CIVIL

Arrest and Investigation-Maharashtra Criminal Manual

CHAPTER I

ARREST AND INVESTIGATION

Article 22(2) of the Constitution of India requires that person arrested or detained in custody should be produced before the nearest Magistrate within 24 hours of such arrest excludidng the time necessary for the journey from the place of arrest to the court of the Magistrate, and that no such person should be detained beyond such period without the authority of the Magistrate. The Criminal procedure Code also make a similar provision in respect of persons arrested without warrant. In case of a complaint ,the Magistrate should check the time of arrest by questioning the persons arrested, and see that this important constitutional safeguard for the personal liberty of the subject is not violated.

Attempts are sometimes made to evade the law by describing custody or detention of any kind as ‘nazarkaid ’ or surveillance. Surveillance is one thing and detention in any kind of custody is another. It is a mere evasion of the law to keep a suspected person in any kind of custody and then by calling such detention ‘nazarkaid’ to say that he is not under arrest. The system is still more objectionable when applied to witnesses.

If the Magistrate finds that any person has been unlawfully detained, he shall report the matter to the Sessions Judge, who shall take appropriate action in the matter Women accused of any offence, if arrested so soon after child birth that they can not at once be taken before the Magistrate without personal suffering and risk to health should not ordinarily be removed until they are in a proper condition to travel. They should be allowed to remain under proper charge in the care of their relations, or be sent to the nearest dispensary, and suffered to remain there until the officer in charge of the dispensary certifies that they are sufficiently recovered. In such cases,sanction must be obtained by the police from the nearest Magistrate for their dentention at their homes, or in the dispensary, beyond the period of 24 hours allowed by section 57 of the code of criminal procedure,1973. The same procedure should be followed in the case of other accused persons who are too ill to travel.

(1) If any allegations of ill-treatment is made by a prisoner, the Magistrate shall then and there examine the prisoner’s body,if the prisoner consents, to see if there are any marks of injuries as alleged, and shall place on record the result of his examination. If the prisoner refuses to permit such examination ,the refusal and the reason therefor shall be recorded. If the Magistrate finds that there is reason to suspect that the allegation is well founded, he shall at once record the complaint and cause prisoner to be examined by a Medical Officer or registered Medical Practitioner as provided in section 54 of the Code of Criminal Procedure,1973 and shall make a report to the Sessions Judge. If he has not ht power to take up the necessary inquiry himself, he should forward the prisoner with the record to the Judicial Magistrate having Jurisdiction to investigate the case.

Attention of the Magistrate is invited to the provision of section 54 of the Code of Criminal Procedure,1973, which lays down that the Magistrate shall, at the request of the arrested person, direct the examination of the body of such arrested person by a Registered Medical Practitioner in case of his allegation before him that such examination of his body will afford evidence which will disprove the commission by him of any offence or which will establish the commission by any other person of any offence against his body.

(2) (i) Medical Officer in charge of jails must carefully examine the body of every undertrial prisoner on the day of his arrival in jail or at least on the day following:

(ii) Similarly, in the case of third class subsidiary jails, if there is a Sub-Assistant Surgeon or other Medical Officer in local charge of the place, every undertrial prisoner should be examined by him ,if present at the station, within 24 hours of admission;

(iii) In the case of lockups and subsidiary jails at places where there is no Medical officer or the Registered Medical Practitioner, as the case may be,the officer in charge in all suspicious cases should send undertrial prisoners in custody to the nearest Medical Officer or the Registered Medical Practitioner ,as the case may be for examination.

(iv) A Medical Officer or the Registered Medical Practitioner ,as the case may be, to whom a person in police custody is brought for examination ,should examine the person of the prisoner ,and even though no suspicious marks are found,should at once report to the Magistrate authorising police custody that he has done so.

(3) In all such cases, the Medical Officer or the Registered Medical Practitioner, as the case may be, should record the result of the examination.

(4) If any marks or symptoms at all indicative of recent violence or ill-treatment are found, the Medical Officer or the Registered Medical Practitioner, as the case may be, concerned,should immediately make a report to the appropriate Judicial Magistrate and to the Sessions Judge. This report should specify the nature of the injuries and their position, together with the opinion of the Medical Officer or the Registered Medical Practitioner, as the case may be ,as to their causation, and should state whether the prisoner makes any allegations in regard to them against the police or others responsible for his arrest or custody, or state how else the prionser explains them.

(5) If such allegations have been made, the Sessions Judge should arrange for an immediate Magisterial investigation into the complaint through such Judicial Magistrate as he may deem most convenient, unless he is satisfied by the Magistrate’s report under Sub-paragraph(1) above, that adequate investigation is proceeding.

(6) The result of this investigation,so far as it refutes or establishes the truth of the allegations made, must be communicated as soon as possible to the Court seized of the substantive case If it considers it desirable or necessary , the Court may summon the Medical Officer or the Registered Medical Practitioner, as the case may be, to give evidence in the case.

Remand

4.(1) It is observed that Magistrates allow remand of the accused to custody under section 167 of the Code of Criminal Procedure,1973, or allow remand under section 309 of the Code of Criminal procedure,1973, without satisfying themselves that there are reasonable grounds for such remand. The law requires that Magistrates should not allow remand in such cases without being satisfied that there are really good grounds for it. Magistrates should not ,therefore, allow remand applications as a matter of course, but only after being satisfied that further time is really necessary for the purpose of investigation. In this connection ,the attention of all the Courts is invited to the rulings reported in A.I.R. 1975 S.C.1465 (Natabar Parida Vs. State of Orissa) and 78 B.L.R.,page 411 (State of Maharashtra Vs. Tukaram Shiva Patil).

In this connection ,attention of the Magistrates is drawn to the provisions of section 167(1) of the Code of Criminal Procedure 1973 which makes it obligatory on the police to send copies of entries in the diary relating to the case when forwarding the accused for the purposes of remand. Magistrates should invariably insist upon copies of such entries and other relevant material being produced by the police, and such entries and material should be carefully examined by the Magistrates in order to satisfy themselves that there are good grounds for remand.

5- while it is not intended to fetter the discretion of the Magistrates in matters of remand, the following general principles are stated for their guidance :-

(i) A remand to police custody of an accused person should not ordinarily be granted unless there is reason to believe that material and valuable information would thereby be obtained, which cannot be obtained except by his remand to police custody.

(ii) Where a remand is required merely for the purpose of verifying a statement made by the accused, the Magistrate should ordinarily remand the accused person to Magisterial custody.

(iii) If the Magistrate thinks that it is not necessary for purposes of investigation to remand the accused to police custody, he should place the accused person in Magisterial custody ; and in case he has no jurisdiction to try the offence charged, he should issue orders for forwarding the accused person to a Magistrate having Jurisdiction.

(iv) If the Magistrate thinks that the police not only require more time for their investigation but that for some good reason they require the accused person to be present with them in that investigation ,the Magistrate may remand him to police custody ,but while doing so, he must record the reasons for his order.

6-When the accused person is remanded either to police custody or to some safe custody for the purpose of further investigation by the police, it must be borne in mind that ,however incomplete an investigation may be, an accused person in every case must be produced before a Magistrate having jurisdiction within a maximum period of 16 days ( 1 day allowed by the law if so much be necessary, and 15more days which may be allowed by a Magistrate on proper cause shown).

7-No order under section 167 for remand of an accused person should be made unless the accused is produced before the Magistrate making the order,either in person or through the medium of electronic video linkage, and he has been heard on any objection he may have to offer to the proposed order of remand, unless the production of the accused is required to be dispensed with under paragraph 2 of this chapter.

Explanation.– For the purpose of Section 167 of the Criminal Procedure Code expression “Production of the accused before the Magistrate” shall include “his production through the medium of video linkage by interface ” unless the production of the accused is required to be dispensed with under paragraph 2 of this Chapter.

Facilities to Accused in police Custody or Jail to Interview Relatives and Legal Advisers.

8-Complaints are sometimes made that accused persons in police custody are not accorded necessary facilities to interview their relatives and legal advisers.

Article 22 of the Constitution of India provides as follows:-

Article 22- (1) No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty-four hours of such arrest excluding the time necessary for the journey from the place of arrest to the court of the magistrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate.

(3) Nothing in clauses (1) and (2) shall apply:-

(a) to any person who for the time being is an enemy alien; or

(b) to any person who is arrested or detained under any law providing for preventive detention.

