Atul Depak

Let’s talk about Qanoon (law), Huqooq (rights) & Insaaf (justice) for Empowerment & Falah (welfare)

CRPC 1973 Notes

CRPC 1973 provides the legal mechanism to enforce the substantive law. CrPC is the only way to implement the criminal law in a balanced manner. The balance here is about balancing the contradicting aim of criminal law- convicting the accused and acquitting the innocent. Besides there are other things as well that need balancing-
1. Individual and society
2. Formal and informal- formal concerns with the written rules and procedures but they cannot work without some discretion of the actor enforcing those rules and procedures. Every decision is characterized by some amount of discretion.
3. Ends and means- even proof beyond reasonable doubt may not be the absolute truth.
4. Balancing between rights of accused and victim to the greater interest of Justice.
Objectives of the CrPC 1973
1. Fair trial and the concepts of natural Justice
2. Minimum Delay- justice delayed is justice denied
3. Simple procedures so as to ensure the outreach of justice to the poorest section of society
It replaces the old doctrine of procedure established by law with Due process of law. In accordance with the Human rights provision and the UN treaties to which India is a signatory. Overall it is based on the principles of fairness, just, equitable, impartial, objective and dispassionate.

Pre-trial stage- receiving information about crime, arrest, interrogation, remand , judicial custody/police custody, bail, investigation, recording of evidence and filing of the charge sheet.
Post trial stage- taking cognizance, framing of charges, summoning witnesses , corroborating evidence and witnesses, hearing arguments, passing of judgements and sentencing.

The main functionaries of the criminal justice system are-
1. Police- executive authority for investigation of the case
2. Prosecutor- prosecutes the accused on behalf of state. Here prosecutes has a broad connotation which means initiate the legal proceedings against the accused and find the truth. It is immaterial if leads to conviction or not. That is what they are supposed to do, though it is not generally practiced because acquittal is seen as failure of the prosecution.
3. Court- which is the independent and impartial arbiter between the accused and the state.


Steps of the Criminal Justice process- There are 5 steps-
1. Crime Detection step- from reporting of crime, proactive and reactive strategies of police, to investigation and arrest if required, then search and seizures and recording of evidence, though search and seizure may preclude arrest in some cases, filing of charge-sheet before the concerned magistrate.
2. Criminal Prosecution step- police transfers the material to the prosecutor who decides the crime and the charges to be levied- then commences the adjudication in court of law that includes the following step-
1. The first appearance in which decides on the bail aspects
2. Preliminary hearing that decides if there exists probability to try the case
3. Arraignment where prosecutors has provided all the arguments and evidences and expects the accused to respond or his plea.
4. Challenge if any to the prosecution evidence, argument by the defense side and the jurisdiction of the court
5. Trial with or without a jury
3. Sentencing step- court after considering all the facts and circumstance on the basis of evidences and arguments made by each side reaches a conclusion and gives the judgement
4. Appeal steps- accused may appeal the decree of the court in a higher court of law
5. Punishment steps- everything here is the work of correctional authorities.


The two model of criminal process are-
1. The Due Process model (DPM)-
2. Crime Control Model (CCM)- 

There are some common grounds between them like the ex-post facto facto principle. That no criminal provision shall be applied retrospectively, they will have prospective application. Secondly, that there is a limit to the power of government to investigate, they have to keep in mind certain fundamental rights of the accused and no actions shall be taken that are arbitrary. That security and privacy of individual must not be invaded at will and whims and caprice of the officer or state actors. Thirdly that the accused will be given the opportunity of being heard. That adjudicating authority shall be an independent authority that shall work impartially and objectively.

Due Process Model-
• Insist on the elimination of the human error in the adjudication of crime
• It rejects the informal investigative feature of the CCM because of the possibility of Human errors. It considers that people are poor observers of fact because of the inherent prejudices and lack of objectivity.
• If CCM is like an assembly line, DPM is like an obstacle course.
• Presumption of innocence of accused unless his/her is proved beyond reasonable doubt
• It’s like a quality control mechanism in an industry where the focus is on removal of defects of the product. More defects is seen as not the fault of the product but the manufacturing process. Similarly more number of crime is seen as the failure of state in nurturing good citizens so the focus is more on the reformation of the accused.
• Each individual is seen as a valuable of the state. Eliminating him will less productive to the state while reforming and putting him back into the society will enhance the productivity of state and its resources.
• State tries its best to ensure that the fundamental rights and liberties of the individual
• The criminal process is highly formal.
• The gravity of the process lies not at the investigative stage but in the court of law based on constitutional principles and concept of natural justice where each party given the opportunity to be heard and contest the allegations.
• Focus on legal guilt and not just the factual guilt of the individual.


Crime Control Model-
• That repression of crime is the foremost duty of the state which should be ensured at all cost even by infringing the rights of the individual.
• Crime suppression is necessary to ensure the prevalence of Human freedom in society
• Efficiency in repression of crime- that agencies should be swift in dealing with the acts of crime and the crime should be disposed of in the shortest time possible by punishing or eliminating the criminals by whatever method.
• High apprehension and conviction rate. Low rate of conviction is seen as failure of the state agencies in dealing efficiently with crime.
• Speed and Finality-
• Focus on informal investigation- those guilty of crime may be punished regardless of rules
• Administrative and managerial model
• Image is that of an ‘Assembly line conveyor belt’- that continuously moves an endless stream of cases with workers present at each point perform their role on the product helping to reach its finality.
• Presumption of guilt of the suspect or accused in most of the cases- each step of the criminal process is like the screening process that keeps scrutinizing the accused vigorously to find the guilt. Those who are innocent are screened out.
• The gravity of process lie at the investigating stage where most of the work is done.


Some other models-
1. Medical model- focuses on rehabilitation of criminals and relaxation of rules
2. Bureaucratic model- management of crime and criminals. Independent from political considerations, speed and efficiency, importance of records, minimization of conflict and expense
3. Status passage Model- denunciation and degradation of criminal conduct, public shaming of criminals, court values reflect the community values, agent’s control over process of criminal law.
4. Power Model- maintenance of class domination eg- ancient Hindu system of caste domination.
5. Punitive
6. Non-punitive
7. Victim participative model- though her interest is represented by the prosecution but still she remains unrepresented. Victim was defined for the first time in Cr.PC in 2008
8. Victim satisfaction model
9. Fairness model
10. Procedural justice model


HISTORY OF CRPC
Provides general procedure only. If specific law provide separate procedure, that will prevail over CrPC.  When britishers came, Hindus and muslims had their own criminal law governed by the priestly class. Hindu criminal law was discriminatory as well as it was based on the caste system.
For the first 80 years britishers didn’t interfered in the legal system. Even British officers of high posts were removed or transferred if they tried to interfere in the local laws. Eg- the governor of Bombay was recalled in 1731 after he tried to intervene in the local laws and implement the english laws.

CrPC is part of the formal justice system. In informal justice system like panchayats there is no hierarchy of court and the laws are not codified. If no hierarchy then no appeal system. If no appeal there is no chance to correct the errors of lower court in justice dispensation. There is also lack of uniformity and continuity. And if not that then there is no credibility as well. If no credibility then no integrity and if no integrity then there is no faith in that legal system.

SYSTEMS of Criminal Procedure-
1. Adversarial
2. Inquisitorial

MODELS of Criminal Procedure-
1. Criminal Control Model
2. Due Process Model


ELEMENTS OF CIVIL LAW SYSTEM IN OUR LAW-
1. Adjudication in lower court by career judges like in civil law nations
2. S.176 magistrate can himself look into the cause of death
3. Under 173, power of magistrate to direct further investigation
4. Under 282 of CrPc, the interpreter is bound to interpret truthfully
5. Under 466, minor defect or error will not make attachment unlawful
6. In Hadya case, SC appointed a retd. Judge to supervise the investigation conducted by NIA.
7. In Sakri Masu v UP, Justice Katju said that a trial judge can monitor the judgement as well
8. Judge can intervene in case of violation of fundamental and constitutional rights of the accused
9. Under S.311, 319 of Cr.PC read with 165 of evidence act, the judge can step in and can control the proceedings
10. In Arnesh Kumar, court said that if the punishment for the offense is less than 7 years, the accused should not be arrested straightaway. Magistrate is to look after the legality of arrest


CONSTITUTIONAL FOUNDATION OF CRPC
CRPC 1973 is different from CRPC 1898 because it is has constitutional foundation and is in harmony with Human Rights and other International Conventions. It balances the state’s duty of Crime prevention and individual’s rights and autonomy in any criminal proceedings. It reflects the values of Due Process model of Herbert backer.
Following the law equality, it also follows the rule of intelligible differentia in cases of accused who are women, children, infirm or elderly. A child is not to be put in jail but Juvenile homes. Similarly under normal circumstances a women is not to be touched and arrested by a male police officer but female and she is not to be arrested after dusk.

In Subramanian Swami case it was held that there should be same investigating agency for same offense for all.
In Bhim Singh case made bail must for prisoners who have already served half of their prison sentence.

