The Code of Criminal Procedure [Updated Tenth edition /] 9789351430469, 9351430464, 9789351430476, 9351430472, 9789351430483, 9351430480

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Date and Time: Thursday 9 March 2023 4:28:00 PM IST Job Number: 192141379

Documents (71) 1. The Code of Criminal Procedure, 1973 Client/Matter: -None2. [s 1] Short title, extent and commencement.— Client/Matter: -None3. [s 2] Definitions.— Client/Matter: -None4. [s 3] Construction of references.— Client/Matter: -None5. [s 4] Trial of offences under the Indian Penal Code and other laws.— Client/Matter: -None6. [s 5] Saving.— Client/Matter: -None7. [s 6] Classes of Criminal Courts.— Client/Matter: -None8. [s 7] Territorial divisions.— Client/Matter: -None9. [s 8] Metropolitan areas.— Client/Matter: -None10. [s 9] Court of Session.— Client/Matter: -None11. [s 10] Subordination of Assistant Sessions Judges.— Client/Matter: -None12. [s 11] Courts of Judicial Magistrates.— Client/Matter: -None13. [s 12] Chief Judicial Magistrate and Additional Chief Judicial Magistrate, etc.— Client/Matter: -None14. [s 13] Special Judicial Magistrates.— Client/Matter: -None15. [s 14] Local jurisdiction of Judicial Magistrates.— Client/Matter: -None16. [s 15] Subordination of Judicial Magistrates.— Client/Matter: -None17. [s 16] Courts of Metropolitan Magistrates.— Client/Matter: -None18. [s 17] Chief Metropolitan Magistrate and Additional Chief Metropolitan Magistrate.— Client/Matter: -None19. [s 18] Special Metropolitan Magistrates.— | About LexisNexis | Privacy Policy | Terms & Conditions | Copyright © 2023 LexisNexis

Client/Matter: -None20. [s 19] Subordination of Metropolitan Magistrates.— Client/Matter: -None21. [s 20] Executive Magistrates.— Client/Matter: -None22. [s 21] Special Executive Magistrates.— Client/Matter: -None23. [s 22] Local jurisdiction of Executive Magistrates.— Client/Matter: -None24. [s 23] Subordination of Executive Magistrates.— Client/Matter: -None25. [s 24 Public Prosecutors.— Client/Matter: -None26. [s 25] Assistant Public Prosecutors.— Client/Matter: -None27. [s 25-A Directorate of Prosecution.— Client/Matter: -None28. [s 26] Courts by which offences are triable.— Client/Matter: -None29. [s 27] Jurisdiction in the case of juveniles.— Client/Matter: -None30. [s 28] Sentences which High Courts and Sessions Judges may pass.— Client/Matter: -None31. [s 29] Sentences which Magistrates may pass.— Client/Matter: -None32. [s 30] Sentence of imprisonment in default of fine.— Client/Matter: -None33. [s 31] Sentence in cases of conviction of several offences at one trial.— Client/Matter: -None34. [s 32] Mode of conferring powers.— Client/Matter: -None35. [s 33] Powers of Officers appointed.— Client/Matter: -None36. [s 34] Withdrawal of powers.— Client/Matter: -None37. [s 35] Powers of Judges and Magistrates exercisable by their successors-in-office.— Client/Matter: -None38. [s 36] Powers of superior officers of police.— Client/Matter: -None39. [s 37] Public when to assist Magistrates and police.— Client/Matter: -None40. [s 38] Aid to person, other than police officer, executing warrant.— Client/Matter: -None41. [s 39] Public to give information of certain offences.—

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Client/Matter: -None42. [s 40] Duty of officers employed in connection with the affairs of a village to make certain report.— Client/Matter: -None43. [s 41] When police may arrest without warrant.— Client/Matter: -None44. [s 41A Notice of appearance before police officer.— Client/Matter: -None45. [s 41B] Procedure of arrest and duties of officer making arrest.— Client/Matter: -None46. [s 41C] Control room at districts.— Client/Matter: -None47. [s 41D] Right of arrested person to meet an advocate of his choice during interrogation.— Client/Matter: -None48. [s 42] Arrest on refusal to give name and residence.— Client/Matter: -None49. [s 43] Arrest by private person and procedure on such arrest.— Client/Matter: -None50. [s 44] Arrest by Magistrate.— Client/Matter: -None51. [s 45] Protection of members of the Armed Forces from arrest.— Client/Matter: -None52. [s 46] Arrest how made.— Client/Matter: -None53. [s 47] Search of place entered by person sought to be arrested.— Client/Matter: -None54. [s 48] Pursuit of offenders into other jurisdictions.— Client/Matter: -None55. [s 49] No unnecessary restraint.— Client/Matter: -None56. [s 50] Person arrested to be informed of grounds of arrest and of the right to bail.— Client/Matter: -None57. [s 50A Obligation of person making arrest to inform about the arrest, etc., to a nominated person.— Client/Matter: -None58. [s 51] Search of arrested person.— Client/Matter: -None59. [s 52] Power to seize offensive weapons.— Client/Matter: -None60. [s 53] Examination of accused by medical practitioner at the request of police officer.— Client/Matter: -None61. [s 53A Examination of person accused of rape by medical practitioner.— Client/Matter: -None62. [s 54 Examination of arrested person by medical officer.— Client/Matter: -None63. [s 54-A Identification of person arrested.—

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Client/Matter: -None64. [s 55] Procedure when police officer deputes subordinates to arrest without warrant.— Client/Matter: -None65. [s 55A Health and safety of arrested person.— Client/Matter: -None66. [s 56] Person arrested to be taken before Magistrate or officer in charge of police station.— Client/Matter: -None67. [s 57] Person arrested not to be detained more than twenty-four hours.— Client/Matter: -None68. [s 58] Police to report apprehensions.— Client/Matter: -None69. [s 59] Discharge of person apprehended.— Client/Matter: -None70. [s 60] Power, on escape, to pursue and retake.— Client/Matter: -None71. [s 60A Arrest to be made strictly according to the Code.— Client/Matter: -None-

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The Code of Criminal Procedure, 1973 Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973

The Code of Criminal Procedure, 1973 (Act No. 2 of 1974) [25th January 1974] An Act to consolidate and amend the law relating to Criminal Procedure. Be it enacted by Parliament in the Twenty-fourth Year of the Republic of India as follows:—

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[s 1] Short title, extent and commencement.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER I PRELIMINARY

The Code of Criminal Procedure, 1973 CHAPTER I PRELIMINARY [s 1] Short title, extent and commencement.— (1) (1) This Act may be called the Code of Criminal Procedure, 1973. (2) It extends to the whole of India except the State of Jammu and Kashmir: Provided that the provisions of this Code, other than those relating to Chapters VIII, X and XI thereof, shall not apply— (a) to the State of Nagaland, (b) to the tribal areas, but the concerned State Government may, by notification, apply such provisions or any of them 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 may be specified in the notification. Explanation.— In this section, “tribal areas” means the territories which immediately before the 21st day of January, 1972, were included in the tribal areas of Assam, as referred to in paragraph 20 of the Sixth Schedule to the Constitution, other than those within the local limits of the municipality of Shillong. (3) It shall come into force on the 1st day of April, 1974. [s 1.1] Changes.— This section corresponds to section 1 of the old Code, 1898. The code of, 1973, like the old one, also does not apply to the State of Jammu & Kashmir, because the power of Parliament to legislate for the State does not extend to criminal procedure and criminal trials under the Constitution (Application to Jammu and Kashmir) Order, 1950, under Article 370.

But, in regard to the State of Nagaland and the tribal areas of Assam (as specified in the Sixth Schedule of the Constitution), a clear-cut division has been made in the new Code between the provisions of chapters VIII, X and XI (i.e., those relating to security proceedings, maintenance of public order and tranquillity and preventive action of the police) on the one hand, which are intended to maintain law and order and which are also factually in force in a large measure in those areas, and the remaining provisions of the Code on the other, which are complicated provisions relating to procedure and will, therefore, replace certain simple rules of administration of criminal justice as they exist and are being satisfactorily worked out in relation to the simple and

Page 2 of 7 [s 1] Short title, extent and commencement.— unsophisticated people inhabiting these areas. Accordingly, it has been laid down that while the provisions of chapters VIII, X and XI shall apply, the remaining provisions of the Code shall not so apply unless the concerned State Government applies such provisions or any of them to the whole or part of the State of Nagaland or such tribal areas, as the case may be, by notification with such supplemental, incidental or consequential modifications as may be deemed necessary and specified in the notification.

Two kinds of saving provisions are contained in the extent clause of the old Code [see old section 1(2)]. The first saves the operation of any special or local law, or any special jurisdiction or power conferred, or any special form of procedure prescribed by any other law; and the second excepts three categories of officers as mentioned in clauses (a), (b) and (c) with a rider enabling the State Government to extend any provision of the Code to any of these excepted categories. This second saving provision has been wholly omitted in the new Code, thus making the new Code now uniformly applicable to all police forces, the Commissioners of Police in the towns of Calcutta, Madras and Bombay, the village headmen in the State of Madras and the village police officers in the State of Bombay. The first saving provision has been retained but has been separated from this section and made the subject matter of a new section 5. [s 1.2] Scope of the Code under section 1.— Adjective criminal law provides a machinery for the punishment of offenders against substantive criminal laws [Ganesh, 13 Bom 590, 498; Dular, 12 Cal 536], e.g., the Penal Code and other statutes. The Code of Criminal Procedure, 1973, though mainly an adjective or procedural law, deals with many other things: it deals with the constitution of criminal Courts, classifies them, defines their powers, lays down the procedure for criminal proceedings, inquiries or trials, prescribes the duties of the police in arresting offenders and investigating offences and also contains provisions for their prevention. Formerly, criminal procedures for Courts in the presidency-towns and in the mofussil were not the same. The Code of Criminal Procedure, 1973 (Act 10 of 1882) consolidated the earlier Acts and prescribed the uniform law for all Courts in India. It was superseded by Act 5 of 1898 and substantial changes were made by Act 18 of 1923 and Act 26 of 1955. There were also local Amendment Acts of several State Legislatures to bring about the separation of the judiciary from the executive. But, no comprehensive revision of the old Code of 1898 was attempted until the Central Law Commission was set up in 1955 and it undertook the systematic examination of the Code. The new Code is based on the recommendations of the Law Commission made in its comprehensive report for the revision of the Code, i.e., 41st Report presented in September 1969, which took into account its earlier reports dealing with specific matters. As has also been recommended by the Law Commission, the new Code replaces the old Code of 1898 (hereinafter referred to as the old Code) by an altogether new Code, because the changes made are both substantial and numerous and many years have elapsed since the Code was last revised and re-enacted, although it has been subjected to extensive amendments during this period on several occasions.

Taking of cognizance of offence by Sessions Court without committal of proceedings cannot be sustained and the fact that the proceedings were in State of Mizoram, i.e., Scheduled area, does not save the case. The case must be guided not only by the spirit of Code of Criminal Procedure, 1973, but by the letters of the Code, more so when the parties belong to non-scheduled tribe [Md. Abdul Ahad Choudhary v State of Mizoram, 2010 Cr LJ (NOC) 1300 (Gau) : 2010 (3) GLT 246 ]. [s 1.3] Construction of penal laws.— Penal statute must be strictly construed and no act should be penalised unless it is clearly within its letter [High Court Bar, AIR 1941 L 301; Kola, 8 C 214 Ganesh, 13 B 600; Dattaraya, 36 B 504]. Penal law must be construed with such strictness as to carefully guard the rights of the persons charged with the offence [K.S. Saini v UOI, AIR 1967 Pu 322 : 1967 Cr LJ 917 ]. The terms of penal enactments must be strictly construed in favour of the accused, wherever such construction can be reasonably justified [Bai Aisha, 53 B 149] and, in case of doubt, the benefit should go to the subject [Parmanand, AIR 1939 L 81 FB]. When the language is ambiguous or doubtful, the construction most favourable to the accused should be adopted [Alamgir, AIR 1959 SC 436 , 439 : 1959 Cr LJ 527 ; Grees, 10 C 1024; Imam, 10 All 105; Motilal, 46 B 61; Aung, AIR 1940 R 259].

A penal statute, even if it has to be strictly construed, must be so construed as not to defeat its purport [Surinder Singh v State of Haryana, AIR 2014 SC 817 : (2014) 4 SCC 129 : 2014 Cr LJ 561 (SC); Kisan Trimbak Kothula v State of Maharashtra, AIR 1977 SC 435 : (1977) 1 SCC 300 ; State of Maharashtra v Natwarlal Damodardas Soni, AIR 1980 SC 593 : (1980) 4 SCC 669 ].

Page 3 of 7 [s 1] Short title, extent and commencement.— The principle that a penal statute should be strictly construed is not of universal application. Whether the penal statute should be given strict interpretation or not will depend on facts of each case. Considerations of public health, preservation of nation’s wealth and public safety may weigh with the Court in a given case and persuade it not to give a narrow construction to a penal statute [Ritesh Sinha v State of UP, AIR 2013 SC 1132 : (2013) 2 SCC 357 : 2012 Cr LJ 1301 (SC) per Ranjana Desai J, case referred to a larger bench on a substantial question of law].

A section is to be interpreted by reading all of its parts together, and it is not permissible to omit any part thereof. The Court cannot proceed with the assumption that the Legislature, while enacting the Statute, has committed a mistake; it must proceed on the footing that the Legislature intended what it has said; even if there is some defect in the phraseology used by it in framing the statute, and it is not open to the Court to add and amend or, by construction, make up for the deficiencies that have been left in the Act [Rohitash Kumar v Om Prakash Sharma, AIR 2013 SC 30 : 2012 (11) Scale 30 ].

No word in a statute has to be construed as surplusage. No word can be rendered ineffective or purposeless. Courts are required to carry out the legislative intent fully and completely. While construing a provision, full effect is to be given to the language used therein, giving reference to the context and other provisions of the statute. By construction, a provision should not be reduced to a “dead letter” or “useless lumber” [Hardeep Singh v State of Punjab, 2014 (3) SCC 92 : 2014 (1) Supreme 132 (a five-judge bench decision); Sultana Begum v Prem Chand Jain, AIR 1997 SC 1006 : (1997) 1 SCC 373 ; State of Bihar v Bihar Distillery Ltd, AIR 1997 SC 1511 : (1997) 2 SCC 453 ; Institute of Chartered Accountants of India v Price Waterhouse, AIR 1998 SC 74 : (1997) 6 SCC 312 ; South Central Railway Employees Co-operative Credit Society Employees Union, Secundrabad v Registrar of Co-operative Societies, AIR 1998 SC 703 : 1998 (2) SCC 580 ].

If the words used in a criminal statute are reasonably capable of two constructions, the construction which is favourable to the accused should be preferred; but in construing the relevant words, it is necessary to have due regard to the context in which they have been used [Alamgir v The State of Bihar, AIR 1959 SC 436 : 1959 Cr LJ 527 ].

The Code of Criminal Procedure, 1973 is a compendium of law relating to criminal procedure. The provisions contained therein are required to be interpreted keeping in view the well recognized rule of construction that procedural prescriptions are meant for doing substantial justice. If violation of the procedural provision does not result in denial of fair hearing or causes prejudice to the parties, the same has to be treated as directory notwithstanding the use of word “shall” [Shivjee Singh v Nagendra Tiwary, AIR 2010 SC 2261 : (2010) 7 SCC 578 ]. [s 1.4] Plain meaning.— A section must be construed according to the plain meaning of the language used unless there is anything in it or in any other part of the statute that will either modify or qualify or alter the statutory language [Bank of England, 1891 AC 167 , referred to with approval in Narendra, 23 C 563 : 23 IA 18] and it is also well established that the intention of the Legislature is to be gathered from the language of the statute and not anything extraneous. The question is not what the Legislature meant, but what its language means, i.e., what the Act has said is what it meant [Sardar Singh v Relu, AIR 1944 L 266 FB; New Piece Goods Bazaar Co Ltd v CIT, Bombay, AIR 1950 SC 165 ; Murarrao, AIR 1943 B 26; Barisal, 38 Cal WN 459]. Words must be understood in their plain and ordinary sense [Becharam Chaudhuri v Purna Chandra Chatterji, 41 CLJ 456 : AIR 1925 C 845 FB]. Plain meaning of the language of the Code must be given effect to. In case of ambiguity, the meaning in accord with justice and convenience must be preferred [Babulal Chaukhani v King Emperor, AIR 1938 PC 130 , 133 : 65 IA 158]. When the meaning of words is plain, Court’s duty is not to make itself busy with supposed intentions [Pakala Narayana Swami v Emperor, AIR 1939 PC 47 , 51 : 66 IA 66]. [s 1.5] Aids to interpretation.— Preamble may be the most useful guide when there is doubt or ambiguity [Sital, 20 Cal WN 1158; Bhola, AIR 1942 FC 17 : 1942 FCR 17 ], but it cannot be used to cut down the scope and plain meaning of the provision [Anwar Ali Sarkar v State of WB, AIR 1952 C 150]. Resort should not be had to the pre-existing law [Narendra, 23 C 563 PC; Barendra, 28 Cal WN 170] unless there is reasonable doubt as to construction [Satis, 48 C 388;

Page 4 of 7 [s 1] Short title, extent and commencement.— Secy of S, AIR 1940 PC 105 : 67 IA 222 : 44 Cal WN 709; Nilmani, 48 C 556 FB]. Illustrations cannot modify the language of the section [Bengal Nagpur Railway v Ruttanji Ramji, AIR 1938 PC 67 : 65 IA 66 : 42 Cal WN 985]. An explanation cannot enlarge the provisions of the substantive section, any more than a proviso can be used to enlarge the provision to which it is a proviso [PK Chakravarti, 30 Cal WN 953, 957]. Normally, a proviso does not travel beyond the provision to which it is a proviso. It carves out an exception to the main provision to which it has been enacted as a proviso and to no other [Maulavi Hussein Haji Abraham Umarji v State of Gujarat, AIR 2004 SC 3946 : (2004) 6 SCC 672 : 2004 Cr LJ 3860 ; AN Sehgal v Raje Ram Sheoram, AIR 1991 SC 1406 : (1991) 2 SCR 198 ; Tribhovandas Haribhai Tamboli v Gujarat Revenue Tribunal, AIR 1991 SC 1538 : (1991) 3 SCC 442 ; Kerala State Housing Board v Ramapriya Hotels Pvt Ltd, 1994 (5) SCC 672 : (1994) 5 SCC 672 ].

The juxtaposition of a proviso or a sub-section is not a safe guide for its interpretation. If a reading of the proviso shows that it is intended as a proviso to the whole section or to a part thereof, it should be so read [Ammukutty Amma Ponnamma v Narayana Panikkar Neclakantan Nair, AIR 1967 Ker 216 : 1967 Cr LJ 1334 ]. Police regulations by the Government cannot alter or modify the Code [Md. Yakub, AIR 1938 A 534].

It has been held that the following cannot be referred to for construction: Proceedings of Legislature [AdmnGenl, 22 Cal WN 788 PC; Srichuran, 22 C 1017 FB; Krishna, AIR 1920 PC 56 : 47 IA 33, 42 : 43 M 550]; Statements of Objects and Reasons [Shanta, 52 A 619 FB; Midnapore Z Co, 47 Cal WN 733; Aswini Kumar Ghosh v Arabinda Bose, AIR 1952 SC 369 : 1953 SCJ 568 ]; Debate upon the Bill and speeches of members [Krishna, supra; Ratansi, 53 B 627; Bombay Co Ltd, 1952 SCR 1112 : AIR 1952 SC 366 ; Aswini, supra]; Marginal Notes [Balraj, 31 IA 132 : 8 Cal WN 699; D’Souza, AIR 1946 B 510]; but the present trend is to refer to marginal notes in proper cases [Iswari, 55 Cal WN 719; Ismail, AIR 1933 B 417 FB]; As to punctuation [See Pugh, AIR 1929 PC 69 : 56 IA 93 : 33 Cal WN 323; Aswini, supra].

A marginal note may not have any role to play where the statute is clear [Entertainment Network (India) Ltd v Super Cassette Industries Ltd, (2008) 13 SCC 30 ]. However, to clear any doubt or ambiguity in the interpretation of the provision and to discern the legislative intent, the heading of the section or the marginal note may be relied upon [Prakash Nath Khanna v CIT, 2004 AIR SCW 3692 : 2004 Cr LJ 3362 (3368) : (2004) 9 SCC 686 : (2004) 2 Crimes 181 (SC)].

While a marginal note may not be relevant for rendition of decisions in all types of cases, a reference to the marginal note would be permissible in law where the main provision is sought to be interpreted differently [Sarbjit Rick Singh v UOI, (2008) 2 SCC 417 (438) : (2008) 1 SCC (Cri) 449 ; Deewan Sufi v Rajendra Pd. Arderi, (2007) 10 SCC 528 : (2007) 1 Scale 32 ].

Heading in a particular section lends, though not normally a part of the statutory provision, assistance in interpreting the statutory intent since the “heading” always serves as a guide to depict the intention. It also makes it clear that the marginal note to a section cannot be referred to for the purpose of construing the section, but it can certainly be relied upon as indicating the drift of the section. It also shows that the heading/marginal notes, prima facie, furnish some clue as to the meaning and purpose of the section [Brihan Mumbai Electric Supply Transport Undertaking v Laqshya Media Private Ltd, AIR 2010 SC 5 : JT 2009 (14) SC 495 ].

It is equally well settled that “heading” or “title” prefixed to sections or group of sections may be taken as very broad and general indicators of the nature of the subject matter dealt with thereunder, but they do not control the meaning of the sections if the meaning is otherwise ascertainable by reading the section in proper perspective along with other provisions [Sarah Mathew v Institute Cardio Vascular Diseases, AIR 2014 SC 448 : (2014) 2 SCC 62 : 2014 Cr LJ 586 (607) (SC)].

The Statement of Objects and Reasons appended to the Bill should be ruled out as an aid to the construction of a statute. Statement of objects and reasons seeks only to explain what reasons induced the mover to introduce the Bill in the House and what objects he sought to achieve. But those objects and reasons may or may not

Page 5 of 7 [s 1] Short title, extent and commencement.— correspond to the objective which the majority of members had in view when they passed it into law. [Aswini Kumar Ghose v Arabinda Bose, AIR 1952 SC 369 ]. When a validity of a particular statute is brought into question, a limited reference, but not reliance, may be made to the State of Objects and Reasons. The Statement of Objects and Reasons may, therefore, be employed for the purposes of comprehending the factual background, the prior state of legal affairs, the surrounding circumstances in respect of the statute and the evil which the statute has sought to remedy [Bakhtawar Trust v MD Narayan, AIR 2003 SC 2236 : (2003) 5 SCC 298 ]. The speeches made by the members of the House in the course of the debate are not admissible as extrinsic aids to the interpretation of statutory provisions [State of Travancore-Cochin v Bombay Co Ltd, AIR 1952 SC 366 : (1953) I Mad LJ 1 (SC)].

Punctuation is a minor element in the construction of a statute, and very little attention is paid to it by English Courts. When a statute is carefully punctuated and there is doubt about its meaning, a weight should undoubtedly be given to the punctuation. Punctuation may have its uses in some cases, but it cannot certainly be regarded as a controlling element and cannot be allowed to control the plain meaning of a text [Aswini Kumar Ghose v Arabinda Bose, AIR 1952 SC 369 ]. Punctuation marks by themselves do not control the meaning of a statute when its meaning is otherwise obvious [Dadaji v Sukhdeobabu, AIR 1980 SC 150 ]. [s 1.6] Irregularity or disregard of mandatory provisions.— The Code is designed to further the ends of justice and not to frustrate them by the introduction of endless technicalities. If an accused has a full and fair opportunity of defending himself, then provided there is substantial compliance with the outward forms of law, mere mistake in procedure, mere inconsequential errors and omissions in the trial are regarded as venial by the Code and the trial is not vitiated unless the accused can show substantial prejudice [Slaney, 1955 (2) SCR 1140 : AIR 1956 SC 116 : 1956 SCJ 182 ; P Sirajuddin v Govt of Madras, AIR 1968 Mad 117 : 1968 Cr LJ 493 ]. Comply with mandatory provisions of a section unaccompanied by a failure of justice is not enough to vitiate the proceedings [Abdul Rahman, 31 Cal WN 271 : AIR 1927 PC 44 : 54 IA 96]. See further notes to section 465 post. [s 1.7] Violations of procedural provision.— If violations of a procedural provision does not result in denial of fair hearing or causes prejudice to the parties, the same has to be treated as directory notwithstanding the use of word “shall”. [Shivjee Singh v Nagendra Tewary, 2010 Cr LJ 3827 (3829) : AIR 2010 SC 2261 : (2010) 7 JT 271 ; Rattiram v State of MP through Inspector of Police, AIR 2012 SC 1485 : 2012 Cr LJ 1769 ]. [s 1.8] Discretionary power.— In many provisions of the Code, the Courts have been vested with a discretion. It is that part of the judicial function which is uncontrolled by fixed rules of law, but in which discretion has to be exercised in the particular circumstances of each case according to well-established principles of reason and justice and not fancifully or capriciously. Courts should be guided by the well-known observations of Lord Halsbury that “discretion” means according to the rules of reason and justice, not according to private opinions; according to law and not humour. It is to be not arbitrary, vague, and fanciful, but legal and regular [Sharpe v Wakefield, 1891 AC 179 ].

Attempts have sometimes been made by superior Courts to restrict the discretion conferred by the Legislature upon all Courts by formulating rules as to how the discretion is to be exercised; but it is neither legal nor desirable, nor are Courts bound by such decisions. It is a mistake to lay down rules indicating the particular grooves in which the discretion should run, for if the Act did not fetter the discretion of the Judge, why should the Court do so? [Gardner v Jay, 1855 LR 29 Ch. D 50, 58; Saunders v S, 1897 P 89, 95, per Lindley LJ; Mukhun, 1 CLR 283, per Garth CJ; Bankatram, 28 B 533, 566]. The absolute discretion conferred by the Act cannot be circumscribed by judicial decisions, but must be fairly exercised according to the exigencies of each case, the Court being astute to see that there is no abuse of the administration of criminal justice [An Attorney, 41 C 446, 457]. In this case, Sir Lawrence Jenkins CJ reaffirmed the freedom of the Courts and strongly expressed himself thus—

Not one jot or one title can be taken away from or added to the plain and express provisions of the Legislature by any decision of the Court; nor can this discretion vested by the section in the Court be crystallized or restricted by any series of cases. It remains free and untramelled, to be fairly exercised according to the exigencies of each case.

Page 6 of 7 [s 1] Short title, extent and commencement.— [s 1.9] Code how far exhaustive.— The essence of a Code is to be exhaustive on the matters in respect of which it declares the law [Gokul, 29 C 707 : 29 IA 196; Hukumchand, 33 C 927]. On points specifically dealt with by it, the Code must be deemed to be exhaustive [Narendra, 23 C 563 PC; Hansraj, AIR 1940 N 390; Rahim, 50 C 872; Gopal, 14 Mad LJ 655; Sohanlal, AIR 1960 Raj 44 ]. Where there is no specific provision, the criminal Court, no less than the Civil Court, has inherent power to mould the procedure to enable it to pass such orders as the ends of justice require [Pulin, 16 Cal WN 1105; Budhu, 44 C 816; Akhilbandhu, AIR 1938 C 258; Nagen, 61 C 498]. Section 482 (which saves the inherent powers of the High Court) is a legislative recognition of the inherent power which Courts always had (see notes to 482 post). In the absence of any provision on any particular matter, the Court may act on the principle that every procedure should be understood as permissible till it is prohibited by law [Hansraj, supra; Narsingh, 5 A 163, 172 remark of Mahmud J, in his dissenting judgment approved in New India Assurance Co Ltd v R Srinivasan, AIR 2000 SC 941 : 2000 (2) Scale 131 ].

The Code professes to deal exhaustively with the law of procedure and provides in the minutest detail the procedure to be followed in every matter pertaining to the general administration of criminal law. It must be borne in mind that criminal procedure is not devised on behalf of the prosecution or on behalf of the accused and anything that derogates from the proper claims of justice is inherently absurd [Kalesha, AIR 1931 M 779 : 33 Cr LJ 132]. The Code of Criminal Procedure, 1973 is an exhaustive Code providing a complete machinery to investigate and try cases, appeals against the judgments. It has provisions at each stage to correct errors, failures of justice and abuse of process under the supervision and superintendence of the High Court [Popular Muthiah v State represented by Inspector of Police, (2006) 7 SCC 296 : 2006 (6) Scale 417 ]. Where in the particular circumstances of a case there is a conflict between the law of procedure and the substantive rights of the parties, it is the duty of the Judge or the Court to ignore the procedure [Rupendra, 53 Cal WN 770, 778]. [s 1.10] Sub-section (2)—Extent.— Sub-section (2) provides that the Code of Criminal Procedure, 1973 extends to the whole of India except the State of Jammu and Kashmir. It also provides that the provisions of the Code of Criminal Procedure, other than those relating to chapters VIII, X and XI do not apply (a) to the State of Nagaland and (b) to the tribal areas, but the concerned State Government may, by notification, apply such provisions or any of them 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 may be specified in the notification.

According to the explanation appended to sub-section (2) “tribal areas” means the territories which immediately before 21 January 1972, were included in the tribal areas of Assam, as referred to in para 20 of the Sixth Schedule to the Constitution, other than those within the local limits of the municipality of Shillong.

To be consistent with the provisions of section 1 of the Code, section 18 of Indian Penal Code, 1860 defines “India” as “India” means the territory of India excluding the State of Jammu and Kashmir”, which means the territories to which Indian Penal Code, 1860 extends [KRKV Prasad, AIR 1980 AP 243 ]. As to “India” see section 3(28), General Clauses Act 10, 1897 and Article 1(3) of the Constitution, see also “Changes” above and section 2(f)]

Administration of criminal justice in the autonomous region of Garo Hills is governed by the Garo Hills Autonomous District (Administration of Justice) Rules, 1937 [see Jogendra, AIR 1962 As 62 ; Suraj Gupta v State of Meghalaya, 2010 Cr LJ 3457 ].

Offence under the Prevention of Corruption Act was registered with Nagaland, Delhi and other places mentioned as places of occurrence. It was held that the members of CBI had to investigate as if they were members of the police force of the State of Nagaland in accordance with the notification or rules in force in the State. But, the principles of Code of Criminal Procedure, 1973 would apply. Powers and jurisdiction have been conferred on the members of the CBI under DSPE Act only for the limited purpose of investigation. [Surender Singh Ahluwalia v Delhi SPF, (1991) Cr LJ 2583 (Del) by Arun Kumar J].

Page 7 of 7 [s 1] Short title, extent and commencement.— The provisions of the old CrPC, 1898 are still applicable to criminal trials in agency tracts in AP as Code of Criminal Procedure, 1973 has not been extended to these areas [Sevalam Suranna Dora v State of AP, 2004 Cr LJ 427 (430) (AP) : 2003 (2) Andh LD (Cr) 742 : 2004 (1) Cur CrR 268]. [s 1.11] Territorial waters.— Under the General Clauses Act, “India” is defined to mean all territories for the time being comprised in the territory of India as defined in the Constitution of India. Under the provisions of Article 297 of the Constitution of India, all lands, minerals and other things of value underlying the ocean within the territorial waters or the continental shelf or the exclusive economic zone of India vest in the Union. The Constitution of India does not itself define the terms “territorial waters”, “continental shelf”, and “exclusive economic zone”. Clause (3) of Article 297 states that their limits shall be such as may be specified by Parliament. In 1976, Parliament implemented the amendments to the Constitution of India by passing the Maritime Zones Act, 1976 [Aban Loyd Chiles Offshore Ltd v UOI, (2008) 11 SCC 439 : 2008 (6) Scale 128 ].

Insofar the Republic of India is concerned, the limit of the territorial waters was initially understood to be three nautical miles. It had been extended subsequently, up to six nautical miles by a Presidential proclamation dated 22 March 1952 and to twelve nautical miles by another proclamation dated 30 September 1967. By The Territorial Waters, Continental Shelf, Exclusive Economic Zone and Other Maritime Zones Act, 80 of 1976, it was statutorily fixed at 12 nautical miles. Section 3 of the Act stipulates that the sovereignty of India extends to the territorial waters, the limit of which is 12 nautical miles. Section 5 of the Territorial Waters Act defines the contiguous zone of India as an area beyond and adjacent to territorial waters to a distance of 24 nautical miles from the nearest point of the baseline. Section 7 of the Act defines the Exclusive economic zone of India as an area beyond and adjacent to territorial waters up to a limit of 200 nautical miles [Republic of Italy through Ambassador v UOI, (2013) 4 SCC 721 : 2013 (1) Scale 462 ].

The sovereignty of a State extends, beyond its land territory and its internal waters, to a belt of sea adjacent to its coast, described as the territorial sea. The sovereignty of a coastal State extends also to the air space over the territorial sea as well as to its bed and subsoil (Articles 1 and 2 of the Convention on the Territorial Sea and Contiguous Zone, 1958). The Code extends to the belt of sea, 12 nautical miles wide, adjacent to the coast (Presidential Proclamation, dated 30 September 1967). [s 1.12] Application of the Code to Police in the Presidency Towns.— The powers and duties of the police in the three Presidency-towns are contained in the Calcutta Police Act (4 of 1886), the Bombay Police Act (22 of 1951) and the Madras City Police Act (3 of 1888). Outside the presidencytowns there are also other local Acts in the various States in regard to the powers and duties of the Police. Several provisions of the Code of 1898 were extended to the Police in the presidency-towns by notifications by respective State Governments. The present Code has been made applicable to the Police in the Presidencytowns. The Presidency-towns of Bombay, Calcutta and Madras and the city of Ahmedabad have been declared to be Metropolitan area under the Code [See section 8 (2)]. [s 1.13] Availability of civil remedy, criminal case, if barred.— Merely because civil remedy is available, criminal case is not barred. The two remedies are not mutually exclusive but clearly co-extensive [Shakuntala Devi v State of UP, 2003 Cr LJ 687 2002 All LJ 2796 : (2002) 45 All Cr Cal 1091 : 2002 (3) All Cr R 2427 (All)]. End of Document

[s 2] Definitions.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER I PRELIMINARY

The Code of Criminal Procedure, 1973 CHAPTER I PRELIMINARY [s 2] Definitions.— In this Code, unless the context otherwise requires,— (a) “bailable offence” means an offence which is shown as bailable in the First Schedule, or which is made bailable by any other law for the time being in force; and “non-bailable offence” means any other offence; (b) “charge” includes any head of charge when the charge contains more heads than one; (c) “cognizable offence” means an offence for which, and “cognizable case” means a case in which, a police officer may, in accordance with the First Schedule or under any other law for the time being in force, arrest without warrant; (d) “complaint” means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report. Explanation.—A report made by a police officer in a case which discloses, after investigation, the commission of a non-cognizable offence shall be deemed to be a complaint; and the police officer by whom such report is made shall be deemed to be the complainant; (e) “High Court” means,— (i)

in relation to any State, the High Court for that State;

(ii) in relation to a Union Territory to which the jurisdiction of the High Court for a State has been extended by law, that High Court; (iii) in relation to any other Union territory, the highest Court of criminal appeal for that territory other than the Supreme Court of India; (f)

“India” means the territories to which this Code extends;

(g) “inquiry” means every inquiry, other than a trial, conducted under this Code by a Magistrate or Court; (h) “investigation” includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorised by a Magistrate in this behalf; (i)

“judicial proceeding” includes any proceeding in the course of which evidence is or may be legally taken on oath;

(j)

“local jurisdiction”, in relation to a Court or Magistrate, means the local area within which the Court or Magistrate may exercise all or any of its or his powers under this Code 1[and such local area may comprise the whole of the State, or any part of the State, as the State Government may, by notification, specify;]

Page 2 of 24 [s 2] Definitions.— (k) “metropolitan area” means the area declared, or deemed to be declared, under Section 8, to be a metropolitan area; (l)

“non-cognizable offence” means an offence for which, and “non-cognizable case” means a case in which, a police officer has no authority to arrest without warrant;

(m) “notification” means a notification published in the Official Gazette; (n) “offence” means any act or omission made punishable by any law for the time being in force and includes any act in respect of which a complaint may be made under Section 20 of the Cattle-trespass Act, 1871 (1 of 1871); (o) “officer-in-charge of a police station” includes, when the officer-in-charge of the police station is absent from the station-house or unable from illness or other cause to perform his duties, the police officer present at the station-house who is next in rank to such officer and is above the rank of constable or, when the State Government so directs, any other police officer so present; (p) “place” includes a house, building, tent, vehicle and vessel; (q) “pleader”, when used with reference to any proceeding in any Court, means a person authorised by or under any law for the time being in force, to practise in such Court, and includes any other person appointed with the permission of the Court to act in such proceeding; (r)

“police report” means a report forwarded by a police officer to a Magistrate under sub-section (2) of Section 173;

(s) “police station” means any post or place declared generally or specially by the State Government, to be a police station, and includes any local area specified by the State Government in this behalf; (t)

“prescribed” means prescribed by rules made under this Code;

(u) “Public Prosecutor” means any person appointed under Section 24 and includes any person acting under the directions of a Public Prosecutor; (v) “sub-division” means a sub-division of a district; (w) “summons-case” means a case relating to an offence, and not being a warrant-case; 2[(wa) “victim” means a person who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged and the expression “victim” includes his or her guardian or legal heir;] (x) “warrant-case” means a case relating to an offence punishable with death, imprisonment for life or imprisonment for a term exceeding two years; (y) words and expressions used herein and not defined but defined in the Indian Penal Code (45 of 1860) have the meanings respectively assigned to them in that Code. [s 2.1] STATE AMENDMENT IN SECTION 2 Arunachal Pradesh, Mizoram & Nagaland.—Sections 2, 3 with modifications, 5, 20 to 23 : 373 and chapter V so far as it relates to the arrest of persons specified in sections 109 and 110, applied to Nagaland with effect from 1 April 1974.—Nagaland Gaz 19 June 1975, Ext No. 15. Same provisions also extended to Arunachal Pradesh and Mizoram by S O 184(E) with effect from 1 April 1974—Gaz. of India, 20 March 1974 Pt II, section 3(iii), Ext, P 421. section 428 applied to Nagaland with immediate effect—Nagaland Gaz., 24 April 1974, Ext No 5. COMMENTS [s 2.2] Changes.— This section contains definitions and it corresponds to old section 4. The changes made are as follows :—

(1) Firstly, certain existing definitions have been omitted as they are now unnecessary, namely, (a) Advocate General, (b) clerk of the State, (c) Commissioner of Police. (2) Secondly, some existing definitions have been modified, namely :

Page 3 of 24 [s 2] Definitions.—

(a) Complaint.—Because of the conflicting decisions and uncertainty in regard to the definition of complaint in the old Code [see old section 4(1) (h)] and the connected provisions (see old sections 173, 190, 207A and 251A) thereof, the present revised definition has been made to make it clear that the report made by a police officer on an authorised investigation of a non-cognizable offence is a “complaint”; with an explanation added to clarify further that the report will be deemed to be a complaint only if the offence is disclosed after investigation by the police officer and that in such a case the police officer who makes the report shall be deemed to be a complainant, (see also the definition of police report [section 2(r)] as has been added as consequentially necessary because of the revised definition of complaint). (b) High Court.—Since for every State there is a High Court under the Constitution which is the highest Court of criminal appeal other than the Supreme Court and since in regard to the Union territories the position is that the jurisdiction of a State High Court has been extended by Parliament by law to some of them and in others, a High Court or a Judicial Commissioner’s Court established by law is the highest Court of criminal appeal, the definition of High Court has become completely out of date and has been revised accordingly. (c) “Non-cognizable offence”.—The words “within or without a Presidency-town” have been omitted as unnecessary and it has been redrafted to emphasise that a police officer has no authority to arrest without warrant in a non-cognizable case, as these specific words have been substituted for words “may not arrest without warrant” in revised definition. (d) Place.—To remove the lacuna in the old definition as has been revealed in the Supreme Court decision in Bhagwanbhai Dulabhai Jadhav v State of Maharashtra, 1963, (3) SCR 386, 392 : 1963 (2) Cr LJ 694, this revised definition has been made in order to expressly include “vehicle” so that powers of search under various sections of the Code which authorise searches of place also authorise searches of motor vehicles. (e) Pleader.—The old definition has only been simplified by omitting the unnecessary enumeration of the various classes of practitioners, as since the promulgation of Advocates Act, 1961 there is now one class of legal practitioners called Advocates. (f)

Warrant case.—The definition has been amended to secure that offences punishable with imprisonment for a term not exceeding two years (instead of upto one year as under the old Code) can be tried by the summons case procedure resulting in greater expedition in the disposal of a large number of cases.

(3) Thirdly, some definitions have been added, namely:

(a) Metropolitan area.—Though Presidencies have disappeared from the political map of India long ago, the system of Presidency Magistrates has been found to be useful and retained in respect of big cities; but Presidency Magistrates have been designated as Metropolitan Magistrates and presidency-towns as Metropolitan areas in the new Code. This definition has thus been necessary and added enabling also the State Government to extend this system of Metropolitan Magistrates to other big cities within the State where the population is not less than one million (to be called Metropolitan area) by means of a notification [see sections 8, 16, 19]. (b) “Police report”.—In view of the revised definition of complaint (see “complaint”, supra) this clause defining “police report” meaning specifically a report forwarded to a Magistrate under section 173(2) has become consequentially necessary and added.

(4) Fourthly, first part of sub-section (2) of section 4 in the old Code stating words which refer to acts done

Page 4 of 24 [s 2] Definitions.— extend also to illegal omissions have been omitted as superfluous in view of section 3(2) of the General Clauses Act, 1897, while the second part of the sub-section has been made the subject matter of new clause (y) under the revised section 2. [s 2.3] 1978 Amendment.— In clause (j) the words “and such local area.... by notification, specify” have been added at the end to empower the State Government to define the local jurisdiction as extending to the whole of the State or to any part thereof in the case of Special Courts or Special Judicial Magistrates, where necessary. [s 2.3.1] 2008 Amendment.— Clause (wa) has been introduced by the CrPC (Amendment) Act, 2008 providing the definition of the term “victim”.

(a) “Bailable Offence”.—Bailable offence is an offence which is either shown as bailable in the First Schedule to the Code or which is made bailable by any other law for the time being in force. As a general rule all noncognizable offences are bailable, except those which relate to grave offences which are likely to affect the safety and security of the nation or lead to a consequence which cannot be revoked [Om Prakash v UOI, (2011) 14 SCC 1 : AIR 2012 SC 545 : 2012 Cr LJ 779]. The Scheme of the First Schedule to the Code of Criminal Procedure, 1973 shows that there are offences under the Indian Penal Code which are cognizable and nonbailable, cognizable and bailable, non-cognizable but non-bailable and non-cognizable and bailable. The question whether a particular offence is bailable or not does not depend on whether the offence is cognizable or non-cognizable [Biju v State of Kerala, 2009 (4) Ker LT 710].

In a bailable offence, bail may be asked for as a matter of right (section 436). By non-bailable it is not meant that in the case of non-bailable offences no bail can ever be taken. The Court has a discretion to grant bail even in non-bailable offences, but in certain contingencies bail will not be granted in non-bailable offences (see notes to section 437). In the legislative history for the purposes of bail, the term “bailable” and “non-bailable” are mostly used to formally distinguish one of the two classes of cases, viz “bailable” offences in which bail may be claimed as a right in every case whereas the question of grant of bail in non-bailable offences to such a person is left by the legislature in the Court’s discretion to be exercised on a consideration of the totality of the facts and circumstances of a given case. The discretion has, of course, to be a judicial one informed by tradition methodized by analogy, disciplined by system and sub-ordinated to the primordial necessity of order in social life [Vikas v State of Rajasthan, (2014) 3 SCC 321 : 2014 Cr LJ 183].

Bailable and non-bailable offences are not to be confused with bailable and non-bailable warrants, although the latter terms are not used in the Code. In appropriate cases, a non-bailable warrant may be issued for bailable offences. The matter is entirely discretionary, depending on the circumstances of each case. (See section 87 post and notes).

(b) “Charge”.—Known in English law as indictment, is a written formulation of a specific accusation made with certainty and not limited to the offence named in the complaint [Jagat, 26 C 786] made against one who is entitled to know its nature at the very earliest stage [Reilly, 28 C 434, 437; Waroo, AIR 1948 SC 40, 48]. Charge is necessary in warrant cases (chapter 19) and in trials before the Sessions’ Court (chapter XVIII). No formal charge is required in summons cases, a statement of the substance of the accusation being sufficient (chapter XX; section 251). In cases tried summarily, no charge need be framed (section 262). Form of charge (sections 211– 213 : Schedule II, Form 32); Errors in charge (sections 215, 464); Alteration or addition to charge (Sections 216, 217); withdrawal of charge (Sections 224, 321); Joinder of charges (Sections 218–221); Conviction for offence not charged (Sections 221, 222); Previous convictions in charge [(Sections 211(7), 248(3), 236, 298, 356: see Sections 43, 54, Evidence Act)].

A charge is not an accusation made or information given in abstract, but an accusation made against a person in respect of an act committed or omitted in violation of penal law forbidding or commanding it. In other words, it is an accusation made against a person in respect of an offence alleged to have been committed by him [Esher Singh v State of AP, 2004 Cr LJ 5021 : AIR 2004 SC 3030 : 2004 (3) Crimes 38 : 2004 (3) Scale 267].

Page 5 of 24 [s 2] Definitions.— (c)”Cognizable offence”.—Offences are divided into cognizable and non-cognizable, but in matters of procedure relating to them, the Code speaks of warrant cases and summons cases [Raghavalu, (1918) ILR41 M 727, 730]. The First Schedule to Code of Criminal Procedure, 1973 in Pt-I, thereof classifies offences under the Indian Penal Code for purposes of determining whether or not a particular offence is cognizable or noncognizable and bailable or non-bailable [Ramesh Kumar Soni v State of Madhya Pradesh, AIR 2013 SC 1896 : (2013) 14 SCC 696 : 2013 CriLJ 1738]. For instances of non-cognizable offences, [see Schedule 1]. Pt-II of the First Schedule to Code of Criminal Procedure, 1973 deals with classification of offences against other laws, which would include offences under laws such as FERA [Kamlesh Kumar v State of Jharkhand, 2014 CriLJ 22 : 2013 (4) RCR(Criminal) 754]. Offence under section 7, Essential Commodities Act, 1955 being punishable with three years’ imprisonment, is cognizable [A.K. Jain v UOI, AIR 1970 SC 267 : (1970) 1 SCJ 233 : 1970 Cr LJ 367 : (1969) 2 SCC 340]. The offence under section 506 of the Indian Penal Code, 1860 is not non-cognizable offence. The provisions of section 2(d) of Code of Criminal Procedure, 1973 do not apply in the instant case. [Parveen Kumar v State of UP, 2011 Cr LJ 3689 (3691) (All) : 2011 (5) ADJ 418].

The offence punishable under section 185 of the Motor Vehicles Act cannot be said to be a “cognizable” offence as the power conferred on a police officer to arrest a person who has committed an offence punishable under section 185 of the Motor Vehicles Act, is not an unqualified power, and is conditioned by two requirements: (a) That such offence must have been committed in the presence of such police officers; (b) That such police officer, at that time, must be in uniform [Sandeep Indravadan Sagar v State of Maharashtra, 2013 (1) Bom CR (Cri) 487 : 2013 Cr LJ 1147 (Bom)].

A “police officer” does not mean “any and every police officer” but certain police officers vested with the power to arrest without warrant [Deodhar, 27 C 144; Abasbhai, 50 B 344 : AIR 1926 B 195; Nagarmal, 1951 N 338; Delhi Administration v Parkash Chand, AIR 1967 Del 151 : 1967 Cr LJ 1630]. Offences for which special authority to arrest is given to “special officers are not cognizable offences” [Haji Md., AIR 1942 SC 106 : 1942 K 94]. In a non-cognizable offence the police have no authority to investigate under section 155 without the order of a Magistrate [Bahabal, 24 C 691]. Where the information discloses a cognizable as well as a non-cognizable offence the police officer is not debarred from investigating any non-cognizable offence which may arise out of the same fact and including it in the charge sheet [Pravin Chandra Mody v State of AP, AIR 1965 SC 1185 : 1965 (2) Cr LJ 250].

The words “under any law for the time being in force” are wide enough to include an express or implied provision [Ismail, AIR 1930 B 39; see Maganlal, AIR 1934 N 71].

(d) “Complaint”.—See “Changes” above. The term appears in several sections (sections 190, 195, 198, 199, 200, 201, 202, 203, 249, 250, 257 etc.) and its meaning has been the subject of many decisions. The definition of the term “complaint” under section 2(d) of the Code begins with the words “unless otherwise requires”. Where a definition or expression, is preceded by the words “unless the context otherwise requires”, the said definition set out in the section is to be applied and given effect to but this rule which is the normal rule may be departed from if there be something in the context to show that the definition could not be applied [KV Muthu v Angamuthu Ammal, AIR 1997 SC 628]. Basis the provisions of law, there is nothing to hold that the term “complaint” used in section 198(1), Code of Criminal Procedure, 1973 has been used in the ordinary sense of the term in its literal meaning only and not in legal parlance as defined in section 2(d), Code of Criminal Procedure, 1973 [Anil Kumar v State of Kerala, 2013 (2) KHC 345: 2013 (2) Ker LT 431: 2013 (2) KLJ 602]. Section 198(1), Code of Criminal Procedure, 1973 clearly lays down that complaint should be made by the aggrieved person to the Magistrate, who shall follow the procedure laid down in section 200, Code of Criminal Procedure, 1973 onward and it does not include a police report. No doubt the Explanation to section 2(d) “a report by police officer which discloses a non-cognizable offence shall be deemed to be a complaint”, but this explanation is not applicable in cases under chapter XX of the Indian Penal Code, 1860. Therefore, cognizance of offence of bigamy taken on the basis of police report is improper [Suraj Lal Jaiswal v State of UP, 2006 Cr LJ 3323 (All) : 2006 (4) All LJ 605 : 2006 (2) All CrC 513]. In the considered opinion of the Allahabad High Court, under section 198 of the Code the word “complaint” has been used in the ordinary sense of the terms, i.e. the expression of grief, statement of injury suffered, statement of injury or grievance. Under section 198 of the Code the word “complaint” does not connote the meaning assigned to it under section 2(d) and has to be read

Page 6 of 24 [s 2] Definitions.— subject to the qualifying clause, “in this Code unless the context otherwise required”, occurring in section 2(d) [Mahendra Kumar Jain v State of UP, 1988 Cr LJ 544 (All) : 1988 ACrR 40].

The requisites of a legal complaint are: it must be—(1) an allegation (oral or written) [Bhimappa Bassappa Bhu Sannavar v Laxman Shivarayappa Samagouda, AIR 1970 SC 1153 : 1970 Cr LJ 1132 : (1970) 1 SCC 665] that some person (known or unknown [Sevantilal S Shah v State of Gujarat, AIR 1969 Guj 14 : 1969 Cr LJ 63] has committed an offence; (2) made to a Magistrate, and (3) with the object that he should take action under the law; but a complaint does not include a police report, i.e., a report forwarded by a police officer to a Magistrate under section 173(2), as the expression has been defined in section 2(r). Charge-sheet submitted by the police in respect of a cognizable offence cannot be held to be a complaint [Surajmani Srimali v State of Orissa, 1980 Cr LJ 363 (Ori) : (1979) 48 Cut LT 625]. In content, a criminal complaint is similar to the plaint in a civil suit. While all the facts need not be given [Chidambaram, 32 M 3], the facts prima facie constituting the offence must be set out in the complaint clearly and accurately [Durga, 27 C 485; Pulin, 16 Cal WN 1105; Naurati, 6 L 375; Jagat, 26 C 786]. The definition, however, does not require any statement of facts beyond an allegation that some person has committed an offence, but when that definition is read into section 190(1)(a), it is clear that before he takes cognizance a Magistrate must have before him an allegation of facts constituting the offence [Bhimappa Bassappa Bhu Sannavar v Laxman Shivarayappa Samauda, AIR 1970 SC 1153 : 1970 Cr LJ 1132 : (1970) 1 SCC 665; Sukumar, 22 Cr LJ 455 : 25 Cal WN 357].

Second Complaint.—Second complaint may be maintainable under exceptional circumstances [Pramatha Nath Talukdar v Sarob Ranjan, AIR 1962 SC 876 : 1962 Supp (2) SCR 297; see also Re, Alum Molla, 2014 Cr LJ 742 (Cal)].

The law does not prohibit the filing or entertaining of the second complaint even on the same facts provided the earlier complaint has been decided on the basis of insufficient material or the order has been passed without understanding the nature of the complaint or the complete facts could not be placed before the Court or where the complainant came to know certain facts after disposal of the first complaint which could have tilted the balance in his favour. However, the second complaint would not be maintainable wherein the earlier complaint has been disposed of on full consideration of the case of the complainant on merit [Shiv Shankar Singh v State of Bihar, 2012 (1) SCC 130 : 2011 (13) Scale 75].

An order of dismissal under section 203 of the Code of Criminal Procedure, 1973, however, is no bar to the entertainment of a second complaint on the same facts but it can be entertained only in exceptional circumstances i.e., (a) where the previous order was passed on an incomplete record (b) or on a misunderstanding of the nature of the complaint (c) or the order which was passed was manifestly absurd, unjust or foolish or (d) where new facts which could not, with reasonable diligence, have been brought on the record in the previous proceedings [Poonam Chand Jain v Fazru, AIR 2010 SC 659 : (2010) 2 SCC 631 : 2010 Cr LJ 1423 (SC) after considering its earlier judgments in Pramatha Nath Talukdar v Saroj Ranjan Sarkar, AIR 1962 SC 876 : 1962 Supp (2) SCR 297 : 1962 (1) Cr LJ 770; Jatinder Singh v Ranjit Kaur, AIR 2001 SC 784 : 2001 (2) SCC 570; Mahesh Chand v B. Janardhan Reddy, AIR 2003 SC 702 : 2003 (1) SCC 734 : 2003 Cr LJ 866; Poonam Chand v Fazru, AIR 2005 SC 38 : 2005 (1) Ker LT SN 9 : 2004 (13) SCC 269 : 2005].

The word “complaint” has a wide meaning since it includes even oral allegations. Therefore, no format is prescribed in which complaint must be made. There has to be an allegation which prima facie discloses the commission of a cognizable offence with necessary facts [Panchabhai Popotbhai Burani v State of Maharashtra, 2010 Cr LJ 2723 (2742) : (2010) 112 Bom LR 427 : (2010) 1 Mh LJ 421 (Bom); Bhimappa Bassappa Bhu Sannavar v Laxman Shivarayappa Samagouda, AIR 1970 SC 1153 : 1970 Cr LJ 1132 : (1970) 1 SCC 665; Narendra Prakash v State of Rajasthan, 2013 (3) Crimes 483 (486) (Raj)]. It is not obligatory for the complainant to specify the offence in his complaint [Anil Kumar v State of Kerala, 2012 Ker LT 360 (Ker)]. Document only containing the name of a person without any allegation about commission of offence by him is not a valid complaint. Mention of allegation of commission of offence in an enclosure is also not sufficient [Sardarilal v State of Punjab, (1983) Cr LJ 732 : (1983) 10 CrLT 188 : 1983 (1) FAC 201 : 1983 FAJ 362 P&H].

Page 7 of 24 [s 2] Definitions.— After investigation, if police report discloses non-cognizable offence, then such report would be treated as complaint [Brahamdeo Sah v State of Bihar, 2010 Cr LJ 2907 (2911) (Pat)].

The charge-sheet submitted by the police in a non-cognizable offence shall be treated to be a complaint and the procedure prescribed for hearing of complaint case shall be applicable to that case [Chand v State of UP, 2010 Cr LJ 2275 (2276) (All)].

If such type of allegation had been made in the “complaint” by the complainant that some words were pronounced by the accused but those words were neither recorded in F.I.R. nor in dying declaration, only account of this F.I.R. could not be regarded as afterthought [SA Shajahan v Kahdar Beg, 1995 Cr LJ 1282 (Madras)].

The complaint of dishonour of cheque was filed before of 15 days from the date on which notice was served on drawer/accused. The Apex Court held it to be no complaint. Therefore, no cognizance can be taken on the basis of this complaint. The fact that on the date of consideration of complaint or taking cognizance thereof the period of 15 days were elapsed, is not a ground to take cognizance of complaint. [Yogendra Pratap Singh v Savitri Pandey, AIR 2015 SC 157 : 2015 (2) MhLJ 575 (SC)].

Form of complaint.—There is no particular format of a complaint. A petition addressed to the Magistrate containing an allegation that an offence has been committed and ending with a prayer that the culprits be suitably dealt with is a complaint [Mohd. Yousuf v Afaq Jahan, 2006 Cr LJ 788 (793) (SC) : 2006 (1) Crimes 81 : (2006) 1 SCC 627 : AIR 2006 SC 705]. It is not essential that the names of the accused should be given [Baldeo, AIR 1933 P 297, Dedarbux, 41 C 1013], or that any section should be cited [Baldeo, supra] and it also does not matter, if wrong section is quoted [Lilaram, 40 Cr LJ 122; Nagendra, AIR 1954 P 356]. Complaint charging two people in the alternative cannot be accepted [Narinjan, 31 Cr LJ 1065]. Subject to certain exceptions (e.g., sections 195–199) any one who knows about the commission of an offence (and not necessarily the person injured) can make a complaint [Ganesh, 13 B 600; Basirulla, 33 Cal WN 576; Farzand, 18 A 465; Dedarbux, supra; Quarishi, 46 M 88] and he need not also have personal knowledge of the facts [Sukumar, supra; Suresh, 1 PLT 531]. For offences under the Penal Code and the special offences created by the Companies Act the fact that the Act contains special provisions as to initiation of criminal proceedings by the liquidator is no bar to the filing of complaint by any one else. Nor, when a liquidator institutes a prosecution with the sanction of the Court, he is confined to the form of complaint prescribed in the Act [Sailendra, AIR 1955 C 29]. Complaint in respect of offences under the Companies Act [see All India, AIR 1956 Pu 210].

Distinction between Complainant and Informant.—In many of the judgments, the person giving the report under section 154 of the Code is described as the “complainant” or the “de facto complainant” instead of “informant”, assuming that the State is the complainant. These are not words of literature. In a case registered under section 154 of the Code, the State is the prosecutor and the person whose information is the cause for lodging the report is the informant. This is obvious from sub-section (2) of section 154 of the Code, which inter alia, provides for giving a copy of the information to the “informant” and not to the “complainant”. However the complainant is the person who lodges the complaint. The word “complaint” is defined under section 2(d) of the Code to mean any allegation made orally or in writing to a Magistrate and the person who makes the allegation is the complainant, which would be evident from section 200 of the Code, which provides for examination of the complainant in a complaint-case. Therefore, these words carry different meanings and are not interchangeable. In short, the person giving information, which leads to the lodging of the report under section 154 of the Code is the informant and the person who files the complaint is the complainant [Ganesha v Sharanappa, AIR 2014 SC 1198 : (2014) 1 SCC 87].

Presentation.—Complaint need not be presented in person. A letter to a Magistrate stating facts constituting an offence and requesting to take action is a complaint [Khetro, 17 Cal WN 449; Debi Pd, 35 A 8; Kanaiya, AIR 1940 L 208]. A petition was sent to the Premier against a police officer and when the person was sent for by the Magistrate, he made a statement on oath; it was a complaint [Gajadhar, AIR 1939 O 101]. A complaint by a public servant may be made by a letter [Satnarain, AIR 1960 P 514; Rukhabsa, AIR 1953 N 180—Contra :

Page 8 of 24 [s 2] Definitions.— Baldev, AIR 1952 A 937]. Defect in complaint may be cured under section 465 [Subramania, 32 M 3]. There can be no complaint of any offence read with section 106, but in such a case the reference to section 106 may be ignored and it must be treated as a complaint [Jaisri, AIR 1951 A 494].

Complaint without signature.—Various sections in the Code when contrasted with section 2(d) clarify that the Legislature was clearly of the intent that a written complaint need not be signed [Indra Kumar Patodia v Reliance Industries Ltd, AIR 2013 SC 426 : (2012) 13 SCC 1].

Joint complaint.—A joint complaint by two or more persons is not contemplated by the Code [Sasadhar, 35 Cal WN 782; Narayanaswami, AIR 1962 M 443] but still the Magistrate can examine one of them and issue process [Uzal Khan, 43 Cal WN 527— Contra: Joint complaint is allowed, Abdul Karim, AIR 1942 O 407].

Police Report.—Under section 190 cognizance of an offence is taken by a Magistrate in three ways: (1) upon complaint; (2) upon a police report; (3) upon information. In the case of information, the Magistrate acts on his own initiative [Sheopratap, AIR 1930 A 820]. Some cases held that “report of a police officer” as was the expression used and excluded from “complaint” defined in old section 4(h) meant report in a cognizable offence and that report in a non-cognizable offence amounts to a complaint [Sada, 28 B 150 FB; Ghulam, AIR 1925 L 237; ‘Chidambaram, 32 M 3; Jagdeo, AIR 1938 R 257]. The contrary view taken in many cases is that “complaint” excludes police report whether in a cognizable or non-cognizable offence [Ratnavelu, 49 M 526; Babulal, AIR 1936 N 86; Abdul Kadir, AIR 1936 MP 125; Bholanath, 28 Cal WN 490; Nagendra, 51 C 402; Halimali, AIR 1950 N 38; Tarapada, AIR 1935 C 640; Md Ghasi, AIR 1962 Raj 1; see notes to section 190 (b)]. In view of conflicting decisions and uncertainty in regard to the definition of “complaint” and the connected provisions in sections 173, 190, 207-A and 251-A in the old Code, in the definition of “complaint” the words “a police report” have been substituted for “report of a police officer” and an explanation has been inserted, and definition of “police report” has also been inserted [vide section 2 (r)]. For detailed discussions on the effect of this change, see notes under section 155(2), post]. “Complaint” in section 195(1)(a), however, has been used in the ordinary sense of a report in writing [Judhistir, AIR 1956 Ori 211]. The same document cannot be treated both as a police report and a complaint [Muluga, AIR 1957 AP 987], more so now in view of the definition of, police report inserted by section 2(r). Taking cognizance on invalid complaint can be treated as taking cognizance on information and the Magistrate can proceed under section 190(1)(c) [In the Matter of State of Kerala, AIR 1969 Ker 111 : 1969 Cr LJ 486 (Channulal, AIR 1949 A 692 relied on)].

Protest Petition.—In Bihar, a protest petition is treated as a complaint if it satisfies the requirements of section 4(1)(h) of the old Code corresponding to section 2(d) of the present Code. If a complaint or protest petition is filed, the Magistrate is bound to proceed under chapter XVI [Ramlakhan v Rameshwar, 1975 Cr LJ 866]. Where an objection application is filed requesting the Magistrate to issue process against the accused ignoring the report given by the police, the Magistrate has to consider whether the said objection application is a complaint as defined by the Code; and if he finds that it amounts to a complaint requesting him to issue process or take any other action he is bound to follow the procedure laid down by chapter XVI of the Code [Hathibhai v Khodabhai, 1973 Cr LJ 420; State v Lakhamshi, 7 Guj LR 130 : 1966 Cr LJ 1420 (FB)]. If a person is aggrieved by the final report and intends to moves the Magistrate for taking cognizance of the offence on the facts stated in the police report or for directing further investigation then and then only in the proper sense of the term the petition filed by him should be characterised as a protest petition. If he intends to move the Magistrate by way of lodging a complaint he should file a petition which complies with the requirements of section 2(d) of the Code and which should be dealt with in accordance with chapter XV of the Code [Sarju Ram v H.R. Tewary, 1970 Cr LJ 1117 (Patna)]. A Naraji or protest petition against report of an inquiry under section 202 or challenging final police report (after its submission or anticipation) is a complaint [Sunil Mahi v The State, AIR 1968 Cal 238 : 1968 Cr LJ 618; Lakshman Jena v Sudhakar Palta Singh, AIR 1969 Ori 149 : 1969 Cr LJ 926; Mahabir, AIR 1955 Ori 11; Akshay, AIR 1956 C 76; Saidu, AIR 1941 P 144; Sushil, AIR 1957 C 393; Satkari, AIR 1947 C 439; Lachmi, AIR 1932 C 383]. Protest petition that Investigating Officer was not investigating case properly and that the accused be summoned and put on trial can be treated as a complaint [Sakaldip, AIR 1966 P 473; Rameshwar, AIR 1958 P 11].

A protest petition cannot be treated as a complaint [Salim v State of UP, 2006 Cr LJ 1801 (All) : 2006 (3) All LJ

Page 9 of 24 [s 2] Definitions.— 809 : (2006) 55 All CrC 120; Mahendra Pal Sharma v State of UP, 2003 Cr LJ 698 : 2002 All LJ 2899 : 2003 (1) Crimes 208 (All)].

A written complaint filed by a Food Inspector under the Prevention of Food Adulteration Act is a complaint [P. Raveendran Thampi v Sadasivan, (1981) Cr LJ 181 (Ker) : 1980 Ker LT 872 : 1981 Mad LJ (Cri) 196 : 1981 FAJ 233; Food Inspector Municipal Council, Alwaye v Secretary Ksheeravyavasay Co-op. Society, 1978 Cr LJ 532 (Ker) : 1977 Ker LT 370 : 1977 FAJ 229 ]. The Food Inspector can file an appeal as a complainant under section 378(4) challenging the order of acquittal [Food Inspector Municipal Council, Alwaye v Secretary Ksheeravyavasay Co-op. Society, (1978) Cr LJ 53 (Ker) : 1977 Ker LT 370 : 1977 (2) FAC 66]. A complainant is not required to set out in the complaint all the evidence in his possession, as a complaint is only an allegation of facts which constitute an offence with a view to summoning the accused for trial [Halimuddin Ahmad v Ashoka Cement Ltd, (1976) Cr LJ 449 (Pat)].

A charge-sheet filed by the Inspector of Police in pursuance of authorisation issued by the Commissioner of Police under section 16, AP Prevention of Disfigurement of open place and Prohibition of Absence and Objectionable Posters and Advertisements Act, 1997 has to be construed as complaint [Jabeen Sultana v State of AP, 2004 Cr LJ 3491 (3493, 3494) AP : 2004 (1) Andh LT (Cr) 373 : 2004 (1) Andh LD (Cri) 551].

An accused has a right to raise a preliminary objection to the maintainability of the complaint on the ground of limitation, jurisdiction or any other analogous ground and such objections should ordinarily be decided first to prevent waste of time [Nichodemus, AIR 1955 M 561]. Failure to explain satisfactorily delay in filing complaint is circumstance of considerable importance [Khedu Mohton v State of Bihar, AIR 1971 SC 66 : 1971 Cr LJ 20 : (1970) 2 SCC 450].

Not a complaint.—A protest petition filed by accused against final report of police [Mahendra Pal Sharma v State of UP, 2003 Cr LJ 698 : 2002 All LJ 2899 : 2002 (45) All Cr C 1127 : 2002 (3) All Cr R 2452 : 2003 (1) Crimes 208 (All); Salim v State of UP, 2006 Cr LJ 1801 (All) : 2006 (3) All LJ 809 : (2006) 55 All CrC 120]. Complaint must be made with a view to taking action, and so these are not complaints—Petition alleging commission of offence but with no desire to prosecute [Bhaman, 6 Cal WN 926] or, to take action [Ahmed, 17 Cal WN 980; Haider, 36 A 222]. Petition filed with the object of coercing the other party to give back property [Rukmani, 16 Cr LJ 466], or requiring administrative action [Subodh, AIR 1949 C 55]; Complaint for taking action not as a Magistrate but in his capacity as Inspector of Factories [Gopaldas, AIR 1955 A 511]; Mere statement that accused has disobeyed an order under section 144 [Saroj, 48 Cr LJ 747]; Application for proceeding under section 107 [Md. Yusuf, AIR 1931 A 53; Re Manicka Reddy, AIR 1968 Mad 225 : 1968 Cr LJ 760], or under section 110 [Imam, 27 C 662], or under section 145 [Chathu, 20 C 729].

Application not a Complaint.—Application for restoration of electric connection and warning the accused [Durga Dutt, 54 Cal WN 916]; a report by an Inspector of Local Bodies sent to the police against certain persons for investigation of offence of misappropriation with a copy to the Sub-divisional Magistrate [Har Narain, AIR 1958 P 10]; a proceeding or a conviction based on a complaint not according to law is illegal [Durga Dutt, supra].

Non-cognizable Offences.—Once the Magistrate proceeds on the basis of the original complaint,—then he must first proceed to examine on oath the complainant and his witnesses under section 200 and thereafter hold an inquiry himself or direct the inquiry to be held by a police officer under section 202. He must then either dismiss the complaint or issue the process. Thus, in a complaint case, alleging commission of a non-cognizable offence, it is incumbent upon the Magistrate to examine upon oath the complainant and his witnesses. The Magistrate cannot straightway assign the complaint to the police for investigation, as such a procedure is not warranted by law. [Cucusan Foils Pvt Ltd v State (Delhi Admn.), (1991) Cr LJ 683 (Del) : 1990 (30 DL 242 : 1990 Rajdhani LR 460 (Santosh Duggal J)].

Absence of prayer.—Where the applicant moves an application before the Magistrate with the simple prayer that the police officer concerned may be directed to register a case under a particular section and prayer for further direction is made that the police officer concerned may also proceed in accordance with law cannot be

Page 10 of 24 [s 2] Definitions.— termed as “complaint” as defined in section 2(d) of the Code. Only allegations made whether orally or in writing to a Magistrate with a view to his taking action under the Code can be termed as a complaint [Chhedi v State, (1991) Cr LJ 3017 (All) : 1991 All LJ 999 : 1991 All CrLR 320 (BP Singh J)].

Absence of any prayer of taking action against the accused according to law and/ or to punish them according to law, does not affect the legality and validity of the complaint. Similarly prayer of the complainant for directing investigation under section 156(3), Code of Criminal Procedure, 1973, i.e., for an order under section 156(3) cannot be said to be in any way illegal. Jitendra Chandrakant Mehta v Shamrock Impex Pvt Ltd, 2006 Cr LJ 3131 (3134) (Bom) : 2006 (1) Bom CR (Cri) 906.

Absence of prayer to punish accused according to law would not affect legality and validity of the complaint [Jitendra Chandrakant Mehta v Shemrock Impex Pvt Ltd, 2007 (1) Crimes 150 (SN) (Bom).

Who can complain.—It is not necessary that a complaint must be filed by the aggrieved person. Except as otherwise provided by sections 195 to 199, Code of Criminal Procedure, 1973 any person can file a complaint. [Polavarapu Jagadiswararao v Kondapaturi Venkateshwarlu, (1991) Cri LJ 1419 (AP) : 1991 (1) Andh LT 70 : 1991 (1) APLJ 71 (Bhaskar Rao J)].

Return of complaint.—If the complaint is defective, complainant has to suffer. The Magistrate cannot return the complaint. [Vinayagam v Dr. Subhash Chandran, 2000 Cr LJ 1579, 1585 para 15, 18 (Mad) : 2000 Mad LJ (Cri) 414 : 2000 Mad LW (Cri) 460 (DB)].

(e) “High Court”.—See “Changes” above; section 3(25) General Clauses Act, 1897; Article 366 (14) of the Constitution.

The High Court before which the writ petition is filed must ascertain whether any part of the cause of action has arisen within the territorial limits of its jurisdiction. It depends upon the facts in each case. Mere fact that the FIR was registered in a particular State is not the sole criterion to decide that no cause of action has arisen even partly within the territorial limits of jurisdiction of another State. Nor that can any person create a fake cause of action or even concoct one by simply jutting into the territorial limits of another State or by making a sojourn or even a permanent residence therein. The place of residence of the person moving a High Court is not the criterion to determine the contours of the cause of action in that particular writ petition [Navinchandra N. Majithia v State of Maharashtra, AIR 2000 SC 2966 : (2000) 7 SCC 640].

A large number of events took place at Bombay in respect of the allegations contained in the FIR registered at Shillong. In the given situation, therefore it was found almost impossible to hold that not even a part of the cause of action had arisen at Bombay soasto deprive the High Court of Bombay total jurisdiction to entertain the writ petition filed by the petitioner. Even the very fact that major portion of the investigation of the case under the FIR had to be conducted at Bombay itself showed that the cause of action could not escape from the territorial limits of the Bombay High Court [Navinchandra N. Majithia v State of Maharashtra, AIR 2000 SC 2966 : (2000) 7 SCC 640 per K T Thomas J].

(f) “India”.—See section 3(28), General Clauses Act, 1897 and Article 1(3) of the Constitution.

(g), (h) “Inquiry”, “Investigation” and “Trial”.—The term “inquiry” has a very wide connotation under the Code. It includes every inquiry other than a trial. Inquiry under the Code is relatable to a judicial act and not to the steps taken by the Police which are either investigation after the stage of section 154 of the Code or termed as “Preliminary Inquiry” and which are prior to the registration of FIR, even though, no entry in the General Diary/Station Diary/Daily Diary has been made. In the absence of any indication to the contrary in the Code itself, the provisions of the CBI Crime Manual cannot be relied upon to import the concept of holding a

Page 11 of 24 [s 2] Definitions.— preliminary inquiry in the scheme of the Code of Criminal Procedure, 1973 [Lalita Kumari v Govt of UP, AIR 2014 SC187 : 2014 Cr LJ 470 : 2013 (13) Scale 559 : (2014) 2 SCC 1].

Section 2(g) of the Code clearly envisages an inquiry before the actual commencement of the trial, and is an act conducted under Code of Criminal Procedure, 1973 by the Magistrate or the Court. The word “inquiry” is, therefore, not any inquiry relating to the investigation of the case by the investigating agency but is an inquiry after the case is brought to the notice of the Court on the filing of the charge-sheet. The Court can thereafter proceed to make inquiries and it is for this reason that an inquiry has been given to mean something other than the actual trial [Hardeep Singh v State of Punjab, 2014 AIR SCW 667].

Every inquiry other than a trial conducted by the Magistrate or Court is an inquiry. No specific mode or manner of inquiry is provided under section 202 of the Code. In the inquiry envisaged under section 202 of the Code, the witnesses are examined whereas under section 200 of the Code, examination of the complainant only is necessary with the option of examining the witnesses present, if any. This exercise by the Magistrate, for the purpose of deciding whether or not there is sufficient ground for proceeding against the accused, is nothing but an inquiry envisaged under section 202 of the Code [Vijay Dhanuka v Najima Mamtaj, 2014 (4) Scale 413 : 2014 Cr LJ 2295 (SC)].

A proceeding under section 209 is in the nature of an inquiry within the meaning of section 2(g) [Tuneshwar Prasad Singh v State of Bihar, AIR 1978 Pat 225 FB : (1978) Cr LJ 1080]. When a Magistrate is conducting an inquiry, it is an inquiry otherwise it becomes an investigation [Birendra Singh v State of Jharkhand, 2004 Cr LJ 1913 : AIR 2004 Jhar HCR 1098 : 2004 (1) BLJR 241 : 2003 (3) Cur Cr R 82 : 2004 (1) JCJR 96 (Jhar)]. After the filing of the police report the proceeding till the commitment is made under section 209 would be an inquiry [State of UP v Lakshmi Brahman, AIR 1983 SC 439 : 1983 Cr LJ 839 : 1983 (1) Crimes 797 : (1983) 2 SCC 372]. The view taken in State of UP v Lakshmi Brahman, AIR 1983 SC 439 : 1983 Cr LJ 839 was held per incuriam by the Supreme Court in Raj Kishore Prasad v State of Bihar, 1996 Cr LJ 2523. The Supreme Court held that under section 209 of the Code the role of the Magistrate is only to see that the package sent to the Court of Session is in order, so that it can proceed straight away with the trial and that nothing is lacking in content, as per the requirements of sections 207 and 208 of the Code. Such proceedings do not fall squarely within the ambit of “inquiry” as defined in section 2(g) of the Code, which defines that “inquiry means every inquiry, other than a trial conducted under this Code by a Magistrate or a the Court”, because of the prelude of its being “subject to the context otherwise requiring”. The context requires the proceedings before a Magistrate to be formal, barely committal in that sense, and that any notion based upon the old state of law of its being an inquiry to which section 319 could get attracted, has been done away with. However, a contrary view has been taken in certain cases that from the time the accused appears or is produced before the Magistrate with the police report under section 173(2), the Magistrate then proceeds to enquire whether section 207 has been complied with and then commits the accused to the Court of Session; the proceeding before the Magistrate would be an inquiry as contemplated by section 2(g) of the Code [Gulam Mohd. Kabir Mohd. Mir v State of Maharashtra, 2008 Cr LJ 2426; Chandu Mondal v State of WB, 2010 Cr LJ 3066 (Calcutta); Ramjidas v State of Rajasthan, 1977 Cr LJ 591 (Rajasthan); Swaroop Singh v State of Rajasthan, 1976 Cr LJ 1655 (Rajasthan DB); Tuneshwar Prasad v State of Bihar, 1978 Cr LJ 1080 (All) (FB); Chauthmal v State of Rajasthan, 1982 Cr LJ 1403].

Section 2(g) of the Code of Criminal Procedure, 1973 envisages an inquiry before the actual commencement of the trial, and is an act conducted under the Code of Criminal Procedure, 1973 by the Magistrate or the Court. The word “inquiry” is, therefore, not any inquiry relating to the investigation of the case by the investigating agency but is an inquiry after the case is brought to the notice of the Court on the filing of the charge-sheet. The Court can thereafter proceed to make inquiries and it is for this reason that an inquiry has been given to mean something other than the actual trial [Hardeep Singh v State of Punjab, AIR 2014 SC 1400 : (2014) 3 SCC 92]. Investigation is an exclusive domain of police, a Magistrate has no control on it [Manubhai Ratilal Patel Tr. Ushaben v State of Gujarat, AIR 2013 SC 313 : (2013) 1 SCC 314 : 2013 Cr LJ 160 (SC)].

Section 202 of the old Code authorised a Magistrate to have an inquiry made by a Magistrate subordinate to him. Such a course is not open to him under section 202 of the present Code, as the provision for inquiry by a Subordinate Magistrate has been deleted from sub-section (1) of section 202 of the new Code. Under the new

Page 12 of 24 [s 2] Definitions.— Code, the inquiry must be done by the Magistrate himself. He cannot direct some other Magistrate to conduct the inquiry [Pitambar Mishra v Chandra Sekhar Panda, (1990) Cr LJ 1892 (Ori) : 1990 (3) OCR 297 (V. Gopalaswamy, J)].

Inquiry may be in respect of (i) offences, or (ii) of matters which are not offences [Ali Md, 13 Cal WN 420]. Under (i) falls the inquiry into warrant cases instituted otherwise on a police report prior to charge under chapter 19 [Mohanbhai Bhamraj v State of Gujarat, (1979) Cr LJ 1446 (Guj) : 1979 CrLR (Guj) 269]. Under (ii) comes inquiry under chapter 8 [Ali Md., supra; Chand, 9 C 878; Beni, AIR 1939 N 143], chapters 9 and 10C (section 144) [Jamuna, AIR 1958 P 91] and chapter 10-D [Anu, 37 C 812]. An inquiry includes every enquiry before trial to ascertain whether any offence has been committed and any one should be put upon trial, e.g. inquiry under section 159 [Motilal, 46 B 61], or under section 176 [Laxminarayan, AIR 1928 B 390]. When does inquiry commence? [Pandurang, 32 Cr LJ 1161]. Besides, there may be local inquiry under section 148. While an inquiry may start with shadowy beginnings and vague rumours, once a police officer forms a definite opinion that there are grounds for investigating a crime, an investigation has started [P. Sirajuddin v Government of Madras, AIR 1968 Mad 117 : 1968 Cr LJ 493].

Inquiry does not include a trial but only refers to a judicial inquiry into the matter by a Magistrate or other Court [RP Kapoor v Pratap Singh Kairon, AIR 1966 All 66 : 1966 Cr LJ 115]. Inquiry relates to proceedings before a Magistrate prior to trial, while “investigation” is confined to proceedings taken by the police or by any person other than a Magistrate who is authorised in this behalf [Pedda, 45 M 230; Hosihde, 44 Cal WN 82]. Scheme of the Code as to inquiry discussed [Mithan, AIR 1956 A 351]. The object of an investigation is the collection of evidence and that of an inquiry the taking of evidence for further action [Rambarai, 5 PLJ 47 ; see Manimohan, 35 Cal WN 623, 629].

Investigation.—Investigation consists generally of—(i) Proceeding to the spot; (ii) Ascertainment of facts and circumstances; (iii) Discovery and arrest of suspected offender; (iv) Collection of eviden1ce which may consist of (a) examination of persons (including accused) and recording statements if thought fit, (b) search of place and seizure of things and (v) consideration whether the materials are enough for submitting a charge-sheet [Rishbud HN Inder Singh v State of Delhi, 1955 SCJ 283 : AIR 1955 SC 196 : 1955 Cr LJ 526; Mobarik Ali, AIR 1959 SC 707 : 1959 SCJ 843; State of UP v Bhagwant Kishore Joshi, AIR 1964 SC 221 : 1964 Cr LJ 140]. On receipt of an FIR, the police officer proceeds to the spot and makes enquiry—it amounts to investigation [Randhir, (1980) Cr LJ 1397 (Del)].

Definition of “investigation” does not refer that the investigation should be conducted only by the officer-incharge of the police station. Where in an offence under the Prevention of Corruption Act read with Indian Penal Code, 1860 is conducted by the Inspector who is subordinate to the Superintendent of Police and had prepared the draft charge-sheet in terms of Clause 10.28 of the CBI Manual and in the light of the provisions of the Code of Criminal Procedure, 1973, provisions of the Act and the CBI Manual, no fault could be found as regards to the investigation conducted by the Inspector of Police [K. Ashok Kumar v CBI / ACB, 2011 Cr LJ 1928 (1935) (Kant)].

A police officer investigates a case himself or under the order of a Magistrate (section 202). Investigation by police should be in a proceeding under the Code and so an investigation under the Sea Customs Act is not within the definition [Hoshide, supra]. (See now Customs Act, 1962).

Investigation in a non-cognizable offence commences with the order of a Magistrate (section 155). A Police officer is not permitted to investigate a non-cognizable case without obtaining prior permission of the Magistrate concerned [Illies Ali v State of WB, 1997 Cr LJ 803 (Cal)].

The Court would not interfere with the investigation or during the course of investigation which would mean from the time of the lodging of the FIR till the submission of the report by the officer-in-charge of the police station. Court cannot exercise inherent powers and interfere with investigation [UOI v Prakash P. Hinduja, 2003 Cr LJ 3117 (SC)]. Investigation is neither an inquiry nor a trial. It is within the exclusive domain of the police to

Page 13 of 24 [s 2] Definitions.— investigate and is independent of any control by the Magistrate [Manubhai Ratilal Patel Tr. Ushaben v State of Gujarat, 2013 Cr LJ 160 (167) (SC) : 2012 AIR SCW 5771 : 2012 (9) Scale 559; State of Bihar v J.A.C. Saldanha, AIR 1980 SC 326 : (1980) 1 SCC 554 : 1980 Cr LJ 98].

A Magistrate cannot interfere with the investigation by the police. However, in our opinion, the ratio of this decision would only apply when a proper investigation is being done by the police. If the Magistrate on an application under section 156(3) of the Code of Criminal Procedure, 1973 is satisfied that a proper investigation has not been done, or is not being done by the officer-in-charge of the concerned police station, he can certainly direct the officer in charge of the police station to make a proper investigation and can further monitor the same (though he should not himself investigate) [UOI v Prakash P. Hinduja, AIR 2003 SC 2612 : 2003 Cr LJ 3117 (SC); Sakiri Vasu v State of UP, AIR 2008 SC 907 : (2008) 2 SCC 409].

Investigation—Powers of Magistrate.—The Magistrate has very wide powers to direct registration of an FIR and to ensure a proper investigation, and for this purpose he can monitor the investigation to ensure that the investigation is done properly (though he cannot investigate himself). The High Court should discourage the practice of filing a writ petition or petition under section 482 Code of Criminal Procedure, 1973 simply because a person has a grievance that his FIR has not been registered by the police, or after being registered, proper investigation has not been done by the police. For this grievance, the remedy lies under sections36 and 154(3) before the concerned police officers, and if that is of no avail, under section 156(3) Code of Criminal Procedure, 1973 before the Magistrate or by filing a criminal complaint under section 200 Code of Criminal Procedure, 1973 and not by filing a writ petition or a petition under section 482 Code of Criminal Procedure, 1973 [Sakiri Vasu v State of UP, AIR 2008 SC 907 : (2008) 2 SCC 409].

Investigation by CBI.—A Magistrate cannot order investigation by the CBI [CBI v State of Rajasthan, 2001 (3) SCC 333] A direction by the High Court, in exercise of its jurisdiction under Article 226 of the Constitution, to the CBI to investigate a cognizable offence alleged to have been committed within the territory of a State without the consent of that State will neither impinge upon the federal structure of the Constitution nor violate the doctrine of separation of power and shall be valid in law. Being the protectors of civil liberties of the citizens, this Court and the High Courts have not only the power and jurisdiction but also an obligation to protect the fundamental rights, guaranteed by Pt III in general and under Article 21 of the Constitution in particular, zealously and vigilantly [State of WB v Committee for Protection of Democratic Rights, West Bengal, 2010 (3) SCC 571].

Statements of person residing outside India recorded by police officers who are investigating an offence fall within “investigation.” [Vinod Kumar Jain v State Through CBI, (1991) Cr LJ 669 (Del) : (1990) 42 DLT 186 : (1990) 19 DRJ 121 (PK Bahri, J)].

For a cognizable offence, investigation properly commences when the police officer has sent in his report to the Magistrate under section 157 or has received an order from him to investigate (e.g. under sections 156(3), 159, 202). The police have statutory power to investigate a cognizable offence without a Magistrate’s order and this power cannot be interfered with by any Court [Nazir Ahmad, 40 Cal WN 191 : AIR 1945 PC 18 : 71 IA 202]. An investigation does not necessarily cease with the commencement of an inquiry. It has been held that even an order by the Magistrate for investigation under section 202 does not debar the police from exercising their general powers of arrest and investigation [Bhola, 2 P 379; Gopal, 54 M 598; see, however, Isaf, 54 C 303; Arula, 12 Cr LJ 463]. An illegality in investigation does not vitiate the jurisdiction of the Court for trial unless miscarriage of justice has been caused thereby [Sailendranath Bose v State of Bihar, AIR 1968 SC 1292 : (1969) 1 SCJ 133 : 1968 Cr LJ 1484].

A Special Judge/Magistrate cannot refer a complaint for investigation under section 156(3) of the Code of Criminal Procedure, 1973 against a public servant without a valid sanction order from the Government [Anil Kumar v M. K. Aiyappa, 2013 (10) SCC 705].

The collection of samples and the analysis by the public analyst do not amount to investigation [State of

Page 14 of 24 [s 2] Definitions.— Rajasthan v Shambhoogiri, (2004) 8 SCC 169 (173) : (2004) 4 Crimes 183 (SC) : AIR 2005 SC 1643 : 2004 AIR SCW 5837].

The word “investigation” cannot be limited only to police investigation but on the other hand, the said word is of a wider connotation and flexible so as to include the investigation carried on by any agency whether he be a police officer or empowered authorised officer or a person not being a police officer under the direction of a magistrate to make an investigation vested with the power of investigation. It cannot be said that either the officer of enforcement or the customs officer is not empowered with the power of investigation though not with the power of filing a final report as in the case of a police officer [Directorate of Enforcement v Deepak Mahajan, AIR 1994 SC 1775 : 1994 Cr LJ 2269 : (1994) 3 SCC 440 : 1994 (1) Crimes 892 (SC)].

“Investigation” means search for material and facts in order to find out whether or not an offence has been committed. It does not matter whether it is made by the police officer or a customs officer who intends to lodge a complaint [NH Dave, Inspector of Customs v Mohmed Akhtar Hussain Ibrahim Iqbal Kadar Amad Wagher (Bhatti), (1982) 2 GLR 792 followed in Directorate of Enforcement v Deepak Mahajan, AIR 1994 SC 1775 : 1994 Cr LJ 2269 : (1994) 3 SCC 440 : 1994 (1) Crimes 892 (SC)].

Any telephonic information about the commission of a cognizable offence irrespective of the nature and details of such information cannot be treated as an FIR. It cannot be said that in such a situation the moment the officer in charge leaves the police station, the investigation has commenced. In normal course, he has first to find out the person, who can give the details of the offence, before such officer is expected to collect the evidence in respect of the said offence [Ram Singh Jadeja v State of Gujarat, 1994 Cr LJ 3067 : 1994 SCC (Cri) 609 : (1994) 2 SCC 685 : 1994 (1) Crimes 729 (SC)].

Mere calling for a report by the Human Rights Commission from the Superintendent of Police does not amount to any investigation by the Police [Sabita Paharaj v Gitarani Paharaj, 2004 Cr LJ 3975 (3978) (Ori) : 2004 (4) Crimes 72 : 2004 (2) Ori LR 193].

Investigation of Encounter Deaths: SC Guidelines.—(1) Whenever the police is in receipt of any intelligence or tip-off regarding criminal movements or activities pertaining to the commission of a grave criminal offence, it shall be reduced into writing in some form (preferably into case diary) or in some electronic form. Such recording need not reveal details of the suspect or the location to which the party is headed. If such intelligence or tip-off is received by a higher authority, the same may be noted in some form without revealing details of the suspect or the location.

(2) If pursuant to the tip-off or receipt of any intelligence, as above, encounter takes place and firearm is used by the police party and as a result of that, death occurs, an FIR to that effect shall be registered and the same shall be forwarded to the Court under section 157 of the Code without any delay. While forwarding the report under section 157 of the Code, the procedure prescribed under section 158 of the Code shall be followed.

(3) An independent investigation into the incident/encounter shall be conducted by the CID or police team of another Police Station under the supervision of a senior officer (at least a level above the head of the police party engaged in the encounter). The team conducting inquiry/investigation shall, at a minimum, seek:

(a) To identify the victim; colour photographs of the victim should be taken; (b) To recover and preserve evidentiary material, including blood-stained earth, hair, fibers and threads, etc., related to the death; (c) To identify scene witnesses with complete names, addresses and telephone numbers and obtain their statements (including the statements of police personnel involved) concerning the death;

Page 15 of 24 [s 2] Definitions.— (d) To determine the cause, manner, location (including preparation of rough sketch of topography of the scene and, if possible, photo/video of the scene and any physical evidence) and time of death as well as any pattern or practice that may have brought about the death; (e) It must be ensured that intact fingerprints of the deceased are sent for chemical analysis. Any other fingerprints should be located, developed, lifted and sent for chemical analysis; (f)

Post-mortem must be conducted by two doctors in the District Hospital, one of them, as far as possible, should be the Incharge/Head of the District Hospital. Post-mortem shall be videographed and preserved;

(g) Any evidence of weapons, such as guns, projectiles, bullets and cartridge cases, should be taken and preserved. Wherever applicable, tests for gunshot residue and trace metal detection should be performed. (h) The cause of death should be found out, whether it was natural death, accidental death, suicide or homicide.

(4) A Magisterial inquiry under section 176 of the Code must invariably be held in all cases of death, which occur in the course of police firing and a report thereof must be sent to the Judicial Magistrate having jurisdiction under section 190 of the Code.

(5) The involvement of the National Human Rights Commission (NHRC) is not necessary unless there is serious doubt about independent and impartial investigation. However, the information of the incident without any delay must be sent to NHRC or the State Human Rights Commission, as the case may be.

(6) The injured criminal/victim should be provided with medical aid and his/her statement recorded by the Magistrate or Medical Officer with certificate of fitness.

(7) It should be ensured that there is no delay in sending the FIR, diary entries, panchnamas, sketch, etc., to the concerned Court.

(8) After full investigation into the incident, the report should be sent to the competent Court under section 173 of the Code. The trial, pursuant to the charge-sheet submitted by the Investigating Officer, must be concluded expeditiously.

(9) In the event of death, the next of kin of the alleged criminal/victim must be informed at the earliest.

(10) Six monthly statements of all cases where deaths have occurred in police firing must be sent NHRC by DGPs. It must be ensured that the six monthly statements reach to NHRC by 15th day of January and July, respectively. The statements may be sent in the following format along with post mortem, inquest and, wherever available, the inquiry reports.

(i)

Date and place of occurrence.

(ii) Police Station, District. (iii) Circumstances leading to deaths:

(a) Self defence in encounter. (b) In the course of dispersal of unlawful assembly.

Page 16 of 24 [s 2] Definitions.— (c) In the course of effecting arrest. (iv) Brief facts of the incident. (v) Criminal Case Number. (vi) Investigating Agency. (vii) Findings of the Magisterial Inquiry/Inquiry by Senior Officers:

(a) disclosing, in particular, names and designation of police officials, if found responsible for the death; and (b) whether use of force was justified and action taken was lawful.

(11) If on the conclusion of investigation the materials/evidence having come on record show that death had occurred by the use of firearm amounting to offence under the Indian Penal Code, 1860, disciplinary action against such officer must be promptly initiated and he be placed under suspension.

(12) As regards compensation to be granted to the dependants of the victim who suffered death in a police encounter, the scheme provided under section 357A of the Code must be applied.

(13) The Police Officer(s) concerned must surrender his/her weapons for forensic and ballistic analysis, including any other material, as required by the investigating team, subject to the rights under Article 20 of the Constitution.

(14) An intimation about the incident must also be sent to the Police Officer’s family and should the family need services of a lawyer/counselling, same must be offered.

(15) No out-of- turn promotion or instant gallantry rewards shall be bestowed on the concerned officers soon after the occurrence. It must be ensured at all costs that such rewards are given/recommended only when the gallantry of the concerned officers is established beyond doubt.

(16) If the family of the victim finds that the above procedure has not been followed or there exists a pattern of abuse or lack of independent investigation or impartiality by any of the functionaries as above mentioned, it may make a complaint to the Sessions Judge having territorial jurisdiction over the place of incident. Upon such complaint being made, the concerned Sessions Judge shall look into the merits of the complaint and address the grievances raised therein [People’s Union for Civil Liberties v State, (2014) 10 SCC 635 : 2014 (11) Scale 119].

Trial.—In the Code of 1872, trial was defined as the proceedings taken in Court after a charge has been drawn up, and includes the punishment of the offender; but the definition was omitted from the subsequent Codes. The reason, perhaps, is that it was intended that the term should not bear the same meaning in all the provisions of the Code. So, it has been held that “trial” has no fixed or universal meaning and must be construed according to the particular context and intendment of individual section [Jiban Molla, 34 Cr LJ 684 : AIR 1933 C 551; Piare Dosadh, AIR 1944 FC 1 : 1944 FCR 61 : 45 Cr LJ 413; Venkatachennaya, AIR 1920 M 337; Inayat, AIR 1950 A 369; Ramjeet, AIR 1958 A 439]. In warrant cases instituted on a police report, proceedings starting with section 238 including discharge or framing of charges under section 239 or section 240 amount to a trial [V.C. Shukla v State, AIR 1980 SC 962, 986 : (1980) 2 SCJ 211 : 1980 Cr LJ 690].

Page 17 of 24 [s 2] Definitions.— “Trial” is a judicial proceeding before the Court which ends in conviction or acquittal. All other proceedings are inquiries and they have various endings according to circumstances [see Hema, AIR 1929 P 644; Haridas, 15 C 608 FB; Harihar, AIR 1936 C 365; Tuneshwar Prasad Singh v State of Bihar, AIR 1978 P 225 FB : 1978 Cr LJ 1080]. It covers the whole of the proceedings which commence when the case is called on for hearing [Dagdu, AIR 1937 B 55]. “Trial” means the whole of the proceedings including sentence [Basil Ranger Lawrence v Emperor, AIR 1933 PC 218 : 34 Cr LJ 886]. For certain purposes trial continues until judgment is delivered [Channula, AIR 1948 A 662; Raghu, AIR 1949 P 105; Mc Carthy, 9 A 420; Naramuddin, AIR 1955 As 214]. “Trial” generally includes appeal. As to “Court” see clause (i) post.

Enquiry does not mean trial and it follows that further inquiry does not mean further trial. Therefore, no further inquiry can be ordered, in the present case by the lower appellate Court [Yenuganti Tata Rao v State, 2011 Cr LJ 1256 (1257) : (2010) 2 Andh LD (Cr) 952 (AP)].

A five-Judges’ Bench of the Supreme Court has held that the term “Trial” means determination of issues adjudging the guilt or the innocence of a person, the person has to be aware of what is the case against him and it is only at the stage of framing of the charges that the Court informs him of the same, the “trial” commences only on charges being framed. Section 2(g) of the Code of Criminal Procedure, 1973 and case law clearly envisage inquiry before the actual commencement of the trial, and is an act conducted under Code of Criminal Procedure, 1973 by the Magistrate or the Court. The word “inquiry” is, therefore, not any inquiry relating to the investigation of the case by the investigating agency but is an inquiry after the case is brought to the notice of the Court on the filing of the charge-sheet. The Court can thereafter proceed to make inquiries and it is for this reason that an inquiry has been given to mean something other than the actual trial [Hardeep Singh v State of Punjab, AIR 2014 SC 1400 : (2014) 3 SCC 92 2014 : AIR SCW 667 overruling UOI v Major General Madan Lal Yadav (Retd.), AIR 1996 SC 1340 : 1996 (4) SCC 127].

Investigation conducted by police who is a complainant and witness to the crime would not be automatically vitiated [Asaduddin Owaise v State of AP, 2001 Cr LJ 3939 (AP) : 2001 (1) Andh LT (Cri) 460 : 2001 (3) Cur Cr R 556].

(i) “Judicial Proceeding.”—The definition is clearly not exhaustive [Bahadur, 37 C 642 FB]. It is limited to the Code [Purshottam, 45 B 834, 858]. It means a proceeding in which judicial functions are being exercised [Harcharan, 32 C 367]. “Every judicial proceeding whatever has for its purpose the ascertainment of some right or liability. If the proceeding is criminal, the object is to ascertain the liability of the person accused. If the proceeding is civil, the object is to ascertain some right of property, or some status or the right of one party and the liability of the other to some form of relief [Report of the Select Committee on the Evidence Bill]. “Judicial proceeding” is a proceeding in which evidence is or may be taken on oath or in which any judgment, sentence or final order is passed on recorded evidence [see Gholam, 1 A 1, 13]. It includes inquiry, e.g., inquiry in a proceeding under section 176 [Laxminarayan, AIR 1928 B 390] but not an investigation. Proceedings in connection with a Magistrate’s executive, administrative, departmental or other functions are judicial proceedings. Whether a proceeding is judicial or not depends largely on the nature of the duty or work he is engaged in. In order that it may be a judicial proceeding, he must act in a judicial capacity, i.e., as a Court. If the proceeding is without jurisdiction, it cannot of course be a judicial proceeding [Radhika, 20 C 719]. Criterion for deciding whether an order is a judicial or an administrative order [Md. Baksh, AIR 1953 A 738; Basant, AIR 1954 A 477]. Tests for determining whether an act is judicial, administrative or ministerial [Abdoola, AIR 1950 C 36].

The following are judicial proceedings—Issue of search warrant [Clarke, 39 C 953, 967 : 39 IA 163; Mahomed, 15 C 109; Abdul Aziz, 17 Cr LJ 491]; inquiry under section 202 [Kanchan, 36 C 72]—Contra : Venkata, 23 M 223]; under section 176 [Troylokhonath, 3 C 742; Laxminarayan, supra]; under section 340 [Abdulla, 37 C 52]; inquiry before issue of order under section 144 [Triunarasimma, 19 M 18]; under the Legal Practitioners Act, 1879 [Nallasivam, 32 Mad LJ 402]; proceeding whether bail should be taken [Kamalapati Trivedi v State of WB, AIR 1979 SC 777 : 1979 Cr LJ 679 : (1979) 2 SCC 91; State of Maharashtra v Sk. Bannu, AIR 1981 SC 22 : 1980 (4) SCC 286 : 1980 SCC (Cri) 951 : 1980 Cr LJ 1280 (SC)]; proceeding under sections 167 and 173 [EP Subbarreddy, AIR 1967 AP 281]; section 299 [Gangawwa v State of Mysore, AIR 1969 Mys 114 : 1969 Cr LJ

Page 18 of 24 [s 2] Definitions.— 496]; section 446 [Har Ch, 25 C 440] or under section 144 [Govindram, 7 P 369; Jamuna, A 1958 P 92]; an execution proceeding [Bahadur, 37 C 642 FB; Brahamdeo, 19 Cr LJ 153]; examination of insolvent before the Official Assignee under section 33(2), Presidency Town Insolvency Act [Soundararajan, AIR 1958 M 69]. Mere fact that the order under section 156(3) of the Code directing police investigation is passed before taking any evidence on oath is no ground to hold that such order is in the nature of an executive order [Ajai Malviya v State of UP, 2001 Cr LJ 313].

The adjudicatory proceedings before Provident Fund Commissioner under section 7A of the Provident Fund and Miscellaneous Provisions Act (19 of 1952), is in nature of judicial proceedings. [Amit Vashistha v Suresh, AIR 2017 SC 4469 : 2017 (10) Scale 368].

Section 2(i) of the Code of Criminal Procedure, 1973 defines judicial proceeding to include any proceedings in course of which evidence is or may be legally taken on oath. This power is indisputably statutorily vested in authority holding proceedings under section 7A of the Employees Provident Fund s and Miscellaneous Provisions Act, (19 of 1952). Legislature, in its wisdom, considering seriousness of adjudicatory process under said provision, vested it with nature of judicial proceeding within meaning of sections 193 and 228 of Indian Penal Code, 1860. If proceeding under section 7A is deemed to be judicial proceeding by fiction, it must be carried to its logical conclusion. Therefore, such judicial proceeding can well be equated for that purpose with court under section 195(1)(b)(i). Proceedings under section 7A will partake character of Court. [Institute of Chartered Accountants of India v MS Rathi, AIR 2017 SC 4471].

The following are not judicial proceedings—Examination by police under section 161 [Ismail, 11 B 659]; order of the Government sanctioning prosecution under sections 196, 197 [Kalagava, 27 M 54]; action of Magistrate recording statement in the course of police investigation under section 164 [Purshottam, 45 B 834 FB; Puran, 1899 AWN 30; see, however, Alagu, 16 M 421; Maddela, 33 M 977]; proceedings under section 123(9) for cancelling bond [Daya, 37 C 72]; recording of confession during investigation [Md. Rahamatulla v State of Mysore, AIR 1968 My 95 : 1968 Cr LJ 521].

The report given by the inquiry committee in departmental proceedings set up by medical council cannot be treated as “Judicial Proceedings”. [Asoke Kumar Chaudhuri v Kunal Saha, AIR 2017 SC 618 : 2017 (5) SCJ 240].

(j) “Local Jurisdiction”.—The term “Court” is not defined anywhere in the Code of Criminal Procedure, 1973. Court is ordinarily understood as a place where justice is judicially administered (Stroud’s; Judicial Dictionary). The definition of “Judge” and “Court” of Justice in sections 19 and 20, Penal Code are applicable [clause (y)]. The definitions of “Judge” and “Court of Justice” indicate that the pronouncement of a definitive judgment is the essential sine qua non of a Court [Brajnandan Sinha v Jyoti Narain, AIR 1956 SC 66 : 1956 Cr LJ 156]. Under section 3, Evidence Act, “Court” includes all Judges and Magistrates, and all persons except arbitrators legally authorised to take evidence. What is or is not a “Court” or a ‘Judicial proceeding has been discussed in many cases, but no principle capable of universal application can be formulated, for what is a “Court” or a “judicial proceeding” for one purpose is not necessarily so for others. A Magistrate may not be a Court. He is a “Court” when he acts in a judicial capacity, i.e., when there is a judicial proceeding [Clarke, 39 C 539 PC; see Vedappan, 52 M 69], e.g., considering a bail application of a person accused of an offence under investigation of the police [Kamalapathi Trivedi v State of WB, AIR 1979 SC 777 : 1979 Cr LJ 679 : (1979) 2 SCC 91; State of Maharashtra v Sk. Bannu, AIR 1981 SC 22 : (1980) Cr LJ 1280 (SC) : (1980) 4 SCC 286]. Test as to whether the presiding officer of a Court acts as Court or a persona designata [Bathula, AIR 1959 AP 129]. For brevity, the Code uses the terms “Court” and “Magistrate”, generally, if not always, as convertible terms [Clarke, supra; Bihar Mun, AIR 1941 P 548; Ramanath, AIR 1953 M 953]. When a Magistrate arrests a person under section 44 he does not act as a Court [Hariharanand, AIR 1954 A 601]. A Commissioner or Dy. Commissioner of Police having the power of a presidency (now executive) Magistrate is not a “Court” within the Code [Ramanath, supra].

(k) “Metropolitan Area”.—See “Changes” above.

Page 19 of 24 [s 2] Definitions.— (l) “Non-cognizable offence”.—A non-cognizable offence is an offence for which a police officer has no authority to arrest without warrant [Om Prakash v UOI, 2012 Cr LJ 779 (788) (SC) : AIR 2012 SC 545 : (2013) 3 SCC (Cri) 1249]. Offence punishable under section 185 of the Motor Vehicles Act, 1988 is punishable with imprisonment for a period of six months in case of first offence, and with an enhanced punishment of imprisonment upto two years for second or subsequent offence. Therefore, going by the First Schedule to the Code, it would be “non-cognizable” [Sandeep Indravadan Sagar v State of Maharashtra, 2013 (1) Bom CR (Cri) 487]. See Changes above and clause (c) ante.

(m) “Notification”.—The term “Notification” means a notification published in the Official Gazette.

(n) “Offence”.—”Offence” means “an act or instance of offending’; “commit an illegal act” and illegal means, “contrary to or forbidden by law”. “Offence” has to be read and understood in the context as it has been prescribed under the provisions of sections 40, 41 and 42 of the Indian Penal Code, 1860 which cover the offences punishable under Indian Penal Code, 1860 or under special or local law or as defined under section 2(n) of Code of Criminal Procedure, 1973 or section 3(38) of the General Clauses Act, 1897. There is no statutory offence that takes place when adults willingly engage in sexual relations outside the marital setting, with the exception of “adultery” as defined under section 497, Indian Penal Code, 1860 [S. Khushboo v Kanniammal, (2010) 5 SCC 600 : AIR 2010 SC 3196 : (2010) 2 SCC (Cri) 1299; Vijay Singh v State of UP, (2012) 5 SCC 242 : AIR 2012 SC 2840—

A person cannot be tried for an alleged offence unless the Legislature has made it punishable by law and it falls within the offence as defined under section 40, section 41 and section 42 of the Indian Penal Code, 1860, section 2(n) of Code of Criminal Procedure 1973, or section 3(38) of the General Clauses Act, 1897].

Section 2(n) of Code of Criminal Procedure, 1973 defines offence as any act or omission made punishable by any law for the time being in force and includes any act in respect of which a complaint may be made under section 20 of the Cattle Trespass Act, 1871 (1 of 1871). Thus, the definition of “offence” under section 2(n), Code of Criminal Procedure, 1973, is wider enough to enable the police to investigate offences under other enactments also, apart from those under the Indian Penal Code, 1860 [Dharma Reddy v State, 1990 Cr LJ 1476. (AP); Director of Enforcement v MCT M Corp Pvt Ltd, AIR 1996 SC 1100 : (1996) 2 SCC 471].

An offence seldom consists of a single act. It is usually composed of several elements and, as a rule, a whole series of acts must be proved before it can be established [Shreekantiah Ramayya Munipalli v State of Bombay, AIR 1955 SC 287 : 1955 (1) SCR 1177].

There is a basic difference between the offences under the Indian Penal Code and acts and omissions, which have been made punishable under different Acts and statutes which are in nature of social welfare legislation. For framing charges in respect of those acts and omissions, in many cases, mens rea is not an essential ingredient; the concerned statute imposes a duty on those who are in charge of the management, to follow the statutory provisions and once there is a breach or contravention, such persons become liable to be punished. But for framing a charge for an offence under the Penal Code, the traditional rule of existence of mens rea is to be followed [Radhey Shyam Khemka v State of Bihar, (1993) 3 SCC 54 : 1993 (2) Scale 266].

In the absence of a definition in a special act, the term “offence” should be understood in the context of section 40 of the Indian Penal Code as an act that is criminally punishable and section 3(38) of the General Clauses Act as an act made punishable by any law and the essential ingredient is that it should be a criminal act as understood [Standard Chartered Bank v Directorate of Enforcement, AIR 2006 SC 1301 : (2006) 4 SCC 278]. Section 377 of Indian Penal Code, 1860 insofar as it criminalises consensual sexual acts of adults in private, is violative of Articles 21, 14 and 15 of the Constitution [Naz Foundation v NCT Delhi, 2010 Cr LJ 94 (Del). This judgement was reversed by the Supreme Court in Suresh Kumar Kaushal v Naz Foundation, (2014) 1 SCC 1].

Page 20 of 24 [s 2] Definitions.— The terms “felony”, misdemeanour, treason, etc., found in English law, are not used in Indian Penal law. All crimes are either felonies or misdemeanours. Generally speaking, felonies are the graver crimes “murder, rape, arson, theft, etc. The one word used here is offence; it is a comprehensive term embracing every act committed or omitted in violation of a penal law forbidding or commanding it. The word “crime” generally denotes an offence of a serious or heinous kind. The first sentence of the definition is the same as in section 3(38), General Clause Act, 1897. The definition is wider than that in the Indian Penal Code [Adams, 26 M 607]. To determine whether there is any offence or not, it must be seen whether the act or omission is punishable by any law in force [Laknia, 18 B 400, Moore, 20 C 676]. In force, i.e., in the territories of India [Govind, AIR 1955 N 236]. The definition is meant for the Code itself and is controlled by the restrictive words “unless the context otherwise requires” [Udit, AIR 1947 P 381]. Contempt of Court is not an “offence” [Padma, AIR 1954 A 523 FB]. Act complained of under section 133 [Srinath, 24 C 395] or section 145 [Pandurang, 25 B 179; Chathu, 20 C 79], or section 125 [Ponammal, 16 M 234; Mehr, 29 Cr LJ 1022; Jaswantsinghji, AIR 1955 B 108], is not an “offence”. So also, the creation of an unauthorised structure under Calcutta Municipal Act [Krishendayal, 54 C 532]. Offence under section 21(8) read with section 21(2)(d) of WB Premises Tenancy Act is not a criminal offence [Triloknath Lall v Malati Bibi Khetry, AIR 1967 Cal 145 : 1967 Cr LJ 342].

Proceedings under section 107 are not proceedings relating to offences [Divyajit Mehta v SS Katara, (1983) Cr LJ 315 (Guj) : (1982) 23 Guj LR 136].

(o) “Officer-in-charge of a police station”.—”Present” does not mean physical presence. He may be on duty outside the station house [Assam, 42 M 416]. The definition of “Officer-in-charge of a police station” in section 3, Calcutta Police Act is the “same except that words or, when the State Government … so present” at the end have been omitted. “Officer in charge of a police station” is defined in section 2(o) of the Code to mean “officer in charge of a police station” includes, when the officer in charge of the police station is absent from the stationhouse or unable from illness or other cause to perform his duties, the police officer present at the station-house who is next in rank to such officer and is above the rank of constable or, when, the State Government so directs, any other police officer so present. The definition is an inclusive one and has expansive meaning. The interpretation clause thus must receive a liberal interpretation [Nirmal Singh Kahlon v State of Punjab, AIR 2009 SC 984 : (2009) 1 SCC 441].

(p) “Place”.—See “Changes” above and section 133, Explanation.

(q) “Pleader.”—See Changes above. “Practice” includes both acting and pleading [Aswini Kumar Ghosh v Arabinda Bose, AIR 1952 SC 369 : 1953 SCR 1]. It also embraces persons who may not have legal qualification, e.g., a constituted attorney [Jaffar, AIR 1934 B 212] or estate manager, but he must be duly appointed by the person whom he represents with the permission of the Court [Dorabshah, 27 Cr LJ 440 : 50 B 250]. Person who is not an Advocate, Vakil or Attorney requires permission of Court to become “pleader” [D.A.S. Swami v Kubendran, AIR 1967 Mad 276 : 1967 Cr LJ 1020]. It is open to a party to a proceeding to get himself represented by a non-advocate in a particular instance or case with the permission of the Court [Harishankar Rastogi v Girdhari Sharma, AIR 1978 SC 1019 : (1978) 2 SCJ 488 : 1978 Cr LJ 778 : (1978) 2 SCC 165]. Where the accused did not secure permission from High Court to appoint power of attorney to act on his behalf, petition for permission to appear through the power of attorney was held liable to be dismissed [S. Balasubramanian v Dy. Commissioner of Police, 2005 Cr LJ 385 (Mad)].

Power of attorney holders of heirs of the deceased complainant in a case under section 138 of the Negotiable Instruments Act cannot file an application under section 302, Code of Criminal Procedure, 1973 to continue prosecution [Jimmy Jahangir Madan v Bally Cariappa Hindley, 2005 Cr LJ 112 (116) : JT (2004) 9 SC 558 : AIR 2005 SC 48 : 2004 (4) Crimes 366 : (2004) 12 SCC 509].

(r)”Police Report.”—See “Changes” above. See also comment under “Complaint.” A police report as defined in section 2(r) can be filed only as soon as the investigation is completed. An incomplete charge-sheet cannot be termed a police report and the Magistrate cannot take cognizance on the basis of such a charge-sheet.

Page 21 of 24 [s 2] Definitions.— [Sharad Chandra Vinayak Dongre v State of Maharashtra, 1991 Cr LJ 3329 (Bom) : 1991 Mah LJ 3339 : 1991 (2) All CrLR 480 (S Wurani, J)].

“Police report” means the police report itself. Hence cognizance can be taken on the report even if the investigating officer (by accident or design) does not record the statements of witnesses and documents [State of WB v Anwar Rehman, 2000 Cr LJ 2189 (Cal) : 2000 (2) Crimes 557 : 2000 (1) Cal LJ 354].

(s) “Police Station”.—The definition is the same as in section 3 of the Calcutta Police Act. The limits of a police station are fixed by the Government notification. Midstream of river cannot be the basis for exercise of criminal jurisdiction [Ramgobind, AIR 1960 P 342]. Beat-house is not a police station unless it is declared to be so [Srimanta, AIR 1960 C 519].

A Cyber Police Station was constituted in Kerala having sphere of authority over the entire State of Kerala for investigating offences coming under the Information Technology Act, 2000 only and nothing more than that. On a combined reading of the notification and explanation thereunder, it was very clear that the Cyber Police Station has the power to investigate offences coming under the Information Technology Act only and no other offences can be investigated by it. Necessarily, it follows that when none of the offences under the Information Technology Act have been disclosed in investigation, the Station House Officer, Cyber Police Station should send back the case to the Police Station under which the offences under the Indian Penal Code have allegedly been committed [Rajesh v State of Kerala, 2014 Cr LJ 204 : 2013 (4) Ker LT 139].

Declaration of the State Government in its wisdom and for any good reason can create a police station for a defined reason, i.e., for registering a case committed within a particular geographical limit and or in relation to the commission of offence of particular nature or offence committed by or against a particular class/persons or property and so on. The police station so created will be the police station having special jurisdiction [S.M. Kaligudd (Dr.) v State of Karnataka, 1998 Cr LJ 1183 (Kant) : 1998 (1) Kant LJ 2582 : 1998 (2) Cur Cr R 653].

(t) “Prescribed.”—The term “Prescribed” means prescribed by rules made under this Code.

(u) “Public Prosecutor.”—Public Prosecutor would also include Additional Public Prosecutor [Gidwar Aghan Oraon v State of Jharkhand, 2004 Cr LJ (NOC) 47 : 2003 (2) BLJR 1215 : 2004 AIR Jhar HCR 407]. Duties and functions (sections 301, 302, 321, 377, 378). Conduct of session trial (section 255). As to the duties of a Public Prosecutor when opening case or conducting prosecution (see notes to section 226 post).

The public prosecutor cannot act like the post office on behalf of the State Government. He is required to act in good faith, peruse the materials on record and form an independent opinion that the withdrawal of the case would really subserve the public interest at large. An order of the Government on the public prosecutor in this regard is not binding [Bairam Muralidhar v State of AP, AIR 2014 SC 3437 : (2014) 10 SCC 380 : 2014 (9) Scale 62 : 2014 Cr LJ 4242]. Appointment of a Special Public Prosecutor for trial does not make him eligible to prosecute the appeal before the High Court on behalf of the prosecuting agency, since the appointment of a Public Prosecutor as envisaged under section 24(1) Code of Criminal Procedure, 1973 in the High Court is different than the appointment of a Public Prosecutor for the District Courts [K. Anbazhagan v State of Karnataka, 2015 (5) Scale 577].

The holder of an office of the public prosecutor does not hold a civil post. In the appointment of a Public Prosecutor, the principle of master-servant does not apply [State of UP v Johri Mal, (2004) 4 SCC 714 : AIR 2004 SC 3800; Centre for Public Interest Litigation. v UOI, (2012) 3 SCC 117 : 2012 Cr LJ 1153; Sidhartha Vashisht v State, AIR 2010 SC 2352 : (2010) 6 SCC 1; Deepak Aggarwal v Kedar Kaushik, (2013) 5 SCC 277 : (2013) 2 SCC (Cri) 778]. See also section 24 post.

(v) “Sub-division”.—See section 7.

Page 22 of 24 [s 2] Definitions.—

(w), (x) Summons and warrant cases.—To have speedier disposal of cases the summons procedure for trial of offence has been extended to more offences by altering the meaning of a warrant case to a case relating to an offence punishable with death, imprisonment for life or imprisonment for a term exceeding two years instead of the limit of one year under the old Code. When an accused is charged under two sections, the sentences for the two offences should not be combined for application of section 2(x) [Sadashib, AIR 1956 B 168].

Offences are divided into cognizable and non-cognizable, but when the Code deals with procedure relating to trials it speaks of summons-case and warrant-case. This division is based on the nature and measure of punishment attached to the offence [Gaya Pd, 33 Cr LJ 573]. Procedure for trial of summons-cases (chapter 20); for warrant-cases (chapter XIX). The distinction has no bearing on the question whether a summons or a warrant shall issue in the first instance and whether the police may or may not arrest without warrant, which are dealt with in section 204 and in Schedule 1 Col. 4, respectively.

(wa) Victim.— Section 2(wa) was inserted in the Code of Criminal Procedure, 1973 vide the Code of Criminal Procedure, 1973 (Amendment) Act, 2008 (5 of 2009). According to section 2(wa), “victim” means a person who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged and the expression “victim” also includes his or her guardian or legal heir.

A victim of crime is a person who suffers any loss or injury as a result of the crime. Although the expression “any loss or injury” is an expansive expression, it appears that it has been used in the context of the person whose suffering is the direct and most proximate result of the crime. Section 2(wa) refers to a crime victim in the natural and ordinary sense as the person who directly and most proximately suffered the loss or injury but it would also include (a) his or her heirs in case he or she was dead; or (b) his or her guardian if he or she was a minor or of unsound mind or under some other disability [Chattar Singh v Subhash, 2011 (176) DLT 536: 2011 (123) DRJ 257 (Delhi) : 2011 (2) AD 252 (Del)].

The expression “legal heir” in relation to a victim refers to a person who is entitled to the property of the victim under the applicable law of inheritance [Chattar Singh v Subhash, 2011 (176) DLT 536: 2011 (123) DRJ 257 (Delhi) : 2011 (2) AD 252 (Del); D Sudhakar v Panapu Sreenivasulu, (AP) 2013 KHC 3115 : 2013 Cr LJ 2764]. It has been held that the expression “victim” as defined in section 2(wa) includes all categories of legal heirs for the purpose of engaging an Advocate under section 24(8) or to prefer an appeal under proviso to section 372 of the Code [Tata Steels Ltd v Atima Tube Products Ltd, 2013 (3) Crimes 613 (P&H) (DB); see also Chattar Singh v Subhash, 2011 (176) DLT 536 : 2011 (123) DRJ 257 (Delhi) (DB); Sree Gokulam Chit and Finance Co Pvt Ltd v Damodaran, 2013 (4) Ker LT 547 (Ker); Balasaheb Rangnath Khade v State of Maharashtra, 2012 (3) Bom C.R. (Cri) 632]. The father of the deceased was held to be a “victim” applying the principle of Muslim Law under which the person responsible for the death of another person from whom the first person is otherwise to inherit, would be disqualified from such inheritance and on this analogy the husband of the victim was treated as nonexistent and father of the victim was to be her legal heir [Kareemul Hajazi v State of NCT of Delhi, 2011 (2) AD 210 (Del)].

The brother of the deceased does not fall within the definition of “legal heir” and he is not entitled to prefer an appeal under section 372, Code of Criminal Procedure, 1973 against acquittal of the accused [D. Sudhakar v Panapu Sreenivasulu, 2013 Cr LJ 2764 (AP—DB) : 2013 (1) Andh LT(Cr) 81].

The question before Division Bench of Calcutta High Court was whether the petitioner whose wife died due to proved negligence of doctor falls within the meaning of victim as defined in section 2(wa) of the Code of Criminal Procedure, 1973. The Court held that undoubtedly the petitioner is a victim, hence entitled to seek judicial review. [Kunal Saha v State of West Bangal, AIR 2015 Cal 370 : LNIND 2015 CAL 1327].

The widow of deceased comes within the meaning of “victim”. [Roopendra Singh v State of Tripura, AIR 2017 SC1801 : 2017 (7) SCJ 170].

Page 23 of 24 [s 2] Definitions.—

Any person, who suffered any loss or injury of body or property by reason of an act or omission of the accused and a complainant in an offence under section 138 of the Negotiable Instruments Act, would come under the definition of the word victim. Though the word “complainant” may be absent from the proviso to section 372, by virtue of definition of victim under the said clause (wa) of section 2, the victim lady has a right to file an appeal before the learned Additional Sessions Judge in terms of the said proviso to section 372 [Ashok Kumar Srivastava v State of UP, 2012 (4) ALJ 489].

The complainant in a case instituted on a private complaint under section 190(a) read with section 200, Code of Criminal Procedure, 1973 though, can be claimed to be a “victim”, does not come under the proviso to section 372 of the Code of Criminal Procedure, 1973, since the context under section 378(4), Code of Criminal Procedure, 1973 requires to make a construction otherwise [Sree Gokulam Chit and Finance Co Pvt Ltd v T Krishnakumar, ILR 2013 (4) Kerala 866] Complainants in private complaints, who satisfy the definition of victim as contained in section 2(wa), Code of Criminal Procedure, 1973 are entitled to file an appeal as provided under the proviso to section 372, Code of Criminal Procedure, 1973 as a matter of right. In a complaint under section 138 of the Negotiable Instruments Act is also a victim and is entitled to the same benefit as the victim in any other case instituted on a private complaint [Shibu Joseph v Tomy K.J., 2013 (4) KHC 629 : 2013 (2) KLD 938 : ILR 2013 (4) Ker 866]. A combined reading of sections 372 and 378 and taking into consideration the expression “in this Code, unless the context otherwise requires” used in section 2, the context requires that a complainant in a complaint case be excluded from the purview of the definition of “victim” in section 2(wa). Therefore, in a case under section 138 of the Negotiable Instruments Act, 1881 the appeal would lie under section 378(4) of the Code and not under section 372 [Omana Jose v State of Kerala, 2014 (2) Ker LT 504 (Ker) (DB)].

No distinction can/should be made between a case instituted by a complainant/ informant with the police and by a complainant before the Court directly, for the purposes of determining the scope and ambit of the right of a victim to file an appeal under the said proviso to section 372, Code of Criminal Procedure, 1973. Consequently, the Court opined that, any person, covered under the definition of “victim” as contained in clause (wa) of section 2 of the Code, and thus getting a right to file an appeal in terms of proviso to section 372, cannot be held, in any way, handicapped in exercise of his/her said right by the provisions of section 378 of the Code specially in the background of disadvantageous status of victim in the present criminal justice delivery system in the country [Parmeshwar Mandal v State of Bihar, 2014 Cr LJ 1046 (Pat)].

Other words and expressions—”Person”.—

A company or body corporate is not a person within the meaning of Article 20(3) of the Constitution [Godrej Soaps Ltd v State of WB, (1991) Cr LJ 828 (Cal) : (1990) 94 Cal WN 723 : 1990 (1) LJ 153 (Cal— DB)].

“Police officer”.—Customs officers are not police officers [Asstt. Collector of Customs v Maria Rege, (1991) Cr LJ 229 (Bom) : 1991 (1) Bom CR 626].

“Remand”.—The word is not defined in the Code. It does not occur in section 167(2), or section 437. It denotes “re-committal to custody of a person who has been brought up in custody. [Deepak Mahajan v The Director of Enforcement, (1991) Cr LJ 1124 : (1990) 2 DL 150 : (1991) 31 ECC 104 (Del—FB) of five Judges].

Sentence.—Probation is not a sentence within the meaning of section 377(1) of the Code [State of UP v Nand Kishore Misra, AIR 1991 SC 763 : (1991) Cr LJ 456 (SC)].

Page 24 of 24 [s 2] Definitions.— 1

Inserted by the Code of Criminal Procedure (Amendment) Act, 1978 (45 of 1978), Section 2 (w.e.f. 18 December 1978).

2

Inserted by the Code of Criminal Procedure (Amendment) Act, 2008 (5 of 2009), Section 2 (w.e.f. 31 December 2009).

End of Document

[s 3] Construction of references.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER I PRELIMINARY

The Code of Criminal Procedure, 1973 CHAPTER I PRELIMINARY [s 3] Construction of references.— (1) In this Code,— (a) any reference, without any qualifying words, to a Magistrate, shall be construed, unless the context otherwise requires,— (i)

in relation to an area outside a metropolitan area, as a reference to a Judicial Magistrate;

(ii) in relation to a metropolitan area, as a reference to a Metropolitan Magistrate; (b) any reference to a Magistrate of the second class shall, in relation to an area outside a metropolitan area, be construed as a reference to a Judicial Magistrate of the second class, and, in relation to a metropolitan area, as a reference to a Metropolitan Magistrate; (c) any reference to a Magistrate of the first class shall,— (i)

in relation to a metropolitan area, be construed as a reference to a Metropolitan Magistrate exercising jurisdiction in that area;

(ii) in relation to any other area, be construed as a reference to a Judicial Magistrate of the first class exercising jurisdiction in that area; (d) any reference to the Chief Judicial Magistrate shall, in relation to a metropolitan area, be construed as a reference to the Chief Metropolitan Magistrate exercising jurisdiction in that area. (2) In this Code, unless the context otherwise requires, any reference to the Court of a Judicial Magistrate shall, in relation to a metropolitan area, be construed as a reference to the Court of the Metropolitan Magistrate for that area. (3) Unless the context otherwise requires, any reference in any enactment passed before the commencement of this Code,— (a) to a Magistrate of the first class, shall be construed as a reference to a Judicial Magistrate of the first class; (b) to a Magistrate of the second class or of the third class, shall be construed as a reference to a Judicial Magistrate of the second class; (c) to a Presidency Magistrate or Chief Presidency Magistrate, shall be construed as a reference, respectively, to a Metropolitan Magistrate or the Chief Metropolitan Magistrate; (d) to any area which is included in a metropolitan area, as a reference to such metropolitan area, and any reference to a Magistrate of the first class or of the second class in relation to such area, shall be construed as a reference to the Metropolitan Magistrate exercising jurisdiction in such area. (4) Where, under any law, other than this Code, the functions exercisable by a Magistrate relate to matters—

Page 2 of 5 [s 3] Construction of references.— (a) which involve the appreciation or shifting of evidence or the formulation of any decision which exposes any person to any punishment or penalty or detention in custody pending investigation, inquiry or trial or would have the effect of sending him for trial before any Court, they shall, subject to the provisions of this Code, be exercisable by a Judicial Magistrate; or (b) which are administrative or executive in nature, such as, the granting of a licence, the suspension or cancellation of a licence, sanctioning a prosecution or withdrawing from a prosecution, they shall, subject as aforesaid, be exercisable by an Executive Magistrate.

STATE AMENDMENTS IN SECTION 3 Andaman and Nicobar Islands (U.T.).—The following amendments were made by Regn. 1 of 1974, section 3 (w.e.f. 30 March 1974). Section 3-A.—(1) In its application to Union Territory of Andaman and Nicobar Islands, after section 3, section 3A shall be inserted as follows—

3-A. Special provision relating to Andaman and Nicobar Islands.—(1) References in this Code to—

(a) the Chief Judicial Magistrate shall be construed as references to the District Magistrate or, where the State Government so directs, also to the Additional District Magistrate; (b) a Magistrate or Magistrate of the first class or of the second class or Judicial Magistrate of the first class or of the second class, shall be construed as references to such Executive Magistrate as the State Government may, by notification in the Official Gazette, specify. (2) The State Government may, if it is of opinion that adequate number of persons are available for appointment as Judicial Magistrates, by notification in the Official Gazette, declare that the provisions of this section shall, on and from such day as may be specified in the notification, cease to be in force and different dates may be specified for different islands. (3) On the cesser of operation of the provisions of this section, every inquiry or trial pending, immediately before such cesser before the District Magistrate or Additional District Magistrate or any Executive Magistrate, as the case may be, shall stand transferred, and shall be dealt with, from the stage which was reached before such cesser, by such Judicial Magistrate as the State Government may specify in this behalf.

Arunachal Pradesh & Mizoram.—The following amendments were made by Gaz. of Ind., dt. 20 March 1974. Pt. II, Section 3(ii), Ext., p 421 (w.e.f. 1 April 1974). Section 3(5).—In its application to the Union Territories of Arunachal Pradesh and Mizoram this provision stands modified as under: (i) After sub-section (4) insert following sub-section (5)—

(5) Notwithstanding anything contained in the foregoing provisions of this sub-section—

Page 3 of 5 [s 3] Construction of references.—

(i) Any reference in such of the provisions of this Code, as apply to the Union Territories of Arunachal Pradesh and Mizoram, to the Court mentioned in column (1) of the Table below shall, until the Courts of Session and Courts of Judicial Magistrates are constituted in the said Union territories, be construed, as references to the Court of Magistrate mentioned in the corresponding entry in column (2) of that Table. Table

1

2

Court of Session or Sessions Judge or Chief Judicial Magistrate.

District Magistrate.

Magistrate or Magistrate of the First Class or Judicial Magistrate of the First Class.

Executive Magistrate.

(ii) the functions mentioned in Clause (a) of sub-section (4) shall be exercisable by an Executive Magistrate.

Nagaland.—The following amendments were made by Nagaland Gaz., dt. 19 June 1975, Extra. No. 15. Section 3(5).—Modifications of the provisions with reference to the State of Nagaland and Union territories of Arunachal Pradesh and Mizoram are as follows :— (a) After sub-section (4) following sub-section (5) which shall be deemed always to have been inserted:—

(5) Notwithstanding anything contained in the foregoing provisions of this section—

(i) any reference in such of the provisions of this Code as apply to the State of Nagaland to the Court and authority mentioned in column (1) of the Table below shall, until the Courts of Session and Court of Judicial Magistrates are constituted in the said areas, be construed as references to the Court and authority mentioned in corresponding entry in col. (2) of that Table. Table

1 Court of Session or Sessions Judge or Chief Judicial Magistrate.

2 District Magistrate.

Page 4 of 5 [s 3] Construction of references.— Magistrate or Magistrate of the First Class or Judicial Magistrate of the First Class.

Executive Magistrate.

(ii) references mentioned in sub-section (3) to a Judicial Magistrate and functions mentioned in sub-section (4) exercisable by a Judicial Magistrate and Executive Magis-trate shall be construed as references to and exercised by, Deputy Commissioner and Additional Deputy Commissioner and Assistant to Deputy Commissioner appointed under any law in force: Provided that an Assistant to Deputy Commissioner shall exercise such powers of a Judicial Magistrate as may be invested by the Governor.

COMMENTS Scope and application of section 3.— The new Code has brought about a scheme of separation of the judiciary from the executive by dividing the Magistrates into two categories: (1) Judicial (including Magistrates for metropolitan areas replacing Presidency Magistrates in Presidency towns) and (2) Executive, and by allocation of Magistrates’ functions under the Code between the said two catogories of Magistrates. Judicial Magistrates have been further classified into two classes : Judicial Magistrates of the first class and Judicial Magistrates of the second class. Powers of the Chief Metropolitan Magistrate and of the Metropolitan Magistrates for metropolitan areas are the same as those of the Chief Judicial Magistrate and of the Judicial Magistrate of the first class for each district respectively. Consequently upon the above changes made in the new Code this section has been inserted providing some rules of construction so that in this Code repetitive references to two categories of Magistrates may be avoided, and in respect of other laws containing references to Magistrates, it is ensured that they also fit in with the scheme of separation adopted in the Code. The expression, “any enactment passed before the commencement of the Code” in sub-section (3) does not include the repealed CrPC of 1898 [Somari Rai v Raghu Nath Prasad Sharma, (1977) Cr LJ 718 (Pat) : 1977 Pat LJR 635 : 1977 BBCJ 26 ]. In an enactment passed before the commencement of the 1973 Code, the Magistrate of 1st Class would necessarily mean a Judicial Magistrate [Madhusudan Mistri v Assistant Registrar of Co-op. Societies, (1978) Cr LJ 570 (Cal) : (1977) 4 Cal HN 1005]. Where an application for registration of birth of a child or of death of any man is moved under section 3(3) Code of Criminal Procedure, 1973, that should be disposed of by only a Judicial Magistrate and it can not be disposed of by the Executive Magistrate [B.G. Gangadharappa v Tahsildar Soraba Taluk, 1995 Cr LJ 2820 (Kant) : 1995 (1) KarLJ 258 ]. A reading the section 3(2) of the Code makes it clear that the powers of chief judicial magistrate in nonmetropolitan area and the powers of chief metropolitan magistrate are one and the same. The provisions of the Code of Criminal Procedure, 1973 cannot be excluded from consideration while dealing with SARFAESI Act. Therefore, the application of the provision of the Code of Criminal Procedure, 1973 would be in addition to and not in derogation of the provisions of SARFAESI Act and the provisions of the Code cannot be excluded from consideration while dealing with the SARFAESI Act. [T R Jewellery v M/s State Bank of India, AIR 2016 Hyd 125 (FB) : 2016 (2) Andh LD 164].

Page 5 of 5 [s 3] Construction of references.— Sub-section (4)—Functions of the Executive Magistrate.— The functions exercisable by the Executive Magistrates under the Code may be executive, administrative or judicial. But, when acting under any law other than Code of Criminal Procedure, 1973 they can exercise only executive or administrative functions. Similarly, Judicial Magistrates under any other law can exercise only judicial functions [Mammoo v State of Kerala, AIR 1980 Ker 18 : (1980) Cr LJ (NOC) 75 (Ker—FB)]. A District Magistrate (Executive) under section 3(4) can order the Sub-divisional Magistrate to enquire into the alleged torture of a person by a police officer [AP Police Officers Asscn v The Collector and District Magistrate, (1981) Cr LJ 641 (AP) : 1981 (2) Andh WR 139 : 1981 Mad LJ (Cri) 382]. Power of the Executive Magistrate.— As per section 3(4)(b) of the Code of Criminal Procedure, 1973 executive functions are to be dealt with by an Executive Magistrate and not by a Judicial Magistrate [Thankappan v State of Kerala, 1996 Cr LJ 1754 (Ker) : ILR (1966) 1 Ker 309 ]. End of Document

[s 4] Trial of offences under the Indian Penal Code and other laws.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER I PRELIMINARY

The Code of Criminal Procedure, 1973 CHAPTER I PRELIMINARY [s 4] Trial of offences under the Indian Penal Code and other laws.— (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained. (2) All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences. [s 4.1] Changes.— Section 4 corresponds to old section 5 verbatim. [s 4.2] Scope and application of section 4.— The Code of Criminal Procedure, 1973 is the parent statute which provides for investigation, inquiry into, and trial of cases by Criminal Courts of various designations. In the absence of a specific provision made in the statute indicating that offences will have to be investigated, inquired into, tried and otherwise dealt with according to that statute, the procedure under the Code will be applicable [AR Antulay v RS Nayak, (1984) 2 SCC 500 : AIR 1984 SC 718 : 1984 Cr LJ 647 ].

It is apparent from section 4 that the provisions of Code of Criminal Procedure, 1973 are applicable where an offence under the Penal Code or under any other law is being investigated, inquired into, tried or otherwise dealt with [Khatri, AIR 1981 SC 1068 : (1981) Cr LJ 597 (SC) : (1981) 2 SCC 493 ; Mirza Iqbal, AIR 1982 SC 60 : (1983) Cr LJ 154 ; Lajpat Rai Sehgal, (1983) Cr LJ 888 : 1983 (1) Crimes 737 : (1983) 23 DLT 314 : 1983 Hindu LR 243 (Del)]. Section 4(2) of the Code makes it clear that subject to the provisions in other enactments all offences under other laws shall also be investigated, inquired into, tried and otherwise dealt with under the provisions of the Code. This means that if the other enactment contains any provision which is contrary to the provisions of the Code, such other functions would apply in place of the particular provision of the Code. If there is no such contrary provision in other laws, then provisions of the Code would apply to the matters covered thereby [Gangula Ashok v State of AP, AIR 2000 SC 740 : 2000 Cr LJ 819 ].

Provisions of the Code would be applicable where an offence under the Indian Penal Code, 1860 or under any other law is being investigated, inquired into, tried or otherwise dealt with. These offences under any other law could also be investigated, inquired into or tried with according to the provisions of the Code except in case of an offence where the procedure prescribed thereunder is different from the procedure prescribed under the Code [Vishal Agrawal v Chhattisgarh State Electricity Board, 2014 (1) Crimes 181 (SC): 2014 Cr LJ 1317 (SC)]. In other words, if the manner, etc. of investigating into such offences has been provided in any enactment, such manner, etc. will prevail over the provisions in the Code, in case of a conflict between the two [Sandeep Indravadan Sagar v State of Maharashtra, 2013 (1) Bom CR (Cri) 487 : 2013 Cr LJ 1147 (Bom)].

Page 2 of 6 [s 4] Trial of offences under the Indian Penal Code and other laws.— The conjoint effect of sections 4(2) and 5 is that all offences, whether under Penal Code or under any other law, have to be investigated, inquired into, tried and otherwise dealt with according to the provisions of Code of Criminal Procedure, 1973, unless there be an enactment regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences in which case such an enactment will prevail over the Code and that the provisions of special or local law will prevail over those of Code of Criminal Procedure, 1973 unless there is a specific provision to the contrary [Sholapur Municipal Corp v Ramkrishna V. Relekar, AIR 1970 Bom 333 : 1970 Cr LJ 1330 ; Tiruvengadasami, AIR 1949 M 547, 557; Guruviah, AIR 1954 M 833, 843; Inder Sain v The State, 1981 Cr LJ 1116 (Del) : (1981) 20 DLT 302 : 1981 Chand Crl C 90]. The jurisdiction under section 4 is comprehensive. To the extent that no valid machinery is set up under any Act for the trial of any particular case, the jurisdiction of the ordinary Criminal Court cannot be held to have been excluded [Bhim Sen v State of UP, AIR 1955 SC 435 : 1955 Cr LJ 1010 : 1955 SCR 1444 ]. When a special Act makes a special offence and a special procedure, offence under it must be dealt with under that Act itself, e.g. Abkari Act [Kuppuswamy, 24 Cr LJ 335; Md. Usman, AIR 1933 SC 325 ]; Cantonments Act [Rajhumal, 48 Cr LJ 300]; Opium Act [Fernando, AIR 1929 M 604]; Defence of India Rules [Babulal, AIR 1954 Ori 225 ; Abdul Rasheed, infra; Re, P. Bapanaiah, AIR 1970 AP 47 : 1970 Cr LJ 199 ]; Foreign Exchange Regulation Act, 1947 [Nilratan, AIR 1965 SC 1 ]; Essential Commodities Act, 1955 [Abdul Rasheed, AIR 1967 My 231 ; Malepati Narayana v Station House Officer, AIR 1970 AP 29 : 1970 Cr LJ 32 ]; Forward Contracts (Regulation) Act, 1952 [Bullian & Agricultural Produce Exchange Pvt Ltd v The Forward Markets Commission, Bombay, AIR 1968 A 338 : 1968 Cr LJ 1325 ]; Customs Act, 1962 [Pukhraj Pannalal Shah v K.K. Ganguly, AIR 1968 Bom 433 : 1968 Cr LJ 1617 : 70 Bom LR 231]; Official Secrets Act, 1923 [Ramendra Singh v Mohit Choudhary, AIR 1969 Cal 535 : 1969 Cr LJ 1361 ]; W B Premises Tenancy Act, 1956 [Triloknath Lall v Malati Bibi Khetry, AIR 1967 Cal 145 : 1967 Cr LJ 342 ; Mathura, AIR 1969 C 170].

A criminal trial is not an enquiry into the conduct of an accused for any purpose other than to determine whether he is guilty of the offence charged. Conduct which destroys the presumption of innocence can alone by considered material [Ashok Kumar v State, 2010 Cr LJ 2329 (2340) : (2009) 159 DLT 383 (Del)].

Notification was issued by State Government excluding application of provisions of the new Code to the Scheduled area but provisions of the old Code (1898) alone are applicable in such a case where the murder of five women was committed by beating in a Scheduled area, the trial was conducted in a manner different from that prescribed by the old Code and therefore, conviction and sentence awarded against all the accused was quashed [Kundla Bojjireddy v State of AP, 1995 Cr LJ 699 (AP)].

If an act is an offence under two different Acts, it should be dealt with under the special Act, if it falls strictly within it rather than general law [Jiwaram, 33 Cr LJ 309]. When no special procedure is prescribed by special law, the procedure in the Code should be followed, e.g., prosecution under the Calcutta Municipal Act [Sishir, 30 Cal WN 598; Umesh, 43 CLJ 231; Prakash, A 1957 AP 469 ]; or offences under the Companies Act [Badrinarain, A 1961 Raj 48 ]. Section 4(2) governs and controls chapter 12 [Kuppuswami, supra]. As the Calcutta Suburban Police Act (2 of 1866) does not lay down any special procedure for the investigation of cognizable offences, by virtue of section 4 of the Code, the provisions of chapter 12 are applicable including sections 154, 161 and 162 with such consequences as are inevitable [Sunil, 59 Cal WN 1113].

Where the offence was alleged to have been committed by a foreign national in a foreign vessel outside territory of India about 850 miles away from the sea-shore, it was held that the Indian Courts had no jurisdiction to try the offence [Raymurd Genciaveo v State of Kerala, 2004 Cr LJ 2296 (2297) (Ker) : 2003 (4) Crimes 421 : 2003 (3) Ker LT 174 ].

The provision of Code of Criminal Procedure, 1973 and Indian Penal Code, 1860 are not applicable to the person who is not an Indian citizen and commits offence outside India [Fatma Bibi Ahmed Patel v State of Gujarat, (2008) 6 SCC 789 (793) : AIR 2008 SC 2392 : 2008 Cr LJ 3065 : (2008) 3 SCC (Cri) 151 ].

The Investigating Officer was member of raiding party and he sent FIR to Police Station and thereafter himself conducted investigation. The Apex Court held that the investigation has not been vitiated, therefore trial would

Page 3 of 6 [s 4] Trial of offences under the Indian Penal Code and other laws.— not also be vitiated especially when the Investigating Officer was not in any way personally interested to get appellant-accused convicted. [Vinod Kumar v State of Punjab, AIR 2015 SC 1206 : 2015 (1) Mad LJ (Cr) 288]. [s 4.3] Presiding Judge, duty of.— The Presiding Judge must cease to be a spectator and a mere recording machine [Zahira Habibullah Sheikh v State of Gujarat, 2006 Cr LJ 1694 (1707) (SC) : (2006) 3 SCC 374 : 2006 (2) Crimes 36 : AIR 2006 SC 1367 ].

In offences inviting extreme penalty of imprisonment for life or death, it is expected that every point urged would be dealt with by a razor sharp precision and sound logical reasoning and not on the ipse dixit of a judge [Gurcharan v State, 2010 Cr LJ 3339 (3346) (Delhi)]. Criminal Court while deciding criminal cases shall not be guided or influenced by the views or opinions of Judges on a private platform A Judge trying a criminal case has a sacred duty to appreciate the evidence in a seemly manner and is not to be governed by any kind of individual philosophy, abstract concepts, conjectures and surmises and should never be influenced by some observations or speeches made in certain quarters of society but not in binding judicial precedents [OMA v State of TN, AIR 2013 SC 825 : (2013) 3 SCC 440 : 2013 Cr LJ 997 (SC)]. [s 4.4] “Enactment”.— Rules framed under the Calcutta Rent Act were not an enactment within section 4(2) [Gobardhan, 25 Cal WN 661]. But rules under section 47, West Bengal Rent Control Act, 1950 have been held to be part of the enactment [Sengupta, AIR 1953 C 414]. [s 4.5] Fair trial.— Fair trial means a trial which is primarily aimed at ascertaining the truth. There can be no analytical, all comprehensive or exhaustive definition of the concept of fair trial. The trial to be fair would mean a trial before an impartial judge, a fair spectator and atmosphere of judicial claim [Zahira Habibullah Sheikh v State of Gujarat, 2006 Cr LJ 1694 (1708) (SC) : (2006) 2 SCC (Cr) 8 : JT 2006 (3) SC 399 ].

Fair trial means a trial in which bias or prejudice for or against the accused, the witnesses, or the cause which is being tried is eliminated. If the witnesses get threatened or are forced to give false evidence that also would not result in a fair trial. The failure to hear material witnesses is certainly a denial of fair trial [Himanshu Singh Sabharwal v State of MP, AIR 2008 SC 1943 (1947) : (2008) 3 SCC 602 : 2008 AIR SCW 2206]. [s 4.6] Delay in investigation.— The delay in the prosecution of the case against the petitioner-accused does not, in any event, appear to have caused any prejudice to him. He has not faced the trial for over two-and-a half decades and has enjoyed his freedoms. He has claimed that in the meantime, Sh. Rajiv Gandhi has passed away, with whom he was throughout present after the assassination of late Smt. Indira Gandhi. This fact by itself does not appear to be enough to conclude that the petitioner-accused has suffered prejudice. Merely because the evidence that late Sh. Rajiv Gnadhi may have led in support of the petitioner’s claim, is lost, the petitioner is not irreparably handicapped. He can still establish his defence by producing numerous other witnesses who may have been present with late Sh. Rajiv Gnadhi after the demise of late Smt. Indira Gandhi to condole her death. [Sajjan Kumar v CBI, 2011 Cr LJ 1225 (1243) : (2010) 171 DLT 120 (Del); see also Abdul Rehman Antulay v RS Nayak, 1992 (1) SCC 225 : 1991 (2) Scale 1273 ]. [s 4.7] Customs Act.— See notes to section 5. [s 4.8] “Otherwise dealt with”.— Refers to such dealing with offences as is provided for in the provisions of the Code apart from the provisions for investigation, inquiry or trial. Such provisions are to be found in the Code, (for instance) in chapters IV-B and V [RP Kapoor v S. Pratap Singh Kairon, AIR 1964 SC 295 : 1964 (1) Cr LJ 224 : 1964 (4) SCR 204 ]. It includes transfer under section 407 [Basdeo, 49 A 188]. [s 4.9] Contempt of Court.— Contempt of Court is not an offence within section 4(2) [Padma, AIR 1954 A 523 FB]. The words “any other law” do not cover contempt of a kind punishable summarily by the High Courts [Sukhdev Singh Sodhi v Chief Justice and Judges of The Pepsu High Court, 1954 SCR 454 : AIR 1954 SC 186 : 1954 Cr LJ 460 (Horniman, AIR 1945 A 1 overruled)].

Page 4 of 6 [s 4] Trial of offences under the Indian Penal Code and other laws.— [s 4.10] “Subject to any enactment”.— There in nothing in section 8 of the Bombay Prevention of Hindu Bigamous Marriage Act which excludes the application of section 4(2) and chapters 13 and 14 of the Code [Nirmalabai, AIR 1954 B 337]. Where the Suppression of Immoral Traffic in Women and Girls Act, 1956 does not make specific provisions as to procedure, the provisions of the Code of Criminal Procedure, 1973 are to apply [Prem, AIR 1959 A 206]. “Special police officer” and his assistants are the only persons competent to investigate offences under the Suppression of Immoral Traffic in Women and Girls Act, 1956 [Ramsing, AIR 1962 SC 63 : 1962 (2) SCR 694 ]. Offences under the Dowry Prohibition Act, 1961 are to be investigated, tried etc. under the provisions of the Code [Inder Sain v The State, 1981 Cr LJ 1116 (Del) : (1981) 20 DLT 302 : 1981 Chand Crl C 90]. “Magistrate” in section 3(34), Bengal Municipal Act and applicability of section 4(2) of the Code [Bholanath, AIR 1954 C 351]. [s 4.11] Precedent—Criminal case.— To imprint fact situation of one decided case upon another or observations made in the peculiar facts of a given case to any or every other case notwithstanding dissimilarity in effect and the distinctive features is legally impermissible. Each case, more particularly a criminal case, depends on its own facts and a close similarity between one case and another is not enough to warrant like treatment because a significant detail may alter the entire aspect. In deciding such cases, one should avoid the temptation to decide cases (as said by Crodozo) by matching the colour of one case against the colour of another. To decide, therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive [Parasa Raja Manikyala Rao v State of AP, AIR 2004 SC 132 : 2004 Cr LJ 390 : 2003 (4) Crimes 374 (SC)]. [s 4.12] Negotiable Instruments Act, 1881.— The provisions of section 219 of Code of Criminal Procedure, 1973 are applicable to offences investigated inquired into trial and otherwise dealt with in accordance with the provisions of any special enactment such as Negotiable Instruments Act [Kershi Perozsha Bhagvagar v State of Gujarat, 2007 Cr LJ 3958 (3962, 3963) (Guj—DB)]. The phrase “any other law” appearing in section 4(2) of the Code would encompass within the sweep of Negotiable Instrument Act also [Ibid.].

The provisions of section 155 of Code of Criminal Procedure, 1973 cannot be held applicable to the prosecution of an offence under section 138, Negotiable Instruments Act [Kanakhya Mohanta v State of Meghalaya, 2008 Cr LJ 3650 (3655) (Gau)]. [s 4.13] Narcotic Drugs and Psychotropic Substances Act (NDPS).— The provisions of the Code of Criminal Procedure, 1973 shall be applicable, insofar as they are not inconsistent with the NDPS Act, to all warrants, searches, seizures of arrests made under the Act. But when a Police Officer carrying on the investigation including search seizure or arrest empowered under the provisions of the Code of Criminal Procedure, 1973 comes across a person being in possession of the narcotic drugs or psychotropic substances then two aspects will arise. If he happens to be one of those empowered officers under the NDPS Act also then he must follow thereafter the provisions of the NDPS Act and continue the investigation as provided thereunder. If on the other hand he is not empowered, then the obvious thing he should do is that he must inform the empowered officer under the NDPS Act who should thereafter proceed from that stage in accordance with the provisions of the NDPS Act. But at this stage the question of resorting to section 50 and informing the accused person that if he so wants, he would be taken to a gazetted officer and taking to the gazetted officer thus would not arise because by then search would have been over [State of Punjab v Balbir Singh, AIR 1994 SC 1872 : 1994 Cr LJ 3702 : (1994) 3 SCC 299 : 1994 (1) Crimes 753 (SC)]. [s 4.14] Army Act.— The Army Act, 1950 does not expressly or impliedly bar jurisdiction of criminal Courts in respect of acts punishable both under that Act and under other laws [E. Cr. Barsay v State of Bombay, AIR 1961 SC 1762 : 1962 (2) SCR 195 : 1961 (2) Cr LJ 828; see sections 125, 126, 127 of Army Act]. See also notes to section 5.

The Apex Court held that the result of the interplay between sections 4 and 5 of the Code of Criminal Procedure, 1973 and sections 125 and 126 of the Army Act, 1950 makes it quite clear that the decision to try a person who has committed an offence punishable under the Army Act and who is subject to the provisions of Army Act does not always or necessarily lie only with the Army-the Criminal Court under the Code of Criminal Procedure, 1973 could also try the alleged offender in certain circumstances in accordance with the procedure

Page 5 of 6 [s 4] Trial of offences under the Indian Penal Code and other laws.— laid down in the Code of Criminal Procedure, 1973. [Extra Judicial Execution Victim Families Association, (EEVFAA) v UOI, AIR 2016 SC 3400 : 2016 (4) Mad LJ (Cr) 675]. [s 4.15] Excise Act.— Investigation and submission of a report by police in an offence under the Excise Act was held not illegal [Banavanth Lalu v The State, 1996 Cr LJ 1294 at p 1295 (AP) : 1996 (1) LS (AP) 73 : 1996 (1) Andh LD 126]. [s 4.16] Foreign Exchange Regulation Act, and Customs Act.— The operation of section 4(2) of the Code is straightway attracted to the area of investigation, inquiry and trial of the offences under special laws including the FERA and Customs Act and consequently section 167 of the Code can be made applicable during the investigation or inquiry of an offence under special Acts also inasmuch as there is no specific provision contrary to that excluding the operation of section 167 [Directorate of Enforcement v Deepak Mahajan, AIR 1994 SC 1775 : 1994 Cr LJ 2269 : (1994) 3 SCC 440 : 1994 (1) Crimes 892 (SC)].

Offences relating to storage, transportation, transaction, etc. of the minerals in contravention of the provisions of the Mines and Minerals (Development and Regulation) Act, 1957 and also the rules of the Jharkhand Mineral Dealers’ Rule, 2007 came within the preview of the said Act and Rules and as such any investigation, inquiry or trial shall be governed by the special law and not under general law [Manish Khemka v State of Jharkhand, 2009 Cr LJ 3770 (3772) (Jhar)]. [s 4.17] Drugs and Cosmetics Act, 1940.— General provisions to the competence of the Magistrate of the 1st class and that of the higher Courts based on the quantum of sentence would nevertheless apply to the trial of offences under the provisions of the Drugs and Cosmetics Act, 1940. Whatever jurisdiction is vested in a Court of Magistrate, 1st class, would necessarily be possessed by the Higher Court of the Court of Sessions or Additional Sessions Judge [S. Mohan v State of Rajasthan, 2008 Cr LJ 4382 (4384) (Raj) : 2008 Cri LR (Raj) 1084]. [s 4.18] Prevention of Corruption Act.— The prevention of Corruption Act, 1988 being a Special Act overrides the provisions of general law viz. the Code of Criminal Procedure, 1973. The provisions of the Code of Criminal Procedure, 1973 shall, in terms of section 5(3) of the 1988 Act, apply, when the matter is not covered by the Act of 1988 [VK Puri v CBI, 2007 Cr LJ 2929 (2931) (SC) : (2007) 3 SCC (Cri) 57 ].

The provisions of Code of Criminal Procedure, 1973 do not bar the application of section 178, Code of Criminal Procedure, 1973 [VK Puri v CBI, 2007 Cr LJ 2929 (2931) (SC) : (2007) 3 SCC (Cri) 57 ]. [s 4.19] Electricity Act.— The offences under the Electricity Act are also to be tried by applying the procedure contained in the Code [Vishal Agarwal v Chhattisgarh State Electricity Board, 2014 (1) Supreme 326 (336) : 2014 Cr LJ 1317 (SC); Shameer v State of Kerala, 2011 (3) Ker LT 469 (Ker)]. [s 4.20] Special Judge.— Where, by notification issued by the State Government, jurisdiction has been conferred on the Special Judge, Ropar to try cases registered all over the State, the Special Judge, Ropar would have jurisdiction to try cases registered at “Mohali”. The objection of the accused that the offence committed within the jurisdiction of Chandigarh cannot be tried by the Special Judge is not acceptable [Nirmal Singh Kahlon v State of Punjab, 2008 Cr LJ 4096 (4103) (P&H) : 2008 (2) Rec Cri R 208 [Parkash Singh Badal v State of Punjab, AIR 2007 SC 1274 : (2007) 1 SCC 1 followed]]. In view of the provisions of section 25 of MCOCA, the provisions of the said Act would have an overriding effect over the provisions of the Code and the Special Judge would not, therefore, be entitled to invoke the provisions of section 156(3), Code of Criminal Procedure, 1973 for ordering a special inquiry on a private complaint and taking cognizance thereupon, without traversing the route indicated in section 23 of MCOCA. In other words, even on a private complaint about the commission of an offence of organized crime under MCOCA cognizance cannot be taken by the Special Judge without due compliance with section 23, which starts with a non-obstante clause [Jamiruddin Ansari v Central Bureau of Investigation, 2009 Cr LJ 3961 ]. [s 4.21] Political issues.—

Page 6 of 6 [s 4] Trial of offences under the Indian Penal Code and other laws.— The political opponents and political issues have to be tackled at the hustings on the political platform. The legal provisions can hardly be an answer to tackle the political issues [Praveen Bhai Thogadia v State of Karnataka, 2003 Cr LJ 4502 : 2003 (6) Kant LJ 48 : AIR 2003 Kant HCR 2759 (Kant)]. [s 4.22] Scheduled castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989) (SC and ST Act).— A Special Judge under the SC and ST Act, 1989 cannot take cognizance of the offence under section 3(i)(xi) of the Act straight away without the case being committed to him [Vidyadharan v State of Kerala, AIR 2004 SC 536 : (2004) 1 SCC 215 : 2004 Cr LJ 605 : 2003 (4) Crimes 497 ; Moly v State of Kerala, AIR 2004 SC 1890 : 2004 Cr LJ 1812 (1814) : 2004 (2) Crimes 341 : (2004) 4 SCC 584 ]. Both these cases i.e., Vidyadharan v State of Kerala and Moly v State of Kerala, were declared per incuriam in Rattiram v State of MP, through Inspector of Police, AIR 2012 SC 1485 : 2012 Cr LJ 1769 (SC).

In Rattiram’s case, the Supreme Court held that though a special Court cannot take cognizance of an offence under the SC and ST Act without the case being committed to it, the objection relating to directly entertaining and taking cognizance by the Special Judge under the SC and ST Act, does not vitiate the trial and on the said ground alone, the conviction cannot be set aside or there cannot be a direction of retrial inasmuch as there is no failure of justice or no prejudice is caused to the accused [Rattiram v State of MP, through Inspector of Police, AIR 2012 SC 1485 : 2012 Cr LJ 1769 (SC)]. End of Document

[s 5] Saving.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER I PRELIMINARY

The Code of Criminal Procedure, 1973 CHAPTER I PRELIMINARY [s 5] Saving.— Nothing contained in this Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force. [s 5.1] Changes.— Section 5 incorporates the first saving provision of old section 1(2) with the substitution of the words “for the time being” for “now” after “local law”. As per sub-section (2) of sections 4 and 5 of the Code, in absence of any specific provision in the special Act, all offences under any other law or special Act shall be investigated, inquired into and tried in accordance with the provisions of the Code of Criminal Procedure, 1973 and the Code will apply [Sandeep Nair v UOI, 2014 (5) MPHT 76 (CG) : 2014 Cr LJ NOC 202]. [s 5.2] Scope and application of section 5.— In the absence of any specific provision to the contrary, the Code shall not affect any (1) special law (section 41 of the Indian Penal Code, 1860), or (2) local law (section 42, Indian Penal Code, 1860), or (3) special jurisdiction or power, or (4) special form of procedure prescribed by any other law for the time being in force.

In section 5, there are three components : firstly, the Code of Criminal Procedure, 1973 generally governs matters covered by it. Secondly, if a special or local law exists covering the same area, this latter law will be saved and will prevail. The third component is clinching. If there is a specific provision to the contrary, then that will override the special or local law. In the instant case, section 433A being such a specific law will hold even against special or local law [Maruram v UOI, AIR 1980 SC 2147 : 1980 Cr LJ 1440 : (1981) 1 SCC 107]. Section 5 is limited in scope and the saving thereunder operates only in the field covered by the Code and no more. Section 125 cannot be questioned with the help of section 5 [Iqbal Ahmed Khan v State of UP, (1980) Cr LJ (NOC) 80 (All)]. Provisions of Shariat Act, 1937 cannot be imported into section 125 for defeating the rights conferred therein by invoking section 5. Further, section 5 which is a saving clause can only save what is acquired or already provided for and it cannot prohibit or debar the Legislature from creating or conferring a new right by later legislation, and so Code of Criminal Procedure, 1973 being a later legislation additional rights conferred under section 125 cannot be defeated by Shariat Act, 1937 [Isak Chanda Palkar v Nyamatbi, (1980) Cr LJ 1180 (Bom) : 1980 Mah LJ 287 : 1980 CrLR (Mah) 466]. [s 5.3] Special provision.— The section does not enact anything in derogation of section 4(2). It only relates to the extent of the application of the Code in the matter of territorial and other jurisdiction [Guruviah, AIR 1954 M 833]. It saves any special or local laws or special jurisdictions or powers and declares that they remain unaffected by the Code unless there is any specific provision to the contrary. Such specific provision may be in the Code of Criminal Procedure, 1973 itself or in the special or local law, but in order to be effective it must completely cover the field of the other

Page 2 of 3 [s 5] Saving.— and must lay down a contrary rule so as to altogether nullify the other [Naresh, 46 Cal WN 180, 195]. If the particular provision is in the Code, it must in order to affect the special law, indicate in itself and not merely by implication that the special law is to be affected without necessarily referring to that “special law” or the effect on it intended to be produced in express terms [Baldeo, AIR 1940 A 263 FB, 41 Cr LJ 627]. Section 433-A is a specific provision to the contrary [Maruram v UOI, AIR 1980 SC 2147 : 1980 Cr LJ 1440 : (1981) 1 SCC 107 [Baldeo, supra approved]. [s 5.4] Army Act.— A number of persons from the armed forces were convicted by the general Court martial under the Army Act. As they had served some period of detention before they were convicted and sentenced, they applied for that period to be set off against the period of sentence under section 428 of the Code of Criminal Procedure, 1973. It was held that the Code of Criminal Procedure, 1973 did not affect any special law and the Army Act was a special law. The benefit of section 428, Code of Criminal Procedure, 1973 does not extend to the armed forces. The Army, Navy and Air force Acts are all complete and self-contained Codes providing for custody and detention, investigation, trial and punishment of offenders and were therefore special laws. These special laws provide that the sentence meted out by a Court martial starts from the day the proceedings are signed by the Presiding Officer or the Court. [Ajmer Singh, (1987) 2 SCJ 589 : (1987) 3 SCC 340 ].

Section 20(2) [see now section 12(2)] is a specific provision to the contrary [Central Talkies Ltd v Dwarka Prasad, AIR 1961 SC 606 : 1961 (1) Cr LJ 740 : 1961, (3) SCR 495]. Section 27 is not a specific provision to the contrary [Raghbir v State of Haryana, AIR 1981 SC 2037 : (1981) Cr LJ 1497 : (1981) 4 SCC 210 (SC)]. If a special Act prescribes a procedure slightly different from the procedure in the Code, it would not be invalid : see also section 4(2) [Krishna, AIR 1954 M 993].

The Army Act does not expressly bar the jurisdiction of criminal Courts in respect of acts or omissions punishable under the Act, if they are also punishable under any other law in force in India, nor is it possible to infer any prohibition by necessary implication [Barsay EG v State of Bombay, AIR 1961 SC 1762 : (1962) 2 SCR 195 : 1961 (2) Cr LJ 828 ]. [s 5.5] Evidence Act and Coroners Act.— The Evidence Act [Fauzdar, AIR 1933 A 440; Rannun, AIR 1926 L 88; Ramnares, 40 Cr LJ 559], or the Coroners Act [Jogeshwar, 31 C 1] is a special Act and its rules are unaffected by the Code. The Bihar Land Encroachment Act, 31 of 1950, is a special law [Brij Bhukan, AIR 1955, p 1]. Section 162 is a specific provision to the contrary [Hakam, 41 Cr LJ 591]. Whether or not section 162 is a specific provision to the contrary and repeals section 27 of the Evidence Act, a special law, was not decided by the Judicial Committee [Pakala Narayana, AIR 1939 PC 47 : 43 Cal WN 473 : 66 IA 66]. Amendment of section 162 Code of Criminal Procedure, 1973 (Vide Act 15 of 1941) settles this controversy. [s 5.6] Special jurisdiction and contempt.— “Special jurisdiction” is not defined in the Code. The High Courts’ power to punish for contempt is a special jurisdiction inherent in all Courts of Records. Hence the Code of Criminal Procedure, 1973 does not apply in contempt matters and the High Court can deal with them summarily and adopt its own procedure [Sukhdev Singh Sodhi v Chief Justice and Judges of the Pepsu High Court, AIR 1954 SC 186 : 1986 Cr LJ 460; Surendranath Banerjee v CJ of Bengal, (1883) 10 Cal 109 PC; see Article 215 of the Constitution].

Special jurisdiction e.g. under the Cattle Trespass Act [Budhan, 34 C 926]. “Special power” e.g. to transfer case under clause 29 Letters Patent [Sithapathi, 6 M 32 B].

The Code of Criminal Procedure, 1973 would not apply to proceedings under the Contempt of Courts Act, 1971 [State of UP v Radheyshyam, (1983) Cr LJ 1153 (All) : 1983 All WC 465 : 1983 All Crl R 236]. [s 5.7] Court martial.—

Page 3 of 3 [s 5] Saving.—

A person convicted by a Court-martial is not entitled to set off the period spent in custody under section 428 [Kasmir Singh v UOI, (1990) Cr LJ 1417 (P&H) : 1990 (1) All CrLR 151 per AP Chowdhari, J]. [s 5.8] Customs Act.— Where a person is produced before a Magistrate in accordance with section 104 of the Customs Act, 1962 and section 35 of the Foreign Exchange Regulation Act, the Magistrate has no power to commit the person to custody under section 167(2) Code of Criminal Procedure, 1973. Section 437 does not confer an implied power of remand on rejecting the bail application [Deepak Mahajan v The Director of Enforcement, (1991) Cr LJ 1124 (Del-FB of 5 Judges) : (1991) 31 ECC 104 : 1990 (2) DL 150]. [s 5.9] Section 4(2).— The Customs Act, 1962 contains no provision as to remand and bail. Hence, section 4(2), Code of Criminal Procedure, 1973 comes into operation [Senior Intelligence Officer Directorate of Revenue v M.K.S. Abu Bucker, (1990) Cr LJ 704 (Mad) : (1989) 23 EC 242 : 1989 Mad LW (Cri) 325 Arunachalam J].

End of Document

[s 6] Classes of Criminal Courts.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER II CONSTITUTION OF CRIMINAL COURTS AND OFFICES

The Code of Criminal Procedure, 1973 CHAPTER II CONSTITUTION OF CRIMINAL COURTS AND OFFICES [s 6] Classes of Criminal Courts.— Besides the High Courts and the Courts constituted under any law, other than this Code, there shall be, in every State, the following classes of Criminal Courts, namely— (i)

Courts of Session;

(ii) Judicial Magistrates of the first class and, in any metropolitan area, Metropolitan Magistrates; (iii) Judicial Magistrates of the second class; and (iv) Executive Magistrates. [s 6.1] Changes.— This section corresponds to old section 6 and deals with the revised set up of criminal Courts in every State. This revised set up and the allocation of magisterial functions between the two categories of Magistrates, Judicial under the control of the High Court and Executive under the control of the State Government, the new Code has provided for, make for the simple scheme of separation of the judiciary from the executive on an all India basis under this new Code. Judicial Magistrates have been further classified into two classes—Judicial Magistrates of the first class and Judicial Magistrates of the second class. Metropolitan Magistrates for metropolitan areas as they replace Presidency Magistrates in Presidency towns in the new Code, are included in the category of Judicial Magistrates of the first class. Executive Magistrates have not been further classified into any such classes because the functions to be performed by the Executive Magistrates under the new Code are very few and they hardly admit of being divided into more important functions that are to be performed by first class and less important functions that are to be left to junior Magistrates put in the second class. Broadly speaking, the functions which are essentially of judicial nature are for the Judicial Magistrates and the functions which are of police and administrative nature are for the Executive Magistrates as appears from the rules of construction contained in section 3(4). [s 6.2] Scope and application of section 6.— To constitute a Court as a Criminal Court it must be acting as a criminal Court. The orders that are revisable are those that are passed in “judicial proceedings” [R Subramaniam v Commissioner of Police, Madras, AIR 1964 Mad 185 : 1964 (1) Cr LJ 519 ]. Besides the High Court the Code mentions four classes of criminal Courts. To them may be added Honorary or Special Judicial, Special Metropolitan and Special Executive Magistrates (sections 13, 18 & 21), Panchayat Courts are constituted under special Acts.

The Judges of the Court of session are the Sessions Judge (who is also the District Judge), Additional Sessions Judge and Assistant Sessions Judge (section 9). [s 6.3] Magistrates.—

Page 2 of 2 [s 6] Classes of Criminal Courts.— Judicial Magistrates are graded according to the powers to pass sentence (see sections 29 and 30).

The Court of Chief Judicial Magistrate (CJM) is not a separate class of Court but is only a Court of Judicial Magistrate of the first class [Anil Kumar v Sindhu, 2009 Cr LJ 3530 (3532) (Ker) : 2009 (2) Ler LJ 152 : 2009 (2) Ker LT 359 ].

There is no Court of a Chief Judicial Magistrate as such within section 6, for a Chief Judicial Magistrate is a Judicial Magistrate of the first class who is appointed to be so under section 12(1) in a district by the High Court. But as enhanced powers have been given to a Chief Judicial Magistrate under section 29, in effect an additional Court which can try offences not punishable with death or imprisonment for a term not exceeding 7 years, has been brought into being, and as such it has been mentioned also as the Court of a Chief Judicial Magistrate within section 29. Such is also the position of the Chief Metropolitan Magistrate, appointed to be so by the High Court under section 17(1) [see section 3(1)(d)].

Executive Magistrates are without any such gradation. A District Magistrate is nothing but one of the Executive Magistrates appointed to be so in a district [see section 20(1)]. So also, a Sub-divisional Magistrate is nothing but one of the Executive Magistrates placed in charge of a sub-division [see section 20(4)], although executive functions as distinctly assigned to under the Code or exercisable under any of the laws by the District Magistrate and Sub-divisional Magistrate are to be discharged or exercised by the District Magistrate and Subdivisional Magistrate so appointed and placed in the charge of the Sub-division.

Under section 3(32), General Clauses Act, 1897, Magistrate shall include every person exercising all or any of the powers of a Magistrate under the Code. The term “(Judicial) Magistrate of the first class’ has not been defined. It is used in the Code to mean (Judicial) Magistrate exercising within his jurisdiction the highest magisterial powers which are ordinarily conferred [Jeevanji, 31 B 611, 623]. [s 6.4] Meaning of Court.— As to “Court”, see ante under heading “Judicial Proceeding”. Magistrates are not always Courts. Section 6 is not inconsistent with the idea that they may sometimes act in executive and administrative capacity and not as Courts [Vedappan, 42 M 69]. There is no Court of a district (Chief Judicial) Magistrate as such within section 6; it is only a Court of (Judicial) Magistrate of the first class and subordinate to the Court of session for the purpose of section 195(4) [Pilalal, AIR 1929 N 97 FB]. A municipal Magistrate is a Court constituted under any law other than this Code [Ramgopal, 52 C 962].

Session Judges have no power to impose the harsher variety of life sentence which is recognised by Swamy Shraddananda (2) v State of Karnataka, 2008 (13) SCC 767 : AIR 2008 SC 3040 : 2008 Cr LJ 3911 as an option available in law for the Courts to avoid the harshest, irreversible and incorrectable sentence of death [Unni v State, 2013 Cr LJ 2819 ]. [s 6.5] Coroners.— There are Courts of Coroners in the Presidency-towns constituted by the Coroners Act 4 of 1871; and Courts of Cantonment Magistrate in cantonments under the Cantonment Act 2 of 1894 (now repealed by the Cantonments Act, 2006). End of Document

[s 7] Territorial divisions.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER II CONSTITUTION OF CRIMINAL COURTS AND OFFICES

The Code of Criminal Procedure, 1973 CHAPTER II CONSTITUTION OF CRIMINAL COURTS AND OFFICES [s 7] Territorial divisions.— (1) Every State shall be a sessions division or shall consist of sessions divisions; and every sessions division shall for the purposes of this Code, be a district or consist of districts : Provided that every metropolitan area shall, for the said purposes, be a separate sessions division and district. (2) The State Government may, after consultation with the High Court, alter the limits or the number of such divisions and districts. (3) The State Government may, after consultation with the High Court, divide any district into sub-divisions and may alter the limits or the number of such sub-divisions. (4) The sessions divisions, districts and sub-divisions existing in a State at the commencement of this Code, shall be deemed to have been formed under this section. [s 7.1] Changes.— This section incorporates the provisions of old sections 7 and 8. Principal changes necessitated because of the scheme of separation of the judiciary and the executive adopted under the new Code are that—(1) every metropolitan area (which replaces Presidency towns) shall be a separate sessions division and district; (2) and that the State Government shall consult the High Court before altering the limits or number of sessions divisions and districts or making alteration in the sub-divisions and districts. [s 7.2] Scope and application of section 7.— The object of sub-section (1) is to lay down a rule governing the relations between sessions divisions and districts, that is, a sessions division shall not consist of half a district or even one and a half district, but shall consist of one district or a plurality of whole districts. District, in the Code is a district for the purposes of criminal administration [Arumugha, 54 M 943 FB]. Notification of the AP High Court posting an Additional Sessions Judge at a place other than district headquarter and directing him to dispose of such sessions cases and other criminal matters as made over to him by the District Judge did not amount to creating a Court of Addl. Sessions Judge within the same sessions division and hence did not contravene section 7 [G. Ranganayakulu v The Registrar, High Court of AP, (1980) Cr LJ 1162 (AP) : 1980 (1) Andh WR 447 : 1980 Mad LJ (Cri) 412].

In this case when an application for transferring the case from the Session Judge, Udaipur to the Session Judge, Jaipur was moved, the High Court found no ground for doing so; and merely on this ground impugned order can be set aside because the order was neither considered illegal nor having meaning of abuse of process nor doing injustice to any party by the High Court [Radhesh Chandra v State of Rajasthan, 1995 Cr LJ 3394 (Raj)].

Page 2 of 2 [s 7] Territorial divisions.— For appointment of Addl. Public Prosecutors for Courts of Metropolitan area the Metropolitan Sessions Judge should be consulted for preparing panel and not the District and Sessions Judge [Surapaneni Ram Prasad v V. Ramesh Chandra Bau, 1997 Cr LJ 677 (AP) : 1997 (1) Andh LT 78 : 1996 (7) SLR 448 ]. End of Document

[s 8] Metropolitan areas.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER II CONSTITUTION OF CRIMINAL COURTS AND OFFICES

The Code of Criminal Procedure, 1973 CHAPTER II CONSTITUTION OF CRIMINAL COURTS AND OFFICES [s 8] Metropolitan areas.— (1) The State Government may, by notification, declare that, as from such date as may be specified in the notification, any area in the State comprising a city or town whose population exceeds one million shall be a metropolitan area for the purposes of this Code. (2) As from the commencement of this Code, each of the Presidency-towns of Bombay, Calcutta and Madras and the city of Ahmedabad shall be deemed to be declared under sub-section (1) to be a metropolitan area. (3) The State Government may, by notification, extend, reduce or alter the limits of a metropolitan area but the reduction or alteration shall not be so made as to reduce the population of such area to less than one million. (4) Where, after an area has been declared, or deemed to have been declared to be a metropolitan area, the population of such area falls below one million, such area shall, on and from such date as the State Government may, by notification, specify in this behalf, cease to be a metropolitan area; but notwithstanding such cesser, any inquiry, trial or appeal pending immediately before such cesser before any Court or Magistrate in such area shall continue to be dealt with under this Code as if such cesser had not taken place. (5) Where the State Government reduces or alters, under sub-section (3), the limits of any metropolitan area, such reduction or alteration shall not affect any inquiry, trial or appeal pending immediately before such reduction or alteration before any Court or Magistrate, and every such inquiry, trial or appeal shall continue to be dealt with under this Code as if such reduction or alteration had not taken place. Explanation.—In this section, the expression “population” means the population as ascertained at the last preceding census of which the relevant figures have been published. [s 8.1] Scope and application of section 8.— As the presidency magistrates have been designated as metropolitan magistrates and presidency towns have been replaced by metropolitan areas in the new Code, this section has been enacted to empower the State Government (1) to declare by a notification any town or city in the State having population exceeding one million as a “metropolitan area” for appointment of “Metropolitan Magistrates” therein although the three old presidency towns of Calcutta, Bombay and Madras and the city of Ahmedabad where the special Magistrates functioning have been equated with the Presidency Magistrates by Ahmedabad City Courts Act, 1961, automatically became metropolitan areas as from the commencement of the new Code; and also (2) to extend, reduce or alter by notification the limits of a metropolitan area, so declared, provided that as a result of such reduction or alteration the population of the concerned metropolitan area does not become less than one million. The section also provides for the effect of the reduction in population below one million of any declared

Page 2 of 2 [s 8] Metropolitan areas.— metropolitan area and also of the reduction or alteration of the limits of any declared metropolitan area [vide sub-sections (4) and (5)]. The explanation in the section makes it clear that population mentioned in the section means the population as ascertained at the last preceding census of which the relevant figures have been published. End of Document

[s 9] Court of Session.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER II CONSTITUTION OF CRIMINAL COURTS AND OFFICES

The Code of Criminal Procedure, 1973 CHAPTER II CONSTITUTION OF CRIMINAL COURTS AND OFFICES [s 9] Court of Session.— (1) The State Government shall establish a Court of Session for every sessions division. (2) Every Court of Session shall be presided over by a Judge, to be appointed by the High Court. (3) The High Court may also appoint Additional Sessions Judges and Assistant Sessions Judges to exercise jurisdiction in a Court of Session. (4) The Sessions Judge of one sessions division may be appointed by the High Court to be also an Additional Sessions Judge of another division, and in such case he may sit for the disposal of cases at such place or places in the other division as the High Court may direct. (5) Where the office of the Sessions Judge is vacant, the High Court may make arrangements for the disposal of any urgent application which is, or may be, made or pending before such Court of Session by an Additional or Assistant Sessions Judge, or, if there be no Additional or Assistant Sessions Judge, by a Chief Judicial Magistrate, in the sessions division; and every such Judge or Magistrate shall have jurisdiction to deal with any such application. (6) The Court of Session shall ordinarily hold its sitting at such place or places as the High Court may, by notification, specify; but, if, in any particular case, the Court of Session is of opinion that it will tend to the general convenience of the parties and witnesses to hold its sittings at any other place in the sessions division, it may, with the consent of the prosecution and the accused, sit at that place for the disposal of the case or the examination of any witness or witnesses therein. Explanation.—For the purposes of this Code, “appointment” does not include the first appointment, posting or promotion of a person by the Government to any Service, or post in connection with the affairs of the Union or of a State, where under any law, such appointment, posting or promotion is required to be made by Government. [s 9.1] STATE AMENDMENTS IN SECTION 9 Orissa.—In its application to the State of Orissa, in Section 9, to sub-section (3), add the following proviso, namely:—

“Provided that notwithstanding anything to the contrary contained in this Code, an Additional Sessions Judge in a district or sub-division, other than the district or sub-division, by whatever name called, wherein the headquarters of the Sessions Judge are situated, exercising jurisdiction in a Court of Session shall have all the powers of the Sessions Judge under this Code, in respect of the cases and the proceedings in the Criminal Courts in that district or sub-division for the purposes of sub-section (7) of section 116, sections 193 and 194, clause (a) of section 209 and sections 409 and 449:

Page 2 of 5 [s 9] Court of Session.—

Provided further that the above powers shall not be in derogation of the powers otherwise exercisable by an Additional Sessions Judge or a Sessions Judge under this Code.”—Orissa Act 6 of 2004, Section 2.

Uttar Pradesh.—The following amendments were made by U.P. Act 1 of 1984, section 2 (w.e.f. 1 May 1984).

Section 9(5-A).—In its application to Uttar Pradesh in Section 9 after sub-section (5), insert the following subsection:—

(5-A) In the event of the death, resignation, removal or transfer of the Sessions Judge, or of his being incapacitated by illness or otherwise for the performance of his duties, or of his ab-sence from the place at which his Court is held, the senior-most among the Additional Sessions Judges and the Assistant Sessions Judges present at the place, and in their absence the Chief Judicial Magistrate shall without relinquishing his ordinary duties assume charge of the office of the Sessions Judge and continue in charge thereof until the office is resumed by the Sessions Judge or assumed by an officer appointed thereto, and shall subject to the provision of this Code and any rules made by the High Court in this behalf, exercise any of the powers of the Sessions Judge.

The following amendments were made by U.P. Act 16 of 1976, Sec. 2 (w.e.f. 28 November 1975).

Section 9(6).—In Section 9 in sub-section (6) insert following proviso:—

Provided that the Court of Session may hold, or the High Court may direct the Court of Session to hold its sitting in any particular case at any place in the sessions division, where it appears expedient to do so for considerations of internal security or public order, and in such cases, the consent of the prosecution and the accused shall not be necessary.

West Bengal.—The following amendments were made by W.B. Act No. 24 of 1988, section 3.

Section 9(3).—In sub-section (3) of Section 9 of the principal Act, the following proviso shall be added:—

Provided that notwithstanding anything to the contrary contained in this Code, an Addi-tional Sessions Judge in a subdivision, other than the sub-division, by whatever name called, wherein the headquarters of the Sessions Judge are situated, exercising jurisdiction in a Court of Session, shall have all the powers of the Sessions Judge under this Code, in respect of the cases and proceedings in the Criminal Courts in that sub-division, for the purposes of sub-section (7) of Section 116, Sections 193 and 194, Clause (a) of Section 209 and Sections 409, 439 and 449:

Provided further that the above powers shall not be in derogation of the powers otherwise exercisable by an Additional Sessions Judge or a Sessions Judge under this Code.

COMMENTS [s 9.2] Changes.—

Page 3 of 5 [s 9] Court of Session.— This section corresponds to old section 9. The provisions of old section 9 have been so revised that after the State Government establishes the Court of Session it is the High Court (and not the State Government) which shall appoint the Sessions Judge, and which is empowered to appoint Additional and Assistant Sessions Judges to exercise jurisdiction in the Court, to appoint the Sessions Judge of one division to be at the same time an Additional Sessions Judge of another sessions division, and also to direct at which place or places the Courts shall ordinarily hold its sittings. A provision has, however, been inserted as sub-section (5), enabling the High Court to take action for disposal of pending urgent application in a Court of Session by an Additional Sessions Judge or Assistant Sessions Judge or by a Chief Judicial Magistrate in the sessions division when there is sudden vacancy in the office of the Sessions Judge owing to demise or transfer and there is delay in the posting of his successor causing great hardship and inconvenience to the public, old section 17(4) [new section 10(3)] being obviously not applicable in such a situation as the previous incumbent has ceased to be Sessions Judge and there is no one in the Sessions Division to make formal orders.

The substitution of “the High Court” for “the State Government” in the provisions of the revised section has been made with a view to bringing it in line with the Constitution, in the light of the decision of the Supreme Court in Ranga Md, AIR 1967 SC 903 . As all the functions in relation to a Court of Session, except its initial establishment, and in relation to the Judges of the Court have been considered as functions of “control over the district Courts” within the meaning of Article 235 of the Constitution relevant powers have consequently been vested in the High Court.

Explanation has been added to clarify the intention that the provisions relating to the appointment of Sessions Judges and Magistrates are not repugnant to the provisions of the Constitution or any other law relating to the first appointment and posting of a person to the relevant service or post. That is to say, the appointment referred to in section 9 of the Code is to be understood not as the first appointment in the cadre of Sessions Judges, which is within the scope and power conferred on the Governor of the State by Article 233 of the Constitution, but as the process of assigning or posting officers already in the cadre to a specified Sessions Court. [s 9.3] Scope and application of section 9.— There can be only one Court of Session for each sessions division, and there can be only one Judge of that Court i.e. only one Sessions Judge in a sessions division. Under sub-section (3) High Court may appoint any number of Additional Sessions Judges and Assistant Sessions Judges to exercise jurisdiction in one Court of session. Thus, there is only one Court of Session in each sessions division sitting at different places and manned by a number of Judges. Additional and Assistant Sessions Judges exercise the powers of a Court of session subject to the limitation prescribed by law, but not being an independent Court of session they cannot receive and admit appeals, though they may hear them under section 381. Additional Sessions Judge does not constitute an Additional Sessions Court [see Kunjab, 1 Mad LJ 397 FB; Ijjatullah, 32 Cr LJ 842 : AIR 1931 C 190; Kamaleshwar, AIR 1957 P 375 FB]. Original jurisdiction of sessions Court [section 193]. Jurisdiction of Additional Sessions Judge [section 194; section 400].

While, ordinarily, the expression “Court of Sessions” would include not only the Sessions Judge, but also Additional or Assistant Judge, the expression Sessions Judge, unless the context otherwise, requires, cannot be treated to include the Additional or Assistant Sessions Judge while the Sessions Judge presides over the Sessions Division, an Additional or Assistant Sessions Judge merely exercises jurisdiction in a Court of Session. Whenever the Code intended that the power can be exercised only by a Sessions Judge, the code has used the expression Sessions Judge and not Court of Session [Bhuban Chandra Sharma v State of Meghalaya, 2007 Cr LJ 3315 (3327, 3328) (Gau) : (2007) 4 Gau LR 534 ].

The words “Sessions Judge” used in section 9, Code of Criminal Procedure, 1973 includes an Additional Sessions Judge and Assistant Sessions Judge appointed by the High Court under section 9(3) of the Code [Kamarudheen v Muvattupuzha Police Station, 2011 Cr LJ 1938 (1948) (Ker) (DB) : 2011 (1) Ker LT 342 ; Abdul Mannan v State of WB, (1996) 1 SCC 665 : AIR 1996 SC 905 ]. Such Additional Sessions Judge and Assistant Sessions Judge have all the powers and jurisdiction of the Sessions Judge to try the offences enumerated in the Code [Abdul Mannan v State of WB, (1996) 1 SCC 665 : AIR 1996 SC 905 ]. After the bail application is rejected by the Additional Sessions Judge/Assistant Sessions Judge in a case pending before

Page 4 of 5 [s 9] Court of Session.— him, the bail application would not be before the Sessions Judge [Ashok Kumar Yadav v UOI, 2007 Cr LJ (NOC) 133 : 2007 (1) ALJ 618 (All), overruling State of Rajasthan v Fakir Mohd., 2000 Cr LJ 4289 (Raj-DB) : 2000 (3) Raj LR 44 : 2000 (3) WLC 453 ].

Sentences which a Sessions Judge may pass (section 28). Subordination of Assistant Sessions Judges (section 10). Sessions Judge has jurisdiction only within his division [Shanmugan, 26 M 137] Sessions Judge making over an appeal to Additional Sessions Judge for convenient disposal of work does not lose his jurisdiction over it [Birju, 44 A 157].

There being no provision in the Code of Criminal Procedure, 1973 under which a civil Judge can be invested with powers of an Additional Sessions Judge, if he is intended to work as an Additional Sessions Judge an appointment has to be made under section 9 [Premnath v State of Rajasthan, AIR 1967 SC 1599 : 1967 Cr LJ 1569 ]. Appointment of Subordinate Judge as Assistant Sessions Judge must be by name. General notification appointing Subordinate Judge of a specific Court as Assistant Sessions Judge of a particular division is illegal [Shk Silar, AIR 1941 M 681].

If an appointment of Sessions Judge is subsequently declared invalid being in violation of Article 233 of the Constitution, judgments pronounced by him prior to such declaration are not void being saved by application of de facto doctrine [Gokaraju Rangaraju v State of AP, AIR 1981 SC 1473 : (1981) Cr LJ 876 : (1981) 3 SCC 132 (SC)]. [s 9.4] Sub-section (4)—Jurisdiction.— One office may exercise jurisdiction in two sessions divisions [Palanisamy, AIR 1957 M 351]. [s 9.5] Sub-section (5).— See “Changes” above. [s 9.6] Sub-section (6)—Place of trial.— It authorises the Court of Session (which includes Additional Sessions Judge or Assistant Sessions Judge) in any particular case to hold trial at any place within its jurisdiction for the convenience of the parties and witnesses with the consent of the prosecution and the accused. The intention is that, in proper cases the trial should be held at as near the place of occurrence as possible causing the minimum inconvenience to the parties and witnesses. It would have been best, if the balance of convenience had been left to the unfettered discretion of the Judge. The condition of obtaining the consent of both parties will in most cases hamper the interest of justice. What may be convenient to one party may be opposed as inconvenient to the other party and the Judge will be powerless, even, if the objection of a party is without any substance. Where the accused have not given consent it is not proper that the sessions trial should be conducted in jail unless a clear notification is issued by the High Court under sub-section 6 [Visheshwar Pathak v State, (1976) Cr LJ 521 (All) : (1975) 1 All LR 692 ]. Notification of AP High Court posting an Addl. Sessions Judge at a place other than district headquarter was not ultra vires powers of High Court under section 9(6) read with section 194 [G. Ranganayakulu v The Registrar, High Court of AP, (1980) Cr LJ 1162 (AP) : 1980 (1) Andh WR 447 : 1980 Mad LJ (Cri) 412].

Wherever the Court may be held, it should be an open Court; (see section 327).

Notification by the High Court for holding sitting of the Sessions Court in Tihar Jail, Delhi for Indira Gandhi murder case, is not illegal, as the Notification amounted to declaring Tihar Jail as one “place” (in addition to Tis Hazari and New Delhi), where the Sessions Court could hold its sittings [Kehar Singh v The State (Delhi Admn.), (1989) Cr LJ 1 : AIR 1988 SC 1883 : (1988) 3 SCC 609 : 1988 (3) Crimes 209 ]. The High Court has the jurisdiction to specify the place or places where ordinarily a Court of session may sit within its division. So far as any particular case is to be taken at a place other than the normal place of sitting it is only permissible under the second part of sub-clause (6) with the consent of the parties and that the decision has to be taken, not by the High Court, but by the Trial Court itself. But the direction given by the High Court to hold this particular trial within the premises of the Tihar Jail was upheld on the ground that the High Court has the power to notify under sub-section (6) Tihar Jail as one of the places where ordinarily a Sessions Court could hold its

Page 5 of 5 [s 9] Court of Session.— sittings [Kehar Singh v State (Delhi Administration), (1988) 3 SCC 609 : AIR 1988 SC 1883 ; see also Mohd. Shahabuddin v State of Bihar, (2010) 4 SCC 653 : (2010) 2 SCC (Cri) 904 .]

The power of the High Court under section 9(6) to notify a particular place or places where the Court of Sessions shall ordinarily hold its sitting is an administrative power unlike the power of the Court of Sessions under second part of section 9(6) which is judicial in nature [Mohd Shahabuddin v State of Bihar, (2010) 4 SCC 653 : 2010 (3) Scale 204 ].

It is clear that first requirement under section 9(6) of the Code is that the Sessions Judge must be of the opinion that it would tend to the general convenience of the parties and witnesses to hold its sittings at any other place in the Sessions Division than the place notified by the High Court. In the instant case there was nothing on the record to form such opinion by the learned Judge to hold the trial in camera. The word used in section 9(6) of the Code that the Sessions Court may hold its sittings at any other place in the Sessions Division, if it is of the opinion that it will tend to the general convenience of the parties and witnesses, then only with the consent of the prosecution and/or the accused persons it can have trial at any other place. Thus, even if the Sessions Judge was of such opinion to hold the trial in camera, then also, without the consent of the prosecution or the accused persons, he could not have done it. The trial Judge is also bound to act in accordance with law as provided under section 9(6) of the Code [State of Gujarat v Rajubhai Dhambirbhai Banya, 2004 Cr LJ 771 : 2004 (1) Guj LR 404 : 2004 (1) Guj LH 262 : 2004 (15) Ind LD 450 (Guj)]. End of Document

[s 10] Subordination of Assistant Sessions Judges.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER II CONSTITUTION OF CRIMINAL COURTS AND OFFICES

The Code of Criminal Procedure, 1973 CHAPTER II CONSTITUTION OF CRIMINAL COURTS AND OFFICES [s 10] Subordination of Assistant Sessions Judges.— (1) All Assistant Sessions Judges shall be subordinate to the Sessions Judge in whose Court they exercise jurisdiction. (2) The Sessions Judges may, from time to time, make rules consistent with this Code, as to the distribution of business among such Assistant Sessions Judges. (3) The Sessions Judge may also make provision for the disposal of any urgent application, in the event of his absence or inability to act, by an Additional or Assistant Sessions Judge, or, if there be no Additional or Assistant Sessions Judge, by the Chief Judicial Magistrate, and every such Judge or Magistrate shall be deemed to have jurisdiction to deal with any such application. [s 10.1] Changes.— This section dealing with the subordination of Assistant Sessions Judge corresponds to sub-sections (3) and (4) of old section 17, with this change that in place of the District Magistrate, the Chief Judicial Magistrate has been substituted as the person who, if there be no Additional or Assistant Sessions Judge, may formally be ordered by the Sessions Judge to dispose of any urgent application before the Court during his absence or inability to act. [s 10.2] Scope and application of section 10.— The Additional Sessions Judge has not been made subordinate to the Sessions Judge. The Code strictly limits the power of an Additional Sessions Judge to such as are conferred upon him by the High Court or by the Sessions Judge. Power to grant or cancel bail could be conferred on him under section 10. Where no such power is conferred, the Additional Sessions Judge cannot grant or cancel bail under section 437(5) [Maung Ba, AIR 1930 R 335]. The Sessions Judge can only confer powers on an Additional Sessions Judge when he is absent or unable to act. He cannot pass a general order authorising the Additional Sessions Judge to deal with bail applications [Kalu, AIR 1954 Raj 22 ]. Sessions Judge is competent to assign bail applications for disposal to Addl. Sessions Judge [The State v Mohinder Singh, AIR 1964 Punj 543 : (1964) (2) Cr LJ 728 ]. Where there is no proper application or urgency, section 10(3) does not give an Additional Sessions Judge jurisdiction to transfer a case to another Court of equal jurisdiction (transfer to his own file) [Daulatram, AIR 1931 A 435].

Disposal of bail application. In event of his absence or inability to act the Sessions Judge has power to make provision for disposal of urgent applications and bail applications by the Additional Sessions Judge [Paramjeet Singh v State, 1997 Cr LJ 522 (Del) (1996) 64 DLT 22 : 1997 (1) Rec Cr R 305].

Reference of Court of Sessions vis-à-vis such Magistrate is Court of Sessions exercising jurisdiction relating to said district in which he ordinarily holds Court. [Prafulla Chandra Ghadei v UOI, 1997 Cr LJ 201 (Ori) : (1997) 83 Cut LT 1 : 1996 (11) OCR 244].

Page 2 of 4 [s 10] Subordination of Assistant Sessions Judges.—

An Additional Chief Judicial Magistrate can be authorised by the Sessions Judge under section 10(3). By virtue of section 12(2), he is, for the purpose of section 10(3), a Chief Judicial Magistrate [Kheraj v State of Rajasthan, (1984) Cr LJ 408 1983 Raj LR 670 : 1983 Raj LW 482 (Raj)]. [s 10.3] Summary of changes in sections 11 to 23.— These are revised sections in place of analogous provisions contained in old sections 10 to 21. In view of the scheme of separation of the Judicial Magistrates from the Executive Magistrates adopted under the new Code, separate detailed provisions have been necessitated and made as respects—(i) Judicial Magistrates for every district as to the creation of their Courts, their appointments, their local jurisdiction, their sub-ordination and also as to the appointment of special Magistrates (vide sections 11 to 15); (ii) Metropolitan Magistrates for every metropolitan area for similar matters (vide sections 16 to 19); (iii) Executive Magistrates in every district and metropolitan areas for similar matters (vide sections 20 to 23).

On the judicial side in every district, there will be a Chief Judicial Magistrate who will be a senior Magistrate with all the powers of a judicial Magistrate of the first class and certain additional powers; and a number of judicial Magistrates of the first class and judicial Magistrates of the second class; and, where necessary, an Additional Chief Judicial Magistrate out of the Judicial Magistrates of the first class with all or any of the powers of the Chief Judicial Magistrate as the High Court may direct (section 12). The authority to appoint all these judicial Magistrates have been vested in the High Courts [section 11(2)]. The High Court has also been empowered to designate any Judicial Magistrate of the first class in any sub-division as sub-divisional Judicial Magistrate for exercising only specified powers of supervision [section 12(3)]. The High Court has also been further empowered to confer magisterial powers on any judicial officer functioning as a Judge of a Civil Court so as to provide for situations where it might not be necessary or possible to appoint full time Magistrates [section 11(3)]. But the State Govt. has been given the powers to determine the number of Courts of judicial Magistrates and their location because various administrative and financial considerations will have to be taken into account. The State Government has, however, been required to exercise this power also in consultation with the High Court so that an adequate number of Magistrates Courts are established in all districts and at suitable places [section 11(1)].

The Chief Judicial Magistrate’s important function will be to guide, supervise and control over the work of Judicial Magistrates of the district. The power to define the local limits of the jurisdiction of the judicial Magistrates has been given to him, subject to the control of the High Court (section 14). And while every Chief Judicial Magistrate has been made subordinate to the Sessions Judge, every other Judicial Magistrate (including Additional Chief Judicial Magistrate), subject to the general control of the Sessions Judge, has been made subordinate to the Chief Judicial Magistrate who has been empowered also to make rules and give special orders from time to time as to the distribution of the business among the Judicial Magistrates subordinate to him (section 15).

On the judicial side, in every metropolitan area there will similarly be a Chief Metropolitan Magistrate who will be a senior Metropolitan Magistrate and whose powers and functions will be the same as those of the Chief Judicial Magistrate in a district; and a number of Metropolitan Magistrates, of whom one may also be appointed as an Additional Chief Metropolitan Magistrate as the High Court may direct (section 17). As regards subordination, every Metropolitan Magistrate (but barring Additional Chief Metropolitan Magistrate) has been made subordinate to the Chief Metropolitan Magistrate subject to the general control of the Sessions Judge, while the Chief Metropolitan Magistrate and every Additional Chief Metropolitan Magistrate have been made subordinate to the Sessions Judge. The power to define the extent of subordination of the Additional Chief Metropolitan Magistrate to the Chief Metropolitan Magistrate has, however, been left to the High Court. But the Chief Metropolitan Magistrate has been empowered to make rules and give special orders as to the allocation of business to an Additional Chief Metropolitan Magistrate, as he has been so empowered to make rules and give special orders as to the distribution of business among the Metropolitan Magistrates subordinate to him (section 19). As in the case of Court of Judicial Magistrate in a district, the power to determine the number of Courts of Metropolitan Magistrates to be established in any metropolitan area has also been given to the State Government to be exercised in consultation with the High Court [section 16(1)] and the authority to appoint all the Metropolitan Magistrates, as in the case of appointment of all Judicial Magistrates in a district, has also been invested in the High Court [section 16(2)].

Page 3 of 4 [s 10] Subordination of Assistant Sessions Judges.—

These “appointments” of all Judicial Magistrates including Metropolitan Magistrates by the High Court, as referred to in these sections, has obviously the same connotation as in section 9 as respect the appointment of Judges of the Court of Session by the High Court as the Explanation to the said section 9 has made it clear as discussed already under section 9.

The power to appoint Special Judicial Magistrates (under which Honorary Magistrates and Benches of such Magistrates could be appointed under the old Code) has been also retained both in the districts and in the metropolitan areas (where they will be designated as Special Metropolitan Magistrates), on the same lines with the following substantial modifications effected, namely (a) the system of appointment of Benches of Magistrates has been abolished; (b) the persons to be appointed as Special Magistrates will be either persons holding Government posts or those who held such Govt. posts [For meanings of post and difference with service see Article 311 of the Constitution]; (c) the High Court has been given power to prescribe qualifications and experience in relation to legal affairs to be satisfied of a person before he is appointed as a Special Magistrate; (d) the High Court has been made the appointing authority and the appointment is not to exceed a period of one year at a time; and (e) the sentencing power of special Magistrate will be the power of a second class Magistrate. Accordingly old sections 15, 16 and 19 have been omitted and old section 14 has been suitably revised (vide section 13 dealing with Special Judicial Magistrates and section 18 dealing with Special Metropolitan Magistrates).

On the executive side for performing magisterial functions allotted to the Executive Magistrates in every district and also in every metropolitan area, (as every such metropolitan area will be a separate district, it is quite conceivable that in an area declared to be a metropolitan area in future the Government may find it convenient to create sub-divisions also) there will be the same set up, namely, the District Magistrate, the Additional District Magistrate (where necessary), the Sub-divisional Magistrate and the Executive Magistrates without any class distinction. The State Govt. is the authority both to determine the number of these executive Magistrates, and also to appoint them [section 20(1), (2), (4)]. The District Magistrate will define the local limits and jurisdiction of the executive Magistrates subject to the control of the State Govt. (section 22). All Executive Magistrates in the District (excepting the Additional District Magistrate) will be subordinate to the District Magistrate, and, while exercising functions in a Sub-division, will also be subordinate to the Sub-divisional Magistrate, subject to the control of the District Magistrate. The District Magistrate has been empowered to make rules or give special orders as to the distribution of business among the executive Magistrates and also as to the allocation of business to an Additional District Magistrate (section 23). Provision under the old Code relating to temporary vacancies in the office of the District Magistrate has also been retained [section 20(3)].

The power to appoint Special Executive Magistrates with conferment of such of the powers as are exercisable by Executive Magistrates under the new Code has also been given to the State Govt. to enable it to meet special needs in relation to particular areas and for the performance of particular duties by insertion of a provision in this regard (section 21). Incidentally it may, however, be noted that the institution Justice of the Peace, provisions regarding which were contained in old sections 22 and 23 has been done away with by deleting them.

In regard to metropolitan area, a special provision has also been made [section 20(5)] enabling the State Government to confer, under any law for the time being in force, on a Commissioner of Police all or any of the powers of an Executive Magistrate so that wherever such conferment of power is authorised by law in any State this may be done and where this is done, the system (as at present obtains in Presidency towns without having any Executive Magistrate) may continue. But when this is not done, each Metropolitan area should have an Executive District Magistrate.

Appellate power against order of confiscation of vehicle for carrying forest produce without transit pass is conferred on Sessions Judge as persona designata and not as judge presiding over Court of Sessions. Sessions Judge has to decide the appeal by himself. It cannot be allotted to the Addl. Sessions Judge [Pandurang Laxman Naik v State of Goa, 2006 Cr LJ (NOC) 60 (Bom) : 2006 (1) AIR Bom R 497].

Page 4 of 4 [s 10] Subordination of Assistant Sessions Judges.— End of Document

[s 11] Courts of Judicial Magistrates.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER II CONSTITUTION OF CRIMINAL COURTS AND OFFICES

The Code of Criminal Procedure, 1973 CHAPTER II CONSTITUTION OF CRIMINAL COURTS AND OFFICES [s 11] Courts of Judicial Magistrates.— (1) In every district (not being a metropolitan area), there shall be established as many Courts of Judicial Magistrates of the first class and of the second class, and at such places, as the State Government may, after consultation with the High Court, by notification, specify: 1[Provided

that the State Government may, after consultation with the High Court, establish, for any local area, one or more Special Courts of Judicial Magistrates of the first class or of the second class to try any particular case or particular class of cases, and where any such Special Court is established, no other Court of Magistrate in the local area shall have jurisdiction to try any case or class of cases for the trial of which such Special Court of Judicial Magistrate has been established.] (2) The presiding officers of such Courts shall be appointed by the High Court. (3) The High Court may, whenever it appears to it to be expedient or necessary, confer the powers of a Judicial Magistrate of the first class or of the second class on any member of the Judicial Service of the State, functioning as a Judge in a Civil Court. [s 11.1] STATE AMENDMENTS IN SECTION 11 Andaman and Nicobar Islands, Dadra and Nagar Haveli and Lakshadweep.—The following amendments were made by Regn. 1 of 1974 (w.e.f. 30 March 1974).

Section 11(3).—In its application to the Union territories to which this Regulation extends, in sub-section (3) shall be substituted—for the words “any member of the Judicial Service of the State, functioning as a Judge in a Civil Court”, the words “any person discharging the functions of a Civil Court”.

Bihar.—The following amendments were made by Bihar Act 8 of 1977, section 2.

Section 11(4).—After sub-section (3) of Section 11 insert the following sub-section and shall be deemed always to have been inserted:—

(4) The State Government may likewise establish for any local area one or more Courts of Judicial Magistrate of the first class or second class to try any particular cases or particular classes or categories of cases.

Page 2 of 5 [s 11] Courts of Judicial Magistrates.—

Haryana.—The following amendments were made by Haryana Act 16 of 1976, section 2 (w.e.f. 24 February 1976).

Section 11(1A).—After sub-section (1) of Section 11 insert following sub-section and shall always be deemed to have been inserted:—

(1A) The State Government may likewise establish as many Courts of Judicial Magistrates of the first class and of the second class in respect to particular cases or to particular class or classes of cases, or to cases generally in any local area.

[Refer also provisions on validation given with Haryana State amendment under section 13.]

Kerala.—The following amendments were made by Kerala Act 21 of 1987.

In Section 11, after sub-section (1), the following sub-section shall be inserted namely:—

(1A) The State Government may likewise establish as many special courts of Judicial Magistrates of First Class in respect to particular cases or to a particular class or particular classes of cases or in regard to cases generally, in any local area.

(2) The amendments made by sub-section (1) shall be, and shall be deemed to have been, in force for the period commencing from the 2nd day of December, 1974 and ending with the 18th day of December, 1978.

Validation.—Any notification issued by the State Government on or after the 2nd day of December, 1974 and before the commencement of the Code of Criminal Procedure (Amendment) Act, 1978 (Central Act 45 of 1978) purporting to establish any special Court of the Judicial Magistrate of the first class having jurisdiction over more than one district shall be deemed to have been issued under section 11 of the said code as amended by this Act and accordingly such notification issued and any act or proceeding done or taken or purporting to have been done or taken by virtue of it shall be deemed to be and always to have been valid.”—Kerala Act 21 of 1987, s. 2.

Punjab.—The following amendments were made by Punjab Act No. 9 of 1978 (w.e.f. 14 April 1978).

Section 11(1).—In Section 11 after sub-section (1) insert the following sub-section and shall always be deemed to have been inserted:—

(1A) The State Government may likewise establish as many Courts of Judicial Magistrates of the first class in respect to particular cases or to particular classes of cases or in regard to cases generally, in any local area.

Page 3 of 5 [s 11] Courts of Judicial Magistrates.—

Rajasthan.—The following amendments were made by Rajasthan Act No. 10 of 1977, section 2 (w.e.f. 3 March 1977).

Section 11(1).—After sub-section (1) of Section 11 insert following new sub-section:—

(1A) The State Government may likewise establish as many Courts of Judicial Magistrates of the first class and of the second class in respect to particular cases, or to a particular class or particular classes of cases, or in regard to cases generally, in any local area.

Uttar Pradesh.—The following amendments were made by U.P. Act No. 16 of 1976, section 3.

Section 11(1-A).—After sub-section (1) of Section 11 insert following sub-section and be deemed always to have been inserted:—

(1A) The State Government may likewise establish as many Courts of Judicial Magistrates of the first class and of the second class in respect to particular cases, or to a particular class or particular classes of cases, or in regard to cases generally, in any local area.

[Refer also provision on validation given along with U.P. Amendment under Section 13]. COMMENTS [s 11.2] Changes.— Cf. old section 12. See summary of changes in sections 11 to 23.

1978 Amendment.—To sub-section (1) the proviso has been added to empower the State Government to establish Special Courts of Judicial Magistrates having jurisdiction throughout any local area and to confer on such Courts exclusive jurisdiction to try any particular case or class of cases. [s 11.3] Scope and application of section 11.— In every district (not being a metropolitan area) Courts of Judicial Magistrates of the first class and of the second class shall be established by the State Government after consultation with the High Court. It may be noted that as only consultation and not concurrence with the High Court is required, there is no obligation on the part of the Government to accept the High Court’s opinion.

Under section 11(1), the State Government may after consultation with the High Court, notify the place of sitting of Judicial Magistrates. Sessions Judge cannot shift the place of sitting of a Judicial Magistrate [Haseen Siddiqui v State of UP, 2014 Cr LJ 1207 (1209) (All) : 2014 (1) All LJ 543].

The Judicial Magistrates shall, however, be appointed by the High Court and under sub-section (3), the High Court has been empowered to confer power of a Judicial Magistrate of the first class or second class on any member of judicial service functioning as a Judge in a Civil Court.