(4) No law providing for preventive detention shall authorise the detention of a person for a longer period than two months unless an Advisory Board constituted in accordance with the recommendations of the Chief Justice of the appropriate High Court has reported before the expiration of the said period of two months that there is in its opinion sufficient cause for such detention:

Provided that an Advisory Board shall consist of a Chairman and not less than two other members, and the Chairman shall be a serving Judge of the appropriate High Court and the other members shall be serving or retired Judges of any High Court ;

Provided further that nothing in this clause shall authorise the detention of any person beyond the maximum period prescribed by any law made by parliament under sub-clause (a) of clause (7).

Explanation—- In this clause, “ appropriate High Court ” means—

(i)in the case of the detention of a person in pursuance of an order of detention made by the Government of India or an officer or authority subordinate to that Government ,the High Court for the Union Territory of Delhi;

(ii) in the case of the detention of a person in pursuance of an order of detention made by the Government of any state (Other than a Union territory), the High Court for that State ; and

(iii) in the case of the detention of a person in pursuance of an order of detention made by the administrator or a Union territory or an officer or authority subordinate to such administrator, such High Court as may be specified by or under any law made by parliament in this behalf.

When any person is detained in pursuance of an order made under any law providing for preventive detention ,the authority making the order shall,as soon as may be, communicate to such a person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order.

Nothing in clause (5) shall require the authority making any such order as is referred to in that clause to disclose facts which such authority considers to be against the public interest to disclose.

Parliament may by law prescribe–

(a) the Maximum period for which any person may in any class or classes be detained under any law providing for preventive detention ; and

(b) the procedure to be followed by an Advisory Board in an inquiry under clause (4).

An accused person, who is remanded into police custody , has a right to claim a reasonable opportunity of getting into communication with his legal advisor for the purpose of preparing his defence, and the police cannot legitimately claim that in no circumstances should he be allowed to see his legal advisor until they choose to permit it.

9.It has been observed that no uniform practice is followed in the criminal courts with regard to giving intimation to an accused who is in jail in one case that he is required to be produced for the trial in any other case.

The Magistrate or the judge should see that sufficient notice is given to the accused about the subsequent case so that he may get an opportunity of defending himself. On the production of the accused from the jail, the magistrate or the judge concerned should himself make sure whether in fact sufficient opportunity has been given to the accused to get in touch with his relatives or his lawyer and commence hearing only after he has had such opportunity.

10-Under Section 157 of the Code of Criminal Procedure 1973 it is obligatory on the part of the officer in charge of a police station to sent report forthwith to magistrate empowered to take cognizance of an offence on a police report regarding information received by him about the commission of a cognizable offence. In case the magistrates find that proper steps are not being taken by the police ,they may take

such action under section 159 of the code of Criminal Procedure,1973 as they may deem fit.

Section 165(5) lays down that copies of any record made under sub-section (1) or sub-section (3) of that section relating to search of places should be sent by the Investigating Officer to the nearest magistrate empowered to take cognizance of the offence . This section further lays down that the owner or occupier of the places searched shall,on application ,be furnished with a copy of the same free of cost by the magistrate. This provision lays down a very salutary safeguard so far as the right of a citizen is concerned. All such records shall be immediately transferred to the case as soon as it is filed in the court.

Bail

The power of admitting a person to bail is a matter of judicial discretion, and not a ministerial act ; and the chief consideration in the exercise of that discretion must be the likelihood of the person failing to appear at the trail. Other considerations to be borne in mind are the seriousness of the offence,previous convictions, if any, of the accused,abnormal conditions and necessity to take special precautions in particular cases. Interim Bail is, however,permissible ,but in serious cases the prosecution may, wherever possible,be heard. Bail should not be refused nor prohibitive bail insisted upon, merely on the ground that the police desire it, for such a decision may lead to grave injustice. The Court may, however, take into consideration the information supplied and the reports made by the police.

In respect of anticipatory bail, provided by section 438 of the Code of Criminal procedure 1973, the attention of the Sessions Courts is invited to the decision of the Supreme Court reported in A.I.R.,1977 ,S.C. Page 366 (Balchand Jain Vs. State of Madhya Pradesh).

Practising Lawyers not to be accepted as Sureties Practising lawyers shall not be accepted as sureties.

Verification of Solvency of Sureties

(1) The responsibility for accepting the surety as solvent for the required

amount is primarily that of the presiding Officer of the Court and in ordinary cases

he should discharge it himself by making such summary enquiry as in the circumstances of the case he may think fit.

(2) The production of a solvency certificate from the Revenue Authorities is not

always essential and may be insisted upon only in cases of doubt and cases involving large sums.

(3) For the purpose of determining whether the sureties are solvent, the Court may, if it thinks fit, accept affidavits in proof of the facts contained therein relating to the solvency of the sureties, or may make such further inquiry as it deems necessary.

Insistence upon the possession of immovable property by sureties in bonds of

small amounts not exceeding Rs. 1,500 would cause serious inconvenience to the

accused in procuring a surety. The Judge or Magistrate may, therefore, in suitable

cases, where the amount of the bond does not exceed Rs. 1,500 assess the solvency

of the surety even upon the basis of his movable property and assets. The intendings surety should present his application for suretyship ink the model form

which is prescribed below for guidance. The Clerk of the Court in the Sessions Court or Nazir or Senior Clerk in the Magisterial Courts should check the proofs

accompanying the applications, and thereafter place the matter before the Judge

or Magistrate with his remarks. The Judge or Magistrate should consider the application in the light of the proofs produced and, if necessary, examine the surety

personally and may also call for further and better proof. The Judge or Magistrate

after holding a summary enquiry may pass an order either accepting the surety or

rejecting the application as he deems fit.

To facilitate checking one person standing surety in several cases, a declaration

form should be appended to the surety bond and intending surety should be asked

to sign a declaration stating whether he has stood surety in any other pending cases.

Such a declaration would enable the Police Officer or the Magistrate concerned to

decide whether the surety should be accepted or not. If the declaration thus signed

by a surety is found to be false subsequently, necessary action can be taken against

him for such a false declaration.

5A- To avoid abscondence of accused due to furnishing of bogus surety or surety, bond by a stock surety, in addition to the proof as mentioned in sub-clause 3 of the Format of Application of surety, the surety, in all cases under the NDPS Act, the cases in which offence is serious and sentence provided is more than 10 years imprisonment or the cases under the Special enactment like POTA/MOCCA etc., shall furnish atleast one of the document, amongst following :-

1) Passport.

2) Identity Card Issued by the Election Commission of India.

3) Permanent Account Number Card, i.e. PAN card issued by the Income-Tax Department .

4)ATM/Debit Card, or Credit Card issued by any Nationalised or Private Bank on Standing at the National Level, having photograph of the holder thereon.

5) Identity Card issued by the Government Authorities or the Public Statutory Corporations.

6) Any such document, which is ordinarily issued by an Authority after due verification of the identity of the person and his address, which the Judge or the Magistrate may think just and proper, in the interest of justice, by recording specific reason.

5B. The Surety shall submit two copies of his latest passport size photograph which is not older than six months before the date of submission, of which one copy shall be retained in the court record and one copy to be retained by the concerned police station.

FORM

In the Court of the ……………………………………….Judge/Magistrate……………………….

Application No………………….. of 19

(In re: Case No……………………of 19

Remand Application of the …………………………………………………………….Police Station)State ( Or as the case may be)………………………………………………….Complainant.

Vs.

………………………………………………………………………………………………………………..Accused

I(Name of Surety )………………………………………………………………………Solemnly affirm

and state as follows:-

I beg to offer myself as a Surety for Accused No…………………………….(full name of the accused) …………………………. Who is charged under section …………………………. and who has been ordered to be released on bail in the sum of Rs. (in words)………….. ………………………………………………………..with the  ………………………………………………..

Surety / Sureties in the like amount, by the ………………………………………..Court (or by

Your Honour ) on  / 20    .

I give below certain particulars concerning myself :-

(A) Full name of the Surety :

Qualifications, if any :

Full residential Address :

period for which Surety has been residing at the above address

Rent paid for the residence . .

Whether the rent bill of the residence stands in the Surety’s name.

(B) Occupation or business . .

Full business address . .

Nature and extent of business,and Surety’s share therein :

Rent paid for the place of business . .

Whether the rent bill of the place of business stands in the Surety’s name .

Name and address of the employer, if the Surety is in service.

Full address of the place of service . .

Amount of monthly pay and allowances drawn :

Length of service with the employer . .

Amount of provident Fund, if any, at Surety’s credit.