Besides this there are other constitutional features in CrPC like-
Right to free legal aid- police must inform the accused of his right of free legal aid and lawyer. Same was reiterated in the Shell Barca case.
Right of under trial prisoners
Rights against arbitrary arrest
Right of women prisoners
Right to Privacy
Right against self incrimination

Article 20 and 22 of Indian Constitution directly deals with prisoners and talks about-
Ex-post facto laws
Double Jeopardy etc
Right to be informed of reasons of arrest
Right to consult lawyer
Right to be defended by a lawyer
He has to be produced before magistrate within 24 hours of his arrest excluding the travel time.

Article 21 says that no one should be deprived of his right to life and personal liberty without procedure established by law.

Since Article 13 of constitution says that no law should be contrary to the fundamental rights, CrPC which is a law is in consonance with all the fundamental rights guaranteed by our constitution.

THEORIES OF CRIMINAL PROCEDURE

Discretion- is needed because in no two cases, facts are exactly similar.
Jerome Hall said-
Cr.PC laws are reflection of society’s response in the area of its greatest stress
It is also the reflection of the Human Rights of the society

Methodology of approaching Cr.PC-
Textual
Case based
Contextual

Finding Truth is the objective of Evidence laws. One cannot ascertain 100% truth and justice in any system.

OBJECTIVES OF CRPC
Principle of balancing- social security vis-a-vis individual autonomy, power of functionaries versus rights of the accused
Principle of rationalizing power of functionaries- by division of power and role between executive, prosecution and adjudication
Principle of Procedural regularity- process should be fair, just, equitable, impartial, objectiveness, dispassionate etc
Objective basis for exercise of power- e.g. in S.100(3) which speaks about searches when and how made. S.41 which mentions when and how police can arrest a person
Freedom of choice- between-
Freedom from crime v state intrusion
Society v individual
Rules v discretion
Ends v means

KEY CONCEPTS OF CRPC-
S.2 speaks about the definitions-

S.39- There is a legal duty on us to report a crime. Not reporting is punishable under 176 and 202 of IPC.

Categorization of offenses-

In IPC-
against body
Against property
Against state
Against marriage

In CRPC-
Cognizable and non-cognizable
Bailable and non-bailable
Compoundable and non-compoundable
Summons case and warrant case.

COGNIZABLE AND NON-COGNIZABLE
S.155(3)- In all non-cognizable offenses police has no right to investigate without the permission of magistrate
Exceptions-
In marital offenses, though punishment may be more than 3 years, they are still non-cognizable because of being private in nature.
Offenses against public tranquility- eg S.497 which is spoiling public water body, etc. punishment may be less than 3 years but still cognizable because they require immediate action.
Child marriage restraint act- S.7 says that all offenses shall be non-cognizable for the purpose of investigation and cognizable for the purpose of arrest.
S.42- (refusal to give name and address) though non-cognizable but police can arrest without warrant.
Where offense is made cognizable at the stance of victim eg S.376B of IPC, 498A IPC

BAILABLE AND NON-BAILABLE
Are those offenses which have made bailable in the first schedule of Cr.PC

S.493 is non-cognizable and non-bailable both. (cohabitation caused by man deceitfully inducing a belief of lawful marriage)

COMPOUNDABLE AND NON-COMPOUNDABLE
S.320 of CrPC speaks about the compoundable offenses that can be compounded either by the-
Victim
Authorities

S.482 CrPC- HC to serve the ends of Justice can quash the trial or proceedings (Gyan Singh case)
S.321 CrPC- prosecution can withdraw the case with the consent of the court at any time before the judgement is pronounced. (SK Shukla v v UP; Rahul Aggarwal v Rakesh Jain)

SUMMON AND WARRANT CASES

Warrant cases are more serious in nature. Procedure is also detailed one. In warrant case, summon can also be issued. In summon case warrant can be issued only when one is not humoring the summons. (S.87)

COMPLAINT
For no cognizable offense police files complaint in place of report to the magistrate. Complaint can only be made to the officer empowered to take cognizance of the offense.
ZERO FIR- FIR can be registered anywhere. The FIR registered outside the jurisdiction of the place of commission of crime is called Zero FIR.
LOCUS- Lodger of the FIR need not necessarily be the victim.

FUNCTIONARIES OF COURT
Police, Prosecution, court, correctional authorities.

Police-
Derives its power from the Indian Police Act 1861 which reflects the legacy of colonial rule. Managerial aspect of police hierarchy rests upon the distrust of lower ranks. It accountability to public was never a priority. And value system in its working is highly suppressive in nature.
CBI is specialized police under DSPEA and so is NIA
S.154 to 173 deals with the powers of police.
First contact agency
Directly in touch with public
Under constant scrutiny
It orientation is influenced by the socio-political circumstances during the British rule ie the 1857 mutiny.
It comes under state subject under Article 246 of constitution, schedule 2 list 7.
State can control police

Functions-
maintenance of law and order
Crime control and crime preservation

HN Rishbud v Delhi bifurcated the whole process of investigation into following steps-
Proceeding to the spot of crime
Ascertainment of facts and circumstance of the case
Discovery and arrest of suspected offender
Recovery of evidence including-
Examination of witnesses and the accused
Search and seizure of places and things
5) Formation of opinion whether the accused has committed the crime and if yes file police report and preparation of charge sheet otherwise closure report under 173 CrPC.

HIERARCHY OF POLICE-
Commissionerate system in Cities – ACP (looks after 3-4 police stations), DCP
Superintendent of Police system in other places.

Constable (Blue strips) for every court there is one constable called Naib- Head Constable (red strip) also known as Diwan or investigating officer- ASI assistant sup-inspector (1 star, 1 red strip) who is investigating officer for offenses punishable unto three years- SI (2 star, 1 red strip) who is investigating officer for serious offenses- Inspector or SHO station house officer- SHO station head officer who files the final report or charge sheet.

Problems concerning police-
Political interference (from local level to MLA, MP and state level)
Police officers are promoted to serve the needs of the ruling party, to manipulate investigation, deal with opposition, and underworld business.
Low ratio of police to people- 130:1 lakh while in other countries it is 270:1 Lakh.
Suggestion of the police reports under National Police Commission established I 1976
Provision of complaint against police
Role of police should be service oriented
Inclusion of weaker section in the police
Registration of FIR in all cases
Reform in recruitment process and training. That they should not be under DM
Separation of investigative and maintenance of law and order function
Restructuring of the police hierarchy
Strengthening police accountability and repealing section 132, 197 of CrPC.
Various committees were also constituted for police reforms e.g.. Gore, National Police Commission, Padmana Bhaia, Soli Sorabji, Rebero committee etc
Prakash Singh Badal v UOI and Vineet Narayan v UOI stressed on making police more professional.

PUBLIC PROSECUTOR-
S.24, 25 of Cr.PC deals with public prosecutor who can be appointed by the central government after consulting the High Court. State and Central government can appoint separate public prosecutors in any local area or district after consulting sessions and district Judge of that area.
he is officer of court (Deepak Agrarwal v Kaushik)
Supposed to act independently and objectively
Expected to be fair and truthful (Aziz v Kerala)
To champion the cause of his client but fairly and truthfully (Aziz v Kerala)
Has two fold aims-
Guilty should not escape
Innocent should not be punished
6) should consider the view of all stakeholders ie victims, witnesses, state and the accused
7) should serve and protect public interest
8) Should not be concerned much about the outcome of the case
9) He can withdraw the case at anytime under 321 with the consent of court.
RK Anand v Delhi- dealt with a high profile accident case in which a scion of an influential businessman was involved. Prosecution was found to be in collusion with the defense to save the accused and this was discovered by way of a sting operation by a popular media channel. The court accepted the evidence of sting operation and punished the prosecutor for professional misconduct.

COURTS
SC- has appellate, SLP and writ jurisdiction
HC- Article 226, 227, writ jurisdiction greater than SC as it can entertain petitions concerning violation of constitutional rights as well
Sessions Court- Judges appointed as per Art 233 of constitution
Trial only takes place in lower judiciary (magistrate and sessions court)
In adversarial system the discovery of truth shall be contested between both parties.
In India Judges play active role during trial like-
they frame the charges on submission of charge sheet by police
Though prosecutor can apply for withdrawal of case but it depends upon the approval of judge
Only with courts permission the case can be compounded
Judge may continue the trial even if the accused pleads guilty
Judge is empowered to examine any witness even if he is not on witness list
Judge can examine the accused any number of time
Magistrate can order the police to investigate a non-cognizable case and to exercise same power of arrest as in a cognizable case
If police refuses to register the FIR, one can directly approach the magistrate
Can order further investigation
Can order for test identification parade
Oversees the remand, bail and committal proceedings and looks if the case is to be tried by a sessions court

PRE-TRIAL CRIMINAL PROCEEDONGS
Types of offenses
FIR and Complaint
Investigation of Crime
Arrest
Summons and Warrants
Search and Seizure
Collection of evidence
Interrogation of Witness
Police Report

FIR-FIRST INFORMATION REPORT
S.154 of CrPC deals with the FIR. Crime reporting has nothing to do with the rate of crimes. e.g. Bihar and Delhi.
Why police is reluctant in reporting crimes-
If more crimes are reported, it means relation between police and public is good
Reporting is the first point for access to Justice System
It prevents further crime
Provides opportunity for swift investigation
There is no limitation period for registering FIR, but for taking cognizance there is a limitation p[period
Reporting of cognizable crimes is different from reporting of non-cognizable offense

S.154 Cr.PC- Three essential features-
Every information
Indicating commission of a cognizable offense
If information is given orally, then it should be reduced to writing and read over to the informant and signed by the informant.
S.154 (3)- if police officer refuses to register the FIR, the person may write the substance of FIR to the superintendent of Police who if satisfied about the commission of a cognizable offense either can investigate the case himself or can direct the police to investigate.

