R.V. Kelkar's Lectures On CRIMINAL PROCEDURE including Probation and Juvenile Justice [5 ed.]

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R.V. Kelkar's

Lectures On

CRIMINAL PROCEDURE including Probation and Juvenile Justice

Fifth Edition by

K.N.ChandrasekharanPillai

EIBIC Eastern

Book Company

dg lokwmtea india's leading law

atonprovider

Preface to the First Edition

T

he

Outlines of Criminal Procedure, published in I1977, was my

attempt to provide a new type of book on Criminal Procedure. It was well received by the readers and appreciated by the academic community. Encouraged by this response and on the persistent requests of the publishers, I have ventured to write this book. In a way, the present book, Lectures on Criminal Procedure, is an

abridged and improved version of the Outlines of Criminal Procedure. It is primarily intended for law students. Through these "lectures", I have endeavoured to provide a medium for effective classroom instruction. The book consists of 20 lectures covering all the important aspects of the Criminal Procedure Code, 1973. Each of these lectures is followed by exercises and questions which would be useful to the students. The arrangement and treatment of the subject-matter is topic-wise and not section-wise as is found in most of the books. Moreover, efforts have been made to focus attention on the basic principles of criminal procedure and also on the interaction of the different statutory provisions through which these principles operate in practice. I believe that the topic-wise arrangement of the subject-matter, the analysis of the relevant sections connected with each topic, and the critical appraisal of such sections in the light of judicial decisions, should form the hard core of the reading materials on criminal procedure. More so, when such materials are to be prepared for the students. Within the limitations of space, I have made a further exploratory effort towards this goal. Now it is for the academic community to evaluate this effort and to give its verdict as

to the merits and utility of the book. The traditional section-wise approach, both in respect of books and classroom instructions, is largely responsible for the impression amongst the law students that the study of criminal procedure is dry and unin-

teresting, involving too many technical details to memorise and with too little to stimulate jurisprudential thinking. It is indeed unfortunate that such impressions in different forms and varying degrees have gained ground. Therefore, I have discarded the traditional section-wise approach and adopted a different merhod to make the study of criminal

XII LECTURES ON CRIMINAL PROCEDURE

procedure interesting and meaningful. It is hoped that this would provide the students with new insights into the basics of criminal procedure. It is also hoped that this approach may stimulate fresh thinking which might eventually provide impetus for socio-legal research in the hitherto neglected areas of criminal procedure. Readers may kindly note that the following abbreviations have been used in the book: Forty-frst Report of the Law Commission of lIndia on the

41st Report

Criminal ProcedureCode,1898, Partl(1969). 37th Report

Thirty-seventh Report of the Law Commission of India onthe

Criminal ProcedureCode,1898 (1967). 14th Report

Statement of Objects and Reasons

.

Fourteenth Report of the Law Commission of India on Reform

ofJudiciA ad l ministratio(n1958), Statement of Objects and Reasons appended to the Criminal Procedure Code Bill, 1970 as introduced in the Rajya Sabha.

Notes on Clauses

Notes on Clauses appended to the Criminal Procedure Code

Bill, 1970asintroducedin theRajyaSabha. Joint Committee Report

Report of the Joint Committee on the Criminal Procedure Code

Bill,1970(1972), Reportof Expert Committee on Legal Aid

Report of the Expert Committee on Legal Aid-Processual Justice to the People (1973).

IPC

Penal Code, 1860.

I am thankful to all those who have helped me in the completion of this

book.

DR R.V. KELKar 4 August 1980

New Delhi

Contents

Table of Cases XXilI Section-wise Contents

LECTURE

I

LECTURE

2

Functionaries

LECTURE

3

Arrest

LECTURE

4

LECTUREs

Some Preliminary

LXIII

Considerations

Under the Code

1o

23

Search and Seizure

Investigation

46

57

LECTURE

6

Local Jurisdiction of the Courts and the Police

LECTURE

7

Cognizance of Offence and Commencement

1or

of Judicial Proceedings 11I LECTURE

8

Bail

135

LECTURE

9

Principal Features of Fair Trial

161

LECTURE Io

Types of Trials: Some Common Features

LECTURE II

Charge

LECTURE 12

Trial of Warrant Cases

174

195 208

LECTURE I3

Procedure for Trial of Summons Cases and Summary Trial 224

LECTURE 14

Disposal of Criminal Cases Without Full Trial

LECTURE I5

Judgment

LECTURE 16

Appeals

LECTURE 17

Reference, Revision and Transfer

LECTURE 18

Execution of Sentence and Orher Connected Matters

LECTURE 19

Preventive Measures and Security

LECTURE 20

Maintenance of Wives, Children and Parents

LECTURE 21

Juvenile Justice

LECTURE 22

Probation

Appendix

232

252 268

377

383

387

Subject Index

397

29

Proceedings

323

358

310

Detailed Contents

Table of Cases

XXIII LXIII

Section-wise Contents

..

I. SOMEPRELIMINARY CONSIDERATIONS. I. Object of criminalprocedure 2. Importance of criminal procedure 3. The extent and applicability of the Criminal

I

Procedure

Cod1e9,73 .. 4. Territorial divisions 5.

Classification of offences

6. Functionariesunder theCode

4

6

.......

7 Main segments of criminal procedure ... 2.

.

10

FUNCTIONARIEU SNDERTHE CODE..

I. Thepolice ..

II

2. Theprosecutors 3. Thedefence counsel..

3.

6

14

4. Thecourts .

5

5. Prison authorities and correctional services personnel

19

23

ARREST..