Page 4 of 5 [s 11] Courts of Judicial Magistrates.—

There being no provisions in section 11 similar to sub-sections (4) and (5) of section 9, the High Court cannot appoint a judicial Magistrate 1st class of a Court as Additional Judicial Magistrate 1st class of another Court, and cannot make similar arrangements for disposal of urgent applications when a Court of Judicial Magistrate falls vacant. So Addl. Munsif and Judicial Magistrate 1st class of one Court placed in charge of another Court cannot entertain complaints to take cognizance of offences [Venkangouda, 1975 Mad LJ (Cr) 699 (K)].

“Appoint” refers to conferment of magisterial powers [Parvathi, AIR 1957 M 41; Sita Devi, AIR 1963 Tri 31 ].

The Supreme Court has directed that no judicial officer should visit a police station on his own, except when it is necessary in connection with his official duties. When such a visit is necessary in connection with his duties he must give prior intimation to the District and Sessions Judge [Delhi Judicial Service Association v State of Gujarat, (1991) Cr LJ 3086 (SC) : AIR 1991 SC 2176 : (1991) 3 JT 617 : (1991) 3 SCJ 456 : (1991) 4 SCC 406 : 1991 (3) Crimes 232 ].

High Court held that the power of issuing warrant against any accused vested in the trial Court and the Court which occasionally see the case of said trial Court as in charge of that, has no power to issue warrant [Pramod Kumar Patnaik v State of Orissa, 1995 Cr LJ 3573 (Ori)]. [s 11.4] Court of Special Judicial Magistrate (UP).— State Government is empowered to establish Special Court of Judicial Magistrate at particular place and later can establish another Court at another place. [Bhagwandas Khandelwal v CBI, 1998 Cr LJ 651 (All) : 1997 All LJ 2174 : (1997) 35 All Cr C 451]. [s 11.5] Special Courts established extending over several districts.— According to the proviso to sub-section (1), the Court of the Special Magistrate will have jurisdiction to try offences committed in any district. If the offence is triable by a Sessions Court, the sessions Court within whose jurisdiction the offence was committed will have jurisdiction to try the case. But as regards appeal or revision against the order of the Magistrate it will lie to the sessions Court to which the Magistrate is subordinate [Lakhpat Singh v The State, 1980 Cr LJ 776 (Raj)]. Where the State Government by a notification under subsection (1) establishes three different Courts of Judicial Magistrates for three districts with the specification of places at which they are to function, the High Court under sub-section (2) may appoint only one Judicial Magistrate for acting in all the three districts. If such a Magistrate tries a case arising out of one district at his headquarters in another district, the forum for revision will be the sessions Court of the place where the offence is committed and not the sessions Court of the headquarters [D.C. Varma v Bhagwan Ji Virji, (1976) 17 GLR 412 ].

A special Court (Economic Offences) created by notification under Proviso to section 11 jurisdiction to try offences under Indian Penal Code, 1860 also and is not confined only to offences under the Import and Exports (Control) Act, 1947 (since repealed) [Dy Chief Controller of Imports and Exports v Roshanlal Agarwala, AIR 2003 SC 1900 : 2003 Cr LJ 1698 : (2003) 4 SCC 139 : 2003 (2) Crimes 43 (SC)]. [s 11.6] Proviso.— Establishment of one Court for entire State to try economic offences is within the power of the State Government. After the amendment of section 2 (f) by Act 45 of 1978, the State Government is empowered to declare the whole of the State or any part as local jurisdiction [Bharat Traders v The Special Chief Judicial Magistrate, (1988) Cr LJ 1117 (All) : 1988 All Cr R 245 : 1988 All WC 607].

Notification issued for establishment of Special Court by the Government after consultation with the High Court. The said notification was amended by a subsequent notification without any such consultation. Held that the subsequent notification was illegal and invalid [Moreshwar v State, 2001 Cr LJ 1765 : 2001 All LJ 638 : (2001) 43 All Cr C 73 (All)]. [s 11.7] Power of judicial officer to visit Police Station.—

Page 5 of 5 [s 11] Courts of Judicial Magistrates.— No Judicial Officer should visit a Police Station on his own except in connection with his official and judicial duties and functions. If it is necessary for a Judicial Officer or a Subordinate Judicial Officer to visit the Police Station in connection with his official duties, he must do so with prior intimation of his visit to the District and Sessions Judge [Delhi Judicial Service Assocn, Tis Hazari Court v State of Gujarat, AIR 1991 SC 2176 : 1991 Cr LJ 3086 : (1991) 4 SCC 406 : 1991 (3) Crimes 232 (SC)].

1

Inserted by the Code of Criminal Procedure (Amendment) Act, 1978 (45 of 1978), Section 3.

End of Document

[s 12] Chief Judicial Magistrate and Additional Chief Judicial Magistrate, etc.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER II CONSTITUTION OF CRIMINAL COURTS AND OFFICES

The Code of Criminal Procedure, 1973 CHAPTER II CONSTITUTION OF CRIMINAL COURTS AND OFFICES [s 12] Chief Judicial Magistrate and Additional Chief Judicial Magistrate, etc.— (1) In every district (not being a metropolitan area), the High Court shall appoint a Judicial Magistrate of the first class to be the Chief Judicial Magistrate. (2) The High Court may appoint any Judicial Magistrate of the first class to be an Additional Chief Judicial Magistrate, and such Magistrate shall have all or any of the powers of a Chief Judicial Magistrate under this Code or under any other law for the time being in force as the High Court may direct. (3) (a) The High Court may designate any Judicial Magistrate of the first class in any sub-division as the Sub-divisional Judicial Magistrate and relieve him of the responsibilities specified in this section as occasion requires. (b) Subject to the general control of the Chief Judicial Magistrate, every Sub-divisional Judicial Magistrate shall also have and exercise, such powers of supervision and control over the work of the Judicial Magistrates (other than Additional Chief Judicial Magistrates) in the sub-division as the High Court may, by general or special order, specify in this behalf. [s 12.1] STATE AMENDMENTS IN SECTION 12 Nagaland.—The following amendments were made by Notification No. Law 170/74 Leg. dated 3 July 1975.

In sub-sections (1), (2) and (3) the words “High Court” shall be substituted by the words “State Government” wherever it occurs.

Uttar Pradesh.—The following amendments were made by UP Act 1 of 1984, s. 3 (w.e.f. 1 May 1984).

Section 12(4).—In section 12 after sub-section (3) insert following sub-section (4):—

(4) Where the Office of the Chief Judicial Magistrate is vacant or he is incapacitated by illness, absence or otherwise for the performance of his duties, the senior most among the Additional Chief Judicial Magistrate and other Judicial

Page 2 of 3 [s 12] Chief Judicial Magistrate and Additional Chief Judicial Magistrate, etc.— Magistrates present at the place, and in their absence the District Magistrate and in his absence the seniormost Executive Magistrate shall dispose of the urgent work of the Chief Judicial Magistrate.

COMMENTS [s 12.2] Changes.— (1) Sub-sections (1) and (2) correspond to sub-sections (1) and (2) of old section 10.

(2) Sub-section (3) has been added. See summary of changes in sections 11-23. [s 12.3] Scope and application of section 12.— In every district (not being a metropolitan area) one Chief Judicial Magistrate shall be appointed by the High Court.

The High Court may also appoint a Judicial Magistrate of the first class as an Additional Chief Judicial Magistrate in a district with all or any of the powers of the Chief Judicial Magistrate. Ordinarily an Additional Chief Judicial Magistrate being Magistrate of the first class has power to pass a sentence of imprisonment for a term not exceeding 3 years or of fine not exceeding five thousand rupees (now ten thousand rupees), or both (section 29). Under sub-section (2) an Additional Chief Judicial Magistrate can be invested by the High Court with any of the powers of a Chief Judicial Magistrate and hence an Additional Chief Judicial Magistrate may be invested by the High Court to pass any sentence except a sentence of death or of imprisonment for life or of imprisonment for a term exceeding 7 years (section 29).

An Additional Chief Judicial Magistrate is not the same as the Chief Judicial Magistrate but a different authority although he may be invested with all or any of the powers of a Chief Judicial Magistrate [sub-section (2)].

An Additional Chief Judicial Magistrate has, however, been made subordinate to the Chief Judicial Magistrate like every other Judicial Magistrates in the district being included in the expression every other Judicial Magistrate in section 15(1). [s 12.4] Sub-divisional Magistrate.— The creation of a post of Sub-divisional Judicial Magistrate (section 12(3)) goes contrary to the view expressed by the Law Commission of India [41st Report, paras 29]. The Law Commission saw no need for any such office. [s 12.5] Additional Chief Judicial Magistrate.— A person must first be appointed as Magistrate of the first class before being appointed as Additional Chief Judicial Magistrate [Ladhuram, AIR 1957 C 667; Chandi Charan Lala v Tax Recovery Officer, AIR 1968 Cal 257 , 259 : 1968 Cr LJ 732 ]. [s 12.6] Rulings under the 1898 Code.— As in the judicial side the Chief Judicial Magistrate and the Additional Chief Judicial Magistrate [replace District Magistrate and Additional District Magistrate] in the old Code some rulings under the old Code regarding them are given here for whatever may be their worth. The scheme of section 10 (now section 12) leaves no room for doubt that the District Magistrate and the Additional District Magistrate are two different and distinct authorities and even though the latter may be empowered under sub-section (2) to exercise all or any of the powers of a District Magistrate by no stretch of reasoning can an Additional District Magistrate be called the District Magistrate in sub-section (1) [Harichand Aggarwal v Batala Engineering Co Ltd, AIR 1969 SC 483 : (1969) 1 SCJ 872 : 1969 Cr LJ 803 ]. Where District Magistrate is directed to deliver proceeds of sale of subject matter of offence to the accused on his furnishing security bond to the satisfaction of the District Magistrate, Additional District Magistrate can accept the bond [Debabrata Bandopadhyay v State of WB, AIR 1969 SC 189 : (1969) 1 SCJ 533 : 1969 Cr LJ 401 ]. [s 12.7] Sub-section (1)—Appointment.— For meaning of “appoint” see notes under section 11. Appointment of a person as Additional District (now Chief Judicial) Magistrate without first appointing him as first class Magistrate is invalid [Ladhuram, AIR 1957 C 667].

Page 3 of 3 [s 12] Chief Judicial Magistrate and Additional Chief Judicial Magistrate, etc.— [s 12.8] Sub-section (2)—Powers.— Powers of a District (Chief Judicial) Magistrate not only under existing laws but under other laws which may be passed in future, may be invested [Kalu, A 1953 B 401]. An Additional District (Additional Chief Judicial) Magistrate appointed by a notification under section 10(2) [now section 12(2)] must be regarded as possessing the power of District (Chief Judicial) Magistrate under any other law [Central Talkies Ltd v Dwaria Prasad, AIR 1961 SC 606 : 1961 (3) SCR 495 : 1961 (1) Cr LJ 740 e.g., under section 84 (1) Cantonments Act [Cantt. Bd, AIR 1962 Pu 490 ].

Section 12(2) of the Code of Criminal Procedure, 1973 confers on Additional Chief Judicial Magistrate the same powers as that on a Chief Judicial Magistrate. Hence, transfer of the case by the Additional Chief Judicial Magistrate after taking cognizance of the case to transferee Magistrate for inquiry and disposal is perfectly in tune with the provisions of the Code [Vijay Dhanuka v Najima Mamtaj, 2014 Cr LJ 2295 (2298) (SC)]. [s 12.9] Sub-section (3).— Merely because the CJM is invested with the power of making over cases under section 410, Code of Criminal Procedure, 1973, it cannot be said that his local jurisdiction extends to the entire districts. The aforementioned powers are given to him for the effective exercise of the general control and supervision over his subordinate Magistrates [Anil Kumar v Sindhu, 2009 Cr LJ 3530 (3533) (Ker) : 2009 (2) Ker LT 359 : 2009 (2) Ker LJ 152 ]. End of Document

[s 13] Special Judicial Magistrates.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER II CONSTITUTION OF CRIMINAL COURTS AND OFFICES

The Code of Criminal Procedure, 1973 CHAPTER II CONSTITUTION OF CRIMINAL COURTS AND OFFICES [s 13] Special Judicial Magistrates.— (1) The High Court may, if requested by the Central or State Government so to do, confer upon any person who holds or has held any post under the Government, all or any of the powers conferred or conferrable by or under this Code on a Judicial Magistrate 2[of the first class or of the second class, in respect to particular cases or to particular classes of cases, in any local area, not being a metropolitan area:] Provided that no such power shall be conferred on a person unless he possesses such qualification or experience in relation to legal affairs as the High Court may, by rules, specify. 2. Such Magistrates shall be called Special Judicial Magistrates and shall be appointed for such term, not exceeding one year at a time, as the High Court may, by general or special order, direct. 3[(3) The High Court may empower a Special Judicial Magistrate to exercise the powers of a Metropolitan Magistrate in relation to any metropolitan area outside his local jurisdiction.] [s 13.1] STATE AMENDMENTS IN SECTION 13 Andhra Pradesh.—Following Amendments were made by A.P. Act No. 2 of 1992, S.2.

(1) In Section 13, in sub-section (2) for the words “not exceeding one year at a time” the words “not exceeding two years at a time” shall be substituted.

(2) In Section 13 sub-section (2) proviso shall be added namely:—

Provided that any person who is holding the office of Special Judicial Magistrate at the commencement of the Code of Criminal Procedure (Andhra Pradesh Amendment) Act, 1992 and has not completed sixty five years of age shall continue to hold office for a term of two years from the date of his appointment.

Bihar.—Following amendment made by Bihar Act 8 of 1977, section 3 (w.e.f. 10 January 1977).

Page 2 of 4 [s 13] Special Judicial Magistrates.— In Section 13 of the said Code for the words “in any district” the words “in any local area” shall be substituted and shall be deemed to have been always substituted.

Haryana.—The following amendments were made by Haryana Act No. 16 of 1976, sections 3 and 4 (w.e.f. 24 February 1976).

Section 13.—In Section 13 of the principal Act,—

(a) for the words “second class”, the words “first class or second class” shall be substituted and shall always be deemed to have been substituted; (b) for the words “in any district” the words “in any local area” shall be substituted and shall always be deemed to have been substituted.

Validation.—Notwithstanding anything contained in any judgment, decree or order of any Court, any notification issued by the Government before the commencement of this Act purporting to establish any Court of Judicial Magistrate having jurisdiction over more than one district shall be deemed to have been issued under Section 11 read with Section 13 of the principal Act as amended by this Act and be deemed to be and always to have been valid.

Himachal Pradesh.—The following amendments were made by Himachal Pradesh Act 40 of 1976, section 2 (w.e.f. 13 November 1976).

Section 13.—In Section 13 for the words “in any district” the words “in any local area” shall be substituted and shall be deemed to have been always substituted.

Punjab.—The following amendments were made by Punjab Act No. 9 of 1978, section 3 (w.e.f. 14 April 1978).

Section 13(1).—In Section 13, sub-section (1), for the words “second class”, the words “first class or second class” and for the words “in any district”, the words “in any local area” shall be substituted.

Uttar Pradesh.—The following amendments were made by U.P. Act No. 16 of 1976, sections 4 and 11.

Section 13.—In Section 13 for the words “second class” the words “first or second class” shall be substituted and for words, “in any district” words “in any local area” shall be substituted.

Validation.—Notwithstanding any judgment, decree or order of any Court—

(a) any notification of the State Government issued before Nov. 28, 1975 purporting to establish any Court of Judicial Magistrates having jurisdiction over more than one district shall be deemed to have been

Page 3 of 4 [s 13] Special Judicial Magistrates.— issued under Section 11 read with Section 13 of the said Code as amended by this Act and be deemed to be and always to have been valid. COMMENTS [s 13.2] Changes.— Sub-sections (1) and (2) correspond to sub-sections (1) and (2) of old section 14. See summary of changes in sections 11 to 23 above.

1978 Amendment.—(1) In sub-section (1) the words of the first class or of the second class, in respect to particular cases or to particular classes of cases, in any local area have been substituted for “of the second class, in respect to particular cases or to particular classes of cases or to cases generally, in any district”. The substitution of the words in sub-section (1) enables Special Judicial Magistrates to exercise jurisdiction over any local area and enables conferment on them the powers of a Magistrate of the first class. It is to be noted that powers are now to be conferred in respect of particular cases or particular classes of cases, as the words in cases generally have been omitted.

(2) Sub-section (3) has been inserted which is explicit in itself. [s 13.3] Scope and application of section 13.— The object is to meet emergencies or to have any special case tried with the help of a Special Judicial Magistrate. The High Court is accordingly empowered on request by the Central or State Government to appoint a person as a Special Judicial Magistrate or to appoint honorary Magistrate. The word “Court” in section 197(4) is not the same as a “person” in this section—respective scopes of the powers under section 197(4) and section 13 [Gopalan M.K. v State of MP, AIR 1954 SC 362 : 1955 SCJ 534 : 1954 Cr LJ 1012 ]. Confidence in Court is a vital element in the administration of justice. A special Judge or a special venue is capable of being used to destroy this confidence, and except where there is supreme need, the ordinary course of justice is best left untouched [Lakshman, AIR 1931 B 313; Lalta, AIR 1952 A 70]. Where the Special Judicial Magistrate is to try the case entirely under the normal procedure, the section is not hit by Article 14 of the Constitution [Gopalan M.K. v State of MP, AIR 1954 SC 362 : 1954 Cr LJ 1012 ; Haridas, AIR 1949 A 82]. A notification under section 13 fixing one town as the place of sitting of a Judicial Magistrate whose jurisdiction extends over five districts may be an obstacle to the administration of justice in the case of a person of limited resources [Ibadat, AIR 1956 A 448].

Special Judge appointed under Prevention of Corruption Act, 1988 is not competent to try offences other than those which are punishable under the Prevention of Corruption Act [State of Assam v Keising James, 2007 Cr LJ 897 (900, 901) : 2007 (50) All Ind Cas 988 (Gau)]. [s 13.4] Sub-section (1)—Any person.— According to the Madras High Court the words “any person who holds or has held any post under the Government” introduce a restriction which infringes Article 14 of the Constitution [Narayanswami M. v State of TN, (1984) Cr LJ 1583 : 1984 Writ LR 39 (Mad)]. [s 13.5] Jurisdiction.— The Code contemplates the appointment of a Special Judicial Magistrate having jurisdiction within the entire district or a certain area within it [Lalta, AIR 1952 A 70]. If nothing is said about the cases to be tried, it is understood that all cases triable by law by a Judicial Magistrate invested with the powers of a Special Judicial Magistrate may be tried by him. But the powers and local area must be defined [Lakshmi, 24 PR 1901, Cr]. Special Courts appointed by competent authority ousts the jurisdiction of ordinary Courts unless its jurisdiction is kept intact [Re, Bhurekhan Walimohammad Khan, AIR 1967 MP 94 : 1967 Cr LJ 381 ; Samaila, AIR 1917 L 138]. Meaning of “cases” [Emperor v K.R. Bhat, 33 Cr LJ 68]. Meaning of “to try the case” [Emperor v Jehangir Ardeshir Cama, AIR 1927 B 501]. [s 13.6] Sub-section (1)—Powers.— Judicial officer invested with the powers of a Special Judicial Magistrate and summary powers for six months cannot exercise that power after the expiry of the term [Munir, AIR 1951 A 488]. [s 13.7] Appointment of Special Judicial Magistrate.—

Page 4 of 4 [s 13] Special Judicial Magistrates.— The High Court is to ensure that after regular Magistrates are relieved of petty cases to be dealt with by Special Magistrates, they would dispose of a large number of more serious cases [Kadra Pahadiya v State of Bihar, AIR 1997 SC 3750 : (1997) 4 SCC 287 : 1997 Cr LJ 2232 : 1997 (1) Crimes 289 (SC)]. The idea underlying the provision for the appointment of special Judicial Magistrate/Special Metropolitan Magistrates under section 13(1) and 18(1) of the Code of Criminal Procedure, 1973 respectively, is to relieve the Courts of the burden of trying those cases which could be disposed of by such Magistrates. The period for which such appointments may be made must not exceed one ear at a time, which shows that these are not appointments by way of regular entry into service, and are meant to be short duration appointments to reduce the burden of pendency in regular Courts. The appointments should view the call as a social obligation and not employment, indeed as a social service to society [Kadra Pahadiya v State of Bihar, AIR 1997 SC 3750 : 1997 Cr LJ 2232 : (1997) 4 SCC 287 : 1997 (1) Crimes 289 (SC)].

2

Substituted by the Code of Criminal Procedure (Amendment) Act, 1978 (45 of 1978), Section 4(i).

3

Inserted by the the Code of Criminal Procedure (Amendment) Act, 1978 (45 of 1978), Section 4(ii).

End of Document

[s 14] Local jurisdiction of Judicial Magistrates.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER II CONSTITUTION OF CRIMINAL COURTS AND OFFICES

The Code of Criminal Procedure, 1973 CHAPTER II CONSTITUTION OF CRIMINAL COURTS AND OFFICES [s 14] Local jurisdiction of Judicial Magistrates.— (1) Subject to the control of the High Court, the Chief Judicial Magistrate may, from time to time, define the local limits of the areas within which the Magistrates appointed under Section 11 or under Section 13 may exercise all or any of the powers with which they may respectively be invested under this Code: 4[Provided

that the Court of a Special Judicial Magistrate may hold its sitting at any place within the local area for which it is established.] (2) Except as otherwise provided by such definition, the jurisdiction and powers of every such Magistrate shall extend throughout the district. 5[(3) Where the local jurisdiction of a Magistrate, appointed under Section 11 or Section 13 or Section 18, extends to an area beyond the district, or the metropolitan area, as the case may be, in which he ordinarily holds Court, any reference in this Code to the Court of Session, Chief Judicial Magistrate or the Chief Metropolitan Magistrate shall, in relation to such Magistrate, throughout the area within his local jurisdiction, be construed, unless the context otherwise requires, as a reference to the Court of Session, Chief Judicial Magistrate, or Chief Metropolitan Magistrate, as the case may be, exercising jurisdiction in relation to the said district or metropolitan area.] [s 14.1] STATE AMENDMENT IN SECTION 14 Maharashtra.—The following amendments were made by Maharashtra Act No. 23 of 1976, section 2 (w.e.f. 9 June 1976).

Section 14-A.—After Section 14 of the Code of Criminal Procedure, 1973 (2 of 1974), in its application to the State of Maharashtra the following section shall be inserted:—

14A. Investing Judicial Magistrates with jurisdiction in specified cases or local area.— The High Court may invest any Judicial Magistrate with all or any of the powers conferred or conferrable by or under this Code upon a Judicial Magistrate in respect to particular cases or to a particular class or classes of cases or in regard to cases generally in any local area consisting of all or any of the districts specified by it in this behalf.

COMMENTS [s 14.2] Changes.— Section 14 corresponds to old section 12. See summary of changes in sections 11 to 23.

Page 2 of 3 [s 14] Local jurisdiction of Judicial Magistrates.— 1978 Amendment.—(1) To sub-section (1) the proviso has been added to facilitate the holding of mobile Courts.

(2) sub-section (3) has been added which is explicit in itself. [s 14.3] Scope and application of section 14.— “Local areas” include a sessions division, district or sub-division [Punerdeo, 25 C 858]. The local jurisdiction of the Subordinate Magistrate including first class (Judicial) Magistrates is viewed as of a less extensive character than that of district (Chief Judicial) Magistrate, whose local jurisdiction again does not extend beyond the area called a district [Shk. Fakaruddin, 9 B 40, 44]. [s 14.4] Jurisdiction.— The effect of section 12 (now section 14) is that unless the jurisdiction of a (Judicial) Magistrate has been restricted under sub-section (1) to a specified local area, under sub-section (2) it extends over the whole district [Baliram, AIR 1945 N 56; Sarat, 29 C 389; Ram Kishore, 10 Cal WN 1095; Golam Rahman, 59 C 1448; Prasanta Kumar Mukerjee v State, AIR 1952 C 91; Parichhan, AIR 1961 P 94; Re Kanhaiyalal Daulatramji, AIR 1965 MP 53 : 1965 (1) Cr LJ 298 ]. Thus, a Deputy (Judicial) Magistrate at Sadar may, on transfer to his file, of a case instituted by a Sub-divisional (Judicial) Magistrate try it or take fresh proceedings [Sarat, 28 C 389; Golam Rahman, 36 Cal WN 796; Rameshwar, AIR 1935 P 436]. The Chief Judicial Magistrate subject to the control of the High Court may under section 12(1) [now section 14(1)] carve up the district and define particular [areas within which particular] (Judicial) Magistrates are to exercise their functions. But section 14, sub-section (2) prevents the mere carving up of jurisdiction in the whole district, unless the order defining the areas makes some provision excluding jurisdiction. The mere definition of areas cannot exclude jurisdiction of a (Judicial) Magistrate in the rest of the district, for that would make sub-section (2) meaningless [Gulabrao, 37 Cr LJ 515 : AIR 1935 B 409; Golam Rahman, AIR 1932 C 864; Ghulam Hussain, AIR 1933 L 143; Amritrao, AIR 1934 N 79; Krishnadas, AIR 1955 N 189; Radhey, AIR 1959 Raj 196 ; Chinnappo, AIR 1960 My 242 ]. The District (Chief Judicial) Magistrate has power to invest two Magistrates to entertain the same class of complaints from a Taluk [Amritrao, AIR 1934 N 79]. [s 14.5] Local jurisdiction.— Judicial Magistrates are exercising jurisdiction throughout the district and entertaining bail applications. There are cases where an accused is facing prosecution in more than one case. There is need that High Court should issue directions to confer jurisdiction on courts police station wise to check that an application for bail rejected by one Court is not filed by accused before another Court [Re, State of Assam, 2007 Cr LJ 927 (Gauhati-FB)].

When with the approval of the High Court, the local jurisdiction of each Magistrate including that of the CJM has been defined, the CJM cannot ignore the same or define it without the knowledge or concurrence of the High Court. The power of the CJM to withdraw a case and enquire into or try the same under section 410, Code of Criminal Procedure, 1973 does not confer on him territorial jurisdiction over the area comprised within the local limits of another Magistrate from whose Court such case was withdrawn. A case may be transferred to a Magistrate having no territorial jurisdiction if he is otherwise competent. By virtue of that transfer such Magistrate gets only the authority to try that case. But he does not get the jurisdiction over the area comprised within the local limits of the Magistrate from whose Court the case was transferred. Section 192, Code of Criminal Procedure, 1973 does not relate to the territorial jurisdiction of the CJM [Anil Kumar v Sindhu, 2009 Cr LJ 3530 (3534) (Ker) : 2009 (2) Ker LT 359 : 2009 (2) Ker LJ 152 ].

Power is given to the CJM under section 14(1) of the Code of Criminal Procedure, 1973 to define the local jurisdiction of every Magistrate of the first class including himself. But the said power of defining jurisdiction is subject to the control of the High Court. This control by the High Court is exercised, in actual practice, by approving the proposal forwarded to the High Court by the CJM defining the local jurisdiction of himself and all other judicial Magistrates subordinate to him. Once the power of control is exercised by the High Court on the proposal forwarded by the CJM by approving the local limits of the jurisdiction of the CJM, the latter cannot exercise any jurisdiction or judicial powers beyond the limits thus fixed [Anil Kumar v Sindhu, 2009 Cr LJ 3530 (3534) (Ker) : 2009 (2) Ker LT 359 : 2009 (2) Ker LJ 152 ]. [s 14.6] Section 14(2)—Jurisdiction and powers.—

Page 3 of 3 [s 14] Local jurisdiction of Judicial Magistrates.— Unless otherwise notified under section 14(1) the jurisdiction of a Judicial Magistrate extends throughout the district [Bai Meghi Sajan v Harijna Neja Khima, (1971) Cr LJ 717 , para 8 (1971) 12 Guj LR 469 (Guj); Om Prakash, AIR 1962 A 157; Baliram, AIR 1945 N 56, 57].

The extension of the jurisdiction and powers of every judicial Magistrate including the CJM throughout the district as provided under section 14(2) Code of Criminal Procedure, 1973 is subject to the definition of their local limits. Once their local jurisdiction is so defined, they can exercise their powers only within such local limits [Anil Kumar v Sindhu, 2009 Cr LJ 3530 (3534) (Ker) : 2009 (2) Ker LT 359 : 2009 (2) Ker LJ 152 ].

For the venue of trial, see section 178, Defects regarding local jurisdiction are curable under section 462, but the question of jurisdiction, if raised specifically must be decided [Radharani, AIR 1946 Cal 459 –460]. [s 14.7] Powers.— A Sub-divisional (Judicial) Magistrate can exercise first class powers outside his own sub-division but within the district unless the order defining a local area excludes the exercise of his power in the rest of the district [Tilakdhari, 1961 ALJ 179 ; Om Prakash, AIR 1962 A 157; Gulabrao, AIR 1935 B 409—Contra : Mahangu, AIR 1935 P 131; Syed Ali, AIR 1938 N 448; Khubchand, 29 Cr LJ 124].

If a (Judicial) Magistrate is authorised to try particular cases under the Payment of Wages Act, it cannot be said that the Government intends him to be a persona designata. This is made clear by sub-section (2) [Watts, AIR 1960 A 200].

4

Inserted by the Code of Criminal Procedure (Amendment) Act, 1978 (45 of 1978), Section 5(a).

5

Inserted by the Code of Criminal Procedure (Amendment) Act, 1978 (45 of 1978), Section 5(b).

End of Document

[s 15] Subordination of Judicial Magistrates.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER II CONSTITUTION OF CRIMINAL COURTS AND OFFICES

The Code of Criminal Procedure, 1973 CHAPTER II CONSTITUTION OF CRIMINAL COURTS AND OFFICES [s 15] Subordination of Judicial Magistrates.— (1) Every Chief Judicial Magistrate shall be subordinate to the Sessions Judge; and every other Judicial Magistrate shall, subject to the general control of the Sessions Judge, be subordinate to the Chief Judicial Magistrate. (2) The Chief Judicial Magistrate may, from time to time, make rules or give special orders, consistent with this Code, as to the distribution of business among the judicial Magistrates subordinate to him. [s 15.1] STATE AMENDMENT IN SECTION 15 Bihar.—The following amendments were made by Bihar Act No. 8 of 1977, section 4 (w.e.f. 10 January 1977).

Section 15(3).—In its application to State of Bihar, after section 15(2), sub-section (3) inserted and deemed always to have been so inserted:—

(3) Any Judicial Magistrate exercising powers over any local area extending beyond the district in which he holds his Court, shall be subordinate to the Chief Judicial Magistrate of the said district and references in this Code to the Sessions Judge shall be deemed to be references to the Sessions Judge of that district where he holds his Court.

COMMENTS [s 15.2] Changes.— Section 15 corresponds to old section 17(1). See summary of changes in sections 11 to 23 above. [s 15.3] Scope and application of section 15—Sub-section (1).— The Chief Judicial Magistrate is subordinate to the Sessions Judge and all Judicial Magistrates of whatever class are subordinate to the Chief Judicial Magistrate subject to the control of the Sessions Judge. It may be noted that the Additional Chief Judicial Magistrate has also been made subordinate to the Chief Judicial Magistrate being included in the expression “every other Judicial Magistrate”. An Additional Chief Metropolitan Magistrate has not been made subordinate to the Chief Metropolitan Magistrate (section 19) and an Additional District Magistrate has not been made subordinate to the District Magistrate (section 23). Why an Additional Chief Judicial Magistrate has been treated differently from an Additional Chief Metropolitan Magistrate and Additional District Magistrate is not very clear. Section 397 speaks of an “inferior criminal Court”. There may be “inferiority” without subordination, but there cannot be subordination without inferiority, as subordinate means “inferior in rank”. [Priyagopal, 9 B 100; see Laskari, 7 A 853 FB; Opendra, 12 C 473 FB; Padmanabha, 8 M 18 FB]. Subordination is in respect of both judicial and executive capacities [Guradayal, 2 A 205 FB; Opendra, 12 C 473 FB]. “Inferior”, i.e., inferior for purpose of jurisdiction [Laskari, 7 A 853 FB]. “Inferior” does not carry with it

Page 2 of 2 [s 15] Subordination of Judicial Magistrates.— any stigma. A Court is inferior to another when an appeal lies from the former to the latter. “Inferior” i.e., judicially inferior. Thus, it was held under the old Code, as an appeal lied from a High Court Judge presiding over the original criminal sessions to the appellate side (section 411 A) the former was inferior to the latter [Krishnaji, AIR 1949 B 29; Nobin, 10 C 268 relied on]. [s 15.4] Sub-section (2)—Powers.— The District (Chief Judicial) Magistrate’s powers relate to the distribution of business among the other Magistrates. He cannot stay proceedings in any case before them [Jagannath, AIR 1931 P 411; King, 42 Cr LJ 573; Krishna, AIR 1923 M 688; see, however, Nambia, 25 Cr LJ 280]. He cannot under section 17(1) [now section 15(1)] delegate his powers of calling up cases from subordinate Courts and redistributing them [Balkishen, 36 A 468]. A Special (Judicial) Magistrate under section 14 (now section 13) is subordinate to the District (Chief Judicial) Magistrate who can give direction as to distribution of work and is also subordinate to the Sub-divisional (Judicial) Magistrate within whose sub-division he exercises jurisdiction [Lalta, AIR 1952 A 70; section 12 (3)]. End of Document

[s 16] Courts of Metropolitan Magistrates.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER II CONSTITUTION OF CRIMINAL COURTS AND OFFICES

The Code of Criminal Procedure, 1973 CHAPTER II CONSTITUTION OF CRIMINAL COURTS AND OFFICES [s 16] Courts of Metropolitan Magistrates.— (1) In every metropolitan area, there shall be established as many Courts of Metropolitan Magistrates, and at such places, as the State Government may, after consultation with the High Court, by notification, specify. (2) The presiding officers of such Courts shall be appointed by the High Court. (3) The jurisdiction and powers of every Metropolitan Magistrate shall extend throughout the metropolitan area. [s 16.1] STATE AMENDMENT IN SECTION 16 Uttar Pradesh.—The following amendments were made by U.P. Act No. 1 of 1984, section 4 (w.e.f. 1 May 1984).

Section 16(4).—In Section 16 after sub-section (3) following sub-section shall be inserted:—

(4) Where the Office of the Chief Metropolitan Magistrate is vacant or he is incapacitated by illness, absence or otherwise for the performance of his duties, the senior-most among the Additional Chief Metropolitan Magistrates and other Metropolitan Magistrates present at the place, shall dispose of the urgent work of the Chief Metropolitan Magistrate.

COMMENTS [s 16.2] Changes.— Cf old section 18(1). See summary of changes in sections 11 to 23 above. [s 16.3] Scope and application of section 16.— (See section 11). In every metropolitan area, Courts of Metropolitan Magistrate shall be established by the State Government after consultation with the High Court [Geetha v Aruna Kumari, 2007 Cr LJ 3290 (3291) (Mad)].

The Metropolitan Magistrates shall, however, be appointed by the High Court. The Metropolitan Magistrate has power of Magistrate of first class [see section 3(1)(c)(i) and section 29(4)]. All Metropolitan Magistrates have coordinate jurisdiction. When a complaint is dismissed by an Honorary Presidency (Metropolitan) Magistrate, another Presidency (Metropolitan) Magistrate cannot issue fresh summons on the same facts. [Grish Ch, 24 C

Page 2 of 2 [s 16] Courts of Metropolitan Magistrates.— 528], nor can the Chief Presidency (Metropolitan) Magistrate revive a complaint dismissed and transfer the case to Honorary Presidency (Metropolitan) Magistrate of trial [Walters, 7 Cal WN 527]. The Chief Presidency (Metropolitan) Magistrate and other Presidency (Metropolitan) Magistrates are Courts of equal jurisdiction within section 526(1)(e)(ii) [now, section 407(1)(ii)]. Their powers to entertain and dispose of cases and to inflict punishments are the same, as also their territorial jurisdiction [Venkateshwara, 35 M 739].

Presidency (Metropolitan) Magistrate is included within “Magistrate of the first class” in the Emigration Act [Jeevanji, 31 B 611], but not within section 32 of the Prison Act [Chota, 32 M 303]. End of Document

[s 17] Chief Metropolitan Magistrate and Additional Chief Metropolitan Magistrate.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER II CONSTITUTION OF CRIMINAL COURTS AND OFFICES

The Code of Criminal Procedure, 1973 CHAPTER II CONSTITUTION OF CRIMINAL COURTS AND OFFICES [s 17] Chief Metropolitan Magistrate and Additional Chief Metropolitan Magistrate.— (1) The High Court shall in relation to every metropolitan area within its local jurisdiction, appoint a Metropolitan Magistrate to be the Chief Metropolitan Magistrate for such metropolitan area. (2) The High Court may appoint any Metropolitan Magistrate to be an Additional Chief Metropolitan Magistrate, and such Magistrate shall have all or any of the powers of a Chief Metropolitan Magistrate under this Code or under any other law for the time being in force as the High Court may direct. [s 17.1] Changes.— Cf. old section 18(1), (4). See summary of changes in sections 11 to 23 above. [s 17.2] Scope and application of section 17.— (See section 12). In every metropolitan area a Metropolitan Magistrate shall be appointed as Chief Metropolitan Magistrate by the High Court.

The High Court may also appoint a Metropolitan Magistrate as an Additional Chief Metropolitan Magistrate with all or any of the powers of the Chief Metropolitan Magistrate. End of Document

[s 18] Special Metropolitan Magistrates.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER II CONSTITUTION OF CRIMINAL COURTS AND OFFICES

The Code of Criminal Procedure, 1973 CHAPTER II CONSTITUTION OF CRIMINAL COURTS AND OFFICES [s 18] Special Metropolitan Magistrates.— (1) The High Court may, if requested by the Central or State Government so to do, confer upon any person who holds or has held any post under the Government, all or any of the powers conferred or conferrable by or under this Code on a Metropolitan Magistrate, in respect to particular cases or to particular classes of cases, 6[* * *] in any metropolitan area within its local jurisdiction : Provided that no such power shall be conferred on a person unless he possesses such qualification or experience in relation to legal affairs as the High Court may, by rules, specify. (2) Such Magistrates shall be called Special Metropolitan Magistrates and shall be appointed for such term, not exceeding one year at a time, as the High Court may, by general or special order, direct. 7[(3) The High Court or the State Government, as the case may be, may empower any Special Metropolitan Magistrate to exercise, in any local area outside the metropolitan area, the powers of a Judicial Magistrate of the first class.] [s 18.1] STATE AMENDMENTS IN SECTION 18 Andhra Pradesh.—Following Amendments were made by A.P. Act 2 of 1992, section 3.

Section 18(2).—In Section 18 in sub-section (2) for the words “not exceeding one year at a time” the words “not exceeding two years at a time” shall be substituted.

Following proviso was added by A.P. Act 2 of 1992, section 3.

In Section 18 sub-section (2), proviso shall be added, namely:—

Provided that a person who is holding the office of Special Metropolitan Magistrate at the commencement of the Code of Criminal Procedure (Andhra Pradesh Amendment) Act, 1992, and has not completed sixty-five years of age shall continue to hold office for a term of two years from the date of his appointment.

Page 2 of 2 [s 18] Special Metropolitan Magistrates.— Maharashtra.—The following amendments were made by Maharashtra Act No. 23 of 1976, section 3 (w.e.f. 9 June 1976).

Section 18(1).—In Section 18 of the said Code, in sub-section (1) for the words “in any Metropolitan area” the words “in one or more Metropolitan areas” shall be substituted. COMMENTS [s 18.2] Changes.— Cf. old section 14. See summary of changes in sections 11 to 23 above.

1978 Amendment.—(1) In sub-section (1) the words “or to cases generally” after “particular classes of cases” have been omitted.

(2) Sub-section (3) has been substituted.

Section 18 has been amended to bring it in line with section 13 as amended. It may be noted that while by adding sub-section (3) to section 13 power has been conferred on the High Court, by substitution of sub-section (3) of section 18 power has been conferred on the State Government also besides the High Court. While there appears no special reason for this difference, vesting the State Government with such a power concurrently with the High Court appears to be also inconsistent with the scheme of separation of the judiciary from the executive. [s 18.3] Scope and application of section 18.— (See section 13). A Metropolitan Magistrate has power of the Magistrate of the first class but a special Metropolitan Magistrate has power similar to the power of a Judicial Magistrate of the second class.

Power of special Metropolitan Magistrate can be conferred on members of subordinate judicial service [Kadra Pahadiya v State of Bihar, AIR 1997 SC 3750 : 1997 Cr LJ 2232 : (1997) 4 SCC 287 : 1997 (1) Crimes 289 (SC)].

6

The words “or to cases generally” omitted by the Code of Criminal Procedure (Amendment) Act, 1978 (45 of 1978), Section 6(i).

7

Substituted by the Code of Criminal Procedure (Amendment) Act, 1978 (45 of 1978), Section 6(ii).

End of Document

[s 19] Subordination of Metropolitan Magistrates.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER II CONSTITUTION OF CRIMINAL COURTS AND OFFICES

The Code of Criminal Procedure, 1973 CHAPTER II CONSTITUTION OF CRIMINAL COURTS AND OFFICES [s 19] Subordination of Metropolitan Magistrates.— (1) The Chief Metropolitan Magistrate and every Additional Chief Metropolitan Magistrate shall be subordinate to the Sessions Judge; and every other Metropolitan Magistrate shall, subject to the general control of the Sessions Judge, be subordinate to the Chief Metropolitan Magistrate. (2) The High Court may, for the purposes of this Code, define the extent of the subordination, if any, of the Additional Chief Metropolitan Magistrates to the Chief Metropolitan Magistrate. (3) The Chief Metropolitan Magistrate may, from time to time, make rules or give special orders, consistent with this Code, as to the distribution of business among the Metropolitan Magistrates and as to the allocation of business to an Additional Chief Metropolitan Magistrate. [s 19.1] Changes.— Cf old section 21. See summary of changes in sections 11 to 23 above. [s 19.2] Scope and application of section 19.— (See section 15). The Chief Metropolitan Magistrate and Additional Chief Metropolitan Magistrate are subordinate to the Sessions Judge and all Metropolitan Magistrates are subordinate to the Chief Metropolitan Magistrate subject to the general control of the Sessions Judge.

Under sub-section (2), the High Court may make the Additional Chief Metropolitan Magistrate subordinate to the Chief Metropolitan Magistrate by defining the extent. End of Document

[s 20] Executive Magistrates.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER II CONSTITUTION OF CRIMINAL COURTS AND OFFICES

The Code of Criminal Procedure, 1973 CHAPTER II CONSTITUTION OF CRIMINAL COURTS AND OFFICES [s 20] Executive Magistrates.— (1) In every district and in every metropolitan area, the State Government may appoint as many persons as it thinks fit to be Executive Magistrates and shall appoint one of them to be the District Magistrate. (2) The State Government may appoint any Executive Magistrate to be an Additional District Magistrate, and such Magistrate shall have 8[such] of the powers of a District Magistrate under this Code or under any other law for the time being in force, 9[as may be directed by the State Government.] (3) Whenever, in consequence of the office of a District Magistrate becoming vacant, any officer succeeds temporarily to the executive administration of the district, such officer shall, pending the orders of the State Government, exercise all the powers and perform all the duties respectively conferred and imposed by this Code on the District Magistrate. (4) The State Government may place an Executive Magistrate in charge of a sub-division and may relieve him of the charge as occasion requires; and the Magistrate so placed in charge of a sub-division shall be called the Sub-divisional Magistrate. 10[(4-A) The State Government may, by general or special order and subject to such control and directions as it may deem fit to impose, delegate its powers under sub-section (4) to the District Magistrate.] (5) Nothing in this section shall preclude the State Government from conferring, under any law for the time being in force, on a Commissioner of Police, all or any of the powers of an Executive Magistrate in relation to a metropolitan area. [s 20.1] STATE AMENDMENT IN SECTION 20 Uttar Pradesh.—The following amendments were made by U.P. Act 1 of 1984, section 5 (w.e.f. 1 May 1984).

Section 20(6).—In Section 20 of the said Code, after sub-section (5) following sub-section shall be inserted:—

(6) the State Government may delegate its powers under sub-section (4) to the District Magistrate.

COMMENTS [s 20.2] Changes.— Sub-sections (1) and (2) correspond to old sections 10(1), (2) and 12; sub-section (3) corresponds to old section 11; sub-section (4) corresponds to old section 13 and sub-section (5) has been added.

Page 2 of 4 [s 20] Executive Magistrates.— See summary of changes in sections 11 to 23 above. [s 20.2.1] 1978 Amendment .— In sub-section (2) the words “such” has been substituted for “all or any” and the words “as may be directed by the State Government” have been added at the end. [s 20.2.2] CrPC (Amendment) Act, 2005 (25 of 2005).— In section 20, after sub-section (4), the following sub-section shall be inserted, namely:

(4A) The State Government may, by general or special order and subject to such control and directions as it may deem fit to impose, delegate its powers under sub-section (4) to the District Magistrate.

Notes on Clauses

The clause seeks to insert sub-section(4-A) in Section 20 to enable the State Government to delegate its powers to the District Magistrates for the purposes of placing the Executive Magistrates incharge of a sub-division. (Notes on Clauses, Clause-2)

This amendment in the section has come into force w.e.f. 23 June 2006 vide Notification No. S.O. 923(E), dt. 21 June 2006. [s 20.3] Scope and application of section 20—Sub-section (1).— [See sections 11(1) and 16(1)]. In every district and in every metropolitan area the State Government shall appoint Executive Magistrates and shall appoint one of them to be District Magistrate. Powers of a District Magistrate not only under existing laws but under other laws which may be passed in future, may be invested [Kalu, AIR 1953 B 401]. The District Magistrate is, in addition, the Collector and is also the District Officer in which capacity he has to perform many functions not covered by the Code [Bejoy, 1939, (2) Cal 532 : AIR 1940 C 30].

The words “as many persons” employed in sub-section (1) are adequately elastic to include the commissioner of police. Once the commissioner of police is appointed as an Executive Magistrate in Bihar, Bombay he can be appointed as an Additional District Magistrate, who shall have the powers of the District Magistrate for the purpose of sections 18 and 20 of the Immoral Traffic (Prevention) Act, 1956. This view has been clarified by sub-section (5) of section 20 of the said Act. [A.N. Roy, Commissioner of Police v Suresh Sham Singh, 2006 Cr LJ 3614 (3618-19) (SC) : AIR 2006 SC 2677 : (2006) 5 SCC 745 : 2006 (3) Crimes 10 ].

To the extent of usurpation of the powers of the State Legislature by the State Executive, the action covered by the G.O. is beyond the scope of Code of Criminal Procedure, 1973 and that needs to be struck down in accordance with its merits [S. Bharat Kumar v Chief of Election, Commissioner of India, 1995 Cr LJ 2608 (AP)].

In a matter of taking possession of secured assets, the Allahabad High Court held that both district magistrate and additional district magistrate are executive magistrate. All functions exercisable by magistrate, which are administrative or executive in nature, shall be exercisable by executive magistrate. [M/s Lakshya Concosts Pvt Ltd, Aligarh v Bank of Baroda, AIR 2017 All 172 : 2017 (5) ADJ 122 ]. [s 20.4] Sub-section (2)—Appointment.— The State Government may appoint any Executive Magistrate to be an Additional District Magistrate with such

Page 3 of 4 [s 20] Executive Magistrates.— powers of the District Magistrate as may be directed by the State Government. The scheme of section 10 (now section 20) leaves no room for doubt that the District Magistrate and the Additional District Magistrate are two different and distinct authorities and even though the latter may be empowered under sub-section (2) to exercise specified powers of a District Magistrate by no stretch of reasoning can an Additional District Magistrate be called District Magistrate in sub-section (1). Notification under the Defence of India Act empowering District Magistrate to exercise power under section 29 of the Defence of India act does not mean that Additional District Magistrate empowered under section 20(2) Code of Criminal Procedure, 1973 is competent to exercise that power [Harichand Aggarwal v Batala Engineering Co Ltd, AIR 1969 SC 483 : 1969 Cr LJ 803 ]. The principle is that an Additional District Magistrate does not ipso facto become District Magistrate and his powers are only those notified under sub-section (2) [Harichand Aggarwal v Batala Engineering Co Ltd, AIR 1969 SC 483 : 1969 Cr LJ 803 ].

When section 20(2) of the Code of Criminal Procedure, 1973 specifically empowers the State Government to appoint an Executive Magistrate as an Additional District Magistrate and empower such Additional District Magistrate to exercise the power of the District Magistrate under the laws mentioned in the order of appointment, the competence of such person to exercise the power of the District Magistrate under section 14 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 cannot be questioned merely because his designation is Additional District Magistrate [Harun Ali Mallick v State of WB, AIR 2011 Cal 45 ].

Where a question concerning the appointment of an Executive Magistrate arises in relation to a class of persons who are not mentioned in sections 108 and 110, Code of Criminal Procedure, 1973, they can neither be imagined by section 21 or by any other provision in the Code [S. Bharat Kumar v Chief Election Commissioner of India, 1995 Cr LJ 2608 (AP)].

An Additional District Magistrate empowered to exercise functions of District Magistrate cannot direct detention under section 3 of National Security Act, 1980 [Vashistha Narain Karvaria v State of UP, (1981) Cr LJ 1526 (All) : 1981 All WC 583 : 1981 All CrLR 325]. Appointment of a person as Additional District Magistrate without first appointing him as first class (Executive) Magistrate is invalid [Ladhuram, AIR 1975 C 667]. An Executive Magistrate is subordinate to the District Magistrate and not to the Additional District Magistrate [Prabhulal, inf; Thatayya, AIR 1953 M 956—Contra : Jaswant, AIR 1951 A 828]. The argument that the District Magistrate was a persona designata is unacceptable. An Additional District Magistrate appointed by a notification under section 10(2) [now section 20(2)] must be regarded as possessing the power of a District Magistrate under any other law [Central Talkies Ltd v Dwarka Prasad, AIR 1961 SC 606 : 1961 (1) Cr LJ 740 : 1961 (3) SCR 495 ]; e.g., under section 29 Arms Act [Bhimsha, AIR 1962 B 188]. “Law” in any other law is not meant to include an executive order but only legislative enactments and rules, regulations or orders which have the force of law. An Additional District Magistrate invested with the powers of a District Magistrate only under this Code and not under any other law, cannot exercise the powers of a District Magistrate under section 29, Arms Act [Thangjam, AIR 1959 Man 15 ; Yusuf Umar, AIR 1940 section 107]. So, an Additional District Magistrate cannot exercise the power delegated to the District Magistrate under section 2(5), Defence of India Act [Prabhulal, 45 Cr LJ 296 : AIR 1944 N 84]. Arms Act comes within any other law. Sanction under section 29, Arms Act can be given by Additional District Magistrate authorised under section 10 (now section 20) of the Code authorising also under “any other law” [Hussain, AIR 1960 As 45 ; Panchu Gopal, AIR 1955 NUC (C) 546].

The Executive Magistrate appointed as an Additional District Magistrate has jurisdiction to pass order by virtue of his being appointed as Additional District Magistrate vide notification issued by the Government. It is the duty of party challenging jurisdiction of ADM to place materials to substantiate his claim. The fact that notification was not placed before the High Court cannot be a ground to conclude that ADM who passed order had not authority [State of Karnataka v Dr. Praveen Thogadia, AIR 2004 SC 2081 : 2004 Cr LJ 1825 : (2004) 4 SCC 684 : 2004 (2) Crimes 107 (SC)]. [s 20.5] Sub-section (3)—Temporary appointment.— [Cf section 9(5)]. During an officer’s absence on casual leave the next in seniority remains in charge and there is no vacancy of temporary succession [Achhaibar, 23 Cr LJ 713]. When can an officer temporarily succeeding a vacancy exercise the powers of a District Magistrate under the section? [Bishesharnath, 15 PR 1884 Cr]. [s 20.6] Sub-section (4)—Additional powers.—

Page 4 of 4 [s 20] Executive Magistrates.— [Cf section 12(3)]. A first class (Executive) Magistrate with jurisdiction throughout the district, when appointed sub-divisional officer, gets additional powers without losing all his powers as a Magistrate [Abbu, 34 A 597]. There cannot be more than one sub-divisional Magistrate in a sub-division [Gajendharlal, AIR 1958 MP 184 ; Lakshmi, AIR 1962 A 165]. [s 20.7] Sub-section (5)—Powers.— In metropolitan areas powers of an Executive Magistrate may be conferred on a Commissioner of Police wherever such conferment is authorised by any law in any State. This system is already in vogue in Calcutta, Bombay and Madras. But where this is not done and also for discharging other functions of the Executive District Magistrate, an Executive District Magistrate may be appointed in a metropolitan area. [s 20.8] Judgment.— Judgment of a Court is an affirmation by the authorised societal agent of the state speaking by warrant of law and in the name of the state. The word “judgment” for the purpose of Code of Civil Procedure, 1908 is defined to be the statement given by the judge as the grounds of a decree or order [Infoseek Solutions v Kerala Law Times, AIR 2007 Ker 1 ].

8

Substituted by the Code of Criminal Procedure (Amendment) Act, 1978 (45 of 1978), Section 7(a).

9

Inserted by the Code of Criminal Procedure (Amendment) Act, 1978 (45 of 1978), Section 7(b).

10

Inserted by the Code of Criminal Procedure (Amendment) Act, 2005 (25 of 2005), section 2 (w.e.f. 23 June 2006 vide Notification No. SO 923(E), dated 21 June 2006).

End of Document

[s 21] Special Executive Magistrates.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER II CONSTITUTION OF CRIMINAL COURTS AND OFFICES

The Code of Criminal Procedure, 1973 CHAPTER II CONSTITUTION OF CRIMINAL COURTS AND OFFICES [s 21] Special Executive Magistrates.— The State Government may appoint, for such term as it may think fit, Executive Magistrates, to be known as Special Executive Magistrates for particular areas or for the performance of particular functions and confer on such Special Executive Magistrates such of the powers as are conferrable under this Code on Executive Magistrates, as it may deem fit. [s 21.1] Changes.— See summary of changes in sections 11 to 23 above. [s 21.2] Scope and application of section 21.— Cf sections 13 and 18.

Special Executive Magistrate can exercise all powers of Executive Magistrates, without any special empowerment [State of Maharashtra v Mohammed Salim Khan, (1991) 4 SCJ 82 : (1991) 1 SCC 550 : 1991 (1) Crimes 120 ].

While granting permission for withdrawal from prosecution the Court must ensure that Public Prosecutor acting in good faith is of opinion that withdrawal is in public interest [Abdul Karim v State of Karnataka, AIR 2001 SC 116 : 2001 Cr LJ 148 (SC) : (2000) 8 SCC 710 : 2000 (4) Crimes 203 ].

End of Document

[s 22] Local jurisdiction of Executive Magistrates.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER II CONSTITUTION OF CRIMINAL COURTS AND OFFICES

The Code of Criminal Procedure, 1973 CHAPTER II CONSTITUTION OF CRIMINAL COURTS AND OFFICES [s 22] Local jurisdiction of Executive Magistrates.— (1) Subject to the control of the State Government, the District Magistrate may, from time to time, define the local limits of the areas within which the Executive Magistrates may exercise all or any of the powers with which they may be invested under this Code. (2) Except as otherwise provided by such definition, the jurisdiction and powers of every such Magistrate shall extend throughout the district. [s 22.1] Changes.— Cf old section 12. See summary of changes in sections 11 to 23 above. [s 22.2] Scope and application of section 22.— (See section 14). The local jurisdiction of a Subordinate Magistrate is viewed as of a less extensive character than that of a District Magistrate, whose local jurisdiction again does not extend beyond the area called a district [Shk. Fakruddin, 9 B 40, 44].

The effect of section 12 (now section 22) is that unless the jurisdiction of a Magistrate has been restricted under sub-section (1) to a specified local area, under sub-section (2) it extends over the whole district [Re Kanhaiyalal Daulatramji, AIR 1965 MP 53 : 1965 (1) Cr LJ 298 and other cases under section 14]. [s 22.3] Sub-section (2)—Areas.— The District Magistrate subject to the control of the State Government may under section 12(1) [now section 22(1)] carve up the district and define particular areas within which particular Magistrates are to exercise their functions. But sub-section (2) prevents the mere carving up of jurisdiction of the whole district, unless the order defining the areas makes some provision excluding jurisdiction. The mere definition of areas cannot exclude jurisdiction of a Magistrate in the rest of the district, for that would make sub-section (2) meaningless [Chinnappa, A 1960 My 242 and other cases under section 14].

Unless limited by definition under section 22(1), the jurisdiction of the Magistrate extends throughout the district [Prasanta Kumar Mukerjee v State, A 1952 Cal 91 ; Parichhan, AIR 1961 Pat 94 ]. End of Document

[s 23] Subordination of Executive Magistrates.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER II CONSTITUTION OF CRIMINAL COURTS AND OFFICES

The Code of Criminal Procedure, 1973 CHAPTER II CONSTITUTION OF CRIMINAL COURTS AND OFFICES [s 23] Subordination of Executive Magistrates.— (1) All Executive Magistrates, other than the Additional District Magistrate, shall be subordinate to the District Magistrate, and every Executive Magistrate (other than the Sub-divisional Magistrate) exercising powers in a sub-division shall also be subordinate to the Sub-divisional Magistrate, subject, however, to the general control of the District Magistrate. (2) The District Magistrate may, from time to time, make rules or give special orders, consistent with this Code, as to the distribution of business among the Executive Magistrates subordinate to him and as to the allocation of business to an Additional District Magistrate. [s 23.1] Changes.— Cf old section 17(1) and (2). See summary of changes in sections 11 to 23 above. [s 23.2] Scope and application of section 23.— (Cf sections 15 and 19). All Executive Magistrates except Additional District Magistrate are subordinate to the District Magistrate. In a sub-division all Executive Magistrates are subordinate to the Sub-divisional Magistrate, subject to the general control of the District Magistrate. A special (Executive) Magistrate under section 21 is subordinate to the District Magistrate who can give direction as to the distribution of work and is also subordinate to the Sub-divisional Magistrate within whose area he exercises jurisdiction [Lalta, AIR 1952 All 70 ].

An Additional District Magistrate (under the present Code) is not subordinate to the District Magistrate except for allocation of business under section 23(2). As to allocation of business [See Jaikrit, AIR 1959 Raj 63 ]. [s 23.3] Sub-section (1)—Jurisdiction.— The District Magistrate’s jurisdiction is not ousted by that of the Sub-divisional Magistrates. Within a subdivision their jurisdictions are co-ordinate [Kallu, 4 A 366, 370]. A Magistrate subordinate to the Sub-divisional Magistrate is also subordinate to the District Magistrate [Thaman, 14 M 399]. End of Document

[s 24 Public Prosecutors.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER II CONSTITUTION OF CRIMINAL COURTS AND OFFICES

The Code of Criminal Procedure, 1973 CHAPTER II CONSTITUTION OF CRIMINAL COURTS AND OFFICES 11[s

24 Public Prosecutors.— (1) For every High Court, the Central Government or the State Government shall, after consultation with the High Court, appoint a Public Prosecutor and may also appoint one or more Additional Public Prosecutors, for conducting in such Court, any prosecution, appeal or other proceeding on behalf of the Central Government or State Government, as the case may be. (2) The Central Government may appoint one or more Public Prosecutors, for the purpose of conducting any case or class of cases in any district or local area. (3) For every district, the State Government shall appoint a Public Prosecutor and may also appoint one or more Additional Public Prosecutors for the district: Provided that the Public Prosecutor or Additional Public Prosecutor appointed for one district may be appointed also to be a Public Prosecutor or an Additional Public Prosecutor, as the case may be, for another district. (4) The District Magistrate shall, in consultation with the Sessions Judge, prepare a panel of names of persons, who are, in his opinion, fit to be appointed as Public Prosecutors or Additional Public Prosecutors for the district. (5) No person shall be appointed by the State Government as the Public Prosecutor or Additional Public Prosecutor for the district unless his name appears in the panel of names prepared by the District Magistrate under sub-section (4). (6) Notwithstanding anything contained in sub-section (5), where, in a State there exists a regular Cadre of Prosecuting Officers, the State Government shall appoint a Public Prosecutor or an Additional Public Prosecutor only from among the persons constituting such Cadre: Provided that where, in the opinion of the State Government, no suitable person is available in such Cadre for such appointment that Government may appoint a person as Public Prosecutor or Additional Public Prosecutor, as the case may be, from the panel of names prepared by the District Magistrate, under sub-section (4). 12[Explanation.—For

the purposes of this sub-section,—

(a) “regular Cadre of Prosecuting Officers” means a Cadre of Prosecuting Officers which includes therein the post of a Public Prosecutor, by whatever name called, and which provides for promotion of Assistant Public Prosecutors, by whatever name called, to that post;

Page 2 of 18 [s 24 Public Prosecutors.— (b) “Prosecuting Officer” means a person, by whatever name called, appointed to perform the functions of a Public Prosecutor, an Additional Public Prosecutor or an Assistant Public Prosecutor under this Code.] (7) A person shall be eligible to be appointed as a Public Prosecutor or an Additional Public Prosecutor under sub-section (1) or sub-section (2) or sub-section (3) or sub-section (6), only if he has been in practice as an advocate for not less than seven years. (8) The Central Government or the State Government may appoint, for the purposes of any case or class of cases, a person who has been in practice as an advocate for not less than ten years as a Special Public Prosecutor: 13[Provided

that the Court may permit the victim to engage an advocate of his choice to assist the prosecution under this sub-section.] 9. For the purposes of sub-section (7) and sub-section (8), the period during which a person has been in practice as a pleader, or has rendered (whether before or after the commencement of this Code) service as a Public Prosecutor or as an Additional Public Prosecutor or Assistant Public Prosecutor or other Prosecuting Officer, by whatever name called, shall be deemed to be the period during which such person has been in practice as an advocate.] [s 24.1] STATE AMENDMENTS IN SECTION 24 Bihar.—The following amendments were made by Bihar Act No. 16 of 1984, section 2.

Section 24(6).—In Section 24 for sub-section (6) substitute following and deemed always to have been substituted:—

(6) Notwithstanding anything contained in sub-section (5) where in a State there exists a regular cadre of prosecuting officers, the State Government may also appoint a Public Prosecutor or an Additional Public Prosecutor from among the persons constituting such cadre.

Haryana.—The following amendments were made by Haryana Act No. 14 of 1985, section 2.

Section 24(6).—In its application to the State of Haryana to sub-section (6) of Section 24 of the Code of Criminal Procedure, 1973, the following Explanation shall be added:—

Explanation.—For the purpose of sub-section (6), the persons constituting the Haryana State Prosecution Legal Service (Group A) or Haryana State Prosecution Legal Service (Group B), shall be deemed to be a regular cadre of prosecuting officers.

Karnataka.—The following amendments were made by Karnataka Act No. 20 of 1982, section 2 (w.e.f. 3 September 1981).

Section 24.—In its application to the State of Karnataka, in section 24:—

Page 3 of 18 [s 24 Public Prosecutors.— (i)

words and punctuation mark “or the State Government shall”, omitted.

(ii) for the words “appoint Public Prosecutor,” substitute the words “or the State Government shall appoint a Public Prosecutor”.

Madhya Pradesh.—The following amendments were made by M.P. Act, 21 of 1995, Section 3— In Section 24 of the Principal Act—

(i)

Section 24(6).—In sub-section (6), for the words, brackets and figure “Notwithstanding anything contained in sub-section (5)”, the words, brackets, letter and figures “Notwithstanding anything contained in sub-section (5), but subject to the provisions of sub-section (6-A)” shall be substituted and shall be deemed to have been substituted with effect from 18th December, 1978;

(ii) Section 24(6-A).—After sub-section (6), the following sub-section shall be inserted and shall be deemed to have been inserted with effect from 18th December, 1978, namely:— (6-A) Notwithstanding anything contained in sub-section (6), the State Government may appoint a person who has been in practice as an advocate for not less than seven years as the Public Prosecutor or Additional Public Prosecutor for the district and it shall not be necessary to appoint the Public Prosecutor or Additional Public Prosecutor for the district from among the persons constituting the Cadre of Prosecuting Officers in the State of Madhya Pradesh and the provisions of sub-sections (4) and (5) shall apply to the appointment of a Public Prosecutor or Additional Public Prosecutor under this sub-section;

(iii) Section 24(7).—In sub-section (7), after the words, brackets and figure “sub-section (6)” the words, brackets, figure and letter “or sub-section (6-A)” shall be inserted and shall be deemed to have been inserted with effect from 18th December, 1978; and (iv) In sub-section (9), for the words, brackets and figure, “sub-section (7)”, the words, brackets, figures and letter “sub-section (6-A) and sub-section (7)” shall be substituted and shall be deemed to have been substituted with effect from 18th December, 1978.

Maharashtra.—The following amendments were made by Maharashtra Act No. 34 of 1981, section 2 (w.e.f. 26 May 1981).

Section 24.—In Section 24 in its application to the State of Maharashtra:—

(a) in sub-section (1), the words “after consultation with the High Court”, shall be deleted; (b) in sub-section (4), for the words “in consultation with the Sessions Judge,” the words “with the approval of the State Government,” shall be substituted.

Rajasthan.—The following amendments were made by Rajasthan Act No. 1 of 1981, section 2 (w.e.f. 10 December 1980).

Page 4 of 18 [s 24 Public Prosecutors.— Section 24(6).—Sub-section (6) of Section 24 in its application to the State of Rajasthan shall be deemed always to have been substituted by the following:—

(6) Notwithstanding anything contained in sub-section (5), where in a State there exists a regular cadre of Prosecuting Officers, the State Government may also appoint a Public Prosecutor or an Additional Public Prosecutor from among the persons constituting such cadre.

Tamil Nadu.—The following amendments were made by Tamil Nadu Act No. 42 of 1980, section 2 (w.e.f. 1 February 1980).

Section 24(6).—(a) in sub-section (6), after the expression “sub-section (5)”, the following shall be inserted, namely:—

but subject to the provisions of sub-section (6-A);

Section 24(6A).—(b) after sub-section (6), the following sub-section shall be inserted, namely:—

(6-A) Notwithstanding anything contained in sub-section (6), the State Government may appoint a person who has been in practice as an advocate for not less than seven years, as the Public Prosecutor or Additional Public Prosecutor for the district and it shall not be necessary to appoint the Public Prosecutor or Additional Public Prosecutor for the district from among the persons constituting the cadre of Prosecuting Officers in the State of Tamil Nadu and the provisions of sub-sections (4) and (5) shall apply to the appointment of a Public Prosecutor or Additional Public Prosecutor under this sub-section;

Section 24(7).—(c) in sub-section (7), after the expression “sub-section (6)”, the expression “or sub-section (6A)” shall be inserted.

Uttar Pradesh.—(1) The following amendments were made by U.P. Act No. 33 of 1978, section 2 (w.e.f. 9 October 1978).

Section 24(1).—In its application to the State of Uttar Pradesh in section 24(1),

(i) after the words “Public Prosecutor”, words, “and one or more Additional Public Prosecutors” shall be inserted and be deemed always to have been so inserted.

Section 24(7).—(ii) After sub-section (6), sub-section (7) inserted, and deemed always to been so inserted, as follows:—

Page 5 of 18 [s 24 Public Prosecutors.—

(7) For the purposes of sub-sections (5) and (6), the period during which a person has been in practice as a pleader, or has rendered service as a Public Prosecutor, Additional Public Prosecutor or Assistant Public Prosecutor shall be deemed to be the period during which such person has been in practice as an advocate.

(2) The following amendments were made by U.P. Act 18 of 1991, section 2 (w.e.f. 16 February 1991). Section 24.—In Section 24

West Bengal.—The following amendments were made by W.B. Act 26 of 1990, section 3 (w.e.f. 1 March 1991).

Section 24(6).—In sub-section (6) of Section 24 for the words “shall appoint a Public Prosecutor or an Additional Public Prosecutor only”, the words “may also appoint a Public Prosecutor or an Additional Public Prosecutor” shall be substituted. COMMENTS [s 24.2] Changes.— The section has been substituted for old section 492. Section 24 has again been substituted by 1978 Amendment Act to make some procedure for appointment of Public Prosecutors.

The provisions of sections 24(8) and 25(1) of the Code do not violate Article 14 of the Constitution [Vijay Valia v State of Maharashtra, (1986) Cr LJ 2093 : (1986) 88 Bom LR 491 (Bom)]. [s 24.2.1] CrPC (Amendment) Act, 2005 (25 of 2005).— In section 24 of the principal Act, in sub-section (6), after the proviso, the following Explanation shall be inserted and shall be deemed to have been inserted with effect from the 18th day of December, 1978, namely:

Explanation.—For the purposes of this sub-section,

(a) “regular Cadre of Prosecuting Officers” means a Cadre of Prosecuting Officers which includes therein the post of a Public Prosecutor, by whatever name called, and which provides for promotion of Assistant Public Prosecutors, by whatever name called to the post; (b) “Prosecuting Officer” means a person, by whatever name called, appointed to perform the functions of a Public Prosecutor, an Additional Public Prosecutor or an Assistant Public Prosecutor under this Code.

Notes on Clauses

This clause seeks to amend sub-section (6) of Section 24 to clarify the expression “regular Cadre of Prosecuting Officers” and “Prosecuting Officer”. (Notes on Clauses, Clause 3)

In sub-section (6), the Explanation has been inserted and shall be deemed to have been inserted with effect from the 18th day of December, 1978 vide Notification No. S.O. 923(E), dt. 21 June 2006. [s 24.2.2] CrPC (Amendment) Act, 2008 (5 of 2009) .—

Page 6 of 18 [s 24 Public Prosecutors.— In section 24, sub-section (8), proviso has been added, by section 3 of the CrPC (Amendment) Act, 2008 (5 of 2009). This proviso empowers the Court to permit the victim to engage an advocate of his choice to co-ordinate with the prosecution in consultation with the Central or the State Government, as the case may be [vide Notes on Clauses, Clause 3]. [s 24.3] Scope and application of section 24.— Public Prosecutor has been defined in section 2(u). Under sub-section (1) for every High Court the Central Government or the State Government after consultation with the High Court shall appoint a Public Prosecutor and may also appoint one or more Additional Public Prosecutors. As appointment is to be made in consultation but not in concurrence with the High Court, there is no obligation on the part of the Government to accept the High Court’s opinion. Under sub-section (2) the Central Government may also appoint one or more Public Prosecutors for conducting cases in a district or local area. Under sub-section (3) for every district the State Government shall appoint a Public Prosecutor and may also appoint one or more Additional Public Prosecutors; Sub-sections (4) to (7) and (9) provide procedures for appointment of Public Prosecutors and Additional Public Prosecutors. The provisions of sub-section (6) apply only in States having a regular cadre of prosecuting officers [KJ John v State of Kerala, 1981 Cr LJ 121 : 1981 Ker LT 68 : ILR (1981) 1 Ker 308 (Ker)]. Under subsection (8) a special Public Prosecutor may be appointed by the Central Government or the State Government for any case or class of cases [G Ramkrishna Reddy v State, 1981 Cr LJ (NOC) 192 (AP) : (1980) 2 Andh LT 501 : 1981 Mad LJ (Cri) 128]. The Advocate-General, Standing Counsel, the Solicitor mentioned in old section 495 (Govt. Advocate, Assistant Public Prosecutor mentioned in section 302) are not Public Prosecutors within this section [Karu Mian, AIR 1929 P 344, 346].

The holder of an office of the public prosecutor does not hold a civil post. In the appointment of Public Prosecutor, the principle of master-servant does not apply. Such an appointment is not an appointment to a civil post [State of UP v Johri Mal, (2004) 4 SCC 714) : AIR 2004 SC 3800 ; Centre for Public Interest Litigation. v UOI, (2012) 3 SCC 117 : 2012 Cr LJ 1153 ; Sidhartha Vashisht v State, AIR 2010 SC 2352 : (2010) 6 SCC 1 ; Deepak Aggarwal v Kedar Kaushik, (2013) 5 SCC 277 : (2013) 2 SCC (Cri) 778 ]. A distinction is to be borne in mind between appointment of a Public Prosecutor or Additional Public Prosecutor on the one hand, and Assistant Public Prosecutor, on the other. So far as Assistant Public Prosecutors are concerned, they are employees of the State. They hold civil posts. They are answerable for their conduct to higher statutory authority. Their appointment is governed by the service rules framed by the respective State Government [Samarendra Das, Advocate v State of WB, (2004) 2 SCC 274 : [2004] 2 SCR 532 : 2004 (1) Scale 579 ; State of UP v Johri Mal, (2004) 4 SCC 714 : AIR 2004 SC 3800 ]. The appointment of Public Prosecutor, on the other hand, is governed by the Code of Criminal Procedure, 1973 and/or the executive instructions framed by the State governing the terms of their appointment. Proviso appended to Article 309 of the Constitution of India is not applicable in their case. Their appointment is a tenure appointment. Public Prosecutors, furthermore retain the character of legal practitioners for all intent and purport. They of course; discharge public functions and certain statutory powers are also conferred upon them. Their duties and functions are onerous but the same would not mean that their conditions of appointment are governed by any statute or statutory rule [State of UP v Johri Mal, (2004) 4 SCC 714 : AIR 2004 SC 3800 ].

Person appointed as Public Prosecutor for a specified case to be instituted could be considered as Public Prosecutor even before its institution [Ramaiah, AIR 1961 AP 190 ]. A direction by the Judicial Secretary to a person to present an appeal under section 378 does not appoint him a Public Prosecutor [Marfal Ali, AIR 1958 Tri 26 ]. An advocate engaged by the Collector of Customs with the approval of the Legal Remembrancer to conduct a prosecution is not a Public Prosecutor [V.K. Godhwani v State, AIR 1965 Cal 79 : 1965 (1) Cr LJ 150 ]. Provision in Legal Remembrancer’s Manual does not enable Government of West Bengal to appoint any Public Prosecutor in respect of central territory of Andaman and Nicobar Islands [The State v Golam Rasul, AIR 1970 Cal 162 : 1970 Cr LJ 458 ]. Public Prosecutor appointed for a High Court in respect of cases is empowered to present appeals [Mansoor v State of MP, AIR 1971 SC 1977 : 1971 Cr LJ 1445 : (1971) 2 SCC 369]. Under section 24 there cannot be any appointment of ex-officio Public Prosecutor. The approval conveyed by the Registrar, without placing the matter before the full Court does not amount to consultation with the High Court [Supdt. and Remembrancer of Legal Affairs v Praffulla Maji, 1977 Cr LJ 853 : 81 Cal WN 423 : (1977) 81 Cal WN 423 : (1977) 4 Cal HC (N) 166].

In view of the amendment of section 24 made in the year of 2005 by Amendment Act, 25 of 2005 the petitioners

Page 7 of 18 [s 24 Public Prosecutors.— now cannot base their claim for appointment to the post of Public Prosecutors even if their names have been recommended by the concerned Deputy Commissioners of the concerned Districts [Pratap Narayan Gope v State of Jharkhand, 2008 Cr LJ 1550 (1552) (Jhar) : 2008 (1) AIR Jhar R 552].

In view of the Amendment of section 24 by the Amendment Act 25 of 2005, now a Public Prosecutor cannot be appointed directly but the said post of Public Prosecutor has to be filled up by promotion from Assistant Public Prosecutors [Pratap Narayan Gope v State of Jharkhand, 2008 Cr LJ 1550 (1552) (Jhar) : 2008 (1) JCR 491 (Jhar)].

The appointment of the person as Additional Public Prosecutor without consultation by District Magistrate with District Judge was held in sheer violation of provisions of sections 24(4) and (5) and could not be sustained [K. Nagappa v State of AP, 2008 Cr LJ 2147 (2150) (AP) : 2008 (2) Andh LT (Cri) 356 : 2008 (2) Andh LD (Cr) 148].

The discretion of the Government in the matter of appointment of Public Prosecutors/ Additional Public Prosecutors/Special Public Prosecutors, as the case may be, is very limited, in that they have to select and appoint a person from the panel of names sent by the District Magistrate in consultation with the District Judge, and any panel of names sent by the District Magistrate without the consultation of the District Judge, for appointments as Public Prosecutors/Additional Public Prosecutors/Special Public Prosecutors, as the case may be, are of no value, for the Government will have no benefit of the opinion of the Sessions Judge [Paramjit Singh Sadana v State of AP, 2008 Cr LJ 3432 (3438, 3439) (AP) : 2008 (2) Andh LT (Cri) 339 : 2008 (1) Andh LD (Cr) 712].

State Government is competent authority to appoint Public Prosecutor in Special Courts but appointment of petitioner was not made by the Government as per the procedure laid down under section 15 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. It was made in terms of the scheme formulated on recommendations made by commission of enquiry constituted by government. It was held that appointment of petitioner was not in accordance with law and was rightly not acted upon by respondents. So far appointment of 5th person was concerned that was not illegal as he was cadre prosecutor and was given promotion by following due process of law [Janna Kutti Mokshanandan v State of AP, 2006 Cr LJ 3034 (AP) : 2006 (4) Andh LT 155 : 2006 (2) Andh LD (Cr) 430].

The appointment of Public Prosecutor must not be political one. No appointment of public prosecutors or district counsel should, thus, be made either for pursuing a political purpose or for giving some undue advantage to a section of people. A political activity by the Public Prosecutor shall be disqualification to hold the post [State of UP v Johri Mal, AIR 2004 SC 3800 : (2004) 4 SCC 714 : 2004 (3) Crimes 83 : 2004 AIR SCW 3888]. The appointment of public prosecutor and Additional Public Prosecutor is a tenure appointment. They do not hold the civil post [Ibid]. The Assistant Public Prosecutor holds a civil post [Ibid; Samarendra Das, Advocate v State of WB, (2004) 2 SCC 274 : AIR 2004 SC 2924 : JT 2004 (2) SC 413 ].

It will be open to the district magistrate in consultation with the district judge to recommend the names of such eligible Assistant Public Prosecutors for appointment as a public prosecutor/additional public prosecutor who is ultimately selected for appointment and offered the post on tenure basis, he must resign his service before accepting the appointment on tenure basis [Jaidhari Roy v State of Bihar, 1996 Cr LJ 1498 (Pat)].

Where there was sufficient consultation with Metropolitan Sessions Judge, District Judge and District Magistrate in preparation of panel, the consultation can be on correspondence as well as on individual basis, no violation of section 24(4) Code of Criminal Procedure, 1973 found. [Surapaneni Ram Prasad v Government of AP, 1999 Cr LJ 2852 (AP)].

In absence of any special order it cannot be said that the District Magistrate cannot send a panel in relation to Metropolitan Area in absence of any evidence of violation of section 24(4) of Code of Criminal Procedure, 1973,

Page 8 of 18 [s 24 Public Prosecutors.— the appointment of Additional Public Prosecutor is valid [Surapaneni Ram Prasad v Government of AP, 1999 Cr LJ 2852 (AP)].

Filing of application in view of notification issued by Metropolitan Sessions Judge, by advocates offering their services for post of Public Prosecutors would not amount to solicitation of work within meaning of Bar Council of India Rules, 1975, rule 36 [Rajeswar B Reddy v K. Narsimhachari, 2002 Cr LJ 1 (AP) FB : 2001 (6) Andh LT 104 ].

Complaint was lodged for committing offence under Maharashtra Private Security Guards (Regulation of Employment and Welfare) Act, 1981. It was a complaint case instituted under section 200 of Code of Criminal Procedure, 1973. Private lawyer was engaged by the complainant. It was held that lawyer engaged by complainant was not a prosecutor within the meaning of section 24, 25, Code of Criminal Procedure, 1973. Hence provisions of section 301, Code of Criminal Procedure, 1973 were not applicable in this case [HDFC Bank Ltd v Nagpur District Security Guard Board, 2008 Cr LJ 995 (Bom) : 2008 All MR (Cri) 230 : 2008 (1) AIR Bom R 397].

It was held that the lawyer engaged by the complainant would not fall within the meaning of Prosecutor under section 24 or 25 of Code of Criminal Procedure, 1973, for the State Government or the Central Government has not so appointed him, assuming the complainant Board is State within the meaning of Article 12 of the Constitution. Therefore, section 301 Code of Criminal Procedure, 1973 would not apply to such a case [HDFC Bank Ltd v Nagpur District Security Guard Board, 2008 Cr LJ 995 (997) : 2008 All MR (Cri) 230 (Bom)].

As per section 5(6) of the Prevention of Corruption Act, the Court of Special Judge shall be deemed to be a Court of Session and the person conducting a prosecution before a Special Judge shall be deemed to be the Public Prosecutor as well. Therefore, there is no violation of section 24 Code of Criminal Procedure, 1973 where in the legal capacity of a Public Prosecutor, the Legal Advisor, Vigilance and Anti Corruption Bureau, who is legally empowered to prosecute the cases under the Act had presented the application before the District Court, signed by an authorized officer [V.K. Rajan (Dr) v State of Kerala, 2008 Cr LJ 909 (925, 926) (Ker) (DB) : ILR 2007 (4) Kerala 636 ].

A perusal of section 24 would show that the Central Government appoints its public prosecutor for conducting prosecution, appeal or other proceedings on its behalf and a State Government appoints its public prosecutors in conducting prosecution, appeal or other proceedings on its behalf. One has no control over the other. The Central Government or the State Government, as the case may be, may appoint a special public prosecutor for the purpose of any case or class of cases. Under section 378(1) the State Government may direct its public prosecutor to file an appeal from an order of acquittal while under section 378(2) the Central Government may direct its public prosecutor to file an appeal from an order of acquittal. The public prosecutor, thus, has to be associated in an appeal from an order of acquittal [Lalu Prasad Yadav v State of Bihar, 2010 Cr LJ 2427 (SC) : AIR 2010 SC 1561 : (2010) 5 SCC 1 ].

Advocates chosen by the State Government for conducting cases on its behalf have not been appointed to any post. They are not Advocates who are selected and appointed in terms of the provisions of section 24 of the Code. They have been chosen without any assurance that they would be engaged by the State Government. The Government is free to engage any one of them in any case and also to discontinue to engage one whose name has been mentioned in the panel [Md. Mustafa Kamal v State of WB, (2011) 3 Cal HN (Cal) 773 : (2011) 2 WBLR (Cal) 462 ].

By conferring benefits and status similar to the Advocate General, the Public Prosecutor does not become the Advocate General [Thankappan, EA v State of Kerala, 2011 (4) Ker LT 526 (Ker) : 2012 Cr LJ 1316 (Ker) (DB)]. [s 24.4] Presentation.— Public Prosecutor must present the facts without bias and without undue emphasis on any aspect of the case leaving the decision to the Court [Ram Rangaru v Emperor, (1914) ILR 42 Cal 422, 428; Amalesh Chandra v

Page 9 of 18 [s 24 Public Prosecutors.— The State, AIR 1952 Cal 481 , 484; Anil Kumar Tiwary v State of Jharkhand, 2013 (4) AJR 97 : 2013 (3) JLJR 195 ].

He is an officer of the Court and must act independently and in the interests of justice [Balwant v State of Bihar, AIR 1977 SC 2265 , 2266 : 1977 Cr LJ 1935 : (1977) 4 SCC 448 ; State of Bihar v Ram Naresh Pandey, AIR 1957 SC 389 : 1957 Cr LJ 567 ; Subhash Chander v State (Chandigarh Administration), AIR 1980 SC 423 : 1980 Cr LJ 324 : (1980) 2 SCC 155 ].

Public Prosecutor cannot appear against the State [Sud Lt Col KC v SC Gudimani, (1981) Cr LJ 1779 (Del); Sunil Kumar Pal v Phota Sheikh Pholar, AIR 1984 SC 1591 : (1984) 4 SCC 533 ]. [s 24.5] Appointment of Additional Public Prosecutor—validity.— Fact that only taking instruction from the main Public Prosecutor and with his able guidance, the Additional Public Prosecutor appointed under the authority of the said Government Order has been prosecuting the case, would go to show that no legal inconsistency or infirmity has been caused so as to cause prejudice to the accused, and therefore, either in the Government appointing the Additional Public Prosecutor in the manner aforementioned or in the said authority projecting the case taking instructions from the main Public Prosecutor and conducting the same, no deviation or departure from the scheme or object sought to be achieved has been made, but only in consonance with the letter and spirit of the relevant provisions of law [Re Additional Sessions Judge, Fast Track Court No II, Jindivanam, 2004 Cr LJ 1082 : 2004 Mad LJ (Cri) 14 : 2004 (2) Rec Cr R 577 (Mad)]. [s 24.6] Investigating officer’s duty.— The investigating officer is not bound to consult the Public Prosecutor before filing a police report. Investigation and prosecution are two distinct functions [R. Sarala v T.S. Velu, AIR 2000 SC 1731 : 2000 Cr LJ 2453 (2000) 4 SCC 459 : 2000 (2) Crimes 187 (SC)]. [s 24.7] Withdrawal.— A Public Prosecutor in charge of a case is competent to apply for withdrawal under section 321 [Sheonandan Paswan v State of Bihar, AIR 1983 SC 194 : (1983) Cr LJ 348 : (1983) 1 SCC 438 (SC)]. The public prosecutor cannot act like the post office on behalf of the State Government. He is required to act in good faith, peruse the materials on record and form an independent opinion that the withdrawal of the case would really subserve the public interest at large. An order of the Government on the public prosecutor in this regard is not binding [Bairam Muralidhar v State of AP, AIR 2014 SC 3437 : (2014) 10 SCC 380 : 2014 (9) Scale 62 : 2014 Cr LJ 4242 (SC)].

An Advocate General cannot function as Public Prosecutor unless appointed under section 24 [State of Kerala v Kolarveethil Krishnan, (1982) Cr LJ 301 (Ker) : 1981 Ker LT 839 : ILR (1982) 1 Ker 279 (DB)]. [s 24.8] Section 24(4)—Consultation.— Sub-section (4) makes it mandatory for the District Magistrate to hold consultation with the Sessions Judge and to prepare a panel of names [Neelima Sadanand Nartak v State of Maharashtra, 2005 Cr LJ (NOC) 264 (Bom) : AIR 2005 Bom 431 : 2005 (4) Mah LJ 326 : 2005 (5) Bom CR 750 ]. “Panel” must include more than one eligible person [V. Ramachandra v M.C. Jagadhodhara Gupta, (1986) Cr LJ 1820 (AP); see also Selvi J. Jayalalithaa v State of Karnataka, 2014 Cr LJ 9 (14) (SC) : 2014 (2) SCC 401 ].

The District Judge has to form an opinion with regards to merit, competence and capability of the concerned lawyers. It must be reflected in the consultative process. Where the District Judge mechanically forwards the list sent by the Bar Association without expressing his opinion with regard to the suitability of the persons in the list, it does not amount to consultation. The District Judge should apply his mind failing which the mandatory provisions of section 24, Code of Criminal Procedure, 1973 would not be complied with [Badri Vishal Gupta v State of MP, 2007 Cr LJ 4421 (4426) (MP-DB) : 2007 (3) MPHT 453].

In the case of appointment of Public Prosecutor, it is not mandatory that the District Collector should consult the District Judge. Even where panel is required to be forwarded, discretion of District Collector to prepare panel is

Page 10 of 18 [s 24 Public Prosecutors.— almost unfettered. The District Judge is not required to send the report of assessment about an existing incumbent [B Venkateswara Rao v State of AP, 2010 Cr LJ (NOC) 840 (AP)].

Under section 24(5), no person can be appointed by the State Government as Public Prosecutor or Additional Public Prosecutor unless his name appears to the panel of names prepared under section 24(4) [Surapaneni Ram Prasad v Government of AP, 2000 Cr LJ 354 , 355 para 11 (AP) : 1999 (2) Andh LT (Cri) 109 (DB)].

Persons included in the panel prepared for appointment of public prosecutor can be picked up for appointment as additional public prosecutor. Practice of preparing two separate panels one for Public Prosecutor and another for Assistant Public Prosecutor is simple practice and not rule [Gidwai Aghan Oraon v State of Jharkhand, 2004 Cr LJ NOC 47 : AIR 2004 Jhar HCR 407 : 2003 (2) BLJR 1215 : 2003 (4) Cur Cr R 476 (Jhar)].

When sub-sections (4) and (5) of section 24 of the Code, speak about preparation of a panel, out of which appointments against the posts of Public Prosecutor or Additional Public Prosecutor have to be made, then the Sessions Judge and the District Magistrate are required to consult and discuss the names of the persons fit to be included in the panel and to include such names in the panel. The expressions “panel of names of persons”, do not mean that some names are to be suggested by the Sessions Judge and some comments are to be made, in respect of those names by the District Magistrate, without proper consultation and discussion over such names. The statutory mandate is ought to be complied with by the District Magistrate and the Sessions Judge in its true spirit [Harpal Singh Chauhan v State of UP, AIR 1993 SC 2436 : 1993 AIR SCW 2843 : (1993) 3 SCC 552 : 1993 Cr LJ 3140 (SC)]

Where no panel of names for extension of term of Assistant District Government Counsel (Criminal) who were deemed to be Additional Public Prosecutors was prepared by the District Magistrate and the District and Sessions Judge strongly recommended extension for the counsel saying that so far as their work and conduct were concerned, the same had been approved but the District Magistrate, simply said that on the inquiry at his level, reputation, provisional work, behaviour and conduct of the persons as Government counsel was not found in accordance with the public interest, the requirement of section 24(4) or para 7.06 of Manual could not be held to be complied with. The District Magistrate was consequently directed to decide in accordance with law. Moreover, the quality of the Counsel’s work had to be judged and assessed by the District and Sessions Judge. The District Magistrate was required to consider the suitability of such person, from the administrative point of view in view of the strong recommendations about the quality of the counsel’s professional work, the District Magistrate should have applied his mind in consultation with the Sessions Judge, in respect of each individual case, instead of making a general and identical comment against all the counsel [Harparl Singh Chauhan v State of UP, AIR 1993 SC 2436 : 1993 AIR SCW 2843 : 1993 Cr LJ 3140 : (1993) 3 SCC 552 .

In making appointment, the State Government would give primacy to the opinion of the District Judge [State of UP v Johri Mal, AIR 2004 SC 3800 (3813) : (2004) 4 SCC 714 : 2004 (3) Crimes 83 : 2004 AIR SCW 3888, see also Samarendra Das, Advocate v State of WB, (2004) 2 SCC 274 : AIR 2004 SC 2924 : JT 2004 (2) SC 413 ].

The appointment of the District Government Counsel cannot be equated with the appointments of the High Court and the Supreme Court Judges and a distinction must be made between professional engagement and a holder of high public office. The provisions of the Constitution which impelled the Supreme Court in Special Reference case, to give the meaning of “consultation” as “concurrence” and wherein the Chief Justice of India will have a primacy, cannot be held to be applicable in the matter of consultation between the District Magistrate and the District Judge for the purpose of preparation of a panel of the District Government Counsel [State of UP v Rakesh Kumar Keshari, AIR 2011 SC 1705 : (2011) 5 SCC 341 ; State of UP v Ashok Kumar Nigam, (2013) 3 SCC 372 : 2012 (12) Scale 551 ]. The District Judges and the District Magistrates, who are required to be consulted by the State Government, are expected to make objective assessment of the work, conduct and performance of the candidates and make recommendations keeping in view larger public interest in contradistinction to the interest of the particular political party [State of UP v Ajay Kumar Sharma, AIR 2014 SC 352 : (2014) 3 SCC 568 ].

Page 11 of 18 [s 24 Public Prosecutors.—

There is no provision either in the Code or in the UP Legal Remembrancer Manual 1975, permitting District Magistrate to appoint any panel lawyer without the recommendation of the District Judge [Vinay Kumar Srivastava v State of UP, 2006 Cr LJ 702 (707) (All) : 2006 (1) All LJ 150]. [s 24.9] Extension of term of Public Prosecutor (Legal Remembrances Manual, section 15.— Section 24 of the Code of Criminal Procedure, 1973 does not speak about the extension or renewal of the term of the Public Prosecutor or Additional Public Prosecutor. But after the expiry of the term of the appointment of persons concerned, it requires the same statutory exercise, in which either new persons are appointed or those who have been working as Public Prosecutor or Additional Public Prosecutor, are again appointed by the State Government, for a fresh term. The procedure prescribed in the Legal Remembrancer’s Manual to the extent it is not in conflict with the provisions of section 24 of the Code shall be deemed to be supplementing the statutory provisions. But merely because there is a provision for extension or renewal of the term, the same cannot be claimed as a matter of right [Harpal Singh Chauhan v State of UP, AIR 1993 SC 2436 : 1993 AIR SCW 2843 : (1993) 3 SCC 552 : 1993 Cr LJ 3140 (SC)].

In the matter of engagement of a District Government Counsel the concept of public office does not come into play. However, it is true that in the matter of Counsel, the choice is that of the Government and none can claim a right to be appointed. This must necessarily be so because it is a position of great trust and confidence. The provision of Article 14, however, will be attracted to a limited extent as the functionaries named in the Code of Criminal Procedure, 1973 are public functionaries. They also have a public duty to perform. If the State fails to discharge its public duty or acts in defiance, deviation and departure of the principles of law, the Court may interfere. The Court may also interfere when the legal policy laid down by the Government for the purpose of such appointments is departed from or mandatory provisions of law are not complied with. Judicial review can also be recorded to, if a holder of a public office is sought to be removed for reason de hors the statute [State of UP v Johri Mal, (2004) 4 SCC 714 : AIR 2004 SC 3800 ].

The judgment in State of UP v Johri Mal, (2004) 4 SCC 714 : AIR 2004 SC 3800 was followed in State of UP v Rakesh Kumar Keshari, (2011) 5 SCC 341 wherein it was held that renewal of term cannot be claimed as a matter of right [See also State of UP v Ajay Kumar Sharma, AIR 2014 SC 352 : (2014) 3 SCC 568 ].

The Legal Remembrancer Manual is merely a compilation of executive orders and is not a “law” within the meaning of Article 13 of the Constitution of India. The executive instructions/orders can be amended, altered or withdrawn at the whims and caprice of the executive for the party in power. Executive instructions, it is beyond any cavil, do not carry the same status as of a statute [State of UP v Johri Mal, (2004) 4 SCC 714 : AIR 2004 SC 3800 ; State of UP v Ajay Kumar Sharma, AIR 2014 SC 352 : (2014) 3 SCC 568 ].

The extension of the term of Public Prosecutor was on the basis of the recommendation by the District Magistrate having approved by the District and Sessions Judge. No panel was drawn as mandated by section 24(5) of the Code of Criminal Procedure, 1973. There was no effective contemplation as contemplated under section 24 of the Code. It was held that the appointment of the respondents as Government Pleader/Additional Government Pleader would not be given the stamp of approval and accordingly liable to be quashed. [Anita Khare v State of MP, 2011 Cr LJ 43 (47) (MP) : (2011) 2 RCR (Criminal) 32 (MP)]. [s 24.10] “Regular Cadre of prosecuting officers”—Section 24(6), CrPC.— The expression “regular cadre of Prosecuting officers” contained in sub-section (6) of section 24 must comprise a regular cadre of prosecuting officers going up to the level of Additional Public Prosecutor and Public Prosecutor. Thus, the expression “regular Code of Prosecutor officer”.

Admittedly, the regular cadre of Prosecuting Officers in the State of Kerala as well as in the State of UP does not include Public Prosecutors or Additional Public Prosecutors. A combined reading of sub-section (6) and sub-section (9) of section 24 gives a clue to the intention of the Legislature in determining the scope of the expression “regular cadre of Prosecuting Officers” occurring in sub-section (6). The intention of introducing subsection (6) and the deeming fiction in sub-section (9) was in order to safeguard the promotional rights of

Page 12 of 18 [s 24 Public Prosecutors.— Prosecuting Officers in such of the States where there is already in existence regular cadre consisting of hierarchy of Prosecuting Officers going to the top level of Additional Public Prosecutors and Public Prosecutors [KJ John, Assistant Public Prosecutor Grade I Palai v State of Kerala, AIR 1990 SC 1902 : 1990 Cr LJ 1777 : (1990) 4 SCC 191 : 1991 (1) LLJ 1 ].

There is no obligation on the State Government to create a regular cadre of prosecuting officer. Hence, it is not necessary that appointment to the post of public prosecutor should be made from the category of Assistant Public Prosecutor under special rules [Joshy Nambudakam v State, 2007 Cr LJ (NOC) 937 (Ker)].

In a case relating to the recruitment of Assistant Public Prosecutor through the Public Service Commission, the advertisement issued was silent about the cut-off marks for viva voce test, though the Rules for the Gujarat State framed under Article 309 of the Constitution provided for the same. It was held by the Supreme Court that introduction of cut-off marks by the Public Service Commission before the interview started after due notice to candidates was not unjustified [Barot Vijaykumar Balakrishna v Modh Vinay Kumar Dasrathlal, AIR 2011 SC 2829 : (2011) 7 SCC 308 ]. [s 24.11] Section 24(7)—Appointment.— If a person is appointed without possessing the statutory qualifications the appointment is void [Supdt. and Remembrancer of Legal Affairs v Prafulla Maji, 1977 Cr LJ 853 : (1977) 4 Cal HC (N) 166 Para 5-6 : 1977 Cr LJ 853 : (1977) 81 Cal WN 423].

In the instant case the respondent was appointed after consultation with the High Court. Her appointment was duly notified and she had more than 7 years’ practice as an advocate. It was held that she was fully entitled to hold the office of standing counsel (Criminal) Public Prosecutor for the High Court [Tanvir Ahmad Mar v Government of NCT of Delhi, 2004 Cr LJ 3777 : (2004) 112 DLT 631 : (2004) 75 DRJ 644 (Delhi)].

There are two modes of appointment of the Public Prosecutors, one, preparation of a panel of names of persons who, in the opinion of the District Magistrate after consultation with the Sessions Judge, are fit to be appointed as Public Prosecutors or Additional Public Prosecutors for the district. The other, appointment of Public Prosecutor or an Additional Public Prosecutor from amongst the persons in a State where exists regular cadre of prosecuting officers. A person is eligible to be appointed as Public Prosecutor only if he has been in practise as an advocate for not less than seven years [Deepak Aggarwal v Keshav Kaushik, (2013) 5 SCC 277 : 2013 (1) Scale 564 ]. [s 24.12] Section 24(8)—Appointment—Special Public Prosecutor.— Power to appoint special public prosecutor is discretionary power vested in the Government. An accused cannot claim as a matter of right that the prosecution be conducted by a particular prosecutor and not by any other [Anoop v State of MP, 2006 Cr LJ 2061 (2062) (MP)]. The power under section 24(8) is liable to judicial review only when such exercise and the resultant decision is palpably arbitrary and against the public interest [Anoop v State of MP, 2006 Cr LJ 2061 (2062) (MP)]. Appointment of another Special Public Prosecutor in place of earlier appointee without cancelling the earlier appointment is not illegal (though it is improper). Acts of the later appointtee are saved by the de facto doctrine [Sheonandan Paswan v State of Bihar, AIR 1983 SC 194 para 50 : 1983 Cr LJ 348 : (1983) 1 SCC 438 ].

The Central or the State Government, as the case may be, appoint a special public prosecutor for the purpose of any case or class of cases. Under section 378(1), the State Government may direct its public prosecutor to file an appeal from an order of acquittal. The public prosecutor thus has to be associated in appeal from an order of acquittal. [Lalu Prasad Yadav v State of Bihar, 2010 Cr LJ 2427 : AIR 2010 SC 1561 : (2010) 5 SCC 1 ].

For the appointment of Special Public Prosecutor, competent authority is the State Government and not the District Magistrate. Where no provision is shown for delegation of powers under section 24(8) order of appointment made by District Magistrate is illegal [R.N. Tiwari v State of Madhya Pradesh, (1990) Cr LJ 2468 (MP) : 1990 Jab LJ 524 (DB)].

Page 13 of 18 [s 24 Public Prosecutors.—

For guidelines for appointment of Special Public Prosecutor, see Prakash Pralhad Patel v State of Maharashtra, 2008 Cr LJ (NOC) 1147 (Bom) : 2008 (5) AIR Bom R 189 : 2008 All MR (Cri) 2051.

It is for the State Government to be satisfied about the credentials of the Advocate being appointed as a Special Public Prosecutor. However, the Government cannot issue the order unless the Remembrancer of Legal Affairs, for the reasons to be recorded and having regard to the nature of the case, gravity of the matter and the public interest involved in the matter, recommend such appointment. In the instant case the Remembrancer of Legal Affairs has done precious little and, in fact, nothing, except to put his signature on the proposal received by the Home Ministry or on the proposal submitted before the Hon’ble Chief Minister.

A multiple murder in broad day light by itself cannot be a reason for appointment of a Special Public Prosecutor and that too at the Government expenses. The power under section 24(8) of Code of Criminal Procedure, 1973 read with rule 22(1) of the Rules of Legal Affairs is required to be used sparingly and in public interest [Prakash Pralhad Patel v State of Maharashtra, 2008 Cr LJ (NOC) 1147 (Bom) : 2008 All MR (Cri) 2051 : 2008 (5) AIR Bom R 189].

When there is appointment of Special Public Prosecutor without any reason, it is illegal [Rajender Nigam v State of MP, 1998 Cr LJ 998 : 1998 (1) Hindu LR 138 : 1997 (4) Cur GIR 236].

When a request for appointment of Special Public Prosecutor is made by a private person, the request will have to be scrutinised and legal Remembrancer will have to scrutinise the case and after independently applying his mind come to the conclusion whether such an appointment should be made or not [Omprakash Baheti v State of Maharashtra, 2006 Cr LJ 3105 (3110) (Bom)]. Remembrancer of Legal Affairs (RLA) has to get himself satisfied about the necessity of the appointment of Special Public Prosecutor having regard to the nature of the case, gravity of the matter and public interest involved in the case in which a request has been made for such appointment and to ensure that such satisfaction reflects in the order recorded in writing while approving the appointment. Following of this procedure, ensures transparency and accountability towards the public [Jayesh Pratap Doshi v State of Maharashtra, 2011 Cr LJ (NOC) 342 (Bom); Prakash Pralhad Patel v State of Maharashtra, 2008 Cr LJ (NOC) 1147 (Bom) : 2008 (5) AIR Bom R 189 : 2008 All MR (Cri) 2051].

The appointment of Special Public Prosecutor at the request of private complainant is open to judicial review and the Court can find out whether the appointment writ has been made in terms of the Maharashtra Law Officers (Appointment, Conditions of Service and Remuneration Rules, 1984. Omprakash Baheti v State of Maharashtra, 2006 Cr LJ 3105 (3107) (Bom). When the Code itself by virtue of provisions of section 24(8) empowers the Government to make such appointment of the Special Public Prosecutor, same cannot be permitted to be interpreted in this manner by making averments or allegations about the arbitrariness or the socalled fair trial without showing that how the accused is prejudiced. When no prejudice is shown to have been caused to the accused, he cannot have any say in the matter of an appointment of the Prosecutor [Lalji v State of Gujarat, 2013 (1) Guj LR 452 (463) (Guj) : 2013 (2) RCR(Criminal) 479]. In the matter of appointment of the Special Prosecutor, utmost fairness and objectivity should be observed [Centre for PIL v UOI, 2012 Cr LJ 1153 (1154) (SC) : AIR 2012 SC 3725 ].

On a conjoint and harmonious reading of section 46 of the Prevention of Money Laundering Act along with section 24 of the Code of Criminal Procedure, 1973 it appears that the expression “person conducting the prosecution before the Special Court” in sub-section (1) of section 46 of the Act, would mean that such a person must either be appointed by the Central or the State Government after following the procedure prescribed in sub-section (4), (5) along with sub-section (7) of section 24 of the Code or in the alternative after following the procedure in sub-section (6) read with sub-section (7) of section 24 of the Code. Both the provisions, namely, the provisions of section 46 of the Act and section 24 of the Code must be read together, since section 46 of the Act, being a later statute, makes an express reference to the provision of the preexisting Central law, namely the provisions of section 24 of the Code [Center for PIL v UOI, 2011 (4) Scale 583 : 2012 Cr LJ 1153 (SC)].

Page 14 of 18 [s 24 Public Prosecutors.—

Appointment of Special Public Prosecutor for trial does not make him eligible to prosecute the appeal on behalf of the prosecuting agency before the High Court, since the appointment of a Public Prosecutor, as envisaged under section 24(1) Code of Criminal Procedure, 1973 in the High Court is different from the appointment of a Public Prosecutor for the District Courts [K. Anbazhagan v State of Karnataka, 2015 (5) Scale 577 ].

In a case relating to the Fodder Scam in Bihar, where the State Government changed the Public Prosecutor, the petitioner filed a writ petition under Article 32 for a writ of mandamus. It was held by the Supreme Court (per majority) that the appointment of Public Prosecutor, advocates, etc. is the prerogative of the State Government in power and the Court has no role to play. It was observed that if the petitioners had any grievance regarding removal of the Public Prosecutor, they should have submitted the same before the Special Judge or the High Court. It was held that on facts, the contention of the petitioners that the prosecutor was purposely changed to give benefits to respondents is not borne out by the material on record [Rajiv Ranjan Singh v UOI, (2006) 6 SCC 613 : (2006) 3 SCC (cri) 125 ]. Procedure prescribed under sub-sections (4) and (5) for processing through a panel as contemplated therein is not applicable to the appointment made under sub-section (8) of section 24 of the Code of Criminal Procedure, 1973 [State of AP v Margadarsi Financiers, 2009 Cr LJ 2705 (AP) (DB) : 2009 (2) Andh LD (Cr) 300; Tera Chinnappa Reddy v Govt. of Andhra Pradesh, 2014 Cr LJ 2071 (AP) : 2014 (1) Andh LD (Cr) 568 (AP); P Jigesh and Madhavan Maniyara v State of Kerala and C.K. Sreedharan, 2013 (1) Ker LT 681 : 2013 Cr LJ 3250 (Ker); Kuriachan Chacko v Secretary to Government, 2013 (1) Ker LT SN 29 : 2012 (3) KHC 614 (Ker)]. Sub-section (8) of section 24, Code of Criminal Procedure, 1973, provides for appointment of Special Public Prosecutor. Either directly or by necessary implication, it does not refer to the consultation process. The appointment under this provision is almost akin to the one under sections (1) and (2). Special Public Prosecutor can be appointed without there being any panel forwarded by the District Collector, in consultation with the District Judge [B. Venkateswara Rao v State of AP, 2010 (3) Andh LD 268 : 2010 (4) All LT 142 : 2010 (2) LS 58 : 2010 Cr LJ (NOC) 840 (AP); 2009 (2) Andh LD (Cr) 300 (Overriding 2008 (1) Andh LD (Cr) 712 (AP)].

The Government undoubtedly has the power to withdraw or revoke the appointment of a Special Public Prosecutor within of section 21 of the General Clauses. However, the State Government was held to have acquiesced in the process of appointment where the State Government did not raise issue of manner/issue of consultation of the Chief Justice of the High Court of the State for seventeen months in the matter of appointment of the respondent as Special Public Prosecutor. Thus, the Government could not subsequently raise grievance that there was no consultation/insufficient consultation of the Chief Justice of the High Court and as such could not revoke the appointment [Selvi J Jayalalithaa v State of Karnataka, 2014 Cr LJ 9 (14) (SC) : 2014 (2) SCC 401 ]. It is not enough for one to call in question the appointment of a Special Public Prosecutor only on the basis of the plea that such an appointment was solicited by the victim or someone else. It must be demonstrated that the State has failed to apply its mind with regard to the nature of the case before appointing a Special Public Prosecutor [Bharaju Rambabu v State of AP, 2014 Cr LJ 3425 (AP) : 2014 (1) Andh LD (Cr) 244].

The jurisdiction of the High Court to examine the correctness and sustainability of the order passed under section 24(8), Code of Criminal Procedure, 1973 by way of judicial review, cannot be exercised, as if it were an Appellate Authority/Appellate Court. No interference is possible, unless such decision taken by the Government is per se arbitrary and against the public interest [Jigesh v State of Kerala, 2013 (1) Ker LT 681 : 2013 (1) KLJ 825 : ILR 2013 (1) Ker 867 (Ker)].

The Supreme Court has suggested that the procedure for appointment of Special Public Prosecutor for the Central Bureau of Narcotics, should be brought in line with that generally followed for the appointment of public prosecutors, as mandated under section 24 of the Code of Criminal Procedure, 1973 [See Thana Singh v Central Bureau of Narcotics, 2013 Cr LJ 1262 (1271) (SC): 2013 AIR SCW 800].

Special Public Prosecutor may be appointed by the Central or the State Government for the purpose of any case or class of cases but he has to be a person who has been in practise as an advocate for not less than 10 years [Deepak Aggarwal v Keshav Kaushik, (2013) 5 SCC 277 : 2013 (1) Scale 564 ].

Page 15 of 18 [s 24 Public Prosecutors.— [s 24.13] Appointment of Special Public Prosecutor for conduct of cases under Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.— The advocate should be of a choice of victim of atrocity and also in the opinion of the District Magistrate/SDM an eminent senior advocate. There is no conflict between rule (5) and section 15 of the SC and ST (Prevention of Atrocities) Act, 1989. The appointment of the senior advocate under section 4(5) of the Rules is not guided by the general provisions and the same cannot called in question, particularly without challenging the vires of the rule [Satki Devi v Tikam Singh, 2006 Cr LJ 4721 (2729-30) (Raj) : 2006 (2) CrLR (Raj) 1450 ].

Appointment of Special Public Prosecutor by the Government without ascribing justifiable reasons and circumstances deserves to be quashed [Poonamchand Jain v State of MP, 2001 Cr LJ 3113 (MP) : 2001 (2) MPLJ 61 ].

The question as to whether or not it is necessary to appoint a Special Public Prosecutor in a case, and if so the person to be appointed as such shall be within the discretion and prerogative of the state. The state cannot surrender its discretion to the choice of an individual [Leevineni Sheshagiri Rao v Government of AP, 2004 Cr LJ 52 : 2003 (2) Andh LD (Cri) 637 : 2004 (1) All CrLR 107 (AP); Anoop v State of MP, 2006 Cr LJ 2061 (2062) (MP)].

Merely because the advocate appointed as Special Public Prosecutor had already appeared on behalf of the complainant would not affect the fair trial. The only embargo provided by section 24(8) is that he should have 10 years standing as an advocate [Nemichand v State of Rajasthan, (2006) Cr LJ 4258 (4259) (Raj)]. [s 24.14] Special Public Prosecutor.— For appointment of Special Public Prosecutor recommended by the Joint Commissioner of Police (Crime) for conducting a sensitive case involving notorious gangster and pertaining to illegal smuggling and concealment of arms and explosives, State Government should pay higher remuneration or provide additional facilities to Advocate coming from outside Mumbai [A.S. Shirsat v State of Maharashtra, 2007 Cr LJ 548 (Bom)]. [s 24.15] Special Public Prosecutor may be appointed even for incidental proceedings.— Once a crime is registered, the incidental proceedings like bail application or anticipatory bail application by the accused may follow and therefore, it is permissible for the Government to appoint Special Public Prosecutor even in the incidental proceedings. The mere use of words “Sessions Trial” in the order does not violate the order [Omprakash Baheti v State of Maharashtra, 2006 Cr LJ 3105 (3110) (Bom) : 2006 (4) RCR (Criminal) 737]. [s 24.16] Public Prosecutor under NIA—Status as compared to Public Prosecutor under Section 24, Code of CrPC.— Public Prosecutor appointed under section 24 of the Code of Criminal Procedure, 1973 cannot stand on the same footing with a Public Prosecutor appointed under the National Intelligence Agency [Saraswati Rai v UOI, 2011 Cr LJ 3020 (3033) (Cal)]. [s 24.17] State as prosecutor.— In criminal cases the State is the prosecutor. The State by the Public Prosecutor is the party and not the complainant [Muraji, 13 B 389]. The Public Prosecutor may appear without authority (section 301) and without permission of Magistrate (section 302). As to appointment of other persons by Magistrates to conduct prosecution, see section 302(1)(2). Private prosecutors or pleaders may appear with the permission of the Magistrate (section 302) and conduct under the direction of the Public Prosecutor (section 301). Withdrawal of case by Public Prosecutor (section 321). Sessions trial to be conducted by Public Prosecutor (section 225). Certificate by Public Prosecutor requires for trial of a person not complying with conditions of pardon (section 308). Filing of appeal in cases directed by State Government (sections 377 and 378).

Public Prosecutor not to defend officer against whom allegation of acts of commission or omission are made [Sudhir M. Vora v Commissioner of Police for Greater Bombay, 2004 Cr LJ 2278 : 2004 (2) Cur Cr R 469 : 2004 All MR 2745 (Bom); Khannapan v Abbas, 1986 Cr LJ 1022 : 1985 Mad LW (Cri) 159 : 1985 TLNJ 199 (Mad)]. [s 24.18] Role of Prosecutor.—

Page 16 of 18 [s 24 Public Prosecutors.— The role of the prosecutor in any criminal trial (whether at the instance of the State or of a private party) is to safeguard the interests of both the complainant and the accused. The right to be heard includes the right to be represented by an able spokseman of one’s confidence. This right belongs to the complainant and to the accused, both. The complainant also needs assistance. The prosecutor is bound by law and professional ethics and by his role as an officer of Court to employ only fair measures. Hence, it cannot be said that when Special Public Prosecutors are appointed, whether paid by the State or by private party, the trial must be presumed to be biased [Vijay Valia v State of Maharashtra, (1986) Cr LJ 2093 paras 13–16 : (1986) 88 Bom LR 491 (Bom)— Contra: Babu v State of Kerala, (1984) Cr LJ 499 : 1984 Ker LT 164 : 1984 Ker LJ 92 : 1984 All CrLR 336 (Ker); State of UP v Johri Mal, AIR 2004 SC 3800 (3813) : (2004) 4 SCC 714 : 2004 (3) Crimes 83 : 2004 AIR SCW 3888].

A public prosecutor has a wider set of duties than to merely ensure that the accused is punished, and includes the duties of ensuring fair play in the proceedings, all relevant facts are brought before the Court in order for the determination of truth and justice for all the parties including the victims. It must be noted that these duties do not allow the prosecutor to be lax in any of his duties as against the accused [Sidhartha Vashisht v State (NCT of Delhi), AIR 2010 SC 2352 : 2010 (6) SCC 1 : 2010 (4) Scale 1 ].

If the Court finds that the Public Prosecutor is not properly discharging the duty to be performed by him, nothing prevents the Court from exercising its power to ensure that the proper evidence is placed before the Court and no mischief is played by the Prosecutor which may frustrate the basic principles that the real offender must be punished and the innocent persons must be acquitted. That is the proactive role expected from the Court but not the role of substituting a lawyer of the original complainant by replacing the Public Prosecutor while conducting the trial which is neither permissible as per the provisions of section 225 of the Code of Criminal Procedure, 1973 nor can be read under section 225 of the Code [PB Desai v State of Gujarat, 2011 Cr LJ 3861 (3865) (Guj) (DB); VK Sasikala v State, (2012) 9 SCC 771 : AIR 2013 SC 613 ].

On the completion of the investigation in a criminal case, the prosecuting agency should apply its independent mind, and require all shortcomings to be rectified, if necessary by requiring further investigation. It should also be ensured, that the evidence gathered during investigation is truly and faithfully utilized, by confirming that all relevant witnesses and materials for proving the charges are conscientiously presented during the trial of a case. This would achieve two purposes. Only persons against whom there is sufficient evidence, will have to suffer the rigors of criminal prosecution. By following the above procedure, in most criminal prosecutions, the concerned agencies will be able to successfully establish the guilt of the accused [State of Gujarat v Kishanbhai, (2014) 5 SCC 108 ].

A Public Prosecutor has also to perform some administrative functions and if he is found lacking administrative capability, the Government may not renew his term [State of UP v Johri Mal, AIR 2004 SC 3800 (3813) : (2004) 4 SCC 714 : 2004 (3) Crimes 83 : 2004 AIR SCW 3888].

Disciplinary proceedings against the Government counsel making several incorrect statements in letter to the Central Government informing as to orders passed by the Court not proper [TC Kaushik v UOI, AIR 2007 SC 128 ].

In a Madras case, Government Advocate made a statement on several occasions that he was unable to take instructions from the concerned authorities. It was held that such attitude deserved to be deprecated. [G Shyamala v State of TN, (1991) Cr LJ 1471 (Mad) (Arunachalam J)]. [s 24.19] Trial without appointing Public Prosecutor—Effect.— Trial conducted by the Magistrate himself without appointing public prosecutor is a total breach of the cannons of ethics such trial is vitiated and conviction liable to be set aside [State of Karnataka v Ramachandra Bhimrao Bhamane, 2004 Cr LJ 330 : AIR 2003 Kant HCR 2973 : 2004 (2) Cur Cr R 147 : 2003 (4) KCCR 3047 (Kant)]. [s 24.20] Case transferred to another State.—

Page 17 of 18 [s 24 Public Prosecutors.— It is the prerogative of the State Government to appoint a public prosecutor to conduct the case which is pending in the Sessions Division of the State. The Supreme Court while passing order of transfer, can give appropriate direction as to which State should appoint the Public Prosecutor to conduct that particular case. Such orders are passed having regard to the circumstances of the case and the grounds on which the transfer has been made. In this case nothing has been stated in the order of the transfer. The provisions of section 24, Code of Criminal Procedure, 1973 shall prevail and it is for the appropriate State Government within whose area, the trial is conducted to appoint Public Prosecutor under sub-sections (3) to (7) of section 24 of the Code, that is the Government of the State to which the case has been transferred [Jayendra Saraswati Swamigal v State of TN, 2008 Cr LJ 3877 (3881) : AIR 2008 SC 2997 : 2006 (1) Mad LW (Cri) 722 : (2008) 3 Mad LJ (Cri) 394 reversed)]. [s 24.21] Judicial review in the matter of appointment or extension of term.— The Assistant District Government Counsel (Criminal) cannot claim, as a matter of right, that their terms should have been extended or that they should be appointed against the existing vacancies, but, certainly, they can make a grievance that either they have not received the fair treatment by the appointing authority or that the procedure prescribed in the Code and in the Manual have not been followed. While exercising the power of judicial review even in respect of appointment of members of the legal profession as District Government Counsel, the Court can examine whether there was any infirmity in the “decision making process”. Of course, while doing so, the Court cannot substitute its own judgment over the final decision taken in respect of selection of persons for those posts [Harpal Singh Chauhan v State of UP, AIR 1993 SC 2436 : 1993 Cr LJ 3140 : (1993) 3 SCC 552 ]. [s 24.22] Removal of District Government Counsel.— In the instant case, the renewal of term of petitioner a District Government Counsel, was refused basically on the report of the District Magistrate wherein he had highlighted lack of integrity and efficiency of the petitioner and referred to one specific case under section 302, Indian Penal Code, 1860 wherein because of the petitioner bail was granted to the accused and before recommending his removal, explanation was also called for from the petitioner which was not found to be satisfactory. Held, simply because no reasons were assigned in order for his removal will not render it erroneous. Cogent reasons were available on record which prompted the State Government to refuse the renewal of the term of the petitioner [Mahendra Kumar Mudgal v State of UP, 2009 Cr LJ 4312 (4314, 4315) (All) : 2009 (5) All LJ 708].

The renewal of the term of the petitioner (District Government Counsel) was refused on the ground that certain complaints were received against him, but no notice was issued to the petitioner requiring him to explain his conduct. It was held that the order refusing to renew term was improper [Rajesh Kumar Kulshrestha v State of UP, 2009 Cr LJ 3493 (3494) (All) : 2009 (4) All LJ 679].

Where the petitioner, District Government Counsel was removed on the basis of allegations against him and the reply of the petitioners to show cause notices, it was held that the removal could not be said to be arbitrary or perverse or to be based on no material [Sharad Kumar Agrawal v State of UP, 2010 Cr LJ (NOC) 506 (All) : 2010 (1) ALJ 597 ]. [s 24.23] Appointment and removal of Law Officers.— A realistic assessment of the requirement for appointment of Law Officers by State is the first and foremost step that State should take for any prudent exercise of the power of appointment of law officers. It should be fair and reasonable, transparent and credible. It is not only the demand of rule of law; but, also by reason of doing complete justice which Courts obliged to do in each and every case. A lawyer has no right to be appointed as State Government counsel at any level. Even he does not have vested right to claim extension in term of appointment. [State of Punjab v Brijeshwar Singh Chahal, AIR 2016 SC 1629 : (2016) 3 Mad LJ 776].

The appointment of law officers was cancelled under relevant rules. The term got expired during pendency of the appeal. The interference with cancellation was held to be uncalled for. However the cancellation order was modified to have been passed under relevant Rules entitling Law Officers pay of one month’s retainer in lieu of notice period. [State of Maharashtra v Kishore M Gadhave Patil, AIR 2017 SC 4425 : 2017 (11) Scale 112 ].

Page 18 of 18 [s 24 Public Prosecutors.—

11 Substituted by the Code of Criminal Procedure (Amendment) Act, 1978 (45 of 1978), Section 8 (w.e.f. 18 December 1978).

12

Inserted by the Code of Criminal Procedure (Amendment) Act, 2005 (25 of 2005), section 3 (w.r.e.f. 18 December 1978).

13

Inserted by the Code of Criminal Procedure (Amendment) Act, 2008 (5 of 2009), section 3 (w.e.f. 31 December 2009).

End of Document

[s 25] Assistant Public Prosecutors.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER II CONSTITUTION OF CRIMINAL COURTS AND OFFICES

The Code of Criminal Procedure, 1973 CHAPTER II CONSTITUTION OF CRIMINAL COURTS AND OFFICES [s 25] Assistant Public Prosecutors.— (1) The State Government shall appoint in every district one or more Assistant Public Prosecutors for conducting prosecutions in the Courts of Magistrates. 14[(1A) The Central Government may appoint one or more Assistant Public Prosecutors for the purpose of conducting any case or class of cases in the Courts of Magistrates.] (2) Save as otherwise provided in sub-section (3), no police officer shall be eligible to be appointed as an Assistant Public Prosecutor. (3) Where no Assistant Public Prosecutor is available for the purposes of any particular case, the District Magistrate may appoint any other person to be the Assistant Public Prosecutor in charge of that case : Provided that a police officer shall not be so appointed— (a) if he has taken any part in the investigation into the offence with respect to which the accused is being prosecuted; or (b) if he is below the rank of Inspector. [s 25.1] STATE AMENDMENTS IN SECTION 25 Orissa.—The following amendments were made by Orissa Act 6 of 1995, Section 2 (w.e.f. 10 March 1995). Section 25(2).—In Section 25 of the Code of Criminal Procedure, 1973 (2 of 1974), to sub-section (2) of the following proviso shall be inserted namely:—

Provided that nothing in this sub-section shall be construed to prohibit the State Government from exercising its control over Assistant Public Prosecutor through Police Officers.

Uttar Pradesh.—The following amendments were made by U.P. Act No. 16 of 1976, section 5. Section 25(2).—In its application to the State of Uttar Pradesh to section 25(2) a proviso added and be deemed always to have been so added:—

Page 2 of 4 [s 25] Assistant Public Prosecutors.—

Provided that nothing in this sub-section shall be construed to prohibit the State Government from exercising its control over Assistant Public Prosecutor through police officers.

West Bengal.—The following amendments were made by W.B. Act 17 of 1985 section 3. Section 25(3).—In its application to the State of West Bengal, for sub-section (3) of Section 25 following subsection shall be substituted:—

(3) Where no Assistant Public Prosecutor is available for the purposes of any particular case, any advocate may be appointed to be the Assistant Public Prosecutor in charge of that case,—

(a)

where the case is before the Court of a Judicial Magistrate in any area in a sub-division wherein the headquarters of the District Magistrate are situated, by the District Magistrate; or

(b)

where the case is before the Court of a Judicial Magistrate in any area in a sub-division, other than the sub-division referred to in Clause (a), wherein the headquarters of the Sub-divisional Magistrate are situated, by the Sub-divisional Magistrate; or

(c)

where the case is before the Court of a Judicial Magistrate in any area, other than the area referred to in Clauses (a) and (b), by a local officer (other than a police officer) specially authorised by the District Magistrate in this behalf. Explanation.—For the purposes of this sub-section,—

(d)

“advocate” shall have the same meaning as in the Advocates Act, 1961;

(ii)

“local officer” shall mean an officer of the State Government in any area, other than the area referred to in Clauses (a) and (b).

COMMENTS [s 25.2] Changes.— This section is added by new Code (1973 Act). [s 25.2.1] 1978 Amendment .— Sub-section (1A) has been inserted. [s 25.3] Validity.— The provisions of sections 24(8) and 25(1) of the Code do not violate Article 14 of the Constitution. [Vijay Valia v State of Maharashtra, 1986 Cr LJ 2093 : (1986) 88 Bom LR 491 (Bom)]. [s 25.4] Scope and application of section 25.— It contains a new provision for appointment of Assistant Public Prosecutors for Courts of Magistrates in every district, by the State Government. Provision has also been made that, where no such Assistant Public Prosecutor is available, for any particular case the District Magistrate may appoint any other person including a police officer not below the rank of an Inspector and not having taken part in the investigation of the case concerned to be the Assistant Public Prosecutor in charge of the case.

Page 3 of 4 [s 25] Assistant Public Prosecutors.— A distinction is to be borne in mind between appointment of a Public Prosecutor or Additional Public Prosecutor on the one hand, and Assistant Public Prosecutor, on the other. So far as Assistant Public Prosecutors are concerned, they are employees of the State. They hold civil posts. They are answerable for their conduct to higher statutory authority. Their appointment is governed by the service rules framed by the respective State Government [Samarendra Das, Advocate v State of WB, (2004) 2 SCC 274 ; State of UP v Johri Mal, (2004) 4 SCC 714) : AIR 2004 SC 3800 )]. The mode of appointment of Public Prosecutor (including Additional Public Prosecutor and Special Public Prosecutor) under section 24 of the Code and the mode of appointment of Assistant Public Prosecutor under section 25 of the Code significantly differ. There is a qualitative difference in the role and position of Public Prosecutor and Assistant Public Prosecutor. As a matter of law, Assistant Public Prosecutor is not included in the definition of “Public Prosecutor” under section 2(u) of the Code [Deepak Aggarwal v Keshav Kaushik, (2013) 5 SCC 277 : 2013 (1) Scale 564 ; State of UP v Johri Mal, (2004) 4 SCC 714 : AIR 2004 SC 3800 ; Sidhartha Vashisht v State, AIR 2010 SC 2352 : (2010) 6 SCC 1 ; Samarendra Das v State of WB, (2004) 2 SCC 274 : 2004 SCC (L&S) 402 ); Sunanda Bhimrao Chaware v High Court of Judicature, Bombay, 2012 (6) CTC 241 : 2013 (1) SCT1 (Bom)]. [s 25.5] Recommendation of Member of Legislative Assembly (MLA).— A person should not be appointed as Additional Government Pleader merely because he is recommended by an MLA. Proper procedure under the rules should be followed. [Sangram Keshari Pande v State of Orissa, 2000 Cr LJ 1625 (Ori) : (1999) 17 OCR 391 ]. [s 25.6] Section 25(1)—Qualification.— No qualifications having been laid down for appointment as Assistant Public Prosecutor, a Municipal employee can be so appointed even if he is not a law graduate [K Tirupathi v Govt. of AP, (1983) Cr LJ 1243 , para 9 : 1983 (1) Andh WR 194 : 1983 Mad LJ (Cri) 153 (AP)]. [s 25.7] Section 25(3)—Appointment.— Appointment under sub-section (3) is only for a particular case [Jaipal Pal Singh Naresh v State of UP, 1976 Cr LJ 32 (All); Baban v Samba Murthy, 1980 Cr LJ 248 (AP)]. Relying on the fundamental right of the accused to speedy trial the Kerala High Court has held that if the State Government does not appoint a Public Prosecutor the Chief Judicial Magistrate can do so for a particular case [PM Sunny v State of Kerala, 1986 Cr LJ 1517 , paras 19–20 : 1986 Ker LT 149 : 1986 (2) Rec CrLR 463 (KER— DB)]. As Assistant Public Prosecutor has not been included in the definition of “Public Prosecutor” [see section 2(u) and section 24] an express reference to Assistant Public Prosecutor has necessarily been made in sections 301, 302 (for appearance without written authority and without permission of Magistrate) and also in section 321 (for withdrawal of a case in charge of the Assistant Public Prosecutor concerned). Appointment by a Municipal Corporation by G.O. of its employee as Assistant Public Prosecutor to conduct prosecution in respect of offences under the Municipal Corporation Act being an administrative order cannot be challenged as illegal or invalid in a criminal Court. It can be only questioned by writ under Article 226. [Shankar Rao v Mohd. Mustafer, 1983 Cr LJ 30 : 1983 (1) APLJ (HC) 130 (AP)]. Appointment of law graduate employee of Municipal Corporation as Assistant Public Prosecutor to conduct cases within municipal limits is legal [K. Tirupathi v Government of AP, 1983 Cr LJ 1243 (AP) para 9 : 1983 (1) Andh WR 194 : 1983 Mad LJ (Cri) 153]. [s 25.8] Sub-section (2)—Appointment, Assistant Public Prosecutor.— An Assistant Public Prosecuting Officer appointed in 1956 by the I. G. of police, Hyderabad, would be deemed to have been appointed under section 484(2)(b) and so not being a “Police Officer” with the meaning of section 25(2) is eligible to be appointed or continued as Assistant Public Prosecutor [Baban v Sambamurthy, 1980 Cr LJ 248 (AP)]. [s 25.9] Separate Cadre for Assistant Public Prosecutor.— The State Government should constitute a separate cadre of Assistant Public Prosecutors either on a districtwise basis or on a State-wise basis, by creating a separate Prosecution Department for them and making the head to be appointed for such Department directly responsible to the State Government for their discipline and the conduct of all prosecutions by them before the Magistrates’ Courts and further free such Prosecutors fully

Page 4 of 4 [s 25] Assistant Public Prosecutors.— from the administrative and disciplinary control of the Police Department [SB Shahane v State of Maharashtra, AIR 1995 SC 1628 : 1995 SCC (Cri) 787 : 1995 Supp (3) SCC 37 ].

14

Inserted by the Code of Criminal Procedure (Amendment) Act, 1978 (45 of 1978), Section 9.

End of Document

[s 25-A Directorate of Prosecution.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER II CONSTITUTION OF CRIMINAL COURTS AND OFFICES

The Code of Criminal Procedure, 1973 CHAPTER II CONSTITUTION OF CRIMINAL COURTS AND OFFICES 15[s

25-A Directorate of Prosecution.— (1) The State Government may establish a Directorate of Prosecution consisting of a Director of Prosecution and as many Deputy Directors of Prosecution as it thinks fit. (2) A person shall be eligible to be appointed as a Director of Prosecution or a Deputy Director of Prosecution, only if he has been in practice as an advocate for not less than ten years and such appointment shall be made with the concurrence of the Chief Justice of the High Court. (3) The Head of the Directorate of Prosecution shall be the Director of Prosecution, who shall function under the administrative control of the Head of the Home Department in the State. (4) Every Deputy Director of Prosecution shall be subordinate to the Director of Prosecution. (5) Every Public Prosecutor, Additional Public Prosecutor and Special Public Prosecutor appointed by the State Government under sub-section (1), or as the case may be, sub-section (8), of section 24 to conduct cases in the High Court shall be subordinate to the Director of Prosecution. (6) Every Public Prosecutor, Additional Public Prosecutor and Special Public Prosecutor appointed by the State Government under sub-section (3), or as the case may be, sub-section (8), of section 24 to conduct cases in District Courts and every Assistant Public Prosecutor appointed under sub-section (1) of section 25 shall be subordinate to the Deputy Director of Prosecution. (7) The powers and functions of the Director of Prosecution and the Deputy Directors of Prosecution and the areas for which each of the Deputy Directors of Prosecution have been appointed shall be such as the State Government may, by notification, specify. (8) The provisions of this section shall not apply to the Advocate General for the State while performing the functions of a Public Prosecutor.] [s 25A.1] STATE AMENDMENTS IN SECTION 25A

Karnataka.—The following amendments were made by Karnataka Act 39 of 2012, section 2 (w.e.f. 24 October 2012).

Section 25A.—In its application to Karnataka in section 25A,—

(a) for sub-section (2), the following shall be substituted, namely:—

(2) The post of Director of prosecution and Government litigations, or a Deputy Director of Prosecution and other

Page 2 of 4 [s 25-A Directorate of Prosecution.— cadres shall be filed in accordance with the Cadre and Recruitment Rules framed under the Karnataka State Civil Services Act, 1978 (Karnataka Act 14 of 1990).

(b) for sub-section (5), the following shall be substituted, namely:—

(5) Every Public Prosecutor, Additional Public Prosecutor appointed by the State Government from the cadre of Prosecutors recruited under the recruitment rules framed by the Government under the Karnataka State Civil Services Act, 1978 shall be subordinate to the Director of prosecution and Government litigations and every Public Prosecutor, Additional Prosecutor and Special Prosecutor appointed under sub-section (8) of section 24 shall be subordinate to the Advocate General.

(c) In sub-section (6), for the words “Deputy Director of Prosecution” the words “Director of Prosecution” shall be substituted.

Madhya Pradesh.— The following amendments were made by Madhya Pradesh Act 18 of 2014, section 3, published in M.P. Rajpatra (Asadharan), dated 1 October 2014, pp 936(1-2).

For Section 25A of the principal Act, the following section shall be substituted, namely:—

“25A. Directorate of Prosecution.—(1) The State Government may establish a Directorate of Prosecution consisting of a Director of Prosecution and as many Additional Directors of Prosecution, Joint Directors of Prosecution, Deputy Directors of Prosecution and Assistant Directors of Prosecution and such other posts as it thinks fit.

(2) The post of Director of Prosecution, Additional Directors of Prosecution, Joint Directors of Prosecution, Deputy Directors of Prosecution and Assistant Directors of Prosecution and other post shall be filled in accordance with the Madhya Pradesh Public Prosecution (Gazetted) Service Recruitment Rules, 1991, as amended from time to time.

(3) The head of the Directorate of Prosecution shall be the Director of Prosecution, who shall function under the administrative control of the head of the Home Department in the State.

(4) Every Additional Director of Prosecution, Joint Director of Prosecution, Deputy Director of Prosecution and Assistant Director of Prosecution and other posts specified in sub-section (2) shall be subordinate to the Director of Prosecution.

(5) Every Public Prosecutor and Additional Public Prosecutor appointed under the Madhya Pradesh Public Prosecution (Gazetted) Service Recruitment Rules, 1991, shall be subordinate to the Director of Prosecution and every Public Prosecutor and Additional Public Prosecutor appointed under sub-section (1) of Section 24 and every Special Public Prosecutor appointed under sub-section (8) of Section 24 to conduct cases in the High Court shall be subordinate to the Advocate General.

(6) Every Public Prosecutor and Additional Public Prosecutor appointed under sub-section (3) of Section 24 and

Page 3 of 4 [s 25-A Directorate of Prosecution.— every Special Public Prosecutor appointed under sub-section (8) of Section 24 to conduct cases in District Courts shall be subordinate to the District Magistrate.

(7) The powers and functions of the Director of Prosecution shall be such as the State Government may, by notification, specify. COMMENTS [s 25A.2] Changes— CrPC (Amendment) Act, 2005 (25 of 2005) .— This section has been inserted by the Code of Criminal Procedure, 1973 Amendment Act, 2005. It empowers the State Government to establish the Directorate of Prosecution. The Director of the Prosecution shall function under the administrative control of the Head of the Home Department in the State.

This section has come into force w.e.f. 23 June 2006 vide Notification No. S.O. 923(E), dt. 21 June 2006.

The Law Commission in 1958 had recommended that a Director of Prosecutions be set up having its own cadre, though this recommendation was not included in the Code then. In 1996 the Law Commission in its 154th report again identified as Independent Prosecuting Agency as one of the several areas within the Code which required redesigning and restructuring. The Law Commission supported most of the proposed amendments to the Code as contained in the proposed Code of Criminal Procedure, 1973 Amendment Bill, 1994. Recommendations related to the structure of a Directorate of Prosecutions at the State level, to be adopted by a State Government in the event it decided to set up a cadre of prosecutors. The Law Commission further recommended that the structure of State level Directorates of Prosecution be given statutory status through an amendment to the Code. Despite the absence of such a requirement and inadequacy of the Provisions in the Code a number of states mainly, Delhi, Andhra Pradesh, Bihar, Goa, Himachal Pradesh, Karnataka, Kerala, Madhya Pradesh, Orissa, Tamil Nadu and Uttaranchal, had established a Directorate of Prosecution. By an amendment in 2006, section 25A was inserted in the Code, which categorically legislated for the creation of a Directorate of Prosecution in every state [National Human Rights Commission v State of Gujarat, 2009 (6) Scale 509 : (2009) 6 SCC 342 ]. [s 25A.3] Scope of section 25A.— This section empowers the State Government to establish the Directorate of Prosecution. The Director of the Prosecution shall function under the administrative control of the Head of the Home Department in the State.

This section has come into force w.e.f. 23 June 2006 vide Notification No. S.O. 923(E), dt. 21 June 2006.

Establishment of a Directorate is an execution function of the State. To man the office of such Directorate, naturally fixation of the qualification and other service conditions is entitled to be laid down by the State Government. Although section 25A of the Code of Criminal Procedure, 1973, provides that the essential qualification to hold the post of Director and Deputy Director should be not less than 10 years of practicing as an Advocate, the State Government is not precluded from laying down other necessary conditions for such appointment, having reasonable nexus to the post.

The Director General of Prosecution appointed under the executive orders issued under Article 162 of the Constitution of India does not automatically become the Director of Prosecution under section 25A of the Code of Criminal Procedure, 1973 and such appointment does not require the concurrence of the Chief Justice, specified under section 25A of the Code [Thankappan, EA v State of Kerala, 2011 (4) Ker LT 526 : 2012 CriLJ 1316 (Ker) (DB); P Jigesh and Madhavan Maniyara v State of Kerala and CK Sreedharan, 2013 (1) Ker LT 681 : 2013 Cr LJ 3250 (Ker)].

The Office of the Public Prosecutor is a very responsible office and he has an important role to play in the Criminal Justice Delivery System. The Public Prosecutors are to be independent, unbiased and impartial while conducting prosecution. There should be complete separation of Public Prosecutors, Additional Public Prosecutors, Special Public Prosecutors and Assistant Public Prosecutors from the control or supervision in any form by the Police, as otherwise, such control or supervision would only invade into the independence of the

Page 4 of 4 [s 25-A Directorate of Prosecution.— institution of Prosecutors, which would only bring harm to the Criminal Justice Delivery System and accordingly the appointment of a Police Officer as Director of Prosecution was held contrary to section 25A of the Code of Criminal Procedure, 1973 [S Thamizharasan v State of TN, 2010 (1) CTC 229 : 2009 (2) LW (Cri) 1429].

The qualification including the fixation of age has got reasonable nexus to the objects to be achieved by such appointment and the same is neither fanciful, arbitrary or irrational. Such fixation is the prerogative of the State authorities and in the absence of any legal infraction the same cannot be said to be illegal or arbitrary and violation of Articles 14 or 16 of the Constitution, as sought to be projected [Ranjit Debnath Sri v State of Tripura, 2008 Cr LJ 250 (252, 253) (Gau) : (2008) 5 Gau LR 586 : 2007 (4) Gau LT 438].

No eligible joint director was available for promotion to the post of Director, Prosecution. Therefore, in public interest an incumbent joint director was to be appointed. For non compliance of order passed by Court action for contempt of Court was merited but due to provisions contained in section 25A Contempt proceedings against respondent were dropped [Jiwan Lal Sharma v SS Parmar, 2007 Cr LJ (NOC) 793 : 2007 (1) Shim LC 58].

15 Inserted by the Code of Criminal Procedure (Amendment) Act, 2005 (25 of 2005), section 4 (w.e.f. 23 June 2006 vide Notification No. SO 923(E), dated 21 June 2006).

End of Document

[s 26] Courts by which offences are triable.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER III POWER OF COURTS

The Code of Criminal Procedure, 1973 CHAPTER III POWER OF COURTS [s 26] Courts by which offences are triable.— Subject to the other provisions of this Code— (a) any offence under the Indian Penal Code (45 of 1860) may be tried by— (i)

the High Court, or

(ii) the Court of Session, or (iii) any other Court by which such offence is shown in the First Schedule to be triable: 1[Provided

that any 2[offence under section 376, section 376A, section 376B, section 376C, section 376D or section 376E of the Indian Penal Code (45 of 1860)] shall be tried as far as practicable by a Court presided over by a woman.]

(b) any offence under any other law shall, when any Court is mentioned in this behalf in such law, be tried by such Court and when no Court is so mentioned, may be tried by— (i)

the High Court, or

(ii) any other Court by which such offence is shown in the First Schedule to be triable. [s 26.1] STATE AMENDMENT IN SECTION 26 Uttar Pradesh.—The following amendments were made by U.P. Act 1 of 1984, section 6 (w.e.f. 1 May 1984). Section 26.—In Section 26 for Clause (b) the following clause shall be substituted :—

(b) any offence under any other law may be tried— “(i) when any Court is mentioned in this behalf in such law, by such Court, or by any Court superior in rank to such Court, and (ii) when no Court is so mentioned, by any Court by which such offence is shown in the First Schedule to be triable, or by any Court superior in rank to such Court.

COMMENTS [s 26.2] Changes.— This section combines the provisions of old sections 28 and 29 and has been re-drafted, with the deletion of the illustration in old section 28 consequent upon abolition of the committal proceedings and with the substitution of

Page 2 of 4 [s 26] Courts by which offences are triable.— First Schedule for the Second Schedule as classification of offences has been made in the First Schedule in the new Code. Although ordinary original criminal jurisdiction of the High Courts, which was limited only to the three Presidency-towns of three High Courts at Bombay, Madras and Calcutta by the Letters Patent establishing those three High Courts has since been abolished (it was abolished in Bombay with the establishment of City Sessions Court in 1948, in Madras with establishment of City Sessions Court in 1956 and in Calcutta with the enactment of the WB City Sessions Courts Amendment Act 33 of 1959 which did away with the vestigial original criminal jurisdiction of the High Court at Calcutta), reference to the High Court in this revised section has not been omitted but has been retained because of the extremely rare but possible exercise of extraordinary original criminal jurisdiction vested in the High Court. [s 26.2.1] Code of Criminal Procedure (Amendment) Act, 2008 (5 of 2009).— This Amending Act has amended section 26 of the Code of Criminal Procedure, 1973 relating to Courts by which offences are triable. A proviso is inserted in clause (a) of the said section so as to provide that any offence under sections 376 and 376A to 376D of the Indian Penal Code, 1860 shall be tried as far as practicable by a Court presided over by a woman [see Notes on Clauses]. [s 26.2.2] Criminal Law (Amendment) Act, 2013 (13 of 2013) .— This proviso was further amended vide the Criminal Law (Amendment) Act, 2013. This Amending Act of 2013 provides that in the Code of Criminal Procedure, 1973 in section 26, in the proviso to clause (a), for the words, figures and letters “offence under section 376 and sections 376A to 376D of the Indian Penal Code”, the words, figures and letters “offence under section 376, section 376A, section 376B, section 376C, section 376D or section 376E of the Indian Penal Code” shall be substituted. [s 26.3] Scope and application of section 26.— This section states generally that subject to the other provisions of the Code (e.g. section 193 which requires a commitment) offences under the Penal Code are triable by the High Court or the Sessions Court or by any other Courts shown in the First Schedule. The provisions as to other Courts do not cut down the power of the High Court to try every offence under the Penal Code [Kharga, 8 A 665]. Thus, the sessions Court’s jurisdiction to try a case is not affected if it adds a charge of an offence exclusively by a Magistrate [Kharga, supra]. “Any other Court” in clause (a) (iii) means neither the High Court nor the Sessions Court but a Magisterial Court referred to in section 6 and not the Special Court in the Madhya Bharat Public Security Act [Sukharam, AIR 1957 MB 134 ]. As section 26 is subject to the other provisions of the Code, the section and First Schedule are controlled by the other provisions of the Code [Budhan Choudhary v State of Bihar, AIR 1955 SC 191 : 1955 (1) SCR 1045 ; see Prithwinath, AIR 1938 N 56; Danaji, AIR 1926 N 374]. The case against the petitioner charged for offence under section 212, Indian Penal Code, 1860 was committed by the Magistrate’s Court to be tried along with other accused. It was held that there was no bar in the case being tried by the Sessions Judge in view of section 26 read with section 193 of the Code. [Sujith v State of Kerala, 2008 Cr LJ 824 (835) (Ker) : 2007 (4) Ker LT 987 ]. When the accused persons themselves failed to draw attention of the trial Court about pendency of the counter case and did not prefer any application for holding trial of this case and counter case in the same Court, after disposal of the case, the accused cannot claim that they were seriously prejudiced [Ananta Deb Singha Mahapatra v State of WB, 2007 Cr LJ 1705 (Cal—DB) : 2006 (2) Cal Cri LR 672]. A special Court was constituted to deal with cases of Prevention of Corruption Act, 1988 and other cases not connected with this Act relating to National Rural Health Mission scam. The procedure of the Code of Criminal Procedure, 1973 is applicable to trial before special judge and there is no prejudice to trial that is taking place before Special Judge duly appointed to deal with non-Prevention of Corruption Act, 1988 cases when object of doing so was to try connected cases before same Court. Undoubtedly, while Special Judge alone could deal with cases under the Prevention of Corruption Act, 1988, non-Prevention of Corruption Act, 1988 cases could also be allowed to be tried by Special Judge under section 26 of the Code of Criminal Procedure, 1973. There is no legal bar to do so. [M/s HCL Infosystem Ltd v Central Bureau of Investigation, AIR 2016 SC 3705 : 2016 (7) Scale 674 ]. [s 26.4] No jurisdiction by consent.—

Page 3 of 4 [s 26] Courts by which offences are triable.— Jurisdiction is conferred by statute [Jhakar, 46 Cr LJ 339] and so consent of parties [Chandra, AIR 1942 O 50], or want of objection [Ram Udit, 33 Cr LJ 511], cannot give jurisdiction. [s 26.5] Offence triable by Magistrate—Sessions Courts jurisdiction.— Where the facts disclose an offence within the Magistrate’s jurisdiction, it is a complete fallacy to say that he is not competent to try offence because the same facts disclose a more serious offence beyond his jurisdiction [Ayyan, 24 M 675, 677; Mahajanam, AIR 1922 M 233; Gundya, 13 B 502; see Chellappa, AIR 1942 M 715]. If the facts show commission of a more serious offence triable by a higher Court, the Magistrate has no right to grab jurisdiction by trying the accused for the lesser offence. But, even, if the Magistrate does so, it is not illegal [Abdur Sattar, AIR 1928 M 585; Paul, AIR 1944 M 166]. Where a person is charged with some offences triable exclusively by the Magistrate and others triable exclusively by Court of session, entire case should be committed to Court of session [The State v Shyamal Kr. Dev., 1983 Cr LJ 40 : (1982) 86 Cal WN 702 : 1982 (1) Cal HN 265 (Cal)]. A case exclusively triable by a sessions Court cannot be tried by a Magistrate by leaving out the more serious charges [Ramlakhan, AIR 1941 P 287]. In such cases a Magistrate cannot be left to pick and choose, as it were, a particular section of the Penal Code for the purpose of trial [Shanmukhsing, AIR 1945 section 125; see Mansharam, AIR 1941 section 36]. The Magistrate is not certainly entitled to omit framing charge under the more serious offence in order to acquire jurisdiction [Ijjatulla, AIR 1945 C 44]. The Legislature having provided that serious or difficult cases should be tried by higher Courts, a Magistrate cannot evade it by usurping jurisdiction [Shambhooram, AIR 1935 Sind 221 ]; see Mansharam, supra]. The sessions Court has jurisdiction, once there is a legal committal. This does not mean that a Magistrate can send a petty offence for trial by sessions [Subedar, AIR 1946 A 365]. The mere statement of the commission of a serious offence not triable by a Magistrate does not render it illegal, if he tries the case and decides that the facts disclose a lesser offence. If the facts disclose an offence which he could not try, section 322 provides for it [Painda, 40 Cr LJ 515]. If a second class Magistrate during the trial of an offence triable by a first class Magistrate is invested with first class power, the trial is without jurisdiction [Sridhar, 25 P 260]. Where the question was whether the Appellant could be tried by the Judicial Magistrate, First Class, for the offences punishable under sections 408, 420, 467, 468 and 471 of the Indian Penal Code notwithstanding the fact that the First Schedule of the Code of Criminal Procedure, 1973 as amended by Code of Criminal Procedure, 1973 (Madhya Pradesh Amendment) Act of 2007, made offences punishable under sections 467, 468 and 471 of the Penal Code triable only by the Court of Sessions, the Supreme Court held that any law relating to forum of trial is procedural. The Appellant cannot claim a vested right of forum for his trial for no such right is recognized [Ramesh Kumar Soni v State of Madhya Pradesh, AIR 2013 SC 1896 : (2013) 14 SCC 696 : 2013 Cr LJ 1738 (SC) overruling Re: Amendment of First Schedule of Criminal Procedure Code, 2008 (3) MPLJ 311 (FB)]. A claimant has a “vested right of action” but not a “vested right of forum”. Unless by express words the new forum is available only to causes of action arising after the creation of the forum, the general rule is to make it retrospective [New India Insurance Co Ltd v Shanti Misra, 1975 KHC 637 : 1975 (2) SCC 840 : AIR 1976 SC 237 : 1977 (47) Comp Cas 453 : 1976 (2) SCR 266 ]. [s 26.6] Transfer petition.— Where on the same facts, one case was pending before Judge and the other before the Sessions Judge, Sessions Judge has the jurisdiction to try both the cases to avoid possibility of conflicting decisions in respect of the same incident [Vijay Kumar F Rathod v State of Maharashtra, 2007 Cr LJ 129 (Bom)]. [s 26.7] Clause (b).— The words “subject to the other provisions of this Code” are peremptory and there is no escape from them [State of UP v Sabir Ali, AIR 1964 SC 1673 : 1964 (2) Cr LJ 606 ]. Offences under any other law (i.e., other than the Penal Code) are triable by the Court mentioned in that law, eg, offence under UP Private Forests Act can only be tried by the Court in section 15(2) of it [State of UP v Sabir Ali, AIR 1964 SC 1673 : 1964 (2) Cr LJ 606 ]. Offence under the Opium Act [Schade, 19 A 565] or Child Marriage Restraint Act [The State of Gujarat v Fulsinh Bimsinh, AIR 1971 Guj 1 : 1971 Cr LJ 41 ] must be tried by a Magistrate and there can be no commitment to the sessions.

Page 4 of 4 [s 26] Courts by which offences are triable.—

Clause (b) provides which Court shall try the offence when no Court is mentioned in the other law. There is no conflict between section 26 and section 4. Where no Court is mentioned in any other law, the High Court is merely empowered to try offences under it. In view of the omission of the provision for cognizance of offences by the High Court (old section 194) consequent upon abolition of ordinary original criminal jurisdiction for trial of offences exercise of this power under extraordinary original criminal jurisdiction will be on extremely rare occasions, for instance, when a case is transferred to it under section 407(1)(c)(iv). Under section 26 read with the First Schedule any Magistrate can try an offence under any other law if punishable with imprisonment for less than three years or fine only, e.g. offence under section 14 WB Bargadar’s Act [Sasadhar, 61 Cal WN 522]. In view of section 26(2) and Schedule I Pt II, offence under Explosive Substances Act, 1908 is exclusively triable by sessions Court [Surja v State of Haryana, 1981 Cr LJ (NOC) 149 (P&H) : 1981 Chand Cr C 257]. Where the trial of a case under the Factories Act was conducted for the most part by a second-class magistrate who on realising that he did not have jurisdiction to try the case sent the case to the first-class magistrate and the latter without trying the case de novo delivered a judgment of conviction basing his finding and conclusion on the evidence and materials recorded by the second-class magistrate, it was held that the conviction and sentence passed and confirmed by the appellate Court could not be sustained [B.D. Jhuanihunwal v The State, 1977 (43) Cut LT 440 : 1977 Cr LJ 1390 : 1977 Cut LR (Cri) 103]. [s 26.8] Discretionary powers—How to be exercised.— The criminal jurisprudence of the country proceeds on the basis that a person is innocent and the burden rests on the prosecution to prove beyond all reasonable doubts as regards the guilt of the accused persons. It is with this background that the Code of Criminal Procedure, 1973 has conferred on to the hierarchy of the Courts specific powers to deal with the matter as it seems just and proper. The words “just and proper” used herein do not however, mean and imply an arbitrary exercise of power—powers are circumscribed and have to be exercised in accordance with the provisions of law and not de hors the same. Even discretionary powers shall have to be exercised in a manner and in consonance with the known principles of law and not otherwise [D Das v State of Haryana, 2003 SCC (Cri) 264 (269)].

1

Inserted by the Code of Criminal Procedure (Amendment) Act, 2008 (5 of 2009), Section 4 (w.e.f. 31 December 2009).

2

Substituted by the Criminal Law (Amendment) Act, 2013 (13 of 2013), Section 11, for the words “offence under Section 376 and Sections 376A to 376D of the Indian Penal Code” (w.e.f. 3 February 2013).

End of Document

[s 27] Jurisdiction in the case of juveniles.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER III POWER OF COURTS

The Code of Criminal Procedure, 1973 CHAPTER III POWER OF COURTS [s 27] Jurisdiction in the case of juveniles.— Any offence not punishable with death or imprisonment for life, committed by any person who at the date when he appears or is brought before the Court is under the age of sixteen years, may be tried by the Court of a Chief Judicial Magistrate, or by any Court specially empowered under the Children Act, 1960 (60 of 1960) or any other law for the time being in force providing for the treatment, training and rehabilitation of youthful offenders. [s 27.1] Changes.— This section corresponds to old section 29B redrafted. The material changes are : (i) the age has been raised; (ii) offence may be tried by (a) Court of the Chief Judicial Magistrate; or (b) Court especially empowered under the Children Act 1960; or (c) Court especially empowered under any other law providing for trial of youthful offenders. The expression “treatment, training and rehabilitation” has been substituted for “custody, trial or punishment”, since in relation to the children it has been considered inappropriate to use the term “punishment”. The Children Act, 1960 applies to Union Territories. [s 27.2] Scope and application of section 27.— The Juvenile Justice Act, 1986 has been replaced by the Juvenile Justice (Care and Protection of Children) Act, 2000. Section 27, has been held to be not inconsistent with section 6 of the Act of 2000 [State of Karnataka v Harshad, 2005 Cr LJ 2357 (Kant) : 2005 (2) Kant LJ 481 : 2005 (3) East CrC 436 : 2005 AIR Kant HCR 1123].

Section 7A of the Juvenile Justice (Care and Protection of Children) Act, 2000 which was added by Act 33 of 2006 lays down the procedure to be followed when claim of juvenilty is raised before any Court.

“Age determination inquiry” contemplated under section 7A of the Juvenile Justice (Care and Protection of Children) Act, 2000 read with rule 12 of the Juvenile Justice Rules, 2007 enables the Court to seek evidence and in that process, the Court can obtain the matriculation or equivalent certificates, if available. Only in the absence of any matriculation or equivalent certificates, the Court needs to obtain the date of birth certificate from the school first attended other than a play school. Only in the absence of matriculation or equivalent certificate or the date of birth certificate from the school first attended, the Court need obtain the birth certificate given by a corporation or a municipal authority or a panchayat (not an affidavit but certificates or documents). The question of obtaining medical opinion from a duly constituted Medical Board arises only if the above mentioned documents are unavailable. In case exact assessment of the age cannot be done, then the Court, for reasons to be recorded, may, if considered necessary, give the benefit to the child or juvenile by considering his or her age on lower side within the margin of one year [Ashwani Kumar Saxena v State of MP, AIR 2013 SC 553 : (2012) 9 SCC 750 ; Jodhbir Singh v State of Punjab, AIR 2013 SC 1 : 2012 (11) Scale 595 ].

While the Courts must be sensitive in dealing with the juvenile who is involved in cases of serious nature like

Page 2 of 3 [s 27] Jurisdiction in the case of juveniles.— sexual molestation, rape, gang rape, murder and host of other offences, the accused cannot be allowed to abuse the statutory protection by attempting to prove himself a minor when the documentary evidence to prove his minority gives rise to a reasonable doubt about his assertion of minority. Under such circumstance, the medical evidence based on scientific investigation will have to be given due weight and precedence over the evidence based on school administration records which give rise to hypothesis and speculation about the age of the accused. The matter, however, would stand on a different footing if the academic certificates and school records are alleged to have been withheld deliberately with ulterior motive and authenticity of the medical evidence is under challenge by the prosecution [Om Prakash v State of Rajasthan, AIR 2012 SC 1608 : (2012) 5 SCC 201 ].

The punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated. Any liberal attitude by imposing meagre sentences or taking too sympathetic view merely on account of lapse of time in respect of such offences will be result-wise counter-productive in the long run and against societal interest which needs to be cared for and strengthening by string of deterrence imbust in the sentencing system [State of UP v Kishan, AIR 2005 SC 1250 : 2005 Cr LJ 333 ]. [s 27.3] Belated plea.— Dealing with the contention of juvenility, the Supreme Court has held that the claim of juvenility could be raised at any stage, even after final disposal of the case. If the plea of juvenility was not raised before the trial Court or the High Court and is raised for the first time before the Supreme Court, the judicial conscience of the Court must be satisfied by placing adequate and satisfactory material that the accused had not attained the age of eighteen years on the date of commission of offence; sans such material any further enquiry into juvenility would be unnecessary [Pawan v State of Uttaranchal, (2009) 15 SCC 259 : 2009 Cr LJ 2257 (SC); Abuzar Hossain v State of WB, AIR 2013 SC 1020 : (2012) 10 SCC 489 ].

In Abuzar Hossain’s case the Supreme Court after discussing all relevant cases on point summarized the law as follows:

(i)

A claim of juvenility may be raised at any stage even after final disposal of the case. It may be raised for the first time before this Court as well after final disposal of the case. The delay in raising the claim of juvenility cannot be a ground for rejection of such claim. The claim of juvenility can be raised in appeal even if not pressed before the trial Court and can be raised for the first time before this Court though not pressed before the trial Court and in appeal Court.

(ii) For making a claim with regard to juvenility after conviction, the claimant must produce some material which may prima facie satisfy the Court that an inquiry into the claim of juvenility is necessary. Initial burden has to be discharged by the person who claims juvenility. (iii) As to what materials would prima facie satisfy the Court and/or are sufficient for discharging the initial burden cannot be catalogued nor can it be laid down as to what weight should be given to a specific piece of evidence which may be sufficient to raise presumption of juvenility but the documents referred to in rules 12(3)(a)(i) to (iii) of the Juvenile Justice (Care and Protection of Children) Rules, 2007 shall definitely be sufficient for prima facie satisfaction of the Court about the age of the delinquent necessitating further enquiry under rule 12. The statement recorded under section 313 of the Code is too tentative and may not by itself be sufficient ordinarily to justify or reject the claim of juvenility. The credibility and/or acceptability of the documents like the school leaving certificate or the voters’ list, etc. obtained after conviction would depend on the facts and circumstances of each case and no hard and fast rule can be prescribed that they must be prima facie accepted or rejected. (iv) An affidavit of the claimant or any of the parents or a sibling or a relative in support of the claim of juvenility raised for the first time in appeal or revision or before this Court during the pendency of the matter or after disposal of the case shall not be sufficient justifying an enquiry to determine the age of such person unless the circumstances of the case are so glaring that satisfy the judicial conscience of the Court to order an enquiry into determination of age of the delinquent.

Page 3 of 3 [s 27] Jurisdiction in the case of juveniles.— (v) The Court where the plea of juvenility is raised for the first time should always be guided by the objectives of the 2000 Act and be alive to the position that the beneficent and salutary provisions contained in the 2000 Act are not defeated by hyper-technical approach and the persons who are entitled to get benefits of the 2000 Act get such benefits. The matter should be considered prima facie on the touchstone of preponderance of probability. (vi) Claim of juvenility lacking in credibility or frivolous claim of juvenility or patently absurd or inherently improbable claim of juvenility must be rejected by the Court at threshold whenever raised [Abuzar Hossain v State of WB, AIR 2013 SC 1020 : (2012) 10 SCC 489 ; Pawan v State of Uttaranchal, (2009) 15 SCC 259 : 2009 Cr LJ 2257 (SC); Hari Ram v State of Rajasthan, (2009) 13 SCC 211 : 2009 (6) Scale 695 ; Akbar Sheikh v State of WB, (2009) 7 SCC 415 : 2009 AIR SCW 3743]. End of Document

[s 28] Sentences which High Courts and Sessions Judges may pass.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER III POWER OF COURTS

The Code of Criminal Procedure, 1973 CHAPTER III POWER OF COURTS [s 28] Sentences which High Courts and Sessions Judges may pass.— (1) A High Court may pass any sentence authorised by law. (2) A Sessions Judge or Additional Sessions Judge may pass any sentence authorised by law; but any sentence of death passed by any such Judge shall be subject to confirmation by the High Court. (3) An Assistant Sessions Judge may pass any sentence authorised by law except a sentence of death or of imprisonment for life or of imprisonment for a term exceeding ten years. [s 28.1] Changes.— Section 28 corresponds to old section 31 without any change. [s 28.2] Scope and application of section 28.— The principle of “just punishment” is the bedrock of sentencing in respect of a criminal offence. The wide discretion that is vested in the Courts in matters of sentencing must be exercised on rational parameters in the light of the totality of the facts of any given case. The doctrine of proportionality has to be invoked in the context of the facts in which the crime had been committed, the antecedents of the accused, the age of the accused and such other relevant factors [Pritam Chauhan v State, AIR 2014 SC 2553 : (2014) 9 SCC 637 ; Gopal Singh v State of Uttarakhand, (2013) 7 SCC 545 : AIR 2013 SC 3048 ].

Law should adopt corrective machinery or deterrence based on factual matrix in matters of adopting a sentencing system. By deft modulation sentencing system should be stern and it should be tempered with mercy only wherever necessary. Undue sympathy to impose inadequate sentence would do more harm to justice system [State of Karnataka v Raju, 2007 Cr LJ 4700 (SC) : AIR 2007 SC 3225 : (2007) 8 SCC 635 : (2008) 1 SCC (Cri) 787 ].

The High Court can pass any sentence provided by law. So also can a Sessions Judge or Additional Sessions Judge. But any death sentence passed by the Sessions Judge or Additional Sessions Judge is subject to confirmation by the High Court. An Assistant Sessions Judge can pass any sentence, short of a sentence of death, imprisonment for life or imprisonment exceeding ten years. Where this falls just short of the rarest of the rare cases, the Court may sentence the accused to imprisonment for the rest of his life or of a term exceeding 14 years [Swamy Shraddananda v State of Karnataka, 2008 AIR SCW 5110 (5136) : AIR 2008 SC 3040 : 2008 Cr LJ 3911 : 2008 (3) Crimes 215 ; see also Sangeet v State of Haryana, AIR 2013 SC 447 : 2012 (11) Scale 140 : (2013) 2 SCC 452 (A prisoner serving a life sentence has no indefeasible right to release on completion of either fourteen years or twenty years imprisonment)]. [s 28.3] Appeal.— Where appellant is convicted under section 307, Indian Penal Code, 1860 and sentenced to imprisonment for a

Page 2 of 3 [s 28] Sentences which High Courts and Sessions Judges may pass.— term of five years R.I., appeal would lie to the Sessions Judge and not to the High Court Chunna v State of UP, (1990) Cr LJ 1057 (All) (S.I. Jafri, J.)].

Appellate Court can pass only a sentence that could have been imposed by the trial Court. It cannot impose a sentence which it (the appellate Court) could have imposed as a trial Court [Jagat v State of MP, (1986) 2 SCR 322 ]. [s 28.4] Capital sentence.— If there is undue, unexplained and inordinate delay in execution of death sentence, the Supreme Court is well within its powers under Article 32 to hear the grievance of the convict and commute the death sentence into life imprisonment on this ground alone after satisfying that the delay was not caused at the instance of the accused himself [Shatrughan Chauhan v UOI, 2014 Cr LJ 1327 (SC) : (2014) 3 SCC 1 (Supreme Court laid down detailed guidelines for safeguarding the interest of the death row convicts); V. Sridharan v UOI, AIR 2014 SC 1368 : (2014) 4 SCC 242 : 2014 Cr LJ 1681 (SC)].

It is neither possible nor permissible to define or lay down any straight-jacket formula, which can universally be applied to all cases requiring Court’s determination in relation to imposition of death penalty. The Court, however, should, inter alia, consider the following points: first of all, the Court has to keep in mind that the prosecution has been able to prove its case beyond reasonable doubt and the accused is guilty of the offence where prescribed punishment is that of death. Secondly, the Court has to examine the cumulative effect of the prosecution evidence and the stand of the accused. This would include discussion on the manner in which the crime was committed, the intent and motive of the accused, situation and mental condition of the accused at the relevant time, attendant circumstances relating to the commission of offence and the possibility of the accused being reformed if permitted to join the mainstream society. Consideration of these aspects should automatically result in recording of special reasons where the Court is of the opinion that penalty of death should be imposed which is in line with the provisions of section 354(3), which places a mandate upon the Court to apply its judicious mind and record “special reasons” for imposing death penalty [Sainath Kailash Abhang v State of Maharashtra, (2013) 2 SCC 479 : 2013 Cr LJ 651 (SC); State of Rajasthan v Balveer, AIR 2014 SC 1117 : 2014 Cr LJ 314 ; V. Sridharan v UOI, AIR 2014 SC 1368 : (2014) 4 SCC 242 ; Ashok Debbarama v State of Tripura, 2014 Cr LJ 1830 (SC)].

While determining the questions relatable to sentencing policy, the Court has to follow certain principles and these principles are the loadstar in imposition or otherwise of the death sentence:

(1) The Court has to apply the test to determine, if it was the “rarest of rare” case for imposition of a death sentence. (2) In the opinion of the Court, imposition of any other punishment, i.e., life imprisonment would be completely inadequate and would not meet the ends of justice. (3) Life imprisonment is the rule and death sentence is an exception. (4) The option to impose sentence of imprisonment for life cannot be cautiously exercised having regard to the nature and circumstances of the crime and all relevant considerations. (5) The method (planned or otherwise) and the manner (extent of brutality and inhumanity, etc.) in which the crime was committed and the circumstances leading to commission of such heinous crime. According to the Supreme Court these are the accepted indicators for the exercise of judicial discretion but it is always preferred not to fetter the judicial discretion by attempting to make the excessive enumeration, in one way or another [Ram Naresh v State of Chhattisgarh, AIR 2012 SC 1357 : (2012) 4 SCC 257 : (2012) Cr LJ 1898 (SC)].

Page 3 of 3 [s 28] Sentences which High Courts and Sessions Judges may pass.— Session Judges have no power to impose the harsher variety of life sentence which is recognised by Swamy Shraddananda (2) v State of Karnataka, 2008 (13) SCC 767 : AIR 2008 SC 3040 : 2008 Cr LJ 3911 as an option available in law for the Courts to avoid the harshest, irreversible and incorrectable sentence of death [Unni v State, 2013 Cr LJ 2819 ]. [s 28.5] Fixed Term Sentence.— In a murder case it was held by the Apex Court that Court can impose fixed term sentence. The power to grant remission is an executive power and it cannot affect appeal or revisional power of Court. Therefore, the imposition of term sentence on accused under section 302 of the Indian Penal Code, 1860, instead of maximum death sentence was held to be proper. [Vikas Yadav v State of UP, AIR 2016 SC 4614 : 2016 (9) SCJ 556 ]. [s 28.6] Consideration—Long pendency of case.— Taking note of the purpose for which a sentence is imposed, it cannot be laid down as a rule of universal application that long passage of time in all cases would justify minimal sentence. Long pendency of a matter by itself could not justify lesser sentence [State of MP v Ghanshyam Singh, AIR 2003 SC 3191 : 2003 Cr LJ 4339 : (2003) 8 SCC 13 : 2003 (4) Crimes 6 (SC)].

Long delay before the Courts in taking a final decision with regard to the guilt or otherwise of the accused is one of the mitigating factors for the superior Courts to take into consideration while taking a decision on the quantum of sentence [V.K. Verma v CBI, (2014) 3 SCC 485 : 2014 Cr LJ 1573 (SC)]. End of Document

[s 29] Sentences which Magistrates may pass.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER III POWER OF COURTS

The Code of Criminal Procedure, 1973 CHAPTER III POWER OF COURTS [s 29] Sentences which Magistrates may pass.— (1) The Court of a Chief Judicial Magistrate may pass any sentence authorised by law except a sentence of death or of imprisonment for life or of imprisonment for a term exceeding seven years. (2) The Court of a Magistrate of the first class may pass a sentence of imprisonment for a term not exceeding three years, or of fine not exceeding 3[ten thousand rupees], or of both. (3) The Court of a Magistrate of the second class may pass a sentence of imprisonment for a term not exceeding one year, or of fine not exceeding 4[five thousand rupees], or of both. (4) The Court of a Chief Metropolitan Magistrate shall have the powers of the Court of a Chief Judicial Magistrate and that of a Metropolitan Magistrate, the powers of the Court of a Magistrate of the first class. [s 29.1] STATE AMENDMENTS IN SECTION 29 Maharashtra.—The following amendments were made by Maharashtra Act 27 of 2007 (w.e.f. 1 December 2007).

Section 29-A.—In its application to the State of Maharashtra, in Section 29—

(a) in sub-section (2) for the words “ten thousand rupees” the words “fifty thousand rupees” shall be substituted. (b) in sub-section (2) for the words “five thousand rupees” the words “ten thousand rupees” shall be substituted.

Punjab.—The following amendments were made by Punjab Amendment Act, 1983 (22 of 1983) vide President’s Act No. 1 of 1984.

Section 29-A.—In its application to the State of Punjab in relation to the “specified offences” as defined in section 2(b) of Code of Criminal Procedure after section 29, section 29A inserted as under:—

Page 2 of 11 [s 29] Sentences which Magistrates may pass.—

29A. Sentences which Executive Magistrate may pass.—An Executive Magistrate may pass a sentence of imprisonment for a term not exceeding three years or of fine not exceeding five thousand rupees, or of both.

Union Territory of Chandigarh.—In its application to the Union Territory of Chandigarh, in relation to the “specified offences” under section 2(b) of the Code of Criminal Procedure (Punjab Amendment) Act, 1983 (Punj. Act 22 of 1983), the provisions of the Code to apply to that territory subject to modifications undermentioned. These modifications to remain in force for one year w.e.f. 27 July 1984.

Section 29A.—After section 29, insert as under—

29A. Sentences which Executive Magistrates may give.—An Executive Magistrate may pass a sentence of imprisonment for a term not exceeding three years or of fine not exceeding five thousand rupees, or of both.

COMMENTS [s 29.2] Changes.— Sub-section (1) is new. Cf old section 34; sub-sections (2) and (3) correspond to old section 32 (1) with modifications. Sub-section (4) is new. An upwards revision of the sentencing powers of the Judicial Magistrates has been made. The Chief Judicial Magistrate has been given power to award sentence of imprisonment for a term which may extend to 7 years and fine without limit. He has been more or less thus equated to the Special Magistrates who could be appointed under old section 30 which has been done away with together with the old section 34 consequentially, as no longer required or necessary. For, the First Schedule to the new Code has been so revised by enlarging the number of offences triable by the first class Magistrates and reducing pro tanto the number of offences exclusively triable by a Court of session that, broadly speaking, offences punishable with imprisonment for 7 years or less are within the jurisdiction of the Magistrates of the first class, and a Chief Judicial Magistrate being himself, a Magistrate of the first class is necessarily competent to try such offence. These enhanced powers of the Chief Judicial Magistrate will give relief to the Court of Session. A Magistrate of the first class has been given power to award sentence of imprisonment for a term which may extend to 3 years (as against 2 years Code) and a fine of Rs. 10,000/- (as against Rs. 2,000/- in the old Code) and a Magistrate of the second class has been given power to award sentence of imprisonment for a term which may extend to one year (as against 6 months in the old Code) and a fine of Rs. 5,000/- (as against Rs. 500). In metropolitan areas the Chief Metropolitan Magistrate will have the same powers as the Chief Judicial Magistrate has in a district; while other Metropolitan Magistrates will have the same powers of a Magistrate of the first class. Magistrates of third class have been abolished. A Magistrate will derive powers directly on his appointment and there will be no need to confer additional powers by notification as at present. [s 29.2.1] CrPC (Amendment) Act, 2005 (25 of 2005). — In section 29 of the principal Act,

(a) in sub-section (2), for the words “five thousand rupees”, the words “ten thousand rupees” shall be substituted; (b) in sub-section (3) for the words “one thousand rupees”, the words “five thousand rupees” shall be substituted.

Notes on Clauses

This clause seeks to amend Section 29 of the Code to enhance the sentencing power of the Magistrate of the First

Page 3 of 11 [s 29] Sentences which Magistrates may pass.— Class to impose fine from five thousand rupees upto ten thousand rupees and Magistrate of the Second Class from one thousand rupees upto five thousand rupees. This is being proposed keeping in view the depreciation of the value of the rupee since 1973 and to make the provision more deterrent. (Notes on Clauses, Clauses 5)

This amendment in the section has come into force w.e.f. 23 June 2006 vide Notification No. S.O. 923(E), dt. 21 June 2006. [s 29.3] General principles about sentence.— Sections 28 and 29 define the limits of the sentences which Courts of different denominations may legally pass. The maximum sentences provided for an offence is quite another thing. The question of sentence is always a difficult and in many cases a delicate matter for the Court. The theory of punishment is based upon: (a) the protection of the public; (b) the prevention of crime (i.e., to prevent a particular person from repeating the act or omission and to prevent other person from committing it) and (c) the reformation of the offender; and (d) corporal suffering for the crime committed. The determination of what should be the proper sentence depends on the particular facts of each case and no two cases are exactly similar. The maximum penalty is intended for the worst case and the Court is left with the discretion to determine judicially bearing in mind the facts and circumstances of the particular case, the extent to which the punishment should approach to or recede from the maximum limit. [s 29.4] Fine under Negotiable Instruments Act, section 138.— The bar put on the Magistrate under section 29, Code of Criminal Procedure, 1973 is not applicable upon the High Court. The High Court may impose a fine which may extend to twice the amount of the cheque. The award of imprisonment for only one day, though not sufficient, was not interfered with because of the special circumstances of the case. The career of the accused as cine artist would have been spoiled affecting also the production of the fitness in which she was working : in view of these considerations, the High Court enhanced the fine to twice the amount of the cheque [Y. Sreelatha v Mukanchand Bohra, 2003 Cr LJ 1938 : 2002 (2) Crimes 19 : 2002 Mad LJ (Cri) 248 : 2002 (1) Mad LW (Cri) 271 : 2002 (2) Bank Cas 263 (Mad)].

Section 143 of the Negotiable Instruments Act was inserted by the Negotiable Instruments (Amendment and Miscellaneous Provisions) Act, 2002 with effect from 6 February 2003. In view of conferring of the special jurisdiction or powers on the Magistrate of First Class in the matter of awarding sentences by inserting section 143 of Negotiable Instruments Act, the limitation stipulated in section 29(2) of Code of Criminal Procedure, 1973 is obviated. Thus, it is clear that even the Magistrate of First Class may impose fine exceeding Rs. 5,000 (now Rs 10,000) for the offence punishable under section 138 of Negotiable Instruments Act, after the aforesaid amendment [Shaila P. Prabhu v Nagendra K. Mallya, 2006 Cr LJ 1554 (Kar) : 2006 (3) KarLJ 649 ].

By virtue of the aforesaid provisions, if special or local law authorises the Magistrate of First Class to exercise special jurisdiction or power conferred under the said law, then section 29 gets ousted and in such an event, the Magistrate of First Class shall be entitled to exercise the jurisdiction and the powers enjoined under the provisions of such special or local law. There are such provisions in certain special enactments, wherein the Metropolitan Magistrate or Judicial Magistrate of First Class has been specifically empowered by the Legislature to pass a sentence of fine exceeding the limits prescribe under section 29(2) of Code of Criminal Procedure, 1973 [Second Additional Judicial First-Class Magistrate, Bhimavaram v State of AP, 2005 Cr LJ 1168 (AP)].

Under section 138 Negotiable Instruments Act, the Court may impose fine of twice the amount of the cheque. This is, however, subject to the maximum limit of powers of the Magistrate or Judge which he can impose. Where a Magistrate imposes a fine of Rs. 1,35,000, it would be abuse of process of the Court [Brajesh Kumar Sharma v Ramprakash Kulshresht, 2008 Cr LJ (NOC) 187 (MP) : 2007 (2) MPLJ 605 : 2007 (54) All Ind Cas 795]. [s 29.5] Drugs Act.— In a case under section 27(1)(b) read with section 8(a) of the Drugs and Cosmetics Act, 1940, the maximum punishment is imprisonment for life. The offence is triable exclusively by the Court of Session. The Additional

Page 4 of 11 [s 29] Sentences which Magistrates may pass.— Chief Judicial Magistrate should not try such an offence. [Prem Pal Varshney v UOI, (1990) Cr LJ 989 : 1990 FAJ 116 (All) (BL Yadav, J.)].

The social impact of the crime, for example, where it relates to offences relating to narcotic drugs or psychotropic substances which have great impact not only on the heath fabric but also on the social order and public interest, cannot be lost sight of and per se requires exemplary treatment [UOI v Kuldeep Singh, 2004 SCC (Cri) 597 (604) : AIR 2004 SC 827 : 2004 Cr LJ 836 : 2004 (1) Crimes 204 ]. [s 29.6] Scope of section 29.— Section 29 is not concerned with the jurisdiction to try offences [Ravindra Prakash Arya (Dr.) v UOI, (1984) Cr LJ 1321 : 1984 (2) FAC 112 : 1984 All WC 594 (All)].

The Magistrate has no jurisdiction to inflict sentence of more than nine months in case of an offence punishable under section 326, Indian Penal Code, 1860 [Kuna Maharana v State, 1996 Cr LJ 170 (Ori)].

If a Magistrate of first class thinks that the fact situation in a particular case warrants imposition of a sentence more severe than the limit fixed under section 29 of the Code, resort may be had to section 325(1) of the Code and the accused may be forwarded to the Chief Judicial Magistrate [Pankajbhai v State, AIR 2001 SC 567 : 2001 Cr LJ 950 (SC) : (2001) 2 SCC 595 : 2001 (1) Crimes 165 ]. [s 29.7] Precedents in sentencing.— Precedents can be no useful guide unless they lay down any principle of universal application. Moreover, different judges have different conceptions and glaring diversity and variety of sentences in respect of the same offence committed under similar circumstances are not infrequently to be found, Lord Brampton whose fame both as a barrister and as a Judge stood very high, said:

The sentence of another Judge upon another prisoner ought not to be followed, for each prisoner can be punished for nothing but the particular crime which he has committed. For this reason the case of each individual should be considered by itself.

No hard and fast rule can be laid down, it being a matter of discretion to be guided by a variety of consideration; but the Court must always bear in mind the necessity of proportion between an offence and the penalty [Adamji Umar Dalal v State of Bombay, 1952 SCR 172 : AIR 1952 SC 14 : 1953 Cr LJ 542 ]. The Courts discretion to pass adequate sentence must be exercised judicially, i.e., according to well-established principles of reason and justice. The principles formulated in some cases are given below as a guide.

Undue sympathy to impose inadequate sentence would do more harm to the justice system and undermine the public confidence in the efficacy of law. It is the duty of every Court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed. The sentencing Courts are expected to consider all relevant facts and circumstances bearing on the question of sentence and proceed to impose a sentence commensurate with the gravity of the offence. The Court must not only keep in view the rights of the victim of the crime but also the society at large while considering the imposition of appropriate punishment. Meagre sentence imposed solely on account of lapse of time without considering the degree of the offence will be counter-productive in the long run and against the interest of the society [State of MP v Bablu, AIR 2015 SC 102 : (2014) 9 SCC 281 ].

Factors to be considered.—(a) Motive or previous enmity; (b) Whether the incident had taken place on the spur of the moment; (c) The intention/knowledge of the accused while inflicting the blow or injury; (d) Whether the death ensued instantaneously or the victim died after several days; (e) The gravity, dimension and nature of injury; (f) The age and general health condition of the accused; (g) Whether the injury was caused without pre-

Page 5 of 11 [s 29] Sentences which Magistrates may pass.— meditation in a sudden fight; (h) The nature and size of weapon used for inflicting the injury and the force with which the blow was inflicted; (i) The criminal background and adverse history of the accused; (j) Whether the injury inflicted was not sufficient in the ordinary course of nature to cause death but the death was because of shock; (k) Number of other criminal cases pending against the accused; (l) Incident occurred within the family members or close relations and (m) The conduct and behaviour of the accused after the incident. Whether the accused had taken the injured/the deceased to the hospital immediately to ensure that he/she gets proper medical treatment? These are some of the factors, which can be taken into consideration while granting an appropriate sentence to the accused.

The list of circumstances enumerated above is only illustrative and not exhaustive. In our considered view, proper and appropriate sentence to the accused is the bounded obligation and duty of the Court. The endeavour of the Court must be to ensure that the accused receives appropriate sentence, in other words, sentence should be according to the gravity of the offence. These are some of the relevant factors which are required to be kept in view while convicting and sentencing the accused [Gurmukh Singh v State of Haryana, JT 2009 (11) SC 122 : 2009 (11) Scale 688 ].

In fixing punishment various factors have to be considered; the nature of the offence, the circumstances in which it was committed, the degree of deliberation shown by the offender, the provocation received, if it is a violent crime, the antecedents of the offender, and his age and character. All these must be established by evidence and the Court could not act on impressions created by the accused on the spur of the moment [Usman, AIR 1947 Bom 409 ; see Adamji Umar Dalal v State of Bombay, AIR 1952 SC 14 : 1953 Cr LJ 542 : 1952 SCR 172 ; Baksho, 31 Cr LJ 1046]. In judging the adequacy of a sentence, the nature of the offence, the circumstances of its commission, the age and character of the offender, injury to individuals or to society, effect of the punishment on the offender, are some amongst many other factors that have to be taken into consideration [Ramashraya Chakravarti v State of Madhya Pradesh, AIR 1976 SC 392 : 1976 Cr LJ 334 : (1976) 1 SCC 281 ]. In awarding sentence need for rehabilitation and deterrence is to be kept in view [Nadella Venkata Krishna Rao v State of A.P, AIR 1978 SC 480 : 1978 Cr LJ 641 : (1978) 1 SCC 208 ; Ashok kumar v State (Delhi Administration), AIR 1980 SC 636 : 1980 Cr LJ 444 : (1980) 2 SCC 282 ]. Correctional strategy of punishment was explained by the Supreme Court in Md. Giasuddin v State of AP, AIR 1977 SC 1926 1977 Cr LJ 1557 : (1977) 3 SCC 287 but the Court has warned that coddling is not correctional. While jatrogenic prison terms dehumanise, it is functional failure and judicial pathology to hold out a beingly self-defeating nonsentence to deviants endangering the morals and morale, the health and wealth of society [Madhav Hayawadan Rao Hoskot v State of Maharashtra, AIR 1978 SC 1548 : 1978 Cr LJ 1678 : (1978) 3 SCC 544 ]. As to the object of punishment and the principle to be observed in determining the quantum of punishment see [Halsbury: Criminal Law, 4th Edn].

The factors to be kept in view in fixing the punishment were discussed at some length in this case and the principles summarised. It was observed that instead of unduly severe punishment of 18 months labour under the UP Prevention of Cow Slaughter At for killing a cow, a fine of Rs. 50 would have been sufficient on conviction [Dulla, AIR 1958 All 198 (cases collected); Ayub, AIR 1962 All 141 ]. An unnecessarily severe or vindictive sentence is apt to defeat the object for which it is passed [Jai Narain, 22 P 600 : 45 Cr LJ 332]. Sentence in each case should be proportionate to the nature and gravity of the offence [Maiku, AIR 1930 All 279 ; Jai Narain, supra; Adamji, supra] and according to the circumstances of each case [Kher, AIR 1929 Lah 29 ].

The question of sentence is always difficult and complex. The guilty persons may be hardened or professional criminals or may have taken to crime not for many days or may have committed the crime under the influence of bad company or again commission of a solitary offence may be due to provocative wrongful action seriously injuring the feelings and sentiments of the accused. Keeping in view the broad object of punishment in all progressive civilized societies true dictates of justice demand that all the attending relevant circumstances should be taken into account for determining the proper and just sentence. The sentence should bring home to the guilty party the consciousness that the offence was against his own interest as also against the interests of the society. In considering the adequacy of the sentence which should neither be too severe nor too lenient the Court has to keep in mind the motive and magnitude of the offence, the circumstances in which it was committed and the age and character (including his antecedents) and station in life of the offender [Modi Ram v State of Madhya Pradesh, AIR 1972 SC 2438 : 1972 Cr LJ 1521 : (1972) 2 SCC 630 ]. Modern criminology

Page 6 of 11 [s 29] Sentences which Magistrates may pass.— does not encourage the imposition of severe or savage sentences because the deterrent or punitive aspect of punishment is no longer treated as a valid consideration in the administration of criminal law. But it must be remembered that ordinary offences are committed by persons either under the pressure of provoked and unbalanced emotions, or as a result of adverse environments and circumstances, and so, while dealing with these criminals who, in many cases, deserve a sympathetic treatment and in a few cases, are more sinned against than sinners, criminal law treats punishment more as a reformative or corrective than as a deterrent or punitive measure [Indo China Steam Navigation Co, AIR 1964 SC 1140 , 1153 : 1964 (2) Cr LJ 324 ]. Punishment to be proper, fair, effective and purposeful, must fit not only the crime but also the criminal [Gopi Gopishanker v State of Rajasthan, AIR 1967 Raj 159 : 1967 Cr LJ 922 : 1967 Raj LW 326 ]. See also now sections 235(2) and 248(2).

Previous conviction may influence the quantum of punishment [Suban, 52 M 358], but even with the previous convictions the sentence must fit the crime [Galai Mana, AIR 1924 Bom 453 ; Nanhi Gond, AIR 1927 Nag 221 ].

Deterrent sentence is one of the hardest problems of penology [Kandaswami, 1931 MWN 265 ]. Theory of deterrent punishment should not be loosely put to practice [Gossain, 22 Cr LJ 679]. Deliberate defiance of law by a large body of persons justifies deterrent sentence [Jargi, AIR 1929 P 502].

In black-marketing offence no leniency should be shown. If, however, substantial imprisonment is awarded, unduly heavy fine is not called for [Adamji Umar Dalal v State of Bombay, AIR 1952 SC 14 : 1953 Cr LJ 542 ]. Deterrent sentence in anti-social offences when a person wants to get rich at the time of food scarcity [Pratapmal, AIR 1947 Bom 335 ; Mohanlal, AIR 1948 Bom 358 ]. Plea for elimination or mitigation of imprisonment cannot be accepted in penal treatment to smugglers, hoarders, adulterers etc. [Balkrishna Chhaganlal Soni v State of WB, AIR 1974 SC 120 : 1974 Cr LJ 280 : (1974) 3 SCC 567 ].

When maximum sentence is given, reasons should be recorded [Harnam, 27 Cr LJ 186; Dulla, AIR 1958 All 198 ].

If an inferior Court has imposed a sentence below the minimum prescribed by the law, it is the duty of the High Court to correct the error [Subbayyan, AIR 1968 K 330].

Sentences are usually ordered to run concurrently when two offences are akin or intimately connected with each other. Otherwise they should run separately [Burjorjee, 37 Cr LJ 217].

The general principle is that every offence for which a punishment is provided is a separate offence and every person participating in that offence is punishable to the extent of the maximum penalty provided, irrespective of the facts whether any person who joins with him in committing the offence is or is not punished separately [Satnarain, AIR 1942 933].

When an offence is punishable within two or more definitions of law, the accused shall not be punished with a more severe punishment than the Court could award for any of such offences [Jethmal, AIR 1932 SC 107 ]. When there are two offences committed more or less arising out of the same transaction, it is a mistake to impose double sentences [Bhagu, AIR 1932 L 365; Ragho, AIR 1939 P 388; Durgacharan, 51 Cal WN 534]. When an offence is punishable both under the Penal Code and another law, the offender can be punished under one or the other, but not under both [Veeraswami, 1930 MWN 529 : AIR 1931 Mad 18 ].

In the case of political offences arising out of beliefs of the accused, severe sentences defeat their object and create other offences [Jhabwalla, 55 A 1040]. At a time when respect for law is being undermined, severe or vindictive sentence still further undermines the respect of law [Sakina Bai, 55 A 220 (picketing liquor shop)]. Where offence involves no moral turpitude but is deliberate, fine is a particularly suitable punishment for one who can pay [Iftikharuddin, AIR 1941 L 324].

Page 7 of 11 [s 29] Sentences which Magistrates may pass.—

The Court may take into consideration that the accused was not cognizant of the offence committed by him [Rabindra, AIR 1933 Cal 332 ]. Among other factors regard may always be paid to the period of time during which the accused was in custody [Ishwarlal, AIR 1941 Bom 310 ].

Principles to be observed when there are alternative sentences for an offence [Chenchu, 1945, (2) Mad LJ 547 : AIR 1946 Mad 83 ; Ramalingayya, AIR 1942 Mad 723 ]. Principles to be taken into account in the case of first offender (section 360) and old offender [Md Hanif, AIR 1942 B 215]. There is no rule of law that the sentence of old offender should always be severe than the previous sentence [Abdul Gani, 59 M 995]. Duty of Court in the matter of sentence when there are major and minor charges [See Nizam, AIR 1948 L 47]. Consolidated sentences should not be passed for a number of offences [Kottoora, 25 Cr LJ 396]. When varying a sentence an appellate Court is bound by the limitations imposed by section 29 [Mohammad, 25 Cr LJ 312].

Police officers themselves transgressing the law are to be severely dealt with [Parmanand, AIR 1940 M 340; Jagdish, 43 Cr LJ 139]. [s 29.8] Pass any sentence authorised by law.— The power of the appellate Court to pass a sentence must be measured by the power of the Court from whose judgment an appeal has been brought before it. Only sentence which is within competence of the trying Court can be passed by the appellate Court [Jagat Bahadur Singh v State of MP, AIR 1966 SC 945 : 1966 Cr LJ 709 ; section 386 proviso 2]. Eminent doctor luring a woman into a path of immorality and finally renouncing her while convicted under sections 376, 417 of the Indian Penal Code, 1860 was debarred from practising for 3 years—Held, order was illegal as whether he should be allowed to practice or not is for the Indian Medical Council to decide [A.N. Mukharjee (Dr.) v State, AIR 1969 All 489 : 1969 Cr LJ 1203 ].

Powers of the Judicial Magistrate under section 29 cannot be exercised by him when he presides over the Children Court. [Saroop Kumar v State of HP, (1989) Cr LJ 1884 : 1989 (1) Sim LC 249 : 1989 (2) Chand LR (Cri) 124]. [s 29.9] Appealable sentence.— Sentence should correspond to the gravity or otherwise of the crime with which the accused convicted warrants and merits. Therefore to take into consideration the accused’s prayer that an appealable sentence be passed is wholly wrong [Yar Md., 58 C 392 : 32 Cr LJ 1181; Mg Saw, AIR 1939 R 69 : Anant, 37 Cr LJ 417]. [s 29.10] Death.— Under Code of Criminal Procedure, 1973 normal sentence for murder is life imprisonment and death sentence is an exception to be resorted to for reasons to be stated in exceptional cases [Hardayal v State of UP, AIR 1976 SC 2055 : 1976 Cr LJ 1578 : (1976) 2 SCC 812 ] and other cases noted under section 345(3). Where alternative sentence of imprisonment for life also awardable, for award of sentence of death, special reasons shall have to be stated [section 354(3)]. In England, Murder (Abolition of Death Penalties) Act, 1965 has abolished death sentence and a person convicted of murder is sentenced to imprisonment for life. In India death penalty has been upheld as constitutionally valid though limited to rarest of rare cases [Bachan Singh v State of Punjab, AIR 1980 SC 898 : 1980 Cr LJ 636 : (1980) 2 SCC 684 ; see also Santosh Kumar Satishbhushan Bariyar v State of Maharashtra, (2009) 6 SCC 498 : 2009 (7) Scale 341 : [2009] 9 SCR 90 ].

Life imprisonment is the rule and death penalty an exception. Each case must be analyzed and the appropriateness of punishment determined on a case-by- case basis with death sentence not to be awarded save in the “rarest of rare” case where reform is not possible [Santosh Kumar Satishbhushan Bariyar v State of Maharashtra, (2009) 6 SCC 498 : 2009 (7) Scale 341 : [2009] 9 SCR 90 ; see also Sangeet v State of Haryana, AIR 2013 SC 447 : 2012 (11) Scale 140 : (2013) 2 SCC 452 ; Shankar Kisanrao Khade v State of Maharashtra, (2013) 5 SCC 546 : 2013 (6) Scale 277 : 2013 Cr LJ 2595 (SC)].

Where the facts are more fully known and it is possible to determine who inflicted the fatal blows and who took a lesser part, it is a sound exercise of discretion to discriminate in the matter of punishment [Dalip Singh v State

Page 8 of 11 [s 29] Sentences which Magistrates may pass.— of Punjab, AIR 1953 SC 364 : 1954 SCR 145 : 1953 Cr LJ 1465 ; followed in Arun, AIR 1962 C 504]. As to the principle of discrimination [see also Shankar Sakharam, AIR 1957 Bom 226 ]. It has, however, also been observed by the Supreme Court that if an appellant did not inflict any blow on the deceased but shared the common intention to kill and actually participated in the criminal act by being present armed with lathi, he is as much guilty of the whole criminal act as the person who actually dealt the fatal blow on the sleeping man [Rishideo Pande v State of UP, AIR 1955 SC 331 : 1955 Cr LJ 873 ].

Youth by itself is not a reason for mitigating punishment in murder, but a person below 18 is very rarely sentenced to death [Venkatasubramanyam, I 1941 Mad 428 : AIR 1941 M 358; Chennal, ILR 1940 Mad 254 : AIR 1940 M 710 Satyanarayanamurthy, 1937 MWN 1183 : AIR 1938 M 55]. Under section 53 (English) Children and Young Persons Act, 1933 as substituted by section 1(5), Murder (Abolition of Death Penalty) Act, 1965 a person convicted of murder who appears to the Court to be under 18 shall not be sentenced to imprisonment for life. Here also a matter of rule as in cases of the accused being under 18 years, life imprisonment has been substituted for death sentences [Raisul v State of UP, AIR 1977 SC 1822 : 1977 Cr LJ 1555 : (1976) 4 SCC 301 ; Harnam v State of UP, AIR 1976 SC 2071 : 1976 Cr LJ 1642 : (1976) 1 SCC 163 ]. Age is no doubt to be taken into account but it should be considered along with the other circumstances [Pradyot, 33 Cr LJ 837; Tiri, AIR 1931 R 171]. Youth by itself is not an extenuating circumstance, especially when a murder is deliberate and premeditated [Mariappa, 48 Cr LJ 89]. When the accused has been found guilty of murder, the quantum or nature of evidence has nothing to do with the sentence of death [Thevar, AIR 1957 SC 614 : 1957 Cr LJ 1000 ]. Death sentence for a woman murdering a child for ornaments is not improper [Jumunia, AIR 1936 Nag 200 ].

More severe sentence must not be passed when circumstances of extenuation exist, merely because the consequences of the crime have been serious than in an ordinary case [Nga Saw, 39 Cr LJ 137]. Provocation is an extenuating circumstance [Khan, AIR 1955 Cal 146 ]. When several persons take part in a premeditated, deliberate, cruel, ruthless and brutal murder all may justly be condemned to death [Nibharesh, AIR 1948 Cal 295 : 39 Cr LJ 476].

Old age is a point for consideration but in itself not sufficient for not awarding death sentence [Sankaram, 1937 MWN 728 ]. Lesser sentence was passed having regard to the fact that the accused was of advanced age having wife and children [Ananta, AIR 1962 Cal 428 ].

Evading arrest after murder and delay of a few years in trial is a ground for lesser sentence [Narasimhaji, 1937 MWN 571 ; Pachayanna, AIR 1941 Mad 258 ]. Capital sentence not passed on account of long delay in trial [Mahabir, AIR 1946 Cal 36 : Benoyendra, 40 Cal WN 432] or execution of death sentence [Paire Dosadh, A 1944 FC 1 : 1944 FCR 61 ; Autor, 17 Cal WN 1213; Kalawati v State of HP, AIR 1953 SC 131 : 1953 SCR 546 : 1953 Cr LJ 668 ]. Delay in such cases has reference to delays due to process of law and not abscondence of accused and arrest after several years [Ananta, AIR 1962 C 428]. But this is no rule of law and it is a matter primarily for the local Government [Nawab Singh v State of UP, AIR 1954 SC 278 : 1954 Cr LJ 738 ].

There is nothing in principle or practice against the passing of death sentence when several persons are constructively (section 34 of the Indian Penal Code, 1860) guilty of murder [Mosaddi, AIR 1933 P 100; see Rahaman, AIR 1939 L 245; Sambangi, 40 Cr LJ 249; see, however, Pakhar, 31 Cr LJ 41]. Where ten persons were sentenced to death by the trial Court, it necessarily imposes a more serious and onerous responsibility on the High Court [Masalti v State of UP, AIR 1965 SC 202 : 1965 (1) Cr LJ 226 ]. In the cases where many persons are involved, Court should hesitate to pass death sentence on all and try to discriminate [Nibharesh, 39 Cr LJ 476]. [s 29.11] Exorbitant delay in execution of death sentence.— Exorbitant delay in disposal of mercy petition renders the process of execution of death sentence arbitrary, whimsical and capricious and, therefore, inexecutable. Such imprisonment, occasioned by inordinate delay in disposal of mercy petitions, is beyond the sentence accorded by the Court and to that extent is extra-legal and excessive [V. Sriharan v UOI, AIR 2014 SC 1368 : (2014) 4 SCC 242 : 2014 Cr LJ 1681 (SC)]. If there is undue, unexplained and inordinate delay in execution of death sentence, the Supreme Court is well within its powers under Article 32 to hear the grievance of the convict and commute the death sentence into life

Page 9 of 11 [s 29] Sentences which Magistrates may pass.— imprisonment on this ground alone after satisfying that the delay was not caused at the instance of the accused himself [Shatrughan Chauhan v UOI, 2014 Cr LJ 1327 (SC); Navneet Kaur v State of NCT of Delhi, AIR 2014 SC 1935 : 2014 (4) Scale 459 : 2014 Cr LJ 2474 (SC); V. Sriharan v UOI, AIR 2014 SC 1368 : (2014) 4 SCC 242 : 2014 Cr LJ 1681 (SC)]. [s 29.12] Imprisonment for life.— Transportation for life as a punishment has been substituted by imprisonment for life (amended section 53 I.P.C). Transportation for life or its present equivalent imprisonment for life must be treated as imprisonment for the whole of the remaining period of the convict’s natural life unless commuted or remitted by the appropriate authority under section 432 [Gopal Godse Vinayak v State of Maharashtra, AIR 1961 SC 600 : 1961, (3) SCR 440 : 1961 (1) Cr LJ 736 ; Ratan Singh, AIR 1976 SC 1552 ; Sangeet v State of Haryana, AIR 2013 SC 447 : 2012 (11) Scale 140 : (2013) 2 SCC 452 ;; Duryodhan Rout v State of Orissa, 2014 (3) Crimes 494 (SC) : AIR 2014 SC 3345 : (2015) 2 SCC 783 ]. It should not be given merely because the evidence is not strong enough to justify an irrevocable sentence. If there is any doubt, there should be an acquittal [Sohraj, AIR 1930 P 247; Suntokhi, AIR 1933 P 149 FB; Mohsena, AIR 1939 C 610; Md. Muria, 38 Cr LJ 953]. It has, however, also been laid down that an accused is entitled to the benefit of reasonable doubt in the matter of sentence as in conviction [Nga Kan, AIR 1936 R 71 : 37 Cr LJ 463].

Imprisonment for life means imprisonment for rest of the life of the accused [Gopal Vinayak Godse v State of Maharashtra, AIR 1961 SC 600 : 1961 (1) Cr LJ 736 ; Life Convict Bengal v B.K. Srivastava, AIR 2013 SC 1163 : 2013 (3) SCC 425 : 2013 (2) Scale 467 ].

Imprisonment for the remainder of the accused’s natural life—As per the the Criminal Law (Amendment) Act 2013 the punishment for rape (section 376) is rigorous imprisonment for a term which shall not be less than ten years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person’s natural life, and shall also be liable to fine. In sections 370, 376(A), 376(D), 376(E) also it is specifically mentioned that “Life” shall mean imprisonment for the remainder of that person’s natural life. [s 29.13] Imprisonment for a term.— Short term imprisonment upon a first offender is very often an introduction to a life of crime [Achar, AIR 1941 SC 48 ; Nur Md., AIR 1939 SC 260 ]. Sentence passed on a juvenile offender cannot be more severe than adult co-accused with the previous convictions [Abdul Rahman, 46 B 429].

There is no provision for imprisonment in default of fine to run concurrently with a substantive sentence of imprisonment awarded for any other offence tried in the same case [Balla Venkayya, AIR 1944 M 448].

Company being juridical person cannot be sentenced to imprisonment [Kediya Vanaspati Pvt Ltd v State of AP, 1981 Cr LJ 203 : 1980 (2) Andh WR 50 : 1980 Mad LJ (Cri) 546 : 51 Comp Cas 389; Anathbandhu, AIR 1952 C 759 : 1952 Cr LJ 759 ; State of Maharashtra v Joseph Anthony Pareira, 1972 Cr LJ 274 (Bom) : 73 Bom LR 613 : 1972 Mah LJ 90 ; Girdharilal v Lal Chand, AIR 1970 Raj 145 : 1970 Cr LJ 987 (Laxmiratan Cotton Mills v S.K. Bhatnagar, 1975 Cr LJ 1881 : (1975) 1 All LR 377 (All) distd.)]. [s 29.14] Imprisonment till rising of Court.— Is not illegal but should only be imposed in exceptional cases [Muthu Nadar, 1945 Mad 529 : AIR 1945 M 313 : Paneswara, AIR 1946 M 173]. When the law prescribes imprisonment for an offence it normally means sending to jail. It is an evasion of statute to imprison till the rising of the Court and would be justified only in very exceptional cases, e.g., in technical offences or the existence of unusually strong extenuating circumstances [Kaniappan, AIR 1955 M 424]. Where an accused is sentenced to imprisonment till the rising of the Court he is simply detained in custody in the Court premises for a few hours. It is now a procedure in law by reason of the provision to section 418(1). As for imprisonment for a day, which is a punishment different from till the rising of the Court a warrant has to be made out and the accused sent to jail for execution under section 418(1). [s 29.15] Fine.— Mere ability to pay is no ground for maximum fine prescribed [Gangasagar, AIR 1929 All 919 ]. It is not proper to impose heavy fine which is impossible for the accused to pay. It means suffering to women and children at home [Dhanu, AIR 1928 P 59; Abdulla, 24 Cr LJ 278; Allah Ditta, 16 L 44; Dipchand, 27 Cr LJ 480]. Sentence

Page 10 of 11 [s 29] Sentences which Magistrates may pass.— of joint fine on two accused with terms of imprisonment in default in the case of each of them, is not legal [Safder, AIR 1938 P 271].

Fine should never be added to a substantial term of imprisonment, except in very exceptional cases. In English practice it is hardly done [Islam, 35 Cal WN 519, see Mehdi, AIR 1941 All 310 ; Kammoon, AIR 1942 All 225 ]. Where the longest term of imprisonment is awarded, it is highly undesirable to impose fines in addition [Babulal, AIR 1960 All 223 ].

In the case of ill-gotten wealth by black marketing or evading sales-tax, etc., fine should be deterrent [Abdul Azees, AIR 1955 NUC (M) 434; see Mohanlal, AIR 1948 Bom 358 ante]. [s 29.16] Award of compensation.— Power of courts to award compensation is not ancillary to other sentences but it is in addition thereto. This power was intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. It is, to some extent, a constructive approach to crimes. It is indeed a step forward in our criminal justice system [Manish Jalan v State of Karnataka, JT 2008 (7) SC 643 ]. The purpose of imposition of fine and/or grant of compensation to a great extent must be considered having the relevant factors therefor in mind. It may be compensating the person in one way or the other [Dilip S. Dahanukar v Kotak Mahindra Co Ltd, ((2007) 6 SCC 528 65; see also Alister Anthony Pareira v State of Maharashtra, 2012 Cr LJ 1160 : (2012) 2 SCC 648 : (2012) 1 SCC (Cri) 953 : AIR 2012 SC 3802 ].

In the BMW Case the Supreme Court directed the accused to pay an amount of Rs 50 lakh to the Union of India which will be utilized within for providing compensation to the victims of motor accidents, where the vehicles owner, driver, etc. could not be traced, like victims of hit and run cases [State Tr. P.S. Lodhi Colony New Delhi v Sanjeev Nanda, (2012) 8 SCC 450 : 2012 Cr LJ 4174 : AIR 2012 SC 3104 ]. [s 29.17] Factories Act.— In passing sentence under the Factories Act the beneficient principles intended to serve must be borne in mind [Jamnadas, AIR 1962 G 234]. [s 29.18] Enhanced punishment.— Section 75 of the Indian Penal Code, 1860 does not authorise the passing of a sentence in excess of the limits laid down in section 29, Code of Criminal Procedure, 1973 [Gulab, Ratanlal, UCC 688; David, 6 Bom LR 548]. [s 29.19] Execution of sentence.— See sections 413–431. [s 29.20] Probation.— See sections 360–361. [s 29.21] Interference.— If the discretion regarding sentence is properly exercised higher Court would not interfere [Shiv Govind v State of MP, AIR 1972 SC 1823 : 1972 Cr LJ 1181 : (1972) 3 SCC 399 ; Vijay Kumar v State of Punjab, AIR 1974 SC 687 , 689 : 1974 Cr LJ 615 : (1974) 3 SCC 769 ]. Interference is justified if—(a) the sentence is obviously inadequate. Ben Raj, (1955) 2 SCR 583 ]; (b) relevant facts have not been considered [Alamgir v State of Bihar, AIR 1959 SC 436 : 1959 Cr LJ 527 ; (c) where the lesser penalty is perverse [Dalip Singh v State of Punjab, AIR 1953 SC 364 : 1953 Cr LJ 1465 : 1954 SCR 145 ]. [s 29.22] Provocation.— Provocation received by the accused may be considered in passing sentence [Suman, (1972) 3 SCC 201 para 37]. [s 29.23] Hardened criminal.— The sentencing Court can consider whether the offender is a hardened criminal or a solitary offender and whether there are chances of correction [Modi Ram v State of MP, AIR 1972 SC 2438 : 1972 Cr LJ 1521 : (1972) 2 SCC 630 ; Ramashraya Chakravarti v State of MP, AIR 1976 SC 392 , 393 : 12976 Cr LJ 334 : (1976)

Page 11 of 11 [s 29] Sentences which Magistrates may pass.— 1 SCC 281 ; Ashok Kumar v State (Delhi Administration, AIR 1980 SC 636 : 1980 Cr LJ 444 : (1980) 2 SCC 282 ; Madhav Hayawadan Rao Moskot v State of Maharashtra, AIR 1978 SC 1548 para 7 : 1978 : Cr LJ 1678 : (1978) 3 SCC 544 ]. [s 29.24] Political views.— Political views of any party are immaterial for sentencing Sakinabai, AIR 1931 Bom 70 ]. [s 29.25] Section 64, Indian Penal Code.— Section 29, Code of Criminal Procedure, 1973 must be read along with section 64 of the Indian Penal Code, 1860. In particular it is implicit in section 64 of the Indian Penal Code, 1860 that— (a) imprisonment in default of payment of fine is consecutive to the substantive term of imprisonment [Bhedu v Kari, AIR 1958 SC 35 ; Re Arif, AIR 1925 Mad 993 ]; (b) Appellate Court cannot reduce the sentence of imprisonment for default to the substantive imprisonment already undergone (as that would, in effect mean cancelling or setting aside the imprisonment in default of payment of fine [Laxman, (1956) MBLR 148]. [s 29.26] Section 65, Indian Penal Code.— Section 29, Code of Criminal Procedure, 1973 governs the Magistrates maximum punitive power, even for awarding imprisonment in default of payment of fine (section 65 of the Indian Penal Code, 1860) [Nanalal Harishanker v State of Gujarat, AIR 1969 Guj 62 : 1969 Cr LJ 389 : ILR (1968) Guj 338 ]. [s 29.27] Special Acts.— Section 29 extends to offences under Special Acts—e.g., the Drugs and Cosmetics Act 1964 [Ravindra Prakash Arya (Dr.) v UOI, 1984 Cr LJ 1321 : 1984 (2) FAC 112 : 1984 All Cr R 306 (All)]. The Special Act may of course provide to the contrary [State of UP v Sabir Ali, AIR 1964 SC 1673 : 1964 (2) Cr LJ 606 ].