LALITA KUMARI V UP- the “word” shall used in the section indicates that the police has necessarily record the information without any preliminary inquiry. Use of expression “Information” without any qualification like reasonable etc. denotes that police has to record any kind of information even if it appears to be unreasonable.
SHAMBHU DAS V ASSAM- FIR is not a substantive piece of evidence, it only use is to contradict or corroborate the matter thereof.
Ramesh kumari v Govt NCT Delhi- That under 154(1) the police officer is duty bound to register the FIR on the basis of information disclosing the happening of cognizable offense.
Prakash Singh Badal v State of Punjab- At the time of registration of FIR, the concerned officer cannot embark on any inquiry as to whether the information is genuine or not. He is statutorily obliged to register the case.
Bhajan Lal v State of Haryana-

Cryptic/telephonic information

CBI v Tapan Kumar- A FIR is not an encyclopedia disclosing all facts and details about the offense. He is also not necessary to be the eye-witness to the offense.
Tapinder Singh v. State of Punjab- An anonymous person though telephone informed place about a firing incident. Police recorded in in the daily diary and proceed to the crime scene, then to hospital, took dying declaration and treated it as FIR. Whether it was barred by 162 and inadmissible as evidence. Court said that dying declaration is barred from 162 due to S.32 of evidence act, therefore it can be accepted as an evidence.
Ramsinh Bavaji Jadeja v State of Gujarat- if the information received on telephone is cryptic and incomplete it cannot treated as FIR. The object of giving telephonic information is not to lodge FIR but to request the police officer to reach the place of occurrence.
Surajit Sarkar v. State of WB-

Second FIR
Multiple FIRs in a same case are prohibited. Two tests-
Test of sameness
Consequence test

Ram Lal Narang v. State- Stolen pillars case. When the two FIRs dispose the commission of two difference offense. They both can be registered.
Amitbhai Anilchandra Shah v CBI-
Babu Bhai v State of Gujarat-
Anju Choudhary v. State of UP- A Hindu boy was killed in Gorakhpur and FIR was registered in that case. Subsequently riots occurred as result of communal speech by Yogi Aadityanath- the local MP and religious leader in which Anju Choudhary- the MLA of the area was also present. In the riots the shops of many muslims were destroyed. One person another FIR. The court allowed both FIR’s to subsist as offenses in both FIRs were different.
T T Antony v. State of Kerala-

156(1)- Police power to investigate cognizable offense without the order of magistrate. It offers wide powers on police officer to investigate a cognizable offense. This statutory right of police cannot be interfered with or controlled by judiciary.
156(3)- Any magistrate empowered under S.190 may order such an investigation as above mentioned but only at pre-cognizance stage. Also, he cannot order investigation by an agency other the police officer in charge of a police station (KERALA v MUSA HAJI)
SAKIRI VASU V UP- magistrate has wide power to direct registration of FIR and to ensure proper investigation. For this purpose he can monitor the investigation as well. If investigation is not done properly, the aggrieved person may directly approach the magistrate.

Two kinds of FIR
Under 154
Under 157- if the offers receives the information of the commission of cognizable offense by any means other than the mentioned in 154. In this case he will have to send a report to magistrate under 158 so that he can control the investigation and issue appropriate directions. (Lalita Kumari case) Provided that he shall not investigate if it appears to him that there is no sufficient ground for investigation.
Remember, reports under 158 and 173 are different. The former is submitted before investigation and the latter after investigation.
In case of Information received under 154, after registering FIR, he shall investigate the case under 156(1) and present the police report after investigation to the magistrate under 173.
In case of information received under 157(1), the magistrate can either investigate himself or order the police to investigate under 159 and file the report under 173.

160- Police officer’s power to require attendance of witnesses who appear to be acquainted with the facts and information of the case. Exceptions-
child less than 15 years of age
Women
Person above 65 years
Physically and mentally disabled
161- has to be read with 162. examination of witnesses by the police. They are bound to answer truly all the questions except those that have the tendency of self incrimination, or a penalty or forfeiture. These are not to be used as evidence (Ramprasad v State of Maharashtra) , KATHI KALU AUGHAD (subjecting a person to torture is not only illegal but is also punishable). Refusal to depose is punishable offense. But police cannot use force. Any statement taken out of coercion is not admissible (Kartar Singh v Punjab)
NANDINI SATPATHY- when it comes to justice, one cannot remain silent when he/she is under legal duty to speak except in cases that can result in self incrimination.
162- statements recorded under 161 not to be signed and not admissible as evidence but can be used for corroboration.
173- police report.
173(6)- police can exclude those information in the police report which he thinks is not relevant for the purpose of proceedings or its disclosure is not in the interest of justice and expunge it from the copies of report given to the accused after confirming from magistrate.
VK SASHIKALA case- but all documents of the case has to be provided to the magistrate under 173(5).

ARREST-
Arrest is the process of taking someone suspected of having committed a crime into custody-
S.41 deals with Arrest of persons-
When police may arrest without a warrant from magistrate-
If a person commits a cognizable offense in the presence of a police officer.
Against whom-
A reasonable complaint has been made or
A credible information has been received or
A reasonable suspicion exists that he has committed a cognizable offense punishable with imprisonment less than seven years if the following conditions are satisfied-
The police officer has reasons to believe that such person has committed that offense.
The police officer is satisfied that such arrest is necessary
To prevent such person from committing further crime or
For proper investigation of the offense or
To prevent the person from tampering with evidence or
His presence in the court cannot be insured without his arrest
And the police officer shall record in writing the reasons for the arrest or non-arrest.
Ba) against whom a credible information has been received that such person has committed a cognizable offense punishable with more than 7 years imprisonment or death.
C) who has been declared a proclaimed offender
D) in whose possession a property suspected to be stolen has been found
E) who obstruct the police in the execution of his duty
F) suspected of deserter of the armed forces
G) International criminal who has committed a crime which is punishable under IPC, and any extradition warrant has been issued against him
H) who being a released convict commits breach of any rule .
for whose arrest any requisition written or oral has been received from another police officer.

41A- the police officer shall in all cases where the arrest of a person is not required under the provisions of 41(1) issue a notice to that person for his appearance before him. And if that person complies with the order, there is no need to arrest but he does not comply with order, then he can be arrested.
41D- Right of accused person to meet an advocate of his choice during investigation, though not throughout the interrogation.
42- Arrest on refusal to give name and address.
43- Arrest by private person.

ARNESH KUMAR V BIHAR- dowry arrest case and SC guideline on Arrest and the checklist system.
JOGINDER KUMAR V UP- A person cannot be arrested on mere suspicion of his complicity into an offense or because it is lawful for the police officer to do so. Arrest can cause irreparable damage to the self-esteem and reputation of a person so police has to exercise the power of arrest very carefully.

SEARCH WARRANTS-
93- Where the court has reasons to believe (sufficient cause to believe) that a person will not comply with the summons and produce documents or things or where court considers it necessary for the purpose of any trial inquiry or inspection, it may issue a search warrant [(93(1)c]- General search warrant. General search warrant is not issued during investigation.
93(1)a-b— specific search warrant.
CONSTITUTIONAL VALIDITY OF WARRANTS
Search warrant under 93(1)(a) can be issued only in cases where a summon has been or might have been issued. Search warrants are not violative of 20(3) of constitution which gives protection to the accused under testimonial compulsion. In these cases the search and consequent seizure are not the acts of the accused person at all unlike testimony amounting to self -incrimination. They are acts of another to which is obliged to submit and not his testimonial act in any sense.
A different view would lead to monstrous result. A person may commit a murder an bury the body in his courtyard or keep the articles of loot in his almirah. The constitution is not intended by law makers to be a charter of lawlessness and there is noting in 20(3) to prevent a search under the provisions of this act. (MP SHARMA V SATISH CHANDRA).

SUMMONS- 91
Summons are a kind of judicial notice and can be served to any person not necessarily the accused. If they are not complied with, court can punish under 188 of IPC. Both civil and criminal courts can issue summons though process are different. It is issued by class 3 rank officer of the court called ‘process server’
Purpose of issuing summons-
to require the presence of any person acquainted with the facts and circumstances of the case
To procure any document in the custody of any person.