I. Meaningand purpose. 2. Decision toarrest 3. Arrest with a warrant... 4.

24 25

27

Arrest without a warrant

5. Arrest how made..

3I

6. After-arrest procedures...

33

7. Rightsofarrested

36

person..

8. Consequences of non-compliance

relatingto arrest.

with the provisions

***

''

**

4I

xVI LECTURES ON CRIMINAL PROCEDURE

4 SEARCH AND SEIZURE

..

46

.

I. Summons or written order

46

2. Search with a warrant

47

3S.earcwhithoua w t arrant

.

.

4. Generalprovisions relating tosearches 5. Consequencesof 6. Seizure

49

5I

irregularities or illegalities in a search

53

54

.

5.INVESTIGATION.

.

57

.

I. Meaningandpurpose

2P.olicw e,heintnovestigate 3. Duty to inform and assist the

S7 $8

.

60

police....

4.Informationtothe police..

6I

5. Procedureafter the recording of the FIR ....

64

6. Power to require attendance of witnesses

67

..

7. Power to interrogate witnesses and to record their 8.

.. . .... 68

statements Evidentiary value of statements made to the police

71

9. Power of Judicial Magistrate to record contessions and 70

statements .

** 86

1o. Maintenanceand use of "case diary". 11. Procedure when investigation cannot be completed

with2ihn 4ours...

.

87

12. Procedure to be followed on completion of investigation

13. Investigations and inquiries into the cause of unnatural

deaths,suicides, of death in police custody, etc..... 6.

LOCAL JURISDICTION OF THE cOURTS AND THE

96 IOI

POLICE

IS.om bca eosniscideration..s.

93

O

..

2. Speciaplrovisions providingforalternativveenues

.. 102

3. Special rule in cases of joinder of charges and joinder of Orrenders 4. Power of the State to order cases to be tried in different

Io5

sessions divisions S. High Court's power to decide in case of doubt, the place

ofenquiryortrial

.

I06

6. Magistrate's power to inquire into an offence committed

outsidehislocal jurisdiction..

I06

7. Power to inquire into or try offences committed outside

India

*

*'*

1o6

8. Consequences of failure to follow the rules regarding

localjurisdiction.

Io8

DETAILED CONTENTS XVII 7.

CoGNIZANCE OF OFFENCE AND COMMENCEMENT OF

III

JUDICIAL PROCEEDINGS

I. Cognizanceof offence.. 2.

II6

Limitations on the power to take cognizance of an offence

3. Scrutiny of the complaint

I2

4.Issueofprocess ..

128

S. Special summons in cases of petty offences.... 6. Supply to the accused person copies of statements,

130

documentsandpolice report. 7. CommitmentofcasetoSessions Court.

31

Consolidation of cases relating to the same offence

8.

8. BAIL

132

***** 32

.. .

I35

I. Circumstancesin whichreleaseon bail is mandatory.. 2.

137

Discretion in granting bail in cases of non-bailable

oftences.

I4I

I46

3. Anticipatory bail ....

4C . ancellatioo nfbail ....

I52

5. Powers of appellate court in respect

*

ofgrantingbail...

6. General provisions regarding bond of accused

andsureties 9. PRINCIPAL FEATURESOFFAIRTRIAL

2. Independenitm , partialancdompetenjtudges.. . 3. Parties to berepresentedby competent lawyers

....

S.Presumptionofinnocenceandburden of proof. 6. Rights ofaccusedpersonsat the trial...

7E . xpeditioustrial.. 8. Allpervasivceonceptof fair trial..... 1O. TYPES OF

TRlALS: SOME COMMON

**.

I6I

.

FEATURES

I. Languageof courts 2. Power of court to summon any material witnesses or to

examine persons present

..

155

I57

.....

I. Adversarysystem

4.Venueofthetrial

*****

I6I 162

I65

67

... 167

I68

170

I7I I74 75 I75

3. Power of court to order payment of expenses of

complainants and witnesses

4. Commissionsfor the examinationofwitnesses 5. Special rules of evidence

6. Court'spower to havelocal inspection

* ..

**' *T I77

I8I

xVIII

LECTURES ON CRIMINAL PROCEDURE

TYPES OF TRlALS: SOME COMMON FEATUREs

(Contd.)

7. Attendance of persons confined in prisons before criminal

courts.... .

I8T 182

8. Court's power and duty to examine the accused person..

9A.ccuspeedrsotnob co empetew ntitness.

. 184

10. Power of court to proceed against other persons appearing

tobeguiltyof offence..

185

II. ArgumentsO : raland written..

187

12. Proceedings to be held expeditiously,

and not to be

adjournedwithoutspecial reasons...

To7

13. Decision on evidence partly recorded by one judge or Magistrate and partly by another 14. Summary procedure to deal with certain cases of perjury

18 8

andcertainkinds ofcontemptof court...

I. CHARGE.. I. Form andcontentof charge..

95

189

I9

197

2. Alteration ofchargeandtheprocedure thereafter...

3.Basicruleregardincghargeandits trial 4. 5.

..

203

Withdrawal of remaining charges on conviction on one of

severalcharges 6.

199

Conviction for an offence not charged when such offence is included in offence charged

204

Applicability of provisions relating to joinder of charges to

caseswhere nochargeis tramed

.

204

7 Effect of omission to frame, or absence of, or error in

charge

.

12. TRIAL OF WARRANT CASES

13.

. 204 208

.

Part I-Trial beforeaSessionsCourt

209

Part I1-Trial of warrantcasesby Magistrates.

215

Casesinstituted on a police report..

216

Cases instituted otherwise than on a police report

219

Common provisions regarding conclusion of trial

22I

PROCEDURE FOR TRIAL OF SUMMONS CASES sUMMARY

TRIAL

..