3

Substituted by the Code of Criminal Procedure (Amendment) Act, 2005 (25 of 2005), section 5. For “five thousand rupees” (w.e.f. 23 June 2006 vide Notification No. SO 923(E), dated 21 June 2006).

4

Substituted by the Code of Criminal Procedure (Amendment) Act, 2005 (25 of 2005), section 5. For “one thousand rupees” (w.e.f. 23 June 2006 vide Notification No. SO 923(E), dated 21 June 2006).

End of Document

[s 30] Sentence of imprisonment in default of fine.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER III POWER OF COURTS

The Code of Criminal Procedure, 1973 CHAPTER III POWER OF COURTS [s 30] Sentence of imprisonment in default of fine.— (1) The Court of a Magistrate may award such term of imprisonment in default of payment of fine as is authorised by law: Provided that the term— (a) is not in excess of the powers of the Magistrate under Section 29; (b) shall not, where imprisonment has been awarded as part of the substantive sentence, exceed onefourth of the term of imprisonment which the Magistrate is competent to inflict as punishment for the offence otherwise than as imprisonment in default of payment of the fine. (2) The imprisonment awarded under this section may be in addition to a substantive sentence of imprisonment for the maximum term awardable by the Magistrate under Section 29. [s 30.1] Changes.— Section 30 corresponds to old section 33 with some verbal alterations without any change in substance. [s 30.2] Scope and application of section 30.— The section defines the power of a Magistrate to award imprisonment in default of payment of fine. Fine is imposable under the Penal Code or other special and local laws. Sections 63–70 of the Indian Penal Code, 1860 and sections 421–424 of Code of Criminal Procedure, 1973 apply to all fines under the special and local laws unless a special procedure is provided in them. Section 30 does not authorise the passing of a sentence in default of payment of fine in excess of the term prescribed by section 65 of the Indian Penal Code, 1860 [Venkatesagadu, 10 Mad 105 FB]. A conjoint reading of section 30 and sections 40 and 67-Indian Penal Code, 1860 makes the position clear that a sentence of imprisonment can be awarded in default of payment of fine even though not provided by a statute [Bashiruddin Ashraf v State of Bihar, AIR 1957 SC 645 : 1957 Cr LJ 1023 ; Kishanlal Sindhi v Executive Officer, 1980 Cr LJ 365 (Ori) : (1979) 48 Cut LT 542]. When the sentence is imprisonment and fine, this section should be read with sections 64–65 of the Indian Penal Code, 1860 and when the sentence is of fine only, with sections 66 and 67 of the Indian Penal Code, 1860.

“Authorised by law” means authorised by all the provisions of law taken together [Venkatesagadu, ILR 10 Mad 105 (FB); see sections 63–67 of Indian Penal Code, 1860]. When offence is punishable with fine only, section 67 of the Indian Penal Code, 1860 provides that the imprisonment in default of payment shall be simple and the term shall not exceed the following scale : (1) not more than Rs. 50—not exceeding two months; (2) not more than Rs. 100—not exceeding four months and (3) in any other case—not exceeding six months. [s 30.3] Imprisonment in default.— Imprisonment in default of payment of fine is not a sentence. It is awarded only as a measure to enforce payment of fine. Hence, period of imprisonment in default cannot be added to the substantive sentence of

Page 2 of 3 [s 30] Sentence of imprisonment in default of fine.— imprisonment to negative the jurisdiction of the Magistrate [P. Balaraman v State, 1991 Cr LJ 166 (Mad) : 1990 Mad LW (Cri) 263 : 1990 Mad LJ (Cri) 534 (Arunachalam, J)].

When the trial Court takes decision of imposing fine upon any accused for committing some kinds of offence, that Court should—ever think that either some kinds of nexus between the amount of fine which is to be imposed upon him and capacity of that accused to pay it, is existing or not [Philip Bhimsem Aind v State of Maharashtra, 1995 Cr LJ 169 (Bombay)].

Imprisonment for default of payment of fine is not a substantive punishment but is a punishment imposed for failure to pay the fine [Paras Nath v State, AIR 1969 All 116 : 1960 Cr LJ 350 : 1969 All CrLR 98 : 1968 All LJ 439, para 3].

The term of imprisonment in default of payment of fine is not a sentence. It is a penalty which a person incurs on account of non-payment of fine. The sentence is something which an offender must undergo unless it is set aside or remitted in part or in whole either in appeal or in revision or in other appropriate judicial proceedings or “otherwise”. A term of imprisonment ordered in default of payment of fine stands on a different footing. A person is required to undergo imprisonment either because he is unable to pay the amount of fine or refuses to pay such amount. He, therefore, can always avoid to undergo imprisonment in default of payment of fine by paying such amount. It is, therefore, not only the power, but the duty of the Court to keep in view the nature of offence, circumstances under which it was committed, the position of the offender and other relevant considerations before ordering the offender to suffer imprisonment in default of payment of fine [Shanti Lal v State of MP, 2008 Cr LJ 386 (393) : 2007 AIR SCW 6494].

Default sentence is not punishment or sentence stricto sensu and the imposition of default sentence is only as a mode of enforcement [K. Narayanan Nambiar v A.M. Mathew, 2009 Cr LJ 30 (33) (Ker) : ILR 2008 (4) Kerala 170 ; C. Ganga v Lakshmi Ammal, 2008 Cr LJ 3359 (Ker) : 2008 (2) KLJ 25 ]. [s 30.4] Default sentence.— The term of imprisonment in default of payment of fine is not a sentence. It is a penalty which a person incurs on account of non-payment of fine. The sentence is something which an offender must undergo unless it is set aside or remitted in part or in whole either in appeal or in revision or in other appropriate judicial proceedings or “otherwise”. A term of imprisonment ordered in default of payment of fine stands on a different footing. A person is required to undergo imprisonment either because he is unable to pay the amount of fine or refuses to pay such amount. He therefore can always avoid to undergo imprisonment in default of payment of fine by paying such amount. It is, therefore, not only the power but the duty of the Court to keep in view the nature of offence, circumstances under which it was committed, the position of the offender and other relevant considerations before ordering the offender to suffer imprisonment in default of payment of fine [Shanti Lal v State of MP, 2008 Cr LJ 386 (393) (SC) : (2007) 11 SCC 243 : 2007 (4) Crimes 369 ]. Default sentences for non-payment of fine cannot be ordered to run concurrently [Donatus Tony Ikwanusi v Investigating Officer, NCB, 2013 Cr LJ 1938 (Mad)]. [s 30.5] Substantive and alternative sentences.— An alternative sentence of imprisonment does not affect the power to impose full period of substantive imprisonment [Ram, 6 C 573]. Even in summary trial, imprisonment in default of payment of fine is governed by section 30 and not by section 262(2) which applies only to substantive sentences of imprisonment. But as a matter of prudence, imprisonment in default of payment should not ordinarily exceed the limit in section 262(2) [Ghulam Murid, AIR 1943 SC. 124 ]. [s 30.6] Limitation.— Expiry of period of limitation for the recovery of fine does not terminate liability to undergo imprisonment in default of payment of fine [Sham Singh v State of Punjab, AIR 1980 P&H 1160 : (1980) 82 Punj LR 353 : ILR (1980) 1 P&H 299 ]. [s 30.7] Section 30 (1), Proviso (a).— Proviso applies when the sentence is of fine only and here the imprisonment in default of payment may be the whole period which the Magistrate is competent to inflict for the offence (and not by reason of his general

Page 3 of 3 [s 30] Sentence of imprisonment in default of fine.— powers). Proviso (b) applies when the sentence is of imprisonment as well as fine and in such a case the term of imprisonment in default of payment of fine shall not exceed one fourth of the period of imprisonment which he is competent to inflict as punishment for the offence. He cannot inflict higher punishment by resorting to section 65 of the Indian Penal Code, 1860 [Chhajulal v State of Rajasthan, AIR 1972 SC 1809 : 1972 Cr LJ 1184 : (1972) 3 SCC 411 ; see Venkatesagadu, supra and Darba, 1 A 461]. Thus, in a conviction under section 143 of the Indian Penal Code, 1860 two months imprisonment in default of fine of Rs. 50 is illegal as it exceeds one fourth of the maximum fixed [Gokul, AIR 1941 Pat 48 ]. [s 30.8] Section 30 (1), Proviso (b).— See Chhajulal v State of Rajasthan, AIR 1972 SC 1809 : (1972) 3 SCC 411 : 1972 Cr LJ 1184 . [s 30.9] Sub-section (2).— Section 30(2) clarifies that where the offence is punishable with imprisonment as well as with fine, imprisonment in default may be imposed in addition to the maximum awardable under section 29, Code of Criminal Procedure, 1973. Where the permitted substantive sentence is fine only, section 30 (2) has no relevance. [s 30.10] Sections 30 and 65 of the IPC.— See Gokul, AIR 1941 Pat 48 . End of Document

[s 31] Sentence in cases of conviction of several offences at one trial.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER III POWER OF COURTS

The Code of Criminal Procedure, 1973 CHAPTER III POWER OF COURTS [s 31] Sentence in cases of conviction of several offences at one trial.— (1) When a person is convicted at one trial of two or more offences, the Court may, subject to the provisions of Section 71 of the Indian Penal Code (45 of 1860), sentence him for such offences, to the several punishments prescribed therefor which such Court is competent to inflict; such punishments when consisting of imprisonment to commence the one after the expiration of the other in such order as the Court may direct, unless the Court directs that such punishments shall run concurrently. (2) In the case of consecutive sentences, it shall not be necessary for the Court by reason only of the aggregate punishment for the several offences being in excess of the punishment which it is competent to inflict on conviction of a single offence, to send the offender for trial before a higher Court : Provided that— (a) in no case shall such person be sentenced to imprisonment for a longer period than fourteen years; (b) the aggregate punishment shall not exceed twice the amount of punishment which the Court is competent to inflict for a single offence. (3) For the purpose of appeal by a convicted person, the aggregate of the consecutive sentences passed against him under this section shall be deemed to be a single sentence. [s 31.1] Changes.— Section 31 corresponds to old section 35 with some verbal alterations without any change in substance. [s 31.2] Scope and application of section 31.— The ordinary powers of sentence when there is a conviction of a single offence are given in section 29. This section relates to the quantum of punishment which may be legally passed when there is—(1) one trial, and (2) the accused is convicted of “two or more offences” [O.M. Cherian v State of Kerala, AIR 2015 SC 303 : 2014 (12) Scale 636 , (2015) 2 SCC 501 : 2015 Cr LJ 593 (SC)]. Ordinarily there should be a separate charge and separate trial for each distinct offence (section 218), but there are exceptions (sections 219–221, 223). This section says that subject to the provisions of section 71 of the Indian Penal Code, 1860 separate sentences for two or more offences of which the accused is found guilty may be passed, but the aggregate punishment must not exceed the limit fixed in provisos (a) and (b). Read with section 71 of the Indian Penal Code, 1860 the words “two or more offences” in effect mean offences, which are not composed of parts of one and the same offences but are different offences which are separate and separable. The problem however arises (especially in border-line cases) of determining whether two or more offences are really made up of parts of one offence or are separate offences.

Section 31 of the Code vests a discretion in the Court to direct that the punishment shall run concurrently when

Page 2 of 8 [s 31] Sentence in cases of conviction of several offences at one trial.— a person is convicted at one trial of two or more offences. The Court may sentence the accused for such offences to the several punishments prescribed therefor which such Court is competent to inflict. Such punishments would consist of imprisonment to commence the one after the expiration of the other in such order as the Court may direct subject to the limitation contained in Section 71 of Indian Penal Code [Satnam Singh Puran Singh Gill v State, 2009 Cr LJ 3781 (3785) (Bom) : 2009 (1) Bom CR (Cri) 549 : 2009 All MR (Cri) 1351].

When the accused is sentenced for two or more offences, the punishments consisting of imprisonment are to commence one after the expiration of the other, as mentioned in the order, unless the Court directs that such punishments shall run concurrently. Court can even indicate the order in which the consecutive sentences shall be suffered. If not specifically indicated, the sequence of sentences in the order of Court must be followed. Consecutive sentences however have to be subject to proviso to section 31(2) of the Code [Subhash Devidas Deshmukh v State of Maharashtra, 2014 Cr LJ 1196 (Bom) (DB) : 2013 (4) Bom CR(Cri) 292; See also Manoj v State of Haryana, AIR 2014 SC 644 (647) : (2014) 2 SCC 153 ; Sunil Anandrao Sawant v Government of Maharashtra, 2010 Cr LJ 3579 (Bom—DB)].

Section 427 of the Code applies when there are different trials while section 31 applies at a time when in one trial the accused gets convicted for two or more offences. In section 31, it is the multiple offences which are dealt with, while in section 427 of Code of Criminal Procedure, 1973 it is multiple trials and sentences that are dealt with [Subhash Devidas Deshmukh v State of Maharashtra, 2014 Cr LJ 1196 (Bom) (DB) : 2013 (4) Bom CR (Cri) 292 ].

Any sentence of imprisonment in default of fine has to be in excess of, and not concurrent with, any other sentence of imprisonment to which the convict may have been sentenced [O.M. Cherian v State of Kerala, AIR 2015 SC 303 : 2014 (12) Scale 636 : (2015) 2 SCC 501 : 2015 Cr LJ 593 (SC)].

The words in section 31 of the Code “....sentence him for such offences, to the several punishments prescribed therefor which such Court is competent to inflict; such punishments when consisting of imprisonment to commence the one after the expiration of the other in such order as the Court may direct” indicate that in case, the Court directs sentences to run one after the other, the Court has to specify the order in which the sentences are to run. If the Court directs running of sentences concurrently, order of running of sentences is not required to be mentioned. Discretion to order running of sentences concurrently or consecutively is judicial discretion of the Court which is to be exercised as per established law of sentencing. The Court before exercising its discretion under section 31 of the Code is required to consider the totality of the facts and circumstances of those offences against the accused while deciding whether sentences are to run consecutively or concurrently [OM Cherian v State of Kerala, AIR 2015 SC 303 : 2014 (12) Scale 636 , (2015) 2 SCC 501 : 2015 Cr LJ 593 (SC)].

The word “may” not only confers a power but also imposes a duty of putting it in use [Biro Swain v State of Orissa, AIR 1969 Ori 146 : 1969 Cr LJ 925 ]. “May” should be read as “shall” and in a case in which section 71 of the Indian Penal Code, 1860 does not come into play there must be separate sentences for all the offences an accused is found guilty of. The Court has no discretion to pass only one sentence when the accused is convicted of several offences [Mi Hlwa, AIR 1934 R 338; Dharamdas, AIR 1933 section 9; Wazir, 10 A 58; Zamir, AIR 1950 Lah 97 ; Ibrahim, AIR 1940 B 129; Tustipada, AIR 1951 Ori 284 ; Govind Singh, AIR 1962 MP 36 —Contra : Pujamal, AIR 1951 Bom 244 ]. It is illegal to refuse to pass on conviction a sentence however nominal, on the ground that detention under trial is sufficient punishment [Govind Singh, supra]. But in view of the newly-added provision contained in section 428 it may be that if the setting off of the period of detention as an undertrial prisoner against the sentence of imprisonment imposed on the accused, as has now to be statutorily set off, the accused may not have to undergo any imprisonment at all. The Supreme Court has held that when a person is convicted of several offences, it is the duty of the Court to pass a separate sentence for each offence. The law does not encourage conviction of a person for an offence without a sentence being imposed therefor [Jayaram Vithoba v State of Bombay, AIR 1956 SC 146 , 148 : 1956 Cr LJ 318 : 1955 (2) SCR 1049 ]. Where the accused are convicted for different offences but a combined sentence is passed without specifying the sections, the order is illegal [Brijnandan, AIR 1948 All 136 ]—Contra: Failure to specify sentence under each count is an irregularity [Zamir, supra]. Single sentence of imprisonment for conviction for various

Page 3 of 8 [s 31] Sentence in cases of conviction of several offences at one trial.— offences does not vitiate the trial, unless there has been a failure of justice [Murlidhar, AIR 1953 All 245 ]. Composite sentence of fine for several offences—What it means [Murlidhar, supra].

When accused is convicted of several offences, he could not be sentenced to imprisonment for period longer than 14 years. As such 20 years rigorous imprisonment imposed on accused was set aside [Chatar Singh v State, 2007 Cr LJ 796 (SC) : 2007 (1) Crimes 171 : AIR 2007 SC 319 : (2007) 2 SCC (Cri) 310 ].

When certain consequences follow from the commission of an unlawful act by a person and he is punished in respect of such consequences, he cannot be punished over again for the act which produced the consequences. When a person stabbed dies, the offender can be punished for murder but not also for grievous hurt. A person can be punished under dacoity but not also preparing to commit dacoity. A driver who is punished under section 304A of the Indian Penal Code, 1860 for causing death by negligence cannot in addition be punished under section 121, Motor Vehicles Act [Sahadevan, 1954 (2) Mad LJ 765 : AIR 1955 M 548]. A man cannot be punished twice for the same offence or for a substantive offence and its abetment [Ganpat, 34 Cr LJ 311].

In the instant case all the offences were taken to be tried at one trial but the trial Court, though framed charge in each of the offences, failed to award punishment for each of the distinct offences rather con-jointly awarded the sentence. It was held that the trial Court ought to have awarded separate punishment as provided for and that the punishment not passed in consonance with section 31, Code of Criminal Procedure, 1973 was improper [Lalpekkeima v State of Mizoram, 2009 Cr LJ 3279 (3280, 3281) (Gau) : 2009 (2) Crimes 783 ]. [s 31.3] Imprisonment—Meaning.— The term “imprisonment” would include the sentence of imprisonment for life. [Sunil Anandrao Sawant v Government of Maharashtra, 2010 Cr LJ 3579 (3585) : (2010) 2 Crimes 751 (Bom); see also Life Convict Bengal v B.K. Srivastava, AIR 2013 SC 1163 : 2013 (3) SCC 425 : 2013 (2) Scale 467 ; Sanaullah Khan v State of Bihar, 2013 Cr LJ 1527 : 2013 (3) SCC 52 ].

A prisoner serving a life sentence has no indefeasible right to release on completion of either fourteen years or twenty years imprisonment. A convict undergoing life imprisonment is expected to remain in custody till the end of his life, subject to any remission granted by the appropriate Government under section 432 of the Code which in turn is subject to the procedural checks in that section and the substantive check in section 433A of the Code [Sangeet v State of Haryana, AIR 2013 SC 447 : 2012 (11) Scale 140 : (2013) 2 SCC 452 ; Duryodhan Rout v State of Orissa, 2014 (3) Crimes 494 (SC) : AIR 2014 SC 3345 : (2015) 2 SCC 783 ].

Since sentence of imprisonment for life means jail till the end of normal life of the convict, the sentence of imprisonment of fixed term has to necessarily run concurrently with life imprisonment. In such case, it will be in order if the Sessions Judges exercise their discretion in issuing direction for concurrent running of sentences. Likewise if two life sentences are imposed on the convict, necessarily, Court has to direct those sentences to run concurrently [O.M. Cherian v State of Kerala, AIR 2015 SC 303 : 2014 (12) Scale 636 , (2015) 2 SCC 501 : 2015 Cr LJ 593 (SC)].

Sentence of imprisonment for life implies imprisonment till the end of normal life of convict. It cannot be directed to run consequently. [Muthuramalingam v State, AIR 2016 SC 3340 : 2016 (6) SCJ 687 ]. [s 31.4] Subject to the provisions of section 71, Indian Penal Code.— The power to impose separate sentence for each offence, under section 31(1), Code of Criminal Procedure, 1973, is expressly made subject to section 71 of the Indian Penal Code, 1860 [Puramal, AIR 1988 SC 9359 ]. Section 71 of the Indian Penal Code, 1860 deals mainly with the following situations :—

Page 4 of 8 [s 31] Sentence in cases of conviction of several offences at one trial.— (a) Offence made up of different parts, where each part constitutes an offence. [See Haji Lalbaksh, AIR 1943 Lah 212 ]. (b) Offence falling under different definitions of offences. [See Puramal, AIR 1988 SC 935 . (c) Two or more acts are committed, of which one (or some) constitute one offence, but when combined, those acts constitute a different offence, Cf. section 220 (4), Illustration (m) and Udai Bhan v State of UP, AIR 1962 SC 1116 : 1962 (2) Cr LJ 251 .

The first portion of section 71 of Indian Penal Code, 1860 is illustrated by illustration as to that section.

In such a case, under section 71 of the Indian Penal Code, 1860 “the offender shall not be punished with a more severe punishment than the Court which tries him could award for any one of such offences”,—which in effect means that there cannot be separate sentences for the offences. Section 71 of the Indian Penal Code, 1860 provides in effect against a person being punished more than once for the same offence. A man cannot be punished for the offence as a whole and again for the part which make the offence, e.g., when separate sentences are given under section 147 and section 149 of the Indian Penal Code, 1860 [Haji Lalbaksh, AIR 1943 L 212].

It is clear from section 35 (now section 31) and section 71 of the Indian Penal Code, 1860 that where anything is an offence falling within two or more separate definitions of any law in force by which offences are defined or punished, the offender shall not be punished for with a more severe punishment than the trying Court could offer for any of such offences. Thus, where one is convicted under section 9(a) (possession) or section 9(b) (transport) of the Opium Act, separate sentences can be passed, but the sum total of these sentences should not exceed the maximum sentence that the trying Court could award for any of these offences [Puranmal Agarwalla v State of Orissa, AIR 1958 SC 935 : 1958 Cr LJ 1432 : 1959 SCR 1162 ].

Imposing separate sentences when the acts constituting the different offences form part of the same transaction, is not justified [Champa Pasin, A 1928 P 328; Ragha, 40 Cr LJ 759; Durgacharan, 48 Cr LJ 389]. If there is abduction with intent to rape and there is rape, separate sentences under sections 363 and 376 of the Indian Penal Code, 1860 cannot be given [Imam Ali, AIR 1926 L 212]. Separate sentences under sections 353 and 147 of the Indian Penal Code, 1860 cannot be passed when the act which converts the accused into an unlawful assembly is the same as renders them liable under section 353 [Manakchand, AIR 1926 Lah 581 ]. Separate sentences cannot be given for being members of an unlawful assembly with the object of committing an offence and the actual commission of that offence [Sarat Ch., AIR 1923 Cal 408 : 24 Cr LJ 851]. Separate sentences cannot be passed for offences under sections 323 and 525 of the Indian Penal Code, 1860 [Murugan, 1933 MWN 244 ; Kondalayya, 1937 MWN 572 ], or under sections 326 and 328 of the Indian Penal Code, 1860 [Sheo Nandan, AIR 1945 Ori 48 ]. The principle of such cases is that (under section 31 read with section 71 of the Indian Penal Code, 1860) it is not legal to sentence an accused person to two separate punishments for what is substantially the same act, though it falls under two separate definitions of offences. The test whether separate sentences should be given is—Is the accused being punished more than once for what may be regarded for practical purposes as substantially a single offence? If it is so, separate punishment cannot be given.

Separate sentences cannot be passed for possession of a wireless receiving set without licence and for also working that set without licence [Pandian, AIR 1938 M 82]. Where the charge is under section 121 and section 124A Indian Penal Code, 1860 in respect of a single speech and the accused is found guilty under section 124A and convicted, a second penalty under section 121 could not be given without setting aside the sentence under section 123-A [Mohani, AIR 1922 B 284].

It is competent for a Criminal Court to pass several punishments for the several offences of which the accused has been held guilty. The several terms of imprisonment commences one after the other and in such an order as the Court may direct, unless the Court directs that such punishments shall run concurrently. Each of the term

Page 5 of 8 [s 31] Sentence in cases of conviction of several offences at one trial.— of imprisonment to which the accused has been sentenced for the several offences has to be within the power of the Court and the term of imprisonment is not rendered illegal merely because the total term of imprisonment in the case of consecutive sentences is in excess of punishment within the competency of the Court [K. Prabhakaran v P. Jayarajan, 2005 SCC (Cri) 451 (472, 473) : AIR 2005 SC 668 : JT 2005 (1) SC 173 ]. [s 31.5] Sentence.— Accused convicted for several offences could not be sentenced to imprisonment for a period longer than 14 years. Sentence of 20 years rigorous imprisonment liable to be set aside [Chatar Singh v State of MP, AIR 2007 SC 319 : 2007 (1) Crimes 171 (SC) : 2007 Cr LJ 796 ].

In interpreting section 71 Indian Penal Code, 1860 a Full Bench of Calcutta High Court has held in 1889 that separate sentences on persons for the offences of rioting (section 148 Indian Penal Code, 1860) and grievous hurt (section 324 Indian Penal Code, 1860) are not legal where such persons did not commit any act which amounted to voluntarily causing hurt, but were guilty of that offence merely by reasons of section 149 Indian Penal Code, 1860, as an offender cannot under section 71 be punished separately for the two offences constituted by the whole and the part respectively [Nilmony, 16 C 442 FB, approving Ram Pratab, 6 A 121]. The removal of the word “distinct”, as was made by amendment in 1923, has in no way affected the authority of the Full Bench decision [Kitabdi, 35 Cal WN 184; Harendra, 35 Cal WN 345]. Separate sentences in such cases are illegal even if they are made to run concurrently [Kiamuddi, 51 C 79]. There may be separate convictions but not separate sentences in view of section 71 Indian Penal Code, 1860 [Pooniah, 57 M 643]. In the above case separate sentences can no doubt be given if a person convicted of rioting also actually causes grievous hurt [Baldeo, AIR 1940 N 120; Sothavalan, 56 M 481; Pesh Md, AIR 1942 P 319; Tinny, AIR 1952 All 92 ]. The Calcutta view in Nilmony, supra, has been agreed to in other jurisdiction [see Baja, 8 P 274; Baldeo, supra; Krishna, AIR 1919 Mad 353 ; Pooniah, supra; Sothavalan, supra; Mekraj, AIR 1939 M 787; Abdul Qudir, AIR 1930 L 1044; Bishna, AIR 1922 L 405; Manakchand, AIR 1926 L 581; Sheo Nandan, AIR 1945 Ori 48 ; Haji, AIR 1943 SC 212 ] except in Bombay where it has been held that separate sentences for offences under sections 148, 149, 316 Indian Penal Code, 1860 are legal, provided the aggregate does not exceed the punishment provided for any of the offences of the jurisdiction of the Courts sentencing the offender [Bana Punja, 17 B 260 FB : Piru Rama, 49 B 916; Pujamal, AIR 1951 B 244]. The view in Oudh and Rangoon is the same as in Bombay [Ragubir, AIR 1939 O 91, Dulan, AIR 1945 O 102; Nga San, AIR 1924 R 291]. In Allahabad opinion is divided [Bisheshwar, 9 A 645; Wazir, 10 A 58; Dharamdeo, AIR 1916 A 49; Tinny, AIR 1952 A 92; Behari, AIR 1953 A 510 (cases reviewed)] and agreed with the Bombay opinion, while the contrary view is represented in Ram Partab, 6 A 121; Abdur Rashid, AIR 1953 A 315. [s 31.6] Cases outside section 71, Indian Penal Code.— The restriction in section 71 Indian Penal Code, 1860 does not however apply when the two offences are not constituted by the whole and the part, but are independent and separate offences. Thus, there is nothing in section 71 Indian Penal Code, 1860 to restrict the power to pass sentences under section 31 for housebreaking (section 457 Indian Penal Code, 1860) and theft from that house (section 380 Indian Penal Code, 1860) [Kanchan Molla v King-Emperor, AIR 1925 Cal 1015 : 26 Cr LJ 1253 : 41 Cal LJ 563; Baijnath, AIR 1939 SC 76 ; Natesa, AIR 1945 M 330], or for separate sentences under section 148 and section 325 or section 326 Indian Penal Code, 1860 [Ali Akbar, AIR 1929 L 670 : Piru Rama, 49 B 916], or for rioting and hurt [Faqiria, 30 Cr LJ 295], or for forgery and using forged document as genuine [Sriramulu,, 52 M 532], or under sections 147 and 332 Indian Penal Code, 1860 [Rahman, AIR 1926 Lah 521 ], or under sections 149 and 325 Indian Penal Code, 1860 [Deoji, AIR 1926 N 459], or under sections 147 and 325 Indian Penal Code, 1860 [Ramnath, AIR 1921 P 374], or for theft and mischief [Bhawan, 60 B 627; Paw Din, AIR 1933 R 138], or under sections 147 and 323 Indian Penal Code, 1860 [Pesh Md., AIR 1942 P 319], or under section 366 and section 394 Indian Penal Code, 1860 [Chandu, AIR 1921 L 323], or under sections 380 and 457 Indian Penal Code, 1860 [Idris, AIR 1939 P 349], or under sections 146 and 325 Indian Penal Code, 1860 when each person took individual part in the assault [Kapil Mandal v Rabbani Sheikh, AIR 1925 Cal 1039 : 26 Cr LJ 1292 : 41 Cal LJ 421], or under sections 224 and 383 Indian Penal Code, 1860 [Raju, 1932 MWN 547 ], or under sections 147 and 347 Indian Penal Code, 1860 [Batisa, AIR 1932 P 335], or under sections 147 and 323 Indian Penal Code, 1860 [Sahebraj, AIR 1933 A 819; Parameshwar, AIR 1940 O 419], or under sections 323 and 452 Indian Penal Code, 1860 [Tan Aung, AIR 1938 R 144].

Separate sentences under sections 323, 324, 325 Indian Penal Code, 1860 are not bad because the acts charged included within the charge under section 147 [Fatiar, 31 Cal WN 691; Afuan, 2 Dr 311]. If three distinct offences are committed, the offenders are liable to punishment for each offence though all three are committed

Page 6 of 8 [s 31] Sentence in cases of conviction of several offences at one trial.— in the course of the same transaction [Piru, 27 Cr LJ 818]. Separate sentences can be given for conspiracy to commit an offence (section 120-B Indian Penal Code, 1860) and the actual commission of the offence [Mohammed Hussain Umar Kochra v K.S. Dalip Singhji, AIR 1970 SC 45 : 1970 Cr LJ 9 : (1969) 3 SCC 429 (offence under section 167 (81) Sea Customs Act), Bala Huddar, AIR 1933 N 252]. Separate sentences can be given in respect of two dacoities committed by the accused [Nga Po, AIR 1934 R 122].

Separate sentences can be passed for offences under section 37 and section 30 (d) Excise Act [Mi Hlwa, AIR 1934 R 338], or for offences under clauses (a) and (h) of section 43 (1) the Bombay Abkari Act [Deorao, AIR 1935 B 202 (possession of excisable article and manufacture of that article)—Contra : Md. Ali, 55 A 557], or for offences under sections 65(b)(f) and section 66(b) Bombay Prohibition Act [Pujamal, AIR 1951 B 244]. It has been seen (ante last heading) that the Bombay view is different. Where accused is sentenced under section 147 Indian Penal Code, 1860 separate sentence under section 143 of the Indian Penal Code, 1860 would not be necessary [Pooyappa v State of Karnataka, 1981 Cr LJ (NOC) 107 (Kant)]. [s 31.7] Consecutive or concurrent sentences.— The discretion of Court to order sentences to run concurrently has to be exercised along judicial lines and not mechanically. [O. M. Cherian v State of Kerala, AIR 2015 SC 303 : 2014 (4) KLJ 535 ].

Section 31 is controlled by section 64 Indian Penal Code, 1860. Although section 31 does not expressly refer to substantive sentences of imprisonment, it must be read with section 64 Indian Penal Code, 1860 which clearly contemplates that when imprisonment in default of payment of fine is ordered, it shall be in excess of any other imprisonment to which accused may have been sentenced [Mitho, AIR 1942 SC 80 ]. So sentences of imprisonment for default in payment of fine cannot be directed to run concurrently with a substantive sentence of imprisonment or transportation [Konda, AIR 1937 M 406; Venkayya, AIR 1944 M 448; Chanan, AIR 1940 L 388; Haji, AIR 1941 L 209; Punjaji, AIR 1939 B 174; Subrao, AIR 1926 B 62; Mrityunjoy Bose v Sate of Bihar, AIR 1967 Pat 286 : 1967 Cr LJ 1180 : 1966 BLJR 420 ]. Any sentence of imprisonment in default of fine has to be in excess of, and not concurrent with, any other sentence of imprisonment to which the convict may have been sentenced [O.M. Cherian v State of Kerala, AIR 2015 SC 303 : 2014 (12) Scale 636 , (2015) 2 SCC 501 : 2015 Cr LJ 593 (SC)].

Sentence of fine for each of several offences cannot be ordered to run concurrently [Sashinath Sarma v State of Assam, AIR 1967 A & N 111 : 1967 Cr LJ 1597 ].

Normally the substantive punishments of imprisonments shall commence one after the expiration of the other unless the Court directs that said punishments shall run concurrently [Sunil Anandrao Sawant v Government of Maharashtra, 2010 Cr LJ 3579 (3584, 3595) : (2010) 2 Crimes 751 (Bom)].

If during the course of one incident, if there are different victims i.e. acts of the accused directed against different victims, it would not be fair to impose concurrent sentence [Sunil Anandrao Sawant v Government of Maharashtra, 2010 Cr LJ 3579 (3584) : (2010) 2 Crimes 751 (Bom)].

When there is omission to specify how separate sentences are to run, it should be held that they have been ordered to run consecutively [Idris, AIR 1939 P 349]. Where two sentences of imprisonment are ordered to run consecutively it is wholly immaterial which sentence should run first [Tetar Gope v Ganauri Gope, AIR 1968 Pat 287 : 1968 Cr LJ 1108 ].

Two or more sentences can be ordered to run concurrently only when passed at the same trial but not when trials are separate [Dulli; 47 A 59; Batan, AIR 1925 L 334]. In a case, however, order to run concurrently was passed when the accused was convicted of cheating in two separate trials on the same day. It was held not illegal as the two offences could have been tried jointly [Isaf, 12 Cr LJ 24; see Mahadeo, 27 Cr LJ 807].

Page 7 of 8 [s 31] Sentence in cases of conviction of several offences at one trial.— In the subsequent trial, order can be passed that substantive imprisonment will run concurrently with substantive imprisonment in earlier trial [Bansidhar, AIR 1971 Ori 139 ]. [s 31.8] Sub-section (2).— In terms of section 31(2), the Code wherever the Court awards consecutive sentences, it shall not be necessary for the Court to send the offender for trial before a higher Court on the ground that the aggregate punishment for the several offences is in excess of the punishment which it is competent to inflict on conviction of a single offence. This, however, is further subject to the proviso to section 31(2) of the Code. Thus discretion of the Court is, therefore, applicable only in the cases which fall in the category of at one trial of two or more offences [Satnam Singh Puran Singh Gill v State of Maharashtra, 2009 Cr LJ 3781 (3785) (Bom) : 2009 (1) Bom CR (Cri) 549 : 2009 (4) AIR Bom R 534 : 2009 All MR (Cri) 1351].

The opening words “in the case of consecutive sentences” in sub-section (2) of section 31 of the Code make it clear that this Sub-section refers to a case in which “consecutive sentences” are ordered. The provision says that if an aggregate punishment for several offences is found to be in excess of punishment which the Court is competent to inflict on a conviction of single offence, it shall not be necessary for the Court to send the offender for trial before a higher Court. Proviso (a) is added to sub-section (2) of section 31, Code of Criminal Procedure, 1973 to limit the aggregate of sentences-that in no case, the aggregate of consecutive sentences passed against an accused shall exceed fourteen years. “Fourteen years rule” contained in Clause (a) of the proviso to section 31(2) of the Code may not be applicable in relation to sentence of imprisonment for life, since imprisonment for life means the convict will remain in jail till the end of his normal life [O.M. Cherian v State of Kerala, AIR 2015 SC 303 : 2014 (12) Scale 636 , (2015) 2 SCC 501 : 2015 Cr LJ 593 (SC)]. [s 31.9] Sub-section (2), Proviso (a).— If sentences in one trial are directed to run concurrently and the period of such concurrent sentences does not exceed fourteen years, the proviso is not infringed [Nga Mya, AIR 1937 R 391]. Where the accused was sentenced by Additional Sessions Judge to undergo rigorous imprisonment for different offences for 23 years without ordering whether sentences were to run concurrently or consecutively, he could not be detained in prison for more than 14 years [Pritam Singh v State of Punjab, 1981 Cr LJ (NOC) 119 (P&H) : 1981 Chand Cr C 195].

The aggregate of the various sentences imposed in one trial is subject to two kinds of maximum limits:—

(i)

It should not exceed 14 years [Re Daulatram, ILR 3 All 305].

(ii) It cannot exceed twice the maximum imprisonment awardable by the sentencing Court for a single offence. [s 31.10] Sub-section (2), Proviso (b).— The limitation in it does not apply to separate and successive trials of the same person for distinct offences [Daulatia, 3 A 306 FB]. [s 31.11] Sub-section (3)—Sentence.— It is only consecutive sentences and not concurrent sentences which can be aggregated for purposes of appeal [Aziz, 40 C 631; Abdul Jabbar, 25 Cal WN 613]. The test is the aggregate of the sentences of imprisonment imposed or the aggregate of the sentences of fine imposed [Khagendra, 4 DLR (C) 223]. See notes to section 376 post.

Sub-section (3) refers only to sentence of imprisonment and not of fine. When the Magistrate passed two sentences of fine aggregating Rs. 80, an appeal lay [Sidlingappa, AIR 1926 B 416]. Where the accused was sentenced under sections 366 and 376 Indian Penal Code, 1860 and the sentence for each was less than 4

Page 8 of 8 [s 31] Sentence in cases of conviction of several offences at one trial.— years but the arregate exceeded that term, they should be treated as a single sentence for appeal [Hamid, 1930 ALJ 1203 : AIR 1930 A 617]. [s 31.12] Concurrent running.— Imprisonment in default of payment of fine cannot be made to run concurrently [Surja v State, AIR 1963 Raj 202 ].

Where the order of trial Court directing sentences to run consecutively has attained finality the High Court cannot exercise its inherent powers and direct the sentences to run concurrently [Pyari Devi v State of Rajasthan, 2003 Cr LJ 4599 (4600) (Raj) : 2004 (1) Crimes 207 ; O.M. Cherian v State of Kerala, AIR 2015 SC 303 : 2014 (12) Scale 636 , (2015) 2 SCC 501 : 2015 Cr LJ 593 (SC)].

The employee of post office committed theft and was punished for offence under section 381 of the Indian Penal Code, 1860 and section 52 of the Post Office Act, 1898. Apex Court held that the sentence should run concurrently and the same can be ordered by the Appellate Court by invoking section 31 of the Code of Criminal Procedure, 1973, because such orders/ directions are in the nature of consequential on and incidental to the affirmance of conviction. [Nagaraja Rao v Central Bureau of Investigation, AIR 2015 SC (Supp) 811 : 2015 (1) Scale 475 ]. End of Document

[s 32] Mode of conferring powers.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER III POWER OF COURTS

The Code of Criminal Procedure, 1973 CHAPTER III POWER OF COURTS [s 32] Mode of conferring powers.— (1) In conferring powers under this Code, the High Court or the State Government, as the case may be, may, by order, empower persons specially by name or in virtue of their offices or classes of officials generally by their official titles. (2) Every such order shall take effect from the date on which it is communicated to the person so empowered. [s 32.1] Changes.— Section 32 corresponds to old section 39 with addition of certain words since in many places the High Court has been made the authority for conferring powers in judicial matters. [s 32.2] Scope and application of section 32.— (See also section 15 General Clauses Act 1897) section 32 prescribes the mode of conferring powers thereunder. [C.V. Madhava Mannadiar v District Collector and Addl. District Magistrate, Palghat, AIR 1970 Ker 50 : 1970 Cr LJ 344 : ILR (1969) 1 Ker 371]. Section 32(1) compared and distinguished from section 15 General Clauses Act [Srirambhadrayya, AIR 1960 AP 282 ]. Special empowering of persons (i.e., of Magistrates or judges) shall be by name or in virtue of their offices and general empowering of the whole class of official (who would also be Magistrates or Judges) shall be by their official titles. Where by a notification the Government empowered all second class Magistrates to try cases under the Opium Act—Held that it was a general empowering and the second class Magistrate had no jurisdiction to try the case. Especially does not refer to extra or special powers [Md Kasim, AIR 1915 M 1159 : 16 Cr LJ 268; Polubha, AIR 1956 Sau 73 (cases reviewed)—Contra : Judhabir, AIR 1953 As 35 : 1953 Cr LJ 395 ; Vijayan, AIR 1953 T-C 402]. Especially refers to the empowering of a particular official by name or virtue of his office [Alaga, 24 Cr LJ 846; Palanisamy, AIR 1957 M 351; P.M. Deshpande v Ferro Alloys Corp, AIR 1964 AP 471 : 1964 (2) Cr LJ 378 : 1963 (2) Andh WR 410 : 1964 (1) LLJ 613 : 1963 Mad LJ (Cri) 586]. If first class power is conferred during trial, sentence under that power can be passed [Pershad, 7 A 414 FB].

Application for withdrawal of prosecution under section 32 can be filed at any time during the course of trial of the case but it must be moved before the order and judgment is pronounced [State of Assam and another v Niranjan Ghosh, 1995 Cr LJ 1801 (Gauhati)].

“Communicate” is not synonymous with “publish” which means to make public. Notification dated 31 January 1955, investing first class power was sent to the Magistrate on 8 February 1955 and gazetted on 18 February 1955. Order passed on 22 January 1955 as such Magistrate was set aside [Gurbachan, AIR 1956 Pu 254 ]. [s 32.3] General empowerment.—

Page 2 of 2 [s 32] Mode of conferring powers.— See CV Madhava Mannadiar v District Collector and Addl. District Magistrate, Palghat, AIR 1970 Ker 50 : 1970 Cr LJ 344 : ILR (1969) 1 Ker 371 . [s 32.4] Special empowerment.— See Emperor v Savalram, AIR 1946 Bom 156 .

Empowerment during pendency of trial also takes effect immediately on communication [Gurbachan, AIR 1956 Punj 254 ; Dehnu, AIR 1967 HP 52 ]. End of Document

[s 33] Powers of Officers appointed.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER III POWER OF COURTS

The Code of Criminal Procedure, 1973 CHAPTER III POWER OF COURTS [s 33] Powers of Officers appointed.— Whenever any person holding an office in the service of Government who has been invested by the High Court or the State Government with any powers under this Code throughout any local area is appointed to an equal or higher office of the same nature, within a like local area under the same State Government, he shall, unless the High Court or the State Government, as the case may be, otherwise directs, or has otherwise directed, exercise the same powers in the local area in which he is so appointed. [s 33.1] Changes.— Section 33 corresponds to old section 40. However, the High Court has also now been made authority for conferring certain powers. [s 33.2] Scope and application of section 33.— “Appointed” was substituted for transferred in 1923 to obviate the necessity of reinvesting officers with powers when they return from leave. Appointment includes transfer.

Section 33 contemplates that a person invested with power may have two sets of powers. A subordinate Judge duly invested with the powers of a first class Magistrate is not divested of his magisterial power on being invested with the higher power of an Additional District Judge unless the magisterial power is withdrawn under section 34 [Sujaniram, AIR 1956 N 67]. A Magistrate on transfer to another district cannot after making over charge, pass judgment in a case which he had already tried [Anand, 3 A 563]. Cases on the file of Magistrate relieved of the charge of a sub-division do not necessarily pass automatically to his successor merely because the former had been transferred to another local area in the same district. Section 14 does not lay down any such automatic rule. To hold otherwise would be to overlook section 33 [Chhoti, 42 A 649, 654]. When a Magistrate trying a case in part is transferred to another place in the same district, he need not try it de novo when the case itself is transferred to him [Karuppana, 22 Mad 47].

A power conferred on a person comes to an end, if he is transferred to a non-judicial post [Karimpur, AIR 1933 Sind 398 ]. But, power is not lost by disuse. [Amulya, (1963) Cr LJ 721 ].

A Magistrate reappointed after retirement should be invested with powers afresh [Md. Haji, AIR 1923 M 598] but not when he joins any station after leave [Pritam, 31 Cr LJ 1051], or reverts from foreign service [Ramaratnam, AIR 1944 M 302].

End of Document

[s 34] Withdrawal of powers.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER III POWER OF COURTS

The Code of Criminal Procedure, 1973 CHAPTER III POWER OF COURTS [s 34] Withdrawal of powers.— (1) The High Court or the State Government, as the case may be, may withdraw all or any of the powers conferred by it under this Code on any person or by any officer subordinate to it. (2) Any powers conferred by the Chief Judicial Magistrate or by the District Magistrate may be withdrawn by the respective Magistrate by whom such powers were conferred. [s 34.1] Changes.— Section 34 corresponds to old section 41 with minor changes as the High Court and the Chief Judicial Magistrate have been empowered to confer powers consequent on the separation of the judiciary from the executive. [s 34.2] Scope and application of section 34.— Powers may be withdrawn expressly or by implication [Pursooram, 2 C 117]. When the power is withdrawn it continues until the officer is informed of it, or it is notified in the Gazette [Sudhakar, AIR 1927 A 267]. The powers which accrue to the different categories of magistrates directly from the provisions of the Code cannot be withdrawn. Only the additional powers which may be conferred by the High Court or the State Government or by the Chief Judicial Magistrate or Chief Metropolitan Magistrate or District Magistrate, as the case may be, as provided in particular section of the Code, can be withdrawn. Powers conferred by the State Government may be withdrawn by the State Government alone while powers conferred by the District Magistrate may be withdrawn by the District Magistrate as also by the State Government Similarly powers conferred by the High Court may be withdrawn by the High Court alone while powers conferred by the Chief Judicial Magistrate may be withdrawn by the Chief Judicial Magistrate and also by the High Court. End of Document

[s 35] Powers of Judges and Magistrates exercisable by their successorsin-office.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER III POWER OF COURTS

The Code of Criminal Procedure, 1973 CHAPTER III POWER OF COURTS [s 35] Powers of Judges and Magistrates exercisable by their successors-inoffice.— (1) Subject to the other provisions of this Code, the powers and duties of a Judge or Magistrate may be exercised or performed by his successor-in-office. (2) When there is any doubt as to who is the successor-in-office of any Additional or Assistant Sessions Judge, the Sessions Judge shall determine by order in writing the Judge who shall, for the purposes of this Code or of any proceedings or order thereunder, be deemed to be the successor-in-office of such Additional or Assistant Sessions Judge. (3) When there is any doubt as to who is the successor-in-office of any Magistrate, the Chief Judicial Magistrate, or the District Magistrate, as the case may be, shall determine by order in writing the Magistrate who shall, for the purposes of this Code or of any proceedings or order thereunder, be deemed to be the successor-in-office of such Magistrate. [s 35.1] Changes.— Section 35 corresponds to old section 559 with old sub-sections (3) and (2) renumbered as sub-sections (2) and (3) respectively.

[It may be noted that sections 36 and 37 and consequently section 38 also of the old Code have been done away with in the new Code as unnecessary to be retained, as a consequence of the third and fourth Schedules of the old Code being abolished considered unnecessary duplication in view of the fact that the nature and extent of ordinary powers and additional powers of the Magistrate have in any case to be ascertained from the particular sections of the Code and the orders of appropriate authority empowering the Magistrates either individually or as a class]. [s 35.2] Scope and application of section 35.— In order to ensure continuity it is provided that the powers of Judges and Magistrates are exercisable by their successors in office, e.g., a complaint under section 476 (now section 340) or section 195 in relation to a proceeding before a Magistrate or Judge who has left, can be made by his successor in office [Ajaib Singh v Joginder Singh, AIR 1968 SC 1422 : 1969 Cr LJ 4 ; Behram, AIR 1926 L 305 : 25 Cr LJ 776 : Ijjatullah, 32 Cr LJ 842; Ram Ajodhya, AIR 1927 P 327; Baldeo, AIR 1924 A 770 : 25 Cr LJ 1277; Behari, AIR 1940 L 292 : 41 Cr LJ 843]. To determine whether one is a successor-in-office, it is to be seen whether he can be considered to be a presiding officer of the Court over which his predecessor exercised jurisdiction [Ayub, AIR 1962 A 132]. Subject to the other provisions of this Code cannot be interpreted to debar the successor in office from dealing with the matter of costs under section 148(3) [Chandrama Rai v Harbans Rai, AIR 1965 Pat 21 : 1965 Cr LJ 65 : 1965 BLJR 198 ].

Page 2 of 2 [s 35] Powers of Judges and Magistrates exercisable by their successors-in-office.— As the section is subject to the other provisions of the Code, whether the powers under section 192 are intended to be exercisable by a successor in office [Ramkrishna, 42 Cal WN 246, 251]. A later case has held that a sub-divisional officer can by virtue of section 35(1) transfer to a Magistrate a case of which cognizance was taken by his predecessor [Bholanath, 58 Cal WN 11 : AIR 1953 C 777]. Quaere: Whether the successor in office of a Special Magistrate under an Ordinance can be determined by an order under this section [Jadabendra, 40 Cal WN 604]. Power is not conferred upon District Magistrate to declare one Magistrate successor of another. He has been given only the power to resolve a doubt about the rights of a Magistrate [Ramzani, AIR 1960 A 350]. Section 35 applies to all Magistrates whose Courts are permanent or not. [s 35.3] Sub-section (3)—Transfer.— Sub-section (3) does not control sub-section (1), and a Sub-divisional Judicial Magistrate can transfer a case though cognizance of an offence was taken by his predecessor [Kamalkrishna Dey v The State, 1977 Cr LJ 1492 (Cal) : 81 Cal WN 976]. Sub-section (3) has not the effect of limiting sub-section (1). It does not mean that until a successor is determined under sub-section (3) there is no successor for the purposes of sub-section (1) [Ajaib Singh v Joginder Singh, AIR 1968 SC 1422 : 1969 Cr LJ 4 ]. [s 35.4] Permanent Courts.— Section 35 applies to permanent as well as non-permanent Courts [Ajaib Singh v Joginder, AIR 1968 SC 1422 : 1969 Cr LJ 4 ]. [s 35.5] Issue of process.— The Delhi High Court seems to have relied on section 35 for holding that a successor-in-office of a Magistrate who has taken cognizance and examined a witness can issue process [M.L. Gulati v J.L. Birmani, (1986) Cr LJ 770 : (1985) 28 DLT 483 : 1986 (1) Chand LR (Cri) 569 (Del) (DB)]. The same conclusion can be reached by relying on section 326. It may be noted that a proceeding after taking cognizance becomes an “inquiry” [Shambhu Nath Singh v State of Bihar, (1987) Cr LJ 510 : 1987 (2) Crimes 849 : 1986 Pat LJR 652 : 1986 BLJR 655 (Pat)]. End of Document

[s 36] Powers of superior officers of police.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER IV > A.—POWERS OF SUPERIOR OFFICERS OF POLICE

The Code of Criminal Procedure, 1973 CHAPTER IV A.—POWERS OF SUPERIOR OFFICERS OF POLICE [s 36] Powers of superior officers of police.— Police Officers superior in rank to an officer in charge of a police station may exercise the same powers, throughout the local area to which they are appointed, as may be exercised by such officer within the limits of his station. [s 36.1] Changes.— Section 36 corresponds to old section 551, verbatim.

Under Section 36 of the Code of Criminal Procedure, 1973, the higher police officials have got same powers as available to the officer-in-charge of a police station under them but the power is available only with respect to supervising the investigation or participating into the investigation into to some extent but under section 173(2), Code of Criminal Procedure, 1973 the final view over the investigation of a case with regard to filing chargesheet or final form has to be taken by the concerned officer-in-charge only and he only has the authority to file the charge-sheet in the case [Lalu Singh v State of Bihar, 2010 Cr LJ 1602 (1604) (Pat)]. [s 36.2] Scope and application of section 36.— In section 36, the word “rank” denotes hierarchy within the police organization. [State of Bihar v J.A.C. Saldanha, AIR 1980 SC 326 : (1980) Cr LJ 98 (SC) : (1980) 1 SCC 554; Ram Autar Jalan v State of Bihar, (1986) Cr LJ 51 : 1985 Pat LJR 1142 : 1985 BLJR 650 : 1986 (1) Cr LC 401, para 13 (Pat); Kapur R.P. v Sardar Pratap Singh Kairon, AIR 1961 SC 1117 : 1961 (2) Cr LJ 161]. But an officer not formally appointed to the police organization cannot avail of section 36 [Baidyanath Patnaik v State, (1969) Cr LJ 339 (Ori) : 34 Cut LT 811].

When section 36 of the Code uses the words “in rank”, it should be given a purposive construction. Although a plain reading of the provision appears to be containing three ingredients, namely, (i) the investigation must be carried out by an Officer-in-charge; (ii) which may be supervised by an Officer superior in rank; and (iii) in respect of a local area to which they are appointed, but in the context of the power of the State vis a vis the provisions of Act, the same, deserves a wider application [Nirmal Singh Kahlon v State of Punjab, AIR 2009 SC 984 : (2009) 1 SCC 441].

Page 2 of 3 [s 36] Powers of superior officers of police.—

Section 36 of the Code of Criminal Procedure, 1973 empowers a police officer, superior in rank to an officer in charge of a police station, to exercise the same powers throughout the local area to which they are appointed, as may be exercised by such officer within the limits of his station. It was, therefore, permissible for the higher authority to carry out or direct further investigation in the matter [State of AP v S. Peter, AIR 2008 SC 1052 : (2008) 2 SCC 383].

“May” does not mean “must” [Mathuranath, AIR 1932 C 850; Chittaranjan, AIR 1963 C 191]. The jurisdiction of Inspector of Police in the CID extends throughout UP [Textile Traders, AIR 1959 A 337; see Nilkanth, 35 M 247, 271]. Superior police officers may take action on FIR sent to them and start investigation [Kapur R.P. v Sardar Pratap Singh Kairon, AIR 1961 SC 1117 : 1961 (2) Cr LJ 161 : 1961, (2) SCR 143, ante : State of Bihar v J.A.C. Saldanna, AIR 1980 SC 326 : 1980 Cr LJ 98 (SC).] “Special Police Officer” in Suppression of Immoral Traffic in Women and Girls Act, 1956, can exercise his powers throughout the local area to which he is appointed [Ram Singh, AIR 1962 SC 63 : 1962, (2) SCR 694]. Inspector-General Vigilance being an officer superior in rank to an officer in charge of a police station can take over investigation of cognizable offence throughout the State [State of Bihar v J.A.C. Saldanna, AIR 1980 SC 326 : (1980) 1 SCC 554 : (1980) Cr LJ 98 (SC)].

The State police chief, Director General of Police, appointed the superior police officer to investigate case irrespective of limits of local jurisdiction of such officer. The Apex Court while reversing the orders of High Court held that the state police chief can issue such direction. [State of Kerala v P. B. Sourabhan, AIR 2016 SC 1194 : 2016 (3) SCJ 258].

Supervision note of the Deputy Superintendent of Police cannot be considered as investigation under section 36, Code of Criminal Procedure, 1973, submission of second charge-sheet as well as cognizance in any view cannot be taken as legal and it is bad [Manilal Keshri v State of Bihar, 2006 Cr LJ 3981 (3983) (Pat) : 2006 (4) Pat LJR 32].

An application for further investigation under section 178(3) can be made by an officer superior to the officer in charge of the police station, by virtue of section 36 [Ram Autar Jalan v State of Bihar, (1986) Cr LJ 51 : 1985 Pat LJR 1142 : 1985 BLJR 650 : 1986 (1) Cal LC 401 (Pat)].

When a Magistrate orders investigation under section 156(3) he can only direct an officer-in-charge of a police station to conduct such investigation and not a superior police officer, though such an officer can exercise such powers by virtue of section 36 of the Code by taking over the investigation from such officer-in-charge [C.B.I. v State, AIR 2001 SC 668 : 2001 Cr LJ 968 : (2001) 3 SCC 333 : 2001 (1) Crimes 191].

In the instant case, it was pleaded that the charge-sheet filed by the Inspector, CID, should be quashed due to reason that the Inspector had no authority to file such charge-sheet. Held, the case would not be allowed to be thwarted only due to such technicalities. The opinion of the officer-in-charge had necessarily to be placed before the concerned Chief Judicial Magistrate who would take his independent view on consideration of the materials for the purpose of deciding whether a prima facie case against the petitioner was made out or not. That exercise had already been done and the Chief Judicial Magistrate had taken a final view. No practical purpose would be served in sending the matter back to the officer-in-charge [Lalu Singh v State of Bihar, 2010 Cr LJ 1602 (1605) (Pat)].

Superior rank officers of police including SHO and S.P. are required to involve themselves in supervising investigations to ensure the integrity and quality of it. Non use of such powers had created free and unfettered situation to the I.O. to conduct the investigation in a causal and cavalier manner and to dishonestly manipulate the final report submitted under section 173, Code of Criminal Procedure, 1973. Such step was deprecated and

Page 3 of 3 [s 36] Powers of superior officers of police.— corrective steps were suggested [Babu alias Thirupathi Babu v State, 2007 Cr LJ 3802 (Kant) : 2007 (5) AIR Kant R 76].

Section 36 does, in fact, authorise Superintendent of Police to endorse the warrant of arrest pending in favour of any other Police Officer constituting Special Police Party. The only document issued by the Superintendent of Police makes no reference to any warrant of arrest. Held, there is a clear violation of the procedure established by law under section 74 in arresting the petitioner [Kura Rajaiah v Government of AP, 2007 Cr LJ 2031 (2040) (AP) : 2007 (1) Andh LD (Cr) 845].

Carrying out of a final investigation after filing charge-sheet is a statutory right of the police [State of AP v A.S. Peter, AIR 2008 SC 1052 : (2008) 2 SCC 383 : (2008) 1 SCC (Cri) 427].

A superior officer can pass order for further investigation [Ibid.].

In serious offences like murders, senior police officers like Superintendent of Police should be involved in the investigation and Police Manual should be amended suitably [Yusuf Bachakhan v State of Karnataka, 2008 Cr LJ (NOC) 1292 : 2008 (5) AIR Kar R 389 (Kant); Anant Tukaram Nalawade v Smt. Latika Anant Nalawade, 2008 Cr LJ 1291 (Bom) : 2008 (6) Mah LJ 465 : 2008 All MR (Cri) 2403].

In view of section 36 of the Code, police officers superior in rank to an officer-in-charge of the police station throughout the local area have been conferred with the authority to exercise the same power as that of officerin-charge of police station. rule 431(b) of the Bihar Police Manual makes the Inspectors and superior officers of the C.I.D. superior in rank to an officer-in-charge of a police station and they have been conferred with the same powers as may be exercised by an officer-in-charge of a police station. It was held that the Inspector of C.I.D. can exercise the power of an officer-in-charge of a police station and once it is held so, he is competent to submit the report as contemplated under section 173 of the Code [State of Bihar v Lalu Singh, (2014) 1 SCC 663 : 2013 (4) Crimes 438 (441) (SC) reversing Lalu Singh v State of Bihar, 2010 Cr LJ 1602 (Pat)].

End of Document

[s 37] Public when to assist Magistrates and police.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER IV > B.—AID TO THE MAGISTRATES AND THE POLICE

The Code of Criminal Procedure, 1973 CHAPTER IV B.—AID TO THE MAGISTRATES AND THE POLICE [s 37] Public when to assist Magistrates and police.— Every person is bound to assist a Magistrate or police officer reasonably demanding his aid— (a) in the taking or preventing the escape of any other person whom such Magistrate or police officer is authorised to arrest; or (b) in the prevention or suppression of a breach of the peace; or (c) in the prevention of any injury attempted to be committed to any railway, canal, telegraph or public property. [s 37.1] Changes.— Section 37 corresponds to old section 42 with the following changes:—

(i)

At the end of first para the words whether within or without the Presidency-towns have been omitted.

(ii) Old clause (b) has been divided into clauses (b) and (c). [s 37.2] Scope and application of section 37.— Assistance must have some direct personal relation to the execution of the duty by the public officer. Refusal to sign search list is not omission to give assistance [Ramaya, 26 M 419 FB]. The aid that can be called for is personal assistance and not supply of men [Ramiah, Weir II 37]. The assistance required must be only of the kind specified in the section and not order e.g., order to find a clue to theft [Bakshi, 3 A 201], or to assist in burying a person [6 CPLR 45], or to join the police in tracing unknown offenders to places not known or to collect evidence, etc. The demand must be reasonable. It is not intended that the public should be called upon to do duties for which the police is paid [Joti, 42 A 314, 316]. Wholesale delegation by the police of their duties to a private individual and authorisation to arrest an offender is illegal. There is a sharp distinction between section 37 and section 43. Under section 43 a private person may himself arrest; under section 37 he must assist a police officer to arrest, but the police must be present before he can demand such aid. The wholesale delegation by the police of their powers to a private person was never intended [Hafiz Murid, AIR 1937 SC 254 : 38 Cr LJ 1101]. So under section 37 the police cannot legally direct private individuals to arrest an accused [Amarendra, AIR 1955 P 106]. Arrest by private person (see section 43).

Page 2 of 2 [s 37] Public when to assist Magistrates and police.— Omission to assist is punishable (section 187 Indian Penal Code, 1860). Arrest by police officers (sections 41, 42, 55 & 151). End of Document

[s 38] Aid to person, other than police officer, executing warrant.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER IV > B.—AID TO THE MAGISTRATES AND THE POLICE

The Code of Criminal Procedure, 1973 CHAPTER IV B.—AID TO THE MAGISTRATES AND THE POLICE [s 38] Aid to person, other than police officer, executing warrant.— When a warrant is directed to a person other than a police officer, any other person may aid in the execution of such warrant, if the person to whom the warrant is directed be near at hand and acting in the execution of the warrant. [s 38.1] Changes.— Section 38 corresponds to old section 43, verbatim. [s 38.2] Scope and application of section 38.— The section is confined to a private person who for the time being is discharging the function of a police officer. He may take the aid of other persons in effecting arrest [Nazir, AIR 1951 A 3 FB]. Persons acting under the section should, if required, show their authority (see section 99 Indian Penal Code, 1860, Explanation 2). Aiding under this section is not obligatory as in the last. Warrants to persons other than the police (sections 72 and 73).

End of Document

[s 39] Public to give information of certain offences.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER IV > B.—AID TO THE MAGISTRATES AND THE POLICE

The Code of Criminal Procedure, 1973 CHAPTER IV B.—AID TO THE MAGISTRATES AND THE POLICE [s 39] Public to give information of certain offences.— (1) Every person, aware of the commission of, or of the intention of any other person to commit, any offence punishable under any of the following sections of the Indian Penal Code (45 of 1860), namely— (i)

Sections 121 to 126, both inclusive, and Section 130 (that is to say, offences against the State specified in chapter VI of the said Code);

(ii) Sections 143, 144, 145, 147 and 148 (that is to say, offences against the public tranquillity specified in chapter VIII of the said Code); (iii) Sections 161 to 165-A, both inclusive (that is to say, offences relating to illegal gratification); (iv) Sections 272 to 278, both inclusive (that is to say, offences relating to adulteration of food and drugs, etc); (v) Sections 302, 303 and 304 (that is to say, offences affecting life); 1[(v-a)

Section 364-A (that is to say, offence relating to kidnapping for ransom, etc.);]

(vi) Section 382 (that is to say, offence of theft after preparation made for causing death, hurt or restraint in order to the committing of the theft); (vii) Sections 392 to 399, both inclusive, and Section 402 (that is to say, offences of robbery and dacoity); (viii) Section 409 (that is to say, offence relating to criminal breach of trust by public servant, etc.); (ix) Sections 431 to 439, both inclusive (that is to say, offences of mischief against property); (x) Sections 449 and 450 (that is to say, offence of house-trespass); (xi) Sections 456 to 460, both inclusive (that is to say, offences of lurking house-trespass); and (xii) Sections 489-A to 489-E, both inclusive (that is to say, offences relating to currency notes and bank notes), shall, in the absence of any reasonable excuse, the burden of proving which excuse shall lie

Page 2 of 3 [s 39] Public to give information of certain offences.— upon the person so aware, forthwith give information to the nearest Magistrate or police officer of such commission or intention. (2) For the purposes of this section, the term “offence” includes any act committed at any place out of India which would constitute an offence if committed in India. [s 39.1] Changes.— Section 39 corresponds to old section 44 with the following changes :

(1) In sub-section (1) after “Every person” the words “whether within or without the Presidency-towns” have been omitted. (2) A brief description of the various offences has been inserted in addition to the references to the sections of the Indian Penal Code and arranged into clauses (i) to (xii). (3) Clauses (iii), (iv), (vii), (ix), (xii) and other words have been newly added. (4) Clause (va) has been inserted by Act No. 42 of 1993, section 3 (w.e.f. 22 May 1993). [s 39.2] Scope and application of section 39.— Section 39, Code of Criminal Procedure, 1973 is only a procedural section. Violation of which is not made punishable under any statute but, if a person who has knowledge or reasonable belief that person is the offender can be treated as a person who is aware of the commission of the offence and even if he is not punishable for violating section 39, Code of Criminal Procedure, 1973 when he harbours or conceals such an offender, he must certainly be guilty for offence under section 212 [Sujith v State of Kerala, 2008 Cr LJ 824 (831) (Ker— DB) : 2007 (4) Ker LT 987 (Ker)]. Section 39 makes it obligatory on every person to give information, to the authorities of the commission of, or of the intention to commit, the offences specified in it. Offences committed out of India are included. Omission to do so is punishable (sections 118, 176 and 202 of the Indian Penal Code, 1860). It proceeds on the principle that it is the duty of law-abiding citizens to report to the authorities any crime, which they know has been committed. Failure to do is an offence. It corresponds to what is known in English law as misprision of felony or crime, that is, the concealment from the authorities of the one’s knowledge of commission of an offence or crime.

“Any person” would not include the main offender himself [Mahadeo, AIR 1941 P 550; see, however, Chinna, 32 Cr LJ 263]. The offence of murder is one of such crimes. Failure to give information is punishable under section 202 Indian Penal Code, 1860 [Ram Balak Singh v The State, AIR 1964 Pat 62 : 1964 (1) Cr LJ 214]. When information has once reached the police from others or from any source, the duty ceases [Gopal, 20 C 316].

The word “Misprendere” means, “to make a mistake”. “Misprision of felony” was “failure to report a felony” [Sykes v DPP, (1962) AC 528 (House of Lords)]. By Statute—”Section 5(1), Criminal Law Act 1967 the offence has been abolished. However, misprision of treason remains as a common law offence. It is committed when a person knows, or has reasonable cause to believe that another has committed treason and fails within a reasonable time to inform an appropriate authority [Curzon’s, Dictionary of English Law 4th Edn 1st Indian Reprint (1993)].

Every citizen who has knowledge of the commission of a cognizable offence has the duty to lay the information before the police under section 39 Code of Criminal Procedure, 1973 [State of Gujarat v Anirudhsing, (1997) 6 SCC 514 : AIR 1997 SC 2780]. There is no statutory obligation on a citizen to inform the police about other offences which are not mentioned in section 39 of the Code of Criminal Procedure, 1973 [Satyasaheel Nandlal Naik (Dr.) v State of Maharashtra, 1996 Cr LJ 1463 at p 1465 (Bom) : 1996 (2) Mah LJ 633 : 1996 (3) Cur Cr R 222; Akbaruddin Owaisi v Government of Andhra Pradesh, 2013 (6) All LT 101: 2014 Cr LJ 2199 (AP)].

Section 39 of the Code casts a statutory duty on every person to inform about commission of certain offences which includes offences covered by sections 121 to 126, 302, 64A, 382, 392, etc., of the Indian Penal Code. It

Page 3 of 3 [s 39] Public to give information of certain offences.— would be incongruous to suggest that though it is the duty of every citizen to inform about commission of an offence, but it is not obligatory on the officer-in-charge of a Police Station to register the report. The word “shall” occurring in section 39 of the Code has to be given the same meaning as the word “shall” occurring in section 154(1) of the Code [Lalita Kumari v Govt of UP, AIR 2014 SC 187 : 2014 Cr LJ 470 (SC)].

The sister who saw the killing of her sister by the lathies by her husband and who refused to testify was not allowed to be joined as co-accused. The Court held that she had constitutional right to remain silent [Rakesh Kumar Singh v State of Assam, 2003 Cr LJ 3206 : 2003 (2) Gau LR 529 : 2003 (2) DMC 447 : 2003 (2) Gau LT 126 (Gau)].

1

Inserted by the Criminal Law (Amendment) Act, 1993 (42 of 1993), Section 3 (w.e.f. 22 May 1993).

End of Document

[s 40] Duty of officers employed in connection with the affairs of a village to make certain report.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER IV > B.—AID TO THE MAGISTRATES AND THE POLICE

The Code of Criminal Procedure, 1973 CHAPTER IV B.—AID TO THE MAGISTRATES AND THE POLICE [s 40] Duty of officers employed in connection with the affairs of a village to make certain report.— (1) Every officer employed in connection with the affairs of a village and every person residing in a village shall forthwith communicate to the nearest Magistrate or to the officer in charge of the nearest police station, whichever is nearer, any information which he may possess respecting— (a) the permanent or temporary residence of any notorious receiver or vendor of stolen property in or near such village; (b) the resort to any place within, or the passage through, such village of any person whom he knows, or reasonably suspects, to be a thug, robber, escaped convict or proclaimed offender; (c) the commission of, or intention to commit, in or near such village any non-bailable offence or any offence punishable under Section 143, Section 144, Section 145, Section 147, or Section 148 of the Indian Penal Code (45 of 1860); (d) the occurrence in or near such village of any sudden or unnatural death or of any death under suspicious circumstances or the discovery in or near such village of any corpse or part of a corpse, in circumstances which lead to a reasonable suspicion that such a death has occurred or the disappearance from such village of any person in circumstances which lead to a reasonable suspicion that a non-bailable offence has been committed in respect of such person; (e) the commission of, or intention to commit, at any place out of India near such village any act which, if committed in India, would be an offence punishable under any of the following sections of the Indian Penal Code (45 of 1860), namely, 231 to 238 (both inclusive), 302, 304, 382, 392 to 399 (both inclusive), 402, 435, 436, 449, 450, 457 to 460 (both inclusive), 489-A, 489-B, 489-C and 489-D; (f)

any matter likely to affect the maintenance of order or the prevention of crime or the safety of person or property respecting which the District Magistrate, by general or special order made with the previous sanction of the State Government, has directed him to communicate information.

(2) In this section— (i)

“village” includes village-lands;

(ii) the expression “proclaimed offender” includes any person proclaimed as an offender by any Court or authority in any territory in India to which this Code does not extend, in respect of any act which

Page 2 of 3 [s 40] Duty of officers employed in connection with the affairs of a village to make certain report.— if committed in the territories to which this Code extends, would be an offence punishable under any of the following sections of the Indian Penal Code (45 of 1860), namely, 302, 304, 382, 392 to 399 (both inclusive), 402, 435, 436, 449, 450 and 457 to 460 (both inclusive); (iii) the words “officer employed in connection with the affairs of the village” means a member of the panchayat of the village and includes the headman and every officer or other person appointed to perform any function connected with the administration of the village. [s 40.1] Changes.— Sub-sections (1) and (2) correspond to sub-sections (1) and (2) of old section 45 with the following changes :

(1) In sub-section (1) at the beginning certain words have been substituted for certain words for simplification and in clause (a) the words “or near such” have been substituted for “any”. (2) In sub-section 2(ii) the words “in any territory in India to which this Code does not extend” and “the territories to which this Code extends” have been substituted for the words “established or continued by the Central Government and India respectively” and the words “an offence” have been newly added. (3) In sub-section (2), clause (iii) have been newly added. [s 40.2] Scope and application of section 40.— As Thanas (Police Station) are at some distance from most villages the section casts a duty on every officer employed in connection with the affairs of a village and every person residing in a village to give information in regard to the matters and offences specified in the section to enable the police to start prompt investigation. The duty is peremptory as the information is to be sent forthwith. Omission to give information is punishable (section 176 Indian Penal Code, 1860).

This section is not punitive. Not rumours but the information which the informant may possess to his own knowledge is fit to be communicated [Lachmi, AIR 1924 P 691; Bhup, 1900 AWN 207].

When information has been given by some person or the police have got it from other sources, there is no further obligation upon the headman or any one to report again [Rampal, 53 B 184; Sashi, 4 C 623; Gopal, 20 C 316; Pandya, 7 M 436]. [s 40.3] Revisional power.— Revision against order framing of charge is not maintainable [Munna Devi v State of Rajasthan, AIR 2002 SC 107 : 2002 Cr LJ 225 : (2001) 9 SCC 631 : 2002 (1) Crimes 145 (SC)]. [s 40.4] Clause (a).— What constitutes habitual receiver of stolen goods [Baburam, 19 C 190]. [s 40.5] Clause (b).— Bringing of suspected robber under arrest and releasing him there, is not “resorting to” or “passage” [Malik, 1887 PR 31 Cr]. An offender who has been proclaimed though not strictly under section 82 comes within this section [Ramsarup, AIR 1938 O 80]. [s 40.6] Clause (c).— Does not apply, if the offence is bailable [Sivan, 32 M 258]. [s 40.7] Clause (d).— Finding of deadbody [Matuki, 11 C 619]. Death by fall from a tree when unnatural [Domar, AIR 1922 N 87]. [s 40.8] Section 40(2) iii.— There does not exist any embargo for an accused person to make an extra-judicial confession before a village Administrative officer. The extra-judicial confession by the appellant before the village administrative officer is

Page 3 of 3 [s 40] Duty of officers employed in connection with the affairs of a village to make certain report.— not inadmissible [Siva Kumar v State, 2006 Cr LJ 536 (542) (SC) : (2006) 1 SCC 714 : AIR 2006 SC 653 : 2006 (1) Crimes 158]. End of Document

[s 41] When police may arrest without warrant.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER V ARREST OF PERSONS

The Code of Criminal Procedure, 1973 CHAPTER V ARREST OF PERSONS [s 41] When police may arrest without warrant.— (1) Any police officer may without an order from a Magistrate and without a warrant, arrest any person— 1[(a)

who commits, in the presence of a police officer, a cognizable offence;

(b) against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years whether with or without fine, if the following conditions are satisfied, namely:— (i)

the police officer has reason to believe on the basis of such complaint, information, or suspicion that such person has committed the said offence;

(ii) the police officer is satisfied that such arrest is necessary— (a) to prevent such person from committing any further offence; or (b) for proper investigation of the offence; or (c) to prevent such person from causing the evidence of the offence to disappear or tampering with the such evidence in any manner; or (d) to prevent such person from making any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to the police officer; or (e) as unless such person is arrested, his presence in the Court whenever required cannot be ensured; and the police officer shall record while making such arrest, his reasons in writing. 2[Provided

that a police officer shall, in all cases where the arrest of a person is not required under the provisions of this sub-section, record the reasons in writing for not making the arrest.]. (ba) against whom credible information has been received that he has committed a cognizable offence punishable with imprisonment for a term which may extend to more than seven years whether with or without fine or with death sentence and the police officer has reason to believe on the basis of that information that such person has committed the said offence;] (c) who has been proclaimed as an offender either under this Code or by order of the State Government; or

Page 2 of 15 [s 41] When police may arrest without warrant.— (d) in whose possession anything is found which may reasonably be suspected to be stolen property and who may reasonably be suspected of having committed an offence with reference to such thing; or (e) who obstructs a police officer while in the execution of his duty, or who has escaped, or attempts to escape, from lawful custody; or (f)

who is reasonably suspected of being a deserter from any of the Armed Forces of the Union; or

(g) who has been concerned in, or against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists, of his having been concerned in, any act committed at any place out of India which, if committed in India, would have been punishable as an offence, and for which he is, under any law relating to extradition, or otherwise, liable to be apprehended or detained in custody in India; or (h) who, being a released convict, commits a breach of any rule made under sub-section (5) of Section 356; or (i)

for whose arrest any requisition, whether written or oral, has been received from another police officer, provided that the requisition specifies the person to be arrested and the offence or other cause for which the arrest is to be made and it appears therefrom that the person might lawfully be arrested without a warrant by the officer who issued the requisition.

3[(2) Subject to the provisions of Section 42, no person concerned in a non-cognizable offence or against whom a complaint has been made or credible information has been received or reasonable suspicion exists of his having so concerned, shall be arrested except under a warrant or order of a Magistrate.] [s 41.1] Changes.— (1) Sub-section (1) corresponds to old section 54(1) with the following changes :

(i)

The clauses have been renumbered (a) to (i) in places of first to ninthly.

(ii) In clause (f) the words “any of the Armed Forces of the Union” have been substituted for the words “the Indian Army, Navy or Air Force” so that the provisions now apply to the other Armed Forces of the Union besides the Indian Army, Navy or Air Force. (iii) In clause (i) the words “whether written or oral” have been added to set at rest the controversy as to whether the requisition received from the other police officer must be in writing before it can be acted upon.

(2) Sub-section (2) prior to its substitution vide the CrPC (Amendment) Act, 2008 (5 of 2009) corresponded to old section 55(1). [s 41.1.1] Code of Criminal Procedure (Amendment) Act, 2008 (5 of 2009) .— This Amending Act which came into effect from 1 November 2010 has substituted clauses (a) and (b) in subsection (1) of section 41 with newly added clauses (a), (b) and (ba). This Amendment Act has also substituted sub-section 2.

Clause 5 amends section 41 relating to power of police to arrest without warrant. It amends clauses (a) and (b) of sub-section (1) so as to provide that the powers of arrest conferred upon the police officer must be exercised after reasonable care and justification and that such arrest is necessary and required under the section. Amendment is also made in sub-section (2) of section 41 so as to provide that subject to the provisions of section 42 relating to arrest on refusal to give name and residence, no person shall be arrested in a noncognizable offence except under a warrant or order of a Magistrate [vide Notes on Clauses, Clause 5].

Page 3 of 15 [s 41] When police may arrest without warrant.— After its amendment clauses (a), (b) and (ba) of sub-section (1) of section 41 provides that “(1) Any police officer may without an order from a Magistrate and without a warrant, arrest any person—

(a) who commits, in the presence of a police officer, a cognizable offence; (b) against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years whether with or without fine, if the following conditions are satisfied, namely:

(i)

the police officer has reason to believe on the basis of such complaint, information, or suspicion that such person has committed the said offence;

(ii) the police officer is satisfied that such arrest is necessary— (a) to prevent such person from committing any further offence; or (b) for proper investigation of the offence; or (c) to prevent such person from causing the evidence of the offence to disappear or tampering with the such evidence in any manner; or (d) to prevent such person from making any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to the police officer; or (e) as unless such person is arrested, his presence in the Court when-ever required cannot be ensured; and the police officer shall record while making such arrest, his reasons in writing. …

(ba) against whom credible information has been received that he has committed a cognizable offence punishable with imprisonment for a term which may extend to more than seven years whether with or without fine or with death sentence and the police officer has reason to believe on the basis of that information that such person has committed the said offence.”

Sub-section (2) of section 41 after its substitution provides that subject to the provisions of section 42, no person concerned in a non-cognizable offence or against whom a complaint has been made or credible information has been received or reasonable suspicion exists of his having so concerned, shall be arrested except under a warrant or order of a Magistrate. [s 41.1.2] Code of Criminal Procedure (Amendment) Act, 2010 (41 of 2010) .— This Amendment Act has inserted a new proviso to clause (b) of sub-section (1) which provides that in all cases where the arrest of a person is not required under the provisions of sub-section (1) the police officer shall record the reasons in writing for not making the arrest. [s 41.2] Scope and application of section 41.— From a plain reading of the amended section 41 of the Code, it is evident that a person accused of offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years with or without fine, cannot be arrested by the police officer only on its satisfaction that such person had committed the offence punishable as aforesaid. Police officer before arrest, in such cases has to be further

Page 4 of 15 [s 41] When police may arrest without warrant.— satisfied that such arrest is necessary to prevent such person from committing any further offence; or for proper investigation of the case; or to prevent the accused from causing the evidence of the offence to disappear; or tampering with such evidence in any manner; or to prevent such person from making any inducement, threat or promise to a witness so as to dissuade him from disclosing such facts to the Court or the police officer; or unless such accused person is arrested, his presence in the Court whenever required cannot be ensured [Arnesh Kumar v State of Bihar, AIR 2014 SC 2756 : 2014 (8) Scale 250 : (2014) 8 SCC 273 ].

Law mandates the police officer to state the facts and record the reasons in writing which led him to come to a conclusion covered by any of the provisions under section 41 of the Code, while making such arrest. Law further requires the police officers to record the reasons in writing for not making the arrest. In fact, before arrest, first the police officers should have reason to believe on the basis of information and material that the accused has committed the offence. Apart from this, the police officer has to be satisfied further that the arrest is necessary for one or the more purposes envisaged by provisions in section 41(1)(b)(ii)(a) to (e) of the Code [Arnesh Kumar v State of Bihar, AIR 2014 SC 2756 : 2014 (8) Scale 250 : (2014) 8 SCC 273 ].

The registration of FIR under section 154 of the Code and arrest of an accused person under section 41 are two entirely different things. It is not correct to say that just because FIR is registered, the accused person can be arrested immediately. It is the imaginary fear that ‘merely because FIR has been registered, it would require arrest of the accused and thereby leading to loss of his reputation” and it should not be allowed to hold that registration of FIR is not mandatory to avoid such inconvenience to some persons. The remedy lies in strictly enforcing the safeguards available against arbitrary arrests made by the police and not in allowing the police to avoid mandatory registration of FIR when the information discloses commission of a cognizable offence [Lalita Kumari v Govt. of UP, AIR 2014 SC 187 : 2013 (13) Scale 559 : (2014) 2 SCC 1 ].

Where an accused has been implicated in a case punishable with upto seven years, the arrest of the accused may not be necessary at the initial stage and his attendance may be secured by issuing a notice to him to appear before the police officer as provided under section 41A of the Code of Criminal Procedure, 1973. In such cases it would be advisable to arrest the accused only after sufficient evidence of his involvement in the crime has been collected and the charge sheet needs to be submitted [Shaukin v State of UP, 2011 (11) ADJ 249 ].

Arrest of accused without recording reasons is a violation not only of the provisions under section 41 of Code of Criminal Procedure, 1973. but also a violation of fundamental right guaranteed under Article 21 of the Constitution of India [N. Ratnakumari v State of Odisha, 2014 Cr LJ 4433 (Ori)].

The section confers very wide powers on the police in order that they may act swiftly for the prevention or detection of cognizable offences without the formality and delay of having to go to a Magistrate for order of arrest. Courts should therefore be particularly vigilant to see that the powers are not in any way abused or lightly used for the satisfaction of private feelings or of designing complainants. As observed in a case, the arrest and detention of persons without warrant are not matters of caprice but are governed by rules and principles clearly laid down by law. To arrest persons without justification is one of the most serious encroachments upon the liberty of a subject [Ramprit, AIR 1926 P 560; Gopal, 44 Mad LJ 635].

In a case where the offence was committed in the State of UP, but first information report was registered in New Delhi. Held, that Allahabad High Court had no territorial jurisdiction to consider application for stay of arrest, as no cause of action could be said to have arisen in State of U.P [Meera v State of UP, 2008 Cr LJ (NOC) 935 : 2008 (4) ALJ 120 : 2008 (61) All Cri C 233].

It is only for the Investigating Officer to arrest or not to arrest the petitioner. Held, allowing prayer for stay of arrest would amount to interference in investigation and will be without jurisdiction [Meera v State of UP, 2008 Cr LJ (NOC) 935 (All) : 2008 (4) ALJ 120 : 2008 (61) All Cri C 233].

Page 5 of 15 [s 41] When police may arrest without warrant.— In a case where the Magistrate passed order under section 156(3) to register a case and investigation against accused it was held that the request for staying arrest till submission of report under section 173 of the Code was premature and that the remedy would be available to the accused only when the case would be registered and investigation would be in progress [Hafizullah v State of UP, 2008 Cr LJ (NOC) 1117 (All) : 2008 (61) All Cri C 623]. [s 41.3] Right of arrested person—Guidelines.— (1) An arrested person being held in custody is entitled, if he so requests to have one friend, relative or other person who is known to him or likely to take an interest in his welfare told as far as is practicable that he has been arrested and where is being detained; (2) The Police Officer shall inform the arrested person when he is brought to the Police Station of this right; (3) An entry shall be required to be made in the Diary as to who was informed of the arrest. These protections from power must be held to flow from Articles 21 and 22(1) and enforce strictly. It shall be the duty of the Magistrate, before whom the arrested person is produced, to satisfy himself that these requirements have been complied with. The above requirements shall be followed in all cases of arrest till legal provisions are made in this behalf. These requirements shall be in addition to the rights of the arrested persons found in the various Police Manuals [Joginder Kumar v State of UP, AIR 1994 SC 1349 : 1994 Cr LJ 1981 : 1994 SCC (Cri) 1172 : (1994) 4 SCC 260 : 1994 (2) Crimes 106 ]. These should be kept in mind. [V.S. Krishnan v State of UP, 2000 Cr LJ 4498 (All) : 2000 All LJ 2154].

In D K Basu’s case (infra), the Supreme Court considered it appropriate to issue the following requirements to be followed in all cases of arrest or detention till legal provisions are made in that behalf as preventive measures:

(1) The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name tags with their designations. The particulars of all such police personnel who handle interrogation of the arrestee must be recorded in a register. (2) That the police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest. Such memo shall be attested by atleast one witness who may be either a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be counter signed by the arrestee and shall contain the time and date of arrest. (3) A person who has been arrested or detained and is being held in custody in a police station or interrogation centre or other lock-up, shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place, unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee. (4) The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside the district or town through the legal Aid Organisation in the District and the police station of the area concerned telegraphically within a period of eight to 12 hours after the arrest. (5) The person arrested must be made aware of this right to have someone informed of his arrest or detention as soon he is put under arrest or is detained. (6) An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of the next friend of the person who has been informed of the arrest and the names and particulars of the police officials in whose custody the arrestee is. (7) The arrestee should, where he so requests, be also examined at the time of his arrest and major and minor injuries, if any present on his/her body, must be recorded at that time. The “Inspection Memo” must be signed both by the arrestee and the police officer effecting the arrest and its copy provided to the arrestee.

Page 6 of 15 [s 41] When police may arrest without warrant.— (8) The arrestee should be subjected to medical examination by trained doctor every 48 hours during his detention in custody by a doctor on the panel of approved doctors appointed by Director, Health Services of the concerned Stare or Union Territory. Director, Health Services should prepare such a panel for all Tehsils and Districts as well. (9) Copies of all the documents including the memo of arrest, referred to above, should be sent to the Ilaqa Magistrate for his record. (10) The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation. (11) A police control room should be provided at all District and State headquarters, where information regarding the arrest and the place of custody of the arrestee shall be communicated by the officer causing the arrest, within 12 hours of effecting the arrest and at the police control room it should be displayed on a conspicuous notice board.

Failure to comply with the requirements hereinabove mentioned shall apart from rendering the concerned official liable for departmental action, also render him liable to be punished for contempt of Court and the proceedings for contempt of Court may be instituted in any High Court of the country, having territorial jurisdiction over the matter [DK Basu v State of WB, AIR 1997 SC 610 : (1997) 1 SCC 416 : 1997 Cr LJ 743 (SC)].

In Arnesh Kumar’s case, the Supreme Court gave the following directions to ensure that police officers do not arrest accused unnecessarily and Magistrate do not authorise detention casually and mechanically:

(1) All the State Governments to instruct its police officers not to automatically arrest when a case under section 498-A of the Indian Penal Code is registered but to satisfy themselves about the necessity for arrest under the parameters laid down above flowing from section 41, Code of Criminal Procedure, 1973; (2) All police officers be provided with a check list containing specified sub-clauses under section 41(1)(b)(ii); (3) The police officer shall forward the check list duly filled and furnish the reasons and materials which necessitated the arrest, while forwarding/ producing the accused before the Magistrate for further detention; (4) The Magistrate while authorising detention of the accused shall peruse the report furnished by the police officer in terms aforesaid and only after recording its satisfaction, the Magistrate will authorise detention; (5) The decision not to arrest an accused, is to be forwarded to the Magistrate within two weeks from the date of the institution of the case with a copy to the Magistrate which may be extended by the Superintendent of Police of the District for the reasons to be recorded in writing; (6) Notice of appearance in terms of section 41A of the Code of Criminal Procedure, 1973 is to be served on the accused within two weeks from the date of institution of the case, which may be extended by the Superintendent of Police of the District for the reasons to be recorded in writing; (7) Failure to comply with the directions aforesaid shall apart from rendering the police officers concerned liable for departmental action, they shall also be liable to be punished for contempt of Court to be instituted before High Court having territorial jurisdiction. (8) Authorising detention without recording reasons as aforesaid by the judicial Magistrate concerned shall be liable for departmental action by the appropriate High Court.

Page 7 of 15 [s 41] When police may arrest without warrant.—

The Supreme Court clarified that the aforesaid directions shall not only apply to the cases under section 498-A of the Indian Penal Code or section 4 of the Dowry Prohibition Act, but also to such cases where offence is punishable with imprisonment for a term which may be less than seven years or which may extend to seven years; whether with or without fine [Arnesh Kumar v State of Bihar, AIR 2014 SC 2756 : 2014 (8) Scale 250 : (2014) 8 SCC 273 ]. [s 41.4] Discretion.— The power is discretionary and must not be used in simple bailable offences unless there is reasonable ground of absconding. When there is “reasonable suspicion” or “credible information” (post) of the commission of a serious offence or such an offence is about to be committed, arrest should no doubt be made. In ordinary cases the complainant should be directed to go to a Magistrate for a warrant. The police officer may without arresting keep watch and then arrest, if subsequent events justify such action. But, no restraint can be lawfully exercised over a person so long as he is not arrested. The police cannot pursue their investigations by defying the provisions under the colourable pretention that no actual arrest has been made when to all intents and purposes a man has been in their custody or in detention [Madan, 1885 AWN 59 FB; Basooram, 19 WR 36]. The idea of free detention is unknown to law.

As the section gives very wide powers, it must be construed rigorously [Charu Ch, 44 C 76; Saindino, AIR 1934 SC 197 ].

Section 41 of the Code of Criminal Procedure, 1973 provides for arrest by a police officer without an order from a Magistrate and without a warrant. The section gives discretion to the police officer who may, without an order from a Magistrate and even without a warrant, arrest any person in the situations enumerated in that section. It is open to him, in the course of investigation, to arrest any person who has been concerned with any cognizable offence or against whom reasonable complaint has been made or credible information has been received, or a reasonable suspicion exists of his having been so concerned. Obviously, he is not expected to act in a mechanical manner and in all cases to arrest the accused as soon as the report is lodged. In appropriate cases, after some investigation, the investigating officer may make up his mind as to whether it is necessary to arrest the accused person. At that stage the Court has no role to play. Since the power is discretionary, a police officer is not always bound to arrest an accused even if the allegation against him is of having committed a cognizable offence. Since an arrest is in the nature of an encroachment on the liberty of the subject and does affect the reputation and status of the citizen, the power, has to be cautiously exercised. It depends inter alia upon the nature of the offence alleged and the type of persons who are accused of having committed the cognizable offence. Obviously, the power has to be exercised with caution and circumspection [M.C. Abraham v State, (2003) 2 SCC 649 : 2003 SCC (Cri) 628 : 2003 (1) Crimes 302 ].

Where the investigation for offence of murder was pending and no speculation regarding availability of evidence during course of investigation could be made, the arrest was not stayed [Hukum Singh Yadav v State of UP, 2010 Cr LJ (NOC) 433 (All)]. [s 41.5] Need for circumspection.— If in complaint case Magistrate passes order under section 156(3) and police registers a FIR, then before arresting the accused, the police shall approach the Magistrate and take his orders in that regard unless in a given particular case the police apprehend that these steps will frustrate the proceedings, the investigation and accused is dangerous or is likely to abscond. Jagannath Singh v Shri Ajay Upadhyay, 2006 Cr LJ 4274 (427677) (Bom) : 2006 (2) Bom CR (Cri) 827 . In exercising power of arrest it is necessary to be cautious and circumspect [Charu Ch., sup.]. The limitation is the requirement of reasonability and credibility to prevent the misuse of the powers [Ratna, 40 M 1028]. There can be no legal arrest if there is no information or reasonable suspicion that the person had been concerned in a cognizable offence [Raju Mia, 44 Cal WN 502]. Even if in any case there is a power of arrest without warrant, that power is to be exercised in such cases where the obtaining of a warrant from a Magistrate would invoke unnecessary delay and defeat the purpose [Bir Bhadra, AIR 1959 All 384 ]. Wilful excess or unjustifiable use of powers under section 41 is punishable (section 220 Indian Penal Code, 1860). The power to arrest may be exercised beyond the limits of the police officers station

Page 8 of 15 [s 41] When police may arrest without warrant.— (section 48). Procedure after arrest (sections 56, 57). Besides section 41 there are various Acts by State legislature providing for arrest without warrant.

Under section 50 an arrested person shall forthwith be informed of full particulars or other grounds for his arrest and in case of other than non-bailable offence he shall be informed that he is entitled to be released on bail and he may arrange for sureties. [s 41.6] “May.......arrest”.— In view of the observations made by the Apex Court in the case of Joginder Kumar v State of UP, 1994 Cr LJ 1981 SC : AIR 1994 SC 1349 : 1994 (2) Crimes 106 : (1994) 4 SCC 260 the observations made in the case of Vinod Narain (Dr.) v State of UP, 1996 Cr LJ 1309 (All) : 1996 All LJ 628 : 1996 (2) Rec CrR 439 that once disclosure of cognizable offence is made, arrest of the accused or suspect is a “must” are incorrect [Amarawati v State of UP, 2005 Cr LJ 755 (759) (All-FB) : (2004) 50 All CrC 742 : 2005 (1) Crimes 44 overruling Vinod Narain v State of UP, 1996 Cr LJ 1309 (All) : 1996 All LJ 628 : 1996 (2) Rec CrR 439].

Exception heinous crime, it would be proper to avoid arrest [Dinkaraopale v State of Maharashtra, (2004) 1 Crimes 1 (7) (Bom)]. The police officer must be able to justify the arrest apart from his power to do so [Dinkarao Pale v State of Maharashtra, (2004) 1 Crimes 1 (7) (Bom)].

Arrest is not quite must in every case. There must be sufficient reasons for exercising such powers by the police officer [Ram Prapanna v State of UP, 2007 Cr LJ (NOC) 439 : 2007 (3) ALJ 97 (All)]. A person is not liable to be arrested merely on suspicion of complicity in an offence [M.D. Farooquzzaman v State of Bihar, 2006 (3) Pat LJR 165 (Pat)].

In terms of section 41, a Police Officer may arrest a person without a warrant or order from the Magistrate for any or all of the conditions specified in that provision. Language of this provision clearly suggested that the Police Officer can arrest a person without an order from the Magistrate. Thus, there appears to be no reason why on the strength of section 156(3) of the Code, any restriction should be read into the powers specifically granted by the legislature to the Police Officer. Of course, freedom of investigation is the essence of these provisions but in order to suppress the mischief it is sufficiently indicated under different provisions of the Code that the arresting officer should exercise his power or direction judiciously and should be free of motive [Laxminarayan Vishwanath Arya v State of Maharashtra, 2008 Cr LJ 1 (11) (Bom) : 2007 (2) Bom CR (Cri) 383 : 2007 (5) Mah LJ 7 : 2007 All MR (Cri) 2886]. [s 41.7] Arrest of Judicial Officer—Guidelines for Police.— (a) If a judicial officer is to be arrested for some offence, it should be done under intimation to the District Judge or the High Court, as the case may be. (b) In case immediate arrest is necessary, a technical or formal arrest may be effected. (c) Fact of such arrest should be immediately communicated to the District and Sessions Judge of the District and the Chief Justice of the High Court. (d) The arrested officer shall not be taken to a police station without the prior order or direction of the District and Sessions Judge of the concerned District, if available. (e) Immediate facilities shall be provided to the judicial officer for communication with his family members, legal advisers and judicial officers, including the District and Sessions Judge. (f) No statement of an officer under arrest be recorded nor any panchanama be drawn up nor any medical tests be conducted except in the presence of his legal adviser or another judicial officer of equal or higher rank, if available. (g) There should normally be no handcuffing of a judicial officer and if it is necessary in very exceptional circumstances as enumerated, immediate report shall be made to the District and Sessions Judge and also to the Chief Justice of the High Court. These guidelines have not been held to be exhaustive [Delhi Judicial Service Association, Tis Hazari Court v State of Gujarat, AIR 1991 SC 2176 : 1991 Cr LJ 3086 : (1991) 4 SCC 406 : 1991 (3) Crimes 232 ]. [s 41.8] Constitutional aspect.— A few judgments of the Supreme Court have elaborated the constitutional safeguards relating to arrest including the arrest of Judicial Officers and members of Parliament or of State Legislature. Guidelines have been formulated by the Court in this regard See, for details, P.M. Bakshi’s Constitution of India a selected Commentary (1995), Notes on Article 27].

Page 9 of 15 [s 41] When police may arrest without warrant.— Under Article 22 of the Constitution, an arrested person shall be informed, as soon as may be, of the ground of his arrest and he shall be given the right to consult and to be defended by a lawyer of his choice. He shall also be produced before the nearest Magistrate within twenty-four hours of such arrest. (See sections 57, 167, 303, post and Article 22 in the Appendix). Remand under section 167(2) applies whether the arrest is under section 41 or section 151 [Gopalan, AIR 1962 K 215]. [s 41.9] Essential conditions for arrest.— (1) Commission of cognizable offence or reasonable complaint concerning it; (2) reasonable suspicion (i.e., founded on some definite facts) but not bare suspicion or surmise; or (3) credible information (i.e., sufficiently likely to be believable and from reliable source) of a person’s having been concerned in any cognizable offence; and (4) exercise of personal responsibility and personal judgment in making arrest without reliance on the belief of any other person.

As to the scope of corresponding old section 54 (now section 41) vis-a-vis the corresponding old section 56 (now section 55) there was conflict of opinion. One view was that its operation was not restricted to cases where a police officer was acting on his initiative and without orders; it also applied when he acted under the orders of another police officer. The section was not controlled by section 56 and so the issue of a written order under section 56 did not limit the power to arrest conferred by section 54 [Keshavlal, AIR 1937 B 56; Jioo Mian, 16 P 763; Kishun, 5 P 533; Achar, AIR 1937 SC 308 ; Gurucharan, AIR 1942 M 539; Md. Meera, AIR 1943 M 207; Mirwal AIR 1945 Pesh 46 ; Gandharba, AIR 1942 Ori 33 ; Kizhakkethil Sulaiman v State of Kerala, AIR 1964 Ker 185 : 1964 (2) Cr LJ 34 ; see Mahadeo, AIR 1924 A 201]. Keshavlal’s case, [supra] was explained as one in which the police had a dual authority—An order under section 56 as also possession of requisite information for arrest under section 54 [Ram Ch., AIR 1955 A 438]. The other view was that section 54 applied only where a police officer was not acting independently and on his own initiative in the course of his duty. But where he was not acting independently but was merely deputed by a superior officer to arrest some one concerned in cognizable offence, a further formality prescribed in section 56 was necessary to prevent abuse of powers or to allow the person to know the reason of arrest [Md. Ismail, AIR 1936 R 119; Sridhar, AIR 1941 R 180; Maroti, AIR 1939 N 95; see Ram Ch., AIR 1955 A 438]. Though the point did not arise directly in Calcutta the leaning appeared to be in favour of the latter view as it was held that section 54 was intended to cover those cases where the police officer acted on his own responsibility i.e., on suspicion or information based on facts which he had considered for himself [Santbir, 39 Cal WN 285, relying on Charu Ch., 20 Cal WN 1233. [s 41.10] Restrictions on arrest.— The power to arrest under section 41 is subject to restriction regarding arrest imposed for specific provisions of the Code e.g. section 45 of the Code, which gives to members of the armed forces a qualified protection from arrest. [See Report of the Journal Joint Committee’s Notes on Clauses 485, 486]. [s 41.11] Illegal arrest.— Illegality of arrest does not affect the validity of the trial. [Mubarak, A 1957 SC 857 ]. [s 41.12] Customs Officer.— A person detained by the Customs Officer for investigation or inquiry cannot be said to have been arrested or taken into custody [Niranjan Singh v Prabhakar Raja Ram, AIR 1980 SC 785 : 1980 Cr LJ 426 : (1980) 2 SCC 559 ]. [s 41.13] Authority for arrest.— When an arrested person is told that it is done under a particular authority and it turns out that authority is wanting, it cannot be validated by saying that the police had authority to arrest under section 41 [Kartick, AIR 1932 P 171; Appaswamy, 47 M 442]. If a police acts bona fide and wrongly arrests a person on reasonable suspicion he is protected [Bhawoo, 12 B 377; Dalip, 18 A 246]. Illegal arrest does not however affect the trial of the case (see notes to section 46 post).

As to additional powers of the Calcutta Police to arrest without warrant, see section 72 Calcutta Police Act, 1866. As to such powers of the police in Bombay, see sections 72, 73, 79, 80 Bombay Police Act, 22 of 1951.

Page 10 of 15 [s 41] When police may arrest without warrant.— A Magistrate may issue a warrant of arrest even at the stage where section 41 applies [Ram Narayan, AIR 1958 A 758].

Power to arrest must be exercised by police judiciously. [State of Rajasthan v Bhera, 1997 Cr LJ 1237 (Raj) : 1997 (1) Raj LW 148 : 1997 (1) WLC 745 ]. [s 41.14] Any Police Officer.— A village Chowkidar (watchman) is not a police officer [Kalai, 27 C 366; Balai 35 C 361; Bhagwandin, AIR 1929 A 935; Jange, 1944 All 227 ; AIR 1944 A 117; Jograj, AIR 1940 P 696]. Issue of warrant for the arrest of a person on a charge of a cognizable offence enables any police officer to arrest him under section 41 although the warrant may not be entrusted to him [Ratna, 40 M 1028; Ally Md., AIR 1922 A 457]. [s 41.15] Clause (a).— Cognizable offence [section 2(c) and Schedule 1]. The CrPC (Amendment) Act, 2008 (5 of 2009) has substituted clause (a) in sub-section (1) of section 41 with a new clause (a). After its amendment sub-section (1)(a) of section 41 provides that any police officer may without an order from a Magistrate and without a warrant, arrest any person who commits a cognizable offence in the presence of a police officer.

As regards the power of police to arrest, there are express provisions dealing with the same and power of police to arrest is not derived from or controlled by section 202(3). The said power is available under section 41 of the Code of Criminal Procedure, 1973 or under a warrant. The power remains available subject to conditions for exercise thereof. For example, it can be exercised under section 41(1)(a) if cognizable offence is committed in the presence of a police officer [Ramdev Food Products Pvt Ltd v State of Gujarat, 2015 (3) Scale 622 ].

It does not apply to a non-cognizable offence [Vijay, 22 PLT 29; Raghuni, AIR 1936 P 249]. Arrest in noncognizable offence (section 42). Complaint to police is meant in this section. But when a complaint to a Magistrate is sent to a police officer for investigation, he can resort to section 41 [Bhola, 2 P 379; see Ally Md., supra]

Section 41(1)(a) authorises any Police Officer to arrest any person even without a warrant, if such a person sought to be arrested has been concerned in any cognizable offence, etc. It is the case of the respondents that the petitioner is an accused in five cognizable offences. Therefore, the Code of Criminal Procedure, 1973 authorises his arrest, without the existence of a warrant in view of the provisions of section 41(1)(a), Code of Criminal Procedure, 1973 [Kura Rajaiah alias K. Rajanna v Government of Andhra Pradesh, 2007 Cr LJ 2031 (2038) (AP-DB) : 2007 (1) Andh LD (Cr) 845]. [s 41.16] Reasonable suspicion.— No definition is possible of what is a reasonable complaint or reasonable suspicion as it depends so much on the special facts of each case [see Behary, 71 WR Cr 3; Gopal, 36 A 6; Ratna, 40 M, 1028], “but it must at least be founded on some definite facts tending to throw suspicion on the person arrested and not on mere vague surmise or information. Still less have the police any power to arrest persons, as they sometimes appear to do, merely on the chance of something being hereafter proved against them [Markby, J. in Behary, 7 WR Cr 3]. This case has been approved in several decisions [Charu Ch, 20 Cal WN 1233; Bhawoo, 12 B 377, 388; Saindino, AIR 1934 SC 197 ; Tribhawan, AIR 1949 O 74; Roshan, AIR 1950 MB 83 ]. Reasonable means a bona fide belief that an offence had been committed or is about to be committed [Muhammed, AIR 1943 M 218]. Mere suspicion is not enough [Maheshwar, AIR 1955 NUC (Or) 439]. The burden is on the police officer to satisfy the Court before which the arrest is challenged that he had reasonable grounds of suspicion [Vimlabai, AIR 1946 PC 123 : 73 IA 144 : 50 Cal WN 814 (Shearer, 1914 AC 808 relied on)].

It is no “reasonable suspicion” merely because a police officer has been informed by another police officer that the latter thinks there is information of commission of a cognizable offence [Charu Ch, 20 Cal WN 1233, 1239; relied on in Subodh Chandra Roy Choudhuri v King-Emperor, AIR 1925 Cal 278 : 26 Cr LJ 625 : 29 Cal WN 98]. Credible and reasonable must have reference to the mind of the person receiving the information [Subodh, supra]. It must be based on definite facts other than personal feelings of the police officer. Reasonable

Page 11 of 15 [s 41] When police may arrest without warrant.— suspicion does not mean that the police are limited by their own discretion as to which persons they may arrest [Tribhawan, AIR 1949 O 74]. Police constable arresting suspected thief without warrant on his own initiative under section 41(1) acts lawfully even if section 55(1) is not complied with [Kizhakkethil Sulaiman v State of Kerala, AIR 1964 Ker 185 : 1964 (2) Cr LJ 34 ]. The police are not the final Judges of what is reasonable or credible [Pramila, 36 Cal WN 669]. Complaint of rape is sufficient ground of suspicion [Mahadeo, 21 ALJ 791 : AIR 1924 All 201 ].

A police officer in possession of the requisite information, suspicion, etc., may arrest a person concerning a cognizable offence committed in another place or district [Kali Charan, AIR 1955 All 462 ]. [s 41.17] Clause (b).— The CrPC (Amendment) Act, 2008 (5 of 2009) has substituted clause (b) in sub-section (1) of section 41 with a new clause (b). After its amendment sub-section (1)(b) of section 41 provides that – Any police officer may without an order from a Magistrate and without a warrant, arrest any person against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years whether with or without fine, if the following conditions are satisfied, namely:

(i)

the police officer has reason to believe on the basis of such complaint, information, or suspicion that such person has committed the said offence;

(ii) the police officer is satisfied that such arrest is necessary—

(a) to prevent such person from committing any further offence; or (b) for proper investigation of the offence; or (c) to prevent such person from causing the evidence of the offence to disappear or tampering with the such evidence in any manner; or (d) to prevent such person from making any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to the police officer; or (e) as unless such person is arrested, his presence in the Court whenever required cannot be ensured. This substituted clause (b) makes it mandatory for the police officer to record reasons in writing while making such arrest.

Each of the stipulations in sub-clauses (ii)(a) to (ii)(e) in section 41(1), is mutually exclusive. Even if one specified reason appeals to the police officer for arresting the person involved in commission of the stated offences - where the police officer has reason to believe that the person has committed the offence, is good enough to empower him to arrest the accused. Indeed, he is expected to and must record his reason(s) in writing which influenced him to arrest the person. That he can record even at the time of arrest of that person. The expression “while making such arrest” leaves no manner of doubt that it would mean “at the time of making such arrest” or “during the arrest instantly”. It can be recorded contemporaneously [Afak Shabbir Khan v State of Maharashtra, 2013 Bom CR (Cri) 24 ].

As per proviso to section 41(1)(b)(ii) if the police officer feels that in spite of a reasonable complaint/credible information/reasonable suspicion that the person concerned has committed a cognizable offence which is

Page 12 of 15 [s 41] When police may arrest without warrant.— punishable with imprisonment for a term which may be less than 7 years or which may extend to 7 years whether with or without fine, the arrest of such person is not required, then also he has to record the reasons in writing for not making the arrest. Thus, recording the reasons is necessary where the police officer is making the arrest and even where he feels that arrest is not required in a case where it is a cognizable offence and the punishment prescribed may be less than seven years or may extend to seven years whether with or without fine [N. Ratnakumari v State of Orissa, 2014 Cr LJ 4433 (Ori) : 2014 (4) RCR (Cri) 955 ]. [s 41.18] Clause (ba).— Any police officer may without an order from a Magistrate and without a warrant, arrest any person against whom credible information has been received that he has committed a cognizable offence punishable with imprisonment for a term which may extend to more than seven years whether with or without fine or with death sentence and the police officer has reason to believe on the basis of that information that such person has committed the said offence. [s 41.19] Clause (c).— See section 40(2)(ii) and section 82. [s 41.20] Clause (d).— Reasonably suspected to be stolen property [Gourie, 8 WR 28; Seo Saran, 10 WR 20; Abdul Gani, 49 B 878, 890]. Asking an accused to explain his possession of property believed to be stolen does not infringe Article 20(3) of the Constitution [Fundan, AIR 1960 B 377 : ILR 1958 Bom 883 ].

A person arrested under section 41(1)(d) or under section 151 of the Code of Criminal Procedure, 1973, on mere suspicion cannot be said to be a person against whom the commission of a cognizable or non-bailable offence is alleged or made out and such person cannot, without anything more, be remanded to judicial custody. On the contrary, such person should be released on bail by invoking the power under section 436, Code of Criminal Procedure, 1973 treating the case as a bailable one. But the position would be different, if after such arrest, there is material collected and produced before the Magistrate to indicate that such person has committed a cognizable or a non-bailable offence [Manikandan v SI of Police, Police Station, 2008 Cr LJ 1338 (1340) (Ker) : 2008 (1) Ker LT 37 : 2008 (2) AICLR 35]. [s 41.21] Clause (e).— Obstruction or escape (sections 186, 224 & 225, Indian Penal Code, 1860). [s 41.21.1] Clause (e)— “whoever” “obstructs…. from lawful custody”.—The respondents were arrested on 31 August 2006 at Barabankhi only because they obstructed the respondents 7 to 15 in the execution of their duty of arresting the 1st petitioner. The fact that the petitioners resisted the arrest is admitted by the 1st petitioner in his affidavit at para (2) is as follows:

A group of 10 people who were identified later as policemen from Andhra Pradesh (Respondents 7 to 15) surrounded us and told one of us that they are police from Andhra Pradesh, and they have come to arrest us. While we were resisting the people.

Therefore, the requirements of section 41 are clearly met in the present case. Section 41(1)(a) in the case of the 1st petitioner and (e) in the case of the other petitioners [Kura Rajaiah v Government of AP, 2007 Cr LJ 2031 (2038) (AP) : 2007 (1) Andh LD (Cr) 845]. [s 41.22] Clause (f).— Deserted from Army [see section 105, Army Act, 46 of 1950; Thangapandian, AIR 1943 M 280; Raham Ali, 13 Cr LJ 234]; from navy [see section 84, Navy Act, 1957]; from Air Force [see section 106, Air Force Act, 1950]. [s 41.23] Clause (g).— The requisites are: (1) Either the proof of the fact of the person having been concerned in the act; or (2) credible information or reasonable suspicion of his having been concerned therein. Police officer must exercise

Page 13 of 15 [s 41] When police may arrest without warrant.— his own judgment and form his own opinion as to whether he should arrest and this personal judgment and the reasonable suspicion and credible information must be based on some definite fact. He cannot delegate his discretion and act under the belief or judgment of another police officer who may have sent information of arrest [Subodh Chandra Roy Choudhuri v King-Emperor, AIR 1925 Cal 278 : ILR 52 Cal 319 : 29 Cal WN 98, following Charu Ch., 44 C 76; Saindino, AIR 1934 SC 197 ; Kalu, AIR 1933 L 159]. The requirement of personal judgment does not appear to have been affected by the ninth clause [now clause (i)] (added in 1923) as Subodh’s case which was decided in 1924 contains no reference to it; see also Roshan, AIR 1950 MB 83 . It has also been held that neither the ninth clause [now clause (i)] nor section 56(1) [now section 55(1)] in any way limits or confines or restricts the application of section 54(l) [now section 41(1)] [Md. Meera, AIR 1943 M 207].

Section 23 of the Extradition Act, applies when an arrest is made under clause (g) without warrant on the police officer’s own responsibility. When the arrest is under the order of a Magistrate, it is that order which must determine the legality or otherwise of the arrest [Santbir, 39 Cal WN 285]. To justify arrest under clause (g) there must be in existence as a fact, as opposed to any belief, a warrant under the Extradition Act [Harmohan, 18 P 121]. There is nothing in section 41 to hold that the person arrested should be liable to be arrested without warrant, if the offence had been committed in India [Verghese, AIR 1947 M 358]. Magistrate has power to grant bail to an arrested extradition offender [Sriram, AIR 1925 B 104].

A person belonging to a commonwealth country was arrested as a fugitive criminal under section 41(1)(g), Code of Criminal Procedure, 1973 by a police officer, without an order of the Magistrate and without a warrant. This was done on the basis of a telex message from the country in question, which did not disclose as to how the alleged offence was committed by the arrested person and under what circumstances. The message only requested for holding a discreet enquiry. The arrested person was not produced before the Magistrate (in India) after the arrest. It was held that the arrest was wholly misconceived and without the authority of law. [M. Baskaran v The State, (1989) Cr LJ 653 : (1989) 37 DLT 298 : 1989 (2) Chand LR (Cri) 107 (Del) (PN Nag, J)]. [s 41.24] Red Corner Notice—Applicability of section 41(1)(g), CrPC.— Section 41(1) (g) cannot be pressed into service when there is a Red Corner Notice. Consequence of the Red Corner Notice is that the requesting country may make deportation request to take follow up action with regard to the arrest of fugitive criminals. However, the main criterion is that the extradition proceedings have to follow. In that event, the respondent is to fallow the procedure prescribed for a Magistrate for issuance of warrant in holding the enquiry into the matter on receipt of the Central Government. Under section 9 of the Extradition Act, the Magistrate may issue a warrant of arrest. Therefore, a formal request is yet to be made by the Sri Lankan Government for the extradition of the petitioner and registration of FIR under section 41(1)(g) of the Code. [Mohammed Zubair Fauzal Awam v State, 2011 Cr LJ 2975 (2978) (Mad).] [s 41.25] Clause (i)—Arrest.— It meets the case of requisition from a police officer to arrest a man at a distance. It is intended to meet the case where the accused has absconded from the jurisdiction of the investigating officer to that of another police station. As a safeguard, it is provided that the particulars specified therein should be given. This clause does not, in any way, limit the powers under the other clauses. It merely relates to another class of persons [Md. Meera, AIR 1943 M 207]. To remove the controversy whether the requisition must be in writing, the words “written or oral” have been added. In regard to a cognizable offence the police of a certain place can on receipt of a requisition from the police of other districts showing the offence or other cause, arrest a person [Kalicharan, AIR 1955 A 462]. A thana officer may give written requisition to another thana officer to extend help to his constables for arrest [Entajuddi, AIR 1946 C 314]. Requisition may be made through telephone or wireless but the particulars must be specified [Gurucharan, 1942 Mad 696 : AIR 1942 M 539 : Roshan, AIR 1950 MB 83 ]. The power under the clause being drastic has to be exercised with caution and on substantial reasons [Gulam Md., AIR 1959 MP 147 ]. [s 41.26] Sub-section (2).— The CrPC (Amendment) Act, 2008 (5 of 2009) has substituted sub-section (2) of section 41. Sub-section (2) of section 41 after its substitution provides that subject to the provisions of section 42, no person concerned in a non-cognizable offence or against whom a complaint has been made or credible information has been received or reasonable suspicion exists of his having so concerned, shall be arrested except under a warrant or order of a Magistrate. [s 41.27] Bail.—

Page 14 of 15 [s 41] When police may arrest without warrant.— Arrested person should be given the option of release on reasonable bail [Daulat, 14 A 45, 47; see, however, Jakir Ali, 63 C 189]. [s 41.28] Legality of chapter proceedings against accused.— In absence of any fear of creation of problems for security of community no possibility of extortion, arresting an applicant on basis of chapter proceedings is illegal [Shyam Dattatray Beturkar v Special Executive Magistrate Kalyan, 1999 Cr LJ 2676 (Bom) : 1999 (3) MhLJ 197 ]. [s 41.29] Direction by Court for avoiding confession on identity.— In order to ensure that no confusion has arisen in matters of identity of the accused Court finding it necessary to avoid such confusion directs various instructions through the State Government to be followed strictly [Mahendra Harjivan Luhar v State of Gujarat, 1999 Cr LJ 3025 (Guj)]. [s 41.30] Claim for protection.— Where Court had refused to interfere with investigation, claim for protection against arrest is not tenable [Mohd. Nazim v State, 1998 Cr LJ 1089 (All) : (1997) 35 All Cr C 616 : 1998 All LJ 103]. [s 41.31] Arrest of female.— While arresting a female person, all efforts should be made to keep a lady constable present but in circumstances where the Arresting Officer is reasonably satisfied that such presence of a lady constable is not available or possible and/or the delay in arresting caused by securing the presence of a lady constable would impede the course of investigation, such Arresting Officer for reasons to be recorded either before the arrest or immediately after the arrest be permitted to arrest a female person for lawful reasons at any time of the day or night depending on the circumstances of the case even without the presence of a lady constable [State of Maharashtra v Christian Community Welfare Council of India, AIR 2004 SC 7 : 2004 Cr LJ 14 : (2003) 8 SCC 546 : 2003 (4) Crimes 367 (SC)]. [s 41.32] Arrest and custody.— The taking of the person into judicial custody is followed after the arrest of the person concerned by the Magistrate on appearance or surrender. In every arrest, there is custody but not vice versa and that both the words “custody and arrest” are not synonymous terms. Though “custody” may amount to an arrest in certain circumstances but not under all circumstances. If these two terms are interpreted as synonymous, it is nothing but an ultra legalist interpretation which if under all circumstances accepted and adopted would lead to a starting anomaly resulting in serious consequences [Directorate of Enforcement v Deepak Mahajan, AIR 1994 SC 1775 : 1994 Cr LJ 2269 : (1994) 3 SCC 440 : 1994 (1) Crimes 892 ; Pragya Singh Thakur v State of Maharashtra, 2010 Cr LJ 3267 (2383) (Bom)]. [s 41.33] Petition seeking compensation for illegal detention.— In the instant case there was nothing on record to show or suggest that the accused was illegally detained. The records showed that the accused was arrested in connection with offences under sections 325 and 323, Indian Penal Code, 1860 and, therefore, the arrest of the accused on 24 April 2003 could not be said to be illegal detention and the accused was not entitled to compensation [Murlidhar Atmaramwani v D.D. Shankarwar, 2010 Cr LJ 4230 (4234) (Bom) : 2010 (112) BomLR 3248 ].

In case of arrest, the procedure shall be followed by the police officer. In the instant case the conditions precedent of procedure of arrest were not followed hence the dignity of petitioners, doctor and practising advocate, both ladies was seriously jeopardised and the liberty of petitioner was curtailed. State was directed to pay compensation of Rs. Five Lakhs granted to each of them. [Dr. Rini Johar v State of MP, AIR 2016 SC 2679 : 2016 (3) RCR (Cri) 300 ].

1

Substituted by the Code of Criminal Procedure (Amendment) Act, 2008 (5 of 2009), section 5 (w.e.f. 1 October 2010). Before substitution, clauses (a) and (b) stood as under:

Page 15 of 15 [s 41] When police may arrest without warrant.— “(a) who has been concerned in any cognizable offence, or against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists, of his having been so concerned; or (b) who has in his possession without lawful excuse, the burden of proving which excuse shall lie on such person, any implement of house-breaking; or”

2

Inserted by the Code of Criminal Procedure (Amendment) Act, 2010 (41 of 2010), section 2 (w.e.f. 2 October 2010).

3

Substituted by the Code of Criminal Procedure (Amendment) Act, 2008 (5 of 2009), section 5 (w.e.f. 1 October 2010). Before substitution, sub-section (2) stood as under: “(2) Any officer in-charge of a police station may, in like manner, arrest or cause to be arrested any person, belonging to one or more of the categories of persons specified in Section 109 or Section 110.”

End of Document

[s 41A Notice of appearance before police officer.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER V ARREST OF PERSONS

The Code of Criminal Procedure, 1973 CHAPTER V ARREST OF PERSONS 4[s

41A Notice of appearance before police officer.— (1)

5[The

police officer shall], in all cases where the arrest of a person is not required under the provisions of sub-section (1) of Section 41, issue a notice directing the person against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence, to appear before him or at such other place as may be specified in the notice.

(2) Where such a notice is issued to any person, it shall be the duty of that person to comply with the terms of the notice. (3) Where such person complies and continues to comply with the notice, he shall not be arrested in respect of the offence referred to in the notice unless, for reasons to be recorded, the police officer is of the opinion that he ought to be arrested. 6[(4) Where such person, at any time, fails to comply with the terms of the notice or is unwilling to identify, the police officer may, subject to such orders as may have been passed by a competent Court in this behalf, arrest him for the offence mentioned in the notice.]

4

New Sections 41A to 41D inserted by the Code of Criminal Procedure (Amendment) Act, 2008 (5 of 2009), Section 6 (w.e.f. 01 October 2010).

5

Substituted for the words “The police officer may” by the Code of Criminal Procedure (Amendment) Act, 2010 (41 of 2010), Section 3 (w.e.f. 2 October 2010)

6

Substituted by the Code of Criminal Procedure (Amendment) Act, 2010 (41 of 2010), Section 3 (w.e.f. 2 October 2010). Before substitution, sub-section(4) stood as under : “(4) Where such person, at any time, fails to comply with the terms of the notice, it shall be lawful for the police officer to arrest him for the offence mentioned in the notice, subject to such orders as may have been passed in this behalf by a competent Court.”

End of Document

[s 41B] Procedure of arrest and duties of officer making arrest.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER V ARREST OF PERSONS

The Code of Criminal Procedure, 1973 CHAPTER V ARREST OF PERSONS [s 41B] Procedure of arrest and duties of officer making arrest.— Every police officer while making an arrest shall— (a) bear an accurate, visible and clear identification of his name which will facilitate easy identification; (b) prepare a memorandum of arrest which shall be— (i)

attested by at least one witness, who is a member of the family of the person arrested or a respectable member of the locality where the arrest is made;

(ii) countersigned by the person arrested; and (c) inform the person arrested, unless the memorandum is attested by a member of his family, that he has a right to have a relative or a friend named by him to be informed of his arrest. End of Document

[s 41C] Control room at districts.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER V ARREST OF PERSONS

The Code of Criminal Procedure, 1973 CHAPTER V ARREST OF PERSONS [s 41C] Control room at districts.— (1) The State Government shall establish a police control room— (a) in every district; and (b) at State level. (2) The State Government shall cause to be displayed on the notice board kept outside the control rooms at every district, the names and addresses of the persons arrested and the name and designation of the police officers who made the arrests. (3) The control room at the Police Headquarters at the State level shall collect from time to time, details about the persons arrested, nature of the offence with which they are charged, and maintain a database for the information of the general public. End of Document

[s 41D] Right of arrested person to meet an advocate of his choice during interrogation.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER V ARREST OF PERSONS

The Code of Criminal Procedure, 1973 CHAPTER V ARREST OF PERSONS [s 41D] Right of arrested person to meet an advocate of his choice during interrogation.— When any person is arrested and interrogated by the police, he shall be entitled to meet an advocate of his choice during interrogation, though not throughout interrogation.] [s 41D.1] Legislative Changes in section 41D —The Code of Criminal Procedure (Amendment) Act, 2008 (5 of 2009).— Sections 41A to 41D have been inserted by the CrPC (Amendment) Act, 2008 (5 of 2009). Section 41A provides that where a case falls under sub-section (1) of section 41, the police officer may, instead of arresting the person concerned, issue to him a notice of appearance requiring him to appear before the police officer. Section 41B lays down the procedure of arrest and duties of officer making arrest. Section 41C requires the State Government to establish a police control room in every district and at the State level, where the names and addresses of the persons arrested, nature of offences with which they are charged, and the name and designation of the police officers who made the arrest are to be displayed. Section 41D makes provisions for right of the arrested persons to meet an advocate of his choice during the interrogation, though not throughout interrogation [vide Notes on Clauses, Clause 6]. [s 41D.1.1] Code of Criminal Procedure (Amendment) Act, 2010 (41 of 2010).— Section 41A of the Code of Criminal Procedure, 1973 was further amended by the CrPC (Amendment) Act, 2010 and following changes were made:

(i)

the words “The police officer shall” were substituted for the words “The police officer may” in subsection (1).

(ii) Substituted sub-section (4) of section 41. [s 41D.2] Scope and application of section 41D.— Section 41A, Code of Criminal Procedure, 1973 makes it compulsory for the police to issue a notice in all such cases where arrest is not required to be made under Clause (b) of sub-section (1) of the amended section 41. But, all the same, unwillingness of a person who has not been arrested to identify himself and to whom a notice has been issued under section 41A, could be a ground for his arrest. Legislation has laid down various parameters; warranting arrest of a person, which itself is a check on arbitrary or unwarranted arrest and the right to personal liberty guaranteed under Article 21 of the Constitution of India [Hema Mishra v State of UP, AIR 2014 SC 1066 : (2014) 4 SCC 453 : 2014 Cr LJ 1107 (SC)].

Under the newly introduced provision, section 41-A, Code of Criminal Procedure, 1973 in all cases where the

Page 2 of 2 [s 41D] Right of arrested person to meet an advocate of his choice during interrogation.— arrest of such an accused is not needed in view of the provisions of section 41(1), Code of Criminal Procedure, 1973, the police officer concerned is required to issue a notice directing the accused to appear before him at a specified place and time. However, if at any time the accused fails to comply with the terms of the notice, or fails to identify himself, or the police officer is of the opinion that the arrest is required, he may arrest the said accused after recording his reasons for the same. The powers of the police to arrest will however be subject to any orders that may have been passed by the Competent Court. [Yagya Shanker Trivedi v State of UP, 2014 (1) All LJ 350 (All) (DB)].

Section 41A makes it clear that in all cases where the arrest of a person is not required under section 41(1) of the Code, the police officer is required to issue notice directing the accused to appear before him at a specified place and time. Law obliges such an accused to appear before the police officer and it further mandates that if such an accused complies with the terms of notice he shall not be arrested, unless for reasons to be recorded, the police officer is of the opinion that the arrest is necessary. At this stage also, the condition precedent for arrest as envisaged under section 41 the Code has to be complied with and shall be subject to the same scrutiny by the Magistrate [Arnesh Kumar v State of Bihar, AIR 2014 SC 2756 : 2014 (8) Scale 250 : (2014) 8 SCC 273 ].

Section 41-B of the Code requires a police officer making an arrest to prepare a memorandum of arrest which shall be attested by at least one witness who is a member of the family of the person arrested or a respectable member of the locality where the arrest is made. The police officer is also mandated to inform the arrested person, if the memorandum of arrest is not attested by a member of his family, that he has a right to have a relative or a friend named by him to be informed of his arrest [Jitendra Singh v State of UP, 2013 (9) Scale 18 : 2013 (5) Supreme 232 ]. End of Document

[s 42] Arrest on refusal to give name and residence.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER V ARREST OF PERSONS

The Code of Criminal Procedure, 1973 CHAPTER V ARREST OF PERSONS [s 42] Arrest on refusal to give name and residence.— (1) When any person who, in the presence of a police officer, has committed or has been accused of committing a non-cognizable offence refuses, on demand of such officer, to give his name and residence or gives a name or residence which such officer has reason to believe to be false, he may be arrested by such officer in order that his name or residence may be ascertained. (2) When the true name and residence of such person have been ascertained, he shall be released on his executing a bond, with or without sureties, to appear before a Magistrate if so required : Provided that, if such person is not resident in India, the bond shall be secured by a surety or sureties resident in India. (3) Should the true name and residence of such person not be ascertained within twenty-four hours from the time of arrest or should he fail to execute the bond, or, if so required, to furnish sufficient sureties, he shall forthwith be forwarded to the nearest Magistrate having jurisdiction. [s 42.1] Changes.— Section 42 corresponds to old section 57, verbatim. [s 42.2] Scope and application of section 42.— The section applies to a person—(1) who commits a non-cognizable offence in the presence of a police officer, or (2) is accused before him of having committed such an offence. Arrest is permissible only, if he refuses to give name and address [Goolab, 5 Bom LR 597] and as soon as they are ascertained he is to be released on execution of a bond for appearance. If name and residence cannot be ascertained he must not be kept under arrest beyond 24 hours, but should be taken to a Magistrate. If his name and address were previously known to the police officer, he cannot be arrested or detained [Gopal, 46 M 605]. End of Document

[s 43] Arrest by private person and procedure on such arrest.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER V ARREST OF PERSONS

The Code of Criminal Procedure, 1973 CHAPTER V ARREST OF PERSONS [s 43] Arrest by private person and procedure on such arrest.— (1) Any private person may arrest or cause to be arrested any person who in his presence commits a nonbailable and cognizable offence, or any proclaimed offender, and, without unnecessary delay, shall make over or cause to be made over any person so arrested to a police officer, or, in the absence of a police officer, take such person or cause him to be taken in custody to the nearest police station. (2) If there is reason to believe that such person comes under the provisions of Section 41, a police officer shall re-arrest him. (3) If there is reason to believe that he has committed a non-cognizable offence, and he refuses on the demand of a police officer to give his name and residence, or gives a name or residence which such officer has reason to believe to be false, he shall be dealt with under the provisions of Section 42; but if there is no sufficient reason to believe that he has committed any offence, he shall be at once released. [s 43.1] Changes.— This section corresponds to old section 59 with the following changes :

In sub-section (1)—(i) the words “or cause to be arrested” and “or cause to be made over” have been added to enable a private person not only to arrest the offender himself but also to cause to be arrested.

(ii) The word “presence” has been substituted for “view” as the word “view” might also mean opinion [see Nazir, AIR 1951 A 3 FB]. [s 43.2] Cause to be arrested.— The new Code adds the words “or cause to be arrested” accepting the recommendation of the Law Commission of India [Fakira v Swarup, I 1946, 443 Karadre 443]. [s 43.3] Scope and application of section 43.— This section proceeds on the principle that every citizen has the duty to help keep the peace and so the right to make over or cause to be made over to the authorities any offender who breaks the law. It empowers a private person to arrest or cause to be arrested,—(1) a proclaimed offender, or (2) any person who in his presence commits a non-bailable and cognizable offence, but not after the completion of such offence. After the offence has already been committed, it is a matter for the police and a private person should then inform them. After arrest, he must without unnecessary delay either take the person or cause him to be taken to the nearest thana police station. Akin to the right in section 43 is the right of private defence (sections 96 and 97 of the Indian Penal Code, 1860) which every citizen has of protecting the body or property of himself or any other person extending to causing death for saving life or property in proper cases.

Page 2 of 3 [s 43] Arrest by private person and procedure on such arrest.— Under section 43, even a private individual can have authority to take culprit in custody. But the power is not unlimited rather it is a limited one [Radha Sah v State of Jharkhand, 2007 Cr LJ 2805 (Jhar) : 2007 (2) JLJR 75 ].

A private person is empowered under section 43, Code of Criminal Procedure, 1973 to arrest or cause to be arrested (i) a proclaimed offender (ii) any person, who, in his presence commits non-bailable and cognizable offence but not after the completion of such offence [Ibid].

Accused while being taken to Police Station by witnesses of offence was rescued by petitioners who were convicted under section 225 Indian Penal Code. Accused was actually arrested after commission of offence and there was no eye witness to occurrence. Hence, witnesses had no authority to arrest accused under section 43. Since accused was not lawfully detained by private individuals conviction of petitioners was set aside as no overt act was played by them [Ibid].

Andhra Pradesh Police Special party was constituted to arrest accused from outside the State of Andhra Pradesh. The police official constituting such special party would assume characters of private persons outside territory of Andhra Pradesh. It was held that only authority of law to arrest is to be found under section 43 [Kura Rajmaiah v State, 2007 Cr LJ 2031 (AP) : 2007 (1) Andh LD (Cr) 845].

The rule of English common law that a private person may arrest any person reasonably apprehended to commit a breach of the peace does not apply in this country. Sections 96, 97 and 102 and 105, Indian Penal Code, 1860 define the limits within which restraint can be placed on another citizen [Gopal, 46 M 605 FB, Gouri Prasad Day v Chartered Bank of India, AIR 1925 Cal 884 : 89 IC 642 : 52 C 615].

As to additional powers of private individuals in the town of Calcutta for apprehension of offenders, see sections 74 and 75 Calcutta Police Act, 4 of 1866.

No arrest can be made on mere suspicion or information [Potadu, 11 M 480; Gokul, 26 Cr LJ 1462]. Private citizen cannot follow and arrest a person on the statement of another person, however unimpeachable, that the former committed a non-bailable and cognizable offence [Kartar, AIR 1956 Pu 122 (Kalai, 27 C 336 : 4 Cal WN 252 relied on)]. A person arrested by villagers on suspicion of theft and taken charge of by a constable cannot on his escape be convicted under section 224 of the Indian Penal Code, 1860, as no cognizable offence was committed in the view of the villagers and further there must be re-arrest under sub-section (2). The argument that the constable had independent power to arrest under section 43 is of no avail [Indra, AIR 1960 Ori 23 ]. To enable a private citizen to arrest, the offence must be committed in the presence of or “within sight of” [Gokul, AIR 1926 P 53; Abdul Aziz, AIR 1933 P 508; Alwal, AIR 1922 L 73]. So arrest made after the commission of theft [Balai, 35 C 36; Johri, 23 A 266], or while escaping after murder [Abdul 23 Cr LJ 3; Abdul Aziz, supra] is not legal. In Abdul Aziz, supra, when G was murdered, his cry brought out his son R who chased the murderer and was also killed by the accused; but it was held that the accused had a right of private defence G not being killed in the presence of R, the latter could not arrest under section 43. The interpretation in these cases appears to be too literal. The case is otherwise if the offence be a continuing one. The words “in his presence” should be given a wider and rational interpretation instead of sticking to the literal sense. Following the principle of English law it has been held that actual commission of offence and escape are to be treated a single transaction and so any person who either sees a person committing an offence or finds him running away immediately after commission is entitled to chase and arrest him [Sheobalak, AIR 103 : 49 Cr LJ 62; see also Arumugha, AIR 1924 M 384, post where also a wide meaning was given]. Agreeing with Sheobalak’s case and dissenting from the views of other High Courts it has been held by a Full Bench that when a person who had seen a dacoity being committed chases the dacoits and is joined by others in the village and the dacoits by firing kill one and injure others, the chasers had a right to arrest the dacoits who had no right of private defence. Under section 46(2) the person who saw the dacoity was entitled to take the assistance of others in effecting arrest [Nazir, AIR 1951 A 3 FB : 1952 (1) All 445 ].

Page 3 of 3 [s 43] Arrest by private person and procedure on such arrest.— If after arrest by a private person for having committed an offence in his presence the accused escapes or is rescued and taken away, the private person has the right to follow and re-arrest him. It is part of the same transaction [Amarendra, AIR 1955 P 106].

The right to arrest must be exercised simultaneously with the commission of the offence. The accused committed murder in the presence of A and escaped. When the accused returned to his house 15 days after, A tried to arrest him and was stabbed by the accused—Held, that the right to arrest did not continue long after the offence [Kolavennu, AIR 1956 AP 156 ].

Section 43 is not confined to substantive offence; it applies also to attempt to commit an offence where such attempt itself is an offence [Dost Md., AIR 1945 L 334], or to commit the abetment of an offence, e.g. abetment of extortion [Raghunath, 5 PLJ 129], or of conspiracy to commit theft or criminal breach of trust [Gouri, 52 C 615].

A sharp distinction exists between sections 37 and 43. Under section 37, a private person must assist a police officer to arrest and that officer must be present; under section 43 the private person may himself arrest. It is not sufficient for a police officer to say or write that a person is a proclaimed offender. It is a matter for Court under section 82 et seq [Murid, 38 Cr LJ 1101].

“Police officer” does not include a Chaukidar or a Dafadar [Nurul Huq, 46 Cal WN 163; Purna, 41 C 17]. He is so in Bihar [Chotu, AIR 1932 P 214].

There must be no avoidable delay in making over the arrested person to the police. The arrestor may himself take him over to the police or send through some other person [Potadu, 11 M 480, Johri, 23 A 226; Parsidhan, 29 A 575]. Keeping him in custody or taking to another place and not to the Thana is an offence under section 342 Indian Penal Code, 1860 [Anant, 27 Cr LJ 1378]. Failure to make over the arrested person to a passing beat constable or detention during night without taking directly to the thana on account of the unearthly hour is not necessarily illegal [Arumuga, AIR 1924 M 384]. Tying up of arrested persons is unwarranted [Bhagirath, 38 Cal WN 584]. [s 43.4] Cases within section 43.— Arrest under bona fide impression that cognizable and non-bailable offence (e.g., abduction, section 366 Indian Penal Code, 1860) is being committed although the case turns up to be otherwise, is protected by section 79 Indian Penal Code, 1860 [Anant, supra]. Two persons climbing the tree and another standing on the ground with a pot of toddy in his hand—arrest of the latter person is legal [Arumuga, 25 Cr LJ 792]. Arrest of person is justified when he enters house with intention of carrying out amours with a married woman [Said Md., AIR 1935 Pesh 83 ]. [s 43.5] Sub-section (3)—Offence.— Contemplates a case where after the arrested person is brought to a police officer there is reason to believe that the offence alleged to have been committed is a non-cognizable one. End of Document

[s 44] Arrest by Magistrate.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER V ARREST OF PERSONS

The Code of Criminal Procedure, 1973 CHAPTER V ARREST OF PERSONS [s 44] Arrest by Magistrate.— (1) When any offence is committed in the presence of a Magistrate, whether Executive or Judicial, within his local jurisdiction, he may himself arrest or order any person to arrest the offender, and may thereupon, subject to the provisions herein contained as to bail, commit the offender to custody. (2) Any Magistrate, whether Executive or Judicial, may at any time arrest or direct the arrest, in his presence, within his local jurisdiction, of any person for whose arrest he is competent at the time and in the circumstances to issue a warrant. [s 44.1] Changes.— Sub-sections (1) and (2) correspond to old sections 64 and 65 respectively. [s 44.2] Scope and application of section 44—[Sub-section (1)].— Offence is wide enough to include offence under section 172-D Indian Penal Code, 1860 [Brahmanand, AIR 1930 A 682]. Magistrate can arrest without complaint a person committing an offence in his presence [Surendra, 13 WR 27], but in so doing he does not take cognizance of the case [Mohan, AIR 1964 Tri 65 ] and he should not try the case on the general principle in section 47 [Venkanna, Ratanlal, UCC 339].

A Magistrate arresting a person under section 44(1) does not act as a “Court”. His detention beyond 24 hours would be illegal if a remand order to custody is not obtained under section 167(1) by producing him before another Magistrate [Hariharanand, AIR 1954 A 601; Mohan, AIR 1964 Tri 65 ]. [s 44.3] Sub-section (2).— Sections 44(2) and 103 (search) proceed on the principle that an officer empowered to authorise another to do an act can do the same act himself. Section 6 of the Bombay Gambling Act, 4 of 1887 is subject to sections 44(2), 103 [Fernand, 31 B 438]. Although there is no provision in the Suppression of Immoral Traffic in Women and Girls Act, 1956, for arrest by the Magistrate himself, he can certainly exercise the power under under section 44(2) [Prem, AIR 1959 A 206]. Directing the arrest of a police officer on the verbal accusation of having demanded a bribe is illegal as the Magistrate could only issue a summons in the first instance for an offence under section 161 of the Indian Penal Code, 1860 [Dindayal, 31 Cr LJ 795]. [But offences under sections 161 and 165 of the Indian Penal Code, 1860 being now cognizable (section 3 of the Prevention of Corruption Act 2 of 1974), the authority of Dindayal’s case is affected to that extent]. Where no cognizance has been taken under section 190, as when the Magistrate has before him only an oral complaint, he is not competent to issue warrant under section 204 and to arrest or order an arrest in his presence, under section 44(2) [Rangachari, 2 Weir 241]. It has been held that a Magistrate may issue a warrant even at the stage where section 41(1) applies. Therefore, section 44(2) clearly authorises the Magistrate to arrest the person also [Ram Narayan, AIR 1958 A 758]. End of Document

[s 45] Protection of members of the Armed Forces from arrest.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER V ARREST OF PERSONS

The Code of Criminal Procedure, 1973 CHAPTER V ARREST OF PERSONS [s 45] Protection of members of the Armed Forces from arrest.— (1) Notwithstanding anything contained in Sections 41 to 44 (both inclusive), no member of the Armed Forces of the Union shall be arrested for anything done or purported to be done by him in the discharge of his official duties except after obtaining the consent of the Central Government. (2) The State Government may, by notification, direct that the provisions of sub-section (1) shall apply to such class or category of the members of the Force charged with the maintenance of public order as may be specified therein, wherever they may be serving, and thereupon the provisions of that subsection shall apply as if for the expression “Central Government” occurring therein, the expression “State Government” were substituted. [s 45.1] STATE AMENDMENT IN SECTION 45 Assam.—The following amendments were made by Assam (Presi) Act 3 of 1980, section 2 (w.e.f. 5 June 1980). Section 45 (2).—In its application to State of Assam for section 45(2) substitute the following :—

(2) The State Government may, by notification, direct that the provisions of sub-section (1) shall apply— (a) to such class or category of the members of the Forces charged with the maintenance of public order, or (b) to such class or category of other public servants (not being persons to whom the provisions of sub-section (1) apply) charged with the maintenance of public order.

as may be specified in the notification wherever they may be serving, and thereupon the provisions of that sub-section shall apply as if for the expression “Central Government” occurring therein, the expression “State Government” were substituted.

COMMENTS [s 45.2] Scope and application of section 45.— This section gives qualified protection to a member of the Armed Forces of the Union only for anything done or purported to be done by him in the discharge of his official duties. Under sub-section (2) a State Government may also by notification extend the immunity to specific categories of members of the forces charged with the maintenance of public order in the State concerned.

Page 2 of 2 [s 45] Protection of members of the Armed Forces from arrest.— [s 45.3] Anything done or purported to be done by him in the discharge of his official duties.— For interpretation of the words we may turn to along series of cases in section 197 under “while acting or purporting to act in the discharge of his official duty”, post. End of Document

[s 46] Arrest how made.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER V ARREST OF PERSONS

The Code of Criminal Procedure, 1973 CHAPTER V ARREST OF PERSONS [s 46] Arrest how made.— (1) In making an arrest the police officer or other person making the same shall actually touch or confine the body of the person to be arrested, unless there be a submission to the custody by word or action: 7[Provided

that where a woman is to be arrested, unless the circumstances indicate to the contrary, her submission to custody on an oral intimation of arrest shall be presumed and, unless the circumstances otherwise require or unless the police officer is a female, the police officer shall not touch the person of the woman for making her arrest.] (2) If such person forcibly resists the endeavour to arrest him, or attempts to evade the arrest, such police officer or other person may use all means necessary to effect the arrest. (3) Nothing in this section gives a right to cause the death of a person who is not accused of an offence punishable with death or with imprisonment for life. 8[(4) Save in exceptional circumstances, no woman shall be arrested after sunset and before sunrise, and where such exceptional circumstances exist, the woman police officer shall, by making a written report, obtain the prior permission of the Judicial Magistrate of the first class within whose local jurisdiction the offence is committed or the arrest is to be made.] [s 46.1] Changes.— Section 46 corresponds to old section 46 verbatim. [s 46.1.1] CrPC (Amendment) Act, 2005 (25 of 2005).— In Section 46 of the principal Act, after sub-section (3), the following sub-section shall be inserted, namely:

(4) Save in exceptional circumstances, no woman shall be arrested after sunset and before sunrise, and where such exceptional circumstances exist, the woman police officer shall, by making a written report, obtain the prior permission of the Judicial Magistrate of the first class within whose local jurisdiction the offence is committed or the arrest is to be made.

Notes on Clauses

A new sub-section (4) is being added to Section 46 to prohibit arrest of a woman after sunset and before sunrise except in unavoidable circumstances. (Notes on Clauses, Clause 6)

Page 2 of 4 [s 46] Arrest how made.—

This amendment in the section has come into force w.e.f. 23 June 2006 vide Notification No. S.O. 923(E), dt. 21 June 2006. [s 46.1.2] CrPC (Amendment) Act, 2008 (5 of 2009).— This Amendment Act has added a proviso to sub-section (1) of section 46 so as to provide that where a woman is to be arrested her submission to custody on an oral intimation of arrest shall be presumed, unless the circumstances indicate to the contrary, and unless the circumstances otherwise require or unless the police officer is a female, the police officer shall not touch the person of the woman for making her arrest [vide Notes on Clauses, Clause 7]. [s 46.2] Scope and application of section 46.— Arrest is made by actual restraint of liberty or submission to custody. Unless there is submission to custody, actual contact is necessary to effect it [U The, AIR 1930 R 131]. Informal detention or restraint of any kind by the police is not authorised by law [see Madan, 1885 AWN 59 FB, Gobardhan, 9 A 528, 566]. A mere oral declaration of arrest without actual touch is insufficient unless there is submission to custody [Harmohanlal, 30 Cr LJ 128; Aludomal, 17 Cr LJ 87]. Section 46 does not contemplate any formality before a person be said to be taken in custody; submission to the custody by word or action by a person is sufficient [Deoman, AIR 1960 SC 1125 , 1131 : 1961, (1) SCR 14; followed in Gurbaksh Singh Sibbia v State of Punjab, AIR 1980 SC 1632 : 1980 Cr LJ 1125 : (1980) 2 SCC 565 ]. By proceeding towards thana as directed by police accused submits to arrest. Attempt to escape afterwards is offence [Santokhi, AIR 1933 P 149 : 12 P 241 SB; State of Bihar v Mohanlal Agarwalla, AIR 1967 Pat 63 : 1967 Cr LJ 237 ; Bharosa, AIR 1941 N 86; Lalit, AIR 49 C 169 : Jalla, AIR 1931 L 278]. Distinction between arrest and custody [Harbansingh Sardar Lenasingh v State, AIR 1970 Bom 79 : 1970 Cr LJ 325 ].

Section 46 applies whether the arrest is with warrant or without warrant [Roshan Beevi v Joint Secretary to Govt. of Tamil Nadu, AIR 1984 NOC (Mad) 103 : (1984) Cr LJ 134 (FB) (Mad); Kesar v State of J&K, AIR 1963 J&K 23 , 24].

Section 46 of the Code of Criminal Procedure, 1973 deals with “Arrest how made”. The word “arrest” used in section 46 relates to a formal arrest whereas section 27 of the Indian Evidence Act talks about custody of a person accused of an offence. The contention that section 27 of the Indian Evidence Act would be operable only after formal arrest under section 46(1) of the Code, cannot be accepted [Vikram Singh v State of Punjab, AIR 2010 SC 1007 : (2010) 3 SCC 56 : 2010 (1) Scale 633 ]. [s 46.3] Modes of arrest.— Section 46 envisages three modes of arrest—(a) submission to custody, (b) touching the body physically, or (c) confining the body.

Arrest is a restraint on personal liberty. Unless there is submission to custody (by words or by conduct), arrest must be made by actual contact [Thaniel Victor v The State, (1991) Cr LJ 2416 Mad : 1991 (1) Crimes 354 : 1991 (1) CrLC 806]. [s 46.4] Arrest.— The word “arrest”, when used in its ordinary sense, means the apprehension or restraint on, or the deprivation of, ones personal liberty. The question whether the person is under arrest or not, depends not on the legality of the arrest but on whether he has been deprived of his personal liberty to go wherever he pleases. Where used in the procedure connected with criminal offences, an arrest consists in the taking into custody of another person under authority empowered by law for the purpose of holding or detaining him to answer a criminal charge or preventing the commission of a criminal offence. [Re Roshan Beevi Joint Secretary to Govt. of Tamil Nadu, AIR 1984 NOC (Mad) 103 : 1984 Cr LJ 134 (FB)]. [s 46.5] Notification of substance.— Person arresting shall notify the substance of the warrant and show it if demanded [section 75 : Appaswamy,

Page 3 of 4 [s 46] Arrest how made.— 47 M 442]. Person arresting without warrant shall forthwith communicate full particulars or grounds for arrest to the arrested person and, if the offence is bailable the police officer shall inform him that he is entitled to be released on bail and arrange for sureties (section 50). Arrest without warrant (sections 41-44, 48, 50, 55-60), or with warrant (sections 70-81). When unauthorised by police or by anyone else arrest may amount to wrongful confinement (section 342 of the Indian Penal Code, 1860). Resistance to lawful arrest is punishable (sections 224, 225 & 225-B of the Indian Penal Code, 1860), but one can escape from illegal arrest [Appaswamy supra]. Arrest by police officers (sections 37,41,55 & 74); by private person (section 43); by Magistrate verbally (sections 37 & 44); by warrant (sections 87, 89, 107, 113, 187, 204 & 437); by High Court (section 390). [s 46.6] Validity of trial.— The validity of a trial is not affected by any irregularity in arrest [Parbhu, AIR 1944 PC 73 , 74 : 71 IA 75]. Illegality in arrest is no bar to taking cognizance of an offence or its trial if the Magistrate has jurisdiction to try the offence [Madho, 31 C 557; Ravalu 26 M 124; Subramania, AIR 1941 M 181; Nagarmal, AIR 1941 N 338; Vinayak, 35 B 225], but it becomes material on a charge of resistance to or escape from lawful custody [Appaswamy, supra; Jagannath, AIR 1932 A 227; Kartick, 33 Cr LJ 706]. The manner of executing detention order under Defence of India Rules, 1962 is required to be in conformity with section 46 and not sections 74 and 75—Distinction between warrant of arrest and order for detention [MN Ugrappa v Govt. of Mysore, AIR 1966 Mys 207 : 1966 Cr LJ 929 ]. [s 46.7] Other person—[Sub-section (2)].— Example given, private person (sections 43, 73); aid in arrest (sections 37, 38); Magistrate (section 44); person who had lawful custody of another who has escaped (section 60), military officer (sections 130-131). [s 46.8] All means necessary.— If force is required no more force should be employed in effecting arrest than is justly necessary. Whether violence is justifiable depends on whether the means employed were such as an ordinarily prudent man could make use of, who had no intention of doing any serious injury [Protab, 1 WR 9]. “All means necessary” includes help from other persons and it also applies to arrest by private citizen [Sheobalak, AIR 1948 A 103; 1948 All 3 ; Nazir, AIR 1951 A 3 FB; Kolavennu, AIR 1956 AP 156 ; Gouri, 56C 615 : AIR 1925 L 884]. Police officer making arrest without observing the provisions of section 75 may be able to justify his action under section 46(2) [Darbesh, 56 C 881]. [s 46.9] Sub-section (3).— Police officer in attempting to re-arrest an escaped thief has no right to shoot [Dakhi, AIR 1955 A 379]. [s 46.10] Arrest of woman.— Section 46(4) of the Code of Criminal Procedure, 1973 is enacted in pursuance of judgment of the Supreme Court in Maharashtra v Christian Community Welfare Council of India, AIR 2004 SC 7 : 2004 Cr LJ 14 : (2003) 8 SCC 546 : 2003 (4) Crimes 367 (SC). Sub-section (4) of section 46 of the Code of Criminal Procedure, 1973 mandates that no woman shall be arrested after sunset and before sunrise save in exceptional circumstances, without the prior permission of the Judicial Magistrate, First Class, in whose local jurisdiction the offence is committed or the arrest is to be made. The requirement of the provisions of sub-section (4) of section 46 of the Code is two-fold. If the Police Officer wants to arrest the woman after sunset and before sunrise, there must exist exceptional circumstances for such arrest. In cases wherein such exceptional circumstances do exist, a Lady Police Officer shall make a written report and obtain prior permission of the Judicial Magistrate, First Class in whose jurisdiction the offence is committed or the arrest is to be made [Bharati S. Khandhar v Maruti Govind Jadhav, 2013 (2) Bom CR (Cri) 643 : 2013 Cr LJ 677 (Bom)].

As per sub-section (4) of section 46 of the Code of Criminal Procedure, 1973, a woman can be arrested only by a woman police officer, by making a written report and obtaining the prior permission of the Elaka Judicial Magistrate, where either the offence is committed or arrest is to be made. However, prior permission of the Elaka Judicial Magistrate would not be required in exceptional circumstances [Prema Shah v State of Uttarakhand, 2014 (1) Crimes 237 (Uttarakhand)]. [s 46.11] Payment of compensation.— A person dying in police custody or in police station is entitled to compensation both in public law and private law [Nanjkhujan Mungsong v Thokcham Ongbi Gambhini Devi, 2007 Cr LJ 1491 (1494) (Gau)]. Accused was a surrendered militant involved in kidnapping of a minor girl. He tried to run away but was chased and gun shots were fired in order to prevent absconding.

Page 4 of 4 [s 46] Arrest how made.—

Thus death was caused in police action behind which there was neither any malice nor enmity. It was held that accused appellants were public servant and alleged offence was committed during the course of employment and in discharge of their official duty. Hence it was a fit case where compensation should be paid by State [Nanjkhujan Mungsong v Thokcham Ongbi Gambhini Devi, 2007 Cr LJ 1491 (Gau)].

7

Inserted by the Code of Criminal Procedure (Amendment) Act, 2008 (5 of 2009), Section 7 (w.e.f. 31 December 2009).

8

Inserted by the Code of Criminal Procedure (Amendment) Act, 2005 (25 of 2005), section 6 (w.e.f. 23 June 2006 vide Notification No. SO 923(E), dated 21 June 2006).

End of Document

[s 47] Search of place entered by person sought to be arrested.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER V ARREST OF PERSONS

The Code of Criminal Procedure, 1973 CHAPTER V ARREST OF PERSONS [s 47] Search of place entered by person sought to be arrested.— (1) If any person acting under a warrant of arrest, or any police officer having authority to arrest, has reason to believe that the person to be arrested has entered into, or is within, any place, any person residing in, or being in charge of, such place shall, on demand of such person acting as aforesaid or such police officer, allow him free ingress thereto, and afford all reasonable facilities for a search therein. (2) If ingress to such place cannot be obtained under sub-section (1), it shall be lawful in any case for a person acting under a warrant and in any case in which a warrant may issue, but cannot be obtained without affording the person to be arrested an opportunity of escape, for a police officer to enter such place and search therein, and in order to effect an entrance into such place, to break open any outer or inner door or window of any house or place, whether that of the person to be arrested or of any other person, if after notification of his authority and purpose, and demand of admittance duly made, he cannot otherwise obtain admittance : Provided that, if any such place is an apartment in the actual occupancy of a female (not being the person to be arrested) who, according to custom, does not appear in public, such person or police officer shall, before entering such apartment, give notice to such female that she is at liberty to withdraw and shall afford her every reasonable facility for withdrawing, and may then break open the apartment and enter it. (3) Any police officer or other person authorised to make an arrest may break open any outer or inner door or window of any house or place in order to liberate himself or any other person who, having lawfully entered for the purpose of making an arrest, is detained therein. [s 47.1] Changes.— Sub-sections (1), (2) and (3) correspond to old sections 47, 48 and 49 respectively. The word “female” has been substituted for “woman”. [s 47.2] Provision as to search.— See Sections 93 to 92, 153 and 165. [s 47.3] Provisions as to arrest (Sections 47, 48, 49, 50 & 50A).— Sections 47, 48, 49, 50 and 50A are provisions post arrest and enabling the police officer to impose restraint but at the same time obliging him to inform the person arrested of grounds of arrest and his right to appeal. Section 50A has been added to the Code of Criminal Procedure, 1973 wherein the police officer now is obliged to giving information as regards the arrest and place where the arrested person is being held forthwith to any of his friends, relatives or such others persons as may be disclosed or nominated by the arrested person for giving information. Section 52 empowers the officer to seize offensive weapons. Section 53 deals with examination of

Page 2 of 2 [s 47] Search of place entered by person sought to be arrested.— accused by a medical practitioner at the request of the police officer [Pragya Singh Thakur v State of Maharashtra, 2010 Cr LJ 3267 (3280) (Bom)]. [s 47.4] Scope and application of section 47—[Sub-section (1)].— The sub-section is not intended to restrict the powers of the police to enter the place to be searched; on the contrary it is provision for compelling house-holders to afford the police facilities in carrying out their duties and sub-section (2) provides that if difficulties are placed, force may be used to obtain ingress [Ramesh, 41 C 350, 376]. An entry through an open door to arrest an offender on suspicion under section 41 is not illegal, though no demand of entry was made [Ramesh, supra; see Daitari, AIR 1956 Ori 97 ]. The words “any person residing” may make any one residing in the place liable under the section, however short his residence may be, e.g., a guest, a visitor or even a third person found there. [s 47.5] Sub-section (2)—Arrest—Suspected person.— If in order to arrest a suspected person the police officer enters into a building his action is prima facie justifiable [Clarke, 36 C 443; on appeal 39 C 953 : 39 IA 163]. Where the door is open, it is not required that the police officer should wait and make a formal demand to the occupier for entry in the house [Daitari, AIR 1956 Ori 97 ]. Entry of police into Muth for arrest and search by breaking open back-doors though the main gate remained open and without demanding the head of Muth to allow them to enter, is illegal [Pagla Baba, AIR 1957 Ori 130 ]. [s 47.6] Refusal to search.— In an appropriate case, the Court can issue mandamus directing the police to enter upon premises where wanton destruction is going on Hindustani Andolan v State of Punjab, AIR 1984 SC 582 : (1984) 1 SCC 204 : 1984 Cr LJ 299 (SC).

However, as a rule the police may like to act cautiously in matters of search into a place of worship [Superintendent v Extajuddeh, AIR 1946 Cal 334 ]. End of Document

[s 48] Pursuit of offenders into other jurisdictions.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER V ARREST OF PERSONS

The Code of Criminal Procedure, 1973 CHAPTER V ARREST OF PERSONS [s 48] Pursuit of offenders into other jurisdictions.— A police officer may, for the purpose of arresting without warrant any person whom he is authorised to arrest, pursue such person into any place in India. [s 48.1] Changes.— Section 48 corresponds to old section 58 with omission of the words “under this Chapter” after “arrest”. [s 48.2] Scope and application of section 48.— The section empowers a police officer to pursue a person at any place in India for the purpose of arrest without warrant (i.e., under section 41). So, a police officer of one thana can go to another thana [Entajuddi, AIR 1946 C 314] or to another State [Manbodh, AIR 1955 N 97] for arresting an accused; see also section 156(2).

End of Document

[s 49] No unnecessary restraint.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER V ARREST OF PERSONS

The Code of Criminal Procedure, 1973 CHAPTER V ARREST OF PERSONS [s 49] No unnecessary restraint.— The person arrested shall not be subjected to more restraint than is necessary to prevent his escape. [s 49.1] Changes.— Section 49 corresponds to old section 50, verbatim. [s 49.2] Scope and application of section 49.— There should be no more restraint than is justly necessary to prevent escape, i.e., reasonable force may be used for the purpose, if necessary; but before keeping a person under any form of restraint there must be an arrest. Restraint or detention without arrest is illegal. Person arrested shall be taken before a Magistrate or officer in charge of a police station without unnecessary delay (sections 56, 57, see also Article 22 of the Constitution).

End of Document

[s 50] Person arrested to be informed of grounds of arrest and of the right to bail.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER V ARREST OF PERSONS

The Code of Criminal Procedure, 1973 CHAPTER V ARREST OF PERSONS [s 50] Person arrested to be informed of grounds of arrest and of the right to bail.— (1) Every police officer or other person arresting any person without warrant shall forthwith communicate to him full particulars of the offence for which he is arrested or other grounds for such arrest. (2) Where a police officer arrests without warrant any person other than a person accused of a nonbailable offence, he shall inform the person arrested that he is entitled to be released on bail and that he may arrange for sureties on his behalf. [s 50.1] Scope and application of section 50.— This section provides that any person arrested without warrant shall immediately be informed of the grounds of his arrest, and, if the arrest is made in a bailable case the person shall be informed of his right to be released on bail. A similar provision in case of arrest with warrant obtains in section 75. Arrest without compliance of this provision will be illegal and will make the officer or person making such illegal arrest liable to all such remedies as are available in case of an illegal arrest. [See section 75]. Section 50 is mandatory. If particulars of offence are not communicated to an arrested person his arrest and detention are illegal. If he alleges by affidavit that he was not communicated with full particulars of the offence the police officer’s diary cannot be perused to verify his claim of oral communication of such particulars [Ajitkumar Sarmah v State of Assam, 1976 Cr LJ 1303 (Gau)]. When the provisions of section 50 have not been complied with, the non-consideration of such nonconformance by the Court when considering the question of bail operates to the prejudice of the arrested person and the order is liable to be set aside on this ground [Govinda Pd v State of WB, 1975 Cr LJ 1249 : 79 Cal WN 474].

Section 50(1) of the Code is in conformity with the provisions of Article 22(1) of the Constitution of India. As per this section, it is mandatory on the part of the police officer or other person arresting any person without warrant to communicate immediately such person the following things (i) full particulars of the offences for which he is arrested or (ii) the grounds for such arrest and as per sub-section (2) of section 50 of the Code of Criminal Procedure, 1973, the person concerned is to be communicated by the police officer that he is entitled to be released on bail in case of bailable offence and ask him to arrange sureties for such release [N. Ratnakumari v State of Odisha, 2014 Cr LJ 4433 (Ori) : 2014 (4) RCR (Cri) 955 ].

The section should be strictly complied with [Ajit Kumar Sarmah v State of Assam, 1976 Cr LJ 1303 (Gau)]. [s 50.2] Ground of arrest.— It is necessary that the grounds of arrest and full particulars of offence must be informed to the arrestee. Once this duty is cast upon the arresting officer, he must make proper record of what he does in pursuance of the

Page 2 of 3 [s 50] Person arrested to be informed of grounds of arrest and of the right to bail.— requirement of the law [Vikram v State, 1996 Cr LJ 1536 at p 1538 (All) : 1996 All LJ 672 : 1996 (4) Cur Cr R 183 (FB)].

Where a fugitive accused is arrested pursuant to a warrant of arrest issued by the Chief Judicial Magistrate, he need not be informed of the grounds of arrest and of right to bail [P. Pushpavarthy v Ministry of External Affairs, 2013 (3) Mad LJ (Cr) 129 : 2013 Cr LJ 4420 (Mad—DB)]. [s 50.3] Preventive detention.— Although section 50(1) is widely worded it does not appear to be meant for arrest under a law for preventive detention, as the latter law must be taken to be self contained. [s 50.4] Article 22(1).— Section 50(1) carries out the mandate of Article 22(1) of the Constitution. [Govind Prasad v State of WB, (1975) Cr LJ 1249 (Cal) : 79 Cal WN 474; Cf Re Madhu Limaye of 1969 Cr LJ 1440 : (1969) 1 SCC 292 : 1969 SC 1014 -1019. [s 50.5] Form.— But Section 5(1) does not prescribe written communication. It cannot be interpreted in the light of Article 22 (5) of the Constitution [Soni Natvarlal Prabhudas v State of Gujarat, (1983) Cr LJ 1124 (Guj)].

The grounds can be communicated even impliedly by conduct [Pranab Chatterjee v State of Bihar, (1970) 3 SCC 926 : 1971 SCC (Cri) 170 ]. [s 50.6] Informing the accused.— The accused must be informed of the bare necessary facts leading to his arrest. It is difficult to prescribe any form in which the information must be given; an arrested person must, however, know the grounds and reasons and the facts that in respect of whom and by whom the offence is said to be committed as well as the date, time and place of the offence etc. [Vikram v State, 1996 Cr LJ 1536 at p 1539 (All) : 1996 All LJ 672 : 1996 (4) Cur Cr R 183 (FB)]. [s 50.7] Duty of police.— It is the duty of police to disclose the particulars of pending case or cases of an accused in which he is not yet been arrested, to the Magistrate to whom the police forwards the accused on arrest in a particular case, so that the accused comes to know that he is likely to be arrested at any time in those pending cases. Such particulars should be described in the forwarding report by which the accused is produced before the Magistrate or disclosed such particulars at any time to the Magistrate before the accused is enlarged on bail [Dr A. Loso v State of Manipur, (1988) Cr LJ 1458 : 1987 (3) Crimes 314 : 1987 (1) Gau LR 292 (Gau)].

Compliance with section 50(2) does not dispense with the need to comply with section 50(1) [State of MP v Shobharam, 1968 SC 1010 , 1017]. Ofcourse the police must give information about the right to base [Sheela Barse v State of Maharashtra, AIR 1983 SC 378 : 1983 Cr LJ 642 : (1983) 2 SCC 96 : 1983 (1) Crimes 602 ].

Arrest is not a must in every cognizable case. It is the discretion of the Police Officer to arrest or not to arrest, and the discretion cannot be an arbitrary one but must be guided by the principles laid down by the Supreme Court in. [Joginder Kumar v State of UP, AIR 1994 SC 1349 : 1994 Cr LJ 1981 : 1994 (4) SCC 260 : 1994 (2) Crimes 106 ]. Very often, there is no necessity to arrest at all [Amarawati v State of UP, 1996 Cr LJ 1347 (All) : 1996 All LJ 609 : 1996 IJR 233].

An arrestee must be communicated the grounds of his arrest, it is a constitutional safeguard provided under Pt III of the Constitution. He will be within his rights to point out that the said provisions have not been complied with as soon as produced before a Magistrate within twenty four hours of his arrest [Vikram v State, 1996 Cr LJ 1536 at p 1540 (All) : 1996 (3) Rec Cr R 5 : 1996 (20) All Cr R 308 (FB)].

Whether the provisions of section 50(1) have been complied with in a particular case is a question of fact and

Page 3 of 3 [s 50] Person arrested to be informed of grounds of arrest and of the right to bail.— has to be adjudicated on the basis of material on record of the case [Rajendra Kumar v State of Rajasthan, AIR 2003 SC 3196 : (2003) 10 SCC 21 : 2003 Cr LJ 4344 : 2003 (4) Crimes 141 ]. End of Document

[s 50A Obligation of person making arrest to inform about the arrest, etc., to a nominated person.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER V ARREST OF PERSONS

The Code of Criminal Procedure, 1973 CHAPTER V ARREST OF PERSONS 9[s

50A Obligation of person making arrest to inform about the arrest, etc., to a nominated person.— Every police officer or other person making any arrest under this Code shall forthwith give the information regarding such arrest and place where the arrested person is being held to any of his friends, relatives or such other persons as may be disclosed or nominated by the arrested person for the purpose of giving such information. (2) The police officer shall inform the arrested person of his rights under sub-section (1) as soon as he is brought to the police station. (3) An entry of the fact as to who has been informed of the arrest of such person shall be made in a book to be kept in the police station in such form as may be prescribed in this behalf by the State Government. (4) It shall be the duty of the Magistrate before whom such arrested person is produced, to satisfy himself that the requirements of sub-section (2) and sub-section (3) have been complied with in respect of such arrested person.] [s 50A.1] Changes— CrPC (Amendment) Act, 2005 (25 of 2005) .— This section is inserted by the Code of Criminal Procedure, 1973 Amendment Act, 2005 (25 of 2005). Section 50A requires the police to give information about the arrest of the person as well as the place where he is being held to any one of his friends, relatives or such other persons who may be nominated by him for giving such information.

This new section has come into force w.e.f. 23 June 2006 vide Notification No. S.O. 923(E), dt. 21 June 2006. [s 50A.2] Scope and Application of section 50A.— Section 50-A requires police to give information about the arrest of person as well as the place where he is being held to any one who may be nominated by him for sending such information. It further obliged the Magistrate concerned to satisfy himself about the fulfilment of the requirements of the provisions when person arrested is produced before him in order to ensure compliance of law. Provisions of section 50A are mandatory [Ajeet Singh v State of UP, 2007 Cr LJ 170 (All-FB)].

The procedure relating to arrest and the provisions relating to rights of the arrested person are provided in sections 41B, 50A and 54 of the Code of Criminal Procedure, 1973 read together. Section 41B of the Code requires a police officer making an arrest to prepare a memorandum of arrest, which shall be attested by at least one witness who is a member of the family of the person arrested or a respectable member of the locality where the arrest is made. The police officer is also mandated to inform the arrested person, if the memorandum

Page 2 of 2 [s 50A Obligation of person making arrest to inform about the arrest, etc., to a nominated person.— of arrest is not attested by a member of his family, that he has a right to have a relative or a friend named by him to be informed of his arrest. Under section 50, every police officer is obliged to inform the arrested person of his rights including the full particulars of the offence for which he has been arrested or other grounds for such arrest. Further, Section 50-A casts an obligation on the person making the arrest to inform about the arrest, the place where the arrested person is being held and the right of the arrested person to be brought to the police station, to the person so nominated by the arrested person. Under section 54 of the Code, when any person is arrested, it is obligatory for the arresting authority to ensure that he is got examined by a medical officer in the service of the Central or the State Government or by a registered medical practitioner. The medical officer or registered medical practitioner is mandated to prepare a record of such examination including any injury or mark of violence on the person arrested [see Jitendra Singh v State of UP, 2013 (9) Scale 18 : 2013 (5) Supreme 232 ].

Intimation of arrest should be communicated to the relatives or the friends of the person concerned through anyone of the legally recognised modes, which would ensure the right of the person arrested under preventive detention. If such intimation of arrest has not been made effectively, then, it would confer a right upon the arrestee to impugn the arrest effected on him and thereby, the detention order would get vitiated on that ground also [Shanmugham v State of TN, 2013 (4) Mad LJ (Cr) 1 : 2014 Cr LJ 1223 (Mad)].

9

Inserted by the Code of Criminal Procedure (Amendment) Act, 2005 (25 of 2005), section 7 (w.e.f. 23 June 2006 vide Notification No. SO 923(E), dated 21 June 2006).

End of Document

[s 51] Search of arrested person.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER V ARREST OF PERSONS

The Code of Criminal Procedure, 1973 CHAPTER V ARREST OF PERSONS [s 51] Search of arrested person.— (1) Whenever a person is arrested by a police officer under a warrant which does not provide for the taking of bail, or under a warrant which provides for the taking of bail but the person arrested cannot furnish bail, and whenever a person is arrested without warrant, or by a private person under a warrant and cannot legally be admitted to bail or is unable to furnish bail, the officer making the arrest or, when the arrest is made by a private person, the police officer to whom he makes over the person arrested, may search such person, and place in safe custody all articles, other than necessary wearing-apparel, found upon him and where any article is seized from the arrested person, a receipt showing the articles taken in possession by the police officer shall be given to such person. (2) Whenever it is necessary to cause a female to be searched, the search shall be made by another female with strict regard to decency. [s 51.1] Changes.— (1) Sub-section (1) corresponds to old section 51.

(2) Sub-section (2) corresponds to old section 52 with substitution of the word “female” for “women”.

The addition of the certain words in sub-section (1), ensures proper accounting of articles seized from arrested persons. [s 51.2] Scope and application of section 51 : [Sub-section (1)] .— (See also section 52). It is the only provision which allows a police officer to make a personal search of arrested persons, but it comes into operation after arrest (with or without warrant) and not before [Ramain, ILR 1942 All 914 ; AIR 1942 A 424]. No search witness is legally necessary. If there is any and such witness is found unreliable, the evidence of the police officer can be looked to [Dhanpat, AIR 1960 P 582]. Search by the police of the person of the accused does not contravene Article 20(3), Constitution [Swaranalingam, AIR 1955 M 685]. Search should be made in the presence of respectable and independent witnesses [Dwarka, AIR 1954 A 106]. But this provision under section 51, as has been held, does not permit medical examination of the accused without his consent. Forcible examination of the body of an arrested person without his consent, through a doctor for procuring evidence against him is not permissible and amounts to assault (per Lord Williams J). Examination of the accused by doctor not for benefit of health but by way of a second search is not permitted in law without his consent (per Ghose J). [Bhondar, 35 Cal WN 1212 : AIR 1931 C 601]. The consent need not be in writing [Hanuman, 36 Cal WN 1152 : AIR 1932 C 723]. It has, however, been held that an accused person can be taken to a doctor for the examination of injuries on his body to ascertain whether he could not have participated in an occurrence. So, if an arrested person under intoxication is taken to a doctor who records his physical features and other symptoms, it is not hit by Article 20(3), Constitution [Palani Goundan, AIR 1957 M 546”contra : The police have no legal right to take an accused by force to a doctor to examine whether he was

Page 2 of 3 [s 51] Search of arrested person.— intoxicated and he cannot be convicted under section 353 of the Indian Penal Code, 1860 for assault and escape as he had the right of private defence [Deoman, AIR 1959 B 284 (Bhondar, supra and Halsbury, 3rd Edn, vol 10, p 742 referred to)]. Examination of the body of the accused often reveals valuable evidence. It may, however, be noticed that therefore, the lacuna in the matter has now been removed by insertion of a new provision in a separate section (section 53) specifically authorising medical examination of an accused person.

Where the substantive evidence adduced by the prosecution is cogent, trustworthy and consistent with the material particulars of the prosecution case, the non-observance of the procedure contemplated under section 51 and section 100(7) of the Code of Criminal Procedure, 1973, by itself would not render such evidence untrustworthy or unreliable [Salim Abdul Razak Baig v State of Maharashtra, 2011 Cr LJ (NOC) 445 (Bom)]. [s 51.3] Witness.— Presence of witnesses is not required by law for a search under section 51 (unlike section 100). [State of Bihar v Kapil Singh, AIR 1969 SC 53 : 1969 Cr LJ 279 ] but it is required by UP Police Regulations, Dwarka v State, AIR 1954 All 108 ].

Section 51(2) is in harmony with the general approach of the law to respect privacy of. Nawal Thakur v State of HP, 1985 Cr LJ 1729 paras 10–11 : ILR 1984 HP 875 (HP) DB].

Search was said to be conducted at a populous area of metropolis which was a commercial area. A pistol was recovered. But, no independent was available. City people generally are not willing to become search witness. The evidence of the police officer that nobody was willing to stand as a witness cannot, therefore, be spurned down as improbable [Manish v State, AIR 2001 SC 93 : 2001 Cr LJ 133 : (2001) 1 SCC 596 : 2000 (4) Crimes 171 (SC)].

Male witnesses standing at a distance and witnessing search does not invalidate the search [Kamalabar Jethamal v State of Maharashtra, AIR 1962 SC 1189 : 1962 (2) Cr LJ 273 ].

The purpose of the search need not be for something definite, e.g., an incriminating article [Bhondar, supra Ghose J]. Private person may arrest [section 43] but cannot search. Procedure after seizure of property under section 51 [section 457].

In this connection reference may be made to Article 20(3) of the Constitution which is a guarantee to the accused against testimonial compulsion. But any incriminating object, e.g., a stolen article or document or other form of evidence can be seized from the person of the accused, or if he happens to swallow a stolen property he can be taken to a doctor with a view to have Xrayed or the article extracted. Similarly, a police officer may seize a blood stained cloth worn by a person charged with murder [Palani Goundan, supra; Subayya, AIR 1959 M 296]. Incriminating documents, things etc., which are in the possession of the accused may also be seized by issue of a search warrant, though the Court cannot direct him to produce them [see Sharma MP v Satish Chandra, AIR 1954 SC 300 : 1954 SCR 1077 : 1954 Cr LJ 865 ]. The principle appears to be that though an accused cannot be compelled to produce any evidence against himself, it can be seized under process of law from the custody or person of the accused by the issue of a search warrant.

The constitutional protection in Article 20(3) prohibits compulsion or force in obtaining oral or written testimony. An accused has the right to decline to produce any such incriminatory document. Relying on Sharma’s case (supra) it was held in many cases that the issue of a compulsory process for the production of any document which is reasonably likely to support the prosecution case infringed Article 20(3). But these observations in Sharma’s case were declared subsequently by the Supreme Court as obiter (see Md. Dastagir v State of Madras, AIR 1960 SC 756 : 1960 Cr LJ 1159 ; Kathikalu, 1962, (3) SCR 10 : AIR 1961 SC 1808 ). In view of the decision of the Supreme Court in Kathikalu, supra, which has the effect of confining the privilege under Article 20(3) to testimony, oral or written, that privilege has also the least chance of attaching to non-testimonial physical evidence provided for in section 53 as stated above. The object has been fully treated in the notes to section 11, post: “Person: Whether it Includes Accused”.

Page 3 of 3 [s 51] Search of arrested person.—

Where a person is arrested under section 41(1)(d) on suspicion that he was carrying stolen property and on a search under section 51 gold and silver is seized under section 102, section 457 provides the procedure in that behalf. Further, Regulation 165 of the Uttar Pradesh Police Regulations provides a detailed procedure [Kasturilal Ralia Ram Jain v State of UP, AIR 1965 SC 1039 : 1965 Cr LJ 144 ].

Evidence of Police officer affecting recovery cannot be discarded merely because panch witnesses are turned hostile [Vahaja Revaji Thakore v State of Gujarat, 2004 Cr LJ 119 : 2004 (1) Guj LR 777 : 2003 (3) Guj LH 283 (Guj)]. [s 51.4] Sub-section (2)—Search.— If in the search of the person of a woman there is some irregularity (i.e., not observing that all men folk had actually left the place of search), it is open to the Court to accept the evidence of those men who saw the recovery of the article and such finding will not be disturbed by the Supreme Court [Kamalabai Jethamal v State of Maharashtra, AIR 1962 SC 1189 : 1962 (2) Cr LJ 273 : 1962, Supp (2), SCR 632]. [s 51.5] Kerala Protection of River Banks and Regulation of Removal of Sand Act.— A vehicle carrying sand confiscated under Kerala Protection of River Banks and Regulation of Removal of Sand Act, will be dealt with according to the procedure laid down under the Act and not under section 102, Code of Criminal Procedure, 1973 [Moosakoya v State of Kerala, 2008 Cr LJ 2388 (2396) (Ker—DB)]. End of Document

[s 52] Power to seize offensive weapons.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER V ARREST OF PERSONS

The Code of Criminal Procedure, 1973 CHAPTER V ARREST OF PERSONS [s 52] Power to seize offensive weapons.— The officer or other person making any arrest under this Code may take from the person arrested any offensive weapons which he has about his person, and shall deliver all weapons so taken to the Court or officer before which or whom the officer or person making the arrest is required by this Code to produce the person arrested. [s 52.1] Changes.— Section 52 corresponds to old section 53 verbatim. See notes to section 51.

End of Document

[s 53] Examination of accused by medical practitioner at the request of police officer.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER V ARREST OF PERSONS

The Code of Criminal Procedure, 1973 CHAPTER V ARREST OF PERSONS [s 53] Examination of accused by medical practitioner at the request of police officer.— (1) When a person is arrested on a charge of committing an offence of such a nature and alleged to have been committed under such circumstances that there are reasonable grounds for believing that an examination of his person will afford evidence as to the commission of an offence, it shall be lawful for a registered medical practitioner, acting at the request of a police officer not below the rank of subinspector, and for any person acting in good faith in his aid and under his direction, to make such an examination of the person arrested as is reasonably necessary in order to ascertain the facts which may afford such evidence, and to use such force as is reasonably necessary for that purpose. (2) Whenever the person of a female is to be examined under this section, the examination shall be made only by, or under the supervision of, a female registered medical practitioner. 10[Explanation.—In

this section and in sections 53-A and 54,—

(a) “examination” shall include the examination of blood, blood-stains, semen, swabs in case of sexual offences, sputum and sweat, hair samples and finger nail clippings by the use of modern and scientific techniques including DNA profiling and such other tests which the registered medical practitioner thinks necessary in a particular case; (b) “registered medical practitioner” means a medical practitioner who possess any medical qualification as defined in clause (h) of section 2 of the Indian Medical Council Act, 1956 (102 of 1956) and whose name has been entered in a State Medical Register.] [s 53.1] Changes—CrPC (Amendment) Act, 2005 (25 of 2005).— The present explanation has been substituted for the old explanation appended to the section, by CrPC Amendment Act, 2005 (25 of 2005). Clause (1) is a new clause, it defines the word “examination” for the purposes of this section and sections 53-A and 54.

Clause (b) of the explanation reproduces the old explanation” with verbal changes.

Notes on Clauses

Page 2 of 4 [s 53] Examination of accused by medical practitioner at the request of police officer.—

This clause seeks to insert an Explanation to Section 53 to explain the meaning of the expres-sions “examination” and “registered medical practitioner” appearing in Sections 53, 53-A and 54. (Notes on Clauses, Clause 8)

This amendment in the section has come into force w.e.f. 23 June 2006 vide Notification No. S.O. 923(E), dt. 21 June 2006. [s 53.2] Scope and application of section 53.— This section authorises an examination of the arrested person by a registered medical practitioner at the request of a police officer, if from the nature of the alleged offence or from the circumstances under which it was alleged to have been committed, there is reasonable ground for believing that such an examination will afford evidence. A specific legal provision in this regard has been considered necessary because under the existing general provision relating to the search of an arrested person under section 51 forcible medical examination of the body of any accused cannot be held without his consent [Bhondar, AIR 1931 C 60; Hanuman, AIR 1932 C 723; Deoman, AIR 1959 B 284]. Such a provision would not offend Article 20 (3) of the Constitution [Kathikalu, AIR 1961 SC 1808 ]. As to the scope of section 53, see further (i) Ananth Kumar Naik v State of AP, [1977 Cr LJ 1797 (AP)], (ii) Jamshed v State of UP, [CrLJ 1680 (All) : 1976 All Cr R 87 : 1976 All WC 466], (iii) Anil Anantrao Lokhande v State of Maharashtra, [1981 Cr LJ 125 , 132 (Bom) : 1980 Bom CR 516 : 1980 MahLJ 849 (DB)].

An accused can be asked to give blood sample by the Court, in the course of an inquiry or trial. Even an accused person on bail would fall within the mischief of Section 53, Code of Criminal Procedure, 1973 [Sanjeev Nanda v State of NCT of Delhi, 2007 Cr LJ 3786 (3793) (Del) : 2008 (1) Crimes 481 ].

The wordings of section 53 of the Code of Criminal Procedure, 1973 are couched in the widest possible terms and are meant to assist the police officers in discharging their statutory duty of collecting all possible information with regard to commission of offence [Shailendra Sharma v State, 2009 (1) JCC 270 : 2008 (4) Crimes 508 (2) (Del)].

A medical examination of an arrested person can be directed during the course of an investigation, either at the instance of the investigating officer or the arrested person. It is also within the powers of a Court to direct such a medical examination on its own. Such an examination can also be directed in respect of a person who has been released from custody on bail as well as a person who has been granted anticipatory bail. Furthermore, section 53 of the Code contemplates the use of “force as is reasonably necessary” for conducting a medical examination. This means that once a Court has directed the medical examination of a particular person, it is within the powers of the investigators and the examiners to resort to a reasonable degree of physical force for conducting the same [Selvi v State of Karnataka, AIR 2010 SC 1974 : (2010) 7 SCC 263 : 2010 (4) Scale 690 ]. [s 53.3] Need for provision.— Without a statutory provision compulsory medical Examination of the accused would have been illegal [see Law Commission of India 37th Reprint, para 183 and 41st Ref. vol 1, para 5]. For the earlier law see Deoman, AIR 1939 Bom 284 (DB). [s 53.4] Validity.— Such provision would be valid [Narayan, AIR 1975 AP 88 ]. [s 53.5] Bail.— An accused released on bail in the event of arrest can be stated to be a person arrested on charge of committing an offence as contemplated under section 53 and can be subjected to medical examination for the purpose of effectual trial. The release on bail does not change the reality and from that fact alone, it cannot be said that he is not a person arrested for an offence. A person released on bail is still considered to be detained in the constructive custody of the Court through his surety. Therefore, to that extent, his liberty is subjected to

Page 3 of 4 [s 53] Examination of accused by medical practitioner at the request of police officer.— restraint. He is notionally in the custody of the Court and hence continues to be a person arrested. [Thaniel Victor v State, (1991) Cr LJ 2416 (Madras) : 1991 (1) Crimes 354 : 1991 (1) Cr LC 806 (Arunachalam J)]. [s 53.6] Valuable evidence.— An examination of the body would reveal valuable evidence and may take various shapes, e.g., (a) examination of the body for ascertaining the accused’s part in a sexual offence, or for finding out the injuries received by him; (b) examination for identification mark; (c) examination of internal parts, taking of fluids (e.g. in intoxication case) and so on. See notes under section 51. [s 53.7] Examination of the person.— The expression “examination of his person” cannot be confined only to external examination of the body. Many times it becomes necessary to make examination of some organs inside the body and the medical officer or person authorised is empowered to use such force as is necessary for carrying out such an examination [Anil Anantrao Lokhande v State of Maharashtra, 1981 Cr LJ 125 Bom : 1980 Bom CR 516 : 1980 Mah LJ 849 ; Gobindaram, 82 Cal WN 970 dissent)]. Besides physical examination, examination may be made by testing his blood, sputum, urine, semen, etc. [Ananth Kumar Naik v State of AP, 1977 Cr LJ 1797 (AP) : 1977 (2) Andh WR 437 : 1977 Mad LJ (Cri) 514; Jamshed v State of UP, 1976 Cr LJ 1680 (All) : 1976 All Cr C 87 : 1976 All WC 466]. Taking of sample of blood cannot be termed as testimonial or as compelling the accused to be a witness against himself [Anil Anantrao, (supra). (Ramlal Narag v Sate of Delhi (Administration), AIR 1979 SC 1791 : 1979 Cr LJ 1346 followed : (1979) 2 SCC 322) ].

The section would apply only when the father is able to establish that he has no access to have sexual intercourse with the woman and only then, the man cannot be said to be the father [Solaimuthu v State, 2005 Cr LJ 31 (Mad)].

The term “examination of a person” in terms of section 53 Code of Criminal Procedure, 1973 takes within its ambit the examination of a person by way of a Narco Analysis Test as it is a modern and scientific technique [Shailendra Sharma v State, 2009 (1) JCC 270 : 2008 (4) Crimes 508 (2) (Del); see also Ritesh Sinha v State of UP, AIR 2013 SC 1132 : 2013 Cr LJ 1301 : 2013 (2) All LJ 435 : 2013 (2) SCC 357 where the question whether “voice sample” is included in the definition of “measurements” under the Identification of Prisoners Act and in the Explanation to section 53 of the Code of Criminal Procedure, 1973, was referred to a larger bench]. [s 53.8] DNA Test.— DNA evidence is now a predominant forensic technique for identifying criminals when biological tissues are left at scene of crime. DNA testing on samples such as saliva, skin, blood, hair or semen not only helps to convict but also serves to exonerate. The sophisticated technology makes it possible to obtain conclusive results in case in which the previous testing had been inconclusive. Moreover, DNA sampling may also impinge on familiar privacy where information obtained from one person’s sample provides information regarding his or her relatives [Thogorani v State of Orissa, 2004 Cr LJ 4003 (A) (Ori) : 2004 (4) Crimes 76 : 2004 (2) Ori LR 183 : (2004) 29 OCR 29 (DB)].

Though section 53, Code of Criminal Procedure, 1973 refers only to examination of the accused by medical practitioner at the request of a police officer, there is no reason why the Court should not have a wider power for the purpose of doing justice in criminal case by issuing a direction to the police officer to collect blood sample from the accused and conduct DNA test for the purpose of further investigation under section 173(8) of the Code [Thogorani v State of Orissa, 2004 Cr LJ 4003 : 2004 (4) Crimes 76 : 2004 (2) Ori LR 183 (Ori)].

In the instant case, where the petitioner established a strong prima facie case in support of her contention that it was a fit case where a direction was to be issued to the Investigating Officer to collect blood sample from the person of the apposite party, denial to direct conduct of DNA test order to determine paternity of children was held not proper [Thogorani v State of Orissa, 2004 Cr LJ 4003 : (2004) 29 OCR 29 : 2004 (4) Crimes 76 (Ori)].

The only restriction for issuing a direction to collect the blood sample of the accused for conducting DNA test would be that before passing such a direction, the Court should balance the public interest vis-a-vis the rights under Articles 20(3) and 21 of the Constitution in obtaining evidence tending to confirm or disprove that the

Page 4 of 4 [s 53] Examination of accused by medical practitioner at the request of police officer.— accused committed the offence concerned. In balancing this interest, consideration of the following matters would be relevant: (i) the extent to which the accused may have participated in the commission of the crime; (ii) the gravity of the offence and the circumstances in which it is committed; (iii) age, physical and mental health of the accused to the extent they are known; (iv) whether there is less intrusive and practical way of collecting evidence tending to confirm or disprove the involvement of the accused in the crime; (v) the reasons, if any, for the accused for refusing consent (See Paper prepared by Mr Justice RK Abichandani, Hon’ble Judge of Gujarat High Court as titled Impact of New Biology on Justice Delivery System—The Gene Age—A Legal Perspective). An adverse inference can be drawn in the event of refusal of accused to give his blood sample for conducting DNA test [Thogarani v State of Orissa, 2004 Cr LJ 4003 : 2004 (4) Crimes 76 : (2004) 29 OCR 29 : 2004 (2) Ori LR 183 (Ori)].

DNA profiling technique has been expressly included among the various forms of medical examination in the amended explanation to sections 53, 53A and 54 of the Code of Criminal Procedure, 1973. It must also be clarified that a “DNA profile” is different from a DNA sample which can be obtained from bodily substances. A DNA profile is a record created on the basis of DNA samples made available to forensic experts. Creating and maintaining DNA profiles of offenders and suspects are useful practices since newly obtained DNA samples can be readily matched with existing profiles that are already in the possession of law enforcement agencies. The matching of DNA samples is emerging as a vital tool for linking suspects to specific criminal acts [Selvi v State of Karnataka, AIR 2010 SC 1974 : (2010) 7 SCC 263 : 2010 (4) Scale 690 ]. [s 53.8.1] Narcoanalysis, Polygraph examination and the Brain Electrical Activation Profit (BEAP) Test.— No individual should be forcibly subjected to any of the scientific techniques such as Narcoanalysis, Polygraph examination and Brain Electrical Activation Profile (BEAP) test whether in the context of investigation in criminal cases or otherwise. Doing so would amount to an unwarranted intrusion into personal liberty [Selvi v State of Karnataka, AIR 2010 SC 1974 : (2010) 7 SCC 263 : 2010 (4) Scale 690]. [s 53.9] Investigation.— Subjecting an arrested person to medical examination under section 53 forms part of the investigation as defined in section 2(h). An arrested person released on bail does not cease to be an arrested person or an accused for the purpose of sections 53 and 54 [Ananthkumar supra; Anil Anantrao, supra]. It is open to the Court which is seized of the matter to issue direction or to grant approval or permission to the police for carrying out further investigation under section 53 [Anil Ananthkumar, supra (Paliram, AIR 1979 SC 14 referred)]. [s 53.10] The Examination by Magistrate.— The procedure adopted by the Magistrate in examining the body of accused person himself and then dismissing the application on his observation that they were seen in normal postures was seen wholly unwarranted and erroneous. Where there was allegation of torture, the order under consideration is thus glaringly in violation of the spirit and essence of the provisions of section 54, Code of Criminal Procedure, 1973. Hence, interference by this Court in exercise of the powers under section 482, Code of Criminal Procedure, 1973 is certainly called for [Mukesh Kumar v State, (1990) Cr LJ 1923 (Delhi) : 1990 Rajdhani LR 41 (Santosh Duggal J)].

10

Substituted by the Code of Criminal Procedure (Amendment) Act, 2005 (25 of 2005), section 8 (w.e.f. 23 June 2006 vide Notification No. SO 923(E), dated 21 June 2006). Prior to its substitution, the Explanation read as under : “Explanation.—In this section and in section 54, “registered medical practitioner” means a medical practitioner who possesses any recognized medical qualification as defined in clause (h) of section 2 of the Indian Medical Council Act, 1956 (102 of 1956), and whose name has been entered in a State Medical Register.”

End of Document

[s 53A Examination of person accused of rape by medical practitioner.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER V ARREST OF PERSONS

The Code of Criminal Procedure, 1973 CHAPTER V ARREST OF PERSONS 11[s

53A Examination of person accused of rape by medical practitioner.— (1) When a person is arrested on a charge of committing an offence of rape or an attempt to commit rape and there are reasonable grounds for believing that an examination of his person will afford evidence as to the commission of such offence, it shall be lawful for a registered medical practitioner employed in a hospital run by the Government or by a local authority and in the absence of such a practitioner within the radius of sixteen kilometers from the place where the offence has been committed by any other registered medical practitioner, acting at the request of a police officer not below the rank of a sub-inspector, and for any person acting in good faith in his aid and under his direction, to make such an examination of the arrested person and to use such force as is reasonably necessary for that purpose. (2) The registered medical practitioner conducting such examination shall, without delay, examine such person and prepare a report of his examination giving the following particulars, namely:— (i)

the name and address of the accused and of the person by whom he was brought;

(ii) the age of the accused; (iii) marks of injury, if any, on the person of the accused; (iv) the description of material taken from the person of the accused for DNA profiling; and (v) other material particulars in reasonable detail. (3) The report shall state precisely the reasons for each conclusion arrived at (4) The exact time of commencement and completion of the examination shall also be noted in the report. (5) The registered medical practitioner shall, without delay, forward the report of the investigating officer, who shall forward it to the Magistrate referred to in Section 173 as part of the documents referred to in clause (a) of sub-section (5) of that section.] [s 53A.1] Changes—CrPC (Amendment) Act, 2005 (25 of 2005).— This section 53-A is added by the CrPC (Amendment Act), 2005 (25 of 2005). It provides for a detailed medical examination of a person accused of an offence of rape or an attempt to commit rape by the registered medical practitioner employed in a hospital run by the Government or by a local authority and in the absence of such a practitioner within the radius of sixteen kilometers from the place where the offence has been committed by any other registered medical practitioner. (Notes on Clauses, Clause 9)

This section has come into force w.e.f. 23 June 2006 vide Notification No. S.O. 923(E), dt. 21 June 2006. [s 53A.2] Scope and application of section 53A.—

Page 2 of 2 [s 53A Examination of person accused of rape by medical practitioner.— Section 53A is added by the CrPC (Amendment Act), 2005 (25 of 2005). It provides for a detailed medical examination of a person accused of an offence of rape or an attempt to commit rape by the registered medical practitioner employed in a hospital run by the Government or by a local authority and in the absence of such a practitioner within the radius of sixteen kilometers from the place where the offence has been committed by any other registered medical practitioner [Halappa v State of Karnataka, 2010 Cr LJ 4341 (Kant) : 2011 (1) KarLJ 362 ].

Under section 53-A of the Code during investigation the medical examination of a person accused of rape would be non-productive if there are no reasonable grounds for believing that such medical examination would afford evidence as to commission of such offence, since the seminal stains and traces of skin in the nails, if any, would have disappeared due to bathing and cleaning for 3 days. In the facts and circumstances of the case, non-production of the report of medical examination of the accused would not enure to the benefit of the accused since the accused did not take the plea that they were impotent and incapable of sexual intercourse [Ramnaresh v State of Chattisgarh, 2009 Cr LJ 4344 (4350) (Chh)].

Section 53A of the Code of Criminal Procedure, 1973 was introduced by the Legislature in order to overcome the difficulty in conducting the examination, i.e., examination of blood, blood stains, semen, swabs in the case of sexual offences, sputum and sweat; hair samples and finger nail clippings by the use of modern and scientific techniques including DNA profiling and such other tests which the registered medical practitioner thinks necessary in a particular case. This section is not ultra vires of the Constitution. Drawing of the blood sample for the purpose of civil proceedings without the consent of the party is not desirable. But, drawing of the blood sample for detection of the offence of rape wherein the investigating agency has to establish its case beyond reasonable doubt, cannot be termed as violative of Article 20(3) of the Constitution. The offence of rape is a very serious offence and it is an offence against the society at large [Halappa v State of Karnataka, 2010 Cr LJ 4341 (Kant) : 2011 (1) KarLJ 362 ]. After the incorporation of section 53A in the Code, in cases involving sexual offences, it has become necessary for the prosecution to go in for DNA test facilitating the prosecution to prove its case [Kishan Kumar Malik v State of Haryana, AIR 2011 SC 2877 : (2011) 7 SCC 130 : (2011) 3 SCC (Cri) 61 ].

11 Inserted by the Code of Criminal Procedure (Amendment) Act, 2005 (25 of 2005), section 9 (w.e.f. 23 June 2006 vide Notification No. SO 923(E), dated 21 June 2006).

End of Document

[s 54 Examination of arrested person by medical officer.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER V ARREST OF PERSONS

The Code of Criminal Procedure, 1973 CHAPTER V ARREST OF PERSONS 12[s

54 Examination of arrested person by medical officer.— (1) When any person is arrested, he shall be examined by a medical officer in the service of Central or State Government, and in case the medical officer is not available, by a registered medical practitioner soon after the arrest is made: Provided that where the arrested person is a female, the examination of the body shall be made only by or under the supervision of a female medical officer, and in case the female medical officer is not available, by a female registered medical practitioner. (2) The medical officer or a registered medical practitioner so examining the arrested person shall prepare the record of such examination, mentioning therein any injuries or marks of violence upon the person arrested, and the approximate time when such injuries or marks may have been inflicted. (3) Where an examination is made under sub-section (1), a copy of the report of such examination shall be furnished by the medical officer or registered medical practitioner, as the case may be, to the arrested person or the person nominated by such arrested person.] [s 54.1] STATE AMENDMENT IN SECTION 54

Uttar Pradesh.—The following amendments were made by U.P. Act 1 of 1984, section 7 (w.e.f. 1 May 1984).

(1) Section 54.—In section 54 the following sentence inserted at end namely—

The registered medical practitioner shall forthwith furnish to the arrested person a copy of the report of such examination free of cost.

Uttar Pradesh.—The following amendments were made by U.P. Act 1 of 1984, section 8 (w.e.f. 1 May 1984).

(2) Section 54-A.—After Sec. 54 insert the following section:—

54-A. Test identification of the accused.—When a person is arrested on a charge of com-mitting an offence and his

Page 2 of 3 [s 54 Examination of arrested person by medical officer.— test identification by any witness is considered necessary by any Court having jurisdiction, it shall be lawful for an Executive Magistrate acting at the instance of such Court, to hold test identification of the person arrested.

COMMENTS [s 54.2] Changes—CrPC (Amendment) Act, 2005 (25 of 2005).— Section 54 of the principal Act shall be renumbered as sub-section (1) thereof, and after sub-section (1) as so renumbered, the following sub-section shall be inserted, namely:

(2) Where an examination is made under sub-section (1), a copy of the report of such examination shall be furnished by the registered medical practitioner to the arrested person or the person nominated by such arrested person.

Notes on Clauses

The amendment to Section 54 is intended to provide that a copy of the report of the medical examination of the arrested person should be furnished by the registered medical practitioner to the arrested person or the person nominated by such arrested person. (Notes on Clauses, Clause 10)

This amendment in the section came into force w.e.f. 23 June 2006 vide Notification No. S.O. 923(E), dated 21 June 2006. [s 54.2.1] CrPC (Amendment) Act, 2008 (5 of 2009).— Section 54 has been substituted vide the Code of Criminal Procedure (Amendment) Act, 2008 (5 of 2009). The amendment makes it obligatory on the part of the State to have the arrested person examined by a registered medical practitioner soon after the arrest is made. It also provides that where the arrested person is a female, the examination of the body shall be made only by or under the supervision of a female registered medical practitioner [vide Notes on Clauses, Clause 8]. [s 54.3] Object.— Section 54 was not recommended by the Law Commission and was inserted as recommended by the Joint Committee Report, page IX, which considered such a provision desirable, in order to enable the person concerned to establish that the offence charged was not committed by him, or (b) that he had been subjected to physical injury while in custody.

The accused must be informed of his right under section 54 [Sheela Barse v State of Maharashtra, AIR 1983 SC 378 : 1983 Cr LJ 642 : (1983) 2 SCC 96 : (1983 (1) Crimes 602 ]. [s 54.4] Victim of rape.— A victim of rape or other sexual offence cannot be medically examined without her consent. [s 54.5] Scope and application of section 54.— This is a section in the 1973 Code regarding the examination of the accused person by a registered medical practitioner. The Code of Criminal Procedure (Amendment) Act, 2008 has substituted section 54 of the Code. After its substitution sub-section (1) provides that soon after the arrest is made, the arrested person shall be examined by a medical officer in the service of the Central or State Government. In case if the medical officer is not available, he shall be examined by a registered medical practitioner. Sub-section (2) of section 54 also makes it obligatory on the part of the medical officer or a registered medical practitioner to prepare the record of

Page 3 of 3 [s 54 Examination of arrested person by medical officer.— such examination, mentioning therein any injuries or marks of violence upon the person arrested, and also the approximate time when such injuries or marks may have been inflicted.

Proviso added to sub-section (1) further provides that where the arrested person is a female, the examination shall be made only by or under the supervision of a female medical officer, and in case the female medical officer is not available, by a female registered medical practitioner.

Magistrate is required to inform the arrested person about his right to claim examination by medical practitioner in case of complaint by him of torture or maltreatment in police custody [Sheela Barse v State of Maharashtra, AIR 1983 SC 378 : 1983 Cr LJ 642 : (1983) 2 SCC 96 : (1983) 1 Crimes 602 ].

Section 54 of Code of Criminal Procedure, 1973 is intended to give protection to a person who was arrested or detained by the police and later produced before a Judicial Magistrate for remand. An accused who surrendered himself before the Court on his own is not entitled to invoke the provision [Selvan v State (Deputy Inspector of Police), (2007) 1 Mad LJ (Cr) 644 (Mad)].

12 Substituted by the Code of Criminal Procedure (Amendment) Act, 2008 (5 of 2009), Section 8 (w.e.f. 31 December 2009). Prior to substitution, Section 54 stood as under:— “S. 54. Examination of arrested person by medical practitioner at the request of the arrested person.—†[(1)] When a person who is arrested, whether on a charge or otherwise, alleges, at the time when he is produced before a Magistrate or at any time during the period of his detention in custody that the examination of his body will afford evidence which will disprove the commission by him of any offence or which will establish the commission by any other person of any offence against his body, the Magistrate shall, if requested by the arrested person so to do direct the examination of the body of such person by a registered medical practitioner unless the Magistrate considers that the request is made for the purpose of vexation or delay or for defeating the ends of justice. ‡[(2)

Where an examination is made under sub-section (1), a copy of the report of such examination shall be furnished by the registered medical practitioner to the arrested person or the person nominated by such arrested person.]”

†

S. 54 re-numbered as sub-section (1) of that section by the Code of Criminal Procedure (Amendment) Act, 2005 (25 of 2005), section 10 (w.e.f. 23 June 2006 vide Notification No. SO 923(E), dated 21 June 2006).

‡

Sub-section (2) inserted by the Code of Criminal Procedure (Amendment) Act, 2005 (25 of 2005), section 10(w.e.f. 236-2006 vide Notification No. SO 923(E), dated 21 June 2006).

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[s 54-A Identification of person arrested.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER V ARREST OF PERSONS

The Code of Criminal Procedure, 1973 CHAPTER V ARREST OF PERSONS 13[s

54-A Identification of person arrested.—

Where a person is arrested on a charge of committing an offence and his identification by any other person or persons is considered necessary for the purpose of investigation of such offence, the Court, having jurisdiction, may on the request of the officer in charge of a police station, direct the person so arrested to subject himself to identification by any person or persons in such manner as the Court may deem fit:] 14[Provided

that, if the person identifying the person arrested is mentally or physically disabled, such process of identification shall take place under the supervision of a Judicial Magistrate who shall take appropriate steps to ensure that such person identifies the person arrested using methods that person is comfortable with: Provided further that if the person identifying the person arrested is mentally or physically disabled, the identification process shall be videographed]. [s 54A.1] Changes—CrPC (Amendment) Act, 2005 (25 of 2005).— This is a section inserted by the CrPC Amendment Act, 2005 (25 of 2005). It empowers the Court to direct specifically the holding of the identification of the arrested person at the request of the prosecution. (Notes on Clauses, Clause 11)

This section has come into force w.e.f. 23 June 2006 vide Notification No. S.O. 923(E), dated 21 June 2006.

Criminal Law (Amendment) Act, 2013 (13 of 2013).—Two provisos have been inserted in section 54A of Code of Criminal Procedure, 1973 to deal with the identification of an arrested person, in a situation where the person identifying the arrested person is mentally or physically disabled. The amendment lays down two requirements in such a situation:

(i)

It is now mandatory that such identification takes place under the supervision of Judicial Magistrate who is to ensure that such methods are used for identification of the arrested person that the person identifying is comfortable with;

(ii) The identification process is required to be videographed. [s 54A.2] Scope of section 54A.— Section 54A makes a provision for identification of arrested persons. It states that where a person is arrested on a charge of committing an offence and his identification by any other person or persons is considered

Page 2 of 2 [s 54-A Identification of person arrested.— necessary for the purpose of investigation of such offence, the Court having jurisdiction, may on the request of the officer in charge of a police station, direct the person so arrested to subject himself to identification by any person or persons in such manner as the Court may deem fit.

It has been held that since section 54A of Code of Criminal Procedure, 1973, uses the words “the Court, ... may ... direct the person so arrested to subject himself to identification by any person or persons in such manner as the Court may deem fit”, voice sample can be identified by means of voice identification parade under section 54A or by some other person familiar with the voice [Ritesh Sinha v State of UP, AIR 2013 SC 1132 : (2013) 2 SCC 357 per Ranjana Desai J, case referred to a larger bench].

13 Inserted by the Code of Criminal Procedure (Amendment) Act, 2005 (25 of 2005), section 11 (w.e.f. 23 June 2006 vide Notification No. SO 923(E), dated 21 June 2006).

14 Inserted by the Criminal Law (Amendment) Act, 2013 (13 of 2013), section 12 (w.e.f. 3 February 2013).

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[s 55] Procedure when police officer deputes subordinates to arrest without warrant.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER V ARREST OF PERSONS

The Code of Criminal Procedure, 1973 CHAPTER V ARREST OF PERSONS [s 55] Procedure when police officer deputes subordinates to arrest without warrant.— (1) When any officer in charge of a police station or any police officer making an investigation under chapter XII requires any officer subordinate to him to arrest without a warrant (otherwise than in his presence) any person who may lawfully be arrested without a warrant, he shall deliver to the officer required to make the arrest an order in writing, specifying the person to be arrested and the offence or other cause for which the arrest is to be made and the officer so required shall, before making the arrest, notify to the person to be arrested the substance of the order and, if so required by such person, shall show him the order. (2) Nothing in sub-section (1) shall affect the power of a police officer to arrest a person under Section 41. [s 55.1] Changes.— Sub-section (1) corresponds to sub-section (1) of old section 56, sub-section (2) has been added for the avoidance of any controversy. [s 55.2] Scope and application of section 55.— The section authorises an officer (i) incharge of a police station, or (ii) making an investigation under chapter 12 to depute a subordinate officer to arrest without warrant any person by an order in writing. Any officer subordinate is not limited to police officer (as in sections 41, 42, 57 etc.) but may be any other subordinate officer, e.g. Chowkidar [Bahubal, 10 Cal WN 287]. The jurisdiction of the police officer under this section is not excluded by the Magistrate issuing a warrant [Dalip, 18 A 246, 248].

Section 55 does not control or restrict the powers of the police officer given to him under section 41 of Code of Criminal Procedure, 1973. Section 41 is a general provision [Umed Singh v State of Rajasthan, 2003 Cr LJ 3632 (3636) (Raj) : 2003 (3) Raj LR 162 : 2003 (4) Raj LW 2290 ]. [s 55.3] Order in writing.— Verbal order is sufficient, if arrest is to be made in the presence of the police officer giving the order [Shk. Emoo, 11 WR 20] otherwise a written order from him is essential for legal arrest [Sona Mia, AIR 1948 C 95; Basant, 27 C 320; Maroti, AIR 1939 N 95]. Arrest without written order is illegal [Ram Ch., AIR 1955 A 438]. Resistance to arrest by a constable who was ordered by a police officer to bring a person to the thana is no offence in the absence of a written order [Gulabi, AIR 1940 P 361; Mulla Singh v The State, AIR 1968 All 132 : 1968 Cr LJ 435 ]. A valid written order would be like this: Arrest the person so named and for the offence stated [Dalip, 18 A 246]. The cause for arrest must be specified, i.e., it must be stated within which category of section 55 [now section 41(2)] the person to be arrested falls [Hardayal, 27 Cr LJ 628]. The name of the officer need not be endorsed on the requisition [Rameshwar, AIR 1934 A 879].

