable under Section 537. 1959 Cr LJ 1141: AIR 1959 Andh Pra 530. In a warrant case instituted on a police report, the new Magistrate dismissing the case under Section 253 discharged the accused. It was held that the Magistrate acted in total disregard of the mandatory provisions of Cr. P. Code. He should have followed procedure prescribed by Section 251-A. 1959 Cr LJ 344: 1959 Mad LJ (Cr) 409: 1959 Mys 54. The trial of a warrant case should be instituted on a police report under the procedure as laid down in Section 251-A, and if otherwise instituted, procedure as prescribed in Section 252 should be adhered to and any infraction against these rules of procedure in the cases of a trial will amount to an illegality sufficient to vitiate the trial. 1959 Cr LJ 1359: 1959 Raj LW 418 : AIR 1959 Raj 266. Whether report by Excise Officer under Bihar and Orissa Excise Act amount to police report within the meaning of Section 251-A, Cr. P. Code is still not free from difficulty, 26 Cut LJ 647: AIR 1961 Ori 64. Where in a case evidence was recorded prior to date of commencement of Amendment Act, retrial is to be governed by procedure as it stood before amendment. Section 251-A has no retrospective effect. 1960 Mad LJ (Cr) 598: (1961) I Cr LJ 398: AIR 1961 Mys 69. Section 251-A vests ample power in the Magistrate to frame charges on a perusal of the papers and without examining witnesses in a case which has been rightly started on the police challan. 1959 Cr LJ 1408: AIR 1959 Ass 231. In a warrant case instituted on police report, accused was discharged under Section 251-A. The Sessions Judge is not empowered under Section 436 to remand the case of further enquiry which order amounts to an order for a re-trial of the case and which order to make is beyond his jurisdiction. The only course available to him is to report the matter under Section 438 for the orders of the High Court. (1960) I Andh WR 76. A statement recorded at the stage of Section 251-A is as much possessed of evidentiary value as the statements recorded latter on under Section 342 after the evidence is recorded. 1959 Cr LJ 924: AIR 1959 All 483. Order of acquittal which is not based on merit but on erroneous ground of lack of jurisdiction in court is illegal. It is acquittal for purposes of Section 403. AIR 1966 SC 69: 1966 Cr LJ 75. Section 251-A(6) does not enjoin upon the Magistrate to compel the attendance of any witness not applied for. 1960 Cr LJ 468: AIR 1960 Cal 263. The Magistrate is not bound to go on adjourning the case until all the witnesses mtioned in the police report are examined. 1959 Ker LT 840: 1959 MLJ (Cr) 814. The accused has a right to cross-examine any prosecution witness even after charge and he has entered upon his defence by virtue of Section 251-A(9). 1958 Nag LJ 19 : 1959 Cr LJ 1062 : AIR 1959 Bom 369. If the Magistrate makes use of inadmissible evidence in convicting the accused, his order of conviction is perverse and liable to be interfered with for the reason of disregad of the provision of Section 251-A(13). 1959 CrLJ 1366: AIR 1959 Raj 278.
(1) When, in any case instituted on a police report) the accused appears or is brought before a Magistrate at the commencement of the trial, such Magistrate shall satisfy himself that the documents referred to in Section 173 have been furnished to the accused, and if he finds that the accused has not been furnished with such documents or any of them, he shall cause them to be so furnished,
(2) If, upon consideration of all the documents referred to in Section 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge him.
(3) If, upon such documents being considered, such examination, if any, being made and the prosecution and the accused being given an opportunity of being heard, 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.
(4) The charge shall then be read and explained to the accused and he shall be asked whether he is guilty or claims to be tried.
(5) If the accused pleads guilty, the Magistrate shall record the plea and may, in his discretion, convict him thereon.
(6) If the accused refuses to plead, or does not plead, or claims to be tried, the Magistrate shall fix a date for the examination of witnesses.
(7) 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.
(8) 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.
(9) 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 until 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. 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 after the charge is framed, the attendance of such witness shall not be compelled under this section, unless the Magistrate is satisfied that it is necessary for the purposes of justice.
(10) The Magistrate may, before summoning any witness on such application under sub-section (9), require that his reasonable expenses incurred in attending for the purpose of the trial be deposited in Court.
(11) If, in any case under this section in which a charge has been framed, the Magistrate finds the accused not guilty, he shall record an order of acquittal.
(12) Where in any case under this section, the Magistrate does not proceed in accordance with the provisions of Section 349 or Section 562, he shall, if he finds the accused guilty, pass sentence upon [him] according to law.
(13) In a case where a previous conviction is charged under the provisions of Section 221, sub-section (7), 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 under sub-section (5) or sub-section (12), take evidence in respect of the alleged previous conviction, and shall record a finding thereon.
SECTION 252: Evidence for prosecution:
Notes The trial of a warrant case instituted otherwise than on a police report under the procedure laid down in Section 251-A instead of that laid down in Section 252 and the next following section of the Code is a mis-trial amounting to an illegality sufficient to vitiate the trial. 1959 Cr LJ 1359 : AIR 1959 Raj 266. Criminal Procedure Code no where contains any bar precluding the prosecution from producing more witnesses than mentioned in the list already furnished. 1960 Cr LJ 347: AIR 1960 J and K 44. For examination of material witnesses, see Section 208 supra. 1960 Cr LJ 480: AIR 1960 Madh Pra 102. The evidence given by a witness in examination-in-chief before framing of charge in a warrant case is not admissible if the witness could not be produced for cross-examination. 1959 Cr LJ 1310: AIR 1959 Cal 677. The Magistrate should examine any additional witness even though his name has not been cited in the complainant’s list filed by him under Section 252 (2) provided the accused have not been called upon to enter upon their defence. 1959 Mad LJ (Cr) 341: 1959 Cr LJ 1l96: AIR 1959 Mys 238. Bounden duty of the prosecution to examine or material witness particularly when no allegation of his being hostile is made. Not only does an adverse inference arise against the prosecution case from his non-production in view of illustration (g) to Section 114, Indian Evidence Act but the circumstance of his being withheld from the Court would cast a serious reflection on the fairness of the trial. Habeeb Mohammed v .State of Hyderabad, AIR 1954 Sc 51 ; Darya Singh v. State of Punjab, (1964) 38 SCR 397: AIR 1965 SC 328; Karnesh Kumar v. State of U. P., AIR 1968 SC 1402 at 1407.
(1) [ln any case instituted otherwise on a police report, when the accused appears] or is brought before a Magitrate, such Magistrate shall proceed to hear the complainant (if any) and take all such evidence as may be produced in support of the prosecution : [Provided that the Magistrate shall not be bound to hear any person as complainant in any case in which the complaint has been made by a Court.]
(2) The Magistrate shall ascertain, from the complainant or otherwise the names of any persons likely to be acquainted with the facts of the case and to be able to give evidence for the prosecution, and shall summon to give evidence before himself such of them as he thinks necessary.
SECTION 253: Discharge of accused:
Note The section is very wide and the Court at the stage at which an accused person may be discharged can do so without any restriction. The Court may discharge a person at any stag either prior to the stage of Section 252 (1) or even after part of the evidence has been recorded under that sub-section. 1963 ALJ 919. For ” express order of discharge whether centemplated” see Section 209. AIR 1967 SC 1156 : 1967 Cr LJ 1076.
(1) If, upon taking all the evidence referred to in Section 252, and making such examination (if any) of the accused as the Magistrate thinks necessary, he finds 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.
SECTION 254: Charge to be framed when offence appears proved:
If, when such evidence and examination have been taken and made) or at an 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.
SECTION 255: Plea:
(1) The charge shall then be read and explained to the accused, and he shall be asked whether he is guilty or has any defence to make.
(2) If the accused pleads guilty) the Magistrate shall record the plea, and may in his discretion convict him thereon.
SECTION 255A: Procedure in case of previous convictions:
[In a case where a previous conviction is charged under the provisions of Section 221, sub-section (7), 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 under Section 255, sub-section (2), or Section 258 take evidence in respect of the alleged previous conviction, and shall record a finding thereon.]
SECTION 256: Defence:
Notes After the insertion of Section 204 (I-A), Section 256 has to be read along with Section 252, and therefore, in cases instituted otherwise than on a police report, the complainant is restricted to the examination of witnesses whose names are given in the list under Section 204 (1-A). 62 Bom LR 494 : 1960 Cr LJ 1559: AIR 1960 Bom 513. In a warrant case after the charge is framed it is the duty of the Magistrate under Section 256 to recall the prosecution witnesses on the next date so as to enable the accused to cross-examine them. 1960 Cr LJ 1358: AIR 1960 Ori l85. A Session Judge has power to add or alter the charge but he cannot substitute a new charge. He has no power to strike off the charges framed by Magistrate. 1961 ALJ Filing of written statement by accused person need not always be deprecated-AIR 1965 SC 97 : 1966 Cr LJ 82. Report of public analyst-Application of accused to summon public analyst for cross-examination- The Court may reject the prayer for good and sufficient reasons. Ram Dayal v. Municipal Corporation of Delhi, (1969) 3 SCC 35 : AIR 1970 SC 366. Power of court to decline to summon a witness after recording reasons therefor. -It was open to the Trial Court to decline to summon a witness after recording its reasons for the refusal. There is no legal infirmity made out and certainly no failure of justice is shown from the record- Kishan v. State of Maharashtra, (1970) 3 SCC 35 : 1970 SCC (Cr) 385.
(1) If the accused refuses to plead, or does not plead or claims to be tried, 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. 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. The evidence of any remaining witnesses for the prosecution shall next be taken, and after cross-examination and reexamination (if any), they also shall be discharged. The accused shall then be called upon to enter upon his defence and produce his evidence.
(2) If the accused puts in any written statement, the Magistrate shall file it with the record.
SECTION 257: Process for compelling production of evidence at instance of accused:
(1) 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. 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 after the charge is framed, the attendance of such witness shall not be compelled under this section, unless the Magistrate is satisfied that it is necessary for the purposes of justice.
(2) The Magistrate may, before summoning any witness on such application. require that his reasonable expenses incurred in attending for the purposes of the trial be deposited in Court.
SECTION 258: Acquittal:
Notes The proposition of law that after a charge is framed, a criminal case can only wind up either in conviction or in acquittal, is an over-statement as the Court can make several other orders as for example an order of re-trial can be made. 1960 Cr LJ 278: AIR 1960 Raj 44. Section 419, Cr. P. C. does not prohibit a joint appeal from an order of acquittal. Nor are Sections 258, 410 and 423, Cr. P. C. a bar- State of Gujarat v. Ram Prakashe P. Puri, (1969) 3 SCC 156.
(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.
Conviction.- [(2) Where in any case under this chapter the Magisstrate does not proceed in accordance with the provisions of Section 349 or Section 562, he shall if he finds the accused guilty, pass sentence upon him according to law.]
SECTION 259: Absence of complainant:
When the proceedings have been instiuted upon complaint, and upon 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. Note See Section 208. AIR 1967 SC 983: 1967 Cr LJ 943.
CHAPTER 22: OF SUMMARY TRIALS:
SECTION 260: Power to try summarily:
State Amendments GUJARAT Same as that of Maharashtra (1), words “Greater Bombay”, substitute “except for the city of Ahmedabad”. KERALA In Section 260(1) (m) for the words and figures “Section 20 of the Cattle-Trespass Act, 1871” substitute the words and figures “Section 19 of the Kerala Cattle Trespass Act, 1961”. MAHARASHTRA (1) In sub-section (1) of Section 260- (i) delete the first clause (a), namely, “(a) the District Magistrate” ; (ii) in clauses (b) and (c) after the words “State Government” insert the words in consultation with the High Court”. (2) After the reorganisation of the State of Bombay in 1956, the amendments made in Section 260 by the above-mentioned Bombay Act are extended to the newly added areas of Hyderabad. Kutch and Saurashtra and the region of Vidarbha as from 1-9-1959 by Bombay Act XCVII of 1958. (3) In its application to the State of Bombay as reorganised in 1956, in sub-section (1) of Section 260 insert before the first clause (b) the following namely, “(a) any Presidency Magistrate”. In Section 260(1), omit the clause “(a) the District Magsitrate”. PUNJAB, HARYANA AND CHANDIGARH In Section 260(1) (a), (b) and (c) substitute: “(a) the Chief Judicial Magistrate, (b) any Judicial Magistrate of the first class specially empowered in this behalf by the High Court, and (c) any Bench of Judicial Magistrates invested with the powers of a Judicial Magiltrate of the first class and especially empowered in this behalf by the High Court,” RAJASTHAN ( Abu Area) Same as that of Maharashtra (1). UNION TERRITORIES (except Chandigrah) In Section 260(1) (a), (b) and (c), substitute the following- “(a) the Chief Judicial Magistrate, (b) any Judicial Magistrate of the first class specially empowered in this behalf by the State Government, in consultation with the High Court, and (c) any Bench of Judicial Magistrates invested with the powers of a Judicial Magistrate of the first class and specially empowered in this behalf by the State Government in consultation with the High Court.” WEST BENGAL (1) In sub-section (1), substitute the following for clauses (a), (b) and (c), namely- “(a) the Sub-divisional Judicial Magistrate, (b) and (c) : Same as that of Union territories. (2) in the proviso to sub-section (1), for the word “Magistrate”, substitute the words Judicial Magistrate”; and (3) in sub-section (2),- (i) for the word “Magistrate”, whenever it occurs, substitute the words “Judicial Magistrate”; and (ii) for the word “Bench” wherever it occurs, substitute the words “Bench of Judicial Magistrates”. Notes In a summary trial, the plea of guilty of each accused person must be recorded separately and in his own words. 1959 LJ (Notes) 116. It cannot be urged that a Magistrate appointed under Section 187, M. B. Municipalities Act, cannot be given summary powers under Section 261 (b) unless he has exercised magisterial powers already for ten years as required by Section 30, Cr. P. Code 1960 Cr LJ 82. AIR 1960 M P 20. Section 260 has nothing to do with the competence of the Magistrate to try a particular class of cases as contemplated by Section 30, Cr. P. Code. Magistrate appointed under Section 187, M. B. Municipalities Act, cannot be given summary powers under Section 261 (b). 1960 Cr LJ 82: AIR 1960 Madh Pra 20. Section 260 is not enacted to derogate from the accused his valuable right of crossexamination even in a summary trial and hence it does not infringe the equal protection clause of Article 14. ILR 37 Pat 1183 : 1959 Cr LJ 215: AIR 1959 Pat 46. An offence under Section 506, Penal Code can be tried summarily. The second clause (a) of Section 260 (1) embodies a general rule which can only operate if there is no specific provision as is contained in the suceeding clause (j) which specifically refers to the offence under Section 506, Penal Code. 1959 Nag LJ (Notes) 6.
(1) Notwithstanding anything contained in this Code- (a) the District Magistrate, (b) any Magistrate of the first class specially empowered in this behalf by the State Government, and (c) any Bench of Magistrates invested with the powers of a Magistrate of the first class and especially empowered in this behalf by the State Government, may, if he or they think fit, try in a summary way all or any of the following , offences- (a) offences not punishable with death, [imprisonment for life] or imprisonment for a term exceeding six months ; (b) offences relating to weights and measure under Sections 264, 265 and 266 of the Indian Penal Code; (c) hurt, under Section 323 of the same Code; (d) theft, under Sections 379, 380 or 381 of the same Gode, where the value of the property stolen does not exceed [two hundred rupees]; dishonest misappropriation of property under Section 403 of the same Code, where the value of the property misappropriated; does not exceed [two hundred rupees] ; (f) receiving or retaining stolen property under Section 411 of the same Gode, where the value of such property does not exceed [two hundred rupees]; (g) assisting in the concealment or disposal of stolen property, under. Section 414 of the same Code, where the value of such property does not exceed [two hundred rupees] ; (h) mischief, under Section 427 of the same Gode; (i) house-trespass, under Section 448, and offences under Section 451, [453, 454,], 456 and 457 of the same Gode; (J) insult with intent to provoke a breach of the peace, under Section 504, and criminal intimidation, under Section 506 of the, same Code; (k) abetment of any of the foregoing offences ; (1) an attempt to commit any of the foregoing offences, when such attempt is an offence; (m) offences under Section 20 of the Cattle-Trespass Act, 1871 : Provided that no case in which a Magistrate exercises the special powers conferred by Section 34 shall be tried in a summary way.
(2) When in the course of a summary trial it appears to the Magistrate or Bench that the case is one which is of a character which renders it undesirable that it should be tried summarily, the Magistrate or Bench shall recall any witnesses who may have been examined and proceed to re-hear the case in manner provided by this Gode.
SECTION 261: Power to invest Bench of Magistrates invested with less power:
The State Government may confer on any Bench of Magistrates invested with the powers of a Magistrate of the second or third class power to try summarily all or any of the following offences- State Amendments GUJARAT Same as that of Maharastra (1). MAHARASHTRA Same as that under Section 260. (2) After the reorganization of the State of Bombay in 1956, the amendment made in Section 261 by the above mentioned Bombay Act is extended to the newly added areas of Hyderabad, Kutch and Saurashtra and the region of Vidarbha as from 1-9-1959 by the Bombay Act XCVII of 1958. PUNJAB, HARYANA AND CHANDIGARH In Section 261, for the words “State Government may confer on any Bench of Magistrates invested with the powers of a Magistrate of the second class or third class”, substitute the words, “High Court may confer on any Bench of Judicial Magistrates invested with the powers of a Judicial Magistrate of the second class”. RAJASTHAN Same as that of Maharashtra (1). UNION TERRITORIES (except Chandigrah) Under Section 260 same as that of W. B. 3(11). (ii) in the opening paragraph, for the words “State Government may confer on any Bench of Magistrates invested with the powers of a Magistrate of the second or third class”, substitute the words “State Government, in consultation with the High Court, may confer on any Bench of Judicial Magistrtes invested with the powers of a Judicial Magistrate of the second class”. WEST BENGAL Same as that of Union territories (ii), except at the end for the words “J. M. of second class”, substitute the words “J. M. of second or third class”.
(a) offences against the Indian Penal Code, Sections 277, 278, 279, 285, 286, 289, 290, 292, 293, 294, 323, 334, 336, 341, 352, 426, [447 and 504];
(b) offences against Municipal Acts, and the conservancy clauses of Police Acts which are punishable only with fine or with imprisonment for a term not exceeding one month [with or without fine];
(c) abetment of any of the foregoing offences ;
(d) an attempt to commit any of the foregoing offences, when such attempt is an offence.
SECTION 262: Procedure for summons and warrant cases applicable:
(1) In trials under this chapter, the procedure prescribed for summons-cases shall be followed in summons-cases, and the procedure prescribed for warrant-cases shall be followed in warrant-cases, except as hereinafter mentioned.
Limit of imprisonment.-(2) No sentence of imprisonment for a term exceeding three months shall be passed in the case of any conviction under this chapter.
SECTION 263: Record in cases where there is no appeal:
In cases where no appeal lies, the Magistrate or Bench of Magistrates need not record the evidence of the witnesses or frame a formal charge; but he or they shall enter in such form as the State Government may direct the following particulars– State Amendments PUNJAB , HARYANA AND CHANDIGARH For the words “the State Government”, substitute the words “the High Court.” UNION TERRITORIES (except Chundigrah) For the words “Bench of Magistrate’ ‘substitute the words “Bench of Judicial Magistrate” and rest is the same as that of Punjab. WEST BENGAL For the words “Magistrate or Bench of”, substitute the words “Judicial Magistrate or Bench of Judicial”, and after the words “State Government may” insert the words “in consultation with the High Court”. Notes Even in a summary trial, the Magistrate is enjoined upon to record a statement of reasons for a conviction. 1960 Cr LJ 1453 : AIR 1960 J and K 139. To find out whether there was a plea of guilty or not the Court must have the exact words of the accused person. I960 Cr LJ 1083 : AIR 1960 J and K 106; AIR 1960 J and K 64. Section 263 does not in terms enjoin upon the Magistrate the duty of recording the evidence in extenso ; nevertheless it is incumbent on him to record sufficient evidence to justify his order. 1960 Cr LJ 335 : AIR 1960 Cal 158. If the case is one in which no appeal can possibly lie on conviction, then the case falls within the ambit of Section 263, otherwise within Section 264. 1958 Ker LJ 562: 1959 Cr LJ 45 : AIR 1959 Ker 10. Section 263 of Cr. P. C. is not hit by Article 14 of the Constitution of India. AIR 1959 Pat 46 : 1959 Cr LJ 215.
(a) the serial number;
(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 underclause (d), clause (e), clause (f) or clause (g) 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, and, in the case of a conviction, a brief statement of the reasons therefor;
(i) the sentence or other final order ; and
(j) the date on which the proceedings terminated.
SECTION 264: Record in appealable cases:
[In every case tried summarily by a Magistrate or Bench in which an appeal lies, such Magistrate or Bench shall record the substance of the evidence and also the particulars mentioned in Section 263 and shall, before passing any sentence, record a judgment in the case.] Notes Sections 263 and 264, read together show that in a summary trial or judgment specifying reasons is necessary, for an acquittal whether the case falls under Section 263 or Section 264, but it is proper if the Magistrate writes a short judgment. 1958 Ker LJ 562: 1959 Cr LJ 45: AIR 1959 Ker 10. Section 264 of the Cr. P. C. is not hit by Article 14 of the Constitution, 1958 BLSB 667: 1959 Cr LJ 215: AIR 1959 Pat 46. Substance of evidence is to be recorded at the time when the evidence is given in Court. To embody it in a judgment from memory or from short notes made at the time of giving evidence does not amount to compliance with Section 264. 61 Bom LR 684: 1960 Cr LJ 324: AIR 1960 Bom 107.
SECTION 265: Language of record and judgment:
State Amendments GUJARAT Same as that of Maharashtra (1). MAHARASHTRA (1) In sub-section (2) of Section 265, after ‘the words “the State Government may” insert the words “in consultation with the High Court”. (2) After the reorganization of the State of Bombay in 1956, the amendment made in Section 265 by the above mentioned Bombay Act is extended to the newly added areas of Hyderabad, Kutch and Saurashtra and the region of Vidarbha as from 1-9-1959 by Bombay Act (XCVII of 1958). PUNJAB, HARYANA AND CHANDIGARH In sub-section (2) of Section 265, for the words “the State Government may authorize any Bench of Magistrates” substitute the words “the High Court may authorise any Bencb of Judicial Magistrates.” RAJASTHAN (Abu Area) Same as that of Maharashtra (1). UNION TERRITORIES (except Chandigarh) In Section 265, in sub-section (2) for the words “the State Government may authorize any Bench of Magistrates”, substitute the words “the State Government, in consultation with the High Court, may authorize any Bench of Judicial Magistrates”. WEST BENGAL For the words “authorize any Bench of”, substitute the words “in consultation with the High Court, authorize any Bench of Judicial”.
(1) Records made under Section 263 and judgments recorded under Section 264 shall be written by the presiding officer, either in English or in the language of the Court, or, if the Court to which such presiding officer is immediately subordinate so directs, in such officer’s mother-tongue.
Bench may be authorised to employ clerk.-(2) The State Government may authorise any Bench of Magistrates empowered to try offences summarily to prepare the aforesaid record or judgment by means of an officer appointed in this behalf by the Court to which such Bench is immediately subordinate, and the record or judgment so prepared shall be signed by each member of such Bench present taking part in the proceedings.
(3) If no such authorization be given, the record prepared by a member of the Bench and signed as aforesaid shall be the proper record.
(4) If the Bench differ in opinion, any dissentient member may write a separate judgment.
CHAPTER 23: OF TRIALS BEFORE HIGH COURTS AND COURTS OF SESSION:
SECTION 266: “High Court” defined:
In this chapter, except in Sections 276 and 307, and in Chapter XVIII, the expression “High Court” [means [the High Court] [not being a Court of the Judicial Commissioner] [and includes such other Courts as the State Government may by notification in the Official Gazette, declare to be High Courts for the purposes of this chapter [and of chapter XVIII]. State Amendments ANDHRA PRADESH (Added Territories) The amendments made by Madras Act XXXIV of 1955 shall stand repeated. TAMIL NADU (a) Omit the words ‘High Courts’ and in the heading to the Chapter XXIII of the Code and (b) omit Section 266.
SECTION 267: Trials before High Court to be by jury:
All trials under this chapter before a High Court shall be by jury; and, notwithstanding anything herein contained, in all criminal cases transferred, to a High Court under this Code or under the Letters Patent [or [law] by which the High Court is constituted or continued], the trial may, if the High Court so directs, be by jury. State Amendments ANDHRA PRADESH (Added Territories) The amendment made in Section 267 by Madras Act XXXIV of 1955 shall stand repealed. In the marginal note after the words “High Court” and in the section after the words “High Court” where they occur for the first time insert the words “or the Court of Session for Greater Bombay”, subject to the adaptation that for the words “Greater Bombay” words “City of Ahmedabad” are to be substituted. MAHARASHTRA (a) Delete the portion beginning with the words “All trials” and ending with the ; words “notwithstanding anything herein contained” ; (b) for the marginal note substitute the following: “Trials before High Court in certain cases to be by jury.” TAMIL NADU Omit Section 267.
SECTION 268: Trials before Court of Session:
[All trials before a Court of Session shall be either by jury, or by the Judge himself.] State Amendments GUJARAT Same as that of Maharastra (1). MAHARASHTRA (1) Insert in Section 268 at the beginning, the words and figures “Subject to the provisions of Section 267”. (2) After the reorganization of the State of Bombay in 1956, the amendment made in Section 268 by the above-mentioned Bombay Act is extended to the newly added areas of Hdyerabad,Kutch and Saurashtra and the region of Vidarbha as from 1-9-1959 by Borm. Act XCVII of 1958. WEST BENGAL The provision made in respect of Sections 268 and 269 in Section 9(1) and (1A) of the City Sessions Court Act, 1953) is as follows: “9(1) Trials before the City Sessions Court to by jury.-Notwithstanding anything contained in Sections 268 and 269 of the Code but subject to the provisions of sub-section (1A), all trials before the City Sessions Court shall be byjury and such Court, if it is satisfied that the interests of justice so require, may, on application made to it or of its own motion, by order direct that any trial before it shall be by jurors summoned from a special jury list and may revoke or alter such order.” (1A) When in respect of a trial before the City Sessions Court, it appears to the High Court, on an application made to it or otherwise, that having regard to the volume or complexity of the evidence in the case, the trial is not likely to be concluded within two weeks from its commencement, or that the case would involve consideration of evidence of a highly technical nature, which renders it undesirable that it should be tried by ajury, the High Court may, by order, direct that the case shall be tried by the Judge himself without a jury and the Judge shall proceed to try the case accordingly.
SECTION 269: State Government may order trials before Court of Session to be by jury:
State Amendments Same as that of Maharashtra (1) and (2) except for the words “Greater Bombay” substitute the words “City of Ahmedabad”. MAHARASHTRA (1) In sub-section (1) of Section 269- (a) after the word “Session” insert the words “other than the Court of Session for Greater Bombay”. (b) after the words “the State Government may” insert the words “in consultation with the High Court”. (2) After the reorganisation of the Slate of Bombay in 1956, the amendments made in Section 269 by the above mentioned Bombay Acts are extended to the newly added areas of Hyderabad, Kutch and Saurashtra and the region of Vidarbha as from 1-9-1959 by the Bombay Act XCVII of l958. (3) In its application to the State of Maharashtra, in sub-section (1) of Section 269 for the words “other than” substitute the word “including”. PUNJAB : HARYANA AND CHANDIGARH In sub-sections (1) and (2) of Section 269, after the words “State Government”, insert the words “in consultation with the High Court”. RAJASTHAN (Abu Area) Same as that of Maharashtra (1). UNION TERRITORIES (except Chandigarh) Same as that of Punjab. WEST BENGAL Same as that of Punjab. Note The High Court can in the circumstances mentioned in Section 269(4) direct a case pending trial before the Court of Sessions for Greater Bombay, to be tried by the Judge himself without ajury. 60 Bom LR 834: 1959 Cr LJ 28 : AIR 1959 Bom 1 (FB.)
(1) The State Government may) * * * by order in the Official Gazette, direct that the trial of all offences, or of any particular class of offences, before any Court of Session, shall be by jury in any district, and may, * * * revoke or alter such order.
(2) The State Government, by like order, may also declare that, in the case of any district in which the trial of any offence is to be by jury, the trial of such offences shall, if the Judge, on application made to him or of his own motion so directs, be by jurors summoned from a special jury list, and may revoke or alter such order.
(3) When the accused is charged at the same trial with several offences of which some are and some are not triable by jury, he shall be tried-by jury for such of those offences as are triable by jury, and [by the Judge himself], for such of them as are not triable by jury.
[(4) When, in respect of a trial in which the accused is charged with an offence triable by jury, it appears to the High Court, on an application made to it or otherwise, that having regard to the volume or complexity of the evidence in the case, the trial is not likely to be concluded within two weeks from its commencement, or that the case would involve consideration of evidence of a highly technical nature, which renders it undesirable that it should be tried by a jury, the High Court may, notwithstanding anything contained in any order made under sub-section (1), by order, direct that that case shall be tried by the Judge himself without a jury and the Judge shall proceed to try the case accordingly.]
SECTION 270: Trial Before Court of Session to be conducted by public Prosecutor:
In every trial before a Court of Session the prosecution shall be conducted by a Public Prosecutor. Notes It is extremely undesirable and quite improper that a Public Prosecutor should be allowed to ait back, handing over the conduct of the case ot a counsel, however eminent he may be, briefed by the complainant in the case, 1959 Cr LJ 1045: AIR 1959 Andh Pra 477. Where the circumstances indicated that the Public Prosecutor had entirely effected himself and given up his charge of the case to the counsel appearing for private complain and leaving the entire conduct of the case to him, this irregularity caused prejudice to the accused ; hence retrial was ordered. 1959 Cr LJ 1404 : AIR 1959 Andh Pra 689.
SECTION 271: Commencement of trial:
Notes The plea of guilty only amounts to an admission that the accused committed the acts alleged but from this it does not follow that he is pleading to a section of a criminal statute. 1960 Cr LJ 1453: AIR 1960 J and K 139. It the facts proved by the prosecution do not amount to an offence then the plea of guilty cannot preclude the accused from agitating in High Court the correctness of his conviction 1960 Mad LJ (Cr) 318: 1960 Cr LJ 965 : AIR 1960 Mys 177. Committal Magistrate has no power to record the plea of the accused and conviction based on that plea is bad in law. 1960 All Cr R 393: (1951) 1 Cr LJ 400: AIR 1961 Mys 71. Before a Court can convict an accused person merely on his admission it must see that the admission relates to offence alleged. 1960 Cr LJ 1085 : AIR 1960 J and K 108. Whether the facts admitted constituted the offence charged is really a question of law as to which the plea of the accused must be considered to be immaterial. Mere admission of the accused that the facts mentioned in the complaint are correct is not tantamount to a plea of guilty. 1960 Cr LJ 1083: AIR 1960 J and K 106. Section 271 requires that a Sessions Judge should read over and explain the charges framed by the Magistrate, but where the Sessions Judge failed to do so, but there was no proof of prejudice to the accused held that the trial in view of Section 537 was not vitiated. AIR 1962 SC 1198.
(1) When the Court is ready to commence the trial, the accused shall appear or be brought before it, and the charge shall be read out in Court and explained to him, and he shall be asked whether he is guilty of the offence charged, or claims to be tried.
Plea of guilty.-(2) If the accused pleads guilty, the plea shall be recorded, and he may be convicted thereon.