(D) Full particulars of house-property owned, if any, its location,rateable value, and the Surety’s share or interest therein ; and whether it is in any way encumbered:

(E) Amount of income-tax paid during each of the last three years:

Banking accounts, if any . . Amounts now lying in each banking account :

(F) Length of time for which the Surety

has known the Accused personally :

Whether the Surety is related to the Accused; if so, how ?

Whether the Surety has stood surety

for any other person in the preceding

six months. If so, state the names

of the parties; the amount for which

the surety has stood for them : the

Court and the number of the cases

against those accused; and whether

the case or cases against those

persons are pending or have concluded :

Whether the Surety has, at any time,

had his surety bond forfeited. If so, give particulars:

Whether the Surety has, at any time,

made an application for suretyship

which was rejected; if so, give the particulars thereof :

Whether the Surety is, (or has been)

involved in any civil litigation:

Whether the Surety himself has been

concerned in any case as an accused

person: if so, give particulars of the case:

(G)Any other particulars in regard to the

status of the Surety, or his income

and assets, which the Surety may desire to give :

I produce the following proof in support of my statement, and give particulars

of the same as below:–

(Rent bills of place of residence)

(Ration Card)

(Rent bills of place of business)

(Deed of partnership or other documents relating to business)

(Certificate from the employer)

(Certificate of amount in the provident Fund )

(Title deeds of properties)

(Municipal bill of the properties )

(Bank pass books)

(Income-tax payment receipts)

(Other proof) :

As per Sub-rule 5A of Rule 14, I have furnished one of the document mentioned below:-

1) Passport.

2) Identity Card Issued by the Election Commission of India.

3) Permanent Account Number Card, i.e. PAN card issued by the Income-Tax Department .

4)ATM/Debit Card, or Credit Card issued by any Nationalised or Private Bank on Standing at the National Level, having photograph of the holder thereon.

5) Identity Card issued by the Government Authorities or the Public Statutory Corporations.

6) Any such document, which is ordinarily issued by an Authority after due verification of the identity of the person and his address, which the Judge or the Magistrate may think just and proper, in the interest of justice, by recording specific reason.

I pray that I may be accepted as a Surety for the abovementioned Accused in the sum of Rs……………………………..(in words)

I hereby declare that I have not stood surety in any other pending case or cases.

Solemnly affirmed at this day day of 19 ( Signature of Surety)

( Identified by …………………………………………………. Advocate)

Before me,

Judge /Magistrate, Court

Attention of the Magistrates is drawn to the High Court Circular No. E-4110/ 54,dated the 21st September 1955, which is reproduced verbatim below:

“Their Lordship are pleased to direct that all Criminal Courts should keep

a list of sureties in the proceeding that come up before them. A copy of this list,

alphabetically arranged,should be sent every month to the Sessions Court. From

these lists received from the subordinate Courts, the Sessions Court should prepare

a consolidated alphabetical list of sureties after adding to it the names of sureties

in the proceedings before itself. Additions will continue to be made to this list

every month as names will be received from the Subordinate Courts. This list

may be called list “A” for reference. Immediately a person is found to have

been surety for two different accused persons in two different matters in this list,

there would be a case for bringing his name on another consolidated list, which

may be called list “B” for reference,kept for the whole District so that his activi-

ties will be watched. Unless his name is brought on such a list and each Court

has got a copy of the list (List B), one Court would not know what the surety is

doing in other Courts and it would be a long time before the Courts come to know

that any person is, as a matter of fact,working as a professional surety . Each

Court should also be informed every month of the additions, if any ,made to this

list. Officers in charge of the work of accepting sureties should refer to this list

(List B) before accepting a surety ,and they are advised to reject the bail of any

person who, they feel ,is standing surety for an accused person ,for consideration.”

Both the lists “A” and “B”,as aforesaid ,should be maintained in the following form:-

Date Name of Surety Criminal Case No.

Attention of the Magistrates is drawn to Section 446 read with section 421 of the Code of Criminal Procedure ,1973 ,which does not provide for sentence of imprisonment in Civil Jail for non-payment of the forfeited bond amount if the same cannot be recovered by attachement of property of the surety.

The following instructions are issued by Government regarding issue of solvency certificate for production in Criminal Courts :–

Revenue Officers not below the rank of Naib-Tahsildar (exercising powers of Tahsildar) are authorised to issue Certificate of Solvency to the parties for production in the Criminal Courts on payment of fees of Rs.. 2 per Certificate, for which purpose the following limits are prescribed for the Revenue Officers in exercising their powers in that behalf:–

(i) Naib Tahsildar (exercising powers of upto Rs.25,000 Tahsildars).

(ii) Tahsildars …. ….. ….. Above Rs.25,000 but not exceeding Rs.1,00,000

(iii) Sub-Divisional Officers … …… Above Rs.1,00,000 but not exceeding Rs. 5,00,000

(iv) Collectors …. …. …. Above Rs. 5,00,000

The said fees should be recovered in the shape of Court fee stamps.

Every application for a solvency certificate should be affixed with a Court fee stamp of 65 paise and accompanied by an affidavit showing reasons why the certificate is sought and by the following documents,which should be obtained by the parties at their costs from the officers concerned :-

(a) in the case of agricultural lands; Khata Utara and Extract from Records of Rights.

(b) in the case of non-agricultural lands and immoveable properties : A state-

ment regarding the details of the property and its estimated price.

In the case of agricultural lands, the Revenue Officers should issue the Solvency

Certificate on the basis ofkl the Panch valuation of the land and such other enquiry as the Revenue Officer concerned may wish to make.

Revenue Officers concerned should,on receipt of the application ,issue the Certificate after holding necessary inquiry as expeditiously as possible.

(2) The Adivasis are exempted from the payment of prescribed fee of Rs.2 for

the issue of Solvency Certificate required for production in Criminal Courts and

also from the stamp duty chargeable on affidavits executed by them for the purpose of obtaining Solvency Certificates.

The term ‘Adivasis’ means and includes all the members belonging to the Scheduled Tribes specified in Section II of the Schedule accompanying Government Resolution , Political and Services Department ,No. 490/46,dated the 1st November 1950 ,as amended from time to time.

Identification Parades It is not desirable that Judicial Officers should associate themselves with identification parades. All Civil Judges and Judicial Magistrates are,therefore, directed that they should not participate in identification parades which are conducted by the police for investigation purposes. In this connection,order in the Government Circular,Home Department ,No.MIS.1054/84588,dated the 22nd April 1955 ,is reproduced below for the information of the Civil Judges and Judicial Magistrates:–

“In the Judgment delivered by the Supreme Court in Ramkishan Versus Bombay State (A.I.R.1955 S.C.104), it has been held that statements made before police Officers by witnesses at the time of identification parades are statements to the Police,and as such are hit by section 162 of the Code of Criminal Procedure,1898. In view of that ruling,it is necessary that such parades are not conducted in the presence of Police Officers. The alternative is to take the help of the Magistrates or leave the matter in the hands of panch witnesses. There would be serious difficulties in panch witnesses conducting parades successfully. In regard to Magistrates ,it is not feasible to associate Judicial Magistrates with such parades. The only Practicable course,therefore, is to conduct the parades under Executive Magistrates and Honorary Magistrates (not doing judicial work). Government is accordingly pleased to direct that the Police Officers concerned should obtain the help of Executive Magistrates and Honorary Magistrates in holding identification parades.”

The Magistrates holding identification parades should follow all the guidelines

given below which are illustrative and may not be exhaustive .Exercise of the discre –

tion of the Officer concerned would be the sole criterion. The following principles

enumerated by Archbold in his treatise“Criminal pleading,Evidence and practice ”

would mutatis mutandis apply to the identification parades,with suitable variations

consistent with our law and decided cases.

(a) The object of an identification parade is to make sure that the ability of the

witness to recognise the suspect has been fairly and adequately tested.

(b) It should be fair and seem to be fair and every precaution must be taken to

exclude any suspicion of unfairness or risk of erroneous identification through the l

witnesses attention being directed specially to the suspected persons instead of

equally to all the persons to be paraded.

(c) The Officer concerned with the case against the suspect, if present, must not take part in conducting the parade.

(d) The parade should be arranged by an officer who is not police officer.

(e) After the commencement of the identification parade, every thing in respect of it should take place in the presence and hearing of the suspect ,including any instruction to the witnesses attending it as to the procedure that is to be adopted.

(f) All unauthorised persons should be strictly excluded from the place of identification parade.

(g) The Witnesses should be prevented from seeing the suspect before he is

paraded with other persons,and witnesses who have previously seen a photograph

or description of the suspect should not be led into identifying the suspect by

reason of their recollection of the photograph or description,as for instance by

being shown the photograph or description shortly before the parade.