Page 2 of 2 [s 55] Procedure when police officer deputes subordinates to arrest without warrant.—

It should be noted that although arrest by a police officer without a written order or without notifying or producing the written order (if any) is illegal, it becomes legal if he arrests under a verbal order in the presence of the police officer giving the order or if independently of the written order he himself possessed the requisite information, etc., enabling him to arrest the person under section 41 [Mirwal, 47 Cr LJ 452 ; Kishun Mandar v King-Emperor, 27 Cr LJ 1310 : 98 Ind. Cas. 254; Raja Mia, 44 Cal WN 502; Maroti v Emperor, AIR 1939 Nag 95 : AIR 1940 Nag 230 ]. But when an arrest is illegal for want of an order in writing, it cannot be made legal by invoking section 41(1) if in fact the police officer did not purport to act under section 41 and did not possess the requisite information [Ram Chandra v State, AIR 1955 All 438 : 1955 CriLJ 1120 ].

Section 55(2) clarified a point on which there was a controversy under section 56 of the Code of 1898. The controversy being whether a subordinate police officer who finds that the order under section 55(1) is not valid, can exercise his own power independently under section 41(1). For the old law see Gulab, AIR 1940 Pal 363 ; Superintendent v Sona Mia, AIR 1948 Cal 95 ; Appaswami, AIR 1924 Mad 555 . Present sub-section (2) of section 55 settles the controversy as recommended by the Law Commission, 41st Report, vol 7, paras 5.2 to 5.4. [s 55.4] Substance of order to be notified.— Unless the substance of the order is notified to the person before his arrest there is no legal arrest [Raja Mia, supra]. The provision is a safeguard against abuse of powers [Appaswamy, 47 M 442]. The written order need not, however, be shown unless it is asked for [Umrao, 26 Cr LJ 796]. End of Document

[s 55A Health and safety of arrested person.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER V ARREST OF PERSONS

The Code of Criminal Procedure, 1973 CHAPTER V ARREST OF PERSONS 15[s

55A Health and safety of arrested person.—

It shall be the duty of the person having the custody of an accused to take reasonable care of the health and safety of the accused.] [s 55A.1] Changes.— CrPC (Amendment) Act, 2008 (5 of 2009) .— Section 55A is inserted by the Code of Criminal Procedure (Amendment) Act, 2008 (5 of 2009). New section 55A makes it obligatory on the part of the person having the custody of the accused to take reasonable care of the health and safety of the accused [vide Notes on Clauses, Clause 9].

This new section has come into force w.e.f. 31 December 2009. [s 55A.2] Scope of section 55A.— Section 55A of the Code of Criminal Procedure, 1973 prescribes that it shall be the duty of the person having the custody of the accused to take reasonable care of the health and safety of the accused. The duty under section 55A is subject to the duty under section 56 of Code of Criminal Procedure, 1973. Section 56 of Code of Criminal Procedure, 1973 enjoins duty on the police officer making arrest to take the person so arrested or send that person before a Magistrate having jurisdiction in the case or before the officer in-charge of a police station [Alaparthi Chinna v Kota Lakshmi Satyanarayana, 2012 (1) Andh LT (Cr) 227 : 2014 ALLMR (Cri) 371 ].

15 Inserted by the Code of Criminal Procedure (Amendment) Act, 2008 (5 of 2009), Section 9 (w.e.f. 31 December 2009).

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[s 56] Person arrested to be taken before Magistrate or officer in charge of police station.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER V ARREST OF PERSONS

The Code of Criminal Procedure, 1973 CHAPTER V ARREST OF PERSONS [s 56] Person arrested to be taken before Magistrate or officer in charge of police station.— A police officer making an arrest without warrant shall, without unnecessary delay and subject to the provisions herein contained as to bail, take or send the person arrested before a Magistrate having jurisdiction in the case, or before the officer in charge of a police station. [s 56.1] Changes.— Section 56 corresponds to old section 60 verbatim. [s 56.2] Scope and application of section 56.— If the police does not think it fit to take bail, the arrested person has to be taken to the Magistrate having jurisdiction, i.e., jurisdiction to try the case [Gulam Md. v State, AIR 1959 MP 147 : 1959 CriLJ 600 ]. Person arrested should not be kept in any other place but sent immediately to the Thana [Behary, 7 WR 3, 6]. He can be discharged on personal bond or bail (Ch 33) or under a Magistrate’s order under section 167 (section 59). Arrest under warrant (section 76).

Police officer who finds that the order under section 55(1) is not valid, … can independently exercise his own powers under section 41(1), provided for the old law [see Gulabi, AIR 1940 Pat 361 ; Sona Mia, AIR 1948 C 95; Appaswami, AIR 1924 Mad 555 ] present sub-section (2) of section 55 settles the controversy as recommended by the Law Commission, 41st Report, vol 1, paras 5.2 to 5.4. [s 56.3] Sections 56 and 57.— Sections 56 and 57 have to be read together, and also with Article 22(2) of the Constitution [Govind Prasad v State of WB, 1975 Cr LJ 1249 : 79 Cal WN 474] Just as old section 60 had to be also read with Article 22(2) [State of UP v Abdul Samad, AIR 1962 SC 1506 : [1962] Supp (3) SCR 915 ]. [s 56.4] Arrest.— Arrest without warrant is dealt with in section 76, but it is also regulated by Article 22(2).

In a case, if several dates for remand have been issued till the time of presentation of bail application in question and before this date no complaint associated with late production of the accused before Court was made either on behalf of the accused person or from the side of the co-accused, High Court held that in such condition the bail application of the accused could not be granted [Munsamy Shanmugam v Collector of Custom, 1995 Cr LJ 1740 (Bom)].

Page 2 of 2 [s 56] Person arrested to be taken before Magistrate or officer in charge of police station.— [s 56.5] Time limits.— Reading sections 56 and 57 and Article 22(2) the Courts can state the time limits as under Article 22(2) the person arrested must be sent “without unnecessary delay” before (1) a Magistrate having jurisdiction in the case or before the officer-in-charge of a police station [Rajani, 1975 Cr LJ 83 (Ori)]. Detention in custody cannot exceed 24 hours journey time to magistrate’s Court may be added, but, in additions it must be able to comply with the requirement that the period must be reasonable (section 57). Besides this procedure as to bail must be complied with sections 436 and 437 [Cf Raghunandan, 32 C 80, 83 Re Kata, AIR 1942 M 740]. [s 56.6] Magistrate.— (a) Under section 56 production must be before the Magistrate having jurisdiction [Gulam Mohammad Azeemuddin v State, AIR 1959 MP 147 : 1959 Cr LJ 600 ], (b) Under Article 22(2) of the Constitution, production must be before the nearest magistrate. It need not be interpreted to mean a Magistrate with judicial powers [Swami Hariharanand v The Jailor, I/C, District Jail, Madras, AIR 1954 All 601 ] and (c) The construed appeal is that the arrested person is to be produced before the nearest Magistrate having other power to deal with the case. [s 56.7] Having jurisdiction.— The words “having jurisdiction” have been interpreted,— (i) by the Calcutta High Court as meaning “having jurisdiction over the place of arrest” [Govind, 1995 Cr LJ 1249 (Cal)] and (ii) the Madhya Pradesh High Court as meaning “having jurisdiction to try the offence charged [Gulam Mohammad Azeemuddin v State, AIR 1959 MP 147 : 1959 Cr LJ 600 ].

Offence of obstructing police officials to discharge their lawful function was committed in UP but special police party was taking him to Andhra Pradesh. It was held that petitioner ought to have been produced before a Magistrate having jurisdiction with reference to place where offence had been committed [Kura Rajmaiah v State, 2007 Cr LJ 2031 (AP) : 2007 (1) Andh LD (Cr) 845].

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[s 57] Person arrested not to be detained more than twenty-four hours.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER V ARREST OF PERSONS

The Code of Criminal Procedure, 1973 CHAPTER V ARREST OF PERSONS [s 57] Person arrested not to be detained more than twenty-four hours.— No police officer shall detain in custody a person arrested without warrant for a longer period than under all the circumstances of the case is reasonable, and such period shall not, in the absence of a special order of a Magistrate under Section 167, exceed twenty-four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate’s Court. [s 57.1] Changes.— Section 57 corresponds to old section 61 verbatim. [s 57.2] Scope and application of section 57.— Cf Article 22(2), Constitution of India. An accused arrested without warrant by the police has the constitutional right under Article 22(2) of the Constitution of India and section 57 of the Code of Criminal Procedure, 1973 to be produced before the Magistrate without unnecessary delay and in no circumstances beyond 24 hours excluding the time necessary for the journey [Arnesh Kumar v State of Bihar, AIR 2014 SC 2756 : 2014 (8) Scale 250 : (2014) 8 SCC 273 ]. The constitutional and legal requirements to produce an arrested person before a Judicial Magistrate within 24 hours of the arrest must be scrupulously observed [Khatri v State of Bihar, 1981 Cr LJ 470 (SC)]. Section 57 is concerned solely with the question of the period of detention. It does not deal with the question of bail [Gulam Mohammad Azeemuddin v State, AIR 1959 MP 147 : 1959 Cr LJ 600 ]. The intention is that the accused should be brought before the Magistrate competent to try or commit, with the least delay [Nagendra, 51 C 402; Engadu, 11 M 98, 102]. The precautions in sections 56, 57 are designed to secure that within not more than 24 hours of arrest some Magistrate shall have seisin of what was going on and some knowledge of the charge against the accused [Dwarkadas, 28 Cal WN 850]. Where accused was brought to the out-post at 9 am. and he was sent out therefrom for medical treatment at 8.30 am next day, 24 hours by that time had not elapsed, benefit of doubt was given [Alok Deb Roy v State of Assam, 2004 Cr LJ 3048 : 2004 (3) Gau LR 77 : 2003 (3) Gau LT 468 (Gau)].

According to section 167 of the Code of Criminal Procedure, 1973 if an accused is detained in police custody the maximum period during which he can be kept in such custody is only 15 days either pursuant to a single order or more than one when such orders are for lesser number of days but on the whole such custody cannot be beyond fifteen days and the further remand to facilitate the investigation can only be by detention of the accused in judicial custody [Central Bureau of Investigation v Anupam J. Kulkarni, AIR 1992 SC 1768 : (1992) 3 SCC 141 : 1992 Cr LJ 2768 (SC)]. Police custody of the person arrested after expiry of initial period of 15 days of judicial remand is illegal [Public Prosecution, High Court of AP v Tatikayala Veeranna, 2003 Cr LJ (NOC) 165 : 2003 (1) Andh LD (Cri) 283].

The right to be taken out of police custody by being brought before a Magistrate is given—(i) to prevent arrest

Page 2 of 3 [s 57] Person arrested not to be detained more than twenty-four hours.— and detention with a view to extracting confession, or as a means of compelling people to give information; (ii) to prevent police stations being used as though they were prisons and (iii) to afford an early recourse to a judicial officer independent of the police on all question of bail or discharge [per Rankin J, in Md. Suleman, 30 Cal WN 985, 987 FB]. Arrest without warrant call for greater protection than do arrests under warrant issued by Court and production within 24 hours before a Magistrate ensures the immediate application of judicial mind to the legality of the arrest and the regularity of the procedure adopted [Ajaib Singh v The State of Punjab, AIR 1953 SC 10 : 1953 Cr LJ 180 ], Police officer failing to produce an arrested person before Magistrate within 24 hours is guilty of wrongful detention [Sharifbai, AIR 1961 Bom 42 ]. But such wrongful or illegal detention does not entitle the accused to be released on this ground when he is afterwards in lawful detention as an undertrial prisoner [Saptawna v State of Assam, AIR 1971 SC 813 : 1971 Cr LJ 679 : (1972) 4 SCC (N) 45].

Where accused was detained for three days without remand order, the detention was held illegal in view of the provisions of section 57 of Code of Criminal Procedure, 1973 and Articles 21 and 22 of the Constitution [Iqbal Kaur Kwatra v Director General of Police, Jaipur, 1996 Cr LJ 2600 (AP—DB) :?1996 (1) Andh LT (Cr) 622 ]. Detention of arrestee in police lock up beyond 24 hours violates the mandatory provision of section 57 of Code of Criminal Procedure, 1973 and Article 22 of the Constitution of India [Mahesh Kumar v State of Bihar, 2008 (3) Pat LJR 147 (Pat—DB) : 2008 (2) BLJ 135 ].

Though a limit of 24 hours is allowed, there is no absolute right to keep in custody till that period and in no case can a police officer detain for a minute longer if he can send the accused to a Magistrate at once, except upon some reasonable ground [Suprosunno, 6 WR 88, 89; Ram Autar, AIR 1955 A 138; see Md Suleman, 30 Cal WN 985 FB]. The practice is well settled that even on holidays an arrested person is to be produced before the Magistrate [Rajani Kanta Mehta v State of Orissa, (1974) 40 Cut LT 922 : 1975 Cr LJ 83]. Article 22(2) of the Constitution only gives protection to the provision in section 57, but further liberalizes it by making it applicable to those cases also where arrest is under a warrant [Swami Hariharanand v The Jailor, I/C, District Jail, Madras, AIR 1954 All 601 ].

The law views with disfavour detention in police custody and allows it only in the special cases mentioned in section 167 and for reasons to be stated in writing and not as a matter of course whenever the police ask for it [Re Khairati, 12 ILR 635 : AIR 1931 Lah 476 ]. As to the procedure if remand is necessary for investigation after the expiry of 15 days in all, see notes to section 176, post.

The section does not apply to cases where there has been no continuous detention for 24 hours [Indrabeer, 1 WR 5]. If detention beyond 24 hours is necessary, recourse should be had to section 167.

Production of the accused before Magistrate after 24 hours of his arrest does not render the custody illegal and order of remanding him to judicial custody is neither error of law nor that is error of jurisdiction: Not only this but revision against such remand may not be sustained [Manoj Kumar Agrawal v State of UP, 1995 Cr LJ 649 (All); See also Mahesh Kumar v State of Bihar, 1995 Cr LJ 646 (All); see also N. Ratnakumari v State of Orissa, 2015 (1) Crimes 31 (Ori) : 2014 Cr LJ 4433 (Ori)]. [s 57.3] Detention in Custody.— Keeping a person under restraint which prevents him from going wherever he likes, on the pretext that no actual arrest is made, is illegal and an abuse of police powers; it is in fact custody under arrest and sections 56 and 57 apply [Madar, AWN 59, 60 FB]. When there is the reality of it, the Court will not be put off with any pretence that there is no custody. So a person kept in attendance in such a way that he has no freedom of movement is in custody [see Parankushan, 2 MHCR 396 ; Behary, 7 WR 3].

Where a person is arrested, his physical production before the Magistrate within the time mandated under section 57 of the Code and Article 22(2) of the Constitution of India has to be scrupulously complied with and his further detention whether in police custody or judicial custody can be only on the orders passed by the

Page 3 of 3 [s 57] Person arrested not to be detained more than twenty-four hours.— Magistrate under section 167 of the Code. If such procedures are to be followed in a formal arrest as well against an accused who continued in judicial custody in another crime there is no meaning in terming such arrest as formal arrest [Ashish Arora v State of Kerala, ILR 2014 (1) Kerala 113 : 2013 (3) Ker LT 429 : 2014 Cr LJ 1189 (Ker)]. [s 57.4] Validity of refusal of Bail.— Where an accused is wanted in two states and against one case he receives a bail, bond cannot be executed because he could not be produced before Court within 24 hours, his arrest would become otiose his arrest would be declared void [Manoj v State of MP, AIR 1999 SC 1403 : 1999 Cr LJ 2095 (SC) : (1999) 3 SCC 715 : 1999 (2) Crimes 329 ]. [s 57.5] Writ of Habeas Corpus .— No writ of habeas corpus can be issued even though initial order of remand was illegal [Venkatesh Kumar Pandey v State of Bihar, 2009 Cr LJ (NOC) 980 (Pat)].

End of Document

[s 58] Police to report apprehensions.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER V ARREST OF PERSONS

The Code of Criminal Procedure, 1973 CHAPTER V ARREST OF PERSONS [s 58] Police to report apprehensions.— Officers in charge of police stations shall report to the District Magistrate, or, if he so directs, to the Subdivisional Magistrate, the cases of all persons arrested without warrant, within the limits of their respective stations, whether such persons have been admitted to bail or otherwise. [s 58.1] Changes.— Section 58 corresponds to old section 62 verbatim. [s 58.2] Scope and Application of section 58.— The object is that the Magistrate should be kept informed of all arrests without warrant by the police in order that he may see whether their powers were being exercised properly or abused, or to detect infractions of sections 56 and 57 and also to enable him to issue promptly such order as may be necessary in regard to the person arrested, as it is his duty to see that persons are not unnecessarily kept in custody.

Officer in charge of police station in Greater Bombay need not submit report to magistrate. [See section 96 Bombay Police Act].

Officer effecting arrest or seizure under provisions of NDPS Act, need not send any report to District Magistrate as envisaged under section 98 of Code of Criminal Procedure, 1973 [Swarnaki v State of Kerala, 2006 Cr LJ 65 (79) (Ker)].

End of Document

[s 59] Discharge of person apprehended.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER V ARREST OF PERSONS

The Code of Criminal Procedure, 1973 CHAPTER V ARREST OF PERSONS [s 59] Discharge of person apprehended.— No person who has been arrested by a police officer shall be discharged except on his own bond, or on bail, or under the special order of a Magistrate. [s 59.1] Changes.— This section corresponds to old section 63 verbatim. [s 59.2] Scope and application of section 59.— This section does not itself confer power on any Magistrate to release on bail. It only provides for release of a person arrested without warrant when under other provisions of the Code he has been ordered to be released on his bond or on bail or discharged under the special order of a Magistrate [Gulam Md v The State, AIR 1959 MP 147 : 1959 JLJ 227 ], Bail and Bond (Ch 33). As to discharge on bond or bail, [see sections 42, 43, 169, 170, 436 and 437]. The special order of a Magistrate contemplated is a special order of a Magistrate under section 167 (referred to in section 57). The police cannot detain an arrested person for more than 24 hours without the special order of Magistrate (whether he has or has not jurisdiction to try the case) under section 167. Such Magistrate may order further detention if he thinks it necessary for investigation. Further detention on adequate grounds cannot exceed a total period of 60 days or 90 days, as the case may be, of which for the first 15 days may be either in police custody or judicial custody as the Magistrate thinks fit, but thereafter it must be in judicial custody. On the expiry of 60 days, or 90 days as the case may be, the Magistrate shall release the accused on bail if the accused furnishes such bail. If he has no jurisdiction and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having jurisdiction. The police can enlarge the arrested person on his bond or bail for appearance before a Magistrate but they cannot discharge him on their own responsibility without the order of a Magistrate having jurisdiction. [s 59.3] “Under the special order”.— If the arrest and detention of the accused is not illegal, he cannot be discharged either on his own bond or on bail. However, if the arrest is found to be illegal, there would arise no question of releasing the accused on his own bond or on bail and the only proper order would be an order of discharge, i.e. the order of his release by passing of the special order, as contemplated in the latter part of section 59. There is no ambiguity in construing the phrase “under the special order of a Magistrate” so as to take resort to the principle of ejusdem generis and the phrase cannot be reckoned ejusdem generis to the words “on his own bond or on bail” [Assistant Collector of Customs R&I Pvt, Bombay v Shankar Govardhan Mohit, 1988 Cr LJ 624 : 1987 (3) Bom CR 708 : 1988 (1) Crimes 572 : (1988) 15 ECC 141 (Bom)]. [s 59.4] Arrest under warrant.— Section 59 covers all arrests by the police, even arrest under warrant, object is to avoid malpractices. [s 59.5] Release on bond.—

Page 2 of 2 [s 59] Discharge of person apprehended.—

See sections 42(2), 43(3), 169, 170(2), 436(1) proviso and 437(2) read with sections 441 and 442.

End of Document

[s 60] Power, on escape, to pursue and retake.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER V ARREST OF PERSONS

The Code of Criminal Procedure, 1973 CHAPTER V ARREST OF PERSONS [s 60] Power, on escape, to pursue and retake.— (1) If a person in lawful custody escapes or is rescued, the person from whose custody he escaped or was rescued may immediately pursue and arrest him in any place in India. (2) The provisions of Section 47 shall apply to arrests under sub-section (1) although the person making any such arrest is not acting under a warrant and is not a police officer having authority to arrest. [s 60.1] Changes.— Old sections 66 and 67 have been combined into section 60 as sub-sections (1) and (2), section 47 has been substituted for sections 47, 48 and 49 as the three sections have been combined into section 47. [s 60.2] Notes.— “Lawful custody” includes the custody of a private person [see section 41(e); section 55]. [s 60.3] Sub-section (2).— The provisions referred to in section 47 relate to search of place entered by person sought to be arrested; breaking open of windows, doors etc.

In a criminal trial the question whether summons or warrant should be issued is to be decided with reference to section 204 subject to the provisions of section 87.

Once it is brought to the notice of the police officer and when he satisfied that, the person is an escaped prisoner, then, he can under section 60 of the Code of Criminal Procedure, 1973, arrest him without warrant and produce him before the Magistrate having jurisdiction within that local limit and that Magistrate can pass appropriate orders regarding re-transmission of that prisoner to the concerned jail from where he escaped [Raghav Rajan v State of Kerala, 2014 (3) Ker LT 843 : 2014 (3) Ker LT 851 ]. End of Document

[s 60A Arrest to be made strictly according to the Code.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER V ARREST OF PERSONS

The Code of Criminal Procedure, 1973 CHAPTER V ARREST OF PERSONS 16[s

60A Arrest to be made strictly according to the Code.—

No arrest shall be made except in accordance with the provisions of this Code or any other law for the time being in force providing for arrest.] [s 60A.1] Changes— CrPC (Amendment) Act, 2008 (5 of 2009) .— Section 60A has been inserted by the Code of Criminal Procedure (Amendment) Act, 2008 (5 of 2009). This section has been added with a view to prohibiting arrest except in accordance with the Code or any other law for the time being in force providing for arrest [vide Notes on Clauses, Clause 10].

This new section has come into force w.e.f. 31 December 2009. [s 60A.2] Scope of section 60A.— The provision laid down under section 60A of Code of Criminal Procedure, 1973 clearly binds the Police Officers to follow the procedure prescribed under the Code before arrest is effected. The Police Officer by no stretch of imagination can arrest any person in breach of provisions of the Code. In the instant case, the arrest of a woman after sunset without following the mandate of provisions of section 46(4) of Code of Criminal Procedure, 1973, was totally illegal and de hors the procedure prescribed under the Code [Bharati S. Khandhar v Maruti Govind Jadhav, 2013 Cr LJ 677 (Bom) : 2013 (2) Bom CR (Cri) 643 ].

16 Inserted by the Code of Criminal Procedure (Amendment) Act, 2008 (5 of 2009), Section 10 (w.e.f. 31 December 2009).

End of Document

Date and Time: Thursday 9 March 2023 4:29:00 PM IST Job Number: 192141403

Documents (80) 1. [s 61] Forms of summons.— Client/Matter: -None2. [s 62] Summons how served.— Client/Matter: -None3. [s 63] Service of summons on corporate bodies and societies.— Client/Matter: -None4. [s 64] Service when persons summoned cannot be found.— Client/Matter: -None5. [s 65] Procedure when service cannot be effected as before provided.— Client/Matter: -None6. [s 66] Service on Government servant.— Client/Matter: -None7. [s 67] Service of summons outside local limits.— Client/Matter: -None8. [s 68] Proof of service in such cases and when serving officer not present.— Client/Matter: -None9. [s 69] Service of summons on witness by post.— Client/Matter: -None10. [s 70] Form of warrant of arrest and duration.— Client/Matter: -None11. [s 71] Power to direct security to be taken.— Client/Matter: -None12. [s 72] Warrants to whom directed.— Client/Matter: -None13. [s 73] Warrant may be directed, to any person.— Client/Matter: -None14. [s 74] Warrant directed to police officer.— Client/Matter: -None15. [s 75] Notification of substance of warrant.— Client/Matter: -None16. [s 76] Persons arrested to be brought before Court without delay.— Client/Matter: -None17. [s 77] Where warrant may be executed.— Client/Matter: -None18. [s 78] Warrant forwarded for execution outside jurisdiction.— Client/Matter: -None19. [s 79] Warrant directed to police officer for execution outside jurisdiction.— | About LexisNexis | Privacy Policy | Terms & Conditions | Copyright © 2023 LexisNexis

Client/Matter: -None20. [s 80] Procedure on arrest of person against whom warrant issued.— Client/Matter: -None21. [s 81] Procedure by Magistrate before whom such person arrested is brought.— Client/Matter: -None22. [s 82] Proclamation for person absconding.— Client/Matter: -None23. [s 83] Attachment of property of person absconding.— Client/Matter: -None24. [s 84] Claims and objections to attachment.— Client/Matter: -None25. [s 85] Release, sale and restoration of attached property.— Client/Matter: -None26. [s 86] Appeal from order rejecting application for restoration of attached property.— Client/Matter: -None27. [s 87] Issue of warrant in lieu of, or in addition to, summons.— Client/Matter: -None28. [s 88] Power to take bond for appearance.— Client/Matter: -None29. [s 89] Arrest on breach of bond for appearance.— Client/Matter: -None30. [s 90] Provisions of this Chapter generally applicable to summonses and warrants of arrest.— Client/Matter: -None31. [s 91] Summons to produce document or other thing.— Client/Matter: -None32. [s 92] Procedure as to letters and telegrams.— Client/Matter: -None33. [s 93] When search warrant may be issued.— Client/Matter: -None34. [s 94] Search of place suspected to contain stolen property, forged documents, etc.— Client/Matter: -None35. [s 95] Power to declare certain publications forfeited, and to issue search-warrants for the same.— Client/Matter: -None36. [s 96] Application to High Court to set aside declaration of forfeiture.— Client/Matter: -None37. [s 97] Search for persons wrongfully confined.— Client/Matter: -None38. [s 98] Power to compel restoration of abducted females.— Client/Matter: -None39. [s 99] Direction, etc., of search-warrants.— Client/Matter: -None40. [s 100] Persons in charge of closed place to allow search.— Client/Matter: -None41. [s 101] Disposal of things found in search beyond jurisdiction.—

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Client/Matter: -None42. [s 102] Power of police officer to seize certain property.— Client/Matter: -None43. [s 103] Magistrate may direct search in his presence.— Client/Matter: -None44. [s 104] Power to impound document, etc., produced.— Client/Matter: -None45. [s 105] Reciprocal arrangements regarding processes.— Client/Matter: -None46. [s 105-A] Definitions.— Client/Matter: -None47. [s 105-B] Assistance in securing transfer of persons.— Client/Matter: -None48. [s 105-C] Assistance in relation to orders of attachment or forfeiture of property.— Client/Matter: -None49. [s 105-D] Identifying unlawfully acquired property.— Client/Matter: -None50. [s 105-E] Seizure of attachment of property.— Client/Matter: -None51. [s 105-F] Management of properties seized or forfeited under this Chapter.— Client/Matter: -None52. [s 105-G] Notice of forfeiture of property.— Client/Matter: -None53. [s 105-H] Forfeiture of property in certain cases.— Client/Matter: -None54. [s 105-I] Fine in lieu of forfeiture.— Client/Matter: -None55. [s 105-J] Certain transfers to be null and void.— Client/Matter: -None56. [s 105-K] Procedure in respect of letter of request.— Client/Matter: -None57. [s 105-L] Application of this chapter.— Client/Matter: -None58. [s 106] Security for keeping the peace on conviction.— Client/Matter: -None59. [s 107] Security for keeping the peace in other cases.— Client/Matter: -None60. [s 108] Security for good behaviour from persons disseminating seditious matters.— Client/Matter: -None61. [s 109] Security for good behaviour from suspected persons.— Client/Matter: -None62. [s 110] Security for good behaviour from habitual offenders.— Client/Matter: -None63. [s 111] Order to be made.—

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Client/Matter: -None64. [s 112] Procedure in respect of person present in court.— Client/Matter: -None65. [s 113] Summons or warrant in case of person not so present.— Client/Matter: -None66. [s 114] Copy of order to accompany summons or warrant.— Client/Matter: -None67. [s 115] Power to dispense with personal attendance.— Client/Matter: -None68. [s 116] Inquiry as to truth of information.— Client/Matter: -None69. [s 117] Order to give security.— Client/Matter: -None70. [s 118] Discharge of person informed against.— Client/Matter: -None71. [s 119] Commencement of period for which security is required.— Client/Matter: -None72. [s 120] Contents of bond.— Client/Matter: -None73. [s 121] Power to reject sureties.— Client/Matter: -None74. [s 122] Imprisonment in default of security.— Client/Matter: -None75. [s 123] Power to release persons imprisoned for failing to give security.— Client/Matter: -None76. [s 124] Security for unexpired period of bond.— Client/Matter: -None77. [s 125] Order for maintenance of wives, children and parents.— Client/Matter: -None78. [s 126] Procedure.— Client/Matter: -None79. [s 127] Alteration in allowance.— Client/Matter: -None80. [s 128] Enforcement of order of maintenance.— Client/Matter: -None-

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[s 61] Forms of summons.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER VI PROCESSES TO COMPEL APPEARANCE > A.—Summons

The Code of Criminal Procedure, 1973 CHAPTER VI PROCESSES TO COMPEL APPEARANCE A.—Summons [s 61] Forms of summons.— Every summons issued by a Court under this Code shall be in writing, in duplicate, signed by the presiding officer of such Court or by such other officer as the High Court may, from time to time, by rule direct, and shall bear the seal of the Court. [s 61.1] Changes.— This section corresponds to sub-section (1) of old section 68. The words “and sealed” after the word “signed” have been omitted. [s 61.2] Scope and application of section 61.— A summons is an authoritative call to appear in Court for a certain purpose. The summons from Court may be to the accused (section 204), to a witness [sections 230, 233(3), 242(2), 243(2), 244(2) and 254(2)] to produce document (section 91) or to a person to show cause under sections 107–110 (section 113); section 61 applies to all summonses under the Code [Sarat, 1 Cal WN 116; Gurnam, 4 DLR (Pu) 216]. There is no provision for summons by Magistrate for appearance before the police [Jogendra, 24 C 320]. The police may themselves issue summons to any person to attend at any investigation under chapter XII (section 160).

Summons should be clear and specific in terms as to title of Court, place, day and hour of attendance [Rama Saran, 5 A 7]. Non compliance with the requirements of the forms in Schedule 2 cannot be treated lightly, especially when essential features, like the nature of the offence charged, are not mentioned [Manoranjan, AIR 1970 Tri 84]. Where summons is disobeyed, it is the bounden duty of Court to act according to law [Md. Yasin, AIR 1954 P 437]. See section 350 for disobedience to summons.

The summons as well as warrants whether bailable or not are only processes to secure the presence of an indictee before Court. Both the summons and warrants are only issued in the attempt of the Court to secure the presence of the summonee/ warrantee. Where the personal presence of such summonee/warantee is not necessary for the progress of the case and he can be exempted from personal appearance before Court, there can be no reason to ritualistically insist on the presence of the summonee/warantee to facilitate consideration of the application for exemption. If personal presence is not required and can be exempted under section 205 of Code of Criminal Procedure, 1973, the application for exemption can be allowed without personal presence whether such personal appearance is requested/mandated by issue of summons or warrant. All summons

Page 2 of 2 [s 61] Forms of summons.— cases, and all other cases where summons is issued at the first instance under section 204 of the Code of Criminal Procedure, 1973 shall fall within the sweep of section 205 of the Code of Criminal Procedure, 1973 In such a case where the Court is satisfied that there is reason to grant exemption under section 205 Code of Criminal Procedure, 1973, the fact that a warrant has been issued later is no reason to insist on the personal presence of the indictee to consider an application for exemption-whether to plead guilty or not guilty [Rohit S. Ved v State of Kerala, 2008 (3) KLJ 884 (Ker)]. [s 61.3] Form of summons.— The form of summons to accused shall conform to Form 61 of Code of Criminal Procedure, 1973 and signed by the Magistrate, summons signed by any other officer of Court such as an interpreter is illegal [Ranjit Pisharoty v Interpretator, AC MM’s Court, Egmore, (2007) 1 Mad LJ (Cr) 532 (Mad)]. [s 61.4] Summons or warrant.— Whether a summons or warrant should issue, is to be decided under section 204 subject to the provisions of section 87. [s 61.5] Prayers for summons and particulars.— A verbal prayer for summons on an accused is sufficient [Md. Gul, 33 Cal WN 446, 449 : 56 C 1013]. Summons to the accused (Form 1, Schedule 2) shall state shortly the offence charged. A general omnibus charge does not satisfy the statutory requirement. If it does not contain particulars of the place where, the time when, and the nature of the offence charged, it may be disregarded by the person summoned and proceedings taken thereon, if objected to, are invalid [Rananjai, AIR 1928 A 261; Lalchand, AIR 1934 Oudh 370; see Gajraj, AIR 1936 All 761; Maiku, 38 Cr LJ 326]. It has also been held that if the accused attends, the defective summons it by itself does not vitiate the trial [Abdul, AIR 1940 Ori 77; Md. Sadiq, AIR 1929 Lah 867]. Issuing summons under the Motor Vehicles Act without giving the slightest particulars of the offence alleged is not justified by law. They should be in the statutory form in Schedule 2 and the exact nature of the charge has to be stated [Rananjai, AIR 1928 A 261; Gajraj, AIR 1936 All 761]. [s 61.6] Mention of offence.— Second Schedule, Form no. 1 envisages that the summons must state the offence. In general, defects in the summons do not vitiate the trial (section 465) but it may, if the accused is prejudiced [Gajraj, AIR 1936 All 761; Lalchand, AIR 1934 Oudh 370].

“Signed” means in full by hand and not stamp. Initialling would be an irregularity curable by section 465 (though the illustration to it has been omitted). Summons without seal is void and disobedience is no offence [Abdul Rahim, 37 Mad LJ 588]. Service of summons (sections 62–69). “Public servant” (section 21 of Indian Penal Code, 1860).

End of Document

[s 62] Summons how served.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER VI PROCESSES TO COMPEL APPEARANCE > A.—Summons

The Code of Criminal Procedure, 1973 CHAPTER VI PROCESSES TO COMPEL APPEARANCE A.—Summons [s 62] Summons how served.— (1) Every summons shall be served by a police officer, or subject to such rules as the State Government may make in this behalf, by an officer of the Court issuing it or other public servant. (2) The summons shall, if practicable, be served personally on the person summoned, by delivering or tendering to him one of the duplicates of the summons. (3) Every person on whom a summons is so served shall, if so required by the serving officer, sign a receipt therefor on the back of the other duplicate. [s 62.1] Changes.— Sub-section (1) of section 62 corresponds to sub-section (2) of old section 68. The words “Every” and “make” have been substituted for the words “such” and “prescribe” respectively. Sub-sections (2) and (3) correspond to sub-sections (1) and (2) of old section 69 respectively. [s 62.2] Scope and application of section 62.— The section speaks of personal service. To effect personal service, process-server must satisfy himself that the right man has been found and then deliver or tender him one of the duplicates of the summons (Cf O V, rule 10, Civil Procedure Code) showing him the original, if asked. Tender is sufficient service [Punamalai, 5 M 199; Sahdeo, 40 A 577] although there may be refusal to receive or to sign receipt, which is not an offence [Punamalai. supra; Krishna, 20 C 358]. But the tender must be real tender of a document which is understood by the person to be served, and he must have waived actual delivery [Budhan, AIR 1928 A 188].

Every summons under the Code must be served as provided in this section. Service by registered post is illegal [Sarat, 1 Cal WN 116n (summons to juror); Gurnam, 4 DLR (Pu) 216; Bhimappa Gangappa Sonar v Indirabai Kom Bhimappa, 1981 Cr LJ (NOC) 8 : 1981 (1) Kant LJ 353 : ILR (1981) 1 Kant 382 (Kant) (maintenance case)]. Summons to witnesses under section 257 (now section 243) must be served under section 62 and not by post [Sudhir, 52 Cal WN 44 FC]. The process for issuance of process does not contemplate issuance of summons to accused by post [Nav Maharashtra Chakan Oil Mills v Shevashakti Poultry Farm, 2002 Cr LJ 4446 : AIR 2002 Kant HCR 2682 : 2002 (3) Bank Cas 403 : 2003 (1) Cur Cr R 180 (Kant)]. Notice on a party has also to be served in the manner laid down in sections 61–64 [Pahilajrai, AIR 1959 P 433]. Under section 69 in addition to and simultaneously with the issue of summons, Court may direct a copy of the summons on witness to be served by registered post. It has been said that process server has no general right to enter a house without permission [Kuppuswami, 39 M 561]. Merely a written report of process-server without affidavit cannot be accepted as sufficient proof of service [Jogendra, 8 Cal WN 719].

Page 2 of 2 [s 62] Summons how served.—

In this case, the specific stand of the petitioner was that the prosecution had received dasti for its witnesses and notwithstanding it did not produce its witnesses. It was also pleaded by the petitioner that by allowing the petition under section 311, Code of Criminal Procedure, 1973 after closure of arguments was to permit to prosecution to fill up the loopholes and lacunae in the prosecution. Held, the arguments of the petitioner were not tenable. Section 62 of Code of Criminal Procedure, 1973 and Rules from the High Court do not recognise dasti. Therefore, it is not the case of the petitioners that the summons by the Court having been validly served on the witnesses, they failed to appear in Court for their evidence. Order allowing examination of witnesses must be held proper [Mohan Singh v State of Bihar, 2009 Cr LJ 4509 (4510) (Pat)]. End of Document

[s 63] Service of summons on corporate bodies and societies.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER VI PROCESSES TO COMPEL APPEARANCE > A.—Summons

The Code of Criminal Procedure, 1973 CHAPTER VI PROCESSES TO COMPEL APPEARANCE A.—Summons [s 63] Service of summons on corporate bodies and societies.— Service of a summons on a corporation may be effected by serving it on the secretary, local manager or other principal officer of the corporation, or by letter sent by registered post, addressed to the chief officer of the corporation in India, in which case the service shall be deemed to have been effected when the letter would arrive in ordinary course of post. Explanation.—In this section, “corporation” means an incorporated company or other body corporate and includes a society registered under the Societies Registration Act, 1860 (21 of 1860). [s 63.1] Changes.— Section 63 corresponds to sub-section (3) of old section 69 with substitution of the words “a corporation” for the words “an incorporated company or other body corporate”. The explanation has been added to bring the registered societies within the purview of the section. [s 63.2] Scope and application of section 63.— This section prescribes the mode of service on an incorporated company or other body corporate. When correct address and posting of a letter are proved there is a presumption of its delivery in due course (see section 16, section 114, Illustration. (f), Evidence Act). As to the presumption in respect of registered letters or such letters returned with the endorsement “refused”, see Sarkar’s Law of Evidence, 13th Edn, pp 191–92]. In summons against a Company, a representative like secretary, manager or principal officer must be described both by name and designation and there should be some evidence of his representative character at the trial [Om Koshla, AIR 1956 C 237]. The process would not be issued to the named person as proprietor of the Company but to the Company represented by that person as its proprietor [Amarnath Prasad v State of Bihar, 1976 Cr LJ 1778 (Pat) : 1976 Pat LJR 324 : 1976 BBCJ 217]. Service of summons on Branch Manager shall be deemed to be service on Bank itself [Central Bank of India v DDA, 1981 Cr LJ 1476 : (1981) 20 DLT 98 (Del)].

A summoning order is not a judgment and can be recalled or reviewed by the Court issuing it [Prakash Industries Ltd v State, 2004 Cr LJ 744 (747) (Delhi) : (2003) 106 DLT 527 : 2003 (70) DRJ 113 : 2004 (1) Rec Cri R 58].

Page 2 of 2 [s 63] Service of summons on corporate bodies and societies.—

Explanation.—The main object of the Explanation is to clarify the position regarding registered Societies, Cf Law Commission of India, 41st Report, p 40, para 6.3. [s 63.3] Trade Union.— The section applies to a trade union [Bhupendra, AIR 1929 Bom 433, 43] and to an incorporated bank [Central Bank of India v DDA, 1981 Cr LJ 147 6 (Delhi) : (1981) 20 DLT 98].

End of Document

[s 64] Service when persons summoned cannot be found.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER VI PROCESSES TO COMPEL APPEARANCE > A.—Summons

The Code of Criminal Procedure, 1973 CHAPTER VI PROCESSES TO COMPEL APPEARANCE A.—Summons [s 64] Service when persons summoned cannot be found.— Where the person summoned cannot, by the exercise of due diligence, be found, the summons may be served by leaving one of the duplicates for him with some adult male member of his family residing with him, and the person with whom the summons is so left shall, if so required by the serving officer, sign a receipt therefor on the back of the other duplicate. Explanation.—A servant is not a member of the family within the meaning of this section. [s 64.1] Changes.— Section 64 corresponds to old section 70 with omission of the words or, in a presidency town, with his servant after the word “family”, and addition of the explanation. [s 64.2] Scope and application of section 64.— Service under this section is permissible only when the person to be served cannot be found by the exercise of due diligence. (1) There must be an attempt to find out the person and (2) the peon’s report should show attempt was made. A man may have gone to another place when the process-server went, but that is not attempt to find him [Sunder, 1882 AWN 170]. The standard of due diligence should at least be the same as is required in the case of service of summons in civil cases (O V, rule 17), viz., there must be a real endeavour to serve and with that object the process-server must make a diligent search for the person. Temporary absence is not enough. He must take pains to find him out, go again when he is likely to be in his house, make enquiries and if necessary follow him [see Cohen, 19 C 201; Kassim, 20 Cal WN 173; Subramania, 21 M 419; Sukharam, 30 B 623; Bhawani, 52 C 453; Najimunnissa, AIR 1929 P 433; Tripura, AIR 1952 C 781]. So, if there is absence of reasonable diligence in attempting to serve personally substituted service is bad [Jadho, 23 Cr LJ 739 : AIR 1923 N 55]. If the person cannot be found, resort must be had to the procedure in sections 64, 65 and not to section 134(2) [Abdul Jabbar, 39 Cal WN 141]. Service on mother of the accused is not warranted [Sawan, AIR 1925 L 50 : 26 Cr LJ 1393]. Accused has a right to seek assistance of the Court to enforce the attendance of his witness [G V Reddy v OTS Advertising Pvt Ltd, 2002 Cr LJ 3515 : 2002 (1) Andh LT (Cri) 468 : 2002 (3) All CrLR 599 : 2002 (3) Cur CR 507 (AP)].

End of Document

[s 65] Procedure when service cannot be effected as before provided.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER VI PROCESSES TO COMPEL APPEARANCE > A.—Summons

The Code of Criminal Procedure, 1973 CHAPTER VI PROCESSES TO COMPEL APPEARANCE A.—Summons [s 65] Procedure when service cannot be effected as before provided.— If service cannot by the exercise of due diligence be effected as provided in Section 62, Section 63 or Section 64, the serving officer shall affix one of the duplicates of the summons to some conspicuous part of the house or homestead in which the person summoned ordinarily resides; and thereupon the Court, after making such inquiries as it thinks fit, may either declare that the summons has been duly served or order fresh service in such manner as it considers proper. [s 65.1] Changes.— Section 65 corresponds to old section 71. However, the section has been slightly modified to bring it in line with the corresponding provision in O V, rule 19 of Code of Civil Procedure, 1908. After a service by affixation is made under the section, it will be, now for the Court to apply its judicial mind and declare the summons as duly served or order fresh service instead of the summons being automatically declared as duly served as at present. [s 65.2] Scope and application of section 65.— Service by affixation under this section cannot be availed of unless personal service under sections 62 and 64 cannot be effected by the exercise of due diligence [Benimadhab, 31 Cal WN 148 : 27 Cr LJ 715; Kalipada, AIR 1951 C 207; Bhimrao, AIR 1963 My 239]. As to what is due diligence, (see notes to section 64). Ordinarily resides (see section 20 of Code of Civil Procedure, 1908). Residence means where a person or his family or servants eat, drink and sleep [Kumud, CLJ 2]. Service on persons employed abroad cannot be served by affixture to his house in India but the Court can send summons through Embassy Official even in absence of rules contemplated by section 62(1) in exercise of discretion under latter part section 65 [Eralottu Chathu v Patingattillath Gopalan, 1981 Cr LJ 691 (Ker) : 1981 Ker LT 103 : 1981 Mad LJ (Cri) 154].

End of Document

[s 66] Service on Government servant.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER VI PROCESSES TO COMPEL APPEARANCE > A.—Summons

The Code of Criminal Procedure, 1973 CHAPTER VI PROCESSES TO COMPEL APPEARANCE A.—Summons [s 66] Service on Government servant.— (1) Where the person summoned is in the active service of the Government, the Court issuing the summons shall ordinarily send it in duplicate to the head of the office in which such person is employed; and such head shall thereupon cause the summons to be served in the manner provided by Section 62, and shall return it to the Court under his signature with the endorsement required by that section. (2) Such signature shall be evidence of due service. [s 66.1] Changes.— Section 66 corresponds to old section 72. The words “or of a Railway Company” after “Government” have been omitted as Railway Companies have ceased to exist. [s 66.2] Scope and application of section 66.— The section applies only to summons issued by Court and not by a police officer under section 160 when making investigation under chapter 12 [Gumparthi, 18 Cr LJ 733]. Summons to sub-inspector of Railway-police is to be served through Superintendent of Railway Police [Gaurishanker, AIR 1925 P 553]. End of Document

[s 67] Service of summons outside local limits.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER VI PROCESSES TO COMPEL APPEARANCE > A.—Summons

The Code of Criminal Procedure, 1973 CHAPTER VI PROCESSES TO COMPEL APPEARANCE A.—Summons [s 67] Service of summons outside local limits.— When a Court desires that a summons issued by it shall be served at any place outside its local jurisdiction, it shall ordinarily send such summons in duplicate to a Magistrate within whose local jurisdiction the person summoned resides, or is, to be there served. [s 67.1] Changes.— Section 67 corresponds to old section 73.

End of Document

[s 68] Proof of service in such cases and when serving officer not present.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER VI PROCESSES TO COMPEL APPEARANCE > A.—Summons

The Code of Criminal Procedure, 1973 CHAPTER VI PROCESSES TO COMPEL APPEARANCE A.—Summons [s 68] Proof of service in such cases and when serving officer not present.— (1) When a summons issued by a Court is served outside its local jurisdiction, and in any case where the officer who has served a summons is not present at the hearing of the case, an affidavit, purporting to be made before a Magistrate, that such summons has been served, and a duplicate of the summons purporting to be endorsed (in the manner provided by Section 62 or Section 64) by the person to whom it was delivered or tendered or with whom it was left, shall be admissible in evidence, and the statements made therein shall be deemed to be correct unless and until the contrary is proved. (2) The affidavit mentioned in this section may be attached to the duplicate of the summons and returned to the Court. [s 68.1] Changes.— Section 68 corresponds to old section 74. See sections 66(1) and 66(2) Government servants. End of Document

[s 69] Service of summons on witness by post.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER VI PROCESSES TO COMPEL APPEARANCE > A.—Summons

The Code of Criminal Procedure, 1973 CHAPTER VI PROCESSES TO COMPEL APPEARANCE A.—Summons [s 69] Service of summons on witness by post.— (1) Notwithstanding anything contained in the preceding sections of this Chapter, a Court issuing a summons to a witness may, in addition to and simultaneously with the issue of such summons, direct a copy of the summons to be served by registered post addressed to the witness at the place where he ordinarily resides or carries on business or personally works for gain. (2) When an acknowledgment purporting to be signed by the witness or an endorsement purporting to be made by a postal employee that the witness refused to take delivery of the summons has been received, the Court issuing the summons may declare that the summons has been duly served. [s 69.1] STATE AMENDMENT IN SECTION 69 Andaman and Nicobar and Lakshadweep Islands.—The following amendments were made by Regn. 6 of 1977, section 2 (w.e.f. 17 November 1977).

Section 69.—In its application to the Union Territories of Andaman and Nicobar and Lakshadweep Islands.—

(i)

in Sub-section (1) after the words “to be served by registered post,” insert the words “or of the substance thereof to be served by wireless message”.

(ii) in Sub-section (2) for the word “that the witness refused to take delivery of the summons,” substitute the words “or a wireless messenger that the witness refused to take delivery of the summons or the message, as the case may be”. COMMENTS [s 69.2] Scope and application of section 69.— This provision intended to avoid some delay in the service of summons on witnesses. It provides for the service of summons by post in addition to, or simultaneously with, the issue of summons in the usual way. It may be noted that it cannot be adopted for summoning the accused. End of Document

[s 70] Form of warrant of arrest and duration.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER VI PROCESSES TO COMPEL APPEARANCE > B.—Warrant of Arrest

The Code of Criminal Procedure, 1973 CHAPTER VI PROCESSES TO COMPEL APPEARANCE B.—Warrant of Arrest [s 70] Form of warrant of arrest and duration.— (1) Every warrant of arrest issued by a Court under this Code shall be in writing, signed by the presiding officer of such Court and shall bear the seal of the Court. (2) Every such warrant shall remain in force until it is cancelled by the Court which issued it, or until it is executed. [s 70.1] Changes.— Section 70 corresponds to old section 75 with substitution of the words “of such Court” for “or, in case of a Bench of Magistrates, by any member of such Bench” consequential on the abolition of Bench of Magistrates. [s 70.2] Scope and application of section 70.— To arrest is to apprehend by legal authority and a warrant of arrest is an order directing a certain person to arrest a named person who is to answer some charge and to produce him before Court [See Form 2, Schedule 2; Jagdish v Emperor, AIR 1940 All 178]. The provisions of the Code relate to the issue and execution of warrants in general [Kashi, 30 A 60]. A warrant must not necessarily issue because it is what is called a warrant case; the Court may and should issue a summons, if appearance can be secured by it and there are no special circumstances for resorting to a warrant (see sections 204 & 205). An arrest being a deprivation of personal liberty it is incumbent on the Magistrate to issue a warrant strictly in accordance with law [Jugal Kishore More v Chief Presidency Magistrate, Calcutta, AIR 1968 Cal 220 : 1968 Cr LJ 604 : 71 Cal WN 508; Surendra, 13 WR 27; Bidhumukhee, 6 BLR Ap 129]. A pardanashin woman should not ordinarily be compelled to appear in person in the first instance unless there is strong likelihood of the charge being proved [Prem, 1908 PWR 20 : 8 Cr LJ 484]. See notes to section 205, post: “Pardanashin Women”.

Any endorsement/variation, which is made on such warrant for the benefit of the person against whom the warrant is issued or the persons who are required to execute the warrant, would not render the warrant to be bad in law. What is material is that there is a power vested in the Court to issue a warrant and that power is to be exercised judiciously depending upon the facts and circumstances of each case. Being so, merely because the warrant uses the expression like “non-bailable” and that such terminology is not to be found in either section 70 or section 71 of the Code that by itself cannot render the warrant bad in law [Raghuvansh Dewanchand Bhasin v State of Maharashtra, AIR 2011 SC 3393 : 2012 Mad LJ (Cr) 689 : (2012) 9 SCC 791; see also Pushpavathy v Ministry of External Affairs, 2013 (3) Mad LJ (Cr) 129 : 2013 Cr LJ 4420 (Mad)].

Issue of a general warrant to arrest all persons committing a certain offence, or class of offences [Hastings, 9

Page 2 of 5 [s 70] Form of warrant of arrest and duration.— BHCR 154], or to search any house that the police think proper [Hargobind, 25 A 1] is illegal. Warrant issued against proprietors of a firm without giving name is illegal [S. Velappan v State of Kerala, AIR 1965 Ker 72 : 1965 (1) Cr LJ 296 : 1964 Ker LT 230 : 1965 Mad LJ (Cri) 177]. So also a conditional warrant e.g., a person is to be arrested, if he does not do a particular act [Caufman, 18 B 636]. Warrant for arrest of the accused concerning offences committed in a district other than F, should be issued by Magistrates of those districts and not by the Magistrate of F [Kali Charan v The State, AIR 1955 All 462]. Mode of execution of warrant (sections 46 and 75). Arrested person to be produced before Court (sections 76 and 80).

The date of warrant is not essential, although the better practice is to date it. The principle is that no period is expressed as running from the date of warrant [Matthen, 43 Cal WN 981, 997 : AIR 1939 PC 213 : 66 IA 222, a case under the Indian Extradition Act (15 of 1903)]. Warrant being a public document can be proved only by producing certified copy [Kantilal Ambalal v State of Gujarat, AIR 1968 Gug 100 : 1968 Cr LJ 758 : sections 74 and 77, Evidence Act].

Essentials of a Legal Warrant. A valid warrant must—

(1) Be in writing i.e., not verbal.

(2) Describe the person to be arrested with reasonable certainty, and particularly so as to establish his identity, viz. name, parentage (where necessary), designation, occupation, residence, etc. [Hastings, 9 BHCR 154; Caufman, 18 B 636]. Warrant without any address, description, or occupation of the person to be arrested was returned as invalid [Sagarmal, AIR 1940 B 397]. The onus is on the prosecution to prove identity [Devi Singh, 28 C 399]. Process is not invalid if parentage is not given where there could be no mistake as to identity [Bishnudayal, AIR 1948 P 366].

Magistrate or trial judge authorised to issue warrants for detention of prisoners should ensure that every warrant authorising detention specifies the age of the person to be detained. Judicial mind must be applied in cases where there is doubt about the age not necessarily by a trial—and every warrant must specify the age of the person to be detained. The Supreme Court called upon the authorities in the jails throughout India not to accept any warrant of detention as a valid one unless the age of detenu is shown therein. It shall be open to the jail authorities to refuse to honour a warrant, if the age of the person remanded to jail custody is not indicated. It would be lawful for such officer to refer back the warrant to the issuing Court for rectifying the defect before it is honoured [Sanjay Suri v Delhi Administration, 1988 Cr LJ 705 : AIR 1988 SC 414 : 1988 (1) Crimes 189].

(3) Specify the offence charged (and not a general omnibus charge) with clearness [Schedule 2, Form no. 2; Shewdyal, 6 WR 73; see Rananjai, AIR 1928 A 261]. A mere generic technical designation of the offence is not sufficient [Ramzan, 24 WR 23, 30 Cr]. Mere statement that arrest was to be under section 409 Indian Penal Code, 1860 is vague [Abdool Kadir, 20 WR 58]. When intention is an ingredient of an offence, warrant should state that the specific intention with which it was committed [Bidhoomookhi, 15 WR 4]. Mention in the warrant about the accused being wanted in cases for certain offences is sufficient compliance with Article 12 (1) Constitution [Kali Charan v The State, AIR 1955 All 462].

(4) Be signed, i.e., manual signing and not by stamp [Subramania, 6 M 369]. Though full signature is desirable, signing by initials is an irregularity not affecting validity of the warrant [Janki, 8 A 293; Abdul Sikdar, 5 Cal WN 447; Bankey, 3 PLJ 493 : 19 Cr LJ 747; Daitari, AIR 1956 Ori 97; Abdul Gaffur, 23 C 896 in which a warrant signed by initials was declared invalid is no longer good law]. Warrant must be signed by the presiding officer. Existence of a long practice of signature by Deputy Nazir is of no avail [Subbaramia, AIR 1934 M 206]. As a warrant affects personal liberty, it has to bear the appropriate signature and seal. Any laxity of proof might have serious consequences [Easwaramuthy, 48 Cal WN 477, 480 : AIR 1944 PC 54 : 71 IA 83]. The law does not require that every copy forwarded should be signed by the detaining authority himself [Md. Maqbool Damnoo v State of J&K, AIR 1972 SC 963 : 1972 Cr LJ 597 : (1972) 1 SCC 536].

Page 3 of 5 [s 70] Form of warrant of arrest and duration.— Presiding Officer is not necessarily the officer who has taken cognizance of the offence, but who presides at the time the warrant is to be signed [Kartick, AIR 1932 P 175; Ayub, AIR 1962 All 132]. A warrant signed by a Deputy Magistrate for another Magistrate is not valid [Ismail, Fakir, 9 Cal WN CLII; Jagpat, 18 Cr LJ 526].

(5) Be sealed. Seal of the Court is essential for validity. An unsealed warrant is invalid [Mahajan, 42 C 708; Hastings, 5 BHCR 154].

(6) Bear the name and designation of the person who is to execute [see Form 2, Schedule 2; sections 72 and 74; Gaman, 14 Cr LJ 142 and Shk. Nasur, 37 C 122; Abdul Rahim, 15 Cr LJ 576].

When accused is willing to surrender himself and seeking permission of Court to appear then a non-bailable warrant issued against him can be stayed. [Yogesh Kumar Bhargava v State of UP, 2001 Cr LJ 2835 (All) : 2001 All LJ 1170 : (2001) 42 All Cr C 1071].

The Magistrate has a power to issue a non-bailable warrant but that should ordinarily be issued as a last resort. Before issuing a non-bailable warrant, the Magistrate may issue summons and then a bailable warrant and only if the presence of the accused is not secured, he may have to take resort to the provision of issuance of a nonbailable warrant [Ramesh Kotecha v State of Maharashtra, 2010 (3) Crimes 604 (Bom) : 2010 Cr LJ 4070 (Bom)].?The Court in all circumstances in complaint cases at the first instance should first prefer issuing summons or bailable warrant failing which a non-bailable warrant should be issued [Vikas v State of Rajasthan, (2014) 3 SCC 321 : 2014 Cr LJ 183 (SC)].

The power being discretionary must be exercised judiciously with extreme care and caution. The Court should properly balance both personal liberty and societal interest before issuing warrants. There cannot be any straightjacket formula for issuance of warrants but as a general rule, unless an accused is charged with the commission of an offence of a heinous crime and it is feared that he is likely to tamper with or destroy the evidence or is likely to evade the process of law, issuance of non-bailable warrants should be avoided [Inder Mohan Goswami v State of Uttaranchal, AIR 2008 SC 251 : (2007) 12 SCC 1 : 2007 (12) Scale 15].

In Raghuvansh Dewanchand Bhasin v State of Maharashtra, AIR 2011 SC 3393 : (2012) 9 SCC 791, the Supreme Court issued the following guidelines to be adopted in all cases where non-bailable warrants are issued by the Courts in order to check or obviate the possibility of misuse of an arrest warrant:

(a) All the High Court shall ensure that the Subordinate Courts use printed and machine numbered Form no. 2 for issuing warrant of arrest and each such form is duly accounted for; (b) Before authenticating, the Court must ensure that complete particulars of the case are mentioned on the warrant; (c) The presiding Judge of the Court (or responsible officer specially authorized for the purpose in case of High Courts) issuing the warrant should put his full and legible signatures on the process, also ensuring that Court seal bearing complete particulars of the Court is prominently endorsed thereon; (d) The Court must ensure that warrant is directed to a particular police officer (or authority) and, unless intended to be open-ended, it must be returnable whether executed or unexecuted, on or before the date specified therein; (e) Every Court must maintain a register (in the format given below), in which each warrant of arrest issued must be entered chronologically and the serial number of such entry reflected on the top right hand of the process; (f)

No. warrant of arrest shall be issued without being entered in the register mentioned above and the concerned Court shall periodically check/monitor the same to confirm that every such process is always returned to the Court with due report and placed on the record of the concerned case;

Page 4 of 5 [s 70] Form of warrant of arrest and duration.— (g) A register similar to the one in clause (e) supra shall be maintained at the concerned police station. The Station House Officer of the concerned Police Station shall ensure that each warrant of arrest issued by the Court, when received is duly entered in the said register and is formally entrusted to a responsible officer for execution; (h) Ordinarily, the Courts should not give a long time for return or execution of warrants, as experience has shown that warrants are prone to misuse if they remain in control of executing agencies for long; (i)

On the date fixed for the return of the warrant, the Court must insist upon a compliance report on the action taken thereon by the Station House Officer of the concerned Police Station or the Officer Incharge of the concerned agency;

(j)

The report on such warrants must be clear, cogent and legible and duly forwarded by a superior police officer, so as to facilitate fixing of responsibility in case of misuse;

(k) In the event of warrant for execution beyond jurisdiction of the Court issuing it, procedure laid down in sections 78 and 79 of the Code must be strictly and scrupulously followed; and (l)

In the event of cancellation of the arrest warrant by the Court, the order canceling warrant shall be recorded in the case file and the register maintained. A copy thereof shall be sent to the concerned authority, requiring the process to be returned unexecuted forthwith. The date of receipt of the unexecuted warrant will be entered in the aforesaid registers. A copy of such order shall also be supplied to the accused [Raghuvansh Dewanchand Bhasin v State of Maharashtra, AIR 2011 SC 3393 : 2012 Mad LJ (Cr) 689 : (2012) 9 SCC 791 ].

[s 70.3] Failure by accused to attend Court on date of hearing.— The power and jurisdiction of Court to issue appropriate warrant against an accused on his failure to attend the Court on the date of hearing of the matter cannot be disputed. However, such a power has to be exercised judiciously and not arbitrarily. In case, the accused fails to remain present on the date of hearing of the matter who had been previously either directed or called upon to remain present, certainly a warrant can be issued [Raghuvansh Dewan Chand Bhasin v State of Maharashtra, 2008 Cr LJ 2127 (2129) (Bom) : 2008 All MR (Cri) 1684 : 2008 (3) Rec Cri R 762].

There could be various reasons for the absence of accused on the particular date of hearing. It could be for the reasons beyond his control. This could be known only when the accused appears before the Court and tenders his explanation for his absence. For that purpose it is not necessary to issue a non-bailable warrant. Besides the Court has to ascertain whether the accused is such a person who can be said to be of a character which is of such a nature that he is a chronic absentee or a person who has no respect for the Court’s order or Court’s process [Raghuvansh Dewan Chand Bhasin v State of Maharashtra, 2008 Cr LJ 2127 (2129) (Bom) : 2008 (3) AIR Bom R 235 : 2008 All MR (Cri) 1684 : 2008 (3) Rec Cri R 762].

In case of absence of advocate, who happens to be an accused person, it can hardly be believed that advocate would not know the consequences of his absence in the Court, when he is facing the criminal case against him. Certainly in such a case at first instance it would be appropriate for the Court to issue mere notice to the advocate to appear before the Court and to ascertain the reason for his absence in case he remains absent without prior leave in that regard. Similar approach can be in cases of educated person, who is expected to know the consequences of his absence. By no stretch of imagination it can be said that Court would be justified in presuming that accused would remain absent without any justification. The Court has also to take into consideration the traffic problems those are faced in the metropolitan city like Mumbai. Merely issuing a nonbailable warrant in such circumstances without considering all such aspects would not be a judicious exercise of such powers [Raghuvansh Dewan Chand Bhasin v State of Maharashtra, 2008 Cr LJ 2127 (2129) (Bom) : 2008 (3) AIR Bom R 235 : 2008 All MR (Cri) 1684 : 2008 (3) Rec Cri R 762].

Merely because the warrant discloses the expression like “non-bailable” and that such terminology is not to be found in sections 70 or 71 or the form under the Second Schedule that itself cannot render the warrant issued against any person to be bad in law [Raghuvansh Dewan Chand Bhasin v State of Maharashtra, 2008 Cr LJ 2127 (2131) (Bom) : 2008 (3) AIR Bom R 235 : 2008 All MR (Cri) 1684 : 2008 (3) Rec Cri R 762].

Page 5 of 5 [s 70] Form of warrant of arrest and duration.— When a police officer executed a non-bailable warrant already cancelled, it was held that it was a clear case of unnecessary interference with the liberty of citizen and the police officer was directed to pay Rs. 200 as compensation from his own account to arrestee [Raghuvansh Dewan Chand Bhasin v State of Maharashtra, 2008 Cr LJ 2127 (2132) (Bom) : 2008 (3) AIR Bom R 235 : 2008 All MR (Cri) 1684 : 2008 (3) Rec Cri R 762]. [s 70.4] Sub-section (2)—[Duration and cancellation].— It embodies the principle of English cases that a warrant remains valid until executed [Allomiya, 28 B 129, 137, 145] or cancelled, even, if there be a returnable date [Bindo, 7 P 478; Indar Mandal v State of Bihar, AIR 1967 Pat 141 : 1967 Cr LJ 574 : 1966 BLJR 353]. A warrant with bail to appear on a certain date remains in force; the direction as to bail only lapses after the date [Raushan, 13 Cal WN 109].

Warrant may be cancelled only by the issuing Court [Linton, 28 Cr LJ 326] on sufficient grounds and summons issued (see section 204; Janat, 8 Cr LJ 187]. Once cancelled it cannot be re-issued [Gurucharan, 1 Cal WN 650]. When the Magistrate of A writes to the Magistrate of B to return the warrant sent to him unexecuted, it amounts to cancellation. No formal order is necessary [Jagdish, AIR 1940 All 178].

Where there is a non-bailable warrant pending against the accused, the accused has to appear before the trial judge to recall the warrant under section 70(2) of Code of Criminal Procedure, 1973. Unless she makes her appearance and the warrant is recalled, it would be a mockery of judicial process if her application filed under section 317, Code of Criminal Procedure, 1973 or under section 205 of Code of Criminal Procedure, 1973 is entertained [Kalachi v State, 2006 Cr LJ 2053 (2055) (Mad)].

Where the non-appearance of petitioner before the Court was bona fide and without any intention, he was released on bail [Surendra Singh v State of Rajasthan, 2011 Cr LJ (NOC) 84 (Raj)]. [s 70.5] Mere issue of warrant of arrest deprecated.— The Chief Judicial Magistrate appears to have proceeded with the matter so far without taking proper and prompt step for execution of the warrants of arrest against the accused-appellants, and for recovering the penalty from the Sureties concerned despite repeated orders as appearing from the record. The conduct of the Chief Judicial Magistrate, on the fact of the record clearly appears to be good deal less happy and far from satisfactory, which cannot but earn from the Court, making him liable for appropriate action [Ram Chandra Singh v State, 1996 Cr LJ 839 at p 840 (Cal) (DB) : 1996 (1) All CrLR 868]. [s 70.6] Quashing of non-bailable warrant.— Where issuance of a non-bailable warrant is grossly unwarranted the High Court by exercising its discretion can quash the said non-bailable warrant [NC Jain v RK Synthetics and Fibres Pvt Ltd, 1999 Cr LJ 2922 (Bom)]. [s 70.7] Dismissal of application for recalling non-bailable warrant due to non-appearance of counsel.— An application for recalling a non-bailable warrant was dismissed due to non-appearance of the counsel for the petitioner accused. But the accused was very much present and surrendered before the Court and filed application for cancellation of warrant. It was held that the application should have been considered on merits, but it was dismissed mechanically. The order of remand was set aside. It was passed without recording any reason and in the absence of the witness and also without considering the fact that he was occupying a higher post in the Government [Deivasigmani v State, 2003 Cr LJ 1788 : 2003 Mad LJ (Cri) 201 (Mad)]. [s 70.8] Issuance of warrant of arrest against person residing in USA.— The Code of Criminal Procedure, 1973 does not expressly provide that there shall not be issuance of warrant of arrest for apprehension of an offender who committed offence in India punishable under Indian Law but resides in USA. Section 70 of Code of Criminal Procedure, 1973 dealing with issuance of warrant of arrest does not make any distinction between warrant of arrest to be executed within India and that outside India [Narendra Gudjud v CBI (EOW) Calcutta, 2009 Cr LJ 4278 (4282) (Cal)]. End of Document

[s 71] Power to direct security to be taken.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER VI PROCESSES TO COMPEL APPEARANCE > B.—Warrant of Arrest

The Code of Criminal Procedure, 1973 CHAPTER VI PROCESSES TO COMPEL APPEARANCE B.—Warrant of Arrest [s 71] Power to direct security to be taken.— (1) Any Court issuing a warrant for the arrest of any person may in its discretion direct by endorsement on the warrant that, if such person executes a bond with sufficient sureties for his attendance before the Court at a specified time and thereafter until otherwise directed by the Court, the officer to whom the warrant is directed shall take such security and shall release such person from custody. (2) The endorsement shall state— (a) the number of sureties; (b) the amount in which they and the person for whose arrest the warrant is issued, are to be respectively bound; (c) the time at which he is to attend before the Court. (3) Whenever security is taken under this section, the officer to whom the warrant is directed shall forward the bond to the Court. [s 71.1] Changes.— Section 71 corresponds to old section 76 without any change. [s 71.2] Scope and application of section 71.— Bailable warrant should issue even in non-bailable cases when the offence borders on the technical and the accused has some position [Sivamulu, 12 Cr LJ 430]. Arresting on a bailable warrant without first intimating the fact that would be taken is illegal [Shyama, 16 Cal WN 549]. On endorsement of order for personal recognizance only, the police cannot require a bond with sureties (Kala, 6 Cr LJ 275]. Deposit of money in lieu of bond (section 445). Bail bonds and recognizances are exempt from Court-fee [section 19, clause (xv) of the Court Fees Act, 1870].

After the accused has been taken into custody, the liability of sureties comes to an end. If he afterwards absconds from the custody of the Court, the sureties cannot be held liable [Karim Shah v State of UP, 2008 Cr LJ 2974 (All)]. End of Document

[s 72] Warrants to whom directed.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER VI PROCESSES TO COMPEL APPEARANCE > B.—Warrant of Arrest

The Code of Criminal Procedure, 1973 CHAPTER VI PROCESSES TO COMPEL APPEARANCE B.—Warrant of Arrest [s 72] Warrants to whom directed.— (1) A warrant of arrest shall ordinarily be directed to one or more police officers; but the Court issuing such a warrant may, if its immediate execution is necessary and no police officer is immediately available, direct it to any other person or persons, and such person or persons shall execute the same. (2) When a warrant is directed to more officers or persons than one, it may be executed by all, or by any one or more of them. [s 72.1] Changes.— Section 72 corresponds to old section 77. In sub-section (1) words “and, when issued by a Presidency Magistrate, shall always be so directed” after the words “one or more police officers” have been omitted and consequently the words “the Court” after “but” have been substituted for “any other Court”. [s 72.2] Scope and application of section 72.— As a general rule a warrant should not be directed to a private person unless there is need of immediate arrest and no police officer is immediately available [Surendra, 13 WR 27; Pasuvarthi, 51 M 873].

A warrant should ordinarily be addressed to a police officer by name, but its omission is a mere irregularity [Shankar, AIR 1922 O 224 : Bankey, 19 Cr LJ 747] unless the accused is prejudiced thereby [Ma Kin, AIR 1924 R 383]. But where the warrant was addressed to the bailiff of the Court and was executed by another person without an endorsement from the former, it was illegal [Ghasita, AIR 1921 L 236].

Warrant to compel appearance of the accused cannot be directed to be served on the accused persons though their counsel [Satya Securities v Uma, 2002 Cr LJ 3714 : 2002 (4) Rec Cr R 781 (HP)].

Where an accused resides in some foreign country, extradition proceedings have to be resorted to in order to secure his presence in the Court, and a warrant has to be issued for his arrest. For the execution of the warrant, however, the assistance of the Executing Government is to be obtained. So, the Government of India is not prohibited from securing through diplomatic channels the extradition of an offender for trial of an offence committed in India because of the Extradition Act 34 of 1962 [State of WB v J.K. More, AIR 1969 SC 1171 : 1969 Cr LJ 1559 : (1969) 1 SCC 440, 454 (SC)].

Page 2 of 2 [s 72] Warrants to whom directed.— End of Document

[s 73] Warrant may be directed, to any person.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER VI PROCESSES TO COMPEL APPEARANCE > B.—Warrant of Arrest

The Code of Criminal Procedure, 1973 CHAPTER VI PROCESSES TO COMPEL APPEARANCE B.—Warrant of Arrest [s 73] Warrant may be directed, to any person.— (1) The Chief Judicial Magistrate or a Magistrate of the first class may direct a warrant to any person within his local jurisdiction for the arrest of any escaped convict, proclaimed offender or of any person who is accused of a non-bailable offence and is evading arrest. (2) Such person shall acknowledge in writing the receipt of the warrant, and shall execute it if the person for whose arrest it was issued, is in, or enters on, any land or other property under his charge. (3) When the person against whom such warrant is issued is arrested, he shall be made over with the warrant to the nearest police officer, who shall cause him to be taken before a Magistrate having jurisdiction in the case, unless security is taken under Section 71. [s 73.1] Changes.— Section 73 corresponds to old section 78 with the following changes:

(1) In sub-section (1) the words “The Chief Judicial Magistrate, or a Magistrate of the first class”, “person”, “local jurisdiction” and “is evading arrest” have been substituted for “A District Magistrate or Subdivisional Magistrate”, “landholder, farmer or manager of land”, “district or sub-division” and “who has eluded pursuit” respectively. The words “of any” after “proclaimed offender or have been added”. (2) In sub-section (2) the word “person” and “any land or other property” have been substituted for “landholder, farmer or manager and his land or farm, or the land” respectively.

The effect of changes is that,—(i) the power to direct this special type of warrant has been conferred on the Chief Judicial Magistrate and all Magistrates of the first class and (ii) the warrant may now be directed to any person within his local jurisdiction instead of some special categories of persons. [s 73.2] Scope and application of section 73.— Since warrant is and can be issued for appearance before the Court only and not before the police and since authorisation for detention in police custody is neither to be given as a matter of course nor on the mere asking of the police, but only after exercise of judicial discretion based on materials placed before him, it cannot be said that warrant of arrest under section 73 could be issued by the Courts solely for the production of the

Page 2 of 2 [s 73] Warrant may be directed, to any person.— accused before the police in aid of investigation [State v Dawood Ibrahim Kaskar, AIR 1997 SC 2494 : 1997 Cr LJ 2989 : 1997 SCC (Cri) 636 : 1997 (2) Crimes 92 (SC)].

Section 73 of the Code is of general application and that in course of investigation, a Court can issue a warrant in exercise of power thereunder. The Chief Judicial Magistrate or a Judicial Magistrate of the First Class may direct a warrant to any person within his local jurisdiction under section 73 of the Code [Nirmaljit Singh Narula v State of Bihar, 2014 (1) PLJR 51 (Pat)]. [s 73.3] Warrant of arrest, when can be issued.— From reading of the provisions of section 73 of Code of Criminal Procedure, 1973 it would appear that warrant of arrest can be issued under the Code in three circumstances. Firstly for arrest of escaped convict; secondly, for arrest of proclaimed offender and thirdly for arrest of any person who is an accused of non-bailable offence and is evading arrest. In the third circumstance, a warrant can be issued even pending investigation [Randhir Sharma v State of Bihar, 2009 Cr LJ 3889 (3892) (Pat)].

Whenever a warrant of arrest is issued against a person accused of a non-bailable offence, the Court must satisfy itself that conditions imposed under section 73 of the Code of Criminal Procedure, 1973 have been adhered to [Ajay Kumar Singh v State of Jharkhand, Cr. M.P. No. 341 of 2014 decided on 7 March 2014 by the Jharkhand High Court].

If any person accused of a non-bailable offence is not evading arrest then, he can be arrested by the police under section 41 of the Code and a warrant under section 73, Code of Criminal Procedure, 1973 would not be required against him [Nirmaljit Singh Narula v State of Bihar, 2014 (1) PLJR 51 (Pat)]. [s 73.4] Order as to warrant of arrest.— The warrant can be issued only for appearance of the accused before the Court pending investigation and not solely for the purpose of production before the police in aid of investigation [Randhir Sharma v State of Bihar, 2009 Cr LJ 3889 (3892) (Pat)]. [s 73.5] Requisition for warrant of arrest.— The warrant of arrest against a person accused of non-bailable offence cannot be granted on mere asking. The allegation of charging a person of being an accused of non-bailable offence must be apparent from the requisition filed by police. The requisition filed by the police must disclose that there is evidence to substantiate the allegation that the petitioner is an accused of a non-bailable offence and is evading arrest also at the same time [Randhir Sharma v State of Bihar, 2009 Cr LJ 3889 (3892) (Pat)]. [s 73.6] Notes.— “Proclaimed offender” [see section 41(e); section 82]. End of Document

[s 74] Warrant directed to police officer.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER VI PROCESSES TO COMPEL APPEARANCE > B.—Warrant of Arrest

The Code of Criminal Procedure, 1973 CHAPTER VI PROCESSES TO COMPEL APPEARANCE B.—Warrant of Arrest [s 74] Warrant directed to police officer.— A warrant directed to any police officer may also be executed by any other police officer whose name is endorsed upon the warrant by the officer to whom it is directed or endorsed. [s 74.1] Changes.— Section 74 corresponds to old section 79 verbatim. [s 74.2] Scope and application of section 74.— When the warrant is first directed to a police officer under section 74 only his official designation is required to be given and not name, Form 2, Schedule 2 being variable [Bankey, 3 PLJ 493] : but an endorsement by that officer to another police officer should be by his name [Durga, 4 Cal WN 85; Kartick, AIR 1932 P 171 : 33 Cr LJ 706] though omission of his designation is not material [Kartick supra]. A Superintendent of Police appointed as Principal of Training School is competent to execute a warrant [Kashyap, AIR 1959 J&K 56]. Endorsement can be made only by the police officer to whom warrant is directed and by no other, further endorsement can only be to a police officer and not to any other officer e.g. a process serving peon [Durga, 27 C 457]. Execution of warrant by another officer without endorsement is illegal [Ghasita, AIR 1921 L 236]. Endorsement may be on the warrant itself or by a separate writing [Manghuram, 32 Cr LJ 916] but endorsement on a copy of warrant is illegal [Dalip, 18 A 246]. Endorsement by initials is undesirable [Abdul Sikdar, 5 Cal WN 447]. Warrant addressed to private person cannot be endorsed [Pasuvarthi, 51 M 873].

Endorsement without mentioning name of the endorsee is illegal [Kochukunja, (1962) 2 Cr LJ 437 (Ker)]. Warrant endorsed to one police officer can be endorsed to another police officer but not to a private person [Inder Mandal v State of Bihar, AIR 1967 Pat 141 : 1967 Cr LJ 574 : 1966 BLJR 353]. [s 74.3] Warrant under other Acts.— A special warrant specifying the person to whom authority is given cannot be delegated [Shk. Nasur, 37 C 122 (Bengal Chaukidari Act); Mithu, 10 Cr LJ 3 (Bombay Gambling Act)]. Section 74 applies to warrant under Public Gambling Act, 1867 [Ram Pd, AIR 1945 N 216] or UP Gambling Act [Siddanna v State of Mysore, AIR 1966 Mys 289 : 1966 Cr LJ 1280 : 1966 (1) Mys LJ 110]; see however the following cases contra —section 74 has not been made applicable to a warrant issued under section 5 Public Gambling Act. If such a warrant issued in favour of a particular officer is endorsed in favour of another officer, the presumption under section 6 [ibid.] does not arise [Kimat Mal, AIR 1956 A 449; see Gobinda, AIR 1940 C 586; Thavarmal, AIR 1929 B 157; Kundan, AIR 1948 L 81].

Page 2 of 2 [s 74] Warrant directed to police officer.—

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[s 75] Notification of substance of warrant.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER VI PROCESSES TO COMPEL APPEARANCE > B.—Warrant of Arrest

The Code of Criminal Procedure, 1973 CHAPTER VI PROCESSES TO COMPEL APPEARANCE B.—Warrant of Arrest [s 75] Notification of substance of warrant.— The police officer or other person executing a warrant of arrest shall notify the substance thereof to the person to be arrested, and, if so required, shall show him the warrant. [s 75.1] Changes.— Section 75 corresponds to old section 80 verbatim. [s 75.2] Scope and application of section 75.— Section 46 deals with making of arrest. Section 75 pre-supposes that the officer should have the warrant with him [Amarnath, 5 A 318; Dalip, 18 A 246, 251; Ganeshi, 27 A 258], “Notify the substance” means state clearly and briefly so that the accused may know what is the charge and before what Court he is to appear [Bankey, 3 PLJ 493]. An arrest without notifying the substance of the warrant is unlawful [Satish, 26 C 748; Abdul Gafur, 23 C 896]. Where the petitioner detenu was informed about reason of arrest when detention order against him was passed, it could not be said that substance was not notified to petitioner detenu [Jayantibala Sahoo v State of Orrisa, 2007 Cr LJ (NOC) 475 (Ori)]. But omission to state particulars after the warrant is shown and opportunity is given to read it, or have it read, does not invalidate arrest [Bankey, supra]. Provision of section 75 cannot be extended to detention order under the Preventive Detention Act, 1950 [Tangri, AIR 1961 A 542], or Defence of India Rules, 1962 [MN Ugrappa v Government of Mysore, AIR 1966 My 207 : 1966 Cr LJ 929 : 1965 (2) Mys LJ 584].

The person to be arrested is entitled to see that the person arresting has authority. Merely showing the warrant is not sufficient, an opportunity for reading should be given [Satish, 26 C 749; Abdul Gafur, 23 C 896; Tulsiram, 13 B 168]. The warrant need not be shown in the first instance when substance is to be notified. It is then to be shown if so desired by the person [Baroda, 25 Cal WN 815]. Fact of notification is not required to be mentioned in the report [Kartik, AIR 1932 P 171]. [s 75.3] Non-cognizable offence.— Arrest without warrant for non-cognizable offence is illegal [46 M 605 (FB)]. [s 75.4] Non-Compliances.— An arrest without compliance with the above formalities of section 75 may in circumstances of organised resistance be justifiable by recourse to the provisions of section 46(2) [Darbesh, 33 Cal WN 284]. In case of

Page 2 of 2 [s 75] Notification of substance of warrant.— resistance at the mere mention of a warrant, the correct thing would be first to overcome resistance and then to notify the substance or show the warrant [Ramji, AIR 1938 A 120]. [s 75.5] Ground to be intimated.— See section 50 under which a person arrested without warrant shall forthwith be informed of the full particulars or other grounds of arrest and in case of other than a non-bailable offence that he is entitled to be released on bail and he may arrange for sureties.

End of Document

[s 76] Persons arrested to be brought before Court without delay.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER VI PROCESSES TO COMPEL APPEARANCE > B.—Warrant of Arrest

The Code of Criminal Procedure, 1973 CHAPTER VI PROCESSES TO COMPEL APPEARANCE B.—Warrant of Arrest [s 76] Persons arrested to be brought before Court without delay.— The police officer or other person executing a warrant of arrest shall (subject to the provisions of Section 71 as to security) without unnecessary delay bring the person arrested before the Court before which he is required by law to produce such person : Provided that such delay shall not, in any case, exceed twenty-four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate’s Court. [s 76.1] Changes.— Section 76 corresponds to old section 81 with a proviso added to it by way of abundant caution so that delay shall not in any case exceed twenty-four hours as enjoined by Article 22 of the Constitution, and also to bring the proviso into line with provision of section 57 for person arrested with warrant. [s 76.2] Scope and application of section 76.— The warrant being exhausted after arrest, the person should be produced before a Magistrate as soon as possible. If further detention is necessary, there must be a fresh order by the Magistrate, See section 167.

End of Document

[s 77] Where warrant may be executed.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER VI PROCESSES TO COMPEL APPEARANCE > B.—Warrant of Arrest

The Code of Criminal Procedure, 1973 CHAPTER VI PROCESSES TO COMPEL APPEARANCE B.—Warrant of Arrest [s 77] Where warrant may be executed.— A warrant of arrest may be executed at any place in India. [s 77.1] Changes.— Section 77 corresponds to old section 82 verbatim. [s 77.2] Notes.— “India” see section 2(f). As to liability of Indian citizens for offences committed beyond India, see section 188 and the Extradition Act, 34 of 1962. Execution of the warrant is not restricted to the local limits of the jurisdiction of the Magistrate issuing the warrant or of the Court to which he is subordinate. Warrant sent by Magistrate to Govt. of India of the Court to which he is subordinate. Warrant sent by Magistrate to Govt. of India through secretary, Home Department for securing presence of the accused living outside India to undergo trial is not illegal or irregular [State of WB v Jugal Kishore More, AIR 1969 SC 1171 : 1969 Cr LJ 1559 : (1969) 1 SCC 440].

End of Document

[s 78] Warrant forwarded for execution outside jurisdiction.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER VI PROCESSES TO COMPEL APPEARANCE > B.—Warrant of Arrest

The Code of Criminal Procedure, 1973 CHAPTER VI PROCESSES TO COMPEL APPEARANCE B.—Warrant of Arrest [s 78] Warrant forwarded for execution outside jurisdiction.— (1) When a warrant is to be executed outside the local jurisdiction of the Court issuing it, such Court may, instead of directing the warrant to a police officer within its jurisdiction, forward it by post or otherwise to any Executive Magistrate or District Superintendent of Police or Commissioner of Police within the local limits of whose jurisdiction it is to be executed; and the Executive Magistrate or District Superintendent or Commissioner shall endorse his name thereon, and if practicable, cause it to be executed in the manner hereinbefore provided. (2) The Court issuing a warrant under sub-section (1) shall forward, along with the warrant, the substance of the information against the person to be arrested together with such documents, if any, as may be sufficient to enable the Court acting under Section 81 to decide whether bail should or should not be granted to the person. [s 78.1] Changes.— (1) Sub-sections (1) and (2) of old section 83 have been combined into sub-section (1) with some alterations.

(2) Sub-section (2) has been added requiring the Court issuing the warrant to send along with the warrant the substance of information and relevant documents, if any, to enable the Court acting under section 81 to decide whether bail should or should not be granted. See notes under section 81. [s 78.2] Scope and application of section 78.— Section 78 enables the Magistrate to forward the warrant to the authorities of the District where the warrant is required to be executed. It is not compulsory in every case that the Magistrate should necessarily resort to the alternative procedure contemplated under section 78 [Kura Rajaiah v Government of AP, 2007 Cr LJ 2031 (2041) (AP) : 2007 (1) Andh LD (Cr) 845]. “Outside the local jurisdiction” includes any place within India. The Code does not authorise the execution of any warrant outside India [Karimbux, AIR 1940 SC 154]. The section applies also to warrants issued under Special Acts [Kattyan 20 M 235; Gauri, 20 A 124; Chetu, 11 PR 1898]. It makes no difference, if a warrant is sent to a Court through the complainant [Dhrupatia, AIR 1956 B 591]. Magistrate to whom warrant is forwarded cannot decline execution [Chetu, supra]. Court receiving warrant for execution is not required to decide its legality [Debendra Nath Roy v The State, AIR 1969 Cal 340 : 1969 Cr LJ 879 : 73 Cal WN 97]. Processes for service in any State or area in India outside the territories to which the Code extends, e.g., J&K, Nagaland, tribal areas of Assam [see section 1(2)] and vice versa (section 105)]. [s 78.3] Execution outside India.— Execution of a warrant outside India is governed by the Extradition Act, 1961 and not by the Code [State of WB

Page 2 of 2 [s 78] Warrant forwarded for execution outside jurisdiction.— v Jugal Kishore More, AIR 1969 SC 1171 : 1969 Cr LJ 1559 : (1969) 1 SCC 440]. But illegality of arrest does not invalidate trial in India [Savarkar, 1911 ILR 35 B 225].

The words “In the manner hereinbefore provided” in section 78(1) of Code of Criminal Procedure, 1973 refers to the modes of execution of warrant provided in sections 71 to 75 of the Code. Section 78 applies to a case where the warrant is to be executed outside the local jurisdiction of the Court issuing the same. An internal Court on receipt of a warrant for execution issued by an external Court within section 105 has no power to get it executed in a place outside its jurisdiction by taking recourse to section 78 [Roy, 59 Cal WN 300 : AIR 1955 C 277]. Warrant sent to another place must be properly addressed and containing merely the name of the accused without address, description or occupation and forwarded to Third Presidency Magistrate, Bombay (where there was no such officer) was returned as clearly bad and invalid [Sagarmal, AIR 1940 B 397]. Where a warrant sent to Bombay mentioned the words “Sub-Inspector of a Police station” in the blank reserved for the name of the officer, it was no more than an irregularity. The intention was that it should be taken to the Chief Presidency Magistrate for execution under sub-section (2) [Dhrupatia, AIR 1956 B 591]. Putting the name of executing Court in the form of warrant being merely technical irregularity does not make the warrant invalid [Debendra, supra].

Arrest of a person in one State because he is wanted in another State for detention is illegal [Mohan Kumaramangalam, AIR 1951 M 583]. End of Document

[s 79] Warrant directed to police officer for execution outside jurisdiction.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER VI PROCESSES TO COMPEL APPEARANCE > B.—Warrant of Arrest

The Code of Criminal Procedure, 1973 CHAPTER VI PROCESSES TO COMPEL APPEARANCE B.—Warrant of Arrest [s 79] Warrant directed to police officer for execution outside jurisdiction.— (1) When a warrant directed to a police officer is to be executed beyond the local jurisdiction of the Court issuing the same, he shall ordinarily take it for endorsement either to an Executive Magistrate or to a police officer not below the rank of an officer-in-charge of a police station, within the local limits of whose jurisdiction the warrant is to be executed. (2) Such Magistrate or police officer shall endorse his name thereon and such endorsement shall be sufficient authority to the police officer to whom the warrant is directed to execute the same, and the local police shall, if so required, assist such officer in executing such warrant. (3) Whenever there is reason to believe that the delay occasioned by obtaining the endorsement of the Magistrate or police officer within whose local jurisdiction the warrant is to be executed will prevent such execution, the police officer to whom it is directed may execute the same without such endorsement in any place beyond the local jurisdiction of the Court which issued it. [s 79.1] Changes.— Section 79 corresponds to old section 84 with the following changes :

(1) In sub-section (1) the words “an Executive” have been substituted for a and the word “police” has been inserted before “station”. (2) In sub-section (2) the words “within such limits” after “execute the same” have been omitted being unnecessary. [s 79.2] Scope and application of section 79.— When a warrant is directed to a police officer for execution outside jurisdiction, he cannot endorse it to any other officer discharging duties outside the jurisdiction of Court issuing the warrant. The special provisions in sections 78 to 81 must be deemed to limit and control section 74 [Devi Singh v State of Rajasthan, AIR 1964 Raj 36 : 1964 (1) Cr LJ 359 : 1963 Raj LW 642].

In the instant case, however, the learned Magistrate at Khadki not only took cognizance of the alleged offences but also issued process against the accused. But it will be too much to expect the Magistrate to examine the question of his jurisdiction closely at the initial stage when the accused have not yet made their appearance

Page 2 of 2 [s 79] Warrant directed to police officer for execution outside jurisdiction.— before the Court. Moreover, in some cases, as in this case, the question of territorial jurisdiction of the Court is somewhat complicated, which can be decided by bilateral hearing only. What is expected of him is the prima facie satisfaction about his having jurisdiction. The High Court should not decide that issue in this petition and leave the same to be decided by the Court in which the complaint is filed [Motorola Incorporated v UOI, 2004 Cr LJ 1576 : 2003 All MR (Cri) 1903 : 2004 (1) Bom CR (Cri) 26 (Bom)].

Where endorsement was not obtained on ground of delay in execution of warrant, it was held that material must be placed to substantiate such opinion [Kura Rajaiah v State, 2007 Cr LJ 2031 (2041) (AP) : 2007 (1) Andh LD (Cr) 845]. End of Document

[s 80] Procedure on arrest of person against whom warrant issued.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER VI PROCESSES TO COMPEL APPEARANCE > B.—Warrant of Arrest

The Code of Criminal Procedure, 1973 CHAPTER VI PROCESSES TO COMPEL APPEARANCE B.—Warrant of Arrest [s 80] Procedure on arrest of person against whom warrant issued.— When a warrant of arrest is executed outside the district in which it was issued, the person arrested shall, unless the Court which issued the warrant is within thirty kilometres of the place of arrest or is nearer than the Executive Magistrate or District Superintendent of Police or Commissioner of Police within the local limits of whose jurisdiction the arrest was made, or unless security is taken under Section 71, be taken before such Magistrate or District Superintendent or Commissioner. [s 80.1] Changes.— Section 80 corresponds to old section 85 with insertion of the word “Executive” before “Magistrate” and omission of words “in a presidency town” after “Commissioner of Police”.

End of Document

[s 81] Procedure by Magistrate before whom such person arrested is brought.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER VI PROCESSES TO COMPEL APPEARANCE > B.—Warrant of Arrest

The Code of Criminal Procedure, 1973 CHAPTER VI PROCESSES TO COMPEL APPEARANCE B.—Warrant of Arrest [s 81] Procedure by Magistrate before whom such person arrested is brought.— (1) The Executive Magistrate or District Superintendent of Police or Commissioner of Police shall, if the person arrested appears to be the person intended by the Court which issued the warrant, direct his removal in custody to such Court: Provided that, if the offence is bailable, and such person is ready and willing to give bail to the satisfaction of such Magistrate, District Superintendent or Commissioner, or a direction has been endorsed under Section 71 on the warrant and such person is ready and willing to give the security required by such direction, the Magistrate, District Superintendent or Commissioner shall take such bail or security, as the case may be, and forward the bond, to the Court which issued the warrant: Provided further that if the offence is a non-bailable one, it shall be lawful for the Chief Judicial Magistrate (subject to the provisions of Section 437), or the Sessions Judge, of the district in which the arrest is made on consideration of the information and the documents referred to in sub-section (2) of Section 78 to release such person on bail. (2) Nothing in this section shall be deemed to prevent a police officer from taking security under Section 71. [s 81.1] STATE AMENDMENT IN SECTION 81 Uttar Pradesh.—The following amendments were made by U.P. Act 1 of 1984, section 9 (w.e.f. 1 May 1984).

Section 81.—In Section 81, sub-section (1) insert the following third proviso:—

Provided also that where such person is not released on bail or where he fails to give such security as aforesaid, the Chief Judicial Magistrate in the case of a non-bailable offence, or any Judicial Magistrate in the case of a bailable offence may pass such orders as he thinks fit for his custody till such time as may be necessary for his removal to the Court which issued the warrant.

Page 2 of 2 [s 81] Procedure by Magistrate before whom such person arrested is brought.— COMMENTS [s 81.2] Changes.— Section 81 corresponds to old section 86 with the following changes:

In sub-section (1) the words “The Executive” have been substituted for “Such” and the words “of Police” and a second proviso have been added. The proviso has been added to remove the hardship and inconvenience of a person who is arrested for a non-bailable offence at a place far away from the Court issuing the warrant of arrest as under the existing provision he has necessarily to be transported in custody to the Court issuing warrant before he can claim to be released on bail. Power has been conferred on the Chief Judicial Magistrate or Sessions Judge of the district in which arrest is made to release the person on bail subject to the provisions of the Code relating to bail. To enable the Chief Judicial Magistrate or the Sessions Judge to decide whether bail should be granted or not a provision has been made [see section 78(2)]. [s 81.3] Scope and application of section 81.— Two persons who were arrested in Bombay in execution of warrant issued by the Chief Presidency Magistrate, Calcutta, were ordered by a Presidency Magistrate, Bombay, to be taken to Calcutta. He should have satisfied himself that the persons arrested appear to be the persons intended by the issuing Court and then directed their removal to the issuing Court. He is not entitled to institute an inquiry under section 187 which does not override the provisions of sections 70-81 [Sagarmal, AIR 1940 B 397 : 1941 Bom 16]. Bond (Schedule 2 Form No. 3). Bond without sureties (section 436).

When a person is arrested in pursuance of warrant outside the jurisdiction of the Court issuing the warrant, Chief Judicial Magistrate of the place of arrest (in this case Addl. Chief Metropolitan Magistrate) has, under second proviso to section 81 and subject to the provisions of the section, jurisdiction to grant him bail [Govinda Pd v State of WB, 1975 Cr LJ 1249 : 79 Cal WN 474]. [s 81.4] Pre-arrest Bail.— Section 81 does not apply to pre-arrest bail [Syed Zafrul Hassan v State, AIR 1986 Pat 194 : 1986 Cr LJ 605 : 1996 Pat LJR 274 : 1986 BLJR 298]. [s 81.5] Section 81(1)—Proviso.— Section 81(1) proviso cannot be resorted to while considering an application for pre-arrest bail [State of Manipur v Vikas Yadav, 2000 Cr LJ 4229 (Gauhati)]. End of Document

[s 82] Proclamation for person absconding.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER VI PROCESSES TO COMPEL APPEARANCE > C.—Proclamation and attachment

The Code of Criminal Procedure, 1973 CHAPTER VI PROCESSES TO COMPEL APPEARANCE C.—Proclamation and attachment [s 82] Proclamation for person absconding.— (1) If any Court has reason to believe (whether after taking evidence or not) that any person against whom a warrant has been issued by it has absconded or is concealing himself so that such warrant cannot be executed, such Court may publish a written proclamation requiring him to appear at a specified place and at a specified time not less than thirty days from the date of publishing such proclamation. (2) The proclamation shall be published as follows:— (i) (a) it shall be publicly read in some conspicuous place of the town or village in which such person ordinarily resides; (b) it shall be affixed to some conspicuous part of the house or homestead in which such person ordinarily resides or to some conspicuous place of such town or village; (c) a copy thereof shall be affixed to some conspicuous part of the Court-house; (ii) the Court may also, if it thinks fit, direct a copy of the proclamation to be published in a daily newspaper circulating in the place in which such person ordinarily resides. (3) A statement in writing by the Court issuing the proclamation to the effect that the proclamation was duly published on a specified day, in the manner specified in clause (i) of sub-section (2), shall be conclusive evidence that the requirements of this section have been complied with, and that the proclamation was published on such day. 1[(4) Where a proclamation published under sub-section (1) is in respect of a person accused of an offence punishable under Sections 302, 304, 364, 367, 382, 392, 393, 394, 395, 396, 397, 398, 399, 400, 402, 436, 449, 459 or 460 of the Indian Penal Code, and such person fails to appear at the specified place and time required by the proclamation, the Court may, after making such inquiry as it thinks fit, pronounce him a proclaimed offender and make a declaration to that effect. (5) The provisions of sub-sections (2) and (3) shall apply to a declaration made by the Court under subsection (4) as they apply to the proclamation published under sub-section (1).] [s 82.1] Changes.— Section 82 corresponds to old section 87 with the following changes :

Page 2 of 7 [s 82] Proclamation for person absconding.—

(1) In sub-section (2), sub-clauses (a), (b) and (c) have been placed under clause (i) and clause (ii) has been added enabling the Court to direct publication of the proclamation in a daily newspaper in addition to the modes described in clause (i). (2) In sub-section (3) certain words have been added. [s 82.1.1] CrPC (Amendment) Act, 2005 (25 of 2005).— After sub-section (3), new sub-sections (4) and (5) have been added.

Notes on Clauses

This clause seeks to insert new sub-sections (4) and (5) in section 82 empowering the Court to make the declaration that the person is a proclaimed offender where he fails to appear at the specified place and time mentioned in the proclamation issued under sub-section (1) of section 82 in relation to offences under section 302, 304, 364, etc., of the Indian Penal Code. (Notes on Clauses, Clause 12)

This amendment in the section has come into force w.e.f. 23 June 2006 vide Notification No. S.O. 923(E), dated 21 June 2006. [s 82.2] Scope and application of section 82.— The provisions contained in section 82 of the Code of Criminal Procedure, 1973 were put on the statute book for certain purpose. It was enacted to secure the presence of the accused [Vimalben Ajitbhai Patel v Vatslaben Ashokbhai Patel, (2008) 4 SCC 649 : AIR 2008 SC 2675; K. Rama Krishna v State of AP, 2011 (1) Crimes 550 (AP)]. Section 82 of the Code of Criminal Procedure, 1973 has mainly three parts. As per first part of the section it is well settled that issuance of warrant is condition precedent for issuance of process of proclamation under section 82 of the Code. The Court must be satisfied that it has reason to believe that the accused has been absconding or concealing himself so that such warrant cannot be executed. Second part suggests as to how proclamation has to be given effect to or published to make the accused acquaint that his appearance is required in connection with particular case before a particular Court. The third part as indicated under subsection (4) of section 82 of Code of Criminal Procedure, 1973 gives more discretion to make inquiry against an accused who has committed offence indicated under sub-section (4). After recording reasons the Court can declare an accused of such offence as proclaimed offender [Mahendra Kumar Ruiya v State of Jharkhand, 2013 (3) JLJR 407 (Jhar)].

The section empowers the Court to issue proclamation against a person when a warrant against him is returned unexecuted for evasion, concealment or abscondence. The power is common to all Magistrates and can be exercised against persons concerned in summons cases or witnesses [Yasin, 10 Cr LJ 306]. Proclamation cannot be issued without first issuing a warrant [Bishnudayal, AIR 1943 Pat 366]. The Court must await the return of the warrant [Farzand, 19 A 64]. Proclamation is no legal evidence of the issue of warrant or order of arrest which has to be proved under the Evidence Act [Easwaramurthi, 48 Cal WN 477 : AIR 1944 PC 54 : 71 IA 83]. If there is no authority to issue warrant the order of proclamation is necessarily illegal [Kanwar, 15 PR 1893]. As the section entails penal consequence, it must be strictly construed [Pal Singh, AIR 1955 Pu 18].

Mere return of warrant of arrest without execution without anything more does not authorise the Magistrate to issue an order for proclamation and attachment. Proclamation and attachment affects certain valuable rights of a person although he might be facing a Criminal case as an accused and the same is not to be interfered with in a casual and mechanical manner, but is to be affected by strict adherence to the provision of law [Md. Nazrul Islam v State of Assam, 2008 Cr LJ 3374 (3378) (Gau) : 2008 (4) Gau LR 704].

Page 3 of 7 [s 82] Proclamation for person absconding.—

The provisions of law, particularly, sections 82 and 83 of Code of Criminal Procedure, 1973 make it abundantly clear that the Court must record its reasons for taking action for proclamation and attachment and it must also satisfy about the abscondance of the accused as well as about the dealing with his property as contained under section 83, Code of Criminal Procedure, 1973 and without such compliance, the issuance of such order for proclamation and attachment cannot be said to have done in valid exercise of power [Md. Nazrul Islam v State of Assam, 2008 Cr LJ 3374 (3378) (Gau) : 2008 (4) Gau LR 704].

The sine qua-non for an action under section 82 is the prior issuance of warrant of arrest by the Court. There must be a report before the Magistrate that the person against whom the warrant was issued by him had absconded or had been concealing himself so that such warrant can be issued. An attachment order can be issued only after the issuance of proclamation [Rohit Kumar v State of NCT Delhi, 2008 Cr LJ 3561 (3565) : 2007 (4) CCR 1 : 2008 (1) Rec Cri R 101; see also Ballav Narayan Lenka v State of Orissa, 2005 Cr LJ 3365 (Orissa) : (2005) 99 Cut LT 455 : 2006 (1) CCR 185; Rajeshwar v State of UP, 1998 (4) Crimes 26 (29) (All)].

Appellate Court can hear and decide appeal against acquittal in absence of the accused when section 82 Code of Criminal Procedure, 1973 was duly complied with [State of Gujarat v Narubhai Amrabhai Chunara Vaghri, 1997 Cr LJ 3479 : 1996 (3) Guj LR 143 : 1997 (1) Crimes 197 (Guj)].

Where the Magistrate had passed orders with prima facie error on the face of records and the aspect relating to 30 days’ time was totally absent, it was held that the procedure provided in section 82 of the Code had not been followed and thus the order passed by the trial Court was liable to be set aside [L Vijaya Kumar v State, 2010 Cr LJ 1309 (1311) (Mad) : (2010) 3 Mad LJ (Cri) 272].

It is essential that the need to proceed against the person other than the accused appearing to be guilty of offence arises only an evidence recorded in the course of any inquiry or trial, and in the instant case no such material come during investigation and the I.O. did not submit charge-sheet, against him, the petitioner had not been summoned under section 319 of Code of Criminal Procedure, 1973. In the circumstance order of nonbailable warrant of arrest was held liable to be quashed [Loknath Singh v State of Bihar, 2003 Cr LJ 1388 (Jhar) : 2003 (1) DMC 251 : 2003 AIR Jhar HCR 316].

Where in a prosecution of Director of a company for offence under section 454(5), Indian Companies Act, the Director was evading appearance before the Court, or had absconded or was concealing himself so that warrant could not be executed the Court was held justified in directing publication of proclamation under section 82 requiring Director to appear before the Court [Official Liquidator, High Court, Allahabad v Vinay Bagla, 2004 Cr LJ 3529 (All) : 2004 All LJ 2036 : (2004) 56 SCL 56].

The petitioner was directed to appear before the Court below within 15 days from the date of the order. The petitioner was prevented by sufficient means and unavoidable circumstances as he was suffering urinary tract infection from the date much prior to the recording of the order. When the petitioner was declared fit, he immediately filed interlocutory application before the Court for consideration of extension of time. The petitioner, therefore, invoked and urged for sympathetic consideration on his applications for grant of at least two weeks’ time enabling for his surrender/appearance in the Court below. Having regard to the facts and circumstances of the case, taking the considered view on the medical ground upon perusal of medical prescriptions, the Hon’ble High Court held that the prayer of the petitioner reasonably required consideration [Illyas Shaikh v State of Jharkhand, 2011 Cr LJ 2761 (2763) (Jhar)]. [s 82.3] Contempt proceedings.— Until surrendered, the person against whom proclamation has been issued must be regarded as in contempt. He must appear and apply for discharge on sufficient grounds, otherwise the Court will not entertain any application on his behalf [Bisheshwar, 2 NWPH 441; Woomesh, 5 WR 71]. A proclamation issued under section 82 does not make it equivalent to notice to the public of its contents, or even to the inhabitants of the town or village where it is published [Easwaramurthi, AIR 1944 PC 54 : 1945 Mad 237]. The three requirements of the

Page 4 of 7 [s 82] Proclamation for person absconding.— section must all be fulfilled [Jawai, AIR 1942 L 214] and care should be taken to preserve the proclamation [Jawai, supra]. Sections 82 and 83 do not apply to contempt proceedings [Paterson VG v OV Forbes, AIR 1963 SC 692 : 1963 (1) Cr LJ 633]. [s 82.4] Court has reason to believe.— (See section 26 of Indian Penal Code, 1860 as to meaning of “reason to believe”). The words “reason to believe” contemplate subjective satisfaction on basis of materials before the Magistrate acting under section 82 [Abdul Cader, infra; Rohit Kumar v State of NCT Delhi, 2008 Cr LJ 3561 (3565) (Del); Md. Nazrul Islam v State of Assam, 2008 Cr LJ 3374 (3378) (Gau) : 2008 (4) Gau LR 704]. Proclamation can issue only when the Court is clearly satisfied by examining the serving officer or in any other manner that a warrant has already been issued and that the accused is absconding or concealing [Bishnudayal, 22 P 504; Vellayappa, AIR 1942 M 289; Bishonath, 3 WR 63; Shewdayal, 6 WR 73; Qumarain, 23 Cr LJ 454; Jadho, 23 Cr LJ 739] and warrant cannot be executed for that reason, whatever be the intention [Shewdayal, supra]. There should be a judicial finding as to abscondence or concealment on sufficient materials [Ramkishore, 19 WR 12]. The mere fact that accused could not be found is not enough [Shewdayal, supra; Ramkishore, supra]. Where material on record shows that the accused having knowledge of the Court proceedings avoids process of the Court he can be declared as proclaimed offender under section 82, Code of Criminal Procedure, 1973 [Nachi Exports v Thiruvengadam, 2008 Cr LJ (NOC) 278 (Mad) : 2008 (1) Mad LJ (Cri) 300].

Accused will be declared absconder when Court is satisfied that the accused had left his permanent residence or he is avoiding service or there is no chance of arrest in near future. Where accused was declared absconder without recording statement of process server and consigning file to record without recording the evidence, this was held to be illegal [Abdul Rehman v State, 2007 Cr LJ 3113 (Raj) : 2007 (2) Raj Cri 759]. [s 82.5] Meaning of absconding.— A person cannot be said to abscond to avoid a warrant which was not actually issued [Srinivasa, 3 M 393; see Easwaramurthi, AIR 1944 PC 54], or when he had left for a distant place before the issue of warrant [Vellayappa, AIR 1942 M 289]. When an accused left for USA for studies and employment prior to filing of charge sheet, he cannot be regarded as absconding [Sir MSR Gundappa v State of Karnataka, 1977, Mad LJ (Cr) 159 (Kant) : 1977 Cr LJ (NOC) 187 : 1977 (1) Kant LJ 109]. If a person before a legal process is issued anticipates the issue of such process and quits the country, he can be said to have absconded. A person leaving India before passing of detention order and continuing to remain abroad with a view to avoid or delay execution of detention order is a person absconding [KTMS Abdul Cader v The UOI, AIR 1977 M 386 FB : 1977 Cr LJ 1708 : 1977 Mad LJ (Cri) 147 : 90 Mad LW 501]. “Abscond” does not necessarily imply leaving a place. Its ordinary sense is to “hide oneself” [Srinivasa, 4M 393; Forbes, AIR 1943 Ori 325]. A person who moves a higher Court against an order issuing warrant and for being given bail after arrest, cannot be said to be absconding [Qumardin, 23 Cr LJ 454].

Where the petitioners were already residing in Canada before the registration of the FIR in question, there was no occasion for them to conceal themselves or abscond [Mehar Singh v State of Punjab, 2010 Cr LJ 409 (411) (P&H)].

The primary meaning of the word abscond is to hide and when a person is hiding from the place of his residence he is said to be absconder. A person may hide even in his place of residence or away from it and in either case he would be absconding when he hides himself. Strict compliance of sub-section (3) of section 82 of the Code is very much required for declaring any accused an absconder [Mahendra Kumar Ruiya v State of Jharkhand, 2013 (3) JLJR 407]. [s 82.6] Proclamation to be issued only after warrant.— Proclamation can be issued only after the warrant is issued by the Court. Where instead of issuing warrant, the Court issued summons, the procedure prescribed under section 482 of Code of Criminal Procedure, 1973 is not valid by way of issuing proclamation only after issuing the summons [Nirujogi Appala Naidu v Nirujogi Raja, 2006 Cr LJ 3230 (3231) (AP) : 2006 (4) Cur CrR 42]. [s 82.7] Finding.— Actual finding that person concerned has absconded is not necessary on the part of the Magistrate [Eswarmurthi, AIR 1944 PC 54, 57].

Page 5 of 7 [s 82] Proclamation for person absconding.— [s 82.8] Place and time.— The proclamation issued under section 82 of Code of Criminal Procedure, 1973 requires appearance of the person against, whom warrant has been issued at a specified time at a specified place. The date fixed should not be less than 30 days from the date of publication of the proclamation. If that be so, simultaneous attachment of property, cannot be effected. The provision is mandatory. Where the period given is less than 30 days, proclamation is liable to be quashed [Rohit Kumar v State of NCT Delhi, 2008 Cr LJ 3561 (3565) : 2007 (4) CCR 1; Md. Nazrul Islam v State of Assam, 2008 Cr LJ 3374 (3378) (Gau) : 2008 (4) Gau LR 704]. The requirement as to time and place is imperative and mandatory [Subbarayar, 19 M 3, 5; Pal Singh, AIR 1955 Pu 18; Birad, AIR 1958 Raj 167]. Failure to state time and place makes the proclamation a nullity [Mian Jan, 27 A 572, 573; Abdulla, 22 A 216]. Thirty days are to be computed from date of publication [Ramkishore, 19 WR 12; Subbarayar, supra]. Direction to appear “within thirty days” is illegal [Sambhu, 9 KWN ccxvi; Karnubha, AIR 1954 Sau 145; Pal Singh, supra], and if the period fixed is less than the time prescribed, the subsequent proceedings will be invalid [Subbarayar, supra, Multan, 21 Cr LJ 210; Jagdev, AIR 1948 L 151; Pal Singh, supra; Savitaben Govindbhai Patel v State of Gujarat, 2004 Cr LJ 365 : 2004 (4) Crimes 398 : 2004 (4) Rec Cr R 830 (Guj); see however Hansraj v Emperor, AIR 1934 L 987 where it has been regarded as an irregularity unless prejudice is caused to the accused]. The Andhra Pradesh High Court relying on Vimalben Ajitbhai Patel v Vatslaben Ashokbhai Patel, (2008) 4 SCC 649 : AIR 2008 SC 2675 has also held that The 30 days’ time in section 82 is not mandatory but is only directory [K. Rama Krishna v State of AP, 2011 (1) Crimes 550; Vimalben Ajitbhai Patel v Vatslaben Ashokbhai Patel, (2008) 4 SCC 649: AIR 2008 SC 2675 relied on]].

The complaint has been filed in the Court of Metropolitan Magistrate and the same has been sent to the Police for investigation and for submitting the report and the outcome of the investigation, it can be legally said that a complaint before the Trial Court was very well under the domain of the Court and the Investigating Agency namely the Police is always under legal obligation to submit its report after the completion of the process of investigation. So the contention that if High Court is of the view that the notification is bad in law, the petitioners accused cannot be subjected to any other type of order and that too in the nature of direction to surrender or appear before the concerned Court is not acceptable [Savitaben Govindbhai Patel v State of Gujarat, 2004 Cr LJ 3651 : 2004 CrLR (SC) Mah (Guj) 815 : 2004 (4) Crimes 398 : 2004 (4) Rec Cr R 830 (Guj); see also K. Rama Krishna v State of AP, 2011 (1) Crimes 550]. [s 82.9] Filing of anticipatory bail application, if amounts to appearance.— Filing of an anticipatory bail application by the accused through the advocate cannot be said to be an appearance of the accused in a competent Court [Savitaben Govindabhai Patel v State of Gujarat, 2004 Cr LJ 3651 : 2004 CrLR (SC) Mah (Guj) 815 : 2004 (4) Crimes 398 : 2004 (4) Rec CrR 830 (Guj)].

A person against whom a warrant had been issued and is absconding or concealing himself in order to avoid execution of warrant and declared as a proclaimed offender in terms of section 82 of the Code is not entitled the relief of anticipatory bail [Lavesh v State (NCT of Delhi), (2012) 8 SCC 730 : 2012 (8) Scale 303; State of Madhya Pradesh v Pradeep Sharma, AIR 2014 SC 626 : (2014) 2 SCC 171 : 2013 (14) Scale 626; Mahendra Kumar Ruiya v State of Jharkhand, 2013 (3) JLJR 407]. [s 82.10] Preventive detention.— Section 82 is not available to an authority empowered to pass on order of preventive detention [Indradeo Mahato v State of WB, AIR 1973 SC 1062 : 1973 Cr LJ 862 : (1973) 4 SCC 4]. [s 82.11] Sub-section (2)—Publication.— The fact of publication with all formalities prescribed must be proved like any other fact and both the conditions in (i)(a) and must be complied with [Muddunmohan, 3 WR 34; Subbarayar, 19 M 3; Abdulla, 22 AIR 216; Mian Jan, 27 A 572; Jian, 13 Cr LJ 293]. Omission to comply with the requirements of sub-section (2) vitiates the proceedings [Jawai, AIR 1942 L 214; Karnubha, AIR 1954 Sau 145]. Prosecution is to prove that proclamation was issued as prescribed by section 82 [Pandya, 7 M 436].

The Court may also direct to publish the proclamation in a daily newspaper in place where the absconder ordinarily resides [sub-section 2 (ii)].

Page 6 of 7 [s 82] Proclamation for person absconding.— If proclamation under section 82 of the Code of Criminal Procedure, 1973 is not affixed at some conspicuous part of the house or homestead in which such person ordinarily resides or to some conspicuous place of such town or village, then no order under section 83 can be passed [Ajay Singh Sijwali v Shyam Singh Bohra, 2013 Cr LJ 4745 (UTR)].

An army man who had neither avoided process nor absconded could not be declared proclaimed offender [Nirmala Devi v State of HP, 2003 Cr LJ 3499 : 2003 (4) All CrLR 429 : 2003 (1) Cur LJ (CCR) 1450 (HP)]. [s 82.12] Sub-section (3)—Statement in writing.— The “Statement in writing” should state clearly that it was duly published and also the date of publication [Multan 21 Cr LJ 210; Raghuni, 37 Cr LJ 318; Jagdev, 48 Cr LJ 624]. If there is no statement, defects in the proclamation or in the manner of publication can be shown [Karnubha, AIR 1954 Sau 145]. It has also been held that no presumption arises unless requirements of the section have been complied with [Birad, AIR 1958 Raj 167]. The words of sub-section (3) relating to “conclusive evidence” do not override the requirements of the Evidence Act or make the proclamation legal evidence that the warrant had been issued. Sections 62, 64 and 65 of the Act define the only evidence which the law permits in order to prove a warrant of arrest [Easwarathmurthi, 71 IA 83 : 48 Cal WN 477, 480].

Section 82(3) of the Code speaks about the subjective satisfaction of the Court and such subjective satisfaction of the Court must be reduced into writing to the effect that the proclamation was duly published on a specific date in the manner specified in clause (i) of sub-section (2) and that shall be the conclusive evidence that requirement of this section had been complied with and the proclamation was duly published. Such statement recorded in writing shall be the consequence for the next step for issuance of process under section 83 of Code of Criminal Procedure, 1973, therefore, before proceeding with provision contained under section 83 of Code of Criminal Procedure, 1973 the Court issuing a proclamation under section 82 must record a reason in writing that even after issuance of proclamation the accused did not comply with the direction and remained absconding or concealing himself or evading his appearance [Mahendra Kumar Ruiya v State of Jharkhand, 2013 (3) JLJR 407]. [s 82.13] Sub-section (4)—Proclaimed Offender.— Sub-section (4) inserted by the CrPC (Amendment) Act, 2005 (25 of 2005) provides that where a proclamation published under sub-section (1) is in respect of a person accused of an offence punishable under sections 302, 304, 364, 367, 382, 392, 393, 394, 395, 396, 397, 398, 399, 400, 402, 436, 449, 459 or 460 of the Indian Penal Code, and such person fails to appear at the specified place and time required by the proclamation, the Court may pronounce him a proclaimed offender after making such inquiry as it thinks fit, and make a declaration to that effect.

Sub-section (4) of section 82 of Code of Criminal Procedure, 1973 appears to be applicable in respect of a person accused of an offence punishable under specific sections of the Indian Penal Code and the word proclaimed offender appears in section 82(4) of Code of Criminal Procedure, 1973. Some discretion has been given to Court to hold inquiry before pronouncing any accused as proclaimed offender under sub-section (4) of section 82 of the Code [see Mahendra Kumar Ruiya v State of Jharkhand, 2013 (3) JLJR 407]. [s 82.14] Sub-section (5)—Application of provisions under sub-sections (2) and (3).— Sub-section (5) of section 82 of the Code of Criminal Procedure, 1973 indicates that sub-section (2) and subsection (3) shall apply to declaration made by the Court under sub-section (4) as they applied to the proclamation published under sub-section (1) [Mahendra Kumar Ruiya v State of Jharkhand, 2013 (3) JLJR 407 (Jhar)].

1

Inserted by the Code of Criminal Procedure (Amendment) Act, 2005 (25 of 2005), section 12 (w.e.f. 23 June 2006 vide Notification No. SO 923(E), dated 21 June 2006).

Page 7 of 7 [s 82] Proclamation for person absconding.—

End of Document

[s 83] Attachment of property of person absconding.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER VI PROCESSES TO COMPEL APPEARANCE > C.—Proclamation and attachment

The Code of Criminal Procedure, 1973 CHAPTER VI PROCESSES TO COMPEL APPEARANCE C.—Proclamation and attachment [s 83] Attachment of property of person absconding.— (1) The Court issuing a proclamation under Section 82 may, for reasons to be recorded in writing, at any time after the issue of the proclamation, order the attachment of any property, movable or immovable or both, belonging to the proclaimed person : Provided that where at the time of the issue of the proclamation the Court is satisfied, by affidavit or otherwise, that the person in relation to whom the proclamation is to be issued— (a) is about to dispose of the whole or any part of his property, or (b) is about to remove the whole or any part of his property from the local jurisdiction of the Court, it may order the attachment simultaneously with the issue of the proclamation. (2) Such order shall authorise the attachment of any property belonging to such person within the district in which it is made; and it shall authorise the attachment of any property belonging to such person without such district when endorsed by the District Magistrate within whose district such property is situate. (3) If the property ordered to be attached is a debt or other moveable property, the attachment under this section shall be made— (a) by seizure; or (b) by the appointment of a receiver; or (c) by an order in writing prohibiting the delivery of such property to the proclaimed person or to any one on his behalf; or (d) by all or any two of such methods, as the Court thinks fit. (4) If the property ordered to be attached is immovable, the attachment under this section shall, in the case of land paying revenue to the State Government, be made through the Collector of the district in which the land is situate, and in all other cases— (e) by taking possession; or (f)

by the appointment of a receiver; or

Page 2 of 3 [s 83] Attachment of property of person absconding.— (g) by an order in writing prohibiting the payment of rent or delivery of property to the proclaimed person or to any one on his behalf; or (h) by all or any two of such methods, as the Court thinks fit. (5) If the property ordered to be attached consists of live-stock or is of a perishable nature, the Court may, if it thinks it expedient, order immediate sale thereof, and in such case the proceeds of the sale shall abide the order of the Court. (6) The powers, duties and liabilities of a receiver appointed under this section shall be the same as those of a receiver appointed under the Code of Civil Procedure, 1908 (5 of 1908). [s 83.1] Changes.— Section 83 corresponds to sub-sections (1) to (6) of old section 88 with the following changes :

(1) In sub-section (1) certain words and the proviso have been added. (2) In sub-section (2) the words “or Chief Presidency Magistrate” after “District Magistrate” have been omitted. (3) In sub-section (4) old clause (e), (f), (g) and (h) have been renumbered clauses (a), (b), (c) and (d).

As sudden attachment of property simultaneously with the issue of proclamation which might be allowed under the old provision caused hardship in some cases, provision has been made for order of attachment after issue of proclamation and for reasons to be recorded in writing. At the same time provision has been made for simultaneous attachment with issue of proclamation in appropriate cases in certain special circumstances mentioned in clauses (a) and (b) of proviso to sub-section (1). [s 83.2] Scope and application of section 83.— The object is to compel the appearance of the person against whom proclamation has been issued by the penalty of attachment and sale of his property. Only the Court issuing a valid proclamation (and no other Court) may, for reasons to be recorded in writing, at any time after the issue of proclamation attach his property. There is no penalty for disobedience to a defective proclamation [Pal Singh, AIR 1955 Pu 18]. Before issuing a warrant of attachment a proclamation under section 82 has got to be issued directing the person concerned to appear [Dipnarayan Singh v State of Bihar, 1981 Cr LJ 1672 (Pat) : 1981 BLJR 461 : 1981 BBCJ 293]. The object of attaching property of an absconder is not to punish him but to compel his appearance [Dayanand, AIR 1976 P&H 190]. Once the absconding accused surrenders before the Court and the Standing warrants cancelled, he is no longer an absconder. The purpose of attaching the property comes to an end. It is to be released subject to the provisions of the Code [Vimalben Ajitbhai Patel v Vatslaben Ashokbhai Patel, (2008) 4 SCC 649: AIR 2008 SC 2675].

The attachment can issue simultaneously with the proclamation only under circumstances mentioned in the proviso to sub-section (1).

When accused did not get anticipatory bail, still proclamation of absconder and attachment of his property under sections 82 and 83 can be issued against him [Ruchi Goyal v State, 2003 Cr LJ (NOC) 256 : (2003) 104 DLT 347 : (2003) 69 DRJ 479]. In the instant case, the property belonging to the father of accused was attached. The father had no concern with his son and virtually he had left all the connections with his son. The petitioner was neither accused nor wanted in any other case. Property belonging to father of the accused was directed to be released after proper verification and only property belonging to accused was directed to be attached [Puneshwar Prasad Singh v State of Jharkhand, 2004 Cr LJ 4493 (4494) : 2004 (3) East CrC 93 : 2004 (2) JCJR 96]. [s 83.3] Civil attachment.— Difference between attachment under section 83 and attachment by civil Court [Alagammal, AIR 1930 M 1017]. The section provides a complete Code for the attachment of property of absconder and claims by other persons [Suraj, AIR 1934 P 18; Panchu Gopal, AIR 1955 C 524]. When after an attachment a person is arrested and

Page 3 of 3 [s 83] Attachment of property of person absconding.— fined there is attachment under section 421 for realisation of the fine, the previous attachment under section 83 ceases [Suraj, supra]. A previous civil attachment prevails over subsequent attachment by criminal Court [Narayan, 31 Bomb LR 345; Subramanian, 13 Cr LJ 568]. But if after attachment under section 83 there is a civil attachment, the title of the buyer at the magisterial sale (though held subsequently) is superior [Golam, 9 C 861]. Attachment in another district cannot be made without endorsement of the Magistrate of that district [Ganu, AIR 1930 P 347]. Frames of the door cannot be removed by way of attachment [Ramji, AIR 1930 P 387]. [s 83.4] Revision.— Revision lies where the complaint relates to a dispute of a civil nature [Ratish Rai v Mohesh Singh, 1985 Cr LJ 94 (Gauhati)]. [s 83.5] Attendable Property.— The undivided interest of a coparcener of a joint family is attachable [Secy of S, 39 M 831 FB; see however, Bisi, 18 Cr LJ 1037], but not property subject to maintenance charge [Ahalyabai, AIR 1938 B 321]. Ancestral lands in the Punjab [Shah Md, AIR 1925 L 629]; unascertained share of partner in the hands of a Receiver [Abbott, 5 BLR 382], and share of judgment-debtor in partnership with another who alone was in possession of property at the time of attachment [Thama, 5 BLR 386]; see the cases cited. [s 83.6] Proclamation.— When there is an order under section 83 the presumption is that proclamation has been issued [Shibcharan, 1938 All 286 : AIR 1938 A 220]. Civil suit for possession of property attached under section 83 does not lie. The remedy is under section 85(3) [Dayanand, AIR 1974 P&H 198]. End of Document

[s 84] Claims and objections to attachment.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER VI PROCESSES TO COMPEL APPEARANCE > C.—Proclamation and attachment

The Code of Criminal Procedure, 1973 CHAPTER VI PROCESSES TO COMPEL APPEARANCE C.—Proclamation and attachment [s 84] Claims and objections to attachment.— (1) If any claim is preferred to, or objection made to the attachment of, any property attached under Section 83, within six months from the date of such attachment, by any person other than the proclaimed person, on the ground that the claimant or objector has an interest in such property, and that such interest is not liable to attachment under Section 83, the claim or objection shall be inquired into, and may be allowed or disallowed in whole or in part : Provided that any claim preferred or objection made within the period allowed by this sub-section may, in the event of the death of the claimant or objector, be continued by his legal representative. (2) Claims or objections under sub-section (1) may be preferred or made in the Court by which the order of attachment is issued, or, if the claim or objection is in respect of property attached under an order endorsed under sub-section (2) of Section 83, in the Court of the Chief Judicial Magistrate of the district in which the attachment is made. (3) Every such claim or objection shall be inquired into by the Court in which it is preferred or made : Provided that, if it is preferred or made in the Court of a Chief Judicial Magistrate, he may make it over for disposal to any Magistrate subordinate to him. (4) Any person whose claim or objection has been disallowed in whole or in part by an order under subsection (1) may, within a period of one year from the date of such order, institute a suit to establish the right which he claims in respect of the property in dispute; but subject to the result of such suit, if any, the order shall be conclusive. [s 84.1] Changes.— Sub-sections (1), (2), (3) and (4) of section 84 correspond to sub-sections (6A), (6B), (6C) and (6D) of old section 88 with some verbal alterations. The changes effected are that though the warrant of attachment issued under section 83(2) is to be endorsed by the District Magistrate (Executive Magistrate) within whose district the property is situated, claims or objections against such attachment will be disposed of by the Chief Judicial Magistrate of the district. [s 84.2] Scope and application of section 84.— (Cf O XXI, rule 58 of Code of Civil Procedure, 1908 for investigation of claims by civil Courts). Claim laid by any person is to be investigated by the Court issuing the order of attachment, or by the Chief Judicial Magistrate of the district in which attachment is made when the property is attached under an order endorsed by the District

Page 2 of 3 [s 84] Claims and objections to attachment.— Magistrate under sub-section (2) of section 83. The claimant is to establish the right claimed. In investigating claim, it is illegal to act upon report of police officer [Bansidhar, AIR 1933 P 698] or to ask the claimant to pick out his things or to file the claim for refusal to do so. The claim must be legally decided [Saraswati, AIR 1955 A 127]. The inquiry in a claim is not limited to the question of possession only as the word “interest” is of wider import [Panchu Gopal, AIR 1955 C 524 : 60 Cal WN 47]. On objection being allowed the State is liable to return the property or to pay its value [Sahdeo, 1956 ALJ 932]. If he is unsuccessful he may within one year from the date of order bring a civil suit (Cf O XXI, rule 58 of Code of Civil Procedure, 1908). But the claim is an alternative remedy and the third person may without recourse to it bring an independent suit to enforce his claim against the Government [Ahalyabai, AIR 1945 B 321 : ILR 1938 Bom 454; Ezekiel, 1939, (2) Cal 52 : AIR 1939 C 746; Parbati, AIR 1945 A 104]. Real owner can sue the Government to recover the attached property with mesne profits and damages [Secy of section 28 C 540]. If the property has already been converted into money by sale, the claim should be in respect of the money [Gangayya, AIR 1942 M 93; Jamshed, AIR 1957 N 71]. When the property is under attachment, no suit for possession lies. The relief to be asked for is the setting aside of the attachment and the suit comes under section 7(viii), Court Fees Act [Parbati, supra]. The suit under sub-section (4) is to obtain a declaratory decree without consequential relief in Article 17(1), Court Fees Act [Koda Lakshmi, AIR 1954 M 290]. Claim for damages apart from the right to the property is governed by Article 29,2 Limitation Act, 1908 [Jamshed, supra].

When a claim made within time is dismissed for default, the Magistrate has jurisdiction to revive it if sufficient cause is shown for non-appearance [Panchu Gopal, supra].

Wife and minor children of absconder entitled to maintenance from him, cannot apply for release of property of absconder attached as they have no interest in the property in regard to their claim of maintenance [ND Gaddireddi v The State, 1979 Cr LJ 1107 (Del) : ILR (1979) 2 Del 229].

Section 84 of the Code of Criminal Procedure, 1973 makes it clear that objections to the effect that the property does not belong to the accused, can also be raised within six months after attachment but it does not bar that objection cannot be raised prior to the attachment. If such objection is raised by the third party, then Court must decide the objection and if Court comes to the conclusion that property does not belong to the accused, Court can pass order either declining to attach the property or withdrawing the attachment, as the case may be [Deveshwari Devi v State of Uttarakhand, 2014 Cr LJ 534 (UTR)].

The interim orders of attachment of property were made absolute by the judicial commissioner. An appeal was pending against the order of conviction of accused in one criminal case. In another criminal case, the trial was already pending in which the provisions of sections 12 and 13 of the Criminal Law (Amendment) Ordinance (38 of 1944) can still be resorted to. The accused can invoke said provisions for court to evaluate property procured by scheduled offence. The section 13 of the Ordinance empowers court to deal with attached properties even after termination of criminal proceedings. The Apex Court held that since one more trial is still pending therefore the order of Judicial Commissioner making attachment orders absolute were proper. [Ravi Sinha v State of Jharkhand, AIR 2017 SC 5443 : 2017 (12) Scale 398]. [s 84.3] Attachment of property of absconder.— Remedy of preferring claim under section 84 of Code of Criminal Procedure, 1973 is permissive and not exclusive. [Deputy Supdt. of Police, CBI Ernakulam v Nabeesa, 1997 Cr LJ 843 (Ker) : 1996 (2) Ker LT 713 : 1997 (2) Cur CrLR 345]. [s 84.4] Claims and objections to attachment—Limitation.— Section 5, Limitation Act is applicable to petition filed under section 84(1) of Code of Criminal Procedure, 1973 [Pharma Kuries Pvt Ltd v Soju, 2007 (3) Crimes 41 (Ker)]. [s 84.5] Revision.— An order under section 84 on the claim made [Santa, AIR 1924 L 617; Hameed, AIR 1957 A 121; Malli, 18 Cr LJ 979; see Jawai, AIR 1942 L 214] or filing a claim without deciding it [Saraswati, AIR 1955 A 127] is revisable.

Page 3 of 3 [s 84] Claims and objections to attachment.—

2

Now see Article 80 of Limitation Act, 1963.

End of Document

[s 85] Release, sale and restoration of attached property.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER VI PROCESSES TO COMPEL APPEARANCE > C.—Proclamation and attachment

The Code of Criminal Procedure, 1973 CHAPTER VI PROCESSES TO COMPEL APPEARANCE C.—Proclamation and attachment [s 85] Release, sale and restoration of attached property.— (1) If the proclaimed person appears within the time specified in the proclamation, the Court shall make an order releasing the property from the attachment. (2) If the proclaimed person does not appear within the time specified in the proclamation, the property under the attachment shall be at the disposal of the State Government; but it shall not be sold until the expiration of six months from the date of the attachment and until any claim preferred or objection made under Section 84 has been disposed of under that section, unless it is subject to speedy and natural decay, or the Court considers that the sale would be for the benefit of the owner; in either of which cases the Court may cause it to be sold whenever it thinks fit. (3) If, within two years from the date of the attachment, any person whose property is or has been at the disposal of the State Government, under sub-section (2), appears voluntarily or is apprehended and brought before the Court by whose order the property was attached, or the Court to which such Court is subordinate, and proves to the satisfaction of such Court that he did not abscond or conceal himself for the purpose of avoiding execution of the warrant, and that he had not such notice of the proclamation as to enable him to attend within the time specified therein such property, or, if the same has been sold, the net proceeds of the sale, or, if part only thereof has been sold, the net proceeds of the sale and the residue of the property, shall, after satisfying therefrom all costs incurred in consequence of the attachment, be delivered to him. [s 85.1] Changes.— Sub-sections (1) and (2) correspond to sub-sections (6E) and (7) of old section 88 and sub-section (3) corresponds to old section 89 without any change. [s 85.2] Scope and application of section 85, Sub-section (2) : Right of Government—Sale.— “Disposal of Government” (also used in section 458) means absolute control of Government to dispose of or deal with it in any manner it thinks appropriate [Golam, 9 C 861, 863]. The property has that effect only from the date of attachment [Narayan, AIR 1929 B 200]. The position of Government is at least analogous to that of a receiver in possession and management [Alagammal, AIR 1930 M 1017]. Dispute of ownership of Bus cannot be investigated in a criminal Court [Pankaj Kumar Das, 1990 Pat LJR 275].

If the accused has mortgaged or otherwise transferred any interest before attachment, the equity of redemption can only be sold [Bindeshwar, AIR 1937 P 642]. If there is a lease, the sale is subject to it [Illamdin, 8 Cr LJ 260]. Doctrine of lis pendens applies to sales under section 85 [Narayan, AIR 1929 B 200].

Page 2 of 2 [s 85] Release, sale and restoration of attached property.—

Sale cannot be set aside under section 401 [Gaman, 8 PR 1911 Cr]. If the proclamation is not in accordance with law, the sale is a nullity and a suit for recovery lies against the purchaser [Mian Jan, 27 A 572; see Kandappa, 20 M 88]—Contra: Accused cannot sue in a civil Court but he may invoke section 401 [Dewa, 10 L 338]; it has however been held in Allahabad that no revision lies [Abdulla, 22 A 216].

When proclamation and attachment were illegal the property ought to be restored to the accused [Jagdeb, 48 Cr LJ 624]. Property declared to be at disposal of Government can be restored only by Government and not by Court [Meersarwarjan, 18 WR 33]. When property is confiscated by Government and re-granted to another, it puts an end to the accused’s title and he cannot bring a suit for its recovery [Dattaji, AIR 1923 B 93]. [s 85.3] Sub-section (3)—Restoration of attached property.— The sub-section prescribes a remedy for attachment or sale where there is a legal and good publication, but offers no facility for contesting the legality of the proclamation [Abdullah, 22 A 216]. The irregularity or otherwise of the attachment or proclamation cannot be gone into. The Court can grant release of property under section 85(3) only if two things are proved : that the person (1) did not abscond or conceal and (2) had no notice of the proclamation [Hansraj, AIR 1934 L 987; Jawai, AIR 1934 L 214; Buta, AIR 1926 L 662; Pal Singh, AIR 1955 Pu 18; Dayanand, AIR 1976 P&H 190]. The onus is on the accused [Forbes, AIR 1943 O 325; Jagdeb, 48 Cr LJ 624; N.D. Gaddireddi v The State, 1979 Cr LJ 1107 (Del) : ILR (1979) 2 Del 229]. Apparently subsequent conviction under section 174 Indian Penal Code, 1860 for absconding is a bar to such proof and the property can only be restored by Government [Govt., 9 BLR 342].

Both the appearance and proof must be offered within two years [Nilkanth, 14 Cr LJ 237; Buta, 27 Cr LJ 1025; Dayanand, supra]. The application may be by the absconder or any one on his behalf [Nilkanth, supra; Gaman, 12 Cr LJ 142]. If the property has already been sold, only the sale-proceeds are available [Fazaldad, 24 Cr LJ 575].

A proclaimed person whose property has been attached has to file an application for restoration under section 85(3) and in case he is aggrieved by the order of the Court he can go up in appeal against that order under section 86. The civil Court will have no jurisdiction to try any suit in connection with the matter as its jurisdiction has been impliedly barred by the provisions of Code of Criminal Procedure, 1973 [Dayanand, AIR 1974 P&H 108 (Dewa Singh, AIR 1928 L 562) relied on].

No provision in Code of Criminal Procedure, 1973 bars the jurisdiction of a civil Court to adjudicate upon the claim of an heir of a deceased absconder for restoration of the property if it is still held by the Govt. under subsection (2) without it being confiscated, unless it has in the meantime been sold to some third person [Dayanand, AIR 1976 P&H 190; Sadhu, 1908 PR 108; Niamat, AIR 1915 L 12 relied on and cases discussed].

Although no relief can be granted under section 85(3) unless the proclamation or attachment is valid, in the case of an irregular proclamation or attachment the remedy is by way of revision under section 401 [Pal Singh, AIR 1955 Pu 18]. It has also been held that the High Court can interfere under its inherent powers [Buta, AIR 1926 L 662; see Jawai, AIR 1942 L 214].

In this case, the vehicle used in commission of offence of murder was released in favour of the rightful owner in view of the fact that the said vehicle was likely to be severely damaged if kept at police station [Ramayani Devi v State of Bihar, (2006) 2 Pat LJR 357 (Pat)]. [s 85.4] Appeal.— Order under sub-section (3) is appealable (section 86). Revision lies in proper cases [Subbarayar, 19 M 3; Abdullah, 22 A 216; Jawai, supra]. End of Document

[s 86] Appeal from order rejecting application for restoration of attached property.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER VI PROCESSES TO COMPEL APPEARANCE > C.—Proclamation and attachment

The Code of Criminal Procedure, 1973 CHAPTER VI PROCESSES TO COMPEL APPEARANCE C.—Proclamation and attachment [s 86] Appeal from order rejecting application for restoration of attached property.— Any person referred to in sub-section (3) of Section 85, who is aggrieved by any refusal to deliver property or the proceeds of the sale thereof may appeal to the Court to which appeals ordinarily lie from the sentences of the first-mentioned Court. [s 86.1] Changes.— Section 86 corresponds to old section 405 redrafted without any change in substance. [s 86.2] Scope and application of section 86.— Section 85(3) deals with restoration of attached property. Ordinarily means in the majority of cases, though in a particular case the appeal may lie to another Court [Anant, 11 B 438; Maduray, 22 C 487].

End of Document

[s 87] Issue of warrant in lieu of, or in addition to, summons.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER VI PROCESSES TO COMPEL APPEARANCE > D.—Other Rules Regarding Processes

The Code of Criminal Procedure, 1973 CHAPTER VI PROCESSES TO COMPEL APPEARANCE D.—Other Rules Regarding Processes [s 87] Issue of warrant in lieu of, or in addition to, summons.— A Court may, in any case in which it is empowered by this Code to issue a summons for the appearance of any person, issue, after recording its reasons in writing, a warrant for his arrest— (a) if, either before the issue of such summons, or after the issue of the same but before the time fixed for his appearance, the Court sees reason to believe that he has absconded or will not obey the summons; or (b) if at such time he fails to appear and the summons is proved to have been duly served in time to admit of his appearing in accordance therewith and no reasonable excuse is offered for such failure. [s 87.1] Changes.— Section 87 corresponds to old section 90. [s 87.2] Scope and application of section 87.— Warrant can under this section be issued only in cases in which the Court is empowered to issue summons, but not otherwise. Thus, after discharge of a person under section 245 no warrant for his arrest can be issued until the discharge order is set aside and the case taken to file [Kunwar, 15 PR 1893]. “Any person” includes a witness. But the section requires that a warrant should not issue unless the Court is satisfied as to the facts stated in clauses (a) or (b) and reasons are recorded in writing. (See also section 204 which confers discretion on the Magistrate to issue summons or warrant for causing the appearance of the accused). The object appears to be to draw attention to the fact that a warrant ought not to be issued where a summons would suffice, and that care should be exercised by the Court to satisfy itself upon the materials before it that it was really necessary to issue a warrant [per Sanderson CJ, in Sahebulla, 27 Cal WN 857, 866 FB]. Where from the order it does not appear that either of the conditions in (a) and (b), has been fulfilled, it is illegal [Indra, AIR 1955 Pu 81].

It is mandatory for the Magistrate to issue at first instance process of summons for the attendance of the petitioner. In case he fails to appear despite due service of summons upon him, the Magistrate should resort to coercive process of warrants of arrest and that too after recording reasons [G. Sagar Suri v State, 2004 Cr LJ 212 (213) (Del) : (2003) 106 DLT 439 : (2003) 71 DRJ 49].

Non-bailable warrant and proclamation of attachment of property was issued on the ground that the accused was absconding. The petitioner was not aware of the pendency of the proceedings until the publication for his appearance. The name of accused in the charge-sheet was not correct and full address of accused was not

Page 2 of 2 [s 87] Issue of warrant in lieu of, or in addition to, summons.— mentioned in the charge-sheet. I.O. had not taken efforts in tracing accused. It was held that issuance of nonbailable warrant attachment order was not justified [R. Babu Shankar v State of Karnataka, 2004 Cr LJ 3214 (3216) (Kant) : 2004 (4) Kant LJ 51 : 2004 AIR Kant HCR 2198]. [s 87.3] Bailable case.— The terms “bailable warrant” and “non-bailable warrant” are not used in the Code. There are bailable and nonbailable offences. There is nothing in law saying that a warrant under section 87 in respect of a bailable offence must contain endorsement under section 71 for taking security. The matter is entirely discretionary [Lachmi Narayan, AIR 1939 A 156 : 40 Cr LJ 283]. [s 87.4] Non-bailable warrant.— Court normally issues summons and does not issue non-bailable warrant simultaneously unless it has reason to believe that accused has abconded and/or will not obey the summons. So long as there is no cause for such an apprehension, Court below is not justified in straightaway issuing non-bailable warrant against the accused [Brij Nandan Nagaiah v State of UP, 2007 Cr LJ 378 (All)]. [s 87.5] Failure to issue warrant not amounting to illegality by itself.— The failure of the Magistrate to issue warrant cannot be captioned as perverse or an illegality so as to attract section 482 of Code of Criminal Procedure, 1973 or Article 227 of the Constitution [Dattatraya Dagduji Borkute v Mohan Lal Chandmal Phapal, 1996 Cr LJ 987, 989 (Bom) : 1996 (2) Cur Cr R 340]. [s 87.6] Reason.— The words “after recording its reasons” clearly indicate that reasons are to be recorded before issuing warrant. But, however, that may be, two views exist. One is that non-compliance with it makes a warrant invalid and defects are not curable by section 465 [Karuthan, 38 M 1088; Sukheswar, 38 C 789 (no reason recorded at all); Yasin, 10 Cr LJ 306; Bela Singh, 19 Cr LJ 443; Indra, AIR 1955 Pu 81]. Warrant of arrest can be issued only on recording reasons [Subol Mandal v The State, 1974 Cr LJ 176 (Cal)]. The other is that the words requiring the recording of reason are not imperative but directory [Sahebulla, 27 Cal WN 857 : 51 C 1 FB superseding Sukheswar, supra. In this case there were materials justifying the issue of warrant and reasons were recorded on the warrant itself though not in the order sheet]. In Allahabad too it has been held to be directory [Mahar, 18 ALJ 1149 : 22 Cr LJ 111]. Though held to be directory, the Calcutta FB said: We think it is desirable to state distinctly that Magistrates should record their reasons specifically, in writing before issuing a warrant and should not be satisfied with signing their names to warrants in the form given in the Schedule [Sahebulla, 27 Cal WN 857, 869]. It was also held in Sukheswar, ante, that the adoption of stereotyped printed form (Schedule 2, Form no. 7) is not a sufficient compliance with the operative language of the section.

Although in charges under section 323 or section 426 Indian Penal Code, 1860 or in like offences summons should ordinarily issue, Court may issue warrant if circumstances justify. There is nothing in section 87 to say that such a warrant must contain a direction under section 71 [Lachmi, 40 Cr LJ 283]. The issue of warrant under section 87(b) depends on due service of summons [Chander, AIR 1941 P 206]. [s 87.7] Discharge in main case.— Where in the (substantive) Criminal case itself the person has been discharged, he cannot be arrested as “absconded” [Ram Pyare Lal v Om Prakash., 1977 Cr LJ 1984 (Del) : ILR (1977) 1 Del 549 : (1977) 9 Lawyer 125]. End of Document

[s 88] Power to take bond for appearance.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER VI PROCESSES TO COMPEL APPEARANCE > D.—Other Rules Regarding Processes

The Code of Criminal Procedure, 1973 CHAPTER VI PROCESSES TO COMPEL APPEARANCE D.—Other Rules Regarding Processes [s 88] Power to take bond for appearance.— When any person for whose appearance or arrest the officer presiding in any Court is empowered to issue a summons or warrant, is present in such Court, such officer may require such person to execute a bond, with or without sureties, for his appearance in such Court, or any other Court to which the case may be transferred for trial. [s 88.1] Changes.— Section 88 corresponds to old section 91 with addition of certain words so that the surety’s liability does not come to an end with the transfer of the case to another Court. [s 88.2] Scope and application of section 88.— The section applies only to person present in Court and is free [Madhu Limaye v Ved Murti, AIR 1971 SC 2481 : 1971 Cr LJ 1715 : (1970) 3 SCC 739]. By necessary implication the section also grants the power to commit the person to custody where he fails to give security for attendance [Vasudeo, AIR 1958 A 578]. Magistrate has no power to commit a person to custody if he refuses to execute a bond [Ramchandra v State of UP, 1977 Cr LJ 1783 (All) : 1977 All Cr C 275 : 1977 All WC 485 (Vasudeo, AIR 1958 A 578 held no longer good law in view of Natabar Parida Bisnu Charan Parida Batakrushna Parisa Babaji Parida v State of Orissa, AIR 1975 SC 1465 : 1975 Cr LJ 1212 : (1975) 2 SCC 220 : (1976) 1 SCJ 151]. Bond by a Mukhtar was accepted [Kazim, 1901 AWN 35] though the section required it from the person concerned. Witness cannot be arrested and placed in lock-up [Kazim, supra].

Section 88 does not apply to proceedings under chapter 8 [Madhu Limaye v Divisional Magistrate Monghyr, AIR 1971 SC 2486 : 1971 Cr LJ 1720 : (1970) 2 SCC 746 : (1971) 2 SCJ 479].

The Court is not bound to extend the benefit of section 88, Code of Criminal Procedure, 1973, where the accused has been summoned under section 319, Code of Criminal Procedure, 1973 [Munkad v State of UP, 2003 Cr LJ 4649 (4650) (All) : 2003 All LJ 2421 : (2003) 47 All CrC 483].

When the accused moved an application for release under section 138, Negotiable Instruments Act after getting

Page 2 of 2 [s 88] Power to take bond for appearance.— a summons order for executing personal bond and surety for his release, not under framework of law is illegal. [K Pandarinathan v V Raju, 1998 Cr LJ 1128 (Kant) : 1998 (2) Kant LJ 144 : 1998 (3) Rec Cr R 35].

A person added as accused during trial cannot be preserved to be innocent since because the police did not submit charge-sheet against him. So in the event he moves an application for bail, the same would be considered on the basis of the evidence adduced by the prosecution section 88 cannot be interpreted to mean that the person who has been added an accused by Courts order cannot be remanded to judicial custody and without there being any order of bail, Court will release him on his executing bond with or without sureties. The aforesaid provision is not a substitute of sections 437 and 439 of the Code [Vedi Ram v State of UP, 2003 Cr LJ 1084 : 2003 All LJ 51 : 2003 (46) All Cr C 34 : 2003 (1) All Cr R 104 : 2003 (1) Rec Cr R 647 (All)]. [s 88.3] Failure to execute bond.— The Code is silent as to consequences of failure to execute a bond required under section 88 of Code of Criminal Procedure, 1973. In any case the person cannot be remanded to custody as no Magistrate has power to commit a person to custody in the event of his refusing to execute a bond [Ram Chandra v State of UP, 1977 Cr LJ 1783 (All) : 1977 All Cr C 275 : 1977 All WC 485]. It is to be noted that there is not inherent power in a Court to order remand [Natabar Parida Bisnu Charan Parida B.P.B. Parida v State of Orissa, AIR 1975 SC 1465 : 1975 Cr LJ 1212 : (1975) 2 SCC 220].

End of Document

[s 89] Arrest on breach of bond for appearance.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER VI PROCESSES TO COMPEL APPEARANCE > D.—Other Rules Regarding Processes

The Code of Criminal Procedure, 1973 CHAPTER VI PROCESSES TO COMPEL APPEARANCE D.—Other Rules Regarding Processes [s 89] Arrest on breach of bond for appearance.— When any person who is bound by any bond taken under this Code to appear before a Court, does not appear, the officer presiding in such Court may issue a warrant directing that such person be arrested and produced before him. [s 89.1] Changes.— Section 89 corresponds to old section 92. [s 89.2] Notes.— Court of first instance which initially granted bail has jurisdiction to cancel it and order rearrest [Pannalal v R.K. Sinha, AIR 1967 All 394 : 1967 Cr LJ 980 : ILR (1965) 2 All 790]. Proceedings may also be taken under section 446 to forfeit the bond.

The accused appearing before the Court in execution of warrant or himself appearing in bailable offences, has a right to be released on bail [Punit Singh v State, (2004) 3 Crimes 622 (624) (Del)].

End of Document

[s 90] Provisions of this Chapter generally applicable to summonses and warrants of arrest.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER VI PROCESSES TO COMPEL APPEARANCE > D.—Other Rules Regarding Processes

The Code of Criminal Procedure, 1973 CHAPTER VI PROCESSES TO COMPEL APPEARANCE D.—Other Rules Regarding Processes [s 90] Provisions of this Chapter generally applicable to summonses and warrants of arrest.— The provisions contained in this Chapter relating to a summons and warrant, and their issue, service and execution, shall, so far as may be, apply to every summons and every warrant of arrest issued under this Code. [s 90.1] Changes.— Section 90 corresponds to old section 93.

End of Document

[s 91] Summons to produce document or other thing.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER VII PROCESSES TO COMPEL THE PRODUCTION OF THINGS > A.—Summons to Produce

The Code of Criminal Procedure, 1973 CHAPTER VII PROCESSES TO COMPEL THE PRODUCTION OF THINGS A.—Summons to Produce [s 91] Summons to produce document or other thing.— (1) Whenever any court or any officer in charge of a police station considers that the production of any document or other thing is necessary or desirable for the purposes of any investigation, inquiry, trial or other proceeding under this Code by or before such court or officer, such court may issue a summons, or such officer a written order, to the person in whose possession or power such document or thing is believed to be, requiring him to attend and produce it, or to produce it, at the time and place stated in the summons or order. (2) Any person required under this section merely to produce a document or other thing shall be deemed to have complied with the requisition if he causes such document or thing to be produced instead of attending personally to produce the same. (3) Nothing in this section shall be deemed— (a) to affect sections 123 and 124 of the Indian Evidence Act, 1872 (1 of 1872), or the Bankers’ Books Evidence Act, 1891 (13 of 1891), or (b) to apply to a letter, post card, telegram, or other document or any parcel or thing in the custody of the postal or telegraph authority. [s 91.1] Changes.— Section 91 corresponds to the old section 94 with the following changes:

(1) In sub-section (1) the words “in any place beyond the limits of towns of Calcutta and Bombay” after “Whenever any Court” have been omitted. (2) Sub-section (3) has been divided into clauses (a) and (b) and certain words have been added. [s 91.2] Scope and Application of section 91.— This and the following sections deal with the production of any document or other “thing”. It may be secured either by summons (sections 91 and 92) or by warrant (sections 93, 95 and 101). The power under section 91 of Code of Criminal Procedure, 1973 can be exercised at any time [Nadeem v State of Rajasthan, 2006 (4) East Cri C 313 (Raj)].

Page 2 of 12 [s 91] Summons to produce document or other thing.— The scope of section 91 is very wide and it cannot be restricted only to the documents on which the prosecution relies nor to the stage contemplated by section 233 or 243 of the Code. There may be cases where for an effective cross-examination of a witness, the cross-examiner would require certain documents in his hand. Without the availability of such documents, the rights and obligations of a cross-examiner, under sections 155(3) and 145 of the Indian Evidence Act, cannot be effectively discharged or exercised by him. To overcome such a situation, he can urge the court to supply such documents to him. If they are in the court, copies thereof can be supplied, but if they are not, the court would be expected to use the powers under section 91 of the Code, whenever it finds it necessary or desirable [Kamal Ahmed Mohammed Vakil v State of Maharashtra, 2013 (2) Bom CR (Cri) 217 : 2013 Cr LJ 858 (Bom)].

An accused is not precluded from the purview of section 91 of Code of Criminal Procedure, 1973 [Kuriland Pvt Ltd v P J Thomas, 2008 (4) Ker LT 585 (Ker) : 2009 CriLJ 763].

Before the court allows an application for production of a document in the possession of a party, complainant or accused, the other party must be issued notice and given hearing [Sethuraman v Rajamanickam, 2009 Cr LJ 2247 (2248) : (2009) 5 SCC 153].

Whenever any person is summoned by a court to produce a document in his possession or power, he is bound to bring it to court or send it through some other person under section 162 of the Evidence Act, although he may claim any privilege or raise any legal objection to its admissibility or production. The physical production of the document is compulsory. [See Sarkar’s Evidence Act, 13th Edn 162 p 1432 et seq]. A person appearing in response to a summons under section 91 does not become a witness even if he produces a document, and he cannot be examined and cross-examined by the court unless he is called as a witness [Parmeshwarii Devi v State, AIR 1977 SC 403 : 1977 Cr LJ 245 : (1977) 1 SCC 169]. Failure to produce is punishable under section 155 of Indian Penal Code, 1860. For search by police officer for documents (see section 165). Issue of any “compulsory” process on the accused to produce any thing or document which is reasonably likely to support any prosecution against him, contravenes Article 20(3) of the Constitution of India, but not the issue of a search warrant under section 96 (now section 93) [M P Sharma v Satish Chandra, AIR 1954 SC 300 : 1954 SCR 1077 : 1954 Cr LJ 855 : 1954 SCJ 428 : but the former observations were held to be obiter in Md. Dastagir v State of Madras, AIR 1960 SC 756 : 1960 Cr LJ 1159 : 1960 SCJ 726 and Kathi Kalu, AIR 1961 SC 1808 : (1961) 1 SCJ 195; (cited under heading “Person, Whether it includes accused post)]”.

Where there was nothing to show that summons was issued by the Investigating officer with mala fide intentions, court declined to interfere with the order of the Investigating officer under section 91. Merely because the order by Investigating officer to produce books of account, etc. would cause inconvenience to the person from whom it is summoned, it cannot be said that the order is beyond the purview of section 91. [Surendra Mohan Saria v KP Mani Tripathi, (1986) Cr LJ 1324 (All) : 1986 All Cr C 251 : 1986 (2) Cur CC 195 : 1986 All WC 176]. When the Investigating officer is in need of certain documents/information for verification with reference to the investigation it is but proper to place all the materials under section 91 of the Code [CBI v Vijay Sai Reddy, AIR 2013 SC 2216 : (2013) 7 SCC 452 : 2013 Cr LJ 3016 (SC)].

Section 173(2) of Code of Criminal Procedure, 1973 does not limit the jurisdiction of the court under section 91 of the Code [Dhananjay Kumar Singh v State of Rajasthan, 2006 Cr LJ 3873 (3882, 3883) : 2006 (2) Raj LR 245 (Raj) : 2006 (3) Raj LW 2217 : 2006 (4) Rec Cri R 163].

In the present case, the role of the A.G.P. was also condemnable. An important witness, the mother of the deceased, was not served at any time who could throw sufficient light on the facts. The learned A.G.P. knowing well that the letters said to have been written by the deceased prior to her death were seized and also sent for opinion by a handwriting expert, but did not make any effort to produce the same before the court. It was his onerous duty to direct the concerned investigating agency to take effective step for bringing all those letters alongwith handwriting expert’s report for filing before the court. The court also left the case at the mercy of the A.G.P. Order of Trial Court was set aside and the High Court decided that the mother of the deceased be

Page 3 of 12 [s 91] Summons to produce document or other thing.— examined as prosecution witness and the documents in question be produced before the Trial Court [Ramesh Chandra Agrawal v State of MP, 2004 Cr LJ 721 (MP)].

Section 91 empowers a court to issue summons or in the case of a police officer an order for the production of any document or other thing in the possession or power of a person which is considered “necessary or desirable” for the purpose of “any investigation, inquiry, trial or other proceeding” (words which are very wide Kishore, 47 C 164). Although the language is very wide, the discretion must be exercised judicially. Anything which may reasonably be a part of the evidence or anything which though not evidence has a direct connection between it and the subjectmatter of the proceeding may be ordered to be produced, but not a thing which has no connection with enquiry in hand. Thus, when the charge was obtaining money by forging a cheque and the money thus obtained was deposited by the accused in a Bank, seizure of the money by a warrant on the Bank is improper. The money was the property of the Bank and the accused had only an actionable claim against the Bank which cannot be produced in the court. Conviction or acquital, the money had to be returned to the Bank [Lloyds Bank, 58 B 152]. In order to evade the law, Magistrates are sometimes induced to issue “stop orders” on Banks preventing the accused from operating his account, but that also would be illegal [see Makhan, 40 Cal WN 96 and notes to section 452, post). So also stopping of payment of the bills of the accused [Prafulla, AIR 1952 Gau 24].

The powers conferred under section 91 are enabling in nature aimed at arming the court or any officer in charge of a police station concerned to enforce and to ensure the production of any document or other things necessary or desirable for the purpose of any investigation, inquiry, trial or other proceeding under the code, by issuing summons or a written order to those in possession of such material. The language of section 91 would, not doubt, indicate the width of the power to be unlimited but the inbuilt limitation inherent therein takes its colour and shape from the stage or point of time of its exercise, commensurately with the nature of the proceedings and also the compulsions of necessity and desirability, to fulfil the task or achieve the object. The Trial Court should address itself to find whether there is sufficient ground for proceeding to the next stage against the accused. If the accused could produce any reliable material even at that stage which might totally affect even the very sustainability of the case, a refusal to even look into the materials so produced may result in injustice, apart from averting an exercise in futility at the expense of valuable judicial/public time. The court concerned must be allowed a large latitude in the matter of exercise of discretion and unless in a given case the court was found to have conducted itself in so demonstrably an unreasonable manner unbecoming of a judicial authority, the court superior to that court cannot intervene very rightly or in a routine fashion to interpose or impose itself even at that stage. Therefore it is to be only seen as to whether the Trial Court has judiciously and judicially exercised as discretion [Om Prakash Sharma v CBI Delhi, AIR 2000 SC 2335 : 2000 Cr LJ 3478 ].

The accused under section 91 of Code of Criminal Procedure, 1973 cannot ask the production of documents as a matter of right. However, while making application, he has to specify the document and show its relevance. He cannot ask the court to make roving and fishing inquiry, only when he discloses the nature of document and its relevance, the court is to decide if the document sought to be numbered was necessary or desirable for the just decision of the case. When the applications for documents were made by the accused persons after about 13 years of the incident, it was held that the applications were made with an intention to delay the trial. [Sukhmohinder Singh Sandhu v CBI, 2011 Cr LJ 903 (908) (Del); see also Dr Rajesh Talwar v CBI, (2014) 1 SCC 628 : 2013 (12) Scale 464].

The powers of the court to summon production of documents by police in appropriate case is not curtailed by sections 172 and 173 of Code of Criminal Procedure, 1973 [Neelesh Jain v State of Rajasthan, 2006 Cr LJ 2151 (Raj)].

The subjectmatter of summons or search must be a specified article or thing. There can be no general search by using such expression as “stolen property relevant to the case” [Prankhang, 16 Cal WN 1078, 1081; Bissar, 17 Cal WN 1209; Bajrangi, 38 C 304]. The power is to issue a summons for production, but not to order the police to take possession [Hari, 38 C 68]. The general right given to the court under section 91 is different from

Page 4 of 12 [s 91] Summons to produce document or other thing.— the right given under section 243(2), and is not in any way circumscribed or controlled by section 243(2) [KV Ramkrishna Reddy v State, 1975 Cr LJ 980 : (1975) 1 An WR 199 : 1975 Mad LJ (Cri) 233 : 1975 Andh LT 68].

The power enshrined in section 91(1) cannot be invoked against any accused. [H Mohammed Ibrahim Kaleel v State, 2008 Cr LJ 3167 (3170) (Mad) following 1965 Cr LJ 256.] [s 91.3] Accused cannot summon records of police station.— Accused cannot summon the records of the police station, only the court may call for the records of the police station if it finds necessary for the just decision of the case [Stalin alias Stalin Samul v State, 2008 Cr LJ (NOC) 191 (Mad)]. [s 91.4] Whenever.— It is clear from the word “whenever” used in the section that the section empowers the court to exercise this power at the instance of the accused even before he enters on his defence. [s 91.5] Exercise of the power.— The power may be exercised at any stage at the request of any party including the accused whose right to apply under section 257 (now section 247) comes into play only at a particular stage of the trial. Sections 91 and 247 are not antagonistic but interdependent [Md Rahim, AIR 1935 SC 13 FB]. In a case to which section 251A (now section 243) applies, the accused can under section 94 (now section 91) apply for production of documents to enable him to cross-examine witness before entering upon his defence. [Armugam, AIR 1961 My 198; Hari Charan v State AIR 1955 P H 17 : 1955 CriLJ 315; KV Ramakrishna Reddy v The State, 1975 Cr LJ 980 : 1975 (1) Andh WR 199 : 1975 Andh LT 68 : 1975 Mad LJ (Cri) 233] or before the framing of charge. [Raghotham, AIR 1963 AP 362 : 1963 Cr LJ 253; K V Rama Krishna Reddy, sup]. If an accused desires to call for some documents, it cannot be refused merely on the ground that, if necessary they may be summoned at the defence stage [Hari Charan v State AIR 1955 P H 17 : 1955 Cr LJ 315].

Instead of issuing a summons under section 91 (or a warrant under section 93), the court cannot demand security for the production of anything when required [Purna, 7 Cal WN 522]. But, if after issue of such a process, the person appears and offers to execute a bond for production of the articles, the process may be stayed [Kishori, 47 C 164].

If a person is present in the court with a document, the court has inherent power to call upon him to produce it [Gangaram, AIR 1936 A 211]. A Civil Court dealing with an application under section 476 (now section 340) cannot take action under section 94 (now section 91) [Bishambhardas v Mukta, AIR 1942 Nag 73 : [1942] ILR Nag 667].

The police have no power to issue any requisition or order on an IncomeTax Officer for production of incometax return in view of section 54 IT Act (section 137 of Act 1961) [I.T. Officer, AIR 1950 P H 306 FB : 51 Cr LJ 1273]. The ban in section 54 IT Act (section 137 of Act 43 of 1961) applies to documents produced by the assessee himself as also by a third party. It overrides the power of the Criminal Court under section 94 (now section 91) [Laxmichand, AIR 1972 SC 1121; Charu Chandra Kundu v Gurupada Ghosh, AIR 1962 SC 1119 : (1962) 2 SCR 833 : (1961) 2 SCJ 537].

When the Investigating Officer is in need of certain documents/information for verification with reference to the investigation, it is proper to place all the materials under section 91 of the Code before the Special Court. There is no need to get direction from the High Court [Central Bureau of Investigation v V Vijay Sai Reddy, AIR 2013 SC 2216 : (2013) 7 SCC 452 : 2013 Cr LJ 3016].

If the court authorises a police officer to investigate a non-cognizable offence, he must observe the formalities of sections 91 and 165 before he can compel the production of any article. Verbal order is forbidden [Durgadas, AIR 1943 Lah 28]. An order under section 94 (now section 91) may be made for production of a thing in anticipation of an order to be made under section 517 (now section 452) [Lloyds Bank, AIR 1934 Bom 74 : 1934 (36) Bom LR 88 : 149 Ind. Cas. 1005].

Page 5 of 12 [s 91] Summons to produce document or other thing.— [s 91.6] Necessary or desirable.— The jurisdiction to order production of a thing or document comes into play after the court being satisfied decides that it is “necessary or desirable” that it should be produced as being relevant or having some connection with the subjectmatter of inquiry [Lakhmidas, 5 Bom. LR. 978, 980; Md. Jackariah, 15 C 109; Arakswami, A 1934 N 142; Md. Rahim, AIR 1935 SC 13 FB].

In terms of section 91 of Code of Criminal Procedure, 1973, it becomes incumbent upon the Magistrate to make himself satisfy as to whether the production of a particular document or book is necessary or desirable for the purpose of investigation, inquiry or trial of any case, before he passes the order for production of such document [Sanjay Kumar Choudhary v State of Jharkhand, 2011 (1) JCR 275 (277) (Jhar)].

Satisfaction of the court must appear expressly from the order which must also contain reasons for it. Noncompliance with the provisions makes the order bad [Ajay Mukherji v State, 1971 Cr LJ 1329 (Cal)]. The court is bound to consider whether there is a prima facie case for supposing that the document is relevant [Hussenbhoy, AIR 1941 B 259; Graves, AIR 1943 SC 51]. The thing called for may turn out to be irrelevant, but so long as it is considered necessary or desirable, the power to call for it exists [Nizam, 19 C 52]. [s 91.7] Production of documents for disposal discharge petition.— The discharge petition is filed by the accused at volition based on the materials made available at the moment on record since, in the case in hand, the said discharge petition has been filed not only by this petitioner but also by the other accused independently after framing of the charge seeking for summoning the documents or causing production of the same before the accused is too much a privilege claimed on the part of the accused particularly to suit his convenience of discharge and therefore, the court held that no such luxurious prayer could be made on the part of the accused nor was it incumbent on the part of the court to order those petitions and it was only proper for the accused to argue his discharge petition based on those materials made available on record at the moment since it was not the full trial that was under way for the accused to exhaust all his remedies when the court was expected to consider the request of the accused in summoning such documents of course depending upon the nature of the documents and the circumstances of the case [M Sathiamoorthi v State, 2004 Cr LJ 1623 (Mad)]. [s 91.8] By or before such court.— Action under section 91 may be taken not only when any case or proceeding is pending but also at any time, in view of an enquiry, about to be made [Clarke, 39 C 953 PC, see post notes to section 93 : When can power under section 96 be exercised]. [s 91.9] Document or other thing [Inspection].— “Document” [See section 3(18) General Clause Act 1897; section 3 Indian Evidence Act; section 29 of Indian Penal Code, 1860]. The document may form the subject of an offence or it may be required as evidence [Lakshmidas, 5 Bom LR 980; Md Jackariah 15 C 109]. Court can call for the statements of witnesses at an inquest or inquiry in a murder case as the accused has the right to get a copy [Chanet, AIR 1925 Mad 424 : 85 Ind. Cas. 42 : 1924-20-LW 745]. Statements of witnesses for purpose of section 145 of Evidence Act may be sent for under section 94, if required by the accused [Michael, 1933 MWN 1270]. Production of departmental enquiry papers was rightly refused [Chhotey Miyan v Emperor, AIR 1936 Nag 250 : 167 Ind. Cas. 860]. It is a misuse of the section to order the production of a woman. She is not a thing [Bisu, 11 Cal WN 836]. The word “thing” refers to physical or material object and does not refer to an abstract thing. Summons cannot be issued to a person for the purpose of taking his specimen signature or handwriting [T Subbiah v S K D Ramaswamy Nadar, AIR 1970 Mad 85 : 1970 Cr LJ 254 : 1969 Mad LW (Cri) 117]. “Thing” does not include the configuration of a wall or inspection of any place inside a house for investigation [Jagannath, 29 Cr LJ 272]. Stopping of payment of bills of the accused in proceedings against him under sections 420, 406 of Indian Penal Code, 1860 is illegal [Prafulla, AIR 1952 Gau 24].

It has generally been held that after production of the document or thing in court the Magistrate may allow inspection [Lakshmidas, 5 Bom LR 980; Md Jackariah, 15 C 109; Ajay, 33 Cal WN 370]. But it is not that an order for production involves as a necessary consequence a right of inspection by the complainant. The court may after hearing both sides order inspection of only those documents (or portions) which it is satisfied are really relevant [Hussenbhoy, AIR 1941 B 259 FB : 42 Cr LJ 831; Central Bank, AIR 1938 Bom 33 SB : 39 Cr LJ

Page 6 of 12 [s 91] Summons to produce document or other thing.— 207], or those books or portions of books which relate to the subjectmatter of enquiry [Md Jackariah, sup]. Order to take photographic copies of account books seized is illegal [Geeverghese, AIR 1955 Ker 256 : AIR 1956 Ker 256 : 1956 Cr LJ 1364].

As to prosecution documents not summoned, but already in court, the accused is not entitled to inspect until they are tendered in evidence or used at the trial [Swaminathan, AIR 1944 Mad 419 : 1944 57 LW 338 : 1944 MWN 348] and the accused has no right to insist upon the prosecutions putting them in evidence [Md Jackariah, sup; Lakhmidas, 5 Bom LR 980]. Section 91 does not empower a Magistrate to direct the prosecution to give copies of any document to an accused [Assistant Collector of Customs v L R Malwani, AIR 1970 SC 962 : 1970 Cr LJ 885]. But see now section 207 under which any case instituted on a police report, the Magistrate is required to furnish to the accused before the commencement of any inquiry or trial, free copies of all documents on which prosecution proposes to rely.

As far as the case diary in the counter case and the general diary of the case are concerned, the petitioners can invoke the provision of section 91 of Cr PC seeking production of those documents, but, the petitioners have to satisfy the court that those documents are necessary or desirable for the trial of the case. It is found that the petition filed under section 91 of the Code of Criminal Procedure, 1973 is completely bereft of any particulars reflecting the necessity or desirability of production of those documents for the purpose of trial of this case. A very vague averment is found to the effect that production of such documents would bring truth to light and the custody of the same is necessary for the trial. Such averments are not sufficient to convince the court to arrive at a conclusion that those documents are necessary for trial [Alagesan v State, 2008 Cr LJ 3300 (3301, 3302) (Mad) : 2008 (2) Mad LJ (Cri) 1335]. [s 91.10] Section 91(1)—”Court may”— Reasons should be given for the order [Somiah, In re:1970 Cr LJ 618 (AP) : 1969 (1) Andh WR 530 : 1969 Mad LJ (Cri) 435; Shiv Dayal v Sohan Lal Bassar, AIR 1970 P&H 468 : 1970 Cr LJ 1517 : 72 Punj LR 348].

The power enshrined in section 91(1) of the Code cannot be invoked against any accused [H Mohamed Ibrahim Kaleel v State, 2008 Cr LJ 3167 (3170) : 2008 (2) Mad LJ (Cri) 394 (Mad) : 2008 (1) Mad LW (Cri) 263].

The court can initiate the process to produce the gift deed in issue where it is necessary for the ends of justice [Khursheed Anwar v State of Bihar, 2007 (1) Pat LJR 399 (Pat); Laxman Bhagat v State of Bihar, 2008 (3) Pat LJR 615 (Pat)].

The court has discretion in the matter and prima facie the document must be relevant and its production must in addition be desirable. The matter has been considered in detail in Bashir Hussain Peshimam v Gulam Mohomed Ismail Peshiman, AIR 1966 Bom 253 : 1966 Cr LJ 1395 : 67 Bom LR 748]. So also The Public Prosecutor, AP v Pocku Syed Ismail, 1973 Cr LJ 931 (AP) : 1972 (2) Andh LT 202 : 1973 Mad LJ (Cri) 52; Ram Krishna, 1975 Cr LJ 980 (AP) : 1975 (1) APLJ (HC) 98 : 1975 (1) AnWR 199].

In this case, the petitioner sought the production of diaries maintained by police office earlier to registration of case. The documents could not be traced due to lapse of time. It was held that it was not expected from a police officer under the provisions of section 91 of the Code to record and maintain in police station all the events and particulars which happened prior to investigation (Petitioner’s application was dismissed). [Jesubalan v State Inspector of Police, 2011 Cr LJ (NOC) 50 (Mad)]. [s 91.11] Section 91(1) : Discretion.— Possibility of tampering with the document may be an important reason for making an affirmative order [Asst. Collector of Customs v L R Melwani, AIR 1970 SC 962 : 1970 Cr LJ 885]. [s 91.12] FIR regarding alleged document as forged—Civil dispute also existing— Original copy in Civil Court—Direction of High Court.— Considering the fact that the agreement is a forged one, it is imperative that FSL report be sought about its genuineness as in the absence of FSR report, the prosecution case would be weakened. Therefore, keeping in

Page 7 of 12 [s 91] Summons to produce document or other thing.— view the rule 81 of the General Rules (Court) 1986, the High Court directed the Additional C.J.M. to handover the original copy of the agreement which has been submitted in the civil suit within a stipulated period [Bondal v State of Rajasthan, 2006 Cr LJ 1715 (Raj)]. [s 91.13] Scope of order of section 91.— Order cannot be passed to freeze a bank account [Makhan, (1936) 40 Cal WN 96] or to stay payment of certain file [Prafulla, AIR 1952 A 24]. This is so even though the word “thing” (as held in several cases), carries a wide meaning see T. Subbaih v S K D Ramaswamy Nadar, AIR 1970 Mad 85, 86 : 1970 Cr LJ 254; Lloyds, AIR 1934 B 74 : 1969 Mad LW (Cri) 117; see also Dr Rajesh Talwar v CBI, (2014) 1 SCC 628 : 2013 (12) Scale 464]. [s 91.14] Article 20(3) Constitution of India.— As to the scope of Article 20(3) in regard to production of incriminating material, see the undermentioned decisions:

(i)

Shyamlal, AIR 1965 SC 125 .

(ii) Kathi Kalu, AIR 1961 SC 1808 , 1814, 1816. (iii) Ramakrishanan, AIR 1980 SC 185 . (iv) Dastagir, AIR 1960 SC 756 , 761. (v) Narain Lal Bansilal v Maneck Phiroz Mistry, AIR 1961 SC 29 ; See P M Bakshi, Selective Commentary on the Constitution. [s 91.15] Person : [Whether it includes accused].— Document or thing in the possession or power of any person may be called for. He need not be a party, nor can any lien be pleaded by a solicitor as an objection [Nizam, 19 C 52; Md Jackariah, 15 C 109; Ker, 62 C 1037 : 39 Cal WN 917].

In some cases it was held that, “person” includes an accused though the documents or thing may tend to incriminate him [Konda Reddi, 37 M 112; Md Jackariah, sup; Bisser, 41 C 261; Munpl. Com, 16 Cr LJ 225]. The seemingly contrary opinion in Ishwar, 12 Cal WN 1016 (approved in Bajrangi, 38 C 304) did not lay down the general proposition that the powers in sections 94 (now section 91) and 165 did not extend to the accused persons [see Bisser, 17 Cal WN 1209, 1210–11 : (1914) ILR 41 Cal 261]. These cases were, however, decided before the Constitution of India came into force.

It has now been definitely held by the Supreme Court in Shyamlal, AIR 1965 SC 1251 that section 94 (now section 91), on its true construction, does not apply to an accused person. [See also M Kalanithi Maran v State, 2004 Cr LJ 1288 : 2004 (1) Ker LJ 736 : 2004 (1) Mad LW (Cri) 288 : 2004 (3) Rec Cr R 793 (Mad); Manjula Ramlal Barot v Ishwarlal P Barot, 2006 Cr LJ 3779 (Bom); Mohamed Ibrahim Kaleel v State, 2008 Cr LJ 3167 (3171)]. Though the language is general and prima facie apt to include an accused person, there are indications that the legislature did not intend to include an accused person. The words “attend and produce” are rather inapt to cover the case of an accused person. It would be an odd procedure for a court to issue a summons to an accused person present in court to attend and produce a document. It would still be more odd for a police officer to issue a written order to an accused person in his custody to attend and produce a document. If the production of the thing or document cannot be ordered against an accused person having regard to the general scheme of the Code and the basic concept of criminal law (that the accused cannot be compelled to discover that which would tend to subject him to any punishment, etc.), the generality of the words “the person” as used in the section is of no significance because the person referred to in the section must be identical with the person who can be directed to produce the thing or document.

Though the court has the power to require any person in whose possession any document is believed to be, which is required for trial of the case, to attend and produce such document, but section 91 Code of Criminal

Page 8 of 12 [s 91] Summons to produce document or other thing.— Procedure, 1973 nowhere empowers the court to compel an accused to produce any evidence against him [Kanti Kumar v State of Jharkhand, 2013 (1) Crimes 212 (214) (Jhar) : 2012 (3) J. LJR 466]. [s 91.16] Position regarding accused.— Where it is intended to require an accused person to produce a document etc., a summons cannot therefore be issued under this present section 91; and necessarily first two paras of old section 96 [clauses (a) and (b) of sub-section (1) of present section 91] would be useless in relation to the accused, as the Supreme Court has also noted it though it has pointed out that a general search or inspection can still be ordered under last para of old section 96 (1) [i.e. clause (c) of present section 93 (1)] and, so far as police officers are concerned, section 165 can be resorted to. It would be therefore now of not much practical value to discuss the question of constitutionality as to whether the process on the accused calling him to produce a document infringes Article 20(3) of the Constitution of India. However, the cases below on this question of constitutionality may also be noted with profit. [s 91.17] Production of document.— It was held by the Calcutta High Court that process on the accused calling upon him to produce a document does not contravene Article 20(3) of the Constitution of India, but he cannot be required to prove the document [Satyakinkar, 55 Cal WN 627 FB : AIR 1951 C 101]. Without deciding whether section 94 applies to an accused, it has however, been held by the Supreme Court that assuming that it did apply, a notice to the accused to produce a document and his production in compliance therewith constitutes a testimonial act within Article 20(3). The guarantee against testimonial compulsion is not confined to oral evidence but extends to evidence by production of documents. The protection would extend to any compulsory process for production of evidentiary documents which are reasonably likely to support a prosecution against the accused. But search and seizure of things by issue of a search warrant under section 96 (now section 93) are not the testimonial acts of the occupier of the premises in any sense and do not infringe the article [Sharma, M P v Satish Chandra, 1954 SCR 1077 : AIR 1954 SC 300 : 1954 Cr LJ 865 : 1954 SCJ 428].

The person, against whom offences have been alleged in a complaint filed before the Magistrate, is an accused person notwithstanding the fact that an enquiry, envisaged in section 202 of the Code was still pending. No order under section 91 of the Code can be issued against such a person. [V Gopalakrishna Nayanar v K V S Nambiar, 1996 Cr LJ 1302 at p 1304 (Ker) : 1996 (2) Crimes 12 : 1966 (1) Ker LT 83].

Absence of date on summoning order makes such order void and has no relevance; summoning order of later date though proper yet demanding some confidential papers without reasons behind such summoning is not correct. [K Sivanandan v State, 1999 Cr LJ 2442 (Mad) : 1999 (2) CTC 252 : 2001 2 LW (Crl) 643].

When requisition by accused of relevant documents in court is well founded then summons can be issued to produce documents. [Pawan Duggal v State, 2001 Cr LJ 3918 (Del) : (2001) 92 DLT 262].

Where the order of refusal to issue summons for production of documents was prejudicial to accused, then such order is not sustainable. [S Srinivasan v Decaon Petroleum Ltd, 2001 Cr LJ 569 (AP) : 2000 (2) Andh LT (Cri) 370]. [s 91.18] Specimen writing.— Relying on Sharma’s case, it was held in many cases that a mere direction on the accused to give specimen writing or finger impression or the issue of a compulsory process for the production of any document which is reasonably likely to support the prosecution case infringe Article 20(3) of the Constitution of India [see Swarnalingam, AIR 1956 Mad 165; Rajamuthukoil, AIR 1956 Mad 632; Gupta, AIR 1959 All 219 : 1959 Cr LJ 410; NagpurEI& Co, AIR 1961 B 242 : 1961 (63) BomLR 559 : [1961] 31 CompCas 324 (Bom) : ILR 1961 Bom 508; Ranchordas, AIR 1961 Guj 137 : 1961 CriLJ 338 : (1961) 2 GLR 415]. Another group of cases held that a mere direction by the court to give specimen writing or finger impression does not violate that article [Gopala Rao, AIR 1953 Kant 117 : AIR 1954 Kant 117; Sailendra, AIR 1955 Cal 247 : 1955 CriLJ 107; Pakhar, AIR 1958 P&H 294 : 1958 Cr LJ 1084; Re: Palani, AIR 1957 M 546 : 1957 CriLJ 976; Ranjit Ram, AIR 1961 All 456 (FB) : (1961) 31 AWR 320 : 1961 Cr LJ 306; Mahalchand, AIR 1961 Cal 123 : 65 Cal WN 433 : 1961 Cr LJ 249]. The principle of such decisions is that the constitutional inhibition in Article 20(3) prohibits compulsion or force in obtaining oral or written testimony. While production of an incriminating document or thing by an

Page 9 of 12 [s 91] Summons to produce document or other thing.— accused which is likely to support the prosecution by means of a compulsory process may constitute a testimonial act, the mere issue of a process on him for such production does not by itself infringe Article 20(3). An accused has the right to decline to produce such incriminatory document. So, if an accused complies with the direction of the court voluntarily producing the document or voluntarily giving specimen handwriting or finger impression, there is no violation of Article 20(3) as there has been no compulsion [see Abu Ismail, AIR 1959 Bom 408 : 1959 (61) BomLR 345 : 1959 Cr LJ 1057 : ILR 1959 Bom 865; Balraj, AIR 1960 All 157 : (1959) 29 AWR 629; Badrilal, AIR 1960 Raj 184 : 1960 Cr LJ 1000 : RLW 1958 Raj 376; Niranjan, AIR 1960 All 323; Ranjit Ram, AIR 1961 All 456 FB : (1961) 31 AWR 320 : 1961 Cr LJ 306]. The mere absence of warning that he was free to refuse will not bring about compulsion [Ranjit Ram, sup]. The privilege can also be waived; it may be waived by voluntarily producing the document or by voluntarily going to the witnessbox or by failure to claim the privilege [see Subedar, AIR 1957 All 396 : 1957 Cr LJ 698; Sankaran, AIR 1960 Ker 392 : 1960 Cr LJ 1603 : 1960 KLJ 805; Pakhar, AIR 1958 P H 294 : 1958 Cr LJ 1084].

It will appear from the cases cited above that in many instances it was only on the authority of Sharma’s case that some of the High Courts held that a mere direction on the accused to give specimen writing or finger impression infringed Article 20(3). The observations quoted above in Sharma’s case and similar other remarks (though obiter were taken as actual decisions and wrongly interpreted by some of those High Courts. These observations in Sharma’s case were, in a later case) declared as obiter as the actual decision in Sharma’s case was that seizure of documents by issue of search warrant is not unconstitutional. The Supreme Court observed that the accused was, no doubt, asked by the police officer to produce the incriminating articles (currency notes), but it was within his power to refuse to comply with the request, but as he produced the notes willingly, there was no compulsion and therefore no violation of Article 20(3) [Md Dastagir v State of Madras, 1960 (3) SCR 116 : AIR 1960 SC 756 : 1960 Cr LJ 1159 : 1960 SCJ 726]. It was also reiterated in [Kathi Kalu, 1962, (3) SCR 10 : AIR 1961 SC 1808], that the observations in Sharma’s case were obiter. Therefore, the cases which held on the authority of Sharma’s case that the mere issue of a process on the accused to produce the incriminating documents or articles offended Article 20(3) are no longer good law. The accused has the right to refuse their production. This matter has been more fully discussed in Sarkar’s Evidence, 13th Edn 1981, pp 709–715.

In Kathi Kalu’s case AIR 1961 SC 1808, the Supreme Court held:—

(1) An accused cannot be said to be a witness against himself because he made a statement while in police custody without anything more. (2) The mere questioning of an accused by a police officer, resulting in a voluntary statement, which may ultimately turn out to be incriminatory, is not “compulsion”. (3) Giving thumb impression or impression of foot or palm or finger or specimen writing or showing parts of the body by way of identification is not included in the expression to be a witness in Article 20(3). (4) “To be a witness” in the ordinary grammatical sense means giving oral testimony. Caselaw has gone beyond this strict literal interpretation which bears a wider meaning, namely, bearing testimony in court or out of court by a person accused of an offence orally or in writing. “To be a witness” in this sense may be equivalent to “furnishing evidence” (as held in Sharma’s case) but not in the larger sense so far as to include giving of finger impression, etc. (5) “To be a witness” means imparting personal knowledge of revelant facts by oral evidence or statement in writing but process for production of other evidence whether documentary or material (nor imparting personal knowledge of facts) in the possession of the accused does not come within the prohibition of Article 20(3).

The Supreme Court has observed that there appears to be some conflict between the decision of Shyamlal’s case, AIR 1965 SC 1251, as held by the majority judgment without any reference to the decision of Kathi Kalu’s case, AIR 1961 SC 1808 that section 91(1) does not apply to an accused person and M P Sharma v Satish Chandra case, AIR 1954 SC 300 : 1954 Cr LJ 865, reconsidered in Kathi Kalu’s case declaring that if it is a document which is not his statement conveying his personal knowledge relating to the charge against him, the

Page 10 of 12 [s 91] Summons to produce document or other thing.— accused may be called upon to produce it [vide para (5) above] which was supported by Shah, J. in his minority judgment, but this case not being directly relatable to summons issued under section 91(1), the court did not consider it necessary to refer the matter to a larger Bench to resolve the conflict [V S Kuttan Pillai Ramakrishnan, AIR 1980 SC 185 : 1980 Cr LJ 196 : (1980) 1 SCC 264 : (1980) 1 SCJ 479]. A person summoned to produce documents under section 171-A Customs1 Act is entitled to claim protection as soon as he is asked to answer a question or produce a document which cannot be done without incriminating himself [Collector of Customs, AIR 1958 C 682].

The principle of Article 20(3) does not apply to a public document (e.g., register to be maintained for sale of State-owned property by the licensee) in the custody of the accused [Madanlal, AIR 1958 Ori 1].

Where the complainant summoned from the chairman and manager of a company certain documents which obviously contained information based upon their personal knowledge which was to be used as incriminating evidence against them, to compel production of such documents would be violation of Article 20(3) [State v Prabhu Singh, AIR 1964 Punj 325 : 1964 (2) Cr LJ 199 : 1964 Cur LJ 306 : 1964 (1) Comp LJ 112, (Kathi Kalu, sup, followed)].

Under section 91, when the matter is in the investigation stage, either on a private complaint referred to by court or on a case registered on a police complaint, the court is not entitled to pass any order by issuing summons or warrant against the accused for the production of a document or thing that is in his custody which is incriminatory against him. In the instant case, along with the private complaint, an application was filed for the production of the car. The order that has been made by the Magistrate invoking the provisions under section 91 directing the accused to produce the vehicle which was incriminatory in nature could not be sustained. [Dhulipalla Veeraiah Choudary v Kurra Veeraiah, 1988 Cr LJ 274 : 1987 (2) Andh LT 613 : 1987 (2) LS (AP) 238 (AP)]. [s 91.19] Application for production of documents in possession of accused— Observation of Magistrate about documents on merit—If proper.— It would not be open for the Magistrate to make observation on the merits of the document while deciding the application of the petitioner. The observation made are liable to be set aside. [Manjula Ramlal Barot v Ishwarlal P. Barot, 2006 Cr LJ 3779 (3786) (Bom)]. [s 91.20] Cross-examination.— Where the summons is only for production of document, the witness cannot be cross-examined [see section 139 of Evidence Act. Parmeshwari Devi v State, AIR 1977 SC 403 : 1977 Cr LJ 245 : (1977) 1 SCC 169].

A police officer investigating a case is entitled to examine any person and to take his statement in writing. This statement under section 161 Code of Criminal Procedure, 1973 can be used for establishing a contradiction or impeaching the credit of witness in the manner provided in section 162 of Code of Criminal Procedure, 1973 but can be used only under section 91 of Code of Criminal Procedure, 1973 [State of Kerala v Babu, AIR 1999 SC 2161 : 1999 Cr LJ 3491 (SC) : (1999) 4 SCC 621 : 1999 (3) Crimes 27]. [s 91.21] Case diary.— A case diary not pertaining to the trial at hand can be summoned if the court considers it necessary for the trial before it. Such an order would come under section 91 of the Code (and not under section 172). [State of Kerala v Babu, AIR 1999 SC 2161 : 1999 Cr LJ 3491 (SC) : (1999) 4 SCC 621 : 1999 (3) Crimes 27].

In case the court is of the opinion that the application under section 91 of the code is genuine and has not been moved with ulterior motive of delaying the trial, the court must exercise its jurisdiction and direct the production of the document including the case diary. Section 172(3) of the Code does not limit the jurisdiction of the court under section 91 of the Code [Dhananjay Kumar Singh v State of Rajasthan, 2006 Cr LJ 3873 (Raj); Kamal Ahmed Mohammed Vakil v State of Maharashtra, 2013 (2) Bom CR (Cri) 217 : 2013 Cr LJ 858 (Bom)]. [s 91.22] Compulsion to disclose.—

Page 11 of 12 [s 91] Summons to produce document or other thing.— Compulsion of the accused to disclose incriminatory documents is not tenable in law [S B Halli v Vyavasaya Seva Sahakari Sangh Sasanur, 1998 Cr LJ 763 (Karn) : 1997 (4) Crimes 448 : 1998 (3) Kant LJ 92]. [s 91.23] Section 91(3)(a) : Bankers Books.— The clarification regarding bankers books has been inserted in the present Code in implementation of the recommendation of the Law Commission of India, 37th Report, paras 242 and 243 and 41st Report vol I para 7.1 under the earlier Code of 1898, under section 94(3) there was controversy in this regard [Price, AIR 1937 160; Central Bank v Shamdasani, AIR 1938 B 119].

Section 5, Bankers Books Evidence Act, 1891 provides that in any legal proceeding to which the bank is not a party, no officer of a bank shall be compelled to produce any bankers’ book of which the contents can be proved under this Act (i.e. proof by certified copies) except by order of the court or Judge made for a special cause. [s 91.24] Summoning of Bank documents.— Where there is element of doubt as to whether bank does or does not maintain a cheque returning register, application for summoning the register should not be rejected [Subhash Chand Barjatya v State, 2007 Cr LJ 76 (Delhi)].

In view of the dispute involved and the fact that the Manager of the Bank had clearly stated that without going through certain records of the Bank, he could not answer the question, it was held that it was absolutely necessary to allow the production of the xerox certified copies of the documents shown at serial nos. a, b and c in the said application. As far as other statements and documents are concerned, they do not appear to be relevant for the purpose of cross-examination. Taking into consideration the heavy stake in the matter, it would be in the interest of justice to allow the production of the said documents for effective cross-examination of the witness [Sandipan Bhagwan Thorat v Ashok Dagdulal Innawat, 2008 Cr LJ 154 (Bom) : 2007 (2) Bom CR (Cri) 450 : 2007 All MR (Cri) 3485].

In the alleged dishonour of cheque case, the complainant did not indicate as to when debit slip was handed over to her by the bank. There was an element of doubt as to whether bank does or does not maintain a cheque returning register. The same can only be dispelled by summoning of the said document from the bank. It was held that rejection of application for summoning of cheque returning register was not proper [Subash Chand Barjaiah v State, 2007 Cr LJ 76 (Del) : (2006) 132 DLT 79]. [s 91.25] Sub-section (3).— Discretion is to be exercised judicially so as not to conflict with the policy in section 162 of, Code of Criminal Procedure, 1973 and in sections. 123–25 of Evidence Act [Bilal Md., AIR 1940 B 361 : 1940 (42) BomLR 787]; and also not to conflict with the provisions of the Banker’s Books Evidence Act, 1891, which provisions now certainly override the general provisions of section 91 of this code as having been specifically referred to in subsection (3). As to the privilege attached to evidence relating to affairs of the State (section 123, Evidence Act) and official communications (section 124 ibid), see Sarkar’s Evidence 13th Edn, pp 1215–1233. The protection under section 126 Indian Evidence Act cannot be availed of against an order under this section [Gangaram, 58 A 364; Public Prosecutor, AIR 1939 M 914 : 1939 50 LW 428: (1939) 2 Mad LJ 634 : 1939 MWN 1127; Chandubhai, AIR 1962 Guj 290 : (1962) 3 GLR 833 (discretion exercised illegally)]. [s 91.26] Order against Bank.— Acashier of a firm was absconding along with one lakh rupees of firm. A case under section 406 of Indian Penal Code, 1860 was registered. The accused– cashier was arrested and a bank pass book was seized from him. On the application of the proprietor of the firm, the Magistrate made an order directing the Banker of the accused–cashier to convert the cash standing in the account of the accused–cashier into a draft in the name of the proprietor of the firm and to produce it in court. The order was without jurisdiction. It was held that the fact that the accused had consented to such an order could not give the court the jurisdiction to pass such an order [Jagdish Prasad Sharma v State of Bihar, 1988 Cr LJ 287 (Pat) : 1987 (2) CrLC 309 : 1987 BLJ 575 : 1987 East Cr C 698]. [s 91.27] Revision.—

Page 12 of 12 [s 91] Summons to produce document or other thing.— An order allowing/rejecting an application under section 91 for production of a document is an interlocutory order and hence not revisable [Sethuraman Rajamanickam, 2009 Cr LJ 2247 (2248) : (2009) 5 SCC 153 : 2009 (2) Crimes 1 : (2009) 2 SCC (Cri) 627]. [s 91.28] Interference by Supreme Court.— Where the Trial Court and the High Court rejected an application for summoning certain documents, the Supreme Court would not interfere particularly when the Special Judge had held that the documents did not show that the prosecution case was improbable. [Om Prakash Sharma v Central Bureau of Investigation, AIR 2000 SC 2335 : 2000 Cr LJ 3478 (SC) : (2000) 5 SCC 679 : 2000 (2) Crimes 276.]

Where the challenge as to summoning order by two of the accused was dismissed by the High Court and the Supreme Court on a subsequent petition by appellant challenging summoning order, in appeal, declined to examine the facts to find out whether prima facie case was made out to issue a summons [Narendra Kumar Jain v State of Gujarat, AIR 1999 SC 3218 : 1999 Cr LJ 4075 : 2000 SCC (Cri) 85 : 1999 (4) Crimes 85.

1

See now Customs Act 52 of 1962.

End of Document

[s 92] Procedure as to letters and telegrams.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER VII PROCESSES TO COMPEL THE PRODUCTION OF THINGS > A.—Summons to Produce

The Code of Criminal Procedure, 1973 CHAPTER VII PROCESSES TO COMPEL THE PRODUCTION OF THINGS A.—Summons to Produce [s 92] Procedure as to letters and telegrams.— (1) If any document, parcel or thing in the custody of a postal or telegraph authority is, in the opinion of the District Magistrate, Chief Judicial Magistrate, Court of Session or High Court wanted for the purpose of any investigation, inquiry, trial or other proceeding under this Code, such Magistrate or court may require the postal or telegraph authority, as the case may be, to deliver the document, parcel or thing to such person as the Magistrate or court directs. (2) If any such document, parcel or thing is, in the opinion of any other Magistrate, whether Executive or Judicial, or of any Commissioner of Police or District Superintendent of Police, wanted for any such purpose, he may require the postal or telegraph authority, as the case may be, to cause search to be made for and to detain such document, parcel or thing pending the order of a District Magistrate, Chief Judicial Magistrate or court under sub-section (1). [s 92.1] Changes.— Section 92 corresponds to the old section 95 with some verbal alterations without any change in substance. [s 92.2] Conditions.— Section 92 has to be read along with section 91. A combined reading of the two sections leads to the conclusion that, in order to pass an order, two things must be satisfied: (1) that the production of the documents or things should be necessary or desirable for the purpose of investigation, trial or proceeding and (2) that they must be under the custody of the Postal or Telegraph authorities. Order relating to documents that are not in existence or that may be received by the Postal or Telegraph authorities is not tenable [Amar Singh v State, AIR 1965 Raj160 : 1965 (2) Cr LJ 408 : 1965 Raj LW 207]. An order under section 92(1) without stating that in the District Magistrate’s opinion the production of letters, parcels or money orders were necessary in connection with any investigation, inquiry, etc. would indicate that he had not applied his mind to the questions and such an order is bad—Conditions for applications of section 92 [Textile Traders, AIR 1959 All 337 : (1958) 28 AWR 837 : 1959 Cr LJ 668]. In Kailash Ch., infra, the defect was held cured by a subsequent affidavit by the District Magistrate that the documents were necessary for an investigation. The words “in the custody” apply to documents, which are in existence and already in the hands of the authorities concerned at the time of the order. An order under sub-section (1) should clearly specify the things to be delivered. So an order under section 92(1) on the authorities to deliver all “parcels, letter, etc. that are to come into the custody of the authorities in future is not legal. The use of “etcetra” is also bad as it should be clearly specified what things besides letters and parcels are to be delivered [Textiles AIR 1960 All 405]. An order under sub-section (2) directing the postal authorities to detain the entire mail of a person is not illegal. The words “document or thing” cover postal or money order [Kailash Ch., AIR 1960Pu 412 : 1960 Cr LJ 1134]. [s 92.3] Competence.—

Page 2 of 2 [s 92] Procedure as to letters and telegrams.— Order under section 92(1) cannot be passed by a Magistrate other than the Chief Judicial Magistrate or District Magistrate. [Om Prakash Bansal v State, 1969 Cr LJ 1190, 1192 (P&H) : 70 Punj LR 819 : ILR (1969) 1 Punj 593]. End of Document

[s 93] When search warrant may be issued.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER VII PROCESSES TO COMPEL THE PRODUCTION OF THINGS > B.—Search warrants

The Code of Criminal Procedure, 1973 CHAPTER VII PROCESSES TO COMPEL THE PRODUCTION OF THINGS B.—Search warrants [s 93] When search warrant may be issued.— (1) (a) Where any court has reason to believe that a person to whom a summons or order under section 91 or a requisition under sub-section (1) of section 92 has been, or might be, addressed, will not or would not produce the document or thing as required by such summons or requisition, or (b) where such document or thing is not known to the court to be in the possession of any person, or (c) where the court considers that the purposes of any inquiry, trial or other proceeding under this Code will be served by a general search or inspection, it may issue a search-warrant; and the person to whom such warrant is directed, may search or inspect in accordance therewith and the provisions hereinafter contained. (2) The court, may, if it thinks fit, specify in the warrant the particular place or part thereof to which only the search or inspection shall extend; and the person charged with the execution of such warrant shall then search or inspect only the place or part so specified. (3) Nothing contained in this section shall authorise any Magistrate other than a District Magistrate or Chief Judicial Magistrate to grant a warrant to search for a document, parcel or other thing in the custody of the postal or telegraph authority. [s 93.1] Changes.— Sub-section (1) corresponds to sub-section (1) of the old section 96 divided into clauses (a), (b) and (c). Subsection (2) corresponds to the old section 97 and sub-section (3) corresponds to sub-section (2) of the old section 96. [s 93.2] Scope and application of section 93.— The section is supplementary to sections 91 and 92, the object being to make provisions effective by issue of a search warrant. While an arrest is a deprivation of personal liberty, a search is an invasion of the sanctity and privacy of a citizen’s home. The power to issue search warrant being a drastic one is not to be lightly used and an unjustifiable or arbitrary use of it may lead to serious consequences causing loss of prestige or business to individuals and firms. Marten, J, pointed out that the general provisions in chapter 7 as regards search and entry “are based on the law of England where an Englishman’s house is said to be regarded as his castle” [Md Shah, AIR 1946 L 456, 458 : 48 Cr LJ 161]. There are well-defined limitations to the exercise of the power which must be used with great caution, and before the issue of a warrant, the court must be fully satisfied that there are sufficient materials to justify the strong measure. The term “Court” is used in sub-section (1) and so search warrant can be issued by a Magistrate only when he acts as a court and applies his judicial mind.

Page 2 of 8 [s 93] When search warrant may be issued.— [s 93.3] Search warrant under section 93 may be issued in three contingencies.— (1) where the court “has reason to believe” that a summons for production (under section 91 or section 92) will not be obeyed, or (2) where the “document or thing” is not known to be in possession of any person, or (3) where a “general search or inspection” is considered necessary for the purpose of trial or inquiry or other proceeding under the Code, whether pending or in contemplation. Cases covered by the second and third alternatives are not conditioned by the requirement of previous notice or summons in the first alternative and the non-compliance with it [Sharma, M P v Satish Chandra, 1954 Cr LJ 865 : 1954 SCR 1077 : AIR 1954 SC 300].

In the case under section 93 (1)(a), actual requisition or its possibility is necessary, but it is not necessary under (b) or (c) [Sharma M P v Satish Chandra, AIR 1954 SC 300 : 1954 Cr LJ 865].

Section 93 of the Code empowers a court for issuance of warrant of search. However, such issuance of search warrant can be made only in respect of the requirement and fulfillment of section 91 or section 92(1). The only other provision relating to warrant of search or the power of search by a Magistrate is provided under section 103 which states “any Magistrate may direct a search to be made in his presence of any place for the search of which he is competent to issue a search warrant” [Urmila Devi v Yudhvir Singh, 2013 (4) RCR (Criminal) 899 : JT 2013 (14) SC 262]. [s 93.4] Article 19 (Constitution of India).— A search does not infringe the right under Article 19(1)(f). It is only a temporary interference with the right to hold the premises searched and the articles seized for the limited purpose of investigation. The damage, if any, caused by such temporary interference, if found to be in excess of legal authority, is a matter for redress in other proceedings [Sharma, MP sup]. A power of search and seizure is an overriding power of the State for the protection of social security, and that power is necessarily regulated by law. Article 20(3) of the Constitution of India is not defeated by the provision for searches [Sharma, MP sup ante cited under section 91].

A Magistrate’s order of search of premises and seizure of articles found in the premises, without any application being made therefore and without giving any reasons for such order, is in breach of sections 93 and 94, which require application of the judicial mind. [s 93.5] Types of Search.— Section 93(1) contemplates—(i) search of a specific document, etc. under clause (a) and (b) or (ii) “general” search under clause (c) [Kuttan Pillai v Ramakrishanan, AIR 1980 SC 185 : 1980 Cr LJ 196 : (1980) 1 SCC 264]. [s 93.6] Stage.— Search warrant can be issued at the pre-inquiry stage [Clarke v Brojendra, (1912) ILR 39 Cal 953 (PC) (The heading cases under section 96–97 of the Code of 1898). But section 93(1) (c) does not permit a general search in aid of a police investigation [Hoshide, AIR 1948 C 97]. [s 93.7] Judicial act.— Issue of a search warrant is a judicial act and it ought only to be issued after judicial enquiry and upon proper materials [Md. Jackariah, 15 C 109,120,134; Hoshide, 44 Cal WN 82,88 : AIR 1940 Cal 97]. The power is a necessary one, but should be exercised only if, on a full appreciation of the gravity of the step, the court concludes that it is really necessary for the ends of justice [Mulchand, 12 Cr LJ 175; Md. Jackariah, 15 C 109, 120, 134; IT Officer, AIR 1950 P&H 306 : 1950 Cr LJ 1273 : [1950] 18 ITR 688 (P&H)]. It is a serious matter and the application should not be disposed of in a mechanical way by a laconic order. A clear application of mind by the Magistrate must be discernible in the order giving reasons which swayed his discretion [VS Kuttan Pillai, V S v Ramakrishanan, AIR 1980 SC 185 : (1980) 1 SCJ 479 : 1980 Cr LJ 196 : (1980) 1 SCC 264; Shiva Dayal v Sohanlal, AIR 1970 P&H 468 : 1970 Cr LJ 1517 : 72 Punj LR 348]. Search warrants are exceedingly arbitrary in character and very great, particularity is justly required by law in cases where they are authorised, before the privacy of a man’s premises is allowed to be invaded. The expression “reason to believe” is entirely different from “cause to suspect”. The former connotes a great deal more than is conveyed by the latter. The officer issuing the warrant has to bring his judicial mind to bear upon the question. A warrant saying that there is cause to suspect and is no ground for issue of warrant [Walvekar, 30 Cal WN 713, 717 : 53 C 718 (a cause

Page 3 of 8 [s 93] When search warrant may be issued.— under section 46 of the Calcutta Police Act, 4 of 1866 where also the words used are “reason to believe”)]. A general search warrant [under clause (c)] cannot be issued automatically or for the bare statement of the police that a search is necessary. It can only be issued when the Magistrate acting as a court applies his judicial mind and “considers” that the purposes of an inquiry or trial or other proceeding (and not investigation by the police) would be served. The Magistrate must satisfy himself that the issue of the warrant is necessary and that the requirements of law are present [Honble, 44 Cal WN 82; Pagla Baba, AIR 1957 Ori 130 : 1957 Cr LJ 769 : 23 (1957) CLT 88]. [s 93.8] Searches under the Code.— Searches under the Code are of three kinds (1) under section 93 or section 94; (2) by Magistrate under section 103; (3) by a police officer under section 165. Search warrants can also be issued under special laws to which the provisions in the Code relating to searches apply. Provisions as to warrants of arrest apply to search warrants (section 99). A Magistrate issuing a search warrant in view of a proceeding about to be taken is a “Court” within section 96 (now section 93) [Clarke, 39 C 954 Indian Penal Code, 1860]. Person against whom search warrant is issued is entitled to a copy of the order as also the application of the police on which the order is based, but not the report of the police containing the materials collected in investigation [Kalinga Tubes Ltd, AIR 1935 Ori 49].

A court having jurisdiction over the subjectmatter of the proceeding (pending or contemplated) may issue a search warrant for search at any place in India in the same way as a warrant of arrest. It may be sent for execution outside jurisdiction under section 78 (see section 99) or it may be directed to a police officer under section 79 for execution outside the jurisdiction of the court issuing it.

So far as can be gathered from the judgment, on an application by the Inspector of the Special Police Establishment, New Delhi, warrants for general search at Cuttack were issued in the name of the Delhi Inspector (who conducted the search) by the Additional District Magistrate, Cuttack, to assist the Special Police Establishment, New Delhi, in an investigation into the alleged cheating of the Ministry of Commerce, Government of India. On the facts, it was held that there were sufficient grounds for the issue of the warrants [Kalinga Tubes Ltd, AIR 1953 Ori 153]. Search warrant under section 1722 of Sea Customs Act does not offend Article 20(3).2 Constitution of India. [Collector of Customs, AIR 1958 Cal 682 : 1958 Cr LJ 1469 : (1959) ILR 2 Cal 442]; nor issue of notice under section 171-A.2 Sea Customs Act [Shanker Lal, AIR 1960 Mad 225 : 1960 Cr LJ 625 : (1960) ILR Madras 267 : 1960 73 LW 24; Basanta, AIR 1961 Cal 86 : 1961 Cr LJ 237 : (1961) ILR 1 Cal 919]. When search warrant is issued under section 25(3), Arms Act, 1878, grounds to belief should be recorded [Sangam, 15 A 129; Pagla Baba, AIR 1957 Ori 130 : 1957 Cr LJ 769 : 23 (1957) CLT 88].

Power of police to search without warrant from a Magistrate (see section 165). Power of Calcutta or Bombay police to search (see notes to section 165, post). [s 93.9] Court.— “Court” and “Magistrate” are generally convertible terms. A “Magistrate” is a court when he acts in a judicial capacity [Clarke, 39 C 953; see ante, section 7, under heading Court]. [s 93.10] Person whether it includes accused.— The Supreme Court has held in the case of Shyamlal, AIR 1965 SC 1251 that section 94 (now section 91) does not apply to an accused person. Where it is intended to require an accused person to produce a document or a thing, a summons under that section cannot therefore be issued. Necessarily a warrant of search cannot be issued under clauses (a) and (b) of sub-section (1) of this section. But clause (c) can be used. [See also notes to section 91, ante]. The issue of a search warrant is normally the judicial function of the Magistrate. A search warrant is addressed generally to a police officer. Neither the search nor the seizure is act of the occupier of searched premises. They are acts of another to which he is obliged to submit and are therefore not his testimonial acts in any sense and do not infringe Aricle 20(3). [Sharma, M P v Statish Chandra, 1954 SCR 1077 : AIR 1954 SC 300 : 1954 Cr LJ 868]. When such a general search warrant under clause (c) is issued, in execution of it, the premises even in possession of the accused can be searched and documents found therein can be seized irrespective of the fact that the documents may contain some statements made by the accused

Page 4 of 8 [s 93] When search warrant may be issued.— upon his personal knowledge and which when proved may incriminate the accused. Such a search and seizure cannot be said to compel the accused to incriminate himself. The power of the court under section 93(1) (c) cannot be cut down by importing into it some of the requirements of section 93(1) (b) Section 93(1)(c) also comprehends an inspection meaning, thereby inspection and general search of a place and seizure of documents or things. In this case of criminal breach of trust in respect of funds of public institution by officebearers, general search warrant was justified [V S Kuttan Pillai v Ramakrishana, AIR 1980 SC 185 : (1980) 1 SCJ 479 : 1980 Cr LJ 196 : (1980) 1 SCC 264]. [s 93.11] Accused.— Search warrant issued against the accused contravening Article 20(3) of the Constitution of India may be quashed. [Bimal Kanti Ghosh v Chandra Sekhar Rao, (1986) Cr LJ 689 : (1985) 60 Cut LT 461 Orissa].