Contents of Summon-
name of the person
Address of the person
Specific time and date
Court name, number and place
The name of document that the person is to bring
Must bear the signature of the person issuing summons
Seal of the court

Execution of Summon- through a police constable of the same jurisdiction, the person is residing. Even a police officer of lowest rank is considered a police officer according to Delhi Police Act.
the police goest to the place of the person to who whom the summons are to be served.
He can paste the summon at the house of the person if he could not deliver him in hand
Can be given in hand of the person, by post, courier, newspaper, beating of drum, or any male member of the family

WARRANT CASE-
This also can be served by both criminal and civil courts. Warrant cases are those cases where punishment is more than two years imprisonment. It is a command of court issued for a specific purpose.
to make person appear before the court
To produce a document
For arrest, search and seizure
Executing a death sentence
In civil cases-
when summons are not complied with
Person is evading the process of court
When court thinks issuing of summons will not suffice.
Firstly, bailable warrant is to be issued and non-bailable warrant is to be issued only when the bailable warrant is not complied with.
Search may be conducted even without warrant in contingency.

SEARCHES-
S.100 talks about arrest. It has to be read with S. 47 and 51. Any substantial departure from the due procedure will result in illegality.
the police officer himself has to offer the search warrant to the person concerned
Search has to be conducted in the presence of two independent witnesses of the locality who are respectable person having no criminal record (who are disinterested in the outcome of the case)
Generally school teacher were considered respectable, untainted, unbiased.
Two witnesses to ensure transparency, honesty and genuineness of the search
A respected person cannot refuse to become witness to the search. Refusal is punishable
SADHU SINGH V STATE OF PUNJAB- requirement of two respectable, independent witnesses is a precondition for any search.
51(2)- search of a female has to be done by a female officer.

3 KINDS OF SEARCHES-
Legal- where court has power to issue search warrant, procedures are substantially compiled with and the police officer acts in good faith. All evidence procured through legal search are admissible as evidence.
Illegal- when court does not have power to issue search warrant, procedures not substantially complied with and the police officer does not act in good faith. In such cases the person has right to resist and self defense. (Malakh Singh v State; State of Rajasthan v Rahman). Good faith on part of the office is necessary. Any evidence procured by illegal search is inadmissible. RULE OF EXPULSION APPLIES IN THIS CASE. (MAPP V OHIO (drug smuggler-girlfriend-obscene material); ARIZONA V EVANS. But after the 9/11 attack the rule of expulsion was relaxed in USA in cases of state security. In India there is no rule of expulsion. It only appliance in cases of not substantial compliance of due procedure resulting gross miscarriage of justice. (MP SHARMA V SATISH CHANDRA; KHET SINGH V UOI)
Irregular- when some provisions are not complied with like in family law child marriage is irregular. Legality of search is not vitiated.
In the seizure memo police has to specify everything seized.

ARRESTS
Kinds of Arrest
With warrant
Without warrant
Pre-offence arrest (151)
Post offence arrest (41-44)
Least susceptible (45-armed forces personal)
Less susceptible (41b- Arnesh Kumar case)
More susceptible (clauses of 41 other than b)
Rights of arrested persons-
Institution Centric Rights- obligation on institutions like police to ensure these rights.
41B- Procedure of arrest and duties of officer making arrest
50A- relatives or friends to be informed of time and venue of arrest and custody.
Arrestee Centric Rights-
para 35 DK Basu case-the 11 directions that includes-
Identity of the police personal
Arrest memo and its attestation by either family member or respectable person
Family or friend to be informed of at the earliest in the place of arrest and custody
Medical inspection if required and requested by the arrestee
Medical examination every 48 hours during the period of detention
Copies of all document to be sent to ilaka magistrate
Meeting lawyer during interrogation but not necessarily throughout the investigation.
Police control rooms for recording information about arrest
Article 22 of Indian Constitution
To be informed of the grounds of arrest
Right to consult and defended by lawyer of own choice
Right to be produced before magistrate within 24 hours of arrest
S.41D- Right of arrested person to meet an advocate of his choice during interrogation.
S.56 CrPc- Person arrested to be taken before Magistrate or officer in charge of police station without unnecessary delay.
S.57 CrPc- Person arrested not to be detained more than twenty-four hours in absence of special order from magistrate under S.167. (pre cognizance stage)
S.58 CrPc- Police to report all apprehensions without warrant to the District Magistrate.
Joginder Kumar case-
54- medical examination of arrestee and copy be supplied to him.

COGNIZANCE
Though not defined in the CrPC but has been well settled in various court decisions including Tula Ram v Kishore Singh that cognizance is taken by the magistrate when magistrate after taking note of an offense under 190 applies his mind and proceeds further under 200, 202 and 204 by initiating judicial proceedings but this application of mind is not for the purpose of investigation under 156(3) or issuing summons or warrants for search for the purpose of investigation. Cognizance will always lead to issuing of process. And cognizance is always taken of the offence and not the accused.
In Tula Ram case, the allegations made against the accused made out a case exclusively triable by the Court of Sessions the Magistrate -was clearly debarred from ordering any police investigation, but he was not debarred from making any enquiry himself into the truth of the complaint.

Investigation under 202 is basically postponement of issue of process. See Mohinder Singh v. Gulwant Singh.

Under 190 a magistrate can take cognizance in three cases-
on receiving a complaint which is defined in 2(d)
On police report [2(d)]
Police files the charge sheet and on the basis of that magistrate takes the cognizance. Magistrate can take cognizance irrespective of the view express by police in the charge sheet. Generally this can happen only in cases of Final Report/Closure Report.
On any other information received other than from police or upon his own knowledge
Abhinandan Jha v Dinesh Mishra.
Supreme Court observed that magistrates didn’t have power to call upon police to submit charge sheet after final report under Section 173 (1) has been filed – at most he can ask police to carry out further investigation under Section 156 (3) if not satisfied by final report – Order of Magistrate directing police to file charge set aside.

The use of the words ‘may take cognizance of any offence’, in sub-s. (1) of s. 190 in our opinion imports the exercise of a ‘judicial discretion’, and the Magistrate, who receives the report, under s. 173, will have to consider the said report and judicially take a decision, whether or not to take cognizance of the offence.

In this case the accused is entitled to have the case inquired into or tried by another magistrate.(S.191)
Under S.263 a Magistrate is debarred from investigating a case trial by sessions court but he can still inquire to ascertain the truth of the complaint.- Tula Ram case.
In 190, if the magistrate chose to directs the police for investigation under 156(3), it will not amount to taking of cognizance as 156(3) comes under pre-cognizance stage.
Magistrate in no case can ask the police to investigate once he has taken the cognizance nor he can ask the police to file charge sheet if the police comes with the closure report under 173 but he can inquire into himself. Investigation under 202 is of different nature and not a general investigation at pre-cognizance stage.

S.195-199 are exceptions to magistrate’s power of taking cognizance. For example-
Under 197- sanction is required in case of public servants, armed forces, judges etc. In 198- no cognizance in domestic violence cases, rape by husband in judicial separation cases except on complaint of wife or unless court is prima facie satisfied.

SCRUTINY OF COMPLAINT
A magistrate upon receiving a complaint can-
send it for police investigation under 156(3) [No cognizance as he has not applied his mind to take subsequent steps or initiate judicial proceedings under 200, 202, 20o4 etc]
Can direct it to competent magistrate

If takes cognizance then the following steps are to be followed-
Examination of complainant and witnesses if present on oath (to ascertain false or vexatious/frivolous complaints)- complaint be reduced to writing- shown and signed by the complainant and witnesses present. (not necessarily to be signed or examined if the complaint is already in writing) S.202. For more details see- Mohinder Singh v. Gulwant Singh
Whether examination of all witnesses cited in complaint is necessary for taking cognizance?
No. Only those produced by the complainant. See Shivjee Singh v Nagendra below.

Complaint mechanism
2(d) – any allegation made orally or in writing to magistrate with a view that he/she shall take some action against some person known or known who is alleged to have committed some offence but it does not include police report.
This section cannot be availed by any accused against any police action.
Complaint cannot be made against action taken under provision of 144.
Accused – when a person is named accused in any FIR.
What magistrate will do?
can direct police to investigate under 156(3)
Can investigate himself under 159
Can take cognizance under 200, 201, 202 and issue process under 204
Or dismiss it under 203
When a magistrate is competent to undertake complaint?
When he is competent under 190
Competent under 132
There is complaint is under 195

Hardeep Singh v Punjab 2013
Santosh Kumar Himatsingha v Snowlion Automobile 2007
Shivjee Singh v Nagendra 2010
Whether examination of all witnesses cited in complaint is necessary for for taking cognizance of the offense in a case exclusively triable by court of session?
Facts- murder of a person- FIR- police filed closure report- protest petition by relatives- magistrate took it as complaint and asked the complainant to produce witnesses- 2 out 4 witnesses examined and cognizance taken- accused challenged the doing so.
Proviso to Section 202(2) Cr.PC uses the word SHALL but it makes mandatory for the magistrate to examine all witnesses produced by complainant and not necessarily all witnesses cited in the complaint. and therefore making it discretionary and not mandatory in character-examination of all the witnesses cited in the complaint by the magistrate. The object of examination is to ascertain the truth and falsehood of the complaint. If one the examination of only a few, the magistrate is satisfied that a case has been made out, he need not examine all the witnesses.