(h) The suspect should be placed among persons (if practicable eight or more )

who are as far as possible of the same age,height,general appearance (including

standard of dress and grooming) and position in life. Two suspects of roughly of

similar appearance should be paraded with atleast twelve other persons. Where,

however, the two suspects are not similar in appearance or where there are more

than two suspects, separate parades should be held using different persons on each parade.

(i) All members of a group of suspects more than two should not be paraded

together. There should be more parades than one, each including not more than

two. Two suspects of obviously dissimilar appearance should not be included in

the same parade. Identification numbers should be concealed.

(j) The Suspect should be allowed to select his own position in the line and should

be expressly asked if he has any objection to the persons present with him or the

arrangements made. He should be informed that if he so desire ,he should have

his Advocate(or a friend) present at the identification parade.

(k) The witnesses should be introduced one by one and, on leaving ,should

not be allowed to communicate with witnesses waiting to see the persons paraded;

and the suspect should be informed that he is free to change his position after each witness has left.

The witness should be asked whether the person he has come to identify is on the parade . He should be told that if he cannot make a positive identification, it is open for him to say so.

(m) Generally,a witness should be asked to touch any person whom he

purports to identify ,but if the witness is nervous at the prospect of having to do

that (in cases where the witness is a woman or a child who has been victim of

a sexual or violent assault or other frightening experience) and if prefers not to

touch the person ,identification by pointing out should be permitted.

(n) If a witness indicates someone,but is unable to identify him positively,this

fact should be carefully noted by the officer conducting the parade and every other

circumstance ,(Such as whether the suspect or any other person is identified or not ),

connected with it should be noted.

(o) If any request is made by a witness, for example to see the suspect with his

hat on or his hat off or to see the person walk or to hear the person speak and

there being no objection to the person paraded as asked for,the incident should be recorded.

(p) Where a parade has to be held in prison,a prison officer should be present

throughout in-charge of the discipline of the prisoners who would take part.

Otherwise,the police officer unconnected with the case, ought to be responsible

for the parade. It must be ensured that the parade is conducted in the same way as a parade outside prison.

(3) In order that the proceedings of the Identification parades are recorded properly and in conformity with the judicial requirements, Government of Maharashtra , Home Department have issued Circular No. PRO -2460/16653-IX,dated the 16th August 1963 ,and laid down the following procedure which includes the writing up of a memorandum in the form given below.

Procedure for holding Identification parades

(i) An Executive Magistrate /Honorary Magistrate, if called upon for the purpose of holding an Identification parade, should remember that he is the person who conducts lthe parade ; he will be in full and sole charge of the entire proceedings.

(ii) The Executive Magistrate /Honoary Magistrate should first acquaint him self, very briefly,with the facts of the case and find out who is to be put in the parade for identification and who are the witnesses to be called up for identification.

(iii) Two independent respectable persons (not being persons connected with the police),should be first called up. The Police themselves will have normally arranged to call up such persons; but the Executive Magistrate ./Honorary Magistrate will question them and satisfy himself that they are independent and fairly intelligent persons. In order that they may follow the proceedings intelligently, the Executive Magistrate /Honorary Magistrate should acquaint them ,briefly, with the facts of the case and as to who is sought to be identified and who are to come for identification.

(iv) The parade should then be arranged in a room or place which is such that the identifying witnesses, as well as the persons connected with the police, should not be able to look into it.

(v) If there is only one accused person to be identified ,there should be at least half a dozen persons placed in the parade. If two accused persons are to be identified, then there should be about 10 or 12 persons in the parade . Not more than two accused should be placed in any single identification parade.Normally, the police themselves will have called up the persons to be put in the parade; but the Executive Magistrate/Honorary Magistrate should see that they are persons of more or less the same physical appearance, and approximately of the same age, as the person to be identified . It is desirable that innocent persons to be mixed should be different for each such parade.

(vi) No person,other than the persons in the parade, and the two respectable persons, should be allowed to remain in the room where the identification proceedings are being held. In particular, all police officers and constables should be asked to withdraw themselves complectly from the room. There is no objection to any of them remaining outside the room or otherwise at hand,ready to be’ be called up in case the accused creates trouble,or in case of emergency. They should ,however,not be visible from the room or the place where the parade is being held.

(vii) After the parade is arranged, one of the two respectable persons should be sent up to bring the accused from the lock-up . Care should be taken to see that when the accused is being brought from the lock-up, the identifying witnesses do not have an opportunity of seeing him. They shoud be kept in quite a different room, out of sight of the lock-up.

(viii) At this stage, the Executive Magistrate/Honorary Magistrate should commence to write the memorandum. It should include :–

(a) the place at which ,and the date on which ,the parade is being held and the time at which it was commenced;

(b) the names,ages,occupations and the full addresses of the two respectable persons;

(c ) the names and the approximate ages of the persons standing in the parade, mentioning clearly, one below the other ,in numerical order their positions in the parade (which positions they should not be allowed afterwards to alter );

(d) the fact that no persons ,other than those,in the parade and the two respectable persons,were allowed to remain in the room and that all police officers and constables were asked to withdraw; and

(e) that respectable person so and so fetched the accused from the lock-up, and that the identifying witnesses were in a different room, so that they could not see him being brought from the lock-up to the identification room.

When the accused is brought,the Executive Magistrate/Honorary Magistrate should ask him to take whatever place he likes in the parade. The place which he selects should be noted in the memorandum. For example ,he may elect to stand between numbers 3 and 4 in the parade;l and it should then be noted that he took his position between Nos. 3 and 4 in the parade. The original numbering of the persons in the parade should not be altered simply because the accused has now joined in.

The accused should then be asked if he wants to make any alteration in his dress. He may change his cap or coat, or he may decide to put on ( or remove) a cap or a coat. He should be allowed to do this, and that fact should be noted in the memorandum. If he does not wish to change his dress, then that fact, too ,should be noted in the memorandum.

Then one of the respectable persons should be asked to fetch the first identifying witness from the room in which he may be sitting . When the witenss arrives, the Executive Magistrate/Honorary Magistrate should question him and ascertain from him whether he had an opportunity to see the culprit at any time subsequent to the offence or after the arrest. He may either record the statement separately on make a reference to that statement in his memorandum. The witness should then be asked to view the parade carefully and see whether he would be able to identify the person, who ,for instance,stabbed him ,or whom he saw firing a shot from a revolver,or whom he saw inside the flat in which a burglary may have taken place ,or ,as the case may be . The identifying writness will then go up and look closely at the parade. If he identifies any person,he should be asked to go forward and touch that person, and not merely to point him out from a distance. This is necessary in order that there may be no doubt afterwards as to whom exactly he had identified. The fact that the identifying’ witness identified the accused,should be noted in the memorandum (along with the name of the accused) and, of course, also if he failed to identify him or identified a wrong person. It should further be noted whether the witness identified the accused straightway or after some hesitation or after first pointing out a wrong person and then correcting himself and pointing out the accused. When this is over, the identifying witness should be asked to go away into a different room and not to contact the remaining identifying witnesses. He may even be asked to go away.

After he leaves the room, the accused should be asked once again ,whether he desires to change his place in the parade. If he changes his place, it should be noted in the memorandum,and, also if he declines to do so. He should be asked, again, if he wants to change his dress; and dif he does so,or if he declines to do so, that fact should also be noted in the memorandum.

Then one of the respectable persons should be asked to fetch the second identifying witness. In regard to the identification by him also, the same procedure should be gone through as in the case of the first identifying witness, the memorandum being also written up side by side.

This procedure should be followed for each subsequent identifying witness.

After all the identifying witnesses have thus been exhausted one after the

other, the memorandum should be wound up by stating the time at which it was

concluded. Then the memorandum should be read over and explained to the

respectable persons in language which they understand. If the respectable persons

know English well,then they should be asked in addition, to read over the memorandum for themselves.

After the memorandum is completed, the Executive Magistrate/ Honorary Magistrate should make the following endorsement at the end :—

“Identification parade was conducted by me personally with the help of the two respectable witnesses,namely Shri…………………………………………………and Shri………………………………………………….whose signature have been obtained in token of what transpired in their presence”, and shall sign below this endorse ment and put the date below his signature. There shall be another endorsement to the following effect:—-

“We read above memorandum (or it was explained to us) and it depicts the correct state of affairs as stated in the memorandum ”, and he shall obtain the signature of the two respectable persons with whose help he held the identification parade.