SECTION 272: Refusal to plead or claim to be tried:
[If the accused refuses to, or does not, plead, or if he claims to be tried, the Court shall, in a case triable byjury, proceed to choose jurors as hereinafter directed and to try the case, but in any other case, the Judge shall proceed to try the case himself : Provided that, in cases triable by jury, the same jury may, subject to the right of objection hereinafter mentioned, try as many accused persons successively as the Court thinks fit.]
SECTION 273: Entry on unsustainable charges:
State Amendments ANDHRA PRADESH (Added Territories) The amendment made in respect of Section 273 by Madras Act XXXIV of 1955, shall stand repealed. TAMIL NADU Omit Section 273.
(1) In trials before the High Court, when it appears to the High Court, at any time before the commencement of the trial of the person charged, that any charge or any portion thereof is clearly unsustainable, the Judge may make on the charge an entry to that effect.
Effect of entry.-(2) Such entry shall have the effect of staying proceedings upon the charge or portion of the charge, as the case may be.
SECTION 274: Number of jary:
State Amendments ANDHRA PRADESH (Added Territories) The amendment made in Section 274 by Madras Act XXXIV of 1955 shall stand repealed. GUJARAT Same as that of Maharashtra (1), except for the words “Greater Bombay” substitute the words “City of Ahmedabad”. MAHARASTRA (1) (a) In sub-section (1), after the words “High Court” insert the words “or the Court of Session for Greater Bombay” ; and (b) in sub-section (2) for the words “before the Court” substitute the words “before any other Court”. (2) After the reorganisation of the State of Bombay in 1956, the amendments made in Section 274 by the above mentioned Bombay Act are extended to the newly added areal of Hyderabad, Kutch and Saurashtra and the region of Vidarbha as from 1-9-1959 by Bombay Act XCVII of 1958. TAMIL DADU Omit sub-section (1).
(1) Intrials before the High Court the jury shall consist of nine persons.
(2) In trials byjury before the Court of Session the jury shall consist of such uneven number, not being less then [seven] or more than nine, as the State of Government, by order applicable to any particular district or to any particular class of offences in that district, may direct ; [Provided that, where any accused person is charged with an offence punishable with death, the jury [shall consist, if practicable, of nine persons].]
SECTION 275:
[Jury for trial of European and Indian British subjects and others.] Rep. by the Criminal Law (Removal of Racial Discriminations’) Act, 1949 (17 of1949), Section 3.
SECTION 276: Jurors to be chosen by lot:
The jurors shall be chosen by lot from the persons summoned to act as such in such manner as the High Court may from time to time by rule direct : Provided that- Existing practice maintained; first, pending the issue under this section of rules for Court the practice now prevailing in such Court in respect to the choosing of jurors shall be followed; person not summoned when eligible ; secondly, in case of a deficiency of persons summoned, the number of jurors required may, with the leave of the Court, be chosen from such other persona as may be present ; trials before special jurors; thirdly, [in a trial before any High Court in the town which is the usual place of sitting of such High Court]- State Amendments ANDHRA PRADESH (Added Territories) The amendment made in Section 276 by Madras Act XXXIV of 1955, shall stand repealed. GUJARAT Same as that of Maharashtra (1) except for the words “Greater Bombay”, the words “City of Ahmedabad” are to be substituted, MAHARASHTRA (1) In clause ‘thirdly’ of the Proviso, after the words “of such High Court”, insert the words “or before the Court of Session for Greater Bombay”. (2) After the reorganisation of the State of Bombay in 1956, the amendment made in Section 276 by the above mentioned Bombay Act is extended to the newly added areas of Hyderabad, Kutch and Saurashtra and the region of Vidarbha as from 1-9-1959 by the Bombay Act XCVII of 1958. TAMIL NADU Omit clause ‘thirdly’ of the Proviso.
(a) if the accused person is charged with having committed an offence punishable with death, or
(b) if in any other case a Judge of the High Court so directs, the jurors shall be chosen from the special jury list hereinafter prescribed; and fourthly, in any district for which the State Government has declared that the trial of certain offences may be by special jury, the jurors shall, in any case in which the Judge so directs, be chosen from the special jury list prescribed in Section 325.
SECTION 277: Names of jurors to be called:
State Amendments ANDHRA PRADESH (Added Territories) The amendment made in Section 277 by Madras Act XXXIV of 1955, shall stand repealed. GUJARAT Same as that of the Maharashtra (1) except for words “Greater Bombay” the words “City of Ahnnedabad” are to be substituted. MAHARASHTRA In sub-section (2) of Section 277, proviso, after the words “High Court” insert the words “or the Court of Session for Greater Bombay”. (2) After the reorganisation of the State of Bombay in 1956, the amendment made in Section 277 by the above-mentioned Bombay Act is extended to the newly added areas of Hyderabad, Kutch and Saurashtra and the region of Vidarbha as from 1-9-1959 by the Bombay Act XCVII of 1958. TAMIL NADU Omit the proviso to sub-section (2).
(1) As each juror is chosen, his name shall be called aloud, and, upon his appearance, the accused shall be asked if he objects to be tried by such juror.
Objection to jurors.-(2) Objection may then be taken to such juror by the accused or by the prosecutor, and the grounds of objection shall be stated :
Objection without grounds stated.-Provided that, in the High Court, objections without grounds stated shall be allowed to the number of eight on behalf of the Government and eight on behalf on the person or all the persons charged.
SECTION 278: Grounds of objection:
Any objection taken to a juror on any of the following grounds, if made out to the satisfaction of the Court, shall be allowed : – Notes It is the duty of the Judge to summarise the evidence and explain the law to the Jury. 1958 MPLJ (Notes) 173. Unless each juror understands each and every point of the proceedings, specially the charge to the jury, it will be mockery of justice to have a verdict and to act upon it. 1960 MPLJ 24; 1960 Cr LJ 486 : AIR 1960 Madh Pra 118,
(a) some presumed or actual partiality in the juror;
(b) some personal ground, such as alienage, deficiency in the qualification required by any law or rule having the force of law for the time being in force, or being under the age of twenty-one or above the agof sixty years ;
(c) his having by habit or religious vows relinquished all care of worldly affairs;
(d) his holding any office in or under the Court;
(e) his executing any duties of police or being entrusted with police duties;
(f) his having been convicted of any offence which, in the opinion of the Court, renders him unfit to serve on the jury ;
(g) his inability to understand the language in which the evidence is given, or when such evidence is interpreted the language in which it is interpreted ;
(h) any other circumstance which, in the opinion of the Court, renders him improper as ajuror.
SECTION 279: Decision of objection:
(1) Every objection taken to ajuror shall be decided by the Court, and such decision shall be recorded and be final.
Supply of place of juror against whom objection allowed.-(2) If the objection is allowed, the place of such juror shall be supplied by any other juroro attending in obedience to a summons and chosen in manner provided by Section 276, or if there is no such other juror present, then by any other person present in the Court whose name is on the fist of jurors, or whom the Court cinsiders a proper person to serve on the jury: Provided that no objection to such juror or other person is taken under Section 278 and allowed.
SECTION 280: Foreman of jury:
(1) When the jurors have been chosen, they shall appoint one of their member to be foreman.
(2) The foreman shall preside in the debates of the jury, deliver the verdict of the jury, and ask any information from the Court that is required by the jury or any of the jurors,
(3) If a majority of the jury do not, within such time as the Judge thinks reasonable, agree in the appointment of a foreman, he shall be appointed by the Court.
SECTION 281: Swaring of jurors:
When the foreman has been appointed, the jurors shall be sworn under the Indian Oaths Act, 1873.
SECTION 282: Procedure when juror ceases to attend, etc:
[- Notes Where a jurior has been discharged for misconduct, a fresh jury is to be elected, 1959 Cr LJ 1413 : AIR 1959 An 238. It is for the Judge to decide whether a certain conduct of a juror amounts to a rmisconduct necessitating the discharge of the jury. 1960 Or LJ 815: AIR 1960 Cat 344.
(1) If, in the course of a trial by jury at any time before the return of the verdict,- (a) any juror, from any sufficient cause, is prevented from attending the trial on any day, or (b) if any juror absents himself and it is not practicable to enforce his attendance, or (c) if it appears that any juror is unable to understand the language in which the evidence is given or, when such evidence is interpreted, the language in which it is interpreted, the Court, in any case falling under clause (a), may either adjourn the trial or, discharge the juror and in any case falling under clause (b) or clause (c), shall discharge the juror; and in any case where any juror is so discharged the jury shall be deemed to be reconstituted with the remaining jurors as if the jury had consisted of such persons only from the commencement of the trial and the trial shall proceed before the jury so reconstituted ; and notwith standing anything contained elsewhere in this Code, such trial shall not be invalid by reason only of the fact that the number of persons originally constituting the jury has been reduced.
(2) Notwithstanding anything contained in sub-section (1), if, in the course of a trial by jury, the number of persons constituting the jury is so reduced that,- (a) when the jury originally consisted of nine persons, it falls below seven, or (b) when the jury originally consisted of seven persons, it falls below five, the jury shall be discharged and a new jury chosen, and in each of such cases the trial shall commence anew.]
SECTION 283: Discharge of jury in case of sickness of prisoner:
The judge may also discharge the jury whenever the prisoner becomes incapable of remaining at the bar.
SECTION 284:
[Assessors how chosen.] Rep. by the Code of Criminal Procedure (Amendment) Act, 1955 (26 of 1955), Section 43.
SECTION 284A:
[Assessors for trial of European and Indian British subjects and others.] Rep. by the Criminal Law (Removal of Racial Discriminations) Act, 1949 (77 of 1949), Section 3.
SECTION 285:
[Procedure when assessors is unable to attend.] Rep. by the Code of Criminal Procedure (Amendment) Act, 1955 (26 of 1955), Section 43.
SECTION 285A:
[Trial of European or Indian British subject or European or American jointly accused with others.] Rep. by the Criminal Law (Removal of Racial Discriminations Act, 1949 (77 of 1949) Section 3.
SECTION 286: Opening case for prosecution:
Notes The prosecution cannot withhold an important witness who is the brother of the accused and also the informant, on the mere ground that if produced he would not have deposed in favour of the prosecution. The non-production of the informant is a serious lacuna in the evidence adduced on behalf of the prosecution. 1958 Andh L T 633. It is the duty of the Sessions Court to force the evidence of an important witness like search witness to come on record by issuing coercive process. 24 Cut LT 445. For examination of material witnesses by the prosecution, see Section 208 supra. 1960 Cr LJ 480 : AIR 1960 Madh Pra 102. Where the prosecution have additional witness who were not examined in the commital Court or during investigation, ready and available to them for giving evidence and keep them in attendance, their evidence can be recorded and there is no legal impediment to that course if the case of the prosecution is not then closed. To such a case Section 286 (2) is attracted. 1959 Nag LJ 501: 1960 Cr LJ 465: AIR 1960 Bom 150.
(1) [In a case triable by jury, when the jurors have been chosen or, in any other case, when the Judge is ready to hear the case], the prosecutor shall open his case by reading from the Indian Penal Code or other law the description of the offence charged, and stating shortly by what evidence he excepts to prove the guilt of the accused.
Examination of witnesses. -(2) The prosecutor shall then examine his witnesses.
SECTION 287: Examination of accused before Magistrate to be evidence:
The examination of the accused [if any] recorded by or before the committing Magistrate shall be tendered by the prosecutor and read as evidence. Notes Evidence in Section 207-A (6) and (7) does not include documents referred to in Section 173. See Section 207-A supra. 1960 CrLJ 327: AIR 1960 Bom 124. Where statement of accused under Section 342 before committing Magistrate is not brought on record before Sessions Judge and there is nothing to show that it was read over to accused, it cannot be used against him. (1961) 1 Cr LJ 400: AIR 1961 Mys 71.
SECTION 288: Evidence given at preliminary inquiry admissible:
The evidence of a witness [duly recorded in the presence of the accused under Chapter XVIII] may, in the discretion of the presiding Judge, if such witness is produced and examined, be treated as evidence in the case [for all purposes subject to the provisions of the Indian Evidence Act, 1872.] Notes The additional Sessions Judge committed a mistake in transferring only a portion of the statement made before the committing Court, to the record in his Court under Section 288, Cr. P. Code. 1959 MPLJ (Notes) 24. It is but proper that the trial Judge should indicate by an order that he was going to treat the evidence which had been recorded in the committing Magistrate’s Court an evidence at the trial in order to enable the accused to meet that evidence. 1958 All LJ 885 : 1959 Cr LJ 415 : AIR 1959 All 238. Where the formal tendering of evidence was accepted as substantive at the end.of the prosecution evidence but was made available to the defence, there was no point in the contention that the evidence should not have been received under Section 288 as treated as evidence in the case. AIR 1960 Mani 1. The evidence of a witness examined by the committing Magistrate and brought on record in the Sessions Court under Section 288, if to be dealt with as if it was evidence given in the Sessions.Court. 61 Bom LR 447 : 1959 Cr LJ 1427 : AIR 1959 Bom 552. Section 288 no doubt confers power on the Sessions Judge to treat the evidence of a prosection witness taken before the committing Magistrate as substantive evidence in the trial before him. 1960 Cr LJ 1167 : AIR 1960 All 521. Section 283 has been enacted mainly to prevent the accused persons from tampering with the prosecution witnesses. AIR 1960 Mani 1. Where the earlier statement of witness in committing court is transferred to the record of Session Trial, reasons of such transfer should be stated This will make it quite clear to the accused that the earlier statement is likely to be used as substantive evidence against him. But where the accused was questioned with reference to the statement of a witness made before the committing Magistrate which, the judge informed him, was marked under Section 277, and he was asked when he had to say about it, although the requirement of the section, namely that an order should be passed to indicate that the statement is transferred so as to be read as substantive evidence, was not complied with, there was no substantantive departure from the requirements of the law. AIR 1967 SC 1027 : 1967 Cr LJ 975. Where a witness resiled from his statement made before the committing Court, but the statement had been brought on record under Sention 288, held that such earlier statement may be accepted if the Court is satisfied from other evidence or failing such evidence the Court is satisfied that the earlier statement is a correct one after bearing in mind the intrinsic weakness of the evidence, in that two different statements on oath which have been made. AIR 1964 SC 1357. Where .a court thinks fit to treat the statement made by a witness at a preliminanary enquiry as evidence in the case it should bring the entire statement on the record as a whole and not in part which suits the prosecution. However, if the previous statement of the witness is not brought on the record as a whole and only extracts are brought on record obviously the court will not be in a position to judge for itself the true effect of the statement. AIR 1963 All 19. Witness turning hostile in Trial Court-His statement before committing court being brought on record under Section 288.-No objection by the defence counsel on the ground of inadmissibility of evidence- Objection, whether can be raised in appeal-Compliance of the provisions of Section 145, Evidence Act,-How far. State of Rajasthan v. Kartar Singh, (1970)2 SCC 61 : 1970 SCC (Cr) 397 : AIR 1970 SC 1305.
SECTION 289: Procedure after examination of witnesses for prosecution:
Requirements under Cr. P. C.-Examination of-Caused-Question regarding the defence evidence when to be put to be accused.- Section 289 requires that if the Trial Judge comes to the conclusion that there is evidence to show that the accused has committed the offence, then the accused should be called upon to enter upon his defence. After putting the questions that are required to be put under Section 342, Cr. P. C., the accused was asked whether he had any defence evidence. We do not think that, that procedure in any way conflicts with Section 289, Cr. P. G., Pati Ram v. State of U. P., (1970)3 SCC 703. It is no doubt true that the evidence of a solitary witness who has resiled from his earlier statement has to be treated with caution but where there is other independent corroboration in the form of the first information report and the report of the ballistic expert to support his earlier statement, reliance can the placed on the earlier statement of such a witness. 1971 SCC (Cr) 376.
(1) When the examination of the witness for the prosecution and the examination (if any) of the accused are concluded, the accused shall be asked whether he means to adduce evidence.
(2) If he says that he does not, the prosecutor may sum up his case; and, if the Court considers that there is no evidence that the accused committed the offence, it may then, [in a case tried by the Judge himself ] record a finding, or, in a case tried by a jury, direct the jury to return a verdict of not guilty.
(3) If the accused, or any one of several accused,says that he means to adduce evidence, and the Court considers that there is no evidence that the accused committed the offence, the Court may then, [in a case tried by the Judge himself], record a finding, or, in a case tried by a jury direct the jury to return a verdict of not guilty.
(4) If the accused, or any one of several accused, says that he means to adduce evidence, and the Court considers that there is evidence that he committed the offence, or if, on his saying that he does not mean to adduce evodence, the prosecutor sum up his case and the Court considers that there is evidence that the accused committed the offence, the Court shall call on the accused to enter on his defence.
SECTION 290: Defence:
The accused or his pleader may then open his case, stating the facts or law on which he intends to rely, and making such comments as he thinks necessary on the evidence for the prosecution. He may then examine his witnesses (if any) and after their cross-examination and reexamination (if any) may sum up his case.
SECTION 291: Right of accused as to examination and summoning of witnesses:
The accused shall be allowed to examine any witness not previously named by him, if such witness is in attendance; but he shall not except as provided in Sections [297-A], 211 and 231, be entitled of right to have any witness summoned, other than the witnesses named in the list delivered to the Magistrate by whom he was committed for trial.
SECTION 292: Prosecutor’s right of reply:
[The prosecutor shall be entitled to reply–
(a) if the accused or any of the accused adduces any oral evidence; or
(b) with the permission of the Court, on a point of law ; or
(c) with the permission of the Court, when any document which does not need to be proved is produced by any accused person after he enters on his defence : Provided that, in the case referred to in clause (c), the reply shall, unless the Court otherwise permits, be restricted to comment on the document so produced.]
SECTION 293: View be jury:
(1) Whenever the Court thinks that the jury * * * should view the place in which the offence charged is alleged to. have been committed, or any other place in which any other transaction material to the trial alleged to have occurred, the Court shall make an order to that effect, and the jury * * * shall be conducted in a body, under the care of an officer of the Court, to such place, which shall be shown to them by a person appointed by the Court.
(2) Such officer shall not, except with the permission of the Court, suffer any other person to speak to, or hold any communication with any of the jury * * *, and unless the Court otherwise directs, they shall, when the view is finished, be immediately conducted back into Court.
SECTION 294: When juror may be examined:
If a juror * * * is person ally acquainted with any relevant fact, it is his duty to inform the Judge that such is the case, whereupon he may be sworn, examined, cross-examined and re-examined in the same manner as any other witness.
SECTION 295: Jury to attend at adjourned sitting:
If a trial is adjourned, the jury * * * shall attend at the adjourned sitting, and at every subsequent sitting, until the conclusion of the trial.
SECTION 296: Locking up jury:
The High Court may, from time to time, make rules as to keeping the jury together during a trial before such Court lasting for more than one day; and subject to such rules) the presiding Judge may order whether and in what manner the jurors shall be kept together under the charge of an officer of the Court, or whether they shall be allowed to return to their respective homes, State Amendments ANDHRA PRADESH (Added Territories) The amendment made in Section 296 by Madras Act XXXIV of 1955, shall stand repealed, GUJARAT Same as that of Maharashtra (1). Except for the words “Greater Bombay” the words “City of Ahmedabad” are to be substituted, MAHARASHTRA (1) After the words “such Court” insert the words “or the Court of Session for Greater Bombay”. (2) After the reorganisation of the State of Bombay in 1956, the amendment made in Section 296 by the above-mentioned Bombay Act is extended to the newly added areas of Hyderabad, Kutch and Saurashtra and the region of Vidarbha as from 1-9-1959 by the Bombay Act XCVII of 1958. TAMIL NADU Omit the words “before such Court”.
SECTION 297: Charge to jury:
In cases tried by jury, when the case for the denceand the prosecutor’s reply (if any), are concluded, the Court shall proceed to charge the jury, summing up the evidence for the prosecution and defence, and laying down the law by which the jury are to be guided [and the charge to the jury shall, wherever practicable, be taken down in shorthand in the language in which it is delivered and a transcript thereof signed by the Judge shall form part of the record]. Notes Omission on the part of the Judge to caution the Jury that it is ordinarily unsafe to base a conviction on the statement of a dead person, amounts to misdirection. 64 Cal WN 671. Every individual fact on which doubt may be entertained may be held against the prosecution; but it does not mean that a doubt about any individual fact the benefit of which goes to the accused, must result in the Jury bringing in their verdict of not guilty. 1960 Cr LJ 1020: AIR 1963 S C 706. The Judge must tell the Jury that even if they held that the accused did not cause a grievous injury, it would be open to them to hold that he caused a simple injury, which would bring the matter within Section 323 of the Penal Code. 1960 Cr LJ 1020: AIR Where the accused pleaded that the occurrence was the result of pure accident, and the Judge, in his charge to the Jury only explained Section 80, I. P. Code and made no reference to Section 338 or Section 337, I. P. Code, it was held that this omission was a serious non-direction amounting to misdirection. AIR 1960 Cal 142. If the object behind summing up of the evidence is to help the Jury to arrive at a proper decision, this object cannot be attained unless the Judge makes useful observations in hissumming up to the Jury. AIR 1960 Cal 142. The value of a medical witness is not merely a check upon the testimony of eyewitneese, it is also independent testimony, because it may establish certain fact, quite apart from the other oral evidence. 1960 Cr LJ 1020: AIR 1960 SC 706. Where the Judge directed the Jury to reconsider their verdict of not guilty after administering a further summing up but failed to make a record of the supplementary charge to Jury, the defect is vital vitiating the verdict. Retrial was ordered. 1960 Cr LJ 337 AIR 1960 Cal 179. Jury not returning separate verdicts in respect of each of the deceased persons, held there was failure of justice. See Section 233 supra. AIR 1960 Cal 269. The Sessions Judge can re-charge the Jury if he finds that the verdict of the Jury is wrong due to their misunderstanding or making a mistake on a question of law, but he can do so by inviting the attention of the Jury to that mistake and giving his reasons therefor. 61 Bom LR 670: 1959 Cr LJ 1150: AIR 1959 Bom 435 (FB). The Judge cannot place the first information report before Jury. 1960 Cr LJ 532: AIR 1960 SC 391. When some Jurors are not understanding proceedings of Court, verdict of Jury was vitiated. 1960 Cr LJ 486 : AIR 1960 Madh Pra 118. ( By majority, Hidayatullah, J.,dissenting). Although the charge to the Jury suffered from a plethora of details and also a meticulous statement of the divergent views of the doctors, there was no adoption of a double standard for dealing with the prosecution and defence, evidence, and no serious misdirection on any question of fact and law. Hence, no case for interference by Supreme Court with the verdict of Jury had been made out in the case. 1960 Cr LJ 1020: AIR 1960 SC 76. Omission by the Sessians Judge to refer to statutory presumption under Section 105 of the Evidence Act and to explain the ingredients of Section 89 of the Penal Code vitiate the verdict of the Jury. Misdirection vitiating the verdict of jury laid down. AIR 1962 SC 605. The misdirection of the Jury can not have the effect of miking the verdict of no effect unless there is a failure of Justice. If there is failure of justice then the verdict of the Jury would be set aside. AIR 1962 SC 605.
SECTION 298: Duty of Judge:
Notes The question of the capacity of the witness to testify is a question for the Judge him self to decide and not for the Jury. 1959 Cal LJ 142: 1959 Cr LJ 584: AIR 1959 cal 306. The High Court in a appeal can even in cases of serious misdirection or non-direction consider the evidence and maintain the conviction if the evidence clearly establishes the guilt of the accused. 1959 Cr LJ 268: AIR 1959 All 149. The finding of the Jury on questions of fact being binding upon the Judge, it will not be open to the Judge to tell the Jury that their finding is incorrect due to a mistake of fact 61 Bom LR 670: 1959 Cr LJ 1150: AIR 1959 Bom 434 (FB).
(1) In such cases it is the duty of the Judge- (a) to decide all questions of law arising in the course of the trial, and especially all question as to the relevancy of facts which it is proposed to prove, and the admissibility of evidence or the. propriety of questions asked by or on behalf of the parties; and, in his discretion, to prevent the production of inadmissible evidence, whether it is or is not objected to by the parties ; (b) to decide upon the meaning and construction of all documents given in evidence at the trial; (c) to decide upon all matters of fact which it may be necessary to prove in order to enable evidence of particular matters to be given; (d) to decide whether any question which arises is for himself or for the jury, and upon this point his decision shall bind the jurors.
(2) The Judge may, if he thinks proper, in the course of his summing up, express to the jury his opinion upon any question of fact, or upon any, question of mixed law and fact) relevant to the proceeding,
Illustrations (a) It is proposed to prove a statement made by a person not being a witness in the case, on the ground that circumstances are proved which render evidence of such statement admissible. It is for the Judge, and not for the Jury, to decide whether the existence of theose circumstances has been proved. (b) It is proposed to give secondary evidence of a document the original of which is alleged to have been lost or destroyed. It is the duty of the Judge to decide whether the original has been lost or destroyed.
SECTION 299: Duty of Jury:
It is the duty of the Jury-
(a) to decide which view of the facts is true and then to return the verdict which under such view ought, according to the direction of the Judge, to be returned;
(b) to determine the meaning of all technical terms (other than terms of law) and words used in an unusual sense which it may be necessary to determine, whether such words occur in documents or not;
(c) to decide all questions which according to law are to be deemed questions of fact ;
(d) to decide whether general indefinite expressions do or do not apply to particular cases) unless such expressions refer to legal procedure or unless their meaning is ascertained by law, in either of which cases it is the duty of the Judge to decide their meaning.
Illustrations (a) A is tried for the murder of B. It is the duty of the Judge to explain to the Jury the distinction between murder and culpable homicide, and to tell them under what views of the facts A ought to be convicted of murder, or of culpable homicide, or to be acquitted. It is the duty of the Jury to decide which view of the facts is true and to return a verdict in accordance with the direction of the Judge, whether that direction is right or wrong, and whether they do or do not agree with it. (b) The question is whether a person entertained a reasonable belief on a particular point-whether work was done with reasonable skill or due diligence. Each of these is a question for the Jury.
SECTION 300: Retirement to consider:
In cases tried by Jury, after the Judge has finished his charge, the Jury may retire to consider their verdict. Except with the leave of the Court, no person other than a Juror shall speak to or hold any communication with, any member of such Jury.
SECTION 301: Delivery of verdict:
When the Jury have considered their verdict, the foreman shall inform the Judge what is their verdict, or what is the verdict of a majority [or that the Jurors are equally divided in opinion].
SECTION 302: Procedure where Jury differ:
If the Jury are not unanimous, the Judge may require them to retire for further consideration. After such a period as the Judge considers reasonable, the Jury may deliver their verdict, althoough they are not unanimous [or the foreman may inform the Judge that the Jurors are still equally divided in opinion].
SECTION 303: Verdict to be given on each charge: Judge may question Jury:
Note The Judge is duty bound to first ask the Jury their verdict with regard to each of the accused and with regard to each of the charges and the taking of a single verdict on each cjarge is mandatory. Omission in this behalf is an illegality vitiating the whole trial. 1959 Cr. LJ 1068: AIR 1959 Cal 582.
(1) Unless otherwise ordered by the Court, the Jury shall return a verdict on all the charges on which the accused is tried, and the Judge may ask them such questions as are necessary to ascertain what their verdict is.
Questions and answers to be recorded.-(2) Such questions and the answers to them shall be recorded.
SECTION 304: Amending verdict:
When by accident or mistake a wrong verdict is delivered, the Jury may, before or immediately after it is recorded, amend the verdict, and it shall stand as ultimately amended. Note Section 304 enables a wrong verdict to be corrected when it is occasioned by a mistake or accident. 61 Bom LR 670: 1959 Cr LJ 1150 : AIR 1959 Bom 434 (FB).
SECTION 305: Verdict in High Court when to prevail:
State Amendments ANDHRA PRADESH (Added territories) Omit Section 305. MAHARASHTRA In the marginal note and in sub-section (1) the- words “of the Court of Session for Greater Bombay” have been inserted after the words “High Court”. Bombay Act No. 32 of 1948. TAMIL NADU Omit Section 305.
(1) When in a case tried before a High Court the Jury are unanimous in their opinion, or, when as many as six are of one opinion and the Judge agrees with them, the Judge shall give judgment in accordance with such opinion.
(2) When in any such case the Jury are satisfied that they will not be unanimous, but six of them are of one opinion, the foreman shall so inform; the Judge.
Discharge of jury in other cases.-(3) If the Judge disagrees with the majority, he shall at once discharge the Jury.
(4) If there are not so many as six who agree in opinion, the Judge shall, after the lapse of such time as he thinks reasonable, discharge the Jury.
SECTION 306: Verdict in Court of Session when to prevail:
State Amendment MAHARASHTRA In sub-section (1) of this section after the word “Session” the words, “other then Court of Session for Greater Bombay” have been inserted. Bombay Act 32 of 1948. Note Where a Judge does not disagree with the verdict of the Jury he is to act under Section 306 of the Code. A reference under Section 307, Cr. P. Code, must be of a whole case and not of part of it. 1959 Cr LJ 1309: AIR 1959 Cal 659.
(1) When in a case tried before the Court of Session the Judge does not think it necessary to express disagreement with the verdict of the Jurors or of a majority of the Jurors, he shall give judgment accordingly.
(2) If the accused is acquitted, the Judge shall record judgment of acquittal. If the accused is convicted, the Judge shall, [unless he proceeds in accordance with the provisions of Section 562,] pass sentence on him according to law.
SECTION 307: Procedure where Sessions Judge disagrees with verdict:
Notes Merely disagreeing with the verdict of the Jury is, by itself, not sufficient for referring the case to the High Court, unless he further finds that it is necessary for the ends of justice to do so. 1959 Cr LJ 1413: AIR 1959 Ass 238. Where in a reference under Section 307, the High Court after considering the entire evidence on the record comes to the conclusion that no reasonable body of men could have returned a verdict of guilty against any of the accused persons the reference is justified and the verdict must be set aside. 1960 Cr LJ 338: AIR 1960 Cal 183. The powers of the High Court are larger when a case is submitted by the Sessions Judge when he differs from the Jury and when the High Court deals with the matter in an appeal. When an appeal is heard by the High Court, it means that the verdict of the Jury has not been perverse, and the matter to be heard is a question of law but when a reference is made, the High Court can exercise any of the procedural powers appropriate to the occasion such as, issuing of notice, calling for records, remanding the case for re-trial, etc. AIR 1962 SC 605.
(1) If in any such case the Judge disagrees with the verdict of the Jurors, or of a majority of the Jurors, on all or any of the charges on which [any accused person] has been tried, and is clearly of opinion that it is necessary for the ends of justice to submit the case [in respect of such accused person] to the High Court, he shall submit the case accordingly, recording the grounds of his opinion, and, when the verdict is one of acquittal, stating the offence which he considers to have been committed, [and in such case, if the accused is further charged under the provisions of Section 310, shall proceed to try him on such charge as if such verdict had been one of conviction].
[(1-A) If, in any such case, the Jurors are equally divided in opinion on all or any of the charges on which any accused person has been tried, the Judge shall submit the case in respect of such accused person to the High Court recording his opinion on such charge or charges and the grounds of his opinion, and in such case, if the accused is further charged under the provisions of Section 310, he shall proceed to try him on such charge as if the verdict of the Jury had been one of conviction.]
(2) Whenever the Judge submits a”case under this section, he shall not record judgment of acquittal or of conviction on any of the charges on which [such accused] has been tried, but he may either remand [such accused] to custody or admit him to bail.’