Also in a complaint disclosing a case exclusively triable by court of session, though the magistrate cannot ask for investigation by police but he is required to examine the witnesses to ascertain the truth or falsehood of complaint.
The investigation by police under 202 on direction of magistrate is at post cognizance stage the aim of which is only to look if prima-face case is being made out and therefore its scope is narrower than the pre-cognizance investigation under 156(3)

Mohinder Singh v. Gulwant Singh
The scope of enquiry under Section 202 is extremely restricted only to finding out the truth or otherwise of the allegations made in the complaint in order to determine whether process should issue or not under Section 204 of the Code or whether the complaint should be dismissed by resorting to Section 203 of the Code on the footing that there is no sufficient ground for proceeding on the basis of the statements of the complainant and of his witnesses, if any.
The question whether the evidence is adequate for supporting the conviction can be determined only at the trial and not at the stage of the enquiry contemplated under Section 202 of the Code.

156(3)-
he doesn’t apply his mind and gives the case directly to police (pre-cognizance order of investigation)
Apply his judicial mind under 202 (post-cognizance order of investigation) But a report under 202 is not called charge sheet under 173 and he cannot take cognizance on it as he already has taken under 190. He can conduct inquiry himself or ask the police to do so.
What if he is not satisfied by the police report under 202?
He can dismiss the complaint under 203 recording his reasons when he thinks no case has been made out which does not necessarily means that no wrong has been committed. (190).
Consequences of dismissal.
182 and 211 of IPC

COMMITTAL OF PROCEEDINGS TO SESSIONS COURT
Magistrate can commit certain cases to session court that are exclusively triable by session courts which sessions courts cannot directly take cognizance of. He will do after examining the police report and application of his own mind.
Dharampal v State of Haryana
Issue- Whether the case can be transferred to another investigating agency after the filing of Charge-sheet by Police?
Whether Constitutional courts have unfettered power to transfer the case to another investigating agency at any stage of the trial?
The superior courts are even vested with the power of transferring investigation from one agency to another, provided the ends of justice so demand such action.
In 209-209 committal of proceedings to sessions court after complying with section 207 and 208 when it appears to the magistrate as such on the basis of the face value and not the merit of the evidences.
All this actions to determine all this falls under inquiry.

Zahira Habibullah Sheikh v Gujarat
Both the state and material witnesses approached SC seeking retrial as trial was not conducted properly due to the witnesses turning hostile and the non-cooperation of the Public Prosecutor. Supreme Court not only ordered the retrial but also transferred the case to the State of Maharashtra in the interest of justice though none of the parties had sought to transfer the case.

TRIAL AND FRAMING OF CHARGES (225-
Trial before a sessions court (warrant cases) 225-237
Trial of Warrant cases by Magistrate (warrant cases) 238-243
On police report
On other than police report 244-247
Trial of summons cases by Magistrate (summons case) 248-259
Summary Trials (summons case) 260- 265 (where punishment is unto 2 years. Same procedure as in summons case but punishment will not be more than 3 months.
According to Section 311, any court may at any stage of any inquiry or trial summon any person as witness or examine any person in attendance though not summoned as witness or recall and re-examine any person already examined.
Suleman Usman Memon v Gujarat
General rule is that evidence of one party should not be received against another party without the latter having an opportunity of its truthfulness by cross-examination.
Accused person can also be a witness but after declaring in writing and in such cases might be subject to cross examination.
FRAMING OF CHARGES Is to be the magistrate or sessions judge either on submission of charge sheet by the police under 173 or otherwise than on a police report as well after application of the judicial mind by the competent judge. At this stage only prima facie case needs to be there and not necessarily a fully corroborated comprehensive beyond reasonable doubt case. If the judge discharges the accused then he will have to necessarily write the reasons but not in cases when he choose to frame the charges. Section 211-214 deals with the framing of the charges.

  1. Trial before Sessions Court (Summons cases)
    225- Prosecution to be conducted by Public Prosecutor
    226- Prosecutor shall open the case in court by describing the charges brought against the accused and presenting evidence to prove the guilt.
    227- The Judge will discharge the accused if there is no sufficient ground to proceed but record the reasons for doing the same.
    228- if the Judge believes there is a ground for presuming that the accused has committed the offence and the case is not triable by court of session, she shall frame the charges which is a kind of formalized accusations.
    Sajjan Kumar v CBI
    The sufficient ground for framing of charge here only denotes the existence of a prima-facie case and not ground sufficient to convict the accused at this stage. It has a limited purpose of finding out whether or not a prima facie case against the accused has been made out.
    If two views are emerging one from prosecution and one from defense, defense side shall be took in the consideration.
    Affirmed the guidelines of Union of India v. Prafulla Kumar Samal in which it was said that The presumption of the guilt of the accused which is to be drawn at the initial stage is only for the purpose of deciding prima facie whether the Court should proceed with the trial or not.
    229- if the accused pleads guilty, the magistrate may convict him accordingly. Pleading guilty has to be done by the accused himself and not through his lawyer.
    230- if the accused refuses to plead guilty, magistrate may set a date for examination of prosecution witnesses and evidences.
    State v Debendranath
    Whether at time of framing of charge or taking cognizance, accused has right to produce any material to prove his innocence?
    Held- NO. Section 91 does not confer any right on accused to produce document in his possession to prove his defence. At the stage of framing charge, the trial court is only required to consider whether there are sufficient grounds to proceed against the accused.
    State Of Orissa vs Debendra Nath Padhi
    Is he supposed to write all his reasons as to why accused has committed the offense?
    No. Explaining in too much detail will indicate his prejudice and premature formation of opinion.
    FURTHER INVESTIGATION CAN BE DONE ONLY TILL THE TIME OF THE FRAMING OF CHARGES- Mukul
    After the Judge has framed the charge, whether court can recall?
    No. Trial will proceed and come to a logical conclusion.
    231- if prosecution doesn’t want certain witnesses to be taken into account, he will first have to request the court to declare them hostile.
  2. Trial of Warrant cases by Magistrate (warrant cases)
    In respect of warrant cases triable by Magistrates, instituted on a police report, Sections 239 and 240 of the Code are the relevant statutory provisions. Section 239 requires the Magistrate to consider the police report and the documents sent with it under Section 173′ and, if necessary, examine the accused and after giving accused an opportunity of being heard, if the Magistrate considers the charge against the accused to be groundless, the accused is liable to be discharged by recording reasons thereof.
    2.1 Case instituted on a police report
    238- first of all ensuring compliance S. 207 which mandates giving of copies of the police report and other documents to the accused.
    239- after going through the he police reports and giving an opportunity to the accused of being heard, the magistrate may discharge if it appears to him that the charges are groundless and record his reasons for the same.
    2.2 Cases instituted otherwise than on police report
    244- in any warrant-case instituted otherwise than on a police report, the accused appears or is brought before a Magistrate, the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution.
    245- discharged after recording reasons when no case against the accused has been made out which, if unrebutted, would warrant his conviction, the Magistrate shall discharge him.
    Prabhakar Deshmukh v Shubhash Karmabat
    Before discharging accused in Police report, he has to look if the charges are groundless
    Somnath Thapa v Maharashtra
    He will look on the probability of innocence and not detailed evidence
  3. Trial of Summons case by Magistrate
    251- same procedure but framing of charges is not necessary in this case even when accused does not pleads guilty.
    252- same
    253- Conviction on plea of guilty in absence of accused in petty cases
    257- 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 against the accused, or if there be more than one accused, against all or any of them, the Magistrate may permit him to withdraw the same, and shall thereupon acquit the accused against whom the complaint is so withdrawn.

RECORDING OF EVIDENCE
231- Evidence for prosecution
If prosecution doesn’t want certain witnesses to be taken into account, he will first have to request the court to declare them hostile.
It starts from narrative form but letter becomes in the question answer form.
All it means there is no inculpatory evidence.
233- Where the accused is not acquitted under section 232, he shall be called upon to enter on his defence and adduce any evidence he may have in support thereof.

REMAND
167- After the arrest the arrestee is to be produced before magistrate within 24 hours and the investigation has to be completed within 24 hours. This period can be extended by way of police or judicial custody provided that-
the investigation cannot be completed within 24 hours.
Officer has reasons to believe that the allegations are well founded.
Procedure of judicial/police custody-
Police has to approach the nearest magistrate available-
The Judicial magistrate if he he thinks fit can authorize the detention in police custody for a maximum period of 15 days but only after the accused has been produced before him in case of police custody.
Call for further detention is to be taken by the judicial magistrate having jurisdiction to try the case.
This further detention shall only be in judicial custody.
Total period of detention cannot exceed-
90 days in case of where the investigation relates to an offense punishable with death, imprisonment for life or imprisonment for a term of not less than ten years
60 days for any other offense.
But the accused shall be detained in custody so long as he does not furnish the bail amount.
If no judicial magistrate is available then nearest executive magistrate on whom judicial powers have been conferred can authorize the detention in police custody for an aggregate period of 7 days.
All magistrates authorizing detention shall record reasons for doing so.
In any case if investigation is not completed within 6 months, magistrate can stop further investigation in absence of special and satisfactory reasons given by officer.
But the sessions judge if satisfied on request can order further investigation even if the investigation is stopped after 6 months.