The Executive Magistrate/Honorary Magistrate himself should also sign every sheet of the memorandum.

All corections and interlineations in the memorandum should be initialled by the Executive Magistrate/Honorary Magistrate.

The memorandum should then be handed over to the police officer concerned. Care should be taken to see that at no stage of the proceedings police officer or any police constable comes into the room in which the parade is being held.

The police should not be allowed to interfere with the proceedings, which are entirely to be conducted by the Executive Magistrate/Honorary Magistrate. It will be advisable to note in the memorandum itself that no police officer or constable was present at any time during the entire proceedings of the identification parade.

The most important part of the memorandum will be the statements made

by the identifying witnesses. These should be very carefully recorded, alongwith

the questions asked to the identifying witnesses. (This recording need not be in the

question and answer form). For example,an identifying witness may be asked if he is able to identify any one in the parade as the person who fired the shot, and the

identifying witness may point out the accused and may add that it was not the

accused who actually fired,but that the accused was standing by the side of the man

who had fired the shot. In that case, whatever the identifying witness states,should

be carefully noted, as far as possible in his words (translated into English).

If more than one accused are placed in parade, then in the memorandum

they should not be referred to as “Accused No.1” “Accused No.2” ,etc,but they should be referred to by their full names.

The memorandum should be written in the language of the Court.

At the hearing of the case, the Executive Magistrate/Honorary Magistrate who held the parade and wrote out the memorandum may be called upon to give evidence. In that case, he should state exactly what happened. He has a right to refresh his memory by referring to the memorandum which he had himself prepared.

For the guidance of the Executive Magistrate /Honorary Magistrate  a model form is attached herewith.

The Executive Magistrate/Honorary Magistate are requested to consult the District Magistrate of the district concerned on any matter of doubt or difficulty in regard to the holding of Identification parades.

MEMORANDUM

OF AN IDENTIFICATION PARADE HELD AT THE ………………………………………

POLICE STATION ON………………………………….THE……………………….19…………….

I,Shri………………………………………………………………………Sub-Divisional/Taluka/

Honorary Magistrate, was called upon to hold an Identification parade and this is

the memorandum of what took place at that parade.

I,the undersigned Sub-Divisional Taluka/Honorary Magistate,held the Identi-

fication parade in the presence of the two respectable persons whose names and other

particulars are given as under :—

1.(name)……………………………………………………….(age) about……………………. years

(Occupation)

(Full Address)

2.(name)………………………………………………………(age) about……………………….years

(Occupation)

(Full Address)

The parade was commenced at (time)

The following persons stood in the parade:–

(Name) (age) about

years.

(1)

(2)

(3)

(4)

(5)

(6)

No persons,other than those in the parade ,myself,the abovenamed two respectable persons,remained in the room. All Police officers and constables were asked to withdraw themselves completely from the room.

The Witnesses who had been called to identify the Accused were made to sit in a separate room where from the place where the Identification parade lwas held,was not visible to the witnesses :

Then I asked one of the two respectable persons above named,viz…………………to

fetch the Accused,(Name)………………………………………………………..from the lock-up.

Whilst being brought to the room, I took precaution to see that it was not possible

for the identifying witnesses to see the Accused when he was being taken from the

lock-up to the place of identfication and I also took precaution to see that the lock-up

was not visible from the room where the witnesses were made to sit.

The accused was then asked to take whatever place he liked in the parade. He

stood between numbers………………………..and ……………….. in the parade.

He was then asked if he wanted to make any alterations in his dress. (Here state

whatever alterations he made. If he made no alteration,state “The accused declined

to make any change in his dress”

Then I asked one of the respectable person:,viz…………………………………………………..

to fetch the identifying witnesses and accordingly he went to the room where the

witness was sitting and brought him to the place of identification . The name of this

witness is …………………………………………………………..

I asked that witness to view the parade carefully ,to see whether he could identify

the person (who had stabbed him or as the case may be).

The identifying witness went round and looked closely at the parade and identified

the Accused,who gave name as ………………………………………………., as the person

who had stabbed him (with a knife), on the (date)……………………………………..19

(or,who had held the witness ,hands whilst the Accused’s companion had stabbed

, the witness,or whatever else the identifying witness may have stated).

Or

(The identifying witness failed to identify any one in the parade ).

or

(The identifying witness pointed out a wrong person ,viz.number……………..in,

the parade).

The identifying witness was then asked to go away (or to sit in a different room,

and I took precaution to see that he left the place and did not go towards the room

where other witnesses were sitting and who were still to identify the Accused.

I then asked the Accused to change his place in the parade if he liked. The

Accused changed his place and now stood between numbers …….and ………in

the parade ,(or,the accused declined to change his place in the parade.).

The Accused was also asked if he wanted to make any alteration in his dress.

(Here state whether he made any alterations ,and if so,what. If he made no

alteration,state “The Accused declined to make any change in his dress”).

Thereafter, I asked one of the respectable persons ,viz…………………………….. to

fetch the second identifying witness ……………………….viz……………………………

from the room where he was seated. Accordingly ,he brought the witness ………

……………………………..

I asked this witness to view the parade carefully,etc. ( as in the case of the first

Witness ).

. (If further witnesses are called up, similar note should be made as regards the

Accused changing (or not changing ) his place in the parade,or making (or not making)

any alteration in his dress, and as regards calling up the further identifying witnesses,

and narrating as to what happened when they were called up).

I took precaution to see that no police officer or constable was present in the

identification room at any time during the whole of the proceedings and I also took

precaution to see that no police officer or constable was present at the place of

identification in order to eliminate the possiblity of suggesting to the witnesses by

any sign or gesture whatever as to where the Accused had stood.

After the parade was concluded, the police officer concerned was called in, and

the Accused was handed over to him for being removed to the lock-up.

The parade concluded at (time)……………………………………………………

The Identification parade was conducted by me personally with the help of the

two respectble witnesses,viz…………………………………………and…………………………….

……………………….whose signatures have been obtained in token of what took place

in their presence. The identification parade has been held in a correct manner

without any tutoring of witnesses or any suggestions to them.

(Signature)…………………………….

Sub-Divisional /Taluka/Honorary Magistrate ,

(Full designation in the case of Executive Magistrate ).

(Date)

We read the above memorandum (or it was explained to us) and it depicts the correct state of affairs as stated in the memorandum.

(1 (Name)……………………………………………………(Signature)……………………………..

(2 (Name)…………………………………………………….(Signature)……………………………..

(Date)

Confessions

Accused persons willing to make a confession should be taken for the purpose before a judicial magistrate and ,whenever possible ,before the magistrate who will not eventually try the case.

Any Metropolitan Magistrate or Judicial Magistrate may ,whether or not he has jurisdiction in the case,record any confession or statement made to him in the course of an investigation under the code of Criminal Procedure ,1973 or any other law for the time being in force ,or at any time afterwards before the commencement of the inquiry or trial ,as required by Section 164 of the Code of Criminal Procedure 1973.

The following instructions are issued for the guidance of the Magistrate recording confessions and statement under section 164 of the Code of Criminal Procedure 1973. They are not intended to fetter the discretion given by the law to Magistrates. The only object with which they are issued is to indicate generally the manner in which the discretion may be exercised.:—

(i) In the absence of exceptional reasons,confessions should ordinarily be recorded in open Court and during court hours.

(ii) The examination of the accused person immediately after the police bring him into Court, is deprecated. When the accused is produced before the magistrate, the police officers should be removed from the Court-room unless, in the opinion of the magistrate, the duty of ensuring their safe custody cannot safely be left to other attendants. In that case, only the minimum number of police officers necessary to secure the safe custody of the accused person should be allowed to remain in the court -room.

(iii) It should be impressed upon the accused that he is no longer in police custody.

(iv) The magistrate should then question the accused whether he has any com plaint to make of ill -treatment against the police or others responsible for his arrest or custody, and shall place on record the questions put and the answers given.

(v) If the prisoner makes an allegation of ill -treatment ,the Magistrate shall follow the same procedure as is laid down in paragraph 3(1) above.

(vi) If the accused does not complain of any ill-treatment or improper conduct or inducement on the part of the police, or if inspite of the alleged ill-treatment, misconduct or inducement, he adheres to his intention of making a confessional statement ,the Magistrate should give the accused a warning that he is not bound to make the confession and that ,if he does so,it will be taken down and may thereafter be used as evidence against him. A note of the warning given to the accused should be kept on record.

(vii) Thereafter ,the Magistrate should give the accused a reasonable time,which should ordinarily not be less than 24 hours, for reflection in circumstances in which he would be free from the influence of the police and any other person interested in having the confession recorded.