(3) In dealing with the case so submitted the High Court may exercise any of the powers which it may exercise on an appeal, and subject thereto it shall, after considering the entire evidence and after giving due weight to the opinions of the Sessions Judge and the jury, acquit or convict [such accused] of any offence of which the Jury could have convicted him upon the charge framed and placed before it ; and) if it convicts him, may pass such sentence as might have been passed by the Court of Session.
SECTION 308: Re-trial of accused after discharge of Jury:
Whenever the Jury is discharged, the accused shall be detained in custody or on bail (as the case may be), and shall be tried by another Jury unless the Judge considers that he should not be re-tried) in which case the Judge shall make an entry to that effect on the charge, and such entry shall operate as an acquittal.
SECTION 309: Judgment in cases tried by the Judge himself:
Notes In a case where all that the assessors have done was to have expressed their opinion about the whole case in a general manner, and no opinion has been called from them, the conviction and sentence of the accused must beset aside. 1959 Cr LJ186; AIR 1959 J and K 11. Under unamended Section 309, Cr. P. Code, the Sessions Judge is bound to record the opinion of each assessor in respect of all the charges for which the accused had been tried and in case of failure it would be sufficient to vitiate the trial, 1960 Cr LJ 1208: AIR 1960 J and K 116.
(1) When in a case tried by the Judge himself, the case for the defence and the prosecutor’s reply (if any), are concluded, the Judge shall give a judgment in the case.
(2) If the accused is convicted, the Judge shall, unless he proceeds in accordance with the provisions of Section 562, pass sentence on him according law.]
SECTION 310: Procedure in case of previous conviction:
[In the case of’ a trial by a Jury [or by the Judge himself j when the accused is charged with an offence and further charged that he is by reason of a previous conviction liable to enhanced punishment or to punishment of a different kind for such subsequent offence, the procedure prescribed by the foregoing provisions of this chapter shall be modified as follows, namely
(a) Such further charge shall not be read out in Court and the accused shall not be asked to plead thereto, nor shall the same be referred to by the prosecution, or any evidence adduced thereon unless and until, (i) he has been convicted of the subsequent offence, or [(ii) in the case of atrial by a Jury, the Jury have delivered their verdict on the charge of the subsequent offence].
(b) In the case of a trial [held by the Judge himself], the Court may, in its discretion, proceed or refrain from proceeding with the trial of the accused on the charge of the previous conviction],
SECTION 311: When evidence of previous conviction may be given:
Notwithstanding in the last foregoing section, evidence of the previous conviction may be given at the trial for the subsequent offence, if the fact of the previous conviction is relevant under the provisions of the Indian Evidence Act, 1872. Note It is an elementary principle of criminal jurisprudence that the previous convictions of an accused are not relevant and cannot be proved unless the prosecution prays under Section 75, Penal Code, for an enhancement of the sentence or unless the good character of the accused is relevant under Section 54 of the Evidence Act. 1959 Andh LT 851 : 1960 Cr LJ 1302 : AIR 1960 AP 490.
SECTION 312: Number of special Jurors:
[ State Amendments MAHARASHTRA (1) (i) In the heading J(a) after the words “High Court” insert the words “and the Court of Sessions for Greater Bombay”, and (b) substitute for the words “that Court” the words “such Court”. (ii) I” Section 312 after the word “list” insert the words “for the High Court and the Court of Sessions for Greater Bombay”. (Bombay Act 32 of 1948, Ss. 13 and 14). (2) After the reorganigation of the State of Bombay in 1956, the amendments made in Section 312 by the above-mentioned Bombay Act are extended to the newly added areas of Hyderabad, Kutch and Saurashtra and the region of Vidarbha as from 1-9-1959 by Born. Act XCVII of 1958. TAMIL NADU Omit the heading “J-list of Jurors for High Court, and summoning Jurors for that Court”, arid the provisions thereunder, namely Sections 312 to 318 (both inclusive). (Madras Act 34 of 1955, S. 24).
(1) The High Court may prescribe the number of persons whose names shall be entered at any one time in the special Juror’s list : * * * * * *]
SECTION 313: List of common and special Jurors:
States Amendments A. P. AND TAMIL NADU Omit Section 318.
(1) The [Clerk of the [state] shall, before the first day of April in each year, and subject to such rules as the High Court from time to time prescribes, prepare- (a) a list of all persons liable to serve as common Jurors ; and (b) a list of persons liable to serve as special jurors only.
(2) Regard shall be had, in the preparation of the latter list, to the property, character and education of the persons whose names are entered therein.
(3) No person shall be entitled to have his name entered in the special Jurors’ list merely because he may have been entered in the special Jurors’ for a previous year.
[(4) The State Government may exempt any salaried servant of the gowernment from serving as a Juror.]
Discretion of officer preparing lists.- (5) The [Clerk of the State] shall, subject to such rules as aforesaid, have full discretion to prepare the said list as seems to him to be proper, and there shall be no appeal from, or review of, his decision.
SECTION 314: Publication of lists, preliminary and revised:
States Amendments A. P. AND TAMIL NADU Omit Section 314
(1) Preliminary lists of persons liable to serve as common Jurors and as special Jurors, respectively, signed by the [Clerk of the State], shall be published once in the Official Gazette before the fifteenth day of April next after their preparation.
(2) Revised lists of persons liable to serve as common Jurors and special Jurors respectively, signed as aforesaid, shall be published once in the Official Gazette before the first day of May next after their preparation.
(3) Copies of the said lists shall be affixed to some conspicuous part of the court-house.
SECTION 315: Number of Jurors to be summoned:
State Amendments A. P. (Added Territories) : Omit Section 315. GUJARAT Same as that of Maharashtra (1) except for the words “Greater Bombay” substitute “City of Ahmedabad”. MAHARASHTRA (1) For the words “in the town which is the usual place of sitting of each High Court substitute the words ”of the High Court in the town which is the usual place of sitting of such High Court and for each Sessions of the Court of Session for Greater Bombay”. (2) After the reorganization of the State of Bombay in 1956, the amendment made in Section 315 by the above-mentioned Bombay Act is extended to the newly added areas of Hyderabad, Kutch and Saurashtra and tUe region of Vidarbha, as from 1-9-1959 by Bom. Act XCVH of 1958. TAMIL NADU Omit Section 315.
(1) Out of the persons named in the revised lists aforesaid, there shall be summoned for each Sessions [in the town which is the usual place of sitting of each High Court], [as many of those who are liable to serve on special or common Juries respectively as the [Glerk of the State] considers necessary].
(2) No person shall be so summoned more than once in six months unless the number cannot be made up without him.
Supplementary summons.-(3) If, during the continuance of any sessions, it appears that the number of persons so summoned is not sufficient such number as may be necessary of other persons liable to serve as aforesaid shall be summoned for such Sessions.
SECTION 316: Summoning Jurors outside the place of sitting of High Courts:
Whenever a High Court has given notice of its intention to hold sittings at any place outside the ^ [town which is the usual place of sitting of such High Court] for the exercise of its original criminal jurisdiction, the Court of Session at such place shall, subject to any direction which may be given by the High Court, summon a sufficient number of Jurors from its own list, in the manner hereinafter prescribed for summoning Jurors to the Court of Session, State Amendments A. P. (Added Territories).-Amendment made by Madras Act 34 of 1955 shall be repealed, TAMIL NADU Omit S. 316
SECTION 317: Military jurors:
State Amendmente A.P. (Addtd Territories).-Amendment made by Madras Act 34 of 1955 shall be repealed. TAMIL NADU Omit S.317.
(1) In addition to the persons so summoned as jurors, the said Court of Session shall, if it thinks needful, after communication with the Commanding Officer, cause to be summoned such number of commissioned and non-commissioned officers in [the Indian] Army [or Air Force ] resident within ten miles of its place of sitting as the Court consi- der to be necessary to make up the juries required for the trial of persons charged with offences before the High Court as aforesaid.
(2) All officers so summoned shall be liable to serve on such juries not- withstanding anything contained in this Code; but no such officer shall be summoned whom his Commanding Officer desires to have excused on the ground of urgent [official] duty, or for any other special [official] reason.
SECTION 318: Failure of jurors to attend:
Any person summoned under Section 315, Section 316 or Section 317, who) without lawful excuse, fails to attend as required by summons, or who, having attended, departs with- out having obtained the permission of the Judge, or fails to attend after an adjournment of the Court after being ordered to attend, shall be deemed guilty of a contempt and be liable, by order of the Judge, to such fine as he trinks fit; and, in default of payment of such fine, to imprisonment for a term not exceeding six months in the civil jail until the fine is paid : ‘Provided that the Court may in its discretion remit any fine or imprisonment so imposed. State Amendments A.P.(Addtd Territories).-Amendment made by Madras Act 34 of 1955, shall be repeated. TAMIL NADU Omi S 318.
SECTION 319: Liability to serve as jurors:
All * * * persons between the ages of twenty-one and sixty shall, except as next hereinafter mentioned, be liable to serve as jurors’* * * at any trial held within the district in which they reside, or, if the State Government on consideration of local circumstances, has fixed any smaller area in this behalf, within the area so fixed. State Amendments ‘Same as that of Maharagtra (1), except for the words “Greater Bombay”, substitute City of Ahmedabad”. MAHARASHTRA (1). – In the heading ‘K.’ on top of Section 319, after the words “Court of Session” he words “other than the Court of Session for Greater Bombay”. (Bombay Act 32 of S.16. (2) After the reorganisation of the State of Bombay in 1956, the amendment made in Section 319 by the above-mentioned Bombay Act is extended to the newly added areas of Hyderabad, Kutch and Saurashtra and the region of Vidarbha, as from 1-9-1959 by Born. Act XCVII of 1958.
SECTION 320: Exemptions:
The following persons are exempt from liability to serve as jurors * * *, namely ‘
(a) officers in civil employ superior in rank to a District Magistrate; ” (aa) members of Parliament or members of the Legislature of any * * * State;]
(b) salaried Judges ;
(c) Commissioners and Collectors of Revenue or Customs ;
(d) Police-Officers and persons engaged in the Preventive Service in the Customs Department;
(e) persons engaged in the collection of the revenue whom the Collecter thinks fit to exempt on the ground of official duty;
(f) persons actually officiating as priests or ministers of the respective religions;
(g) persons in [the Indian] Army, [Navy], [or Air Force] except when, by any law in force for the time being, they are specially made liable to serve as jurors * * * ;
(h) Surgeons and others who openly and constantly practise the medical profession;
(i) Legal practitioners (as defined by the (Legal Practitioners Act, 1879), in actual practice ;
(j) persons employed in the Post-Office and Telegraph Departments;
(k) persons exempted from personal appearance in Court under the provisions of the Code of Civil Procedure, Sections 640 and 641;
(1) other persons exempted by the State Government from liability I serve as jurors * * *
SECTION 321: List of jurors:
States Amendments A. P. (Added Territories)-.Amendment made by Madras Act 34 of 1955 is repealed. , TAMIL NADU In sub-section (1) oF Section 321, after the words “Collector of the district” insert the brackets and words “(or the Collector of Madras in the Presidency-town of Madras)”. WEST BENGAL Section 321 shall be construe) in its application to the City Sessions Court to be establiahed at Calcutta as if reference therein to assessors was omitted and reference to the Collector was a reference to the Chief Presidency Magistrate, Calcutta. (W. B. Act 20 of 1953, S.9).
(1) The Sessions Judge, and the Collector of the district or such other officer as the State Government appoints in this behalf shall prepare and make out in alphabetical order, a list of persons liable to serve as jurors * * * and qualified in the judgment of the Sessions Judge and Collector or other officer as aforesaid to serve as such, and not likely to be successfully objected to under Section 278, clauses (b) to (h), both inclusive.
(2) The list shall contain the name, place of abode and quality or business of every such person ; ** * *
SECTION 322: Publication of list:
Copies of such list shall be stuck up in the office of the Collector or other officer as aforesaid, and in the court-houses of the District Magistrate and of the District Court, and extracts therefrom in some conspicuous place in the town or towns in or near which the persons named in the extract reside. State Amendments A.P.({Added Territories).-Amendment made by Madras Act 34 of 1955 is repealed. TAMIL NADU . In Section 322. after the words “in the Court houses of the District Magistrate and of the District Court”, insert the words “or, as the case may be, of the Chief Presidency Magistrate and of the Sessions Court”. Madras Act 34 of 1955, S. 26). WEST BENGAL Section 322 shall be construed in its application to the City Sessions Court to be established at Calcutta as if reference therein to the District Magistrate was a reference to Chief Presidency Magistrate, Calcutta, and the reference to the District Court was a reference to the City Sessions Court”. {W. B. Act 20 of 1953, S. 9).
SECTION 323: Objections to list:
To every such copy or extract shall be sub- joined a notice staling that objections to the list will be heard and determined he Sessions Judge and Collector or other officer as aforesaid, at the Sessions court-house, and at a time to be mentioned in the notice. State Amendment WEST BANGAL Stetion 323 shall be construed in its application to the City Sessions Court to be estabilished at Calcutta as if reference therein to the Collector was a reference to the Chief Presidency Magistrate, Calcutta. (W. B. Act 20 of 1953, S. 9).
SECTION 324: Revision of list:
State Amendment WEST BENGAL I Section 324 shall be construed in its application to the City Sessions Court to be established at Calcutta as if references therein to assessor were omitted and reference to the Collector was reference to the Chief Presidency Magistrate, Calcutta. (W. B. Act 20 of 1953, S. 9).
(1) For the hearing of such objections the Ses- sions judge shall sit with the Collector or other officer as aforesaid and shall, at the tirne and place mentioned in the notice) revise the list and hear the objections (if any) of persons interested in the amendment thereof, and shall strike out the name of any person not suitable in their judgment to serve as a juror * * * or who iray establish his right to any exemption from service given by Section 320 and insert the name of any person omitted from the list whom they deem qualified for such service.
(2) In the event of a difference of opinion between the Sessions Judge the Collector or other officer as aforesaid, the name of the proposed juror * * * * shall be omitted from the list.
(3) A copy of the revised list shall be signed by the Sessions Judge and Collector or other officer as aforesaid and sent to the Court of Session.
(4) Any order of the Sessions Judge and Collector or other officer as aforsaid preparing and revising-the list shall be final.
(5) Any exemption not claimed under this section shall be deemed to be waived the list is next revised.
(6) Annual revision of list.-The list so prepared and revised shall be again revised once in every year.
(7) The list so revised shall be deemed a new list and shall be subject to all the rules hereinbefore contained as to the list originally prepared.
SECTION 325: Preparation of list of special jurors:
In the case of any dist- rict for which the State Government has declared that the trial of certain offences shall, if the Judge so direct, be by special jury, the Sessions Judge and the Collector of such district or other officer as aforesaid shall prepare, in addition to the revised list hereinbefore prescribed, a special list containing the names of such jurors as are borne on the revised list and are, in the opinion of such Sessions Judge and Collector or other officer as aforesaid, by reason of their possessing superior qualifications in respect of property, character or education, fit persons to serve as special jurors : Provided always that the inclusion of the name of any person in such special list shall not in- volve the removal of his name from the revised list nor relieve him of liability to serve as an ordinary juror in cases not tried by special jury. State Amendments A. P. (Added Territories).-Amendment made by Madras Act, 34 of 1955 ii repealed. TAMIL NADU In Section 325, after the words “any district”, the brackets and words “(including the Presidency-town of Madras)” and after the words “the Collector of such district” insert the brackets and words “(or the Collector of Madras in the Presidency-town of Madras)”. (Mad Act 34 of 1955, S.27). WEST BENGAL Section 325, shall be construed in its application to the City Sessions Court to be established at Calcutta as if reference therein to the Collector was reference to the Chief Presidency Magistrate, Calcutta. (W. B. Act 20 of 1953, S. 9).
SECTION 326: District Magistrate to summon jurors:
State Amendments A. P. (Added Territories).- Amendment made by Madras Act 34 of 1955 is repealed. SameasthatofMaharashtra(l) except for the words “Greater Bombay” substitute “City ofAhmedabad”. MAHARASHTRA (1) In Section 326- (i) for the words beginning with the words “The Sessions Judge shall” and ending with words “requesting him to” substitute the words “The Sessions Judge or such Judicial Magistrate as he may appoint in this behalf shall ordinarily, seven days at least before the day which the Sessions Judge may from time to time fix for holding the sessions” ; (ii) in the marginal note, for the words “District Magistrate” substitute the words “Sessions Judge or Judicial Magistrate”. (Bom. Act 21 of 1954, S. 3 and (2) After the reorganisation of the State of Bombay in 1956, the amendments made in Section 326 by the above-mentioned Bombay Act are extended to the newly addtd areas of Hyderabad, Kutch and Saurashtra and the region of Vidarbha as from 1-9-1939 by the Bombay Act XCVII of 1958. RAJSTHAN (Abu area) Same as that of Maharashtra (1). TAMIL NADU In sub-section (1) of Section 326, after the words “District Magistrate” insert the words or in the Presidency-town of Madras, the Chief Presidency Magistrate’ ‘ .(Madras Act 34 of Section 326 shall be construed in its application to the City Sessions Court to be established at Calcutta as if reference therein to a Sessions were omitted and reference to the District Magistrate was reference to the Chief Presidency Magistrate Cal- cutta (W. B. Act 20 of 1953, S. 9).
(1) The Sessions Judge shall ordinarily, seven days at least before the day which he may from time to time fix for holding the sessions, send a letter to the District Magistrate requesting him to summon as many persons named in the said revised list or the said special list as seem to the Sessions Judge to be needed for trials by jury ^* * * at the said sessions, the number to be summoned not being less than double the number required for any such trial. * * * * * * *
(2) The names of the persons to be summoned shall be drawn by lot in open Court, excluding those who have served within six months unless the number cannot be made up without them; and the names so drawn shall be specified in the said letter. * * * * * *
SECTION 327: Power to summon another set of jurors:
The Court of Session may direct jurors * * * to be summoned at other periods than the period specified in Section 326, when the number of trials before the Court renders the attendance of one set of jurors ** * *for a whole session oppressive or whenever for other reasons such direction is found to be necessary.
SECTION 328: Form and contends of summons:
Every summons to a juror ** * shall be in writing, and shall require his attendance as a juror ** * at a time and place to be therein specified.
SECTION 329: When Government or Railway servant may be excused:
When any person summoned to serve as juror * * * is in the service of the Government or of a Railway Company, the Court to serve in which he is so summoned may excuse his. attendance if it appears on the representation of the head of the office in which he is employed that he cannot serve as a juror *****, without inconvenience to the public.
SECTION 330: Court may excuse attendance of juror:
(1) The Court of Session may for reasonable cause excuse any juror * * * from attendance at any particular session.
Court may relieve special jurors from liability to serve again as jurors for twelve months.-(2) The Court of Session may, if it shall think fit, at the conclusion of any trials by special jury, direct that the jurors who have served on such jury shall not be summoned to serve again as jurors for a period of twelve months.
SECTION 331: List of jurors attending:
(1) At each sessions the said Court shall cause to be made a list of the names of those who have attended as jurors * * * at such session,
(2) Such list shall be kept with the list of the jurors * * * as revised g under Section 324.
(3) A reference shall be made in the margin of the said revised list to each of the names which are mentioned in the list prepared under this section.
SECTION 332: Penalty for non-attendance of juror:
State Amendments A. P. {Added Temtories) Amendments made by Madras Act 34 of 1955 are repeated, TAMIL NADU. In sub-section (2), after the words “District Magistrate” insert the words “or in the Pre- sidency-town of Madras, the Chief Presidency Magistrate”. (Madras Act 34 of 1955, S. 29). – WEST BENGAL, Section 332 shall be construed in its application to City Sessions Court to be established at Calcutta as if references therein to assessor were omitted, and a reference to the District Magistrate was a reference to the Chief Presidency Magistrate, Calcutta. (W. B. Act 20 of 1953. S. 9).
(1) Any person sum- moned to attend as juror * * * who, without lawful excuse, fails to attend as required by summons, or who, having attended, departs without having obtained the permission of the Court, or fails to attend after an adjournment of the Court, after being ordered to attend, shall be liable by order of the Court of Session to a fine not exceeding one hundred rupees.
(2) Such fine shall be levied by the District Magistrate by attachment and sale of any movable property belonging to such juror * * * within the local limits of the jurisdiction of the Court making the order.
(3) For good cause shown, the Court may remit or reduce any fine so imposed.
(4) In default of recovery of the fine by attachment and sale, such juror 90* * * may, by order of the Court of Session) be imprisoned in the civil jail for the term of fifteen days, unless such fine is paid before the end of the said term.
SECTION 333: Power of Advocate of Advocate-General to stay prosecution:
At any stage of any trial before a High Court under this Code, before the return fo the verdict, the Advocate-General may, if he thinks fit, inform the Court on behalf of Government that he will not further prosecute the defendant upon the charge; and thereupon all proceedings on such charge against the defendant shall be stayed, and he shall be discharged of and from the same. But such discharge shall not amount to an acquittal unless the presiding Judge otherwise directs. States Amendments A. P. {Added Territories) Amendments made by Madras Act 34 of 1955 are repealed. (i) In the heading “L” at the top of Section 333 after the words “High Court” insert the words “and the Court of Session for Greater Bombay”. (Bom. Act 32 of 1948, S.17). (ii) After the words “before a High Court” in Section 333 insert the words “or the Court of Session for Greater Bombay”. (Ibid. S. 18). (2) After the reorganisation of the State of Bombay in 1956, the amendment made in the heading “L.” and Section 333 by the above-mentioned Bombay Act are extended to the newly added areas of Hyderabad, Kutch and Saurashtra and the region of Vidarbha as from 1-9-1959 by the Bom. Act XCVII of 1958. TAMIL NADU Omit the heading “L-Special Provisions for High Courts” and the provisions thereunder, namely, Sections 333, 334 and 335. (Madras Act 34 of 1955, S. 24).
SECTION 334: Time of holding sittings:
For the exercise of its original criminal jurisdiction, every High Court shall hold sittings on such days and at such convenient intervals as the Chief Justice of such Court from time to time States Amendments A. P. (Added Territories) Amendments made by Madras Act 34 of 1955 are repealed. Omit Section 334.
SECTION 335: Place of holding sittings:
States Amendments A. P. (Added Territories) Amendments made by Madras Act 34 of 1955 are repeated. Omit Section 335, (Madras Aft 34 of 1955, S. 24).
(1) The High Court shall hold its sittings at the place at which it now holds them, or at such other place (if any) as the State Government may direct.
(2) But it may, from time to time * * *with the consent of the State Government, hold sittings at such other places within the local limits of its appellate jurisdiction as the High Court appoints.
Notice of sittings.-(3) Such officer as the Chief Justice directs shall give notice beforehand in the Official Gazette of all sittings intended to be held for the exercise of the original criminal jurisdiction of the High Court.
SECTION 336:
Place oftrial ofEuropean British subjects-[Repealed by the Criminal Law Amendment Act, 1923 (12 of 1923), S. 20.
CHAPTER 24: GENERAL PROVISIONS, AS TO INQUIRIES AND TRIALS:
SECTION 337: Tender of pardon to accomplice:
State Amendments A. P. (Added Territories) Amendments made by Madras Act 34 of 1955 is repealed. GUJARAT. Same as that ofMaharashtra(l), except for the words “Greater Bombay” substitute “city of Ahmedabad”. MAHARASHTRA. (1) In the Proviso io sub-section (1)- (i) delete the words “other than the District Magistrate” ; and (ii) for the words “Sanction of the District Magistrate” substitute the words “Sanction of the Session Judge.” (2) After the reorganisation of the State of Bombay in 1956, the amendments made in Section 337 by the above-mentioned Bombay Act are extended to the newly added areas of Hyderabad, Kutch and Saurashtra and the region of Vidarbha as from 1-9-1959 by the lorn. Act XCVII of 1958. MYSORE In the proviso to sub-section (1). (a) Omit the words “other than the District Magistrate” ; and (b) for the words “sanction of the District Magistrate” substitute the words “sanction of the Sessions Judge”. PUNJAB, HARYANA and CHANDIGARH (i) in sub-section (1), for the words “a Presidency Magistrate, a Sub-divisional Magistrate or any Magistrate of the first class,” the words “a Chief Judicial Magistrate, a Sub-divisional Magistrate or any Judicial Magistrate of the first class” shall be substituted, and (ii) in the proviso to sub-section (1), for the words “District Magistrate”,occurring twice, the words “Chief Judicial Magistrate” shall be substituted. RAJASTHAN (Abu Area) Same as that of Maharashtra (1). TAMIL NADU In Section 337. (1) in sub-section (1) omit the words “High Court or”; (2) in sub-section (2-A) omit for words or “High Court, as the case may be”. WEST BENGAL The West Bengal Cr. Law Amendment (Special Courts) Act 21 of 1949 has affected certain provisions of the Cr. P. Code. The relevant sections of the Act are reproduced 4. Offences to be tried by Special Courts.-(1) Notwithstanding any thing contained in the Code of Criminal Procedure, 1898, or in any other law, the offences specified in the schedule shall be triable by Special Courts only : Provided that when trying any case, a Special Court may also try any offence other than an offence specified in the schedule, with which the accused may under the Code of Criminal Procedure, 1898, be charged at the same trial. (1a) Sub-section (2b) of Section 337 of the Code of Criminal Procedure, 1898, shall not apply and shall be deemed never to have applied to West Bengal. (2) The distribution amongst Special Courts of cases involving offences specified in the Schedule, to be tried by them, shall b made by the State Government. (3) If at any time the State Government thinks fit so to do, it may withdraw any case from any Special Court and transfer the same to any other Special Court for disposal : Provided that where in any case the offence has, under sub-section (1) of Section 5, been taken cognizance of by a special court, such case shall not be so withdrawn or transferred. 5. Procedure and powers of Special Courts,-(1) A Special Court may take cognizance of offences, in the manner laid down in clauses (a) and (b) of sub-section (1) of Section 190 of the Code of Criminal Procedure, 1898, with the accused being com- mitted to his court for trial, and in trying accused persons, shall follow Ihe procedure prescribed by the Code of Criminal Procedure, 1898, for the trial of warrant cases by Magistrates, instituted otherwise than on a police-report : Provided that a Special Court shall not be bound to adjourn any trial for any purpose unless such adjournment is, in its opinion, necessary in the interests of justice : Provided further that for the purpose of sub-section (1) of Section 356 of the Code, English shall be deemed to be the language of a Special Court and where under the provisions of that sub-section, the evidence of witness is taken down in the presence and hearing and under the personal direction and superintendence of a judge presiding over a Special Court and not by such judge himself, the provisions of sub-section (3) of Section 356 shall not apply. (1a) A Special Court may, with a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in, or privy to, any offence, tender a pardon to such person on condition of his making a full and true discloser of the whole circumstances within his knowledge relating to the offence and to every other person concerned, whether as principal or abettor, in the commission thereof; and any pardon so tendered shall, for the purposes of Sections 339 and 339A of the Code of Criminal Procedure, 1898, be deemed to have been under Section 338 of that Code. (2) Save as provided in sub-section (1) or sub-section (1a), the provisions of the Code of Criminal Procedure, 1898, shall, so far as they are not inconsistent with this Act, apply to the proceedings of a Special Court; and for the purposes of the laid provisions, a Special Court shall be deemed to be a Court of Session trying cases without a jury and a person conducting a prosecution before a special Court shall be deemed to be a Public Prosecutor. (3) A Special Court may pass any sentence authorised by law. 5-A. Jurisdiction of Magistrates for certain purposes not to cease.-Nothing in Section 4 or Section 5 shall affect the jurisdiction and powers of Magistrates under the Code of Criminal Procedure, 1898) during the investigation by the police under the said Code of offences specified in the Schedule. 6. Appeal and Revision.-The High Court may, subject to the provisions of Section 7 regarding transfer of cases, exercise, so far as they may be applicable all the powers conferred by Chapters XXXI and XXXII of the Code of Criminal Procedure, 1898, on a High Court as if a Special Court were a Court of Session trying cases without* jury within the local limits of the High Court’s jurisdiction. 7. Bar to certain jurisdiction.-No court shall have jurisdiction to transfer any case from a Special Court or, save as provided in Section 6, have any jurisdiction of any kind in respect of proceedings of a Special Court. UNION TERRITORIES (EXCEPT CHANDIGARH) In Section 337, in sub-section (1), (i) in the opening paragraph, for the words “a Presidency Magistrate, a sub-divisional Magistrate”, substitute the words “the Chief Judicial Magistrate” (12) for the proviso, substitute the following proviso, namely : “Provided that where the offence is under inquiry or trial, no Magistrate of the first class other than the Chief Judicial Magistrate shall exercise the power hereby conferred unless he is the Magistrate making the inquiry or holding the trial, and where the offence is under investigation, no Magistrate of the first class other than the District Magistrate or the Chief Judicial Magistrate shall exercise the power unless he is the Judicial Magistrate having jurisdiction in a place where the offence might be inquired into or tried and the sanction of the Chief Judicial Magistrate has been obtained to the exercise thereof.” Notes Section 8(2) of the Criminal Law Amendment Act (1952), does not affect the general provisions contained in Section 337(1) of the Cr. P. Code regarding tender of pardon to an accomplice. 61 Bom LR 591: 1959 CrLJ 1153: AIR 1959 Bom 437. . According to Section 337, it is not necessary that the person to whom pardon is to be granted, should be an accomplice or that he should have implicated himself in the offence. 1960 Cr LJ 989 : AIR 1960 Punj 364. Section 5 of Official Secrets Act, read with Section 120-B of 1. P.O., does not fall within any of the three categories of offences mentioned in Section 337(1), Cr. P. Code, where pardon can only by tendered. 1 Ker LR 203:1960 Cr LJ 524: AIR 1960 SC 360. To tests for acceptance of approver’s evidence It was held by the Supreme Court in Sarwan Singh v. State of Punjab, 1957SCR953: AIR 1957 SC 637, that an approver’s evidence to be accepted must satisfy two tests. The first test to be applied is that his evidence must show that he is a reliable witness, and that pa test which is common to all witnesses. The test obviously means that the Court should find that there is nothing inherent or improbable in the evidence given by the approver, and lift there is no finding that the approver has given false evidence. The second test which thereafter still remains to be applied in the case of an approver and which is not always necessary when judging the evidence of other witnesses, is that his evidence must receive suffient corroboration. Lacchhi Ram v. State of Punjab, AIR 1967 SC 792 at 794, 795. See also notes under S. 169, AIR 1968 SC 938.
[(1) In the case of any; offence triable exclusively by the High Court or Court of Session, or any offence punishable with imprisonment [which may extend to seven years or any offence under any of the following sections of Indian Penal Code,; namely, Sections [161, 165, 165-A] 216-A, 369, 401, 435and 477-A, the District Magistrate, a Presidency Magistrate, a Sub-divisional Magistrate or any Magistrate of the first class may, at any stage of the investigation or inquiry into, or the trial of the offence, with a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in or privy to the offence, tender a pardon to such person on condition of his making a full and true disclosure of the whole of the circumstances within his knowledge relative to the offence and to every other person concerned, whether as principal or abettor, in the commission thereof : Provided that, where the offence is under inquiry or trial, no Magistrat of the first class other than the District Magistrate shall exercise the power hereby conferred unless he is the Magistrate making the inquiry or holding the trial, and, where the offence is under investigation, no such Magistrate shall exercise the said power unless he is a Magistrate having jurisdiction in a place where the offence might be inquired into or tried and the sanction of the District Magistrate has been obtained to the exercise thereof.