Anupam Kulkarni (Computation of period of remand)
Reiterated the same. There can not be any detention in the police custody after the expiry of first fifteen days even in a case where some more offenses either serious or otherwise committed by him in the same transaction come to light at a later stage. But this bar does not apply if the same arrested accused is involved in a different case arising out of a different transaction.
Cannot have separate remand for new offenses discovered in the same transaction, otherwise police will misuse the fuck out of it.
Ravi Prakash (Computation of period of remand)
That while computing period of ninety days, the day on which the accused was remanded to the judicial custody should be excluded, and the day on which challan is filed in the court, should be included. That being so, in our opinion, in the present case, date 5.7.2013 is to be excluded and, as such, the charge sheet was filed on ninetieth day, i.e., 3.10.2013. Therefore, there is no infringement of Section 167(2) of the Code.
Chaganti Satyanarayan (Computation of period of remand)
that period of ninety days Under Section 167(2) of the Code shall be computed from the date of remand of the accused and not from the date of his arrest Under Section 57 of the Code. However, in the present case, we have to see the relevant date as the date when the accused surrendered and remanded by the court.

Dinesh Dalmia (Notional Surrender)
DD was arrested in Delhi. On transit remand he was produced before magistrate in Chennai. He was required in Calcutta also. The IA requested the Calcutta authority to produce production warrant. He had surrendered in court of Chennai for the crime he has committed in Calcutta.
The condition is that the accused must be in the custody of the police and so called deemed surrender in another criminal case cannot be taken as starting point for counting 15 days police remand or 90 days or 60 days as the case may be.

Dawood Ibrahim (Remand of absconder)
Can police custody be granted for an absconding accused after the filing of charge sheet ie after the post-cognizant stage?
Three judge bench of SC laid down the law on the issue relating to grant of police custody of a person arrested during further investigation. In paragraph 11 of said case, Court has held as follows: ‘There cannot be any manner of doubt that the remand and the custody referred to in the first proviso to the above Sub-section are different from detention in custody Under Section 167. While remand under the former relates to a stage after cognizance and can only be to judicial custody, detention under the latter relates to the stage of investigation and can initially be either in police custody or judicial custody. Since, however, even after cognizance is taken of an offence the police has a power to investigate into it further, which can be exercised only in accordance with Chapter XII, we see no reason whatsoever why the provisions of Section 167 thereof would not apply to a person who comes to be later arrested by the police in course of such investigation.’
Rathin Dhanpat (Remand of absconder)
Can police custody be granted for an absconding accused after the filing of charge sheet ie after the post-cognizant stage?
309(2); 173(8)
Upheld the finding of Dawood Ibrahim case. Notional surrender does not count towards number of days in custody, and computation of period of custody shall begin only after the accused is produced physically before the relevant magistrate.

Aslam Babalal Desai (Impact of filing of charge sheet)
Can a bail granted under under 167(2) for failure to complete the investigation within the specified time period be cancelled on presentation of Challan/Charge sheet?
Where a person in released on bail in such circumstances under the said sub-section, such release must be deemed to be one under the provisions of Chapter XXXIII (S.436 to 450) of the Code which contains provisions in regard to bail and bonds and empowers the court to release an accused person on bail and at the same time also provides for cancellation of bail in certain eventualities but the circumstances and conditions for that is not given in the code. The purpose behind 167 is speedy investigation failure of which entitles the accused to be released under Chapter XXXIII. The fiction of release on bail under Sub-section (2) of Section 167 with Chapter XXXIII, i.e. Sections 437 and 439 of the Code, was to treat the order as one passed under the latter provisions. Once the order of release is by fiction of law an order passed under Sections 437(1) or (2) or 439(1) it follows as a natural consequence that the said order can be cancelled under Sub-section (5) of Section 437 or Sub-section (2) of Section 439 on considerations relevant for cancellation of an order thereunder. (risk of hinderance to justice). Even where two views are possible, this being a matter belonging to the field of criminal justice involving the liberty of an individual, the provision must be construed strictly in favor of individual liberty since even the law expects early completion of the investigation. The prosecution cannot be allowed to trifle with individual liberty if it does not take its task seriously and does not complete it within the time allowed by law. It would also result in avoidable difficulty to the accused if the latter is asked to secure a surety and a few days later be placed behind the bars at the sweet will of the prosecution on production of a charge-sheet.
Raghubir Singh ( (Impact of filing of charge sheet)
Some persons were arrested while trying to cross Indo- Nepal border on suspicion of conspiracy and sedition charges on the basis of incendiary material discovered from them. They applied for bail which was rejected. But magistrate released them on bail after police failed to file challah within 60 days under S.167 Cr.PC. IA then filed the charge sheet and requesting the cancellation of the bail. The court cancelled the bail. The accused appealed to SC. SC observed-
Orders for release on bail are effective until an order is made under Section 437(5) or Section 439(2). These two provisions enable the Magistrate who has released an accused on bail or the court of Session or the High Court to direct the arrest of the person released on bail and to commit him to custody. The two provisions deal with what is known in ordinary parlance as cancellation of bail. Since release on bail under the proviso to Section 167(2) is deemed to be release on bail under the provisions of Chapter XXXIII, an order for release under the proviso to Section 167(2) is also subject to the provisions of Section 437(5) and 439(2) and may be extinguished by an order under either of these provisions.

BAIL/ REMAND S. 437 CrPC.
Temporary release of an arrested person from legal custody awaiting trial on production of some bond/surety.
167(2)a(ii)-
Nirala Yadav (Remand under Special Laws)
Police did not file the challan within the stipulated time and therefore the accused was released on bail. The police filed an application seeking extension for filing charge sheet.
Held- police filed the application for extension only after the accused has already applied for bail and therefore prosecution cannot frustrate the valuable legal right of the accused because of their own negligence in filing the charge sheet on time.
Sanjay Dutt (Remand under Special Laws)- para 43-53 Clarified Hitendra Vishnu Thakur
The indefeasible right accruing to the accused in such a situation is enforceable only prior to the filing of the challan and it does not survive or remain enforceable on the challan being filed, if already not availed of. Once the challan has been filed, the question of grant of bail has to be considered and decided only with reference to the merits of the case under the provisions relating to grant of bail to an accused after the filing of the challan. The custody of the accused after the challan has been filed is not governed by Section 167 but different provisions of the CrPC. Once the challan is filed, the accused can be arrested and put into custody again.
Uday Mohan Acharya case (Remand under Special Laws)- para 5 to 14, and dissenting opinion Issue- whether accused is entitled to bail after the non-submission of challan within 60/90 days of the custody as a matter of right?
Held- Yes but on the furnishing of the bail bond. Affirmed Sanjay Dutt.
Ahmad Bashir (Impact of filing of charge sheet)
Some persons accused in a murder case were released on bail after the non-filing of challan with 60 days of custody. But the bail was cancelled after the police filed the challan. The accused challenged the order of cancellation of bail.
Held- The fact that before an order was passed under Section 167(2) the bail petitions of the accused were dismissed on merits is not relevant for the purpose of taking action under Section 437(5). Neither is it a valid ground that subsequent to release of the appellants a challan was filed by the police. The court before directing the arrest of the accused and committing them to custody should consider it necessary to do so under Section 437(5). This may be done by the court coming to the conclusion that after the challan had been filed there are sufficient grounds that the accused had committed a non- bailable offence and that it is necessary that he should be arrested and committed to custody.
Raghubir Singh (Impact of filing of charge sheet) – para 20-23
Some persons were arrested while trying to cross Indo- Nepal border on suspicion of conspiracy and sedition charges on the basis of incendiary material discovered from them. They applied for bail which was rejected. But magistrate released them on bail after police failed to file challah within 60 days under S.167 Cr.PC. IA then filed the charge sheet and requesting the cancellation of the bail. The court cancelled the bail. The accused appealed to SC. SC observed-
Orders for release on bail are effective until an order is made under Section 437(5) or Section 439(2). These two provisions enable the Magistrate who has released an accused on bail or the court of Session or the High Court to direct the arrest of the person released on bail and to commit him to custody. The two provisions deal with what is known in ordinary parlance as cancellation of bail. Since release on bail under the proviso to Section 167(2) is deemed to be release on bail under the provisions of Chapter XXXIII, an order for release under the proviso to Section 167(2) is also subject to the provisions of Section 437(5) and 439(2) and may be extinguished by an order under either of these provisions.
167 is open to Sessions court also as far as custody is concerned under 193. What is important is for 167 is date of arrest.
Bail sections- 167, 389, 169, 110-116, 436.
436- When bail to be given in non-bailable cases?
At any stage of the proceedings. If the person is indigent and is unable to furnish surety, he can be released on furnishing personal bond.