Part I-Procedure for trial in asummoncsase

ParItI-Summary trials..

AND

.

224 224 228

DETAILED CONTENTS

14. DISPOSAL OF CRIMINAL CASES WITHOUT FULL TRlAL

232

I.Criminal proceedingsarebarred by limitation of time

232

236

2. "Autrefois acquit" and "autrefois convict"

.

3.Principleoisfsue-estoppel.

XIX

239

C4o .mpoundo i n tg f ences. . 5. Withdrawal from prosecution..

24O

.

6. Withdrawalofcomplaint .

241 243

7: Absence or non-appearance of complainant.

. 244

8. Abatement of proceedings on the death of the

accused..245

245

9. Power of court to stopproceedingsin certain cases.. Io. Conditionalpardon to anaccomplice

246

.252 252 252

I5. JUDGMENT I. Form andcontents

.

Languageandcontentsof judgment.. Judgmentinabridged forms.

2P.ost-convictiornders Section

253

455

.

254

360..

255

Noimprisonmentincaseofyoung offenders..

256

Specialdirective infavour ofnon-punitivemeasures

Judicid ailscretionisnentencing ...

D 3.ecisioa nstsopepcuihncishments. 4.

.

Precautionary and preventive orders

'***

***

5. Compensation and costs 6. Pronouncement of judgment

Z56

258 26I

262 264 268

I6. APPEALS

Part-Types ofappeals

269

Appeal from convictions

269 269

.

I. Noappealincertaincases .. 2.Appealstosuperior courts. Appeal against inadequacy of sentence

s

Appealagainstorder ofacquittal Part II-Procedure

27I 272

for dealing with an appeal and powers of

appellatecourt I. Petition ofappealand its presentation..

2. Hearingoa f ppealsin SessionC s ourts

S 3.ummdaisrymissoaaflppeals.. 4.

270

**.

****'''

.

.

Procedureinappealsnotdismissed summarily..

5. Powers ofappellate court to grant bail, etc. 6. Power of appellate court to obtainevidence

.

*'*'.

275 275

275

276 279

279 280

XX

LECTURES ON CRIMINAL PROCEDURE

APPEALS (Contd.)

7P.owersoafppellacteourtidnisposinogafppeals 8. Procedure where the judges of the High Court Bench are

equallydivided

.

281

285

* ******

9. Order of High Court on appeal to be certified to

lowercourt.

205

..

1O. Rules regarding judgment of subordinate appellate court

II. Finality ofjudgmentsand orders onappeal

..

287

12.Abatementof appeals.

..

I7. REFERENCE,REVISION AND TRANSFER

29I

Part I-Reterence to High Court

291

I. Reference on question of constitutional validity

2.Referenceonotherquestionof law ....

292

.

3. Post-reference procedure Part

II-Revision

286 286

292

92

. .

I. Power to call for and examine the record of the

lo2. w ovisruionirnretsp.ectoifnterlocutoroyrd.e.rs. ........229932 Nc oree 3. Only one revision petition

either to Sessions Court or the

High Court.

295

4. Statement of Metropolitan

Magistrate indicating grounds

oh fdiescision

. ..

..

...

5P . oweorcfourtorefvisiotno rdernquiry 6. SessionsJudge'spowers of revision

.

7. High Court'spowersof revision 8. Power of High Court to withdraw or transfercases 9. Order of revisional court to be certified to lower court Part

III-Transfer

of cases

.. 296 296 296

** 297 302 ...

302 302

I. Powers of the Supreme Court to transfer cases and appeals.

302

2. Powersof High Court to transfercasesand appeals..

304

3. Powers of the Sessions Judge to transfer cases and appeals.

306

I8. EXECUTION OF SENTENCE AND OTHER CONNECTED

MATTERS .

3IO

PIa-rEtxecutsio enrntences.

3

S I. entencoef death..

..

2. Sentenceof imprisonment for life or of

3

imprisonment...311

S3e.ntenochfene. . . 315 Part II-Suspension, remission and commutation ofsentences 317 I.Suspensionorremissionof sentences.....

317

713301 DETAILED CONTENTSXXI EXECUTION OF SENTENCE AND OTHER CONNECTED

MATTERS (Contd.) 2. Commutation ofsentence

319 319

3. Restriction onpowers ofremissionorcommutation 4.

Concurrent power of Central Government in case of

'* Central

deathsentences 5. State Government to act after consultation with

320

Governmenitncertaincases ....

320

I9. PREVENTIVE MEASURES AND SECURITY

PROCEEDINGS...

323

Part I-Preventive action of the police

323

.324

I. Preventionofcognizableoffences ....

323

2. Prevention of injury to public property 3.

.

Inspection of weights and measures

Part II-Securityproceedings I. Security for keeping the peace 2. Security for good behaviour ... 3. Preliminary procedure for initiating action under

. 5R.esuoltfheenquiry.

Sections I07-IIO 4. Enquiry as to truth ofintormation 6.

. Contents of bond and its commencement

.

7. Power to rejectsureties 8. Imprisonment in default of security

324

.

.

324 324 325

37 328 33I 33I .

332

332

9. Power to release persons imprisoned for failing to give

security

333

1o.Securityforunexpiredperiodofthe bond..

334

II. APpeals

334

Part IIl-Dispersal ofunlawful assemblies.. I. Dispersal of unlawful or potentially unlawful 2. Protection against prosecution for acts done for

as o s r emblies . Part IV-Removal of publicnuisance

*

335

assemblies..

335

dispersal

336

.