(1A) Every Magistrate who tenders a pardon under sub-section (1) shall record his reasons for so doing, and shall, on application made by the accused, furnish him with a copy of such record : Provided that the accused shall pay for the same unless the Magistrate for some special reason thinks fit to furnish it free of cost].
(2) Every person accepting a tender under this section shall be examined as a witness in [the Court of the Magistrate taking cognizance of the offence and in the subsequent trial, if any].
[(2A) In every case where a person has accepted a tender or pardon and has been examined under sob-section (2), the Magistrate belore whom the proceedings are pending shall, if he is satisfied that there are reasonable grounds for believing that the accused is guilty of an offence, commit him for trial to the Court of Session or High Court, as the case may be.]
[(2-B) In every case where the offence is punishable under (S. 161 of the Income tax Act, 1961) or (Section 165) or (S. 165A of the Indian Penal Code, 1860) or sub-section (2) of (S. 5 of the Prevention of Corruption Act, 1947), and where a person has accepted tender of pardon and has been examined under sub-section (2) then, notwithstanding anything contained in sub-section (2-A), a Magistrate shall, without making any further inquiry, send the case for trial to the Court of the Special Judge appointed under the Criminal Law Amendment Act, 1952.]
(3) Such person, [unless he is already on bail], shall be detained in custody until the termination of the trial * * *. *****
SECTION 338: Power to direct tender of pardon:
At any time after commit- ment, but before judgment is passed, the Court to which the commitment is made may, with the view of obtaining on the trial the evidence of any person supposed to have been directly or indirectly concerned in, or privy to, any such offence, tender, or order the Committing Magistrate or the District Magistrate to tender, a pardon on the same condition to such person. States Amendments UNION TERRITORIES (EXCEPT CHANDIGARH) Insection 338, for the words “District Magistrate”, substitute the words “Chief Judicial Magistrate”. WEST BENGAL In Section 338, for the words ‘the District Magistrate’, substitute the words “the Sub” divisional Judicial Magistrate”.
SECTION 339: Commitment of person to whom pardon has been tendered:
— – Note A mere tender of pardon unless it has been accepted by the person, does not attract the provisions of Section 339. 1959 Mad LJ (Cr) 115-1959 Cr LJ 102-AIR 1959 SC 13.
(1) Where a pardon has been tendered under Section 337 or Section 338 and the Public Prosecutor certifies that in his opinion] any person who as accepted such tender has, either by wilfully concealing anything essential or by giving false evidence, not complied with the condition on which the under was made [such person may be] tried for the offence in respect of which the pardon was so tendered, or for any other offence of which he apars to have been guilty in connection with the same matter : [Provided that such pers)n shall not be tried jointly with any of the other accused, and that he shall be entitled to plead at such trial that he has complied with the conditions upon which such tender was made in which case it shall be for the prosecution to prove that such conditions have not been complied with.]
(2) The statement made by a person who has accepted a tender of pardon may be given in evidence against him [at such trial].
(3) No prosecution for offence of giving false evidence in respect of such statement shall be entertained without the sanction of the High Court.
SECTION 339A: Procedure in trial of person under Section 339:
[ State Amendments A. P. (Added Trmtories) Amendments made by Madras Act 34 of 1955 are repealed. TAMIL NADU In sub-section (1) (a), omit the words “High Court or”.
(1) The Court trying under Section 339 a person who has accepted a tender off pardon shall- (a) if the Court is a High Court or Court of Session, before the charge is read out and explained to the accused under Section 271, sub-section (1), and (b) if the Court is the Court of a Magistrate, before the evidence of the witnesses for the prosecution is taken, ask the accused whether he pleads that he has complied with the conditions on which the tender of the pardon was made.
(2) If the accused does so plead, the Court shall record the plea and proceed with trial and the jury, or the Court, ** * * or the Magistrate, as the case may, be, shall, before judgment is passed in the case, find whether or not the accused he has complied with the conditions of the pardon, and if it is found that he has so complied, the Court shall, notwithstanding anything contained in this Code, pass judgment of acquittal.]
SECTION 340: Right of person against whom proceedings are instituted to be defended and his competency to be a witness:
[ State Ameadment PUNJAB Section 38(3) of the East Punjab Public Safety Act V of 1949 provides that purpose of trial under that Act the following shall be deemed to have been added to Section 340 as sub-section (3). “(3) If it appears to the court that any accused person has had a reasonable opportunity of engaging a pleader and has neglected or omitted to do so, and if, in the opinion of the court, it is necessary for the purposes of justice that such accused should be defended by pleader, the Court may direct any person appointed to be a District Pleader, whose name appears in a panel maintained by the District Magistrate for this purpose, to appear before it and conduct the defence of the accused. Any person so directed shall receive remuneration according to a scale to be laid down by the Provin- ial Government and sums so paid to him may, if the District Magistrate so directs, be recovered from the accused as an arrear of Land revenue.” Notes Section 340(1) has no bar to the exercise of the inherent powers of the High Court under Section561-A invoked to prevent abuse of process of court. 1959 All LJ 94: 1959 Cri LJ 1040: AIR 1959 All 559. Where the evidence is of a formal nature which the defence counsel could have given, application for the prosecution to compel him to withdraw from the case was most mischievous and without good faith and should be disallowed. 1958 Ker LT 1142 : 1959 Cri LJ 474: AIR 1959 Ker 119.
(1) Any person accused of an offence before a Criminal Court, or against whom proceeding are instituted under this Code in any such Court, may of right be defended by a pleader.
(2) Any person against whom proceedings are instituted in any such Court under Section 107, or under Chapter X, Chapter XI, Chapter XII or Chapter XXXVI, or under Section 552, may offer himself as a witness in such proceedings.]
SECTION 341: Procedure where accused does not understand proceedings:
If the accused, though not insane, cannot be made to understand proceedings, the Court may proceed with the inquiry or trial ; and in the case of a Court other than a High Court, if such inquiry results in a commitment or if such trial results in a conviction, the proceedings shall be forwarded to the High Court with a report of the circumstances of the case, and the High Court shall pass thereon such order as it thinks fit. State Amendments A.P (Added Territories) Amendments made by Madras Act 34 of 1958 are repeated. TAMIL NADU In Section 341, omit the words “in the case of a Court other than a High Court”. WEST BENGAL In sub-section (1): (i) for the words “if the Magistrate” substitute the words “if the Judicial Magistrate”; (ii) in the proviso, for the words ‘any Magistrate’ substitute the words ‘any Judicial Magistrate”. NOTES The Court, if it finds that the accused is unable to follow and understand the proceedings can proceed with the enquiry or trial and can commit the accused or convict him for the offence with which he is charged. In either of the two cases, the Court must refer the matter to the High Court under Section 341. Merely that an accused is deaf and dumb would not exempt him from punishment. 62 Bom LR 468: 1960 Cri LJ 1575: AIR 1960 Bom Before forwarding the case to the High Court, the Court must be satisfied that the accused cannot be made to understand the proceedings and the enquiry or trial must result in Commitment or a conviction. The engagement of a counsel is unmaterial. 1960 Cri LJ 1476 Mad LJ (Cri) 583 : AIR 1960 Mys 315. On the finding of the Magistrate that the accused understood proceedings, no reference can lie to the High Court. 1960 Cri LJ 91: 1960 MLJ (Cri) 60: AIR 1960 Mad 20. The Magistrate’s view that the accused being represented by a Counsel rendered it unnecessary to interpret the proceedings to the deaf and dumb accused is unwarranted unless it be that the counsel himself was in a position to interpret the proceedings to the accused and the Court of enquiry or trial can forward such proceedings to the High Court when it is satisfied that the accused cannot be made to understand such proceedings which will result in a commitment or a conviction. 1960 MLJ (Cri) 583.
SECTION 342: Power to examine the accused:
Notes Any defect in the examination of the accused under Section 342, Cr. P. C., amounted merely to an irregularity and was not such as to call for interference with the orders of the Courts below. 1961 (1) Cr LJ 315 : AIR 1961 SC 175. Section 342 ilself lays down in explicit terms that although an accused person cannot be compelled to answer a question put to him by the Court, the Court is free to draw an adverse inference on a failure to answer such a question. 1960 Cri LJ 1254: AIR 1960 Pat 430 (FB). If the cross-examination of the prosecution witnesses by the accused, whether before the charge or under Section 256, discloses material of an important nature against the accused, it is necessary to examine the accused under Section 342(1) with respect to that material 1960 Cri LJ 343: AIR 1960J and K 38. Where the Judge framed a series of questions, each question covering almost a whole page and the accused is called upon to answer them, this hardly serves the object underlying Section 342. 1960 Ker LJ 109 : 1960 Cri LJ 912 : AIR 1960 Ker 238. Statement under Section 342 before Committing Magistrate which is not read ovar to accused and neither brought on record before the Sessions Judge cannot be used against him 1961 All Cri R 393: 1961(1) CriLJ 400: AIR 1961 Mys 71. Filing of written statement by accused person need not always to be deprecated. AIR 1965 SC 97 : 1966 Cri LJ 82. Where the defence of the accused ii one of total denial it becomes unnecessary when questioning them again under Section 342 to put each material fact against them spoken to by the prosecution witnesses and get tneir explanation. It is sufficient to aak the accused persons to state what they have got to say against the prosecution evidence. 1960 Cri LJ 408: AIR 1960 Tri 14. An order of a Magistrate allowing the investigating officer to take the specimen writings and signatures of the acused person is violative of the fundamental right mentioned in Article 20(3) of the Constitution. 63 Cat WN 901: AIR 1960 Cal 32. Long question and questions which are committing or composite or complicated should not be put to the accused in his examination under Section 342; on the other hand this should be easily understandable. 1961 (1) Cri LJ252 : AIR 1961 Guj 20. The sole purpose of the examination of an accused person is to enable him to explain any circumstances appearing in the evidence against him. 1961 (1) Cri LJ252: AIR 1961 Where the accused has been exempted from personal apperance, h er pleader could be examined under Section 342, Cr. P. Code and it is not necessary to enforce presence of accused for that purpose, but court can, no doubt, enforce personal attendance. (1960) MR LJ (Notes) 81. The Judge should award full liberty to the accused to explain all the incriminating Circumstances which he is likely to use in support of his conviction and if he fail to do so, that will cause prejudice to the accused enough to vitiate the trial. 1959 Andh LT 851; 1960 1302 : AIR 1960 Andh Pra 490. Answers of accused under Section 342, Cr. P. Code are not strictly evidence as it is understood though they may be taken into consideration. 1960 Cri LJ 596: AIR 1960 Ker 153. Where a new case is presented by the prosecution witnessess, the Magistra cannot base his conviction on such evidence unless he puts the newly developed case to the accused in questioning and gives them a chance to explain and adduce further defence if necessary. In case of such omission on the part of the Magistrate, failure of justice is caused and the entire trial vitiated AIR 1960 Tri 40. In a case of omission on the part of the Magistrate to question the accused under Section 342, but he detects his mistake before delivery of judgment and immediately questions the accused and gives opportunity to defence to examine further witnesses but defence not availing opportunity, there is no failure of justice and defect is cured by Section 537 and trial in not vitiated AIR 1960 Tri 40. The Examination of the accused under Section 342 is not an idle formality. The Sessions Judge acts irregularly if he mixes up several distinct matters in a single question. Questions under Section 342 have to be carried out in the interest of justice and fair-play to the accused. By Slipshod examination which is the result of imprefect appreciation of the evidence, idleness or negligence the position of the accused cannot be permitted to be made more difficult than what it is in a trial. AIR 1962 SC 1239. Where some evidence was recorded before another court and in another case, it should be put to the witness in examination, unless this is done no reliance can be placed on such evidence 1963 ALJ (SC) 1057. It cannot be said that where the procedure adopted by the Sessions Judge is irregular when putting questions under Section 342 it should be held that the trial was vitiated and a fresh trial ordered. Where it is found that the accused suffered no prejudice and the appel- late court is satisfied that the failure to comply with a procedural provision does not affect the jurisdiction of the court, no retrial should be ordered. AIR 1962 SC 1239. The examination of an accused is intended to give him an opportunity to explain any circumstances appering in the evidence against him. It would not be proper for a Court to put only a few circumstances before the accused, all the circumstances requiring explana- tion must be placed before him. The test to determine that an examination under Section 342 has been a fair one would be to enquire whether or not the accused got an opportunity to say what he wanted to say in respect of the prosecution case against him. AIR 1963 SC 612 Under Section 342 questions are put to accused to enable him to explain any circums- tances apearing in evidence against him. Under that section, each separate piece of evi- dence in support of circumstance need not be put to him and he need not be questioned in respect of it. 1967 Cri LJ 656 : AIR 1967 SC 752. A defect in the examination of the accused amounts merely to an irregularity and if there was no complaint on this ground in the High Court no interference is called for from the Supreme Court. AIR 1969, SC 175. Extent of reliance on statement of accused-That the Court may rely on a portion of the accused’s statement and considering the other evidence led by the prosecution, find him guilty, Sampal Singh v. State of Rajasthan, 1969 (1) SCC 367: AIR 1969 SC 956. The High Court cannot accept the inculpatory part and reject the exculpatory part of the answers of the accused under Section 342, Cr. P. C. Yusufalli v. State of Maharashtra, AIR 1968 SC 147 at 149. It is well settled that even if an accused does not plead self-defence, it is open to the Court to consider such a plea if the lame arises from the material on record. .See In re, Jogati Bhaigo Na’ks, AIR 1972 Mad 97. The burden of establishing that plea is on the accused and that burden can be discharged by showing preponderance of probabilities in favour of that pica on the basis of the material on record. Munshi Ram v. Delhi Aministration, AIR 1968 SC 702. No doubt under the Code of Criminal Procedure the statement of an accuied may be” taken into consideration in an inquiry or trial but is not stricly evidence in the case. An accused, when he makes his statement under Section 342, does not depose as a witness be- cause no oath is adminigtrered to him, when .he is examined under that section. The recent amendment of the Code however, enables an accused to give evidence on his own behalf under S. 342-A and this only when an accused offers in writing to given evidence on his own behalf that his statement can be read as evidence proper. State of Maharashtra v. R. B. Chowk hari, AIR 1968 SC 110. For requirents under Cr. P. C.-Examination of accused-Question regarding the defence evidence-When to be put the accused. Set Notes under Section 289 ; 1970 (3) SCC 703. See also Note under Section 169: AIR 1968 SC 938. It is not a compliance of the provisions of Section 342, Cr. P. C., to merely read out the statements made by the accused in the Committal Court and ask them as to what they have to say about the prosecution evidence recorded in their presence. This is not a satisfactory way of questioning the accused. The Trial Court ought to put to each of the accused the various circumstances appearing against them and further put the prosecution case generally for the purpose of affording the accused an opportunity to explain the circumstances appear ing against them.
(1) For the purpose of enabling the accused to explain any circumstances appearing in the evidence against him, the Court may, at any stage of any inquiry or trial without pre- viously warning the accused, put such questions to him as the Court considers necessary, and shall, for the purpose aforesaid, question him generally on the case after the witnesses for the prosecution have been examined and before he is called on for his defence,
(2) The accused shall not render himself liable to punishment by refusing to answer such questions, or by giving false answers to them; but the court and the jury (if any), may draw such inference from refusal or ans- wers as it thinks just.
(3) The answers given by the accused may be taken into consideration in such inquiry or trial, and put in evidence for or against him in any other inquiry into, or trial for, any other offence which such answers may tend to show he has committed.
[(4) No oath shall be administered to the accused when he is examined under sub-section (1).]
SECTION 342A: Accused person to be competent witness:
[Any person accused of an offence before a Criminal Court shall be a competent witness for the defence and may give evidence on oath in disproof of the charges made against him or any person charged together with him at the same trial : Provided that- Note It is a grave error to examine the accused person without his request and against if protest to prove a fact which the prosecution should have established by other evidence. 1959 Ker LT 285 : 1959 : Cri LJ 1180: AIR 1959 Ker 323.
(a) he shall not be called as a witness except on his own request in writing; or
(b) his failure to give evidence shall not be made the subject of any comment by any of the parties or the Court or give rise to any presumption against himself or any person charged together with him at the same trial.]
SECTION 343: No influence to be used to induce disclosures:
Except provided in Sections 337 and 338, no influence, by means of any promise or threat or otherwise, shall be used to an accused person to induce him to disclose or withold any matter within his knowledge.
SECTION 344: Power to postpone or adjourn proceedings:
States Amendments A. P. (Added Territories) Amendments made by Madras Act 34 of 1955 are repealed. PUNJAB Section 38(4) of the East Punjab Public Safety Act V of 1949, provides that the following proviso shall be deemed to have been added to sub-section (i) [present sub-section [1-A]; “Provided also that no adjournment at postponement shall be granted by reason of absence of witness Other than witneas summoned by the Court or, of the pleader for the accused, unless the Court is satisfied that such absence is due to circumstances beyond the control of the accused, the witness or pleader and that adjournment of post- ponement is necessary for the ends of justice.” TAMIL NADU In sub-section (2) of Section 344, omit the word “by a Court other than a High Court”. (Madras Act 34 qf 1955, Section 33). Notes Preventive detention in Mizo dictrict-applicability of Criminal Procedure code -The Criminal Procedure Code is not applicable by reason of the Sixth Schedule to the Constitution in this area. Only the spirit of the Criminal Procedure Code applies. In this view of the matter a strict compliance with the provisions of Section 344 of the Criminal Procedure Code cannot be insisted upon. V. L. Rohlua v. Deputy Commissioner, Aijal, District Miza 1970 (2) SCC 908 ; 1970 SCC (Cr) 587. Habeas corpus application-Remand order of Lucknow Magistrate expired when detenu in Delhi jail custody-Can Lucknow Magistrate extend in the absence of accused-In the case of transferred custody, the Magistrate cannot recall the prisoner from the court’s custody. He is only required to intimate to the jail authorities, the prisoner and court, the original remand has been extended while adjourning the case. Raj Naram v. Supdt. Central Jail, New Delhi, (1970)2 SCC 750 : 1970 SCC (Cri) 543. Whether remand order ultra vires when made in absence of accused. . The personal presence of accused persons before a Magistrate is not a necessary require- ment for the purpose of his remand under Section 344, Cr. P.O., at the instance of the police though as a rule of caution it is highly desirable that the accused should be personally produced before Magistrate, so that he may, if he so chooses, make a representation against his remand for his release on bail.
[(1) In everyl 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.]
[(1A)] If, from the absence of a witness, or any other reasonable cause, it becomes necessary or advisable to postpone the commencement of, or adjourn any inquiry or trial, the Court may, if it thinks fit, by order in writing, staling the reasons therefor, from time to time, 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 : Remand-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 adjourn- ment or postponement shall be granted, without examining them, except for special reasons to be recorded in writing.]
(2) Every order made under this section by a Court other than a High Court shall be in writing signed by the Presiding Judge or Magistrate.
Explanation.-Reasonable cause for remand.-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.
SECTION 345: Compounding offences:
Notes Where there is a prosecution for two offences, one is compundable and the other not, the fact the other is not coinpoundible cannot become a valid reason for not compound- ing the which is compoundable. Such nermission can be givn at appallate stage 1960 Nag LJ (Notes) 23. Expiry of a long period of time such as five years from the alleged commission of the offence could not be taken into consideration in setting aside the order of acquittal and sending the case back for re-trial. 1960 Mad LJ (Gri) 709 : 1960 Cri LJ 1645: AIR 1960 Mys 325. An order granting permission to compound the offence amounts to an acquittal under the provision of Section 345(6) and viewed against this effect of the order, all the provisions of the Code setting out the consequences of acquittal are brought automatically into:opera- tion, for instance the order is appealable under Section 417. 1960 Mad LJ (Cri) 709 : 1960 Cri LJ 1645 : AIR 1960 Mys 325. In a case of Section 406, 1. P. Code, the accused returned the gold given for making ornaments during the trial and made an application for leave to compound the case but the Magistrate refused it as being against public policy, held that permission to compound should begranted. 1960 Nag LJ (Notes) 116. Whereas Sch. II attached to Cr. P. Code prescribed offence under Section l98-B(1) compoundable only with the permission of the Court, Section 345(1) empowers the person defamed to compound such an offence even without reference to Court, and the section must override the Schedule, (1961)1 Cri LJ I : AIR 1961 All 24. Society being the owner of the money would be the proper person entitled to compound the offence. (1960) MLJ (Cri) 709. Section 315(1) empowers the person defamed to compound the offence. But Schedule 11 makes defamation of the class can which form the subject-matter of complaint under Section 198-B(9) compoundable only with the permission of the court, held that the clear provisions of the section would prevail over the Schedule. AIR 1961 All 24. Section 345(6) is only limited to offences specified in Section 345(1) and 345(2) Sec- tion 62, Assam Forest Regulation (7 of 1891) only protects suspected person with regard to further proceedings but has not effect of clearing his character as that of Section 345, Cri P.C. If a person is charged with an offence, however trivalit may be) then unless there is some provision for composition of it the law must take its course and the charge enquired into resulting either in conviction or acquittal. AIR 1967 SC 895 : 1967 Cr LJ 828.
SECTION 345: TABLE:
(1) The offences punishable under the sections of the Indian Penal Code [specified] in the first two columns of the table next following may be compounded by the persons mentioned in the third column of that table
(3) When any offence is compoundable under this section, the abetment of such offence or an attempt to commit such offence (when such attempt is itself an offence) may be compounded in like manner.
(4) When the person who would otherwise be competent to compound an offence under this section is “[under the age of eighteen years or is] an idiot or a lunatic, any person competent to contract on his behalf may [with the permission of the Court] compound such offence.
(5) When the accused has been committed for or trial when he has been convicted and an appeal is pending, no composition for the offence shall be allowed without the leave of the Court to which he is committad, or, as the case may be, before which the appeal is to be heard.
(5A) A High Court acting in the exercise of its powers of revision under Section 439 may allow any person to compound any offence which he is competent to compound under this section.]
(6) The composition of an offence under this section shall have the effect of an acquittal of the accused “[with whom the offence has been com- pound.]
(7) No offence shall be compounded except as provided by this section.
SECTION 346: Procedure of State Magistrate in cases which he can dispose of:
State Amendments GUJARAT Same as that of Maharastra (1), except for the words “Greater Bombay” subsitue words “City of Ahmedabad”. MAHARASHTRA In sub-section (1) of Section 346. (i) for the words “outside the presidency-towns” substitute the words “outside Greater Bombay” ; and (ii) after the words “District Magistrate” insert the words “or Sessions Judge as the case may be”. (Bombay Act 23 of 1951, Section 2 and Sch. Item 53). (2) After the re-organisation of the State of Bombay in 1956 the amendments made in Section 346 by the above-mentioned Bombay Act are extended to the newly added areas of Hyderabad, Kutch and Saurashtra and the region of’Vidarbha as from 1-9-1959 by the Bom. Act XCVII of 1958. MYSORE In sub-section (1) of Section 346, after the words “District Magistrate” insert “words “or Sessions Judge as the case may be”. PUNJAB, HARYANA AND CHANDIGARH In sub-section (1) after the words “District Magistrate”, the words “or the Chief Judi- cial Magstrate, as the case may be”, shall be inserted. (Punjab Act 25 of 1964). UNION TERRITORIES (EXCEPT CHANDIGARH) In sub-section (1) of Section 346, after the words “District Magistrate”, insert the words “or the Chief Judicial Magistrate, as the case may be”.
(1) If, in the course of an inquiry or a trial before a Magistrate in any district outside the presidency-towns, the evidence appears to him to warrant a presumption that the case is one which shduld be tried or com- mitted for trial by some other Magistrate in such district, he shall stay proceedings and submit the case, with abriefreport explaining its nature, to any Magistrate to whom he is subordinate or to such other Magistrate, having jurisdiction, as the District Magistrate directs.
(2) The Magistrate to whom the case is submitted may, if so empowered, either try the case himself, or refer it to any Magistrate subordinate to him having jurisdiction, or commit the accused for trial.
SECTION 347: Procedure when, after commencement of inquiry or trial, Magistrate finds case should be committed:
State Amendments ANDHRA PRADESH (Added Territories) Amendments made by Madras Act 34 of 1955 are repealed. TAMIL NADU In sub-section (1) of Section 347, omit the words “or High Court”. (Madras Act 34 of 1955, section 34). WEST BANGAL For the word ‘Magistrate’ wherever it occurs, the words “Judicial Magistrate” are substituted. Notes Power under Section 437 can be exercised even in absence of express order of dis- charge AIR 1966 SC; 911 : 1966 Cri LJ 700. Power under Section 347 must be exercised before signing of judgment as Section 403 (1) bars trial of the person again, not only for the same offence but also for any other offence based on the same facts. 1966 Cri LJ 700 : AIR 1966 SC 911. The words “under the provisions hereinbefore contained” mean that if the Magistrate decides at some stage of the trial to commit the accused, he has to follow the provisions of Chapter XVII which does not mean that he must again proceed de novo. 1960 Cri LJ 145 LJ 1: AIR 1961 SC 41. For an express order of discharge when contemplated. See Section 207-A, AIR 1966 SC 911 :
(1) If in any inquiry before a Magistrate, or in any trial before a Magistrate, before signing judg- ment it appears to him at any stage of the proceedings that the case is one which ought to be tried by the Court of Session or High Court, and if he is empowered to commit for trial, he shall * * * commit the accused under the povisions hereinbefore contained.
(2) If such Magistrate is not empowered to commit for trial, he shall proceed under Section 346.
SECTION 348: Trial of persons previously convicted of offences against coinage, stamp law or property:
State Amendments ANDHRA PRADESH (Added Territories) Amendments made by Madras Act 34 of 1955 are repeated. TAMIL NADU In Section 348- (a) in sub-section (1), omit the words “or High Court, as the case may be” ; (b) in sub-section (2), omit the word “or High Court.” WEST BENGAL In sub-section (1)- (i) for the words “if the Magistrate” substitute the words “if the Judicial M trate”; (ii) in the proviso, for the words ‘any Magistrate’ substitute the wordi Judicial Magistrate”. Note Under Section 348, the Magistrate should only make a committal order and not he should first convict and then commit accused to stand his trial in the superior Court for the same offence. 1960 Cri LJ 71 : AIR 1960 Ker 16.
[(1) Whoever, having been convicted of offence punishable under Chapter XII or Chapter XVII of the Indian Penal Code with imprisonment for a term of three years or upwards, is again accused of any offence punishable under either of those chapters with impri- sonment for a term of three years or upwards, shall [if the Magistrate before whom the case is pending is satisfied that there are sufficient grounds for committing the accused] be committed to the Court of Session or High Court, as the case may be, unless the Magistrate [is competent to try the case and] is of opinion that he can himself pass an adequate sentence if the accused is convicted: Provided that, if [any Magistrate in the district] has been invested with powers under Section 30, the case may be transferred to him instead of being committed to the Court of Session.
[(2) When any person is committed to the Court of Session or High Court under sub-section (1), any other person accused jointly with him in the same inquiry or trial shall be similarly committed, unless the Magistrate discharges such other person under [sub-section (6) of Section 207-A, or Section 209.]
SECTION 349: Procedure when Magistrate cannot pass sentence sufficiently severe:
State Amendments GUJARAT Samp as that of Maharashtra. The amendments made in Section 349 are the same as those made in Maharashtra. MAHARASHTRA In Section 349. (i) in sub-section (1), for the words “to the District Magistrate or Sub-divisional Magistrate to whom he is subordinate” substitute the words “to a Magistrate of the first class specially empowered in this behalf by the State Government in consultation with the High Court”. (ii) in sub-section (I-A), for the words “District Magistrate or Sub-divisional Magistrate” suistitute the words brackets and figure “the Magistrate empo- wered under sub-section (1)” (2) After the reorganization of the State of Bombay in 1956 the amendments made in Section 349 by the above-mentioned Bombay Act are extended to the newly added areas of Hyderabad, Kutc i and Saurashtra and region of Vidarbha as from 1-9-1959 by the Born. Act XCVII of 1958. MYSORE In Section 349. (a) in sub-section (1), for the wo. ds’ ‘to the District Magistrate or Sub-divisional Magistrate, to whom he is subordinate” substitute the words “to a Magis- trate of the first class specially empowered in this behalf by the State Government”; and (4) in sub-section (1A) for the words “District Magistrate or Sub-Divisional Magistrate” substitute the words, brackets and figure “the Magistrate empowered under sub-section (1)”. PUNJAB, HARYANA AND CHANDIGARH (l) in sub-section (1), (a) for the words “a Magistrate of the second or third class”, the words “a Judicial Magistrate of the second class” shall be substituted; and (b) for the words “District Magistrate or Sub-divisional Magistrate”, the words “Chief Judicial Magistrate”, shall be substituted; and (ii) in sub-section (I-A), for the words “District Magistrate or Sub-divisional Magistrate”, the words “Chief Judicial Magistrate” shall be substituted (Punjab Act 25 of 1964). RAJASTHAN (Abu Area) The lame as that of Maharashtra (1). UNION TERRITORIES (EXCEPT CHANDIGARH) (i) in sub-section (1), for the words “a Magistrate of the second or third clasi” and for the words ‘ ‘District Magistrate or Sub-divisional Magistrate” substitute the words “a Judicial Magistrate of the second class’ ‘and “Chief Judicial Magistrate’ ‘.respectively; and (ii) in sub-section (I-A), for the words “District Magistrate or Sub-divisional Magistrate”, substitute the words “Chief Judicial Magistrate”. WEST BENGAL (I) In sub-section (1). (a) for the words ‘a Magistrate’ substitute “a Judicial Magistrate” ; (b) for the words “District Magistrate or Sub-divisional” Magistrate substitute the words “Sub-divisional Judicial Magistrate”. (2) In sub-section (I-A), for the words ‘District Magistrate or Sub-divisional Magis- trate substitute the words “Sub-divisional Judicial Magistrate”.
(1) Whenever a Magistrate of the second or third class having jurisdiction, is of opinion, after hearing the evidence for the prosecu- tion and the accused, that the accused is guilty, and that he ought to receive a punishment different in kind from, or more severe than) that which such Magistrate is empowered to inflict, or that he ought to be required to execute a bond under Section 106, he may record the opinion and submit his pro- ceedings, and forward the accused, to the District Magistrate or Sub-divi sional Magistrate to whom he is subordinate.
[(1A) When more accused than one are being tried together and the Magistrate considers it necessary to proceed under sub-section (1) in regard to any of such accused, he shall forward all the accused who are in his opinion guilty to the District Magistrate or Sub-divisional Magistrate.]
(2) The Magistrate to whom the proceedings are submitted may, if he thinks fit, examine the parties and recall and examine any witness who has already given evidence in the case and may call for and take any further evidence, and shall pass such judgment, sentence or order in the case as he thinks fit, and as is according to law : Provided that he shall not inflict a punishment more severe than empowered to inflict under Sections 32 and 33.