389- Kashmira Singh v State of Gujarat- if the appeal cannot be heard in near future, the convict shall be granted the bail on recording of reasons or special reasons as required by the court or officer.
437- A person accused of commission of non-bailable offense and arrested without warrant can be released on bail in following cases-
no release in case of offense punishable by death or imprisonment for life, without citing special reasons or except in cases where the accused is sick, inform, women or below 16 years of age. (in all such cases the hearing of public prosecutor is must).
On execution of a bail bond for his appearance whenever required.
In cases of offenses where punishment is 7 years or more, a person can be released on bail on following conditions-
No inducement or threat to victims or witnesses
No commission of similar offense
Appearance whenever required
Other such conditions as the court may specify in the interest of justice.
A person shall be released on bail in all such cases where the investigation is not completed within 60 days and he remained in custody for the whole period unless the magistrate directs otherwise for special reasons.
At any time after the conclusion of trial and before the delivery of judgement where the court believes on reasonable grounds that the accused has not committed the offense he is accused of, on execution of bond.

Cases-
Sandeep Kumar Bafna- (Role of HC and Sessions Court in Bail)
Once prayer of surrender is accepted, the accused would come into the custody of the court (session as well as High Court) within contemplation of section 439. In case of regular bail, Applicant if not in custody of court, application for bail under Section 439 not maintainable.
Sanjay Chandra (Relevant factors in conditional bail)
Objective and criteria for bail-
that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Bail should not be refused unless in extreme circumstances to secure the presence of accused during trial. The two paramount considerations, while considering petition for grant of bail in non-bailable offence, apart from the seriousness of the offence, are the likelihood of the accused fleeing from justice and his tampering with the prosecution witnesses.
Ash Mohammad- Cancellation of Bail
Case of abduction. Trial Court rejected the application for bail – High Court directed for enlargement on bail on certain conditions – Whether the order passed by the High Court is legitimately acceptable and legally sustainable?
Held, No – High Court has ignored the criminal antecedents of the accused – What has weighed with the High Court is that the accused had spent seven months in custody – That may be one of the factors but that cannot be the whole and the sole factor in every case – It depends upon the nature of the offence, the manner in which it is committed and its impact on the society
Mehboob Dawood Shaikh- Cancellation of Bail
Is application for the cancellation of bail has to be presented before the same learned Judge who granted the bail ?
Held, need not be followed as a statutory requirement where the cancellation is sought for on grounds different from those which existed at the time of granting bail.
Mere assertion of an alleged threat to witnesses should not be utilized as a ground for cancellation of bail, routinely.
Neeru Yadav- Cancellation of Bail
when stand was taken that the accused was history sheeter, it was imperative on part of High Court to scrutinize every aspect and not capriciously record that accused was entitled to be admitted to bail on ground of parity.
Prahlad Singh Bhati- Bail when more serious offence is added
that “the mere initial grant of anticipatory bail for lesser offence, did not entitle the Respondent to insist for regular bail even if he was subsequently found to be involved in the case of murder.” It was further observed that “with the change of the nature of the offence, the accused becomes disentitled to the liberty granted to him in relation to a minor offence, if the offence is altered for an aggravated crime.”
Dhivan v State- Bail when more serious offence is added
the earlier bail granted to the accused will not automatically stand cancelled even if a more serious offence is added subsequently.
Abhay Singh Yadav- Bail when more serious offence is added
The Court is inclined to follow the decisions of the Supreme Court in Prahlad Singh Bhati and Hamida (supra) to conclude that since the offence now added is a far graver one, the Petitioner is disentitled to continuation of the bail granted by the order dated 21st February 2014. Thus there is no impediment to the arrest of the Petitioner at this stage.
Amravati- Disposal of bail application same day
Application for bail under Section 437, Criminal Procedure Code should ordinarily be decided by the Magistrate the same day, except in rare cases where reasons shall be recorded in writing for adjourning the hearing of the bail application. As regards the application under Section 439, Cr. P.C., it is in the discretion of the Sessions Judge considering the facts and circumstances whether to decide the bail application the same day or not, and it is also in his discretion to grant interim bail the same day subject to the final decision on the bail application later.

BAIL BOND
Moti Ram v MP
Is it within the power of the court to reject a surety because the accused is a resident a different district or State ?
If the Court decides to grant bail with sureties, what criteria should guide it in quantifying the amount of bail?

ANTICIPATORY BAIL
438- Grant of bail to person apprehending arrest. This section does not mandate the presence of the applicant in court or in custody unlike section 437.
If a person apprehends arrest in a non-bailable offence which he is accused of having committed, he may apply for anticipatory bail under this section to sessions or High Court. Court will grant bail when it thinks fit on certain conditions like-
he shall be available when required.
Will cooperate with the process of court.
Any under section under S.437(3)

Cases
Gurubaksh Singh
Whether anticipatory bail can last only till the filing of charge sheet ? And whether after the filing of charge sheet the accused will have to necessarily surrender and apply for fresh bail under 439?
Every kind of judicial discretion, whatever may be the nature of the matter in regard to which it is required to be exercised, has to be used with due care and caution. That the practice of passing orders of anticipatory bail operative for a few days and directing accused to surrender before magistrate and apply for regular bail are contrary to law. The grant or refusal to grant bail lies within the discretion of the Court. The grant or denial is regulated, to a large extent, by the facts and circumstances of each particular case.
Siddharam Mhetre
Facts- political rivalry between Congress and BJP candidates. One BJP worker shot dead. Congress candidate accused of instigating the crime.
Issue- Whether anticipatory bail can last only till the filing of charge sheet ? And whether after the filing of charge sheet the accused will have to necessarily surrender and apply for fresh bail under 439?
Affirmed Gurubaksh Singh case.

439- Special power of High Court and sessions court in granting of bail. Conditions-
accused must be in the custody of court
Must give sufficient reasons to the satisfaction of court for his release.

APPEALS
Chapter 29, Section 372
372- unless explicitly provided by this code, no appeal shall lie. (but what about under Constitution?)
Proviso says that victim has right to appeal against conviction, acquittal, amount of compensation (S.28, 29, 357) etc
1st appeal to higher court is always is a matter of right.
Problem 1- S.357(2) says that no fine/compensation shall be paid in case of appeals (If the fine is imposed in a case which is subject to appeal no such payment shall be made before the period allowed for presenting the appeal has elapsed, or, if an appeal be presented, before the decision of the appeal.)
S.391, 341, 449, 456, 458 deals with appeals.
CONSTITUTIONAL PROVISIONS- under Article 132, 134 (for criminal matters)
136 in cases where HC refuses to grant certificate of appeal.
Can appeal lie against bail?
Yes under constitutional provisions and extraordinary jurisdiction of Court.
Generally police arrests rogue elements under the peace, law and order provisions of CrPC eg under 106,107 etc.

375- No appeal when accused has plead guilty?
Unless in case of gross miscarriage of justice, sentence, fraud etc.
In Plea Bargaining (262) also no appeal except in violation of fundamental Right under 226, 227, 136. (Plea Bargaining was also introduced with an objective to reduce vast litigation)
Both Plea Bargaining and pleading guilty is done by generally people who don’t have access to good lawyers and can’t afford bail and for crimes like arms act, unlawful possession, pretty crimes against state.
376- No appeal in the following cases
Reason- it takes 6 months for courts to hear such appeal which makes no sense.
377- State can go to higher court for higher sentence in case of inadequacy of sentence. Victim can appeal only in case of lesser sentence under 272.
In CBI cases also they can appeal.
What makes police officer different from common man- power of filing charge-sheet.
Section 162 is applicable only to police officers so sometimes specialized agencies like CBI circumvent CrPC by extracting evidence in ways prohibited by CrPC then slowly transfer to regular Police. Custom officials file complaint to magistrate and not reports.

378- Appeal against acquittal. India is among few countries where there is appeal against acquittal. Though in appeal against acquittal there is double presumption of innocence. But no appeal against pretty offenses of bailable and non-cognizable nature.
378(3)- leave of HC in case of state filing appeal. (in case of general leave court my grant without even asking any reasons for seeking leave)
378(3)- special leave of HC in case of appeal by complainant (special reasons maybe)
Can victim appeal in case of FIR? Yes under 372

386- Power of appellate court in appeal against acquittal-
Chandrappa v Karnataka 2007 SCC
An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.
An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favor of the accused.
If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.
379- Appeal against conviction. By High Court.
384- dismissal of appeals summarily after providing the opportunity of being heard to the petitioner on grounds as contemplated in the section after application of judicious mind.

PLEA BARGAININ S.265(A-L)
History
Concept of plea bargaining has been found in Quran and Islamic Shariat where by paying the blood money, the accused may be free from sin in there eyes of Human Law.
Canadian Law commission report talked about pleading guilty for lesser offenses in lieu of lesser punishment on the basis of monetary concession.
India did not have plea bargain till 2006 because Supreme Court was vehemently against it. But after so many law commission recommendation, it was finally included in the CrPC in 2006.
It is applicable and not applicable in the following cases-
Where the prescribed punishment is not more than 7 years of imprisonment.
After the police has submitted the report under 173.
In complaint cases only after Magistrate has taken cognizance of an offence on a complaint or otherwise than on a police report and issued judicial process under 204.
Does not apply to offenses against socio-economic conditions of the country or against women and children.
Does not apply if he has already been convicted of the same offence before. (265B)
Habitual offenders
So far 19 legislations have been excluded from the concept of plea bargaining

FUNCTIONARIES
Prosecution-
has to see if the victim was forced to plea bargain,
if the negotiations are taking place legally and fairly
To make sure the settlement takes place amicably and the voluntariness is not defeated
Place- either in regular court or in Lok Adalat.
Process is issued to the victim, accused and the prosecution but Investigating officers are excluded.
Victims and accused are examined separately in-camera
The judge during plea bargaining process will be different than the one in trial to ensure FairPlay even when the bargaining fails.