(viii) After the accused is produced before the Magistrate again ,it should be

ascertained from him whether he is willing to make a confession. If he expresses

his desire to confess ,all police Officers should be removed from the Court-room,

unless ,in the opinion of the Magistrate, the duty of ensuring his safe custody

cannot safely be entrusted to other attendants. In that case, only the minimum

number of police Officers necessary to secure the safe custody of the accused

person should be allowed to remain in the Court-room. In any case it is not

desirable that the police Officer making the investigation should be present.

The Magistrate should then question the accused person as to the length

of time during which he has been in the custody of the police . It is not sufficient

to note the date and hour recited in the police papers, at which the accused person

is said to have been formally arrested.

The provisions of sections 163 and 164 of the Code of Criminal Procedure , 1973 ,should be carefully attended to. The first clause of section 163,taken with section 24 of the Indian Evidence Act, provides that if a confession is caused by any inducement ,threat or promise ,offered or made ,or caused to be offered or made by any police Officer or person in authority in reference to the charge against the accused person, then ,if in the opinion of the Court, the inducement threat or promise was sufficient to give the accused person grounds ,which would appear to him reasonable ,for supposing that by making the confession he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him and unless in the opinion of the Court lthe impression caused by any such inducement , threat or promise ,has been fully removed ,such confession is irrelevant, that is ,it cannot be used as evidence in any criminal proceeding.

Under clause (2) of section 163 ,for a confession of an accused person made in the course of a police investigation to have any value ,it must be one which the accused person was disposed to make of his own free will. Before recording any such confession,the Magistrate is bound to question the accused person,and unless upon that questioning he has reason to believe that the confession is voluntary ,he cannot make the memorandum at the foot of the record . He cannot say “I believe that this confession was voluntarily made” unless he has questioned the accused person ,and from that questioning has formed the belief not a doubtfull attitude of mind, but a positive belief that the confession is a statement which the accused person was disposed to make of his own free will.

Before recording a confession,the Magistrate should question the accused with a view to ascertaining the exact circumstances in which his confession is being made and the connection of the police with it under clauses (iv), (vi),(x) and (xi) above. In particular, where more than one accused is involved in the case, he should question the accused whether he has been induced to make a confession by promises to make him an approver in the case. Anything in the nature of cross-examination of the accused is to be deprecated. It should ,however, be the endeavour of the Magistrate ,without having recourse to heckling or attempts to entrap the accused, to record the statement with as much detail as possible regarding the circumstances under which the confession was being made, the extent to which the police had anything to do with the accused prior to his offer to make a confession ,as well as the fullest possible particulars of the incidents

to which the confession relates. These details are important as they furnish the

material on which the value of the confession is to be estimated; and the greater

the detail,the greater the chances of a correct estimate . Every question and every

answer should be recorded in full.

The Magistrate should add to the certificate required by section 164

the Code of Criminal Procedure ,1973 a statement in his own hand,of the grounds

on which he believes that the confession is genuine ,the precautions which he

took to remove the accused from the influence of the police, and the time ,if any ,

given to the accused for reflection.

Attention of the Magistrates is drawn to Section 164(3) of the Code of Criminal Procedure ,1973 which lays down that if the person appearing before the Magistrate refused to make a confession ,the Magistrate shall not authorise the detention of such person in police custody.

Attention of the Magistrates is invited to sections 281 and 318 of the Code of Criminal Procedure ,1973, and to the following important observations made by the Supreme Court in the decision reported in A.I.R.1957 S.C.637 (Sarwan singh Rattan Singh versus State of Punjab) under the head (h):—

“(h) Duty of the Magistrate in recording statement under section 164(3) of the Code of Criminal procedure ,1898 (Corresponding Section 164(2) of the Code of Criminal Procedure ,1973).

The act of recording confessions under section 164 of the Code of Criminal Procedure is a very solemn act and in discharging his duties under the said section,the Magistrate must take care to see that the requirements of Sub- section (3) of Section 164 are fully satisfied. It would of course be necessary in every case to put the questions prescribed by the High Court………………………….

but the questions intended to be put under Sub-section (3) of section 164 should

not be allowed to become a matter of mere mechanical inquiry. No element

of casualness should be allowed to creep in and the Magistrate should be fully

satisfied that the confessional statement which the accused wants to make is in

fact and in substance voluntary . The whole object of putting questions to

an accused person who offers to confess is to obtain an assurance of the fact that

the confession is not caused by any inducement ,threat or promise having

reference to the charge against the accused person as mentioned in section 24 of

the Evidence Act ”.

Before actually recording the confession in the prescribed form ,the follow-

ing Government instructions issued in Government Circular, Home Department , No. PRO .-2360/12501-IX-(1), dated the 16th March 1963 ,should also be followed scrupulously:—

“(5) A duty is cast on the Magistrate to fully satisfy himself that no such inducement ,threat or promise is given to the accused person. For that purpose, when the accused is again produced bere the Magistrate after the time given for reflection is over, the Magistrate has again to ascertain from the accused whether he has any complaint to make of ill-treatment against the police or others responsible for his arrest or custody and then he has to caution him again that he is not bound to make confession and that if he does so it would be taken down and may thereafter be used as evidence against him. He must ,by putting questions, try to ascertain whether the accused has agreed to make the confession because he is under the impression that he would gain any advantage and whether such impression has been caused by an inducement ,threat or promise . Before recording any such confession,the Magistrate is bound to question the accused person, and unless upon such questioning he has reason to believe that confession is voluntary, he cannot make a memorandum at the foot of the record to effect:–

“ I believe that this confession was voluntarily made.” Thus, a great responsi-

bility is thrown on the Magistrate while recording confession and it is not

desirable that he should observe the formalities only given in the printed form

but he should observe the spirit and for that purpose he should not be a hurry in

starting to record the confession but he should put forward every endeavour to

satisfy by fully questioning the accused as to whether he is making the confession

voluntarily. With this object in view ,he should put as many as questions as

possible and those questions will be of the following type:—

(1) Why do you want to make a confession ?

(2) Have you any complaint to make of ill-treatment against the police or

others responsible for your arrest or custody ?

(3) Has anybody impressed upon you that by making a confession you

would be set free or you would be given lesser punishment ?

(4) Has the police or any person in authority offered you any inducement for

making this confession ?

(5) Has the police or any person in authority given you any threat in conse-

quence of which you intend to make this confession ?

(6) Has the police or any person in authority given you any promise as

a result of which you want to make the confession ?

(7) I had given you time for reflection and do you feel that now you have

fully reflected and now you are prepared to make confession not because

somebody has asked you to do so, but because you have chosen to do so

voluntarily and of your own free-will ?

(8) Do you realise that in law you are not bound to make a confession and

that if you do so, I shall take it down and the same will be used as evidence against you ?

(9) Do you realise that I am not a part and parcel of the police machinery and that I am a Magistrate to whom you can explain your difficulties and grievances freely before you finally make -up your mind to give the confession ?

(10) Do you want to open your heart and disclose to me your difficulties and grievances ,if any ?

(11) Do you realise that I am not here to force you to make confession but I am here to find out whether you want to make a confession of your own free will and voluntarily ?

“(6) Thus, after fully satisfying himself that the accused wants to make

a confession voluntarily without any inducement, threat or promise ,the Magi-

strate should proceed to record the confession. Such statement should be

recorded as provided in section 164 read with section 364 of the Code of Criminal

procedure (vide Appendix II hereof ) and the Magistrate should see that each

and every requirement of these sections is scrupulosly met with. As far as

possible ,such statement should be recorded in the language of the accused and if

that is not practicable ,then in the language of the Court or in English ; and such

record shall be shown or read out to the accused or ,if he does not understand

the language in which it is written ,shall be interpreted to him in the language

in which he understands ,and he shall be at liberty to explain or add to his

answers. Every question put to the accused and every answer given by him

shall be recorded in full. In order to obtain clarification, the Magistrate may

put him relevant questions but such questions shall not be in the nature of

cross-examination. When the record is complete ,it shall be signed by the

accused and the Magistrate who shall certify under his own hand that the exami-

nation was taken in his presence and hearing and that record contains a full and

true account of the statements made by the accused. At the foot of such state-

ment ,the Magistrate shall make a memorandum to the following effect:—

“ I have explained to …………………………………………………………………………that he is not bound to make a confession and that,if he does so, any confession he may make 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 con-

tains a full and true account of the statement made by him.”