SECTION 350: Conviction or commitment on evidence party recorded by Magistrate and partly by another:
State Amendments MAHARASHTRA. The amendments made in proviso to Section 350 by Bombay Act 23 of 1951, should by virtue of Article 254 of the Constitution of India, be deemed to have been supersededby the amendment made by Act 26 of 1955. PUNJAB. For the purposes of trial under the Act, Section 350 of Cr. P. C. shall be deemed to have been omitted. [Punjab Safety Act (Punjab Act of 1947), also see E. P. Act 27 of 1948]. WEST BENGAL. See under Section 337, ante. Notes Under Section 350 as amended by Act XXVI of 1955, the Magistrate has the discretion either to re-summon the witnesses or to act on the evidence already before him, 1960 Cr LJ 408 : AIR 1960 Tripura 14. There is nothing illegal if the successor of the Magistrate who heard the case and wrote the judgment is to perform the mechanical part of it by pronouncing it. 1960 MP LJ 1181: (1961) 1 Cr LJ 88 (2): AIR 1961 M.P.8. Sessions Judge cannot act on evidence partly recorded by his predecessor and partly recorded by himself. 1960 MPLJ 682 : 1960 Cr LJ 1221 : AIR 1960 M. P. 302. Section 350, Cr. P. Code does not apply to the trial of a case by Special Judge. 1960 Cr LJ 307: AIR 1960 Andh Pra 151. It is doubtful whether the High Court will set aside the proceedings in all cases whcre the Sessions Judge has acted upon evidence recorded by his predecessor, without regard to any question of prejudice, 1960 Andh LT 81 : (1960) 1 An WR 108. After amendment of Section 350, Cr. P. Code, the matter of de nova trial is entirely in the discretion of the Magistrate. 1960 Cr LJ 501 : AIR 1960 Pat 160. The High Court will not order a trial merely on the ground that the evidence of the Medical Officer in the case was taken by the predecessor-in-office of the Sessions Judge who continued the trial and disposed of the case. 1960 Andh LT 81. Trial in a warrant case commences when the charge is read to the accused and be is called upon to answer the charge. AIR 1960 J and K71(FB). In a trial by a Bench of Magistrates if any one of the members constituting the Bench is absent while making the order or at any hearing the order or judgment would be invalid and not curable by virtue of Section 350. 1964 ALJ 609 : 1964 AWR 478.
(1) Whenever any Magistrate, after having heard and recorded the waole or any part of the evidence in an inquiry or a trial, ceases to exercise jurisdiction therein, and is succeeded by another Magistrate who has and who exercises such jurisdiction, the Magistrate so succeeding may act on the evidence so recorded by his predecessor, or partly recorded by his predcessor and partly recorded by himself: [Provided that if the succeeding Magistrate is of opinion that further examination of any of the witnesses whose evidence has already been recorded is necessary in the interests of justice, he may re-summon any such witness and after such further examination, cross-examination, and re-examination, if any, as he may permit, the witness shall be discharged.]
(2) Nothing in this section applies to cases in which proceedings have been stayed under Section 346 [or in which proceedings have been submitted to a superior Magistrate under Section 349.]
[(3) When a case is transferred under the provisions of this Code from one Magistrate to another, the former shall be deemed to cease to exercise jurisdiction therein, and to be succeeded by the latter within the meaning of sub-section (1).]
SECTION 350A: Changes in constitution of Benches:
[No order or judgment of a Bench of Magistrates shall be invalid by reason only of a change having occurred in the constitution of the Bench in any case in which the Bench by which such order or judgment is passed is duly constituted under Sections 15 and 16, and the Magistrates constituting the same have been present on the Bench throughout the proceedings.] State Amendment WEST BENGAL For the words “Bench of Magistrates”, substitute the words “Bench of Judicial Magistrate.”
SECTION 351: Detention of offenders attending Court:
(1) Any person attending a Criminal Court, although not under arrest or upon a summons, may be detained by such Court for the purpose of inquiry into or trial of any offence of which such Court can take cognizance and which, from the evidence, may appear to have been committed, and may be proceeded against as though he had been arrested or summoned.
(2) When the detention takes place in the course of an inquiry under Chapter XVIII or after a trial has been begun, the proceedings in respect deemed person shall be commenced afresh, and the witnesses re-heard.
SECTION 352: Courts to be open:
The place in which any Criminal Court is held for the purpose of inquiring into or trying any offence shall be deemed 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. Notes Trial or part of a trial in camera.-The High Court had inherent power to hold the trial of a case in camera, provided, of course, it was satisfied that the ends of justice required such a course to be adopted, it would not be difficult to accept the argument that the power to hold a trial in camera must include the power to hold a part of the trial in camera or to prohibit excessive publication of a part of the proceedings at such trial. What would meet the ends of justice will always depend upon the facts of each case and the requirements of justice. In a certain case, the Court may feel that the trial may continue to be a public trial, but that the evidence of a particular witness need not receive excessive publicity, because fear of such excessive publicity may prevent the witness from speaking the truth. Naresh v. State of Maharashtra, AIR 1967 SC 1 at 10.
CHAPTER 25: OF THE MODE OF TAKING AND RECORDING EVIDENCE IN INQUIRIES AND TRIALS:
Section 353: Evidence to be taken in presence of accused:
Except as otherwise expressly provided, all evidence taken under Chapters XVIII, XX, XXI, XXII and XXIII shall be taken in the presence of the accused, or, when his personal attendance is dispensed with, in presence of his pleader.
SECTION 354: Manner of recording evidence outside presidency-towns:
In inquiries and trials (other than summary trials) under this Code by or before a Magistrate (other than a Presidency Magistrate) or Sessions Judge, the evidence of the winesses shall be recorded in the following manner. State Amendments A. P. (Added Territories) Amendments made by Madras Act 34 of 1951 are repealed. GUJARAT Same as that or Maharashta, except for the words “Greater Bombay” substitute “City of Bombay”. MAHARASHTRA Omit the words “outside presidency towns” from the marginal note of Section 354. TAMIL NADU Same as that of Maharashtra. WEST BENGAL Same as that of Maharashtra.
SECTION 355: Record in summon-cases and in trials of certain offences by first and second class Magistrates:
State Amendment WEST BENGAL In Section 355, for the words “Magistrate of the first or second class”, substitute the words “Judicial Magistrate of the first or second class”.
(1) In summons-cases tried before a Magistrate other than a Presidency Magistrate, and in cases of the offences mentioned in sub-section (1) of Section 260, clauses (b) to (m), both inclusive, when tried by a Magistrate of the first or second class and in all proceedings under Section 514 (if not in the course of a trial), the Magistrate shall make a memorandum of the substance of the evidence of each witness as the examination of the witness proceeds.
(2) Such memorandum shall be written and signed by the Magistrate with his own hand, and shall form part of the record.
(3) If the Magistrate is prevented from making a memorandum as above required, he shall record the reason of his inability to do so, and shall cause such memorandum to be made in writing from his dictation in open Court, and shall sign the same, and such memorandum shall form part of the record.
SECTION 356: Record in other cases outside presidency-towns:
State Amendments ANDHRA PRADESH (Added Territories) The amendment made in Section 356 by Madras Act XXXIV of 1955, shall stand repealed. The amendment made in Section 356 is the same as that made in Maharashtra. MHARASHTRA, TAMIL NADU AND WEST BENGAL Omit the words “outsi presidency-towns” from the marginal note of Section 356. Note No objection having been taken before the Court of trial in regard to the mode of recording of the evidence and there being no prejudice caused thereby, the defect, if any, was not meterial. 1959 Mad LJ (Cr) 986: AIR 1960 Mys 48.
(1) In all other trials before Courts of Session and Magistrates (other than Presidency Magistrates), and in all inquiries under Chapters XII and XVIII, the evidence of each witness shall be taken down in writing [in the language of the Court by either the Magistrate or Sessions Judge with his own hand or from his dictation in open Court], or in his presence and hearing and under his personal direction and superintendence and [the evidence so taken down shall be signed by the Magistrate or Sessions Judge and shall form part of the record].
Evidence given in english.-(2) When the evidence of such witness is given in English, the Magistrate or Sessions Judge may take it down in that language with his own hand [or cause it to be taken down in writing in that language from his dictation in open Court], and, unless the accused is familiar with English, or the language of the Court is English, an authenticated translation of such evidence in the language of the Court shall form part of the record.
[(2-A) When the evidence of such witness is given in any other language, not being English) than the language of the Court, the Magistrate or Sessions Judge may take it down in that language with his own hand, or cause it to be taken down in that language in his presence and hearing and under his personal direction and superintendence, and an authenticated translation of such evidence in the language of the Court or in English shall form part of the record.]
Memorandum when evidence not taken down by the Magistrate Judge himself.-(3) [In cases in which the Magistrate or Sessions to be does not either take down th e evidence with his own hand or cause it the taken down in writing from his dictation in open Court], he shall, as the examination of each witness proceeds, make a memorandum of the subtance of what such witness deposes; and such memorandum shall be written and signed by the Magistrate or Sessions Judge with his own hand, and shall form part of the record.
(4) If the Magistrate or Sessions Judge is prevented from making a memorandum as above required, he shall record the reason of his inability to make it.
SECTION 357: Language of record of evidence:
State Amendment WEST BENGAL In Section 357, after the words “State Government may”, in the two places they occur, insert the words “in consultation with the High Court”.
(1) The State Government may direct that in any district or part of a district, or in proceedings before any Court of Session, or before any Magistrate or class of Magistrates the evidence of each witness shall, in the cases referred to in Section 356, be taken dowm by the Sessions Judge or Magistrate with his own hand and in his mother-tongue, unless he is prevented by any sufficient reason from taking down the evidence of any witness, in which case he shall record the reason of his inability to do so and shall cause the evidence to be taken down in writing from his dictation in open Court.
(2) The evidence so taken down shall be signed by the Sessions Judge or Magistrate, and shall form part of the record : Provided that the State Government may direct the Sessions Judge or Magistrate to take down the evidence in the English Language or in the language of the Court, although such language is not his mother-tongue.
SECTION 358: Option to Magistrate in cases under Section 355:
In cases of the kind mentioned in Section 355, the Magistrate may, if he thinks fit, take down the evidence of any witness in the manner provided in Section 356, or, if within the local limits of the jurisdiction of such Magistrate the State Government has made the order referred to in Section 357, in the manner provided in the same section.
SECTION 359: Mode of recording evidence under Section 356 or Section 357:
(1) Evidence taken under Section 356 or Section 357 shall not ordinarily be taken down in the form of question and answer, but in the form of a narrative,
(2) The Magistrate or Sessions Judge may, in his discretion, take down, or cause to be taken down, any particular question and answer,
SECTION 360: Procedure in regard to such evidence, when completed:
Notes Omission to read over or interpret deposition to witness, is a curable irregularity unless prejudice is caused to accused by such omission. 1959 Cr LJ 1452: AIR 1959 Mani 46.
(1) As the evidence of each witness taken under Section 356 or Section 357 is completed, it shall be read over to him in the presence of the accused, if in attendance, or of his pleader, if he appears by pleader, and shall, if necessary, be corrected.
(2) If the witness denies the correctness of any part of the evidence when the same is read over to him, the Magistrate or Sessions Judge may, instead of correcting the evidence, make a memorandum thereon of the objection made to it by the witness, and shall add such remarks as he thinks necessary.
(3) If the evidence is taken down in a language different from that in which it has been given and the witness does not understand the language in which it is taken down, the evidence so taken down shall be interpreted to him in the language in which it was given, or in a language which he understands.
SECTION 361: Interpretation of evidence to accused or his pleader:
Notes The procedure indicated under Section 361, Cr. P. Code is not applicable to the case of a deaf-mute who can understand by signs and gesture which do not form a language within the meaning of Section 361. 1960 Cr LJ91: 1960 MLJ (Cr) 61: AIR 1960 Mad 20. There can be no nexus between the accused and the pleader engaged by the Court for the purpose of preventing a possible miscarriage of justice. 1958 Ker LT 1125 : 1959 Cr LJ 1069 : AIR 1959 Ker 241. Violation of Section 361(1) is mere irregularity which can be cured under Section 537 if accused is not prejudiced and it has not resulted in injustice. AIR 1967 SC 986: 1967
(1) Whenever any evidence is given in a language not understood by the accused, and he is present 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 in for the purpose of formal proof, it shall be in the discretion of the Court to interpret as much thereof as appears necessary.
SECTION 362: Record of evidence in Presidency Magistrate’s Court:
State Amendments The amendments made in Section 362 are the same as those made in Maharashtra. In Section 362 (i) in sub-section (1), for the words “in every case tried by a Presidency Magistrate in which an appeal lies” substitute the words “subject to the provisions of Chapter XXII, in every case tried by a Presidency Magistrate” ; (ii) delete sub-section (4). Notes Section 362(2-A) does not apply in a case where the accused pleads guilty. The special provistion of Section 243 would be attracted in such a case. AIR 1966 SC 22: (1956) 2 SCJ 476. Procedure as prescribed in the Code of Criminal Procedure for trial of appealable summary case is to be followed even by Presidency Magistrate. 1960 Cr LJ 324: AIR 1960 Bom 107.
(1) In every case [tried by a Presidency Magistrate in which an appeal lies, such Magistrate] shall either take down the evidence of the witnesses with his own hand, or cause it to be taken down in writing from his dictation in open Court. All evidence so taken down shall be signed by the Magistrate and shall form part of the record.
(2) Evidence so taken down shall ordinarily be recorded in the form of a narrative, but the Magistrate may, in his discretion, take down, or cause to be taken down, any particular question or answer.
[(2-A) In every case referred to in sub-section (1), the Magistrate shall make a memorandum of the substance of the examination of the accused. Such memorandum shall be signed by the Magistrate with his own hand, and shall form part of the record.]
(3) Sentences [unless they are sentences of imprisoment ordered to run concurrently] passed under Section 35 on the same occasion shall, for the purposes of this section, be considered as one sentence.
[(4) In cases other than those specified in sub-section (1), it shall not be necessary for a Presidency Magistrate to record the evidence or frame a charge.]
SECTION 363: Remarks respecting demeanour of witness:
When a Sessions] 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.
SECTION 364: Examination of accused how recorded:
Notes Plea of guilty of an accused person must be recorded in his own words. AIR 1960 J and K 64. Where a magistrate had not recorded the confession of the accused in his own handwriting, nor did he endorse it to show how much time was given to the accused before he made the confession and it was further in evidence that the Magistrate recording the confession had assisted in the investigation of the particular offence with which the accused was convicted, held that such a confession could not be treated as avoluntary one. 1963 ALJ (SC) 776.
(1) Whenever the accused is examined by any Magistrate, or by any Court other than a [High Court, not being a Court of the Judicial Commissioner, * * * * * * the whole of such examination, including every question put to him and every answer given by him, shall be recorded in full, in the language in which he is examined, or, if that is not practicable, in the language of the Court or in English : and such record shall be shown or read to him, 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.
(2) When the whole is made conformable to what he declares is the truth, the record shall be signed by the accused and the Magistrate or Judge of such Court, and such Magistrate or Judge 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,
(3) In cases in which the examination of the accused is not recorded by the Magistrate or Judge himself, he shall be bound, * * * as the examination proceeds, to make a memorandum thereof in the language of the Court, or in Engligh, if he is sufficiently acquainted with the latter language; and such memorandum shall be written and signed by the Magistrate or Judge with his own hand, and shall be annexed to the record, If the Magistrate or Judge is unable to make a memorandum as above required, he shall record the reason of such inability.
(4) Nothing in this section shall be deemed to apply to the examination of an accused person under Section 263 [or in the course of a trial held by a Presidency Magistrate].
SECTION 365: Record of evidence in High Court:
Every [High Court, not being a Court of the Judicial Commissioner] * * * * * * * [shall] from time to time, by general rule, prescribe the manner in which evidence shall be taken down in cases coming before the Court, [and the evidence shall be taken down in accordance with such rule].
CHAPTER 26: OF THE JUDGEMENT:
SECTION 366: Mode of delivering judgment:
Note Where the Magistrate had merely noted in the docket-sheet the conviction and sentence and no judgment had been written at all, this would be a illegality vitiating the conviction ans sentence. 1960 MLJ (Cr) 763: AIR 1960 Mad 509.
(1) The judgment in every trial in any Criminal Court of original jurisdiction shall be pronounced, or the substance of such judgment shall be explained,- (a) in open Court either immediately after the termination of the trial or at some subsequent time of which notice shall be given to the parties or their pleaders, and (b) in the language of the Court, or in some other language which the accused or his pleader understands : Provided that the whole judgment shall be read out by the Presiding Judge, if he is requested so to do either by the prosecution or the defence.
(2) The accused shall, if in custody, be brought up, or, if not in custody, be required by the Court to attend, to hear judgment delivered, except where hsi personal attendance during the trial has been dispensed with and the sentence is one of fine only or he is acquitted in either of which cases it may be delivered in the presence of his pleader.
(3) No judgment 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.
(4) Nothing in this section shall be construed to limit in any way the extent of the provisions of Section 537.
SECTION 367: Language of judgment, contents of judgment:
State Amendment UTTAR PRADESH In Section 367, in sub-section (1) insert the following proviso, namaly: “Provided that with effect from such date as the State Government in consultation with the High Court may by notification in the Gazette appoint, the language of every judgment or order passed or made by such Courts or classes of Courts subordinate to the High Court and in such classes of cases as may be specified shall only be Hindi in Devangri Script with the international form of Indian numerals.” Notes Where the evidence is of a circumstantial nature, the circumstances from which the conelusion of guils is to be drawn should in the first instance be fully established, and all the facts so established should be consistent with the hypothesis of guilt of the accused. 1968 Cr. LJ 137 : AIR 1960 SC 29 : AIR 1967 SC 520: 1963 Cr LJ 525. Where three marks of identification are present, the identity must be held established in an impressive way. 1960 Cr LJ 1344: AIR 1960 Pat 459. The amendment introduced in Section 367 does not affect the law regulating punishmeat under the Penal Code. and now the Courts are no longer required to elaborate the reasons for not awarding the death penalty but lesser punishment should be based on sound judicial considerations. 1960 All LJ 499: 1960 Cr LJ 1536; AIR 1960 All 748. There can be no conviction and acquittal by the same judgment. AIR 1960 Tri 40. In case of rival versions, one of the prosecution and another of the accused in regard to the circumstances under which the currency notes were found in the pocket of the accused, the Court should examine them carefully for the purpose of ascertaining which of the m is true. (1961) I CrLJ 285: AIR 1961 Mys 44. In a case of riot where many persons are involved as accused, the evidence against each of them is to be marshalled and discussed. 1960 Ker LT 965. In a trial for murder, the circumstantial evidence should be closely scrutinized, and there should be no weak links, every weak link being a ground of reasonable suspicion, always calling for an acquittal. 1960 Jab LJ 799: (1961) I Cr LJ 89 : AIR 1961 Madh Pra 10. It is well accepted that where the defence has not brought forward any evidence of its own, the case of private defence can still be spelled out from the circumstances appearing in the prosecution evidence. 1959 Ker LJ 1083 : AIR 1960 Ker 142. In a trial for the offence of murder where the eyewitness is a close relation of the victim and is shown to share the victim’s hostility to his assailants, that makes it necessary for the court to examine the evidence given by such witnesses very carefully. Corroboration is however, not necessary for the acceptance of such evidence. AIR 1952 SC 54 disting. (1964) 2 SCJ 319 : AIR 1965 SC 328: 1965 (1) Cr LJ 350. In a case of murder while committing dacoity, if a lesser punishment than that of death is to be awarded, reasons for that must be given. AIR 1960 All 190. Where the prosecution evidence merely raises a suspicion against the accused it cannot result in conviction. Suspicion however strong cannot take the place of proof. As observed by the Supreme Court (AIR 1957 SC 637), the prosecution story must be true and not merely may be true. AIR 1964 All 481. If the matter rests upon the statement of a witness whose version before the committing courti is different from that in the sessions court, and there is nothing further to connect the accised with the offence with which he is charged, there would be good ground for acquitting him . AIR 1967 SC 1027 : 1967 Cr LJ 975. Whenever a Judge admits a document without giving the party against whom such document is sought to be used an opportunity to contest or rebut its effect, he acts in violation the principles of natural justice. The principles of natural justice require that no court shall give a finding whether on fact or law and particularly on facts without giving an opportunity to all the contesting parties. AIR 1963 SC 1116. After the amendment of the section in 1955 it is not necessary to record the reasons for not imposing death sentence. But simply because the section does not so require, it does not mean that the Court need not have any reasons for imposing a lesser sentence and can inflict the lesser sentence merely to satisfy his whims or because the court is allergic to the imposition if death sentence. AIR 1963 All 501 : AIR 1960 All 748. But the Courts are not absolved of their duty of exercising their judicial conscience as to whether the extreme penalty of death should be awarded or only the life sentence. 1960 MOLJ 1226 :(1961) 1 Cr LJ 89: AIR 1961 Madh Pra 10. The High Court has held that the evidence of the approver was reliable and was corronorated. on material particulars by good prosecution witnesses who have been believed by the Court. The Supreme Court did not find any error in the judgment of the High Court in upholding the conviction of the appellant. Lachhi Ram v. State of Punjab, AIR 1967 SCC792 at 794, 795. Discrepancies in the statement of a witness which do not materially affect the veracity of witness do not create any infirmity in a prosecution case particularly when a witness is not shown to be partisan or in any way inimically disposed towards the accused. When an accused person happens to be a stranger to the village where the incident took place, the sympathies of the villagers are usually with the co-villagers who have sustained inhuries at the hands of an outsider. In assessing the value to be attached to the evidence in such cases, the courts have to rely more on human probabilities than on the assertions of the witnesses. The court should take an overall view of the case and if a right of self-defence is made out from the evidence on record, that right should not be construed narrowly because the right of self-defence is a very valuable right and it has a social purpose. Where the only eye-witness of the incident did not give immediate information to the police about his having seen the occurrence and the prosecution evidence failed to prove that the empty carrtidge or mis-fired cartridge or the jacket of the cap of the bullet sent by the police were fired from the rifile alleged to have been given by the accused and the blood -stained knife was not a disovery for it was not secretly concealed and found on search and there was no proof that the watch alleged to have been discovered by one of the accused belonged to the deceased, held that the case against the accused was nut proved particularly when most of the witnesses were also interested. 1971 SCC (Cr.) 381.
(1) Every such judgment shall, except as otherwise expressly provided by this Code, be written by the Presiding Officer of the Court [or from the ‘dictation of such Presiding Officer] in the language of the Court, or in English; and shall contain the point or points for determination, the decision thereon and the reasons for the decision; and shall be dated and signed by the Presiding Officer in open Court at the time of pronouncing it [and where it is not written by the Presiding Officer with his own hand, every page of such judgment shall be signed by him.]
(2) It shall specify the offence (if any) of which, and the section of the Indian Penal Code or other law under which, the accused is convicted, and the pushment to which he is sentenced.
Judgment in alternative.—(3) When the conviction is under the Indian Penal Code 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 judgment in the alternative.
(4) I fit be a judgment of acquittal, it shall state the offence of which the accused is acquitted and direct that he be set at liberty.
[(5) In trials by jury, the Court need not write a judgment, but the Court of Session shall record the heads of the charge to the jury : Provided that it shall not be necessary to record such heads of the charge in cases where the charge has been delivered in English and taken down in shorthand.]
[(6) For the purposes of this section, an order under Section 118 or Section 123, sub-section (3), shall be deemed to be ajudgment.]
SECTION 368: Sentence of death:
(1) When any person is sentenced to death, the sentence shall direct that he be hanged by the neck till he is dead. * * * * *]
SECTION 369: Court not to alter judgment:
[Save as otherwise provided by this Code or by any other law for the time being in force or, [in the case of a High Court * * * by the Letters Patent or other instrument constituting such High Court] no Court], when it has signed its judgment, shall alter or review the same, except * * * to correct a clerical error. Notes There should be no objection to the maintainability of a second revision petition when first had failed not on the merits, but by default. (1960) 1 Andh WR 298. Order refusing exemption from appearance is not a judgment and the same can be recalled without involving any consideration as to review of judgment in criminal cases. 1960 Cr LJ 1491 : AIR 1960 Punj 565. High Court can later direct sentences to run concurrently under Section 561-A but not under Section 397. No question of over-riding the provisions of Section 369 arises. See Section 397 (1) infra. (1961) 1 Cr LJ 423: AIR 1961 Pat 138. Entertainment of fresh petition under Section 145 as to breach of peace on the same facts when previous application was dismissed in twice, see Section 145 supra. 1960 Cr. LJ 1232 : AIR 1960 Punj 464. The Magistrate is not absolutely bound by an interlocutory order and he can pass a different order unless his earlier order was set aside by a Superior Court in appropriate proceedings. 1960 Cr LJ 62 : AIR 1960 J and K 1. In a case where the High Court on appeal has ordered retrial of the accused on charges of murder and robbery of which he had been acquitted by the Sessions Court, the Sessions Court negatives the plea of antrefois acquit, the High Court has power in revision to agitate the validity of that order and it can review its own prior order. 1959 Mad LJ (Cr) 524: AIR 1960 Andh Pra 1 (FB). An appellate court has no jurisdiction to alter or review its judgement after it has been signed and delivered-the appellate court may however correct clerical errors and mistakes even after signing the judgment. 1962 ALJ 665.
SECTION 370: Presidency Magistrate’s judgment:
Instead of recording a judgment in manner hereinbefore provided, a Presidency Magistrate shall record the following particulars
(a) the serial number of the case ;
(b) the date of the commisison of the offence ;
(c) the name of the complainant (if any) ;
(d) the name of the accused person, and * * * his parentage and residence;
(e) the offence complained of or proved ;
(f) the plea of the accused and his examination (if any) ;
(g) the final order ;
(h) the date of such order; and
(i) in all cases in which the Magistrate inflicts imprisonment, or fine exceeding two hundred rupees, or both, a brief statement of the reasons for the conviction,
SECTION 371: Copy of judgment, etc., to be given to accused on application:
Note There is nothing impracticable in applying sub-section (4) of Section 371 to the judgment of any appellate Court other than the High Court. The right of the accused to obtain free copy of its judgment will depend upon the discretion of the High Court under the proviso to Section 538. But so far as the lower appellate Courts are concerned Section 424 is decisive. 24 Cut LT 455.
(1) On the application of the accused a copy of the judgment,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. Such copy shall, in any case other than a summons-case, be given free of cost.
(2) In trials by jury in a Court of Session, a copy of the heads of the charge to the jury [or, where a transcript of the charge forms part of the record under Section 297, a copy of such transcript] shall, on the application od the accused, be given to him without delay and free of cost.
Case of person sentenced to death.- [(3) When the accused is sentenced to death by any Court and an appeal lies from such judgment as of right, the Court shall inform him of the period within which, if he wishes to appeal, his appeal should be preferred.]
[(4) When the accused is sentenced to imprisonment, then, without prejudice to the provisions of sub-section (1) or sub-section (2), a copy of the finding and sentence shall, as soon as may be after the delivery of the judgment, be given to the accused free of cost.]
SECTION 372: Judgment when to be translated:
The original judgment shall be filed with the record of proceedings, and, where the original is recorded in a different language from that of the Court, and the accused so requires, a translation thereof into the language of the Court shall be added to such record.
SECTION 373: Court of Session to send copy of findings and sentence to District Magistrate:
In cases tried by the Court of Session, the Court shall forward a copy of its finding and sentence (if any) to the District Magistrate within the local limits of whose jurisdiction the trial was held. State Amendments ANDHRA PRADESH (Added Territories.) The amendments made in Section 373 by Madras Act XXXIV of 1955, shall be repealed. GUJARAT Same as that of Maharashtra, (1) except for the words “Greater Bombay” the words “City of Ahmedabad” are to be substituted. MAHARASHTRA (1) (i) For the marginal note substitute “Copy of finding and sentence to be sent to District Magistrate or Commissioner of Police;” and (ii) Add the following Proviso, namely : “Provided that the Court of Session for Greater Bombay shall send such copy to the Commissioner of Police for Greater Bombay.” (2) After the reorganisation of the State of Bombay in 1956, the amendments made in Section 373 by the Bombay Act mentioned above are extended to the newly added areas of Hyderabad, Kutch and Saurashtra and the region of Vidarbha as from 1-9-1959 by the Bom. Act XCVII of 1958. (3) In its application to the State of Bombay as formed under Section 8 of the States Reorganisation Act, 1956, add the following further Proviso to Section 373, namely: “Provided further that if the proceedings were commenced in any area outside Greater Bombay, for which a Commissioner of Police has been appointed, the Court of Session shall send such copy to the Commissioner of Police for that area”. TAMIL NADU (i) For the marginal note substitute “Copy of finding and lenience to be sent to District Magistrate or Commissioner of Police” ; (ii) Add the following Proviso, namely: “Provided that the Court of Session for the Presidency town of Madras shall send such copy to the Commissioner of Police”. UNION TERRITORIES (EXCEPT CHANDIGARH) Substitute the following, namely: “373. Court of Session to send copy of ‘finding and sentence to District Magistrate and Chief Judicial Mngistrate. In cases tried by the Court of Session, the Court shall forward a copy of its finding and sentence (if any) to the District Magistrate and the Chief Judicial Magistrate within the local limits of whose jurisdiction the trial was held”. WEST BENGAL (1) (i) Add the words “or the Chief Presidency Magistrate” to the marginal note, and (ii) after the words “District Magistrate” insert the words and commas “or the Chief Presidency Magistrate, as the case may be”. (iii) after the words “the District Magistrate”, insert the words, and the sub-divisional Judicial Magistrate: (iv) the following proviso shall be added: “Provided that in a case tried by the City Sessions Court established for the Presidency town of Calcutta, the Court shall forward such copy to the Chief presidency Magistrate”.
CHAPTER 27: OF THE SUBMISSION OF SENTENCES FOR CONFIRMATION:
SECTION 374: Sentence of death to be submitted by Court of Session:
When the Court of Session passes sentence of death, the proceedings shall be submitted to the High Court and the sentence shall not be executed unless it is confirmed by the High Court. Notes While confirming a death sentence the High Court has to deal with the matter carefully and to examine all relevant and material circumstances. All arguments urged by the appellants and all material infirmities pressed before the High Court on their behalf must be scrupulously examined and considered before a final decision is reached. AIR 1965 SC 202 : (1965) 1 Cr LJ 226. Where High Court refused confirmation of sentence of death and acquitted the accused, on appeal by State to Supreme Court, the same was allowed and the sentence of death was confirmed by it under Article 136 of the Constitution. 1960 All LJ 733 : 1960 Cr LJ 1504 : AIR 1960 SC 1125. Scope of-The High Court under Section 374, Cr. P. C., has to hear on law as well as on facts, In an appeal, the Supreme Court has the same power as the High Court has and it is entitled to go into the merits of the case. Pal Singh and Another v. State of Punjab , (1969) 3 SCC 196 : 1970 SCC (Cri.) 53.
SECTION 375: Power to direct further inquiry to be made or additional evidence to be taken:
(1) If when such proceedings are submitted the High Court thinks that a further inquiry should be made into, or additional evidence taken upon, any point bearing upon the guilt or innocence of the convicted person, it may make such inquiry or take such evidence itself, or direct it to be made or taken by the Court of Session.
(2) Such inquiry shall not be made nor shall such evidence be taken in the presence of jurors [* * *], and unless the High Court otherwise directs, the presence of the convicted person may be dispensed with when the same is made or taken.
(3) When the inquiry and the evidence (if any) are not made and taken by the High Court, the result of such inquiry and the evidence shall be certified to such Court.
SECTION 376: Power of High Court to confirm sentence or annual conviction:
In any case submitted under Section 374, [* * *] the High Court. Where a reference is made to the High Court it has wide powers and in no way restricted by the provisions of Section 418(1) and Section 423, even though the accused may have preferred an appeal against sentence of death. The High Court is bound to consider the evidence and arrive at an independent conclusion as to the guilt or innocence of the accused, and this the High Court will do even if the trial was by Jury. The High Court may or may not order retrial even in cases tried with juries. In India the trial by Jury is not a vested right, but a creation of statute and the question whether the accused in a given case having had the benefit of a trial by jury should because of misdirection be ordered to be retried, or his case be considered on the evidence by the appellate court is one of discretion and not of right. AIR 1962 SC 1239. In dealing with confirmation cases as also in appeals it is the duty of the High Court to go through the evidence carefully and to record its conclusions on all points urged before it leaving no legitimate ground of complaint on the ground that important points argued before it were not considered. AIR 1963 SC 340. Where the Sessions Judge refers to the High Court under Section 374, the High Court is not precluded from coming to its own conclusion on the review of evidence on record and on a consideration of the circumstances of the case awarding a lesser sentence. As a matter of fact it is existing inherent powers possessed by the High Court. AIR 1964 SC 703.