337

I. Conditional order for removal of nuisance and

. consequesnteiapls.. 2. Procedurewhereexistence of public right is denied 3. Procedurewhere heappearsto showcause

4. Locainlvestigatioa nndexperetvidence

337 34T

34T

...

342

5. Procedure on order being made absolute and consequences

diosfobedienc.e

....

6. Injunctionpending enquiry.

.

342 343

XXII LECTURES ON CRIMINAL PRoCEDURE PREVENTIVE MEASURES AND

SECURITY

PROCEEDINGS (Contd.) 7. Magistrate may prohibit

repetition or continuance of

publicnuisance.

343

Part V-Urgent casesofapprehended danger or nuisance

.

Part VI-Disputes as toimmovableproperty

I. Preventivemeasures in respect of land or water

343

347

disputes.

347

2. Attachment of property in dispute and appointment of receiver 3. Preventive measures in respect of disputes concerning right

350

ofuseoflandorwater

4. Local enquiry..

353

.

354

20. MAINTENANCE OFWIVEs, CHILDREN AND PARENTS. 358

'***''***

I. Persons entitled to claim maintenance 2. Personsfrom whom maintenancecan be claimed.

3E.ssentciaolnditionfsogrrantm ing aintenance 4. Jurisdictionof Magistrates.

5. Procedure.. 6.

Maintenance order

363

. 363

366 367

369

7. Enforcement of the order of

maintenance....

8. Alteration of allowance. 9. Cancellation of the orderfor maintenance cancelled.. 1o. Maintenance order to stand till vacated or II. Civil court to take note of maintenance order under Section I125

358

.

370

37I

372 373 373

2I. JUVENILEJUSTICE

377

22.PROBATION ...

383

Appendix. SubjectIndex..

387 397

Lecture

1

Some Preliminary Considerations

1.

OBJECT OF CRIMINAL PROCEDURE

The law of criminal procedure is intended to provide a mechanism for the enforcement of criminal law. Without proper procedural law, the substantive criminal law which defines offences and provides punishments for them, would be almost worthless. Because, in the absence of an enforcement machinery, the threat of punishment held out to the lawbreakers by the substantive criminal law would remain empty in practice. Empty threats do not deter, and without deterrent effect, the law of crimes

would have hardly any meaning or justification. If "thieves" and "murderers" are not detected, prosecuted, and punished, what is the use of meticulously defining the offences of "theft" and "murder" and prescribing "deterrent" punishments for them? Thus, the law of criminal procedure is meant to be complementary to criminal law and has been designed to ensure the process of its admin-

istration. In view of this objective, the law of criminal procedure creates the necessary machinery for the detection of crime, arrest of suspected criminals, collection of evidence, determination of guilt or innocence of the suspected person, and the imposition of proper punishment on the guilty person. The law of criminal procedure also aims at providing safeguard against possible harms and violation of human rights of innocent persons in its process of sifting criminals from non-criminals. It further attempts to strike a just balance between the need to give discretionary powers to the functionaries under the Code to make the investigative and adjudicatory processes strong and efective, and the need for controlling the probable misuse or abuse of these powers. It is, therefore, right to say, as the Supreme Court has said, that it is the procedure that spells much of the difference between the rule of law and the rule of

whim and caprice. I.

labal Ismail Sodawala v. State of Maharashtra, (1975) 3 SCC 140: 1974 SCC (Cri) 764, 770: 1974 Cri LJ 1291. See also, the discussions on the role of procedural law in Rani Kusum v. Kanchan Devi, (200s) 6 SCC 70s. The discussions are made in the context of Civil Procedure Code.

2

2.

[LECT

LECTURES ON CRIMINAL PROCEDURE

IMPORTANCE OF CRIMINAL PROCEDURE

The law of criminal procedure is significantly

important for three main

reasons:2

I. It is more constantly used and affects a greater number of persons than any other law. 2. The nature of its subject-matter is such that human values are involved in it to a greater degree than in other laws. 3. As the law of criminal procedure is complementary to the substantive criminal law, its failure would seriously affect the substantive

criminal law which in turn would considerably affect the pro tection that it gives to society. Therefore, it has been rightly said that too much expense, delay and uncertainty in applying the law of criminal procedure would render even the best of penal laws useless and oppressive. THE EXTENT AND APPLICABILITY OF THE CRIMINAL PROCEDURE CODE, 1973

Our law of criminal procedure is mainly contained in the Code of Criminal Procedure, 1973 (CrPC). The Code extends to the whole of India except the State of Jammu and Kashmir.3 Further, some of the provisions of the Code have not been made applicable at present to the State of Nagaland, and the tribal areas in Assam because of the pecu-

liar conditions prevailing there. Though the procedure to be followed in these areas is not required to be strictly in accordance with the provisions of the Code, yet it must satisfy the standard of fairness as is implicit in

Article21 oftheConstitution. The provisions ofthe Code are applicable in respect of everyinvestiga tion, enquiry or trial of any offence under the Penal Code, 186o (IPC)

or under any other law.

However, the rule is not unduly rigid. If the

exigencies of the subject-matter or of the local conditions require a special procedure to be followed in respect of certain offences, the Code makes room for such special law and procedure and generally gives it precedence over the normal procedure provided by the Code.7

The Code has beenpassed by Parliament; but as the subject of crimi-

nal procedure is included in the Concurrent List in the Seventh Schedule appended to the

Constitution,

a State Legislature may, in accordance

with the provisions of the Constiturion,

modify the provisions of the

Code. The modified provisions of the Code would then apply to that See, 37th Report, I-2. See, S. I.

Ibid.

.

7.

Sec, Zarzoliana v. Govt. of Mizoram, 1981 Cri LJ 1736, 1740 (Gau). See, S. 4. See, Ss. 4 and 5.