(7) The Magistrates should bear in mind that failure on their part to take

immediate steps towards recording the confession of the accused on receipt of

a “Yadi ” from the Investigating Officer often damages the prosecution case

and ,as such ,the priority should always be given to the recording of confessions”.

(xvii) The confession should be recorded in the following form :—

FORM OF RECORDING CONFESSION

Before Shri…………………………………………………………………………………………………….

Magistrate of the First Class,Taluka…………………………District ……………………………

(1) The accused ……………………………………………………………………………s/o……………

age about……………..years……………………is brought by………………………………………..

Police Head Constable/Sub Inspector before me at my Court ……………………………..

at…………………a.m./p.m to have his confession recorded ,a letter/memo is given to

me dated………………………….from the ………………………………..which is attached

to the record.

…………………………..have ascertained that the offence was committed at (place)

………………………………….on ……………………………………………………………….(day)

at……………………a.m./p.m.

The accused is placed in custody of my peon/Armed police Constable …………..

…………………………………….and the police (sub) Inspector /Head Constable is

directed to leave the premises. I have satisfied myself that there is no policeman

in the Court or in any place where the proceeding could be seen or heard except

such armed police,not concerned in the investigation of the crime, as are necessary to guard the accused.

N.B.—Every question and every answer should be recorded in full.

The signature or mark of the accused person must be affixed to the confession

The Magistrate must make the declaration at the foot of the record of the confession

required by section 164(3) of the Code of Criminal Procedure ,1973 and clause

above.

The accused is informed that he is no longer in police custody ,and is asked

whether he has to make any complaint of ill-treatment ,against the police or others

responsible for his arrest or custody. He replies:—

PART I

Question No. 1 – I am a Magistrate and have no concern with the police. Have

you understood ?

Answer —

Question No. 2 – You are now no longer in police custody . Have you under-

stood ?

Answer —-

Question No. 3 — Have you any complaint of ill-treatment against the police or

other persons responsible for your arrest or custody ?

Answer —-

Question No. 4 — I desire to examine your person. Do you consent to it ?

Answer —-

The result of the examination is this ,namely:—

Question No. 5 — Do you wish to make any statement ?

Answer ——

Question No. 6 — You are not bound to make a statement or there is no compul-

sion that you should make a statement . Have you under-

stood ?

Answer —-

Question No. 7. — If you make a statement then it will be taken down and it may

be used against you as evidence . Have you understood this ?

Answer —–

Question No. 8. –Hereafter you will not be kept in the custody of the police .

Have you understood ?

Answer —–

Question No. 9. — Have the police or any other person threatened you to make

a statement ?

Answer ——

Question No. 10. — Have the police or any other person promised you that lesser

punishment will be awarded to you if you make a statement

or that you will be acquitted ?

Answer ——-

Question No. 11.— Have the police or any other person given you any allure-

ment to make statement ?

Answer ——

(In case there are other co-accused ).

Question No. 12. — Have the police or any other person given you promise that

if you make a statement then you will be made witness for

the prosecution in the case ?

Answer ——

Question No. 13.— Do you still desire to make a statement ?

Answer ——-

Question No. 14. — When did it first occur to you that you should make a confess —

ion and why did it occur to you ?

Answer —–

Question No. 15. —- Why are you making a confession ?

Answer —-

Question No .16 — Before you make any statement you are given 24 hours time

for reflection . You are kept in Magisterial custody and

you will not be kept in police custody. Have you understood all this ?

Answer ——-

The accused is informed that he jis given 24 hours time for reflection .

He is further informed that he is kept in Magisterial custody and

not in police custody, and is accordingly remanded to Magisterial

custody. He shall again be produced before me on ………………… at

a.m./p.m.

(Signature ),………………….

Magistrate .

Dated

——————

PART II

The accused is brought before me again on …………………………….at……………………..

a.m./p.m in custody of ……………………….

I have satisfied myself that there is no policeman in the Court or in any place

whence the proceedings could be heard or seen,except such armed police,not con –

cerned in the investigation ,as are necessary to guard the accused .

The accused is asked details as to the length of time during which and the place

where he has been in custody or surveillance of the police . He replies as follows:-

Question No. 1. — When were you arrested by the police ?

Answer ——

Question No. 2 – At what place the police arrested you ?

Answer —–

Question No. 3 – Were you kept by the police under surveillance ? If yes ,since

when and where ?

Answer ——

Question No. 4 – Since when you are in the custody of the police ?

Answer ——

Question No. 5 — At what places you were kept by the police ?

Answer ——

Under clauses (iv),(vi),(x) and (xi) of paragraph 18 of Chapter I of the Criminal

Manual ,the accused is examined as follows in order to ascertain whether ,he

is disposed to make a confession of his own free will :–

Question No. 6. — Do you wish to make a statement ?

Answer —–

Question No. 7.– You were given 24 hours time for reflection . Was it sufficient ?

Answer —-

Question No. 8 – You are not bound to make a statement and there is no com-

pulsion that you should make a statement . Have you

understood this ?

Answer —–

Question No. 9. — If you make a statement then it will be recorded and the same

is likely to be used as evidence against you. Have you

understood ?

Answer —-

Question No. 10.– Even if you refuse to make a statement you will not be kept in

police custody. Have you understood this ?

Answer —-

Question No. 11.– Have the police or any other person threatened you to make

a statement ?

Answer —–

Question No. 12.– Have the police or any other person promised you that lesser

punishment will be awarded to you or you will be acquitted

if you make a statement ?

Answer —-

Question No. 13 — Have the police or any other person promised you that if

you make a statement you will be made a witness for the

prosecution ?

Answer —–

Question No. 14 — Have the police or any other person given you any allurement

to make a statement ?

Answer —-

Question No. 15.– Are you now willing to make a statement voluntarily and of

your own free-will ?

Answer —-

Question No. 16 – You can tell me your complaints or difficulties ,if any ,Have

you understood ?

Answer —–

Question No. 17.– I am not here to record your statement by compulsion. I am

here to record your statement if you are willing to make it voluntarily and of your own free-will. Have you understood this ?

Answer —–

After satisfaction that the accused is making the statement voluntarily and of his own free will, I have recorded it as follows :–

DO NOT ADMINISTER OATH.

Certificate I–(In the handwriting of the Magistrate )

“Certified that the above confession was recorded in my presence and hearing and

the record contains a full and true account of the statement made by the accused ”.

(Signature )………………….

Magistrate

Dated:

Certificate II :—

“I have explained to …………….(Name) that he is not bound to make

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.”

(Signature )………………….

Magistrate

Dated:

Certificate III– ( In the handwriting of the Magistrate ).

“I certify that on the following grounds ,I believe that the confession is genuine ;

(i)

(ii)

(iii)

I had taken the following precautions to remove the accused from the influence of

police :-

(i)

(ii)

(iii)

I had given the accused ………… hours time for reflection before recording

the confession.”

(Signature )……………………..

Magistrate

Dated:

The accused after his confession has been recorded by me, is remanded to Judicial Custody and forwarded to the Sub-Jail.

(Signature )………………..

Magistrate

Dated :

(The above form does not fetter the discretion of the Magistrate to ask such other

questions as are considered necessary in a particular case, but incriminating questions

should never be asked) After a prisoner has made a confession ,he should ordinarily be committed to jail ,and the Magistrate should note on the warrant for the information of the Superintendent of the Jail concerned, that the prisoner has made a confession.

It is not feasible absolutely to prohibit the return of a prisoner to police custody after he has made a confession. An absolute prohibition of remands to police custody in such cases is impracticable ,since the prisoner may be required to identify persons or property ,to assist at the discovery of property or, generally to be present while his statement is being verified. But it is desirable that discretion should be used in the exercise of the power to remand,and the following principles are accordingly laid down for the guidance of the Magistrate :—

(a) A remand to police custody should not be made unless the officer making the application is able to show good and satisfactory grounds for it ; a general statement that the accused may be able to give further information should not be accepted as being in itself a sufficient reason for remand.

(b) If the object of the remand is the verification of the prisoner’s statement , he should ordinarily be remanded to Magistrerial custody.

(c) The period of the remand should always be as short as possible .

(d) A prisoner who has been produced for the purpose of making a confession

and has made a statement ,which from the point of view of the prosecution ,is

unsatisfactory ,should in no circumstances be remanded to police custody.

The police may be permitted to take copies of confessions recorded by Magistrates.

Any instance of misconduct or abuse of authority by a police Officer ,which may come to the notice of a Mgistrate ,shall be reported to the Sessions Judge to whom the Magistrate is subordinate . The Sessions Judge, on receipt of such a report ,should bring the matter to the notice of the District Magistrate for such action as he may deem fit. In cases of gross misconduct ,if the Sessions Judge finds that appropriate action has not been taken against the Officer concerned, he may bring the matter to the notice of the High Court.