(a) may confirm the sentence, or pass any other sentence warranted
(b) may annul the conviction, and convict the accused of any offence of which the Sessions Court might have convicted him, or order a new trial on the same or an amended charge, or
(c) may acquit the accused person : Provided that no order of confirmation shall be made under this section until the period allowed for preferring an appeal has expired, or, if an appeal is presented within such period, until such appeal is disposed of.
SECTION 377: Confirmation of new sentence to be signed by two Judges:
In every case so submitted, the confirmation of the sentence, or any new sentence order passed by the High Court, shall, when such Court consists of two or more Judges, be made, passed and signed by at least two of them.
SECTION 378: Procedure in case of difference of opinion:
When any such case is heard before a Bench of Judges and such Judges are equally divided in opinion, the case, with their opinions thereon, shall be laid before another Judge, and such Judge after such hearing as he thinks fit, shall deliver his opinion, and the judgment or order shall follow such opinion.
SECTION 379: Procedure in cases submitted to High Court for confirmation:
In cases submitted by the Court of Session to the High Court for the confirmation of a sentence of death, the proper officer of the High Court shall, without delay, after the order of confirmation or other order has been made, by the High Court, send a copy of the order, under the seal of the High Court and attested with his official signature, to the Court of Session,
SECTION 380: Procedure in cases submitted by Magistrate not empowered to act under Section 562:
Where proceedings are submitted to a Magistrate of the first class or a Sub-divisional Magistrate as provided by Section 562, such Magistrate may thereupon pass such sentence or make such order as he might have passed or made if the case had originally been heard by him, and, if he thinks further inquiry or additional evidence on any point to be necessary, he may make such inquiry or take such evidence himself or direct such inquiry or evidence to be made or taken, State Amendments GUJARAT Same as that of Maharashtra (1). MAHARASHTRA (1) Delete the words “or a Sub-divisional Magistrate”, (2) After the reorganization of the State of Bombay in 1956, the amendment made in Section 380 by the above-mentioned Bombay Act is extended to the newly added areas of Hyderabad, Kutch and Saurashtra and the region of Vidarbha as from 1-9-1959 by the Mah. Act XGVII of 1958. MYSORE Omit the words “or a Sub-divisional Magistrate”. PUNJAB : HARYANA AND CHANDIGARH For the words “Magistrate of the first class or a Sub-divisional Magistrate”, subsitute the words “Judicial Magistrate of the first class”. RAJASTHAN (Abu area) Same as that of Maharashtra (1). UNION TERRITORIES (EXCEPT CHANDIGARH) Same as that of Punjab. WEST BENGAL For the words “Magistrate of the first class or a Sub-divisional Magistrate”, substitute the words “Judicial Magistrate of the first class or a Sub-divisional Judicial Magistrate”.
CHAPTER 28: OF EXECUTION:
SECTION 381: Execution of order passed under Section 376:
When a sentence of death passed by a Court of Session is submitted to the High Court for confirmation, such Court of Session shall, on receiving the order of confirmation or other order of the High Court thereof, cause such order to be carried into effect by issuing a warrant or taking such other steps as may be necessary.
SECTION 382: Postponement of capital sentence on pregnant woman:
If a woman sentenced to death is found to be pregnant, the High Court shall order the execution of the sentence to be postponed, and may, if it thinks fit, commute the sentence to [imprisonment] for life.
SECTION 383: Execution of sentences of imprisonment for life or imprisonment in other cases:
Where the accused is sentenced to [ imprisonment for life] or imprisonment in cases other than those provided for by Section 381, the Court passing the sentence shall forthwith forward a warrant to the jail in which he is, or is to be, confined, and, unless the accused is already confined in such jail, shall forward him to such jail, with the warrant. Note Sentence of imprisonment till the rising of court is unknown to law. The accused must serve the sentence of one day injail or in some other confinement. 1959 Cr LJ 1141 : AIR 1959 Andh Pra 530.
SECTION 384: Direction of warrant for execution:
Every warrant for the execution of a sentence of imprisonment shall be directed to the officer in charge of the jail or other place in which the prisoner is, or is to be, confined.
SECTION 385: Warrant with whom to be lodged:
When the prisoner is to be confined in a jail, the warrant shall be lodged with the jailor.
SECTION 386: Warrant for levy of find:
[ Provided that no such warrant shall be executed by the arrest or detention in prison of the offender]. Notes The proviso to Section 386, Cr. P. Code, makes it clear that no warrant for recovery of tax can be executed by the arrest on detention of the offender, but fine can be recovered by execution of warrant. 1960 MLJ(Cri) 816. No notice is necessary before issue of warrant for recovery of fine. 1960 All LJ 512: 1961(1) Cr LJ 202 : AIR 1961 All 88. The amount of tax, fee or other amount specified in the Magistrate’s order under Section 19 of the Travancore-Cochin General Sales Tax Act, is recoverable not in the sense of fine imposed by way of penalty as envisaged under the proviso to Section 386(1), Cr. P. Code and Section 64, Penal Code. 1960 Cr LJ 349 : AIR 1960 Ker 86.
(1) Whenever an offender has been sentenced to pay a fine, the Court passing the sentence may take action for the recovery of the fine in either or both of the following ways, that is to say, it may– (a) issue a warrant for the levy of the amount by attachment and sale of any movable property belonging to the offender ; (b) issue a warrant to the Collector of the District authorising him to realise the amount by execution according to civil process against the movable or immovable property, or both) of the Provided that, if the sentence directs that in default of payment of the fine the offender shall be imprisoned, and if such offender has undergone the whole of such imprisonment in default, no Court shall issue such warrant unless for special reasons to be recorded in writing it considers it necessary to do so.
(2) The State Government may make rules regulating the manner in which warrants under sub-section (1), clause (a), are to be executed, and for the summary determination of any claims made by any person other than the offender in respect of any property attached in execution of such warrant.
(3) Where the Courts issue a warrant to the Collector under sub-section (1), clause (b), such warrant shall be deemed to be a decree, and the Collector to be the decree-holder, within the meaning of the Code of Civil Procedure, 1908, and the nearest Civil Court by which any decree for a like amount could be executed shall, for the purposes of the said Code, be deemed to be the Court which passed the decree, and all the provisions of that Code as tp excution of decrees shall apply accordingly.
SECTION 387: Effect of such warrant:
[A warrant issued under Section 386, sub-section (1), clause (a), by any Court] may be executed within the local limits of the jurisdiction of such Court, and it shall autherise the [attachment] and sale of any such property without such limits, when endorsed by the District Magistrate or Chief Presidency Magistrate within the local limits of whose jurisdiction such property is found, State Amendents WEST BENGAL For the words “District Magistrate”, substitute the words “Sub-divisional Judicial. Magistrate”. Note The High Court if it has not made order under Section 397(1) that the sentences are to run concurrently at the time of dismissing the appeal against the second conviction, it can later exercise its inherent powers under Section 561-A to secure the ends of justice and direct the subsequent sentence to run concurrently with the previous sentence. Section 369 is no bar to the exercising of its inherent jurisdiction. (1961)1 Cr LJ 423 : AIR 1961 Pat 138.
SECTION 387A: Warrant for levy of fine issued by a Court in Jammu and Kashmir:
[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 the State of Jammu and Kashmir and th e Court passing the sentence issues a warrant to the Collector of a District in the territories to which this Code extends authorising him to realise the amount by execution according to civil process against the movable or immovable property, or both of the defaulter, such warrant shall be deemed to be a warrant issued under clause (b), sub-section (1) of Section 386 by a Court in the terrtories to which this Code extends and the provisions of sub-section (3) of the said section as to the execution of such warrant shall apply accordingly]. State Amendments Section 387-AA. GUJARAT Same as that of Maharashtra (1). MAHAHASHTRA “387-AA. Power to Executive Magistrates to issue warrants for amounts recoverable on request.-(1) Where by or under any law a provision is made that an amount due thereunder from any person shall on application, notification or request being made by a specified authority to any Magistrate be recoverable by the Magistrate as a fine or as a fine inflicted by himself or by any other mode of recovery, then not withstanding anything contained in the last preceding section, such application, 64. Subs. by S. 103, ibid., for “such 65. Subs. by S. 103, ibid., for -‘distress”. warrant.” 66. Ins. by Act 26 of 1955, S. 73. notification or request may be made by that authority to any Executive Magistrate within the local limits of whose jurisdiction the defaulter resides, or any property belonging to him is situate; and on receipt thereof, it shall be lawful for the Execulive Magistrate to recover the amount in either or both of the following ways, that is to say, (a) by issuing a warrant for the levy of the amount by attachment and sale of any movable property belonging to the defaulter; (b) by issuing a warrant to the Collector of the District authorising him to reallise the amount by execution according to civil process against the movable or immovable property, or both, of the defaulter. (2) The provisions of Sections 386 and 387 shall mutatis mutandis apply to the execution of such warrant, as if it were a warrant issued by a Court under Section 386.”
SECTION 388: Suspension of execution of sentence of imprisonment:
(1) When an offender has been sentenced to fine only and to imprisonment in default of payment of the fine, and the fine is not paid forthwith, the Court may— (a) order that the fine shall be payable either in full on or before a date not more than thirty days from the date of the order, or in two or three instalments, of which the first shall be payable on or before a date not more than thirty days from the date of the order and the other or others at an interval or at intervals, as the case may be, of not more than thirty days, and (b) suspend the execution of the sentence of imprisonment and release the offender, on the execution by the offender of a bond, with or without sureties, as the Court thinks fit, conditioned for his appearance before the Court on the date or dates on or before which payment of the fine or the instalments thereof, as the case may be, is to be made; and, if the amount of the fine or of any instalment, as the case may be, is not realised on or before the latest date on which it is payable under the order, the Court may direct the sentence of imprisonment to be carried into execution at once.
(2) The provisions of sub-section (1) shall be applicable also in any case in which an order for the payment of money has been made on non-recovery of which imprisonment may be awarded and the money is not paid forthwith and , if the person against whom the order has been made, on being required to enter into a bond such as is referred to in that sub-section, fails to do so, the Court may at once pass sentence of imprisonment.]
SECTION 389: Who may issue warrant:
Every warrant for the execution of any sentence may be issued either by the Judge or Magistrate who passed the sentence, or by his successor in office.
SECTION 390:
[Re: Procedure in cases of sentence of whipping and execution thereof.] Rep. by the Abolition of Whipping Act, 1955 (44 of 1955), Section 3.
SECTION 391:
[Re: Procedure in cases of sentence of whipping and execution thereof.] Rep. by the Abolition of Whipping Act, 1955 (44 of 1955), Section 3.
SECTION 392:
[Re: Procedure in cases of sentence of whipping and execution thereof.] Rep. by the Abolition of Whipping Act, 1955 (44 of 1955), Section 3.
SECTION 393:
[Re: Procedure in cases of sentence of whipping and execution thereof.] Rep. by the Abolition of Whipping Act, 1955 (44 of 1955), Section 3.
SECTION 394:
[Re: Procedure in cases of sentence of whipping and execution thereof.] Rep. by the Abolition of Whipping Act, 1955 (44 of 1955), Section 3.
SECTION 395:
[Re: Procedure in cases of sentence of whipping and execution thereof.] Rep. by the Abolition of Whipping Act, 1955 (44 of 1955), Section 3.
SECTION 396: Execution of sentences on escaped convicts:
(1) When sentence is passed under this Code on an escaped convict, such sentence, if of death, [imprisonment for life], [or fine], shall, subject to the provision hereinbefore contained, take effect immediately, and, if of imprisonment, * * * * * shall take effect according to the following rules, that is to say :
(2) If the new sentence is severer in its kind than the sentence which such convict was undergoing when he escaped, the new sentence shall take effect immediately.
(3) When the new sentence is not severer in its kind than the sentence the convict was undergoing when he escaped, the new sentence shall take effect after he has suffered imprisonment, * * * * * * for a further period equal to that which, at the time of his escape, remaind unexpired of his former sentence.
Explanation.-For the purposes of this section- * * * * * (b) a sentence of imprisonment with solitary confinement shall be deemed severer than a sentence of the same description of imprisonment without solitary confinement ; and (c) a sentence of rigorous imprisonment shall be deemed severer than a sentence of simple imprisonment with or without solitary confinement.
SECTION 397: Sentence on offender already sentenced for another offence:
[(1) When a person already undergoing a sentence of imprisonment is sentenced on a subsequent conviction to imprisonment or imprisonment for life, such imprisonment or imprisonment for life shall commence at the expiration of the imprisonment to which he has been previously sentenced, unless the Court directs that the subsequent sentence shall run concurrently with such previous sentence : Provided that where a person who has been sentenced to imprisonment by an order under Section 123 in dafault of furnishing security is, whilst undergoing such sentence, sentenced to imprisonment for an offence committed prior to the making of such order,the latter sentence shall commence immediately.
(2) When a person already undergoing a sentence of imprisonment for life is sentenced on a subsequent conviction to imprisonment or imprisonment for life, the subsequent sentence shall run concurrently with such previous sentence.]
SECTION 398: Saving as to Sections 396 and 397:
(1) Nothing in Section 396 or Section 397 shall be held to excuse any person from any part of the punishment to which he is liable upon his former or subsequent conviction.
(2) When an award of imprisonnent in default of payment of a fine is annexed to a substantive sentence of imprisonment, [* * *] [* * *] and the person undergoing the sentence is after its execution to undergo a further substantive sentence, or further substantive sentences, of imprisonment, * * * effect shall not be given to the award of imprisonment in default of payment of the fine until the person has undergone the further sentence or sentences.
SECTION 399: Confinement of youthful offenders in reformatories:
[ State Amendments ANDHRA PRADESH, Telangana Area(S. 66) Section 399 shall cease to apply to that part or parts of an area of the State in which the provisions of Children Act of the State have been brought into force. ASSAM Assam Children Bill, 1970 has been introduced in the Legislature of that State. Cl. 58 (2) proposes to repeal this section. BIHAR Section 399 shall cease to apply to that part or parts of an area of the State in which the provisions of Children Act of the State have been brought into force. (Bihar Act 10 of 1970). GUJARAT Section 399 shall cease to apply to that part or parts of an area of the State in whcih provisions of Children Act of the State have been brought into force. Bommay Area-Bom. Act LXXI of 1948, Section 6; and Saurashtra Area-Sau Act XXIX of 1956, Section 6. MADHYA PRADESH Section 399 shall cease to apply to that part or parts of an area of the State in which the provisions of Children Act of the State have been brought into force. M. P Act, 15 of 1970, S 67. MAHARASHTRA Section 399 shall cease to apply to that part or parts of an area of the State in which the provisions of Children Act of the State have been brought into force. Bom Act LXXI 1948 (as extended to the whole State by Mah. Act XXXVIII of 1963), Section. 6 MYSORE Section 399 shall cease to apply to that part or parts of an area of the State in which the section of Children Act of the State have been brought into force. Mys. Act XIX of 1964. Section 6(1) RAJASTHAN (Abu Area) Section 399 shall cease to apply to that part or parts of an area of the State in which the provisions of Children Act of the State have been brought into force. Bom. Act LXXI of 1948, Section 6. UNION TERRITORIES section 399 shall cease to apply to that part or parts of an area of the State in which the provisions of Children Act of the State have been brought into force. Children Act, 1960 (LX of 1960), Section 58. UTTAR PRADESH Section 399 shall cease to apply to that part or parts of an area of the State in which the provisions of Children Act of the State have been brought into force. U. P. Act I of 1952, Section 76.
(1) When any person under the age of fifteen years is sentenced by any Criminal Court to imprisonment for any offence, the Court may direct that such person, instead of being imprisoned in a criminal jail, shall be confined in any reformatory established by the State Government, as a fit place for confinement, in which there are means of suitable discipline and of training in some branch of useful industry or which is kept by a person willing to obey such rules as the State Government prescribes with regard to the discipline and training of persons confined therein.
(2) All persons confined under this section shall be subject to the rules so prescribed.
(3) This section shall not apply to any place in which the (Reformatory Schools Act, 1897), is for the time being in force.
SECTION 400: Return of warrant on execution of sentence:
When a sentence has been fully executed, the officer executing it shall return the warrant to the Court from which it was issued, with an endorsement under his hand certifying the manner in which the sentence has been executed.
CHAPTER 29: OF SUSPENSION, REMISSIONS AND COMMUTATIONS OF SENTENCES:
SECTION 401: Power to suspend or remit sentences:
[State Amendments PUNJAB, HARYANA AND CHANDIGARH (1) In sub-section (4-A) of Section 401, insert the words “or other Authority” between the words “Criminal Court” and “under”. (2) After the reorganisation of the State of Punjab in 1956, the amendment made in Section 401 by the E. P. Act XXVIII of 1949 was extended to the newly added area of Pepsu as from 7-11-1958 by Punjab Act XXX of 1958, Section 4 and Schedule 1. UTTAR PRADESH (1) Same as that of Punjab (1). (2) The amendment made in Section 401 by the above mentioned U. P. Act has been extended to the State merged in the States of Uttar Pradesh, namely, Banaras, Rampur and Tehri Garhwal, as from 1-1-1950 by U.P. Act VIII of 1950. UNION TERRITORIES ( HIMACHAL PRADESH) Same as that of Punjab (1) Notes The Governor cannot exercise his power of the suspension of the sentence for the period when the Supreme Court is in seizing of the case. (1961) 1 Cri LJ 172: AIR 1961 SC 112. A pwerson convicted and sentenced to a term of rigorous imprisonment of more than two years is disqualified under Section 7(b) of Representation of the People Act when five years have not passed after his release and the disqualification has not been removed by the Election Commissioner. The remission of his sentence under Section 401, Cr. P ., would not save him. AIR 1961 SC 334.
(1) When any person has been sentenced to punishment for an offence, * * * the [appropriate Government] may at any time without conditions or upon any conditions which the person sentenced accepts, suspend the execution of his sentence or remit the whole or any part of the punishment to which he has been sentenced.
(2) Whenever an application is made to * * * the [appropriate Government] for the suspension or remission of a sentence * * * the [appropriate Government] * * * may require the presiding Judge of the Court before or by which the conviction was held or confirmed to state his opinion as to whether the application should be granted or refused, together with his reasons for such opinion [and also to forward with the statement of such opinion a certified copy of the record of the trial or of such record thereof as exists.]
(3) If any condition on which a sentence has been suspended or remitted is, in the opinion of * * * of the [appropriate Government] * * * not fulfilled * * * the [appropriate Government] may cancel the suspension or remission, and thereupon the person in whose favour the sentence has been suspended or remitted may, if at large, be arrested by any police- officer without warrant and remanded to undergo the unexpired portion of the sentence.
(4) The condition on which a sentence is suspended or remitted under this section may be one to be fulfilled by the person in whose favour the sentence is suspended or remitted, or one independent of his will.
[(4-A) The provisions of the above sub-sections shall also apply to any order passed by a Criminal Court under any section of this Code or of any other law, which restricts the liberty of any person or imposes any liability upon him or his property.] *** * * The * * * [appropriate Government] may, by general rules or special orders, give directions as to the suspension of sentences and the conditions on which petitions should be presented and dealt with : [Provided that in the case of any sentence (other than a sentence of fine * * passed on a male person above the age of eighteen years, no such petition by the person sentenced or by any other person on his behalf shall be entertained, unless the person sentenced in jail and- (a) where such petition is made by the person sentenced, it is presented through the officer in charge of the jail ; or (b) where such petition is made by any other person, it contains a declaration that the person sentenced is in jail.]
SECTION 402: Power to commute punishment:
[(1)] The * * * [appropriate Government] may, without the consent of the person sentenced, commute any one of the following sentences for any other mentioned after it Death, [imprisonment for life], * * * rigorous imprisonment for a term not exceeding that to which he might have been sentenced, simple improsonment for a like term, fine.
[(2) Nothing in this section shall affect the provisions of Section 54 or Section 55 of the Indian Penal Code.]
[(3) In this section and in Section 401, expression “appropriate Governments” shall mean- (a) in cases where the sentence is for an offence against, or the order referred to in sub-section (4-A) of Section 401 is passed under any law relating to a matter to which the executive power of the Union extends the Central Government ; and (b) in other cases, the State Government.]
SECTION 402A: Sentences of death:
[The powers conferred by Sections 401′ and 402 upon the State Governments may, in case of sentences of death, also be exercised by [the Central Government] * * *.]
CHAPTER 30: OF PREVIOUS ACQUITTALS OR CONVICTIONS:
SECTION 403: Person once convicted or acquitted not to be tried for same offence:
The rule of issue of estoppel precludes the reception of evidence to disturb the finding reached in previous case when the accused is tried sub’equently even for a different offence which might be permitted by the terms of Section 403(2). The rule is not the same as the plea of double jeopardy or autre fois acquit. The rule thus relates only to the admissibility of evidence which is designed to upset a finding of fact recorded by a competent court at a previous trial. Further Section 403 does not preclude the applicability of this rule of issue of estoppel. AIR 1965 SC 87: (1965) 1 Cri LJ 120. A plea of autre fois acquit which is recognised under Section 403, Cr. P. C., arises when a person is tried again for the same offences or on the same facts for any other offence for which a different charge from the one made against him might have been made under Section 236 or for which he might have been convicted under Section 237. Where the common object in the two different trials for distinct offences arising out of different transactions is different, acquitial in one does not bar conviction in another. Reasoning of judgment of acquittal is not admissible in evidence. AIR 1965 SC 83 : (1965) 1 Cri LJ 1 16. In a subsequent case relating to a different offence and a different period, there cannot be any bar of autrefois acquit to the maintainability of the subsequent complaint. 61 Bom LR 46 :1960 Cri LJ 1321: AIR 1960 Bom 453. It is wholly immaterial upon what grounds the order of acquittal was based. 62 Punj LR 46: 1960 Cri LJ 399 : AIR 1960 Punj 149. Where a conviction for murder with a pistol was confirmed by the High Court in appeal it was held, in appeal by special leave to Supreme Court, that the subsequent acquittal of accused under Section 19(1)(f). Arms Act, in a companion case started against accused could not be taken into account in disposing of appeal by the Supreme Court. AIR 1965 SC 79 ” (1965) 1 Cri LJ 112. Subsequent trial in respect of another sum embezzled on intermediate days involved in the gross sum embezzled for which there is a separate trial, is not barred. 1960 Cri LJ 503 : AIR 1960 Pat 168. Except where the statute so requires it is not imperative upon a party to appeal against everyerror, defect or irregularity in any order by which he may conceive himself aggrieved under the penalty, if he does not so do, of forfeiting for error the benefit of consideration by the Supreme Court. 1960 Cri LJ 289 : AIR 1960 SC 239. There can be fresh charge and trial under major offence in spite of acquittal of accused on minor charge;. AIR 1967 SC 1156: 1967 Cri LJ 1076. Where a court says, though erroneously, that it was not competent to take cognizance of offence, it has no power to pass a valid order of acquittal. An order of acquittal made by it would in fact be a nullity and cannot be pleaded as a bar to a subsequent trial of the accused on the same facts for the same offence. (1965) 2 SCJ 886 : AIR 1966 SC 69: 1966 Cri LJ 75. Section 403, Cr. P. C ., governs the entire principle of autre fois acquit and auture fois convict. But apart from this the Australian ‘principle of issue estoppel’ has been followed in India, A proceeding under Section 107, Cr. P. C. is not a trial. So the rejection of evidence given in the earlier proceeding to sustain an order for binding over the respondents to keep the peace does not preclude the trial of the respondents in respect of specific incident which together with the other incident was sought to be made the basis of the order of binding over the respondents. No principle of issue estoppel arises in this case. State of Andhra Pradesh v. Kokkiliagada Mecraryyo, (1969) 1 SCC 161. Principle of double jeopardy : Defence to that of issue estoppel.-The High Court had acquitted Nand Lal because of insufficient evidence and not due to false implication. That in any case the principle of issue estoppel was not applicable and that it was different to that of autre fois acquit embodied in Section 403, Cr. P. C. That issue-estoppel to arise, there must have been instinctly raised and inevitably decided the same issue in earlier proceedings between the same parties. Piara Singh v. The State of Punjab, (1969) 1 SCC 379 : AIR 1969 SC 961 : (1969)2 SCA 318 : (1969) 2 SCJ 878.
(1) A person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall while such conviction or acquitital remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence fir which a different charge from the one made against him might have been made under Section 236, or for which he might have been convicted under Section 237.
(2) A person acquitted or convicted of any offence may be afterwards tried for any distinct offence for which a separate charge might have been made against him on the former trial under Section 235, sub-section (1).
(3) A person convicted of any offence constituted by any act causing consequences which together with such act) constituted a different offence from that of which he was convicted, may be afterwards tried for such last mentioned offence, if the consequences had not happened, or were not known to the Court to have happened, at the time when he was convicted.
(4) A person acquitted or convicted of any offence constituted by any acts may, notwithstanding such acquittal or conviction, be subsequently charged with, and tried for, any other offence constituted by the same acts which he may have committed if the Court by which he was first tried was not competent to try the offence with which he is subsequently charged,
(5) Nothing in this section shall affect the provisions of (S.26 of the General Clauses Act, 1897), or of Section 188 of this Code.
Explanation.-The dismissal of a complaint, the stopping of proceedings under Section 249, the discharge of the accused or any entry made upon a charge under Section 273, is not an acquittal for the purposes of this section.
Illustrations (a) A is tried upon a charge of theft as a servant and acquitted. He cannot afterwards, while the acquittal remains in force, be charged with theft as a servant, or, upon the same facts with theft simply, or with criminal breach (b) A is tried upon a charge of murder and acquitted. There is no charge of robbery; but it appears from the facts that A committed robbery at the time when the murder was committed ; he may afterwards be charged with, and tried for, robbery; (c) A is tried for causing grievous hurt and convicted. The person injured afterwards dies. A may be tried again for culpable homicide; (d) A is charged before the Court of Session and convicted of the culpable homicide of B. A may not afterwards be tried on the same facts for the murder (e) A is charged by a Magistrate of the first class with, and convicted by him of, voluntarily causing hurt to B. A may not afterwards be tried for voluhtarily causing grievous hurt to B on the same facts, unless the case comes within Paragraph 3 of the section; (f) A is charged by a Magistrate of the second class with, and convicted by him of, theft of property from the person of B. A may be subsequently charged with, and tried for, robbery on the same facts; (g) A,B and C charged by a Magistrate of the first class with, and convicted by him of, robbing D. A, B and C may afterwards be charged with, and tried for, dacoity on the same facts.
PART 7: OF APPEAL, REFERENCE AND REVISION:
CHAPTER 31: OF APPEALS:
SECTION 404: Unless otherwise provided, no appeal to lie:
No appeal shall lie from any judgment or order of a Criminal Court except as provided for by this Code or by any other law for the time being in force.
SECTION 405: Appeal from order rejecting application for restoration of attached property:
Any person whose application under Section 89 for the delivery of property or the proceeds of the sale thereof has been rejected by any Court, may appeal to the Court to which appeals ordinarily lie form the sentences of the former Court.
SECTION 406: Appeal from order requiring security for keeping the peace or for good behaviour:
[Any person who has been ordered under Section 118, to give security for keeping the peace or for good behaviour may appeal against such order- State Amendments In its application to the Maharashtra, after Section 406 insert the following section, “406-AA. Appeal from direction made by District Magistrate to make further inquiry into proceedings in which an order a/release or discharge has hen made under Section 119.-Any person aggrieved by a direction made by a District Magistrate under sub-section (2) of Section 436 requiring any Sub-divisional Magistrate or any other Executive Magistrate subordinate to him to make further enquiry into any proceedings in which an order of release or discharge has been made by him under Section 119 may appeal against such direction to the Court of Session” (Bombay Act 39 of 1955, Section 4). UTTAR PRADESH Substitute the following section for Section 406 : “406. Any person, who has been ordered under Section 118 to give security for keeping the peace or for good behaviour, may appeal against such order to the Court of Sessions: Provided that nothing in this Section shall apply to persons the proceedings against whom are laid before Sessions Judge in accordance with the provisions of sub-section (2) or sub-section (3-A) of Section 123.”
(a) if made by a Presidency Magistrate, to the High Court ;
(b) if made by any other Magistrate, to the Court of Session ; * * * * Provided, * * * that nothing in this section shall apply to persons the proceedings against whom are laid before the Sessions Judge in accrdance with the provisions of sub-section (2) or sub-section (3-A) of Section 123.]
SECTION 406A: Appeal from order refusing to accept or rejecting a surety:
[-Any person aggrieved by an order refusing to accept or rejecting a surey under Section 122 may appeal against such order,- State Amendments MYSORE In Section 406-A, for clauses (b) and (c) substitute as follows. “(b) if made by any other Magistrate, to the Court of Session.’ ‘ PUNJAB ,HARYANA AND CHANDIGARH For Section 406-A substitute the following, namely: “406-A. Appeal from order refusing to accept or rejecting a surety.-Any person aggrieved by an order refusing to accept or rejecting a surety under Section l22 may appeal against such order to the Court of Session.” TERRITORIES (except Chandigrah) For Section 406A, substitute the following sections, namely: “406-A. Appeal from order refusing to accept or rejecting a surety. Any person aggrieved by an order refusing to accept or rejecting a surety under Section 122 may appeal against such order. (a) if made by the District Magistrate or the Chief Judicial Magistrate, to the Court of Session; (b) if made by an Executive Magistrate other than the District Magistrate, to the District Magistrate; and (c) if made to a Judicial Magistrate other than the Chief Judicial Magistrate, to the Chief Judicial Magistrate. 406-B. Transfer of appeal to Additional District Magistrate or to Additional Chief Judicial Magistrate. The District Magistrate or the Chief Judicial Magistrate may transfer any appeal presented to him under Section 406-A to an Additional District Magistrate or to the Additional ChiefJudicial Magistrate, as the case be, and such Additional District Magistrate or Additional Chief Judicial Magistrate may hear and dispose of the appeal.” UTTAR PRADESH (1) In Section 406-A, the comma, dash and all the words after the words ‘against such order’ are deleted and the words ‘to the court of Session’ are substituted for them. (2) Merged States-The amendment made in Section 406-A by the U. P. Act mentioned above has been extended to the States merged in the State of Uttar Pradesh, namely. Banras, Rampur and Tehri Garhwal as from 1-1-1950 by U. P. Act VIII of 1950. WEST BENGAL In Section 406-A, (i) in Cl. (b), for the wards ‘the District Magistrate’, substitute the words “any other Magistrate” and (ii) omit clause (c). Section 406-AA GUJARAT Same as that of Maharashtra (1). MAHARASHTRA (1) Insert the following section, namely: “406-AA. Appeal from direction, made by District Magistrate to make further inquiry into proceedings in which an order of release or discharge has been made under Section 119.– Any person aggrieved by a direction made by a District Magistrate under sub- section (2) of Section 436 requiring any Sub-divisional Magistrate or any other Exceutive Magistrate subordinate to him to make further inquiry into in any proceedings in which an order of release or discharge has been made by him under Section 119 may appeal against such direction to the Court of Session.” (2) After the reorganisation of the State of Bombay in 1956, the amendment made by inserting Section 406-AA by the Bombay Act mentioned above is extended to the newly added areas of Hyderabad, Kutch and Saurashtra and the region of Vidarbha as from 1-9-1959 by the Mah. Act XCVII of 1958. RAJASTHAN (Abu Area) Same as that of Maharastra (1). Section 406-B GUJARAT Same as that of Maharashtra (1). MAHARASHTRA (1) After Section 406-A insert the following section, namely, “406-B. Transfer of appeals to Additional District Magistrate.-The District Magistrate may transfer any appeal presented to him under Section 406 or 406-A to an Additional District Magistrate, and such Additional District Magistrate may hear and dispose of the appeal.” (2) After the reorganisation of the State of Bombay in 1956, the amendment by way of insertion of Section 406-B made by the above mentioned Bombay Act is extended to the newly added areas of Hyderabad, Kutch and Saurashtra and the region of Vidarbha as from 1-9-1959 by the Mah. Act XCVII of 1958. (3) In its application to the State of Bombay as formed under Section 8 of the States Reorganisation Act in Section 406-B, as inserted by Bom Act VIII of 1954 and extended by Bom. Act XCVII of 1958, delete the figures and word “406, or”. RAJASTHAN (Abu Area) Same as that of Maharashtra (1)
(a) if made by a Presidency Magistrate to the High Court;
(b) if made by the District Magistrate, to the Court of Session; or
(c) if made by a Magistrate other than the District Magistrate, to the Dirtrict Magistrate.]