KINDS
Charges- but only some are negotiable
Fact- the one admitted by the accused will not be proved by prosecution in the court
Sentence- can be reduced to 1/4th of the original (eg. 6 months in case of 2 years) but cannot be waived of altogether.
1/2 of bottomline- eg if the minimum and maximum punishments for an offence are 2 and 7 years, then 1 years.
Judgement shall be delivered in open court and shall be signed by the presiding officer of the court.
No regular appeals are provided except writ and special leave petitions
Probation of offenders Act also applies in such cases. (265E)
265K- any statement of the accuse during the proceedings shall not be used for any other purpose other than plea bargaining.
Merits and demerits
helps the overburdened judiciary and litigation
Provides space to the victim
Evil but necessity
Has a class and caste character (more beneficiary to rich and elites)

Kasambhai Sheikh v Gujarat
The conviction of the appellant based solely on the plea of guilty entered by him and this confession of guilt was the result of plea of bargaining between the prosecution, the defence and the learned Magistrate. It is obvious that such conviction based on the plea of guilty entered by the appellant as a result of plea bargaining cannot be sustained. It is to our, mind contrary to public policy to allow a conviction to be recorded against an accused by inducing him to confess to a plea of guilty on an allurement being held out to him that if he enters a plea of guilty, he will be let off very lightly. Such a procedure would be clearly unreasonable, unfair and unjust and would be violative of the new activist dimension of Article 21 of the Constitution unfolded in Maneka Gandhi’s case. That the conviction of an accused based on a plea of guilty entered by him as a result of plea-bargaining with the prosecution and the Magistrate must be held to be unconstitutional and illegal.

UP v Chandrika
even if accused confesses his guilt appropriate sentence required to be imposed – mere acceptance or admission of guilt should not be ground for reduction of sentence nor can accused bargain with Court that he is pleading guilty so sentence should be reduced.

Motilal v Madhya Pradesh

COMPOUNDABLE AND NON-COMPOUNDABLE OFFENSES 320

Unlike in plea bargaining, it is not a bilateral issue here between the victim and the accused but it depends upon the unilateral act of the victim in his personal capacity to condone the offenses not on some Monetary value but altruistically.
moral and no monetary consideration
Can be done by state as well under 321
Nature of offense should not be serious
Offenses should be of personal nature or petty
It is generally for offenses mentioned in the IPC. In case of other offenses in other statutes only when specifically mentioned there in.
If the substantive offense is condoned, its abetment or harboring is also condoned
Where the offense involves common intention of many, all are condoned (149 IPC)
If not victim due to non-competence then guardian can compound on his behalf with the consent of court.
If the case has been committed to other court or is in appeal against conviction, then only with the permission of that court.
In case of multiple charges on same accused, victim has a say on compounding either all or some.
Victim again has a say to condone whom in case of multiple offenders for same or different offense.

OBJECTIVES-
to prevent gross injustice. Eg in family ties- 482 IPC
Larger public interest 498A
To maintain personal amicability between parties
Power of HC under 482 CrPC to do ‘Real and Substantial Justice’
Similarly SC under 142 of constitution to do ‘Complete Justice’
In case of rape and subsequent marriage, opinion of various High Courts differ.

WITHDRAWL OF PROSECUTION 321 CrPC
This power belongs to the public prosecutor who can withdraw the prosecution in the larger public interest with the consent of the court.
If any offense is committed against the power of UOI, then state prosecutor has to seek permission of Central Government
In case of CBI investigation, prosecution cannot be withdrawn without permission of CBI
Prosecution can also withdraw Non-compoundable offenses under some circumstances
Case can be withdrawn at any stage from the filing of charge sheet to the pronouncement of Judgement
Locus Standi- opposition counsel has right to appeal in Higher courts against such withdrawl
For socio-economic offenses like Corruption, there is no need for locus standi. One can directly approach Supreme Court through PIL in such cases as they are direct violation of Fundamental Right.

Abdul Karim v Karnataka
Notorious Dacoit and smuggler Virappan kidnapped famous Karnataka Actor Rajpkumar and made made 10 demands to the governments of Karnataka and TN for the actor’s release. Most of the demands were philanthropic/altruistic in nature.
After thorough contemplation, the govt decided to met his demands and withdraw the TADA charges against him in the larger public interest of ensuring peace in the border areas.
This was challenged by the family of an police officer who was killed by Virappan. The protest petition was dismissed by the trial court on the basis of ABSENCE OF LOCUS STANDI.
When the matter went to SC, it reprimanded the public prosecutor for withdrawing the case without proper application of mind in a serious cases involving a notorious. Permission to withdraw could only be granted if the court was satisfied on the materials placed before it that its grant subserved the administration of justice and it was not being sought covertly, with an ulterior purpose unconnected with the vindication of the law, which the executive organs were duty-bound to further and maintain.

Sheonandan Paswan v Bihar
When an application Under Section 321 is made, it is not necessary for the court to asses the evidence to discover whether the case would end in conviction or acquittal. What the court had to see is whether the application is made in good faith, in the interest of public policy and justice and not to thwart or stifle the process of law. The court, after considering the facts of the case, has to see whether the application suffers from such improprieties or illegalities as would cause manifest injustice if consent was given. When the Public Prosecutor makes an application for withdrawal after taking into consideration all the material before him, the court must exercise its judicial discretion by considering such material and, on such consideration, must either give consent of decline consent.
CONSEQUENCE OF WITHDRAWL
if withdrawl is made before a charge has been framed, the accused shall be discharged in respect of the offense concerned
If withdrawl is made after the charge sheet then the accused shall be acquitted in respect of that very offense

WITHDRAWL OF COMPLAINT 257
In trial of a summons case initiated on a private complaint, The complainant with the consent of magistrate can withdraw his complaint before the final order is passed.
There is power to withdraw a trial by warrant case complaint. Only relief in such cases will be under 244 where in case of more than one charges, some can be withdrawn with the consent of magistrate.

JUDGEMENT 253-365
Though not defined in CrPC judgment is the final decision of a court determining the guilt or innocence of the accused after hearing the parties involved and applying judicious mind after the conclusion of the trial and resulting in either conviction or acquittal of the accused.
Judgement always has to be pronounced in open courts except where-
the presence of the accused is exempted by court
The judgement is of acquittal
The accused is absconding

354 CrPC talks about the language and the content of the provisions-
Judgement has to be in the language of the court
Judgement shall contain the point for determination, the decision upon them, and the reasons for them.
Every judgment must necessarily specify the offence and the section of the penal code or any other statute under the accused are charged.
In case of acquittal, it shall specify the offence for which the accused is acquitted and direct that the accused be set at liberty.

Pronouncement can be done in 3 ways (353 CrPC) –
delivering the whole judgement or
Reading out the whole judgement or
Reading only the operative part

Earlier the judgement used to be written by judge himself in his own handwriting but now-days with the invention of typewriter generally the scribe writes it so each page is to be attested by the judge pronouncing the judgement for veracity.
Each page of the judgement is to be signed by the judge if pronounced by him and written by the scribe.
Dissenting judge will write reasons for dissenting and sign on the pages of dissent.
For concurring with another judge also, a judge has to write reasons and attest each page.

Judgement has to be pronounced immediately after the conclusion of the trial or if not then the pronouncement date has to be announced for the reserved judgement. Whenever it is reserved for a future date. Court must give reasons.

Surinder v State of UP
Two judges pronounced the judgement but before delivery one died. But he had his signatures on all the pages of the judgement written by him.
Supreme Court held that until final judgment was delivered Judge has right to alter or modify award – mere signature of Judge do not convey any finality of document – where Judge died before delivery of formal judgment it cannot be said to be valid judgment.
Anil Kumar Ojha v Asaf Ali
The judge gave various opportuneness to the accused to adduce evidence in his favor. When accused didn’t listened and kept asking for more time. As the petitioner did not avail of the opportunities granted to him the Court below ultimately rejected his prayer for time, closed the evidence, heard arguments and posted the case for judgment.
Supreme Court gave the accused another opportunity because the Accused lived in Kolkata and intervals provided by the trial judge were very short.

Features of the judgement-
the language has to be easily understandable by the litigants.
Summary of facts
No flowery and complicated language
Due appreciation of facts and evidence
Sarcastic and undignified language for women not to be used
To personal prejudice on basis of caste, community, religion, race. Decent, gender etc.

State of Bihar v Girija Singh
State of Bihar v Ajay Singh


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