Issuance of general search warrant in the name of unknown person is liable to be quashed. [Pramod Kumar Bhandari v The State, 1997 Cr LJ 1015 (Del) : (1996) 64 DLT 732 : 1997 (1) Arbi LR 186 : 66 Punj LR 276]. [s 93.12] Unconstitutional Search.— See—ITO v Sethi Brothers, AIR 1970 SC 292 : (1969) 2 SCC 324; Nawal Kishore Thakur v State of Punjab, AIR 1964 Punj 269 FB : 1964 (1) Cr LJ 696]. [s 93.13] Conditions for issue of search warrant and its incidents.— It is essential that the Magistrate alone (and not the person directed to make search) should determine whether warrant is necessary [Syed Hossain, 8 WR 74]. He cannot act simply on the opinion of a police officer, but must form his own independent opinion on the materials placed before him [Jagannath, 24 Cal WN 405, 408 : 57 Ind. Cas. 93; Hoshide, 44 Cal WN 82 : AIR 1940 Cal 97; Pratt, 24 Cal WN 403,405 : 55 Ind. Cas. 473]. In satisfying himself about the existence of sufficient basis for issue of search warrant, the Magistrate is not confined to a consideration of what would be strictly evidence under the Evidence Act. While warrant is not to be issued merely because a highly placed police officer asked for it, it is not as though his statement is to be totally disregarded [Kalinga Tubes Ltd, AIR 1953 Orissa 153, 159]. A definite order for search is to be recorded under section 93 or section 94. Endorsement of “approved” on the application of the police and search on it without any warrant is illegal and amounts to trespass [Nidhi, 59 Cal WN 649].

Reading sections 91 and 93 with Schedule 2, No. 10, the only safeguards are: (i) the documents or thing must be distinctly specified; (ii) it must be necessary for the purpose of the enquiry, and (iii) the Magistrate must exercise a judicial discretion and should not make an order unless the materials before him and justify it [Md Jackariah, 15 C 109, 141]. If there is a complaint, a search warrant without examining the complainant is illegal [Shivagurunatha, 1910 MWN 818 : 7 Ind. Cas. 895] or at least irregular. If there is information, the court should, if feasible, examine the informant on oath [Mulchand, 12 Cr LJ 175]. Though there is no express provision to make a record or keep notes of this examination, it has been repeatedly pointed out by the High Court that some record ought to be kept [Jagannath, 24 Cal WN 405, 408 : 21 Cr LJ 573].

The court should first enquire whether a summon would not have the desired effect [Mulchand, 8 ALJ 517, 522]. Issue of a search warrant without such enquiry [Iyavoo,18 Cr LJ 837; Piyarelal, 17 Cr LJ 60] or without first issuing a summons [Ghose J, in Md. Jackariah, 15 C 109, 134] is illegal. Magistrate must himself be satisfied that the thing or document would not be produced if merely a summons is issued, but recording of reason of such belief is not obligatory [Manicklal, 56 Cal WN 551 : AIR 1953 C 341 : 1953 Cr LJ 783; Kalinga Tubes Ltd, AIR 1953 Orissa 153,159 : Kanailal, AIR 1958 C 128 : 1958 Cr LJ 368]. When there is no allegation in casediaries that weapons were concerned in the case or that they would not be produced if summoned, issue of warrant does not come under clause (a) of section 93(1) [Pagla Baba, sup]. It should, however, be noted that the requirement of previous notice or summons or the non-compliance with it is prescribed only for the first alternative of sub-section (1) and it does not apply to the second or third, i.e., search for a document or thing not known to be in the possession of any one or a “general search” [Sharma, MP v Satish Chandra, AIR 1954 SC 300, 306 ante : 1954 Cr LJ 868]. [s 93.14] Reasons.— Magistrate is required to record reasons before the issue of search warrants. Illegal order of search and seizure would vitiate seizure of articles [Shyam M Sachdev v The State, 1991 Cr LJ 300 (Del) : (1990) 42 DLT 299 (Y K Sabharwal, J.)].

Page 5 of 8 [s 93] When search warrant may be issued.— [s 93.15] Application.— Application for search warrant should disclose the offence committed though it may not contain particulars [Ajay, 33 Cal WN 719]. Warrants must be in writing and contain all matters required by law [Subramania, 38 Cr LJ 799]. The proper form should be used [Pokka, 48 Cr LJ 644]. Faulty description of premises is not fatal, if it is otherwise sufficient for purpose of identification [Govind, 42 Cr LJ 32; Abbasbhai, 50 B 344; Subbier, AIR 1935 M 98].

Search warrant confers authority to seize and bring things to court [Md. Jackariah, 15 C 199]. But a Magistrate cannot order the police to take possession of articles without issue of any search warrant [Hari, 38 C 68].

Application for release of documents and things should be made before the Magistrate before which the case is pending and not by a writ petition [Sant Das Maheshwari v Babu Ram Jodoum, AIR 1969 All 436 : 1969 Cr LJ 1097 : 1968 All LJ 396]. [s 93.16] Inquiry, trial or other proceedings.— Under clause (c) warrant for, what are called, general searches may be issued for the purpose of any inquiry or trial or other proceeding before the court (pending or anticipatory; see next heading). The word “investigation” which appears in section 98 is not used in section 93 and no search warrant can therefore be issued at the instance of the police merely to help them in an investigation by the police for collection of evidence or by the Customs authorities [Hoshide, 44 Cal WN 82 : AIR 1940 C 97; Mamsa, AIR 1937 R 206; see Pratt, 24 Cal WN 403 : 55 Ind. Cas. 473 (see the observations of Chaudhuri, J); Jagannath, 24 Cal WN 405 : 57 Ind. Cas. 93], or for an inquiry by customs officers [Tahir, AIR 1934 Bom 104 : 1934 (36) BomLR 96 : 149 Ind. Cas. 1021]. The absence of the word “investigation” indicates the requirement of a higher and stricter standard for general searches [Kalinga Tubes Ltd, AIR 1953 Ori 153]. [s 93.17] When can power under section 93 be exercised.— A search warrant may under clause (c) of section 93(1) be issued not only when a proceeding is pending before a court but also at any time in view of an enquiry about to be made and before proceedings are initiated [Clarke, 39 C 953 Indian Penal Code, 1860; Hoshide, 44 Cal WN 82 : AIR 1940 Cal 97; Md. Tahir, AIR 1934 Bom 104 : 1934 (36) BomLR 96 : 149 Ind. Cas. 1021; Mamsa, AIR 1937 Rangoon 206 : 170 Ind. Cas. 870; Kalinga Tubes Ltd, sup]. The earlier cases [e.g. Tirupati, 13 M 18; Harilal, 22 R 949; Rash Behary, 35 C 1076] in so far as they held otherwise have been superseded by Clarke, sup “Court” and “Magistrate” are in section 91 or 93 convertible terms [Clarke sup]. In case ofa search warrant to an Inspector, Special Police, Delhi, to carry on search in Orissa for certain documents and correspondence, it is not open to challenge on the ground that it had been applied for before any investigation under chapter 14 (now chapter 10) had started [Kalinga Tubes Ltd, sup]. Although warrant may be issued in an anticipated enquiry, the court must apply its judicial mind on sufficient materials [Pagala Baba, AIR 1957 Orissa 130 : 1957 Cr LJ 769 : 23 (1957) CLT 88]. [s 93.18] When can there be general search and not search for a specific thing or document.— Clauses (a) and (b) of sub-section (1) refer to search for the production of a specified document or thing and relate back to sections 94 and 95 (now sections 91 and 92) (see Sharma, M P v Satish Sharma, AIR 1954 SC 300 : 1954 Cr LJ 865, ante, but clause (c) apparently does not. It is independent of those sections [Md. Tahir, AIR 1934 B 104 : 35 Cr LJ 1024], and as clause (c) clearly permits a “general search” on the chance of finding something material if the court considers that such a search would serve the purpose of an inquiry, trial or other proceeding best [Clarke,39 C 953 PC]. It indicates that a general search may be ordered. It is therefore not necessary under clause (c) that the warrant should specify the article or thing required or that the search should be restricted to a specified place or house. But under section 93(2) the court may restrict the warrant in that way.

If a Magistrate recites in the order that (a) he had considered the materials placed before him, (b) he had perused the petition and (c) he was satisfied that the documents would be required for the investigation, requirement of clause (c), was satisfied [Hasimara Industries v Co Law Board, 79 Cal WN 865 : 1976 Cr LJ (50) (Cal) : ILR (1975) 1 Cal 676]. It may be submitted that it may not be sufficient in view of the decision in V S Kuttan Pillai v Ramakrishanan, AIR 1980 SC 185 : 1980 Cr LJ 196 : (1980) 1 SCC 264 which insists on the Magistrate giving reasons which swayed his discretion.

Page 6 of 8 [s 93] When search warrant may be issued.— Special judge appointed under Criminal Law (Amend.) Act, 1952 has jurisdiction to issue search warrant under section 93(1)(c) [Sonapur Tea Co Pvt Ltd v CBI, 1977 Cr LJ 151 (Cal) : 1976 Cal HN 832].

A general search means a search not in respect of specific documents or things but a roving inquiry for the purpose of discovering documents or things which might involve persons in criminal liability [Paresh, AIR 1927 C 93 : 27 Cr LJ 1195]. It is not necessary, however, that the search should be confined to a single document or thing [Kalinga Tubes Ltd AIR 1953 Orissa 153, 155]. As to cases of general search, see Hoshide, 44 Cal WN 82 : AIR 1940 Cal 97; Pratt, AIR 1920 C 43; Jagannath, 24 Cal WN 405 : 57 Ind. Cas. 93; Tahir, AIR 1934 Bom 104 : 1934 (36) BomLR 96 : 149 Ind. Cas. 1021; Kalinga Tubes Ltd, sup].

The word “inspect” applies only to locality or place and not to “document” or other thing. Section 97 [now section 93(2)] confirms this [Md. Jackariah, 15 C 109, 124]. The Magistrate issuing the warrant may himself conduct the search [Ganeshi, 1884 AWN 213], or may direct a search in his presence (section 103). [s 93.19] Hire Purchase Agreement.— In a case of hirepurchase agreement, the complainant merely alleged that the petitioner had obtained his signatures on a blank stamp paper and blank forms and had used these documents against him. The obligations were not substantiated by evidence, and no offence was disclosed. The complaint and order for search were held liable to be quashed. Prakash Chand v Manik Bhagwat, 2006 Cr LJ 3707 (3709–10) (Bom) : 2006 (2) Bom CR (Cri) 282. [s 93.20] Inspection of things seized after search.— See Notes to section 91ante. [s 93.21] Remedy for Illegal Search.— Illegality of search does not affect the admissibility of the thing found. [Radha Krishan v State of UP, AIR 1963 SC 822 : 1963 (1) Cr LJ 809]. But resistance to it would be legal and there would be a right of self- defence within the limits laid down in sections 96–106 of Indian Penal Code, 1860. [Shyam Lal Sharma v State of MP, AIR 1972 SC 886 : 1972 Cr LJ 638 : (1972) 1 SCC 764; State of UP v Ram Sandi, (1969) Cr LJ 952 (All) : 1968 All Cr R 34 : 1968 All WR 39] can be claimedNidhi v State, (1959) 59 Cal WN 649].

In India, as in England, where the test of admissibility of evidence lies in relevancy, unless there is an express or necessarily implied prohibition in the Constitution of India or other law evidence obtained as a result of illegal search or seizure is not liable to be shut out [Pooran Mal v Director of Inspection (Investigation), AIR 1974 SC 348 : (1974) 1 SCC 345].

An illicit article seized from the person of an accused, during search conducted in violation of the safeguards provided in section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985, cannot by itself be used as admissible evidence of proof of unlawful possession of the contraband on the accused. Any other material/article recovered during that search may, however, be relied upon by the prosecution in other/independent proceedings against an accused notwithstanding the recovery of that material during an illegal search and its admissibility would depend upon the relevancy of that material and the facts and circumstances of that case [State of Punjab v Baldev Singh, AIR 1999 SC 2378 : 1999 Cr LJ 3672 (SC)]. [s 93.22] Cases not within section 93.— Issue of search warrant in a complaint under sections 482 and 486 of Indian Penal Code, 1860 is a gross perversion of law [Moideen, 17 Cr LJ 543; Piyarelal, 17 Cr LJ 60; Raja Singh, AIR 1935 section 107], or for seizure of bus for breach of hirepurchase agreement [Hrishikesh, AIR 1939 C 45]. Search warrant cannot be addressed to an accused on trial and he cannot be punished for non-production [RajCh. 12 Cr LJ 98]. Search warrant under clause (a) and clause (c) of sub-section (1) for documents or things known to be in possession of accused is not legal [Shiv Dayal v Sohan Lal Bassar, AIR 1970 P&H 468 : 1970 Cr LJ 1517 : 72 Punj LR 348].

Search warrant against incometax officer for seizure of return, statement etc. is illegal in view of section 54 I.T. Act, 43 of 1961) [IT Officer, AIR 1950 P&H 306 FB : 1950 Cr LJ 1273]. When the police officer was conducting

Page 7 of 8 [s 93] When search warrant may be issued.— an investigation under section 156 and not an inquiry, the issue of a general warrant, i.e., not for the search of a particular document or things is illegal under clause (c) of section 93(1) [Mamsa, AIR 1937 Rangoon 206 : 170 Ind. Cas. 870]. Issue of warrant to produce a woman on the complaint of her husband that she was confined by her father is illegal [Bisu, 11 Cal WN 836]. [s 93.23] Cases within section 93.— Search warrant may be issued for offence under section 7 of Copyright Act [Kishori, 47 C 164]. [s 93.24] Sub-section (3)—Search warrant.— Search warrant by any Magistrate not empowered is void [section 461 (b)]. If any document or thing in the custody of the Postal or Telegraph authorities is required, such Magistrate or the court specified in section 92 must proceed in the manner indicated in section 92(2). [s 93.25] Illegal Search.— Things seized under an illegal search warrant may nevertheless be used as evidence [Allahabad, 35 A 358; Abbasbhai, 27 Cr LJ 503; Mamsa, AIR 1937 Rangoon 206 : 170 Ind. Cas. 870; see post notes to section 100 : “Irregular or illegal, search”] though doubt may be a raised whether the things said to have been found were actually found [Mamsa sup]. Lord Goddard, observed: “The test to be applied in considering whether evidence is admissible and whether it is relevant to the matter in issue. If it is, it is admissible and the court is not concerned with how the evidence was obtained” [Kuruma, (1955) 1 All ER 236 : (1955) AC 197, 203]. Similarly, things seized under an illegal search may nevertheless be used as evidence [Allahabad, 35 A 358; Abbasbhai, 27 Cr LJ 503; Mamtazuddin, 1947 (1) Cal 329; Indu, AIR 1955 Cal 129 : 1955 Cr LJ 1169; Ramrao, AIR 1951 Nag 237 : [1951] ILR Nag 349]. The illegality or irregularity of a search does not of itself vitiate the trial [Ahmad, 46 A 86; Ruremal, 31 Cr LJ 35; Kutru, 47 A 575], unless it is shown that prejudice is caused Bai Radha v State of Gujarat, AIR 1970 SC 1396 : 1970 Cr LJ 1279—Case on Suppression of Immoral Traffic in Women and Girls Act, 1956; see also Notes to section 100 “Admissibility of Find in Irregular Or Illegal Search” at p 96 of old end. See also above remedies for illegal search. [s 93.26] Search under Customs Act, Foreign Exchange Regulation, Act, etc.— Unlike section 93 (in which the words used are “Court has reason to believe”) the Magistrate, when issuing search warrant under section 172 of Sea Customs Act, is to be guided, by the “belief” of the customs authorities, though he may prevent under harassment where it can be seen that the belief is not entertained by the customs officer or his action mala fide. The Magistrate is certainly entitled to satisfy himself about the “belief” of the customs officer, but is not required to make up his mind independently of that belief. Goods and documents seized by issue of warrant must be produced before the Magistrate who may keep control over by them. Where there has been indiscriminate seizure, the Magistrate may find it necessary to have the goods or documents scrutinised under his control, so that goods or documents not really subject to the Sea Customs Act are not detained for an unduly long period. Only in a suitable and clear case may the Magistrate amend the warrant dispensing with the production of goods or documents before him, but he has discretion to keep the control of the goods and documents in himself [Md. Serajuddin RC Mishra, AIR 1962 SC 759 : 1962 (1) Cr LJ 692 : 1962 Supp 1, SCR 545 : (1963) 1 SCJ 56 (Srivastava, AIR 1956 C 253, apprd; Calcutta Motor AIR 1956 C 258 overruled)]. After seizure, the Magistrate may direct delivery of documents to the Income Tax authorities [Ganpatrai, AIR 1960 Cal 572 : [1961] 42 ITR 107 (Cal)]. Seizure of documents by warrant issued under section 172 of Sea Customs Act and subsequent petition by IT Officer under section 131 of IT Act, 1961 for inspection and custody—Extent of discretionary power of Magistrate to grant it—Magistrate should ensure that documents would be treated as confidential under section 137 of IT Act—Whether order was passed under O XI, rule 10 of Code of Civil Procedure, 1908? [Premsukhdas Sitraram v The State, AIR 1964 Cal 391 : 1964 (2) Cr LJ 285 : 68 Cal WN 516]. The burden of establishing unlawful importation is on the customs authorities [Mangala Prasad v V J Manerikar, AIR 1965 Cal 507 : 1965 (2) Cr LJ 477 : 68 Cal WN 383, see also Kishanlal Agarwalla v Collector of Land Customs, AIR 1967 Cal 80 : 1967 Cr LJ 174 : 69 Cal WN 864].

In Foreign Exchange Regulation Act, 1947 special procedure for search has been enacted in sections 19-A to 19-J. It has been provided inter alia by section 19-J that notwithstanding anything contained in this Code, any police officer not below the rank of Inspector of Police or any other officer of Government, State or Central, authorized by Central Government may enter any public place and search and arrest without warrant any person found therein and reasonably suspected of having committed or of committing or of being about to commit a contravention of section 4(1) of the Foreign Exchange Regulation Act. Here also the provisions of this Code shall, subject to the provision of section 19-J, apply, so far as may be, to any entry, search or warrant made under section 19. What is to be done with the articles seized does not strictly come within the expression

Page 8 of 8 [s 93] When search warrant may be issued.— “searches”. It is dealt with in section 19-A (now section 19-G) of the Act [Nilratan, AIR 1965 SC 1 : (1965) 1 SCJ 1]. Where search warrant under Foreign Exchange Regulation Act was issued without any representation in writing and without production of authorisation from the Director of Enforcement before him, it was illegal [Shyama Charan, AIR 1962 Tri 50]. [s 93.27] Search of Gaming House in Calcutta.— If upon information on oath, and after such inquiry as he may think necessary, the Commissioner of Police or a Presidency (Metropolitan) Magistrate has reason to believe that any house, room or place is used as a common gaming house, he may grant warrant to police officers to enter gaming house for search and seizure [see section 46 Calcutta Police Act, for the meaning of, “reasons to believe” see Walvekar, 30 Cal WN 713 : 96 Ind. Cas. 264 ante].

2

See now section 105, Customs Act, 52 of 1962.

End of Document

[s 94] Search of place suspected to contain stolen property, forged documents, etc.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER VII PROCESSES TO COMPEL THE PRODUCTION OF THINGS > B.—Search warrants

The Code of Criminal Procedure, 1973 CHAPTER VII PROCESSES TO COMPEL THE PRODUCTION OF THINGS B.—Search warrants [s 94] Search of place suspected to contain stolen property, forged documents, etc.— (1) If a District Magistrate, Sub-divisional Magistrate or Magistrate of the first class, upon information and after such inquiry as he thinks necessary, has reason to believe that any place is used for the deposit or sale of stolen property, or for the deposit, sale or production of any objectionable article to which this section applies, or that any such objectionable article is deposited in any place, he may by warrant authorise any police officer above the rank of a constable— (a) to enter, with such assistance as may be required, such place, (b) to search the same in the manner specified in the warrant, (c) to take possession of any property or article therein found which he reasonably suspects to be stolen property or objectionable article to which this section applies, (d) to convey such property or article before a Magistrate, or to guard the same on the spot until the offender is taken before a Magistrate, or otherwise to dispose of it in some place of safety, (e) to take into custody and carry before a Magistrate every person found in such place who appears to have been privy to the deposit, sale or production of any such property or article knowing or having reasonable cause to suspect it to be stolen property or, as the case may be, objectionable article to which this section applies. (2) The objectionable articles to which this section applies are— (a) counterfeit coin; (b) pieces of metal made in contravention of the Metal Tokens Act, 1889 (1 of 1889)3, or brought into India in contravention of any notification for the time being in force under section 11 of the Customs Act, 1962 (52 of 1962); (c) counterfeit currency note; counterfeit stamps; (d) forged documents; (e) false seals; (f)

obscene objects referred to in section 292 of the Indian Penal Code (45 of 1860);

Page 2 of 3 [s 94] Search of place suspected to contain stolen property, forged documents, etc.— (g) instruments or materials used for the production of any of the articles mentioned in clauses (a) to (f). [s 94.1] Changes.— Section 94 corresponds to the old section 98 shortened and simplified by redrafting. Objectionable articles have been enumerated in sub-section (2) and “counterfeit currency note” have been newly added. [s 94.2] Scope and application of section 94.— The pre-existence of a proceeding against a person is not necessary for the issue of a warrant [Clarke, 39 C 953 Indian Penal Code, 1860, ante.]. As to the principles and conditions relating to issue of search warrant, see notes to section 39. If any Magistrate, not empowered, issues a warrant erroneously in good faith, his proceedings will not be set aside merely on that ground [section 460 (a)]. Form of warrant (Schedule 2, No 11). The issue of a search warrant without any allegation or information, which a Magistrate believes that a particular place is used for deposit or sale of stolen property etc., is illegal [Amina, 61 Cal WN 298 : 1957 Cr LJ 669 : (1958) ILR 1 Cal 501]. The person who can execute the warrant is the officer named in it. It cannot be endorsed to another officer of the same rank [Thavarmal, 53 B 367—Contra :Mithu, 10 Cr LJ 3]. Search under the section without warrant is illegal [Bajrang, 38 C 304; see however Nirmal, 42 A 67, 68]. Before issuing search warrant, the Magistrate must have “reason to believe” that the place is used for the purposes mentioned in the section, and the exercise of the powers must be guided by the considerations mentioned therein [Yellappachari v State of Mysore, 1974 Cr LJ 878 (Kant) : 1974 (1) Kant LJ 152 : 1974 Mad LJ (Cri) 302].

“Stolen property” (section 410 Indian Penal Code, 1860); “Forged document” (sections 470, 463 and 464 Indian Penal Code, 1860); “Counterfeit” (section 28, Indian Penal Code, 1860); “Coin” (section 230, Indian Penal Code, 1860); “Metal” (see section 3, Act 1 of 1889).

Power of police to search (section 165), Power of police in Calcutta and Bombay to search (see notes to section 165 post). [s 94.3] Issuance of search warrant.— Section 94 of Code of Criminal Procedure, 1973 requires a Magistrate, before issuance of search warrant, to conduct an enquiry before he can have reasons to believe that the property in respect of which the search warrant is sought to be issued is a stolen property. The word “inquiry” is followed by impression as he thinks necessary [Dr SN Chaudhary v State of WB, 1998 Cr LJ 928 (Cal) : 1998 (1) Cal HN 185 : 1988 (1) All CrLR 739].

Relief in quashing of proceedings when the dispute between parties is purely of civil nature and the petitioner does not want the quashing of order of the Sessions Judge confirming the order of the Magistrate giving possession of vehicle to the party, the High Court is not the proper forum for any relief in such circumstances. [Subail Chandra Samal v Sailesh Kumar Pradhan, 1999 Cr LJ 2416 (Ori)].

[s 94.4] Rights of parties.— Section 94 has nothing to do with the rights of the parties. The only question to be considered is whether the property in respect of which a search warrant is sought is prima facie a stolen property or whether there are good grounds to believe that it is a stolen property. The learned Sessions Judge has not addressed himself to that question at all. The sine qua non for issuing the search warrant and production of the property is that the Magistrate must have reason to believe that the property is stolen property. Since there was no such findings, the order cannot be sustained. Lorry of which possession had been taken by financiers was subject matter of hire purchase. Question whether the financiers had right to seize is irrelevant. Question is whether it was stolen property? [Dinesh Auto Finance v State of AP, 1988 Cr LJ 1876 : 1987 (2) Andh LT 918 : 1988 (1) Crimes 511 : 1987 APLJ (Cri) 259 (AP)].

The proceedings of an application under section 94 of the Code of 1973 cannot be termed as an inquiry referred to in section 452 of the Code of 1973 as the inquiry or trial contemplated under section 452 is

Page 3 of 3 [s 94] Search of place suspected to contain stolen property, forged documents, etc.— completely different which involves an adjudication on the allegation of commission of an offence [HDFC Bank Ltd v State of Maharashtra, 2009 Cr LJ 901 (Bom) : 2009 (4) MhLJ 394].

3

Now see the Coinage Act, 2011 (11 of 2011).

End of Document

[s 95] Power to declare certain publications forfeited, and to issue searchwarrants for the same.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER VII PROCESSES TO COMPEL THE PRODUCTION OF THINGS > B.—Search warrants

The Code of Criminal Procedure, 1973 CHAPTER VII PROCESSES TO COMPEL THE PRODUCTION OF THINGS B.—Search warrants [s 95] Power to declare certain publications forfeited, and to issue searchwarrants for the same.— (1) Where— (a) any newspaper, or book, or (b) any document, wherever printed, appears to the State Government to contain any matter the publication of which is punishable under section 124A or section 153A or section 153B or section 292 or section 293 or section 295A of the Indian Penal Code (45 of 1860), the State Government may, by notification, stating the grounds of its opinion, declare every copy of the issue of the newspaper containing such matter, and every copy of such book or other document to be forfeited to Government, and thereupon any police officer may seize the same wherever found in India and any Magistrate may by warrant authorise any police officer not below the rank of sub-inspector to enter upon and search for the same in any premises where any copy of such issue or any such book or other document may be or may be reasonably suspected to be. (2) In this section and in section 96— (a) “newspaper” and “book” have the same meaning as in the Press and Registration of Books Act, 1867 (25 of 1867); (b) “document” includes any painting, drawing or photograph, or other visible representation. (3) No order passed or action taken under this section shall be called in question in any court otherwise than in accordance with the provisions of section 96. [s 95.1] Changes.— (1) Sub-sections (1) and (2) correspond to the old section 99-A redrafted and shortened without any change in substance except inclusion of the offences under section 153-B (imputation prejudicial to national integration) and sections 292 and 293 (absence of books and objects).

(2) Sub-section (3) corresponds to the old section 99-G. [s 95.2] Scope and application of section 95.—

Page 2 of 7 [s 95] Power to declare certain publications forfeited, and to issue search-warrants for the same.— Sections 95 and 96 were inserted in the Code of 1898 as sections 99A—99G by the Press Law Repeal and Amendment Act, 14 of 1922 and subsequently amended by the CrPC (3rd Amendment) Act, 36 of 1926 and Criminal Law Amendment Act, 25 of 1927. Section 99A (now section 95) re-enacted section 12 of the repealed Press Act, 1 of 1910 with modification. The section is conceived in the interests of public order or morality or decency, etc., and the restriction placed is a reasonable one and is not hit by Article 19 of the Constitution of India. [Veerabrahmam, AIR 1959 AP 572 : 1959 Cr LJ 1280].

The requirement of passing an order of forfeiture of a book presupposes that the book contains any matter, the publication of which is punishable under sections 124-A or 153-A or 153-B or 292 or 293 or 295A of the Indian Penal Code, 1860 for the State Government to declare that every copy of such book be forfeited to the Government. In other words, the power can only be exercised and the notification can only be issued if the Government forms an opinion that the publication contains matter which is in an offence under any of the sections of the Indian Penal Code, 1860 [Sangharaj Damodar Rupawate v Nitin Godre, 2007 Cr LJ 3860 (3883) (Bom-FB) : 2007 (4) Mah LJ 461 (Bom) : 2008 (1) Crimes 258].

Declaration of forfeiture of book under section 95 does not by itself create criminal offence as it is only preventive in nature [R V Bhasin v State of Maharashtra, 2012 Cr LJ 1375 (Bom) (FB) : 2010 (112) BOMLR 154]. Where baseless and inflammatory allegations made in a book were brought to the knowledge of Government by eminent personalities it would not amount to abdication by State of its functions. Hence notification for forfeiture issued by Government cannot be said to be mala fide or without application of mind [Barejar Ramchandrappa v State, 2007 Cr LJ 2933 (SC) : (2007) 5 SCC 11 : (2007) 2 SCC (Cri) 427].

Section 95 is a preventive measure, no prior notice or hearing is contemplated before taking action under this section [Piara Singh Bhaniara v State of Punjab, 2009 (1) Punj LR 766; see also RV Bhasin v State of Maharashtra, 2012 Cr LJ 1375 (Bom) (FB) : 2010 (112) BOMLR 154 (section 95 does not contemplate predecisional hearing)].

Section 95 and section 96 of the Code when read together are clearly preventive in nature and are designed to pre-empt any disturbance to public order. Section 95 does not by itself create a criminal offence and the reference to the various sections of the Indian Penal Code are merely descriptive of the kind of offences which need to be prevented by a declaration under section 95. It is true that a forfeiture of a newspaper or book or a document is a serious encroachment on the right of a citizen, but if forfeiture is called for in the public interest, it must without a doubt have pre-eminence over any individual interest [Baragur Ramachandrappa v State of Karnataka, (2007) 5 SCC 11 : 2007 Cr LJ 2933 (SC) : [2007] 5 SCR 1086].

The power to forfeit a newspaper, book or document is a drastic power in as much as it not only has a direct impact upon the due exercise of the cherished right of freedom of speech and expression as envisaged in Article 19(1)(a) of the Constitution of India, it also clothes a police officer to seize the infringing copies of the book, document or newspaper and to search places where they are reasonably suspected to be found, again impinging upon the right of privacy. Therefore, the provision has to be construed strictly and exercise of power under it has to be in the manner and according to the procedure laid down therein [State of Maharashtra v Sangharaj Damodar Rupawate, 2010 Cr LJ 4290 (4298) (SC) : [2010] 8 SCR 328 : (2010) 7 SCC 398]. [s 95.3] Condition of validity.— The triple facets of valid order are : (i) that the book or documents contains any matter; (ii) such matter promotes or is intended to promote feelings of enmity or hatred between different classes of citizens and (iii) a statement of the grounds of Government opinion [State of UP v Lalai Singh Yadav, AIR 1977 SC 202 : 1977 Cr LJ 186 : (1976) 4 SCC 213; Uday Pratap Singh v State of MP, AIR 1982 MP 173 : 1982 Cr LJ 1131 FB (MP); Narayan Das Indeerakhaya v State of MP, AIR 1972 SC 2086 : 1972 Cr LJ 1323 : (1972) 3 SCC 676; P Venkateswarlu v State of AP, 1982 Cr LJ 1950 (AP) FB : 1982 (2) Andh LT 217 : 1982 CrLC 576 : 1982 (2) APLJ 269]. Express statement of grounds of Government opinion is essential [State of UP v Lalai Singh Yadav, AIR 1977 SC 202 : 1977 Cr LJ 186 : (1976) 4 SCC 213] and non-compliance vitiates order [Dev Dutt v State of Manipur, 1979 Cr LJ 1402 FB (Gau); see Mohammad Khalid v Chief Commissioner, Delhi, AIR 1968 Del 13 FB : 1968 Cr LJ 50 : 69 Punj LR (D) 279; Chinna Annamalai v State of TN, AIR 1971 Mad 448 FB : 1971 Cr LJ

Page 3 of 7 [s 95] Power to declare certain publications forfeited, and to issue search-warrants for the same.— 1569 : 1971 (2) Mad LJ 158 : 1971 Mad LW (Cri) 57 (2); Lalai Singh Yadav v State of UP, 1976 Cr LJ 98 (All) : 1975 Cr LJ 376 : 1975 All LJ 601; P. Hemalatha, AIR 1976 AP 375 FB : 1976 (2) AnWR 190; Virendra Bandhu v State of Rajasthan, AIR 1980 Raj241 (FB) : 1980 Cr LJ (NOC) : 171 : 1980 Raj LW 139]. Two things are clear: (i) An order can be made only when the Government forms a certain opinion. That opinion is that the document concerning which the order is proposed to be made contains “any matter the publication of which is punishable under section 124-A or section 153-A or section 295A, Indian Penal Code, 1860” (to which section 153-B or section 292 or section 293 are added in the present Code). (ii) The Government has to state the grounds of its opinion. If grounds are not stated in the order, it cannot be known which communities were alienated from each other, or whose religious beliefs had been wounded according to the Government nor why the Government thought that such alienation or offence to religion has been caused [Harnam Das v State of UP, AIR 1961 SC 1662 : 1961 (2) Cr LJ 815; Anil Kumar Singh v State of UP, 2010 Cr LJ 717 (721) (All) : 2010 (1) All LJ 1; Sangaraj Damodar Rupawati, (2010) 7 SCC 398 : 2010 Cr LJ 4290 (4298) : (2010) 7 SCC 398 : (2010) 5 Bom LR 646]. [s 95.4] Grounds of opinion.— Formulating the grounds of opinion of the State Government is an essential pre-requisite for a valid order of forfeiture. [Harnam Das v State of UP, AIR 1962 SC 1662 : (1961) 2 Cr LJ 815 (SC) : (1962) 1 SCJ 223].

The expression “grounds of its opinion” used in section 95 of the Code implies that opinion should be supported by the facts. The requirement of stating the grounds of opinion is mandatory and an order bereft of the grounds of opinion does not stand the test of legality. Mere reproduction of ingredients of relevant section of Indian Penal Code is not sufficient [Anil Kumar Singh v State of UP, 2010 Cr LJ 717 (All) (FB)].

If the grounds of opinion are not properly set out, the order may be vitiated. [State of UP v Lalai Singh Yadav, AIR 1977 SC 202 : 1977 Cr LJ 186 (SC) : (1976) 4 SCC 213; Dev Dutt v State of Manipur, (1979) Cr LJ 1402 (Gau)].

Notification must state the grounds. Mere statement that article contained matter punishable under section 153B of Indian Penal Code, 1860 cannot constitute grounds [Varsha Publications Pvt Ltd v State of Maharashtra, 1983 Cr LJ 1446 SB (Bom)]. Action under section 95 cannot be taken against scholarly article on history and religion based on research on the basis that it would promote enmity or hatred [Varsha Publications Pvt Ltd v State of Maharahstra, 1983 Cr LJ 1446 SB (Bom)]. [s 95.5] Notification—Jurisdiction for issuance.— A notification in order to be legal and effective must comply with requirements and mere mention of article or part thereof in the notification would not constitute grounds contemplated by section 95 of Code of Criminal Procedure, 1973. There is distinction between facts which form grounds for formation of opinion and opinion itself. [The Trustees of Safdar Hashmi Memorial Trust v Government of NCT of Delhi, 2001 Cr LJ 3689 : 2002 (1) East Cri Cases 168 (Del) : (2001) 92 DLT 852 : (2001) 60 DRJ 208 (FB)].

The conditions necessary for forfeiture under section 95 of the Code are: (i) formation of opinion by the State Government prior to declaration of forfeiture and (ii) statement of the grounds of Government’s opinion. The expression “grounds of its opinion” used in section 95 of the Code implies that opinion should be supported by the facts. The requirement of stating the grounds of opinion is mandatory and an order bereft of the grounds of opinion does not stand the test of legality. Mere reproduction of ingredients of relevant section of Indian Penal Code is not sufficient [Anil Kumar Singh v State of UP, 2010 Cr LJ 717 (721) (All) : 2010 (1) All LJ 1]. [s 95.6] Passage in Appendix.— In some cases, it was held that the legal requirement of Government stating the grounds can be supplied without expressly stating the grounds but by necessary implication, by setting out the offending passages in extenso and also in various other ways, e.g., by indicating the page or pages [Arun, 59 Cal WN 495 : (1955) 1 CALLT 90 (HC) : (1957) ILR 2 Cal 396] and by merely giving extract of seditious poems without giving a separate ground of opinion [Jwalamukhi, ILR 1973 AP 114 FB]. But the Supreme Court has held that a formal authoritative setting forth of the grounds is statutorily mandatory. In this case, the notification containing an appendix setting out in tabular form the particulars of the relevant pages and lines of the offending publication regarded as scandalizing did not fulfil the legal requirement of stating Government grounds of opinion [State of

Page 4 of 7 [s 95] Power to declare certain publications forfeited, and to issue search-warrants for the same.— UP v Lalai Singh Yadav, AIR 1977 SC 202 : 1977 Cr LJ 186 : (1976) 4 SCC 213 overruling Arun, sup, and Jwalamukhi, sup].

Even if relevant offending passages are set out in the Appendix to the order, the total absence of grounds in the main order of the State Government may vitiate it because the court is not bound to make a roving inquiry. [State of UP v Lalai Singh Yadva, (1977) Cr LJ 186 (SC) : (1976) 4 SCC 213; Dev Dutt v State of Manipur, (1979) Cr LJ 1402 (Gau)].

However, if the grounds in the main order are laconic, the court may look into the appendix to see whether the grounds really fall within section 95. [GV Godse v UOI, AIR 1971 Bom 56 : (1971) Cr LJ 324 (Bom) : 72 Bom LR 871].

It is submitted that the decision in Azizul Huq Kausar Naquvi v State, AIR 1980 All 149 FB : 1980 Cr LJ 448 : 1980 All Cr C 152 : 1980 All WC 173 that annexure of an appendix mentioning the passages of the book which in Government opinion were punishable under section 153-A of Indian Penal Code, 1860, and also the pages on which they occurred, fulfil the requirement does not appear to be correct after State of UP v Lalai Singh Yadav, AIR 1977 SC 202 : (1977) Cr LJ 186 (SC) : (1976) 4 SCC 213]. [s 95.7] Class hatred.— The scope of the section is wider than that of section 153-A, Indian Penal Code, 1860 because “intention” falls short of attempt and has in addition been made an alternative ground [Gupta, AIR 1936 A 314 SB]. Even, if there be no intention to promote feelings of hatred or enmity, forfeiture can be ordered, if such feelings should be promoted as a result of the publication [Gautam, AIR 1936 A 561 : 37 Cr LJ 943 SB]. Where there is no order of forfeiture under section 95, no application under section 96(1) is competent [Nawal Kishore Thakuar v State of Punjab, AIR 1964 Punj 269 1064 (1) Cr LJ 696 : 66 Punj LR 276]. Section 95 does not penalise political doctrine, even though of the extreme kind, like communism, but merely such writings that directly promote feelings of hatred or enmity [Gautam, sup]. “Political considerations and reasons of State are the lifeblood of executive action, but they have no place in a court of law” [Md. Ali, 18 Cal WN 1, 17].

A vague, indefinite and nameless body, even though given one name, may not in certain circumstances be considered as a “class” by itself, particularly if individuals overlap indiscriminately [Gautam, sup]. The term “capitalists” is altogether too vague to denote a definite and ascertainable class of subjects [Maniben, 57 B 253; Vishambhar, 190 IC 887; Nepal, AIR 1939 Cal 306]. It is not sufficient to state that the book is intended to outrage the religious feelings of “a class of the citizens of India.” The particular class must be specified. Even worse is to state that the book “promotes feelings of hatred between different classes of the citizens of India”. The question arises, between which classes [Arun, 59 Cal WN 495 : (1955) 1 CALLT 90 (HC) : (1957) ILR 2 Cal 396]. [s 95.8] Book.— Each volume of a book does not necessarily constitute a separate book. “Book” is of wide import and covers every part and every volume of it. The main test is whether the treatise deals with one subject [Veerabarahmam, AIR 1969 AP 572 SB (Baijnath, AIR 1925 All 195 distd : 86 Ind. Cas. 55 : (1925) ILR 47 All 298)]. The Magistrate has no power to confiscate or destroy the books seized. He can only direct restoration of the books to the police who seized them [Rappal, AIR 1955 Mad 429]. [s 95.9] Power of Government to forfeit a newspaper, etc.— Undoubtedly, the power to forfeit a newspaper, book or document is a drastic power inasmuch as it not only has a direct impact upon the due exercise of a cherished right of freedom of speech and expression as envisaged in Article 19(1)(a) of the Constitution of India, it also clothes a police officer to seize the infringing copies of the book, document or newspaper and to search places where they are reasonably suspected to be found, again impinging upon the right of privacy. Therefore, the provision has to be construed strictly, and exercise of power under it has to be in the manner and according to the procedure laid down therein. [State of Maharashtra v Sangharaj Damodar Roopwati, 2010 Cr LJ 4290 (4298) : 2010 (58) BLJR 958 : 2010 (5) BomCR 646 : JT 2010 (7) SC 216 : 2010 (6) Scale 667 : (2010) 7 SCC 398 : [2010] 8 SCR 328 : 2010 (6) UJ 3131]. [s 95.10] Forfeiture.—

Page 5 of 7 [s 95] Power to declare certain publications forfeited, and to issue search-warrants for the same.— Forfeiture cannot necessarily be confined only to those parts of the book which come under the mischief of the section. The book should be read as a whole. The whole book consisting of parts or volumes may be confiscated [Veerabrahmam, sup. (Where the book consists of more than one volume, confiscation should be only of the volume containing the offensive matter—Bhimasankaram, J. dissenting)]. Where the words naturally and clearly have an intention to promote enmity, it must be presumed that the writer intended the natural result of the words [Chamupathi, AIR 1932 L 99 : (1932) ILR 13 LAH 152; Shiv Sharma, AIR 1941 Order 320]. In order to justify forfeiture under the section, Government should satisfy that on the evidence produced, a conviction could have been made under section 153A of Indian Penal Code, 1860 [Lajpat, AIR 1928 Lah 245 SB : (1928) ILR 9 LAH 663 : 111 Ind. Cas. 659]. Document though advertisement of a forthcoming book may be forfeited, but the advertisement must by itself be seditious [Saigal, AIR 1930 All 401 FB : 125 Ind. Cas. 470 : (1930) ILR 52 All 775].

A writ cannot be issued directing forfeiture of the “Koran” under section 95. The Koran is a sacred book and an object held sacred by a class of persons within section 295. No action can be taken against it under section 295-A or section 153A of Indian Penal Code, 1860. No disturbance of public tranquility has taken place till now, nor is one expected in future by reason of this book. The book occupies a unique place in the eyes of believers of Islam. Banning the book would violate Article 25 of the Constitution of India and would amount to abolition of Muslim religion. [Chandanmal Chopra v State of WB, AIR 1986 Cal 104 : (1986) Cr LJ 182 (Cal) : 1985 (2) Cur CC 297].

The notification under section 95 issued by State Government on mere advise of Union Government, for forfeiture of play, book and its manuscript not justified. [Anand Chintamoni Dighe v State of Maharashtra, 2002 Cr LJ 8 (Bom) : 2002 (1) Bom LR 671 : 2002 (2) Mah LJ 14].

Writ petition filed on 19 May 2000, challenging notification issued by State Government on 3 December 1998 of which copy served on petitioner on 15 May 2000 is not time barred. [Anand Chintamani Dighe v State of Maharashtra, 2002 Cr LJ 8 (Bom) : 2002 (1) Bom LR 671 : 2002 (2) Mah LJ 14].

Notification of forfeiture of book by Government not setting out facts which formed basis of opinion of State Government not fulfilling mandatory requirements of section 95(1) is invalid. [Anand Chintamani Dighe v State of Maharashtra, 2002 Cr LJ 8 (Bom) : 2002 (1) Bom LR 671 : 2002 (2) Mah LJ 14].

Express statement of grounds of Government’s opinion in its notification containing order of forfeiture of publication is necessary. [The Trustees of Safdar Hashmi Memorial Trust v Government of NCT of Delhi, 2001 Cr LJ 3689 (Del) : (2001) 92 DLT 852 : (2001) 60 DRJ 208].

In absence of any material indicating that posters displayed with deliberate and malicious act to insult religious belief of a particular community, order of forfeiture is not sustainable. [The Trustees of Safdar Hashmi Memorial Trust v Govt. of NCT of Delhi, 2001 Cr LJ 3689 (Del) : (2001) 92 DLT 852 : (2001) 60 DRJ 208].

There is no legal bar as far as provisions of section 95 of Code of Criminal Procedure, 1973 are concerned for the State Government to publish a second notification if, in its opinion, the first notification suffers from any technical defect [Sujato Bhadra v State of WB, 2006 Cr LJ 368 (393) (Cal)]. [s 95.11] Forfeiture of book— Locus standi .— The phrase any person having any interest in any newspaper, book cannot be circumscribed by any condition. It includes a person who is owner of a copy of such book and wants to retain with him, read it and discuss with others and share or impart information out of it. The words “any person” includes anyone having such interest. Due to declaration of forfeiture, the petitioners run the risk of seizure of their copies of book by any police officer and search of their premises. The book Jatiraj has been published by Meydha Publication. The petitioners being secretary of Meydha, readers and owner of the book are persons interested in the book and have a right

Page 6 of 7 [s 95] Power to declare certain publications forfeited, and to issue search-warrants for the same.— to move these petitions for setting aside the order of forfeiture [Anil Kumar Singh v State of UP, 2010 Cr LJ 717 (720) (All) : 2010 (1) All LJ 1]. [s 95.12] Onus to rebut opinion of Government in notification.— As many as seventeen pamphlets were ordered to be forfeited by the State Government on the ground that they came within the mischief of sections 153-A, 153-B and 295-A of Indian Penal Code, 1860. The State Government in the notification stated grounds of its opinion. Since the onus to rebut the prima facie opinion of the Government lies on the appellant to place on record the pamphlet referred to in the notification. But the applicant neither appeared nor filed the pamphlet to show that it did not offend sections 153-A, 153-B and 295A of Indian Penal Code, 1860 and thus failed to discharge the burden that the matter published did not fall within the mischief of said sections [Kanta Prasad Sharma v Government of Rajasthan, 2005 Cr LJ 2713 (Raj) : RLW 2005 (3) Raj 1662 : 2005 (3) RCR (Criminal) 912 ]. [s 95.13] Intention and Language.— Intention of the writer must be judged primarily by the language of the book itself, though external evidence is permissible either to prove or to rebut the meaning ascribed to it in the order of forfeiture [Kalicharan, 29 Cr LJ 968 FB; Khalil A 715]. The test of obscenity [in section 1(1) of the Obscene Publications English Act, 1959] depended on the publication and not on there being an intention on the part of the author to corrupt, thus honesty of purpose would not affect the criminality of the publication [R v Shaw, 1960 (2) All ER 330]. [s 95.14] Territorial operations.— An order under section 95 of Code of Criminal Procedure, 1973, takes effect throughout India by virtue of Article 261 of the Constitution of India and section 2(f) of the Code. But an application to set aside the forfeiture must be made only to the High Court of the State which passed the original order, even, if the order is given effect to in other States either by re-publication in the Gazette or through search and seizure [GV Godse v UOI, AIR 1971 Bom 56 : 1971 Cr LJ 324 (Bom) : 72 Bom LR871]. [s 95.15] Book dealt with as a whole.— The offending publication has to be viewed as a whole and the malicious intent of the author has to be gathered from a broader perspective and not merely from a few solitary lines. [Shalibhadra Shah v Swami Krishna Bharati, 1981 Cr LJ 113 (Guj) : (1980) 21 Guj LR 861 : 1980 CrLR (Guj) 314; N Veerabrahmam, 1959 Cr LJ 128 (AP) : (1958) 28 AWR 796 : 1959 Cr LJ 1 : 1959 Cr LJ 128; Nand Kishore Singh v State of Bihar, 1985 Cr LJ 797 (Pat) : 1985 Pat LJR 374 : 1985 BLJR 366; Chandumal Chopra v State of WB, AIR 1986 Cal 104 : 1986 Cr LJ 182 Cal : 1985 (2) Cur CC 297]. [s 95.16] Classes.— Different sub-sects of Hindus (e.g. Vaishnava Sampradaya, Backward and Scheduled Castes Hindus) also constitute distinct classes within the meaning of section 95. [State of UP v Lalai Singh, AIR 1977 SC 202 : 1977 Cr LJ 186 : (1976) 4 SCC 213 : Lalai Singh Yadav v State of UP, 1976 Cr LJ 98 (All) : 1975 All LJ 601 : 1975 All Cr C 376].

The particular “class” must be specified. It is not enough to state that the book outrages the religious feelings of “a class of citizens of India” [Arun Ghosh, 1955 Cal WN 495; State of UP v Lalai Singh Yadav, 1976 Cr LJ 98 (All) : 1975 All LJ 601 : 1975 All Cr C 376 (SB)]. [s 95.17] Invalid grounds.— If one of the grounds mentioned in the order of forfeiture is invalid, the order can still be valid if the other grounds are found to be valid [P Hemratha, AIR 1976 AP 375 (SB) : 1976 (2) AnWR 190].

But an order passed on the basis that section 295-A of Indian Penal Code, 1860 had been offended by a book cannot be supported on the new ground that the book also came within the mischief of section 153-A of Indian Penal Code, 1860 [Ramlal Puri v State of MP, AIR 1971 MP 152 : 1971 Cr LJ 1026 (FB) (MP) : 1971 Jab LJ 247]. [s 95.18] Notice to party—Necessity.— A specific remedy has been provided for in section 96 of Code of Criminal Procedure, 1973. It is not necessary that prior to the issue of the order, the State Government should issue notice to the party or parties and give

Page 7 of 7 [s 95] Power to declare certain publications forfeited, and to issue search-warrants for the same.— them an opportunity of being heard [State of UP v Lalai Singh, 1971 Cr LJ 1519; Piara Singh Bhaniara v State of Punjab, 2009 (1) Punj LR 766 : 2009 (1) RCR (Civil) 564]. [s 95.19] Validity of notification issued under section 95 of the Code.— The Supreme Court in State of Maharashtra v Sangharaj Damodar Rupawale, 2010 Cr LJ 4290 : (2010) 7 SCC 398 : [2010] 8 SCR 328 observed that no inflexible guidelines can be laid down to test the validity of a notification issued under section 95 of the Code. Nonetheless, it set out some legal aspects for testing validity of such a notification: (i) The statement of the grounds of its opinion by the State Government is mandatory and a total absence thereof would vitiate the declaration of forfeiture. Therefore, the grounds of Government’s opinion must be stated in the notification issued under section 95 of Code of Criminal Procedure, 1973 and while testing the validity of the notification, the court has to confine the inquiry to the grounds so disclosed; (ii) Grounds of opinion must mean conclusion of facts on which opinion is based. Grounds must necessarily be the import or the effect or the tendency of matters contained in the offending publication, either as a whole or in portions of it, as illustrated by passages which the Government may choose. A mere repetition of an opinion or reproduction of the section will not answer the requirement of a valid notification. However, at the same time, it is not necessary that the notification must bear a verbatim record of the forfeited material or give a detailed gist thereof; (iii) The validity of the order of forfeiture would depend on the merits of the grounds. The High Court would set aside the order of forfeiture if there are no grounds of opinion, because if there are no grounds of opinion, it cannot be satisfied that the grounds given by the Government justify the order. However, it is not the duty of the High Court to find for itself whether the book contained any such matter whatsoever; (iv) The State cannot extract stray sentences of portions of the book and come to a finding that the said book as a whole ought to be forfeited; (v) The intention of the author has to be gathered from the language, contents and import of the offending material. If the allegations made in the offending article are based on folklore, tradition or history, something in extenuation could perhaps be said for the author; (vi) If the writing is calculated to promote feelings of enmity or hatred, it is no defence to a charge under section 153-A of the Indian Penal Code, 1860 that the writing contains a truthful kind of past events or is otherwise supported by good authority. Adherence to the strict path of history is not by itself a complete defence to a charge under section 153-A of the Indian Penal Code, 1860; (vii) section 95(1) of Code of Criminal Procedure, 1973 postulates that the ingredients of the offences stated in the notification should “appear” to the Government to be present. It does not require that it should be “proved” to the satisfaction of the Government that all requirements of punishing sections, including mens rea, were fully established; (viii) The onus to dislodge and rebut the prima facie opinion of the Government that the offending publication comes within the ambit of the relevant offence, including its requirement of intent is on the applicant and such intention has to be gathered from the language, contents and import thereof; (ix) The effect of the words used in the offending material must be judged from the standards of reasonable, strong-minded, firm and courageous men and not those of weak and vacillating minds, nor of those who scent danger in every hostile point of view. The class of readers for whom the book is primarily meant would also be relevant for judging the probable consequences of the writing [State of Maharashtra v Sangharaj Damodar Rupawate, 2010 Cr LJ 4290 (SC) : [2010] 8 SCR 328: (2010) 7 SCC 398]. End of Document

[s 96] Application to High Court to set aside declaration of forfeiture.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER VII PROCESSES TO COMPEL THE PRODUCTION OF THINGS > B.—Search warrants

The Code of Criminal Procedure, 1973 CHAPTER VII PROCESSES TO COMPEL THE PRODUCTION OF THINGS B.—Search warrants [s 96] Application to High Court to set aside declaration of forfeiture.— (1) Any person having any interest in any newspaper, book or other document, in respect of which a declaration of forfeiture has been made under section 95, may, within two months from the date of publication in the Official Gazette of such declaration, apply to the High Court to set aside such declaration on the ground that the issue of the newspaper, or the book or other document, in respect of which the declaration was made, did not contain any such matter as is referred to in sub-section (1) of section 95. (2) Every such application shall, where the High Court consists of three or more Judges, be heard and determined by a Special Bench of the High Court composed of three Judges and where the High Court consists of less than three Judges, such Special Bench shall be composed of all the Judges of that High Court. (3) On the hearing of any such application with reference to any newspaper, any copy of such newspaper may be given in evidence in aid of the proof of the nature or tendency of the words, signs or visible representations contained in such newspaper, in respect of which the declaration of forfeiture was made. (4) The High Court shall, if it is not satisfied that the issue of the newspaper, or the book or other document, in respect of which the application has been made, contained any such matter as is referred to in sub-section (1) of section 95, set aside the declaration of forfeiture. (5) Where there is a difference of opinion among the Judges forming the Special Bench, the decision shall be in accordance with the opinion of the majority of those Judges. [s 96.1] Changes.— Sub-sections (1), (2), (3) and (5) of section 96 correspond to the old sections 99B, 99C, 99E, 99D(1) and 99D(2), respectively, with two changes of a clarificatory nature :

(i)

that the period of limitation in sub-section (1) for application to the High Court to set aside a declaration of forfeiture will commence from the date of publication of the declaration in the official Gazette.

(ii) In sub-section (2) provision has been made to meet a contingency where the High Court does not have three or more judges. [s 96.2] Scope and application of section 96.—

Page 2 of 4 [s 96] Application to High Court to set aside declaration of forfeiture.— In this section, provisions of section 17 of the repealed Press Act 1 of 1910 are re-enacted. In cases under that Act it was held that the onus was on the applicant to show that the book or document did not come within the mischief of the offences charged [Md. Ali, 41 C 466, 484; Besant, 39 M 1085; A. B. Patrika, 47 C 190, 236]. Thereafter, it was also held that it is for the applicant to convince the court that the order is wrong [Kalicharan, 49 A 856 SB; see also Harnam, AIR 1957 All 538 (SB) : (1957) 27 AWR 636 : 1957 Cr LJ 912]. A Full Bench of Allahabad High Court has held that it was manifestly most convenient that the Government Advocate should begin his case. But where both parties have been heard fully, the question of onus is of no practical importance [Saigal, AIR 1930 All 401 : 125 Ind. Cas. 470 : (1930) ILR 52 All 775]. Another case took the view that section 96(1) clearly indicates that it is the applicant who has to make out a case in his favour [Gupta, AIR 1936 All 314 (SB) : (1936) AWR 227 : 162 Ind. Cas. 507]. In an earlier case Ayling, J. held that there was no onus on either, and that the tendency of the words objected to had to be determined from the language used. [Besant, 39 M 1085] It is for the Government to establish that the book contains objectionable matter [Bhimasankaram, J, in dissenting judgment in Veerabrahmam AIR 1959 AP 572 (SB) : 1959 Cr LJ 1280, see also Baijnath, AIR 1925 All 195 (SB) : 86 Ind. Cas. 55 : (1925) ILR 47All 298].

The fixation of the time limit without issue of notice of forfeiture on the person concerned does not make the action illusory, as notification in the Gazette is sufficient publication [Veerabrahmam, AIR 1959 AP 572 SB (Row, AIR 1952 SC 196 : 1952 SCR 597 : 1952 Cr LJ 966 distinguished)]. Limitation commences from the date of publication of the Gazette containing notification and not from the date of the order [Lalai Singh Yadav v State of UP, 1971 Cr LJ 1519 (All) : 1971 All Cr R 375 : 1971 All LJ 760 SB]. Section 5 Limitation Act, 1963 is applicable to section 96 [Azizul Huq Kausar Naquvi v The State, AIR 1980 All 149 : 1980 Cr LJ 448 All FB 1980 All Cr C 152]. The limitation as to time in section 96(1) is restricted to the special mode of relief in it; it cannot prevent the exercise of the power of the Supreme Court under Article 32 or the High Court under Article 226 after the expiry of the time [Bhimasankaram, J, in Veerabramam, sup].

It is not possible to place restricted meaning to the expression “any person having an interest”. The right of a citizen to be informed is a part of our cherished fundamental right of freedom of speech and expression. Even if section 95 of Code of Criminal Procedure, 1973 amounts to a reasonable restriction, yet the Government must satisfy that the act of forfeiture was according to law. A citizen, therefore, having an interest in the right to be informed, as a larger part of his right of freedom of speech and expression, will be a person having any interest [Sangharaj Damodar Rupawate v Nitin Godre, 2007 Cr LJ 3860 (3863) (FB) : 2007 (4) Mah LJ 461 : 2008 (1) Crimes 258 (Bom)].

Under section 96 of the Code the person interested in the book forfeited has a right to apply to the High Court to set aside the order of forfeiture made under sub-section (1) of section 95 of the Code. The phrase any person having any interest in any newspaper, book cannot be circumscribed by any condition. It includes a person who is owner of a copy of such book and wants to retain it with him, read it and discuss with others and share or impart information out of it. The words “any person” includes anyone having such interest [Anil Kumar Singh v State of UP, 2010 Cr LJ 717 (720) (All) (FB)]. [s 96.3] Petition against forfeiture of book— Locus standi .— A person who is the owner of a copy of a forfeited book and wants to retain it with him, read it and discuss with others and share or impart information out of it, comes within the purview of section 96 of Code of Criminal Procedure, 1973 and has locus standi to move petition for setting aside order of forfeiture [Sujato Bhadra v State of WB, 2006 Cr LJ 368 (373) (Cal)].

The application was filed for setting aside the declaration of forfeiture of book and it was held that any person having interest in book has a locus standi in matter. Publication of book had not created any disturbance of public tranquility or maintenance of harmony between various groups. Hence no offence under section 153A was created and mere vandalization of a research institute after publicationof book was not sufficient to order forfeiture [Sangharaj Damodar Rupawate v Nitin Godre, 2007 Cr LJ 3860 (Bom-FB) : 2007 (4) Mah LJ 461 : 2008 (1) Crimes 258].

Under section 96 of the Code, the person interested in the book forfeited has a right to apply to the High Court

Page 3 of 4 [s 96] Application to High Court to set aside declaration of forfeiture.— to set aside the order of forfeiture made under sub-section (1) of section 95 of the Code. The phrase any person having any interest in any newspaper, book cannot be circumscribed by any condition. It includes a person who is owner of a copy of such book and wants to retain it with him, read it and discuss with others and share or impart information out of it. The words “any person” includes anyone having such interest [Anil Kumar Singh v State of UP, 2010 Cr LJ 717 (All)]. [s 96.4] Territorial Jurisdiction.— High Court having jurisdiction over territorial limits of State Government passing order, can only entertain application [Gopal, A 1971 B 56 SB]. Where the order of forfeiture was made by the Government of West Bengal and the Government of Andhra Pradesh republished the notification, the applicant’s remedy was to move the Calcutta High Court and not the High Court at Andhra Pradesh [Ghulam, AIR 1962 AP 526 : 1962 Cr LJ 740]. Where the West Bengal Government notification of forfeiture was republished by the Bihar Government, it was not an order of forfeiture by the latter Government and it could not be set aside [Ghulam, AIR 1963 P 284 : 1963 Cr LJ 168]. [s 96.5] Relevance of decision.— Where during the pendency of a case under section 153-A of Indian Penal Code, 1860 the Government prescribed a book and the accused having moved the High Court under section 96(1) the decision went against him, the judgment was relevant in the section 153-A case [Kalicharan, 28 Cr LJ 785]. [s 96.6] Sub-section (4).— Reading sections 99-A, 99-B and 99-D [now sections 95, 96(1) and 96(4)] together, the words “matter of such a nature (now any such matter) as is referred to in sub-section (1) of section 99-A” (now section 95) appearing in section 99-D [(Now section 96(4)] mean only those matters on which the order of forfeiture was based, that is, those for which the reasons stated by it, the Government thought it punishable under one or more of sections 124-A, 153-A and 295-A of Indian Penal Code, 1860 (to which sections 153-B, 292 and 293 are added in the present Code) mentioned by it. Hence it is the duty of the High Court under section 99-D [now section 96(4)] to set aside an order of forfeiture, if it is not satisfied that the grounds on which the Government formed its opinion that the books would be punishable under one or more of the above sections could justify that opinion. It is not its duty to do more and to find for itself whether the book contained any such matter whatsoever [Harnam Das v State of UP, AIR 1961 SC 1662 : 1961 (2) Cr LJ 815 (Baijnath, 47A 298 FB : AIR 1925 A 195; Premi, AIR 1951 Raj 113 : RLW 1951 Raj 86; Veerabrahmam, AIR 1959 AP 572 : 1959 Cr LJ 1280; Khalil, AIR 1960 All 715 overruled : 1960 Cr LJ 1528)]. It has been held in Calcutta that the court is entitled to set aside the order under section 96(4) for non-compliance with section 95, i.e., failure to state the grounds in the Government order for it cannot then be satisfied that the grounds given by Government justified the order [Arun, 59 Cal WN 495 : (1955) 1 CALLT 90 (HC) : (1957) ILR 2 Cal 396 cited above (appeared in Harnam Das v State of UP, AIR 1961 SC 1662 : 1961 (2) Cr LJ 815)]. The High Court could not make a roving enquiry beyond the grounds set forth in the order [State of UP v Lalai Singh Yadav, AIR 1977 SC 202 : 1977 Cr LJ 186 : (1976) 4 SCC 213 : 1976 SCC (Cri) 556]. [s 96.7] Factual truth if to be proved.— The law does not require that the objectionable matter must be proved to be factually correct or unsustainable. It is sufficient if the passages, though based on some source of authority, are likely to hurt the traditional beliefs of a class and occasion the consequences contemplated by sections 253-A and 295-A Indian Penal Code, 1860. The plea of justification by truth or source or authority in case of scurrilous and vituperative attacks is no defence [Lalai Singh Yadav v State of UP, 1976 Cr LJ 98 (SB) (All) : 1975 All LJ 601 : 1975 All Cr C 376]. If some of the grounds are valid, though other grounds are not valid, order of forfeiture is not vitiated [P. Hemalatha, AIR 1976 AP 375 (SB) : 1976 (2) AnWR 190]. Where an order of forfeiture has been passed on the ground that section 295-A of Indian Penal Code, 1860 was offended, it can be upheld only on that ground that section 153-A Indian Penal Code, 1860 was offended [Ramlal Puri v State of MP, AIR 1971 MP 152 : 1971 Cr LJ 1026 FB : 1971 Jab LJ 247 : 1971 MPLJ 388]. [s 96.8] Grounds to be stated.— Where the StateGovernment omits to mention the grounds, High Court cannot supply the grounds or decide the matter on merits. It may not be necessary to mention the grounds of length, but it can be done concisely and precisely. In some cases, even a laconic statement may be enough [Virendra Bandhu v State of Rajasthan, AIR 1980 Raj 241 : 1980 Cr LJ (NOC) 171 : 1980 Raj LW 139 (FB) following State of UP v Lalai Singh Yadav, AIR 1977 SC 202 : 1977 Cr LJ 186 : (1976) 4 SCC 213 : 1976 SCC (Cri) 556]. [s 96.9] Tests to be applied by the court.—

Page 4 of 4 [s 96] Application to High Court to set aside declaration of forfeiture.— If the court is left in doubt after hearing the application, it should set aside the order [Kalicharan, 49 A 856 (SB)], or where a passage is open to two interpretations, the court would not be satisfied that the matter is objectionable [Gupta, AIR 1936 All 314 : (1936) AWR 227 : 162 Ind. Cas. 507]. In order to bring it within section 295-A of Indian Penal Code, 1860, it is not so much the matter of discourse as the manner of it. In other words, the words used should be such that it is bound to be regarded by any reasonable man as grossly offensive and provocative and maliciously and deliberately intended to outrage the feelings of any class of citizens— Forfeiture of a book set aside [Shivrani, AIR 1955 P&H 28 : 1955 Cr LJ 337]. Section 95 is brought into play in respect of insults to religious beliefs deliberately and maliciously made. But the intention of the author is to be gathered primarily from the language used [Veerabrahmam, AIR 1959 AP 572 SB]. Section 295-A does not penalise every act of insult to or attempt to insult the religion or the religious beliefs of a class of citizens, but it brings within its grip only insults perpetrated with the deliberate and malicious intention of outraging the religious feelings of a class. Insults to religion offered unwittingly or carelessly do not come within it. It only punishes the aggravated form of insult to religion perpetrated deliberately and maliciously. The calculated tendency of the aggravated form of insult is clearly to disrupt the public order [Ramjilal Modi v State of UP, AIR 1957 SC 620 : 1957 Cr LJ 1006]. [s 96.10] Limitation.— Petition challenging forfeiture of publication after lapse of 45 years in a case, where the period of limitation is only two months, was held barred. The petition of petitioner could not be entertained by treating bar of limitation to be an objection of technical nature. [Ishwar Lal Khatri v State of Rajasthan, 2010 Cr LJ 1876 (1878) : (2010) 1 WLN 636 : RLW 2010 (2) Raj 1364 (Raj)]. End of Document

[s 97] Search for persons wrongfully confined.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER VII PROCESSES TO COMPEL THE PRODUCTION OF THINGS > B.—Search warrants

The Code of Criminal Procedure, 1973 CHAPTER VII PROCESSES TO COMPEL THE PRODUCTION OF THINGS B.—Search warrants [s 97] Search for persons wrongfully confined.— If any District Magistrate, Sub-divisional Magistrate or Magistrate of the first class has reason to believe that any person is confined under such circumstances that the confinement amounts to an offence, he may issue a search-warrant, and the person to whom such warrant is directed may search for the person so confined; and such search shall be made in accordance therewith, and the person, if found, shall be immediately taken before a Magistrate, who shall make such order as in the circumstances of the case seems proper. [s 97.1] Changes.— Section 97 corresponds to the old section 100 with substitution of the words “District Magistrate” for “Presidency Magistrate”. [s 97.2] Scope and application of section 97.— (Cf. Section 98 and section 80A, Calcutta Police Act, 4 of 1886). Search warrant is to be issued only for persons wrongfully confined if person for whom search warrant issued is confined wrongfully [V. Nandabai Kashinath Sonar, 2010 Cr LJ (NOC) 669 (Bom)]. The alleged confinement should be such that before the issue of search warrant the Magistrate has “reason to believe” that it amounts to an offence (e.g., under sections 339, 340, 361 & 368 of Indian Penal Code, 1860) [Banarsilal Lal v Neelam, AIR 1969 Del 304 : 1969 Cr LJ 1370], “Reason to believe” is quite different from cause to suspect (see ante, section 93). A belief is based on some definite facts. When the circumstances afford no ground for the belief required by the section, issue of warrant is illegal [Khaliqan, AIR 1945 Oudh 170]. At the same time, clear proof of commission of offence is not necessary before issue of warrant. It would be enough, if the materials satisfy the Magistrate to whom wide powers have been purposely given [Rajendra, AIR 1957 Cal 139 : 1957 Cr LJ 365]. Warrant can be issued for arrest of a woman unlawfully detained [Khuda Bux, AIR 1951 All 637 : (1951) 21 AWR 458]. Removal of a male child aged four years from the custody of the mother [who is in law entitled to its custody], by the father by using physical force is prima facie wrongful action, and the Magistrate issuing the warrant could be said to have reason to believe that the confinement was wrongful [K. Pareekytty v Ayyikkal Ayissakutty, 1978 Mad LJ (Cr) 40 : 140 (Ker) 1998 Cr LJ (NOC) 98 : 1978 Ker LT 33 (Sk. Razak v Riyasathbi, 1975 Cr LJ 1131 (Bom) rel. on]. Father taking away his own child below five years from the mother’s keeping, commits no offence he being the natural guardian and hence section 97 does not apply [K Sarasu v Sengodan, 1981 Cr LJ (NOC) 113 (Mad) : 1981 TLNJ 25 : 1981 Mad LW (Cri) 37 : 1981 Mad LJ (Cri) 296] see also “welfare of child” and “custody of minor”. Application for issuance of search warrant for recovery of nine-year-old son living with his father, natural guardian was held not maintainable [Ramesh v Laxmi Bai, (1998) 9 SCC 266 : (1998) 9 SC 4246: 1998 SCC (Cri) 999].

Page 2 of 5 [s 97] Search for persons wrongfully confined.—

Mother’s custody of minor children cannot be said to be illegal and hence provisions of section 97 of Code of Criminal Procedure, 1973 are not attracted [Anjali Anil Rangari v Anil Kripasagar Rangari, 1997 SCC (Cri) 827 : (1997) 10 SCC 342].

The sine qua non of application of section 97 of Code of Criminal Procedure, 1973 is that there has to be prima facie finding that the person has been in wrongful confinement and that wrongful confinement must amount to an offence [Lily Manna v State of WB, 2008 Cr LJ 625 (628) : 2008 (1) Cal Cri LR 167 (Cal) : 2008 (61) All Ind Cas 562].

The power under section 97 of the Code should be exercised cautiously and with more care and circumspection in cases relating to custody of minor. Though provisions under the Guardians and Wards Act are not a substitute for proceedings and order under section 97 of the Code, they, nonetheless, are good reason for not readily, casually and easily invoking section 97 and issuing search warrant in cases where the issue on hand is related to minor child and the child is with one of the parents. [Savitaben Mahendrabhai Parmar v State of Gujarat, 2013 Cr LJ 4472 (Guj) : 2013 (2) GLR 1006 : (2013) 127 AIC 598 (Guj)].

Under section 97 of the Code, the Executive Magistrate has no power to wrest the custody of a child from its natural guardian. Section 97 of the Code is restricted in its application for issuance of direction for search of a person wrongfully confined [Jaishree Tiwari v State of Rajasthan, 2013 Cr LJ 1610 (Raj) : 2012 (3) ILR (Raj) 260 : RLW 2013 (1) Raj 615]. [s 97.3] Application of mind.— A search warrant under section 97 cannot be issued unless the Magistrate applies his judicial mind to determine, if the alleged confinement amounts to an offence. A father having custody of his child does not commit an offence. If the argument is that the mother is the preferable custodian, the matter has to be determined by the Civil Court. Section 6 of Hindu Minority and Guardian Act cannot be resorted to, for giving jurisdiction to the Magistrate [Yudhistir Mohanand v Dalimba Mohanand, 1990 Cr LJ 1085 : 1989 (2) OCR 658 (Orissa KP Mohapatra, J)]. [s 97.4] “Offence”.— The act of detention must be an offence [Banarsi v Neelam, A 1969 Del 304]. Reasonable behaviour of the Magistrate in this behalf would justify the issue of warrant.[Khuda Bux v State, AIR 1951 All. 637 (Revisional Court refused to interfere : (1951) 21 AWR 458), [Cf. Kallan v Emperor, AIR 1936 All 306 : (1936) AWR 223 : 162 Ind. Cas. 339]. [s 97.5] Husband and wife.— It is not unoften that the section is invoked by a husband merely for recovery of wife who is with her parents or some other person for some reason or other and the issue of a warrant in cases like these is illegal [see Bisu, 11 Cal WN 836; Thakamani, 43 Cal WN 363; Basantibai, AIR 1958 Raj 267 : 1958 Cr LJ 1245 : RLW 1958 Raj 206]. Conversely, in a complaint against a husband alleging confinement of wife, the Magistrate without making a summary order should hear both parties and then pass necessary order [Sher Sha, 11 Cr LJ 450]. Issue of search warrant on allegation by husband that minor wife is not being allowed to go with him or to meet him and an order to hand her over to him as guardian under the Hindu Guardianship Act is illegal, Magistrate has no jurisdiction to act as a Civil Court [Basantibai, sup].

In India, the writ of habeas corpus is probably never used by a husband to regain his wife, and the alternate remedy under section 97 is always used [Md. Ikram Hussain v State of UP, AIR 1964 SC 1625 : 1964 (2) Cr LJ 590]. [s 97.6] Notice.— It has been observed in a case that search warrant should not be issued without notice [Shaibalini, 2 Cal WN cccxxxiii]. A Magistrate cannot act under the section merely on an allegation but should first hold an enquiry

Page 3 of 5 [s 97] Search for persons wrongfully confined.— [Abdul Aziz, 17 Cr LJ 491; Lilabai, AIR 1958 MP 24 : 1958 Cr LJ 48]: it has however also been held that he may issue warrant upon a complaint [Chepa, AIR 1928 Pat 550 : 113 Ind. Cas. 578]. Although the section does not require a notice or an inquiry before issue of warrant, searching questions to the informant or an inquiry by the Magistrate would be a rule of prudence in proper cases. All that is necessary is that the Magistrate must be satisfied that there has been wrongful confinement and that amounts to an offence [Cf. Saheb Begum, (1963) 1 Andhra WR 376]. [s 97.7] Welfare of child.— Question of welfare of child (as between competing claimants) is to be decided by Civil Court [K Sarasee v Sengodan, 1981 Cr LJ (NOC) 113 (Mad) : 1981 Mad LW (Cri) 37 : 1981 Mad LJ (Cri) 296].

The father voluntarily handed over the custody of children to their mother for three days. The mother admitted them in school and their academic performance improved significantly. The children aged 17 and 13 years old preferred to stay with their mother. The father took the plea that the mother took undue advantage of gracious act of father. The court held this plea to be untenable and applied the principle of welfare of child and handed over the custody of children to the wife. [Purvi Mukesh Gada v Mukesh Popatlal Gada, AIR 2017 SC 5407]. [s 97.8] Detention of woman.— Section 97 cannot be resorted to: (a) where a woman is living voluntarily with her parents [T Ramachandran v VK Kutton 1975 Cr LJ 1531 (Ker)] or (b) where the woman is an adult and is not being confined against her will [Lokumal Kishinchand Manghnani v Vivek Arya, 1972 Cr LJ 1564 (Bom) : 74 Bom LR 290 : 1972 Mah LJ 576] or (c) being an adult desires to go back to the place from which she was brought [Bholanath v Commissioner of Police (1957) 61 Cal WN or 330].

Where no allegation against any person is made that he has committed any offence, his personal liberty cannot be curtailed. Therefore, in the present case, the order of detention concerning wife at home was set aside [Kulwant Kaur v State of Punjab, 1995 Cr LJ 1530 (Punjab and Haryana) : 1994 (2) RCR (Criminal) 128 : 1997 (2) RCR (Criminal) 780 : 1994 1 RRR 247 : 1995 (1) SCT 437 (P&H)].

The girl who was not minor stated that she had married of her own choice a person of another religion. She was not guilty of any offence nor her husband of abducting. In such circumstances, her detention in Nari Niketan was held improper [Shadhana v State of UP, 2003 Cr LJ 3438 : 2003 All LJ 1663 : 2003 (46) All Cr C 600 : 2003 (1) All Cr R 735 (All)]. [s 97.9] Place of execution.— Issue of a warrant without confining it to a particular place is not illegal (obiter) [Chepa, sup]. If a person is produced in court before the actual execution of warrant, there can be no order under the section [Chagan, 24 Cal WN 104 : 52 Ind. Cas. 889]. Section 25(2) of Guardian and Wards Act, 1890 empowers the District Judge to exercise the power under section 97 when the ward is removed from custody of guardian.

On reading sections 77, 78, 97 and 99 it is clear that a search warrant may be executed at any place in India outside the issuing Magistrate’s jurisdiction [Gyaso, AIR 1957 MP 7 : 1957 Cr LJ 64; Rajendra, AIR 1957 Cal 139 : 1957 Cr LJ 365; Bhaskaran, AIR 1954 Ker 157 : 1954 Cr LJ 289]. [s 97.10] Search warrant and cognizance.— Issue of search warrant under section 97 is not sufficient to disqualify a Magistrate from taking cognizance of actual offence [In re: Malepati Srihari Rao, AIR 1964 AP 226 : 1964 (1) Cr LJ 507]. [s 97.11] Shall make such order as considers proper.— Section 97 applies to wrongful confinement irrespective of kidnapping or abduction and although a Magistrate can pass such order as he considers proper in regard to a person taken before him under section 97, it cannot mean that he can rightly deprive a person of his or her liberty. A woman above the age of eighteen -should be set at liberty and jail custody would beillegal [Lalmani, AIR 1957 Pat 689 : 1957 Cr LJ 1445]. Nor has the court

Page 4 of 5 [s 97] Search for persons wrongfully confined.— jurisdiction to order the detention of any woman who is suit jurist at any Rescue Home [Bholanath, 61 Cal WN 330]. [s 97.12] Form.— No form of a warrant being prescribed, form under section 93 [Mazam, 45 C 905] or under section 94 [Gora Mian, 16 Cal WN 336 : 39 C 403] may be used with necessary adaptations. If the accused destroys the warrant, the presumption is that it was in proper form [Gora Mian, ILR 39 Cal 403]. [s 97.13] Execution of warrant.— Officer to whom warrant was issued to search a particular house cannot endorse it to another officer with direction to execute it in another place [Chepa, 30 Cr LJ 175]. When a warrant is once issued, the police officer is to search and take the person to the Magistrate without considering whether or not he is wrongfully confined [Kallan, AIR 1936 All 306 : (1936) AWR 223 : 162 Ind. Cas. 339]. Execution of warrant outside jurisdiction (section 78).

In section 97, what is predominant is a search of the person alleged to be detained wrongfully. The place and name of a person, if any, quoted in the warrant or supplied in the warrant, are merely enabling. However, such particulars provided in the warrant do not confine the process of search. The wording in the section, that “such search shall be made in accordance therewith”, does not control the pursuit of search. If the executing authority did not find the person at a place mentioned in the warrant, the authority is legally competent to serve the warrant of search at any other place, of search it learnt, the availability of the person alleged to have been detained. [Pravin Singh v Biharilal Singh, 1989 Cr LJ 1386 : 1988 (2) DMC 269 : 1988 (2) All CrLR 920 : 1988 (2) Hindu LR 608 (Bom)]. [s 97.14] Custody of minor.— Where the question is of custody of minor, the type of remedy proceeded with by an applicant whether by way of an application under the Guardians and Wards Act or by way of an application under section 97 of Code of Criminal Procedure, 1973, or by way of a writ of habeas corpus is not relevant. In all such situations, the paramount consideration is the welfare of the minor. Where the father has forcibly removed his child 1 1/2 years from custody of his mother and the mother has filed application under section 97 of Code of Criminal Procedure, 1973, the mother was entitled to speedy remedy as available to her under the law because of the tender age of the child and the exigency of the situation that demanded restoration of the custody of the child to the mother [Zahirul Hasan v State of UP, (1988) Cr LJ 230 : 1987 All Cr C 469 : 1987 All WC 1117 (All); see also above under “Scope and Application” and “Welfare of minor”].

When father being a natural guardian of the son keeps the son with him and the son has far exceeded the age of five years, it cannot be said that the son has been wrongfully confined by the father or that such confinement would amount to an offence. In such case, the Executive Magistrate cannot act as Civil Court and decide as to in whose custody the child should be placed for welfare and betterment of the child [Lilly Manna v State of WB, 2008 Cr LJ 625 (628) : 2008 (1) Cal Cri LR 167 : 2008 (2) AICLR 177].

Section 97 is a procedure for speedy recovery of the child if it is found that a child or a person has been wrongly confined. Where the daughter has been snatched away from the custody of the mother, and so long as the issue is not resolved by a Civil Court, the mother is competent to take recourse to recovery under section 97, for immediate custody of the child [Indrajit Saha v State of WB, 2012 (2) Crimes 748 (750) (Cal)].

The mother left her two children in her matrimonial house and disappeared along with her paramour while her husband was employed abroad. After sometime, she came back but by then her husband had divorced her and had remarried. She claimed custody of the children under sections 97 and 98 of Code of Criminal Procedure, 1973 from her mother-in-law. It was held that on the facts of the case she could not be allowed to take advantage of sections 97 and 98 of Code of Criminal Procedure, 1973. She was advised to go to the Family Court [Zeenath KV v Kaduja, 2007 Cr LJ 600 (604) : 2006 (4) Ker LT 905 (Ker)].

Page 5 of 5 [s 97] Search for persons wrongfully confined.—

A father is natural as well as legal guardian of minor boy under section 6 of The Hindu Minority and Guardianship Act, 1956. Therefore, when a minor son is with his father such custody cannot be said to be confinement, much less “illegal confinement” or confinement amounting to offence. In such a case, the Magistrate would not be justified in mechanically invoking the provisions under section 97 of the Code and issuing a search warrant against the father with whom the minor boy is staying. [Savitaben Mahendrabhai Parmar v State of Gujarat, 2013 Cr LJ 4472 (Guj) : 2013 (2) GLR 1006; Pramod V Kamble v Jyoti P Kamble 2013 (1) BomCR (Cri) 63 (Bom)].

In a dispute of custody of girl child of 15 years, it was found that she has achieved sufficient level of maturity and the mother was unable to win over her confidence. The Apex Court gave custody of child to father. [Jitender Arora v Sukriti Arora, AIR 2017 SC 957]. [s 97.15] Confinement.— Custody of children with grandmother is not confinement within the meaning of section 97 of the code [Zeenath K V v Kadeeja, 2007 Cr LJ 600 (Ker) : ILR 2006 (4) Kerala 738 : 2006 (4) Ker LT 905]. [s 97.16] Calcutta Police.— If, for any reason, it is impracticable to apply to a Magistrate under section 97 or section 98, the Commissioner of Police on receipt of information on the oath that any person is wrongfully confined may issue a search warrant under section 80-A, Calcutta Police Act, 1886. [s 97.17] Order to be passed.— Although the section speaks of the Magistrate’s power to pass “such order as in the circumstances of the case seems proper” it is obvious that the order must be in conformity with the law relating to personal liberty. Thus, as per Lalmani v State AIR 1957 Pat 689, Person who is adult cannot be sent to rescue home against her well; no one who is adult can be compelled to leave a place where he or she has been voluntarily residing [Anuara Begum, (1962) Cr LJ 159 (Tripura)]. [s 97.18] Habeas Corpus .— A writ petition by way of habeas corpus can be pursued even where illegal detention is by a private person [Ikram v State of UP, AIR 1964 SC 1625, 1630], but the Writ Court can refuse to go into the disputed facts [T Ramachandra v VK Kuttan, 1975 Cr LJ 1531 (Ker)].

If the order under section 97 of Code of Criminal Procedure, 1973 is itself illegal and results in the illegal detention of a person, that person may himself seek habeas corpus [Ashok Thadani v Ramesh K Advani, 1982 Cr LJ 1446 (AP) : 1982 (1) Andh LT 399].

End of Document

[s 98] Power to compel restoration of abducted females.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER VII PROCESSES TO COMPEL THE PRODUCTION OF THINGS > B.—Search warrants

The Code of Criminal Procedure, 1973 CHAPTER VII PROCESSES TO COMPEL THE PRODUCTION OF THINGS B.—Search warrants [s 98] Power to compel restoration of abducted females.— Upon complaint made on oath of the abduction or unlawful detention of a woman, or a female child under the age of eighteen years, for any unlawful purpose, a District Magistrate, Sub-divisional Magistrate or Magistrate of the first class may make an order for the immediate restoration of such woman to her liberty, or of such female child to her husband, parent, guardian or other person having lawful charge of such child, and may compel compliance with such order, using such force as may be necessary. [s 98.1] Changes.— Section 98 corresponds to the old section 552 with no change of substance but with a formal change by substitution of “Magistrate of the first class” for “Presidency Magistrate” and addition of “Sub-divisional Magistrate”. [s 98.2] Scope and application of section 98.— The main purpose of the section is to protect women and female children (under 18) from detention for immoral purposes, although the section would also be appropriate where the purposes of detention are clearly unlawful though not necessarily immoral [Om Radhe, AIR 1939 SC section 152]. The exclusion of male children shows that only some definite purpose, unlawful in itself was contemplated, but that the purpose had some special reference to the sex of the person against whom it was entertained. This is supported by the earlier legislation on the subject which had referred to adultery, concubinage, prostitution, deflowering or disposing of in marriage. The substitution of the words “any unlawful purposes” may have extended the scope to some other purposes [Abraham, 16 C 487, 502]. The powers under the section being exceptional must be used with caution [Om Radhe, sup]. Cf section 97 which makes no reference to the sex of the person unlawfully detained. That section provides for search warrant, whereas this section provides for an order for immediate restoration of the person detained to liberty. Section 98 is analogous to the nature of habeas corpus [Tulsidas, AIR 1933 Nag 374]. The section is intended to give immediate relief, and a protracted inquiry defeats its object. It aims at a summary disposal of an application [Dhapu, AIR 1959 MP 356 : 1959 Cr LJ 1184 : 1959 JLJ 341 : 1960 MPLJ 700].

If the alleged victim of unlawful detention is a woman above eighteen, the Magistrate must set her at liberty allowing her to go wherever she likes, her detention in jail custody is illegal [Lalmani, AIR 1957 Pat 689 : 1956 BLJR 235; Dhapu, sup; Bholanath, 61 Cal WN 330].

Page 2 of 4 [s 98] Power to compel restoration of abducted females.—

The Magistrate is empowered to act only when the detention and the purpose are both unlawful. As the section applies only to females it must not be construed so as to make it include purposes which, although not unlawful in themselves, might only become so when entertained towards a child in opposition to the wishes of its guardian, but that the purpose whether entertained towards a woman or a female child must be in itself unlawful [Abraham, 16 C 487, 502; Thakoredas, 4 Bom LR 609]. Unlawful detention which furnishes ground only for a civil action would not come within the section unless the purpose was also unlawful. Thus, section 25 of Guardian and Wards Act confers full powers on the district judge to make orders for the custody of minors, the district Magistrate cannot assume such a jurisdiction for mere detention in the absence of allegation of unlawful purpose [Om Radhe, 40 Cr LJ 698, see however Subbammal, AIR 1948 M 225]. Questions as to legal guardianship must be decided by Civil Courts [Godai, 9 Cal WN 1030; Nathu, 15 Cr LJ 712; Parambath, AIR 1941 M 625 : (1941) 1 Mad LJ 828; Chenga, 10 Cal WN lxxv].

Cf section 97. A woman under 18 unlawfully detained can under section 98 only be set at liberty. But to issue a warrant for her arrest would be illegal. Such a warrant can be issued under section 97 [Khuda Bux, AIR 1951 All 637 : (1951) 21 AWR 458]. [s 98.3] Detention in Nari Niketan.— In the instant case, the detenue was MA, and major of 26 years of age. She was allegedly ill-treated by her parents and wanted to live independently. It was held that such person was free to go wherever she liked and therefore her detention in Nari Niketan was improper [Kumari Ajra Khan v State of UP, 2010 Cr LJ (NOC) 131 (All)].

In the case of major girl recovered from the possession of the accused charged under sections 363 and 366, it would be proper to give the girl in the custody of her father or mother where she would have healthy, fair and moral atmosphere instead of sending her to Nari Niketan [Niki Gupta v State of UP, 2008 Cr LJ (NOC) 1045 : 2008 (4) ALJ 420 (All); see also Qurtbun Nisha v State of UP, 2008 Cr LJ 3233 (3234) : 2008 (4) ALJ 424 (All)]. [s 98.4] Conditions for application of the section.— (i) Only District Magistrate, Sub-Divisional Magistrate or Magistrate of the first class can act. (ii) Age of the girlmust be under 18. (iii) Complainant must be examined on oath. (iv) The detention and purpose must both be unlawful. The exclusion of male children points that the purpose which must be unlawful in itself should have some special reference to sex of the person. [Abraham, sup]. All the conditions must be fulfilled.

When a woman alleged to be abducted is brought before a Second Class Magistrate, order regarding custody passed by him is not invalid [Pradeepan v State of Kerala, 1981 Cr LJ 1356 (Ker) : 1981 Ker LT 664].

The Magistrate has only acted against the warranting procedures established by law in a one-sided manner absolutely without giving any opportunity for the girl to speak out her mind and as though treating her dumbfounded animal, the Magistrate has acted in a biased manner absolutely bereft of any reason or legal consideration but only acting as an instrument of the first respondent for reasons known to himself. Nor under section 98 of Code of Criminal Procedure, 1973 did the Magistrate have any jurisdiction on a major girl who volunteers to quit home and get married with the person of her choice as revealed by documents placed on record and therefore, it has to be held that the Magistrate did not have jurisdiction to pass such orders under section 98 of the Code of Criminal procedures, 1973 [N Balaji v Savithiri, 2004 Cr LJ 2818 : 2004 Mad LJ (Cr) 109 : 2004 (1) Mad LW (Cri) 293 : 2004 (4) Rec Cr R 165 (Mad)]. [s 98.5] Civil dispute.— A dispute of a cure nature (e.g. as to respective rights of custody) cannot be decided under section 98 [Basanti, AIR 1958 R 267 : 1958 Cr LJ 1245 : RLW 1958 Raj 206]. [s 98.6] Complaint.—

Page 3 of 4 [s 98] Power to compel restoration of abducted females.—

Under section 98, complaint on oath is necessary (unlike section 97) [Rajendra v Anukul, AIR 1957 Cal 139 : 1957 Cr LJ 365]. [s 98.7] Unlawful detention...for any unlawful purpose.— Both the detention and the purpose must be unlawful [Abraham, sup, Thakoredas, 4 Bom LR 609; Godai, 9 Cal WN 1031; Secy. SPIC, 43 Cal WN 362] and consent of the person detained is immaterial [Abraham, sup]. In Abraham, sup, the detention was found to be unlawful but not the purpose. On a complaint by a Mahomedan father that her girl aged 15 was abducted, she admitting before the Magistrate that she voluntarily married the alleged abductor and was released in favour of the husband, as under Mahomedan law, a girl attaining the age of puberty can marry without the consent of parents [Md. Idris v State of Bihar, 1980 Cr LJ 764 (Pat) : 1980 Pat LJR 115 : 1980 BLJR 395]. [s 98.8] Unlawful detention.— Expression “illegal” and “unlawful” are synonymous and convey the same idea in language, ordinary and legal. Merely because two expressions mean the same ordinarily in language and law, both cannot be held to have the same meaning when one of them is specifically defined and explained in one statute. Thus, the definition of the expression “illegal” in section 43 of Indian Penal Code, 1860 cannot straightaway be mechanically imported into section 98 of Code of Criminal Procedure, 1973 while considering the ambit of the expression “unlawful” in section 98 [Zeenath KV v Kadeeja, 2007 Cr LJ 600 (Ker) : ILR 2006 (4) Kerala 738 : 2006 (4) Ker LT 905].

An adult detenue cannot be compelled to stay in a Government protection home against her wishes [Vashila v State, 2014 Cr LJ NOC 491].

An application to get custody of a girl alleged to be wife of the applicant from her father’s custody on the ground that she is being detained for being remarried should be made to a Civil Court [Parambath, AIR 1941 Mad 625 : (1941) 1 Mad LJ 828; Chenga, 10 Cal WN 1xxv; see however Tulsidas, AIR 1933 Nag 374]. For an order under section 98, something more substantial is necessary than a mere allegation of the husband that his wife is being detained by her parents for remarrying her [Parambath, sup]. “Unlawful” has the same meaning as “illegal” in section 43 of Indian Penal Code, 1860. The detention of a child by a step-mother who is not entitled to custody is unlawful and entitles the natural guardian to apply under this section [Subbammal, AIR 1948 M 225 : 1947 60 LW 767 : (1947) 2 Mad LJ 461; see however Om Radhe, AIR 1939 SC 152 ante].

Where a girl was entrusted by her mother to a society for upbringing and care, and the mother after some time wanted to get her back, the detention cannot be said to be for an unlawful purpose. An order of restoration without a finding, as to purpose of detention or that the purpose was unlawful, is without jurisdiction [Secy, SPIC, 43 Cal WN 362].

Section 98 is not applicable to all children or all persons unlawfully detained for unlawful purposes. It is only available for rescue and restoration to female species [Zeenath KV v Kadeeja, 2007 Cr LJ 600 (Ker) : ILR 2006 (4) Kerala 738 : 2006 (4) Ker LT 905]. [s 98.9] Procedure and Enforcement of Order.— The complainant must be examined on oath and its omission may vitiate the trial [Dalpat, AIR 1936 All 469 : (1936) AWR 396 : 163 Ind. Cas. 609]. An application under the section does not necessarily allege the commission of an offence; consequently the Magistrate cannot order a preliminary enquiry under section 200 or apply section 203 [Thakoredas, 4 Bom LR 609; Tulsidas, AIR 1933 Nag 374 : ]. A person proceeded against is not an accused and can give evidence [see section 315(2)]. The only order contemplated by the section is one directing restoration of the girl. An order for her production [Abdul Jalil, AIR 1936 All 354 : (1936) AWR 210 : 162 Ind. Cas. 755; Newandram, AIR 1948 SC 97], or a warrant for her arrest [Khuda Buksh, AIR 1951 All 637] is not authorised under the section. An order for restoration of the girl on furnishing a guarantee that she will be properly cared for is illegal [Secy SPIC, sup]. [s 98.10] Use of force.—

Page 4 of 4 [s 98] Power to compel restoration of abducted females.—

It is not required that the order passed should be served. It is capable of execution and, in order to compel compliance, it is open to use such force as may be necessary [Abdul Jalil, sup]. The order of restoration can be enforced by a warrant, if necessary [Om Radhe, AIR 1939 SC 152]. [s 98.11] Calcutta Police.— If for any reason it is impracticable to a (Metropolitan) Magistrate under section 97 or section 98, the Commissioner of Police may, upon information given on oath, issue a search warrant under section 80-A of Calcutta Police Act, for production of the person wrongfully confined, before a Magistrate.

End of Document

[s 99] Direction, etc., of search-warrants.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER VII PROCESSES TO COMPEL THE PRODUCTION OF THINGS > C.—General Provisions relating to Searches

The Code of Criminal Procedure, 1973 CHAPTER VII PROCESSES TO COMPEL THE PRODUCTION OF THINGS C.—General Provisions relating to Searches [s 99] Direction, etc., of search-warrants.— The provisions of sections 38, 70, 72, 74, 77, 78 and 79 shall, so far as may be, apply to all search-warrants issued under section 93, section 94, section 95 or section 97. [s 99.1] Changes.— Section 99 corresponds to old the section 101. [s 99.2] Notes.— An order for search warrant expires when stayed by the High Court beyond the returnable date and a fresh warrant is necessary [Bilas, 22 Cal WN 719 : 46 Ind. Cas. 291].

End of Document

[s 100] Persons in charge of closed place to allow search.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER VII PROCESSES TO COMPEL THE PRODUCTION OF THINGS > C.—General Provisions relating to Searches

The Code of Criminal Procedure, 1973 CHAPTER VII PROCESSES TO COMPEL THE PRODUCTION OF THINGS C.—General Provisions relating to Searches [s 100] Persons in charge of closed place to allow search.— (1) Whenever any place liable to search or inspection under this chapter is closed, any person residing in, or being in charge of, such place, shall, on demand of the officer or other person executing the warrant, and on production of the warrant, allow him free ingress thereto, and afford all reasonable facilities for a search therein. (2) If ingress into such place cannot be so obtained, the officer or other person executing the warrant may proceed in the manner provided by sub-section (2) of section 47. (3) Where any person in or about such place is reasonably suspected of concealing about his person any article for which search should be made, such person may be searched and if such person is a woman, the search shall be made by another woman with strict regard to decency. (4) Before making a search under this chapter, the officer or other person about to make it shall call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situate or of any other locality if no such inhabitant of the said locality is available or is willing to be a witness to the search, to attend and witness the search and may issue an order in writing to them or any of them so to do. (5) The search shall be made in their presence, and a list of all things seized in the course of such search and of the places in which they are respectively found shall be prepared by such officer or other person and signed by such witnesses; but no person witnessing a search under this section shall be required to attend the court as a witness of the search unless specially summoned by it. (6) The occupant of the place searched, or some person in his behalf, shall, in every instance, be permitted to attend during the search, and a copy of the list prepared under this section, signed by the said witnesses, shall be delivered to such occupant or person. (7) When any person is searched under sub-section (3), a list of all things taken possession of shall be prepared, and a copy thereof shall be delivered to such person. (8) Any person who, without reasonable cause, refuses or neglects to attend and witness a search under this section, when called upon to do so by an order in writing delivered or tendered to him, shall be deemed to have committed an offence under section 187 of the Indian Penal Code (45 of 1860). [s 100.1] Changes.— (1) Sub-sections (1), (2) and (3) correspond to sub-sections (1), (2) and (3) of the old section 102.

Page 2 of 11 [s 100] Persons in charge of closed place to allow search.— (2) Sub-sections (4), (5), (6), (7) and (8) correspond to sub-sections (1) to (5) of the old section 103.

The addition of the words in sub-section (4) has been made (i) to ensure that the witnesses for search are disinterested persons, and (ii) to provide that the witnesses may be of any other locality if respectable and independent witnesses of the locality are not available or are not willing to be witness of search. [See Joint Committee Report (1970) clause 1]. [s 100.2] Scope and application of section 100.— The section applies to formal searches under warrants under sections 93 and 94. In an emergency, e.g. when a man is apprehended recently for murder under very clear circumstances, when the police are not going in for the purpose of a search for any specified purpose, but for a general investigation, there is no provision which imposes on them the duty of publicly searching respectable citizens or themselves before the public. It is not surprising that in such an emergency, the police officer should at once go in and see what are the contents of the house into which the man had bolted himself in [Madiga, AIR 1945 M 523 : 1945 2 Mad LJ 249].

The evidence regarding recovery and seizure of article at instance of accused cannot be ignored only for absence of any independent witness. [State Government of NCT of Delhi v Sunil, 2001 Cr LJ 504 (SC) : (2001) 1 SCC 652 : 2001 (1) Crimes 176 : 2000 AIR SCW 4398].

The procedure under sections 99 to 101 of Code of Criminal Procedure, 1973 is not required to be followed by officer of Electricity Board detecting the offence [Gopalbhai Chandubhai Rana v State of Gujarat, 2008 (3) Guj LR 2026 (Guj) : 2008 Cr LJ 4034].

The accused was alleged to have possessed charas, police did not intend to search any place. The respondent was not present in or about any place intended to be searched. It was held that section 100(4) was not applicable [Sohan Lal v State of HP, 2008 Cr LJ (NOC) 499 (HP)]. [s 100.3] Object.— The object of sub-sections (4)–(8) is to ensure an honest and genuine search [Nirmal, 42 A 67, 69; Ma Thein, AIR 1936 R 15] and to prevent trickery by “planting” the things to be “found” at searches [Ah Tuch, 4 Cr LJ 393; Abdullah, 27 Cr LJ 73; Ramesh, 41 C 350; Balai, AIR 1930 Cal 141 : 124 Ind. Cas. 486; Wan Ma, AIR 1927 All 241 : 99 Ind. Cas. 926 : (1927) ILR 49 All 402]. Its provisions should be strictly complied with [Ganeshi, 2 OC 99; Nga San, 16 Cr LJ 264]. For greater certainty and security, it has been made obligatory that—

(1) at least two independent and respectable witnesses of the locality or of any other locality, if no such inhabitant of the said locality is available or is willing to be a witness shall be asked to be present; (2) the search shall be conducted in their presence and the list of things seized should be signed by the witnesses; (3) the occupant of the place or his representative shall be allowed to attend during the search and a copy of the search list signed by the witnesses shall be given to him; (4) when any person is searched under section 100(3), a copy of the list of things taken possession of shall be given to him.

The object of section 100 is to ensure confidence in neighbours and in the public generally that anything incriminating, which may be found in the premises searched, was really found and was not planted. Sub-section (4) refers only to the search of place. It is obligatory on the part of the police officer to call on and get two or more respectable inhabitants of the locality to be witnesses of the search. These witnesses must be called before the search is started. In this case, this precaution has not been taken at any time of the recoveries, effected from different places at the instance of any of the accused, even though places were such where the respectable persons of the locality were available. The persons who have been joined on one or two occasions

Page 3 of 11 [s 100] Persons in charge of closed place to allow search.— have not supported the prosecution case. This makes the recovery and its identification doubtful. [Ram Kishore v The State, 1990 Cr LJ NOC 118 (Delhi) : 1990 Rajdhani LR 154 (DB) (Malik Sharifuddin and MK Chawls, JJ.)].

Clauses (4) to (8) of section 100 stipulate the procedure with regard to search in the presence of two or more respectable and independent persons preferably from the same locality. The following mandatory conditions can be culled out from section 100 of the code for a valid Panchnama: (a) All the necessary steps for personal search of officer (Inspecting officer) and panch witnesses should be taken to create confidence in the mind of the court as nothing is implanted and true search has been made and things seized were found real; (b) Search proceedings should be recorded by the investigating officer or some other person under the supervision of the panch witnesses; (c) All the proceedings of the search should be recorded very clearly stating the identity of the place to be searched, all the spaces which are searched and descriptions of all the articles seized, and also, if any sample has been drawn for analysis purpose that should also be stated clearly in the Panchanama; (d) The investigating officer can take the assistance of his subordinates for search of places. If any superior officers are present, they should also sign the Panchanama after the signature of the maininvestigating officer; (e) Place, Name of the police station, Officer rank (investigating officer), full particulars of panch witnesses and the time of commencing and ending must be mentioned in the Panchnama; (f) The panchnama should be attested by the panch witnesses as well as by the concerned investigating officer; (g) Any overwriting, corrections, and errors in the Panchnama should be attested by the witnesses; (h) If a search is conducted without warrant of court under section 165 of the Code, the investigating officer must record reasons and a search memo should be issued [Yakub Abdul Razak Memon v State of Maharashtra, 2013 (4) Scale 565 : JT 2013 (5) SC 142 : (2013) 2 Mad LJ 129]. [s 100.4] Non compliance.— The rule as to search of the person by the police officers and search witnesses before entering the house should not be neglected, so that there may be no suspicion that anything has been planted [Md. Ali, 55 A 557; Sohan, 34 Cr LJ 568]. The witnesses shall not be allowed to enter the room without being searched [Sultan, 59 Cal WN 391]. Failure to observe the formalities of personal search of the searching officer and witnesses render the recovery highly suspicious [State of Bihar v Kapil Singh, AIR 1969 SC 53 : 1969 Cr LJ 279]. When the failure to comply strictly with the provisions of the section is satisfactorily explained, it does not make the search illegal [Satagopala, 23 Mad LJ 445; Johnson, AIR 1957 AP 829 : 1957 Cr LJ 1210].

In a Bombay case, in the Panchnama, column about delivery of copy to accused had not been signed (though the Panchnama said that copy had been so delivered). It was held that this minor non-compliance did not vitiate the trial. [Joseph Fernandes v State of Goa, 1996 Cr LJ 822, 823 (Bom) : 1996 (1) ECR 499]. [s 100.5] Search Party.— Search of members of search (though not required by the section) is done in practice. [See State of Bihar v Kapil Singh AIR 1969 SC 53 : 1969 Cr LJ 279 : 1968 (3) SCR 810; State v Mohan (1961) Cr LJ 828 (Orissa); [see also “Non-compliance” above]. [s 100.6] Illegal Search.— As stated above [see “Non-compliance”], not calling the witnesses weakens the evidence. [Malak Khan v State, AIR 1946 PC 16, 19; Velayudhan AIR 1963 Ker 8 (FB)]. But it does not, in itself, affect the validity of the search on conviction [Bai Radha v State of Gujarat, AIR 1970 SC 1396 : 1970 Cr LJ 1279 : (1969) 1 SCC 43; Govindan AIR 1959 Mad 544]. [s 100.7] Trap witnesses.— Practice of the police taking with them witnesses to trap the accused has been deprecated [Kamalaben v State, AIR 1982 SC 1189 (Suppression of Immoral Traffic Act)]. [s 100.8] Copy of memo.— Where the accused was not supplied with copy of Mahazar as required by section 100 of the Code and the notification showing the “belt area” within which paddy should not be procured without a valid permit was also not filed, then the area within which the accused has procured cannot be held as prohibited area and, therefore, the order of confiscation against him cannot be upheld [Selvan v The State, 1991 Cr LJ 1942 (Mad) : 1991 Mad LW (Cri) 83 (Swamidurai, J.)]. [s 100.9] Signature of accused.—

Page 4 of 11 [s 100] Persons in charge of closed place to allow search.— Section 51 does not require that when search of an arrested person is made, signature of the person searched shall be taken on the memo of recovery or that its copy should be given to him. Only a receipt for the article is to be given to such person. In the instant case, two public witnesses were not present at the time of the search and seizure. Section 100 provides that the recovery memo should be signed by the witnesses and copy given to the person searched. But the section applies only when search is conducted under a Search Warrant. In any case, (minor) irregularities do not vitiate the search or trial [Mahadeo v The State, 1990 Cr LJ 858 (All) : 1989 All LJ 475 : 1989 All WC 1219 (GB Singh, J.)]. [s 100.10] Order to be passed.— An order cannot be passed to hand over custody of an adult girl against her wishes. [Dhapu v Puri, AIR 1959 MP 356; Cf. Basanti v Mohanlal, AIR 1958 Raj 267]. [s 100.11] Section 100(4)—Other liability.— Section 100(4), by allowing witnesses from other locality, avoids the practical difficulty of getting them from locality [State of Maharashtra v PK Pathak, AIR 1980 SC 1224 : 1980 Cr LJ 923 : (1980) 2 SCC 259 : 1980 SCC (Cri) 428].

At the highest, the regularity in the search and recovery in so far as the terms of section 100(4) of Code of Criminal Procedure, 1973, have not been fully complied with, does not affect the legality of the proceedings. It only affects the weight of evidence, which is a matter for the court to decide [State of HP v Sukh Ram, 2003 Cr LJ 219 (221) : 2003 (1) Cur Cr R 447 (HP)]. [s 100.12] Search of person.— Section 100 applies only to search of places and not of persons [Sunder Singh v State of UP, AIR 1956 SC 411 : 1956 Cr LJ 801; Naisukh, AIR 1933 N 99; Aung Kim, AIR 1931 rule 333]; e.g., seizure of shoes worn by the accused when he was with the investigating officer. [Sunder Singh v State of UP, AIR 1956 SC 411 : 1956 Cr LJ 801]. Search of a woman shall be made by another woman with strict regard to decency [See also section 51(2)]. [s 100.13] Use of force when search is resisted.— It is a matter of doubt if chapters 5 and 7 of the Code can be read as an exhaustive enumeration of all the powers of a search party. It cannot be conceded that when obstruction is offered against a lawful search, the search party has no right to remove obstruction by employment of reasonable force, and remedy is only to resort to the police or the magistracy with a complaint. That would defeat the very object of search as books might be secreted or destroyed in the meantime. [s 100.14] Proof.— Search list should be proved by calling one of the witnesses [Abdulla State, 52 Cr LJ 1058 (Mad)].

Though, in a case, no compliance of mandatory provisions of section 100(4) was made at the time of search and seizure in question by investigating officer because no independent witnesses supported this action of the investigating officer, yet it was not vitiated because from the accused side it was not argued that the impugned act of search and seizure did any injustice to accused person [Som Nath v State of Haryana, 1995 Cr LJ 3322 Punjab and Haryana]. [s 100.15] Sub-section (4)—Witnesses.— Witnesses must not stand outside the place of search [Dinkar, Cr LJ 927; Sultan, (1954) 59 Cal WN 393].

The witnesses may be from other locality, if respectable witnesses of the locality are not available. [s 100.16] Presence of witnesses.— The presence of witnesses at a search is always desirable and their absence will weaken and may sometimes destroy the acceptance of the evidence as to the finding of the articles [Malak, 72 A 305 : AIR 1946 PC 16]. “Respectable” means in substance impartial and independent persons not connected with officialdom or the police whose evidence may be relied upon [Kan Haw, 12 Cr LJ 251; Kwe Haw, 7 Cr LJ 479; Sit, 11 Cr LJ 746; Kan Taw, 4 Bur LT 91; Sher Ali, 23 Cr LJ 609]. Respectability does not connote any particular status or wealth

Page 5 of 11 [s 100] Persons in charge of closed place to allow search.— or anything of that kind [Ashfaq, AIR 1936 All 707]. In the present Code, the word “independent” has been added before “respectable”. It was observed by the Supreme Court in Poonawala v S, Cr. App. No. 122 of 1954 (20 December, 1957) that “this is one of those cases where the rule in regard to search witnesses becomes applicable and importance must be attached to the lack of that class of search witnesses which are envisaged by the Code of Criminal Procedure, 1973, section 100”.

Presence of witnesses (section 100) lands creating and gives support to the testimony of official witnesses. But section 100(4) is not mandatory. The testimony of witnesses given on oath cannot be discarded merely because they are official witnesses [Krishan Lal v State of Haryana, 1996 Cr LJ 1401, 1403 (P&H)]. [s 100.17] Witnesses of the locality.— It is impossible to define locality precisely [Darshan, AIR 1941 Lah 297]. In a densely populated town, it means persons in the immediate vicinity [Ma. Htway, AIR 1925 Rangoon 205]. Locality may also well include villages within 3 or 4 miles [Mastram, AIR 1931 Oudh 115 : (1931) ILR 6 LUCK 472; Mahadeo, 35 Cr LJ 397; Rajabather, sup].

The mere fact that the search witnesses were not local persons does not vitiate the search, especially when no independent and respectable witness of the locality was available as they were unwilling to join the search and the investigation of the case [Narender v State, 2009 Cr LJ 3613 (3621) (Del)].

If the witnesses are respectable or reliable, it is immaterial, if they belong to a different locality as it is merely an irregularity [Gopi Mahton, sup; Sit, sup; Ghandalal, 36 Cr LJ 704; Raghunath, AIR 1932 Bom 160; Abdul Hafiz, AIR 1926 All 188 : 92 Ind. Cas. 441; Bhanulal, AIR 1958 Gau 40 : 1958 Cr LJ 1549; State of Mysore v Raji, AIR 1967 Mys 47 : 1967 Cr LJ 553]. Where in spite of the availability of respectable persons in the neighbourhood, questionable persons are brought from different locality, an adverse inference is justified [Sadlu, AIR 1934 All 374].

Failure to call inhabitants of the locality does not itself render a search illegal [Raman, 21 M 83; Abdullah, 27 Cr LJ 73; Sadagopalacharlu, 13 Cr LJ 763]. Sometimes the attitude of the men nearby does not make it worth while calling them as witnesses [Gopi Mahton, AIR 1932 Pat 66 : (1931) ILR 10 PAT 821 : 136 Ind. Cas. 60]. Independent search witnesses wherever available have to be called [Sultan, 59 Cal WN 391]. If the witnesses are not respectable, it would not invalidate the search, but would only affect the weight of the evidence [Sunder Singh v State of UP, AIR 1956 SC 411 : 1956 Cr LJ 801]. A witness of search other than the one from the locality, even if he has been brought by the investigating agencies along with them, cannot be disbelieved only on that ground where there is anything in his evidence to discredit his testimony [Ranny v State of Maharashtra, AIR 1998 SC 1251 : 1998 Cr LJ 1638 : (1998) 3 SCC 625 : 1998 (2) Crimes 65]. Where there is no independent witness from the locality, the prosecution must offer reasonable explanation that not only there were many residences in that locality but also large number of people assembled at the time of recovery, the selection of an outsider as a seizure witness necessarily castes doubts [State v Arun, AIR 2003 SC 801 : 2003 Cr LJ 894 : (2003) 2 SCC 202]. The gist is that honest efforts should be made to secure the presence of respectable persons of the locality, but, if no such witness is available, the search will not be vitiated for that reason only [Pandu Inderjit, AIR 1947 All 165] and each case must be decided upon its own facts and circumstances [Daulat Ltd, AIR 1933 Lah 809; Gopalpur Tea Co Ltd v Corp of Calcutta, AIR 1966 Cal 51 : 1966 Cr LJ 135 : 70 Cal WN 1005]. Where the smuggled articles were recovered by the customs authorities from stones at the seashore and also from bushes on an island, which had to be reached through a mechanical vessel taking oneand-a-half hour, it would neither be practical nor reasonable to except any person of the locality to be a witness. A witness approached by the police and customs authorities and accompanying them to witness the search, made at the instance of the accused, would show that he was not in any way interested or unreliable [State of Maharashtra v PK Pathak, AIR 1980 SC 1224 : 1980 Cr LJ 923 : (1980) 2 SCC 259 : 1980 SCC (Cri) 428]. As far as possible, the provisions should be complied with. It is not meant that the police can have two or three persons accompanying them wherever they go for search [Parmarti, AIR 1957 AP 286 : 1956 All LT 827 : 1957 Cr LJ 830].

Both the panchas did not support the prosecution case inasmuch as they refused to identify the accused. There was nothing in their evidence to suggest that they were not local panchas. They have not even been distantly

Page 6 of 11 [s 100] Persons in charge of closed place to allow search.— suggested that they were the usual panchas and stock witnesses of local police and were not residents of the area wherefrom the Ganja was recovered. The plea that local panchas were not added was rejected [Ghasita Sahu v State of Maharashtra, 2008 Cr LJ 2060 (2061) (SC) : AIR 2008 SC 1425 : 2008 (1) SCC (Cri) 605 : 2008 AIR SCW 1435 (1436) : (2008) 3 SCC 52].

The provision in the old Code requiring the witnesses to be inhabitants of the locality had created difficulties. Changes have been made providing that witnesses may be of any other locality, if respectable and independent inhabitants of the locality are not available or are not willing to be witnesses. [s 100.18] Respectable witness.— Dismissed constable [Inder Dutt, AIR 1931 Lah 408], or a person convicted of serious crime [Ram Ch., AIR 1935 All 520 : (1935) AWR 313 : 154 Ind. Cas. 635; Haradhan, A 1938 C 701], or a person belonging to the rival party [Pandu Inderjit, AIR 1947 All 165] or a friend of the police officer [Ma Htway, 26 Cr LJ 827] is obviously unsuitable as a search witness. The fact that a person was a witness on a previous occasion is not by itself a reason for disbelieving [Nainsukh, AIR 1933 Nag 99; Mahadeo, AIR 1934 Oudh 90]. Where the witnesses were involved in some criminal cases, lived near police station and were interested in election of a candidate of the political party other than that of the accused, their evidence should be approached with care and caution [Kaur Sain v State of Punjab, AIR 1974 SC 329 : 1974 Cr LJ 358 : (1974) 3 SCC 649 : 1974 SCC (Cri) 179].

Where the provisions of section 100 (viz., respectable witnesses of the locality) are departed from, the burden is on the prosecution to explain why it was not possible to comply with them [Bisnath, AIR 1950 All 147 : (1950) 20 AWR 404; Balai, AIR 1930 Cal 141 : 124 Ind. Cas. 486]. Where no attempt is made to have respectable witnesses of the locality, it is not a legal search [Jainand, AIR 1949 All 291; Tittar, AIR 1953 All 506 : (1953) 23 AWR 159].

In respect of an offence under the Narcotic Drugs and Psychotropic Substances Act, 1985, section 20(b) (possession of narcotic drugs), drugs were recovered from the hotel room of the accused. Key of the room was not with the accused but was collected from the co-accused by the police, at the time of making search. Nor was the key of the box from which drugs were recovered in possession of the accused. Link between seizure and exclusive actual possession of drugs by the accused was not established. It was held that the accused could not be convicted under section 20(b). [Jeevanchand Baliram Thakur v State of Goa, (1988) Cr LJ 1878 (Bom) : 1988 (1) Crimes 447 : 1988 EFR 201 : 1988 (1) FAC 102. See also Abdul Sattar v State, (1989) Cr LJ 430 : 1988 (2) Crimes 812 : 1989 (1) Bom CR 389 : 1989 (1) FAC 62 (Bom) (DB)].

Arrest of the accused and recovery of knife from his person by police took place. No effort was made by police to join any independent witness, though several persons were present. It was held that at least the investigating officer should have made an earnest effort to join the independent witnesses and that was a circumstance throwing doubt on the arrest or the recovery of the knife from the person of the accused. [Pawan Kumar v Delhi Administration, 1989 Cr LJ 127 : 1988 (1) Crimes 172 : 1988 (2) Rec Cr R 421 : 1987 Chand Cr C 585 (Delhi High Court) (MK Chawla, J.)].

In a Bombay case, on the facts, it was held that the evidence of the Pancha who was a Home Guard was reliable and it was corroborated on all essential points by other witnesses and there was nothing on record to make doubtful his integrity and independence. [Abdul Sattar v State, 1989 Cr LJ 430 : 1988 (2) Crimes 812 : 1989 (1) Bom CR 389 : 1989 EFR 283 (Bom) (DB)].

It is advisable to have two independent witnesses. If a case, particularly under Narcotics Act, is to be proved through police officers and no independent witness is examined, such evidence is to be scrutinised carefully and is, ordinarily, doubtful. However, the mere fact that witnesses who are not residents of the locality are taken by a raiding party to witness a raid is not sufficient to vitiate the proceedings. Similarly, even if police officers are examined to prove the case, that will not itself constitute fatal infirmity, for that would warrant and require a very cautious and careful examination of their evidence, but not discarding it summarily on that count. [Abdul Sattar v State, 1989 Cr LJ 430 : 1988 (2) Crimes 812 : 1989 (1) Bom CR 389 : 1989 EFR 283 (Bom) (DB)].

Page 7 of 11 [s 100] Persons in charge of closed place to allow search.—

Under the Prevention of Food Adulteration Act, 1954, if there are less than two witnesses or the witnesses are not respectable, the trial is not vitiated, only consequences of the illegality being that the court will be inclined to examine carefully the evidence regarding seizure [Public Prosecutor v Pasala Jogi, AIR 1966 AP 96 : 1966 Cr LJ 393 : 1965 2 Andh WR 359 : 1965 Mad LJ (Cri) 815; The Puri Municipal Council v Bana Das, AIR 1967 Ori 206 : 1967 Cr LJ 1675 : 33 Cut LT 407; Bupdeo Santholia v Cuttack Municipality, AIR 1968 Ori 12 : 1968 Cr LJ 73 : 34 Cut LT 1145; Patna Municipal Corp Patna v Dularchand Sao, AIR 1964 Pat 565 : 1964 (2) Cr LJ 715 : 1964 BLJR 754; Ram Das v The State, AIR 1969 All 109 : 1969 Cr LJ 347 contra : Sadhu, AIR 1962 P H 548 : (1961) ILR 2 Punjab and Haryana 803].

In the instant case, there was nothing on record to show that the official witness examined to prove the search and recovery had any animus or hostility against the accused. The cross-examination had not elected anything worth the name which could possibly cause a dent in the prosecution case [State of HP v Sukh Ram, 2003 Cr LJ 219 (221) : 2003 (1) Cur Cr R 447 HP]. [s 100.19] Provisions of sub-section (4), if mandatory.— In the instant case, as soon as the secret information was received, the investigating officer considered that his first and foremost duty was to conduct raid so as to apprehend the culprits red-handed. He also knew that in case he consumed time in associating two witnesses of the locality, the possibility of leakage of secret information, resulting into abscondence of the accused and thereby defeating the very purpose of raid, could not be ruled out. The non-joining of witnesses of the locality did not in any way cause even a semblance of prejudice to the accused. The provisions of section 100(4) of Code of Criminal Procedure, 1973 are not mandatory in nature. The search may be irregular or illegal, but the forged U.S. dollars recovered, in pursuance of such a search, may constitute an offence. Irregularity or illegal search does not mean that the recovery was effected in pursuance thereof [Surinder Pal v State of Punjab, 2009 Cr LJ 4100 (4105) (P&H) : 2010 (2) RCR (Criminal) 19].

Issuance of written order under the provision of section 100(4) of Code of Criminal Procedure, 1973 is in order to enforce attendance of such persons who do not want to act as search witness without reasonable cause, and the police team comes to the conclusion that the inhabitants of the locality are refusing or neglecting to attend and be witness to a search under this section without reasonable cause. If the police team is satisfied that the inhabitants of the locality have reasonable and valid reasons for not attending the searches, then issuance of orders to such inhabitants under section 100(4) is not mandated. The word used in section 100(4) of Code of Criminal Procedure, 1973 is “may”, which means it is the discretion of the team to decide whether to issue such order or not [CBI v Unkown Officers of Special Frontier Force, Crl. M.C. 5144/2014 & Crl. M.A. No. 17580/2014 decided by the Delhi High Court on 17 April 2015.] [s 100.20] Sub-section (5) : Preparation of Search List—Search list shall.— (1) be made in the presence of witnesses; (2) specify all things seized and where found, and (3) be signed by the witnesses. Refusal to sign is not punishable under section 287, Indian Penal Code, 1860 [Ramaya, 26 M 419; Ram Pd., 17 P 632]. How search lists are to be made, numbered and the items proved [Rafiquddin, 39 Cal WN 368]. Search list should be prepared by describing the articles seized properly. Where a circle inspector made a significant error in a material part in describing the article seized, namely, he wrote “brass bangles” for “bronze choirs”, and further articles were not kept under seal, his evidence in support of the seizure cannot be relied upon [Nabakumar Das v State of WB, AIR 1974 SC 777 : 1974 Cr LJ 512 : (1974) 3 SCC 582]. Search lists are made for fastening possession of articles on a particular person. So separate search should be made with respect to each person. Search lists are useless, if these precautions are not taken [Chandrama, (1951) 1 Cal 539 : AIR 1955 NUC (C) 1066].

Ordinarily, the list is proved and exhibited. But section 91 of Evidence Act does not exclude oral evidence of what took place at the time of search [Elamathan, 33 M 416] nor does it bar the giving of evidence other than the searchlist regarding the things seized and the place in which they were found [Solai Naik, 34 M 349 FB; Md. Bashir, AIR 1932 All 185; Bachan, AIR 1927 Lah 149]. [s 100.21] Calling search witnesses.— Some cases have held that it is the duty of the prosecution to call search witnesses [Munni, 9 Cal WN 438;

Page 8 of 11 [s 100] Persons in charge of closed place to allow search.— Balai, 31 Cr LJ 667; Md Bashir, 33 Cr LJ 943]. But the last sentence of sub-section (5) suggests that it is not imperative that search witnesses should be called. They are intended to induce persons to become witnesses. The court has the discretion to require or not their attendance in court [Harinarayan, AIR 1928 C 27, FB : 29 Cr LJ 49 (dissenting from Munni, sup); see also Mosadi, AIR 1933 Pat 100; Galo Mandala Rama Rao v State of Jharkhand, 2004 Cr LJ 1738 (1753) (Jhar) : 2004 AIR Jhar HCR 453 : 2004 (1) Cur CrR 200] that search witnesses need not ordinarily be called and it is for the prosecution to explain why it desires them to be called]. The contention that search witnesses should have been called was also ruled out by the Judicial Committee on the ground that the express terms of sub-section (5) do not require it [Malak, 72 IA 305 : 50 Cal WN 145, 150 : AIR 1946 PC 16]. If it is intended to fortify the police evidence, the witnesses must be called and the accused given an opportunity to cross-examine them [Rustam, AIR 1932 Bom 181 : 1932 (34) BomLR 267 : 136 Ind. Cas. 868]. The evidence of search officer if found truthful can be accepted without corroborating [Galo Mandala Rama Rao v State of Jharkhand, 2004 Cr LJ 1738 (1753) (Jhar) : 2003 (3) East CrC 372 : 2004 (1) Cur CR 200]. Value of panchnama and its use [Mohanlal, AIR 1941 Bom 149 : 1941 (43) BomLR 163]. Where panchas are kept at the time of search, the evidence of the police officer should ordinarily be corroborated before conviction [Shanwar, AIR 1950 Bom 267 : 1950 (52) BomLR 38; Raijibhai, AIR 1960 G 24]. Practice of obtaining signature of the accused to panchnama is highly objectionable [Narayan Rao v State of AP, AIR 1959 AP 313 : 1959 Cr LJ 689; Narriah, AIR 1957 SC 737 : 1958 SCR 283 : 1957 Cr LJ 1320]. Mere fact that search witnesses have not been examined does not render the search illegal [Bachan, AIR 1927 Lah 149 : 99 Ind. Cas. 49].

Where the search witnesses have turned hostile, the evidence of the investigating officer if found reliable would not be rejected on that ground alone. Witnesses do not support the prosecution case [Galo Mandala Rama Rao v State of Jharkhand, 2004 Cr LJ 1738 (1753) (Jhar) : 2004 AIR Jhar HCR 453 : 2003 (3) East CrC 372]. [s 100.22] Sub-section (6)—Occupant of place.— The occupant of the place (i.e., the person residing in or in-charge of the place and not every one who may happen to be there at the time) must be given the option of being present at the search. If he is arrested during the search and taken out of the room, it is a gross violation of the rule [Ramesh, 41 C 350; Bhikugir, AIR 1932 All 449]. So, if he is kept out and causes hurt to the police officer resisting him, when trying to enter the place of search, he is not guilty under section 332 of Indian Penal Code, 1860 [Bhikugir, sup]. Dissenting from [Ramesh sup], it has been held that “permitted” does not mean that option of presence shall be given [Hari Narayan, AIR 1928 C 27 FB : 29 Cr LJ 149]. [s 100.23] Evidence of searching officer.— How far the court can rely upon the testimony of the search officer where the witnesses are not examined, or though examined do not support the prosecution, will depend on the facts of each case [Nabakumar Das State of WB, AIR 1974 SC 777 : 1974 Cr LJ 512 (SC) : (1974) 3 SCC 582]; [State v Rajasthan, AIR 1960 Guj. 24; Emperor v Shanwar, AIR 1950 Bom 267; Ahmed Noor Khan v State of Assam, AIR 1972 Gau 7 : AIR 1972 Assam 7 : 1972 Cr LJ 779; State v Anil, AIR 1952 Cal 1154]. [s 100.24] Resistance to Search.— Resistance to illegal search will not be an offence [State of Rajasthan v Rehman, AIR 1960 SC 210 : 1960 Cr LJ 286; [Bai Radha v State of Gujarat, AIR 1970 SC 1396 : 1970 Cr LJ 1279 : (1969) 1 SCC 43]. Further right of private defence can be exercised if the police officer is not acting in good faith as defined in section 52 of Indian Penal Code, 1860 [Pagla Baba v State, AIR 1957 Ori 130 para 40–44C. The Orissa judgment contains exhaustive discussions]. [s 100.25] Admissibility of find in irregular or illegal search.— The test of admissibility of evidence lies in relevancy, unless there is an express or necessarily implied prohibition in the Constitution of India or other law evidence obtained as a result of illegal search or seizure is not liable to be shut out [Pooran Mal v Director of Inspection (Investigation), AIR 1974 SC 348 : (1974) 1 SCC 345].

An illicit article seized from the person of an accused, during search conducted in violation of the safeguards provided in section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985, cannot by itself be used as admissible evidence of proof of unlawful possession of the contraband on the accused. Any other material/ article recovered during that search may, however, be relied upon by the prosecution in other/independent proceedings against an accused [State of Punjab v Baldev Singh, AIR 1999 SC 2378 : 1999 Cr LJ 3672 (SC)].

Page 9 of 11 [s 100] Persons in charge of closed place to allow search.—

The effect of irregularities in conducting search is only to necessitate a careful scrutiny of the evidence of search, and, if it is believed, they have no other effect [Ramesh, 41 C 350; Md. Bashir, 33 Cr LJ 943; Barindra, 37 C 467, 500; Banamali, AIR 1940 Cal 85; Abdul Hafiz, AIR 1926 All 188 : 92 Ind. Cas. 441; Dinkar, AIR 1930 Bom 169 : 1930 (32) BomLR 344 : 125 Ind. Cas. 713 : ILR 1930 54 Bom 471; Aung Kim, AIR 1941 Rangoon 333; Solai Naik, 34 M 349, FB; Allahabad, ILR 35 A 358; Mamtazuddin, 1947 (1) Cal 439; The State v Satyanarayan Mallik, AIR 1965 Ori 136 : 1965 (2) Cr LJ 112 : 31 Cut Lt 172; Pyli Yacoob, AIR 1953 Ker 466 : AIR 1953 Ker 466 : 1953 Cr LJ 1 670; Kochan, AIR 1961 Ker 8 FB; Ramrao, AIR 1951 Nag 237 : [1951] ILR Nag 349; Raoji, AIR 1956 Bom 528 : 1956 Cr LJ 981]. Non-compliance with the provision of section 100(4) would not render the search illegal. If the witnesses were not respectable, it would not affect the legality of the proceedings, but would only affect the weight of the evidence in support of the search [Sunder Singh v State of UP, AIR 1956 SC 411 : 1956 Cr LJ 822]. If the court is satisfied as to the finding of articles, irregularity of search is no bar to conviction [Bachha, 57 A 256; Chwa Hum, AIR 1933 Rangoon 146 : (1933) ILR 11 RANG 107 : 143 Ind. Cas. 824; Kochan, AIR 1961 Ker 8, FB]; but where there is reasonable doubt as to such finding, there should be an acquittal [Dinkar, AIR 1930 Bom 169 : 1930 (32) BomLR 344 : 125 Ind. Cas. 713 : ILR 1930 54 Bom 471; Mastram, AIR 1931 Oudh 115 : (1931) ILR 6 LUCK 472; Bishnath, AIR 1950 All 147 : (1950) 20 AWR 404]. Non-compliance will vitiate the search but the property recovered may be used for the purpose of proving any contravention of law. The recovery by itself will not be illegal [The State v Santprakash, 1976 Cr LJ 274, FB (All) : 1976 All LJ 100 : 1976 All (Cr C) 326]. Irregularity in panchnama [Mamchand& Co, AIR 1969 Cal 431 : [1970] 76 ITR 217 (Cal)] or absence of panchnama [The State v Kuppuswamy Meergesh, AIR 1967 Bom 199 : 1967 Cr LJ 731 : 1964 Mah LJ 188 : 66 Bom LR 5] does not vitiate search. In the absence of anything to show that the documents were either replaced or tampered with, the irregularity in not placing identification marks on several documents will not by itself make the search mala fide [Seth Bros., AIR 1970 SC 292 : [1969] 74 ITR 836 (SC) : (1969) 2 SCC 324 : [1970] 1 SCR 601]. Evidence found in illegal search is not inadmissible [Abbasbhai, 27 Cr LJ 503; Mamtazuddin, ILR 1947 1 Cal 439; Indubhusan, AIR 1955 C 129; Ramrao, AIR 1951 Nag 237 : [1951] ILR Nag 349; Lalbahadur, AIR 1957 Gau 74; Balwant, AIR 1969 Delhi 91 : [1969] 71 ITR 550 (Delhi) : (1968) ILR 0 Delhi 193]. When evidence, as to find in a search though irregularly conducted, is accepted by the court, the Supreme Court will not interfere [Kamalabai Jethamal v State of Maharashtra, AIR 1962 SC 1189 : 1962, Supp (2) SCR 632 : 1962 (2) Cr LJ 273; Radha Kishan v State of UP, AIR 1963 SC 822 : 1963 (1) Cr LJ 809; Patna Municipal Corp Patna v Dularchand Sao, AIR 1964 Pat 565 : 1964 (2) Cr LJ 715 : 1964 BLJR 754]. The principle is that admissibility of evidence is not affected by the illegality of the means by which it has been obtained [see Kuruma, 1955 (1) All ER 236 PC]. Return of stock recovered in a search made in contravention of imperative procedure as to calling of witnesses [Mangudi, AIR 1971 Mad 275 (R.S. Jhaver, AIR 1968 SC 59 folld) : (1971) 2 Mad LJ 27; (Bai Radha v State of Gujarat, AIR 1970 SC 1396 : 1970 Cr LJ 1279 expld)] or contravention of procedure contemplated in section 100 [Sundaram and Co, AIR 1972 Mad 313 : (1972) 1 Mad LJ 42] can be claimed. Resistance to officer who ignores the provisions of section 100 is no offence [Nirmal, 42 A 67]. See also notes to section 93 ante.”Illegal Search”.

Contravention of section 100(4) does not render the search defective and the evidence does not become inadmissible. [Karnali Singh v State of Punjab, (1983) Cr LJ 1218 : ILR (1983) 1 P&H 9 (P&H)]. However, where no efforts were made by the officer to call upon search witnesses, it was held that because of noncompliance with section 100(4) by the police, the accused was entitled to the benefit of doubt. [Prem Lata v State of HP, (1987) Cr LJ 1539 : 1986 Sim LC 258 : 1987 (1) Crimes 322 (HP)]. See also notes to section 93, ante, Illegal Search. [s 100.26] Search under other Acts.— The section in terms applies not only to searches under the Code but also to searches under other Acts, e.g., section 14 of Opium Act [Kalikumar, AIR 1927 Rangoon 170 : 100 Ind. Cas. 980]. It also applies to search and seizures under the Prevention of Corruption Act, 1954 [State of Maharashtra v Popat Panchand Shah, 2004 Cr LJ 2780 (2793) (Bom) : 2004 (2) Bom CR (Cri) 40 : 2004 (2) Cur CrR 422]. It does not, however, apply to searches under section 5 of Gambling Act [Khilindra, 3 L 359; Ruremal, AIR 1929 All 937 : 120 Ind. Cas. 266; Mahadeo, AIR 1934 Oudh 90]; section 6 Bombay Prevention of Gambling Act [Raghunath, AIR 1932 Bom 610 : 1932 (34) BomLR 901 : 139 Ind. Cas. 281]; Bengal Excise Act [Harbhajan, ILR 54 C 601]; Hyderabad Gambling Act [Siddanna v State of Mysore, AIR 1966 My 289 : 1966 Cr LJ 1280 : 1966 (1) Mys LJ 110 : section 132 Income Tax Act, 1961 [Mamchand and Co, AIR 1969 Cal 431 : [1970] 76 ITR 217 (Cal)].

Search under section 50 of the NDPS Act: Supreme Court Guidelines.—(1) That when an empowered officer or

Page 10 of 11 [s 100] Persons in charge of closed place to allow search.— a duly authorised officer acting on prior information is about to search a person, it is imperative for him to inform the concerned person of his right under sub-section (1) of section 50 of being taken to the nearest Gazetted Officer or the nearest Magistrate for making the search. However, such information may not necessarily be in writing;

(2) That failure to inform the concerned person about the existence of his right to be searched before a Gazetted Officer or a Magistrate would cause prejudice to an accused;

(3) That a search made, by an empowered officer, on prior information, without informing the person of his right that, if he so requires, he shall be taken before a Gazetted Officer or a Magistrate for search and in case he so opts, failure to conduct his search before a Gazetted Officer or Magistrate, may not vitiate the trial but would render the recovery of the illicit article suspect and vitiate the conviction and sentence of an accused, where the conviction has been recorded only on the basis of the possession of the illicit article, recovered from his person, during a search conducted in violation of the provisions of section 50 of the Act;

(4) That there is indeed need to protect society from criminals. The societal intent in safety will suffer if persons who commit crimes are let off because the evidence against them is to be treated as if it does not exist. The answer, therefore, is that the investigating agency must follow the procedure as envisaged by the statute scrupulously and the failure to do so must be viewed by the higher authorities seriously inviting action against the concerned official so that the laxity on the part of the investigating authority is curbed. In every case, the end result is important but the means to achieve it must remain above board. The remedy cannot be worse than the disease itself. The legitimacy of judicial process may come under cloud if the court is seen to condone acts of lawlessness conducted by the investigating agency during search operations and may also undermine respect for law and may have the effect of unconscionably compromising the administration of justice. That cannot be permitted. An accused is entitled to a fair trial. A conviction resulting from an unfair trial is contrary to our concept of justice. The use of evidence collected in breach of the safeguards, provided by section 50 at the trial, would render the trial unfair.

(5) That whether or not the safeguards provided in section 50 have been duly observed would have to be determined by the court on the basis of evidence led at the trial. Finding on that issue, one way or the other, would be relevant for recording an order of conviction or acquittal. Without giving an opportunity to the prosecution to establish, at the trial, that the provisions of section 50 and particularly the safeguards provided therein were duly complied with, it would not be permissible to cut short a criminal trial;

(6) That in the context in which the protection has been incorporated in section 50 for the benefit of the person intended to be searched, we do not express any opinion whether the provisions of section 50 are mandatory or directory, but, hold that failure to inform the concerned person of his right, as emanating from sub-section (1) of section 50, may render the recovery of the contraband suspect and the conviction and sentence of an accused bad and unsustainable in law;

(7) That an illicit article seized from the person of an accused during search conducted in violation of the safeguards provided in section 50 of the Act cannot be used as evidence of proof of unlawful possession of the contraband on the accused though any other material recovered during that search may be relied upon by the prosecution, in other proceedings, against an accused, notwithstanding the recovery of that material during an illegal search;

(8) A presumption under section 54 of the Act can only be raised after the prosecution has established that the accused was found to be in possession of the contraband in a search conducted in accordance with the mandate of section 50. An illegal search cannot entitle the prosecution to raise a presumption under section 54 of the Act.

(9) That the judgment in Pooran Mal’s case [Pooran Mal v Director of Inspection (Investigation), AIR 1974 SC

Page 11 of 11 [s 100] Persons in charge of closed place to allow search.— 348 : (1974) 1 SCC 345] cannot be understood to have laid down that an illicit article seized during a search of a person, on prior information, conducted in violation of the provisions of section 50 of the Act, can by itself be used as evidence of unlawful possession of the illicit article on the person from whom the contraband has been seized during the illegal search [State of Punjab v Baldev Singh, AIR 1999 SC 2378 : 1999 Cr LJ 3672 (SC)].

Omission to furnish copy of the Panchnama prepared, after search to the accused as required by Section 100(7) of Code of Criminal Procedure, 1973, was held fatal to the prosecution case [State of Maharashtra v Popat Panchand Shah, 2004 Cr LJ 2780 (2793) (Bom) : 2004 (1) FAC 261 : 2004 FAJ 432]. End of Document

[s 101] Disposal of things found in search beyond jurisdiction.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER VII PROCESSES TO COMPEL THE PRODUCTION OF THINGS > C.—General Provisions relating to Searches

The Code of Criminal Procedure, 1973 CHAPTER VII PROCESSES TO COMPEL THE PRODUCTION OF THINGS C.—General Provisions relating to Searches [s 101] Disposal of things found in search beyond jurisdiction.— When, in the execution of a search-warrant at any place beyond the local jurisdiction of the court which issued the same, any of the things for which search is made, are found, such things, together with the list of the same prepared under the provisions hereinafter contained, shall be immediately taken before the court issuing the warrant, unless suchplace is nearer to the Magistrate having jurisdiction therein than to such court, in which case the list and things shall be immediately taken before such Magistrate; and unless there be good cause to the contrary, such Magistrate shall make an order authorising them to be taken to such court. [s 101.1] Changes.— Section 101 corresponds to the old section 99. [s 101.2] Scope and application of section 101.— This section (as also section 93) is inapplicable when there is no search warrant [Permanand, Ratanlal, UCC 880].

To facilitate the investigation proceedings and to ascertain correct facts, it has been enacted under section 101 of the Code that in case certain things have been recovered in a place outside the jurisdiction of the court issuing search warrants, the things have to be taken or sent immediately after preparing a list to the court issuing search warrants [Mahesh Pal Singh v Pooran Chand Tiwari, 1988 1 AWC 103 (All)].

End of Document

[s 102] Power of police officer to seize certain property.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER VII PROCESSES TO COMPEL THE PRODUCTION OF THINGS > D.—Miscellaneous

The Code of Criminal Procedure, 1973 CHAPTER VII PROCESSES TO COMPEL THE PRODUCTION OF THINGS D.—Miscellaneous [s 102] Power of police officer to seize certain property.— (1) Any police officer may seize any property which may be alleged or suspected to have been stolen, or which may be found under circumstances which create suspicion of the commission of any offence. (1) Such police officer, if subordinate to the officer in charge of a police station, shall forthwith report the seizure to that officer. 4[(3) Every police officer acting under sub-section (1) shall forthwith report the seizure to the Magistrate having jurisdiction and where the property seized is such that it cannot be conveniently transported to the court, 5[or where there is difficulty in securing proper accommodation for the custody of such property, or where the continued retention of the property in police custody may not be considered necessary for the purpose of investigation] he may give custody thereof to any person on his executing a bond undertaking to produce the property before the court as and when required and to give effect to the further orders of the court as to the disposal of the same.] 6[Provided

that where the property seized under sub-section (1) is subject to speedy and natural decay and if the person entitled to the possession of such property is unknown or absent and the value of such property is less than five hundred rupees, it may forthwith be sold by auction under the orders of the Superintendent of Police and the provisions of sections 457 and 458 shall, as nearly as may be practicable, apply to the net proceeds of such sale.] [s 102.1] Changes.— Section 102 corresponds to the old section 550 divided into sub-sections (1) and (2) without any change. [s 102.1.1] 1978 Amendment.— Sub-section (3) has been inserted in 1978 to remove a lacuna in the law in the matter of requirement of the police to forthwith report the seizure of property to the Magistrate (for this lacuna, see comments under section 457 post) and also to give effect to the observation of the Supreme Court in Anwar Ahmad v Sate of UP, AIR 1976 SC 680 : 1976 Cr LJ 620 : (1976) 1 SCC 154 that the police should be empowered to get a bond from the person to whom the seized property is entrusted (there also existed a lacuna in this matter for which see comments under section 446 post). [s 102.1.2] Criminal Procedure Code (Amendment) Act, 2005 (25 of 2005).— In section 102 of the principal Act,

Page 2 of 6 [s 102] Power of police officer to seize certain property.—

(a) in sub-section (3), after the words “transported to the Court”, the words “or where there is difficulty in securing proper accommodation for the custody of such property, or where the continued retention of the property in police custody may not be considered necessary the purpose of investigation” shall be inserted; (b) after sub-section (3), the following proviso shall be added at the end, namely: Provided that where the property seized under sub-section (1) is subject to speedy and natural decay and if the person entitled to the possession of such property is unknown or absent and the value of such property is less than five hundred rupees, it may forthwith be sold by auction under the orders of the Superintendent of Police and the provisions of sections 457 and 458 shall, as nearly as may be practicable, apply to the net proceeds of such sale.

Notes on Clauses

The proposed amendment to sub-section (3) of section 102 is intended to give greater dis-cretion to the police for releasing seized property, where there is difficulty in securing proper accommodation for the custody of property or where the continued retention of the property in police custody is not considered necessary for the purpose of investigation.

It is also proposed that if the seized property is of perishable nature and value of such prop-erty is less than five hundred rupees and if the person entitled to the possession of such property is unknown or absent, the police be empowered to sell such property by auction under the orders of the Superintendent of Police. For this purpose, a proviso is being inserted to sub-section (3) of section 102 of the Code. (Notes on clauses, clause 13)

This amendment in the section has come into force with effect from. 23 June 2006 vide Notification No. S.O. 923(E), dated 21 June 2006. [s 102.2] Scope and application of section 102.— The words “any offence” in section 102(1) show that even in case of non-cognizable offence, the police may seize property found under suspicious circumstances [Babulal, AIR 1954 Ori 225].

To attract the application of section 102 of Code of Criminal Procedure, 1973, the properties sought to be seized or frozen must be either stolen properties or they should have been found to have some nexus with the offence which is under investigation of a police officer concerned [Rajamani v Inspector of Police, Salim, 2003 Cr LJ 2902 (2903) (Mad) : 2003 (4) All CrLR 152].

The police officer in course of investigation can seize any property under section 102 if such property is alleged to be stolen or is suspected to be stolen or is the object of the crime under investigation or has direct link with the commission of offence for which the police officer is investigating into. A property not suspected of commission of the offence which is being investigated into by the police officer cannot be seized. Under section 102 of the Code, the police officer can seize such property which is covered by section 102(1) and no other [MT Enrica Lexie v Doramma, AIR 2012 SC 2134 : (2012) 6 SCC 760 : 2012 Cr LJ 2845 (SC)].

Amplitude of section 102 of the Code is very wide. It empowers the police officers to seize properties not only of

Page 3 of 6 [s 102] Power of police officer to seize certain property.— the accused but of any of his relatives or any other person who could be concerned with the said property. The requirement is only that it must be found under the circumstances which create suspicion about the commission of an offence [Adarsh Co-operatie Housing Society Ltd v UOI, 2012 Cr LJ 520 (527) (Bom) (DB) : 2012 (114) BOMLR 431].

“Any property” mentioned in the section whether movable or immovable can be seized by police under section 102 of Code of Criminal Procedure, 1973 [Bombay Science and Research Education Institute v State of Maharashtra, 2008 Cr LJ 4200 (Bom) : 2008 All MR (Cri) 2133 : 2008 (5) AIR Bom R 523; see also Sudhir Vasant Karnataki v State of Maharashtra, 2011 (1) BomCR (Cri) 326 (FB) : 2010 (6) MahLJ 803 (FB) (holding that the expression “any property” used in sub-section (1) of section 102 of the Code does not include immovable property)].

In the instant case, it was a chance recovery during a routine rummaging by the custom officers, and the officers were of the rank of Superintendent of Customs and Custom Inspectors, who were also invested with the powers of officer-in-charge of the police station. It was held that as there was compliance of sections 41(2), 42, 43 or 44, there was no question of any breach of the provisions of section 102 of Code of Criminal Procedure, 1973 [Gulam Nurmomad Theim v State of Gujarat, 2003 Cr LJ 356 (366) : 2002 (3) Guj LR 2642 : 2002 CrLR (Guj. Mah & SC) 757].

Property seized under section 23 and rule 27(1) can only be disposed of as provided under rules 27 and 28 of the Sand Rules and is liable to be sold if the amount fixed by the Collector is not paid within a reasonable time. In the case of seizure by police, mahazar shall be prepared and a copy shall be given to the District Collector. The rules do not provide that the seizure shall be reported to the Magistrate. Provision is made for return of the vehicle or its sale under rules 27 and 28 [Moosakaya v State of Kerala, 2008 Cr LJ 2388 (2394) (Ker) : 2008 (1) Ker LT 538]. [s 102.3] Property to be seized.— According to some decisions, only property of which physical possession can be taken, can be seized, and prohibitory orders on banks, etc., cannot be issued under section 102 [Textile Traders v State of UP, AIR 1960 All 405, Emperor v Bithal, AIR 1914 Oudh 230].

But the Delhi High Court declined to interfere with the directions of the (CBI) to banks, etc., freezing the accounts of the petitioner who had opened account in the name of his wife, sons, etc., forging their signatures. Such forger itself pointed an accusing finger at the petitioner [PK Parmar v UOI, 1992 Cr LJ 2499 Delhi : 1992 (2) Rec Cr R 347 (RL Gupta J.)]. [s 102.4] Police Officer.— Officers other than police officers cannot resort to section 102 except when so empowered under the Special Act [BadakuJoti Savant v State of Myosre, AIR 1966 SC 1746 : 1966 Cr LJ 1353; Assistant Collector Customs v Tilak Raj Shiv Dayal, AIR 1969 Del 301 : 1969 Cr LJ 1245 : 71 Punj LR (D) 302]. [s 102.5] Seizure.— The suspected property must be seized by the police officer himself and he cannot order another to do it [Bithal, 15 Cr LJ 177 : 16 OC 371]. Other property mixed up with the suspected property cannot be seized [Sada, 11 Cr LJ 19]. “Seizure” means actual physical possession of movable property. An order by the police on a Bank prohibiting payment of money to one having an account alleging that it was got by committing an offence is illegal. Seizure of a debt is not empowered [Textile, AIR 1960 A 405]. Every property seized must be included in a list prepared by the police officer and no property can be detained without including it in the list. He should also report the matter forthwith to a Magistrate under section 523 (now section 457) [Nemichand, AIR 1963 Man 35]. Non-production of the seizure list in court as a part of the record is undoubtedly a lapse of the prosecution. But in the event of there being credible evidence on record, a lapse pertaining to non-production of seizure list would not really affect the case of prosecution in any way. The question always is whether any prejudice had been caused by reason of such a lapse [Sukhdeb Yadav v State, AIR 2001 SC 3678 : (2001) 8 SCC 86 : 2002 Cr LJ 80 (SC)]. The closing of a shop by a police officer on receiving a report of theft to enable him to show it to the Magistrate is unnecessary and undesirable though not illegal [Karan, AIR 1929 N 334]. The words “any offence” are wide enough to cover offences under the Defence of India Rules [Bhimji, AIR 1944

Page 4 of 6 [s 102] Power of police officer to seize certain property.— N 366]. Asking an accused to explain his possession of property believed to be stolen does not vitiate Article 20(3) [Fundan, AIR 1960 B 377].

When a scooter was seized by a competent police officer and delivered to the owner and the Magistrate was not informed of seizure and delivery of the scooter which resulted into non-compliance of section 102. Remand of matter just and proper [Pradyota Kumar Sahani v Malaya Kishore Naik, 1998 Cr LJ 796 : 1997 (2) Ori LR 129 (Ori)].

District Collector is not invested with the power to confiscate a vehicle, even if it is found to have been used for illegal transportation of sand. The District Collector can recover from the owner of the vehicle an amount equal to the price fixed by him towards the River Management Fund [Moosakaya v State of Kerala, 2006 Cr LJ 121 (122) (Ker)].

In the instant case, the vehicle involved in the illegal transport of sand was seized not under the power of the police or revenue officer under section 102 but under section 23 of the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001. Rules 27 of the rules framed under the said Act prescribe the procedure to be adopted with regard to seizure of vehicles. If a special procedure is provided, only that procedure is to be followed while exercising power specifically given under the Special Act [Moosakaya v State of Kerala, 2008 Cr LJ 2388 (2393) (Ker) : 2008 (1) Ker LT 538]. [s 102.6] Passport.— The offence alleged against the petitioner was forgery and misappropriation of funds. The investigating officer conducted the raid and seized certain properties including the passport of the petitioner and his wife. The passport was neither the subject of theft nor it had created any suspicion about commission of any offence. The seizure of the passports was held to be illegal [S Sathyanarayana v State of Karnataka, 2003 Cr LJ 1983 : AIR 2003 Kant HCR 995 : 2003 (2) All CrLR 812 : 2003 (3) Crimes 278 : 2003 (2) Cur Cr R 258 : 2003 (2) Kant LJ 52 (Kant)].

While the police may have the power to seize a passport under section 102(1) of the Code, it does not have the power to impound the same [Suresh Nanda v CBI, (2008) 3 SCC 674: AIR 2008 SC 1414 : 2008 Cr LJ 1599]. [s 102.7] Bank account.— A police officer investigating an offence under section 102 of Code of Criminal Procedure, 1973 issued a prohibitory order freezing a bank account, if such assets have direct links with the alleged offence. [State of Maharashtra v Topas D Neogy, 1999 Cr LJ 4305 : (1999) 7 SCC 685 (SC); Can Network Pvt Ltd v Home Secretary, Government of TN, 2003 Cr LJ 3971 (Mad); Adarsh Co-operative Housing Society Ltd v UOI, 2012 Cr LJ 520 (Bom) (DB) : 2012 (114) BOMLR 431 (where it was held that bank accounts which are frozen for investigation, particularly in respect of benami transactions, cannot be defreezed on the specious ground that the petitioner wants to engage a lawyer of its choice)].

Section 102 of Code of Criminal Procedure, 1973 does not require issuance of notice to a person before or simultaneously with the action of attachment of bank account [Vinod kumar Ramachandran Vallu v State of Maharashtra, 2011 Cr LJ 2522 (2527) (Bom)].

The allegation of the prosecution that the bank account is a sequel to the discovery of the commission of the offence is not sufficient to attract section 102 of Code of Criminal Procedure, 1973 1974, as it cannot be said that the bank account has been traced or discovered in the circumstance which have made the police aware of the commission of the offence [R Chandrasekhar v Inspector of Police, Salem, 2003 Cr LJ 294 (295) : 2002 Mad LJ (Cri) 1069 : 2003 (2) Mad LW (Ori) 537 : 2003 (1) Rec Cr R 503 (Mad)].

Where the inspector of police was only authorised to inspect the banker’s books, it was held that freezing of the accounts operated by the petitioners and his family members by the police was illegal. Allegations of

Page 5 of 6 [s 102] Power of police officer to seize certain property.— disproportionate wealth are to be proved by looking at the sources of income and not by freezing accounts [B Ranganathan v State, 2003 Cr LJ 2779 (Mad)].

In case of seizure of a bank account, the police should do two things: he should inform the concerned Magistrate forthwith regarding the prohibitory order. He should also give notice of the seizure to the accused and allow him/her to operate the bank account subject to his/her executing a bond undertaking to produce the amounts in court as and when required as to hold them subject to such orders as the court may make regarding the disposal of the same [B Ranganathan v State, 2003 Cr LJ 2779 (Mad)].

Bank account can be attached by police in exercise of power under this section and such attachment order will have effect of stopping account holder from operating those bank accounts but police officers have no powers to pass ad interim order or temporary order stopping operation of accounts before finally issuing order of attachment of account. Where police officer had not come to conclusion that amount lying in account was out of disproportionate income of accused, it was held that order was liable to be quashed for non-compliance of provisions of section 102 [Shashikant D Karnik v State, 2008 Cr LJ 148 (Bom) : 2007 (2) Bom CR (Cri) 871 : 2007 All MR (Cri) 1498 : 2007 (2) Cur Cri C 412].

Before passing orders of stopping the operation of bank account, notice is also required to be given to the accused [Ibid; Padmini v Inspector of Police, 2008 (3) Crimes 716 (Mad)]. [s 102.8] Seizure of contraband—Procedure.— If on the facts found, the seizure is made by the empowered police officer in accordance with the provisions of section 43 of NDPS Act, the need to follow the procedure laid down in section 102(3) of Code of Criminal Procedure, 1973, will stand obviated for the simple reason that the manner in which search and seizure of contraband is to be made is fully dealt with by the NDPS Act which is a special law engrafting a procedure different from those prescribed by the Code of Criminal Procedure, 1973 on such specified matters [H Kala Singh v State of Meghalaya, 2008 Cr LJ 4141 (Gau) : 2008 (3) GLT 888]. [s 102.9] Non-mention of letters in seizure list.— The purported explanation of the appellant that the said letters were taken into custody of the investigating officer and later on returned to him is wholly unbelievable. An investigating officer would not seize letters without preparing any seizure list. When the investigating officer visited the place of occurrence, the appellant was not present. Even a copy of the telegram which was found in the house had been seized. Other articles had also been seized. If seizure list had been prepared, there does not appear to be any reason whatsoever as to why the letters purported to have been written by the deceased would not be mentioned in the seizure list [Rameshwar Das v State of Punjab, 2008 Cr LJ 1400 (1403) (SC) : AIR 2008 SCC 890]. [s 102.10] Seal.— It is not mandatory for the investigating police officer to hand over the seal after sealing the incriminating articles to a non-official immediately or soon thereafter and non-production of it would by itself be not fatal to the case [Piara Singh v State of Punjab, AIR 1982 NOC 220 : 1982 Cr LJ 1176 : (1982) 84 Punj LR 244 FB (P&H)]. Unless discovery of property leads to suspicion of an offence having been committed, provisions of section 102 cannot be invoked for seizing such property [Jagdish Chander, 40 (1990) DLT 233 : 1990 (18) DRJ 204 : 1990 RLR 90].

Tampering may lead to acquittal [State of Rajasthan v Daulat Ram, AIR 1980 SC 1314 : 1980 (3) SCC 303 : 1980 Cr LJ 929]. [s 102.11] Calcutta Police.— Section 81 of the Calcutta Police Act authorises a police officer to seize any property or thing found in the possession of any person where it creates a reasonable suspicion of the committal of an offence. Such seizure shall be forthwith reported to the Commissioner of Police. [s 102.12] Custody.— See Nanno Mal v Sher Mohd. Khan, (1976) Cr J 1783 : 1976 All Cr C 306 : 1976 All WC 251 (All).

Page 6 of 6 [s 102] Power of police officer to seize certain property.—

4

Inserted by the Code of Criminal Procedure (Amendment) Act,1978 (45 of 1978), section 10.

5

Inserted by the Code of Criminal Procedure (Amendment) Act, 2005 (25 of 2005), section 13 (w.e.f. 23 June 2006 vide Notification No. SO 923(E), dated 21June 2006).

6

Inserted by the Code of Criminal Procedure (Amendment) Act, 2005 (25 of 2005), section 13 (w.e.f. 23 June 2006 vide Notification No. SO 923(E), dated 21 June 2006).

End of Document

[s 103] Magistrate may direct search in his presence.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER VII PROCESSES TO COMPEL THE PRODUCTION OF THINGS > D.—Miscellaneous

The Code of Criminal Procedure, 1973 CHAPTER VII PROCESSES TO COMPEL THE PRODUCTION OF THINGS D.—Miscellaneous [s 103] Magistrate may direct search in his presence.— Any Magistrate may direct a search to be made in his presence of any place for the search of which he is competent to issue a search-warrant. [s 103.1] Changes.— Section 103 reproduces the old section 105 verbatim. [s 103.2] Notes.— “Competent” (see sections 93 and 460). Magistrate can direct search to be made in his presence if he considers it advisable [Clarke, 39 C 953 PC]. He can himself conduct search under the Bombay Gambling Act [Fernand, 31 B 438]. Search warrants (sections 93–98).

End of Document

[s 104] Power to impound document, etc., produced.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER VII PROCESSES TO COMPEL THE PRODUCTION OF THINGS > D.—Miscellaneous

The Code of Criminal Procedure, 1973 CHAPTER VII PROCESSES TO COMPEL THE PRODUCTION OF THINGS D.—Miscellaneous [s 104] Power to impound document, etc., produced.— Any court may, if it thinks fit, impound any document or thing produced before it under this Code. [s 104.1] Changes.— Section 104 reproduces the old section 104 verbatim. [s 104.2] Notes.— To “impound” is to retain in the custody of law. “Before it”, i.e. it cannot be impounded if the document is produced in another court [Byas, 1 Cr LJ 1016].

Under section 104 of Code of Criminal Procedure, 1973, the court has no power to impound a passport. If the police seizes a passport (which it has power to do under section 102 of Code of Criminal Procedure, 1973), thereafter the police must send it along with a letter to the passport authority clearly stating that the seized passport deserves to be impounded for one of the reasons mentioned in section 10(3) of the Act. It is thereafter for the passport authority to decide whether to impound the passport or not [Suresh Nanda v CBI, 2008 Cr LJ 1599 (1602) (SC) : AIR 2008 SC 1414 : (2008) 3 SCC 674 : (2008) 2 SCC (Cri) 121].

End of Document

[s 105] Reciprocal arrangements regarding processes.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER VII PROCESSES TO COMPEL THE PRODUCTION OF THINGS > D.—Miscellaneous

The Code of Criminal Procedure, 1973 CHAPTER VII PROCESSES TO COMPEL THE PRODUCTION OF THINGS D.—Miscellaneous [s 105] Reciprocal arrangements regarding processes.— (1) Where a court in the territories to which this Code extends (hereafter in this section referred to as the said territories) desires that— (a) a summons to an accused person, or (b) a warrant for the arrest of an accused person, or (c) a summons to any person requiring him to attend and produce a document or other thing, or to produce it, or (d) a search-warrant, 7

(i)

[issued by it shall be served or executed at any place—

within the local jurisdiction of a court in any State or area in India outside the said territories, it may send such summons or warrant in duplicate by post or otherwise, to the presiding officer of that court to be served or executed; and where any summons referred to in clause (a) or clause (c) has been so served, the provisions of section 68 shall apply in relation to such summons as if the presiding officer of the court to whom it is sent were a Magistrate in the said territories;

(ii) in any country or place outside India in respect of which arrangements have been made by the Central Government with the Government of such country or place for service or execution of summons or warrant in relation to criminal matters (hereafter in this section referred to as the contracting State), it may send such summons or warrant in duplicate in such form, directed to such court, Judge or Magistrate, and sent to such authority for transmission, as the Central Government may, by notification, specify in this behalf.] (2) Where a court in the said territories has received for service or execution— (a) a summons to an accused person, or (b) a warrant for the arrest of an accused person, or (c) a summons to any person requiring him to attend and produce a document or other thing or to produce it, or (d) a search-warrant,

Page 2 of 3 [s 105] Reciprocal arrangements regarding processes.— 8[issued

(i)

by—

a court in any State or area in India outside the said territories;

(ii) a court, Judge or Magistrate in a contracting State, it shall cause the same to be served or executed] as if it were a summons or warrant received by it from another court in the said territories for service or execution within its local jurisdiction; and where— (i)

a warrant of arrest has been executed, the person arrested shall, so far as possible, be dealt with in accordance with the procedure prescribed by sections 80 and 81;

(ii) a search-warrant has been executed, the things found in the search shall, so far as possible, be dealt with in accordance with the procedure prescribed by section 101; 9[Provided

that in a case where a summons or search warrant received from a contracting State has been executed, the documents or things produced or things found in the search shall be forwarded to the court issuing the summons or search warrant through such authority as the Central Government may, by notification, specify in this behalf.] [s 105.1] Scope and application of section 105.— Section 105 of the Code makes elaborate provisions for service of summons in case the person summoned by the court resides outside the territory of India. Comprehensive guidelines have been laid down by the Government of India with regard to service of summons/notices/judicial process on persons residing abroad [Bhaskar Lal Sharma v Monica, (2014) 3 SCC 383 (388) (SC) : 2014 (4) Crimes 514 (SC) : 2014 (2) Scale 394].

The issuance of notification as provided for under section 105 of Code of Criminal Procedure, 1973 is not a mandatory procedure. The word used in section 105 (1)(ii) is “may”. The non-issuance of the Notification will not render nugatory the binding nature of the exchange of letters between the two countries [Swiss Timing Ltd v CBI, 2013 (1) Crimes 377 (387) (Del): (2012) ILR 4 Delhi 234].

It being held that there was no provision in the Code for enforcing the appearance, in the then British Indian Courts, of accused who were in any part of India outside British India without recourse to lengthy extradition proceedings [see Karimbux, AIR 1940 SC 154], in the Code of 1898 sections 93A–93C were inserted by section 2 of CrPC (Amendment) Act 14 of 1941 to remedy that defect. The Act was however repealed by section 2 and Schedule 1 of the Repealing and Amending Act 6 of 1945 and it was held that the Act remained despite the repeal of Act 14 of 1941 [Amrit, 47 Cr LJ 794]. After independence, section 93-A was substituted for sections 93A–93C by Act 1 of 1951 with the same object. It provided for the execution of summons or warrants issued by an “internal Court” in places within the jurisdiction of an “external Court” and vice versa. On repeal of section 93-A, section 105-A was inserted by Act 26 of 1958. It reproduced the repealed section 93-A in an amplified form. In the present section, which corresponds to old section 105-A, the changes have been effected (see changes above) so that courts in Nagaland and tribal areas in Assam may be put in same position, as courts in Jammu and Kashmir. Section 105-A was upheld in Durlab Singh v District Magistrate, Delhi, 1974 Cr LJ 1182 (Del) : 7 (1971) DLT 152; (1970) ILR 2 Delhi 913 : (1971) 73 PLR 113.

Warrant sent by Magistrate of Srinagar to the Chief Presidency Magistrate, Calcutta, for arrest of a person at 91, Theatre Road, Calcutta, cannot be executed by the latter by forwarding it to the Commissioner of Police as the place of arrest was outside the Chief Presidency Magistrate’s Jurisdiction [Roy, AIR 1955 C 277 : 59 Cal WN 300]. [See also notes to section 78]. [s 105.2] Proviso.— The proviso was inserted in 1989.

Page 3 of 3 [s 105] Reciprocal arrangements regarding processes.—

7

Substituted by the Code of Criminal Procedure (Amendment) Act, 1988 (32 of 1988), section 2 for the words “issued by it shall be served or executed at any place within the local jurisdiction of a court in any State or area in India outside the said territories, it may send such summons or warrant in duplicate by post or otherwise, to the presiding officer of that Court to be served or executed; and where any summons referred to in clause (a) or clause (c) has been so served, the provisions of section 68 shall apply in relation to such summons as if the presiding officer of the Court to whom it is sent were a Magistrate in the said territories”.

8

Substituted by the Code of Criminal Procedure (Amendment) Act, 1988 (32 of 1988), section 2 for the words “issued by a Court in any State or area in India outside the said territories, it shall cause the same to be served or executed”.

9

Inserted by the Code of Criminal Procedure (Amendment) Act, 1988 (32 of 1988), section 2.

End of Document

[s 105-A] Definitions.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER VII-A RECIPROCAL ARRANGEMENTS FOR ASSISTANCE IN CERT AIN MATTERS AND PROCEDURE FOR ATTACHMENT AND FORFEITURE OF PROPERTY

The Code of Criminal Procedure, 1973 1CHAPTER

VII-A RECIPROCAL ARRANGEMENTS FOR ASSISTANCE IN CERT AIN MATTERS AND PROCEDURE FOR ATTACHMENT AND FORFEITURE OF PROPERTY [s 105-A] Definitions.— In this chapter, unless the context otherwise requires— (a) “contracting State” means any country or place outside India in respect of which arrangements have been made by the Central Government with the Government of such country through a treaty or otherwise; (b) “identifying” includes establishment of a proof that the property was derived from, or used in the commission of an offence; (c) “proceeds of crime” means any property derived or obtained directly or indirectly, by any person as a result of criminal activity (including crime involving currency transfers) or the value of any such property; (d) “property” means property and assets of every description whether corporeal or incorporeal, movable or immovable, tangible or intangible and deeds and instruments evidencing title to, or interest in, such property or assets derived or used in the commission of an offence and includes property obtained through proceeds of crime; (e) “tracing” means determining the nature, source, disposition, movement, title or ownership of property.

1

Chapter VII-A containing Sections 105A to 105L inserted by the Code of Criminal Procedure (Amendment) Act, 1993 (40 of 1993), section 2 (w.e.f. 20 July 1994).

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[s 105-B] Assistance in securing transfer of persons.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER VII-A RECIPROCAL ARRANGEMENTS FOR ASSISTANCE IN CERT AIN MATTERS AND PROCEDURE FOR ATTACHMENT AND FORFEITURE OF PROPERTY

The Code of Criminal Procedure, 1973 1CHAPTER

VII-A RECIPROCAL ARRANGEMENTS FOR ASSISTANCE IN CERT AIN MATTERS AND PROCEDURE FOR ATTACHMENT AND FORFEITURE OF PROPERTY [s 105-B] Assistance in securing transfer of persons.— (1) Where a court in India, in relation to a criminal matter, desires that a warrant for arrest of any person to attend or produce a document or other thing issued by it shall be executed in any place in a contracting State, it shall send such warrant in duplicate in such form to such court, Judge or Magistrate through such authority, as the Central Government may, by notification, specify in this behalf and that court, Judge or Magistrate, as the case may be, shall cause the same to be executed. (2) Notwithstanding anything contained in this Code, if, in the course of an investigation or any inquiry into an offence, an application is made by the investigating officer or any officer superior in rank to the investigating officer that the attendance of a person who is in any place in a contracting State is required in connection with such investigation or inquiry and the court is satisfied that such attendance is so required, it shall issue a summons or warrant, in duplicate, against the said person to such court, Judge or Magistrate, in such form as the Central Government may, by notification, specify in this behalf, to cause the same to be served or executed. (3) Where a court in India, in relation to a criminal matter, has received a warrant for arrest of any person requiring him to attend or attend and produce a document or other thing in that court or before any other investigating agency, issued by a court, Judge or Magistrate in a contracting State, the same shall be executed as if it is the warrant received by it from another court in India for execution within its local limits. (4) Where a person transferred to a contracting State pursuant to sub-section (3) is a prisoner in India, the court in India or the Central Government may impose such conditions as that court or Government deems fit. (5) Where the person transferred to India pursuant to sub-section (1) or sub-section (2) is a prisoner in a contracting State, the court in India shall ensure that the conditions subject to which the prisoner is transferred to India are complied with and such prisoner shall be kept in such custody subject to such conditions as the Central Government may direct in writing.

Section 105B of the Code of Criminal Procedure does not apply to cases of extradition [Bhavesh Jayanti Lakhani v State of Maharashtra, (2009) 9 SCC 551 : 2009 AIR SCW 6309].

Page 2 of 2 [s 105-B] Assistance in securing transfer of persons.—

1

Chapter VII-A containing Sections 105A to 105L inserted by the Code of Criminal Procedure (Amendment) Act, 1993 (40 of 1993), section 2 (w.e.f. 20 July 1994).

End of Document

[s 105-C] Assistance in relation to orders of attachment or forfeiture of property.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER VII-A RECIPROCAL ARRANGEMENTS FOR ASSISTANCE IN CERT AIN MATTERS AND PROCEDURE FOR ATTACHMENT AND FORFEITURE OF PROPERTY

The Code of Criminal Procedure, 1973 1CHAPTER

VII-A RECIPROCAL ARRANGEMENTS FOR ASSISTANCE IN CERT AIN MATTERS AND PROCEDURE FOR ATTACHMENT AND FORFEITURE OF PROPERTY [s 105-C] Assistance in relation to orders of attachment or forfeiture of property.— (1) Where a court in India has reasonable grounds to believe that any property obtained by any person is derived or obtained, directly or indirectly, by such person from the commission of an offence, it may make an order of attachment or forfeiture of such property, as it may deem fit under the provisions of sections 105-D to 105-J (both inclusive). (2) Where the court has made an order for attachment or forfeiture of any property under sub-section (1), and such property is suspected to be in a contracting State, the court may issue a letter of request to a court or an authority in the contracting State for execution of such order. (3) Where a letter of request is received by the Central Government from a court or an authority in a contracting State requesting attachment or forfeiture of the property in India, derived or obtained, directly or indirectly, by any person from the commission of an offence committed in that contracting State, the Central Government may forward such letter of request to the court, as it thinks fit, for execution in accordance with the provisions of section 105-D to 105-J (both inclusive) or, as the case may be, any other law for the time being in force.

1

Chapter VII-A containing Sections 105A to 105L inserted by the Code of Criminal Procedure (Amendment) Act, 1993 (40 of 1993), section 2 (w.e.f. 20 July 1994).

End of Document

[s 105-D] Identifying unlawfully acquired property.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER VII-A RECIPROCAL ARRANGEMENTS FOR ASSISTANCE IN CERT AIN MATTERS AND PROCEDURE FOR ATTACHMENT AND FORFEITURE OF PROPERTY

The Code of Criminal Procedure, 1973 1CHAPTER

VII-A RECIPROCAL ARRANGEMENTS FOR ASSISTANCE IN CERT AIN MATTERS AND PROCEDURE FOR ATTACHMENT AND FORFEITURE OF PROPERTY [s 105-D] Identifying unlawfully acquired property.— (1) The court shall, under sub-section (1), or on receipt of a letter of request under Sub- section (3) of section 105-C, direct any police officer not below the rank of Sub-Inspector of Police to take all steps necessary for tracing and identifying such property. (2) The steps referred to in sub-section (1) may include any inquiry, investigation or survey in respect of any person, place, property, assets, documents, books of account in any bank or public financial institutions or any other relevant matters. (3) Any inquiry, investigation or survey referred to in sub-section (2) shall be carried out by an officer mentioned in sub-section (1) in accordance with such directions issued by the said court in this behalf.

1

Chapter VII-A containing Sections 105A to 105L inserted by the Code of Criminal Procedure (Amendment) Act, 1993 (40 of 1993), section 2 (w.e.f. 20 July 1994).

End of Document

[s 105-E] Seizure of attachment of property.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER VII-A RECIPROCAL ARRANGEMENTS FOR ASSISTANCE IN CERT AIN MATTERS AND PROCEDURE FOR ATTACHMENT AND FORFEITURE OF PROPERTY

The Code of Criminal Procedure, 1973 1CHAPTER

VII-A RECIPROCAL ARRANGEMENTS FOR ASSISTANCE IN CERT AIN MATTERS AND PROCEDURE FOR ATTACHMENT AND FORFEITURE OF PROPERTY [s 105-E] Seizure of attachment of property.— (1) Where any officer conducting an inquiry or investigation under section 105-D has a reason to believe that any property in relation to which such inquiry or investigation is being conducted is likely to be concealed, transferred or dealt with in any manner which will result in disposal of such property, he may make an order for seizing such property and where it is not practicable to seize such property, he may make an order of attachment directing that such property shall not be transferred or otherwise dealt with, except with the prior permission of the officer making such order, and a copy of such order shall be served on the person concerned. (2) Any order made under sub-section (1) shall have no effect unless the said order is confirmed by an order of the said court, within a period of thirty days of its being made.

1

Chapter VII-A containing Sections 105A to 105L inserted by the Code of Criminal Procedure (Amendment) Act, 1993 (40 of 1993), section 2 (w.e.f. 20 July 1994).

End of Document

[s 105-F] Management of properties seized or forfeited under this Chapter.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER VII-A RECIPROCAL ARRANGEMENTS FOR ASSISTANCE IN CERT AIN MATTERS AND PROCEDURE FOR ATTACHMENT AND FORFEITURE OF PROPERTY

The Code of Criminal Procedure, 1973 1CHAPTER

VII-A RECIPROCAL ARRANGEMENTS FOR ASSISTANCE IN CERT AIN MATTERS AND PROCEDURE FOR ATTACHMENT AND FORFEITURE OF PROPERTY [s 105-F] Management of properties seized or forfeited under this Chapter.— (1) The court may appoint the District Magistrate of the area where the property is situated, or any other officer that may be nominated by the District Magistrate, to perform the functions of an Administrator of such property. (2) The Administrator appointed under sub-section (1) shall receive and manage the property in relation to which the order has been made under sub-section (1) of section 105-E or under section 105-H in such manner and subject to such conditions as may be specified by the Central Government. (3) The Administrator shall also take such measures, as the Central Government may direct, to dispose of the property which is forfeited to the Central Government.

1

Chapter VII-A containing Sections 105A to 105L inserted by the Code of Criminal Procedure (Amendment) Act, 1993 (40 of 1993), section 2 (w.e.f. 20 July 1994).

End of Document

[s 105-G] Notice of forfeiture of property.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER VII-A RECIPROCAL ARRANGEMENTS FOR ASSISTANCE IN CERT AIN MATTERS AND PROCEDURE FOR ATTACHMENT AND FORFEITURE OF PROPERTY

The Code of Criminal Procedure, 1973 1CHAPTER

VII-A RECIPROCAL ARRANGEMENTS FOR ASSISTANCE IN CERT AIN MATTERS AND PROCEDURE FOR ATTACHMENT AND FORFEITURE OF PROPERTY [s 105-G] Notice of forfeiture of property.— (1) If as a result of the inquiry, investigation or survey under section 105-D, the court has reason to believe that all or any of such properties are proceeds of crime, it may serve a notice upon such person (hereinafter referred to as the person affected) calling upon him within a period of thirty days specified in the notice to indicate the source of income, earnings or assets, out of which or by means of which he has acquired such property, the evidence on which he relies and other relevant information and particulars, and to show cause why all or any of such properties, as the case may be, should not be declared to be proceeds of crime and forfeited to the Central Government. (2) Where a notice under sub-section (1) to any person specifies any property as being held on behalf of such person by any other person, a copy of the notice shall also be served upon such other person.

1

Chapter VII-A containing Sections 105A to 105L inserted by the Code of Criminal Procedure (Amendment) Act, 1993 (40 of 1993), section 2 (w.e.f. 20 July 1994).

End of Document

[s 105-H] Forfeiture of property in certain cases.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER VII-A RECIPROCAL ARRANGEMENTS FOR ASSISTANCE IN CERT AIN MATTERS AND PROCEDURE FOR ATTACHMENT AND FORFEITURE OF PROPERTY

The Code of Criminal Procedure, 1973 1CHAPTER

VII-A RECIPROCAL ARRANGEMENTS FOR ASSISTANCE IN CERT AIN MATTERS AND PROCEDURE FOR ATTACHMENT AND FORFEITURE OF PROPERTY [s 105-H] Forfeiture of property in certain cases.— (1) The court may, after considering the explanation, if any, to the show-cause notice issued under section 105-G and the material available before it and after giving to the person affected (and in a case where the person affected holds any property specified in the notice through any other person, to such other person also) a reasonable opportunity of being heard, by order, record a finding whether all or any of the properties in question are proceeds of crime: Provided that if the person affected (and in a case where the person affected holds any property specified in the notice through any other person such other person also) does not appear before the court or represent his case before it within a period of thirty days specified in the show-cause notice, the court may proceed to record a finding under this sub-section ex-parte on the basis of evidence available before it. (2) Where the court is satisfied that some of the properties referred to in the show-cause notice are proceeds of crime but it is not possible to identify specifically such properties, then, it shall be lawful for the court to specify the properties which, to the best of its judgment, are proceeds of crime and record a finding accordingly under sub-section (1). (3) Where the court records a finding under this section to the effect that any property is proceeds of crime, such property shall stand forfeited to the Central Government free from all encumbrances. (4) Where any shares in a company stand forfeited to the Central Government under this section, then, the company shall, notwithstanding anything contained in the Companies Act, 1956 (1 of 1956)2 or the articles of association of the company, forthwith register the Central Government as the transferee of such shares.

1

Chapter VII-A containing Sections 105A to 105L inserted by the Code of Criminal Procedure (Amendment) Act, 1993 (40 of 1993), section 2 (w.e.f. 20 July 1994).

2

Now see the Companies Act, 2013 (18 of 2013).

Page 2 of 2 [s 105-H] Forfeiture of property in certain cases.— End of Document

[s 105-I] Fine in lieu of forfeiture.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER VII-A RECIPROCAL ARRANGEMENTS FOR ASSISTANCE IN CERT AIN MATTERS AND PROCEDURE FOR ATTACHMENT AND FORFEITURE OF PROPERTY

The Code of Criminal Procedure, 1973 1CHAPTER

VII-A RECIPROCAL ARRANGEMENTS FOR ASSISTANCE IN CERT AIN MATTERS AND PROCEDURE FOR ATTACHMENT AND FORFEITURE OF PROPERTY [s 105-I] Fine in lieu of forfeiture.— (1) Where the court makes a declaration that any property stands forfeited to the Central Government under section 105-H and it is a case where the source of only a part of such property has not been proved to the satisfaction of the court, it shall make an order giving an option to the person affected to pay, in lieu of forfeiture, a fine equal to the market value of such part. (2) Before making an order imposing a fine under sub-section (1), the person affected shall be given a reasonable opportunity of being heard. (3) Where the person affected pays the fine due under sub-section (1), within such time as may be allowed in that behalf, the court may, by order, revoke the declaration of forfeiture under section 105-H and thereupon such property shall stand released.

1

Chapter VII-A containing Sections 105A to 105L inserted by the Code of Criminal Procedure (Amendment) Act, 1993 (40 of 1993), section 2 (w.e.f. 20 July 1994).

End of Document

[s 105-J] Certain transfers to be null and void.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER VII-A RECIPROCAL ARRANGEMENTS FOR ASSISTANCE IN CERT AIN MATTERS AND PROCEDURE FOR ATTACHMENT AND FORFEITURE OF PROPERTY

The Code of Criminal Procedure, 1973 1CHAPTER

VII-A RECIPROCAL ARRANGEMENTS FOR ASSISTANCE IN CERT AIN MATTERS AND PROCEDURE FOR ATTACHMENT AND FORFEITURE OF PROPERTY [s 105-J] Certain transfers to be null and void.— Where after the making of an order under sub-section (1) of section 105-E or the issue of a notice under section 105-G, any property referred to in the said order or notice is transferred by any mode whatsoever such transfers shall, for the purposes of the proceedings under this chapter, be ignored and if such property is subsequently forfeited to the Central Government under section 105-H, then, the transfer of such property shall be deemed to be null and void.

1

Chapter VII-A containing Sections 105A to 105L inserted by the Code of Criminal Procedure (Amendment) Act, 1993 (40 of 1993), section 2 (w.e.f. 20 July 1994).

End of Document

[s 105-K] Procedure in respect of letter of request.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER VII-A RECIPROCAL ARRANGEMENTS FOR ASSISTANCE IN CERT AIN MATTERS AND PROCEDURE FOR ATTACHMENT AND FORFEITURE OF PROPERTY

The Code of Criminal Procedure, 1973 1CHAPTER

VII-A RECIPROCAL ARRANGEMENTS FOR ASSISTANCE IN CERT AIN MATTERS AND PROCEDURE FOR ATTACHMENT AND FORFEITURE OF PROPERTY [s 105-K] Procedure in respect of letter of request.— Every letter of request, summons or warrant, received by the Central Government from, and every letter of request, summons or warrant, to be transmitted to a contracting State under this chapter shall be transmitted to a contracting State or, as the case may be, sent to the concerned court in India in such form and in such manner as the Central Government may, by notification, specify in this behalf.

1

Chapter VII-A containing Sections 105A to 105L inserted by the Code of Criminal Procedure (Amendment) Act, 1993 (40 of 1993), section 2 (w.e.f. 20 July 1994).

End of Document

[s 105-L] Application of this chapter.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER VII-A RECIPROCAL ARRANGEMENTS FOR ASSISTANCE IN CERT AIN MATTERS AND PROCEDURE FOR ATTACHMENT AND FORFEITURE OF PROPERTY

The Code of Criminal Procedure, 1973 1CHAPTER

VII-A RECIPROCAL ARRANGEMENTS FOR ASSISTANCE IN CERT AIN MATTERS AND PROCEDURE FOR ATTACHMENT AND FORFEITURE OF PROPERTY [s 105-L] Application of this chapter.— The Central Government may, by notification in the Official Gazette, direct that the application of this chapter in relation to a contracting State with which reciprocal arrangements have been made, shall be subject to such conditions, exceptions or qualifications as are specified in the said notification. [s 105.1] Changes.— Chapter VII-A, containing sections 105A–105L was newly inserted by the CrPC (Amendment) Act, 1993, in order to achieve the following objects:

(1) the transfer of persons between the contracting States including persons in custody for the purpose of assisting in investigation or giving evidence in proceedings; (2) attachment and forfeiture of properties obtained or derived from the commission of an offence that may have been committed in the other country; and (3) enforcement of attachment and forfeiture orders issued by a court in the other country.

In the Statements of Objects and Reasons to the Amending Act 40 of 1993 there is a clear reference that:

The Government of India had signed an agreement with the Government of United Kingdom of Great Britain and Northern Ireland for extending assistance in the investigation and prosecution of crime and the tracing, restraint and confiscation of the proceeds of crime (including crimes involving currency transfers) and terrorist funds, with a view to check the terrorist activities in India and the United Kingdom.

[s 105.2] Scope and application of section 105L.— In 1994, Parliament added chapter VIIA titled: “Reciprocal arrangements for assistance in certain matters and

Page 2 of 2 [s 105-L] Application of this chapter.— procedure for attachment and forfeiture of property” to the Criminal Procedure Code, 1973. This chapter was introduced to facilitate the agreement between the Government of United Kingdom of Great Britain and Northern Ireland. This was to facilitate cooperation in investigation of crime, secure, evidence, documents and witnesses. It primarily deals with the question of attachment of property [sections 105C to J and section 105A(b) to (e)]. It also contains provisions for “Assistance in securing the transfer of persons” (section 105B) [Bhavesh Jayanti Lakhani v State of Maharashtra, (2009) 9 SCC 551 : [2009] 12 SCR 861 : 2009 (11) Scale 467 ].

The whole of the chapter VIIA is a special chapter relating to specified offences therein and has nothing to do with the local offences or the properties earned out of those. There are other specific Central laws wherein the properties earned out of trading of Narcotic Drugs and Psychotropic Substances or the offences relating to smuggling or financial offences relating to foreign exchange are liable to be attached, seized and forfeitured. Chapter VII-A is one such measure to introduce stringent measures for attachment and forfeiture of the properties earned by the offences, by way of reciprocal arrangement in the contracting countries. The contention that provisions of chapter VII-A are for all, and sundry offences in India, would however be illogical. [State of Madhya Pradesh v Balram Mihani, 2010 (1) Crimes 114 (120) (SC) : [2010] 3 SCR 209 : (2010) 2 SCC 602 : 2010 AIR SCW 951].

Chapter VIIA of the Code of Criminal Procedure does not apply in situations of extradition [Bhavesh Jayanti Lakhani v State of Maharashtra, (2009) 9 SCC 551 : [2009] 12 SCR 861 : 2009 (11) Scale 467 ].

1

Chapter VII-A containing Sections 105A to 105L inserted by the Code of Criminal Procedure (Amendment) Act, 1993 (40 of 1993), section 2 (w.e.f. 20 July 1994).

End of Document

[s 106] Security for keeping the peace on conviction.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER VIII SECURITY FOR KEEPING THE PEACE AND FOR GOOD BEHAVIOUR

The Code of Criminal Procedure, 1973 CHAPTER VIII SECURITY FOR KEEPING THE PEACE AND FOR GOOD BEHAVIOUR [s 106] Security for keeping the peace on conviction.— (1) When a Court of Session or Court of a Magistrate of the first class convicts a person of any of the offences specified in sub-section (2) or of abetting any such offence and is of opinion that it is necessary to take security from such person for keeping the peace, the court may, at the time of passing sentence on such person, order him to execute a bond, with or without sureties, for keeping the peace for such period, not exceeding three years, as it thinks fit. (2) The offences referred to in sub-section (1) are— (a) any offence punishable under chapter VIII of the Indian Penal Code (45 of 1860), other than an offence punishable under section 153A or section 153B or section 154 thereof; (b) any offence which consists of, or includes, assault or using criminal force or committing mischief; (c) any offence of criminal intimidation; (d) any other offence which caused, or was intended or known to be likely to cause, a breach of the peace. (3) If the conviction is set aside on appeal or otherwise, the bond so executed shall become void. (4) An order under this section may also be made by an Appellate Court or by a court when exercising its powers of revision. [s 106.1] Changes.— Section 106 corresponds to the old section 106 with the following changes:

(1) Old sub-section (1) has been redrafted by dividing it into sub-sections (1) and (2) the offences being mentioned in sub-section (2). (2) In sub-section (1), the words “for a sum proportionate to his means” after “bond” have been omitted. (3) Old sub-sections (2) and (3) have been re-numbered as sub-sections (3) and (4), and in sub-section (4), the words “a Court” have been substituted for the “High Court”.

The following changes of substance have been effected:

Page 2 of 5 [s 106] Security for keeping the peace on conviction.—

(1) As to courts competent to take action, a Court of Session and a Court of Magistrate of the First Class, which will include also a metropolitan Magistrate have only been mentioned, and references to the High Court, District Magistrate, and Sub-divisional Magistrate have been omitted, as under the new Code they would not be trying offences. (2) The scope of the section has been modified in the following respects:

(i)

As to offences under chapter VIII of Indian Penal Code, 1860 the exceptions in regard to offences punishable under sections 143 and 149 of Indian Penal Code, 1860 have been removed and offence under section 153-B of Indian Penal Code, 1860 has been added as an exception.

(ii) As to other offences, the offence of assault being separated from the expression “assault and other offences involving a breach of the peace” has been included in a separate clause (b) in order to make it clear that a person convicted of the offence could be called upon to furnish security for keeping the peace without any necessity to inquire whether the offence was accompanied by circumstances to show an intended, actual or likely breach of the peace. In the same clause, using criminal force or committing mischief have been added newly, with a view to checking violent demonstrations involving deliberate destruction of property which are unfortunately becoming common. (iii) In view of the conflicting judicial decisions in regard to what is an offence involving a breach of the peace and in order to clarify that the provision would apply even if breach of the peace is not an ingredient of the offence, if breach of the peace is occasioned or the offender intended or knew it to be likely that breach of the peace would be caused by his act, clause (d) has been substituted for the words “other offence involving a breach of the peace”. (iv) Abetment of the offence of criminal intimidation has also been brought within the purview of the section as against only the substantive offence under the old section.

See Law Commission 41st Report vol 1 para 8.1 to 8.4 for a summary of sections 106 to 110, see Dwarkanath Ramchandra Angachekor v State of Maharashtra, 1977 Cr LJ 120 (Bom). [s 106.2] Scope and application of section 106.— Both sections 106 and 107 are counter parts of the same policy [see Madhu Limye v Sub Divisional Magistrate, Monghyr, AIR 1971 SC 2486 : 1971 Cr LJ 1720 : (1970) 3 SCC 746 (SC); also see Santhosh v State, 2014 (3) Ker LT 837 (Ker) : ILR 2014 (3) Kerala 993 : 2014 (4) Ker LJ 128 noted under section 107 post]. Though the object is the prevention and not punishment of offences [Umbica, 1 CLR 268, 271; Hari Telang, 27 C 781, 784], proceedings under this chapter are judicial and not administrative [Ramcharan, 1952 ALJ 60 ]. The section is aimed at persons who are a danger to the public by reason of commission of certain offences. [Veman, 11 Bom LR 743] and is intended to secure public tranquillity and to allay public apprehension [Mohammed, 16 Cr LJ 100]. A conviction alone of any of the offences specified is not sufficient for an order under section 106. The court must further be of the opinion, for reasons which it is desirable to record, that a bond should be executed by the accused [Arumugha, AIR 1943 Mad 169 : 1942 55 LW 746 : (1942) 2 Mad LJ 613 : 1942 Mad WN 760].

Order for security may be passed in a conviction under a summary trial [Lachman, 1886 AWN 181; Meghu, 7 OC 338]. It was perhaps not contemplated that such an order would be coupled with a non-appealable sentence [Nga Tun, 13 R 287]. [s 106.3] Nature of Proceedings.— Proceedings under chapter 8 are “inquiries” and not “trials” and the person proceeded against is not an

Page 3 of 5 [s 106] Security for keeping the peace on conviction.— accused [Benode, 50 C 985]. They are criminal trials within clause 15 of Letters Patent [Abdur, 39 M 539; Wazid, 41 C 719]. Ordinarily a person proceeded against under chapter 8 is entitled to have his witness summoned at State expense, unless the Magistrate declines it for strong reasons to be recorded [Pahlwan, AIR 1932 Lah 577 : 138 Ind. Cas. 765]. Refusal of bail is contrary to the spirit of the provisions of chapter 8 [Jatoi, AIR 1926 SC 288 : 96 Ind. Cas. 391]. [s 106.4] Evidence.— In proceedings under chapter 8, evidence not admissible under the Evidence Act cannot be admitted [Rajnarain, 25 ALJ 393] and information as to the evidence proposed to be adduced against the accused be supplied to him or cross-examination must be reserved to enable him to get full information [Bhutnath, 33 Cal WN 852]. See however section 116(2). [s 106.5] Clause (a) : “Punishable under Chapter 8, Penal Code other than”— This means all offences under chapter VIII of Indian Penal Code, 1860 except those specifically exempted, namely (i) section 153-A (promoting enmity between classes), (ii) section 153-B (imputations assertions, prejudicial to national integration), and (iii) section 154 (owner or occupier of land not giving information of riot). [s 106.6] Clause (d) : any other offence (....) breach of the peace.— In view of the conflicting interpretations of the words “or other offence involving breach of the peace”, a rather illusive expression, as was used in the old section, the present phraseology has been substituted. It is an omnibus one which would, without insisting that breach of the peace should be an ingredient of the offence, include within its wide scope any offence by which breach of peace was actually caused, or by which breach of peace was intended, and any offence where knowledge of a likely breach of the peace would be attributed to the offender.

In order to appreciate to what extent the change of law in this matter has been effected it would be profitable to refer to the cases bearing on the expression “offence involving breach of the peace” in the old section. [s 106.7] Involving.— Strictly interpreted “involving a breach of the peace” would include only offences of which breach of the peace is a necessary ingredient and in which such breach has occurred and not offences provoking or likely to lead to a breach of the peace [Arun, 30 C 366; Rajnarain, 35 C 315; Asoke, 34 Cal WN 651 : AIR 1930 Cal 802 : 129 Ind. Cas. 413; Ankulal, AIR 1939 Cal 484 : 43 Cal WN 867 (some offence in the substantive law of which the commission of, or intention to commit, a breach of the peace is one of the elements which goes to make up the offence); Muthiah, 29 M 190; Kuppa, 47 M 846; Md. Afzal, AIR 1924 Lah 311 : 71 Ind. Cas. 879; Abdulla, AIR 1921 Lah 96 ; Mg Kyi, AIR 1940 Rangoon 50 ; Bansgopal, AIR 1939 Oudh 45 ; Akhtar, AIR 1940 Oudh 323 : (1940) 10 AWR 218 ; Lodha, AIR 1932 O 33]. On the other hand, in some cases, the wider interpretation given is that the phrase also includes cases of offences in which an evident intention to commit breach of the peace is expressly found [Abdul Gafur, 35 Cal WN 1150 : 59 C 659; Abdul Ali, 43 C 671; Rafatullah, 34 Cal WN 988 : AIR 1930 Cal 646 : 132 Ind. Cas. 96]. The argument is that “involve” connotes the inclusion not only of an offence of which breach of the peace is a constituting ingredient but also of an offence which in all probability is the occasion of a breach of the peace [Manik, 33 A 771; Nanha, AIR 1924 N 118; Syed Yacoob, 43 B 554]. Thus, though an offence under section 379 of Indian Penal Code, 1860 [Rafatullah, supra; Lal Md., AIR 1931 P 373], or wrongful confinement [Kuppa, sup], or under section 294 of Indian Penal Code, 1860 [Mg Kyi, sup] or under section of 452 Indian Penal Code, 1860 [Jung Bahadur, AIR 1939 Cal 320 ] does not per se import breach of the peace, section 106 applies.

If the section is applied to offences of which breach of the peace is not a necessary ingredient, there must be a finding that the acts of the accused actually involved a breach of the peace [Abdul Ali, 20 Cal WN 197; Jiblal, 26 C 576; Rafatullah, 34 Cal WN 988 : AIR 1930 Cal 646 : 132 Ind. Cas. 96; Baidya, 30 C 93; Haroon, A 1932 SC 86 — Contra Ramaswami, AIR 1923 M 618 : 24 Cr LJ 445; Dipchand, AIR 1935 A 627].

But see section 106 (2) (d).

Breach of peace does not necessarily mean public peace [Naziruddin, A 1933 A 609—ContraMahant, AIR 1923 O 37; Dubri, AIR 1921 O 140].

Page 4 of 5 [s 106] Security for keeping the peace on conviction.— [s 106.8] Cases within the section.— Security can be demanded on conviction for assault in a public place [Sheoram, 24 Cr LJ 219; Ramaswami, 24 Cr LJ 455; Nanha, 75 IC 983]; criminal trespass [Dharamraj, 42 A 345]; rioting [Marimuthu, 32 Mad LT 315] : under section 324 of Indian Penal Code, 1860 [Hayat, AIR 1932 Lah 435 : (1932) ILR 13 LAH 336 : 139Ind. Cas. 127]; section 323 of Indian Penal Code, 1860 [Surajpal, AIR 1934 Oudh 425 ; Mewalal, 51 A 540; Chajju, AIR 1921 All 35 : 63 Ind. Cas. 460]; section 147 of Indian Penal Code, 1860 [Maharaj, 20 Cr LJ 760]. [s 106.9] Cases not within the section.— No order for security can be passed on conviction under section 510 of Indian Penal Code, 1860 [Venkatappa, AIR 1940 Mad 755 : 1940 MWN 531 ]; section 342 of Indian Penal Code, 1860 [Md. Afzal, 24 Cr LJ 271]. Section 41, section 106 is independent of section 41 (2). [s 106.10] Convicts a person of any of the offence.— Section does not of course apply when there is no conviction [Abdulla, 126 PLR 1910]. As to acquittal on appeal [see Chajju, 1895 AWN 141]; but, if breach of peace is apprehended, action may be taken under section 107.

The conviction must be for an offence specified in the section. So where the accused was charged with other offences, but convicted under section 143 and section 379 of Indian Penal Code, 1860, order is not legal [Raj Narain, 35 Cal 315].

Above Calcutta case of Raj Narain, 1908 35 Cal 315 was decided under the Code of 1898 which did not cover section 143 of Indian Penal Code, 1860 [Abdual Ali, 1915 ILR 43 Cal 671]. Present section 106 does not exclude offence under section 143 of Indian Penal Code, 1860. Cf. Joint Committee Report para 242.

It should be noted that section 149 of Indian Penal Code, 1860 (read with the relevant substantive section of the Code) is also not excluded. For the earlier law, see discussion in Mekraj AIR 1939 Mad 787 : 1939 50 LW 918 : (1939) 2 Mad LJ 36 : 1939 MWN 609. Cf Law Commission 41st Report vol I para 8.2. [s 106.11] Offence involving breach of peace.— Section 106(2)(d) overrides the view taken under the Code 1898 that the offence itself must involve breach of peace. Anukul v Sadhan, AIR 1939 Cal 484 : The Law Commission of India, 37th Report para 280 and 41st Report vol I para 8.1 to 8.4 recommended the inclusion of such offences. [s 106.12] Magistrates who are competent.— A Court of Session and a Court of Magistrate of the First Class, which means a Metropolitan Magistrate in a metropolitan area and a Judicial Magistrate of the first class in any other area [section 3(1)(c)] have the power to take action under the section. The Magistrate who convicts can only pass order under section 106 [Mahamudi, sup; Dukhi, AIR 1924 All 141 : 74 Ind. Cas. 448].

The period of three years has no connection with the ordinary powers under section 29 relating to the sentence [aja, 37 A 230]. [s 106.13] Court is of opinion that it is necessary—Security.— A conviction alone does not justify an order for security. The section is not punitive but preventive and the court has been given discretion which it will not exercise unless satisfied that there is a reasonable apprehension of further breach of peace; [see, Imamoodeen, 13 WR 73; Md. Jafir, 3A 545, 546; Tilak, 43 A 372]. On the other hand, if the act was the result of a momentary impulse without the slightest likelihood of repetition, there can be no order for security [Islam, 12 Cal WN Ixxxiii]. The court must show some grounds for requiring security [Jai Singh, AIR 1927 P 3] and it is desirable that reason should be recorded [Naziruddin, 55 A 850]. Failure to record reason is not illegal [Arumuga, AIR 1943 M 169 : 44 Cr LJ 321; Balian, AIR 1938 M 795 : 40 Cr LJ 165]. In order that a superior court may see whether the Magistrate applied his mind and passed a judicial order, he should record his opinion as to why execution of bond is necessary. It is undesirable to tack on to a small sentence of time for a petty offence an order under section 106 which in the case of indigent persons would

Page 5 of 5 [s 106] Security for keeping the peace on conviction.— necessitate imprisonment for a long period [In re: Saroja, AIR 1955 M 596 : 1955 Cr LJ 1505 : 1955 Mad WN 25, Balian, sup: Arumuga, sup].

If the order practically prevents the accused from exercising his legal rights, it is bad [Nandakumar, 11 Cal WN 1128; Nahar, 11 Cal WN 840; Rajkumar, 11 Cal WN 28 (as to markets)]. [s 106.14] At the time of passing sentence.— It is proper to give the accused an opportunity to show cause [Subal, 25 C 628; Jai Singh, AIR 1927 P 37]. But the section does not say so. According to the Allahabad High Court, an order under section 106 must be made when passing sentence and not subsequently after notice, which is unnecessary [Ramadhin, AIR 1924 All 230 : 81 Ind. Cas. 613; Yakub, AIR 1943 Mad 406 : (1943) 1 Mad LJ 264 : 1943 MWN 179]. [s 106.15] Bond.— Bond (Schedule 2, No. 12; fees on bond remitted under section 35 Court Fee Act) or cash may be taken [section 445, Laxmanlal, 32 R 449]. If security is not given, accused may be imprisoned (section 122). If sureties are ordered, the person concerned must nevertheless give his own bond [Udmi, 27 A 202]. The sureties should not be for an amount greater than the bond of the principal [Ellis, 13 Cr LJ 482]. The object not being punitive, excessive security which is beyond the means should not be demanded [Rama, 16-B 372; Kalachand, 6 C 14; Raza Ali, 23 A 80; Allahabad, AIR 1924 SC 120 ].

Security for good behaviour cannot be ordered [Mahabir, 19 Cr LJ 439; see Tamiz, 9 C 215]. If the principal breaks the peace, the whole amount of the bond is recoverable from the security in addition to any amount that might be recovered from the principal [Saligram, 36 C 562; Sardar, 17 L 523—Contra : The liability of the surety is the same as his liability under the civil law [Abdus Sattar, AIR 1938 O 195]. Nature of surety’s liability [Narain Sahai v Emperor, AIR 1946 All 333 : ILR 1946 All 801 : 1946 All WR 141 : 225 IC 609 : (1946) 47 Cr LJ 757 : 1946 All 801 : AIR 1946 A 333]. [s 106.16] Sub-section (3). [Appeal: Power of Appellate Court].— The substantive sentence must be appealable, otherwise mere order for security is not appealable [section 376; Nga Tun, AIR 1935 Rangoon 363 : AIR 1934 Rangoon 363 : 158 Ind. Cas. 1115]. An appellate court can pass an order under section 106 in cases where the Trial Court has no such power [Jai Singh, AIR 1927 Pat 37 : 97 Ind. Cas. 424 — Contra : Momin, 35 C 437 : 12 Cal WN 752]. Unlike the Trial Court, it can pass an order after the disposal of the appeal [Hussein, 29 Cr LJ 502] or even after the expiry of the sentence by the Trial Court [Miram, 21 PR 1905; Maharaj, 20 Cr LJ 760] which must of course be confirmed [Nura, 22 PR 1901]. Setting aside conviction amounts to cancellation of order for security [Chajjumal, 1895 AWN 141]. End of Document

[s 107] Security for keeping the peace in other cases.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER VIII SECURITY FOR KEEPING THE PEACE AND FOR GOOD BEHAVIOUR

The Code of Criminal Procedure, 1973 CHAPTER VIII SECURITY FOR KEEPING THE PEACE AND FOR GOOD BEHAVIOUR [s 107] Security for keeping the peace in other cases.— (1) When an Executive Magistrate receives information that any person is likely to commit a breach of the peace or disturb the public tranquillity or to do any wrongful act that may probably occasion a breach of the peace or disturb the public tranquillity and is of opinion that there is sufficient ground for proceeding, he may, in the manner hereinafter provided, require such person to show cause why he should not be ordered to execute a bond 1[with or without sureties;] for keeping the peace for such period, not exceeding one year, as the Magistrate thinks fit. (2) Proceedings under this section may be taken before any Executive Magistrate when either the place where the breach of the peace or disturbance is apprehended is within his local jurisdiction or there is within such jurisdiction a person who is likely to commit a breach of the peace or disturb the public tranquillity or to do any wrongful act as aforesaid beyond such jurisdiction. [s 107.1] Changes.— Sub-sections (1) and (2) correspond to sub-sections (1) and (2) of the old section 107 with following modifications:

(1) In sub-section (1) the words “When an Executive Magistrate receives information” have been substituted for “Wherever a Presidency Magistrate, District Magistrate, Sub-divisional Magistrate or Magistrate of the first class is informed” and the words “with or without sureties” after “bond” have been omitted. (2) In sub-section (2) the words “Executive Magistrate” have been substituted for “Magistrate empowered to proceed under sub-section (1)”. (3) Sub-sections (3) and (4) of the old section 107 have been omitted being unnecessary as all Executive Magistrates have been empowered to take action.

Material changes introduced are (i) the functions under the section have been assigned to all Executive Magistrates instead of District Magistrate, sub-divisional Magistrate or Magistrate of the first class, and (ii) the provision for demanding sureties at the discretion of the Magistrate has been omitted.

Page 2 of 10 [s 107] Security for keeping the peace in other cases.— See Law Commission 41st Report vol I para 8.7. [s 107.1.1] 1978 Amendment .— The words “with or without sureties” after “bond” which were omitted have been re-inserted. [s 107.2] Scope and application of section 107.— Section 107 is aimed at person who causes a reasonable apprehension of conduct likely to lead to a breach of the peace or a disturbance of public tranquillity. Both sections 106 and 107 are counterparts of the same policy, the first applying when by reason of the conviction of a person, his past conduct leads to an apprehension for the future and the second applying where the Magistrate on information is of opinion that unless prevented from so acting, a person is likely to act to the detriment of public peace and public tranquillity [Madhu Limaye v Sub Divisional Magistrate Monghyr, AIR 1971 SC 2486 : (1970) 2 SCC 746 : 1971 Cr LJ 1720 (SC)]. The Magistrate is authorised to take proceedings against a person if upon information, he is satisfied that he is likely—(i) to commit a breach of the peace or disturb the public tranquillity or (ii) to do any wrongful act that may probably produce the same result. Pending the completion of the inquiry, a person proceeded against under section 107 may, in a case of emergency, be required to execute an interim bond under section 116(3). In a purely civil dispute between the parties proceedings under section 107 to 109 would not initiate [Padma Sri Finance v District Collector, 2005 Cr LJ 1895 (1896) (AP) : 2005 (1) Andh LD (Cri) 183].

Section 107 of the Code of Criminal Procedure, falls under chapter VIII of the Code as security for keeping the peace and for good behaviour. The object is to ensure that there shall be no breach of the peace as it is likely any wrongful act may probably occasion a breach of the peace or disturb the public peace and tranquility. The proceedings are preventive in nature and not punitive as they are intended to secure peace and tranquility in the society, but the Magistrate concerned is under statutory obligation to hold an inquiry with a view to satisfy himself regarding existence of materials to justify the action as the Magistrate concerned cannot merely act on the basis of police report or a private complaint. The Magistrate is required to hold an inquiry and examine witnesses before any person is required to execute a bond with or without sureties to ensure that there shall be no breach of peace or disturbance of public tranquility as the case may be [Shilpa Aade v State of Maharashtra, 2012 BomCR (Cri) 709 : 2012 (2) MhLJ 768 ].

Provisions of the code are to be scrupulously followed [Ratankumar Jivrambhai Majithia v State of Maharashtra, 2006 Cr LJ 1135 (Bom)].

Petitioner and other persons affected people squatted on road, shouting slogans, demanding land for land and other rehabilitation measures. They had no design to commit cognizable offence as there was nothing on record to raise apprehension that they would disturb public peace or public order. It was held that sending them to jail on failure of furnishing personal bond was violative of Article 21 [Medha Patkar v State, 2008 Cr LJ 47 (MP) : 2007 (4) MPHT 219]. [s 107.3] Preventive provision.— The section is preventive and not punitive [Madhu Limay v Sub Divisional Magistrate, Manghyr AIR 1971 SC 2486 : (1970) 2 SCC 746 : 1971 Cr LJ 1720 (SC); Ramnarain Singh v State of Bihar, AIR 1972 SC 2225 : 1972 Cr LJ 1444 : (1972) 2 SCC 532 (SC); Mahabir, A 1940 P 252; Sukhlal, AIR 1938 Cal 583 ; Baburam, AIR 1932 Lah 101 ; Shadilal, AIR 1931 Lah 191 : 134 Ind. Cas. 585; Noor Hasan Abdul Shaikh v State of Maharashtra, 2003 Cr LJ 4007 (4008) : 2003 (3) Crimes 146 : 2003 (3) Bom LR 967 ; Padma Sri Finance v District Collector, 2005 Cr LJ 1895 (AP) : 2005 (1) Andh LD (Cri) 183]. Therefore, where wrongful acts have been committed, which are being or should be prosecuted, this section is inappropriate [Srikanta, 9 Cal WN 898; Hari, 27 C 871; Jiwan, 52 A 593; Suhlal, 39 Cr LJ 992; Umbika, 1 CLR 268]. Nor can facts which were the subject of prior proceedings under section 107 or charges under the Indian Penal Code ending in favour of the accused be the basis of fresh proceedings under section 107 [Konda, 41 M 246; Rajendra, 17 Cal WN 238 : 18 Ind. Cas. 149; Rangaswami, 30 Cr LJ 931; Satwaji, 1933 MWN 915 ]. Fresh proceedings may be drawn up for fresh happenings [Kartick, AIR 1956 C 140].