SECTION 407: Appeal from sentence of Magistrate of the second or third class Transfer of appeals to first class Magistrate:
[.] Rep. by the Code of Criminal Procedure(Amendment) Act, 1955 (26 of 1955), Section 81. State Amendments ANDHRA PRADESH (Added Territories) The amendment made in Section 407 by Mad. Act XXXI of 1956 shall, stand After Section 406-A, insert the following section, namely: “407. Appeal from sentence ofMagistrate of the second or third class and transfer of appeals to first class Magistrate.-(1) Any person convicted on trial held by any Magistrate of the second or third class, or any person sentenced under Section 349 or in respect of whom an order has been made or a sentence has been passed under Section .380 by a Sub-Divisional Magistrate of the second class, may appeal to the District Magistrate. (2) The District Magistrate may direct that any appeal under this section, or any class of appeals, shall be heard by any Magistrate of the first class subordinate to him and empowered by the State Government to hear such appeals, and thereupon such appeal or class of appeals may be presented to such Magistrate, or, if already presented to the District Magistrate, may be transferred to such Magistrate. The District Magistrate may without from such Magistrate any appeal or class of appeals so presented or transferred.” TAMIL NADU Same as that of Kerala. UNION TERRITORY : LACCADIVE, MINICOY AND AMINDIVI ISLANDS. (1) Insert the following after Section 406-A : “407. Appeal from sentence of Magistrate of second or third class.-(1) Any person convicted on a trial held by a Magistrate of second or third class may appeal to the District Magistrate.” (2) Same as that of Kerala, above. (2) In Section 407- (a) for the words “the District Magistrate” wherever they occur, substitute the words “Chief Judicial Magistrate” ; (b) in sub-section (1), for the words “Magistrate of the second or third class”, substitute the words “Judicial Magistrate of the third class” ; and (c) in sub-section (2), for the words “Magistrate of the first class”, substitute the words “Judicial Magistrate of the first class”.
SECTION 408: Appeal from sentence of Assistant Sessions Judge or Magistrate of the first class:
Any person convicted on a trial held by an Assistant Sessions Judge, a District Magistrate or [any other Magistrate], or any person sentenced under Section 339 [or in respect of whom an order has been made or a sentence has been passed under Section 380] [by any Magistrate], may appeal to the Court of Session: Provided as follows: ** ** * * State Amencdments ANDHRA PRADESH (Added Territories) The amendment made in Section 408 by Madras Act XXXI of 1956 shall stand repealed. GUJARAT Same as that of Maharashtra (1). KERALA In Section 408, for the words “any other Magistrate” substitute the words “other Magistrate of the first class, “and for the words “any Magistrate” substitute the words “a Magistrate of the first class”. MAHARASHTRA (1) For Section 408, the following shall be substituted, namely. “409. Appeal from sentence of Assistant Sessions Judge or any Magistrate.-Any person convicted on a trial held by an Assistant Sessions Judge or a Judicial Magistrate or any person sentenced under Section 349 or in respect of whom an order has been made or a sentence has been passed under Section 380 by a Judicial Magistrate may appeal to the Court of Sessions: Provided as follows: (1) When in any case an Assistant Sessions Judge or a Magistrate specially empowered under Section 30 passes any sentence of imprisonment for a term exceeding four years, the appeal of all or any of the accused’ convicted at such trial shall lie to the High Court, (2) When any person is convicted by a Magistrate of an offence under Section 124 -A of the Indian Penal Code, the appeal shall lie to the High Court.” (2) After the reorganisation of the State of Bombay in 1956, the amendment made in Section 408 by the above mentioned Bombay Act is extended to the newly added areas of Hyderabad, Kutch and Saurashtra and the region of Vidarbha as from 1-9-1959 by Bom Act XCVII of 1958. MYSORE Same as that of Maharashtra (1). PUNJAB, HARYANA AND CHANDIGARH In Section 408, for the words “a District Magistrate or any other Magistrate, or any person sentenced under Section 349 or in respect of whom an order has been made or a sentence has been passed under Section 380 by any Magistrate”, substitute the words, “or a Judicial Magistrate or any person sentenced under Section 349 or in respect of whom an order has been made or a sentence has been passed under Section 380 by a Judicial Magistrate. RAJASTHAN (Abu Area) Same as that of Maharashtra (1). TAMIL NADU The matter is the same as of Proviso in Kerala, except for the words “Provided that” in the beginning, UNION TERRITORIES: LACCADIVE, MINICOY AND AMINDIVI ISLANDS (eucept Chandigarh) In Section 408, for the words “or any other Magistrate” substitute the words “or other Magistrate of the first class’ . For the words and figures “a District Magistrate or any other Magistrate, or other person scntenced under Section 349 or in respect of whom an order has been made or a sentence has been passed under Section 380 by any Magistrate”, substitute the words and figures “or a Judicial Magistrate or any person sentenced under Section 349 or in respect of whom an order has been made or a sentence has been passed under Section 380 by a judicial Magistrate”; and For the words and figures “a District Magistrate or other Magistrate of the first class, or any person sentenced under Section 349 or in respect of whom an order has been made or a sentence has been passed under Section 380 by any Magistrate”, substitute the words and figures “or a Judicial Magistrate of the first class or any person sentenced under Section 349 or in respect of whom an order has been made or a sentence has been passed under Section 380 by a Judicial Magistrate”. UTTAR PRADESH (1) In its application to the State of Uttar Pridesh the following paragraph is substituted for paragraph (1) of the section. “Any person convicted on a trial held by any Assistant Sessions Judge, a District Magistrate or any other Magistrate or any person sentenced under Section 349 or in respect of whom an order has been made or a sentence has been passed under Section 380 by a Sub-Divisional Magistrate of the Second Class or a Magistrate of the First Class or the District Magistrate, may appeal to the Court of Session.” (2) Section 408. (a) for the words “A Sub-Divisional Magistrate of the second class or a Magistrate of the First Class or the District Magistrate” the words “any Magistrate” shall be substituted, and (b) in the proviso in cl. (b) the words “or any sentence of transportation” shall be deleted. WEST BENGAL (i) for the words “A District Magistrate or any other Magistrate” substitute the words “or any Judicial Magistrate”, and (ii) in cl. (c) of the proviso, for the word “Magistrate” substitute the words “Judicial Magistrate”. Jurisdiction cannot be given by consent of parties and all proceedings of the Court, which had no inherent jurisdiction to entertain the matter, are void. (1959) 2 Andh WR 414: 1959 Mad Cri LJ 828.
(b) when in any case an Assistant Sessions Judge or a Magistrate specially empowered under Section 30 passes any sentence of imprisonment for a term exceeding four years, * * * the appeal [of all or any of the accused convicted at such trial] shall lie to the High Court;
(c) when any person is convicted by a Magistrate of an offence under Section 124-A of the Indian Penal Code, the appeal shall lie to the High Court.
SECTION 409: Appeals to Courts of Session how heard:
[State Amendments ANDHRA PRADBSH (Added Territories) Section 409 as substituted by Madras Act XXXI of 1956 shall stand repealed. The following proviso shall be added to sub-section (2) of Section 409, namely: “Provided that where any such appeal is directed by the State Government to be heard by an Additional Sessions Judge, that appeal may be preferred to him.” KERALA Substitute the following section, namely : “409. Appeals to Court of Session how heard.-An appeal to the Court of Session or Sessions Judge shall be heard by the Sessions Judge or by an Additional Sessions Judge: Provided that an Additional Sessions Judge shall hear only such appeals as the State Government may, by general or special order, direct or as the Sessions Judge of the division may make over to him.” ORISSA Insert the following proviso to nib-section (2), namely : “Provided that where any such appeal is directed by State Government to be heard by an Additional Sessions Judge or Assistant Sessions Judge, that appeal may be preferred to him.” PUNJAB : HARYANA AND CHANDIGARH In Section 406: (i) in the proviso to sub-section (1) omit the words “or third”, and (ii) in sub-section (2), for the words “State Government”, substitute the words “High Court”. TAMIL NADU Same as that of Kerala. UNION TERRITORIES (except Chandigarh) (i) For Section 409 substitute the following: Same as that of Kerala. (ii) In Section 409 as it applies to the Union Territory of Laccadive, Minicoy and Amindivi Islands, in the proviso, for the words “State Government” substitute the words “State Government, in consultation with the High Court”; and (iii) and in its application to other Union Territories, in proviso to sub-section (1), omit the words “or third” and for the words ‘State Government’ in subsection (2), substitute the words “State Government) in consultation with the High Court.” UTTAR PRADESH (1 ) For Section 409 substitute the following : “409. Appeals to Court of Session how heard.-(1) Subject to the provisions of this section, an appeal to the Court of Session or Sessions Judge shall be heard by the Sessions Judge or by an Additional Sessions Judge or an Assistant Sessions Provided that no such appeal shall be heard by an Assistant Sessions Judge unless the appeal is of a person, convicted on a trial held by any Magistrate of second or third class. (2) An additional Sessions Judge or an Assistant Sessions Judge shall hear only such appeals as the State Government may, by general or special order, direct or as the Sessiens Judge of the division may make over to him. WEST BENGAL In the proviso to sub-section (1) of Section 409, for the words “any Magistrate”,substitute the words “any Judicial Magistrate. Note It is no reason denying the right of appeal to the persons convicted but let off on admonition so that they may not be in more favourable position. 1958 All LJ 742 : 1959 Cri LJ 677: AIR 1959 All 351.
(1) Subject to the provisions of this section, an appeal to the Court of Session or Sessions Judge shall be heard by the Sessions Judge or by an Additional Sessions Judge or an Assistant Sessions Judge : Provided that no such appeal shall be heard by an Assistant Sessions Judge unless the appeal is of a person convicted on a trial held by any Magistrate of second or third class.
(2) An additional Sessions Judge or an Assistant Sessions Judge shall hear only such appeals as the State Government may, by general or special order, direct or as the Sessions Judge of the division may make over to him.]
SECTION 410: Appeal from sentence of Court of Session:
Any person convicted on a trial held by a Sessions Judge, or an Additional Sessions Judge, may appeal to the High Court. Notes Summary dismissal of appeal.-In dealing with appeals under Section 410 of Cr. P. C. from sentences of Court of Session, the High Cour should give reasons for rejectction of an appeal and if arguable and substantial points are raised, the High Court should not summarily reject the appeal. Dnyanu Hariba Mali v. State of Maharashtra, (1970)3 SCC 7: 1970 SCC (Cri) 357: AIR 1970 SC 979: 1970 Punj LR 992: (1970) 6 DLT 529. The right to prefer an appeal from sentence of Court of Sessions is conferred by Section 410 of the Criminal Procedure Code. The right to appeal is one both on a matter of fact and a matter of law. The High Court should not summarily reject criminal appeals if they raise arguable and substantial points Siddanna Apparao Path v. State of Maharashtra, (1970) 1 SCC 547: 1970 SCC (Cri) 224: AIR 1970 SC 977.
SECTION 411: Appeal from sentence of Presidency Magistrate:
Any person convicted on a trial held by a Presidency Magistrate may appeal to the High Court, if the Magistrate has sentenced him to imprisonment for a term exceeding six months or to fine exceeding two hundred rupees. State Amendments GUJARAT AND MAHARASHTRA In Section 411 delete the words “for a term exceeding six months”.
SECTION 411A: Appeal from sentence of High Court:
State Amendments ANDHRA PRADESH (Added territories) The amendments made in Section 411-A by Mad Act XXXIV of 1955 stand repealed. TAMIL NADU In Section 411-A: (a) in sub-section (1), omit the words “in the exercise of its original criminal jurisdiction”; and (b) in sub-section (2), for the words “in the exercise of its original criminal jurisdiction”, substitute the words “in a trial held by it”. Note An appeal under Section 411-A(l)(a) can succeed only on a ground which involves a matter of law. 1959 Cri LJ 1313: AIR 1959 Cal 693.
(1) * * * Any person convicted on a trial held by a High Court in the exercise of its original criminal Jurisdiction may, notwithstanding anything contained in Section 418 or Section 423, sub-section (2), or [In the Letters Patent or law by which the High Court is constituted, or continued], appeal to the High Court. (a) against the conviction on any ground of appeal which involves a matter of law only ; (b) with the leave of the Appellate Court, or upon the certificate of the Judge who tried the case that it is a fit case for appeal, against the conviction on any ground of appeal which involves a matter of fact only, or a matter of mixed law and fact, or any other ground which appears to the Appellate Court to be a sufficient ground of appeal; and (c) with the leave of the Appellate Court, against the sentence passed unless the sentence is one fixed by law.
(2) Notwithstanding anything contained in Section 417, the State Goverment may direct the Public Procedure to present an appeal to the High Court from any order of acquittal passed by the High Court in the exercise of its original criminal jurisdiction, and such appeal may, notwithstanding anything contained in Section 418, or Section 423, sub-section (2), or [in the Letters Patent or law by which the High Court is constituted or continued], but subject to the restrictions imposed by clause (b) and clause (c) of sub-section (1) of this section on an appeal against conviction, lie on a matter of facts as well as a matter of law.
(3) Notwithstanding anything elsewhere contained in any Act or Regulation, an appeal under this section shall be heard by a Division Court of the High Court composed of not less than two Judges, being Judges other than the Judge or Judges by whom the original trial was held; and if the constitution of such a Divisional Court is impracticable, the High Court shall report the circumstances to the State Government which shall take action with a view to the transfer of the appeal under Section 527 to another High Court.
(4) Subject to such rules as may from time to time be made by [the Supreme Court] in this behalf, and to such conditions as the High Court may establish or require, .an appeal shall lie to [the Supreme Court] from any order made on appeal under sub-section (1) by a Division Court of the High Court in respect of which order the High Court [certifies that the case] is a fit one for such appeal.]
SECTION 412: No appeal in certain cases when accused pleads guilty:
Notwithstanding anything hereinbefore contained, where an accused person has pleaded guilty and has been convicted by [a High Court,] a Court of Session or any Presidency Magistrate or Magistrate of the first class on such plea, there shall be no appeal except as to the extent or legality of the sentence. State Amendments UNION TERRITORIES (except Chandigarh) AND WEST BENGAL In Section 412, for the words “Magistrate of the first class”, substitute the words, “Judicial Magistrate of the first class”, Note The revisional powers of the High Court under Section 439 are even greater and are not in any way curtailed or circumscribed by Section 412, Cr. P. C. and even in a case of a plea of guilty, the High Court can find out whether the conviction was right or not. 1959 (Cri) LJ 211 : AIR 1959 Mani 15.
SECTION 413: No appeal in petty cases:
Notwithstanding anything hereinbefore contained, there shall be no appeal by a convicted person in cases in which [a High Court passes a sentence of imprisonment not exceeding six months only or of fine not exceeding two hundred rupees only or in which] a Court of Session * * * passes a sentence of imprisonment not exceeding one month only, or [in which a Court of Session or District Magistrate or; other Magistrate of the first class passes a sentence] of fine not exceeding fifty rupees only * * *. GUJARAT Same as that of Maharashtra (1). Only with a modification that for the words “Greater Bombay”, the words “City of Ahmedabad” are to be subitituted. MAHARASHTRA (1) In Section 413 : (a) after the words “High Court” insert the words “or the Court of Session for Greater Bombay”; (b) for the words “a Court of Session” where they occur for the first time substitute the words “any other Court of Session” ; (c) after the words “Court of Session” where they occur for the second time insert the words “other than that for Greater Bombay”; and (d) for the words”District Magistrate or other” substitute the letter “a”. (2) The amendments made in Section 413 by Mah. Act XXXII of 1948 are extended to the State merged in the State of Bombay as from 30-3-1950 by Bom. Act IV of 1950. (3) After the reorganisation of the State of Bombay in 1956, the amendments made in Section 413 by the above mentioned Bombay Acts are extended to the newly added areas of Hyderabad, Kutch and Saurashtra and the region of Vidarbha as from 1-9-1959 by the Mah. Act XCVII of 1958. MYSORE In Section 413 for the words “District Magistrate or other Magistrate”, substitute the word “a Magistrate PUNJAB : HARYANA AND CHANDIGARH In Section 413, for the words “or District Magistrate or other Magistrate”, substitute the word “or Chief Judicial Magistrate or other Judicial Magistrate”. RAJASTHAN (Abu Area) Same as that of Maharashtra (1). WEST BENGAL In Section 413, for the words “District Magistrate or other Magistrate”, substitute the words, “a Judicial Magistrate”. UNION TERRITORIES (except Chandigarh) Same as that of Punjab. Notes For appeal from the sentence of’ fine of more that Rs. 50 by a Magistrate of the First Class see Section 486, infra. 1960 Cr LJ 435: AIR 1960 All 214. Misdirection is not of itself a sufficient ground to justify preference with the verdict of the jury unless such misdirection has occasioned a failure of justice. 1958 MPLT768 : 1959 Cr LJ :478: AIR 1959 Madh Pra 132.
Explanation.-There is no appeal from a sentence of imprisonment passed by such Court or Magistrate in default of payment of fine when no substantive sentence of imprisonment has also been passed.
SECTION 414: No appeal from certain summarily convictions:
Notwithstanding anything hereinbefore contained, there shall be no appeal by a convicted person in any case tried summarily in which a Magistrate empowered to act under Section 260 passes a sentence * * * of fine not exceeding two hundred rupees only ** * *.
SECTION 415: Proviso to Sections 413 and 414:
An appeal may be brought against any sentence referred to in Section 413 or Section 414 [by which any punishment therein mentioned is combined with any other punishmentpunishmeni but no sentence which would not otherwise be liable to appeal shall be appealable merely on the ground that the person convicted is ordered to ffind security to keep the peace.
Explanation.-A sentence of imprisonment in default of payment of fine is not a sentence by which two or more punishments are combined within theti meaning of this section.
SECTION 415A: Special right of appeal in certain cases:
[ Notwithstand-Notwitlistan ing anything contained in this Chapter, when more persons than one are convicted in one trial and an appealable judgment or order has been passedss in respect of any of such persons, all or any of the persons convicted at such su trial shall have right of appeal.].]
SECTION 416:
[Saving of sentences on European British subjects.} Rep. by the Criminal in Law Amendment Act, 1923 (12 of 1923), Section 26.
SECTION 417: Appeal in case of acquittal:
“[ Notes However hesitant the High Court may be to set aside an order of acquittal and to order retrial, it has jurisdiction under the Cr. P. C. to do so, if the justice of the case clearly demands it and a case of omission from the charges of a serious offence prima facief>ri disclosed by evidence, is one of those circumstances in which the power can property be prope exercised particularly when the charge for the offence is framed would have the court of trial of its own jurisdiction. (1966) 15 CJ 225 : AIR 1966 SO 356; 1966 Cr LJ 307 Where in an appeal against conviction, the High Court set aside the conviction, the convictM State is competent to file application under Article 134 (1) (c). AIR 1966 SC 1135 Cr L J 815. Where in a cognizable offence, the complainant was examined on oath and the Magistrate e ordered the police to institute a case and make a report, thereafter the police charge- sheeted the accused, held that cognizance was taken on complaint and not on police report A I R 1964 SS C 154. The High Court waa not impressed and quite rightly, by the conclusion of the Sessions Judge that it was the party of the complainant who committed aggression and accordingly the finding of the Trial Court must be deemed to have been displaced. Satwara Chhagan Karsan and others v. State qf Gujarat, (1969)3 SCO 203 : 1970 SCC (Cr.) 59. Appeal against Acquittal-Powers of tbe High Court-Presumption of ionoc- eace of the accused-It is now well-settled that the power of an Appellate Court to review evidence in appeals against acquittal is as extensive as its powers in appeals against convictions. It is also well-settled that before an Appellate Court can set aside the order of acquittal, it must carefully consider the reasons given by the Trial Court in support of its order and must give its own reasons to reject those reasons. It should bear in mind the presumption of innocence of the accused and the fact that the Trial Judge had the advantage of seeing and hearing the witnesses. In brief, the Appellate Court should not disturb an order of acquittal except on very cogent grounds. On an examination of the entire material on record we have come to the conclusion that the High Court was not justified in setting aside the order of the Trial court. Mathai Methew v. State ofMaharashtra, (1970)3 SCC 772. Complainant’s Appeal against the order of Acquittal-Competency.-Khitra- basi Sammual, etc. v. The State of Orissa, (1969)2 SCC 571 : AIR 1970 SC 272 : 36 Cut LT 86. Under Section 419 Cr. P. C. an appeal is made in the form of a petition in writing presented by the appellant or his pleader. Assistant Commissioner was competent to engage counsel and the High Court was in error in upholding the preliminary objections. Municipal Corporation of Delhi v. Shiv Prasad, (1969)3 SCC 783. Appeal from Acquittal-Limitation.-Section 417(4) itself prescribes a period of limitation for an application to be made under Section 417(3). It was not necessary for the legislature to have amended the Limitation Act and to have inserted an article dealing with applications under Section 417(3) ; it was open to it to prescribe a period of limitation in the code itself. Lala Ram v. Hari Ram (1969)3 SCC 173 : 1970 SCC (Cr.) 25. “Entertain”-Meaning of.-“Entertain” means “file or received by the High Court” and it has no reference to the actual hearing of the application for leave to appeal, otherwise the result would be that in many cases applications for leave to appeal would be barred because the applications have not been put up for hearing before the High Court within 60 days of the order or acquittal- Lala Ram v. HariRam, (1969)3SCC 173; 1970 SCC(Cr.)25. Death of Appellant during pendency of Appeal-Appeal whether Abates. -It is clear that an appeal under Section 417 can only abate on the death of the accused and not otherwise. Once an appeal against an acquittal is entertained by the High Court it becomes the duty of the High Court to decide the same irrespective of the fact that the appellant either does not choose to prosecute or is unable to prosecute it for one reason or the other Khedu Mohan v. State of Bihar, (1970)2 SCC 450: 1970 SCC (Cr.) 479. Appeal against Acquittal-Power of the Appellate Court-Manner of Ap- roach.-The power of the Appellate Court in an appeal against acquittal is not different from that it has in appeal against conviction. The difference lies more in the manner of approach and perspective rather than in the content of the power. Gapi Math Ganea Ram Surve v. State ofMaharashtra, (1970)3 SCC 627. If two reasonable conclusions can be reached on the basis of the evidence on record than the view in support of the acquittal of the accused should be preferred. The fact that the High Court is inclined to take a different view of the evidence on record is not sufficient to interfere with the order of acquittal. Khedu Mohton v .State of Bihar, (1970)2 SCC 450- 1970 SCC(Cr.) 479. “Cases”, “Instituted”, “Complainant”-Meaning of.-There can be no manner of doubt that one of the cases was instituted on the report of a police officer and the other on the complaint of the complainant. There can be no question of merger because the identity of the two cases is maintained right up to the end of Sessions Trial. The complain- nt was entitled to move the High Court for special leave in his own case. The order saying that he had no standing cannot, therefore, be sustained. Bhimappa Basappa Bhu Sannavar v Laxman Shivarayappa Samagounda, (1970)1 SCC 665: 1970 SCC (Cr.) 263: AIR 1970 SCC The appeals were rightly not entertained by the High Court because there was no application for grant of special leave under Section 417(3). An appeal under Section 417(3) against acquittal is competent only when there is special leave granted by the High Court. On obtaining special leave the appeal is thereafter filed within thirty days of the grant of leave to escape the mischief of the period of limitation limitation under Article 114 of the Limitation Act. 1971 SCC (Cri) 388.
(1) Subject to the provisions of sub-section (5), the State Government may, in any case, direct the Public Prosecutor to present an appeal to the High Court from an original or appel- ap late order of acquittal passed by any Court other than a High Coourt.
(2) If such an order of acquittal is passed in any case in which the offence has been investigated by the Delhi Special Police Establishment Establislia constituted under the Delhi Special Police Establishment Act, 1946,, the Central Government may also direct the Public Prosecutor to present an appeal to the High Court from the order of acquittal,
(3) If such an order of acquittal is passed in any case instituted upon u complaint and the High Court, on an application made to it by the com- plainant in this behalf, grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court;
(4) No application under sub-section (3) for the grant of special leave to appeal from an order of acquittal shall be entertained by the High Court0 after the expiry of sixty days from the date of that order of acquittal.
(5) If, in any case, the application under sub-section (3) for the grant of grai special leave to appeal from an order of acquittal is refused) no appeal from that order of acquittal shall lie under sub-section (1).]).]
SECTION 418: Appeal on what matters admissible:
[((1)1 An appeal may may lie on a matter of fact as well as a matter of law, except where the trial was by jury, in which case the appeal shall lie on a matter of law only.
[(2) Notwithstanding anything contained in sub-section (1) or in Sec. tion 423, sub-section (2), when, in the case of a trial by jury, any person is sentenced to death, any other person convicted in the same trial with thethe person so sentenced may appeal on a matter of fact as well as a matter of law.].]
Explanation.-The alleged severity of a sentence shall, for the purposes’ of the section, be deemed to be a matter of law.
SECTION 419: 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 judgment or order appealed against, and, in cases tried by a jury, a copy of the charge recorded under Section 367 [or a copy of the transcript of the charge to the jury deliver- ed in English]. Notes Even in cases where an appeal filed under Section 419 is to be dismissed summarily, the provisions of Section 421 are to be complied with. Where an appeal is once admitted the Court can thereafter dismiss it only in accordance with the provision of Section 423. 1960 Ker LJ 181 : 1960 Or LJ 1333: AIR 1960 Ker 314. The Court was not debarred by the law of limitation from receiving a copy of the judgment after the expiry of the period of limitation. 1959 All LJ 37.; : 1959 Cr LJ 1392; AIR 1959 All 786.
SECTION 420: 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.
SECTION 421: Summary dismissal of appeal:
Note An order of Appellate Court that the appeal is admitted only on the question of sentence is invalid and the appellant is entitled to insist that the appeal should be heard on merits 62 Born LR 518 : AIR 1960 SC 748. On the face of it, the judgment of the Special Judge, contains matters which required serious consideration by the High Court. The order of summary dismissal by the High Court was clearly unjustified. Bhanwar Singh v. State ofRajasthan, (1969)3 SCC 763. Appeal raising arguable and substantial Question of Law-Summary Dismis- sal -Not Justified.-The appeal before the High Court was arguable one and raised substantial and important questions. The High Court was not justified in dismissing the appeal summarily. V. Vishinanathanv. The State of Maharashtra, (1969)3 SCC 889. The record of the case demanded reconsideration of evidence. The High Court was justified in summarily dismissing the appeal. Vishwanath Shankar Beldar v. State of Maha- rashtra, (1969)3 SCC 883. It was incumbent on the High Court to issue notice to the State and hear the appeal with the record before it and after evaluating the evidence record or speaking order so that this Court could also have before it the reasoning of the High Court for upholding the appelant’s conviction. The dismissal appeal by the High Court with the one word “dis- missed’ has left the Supreme Court guessing about the line of reasoning which the High Court would have adopted after appropriate scrutiny of the material on the record.-Challappa Ramaswami v. Staff of Maharashtra, (1970)2 SCC 426 : 1970 SCC (Cr.) 472. An order summarily dismissing an appeal by the word “rejected” though not violative appeal statutory provision removes nearly every opportunity for detection of errors in the order. Such an order does not speak and is inscrutable giving no indication of the reasoning underlying it. It may at times embarrass this Court when the order appealed against prima faice gives rise to arguable points which this court is required to consider without having the benefit of the views of the High Court on these points.-Govinda Kadtuji Kadam v. State of Maharashtra, (1970)1 SCC 469:1970 SCC (Cr) 204: AIR 1970 SC 1033: (1970)2 SCJ A summary rejection by an appellate Court under Section 421 may not be violative of the section, nevertheless when an arguable or substantial question arises for consideration, it is improper for an Appellate Court to dismiss the appeal summarily without giving some indication of its view on the point. 1971 SCC (Cr.) 353.
(1) On receiving the petition and copy under Section 419 or Section 420, the Appellate Court shall persue the same, and, if it considers that there is no sufficient ground for interfere- ing, it may dismiss the appeal summarily : Provided that no appeal presented under Section 419 shall be dismissed unless the appellant or his pleader has had a reasonable opportunity of being heard in support of the same.
(2) Before dismissing an appeal under this section, the Court may call for the record of the case, but shall not be bound to do so.
SECTION 422: Notice of Appeal:
If the Appellate Court does not dismiss the appeal summarily it shall cause notice to be given to the appellant or his pleader, and to such officer as the State Government may appoint in this behalf, of the time and place at which such appeal will be heard, and shall, on the application of such officer, furnish him with a copy of the grounds and in cases of appeals under [Section 411-A, sub-section (2), or Sec- tion 417], the Appellate Court shall cause a like notice to be given to the accused NOTES A sentence of six months’ rigorous imprisonment and a fine of Rs. 1,000 could not be said to be severe in a case where there had been an attempt to corrupt a responsible public servant. 1960 MLJ (Cr) 466: AIR 1960 S C 756. Once the complaint has ended in conviction it is the State that comes into the picture and it is the State that has to be given notice to sustain the conviction. 1960 Cr LJ 787: A I R 1960 Andh Pra 311.