1

SOME PRELIMINARY CONSIDERATIONS

3

State. Thus, it would be seen that while the Code provides for a uniform criminal procedure applicable throughout India, Sections 1, 4, and 5 of the Code and the provisions of the Constitution of India make it sufficiently flexible to adjust itself to the special local needs and conditions. 4.

TERRITORIAL

DIVISIONS

It is always expedient to have suitable territorial units for the purposes of administration, whether judicial or otherwise. The size and the number of such units would depend upon the needs of the administration. The entire territory of India consists of States, and for the purposes of the Code every State shall either be a single sessions division or shall consist of sessions divisions. Every sessions division shall be either one

single district or shall consist of districts. Any district may be further divided into sub-divisions. The limits or the number of such sessions divisions,

districts, and sub-divisions of a district, may be altered by the

State Government after consultation with the High Court of that State." The special needs of the large cities like Bombay, Calcutta, Delhi, etc. in respect of the administration of criminal justice have been recognised. Therefore, each city with a population of one million or more has been constituted

as a separate

territorial

unit known as a

metropolitan

area.

In respect of any metropolitan area, the concerned State Government has the power to extend, reduce, or alter the limits of such area or to specify the cesser of such area. For the purposes of the Code, every metropolitan area is to be a separate sessions division and district.0

The following figure would give aneasy view ofthe territorial FIGURE 1.1 India (exduding the State of Jammu and Kashmin)

States

Sessions Divisions

Metropolitan Area (each such area is to be considered as a separate

sessions divislon and district)

Districts

Sessions Dlvislons

8.

See, S. 7.

9.

See, S. 8.

1o.

See, Proviso to S. 7(ı).

divisions.

4

LECTURES ON CRIMINAL

LECT

PROCEDURE

CLASSIFICATION OF OFFENCES

5.

For the purposes of the Code, all the offences have been classified into different categories. A general overview of these categories may be useful for better appreciation of the provisions of the Code. More detailed discussion on each of the categories would be taken up at an appropriate stage later. Firstly, all offences are divided into two categories-cognizable offences and non-cognizable offences. A "cognizable offence" means an offence for which a police officer may, in accordance with the First Schedule of the Code or under any other law, arrest without warrant;" and a "non-cognizable offence" means an offence for which a police officer has no authority to arrest without warrant.12 The Code has not given any guideline to determine whether a particular offence belongs to one category or the other. It all depends upon whether it is shown as

cognizable or non-cognizable in the First Schedule of the Code. That Schedule refers to all the offences under the IPC and puts them into cognizable and non-cognizable categories. The basis for this categorisation in the Schedule appears to rest on diverse considerations. However, it might be broadly stated that all serious offences are considered as cog-

nizable. Theseriousness of the offence is to be determined in relation to the maximum punishment provided for the offence. It may be relevant to note here that offences under the laws other than the IPC which are punishable with imprisonment for three years or more have been shown in the First Schedule as cognizable and those punishable with less than three years have been shown as non-cognizable. This rule is, of course,

subject to any rule to the contrary provided in that law. In the case of a cognizable

offence, a police

officer

can arrest the

accused person without any warrant or authority issued by a Magistrate, and can investigate into such a case without any orders or directions from the Magistrate.3 Further, the police officer is under a legal duty to exercise the above-said powers in respect of a cognizable offence.4 In

the case ofa cognizable offence, it appears to be the responsibility of the State (and the police) to bring the offender to justice. In the case of a non-cognizable offence, generally speaking, a police officer cannot arrest without a warrant,"

and further, such an officer has

neither the duty nor the power to investigate into such offence without II. 12.

See, S. 2(c). See, S. 2(/).

13. 14.

See, Ss. I56(1) and 157. See, S. 157 of the Code and Ss. 23 and 29 of the Police Act, 1861.

15.See,S. 20% however, according to S. 42 it a non-cognizable offence is committed in the presence of a police officer, and the person committing the offence refuses to give his name and address, the police officer can arrest him without warrant with a view to ascertain his real name and address.

sOME PRELIMINARY CONSIDERATIONS

11

S

the authority given by a Judicial Magistrate.6 Exceptions apart, the noncognizable offences are considered more in the nature of private wrongs and, therefore, the collection of evidence and the prosecution of the offender are left to the initiative and efforts of private citizens. However, if a Judicial Magistrate considers it desirable that a non-cognizable case should be investigated into by the police, he can order the police to do so. In that case, the police officer will have all the powers in respect of investigation (except the power to arrest without warrant) as he would have exercised if the case were a cognizable one." Where a case relates

to two or more offences of which at least one is cognizable, the case shall be treated as a cognizable one notwithstanding that the other offences

are non-cognizable.18 Secondly, offences are classified into "bailable" and "non-bailable" offences. According to Section 2(a), "bailable offence" means an offence which is shown as bailable in the First Schedule, or which is made

bailable by any other law; and "non-bailable offence" means any other offence. Here, again, the Code has not given any criterion to determine whether any particular offence is bailable or non-bailable. It all depends upon whether it has been shown as bailable or non-bailable in the First Schedule. It can, however, be stated as a general proposition that by and large serious ofences are considered as non-bailable and others as

bailable. It may also be noted here that according to the First Schedule, offences under laws other than the IPC which are punishable with imprisonment for three years or more, have been considered as "non-bailable" offences, and others which are punishable with less than three years' imprisonment are considered as "bailable" offences. Of course, this rule is subject to any rule to the contrary made in any such law. Ifa person accused of a bailable offence is arrested or detained without warrant, he has a right to be released on bail. This does not mean that if the offence is non-bailable, he shall never be released on bail; his release, on the contrary, is left to the discretion of the authorities concerned. Thirdly, the Code classifies all criminal cases into summons cases and warrant cases. A "warrant case" means a case relating to an ottence punishable with death, imprisonment for lite or imprisonment for a term exceeding two years;'9 and a "summons case" means a case relating to an offence, and not being a warrant case.2 Obviously, the basis of the classification is the seriousness of the offence to which the case relates.