The object of the sections 107 to 151 of the Code is of preventive justice. If a proceeding under sections 107 to 151 appears to be absolutely necessary to deal with the threatened apprehension of breach of peace, it is

Page 3 of 10 [s 107] Security for keeping the peace in other cases.— incumbent upon the authority concerned to take prompt action. The jurisdiction vested in a Magistrate to act under section 107 is to be exercised in emergent situation [Rajinder Singh Pathani v State of NCT of Delhi, (2011) 13 SCC 329 : 2012 Cr LJ 609 (SC)].

The breach of peace must be imminent to justify action under this section. Merely because a crime is registered is not a ground to initiate the proceedings under section 107 of the Code of Criminal Procedure [Ahammad Kabeer v State of Kerala, 2014 Cr LJ 2021 (Ker) : 2014 (2) KLJ 209 ].

It is the officer on spot who has to take decision on the provisions that he should be resorted to, whether sections 107 to151 or section 145 of the Code, depending on the prevailing circumstances. Even if there had been altercation, abusing, threatening and beating, by no means, can it be held that resorting to the provisions of sections 107/151 of Code of Criminal Procedure, 1973, was totally unwarranted [Ram Mehar Singh v State of NCT of Delhi, 2012 Cr LJ 410 (SC) : (2011) 14 SCC 732 : (2011) 10 SCR 253 ]. [s 107.4] Need for Caution.— As the section confers wide and unusual powers interfering with the liberty of the subject who has not been found guilty of an offence, it must be exercised strictly in accordance with law [Ramnarain, sup; Deoballam Singh v Gorakhnath Singh, AIR 1947 Pat 235 : (1947) 48 Cr LJ 703 : 27 Pat LT 231]. Provisions of chapter 8 may be easily made an engine of injustice and oppression and the High Court will exercise the closest scrutiny to prevent the same [Nathu, 6 A 214, 218]. It is not intended to afford the police a means of getting hold of a person against whom they cannot prove an offence or to enable them to detain him until they can work out a case against him [Hamidullah, 1889 AWN 114; Paimal, 10 ALJ 351]. Section 107 is mainly intended for persons who are of desperate characters and habitually disturb the public peace or who in spite of orders of civil or criminal courts “finding possession against them” persist in their unlawful conduct of disturbing the possession of others by taking the law into their own hands [Suraj Narain Rai v The State, AIR 1950 Pat 502 : 1950 All WR (Supp) 103; Mayengbam Yaima Singh v Manipur Administration, AIR 1964 Man 62 : 1964 (2) Cr LJ 684 ].

Where a trial for an offence has failed, the court will not permit that object to be achieved by proceeding under section 107 [Kismat, 11 Cal WN 129; Alep, 11 Cal WN 413], but the mere fact that the substantive charges of the offence have failed will not necessarily be a bar to a proceeding under this chapter [Rajkaran, 32 A 55]. Simultaneous proceeding under section 107 for same act for which a police investigation under section 353 is in progress is not proper [Aluva Balaiahgari Chandra Reddy v The Revenue Inspector, Rajampet, 1980 Cr LJ 1169 : 1980 (1) Andh WR 455 : 1980 Mad LJ (Cri) 432 (AP)]. [s 107.5] Persons liable.— This section contemplates individual acts but persons who are behind the actual breakers of peace as abettors or instigators are also liable [Ramshankar, AIR 1947 A 392; Baines, AIR 1922 N 180; Md. Abdul, AIR 1930 L 363]. Agents or servants cannot escape liability by pleading that they acted under the orders of their employers [Srikanta, 9 Cal WN 898]. If there is no sufficient evidence against the parties, their servants or agents cannot be bound down [Dindayal, 25 Cr LJ 981; Ainuddin, 25 Cr LJ 230]. [s 107.6] Requirements of notice.— Once a Magistrate is satisfied from information and decides to issue notice to show cause, the notice issued must satisfy the requirements of section 111. This is the only notice contemplated and there can be no other preliminary notice simply to show cause without mention of the particulars in section 111 [Tulsibala Rakhit v KN Khosal, 56 Cal WN 193 : AIR 1953 Cal 109 : 1953 Cr LJ 344 ; Shamsuddin, 25 Cr LJ 89; Amit Pal Singh v Anil Kumar Mishra, 1978 Cr LJ 1066 : 1978 Pat LJR 166 (Pat)]. For invoking proceedings under section 107, there must be strong material to satisfy a Magistrate that imminent breach of peace is threatened [G Chandra Sekharam v K Gangayya, 1981 Cr LJ (NOC) 193 : 1980 LS (AP) 86 (AP)] and satisfaction regarding sufficiency of grounds to proceed under section 107 must be clear from the order [Veerappa v State of Karanataka, 1981 Cr LJ (NOC) 204 (Kant)]. It has however been held that if after a notice simply to show cause, a regular proceeding is drawn up under section 111, there is no illegality [Ram Lal Mallah v Lall Chand Mallah, AIR 1956 Cal 315 : 1956 Cr LJ 745 ]. Before issuing notice, the Magistrate may inquire himself or through some other agency [Shamsuddin, 25 Cr LJ 89], or avail himself of section 202; or apart from it call for a report of police officer [Sanjivi, 49 M 315; Tulsibala, sup; Laxmi Narain, 34 Cr LJ 42; Ismail, AIR 1938 L 640—Contra : Hari Singh, 29 Cr LJ 866; Burjorji, A 1932 B 196, or may direct another Magistrate to enquire into the facts, but the latter should not be asked to report whether action should be taken under section 107, for that opinion should

Page 4 of 10 [s 107] Security for keeping the peace in other cases.— be the Magistrate’s own [Deoballam Singh v Gorakhnath Singh, AIR 1947 Pat 235 : (1947) 48 Cr LJ 703 : 27 Pat LT 231]. Nor should he draw up proceedings merely because of the order of a superindentent or Magistrate [Hanif, AIR 1924 C 540]. Unless an opportunity is given to show cause, the proceeding will be quashed [Behari, 4 BLR 46, FB]. When a proceeding under section 107 to 116 is dropped by a Magistrate on the report of the police that there is no further apprehension of breach of peace with a warning to the accused, it is without jurisdiction as without giving an opportunity to the person he had no business to assume that there was any apprehension of breach of peace from him [Badri Prasad v The State, AIR 1954 All 591 : 1954 Cr LJ 1302 : 1954 All LJ 320 : 1954 All WR 198]. When once proceedings are started under section 107 and the Magistrate has issued order under section 111 and the party appears before him, the Magistrate has to hold an enquiry under section 116(1) and cannot drop the proceedings without such enquiry on the ground that the case should be dealt with under section 145 of the Code [Chandra Kishore Deb Barma v Jogendra Chandra Deb, AIR 1965 Tri 20 : 1965 (1) Cr LJ 602 ].

The crucial words are “is likely” and not “were likely” and so similar acts or act of violence in the past do not justify the action. The question is whether the person “is likely” to commit a breach of peace in the near future [Md. Abdul, I 1939 Lah 554 : A 1939 L 363; Kumarappa, AIR 1938 M 213; Maruthapali, AIR 1937 M 356; B Mossa Mohammad v Amin, AIR 1967 Ker 194 : 1967 Cr LJ 1330 : 1966 Ker LT 966 : 1967 Mad LJ (Cri) 178; see post : “Jurisdiction for Action Under section 107”].

If the interest of public peace so requires, the proceedings should be drawn up against both parties [Musaheb, AIR 1927 Pat 314 : 102 Ind. Cas. 781; Amanat, AIR 1929 Pat 67 115 Ind. Cas. 545; Shamrao Deorao v Emperor, AIR 1948 Nag 76 : (1948) 49 Cr LJ 61 : 1947 Nag LJ 360 ] and both should be bound over [Brindaban, 23 Cr LJ 701; Satruhan Jha v The State, AIR 1964 Pat 445 : 1964 (2) Cr LJ 438 ]. [s 107.7] Bail.— There is no provision to grant bail in a proceeding under section 107 [Balraj Madhok v UOI, AIR 1967 Del 31 : 1967 Cr LJ 865 ; Chandra Kishore Deb Barma v Jogendra Chandra Deb, AIR 1965 Tri 20 : 1965 (1) Cr LJ 602 ]. [s 107.8] Dropping the proceedings.— Before notice is issued under section 111 the Magistrate has inherent power to drop proceedings [Rupdeo Singh v Natha Singh, AIR 1970 Pat 134 : 1970 Cr LJ 724 ]. A proceeding under section 107 can be dropped at any stage when the Magistrate is satisfied that there is no danger of breach of the peace. Although there is no provision in sections 107, 111 and 116 specifically empowering a Magistrate to drop proceedings once started, such power may legitimately be inferred [Asghar Khan v State, AIR 1964 All 391 : 1964 (2) Cr LJ 260 : 1963 All WR 365 : 1963 All LJ 746; Sheokaran v Dulla, AIR 1958 Raj 180 : 1958 Cr LJ 970 : 1958 Raj LW 196 — Contra] : Magistrate cannot drop proceeding without making inquiry under section 116 (1) [Santa Debi v Lakhanlal Singh, AIR 1968 Pat 326 : 1968 Cr LJ 1114 ; Chandra Kishore, AIR 1965 Tri 20 ]. Proceedings under section 107 can continue despite the fact that the period for which the bond was required to be executed expired but the Magistrate taking into account subsequent events can drop the proceedings [Ramnarain Singh v State of Bihar, AIR 1972 SC 2225 : 1972 Cr LJ 1444 : (1972) 2 SCC 532 : (1973) 2 SCJ 531 (SC)]. Principles for inciting proceedings under section 107 stated. There is no illegality in admitting the evidence in the security proceedings of a specific charge which is the subject matter of a current trial. It is not necessary that every one of the persons complained against should be involved in every one of the incidents. It is enough, if all of them belong to one party or group [Chekki Reddy Subba Reddy v State of AP, 1973 Cr LJ 1713 : 1973 (1) Andh LT 1 : 1973 (2) APLJ 23 (AP)]. [s 107.9] Contents of Notice.— A notice to show cause should contain definite particulars and not vague recitals or words of section [Moosa, sup] and notice which does not contain the particulars required by section 111 is illegal [Tulsibala Rakhit v NN Khosal, AIR 1953 Cal 109 : 1953 Cr LJ 344 : 56 Cal WN 193]. See notes to section 111 post. Section 111 is mandatory, [Bairagi Charan Jena v State of Orissa, (1988) Cr LJ 286 : (1987) 63 Cut LT 10 : 1987 (1) Ori LR 177 (Ori)]. [s 107.10] Discretion to proceed under section 107 or any other section. [Land Dispute].— This section is akin to section 145 and a few others section 107 which is discretionary refers to personal disputes not concerning immovable property, while section 145 which is mandatory refers to dispute relating to land. But the object in both is the same, viz., to prevent a breach of peace. Whether the Magistrate should

Page 5 of 10 [s 107] Security for keeping the peace in other cases.— proceed under section 107 or any other section depends on the facts of the particular case. Generally, when the dispute does not relate to land, section 107 is applicable [Ramlochan, 36 A 143] and when it relates to possession of immovable property, section 145 is more appropriate [Balajit, 35 C 117; Baishnab, 12 Cal WN 606; Muthia, M 315; Raghunath, AIR 1931 Pat 347 : 133 Ind. Cas. 161; Mahadeo, 25 AIR 537; Deoballam Singh v Gorakhnalth Singh, AIR 1947 Pat 235 : (1947) 48 Cr LJ 703 : 231 IC 110; Kameshwar Singh v Ramdahin Tewari, AIR 1954 Pat 124 : 1954 Cr LJ 190 : 1954 BLJR 325 (four propositions enunciated) [Langpoklapam Damu Singh v Irengbam Achouba Singh, 1975 Cr LJ 1088 (Gau)] or pathway section 147 is more appropriate [Malla Mohamadoo v State, AIR 1966 J&K 29 : 1966 Cr LJ 145 : 1966 Kash LJ 1 ]. Section 107 is not an alternative to section 145 [Kadir Ali Dewan v Wahab Ali, 1980 Cr LJ 507 (Gau)]. The mere fact that the dispute concerns immovable property is no bar to a proceeding under section 107 [Thakur, 34 A 499; Rambaran, 28 A 406; Ramlochan, 36 A 143; Anund, 23 C 557; Abbas, 39 C 150 : 16 Cal WN 83 FB; Amulya, 24 Cal WN 1075; Sheoraj, 32 C 966; Muthia, sup; Madho, AIR 1942 Pat 331 ; Rajendra, AIR 1939 Pat 151 ; Mallappa, AIR 1926 Bom 313 : 1926 () BomLR 488 : 95Ind. Cas. 62; Daitari Padhan v The State, AIR 1967 Ori 17 : 1967 Cr LJ 231 : 32 Cut LT 472, but in such cases, the proceedings should be instituted against both the parties [Malla, sup; Subal Sahu v State, AIR 1967 Ori 198 : 1967 Cr LJ 1672 : 34 Cut LT 118]. When civil litigation about the property is pending between the parties [Ali Md., 24 Cal WN 1039; Malkappa v Padmanna, AIR 1959 Mys 122 : 1959 Cr LJ 621 : 1959 Mad LJ (Cri) 211] or decree has been passed by a Civil Court [Shankarappa Gurappa Kirahogi v Ramanagawda Sahebagowda Patil, AIR 1969 Mys 297 : 1969 Cr LJ 1250 : 1969 (1) Mys LJ 420 : 1969 Mad LJ (Cri) 294] or recent delivery of possession has been effected by a Civil Court [Pitabas Podhan v Krushna Podhan, AIR 1968 Ori 239 : 1968 Cr LJ 1629 ] section 107 is more appropriate. Order under section 145 is no bar to binding over the same parties on the same facts under section 107 [Muthia, 36 M 315].

In short, the Magistrate will use his discretion and determine which will be the most effective method in the circumstances: Sub-section (10) of section 145 makes this quite clear. Where breach of peace is imminent on the question of possession, section 107 would be appropriate [Jafar, 9 Cal WN 551; Krishnaswami, 1941 MWN 960 ; Rajendra, AIR 1939 Pat 151 ; Mallappa, AIR 1926 Bom 313 : 1926 BomLR 488 : 95 Ind. Cas. 62]. Where one party is clearly in the wrong and threatens to usurp the right of another who is in actual possession, the proper remedy is an order under section 144 or section 107 [Sheobalak, AIR 1922 P 435 FB : 23 Cr LJ 549]. Where there is a bona fide dispute relating to the possession of land, section 145 is appropriate [Balaji, 35 C 117; Suraj Narain Rai v The State, AIR 1950 Pat 502 : 1950 All WR (Supp) 103; Abdus Sayeed, 23 Cr LJ 123] and section 107 where such dispute is not bona fide [Rambaran, 28A 406 : Saddique, 32 Cr LJ 208 : Sheobalak, 2 P 94 FB]. In urgent cases, section 144 is applicable and may be combined with section 145 [Karuppana, 23 IC 730; Madho, AIR 1942 Pat 331 ]. The Magistrate should consider whether this section or any of the other sections (sections 133, 142, 144, 145) should be resorted to having regard to the facts of the case in hand. A proceeding under section 107 may, if considered necessary, be converted into one under section 145 [Abbas, 39 C 150 FB; Thakur, 34 A 449; Lachmandas, AIR 1936 SC 147 ] and vice versa [Muthia, 36 M 315; Bandi, 22 Cr LJ 384; see however, Ram Charan Singh v Basudeo Dusadh, AIR 1949 Pat 482 : (1950) 51 Cr LJ 92 ]. But there can be no order under chapter 10-D after instituting a proceeding under chapter 8 [Lachmandas, sup; Satdeo, 17 Cr LJ 527]. In a proceeding under section 107, inquiries into the right to possession is wholly irrelevant. The only thing to determine is whether there was a likelihood of breach of peace and whether the parties claiming a right to possession were about to fight [Sona, 38 Cr LJ 467]. Possession given by the Civil Court should be respected. The Magistrate cannot reopen the question of possession under sections 107, 144 and 145 [Ram Kr, AIR 1922 Pat 197 : 66 Ind. Cas. 817; Mahabir, AIR 1934 Pat 565 : 152 Ind. Cas. 591]. As to appropriateness of proceedings under section 107, or section 144, or 145, or section 147 [see Madho, AIR 1942 Pat 331 ; Rajendra, AIR 1939 Pat 151 ; Lachmandas, AIR 1936 SC 147 ].

The petitioner made a complaint that the respondent had gone to the flat with the so-called labours and his lock was broken. There was a dispute between the parties with respect to possession of flat. It was held that the petitioner was wrongly arrested and booked under section 107 of Code of Criminal Procedure, 1973. In view of the specific provisions of section 145 of Code of Criminal Procedure, 1973, the police should have initiated the proceedings against both under section 145 of Code of Criminal Procedure, 1973 [Purshottam Ramnani v Government of NCT of Delhi, 2008 Cr LJ 3266 (3269, 3270) (Del) : 2008 (67) All Ind Cas 344 : 2008 (2) Rec Cri R 831]. [s 107.11] Civil dispute.— Sections 107 to 109 of Code of Criminal Procedure, 1973 are to maintain public tranquility and to prevent a

Page 6 of 10 [s 107] Security for keeping the peace in other cases.— wrongful act that may occasion a breach of peace or disturb public tranquility. The sections cannot be invoked when there is a civil dispute between the two neighbours in respect of unauthorised construction [Keshav Kumar v State, 2008 Cr LJ 2333 (2334) (Del)]. [s 107.12] Petitions for Police Warning.— In the courts of the presidency, Magistrates and other Magistrates petitions are not unoften filed making allegations of a multifarious character, e.g., threat, molestation, abuse, intimidation, etc. against a party with a prayer that he be warned through the police. In respect of such a petition, the Chief Presidency Magistrate, Calcutta, passed a police warning order. Thereafter, the person affected applied for prosecution of the complainant under section 211 of Indian Penal Code, 1860. It was rejected on the ground that the petition of the opposite party was not a complaint within section 2(d) of the Code. The Chief Presidency Magistrate, however, conceded in his order that “what is known as police warning is irregular and not authorised by the Code”. [Purno Ch., 15 Cal WN 1051 : 12 Ind. Cas. 303]. The object of obtaining such police warnings is obviously to create evidence against a person and to give him a bad name behind his back and there being no warrant in law for such ex parte warning, it would be illegal to entertain such petitions. An aggrieved person should be directed to file a regular complaint which should be dealt with on its merits under sections 200–204. Thus, it was held that on an application under section 145 or section 107, the other party cannot be warned through the police without taking evidence and deciding the matter [Satyanaryana, AIR 1946 Mad 412 : (1947) ILR Madras 154 : 1946 59 LW 301 : (1946) 1 Mad LJ 458 : 1946 MWN 345; Badri Prasad v The State, AIR 1954 All LJ 591 : 1954 Cr LJ 1302 : 1954 All LJ 320 : 1954 All WR 198]. [s 107.13] Jurisdiction for action under section 107 : [“Receives information that.. breach of the peace”].— Credible (see Schedule 2. Form 14) information is the foundation of the Magistrate’s jurisdiction to act [Ganesh, 12 ALJ 336]. The information must show strong probability of a breach of peace and not a bare possibility. [Abdul Huq, 20 WR 57; Brijnand, 12 ALJ 1246; Chanbasappa, 6 Bom LR 862]. It must be such as to satisfy him that a breach of the peace or disturbance is likely to take place in the near future and it is this conviction of likelihood which gives him jurisdiction. [Jai Prakash, 6A 30; Ramaswamy, 27 M 510, 511; Md. Abdul, 1939 Lah 554 : AIR 1939 Lah 363 ; Kumarappa, AIR 1939 M 213; Shukhlal, AIR 1938 Cal 583 ; Muthuswami, 1940 Mad 335 FB : AIR 1940 M 23; Deoballam Singh v Gorakhnath Singh, AIR 1947 Pat 235 : (1947) 48 Cr LJ 703 : 27 Pat LT 231]. The information should not be vague and general [Grant, 22 Cr LJ 745; Nityanand, AIR 1921 L 183], but must be clear and definite, directly affecting the persons concerned and disclose tangible facts and details [Jai Prakash, sup; Pran Kr, 8 Cal WN 180; Shk Jinnat, 7 Cal WN 32; Nath Sahai, 25 Cr LJ 369; Ainuddin, AIR 1922 Cal 97 : 71 Ind. Cas. 694] and must connect them individually and not collectively [Pran Kr, sup]. It must contain evidence of some specific conduct showing that the person is likely to commit a breach of peace [Shadilal, 12 L 457]. Proceeding under section 107 need not be based on the commission of an overt act [Shiblal Paswan v State of Bihar, AIR 1962 Pat 369 : 1962 (2) Cr LJ 491 : 1962 BLJR 608 ]. To start proceeding against a person because he cast a slur on the character of a Circle Officer against whom he carried on a campaign of vilification in his written statement in a petition against him by his wife under section 125 is a misuse of section 107 [Anandamoy, 47 Cal WN 731].

There is no restriction as to the source or nature of the information. It may be oral or written, sworn or unsworn, official or unofficial, formal or informal, or may come from his own knowledge, and the Magistrate is not bound to disclose its source. [Anantapadnaviah, AIR 1930 M 975; Rajendra, 17 Cal WN 238, 261]. The information may come from a private individual or a police report [Jiwanji, 6 BHCR, 1; Laxmi Narain, 34 Cr LJ 42; Rajendra, 10 WR 55; Behari, 12 WR 60], or a record [Nursingh, 10 WR 1], or a report of a subordinate Magistrate, [Jai Prakash, sup], or it may be hearsay [Babua, 6 A 132; Laxmi Narain, sup]. Where the report of police officer was dated 2 Octber 1936 and proceedings were drawn up on 24 April 1937, the delay was deprecated and further inquiry was ordered after setting them aside. [Sukhlal, 178 IC 52 : AIR 1938 C 583].

For passing orders under section 107, the Magistrate can act on perusal of police report if satisfied that there is an apprehension of breach of peace. [Babaji Sahoo v State of Orissa, (1989) Cr LJ 1872 : 1989 OCR 76 (Ori)].

Threats and abuses were given by the petitioners, who were 60-, 50- and 20 years-old, respectively. Reports given at the police station were of trifling incidents, and were more in the nature of a trial of nerves between two parties determined to get at each other’s throats. Section 107 is not intended to check this sort of behaviour [Indravadan Killawalla v State of Maharashtra, 1989 Cr LJ 1253 (Bom) (Daud, J.)]

Page 7 of 10 [s 107] Security for keeping the peace in other cases.—

As a rule of prudence, events which are subject of investigation or trial may not be relied as sufficient, though they are not prohibited from being relied on. [Moidu v State of Kerala, AIR 1983 (NOC) 58 : 1982 Ker LT 578 : (1982) Cr LJ 2293 (FB) (Ker), overruling [Chirakundath, (1970) Ker LJ 61 ].

In the present case, the order directing to furnish land was passed in printed form showing complete nonapplication of mind and the procedure followed by the Executive Magistrate was contrary to law. No separate order as envisaged by section 111 of Code of Criminal Procedure, 1973, setting forth substance of information received was passed. Order was held liable to be set aside [Vasantkumar Jivrambhai Majithia v State of Maharashtra, 2006 Cr LJ 1135 (Bom)]. [s 107.14] Past acts.— Past conduct can be a basis for proceedings under section 107 [Moidu v State of Kerala, AIR 1983 (NOC) 58 : 1982 Ker LT 578 : 1982 Cr LJ 2293 FB (Ker)].

Information as to past acts alone is not sufficient. Something more is necessary— the contemplation of doing an act involving a breach of the peace in the near future. [Maruthapali, AIR 1937 Mad 356 : 169 Ind. Cas. 97 : 1937 45 LW 308 ; Kumarappa, AIR 1938 Mad 213 : 174 Ind. Cas. 248 : 1938 47 LW 322 : 1938 MWN 212 ; Rangaswami, AIR 1943 Mad 394 : 1943 56 LW 217 : (1943) 1 Mad LJ 246 : 1943 MWN 149; Basdeo, 26 A 190; Zulfikar, AIR 1927 Pat 231 : 103 Ind. Cas. 607]. Past acts may, however in certain cases point to a probable breach of the peace in future. [Jaguji, AIR 1918All 93 : 47 Ind. Cas. 72 : 47 Ind. Cas. 73]. What is required is that information must relate to facts which show that a breach of the peace is imminent, i.e., may take place at any moment and not one likely to happen at some future time [Ajodhya, 12 Cr LJ 493; Basdeo, 26 A 190; Md. Abdul, AIR 1939 Lah 363 ; Parman, 29 Cr LJ 417]. Proof of commission of some acts likely to cause breach of peace is sufficient and not some overt act causing breach of the peace which is punishable under the Penal Code as substantive offence. [Jiwan, 42 A 593; Ainuddin, 24 Cr LJ 230]. Where in a proceeding under section 107, evidence of specific incident not being sufficient to sustain order for binding over is rejected, subsequent trial for binding over in respect of that incident together with other incidents is not precluded. [State of AP v Kokkiligada Meeraiah, AIR 1970 SC 771 : 1970 Cr LJ 759 : (1969) 1 SCC 161 : 1969 (2) SCR 1004 ]. [s 107.15] Same : “Wrongful Act—Breach of the Peace”.— First, a person is liable when he himself is likely to commit a breach of the peace; secondly, he is also liable to be dealt with if he does a wrongful act in consequence of which others are likely to cause a breach of the peace [Satindra, 32 Cal WN 477 : AIR 1928 Cal 438 : 111 Ind. Cas. 396]. Wrongful act must mean wrongful according to some law. It is intended to prevent lawful acts which may result in a breach of the peace because of the wrongful acts of others. The wronged and the wrongdoers cannot be ceased together [Jasoda, AIR 1939 SC 167 ]. In such cases, the latter being the aggressive party should be bound over [Bhabataran, 9 Cal WN 618; Dindayal, 34 C 956; Rangaswami, AIR 1929 Mad 842 ; Feroj, 12 Cal WN 703; Nihal, AIR 1929 Lah 138 ; Khazan, 7 L 482; Thakur, 8 L 98]. “Wrongful Act” is act forbidden or wrongful by law and not an improper act [Pir Ali, 21 Cr LJ 453; B Maossa Mohammad v Amin, AIR 1967 Ker 194 : 1967 Cr LJ 1330 : 1966 Ker LT 966 : 1967 Mad LJ (Cri) 178]. A person cannot be prevented from exercising his legal rights [Jai Prakash, 6 A 26 FB; Dindayal, sup], If the doing of a rightful act (e.g., threatening to send judgment–debtor to prison) causes tension, the doer cannot be placed on security. [Ramkishen, AIR 1933 Lah 66 ]. Lawful act in a lawful manner does not bring one within section 107 merely because it causes tension to others who may cause breach of the peace [Baburam, AIR 1932 Lah 101 ; Nihal, 31 Cr LJ 75; Shabaz, 30 A 181; Md. Abdul, AIR 1939 Lah 363 ; Driver, 25 C 798]. The doing of a lawful act by some persons cannot justify action under section 107 merely because other persons threaten to prevent it and to commit a breach of the peace unless the former are themselves likely to commit it [Md. Yakub, 32 A 571; Govinda, AIR 1942 Nag 45 : [1942] ILR Nag 620; Shadilal, 12 L 457; Khazan, AIR 1926 J 683; Mahu, 19 Cr LJ 437]. A person is entitled to take measures to protect his lawful possession against aggressors [Janki, 21 Cr LJ 227; see Thakar, 8 L 98; Suraj Narain Rai v The State, AIR 1950 All 502 : 1950 All WR (Supp) 103].

The following are not wrongful acts—Stopping services of washerwomen and barber [Shk Jinnat, 7 Cal WN 32]; opening market on one’s own land in the vicinity of another market [Mahu, 19 Cr LJ 437]; drawing water from public well by chamar disregarding opposition [Khazan, AIR 1926 L 683]; granting lease of land by owner who is out of possession [Driver, 25 C 708].

Page 8 of 10 [s 107] Security for keeping the peace in other cases.—

Performance of religious ceremonies in a place not set apart for the purpose with the intention of wounding the religious feelings of neighbours is wrongful act [Murli, 33 A 75], or the slaughtering of a cow near public thoroughfare with the same intention [Ibrahim, AIR 1937 Lah 717 : 171 Ind. Cas. 950]. [s 107.16] Procedure.— The procedure is that of a summons case [section 116(2)] see also section 273. Proceedings under section 107 should contain definite particulars and not vague recitals of words of the section [Raghunath, AIR 1931 P 321 (B); Moosa Mohammad v Amin, AIR 1967 Ker 194 : 1967 Cr LJ 1330 : 1966 Ker LT 966 : 1967 Mad LJ (Cri) 178]. If notice does not state the substance of the information received, it is bad [Birdhaj Roy v The State, AIR 1953 Cal 491 : 1953 Cr LJ 1165 : 91 Cal LJ 119 : 57 Cal WN 251 : AIR 1953 C 491; Muthuswami, AIR 1940 M 23 FB; Balkishun Sao v Munno Khan, AIR 1970 Pat 107 : 1970 Cr LJ 586 : 1969 Pat LJR 223 (2) : 1969 BLJR 479 ]. It must satisfy the requirements of section 111 (see notes under it, post). But issue of preliminary notice to “show cause” apart from section 111 is illegal [Tulsibala Rakhit v NN Khosal, 56 Cal WN 193 : AIR 1953 Cal 109 : 1953 Cr LJ 344 ]. If the notice is vague, proceeding may be quashed [Nagireddy, 41 M 246]. Magistrate cannot delegate his power to make an order to an arbitrator [Ramautar, AIR 1931 Pat 92 : 130 Ind. Cas. 810]. If after enquiry no order binding over is necessary, the proper course is “discharge” and not “acquittal” [section 118; Bhagat, AIR 1938 All 49 : (1937) AWR 1113 173 : Ind. Cas. 669]; so also when the complainant is absent [Ahraf, 31 Cal WN 388]. [s 107.17] Evidence.— Evidence of general repute [as in section 116(4); See post,] is not admissible [Bidyapati, 25 A 273]. There must be evidence of specific conduct that the person is likely to commit breach of the peace [Suraj, AIR 1931 Lah 184 ]. In the case of several persons, there must be definite evidence against each [Shambhu, 38 A 468] and also individual finding [Dhanoo, 34 Cal WN 114]. As to joint trial, [see notes to section 116(5), post]. Evidence of past conduct and disposition is not substantive evidence, but corroborative [Mahabir, AIR 1940 Pat 252 ]. Proof of overt act is not necessary [Jiwan, AIR 1930 All 408 : 124 Ind. Cas. 706 : (1930) ILR 52 All 593], but if after initiation of proceeding any overt act has been committed, evidence may be given of such subsequent act [Shiblal Paswan v State of Bihar, AIR 1962 Pat 369 : 1962 Cr LJ 491 : 1962 BLJR 608 ]. Burden of proof [Mahabir, AIR 1940 Pat 252 ].

Position of witness need not be read over [Jafar, 52 C 668]. Two opposing parties to a dispute cannot be proceeded against in one proceeding [Kishore, AIR 1926 Pat 32 : 88 Ind. Cas. 864; Sajan AIR 1943 Pat 417 : 88 Ind. Cas. 864]. Trying a case as a warrant case vitiates the proceedings [Uttam, AIR 1925 A 695; see section 116(2)]. Accused cannot be directed to pay costs [Sheo Pd, AIR 1924 A 694].

Some cases have held that in the absence of evidence, willingness by a person to give security does not justify an order against him [Ram Ch., 35 C 674; Jagdat, 21 Cr LJ 176; Joti, AIR 1925 Lah 135 : 81 Ind. Cas. 198; Mulchand, 37 A 30; Prabhudas, 21 Cr LJ 656], but in other, the view taken is that such order is legal as readiness to give security amounts to a plea of guilty [Ghariba, 46 A 109; Nasir, 50A 120; Kishan, 50 A 599; Sadhu 36 Cr LJ 1212; Dukhi, 38 Cr LJ 302; Mohmad Yasin v State of Gujarat, AIR 1969 Guj 267 : 1969 Cr LJ 1133 : 10 Guj LR 847]. There may however be cases where it cannot be so construed [Kurwa, AIR 1928 All 357 : 113 Ind. Cas. 282; Rai Singh, 20 Cr LJ 105]. Magistrate can drop the proceeding when he is satisfied that there is no apprehension of breach of peace [Sheokaran, AIR 1958 Raj 180 : 1958 Cr LJ 970 : RLW 1958 Raj 196 ; Asghar Khan v State, AIR 1964 All 391 : 1964 (2) Cr LJ 260 : 1963 All WR 365 : 1963 All CrLR 197cited ante—Contra : Chandra Kishore Deb Barma v Jogendra Chandra Deb, AIR 1965 Tri 20 : 1965 (1) Cr LJ 602 ]. [s 107.18] Transfer of case.— See notes to section 192 post. [s 107.19] Nature of proceedings.— Application under section 107 is not a complaint within section 2 (d) [Yusuf, 53 148; Re : Manickam Reddy, AIR 1968 Mad 225 : 1968 Cr LJ 760 : 1967 Mad LW (Cri) 173 ]. Proceedings under section 107 are of a criminal nature [Wazed, 41 C 719; Lalit 28 C 709; Desikachari, 39 M 539; Md. Niaz, 41 A 503] and the person proceeded against is in the position of an accused [Hopcroft, 36 C 163; Venkatchinnaya, 43 M 511; Mutsaddi, 21 A 107—Contra. He is not an accused, Rex v Ram Dayal, AIR 1950 All 134 : 1950 Cr LJ 436 : 1949 All LJ 413 : ILR (1950) All 935 ; Benode, 50 C 985; B. Moosa Mohammad v Amin, AIR 1967 Ker 194 : 1967 Cr LJ

Page 9 of 10 [s 107] Security for keeping the peace in other cases.— 1330 : 1966 Ker LT 966 : 1967 Mad LJ (Cri) 178] and no question of framing charges or finding him guilty and sentencing him arises [Moosa, sup]. It is noteworthy that throughout the sections relating to security, the word “person” has been used to the exclusion of “accused”.

Proceedings are of a quasi-criminal nature and a suit for malicious prosecution lies in respect of information given under the section [Crowdy, 18 IC 787; Chiranji, AIR 1921 All 173 : (1921) ILR 43 All 402; Inder Singh Anup Singh v Harbans Singh, AIR 1955 Punj 139 : 1955 Cr LJ 989 : ILR (1955) Punj 392 ]. [s 107.20] Breach of peace: show cause notice.— The petitioners had been directed by the Magistrate to appear before him and to show cause as to why they should not execute a bond of maintaining peace, for a period of one year with security bond of Rs. 1000/-his sureties of equal amount. It was alleged in the said notice that the petitioners were abusing respondent on flimsy grounds and were threatening him. Further, petitioners abstracted respondent from taking possession of the shop. The Magistrate recovered a report from the police station which showed that there was likelihood of breach of peace from the side of the petitioners. It was held that the order directing petitioners to show cause for execution of bond of good behaviour could not be interfered with [Noor Hasan Abdul Shaikh v State of Maharashtra, 2003 Cr LJ 4007 : 2003 All MR (Cr) 1888 : 2003 (3) Bom LR 967 (Bom)]. [s 107.21] Ordered to execute a bond.— Cash may be taken (section 445). Commencement of period (section 119). Forfeiture (section 446). The amount and the period mentioned in the notice may be varied [Baijore, 1895 AWN 241]. Order to execute a bond for good behaviour cannot be made [Driver, 25 C 798]. A person cannot be asked to execute a bond in order to prevent another person from committing breach of the peace [Ram Coomar, 17 WR 54; Kashi, 19 WR 47]. Sufficient time should be given to furnish security [Mg Tin, AIR 1925 Rangoon 353 : 92 Ind. Cas. 702]. Liability of surety is independent of the liability of the principal [Narain Sahai v Emperor, AIR 1946 All 333 FB : (1946) 47 Cr LJ 757 : 1946 All WR 141].

Opposing parties in a dispute cannot be proceeded against in a joint inquiry under section 107. [KD Murugesan v State by Inspector of Police, 1984 Cr LJ 760 : 1983 (2) crimes 712 : 1983 Mad LW (Cri) 221 : 1984 Mad LJ (Cri) 192 (Mad)].

Where complaint under section 107 is recorded against some persons after arresting them under section 151 and are produced before Executive Magistrate, he has no jurisdiction to send them to jail unless bail is furnished [Divyajit Mehta v SS Katara, 1983 Cr LJ 315 : (1982) 23 Guj LR 136 (Guj)].

Mere fact that counterpetitioners are RSS workers, and even if there is rivalry with marxist petitioners and there is tension prevailing, does not justify action under section 107 [Moidu v State of Kerala, sup, AIR 1983 (NOC) 58 : 1982 Cr LJ 2293 : 1982 Ker LT 578 (Ker-FB)]. [s 107.22] Sub-section (2) : Territorial Jurisdiction.— Under sub-section (2) any executive Magistrate can initiate proceeding when (i) either the place where the breach of the peace is apprehended is within his local jurisdiction or (ii) the person who is likely to commit a breach of peace beyond such jurisdiction is residing within his jurisdiction. [s 107.23] Temporary residence.— Temporary residence is sufficient [Shamacharan, 24 C 344; Hriday, 41 Cal WN 1091 : AIR 1937 Cal 520 : 171 Ind. Cas. 335; Varadarajalu, 35 Cr LJ 626; Ziamullah, 22 Cr LJ 109], but not enforced detention in police custody [Krishnaji, 23 B 32; Chota, 1884, AWN 85]. Presence in court in obedience to a summons is not presence within jurisdiction [Hamid, 54 A 341]. The section says nothing about residence; temporary presence within jurisdiction at the time proceedings are initiated is enough [Gajanand, AIR 1943 Nag 88 ]; but temporary presence merely at the time of occurrence would not give jurisdiction [Hirday, 41 Cal WN 109]. [s 107.24] Extention of enquiry.— Magistrate should record special reasons for extending enquiry beyond six months. [RY Sama v State of AP, 1997(1) Crimes 585 (AP)]. [s 107.25] Appeal, Revision, etc. —

Page 10 of 10 [s 107] Security for keeping the peace in other cases.— Appeal lies to the Sessions Judge (section 373). Revision lies to the High Court and the Sessions Judge (section 397). A person bound over is “convicted” though not of an offence, and section 389 is applicable and also section 386(1)(e) [Katwaroo, 54 A 861 : AIR 1932 A 680; Darsu, AIR 1934 All 845 — Contra : (1934) 4 AWR 76 : 152 Ind. Cas. 785; Charan, AIR 1930 Pat 274 : 125 Ind. Cas. 792]. Retrial can be ordered [Bhagwat, 48 A 501]. High Court (or Sessions Judge) should interfere in the preliminary stage when the materials before the Magistrate are clearly insufficient [Nafar, 28 Cal WN 23 : AIR 1924 Cal 114 : 76 Ind. Cas. 429] and where there is misuse of the section, proceedings should be quashed [Anandamoy, AIR 1955 AP 55 : 1955 Cr LJ 565 : 1954 (2) Mad LJ 87 : 47 Cal WN 731]. Section 386 clauses (d) and (e) include a power to remit to the lower court after setting aside the order under section 107 or section 110 or section 145 and also to order further inquiry [Prakasa Reddi v Jonnala Pitchireddi, AIR 1955 AP 55 : 1955 Cr LJ 565 : 1954 (2) Mad LJ 87].

Revision should be filed within 30 days [Ramdeo, AIR 1926 All 767 : 97 Ind. Cas. 652 : (1927) ILR 49 All 228]. Order refusing to take action cannot be reversed [Phani, AIR 1925 Cal 262 ; Ramla, AIR 1925 Oudh 138 ].

A showcause notice issued for initiation of proceedings under section 107 of the Code of Criminal Procedure, 1973, being an interlocutory order, would not be interfered in revision [Rameshwar Ahir v State of Jharkhand, 2004 Cr LJ (NOC) 262 (Jhar) : 2004 AIR Jhar HCR 2371].

1

Inserted by the Code of Criminal Procedure (Amendment) Act, 1978 (45 of 1978), section 11.

End of Document

[s 108] Security for good behaviour from persons disseminating seditious matters.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER VIII SECURITY FOR KEEPING THE PEACE AND FOR GOOD BEHAVIOUR

The Code of Criminal Procedure, 1973 CHAPTER VIII SECURITY FOR KEEPING THE PEACE AND FOR GOOD BEHAVIOUR [s 108] Security for good behaviour from persons disseminating seditious matters.— (1) When 2[an Executive Magistrate] receives information that there is within his local jurisdiction any person who, within or without such jurisdiction— (i)

either orally or in writing or in any other manner, intentionally disseminates or attempts to disseminate or abets the dissemination of— (a) any matter the publication of which is punishable under section 124A or section 153A or section 153B or section 295A of the Indian Penal Code (45 of 1860), or (b) any matter concerning a Judge acting or purporting to act in the discharge of his official duties which amounts to criminal intimidation or defamation under the Indian Penal Code (45 of 1860),

(2) makes, produces, publishes or keeps for sale, imports, exports, conveys, sells, lets to hire, distributes, publicly exhibits or in any other manner puts into circulation any obscene matter such as is referred to in section 292 of the Indian Penal Code (45 of 1860), and the Magistrate is of opinion that there is sufficient ground for proceeding, the Magistrate may, in the manner hereinafter provided, require such person to show cause why he should not be ordered to execute a bond, with or without sureties, for his good behaviour for such period, not exceeding one year, as the Magistrate thinks fit. (2) No proceedings shall be taken under this section against the editor, proprietor, printer or publisher of any publication registered under, and edited, printed and published in conformity with, the rules laid down in the Press and Registration of Books Act, 1867 (25 of 1867), with reference to any matter contained in such publication except by the order or under the authority of the State Government or some officer empowered by the State Government in this behalf. [s 108.1] Changes.— This section corresponds to the old section 108 with the following modifications:

Page 2 of 4 [s 108] Security for good behaviour from persons disseminating seditious matters.— (1) The section has been redrafted by dividing into sub-sections (1) and (2) and again sub-dividing subsection (1) into clauses (i) and (ii). (2) In sub-section (1), the words “When a Judicial Magistrate of the first class receives” have been substituted for “Whenever a Chief Presidency or District Magistrate, or a Presidency Magistrate or Magistrate of the first class especially empowered by the State Government in this behalf”, has, See “1980 Amendment” below. (3) Old clauses (a) and (b) have been combined into sub-clause (a) and the italicised words have been added. (4) Old clause (c) has been renumbered as sub-clause (b) and certain words have been added. (5) Clause (ii) has been newly added. (6) Last para of old section 108 has been numbered as sub-section (2).

Material changes introduced are—

(i)

Power to take action under this section has been vested exclusively in a Judicial Magistrate of the first class. See “1980 Amendment below”.

(ii) Publication of matter punishable under sections 153B (imputation prejudicial to national interaction) and 295A (outraging religious feelings, etc.) has been newly added. (iii) Offence under section 292 of Indian Penal Code, 1860 (obscene matter) has also been included. (iv) In cases of criminal intimidation and defamation of a Judge, his protection has been limited by addition of certain words in sub-clause (b). [s 108.1.1] 1980 Amendment .— With effect from 23 September 1980 in sections 108, 109 and 110, the words “an executive magistrate” have been substituted for “a judicial Magistrate of the first class”, vesting the executive Magistrate with the powers, since these security proceedings are not really trials but are designed to play role in the prevention of crimes for maintenance of law and order which is the responsibility of executive magistracy. However, if any State prefers to allocate the power to judicial Magistrate, it may do so by following the provision of section 478 which has also been accordingly amended by Act 63 of 1980, section 8. By section 10 of the said Amendment Act a saving provision has been made to the effect that any pending proceedings under sections 108 to 110 before 23 September 1980 shall be dealt with as if the amendment had not been made. [s 108.2] Previous convictions object.— Object of section 108 is not to punish for past conduct [Sarupanand, AIR 1941 Oudh 98 ]. Hence, mere previous conviction does not justify an order under the section. [Raja, ILR 10 B 174]. The words there is sufficient ground for proceeding indicate that repetition of the offence must be probable [Ramphul, AIR 1933 L 2356].

For English law before Public Order Act, 1986, see Law Commission of England Report No. 145, offences against Religion and Public Worship (1985). [s 108.3] Section 108(1)(i)—Dissemination.— In the UN Convention against all Forms of Racial Discrimination 1965, Article 4(a) prohibits the following acts:

Page 3 of 4 [s 108] Security for good behaviour from persons disseminating seditious matters.—

(1) all dissemination of ideas based on racial superiority. (2) all dissemination of ideas based on racial hatred.

In the United States, courts have held as valid. (Inter alia speech that disseminates official secrets [Snepp v United States, (1988) 444 US 50) (New South Wales)].

The USSR Law on Press and other Mass Information Media of 12 June 1990 in Article 5 (which deals with impermissibility of abuse of freedom of speech provides as under:—

The use of mass information media. “to make propaganda for... racial or religions exclusively or intolerance to disseminate pornography or to incite the commission of other criminally punishable acts is not permissible”. [s 108.4] Scope and application of section 108.— This and the next two sections specify the classes of persons from whom security can be demanded for good behaviour. The object also is the prevention and not punishment of offences. Section 108 contemplates the dissemination of matter (spoken or written) so as to commit an offence under (a) section 124A of Indian Penal Code, 1860, or (b) section 153A of Indian Penal Code, 1860, or (c) 153B of Indian Penal Code, 1860, or (d) 295A of Indian Penal Code, 1860, or (e) of criminal intimidation (section 503 of Indian Penal Code, 1860) or defamation (section 499 of Indian Penal Code, 1860) of a judge or publishing and distributing of obscene matter (section 292 of Indian Penal Code, 1860). Section 108 does not contravene Article 19(1)(a) of the Constitution of India. In view of sections 436, 441 and 442, a court can keep in custody a person against whom proceeding under section 108 in pending [Balroop Singh v State of UP, AIR 1956 All 270 : 1956 Cr LJ 473 : 1956 All LJ 148 : 1956 All WR 98].

The question under the section is whether there has been “intentional” dissemination of the offending matter and whether there is fear of the repetition of the offence. In each case, it is a question of fact to be determined with reference to the antecedents of the person and other surrounding circumstances [Vaman, 11 Bom LR 743]. Mere dissemination is not sufficient. It must be done with a particular intention and the real intention of the accused must be looked at [Chakravarti, 33 Cal WN 953 : 54 C 59].

According to several rulings, commission of a single or isolated offence at a particular time does not justify action under section 108. It should be shown that there is an intention of disseminating or continuing his activities in the immediate future [Chiranji, 50 A 854; Jagannath, 32 Cr LJ 1172; Chandrabhan, 35 Cr LJ 562; Sarupanand, AIR 1941 O 98; Ramphul, AIR 1933 Lah 236 ]. It has however, been held in Patna that “disseminates” does not refer to the number of acts done or to a habit. A single habit is enough if it is shown that repetition is probable [Gudri, AIR 1932 Pat 213 : 139 Ind. Cas. 88].

Ordinary residence within jurisdiction is enough, although the person may be beyond where the order is made [Narsingh, AIR 1937 Nag 70 : 167 Ind. Cas. 739 : [1936] ILR Nag 200]. Mere fact that section 108 is applicable does not make section 110 inapplicable [Manindra, 46 C 215]. Recourse to section 108 is unjustifiable when the object is to avoid the possible refusal of Government to prosecute under section 153 of Indian Penal Code, 1860 [Chiranji, 50 A 854]. [s 108.5] Section 108(1)(i), Sub-clause (a).— It is essential that there must be dissemination of matter which is seditious [Tilak, 19 Bom LR 211; Beni, 11 Cal WN 1050; Pitre, 47 B 438; see Secy., AIR 1932 Lah 559 : 139 Ind. Cas. 696; Jagannath, AIR 1932 Lah 7 : 134 Ind. Cas. 486]. Publisher also is liable as he is presumed to have knowledge of the contents. As to printer, proof of knowledge is necessary, especially, if the press is big [Pitre, sup].

Page 4 of 4 [s 108] Security for good behaviour from persons disseminating seditious matters.— “Any matter the publication of which is punishable under section 153A, Indian Penal Code, 1860” means “matter which is vehicle of an attempt to promote enmity”. Publishing words that have a tendency to promote class hatred does not fall within section 153A. Intention to promote ill-feeling is necessary and the real intention of the accused is the test [Chakravarti, 30 Cal WN 953, 957, 958 (Sital, 43 C 591, a decision before the insertion of intentionally superseded) : AIR 1926 Cal 1133 : 97 Ind. Cas. 738 : (1927) ILR 54 Cal 59]. [s 108.6] Section 108(1)(i), Sub-clause (b).— Acting or purporting to act in the discharge of his official duties—See notes to section 197. [s 108.7] Section 108, Clause (ii).— It appears that here mere putting into circulation is enough in contrast to offending matters in clause (i) where mere dissemination is not sufficient but there must be intentional dissemination. [s 108.8] Edited, etc. — The protection extends only to newspapers which are edited in conformity with the Press and Regulation of Books Act and not to unauthorised publications. [s 108.9] Procedure and evidence.— The procedure is that of summons cases [section 116(2)] See also section 273.

Prior speeches are relevant in determining state of mind and intention [Jogendra, 19 C 35; Phanindra, 35 C 945; Tilak, 22 B 112; Chidambaram, 32 M 3; Jagannath, AIR 1940 Nag 134 : [1942] ILR Nag 62; Chamupati, AIR 1932 Lah 99 : (1932) ILR 13 LAH 152]. [s 108.10] Surety.— (See ante, section 106: “Bond” and post, section 109 : “Bond with or without surety”). Fixing a large amount which leaves no option but to go to jail is improper [Secy, AIR 1932 Lah 559 : 139 Ind. Cas. 696]. [s 108.11] Appeal and revision.— Same as in section 107.

2

Substituted for the words “a Judicial Magistrate of the first class” by the Code of Criminal Procedure (Amendment) Act, 1980 (63 of 1980), section 2 (w.e.f. 23 September 1980).

End of Document

[s 109] Security for good behaviour from suspected persons.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER VIII SECURITY FOR KEEPING THE PEACE AND FOR GOOD BEHAVIOUR

The Code of Criminal Procedure, 1973 CHAPTER VIII SECURITY FOR KEEPING THE PEACE AND FOR GOOD BEHAVIOUR [s 109] Security for good behaviour from suspected persons.— When 3 [an Executive Magistrate] receives information that there is within his local jurisdiction a person taking precautions to conceal his presence and that there is reason to believe that he is doing so with a view to committing a cognizable offence, the Magistrate may, in the manner hereinafter provided, require such person to show cause why he should not be ordered to execute a bond, with or without sureties, for his good behaviour for such period, not exceeding one year, as the Magistrate thinks fit. [s 109.1] Changes.— Section 109 corresponds to the old section 109 with the following changes:

The words “When a Judicial Magistrate of the first class” have been substituted for “Whenever a Presidency Magistrate, District Magistrate, Sub-divisional Magistrate or Magistrate of the first class”. See 1980 Amendment below;

(2) Old clause (b) has been omitted and the matter of clause (a) has been redrafted and consolidated in the section with following alterations:

(i)

the words “there is within his local jurisdiction a person taking precaution to conceal his presence” have been substituted for “any person is taking precautions to conceal his presence within the local limits of such Magistrate’s jurisdiction”.

(ii) the words “a cognizable offence” have been substituted for “any offence”.

(3) the words “or without” have been inserted before “sureties”.

The material changes introduced are:

Page 2 of 4 [s 109] Security for good behaviour from suspected persons.— (1) Power to take action under the section has been exclusively vested in a Judicial Magistrate of the first class. See 1980 Amendment below. (2) The scope of the section has been reduced by deleting old clause (b) relating to persons who have no ostensible means of subsistence, or who cannot give a satisfactory account of themselves. (3) The words “there is within his local jurisdiction a person taking precaution to conceal his presence” have been substituted for former words [see item (2)(i) above to remake a conflict to judicial opinion] (see note under “Concealing presence...Cognizable offence” below) and make it clear that it is not necessary that the person against whom action is to be taken should have come from outside the Magistrate’s jurisdiction. (4) The action has also been restricted to cases where the suspected offence is a cognizable offence. (5) The bond to be executed could be without surety if the Magistrate thinks it fit. [s 109.1.1] 1980 Amendment .— With effect from 23 September 80 the words “an executive Magistrate” have been substituted for a “Judicial Magistrate of the first class”. See “1980 Amendment” under section 108. [s 109.2] Scope and application of section 109.— This section deals with a person who being or coming within the limits of a Magistrate’s jurisdiction takes precaution to conceal his presence with a view to committing a cognizable offence. The object is to enable a Magistrate to proceed against suspicious strangers lurking within his jurisdiction [Satis, 39 C 456, 462; Shk Piru, AIR 1925 P 616; Madho, 31 C 557].

Credible information is the foundation of a Magistrate’s jurisdiction [Madho, sup; see notes to section 107, ante: “Jurisdiction for Action”]. As the section is restrictive of liberty, it must be applied only when strictly applicable [Ganpati, AIR 1938 Nag 465 ; Kartar, 1952 Pu 422]. The provisions of the section are so stringent that it may be made an engine of oppression unless care is taken by the Magistrates to prevent its abuse [Victor, 30 Cal WN 380, 381 : AIR 1926 Cal 648 : 93 Ind. Cas. 961 : (1926) ILR 53 Cal 345]. An order on the ground that it is not safe to allow unrestricted personal liberty to a person is illegal [Kalipada, 42 Cal WN 816].

Procedure to be followed by Magistrate on invoking section 109 stated [State of Karnataka v K Kumar, 1980 Cr LJ 1404 : ILR (1980) 1 Kant 752 (Kant)]. This section and section 110 overlap one another. A fact not relevant under this section may form the basis of proceeding under section 110 [Kasakumaran, 38 M 556; Rangaswamy, 38 M 555]. Nor can an order be passed under section 110 during the continuance of an order under section 109 [Golam, 8 Cal WN 543]. Person already convicted under section 411 of Indian Penal Code, 1860 cannot be bound over on the same facts [Lal, AIR 1928 Lah 928 : 112 Ind. Cas. 467].

Such person may be arrested without a warrant by an officer in charge of a police station under section 41(2). It cannot be said that a person must be arrested under section 41(2) before action under section 109, or that a person so arrested cannot be proceeded against under section 109 [Rex v Ram Dayal, AIR 1950 All 134 : 1950 Cr LJ 436 : 1949 All LJ 413 : ILR (1950) All 935 ]. Action taken by a Magistrate of inferior grade is void [section 461(d)]. [s 109.3] Concealing presence with a view to committing cognizable offence.— Two things are necessary: (i) taking precautions to conceal presence and (ii) the concealment must be with a view to commit an offence [Sunil Kumar Saha v The State, AIR 1958 Cal 191 : 1958 Cr LJ 500 : 61 Cal WN 557; Satish, 39 C 456; Preonath, 15 Cr LJ 255; Sheetal Baksh Singh v Rex, AIR 1950 All 184 : 1950 Cr LJ 609 : 1949 All LJ 565]. Concealment merely to avoid observation is not an offence (Satish, sup; Shk Piru, A 1925 C 616], nor is concealment to avoid the society of the police within the section [Rambirich, 6 P 177, 183; Lakhman, AIR 1941 Pat 478 ; Bishi, AIR 1935, P 69; Shk Piru, sup]. Mixing or moving with the crowd in the waiting shed of a railway station without purchasing a ticket does not amount to taking precaution to conceal one’s presence [Re : Singaraju, AIR 1955 NUC (M) 3914 : 1955 (2) Mad LJ 336 : 1955 (2) Mad LJ 336]. Mere concealing of face or moving briskly at the sight of the police or running away when called out is not sufficient to

Page 3 of 4 [s 109] Security for good behaviour from suspected persons.— attract section 109 [Thandavarayan, 1955 (2) Mad LJ 659]. Opening of door of ones own house at midnight when asked to do so, indicates no concealment [Prahlad Sahni v State, AIR 1960 Pat 115 : 1960 Cr LJ 386 : 1959 BLJR 559 ].

Following cases referring to “concealing presence” under clause (a) of the old Code may be noted—to resolve which changes have been made (see “changes” above). Clause (a) applies only when some one takes precaution to conceal himself within the limits of the Magistrate’s jurisdiction, not to conceal himself as one who hides from a policeman but conceal the fact of his infesting the Magistrate’s jurisdiction, and when further there is reason to believe that this precaution is being taken with a view to commit an offence [Gagan, 34 Cal WN 194 : 56 C 949]. In this case, Rankin, CJ. relied on the “Correct exposition” in Bhairon, 49 A 240, where it has been held that the passing “within the… jurisdiction” is part of the predicate “to conceal his presence” : and the offence contemplated is probably coming from outside the jurisdiction, into the Magistrates jurisdiction, for some nefarious purpose. Bhairon, sup was subsequently overruled in Allahabad by a later case which held that concealing presence in a part of the territorial limits of jurisdiction of a Magistrate is necessarily concealing presence within the jurisdiction also. In such a case, such Magistrate has power to proceed even though the residence of the person informed against within the jurisdiction is well-known [Phuchai, 50 A 909 FB; Rex v Ram Dayal, AIR 1950 All 134 : 1950 Cr LJ 436 : 1949 All LJ 413 : ILR (1950) All 935 ; Chhutai, AIR 1941 O 509]. [s 109.4] Continuity of acts.— Some cases have held that it refers to continuous act of concealment and not to a momentary or isolated act of concealment [Sunil Kumar Saha v The State, AIR 1958 Cal 191 : 1958 Cr LJ 500 : 61 Cal WN 55; Rashu, 22 Cal WN 163; Shk Piru, AIR 1925 C 616; Gobra, 1929; Isabali, 42 Cal WN 588]—Contra. There can be no hard and fast rule as to continuity of concealment, for it is a question of fact in each case [Phuchai, sup; Ramdayal, sup: Ram Murti v KingEmperor, AIR 1946 Oudh 230 : (1946) 47 Cr LJ 642 : 224 IC 551 : ILR 21 Luck 251; Rambirich, AIR 1926 Pat 569 : (1927) ILR 6 PAT 177 : 97 Ind. Cas. 648; Sukhan, 31 Cr LJ 1125; Manik, AIR 1934 Oudh 367 ; Ganapati, AIR 1938 Nag 465 ]. [s 109.5] Concealing presence.— Concealing presence is wide enough to cover concealment of appearance by mask, disguise, etc. [Abdul Ghafoor, AIR 1943 All 367 : (1943) 13 AWR 254 ].

The following are not within the section—Concealing identity as a beggar for cheating another (Kashi, AIR 1934 All 45 : (1933) 2 AWR 1050 ]; merely found talking at night with bad characters [Lakhman, AIR 1941 Pat 478 ; Rambirich, AIR 1926 Pat 569 : (1927) ILR 6 PAT 177 : 97 Ind. Cas. 648]; running away when challenged at night [Bishambhar, 29 Cr LJ 864]; alighting at the platform even if it be to commit an offence as there is no concealment [Abdul Latif, AIR 1943 All 368 : (1943) 13 AWR 255 ]; or moving in a platform with the head muffled up [Sunil Kumar Saha v The State, AIR 1958 Cal 191 : 1958 Cr LJ 500 : 61 Cal WN 557]; making a nuisance of himself, e.g., shouting, singing, avoiding arrest, etc. Md. Rafi, AIR 1943 All 369 : (1943) 13 AWR 255 ]. [s 109.6] Bond with or without surety.— Form [Schedule 2, No. 13). Unlike sections 106 and 107 depositing cash cannot be accepted under section 109 or section 110 section 445; Kalachand, 6 C 14], the object being to make the surety (section 121). Once a surety is accepted, Magistrate cannot cancel the bond because he considers him unfit [Ramlal, 1 Cal WN 349].

Breach of bond takes place when any offence punishable with imprisonment is committed. Being found again in suspicious circumstances would not result in forfeiture, though it may justify fresh proceeding [Bahadur, AIR 1942 A 58]. [s 109.7] Procedure and evidence.— The procedure is that of a summons case [section 116(2)]. See also section 273. Section 109 merely requires the issue of a notice. The final order is passed under section 117 which in its turn is dependent upon the order passed under section 111 [Rangi, AIR 1936 Nag 265 : 167 Ind. Cas. 403]. A number of persons can be tried together but it should not be done except where the evidence applies to all [Muhammad, 25 Cr LJ 952; See section 116 (5) post and notes]. A person called on under section 109 and another under the next cannot be dealt with in one and the same enquiry [Mohan, 2 Cr LJ 224].

Page 4 of 4 [s 109] Security for good behaviour from suspected persons.—

Evidence of police officer not based on personal knowledge but on inquiries is inadmissible [Lakhman, AIR 1941 Pat 478 ]. Evidence that the accused’s general way of life is unsatisfactory is not admissible [Abdul Gafoor, AIR 1943 All 367 : (1943) 13 AWR 254 ]. As the person proceeded against is not prosecuted for any offence, his statement is not affected by section 26 of Evidence Act or section 162 of the Code [Rex v Ram Dayal, AIR 1950 All 134 : 1950 Cr LJ 436 : 1949 All LJ 413 : ILR (1950) All 935 ]. As to evidence of bad character of previous conviction, see Sarkar’s Evidence, 12th Edn pp 548–52. [s 109.8] Appeal.— Appeal lies to the Sessions Judge (section 373). Revision lies to the High Court and Sessions Judge (section 397). Appellate Court can alter section under which security is to be taken [Hafiz Ahesanali, AIR 1938 Nag 303 ]. High Court will not interfere in revision unless there is a material departure from legal principles in the trial [Sundar, 31 Cr LJ 189], No second appeal lies against order. It was treated as revision [Samad Bhat v State, AIR 1969 J&K 105 : 1969 Cr LJ 1139 ].

3

Substituted by the Code of Criminal Procedure (Amendment) Act, 1980 (63 of 1980), section 2 for the words “a Judicial Magistrate of the first class” (w.e.f. 23 September 1980).

End of Document

[s 110] Security for good behaviour from habitual offenders.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER VIII SECURITY FOR KEEPING THE PEACE AND FOR GOOD BEHAVIOUR

The Code of Criminal Procedure, 1973 CHAPTER VIII SECURITY FOR KEEPING THE PEACE AND FOR GOOD BEHAVIOUR [s 110] Security for good behaviour from habitual offenders.— When 4 [an Executive Magistrate] receives information that there is within his local jurisdiction a person who— (a) is by habit a robber, house-breaker, thief, or forger, or (b) is by habit a receiver of stolen property knowing the same to have been stolen, or (c) habitually protects or harbours thieves, or aids in the concealment or disposal of stolen property, or (d) habitually commits, or attempts to commit, or abets the commission of, the offence of kidnapping, abduction, extortion, cheating or mischief, or any offence punishable under chapter XII of the Indian Penal Code (45 of 1860), or under section 489A, section 489B, section 489C or section 489D of that Code, or (e) habitually commits, or attempts to commit, or abets the commission of, offences, involving a breach of the peace, or (f)

habitually commits, or attempts to commit, or abets the commission of— (i)

any offence under one or more of the following Acts, namely:— (a) the Drugs and Cosmetics Act, 1940 (23 of 1940); (b)

5[the

Foreign Exchange Regulation Act, 1973 (46 of 1973)6;]

(c) the Employees Provident Funds 7[and Family Pension Fund] Act, 1952 (19 of 1952)8; (d) the Prevention of Food Adulteration Act, 1954 (37 of 1954)9; (e) the Essential Commodities Act, 1955 (10 of 1955); (f)

the Untouchability (Offences) Act, 1955 (22 of 1955)10;

(g) the Customs Act, 1962 (52 of 1962); 11[* * *] (h)

12[he

Foreigners Act, 1946 (31 of 1946); or]

(ii) any offence punishable under any other law providing for the prevention of hoarding or profiteering or of adulteration of food or drugs or of corruption, or (g) is so desperate and dangerous as to render his being at large without security hazardous to the community, such Magistrate may, in the manner hereinafter provided, require such person to show cause why

Page 2 of 10 [s 110] Security for good behaviour from habitual offenders.— he should not be ordered to execute a bond, with sureties, for his good behaviour for such period, not exceeding three years, as the Magistrate thinks fit. [s 110.1] Changes.— Section 110 corresponds to the old section 110 with the following changes :

(1) The words “When a Judicial Magistrate of the first class” have been substituted for “Whenever a Presidency Magistrate, District Magistrate, or Sub-divisional Magistrate or a Magistrate of the first class especially empowered in this behalf by the State Government”. See 1980 Amendment below. (2) Old clause (f) has been re-numbered as clause (g) and a new clause (f) has been inserted. Material changes introduced are:

(i)

Power to take action under the section has been vested exclusively in a Judicial Magistrate of the first class. See 1980 Amendment below.

(ii) Some new offences of anti-social nature such as those relating to adulteration of food or drugs, or foreign exchange or customs or hoarding and profiteering or corruption, etc. have been brought within the purview of this section but insertion of new clause (f).

[s 110.1.1] 1974 Amendment.— Section 110(f)(i)(b) has been substituted vide the Amending and Repealing Act (56 of 1974). This Amending Act also inserted the words “and Family Pension Fund” in section 110(f)(i)(c) of the Code. [s 110.1.2] 1980 Amendment .— With effect from 23 September 1980 the words “an Executive Magistrate” have been substituted for “a Judicial Magistrate of the first class”. See 1980 Amendment under section 108. [s 110.1.3] Criminal Procedure Code (Amendment) Act, 2005 (25 of 2005).— In section 110 of the Principal Act, in clause (f), in sub-clause (i),

(i)

in item (g) the word “or” shall be omitted;

(ii) after item (g) the following item shall be inserted, namely:

“(h) the Foreigners Act, 1956 (31 of 1946); or”.

Notes on Clauses

In order to effectively deal with offences under the Foreigners Act, 1946 a need has been felt to strengthen the hands of States authorities by empowering them to take action under section 110 of the Code against persons assisting infiltration. This will help to check the flow of undesir-able foreigners into the country. The Foreigners Act, 1946 is, accordingly, being added as item (h) of sub-clause (i) of clause (f). (Notes on clauses, clause 14)

Page 3 of 10 [s 110] Security for good behaviour from habitual offenders.— This amendment in the section has come into force with effect from 23 June 2006 vide Notification No. S.O. 923(E), dated 21 June 2006. [s 110.2] Scope and application of section 110.— The intention is to afford protection to the public against hardened or habitual criminals or bullies or a dangerous and desperate class who menace the security of person or of property [Rajendra, 17 Cal WN 238 : 18 Ind. Cas. 149; Beni, AIR 1929 All 608 : 117 Ind. Cas. 346; Rathinam, AIR 1938 Mad 35 : 172 Ind. Cas. 866 : 1937 46 LW 858 - (1937) 2 Mad LJ 749; Nawab, 2 A 835; Pedda, 3 M 238, Manindra, 46 C 215; Emperor v Vijaidatta Jha, AIR 1948 Nag 28 : (1947) 48 Cr LJ 252 : 1947 Nag LJ 141 ]—persons who cannot readily be brought under the ordinary penal law and who for special reasons cannot be convicted for the offences said to have been committed by them [Shanmugham, 39 Cr LJ 588]. The section is preventive and not punitive [Rajendra, sup; Billa, 12 Cr LJ 328; Vijaidatta, sup]; its sole purpose is to secure future good behaviour and not to punish for past offences [Umbica, 1 CLR 268, 271; Raja Valad, 10 B 174; Gagat, AIR 1921 L 179; Jafar, AIR 1933 All 859 : (1933) 2 AWR 500 : 147 Ind. Cas. 551]. But the mere fact that there is reason to suppose that a person has committed a substantive offence is no bar to the initiation of a proceeding under section 110 [Sundarlal, AIR 1933 All 676 : (1933) 2 AWR 456 : 146 Ind. Cas. 900; Chandan, 31 Cr LJ 627], though when some definite offence has been committed, an order under section 110 should not be passed as it would seriously prejudice him in the trial for that offence [Anukul, 27 C 781].

Proceedings under chapter VIII of the Code.—Section 110 of the Code is permissive and enabling. This section permits an Executive Magistrate of the first class to require a person against whom he receives information of the kinds covered in clauses (a) to (g) to show cause in the prescribed manner why he should not be required to execute a bond with sureties for good behaviour for a period not exceeding three years. The section requires that the show cause is to be issued “in the manner hereinafter provided”. This is a reference to the procedure delineated in the subsequent sections. The Magistrate enjoys no discretion at all in this regard; the procedure must be followed. Section 111 says that when a Magistrate who acts under section 107 through 110 deems it necessary to require a person to show cause under any of those sections, he must make an order in writing. That order must contain the substance of the information received, the amount of the bond executed, the proposed term for which it is to be in effect, and the number, character and class of sureties, if any, required. That order is a condition precedent to the issuance of a show cause notice. [Farhan Khan v State of Maharashtra, 2014 Cr LJ 1314 : 2013 ALL MR (Cri) 3919 : 2014 (3) BomCR (Cri) 751 : 2014 Cr LJ 1314 : 2014 (3) RCR (Criminal) 625; Dattaram Krishna Pedamkar v State of Maharashtra, 2009 (3) Mh LJ (Cri) 47 : 2009 (6) ABR (NOC) 1295 (Bom).]

Preventive detention in Article 22 of the Constitution of India is otherwise than by order of the court. Detention on failure to furnish security under chapter 8 is by an order of the court. sections 110, 117 and 122 have not been rendered void by Article 22 [Jit Bahadur Singh v State, AIR 1953 All 753 : 1953 Cr LJ 1759 : 1953 All LJ 438 : 1953 All WR 429; In re: Seetharaman, AIR 1956 Mad 292 : 1956 Cr LJ 750 : 1956 (1) Mad LJ 232; Re : Shaik Kalesha, AIR 1957 AP 268 : 1957 Cr LJ 826 : 1956 Andh WR 450; Mannava Venkayya v Kanneganti China Punnaiah, AIR 1957 AP 90 : 1957 Cr LJ 624 : 1956 Andh LT 745 : 1956 Andh WR 485].

The main object of the provisions of section 110 of Code of Criminal Procedure, 1973 is to prevent a person to commit offences frequently which means in other words to check a habitual offender from committing any offence [DebualiasDebashi Debabrata Tripathi v State, 1995 Cr LJ 3547 (Ori)].

The accused was not released even after his serving the sentence of total period for which he was sentenced under section 376 of Indian Penal Code, 1860. He was subjected to proceedings under section 110 of Code of Criminal Procedure, 1973 and sentenced to imprisonment under section 110 /117 for not furnishing security for his keeping peace and good behaviour. It was held that the accused could not be detained beyond the period for which he had been sentenced under section 376 of Indian Penal Code, 1860 and his detention could not continue on the basis of sentence under section 110/41 of Code of Criminal Procedure, 1973 read with section 122 of Code of Criminal Procedure, 1973 nor his sentence stood deferred from his conviction in a rape case [Rakesh v State of Rajasthan, 2008 Cr LJ 4416 (4419) (Raj) : 2008 CrLR (Raj) 1227 ]. [s 110.3] Need for caution.—

Page 4 of 10 [s 110] Security for good behaviour from habitual offenders.— The section provides a powerful means and it should be used very sparingly in very clear cases [Rajendra, sup; Gagat AIR 1921 L 179]. If not used with caution and discretion, it might easily become an engine of oppression [Emperor v Vijaidatta Jha, AIR 1948 Nag 28 : (1947) 48 Cr LJ 252 : 1947 Nag LJ 141 ]. It is not intended to secure indirectly a conviction in cases where a prosecution for a substantive offence is likely to fail [Mannilal, 51 A 459; Vijaidatta, sup; see Shiamlal, 9 Cr LJ 528]. Nor should proceedings be instituted to bind down a person on an indefinite charge after prosecution on definite charges have failed [Alep, 11 Cal WN 413; Rajaram, 22 Cr LJ 273; Jai Singh, 31 Cr LJ 1020; Bhagat, AIR 1924 O 33; Islamuddin, AIR 1939 Lah 269 ; Lachman, AIR 1927 All 473 —Contra : 102 Ind. Cas. 211; Rajkaran, 32 A 55], as evidence disbelieved for conviction on such charges should not be relied upon to prove his dangerous character [Kismat, 11 Cal WN 129; Parbati, AIR 1934 Cal 482 ; Jhandu, 25 Cr LJ 45; Sital, 25 Cr LJ 366]. The section is not intended to afford the police a means for keeping a suspected person under detention until they are able to work out a case against him [Paimal, 13 Cr LJ 827] nor should it be availed of to secure the punishment of a person merely suspected [Bhagwat, 23 Cr LJ 119].

There is no legal bar to a proceeding under section 110 after acquittal of a substantive offence, but a strong case should be made out and the court must be satisfied that the police is not actuated by desire to get hold of the person after failure to secure a conviction [Lachman, AIR 1927 All 473 ; Bahadur, AIR 1925 Oudh 501 : 85 Ind. Cas. 370; Abdulla AIR 1926 Lah 190 ; Bhagwat, AIR 1922 Oudh 26 ].

The section should not obviously be used against mere undisciplined people, such as local bosses and faction leaders [Rathinam, AIR 1938 Mad 35 : 172 Ind. Cas. 866 : 1937 46 LW 858 : (1937) 2 Mad LJ 749; Krupasindhu Panigrahi v Rex, AIR 1951 Ori 277 : (1951) 52 Cr LJ 848 : ILR 1949 Cut 751 ], but leaders of local factions constantly threatening and bullying are within it [Kataramanayya, AIR 1938 Mad 448 ]; as also persons proved to have high-handedly committed on several occasions acts of mischief or assault and tortured political opponents [Re : Shaik Kalesha, AIR 1957 AP 268 : 1957 Cr LJ 826 : 1956 Andh WR 450]. It should not be used to wreak private vengeance [Kali Pr, 38 C 156], or to coerce landlords however recalcitrant [Rajendra, 17 Cal WN 238; see Narendra, 39 Cr LJ 811], or against litigious persons [Ahmad, AIR 1930 Lah 1051 : 129 Ind. Cas. 276]. [s 110.4] Arrest by police.— Police have no power to arrest a person against whom proceedings are proposed under section 40, unless there is a production warrant issued by the Magistrate [Abdul Naim v State of Orissa, 2000 Cr LJ 1888 : (1999) 88 Cut LT 452 : 2000 (3) Cur Cr R 82 (Ori)]. [s 110.5] Sections 107 and 110.— When the information is as to the likelihood of a breach of the peace, section 107 should be applied and notes 110 [Babua, 6 A 132; Kallu, 27 A 92]. It is open to the police to proceed either under section 401 of Indian Penal Code, 1860 or this section [Hubdar, 34 Cr LJ 852]. Difference between the two sections [RamLakhan, 47 Cr LJ 1019]. Mere fact that section 108 may have been applicable does not necessarily make section 110 inapplicable [Manindra, 46 C 215]. [s 110.6] Order to leave the town.— The section authorises order for security, but an order directing to “leave the town at once or he will be prosecuted as a bad character [Ram Pd, AIR 1921 A 145], or remanding to custody under section 309 (2) [Damodar Majhi v State, 1981 Cr LJ 1450 : (1981) 52 Cut LT 192 (Ori)] is illegal. An order under section 110 is not a conviction so as to attract section 75 of Indian Penal Code, 1860 [Jumo, AIR 1934 SC 195 ]. [s 110.7] “Receives information”.— (See notes to section 107 ante, and also notes to section 111). Information is the foundation of a Magistrate’s jurisdiction. He cannot move unless there is such information as is considered by him sufficient for action [Ganesh, 15 Cr LJ 696; Rajbansi, 42 A 646; Ramghulam, 28 Cr LJ 744], which means of course that it should be credible and come from a reliable source. It should not be mere gossip and vague rumour [Sukha, 1898 PR 4 ; Abdul Khaliques, 16 Cr LJ 281]. There is no limit to the nature or as to the source from which the information is derived [Mithu, 27 A 172; Hiranand, 1 P 621 (information to another Magistrate); Rajendra, 17 Cal WN 238], but order should not be based on Magistrate’s personal knowledge [Alimuddin, 29 C 392; Wali Md., 25 Cr LJ 808; Ashiq Ali, 24 Cr LJ 593]. Proceeding initiated on his own knowledge should be transferred [Alimuddin, sup]. How to use private knowledge [Darbari, AIR 1925 A 451; Ashiq, AIR 1923 All 596 : 73 Ind. Cas. 337].

Page 5 of 10 [s 110] Security for good behaviour from habitual offenders.— [s 110.8] Hearsay.— Information may be of a hearsay or general description [Babua, 6 A 132] as it is not evidence against the accused but merely the ground to initiate proceedings [Mithu, sup; Darbari, 45 A 749 : 25 Cr LJ 781]. The information which should not be vague must show that the man is by habit a robber, housebreaker, thief, etc. [Islamuddin, AIR 1939 Lah 269 ; Narendra, AIR 1938 Pat 533 ]. It must show the habitual bad character of the person. Mere record of previous conviction is insufficient [Raja Valad, 10 B 174; Haidar, 12 C 520; Nawab, 2 A 835]. Police report merely giving bad name to a person and reproducing the words of a section gives no information [Nikka Ram v State, AIR 1954 Punj 6 : 1954 Cr LJ 49 : 55 Punj LR 441]. See also “Evidence” below. [s 110.9] “Within his local jurisdiction”.— “Within” is not equivalent to “residing” [Manindra, 46 C 215]. Literal and physical presence, not residence within the Magistrate’s jurisdiction at the time of initiation of proceedings, is meant [Sonardi, 35 Cal WN 255; Lakhi Narain, 23 Cal WN 100; Kora, 36 M 96; Ghulam, 17 L 453] and so it is sufficient, if the evil habits were practised and evil reputation acquired within that jurisdiction [Durga, 43 C 153; Kasi, 31 C 419; Manindra, sup; Munna, 39 A 139; Bhola, AIR 1922 All 86 : 65 Ind. Cas. 438; Sardar, AIR 1944 SC 106 ; Bappo, 9 Bom LR 244; Ramjibhai, 14 Bom LR 889—Contra Ketabdi, 27 C 993 which has been distinguished in some cases on facts]. A later Bombay view is that in order to give jurisdiction, the Magistrate must receive information that the person is within the limits of his jurisdiction. The section does not refer to the place where the acts were committed [Hanumantrao, AIR 1940 B 204 : 41 Cr LJ 686].

Person who has gone outside the Magistrate’s jurisdiction though temporarily when complaint is made [Hanwant v Emperor, AIR 1948 All 185 : (1948) 49 Cr LJ 194 : 1947 All LJ 624 : 1948 All WR 9; Ramjibhai, 14 Bom LR 889; Satindra, 29 Cr LJ 842], or who is detained in police custody within jurisdiction, is not “within” jurisdiction [Krishnaji, 23 B 32—Contra : Lakhi Narain, 23 Cal WN 100 : AIR 1919 Cal 460 : 49 Ind. Cas. 165]. [s 110.10] Notice given by Magistrate not disclosing allegations and cryptic in nature—Validity.— Where the Magistrate in a notice given to offender for security for good behaviour simply filled in name and particulars of offender on a cyclo-style proforma without giving substance of allegations essential for filing effective reply by him, it was held that being not valid was liable to be set aside [Mahesh Prasad Kannaujia v State of UP, 2010 Cr LJ (NOC) 284 (All)].

Where the order passed by the Magistrate under section 110 Code of Criminal Procedure, 1973 does not set forth substance of information received and amount of bond to be executed in its terms and the said order which is cryptic and runs only in six lines, it cannot be said that the order is validly made under section 111 of the Code [Dattaram Krishna Pedamkar v State of Maharashtra, 2010 Cr LJ (NOC) 294 (Bom)]. [s 110.11] “Habit: Habitually”.— Means that the person must be an offender in respect of offences in clauses (a) to (f) by habit. The words are used in the sense of depravity of character as evidenced by the frequent repetition or commission of offences [Bhubaneshwar, AIR 1927 P 128; Maung Po, AIR 1940 Rangoon 95 ]. They mean repetition or persistency in doing an act and not an inclination by nature [Nanmat, 25 Cr LJ 60; Hanmantrao, AIR 1924 N 19], i.e, commission of similar acts in the past and readiness to commit them again whenever there is an opportunity.

Expressions like “by habit”, “habitual”, “desperate”, “dangerous”, “hazardous” cannot be flung in the face of a man with laxity of semantics. The court must insist on specificity of facts and a consistent course of conduct convincing enough to draw the rigorous inference that by confirmed habit the counterpetitioner is sure to commit the offences if not kept captive. The Magistrate must try cases with great responsibility, and a prisoner must be given the facility of being defended by a council [Gopalanachari v State of Kerala, AIR 1981 SC 674 : 1981 Cr LJ 337 (SC) (Premchand v UOI, AIR 1981 SC 613 : (1981) 1 SCC 639 : 1981 Cr LJ 5 (SC) folld.)].

“Habit” implies a tendency or capacity resulting from frequent repetition of the same or similar acts. It indicates depravity of or criminality in character, evidenced by frequent commissions of offences. Besides proof of number of convictions or course of conduct by evidence of general reputation or prior acts there must be some additional facts or resumed avocation indicating an intention to return to his former course of life and pursuing a

Page 6 of 10 [s 110] Security for good behaviour from habitual offenders.— career prejudicially affecting the community interests [Subbayyan Achari Gopalan Achari v State, 1981 Cr LJ 1359 : 1981 Ker LT 448 (Ker). Habit is proved by an aggregate of acts [Shriram, 6 MHCR 120; Kasem, 47 C 154; Rahman, 29 Cr LJ 574], previous convictions but not by one instance [Nanmat, sup], or one conviction only [Kasim, 5 Cr LJ 24; Kali Prasanna, 8 C 156, 167; Bhona, 38 C 408, 411; Mohan Parmanand Khatri v MG Ingle, 2004 Cr LJ 1017 (1018) (Bom) : 2004 (1) Mah LJ 524 : 2004 (2) Rec CrR 571]. One or two cases may not be sufficient but a number of similar incidents cease to be isolated facts and become evidence of habit and character. How many facts must be proved to draw an inference of habit depends upon the circumstances of each case [Firangi, AIR 1933 P 189]. Habit can be proved by proving that the person has committed burglaries, etc,. to such an extent that he can be said to be a habitual offender or by proving that his general reputation is that of a habitual burglar, etc. [Karey v State, AIR 1959 All 347 : 1959 Cr LJ 673 : 1959 All WR 33 : 1959 All Cr R 74]. Habit is also proved by general repute under section 116 (4). Suspicion is not enough [Husain, 1905 AWN 34]. See also “Evidence”infra.

Section 110(a) can be attracted only when a person is proved by habit a robber, house-breaker, thief or forgerer or by habit or receipt of stolen property. The proof will only be available after the petitioner is found guilty of the charge levelled against him. [Laloo Khan Haideralikhan v MM Kamble, 1996 Cr LJ 801 : 1996 (2) Mah LJ 662 (Bom)].

Mere institution of two complaints one under sections 323, 504, 506 of Indian Penal Code, 1860 and another under section 506(2) of Indian Penal Code, 1860. Section 25 of the Police Act would not attract section 110 of Code of Criminal Procedure, 1973 [Mohan Parmanand Khatri v MG Ingle, 2004 Cr LJ 1017 (1018) (Bom) : 2004 (1) Mah LJ 524 : 2004 (2) Rec CrR 571]. [s 110.12] Clause (a).— (See sections 378, 390 and 445 of Indian Penal Code, 1860). Definite ground must exist for finding that the person was a habitual thief. [Golam, 8 Cal WN 543] or habitual robber. [Budhan, 47 A 733]. There is no mention of habitual dacoit in the clause as such person should be prosecuted on a specific charge. (Ram Pd., AIR 1925 All 250 : 86 Ind. Cas. 282]. [s 110.13] Clause (b).— (See section 410 of Indian Penal Code, 1860). [s 110.14] Clause (c).— See sections 212, 216 and 414 of Indian Penal Code, 1860. It applies only to professional receiver of stolen property. [Nga Pu, 11 Cr LJ 490, 492]. Not help in one or two cases is meant but regular habit of protecting thieves. [Firangi, AIR 1933 Pat 189 : 143 Ind. Cas. 687]. Harbouring dacoits is provided for in section 216A of Indian Penal Code, 1860. [Mannilal, 51 A 459]. [s 110.15] Clause (d).— (See sections 359, 362, 383, 415 and 425 of Indian Penal Code, 1860). It is not applicable to extortion committed not in individual capacity but as agent of others. Thus, where certain servants of a landlord committed acts of extortion in the performance of their duties, they could not be said to have habitually committed extortion as individuals because on their being discharged by the landlord it would not longer be in their interests to commit them. [Hari Telang, 27 C 781]. Mischief must be committed habitually [Hamidoodden, 24 WR 37]. [s 110.16] Clause (e) “Involving a breach of the peace”, e.g. , rioting, Chapter 8 Penal Code.— As to offences involving breach of peace, see notes to section 106, ante, Kali Prasanna, 38 C 156; Kali Sundar, 31 C 419; Gantiveera, 39 Cr LJ 816]. The words in the clause bear the same interpretation as in section 106. [Arun, 30 C 366, 368, i.e., breach of peace should be a necessary ingredient of the offence. [Mg. Po, AIR 1940 Rangoon 95 ; Veera Reddi, AIR 1938 Mad 615 : 1938 47 LW 640 : 1938 MWN 601 ]. Smuggler is not within the clause. [Abdul Karim, AIR 1935 Pesh 80 ]. Clause (e) applies to abetment, e.g., where acts of oppression involving breach of peace are done under the orders and connivance of zamindar. [Kasi Sundar sup]. [s 110.17] Clause (f).— See “changes” above. [s 110.18] Clause (g) : Desperate and dangerous.—

Page 7 of 10 [s 110] Security for good behaviour from habitual offenders.— It means one who has a reckless disregard of the safety of the person and of the property of other [Manindra, 46 C 215 following Wahed, 11 Cal WN 789; Parbati, 61 C 588]. Person whose sentence has not expired is not “at large”. [Bhubaneshwar, 6 P 1]. The following are within the clause— Threatening and beating people or bullying [Sahdeo, AIR 1942 O 336; Tekchand, AIR 1935 All 638 : (1935) AWR 795 : 157 Ind. Cas. 413; Venkataramanayya, AIR 1938 M 448; Iqbal Ahmad v Rex, AIR 1949 All 12 : (1949) 50 Cr LJ 22 : 1948 All LJ 385 : 1949 All WR 100; see however Bangilal, AIR 1931 A 437; Vijaidatta, AIR 1948 Nag 28 ; members of secret society with bombs, etc. [Satgur, AIR 1933 A 674].

The following (though of bad character) are not within the clause—Annoying and disturbing neighbour in various ways [Akhoy, 5 Cal WN 249; Bangilal, AIR 1931 All 437 : 133 Ind. Cas. 535]; litigious person [Ishwar, 19 Cr LJ 781]; undisciplined local dictator [Rathinam, AIR 1938 Mad 35 : 172 Ind. Cas. 866 : 1937 46 LW 858 : (1937) 2 Mad LJ 749; Krupasindhu Panigrahi v Rex, AIR 1951 Ori : (1951) 52 Cr LJ 848 : ILR 1949 (1) Cut 751 ] carrying lathis for self-protection. [Abdul Hamid, a 1948 C 107]; seducing women and behaving indecently [Arun, 30 C 366]; quarrelsome person, occasionally giving threats [Emperor v Vijaidatta Jha, AIR 1948 Nag 28 : (1947) 48 Cr LJ 252 : ILR (1947) Nag 237 ].

There was nothing in the report of S.O. to show as to how the applicant was so desperate and dangerous as to render his being at large without security hazardous to the community. Held, the notice issued on the basis of such a vague report and the proceedings drawn on the basis of such a vague notice amounted to abuse ofthe process of the court and so they could be challenged by filing an application under section 482 of Code of Criminal Procedure, 1973 [Har Charan v State of UP, 2008 Cr LJ 2972 (2974) (All) : 2008 (4) All LJ 122 : 2008 (61) All Cri C 540]. [s 110.19] Bond with surety.— (See notes to section 109 ante). Without any justifiable cause on ground, a citizen should not be asked to furnish the bond of good behaviour, as furnishing the bond of good behaviour causes a social stigma [Mohan Parmanand Khatri v MG Ingle, 2004 Cr LJ 1017 (1018) Bom : 2004 (1) Mah LJ 52 2004 All MR (Cri) 68]. Surety is obligatory and not optional as in the previous section. Forms (Schedule 2, no. 13). Deposit in cash cannot be accepted (section 445). Amount must be reasonable [Dedar, 2 C 384] and if not so, High Court can reduce it [Rama, 16 B 372; Raza, 23 A 80]. Imprisonment in default of security should as a rule be simple [Gandharp, 42 A 563]. A surety against theft was held not liable for a subsequent sudden act of violence by the principal [Udham, 14 Cr LJ 575]. Forfeiture (section 446). Where one bond is by the accused and another by surety, both cannot be forfeited. [Abdul Aziz, AIR 1924 Lah 262 : 81 Ind. Cas. 955]. Jurisdiction of Sessions Judge in the matter of acceptance or rejection of surety. [Parbati, 61 C 588]. [s 110.20] Fresh proceeding.— Under section 110 after the expiry of the bond, as the person must be given a sufficient opportunity of showing that he was willing to adopt an honest livelihood [Ranjit, 28 A 306 (one week); Akbara, 18 Cr LJ 710]. The greatest offender is entitled to a sufficient locus penitentiae [Nawab, 2 A 835, 838; Junab Ali, 31 C 783; see Shk Abdul, 20 Cal WN 725; Nga Po. J 17 Cr LJ 85; Husain, 2 Cr LJ 86; Shakur, AIR 1924 O 84]. Fresh proceedings must be confined to new facts alleged after release from last security [Ramdeo, 19 Cal WN 223 : 28 Ind. Cas. 648; Ranjit, 28 A 306; Madira, 12 Cr LJ 359] and witnesses must make it clear that their evidence relates to repute subsequent to release. [Niranjan, 56 A 404]. [s 110.21] Procedure and stages.— The first stage is a preliminary order to show cause setting out the substance of the information (section 111) and communication to the person proceeded against (section 112–114). The final stage is the actual enquiry and order (sections 116, 117). Distinction between the two orders [Babua, 6 A 132; Abdul Khadir, 9 A 452]. Procedure for inquiry is that of a summons case [section 116(2)]. See also section 273.

It must be made clear under which of the clauses the person is charged. Mere assertion that he is of criminal tendency or is suspected of committing crimes is insufficient [Sohan, AIR 1926 Lah 45 : 89 Ind. Cas. 513 : Ind. Cas. 513; Rajbansi, 42 A 646]. That you “possess a bad reputation in your village”, or “have been strongly suspected of committing the following burglaries”, or “have only a nominal means of livelihood except the proceeds of theft” is not a proper notice [Ramrup, AIR 1929 All 813 : 119 Ind. Cas. 571].

Page 8 of 10 [s 110] Security for good behaviour from habitual offenders.— The prosecution or the defence ought not to be hampered in any way [Jiban, AIR 1936 Cal 292 : 163 Ind. Cas. 228]. The court is bound to examine all the witnesses produced without limiting their number [Amirulla, 22 Cal WN 408 : 49 Ind. Cas. 649; Tekchand, AIR 1935 All 638 : (1935) AWR 795 : 157 Ind. Cas. 413; Raghubar, 1934 A 735], but proceedings should not of course be allowed to run to scandalous length by examining unnecessarily large number of witnesses [Angnu, 45 A 109 (402 witnesses)].

Magistrate should not order security without enquiry and evidence merely because the accused consents to give it [Ram Ch, 35 C 674; Allahditta, AIR 1925 SC 321 ; Prathipathi, 30 M 330; Ujagar, AIR 1029 P 504; Ramcharan, AIR 1926 All 614 — CONTRA : 92 Ind. Cas. 882 : Ghariba, 46 A 109; see Kishan, 50 A 599 : AIR 1928 All 270 : 112 Ind. Cas. 774 : (1928) ILR 50 All 599; Bhup Narain v State, AIR 1954 All 29 : 1954 Cr LJ 11 : 1953 All LJ 478 : 1953 All WR 471]. Consent cannot always be construed as a plea of guilt [Kurwa, AIR 1928 All 357 : 113 Ind. Cas. 282; Dukhi, AIR 1937 Oudh 289 : 166 Ind. Cas. 850]. Where some of the accused never admitted likelihood of breach of the peace, but offered to give security provided the opposite party was also asked to give security, further evidence should be taken [Bhup, sup]. Plea of guilty under misapprehension should be cancelled [Jiban, AIR 1936 Cal 292 : 163 Ind. Cas. 228]. See notes to section 107, ante.

The general rule is that the case of every one should be tried separately, but where the persons charged have been associated together, they may be tried jointly under section 116(5). See notes to that section post.

The Sub-divisional Magistrate cannot hold a joint inquiry against members of hostile groups and pass a joint order under section 111 against them. The terms of section 116(5) do not take in hostile groups. [KD Murugesan v State by Inspector of Police, 1984 Cr LJ 760 : 1983 (2) Crimes 712 : 1983 Mad LW (Cri) 221 : 1984 Mad LJ (Cri) 192 (Mad)]. [s 110.22] Evidence.— Evidence may be of (a) habit, (b) general repute [section 116(4) and (c) previous conviction. Mere allegation or suspicion that a person is suspected to be guilty of this or that offence is not evidence nor is it evidence of general reputation [Amjad Ali, AIR 1924 Pat 498 : 25 Cr LJ 35; Rahman, 14 Cr LJ 407; Karey v State, AIR 1959 All 347 : 1959 Cr LJ 673 : 1959 All WR 33 : 1959 All Cr R 74; Kurwa, AIR 1928 All 357 : 113 Ind. Cas. 282; Alep, 11 Cal WN 413; Kismat, 11 Cal WN 129; Jagat, 23 Cr LJ 507; Sohna, 27 Cr LJ 1067; Lilu, 32 Cr LJ 62; Ramlal, 51 A 663; Dindayal, AIR 1927 A 146]. Evidence must be of such a nature as would lead to a reasonable and definite ground for conclusion [Golam, 8 Cal WN 543]. As to proof of habit see “Habit” above.

Evidence of general reputation of being a habitual offender is admissible. General reputation is the reputation which a person bears in the place where he lives amongst all the townsmen whether they happen to know him or not. If he is looked upon by them as a man of good repute it is evidence of his good character. If, on the other hand, he is looked upon by them as a dangerous man of bad habits, it is evidence of his bad repute [see Rai Isri, 23 C 621; Jogendra, 25 Cal WN 334; Bechai, 15 Cr LJ 705; Kewal, 26 Cr LJ 1283; Raku, 43 A 186; Angun, 45 A 109; Kundan, 9 L 133; Ranga Reddi, 43 M 450; Ghulam, 30 Cr LJ 220; Jai Singh, 31 Cr LJ 1020; Ketaddi, 27 C 993; Rahman, 29 Cr LJ 738; Malia Rai, AIR 1938 Mad 591 : (1938) ILRMadras 720 : 1938 47 LW 428 : 1938 MWN 313 ; Karey v State, AIR 1959 All 347 : 1959 Cr LJ 673 : 1959 All WR 33 : 1959 All Cr R 74]. In short, it is the general estimate of a man’s action or qualities entertained by the community as a whole in which he resides (see Sarkar’s Evidence, 13th Edn section 55 p 587). The witness must live in the neighbourhood and though he must have personal knowledge of the repute (i.e., be aware of the reputation), it is not necessary that he should personally know the accused or have knowledge of the facts giving rise to the repute [Rai Isri, sup; Jagarnath, 1903, AWN 181]. Cases which say that the witness must know the accused or have knowledge of the facts giving rise to the repute [Bishundeo, 12 PLT 880; Ramlagan, 25 Cr LJ 985 do not appear to be in accord with the principle of reputation evidence]. It has however been held that it is notalways necessary that the evidence should come from the people who live in immediate neighbourhood of the accused [Wahid Ali, AB 11 Cal WN 789; Chintamon, 35 Cal 243]. [s 110.23] Reputation.— Reputation is distinguished from mere rumour or hearsay. Evidence of rumour that a man committed acts of extortion and is a man of bad character is not evidence of repute and is inadmissible [Rai Isri, 23 C 621; Firangi, AIR 1933 Pat 189 : 143 Ind. Cas. 687; Baso Rai v King Emperor, AIR 1948 Pat 84 : (1947) 48 Cr LJ

Page 9 of 10 [s 110] Security for good behaviour from habitual offenders.— 409 : 229 IC 474; Ramlagan, 25 Cr LJ 985; Kripasindhu, 19 Cr LJ 905]. Though evidence of general repute must necessarily consist largely of hearsay [Kumera, 51 A 275; Raojiful, 6 Bom LR 341], there must be a reasonable foundation for it [Satgur, AIR 1933 A 674]. But mere suspicion or mere allegation of witness is not evidence of general repute [Sohna, 27 Cr LJ 1067; Bechai, 15 Cr LJ 705; Rajnarain, AIR 1927 All 394 : 101 Ind. Cas. 886; Kundan, AIR 1928 L 49; Kher, 9 L 586; Amjad, AIR 1924 Pat 498 : 75 Ind. Cas. 723; Ghulam, 30 Cr LJ 220; Lilu, AIR 1930 Lah 345 : 127 Ind. Cas. 861; Dalle, AIR 1929 SC 599 ; Ramlal, 51 A 663; Baburam, AIR 1928 All 1 : 106 Ind. Cas. 684]. Such statements as “I knew the accused, he bears a bad reputation and is given to committing burglary and dacoity has bad associates” can be of no assistance. It is against all principles to record such vague statements without calling upon the witness to give specific instances which the accused will be in a position to rebut [Seshagiri Ayyar, J. in Ranga Reddi, 43 M 450, 455 : AIR 1925 M 534].

Reputation evidence has to be accepted with great caution as it is easy for one to say that a person is of ill repute [Shanmugam, 39 Cr LJ 588; Badu, 54 C 279; Kurwa, AIR 1928 A 357]. Such a mere statement without being able to give source of his knowledge is entitled to no weight [Raghubar, AIR 1934 All 735 : (1934) 3 AWR 655 : 152 Ind. Cas. 120]. Instances of specific crimes are not necessarily excluded when given as reasons for the bad opinion held [Jai Singh, AIR 1930 Oudh 357 : (1931) ILR 6 LUCK 36; Lachman, AIR 1927 All 473 : 102 Ind. Cas. 211; Budhan, 47 A 733].

Where one is charged solely under section 110(g), evidence of general repute is inadmissible [Muthu Pillai, 34 M 225; Wahed Ali, 11 Cal WN 789; Parasulla, 13 Cal WN 244; Pyu Zin, 22 Cr LJ 492].

Previous conviction though relevant is not substantive evidence [Nepal, 13 Cal WN 318]. Mere fact of a record of previous convictions is not enough to bring a person within the category mentioned in the section [Raja Valad, 10 B 174; Ramlal, 51 A 663; Abdul Latif, AIR 1943 A 386] and due weight must be given to the lapse of time since the last conviction [Ramlal, 30 Cr LJ 562; Ramlal, 51 A 663; Raghubar, 36 Cr LJ 33; Jagat, Cr LJ 537].

As to evidence of bad character when bad character is itself a fact in issue and of previous conviction as evidence of bad character, see section 54 of Evidence Act and Sarkar’s Evidence, 13th Edn, p 578 et seq. When evidence of good character may be given [Kundan, AIR 1928 Lah 49 ; Shk Amjad AIR 1924 Pat 498 ; Rahman, 29 Cr LJ 738]. [s 110.24] Police evidence.— Ordinarily evidence of policemen should be tested the same way as evidence of other persons [Santa, AIR 1944 Lah 339 ; Satgur, AIR 1933 All 674 ; Dipu, AIR 1935 All 850 ; Baburam, 29 Cr LJ 92]; but if the case depends mostly on police evidence and spies, it must be scrutinised closely and received with great caution [Mukherji, AIR 1945 Nag 163 l Nirmal, AIR 1927 Cal 265 ]. Evidence of police witnesses as to general repute of a person [Maila Rai, AIR 1938 Mad 591 ]; or of an investigating officer that he suspected a certain person to have committed a burglary or theft [Karey v State, AIR 1959 All 347 : 1959 Cr LJ 673 : 1959 All WR 33 : 1959 All Cr R 74] is inadmissible, so also police evidence that a person is by habit a thief when it is mere opinion and hearsay [Kondia, AIR 1930 Nag 148 ]. Police evidence should influence judgment as little as possible. When it consists only of rumors and hearsay noted in diaries, it is wholly inadmissible [Ranga Reddi, 43 M 450]. Entries in Thana crime notebook are not evidence, Poachai, 22 Cr LJ 486 (Cal)]. Entries in historysheet [Jogendra, 21 Cr LJ 700; Jabinuddin, 20 Cr LJ 689], or police diaries [Jhanda, 25 Cr LJ 45] are not evidence. [s 110.25] Order under special Acts.— Section 110 may be applied to offence under section 3 of Burma Opium Law Amendment Act [Nga Kyaung, AIR 1924 Rangoon 244 : 80 Ind. Cas. 259]. Order under Special Act cannot be passed when security has already been ordered under section 110 [Kabir, 1 L 100, Bhana, 1919 PLR 34 ; Pan Zyaw, 24 Cr LJ 735]. [s 110.26] Appeal and revision.— Appeal lies to the Sessions Judge, (See section 373). Section 397 enables a Sessions Judge to call for the record for reference (now revision) [Ashiq, AIR 1923 All 596 : 73 Ind. Cas. 337]. Revision now lies both to the High Court and Sessions Judges under section 397. See also notes to section 107, ante.

Page 10 of 10 [s 110] Security for good behaviour from habitual offenders.— When should revision application be admitted [Gayani, 17 Cr LJ 461]. In cases under section 110, the High Court is not a Court of Appeal. It will not weigh the evidence, but will only see whether the case has been approached in a fair way [Lachman, AIR 1927 All 473 ; Kewal, AIR 1925 Oudh 473 : Ind. Cas. 147; Rajnarain, 28 Cr LJ 502; Likha, AIR 1934 Oudh 49 ]. But at the same time, the court is to be satisfied that the evidence was of a character which made it imperative to pass an order of security [Lachman, sup; Alimuddin, AIR 1924 All 569 ]. Where evidence has been misunderstood or ignored or not properly considered or rules of evidence have not been followed, and the case has been reviewed in a very perfunctory way, it requires careful scrutiny [Bisheshur, 19 ALJ 668 : 22 Cr LJ 660; Nizamaddi, 23 Cal WN 488; Raghubar, 36 CR LJ 33]. Considerations which will induce the High Court to quash the order [Angnu, AIR 1923 All 35 ]. The High Court will interfere when the proceedings are found to be not bona fide [Rajendra, 17 Cal WN 238; Nafar, 28 Cal WN 23], or there has been a miscarriage of justice [Parbati, 61 C 588].

4

Substituted by the Code of Criminal Procedure (Amendment) Act, 1980 (63 of 1980), section 2 for the words “a Judicial Magistrate of the first class” (w.e.f. 23 September 1980).

5

Substituted by the Repealing and Amending Act, 1974 (56 of 1974), section 3 and Sch II, for clause (b).

6

Now, see the Foreign Exchange Management Act, 1999 (42 of 1999).

7

Inserted by the Repealing and Amending Act, 1974 (56 of 1974), section 3 and Sch II.

8

Now, see the Employees’ Provident Fund and Miscellaneous Provision Act, 1952 (19 of 1952).

9

Now, see the Food Safety and Standards Act, 2006 (34 of 2006).

10

Now, see the Protection of Civil Rights Act, 1955 (22 of 1955).

11

The word “or” omitted by the Code of Criminal Procedure (Amendment) Act, 2005 (25 of 2005), section 14 (w.e.f. 23 June 2006 vide Notification No. SO 923(E), dated 21 June 2006).

12

Inserted by the Code of Criminal Procedure (Amendment) Act, 2005 (25 of 2005), section 14 (w.e.f. 23 June 2006 vide Notification No. SO 923(E), dated 21 June 2006).

End of Document

[s 111] Order to be made.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER VIII SECURITY FOR KEEPING THE PEACE AND FOR GOOD BEHAVIOUR

The Code of Criminal Procedure, 1973 CHAPTER VIII SECURITY FOR KEEPING THE PEACE AND FOR GOOD BEHAVIOUR [s 111] Order to be made.— When a Magistrate acting under section 107, section 108, section 109 or section 110, deems it necessary to require any person to show cause under such section, he shall make an order in writing, setting forth the substance of the information received, the amount of the bond to be executed, the term for which it is to be in force, and the number, character and class of sureties (if any) required. [s 111.1] Changes.— Section 111 Corresponds to the old section 112 verbatim. [s 111.2] Scope and application of section 111.— Proceeding (under sections 107–110) is instituted by a preliminary order under section 111 which shall comply with these conditions—(1) written order; (2) substance of information against the person (not its source); (3) amount of bond; (4) period for the bond; (5) number, character and class of sureties. This is the only notice contemplated by the section and no other notice preliminary or otherwise can be legally issued [Madhu Limay Ved Murti, AIR 1971 SC 2481 : (1970) 3 SCC 739 : 1971 Cr LJ 1715 ; Tulsibala Rakhit v NN Khosal, 56 Cal WN 193 : AIR 1953 Cal 109 : 1953 Cr LJ 344 ; Balraj Madhok v UOI, AIR 1967 Del 31 : 1967 Cr LJ 865 ]. Notice is not different from order under section 111 [Zahir Ahmad v Ganga Prasad, AIR 1963 All 4 : 1963 (1) Cr LJ 20 : 1962 All LJ 654 : ILR (1962) 2 All 496 ]. Order under section 111 is a condition precedent to take further steps under chapter 8 [Balraj, sup; Banarsi Lal v Neelam, AIR 1969 Del 304 : 1969 Cr LJ 1370 ; Rameshwar, 36 A 262; Zahir, sup; Jatoi, 27 Cr LJ 935; see Sukru, 30 C 443; Tulsibala, sup]. In a notice, the mention of only section 107 and the non-mention of section 111 is of no consequence [Kanhaiyalal v Devi Singh, AIR 1961 MP 302 : 1961 (2) Cr LJ 642 : 1961 Jab LJ 443 ]. The provisions of section 111 are mandatory and non-compliance thereof vitiates the entire proceedings [Mohanlal, 1977 A Cr R 4]. The order must state the acts complained of or the definite information received by the Magistrate [Raghavendra, (1976) 2 Kant LJ 458 ]. Omission to record the order is an illegality [Krishnaswami, 30 M 282]. This order is also necessary when one has been brought under arrest as a suspected habitual offender, Rajbans, ILR 42 All 646].

Recording order on the back of police report is mere irregularity [Ramdee, (1926) ILR 49 All 228, 27 Cr LJ 1132]. [Basu Chaudhury v State of Bihar, AIR 1971 Pat 106 : 1971 Cr LJ 619 para 8 as to effect of irregularity in general].

Unless the Magistrate complies with the mandatory provision of law under section 111, he will have no jurisdiction to direct the person proceeded against to appear before him or to secure their presence for the purpose of enquiry. [Mathangi Satyanarayana v State, 1996 Cr LJ 1809 : 1996 (2) Crimes 124 : 1996 (2) APLJ 213 at p 1811 (AP)].

Page 2 of 5 [s 111] Order to be made.— Even preliminary order under section 111 of the Code should be passed after application of judicial mind as making a preliminary order under section 111 of the Code is not an empty formality but judicial mind must be applied to the substance of information received from the police or other sources. Such order passed under section 111 of the Code is required to be read over and explained to the person to whom notice is issued to attend the court and when such noticee appears or is brought by the Magistrate as the case may be, inquiry is required to be held in the same manner as may be practicable in accordance with the rules, procedure prescribed regarding evidence in summons cases [Shilpa Aade v State of Maharashtra, 2012 BomCR (Cri) 709 : 2012 (2) MhLJ 768 ].

The preliminary order contemplated under section 111 of Code of Criminal Procedure, 1973 is a judicial order and has to be prepared and drawn up cautiously and carefully in compliance with the provisions therein and the order must contain reasons of the Magistrate satisfaction. The substance of the information is the matter upon which he has to show cause. The extent of information which must be set forth depends in each case upon the circumstances of that case. The basic object of preliminary order being to give the person proceeded against an opportunity to meet the allegation made against him as well as nature of the order proposed [Rakesh Singh v State of UP, 2010 Cr LJ 2267 (All)]. [s 111.3] Scheme of sections 111 to 116.— Section 111 deals with the contents of the order. Section 112 deals with the communication thereof to the person if person is present in the court. Sections 113 to 115 deal with bringing the person in court, if he is not present. Subsequent inquiry takes place under section 116 [See Narsayya Lachmayya v The State, AIR 1953 Nag 292 : 1953 Cr LJ 1569 : 1953 Nag LJ 351 ; Zahir Ahmad v Ganga Prasad, AIR 1963 All 4 : 1963 (1) Cr LJ 20 : 1962 All WR 543 : 1962 All Cr R 295; Madhu Limaye, AIR 1971 SC 2486 : 1971 Cr LJ 1720 : (1970) 3 SCC 746 ]. [s 111.4] Discretion.— When a Magistrate exercises his discretion and decides to require any person to show cause, then he is not bound to act when he receives police report [Rupdeo Singh v Natha Singh, AIR 1970 Pat 134 : 1970 Cr LJ 724 ]. [s 111.5] Setting forth the substance of the information.— The three words which are important in this phrase are (a) “setting forth” (b) “substance” (c) “information”.

(a) Setting forth, implies that the information to be recorded should be adequate in quantity and reasonably precise. [Abdul Latif Ali Choudhary v Amanat, (1974) Cr LJ 1092 (Gau); B Katar v Sitaram, (1978) Cr LJ 368 (Pat)]. (b) the word “substances” implies that the gist or the substance be communicated it being the object of this part of the section is to enable the person notified to defend himself against the allegations [Abdul Latif v Amanat Ali Choudhary, (1974) Cr LJ 1092 , (Gau); Muthuswami, AIR 1940 All 23 C FB]. (c) the word information implies that the facts on what the Magistrate rules should be narrated (though not the source) [Balkishun Sao v Munno Khan, AIR 1970 Pat 107 : 1970 Cr LJ 586 : 1969 Pat LJR 223 (2) : 1969 BLJR 479 ; Yunus v State, 1969 Cr LJ 73 (All), Christalin Costa v State of Goa, (1992) Cr LJ 3608 : 1993 (1) Bom CR 688 : 1993 (2) Mah LJ 1409 Bom].

Passing of a separate order under section 111 of Code of Criminal Procedure, 1973 is a condition precedent for initiation of proceedings under section 107/111 of Code of Criminal Procedure, 1973, where no separate order was passed by the Magistrate as contemplated under section 111 of Code of Criminal Procedure, 1973, the showcause notice issued to the opposite party was set aside [Vasantkumar Iwrambhai Majithia v State of Maharashtra, 2006 Cr LJ 1135 (1140, 1141) : 2005 (4) Bom LR 1149 (Bom) : 2006 (1) Bom CR (Cri) 9 : 2005 All MR (Cri) 2951]. [s 111.6] Writ petition.—

Page 3 of 5 [s 111] Order to be made.— Writ jurisdiction can be exercised where there is total absence of jurisdiction. [Balkishun Sao v Munno Khan, AIR 1970 Pat 107 : 1970 Cr LJ 586 : 1969 Pat LJR 223 (2) : 1969 BLJR 479 ]. Or here no order in writing is passed [Zahir Ahmad v Ganga Prasad, AIR 1963 All 4 : 1963 (1) Cr LJ 20 : 1962 All WR 543 : 1962 All Cr R 295 DB; Prabhakar Nath Dwivedi v District Magistrate, AIR 1960 All 467 : 1960 Cr LJ 1049 : 1960 All LJ 206 : 1960 All WR 145 : 1960 All Cr R 122 DB]. [s 111.7] Notice.— A notice under the section must be accompanied by the order [Subba Naicken, 17 Mad LJ 438]. Magistrate acting under section 111 is a “Court” [Anantapad Monabiah, AIR 1930 M 975 : 54 M 422]. Apart from section 202, he has power to call for report of police officer before issuing notice [Laxmi Narain, 54 A 1036; Tulsibala, sup].

In the instant case, the impugned order on the printed proforma without recording reasons show nonapplication of judicial mind. Use of printed/cyclo-styled proforma with some insertions here or there is passing such order is not proper rather on the face it is nothing short of a farce. Notice under Section 111 of Code of Criminal Procedure, 1973 containing vague apprehensions and allegations on printed/cyclo-styled proforma indicate pre-conceived notions. The impugned notice under challenge is void and proceedings against the petitioner are nullity and without jurisdiction as substance of information received as required is incomplete and ambiguous. Notice without substance of information vitiate the proceedings. The impugned notice issued under section 111 of Code of Criminal Procedure, 1973 and proceedings drawn on the basis of such vague notice are apparently abuse of process of court. Failure to comply with the mandatory requirements of section 111 of Code of Criminal Procedure, 1973 vitiates the preliminary order and consequently the proceedings [Rakesh Singh v State of UP, 2010 Cr LJ 2267 (2271) (All)].

The issue of the notice is a judicial act, the object being to enable the person to prepare for defence and to summon witnesses [Kutti Goundan, AIR 1925 Mad 189 : 86 Ind. Cas. 49 : (1924) 47 Mad LJ 689 : 1925 MWN 57]. After the order is served, an enquiry is held (section 116) in which he may “show cause” by producing such evidence as he may have and the Magistrate then passes final order (sections 117 and 118). If the person does not appear after notice, the Magistrate cannot pass an order for security straight way, but must still proceed under section 116 and take evidence.

When there are several persons, there should be a separate notice for each [Ramlal, 30 Cr LJ 562]. As to joint trial, [see section 116(5) and notes]. Accused is not entitled to copy of police information on which he order is based [Anantapadmanabiah, 54 M 422]. [s 111.8] Amendment.— An order served under section 111 can be amended by addition of further charges due to receipt of fresh information and a fresh order may be served [Rasulbux, AIR 1942 SC 122 ; Hyder, 1933 MWN 551 ; see however Nim, AIR 1933 SC 8 that the period stated cannot be altered], or by raising the amount of security [Md. Ishar, AIR 1927 Lah 689 ], or a supplementary order may be served [Srinivasalu, AIR 1942 M 242]. A second Magistrate with knowledge of fresh incidents may issue a second order by way of amendment or as supplementary order [Swamikannu, (1952), 2 Mad LJ 669]. No order for security can be legally passed unless the notice under section 111 sets forth all the requirements [Manickam, 1941 MWN 512 ]. Notice which does not fulfil the requirements of section 111 is illegal [Tulsi Bala Rakhit v NN Khosal, AIR 1953 Cal 109 : 56 Cal WN 193 : 1953 Cr LJ 344 ]. [s 111.9] Dropping the proceedings.— Proceedings under section 107 can be dropped at any stage even after passing the order under section 111; such power can legitimately be inferred [Ashgar Khan v State, AIR 1964 All 391 : 1964 Cr LJ 260 : 1963 All WR 365 : 1963 All LJ 746]—Contra : Magistrate cannot drop proceedings without making inquiry under section 116 (1) [Chandra Kishore Deb Barma v Jogendra Chandra Deb, AIR 1965 Tri 20 : 1965 (1) Cr LJ 602 ]. [s 111.10] Substance of the information.— On which information action has been taken, must be given in the order served. A fair idea of what is required may be had from the dictionary meaning of “substances” which is essence, or the most important part of anything, pith, gist, purport [Concise Oxford Dictionary]. What exactly is denoted by “substance” has been

Page 4 of 5 [s 111] Order to be made.— discussed in many cases but without complete accord. It is explainable as the extent and nature of the information would depend on the particular facts of each case. This much is clear that a notice under section 111 being in the nature of a charge, the person is entitled to have some definite information as to the case he is called upon to answer; and so the substance or the purport of the information against him should be clearly disclosed [Rasulbux, AIR 1942 SC 122 ; Ranga Reddi, 38 Mad LJ 97; Nikka Ram v, AIR 1954 Punj 6 : 1954 Cr LJ 49 : 55 Punj LR 441; Tanwar, 26 Cr LJ 1398; Kutti Goundan, AIR 1925 M 289; Sultan, AIR 1925 SC 236 ; Kalia Goundan, AIR 1930 Mad 859 : 127 Ind. Cas. 652 : 1930 32 LW 320 : (1930) 59 Mad LJ 887 : 1930 MWN 698; Birdhaj Roy v State, AIR 1953 Cal 491 : 91 Cal LJ 119 : 1953 Cr LJ 1165 : 57 Cal WN 251; Nihal, 49 A 5; Nathu, 6 A 214; Ishwar, 11 C 13; Balkishun Sao v Munno Khan, AIR 1970 Pat 107 : 1970 Cr LJ 586 : 1969 Pat LJR 223 (2) : 1969 BLJR 479 ]. The substance should contain such information as may enable the person to answer the charge or to defend himself properly.

The order setting forth the substance of the information takes the place of the charge [Karuthaswami, AIR 1930 Mad 331 FB : 124 Ind. Cas. 1 : (1930) ILR 53 Mad 173]. Action under the section being judicial, the Magistrate should not act arbitrarily [Muthuswami, AIR 1940 M 23 FB; Emperor v Vijaidatta Jha, AIR 1948 Nag 28 : (1947) 48 Cr LJ 252 : 1947 Nag LJ 141 ]. “Substance of the information” means such or so much of it as would enable the party to know under what clauses of section 110 he is charged or to what particular class of offenders he is said to belong. Repetition of the words of the section should be avoided [Bhutnath, 33 Cal WN 852; see Jagannath, AIR 1940 Nag 134 : [1942] ILR Nag 62; Chandan, 52 A 448; Vijaidatta, sup; Sohan, AIR 1926 Lah 45 : 89 Ind. Cas. 513 : Ind. Cas. 513]. Merely giving a bad name to a person and reproducing the clause of a section is giving no information [Nikka Ram v State, AIR 1954 Punj 6 : 1954 Cr LJ 49 : 55 Punj LR 441].

Notice under section 111 of Code of Criminal Procedure, 1973 containing vague apprehensions and allegations on printed/cyclo-styled proforma indicate pre-conceived notions and show non-application of judicial mind. Failure to comply with the mandatory requirements of setting forth the substance of information under section 111 of Code of Criminal Procedure, 1973 can vitiate the preliminary order and consequently the proceedings.[Rakesh Singh v State of UP, 2010 Cr LJ 2267 (All)]. [s 111.11] Information to be clear.— Information should be clear and definite and disclose tangible facts and details so that he may know what he has to meet [Santan v The State, AIR 1952 Ori 33 : 19 (1953) CLT 370 ]. There should be sufficient indication of the time and place of the facts charged and sufficient details to enable the party to know what facts he is to meet [Ranga Reddi, 43 M 450; Santhana, 1937 MWN 885 ]. Even a person arrested under section 41(2) should be told the substance of the information against him [Nihal, 49 A 5].

The source of the information [Mithu, 27 A 172; Alimuddin, 29 C 392; Anantapadmanabhiah, 54 W 422], or that “You are likely to commit a breach of the peace”. [Nathu, 6 A 214; Iswar, 11 C 13; Jaiprakash, 6 A 26; Nandkishore, AIR 1922 Pat 209 : 77 Ind. Cas. 417; Konda Reddi, 41 M 346], or to make general accusations like “highhandedness”, “violence”, “harassment”, “criminal tendencies”, “tyrannical habits”, “suspicion of having committed some offences”, etc. [Sanatan, AIR 1952 Ori 33 ; Emperor v Vijaidatta Jha, AIR 1948 Nag 28 : (1947) 48 Cr LJ 252 : 1947 Nag LJ 141 ], or to fill up a vague typed form with set words (Sultan, AIR 1925 SC 236 ] or to merely reproduce the words of the section [Amanat, 30 Cr LJ 492; Rasulbux, AIR 1942 SC 122 ; Nikka Ram v State, AIR 1954 Punj 6 : 1954 Cr LJ 49 : 55 Punj LR 441].

Notice to show cause which does not specify overt acts nor particulars of the house regarding which apprehension of breach of peace is likely to arise would be quashed [Lakshman Misra v State of Bihar, 1984 Cr LJ NOC 152 (Pat)].

Before acting under section 107, the Magistrate is bound, by reason of section 111, to set forth the substance of the information received and based on which he has reasons to believe that there is apprehension of breach of peace. Breach of the above vitiates the notice issued. A notice which does not give the substance of the information received by the Magistrate is not sufficient notice to the delinquent to meet the allegation. The order too should contain substance of the information received and show application of judicial mind to the facts of case. [Bairagi Charan Jena v State of Orissa, 1988 Cr LJ 286 : (1987) 63 Cut LT 10 : 1987 (1) Ori LR 177 (Ori)].

Page 5 of 5 [s 111] Order to be made.— [s 111.12] Omission to give substance.— Omission to give substance of information or a defect in notice though a serious irregularity does not of itself make the proceedings void unless there has been prejudice to the accused and failure of justice [Alisher Dost, AIR 1939 SC 261 ; Tanwar, 26 Cr LJ 1398; Md. Jafar, 3 A 545; Abasu, 8 C 724; Dy. Legal Rem, 17 Cal WN 331; Rammurti, 47 Cr LJ 642; Bangali, AIR 1941 Pat 241 ; Sanatan, AIR 1952 Ori 33 ; Mohammad Yusuf Abbasi v District Magistrate, AIR 1959 All 346 : 1959 Cr LJ 672 : 1959 All LJ 42 : 1959 All WR 122—Contra Nihal, 41 A 6; Ujagar, 10 L 155; Mag Tun, 27 Cr LJ 318]. When the accused has cross-examined at length the prosecution witnesses [Dohra, 20 Cr LJ 436], or when he had clear notice of the case against him [Jai Singh, 23 Cr LJ 318], there cannot be any prejudice. Writ petition is not maintainable for failure to give substance of information [Md. Yusuf, sup]. [s 111.13] Amount of bond, “term” and “sureties”.— In fixing the amount, the direction in section 117 must be followed. It should not be so high that the person being unable to find surety would be left with the alternative imprisonment [Dedar, 2 C 384; Rama, 16 B 372; Raza, 23 A 80; Satgur, AIR 1933 A 674]. As to the “character and class” of sureties, the demand should not also be unreasonable, or impossible restrictions should not be imposed [See Yesu, 1 Bom LR 520; Rahmatulla, 22 Cr LJ 395; Waszya, 28 PR 1901; Hasimuddin 13 Cr LJ 831; Raghunandan, 23 Cr LJ 400, See post section 121 “Test of competence”]. [s 111.14] Appeal.— In appeal, order under one clause can be changed to order under another clause if the facts justify it. Ahesanab (1938) 39 Cr LJ 747 , 748 (Nag). Subsequent events can also be taken note of [In re: Swami Kannu Padayachi, In re], AIR 1955 NUC 210 (Mad) para 4. [s 111.15] Revision.— High Court (and now Sessions Judge also) in revision can quash proceedings when notice does not comply with section 111 [Muthuswami, 41 Cr LJ 238; Bengali AIR 1941 Pat 241 Jasoda, AIR 1939 SC 167 ].

In a case where it was alleged that the petitioner obstructed the respondent from taking possession of the shop and also threatened and abused him, showcause notice issued to the petitioner for execution of bond of good behaviour was not interfered with in revision [Noor Hasan Abdul Shaikh v State of Maharashtra, 2003 Cr LJ 4007 (4008) (Bom) : (2003) 3 Crimes 146 : 2003 (3) Bom LR 967 ]. End of Document

[s 112] Procedure in respect of person present in court.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER VIII SECURITY FOR KEEPING THE PEACE AND FOR GOOD BEHAVIOUR

The Code of Criminal Procedure, 1973 CHAPTER VIII SECURITY FOR KEEPING THE PEACE AND FOR GOOD BEHAVIOUR [s 112] Procedure in respect of person present in court.— If the person in respect of whom such order is made is present in court, it shall be read over to him, or, if he so desires, the substance thereof shall be explained to him. [s 112.1] Changes.— Section 112 corresponds to the old section 113 verbatim. [s 112.2] Scope and application of section 112.— Presence in court is enough; it makes no difference whether the person was under arrest or not, or was brought under arrest illegally or legally [Ghulam, 12 Cr LJ 533]. Failure to read out the order or to explain it is an illegality which vitiates the proceedings [Yusuf Jumo, AIR 1943 SC 175 ; Malla Mohamadoo v State, AIR 1968 J&K 29 : 1966 Cr LJ 145 : 1966 Kash LJ 1 ]. When the order was not read over and explained, no inference of compliance can be made from the mere presence in court when the order was passed [Malla, sup]. Reading out not at the commencement of the trial, but after the prosecution evidence, is a mere irregularity [Ram Murti v King Emperor, AIR 1946 Oudh 230 : (1946) 47 Cr LJ 42 : ILR 21 Luck 251]. If order is not served on an absent accused but is read over to him when he appears, it is substantial compliance [Bajiroa, AIR 1924 Ngp 166 ]. Record should show that order was read out [Dindayal, 28 Cr LJ 8].

End of Document

[s 113] Summons or warrant in case of person not so present.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER VIII SECURITY FOR KEEPING THE PEACE AND FOR GOOD BEHAVIOUR

The Code of Criminal Procedure, 1973 CHAPTER VIII SECURITY FOR KEEPING THE PEACE AND FOR GOOD BEHAVIOUR [s 113] Summons or warrant in case of person not so present.— If such person is not present in court, the Magistrate shall issue a summons requiring him to appear, or when such person is in custody, a warrant directing the officer in whose custody he is to bring him before the court : Provided that whenever it appears to such Magistrate, upon the report of a police officer or upon other information (the substance of which report or information shall be recorded by the Magistrate), that there is reason to fear the commission of a breach of the peace, and that such breach of the peace cannot be prevented otherwise than by the immediate arrest of such person, the Magistrate may at any time issue a warrant for his arrest. [s 113.1] Changes.— Section 113 corresponds to the old section 114 verbatim. [s 113.2] Scope and application of section 113.— If before appearance, the Magistrate is of opinion that urgent action is necessary to prevent a breach of the peace, the provision empowers him to order the immediate arrest of the person. The section is applicable only to the stage prior to the serving of order under section 111 and not after appearance to show cause. If speedy remedy is desired after appearance, action may be taken under section 116(3) [Hampiah, AIR 1944 M 575]. Person summoned should be given reasonable time to meet the charge [Nathu, 6 A 214; Keramuddin, 4I C 806]. Section 113 refers to persons proceeded against, who are not present in the court. There is nothing in it to show that the order has to be read over to the person when he appears as in section 112 [Matuki Mohton v State, AIR 1963 Pat 312 : 1963 (2) Cr LJ 312 ]. Form of summons (Schedule 2, No. 14). Issue of warrant without passing an order under section 111 is without jurisdiction [Narsayya Lachmayya v The State, AIR 1953 Nag 292 : 1953 Cr LJ 1569 : 1953 Nag LJ 351 ].

Ordinarily, summons should issue. In no case, should a warrant issue except upon the clearest grounds for the belief that without it a breach of the peace is inevitable [Daulat, 14 A 45, 47]. But expression of such a belief is not enough; the Magistrate must act upon information and that information (report of police officer or anything else) must be recorded [Maniruddin, 24 Cr LJ 829; Babua, 6 A 132]. It is illegal to issue a warrant unless the terms of section 111 are complied with [Narsayya Lachmayya v State, AIR 1953 Nag 292 : 1953 Cr LJ 1569 : 1953 Nag LJ 351 ; Babu Ram v Rex, AIR 1949 All 21 : (1949) 50 Cr LJ 78 : 1948 All LJ 484 : 1948 All WR 214]. The proviso is mandatory [Zahir Ahmad v Ganga Prasad, AIR 1963 All 4 : 1963 (1) Cr LJ 20 : 1962 All LJ 654 : 1962 All Cr R 295]. No notice is necessary [Chandan, AIR 1930 All 274 : 124 Ind. Cas. 40 : (1930) ILR 52 All 448]. Whether person to be arrested must actually be within the Magistrate’s jurisdiction [see notes to

Page 2 of 2 [s 113] Summons or warrant in case of person not so present.— section 110 ante : “Within his local jurisdiction”]. Ordinarily a person arrested is entitled to bail unless the court thinks that refusal is the only way of preventing breach of the peace. [See also section 116(3)].

It has been doubted whether the proviso empowers re-arrest of a person who has been admitted to bail in a proceeding under section 107 [Raghunandan, 32 C 80; see Nathan, 30 Cr LJ 809]. It appears, however, that the words “at any time” may justify re-arrest. [s 113.3] Writ to quash.— See Zahir Ahmad v Ganga Prasad, AIR 1963 All 4 : 1963 (1) Cr LJ 20 : 1962 All LJ 654 : 1962 All Cr R 295.

Issue of warrant by a magistrate is subject to the exercise of his subjective satisfaction which should be based on some material. Where one of the persons was threatened by the shopkeepers to observe “Orissa Bandh”, it was held that satisfaction based on police report is good since breach of peace could not be prevented except through the arrest of the accused [Damodar Rout v State of Orissa, 1984 (2) Crimes 707 ].

End of Document

[s 114] Copy of order to accompany summons or warrant.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER VIII SECURITY FOR KEEPING THE PEACE AND FOR GOOD BEHAVIOUR

The Code of Criminal Procedure, 1973 CHAPTER VIII SECURITY FOR KEEPING THE PEACE AND FOR GOOD BEHAVIOUR [s 114] Copy of order to accompany summons or warrant.— Every summons or warrant issued under section 113 shall be accompanied by a copy of the order made under section 111, and such copy shall be delivered by the officer serving or executing such summons or warrant to the person served with, or arrested under, the same. [s 114.1] Changes.— Section 114 corresponds to the old section 115. [s 114.2] Scope and application of section 114.— The copy of order is intended to inform the person what case he has to meet. Where the summons contained the substance of the order, but was not accompanied by a copy, the irregularity was cured by section 465 [Suleman, 10 Cr LJ 375; Ramdeo, 27 Cr LJ 1132; Rameshwar, 21 Cr LJ 321]. If the substance of the information received was incorporated in the notice to show cause under section 107 incorporating all the conditions laid down under section 111 separate copy of the order accompanyings summon or warrant is not necessary [Bishnupada Jana v State of WB, 1977 Cr LJ 1344 : 1977 (4) Cal HN 78 : 1977 (1) Cal LJ 209 (Cal)]. Service and delivery of order (see sections 64, 65).

End of Document

[s 115] Power to dispense with personal attendance.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER VIII SECURITY FOR KEEPING THE PEACE AND FOR GOOD BEHAVIOUR

The Code of Criminal Procedure, 1973 CHAPTER VIII SECURITY FOR KEEPING THE PEACE AND FOR GOOD BEHAVIOUR [s 115] Power to dispense with personal attendance.— The Magistrate may, if he sees sufficient cause, dispense with the personal attendance of any person called upon to show cause why he should not be ordered to execute a bond for keeping the peace or for good behaviour and may permit him to appear by a pleader. [s 115.1] Changes.— Section 115 corresponds to the old section 116 with addition of the words “or for good behaviour”. [s 115.2] Scope and application of section 115.— Dispensing with personal attendance [See Dinanath, 12 C 133]. Discretion is to be properly exercised [Sushilabala v State, AIR 1955 NUC 3093 (MB)].

The courts are meant for justice and not to do harassment to the three prisoners who were leaders, and one of them was an aged one [Paradevi, 1987 CrLR (Raj) 64 ].

End of Document

[s 116] Inquiry as to truth of information.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER VIII SECURITY FOR KEEPING THE PEACE AND FOR GOOD BEHAVIOUR

The Code of Criminal Procedure, 1973 CHAPTER VIII SECURITY FOR KEEPING THE PEACE AND FOR GOOD BEHAVIOUR [s 116] Inquiry as to truth of information.— (1) When an order under section 111 has been read or explained under section 112 to a person present in court, or when any person appears or is brought before a Magistrate in compliance with, or in execution of, a summons or warrant, issued under section 113, the Magistrate shall proceed to inquire into the truth of the information upon which action has been taken, and to take such further evidence as may appear necessary. (2) Such inquiry shall be made, as nearly as may be practicable, in the manner hereinafter prescribed for conducting trial and recording evidence in summons-cases. (3) After the commencement, and before the completion, of the inquiry under sub-section (1), the Magistrate, if he considers that immediate measures are necessary for the prevention of a breach of the peace or disturbance of the public tranquillity or the commission of any offence or for the public safety, may, for reasons to be recorded in writing, direct the person in respect of whom the order under section 111 has been made to execute a bond, with or without sureties, for keeping the peace or maintaining good behaviour until the conclusion of the inquiry, and may detain him in custody until such bond is executed or, in default of execution, until the inquiry is concluded : Provided that— (a) no person against whom proceedings are not being taken under section 108, section 109, or section 110 shall be directed to execute a bond for maintaining good behaviour; (b) the conditions of such bond, whether as to the amount thereof or as to the provision of sureties or the number thereof or the pecuniary extent of their liability, shall not be more onerous than those specified in the order under section 111. (4) For the purposes of this section the fact that a person is an habitual offender or is so desperate and dangerous as to render his being at large without security hazardous to the community may be proved by evidence of general repute or otherwise. (5) Where two or more persons have been associated together in the matter under inquiry, they may be dealt with in the same or separate inquiries as the Magistrate shall think just. (6) The inquiry under this section shall be completed within a period of six months from the date of its commencement, and if such inquiry is not so completed, the proceedings under this chapter shall, on the expiry of the said period, stand terminated unless, for special reasons to be recorded in writing, the Magistrate otherwise directs : Provided that where any person has been kept in detention pending such inquiry, the proceeding

Page 2 of 8 [s 116] Inquiry as to truth of information.— against that person, unless terminated earlier, shall stand terminated on the expiry of a period of six months of such detention. (7) Where any direction is made under sub-section (6) permitting the continuance of proceedings, the Sessions Judge may, on an application made to him by the aggrieved party, vacate such direction if he is satisfied that it was not based on any special reason or was perverse. [s 116.1] Changes.— Sub-sections (1) to (5) correspond to sub-sections (1) to (5) of the old section 117 with substitution of the words “After the commencement and before” for “Pending” in sub-section (3) in order to make it clear that only after the commencement of proceedings and before the completion of the inquiry the interim bond may be ordered to be executed. [See Madhu Limaye v Ved Murti, AIR 1971 SC 2481 : 1971 Cr LJ 1715 : (1970) 3 SCC 739 (SC) in this connection].

(2) Sub-sections (6) and (7) have been newly added. [s 116.2] Scope and application of section 116.— An order under section 111 must precede any step taken under section 116. It is mandatory [Jangir Singh v State, AIR 1960 Punj 225 : 1960 Cr LJ 639 : 62 Punj LR 76]. This is the inquiry stage on appearance after service of notice. The person must come ready with evidence, but if it has not been possible to do so for any reason, he should apply at once for summons to witness [Narayan, 8 Bom LR 1385]. Sufficient time should be given to produce evidence [Keramuddin, 41 C 806; Jatoi, 27 Cr LJ 935]. Ordinarily persons proceeded against for good behaviour are entitled to have their witnesses summoned at State expense [Pahlwan, 33 Cr LJ 679; Sayyad, AIR 1929 L 23]. The Magistrate then proceeds to make a full judicial enquiry in accordance with the procedure prescribed for conducting trials and recording evidence in summons cases (chapter 20) [sub-section (2)]. Section 313 is applicable not because the person arraigned is an accused but because section 116(2) attracts section 313 [Kusuma Devi v Govind Singh, AIR 1965 Raj 40 : 1965 (1) Cr LJ 224 : 1964 Raj LW 471 ]. [s 116.3] Sub-sections (1) & (2) : [(Inquiry and Procedure].— An inquiry under chapter 8 is not a “trial” and the person charged is not an “accused” but a quasi-accused [Charan, A 1930 P 274]. Inquiry must be made and no person can be bound down on the report of police officer or the statement of a co-accused [Mulchand, 37 A 30]. Even admission or consent to give security does not dispense with an inquiry before final order [see notes to section 110, ante, “Procedure”]. Record of evidence (sections 273, 274). Taking “further evidence” means that the Magistrate may take into consideration incidents which took place after the information was received or proceeding was started [Matuki Mahton v State, AIR 1963 Pat 312 : 1963 (2) Cr LJ 312 ].

“Further evidence” in sub-section (1) indicates that some evidence may be taken before the order under section 111 [Nga Po, 2 Cr LJ 462]. The inquiry is not strictly limited by the terms of the order under section 111 [Dy. Legal Rem, 17 Cal WN 331 : 17 Ind. Cas. 416; see however Sultan, 26 Cr LJ 767].

The ordinary rules of evidence must be observed except as to admission of repute [sub-section (3)]. The onus lies clearly on the party at whose instance the proceedings were started [Dunnee, 4 BLR 46 FB; Abdul Kadir, 9 A 452]. [s 116.4] Procedure.— Summons procedure is applicable [section 116(2)]. A Magistrate can ask for an interim bond for good conduct under section 116(3) only, if he cannot complete the inquiry after commencing the inquiry under section 116(1). After an order under section 111 is drawn up, there is no room for application of section 91 (now section 88) and the provision of section 344 (now section 309) is not a substitute for section 116(3) [Madhu Limaye v Ved Murti, AIR 1971 SC 2481 : 1971 Cr LJ 1715 : (1970) 3 SCC 739 (SC)]. On a complaint under section 107 the Magistrate, after passing an order under section 111 and inquiry, can direct the person concerned to execute a bond under section 116(3). This is not a bail bond. The bond is governed by section 116 (3) and not by section 88 (section 91), [Govinder Singh Verma v Bachubhai T Pestonji, AIR 1972 SC 528 : 197 Cr LJ 316 : (1972) 4 SCC 643 (SC)]. [s 116.5] Order when not justified.—

Page 3 of 8 [s 116] Inquiry as to truth of information.— Proceedings under section 107 to 116 were initiated against petitioners, respectable persons of village. One of them was a lawyer of that place. No reasons were assigned or any opportunity given to explain the position. Petitioners were arrested and required to furnish personal and surety bonds of Rs. 50,000/- each. Nothing on the record existed to show that their action was such that could give apprehension of breach of peace in the area. Proceedings under sections 107/116 were held not justified. [Khyali Lal v State of Rajasthan, 1990 Cr LJ 2669 : 1989 (1) Raj LW 613 : 1989 (2) Raj LR 325 (Raj) (GK Sharma, J]. [s 116.6] Stage.— The stage for passing an order under section 116(3) can arise only after the summons and notice under sections 111 and 113 have been served and the inquiry has commenced [Tarjinder Kumar v The State, (1990) Cr LJ 40 Del : 40 (1990) DLT 210 : 1990 (18) DRJ 182 : (1990) ILR 2 Delhi 350, PK Bahri, J.) [s 116.7] Evidence.— Detailed evidence is not envisaged for the inquiry under section 116 (1) [Motilal Jivanbhai Patel v Jesangbhai Nagjibhai Patel, 1988 Cr LJ 255 para 7 : (1987) 28 Guj LR 209 : 1986 CrLR (Guj) 431 (Guj). [s 116.8] Subsequent events.— The law as to subsequent events can be taken into account.

See—

(i)

Ramnarain Singh v State of Bihar, AIR 1972 SC 2225 , 2226 : 1972 Cr LJ 1444 : (1972) 2 SCC 532

(ii) Shiblal Pasan v State of Bihar, AIR 1962 Pat 369 : 1962 (2) Cr LJ 491 : 1962 BLJR 608 (iii) Pitambar Paswan v State, (1970) 76 Cr LJ 641 Ori : 35 Cut LT 749 (iv) Maluke v State, AIR 1963 Pat 313 . (v) Emperor v Rasulbux, AIR 1942 Sindh 122 . [s 116.9] Charge.— “No charge need be framed” because there is no occasion for it, as the order under section 111 which is equivalent to a charge has to be read out [Karuthaswami, AIR 1930 M 331 FB : 53 M 173]. There need be no examination under section 342 (now section 313) [Binode, 50 C 985—Contra : Raghubar, 36 Cr LJ 33]. [s 116.10] Sub-section (3) : Commencement of inquiry and interim order.— In proceedings under sections 107–110, the sub-section enables a Magistrate in cases of emergency after commencement and pending inquiry to make an interim order for security for keeping peace or for good behaviour, as the case may be. The interim order can only be made after commencement of inquiry which does not commence as soon as the delinquent appears and the notice under section 112 is read out to him. The Magistrate by adopting an acceptable judicial method must proceed to ascertain the truth of the allegations and recording findings of fact [Sona Khan v State, AIR 1981 (NOC) 30 : (1980) 50 Cut LT 245 : 1981 Cr LJ 39 FB (Ori) (overruling Hadu Palei v Chandramani Mantri, 1978 Cr LJ 1307 : (1978) 45 Cut LT 548 : 1978 Cut LR (Cri) 233 (Ori) and Uchhaba Jena v Kunjabehari Rautray, 1978 Cr LJ 124 : (1977) 44 Cut LT 381 : 1977 Cut LR (Cri) 346 (Ori); Madhu Limaye v Ved Murti, AIR 1971 SC 2481 : 1971 Cr LJ 1715 : (1970) 3 SCC 739 ; Madhu Limaye v Sub Divisional Magistrate, AIR 1971 SC 2486 : 1971 Cr LJ 1720 : (1970) 3 SCC 746 ; Govinder Singh Verma v Bachubhai T Pestonji, AIR 1972 SC 528 : 1972 Cr LJ 316 : (1972) 4 SCC 643 (SC) followed and many cases discussed)]. A proceeding under section 107 commences with the reading over of substance of accusation as commencement of summons trial under section 251 as section 112 is akin to section 251 [Sitaram Ram Chandra Angachekar v State of Maharashtra, AIR 1970 P 257 FB; Dwarkanath, 1977 Cr LJ 120 (Bom). It is not necessary to actually record any evidence before passing an order. Where the Magistrate reads out the order to the accused as to the allegations contained in the police report calling upon them to show cause why they should not be directed to execute bonds, provisions of section 116(3) were sufficiently complied

Page 4 of 8 [s 116] Inquiry as to truth of information.— with [Gopaldas Mahore v The Executive Magistrate, Gwalior, 1978 Cr LJ 857 : 1978 MPLJ 522 : 1978 Jab LJ 358 (MP) (Madhu Limaye v Sub-Divisional Magistrate, AIR 1971 SC 2486 : 1971 Cr LJ 1720 : (1970) 3 SCC 746 distd.)]. This view with respect to needs reconsideration prima facie satisfactions.

Sub-sections (1) and (2) envisage that the Magistrate must proceed to enquire into the truth of the information and only after prima facie satisfying himself about the truth and after recording his reason in writing can the interim bond be asked for [Madhu Limaye v Sub Divisional Magistrate, AIR 1971 SC 2486 , 2500 : (1970) 3 SCC 746 : 1971 Cr LJ 1720 ; Devi Ram v State of HP, 1977 Cr LJ 109 : 1977 Sim LC 128 : (1976) 3 CrLT 525 (HP); Edeyuillon Kunhambu Nair v State of Kerala, 1978 Cr LJ 107 : 1977 Ker LT 189 : 1977 Mad LJ (Cri) 172 (Ker); see also Madhu Limaye v Ved Murti, AIR 1971 SC 2481 : 1971 Cr LJ 1715 : (1970) 3 SCC 739 (SC); Purshottam Ram Agarwal v State of Bihar, AIR 1970 Pat 293 : 1970 Cr LJ 1243 : 1969 Pat LJR 606 ]. The power of the Magistrate to direct a person to execute a bond for keeping the peace or maintaining of good behaviour until conclusion of the inquiry is restricted only to cases arising under sections 108, 109 or 110 of the Code [Pramila Navin Shaha v State of Maharashtra, 2005 Cr LJ 2931 (2932) : 2005 (2) Bom CR (Cri) 761 : 2005 (4) Rec CrR 437]. The inquiry commences as soon as the opposite party in a proceeding under section 107 challenges the allegations (or submits a show cause petition against the allegations) or the Magistrate otherwise has reasons to proceed or proceeds or decides to ascertain the truth of the allegations by taking evidence or otherwise [Paresh Chandra Hati v Ahitosh Panda, 1978 Cr LJ 1171 : 1978 Cal HN 479 : 82 Cal WN 922 (Cal); (Prafulla Kumar Dutt v Ajit Kumar Datta, 1978 CalLJ 316 (Cal) overruled and Dwarkanath Ramchandra Angachekar v State of Maharashtra, 1977 Cr LJ 120 (Bom) dissented)]. [s 116.11] Form of Inquiry.— No particular form of enquiry is envisaged. It is enough that there are some materials before the Magistrate from which he feels satisfied that immediate measures are necessary [Syamlal Sah v Ramballabh Jalan, AIR 1968 Pat 295 : 1968 Cr LJ 1110 (1)]. Consideration of police papers or hearing advocates is a stage in the enquiry even before evidence is recorded [Dulal Chandra Mondal v State, AIR 1953 Cal 238 : 1953 Cr LJ 574 ]. Order passed by the Magistrate after examining the appellants and sub-inspector of police is a valid order [Govinder Singh Verma v Baihubhai T Pestonji, AIR 1972 SC 528 : 1972 Cr LJ 316 : (1972) 4 SCC 643 (SC)]. Magistrate cannot adjourn case and in the interval send the person to jail if he fails to furnish a bond [Madhu Limaye v Sub Divisional Magistrate, AIR 1971 SC 2486 : (1970) 3 SCC 746 : 1971 Cr LJ 1720 ]. An order passed under section 116(3) on complaint under section 107 does not amount to interim bond within proviso to section 116(3) [Govinder Singh Verma v Bachubhai T Pestonji, AIR 1972 SC 528 : 1972 Cr LJ 316 : (1972 4 SCC 643]. sections 116 (3) and 123 (2) : Detention under section 116 (3) does not attract section 123 (2), [Gur Dayal v State, ILR (1976) 2 Del 330 ]. [s 116.12] Section 116(3)—Reasons.— For passing an order for interim bond under section 116 (3), urgency is required [Edeyillon Kunhambu Nair v State of Kerala, 1978 Cr LJ 107 : 1977 Ker LT 189 : 1977 Mad LJ (Cri) 172 (Ker)], Reasons must be recorded, Charles Decourpalay v State of Mysore, (1961) Cr LJ 536 (Mys)]. Person already in detention cannot be required to execute interim bond. [Madhu Limaye v Ved Murti, AIR 1971 SC 2481 : 1971 Cr LJ 1715 : (1970) 3 SCC 739 (SC)]. [s 116.13] Local Inspection.— Interim order cannot be based on local inspection only according to the High Court of Andhra Pradesh on the reasoning that section 310 is not a substitute for evidence. Palaparti Appanna v Palaparti Konda, 1975 Cr LJ 1129 : 1975 (1) Andh WR 230 : 1975 Mad LJ (Cri) 225 (AP). [s 116.14] Commencement of Inquiry.— The order for interim bond cannot be passed without holding some inquiry. Magistrate cannot defer the inquiry totally and act on police report [Uchhaba Jena v Kunjabehari Rautray, 1978 Cr LJ 124 : (1977) 44 Cut LT 381 : 1977 Cut LR (Cri) 346 (Ori-DB); Perumal v State, 1985 Cr LJ 226 1984 Mad LW (Cri) 173 : 1985 Mad LJ (Cri) 22 Mad].

The Magistrate cannot adjourn the case and in the interval send the person to jail if he fails to furnish a bond under section 116(3). An immediate inquiry into the truth of information is contemplated by section 116(1) and pending the conclusion of the inquiry an interim bond can be asked for [Chanderbhan, (1976) 78 PLR 373 ; Edeyillon Kunhambu Nair v State of Kerala, 1978 Cr LJ 107 : 1977 Ker LT 189 : 1977 Mad LJ (Cri) 172; Bakssi Singh, Kash LJ 311].

Page 5 of 8 [s 116] Inquiry as to truth of information.— [s 116.15] Interim Bond.— The interim order must be resorted to in emergent cases where immediate measure is necessary and not as a matter of routine. Careful consideration should be given to the emergency contemplated and order should not be passed on police suspicion [Hurmat v State, AIR 1953 Pal 132 : 1953 Cr LJ 916 ] or on a mere statement that report of police officer indicates a likelihood of breach of peace [Jagdish Prasad Verma v The State, AIR 1957 Pat 106 : 1957 Cr LJ 386 : 1956 BLJR 654 : ILR 35 pat 833; Jadumani Sahu v The State, AIR 1961 Ori 53 : 1961 (1) Cr LJ 4120 : 26 Cut LT 263; Amir Singh v The State, AIR 1962 Pat 51 : 1962 (1) Cr LJ 181 : 1961 Pat LT 79; Moulvi Musharraf Ahmed v State, AIR 1969 Del 12 : 1969 Cr LJ 43 : (1968) 70 Punj LR (D) 390 ]. The Magistrate must himself be satisfied that there is apprehension of breach of peace [Munshi Gafur, 22 Cut LT 779; Jadumani, sup]. Order under sub-section (3) is not legal unless it is passed after the order under section 111 has been read out under section 112 [Sidik, AIR 1943 SC 163 ; see Yusuf Jumo, AIR 1943 SC 175 ; Malla Mahamadoo v State, AIR 1966 J&K 29 : 1966 Cr LJ 145 : 1966 Kash LJ 1 ; Sharvan Kumar Gupta v Superintendent District Jail, AIR 1957 All 189 ; Balraj Madhok v UOI, AIR 1967 Del 31 : 1967 Cr LJ 865 ]. No interim order can be passed along with an order under section 111 [Jagdish Prasad Verma v The State, AIR 1957 Pat 106 : 1957 Cr LJ 386 : 1956 BLJR 654 : ILR 35 BLJR 833; Ramasrey Prasad Choudhary v State of Bihar, AIR 1969 Pat 369 : 1969 Cr LJ 1420 ]. It can only be passed after the parties have appeared as required by section 111 and the Magistrate proceeding with the enquiry finds any necessity to do so [In re: Venkatasubba Reddy, AIR 1955 AP 96 : 1955 Cr LJ 779 : 1954 Andh LT (Cri) 89 : 1954 (2) Mad LJ 250;

Jagadish, sup; Prabhakar Nath Dwivedi v District Magistrate, AIR 1960 All 467 : 1960 Cr LJ 1049 : 1960 All LJ 206 : 1960 All WR 145]. No interim bond can be demanded where allegations are of breach of peace falling under section 107 of Code of Criminal Procedure, 1973 [Pramila Navin Saha v State of Maharashtra, 2005 Cr LJ 2931 (2932) : 2005 All MR (Cri) 1233 : 2005 (2) Bom CR (Cri) 761 ].

“Any offence” does not mean a particular offence; it means an offence of the nature set out in section 110 [Md. Rahim, AIR 1943 SC 173 ; see Bachal, AIR 1942 SC 77 ; Summar, 41 Cr LJ 937]. Interim order on the ground of the person being “a danger to the witnesses against him” is justified [Pir Shah, 27 Cr LJ 1030]. [s 116.16] Sub-section (3)—Proviso (b).— Where the preliminary order under section 111 specifies the bond amount to be Rs. 2,000/- but the person is directed to execute interim bond of Rs. 10,000, the direction contravenes proviso (2) and is to be set aside [Edeyillon Kunhambu Nair v State of Kerala, 1978 Cr LJ 107 : 1977 Ker LT 189 : 1977 Mad LJ (Cri) 172 (Ker)]. [s 116.17] Sub-section (4)—Evidence of General Repute.— Reputation evidence has already been discussed (see ante, section 110 : “Evidence” Admissibility of evidence of repute being an exception to the ordinary rules of evidence, the court must be very careful to see that in the garb of reputation evidence indicating that a witness may choose to say against a person based on rumour, suspicion, gossip or private grudge, or any opinion of a police officer that a person is of evil repute, collected from such rank hearsay materials, is not passed off as reputation evidence. It is not the witness’s own opinion, nor the repetition of the opinion of some individuals, but the opinion of the community as a whole in the neighbourhood where the person lives which may be regarded as reputation evidence. (For fuller discussion, see Sarkar’s Evidence, 13th Edn p 587). Reputation evidence must be strong and almost universal [Wali Md. AIR 1925 Lah 166 : 81 Ind. Cas. 344]. If the reputation is not the opinion of the entire community, it must be the opinion of a considerable number of persons [Ranga Reddi, 43 M 450, 460; Bechai, 15 Cr LJ 705; Jhandu, 16 Cr LJ 106; Kewal, 26 Cr LJ 1283]. Section 116 (4) should not be interpreted as a general rule of evidence for every security case. It is really an exception to that general rule [Rathiman, AIR 1938 Mad 35 : 172 Ind. Cas. 866 : 1937 46 LW 858 : (1937) 2 Mad LJ 749] and no extension of reputation evidence beyond the limits in the sub-section is permissible [San Dun, 2 R 641]. The evidence must relate to what the reputation is and not what it was in the past. [s 116.18] Evidence of reputation.— As it is difficult under the ordinary law to bring home charges for substantive offences against persons who roam about and habitually indulge in the offences contemplated in section 110, reputation evidence is admitted out of necessity. But the infirmity and easy availability of such evidence should never be lost sight of. It has therefore been emphasised by experienced judges that being an extraordinary rule of evidence, evidence of repute should be considered very carefully. Mere enumeration of the number of persons giving evidence is not enough [Sdk, Ohid v The Crown, AIR 1950 Cal 117 : 1950 Cr LJ 856 ]. If at all, such evidence should be acted

Page 6 of 8 [s 116] Inquiry as to truth of information.— upon with great caution and scrutiny [Eadu, 54 C 279, Kurwa, 30 Cr LJ 122; Shanmugham, 39 Cr LJ 588]. The Magistrate must test the evidence (Talack, 2 Bom LR 57] and consider its value and weight against the defence evidence [Gurbaksh, 12 Cr LJ 542; Bansidhar, 18 Cr LJ 649]. It is the weakest form of evidence and requires material corroboration [Shanmugham, sup]. [s 116.19] “Or otherwise”.— The words ejusdem generis mean hearsay not amounting to general repute [Kallu Mal, 1904 AWN 140]. The other view is that evidence of specific facts is admissible under the ordinary rules of evidence to prove habitual crime. It includes all the ordinary modes of proof, e.g., personal observation, evidence of conduct, association, admissions, etc. [Kalka, 40 A 153, 155]. Thus, evidence of association with proven bad characters and not with reputed bad characters is also evidence of reputation [Nepal, 13 Cal WN 318]. The effect of the words “or otherwise” is to render admissible any evidence relevant on a charge of being habitual offender [Sarju, 41 A 231]. [s 116.20] Sub-section (5)—Associated together.— [Joint Trial]. Ordinarily every one is entitled to have his case considered separately on its own merits without being mixed with and prejudiced by the case of other [Kadir, 9 A 452; Jad Saho, 23 Cr LJ 100]. The main principles of joint trial are applicable to inquiries under this section [Pran Kr., 8 Cal WN 180] Sub-section (5) allows joint enquiry where several persons are proved to be associated together [Deodhari, AIR 1925 Pat 131 : 86 Ind. Cas. 274; Jai Saho, AIR 1923 Pat 104 ; Nizamuddi, 23 Cal WN 488; Bishundeo, 12 PLT 880; Jharua Mian v The State, AIR 1959 Pat 219 : 1959 Cr LJ 639 : 1958 BLJR 772 ] in the same offence, if the Magistrate considers such a course necessary and just. Even when association is established, he has a discretion to enquire separately [Hari Telang, 27 C 781] and it is advisable to do so unless the persons are inextricably mixed up with one another [Nakched, 1892 AWN 92; Nathu, 6 A 214]. As the question of joint or separate trial has to be determined before the enquiry commences, it is clear that it is on the basis of the accusation made and not on the facts finally proved on evidence that the legality or illegality of a joint trial depends [Sk. Ohid v The Crown, AIR 1950 Cal 177 : 1950 Cr LJ 856 ].

Persons are “associated together”, when they act in concert or in conspiracy whether due to mutual agreement [Jogendra, 25 Cal WN 334; Kalu 37 C 91; JaiSaho,23 Cr LJ 100; Godhan, 4 PLJ 7; Parbati, 61 C 588], or in obedience to the order of a common master [Srikanta, 9 Cal WN 898], or act as confederates or partners against all of whole evidence is equally applicable [Angnu, 45 A 109; Parasulla, 13 Cal WN 244; Md. Ismail 25 Cr LJ 952; Krupasindhu Panigrahi v Rex, AIR 1951 Ori 277 : (1951) 52 Cr LJ 848 : ILR (1949) 1 Cut 751 ; see Shamsuddin, AIR 1925 Nag 381 ]. For a joint trial, it is not necessary that the suspects should be shown to be associated together in the order itself [Thanwor, AIR 1926 SC 69 ].

In section 116 (5), the words “persons associated together” cannot take within their fold, members of two hostile parties. For members of rival parties, there can never be a joint injury [KP Murugesan v State by Inspector of Police, 1984 Cr LJ 760 : 1983 (2) Crimes 712 : 1983 Mad LW (Cri) 221 : 1984 Mad LJ (Cri) 192 (Mad)]. [s 116.21] Joint trial.— The fact that two or more persons are charged as being dangerous or desperate pertains to each separately and they cannot be tried jointly [Rathiman, AIR 1938 Mad 35 ; Hari Telang, 27 C 781; Kutti, AIR 1925 Mad 189 ]. It is unjust and unfair to proceed jointly unless the persons formed a gang [Md. Ismail, AIR 1924 All 195 ]. In every case, it is to be considered how far the evidence proves association and how far the persons are prejudiced by a joint trial [Ganti Veera, 39 Cr LJ 816; Rangoo, AIR 1934 Rangoon 121 : (1934) ILR 12 RANG 169 : 151 Ind. Cas. 205]. Also there can be no joint inquiry if persons are being tried under sections, e.g. sections 109 and 110 [Mehen, 2 Cr LJ 224]. Joint trial is prejudicial when action is taken under section 110 (g) alongwith other clauses [Kutti, AIR 1952 Mad 189 ]. Nor can parties opposed to or in conflict with each other be tried jointly [Ganapathi, 31 M 276; Kamal, 11 Cal WN 472; Farid, 16 Cr LJ 235; Kishore, 26 Cr LJ 1248; Kshetra, AIR 1943 P 376; The Crown v Laxmi Narayana Lala, AIR 1951 Nag 306 : (1951) 52 Cr LJ 181 : 1951 Nag LJ 246 : ILR 1950 Nag 859 ]. Objection to joint trial should be taken at the earliest opportunity [Amjad Ali, 25 Cr LJ 35].

Joint trial improperly held is not necessarily void in the absence of actual prejudice [Abdul Kadir, 9 A 452; Nathu, 6 A 214; Akhoy, 5 Cal WN 249; Parbati, AIR 1934 Cal 482 : 149 Ind. Cas. 460 : (1934) ILR 61 Cal 588; see however Ganapathi, 31 M 276].

Page 7 of 8 [s 116] Inquiry as to truth of information.—

In joint trial, prosecution must establish what each individual has done [Pran Kr., 8 Cal WN 180; Abdul Kadir, sup; Brijnandan, 37 A 33; Bahadur, 10 Cr LJ 591; Jaigobind, 13 Cr LJ 760]. It is only fair that the case of each individual accused must be considered separately and individually on its own merits [Ghousbux, AIR 1937 SC 26 ; Kalu Mirza, 37 C 91; Nathu, 6 A 214; Bahadur, sup; Khairo, AIR 1925 SC 204 ]. There must also be a separate finding against each individually [Dhanoo, 34 Cal WN 144; Ajodhya, 35 C 929; Kalu Mirza, sup; Brijnandan, sup; Jharua Mian v The State, AIR 1959 Pat 219 : 1959 Cr LJ 639 : 1958 BLJR 772 ]. Where the cases of individual persons have not been separately considered and the evidence against each has not been summarised, order under section 107 must be set aside [Sajan, AIR 1943 Pat 417 ; Jangi Gope v The State, AIR 1959 Pat 304 : 1959 Cr LJ 887 : 1958 BLJR 352 ]. [s 116.22] Sub-section (6)—Mandatory provision.— The provisions are mandatory. The proceedings shall stand terminated—(a) as against person not in detention, by operation of law on the expiry of a period of six months from the date of the commencement of the inquiry, but the Magistrate for special reasons to be recorded in writing can extend the period before the expiry of six months and continue the proceedings [Ummed Ali, 1977 All Cr R 147; Nasiru v State of Haryana, (1977) 79 Punj LR 409 : 1978 Cr LJ 603 : (1977) 4 CrLT 185], and (b) against a person in detention on the expiry of a period of six months of such detention which period has no relation to the date of the commencement of the inquiry and which period the Magistrate will have no power to extend [Nasiru, sup]. Where before the expiry of six months the record was sent to the High Court in a revision against that order it could not be pleaded in revision that as six months expired during pendency of revision, the proceedings should be terminated. The Magistrate was directed to consider whether special reasons existed to continue the proceedings [Arakhita Swain v Bansidhar Sahu, 1981 Cr LJ (NOC) 41 : (1981) 51 Cut LT 33 (Ori)].

The statutory provision is that the enquiry under section 116 of the Code must be completed within the period of six months and if it is to be continued beyond the said period of six months, the concerned Magistrate is to record “special reasons” in writing [Radhe Shyam Pandey v State, 2008 Cr LJ 890 (891) (Cal)].

Where the enquiry continued for several years, and the Magistrate had not recorded special reasons for adjourning the enquiry, the enquiry was held to have stood terminated on the expiry of six months [Radhe Shyam Pandey v State, 2008 Cr LJ 890 (892) (Cal); Mahesh Prasad v State of Bihar, 2009 (1) Pat LJR 579 (Pat)].

In view of the definition of “inquiry” and also section 116(1), the enquiry commences as soon as the accused appears before court and Magistrate proceeds with the case [Mohammed Kutty v State of Kerala, 2007 Cr LJ 3016 (3020) : 1995 Cr LJ 3293 (Ker) overruled].

Inquiry commences from the date when show cause is filed. [Dhirendra Nath Chakraborty v Sarama Debi, 1983 Cr LJ 44 (Cal); Paresh Chandra Hati v Ahitosh Panda, 1978 Cr LJ 1171 : 1978 Cal HN 479 : 82 Cal WN 922 (Cal) followed].

It commences either when opposite party appears and shows cause or his plea is taken, six month’s limitation starts from that date. Hence, order of extension must also be passed before expiry of that period; if it is not done so, the said order would be liable to be set aside [Bhagaban Pradhan v Jai Ram Mohanty, 1995 Cr LJ 607 (Ori)].

It has been provided that the proceedings of section 116(6) would run for six months only from the date of commencement, and if in such a period inquiry is not completed, said proceedings would automatically be deemed to be ended after the expiry of prescribed period [Bhagat Ram v Kanti Devi, 1995 Cr LJ 1404 : 1995 (1) ShimLC 234 (Himachal Pradesh)]. [s 116.23] Continuation of proceedings.— Continuation of proceedings by the Magistrate under section 107 beyond six months from the date of extension

Page 8 of 8 [s 116] Inquiry as to truth of information.— (without any further order for extention) is illegal. [Ramdeo Yadav v State of Bihar, 1985 Cr LJ 436 : 1984 (1) Crimes 1055 : 1984 Pat LJR 259 (Pat)].

Where the proceedings under sections 107 and 116 stand terminated no new proceedings can be initiated on the same ground.[Hausala Bux Singh v Prembala, 1981 Cr LJ (NOC) 153 (All)]. The “commencement of inquiry” in sub-section (3) and (6) refers to the same stage [Sona Khan v State, AIR 1981 (NOC) 30 : 1981 Cr LJ 39 FB : (1980) 50 Cut LT 245 : ILR (1980) 2 Cut 51 (Ori); see notes under heading “Sub-sec (3)” ante.

If the period of 6 months expires and there is no case for extension, the inquiry automatically stands terminated [Christalin v State of Goa, 1992 Cr LJ 3608 : 1993 Bom Cr 688 : 1993 (2) Mah LJ 1409 (Bom) DA Sihra, J.]. [s 116.24] History.— Section 116 (6) and section 116(7) were not found in the original Bill but were inserted by the Joint Committee (Report page xii, clause 116) which made the following observations :

Obviously the provisions are not intended to be used for keeping persons in detention without trial for long periods. The object of the provisions is to prevent breach of the peace and unless the proceedings are completed within a reasonable time recourse to drastic powers under these provisions would not be justified. Similar considerations would apply also to proceedings relating to bonds for good behaviour.

[s 116.25] Section 116(7).— If an extension is granted without sufficient cause, it can be cancelled on application under section 116 (7) [Krishnadeo Singh v State of Bihar, 1985 Cr LJ 1763 : 1985 Pat LJR 298 : 1985 East Cr C 163 (Pat) para 6, 8 DB]. [s 116.26] Revision.— An order under section 116 (3) is not an interlocutory order and hence revisable under section 397 (2) [Bhindeshwar, 1977 BLJR 99 ; Manjoor Ahmad v State of Bihar, 1978 Cr LJ (NOC) 243 : 1978 Pat LJR 475 : 1978 BLJR 680 (Pat)— Contra [Shima Naik Bhim v State, 1975 Cr LJ 1923 : 41 Cut LT 674 : 1975 Cut LR (Cri) 180 (Ori)]. The High Court has also inherent jurisdiction preserved to it under section 482 and also can quash the proceeding under Article 227 of the Constitution of India [Amalendu, 80 Cal WN 933]. [s 116.27] Sections 88 and 116.— See Velu v State of Kerala, 1973 KLJ 663 (review case law) and Govinder Singh Verma v Bachubhai T. Pestionji, AIR 1972 SC 528 : 1972 Cr LJ 316 : (1972) 4 SCC 643 (SC). [s 116.28] Writ.— Writ has to quash an order passed under section 116 without jurisdiction [Uchhaba Jena v Kunjabehari Rautray, 1978 Cr LJ 124 : (1977) 44 Cut LT 381 : 1977 Cut LR (Cri) 346 Ori]. End of Document

[s 117] Order to give security.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER VIII SECURITY FOR KEEPING THE PEACE AND FOR GOOD BEHAVIOUR

The Code of Criminal Procedure, 1973 CHAPTER VIII SECURITY FOR KEEPING THE PEACE AND FOR GOOD BEHAVIOUR [s 117] Order to give security.— If, upon such inquiry, it is proved that it is necessary for keeping the peace or maintaining good behaviour, as the case may be, that the person in respect of whom the inquiry is made should execute a bond, with or without sureties, the Magistrate shall make an order accordingly: Provided that— (a) no person shall be ordered to give security of a nature different from, or of an amount larger than, or for a period longer than, that specified in the order made under section 111; (b) the amount of every bond shall be fixed with due regard to the circumstances of the case and shall not be excessive; (c) when the person in respect of whom the inquiry is made is a minor, the bond shall be executed only by his sureties. [s 117.1] Changes.— Section 117 corresponds to the old section 118. The provisions have been numbered (a), (b) and (c) instead of first, secondly and thirdly. [s 117.2] Scope and application of section 117.— The section applies equally to an order under section 107 and under sections 108–110 [Harihar, AIR 1932 A 122]. When the result of the enquiry is unfavourable to the accused, the court passes final order under this section which contains three directions; (1) the terms and conditions should not be more onerous than those given in the preliminary notice under section 111; (2) the amount of bond shall not be excessive, i.e. should correspond with the ability of the person to furnish; (3) in case of a minor, the bond shall be executed only by the sureties. Person against whom order is passed is not “convicted” within section 426 (now section 389) [Charan, AIR 1930 P 274; see Chandra, AIR 1934 C 808]. [s 117.3] Period of security.— The final order is to contain a direction to furnish security for good behaviour which cannot in any case exceed one year (except under section 111 where it cannot exceed 3 years) and which must be beyond that specified in the order under section 111. It is illegal to specify any period of imprisonment in default [Rangi, AIR 1936 Nag 265 : 167 Ind. Cas. 403]. Every order under section 117 shall contain the points for determination, decision thereon and reasons [see section 354 (6)]. A certified copy of the order is to be given on application free of cost [see section 363 (3)]. It must be self-contained and show that the case of each accused has been considered individually and separately [Ghousbux, AIR 1937 SC 26 ]. [s 117.4] With or without sureties.—

Page 2 of 2 [s 117] Order to give security.— The bond can be with or without sureties. If it is without sureties, the provisions of section 122 Cr LJ (b) can be applied by the Magistrate on breach of bond (arrest and detention in prison for the remaining period). [s 117.5] Discretion.— What is “necessary” depends on the facts of each case. When an occasion likely to cause a breach of the peace is to last for a fortnight, it is a most excessive exercise of power to require security for one year [Nathu, 6 A 214]. It is very questionable whether one can be bound over on the hypothesis that if certain things happen he may commit a breach of the peace [Narayandass, 1931 MWN 402 ]. Time runs from order passed under section 117 [Ghousbux, AIR 1937 SC 26 ]. The security required is a bond and not movable property [Md. Baksh, 25 Cr LJ 796]. If there is any apprehension that the surety will part with his property, a hypothecation bond may be taken from him [Harihar, AIR 1932 All 122 : 136 Ind. Cas. 65]. [s 117.6] Contents of order.— The order should specify the date by which the surety is to be furnished [Baso Rai, 48 Cr LJ 409]. Sufficient time should be given for furnishing security [Mg Tun, 27 Cr LJ 318]. Security can be accepted even after the accused has been sent to jail [Muhammad, AIR 1928 Lah 64 : 107 Ind. Cas. 286]. For determining the sufficiency or fitness of sureties, the court may accept affidavits or may hold an enquiry itself or cause an enquiry to be made by a Magistrate subordinate to it [section 44(4)]. [s 117.7] Second order.— A second order to give further security during the continuance of the first one is not legal [Md. Abdul Bari, 4 Cal WN 121; Rajkumar, 20 Cr LJ 486]. Nor can such order be passed under any other Act, when an order under section 117 is in force [Pan Zyaw, AIR 1923 R 134]. [s 117.8] Proviso 1.— The final order must not be at variance with what was specified in the notice [Remanand, 8 Cr LJ 344]. Thus, securities cannot be asked for if they were not mentioned in the notice [Isree Pd., 18 WR 61] or bond for good behaviour cannot be required when the notice was in regard to keeping the peace [Driver, 25 C 798]. The period cannot be made longer [Ram Ch, 26 M 471] or amount cannot be made larger [Sultan, 26 Cr LJ 757] than what was mentioned in the notice. [s 117.9] Proviso 2.— The object being not to punish, common fairness requires that the amount should be reasonable, otherwise the person has to undergo imprisonment for inability to furnish security. The amount should be fixed with due regard to the circumstances of the case and the person’s means and station in life [Rama, 16 B 372; Juggut, 2C 110; Raja Ali, 23 A 80; Satgur, AIR 1933 A 674; High Court Bar Association, AIR 1932 Lah 559 : 139 Ind. Cas. 696]. It should ordinarily be such as may enable the party to get a surety. Previous convictions, if any, need not be taken into account [Md. Yasin v State of Gujarat, AIR 1969 Guj 267 : 1969 Cr LJ 1133 : 10 Guj LR 847]. [s 117.10] Appeal and revision.— Appeal from an order lies to the Sessions Court (section 373). Revision lies both to the High Court and Sessions Judge (section 397).

When no discretion has been exercised or where the discretion in the matter of security has been exercised in an unreasonable and improper way, the High Court will interfere [Juggut, 2 C 110]. End of Document

[s 118] Discharge of person informed against.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER VIII SECURITY FOR KEEPING THE PEACE AND FOR GOOD BEHAVIOUR

The Code of Criminal Procedure, 1973 CHAPTER VIII SECURITY FOR KEEPING THE PEACE AND FOR GOOD BEHAVIOUR [s 118] Discharge of person informed against.— If, on an inquiry under section 116, it is not proved that it is necessary for keeping the peace or maintaining good behaviour, as the case may be, that the person in respect of whom the inquiry is made, should execute a bond, the Magistrate shall make an entry on the record to that effect, and if such person is in custody only for the purposes of the inquiry, shall release him, or, if such person is not in custody, shall discharge him. [s 118.1] Changes.— Section 118 corresponds to the old section 119 verbatim. [s 118.2] Scope and application of section 118.— If the case against the person is not proved in the inquiry, he should be discharged. “Acquittal” is inappropriate. [Bhagat, AIR 1938 A 49]. If the complainant is absent, he is also discharged [Asafali, 31 Cal WN 288; Jasu, 24 Cr LJ 232]. “Discharged” is used in the sense of “permission” to depart [Velu Tayi, 33 M 85; Muthia, 36 M 315]. Section 436 (now section 398) makes it clear that it applies only to one “accused of an offence” and it does not therefore include a person proceeded against under the security sections [Roshan, 46 A 235; Neur Ahir, AIR 1928 All 755 : 113 Ind. Cas. 79 : (1929) ILR 51 All 408; Phani, 25 Cr LJ 679; Kriparam, AIR 1941 L 185; Mg Than, 2 R 30]. Hence as the old section 436 did not apply as Sessions Judge’s revisional powers were limited to old sections 436 and 437 only, the Sessions Judge could not set aside the order of discharge and order further enquiry [Neur Ahir, sup : Md. Yusuf, 53 A 148 : AIR 1931 A 53] but in a fit case, Sessions Judge could under old section 438 make a report to the High Court to interfere under old section 439 (now section 401). Under the present Code as Sessions Judge’s power of revision has been made co-extensive with the power of revision of High Court, Sessions Judge may himself in a fit case interfere by exercise of power under section 399 as High Court may under section 401, though the situation does not attract particular section 398 (old section 436).

Magistrate may however institute further proceedings on fresh information [Iman, 27 C 662] or fresh police report [Chandan, 14 Cr LJ 189].

End of Document

[s 119] Commencement of period for which security is required.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER VIII SECURITY FOR KEEPING THE PEACE AND FOR GOOD BEHAVIOUR

The Code of Criminal Procedure, 1973 CHAPTER VIII SECURITY FOR KEEPING THE PEACE AND FOR GOOD BEHAVIOUR [s 119] Commencement of period for which security is required.— (1) If any person, in respect of whom an order requiring security is made under section 106 or section 117, is, at the time such order is made, sentenced to, or undergoing a sentence of, imprisonment, the period for which such security is required shall commence on the expiration of such sentence. (2) In other cases such period shall commence on the date of such order unless the Magistrate, for sufficient reason, fixes a later date. [s 119.1] Changes.— Section 119 corresponds to the old section 120 verbatim. [s 119.2] Scope and application of section 119—Sub-section (1).— “Order” means the final order [Taranagowd, AIR 1927 Mad 542 : 106 Ind. Cas. 589 : (1928) ILR 51 Mad 515 : (1928) 55 Mad LJ 24 : 1927 MWN 185]. If at the time of the order for security the person is already undergoing a sentence of imprisonment for other offences, the period for the security commences not from the date of the order but from the date when the sentence expires [Lashkaro, AIR 1937 SC 203 ; Fateh, AIR 1929 SC 166 ; Fazul Khush, AIR 1941 SC 190 ]. The Magistrate shall make this position clear in his order [Hussain, AIR 1937 SC 204 ]. If the person bound over was on bail pending an appeal against a conviction (under section 147 Indian Penal Code, 1860) an order that sentence would commence after the expiry of the security order is illegal [Jhabdey, 22 Cr LJ 95]. An order under section 122 (2) does not affect the operation of this section [Lashkaro, AIR 1937 SC 203 ]. When the order under section 117 is appealed against, the period commences from the date of dismissal of appeal [Abdul Sattar, AIR 1938 O 195]. [s 119.3] Sub-section (2).— Gives power to the Magistrate to postpone the date of commencement of the order for security. The object is to give time to the person instead of at once ordering imprisonment as if in default [Md. Abdul, 4 Cal WN 121]. If during the extended time he is convicted of an offence committed prior to the order under section 117, the Magistrate is not competent to fix the date of expiry of such sentence as the date for computing the period from which security is to be given [Ahmed, AIR 1926 SC 273 FB; Saidu, AIR 1927 SC 166 ]. End of Document

[s 120] Contents of bond.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER VIII SECURITY FOR KEEPING THE PEACE AND FOR GOOD BEHAVIOUR

The Code of Criminal Procedure, 1973 CHAPTER VIII SECURITY FOR KEEPING THE PEACE AND FOR GOOD BEHAVIOUR [s 120] Contents of bond.— The bond to be executed by any such person shall bind him to keep the peace or to be of good behaviour, as the case may be, and in the latter case the commission or attempt to commit, or the abetment of, any offence punishable with imprisonment, wherever it may be committed, is a breach of the bond. [s 120.1] Changes.— Section 120 corresponds to the old section 121 verbatim. [s 120.2] Scope and application of section 120.— The section refers to bonds both to keep peace and to be of good behaviour. The latter portion of the section is intended merely as an illustration of some modes in which peace may be broken, and is not to be read as a definition of the acts which will give rise to the liability to the penalty of the bond. The actual commission of some punishable offence need not be established. All that is necessary to show is that some act was done which was likely in its consequences to provoke a breach of the peace [Ananthachari, 2 M 169, 173; see however, Jalal, 11 Cr LJ 252]. Bonds for keeping peace of persons who are convicted of offence within the period and their sureties could be forfeited but not of those who are acquitted [Bhagwan, AIR 1967 All 580 : 1967 Cr LJ 1588 ]. Mere fact of conviction of the principal of a breach of the peace is not sufficient to forfeit a bond. To make the surety liable, evidence as to forfeiture should be taken in the presence of the surety who should be given an opportunity of cross-examining the witnesses [Har Ch, 25 C 440]. Procedure on breach of bond (section 446). The burden is on the surety to show what cause he can [Manmohan, 21 A 86]. [s 120.3] Surety’s liability.— Surety should not be made liable unless the principal commits an offence similar to that for which security was given [Udham, 14 Cr LJ 575 (bond under section 110(b) but subsequent conviction for grievous hurt); see Sher Singh, 16 Cr LJ 548—Contra Surety is liable for any offence committed, Sheo Jangal, AIR 1928 All 232 : 113 Ind. Cas. 740 : (1928) ILR 50 All 666]. If on conviction Magistrate does not order forfeiture, he should be held to have decided not to take any action [Mawaz, 14 Cr LJ 67; Bega, 16 Cr LJ 194contra : Rajaram, 26 A 202]. [s 120.4] Breach of bond to keep peace.— Breach of bond is not caused by commission of any offence—E.g. theft, Haran Kr., WR 63 Cr. It is broken when the act is likely to provoke breach of peace [Ananthachru, ILR 2 Mad 169], the bond may be forfeited if breach of peace takes place, it is immaterial whether the assault constituting breach of peace was committed against the person at whose instance the order was passed or not [Babooram, 15 WR 14]. The filing of a civil suit in respect of the matters to which the order relates is not a breach of the bond though it may arouse feelings towards breach of peace [Sital, ILR 1 Lah 310].

Page 2 of 2 [s 120] Contents of bond.—

Conviction is not necessary, Commission of offence can be proved by other evidence—[see Saba 299, Mansur 24 Cr LJ 588, Sher Jangal ILR 50 All 666].

Being found in suspicious circumstances without means of livelihood is not breach of bond to keep peace [Bahadur, AIR 1932 All 58 : 136 Ind. Cas. 373 : (1932) ILR 54 All 335]. [s 120.5] Breach of bond for good behaviour.— Breach of bond for good behaviour is committed whenever any offence punishable with imprisonment is committed. Place of commission is immaterial [Sham Sunder, 2 BLR (AC) 11]. Conviction for simple hurt amounts to breach [Abdul Aziz, ILR 4 Lah 462]. Conviction for grievous hurt amounts to breach [Sher Singh, AIR 1914 Lah 563 ].

End of Document

[s 121] Power to reject sureties.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER VIII SECURITY FOR KEEPING THE PEACE AND FOR GOOD BEHAVIOUR

The Code of Criminal Procedure, 1973 CHAPTER VIII SECURITY FOR KEEPING THE PEACE AND FOR GOOD BEHAVIOUR [s 121] Power to reject sureties.— (1) A Magistrate may refuse to accept any surety offered, or may reject any surety previously accepted by him or his predecessor under this chapter, on the ground that such surety is an unfit person for the purposes of the bond : Provided that, before so refusing to accept or rejecting any such surety, he shall either himself hold an inquiry on oath into the fitness of the surety, or cause such inquiry to be held and a report to be made thereon by a Magistrate subordinate to him. (2) Such Magistrate shall, before holding the inquiry, give reasonable notice to the surety and to the person by whom the surety was offered and shall, in making the inquiry, record the substance of the evidence adduced before him. (3) If the Magistrate is satisfied after considering the evidence so adduced either before him or before a Magistrate deputed under sub-section (1), and the report of such Magistrate (if any), that the surety is an unfit person for the purposes of the bond, he shall make an order refusing to accept or rejecting, as the case may be, such surety and recording his reasons for so doing : Provided that, before making an order rejecting any surety who has previously been accepted, the Magistrate shall issue his summons or warrant, as he thinks fit, and cause the person for whom the surety is bound to appear or to be brought before him. [s 121.1] Changes.— Section 121 corresponds to the old section 122 verbatim. [s 121.2] Scope and application of section 121.— The section deals with: (1) refusal to accept any surety; (2) rejection of a surety previously accepted; (3) enquiry into the fitness of a surety, and (4) delegation of such enquiry to a subordinate Magistrate. Deposit inlieu of recognizance (section 445).

Fitness or unfitness is a matter for discretion of the Magistrate [Jalil, 13 Cal WN 80; Rameshwar, 24 Cr LJ 795; Budhu Ahir, 25 Cal WN 140], but the discretion must be exercised in accordance with law Bhawani, 15 Cr LJ 54; Rayon, 43 O 1025] on valid and reasonable grounds [Abdul Khan, 10 Cal WN 1027; Asiraddi, 41 C 764] and not arbitrarily or unreasonably [Rahim Baksh, 20 A 206; Budhu Ahir, sup]. [s 121.3] Refusal after inquiry.—

Page 2 of 2 [s 121] Power to reject sureties.— Surety cannot be refused without an enquiry by Magistrate [Akbar Ali, 42 C 706; Rayan, sup; Bhawani, 15 Cr LJ 1554]. The enquiry is judicial [Piru Abdulla, 15 Cr LJ 378] on oath or affirmation [Ghulam Mustafa, 25 A 371]. Under section 441 (4); in the matter of bail bonds for determining the sufficiency or fitness of sureties the court may accept affidavits or may hold an inquiry itself or cause an inquiry to be made by a Magistrate subordinate to it. In order that independent judgment may be exercised, it is required that grounds of refusal must be recorded [Abdul Khan, sup; Ela Buksh, 14 Cal WN 709; Kalu Mirza, 37 C 91; Jesha, 44 B 385]; otherwise the order would be set aside [Ela Buksh, sup; Hor Ali, 13 Cal WN xxvii]. No entry is of course necessary when the Magistrate is satisfied and accepts surety [Azizar, 41 Cal WN 415]. [s 121.4] Refusal to accept surety.— Refusal to accept surety on report of police officer only without any enquiry is unjustified [Bhawani, 12 ALJ 1004; Tota, 25 A 272; Sukhai, AIR 1935 All 517 : (1935) AWR 300 : 157 Ind. Cas. 1049; Ela Buksh, sup; Panchoo, 29 C 455; Ramdhani, A 1935 P 421; Kanwal, 25 Cr LJ 91]. It would place all persons entirely at the mercy of the police [Abdul Khan 10 Cal WN 1027, sup]. Surety should not be rejected on personal knowledge of Magistrate [Piru Abdullah, sup; Ela Buksh 1971 14 Cal WN 709], or on hearsay evidence of repute [Sheopal, 1922 O 227]. [s 121.5] Test of competence.— It has been generally held that pecuniary test is the primary test, i.e., possession of sufficient means for realisation of the amount [Abinash, 4 Cal WN 797; Ram Pd, 6 Cal WN 593; Adam, 35 C 400; Kalu Mirza, up; Jafar Ali, 37 C 446; Rayon, 43 C 1024; Jiva Natha, 16 Bom LR 138, Jesha 1919 ILR 44 Bom 385; Joylal, AIR 1928 P 374]. In Allahabad, more stress has been laid on the ability to exercise proper control over the person [Rahim Baksh, 20 A 206; Nabbu, 24 A 471; Narain Sahai v Emperor, AIR 1946 All 333 (FB) : (1946) 47 Cr LJ 757 : 1946 All WR 141] and also in a few cases in Calcutta [Asiraddi, 41 C 764; Abdul Karim, 44 C 764; Jalil, 13 Cal WN 80]. But in any case arbitrary or unreasonable conditions and limitations should not be imposed [Narain, 22 WR 37; Jhojha, 24 C 155], e.g., that the surety should live in the same village as the principal or in a place not very far [Yesu, 1 Bom LR 520; Adam, 35 C 400; Raghunandan, 23 Cr LJ 400 : AIR 1922 A 489; Panchu, 23 Cr LJ 425; Md. Baksh, 25 Cr LJ 796; Rameshwar, AIR 1923 O 165], or should not be a relative [Mahabir, 14 ALJ 25; Abdul Khan, sup], or friend [Gobardhan, 16 ALJ 280], or that he is already a surety for another person [Ghisa, 24 Cr LJ 517], or that he was witness for the accused [Bairagi, 15 Cr LJ 727; Md. Wasi, 22 Cr LJ 22], or was merely convicted of an offence like assault [Budhu Ahir, 25 Cal WN 140 : AIR 1921 Cal 356 : 62 Ind. Cas. 179; Raghunath, 26 A 189], or that the surety should be a particular person, for that person may refuse [Mahabir, 16 ALJ 280]. A relation is more suitable [Shib Singh, 25 A 131; Md. Wasi, 22 Cr LJ 22]. See ante, notes to section 111. [s 121.6] Appeal.— Lies against acceptance or refusal of surety (section 373). End of Document

[s 122] Imprisonment in default of security.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER VIII SECURITY FOR KEEPING THE PEACE AND FOR GOOD BEHAVIOUR

The Code of Criminal Procedure, 1973 CHAPTER VIII SECURITY FOR KEEPING THE PEACE AND FOR GOOD BEHAVIOUR [s 122] Imprisonment in default of security.— (1) (a) If any person ordered to give security under section 106 or section 117 does not give such security on or before the date on which the period for which such security is to be given commences, he shall, except in the case next hereinafter mentioned, be committed to prison, or, if he is already in prison, be detained in prison until such period expires or until within such period he gives the security to the court or Magistrate who made the order requiring it. (b) If any person after having executed a 13[bond, with or without sureties] for keeping the peace in pursuance of an order of a Magistrate under section 117, is proved, to the satisfaction of such Magistrate or his successor-in-office, to have committed breach of the bond, such Magistrate or successor-in-office may, after recording the grounds of such proof, order that the person be arrested and detained in prison until the expiry of the period of the bond and such order shall be without prejudice to any other punishment or forfeiture to which the said person may be liable in accordance with law. (2) When such person has been ordered by a Magistrate to give security for a period exceeding one year, such Magistrate shall, if such person does not give such security as aforesaid, issue a warrant directing him to be detained in prison pending the orders of the Sessions Judge and the proceedings shall be laid, as soon as conveniently may be, before such court. (3) Such court, after examining such proceedings and requiring from the Magistrate any further information or evidence which it thinks necessary, and after giving the concerned person a reasonable opportunity of being heard may pass such order on the case as it thinks fit: Provided that the period (if any) for which any person is imprisoned for failure to give security shall not exceed three years. (4) If security has been required in the course of the same proceeding from two or more persons in respect of any one of whom the proceedings are referred to the Sessions Judge under sub-section (2), such reference shall also include the case of any other of such persons who has been ordered to give security, and the provisions of sub-sections (2) and (3) shall, in that event, apply to the case of such other person also, except that the period (if any) for which he may be imprisoned, shall not exceed the period for which he was ordered to give security. (5) A Sessions Judge may in his discretion transfer any proceedings laid before him under sub-section (2) or sub-section (4) to an Additional Sessions Judge or Assistant Sessions Judge and upon such transfer, such Additional Sessions Judge or Assistant Sessions Judge may exercise the powers of a Sessions Judge under this section in respect of such proceedings.

Page 2 of 4 [s 122] Imprisonment in default of security.— (6) If the security is tendered to the officer in charge of the jail, he shall forthwith refer the matter to the court or Magistrate who made the order, and shall await the orders of such court or Magistrate. (7) Imprisonment for failure to give security for keeping the peace shall be simple. (8) Imprisonment for failure to give security for good behaviour shall where the proceedings have been taken under section 108, be simple, and, where the proceedings have been taken under section 109 or section 110, be rigorous or simple as the court or Magistrate in each case directs. [s 122.1] Changes.— Section 122 corresponds to the old section 123 with the following changes:

(1) Old sub-section (1) has been renumbered as clause (a) of sub-section (1) and a new clause (b) has been added to provide for consequences of the breach of bond without sureties for keeping the peace. Clause (b) was added in Lok Sabha. (2) In sub-section (2) the words “or, if such Magistrate is a Presidency Magistrate, pending the orders of the High Court” after “Sessions Judge” have been omitted. (3) In sub-section (3) certain words have been added in order to give the person concerned an opportunity of being heard before the order is passed. (4) Old sub-sections (3A), (3B), (4), (5) and (6) have been renumbered as sub-sections (4), (5), (6) and (7), respectively, and in renumbered sub-section (4) the words “or the High Court” after “Sessions Judge” have been omitted. [s 122.1.1] Criminal Procedure Code (Amendment) Act, 2005 (25 of 2005) .— In section 122 of the Principal Act, in sub-section (1), in clause (b), for the words “bond without sureties”, the words bond, with or without sureties”, shall be substituted.

Notes on Clauses

This clause seeks to amend sub-section (1) of section 122 to remove the discrepancy between section 107(1) and section 122(1)(b) of the Code. (Notes on clauses, clause 15)

This amendment has come into force with effect from 23 June 2006 vide Notification No. S.O. 923(E), dated 21 June 2006. [s 122.2] Scope and application of section 122.— The order for security has to specify—(1) the period for security; (2) the date on which the period is to commence, and (3) the date by which the security is to be furnished. If there is omission to specify the last date, it can be remedied by a fresh order [Baso Rai v KingEmperor, AIR 1948 Pat 84 : (1947) 48 Cr LJ 409 : 229 IC 474]. If security is not furnished by that date, this section comes into operation and another order is to be made. If security is given, the section does not apply [Rai Isri, 23 C 621, 627]. To pass an order under section 122, there must be an actual failure to give security. So in the same order for security, an order cannot be passed that in default of furnishing security accused shall go to prison [Ibraya, 51 M 178; Rangi, AIR 1936 Nag 265 : 167 Ind. Cas. 403]; but only the direction for imprisonment is invalid and not the whole order [Baso Rai v KingEmperor, AIR 1948 Pat 84 : (1947) 48 Cr LJ 409 : 229 IC 474]. Detention under section 122 does not contravene Article 22 (4) of the Constitution of India [Jit Bahadur Singh v State, AIR 1953 All 753 : 1953 Cr LJ 1759 : 1953 All LJ 438; Shk Kalesha, AIR 1937 AP 268 ; Mannava Venkayya v Kanneganti China Punnaiha, AIR 1957 AP 90 : 1957 Cr LJ 624 : 1956 Andh LT 745 : 1956 Andh WR 485; In re: Seetharaman, AIR 1956 Mad 292 : 1956 Cr LJ 750 : 1956 (1) Mad LJ 232].

Page 3 of 4 [s 122] Imprisonment in default of security.—

The penalty for failure to furnish security is imprisonment under sub-section (1). No person thus imprisoned can be detained there, if he furnishes security thereafter [Rangi, sup]. A person to whom time was extended for giving security was imprisoned for failure to do so after the expiry of the period for which security was to remain in force. The order was illegal [Muthu Goundan, 10 Cr LJ 481].

Accused was convicted under Kerala Abkari Act but on appeal sentence of imprisonment alone was suspended. Accused expressed his inability to deposit fine amount of Rs. 1 lac in view of his meager income. It was held that the court may allow him to furnish security instead of insisting for payment of fine in pending appeal [Ratnakaran v State, 2007 Cr LJ 1488 ]. [s 122.3] Person undergoing imprisonment.— If the person is already undergoing imprisonment, no order under this section can be passed until the expiry of that term [Rangya, 4 Bom LR 934; NanaRamji, AIR 1926 B 525; Chinnasami, 16 Cr LJ 272; see however The Hlaing, 7 Cr LJ 472]. If a person imprisoned under section 122 is subsequently convicted of an offence, the sentence for that offence commences at once as an order under this section does not amount to an imprisonment under section 427 [Muthu Komaran, 27 M 525; Joghi, 31 M 515; Vishnu, 37 B 178; Shk Babu, 33 O 1036—Contra; Tulu Khan, 30 A 334 FB]. See however, now the proviso to section 427(1). [s 122.4] Duration.— “Until, such period expires” in sub-section (1) indicates that the period of imprisonment should be the same as the period for which security was ordered [Karimuddin, 23 A 422; Khusi Md., A 1930 L 49]. If the Magistrate desires the period to be less, resort should be had to section 142 (2) [Moti Ratanlal, UCC 668]. The order should state a definite period and not “until security is given” [Mailamdi, 8 C 644]. But as the person is entitled to be released the moment security is furnished, the order should run: “For one year or until such date within that year as the required security be furnished” [Ibraya, 51 M 178]. [s 122.5] Sub-section (1)(a).— It applies when a person has been ordered to give security for a period not extending one year. The words “detained in prison” seem to suggest that in the case contemplated no warrant is needed as in sub-section (2) and the imprisonment which he is undergoing shall continue. [s 122.6] Sub-section (1)(b).— In section 122 (1) clause (b) was introduced in the course of debate on the Bill by an amendment in the Lok Sabha. Its placing is likely to create some confusion, because while section 122 (1)(a) and section 122(2) are concerned with failure to furnish a bond (with or without sureties). Section 122 (1)(b) deals with a totally different situation, namely of non-compliance with a bond already furnished. It should really come as a separate section. It does not even harmonise with the marginal note to section 122(b), which reads as under— [s 122.7] “Imprisonment in default of security”.— Further the insertion of section 122(1) (b) renders the words “When such person” in section 122(2) not very happy. Actually section 122(2) relates back only to the person referred to in section 122(1)(a). [s 122.8] Sub-sections (2) and (3)—[Powers of Sessions Judge].— Sub-section (2) comes into play when the period is more than a year and no security has been given. If security has been given, no reference to Sessions Judge is necessary [Rai Isri, 23 C 621, 627; Ram Kishen, 40 A 39; The State v Sheikh Wahid, AIR 1957 Pat 563 : 1957 Cr LJ 1167 : 1957 BLJR 65 ]. On failure to give security, the Magistrate cannot as in sub-section (1) order imprisonment absolutely or conditionally subject to confirmation [Nanku, 11 Cr LJ 637]; but he can only detain the person pending the order of the Sessions Court to which the proceedings are submitted [Haridas, 1891 AWN 219; Myat Aung, 7 Cr LJ 412; Sundar, 21 Cr LJ 623; Ali Md., AIR 1945 SC 55 ; Qamardin, AIR 1922 Lah 475 : 67 Ind. Cas. 726; Mangal, 28 Cr LJ 657].

Section 373 does not apply when proceedings are laid before the Sessions Judge under sub-sections (2) or (4) [section 373]. Notice must be given to the person or his pleader [Jhajha, 23 C 493; Nakhi, 27 C 656; Girand, 25 A 375; Mangal, 28 Cr LJ 657] and the judge is bound to hear the pleader [Nakhi, sup; Jhojha, sup; Abinash, 4 Cal WN 797]. [s 122.9] Disposal on merits.—

Page 4 of 4 [s 122] Imprisonment in default of security.— The Sessions Judge has power to consider the evidence and dispose of the case on merits. He must come to an independent finding as to the propriety of the order and the period for surety without merely confirming the Magistrate’s order [Mangal, AIR 1928 Lah 189 : 103 Ind. Cas. 193; Gagan, 12 Cal WN 463; AmirBala, 35 B 271] and can if necessary “require from the magistrate” further evidence. It has been held that there can be no remand by the Sessions Judge for further inquiry. Such further evidence as he may require must be taken by himself [Jhojha, 24 C155, 156]. The order of the Sessions Judge is an original order [Haridas, 1891 AWN 219] and he has to pass a definite order binding over and not to confirm the Magistrate’s order [Bahadur, AIR 1925 Oudh 517 : 85 Ind. Cas. 944; see Mangal, AIR 1928 Lah 189 : 103 Ind. Cas. 193 sup]. The word “confirm” is misleading, nevertheless the order passed is the order of the Sessions Judge [Lashkaro, AIR 1937 SC 203 ]. In confirming an order, he is bound to find a special ground and it is not enough to say generally that in the interest of the community at large, the person should be bound over [Nakhi, 27 C 656]. The order should show that the case of each accused has been considered on its own merits and separately [Kalu Mirza, 37 C 91]. [s 122.10] Period of imprisonment.— It is advisable that the term of imprisonment in default should be the same as the period for security [Karimuddin, 23 A 422; Myat Aung, 7 Cr LJ 412]. The period should run from the date of the Magistrate’s order and not the Sessions Judge’s order [Allahdad, AIR 1924 SC 120 ; Balak, AIR 1931 Oudh 387 : (1932) ILR 7 LUCK 219; Kadu, AIR 1936 SC 125 ; Rasulbux, AIR 1942 Sindh 122 ]. The period of “detention in prison” pending order of the Sessions Judge is equivalent to imprisonment [Tula, 30 A 334 FB] though the Sessions Judge can direct that it should run from his order [Allahdad, sup; Rasulbux, sup].

The Sessions Judge cannot order a remand or re-hearing of the case [Jhojah, 24 C 155; Narayan, AIR 1925 Cal 191 : 81 Ind. Cas. 936], or a retrial after passing a fresh order under section 111 [Nim, AIR 1932 SC 88 ; Ali Md., AIR 1945 SC 55 ].

After an order is confirmed by the Sessions Judge, the testing of security is to be done not by him but by the Magistrate though there is an appeal to him [Narendra, A 1930 P 217 : 9 P 741; Azizur, 41 Cal WN 514— Contra Allahdino, 12 Cr LJ 410].

There is nothing in sub-section (3) to restrict the Sessions Judge’s power to give bail pending the hearing [Ahmed, 50 C 969; Rasulbux, AIR 1942 SC 122 ; Mangal, 28 Cr LJ 657]. [s 122.11] Sub-section (4).— The object is to avoid difference of opinion in a single case between the Magistrate and the Sessions Judge. Therefore, if the case of one accused has to be referred to, the case of all should be referred whether they have given security or not. [s 122.12] Sub-section (8).— In a section 110 case, rigorous imprisonment should not be given automatically. The section being preventive, ordinarily it should be simple, but discretion is to be exercised on the facts of each case [Gandharp, 42 A 563; Rangi, AIR 1936 Nag 265 : 167 Ind. Cas. 403]. Reason should be given for rigorous imprisonment [Umbica, 1 CLR 268]. Solitary confinement cannot be ordered [Kundan, 36 A 495].

Writ [see Balraj Madhok v UOI, AIR 1967 Del 31 : 1967 Cr LJ 865 ].

13

Substituted for the words “bond without sureties” by the Code of Criminal Procedure (Amendment) Act, 2005 (25 of 2005), section 15 (w.e.f. 23 June 2006 vide Notification No. SO 923(E), dated 21 June 2006).

End of Document

[s 123] Power to release persons imprisoned for failing to give security.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER VIII SECURITY FOR KEEPING THE PEACE AND FOR GOOD BEHAVIOUR

The Code of Criminal Procedure, 1973 CHAPTER VIII SECURITY FOR KEEPING THE PEACE AND FOR GOOD BEHAVIOUR [s 123] Power to release persons imprisoned for failing to give security.— (1) Whenever 14[the District Magistrate in the case of an order passed by an Executive Magistrate under section 117, or the Chief Judicial Magistrate in any other case] is of opinion that any person imprisoned for failing to give security under this chapter may be released without hazard to the community or to any other person, he may order such person to be discharged. (2) Whenever any person has been imprisoned for failing to give security under this chapter, the High Court or Court of Session, or, where the order was made by any other court, 15[District Magistrate, in the case of an order passed by an Executive Magistrate under section 117, or the Chief Judicial Magistrate in any other case,] may make an order reducing the amount of security or the number of sureties or the time for which security has been required. (3) An order under sub-section (1) may direct the discharge of such person either without conditions or upon any conditions which such person accepts: Provided that any condition imposed shall cease to be operative when the period for which such person was ordered to give security has expired. (4) The State Government may prescribe the conditions upon which a conditional discharge may be made. (5) If any condition upon which any person has been discharged is, in the opinion of 15[District Magistrate, in the case of an order passed by an Executive Magistrate under section 117, or the Chief Judicial Magistrate in any other case] by whom the order of discharge was made or of his successor, not fulfilled, he may cancel the same. (6) When a conditional order of discharge has been cancelled under sub-section (5), such person may be arrested by any police officer without warrant, and shall thereupon be produced before 15[District Magistrate, in the case of an order passed by an Executive Magistrate under section 117, or the Chief Judicial Magistrate in any other case.] (7) Unless such person gives security in accordance with the terms of the original order for the unexpired portion of the term for which he was in the first instance committed or ordered to be detained (such portion being deemed to be a period equal to the period between the date of the breach of the conditions of discharge and the date on which, except for such conditional discharge, he would have been entitled to release), 15[District Magistrate, in the case of an order passed by an Executive Magistrate under section 117, or the Chief Judicial Magistrate in any other case] may remand such person to prison to undergo such unexpired portion. (8) A person remanded to prison under sub-section (7) shall, subject to the provisions of section 122, be released at any time on giving security in accordance with the terms of the original order for the

Page 2 of 3 [s 123] Power to release persons imprisoned for failing to give security.— unexpired portion aforesaid to the court or Magistrate by whom such order was made, or to its or his successor. (9) The High Court or Court of Session may at any time, for sufficient reasons to be recorded in writing, cancel any bond for keeping the peace or for good behaviour executed under this chapter by any order made by it, and 16[District Magistrate, in the case of an order passed by an Executive Magistrate under section 117, or the Chief Judicial Magistrate in any other case] may make such cancellation where such bond was executed under his order or under the order of any other court in his district. (10) Any surety for the peaceable conduct or good behaviour of another person ordered to execute a bond under this chapter may at any time apply to the court making such order to cancel the bond and on such application being made, the court shall issue a summons or warrant, as it thinks fit, requiring the person for whom such surety is bound to appear or to be brought before it. [s 123.1] Changes.— Sub-sections (1) to (6) correspond to sub-sections (1) to (6) of the old section 124, sub-sections (7) and (8) corresponds to last two paras of section 124; sub-section (9) corresponds to the old section 125, and subsection (10) corresponds to the old section 126 with the following changes :

(1) In sub-sections (1), (5), (6) and (7) the words “Chief Judicial Magistrate” have been substituted for “District Magistrate or Chief Presidency Magistrate”. (2) In sub-section (2) the words “Chief Presidency or District Magistrate, may (unless the order has been made by some court superior to his own)” have been substituted. (3) In sub-section (9) the words “High Court or Court of Session” have been substituted for “Chief Presidency or District Magistrate” certain words have been inserted and the words “not superior to his Court” at the end have been omitted. [s 123.1.1] The changes effected are .— (1) The reference to District Magistrate and Chief Presidency Magistrate whenever it occurred has been replaced by reference to Chief Judicial Magistrate. See subsequent amendment by 1978 Amendment Act. In addition, the power to reduce the amount of security or the number of sureties or the time for which the security has been required to cancel the bond has been conferred on the High Court and Court of Session in respect of the orders made by them.

(2) Under sub-section (10) power to discharge sureties has been vested in the court which ordered to execute the bond. [s 123.1.2] 1978 Amendment .— In sub-sections (1), (2), (5), (6), (7) and (9) the words and figures “the District Magistrate in the case of an order passed by an Executive Magistrate under section 117, or the Chief Judicial Magistrate in any other case” have been substituted for the words “the Chief Judicial Magistrate” to empower the District Magistrate to release persons imprisoned for failure to give security in cases ordered by an Executive Magistrate. [s 123.2] Scope and application of section 123—[Sub-sections (1) to (8)].— These sub-sections deal with discharge of persons jailed for failure to give security and modification of the original order in respect of them by reducing the amount or number of sureties or shortening the period according to the discretion and circumstances. Order of discharge can be passed only when it is considered safe to release without hazard to the community. As regards modification of the original orders, while High Court and the Court of Session have been empowered with regard to the orders passed by them the district Magistrate or the Chief judicial Magistrate, as the case may be, has been empowered with regard to the orders passed by any other court in his district. The discharge may be on conditions or without conditions. If there is breach of the condition, the discharge may be cancelled and the person may be called upon to furnish securities for the unexpired term. Sub-section (3) is intended to enable persons to be sent to industrial homes or like establishment for reformation.

Page 3 of 3 [s 123] Power to release persons imprisoned for failing to give security.—

The order passed under the section may be of an original or revisional character [Mane Gowd, 37 M 125, 141, FB]. It is the district or the Chief Judicial Magistrate, as the case may be, who is to decide when it would be safe to act under the section. A superior court cannot direct him to take action [Chotia, 1893 AWN 183; Abdur Rahim, 2 Cr LJ 335; Mare Gowal, sup]. [s 123.3] Sub-section (9).— This provision empowers (i) the High Court and the Court of Session to cancel the bonds ordered to be executed by them, and (ii) the District Magistrate, in the case of an order passed by an Executive Magistrate under section 117, or the Chief Judicial Magistrate in any other case, to cancel the bonds ordered to be executed by any other court in a district including his own court. [s 123.4] Sub-section (10).— This provision enables a surety to apply for discharge any time and has vested, this power of discharge in the very court which has ordered the bond to be taken. [Writ see section 122].

14

Substituted by the Code of Criminal Procedure (Amendment) Act, 1978 (45 of 1978), section 12(i) (w.e.f. 18 December 1978) for the words “the Chief Judicial Magistrate”.

15

Substituted by the Code of Criminal Procedure (Amendment) Act, 1978 (45 of 1978), section 12(ii) (w.e.f. 18 December 1978) for the words “Chief Judicial Magistrate”.

16

Substituted by the Code of Criminal Procedure (Amendment) Act, 1978 (45 of 1978), section 12(ii) (w.e.f. 18 December 1978) for the words “Chief Judicial Magistrate”.