The following orders issued by Government are reproduced for the information of the Magistrates:—

(1) Warrants issued by Criminal Courts against Railway servants should be

entrusted for execution to a police Officer of superior grade,who shall ,if he finds,

on proceeding to execute the warrant ,that the immediate arrest of the Railway

servant would occasion risk or inconvenience ,make all arrangements necessary to

prevent escape, and apply to the proper quarter to have the accused relieved ,

deferring his arrest until he is relieved.

(Vide Government of India Order, No. 3205,dated nil,issued under Resolution , No.3987-88,dated the 2nd July 1877).

(2) When an arrest is made under Section 132 of the Indian Railways Act,

1890 (IX of 1890), of a person who there is reason to believe will abscond, or whose

name and address are unknown and he refuses to give them, or ,when given ,are

reasonably believed to be incorrect, the case should be sent to the Magistrate, in

accordance with the provisions of Section 170 of the Code of Criminal Procedure,

as cognizable case within the definition in Section 2(c) of Criminal Procedure Code,

although the offence alleged against the accused be not itself cognizable.

(vide Government of Bombay ,Judicial Department ,Notification, No. 877,

dated the 14th Feburary 1890,published in Bombay Government Gazette, Part I,

dated the 20th Feburary 1890, at page 145).

Summaries of Final Orders

24- All the Courts of Session and the Magistrates are directed to specifically note for guidance ,the following instructions for issue of summaries of final orders. In all cases disposed of by them, they should comply with these instructions without prejudice to their statutory powers and judicial discretion :—-

(1) Each Magistrate shall,immediately after disposing of a cognizable case ,

forward through the police Station from which the case came, to the Superintendent

or Sub-Divisional Police Officer concerned ,a summary of a final order in Form E.

It should be sent in all cases,whether disposed of by trial or otherwise brought to an end by the death,lunacy or escape of the accused or in any other way what soever. When a case has been tried by a Magistrate, he will issue the summary.

In cases tried by the Court of Session, the Magistrate concerned will forward the required summary after the disposal of the case by that Court or by the High Court. When the order of decision of the Magistrate is modified on appeal or revision ,the Magistrate who sent the original summary will sent again a fresh summary of such modified order or decision in Form F.

(2) If an accused in a case dies after a charge sheet has been sent up against him but before any evidence is recorded by the Magistrate ,the Magistrate should issue ‘A’ summary .

(3) In cases not sent up for trial but disposed of on final reports by the Magistrates, a Magistrate who is empowered to take cognizance of the offence on a police report should issue the summaries.

(4) In cases in which investigation has been refused by the police under section

157 (1) (b) of the Code of Criminal Procedure ,1973 ,the Magistrate should enter

a remark or give a reply to the question No. 4 of the summary in Form ‘E’(given

below) to the effect that the case is “not investigated by the police acting under

Section 157(1) (b) of the Code of Criminal Procedure with Magistrate ’s approval .”

The Magistrate should also include in his summary the value of property alleged

to have been stolen in such cases. In cases wherein the investigation was refused

on the ground that the complaint was of a civil nature ,it is not necessary to include

the value of property in his summary.

(5) The Criminal cases should be classified as follows :—

Class ‘A’ cases—The cases which are (i) ‘TRUE’ and (ii) wherein an accused is

tried and in the absence of conclusive evidence ,is acquitted.

Class ‘B’ cases—Wherein no offence has been committed at all either by the accused or by any one else, but wherein the complaint is found to be “false and maliciously false.”

Class ‘C’cases—- Wherein no offence has been committed at all either by the accused or by any one else, but wherein the case is found to be “neither true nor false”or “false but not maliciously false .”

“Non—Cognizable ”cases—The cases, in which the accused are convicted for non-cognizable offences, should be classed as “Non-cognizable ”. The cases , in which the police report discloses commission of only non-cognizable offences, should also be classed as “Non-cognizable ”.

(6) In cases wherein offences have been compounded, it is not proper to characterise the complaints as compounded , In such cases, the Magistrates should enter remark against question No. 3 of the Summary in Form E to the effect that the offence complained of has been compounded. Similarly, in cases wherein the accused is reported to be dead, or suffering from lunacy or absconding , the Magistrates should enter a remark to that effect against question No. 3 of the Summary in Form E.

(7) In cases referred to the police for enquiry and report under Sections 156 & and 202 of the Code of Criminal Procedure ,1973 ,the Magistrates should send summaries of their final orders in the prescribed forms direct to the police Stations concerned for their record.

(8) In cases in which the offences complained of are punishable (i) under Sections 161, 165 ar 165-A of Indian Penal Code or under Sub-section (2) of Section 5 of the Prevention of Corrupiton Act, 1947 ; (ii) or any conspiracy to commit or any attempt to commit or any abetment of any of the offences specified in clause (i), and (iii) any other offence connected with any of the offences specified in (i) and (ii) ,the Special Judges appointed under Section 6 of the Criminal Law Amendment Act,1952 for trial of such offences,should send their Summaries of their final orders to the police Station Officers or the Officers of the Anti- Corruption Bureau , who conducted the investigation and sent in their reports to him.

(9) The attention of the Magistrates is drawn to the decision of the Supreme

Court reported in (1970) 3- S.C.R. 716 (R.N. Chatterji Vs Havildar Kuer Singh),

wherein it is held that the provisions of the Code of Criminal Procedure ,1973

do not empower the Magistrates to ask the police to submit a chargesheet. If,

however ,the Magistrate is of opinion that the report submitted by the police

requires further investigation, the Magistrate may order investigation under Section 156(3) of the Code of Criminal Procedure ,1973 . Directing a further investigation is entirely different from asking the police to submit a chargesheet. Further more, Section 190(1) (c) of the Code of Criminal Procedure ,1973 ,empowers the Magistrate to take cognizance of an offence notwithstanding a contrary opinion of the Police.


FORM ‘E’

APPENDIX ‘E’

(Counter-foil of Form ‘E’ not typed as it is in Marathi)

Summary of Magistrate’s Final Order


Police Station Number of case Complaint’s Magistrate’s Serial No of

as entered in sub- Name Case No. Summary

Inspector’s

Register.


1. Is the case cognizable or noncognizable ? If non-cognizable ,the remaining portion of the Form need not be filled up.

2. Section of Penal Code or other enactment covering the case.

3. To which of the following three classes does the complaint be-

long ? Viz. (a) true; (b) maliciously false ; © not true and

not maliciously false.

4. was the case investigated by the police or taken up and disposed of by the Magistrate direct.


Police Station Number of case Complaint ’s Magistrate ’s Seril No. of

as entered in Sub- Name Case No. summary

Inspector’s

Register .


5. Number of Accused :–

(a) Arrested by the police (District or Village); suo-motu.

(b) Arrested otherwise than by

the police (District or Village) ; suo-motu .

(c) Appearing before Magistrate

in answer to Summons.

6. Disposal of Accused and section

of the Code of Criminal Proce-

dure, 1973 under which dis-

posed of :–

(a) of those arrested by Convicted.

Police suo-motu. Acquitted

and Discharged .

(b) Of those arrested Convicted .

Otherwise. Acquitted and Discharged.

(c) Died, escaped, transferred or

treated as lunatics.

7. Value of Property stolen …

Value of Property recovered ….

Camp

Dated: 19 Magistrate, Class,


Forwarded to the Superintendent of police, through Sub-Inspector ,Police Station .

NOTE ——If the accused is classified as a ‘Habitual Criminal ’in accordance with Government Resolution No. 3, dated January 3,1887 ,this should be noted in column 6 by entering the letter ‘H’ against the accused concerned.”

APPENDIX F

Summary of Amendment of Final Order on Appeal or Revision


Police Station Serial No.of Original Serial No. of Summary

Summary of Amendment


1. Section of Penal Code or other enactment covering the case.

2. Disposal of Accused and Section of the Criminal Procedure Code under which disposed of—–

(A) Of those arres- Convicted …. ted by the police Acquitted and Suo Motu discharged :

(B) Of those arres- Convicted … ted otherwise Acquitted or discharged

(c) Of those appear – Convicted …. ing on Sum- Acquitted or mons discharged.


Camp

Dated 19 Magistrate ……………………….Class.

Forwarded to the Superintendent of Police through the Sub-Inspector, ……………

Police Station.


Categories: CIVIL