The classification is useful to determine the type of trial procedure to be adopted in the case. The trial procedure prescribed for a warrant case is much more elaborate than that provided for a summons case. 16.

See, S. 155(2).

17.

Sub-ss. (2) and (;) of S. 15.

18.

See, S. 155(4).

19.

See, S. 2(x).

20.

See, S. 2(w).

6

[LECT.

LECTURES ON CRIMINAL PROCEDURE

The classification

into

"summons case" and

"warrant

case" also

assumes importance at the stage of issuing process to the accused person to decide as to whether a summons or a warrant is to be issued to him in the first instance. In a summons case, a summons shall be issued and in a warrant case, a warrant may be issued. 6.

FUNCTIONARIES UNDER THE CODE

The main functionaries exercising powers and discharging duties under the Code are: 1) police; 2) prosecutors; 3) defence counsel; 4) Magistrates and judges of higher courts; and 5) Prison Authorities and correctional services personnel. In the next lecture, the role, jurisdiction, powers and duties of each of these functionaries shall be discussed. 7.

MAIN SEGMENTS OF CRIMINAL PROCEDURE

While the general purpose of criminal procedure is to provide a mecha-

nism for the administration of criminal law, its core object is "to ensure for the accused a full and fair trial in accordance with the principles of natural justice" 22 Therefore, the trial procedure becomes the pivotal part of anyscheme of criminal procedure. Another important segment of criminal procedure is investigation which is the precursor of trial procedure. includes information as to the commission of any crime, detection and arrest of the suspected offender, and collection of evidence relating to the commission of the offence, which may consist of 1) the examination of various persons, and 2) the search of places and seizure of things and documents useful as evidence in the trial. Investigation also includes the process whereby the case is brought before the court for trial. The term investigation" has been given a somewhat limited meaning when it is defined as including all the proceedings for collection of evidence

conducted by a police oficer, or by any private person authorised by a Magistrate,23 Therefore, it would be considered more appropriate to

describe this segment of procedure as pre-trial procedures. When the trial is concluded and the accused is found guilty or innocent, the trial procedure in fact comes to an end. However, the Code

envisages, for sound reasons, the review of the decision of the trial by higher courts for correcting

court

errors, if any, in such a decision. In a

21.

See, S. 204.

22.

lgbal lsmail Sodawala v. State of Maharashtra, (1975) 3 SCC 140: 1974 SCC (Cri) 764, 770: 1974 Cri LJ 1291. See, S. 2(h). See, P.V., Vijayaragbavan v. CBI, (1984) Cri LJ 1277 (Ker); Pappa Rao v. State, 1985 Cri LJ 546 (Cal), wherein the Kerala and Calcutta High Courts respectively held that investigation includes formation of opinion as to the exist ence of case and drawing up of investigation report.

23.

The Delhi High Court in State v. Jai Bhaguwan, 1985 Cri LJ 932 (Del), opined that the investigation continues up to filing of charge-sheet.

1

SOME PRELIMINARY CONSIDERATIONS

7

sense, the review procedure is an extended trial procedure. However, it is expedient to treat the review procedures as a separate segment of

criminal procedure. The process of execution of decisions of the trial court and the review court is another important segment of criminal procedure. The Code has formulated certain rules for the determination of the jurisdiction of the police and the courts in respect of any offence under investigation or trial. As these rules are applicable both in pre-trial procedures and trial procedures, they might be considered as forming an intermediate segment between the said two procedures. The Code has made provisions for the release on bail of persons

under arrest or detention pending the pre-trial, trial, or review proceedings. These provisions are indeed quite important and it is expedient to study them together, though they do apply during pre-trial, trial and review proceedings. These are the main segments of criminal procedure. However, the Code also deals with 1) prevention of offences;2 2) maintenance of wives, children and parents;2" and 3) public nuisance.25 These provisions can be studied separately as they do not really pertain to the

mechanism for the administration of criminal law. These provisions are, however, helpful indirectly for achieving the main objective of the administration of criminal justice and, therefore, they may be given their due importance. The

following

table will show the above said main segments at a

glance TABLE 1.1 MalnsegmentsofCriminaPlrocedure 1.

Information regarding commission of offences; arrests; examination of

Pre-trial procedures

persons; search and seizure; and similar other aspects of investigative process.

Jurisdiction of police and courts in respect of

investigation and trial of

offences 3.

4.

ail Cognizance ofoffences; initiation of proceedings; atributes of fair trial

Trial procedure

and other general provisions regarding trals; charge: types oftrials;

judgment

5

Reviewprocedures

6.

Execution of the final decision

Reference,appealtevision;exerciseof inherent powersof HighCourt.

ofthe court

24. See, Ss. 106-124, 25.

See, Ss. 125-128.

26.

See, Ss. 133-143.

I29-132, 144-153.

8

LECTURES ON CRIMINAL PROCEDURE

LECT.

(Contd.) Other areas covered by the Code

(A)Prevention ofoffences

(8) Maintenanceofwivesc,hildrenandparents

( Pubnlicuisance

EXERCISES I. Try to ascertain (a) the distinction, if any, between 1) a Code, 2) a statute, and 3) an Act of legislature.