End of Document

[s 124] Security for unexpired period of bond.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER VIII SECURITY FOR KEEPING THE PEACE AND FOR GOOD BEHAVIOUR

The Code of Criminal Procedure, 1973 CHAPTER VIII SECURITY FOR KEEPING THE PEACE AND FOR GOOD BEHAVIOUR [s 124] Security for unexpired period of bond.— (1) When a person for whose appearance a summons or warrant has been issued under the proviso to sub-section (3) of section 121 or under sub-section (10) of section 123, appears or is brought before the Magistrate or court, the Magistrate or court shall cancel the bond executed by such person and shall order such person to give, for the unexpired portion of the term of such bond, fresh security of the same description as the original security. (2) Every such order shall, for the purposes of sections 120 to 123 (both inclusive), be deemed to be an order made under section 106 or section 117, as the case may be. [s 124.1] Changes.— Section 124 corresponds to the old section 126A with the following changes:

(1) Old section 126A has been divided into sub-sections (1) and (2). (2) In sub-section (1) the word “him” before “the Magistrate” has been omitted. [s 124.2] Scope and application of section 124.— Section 124 deals with the procedure when a surety applies for his discharge under section 123(10) and when the Magistrate rejects a surety previously accepted under the proviso to section 121(3). Discharge of surety (section 444). As a person has the right to discontinue as surety, the Magistrate is bound to cancel his bond. If no fresh security is given, the principal will be imprisoned under section 122(1). If the period exceeds one year, it must be referred to the Sessions Judge [Allahadino, 12 Cr LJ 410]. Appeal see section 373(i). End of Document

[s 125] Order for maintenance of wives, children and parents.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER IX ORDER FOR MAINTENANCE OF WIVES, CHILDREN AND PARENTS

The Code of Criminal Procedure, 1973 CHAPTER IX ORDER FOR MAINTENANCE OF WIVES, CHILDREN AND PARENTS [s 125] Order for maintenance of wives, children and parents.— (1) If any person having sufficient means neglects or refuses to maintain— (a) his wife, unable to maintain herself, or (b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or (c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or (d) his father or mother, unable to maintain himself or herself, a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate 1[* * *], as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct: Provided that the Magistrate may order the father of a minor female child referred to in clause (b) to make such allowance, until she attains her majority, if the Magistrate is satisfied that the husband of such minor female child, if married, is not possessed of sufficient means. 2[Provided

further that the Magistrate may, during the pendency of the proceeding regarding monthly allowance for the maintenance under this sub-section, order such person to make a monthly allowance for the interim maintenance of his wife or such child, father or mother, and the expenses of such proceeding which the Magistrate considers reasonable, and to pay the same to such person as the Magistrate may from time to time direct: Provided also that an application for the monthly allowance for the interim maintenance and expenses for proceeding under the second proviso shall, as far as possible, be disposed of within sixty days from the date of the service of the notice of application to such person.] Explanation.— For the purposes of this chapter, (a) “minor” means a person who, under the provisions of the Indian Majority Act, 1875 (9 of 1875) is deemed not to have attained his majority;

Page 2 of 82 [s 125] Order for maintenance of wives, children and parents.— (b) “wife” includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried. 3[(2) Any such allowance for the maintenance or interim maintenance and expenses for proceeding shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance or interim maintenance and expenses of proceeding, as the case may be.] (3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole or any part of each month’s 4[allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be,] remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made: Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the court to levy such amount within a period of one year from the date on which it became due: Provided further that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing. Explanation.—If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wife’s refusal to live with him. (4) No wife shall be entitled to receive an 5[allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be,] from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent. (5) On proof that any wife in whose favour an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order. [s 125.1] STATE AMENDMENTS IN SECTION 125 Madhya Pradesh.—I. The following amendments were made by Madhya Pradesh Act 10 of 1998, section 3 (with effect from 29 May 1998).

In its application to the State of Madhya Pradesh, in section 125, sub-section (1), for the words “five hundred rupees”, substitute “three thousand rupees”.

[Note: This State amendment was made prior to the enactment of Code of Criminal Procedure (Amendment) Act, 2001 (Central Act 50 of 2001) by which the words “not exceeding five hundred rupees in the whole” have been omitted (See section 2, The Code of Criminal Procedure (Amend-ment) Act, 2001 (with effect from 24 September 2001)].

II. In its application to the State of Madhya Pradesh, the following amendments were made in section 125 by Madhya Pradesh Act 15 of 2004, section 3 assented on 26 November 2004 by the President and Published in the Madhya Pradesh Gazette (Extraordinary) dated 6 December 2004.

for the marginal heading, the following marginal heading shall be substituted, namely:—

Order for maintenance of wives, children, parents and grand parents.

Page 3 of 82 [s 125] Order for maintenance of wives, children and parents.—

(ii) In sub-section (1),—

(a) After clause (d), the following clause shall be inserted, namely:— “(e) his grand father, grand mother unable to maintain himself or herself.”;

(b) In the existing para, for the words “a magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate not exceeding three thousand rupees in the whole, as such magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct”, the words “a Magistrate of the first class may upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father, mother, grand father, grand mother at such monthly rate, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct” shall be substituted; (c) After the existing first proviso, the following proviso shall be inserted, namely:— Provided further that the relatives in clause (e) shall only be entitled to monthly allowance for maintenance, if their sons or daughters are not alive and they are unable to maintain themselves.

Maharashtra.—The following amendments were made by Maharashtra Act 21 of 1999, section 2 (with effect from 20 April 1999).

In its application to the State of Maharashtra, in section 125,—

(a) in sub-section (1),—

(i)

for the words “not exceeding five hundred rupees”, substitute “not exceeding fifteen hundred rupees”;

(ii) before the existing proviso, insert the following proviso, namely:— Provided that, the Magistrate on an application or submission being made, supported by an affidavit by the person who has applied for the maintenance under this sub-section, for payment of interim maintenance, on being satisfied that, there is a prima facie ground for making such order, may direct the person against whom the application for maintenance has

Page 4 of 82 [s 125] Order for maintenance of wives, children and parents.— been made, to pay a reasonable amount by way of interim maintenance to the applicant, pending the final disposal of the maintenance application: Provided further that, such order for payment of interim maintenance may, in an appropriate case, also be made by the Magistrate ex parte, pending service of notice of the application, subject, however, to the condition that such an order shall be liable to be modified or even cancelled after the respondent is heard in the matter: Provided also that, subject to the ceiling laid down under this sub-section, the amount of interim maintenance shall, as far as practicable, be not less than 30 % of the monthly income of the respondent.;

(iii) in the existing proviso, for the words “Provided that”, substitute “Provided also that”; (b) after sub-section (2), insert the following sub-section, namely:—

(2-A) Notwithstanding anything otherwise contained in sub-sections (1) and (2), where an application is made by the wife under clause (a) of sub-section (1) for the maintenance allowance, the applicant may also seek relief that the order may be made for the payment of maintenance allowance in lumpsum in lieu of the payment of monthly maintenance allow-ance, and the Magistrate may, after taking into consideration all the circumstances obtain-ing in the case including the factors like the age, physical condition, economic conditions and other liabilities and commitments of both the parties, pass an order that the respondent shall pay the maintenance allowance in lumpsum in lieu of the monthly maintenance al-lowance, covering a specified period, not exceeding five years at a time, or for such period which may exceed five years, as may be mutually agreed to, by the parties.;

(c) in sub-section (3),— (i)

after the words “so ordered”, insert “either under sub-section (1) or sub-section (2-A), as the case may be,”;

(ii) after the words “each month’s allowance”, insert “or, as the case may be, the lumpsum allowance to be paid in lieu of the monthly allowance”.

Rajasthan.—The following amendments were made by Rajasthan Act 3 of 2001, section 2.

In its application to the State of Rajasthan, in section 125, sub-section (1), for the words “five hun-dred” occurring after the words “at such monthly rate not exceeding” and before the words “rupees in the whole”, substitute “two thousand five hundred”.

Tripura.—The following amendments were made by Tripura Act 9 of 1999, section 2 (with effect from. 9 April 1999).

Page 5 of 82 [s 125] Order for maintenance of wives, children and parents.— In its application to the State of Tripura, in section 125, sub-section (1), for the words “five hun-dred rupees”, substitute “one thousand five hundred rupees”.

Uttar Pradesh.—The following amendments were made by Uttar Pradesh Act 36 of 2000, sec-tion 2 (with effect from 13 August- 2001).

In its application to the State of Uttar Pradesh, in section 125,—

(a) in sub-section (1), for the words “five hundred rupees”, substitute “five thousand rupees”; (b) after sub-section (5), insert the following sub-section, namely:—

(6) Where in a proceeding under this section it appears to the Magistrate that the person claiming maintenance is in need of immediate relief for his support and the necessary ex-penses of the proceeding, the Magistrate may, on his application, order the person against whom the maintenance is claimed, to pay to the person claiming the maintenance, during the pendency of the proceeding such monthly allowance not exceeding five thousand ru-pees and such expenses of the proceeding as the Magistrate consider reasonable and such order shall be enforceable as an order of maintenance.

West Bengal.—The following amendments were made by the CrPC (West Bengal Amendment) Act, 1992 (W.B. Act No. XXV of 1992), dated 22 April 1993 (with effect from 2 August-1993).

Section 125(1).—In sub-section (1) of section 125 of the principal Act,—

(1) for the words “five hundred rupees”, the words “6 [* * *]” shall be substituted; (2) after the existing proviso, the following proviso shall be inserted:—

Provided further that where in any proceeding under this section it appears to the Mag-istrate that the wife referred to in clause (a) or the minor child referred to in clause (b) or the child (not being a married daughter) referred to in clause (c) or the father or the mother referred to in clause (d) is in need of immediate relief for her or its or his support and the necessary expenses of the proceeding, the Magistrate may, on the application of the wife or the minor child or the child (not being a married daughter) or the father or the mother, as the case may be, order the person against whom the allowance for maintenance is claimed, to pay to the petitioner, pending the conclusion of the proceeding, the expenses of the proceeding, and monthly during the proceeding such allowance as, having regard to the income of such person, it may seem to the Magistrate to be reasonable.

Page 6 of 82 [s 125] Order for maintenance of wives, children and parents.—

COMMENTS [s 125.2] Changes.— Sub-sections (1) to (5) corresponds to sub-sections (1) to (5) of the old section 488 with the following changes:

(1) In sub-section (1) clauses (a) to (d) have been substituted for the words “his wife or his legitimate or illegitimate child unable to maintain itself”, after that the words “the District Magistrate, a Presidency Magistrate, or a sub-divisional Magistrate or” have been omitted and other italicised words including the proviso and Explanation have been newly added. (2) In sub-section (3) second proviso has been placed over first proviso, the word Explanation has been added and the word “woman” has been substituted for “wife”.

Briefly stated, the principal changes introduced are:

(1) In the case of wife, the order can be passed only if she is unable to maintain herself [section 1 (a)]. (2) The benefit of the provision has been extended to a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried [c1ause (b) to Explanation in sub-section (1)]. (3) Only minor children, legitimate or illegitimate, whether married or not come under the purview of this section with a proviso that in case of a minor married daughter, order can be passed on the father if the husband of the minor female child is not possessed of sufficient means [section 1(b) and proviso]. (4) In case of a major child, legitimate or illegitimate, other than a married daughter the liability arises only when the child is by reason of physical or mental abnormality or injury unable to maintain itself [section 1(c)]. (5) The benefit has also been extended to parents who are unable to maintain themselves [section 1(d)]. [s 125.2.1] Code of Criminal Procedure (Amendment) Act, 2001 .— Prior to the enactment of this Amendment Act many State Legislatures had already passed State Amendments to section 125(1) of the Code of Criminal Procedure thus enhancing the maximum maintenance amount which could be granted under section 125 from Rs. 500/- per month to a higher figure [see also Manoj Yadav v Pushpa, AIR 2011 SC 614 : (2010) 15 SCC 287]. The Code of Criminal Procedure (Amendment) Act (50 of 2001) has abolished the upper limit of maintenance of Rs. 500/- per month provided in chapter IX of the Code. The Statement of Objects and Reasons appended to the Bill states:

The ceiling of rupees five hundred per month for maintenance allowance was prescribed in the year 1955 in section 488 of the Code of Criminal Procedure, 1898. A ceiling of rupees five hundred was prescribed in section 125 of the Code of Criminal Procedure, 1973 on the lines of section 488 of the Code of Criminal Procedure, 1898 which has since been repealed. In view of the cost of living index centrally rising, retention of a maximum ceiling is not justified. If a ceiling is prescribed retained, it would require periodic revision taking into account the inflation and rise in the cost of living as well as amendment of provisions of the Act from time to time. This would necessarily be time consuming.

Page 7 of 82 [s 125] Order for maintenance of wives, children and parents.— Accordingly, it is also proposed to amend section 125 and make consequential changes in section 127 of the Code of Criminal Procedure to remove the ceiling of maintenance allowance.

This Amendment Act also makes a provision for interim maintenance as well as recovery of expenses of proceedings. The amended section provides that the Magistrate may order the respondent to make a monthly allowance for the interim maintenance of his wife, child, father or mother during the pendency of the proceeding regarding monthly allowance for the maintenance. The expenses of proceedings can also be claimed by the applicant under the amended provisions of chapter IX of the Code. The amended section also provides that an application for interim maintenance and expenses of proceeding shall be disposed of, as far as possible, within sixty days from the service of notice of such application to the respondent. The Statement of Objects and Reasons appended to the Bill provides:

It has been observed that an applicant, after filing application in a Court under section 125 of the Code of Criminal Procedure, 1973, has to wait for several years for getting relief from the Court. It is, therefore, felt that express provisions should be made in the said Code for interim maintenance allowance to the aggrieved person under said section 125 of the Code. Accordingly, it is proposed that during the pendency of the proceedings, the Magistrate may order payment of interim maintenance allowance and such expenses of the proceedings as the Magistrate considers reasonable, to the aggrieved person. It is also proposed that this order be made ordinarily within sixty days from the date of the service of the notice.

[s 125.3] Scope and application of section 125.— The section provides a swift and cheap remedy against any person who, despite means, neglects or refuses to maintain (a) his wife which includes a woman after divorce who has not remarried, unable to maintain herself; (b) his minor child, legitimate or illegitimate, unable to maintain itself, the liability in case of minor married daughter arising only when the husband is not possessed of sufficient means and until she becomes major; (c) his major child, legitimate or illegitimate (excepting married daughter) unable to maintain itself owing to any physical or mental abnormality or injury; (d) his father or mother unable to maintain himself or herself. Emphasis has been laid in all cases on the “inability to maintain” because the primary object of the section is to prevent starvation and vagrancy. A major married daughter has been wholly excluded from the operation of this section as the responsibility of maintaining her should be on her husband. Nature, scope and object stated [SS Manickam Aruptha Bhavani Rajam, 1980 Cr LJ 354 : 1979 Mad LW (Cri) 143 : 1980 Mad LJ (Cri) 327 (Mad)].

According to the MP High Court, the word “may” shows that the husband is not bound to maintain the wife in all circumstances. The wife has no absolute right to maintenance [Manubhai v Sukhdeo, 1990 Cr LJ 646 : 1989 MPLJ 433 (MP) (KL Srivastava, J.)].

The proceedings in the Civil Court are substantial, whereas the proceedings under section 125 of the Criminal Procedure Code, 1973 are of a summary nature. Once the Civil Court of competent jurisdiction comes to the conclusion that the wife is not entitled to maintenance, the Criminal Court under section 125, cannot sit in appeal over the said decision. This itself, without anything more, is sufficient to set aside the impugned order of maintenance in favour of the wife. Even section 127(2) of the Code of Criminal Procedure, 1973 contemplates cancellation of the order passed under section 125, after the decision of the Civil Court [Murlidhar Chintaman Waghmare v Pratibha Mulidhar Waghmare, 1986 Cr LJ 1216 : 1985 Mah LJ 958 : (1986) (1) Bom CR 358 : (1985) 87 Bom LR 561 Bom].

An order under section 125 of Code of Criminal Procedure, 1973 is tentative and is subject to final determination of rights by Civil Court [Inderjit Kaur v UOI, 1990 SCC (Cr) 132 : (1990) 1 SCC 344 (345); Ramakrishnan v CN Subadra, 2007 Cr LJ 4212 (4214) : 2007 (2) Ker LJ 442 (Ker)].

Page 8 of 82 [s 125] Order for maintenance of wives, children and parents.— Power to order maintenance has been vested in Judicial Magistrate of first class which means also Metropolitan Magistrate in metropolitan areas, as the functions are of judicial character. The order shall contain the points for determination, the decision thereon and the reasons for the decision [see section 354(6)].

While awarding maintenance from the date of order or from the date of application, the court should record reasons in support of order passed by it, in both of the eventualities. [Jaiminiben Hirenbhai Vyas v Hirenbhai Rameshchandra Vyas, AIR 2015 SC 300 ]. [s 125.4] Object and interpretation.— It is a measure of social justice falling within the constitutional sweep of Articles 15(3) and 39 enacted to protect the weaker sections like women and children [Ramesh Chander Kaushal v Veena Kaushal, AIR 1978 SC 1807 : 1979 Cr LJ 3 : (1978) 4 SCC 70 (SC)], a secular safeguard irrespective of the personal laws of the parties [Fuzlunbi v K Khader Vali, AIR 1980 SC 1730 : 1980 Cr LJ 1249 : (1980) 4 SCC 125 (SC); Nanakchand Chandra Kishore Agarwala, AIR 1970 SC 446 : 1970 Cr LJ 522 : (1969) 3 SCC 802 : (1970) 1 SCJ 176 ; Savitaben Samabhai Bhatiya v State of Gujarat, (2005) 3 SCC 636 : (2005) 2 Crimes 1 (SC) : AIR 2005 SC 1809 : 2005 Cr LJ 2141 ; R Manjunath v Smt. Pushwa, 2007 Cr LJ (NOC) 923 ].]. The object is to compel a man to perform the moral obligation which he owes to society in respect of his wife and children (now parents also) so that they are not left beggared and destituted on the scrap-heap of society and thereby driven to a life of vagrancy, immorality and crime for their subsistence. The jurisdiction of the Magistrate is preventive and not remedial and certainly not punitive. The scope is limited and orders passed by the court, as section 127 (2) expressly provides, are subject to any final adjudication by a Civil Court regarding status and civil rights [Bhagwan Dutt v Kamala Devi, AIR 1975 SC 83 : 1975 (1) SCJ 143 : 1975 Cr LJ 40 : (1975) 2 SCC 386 (SC) See also Ranjana Shivaji v Rakhpasare, 2004 Cr LJ 145 (150) (Bom) : 2004 (2) DMC 365 : 2003 All MR (Cri) 2430]. Having a social purpose, section 125 and its sister clauses in their interpretation must receive a compassionate expanse of the sense that the words permit [Ramesh Chander Kasushal v Veena Kaushal, AIR 1978 SC 1807 : 1979 Cr LJ 3 : (1978) 4 SCC 70 (SC) sup; Bai Tahira v Ali Hussain Fissalli Chothia, AIR 1979 SC 362 : 1979 Cr LJ 151 : (1979) 2 SCC 316 ]. In this generous jurisdiction, a broader perception and appreciation of facts and their bearing must govern the verdict not chopping little logic or tinkering with burden of proof [Bai Tahira, sup]. The object of the section is to prevent destitution on public grounds and vagrancy [Parapatti, 1919 M 193; Fakruddin, 9 B 40; Kumli, AIR 1925 A 73; Nagendramma, AIR 1954 M 714]. Section 125 provides only a speedy remedy against starvation of a deserted wife or child or indigent parents. It is a summary procedure which does not cover entirely the same grounds as the civil liability of a husband or father or son under his personal law to maintain his wife or child or parents. When substantial issues of civil law are raised, the remedy lies only in Civil Courts [Kandaswami, AIR 1926 Mad 346 : 92 Ind. Cas. 862 : (1926) 50 Mad LJ 44 : 1926 MWN 146; Md. Ali, AIR 1944 Lah 392 ; Ranchhoddas Narottamdas v Emperor, AIR 1949 Bom 36 : (1948) 49 Cr LJ 630 : 50 Bom LR 281; Bulteel, 1937 MWN 1127 ].

The concept of sustenance does not necessarily mean to lead the life of an animal, feel like an unperson to be thrown away from grace and roam for her basic maintenance somewhere else. She is entitled in law to lead a life in the similar manner as she would have lived in the house of her husband. That is where the status and strata come into play, and that is where the obligations of the husband, in case of a wife, become a prominent one. In a proceeding of this nature, the husband cannot take subterfuges to deprive her of the benefit of living with dignity. Regard being had to the solemn pledge at the time of marriage and also in consonance with the statutory law that governs the field, it is the obligation of the husband to see that the wife does not become a destitute, a beggar. A situation is not to be maladroitly created whereunder she is compelled to resign to her fate and think of life “dust unto dust”. It is totally impermissible. In fact, it is the sacrosanct duty to render the financial support even if the husband is required to earn money with physical labour, if he is able bodied. There is no escape route unless there is an order from the court that the wife is not entitled to get maintenance from the husband on any legally permissible grounds [Bhuvan Mohan Singh v Meena, AIR 2014 SC 2875 : 2014 Cr LJ 3979 (SC)].

The husband and wife lived blissfully for 10 years. The wife left matrimonial home without reasonable and sufficient reasons, despite husband’s best efforts, he was unable to persuade her to return. Wife is not entitled to maintenance consequent to her refusal to abide by decree of restitution of conjugal rights. [Smt Santosh Ramswaroop v Ramswaroop Ganeshlal, AIR 2017 (NOC) 252 (RAJ)].

Page 9 of 82 [s 125] Order for maintenance of wives, children and parents.— Section 125 prescribes a summary procedure. The findings are not final and the parties can agitate their rights in a Civil Court [Nandlal Misra v KL Misra, AIR 1960 SC 882 : 1960 Cr LJ 1246 : 1960 (3) SCR 431 ]. It is a distinct right independent of the right which the wife or child (or parents now) may or may not have under the personal law [Bhagwan Dutt v Kamala Devi, AIR 1975 SC 83 : 1975 Cr LJ 40 : (1975) 2 SCC 386 (SC); Luddon, 8 C 736; Kariyadan, 19 M 461; Lingappa, 27 M 13; Md. Azizullah, 36 Cr LJ 524; Mg Tin, 11 R 226, FB; Ranchhoddas Narttamdas v Emperor, AIR 1949 Bom 36 : (1948) 49 Cr LJ 630 : 50 Bom LR 281; Stella, AIR 1966 Mad 225 : (1965) ILR 1 Mad 614 : 1966 79 LW 45 ; Nataranjan, AIR 1926 Mad 261 : 95 Ind. Cas. 972 : 1925 22 LW 650 : 1926 MWN 73 ; Umar Hayat Khan v Mahaboobunnisa, 1976 Cr LJ 395 (2) (1975) Kant LJ 495 : 1975 Mad LJ (Cri) 570 (Kant); Khurshid Khan Amin Khan v Husnabanu, 1976 Cr LJ 1584 : 78 Bom LR 240 : 1976 Mah LJ 628 (Bom); Isak Chand Palkar v Nyamatbi, 1980 Cr LJ 1180 : 1980 Mah LJ 287 : 1980 CrLR (Mah) 466 (Bom)] and constitutionally valid [Iqbal Ahmed Khan v State of UP, 1980 Cr LJ (NOC) 80 (All)]. Hindu Adoptions and Maintenance Act, 1956 does not repeal or affect in any manner the provisions of section 125, the scope of two laws being different [Nanakchand Chandra Kishore Agarwala, AIR 1970 SC 446 : 1970 Cr LJ 522 : (1969) 3 SCC 802 (SC)]. So also Shariat Act, 1937 [Isak Chand Palkar v Nyamatbi, 1980 Cr LJ 1180 : 1989 Mah LJ 287 : 1980 CrLR (Mah) 466 (Bom)].

“This provision (sction 125, Code of Criminal Procedure, 1973) is a measure of social justice and specially enacted to protect women and children and falls within the Constitutional sweep as per Article 15(3) reinforced by Article39. We have no doubt that sections of statutes calling for construction by courts are not petrified print but vibrant words with social functions to fufil. The brooding presence of the Constitutional empathy for the weaker sections, like women and children, must inform interpretation if it has to have social relevance. So viewed, it is possible to be selective in picking out that interpretation out of two alternative which advance the cause—The cause of the derelicts” [Ramesh Chander v Veena, AIR 1978 SC 1807 : 1979 Cr LJ 3 . See also Rohtash Singh v Ramendri, AIR 2000 SC 952 : 2000 Cr LJ 1498 : (2000) 3 SCC 180 : 2000 (1) Crimes 293 ].

Section 125 of the Code is meant to achieve a social purpose. The object is to prevent vagrancy and destitution [Vimala (K) v Veeraswamy (K), (1991) 2 SCC 375 : 1991 (1) Scale 495 ; D Velusamy v D Patchaiammal, AIR 2011 SC 479 : (2010) 10 SCC 469 : 2010 (11) Scale 112 ].

Delay in adjudication by the Family Court is not only against human rights but also against the basic embodiment of dignity of an individual [Bhuvan Mohan Singh v Meena, AIR 2014 SC 2875 : 2014 Cr LJ 3979 (SC)].

Purposive interpretation needs to be given to the provisions of section 125 of Code of Criminal Procedure, 1973 while dealing with the application of destitute wife or hapless children or parents under this provision [Badshah v Urmila Badshah Godse, AIR 2014 SC 869 : (2014) 1 SCC 188 : 2013 (12) Scale 681 ].

Section 125 of the Code of Criminal Procedure is a piece of social legislation which provides for a summary and speedy relief by way of maintenance to a wife who is unable to maintain herself and her children. Section 125 is not intended to provide for a full and final determination of the status and personal rights of parties, which is in the nature of a civil proceeding, though are governed by the provisions of the Code of Criminal Procedure and the order made under section 125 of Code of Criminal Procedure, 1973 is tentative and is subject to final determination of the rights in a Civil Court [Nagendrappa Natikar v Neelamma, AIR 2013 SC 1541 : 2013 (3) Scale 561 : 2013 Cr LJ 2060 (SC)]. [s 125.5] State Amendments regarding quantum of maintenance.— Prior to the 2001 amendment of the Code of Criminal Procedure by Parliament, many State Legislatures had passed State Amendments of section 125(1) of Code of Criminal Procedure enhancing the maximum maintenance which could be granted from Rs. 500/- per month to a higher figure. Obviously, it was felt by those State Legislatures that Rs. 500/- per month is not sufficient. Hence, these State Amendments were made for the benefit of the women, because at that time, the 2001 Amendment had not been enacted by Parliament, and there was a maximum limit of Rs. 500/- per month in section 125(1) for grant as maintenance.

Page 10 of 82 [s 125] Order for maintenance of wives, children and parents.— The States which had made these State Amendments prior to the 2001 Amendment enhancing the maintenance from Rs. 500/- per month to a higher figure are the States of Madhya Pradesh, Maharashtra, Rajasthan, Tripura and Uttar Pradesh.

In view of the 2001 Amendment to the Code of Criminal Procedure by Parliament, the maximum maintenance prescribed by the above-mentioned State Legislatures are no longer valid in view of Article 254(1) of the Constitution, apart from being unconstitutional now as being violative of Articles 14 and 21 of the Constitution. [Manoj Yadav v Pushpa, 2011 Cr LJ 981 (982) : AIR 2011 SC 614 : (2010) 4 Crimes 345 (SC)]. [s 125.6] Concept of granting maintenance.— The whole concept of granting maintenance under the scheme as provided under section 125 which includes basically that: the opponent husband wilfully refused or neglected the claimant/wife; the claimant/wife is unable to maintain himself or herself, the other party/husband has sufficient means to pay the maintenance. Apart from this, the court further needs to consider the capacity and ability of the other party or husband to maintain her or him. The obligation of the husband considering the husband and wife relationship cannot be overlooked only because the wife failed to prove her case based on one incident of harassment. The overall assessment of the fact, surrounding circumstances and totality of the matter, is the foundation for such claim of the maintenance [Dnyandeo Dhakane v State of Maharashtra, 2006 Cr LJ 4581 (4584) (Bom)]. [s 125.7] Remedy independent of Marriage Act.— Remedy under section. 125 and under section 24 of Hindu Marriage Act are independent and not relevant to each other [Mohinder Kaur, 1990 (1) HLR 273 (P&H)]. In presence of decree of nullity under section 21(1)(e) of Hindu Marriage Act, wife is not entitled to maintenance under section 125 of Code. [Thulasi Bai, 1990 (1) HLR 318 . (Ker)]. Neither personal law nor other salvationary plea will hold against the policy of public law pervading section 125 and 127 [Fulzunbi K Khader Vali, AIR 1980 SC 1730 : 1980 Cr LJ 1249 : (1980) 4 SCC 125 (SC)]. Obligations under sections 125 and 127 being a statutory one and measure of social justice, no party can be permitted to contract himself out of such obligation [Damodaran, 1979 Ker LT 543 ]. The section does not offend against Article 14 or 15 of the Constitution, because there is no similar provision in favour of husbands [Thamsi Goundan v Kanni Ammal, AIR 1952 Mad 529 : 1952 Cr LJ 1143 : 1952 (1) Mad LJ 68 : 1952 Mad WN 55 : 65 Mad LW 439; Gupteshwar, AIR 1971 P 1811]. The power under the section is discretionary as the use of the word “may” indicates. A neglected wife cannot claim, as of right, an order of maintenance against the husband. Of course, the Magistrate has to exercise his discretion in a judicial manner consistently with the language of the statute with due regard to other relevant circumstances [Bhagwan Dutt v Kamla Devi, AIR 1975 SC 83 : 1975 Cr LJ 40 : (1975) 2 SCC 386 (SC)]. The Magistrate is not bound to order maintenance even if the husband could not establish any of the defences in sub-section (4) [Md. Ali, AIR 1944 L 392]. To direct a person to give maintenance to his ex-wife divorced on the ground of adultry is revolting to one’s sense of justice, while to deny maintenance to his ex-wife divorced on the ground of suffering from virulent disease would be unjust [Gopal Pillai, 1978 Ker LT 485 ].

Section 7 of the Muslim Women’s (Protection of Rights on Divorce) Act, 1986 is a transitional provision and it applies to the application by a divorced woman under sections 125 and 127 of the Code of Criminal Procedure, 1973. If the application by a divorced woman under sections 125 and 127 of Code of Criminal Procedure, 1973 is pending on the commencement of the Act, then such an application is required to be disposed of under the provisions of the 1986 Act. Section 7 is an overriding provision. To such a pending application, the provision of section 125 of Code of Criminal Procedure, 1973 would not apply and that application has to be disposed of in accordance with the provisions of the Act, subject to the provisions of section 5 of the Act, so far as section 4 is concerned, it may be stated that section 4 does not at all deal with the children claiming maintenance. Section 7 does not apply to the application moved on behalf of the children, who are minors and are unable to maintain themselves. [Hazi Farzand Ali v Noorjahan, 1988 Cr LJ 1421 : 1988 (2) Crimes 55 : 1988 Raj LW 179 : 1988 (1) Raj LR 96 (Raj)]. [s 125.8] Validity.— Section 125 is fully consistent with Article 15 (3) of the Constitution (Special Provision for Women). Article 39 also requires the State to direct the policy towards securing that the citizens, men and women equally, have the right to adequate means of livelihood, etc. [Balan Nair v Bhavani Amma Valsalamma, AIR 1987 Ker 110 : 1987 Cr LJ 399 : 1986 Ker LT 1387 : 1978 (1) Hindu LR 295 (FB)]. The remedies under section 24, Hindu Marriage Act, 1955 and section 125 of Code of Criminal Procedure, 1973, are concurrent and optional for the party

Page 11 of 82 [s 125] Order for maintenance of wives, children and parents.— entitled to avail himself of. They are remedial measures, intended to alleviate the hardships that may be caused to either spouse. Therefore, the mere possibility of availability of the remedy under section 24 does take away the jurisdiction under section 125. [Ajjarapu Surya Sriramachandra Murthy v Ajjarapu Tejo Satyasathimani, 1984 Cr LJ 439 : 1983 (2) APLJ 374 : 1984 (1) DMC 406 : 1984 Hindu LR 615 (AP)]. [s 125.9] Acquittal of accused under section 498A or section 406A—No bar to claim of maintenance.— There is no legal bar under sections 125 to 127 of Code of Criminal Procedure, 1973 to claim maintenance once a party has been acquitted under section 498A or 406 of Indian Penal Code, 1860. Dnyandeo Dhakane v State of Maharashtra, 2006 Cr LJ 4581 (4584) (Bom). [s 125.10] Personal law and Muslim women and children.— Section 125 is independent of personal law or custom governing the parties. It is a statutory right. However, where a Muslim woman has not exercised her option (to be governed by section 125), she cannot apply under section 125. [Rizwana Begum Ml v Mutiullah, 1989 Cr LJ, NOC 155 : (1989) 67 Cut LT 353 : 1989 East Cr C 397(Ori) : (1988) 18 Reports 359 (Ori)].

The Allahabad High Court has held that by virtue of section 4 of the Muslim Women Protection of Rights on Divorces Act and particularly the non-obstante clause therein, a Muslim woman loses her right to execute an order for maintenance under Code of Criminal Procedure, 1973 even if the order was passed before the commencement of the above mentioned Act. According to the High Court, though this may cause hardship, the purpose of the law must be carried to its logical end [Mohammad Yameed v State of UP, 1992 Cr LJ 1804 All : 1992 (1) Crimes 1257 : 1992 All LJ 593 (Palok Basu, J.)].

According to Calcutta High Court, it cannot be said that if the Muslim Women (Protection of Rights on Divorce) Act, 1986 is to be correctly interpreted, then the former husband of the divorced wife, and for that matter the father of the minor children, has no obligation to pay maintenance to the children beyond the period of two years from the date of their birth. The Act of 1986 took special care of the divorced women and at the same time made provisions for maintenance of the minor children till their attaining the age of 2 years. As no provision is made subsequent to that age in the Act of 1986, the mother as natural guardian of such unfortunate minor children shall have to fall back upon the all-embracing and beneficial provisions of section 125 of Code of Criminal Procedure, 1973 [Md. Murtaza v Kausar Parvin, 1991 Cr LJ 3202 : 1991 (2) Cal HN 119 (Cal) (Siba Prasad Rajkhote, J.)].

If a Muslim woman is maintaining children born to her before or later on her divorce, she would be regarded to be authorised for getting maintenance from her former husband for a period of two years but in such circumstances children’s right of claiming maintenance from his or her father would not be taken away [Noor Jehan v State of Maharashtra, 1995 Cr LJ 2154 (Bombay)].

Non-compliance with provisions of sections 5.3 of the Muslim Women Act does not nullify proceedings under section 125—Non-joinder of minor children is a mere irregularity [Abdul Majid v Kamrunnisa w/o Abdul Majid, 1990 Cr LJ 2799 M.P. High Court (KL Shrivastava J.)].

Divorced Muslim not entitled to claim maintenance under section 125 of Code of Criminal Procedure, 1973 after coming into force of Muslim Women (Protection of Rights on Divorce) Act, 1986 except as provided under section 5 of said Act of 1986. [Rukiya v Mohammed, 1997 Cr LJ 723 : ILR 1996 Kant 3254 : 1997 (1) DMC 251 (Kant)].

Section 125 does not apply to Muslims where the parties have not opted for it by a declaration made under section 5 of Muslim Women (Protection of Rights on Divorce, Act, 1986. [Patnam Vahedullah Khan v P Ashia Khatoon, 2000 Cr LJ 2124 : 2000 (3) Andh LT 571 : 2000 (2) DMC 427 (AP)].

Where Muslim husband had failed to prove Talaqnama and acknowledgement of sum of money received by wife on her being divorced and having settled all her claims against husband. In these circumstances, direction

Page 12 of 82 [s 125] Order for maintenance of wives, children and parents.— to pay Rs. 500/- to wife and Rs. 400/- to minor daughter per month as maintenance was held proper [Mohd. Siddique Ail v Mst. Fatema Rashid, 2007 Cr LJ 2363 (Gau) : AIR 2007 (NOC) 2037 ]. [s 125.11] Maintenance—Muslim women.— Merely taking plea of talaq in written statement or statement by husband before the court is not sufficient mode to prove talaq. Wife is entitled to maintenance [Kansarbi K Mulla v State of Maharashtra, AIR 2007 NOC 419 : 2007 (1) AIR Bom R 214 (Bom); see also Shamima Farooqui v Shahid Khan, 2015 (4) Scale 521 : (2015) 2 Mad LJ (Cr) 237 (SC)].

Application for maintenance under section 125 was decided before commencement of Muslim women (Protection of Rights on divorce) Act, but revisions filed by husband was still pending. It was held that provisions of section 7 of Act were not applicable to revisional proceedings as the same shall be decided under Code of Criminal Procedure, 1973. The court also laid down that the right of children to maintenance has not been taken away by Muslim Women Act [Mohd. Abdul Hai alias Farooq Pasha v Saleha Khatoon, 2007 Cr LJ 1394 (Bom): 2007 All MR (Cri) 775].

A Muslim divorced woman is not entitled to make or maintain an application under section 125 of Code of Criminal Procedure, 1973 for maintenance against her former husband. However if she does not fall within the meaning of the term “divorced woman” as defined under the Muslim Women (Protection of Rights on Divorce) Act or when she and her former husband so agree, she can make and maintain an application for maintenance against her husband under section 125 of Code of Criminal Procedure, 1973 [Md. Siddique Ali v Fatema Rashid, 2007 Cr LJ 2363 (2371) (Gau) : AIR 2007 (NOC) 2037 ].

The Muslim divorced woman cannot invoke the provisions of section 125 of Code of Criminal Procedure, 1973 against her former husband without exercising option under section 5 of Muslim Women (Protection of Rights on Divorce) Act, 1986 for being governed by section 125 to section 128 of Code of Criminal Procedure, 1973. In the instant case, upon the materials available, the petitioner having failed to establish that there has been valid pronouncement of Talakin case of his former wife, the wife is entitled to maintenance under section 125 of Code of Criminal Procedure, 1973 without exercising such option [Barik Sheikh v State of WB, 2004 Cr LJ 2152 : 2004 (3) All CrLR 548 : 2004 Cal CrLR 199 : 2004 (2) Cal HN 110 : 2004 (2) Hindu LR 191 : 2004 (2) Hindu LR 191 : 2004 (2) Ker LJ 209 : 2004 (3) Rec Cr R 635 (Cal)]. Where the talak alleged to have been given by the husband was found suspicious, a Muslim woman would not be deemed maintenance [Salim v Indira, 2004 Cr LJ (NOC) 239 : (2004) 2 DMC 292 (Raj) : 2004 (3) Raj LR 467 : 2004 (4) Raj LW 2555 ].

By allowing amendment of petition filed under chapter IX of the Code is not specifically prohibited. By allowing the amendment application, no injustice is caused. It cannot be stated that there is abuse of the process of the court or miscarriage of justice. There is necessity to quash the order [Sainulabdheen v Beena, 2004 Cr LJ 2351 : 2004 (2) All CrLR 624 : (2004) (17) All Ind Cas 458 : 2004 (2) Civil Court C 576 : 2004 (3) Crimes 327 : 2004 (2) Cur Cr R 404 : 2004 (1) Ker LT 859 : 2004 (2) Rec Cr R 348 (Ker)].

According to the Rajasthan High Court, after the passing of the Muslim Women (Protection of Rights on Divorce) Act, 1986, a divorced Muslim Women is not entitled to maintenance under section 125 [Aziza Khan v Dr. Amir Hussain, 2000 Cr LJ 2582 : 2000 (1) Raj LW 242 : 2000 (2) Hindu LR 409 (Raj) (GL Gupta J)].

Order of maintenance granted in favour of a divorced Muslim wife before enforcement of Act would not become void after its enforcement. [Kamal Uddin v Raisa Begum, 2001 Cr LJ 4410 : 2001 All LJ 1921 : (2001) 43 All Cr C 400 (All)].

Muslim Women (Protection of Rights and Divorce) Act, 1986 is neither retrospective in operation nor it will have effect of nullifying the orders already made under section 125 or section 127 of Code of Criminal Procedure, 1973, ordering a Muslim husband to pay maintenance to his divorced wife prior to the coming into force of the said Act of 1986 [Wali Mohammed v Batulbai, 2003 Cr LJ 2755 : 2003 (9) All Ind Cas 724 : 2003 (7) Ind LD

Page 13 of 82 [s 125] Order for maintenance of wives, children and parents.— 1015 : 2003 (2) Jab LJ 5 : 2003 (2) MPHT 113 : 2003 (2) MPLJ 513 : 2003 Mat LR 671 : 2003 (3) Rec Cr R 408 (MP)].

Mere setting up of plea of provisions, divorce in written statement is no proof of divorce so as to disentitle her from claiming maintenance under section 125 [Wali Mohammed v Batulbai, 2003 Cr LJ 2755 : 2003 (9) All Ind Cas 724 : 2003 (7) Ind LD 1015 : 2003 (2) Jab LJ 5 : 2003 (3) MPHT 113 : 2003 (2) MPLJ 513 : 2003 Mat LR 671 : 2003 (3) Rec Cr R 408 (MP)].

Where there was no evidence, oral or documentary to prove divorce, wife was held entitled to file application for maintenance under section 125 of Code of Criminal Procedure, 1973 [Shabnam Bano v Mohd. Rafiq, 2010 Cr LJ (NOC) 470 (Raj)].

After coming into force of the Muslim Women (Protection of Rights on Divorce) Act, 1986, no proceeding can be initiated on an application under section 125 by the divorced wife except as provided under section 5 of the Muslim Women Act [Shaikh Mohamed v Naseem Begum, 2007 (1) Crimes 267 (SN) (Bom)].

Husband filed application under section 127 for modification of maintenance order which was set aside by Family Court on the ground that the plea of divorce taken by husband was itself to operate as expression/declaration of talak. It was held that it was erroneous in view of Apex Court decision in AIR 2002 SC 3551 . Since divorce was not proved by evidence, order of Family Court was liable to be set aside and maintenance order to be restored [Gama Nisha v Chottu Mian, 2007 Cr LJ (NOC) 836 (Jhar) : 2007 (3) AIR Jhar R 58].

Mere statement of husband taken in written statement that he divorced his wife on a particular day is not sufficient to oust application under section 125 preferred by wife [Riaz Fatima v Mohd. Sarif, 2007 (1) Crimes 405 (Delhi)].

Husband took up defence that he had already divorced his wife according to provision of Muslim Women (Protection of Rights on Divorce) Act, 1986, but failed to prove divorce in a valid and cognizable manner. Resultantly, respondent having status of wife was held entitled to maintenance and an amount of Rs. 1,000/was not on the higher side [Muneer Ahmed v Safia Mateen, 2007 Cr LJ 919 (Kant) : I (2007) DMC 550 ].

There was no evidence to show that husband divorced his wife and talaqnama was not communicated to her, mere preparation for talaknama was not sufficient to deny maintenance to wife [Sabira Begum v Kazi Mumtaz Mohiuddin, 2007 Cr LJ (Na) 159 : 2007 (1) AIR Bom R 545 (Bom)].

Where there is no proper pronouncement of talaq and there is no evidence in whose presence talaq was pronounced, wife is entitled to maintenance [Mohammed Mustafa v Farida Banu, 2010 Cr LJ (NOC) 561 (Mad)].

In case where parties to the proceedings for maintenance are Muslims and the subsistence of marriage was disputed, when there was discrepancy and contradiction in the evidence of husband and his witnesses regarding pronouncement of Talaqand husband failed to produce Talaq notice, a non-examination of advocate who said to have issued Talaq notice divorce between the parties was not proved and therefore, the order granting maintenance of wife under section 125 of CrPC, 1977 was provision as the provision of Muslim Women (Protection of Rights on Divorce) Act (25 of 1986) were not at all attracted [Suresh Kumar alias Suresh Chandra Nayak, 2003 Cr LJ NOC 56 (Ori) : 2002 (22) Ori CR 184].

In the present case, the husband has stated in his cross-examination that at the time of pronouncement of Talaq his wife was not present there and he had also not paid the amount of Dain — Mehar at the time of

Page 14 of 82 [s 125] Order for maintenance of wives, children and parents.— Talaq. No document with regard to pronouncement of Talaq was prepared. The pronouncement of Talaq was not communicated to wife. As there was no divorce between the parties, the application for maintenance was very much maintainable [Jamshed Mian v Halima Khatoon, 2006 Cr LJ 923 (Jhar)].

There is a specific provision in Muslim Women (Protection of Rights a Divorce) Act, 1986 for allowing maintenance to the divorced wife by her former husband. Order of maintenance was passed by Magistrate about 14 years ago and the husband was paying maintenance but subsequently stopped payment and claimed that he had divorced his wife. No cogent evidence was produced to establish the fact of divorce. It was held that order directing for issuance of distress warrant against the petitioner for payment of maintenance amount to wife could not be quashed [Md. Mahfooz Ali v State of Jharkhand, 2003 Cr LJ NOC 199 : AIR 2003 Jhar HCR 742 : 2003 (2) Car Cr R 80 : 2002 (3) East Cr C 655 : 2003 (1) JLJR 223 (Jhar)].

Mandate of Muslim law qua right of husband to divorce wife was not followed and therefore, there was no valid divorce between the parties. Talaq was given by husband within 5 months from the date of grant of maintenance to wife. A presumption that Talaq was given only to evade maintenance was drawn and it was held that application for cancellation of maintenance was liable to be dismissed [Khannubi v Salim, 2003 Cr LJ 2888 : 2003 (4) All CrLR 530 : 2003 (2) Hindu LR 668 : 2003 (2) Mah LJ 940 : 2003 (4) Rec Cr R 284 (Bom)].

Muslim husband cannot repudiate the marriage at his will without reason and at his mere whims and caprice. In the instant case, reasons as to grant of divorce were not stated. Talaqnama allegedly executed by husband was without assigning any reasons and it was not produced or record. It was held that it could not be said that it was a valid Talaqnama under Muslim Law and that wife was entitled to maintenance [Naimunbee v Sk. Sikandar Sk. Rehman, 2003 Cr LJ 3257 : 2003 All MR (Cri) 1846 : 2003 (2) Hindu LR 416 : 2003 (2) Mah LJ 958 (Bom)].

Mere sending of talaqnama or communication to the Masjid or payment of Mahr amount is by itself cannot be treated as talaq having been pronounced. In the instant case, the husband had not adduced any acceptable or necessary evidence, the courts were justified in holding that the petitioner husband had failed to prove the plea of divorce by pronouncing talaq in the manner recognised in law and custom. Hence the provisions of the Muslim Women (Protection of Rights on Divorce) Act, 1996, were not at all attracted [Hussain v Smt. Nagina, 2010 Cr LJ 1506 (1510) (Kant) : ILR 2009 KARNATAKA 4619 : 2010 (4) KCCR 3190 : 2010 (2) RCR (Criminal) 438].

In the instant case, the factum of divorce had not been proved and therefore application filed by the wife under section 125 of Code of Criminal Procedure, 1973 was maintainable because it was not the application by a divorced Muslim woman [Naimunbee v Sk. Sikandar Sk. Rehman, 2003 Cr LJ 3257 : 2003 All MR (Cri) 1846 : 2003 (2) Hindu LR 416 : 2003 (2) Mah LJ 958 (Bom)].

The Muslim Women (Protection of Rights on Divorce) Act, 1986 was relevant and applicable only for a divorced woman and not to a woman who was not divorced. A deserted Muslim wife is entitled for maintenance under section 125 of Code of Criminal Procedure, 1973. [Zahra Khatoon v Jamil Akhtar, 2010 Cr LJ 3354 (3359) (Jhar) : 2011 (2) RCR (Criminal) 212].

Where against a Muslim wife’s claim for maintenance under section 125 of Code of Criminal Procedure, 1973, the husband in his reply alleged inter alia, that he had already divorced his wife and the parties had ceased to be spouses; the Supreme Court rejected the plea on the ground that the particulars of the alleged talaq were not pleaded nor the circumstances under which and persons, if any, in whose presence such talaq was pronounced, were stated. There were also no reasons substantiated in justification of the talaq and there was no plea or proof that any effort at reconciliation preceded the talaq. The court further held that the talaq to be effective has to be pronounced and there was no proof such pronouncement. The court made it clear that a mere plea taken in the written statement of a divorce having been pronounced sometime in the past cannot by itself be treated as effectuating talaq on the date of delivery of the copy of the written statement to the wife [Shamim Ara v State, AIR 2002 SC 3568 : 2002 Cr LJ 4732 : (2002) 7 SCC 518 ].

Page 15 of 82 [s 125] Order for maintenance of wives, children and parents.—

The children of Muslim parents are entitled to claim maintenance under section 125 of Code of Criminal Procedure, 1973 for the period till they attain majority or are able to maintain themselves, whichever is earlier and in case of females, till they get married. This right is absolute, notwithstanding the fact that minor children are living with divorced wife. Section 3(1)(b) of the 1986 Act does not in any way affect the rights of the minor children of divorced Muslim parents to claim maintenance from their father under section 125 of Code of Criminal Procedure, 1973 till they attain majority or are able to maintain themselves, or in the case of females, till they are married [Noor Saba Khatoon v Mohd. Quasim, AIR 1997 SC 3280 : 1997 Cr LJ 3972 : (1997) 6 SCC 223 : 1997 (3) Crimes 106 ].

Even if a Muslim wife has been divorced, she would be entitled to claim maintenance from her husband under section 125 of Code of Criminal Procedure, 1973 even after the expiry of the period of Iddat, as long as she does not remarry. The amount of maintenance to be awarded under section 125 of Code of Criminal Procedure, 1973 cannot be restricted for the Iddat period only [Shabana Bano v Imran Khan, AIR 2010 SC 305 : (2009) 1 SCC 666 ].

Amount of maintenance awarded to divorced Muslim wife, under section 125 of Code of Criminal Procedure, 1973 extends for entire life of divorced wife till she does not marry. It is not restricted only for iddat period. [Humera Khatoon v Mohd. Yaqoob, 2010 Cr LJ (NOC) 725 (All)]. [s 125.12] Muslim Women (Protection of Rights on Divorce) Act, 1986 section 3(1) (a)—Expression “maintenance to be made and paid to the wife within iddat period by her former husband”.— The expression “maintenance to be made and paid to the wife within iddat period by her former husband” makes it clear that the maintenance payable prior to date of divorce cannot be claimed. The court under section 125 of Code of Criminal Procedure, 1973 has jurisdiction only to direct payment for future maintenance, i.e. from the date of petition [Thoombath Haris v Khadeega Sherbin, 2010 Cr LJ (NOC) 559 (Ker)].

A divorcee husband, within the period of Iddat has the option to pay amounts due under section 3 of the Act. If he has made such payments, he can claim absolution from the liability under section 125 of the Code with the help of the provisions under section 127(3)(b) of the Code. In such a situation, section 127(3)(b) of the Code must telescope as a proviso into the main section, i.e., section125 of the Code. Section 127(3)(b) of the Code can then be read as a proviso to section 125 Code of Criminal Procedure, 1973. No court worth its salt is likely to pass an order under section 125 of the Code, if on the date of passing such order it is liable to be cancelled/vacated under section 127(3)(b) of the Code. Until the amounts payable under section 3 of the Act are paid, the Muslim divorced wife, to effectively implement the scheme of section 125 of the Code, must be held to be entitled to claim maintenance under section 125 of the Code. If the amounts under section 3 of the Act are paid, that would lead to absolution from liability under section 125 of the Code by the operation of section127(3)(b) of the Code. Not before such actual payment can a Muslim divorced husband put up section 3 of the Act as a shield against the claim under section 125 of the Code. We note that both provisions can hence simultaneously and harmoniously co-exist. This contention, we agree, effectively repels the argument of implied repeal on the theory of the special overriding the general. If the two provisions can co-exist, we are of the view that such an interpretation must certainly be accepted which shall not deny the target group of the benefit of either provision. The target group/beneficiary under section 125 of Code of Criminal Procedure, 1973 is the divorced Muslim women who are unable to maintain themselves and unless driven to the wall, we should not accept an interpretation which would deprive the divorcee in distress of her right to efficacious remedy under section 125 of Code of Criminal Procedure, 1973 until she claims and obtains the larger and superior relief under section 3 of the Act. Such an interpretation shall facilitate the survival on a month-to-month basis of the neglected divorcee until she gets the amount under section 3 of the Act and shall serve the laudable motivation of the Legislature in favour of such helpless women [Kunhimohammed v Ayshakutty, ILR 2010 (2) Kerala 140 : 2010 (2) Ker LT 71 (Ker)].

Even an application has been filed under the provisions of the Women (Protection of Rights on Divorce) Act, 1986, the Magistrate under the Act has the power to grant maintenance in favour of a divorced Muslim woman and the parameters and the considerations are the same as stipulated in section125 of the Code [Shamim Bano v Asraf Khan, 2014 (2) KHC SN 61 (Ker)].

Page 16 of 82 [s 125] Order for maintenance of wives, children and parents.—

There is no extinguishment of the rights of the divorced woman under section 125 of the Code by the mere enactment of the Act. Consequently, the wife herein is entitled to have the order under section 125 of the Code (duly modified under section 127 of Code of Criminal Procedure, 1973) enforced under section 128 of the Code. The decision of the Supreme Court in Sabana Bano (sup) holds the field convincingly. The petitioner will be liable to continue to make such payment until he discharges the liability under section3 of the Act and proves to the satisfaction of the court that such payment has been made and consequently the order under section 125 of the Code of Criminal Procedure, 1973 is liable to be vacated under section 127(3)(b) of the Code [Kunhimohammed v Ayshakutty, ILR 2010 (2) Kerala 140 : 2010 (2) Ker LT 71 (Ker)]. [s 125.13] Hindu Marriage Act.— The provision for maintenance under section 125 has apparently been made looking at the peculiar circumstances under which neglected women, minor children and poor parents have been living in society for long. This relief can be claimed by the aggrieved persons at the place of their own residence. Consequently, to deny the said remedy to a neglected and hard-pressed wife, merely on the ground that she could claim it in a suit filed by the husband under section 9 of the Hindu Marriage Act, 1955 which she could defend and which may sometimes be pending at a place different from her place of residence, would almost render the facility and benefit provided to her under section 125 nugatory. Therefore, a proceeding under the 1955 Act could not operate as a bar to a proceeding under section 125 [Rajendra Prasad Gupta v State of UP, 1990 Cr 1912 : 1988 (1) All Rent Cas 551 : 1988 (1) Ren CR 567 (All) (BP Singh, J.); Binod Kumar Thakur v State of Bihar, 2006 (2) Pat LJR 290 (Pat); Ashok Singh v Manjulata, 2008 (2) MPLJ 533 : 2008 Cr LJ (NOC) 128 ].

Mere passing of an order for interim maintenance under the provisions of the Hindu Marriage Act in itself cannot be a bar for passing an order for maintenance under section 125 of Code of Criminal Procedure, 1973. [Vallabhaneni Yedukondalu v Vallabhaneni Nageswaramma, 2000 Cr LJ 333 : 2000 (1) Crimes 394 : 1999 (2) Andh LT (Cri) 339 (AP)].

In a Calcutta case, witnesses examined in support of wife’s claim mentioned that all rules and rituals were performed during marriage. Held: Mere omission to mention Saptapadi is not fatal, especially in petition under section 125 which does not require strict proof marriage. Evidence of alleged marriage removed unchallenged and, therefore, it can be said that the alleged marriage was performed as per Hindu Shastras [Sunil Kr Saren v Padmabti Saren, 2003 Cr LJ 2844 : 2003 (4) All Cr R 252 : 2003 (2) Hindu LR 383 : 2003 (4) Rec Cr R 183].

In a petition under section 125 of Code of Criminal Procedure, 1973, a Court of Magistrate is not bound to accept what was found by a Civil Court in an application under section 24 of the Hindu Marriage Act about 8/10 years ago about income of wife. Proceedings under both the enactments are parallel [Abinash Mondal v Jyotsna Rani Mondal, 2003 Cr LJ 3304 : 2003 (2) Cal HN 296 : 2003 (2) Hindu LR 441 (Cal)].

The provisions under section 125 of the Code and section 24 of the Hindu Marriage Act, 1955 are separate and independent and their scope is different and relief given under one provision cannot deprive a person from getting the same or similar relief under other legal provision if he is otherwise entitled to get that relief under other provision. It is clear that scope of both the provisions is different. Whereas under section 125 of Code of Criminal Procedure, 1973, wife and minor child are entitled to obtain maintenance only, whereas under section 24 of the Act not only maintenance but also counsel’s fees and litigation expenses can also be obtained [Sunita Tasera v Lalit Kumar Jagrawal, AIR 2012 Raj 82 ].

Grant of maintenance pendente lite under section 24 of the Hindu Marriage Act, 1955 is not improper even if there is an order of maintenance in favour of the wife under section 125 of Code of Criminal Procedure, 1973. However, if the wife is given maintenance pendente lite, order under section 125 of the Code may be kept in abeyance to survive it on ceasing of operation of the former order [Kamlesh Kumari v Aman Kishore, AIR 2012 HP 33 : 2012 (2) DMC 321 ].

Maintenance under section 125 of Code of Criminal Procedure, 1973 and alimony pendente lite under section

Page 17 of 82 [s 125] Order for maintenance of wives, children and parents.— 24 of the Hindu Marriage Act can be claimed by resorting to both these provisions and the court is competent under these provisions to grant relief to the person concerned and the question of adjustment to be granted has to be decided after taking into consideration the totality of the circumstances, the amount granted, and the capacity of the person directed for making the payment. There is nothing to suggest that, as a thumb rule, adjustment to the amount is to be granted in each and every case [Ashok Singh Pal v Manjulata, 2008 Cr LJ (NOC) 1128 : AIR 2008 MP 139 (MP) : 2008 (2) MPLJ 533 : 2008 (2) MPHT 275]. [s 125.14] Jurisdiction of Civil and Criminal Courts.— Where the right to maintenance is conferred by this section as well by the general law of the parties, it can be enforced not only under this section but also by a civil suit. A right under this section does not survive the death of the defendant but a right under the personal law may be enforced also against the estate of the deceased [Lingappa, 27 M 131]. Section 4(b), Hindu Adoptions and Maintenance Act does not repeal or affect in any manner section 125 [Nanakchand Chandra Kishore Agarwala, AIR 1970 SC 446 : 1970 Cr LJ 522 : (1969) 3 SCC 802 (Bom)]. Right of a Hindu wife for maintenance under section 125 is not excluded by sections 4 and 18 of Hindu Adoptions and Maintenance Act [Ram Singh v State, AIR 1963 All 355 : 1963 (2) Cr LJ 117 ]. Lunacy Act does not override provisions of section 125 [Rajalakshmi v Kothandapani Pillai, AIR 1971 Mad 149 : 1971 Cr LJ 383 : 1970 (1) Mad LJ 494 : 1970 Mad LW (Cri) 33]. Refusal to order maintenance under section 125 is no bar to a civil suit [Ghana, 32 C 479] and the decision in such a suit is binding on the Criminal Court [Nafess Ara v Asif Saadat Ali Khan, AIR 1963 All 143 : 1963 (1) Cr LJ 394 : 1962 All LJ 786 : 1962 All Cr R 364]. [s 125.15] Lok Adalat.— Lok Adalat is not a court. The purpose of making reference to Lok Adalat is to negotiate the matter with parties and settle the claim amicably by consent of both the parties. Award cannot be passed in absence of petitioner/husband and his counsel [Balakrishna v Member-Secretary, Lok Adalat, Jamkhandi, 2007 Cr LJ NOC 41 : 2006 (6) AIR Kar R 217 (Kant)]. [s 125.16] Territorial jurisdiction.— Temporary residence of wife is sufficient to confer jurisdiction on the Magistrate of that place. Assuming even if the wife was living with her brother at the relevant though temporarily, the Magistrate at that place will have jurisdiction to entertain the petition [Kesari Devi v Jagdev Singh, 2005 Cr LJ 1091 (HP)].

Lack of jurisdiction is a mere irregularity and not illegality curable under section 462 of Code of Criminal Procedure, 1973. The revisional court would not set aside the order of Family Court granting maintenance, on the ground of lack of territorial jurisdiction [Rafiuddin v Saleha Khatoon, 2008 Cr LJ (NOC) 291 (Bom) : 2008 (1) AIR Bom R 411 : 2008 (1) Bom CR (Cri) 61 : 2008 (1) Mah LJ 18 : 2007 All MR (Cri) 3207]. [s 125.17] Agreement no bar.— The existence of an agreement to pay maintenance enforceable by a civil suit is no bar to an application under section 125. Nothing short of a decree of the Civil Court can bar the jurisdiction of the Criminal Court [Saraswati, 36 Cal WN 571 : 33 Cr LJ 634; Netram Asaram v Rajju Bai, AIR 1949 Nag 337 : (1950) 51 Cr LJ 166 : 1949 Nag LJ 204 : ILR (1949) Nag 435 ]. It has, however, been held in Bombay that the mere existence of a decree of Civil Court awarding maintenance does not oust the jurisdiction of the Criminal Court to make an order under section 125. In such a case, the Magistrate should make it clear that anything paid under the Civil Court decree will be taken into account against anything which he may order to be paid [Taralakshmi, AIR 1938 B 499 : 40 Cr LJ 91; see Gurdial Kaur v Jang Singh, AIR 1959 Punj 185 : 1959 Cr LJ 516 : ILR (1958) Punj 552 ]. Existence of a decree for maintenance of a Civil Court does not bar the Magistrate to entertain a petition under section 125 [Linga Gounder v Raman, 1978 Cr LJ 469 : 1977 (2) Mad LJ 464 : 90 Mad LW 638 (Mad)]. See now a definite provision other way in section 127 (4). The existence of a previous order for alimony does not oust the jurisdiction to order maintenance under section 125 [Kent, AIR 1926 M 59]. Section 44 of the Divorce Act does not entitle the court to make an order directing a party not to proceed with an application under section 125 in a Criminal Court [James Fredrick Rowland v Raynah Rowland Nee Glover Rowland, AIR 1959 Cal 703 : 62 Cal WN 221 : 1957 Cr LJ 1315 ]. Where a decree for maintenance cannot be executed on account of the insolvency proceedings initiated by the husband, a Magistrate can pass an order for maintenance [Mahomed Ali, 31 Cr LJ 609 : AIR 1930 B 144]. [s 125.18] Separate maintenance—Claim for.— The petition for maintenance filed by the wife prior to the dissolution of marriage was resisted by the husband on the ground that she was not justified in living separately. Her claim for maintenance was disallowed. Then, the husband got decree for restitution of conjugal rights. Meanwhile, the wife moved for divorce and, after

Page 18 of 82 [s 125] Order for maintenance of wives, children and parents.— divorce, she again filed the petition for maintenance. It was held, that during the subsistence of the marriage, refusal by the wife to submit to a decree for restitution of conjugal rights may bar her claim for separate maintenance. But, after divorce, she is under no marital obligation. Dismissal of earlier application as a married wife was no bar to a fresh application as a divorced wife. [Mampekkattu Nanu v Mampekkat Vasantha, 1986 Cr LJ 652 : 1985 (1) Crimes 1111 : 1985 (2) Hindu LR 176 : 1985 Mad LJ (Cri) 217 Ker].

A mere order of permanent alimony or maintenance does not oust or take away the jurisdiction of the Magistrate under section 125. Such an order is not equivalent to maintenance. Moreover, the section contains no direction that an order under section 125 cannot be made, if there is a decree of Civil Court for maintenance. [Kuldeep Kumar v Chander Kanta, 1984 Cr LJ 550 : 1984 (1) Crimes 173 : (1984) 6 DRJ 67 : 1984 (1) DMC 48 (Del)]. [s 125.19] Suit for cancellation—From order of maintenance.— A suit cannot be brought in a Civil Court for cancellation of an order under section 125 [Subhadra, 18 A 29]; but a declaratory suit that the defendant is not his lawful wife or that the child is not of the plaintiff is maintainable [Deraje, 30 M 400; Md. Abid, 14 C 276; Kailash, AIR 1914 O 274; Venkayya, 46 M 721]. An order duly passed under section 125 could only be modified or set aside in appeal or revision under Code of Criminal Procedure, 1973 but where the order is challenged on the ground of fraud or concealment, its validity could always be questioned by a suit in Civil Court. [Gauri Devi v Biswanath Banerjee, AIR 1970 All 185 : 1970 Cr LJ 310 : 1969 All WR 143]. A Civil Court cannot grant an injunction restraining the Magistrate from enforcing an order of maintenance. [Deraje, sup—Contra Johnson v Sarasamma, AIR 1956 T-C 204 : 1956 Cr LJ 1098 : 1956 Ker LT 80 : ILR (1956) Trav-Co 376]. Nor can it by injunction restrain the wife from pursuing her application under section 125 when the husband has brought a suit for restitution of conjugal rights. [Krishna, 32 Cr LJ 232 : AIR 1930 C 753]. Where during the pendency of divorce proceedings by husband, the wife applies for maintenance under section 125, and the husband fails to appear after service and objects, he cannot be allowed to raise the objection in revision [Richard, AIR 1959 A 489].

“Wife” includes a divorced Muslim woman who has not re-married. Section 125 overrides personal law. Section 125 (3), Second Proviso, Explanation confers upon the wife the right to refuse to live with her husband if he contracts another marriage, thus showing that section 125 overrides personal law [Mohd. Ahmad Khan v Shoh Bano Begum, AIR 1985 SC 945 :1985 Cr LJ 875 : (1985) 2 SCC 556 : 1985 (1) Crimes 975 : (1985) 1 SCJ 96 (SC)] [Effect of above decision is nullified by the Muslim Women (Protection of Rights on Divorce) Act, 1986].

Section 127(2) empowers the Magistrate to cancel or vary his order if any Civil Court decree requires it. It cannot be said that a Civil Court decree is forever binding on the Magistrate. If after a decree for restitution of conjugal rights the husband so ill-treats the wife that she is compelled to leave his house, the Magistrate is justified in ordering maintenance in spite of the decree [Rajpati, 46 A 877]; or where the husband had been making unfounded allegations of adultery against the wife, she was justified in refusing to live with him and entitled to maintenance although there was a decree for restitution of conjugal rights [Sher Khan, 33 Cr LJ 748].

A mere decree for restitution of conjugal rights is not by itself a ground to refuse maintenance, though the decree cannot be ignored. [Sayed Ghulam Sajjad v Parveen Fatima, 1981 Cr LJ (NOC) 2 : 1980 (2) Andh WR 335 : 1980 Mad LJ (Cri) 786 (AP) (case discussed)]. As to the effect of a decree for restitution of conjugal rights on a maintenance order, see further notes to section 127 (2), post.

Grant of maintenance to wife during subsistence of ex parte decree for restitution of conjugal rights against wife is not valid. Mere fact that husband took no steps to execute decree would not detract from the value of decree [M Kallya Perumal v Lakshmi, 2003 Cr LJ NOC 218 : 2003 (2) Civ LJ 406 : 2003 (1) Mah LJ 73 (Mad)].

Where a decree for restitution of conjugal rights has been passed against the wife, she can still claim maintenance, if the husband’s conduct obstructs her in obeying the decree. The presence of another woman as wife or mistress in the house is a valid ground for her to live apart and yet to claim maintenance as a destitute. [Sampuran Singh Gurdev Kaur, 1985 Cr LJ 1072 : (1985) (2) Crimes 313 : (1985) 87 Punj LR 445 : 1985 (2) DMC 21 (P&H)].

Page 19 of 82 [s 125] Order for maintenance of wives, children and parents.—

The mere institution of a suit for restitution of conjugal rights is not enough to throw out the application of wife under section 125 [Sheopiari, AIR 1954 A 21]. [s 125.20] Pleadings.— Failure to mention in the petition that petitioner is unable to maintain herself is not fatal. [Raibari Behera v Mangaraj Behra, 1983 Cr LJ 125 (1982) 54 Cut LT 566 : 1982 Hindu LR 632 : 1983 (2) DMC 269 (Ori)]. [s 125.21] Maintenance—Stay of proceedings.— Maintenance proceedings under section 125 of Code of Criminal Procedure, 1973 need not be stayed on ground of pendency of suit filed by wife for maintenance before Civil Court under Hindu Adoptions and Maintenance Act, 1956 [Pankajkumar Chimanlal Bhatt v Smt. Maya Pankaj Bhatt, 2007 Cr LJ (NOC) 162 : 2007 (1) AIR Bom R 693 (Bom); Rabindra Haribhau Karmakar v Shaila Ravindra Karmakar, 1992 Cr LJ 1845 (Bom) held no more good law in view of (1998) 8 SCC 447 ]. [s 125.22] Nature of proceedings.— Order of maintenance can be granted from date of application/date of order by proper exercise of judicial discretion. [Rulia Singh, 1990 (1) CC Cases 212 (P & H)]. Proceedings are of a civil nature even though they are in a criminal trial. [Appadu, 39 M 472; Nandlal Misra v KL Misra, AIR 1960 SC 882 : 1960 Cr LJ 1246 (SC); Jagir Kaur v Jaswant Singh, AIR 1963 SC 1521 : 1963 (2) Cr LJ 413 (SC)] and the remedy is a summary one [Jagir Kaur, sup]. Proceedings are criminal and not civil, and the expression “criminal proceedings” in Article 134 is wide enough to include proceedings under section 125 [Harbhajan Kaur v Major Sant Singh, AIR 1969 Del 298 : 1969 Cr LJ 1243 ]. Application under section 125 is not a “complaint” as contemplated by section 202. Verification of the application is not necessary [Jugtambalal, (1978) 17 GLR 335 ]. An application under section 125 is not a complaint of an “offence” [Hildephonsus, 13 PR 1885; Ponnammal, 16 M 234; Ma Saw, AIR 1935 R 277; Bibi Zainab v Anwar Khan, AIR 1946 Pat 104 : (1946) 47 Cr LJ 821 : 226 IC 43; Jaswant Singhji Fatheh Singhji Thakore v Kesuba Harisinh Dipsinhi, AIR 1955 Bom 108 : 1958 Cr LJ 357 : 56 Bom LR 819 : ILR (1955) Bom 6 ] and so it is not legally necessary for the wife to be examined before issue of process [Nur Md., 36 Cr LJ 792]. Nor is the opposite party an “accused” [Mehr Khan, 29 Cr LJ 1002; Parbati, 1 Cr LJ 865]. It cannot be referred for enquiry under section 202 [Bibi Zainab, sup; Makhan, 29 Cr LJ 909]. It cannot be dismissed for want of processfees. [Ponnammal, sup]. The defendant may give evidence on his behalf [section 315(2); Razario, 18 B 468].

Proceedings under this chapter are not conducted as in a summary trial. Evidence is to be recorded as in a summons case [see section 126 (2)].

Absence of express pleading that the claimant is unable to maintain herself is not fatal to claim [Chanan Jangir Kaur, 1983 Cr LJ 1570 : (1983) 85 Punj LR 339 : 1983 Hindu LR 223 (P&H)].

Where maintenance is awarded from the date of petition, court is not required to give reasons [K Sivaram v K Mangalmba, 1990 Cr LJ 1880 (AP) : 1989 (2) Andh LT 669 : 1989 (2) DMC 452 (Bhaskar Rao, J.)].

For the purpose of speedy trial and quick disposal for social convenience, the proceedings under section 125 are governed by Criminal Code; however, actually they are of civil nature [Pandharinath Sakharam Thube v Surekha Pandharinath Thube, 1999 Cr LJ 2919 (Bom)]. [s 125.23] Proceedings under section 125—Nature.— Proceedings under section 125 of Code of Criminal Procedure, 1973 are of civil nature and, therefore, strict proof is not expected in maintenance cases [Maglabai Chhotulal Gaikwad v Chhotulal Kashiram Gaikwad, 2009 Cr LJ (NOC) 911 (Bom) : 2009 (2) Bom CR (Cri) 20 : 2009 (2) All MR (Cri) 1397 : 2009 (4) AIR Bom R 268]. [s 125.24] Maintenance—Adequate pleading.— Plea that wife is unable to maintain herself need not be specifically raised, but averment that she is surviving with great difficulty, sufficient to satisfy requirement of adequate pleading [TP Ashraf v Fousid M, 2007 Cr LJ 700 (Ker) : ILR 2006 (4) Kerala 591 ].

Page 20 of 82 [s 125] Order for maintenance of wives, children and parents.— [s 125.25] Declaration about his marital status by appellant before the Family Court— Respondent not made party to proceedings—Effect.— In his counter-affidavit filed by the appellant-husband before the Family Court, it was alleged that the appellant was married to one L as per Hindu Marriage rites and customs and he had a male child. The appellant produced the relevant concerned papers to prove his marriage with “L”. The Family Court held by this judgment that the appellant was married to the respondent and not to L. Held, since “L” was not made a party to the proceedings before the Family Court Judge or before the High Court and no notice was issued to her, hence any declaration about her merital status vis-a-vis the appellant-husband was wholly null and void, as it will be violative of rules of natural justice [D Velusamy v D Patchaiammal, 2001 Cr LJ 320 (322) (SC)]. [s 125.26] Foreign decree.— Foreign decree of divorce, obtained by husband in Nevade, USA, if obtained in wife’s absence by husband by practicing fraud or to jurisdictional fact is not binding on Indian Court [Satya v Teja Singh, AIR 1975 SC 105 : 1975 Cr LJ 52 : (1975) 1 SCC 120 (SC)]. [s 125.27] Sub-section (1)—Order for maintenance—[“Any person”].— The right is irrespective of the nationality or creed of the parties. [Luddon, 8 C 736; Ramasami, 13 M 17; Din Md., 5 A 226]. Hindu husband converted as Mohamedan—obligation to maintain wife and children subsists. [MA Rahaman v P Venkata Ramamma, 1979 Mad LJ (Cr) 638 : 1979 (2) Andh WR 341 : 1979 LS (AP) 170 (AP)].

The words “any person” and “such person” do not connote only father or son or husband. The liability to provide maintenance to father and mother is that of daughter also [Vijaya Manohar Arbat (Dr.) v Kashirao Rajaram Sawai, AIR 1987 SC 1100 : 1987 Cr LJ 977 : (1987) 2 SCC 278 : 1987 (1) Crimes 713 overruling Rajkumari v Yashodha Devi, 1978 Cr LJ 600 : (1977) 79 Punj LR 568 : 1978 Hindu LR 711 (P&H)]. [s 125.28] Who can be ordered to pay.— Maintenance order can be passed only against the father or husband even if he is a minor and not against the father-in-law or any member of the joint family [Waryam, 15 Cr LJ 577; Hemibai, AIR 1940 Sindh 222 ; Sohan, AIR 1931 Lah 532 ; Ghulam Md., 30 Cr LJ 135; Koer, 4 NWP 123]. Maintenance order can also be passed now against a son or daughter in case of indigent parents. [s 125.29] Restitution decree.— Although there was a decree for restitution of conjugal rights, the wife refused to comply. Her claim of maintenance, in the circumstances was not tenable [Balaram Gitanjali, 2000 Cr LJ 4175 : 2000 (2) Ori LR 223 : (2000) 19 OCR 308 (Ori)]. Maintenance to the wife is her right. It cannot be denied merely because the husband has obtained a decree for restitution of conjugal rights against the wife. The two proceedings, one under section 125 and the other under the respective (Muslim) personal law of the spouses, operate in different spheres, though, in a limited area, they do overlap. The order for grant of maintenance under section 125, however, is not to be made merely for the asking, but only on certain conditions being satisfied, viz. that the person having sufficient means neglects or refuses to maintain the wife and further the condition that the Magistrate, upon proof of such neglect, or refusal orders grant of such maintenance as may be deemed necessary. The party claiming maintenance must establish neglect or refusal or maintenence on the part of the opponent. The husband is not obliged to maintain his wife if, without any justification, she is unwilling to live with him and to discharge her marital obligations [Mohd. Shakeel Shahina Parveen, 1987 Cr LJ 1509 : 1987 (1) Crimes 115 : (1987) 31 DLT 171 : (1987) 12 DRJ 127 (Del)]. Even if earlier decree for restitution of conjugal rights is not complied with by the wife, a divorced wife has right to claim maintenance [Yeshwant Shipkar v Sunita Shipkar, 2003 Cr LJ NOC 274 : 2003 (8) All Ind Cas 296 : 2003 CrLR (Sex MP) MP 578 : 2003 (2) MPHT 286 (MP)].

A wife disobeying a decree for restitution of conjugal rights in favour of her husband cannot file an application under this section on the ground that he has neglected to maintain her, prior to such decree [M Kalia Perumal v Lakshmi, 2003 Cr LJ (NOC) 18 : 2002 (3) MPHT 111; Syed Jabbar Ali v Saheba Fatima, 2002 Cr LJ 1332 (1334) (Bom) : 2002 (1) Mah LJ 623 : 2002 (2) Hindu LR 284 ].

Application by wife for maintenance cannot be rejected merely on the ground that the husband obtained decree

Page 21 of 82 [s 125] Order for maintenance of wives, children and parents.— for restitution of conjugal rights. Application for maintenance was disposed of without considering the precise directions given in the restitution decree. Matter was remanded. [Surjeet Singh v Rajendra Kaur, 1990 Cr LJ NOC 137 : 1989 All WC 1072 : 1989 All Cr R 575 (All); K Bhawani v K Lakshmanaswamy, 1994 Cr LJ 1827 (AP) : 1994 (2) Crimes 165 : 1994 (1) Andh LT 472 ; Haizaz Pashaw v Gulzar Banu, 2002 Cr LJ 3282 (3283) : (2004) 4 Crimes 106 : 2002 (2) Ker LT 773 : 2002 Mad LJ (Cri) 917].

When decree of restitution is followed by decree of divorce against wife, then the wife is still entitled to maintenance until she remains unmarried [Kesari Devi v Jagdev Singh, 2005 Cr LJ 1091 (HP)].

An order of maintenance would not be set aside merely on the ground that wife refused to live with the husband despite decree of conjugal rights where she alleges torture and ill treatment [Saranan Banerjee v State of Jharkhand, 2007 Cr LJ (NOC) 419 : 2007 (2) AIR Jhar R 82 (Jhar)]. [s 125.30] Divorce decree.— The court executing the maintenance order cannot go beyond the order. The court would not refuse to execute the order on the mere ground that the husband had divorced the wife subsequently. Where the husband has divorced his wife, the relief open to him is to file application under section 127 of Code of Criminal Procedure, 1973 before the same court which awarded the maintenance [Sheikh Mahaboob Bee v State of AP, 2003 (3) Crimes 507 (AP) : 2003 Cr LJ 2199 : 2003 (1) Andh LD (Cri) 414]. Even if there is a valid decree of divorce, the wife is still entitled to maintenance [Kishore Kumar v Neena, 2002 Cr LJ (NOC) 72 : 2001 (2) Andh LT (Cr) 392 ]. [s 125.31] Parallel proceeding.— If after the application under section 125 Code of Criminal Procedure, 1973 and after the grant of interim maintenance the same applicant files a civil suit for similar relief and with identical pleadings, the proceedings before the Criminal Court ought to be stayed [Ravindra Haribhar Karmarkar v Shila Ravindra Karmarkar, (1992) Cr LJ 1845 Bom : 1992 (2) Cur Cr R 1468].

When there is a decree for divorce against the wife on the ground of desertion by her, her obligation to stay with the husband does not survive and the husband must pay maintenance to the divorced wife [Sugandhabai v Vasant Ganpat Deobhat, (1992) Cr LJ 1838 Bom : 1992 (2) Bom CR 560 : 1992 (1) Mah LJ 427 ].

According to a Single Judge ruling of the Bombay High Court, an application under section 125 of Code of Criminal Procedure, 1973 is not barred merely because maintenance has been granted under the Hindu Adoptions and Maintenance Act [Vishwanath Pundlik Chavan v Sau Nirmala, 1992 Cr LJ 1262 Bom : 1992 (2) Rec Cr R 162].

Husband obtained decree for divorce on ground that wife is living in adultery. That fact in itself does not enable the husband to seek cancellation of the order of maintenance—Decree earlier passed in favour of wife only proves that marriage is dissolved and does prove ground of adultery—Even otherwise, wife is entitled to claim maintenance till her remarriage—order of maintenance cannot be set aside [T Raja Rao v T Neelamma, 1990 Cr LJ 2430 : 1990 (1) Andh WR 635 (AP)]. [s 125.32] Proceedings under Hindu Marriage Act, section 24.— The wife filed petition under section 24 of the Hindu Marriage Act, 1955 after obtaining award of maintenance of Rs. 2000/- per month under section125 of the Code. The husband was earning meagre income of Rs. 4500/per month. The order of declining maintenance under the Hindu Marriage Act, 1955 was held proper. [Vidya v Arvind, AIR 2016 (NOC) 564 (H.P.)].

In proceeding under section 125 of Code of Criminal Procedure, 1973, a Magistrate is not bound by the finding of the Civil Court recorded about the income of the wife in petition under section 24 of Hindu Marriage Act [Abinash Chand Mandal v Jyotsna Rani Mandal, 2003 Cr LJ 3304 (3308) (All) : 2003 (2) Cal HN 296 : 2003 (2) Hindu LR 441 ].

Page 22 of 82 [s 125] Order for maintenance of wives, children and parents.— The maintenance allowance granted under section 24 of the Hindu Marriage Act, 1955 should be adjusted towards the amount granted under section 125 of Code of Criminal Procedure, 1973 [Harish Kumar v Manju, 2004 (4) Crimes 356 (359) (Raj)]. [s 125.33] Protection of women from Domestic Violence Act, 2005.— For disposal of application for protective order under the Protection of Women From Domestic Violence Act, 2005, adopting the procedure as laid down for disposing of an application under section 125 of Code of Criminal Procedure, 1973 is required [Madhusudan Bhardwaj v Mamta Bhardwaj, 2009 Cr LJ 3095 (4000) (MP) : 2009 (8) MPLJ 259 ]. [s 125.34] Offer to maintain after application is filed.— See post : Second Proviso to sub-section (3)]. The second proviso to sub-section (3) is also a proviso to subsection (1). So, if in an application under sub-section (1), there is an offer to maintain the wife; her refusal to live with the husband on any alleged just ground or on the ground of another marriage or the keeping of mistress [Explanation to second Proviso of sub-section (3)] has also to be considered before awarding maintenance under sub-section (1). It is not that the matters referred to in the proviso to sub-section (3) have to be considered only when the maintenance order is enforced under sub-section (3) [see second Proviso 2 to subsection (3), Post]. [s 125.35] Joint liability.— Where more than one person is liable, liability is joint and several [Ahathimiligana A v Arumugham, (1988) Cr LJ 6 : 1987 Mad LW (Cri) 278 (Mad)]. [s 125.36] Maintenance.— Meagre income or no income of husband is no ground for husband’s inability to pay maintenance [HS Basavaraj v (Smt.) B Rashmi, AIR 2007 NOC 425 : 2007 (1) AIR Kar R 621 (Kant)].

Findings recorded in proceedings under section 125 are confined to liability of husband towards providing maintenance that cannot at any rate be conclusive or determinative of the rights of parties in civil proceedings [Muneer Ahmed v Safia Mateen, 2007 Cr LJ 919 (Kant) : I (2007) DMC 550 ].

Where in a case where the wife had not herself withdrawn from the company of husband and the husband had made no attempts to bring her back, order granting maintenance was held proper [Annasaheb Maroti Dhare v Sau Kolabai Annasaheb Dhotre, 2010 Cr LJ (NOC) 675 (Bom) : 2010 (2) AIR Bom R 696]. [s 125.37] “Having sufficient means”.— “Means” does not signify only visible means. If one is healthy and able-bodied, he must be held to have means to support his wife [Kandasamy, AIR 1926 M 346; Me Tha, 13 Cr LJ 162; Mg Tin, AIR 1933 R 138, FB; U. Thri, 24 Cr LJ 368; Dhani Ram v Ram Dei, AIR 1955 All 320 : 1955 Cr LJ 768 : 1954 All LJ 626 : 1954 All WR 601; Kandaswamy Moopan v Angammal, AIR 1960 Mad 348 : 1960 Cr LJ 1098 : 1960 Mad LJ (Cri) 839 : 1961 (1) Mad LJ 18; Chander Prakash Bodh Raj v Shila Rani Chander Prakash, AIR 1968 Del 174 : 1968 Cr LJ 1153 ; Nirmala, (1976) 17 GLR 457 ]. It includes a capacity to earn [Abdul Wahab, 37 Cr LJ 86; Ganga Devi, AIR 1933 L 24; Muni, 56 B 260; Md. Ali, AIR 1944 Lah 392 ; Where the maintenance awarded to wife by way of interim maintenance was challenged by the husband on the ground of his being deaf and dumb and not having any source of income, it was held that the husband being an able-bodied man whereas nothing to show that wife was able to maintain herself, the amount of Rs. 500/- awarded as maintenance was not excessive [Firoz Khan v State of Bihar, 2006 Cr LJ (NOC) 302 (Pat)]. A man by merely professing to be a monk cannot rid himself from the obligation of maintenance [Muni, supra; Mg Tin, 34 Cr LJ 815]. The onus is on the husband or the father to show want of means [Me Tha, sup; U. Thiri, sup; see however Md Ali, AIR 1944 Lah 392 ]. Wife’s petition cannot be dismissed because of mere indebtedness of husband [Valliammal v Dharamalinga, AIR 1944 Mad 762 ].

From the fact that the husband is able-bodied, it cannot be presumed that he is capable of earning sufficient means and is in a position to pay sufficient maintenance to his wife, whether in fact he is in such a position or not. That would be against the provisions of section 125 itself, which saddles the husband with the burden of paying maintenance to his wife, only when he has sufficient means and yet neglects to do so. Therefore, in

Page 23 of 82 [s 125] Order for maintenance of wives, children and parents.— order to saddle the husband with the burden of paying maintenance to his wife, it must be established first that the husband has sufficient means to pay the same. [Dasarathi Ghosh v Anuradha Ghosh, 1988 Cr LJ 64 : 1986 (2) Hindu LR 165 : 1986 (2) DMC 120 : 1986 (2) All CrLR 200 (Cal)].

When the husband is an able-bodied man, it has to be inferred that he has the means to pay the maintenance [Ali Husain v Baby Fauda Khatoon, 1998 Cr LJ 2762 (2765) : 1998 (1) Cal HN 179 : 1998 (1) All CrLR 748; Ranjana Shivaji Rakhpasare v Shwaji Bapu Rakhpasare, 2004 Cr LJ 145 (150) (Bom) : 2003 All MR (Cri) 2430 : 2004 (2) DMC 365 ].

A person cannot avoid his liability under section 125(1) merely on the ground that he has no tangible real property or income, if he is otherwise able-bodied and healthy and has capacity to earn. The presumption should be that such an able-bodied healthy person is possessed of sufficient means and it is for him to show that by accident, disease or the conditions of labour market or otherwise he is not capable of earning anything.

Mere absence of visible means or real estate will not entitle such a person to escape the liability to pay maintenance. [Durga Singh Lodhi v Prembai, 1990 Cr LJ 2065 : 1990 Jab LJ 307 : 1990 Cr LJ 236 (MP-DB)].

Where a major part of the land of the petitioner husband has been auctioned in execution of the maintenance decree passed against him and he (husband) was left with only a fractional part of it, the Magistrate, in such a situation, ought to consider whether in the changed circumstances, the wife could maintain herself with her own income and if she can, granting her nothing by way of allowance. This important aspect of the matter having not been considered, the order granting maintenance cannot be sustained [Bhagya Narain Singh v Maya Devi, 1990 Cr LJ NOC 13 : 1989 Pat LJR 947 : 1989 East Cr C 532 : 1989 (2) CrLC 56 (Pat)].

Husband, teacher in government school, was getting Rs. 12000/- pm. and wife, as part-time teacher, was getting Rs. 2000/- pm. It was held that additional amount of Rs. 1000/- given by husband as maintenance was held sufficient to maintain wife and two children. [Sewanti Devi v State of Jharkhand, 2010 Cr LJ (NOC) 580 (Jhar)].

Provisions of section 125 have been engrafted in the Code for preventing destitution or vagrancy and providing succour to starving persons. Frequent remand of cases under section 125 or revisions arising therefrom defeat the very purpose of this section. It was the consistent finding of the two lower courts that the husband had married another woman from whom he had a child. Testimony of the husband that he has only two acres of land and has meagre income was suppression of his tangible means of income. His status had been that of village Pradhan. He had capability to keep another woman and beget a child from her whom he was liable to maintain. Hence it was not proper to interfere in the enhancement of the maintenance allowance of the wife to Rs. 200/- per month [Candrapal v Harpyari, 1991 Cr LJ 2847 : 1991 (2) Crimes 808 : 1991 All LJ 948 (All)].

Husband’s insolvency itself does not absolve him of liability [Mahamed, AIR 1946 Bom 344 ].

His capacity to work and earn a salary are relevant. Therefore, unless the husband further establishes that for whatever reason he had no means or capacity to work and earn a salary and that he had not wilfully neglected to support his wife and child, he could be proceeded against under section 125. [Tarak Shaw Minto Shah, 1984 Cr LJ 206 : 1984 (1) Cal HN 152 : 1984 (1) DMC 325 : 1984 Hindu LR 598 (Cal)].

Where the husband is an old man, having no source of income, the wife would not be allowed any maintenance from him [Mugappa v Muniyamma, 2003 Cr LJ (NOC) 170 (Kant) : 2003 AIR Kant HCR 1535 : 2003 (2) DMC 188 ]. [s 125.38] “Neglects or refuses to maintain”.— Section 125 requires, as a sine qua non for its application, neglect by husband or father [Bai Tahira Ali Hussain

Page 24 of 82 [s 125] Order for maintenance of wives, children and parents.— v Fissalli Chothia, AIR 1979 SC 362 : 1979 Cr LJ 151 : (1979) 2 SCC 316 (SC)]. Neglect or refusal to maintain is the first essential to be proved in order to get maintenance [Sita, AIR 1930 Lah 886 : 129 Ind.17; Intazar, AIR 1925 Oudh 294 ; Graham, AIR 1925 Rangoon 205 : 86 Ind. Cas. 479; Roshan, AIR 1943 Lah 59 ; Prasad, AIR 1944 P 444; Gulabdas, 16 B 269]. “Neglects or refuses” means neglects or refuses to maintain properly. So if it is inadequate, the Magistrate can pass a proper order [Purnasashi Devi v Nagendra Nath Bhattacharjee, AIR 1950 Cal 465 ]. Where parties were living separate for several years and husband paying paltry sum of Rs. 30 per month on wife’s application for maintenance husband pronounced divorce it was held that the husband had refused and neglected to maintain [Isak Chanda Palkar v Nyamatbi, 1980 Cr LJ 1180 : 1980 Mah LJ 287 : 1980 Cr LR (Mah) 466 (Bom)]. Neglect or refusal to maintain wife or child may be express or implied [Bhikaji, 5 Cr LJ 33]. Neglect to maintain child may be inferred from denial of paternity [Hidayat, 14 Cr LJ 303]. Once refusal or neglect to maintain in the past is proved, an offer at the trial to maintain in future does not oust the jurisdiction of the Magistrate from making an order for maintenance [Kent, 49 M 891]; Sasoon, 49 B 562; Kambu, AIR 1924 Mad 624 : 1924 MWN 465 ; Sarfaraz 29 Cr LJ 1052; Zahura, 32 Cr LJ 247; see however Sardar, 18 Cr LJ 811; Sultan, 27 Cr LJ 1319]. When the accused has neglected to look after wife, the wife is entitled to claim maintenance without filing written statement. The husband cannot find fault with the decision of court awarding maintenance. Dinakara Londe v Deeksha D Londe, 2006 Cr LJ (NOC) 448 (Kant) : 2006 (4) AIR Kant R 142. It cannot be said that the husband had not been neglecting or refusing to maintain his wife if he had been paying her something which is a mere pittance, something which is insufficient to maintain herself and inconsistent with her needs and at the same time inconsistent with income of her husband [Daulatram Vyas v Saraswati Bai, 1978 Cr LJ 806 : 1978 (2) Andh LT 408 : 1978 Mad LJ (Cri) 694 (AP)]. Impotency of husband, though may be a ground to obtain divorce, does not amount to neglecting wife [Bundoo Mahuri Nisa, 1978 Cr LJ 1661 : 1978 All LJ 1002 : 1978 All WC 790 (All)]. “However see under just ground”. Even if the wife is living in the same house with the husband, she may be neglected by her husband, entitling her to maintenance [Rajpal v State of UP, 2007 Cr LJ (NOC) 448 : 2007 (2) ALJ 512 ].

Refusal to give medical treatment or aid to wife during her ailment constitutes refusal and neglecting wife [Manglabai Chhotulal Gaikwad v Chhotulal Kashiram Gaikwad, 2009 Cr LJ (NOC) 911 (Bom) : 2009 (2) Bom CR (Cri) 20 : 2009 (2) All MR (Cri) 1397 : 2009 (4) AIR Bom R 268].

Where the husband is living with another woman, wife is entitled to live separately and it would amount to neglect or refusal of husband to maintain her [Saraswatia Devi v Amrit Bhuiya, 2006 Cr LJ (NOC) 36 (Jhar) : 2005 AIR Jhar HCR 2134].

If the treatment of the husband does not permit wife to lead a decent and dignified life the same may amount to neglect or refusal to maintain her under the peculiar circumstances of each case. The circumstances justifying the wife to live separately cannot be exhaustive but can be only illustrative [Satya Devi v Gurdeep Singh, 1987 (2) Crimes 672 (674) (J&K)].

In this case, the husband ejected his wife along with children from his house and he had sufficient means to pay the maintenance allowance. It was held that the Family Courts’ order for maintenance allowance to the wife and children was proper [Anil Kumar Poddar v State of Jharkhand, 2006 Cr LJ (NOC) 155 : 2006 (1) AIR Jhar R 391 (Jhar) : 2006 (1) JLJR 441 : 2006 (1) East Cri C 309].

In the instant case, it was admitted position that the applicant had married with some other woman. Held, it was not necessary for the wife to prove that the husband had neglected or refused to maintain her. The burden was on the husband to prove otherwise [Gulabrao Nagarao Ingole v Dwarkabai Gulabrao Ingole, 2010 Cr LJ 1471 (1477) (Bom) : 2010 (1) Bom CR (Cri) 616 : 2010 All MR (Cri) 469].

The stray statement of wife during her cross-examination that she was compelled to file the maintenance petition having been unable to bear the extra costs arising out the two litigations filed by her husband does never mean that she filed the petition not for maintenance but for that purpose alone and she had no independent income of her own and had been living on her fathers income and kindness [Anal Adhikary v Krishna Adhikari, 2003 Cr LJ 297 (298-99) : 2002 (4) Cal HN 743 : 2003 (2) DMC 570 (Cal)].

Page 25 of 82 [s 125] Order for maintenance of wives, children and parents.— Mere allegation that wife was in the habit of harassing her husband and persistent annoyance and by her demand to provide financial support to her brother cannot be a ground to desert wife and refuse maintenance. There was nothing to show that wife was aggressive or had hostile attitude towards her husband. The wife having no sufficient funds to maintain herself and her child and was burden to her parents. It was held that the husband was liable to provide maintenance of Rs. 1000/- pm. in favour of wife and minor child [Dayalan v Jayanthi, 2010 Cr LJ (NOC) 465 (Mad)].

The husband resisted the maintenance claim on the ground that it was wife who was responsible for rift in matrimonial relationship. Held, since such issue could not be decided in summary proceedings under section 125 of Code of Criminal Procedure, 1973, the court had to see only whether there was negligence on the part of husband in maintaining wife and child and that as no wife could live away from husband and seek for maintenance without any rhyme or reason, wife was entitled to maintenance [OK Vijaykumar v Smt. T Kavitha, 2010 Cr LJ (NOC) 466 (Mad)]. [s 125.39] Inability to maintain.— Inability to maintain herself is a pre-condition for grant of maintenance to wife. The wife must positively aver and prove that she is unable to maintain herself, in addition to the fact that her husband has sufficient means to maintain her and that he has neglected to maintain her. The Apex Court held that in case the wife states that she has great hardships in maintaining herself and the daughters, while her husband’s income is quite good, the wife would be entitled to maintenance [Sunita Kachwaha v Anil Kachwaha, AIR 2015 SC 554 ].

The appellant took the plea that the wife does not need any financial assistance or support as she is a qualified post-graduate and is working as a teacher, but, there was no material on record to prove this fact of her employment and earnings. The Apex Court rejected the plea and held that merely because wife was earning something, it would not be a ground to reject her claim for maintenance [Sunita Kachwaha v Anil Kachwaha, AIR 2015 SC 554 ].

Inability of the wife-petitioners to maintain herself is to be assessed as on the date of the order to be passed and not on the date of the application for maintenance. [Veena Devi v Ashok Kumar, 2000 Cr LJ 2332 (Pat) 2338, 2339 : 2000 (2) Pat LJR 437 : 2000 (1) BLJR 750 , para 10 (Pat)].

The contention of the husband that the wife has the ability to maintain herself should be supported by oral and documentary evidence [Madan Mohan v Khashti Devi, 2001 Cr LJ 338 : 2000 All LJ 2775 : (2001) 43 All Cr C 360 : 2001 (1) Hindu LR 516 (All)].

When the husband himself has married again a newly brought-in-wife and living in the same house with her as husband and wife, and the evidence rightly proves that the husband has done a wrong and wants to take advantage, he cannot be allowed to do so. [Samidurai v Rajalakshmi, 1999 Cr LJ 2074 (Mad) : 1999 (2) Andh LT (Cr) 53 ].

Where a woman tried to make her submission through a close relative of her because of her deficiency in English, objection was taken. That was not permissible under the law in such circumstances the High Court permitted the wife to make her submission in Bengali. The claim and or grievance of the wife cannot be devised. [Pradeep Kumar Mukherjee v Chaitale, 1996 Cr LJ 1161 , 1163 : 1996 Cal CrLR 228 : 1996 (1) Hindu LR 534 (Cal)]. [s 125.40] Failure of criminal law.— The criminal proceedings under section 406/498A of the Penal Code initiated by wife resulted in acquittal of the husband. It was held that no legal bar is created thereby for wife to claim maintenance as husband was neglecting her and he had never tried to call her back to cohabit with her [Dhyandeo Dhakane v State, 2006 Cr LJ 4581 (Bom) : 2006 All MR (Cri) 2458 : 2006 (6) AIR Bom R 64]. [s 125.41] Explanation.—

Page 26 of 82 [s 125] Order for maintenance of wives, children and parents.— A second wife can claim maintenance as the presence of first wife would itself constitute refusal or neglect to maintain her. Husband cannot resist claims simply because there is a decree for restitution of conjugal rights under Mohamedan law [Hafijjabi A Aziz v Abdul Aziz Kadir Khan, 1983 Cr LJ 931 : 1983 (2) DMC 263 (Bom); Rupchand Mahato v Charubala Mahatani, AIR 1966 Cal 83 : 1966 Cr LJ 143 : 70 Cal WN 53 dissented from J].

For getting an order of maintenance under section 125, neglect or refusal to maintain must be proved. Matrimonial proceedings between the parties had ended on a particular date. Wife had not asked for maintenance during those proceedings. Even prior to that, the parties were living separately. There was no neglect or refusal to maintain [J Sampathkumar v Subashini, 1986 Cr LJ 1633 : 1995 Mad LW (Cri) 224 : 1986 Mad LJ (Cri) 15 : 1986 (1) Hindu LR 28 (Mad)].

Husband and wife were living separately with consent—Agreement to that effect was executed—Husband agreed to pay monthly maintenance—Breach by him, it was held, amounts to neglect on his part—wife is entitled to maintenance [Chimata Nagarathnamma v Chimata Nathanail, 1991 Cr LJ 291 : 1990 (3) Andh LT 54 : 1990 (2) LS (AP) 129 (AP)].

Neglect or refusal can be inferred from words and conduct of the husband. In the instant case, the oral evidence showed that the petitioner wife had been ill-treated in the house of her husband. The statements of the petitioner and her father and other witnesses showed that she was not only maltreated but was also turned out of conjugal home by her husband. The husband did not deny this fact specifically in his deposition. During the period, the petitioner stayed at her father’s place, the husband did not offer or send her any maintenance allowance for her and the minor daughter. These circumstances are sufficient to lead to the conclusion that there was neglect and refusal to maintain on behalf of the husband, and the wife could justify her living at her father’s place [Mithilesh Kumari v Bindhwasani, (1990) Cr LJ 830 : 1989 All LJ 443 : 1989 (2) CrLC 293 : 1989 UP Cr R 149 (All) (GB Singh, J.)].

Wife was driven out of house when she was pregnant. She admitted during cross-examination that she was not prepared to go back to him as she was afraid of being tortured by husband. It was held that it could be interpreted as neglect on the part of husband in matter of her maintenance and not, as her unwillingness to go to her husband [Asit Baran Mukherjee v Fuleswari Mukherjee, 2003 Cr LJ 1344 : 2003 (1) Serv LR 242 (Cal)].

As the wife was subjected to cruelty and torture by the accused husband, she left her matrimonial home and that the accused had failed and neglected to maintain her. The accused denied the allegation but the Family Court directed the accused to pay a sum of Rs. 1000/- p.m. as maintenance. The High Court held that there was no irregularity or illegality in the order [Ashok Digar v State of Jharkhand, 2006 Cr LJ 1881 (Jhar); See also Rabindra Mahto v State of Jharkhand, 2006 Cr LJ (NOC) 311 (Jhar) : 2006 (2) AIR Jhar HCR 147]. [s 125.42] Refusal to Maintain Child without Custody.— A father cannot refuse to maintain his children because they are living with their lawful guardian or mother. If he wants custody, he must enforce his right in a Civil Court [NgaP, 11 Cr LJ 662; Mg Sam, AIR 1932 R 183 (refusal of mother to live with husband after decree for restitution of conjugal rights); Ma Shwe, 38 Cr LJ 872; Murugesa, 16 Cr LJ; Mohideen, AIR 1937 M 809; Kuppala, AIR 1942 M 705; 44 Cr LJ 125; Muniammal, AIR 1943 M 768; Dinsab, AIR 1945 B 390; Ebrahim, AIR 1941 B 267; Allah Rakhi, AIR 1933 L 969; Zahura, AIR 1930 L 1043; Rose Mary v TS Arulswamy, AIR 1948 Mad 509 : (1948) 49 Cr LJ 758 (1) 1948 (1) Mad LJ 399 : 61 Mad LW 396; Rahimunnissa v Mohd. Ismail, AIR 1956 Hyd 14 : 1956 Cr LJ 47 : ILR (1955) Hyd 314 ; Sarfaraz, 29 Cr LJ 1052; Krishtappa, AIR 1942 M 705; Akhtari, AIR 1937 L 236; Kochukrishnan Asan v Rajan, AIR 1954 Trav-Co 225 : 1954 Cr LJ 625 : 1953 Ker LT 801 ; Bashiran v Nathu, AIR 1960 Raj 255 : 1960 Cr LJ 1376 : ILR (1960) 10 Raj 293 ; Abnash Chander Kanshi Ram v Soshila Devi, AIR 1962 Punj 274 : 1962 (1) Cr LJ 756 : 64 Punj LR 161; see however Ralia, AIR 1914 L 417; Sita Devi, 32 Cr LJ 196 : AIR 1930 L 886]. The court under section 125 is concerned with the fact of custody and not with the propriety of that custody [Dinsab, AIR 1945 Bom 390 : 1945 (47) BomLR 345 ].

Page 27 of 82 [s 125] Order for maintenance of wives, children and parents.— In the instant case, the husband merely filed an application under Guardians and Ward Act or under Mahammedan Law merely stating that he was entitled to get custody of minor. It was held that it was not sufficient to show that he was ready to discharge his duty to maintain his child and thus he neglected his child and refused to maintain him. Order directing father to pay Rs. 750/- per month to minor as maintenance could not be interfered with [Munnabhai Rajakbhai Vagdani v Minor Aman Munnabhai Vagdani, 2010 Cr LJ (NOC) 81 (Guj)].

For the purposes of section 125, custody is immaterial for determining father’s liability [Mohammed Yusuf Khan v Zarina, 1975 Cr LJ 1988 : 1975 Raj LW 222 (Raj); Siddiq Ahmad Sanji v Parveen, 1984 Cr LJ 341 : 1984 (1) Crimes 385 : 1984 All CrLC 65 : 1984 (1) DMC 59 (All)].

Father’s offer to take over custody is immaterial [Kunwar Dang v Vasudeo Dang, 1977 Cr LJ 1008 : ILR (1976) HP 236 : 1976 Hindu LR 678 (HP)]. Mother’s income does not count for fixing child’s maintenance [Kanwar Dang v Vasudeo Dang, 1977 Cr LJ 1008 : ILR (1976) HP 236 : 1976 Hindu LR 678 (HP)].

A bare offer by a father who has taken no interest in his child to keep him, made during the proceedings is not sufficient for refusing maintenance [Major Joginder Singh v Bibi Raj Mohinder Kaur, AIR 1960 Punj 249 : 1960 Cr LJ 640 : ILR (1960) Punj 222 ].

A father cannot take the plea that while he is entitled to the guardianship of his children, they are in fact living with their mother. Their living with their mother does not disentitle them from claiming maintenance. As regards guardianship, the forum is not the Magistrate’s Court, but the court exercising power under the Guardians and Wards Act [Siddiqi Ahmed Sanji v Parveen, 1984 Cr LJ 341 : 1984 (1) Crimes 385 : 1984 All Cr C 65 : 1984 (1) DMC 59 (All)]. [s 125.43] Maintenance of Wife—”Unable to Maintain herself”.— Wife must be lawfully married wife according to the law governing the parties [Bai Bhanbai Mavji v Kanbi Karshan Devraj, AIR 1970 Guj 137 : 1970 Cr LJ 962 : 11 Guj LR 581; Naurang Singh Chuni Singh v Sapla Devi, AIR 1968 All 412 : 1968 Cr LJ 1636 : 1968 All LJ 637 : 1968 All CrL R : 422]; Jamunabai v Anant Rao, AIR 1988 SC 193 . Where marriage is held null and void, wife cannot claim maintenance [Rattan Devi v Padam Singh Kapoor, 1981 Cr LJ 1422 : 1981 Sim LC 340 : 1981 Marri LJ 424 (HP)]. The term “wife” includes woman accepted and declared as wife notwithstanding absence of ceremonial marriage [Boli Narayan Pawye v Shidheswari Morang, 1981 Cr LJ 674 : 1981 Mat LR 188 (Gau)]. For proof of marriage under Mohamedan Law [see SA Kaiser Noor Sahan, 1980 Cr LJ 611 (Cal)]. A Mohamedan wife 15-years-old is entitled to file a maintaince application without a next friend [Gulam Mustafa v Tahara Begum, 1980 Cr LJ 124 : 1979 (2) Andh WR 372 : 1979 Mad LJ (Cri) 623 (AP)]. Second wife whose marriage is void in view of sections 5 and 11 of Hindu Marriage Act, 1955 is not entitled to claim maintenance [Bajirao Raghooba Tambare v Tolanbai, 1980 Cr LJ 473 : 1979 Bom Cr 545 : 1979 Mah LJ 693 (Bom)]. Section 125 does not apply to a concubine or mistress [P Madhavan v Munir Begum, AIR 1954 Mad 513 : 1954 Cr LJ 655 : 1953 (2) Mad LJ 839 : 68 Mad LW 880].

Valid marriage is a condition precedent for wife’s claim, Bajirao Rghooba Tambare v Tolanbai, 1980 Cr LJ 473 : 1979 Bom CR 545 : 1979 Mah LJ 693 (Bom)]. If two Roman Catholics entered into a Suyamaryadhai, form of marriage, the marriage, is not valid. It is valid only for Hindus. [Diyanathan v Jayarani, 1984 Cr LJ, (NOC) 10 : 1983 Mad LJ (Cri) 538 : 1983 Mad LW (Cri) 277 : 1984 Hindu LR 129 (Mad)].

Since the revisionist could not prove her divorce with her earlier husband, she cannot be treated the legally wedded wife of her second husband for claiming the maintenance. She had a licence for Fair Price Shop and thus she was able to maintain herself. Maintenance application was dismissed. [Angoori Devi v State of UP, 2010 Cr LJ 2772 (2773) (All)].

The condition of inability to maintain has been made expressly applicable to the case of a wife. It has been done merely to clarify and made explicit what was formerly implicit [Bhagwan Dutt v Kamala Devi, AIR 1975 SC

Page 28 of 82 [s 125] Order for maintenance of wives, children and parents.— 83 : 1975 Cr LJ 40 : (1975) 2 SCC 386 ]. The income of the wife’s parents would not be taken into consideration. Her own individual income would be relevant [Ramdayal Vaishya v Amita Kumar, 2004 Cr LJ 3669 (3670) (MP) : 2003 (4) MPHT 234 : 2004 (4) Rec CrR 851]. Section 125 has expressly made it clear that the inability of wife to maintain herself is a condition precedent to the very maintainability of the petition [Sampoornam v Arjunan, 1975 Cr LJ 1466 : 1975 Mad LW (Cri) 51 (Mad)]. Wife must mention in her petition that she is unable to maintain herself [Bishambhar Dass v Anguri, 1978 Cr LJ 385 : 1978 Hindu LR 482 : 1978 All LJ 17 : 1978 All Cr C 73 (All); Zubedabi v Adbul Khader, 1978 Cr LJ 1555 : 1978 (2) Kant LJ 143 : 1978 Mad LJ (Cri) 280 (Kant)]—Contra : It is not necessary to mention in the petition that she is unable to maintain herself [Malan v Burao Yeshwant Jadhav, 1981 Cr LJ 184 : 1980 (2) Kant LJ 414 : ILR (1980) 2 Kant 1323 (Kant) (Zubedabi, sup overruled and Bishambhar, sup dissented)].

Expression “unable to maintain must receive a dynamic and realistic interpretation in the light of indisputable plight of Indian woman [Muraleedharan v Vijayalakshmi, AIR 2007 DOC 61 : 2006 (2) DMC 613 (Ker)].

The expression “unable to maintain herself” puts the emphasis on the wife being unable to maintain herself and the emphasis is not on the capacity of wife to earn for herself. As such the potential of the wife is not in contemplation in the above expression [Tejaswani v Arvinda Teja Chandra, 2010 Cr LJ 616 (618) (Kant) : 2009 (3) KCCR 2245 : 2009 (6) KarLJ 643 ].

Though the wife is highly educated person in a given case and she does not choose to go for work but wants to sacrifice her entire life for the well being of the family even at the cost of lucrative job, it cannot be said that in such a case, the wife will not be entitled to maintenance if her husband neglects or refuses to maintain her [Tejaswani v Arvinda Teja Chandra, 2010 Cr LJ 616 (619) (Kant) : 2009 (3) KCCR 2245 : 2009 (6) KarLJ 643 ].

Wife unable to maintain herself, order granting maintenance at Rs. 200/- per month was proper [Lalu Suka Penpatil v Leelabai Dhurushirsath, 2007 Cr LJ NOC 36 : 2006 (6) AIR Bom R 103 (Bom)].

When in a case, the respondent wife established her marriage with the petitioner husband evidence and the petitioner husband failed to prove satisfactorily the subsistence of earlier another lady the order granting maintenance to respondent wife was held proper [Seerangan v LJ 2092 : 2003 Mad LJ (Cri) 204 : 2003 (2) Mad LW (Cri) 540 : 2003 Mat LR 357 : 2003 (3) (Mad)].

by acceptable marriage with Selvi, 2003 Cr Rec Cr R 486

In a case husband left house and started living elsewhere. Wife worked as a maid servant for her survival. Held, the struggle for survival could not be contained as an index of fact that she had independent source of income. Though the factum of second marriage of husband was not proved, the fact that the husband lived with another woman and nominated all his retiral dues in her favour, it can be presumed he either married or kept her as mistress and neglected his wife to provide maintenance. Order granting maintenance to wife was proper [Shanyasi Haldar v Bharati Haldar, 2004 Cr LJ NOC 62 : 2003 (4) Cal HN 405 : 2004 Cal WN 102 : 2004 (1) Hindu LR 278 (Cal)].

Statement by wife that she is able to survive with great difficulty practically conveys the same meaning as I am unable to maintain myself. [Shanyasi Haldar v Bharati Haldar, 2004 Cr LJ NOC 62 : 2003 (4) Cal HN 405 : 2004 Cal WN 102 : 2004 (1) Hindu LR 278 (Cal)].

In the instant case, the husband was an old man incapable of maintaining himself. Children of the parties were well settled. It was alleged that the wife had filed application for maintenance only with a malicious motive. It was held that application for maintenance was liable to be dismissed [Mugappa v Muniyamma, 2003 Cr LJ NOC 170 : AIR 2003 Kant HCR 1535 : 2003 (2) DMC 188 (Kant)].

Order, rejecting application for grant of maintenance relying on documents, filed by husband which were neither

Page 29 of 82 [s 125] Order for maintenance of wives, children and parents.— certified nor put to wife in her cross-examination not sustainable [Shail Kumari v Parmarath Singh, 2001 Cr LJ 4121 : 2001 CgLJ 110 (Chattis)].

In a case, ex parte order was passed when the husband did not appear in proceeding in spite of publication in newspaper. The husband filed petition before the Family Court only with prayer seeking adjournment and not to set aside ex parte order. It was held that as the conduct of husband was objectionable and had aggravated the plight of wife, no interference was called for [Md. Kasim Amasi v State of Jharkhand, 2006 Cr LJ (NOC) 272 (Jhar) : 2006 (1) AIR Jhar HCR 625]. [s 125.44] Order of maintenance to wife.— The appellant wife was staying separately due to second marriage of respondent-husband. The material produced on record showed that the respondent-husband was convicted for bigamy but appeal against which was pending at relevant time. On the basis of such facts and circumstances, it cannot be said that the appellant is living separately without any justified reason, therefore, the appellant-wife is entitled to be maintained by respondent husband. [Munni Bai v Banwari Lal, AIR 2016 SC 2224 ].

The wife left the matrimonial home along with her son and started living at her parental home. The husband filed complaint, but it was found that she was subjected to cruelty. She is not willing to come back because of the fear of being tortured. The husband is bound to pay monthly maintenance to wife and son. [Amrita Singh v Ratan Singh, AIR 2017 SC 2937 ].

The marriage between parties took place as per Hindu rituals, however, after marriage the wife lived with husband for a very short period of time. Husband sought for dissolution of marriage but could not succeed and interim maintenance was granted to wife. Both parties failed to produce conclusive proof of income of husband, however, husband himself admitted to have income of Rs. 9000 per month. Therefore, the court directed him to pay Rs. 3000 as maintenance to wife. [Hemamalini v C M Suresh, AIR 2017 (NOC) 31 (MAD).

When marital status allowed to be continued and permanent alimony also denied to wife by Civil Court then cancellation of order granting maintenance under section 125 of Code is just and proper. [Savoja v Janardhanan, 2001 Cr LJ 3111 : 2001 (2) Ker LT 624 : ILR 2001 (2) Ker 602 (Ker)]. [s 125.45] Marriage with pregnant woman.— Since 5 months pregnancy could not have remained hidden, a person marrying such a woman was not afterwards allowed to say that marriage was not valid because there was no disclosure of pregnancy. He remarried with the woman even after delivery for a period of 4 and 1/2 years. He then divorced her. He could not challenge the validity of the marriage and the legitimacy of the child [Amina v Hasan Kaya, 2003 Cr LJ 2540 : 2003 (3) Crimes 37 (SC)]. [s 125.46] Maintenance to wife—Denial of, justification.— In a case, in an application for maintenance, the respondent wife had given two reasons for her ill-treatment by the husband namely: his greed for dowry and that she was not good-looking. There was no evidence of contemporaneous nature to substantiate the allegation regarding ill-treatment of respondent. There was not even a whisper by respondent about the ground disliking her for her ugly appearance. Thus, the reason given by her ill-treatment were non-existent. It was held that the wife who left matrimonial home without any justifiable ground was not entitled to maintenance. [Deb Narayan Halder v Anushree Halder, AIR 2003 SC 3174 : 2003 Cr LJ 4470 : 2003 (4) Crimes 74 (SC)]. [s 125.47] Live-in relationship.— The Supreme Court has opined that a broad and expansive interpretation should be given to the term “wife” to include even those cases where a man and woman have been living together as husband and wife for a reasonably long period of time, and strict proof of marriage should not be a pre-condition for maintenance under section 125 of the Code so as to fulfil the true spirit and essence of the beneficial provision of maintenance under section 125. [Chanmuniya v Virendra Kumar Singh Kushwaha, (2011) 1 SCC 141 : 2010 (10) Scale 602 , case referred to a larger bench.]

Page 30 of 82 [s 125] Order for maintenance of wives, children and parents.— The concept of “live-in” relationship in the background of Indian Culture and society, sanction of such relationship is yet to be interpreted by the Larger Bench of the Apex Court. In view of that matter, the statutory provision by which the “wife” has been defined in terms of section 125 of the Code cannot be liberalized. The statute sanctions that an illegitimate child from the father is entitled for maintenance but such sanction of maintenance has not been defined provided under the law in respect to a woman not lawfully married with a person [Vineeta Devi v Babu Thakur, 2011 Cr LJ 3633 (3636) (Jhar)].

The expression “domestic relationship” in section 2(f) of the Protection of Women from Domestic Violence Act, 2005 includes not only the relationship of marriage but also a relationship “in the nature of marriage”. Parliament by enactment of the Protection of Women from Domestic Violence Act, 2005 has drawn a distinction between the “relationship of marriage” and a relationship “in the nature of marriage”, and has provided that in either case, the person who enters into either relationship is entitled to the benefit of the Act. Parliament has used the expression “relationship in the nature of marriage” and not “live-in relationship”. The court in the garb of interpretation cannot change the language of the statute. All live-in relationships do not amount to a relationship in the nature of marriage to get the benefit of the Protection of Women from Domestic Violence Act, 2005 [D Velusamy v D. Patchaiammal, AIR 2011 SC 479 : (2010) 10 SCC 469 : 2011 Cr LJ 320 (SC); see also S Khushboo v Kanniammal, AIR 2010 SC 3196 : (2010) 5 SCC 600 : 2010 Cr LJ 2828 (SC)].

All live-inrelationships are not relationships in the nature of marriage. If the appellant, having been fully aware of the fact that the respondent was a married person, enters into a live-in relationship, such relationship is, therefore, not a “relationship in the nature of marriage” because it has no inherent or essential characteristic of a marriage, but a relationship other than “in the nature of marriage” and the appellant’s status is lower than the status of a wife and that relationship would not fall within the definition of “domestic relationship” under section 2(f) of the Domestic Violence Act. Consequently, any act, omission or commission or conduct of the respondent, in connection with that type of relationship, would not amount to “domestic violence” under section 3 of the Domestic Violence Act [Indra Sarma v VK Sarma, AIR 2014 SC 309 : 2013 (14) Scale 448 ]. [s 125.48] Marriage—Subsisting.— The existence and continuation of conjugal relationship (now until the divorced wife remarries [Prakash v Jaswant Kaur, 1981 Cr LJ (NOC) 121 : ILR (1981) 1 P&H 221 1981 Hindu LR 261 (P&H)] is the foundation of an order of maintenance [Din Md., 5 A 226, 229; Janni Bibi v Mohammed Abdul Rahaman, AIR 1955 AP 1 : 1955 Cr LJ 149 : 1954 (2) Mad LJ 210 : 1954 Md WN 947], along with a further key fact that she is unable to maintain herself, as the new Code has made it clear. If marriage is denied, it must be proved according to the personal law [Gulabdas, 16 B 269; Abdur Rahman, 5 C 558; Behari, 4 A 128; Lakshmi, AIR 1938 Mad 66 : 172 Ind. Cas.811 : 1937 46 LW 766 : (1937) 2 Mad LJ 885] or custom [Luddon, 8 C 736; Ramanuja, 1937 MWN 735 ; Bogis, 34 Cr LJ 108]. Where the witness examined on behalf of the petitioner wife does not say anything about the ritual ceremonies performed at the time of marriage, and the barber present was not examined, the marriage was not proved and the wife would not be entitled to maintenance [Bhabagrahi Samantary v Satyabhama Swain, 2004 Cr LJ (NOC) 303 (Ori) : 2004 (2) Crimes 368 : 2004 (1) Ori LR 514 ]. Where marriage is disputed, the court can and should decide the question without leaving the woman to establish her status in a Civil Court [Mangli, AIR 1932 Lah 301 ; Ganga Debi, AIR 1939 Lah 24 ; Mathura Rai v Mt. Marachoo Kuer, AIR 1946 Pat 176 : (1974) 48 Cr LJ 111 : 12 Cut LT 27]. Standard of proof of marriage need not be so high as in a proceeding under the Divorce Act or sections 494, 495, 497 or 498 of the Indian Penal Code, 1860 [David, AIR 1953 Ori 10 : 19 (1953) CLT 34 ; Vanajakshamma v P. Gopala Krshna, AIR 1970 Mys 305 : 1970 Cr LJ 1584 : 1970 (2) Mys LJ 15 : 1970 Mad LJ (Cri) 552; Mohit Kumar Mukherjee v Hera, 1981 Cr LJ (NOC) 48 : 19870 Hindu LR 332 : 1980 (1) Cal LJ 410 (Cal)] or in a prosecution for bigamy [Muhammed v Sulekha, 1981 Cr LJ (NOC) 40 (Ker); Kalpana Biswas v Sukmal Biswas, 2004 Cr LJ (NOC) 166 : 2004 (1) Cal HN 93 : 2003 Cal CrLR 868; Suneel Kumar Sareen v Padmabati Sareen, 2003 Cr LJ 2844 (Cal) : 2003 (2) Hindu LR 383 : 2003 (4) All CrLR 252]. When marriage is established, maintenance should be awarded; if the legal validity of marriage is questioned, it ought to be raised in a declaratory suit [Sailendra, 41 Cal WN 898; Palmarino, AIR 1927 Bom 46 : 1926 () BomLR 1299 : 99 Ind.83; Satish Chandra Sen Gupta v Charu Bala Sen Gupta, AIR 1962 Tri 61 : 1962 (2) Cr LJ 803 ].

The courts below gave a concurrent finding of fact that wife had established the factum of marriage. The husband denies his signature on nikahnama. It was not, however, established by cogent evidence that

Page 31 of 82 [s 125] Order for maintenance of wives, children and parents.— nikahnama did not bear his signature. Order granting maintenance was held to be proper [Md. Imam Hussain Ansari v State of Jharkhand, 2005 Cr LJ 455 (Jhar) : I (2005) DMC 493 : 2005 (2) RCR (Criminal) 894].

So long as decree of nullity is not obtained, the marriage subsists. [Gabriel Antony v Thressya Gracy, (1987) Cr LJ 688 (Ker) : 1987 KLJ 377 ].

Where the Magistrate holds that the marriage has not been proved, the Additional Sessions Judge ought not to set aside the judgment lightly. Marriage cannot be proved by a few statements given in support of the factum of marriage [Shibsankar Samanta v Sobhana Samanta, 1992 Cr LJ 2196 : 1992 East Cr C 696 (2) (Cal)].

Where both the parties lived together as husband and wife and the husband had not married any other woman, there was sufficient proof of marriage [Pradeep Kumar Gupta v Kanti Devi, 2003 AIR Jhar HCR 337 : 2003 Cr LJ 1350 : 2003 (1) DMC 265 ].

The applicant failed to prove that she was the legally wedded wife of the non-applicant. The factum of marriage was categorically denied by the non-applicant. An application under section 125 would not be maintainable as the existence of the conjugal relationship is the foundation for claiming an order for the payment of maintenance under Code of Criminal Procedure, 1973 [Phirari Singh v State of UP, (1990) Cr LJ 884 All : (1989) All LJ 667 : 1989 All Cr C 250 : 1989 UP Cr R 118].

Order for maintenance passed against the husband is justified, if husband refuses to pay maintenance for a long period [Rankanidhi Behera v Jayant Sahoe, 1999 Cr LJ 2127 (Ori)].

“Wife” in section 125 means only a legally wedded wife. [Ramathal v Ramasamy Younder, 1997 (1) Crimes 117 (Mad)]. Where the wife leaves the house and company of the husband for 4–5 years, it cannot be a ground to disentitle the wife from claiming maintenance [Saygo Bai v Cheeru Bajrangi, AIR 2011 SC 1557 : (2010) 13 SCC 762 : (2011) 2 SCC (Cri) 415 ]. [s 125.49] Wife during subsistence of her first marriage, marrying another person.— In explanation to the Third Proviso to sub-section (1) of section 125, Code of Criminal Procedure, 1973, the term “wife” includes a woman who has been divorced by, or has obtained divorce from, her husband and has not remarried. If a woman during subsistence of her marriage marries another person and there is no dissolution of earlier marriage, she would not be entitled to maintenance from such husband under section 125 of Code of Criminal Procedure, 1973 [Ram Kumar Manharan Sahu v Meena Sahu, 2010 Cr LJ (NOC) 80 (CHH) : 2010 (2) Crimes 414 : 2009 (3) KLJ 214 : 2009 (3) Ker LT 1051 : 2009 (4) RCR (Criminal) 921]. [s 125.50] Decision of court in proceedings under section 498A of IPC that there was no valid marriage—Effect on proceeding under section 125 of CrPC.— The decision of a court in proceedings under section 498-A of Indian Penal Code, 1860 that there was no valid marriage between the parties has no bearing on a proceeding under section 125 of Code of Criminal Procedure, 1973 [Biswanath Sarkar v Swapna Dey, 2006 Cr LJ 1340 (Gau) : (2006) 3 Cur CrR 549]. [s 125.51] Petition for divorce and petition for maintenance to be heard together.— In this case, the parties were facing divorce case and necessarily had a bearing or petition for maintenance under section 125 of Code of Criminal Procedure, 1973. The divorce case and the petition for maintenance were required to be heard together, in view of the serious allegations being made against one another in divorce petition and also in view of the amount awarded towards maintenance [Sunandh Selvaraj v Amitha Gilbert, 2010 Cr LJ 2665 (2666) (Kant)]. [s 125.52] Petition for claiming maintenance—Affidavit evidence.— The court below dismissed the petition claiming maintenance on the ground that the “affidavit evidence” does not count into the definition of evidence as defined under section 3 of the Evidence Act. The entire approach of the Trial Court is illegal and perverse and, therefore, the order of Trial Court cannot be sustained in law [Channakha v Mahantappa, 2006 Cr LJ 1560 (Kant)].

Page 32 of 82 [s 125] Order for maintenance of wives, children and parents.— [s 125.53] Intimacy and illicit relationship.— Evidence that respondent woman was moving intimately with inmates of the house can show that there was illicit intimacy between the two. [Oona Gouri Shanker Rao v Oona Rajeswari, 1996 Cr LJ 1158 , 1159 : 1996 Mad LJ (Cri) 574 : 1996 (1) Hindu LR 412 All]. [s 125.54] Divorced women.— Liability of husband to pay maintenance to his wife arises out of matrimonial obligation and not under any contractual obligation. The plea “no means to pay” has, therefore to be rejected at the very threshold [HC Mohan v Sulochana, 2001 Cr LJ 1816 : 2000 (6) Kant LJ 141 : ILR 2000 Kant 2488 : 2001 (1) Hindu LR 252 (Kant)]. A divorced woman can claim maintenance allowance under section 125 and the plea of desertion by the wife which was the ground of divorce cannot be treated to be an effective plea in support of the husband’s refusal to pay her maintenance [Rohtas Singh v Smt. Ramendri, AIR 2000 SC 952 : 2000 Cr LJ 1498 : (2000) 3 SCC 180 : 2000 (1) Crimes 293 ].

There is absolutely no warrant for concluding that a woman “who has been divorced” refers to only women who have been divorced under the Muslim Law or customary law, or that woman “who has obtained a divorce from her husband” refers to only those wives who have obtained a decree of divorce, since the Explanation (b) was intended to include divorced wives and, since apart from judicial proceedings, divorce is also possible according to personal or customary law applicable to parties. A woman “who has been divorced” would include any woman who has been divorced not only according to personal or customary law but one who has been divorced on a decree in proceeding initiated by her husband. And, the expression “a woman who has obtained divorce” would not be restricted to only those wives who apply for a decree of divorce (as has been observed in para 16 of the judgment in Bhagwan Raoji, 1998 (2) Mah LJ 819 ) but may also include those who can and do obtain divorce under customary or personal law. It may be recalled that even under Mohamadan Law, “Khula” is a form of divorce granted at the instance of a Muslim wife sought to be made in para. The phraseology used in Explanation (b) to section 125(1) of the Code would not admit of creating classes of divorced wives. A divorced wife is a divorced wife, whatever may be the reasons for divorce and whatever may be the procedure adopted or forum chosen. If wife divorced on the ground of desertion, who has a better reason to be disentitled, because a husband cannot be said to have refused or neglected to maintain her, is held entitled to maintenance as divorced wife, since she herself deprived husband of the chance to maintain her, wives divorced for other reasons would certainly be entitled to be maintained [Gita v Chandrashekhar, 2009 Cr LJ 3499 (3506) (Bom) : 2009 BC 1 -4 : 2009 All MR (Cri) 1104 : 2009 (3) Mah LJ 825 : 2009 (4) AIR Bom R 713].

Even if mutual divorce is permissible by custom, the divorced wife would be entitled to maintenance so long she remains unmarried [Mahendra Kumar v Gulab Bai, 2001 Cr LJ 2111 : 2000 (2) Mah LJ 378 : 2000 (3) ICC 203 (Bom)].

Where there was no legal divorce and the customary divorce had not been proved by the applicant by way of bringing any evidence on record about any such custom to take such customary divorce, it was held that the grant of maintenance was not proper [Gulabrao Nagarao Ingole v Dwarkabai Gulabrao Ingole, 2010 Cr LJ 1471 (1477) (Bom) : 2010 (1) Bom CR (Cri) 616 : 2010 All MR (Cri) 470].

Even the divorcee woman is entitled for the maintenance, if evidence is brought on record to that effect and as long as she is not remarried [Gulabrao Nagarao Ingole v Dwarkabai Gulabrao Ingole, 2010 Cr LJ 1471 (1477) (Bom)].

Where the plea of divorce was taken by husband in the claim of maintenance by wife and the plea of divorce was disputed, the husband would be required to prove factum of talaq. In case of failure of husband to prove talaq, the wife would be entitled to maintenance [Parvinbanoo Abdul Mannan Chaware v Abdul Mannan Chaware, 2009 Cr LJ (NOC) 1143 (Bom) : 2009 (2) Bom CR (Cri) 200 : 2009 All MR (Cri) 2051 : 2009 (4) AIR Bom R 750]. [s 125.55] Annulment of marriage by court.— Where a decree of annulment of marriage was passed by the court, it was held that wife could not be said to be

Page 33 of 82 [s 125] Order for maintenance of wives, children and parents.— legally married wife of petitioner and thus not entitled to maintenance. However, child born to her by having sex relationship with petitioner was held entitled to maintenance [Prem Chand Mahto v Laxmi Devi, AIR 2003 Jhar HCR 918 : 2003 Cr LJ 3242 : 2003 (2) Hindu LR 412 : 2003 (4) Rec Cr R 682 (Jhar)]. [s 125.56] Wife’s income.— Under the old Code, it was held that it would be a wrong use of discretion to order maintenance when the wife had a private income to keep her from starvation [P T Ramakutty Achan v Kalyanikutty, AIR 1971 Ker 22 : 1971 Cr LJ 318 : 1970 Ker LT 554 : 1971 Mad LJ (Cri) 27; Bhagwan Dutt v Kamala Devi, AIR 1975 SC 83 : 1975 Cr LJ 40 : (1975) 2 SCC 386 ]. Under the new Code, the wife cannot be awarded maintenance at all in such case.

A wife’s petition cannot be dismissed because she has relations or friends willing to maintain her [Chanda, 16 Cr LJ 80]. Interpretation of the expression “unable to maintain herself” in the old and new Codes indicated [Malan v Baburao Yeshwant Jadhav, 1981 Cr LJ 184 : 1980 (2) Kant LJ 414 : ILR (1980) 2 Kant 1323 (Kant)]. The object of the provisions of sections 488, 489 and 490 (now sections 125 to 128) being to prevent vagrancy and destitution, the Magistrate has to find out as to what is required by the wife to maintain a standard of living which is neither luxurious nor penurious, but is modestly consistent with the status of the family. The needs and requirements of the wife for such moderate living can be fairly determined, only if her separate income, also, is taken into account together with the earnings of the husband and his commitments [Bhagwan Dutt v Kamala Devi, AIR 1975 SC 83 : 1975 Cr LJ 40 : (1975) SCC (Cri) 563 ; Abdulmunaj v Salima, 1979 Cr LJ 172 : 1978 (2) Kant LJ 453 : 1978 Mad LJ (Cri) 429 : ILR (1978) 2 Kant 1212 (Kant); G Mariahv G Vijayalaksmi, 1979 Cr LJ 1226 : 1979 (2) Andh WR 344 : 1979 Mad LJ (Cri) 633 (AP)]. Wife cannot be refused maintenance on the ground that she was earning by doing household work. It was held that maintenance of Rs. 1000/- awarded to wife and Rs. 750/- and 500/- to minor daughters was not excessive [K Krishnakumar v Sashikala, 2010 Cr LJ (NOC) 85 (Mad)]. What is necessary is that she herself should be in a position to maintain herself, not much below the status which she was used to at her husband’s place [Abdul Salim v Najima Begum, 1980 Cr LJ 232 : 1980 All Cr C 27 (All) as standard of living of the parties must also be taken into consideration [Shakuntala v Rattan Lal, 1981 Cr LJ 1420 : 1981 Sim LC 326 : 1981 Hindu LR 542 (HP)]. The fact that the deserted wife, who had claimed maintenance was herself having some earning, would not disentitle her to claim the maintenance as “unable to maintain herself” means unable to maintain herself in a way she was living with her husband [Chaturbhry v Sita Bi, 2008 Cr LJ 727 (SC) : AIR 2008 SC 530 : (2008) 2 SCC 316 : (2008) 1 SCC (Cri) 356 ]. Where Rs. 1,100 was paid as Mehar and maintenance for Iddat period and Rs. 60 per month to son, husband getting not less than Rs. 450/- per month amount of Mehar being too meagre, wife was awarded maintenance Rs. 90 per month after lapse of Iddat period in addition to Rs. 60 per month to son [Kamarunisa v Farid Gafur Sayad, 1980 Cr LJ 1390 (Bom) (Bai Tahira Ali Hussain Fissalli Chottia, AIR 1979 SC 362 : 1979 Cr LJ 151 : 1979 SCC (Cri) 473 relied on)].

In any event, merely because the wife was earning something, it would not be a ground to reject her claim for maintenance [Sunita Kachwaha v Anil Kuchwaha, 2015 Cr LJ 659 (SC) : AIR 2015 SC 554 : 2014 (3) ACR 3374 : 2015 (1) Crimes 13 (SC) : 2015 Cr LJ 659 ]. Where the wife is an educated lady but unemployed, maintenance cannot be refused merely because she is educated and capable of securing employment. Wife will be justified in refusing to live with an impotent husband and claim maintenance under section 125 of Code of Criminal Procedure, 1973 while living separately [Major Ashok Kumar Singh v VI Additional Sessions Judge, Varanasi, 1991 Cr LJ 2357 : 1991 All LJ 925 : 1991 All WC 244 : 1991 (3) Rec Cr R 430 (All)]. Maintenance cannot be disallowed merely on the ground that wife is earning a meagre livelihood. [Kamalabai Khanderao, Zhele (1990), 1 HLR 382 Bom].

Decree of divorce passed in favour of husband on the ground of desertion does not disentitle the divorced wife to claim maintenance from her husband [Ramavtar v Santosh, 2001 Cr LJ 2650 : 2001 (2) Raj LR 145 : 2001 (1) Raj Cr C 597 (Raj)].

The Apex Court held that the maintenance granted to wife by the Family Court cannot be reduced merely on the ground that she is capable of earning. [Shailja v Khobbanna, AIR 2017 SC 1174 ]. [s 125.57] Sufficient means.— The expression “having sufficient means” has an altogether different connotation from the expression “unable to

Page 34 of 82 [s 125] Order for maintenance of wives, children and parents.— maintain”. If the wife is able-bodied and possesses an earning potentiality, she should not be presumed to be able to maintain herself [Nirmala, (1976) 17 GLR 457 ; Vimal v Sukumar Anna Patil, 1981 Cr LJ 210 : (1981) 83 Bom LR 37 : 1981 Mah LJ 82 (Bom)]. The fact that a wife who was normally healthy and educated up to SSLC refused to earn would be taken into consideration while considering the quantum but merely because she refused to earn did not mean that she was not at all entitled to maintenance [Abdul Munaf Salima, 1979 Cr LJ 172 : 1978 (2) Kant LJ 453 : 1978 Mad LJ (Cri) 429 (Kant)].

Divorced wife applied for maintenance. She was educated, but could not get a permanent appointment giving her satisfactory earning, so as to enable her to maintain herself. It was held that husband would be bound to maintain her. Fact that some time back, she was temporarily employed, for a paltry sum, would be of no consequence. [Madhusudan Mishra v State of UP, 1988 Cr LJ 1247 : 1988 (2) Crimes 102 : (1988) 14 All LR 272 : 1988 (1) DMC 525 (All)].

Application was made for maintenance on behalf of minor child. It was held that paternity is a jurisdictional fact, which must be established. Decision of Civil Court in a decree for divorce was an uncontroverted finding that husband never cohabited with wife and he was not the father of the child. It was held that the Criminal Court cannot disregard this finding and refuse to cancel order of maintenance passed earlier. [Harikishan v Shantidevi, 1989 Cr LJ 439 : 1989 (1) Raj LR 259 : 1988 (1) Raj LW 304 : 1988 (2) Crimes 599 (Raj)].

Maintenance amount for minor child becomes due from date of order of the Trial Court [Rajendran v Minor Revathi, 1997 Cr LJ 2524 : 1997 (1) Mad LW (Cri) 39 : 1997(1) Crimes 486 (Mad)].

When the wife moved a joint memo before court in divorce petition, she waived her right of maintenance, but her minor son is entitled to maintenance [Rathina Marie Prema v Marcel Fernandes, 1997 Cr LJ 2524 : 1997 (1) Mad LW (Cri) 391 : (1997) 1 Crimes 256 (Mad)].

In absence of Vedic rites, the so-called marriage does not come within section 70 of the Hindu Marriage Act, yet as the parties were living together for a long time and they had a child born to them, such a child is entitled to claim maintenance from his father [Raju v Pushpa Devi, 1999 Cr LJ 2294 (Raj)]. [s 125.58] Educated but employed wife.— Wife cannot be refused maintenance because she is educated and can secure employment [Ashok Kumar Singh v VIth Additional Sessions Judge, Varanasi, 1991 Cr LJ 2357 (All) : 1991 (89) ALJ 925 : 1991 (17) ALR 519 : 1991 AWC 244 All : 1991 Civil CC 347 : 1991 CriLJ 2357 : 1991 (3) RCR (Criminal) 430; T. Muraleedharan v CP Vijaylakshmi, 2007 Cr LJ (NOC) 569 (Ker) : 2006 (4) Crimes 335 ]. [s 125.59] Maintenance of Child—”Unable to maintain itself”.— A son, legitimate or illegitimate, is considered to be dependent so long as he remains minor [Yogeshwar Nath Mishra v Arpana Kumari, 2003 Cr LJ 2625 (2628) : 2002 (4) Pat LJR 476 : 2003 (2) East CrC 138 ; Baleshwar Mandal v Anup Mandal, 2003 Cr LJ (NOC) 273 (Jhar)]. A father is liable to maintain his child, legitimate or illegitimate. It has been made clear under the new Code that only minor children, unable to maintain themselves, would come under this section, and in the case of major children, only those who through some mental or corporal defect or injury are unable to maintain themselves will get the benefit of this section. As regards married daughters, a minor daughter, as long as she remains minor and her husband is not possessed of sufficient means, may also get the benefit but a major married daughter will be wholly debarred from getting the benefit as the responsibility of maintaining her will be on her husband. Hence the old conflict of laws as to whether child in the section means only a minor child or is irrespective of age has now been settled and the decisions bearing on that conflict will have now no use. It has been held that to find “unable to maintain itself” regard must be had to particular circumstances obtaining in each family and its status [Abdul Hai Qadir Bux v Azra Sikander, AIR 1965 All 125 : 1965 (1) Cr LJ 269 ; Vishwanadhulu Lingaiah v Vishwanadhulu Kavitha, 2003 Cr LJ 961 : 2002 (2) Andh LD (Cri) 649 : 2003 (1) Andh LT (Cri) AP 97 : 2003 (2) DMC 283 : 2003 (2) Rec Cr R 447 (AP)]. The fact that the mother who has custody of the child has sufficient means is of no avail. The father must pay maintenance [HJ Mascreen v RK Masereen (Dr), AIR 1956 Mad 154 : 1956 Cr LJ 247 : 68 Mad LW 809 : 1955 (2) Mad LJ 644]. The absence of any provision in Mahomedan law to maintain an illegitimate child is no bar to an application under section 125 [Nafees Ara v Asif Saadat Ali Khan, AIR 1963 All

Page 35 of 82 [s 125] Order for maintenance of wives, children and parents.— 143 : 1963 (1) Cr LJ 394 : 1962 All LJ 786 : 1962 All Cr R 364]. In the case of a legitimate child, marriage should be proved. The conclusive presumption of legitimacy under section 112 of Evidence Act applies unless it is displaced by proof of non-access [Janamma v Kuttappa Panicker, AIR 1959 Ker 366 : 1959 Cr LJ 1328 : 1959 Ker LT 71 : ILR (1959) Ker 157 ; Raghavan Pillai v Gouri Kutty Amma, AIR 1960 Ker 119 : 1960 Cr LJ 476 : 1959 Ker LT 945 : ILR (1960) Ker 167 ]. When a wife is driven away by her husband on the discovery of pregnancy soon after marriage and a child is born, she can apply for maintenance against its putative father [Abdul Rahimankutty v Aysha Beevi, AIR 1960 Ker 101 : 1960 Cr LJ 351 : 1959 Ker LT 1077 : 1959 Ker LJ 1049 ]. Where the mother of the child had no connection with her husband after divorce and the evidence did not show that the daughter was born during the wedlock, the daughter would not be entitled to claim maintenance from her alleged father [Mohd. Noor Alam v State of Bihar, 2002 Cr LJ (NOC) 69 (Pat) : 2001 (4) Pat LJR 574 : 2002 (1) Hindu LR 413 ]. Where a claim for maintenance is made for an illegitimate child, the uncorroborated evidence of the mother that the illegitimate child is the daughter of her husband would not be accepted [Dhani Nayak v Sankara Nayak, 2003 Cr LJ 2143 (2145) : (2003) 2 DMC 658 (Ori) : 2003 (24) OCR 829 ]. For proof of paternity of illegitimate child [see Muhammed Sulekha, 1981 Cr LJ (NOC) 40 (Ker)] claim for maintenance cannot be negatived on the ground that the divorce deed absolved the husband from liability to maintain his child [Janamma v Kuttappa Panicker, AIR 1959 Ker 366 : 1959 Cr LJ 1328 : 1959 Ker LT 71 : ILR (1959) Ker 157 ].

In a case where the difference between salaries of father and mother was only Rs. 6000/- the Family Court assumed the amount of maintenance as Rs 5000/- pm. out of which the father was directed to pay Rs. 1600/pm. The order was modified and father and mother were held to pay Rs. 2200/- pm. and Rs 2800/- pm, respectively [Minor Vignesh v K Namasivaya, 2010 Cr LJ (NOC) 562 (Mad)].

A minor daughter attaining majority during the pendency of application for maintenance was held entitled to maintenance up to the date of attaining majority [Shahbuddin v State of UP, 2006 Cr LJ (NOC) 57 : 2006 (1) ALJ 372 (All) : 2006 (54) All Cri C 637 : 2006 (1) DMC 626 ].

Under the old section, maintenance covered cost of college education till the child was old enough to earn his living. In this case, one child was student of M Com and the other of MBBS course [Nanak Chand Benarsi Das v Chander Kishore, AIR 1969 Del 235 : 1969 Cr LJ 965 on appeal. Nanak Chand v Candra Kishore Aggarwal, AIR 1970 SC 446 : 1970 Cr LJ 522 : 1970 (1) SCR 565 : (1969) 3 SCC 802 ]. Under the present section, maintenance ceases with attainment of majority.

The woman claimant whose marriage was annulled by a court decree was not entitled to any maintenance but the child born of such marriage was allowed maintenance [Prem Chand Mahto v Laxmi Devi, 2003 Cr LJ 3242 : 2003 (4) RCR (Criminal) 682 (Jhar)]. In another case, the decree of the Civil Court was that the petitioner was not the wedded wife of the accused and, since no evidence was produced questioning the validity of the decree, she was not allowed maintenance. The child who had attained majority was allowed maintenance at the rate of Rs. 250/- pm from the date of the petition till the date of majority. The minor daughter was allowed maintenance at the rate of Rs. 150 pm. for the first five years, Rs. 250 for the subsequent 5 years and Rs. 300/pm till she remained unmarried [Dhani Nayak v Sankara Nayak, 2003 Cr LJ 2143 : 2003 (2) DMC 658 : 2003 (24) Ori CR 829 : 2003 (3) Rec Cr R 548 (Ori)].

While accepting the position that section 125 of Code of Criminal Procedure, 1973 does not fix liability of parents to maintain children beyond attainment of majority, the Supreme Court read the said provision and section 3(1)(b) of the Muslim Women (Protection of Rights on Divorce) Act together and held that under the latter statutory provision liability of providing maintenance extends beyond attainment of majority of a dependent girl. Applying further the principle to the facts and circumstances of the case, the court observed that the right of a minor girl for maintenance from her parents, after attaining majority till her marriage, is recognised in section 20(3) of the Hindu Adoptions and Maintenance Act. In the given case, the girl concerned was a minor and unmarried. The Family Court granted maintenance to her. This was challenged by the father alleging that the girl was entitled to maintenance only till she attained majority and not thereafter. The order of the Family Court was, however, affirmed since it was based on a combined reading of section 125 of Code of Criminal Procedure, 1973 and section 20(3) of the Hindu Adoptions and Maintenance Act [Jagdish v Manju Lata, (2002) 5 SCC 422 : 2003 (3) RCR (Criminal) 471 : (2002) 5 SCC 422 ].

Page 36 of 82 [s 125] Order for maintenance of wives, children and parents.— [s 125.60] Maintenance of illegitimate child.— The maintenance of child was claimed on the ground that the child was born as a result of rape on her by the respondent. The plea of the respondent that in FIR, the petitioner had stated that after rape, she continued to have relationship with respondent, but gave a different version before the Family Court that the child was born on account of rape was not supported by evidence. The order granting maintenance was proper. Baleshwar Mandal v Anup Mandal, 2006 Cr LJ (NOC) 273 (Jhar) : 2006 (1) AIR Jhar R 626.

When it is established that the petitioner was father of the child and the petitioner had reasonable income from profession and business, the illegitimate child was held entitled to maintenance [K Vijaya Kumar v V Devaid, 2008 Cr LJ (NOC) 567 (Mad) : 2008 (2) Mad LJ (Cri) 368]. [s 125.61] Unmarried daughter.— An unmarried daughter is a dependent within the meaning of section 20 of the Hindu Adoption and Maintenance Act and is therefore, entitled to maintenance. [Yogeshwar Nath Mishra v Arpana Kumari, 2003 Cr LJ 2625 (Pat) : 2002 (4) PLJR 476 : 2003 (3) RCR (Civil) 677 : 2003 (3) RCR (Criminal) 797; See also Subhas Roy Choudhary v State of Bihar, 2004 Cr LJ 573 (Pat) : 2003 (3) BLJR 2310 : 2004 Cr LJ 573 : II (2004) DMC 117 : 2004 (1) PLJR 338 ; Shanjari Haldar v Bharati Hadar, 2004 Cr LJ NOC 62 : 2003 (4) Cal HN 405 : 2004 Cal WN 102 : 2004 (1) Hindu LR 278 (Cal); Vishwanadhulu Lingaiah v Vishwanadhulu Kartha, 2003 Cr LJ 961 (962) AP : (2003) 2 DMC 283 : 2003 (1) Andh LT (Cri) 97 ].

A person having sufficient means is duty bound to maintain his legitimate or illegitimate minor child whether married or not. The question whether child is legitimate or illegitimate has no relevance [Alok Banerjee v Atoshi Banerjee (Smt.), 2008 Cr LJ (NOC) 689 (All) : 2008 (2) All LJ 560 : 2008 (61) All Cri C 137].

An unmarried daughter who is unable to maintain herself is entitled to maintenance and denial is discriminatory and contrary to the spirit of Articles15(3), 39(e) and (f) of the Constitution [Raj Kumar Awasthi v State of UP, 2008 Cr LJ 2539 (2544) : 2008 (3) ALJ 100 (All)]. Father is bound to maintain her daughter till she gets married [Md Siddique Ali v Fatema Rashid, 2007 Cr LJ 2363 (2380) (Gau) : AIR 2007 (NOC) 2037 ; Noor Saba Khatoon v Mohd. Quasim, AIR 1997 SC 3280 : 1997 Cr LJ 3972 ]. Where the court has granted maintenance to an unmarried daughter without making an enquiry, if she is unable to maintain herself on the ground of any physical or mental abnormality or injury, the order granting maintenance would be set aside [Rama Chandra Sahu v Tapaswine Sahu, 2007 Cr LJ 2241 (2243) : CLT (2007) Supp Crl 515 : 2007 (1) OLR 442 : 2007 (4) RCR (Criminal) 1017; Teejan Bai Chandrakar v Rajeshwari Chandrakar, 2008 (4) Crimes 343 (347) (Chh)].

Unmarried daughter is entitled to claim maintenance from her parents even after attaining majority irrespective of religion to which she belongs [Thadesina Chinna Babu Rao v Kum. Thadesina Sarala, 2010 Cr LJ (NOC) 463 (AP)].

The Allahabad High Court held that the Muslim major unmarried daughter cannot claim maintenance section 125 of the Code. She can claim it under the personal law. However, the order granting maintenance to Muslim major unmarried daughter under section 125 of the Code not interfered to avoid multiplicity of proceedings. [Mustakim v State of UP, AIR 2015 (NOC) 1081 (ALL.)].

In a case governed by Hindu Adoption and Maintenance Act, 1956, the grant of maintenance of Rs. 4000/- to unmarried daughter till she gets married on an application under section 125 of the Code was held to be neither excessive nor exorbitant [KB Shankare Gowda v Miss Sushma, AIR 2015 (NOC) 936 KAR.].

Hindu parent is bound under section 20(3) of Hindu Adoption and Maintenance Act (78 of 1956) to maintain unmarried daughter even after she attains majority. Whereas male child who attains majority as per Majority Act (9 of 1875) is not entitled for benefit under section 125 of the Code [Nitaben Dineshkumar Oza v Dineshkumar Ishwarlal Oza, AIR 2017 Guj 1 ]. [s 125.62] Such child under sub-section (1)(c).—

Page 37 of 82 [s 125] Order for maintenance of wives, children and parents.— Word injury need not necessarily denote physical injury but it should be read in context of inability to maintain. Where maintenance was granted to major unmarried daughter without enquiring and assessing that she was unable to maintain herself, it was held to be improper [Ramachandra Sahu v Tapaswini Sahu, 2007 Cr LJ 2241 (Ori) : 2007 (6) All LJ (NOC) 993]. [s 125.63] Daughter-in-law.— A daughter-in-law is not entitled to claim maintenance from her father-in-law under section 125 of Code of Criminal Procedure, 1973 [Subashchandra v Indubai, (2004) 2 Crimes 473 (475) (Kant)]. [s 125.64] Maintenance claim by mother-in-law from daughter-in-law.— Mother-in-law, a widow of 65 years, unable to maintain herself claimed maintenance from her daughter-in-law who got the appointment on compassionate ground on death of her husband, who was the only son of the applicant. At the time of appointment, she had given undertaking that she would support her mother-in-law. She earned Rs. 10,000/-per month. It was held that the mother-in-law would be entitled to get maintenance from her daughter-in-law [Saroj Mukkawar v Chandrakalabai Palshetwar, 2009 Cr LJ (NOC) 1140 (Bom) : 2009 (2) Bom CR (Cri) 71 : 2009 (4) Mah LJ 665 : 2009 (4) AIR Bom R 679]. [s 125.65] Paternity.— The basis of an application for maintenance of a child is its paternity, irrespective of legitimacy or illegitimacy [Nur Md., 16 C 781]. Where child was born 5 months after elopement, in the absence of any material that any other person had any access to the woman, the child is entitled to maintenance [Boli Narayan Pawye v Shiddheswari Marang, 1981 Cr LJ 674 : 1981 Mat LR 188 (Gau)]. Though a woman is of bad character, she is entitled to an order for maintenance of her illegitimate child if she proves that the opposite party was the father [Hiralal, 18 A 107, 108; Lingappa, 27 M 13, 15]. So a wife living an unchaste life is entitled to maintenance for a child admittedly her husband’s [Muniammal, AIR 1943 Mad 768 : (1944) ILR Mad 382 : 1943 56 LW 496 : (1943) 2 Mad LJ 318 : 1943 MWN 584]. A divorced wife entitled to custody of her children is entitled to get their maintenance [Ayshabai, 6 Bom LR 536; Allah Rakhi, 14 L 779]. Adoptive father is not liable to pay maintenance to adoptive child [Nanu, AIR 1937 Mad 547 ; Ma E, AIR 1937 Rangoon 370 : 171 Ind.800]. The burden of proving paternity is on the applicant [Prasad, AIR 1941 Pat 444 ]. Although it may not always be prudent to accept the statement of the mother as to paternity without corroboration [Vedantachari, AIR 1926 Mad 1130 : 97 Ind.356 : 97 Ind. Cas.359 : 1926 24 LW 409 ; Prasad, AIR 1941 Pat 444 ; Thakur Prasad v Godavari Devi, AIR 1951 Pat 514 : 1951 Cr LJ 684 ] there is no hard and fast rule as to corroboration [Bathulu, 41 Cr LJ 718].

The onus to prove that the child who claims maintenance from the alleged father is upon the child. When a child is born out of wedlock, the onus lies squarely on the mother to establish the paternity of such child and it is for her to prove that the person from whom she claims maintenance for the child is the father of the child. The disputed paternity cannot be determined on the evidence of the mother alone, and the rule of prudence requires that her evidence should be corroborated [Master Leonard Mark Hillario v Seby Hillario, 2007 Cr LJ 3627 (3630) : 2007 (1) Bom CR (Cri) 577 (Bom) : 2007 All MR (Cri) 1649 : 2007 (4) AIR Bom R 709].

The case of the applicant’s mother that the child was fathered by the respondent was to a great extent corroborated. The evidence showed that they were enjoying a close relationship and that was because of the promise made by the respondent that he would marry her. The applicant’s evidence was also substantially corroborated by the circumstances which compelled her first to approach the priest, then a social worker, then the conciliation centre and then the police station. The child was held entitled to maintenance [Master Leonard Mark Hillario v Seby Hillario, 2007 Cr LJ 3627 (3631, 3632) : 2007 (1) Bom CR (Cri) 577 (Bom) : 2007 All MR (Cri) 1649 : 2007 (4) AIR Bom R 709].

In this case, the matter was compromised and it was agreed by the father that the child being his daughter was entitled to claim maintenance. It was held that in view of the compromise and in view of the admission of paternity, there was no scope for any enquiry as regard to paternity in the proceedings under section 125 of Code of Criminal Procedure, 1973 [Joy Verghese v Leelamma, 2007 Cr LJ 3363 (3364) (DB) : 2007 (2) Ker LJ 554 (Ker)].

A fully mature child was born 210 days after husband’s access to wife. The child survived without special

Page 38 of 82 [s 125] Order for maintenance of wives, children and parents.— medical attention. There was authoritative expert medical opinion that there was absolutely no chance of survival of a body born before 210 days without special medical care. Further, the wife took an oath at a mosque that the child was not born of access by the husband. Held, that the husband could not be required to maintain the child born of the wife’s lapse. [Kathichal Puthiyapurayil Pathumma v Thunda Kachin Abdulla, (1985) Cr LJ 219 : 1984 Ker LT 1100 : 1985 (1) DMC 231 : 1985 (1) Hindu LR 228 (Ker)].

In a claim of maintenance for the son from father, there was a dispute as to paternity. Earlier, the father in his reply to his claim petition admitted the paternity of his son but subsequently he amended his reply and alleged that the son was born during the period when his wife was leading adulterous life. Held, the father’s allegation that the son was born out of the adulterous life of wife was not corroborated by ocular or documentary evidence. He had also not withdrawn his earlier admission of paternity of his son. The father was, therefore, liable to pay maintenance to his son [Sant Kumar v Neerabai, 2010 Cr LJ (NOC) 352 (CHH)].

Proof in the case of an application by a married woman against a third person for maintenance of his child [Rajbai, AIR 1942 Mad 251 : (1941) 2 Mad LJ 693].

The father is bound to maintain the child even though its mother may be able to maintain [Mi Thein, 15 Cr LJ 278]. A girl earning by prostitution is “unable to maintain herself”, as prostitution cannot be treated as a profession [Krishnaswamy, 37 MK 65].

Child’s right is separate from that of the mother [Boomi v Leela Rajan, AIR 1977 SC 700 : (1977) Cr LJ 342 : (1977)_ 4 SCC 596 (SC)].

Maintenance to children cannot be granted beyond the age of their attaining majority in the absence of any physical or mental abnormality and injury [K Sivaram v K Mangalamba, 1990 Cr LJ 1880 : 1989 (2) Andh LT 669 : 1989 (1) DMC 452 : 1989 (1) LS 326 (AP)].

According to the Gauhati High Court, maintenance under section 125 can be granted to a minor child aged above two years of a Muslim Couple. Section 3(1)(b) of the Muslim Women (Protection of Rights on Divorce Act) 1986 does not conflict with section 125. The father can be ordered to pay maintenance under section 125, even if he has divorced the wife [Rupsana Begum v Md. Abdul Sattar, 1990 Cr LJ 2391 : 1990 (1) Gau LR 230 (Gau)].

Right of child to claim maintenance under section 125 of Code of Criminal Procedure, 1973 is not taken away by section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986, but it has given additional safeguard to a child [MA Hameed v Arif Jan, (1990) Cr LJ 96 (AP) (Bhaskar Rao, J.) : I (1991) DMC 366 ].

As to liability of father to maintain when the child belongs to a tarward [see Parathi, 14 Cr LJ 597; Raman, 34 Cr LJ 1159; Chanta, 39 M 957; Thillu, 20 Cr LJ 733; Bharata, 46 Mad LJ 324]. Fact that the mother has separate earning is of no relevance [CM Mani Esther Pachikara, 1981 Cr LJ (NOC) 76 : 1980 Ker LT 969 (Ker)].

Where paternity of child is disputed, the presumption under section 112 of Evidence Act still applies. Husband must prove non-excess. Moreover, where as per wife’s evidence, she was four months pregnant when she left the matrimonial home, the child is entitled to maintenance. [Vallabhaneni Yedukondalu v Vallabhaneni Nageshwaramma, 2000 Cr LJ 333 , 336 : 2000 (1) Crimes 394 : 1999 (2) Andh LT (Cri) 339 para 15 (AP)]. An entry in the School Register where opposite party was recorded as father of the petitioner child was held to be sufficient proof of parentage [Kalpana Biswas v Sukm Biswas, 2004 Cr LJ (NOC) 166 : (2004) 1 Cal HN 93 (Cal) : 2003 Cal CrLR 868].

Since grant of maintenance from date of application which was filed before 11 years will overburden poor

Page 39 of 82 [s 125] Order for maintenance of wives, children and parents.— husband, a labour earning Rs. 50–60/- per day hence grant of maintenance for date of order is proper. [Islam v State of UP, 2001 Cr LJ 2846 : 2001 All LJ 1225 : (2001) 42 All Cr C 1073 (All)].

In a case, father disputed paternity of child and sought blood test of child. It was held that the purpose of his application was nothing more than to avoid payment of maintenance, without making any ground whatever to have recourse to the test and, thus, the rejection of application was proper [Goutam Kundu v State of WB, AIR 1993 SC 2295 : 1993 Cr LJ 3233 : (1993) 3 SCC 418 : 1993 (2) Crimes 481 ].

In a proceeding under section 125 of Code of Criminal Procedure, 1973, the court would not be justified in suspecting the chastity of the wife merely because the husband cast aspersions on her chastity. In proceedings under this section, the Magistrate would not be justified in directing DNA test of the child [Manik Chandra Ankure v State of WB, (2004) 1 Crimes 547 (550) Cal : (2003) 4 Cal HN 649].

A woman cannot claim maintenance from a man for a child (alleged to have been) born of her sexual relations with that man (alleged to be her paramour), if the child was born during the subsistence of her marriage with another person, unless, she can prove that during the period when the child could have been conceived, the husband had no access to her. This is because of section 112 of Evidence Act [Jit Ram v Cheli, (1989) Cr LJ 1852 : 1989 (2) Crimes 165 : 1989 (1) Sim lC 237 (HP) : Following Raghavan Pillai v Gaurikutty Amma, AIR 1960 Ker 119 : 1960 Cr LJ 476 : 1959 Ker LT 945 : ILR (1960) Ker 167 ]. [s 125.66] DNA Test.— Direction for DNA test without examining paternity on basis of the evidence is not proper [Sharik K Ahmad v Sunderlal, 2007 (NOC) 518 (Chh); Alok Banerjee v Atoshi Banerjee, 2008 (2) ALJ 560 : 2008 Cr LJ (NOC) 689 : 2008 (61) All Cri C 137]. [s 125.67] Child born as a result of rape—Maintenance.— A child born as a result of rape is entitled to maintenance from the person who has committed rape [Baleshwar Mandal v Anum Mandal, 2006 Cr LJ (NOC) 273 : 2006 (1) AIR Jhar R 626 : 2006 (2) DMC 265 : 2006 (1) East Cri C 418]. [s 125.68] Maintenance of father or mother—Unable to maintain himself or herself.— Mother can claim maintenance from any of her sons, even though her husband is alive [Rafiuddin v Saleha Khatoon, 2008 Cr LJ (NOC) 291 : 2008 (1) AIR Bom R 411 (Bom) : 2008 (1) Bom CR (Cri) 61 : 2008 (1) Mah LJ 18 : 2007 All MR (Cri) 3207]. A step-mother living alone and unable to maintain herself is entitled for maintenance from her step-sons in view of benevolent provisions contained in section 125 of the Code. [Deenbandhu v Birajo Bai, AIR 2015 Ch 136 ]. A step-mother cannot claim maintenance from her step-son [Ramabai, (1976) Mah LJ 565 ]—Contra. The word “mother” includes a woman who has the status of a stepmother by reason of lawful marriage with father [Horobin, (1978) 19 GLR 237 ]. The word “mother” includes adoptive mother [Baban v Parvatibai Dagadu Dange, 1978 Cr LJ 1436 : 1978 Mah LJ 604 : 1978 (2) Mah LR 365 (Bom) [Ramabai, sup, dissented)]. Claim of maintenance by father is not dependent on his having discharged parental obligations during the childhood of the children [Pandurang Baburao Dabhade v Baburao Bhaurao Dabhade, 1980 Cr LJ 256 : 1979 Bom CR 573 : 1979 Mah LJ 729 (Bom)].

“Step-mother” cannot attain the status of mother for the purpose of claiming maintenance under section 125. The court has to consider the personal law applicable to the parties. In the Hindu law, the “mother” is one who has given birth to the child. No doubt, a step-mother can be a dependent, but she cannot, as a matter of right, claim maintenance under section 125 [Ayyagari Suryanarayana Vara Prasada Rao v Ayyagari Venkatakrishna Veni, 1989 Cr LJ 673 : 1988 (2) Andh LT 26 : 1988 (1) APLJ 490 : 1988 (2) Hindu LR 459 (AP)]. The Karnataka High Court has held that a step-mother is entitled to maintenance when she proves that she is living alone and due to old age is unable to maintain herself [Ulleppa v Gangabai, 2003 Cr LJ 2566 : AIR 2003 Kant HCR 1338 : ILR (Kant) 2003 (3) Kar 1946 : 2003 (6) Ind LD 138 : 2003 (5) Kant LJ 227 : 2003 (3) Rec Cr R 405 (Kant)].

A daughter, though married, is bound to maintain her indigent father. The object of the proceeding for maintenance is to prevent vagrancy. The provisions relating to obligations to maintain are not penal in nature, but are intended for the enforcement of a social duty, a default of which may lead to destitution and vagrancy. It

Page 40 of 82 [s 125] Order for maintenance of wives, children and parents.— serves social purpose. Therefore, it will not be fair to exclude a well-to-do married daughter, who has an independent source of income, from carrying out this social obligation. That will be against all the cannons of justice, equity and good conscience. It will also be against the well-established principles of gender justice [Vijaya Manohar Arbat (Dr.) v Kashiram Rajaram Sawai, 1987 Cr LJ 977 : 1987 (3) Crimes 348 : (1987) 1 SCJ 524 : AIR 1987 SC 1100 ]. In a case, the petitioner was brought up by his step-mother after separation of his parents. His mother never claimed maintenance from her husband (petitioner’s father) during his life time. She was staying with her second son and was having her own income. It was held that it could not be said that she had no means for her maintenance and that the mother was not entitled to claim maintenance [Bhagwati v Sunder Bai, 2005 Cr LJ 1148 (Raj)].

Daughter must maintain father, if father is unable to maintain himself [M Areefa Beevi v KM Sahib (Dr.), (1983) Cr LJ 412 : 1982 Ker LT 242 : ILR (1982) 2 Ker 49 (Ker)].

In a case of claim of maintenance by parents, the son contended that the parents had their source of income and father was running the mill. The plea of the son was negatived by the certificate issued by the Inspector of Factories and Boilers that the concerned mill was not running. The refusal of maintenance was passed ignoring the aforesaid certificate and with recording statement of mother as required under O XIV, rule 2(1)(c) of Code of Civil Procedure, 1908 is liable to be set aside and the parents are entitled to maintenance at the rate of Rs. 800/- per month. Akham Ibodi Singh v Akham Biradhwaja Singh, 2006 Cr LJ 3366 (3371) (Gau) : II (2006) DMC 523 : (2007) 1 GLR 359 : 2006 (2) GLT 48 : 2006 (4) RCR (Criminal) 778.

In a case, where the Family Court awarded a sum of Rs. 1000/- p.m. through Family Court, to the mother though the son pleaded that he had seven children, and his earning was less than 7000/-, it was held that no interference was warranted [Umesh Kumar Rawani v State of Jharkhand, 2006 Cr LJ (NOC) 276 (Jhar)]. [s 125.69] Maintenance to parents—Necessary parties.— All sons and daughter need not be joined in the proceedings for maintenance and should be treated as having joint liability to provide maintenance. Akham Ibodi Singh v Akham Biradhwaja Singh, 2006 Cr LJ 3366 (3371– 72) (Gau). [s 125.70] What is maintenance.— Some cases held that maintenance means bare sustenance, i.e., food, clothing and lodging [Nga Hla, 11 Cr LJ 40; Ma Shwe, AIR 1923 Rangoon 45 : 79 Ind. Cas.441 : 79 Ind.744; Kumli, 25 Cr LJ 1249; Md. Ali, AIR 1944 Lah 392 ; Shanno, 35 Cr LJ 473; see Arunachala, 56 M 913]. The other view is that the right of maintenance is independent of wife’s means [Major Joginder Singh v Bibi Raj Mohider Kaur, AIR 1960 Punj 249 : 1960 Cr LJ 640 : ILR (1960) Punj 222 ] and in a civilised state, mere maintenance of body is not sufficient; provision has also to be made for education of child [Mg Shwe, 40 Cr LJ 440; Tekchand, AIR 1941 SC 214 ; Purnasashi Devi v Nagendra Nath Bhattacharjee, AIR 1950 Cal 465 ]. The concept of providing a wife merely with food, clothing and lodging as if she is only a chattel and has to depend on the sweet-will and mercy of the husband has now become completely outdated and absolutely archaic [Sirajmohmedkhan Jan Mohamadkhan v Hajizunnisa Yasinkhan, AIR 1981 SC 1972 : 1981 Cr LJ 1430 : (1981) 4 SCC 250 ]. The word “maintenance” is not to be narrowly interpreted. It means the most reasonable requirements for the existence of a person to live separately. Reasonable amount for constant medical expenses can be included to expenditure broadly on food, nourishment, clothing and residence [Ramanlal Tribhovandas Thakkar v Shantaben, AIR 1968 Guj 171 : 1968 Cr LJ 1073 : 8 Guj LR 658]. A husband, in affluent circumstances or when he becomes so later, should pay maintenance in accordance with the status of the spouses [Wudali, AIR 1961 All 510 . Cost for medical attendance for invalid wife comes within maintenance [Ramanathan, AIR 1943 Mad 342 : 1943 56 LW 157 : (1943) 1 Mad LJ 230 : 1943 MWN 150].

The object of maintenance being to prevent vagrancy and destitution, it has to be found out what is required by the wife to maintain a standard of living which is neither luxurious nor penurious, but is modestly consistent with the status of the family. The earnings of the husband and his capacity to earn and his commitments are also relevant factors [Raibari Behera v Mangaraj Behera, 1983 Cr LJ 125 : (1982) 54 Cut LT 566 : 1982 Hindu LR 632 : 1983 (2) DMC 269 (Ori)]. [s 125.71] Fixation of amount of maintenance—[Monthly Allowance].—

Page 41 of 82 [s 125] Order for maintenance of wives, children and parents.— Amount of maintenance has to be fixed after taking into consideration all circumstances of case [Ashish v DC Tewari, AIR 1970 Del 98 : 1970 Cr LJ 670 : 72 Punj LR (D) 210]. In determining the amount, the necessaries of life should be considered according to the status in life of the applicant and the means of the respondent’s husband [Dragon, 13 Cr LJ 55; Ma E, AIR 1937 R 370—Contra : Whatever may be wife’s rights under the civil law, under section 125 she cannot get more than food, clothes and lodging [Md. Ali, AIR 1944 L 392]. The net earning of the husband should be taken into account [Tekchand, AIR 1941 SC 214 ; Ram Singh v State, AIR 1963 All 355 : 1963 (2) Cr LJ 117 ]. Not only the needs of the applicant but the paying capacity of the husband should be considered [Chameli v Gajraj Bahadur Gupta, AIR 1954 All 33 : 1954 Cr LJ 19 : 1953 All LJ 485 : 1953 All WR 479]. Overtime or capacity to earn should be considered, not merely the basic wage [Klucinske, (1953) 1 All ER 683 ]. Where father earned Rs. 450 net, Rs. 150 p.m. for 3 children were held reasonable [CM Mani v Esther Pachikara, 1981 Cr LJ (NOC) 76 : 1980 Ker LT 969 (Ker)].

Maintenance under section 125 includes provision for food, clothing, residence, education as well as medical treatment as per financial status [Shyam Sunder Malik v Geetika Malik, 2006 (37) AIC 383 (Del)].

Normally, maintenance amount should not exceed one-third of the total income of the opposite party [Anita Tambe v State of Maharashtra, 2007 Cr LJ (NOC) 773 : 2007 (4) AIR Bom R 470 (Bom) : 2007 (2) Bom CR (Cri) 227 : 2007 All MR (Cri) 1807].

The section is clear that only two kinds of orders are allowed: (1) a monthly allowance, or (2) it can be dismissed [Nathuram v Ramsri, AIR 1965 All 129 : 1965 (1) Cr LJ 273 : 1964 All LJ 72]. The only order that can be made is a cash monthly allowance and not on a mixed basis of cash and any other thing. Any conditional order of maintenance is illegal [Roshan, AIR 1943 L 59; Basant, 30 Cr LJ 51; Mukta, AIR 1924 B 332; Atru, AIR 1925 L 142; Kaluram, AIR 1932 N 183; Ahirani Vali Lakha v Govind Pola, AIR 1953 Sau 2 : 1953 Cr LJ 88 : 5 Sall LR 14; Annapurna Devi v Satrughna Mahakud, AIR 1960 Ori 94 : 1960 Cr LJ 840 : 26 Cut LT 155] : Maintenance can be allowed only at a monthly rate. Joint award of maintenance to wife and child is not legal [Thankappan Asari v Pankajakshi, AIR 1960 Ker 66 : 1960 Cr LJ 227 : 1959 Ker LT 763 ]. Annual allowance cannot be given [Purnasashi Devi v Nagendra Nath Bhatttacharjee, AIR 1950 Cal 465 ]. A conditional order of maintenance is illegal, e.g., an order to maintain in the event of turning the wife out to pay a certain sum as maintenance [Natha, 27 Cr LJ 556; see Ramzan, 29 Cr LJ 895; Jamiat, 18 Cr LJ 528]. Any agreement between the parties to provide house, ornament, grain, etc., is unenforceable [Viramma, 6 M 283; Masta, 21 Cr LJ 612]. If any compromise provides for annual payment in grain, the court should commute it into monthly cash payment [Annapurna Devi v Satrughna Mahakud, AIR 1960 Ker 94 : 1960 Cr LJ 840 : 26 Cut LT 155].

It is to be a fixed monthly rate. An order for maintenance at a progressively increasing rate as the child grows older cannot be made. The amount can be altered from time to time under section 127 [Upendra, 12 C 535; Ramayee, 14 M 398; Munglo, 2 NWFP 454].

Where the income of the husband was Rs. 1,000/- per month, grant of maintenance of Rs. 500/- p.m. was excessive and only Rs. 300/- p.m. i.e., one-third of income is just and equitable [Sardar Harvindar Singh v Amrit Kaur, 1983 Cr LJ 1390 : 1983 Pat LJR 641 : 1983 BLJ 359 : 1983 Hindu LR 551 (Pat)].

When husband is a petty tailor with meagre income, maintenance of Rs. 150 is not excessive [Veeranna v Sumitrabai, 1990 (1) HLR 265 : 1991 Cr LJ 774 : 1990 (1) Crimes 355 (Kant)].

A maintenance of Rs. 1500/- per month was granted in favour of the wife where the husband was earning Rs. 10,000/- per month as salary, being a constable in the police force in addition to having other sources of income from agricultural properties [Saygo Bai v Cheeru Bajrangi, AIR 2011 SC 1557 : (2010) 13 SCC 762 : (2011) 2 SCC (Cri) 415 ].

Page 42 of 82 [s 125] Order for maintenance of wives, children and parents.— It is not necessary to prove specifically that the wife is unable to maintain herself. If wife pleads that she is surviving with great difficulty, it is sufficient to satisfy the requirement for her claim for maintenance. Since wife’s employment was not proved, she was awarded Rs. 2000/- as maintainable [TP Ashraf v Gausia M, 2007 Cr LJ 700 (Ker) : AIR 2007 (NOC) 727 ]. [s 125.72] Interim maintenance.— In a case, the husband claimed that he had married a particular woman while opposing the case of another female person alleging that she had been married by the former on a particular date. The husband had produced documentary evidence such as voters list, Ration Card, etc. in support of his plea. However, he did not give date or year of such alleged marriage, Held, such omission was vital and grant of interim maintenance placing reliance on documentary evidence produced by wife including official Register of marriage was justified [Kashi Nath Naskar v Aparupa Naskar, 2003 Cr LJ 1201 : 2003 (3) All CrLR 647 : 2003 (2) Cal HN 190 : 2003 (2) Hindu LR 466 : 2003 (2) Rec Cr R 652 (Cal)].

Parties should be given opportunity to adduce evidence [Pendiyala Suresh Kumar v Sampally Arubendu, 2005 Cr LJ 1455 (1456) (Guj) : 2004 CrLR (SC. Mah. Guj) 738 : 2005 (2) DMC 417 ].

Where the wife files copy of entries in Hindu Marriage Register showing her marriage with the husband, but the husband denies his marriage with the plaintiff and alleged to have married another woman, but fails to give date and year of marriage, the plaintiff wife was held entitled to interim maintenance [Kasi Nath Naskar V Aparupa Naskar, 2003 Cr LJ 1201 : (2003) 2 DMC 313 : 2003 (2) Cal HN 190].

The order granting maintenance pendent lite was set aside in the instant case since there was no subsisting marriage between the parties. It was established that the marriage between the parties was dissolved by mutual consent under the customary law (section 29 of the Hindu Marriage Act, 1955) [Kewal Kumar v Pawna Devi, AIR 2011 HP 58 ; Yamanaji H Yadhav v Nirmala, AIR 2002 SC 971 : (2002) 2 SCC 637 ]. [s 125.73] Refusal on the ground of service.— Mere fact that mother is a earning member is no ground to expect her to bear entire burden of maintenance and education of her minor daughter living with her [Monika, 1990 (1) HLR 269 (P&H)].

Wife earning some income is no ground to reject her claim for maintenance [Lalu Suka Penpatil v Leelabai Dhurushirsath, 2007 Cr LJ NOC 36 : 2006 (6) AIR Bom R 103 (Bom)].

If a total sum is fixed for maintenance of wife and children, the order should specify the amount payable to each person [Thumbaswami, 18 Cr LJ 103; Re : Kalavantibai Tekchand Bhavani, AIR 1953 Bom 366 : 1953 Cr LJ 1446 : 55 Bom LR 383]. A Civil Court has jurisdiction to pass a separate order for additional maintenance if it thinks that the amount awarded by the Magistrate is inadequate [Innayani, A 1951 C 603].

Maintenance is a vested right which cannot be taken away [Zahid Ali, (1990) 1 HLR 40 Bom]. [s 125.74] Compromise of petition.— Sometimes the parties come to an arrangement relating to the maintenance of wife or child either before or after an order under this section. Compromise petitions are also sometimes filed embodying terms after an application under the section. With regard to such arrangements, the Criminal Courts have nothing to do. It cannot decide whether there was any agreement nor can it enforce it, if there was any. They are matters for decision in a Civil Court. When there is an application under the section, the duty of the Criminal Court is to see whether the wife or child is in fact being maintained or not and in the latter case to make an order for maintenance. Parties cannot contract out of the statutory obligation under section 125 to maintain children. Lump-sum may under an arrangement be paid for maintenance of child; but if the mother finds that there is nothing left of it, she can come again for an order for maintenance [Mg Tin, AIR 1937 R 246]. A mother cannot enter into any contract binding the child which is not beneficial to it [Hildephonsus, 13 PR 1885].

Page 43 of 82 [s 125] Order for maintenance of wives, children and parents.— When the parties file a petition of compromise stating amount of monthly maintenance agreed (and there is no other extraneous matter), the court can pass an order fixing that amount as maintenance [Ramabai, 1937 WN 640 ; Debjani, AIR 1941 C 588; GD Sundaram v Ratnavathi Ammal, 1955 Andh WR 441 : AIR 1955 NUC 446 (AP); TK Thayumanuvar (Dr.) v Asanambal Ammal, AIR 1958 Mys 190 : 1958 Cr LJ 1522 : 1958 Mad LJ (Cri) 754; Bhagwati, AIR 1935 A 294; Lee, AIR 1933 O 226; Birch, 34 Cr LJ 238—Contra : Hakim, AIR 1930 L 524]. But where the compromise petition besides the rate of maintenance contains matter outside the purview of section 125, e.g., terms as to provision for separate residence, etc., the enforcement of the agreement is a matter for the Civil Court and not the Criminal Court. The application in such a case should be dismissed on the basis that the husband no longer refuses to maintain [Roshan, AIR 1943 L 59; Buddhu, AIR 1926 L 469; Pal Singh, AIR 1932 L 349; Ramsaran, AIR 1934 L 864; Shaabaz, AIR 1945 Pesh 20 ; Sham Singh, AIR 1930 L 524; Raham, 39 PLR 1905; Viramma, 6 M 283; P. Madhavan v Munir Begum, AIR 1954 Mad 513 : 1954 Cr LJ 655 : 1953 (2) Mad LJ 839 : 1953 Mad WN 902; Calbert, 37 Cal WN 736; Ma Khin, AIR 1941 R 46]. When an application for wife’s petition for maintenance is compromised, but without incorporation in the order the terms thereof, it is simply “filed”, a subsequent petition by wife is maintainable [Govindram Narandas v Ratanbai Nathuram, AIR 1956 Sau 105 : 1956 Cr LJ 1437 : 9 Sau LR 217; Budhu, sup; Sham Singh, sup; Kastoori, A 1960 A 446]. In some cases, however, it has been held that a maintenance order on terms agreed to by the parties can be enforced [Ramsaran, A 1937 A 115; Punn Debv Bishnuli, AIR 1950 All 454 : 1950 Cr LJ 961 : 1950 All LJ 351 : 1950 All WR 420; Mangayyamma, AIR 1931 M 185; Btrch, AIR 1933 O 122; Latifannessa, 44 Cal WN 734]. Only that portion of the compromise which can be enforced under section 125 can be given effect to. An agreement to pay maintenance to a mistress cannot be enforced [P Madhavan v Munir Begum, AIR 1954 Mad 513 : 1954 Cr LJ 655 : 1953 (2) Mad LJ 839 : 1953 Mad WN 902]. An order of maintenance based on a compromise that husband and wife should live separately was upheld [Nirmala, 37 Cal WN 538]; so also a maintenance order on a compromise that husband should provide a separate house for wife [Bhagwan, 40 Cr LJ 794]. In a petition by wife for maintenance, the parties by consent agreeing to live separately and husband agreeing to pay Rs. 30 per month for maintenance, the court passed an order to that effect. Husband could not challenge the order in execution as neither sub-section (4) nor sub-section (5) applies [Kalavati v Ausan, 1981 Cr LJ 74 : 1980 UPLR (Cri) 39 : 1981 Mat LR 25 (All)]. Discussing some of the cases, it has been held in Nagpur that the Magistrate’s function is restricted to passing an order as to the amount of maintenance and the order should not embody the restrictive conditions in the compromise which could not be enforced in criminal proceedings [Coelho, AIR 1936 N 228]. If the order on the basis of a compromise is unenforceable, a second application lies under section 125 [Gurdial Kaur v Jang Singh, AIR 1959 Punj 185 : 1959 Cr LJ 516 : ILR (1958) Punj 552 ]. Final order passed in terms of compromise though cryptic is valid and binding on the parties and the wife is entitled to apply for execution under sub-section (3) [Hashim Hussain v Rukaiya Bano, 1979 Cr LJ 1143 : 1979 All Cr C 196 : 1979 All WC 510 (All)].

Any relinquishment by the wife of her claim of maintenance in a Divorce Deed, which is invalid, cannot be enforced in law [Kanshalyabai v Dinkar, 2001 Cr LJ 2292 (Bom); see also, Rajesh v Rita, 2002 Cr LJ 3357 (Pat)]. Where private settlement between the parties was arrived at as regards future maintenance, a subsequent petition for enhancement of maintenance cannot be filed before a Criminal Court either under section 125 or section 127. The remedy lies in Civil Court [Kamatham Venkatamma, 1989 Cr LJ 2416 (AP)]. Jurisdiction of the Magistrate under section 125 is not ousted by any agreement between the parties, especially if it is illusory and if facts and circumstances of the case otherwise justify the grant of maintenance [Hanumant v Laxmanawa, 2000 Cr LJ 4397 (Kant)].

If the proceedings under section 125 of the Code of Criminal Procedure, 1973 ends in compromise which became part and parcel of the final order, then there is no difficulty in executing such an order. The settlement between the spouses, which is superimposed by the order of the court, no doubt, becomes executable. Still, however, there is subtle distinction between such executable order and a term in the compromise petition which allows the maintenance allowance on fulfillment of certain conditions. The wife is entitled to claim such benefit on the ground that it is a part of the agreement, but surely, it is not the order rendered under section 125 of the Code of Criminal Procedure, 1973 and, hence, cannot be executed under section 128 of the Code of Criminal Procedure, 1973. The impugned order, therefore, is unsustainable. The respondent-wife is at liberty to file afresh proceeding under section 125 of the Code of Criminal Procedure, 1973 or to file a suit under section 18 of the Hindu Adoption and Maintenance Act, 1956, as may be permissible and would be found desirable to her [Namdeo Sheshrao Dinde v Sou Rekha Namdeo Dinde, 2008 Cr LJ (NOC) 957 (Bom) : 2008 (4) AIR Bom R 154]. [s 125.75] Modification of the order.—

Page 44 of 82 [s 125] Order for maintenance of wives, children and parents.— In an application for maintenance by the wife against the husband, the order of the court fixing the amount of maintenance on the basis of the compromise filed by the parties in court is an order under section 125 and is executable under section 125. There is nothing in section 127 which takes away the jurisdiction of the court to modify its own order under section 125, though it was passed on the basis of the compromise. The words “without prejudice to the intentions of the parties” in the compromise will not alter the situation. Accordingly, an application by the wife under section 127 for enhancement of the amount of maintenance would be maintainable. [Padmanabhan v Bama, 1988 Cr LJ 1386 , Mad : 1987 Mad LW (Cri) : 1987 (2) DMC 265 : 1987 (2) Hindu LR 542 ]. [s 125.76] Sub-section (1), Explanation (b).— Every divorced wife, otherwise eligible, is entitled to the benefit of maintenance allowance and the dissolution of marriage makes no difference to this right. In the normal course, an order for maintenance must follow [Bai Tahira v Ali Husasin Fissalli Chottia, AIR 1979 SC 362 : 1979 Cr LJ 151 : (1979) 2 SCC 316 ]. The expression “otherwise eligible” cannot be related to the manner in which the wife became divorced, by relating only to indigency and other conditions contemplated in section 125. Accordingly, a wife who became a divorcee by mutual consent by executing a document would fall within the scope of inclusive definition of “wife” and would be entitled to claim maintenance [Padmanabhan Prasadan v Bhargavi Sarojdaini, 1981 Cr LJ 826 : ILR (1981) 1 Ker 232 (Ker); K Shanmu Khan v G Sarojini, 1981 Cr LJ 830 (K)]. Under clause (b), the wife continues to be a wife even though she has been divorced or has otherwise obtained a divorce and has not remarried [Zohara Khatoon v Mohd. Ibrahim, AIR 1981 SC 1234 : (1981) 2 SCC 509 : 1981 Cr LJ 754 (SC)]. Woman obtaining a divorce under Dissolution of Muslim Marriage Act, 1939 continues to be a wife for the purpose of getting maintenance [Zohara Khatoon v Mohd. Ibrahim, AIR 1981 SC 1243 : (1981) 2 SCC 509 : 1981 Cr LJ 754 (SC)]. The two limbs of clause (b) have separate and different legal incidents, one is reflected in section 127 (3) (b) and the other in section 127 (3) (c) [Zohara, sup].

A new statutory right has been created in favour of a divorcee as a projection of public policy by the 1973 Code. No settlement of claims which does not have the special statutory right of the divorcee under section 125 in contemplation can operate to negate that claim. Thus, the consent decree of 1962 resolving all disputes and settling all claims then available between the divorced wife and her husband cannot operate to negate the claim under section 125 [Bai Tahira v Ali Hussain Fissalli Chottia, (1979) 2 SCC 316 : 1979 Cr LJ 151 ]. Compromise deed and divorce deed incorporating a statement by wife that she has no further subsisting rights executed before the coming into force of 1973 Code would not bar her application for maintenance under section 125 [Rabindran Nair v Sakunthala Amma, 1978 Cr LJ 1049 : 1978 Ker LT 246 : 1978 Mad LJ (Cri) 688 (Ker)]. A divorced wife’s claim for maintenance qua wife under explanation (b) continues unless parties make adjustments and come to terms [Ramesh Chanderkaushal v Veena Kaushal, AIR 1978 SC 1807 : 1979 Cr LJ 3 : (1978) 4 SCC 70 : 1978 (3) SCR 782 ]. Wife staying separately in view of a decree of judicial separation under Hindu Marriage Act is entitled to maintenance under section 125 [Bai Ramilaben, (1976) GLR 29 ]. Upon a decree for judicial separation on ground of desertion by wife under section 10, Hindu Marriage Act, the wife is not entitled to maintenance under section 125 [Sharad, 1978 Mah LJ 123 ]. The intent of the insertion of the explanation is manifest and is applicable to divorces effected before or after the coming into force of the Code of 1973 [Tejinder Kaur v Balbir Singh, 1978 Cr LJ 604 : (1978) 80 Punj LR 199 : 1978 Hindu LR 161 (P&H); Rukhsana Parvin v Shaikh Mohd. Hussain, 1977 Cr LJ 1041 : 1977 Mah LJ 231 : 79 Bom LR 123 (Bom); K. Raja Khan v Mumtaz Khatoon, 1976 Cr LJ 905 : 1976 (1) Andh WR 1 : 1975 Mad LJ (Cri) 703 (AP); Mushaque Mandal v Jaysun Bibi, 1977 Cr LJ 484 : 1976 (2) Cal LJ 27 (Cal); Mohammad Haneef v Anisa Khatoon, 1976 Cr LJ 520 : 1976 All WC 89 : 1976 All Cr C 76(All); Mohamad Khan Haneef Khan v Mrhrunnisa, 1977 Cr LJ 923 : ILR (1977) 1 Kant 459 : 1977 Mad LJ (Cri) 180 (Kant)]. A divorced Muslim woman can claim maintenance so long as she remains unmarried even after iddat period against her quondam husband [Khurshid Khan Amin Khan v Husnabanu, 1976 Cr LJ 1584 : 78 Bom LR 240 : 1976 Mad LJ 628 (Bom); Umar Hayatah Khan v Mahaboobunnisa, 1976 Cr LJ 395 : 1975 (2) Kant LJ 495 : 1975 Mad LJ (Cri) 570 (Kant)].

Wife against whom divorce decree has been passed on ground of desertion can still claim maintenance. The word “wife” in section 125 includes a divorced woman and for the grant of maintenance, grant of divorce is not a relevant consideration. The Magistrate, therefore, did not make any error in granting maintenance to the petitioner, a divorced woman [Bishwanth Shah v Sikha Saha, 1986 Cr LJ 1199 : (1986) 90 Cal WN 1073 : 1986 (2) Cal HN 37 : 1986 (2) DMC 321 (Cal)].

Page 45 of 82 [s 125] Order for maintenance of wives, children and parents.— The courts below erred in law in holding that “L” was not married to appellant (since notice was not issued to her and she was not heard), it cannot be said at this stage that the respondent is the wife of the appellant. A divorced wife is treated as wife for the purpose of section 125 of Code of Criminal Procedure, 1973, but if a person has not even married obviously that person could not be divorced. Hence respondent claim to be the wife of the appellant unless it is established that the appellant was not married to “L” [D Velusamy v D Patchaiammal, 2011 Cr LJ 320 (322) (SC) : AIR 2011 SC 479 : 2010 (11) Scale 112 : (2010) 10 SCC 469 : (2011) 1 SCC (Cri) 59 ]. [s 125.77] Meaning of “wife”.— First respondent admitted his marriage with the petitioner (wife). The record showed that all the ceremonies of a marriage between two Hindus were performed. However, respondent’s case was that he was married with the petitioner against his will and by use of force. It was held that it was true that a woman whose marriage is void cannot get the status of a legally wedded wife and is not entitled to maintenance under the section 125 of the Code of Criminal Procedure, 1973. But in such proceedings, all that the wife has to prove is the performance of certain marriage ceremonies and it is immaterial whether the same satisfy all the requirements of a valid marriage. In the absence of a declaration of a competent Civil Court about the legality or otherwise of the marriage between the parties; the lower court should have presumed that the marriage was legal. Therefore, the courts below gravely erred in rejecting the maintenance application of the petitioner (wife). [Sou. Malan v Bala Saheb Bhimrao Gawade, 1989 Cr LJ 675 : 1989 (1) Crimes 491 : 1988 Mah LJ 1135 : 1988 (3) Bom CR 666 (Bom)].

The term “wife” means only legally wedded wife. Hindu woman whose marriage is null and void under section 11 of the Hindu Marriage Act, 1955, for contravention of section 5 (1) of that Act is not entitled to maintenance [Yamunabai Anantrao Adhav v Anantrao Shivram Adhav, 1983 Cr LJ 259 : 1982 (1) Bom CR 724 : 1982 Mah LJ 871 : (1982) 84 Bom LR 298 (Bom); Savitaben Samabhat Bhartiya v State of Gujarat, 2005 Cr LJ 2141 (2143) (SC) : AIR 2005 SC 1809 : 2005 (2) Crimes 1 : (2005) 3 SCC 636 ].

In the case of Muslim women, the Muslim Women (Protection of Rights on Divorce) Act, 1986, though not textually modifying section 125 of Code of Criminal Procedure, 1973 practically makes section 125 inapplicable to divorced Muslim women after the period of Iddat. After Iddat, such a wife can claim maintenance only from certain specified relatives of her own or from the Wakf Board.

In a claim for maintenance, the husband took the plea that he had divorced his wife. Suggestion put for husband to wife in witness box was not communication of divorce. Nor can statement of the husband in witness box, addressed to court, be communication of divorce to wife or someone on her behalf [PM Parred v C Aysha, 1988 Cr LJ 806 : 1988 (1) Ker LT 27 (Ker)].

The expression “wife” used in section 125 of the Code should be interpreted to mean only a legally wedded “wife”. The word “wife”is not defined in the Code except indicating in the Explanation to section 125; its inclusive character so as to cover a divorcee. A woman cannot be a divorcee unless there was a marriage in the eye of law preceeding that status. The expression must, therefore, be given the meaning in which it is understood in law applicable to the parties. The marriage of a woman in accordance with the Hindu rites with a man having a living spouse is a complete nullity in the eye of law and she is, therefore, not entitled to the benefit of section 125 of the Code.

The fact that the wife was not informed about the husband’s earlier marriage when she married him would be of no avail. The wife cannot rely on the principle of estoppel so as to defeat the provisions of the Act. [Yamunabai Anantrao Adhav v Anantrao Shivaram Adhav, AIR 1988 SC 644 : 1988 Cr LJ 793 : (1988) 1 SCC 530 : 1988 (1) Crimes 594 : (1988) 1 SCJ 316 ; Bakulabai v Gangaram, (1988) 1 SCC 537 : 1988 (1) Crimes 587 : (1988) 1 SCJ 437 ].

Marriage may be according to religious rites (invoking the sacred fire and Saptapadi) or customary. Customary

Page 46 of 82 [s 125] Order for maintenance of wives, children and parents.— marriage does not insist on the performance of religious rites [Sumitra Devi v Bhikan Choudhari, AIR 1985 SC 765 : 1985 Cr LJ 528 : (1985) 1 SCC 637 : 1985 (2) Crimes 88 (SC) : (1985) 1 SCJ 48 ]. [s 125.78] Second wife.— Second wife cannot be granted maintenance. Her children, however, can claim maintenance [Khem Chand Om Prakash Sharma v State of Gujarat, (2000) 3 SCC 753 : 2000 SCC (Cri) 748 ].

Second wife marrying during the life time of the first wife, even with her consent, is not entitled to maintenance [Jaipal Ram v State of Bihar, 2009 (3) Pat LJR 346 (Pat)].

In the instance case, the husband took the plea that he did not know the petitioner wife, but it was proved that the parties lived together and also had conjugal relations, it was held that the wife would be entitled to maintenance [Yubaraj Chakma v Nilma Debbarma, 2006 Cr LJ 1357 (1361) (Gau) : 2006 (Supp) Gau LT 350 : 2006 (2) DMC 751 : 2006 (2) Hindu LR 229 ].

Where the husband takes the plea of subsistence of earlier marriage to assail the applicant’s right to claim maintenance under section 125 of Code of Criminal Procedure, 1973, proof and evidence of subsistence of an earlier marriage at the time of solemnizing the second marriage, has to be adduced by the husband taking the plea and it has to be satisfactorily proved by tendering evidence [Pyla Mutyalamma v Pyla Suri Demuda, 2012 Cr LJ 660 (SC) : (2011) 12 SCC 189 : 2011 (9) Scale 403 ]. [s 125.79] Hindu woman living with Christian male.— In a Calcutta case, a Hindu woman was living with a Christian married man and a child was born. It was held that she could not claim maintenance as there being no valid marriage. However, the court directed the man should pay to Rs. 30,000 as damages for his misdeeds. [Ranjit Kumar Bhattacharya v Sabita Bhattacharya, AIR 1996 Cal 301 ]. [s 125.80] Proof of marriage.— Marriage performed according to Hindu rites such as Hastabandhan and Saptapadi during right. It was held that marriage between parties was proved for purpose of petition under section 125. Strict proof of marriage is not necessary [Jemamani Das v Umesh Chandra Panda, 1988 Cr LJ 1041 : (1988) 65 Cut LT 393 (Ori)].

For purpose of section 125 of Code of Criminal Procedure, 1973, standard of proof of marriage is not as high as under the Divorce Act or sections 494, 495, 497 and 498, Indian Penal Code. When marriage is established, maintenance should be awarded, and if legal validity of the marriage is questioned, it should be raised before a Civil Court. It is not open to the Criminal Court to require the wife to first prove the existence of the marriage in a Civil Court and then seek relief under the above Code of Criminal Procedure, 1973 provision. This distinct right is independent of the right which the wife and child may or may not have under the personal law. The husband cannot desert the wife and child by merely denying the relationship [Krishna Kaur v Kartar Singh, 1988 Cr LJ 717 : 1986 Kash LJ 559 : 1986 Marriage LJ 430 (J&K); Tulsi Mahto v State of Jharkhand, 2008 Cr LJ (NOC) 701 : 2008 (1) AIR Jhar R 1008 (Jhar); see also Badshah v Urmila Badshah Godse, AIR 2014 SC 869 : (2014) 1 SCC 188 : 2013 (12) Scale 681 ].

Standard proof of marriage is required for proving an offence. In maintenance case, the fact that parties accepted each other as husband and wife in presence of people sufficiently establishes marriage. Jagdish Rushi Nandeshwar v Shabha Jagdish Nandeshwar, 2006 Cr LJ (NOC) 256 (Bom) : 2006 (3) AIR Bom R 325 (Nagpur Branch) : 2006 (2) Bom CR (Cri) 346 .

Where the evidence on record was enough to make out prima facie case of marriage between the applicant and non-applicant husband, rejection of prayer of applicant wife for maintenance by Magistrate by entering into detailed enquiry about validity of marriage was held not proper. Tajendra Kumar Nath v Mina Rani Nath, 2006 Cr LJ (NOC) 241 (Gau) : 2006 (2) Gau LR NOC 32 .

Page 47 of 82 [s 125] Order for maintenance of wives, children and parents.— In a case where the petitioner-husband disputed his marriage with the opposite party, but in electoral roll, the opposite party was shown as his wife and even in the photo-identity card in place of her husband’s name petitioner’s name was mentioned, the right of maintenance was not denied [Tulsi Mahto v State of Jharkhand, 2008 Cr LJ (NOC) 701 (Jhar) : 2007 (4) JLJR 694 : 2008 (1) AIR Jhar R 1008 : 2008 (64) All Ind Cas 294].

Where there was overwhelming evidence of priest and other witnesses including persons who booked marriage hall and caterer that marriage was performed, husband cannot refuse to maintain his wife on the ground that “Satpadi” was not performed. Dnyaneshwar Govind Kulkarni v Sandhya D Kulkarni, 2006 Cr LJ (NOC) 326 (Bom) : 2006 (3) AIR Bom R 454 : 2006 (1) Bom CR (Cri) 246 .

According to the Explanation below section 125(1) of the Code, wife includes a woman who has been divorced by or has obtained a divorce from her husband and has not remarried. After divorce, there is no question of the woman living with her former husband. It cannot be argued that in view of a decree for divorce obtained by the husband on the ground of desertion, the order of maintenance passed in favour of the wife was liable to be cancelled. The provision in section 125(4) properly interpreted furnishes defence during the proceeding under section 125(1) and the decision of competent Civil Court contemplated under section 127(2) does not take in a decree of divorce [Mangilal v Gitabai, 1988 Cr LJ 1591 : 1988 (1) Crimes 600 : 1987 CrLR (MP) 184; 1988 (1) DMC 30 (MP)].

Where there was finding that the husband had forcibly thrown his out wife and made illegal dowry demand, wife was held to be entitled to claim maintenance. It was further held that prima facie satisfaction of Magistrate that the claimant was legally married was sufficient and strict proof of marriage was not required [Sudha v State of UP, 2008 Cr LJ (NOC) 1130 (All) : 2008 (4) ALJ 477 : 2008 (61) All Cri C 940].

Where there was no evidence to prove marriage according to Hindu rites, the wife was held not entitled to maintenance [Bandu Thakur v State of WB, 2009 (2) Cal LJ 97 (Cal)].

In a proceeding under section 125 Code of Criminal Procedure, 1973, it is not necessary to prove the performance of essential marriage ceremonies. It is sufficient if claimant prima facieshows the court that she and the respondent had been living as husband and wife [Dwarika Prasad Satpathy v Bidyut Prava Dixit, AIR 1999 SC 3348 : 2000 Cr LJ 1 : 1999 SCC (Cri) 1345 : 1999 (4) Crimes 206 (SC); Chanmuniya v Virendra Kumar Singh Kushwaha, 2011 Cr LJ 96 (5)].

Even if there was no proof of legal marriage, the wife was held entitled to maintenance on the ground that there was adequate evidence to prove that the couple gave birth to a child and that even an illegitimate child is entitled to claim maintenance [Solemon v Elizabeth, 2010 Cr LJ (NOC) 560 (Mad)].

Failure to name the priest and the barber who had participated in the marriage is not a ground for disbelieving the factum of marriage [Veena Devi v Ashok Kumar, 2000 Cr LJ 2332 : 2000 (2) Pat LJR 437 : 2000 (1) BLJR 750 (Pat)].

In the instant case, the husband denied the faction of marriage between the parties. The wife adduced evidence that both of them were living together as husband and wife. The evidence of wife was corroborated by the statement her daughter and persons living in and around the area. Husband could not produce any evidence that the petitioner was married to some other person as alleged by him. The wife was entitled to maintenance [Pradeep Kumar Gupta v Kanta Devi, 2003 Cr LJ 1350 : AIR 2003 Jhar HCR 337 : 2003 (55) Chund LR (Civ Cri) 332 : 2003 (2) Marri LJ 86 : 2003 (2) Rec Cr R 646 (Jhar)].

Where the claim for maintenance was resisted by the husband on the ground that the marriage between him and the applicant-wife was void, because of subsisting earlier marriage, but the applicant-wife had no-where

Page 48 of 82 [s 125] Order for maintenance of wives, children and parents.— admitted the subsistence of a valid marriage, which would render her marriage illegal. The requirement to prove that earlier marriage subsisted when marriage with applicant-wife was solemnised is not disposed with and the mere statement that the husband is living with another woman as husband and wife cannot persuade the court to hold that the marriage duly solemnised between the applicant-wife, and the husband suffers from any legal infirmity. The entries in the insurance policy and the family identity card issued to husband by his employer showing that husband had an earlier wife are not conclusive of the subsistence of a valid marriage between the husband and his earlier wife. These documents by themselves cannot prove any marriage or the subsistence of a valid marriage when the marriage with the applicant-wife was solemnised [K Vimala v K Veeraswamy, 1991 (1) SCR 904 : 1991 (2) SCC 375 : 1991 (1) Crimes 828 (SC)].

For an application under section 125 of Code of Criminal Procedure, 1973, prima facie proof of marriage. Facts that wife’s signature is not properly proved does not take away the Magistrates jurisdiction [Zulekha Khatoons v The State, 2000 Cr LJ 3416 : 2000 (3) Crimes 336 : 2000 (3) Pat LJR 693 : 2000 (2) BLJR 1219 (Pat)].

Validity of marriage is not a ground for refusal of maintenance to wife. Foundation for payment is existence of conjugal relationship [Amit Agarwal v State of UP, AIR 2007 NOC 441 : 2007 (1) ALJ 277 (All); Rahiman-ePyari v Kumari, (2007) 1 Mad LJ (Cr) 547 (Mad)].

Living together as man and wife can constitute proof of marriage for the purposes of section 125. But where even that proof is not forthcoming, the court cannot pass an order under section 125 of Code of Criminal Procedure, 1973 [Lata Devi v Bishnu Charan Panda, 1996 Cr LJ 156 : 1996 (1) Rec Cr R 205 : 1996 (1) Hindu LR 328 (Ori)].

Both petitioner and claimant had lived under same roof for a long period and petitioner had admitted cohabitation between them without any legal marriage but he could not produce maintenance order granted to first wife. Finding regarding existence of legal marriage between claimant and petitioner was not perverse. It was held that order of granting maintenance to claimant was not unjustified [TK Ramakrishnan v CN Subadra, 2007 Cr LJ 4212 (Ker) : 2007 (2) Ker LJ 442 ]. [s 125.81] Maintenance—Proof of valid marriage.— Where the respondent had gone through the rituals of marriage with petitioner and thereafter lived with her as husband and wife. Petitioner cannot be denied the status of wife and voiding marriage of petitioner with respondent for denying maintenance is unreasonable [Shantawwa v Basappa Gurappa Roogi, 2007 Cr LJ (NOC) 130 : 2007 (1) AIR Kar R 155 (Kant)].

Marriage of wife was proved by evidence and Trial Court recorded reasons for discarding evidence of witnesses produced by husband. Factual finding entitling wife for maintenance cannot be interfered with [Adalat Sahish v Smt. Arudhi Devi, 2007 Cr LJ (NOC) 155 : 2007 (1) AIR Jhar R 480 (Jharkhand)].

Once prima facie marriage is proved, the husband cannot take plea that he was not validly married. Where both the parties had lived together as husband and wife marriage would be presumed even in the absence of essential Hindu rites at the time of marriage [Krishan Pal Singh v Babli, 2009 Cr LJ (NOC) 1116 (HP)].

If the claimant is proceedings under section 125 of Code of Criminal Procedure, 1973 succeed in showing that she and the respondent lived together as husband and wife, the court can presume that they are legally wedded spouses and in such a situation, the party who denies the marital status can rebut the presumption [Rahiman-e-Pyara v Kumari, (2007) 1 Mad LJ (Cr) 547 (Mad)].

Section 125 proceeds on basis of de facto marriage and not on marriage de jure. Validity of marriage not a ground for refusal of maintenance to wife [Amit Agarwal v State of UP, AIR 2007 NOC 441 : 2007 (1) ALJ 277 (All) : 2007 Cr LJ 108 (All)].

Page 49 of 82 [s 125] Order for maintenance of wives, children and parents.— Granting maintenance simply because the petitioner and the opposite party lived together is not proper, especially when the opposite party has a legally married wife [Mathi v State, 2000 Cr LJ 4170 : 2000 All LJ 2116 : 2000 (28) All Cr R 1329 (All)].

Where the petitioner and the respondent had lived together for years and a child was born, it is sufficient proof of marriage [Mallika v Kulandai, 2000 Cr LJ 142 : 1999 Mad LJ (Cri) 706 : 2000 (2) Hindu LR 128 (Mad)]. [s 125.82] Proof of marriage of his wife with another person.— A husband refuting the claim of maintenance of a divorced wife on the ground that she has been remarried has a heavy burden on him to strictly prove that the wife had married with a man, giving necessary particulars of such man to locate him and has started living with such man [Gomti v Rama Nand, 2007 Cr LJ (NOC) 410 : 2007 (3) ALJ 342 ]. [s 125.83] Proof of first marriage.— In a case where the husband did not produce satisfactory proof of first marriage with another woman and the first wife and the witnesses who participated in the first marriage were not examined, it was held that the wife would be entitled to maintenance [Parvaleva v Shivayya, 2004 Cr LJ (NOC) 317 (Kant) : 2004 AIR Kant HCR 3253 : 2005 (25) All Ind Cas 782].

See also Topic “Marriage subsisting.” [s 125.84] Conduct of parties plays a dominant role in maintenance case.— On two earlier occasions, when application for maintenance was filed by wife, the parties compromised and no issue about the legality of marriage was raised. On the second occasion, further as the parties agreed to behave properly, there was no change in the behaviour, another application was filed and for the first time the husband made averment in his reply that wife was not a legally wedded wife. He led evidence of two witnesses. The husband had not taken the plea of legality of marriage on earlier two occasions. It was held that the oral evidence would not prevent over the compromise entered into between the parties on two occasions. Wife was entitled to maintenance. Rajlingu Pentu Parkewar v Sayamabai Rajlingu Parkewar, 2006 Cr LJ 3710 (3711) (Bom) : I (2007) DMC 396 . [s 125.85] Sub-section (2)—Date of effect of order.— Section 125 of the Code of Criminal Procedure, 1973 impliedly requires the court to consider making the order for maintenance effective from either of the two dates, having regard to the relevant facts. For good reason, evident from its order, the court may choose either date. It is neither appropriate nor desirable that a court simply states that maintenance should be paid from either the date of the order or the date of the application in matters of maintenance. Thus, as per section 354(6) of the Code of Criminal Procedure, 1973, the court should record reasons in support of the order passed by it, in both eventualities. The purpose of the provision is to prevent vagrancy and destitution in society and the court must apply its mind to the options having regard to the facts of the particular case [Jaiminiben Hirenbhai Vyas v Hirenbhai Rameshchandra Vyas, 2015 Cr LJ 608 (SC) : AIR 2015 SC 300 : 2014 (13) Scale 104 : (2015) 2 SCC 385 ].

In Shail Kumari Devi v Krishan Bhagwan Pathak, the Supreme Court dealt with the question as to from which date a Magistrate may order payment of maintenance to wife, children or parents. The Supreme Court considered a catena of decisions by the various High Courts, before arriving at the conclusion that it was incorrect to hold that, as a normal rule, the Magistrate should grant maintenance only from the date of the order and not from the date of the application for maintenance. It is, therefore, open to the Magistrate to award maintenance from the date of application. The court held that if the Magistrate intends to pass such an order, he is required to record reasons in support of such order. Thus, such maintenance can be awarded from the date of the order, or, if so ordered, from the date of the application for maintenance, as the case may be. For awarding maintenance from the date of the application, express order is necessary [Shail Kumari Devi v Krishan Bhagwan Pathak, (2008) 9 SCC 632 : AIR 2008 SC 3006 : JT 2008 (8) SC 227 : 2008 (10) Scale 602 ; also see Bhuwan Mohan Singh v Meena, AIR 2014 SC 2875 : 2014 (8) Scale 573 : (2015) 6 SCC 353 : 2014 (6) SCJ 551 ].

Page 50 of 82 [s 125] Order for maintenance of wives, children and parents.— Where the wife and children were living separately, the maintenance granted from the date of filing of application was held not illegal [S Suresh v Jaya Shree, 2009 Cr LJ (NOC) 994 (Mad)].