SECTION 423: Powers of Appellate Court in disposing of appeal:
Notes In absence of misdirections or non-directions in the charge to the jury, it would not be open to the High Court in appeal to examine the correctness of the verdict of the jury- 1960 Cr LJ 461 : AIR 1960 Born 146. In appeal from an order of acquittal the High Court before reaching its conclusions upon the facts should and will always bestow proper weight and consideration to the views of the trial Judge as to the credibility of the witnesses and should be shown in disterbing the finding of fact. 1959 Ker L J 904 : 1959 Cr LJ 472: AIR 1960 Ker 115. There must be compelling reasons for interference with an order of acquittal.either MPLJ 415: AIR 1960 Madh Pra 188. The High Court also is possessed of the power to set aside an order of acquittal either under Section 423 (1) (a), read with Section 417 or under Section 439. 1959 Andh I T 351 AIR 1960 Andh Pra I (F B). Far failure of justice occasioned by absence of charge and the course to be adopted by the Appellate Court, see Section 23 supra. 1960 Cr L J 857: AIR 1960 All 387. For failure to record supplementary charge to jury, see Section 297 supra. 1960 Cr LJ 337 AIR 1960 Cal 179. The Appellate Court must specifically refer the question of enhancement of sentence to the High Court if it finds that enhancement is called for instead of merely mentioning it in its judgment. 1961 Cr LJ 104 : AIR 1961 Mani 5. An appellate Court can record a finding different from that of the trial Court om deter- mining the case of persons before it where some are acquitted by the trial Court. 1960 Raj LW 565: (1961) I Cr LJ 155: AIR 1961 Raj 24. Sessions Judges and District Magistrates while dealing with revisions should not interfere linless they are convinced that some real and substantial injustice has been caused. 1960 All LJ 64: 1960 Cr LJ 879: AIR 1960 All 436. For interference by High Court on point of apprfciation of evidmae, see Section 417 supra. AIR 1960 SC 734. Where evidence of Medical Officer was taken by predecessor-in-office of Sessions Judge, retrial was not ordered. See Section 350 supra. (1960) 1 Andh WR 108. For power to alter finding, see Section 237, supra. 1960 Cr LJ 857; AIR 1960 All 387.’ There is nothing to prevent the High Court from convicting the accused for murder if upon careful review of the evidence led in the case it can come to the conclusion that the crime is explicable on the hypothesis of his guilt. 1958 Raj LW 353: 1958 Cr LJ 1540: 158 Raj 338. In an appeal from a conviction, the Appellate Court has not only the power but also the duty of examining the correctness of all findings of the trial Court, and if necessary, reversing the same on a re-appreciation of the evidence. But it cannot reverse the order of acquittal of other accused in the appeal preferred by one who has been convicted and where the State Government does not prefer appeal against the acquittal order in favour of others. 1960 Cr LJ 1472 : AIR 1960 Mys 294. The High Court should not interfere in an appeal against an order of acquittal as in criminal cases there is a presumption of innocence of the accused until they are proved guilty. AIR 1958 Mani 1. It is not necessary that re-trial must proceed from point of time at which error in the trial had been committed; it can even proceed from earlier stage in a particular case. 1960 Mad LJ (Cr) 398: (1961) I Cr LJ 598: AIR 1961 Mys 69. An Appellate Court can substitute an appropriate section instead of the wrong section quoted in the charge and in the judgment of the lower Court, and it can alter a conviction for the commission of a substantive offence into one for abetment. 1960 Cr LJ 75 : AIR The words in Section 42 3 (1) (i), Cr. P. Code are sufficiently wide to authorise a re-trial from the point at which the error as illegality in the trial was committed. 1961 Where the verdict of the Jury is vitiated, the High Court has power to either direct a retrial or consider the case on the merits. This power is expressly conferred on the High court by Section 423 (2) when dealing with an appeal whether against acquittal or con- viction. The verdict of the jury being vitiated on account of some defect in law or misdirec- tion the High Court would assume full powers to deal with the appeal in the manner prescribed and for that purpose it may appraise the evidence and decide what course it will follow, AIR 1962 SC 1239. The question of sentence is a matter of discretion and the High Court should not lightly interfere on such a question unless there are strong grounds for interfering in the matter. AIR 1963 All 501. An appeal against acquittal can only be allowed and the trial courts decision interfered with if on examination of all questions of law and fact in all their aspects and reasons it is found that the order is unreasonable. AIR 1964 All 139. A re-trial cannot be ordered merely to enable the prosecution to adduce additional evidence for filling up lacuna. A re-trial can only be made if the appellate Court is satisfied that the trial Court had no jurisdiction or that the trial was vitiated by serious illegalities or irregularities or on account of misconception of the nature of the proceedings there had been no real or that the prosecutor or an accused was, by reason over which he had no control prevented from leading or tendering evidence material to the charge and in the interest of justice the accused should be put on his trial again. An order of re-trial wipes out the earlier proceedings and affords the prosecution to rectify the infirmities disclosed in thje earlier trial. AIR 1963 SC 1531. The High Court examined the matter fully and carefully and on a detailed considera- tion of the evidence came to the conclusion that the assessment of the evidence had resulted in a serious failure of justice. The principles laid down in a series of cases decided by the Supreme Court as regards interference with orders of acquittal have been correctly followed, the High Court was competent to re-assess the evidence for itself. AIR 1964 SC 1541. When an Appellate Court cornel to the conclusion that the acquittal by the lower court was clearly unreasonable, that itself is a Compelling reason for interference. 1962 AW R (SC) 169. Power of High Court to reverse acquittal-Guiding principles.-It has been pointed out before by the Supreme Court as also the Judicial Committee that the powers of the High Court in an appeal from an acquittal are in no way different from those in an appeal from a conviction. The High Court can consider the evidence and weigh the pro- babilities. It can accept evidence rejected by the Sessions Judge and reject evidence accep- ted by him unless the Sessions Judge relied upon his observations of the demeanour of a particular witness. In departing from the conclusions of the Sessions Judge the High Court must pay due attention to the grounds on which the acquittal is based and repel those grounds satisfactorily, bearing in mind always that an accused starts with a presumption of innocence in his favour and this presumption cannot certainly be less strong after the acquittal. If these matters are properly kept in view and the acquittal is reversed, there can be no objection because our Criminal jurisdiction empowers the High Court to reverse an acquittal. Sher Singh v. State of U. P., AIR 1967 SC 1414. Where several persons are charged and only a few are convicted who prefer apppeals against their conviction, it cannot be said that the appellate court is debarred into going into the cases of those who have been acquitted unless there was an appeal in their case against their acquittal. Section 423 (1) (a) does not create a bar against an indirect and incidental examination of the case of the persons acquitted, if it becomes necessary when dealing with the cases of the others. AIR 1962 SC 1211. The powers of the High Court in appeal against an acquittal and conviction are equally wide. In reference with order of acquittal need not be conditioned by any rule of “substantial or compelling reasons”. A judgment also need not be characterised as perverse in order to warrant reversal. (AIR 1963 SO 200; AIR 1961 SC 715 and AIR 1934 PC 227 Relied on). AIR 1966 SC 1775: (1966) 2 SC WR 162. The appellate court has full power to order commitment for trial to the court of sessions, there is no sanction for the view that this power is circumscribed to cases exclusively triable by a court of session. 1962 ALJ 519. . In exercising of the powers conferred by Section 423 (1) (b), Cr.P.C.the High Court cannot in the absence of appeal by the State against the acquittal convert the order of acquittal into one of conviction. That result can be achieved only by adopting the procedure prescribed by Section 439. (AIR 1962 SO 240 applied). In a murder trial of serval accused, one of the accused who was specifically charged under Section 302 I.P.C. was acquitted of that offence but was convicted under Section 302/149 I.P.C. He was also con- victed under Section 326/149 but no separate sentence was passed against him. He filed an appeal against his conviction but the government did not appeal against his acquittal under Section 302 I.P.C. It was held that the High Court in that appeal had no power to alter the conviction from 302/149 I.P.C. to one under Section 302 or Section 326 I P C AIR 1966 S C 1742 : 1966 Cr LJ 1349. When no grievance was made before the High Court regarding the Tribunals refusal to examine defence witnesses residing in Pakistan, the appellant was not allowed to make a fresh grievance before the Supreme Court, that the witnesses in Pakistan were not examined, Bakhshish Singh v. State of Punjab, AIR 1967 S C 752 at 759. Appeal against Acquittal-Enhancement of sentence-Absence of show’ Notice-Legality.-In disposing of an appeal, from an order of acquittal, the High Court is competent to pass a sentence which the Trial Court was empowered to pass. Where the accused is given notice of appeal and actually takes part in the hearing before the High Court it would be superfluous to give him notice to show cause why a sentence within the competence of the Trial Magistrate should not be passed. The accused knows or ought to know that the High Court was bound to form its own conclusions on the material before it and award a sentence which the merits of the case demanded within the limit of the Trial Court’s jurisdiction. The absence of a show cause notice does not violate any known principle of natural justice. Shankar Kerba Jadhav and Others v. The State of Maharashtra, (1969) 2 SCO 793 : (1969) II SCWR 458. Concurrent finding of guilt by courts below-High Court merely brushing aside entire defence version in one sentence-Supreme Court to weigh the evi- dence for itself-Lachman Das v. State of Punjab, (1970) 2 SCC 563 : 1970 SCC (Cri)505 Enhancement of Sentence when Justifled-Caution for Appellate Court Explained -Inam Ali v. State of Assam, AIR 1968 SC 1464. If an appeal is filed by a person sentenced to death, that appeal has to be disposed of before any order is made in the reference confirming the death sentence. In disposing of the appeal the High Court should keep in view its duty under Section 375, Cr. P. C. for examining the entire evidence, for arriving at a view whether further enquiry is divisible and then come to its own conclusions. Failure to the High Court for properly examining the defence evidence was held to be illegal. Bhupendra Singh v. State of Punjab, AIR 1968 SC 1438 at 1440,1441. There is no emphasis on the perusal of the record in Section 421 whereas under Section 423 one of the essential requirements is that the Appellate Court should peruse the record. The Limitation provided under Section 423 is that the Appellate Court before disposing of the appeal must peruse the record. The expression “after perusing such record” in the Section is a condition precedent to a proper disposal of an appeal either by dismissing the same or in other manner contemplated in the said section. 1971 SCO (Ci})
(1) The Appellate Court shall then send for the record of the case, if such record is not already in Court. After perusing such record, and hearing the appel- lant or his pleader, if he appears, and the Public Prosecutor, if he appears, and, in case of an appeal under [Section 411-A, sub-section (2), or Sec- tion 417], the accused, if he appears, the 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 retried 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, (1) reverse the finding and sen- tence, and acquit or discharge the accused, or order him to be retired by a Court of competent jurisdiction subordinate to such Appellate Court or committed for trial, or (2) after the finding, maintaining the sentence, or, with or without altering the fin- ding, reduce the sentence, or (3) with or without such reduction and with or without altering the finding, alter the nature of the sentence but, subject to the provisions of Section 106, sub- section (3), not so as to enhance the same; (c) in an appeal from any other order, alter or reverse such order;. (d) make any amendment or any consequential or incidental order that may be just or proper.
(1A) Where an appeal from a conviction lies to the High Court it may enhance the sentence, notwithstanding anything inconsistent therewith contained in clause (b) of sub-section (1) : Provided that the sentence shall not be so enhanced, unless the accused has had an opportunity of showing cause against such enhancement.]
(2) Nothing herein contained shall authorise the Court to alter or re- verse the verdict of a jury, unless it is of opinion that such verdict is errone- ous owing to a misdirection by the Judge, or to a misunderstanding on the part of the jury of the law as laid down by him.
SECTION 424: Judgments of subordinate Appellate Courts:
The rules con- tained in Chapter XXVI as to the judgment of a Criminal Court of original jurisdiction shall apply, so far as may be practicable, to the judgment of any appellate Court other than a High Court: Provided that, unless the Appellate Court otherwise directs, the accused shall not be brought up, or required to attend, to hear judgment delivered. The Assistant Sessions Judge acts contrary to law in writing, dating and signing the appellate judgment after he bad handed over charge to his successor who pronounces the judgement. The Judgment is not valid. 1960 Raj LW 523: (1961) I Cr LJ 154 : AIR Sections 369 and 424, read together make it clear that a Sessions Judge after having pronounced judgment has no power left to order a rehearing. He cannot alter or review the judgment once signed except for the purposes of correcting a clerical error. Inherent powers cannot be invoked to do what the Code specifically prohibits the court from doing. AIR 1962 SC 1208. When the High Court rejected the plea of self-defence basing its judgment on a portion of a document which was on record, but nad been excluded from evidence, and also failed to consider the evidence of injuries sustained by the excused, held that the judgment of the High Court must be set aside. AIR 1963 SC 340.
SECTION 425: Order by High Court on appeal to be certified to lower Court:
State Amendments TERRITORIES (except Chndigarh) In Section 425, in subjection (1), (i) for the words “District Magistrate”, wherever they occur, substitute the words “Chief Judicial Magistrate”; and (ii) insert at the end the following words ; “and a copy thereof shall be forwarded to the District Magistrate”. WEST BENGAL In Section 425, in sub-section (1), for the words “passed by a”, substitute the following namely,” “pasied by a Judicial Magistrate other than the Sub-divisional Judicial Magis- trate the certificate shall be sent through the Sub-divisional Judicial Magistrate, and if the finding, sentence or order was recorded passed by an Executive’ ‘.
(1) Whenever a case is decided on appeal by the High Court under this chapter, it shall certify its judgment or order to the Court by which the finding, sentence or order appealed against was recorded or passed. If the finding, sentence or order was recorded or passed by a Magistrate other than the District Magistrate, the certificate shall be sent through the District Magistrate.
(2) The Court to which the High Court certifies its judgment or order shall thereupon make such orders as are conformable to the judgment or order of the High Court; and, if necessary, the record shall be amended in accourdance therewith.
SECTION 426: Suspension of sentence pending appeal: Release of appellant on bail:
(1) Pending any appeal by a convicted person, the Appel- late Court may, for reasons to be recorded by it in writing, order that the execution of the sentence or order appealed against be suspended and) also, if he is in confinement, that he be released on bail or on his own bond.
(2) The power conferred by this section on an Appellate Court may be exercised also by the High Court in the case of any appeal by a convicted person to a Court subordinate thereto. ‘,
[(2-A) When any person other than a person [convicted of a non-] bailable offence] is sentenced to imprisonment by a Court, and an appeal lies from that sentence) the Court may, if the convicted person satisfies the Court that he intends to present an appeal, order that he be released on bail for a period sufficient in the opinion of the Court to enable him to present the appeal and obtain the orders of the Appellate Court under sub-section (1) and the sentence of imprisonment shall, so long as he is so released on bail, be deemed to be suspended.]
[(2-B) Where a High Court is satisfied that a convicted person has been granted special leave to appeal to the Supreme Court against any sen- tence which the High Court has imposed or maintained, the High Court may, if it so thinks fit, order that pending the appeal the sentence or order appealed against be suspended, and also, if such person is in confinement, that he be released on bail.]
(3) When the appellant is ultimately sentenced to imprisonment, * ** * or [imprisonment for life], the time during which he is so released shall be excluded in computing the term for which he is so sentenced. The Government has no power to suspend sentence while petition for special leave to appeal is pending before Supreme Court. (1961) I Cr LJ 173-AIR 1961 SC 112. See aha Section 561-A. AIR 1967 SC 256 : 1967 Cr LJ 286.
SECTION 427: Arrest of accused in appeal from acquittal:
When an ap- peal is presented under ^[Section 4U-A, sub-section (2), or Section 417], the High Court may issue a warrant directing that the accused be arrested and brought before it or any subordinate Court, and the Court before which he is brought may commit him to prison pending the disposal of the appeal, or admit him to bail.
SECTION 428: Appellate Court may take further evidence or direct it to be taken:
State Amendments GUJARAT,-Same as that of Maharashtra (1). MAHARASHTRA (1).-In sub-section (1) of Section 428, for the words “by a Magistrate” substitute the words “by a Judicial Magistrate.”. (2) After the reorganisation of the State of Bombay in 1956, the amendment made in section 428 by the above-mentioned Bombay Act is extended to the newly added areas of Hyderabad, Kutch and Saurashtra and the region of Vidarbha as from 1-9-1959 by Mah. Act XCVII of 1958. PUNJAB, HARYANA, CHANDIGARH,-In sub-section (1) of Section 428, for the word Magistrate” occurring twice, substitute the words “Judicial Magistrate.” RAJASTHAN (Abu Area).-Same as that of Maharashtra (1). UNION TERRITORIES (except Chandigarh) AND WEST BENGAL.-Same as that of Punjab, Notes The wording of Section 428(2), Cr P. C. is wide enough to permit the bringing in of additional evidence at the stage of appeal subject to the usual caution. 1960 MPLJ 1226 : (1961)l Cr LJ 89: AIR 1961 MP 10: AIR 1965 SC 1887: (1965) 2 CrLJ 712. Two things are noticeable in Section 429, Cr. P.C. First, that the case shall be laid before another Judge, and, secondly the judgment and order will follow the opinion of third learned Judge. So the third Judge can or will deal with the whole case. Hethubha Alia Jithuba v. The State of Gujarat, 1970(1) SCC 720 : 1970 SCC (Cr) 280 : AIR 1970 SC 1266 : ‘The language of Section 429 of the Code of Criminal Procedure is explicit that the case with the opinion of tlie judges comprising the Court of Appeal shall be la id before another judge of the same court. The other noticeable feature in Section 429 of the Code of Criminal Procedure is that the judgment or order shall follow the opinion of the third learned judge.
(1) In dealing with any appeal under this chapter, the Appellate Court, if it thinks additional evidence to be necessary, shall record its reasons, and may either take such evidence itself, or direct it to be taken by a Magis- tarte or, when the Appellate Court is a High Court, by a Court of Session or a Magistrate.
(2) When the additional evidence is taken by Court of Session or the Magistrate, it or he shall certify such evidence to the Appellate Court, and such Court shall thereupon proceed to dispose of the appeal.
(3) Unless the Appellate Court otherwise directs, the accused or his pleader shall be present when the additional evidence is taken ; but such evi- dence shall not be taken in the presence of jurors * * *.
(4) The taking of evidence under this section shall be subject to the provisions of Chapter XXV, as if it were an inquiry.
SECTION 429: Procedure where Judges of Court of Appeal are equally divided:
When the Judges composing the Court of Appeal are equally divided in opinion, tlie case, with their opinions thereon, shall be laid before another Judge of same Court, and such Judge, after such hearing (if any) as he thinks fit, shall deliver his opinion, and the judgment or order shall follow such opinion. Notes Unless there are strong and compelling reasons to displace the opinion of the Judge favouring an acquittal, the golden rule for the third Judge to follow is to give the benefit of doubt to the accused. 1859 Andh LT 139 : 1959 Cr LJ 689: AIR 1959 AP 313. Where the conflicting opinion of two Judges is placed before a third Judge he would consider the two opinions and give his own. The decision of the Court would then be the opinion of the third Judge. Although such third opinion is given after considering the earlier opinions, the third opinion cannot be equated to an appeal. 1962 ALJ (SC) 748; 1964 (1) CrLJ 78: (1965)2 SCJ202. The third judge is completely free in resolving the difference as he thinks fit-AIR 1965 SC 1467: (1965) 2 Cr LJ 539. In case of death of complainant during pendency of committal enquiry the analogy of Section 431 regarding the abatement of appeal on the death of the accused, does not apply. Ashwin v. State of Maharashtra, AIR 1967 SC 983 at 985.
SECTION 430: Finality of orders on appeal:
Judgments and orders passed by an Appellate Court upon appeal shall be final, except in the cases provided for in Srvtion 417 and Chapter XXXII
SECTION 431: Abatement of appeals:
Every appeal under [Section 411-A, sub-section (2), or Section 417J shall finally abate on the death of thr accused, and every other appeal under this chapter (except an appeal from a sentence of fine) shall finally abate on the death of the appellant. Note Where the High Court thinks it fit and proper to entertain an application in revision ot calls for the record suo motu this notwithstanding the death of the convicted person pending the revision, it has the power to examine the whole question of the correctness, propriety or legality of the sentence of fine, which necessarily involves the determination of the order of conviction itself. 1959 Cr LJ 256 : 1959 All LJ 293 : AIR 1959 SC 144.
CHAPTER 32: OF REFERENCE AND REVISION:
SECTION 432: Reference to High Court:
[State Amendments ANDHRA PRADESII.-In the Explanation below sub-section (1) of Section 432, after the words “any Regulation of the Bengal, Bombay or Madras Code,” insert the words “or any Regulation of the Madras Code in force in the State of Andhra as it existed immediately be- fore the 1st November, 1956.” TAMIL NADU (Added Territories).-In the Explanation to sub-section (1) of Section 432, for the words “State of Andhra as it existed immediately before the 1st November 1956” inserted by An. P.A.L.O., 1957, substitute the words “territories specified in the Schedule to the Andhra Pradesh and Madras (Alteration of Boundaries) Act, 1959 (LVI of 1959).” Where the Presidency Magistrate was of the opinion that he wrongly charge-sheeted the accused under Section 500, Penal Code in violation of provisions of Section 198, he should bring the matter to the notice of the High Court instead of proceeding to pass an order of aquittal. 1960 CrLJ 158: AIR 1960 SC 82.
(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 of the Bengal, Bombay or Madras Code or Regulation as defined in the General Clauses Act, 1897, or in the General Clauses Act of a State.
(2) A Presidency Magistrate may, if he thinks fit in any case pending before 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 the decision of the High Court there- on, either commit the accused to jail or release him on bail to appear when called upon.]
SECTION 433: Disposal of case according to decision of High Court:
(1) when a question has been so referred, the High Court shall pass such order thereon as it thinks fit, and shall cause a copy of such order to be s^nt to the Magistrate by whom the reference was made., who shall dispose of the case conformably to the said order.
Direction as to costs.-(2) The High Court may direct by whom the costs of such reference shall be paid.
SECTION 434:
[Power to reserve questions arising in original jurisdiction of High Court. Procedure when question reserved.] Rep. by the Criminal Procedure Amendment Act, 1943(26 of 1943), Section 6.
SECTION 435: Power to call for records of inferior Courts:
State Amendments ANDHRA PRADESH (Added Territories).-The amendments made in Section 435 by Madrai Act XXXIV of 1955 shall stand repealed. GUJARAT.-Same as that of Maharashtra (1) subject to cartain modifications for the words “Greater Bombay” the words “City of Ahmedabad” are to be substituted. MAHARASHTRA.-(1) Substitute for Section 435 the following: “435. (1) The High Court or any Sessions Judge other than the Sessions Judge of the Court of Session for Greater Bombay may call for and examine the record of any proceeding before any inferior Criminal Court situate within the local limits of its or his jurisdiction for the purpose of satisfying itself or himself as 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 be suspended and, if the accused is in confinement, that he be released on bail or on his own bond pending the examina- tion of the record, (2) The District Magistrate or any Sub-divisional Magistrate empowered by thel State Government in this behalf, may call for and examine the record of any procee- dings before any subordinate Executive Magistrate for the purpose of satisfying himself as to the correctress, legality or propriety of any order recorded or passed and as to the regularity of any proceedings of such Subordinate Magistrate and may, when calling for such record, direct that the execution of any order be suspended and if the person is in confinement that he be released on bail on his own bond pending the examination of the record, (3) If any Sub-divisional Magistrate acting under sub-section (2) considers that any such proceeding or order is illegal or improper he shall forward the record with such remarks thereon as he thinks fit to the District Magistrate. (4) The High Court may call for and examine the record of any proceeding in respect of an order made undersections 118, 122, 143, 144 or 145, notwithstanding the fact that such proceeding was before an Executive Magistrate or the Commissioner of Police, as the case may be.” (2) After the reorganisation of the State of Bombay in 1956, the amendments made in Section 435 by the above-mentioned Bombay Acts are extended to the newly added areas of Hyderabad, Kutch and Saurashtra and the region of Vidarbha as from 1-9-1959 by the Bombay Act XCVII of 1958. MYSORE (t) in sub-section (1), the words “or District Magistrate, or any Sub-divisional Magistrate empowered by the State Government in this behalf” and the expla- nation to the said sub-section are omitted, and (ii) sub-sections (2) and (4), emitted. PUNJAB, HARYANA and CHANDIGARH.-In Section 435,- (i) In sub-section (1), for the words “or District Magistrate, or any Sub-divisional Magistrate empowered by the State Government in this behalf”, substitute the words “or Chief Judicial Magistrate” ; and (ii) for sub-sections (2) and (4) the following sub-sections shall be substituted “(2) Same as sub-section (2) in Section 435 in Maharashtra (1). (3) Same as sub-section (3) of Section 435 in Maharashtra (1). (4) Same as sub-section (4) of Section 435 in Maharashtra (1). excluding the words at the end namely “or the Commissioner of Police as the case may be”. (5) If an application under sub-section (1) has been made cither to the Sessions Judge or the Chief Judicial Magistrate no further application shall be entertained by the other of them,” RAJASTHAN (Abu Area).-Same as that of Maharashtra (1). TAMIL NADU.-After the words “any Sessions Judge” insert the words “other than the sessions Judge in the City of Madras”. UNION TERRITORIES (except Chandigarh).-For Section 435, substitute the following, namely: “435. Power to call for records of Inferior Courts.-(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 the local limits of its or his jurisdiction and any Chief Judicial Magistrate may call for and examine the record of any proceedings before any Judicial Magistrate under his jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality, or property of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of such inferior Court or such Magistrate, as the case may be, 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. (2) Same as that of Maharashtra (2). (3) Same as that of Maharashtra (3). (4) Same as that of Punjab (4). (5) If an application in respect of any proceeding before any Judicial Magistrate other than the Chief Judicial Magistrate has been made under sub-section (1) either to the Sessions Judge or the Chief Judicial Magistrate, no further application shall be entertained by the other of them and if an application in respect of any proceeding before any Executive Magistrate has been made to the Sessions Judge under sub- section (1) or to the District Magistrate under sub-section (2), no further application shall be entertained by the other of them.” UTTAR PRADESH.-Delete the words “whether exercising original or appellate jurisdiction from the Explanation. WEST BENGAL.-In Section 435,- (1) in sub-section (1), for the words “District Magistrate, or any Sub-divisional Magistrate empowered by the State Government” substitute the words, “any Sub- divisional Judicial Magistrate empowered by the State Government, in consulta- tion with the High Court;” (2) in sub-section (2), for the words “Sub-divisional Magistrates” and “District Magistrate”; substitute the words “Sub-divisional Judicial Magistrates” and “Sessions Judge”) respectively; (3) in sub-section (4), for the words “District Magistrate”, substitute the words “Sub-divisional Judicial Magistrate”; and (4) after sub-section (4), insert the following sub-sections, namely : “(5) Any District Magistrate or any Sub-divisional Executive Magistrate empowered by the State Government in this behalf, may call for and examine the record of any proceeding before any Subordinate Executive Magistrate for the purpose of satisfying himself, as to the correctness legality or propriety of any order recorded or passed and as to the regularity of any proceeding before such subordinate Magistrate and may, when calling for such record, direct that the execution of any order be suspended and if the person is in confinement, that he be released on bail or on his own bond pending the examination of the record. (6) If any Sub-divisional Executive Magistrate, acting under sub-section (5) considers that any such proceeding or order is illegal or improper, he shall forward the record with such remarks thereon as he thinks fit to the District Magistrate.” Notes It is hardly necessary to say that when an appeal is found as time-barred and there is so sufficient cause for condonation, the only result that can follow is the dismissal of the appeal, The Sessions Judge, before invoking the revisional powers of the High Court by referring the case must examine the record of the inferior Courts, 1960 MLJ (Cr) 157, In a case which has proceeded on a police report a private party cannot invoke jurisdic- tion under Section 435. AIR 1966 SG 911 : 1966 Cr LJ 700. The High Court has ample power to review its own prior order in revision when the Sessions Court negatives the plea of autrefois acquit offered by the accused under Section 403 on the case again being sent for retrial by the High Court, on charges of murder and dacoity of which he had already been acquitted by the Sessions Courts. 1959Andh LT 351 : AIR 1960 AP 1 (FB). For powers of the High Court in revision. See Section 369 supra. AIR 1960 AP 1 (FB). In a case of violation of order under Section 144, the person arrested can apply under Section 435 before waiting for conviction under Section 188, Penal Code. See Section 144 supra. AIR 1961 Mani 12. Practice of the Allahabad High Court has always been not to entertain revision applica- tion unless lower court has first been approached. 1960 All LJ497: 1960 Cr LJ 1301: AIR 1960 All 636. For jurisdiction of Sessions Judge, see Section 436 supra. 1960 Cr LJ59: AIR 1960 Cal 58. Powers of the High Court in revision while dealing with the cases of acquittal. -The ambit of the powers of the High Court under Sections 435 and 439, Cr. P.C, in dealing with the cases of acquittal has been explained by this court in more than one deci- sion. Ibrahim Haji Moidee, Ummer Haji v. Food Inspector, Nileshwar, 1969 (3) SCC 901. That the order of the Magistrate was an order of discharge and not of acquittal. It is true that it is a summons case and no formal charge is necessary to be framed under Sec- tion 242, Cr. P.C. but even so here when the accused appeared before anything was done the accused filed preliminary objections and no particulars of the offence of which the accused was charged were even stated to him (Revision maintainable). Municipal Council, Raipur v., State of Madhya Pradesh, 1969 (2) SCC 582. High Court’s power-Reversal on facts-Propriety.-The powers of the High Court under Section 439, Cr. P.C., although wide are subject to certain limitations. Sec- tion 439(4) expressly provides that the section shall not be deemed to authorise the High Court to convert a finding of acquittal into one of conviction, The High Court procetded to re-appraise the evidence of the witnesses and upset the finding of the Magistrate therein on the ground that he “had not taken the trouble of sifting the grain from the chaff”. Clearly such a course is not permissible under Section 439, Cr. P.C. The facts and circu instances of this case do not warrant the ordering of a re-trial by the High Court if it felt disposed to exercise powers under Section 423, Cr. P.C. expressly included in Section 439. Khetrabasi Samual v. State of Orissa, 1969 (2) SCC 571 : AIR 1970 SC 272 : 36 Cut LJ 86.
(1) The High Court or any Sessions Judge or District Magistrate, or any Sub-divisional Magistrate empowered by the State Government in this behalf, may call for and examine the record of any proceeding before any inferior Criminal Court situate within the local limits of its or his jurisdiction for the purpose of satisfying ilself or himself as 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 exercising original or appellate jurisdiction, shall be deemed to be inferior to the Sessions Judge for the pur- poses of this sub-section and of Section 437].
(2) If any Sub-divisional Magistrate acting under sub-section (1) consi- ders that any such finding, sentence or order is illegal or improper, or that any such proceedings arc irregular^ he shall forward the record, with such remarks thereon as he thinks fit, to the District Magistrate. * * * * * *
(4) If an application under this section has been made either to the Sessions Judge or District Magistrate, no further application shall be enter- tained by the other of them.
SECTION 436: Power to order inquiry:
On examining any record under Section 435 or otherwise, the High Court or the Sessions Judge may direct the District Magistrate by himself or by any of the Magistrates subordinate to him to make, and the District 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 (3) of Section 204, or into the case of any [person accused of an offence] who has been discharged: State Amendments GUJARAT-Same as that of Maharashtra (1). ” Subject to certain’s modifications however, for the words “Greater Bombay” the words “City of Ahmedabad” are to be substituted. MAHARASHTRA (1) (i) after the words “Sessions Judge” insert the words “other than the Sessions Judge of the Court of Session for Greater Bombay;” (ii) re-number the section as sub-section (1) of that section; (iii) in sub-section (1) so re-numbered, for the words “the District Magistrate by himself or by any of the Magistrates subordinate to him to make, and the District Magistrate may himself make, or direct any subordinate Magistrate to make” substitute the words “the Judicial Magistrate to make” ; (ii) add the following new sub-section namely : “(2) On examining any record under Section 435 or otherwise, the District Magis- trate may direct any Sub-Divisional Magistrate or any other Executive Magis- trate subordinate to him to make, and the Sub-Divisional Magistrate may himself make or direct any subordinate Magistrate to make, further inquiry into any proceedings in which an order of release or discharge has been made under Section 119: Provided that no District Magistrate shall make any direction under this section for further inquiry into the case of any person unless such person has had an oppor- tunity of showing cause why such direction should not be made.” (2) After the reorganisation of the State of Bombay in 195