(b) the "Tribal Areas" as mentioned in the proviso to Section I(2)

of the Code. (See, Explanation to that proviso.)

) thereasons for excluding the State of Jammu and Kashmir from the operation

of the Code. (See, Article

370 of the

Constitution.) What could be the probable reasons for not applying the provisions of the Code (subject to some exceptions) to the State of Nagaland and to the tribal areas? (See, the observations of the Supreme Court in State of Nagaland v. Ratan Singh, AIR 1967 SC 212: 1967 Cri LJ 265.) 3. Section I(2) of the Code empowers the State Government concerned to apply, by notification, any of these provisions to the whole or part of the State of Nagaland or such tribal areas as the

case may be, with such supplemental, incidental or consequential modifications as might be specified in the notification. Would it not be appropriate to give this power to the concerned State Legislature instead of the concerned State Government?

Why have Chapters VII, X and XI of the Code been straightaway made applicable to the State of Nagaland and the tribal areas?

4. Consult the Criminal Court Manual (Minor Acts) and find out any three laws conferring special jurisdiction or power, or prescribing any special form of procedure which would not be affected by the provisions of the Code by virtue of its Sections 4 and 5.

Find out ifany amendments to the Code have been made by State Legislatures in the last five years. (See, Current Indian Stratutes; see, Haryana Act 20 of 1981, Maharashtra Act 6o of 1981, Punjab Act 22 of 1983, Tamil Nadu Act 13 of 1982.) 5. What could be the special needs of the large cities in respect of the administration of criminal justice? (See, 41st Report of the Law Commission of India, p. 17, paras. 2-II.) 6. Consider the implications of the existing classification of offences into "cognizable" and "non-cognizable", in relation to the

1

sOME PRELIMINARY cONSIDERATIONS

9

implementation of social reforms legislations. Consider also, the recent modifications in this classification as brought about by recent

enactments, like the Child Marriage Restraint (Amendment) Act, 1978; Criminal Law (Amendment) Act, 1983; and the Criminal Law (Second Amendment) Act, 1983. 7. Analyse the relevant provisions of the First Schedule and try to ascertain the probable considerations for the way the offences have been classified into "cognizable" and "non-cognizable" offences. [See, R.V. Kelkar's Criminal Procedure (sth Edn.) paras. 4.4 and

4:5, 33-37 8. Try to acquaint yourself with various reports of the Law Commission of India dealing with the revision of the Criminal

Procedure Code, 1898. (Se, 14th, asth, 3and, 33rd, 36th, 37th, 41st and 48th Reports of the Law Commission of India.) 9. Find out the period when the first Criminal Procedure Code was passed in India. What were the successive Codes passed thereafter? (See, the Codes of Criminal Procedure, 1861, 1872, 1882, 1898 and the present one of 1973.) 1O. Do you have any idea as to how many serious crimes are reported every year in India, in how many cases the prosecutions are launched, and in how many the accused persons are convicted?

(See, the latest edition of Crime in India.)

QUESTIONS I. What are the objects and functions of the law of criminal procedure? 2. In what way does the law of criminal procedure assume special

importance? 3. What is the territorial extent and scope of applicability of the Criminal Procedure Code, 1973? 4. What are the territorial divisions made for the purposes of the Code? 5. Critically examine the function of the classification of offences into "cognizable" and "non-cognizable*".

Lecture 2

Functionaries Under the Code

1.

THE POLICE

The

police force is an instrument for the prevention and detection of

crime, and is established and enrolled by every State Government under the Police Act, 1861 or under a State enactment replacing the Act of 1861.' In each State, the Inspector-General of Police is in charge of the

overall administration of the State police force. However, the administration of police in every district vests in the District Superintendent of Police under the general control and direction of the District Magistrate, who is usually the Collector of the district.2 The Code confers specific powers, for example, power to make arrest, search, etc., on the members of the police force who are enrolled as

police officers. The police officers who are in charge of police stations have been given wider powers, as they are required by the Code to play a pivotal role in the investigation and prevention of crime. But they do

not have powers to look into complaints which do not contain allegations of commission of cognizable offences" Police officers, superior in rank to an ofhcer in charge of a police

station, can exercise the same

powers throughout the local area to which they are appointed, as may be

exercised by such a station house officer within the limits of his station. Under Sections 177 and 178 of the Code, police has wide jurisdiction enabling them to inquire into a complaint which has already been filed

in another jurisdiction.

Examples of such State enactments are the Delhi Police Act, 1978; Bombay Police

Act, 1951; West Bengal Police Act, 1952. See, S. 4, Police Act, I861.

According to S. 2s), a police station means any post or place declaredgenerallyor

4

specially by the State Government as such a station. See, S. Masthan Sabeb v. P.S.R. Anjaneyulu, 2003 Cri LJ 248 (AP). See, S. 36.

Se, Satvinder Kaur v. State (Govt. of NCT of Delbi), (1999) 8 sCC 728.

FUNCTIONARIES UNDER THE CODE

2.

11

THE PROSECUTORS

A crime is a wrong not only against the individual victim but also against the State. Therefore, the State takes upon itself, at least in case of serious offences, the responsibility of prosecuting the accused persons. The Central Government and each State Government have power to

appoint prosecutors for conducting prosecutions and other criminal proceedings on their behalf in the High Court, Sessions Court or the Court of Magistrate. Table z.1 shows the types of prosecutors, the courts in which they are to work, qualifications, the authority by whom they are appointed, and other connected matters. TABLE 2.1

Public Prosecutors (Ss. 24.and 25)

Designation of

Qualifcations

Court

Others

authority

prosecutor

1.

Appointing

(0

(2)

3)

4

Public

High Court

Advocate in

State

Appointment to be made after

practice for

GOvernment

consultation with High Court.

seven years or

or Central

more

Government as

Prosecutor

the case may be 2.

Additional

do-

do-

-do-

d0

-d0-

-do

Public

Prosecutor 3.

Public

Sessions

Prosecutor for

Court

The advocate to be appointed by the State Government as Public

district (local

Prosecutor must be one of the

area)

advocates on the panel prepared by the District Magistrate in

consultation with theSessions Judge. However, in case of appointment by a State in which

regular cadre of prosecuting officers exists, the appointment shall normally be made from

among the persons constituting the cadre. 4.

Additional

d0

do

-do

do

Public Prosecutor for

district 5.

Special Public Prosecutor/s

7.

Any court

Advocate in

-do-

Appointment is to be made for

practice for 10

the purposes ofany case or class

years or more

of cases.

For details see, Ss. 24 and as.

12

[LECT

LECTURES ON CRIMINAL PROCEDURE

(Contd.) Designatlon of

Court

Qualifications

prosecutor 6.

Appointing

Others

authority

Assistant

Courts of

Any person

Public

Magistrates

other than a

Prosecutor/s

police officer

-do

For the purpose of any particular

case, if Assistant Public Prosecutor is not available, the

District Magistrate may appoint any other person to be the Assistant Public Prosecutor for that case. Such other person may be a police officer if o) he has not

taken part in the investigation of that offence, and b) he is not

below the rank of Inspector.

It has been specifically provided that in every trial before a Sessions Court, the prosecution shall be conducted by a Public Prosecutor.* However, no specific provision has been made in the Code in respect of the conduct

of prosecution in the Courts of Magistrates. According to the prevailing practice, in respect of cases initiated on police report, the prosecution is conducted by the Assistant Public Prosecutor (APP) and in cases initiated on a private complaint, the prosecution is either conducted

by the com-

plainant himself or by his duly authorised counsel. In such cases also, the

State can appoint prosecutors if the cause has public interest. The Public Prosecutor or the APP in charge of a case may appear and

plead without any written authority before any court in which that case is dealt with.° Further, it has been provided that the Advocate-General or Government Advocate or a Public Prosecutor or the APP shall have right to conduct prosecution and that in such a case, no

permission of

the Magistrate for conducting the prosecution would be necessary." The ettect of these provisions seems to be that the Public Prosecutor or the APP can intervene and assume the charge of the prosecution even in a case initiated on a private complaint.

The Code does not mention about the spirit in which the duties of the prosecutor are to be discharged. However, the principles in this regard are well settled. The Supreme Court has highlighted the importance and nature of the office of the Public Prosecutor in Srilekha Vidyarthi v. State of U.P12 It has been ruled that this is a public office of much importance, and that the present spoils system of appointments to the office of Public Prosecutors followed by the political parties should be done away with. Still, there have been cases where the prosecutor or the APP 8.

See, S. 225.

.

See, Mukul Dalal v. Union of India, (1988) 3 SCC 144: 1988 SCC (Cri) s66.

1o.

See, S. 3o1(1).

II.

See, S. 302(1).

12.

(1991) I SCC 1: 1991SCC (L&5) 742.Seealso, Vijay Shankar Mishra v. State of U.P., 1999 Cri LJ s2r (All).

2

FUNCTIONARIES UNDER THE CODE

13

appeared for the accused.13 This practice has rightly been disapproved by the courts.4 The appointment of a senior police officer as head of the prosecution agency in the State came to be severely criticised by the judiciary.3 Likewise, the practice of appointing police prosecutors as APP has also been disapproved by the Supreme Court.'6 The duty of the prosecutor in a criminal trial is not merely to secure conviction, but to place before the court whatever evidence is in his possession, whether it be in favour or against the accused, and to leave it to the court to decide upon all such evidence whether the accused was or was not guilty of the oftence alleged. It is not part of the prosecutor's duty to obtain convictions by hook or by crook. The definition of regular cadre of prosecuting officers has been

expanded by an inclusive explanation under Section 24(6). This has been given effect to, from 18 December 1978, with a view to include the officers who have been dealing with the work of prosecution, though they were not as such by the designation of prosecutors. Apparently some police officers who have been dealing with prosecution would now be included as prosecutors.

in 20o5 envisage the States The amendments to the Code effected to establish a Directorate of Prosecution consisting of a Director of Prosecution and Deputy Directors of Prosecutions. Advocates having 1o years' practice could be appointed as Directors or Deputy Directors.

They would function under the Home Department. Director of Prosecution shall be in charge of the Directorate. All the prosecutors working at the High Court would work directly under the Director. The prosecutors including Special Prosecutors functioning in the District Courts and APP would work under the Deputy Directors, who in turn would be subordinates to the Director. The powers and func-

tions of the Director including the territorial jurisdiction of the Deputy Directors may be specified by the State Government by notification. It is

pertinent to note that the Director and Deputy Directors are appointed

with the concurrence of the Chief Justice of the High Court. This scheme is a departure from the set-up originally envisaged under the Code of 1973. There is going to be active coordination and coopera-

tion between the police and the prosecution though, theoretically speaking, it may give the impression of making the independence of the Public Prosecutor suspicious. These provisions are not applicable to the Attorney General when he acts as Public Prosecutor." 13. 14.

Sec, Sunil Kumar Pel v, Phota Sheikh, (1984) 4 SCC 533: 1985 SCC (Cri) 18 and Kannappan v. Abbas, 1986 Cri LJ 1o22 (Mad). Tbid.

15. 16.

See, Krishan Singh Kundu v. State of Haryana, 1989 Cri LJ 1309 (P&