While allowing maintenance from the date of application what is required is to express order, and the special reasons need not be given [Kamruddin v State of UP, 2010 Cr LJ (NOC) 291 (All)].

Magistrate should award maintenance from the date of application and not from the date of the order. [Makhdum Ali v Nargis Bano, 1982 Cr LJ 111 : 1983 (1) Crimes 933 : (1983) 23 DLT 100 (Del)].

Where the maintenance allowance was made effective from the date of application without recording any reasons, order of allowing maintenance from the date of application was held to be erroneous. [Raju v State of UP, 2010 Cr LJ (NOC) 1201 (All) : 2010 (4) ALJ 473 ].

The order will remain in force so long as marriage continues and none of the disqualifying causes in subsection (5) exists, or divorce is proved plus certain further facts besides divorce as have been discussed in the notes to section 127 under the heading “Change of Circumstances”. This is no scope for granting interim maintenance pendente lite [Bano v Abdul Salam, 1981 Cr LJ (NOC) 44 : 1980 Raj LW 481 : 1980 WLN (Raj) 426 (Raj)].

Until the original order for maintenance is modified or cancelled by a higher court or is varied or vacated in terms of section 125(4) or section 127(5), its validity survives. No plea that there has been cohabitation in the interregnum or a compromise can hold good as a valid defence [Bhupinder Singh v Daljit Kaur, AIR 1979 SC 442 : 1979 Cr LJ 198 : (1979) 1 SCC 352 (SC); Fazal Din, AIR 1932 L 115rel. on]. It abates on the death of respondent and cannot be enforced against his estate [Eady, 41 C 88; Ambadas Bajirao v Annapurna Bai, AIR 1953 Ngp 248 : 1953 Cr LJ 1267 : 1953 Nag LJ 229 ]. Right to receive maintenance is a purely personal right; no charge is created on any property. Arrears of maintenance are not either a debt or saleable property within section 60 of Code of Civil Procedure, 1908 [Giribala, 39 Cal WN 281].

According to one view, maintenance from date of application can be refused only for valid reasons [Sharda, (1990) 1 HLR 410 (Bom); Kamalaben Khanderao Zhole, (1990) 1 HLR 382 Bom].

According to the passed order, the awarded maintenance either shall be paid to entitled parties from the date of order or from the date of application [Lokesh Parmeswar Uchil v Lekha Lokesh Uchil, 1995 Cr LJ 1661 (Ker) : 1995 (3) RCR (Criminal) 156].

It depends upon the discretion of the Trial Court that from which date the award of maintenance is to be passed. Either from the date of application or from the date of order but where question concerning the present case arose, according to facts circumstances of the case to allow the maintenance from the date of application held to be justified [Nachhattar Singh v Harzinder Kaur, 1995 Cr LJ 2726 (P&H)].

It is the discretion of the court to grant maintenance either from date of order or from date of application. [Dasyam Elizabeth Kani v Dasyam Pradeep Kumar, 2001 Cr LJ 47 : 2000 (2) Andh LT (Cri) 382 (AP)].

Section 125 of Code of Criminal Procedure, 1973 does not require the Magistrate to give separate reasons, if he allows interim maintenance from the date of application [Shahbuddin v State of UP, 2006 Cr LJ (NOC) 57 : 2006 (1) All LJ 372 (All) : 2006 (54) All Cri C 637 : 2006 (1) DMC 626 ].

Where no maintenance had been paid by the husband to the wife prior to filing of the application under section

Page 51 of 82 [s 125] Order for maintenance of wives, children and parents.— 125 of Code of Criminal Procedure, 1973 or during the pendency of the application, grant of maintenance from the date of the application was held proper [Harish Chandra Yadav v Usha, 2008 Cr LJ (NOC) 416 : 2008 (1) ALJ 684 (All) : AIR 2008 (NOC) 1105 ].

Direction to the husband to pay maintenance from the date of the application was held proper where the couple was recently married and the husband had not paid anything towards maintenance so far [Manoj OK v M Sindhu, 2007 Cr LJ (NOC) 2 (Ker)]. [s 125.86] Sub-section (3) Enforcement of Order.— Sub-section (3) refers to the enforcement of order passed under sub-section (1) Non-payment “without sufficient cause” is sufficient. One view is that the failure of the husband to apply under section 127 or to obtain a cancellation under sub-section (5) does not stand in the way of the consideration of his objection to execution on account of adultery, etc., in sub-section (4), and the Magistrate is bound to consider the sufficiency of the cause alleged [Theetharappa, AIR 1925 M 715 : 26 Cr LJ 953; Suryanarayana, AIR 1943 M 416; Kamala Sundari Dassi v Nilmony Das, AIR 1953 Cal 343 : 56 Cal WN 843 : 1953 Cr LJ 814 ; Hari Narayan v Rani Devi, AIR 1952 MB 53 : 1952 Cr LJ 574 ; Khardekar, AIR 1942 B 258; Rukmini, AIR 1943 AP 407 ; State of Mysore v Sivashankar Murigeppa Mamdadpur, AIR 1966 Mys 173 : 1966 Cr LJ 779 : 1965 (2) Mys LJ 512 ]. The other view is that when execution is taken out, sub-section (4) does not govern by sub-section (3) and the pleas in sub-section (3) which is intended to stop a court from too readily accepting that as soon as a husband offers to maintain his wife if she lives with him, he ceases to neglect or to refuse to maintain her [Ram Kishore v Bimla Devi, AIR 1957 All 658 : 1957 Cr LJ 1052 (all cases reviewed)]. The latter view is supported on the principle decided in many cases that once a maintenance order has been passed by a competent court, it stands good until it is cancelled under sub-section (5) or is modified under section 127 [see Bhag Sultan, AIR 1930 L 99 : 30 Cr LJ 719; Taribala, 39 Cr LJ 357 : AIR 1938 C 144; Mohbuban, 15 A 143; Budhni, 27 A 11; Kanagammal, AIR 1927 M 376 : 28 Cr LJ 271]. The principle is analogous to the rule of [res judicata see Laraiti, 5 A 224].

When the enforcement and execution of an order passed under a statute is contemplated by the statute itself, normally, an aggrieved litigant has to take recourse to the remedy provided under the statute. The fact that the husband against whom the order of maintenance is required to be enforced lives outside the territory of India, in our considered view, cannot be a reasonable basis for invoking the extraordinary remedy under Article 32 of the Constitution inasmuch as the provisions of the Code, i.e. section 105 makes elaborate provisions for service of summons in case the person summoned by the court resides outside the territory of India [Bhaskar Lal Sharma v Monica, (2014) 3 SCC 383 : 2014 Cr LJ 1848 (SC)].

When an order granting maintenance to the wife was passed, it was held that the execution court had no power of withholding execution on a finding of its own that the petitioner wife has been divorced by the husband [Sadik Mahaboob v State of AP, 2003 Cr LJ 2199 : 2003 (1) Andh LD (Cri) 414 : 2003 (3) Crimes 507 : 2003 (2) DMC 91 (AP)].

The words “without sufficient cause” obviously refer to the Explanation for carrying out the order to pay maintenance. The validity of the order cannot be challenged [Robin Richard v Mercy Richard, AIR 1959 Pat 489 : 1959 Cr LJ 1206 : 1958 BLJR 538 ], and Magistrate cannot consider those very questions which could be raised or which were decided when claim for maintenance was upheld [Gupteshwar Pandey v Ram Peari Devi, AIR 1971 Pat 181 : 1971 Cr LJ 774 : 1971 BLJR 982 ].

Imprisonment for a term due to failure of the husband ordered to pay maintenance for earlier period without sufficient cause cannot absolve the husband of his liability of maintenance, particularly when he is able-bodied [Ajith Kumar v Sharma, 2010 Cr LJ (NOC) 558 (Ker)].

Where a total sum is ordered as maintenance for wife and child, wife’s maintenance cannot be enforced if the child dies or comes of age and a fresh application for wife should be made [Thambusamy, 18 Cr LJ 103; Ma Khi, AIR 1941 R 46]—Contra : It is open to the court to modify the order under section 128 fixing wife’s maintenance [Re : Kalavantibai Tekchand Bhavani, AIR 1953 Bom 366 : 1953 Cr LJ 1461 : 55 Bom LR 383; Hazara Singh Natha Singh Ramdasia v Sant Kaur, AIR 1957 Pep 24 : 1957 Cr LJ 1448 (1)].

Page 52 of 82 [s 125] Order for maintenance of wives, children and parents.—

Preventing victim from reaping benefits of order of interim maintenance is economic abuse and the same amounts to commission of offence and is punishable under provision of section 31 of Domestic Violence Act, 2005 [Vincent Shanthakumar v Smt. Christina Geetha Rani, AIR 2015 (NOC) 557 (KAR)].

It is within the power of the Magistrate to direct recovery through warrant against the husband for the period for which he had already been confined in jail [Dilshad Haji Risal v State of UP, 2006 Cr LJ 228 (230) (All) : 2005 All LJ 3416 : (2005) 53 All CrC 680].

On default in payment of maintenance for several months by the husband, he can be awarded imprisonment for more than one month. It cannot be said that imprisonment for more than one month cannot be awarded even if maintenance may have been in arrears for more than one month. [Ram Bilas v Bhagawati Devi, 1991 Cr LJ 1098 : 1991 All LJ 362 : 1991 (2) Rec Cr R 277 (All)]. The language of sub-section (3) of section 125 is quite clear and it circumscribes the power of the Magistrate to impose imprisonment for a term which may extend to one month or until payment, if sooner made. This power of the Magistrate cannot be enlarged [Shahada Khatoon v Amjad Ali, 1999 Cr LJ 5060 : (1999) 5 SCC 672 : 1999 SCC (Cri) 1029 : 2000 (1) Crimes 12 (SC); Md. Jehangir, Re, 2005 Cr LJ 237 (Cal)].

Where the husband objects to order of maintenance and offers to maintain his wife on condition of her living with him, the Magistrate would first decide the objections, and issuance of recovery warrant against husband is not proper [Dilshad Haji Risal v State of UP, 2006 Cr LJ 228 (All) : 2005 All LJ 3416 : (2005) 53 All CrC 680].

Merely sentencing the defaulting party to jail imprisonment does not wipe off the arrears which were outstanding against the petitioner on the two occasions when he was sent to jail. The defaulted arrears continued to be the liability of the defaulting petitioner. Therefore, it appears that right from the time the ex parte order was passed in 1979 the petitioner had not paid any amount towards the arrears and remains a defaulter for a huge amount and which liability subsists in spite of the two jail imprisonments [Ashok Yashwant Samant v Superna Ashok Samant, 1991 Cr LJ 766 : 1990 Mah LJ 963 . (Bom); Rajan Kutty v State of Kerala, 2008 Cr LJ (NOC) 945 (Ker)].

Section 125(3) does not empower the Magistrate to cancel the order of maintenance. Cancellation can be ordered only under section 125(5) or section 127. Under section 125(4), the wife is only disentitled to maintenance if her grounds for living separately are not sufficient. But section 125(3) does not contemplate cancellation of the order [J Srinivasa Rao v J Rajeswar, (1990) Cr LJ 2506 : 1989 (2) Andh LT 295 : 1989 (1) LS (AP) 313 : 1989 (2) DMC 488 (AP)].

Non-payment of maintenance can be enforced by issue of a process as for levying fines (see section 421) or imprisonment. Issue of process without first notice to show cause and holding an inquiry is illegal [Laxmi Narain v State, AIR 1959 All 556 : 1959 Cr LJ 1039 : 1959 All LJ 350 : 1959 All Cr R 270]. If immovable property is to be attached, the warrant is to be sent to the collector under section 421(1)(b) [Labh, AIR 1941 L 360]. Sentencing a defaulter to imprisonment before issue of a warrant of levy of the amount as fines is in violation of section 125 (3) [Basanta Kumar Swain v Sumati Swain, 1983 Cr LJ 1384 : 1983 (2) Crimes 345 : (1983) 55 Cut LT 351 : 1983 Hindu LR 539 (Ori)]. Sentencing straightway to term of imprisonment without first applying mode of realisation under section 421 is improper [K Nithiyanandan v B Radhamani, 1980 Cr LJ 1191 : 1980 Ker LT 537 : ILR (1980) 2 Ker 353 (Ker); Raghavan v Ponnu, 1981 Cr LJ (NOC) 75 (Ker)—Contra : Order for imprisonment can be passed without first issuing distress warrant for levying the amount [Bhure v Gamatibai, 1981 Cr LJ 789 : 1981 MPLJ 277 : 1981 Jab LJ 437 (MP)]. Enforcement for arrears cannot be refused merely because opposite party makes part payment and promises to give land [Multan, 37 Cr LJ 347]. The first thing that must be done is to issue distress warrant and it is only for the amount that remains unpaid after such warrant that imprisonment may be awarded [Mg Tun, AIR 1941 R 247; Jagannath Patra v Purnamashi Sarat, AIR 1968 Ori 35 : 1968 Cr LJ 335 : 33 Cut LT 809]. A third party (e.g. defendant’s mortgagee) cannot be directed to pay maintenance on behalf of defendant [Lalit, 35 Cal WN 692]. Where salary of defaulting husband is to be attached, the provisions of section 42 (1)(b) have to be followed [Rajendra Nath Ghose v Brojabala

Page 53 of 82 [s 125] Order for maintenance of wives, children and parents.— Ghose, AIR 1956 Cal 135 : 1956 Cr LJ 527 ]. Warrant of attachment of future salary is not permissible [Ali Khan v Hajrambi, 1981 Cr LJ 682 : 1981 Mah LR 158 (Goa)]. As to any agreement between the parties after the maintenance order [see notes to sub-section (2) above and section 128 post].

In the instant case, since the Gram Panchayat was empowered to levy fine of Rs. 100 only, it was held that it would not be able to issue a warrant for levying the amount due in the manner provided for laying fines, if the amount of arrears of arrears of maintenance is more than Rs. 100/-. The only course left for it was to forward the order for execution to the Judicial Magistrate in whose jurisdiction it is situated [Padma v Surat Ram, 2003 Cr LJ 237 (241) : 2003 (1) DMC 483 : 2003 (1) Hindu LR 523 : 2003 (1) Rec Cr R 856 : 2002 (2) Shim LC 234 (HP)].

Application for issuance of warrant which was filed within one year from the date the amount became due was kept alive and it was pending although. The purpose of filing subsequent application was only to mention the amount due up-to-date. The fact that the additional amount was specified in the subsequent application does not means that the application for execution of the order by issuing a warrant under section 125(3) was a fresh application made for the first time. Such application is only supplementary and incidental to the petition already filed, admittedly within period of limitation and is not barred by limitation [Shantha alias Ushadevi v BG Shivananjappa, AIR 2005 SC 2410 : 2005 Cr LJ 2615 : (2005) 4 SCC 468 : 2005 (2) Crimes 225 (SC)].

Family Court has jurisdiction to pass an order granting maintenance and execute it in terms of sections 7 and 8 of the Family Court Act [Ramesha v (Smt.) Mallamma, 2007 (1) Crimes 254 (Kant)]. [s 125.87] Arrest warrant for recovery of maintenance amount.— The respondent wife had to make herculian efforts to have the petitioner served in the execution proceedings and that the petitioner husband had avoided the service of notice and it became inevitable for taking out arrest warrant in the name of the petitioner for satisfaction of maintenance order. Ramesha v Mallamma, 2006 Cr LJ 4811 (4812) (Kant).

No warrant of arrest can be issued for recovery of time-barred maintenance [Laxman Singh v State of Uttranchal, 2008 Cr LJ (NOC) 946 (Uttr) : AIR 2008 (NOC) 1864 ]. [s 125.88] Failure to pay maintenance: Imprisonment.— A person against whom an order under section 125(3) of the Code is made does not become liable to imprisonment on passing of an order of maintenance, his liability to suffer imprisonment only starts if he fails to respond to a warrant issued under section 125(3) of the Code for payment of maintenance. A warrant has to be issued under section 125(3) of the Code for payment of maintenance, when an application is made by the person who has been held to be entitled to maintenance under section 125 of the Code. When such a warrant is issued for making payment of maintenance, it has to be levied as the amount due in the manner provided for levying fines and if this warrant is not responded by making the payment, then the Magistrate can order imprisonment and the imprisonment in no case can exceed one month. Therefore, it is immaterial whether there were arrears of 12 months or of any other duration. The material question is whether a warrant under section 125(3) has been issued or not and in case of one warrant issued under section 125(3) of the Code, there can only be one imprisonment and the maximum imprisonment would be one month. So in case a person chooses to file an application under section 125(3) of the Code on every successive month on failure to get maintenance, she may get successive orders of imprisonment if the person against whom the warrant is issued fails to make the payment. But if a person chooses to make an application after several months, then again she will be able to get an order of imprisonment on failure to make the payment which will be only a maximum imprisonment of one month [Sekar v State of TN, 2004 Cr LJ 1279 : 2004 Mad LJ (Cri) 766 (Mad)].

The expression “imprisonment” in section 125(3) of Code of Criminal Procedure, 1973 must receive a more liberal and humane interpretation consistent with the constitutional ideals so as to avoid the consequence of subjecting such a defaulter to the ordeal of rendering involuntary hard labour for the mere indiscretion of failure/refusal to make payment of the maintenance amount. The principle underlying section 67 of the Indian Penal Code, 1860 must certainly be imported while attempting to understand the contours of the expression “imprisonment” in section 125(3) of Code of Criminal Procedure, 1973 [Moideen Kutty Kunha Kutty Haji v State

Page 54 of 82 [s 125] Order for maintenance of wives, children and parents.— of Kerala, 2008 Cr LJ 3402 (3406, 3408) (Ker) : 2008 (3) Ker LT 8 : 2008 (2) Ker LJ 741 ; Laxman Singh v State of Uttranchal, 2008 Cr LJ (NOC) 946 (Uttr) : AIR 2008 (NOC) 1864 ].

For non-payment of arrears of maintenance by husband, Magistrate can sentence him for a period of one month only. He has no power to detain a person for more than one month at a stretch [Ravichandran v Saraswathi Utlamapalayam Hasavanaickenpath Velkonl, 2010 Cr LJ (NOC) 83 (Mad)]. [s 125.89] Ex parte order of maintenance.— When the marriage between parties was not established, and it was admitted that at the time of marriage, wife was pregnant, ex parte order of maintenance against husband without providing an opportunity of hearing was improper. Ajay Kumar v State of UP, 2006 Cr LJ (NOC) 449 (All) : 2006 (5) All LJ 241 : 2006 (2) All CrC 887. [s 125.90] Section 125(3)—Proviso.— Arrears beyond a period of one year from the date on which the amount became due, cannot be recovered. [Ganga Prasad v Gomti, 2000 Cr LJ 3914 : 2000 All LJ 1911 : (2000) 40 All Cr C 998 (All) (SK Agarwal J.); B.G. Shivananjappa v Shantha, 2004 Cr LJ 2455 : AIR 2004 Kant HCR 1550 : 2004 (3) All CrLR 895 : 2005 All MR (Cri) 29 : 2004 (2) Hindu LR 281 : 2004 (5) Kant LJ 289 (Kant)].

The proviso to section 125(3) of the Code of Criminal Procedure, 1973 is not a fetter on the entitlement of the claimants to receive arrears of maintenance beyond a period of one year preceding the date of filing of the application under section 125(3) of the Code. The same does not create a bar or in any way effects the entitlement of a claimant to arrears of maintenance. What the proviso contemplates is that the procedure for recovery of maintenance under section 125(3) of the Code, namely, by construing the same to be a levy of a fine and the detention of the defaulter in custody would not be available to a claimant who had slept over his/her rights and has not approached the court within a period of one year commencing from the date on which the entitlement to receive maintenance has accrued. However, in such a situation, the ordinary remedy to recover the amount of maintenance, namely, a civil action would still be available [Poongodi v Thangavel, AIR 2014 SC 24 : 2013 Cr LJ 5006 (SC): (2013) 10 SCC 618 ].

Warrant of arrest cannot be issued for recovery of maintenance of allowance which has become timebarred [Laxman Singh v State of Uttaranchal, 2008 Cr LJ (NOC) 946 (Uttr) : AIR 2008 (NOC) 1864 ]. [s 125.91] Attachment of salary and assets.— “Movable property” must be given wide interpretation and salary cannot be excluded from its category. Therefore, salary of the husband can be attached under section 125 (3) for payment of maintenance to the wife [Re :Yerasuri Lakshminarayana Kurthy, 1986 Cr LJ 1846 (AP)].

Recovery of arrears of maintenance by issue of warrant for attachment of salary is permissible [Ahmed Pasha v Wajid Unissa, 1983 Cr LJ 479 : 1983 (1) APLJ 42 (AP); Baldevi v Ramnath, AIR 1955 Raj 61 : 1955 Cr LJ 621 : 1956 Raj LW 16 : ILR (1955) 5 Raj 382 ; Ali Khan v Hajrambi, 1981 Cr LJ 682 (Goa) dissented)].

An order of adjudication in insolvency or a protection order is not in itself conclusive of the defendant’s inability to pay the maintenance. The question is one of fact to be decided by the Magistrate and if he finds that there is no sufficient cause for non-compliance, he can proceed under sub-section (3). The protection in the Insolvency Act refers to arrest or detention of a debtor under an order of a Civil Court and it does not apply to his being proceeded against in a Criminal Court [see Radharani, AIR 1940 C 569 : 42 Cr LJ 250; Md. Hussein, AIR 1940 B 344 : 42 Cr LJ 101; Muni Krishanyya, AIR 1940 M 697 : 41 Cr LJ 785; Shyama Charan, AIR 1938 A 253; Emperor v Amir Khan, AIR 1948 Nag 416 : (1948) 49 Cr LJ 592 : 1948 Nag LJ 228 : ILR (1948) Nag 387 ; Kochukunja Narayanan v Kinjali Sarojakshi, AIR 1957 Trav-Co 49 : 1957 Cr LJ 392 : 1956 Ker LT 638 ]. The contrary view in Tokee Bibee, 5C 536 and Yahia, AIR 1936 M 793 is no longer a good law.

The estate of the husband cannot be burdened with the enforceability of the maintenance order under the Code of Criminal Procedure, 1973 for any period beyond the date of the husband’s death, but the order is

Page 55 of 82 [s 125] Order for maintenance of wives, children and parents.— enforceable against it for the period till the husband’s death. [Prithviraj Singh v Pavanvir Kaur, 1986 Cr LJ 1432 : 1986 Marri LJ 169 : ILR (1986) 2 P&H 205 (P&H)]. [s 125.92] Warrant and Imprisonment.— The period of imprisonment in default of payment is one month for each month’s arrears and another month for the balance of the arrears for a portion of a month. [s 125.93] Default in making payment.— Accused can be sentenced to maximum imprisonment of one month for default in making payment of maintenance [Alora Sundaran v Mammali Sumathi, AIR 2007 (Doc) 27 (Ker) : 2006 (4) / RCR (Civil) 182 : (2000) Cr LJ 3893 (All) dissented).

There may be one warrant for arrears of several months [Allapichai, 20 M 3; Bhiku, 25 C 291; Beni, AIR 1938 A 386 FB; Sardar, 37 Cr LJ 207; Ma Tin, AIR 1941 R 135; King Emperor v Budhoo Mandal Gond, AIR 1949 Nag 269 : (1949) 50 Cr LJ 673 : 1949 Nag LJ 51 ; Kantappa v Sharanamma, AIR 1967 Mys 81 : 1967 Cr LJ 783 : 1965 (2) Mys LJ 117 ] subject to a maximum of 12 months [Moddari Bin v Sukdeo Bin, AIR 1967 Cal 136 : 1967 Cr LJ 335 : 70 Cal WN 686; Jagannath Patra v Purnamashi Saraf, AIR 1968 Ori 35 : 1968 Cr LJ 335 : 33 Cut LT 809]. The imprisonment ceases upon payment of the arrears [Gyanada, 22 C 291]. It may be simple or rigorous [General Clauses Act, section 3 (27); Narain, 9 A 240]. A person suffering imprisonment for failure to pay certain arrears cannot be sentenced to imprisonment a second time for default in respect of the same arrears [Mg Ky, 10 R 176; Mg Tun, AIR 1941 R 247 : 1941 Rang LR 403]. No notice to show cause is necessary before issuing warrant [Moddari, sup]. Magistrate can sentence defaulter after execution of warrant even if warrant is infructuous [Moddari, sup]. Where husband does not show cause, to order imprisonment, the court is not bound to enquire into cause of husband’s failure [Ratilal Jivan v State of Gujarat, AIR 1971 Guj 124 : 1971 Cr LJ 611 : (1971) 12 Guj LR 343]. [s 125.94] Power to sentence.— In the matter of non-payment of maintenance by husband, Magistrate can only sentence him for a period of one month or until payment of some mode. Power to impose sentence cannot be enlarged. Magistrate cannot impose sentence continuing him in custody until payment is made. For breach of order wife can approach Magistrate again for similar relief [Shahada Khatoon v Amjad Ali, 1999 Cr LJ 5060 : (1999) 5 SCC 672 : 1999 SCC (Cri) 1029 : 2000 (1) Crimes 12 ]. Sub-section (3) confers two independent powers: (i) to issue a warrant and (ii) to sentence the person also. The power to sentence is not dependent on the issue of the warrant. The power is in respect of the whole or any part of each month’s allowance remaining unpaid to sentence the person for a term not exceeding one month. Two month’s imprisonment for non-payments of four months’ allowance is legal [Karson Ramji Chawda v The State of Bombay, AIR 1958 Bom 99 : 59 Bom LR 136 FB : 1958 Cr LJ 351 ]. In K Nithiyanandan v B. Radhamani, 1980 Cr LJ 1191 : 1980 Ker LT 537 : ILR (1980) 2 Ker 353 (Ker) it has been held that the issue of a warrant for the levy of the amount due is a condition precedent to the sentencing of the defaulter to imprisonment and the observation in Kurson, sup, in this regard is obiter dicta [See also comments on section 128]. [s 125.95] Proviso 1 to sub-section (3)—[Limitation].— It provides limitation for the recovery of arrears [Chetibai, AIR 1938 section 151]. Where an application made within a year is dismissed for default, another application may be granted although made after one year mentioned in the proviso [Kirparam Chhotan Raat v Kalibai, AIR 1960 MP 241 : 1960 Cr LJ 1093 (1) : 1960 MPLJ 613 : 1960 Jab LJ 441 ]. Application for four months’ arrears was closed as defendant could not be traced. Second application for fifteen months from starting date of the first application is maintainable [U Hpay, AIR 1935 R 407]. If the amount claimed includes an amount which was for a period more than one year old but which though claimed previously within time could not then be realised, limitation is saved as it is a continuation of the former application [Jagat Bandhu Sahu v Lakshmi Dei, AIR 1958 Ori 257 : 1958 Cr LJ 1425 : 24 Cut LT 290]. Maintenance was at Rs. 50 pm and as execution was levied for Rs. 1,150.00 (i.e., more than a year) it was contended that it could not be for more than a year, i.e., Rs. 600—Held, objection cannot be raised in the execution court [Sambhulal Ram v State of WB, AIR 1959 Cal 784 : 1959 Cr LJ 1435 ]. Failure to enforce within one year of maintenance order does not deprive the wife of the right of maintenance [Jasodabai, AIR 1939 Sindh 180 ].

Second application was filed 2-years-4-months-and-16-days after filing of first application which covered whole of maintenance claimed in the first application on date of filing of second application, claim beyond period of

Page 56 of 82 [s 125] Order for maintenance of wives, children and parents.— one year immediately proceeding date of the said application is barred by time. The second application cannot be treated as continuation of first application [T Rayappa v T Susheela, 2003 Cr LJ NOC 179 : 2002 (2) Andh LT (Cri) AP 428 : 2003 (2) Rec Cr R 193 (AP)].

Although maintenance becomes due from a back date, limitation can run only from the date granting it is passed [Gupteshwar Pandey v Ram Peari Devi, AIR 1971 Pat 181 : 1971 Cr LJ 774 : 1971 BLJR 982 ]. Only such arrears as related to one year prior to the date of filing the application can be recovered by attachment and sale of defaulter’s property. But there is no such limitation regarding second alternative of sentencing the defaulter to imprisonment for recovery of arrears which may extend beyond this period. However, the first method must be adopted first and if it fails to satisfy the amount due, then the alternative method should be resorted to [Iftekhar Husain v Hameeda Begum, 1980 Cr LJ 1212 (All) : 1980 Cr LJ 900 : 1980 All WC 494]. [s 125.96] Second Proviso to sub-section (3)—[Offers to maintain wife if she lives with husband].— The second proviso, which was also a proviso to old section 488, clearly provides that it is incumbent on the Magistrate to consider the grounds of refusal, and to make an order for maintenance if he is satisfied that there is just ground for refusing to live with the husband. This statutory provision was introduced with the clear object of arming the wife with a cause of action for refusing to live with the husband, and the explanation to the second proviso, which was also part of second proviso in old section 488, was introduced clearly to widen the scope and ambit of the term “just ground” in the proviso giving thus a completely new complexion to the intendment and colour of the second proviso and widening its horizon. The proviso takes within its sweep all other circumstances similar to the contingencies contemplated in the explanation which are not exhaustive but purely illustrative as also other instances of physical, mental or legal cruelty. In this case, inability of the husband to discharge his marital obligations due to impotency was held to amount to both legal and mental cruelty to be a just ground for the wife’s refusal to live with her husband [Sirajmohmedkhan v Hafizunnisa Yasinkhan, AIR 1981 SC 1972 : 1981 Cr LJ 1430 : (1981) 4 SCC 250 (SC)].

Although in Deochand v State of Maharashtra, AIR 1974 SC 1488 : 1974 Cr LJ 1089 : (1974) 4 SCC 610 the second proviso with explanation was applied as an independent enacting provision governing not only subsection (3) but section 125 as a whole as discussed in Aziz Mohd. v Sayda Begum. AIR 1981 (NOC) 55 : 1981 Kash LJ 3 : 1981 Cr LJ 267 , FB : 1981 Hindu LR 426 (J&K) and also Ghasitu v Durga Devi, 1980 Cr LJ 885 : 1980 Sim LC 82 : 1980 Hindu LR 393 (HP) and this also was the view of majority High Courts (see below), there cannot perhaps remain any manner of doubt after the aforesaid Supreme Court decision in Sirajmohmedkhan, sup, that the legal effect of the provision should be given effect to when a neglected wife claims maintenance. See also ASN Nair v Sulochana, 1981 Cr LJ 1898 : 1981 KerLT 568 : 1981 Hindu LR 665 (Ker), where it has been held that the proviso applies to whole of the section.

When wife without any justification or reason declines to live with husband, no maintenance allowance can be granted to her [Shahzad Bano, 1990 RCC 57].

Unless wife could reasonably hope to live with decency and dignity with her husband, she may refuse to live with him [Anjali Behera, 69 (1990) Cut LT 259].

It was an admitted position that the respondent had taken a second wife, namely, Gulab Bai. The respondent not only admitted this position in his written statement and evidence but also tried to justify his second marriage on the ground that the appellant had left his company and refused to come back to him and had also not cared for the children. He had to keep the children with his parents at Chalani village. He has, in his examination-inchief itself, stated that he waited for 5–6 years in the hope that his wife would come back and take care of his children and his parents but he took the second wife since she did not come back. In fact, with this specific admission in the examination-in-chief itself, there was no question of a finding that the appellant was not justified in claiming maintenance.

The wife was very specific in stating that when the husband brought the second wife, he declared that he would not keep her and started ill-treating her and threw her along with children out of the house. She stated in her cross-examination that he had not been in the house of her husband for 4 or 5 years and then the husband

Page 57 of 82 [s 125] Order for maintenance of wives, children and parents.— entered into the second marriage [Saygo Bai v Chueeru Bajrangi, 2011 Cr LJ 1007 (1010) : AIR 2011 SC 1557 : (2010) 4 Crimes 340 (SC)]. [s 125.97] Offer to maintain.— The first (now second) proviso with its explanation is also a proviso to sub-section (1), so that the offer to maintain by husband or the wife’s refusal to live with him on any alleged just ground or on any of the grounds in the explanation has to be considered by the Magistrate not only at the time of enforcement of maintenance order under sub-section (3) but also when an application is made under sub-section (1) [see Govindram Narandas v Ratanbai Nathuram., AIR 1956 Sau 105 : 1956 Cr LJ 1437 : 9 Sau LR 217; H. Syed Ahmad v Naghath Parveen Tej Begum, AIR 1958 Mys 128 : 1958 Cr LJ 1201 : 1958 Mad LJ (Cri) 496; Ranjit Kaur v Avtar Singh (Dr.), AIR 1960 Punj 221 : 1960 Cr LJ 516 : 61 Punj LR 396; Dinsab, AIR 1945 B 390; Senapathi Mudaliar v Deivanai Ammal, AIR 1950 Mad 357 : 1950 Cr LJ 775 : 1949 (2) Mad LJ 820 : 1950 Mad WN 220 (3); Maiki v Hemraj, AIR 1954 All 30 : 1953 Cr LJ 1917 : 1953 All LJ 473]—Contra : The second proviso to subsection (3) governs only sub-section (3) which deals only with the enforcement of a maintenance order and not sub-section (1). Though the proviso governs only sub-section (3), remarriage by the husband being a just ground for the wife’s refusal to live with him, it should be borne in mind when considering whether the refusal is without any sufficient reason within sub-section (4). Ordinarily, remarriage is a sufficient ground for refusing to live with husband, but when the wife deserted her husband and compelled him to remarry, she cannot take advantage of her own wrong [Ramji Malviya v Munni Devi, AIR 1959 All 767 : 1959 Cr LJ 1396 ; relied on in Kandaswami Gounder v Nachammal, AIR 1963 Mad 263 : 1963 (2) Cr LJ 166 : 76 Mad LW 161; Roshan, AIR 1943 L 59; Dewan Singh Wasawa Singh v Harbans Kaur Dewan Singh, AIR 1962 Punj 247 : 1962 (1) Cr LJ 755 (1) : 64 Punj LR 68].

Where the husband’s offer to maintain the wife if she lived with him is refused by her, wife’s application should not be dismissed without a careful enquiry and finding as to whether there was sufficient ground for not living with him [Nooran, 40 Cr LJ 496; Scllammal, AIR 1943 M 647; Sultan, 27 Cr LJ 1319; Said Bibi, AIR 1930 L 464; Ram Kishore v Bimla Devi, AIR 1957 All 658 : 1957 Cr LJ 1052 ]. The offer to maintain must be a bona fide one and not made with the object of escaping obligation [Dragaon, 13 Cr LJ 55; Teasdale, 39 Cr LJ 696; De Cruz, AIR 1938 R 25; Shamsher Khan v Siddiqunnisa, AIR 1953 All 720 : 1953 Cr LJ 1652 : 1953 All LJ 163; Mammad Kunhi v Rukhiya, 1978 Cr LJ 1645 : 1978 Ker LT 875 (Ker)]. The offer should be to maintain as a wife with that amount of decency and dignity which prevails in her class [Ramkishore, sup : Marrakal, 6 M 371; Manatha, 17 M 260; Sakrulla, 25 Cr LJ 453— Contra : Gulabdas, 16 B 269, 275; Arunachala, AIR 1933 M 668] in the husband’s own house and not an offer of separate residence [Bai Manek, 29, Cr LJ 1049]. If there was former ill-treatment which drove her away, or desertion and there is reason to believe that there will be repetition of it if she returned, subsequent offer to keep her in his house cannot be taken to be bona fide. Such lastminute offers to take back a wife are open to scepticism [Aishan, 22 Cr LJ 149; Kaluram, AIR 1932 N 183; Pritam, 27 Cr LJ 507; Bathulu, 41 Cr LJ 718; De Cruz, 39 Cr LJ 287; Bhagirath, AIR 1940 P 242 : 41 Cr LJ 718; Teasdate, AIR 1938 C 623; Ganesh Sao v Sheomala Devi, AIR 1950 Nag 168 : 1950 Cr LJ 1141 : 1950 Nag LJ 317 ; Shamsher Khan v Siddiqunnisa, AIR 1953 All 720 : 1953 Cr LJ 1652 : 1953 All LJ 163; Kandaswami Moopan v Angammal, AIR 1960 Mad 348 : 1960 Cr LJ 1098 : 1960 Mad LJ (Cri) 839 : 1961 (1) Mad LJ 18; Kishanlal v Nandlal, AIR 1968 Raj 86 : 1968 Cr LJ 547 : 1968 Raj LW 44 ]. Decree for restitution of conjugal rights is not by itself a ground to refuse maintenance [Sayed Ghulam Sajjad v Parveen Fatima, 1981 Cr LJ (NOC) 2 : 1980 (2) Andh WR 335 : 1980 Mad LJ (Cri) 786 (AP)].

The husband, with a view to thwarting the passing of maintenance order, obtained an ex parte decree for restitution of conjugal rights from the Civil Court. Evidence on record showed that the husband had, by his conduct, deserted his wife and refused to maintain her. It was held that maintenance could not be refused to the wife [Amina Mohammedali Khoja v Mohammedali Ramjanali Khoja, 1985 Cr LJ 1909 : (1985) 87 Bom LR 274 : 1985 (2) Bom CR 267 (Bom)].

A wife against whom a decree for restitution has been obtained can still claim maintenance, if the husband’s conduct obstructs her from obeying the decree, such as the husband keeping another woman in the house [Sampuran Singh v Gurdev Kaur, 1985 Cr LJ 1072 : 1985 (2) Crimes 313 : (1985) 87 Punj LR 445 : 1985 (2) DMC 21 (P&H)].

Whenever a wife claims maintenance or applies for enforcement of an order of maintenance, it is usual for the

Page 58 of 82 [s 125] Order for maintenance of wives, children and parents.— husband to counter it with a pretended offer to maintain her, if she lives with him. In Bhagirathi sup, Harries, CJ, observed:—

In a claim for maintenance it is no defence for a husband to say that he is prepared to take his wife back if the facts show that the wife has reasonable cause for fearing to return to the husband’s home. If the wife has been ill-treated and there is ground for believing that if she returns the ill-treatment will continue, then the wife is entitled to live apart from her husband. Causing a wife to leave the protection of the husband by ill-treatment is tantamount to driving the wife deliberately from the home.

In Malasseriyil Usha v Malasseriyal Kunhimon, 2003 Cr LJ 291 : 2002 (1) Ker LJ 689 : 2003 (2) DMC 145 (Ker) due to cruel treatment of the husband, the petitioner wife became a mental wreck and she had to be hospitalised, notwithstanding refusal of the wife to cohabit with the husband any further, she was entitled to get maintenance from him especially when she was a person of no means. [s 125.98] Mistress.— A wife is justified in living apart and claiming maintenance when husband keeps a mistress [Maroli (1990) 1 Hindu LR 505 (Bom); Ramdayal Vaishya v Anita Kumari, 2004 Cr LJ 3669 (3670) MP : 2003 (4) MPHT 234 : 2004 (4) Rec CrR 851]. [s 125.99] Living with another women.— Where the husband is living with another woman, the wife is entitled to claim maintenance even if her allegation that the husband had entered into a second marriage is not proved. [Sulochana Devi v State of Bihar, 2000 Cr LJ 4360 : 2000 (3) East Cr C 1728 (Pat); Sarswatia Devi v Amrit Bhuiya, 2006 Cr LJ (NOC) 36 (Jhar) : 2005 AIR Jhar HCR 2134]. [s 125.100] In-laws.— Husband was ready to take back the wife in conjugal house—wife was willing to live with her husband but only where her in-laws do not find a place. It was held that wife was entitled to insist so and cannot be denied maintenance for such insistence [Juliet Vasantha v Antany Marimuthu, 1985 Cr LJ 1613 : 1985 Mad LJ (Cri) 39 : 1985 Mad LW (Cri) 107 : 1985 (2) Hindu LR 22 Mad].

The wife would be fully justified in refusing to live with the husband if he is living with another woman and has an issue by her. In law, the position is absolutely clear that a wife can refuse to live with her husband and yet claim maintenance under section 125 if he has remarried or is living in adultery with another woman. A wife has a right to the exclusive association of her husband undefiled and unpolluted by other woman [Dharmishthaben Hasmukhbhai v Dr. Hasmukhbhai Prabhudas Ranpurs, 1990 Cr LJ 2132 : 1989 (3) Crimes 134 : (1989) 30 Guj LR 776 : 1989 (2) HLR 316 (Guj) (AS Qureshi, J.)]. [s 125.101] “Just Ground” for the wife living apart.— The wife is entitled to separate maintenance for some good reason for living apart. The only point for consideration is whether the reason given by the wife for living apart is just. The court will no doubt consider cruel or barbarous treatment, safety of life; inadequacy of food or clothing, etc., but it is now essential for the court to consider what constitutes habitual cruelty or legal cruelty, as it was in the pre-1898 Code where instead of “just ground for so doing” the words were “that he habitually treated his wife with cruelty”. The words “just ground” invest the court with a large discretion. A systematic course of ill-treatment, beating, or oppression is a good ground for the wife’s refusal [Kaluiya, AIR 1929 A 950; Bhagirathi, sup; Ganesh Sao v Sheomala Devi, AIR 1950 Nag 168 : 1950 Cr LJ 1141 : 1950 Nag LJ 317 ; Anandibai, 1957 Jab LJ 892 ; Samuel Stephen Richard v Stella Richard, AIR 1955 Mad 451 : 1955 Cr LJ 1192 ]. Habitual ill-treatment need not be proved [Ignatious, AIR 1935 R 102]. The Hindu Adoptions and Maintenance Act, 78 of 1956, section 18 [formerly The Hindu Women’s Right to Separate Residence and Maintenance Act, 19 of 1946, section 2) also specifies certain grounds upon which a Hindu married woman is entitled to separate residence and maintenance and the explanation to section 125 (3) second proviso is on the same line as in section 18(2) (d), (e) ibid. What is sufficient ground must be determined with reference to the circumstances of each individual case and with the due regard to the social ideas and customs of the community to which the parties belong [Gantapalli, 20 M 470,

Page 59 of 82 [s 125] Order for maintenance of wives, children and parents.— 476, (FB)]. Impotence of husband has been regarded as just ground [Siraj Mohamed Khan Jan Mohammad Khan v Hafizunnisa Yasinkhan, AIR 1981 SC 1972 : 1981 Cr LJ 1430 : (1981) 4 SCC 250 (SC)]. Marriage under an agreement that husband should forever live in her father’s house and illness of wife [Ram Khelawan, AIR 1952 A 958] or in her house [Nizamul Haque v Begum Noorjahan, AIR 1966 Cal 465 : 1966 Cr LJ 983 ] were regarded just grounds.

In the instant case, the husband under pressure and curb did not pay attention towards welfare of his wife and even requested her not to become pregnant. It was held that it amounted to cruelty and there was sufficient reason on the part of wife not to live with husband. The wife was, therefore, held to be entitled to maintenance [M. Krishna Moorthy v Pushpa, 2010 Cr LJ (NOC) 564 (Mad)].

If the wife for sufficient reason refuses to live with her husband, then even if she lived with him, the husband can be ordered to pay maintenance to her [Devendra Prasad v State of Bihar, 2006(37) All 925 (927) (Pat)].

The wife is well-justified in living separately; mother-in-law had made her life a hell. Such tyranny in the husband’s household, although not at the hands of the husband but at the hands of the mother-in-law, obviously comes within the purview of “cruelty”. In maintenance cases, the courts should not be too rigid, dogmatic and technical. The whole approach should be pragmatic, keeping in view the status of the parties, the social environment in which they live and their illiteracy and backwardness. The parties are village folk belonging to the backward society and living in the backward region of Bastar District of M.P. State. Evidence of such simple witnesses is often crude and earthy [Radharani v Sonu, 1986 Cr LJ 1129 : 1986 MPLJ 581 : 1986 Jab LJ 413 : 1986 (1) DMC 281 (MP)].

The following are just grounds : physical cruelty [Rajpati, 31 Cr LJ 3]; reasonable apprehension of physical illtreatment [Sundarammal, AIR 190 M 292]; systematic ill-treatment [Kaluiya, sup]; violent behaviour towards wife [Ignatious, sup]; venereal diseases of the husband [Sellamal, AIR 1943 M 647]; Adultery [Gantapalli, 20 M 470; De Castro, 13 A 348]; deliberate attribution of immorality falsely to a wife [Jambapuram Subbampua v Jambaram Venkata Reddi, AIR 1950 Mad 394 : (1950) 51 Cr LJ 931 : 63 Mad LW 77 : 1950 (1) Mad LJ 158; Pancho v Ram Prasad, AIR 1956 All 41 : 1956 Cr LJ 11 : 1955 All LJ 662; Narayanan Neelakanton v Amini Narayani, AIR 1952 Trav-Co 562 : 1953 Cr LJ 72 (Trav-Co) : 1951 KerLT 655; Kamala Gangalamma v Venkatarani Reddi, AIR 1950 Mad 385 : (1950) 51 Cr LJ 907 : 63 Mad LW 66 (3) : 1950 (1) Mad LJ 75; Kandaswami Moopan v Angammal, AIR 1960 Mad 348 : 1960 Cr LJ 1098 : 1960 Mad LJ (Cri) 839 : 1961 (1) Mad LJ 18; Chander Prakash Bodh Raj v Shila Rani Chander Prakash, AIR 1968 Del 174 : 1968 Cr LJ 1153 ]. Imputation of unchastity made for the first time in reply to claim for maintenance—Such subsequent event must be considered and another application is not necessary [Shakuntla v Ratan Lal, 1981 Cr LJ 1420 : 1981 Sim LC 326 : 1981 Hindu LR 542 (HP)]; apprehension of physical harm due to persistent demand of dowry [Sirajmohmedkhan Jan Mahamed Khan v Hafizunnisa Yasinkhan, AIR 1981 SC 1972 : 1981 Cr LJ 1430 : (1981) 4 SCC 250 : 1981 SCC (Cri) 829 (SC)].

The husband having sufficient means is under a statutory liability to maintain his wife. However, as it is her duty to live with him, she has no absolute right to claim separate maintenance. Therefore, where the husband offers to maintain the wife on condition of her living with him, she is entitled to maintenance, only if there is just ground for refusal to live with him. When, on the wife’s application for maintenance, the husband made no offer to maintain her on condition of her living with him and had subsequently filed an application for divorce, the wife must be held to have just ground for her refusal to live with the husband and is entitled to claim maintenance [Girish Chandra v Shushilabai, 1987 Cr LJ 1815 : 1987 CrLR (MP) 29 : 1987 (2) DMC 400 (MP)].

When a Muslim enters into a second marriage, the first wife’s claim for maintenance is not barred merely because Muslim law permits the husband to have four wives at a time [Banabibi Sikandra Khan v Sikandra Khan Umarkhan, 1983 Cr LJ 1382 : (1983) 24 Guj LR 1098 : 1983 CrLR 329 (Guj). See below, second marriage.

During the short period of two years of her married life (prior to the filing of application for maintenance for

Page 60 of 82 [s 125] Order for maintenance of wives, children and parents.— herself and her son), the wife was being ill-treated and subjected to threats by her husband, the husband had been making demand for a huge amount of dowry and was beating her and threatened to kill her with a gun and ultimately turned her out of the house. The factum of cruelty was clearly made out and there was justification for the lady to live separately from the husband and to refuse to go back to him. She was, therefore, entitled to maintenance for herself and for the minor child, so long as he lived with the mother [Bindelal v Kushma Devi, 1988 Cr LJ (NOC) 19 : 1988 All Cr C 224 : 1988 (2) DMC 55 : 1988 UP Cr R 123 (All)].

In an Allahabad case, husband was ready and willing to keep the wife with him. The wife gave no reasons for her unwillingness to stay with him. She alleged, but could not prove, cruelty or second marriage by the husband. It was held that she was not entitled to (separate) maintenance. [Jiwasi Kunwar v Ram Chandra Yadav, 1988 Cr LJ, (NOC) 44 : 1988 All Cr C 200 : 1988 (2) Hindu LR 220 : 1988 (2) All CrLR 260 (All)]. [s 125.102] Explanation to second proviso, sub-section (3)—[Another Marriage or Keeping Concubine].— Because of the explanation to the second proviso to sub-section (3) the fact that the husband has contracted another marriage or has a mistress is by itself a just ground for wife to live separately and entitles her to claim maintenance. [Deochand v State of Maharashtra, AIR 1974 SC 1488 : 1974 Cr LJ 1089 : (1974) 4 SCC 610 (SC)]. Another marriage by the husband or the keeping of a concubine is also a ground in section 18 (2), (d) (e) of the Hindu Adoptions and Maintenance Act, 78 of 1956 (formerly the Hindu Women’s Rights to Separate Residence and Maintenance Act, 19 of 1946, section 2) for residing separately and claiming maintenance. If the second marriage took place before Act 19 of 1946, a Hindu wife is not entitled to separate residence and maintenance [Palaniswamy, AIR 1956 M 337, FB].

A Muslim wife was turned out by the husband after her beating and was living in her father’s house along with her daughter. Incomes of the wife’s father and the husband were almost equal. Defence plea was that the wife wanted that her husband to live with her father and support him. But the plea was found improbable. Husband took a second wife. No question of claimant-wife returning to matrimonial home arose. Wife was not possessed of means to support herself and her daughter. She was held entitled to maintenance [Masooda Begum v Mashkoor Ahmad Khan, 1988 Cr LJ (NOC) 36 : 1988 All Cr C 228 : 1988 (2) DMC 85 : 1988 UP Cr R 120 (All)]. [s 125.103] Second marriage.— As under the explanation to the second proviso to sub-section (3), the mere contracting another marriage or the mere keeping of a mistress (not necessarily in his house) has been specifically made a “just ground” for refusal to live with her husband, another marriage itself ought to entitle a wife to live separately and to claim maintenance and it should not be necessary to prove in addition to neglect or refusal to maintain, as failure to give the former wife maintenance after another marriage would clearly amount to neglect or refusal. This appears to be the correct and majority view. The explanation is an exception to proviso preceding it and in such a case husband’s offer, after the application under section 125, to maintain the wife if she lives with him is of no avail [see Malki v Hemraj, AIR 1954 All 30 : 1953 Cr LJ 1917 : 1953 All LJ 473; Bayanna v Devamma, AIR 1954 Mad 226 : 1954 Cr LJ 279 : 66. Mad LW 861 : 193 (2) Mad LJ 522; B Rajeswariamma v KM Viswanath, AIR 1954 Mys 31 : 1954 Cr LJ 273 : 33 Mys LJ 51 : ILR (1953) Mys 433 ; Biro v Behari Lal, AIR 1958 J&K 47 : 1958 Cr LJ 1481 ; Senapathi Mudaliar v Deivanai Ammal, AIR 1950 Mad 357 : (1950) 51 Cr LJ 775 : 1949 (2) Mad LJ 820; Bhanwarlal v Gitabai, AIR 1957 MP 221 : 1957 Cr LJ 1409 : 1957 Jab LJ 262 ; H. Syed Ahmad v Naghath Parveen Taj Begum, AIR 1958 Mys 128 : 1958 Cr LJ 1201 : 1958 Mad LJ (Cri) 496; Gunni v Babu Lal, AIR 1952 MB 131 : 1952 Cr LJ 1164 : ILR (1952) MB 329 ; Ramji Kaur v Avatar Singh (Dr.), AIR 1960 Punj 221 : 1960 Cr LJ 516 : 61 Punj LR 896; Kandaswami Gounder v Nachammal, AIR 1963 Mad 263 : 1963 (2) Cr LJ 166 : 76 Mad LW 161; Mukund Lal, AIR 1950 Punj 390 ; Shambhu Reddy v Ghalamma, AIR 1966 Mys 311 : 1966 (1) Mys LJ 639 : 1966 Cr LJ 1291 ; Aziz Md. v Sayda Begum, AIR 1981 NOC 1981 Kash LJ 3 : 1981 Hindu LR 426 : 1981 Cr LJ 267 FB (J&K)]. This view was taken in a Calcutta case [Panchugopal, 59 Cal WN 767]; and in another case also it was held that a second marriage provides a just ground for the wife’s refusal to live with the husband if the husband either neglects or refuses to provide separate residence that amounts to neglect and refusal in sub-section (1) of section 123 [Gouribala Jana v Nityananda Jana, AIR 1965 C 190 : 68 Cal WN 1178 : 1965 (1) Cr LJ 425 ]. A later division bench held that the mere fact of another marriage does not entitle a wife to claim maintenance without proof of neglect or refusal to maintain her [Bela Rani Chatterjee v Bhupal Chadra Chantterjee, 60 Cal WN 212 : AIR 1956 Cal 134 : 1956 Cr LJ 526 : 97 Cal LJ 189; followed. by Rupchand Mohan v Charulsla Mahatani, AIR 1966 Cal 83 ]. To the same effect are the decisions in Anwarbi, AIR 1953 N 133; Ishar v Soma Devi, AIR 1959 Punj 295 : 1959 Cr LJ 767 ; State of MP v Desbati, AIR 1960 MP 245 : 1960 Cr LJ 1096 : 1960 MPLJ 817 : 1960 Jab LJ 686 ; Dhankaur Kaur v Niranjan

Page 61 of 82 [s 125] Order for maintenance of wives, children and parents.— Singh, AIR 1960 Punj 595 : 1960 Cr LJ 1494 ; Iqbalunnisa Begum v Habib Pasha, AIR 1961 AP 445 : 1961 (2) Cr LJ 604 : 1961 Andh LT 130 : 1961 Mad LJ (Cri) 39]. Second marriage even with consent of first wife is a just ground for living separately and claim maintenance [Abdul Ghaffar v Bibi Hafiz Khatoon, AIR 1968 Pat 307 : 1968 Cr LJ 1110 (2)]. Second wife marrying with knowledge that husband has another wife living with him can claim maintenance and separate residence [Ghasitu v Durga Devi, 1980 Cr LJ 885 : 1980 Sim LC 62 : 1981 Chand Cr C 1 : 1980 Hindu LR 393 (HP) (where it is stated in support that explanationto second proviso applies to main proceedings under sub-section (1)]. If after infructuous execution of decree for restitution of conjugal rights, husband marries another woman, order for maintenance to first wife can be made without enquiry under second proviso [G Subhan Basha v Sham Shunnisa Begum, 1980 Cr LJ 376 : 1990 Mat LR 219 (AP)].

In proceedings under section 125, the court need not ascertain as to who was in the wrong, or whether the wife was guilty of leaving the matrimonial house without sufficient cause. The wife (even if she is in the wrong) cannot be deprived of maintenance when the husband contracts second marriage, as that fact, by itself, entitles her to live separately. Proceedings under section 125 should not be confused with the matrimonial proceedings between the parties. The Magistrate must award maintenance, if the wife is unable to maintain herself and if her husband has the means. The conduct of the wife at the time of leaving the house is wholly irrelevant and the Magistrate must concentrate on the facts and circumstances existing on the date of passing an order on the application filed under section 125 [Mustafa Shamsuddin Shaikh v Shamshad Begum Mustafa Shaikh, 1991 Cr LJ 1932 : (1990) 92 Bom LR 239 : 1990 Mah LJ 753 : 1991 (1) Crimes 527 (Bom-DB)].

Where the wife alleged that her husband had contracted a second marriage and she filed a complaint for an offence under section 494 of Indian Penal Code, 1860, dismissal of complaint and acquittal of husband cannot be taken against wife to be a just ground for her refusal to live with her husband. Even though wife was unable to prove that her husband has remarried, the fact remained that the husband was living with another woman. That would entitle the wife to live separately and would amount to neglect or refusal by the husband to maintain her. Proviso to sub-section (3) would squarely apply and justify refusal of the wife to live with her husband. Statement of the wife that she is unable to maintain herself would be enough and it is upon the husband to prove otherwise [Rajathiv C. Ganesan, AIR 1999 SC 2374 : 1999 Cr LJ 3668 : (1999) 6 SCC 326 : 1999 (3) Crimes 189 ].

The fact that the wife once or twice came to live with her husband, after he married again, is of no consequence and entitles her to claim maintenance [Maiki., sup]. The second proviso places the wife on a stronger footing. It does not mean that it benefits only the first wife when the husband takes a second wife. The word “contracts” is sufficiently wide to benefit the second wife even where the husband without marrying a third time is living with the first wife [Kunti Bala Dassi v Nabin Chandra Das, AIR 1955 Cal 108 : 1955 Cr LJ 354 : 58 Cal WN 702 : 94 Cal LJ 119; Tejabai v Shankarrao Baswanappa, AIR 1966 Bom 48 : 1966 Cr LJ 131 : 1965 Mah LJ 809 : 67 Bom LR 478]. As to whether a decree for restitution of conjugal rights is a ground for cancellation of order, see notes to section 127 (2), post.

Although the personal law of the Muslims allows four wives under the explanation the wife is entitled to maintenance, if another marriage is contracted [H. Syed Ahmad v Naghath Parveen Taj Begum, AIR 1958 Mys 128 ; 1958 Cr LJ 1201 : 1958 Mad LJ (Cri) 496; Badrauddin, 1957 ALJ 300 ; Mohammad Haneef v Mariana, AIR 1969 Mad 414 : 1969 Cr LJ 1412 : 1969 (1) Mad LJ 97 : 1968 Mad LW (Cri) 210; Mehbubabi Nasir Shaikh v Nasir Farid Shaikh, 1976 Mah LJ 631 : 1977 Cr LJ 391 : 78 Bom LR 258, Begum Subanu v AM Abdul Gajoor, AIR 1987 SC 1103 : 1987 Cr LJ 980 : (1987) 2 SCC 285 (SC)].

The following are not just grounds : Non-payment of prompt dower [Md. Azizullah, AIR 1935 O 285]; custom to live in wife’s parent’s house [Qadir v Zoni, AIR 1957 J&K 37 : 1957 Cr LJ 851 ]; impotency of husband [Emperor v Daulat Raibhan, AIR 1948 Nag 69 : (1948) 49 Cr LJ 52 : 1947 Nag LJ 531 ]; refusal of cohabitation by husband [Basavamma, AIR 1922 M 209 : 23 Cr LJ 336]; mere incompatibility of temper [Gulabdas, 16 B 269; see however, Nihan, 15 Cr LJ 554].

Order of maintenance passed under section 488 of old Code must be deemed to be made under section 125 of the new Code by reason of section 484 (2) (b). It can be cancelled under section 127 [Jagir Singh v Ranbir

Page 62 of 82 [s 125] Order for maintenance of wives, children and parents.— Singh, AIR 1979 SC 381 : 1979 Cr LJ 318 : (1979) 1 SCC 560 (SC)]. An application for enforcement of the order passed under section 488 of the Code is required to be made before a judicial Magistrate first class [Matoli, 1978 All Cr R 230].

The husband forcibly turned out the wife, married another woman and did not care for the first wife during the period while the wife’s application under section 125 was pending. It was held that the order granting maintenance from the date of the application was justified [Gangabai v Shivram, 1989 Cr LJ (NOC) 154 : 1988 (3) Crimes 58 : 1989 MPLJ 44 : 1988 (2) Hindu LR 739 (MP)].

A husband’s marrying again or keeping a mistress constitutes a just ground for the wife’s refusal to live with the husband. Further proof of neglect by the wife is not needed [Pellakuru Syamalamma v Pellakuru Sambaiah, 1988 Cr LJ 1891 : 1988 (2) Crimes 768 : 1988 (1) And LT 965 : 1988 (2) DMC 209 (AP)]. [s 125.104] Sub-section (4)—Adultery, etc. — Wife contracting another marriage during the lifetime of her first husband with whom her marriage is not dissolved would be living in adultery and she would not be entitled to claim maintenance or interim maintenance [Babita Gangwar v Ram Pal Gangwar, 2010 Cr LJ (NOC) 49 (All)]. Adultery refers to a stage prior to the passing of the order in maintenance proceedings whereas sub-section (5) refers to a stage after the order has been passed [Kalavati v Ausan, 1981 Cr LJ 74 : 1980 UPLR (Cri) 39 : 1981 Mat LR 25 (All)]. It is an exception to the general liability to maintain referred to in section 125 (1). He who claims exemption has to prove the existence of circumstances for putting forward such claim [Sarda v Kumaran, 1977 Ker LT 942 : 1978 Cr LJ (NOC) 215 : 1978 Mad LJ (Cri) 104; Mammad Kunhi Rukhiya, 1978 Cr LJ 1645 : 1978 Ker LT 875 (Ker)]. It states the grounds on which the Magistrate can refuse to enforce a maintenance order. It should be read with sub-sections (1) and (3). Adultery must be at or about the date of the application [Kallu, 26 A 326; Kista, 39 Cr LJ 951]. Though conditions in sub-sections (4) and (5) are couched in precisely the same language, the two sub-sections deal with different situations. While sub-section (4) refers to the period before the order is passed, sub-section (5) concerns the period subsequent to the passing of the order [K Jagmaiah v K Seshirekhamma, 1976 Cr LJ 219 : 1976 (1) Andh WR 220 : 1976 Mad LJ (Cri) 220 (AP)]. Sub-section (4) governs the whole of section 125 including sub-section (1). A wife who refuses to live with her husband on account of his remarriage is not prevented from claiming separate maintenance [Kandaswami Gounder v Nachammal, AIR 1963 Mad 263 : 1963 (2) Cr LJ 166 : 76 Mad LW 161]. Muslim husband having another wife, the first wife has every right to stay away and claim maintenance [Mehubabi Nasir Shaikh v Nasir Faris Shaikh, 1976 Mah LJ 631 : 1977 Cr LJ 391 : 78 Bom LR 258]. Beating and ill-treating under influence of alcohol and the fact of earlier two marriages of husband ending in divorce are sufficient reasons for refusal to live with husband [Mammutty v Beepathumma, 1981 Cr LJ 1355 (Ker)]. As to whether the plea of adultery, etc., under sub-section (4) can be raised when a maintenance order is executed under sub-section (3), see notes to sub-section (3) ante.

Where the allegations of wife regarding adulterous life not proved and had a mutual divorce, seeing the capability of husband to maintain wife, allowance granted Rs. 400/- month was proper [Parasnath Kurmi v Sessions Judge, 1998 Cr LJ 1084 : (1998) 36 All Cr C 169 : 1998 All LJ 77 (All)].

“Living in adultery” means a continued adulterous conduct and not a single or occasional lapse from virtue. Solitary act of adultery or an isolated lapse of wife will not disentitle the wife to claim maintenance [Gantapalli, 20 M 470, FB; Gopaldeo, A 1929 N 238; Kista, AIR 1938 M 833; Ma Mya, AIR 1936 R 466; Fulchand, 52 B 160; Patala, 30 M 332; M Kanniappan v Akilandammal, AIR 1954 Mad 427 : 1954 Cr LJ 516 : 66 Mad LW 164 : 1953 (1) Mad LJ 829; Chetibai, 39 Cr LJ 847; Samila Devi v Shankar Dass, 1978 Cr LJ (NOC) 176 : 1978 Sim LC 205 : 1978 Hindu LR 719 (HP); Kasthuri v Ramasamy, 1979 Cr LJ 741 : 1978 Mad LW (Cri) 201 (Mad); Urmila Devi v Sessions Judge, 1981 Cr LJ (NOC) 89 (All); See also Pandurang v Leela, 1997 Cr LJ 3976 (Bom); Laxman v Nabita, 2002 Cr LJ 1397 : 2002 (4) All CrLR 1028 : 2002 All MR (Cri) 1650 : 2002 (3) Bom LR 32 : 2002 (2) Rec Cr R 641 (Bom); Nirmaldas R. Alhat v Sow, Sumita N. Alhat, 2006 Cr LJ 3635 (Bom)], and the burden of proof of unchastity is on the husband [Kista, sup; Raghupathula Subbayamma v Raghupathula Venkata Rao, AIR 1954 Mad 90 : 1954 Cr LJ 85 : 1952 Mad LJ 183 : 1952 Mad WN 964]. Unless it is found that at the relevant time the wife was actually living in adultery, he is not disentitled to maintenance [Samila Devi v Shankar Dass, 1978 Cr LJ (NOC) 176 : 1978 Sim LC 205 : 1978 Hindu LR 719 (HP) sup]. It means “shortly” before or after the petition for maintenance [SS Manickam v Arputha Bhavani Rajam, 1980 Cr LJ 354 : 1979 Mad LW (Cri) 143 : 1980 Mad LJ (Cri) 327 (Mad)]. The words “living in adultery” have also been used in

Page 63 of 82 [s 125] Order for maintenance of wives, children and parents.— section 13 of Hindu Marriage Act, 25 of 1955 and the same meaning attaches to them [Rajani, AIR 1958 B 264 : 58 Bom LR 577]. It would be wrong to limit the meaning of “adultery” to the definition as in section 497 of Indian Penal Code, 1860 [Kaniappan, sup]. Expulsion from caste for an act of adultery was held to desentitle a wife to maintenance [Ponnajee, 31 M 185; see however Yesubai, AIR 1933 B 21]. The fact that the wife had an illegitimate child some time ago is not enough to show that she is living in adultery [Kallu, 26 A 326; Jatindra, 29 Cal WN 647 : 26 Cr LJ 1184 : AIR 1925 C 794]. It is not the law that a man may desert his wife and thus tempt her to unchastity and then resist her claim to maintenance on the ground of unchastity [Lakshmi, AIR 1938 M 66]. Under section 6 of the Summary Jurisdiction (Married Women) Act, 1895, the husband cannot maintain a defence based on alleged belief in wife’s adultery, if the wife’s conduct was brought about, by wilful neglect or activity promoted by him [Heartley v H, (1955) 1 All ER 625 ].

It is for the court to determine what is sufficient for refusing to live with husband see ante. The allegation of such refusal since the order of maintenance was passed must also be adjudicated [Shoni, 1882 AWN 168]. The words “without sufficient reason” are objective and not subjective [Ram Singh, AIR 1943 Lah 223 ]. It is for the husband to prove the circumstances in sub-section (4) or adultery [Ram Singh, sup;Raghupathudla Subbayamma v Rhagupathula Venkata Rao, AIR 1954 Mad 90 : 1954 Cr LJ 85 : 1952 Mad LJ 183 : 1952 Mad WN 964]. Where adultery is not the only ground on which the petition is resisted, the wife should lead evidence [Balraj Kumar v Sudesh Kumari, AIR 1962 Punj 266 : 1962 (1) Cr LJ 755 (2) : 64 Punj LR 556].

If on the facts, it came out that the wife was living in adultery and continued to live in adultery even after the divorce, then she is not entitled to claim maintenance on the ground that she has not remarried. If a divorcee who is leading a promiscuous life approaches the court for maintenance, then she is not entitled for maintenance on the basis of the inclusive definition of “wife”. What could not have been granted in the normal course to a wife could not be granted to a divorced wife in whose favour a limited benefit has been conferred under the inclusive definition of section 125 Explanation 1 (b) [Yeluri Mangatayaru v Yeluri Seshavataram, 1990 Cr LJ NOC 8 : 1988 (2) Andh LT 960 : 1989 (1) Crimes 449 : 1989 (1) HLR 601 (AP)].

Where the wife was found living with another man in a rental house as a husband and wife till they were apprehended by the police for the house, the order of granting maintenance to her was set aside [Sabal Chandra Saha v Pritikana Saha, 2003 Cr LJ 2200 : 2003 (2) Gau LR 576 : 2003 (2) DMC 640 : 2003 (11) All Ind Cas 658 (Gau)].

In this case, the husband though resisted claim on the ground of adultery, wanted to resume. This fact proves that the wife was not at fault and allegation of adultery against wife was false. It was held that wife could not be deprived of her right to claim maintenance [N Sampath Rajkumari, 2010 Cr LJ (NOC) 468 (Mad)].

If an allegation of unchastity is made against the wife and payment of maintenance is sought to be avoided on the ground of her living in adultery, but the plea fails, such plea by itself is sufficient to entitle her to remain apart from her husband. Such allegation causes mental anguish of the deepest character and is a grave psychic assault on her. It shatters the marital peace and makes living together incompatible [Pramila Dei v Sanatana Jena, 1990 Cr LJ NOC 59 : (1989) 67 Cut LT 392 : 1989 (2) Crimes 288 : 1989 (1) HLR 598 (Orissa)].

Husband obtaining decree for divorce on ground of desertion by wife during pendency of maintenance proceedings—wife nonetheless held to be entitled to maintenance [Sukumar Dhabaar v Anjali, 1983 Cr LJ 36 : 1983 (2) DMC 260 (Cal)].

If the wife for sufficient reasons refuses to live with her husband, then even if she lived with him, the husband can be ordered to pay maintenance to her [Devendra Prasad v State of Bihar, 2006 (37) AIC 925 (927) Pat]. If the wife is interested in staying with her mother and does not live with her husband without any sufficient cause, she would not be entitled to maintenance under section 125 of Code of Criminal Procedure, 1973 [Shibani Roy v Shambhu Nath Roy, 2007 Cr LJ (NOC) 891 (Cal)].

Page 64 of 82 [s 125] Order for maintenance of wives, children and parents.— A wife’s application under section 125 of Code of Criminal Procedure, 1973 was dismissed on the ground that the wife was living separately without just cause and that there was no refusal or neglect to maintain by the husband. Subsequently, the husband was granted divorce by the Civil Court and the wife again applied for maintenence under section 125. It was held that the second application was not barred. Her status had changed. [Mambekkathu Nanu v Mambekkattu Vasantha, (1984) Cr LJ 1206 : 1984 Ker LT 382 : 1984 Hindu LR 437 : 1984 Mat LR 251 (Ker)].

Provision of section 125(4) applies to such a case in which wife without any sufficient cause, denies to live with her husband, and as in the earlier said case, wife is not entitled for getting maintenance from her husband but she should be authorised for the same where she leaves her husband’s house due to some reasons [Khangembam Daoji Singh v Yumnam Ningol Mema and another, 1995 Cr LJ 2327 Gauhati : (1995) 2 GLR 354 ].

Onus to prove that wife was living in adultery would be on the husband [Nirmaldas R. Alhat v Sow, Sunita N Alhat, 2006 Cr LJ 2635 (Bom) : 2006 (3) MhLJ 549 : 2006 (3) RCR (Civil) 579 : 2006 (3) RCR (Criminal) 580].

Where the allegation of unchastity of wife living in adultery could not be established, the wife would be entitled to live separately and claim maintenance [Sri Channa Keshvaiah v Lakshmi, 2001 Cr LJ 187 : 2001 (3) Kant LJ 458 : 2001 (2) Hindu LR 163 : AIR 2001 Kant HCR 283 (Kant)].

Where husband resists the claim for maintenance on the ground that wife is living in adultery with a third person, such third person is not a necessary party to the application under section 125 of Code of Criminal Procedure, 1973 [Pratha Majumdar v Sharmishtha Majumdar, 2005 Cr LJ 3834 (3841) (Cal) : 2006 (1) All CrLR 137].

Husband resisted claim on ground of adultery on part of wife and his offer to maintain her on a condition that she lives with him is anti-thesis of adultery. Evidence led by husband cannot operate as satisfactory circumstance to resist claim for maintenance [Usman v Badarunsia, AIR 2007 NOC 371 (Ker)].

Where the husband though alleged that his wife was living in adultery and child born to her was illegitimate did not apply for DNA test, nor he could state anything on the point that his wife was living in adultery on the date of application, the wife was held entitled to maintenance [Raj Dei v Ram Lakhan, 2008 Cr LJ (NOC) 538 (All) : (2008) 2 All LJ 334 (All) : 2008 (60) All Cri C 599]. [s 125.105] Living separately by “mutual consent”.— Means a living separately under a definite contract voluntarily and freely made between the parties. But a wife compelled to live apart under a decree of Panchayat is not doing so by mutual consent [Natham, 20 Cr LJ 154; Tekchand, AIR 1941 Sindh 214 ; see Bhagwan, AIR 1939 Lah 209 ].

In the instant case, separate living proceeded from the common desire of the husband and the wife to live separately and was, in fact, an outcome of a free agreement between the parties. The parties were living separately on mutual consent and therefore, the wife was not entitled to maintenance under section 125 of Code of Criminal Procedure, 1973 [Amarendra Nath Bagui v Gouri Rani Bagui, 1990 Cr LJ 2415 : 1990 (20 Cal HN (Cal) (JN Hore, J.)].

Even though the spouses had signed a deed, wife disputed this by saying that neither there was any divorce nor any amount as alimony was paid to her. Evidence showed that it was difficult to believe that wife would waive her right to future maintenance for a small sum of Rs. 750/-. Since wife was unable to maintain herself, granting maintenance of Rs. 200/- p.m. was held proper [Cahu Sika Panpatil v Leelabai Dhuru Shirsath, 2007 Cr LJ 1357 (Gau)].

Page 65 of 82 [s 125] Order for maintenance of wives, children and parents.— Wife lodging complaint to police station against husband. Reasonable ground for wife to live separately. Order awarding maintenance proper [Raju v State of UP, 2010 Cr LJ (NOC) 1201 (All) : 2010 (4) ALJ 473 ].

Where the husband made allegations of adultery against wife and categorically refused to keep wife with him, it was held that there was sufficient ground for wife to live separately and, therefore, the wife was entitled to maintenance [Phoolkumari v Hemsagar Choudhary, 2010 Cr LJ (NOC) (CHA]).

Where the husband neglected his wife and married another woman and his wife was living separately, she was held to be entitled to maintenance. [Dilip Kumar v State of UP, 2010 Cr LJ (NOC) 1266 (All)].

Order setting aside maintenance awarded merely on the ground that wife and children left house on their own was held not proper in Mannava Satyawati v Mannava Malleswara Rao, 1995 SCC (Cri) 836 : 1995 Supp (3) SCC 259 .

An insane wife being in her father’s house by order under section 33 of Lunacy Act with the consent of husband is not living separately by mutual consent as she is incapable of giving consent [Amar Nath Kapur v Pran Nath Khanna, AIR 1968 Del 217 : 1968 Cr LJ 1268 ]. Where a wife lives separately on account of cruelty or keeping a woman or for re-marriage by husband, it cannot be said that they are living apart by mutual consent [Ramsaran, AIR 1937 A 115; Ram Chand Saudagar Ram v Jiwan Bai, AIR 1958 Punj 431 : 1958 Cr LJ 1437 : 60 Punj LR 147; Mukund Lal (Dr.) v Jyolishmati, AIR 1958 Punj 390 : 1958 Cr LJ 1340 : 60 Punj LR 314; Bisambhar Dass v Anguri, 1978 Cr LJ 385 : 1978 All LJ 17 : 1978 Hindu LR 482 (All)]. If a husband takes another wife and he and the first wife mutually agree that she should live separately, it is not mutual consent within the section as her right to live separately on the husband’s contracting another marriage cannot be defeated [Mukund Lal, sup]. “Mutual consent” would apply to separate living if it was the result of a desire of both parties, but a mere agreement to pay maintenance or to live separate would not bar an application under section 125 [Chameli v Gajaraj Bahadur Gupta, AIR 1954 All 33 : 1954 Cr LJ 19 : 1953 All LJ 485; Saraswathi, AIR 1932 C 698 : 33 Cr LJ 634; Pal Singh, 33 Cr LJ 488; Rao Saheb, AIR 1946 Hyd 189 ]. Where there was mutual agreement between spouses to live separately and husband to pay Rs. 30 as maintenance, the court can pass maintenance order and husband cannot challenge in execution [Kalavati v Ausan, 1981 Cr LJ 74 : 1980 UPLR (Cri) 39 : 1981 Mat LR 25 (All)]. An agreement to pay half of salary to wife for maintenance does not imply a mutual consent to live apart Teasdale, AIR 1938 C 623]. A wife who lives apart by accepting a lump-sum amount lives separately by mutual consent [Ramshashi, AIR 1948 C 186]. To overcome the hurdle of sub-section (4), absence of mutual consent to live separately is not necessary [Bai Tahira Ali Hussain Fissalli Chothia, AIR 1979 SC 362 : 1979 Cr LJ 151 : (1979) 1 SCC 316 : 1979 (2) SCR 75 ]. If one of the parties living separately by mutual consent decided to put a stop to separate living, the wife gets a right to claim maintenance [Narashimha, AIR 1947 M 304].

Living separately by mutual consent cannot be equated with living separately because of consent decree. If the wife is refusing to live with the husband because of his cruelty, it cannot be said that the parties are living separately by mutual consent [Raghunath, (1987) Ind Jud Reports (MP) 83].

Wife cannot claim maintenance, if by agreement, parties are living separately. [Malayaiah v GS Vasantha Lakshmi, 1997 Cr LJ 163 : 1997 (1) Kant LJ 232 : 1997 (1) Cur Cr R 280 (Karn)]. [s 125.106] Separate residence claimed.— Wife’s mere claims for separate residence does not constitute recalcitrant behaviour when the request is made just to avoid bickerings [Manju Roy Sarkar v Narendranath Roy Sarkar, (1997) 1 Crimes 194 (Cal)]. [s 125.107] Divorced woman and desertion.— A divorced woman is entitled to maintenance even if the divorce was on ground of the desertion by the women herself. [Rohtash Singh v Ramendri, AIR 2000 SC 952 : (2000) Cr LJ 1498 , 1500 : (2000) 3 SCC 180 : 2000 (1) Crimes 293 para 9-A (SC)].

Page 66 of 82 [s 125] Order for maintenance of wives, children and parents.— Where wife left the house of her husband without reasonable excuse and such a finding was also recorded by the Family Court in petition for restitution of conjugal rights filed by the husband, it was held that she would not be entitled to maintenance allowance on application under section 125 of Code of Criminal Procedure, 1973 [Sanjay Sudhakar Bhosale v Khristina Sanjay Bhosale, 2008 Cr LJ (NOC) 833 (Bom) : 2008 (2) Bom CR 467 : 2008 All MR (Cri) 1244 : 2008 (3) AIR Bom R 325].

Existence of valid decree of divorce by itself is no ground to deny maintenance to wife [Chandrakant Gangaram Gawade v Sulochana Gawade, 1997 Cr LJ 520 : 1996 (3) Bom CR 603 : 1996 (2) Mah LJ 341 (Bom)].

Even a divorced woman who has been divorced on the ground that she had deserted the husband is entitled for maintenance under sub-section (1) of section 125 of Code of Criminal Procedure, 1973 [D Lakshmana Rao v D Kamala Bivi, 1996 Cr LJ 1058 , 1059 : 1996 APLJ (Cri) 29 : 1996 (1) Hindu LR 408 (AP)].

Where the allegation of unchastity against wife made by the husband was not established, then wife is entitled to live separately and claim maintenance [Sri Channa Keshavaiah v Smt. Lakshmi, AIR 2001 Kant HCR 283 : 2001 Cr LJ 187 : 2001 (3) Kant LJ 458 (Kant)]. [s 125.108] Divorce by mutual consent, if wife entitled to maintenance.— In a divorce suit, the wife had filed an affidavit expressing her consent for a divorce and during her examination, she had stated that she did not want to live the worldly life and wanted to renounce the world and also expressed her desire not to claim any maintenance from the petitioner. It was held that though on the above ground the suit for divorce on mutual consent was allowed, under law she was entitled to maintenance [Narendra Mohapatra v Manorama Mohapatra, 2004 Cr LJ 1949 : 2004 (2) Crimes 120 : 2004 Cut LT 471 : 2004 (2) Hindu LR 124 : 2004 (2) Marri LJ 529 : 2004 (27) Ori CR 530 : 2004 (1) Ori LR 305 : 2004 (3) Rec Cr R 162 (Ori)].

Marriage ties between the parties had been dissolved yet the claim for maintenance qua wife under the definition contained in the explanation (b) to section 125 of the Code continues unless parties make adjustments and come to terms regarding the quantum on the right of maintenance and mere divorce does not end right to maintenance simply on raising the plea, the application for maintenance filed by the O.P. No. 2 against the present petitioner cannot be thrown out and the learned Magistrate is to decide the question of aforesaid fact of payment of maintenance and to see whether there is a rational relation between the sum so allegedly paid and its potential as provision for maintenance and then to decide whether or not the petitioner husband can claim absolution from his obligation under section 125 of Code of Criminal Procedure, 1973 towards a divorced wife [Shankar Soren v State of WB, 2004 Cr LJ 3088 : 2004 (4) All CrLR 521 : 2004 (4) Rec Cr R 184 (Cal)].

In the instant case, the wife executed the agreement of divorce by mutual consent. The said agreement contained the stipulation that the wife had relinquished her right to claim maintenance. Held, such clause in the agreement, being opposed to public policy, could not be used for refusing to pay maintenance [Vineta Devangan v Rakesh Kumar, 2010 Cr LJ (NOC) 353 (CHH)].

Where by agreement, the parties divorced each other by customary system and lived separately by mutual consent, it was held that the wife would not be entitled to claim alimony from the husband after the date of execution of the agreement, if the said agreement had been acted upon and appropriate provision for maintenance had been made [Popat Kashinath Bodke v Kamalabai Popat Bodke, 2003 (2) Crimes 300 (302) (Bom)]. [s 125.109] Divorced woman living apart.— Although explanation (b) to section 125(1) enlarges the scope of the term “wife” for the purpose of chapter 9 it does not create any jural relationship between a divorced woman and her erstwhile husband and none of the grounds in sub-section (4) providing for cases denying maintenance to wife becomes applicable to a divorced woman. A woman whose marital ties do not subsist cannot be guilty of adultery much less she can be said to

Page 67 of 82 [s 125] Order for maintenance of wives, children and parents.— be “living in adultery”. A divorced woman has no obligation to live with her erstwhile husband and no question of mutual consent to live separately would arise in her case [Mariyumma, AIR 1978 K 231, FB]. Sub-sections (4) and (5) do not apply to a divorced wife [K Shanmukhan v G Sarojini, 1981 Cr LJ 830 (Ker); SS Manickam v Arputha Bhavani Rajam, 1980 Cr LJ 354 : 1979 Mad LW (Cri) 143 : 1980 Mad LJ (Cri) 327 (Mad)obiter]. Even though divorce deed is invalid, sub-sections (4) and (5) would not apply to wife who was living separately by virtue of that deed as the consciousness of a subsisting marriage was lacking [ASN Nair v Sulochona, 1981 Cr LJ 1898 : 1981 Ker LT 568 : 1981 Hindu LR 665 (Ker)].

The divorced wife is entitled for claiming maintenance against her former husband under section 125 of Code. [Khandu Madhu Kadbhane v Sitabai, 2001 Cr LJ 4339 : 2001 (2) Mah LJ 284 ; 2001 (2) Mah LR 288 (Bom); Vanamala v HM Ranganatha Bhatta, (1995) 5 SCC 299 : 1995 (3) Crimes 524 : 1996 (1) Hindu LR 69 ] as long as she is not remarried though divorce is taken by mutual consent [Gurmit Kaur v Surjit Singh, (1996) 1 SCC 39 : 1995 (4) Crimes 766 (SC); Sanjeev Kumar v State of UP, 2008 Cr LJ (NOC) 1044 (All)]. [s 125.110] Sub-section (5)—Reunion after order cancellation of order.— On proof of any of the three circumstances in sub-sections (4) and (5) a maintenance order shall be cancelled by the Magistrate who made the order or his successor [Bhagwania, 25 A 545]. If an order of maintenance has been made under section 125, it will operate until vacated or altered in terms of sub-sections (4) and (5) of section 125 or section 127 and it is enforceable, and no plea of co-habitationin the interegnum or of compromise can hold good as a valid defence to the execution of the order [Bhupinder Singh v Daljit Kaur, 1979 Cr LJ 198 : AIR 1979 SC 442 : (1979) 1 SCC 352 (SC)]. Sub-section (5) concerns the period subsequent to the passing of the order for maintenance. The order cancelling the order for maintenance being effective only from the date of the order of cancellation, the wife is entitled to get maintenance upto the date of order of cancellation [K Jagmaiah v K Seshirrekhamma, 1976 Cr LJ 219 : 1976 (1) Andh WR 220 : 1976 Mad LJ (Cri) 220 (AP)]. The reasons given in sub-section (5) for cancellation are not exhaustive [Peareylal, 37 Cr LJ 62]. Thus, an order can be cancelled after divorce [Shah Abu, 19 A 50; Din Md., 5A 226; Ludden, 14 C 276; Ahmad Kasim, 59 C 833; Abdul Ali, 7 B 80; Janni Bibi v Mohammed Abdul Rahaman, AIR 1955 AP 1 : 1955 Cr LJ 149 : 1954 (2) Mad LJ 210; Re : Mahomed Rahi Mullah, AIR 1947 Mad 461 : (1947) 47 48 Cr LJ 382 : 60 Mad LW 58 : 1947 (1) Mad LJ 70]. Even after separate maintenance order has been in force for some years, the husband can apply for cancellation on the ground that he is willing to take the wife back. She can resist only on the ground that there was sufficient cause to live apart [Appayyamma, AIR 1948 M 101]. As to what is “living in adultery” see notes under sub-section (4). Such adultery must be sufficiently proved [Kulwanti, AIR 1948 Pat 285 ; Jatindra, 29 Cal WN 647; Paiki, 9 Cr LJ 390]. [s 125.111] Arrears and adultery.— There is a divergence of opinion as to whether a plea of adultery, etc., under sub-section (4) can be raised when a maintenance order is put into execution [see ante notes to sub-section (3)]. When maintenance order is cancelled for adultery, arrears of past maintenance are also unrecoverable [Khandekar, AIR 1942 B 258; Hari Narayan, AIR 1952 MB 53 : 1952 Cr LJ 574 ; B Rukmini Bai v BB Suraj Bhan Singh, AIR 1963 AP 407 : 1963 (2) Cr LJ 492 : 1963 (1) Andh LT 339 : 1963 Mad LJ (Cri) 222—Contra : Tari Bala AIR 1938 C 144; Bhag Sultan, AIR 1930 L 99]. In an execution for arrears of maintenance, the Magistrate is not entitled to go into the question of the wife’s adultery prior to the order of maintenance. But when adultery is alleged since the order, it should be read under sub-section (5) and if maintenance order is cancelled on this ground it means as if there was no such order and past maintenance cannot be recovered [Kalyani Debi v Nirmal Kumar Panda, AIR 1957 Cal 115 : 1957 Cr LJ 177 ; (Laraiti, 5A 224 relied on)].

A single lapse is not sufficient to infer living in adultery, but there must be continuous course of adulterous conduct [Chandrakant Gangaram Gawde v Sulochan Gawade, 1997 Cr LJ 520 : 1996 (3) Rec Cr R 215 : 1996 (2) Civil Court C-275 : 1996 (3) Bom CR 603 (Bom)].

Once the husband starts paying the interim maintenance and continuously pays for a certain period, subsequently demanding its revision is not justifiable, he should have challenged it prior to giving consent and making payment [Jitendra Nath Sarkar v Dolia Sarkar, 1999 Cr LJ 2444 (Ori)].

For filing an application for recovery of arrears of maintenance, the period of limitation under section 125(3) of

Page 68 of 82 [s 125] Order for maintenance of wives, children and parents.— Act would start from date on which it becomes due. [Nanhi Bai v Netram, 2001 Cr LJ 4325 : 2001 (3) MPLJ 170 : 2001 (2) Hindu LR 488 (MP)]. [s 125.112] Second application.— An order dismissing an application under section 125 is final and the Magistrate cannot entertain a second application on the same facts [Mutesari, AIR 1917 C 608 : 17 Cr LJ 106; Sadruddin, 18 Cr LJ 326; Laraiti, 5 A 224] except where the application was dismissed for default without going into the merits [Monmohan, 24 Cal WN 32; Mg Hla, AIR 1927 R 328; Mehra, AIR 1929 L 32; AW Khan v Zaitunbi, AIR 1950 Nag 45 : 1950 Cr LJ 451 : 1950 Nag LJ 16 ]. Where an earlier application of wife for maintenance was dismissed on prayer made by wife without going into merits, second petition for maintenance filed by wife was held maintainable [Khem Singh v State of UP, 2003 Cr LJ NOC 295 : 2003 (2) UC 1445 (Uttar)]. Section 300 does not apply to an application under section 125 which is not a trial though ordinarily it should not be allowed on the same facts [Nafees Ara v Aasif Sadat Ali Khan, AIR 1963 All 143 : 1963 (1) Cr LJ 394 : 1962 All LJ 786 : 1962 All Cr R 364; Khan sup; Ram Chand Saudagar Ram v Jiwan Bai, AIR 1958 Punj 431 : 1958 Cr LJ 1437 : 60 Punj LR 147]. But subsequent application can be entertained on new grounds on account of change of circumstances [Mg Hla, 28 Cr LJ 912]. If the order on the basis of a compromise is unenforceable, a second application can be entertained even if a suit is brought on the basis of the compromise and is decreed [Gurdial Kaur v Jang Singh, AIR 1959 Punj 185 : 1959 Cr LJ 516 : ILR (1958 Punj 552 ]. When a previous application is dismissed on the basis of a compromise, a second application is not barred [Nathuram v Ramsri, AIR 1965 All 129 : 1965 (1) Cr LJ 273 : 1964 All LJ 72]. Dismissal of wife’s application to restrain husband from second marriage does not bar application under section 125 [Rabindra Biswal v Hemalata Biswal, (1990) Cr LJ 45 : (1989) Cut LT 346 : 1989 (2) DMC 418 (Ori)].

The wife filed an application for maintenance shortly after the marriage. Thus, husband objected that it was the wife who has deserted him and had refused to return. He filed two applications, one for divorce and the other for declaration of marriage as nullity. These applications were dismissed. The wife thereafter filed another application for maintenance. It was held that the passage of time and the happening of events subsequent to the dismissal of the first application constituted a change in the circumstances, removing the bar of res judicata. Therefore, the Magistrate was right in holding that the second application was maintainable [Sunanda Chandrakant v Chandrakant Bhaskar, 1989 Cr LJ 398 : (1988) 90 Bom LR 85 : 1988 Mah LJ 610 : 1988 (1) Bom CR 644 (Bom)].

A wife’s application was dismissed on the ground that she was living separately without just cause and that her husband had not refused or neglected to maintain her. Later, he obtained a divorce through the court. The wife applied again under section 125. The second application was not barred, as the applicant’s status had now changed [Mambekkattu Nanu v Mambekkattu Vasantha, 1984 Cr LJ 1206 : 1984 Ker LT 382 : 1984 (1) DMC 425 (Ker)].

Section 300 does not apply to application under section 125 which is not a trial. Second application on same facts is not barred though normally it would not be allowed [Nafees Ara v Aasif Saadat Ali Khan, AIR 1963 All 143 : 1963 (1) Cr LJ 394 : 1962 All LJ 786 : 1962 All Cr R 364; A.W. Khan v Zaitunbi, AIR 1950 Nag 45 : 1950 Cr LJ 451 : 1950 Nag LJ 16 ; Ram Chand Saudagar Ram v Jiwan Bai, AIR 1958 Punj 431 : 1958 Cr LJ 1437 : 60 Punj LR 147].

The application for awarding maintenance allowance to wife was refused but her minor daughter was allowed maintenance. The parties meanwhile entered into compromise to live together. On his husband failing to act upon compromise and driven out his wife from his house. Second subsequent application filed by wife ought to have been treated as application to enforce that compromise. It was not proper for the lower court to treat the same as fresh application and dismiss it as timebarred. Munshi Yadav v State of UP, 2006 Cr LJ (NOC) 262 (All) : 2006 (3) All LJ 309. [s 125.113] Appeal.— Where the accused took plea that the marriage between the parties was not valid, but the evidence adduced, by wife proved marriage between the parties, order granting maintenance to the wife was not interfered in appeal [Jitendra Nath Das v Minati Das, 2004 Cr LJ (NOC) 354 : 2004 (4) Cal HN 96 : 2004 (2) DMC 319 ]. [s 125.114] Remedy against an order—[Revisional].—

Page 69 of 82 [s 125] Order for maintenance of wives, children and parents.— There is no appeal from an order under this section [Gulam, 7 WR 10]. Revision lies to the High Court or to the Sessions Judge who has now full powers of revision as the High Court has (see sections 399, 401]. An ex parte order without service of notice under section 62 will be set aside [Pahilajrai v Jethi Bai, AIR 1959 Pat 433 : 1959 Cr LJ 1105 : 1959 (1) LLJ 272 ]. A Magistrate cannot review his own order [Nanda, 21 Cal WN 344]. If any error is committed, the proceedings should be submitted to the High Court (or the Sessions Judge) for rectification [SawGwan, AIR 1940 R 222]. When an application is dismissed, the remedy is a revision to the High Court (or to the Sessions Judge) [Subad, 20 WR 58; Parbati, sup]. The High Court (or the Sessions Judge) will not approach the matter as if it were a court of appeal [Ignatious, 36 Cr LJ 1044]. It will be very loth to interfere with a finding of fact as the party aggrieved may file a suit. But it will interfere with a maintenance order where there is no definite finding that the applicant is the wife [Lakshmi Ambalam, 39 Cr LJ 228 : AIR 1938 M 66], or when the amount is grossly inadequate [Ma E, AIR 1937 R 370]. Where the prayer is for cancellation of order on the ground of invalidity of marriage, the High Court (or the Sessions Judge) will not interfere as the petitioner ought to go to Civil Court for a declaration [Palmerino, 28 Cr LJ 51; Sailendra, 41 Cal WN 898].

A revisional court does not have any general power to reassess the evidence. [Rajmati v Mithai, (1999) Cr LJ 3378 : 1999 All LJ 1426 : 1999 (2) Crimes 537 : 2000 (1) Hindu LR 73 (All)].

The Family Court awarded maintenance under section 125 of the Code. The only remedy available against the orders is to file revision application. Appeal is not maintainable [Sunilkumar Kundanla Panchal v Meenaben Bhaskarbhai Parshottamdas Panchal, AIR 2017 (NOC) 587 (GUJ). [s 125.115] Amendment of petition.— The wife, after filing an application for maintenance, came to know about her husband’s second marriage and filed an application for amendment, which was allowed by the courts below. The High Court refused to interfere in revision because (i) the amendment had been rightly allowed and (ii) in any case, the High Court would not interfere with a discretionary order passed at the interlocutory stage. Opposite party can oppose it at the final hearing [Jayprakash Sumantrao Kale v Chandrakala Jayprakash Kale, 1984 Cr LJ 1257 : 1984 (2) DMC 233 (Bom)].

There is no specific bar in allowing amendment of petition filed under chapter IX of Code of Criminal Procedure, 1973. The proceedings under section 125 of Code of Criminal Procedure, 1973 being quasi criminal or qua curl, the amendment in application under section 125 would be allowed [Sainulabdheen v Beena, 2004 Cr LJ 2351 (2352) (Ker)]. Where the amendment does not change the nature of the proceedings or causes injustice to the other party, it would be allowed [Ehsan Ansari v State of Jharkhand, 2007 Cr LJ (NOC) 766 ; 2007 (2) AIR Jhar R 848 (Jhar)]. [s 125.116] Review/Recall of order.— An order passed in proceedings under section 125 of Code of Criminal Procedure, 1973 can be reviewed/recalled. Section 362 of Code of Criminal Procedure, 1973 is no bar [PK Kunhimohammad v Chenmala Nafeesa, 2004 Cr LJ 1000 (1002) Ker : 2003 (2) Crimes 92 : 2003 (1) Ker LT 364 : 2003 Mad LJ (Cri) 373]. [s 125.117] Delay in filing maintenance application.— Although there is no limitation prescribed in the statute for filing application for maintenance under section 125 of Code of Criminal Procedure, 1973, but at the same time, undue delay in having recourse to the court is required to be explained reasonably [Chandra Kalabai v Bhagwan Singh, 2002 Cr LJ 3970 (3972) (MP) : 2003 (2) Andh LD (Cr) 10 : I (2003) DMC 185].

In this case, it was the own case of wife that the husband left her in 1988 or 1989, i.e. two years after the alleged marriage in 1986. The petition under section 125 of Code of Criminal Procedure, 1973 was filed in the year 2001, i.e., after a delay of about 12 years. It was held that burden was on the wife to satisfactorily explain the delay [D Velusamy v D Patchaiammal, 2011 Cr LJ 320 (321) (SC) : AIR 2011 SC 479 : (2010) 10 SCC 469 : (2011) 1 SCC (Cri) 59 ]. [s 125.118] Revision—Interim maintenance.—

Page 70 of 82 [s 125] Order for maintenance of wives, children and parents.— In the Code of Criminal Procedure, 1973, there is no provision for filing an application for granting interim maintenance during the pendency of main application under section 125. The application for interim maintenance is, by itself, a separate matter and it has to be disposed of separately, much earlier than the final order in the main case. By an order of interim maintenance, the rights of the parties are affected and decided finally in respect of that subject matter, and by no stretch of imagination such an order can be called an interlocutory order. Therefore, a revision against an order granting interim maintenance is maintainable [Sumer Chandalias Sumar Nath v Sandhuran Rain, 1987 Cr LJ 1396 : 1987 (3) Crimes 9 : 1987 Chand Cr C 558 : 1987 (2) DMC 396 (P&H)].

Revision against order granting interim maintenance is not barred. In view of contrary view by Single Bench of the same High Court in 1992, Cr LJ 2605 has been referred to a Larger Bench [Joaguim Anthony D’Souza v Milinda Rosy D’Souza, 2010 Cr LJ (NOC) 535 (Bom)].

Order awarding interim maintenance pending proceedings under section 125 of Code of Criminal Procedure, 1973 can subsequently be modified or even cancelled by the court. It cannot therefore, be said to be final. It being interlocutory order, revision against it is not maintainable [Uttam Kumar Choubey v Kuar Devi, 2006 Cr LJ (NOC) 278 (Jhar) : 2005 AIR Jhar HCR 2583].

Against the orders passed under section 125 of Code of Criminal Procedure, 1973 revision would be and not an appeal as indicated in section 19(1) of the Family Courts Act, 1984 sub-section (4) of section 19 of the said Act is a special provision with regard to the orders passed under chapter IX of the Code of Criminal Procedure, 1973 [Nasreen Beghum v State of Jharkhand, 2006 Cr LJ 326 (Jhar)].

The wife in whose favour maintenance was awarded had deposed that she used to be ill-treated and assaulted by her husband now and then, and that her mother-in-law used to even deny her food at night, compelling her also to lie down and take her bed in cowsheds. In her evidence, she also made it clear that she was one day driven out from the house and that she was pregnant. She was corroborated in material particulars by other witnesses. The Trial Court awarded her maintenance. It was held that the judgment was not perverse, even though it appeared that the judgment was not happily awarded [Gopal Chandra Karar v Sadhana Karar, 1988 Cr LJ 1868 (Cal)]. Where allegation against the wife of leading adulterous life was not proved by cogent evidence, order of refusal to grant maintenance was set aside [Champa Devi v State of Jharkhand, 2004 Cr LJ (NOC) 193 (Jhar) : 2004 AIR Jhar HCR 2168 : 2004 (2) DMC 389 ].

A concurrent finding of fact that wife has successfully established the factum of marriage would not be interfered [Mohd. Imam Hussain Ansari v State of Jharkhand, 2005 Cr LJ 455 (456) (Jhar) : 2004 AIR Jhar HCR 3134 : 2005 (1) Hindu LR 272 : 2004 (2) JCJR 311].

The findings of Family Court relating to ill-treatment, cruelty and discretion would not be interfered in revision [Pranabandhu Pal v Inati Maharana, 2002 Cr LJ 1073 (1074) (Ori) : 2002 (22) OCR 63 ].

Findings of fact cannot be disturbed in revision [Pasuvaraj v Saraswathi, 1997 (1) Crimes I (Mad)]. Where there is a positive finding of fact recorded by Trial Court that husband has failed to maintain wife and neglected her, interference by revisional court by substituting its own finding and setting aside the order granting maintenance is without jurisdiction [Munesh Kumari v Sheo Raj Singh, 2003 Cr LJ 215 : 2002 All LJ 2619 : 2002 (45) All Cr C 848 : 2002 (3) All Cr C 2384 : 2003 (1) Rec Cr R 161 (All)].

The High Court shall not interfere in revision with positive finding in favour of the marriage and paternity of a child [Parvati Rani Sahoo v Bishnupada Sahoo, 2002 (2) Crimes 59 (60) (SC) : (2002) 10 SCC 510 : JT 2001 (10) SC 580 : 2002 (1) DMC 291 ].

Page 71 of 82 [s 125] Order for maintenance of wives, children and parents.— Where a finding is negative, the High Court would entertain the revision, revaluate the evidence and come to its own conclusion whether the finding reached by the Magistrate are legally sustainable or not, as negative finding has evil consequences on the life of both the child and the woman [Parvati Rani Sahoo v Bishnupada Sahoo, (2002) 10 SCC 510 : 2002 (2) Crimes 59 (60) (SC) : 2002 (3) Supreme 94 : 2002 (1) Hindu LR 442 ].

Revision filed against an order on application under section 125 of Code of Criminal Procedure, 1973 passed by Family Court shall be regarded as a criminal revision [Pranabandhu Pal v Inati Maharana, 2002 Cr LJ 1073 (1074) (Ori) : 2002 (22) OCR 63 ]. [s 125.119] Interim relief.— Interim maintenance pending final disposal of petition could be granted to the petitioner wife [Ratna Das v Dwijendra Das, 1990 Cr LJ (NOC) 31 : 1989 (20 Gau LR 241 : 1989 (20 DMC 472 (Gau)].

An order granting interim maintenance under section 125 of Code of Criminal Procedure, 1973 is an interlocutory one and is not subject to revision under section 397 (2) [Mamtaw/o A. Vaidya v Ashok M Vaidya, 1992 Cr LJ 2605 : 1992 (2) Rec Cr R 676 (Bom)].

Where wife received maintenance under interim order of the court and when found that she was not entitled to maintenance, she cannot be made liable to refund the amount [Vijaybhai Mohandas Narang v Janaki Vijaybhai Narang, AIR 2007 NOC 397 (Guj)].

Pendency of proceedings for nullity of marriage, wherein no interim directions have been issued, not a ground to refuse maintenance to wife [Manoj OK v M Sindhu, 2007 Cr LJ NOC 2 (Ker)]. [s 125.120] Procedure.— The inherent powers under section 482 are available only to the High Court. In the absence of any provision therefore, it was wrong in directing the petitioner to deposit the amount of arrears as a condition precedent to proceed with his application for modification of the impugned order [Ashok Yeshwant Samant v Smt. Suparna Ashok Samant, 1991 Cr LJ 766 : 1991 (1) Bom Cr 383 : 1990 Mah LJ 963 (Bom)].

Where on the face of the record itself, an aggrieved petitioner can show any illegality in the procedure or impropriety in exercise of any power of the Magistrate in passing ex parte maintenance order, there is no bar for such a petition in the High Court without first moving an application before the Magistrate under section 126 of the Code. It depends on the facts of each case to decide whether resort to the revisional power is possible or not by an aggrieved person before first exercising his remedy available under section 126 [S Bhupinder Singh Makkar v Narinder Kaur, (1990) Cr LJ 2265 : 1990 (2) DMC 214 (Del-HC)].

Application by wife was dismissed as she had failed to prove neglect or refusal to maintenence by husband. Revision against it was also dismissed. Petition under section 482 is not maintainable, even if, on the material on record, the finding that the husband did not neglect or refuse to maintain was not sustainable. Inherent powers cannot be invoked for correction of errors of fact or of law [Manubai v Sukhdeo, 1990 Cr LJ 646 : 1989 MPLJ 433 (MP)].

The Magistrate has jurisdiction to restore a proceeding under section 125 of Code of Criminal Procedure, 1973 to his file, when it is dismissed for default. The proceeding under section 125 is a proceeding of a civil nature, in which the Magistrate can invoke the inherent powers to recall his earlier order finally disposing of a proceeding of this nature, provided sufficient grounds are shown. A petition filed under section 125 of Code of Criminal Procedure, 1973 is not a complaint and the person who is arrayed as the opposite party is not an accused [SK Alauddinalias Alai Khan v Khadiza Bibialias Mst. Khodeja Khatun, 1991 Cr LJ 2035 (Cal) : I (1992) DMC 268 ]. [s 125.121] Res judicata .— In the earlier application for maintenance, the parties entered into compromise and decided to live together.

Page 72 of 82 [s 125] Order for maintenance of wives, children and parents.— The husband, however, flouted the compromise and threw the wife out of his house. It was held that the subsequent application for maintenance of his wife would be treated as application for enforcement of the compromise and would not be dismissed as barred by res judicata [Munish Yadav v State of UP, 2006 Cr LJ (NOC) 262 ; 2006 (3) ALJ 309 (All) : 2006 (54) All Cri C 691]. [s 125.122] Husband’s evidence.— Though in reply to show cause notice husband had denied that his monthly income was Rs. 4,500 p.m. he did not take that plea in evidence. Hence Magistrate was justified in taking his income at Rs. 4,500 on the principle of non-traverse [Pradeep Kumar Mukherjee v Chailati, 1996 Cr LJ 1161 , 1163 : 1996 (3) All Cr R 592 : 1996 (1) DMC 516 ]. [s 125.123] Burden of proof.— Although the burden of proof to establish a case under section 125 is on the party who claims maintenance, the party is not required to prove its case beyond reasonable doubt. The aggrieved party can establish its case on a preponderance of probability. When the wife claims a fixed amount of maintenance and the husband does not contest that the claimed amount is beyond his capacity or means, the court must assume that it tantamounts to admission of the financial capability of the husband to pay the amount. The claim of the wife for fixed and named sum as the allowance must be accepted on the principle of “no contest” and the court is bound to award maintenance at the monthly rate claimed [Sri Krishna Bahadur Pradhan v Tikamaya Newar, 1987 Cr LJ 1278 (Gau)]. Rule of best evidence is not applicable in maintenance proceeding as it being an inquiry in real sense. This being the quasicivil proceedings, probabilities are required to be brought on record. This enlarges the scope of drawing reasonable inference [Pendiyala Suresh Kumar v Sompally Arunbindu, 2005 Cr LJ 1455 (1456) (Guj) : 2005 (2) DMC 417 : 2004 CrLR (SC. Mah. Guj.) 738]. [s 125.124] Pleading—Place of marriage.— In a proceeding under section 125, mention of place of marriage in the petition is not necessary as, for the purposes of section 126 (jurisdiction of court) place of marriage has no relevance. [Veena Devi v Ashok Kumar, (2000) Cr LJ 2332 : 2000 (2) Pat LJR 437 : 2000 (1) BLJR 750 (Pat)]. [s 125.125] Parties.— Application by parent against one son alone is maintainable, even if other children are not made parties. When an order of maintenance is passed against any one under section 125, it is not to punish that person for the past neglect or failure to maintain. The object is merely to prevent the starvation of the person in whose favour the order is passed. The procedure has been simplified under section 125 so that the cumbersome procedure that has necessarily to be followed in enforcing a civil right of maintenance may be avoided. The jurisdiction of the Criminal Court being summary in nature is independent of and auxiliary to that of the Civil Court. This being the object behind the provision, it is clear that any parent who is unable to maintain himself or herself and who has a child, who has means, can resort to the above section for securing maintenance. The liability of a son to pay maintenance under the above provision is distinct from and independent of the liability of the other children in the family to maintain the parents. It cannot, therefore, be accepted as a proposition of law that unless all the children are made parties in a claim for maintenance by the parents, the latter would not be entitled for an order of maintenance [A Ahathinamiligai v Arumughnam, (1988) Cr LJ 6 : 1987 Mad LW (Cri) 278 (Mad)]. [s 125.126] Dismissal of petition.— An application for execution of order under section 125, if dismissed in default can be restored for sufficient cause, because proceedings under section 125 are civil in nature. [Kamla Devi v Mehma Singh, 1989 Cr LJ 1866 : (1989) 95 Punj LR 487 : 1989 (1) Chand LR (Cri) 492 : 1989 (1) Hindu LR 370 (P&H) overruling Bhagwan Singh, (1966) Cr LJ 129 ].

The wife moved an application for realisation of the amount of maintenance granted to her by the Magistrate. The husband preferred objections against the same and also filed separate petition for cancellation of the order granting maintenance, on the ground that the wife was living in adultery. Wife’s petition for divorce on the ground of adultery had, in the meantime, been dismissed for default. But the Magistrate dismissed both these objections under sections 125(4) and 125(5).

It was held that the Magistrate was perfectly wrong in disposing of both the objections under sections 125(4) and 125(5) of Code of Criminal Procedure, 1973, merely on the ground of dismissal, in default, of the petition for dissolution of the marriage on the ground of adultery. That plea did not come to an end by the dismissal of

Page 73 of 82 [s 125] Order for maintenance of wives, children and parents.— the suit. The plea could be taken in subsequent proceedings, so long as it was not finally disposed of on the merits. Case was remanded back to the Magistrate for deciding the application on the merits [KC Saxena v Vimlesh Kumari, 1988 Cr LJ (NOC) 15 (All)].

Where the order is passed without elaborating the reasons, it is not illegal. [Paraswath Kurmi v Sessions Judge, 1998 Cr LJ 1084 : 1998 AIHC 711 : 1998 (2) All Cr R 215 : 1998 (2) DMC 265 (All)]. [s 125.127] Restoration of petition.— Where a petition under section 125 of Code of Criminal Procedure, 1973 is dismissed for default, restoration lies and the sufficiency of cause for restoration is to be liberally construed [Kusum Devi v Ram Chandra Maurya, 2004 (1) Crimes 153 (156) (All)]. The Magistrate is empowered to restore the proceedings initiated under section 125 of Code of Criminal Procedure, 1973 which were dismissed in non-appearance of the complainant/ applicant [Kehari Singh v State of UP, 2005 Cr LJ 2330 (2332) (All) : 2005 All LJ 1263 : (2005) 52 All CrC 143 : 2006 (1) Marri LJ 79]. [s 125.128] Self Incrimination.— Article 20(3) of the Constitution only provides that no person accused of any offence shall be compelled to be a witness against himself. It does not say that an accused person shall not be a witness. By giving specimen handwriting, he is not giving evidence against himself. It becomes an evidence against him only when after due comparison with it and formation of opinion it is ultimately found that the disputed writing is that of himself. Section 73, therefore, does not offend Article20 (3) because by giving a direction under section 73 to give the specimen writing or signature the court does not compel him to be a witness against himself. A person against whom a proceeding under section 125 is pending cannot be a person accused of an offence. What is involved is only enforcement of a liability and punishment for a crime [Kumaran Nair v Bhargavi, 1988 Cr LJ 1000 : 1987 (2) Crimes 915 : 1987 (2) Ker LT 644 (Ker)]. [s 125.129] Legal Aid.— The poor and the neglected must be given legal aid or assistance by the State. It is the constitutional obligation of the State. It is the constitutional right of the poor to demand the legal assistance from the State. If the poor divorcee, the neglected children and parents do not get free legal assistance from the State to vindicate their rights, then sleeping over the matter would be anti-constitutional inaction. In the instant criminal revision, an Advocate was appointed Amicus Curiae for the wife, who was getting a paltry sum of Rs. 175/- per month as maintenance to sustain herself and her child, and hence, was unable to contest the proceeding [Mokshed Ali v Safura Khatoon, 1987 Cr LJ 1652 : 1986 (2) Gau LR 239 : 1986 (2) Crimes 502 : 1986 (2) Hindu LR 122 (Gau)].

In the instance case, Muslim woman moved an application under section 125 of Code of Criminal Procedure, 1973 for maintenance. But the provisions of section 125 of Code of Criminal Procedure, 1973 are applicable only if both parties exercise their option at the first hearing of application under section 3(2) of the Act. Where non-compliance of provision of section 3(2) of the Act is found, the provisions of section 125 of Code of Criminal Procedure, 1973 does not have any application and application has rightly been treated as one under section 3 of the Act. It was further held that minor children of divorced Muslim wife are not precluded from claiming maintenance under section 125 of Code of Criminal Procedure, 1973 from their father [Begum Bibi v Abdul Rajak Khan, 1995 Cr LJ 604 (Orissa)].

Adopted son is entitled to get maintenance under section 125 of Code of Criminal Procedure, 1973 [Gokul Behari Naik v Pantish Kumar Naik, 1995 Cr LJ 861 (Ori)]. [s 125.130] Quantum of maintenance Determination.— The quantum of maintenance must be determined by some reasonable grounds. In this case, High Court held that the main base for determination of the quantity of maintenance is income sources of husband but maximum amount of said maintenance also, has been prescribed by the Statute [Minati, Binati Nayak v Gouranga Charan Nayak, 1995 Cr LJ 3569 (Ori) : 1995 (2) Andh LT (Cr) 18 : 1995 (I) OLR 656 ].

Where claim for maintenance was done by adopted son, father was earning Rs. 833 per month and was

Page 74 of 82 [s 125] Order for maintenance of wives, children and parents.— required to maintain only wife but it was held that the granted amount for the maintenance of child, Rs. 200 per month, is proper [Gokul Behari Naik v Pantish Kumar Naik, 1995 Cr LJ 861 Ori (HC)].

If it could not be proved from the available evidence on record that wife had her own sources of earning, the order of awarding Rs. 300/- per month as maintenance was not held to be too much, and against this order, no challenge can be granted by the High Court [Lokesh Parameshwar Uchil v Lekha Lokesh Uchil, 1995 Cr LJ 1661 Ker : 1995 (3) RCR (Criminal) 156].

Where the wife had no independent income and the husband earned Rs. 3000/- pm., maintenance of Rs. 500/was granted to wife [Sunil Kumar Saren v Padmabati Saren, 2003 Cr LJ 2844 : 2003 (4) All CrLR 252 : 2003 (2) Hindu LR 383 : 2003 (4) Rec Cr R 183].

While determining the quantum of maintenance, the standard of living of parties may also be taken into consideration [Shakuntala v Rattan Lal, 1981 Cr LJ 1420 (HP)]. A wife is entitled to lead or decent life at par with the dignity and status of her husband [Jibanendra Mahapatra v Puspita Mahapatra, 2004 Cr LJ 1648 (1649) (Ori) : 2004 (2) DMC 403 : 2004 (3) All CrLR 396].

Maintenance amount and interim alimony awarded under section 125 of Code of Criminal Procedure, 1973 is adjustable against amount awarded in matrimonial proceedings under section 24 of Hindu Marriage Act as alimony to wife [Sudeep Chaudhary v Radha Chaudhary, AIR 1999 SC 536 : 1999 Cr LJ 466 : 1998 SCC (Cri) 160 ].

Where the husband was a retired employee of Air Force and had joined legal profession, maintenance at the rate of Rs. 300/- p.m. was allowed [Jibanendra Mahapatra v Puspita Mahapatra, 2004 Cr LJ 1648 (1649) (Ori) : 2004 (2) Hindu LR 142 : 2004 (3) Rec CrR 258]. In a case where there was no evidence that the wife had illicit relations with third person, wife deserted the husband on ground of husbands cruelty, wife was doing a petty job and husband had a monthly income of Rs. 2000/-and maintenance of Rs. 400/- p.m. was allowed [Vimla Singh v Surendra Singh, 1998 Cr LJ 1464 (Raj) : 1998 (2) Marri LJ 212 : 1998 (2) Rec CrR 568; see also Dhyanoba v Mukta Dghnanoba v Kamble, 2002 Cr LJ 4459 (4462) (Bom) : 2002 (5) Bom CR 552 : 2002 (4) Rec CrR 690].

Order granting maintenance at the rate of Rs. 1,500/- per month to a recently married spouse cannot be said to be excessive [Manoj OK v M Sindhu, 2007 Cr LJ NOC 2 (Ker)].

The husband cannot be allowed to keep investing money in different schemes and then claim to have no sufficient money to look after his family. The maintenance of Rs. 1000/- pm. was held reasonable [Ashok Mahadeorao Ramatkar v Sou. Rajni Ashok Ramtkar, 2010 Cr LJ (NOC) 539 (Bom)].

When an amount was already deposited long back during initial stage of proceedings, the same amount can be used by adjusting against arrears (after calculating of due interest, etc.) [Rankanidhi Behera v Jayanti Sahoo, (1999) Cr LJ 2127 (Ori)].

In the instant case, the wife had to remain with her parents and depended totally upon them for her maintenance. It was held that she under the circumstances would definitely be entitled to receive maintenance from her husband and that it could not be said to be justifiable that she would not be entitled to recover any arrears from her husband if she solemnized her second marriage. It was further held that the payment of maintenance would definitely come to an end on solemnization of her second marriage and she would be entitled to recover the awarded maintenance for, that period only [Ssvitri Pandey v Judge, Family Court, Allahabad, 2004 Cr LJ 3934 : 2004 All LJ 1692 : 2004 (50) All Cr C 72 : 2004 (2) All Cr R 1618 : 2004 (55) All LR 375 : 2004 (2) Crimes 27 : 2004 (2) Rec Cr R 160 (SC)].

Page 75 of 82 [s 125] Order for maintenance of wives, children and parents.— Where the wife desired to pursue her studies and she needed money for that purpose also. The amount attributable to expenses of education has to be included in the amount of maintenance [RB Bharathia Charyulu v RB Alivelu Manga Thayanu, AIR 1996 AP 238 : 1996 (1) AnWR 457 ].

Where the Umar was studying in IXth class and the income of his father was 5388/-p.m., amount of maintenance was enhanced in Rs. 600 to 1600 [Jayant Kumar v Kabita Laha, 1994 SCC (Cri) 1749 ].

In determining the quantum of maintenance, the status of the husband is a relevant consideration. This if the husband as an engineer is earning a certain amount, then the wife should also be equated to her husband’s status. Her requirements would be atleast 50% not merely of the husband’s requirements. If husband’s income exceeds Rs. 2000, she should normally have been awarded Rs. 750 [RB Bharatha Charyulu v RB Alivelu Manga Thayanu, AIR 1996 AP 238 : 1996 (1) AnWR 457 ].

In the instant case, the husband was having agricultural land to the extent of 7 acres and was getting Rs. 5000/- per month. It would held that even if the petitioner was treated as a coolie, he would get Rs. 1500/- per month. It was also held that since it was the case of wife that she was not possessed of any property and not getting any income she was to be maintained by her husband and that the grant of Rs. 400/- towards maintenance could not be said excessive [Seerangan v Selvi, 2003 Cr LJ 2092 : 2003 Mad LJ (Cri) 204 : 2003 (2) Mad LW (Cri) 540 : 2003 (3) Rec Cr R 486 (Mad)].

In the instant case, the husband having financial business faced financial crisis and was unable to conduct his business lucratively. It was held that as the father bound to maintain his children could not plead his financial crisis. The sum of Rs. 1250/- each in favour of two children was not excessive. The interim maintenance awarded to wife was reduced from Rs. 2500/- to Rs. 2000/- [S Suresh v Jaya Shree, 2009 Cr LJ (NOC) 994 (Mad)].

The appellant in her evidence has claimed that the respondent-husband drew a monthly salary of Rs. 2,000/- in the year 1993. Besides, he also had 20 acres of land and grew 40 quintals of paddy crop, 10 quintals of wheat crop, 4 quintals of urad and rawa crops and corns, etc. There is not even a word of cross-examination on these claims and these claims have gone unchallenged. He made a bold statement that there was no immovable property in his name. He had also categorically admitted that after coming out of the matrimonial house, he never maintained Saygo Bai, his wife. Considering, therefore, the overall situation, it is obvious that the respondent must be earning at least Rs. 10,000/- per month presently as salary being a constable in police force and also has other sources of income from agricultural properties. In that view, that maintenance at the rate of Rs. 1,500/- per month in favour of the appellant would be a proper maintenance [Saygo Bai v Chueeru Bajrangi, 2011 Cr LJ 1007 (1011) : AIR 2011 SC 1557 : (2010) 4 Crimes 340 (SC)].

Husband was earning Rs. 40–50 per day as labourer. Award of maintenance at the rate of Rs. 500/- pm. to wife was held not excessive [Raju v State of UP, 2010 Cr LJ (NOC) 1201 (All) : 2010 (4) ALJ 473 ].

Where the take away salary of husband, after deduction of contribution towards GPF was ascertained as Rs. 7,830/- pm., it was held that the maintenance of Rs. 3000/-being one-fourth of income was held proper [Mohammed Mustafa v Farida Banu, 2010 Cr LJ (NOC) 561 (Mad)].

Where the husband had income of Rs. 60,000 per annum and also derived income from 30 acres of agricultural land, wife was held entitled to maintenance of Rs. 3000/-per month [Shashi Dewangan v Nandlal Dewangan, 2006 Cr LJ (NOC) 388 (Chha) : 2006 (2) Crimes 468 ].

Where the material available on record showed that the husband, apart from doing construction work, was partner of bakery business and held lands and other properties and the husband did not come out with his

Page 76 of 82 [s 125] Order for maintenance of wives, children and parents.— exact income from different sources, the order granting maintenance of Rs. 25000/- per month to wife and daughter was not interfered with [Pervez Saghir Ahmad Ansari v Mrs. Sana Pervez Ansari, 2010 Cr LJ (NOC) 277 (Bom)].

The husband apart from his own source of income had share in agricultural land of 11 acres. He had no other liability, because of availability of source of income, due to his parents. Order awarding Rs. 800/- per month as maintenance was held proper [Minabai Kakasaheb Bodakhe v Kaksaheb Manikrao Bodakhe, 2009 Cr LJ (NOC) 1137 (Bom) : 2009 (2) Bom CR (Cri) 26 : 2009 All MR (Cri) 1394 : 2009 (4) AIR Bom R 645].

Where an army officer had sufficient means to maintain his wife, order granting amount of Rs. 500/- pm (now the ceiling of five hundred rupees has been removed vide the Code of Criminal Procedure (Amendment) Act, 2001) as maintenance to wife was held proper [Ashok Kumar Singh v VIth Additional Sessions Judge, Varanasi, AIR 1996 SC 333 : 1996 Cr LJ 392 : (1996) 1 SCC 554 : 1996 SCC (Cri) 161 (SC)].

Where the husband was a medical practitioner having sufficient means and earning a lot, maintenance amount of Rs. 2500/- pm. was enhanced to Rs. 35000/- pm [Geeta Mishra v Raj Narayan Mishra (Dr.), 2004 Cr LJ 4816 : 2004 All LJ 3204 : 2004 (2) All Cr R 1990 (All)].

Where there was no evidence to show that only son was earning and had substantial income; it was primary responsibility of husband only to maintain wife. The husband was in possession of two acres of fertile land and had sufficient income and therefore, maintenance amount of Rs. 1000/- pm. was held proper [Shanmugasundaram v Chinnamal, 2010 Cr LJ (NOC) 469 (Mad)].

In a case where Rs. 1500/- pm. was granted as maintenance to wife and child, it was alleged by husband that he being autodriver was not in a position to pay Rs. 1500/- pm. It was held that the said amount was necessary for wife and child to live and, therefore, no interference was warranted [KM Tajuddin v Shakire Parveen, 2010 Cr LJ (NOC) 82 (Mad)].

The husband had admitted that he was drawing a salary of Rs. 2000 per month. Hence the award of Rs. 400 per month (to the wife) and Rs. 200 per month (to the minor son) was held to be reasonable [Tejram v Sunanda, 1996 Cr LJ 172 , 173 : 1996 (1) Hindu LR 304 (Bom)].

Sessions Judge should not reduce the amount of maintenance from Rs. 150 pm to Rs. 100 pm when the husband has got a house and also landed properties [Vijaya v Raman, (1997) 1 Crimes 485 (Mad)].

The husband admitted that he was employed in Telecom Department and during the year 2000, he was drawing a salary of Rs. 18000/- pm. When he was examined in 2007, he had admitted that his salary income was Rs. 32000/- pm. It was held that the maintenance to each, the wife and minor daughter @ Rs. 3000/- pm, was proper [Hussain v Smt. Nagina, 2010 Cr LJ 1506 (1510) (Kant) : ILR 2009 KARNATAKA 4619 : 2010 (4) KCCR 3190 : 2010 (2) RCR (Criminal) 438].

Court is empowered to grant maintenance more than the amount claimed in the petition on change in circumstances [S Brahmanandam v S Rama Devi, 2007 Cr LJ 811 (AP) : 2007 (2) Andh LT (Cr) 26 : 2007 (1) Andh LD (Cr) 627 : 2007 (3) RCR (Criminal) 633]. [s 125.131] Proof of income.— Incometax returns and incometax assessment orders are perfect proof of the income [Anita Tambe v State of Maharashtra, 2007 Cr LJ (NOC) 773 : 2007 (4) AIR Bom R 470 (Bom) : 2007 (2) Bom CR (Cri) 227 : 2007 All MR (Cri) 1807]. [s 125.132] Lump-sum payment.—

Page 77 of 82 [s 125] Order for maintenance of wives, children and parents.— Where in proceedings under section 498-A certain amount was paid by way of compromise to the wife, it did not preclude the wife from claiming maintenance under section 125 of Code of Criminal Procedure, 1973 [Ramesh Chandra Pandey v State of Bihar, 2006 (3) PLJR 135 (Pat)].

In the instant case, it was admitted position that the applicant-husband was working in the Government department and he was receiving pension. In absence of any assertion in his reply before the court that he was earning a particular amount, the inference drawn by the revisional court that the wife was entitled for Rs. 1500/towards maintenance was held proper [Gulabrao Nagorao Ingole v Dwarkabai Gulabrao Ingole, 2010 Cr LJ 1471 (1477-78) (Bom) : 2010 (1) AIR Bom R 713 : 2010 All MR (Cri) 470 : 2010 (1) Bom CR (Cri) 616 ].

The MP Amendment Act, 1998 increased the amount of maintenance from Rs. 500/- to Rs. 3000/- and the Central Act Amendments of 2001 removed the ceiling of Rs. 500/- and allowed the court to fix such amount as it thought fit. In view of the above, the award of Rs. 5000/- to wife and Rs. 1500/- to minor child was held proper [Piyushkant Sharma v Smt. Pragati Sharma, 2010 Cr LJ (NOC) 464 (MP)].

The take away salary of husband who was an administrative executive was Rs. 4000/- pm. As a lady with child, it would require at least a sum of Rs. 100/- per day towards cost of living during the relevant period. Maintenance was enhanced to Rs. 2700/- from Rs. 1000/- in favour of wife and child [Kala v T Sashindrakumar, 2010 Cr LJ (NOC) 467 (Mad)].

Where the husband being poor farmer expressed his inability to pay maintenance, it was held that the alienation of immovable property subsequent to filing claim petition would not be taken note of, but in view of the fact that wife was living in her father’s house without paying any rent, the maintenance amount was reduced from Rs. 2000/-pm to Rs. 1500/- pm [N Sampath v Rajkumari, 2010 Cr LJ (NOC) 468 (Mad)]. [s 125.133] Maintenance to deaf and dumb wife.— Where the husband married second time and there was no evidence to show that he was not affluent enough to pay a sum of Rs. 2000/- pm to his wife, the High Court did not interfere with order granting maintenance @ Rs. 2000/- pm [SK Mumtaz v State of Jharkhand, 2006 Cr LJ (NOC) 271 (Jhar) : 2006 (1) AIR Jhar R 618].

Dismissal of revision petition.—

When a petition for revision against the quantum of maintenance is dismissed by the Court of Session on the merits then a second petition (to the High Court) under section 482 of the Code is not maintainable [KK Reddy v A Anantha Lakshman, (1992) Cr LJ 1933 (AP)]. [s 125.134] Alteration in maintenance.— An application for alteration in maintenance allowance on ground of change in circumstances can be filed by either party. It is not required that the petitioner in the proceedings under section 125 of Code of Criminal Procedure, 1973 should file the application for alteration in maintenance [Sarvesh Kumar v State, 2007 Cr LJ (NOC) 845 : 2007 (5) ALJ 230 (All)]. [s 125.135] Enhancement of maintenance.— Where the wife filed petition for enhancement of maintenance from Rs. 1500/- to Rs. 6000/- but the Family Court enhanced the amount to Rs. 7000/-. The order of the court is not justified and order was modified [Arun Ram v State of Jharkhand, 2006 Cr LJ (NOC) 154 (Jhar) : 2006 (1) AIR Jhar R 384].

Considering income of father, amount of maintenance granted to the daughter, who at the time of application, was more than three years was enhanced from Rs. 200/- to Rs. 350/- pm. from date of order [Babita Gangwar v Ram Pal Gangwar, 2010 Cr LJ (NOC) 49 ].

Page 78 of 82 [s 125] Order for maintenance of wives, children and parents.— In this case, the wife and daughter sought enhancement of maintenance. The husband pleaded that he was not in a position to enhance the maintenance as he had taken huge loan for solemnising his other daughter’s marriage and for a payment of loan, a sum of Rs. 3500/- was being deducted from his salary every month. However, on verification of his salary, it was revealed, that he was contributing a sum of Rs. 1000/- towards General Provident Fund. Held, though his take away pay was Rs. 3854/- in stricto senso his disposable monthly income was Rs. 5000/-. In view of the cost of living, each of wife and daughter were entitled to Rs. 1000/- pm [Rani v M Sundramurthy¸ 2010 Cr LJ (NOC) 84 (Mad)].

For the enhancement of maintenance, wife can file simple application and can adduce evidence to prove her entitlement. Strict rules of pleadings do not apply to criminal proceedings and application for amendment need not be filed to claim higher maintenance. Mere mentioning of wrong provision of law in application does not deprive the Magistrate from especially passing appropriate order, especially in the matrimonial case under section 125 of Code of Criminal Procedure, 1973 [Ravindra Ramchandra Tingare v Sou Ashiwini Ravindra Tingare, 2010 Cr LJ (NOC) 98 (Bom)].

Enhancement without notice.—

Magistrate should not enhance the interim maintenance without hearing the husband’s point of view [Jitendra Nath Sarkar v Dalia Sarkar, 1999 Cr LJ 2444 (Ori) : (1999) 16 OCR 255 : 1999 (3) RCR (Criminal) 732].

Jurisdiction to award higher amount. Central Act prevails and operates until subsequent state amendments provides for upper limit [HS Basavaraj v (Smt) B. Rashmi, AIR 2007 NOC 425 : 2007 (1) AIR Kar R 621 (Kant)]. [s 125.136] Enhancement of Maintenance under Uttar Pradesh Amendment.— Under a Uttar Pradesh Amendment of 2000, the amount has been increased to Rs. 5000/-. Accordingly, an award of Rs. 275/- was enhanced to Rs. 750. The woman was physically handicapped. She was deserted by her husband while she had a female baby of about 4 months in her lap. The baby was at the time of the application a married woman. Her mother (reasonist) had to perform social obligations towards her. That is why the revision was allowed [Chitra Pandey v Shyam Vishal Pandey, 2003 Cr LJ 2712 : 2003 All LJ 1358 : 2003 (46) All Cr C 810 : 2003 (3) Rec Cr R 377 (SC)]. [s 125.137] Maintenance evidence and procedure.— Where the child was about 12 years studying in middle standard, the maintenance to child was enhanced from Rs. 600/-to Rs. 2000/- pm. [Phool Kumari v Hemsagar Choudhary, 2010 Cr LJ (NOC) 1210 (CHH)]. In this case, Trial Court passed an order of maintenance in favour of wife and her daughter that they would get at the rate of Rs. 400/- per month from her husband. The said order was passed on the ground that she and her daughter were subjected to cruelty. But when this order was reversed by the Revisional Court, it was held that the revisional order in question was not maintainable [Arefabanu Majid Khan Pathan v Mohammed Hanif Hussainmiya, 1995 Cr LJ 2881 (Guj) : 1994 GLH (2) 95 : (1994) 1 GLR 886 ].

Where from the perusal of available evidence on records, it was clear that marriage between the parties was established legally it was held that wife was authorised to get maintenance from her husband [Lokesh Parmeshwar Uchil v Lekha Uchil, 1995 Cr LJ 1661 Ker : 1995 (3) RCR (Criminal) 156].

Where one woman claimed maintenance from a man as his wife on the ground that marriage was performed between both of them by exchange of garlands, High Court held that system of marriage in question is not permitted in law and therefore the said woman is not entitled to get maintenance from him [Madhab Pradhan v Ketaki Pradhan, 1995 Cr LJ 1785 (Ori) : I (1995) DMC 657 : 1995 (2) RCR (Criminal) 712].

In instant case, where husband made allegation against her wife of adultery but he could not prove this fact; High Court held that wife can live separately from her husband and she is also entitled to get maintenance from

Page 79 of 82 [s 125] Order for maintenance of wives, children and parents.— him [Arana Kar v Dr Sarat Kumar Dashalias Nachhi, 1995 Cr LJ 3526 (Ori) : 1994 (2) OLR 584 : 1994 (II) OLR 584 ].

If husband has become a “Sadhu”, by bringing such kind of change in his life, he cannot be discharged from his responsibility to maintain his family’s members like wife and children [Hardev Singh v State of UP, 1995 Cr LJ 1652 (All) : I (1995) DMC 623 ].

Grant of maintenance to divorced Muslim woman not illegal as word “wife” includes divorcee [Md. Tahir v State, 2002 Cr LJ 389 : (2001) 94 DLT 454 : (2002) 61 DRJ 68 (Del)].

Wife working in Anganbadi and earning only Rs. 300/- p.m. is entitled to claim maintenance for herself and her minor child [Ramavtar Sharma v Smt. Santosh, 2001 Cr LJ 2650 : 2001 (2) Raj LR 145 : 2001 (1) Raj Cr C 597 (Raj)].

Since an application for grant of maintenance is pending for last 4 years with no fault on part of applicant, hence grant of maintenance from date of application is not illegal [Md. Tahir v State, 2002 Cr LJ 389 : (2001) 94 DLT 454 : (2002) 61 DRJ 68 (Del)].

Decree of divorce passed in favour of husband would not disentitle divorced wife to claim maintenance from her husband [Ramavtar Sharma v Smt. Santosh, 2001 Cr LJ 2650 : 2001 (2) Raj LR 145 : 2001 (1) Raj Cr C 597 (Raj)]. [s 125.138] Power of attorney holder when court directs personal appearance of party.— Where in proceedings under section 125 of Code of Criminal Procedure, 1973, the court directs the husband to remain present personally before the court, his father, as power of attorney cannot represent him in the proceedings [Pravin Niwntte Sawant v Sou. Nisha Pravin Sawant, 2008 Cr LJ (NOC) 169 : 2008 (6) AIR Bom R 536 (Bom) : 2007 (2) Bom CR (Cri) 891 ]. [s 125.139] Interim maintenance.— Where the proceedings under section 125 of Code of Criminal Procedure, 1973 is pending between the parties, the court has not only jurisdiction to grant maintenance for wife but also has power to pass order of interim maintenance in favour of her [Kunjlal v Sushila, 1995 Cr LJ 1972 Bombay : II (1995) DMC 520 : 1995 (2) RCR (Criminal) 714 ].

When from the perusal of records, it was prima facie established that a valid marriage was solemnized between the parties, High Court held that wife is entitled to get interim maintenance from her husband [Kunjlal v Sushila, 1995 Cr LJ 1972 (Bombay)].

When the wife is very poor and begging, application for interim maintenance cannot be rejected on ground that application was not signed by her but by her counsel [Balram Argidda v A Chandramma, 1997 Cr LJ 1305 : 1997 (1) DMC 23 : 1997 (2) Andh LD 802 (AP)].

Interim order for maintenance is provisional in nature and is subject to adjustment later [Karasanji Chatarji Hadiyol v Jasuben Ram Singhji Parmar., 1998 Cr LJ 273 : 1998 (10 Guj LR 231 : 1998 (1) DMC 588 (Guj)].

Even on affidavits, interim maintenance can be granted as recording of evidence is not necessary [Suresh v Lalita, 2002 Cr LJ 380 : 2002 (1) Raj LR 263 : 2002 (1) Hindu LR 463 (Raj)].

The speaking order of Magistrate granting interim maintenance not liable to be interferred with by Sessions Judge [Suryakanti Rao v Sarathi Rao, 2001 Cr LJ (NOC) 122 (Ori)].

Page 80 of 82 [s 125] Order for maintenance of wives, children and parents.— [s 125.140] Permanent alimony maintenance.— Permanent alimony can be granted, even though the marriage of a spouse has been declared null and void under section 11 of the Hindu Marriage Act, 1955 [S Venkatesan v Maheshwari, (2007) 1 Mad LJ (Cr) 347 (Mad)]. [s 125.141] Date of payment.— Maintenance can be made payable at enhanced rate under section 127 from date of application [Kamatchi v Veluchamy, 1997 Cr LJ 418 : 1996 (2) Mad LW (Cri) 681 : 1996 Mad LJ (Cri) 665 : 1996 (2) DMC 286 (Mad)].

Order directing payment of maintenance from date of petition would advance the interest of justice and cannot be interfered with [Manoj OK v M Sindhu, 2007 Cr LJ NOC 2 (Ker)].

Magistrate has to record reasons granting maintenance from date of application [S Brahmanandam v S Rama Devi, 2007 Cr LJ 811 (AP)]. [s 125.142] Reasons for setting the date.— The Magistrate passing an order under section 125 is not bound to state the reasons for setting the date from which he is awarding maintenance (of course, he is bound to record the reasons for granting maintenance, though the section does not say so) [Thulasi v Luxman Rao, (1996) Cr LJ 1160 , 1161 : 1996 (1) Crimes 320 : 1996 (1) APLJ 70 (AP)]. [s 125.143] Impotence.— Cruelty is a ground for judicial separation or divorce. Wife of an impotent person is justified in claiming separate maintenance [Ashok Kumar Singh v Sixth Additional Sessions Judge, AIR 1996 SC 333 : 1995 AIR SCW 4132 : 1996 Cr LJ 392 ].

It would be perpetual agony for the wife to live with an impotent husband. [s 125.144] Witness.— Close relations in such cases are quite natural and best witnesses. [Suhana S Nagori v Sikandarkhan Bilalkhan Nagori, 1997(1) Crimes 467 : 1997 Cr LJ 3388 : 1997 (1) Guj LJ 272 : 1997 CrLR (Guj) 135 (Guj)]. [s 125.145] Jurisdiction of Family Court.— Family Court has no jurisdiction to strike out defence for non-payment of interim maintenance allowed by the court [Vinod v Chhaya, 2003 (1) Crimes 458 (459) (Bom)].

After enactment of the Family Courts Act, 1984, parties are not entitled to engage any lawyer in the matrimonial matter before the Family Court. In the result, they are not aware about the procedure which is to be followed in a matrimonial matter including the maintenance. The court should inform the parties regarding the proceedings as to how they have to prove their own case. In the instant case, it was admitted position that the wife had not been examined by the court below and as a result, she could not get opportunity to prove her case. In absence of her evidence, the evidence of other witnesses produced and examined by her was held to have no value in the eye of law. The order granting maintenance was quashed and the case was remanded back for deciding afresh [Bishu Dhar v Smt. Mousami Dey, 2010 Cr LJ 1630 (1632) (Gau) : (2010) 4 GLR 390 : 2009 (5) GLT 563 ].

Appeal under section 19(1) of the Family Courts Act, 1984 cannot lie against an order of maintenance passed by a Family Court under section 125 of Code of Criminal Procedure, 1973. Section 125 comes under chapter IX of the Code of Criminal Procedure, 1973 and there is a bar on filing appeal against an order passed under chapter IX of the Code [Geeta Bareth v Keshav Prasad Bareth, AIR 2013 Chh 3 (DB) : I (2013) DMC 681 : 2012 (5) MPHT 23]. [s 125.146] Waiver.— In a maintenance claim, husband took the plea that they had executed a divorce deed and wife had accepted

Page 81 of 82 [s 125] Order for maintenance of wives, children and parents.— Rs. 750/- and had waived her right to alimony, but wife disputed this by saying that neither there was any divorce nor any amount as alimony was paid to her. Evidence showed that it was difficult to believe that wife would waive her right to future maintenance for small sum of Rs. 750/-. Since wife was unable to maintain herself, granting maintenance of Rs. 200/- p.m. was held proper [Lahu Suka Panpatil v Leelabai Dhuru Shirsath, 2007 Cr LJ (NOC) 36 (Bom) : 2006 BCI 42 : 2006 (6) AIR HCR 103 : 2006 All MR (Cri) 3405 : AIR 1979 SC 362 was relied on]. [s 125.147] Jurisdiction of High Court under section 482 of CrPC and under Article 227 of the Constitution.— An order granting maintenance based on proper appreciation of evidence would not be interfered with under inherent powers [Ram Shankar Tewari v Sharda Tiwari, 2003 Cr LJ (NOC) 21 : 2002 (2) MPLJ 394 : 2002 (3) Rec CrR 57]. An order allowing amendment of application under section 125 of Code of Criminal Procedure, 1973 could not be interfered with in exercise of powers under section 482 of Code of Criminal Procedure, 1973 [Sainulabdin v Beena, 2004 Cr LJ 2351 (2352) (Ker) : 2004 (3) Crimes 327 : 2004 (1) Ker LT 859 ]. The merits of concurrent findings of lower courts that the wife is unable to maintain herself and the respondent is not maintaining her cannot be looked into by the High Court in exercise of its powers under section 482 of Code of Criminal Procedure, 1973 [Mast Ram v Shanti Devi, 2002 Cr LJ 1616 (1617) (HP) : 2002 (2) Hindu LR 459 ; See also Asit Baran Mukherjee v Fuleswari Mukherjee, 2003 Cr LJ 1344 (1346) (Cal) : 2003 (1) SLR 242 ].

The Superior Court would not interfere with the concurrent findings of courts below that the petitioner was a married wife and not maid servant of the opposite party [Dhani Ram Sahu v State of Jharkhand, 2008 Cr LJ (NOC) 1282 : 2008 (3) AIR Jhar R 229 (Jhar)].

Where the order of interim maintenance was passed, the very day the application for interim maintenance was filed without giving an opportunity to the husband for filing reply, the High Court in order to secure the ends of justice, interfered in exercise of its inherent powers [Vijay Kumar v State of Rajasthan, 2004 (2) Crimes 352 (354) (Raj)]. In a case where the High Court is convinced that a deserted woman who repeatedly knocked at doors is on the verge of destitution, the High Court itself has jurisdiction to direct suitable maintenance being awarded and to secure compliance with its directions if the subordinate courts failed to grant or enforce the same relief [Shail v Manoj Kumar, 2004 SCC (Cri) 140 (1402) : (2004) 4 SCC 785 ].

The wife claimed maintenance but husband pleaded that wife had voluntarily left his house and was living in adultery. Facts of case suggested that it was not an isolated or solitary instance of lapse in character on part of wife. Therefore, both court below refused to grant maintenance and High Court finding no infirmity in lower courts order refused to interfere in the matter [Sukro Devi v State, 2008 Cr LJ 1144 (Jhar) : 2008 (1) AIR Jhar R 38 : 2007 (4) JCR Jha 385].

Family Court has jurisdiction to entertain application by wife for amendment of proceedings [Binod Kumar Singh v State of Jharkhand, 2010 Cr LJ (NOC) 570 (Jhar) : 2010 (1) AIR Jhar R 317]. [s 125.148] Past arrears.— Where in a case at the instance of the parties the matter was pending before Sessions Judge/High Court, the petition for recovery of arrears with one year from the date of order in revision was held not barred and the wife was entitled to arrears from the date of order of Magistrate granting maintenance [Pundalik v Sharada Bai, 2008 Cr LJ (NOC) 548 (Kant) : 2008 (5) Kant LJ 182 : 2008 (2) AIR Kant R 114]. [s 125.149] Custody of Child and section 125. The grant of custody of child in favour of applicant father on the basis of findings in criminal proceedings under section 125 of the Code was held improper [Smt Akshi Yadav v Pradeep Yadav, AIR 2017 SC 115 ]. [s 125.150] One-time alimony. The husband was working in Tata Telcome and was earning was Rs. 30,000/- per month. The wife was also working as computer programmer. Both of them had a son. The M. P. High Court after taking into consideration the standard of life being led by parties and the education and maintenance of minor son granted one-time alimony of Rs. 10,00,000/- to wife [Smt. Rashmi Porwal v Vivek Porwal, AIR 2015 (NOC) 133 (M.P.)].

Page 82 of 82 [s 125] Order for maintenance of wives, children and parents.—

1

Words “not exceeding five hundred rupees in the whole” omitted by the Code of Criminal Procedure (Amendment) Act, 2001 (50 of 2001), section 2 (w.e.f. 24 September-2001).

2

Inserted by the Code of Criminal Procedure (Amendment) Act, 2001 (50 of 2001), section 2 (w.e.f. 24 September2001).

3

Substituted by the Code of Criminal Procedure (Amendment) Act, 2001 (50 of 2001), section 2 (w.e.f. 24 September2001). Before substitution, sub-section (2) stood as under: “(2) Such allowance shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance.”

4

Substituted by the Code of Criminal Procedure (Amendment) Act, 2001 (50 of 2001), section 2 (w.e.f. 24 September 2001) for the word “allowance”.

5

Substituted by the Code of Criminal Procedure (Amendment) Act, 2001 (50 of 2001), section 2 (w.e.f. 24 September 2001) for the word “allowance”.

6

The words “one thousand and five hundred rupees” omitted by WB Act 33 of 2001.

End of Document

[s 126] Procedure.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER IX ORDER FOR MAINTENANCE OF WIVES, CHILDREN AND PARENTS

The Code of Criminal Procedure, 1973 CHAPTER IX ORDER FOR MAINTENANCE OF WIVES, CHILDREN AND PARENTS [s 126] Procedure.— (1) Proceedings under section 125 may be taken against any person in any district— (a) where he is, or (b) where he or his wife resides, or (c) where he last resided with his wife, or as the case may be, with the mother of the illegitimate child. (2) All evidence in such proceedings shall be taken in the presence of the person against whom an order for payment of maintenance is proposed to be made, or, when his personal attendance is dispensed with, in the presence of his pleader, and shall be recorded in the manner prescribed for summonscases: Provided that if the Magistrate is satisfied that the person against whom an order for payment of maintenance is proposed to be made is wilfully avoiding service, or wilfully neglecting to attend the court, the Magistrate may proceed to hear and determine the case ex parte and any order so made may be set aside for good cause shown on an application made within three months from the date thereof subject to such terms including terms as to payment of costs to the opposite party as the Magistrate may think just and proper. (3) The court in dealing with applications under section 125 shall have power to make such order as to costs as may be just. [s 126.1] Changes.— Sub-sections (1), (2) and (3) correspond to sub-sections (8), (6) and (7) respectively of the old section 488 with the following changes :

(1) In sub-section (1) old sub-section (8) has been redrafted into clauses (a), (b) and (c) the only substantial change being the addition of the words “his wife” in clause (b). (2) In sub-section (2), the words “person against whom an order for payment of maintenance is proposed to be made” have been substituted for “husband or father, as the case may be”.

Page 2 of 6 [s 126] Procedure.— (3) In the proviso to sub-section (2), the words “person against whom an order for payment of maintenance is proposed to be made” have been substituted for “he” and certain words have been added.

Material changes introduced are:

(1) for the convenience of wives, venue of the proceedings has been enlarged by including the place where the wife resides on the date of application. (2) The addition of the words in proviso has been made (see italicised words) to enable the Magistrate to award costs where an ex parte order is set aside. [s 126.2] Scope and application of section 126: [sub-section (1)].— “Reside” does not only mean domicile in the technical sense. It means something more than a flying visit or a casual stay. There shall be an intention to stay for a period, the length of which depending upon the circumstances of each case. A person resides in a place, if he makes it his abode permanently or even temporarily. It depends on the facts of each case—The same meaning should be given to the words “resides” and “last resided” [Jagir Kuar v Jaswant Singh, AIR 1963 SC 1521 : 1963 (2) Cr LJ 413 (SC) (cases discussed)]. In interpreting “district” regard must be had to the expression “any district where he resides”. District means any court in district in which husband resides and is not limited to that court within whose jurisdiction husband resides [Shantabai, AIR 965 B 107]. An application may be filed against a person in any district where (i) the person is or (ii) he or his wife resides, or (iii) he last resided with his wife or the mother of the illegitimate child. “Reside” implies more than “stay”. It implies some intention to remain at a place and not merely to pay a casual visit [Balakrishana, AIR 1942 M 66]. Application filed by wife at the place where she is residing cannot be dismissed by Magistrate on ground that husband is not residing within his jurisdiction [Kumutham v Kannappan, AIR 1999 SC 839 : (1998) 5 SCC 693 : 1998 SCC (Cri) 1377 ]. It should be considered whether the period of stay was merely for a visit or for residence although temporary [Dadan Singh v Shakuntala Devi, 1957 BLJR 19 ]. To reside means to live or to have a dwelling place or an abode. The fact that a person’s father lives at a certain place and he goes there sometimes does not give jurisdiction [Rifaqatullah Khan v Emperor, AIR 1947 All 4 : (1947) 48 Cr LJ 208 : 1946 All LJ 305 (1) : 228 IC 325]. So, visiting the wife casually at a place would not give the court their jurisdiction [Satwant Singh v Jaswant Kaur, 1956 All LJ 134]. “Residence” suggests a certain continuity, not a mere flying visit. Where a man resides for sometimes in the house of his parents-in-law with his wife, that is sufficient residence [Gangabai v Pamanmal Lachman, AIR 1938, Sind 223 : (1939) 40 Cr LJ 117 ; Sama Jetha, 54 B 548 : AIR 1930 B 438; Allah Ditta, AIR 1928 L 853]. Where husband and wife left their permanent residence and stayed for two months at Agra, that temporary residence gives jurisdiction [Sher Singh, 49 A 479; see Emperorv Musommat Janki, AIR 1932 Nag 85 : (1933) 34 Cr LJ 32 (2) : 15 Nag LJ 24; Jolly, 21 Cal WN 782; Sardari, AIR 1951 Pu 84 ]. Sub-section (1) should be construed liberally so that a helpless woman is not deprived of assistance from a court easily accessible to her [Sampooranam v N. Sundaresan, AIR 1953 Mad 78 : 1953 Cr LJ 274 : 1952 (2) Mad LJ 573 : 1952 Mad WN 746]. Where a person has a fixed place of residence, an occasional visit to another place does not give jurisdiction [Khajrunnessa, 53 B 781; Ramdei, A 1926 (O) 268; Jivanlal v Shambai, AIR 1941 Nag 17 : (1941) 42 Cr LJ 647 : 1941 Nag LJ 199 : ILR (1941) Nag 262 ; Ramkumar, 22 Cr LJ 710].

The expression “resides” includes both temporary and permanent residence but does not include a “casual or flying visit or a brief stay” [K Mohan v Balakanta Lakshmi, 1983 Cr LJ 1316 : 1982 Mad LW (Cri) 256 : 1983 Mad LJ (Cri) 497 (Mad)].

The words “or is” (now, where he is) indicate that proceedings can be taken against a person at a place where he works for gain, though he may not reside there [Rupchand Issardas v Emperor, AIR 1942 Sind 32 : (1942) 43 Cr LJ 551 ; Indubala Devi v Satchid Prasad, AIR 1939 Cal 333 : (1939) 40 Cr LJ 598 : ILR (1939) 1 Cal 345 ; Panchagopal, 59 Cal WN 767].

Page 3 of 6 [s 126] Procedure.— An application by the father on the mother claiming maintenance has to be filed where the person from whom maintenance is claimed lives. The expression “is” cannot be given the same meaning as the word “reside” or the expression “the last resided”. It cannotes, in the context, the presence or the existence of persons in the district where the proceedings are taken. It is wider in its concept than the word “resides” and what matters is the physical presence at the particular point of time. The expression “is” cannot be constined to be a fleeting presence, though it may not necessarily for considerable length of time as the expression “resides” may require. Although the expression normally refers to the present after it has a future meaning. It may also have a part signification as the sense of has been. The true intention has to be contextually culled out [Vijay Kumar Prasad v State of Bihar, AIR 2004 SC 2123 : 2004 AIR SCW 2276 : AIR 2004 Jhar HCR 1541 : 2004 Cr LJ 2047 : 2004 (2) Crimes 412 (SC)]. [s 126.3] Residence.— “Last resided” connotes some sort of permanent intention to stay and not a mere casual visit to a place. Where the parties have no home of any sort and are moving from place to place, each place where they live would be their home for the time being [Charandas v Surasti Bai, AIR 1940 Lah 449 : (1941) 42 Cr LJ 105 : 42 Punj LR 470; Ramdei, 27 Cr LJ 820]. “Resides” includes temporary or permanent residence but not flying visit [Dadan Singh v Shakuntala Devi, 1957 BLJR 19 ; Abdul Hamid Sadiq v Bibi Ashrafunnissa, AIR 1965 Pat 344 : 1965 (2) Cr LJ 236 ].

Where the wife deserted by her husband was residing with her uncle, the court in the district place of residence of her uncle was held competent to decide the application of maintenance [Khem Singh v State of UP, 2003 Cr LJ NOC 295 : 2003 (2) UC 1445 (Uttaranchal)].

When the wife was staying with her brother at place D but was employed at place N, it was held that the court at D had jurisdiction to entertain the maintenance application [Kesari Devi v Jadgev Singh, 2005 Cr LJ 1091 (1093) (HP) : 2005 (1) Shim LC 24 : 2005 (2) DMC 704 ].

Jurisdiction is determined by the residence of the parties. It is immaterial if the child is outside the jurisdiction of the court or even out of India [James Fredrick Rowland v Raynah Rowland, 62 Cal WN 221 : AIR 1959 Cal 703 : 1959 Cr LJ 1315 ].

An order passed would not be bad merely because proceedings were taken in a wrong court. Section 531 (now section 462) applies [Rajkumari, AIR 1977 SC 1101 : 1977 Cr LJ 940 : (1977) 2 SCC 190 (SC); Sitaram, AIR 1929 C 336; Mung Paik v Mauohn Sint, AIR 1939 Rang 210 : 182 IC 671 : (1939) 40 Cr LJ 702 : Balwant, 38 PLR 963; Panchugopal, 59 WN 767 : Ambalal Narandas Patel v Dhiben Dahyabhai Patel, AIR 1963 Guj 91 : 91 : 1963 (1) Cr LJ 594 ].

A father’s application for maintenance can be filed at the place where he resides. Such interpretation is justified not only by reasons of its being beneficial in nature, but also on an analogy of section 177 [Ananth Gopal Pai v Gopal Naryan Pai, 1985 Cr LJ 152 : 1984 (2) Kant LC 171 : ILR (1985) Kant 2607 : 1985 (1) Hindu LR 222 (Kant)]. [s 126.4] Domicile.— The claim for maintenance made by the neglected or deserted wife and child cannot be defeated by the husband merely on the basis of his alleged domicile in one of the American States. National law is of universal application throughout the territory of India, irrespective of status of the husband. The Code confers jurisdiction on courts in respect of application under section 125 to such court where the wife resides. Hence, the jurisdiction is not ousted by invoking principles of international law [Dipak Banerjee v Sudipta Banerjee v Sudipta Banerjee, 1988 Cr LJ 1627 : (1988) 92 Cal WN 352 : 1987 Cal LT 491 : 1987 (2) Hindu LR 66 (Cal)]. [s 126.5] Jurisdiction of Criminal Court.— An Additional District Magistrate cannot pass administrative order awarding maintenance to the wife under section 125 of Code of Criminal Procedure, 1973, as he is not an appropriate authority [Sanju Rabidas v State of Bihar, 2003 (1) Crimes 611 (613) (Jhar)].

Page 4 of 6 [s 126] Procedure.— [s 126.6] Sub-section (2).— Sub-section (2) is mandatory. There can be no preliminary enquiry before summoning the other party [Nandlal Misra v K L Misras, AIR 1960 SC 882 : 1960 Cr LJ 1246 (SC) ante]. The word “all” emphasises the fact that no evidence shall be taken in the absence of the father or the husband, as the case may be, or their pleader [Nandlal, sup]. No order should be passed under the section without notice to the opposite party [Barot Jetbai v Barot Gova Nath, AIR 1952 Kutch 85 : 1952 Cr LJ 1675 ]. Service is to be effected under section 62 read with sections 64 and 65. Notification in the Gazette is insufficient [Pahilajrai v Jethi Bai, AIR 1959 Pat 433 : 1959 Cr LJ 1105 : 1959 (1) LLJ 272 ]. Service through registered post [Gurnam Singh v E. Datto, AIR 1950 Punj 20 : (1950) 51 Cr LJ 390 ; see section 62] or through Civil Court processserver [Revappa v Gurusanthawwa, AIR 1960 Mys 198 : 1960 Cr LJ 1107 : 1960 Mad LJ (Cri) 149] is invalid—Contra : Notice sent through registered post is a valid notice [Nagorao Hiraman, (1990) 1 HLR 436 (Bom)]. The petition has to be decided in accordance with the procedure laid down in chapter IX which is self-contained and hence strict rules of pleadings applicable in civil suits cannot be applied. Accordingly, wife’s petition cannot be dismissed for not averring that she is unable to maintain herself [Malan v Baburao Yeshwant Jadhav, 1981 Cr LJ 184 : 1980 (2) Kant LJ 414 : ILR (1980) 2 Kant 1323 (Kant)]. Order of dismissal of an application for maintenance for default of appearance before evidence is recorded is administrative in nature and Magistrate can restore it, section 362 being no bar [Prema Jain v Sudhir Kumar Jain, 1980 Cr LJ 80 : ILR (1980) 1 Del 237 : 1980 Hndu LR 384 (Del)]. Proceedings under chapter IX are judicial [Laratti, sup: Nanda, 21 Cal WN 344]. Evidence is to be recorded under section 274 [Kalidasi, 20 C 351]. Magistrate must make a memorandum of the substance of the evidence given. The case cannot be decided on affidavits [Naranappa v Puttamma, AIR 1963 Mys 174 : 1963 (1) Cr LJ 787 ]. Where there is no application for dispensing with personal attendance or any order to that effect, an order passed on evidence not taken in the presence of the opposite party must be set aside [Rupchand Issardas v Emperor, AIR 1942 Sind 32 : 1942 43 Cr LJ 551 ; Indubala Devi v Satchid Prasad, AIR 1939 Cal 333 : ILR (1939) 1 Cal 345 : (1939) 40 Cr LJ 598 ; Harmuzshah, 2 Bom LR 700 : Venkatrao v Rukminibai, AIR 1954 Hyd 178 : 1954 Cr LJ 1291 : ILR (1954) Mys 30 ; [Anil Ranjan Sen v Anuprama Sen, AIR 1959 Tri 26 : 1959 Cr LJ 776 ]. It has also been held that record of evidence in the absence of husband, but in the presence of his counsel, is not fatal, where there is no prejudice [Major Jogindar Singh v Bibi Raj Mohinder Kaur, AIR 1960 Punj 249 : 1960 Cr LJ 640 : ILR (1960) Punj 222 : 1960 Cr LJ 640 ; Arunkumar Surajmal Jain v Chandanbai Rupchandsa Jain, 1980 Cr LJ 601 (Bom)]. See also section 273, section 313 : does not apply [Vithaldas, AIR 1928, B 347; Mehr, A 1929, L 32; Sew Kumher v Mongru (Mongri) Kumaharin, AIR 1959 Cal 454 : 1959 All LJ 834 : 63 Cal WN 341 : 1959 Cal LJ 39 ; see however De Mello, 27 Cr LJ 1000]. So a person against whom proceedings are instituted under section 125 may give evidence [Hi-rananda, 9 Cal WN; Nur Md., 16 C 781; Bachal, 25 Cr LJ 1091; Karnail Singh v Bachan Kaur, AIR 1955 Punj 26 : 1955 Cr LJ 334 : ILR (1954) Punj 206 ].

Limitation of three months for setting aside the ex parte order of maintenance begins from the date of knowledge of the order to the aggrieved party [Shobhanath v Sukhmaniya, 2014 Cr LJ 4685 (Chhattisgarh)]. [s 126.7] Ex parte proceedings.— There is no definition of ex parte but the word is to be understood in the same sense as is Orders IX and XVII of Code of Civil Procedure, 1908 [Maung Batun v Ma Kyway, AIR 1939 Rang 151 : (1939) 40 Cr LJ 537 : 181 IC 377; Suresh Sharma v Snagita Sharma, 2015 Cr LJ 334 (Chhattisgarh)].

Subjective satisfaction of the Magistrate is required before passing an ex parte order. When there is no such satisfaction, there is no question of limitation [State v Bhimrao, AIR 1963 Mys 239 : 1963 (2) Cr LJ 293 ; Khembai v Kajindar, 1981 Cr LJ 690 : 1981 Mat LR 234 (Kant)]. Magistrate need not record reasons for his satisfaction if it is writ large on the record and reflected in the final order [Arunkumar, sup— Contra : Anil Ranjan Sen v Anuprama Sen, AIR 1959 Tri 26 : 1959 Cr LJ 776 ]. The ex parte order may be cancelled if the person affected applies within three months and shows sufficient cause for non-appearance [Mg Tan, 24 Cr LJ 928 : AIR 1923 R 159]. Three months from the date of the order and not from date of knowledge of the order [AS Govindan v Margaret Jayammal, AIR 1950 Mad 153 : 1950 Cr LJ 455 : 62 Mad LW 760 (2) : 1949 (2) Mad LJ 557; Hari Singh Ishar Singh Jat v Dhanno Harisingh, 1962 (2) Cr LJ 581 : 64 Punj LR 59 (Punj); Hyder Khan v Soffoora Bee., AIR 1968 Mys 98 : 1968 Cr LJ 525 : 1966 (2) Mys LJ 765 : 1967 Mad LJ (Cri) 221; Parson Kaur v Bakshish Singh, AIR 1971 88 : 1971 Cr LJ 489 : 1970 Cur LJ 172 ].—Contra : from date of knowledge of order [Zohra Begum v Mohamed Ghouse Qadri Qadeeri, AIR 1966 AP 50 : 1966 Cr LJ 129 : 1965 (2) Andh WR 293 : 1965 Mad LJ (Cri) 703; Meenakshi Ammal v Somasundaran Nadar, AIR 1970 Mad 242 : 1970 Cr LJ 817 : 1969 Mad LW (Cri) 264 ; M Ram Krishna v Satyamma, 2005 Cr LJ (NOC) 272 (AP) : 2005 (3) Andh LT

Page 5 of 6 [s 126] Procedure.— (Cri) 481 : 2006 (1) Rec CrR 585; Hemendra Nath Chowdhury v Archana Choudhury, AIR 1971 Cal 244 : 1971 Cr LJ 817 ; Md. Akbar Ali Sardar v Khatoon Bibi, 1977 Cr LJ 1654 : 1977 (2) Cal LJ 347 : 1977 (4) Cal HN 836 (Cal) (cases reviewed)]. Application for setting aside ex parte order was filed after 16 months without showing any good cause for the inordinate delay. It was held that the application was not maintainable [Khem Singh v State of UP, 2003 Cr LJ NOC 295 : 2003 (2) UC 1445 (Uttar); Shobhanath v Sukhmaniya, 2014 Cr LJ 4685 (Chhattisgarh)].

When the counsel does not inform the opposite party (husband) about the date fixed and himself defaults in appearance, the court should have a lenient, liberal and compassionate approach, and ex parte order of maintenance would be set aside [Mirza Hasan Beg v Ishrat Yasmeen, 2004 Cr LJ 4330 (4331) (MP) : 2004 (3) MPLJ 177 : 2004 (2) Hindu LR 289 ].

Presence of petitioner was exempted on his request and evidence was recorded in his pleader’s presence. It was held that no illegality was committed and no prejudice was caused to petitioner [Abdurahima v Khadeeja, (1988) Cr LJ 28 : 1987 (1) Ker LT 755 : 1987 (2) Hindu LR 263 (Ker)].

Where applicant had adopted dilatory tactics to avoid payment of maintenance allowance granted, then recall application deserves to be rejected [Shakil Ahmad v State of UP, 2001 Cr LJ 632 : 2000 All LJ 2964 : 2000 (29) All Cr R 2636 (All)]. [s 126.8] Ex parte order of maintenance.— Ex parte order of maintenance without calculating details of salary/monthly income of the husband liable to be set aside [Nandlal Sharma v State of Jharkhand, AIR 2007 DOC 83 : 2006 (4) East Cric 596 (Jhar)].

The proviso to section 126 of Code of Criminal Procedure, 1973 shows that the ex parte order may be set aside upon good cause being shown and in setting aside ex parte order, including the terms of imposition of costs, some other terms may also be imposed, which the Magistrate thinks just and proper [Inamul Haq v Shahin Jahan; 2014 (3) ACR 3234 , 2014 (87) ALLCC 65].

Limitation for setting aside the ex parte order of maintenance under proviso to sub-section (2) of section 126 of the Code will begin from the date of knowledge of the order to the aggrieved party and not from the date of passing of the ex parte order of maintenance, as any other interpretation will defeat the intention of legislature and would not be expedient in the interests of justice. If the ex parte order for maintenance is vitiated because of absence of a legal service, the ultimate order passed is not a legal and proper and it is for the aggrieved party/petitioner to prove that he came to know about the order only on the date stated in the application for setting aside the ex parte order of maintenance and not earlier [Shobhanath v Sukhmaniya, 2014 Cr LJ 4685 : 2014 (5) MPHT 27 (CG)]. [s 126.9] Evidence of paternity.— Husband or wife can be examined to prove non-access and consequent illegitimacy of child [Howe, 38 M 466; Rozario, 18 B 468; Shyam Singh v Saibalini Ghosh, AIR 1947 Cal 183 : 50 Cal WN 916 : (1946) 47 Cr LJ 870 : 81 Cal LJ 320; see Sarkar’s Evidence, 13th Edn, section 112, pp 1020–21]. Birth register record furnished by the mother is not evidence of paternity [B Mahadeva Rao v Yesoda Bai., AIR 1962 Mad 141 : 1962 (1) Cr LJ 437 (2) : 1962 All WR (Supp) 19]. [s 126.10] Preliminary inquiry not needed.— Sections 200–203 do not apply to an application under section 125. The chapter is a self-contained one and the section does not contemplate a preliminary enquiry as to the paternity of the child before issuing notice to the respondent. A preliminary enquiry by examining the applicant without sending notice to the opposite party and following the procedure in section 126(2) is not legal. The section confers power on the Magistrate to decide, though in a summary manner, the paternity of the child. The Magistrate dismissed the application presumably oppressed by the high status of the respondent. When setting aside the Magistrate’s order, the Supreme Court observed: “In the Courts of law, there cannot be a double standard—one for the highly placed and another for the rest [Nandlal Misra v KL Misra, AIR 1960 SC 882 : 1960 Cr LJ 1246 . It was an application under section 125 against the respondent, the Advocate General of UP].

Page 6 of 6 [s 126] Procedure.— [s 126.11] Sub-section (3).— Costs may be awarded to the successful party in order to compensate for the expenses incurred. High Court may award costs in revision [Yesubai v Parasram Daji, (1933) 34 Cr LJ 140 : 34 Bom LR 1449 : 141 IC 34; Keni, 49 M 891; Ma Tin Tin v Maung Aye, AIR 1941 Rang 135 : (1941) 42 Cr LJ 690 ]. Cost can be recovered by distress warrant under section 421 [Maung Tun Zan v Ma Myaing, AIR 1941 Rang 247 : (1942) 43 Cr LJ 30 ]. [s 126.12] Revision.— Mother claimed maintenance from her husband and son did not raise the plea of want of jurisdiction during the course of trial. He took this plea in revision filed against order of Family Court. It was held that court in revision could not set aside order of Family Court on ground of territorial jurisdiction in view of contents of section 462. The lack of territorial jurisdiction may at the most be an irregularity but not an illegality [Rafiuddin v Saleha Khatoon, 2008 Cr LJ (NOC) 291 (Bom) : 2008 (1) AIR Bom R 411 : 2008 (1) Bom CR (Cri) 61 : 2008 (1) Mah LJ 18 : 2007 All MR (Cri) 3207]. End of Document

[s 127] Alteration in allowance.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER IX ORDER FOR MAINTENANCE OF WIVES, CHILDREN AND PARENTS

The Code of Criminal Procedure, 1973 CHAPTER IX ORDER FOR MAINTENANCE OF WIVES, CHILDREN AND PARENTS [s 127] Alteration in allowance.— 7[(1) On proof of a change in these circumstances of any person, receiving under section 125 a monthly allowance for the maintenance or interim maintenance, or ordered under the same section to pay a monthly allowance, for the maintenance or interim maintenance, to his wife, child, father or mother, as the case may be, the Magistrate may make such alteration, as he thinks fit, in the allowance for the maintenance or the interim maintenance as the case may be.] (2) Where it appears to the Magistrate that, in consequence of any decision of a competent Civil Court, any order made under section 125 should be cancelled or varied, he shall cancel the order or, as the case may be, vary the same accordingly. (3) Where any order has been made under section 125 in favour of a woman who has been divorced by, or has obtained a divorce from, her husband, the Magistrate shall, if he is satisfied that— (a) the woman has, after the date of such divorce, remarried cancel such order as from the date of her remarriage; (b) the woman has been divorced by her husband and that she has received, whether before or after the date of the said order, the whole of the sum which, under any customary or personal law applicable to the parties, was payable on such divorce, cancel such order,— (i)

in the case where such sum was paid before such order, from the date on which such order was made;

(ii) in any other case, from the date of expiry of the period, if any, for which maintenance has been actually paid by the husband to the woman; (c) the woman has obtained a divorce from her husband and that she had voluntarily surrendered her rights to 8[maintenance or interim maintenance, as the case may be,] after her divorce, cancel the order from the date thereof. (4) At the time of making any decree for the recovery of any maintenance or dowry by any person, to whom a 9[monthly allowance for the maintenance and interim maintenance or any of them has been ordered] to be paid under section 125, the Civil Court shall take into account the sum which has been paid to, or recovered by, such person 10[as monthly allowance from the maintenance and interim maintenance or any of them, as the case may be, in pursuance of] the said order. [s 127.1] State Amendments in section 127 Madhya Pradesh.—In its application to the State of Madhya Pradesh, in sub-section of section 127, of the Principal Act, for the words “father or mother” the words “father, mother, grand father, grand mother” shall be

Page 2 of 11 [s 127] Alteration in allowance.— substituted vide M.P. Act 15 of 2004, section 3 (assented on 26 November 2004 and published in M.P. Gazette (Extraordinary) dated 6 December 2004).

Maharashtra.—The following amendments were made by Maharashtra Act 21 of 1999, section 3 (with effect ffrom 20 April 1999).

In its application to the State of Maharashtra, in section 127—

(a) in sub-section (1), in the proviso, for the words “five hundred rupees”, substitute “fifteen hundred rupees”. (b) in sub-section (4),—

(i)

for the words “monthly allowance”, where they occur for the first time, substitute “maintenance allowance”;

(ii) after the words “monthly allowance”, where they occur for the second time, insert “or, as the case may be, the lump-sum allowance”.

[Note: These State Amendments were made prior to the enactment of the Code of Criminal Proce-dure, 2001 (Central Act 50 of 2001), section 3 (with effect from 24-September 2001)].

Rajasthan.—The following amendments were made by Rajasthan Act 3 of 2001, section 3.

In its application to the State of Rajasthan, in section 127, sub-section (1), for the words “five hundred” occurring after the words “the monthly rate of” and before the words “rupees in the whole”, substitute “two thousand five hundred”.

Tripura.—The following amendments were made by Tripura Act 9 of 1999, section 3 (with effect from 9 April 1999).

In its application to the State of Tripura, in section 127, sub-section (1), in the proviso, for the words “five hundred rupees”, substitute “one thousand rupees”.

[Note: This State Amendment was made prior to the enactment of Code of Criminal Procedure (Amendment) Act, 2001 (Central Act 50 of 2001) by which the words “not exceeding five hundred rupees) in the whole” have been omitted (See section 2, Code of Criminal Procedure (Amendment) Act, 2001 (with effect from 24 September 2001)].

Uttar Pradesh.—The following amendments were made by UP Act 36 of 2000, section 3 (with effect from 13 August 2001).

Page 3 of 11 [s 127] Alteration in allowance.— In its application to the State of Uttar Pradesh, in section 127, sub-section (1), in the proviso, for the words “five hundred rupees”, substitute “five thousand rupees”.

Section 127(1).—In the proviso in sub-section (1) of section 127 of the principal Act, for the words “five hundred rupees”, the words “one thousand and five hundred rupees” shall be substituted.

[Note: This State Amendment was made prior to the enactment of Code of Criminal Procedure (Amendment) Act, 2001 (Central Act 50 of 2001) by which the words “not exceeding five hundred rupees) in the whole “have been omitted (See section 2, Code of Criminal Procedure (Amendment) Act, 2001 (with effect from 24 September 2001)].

West Bengal.— (1)The following amendments were made by W.B. Act 14 of 1995, section 2 (with effect from 2 August 1995).

In its application to the State of West Bengal, the proviso to sub-section (1) of section 127 of the Principal Act, for the words “five hundred rupees”, the words “one thousand and five hundred rupees” shall be substituted. [vide W.B. Act 14 of 1995, section 3 (with effect from 2August1993)].

(2) In its application to the State of West Bengal, in sub-section (1) of section 127 of the Principal Act, the proviso shall be omitted. [vide W.B. Act 33 of 2001, section 4]. COMMENTS [s 127.2] Changes.— Sub-sections (1) and (2) correspond to sub-section (1) and (2) of the old section 489 addition of the italicised words. Sub-sections (3) and (4) have been newly added.

Additions of sub-sections (3) and (4) are consequential on the amendments made in section 125. Sub-section (4) clarifies that the monthly allowance, if any, ordered by any court under this provision shall be taken into account by a Civil Court when it proceeds to pass a decree for maintenance or dower in respect of the same person. [s 127.2.1] Code of Criminal Procedure (Amendment) Act, 2001.— This Amendment Act has substituted sub-section (1) of section 127 of the Code of Criminal Procedure, 1973. The amended section now provides that the Magistrate may make such alteration in the allowance for the maintenance or the interim maintenance as he thinks fit, on proof of a change in the circumstances of any person receiving a monthly allowance for the maintenance or interim maintenance under section 125, or who has been ordered under the same section to pay a monthly allowance, for the maintenance or interim maintenance, to his wife, child, father or mother. In addition to substitution of sub-section (1), following changes have been made in sub-sections (3) and (4) of section 127 of the Code vide CrPC (Amendment) Act, 2001:

(i)

The words “maintenance or interim maintenance” were substituted for “maintenance” under section 127(3)(c);

(ii) The words “monthly allowance for the maintenance and interim maintenance or any of them has been ordered” were substituted for “monthly allowance has been ordered” and “as monthly allowance from the maintenance and interim maintenance or any of them, as the case may be, in pursuance of” were substituted for “as monthly allowance in pursuance of” in sub-section (4) of section 127. [s 127.3] Scope and application of section 127.— Section 127 empowers the Magistrate to alter or modify the order of maintenance on account of (i) a change in the circumstances of the party paying or receiving the maintenance, or (ii) any decision of a competent Civil Court. The party entitled to alteration of the order can always move the Magistrate when there is a change of

Page 4 of 11 [s 127] Alteration in allowance.— circumstances [Shanno Devi, 53 Cr LJ 473; Musammat Lilawanti v Madan Gopal, (1936) 37 Cr LJ 68 : AIR 1935 Lah 24 : 159 IC 310]. Section 127 should be read as a proviso to section 125 and so read the other part of section 125 becomes applicable to a proceeding under section 127 [TK Thayumanuvar (Dr.) v Asanambal Ammal, AIR 1958 Mys 190 : 1958 Cr LJ 1522 : 1958 Mad LJ (Cri) 754].

The word “decision” appearing in section 127(2) of the Code means the determination of question or controversy and not the ground or reason which weigh with the court in arriving at such decision. [Satish Chandra Dwivedi v Manju Dwivedi, 2014 Cr LJ 4722 (Chhattisgarh)].

A petition under section 127 of Code of Criminal Procedure, 1973 cannot filed be for the purpose of re-agitating the plea of divorce. Moreover, a plain reading of section 127 of Code of Criminal Procedure, 1973 will at once make it clear, that for applicability of this section, there must be change in the circumstances after the grant of maintenance [SK Omar Ali v Aopia Bibi, 1998 Cr LJ 752 : 1998 (2) All CrLR 486 (Cal)].

In a petition under section 127 of the Code, the scope of enquiry is confined to the question whether there is any change of circumstances to increase the quantum of maintenance allowance. The contention of the petitioner disputing paternity is legally unsustainable in a petition under section 127 of the Code [Anil S Pillai v Sudha S, RPFC. No. 135 of 2014, High Court of Kerala, decided on 26 September 2014].

The fact of the retirement of husband cannot be the sole ground to reduce the maintenance by 50% [Shamima Farooqui v Shahid Khan, AIR 2015 SC 2025 ]. [s 127.4] Cancellation or modification.— An order under section 125 can be modified under this section [Budhni, 27 A 11] although it has been corrected in revision [Hazi v Musammat Fatma, AIR 1932 Sind 59 : (1932) 33 Cr LJ 646 (1) 138 IC 624 (1)]. Order can also be cancelled under section 125 (5). Under this section, the wife can apply for increase of her or her child’s maintenance. The opposite party can also apply for reduction or for cancellation of order on account of a Civil Court decree, e.g., for restitution for conjugal rights, invalidity of marriage, divorce, etc.

An order of maintenance can be cancelled on the application of both parties that they have compromised. If thereafter the wife is ill-treated again, she can file a fresh application for maintenance [Tetri v Ram Newaj, AIR 1950 Cal 168 : (1950) 51 Cr LJ 724 ]. As to whether resumption of co-habitation annuls orders of maintenance [see ante notes to section 125(5)].

Order of maintenance cannot be quashed on the ground that alimony has been granted to wife under Hindu Marriage Act [Naresh Kumar Rai v Mamta Rai, 2003 Cr LJ NOC 266 : 2003 (2) Chand LR (Civ Cri) 643 : 2003 (2) Hindu LR 399 : 2003 (3) Rec Cr R 66 : 2003 (3) Rec Cr R 65 (MP)].

Where the wife has been living separately and in spite of decree for restitution of conjugal rights refuses cohabitation with husband without assigning reason, the court would be justified in cancelling the order for maintenance [Renu v Hira Lal, 2002 Cr LJ 2599 (2600) (MP) : 2002 (2) Crimes 355 : 2002 (3) MPLJ 320 ].

The husband moved an application for cancellation of maintenance allowance on the ground that there was a written compromise between the parties. Held, the genuineness of compromise could not be judged in criminal revision. The alleged compromise could have been filed before Civil Court only where the case fordivorce was pending. There was no evidence to show that the alleged agreement was adduced by husband before the Magistrate order rejecting application under section 127 of Code of Criminal Procedure, 1973 was proper [Jagat Singh v State of UP, 2010 Cr LJ (NOC) 314 (All)]. [s 127.5] Cochin Act.— Payment of compensation on divorce under the Cochin Marumakkathayam Thiyya Act must be a fair substitute

Page 5 of 11 [s 127] Alteration in allowance.— for maintenance payable periodically [Thilothama v Kunjappan, 1983 Cr LJ 273 : 1983 Ker LT 90 : 1983 (1) DMC 241 : 1983 Mad LJ (Cri) 289 (Ker)]. [s 127.6] Divorce by consent.— Divorce by mutual consent, taken by the spouses by executing a deed, as per a long-standing custom, is prevalent in certain communities. It was, inter alia, agreed that the wife would not claim any maintenance on divorce. She was pregnant at the time of divorce and it was agreed that after the feeding period is over, the child would be in the custody of the husband. It was held that contracting out of the right under section 125 is not prohibited. The spouses were living separately by mutual consent and the wife had voluntarily surrendered her right to claim any maintenance under section 125 (4) and section 127 (3)(c). But the child was entitled to maintenance, since his right was not and could not the relinquished by the mother [Shrawan Sakharam Ubhale v Sau Durga Shrawan Ubhale, 1989 Cr LJ 211 : 1988 (3) Crimes 357 : 1988 (3) Bom CR 343 : 1988 (2) Hindu LR 353 (Bom) (Nag Bench)]. [s 127.7] Divorced Muslim wife.— Divorced Muslim wife cannot invoke section 127 of Cr PC after the coming into force of the Muslim Women (Protection of Rights on Divorce) Act, 1986. But the right of the daughter to maintenance is not affected by the Act [Abdul Gafoor Kunju v Avva Ummal Pathumma Beevi, 1989 Cr LJ 1224 : 1989 (1) Ker LT 337 : 1989 (1) CrLC 563 (Ker)].

A divorced Muslim woman cannot claim maintenance under section 125 of the Code from her former husband after passing of the Muslim Woman (Protection of Rights on Divorce) Act, 1986. [Nazir Ahmad Ansari v Lateef Bi, 1996 Cr LJ 1548 : 1996 (2) Crimes 388 : 1996 (10 Andh LD 132 : 1996 (1) DMC 300 at p 1549 (AP)]. [s 127.8] Change of circumstances.— Section 127 empowers the court to enhance the maintenance granted under section 125 of Code of Criminal Procedure, 1973 on proof of change in the circumstances. Section 127 does not mandate that an application is required to be filed to enhance the maintenance amount [S. Brahmanandan v S Rama Devi, 2007 Cr LJ 811 (817) : 2007 (2) Andh LT (Cri) 26 (AP)]. “Change of circumstances” covers change in primary circumstances as well as changes in other circumstances. The change may be in the circumstances of the paying party or of the recurring party [Nihan, 15 GLJ 554, Rukmani 19 AWN 32 Shah ILR 19 A 50]. Death of a child, or birth of a child, or growing up of a child is each a change in circumstance [Ramayee, ILR 14 Mad 398; Upendra, ILR 12 Cal 535; Mg. Shwe, AIR 1939Rang, 558; Chander Prakash Bodh Raj v Shila Rani Chander Prakash, AIR 1968 Del 174 : 1968 Cr LJ 1153 ]. Divorce is a change of circumstance according to one view [Abdul Rahman, (1878) ILR 5 Cal 558; Ahmed Kasim, (1932) ILR 59 Cal 833; Din Md., ILR 5 All 226; Abdul Ali, ILR 7 Bom 180, Mahomed Rahimullah, Re, AIR 1947 Mad 461 : 60 mad LW 58 : (1947) 48 Cr LJ 382 : 1947 (1) Mad LJ 70]. Contra-see cases cited below under “Divorce” and section 127(3).

In the instant case, ex parte order was passed for enhancement of maintenance allowance. In view of the fact that with the lapse of time, the cost of living had increased manifold and the income of the husband was also enhanced, amount of maintenance was enhanced from 100/- to Rs. 500/- [Mool Chandra v State of UP, 2010 Cr LJ (NOC) 1264 (All)].

Rise in the cost of living is a change [State v Janakibai, AIR 1956 Bom 432 : 1956 Cr LJ 731 ; PK Panda v Aman Kumar Panda, 1996 Cr LJ 553 (Ori) : 1996 (1) Hindu LR 309 ; Bimbadhar Behera v Pratimamani Behera, 1999 Cr LJ 1085 (Ori); Chhotu Singh v Ramdini, 2002 Cr LJ 3499 (3500) (Raj) : 2002 (3) Raj CrC 1519 ; Dundappa Fakirappa Talwar v Laxmibai, 2004 Cr LJ (NOC) 142 (Kant) : 2004 AIR Kant HCR 1536 : 2004 (2) Marri LJ 670].

Order of Family Court showed that wife had to spend for educational expenses of her daughter. Thus, there was inflation in expenditure of opposite party, which have inflected. It was held that enhancement in maintenance amount was proper [Bibhuti Bhushan Pandey v State, 2006 Cr LJ (NOC) 319 (Jhar) : 2006 (2) AIR Jhar R 51 : 2006 (2) DMC 120 : 2006 (1) JLJR 444 ].

Page 6 of 11 [s 127] Alteration in allowance.— Change must be in the circumstances themselves and not in their proof of already existing circumstances [AS Govindan v Margaret Jayammal, AIR 1950 Mad 153 : (1950) 51 Cr LJ 455 : 1950 Mad WN (Cri) 45 (2)].

A father having admitted the paternity cannot seek the cancellation of order of maintenance passed under section 125 of Code of Criminal Procedure, 1973 by denying paternity [Jay Varghese v Leelamma, 2007 Cr LJ 3363 (364) : 2007 (2) Ker LJ 554 (Ker-DB)].

According to the Bombay High Court, where a total sum is fixed for maintenance of wife and child, then if either of them dies, the court can suitably modify the order [Re : Kalavantibai Tekchand Bhavani, AIR 1953 Bom 366 : 1953 Cr LJ 1461 : 55 Bom LR 383 Contrary view in Makhim Yi v Edward Khin Maung, AIR 1941 Rang 46 : (1941) 42 Cr LJ 312 does not, with respect, appear to be sound.

Where the order relates to maintenance of a child the remarriage of the divorced wife is not material [Budhan, ILR 27 All 11]. When the husband does not allow the wife to cultivate the land given to the wife for maintenance under a compromise order, it is a change in the circumstances and justifies cash maintenance [Runndev, A 1950 All 434 ]. Change of circumstances would include change of circumstances of the husband also [Meenakshi Ammal v J. Balakarishanan, 1980 Cr LJ 1200 : 1979 Mad LW (Cri) 142 : 1980 Mad LJ (Cri) 293 [Mad].

A wife can claim enhancement in amount of maintenance in the light of increments which the husband had been getting in his service, particularly because the wife had no other income and she had been granted very minimum maintenance and had been neglected by the husband who had failed to obtain a decree of judicial separation [Raj Kumar, 1981 Cr LJ, NOC 206 (Del)].

In normal circumstances, the power may be exercised by the court to the extent for which demand is made. If the demand is of Rs. 2000/- pm., the defence of the husband would also be limited thereto. Thereafter, even if the court has to consider the matter for considering the quantum of maintenance higher than what is not prayed, opportunity is required to be given to the husband for satisfying that such would not be a reasonable maintenance and if such an opportunity is not given, the order could be said to be in breach of the principles of natural justice [Ilyasbhai Umajibhai Patel v Faridaben Hyashbhai Patel, 2010 Cr LJ 1385 (1386-87) (Guj) : 2009 GLH (2) 225 : (2009) 3 GLR 1875 : 2009 (4) RCR (Criminal) 811].

A valid divorce under the Mahomedan law is a change in the circumstances [Mahomed Rahi Rahimullah, Re, AIR 1947 Mad 461 : 1947 (48) Cr LJ 382 : 60 Mad LW 58 : 1947 (1) Mad LJ 70 (cases reviewed); Shk Daud, AIR 1921 N 7; Ahmed Kasim, AIR 1933 Cal 27 : (1932) ILR 59 Cal 833] but this mere fact alone does not fall under the new Code which entitles the Magistrate to refuse to enforce maintenance order as it used to be in the old Code. If the question of divorce is now raised as a ground disentitling to maintenance, the court is of course bound to decide the woman’s status [Vide Md. Rahimulla, sup : Janni Bibi v Mohammed Abdul Rahaman, AIR 1955 AP 1 : 1955 Cr LJ 149 : 1954 Mad WN 947 : 1954 (20 Mad LJ 210; Muhammed Ismail v Sarammal, AIR 1960 Ker 262 : 1960 Cr LJ 1090 : 1960 Ker LT 45 : ILR (1959) Ker 1319 ]. But in view of the inclusive definition of wife in explanation (b) of section 125(1) for the purpose of this chapter, further facts, besides divorce after the order for maintenance has been passed, have to be proved in order to disentitle the wife to maintenance; and such facts will be as those mentioned in sub-section (3) of section 127 on which order for maintenance, as has been passed in favour of a divorced wife, can be cancelled and as such allowance can be stopped. For, a wife divorced after an order of maintenance is passed should not be in a worse or better position in this matter in any respect than a divorced wife, in whose favour an order for maintenance has been passed. [s 127.9] Change of financial circumstances.— Where the wife became an earning member with salary of more than Rs. 500 per month, application for cancelling order for maintenance for change of circumstances was entertained [PN Manikkuttan Nair v KR Gurija Amma, 2000 Cr LJ 3726 : 2000 (2) Ker LJ 274 : 2000 (4) Rec Cr R 359(Ker) (Mrs. D. Sreedevi J.)]. [s 127.10] Compromise.—

Page 7 of 11 [s 127] Alteration in allowance.— The Magistrate can in a fit case enhance the amount of maintenance even if the amount has been fixed by a compromise between the parties. [Algappan v Thilagam, 2000 Cr LJ 3239 : 2000 (2) Mad LW (Cri) 706 (Mad); Padmanabhan v Bama, 1988 Cr LJ 1386 ; Rajkumar v Shanta Bai, 2002 Cr LJ 2894 : 2002 (2) Civil Court C 251 : 2002 (3) Rec Cr R 21 : 2002 (2) Raj LW 1333 : 2002 (3) Raj LR 228 ; Pritam Singh v Nirmala Devi, 2014 Cr LJ 4032 (HP) : II (2015) DMC 367 HP]. [s 127.11] Divorce.— The expression “change in the circumstances of any person’”in section 127(1) contemplates changes other than changes brought about by the fact of divorce. Divorce is specifically dealt with in section 127(3). A Muslim wife obtained order of maintenance under section 125. Wife was divorced by her husband. It was held that application under section 126 by husband is not maintainable [Anowaruddin Ahmed v The State, 1989 Cr LJ, NOC 20 (Cal). Case under section 7 of Muslim Women (Protection of Rights on Divorce) Act, 1986]. [s 127.12] “Alteration in the allowance”.— It was held in Allahabad that “alteration” refers to power to alter the amount and not to a total discontinuance [Din Md., 5 A 226]; but disagreeing it has been held in Madras that reduction of maintenance to nothing would also be alteration [Meenakshi, AIR 1925 M 491 : 86 Ind. Cas.220 : (1925) ILR 48 Mad 503 : 1925 21 LW 142 : (1925) 48 Mad LJ 183 : 1925 MWN 67; Mahomed Rahi Mullah, Re, AIR 1947 Mad 461 : (1947) 48 Cr LJ 382 : 60 Mad LW 58 : 1947 : (1) Mad LJ 70]. Increase or decrease can be made as often as occasion may require or justify [Re : P. Thiagaraja Pillai, AIR 1955 NUC 75 (Mad) : 1955 Cr LJ 175 (2) : 1954 (2) Mad LJ 608; Bibhuti Bhushan Pandey v State of Jharkhand, 2006 Cr LJ (NOC) 319 (Jhar); where the salary of the husband was increased, maintenance allowed to the petitioner was also enhanced [Dundappa Fakirappa Talwar v Laxmibai, 2004 Cr LJ (NOC) 142 (Kant) : 2004 AIR Kant HCR 1536 : 2004 (2) Marri LJ 670]. Monthly allowance of Rs. 25 increased to Rs. 100 on account of rise in husband’s pay [Wudali Gangamma v Wudali Subboranyudu, AIR 1961 AP 510 : 1961 (2) Cr LJ 760 ]. Increase or decrease of allowance can be made effective from date of order and not retrospectively from date of application [JH Amroon v R Sassoon, AIR 1949 Cal 584 : 53 Cal WN 465 : (1949) 50 Cr LJ 1006 ; Musammat Lilawanti v Madan Gopal, AIR 1935 Lah 24 : (1936) 37 Cr LJ 68 : 159 IC 310; see however Hiralal, A 1926 B 419].

Increased allowance takes effect from the date of the order and not from the date of the application [JH Amroon v R Sassoon, AIR 1949 Cal 584 : (1949) 50 Cr LJ 1006 : 53 Cal WN 465; Chhotu Singh v Ramdini, 2002 Cr LJ 3499 (3500) (Raj) : 2002 (3) Raj CrC 1519 —Contra : TK Thayumanuvar v Asanambal Ammal, AIR 1958 Mys 190 : 1958 Cr LJ 1522 : 1958 Mad LJ (Cri) 754]. Increase but not decrease can be made effective from date of application [Parameswara Moothar v Balameenakshi, AIR 1969 Ker 108 : 1969 Cr LJ 484 : 1968 Ker LT 761 : 1968 Ker LJ 819 ]. An annual paddy maintenance passed on compromise being not an order under section 125, there can be no modification under section 127 [Annapurna Devi v Satrughna Mahadud, AIR 1960 Ori 94 : 1960 Cr LJ 840 : 26 Cut LT 155].

The section provides that where an order of maintenance is passed under section 125 of the Code, the amount can be increased or decreased on proof of change of circumstances of the person receiving or of the person paying the amount [Prakash Shankar Shinde v Rekha Prakash Shinde, 1996 Cr LJ 800 at p 801 : 1996 (2) Mah LJ 624 : 1996 (2) DMC 381 : 1996 (2) Mah LR 602 (Bom)]. [s 127.13] Notice.— The want of a provision does not abrogate the statutory rule of natural justice that a notice should be given to the party affected before alteration in allowance [Janni Bibi v Mohammed Abdul Rahaman, AIR 1955 AP 1 : 1955 Cr LJ 149 : 1954 (2) Mad LJ 210; Zinabhai Bhimbhai v Bai Mani, AIR 1937 Bom 454 : (1938) 39 Cr LJ 53 : 39 Bom LR 626 : ILR (1937) Bom 674 ]. [s 127.14] Effect of Civil Court decision—Sub-section (2).— The Criminal Court must take the decision of the Civil Court as it stands and consider its necessary effect on the maintenance order, i.e. whether it should be varied or cancelled. It cannot ignore the Civil Court’s decision [Titus, AIR 1947 M 425; State of Mysore v Nagappa, AIR 1968 Mys 12 : 1968 Cr LJ 70 : 1967 (2) Mys LJ 29 : 1967 Mad LJ (Cri) 766; Vanaja Shamma v P. Gopala Krishna, AIR 1970 Mys 305 : 1970 Cr LJ 1584 : 1970 (2) Mys LJ 15 : 1970 Mad (Cri) 552; Bhagwant Singh v Surjit Kaur, 1981 Cr LJ 151 (P&H) : 83 Punj LR 219 : 1981 Chand Cr C 98]. If any party has obtained the reversal of the order of maintenance by fraud, the Magistrate can restore the order [Bhagubai, AIR 1937 Cal 334 : 173 Ind. Cas. 915].

Page 8 of 11 [s 127] Alteration in allowance.—

When the Civil Court granted decree of divorce on the ground of adultery on part of wife, then wife was not entitled for maintenance. [Shyamdeo Pd. v State of Bihar, 2001 Cr LJ 2818 : 2000 (3) Pat LJR 740 : 2000 (2) East Cr C 1221 (Pat)].

Normally, a decree for restitution of conjugal rights may be sufficient cause for refusing maintenance. But if after decree, other circumstances have arisen which provide reasonable cause for not returning to her husband, the wife is entitled to maintenance [Khan Bahadur, AIR 1945 P 53; Tarak Nath Dhar v Sneharani Dhar, AIR 1949 Cal 87 : 52 Cal WN 166 : (1948) 49 Cr LJ 757 ]. It was held in some earlier cases that a decree for restitution of conjugal rights supersedes an order for maintenance [Bulakidas, 23 B 484; Bai Parvati, 44 B 972; see Nur, 27 A 483]. But the other and more rational view is that a decree for restitution does not ipso facto cancel a maintenance order nor is the Magistrate bound to do so. He should consider all other circumstances that prevail or have arisen [Mg Dun, 26 Cr LJ 134; Sher Khan v Bakhat Bhari, (1932) 33 Cr LJ 748 : 33 Punj LR 554 : 139 IC 123 (1) Lah; Rajpati, 46 A 877; Fakruddin Shamsuddin v Bai Jenab, AIR 1944 Bom 11 : (1944) 45 Cr LJ 271 : 45 Bom LR 897; Bhagwant Singh v Surjit Kaur, AIR 1944 Bom 11 : (1944) 45 Cr LJ 271 : 45 Bom LR 897; Kunti Bala v Nabin Chandra Das, AIR 1955 Cal 108 : 1955 Cr LJ 54 : 58 Cal WN 702 : 94 Cal LJ 119. Where a decree for restitution of conjugal rights is obtained by husband subsequent to order for maintenance, application for cancellation of order is the proper remedy [Shiela Rani v Durga Persad, AIR 1965 Punj 79 : 1965 (1) Cr LJ 203 : ILR (1964) 2 Punj 477 ; Jhanwarlal v State of Rajasthan, AIR 1969 Raj 29 : 1969 Cr LJ 306 : 1969 Raj LW 4 ; Srinivasa Gowda v HJ Leelavathi, 2008 Cr LJ (NOC) 547 (Kant)]. He has discretion as to whether the order should be cancelled [Ali Md., AIR 1926 SC 270 ]. Where it is clear that the object of decree was to get rid of the maintenance order and not to get back the wife to live with him, the discretion should be used against cancellation [Pavakkay, 27 Cr LJ 30 : AIR 1925 M 1218; see Mapwa Shein v Maung Po Kwe, AIR 1939 Rang 314 : (1939) 40 Cr LJ 827 : 183 IC 693]. Application for cancellation of order of maintenance on the ground of decree for restitution of conjugal rights shall be filed before the Magistrate who granted maintenance. Such an application cannot be filed in revision proceedings [Damathoti Manojainma v Damathoti Yedukondalu, 2002 Cr LJ 2252 (2253) (AP) : 2002 (1) Andh LT (Cri) 463 : 2002 (2) Hindu LR 693 ]. In the instant case, the husband’s claim to divorce against the wife was dismissed and the wife’s claim for permanent alimony was also disallowed. Earlier maintenance was granted to the wife and child. The husband, on the basis of the Civil Court, moved a petition under section 127(2) of the Code for cancellation of the said order of maintenance, which was rejected by the Magistrate. On revision, the Sessions Judge reversed the order of the Magistrate on the ground that since the Civil Court had rejected the claim for permanent alimony to the wife and child, they were not entitled to any maintenance and, accordingly, the order for maintenance was cancelled. This order was affirmed by the High Court [Saroja v Janardhanan, 2001 Cr LJ 3111 : 2001 (2) Ker LT 624 : ILR (2001) 2 Ker 602 : 2001 (2) DMC 528 : 2001 (2) Hindu LR 678 (Ker)]. The mere fact that the Civil Court is satisfied that the wife should go and live with the husband does not satisfy the Magistrate surrendering his judgment. Before canceling the order of maintenance, he is bound to satisfy himself that the applicant is bona fide prepared to offer his wife a house which she ought to accept [Fakruddin Shamsuddin v Bai Jenab, AIR 1944 Bom 11 : (1944) 45 Cr LJ 27 : 45 Bom LR 897; Kunti Bala Dassi v Nabin Chandra Das, AIR 1955 Cal 108 : 1955 Cr LJ 354 : 58 Cal WN 702 : 94 Cal LJ 119 not following Tarak Nath Dhar v Sneharani Dhar, AIR 1949 Cal 87 : 52 Cal WN 166 : (1948) 49 Cr LJ 757 ]. If however the wife is not prepared to go back to her husband for any justifiable cause, there should be no maintenance [Md. Siddiq, AIR 1950 All 485 ]. See also notes to section 125 “Jurisdiction of Civil and Criminal Courts”.

A Civil Court decree that the applicant is not the father of the child entitles him to get the maintenance order cancelled [Venkayya, 46 M 721; U. Arzeina, AIR 1940 Rangoon 298 ]. Decree in subsequent civil suit in favour of husband dissolving marriage on ground of desertion is not a decision within sub-section (2), and the husband has to prove the fact of desertion independently [Ranjit Kumar Pandey v Swaha Rani Pandey, 1979 Cr LJ 1301 : 1979 (2) Cal LJ 202 : (1979) 2 Cal HN 175 (Cal)]. On a petition by wife for maintenance on ground of desertion by husband while her application under section 9, Hindu Marriage Act, 1955 was previously dismissed on ground that she had deserted her husband, Magistrate cannot come to a contrary finding and grant maintenance [Teja Singh v Chhoto, 1981 Cr LJ 1467 : (1981) 83 Punj LR 527 : 1981 Chand Cr C 249 (P&H)].

Mutual agreement between husband and wife as regards future maintenance is not a compromise under

Page 9 of 11 [s 127] Alteration in allowance.— section 125 [Kamatham Venkatamma v Kamatham Buruju Ramanna, 1989 Cr LJ 2416 : 1989 (3) Andh LT 163 : 1989 (2) APLJ 186 : 1990 (1) HLR 445 (AP)).

Sub-section (3) is a special provision dealing with the matter for cancellation of order for maintenance in the case of divorced woman [Mariyumma, AIR 1978 K 231, FB]. [s 127.15] Distinction between clauses (b) and (c) of sub-section (3).— There is a clear distinction between clause (b) and (c). Clause (b) reflects separate and legal incidents of the first limb of the Explanation to section 125(1), i.e., a woman who has been divorced by her husband and clause (c) those of the other limb, i.e., a woman who has obtained a divorce from her husband. While clause (b) provides for cancellation of maintenance on payment of dower if a Muslim woman has been divorced by her husband, clause (c) provides that where a Muslim woman obtains a divorce from her husband by Dissolution of the Muslim Marriage Act, 1939 or otherwise according to personal law of some of Muslims, maintenance cannot be cancelled unless she voluntarily surrenders her right of maintenance [Zohora Khatoon v Mohammed Ibrahim, AIR 1981 SC 1243 : 1981 Cr LJ 754 : (1981) 2 SCC 509 (SC)]. [s 127.16] Sub-section (3)(b) : “Whole of the sum”.— Refers not only to maintenance but also to Mehar or dower as is payable under the personal law of the Mahomedans on divorce which must be paid also in full before cancellation is sought [Aluri Sambaiah v Shaik Zaherabi, 1978 Cr LJ 211 : 1977 (2) Andh WR 418 : 1977 Mad LJ (Cri) 505 : 1978 Hindu LR 609 (AP) (Rukhsana Parvin v Shaikh Mohd. Hussein, 1977 Cr LJ 1041 : 1977 Mah LJ 231 : 79 Bom LR 123 (Bom) relied on)]. A reasonable compensation received by a divorced wife under section 8 of the Travancore Ezhava Act on dissolution of marriage at the instance of the husband is an amount contemplated by sub-section (3)(b) [Kamalakshi Vasantha Kumari v Sonkaran Sadasivan, AIR 1979 Ker 116 : 1979 Cr LJ (NOC) 113 : 1979 Ker LT 5 : 1979 Mad LJ (Cri) 325 FB]. Payment of mehar money as a customary discharge is within the cognizance of this provision [Bai Tahira v Ali Hussain Fissalli Chothia, AIR 1979 SC 362 : 1979 Cr LJ 151 : (1979) 2 SCC 316 (SC)].

Sub-section (3)(b) is not restricted only to cancellation of maintenance by an appropriate proceeding under this sub-section, but also operates as a proviso to section 125 and an application for maintenance at the instance of a divorced woman in whose case the provisions of this sub-section have been complied with may also be dismissed [Kamalakshi, sup]. When a divorced Muslim woman has been paid the Mehar and maintenance during the period of iddat, she is not entitled to future maintenance under section 125 [Rukhsana Parvin v Shaikh Mohd. Hussein, 1977 Cr LJ 1041 : 1977 Mah LJ 231 : 79 Bom LR 123 (Bom); Md. Hanif v Saleema, 1979 Cr LJ (NOC) 160 1978 Mad LW (Cri) 190 (Mad); Hamida Khan, 1978 MPLJ 538 ; Zubedabi v Abdul Khadaer, 1978 Cr LJ 1555 : 1978 (2) Kant LJ 143 : 1978 Mad LJ (Cri) 280 (Kant)]. The only just construction of the section is that Parliament intended that the divorcees should not derive a double benefit. The purpose of the payment “under any customary or personal law” must be to obviate destitution of the divorcee and to provide her with wherewithal to maintain herself. The payment of illusory amount by way of customary or personal law requirement will be considered in reduction of maintenance rate but cannot annihilate that rate unless there is a reasonable substitute. The whole scheme of section 127(3)(b) is manifestly to recognize the substitute maintenance arrangement by lump-sum payment organised by the custom of the community or the personal law of the parties. There must be a rational relation between the sum so paid and its potential as provision for maintenance. Therefore, no husband can claim under section 127(3) (b) absolution from his obligation under section 125 towards a divorced wife except on proof of payment of a sum stipulated by customary or personal law whose quantum is more or less sufficient to do duty for maintenance allowance [Bai Tahira v Ali Hussain Fissalli Fissalli Chotia, AIR 1979 SC 362 : 1979 Cr LJ 151 : (1979) 2 SCC 316 (SC)]. In view of the above construction of the section and the proposition of law laid down by the Supreme Court, the court will have to see further whether the payment of the sum or amount is a fairly capitalised substitute or in other words whether adequate provisions have been made for the maintenance of the divorcee under section 125, otherwise it will be considered only in reduction of maintenance rate. The aforesaid interpretation given by Supreme Court on sub-section (3)(b) in Bai Tahira, sup, has been reiterated and the law has been summed up in a full proof fashion since the binding ratio of the decision in Bai Tahira was disobeyed by three courts below by untenable alibi. It has been stated in particular that the payment of an amount, customary [e.g., Mehar under Mohamedan law] or other, must be a reasonable and not an illusory amount providing more or less the present worth of the monthly maintenance allowances and will release the quondam husband from the continuing liability, only if the sum paid is realistically sufficient to maintain ex-wife and salvage her from destitution [Fuzlunbi v K. Khader Vali, AIR 1980 SC 1730 : 1980 Cr LJ 1249 : (1980) 4 SCC 125 (SC) (paras 18, 19)

Page 10 of 11 [s 127] Alteration in allowance.— overruling Kamalakshi, Rukhsana, sup] and other cases in so far as the court has not insisted on an adequate sum which will yield a recurring income to maintain the divorcee in future.

In Fuzlunbi v K Khader Vali, AIR 1980 SC 1730 : 1980 Cr LJ 1249 : (1980) 4 SCC 125 (SC), approving Hajuben Suleman, 18 Guj LR 133, the Supreme Court has also held that in order to exercise the power conferred by sub-section (3)(b), it has to be found as a fact that the wife has done a voluntary act of receiving the whole sum contemplated to be payable by clause (b). If the wife is unwilling, the provisions are not applicable.

It is to be noticed that in Fuzlunbi v K Khader Vali, AIR 1980 SC 1730 : 1980 Cr LJ 1249 : (1980) 4 SCC 125 (SC), the Supreme Court has considered also another angle to the subject of Mehar and its impact on liability for maintenance and held Mehar as understood in Mahomedan law cannot, under any circumstances be considered as consideration for divorce or a payment made in lieu of loss of conjugal relationship, as the language of sub-section (3)(b) appears to suggest that payment of the sum and the divorce should be essentially parts of the same transaction so as to make one the consideration for the other. The decision in Bai Tahira that payment of Mehar money as a customary discharge within the cognizance of this provision has not been noticed and discussed in this case. In the later, Supreme Court case Zohara Khatoon v Mohammed Ibrahim, AIR 1981 SC 1243 : 1981 Cr LJ 754 : (1981) 2 SCC 509 (SC), while interpreting sub-section (3)(b) it has been stated that under Mahomedan law, the husband could still get the maintenance cancelled after divorcing his wife according to personal law, if he paid the entire dower specified at the time of marriage. So, whether dower or Mehar falls within the meaning of any sum or amount payable on divorce within the language of sub-section (3) (b) requires to be resolved. [s 127.17] Enhancement of maintenance : Forum.— A petition for enhancement of maintenance shall be filed before the Magistrate who passed the first order of maintenance [Santa Singh v State of Punjab, AIR 1976 SC 2386 : 1976 SCC (Cri) 546 : 1976 Cr LJ 1875 ; Moti Lal v State of MP, 2004 Cr LJ 907 (909) (SC) : AIR 2004 SC 2909 : 2004 (1) Crimes 341 : (2004) 2 SCC 469 ]. [s 127.18] Enhancement after compromise.— In the absence of any restriction, the opposite party can claim higher allowance of maintenance and the petition of the opposite party for enhancement of allowance cannot be resisted solely on the ground that there exists an order made under section 125 of the Code on the basis of compromise between the parties [Prafulla Kumar Panda v Amari Kumari Panda, 1996 Cr LJ 553 , 554 : (1996) 81 Cut LT 49 : 1996 (1) DMC 402 : 1996 (1) Hindu LR 309 (Ori)]. [s 127.19] Sub-section (3)(c).— On a divorce by mutual consent by executing a document, if the document is brought about at the initiative of the husband, it can be said that the wife is “divorced by the husband”, if, on the other hand, the document is obtained on the initiative of the wife, it can be said that she obtained divorce from her husband [Padmanabhan v Bhargavi Sarojini, 1981 Cr LJ 826 : ILR (1981) 1 Ker 232 (Ker)]. [s 127.20] Revision.— lies against an order, under sub-section (2) [Ali Md., AIR 1926 SC 270 ; see notes to section 125 ante,].

7

Substituted by the Code of Criminal Procedure (Amendment) Act, 2001 (50 of 2001), section 3 (w.e.f. 24 September 2001). Before substitution, sub-section (1) stood as under: “(1) On proof of a change in the circumstances of any person, receiving under section 125 a monthly allowance, or ordered under the same section to pay a monthly allowance to his wife, child, father or mother, as the case may be, the Magistrate may make such alteration in the allowance as he thinks fit: Provided that if he increases the allowance, the monthly rate of five hundred rupees in the whole shall not be exceeded.” 8

Substituted for the word “maintenance” by the Code of Criminal Procedure (Amendment) Act, 2001 (50 of 2001), section 3 (w.e.f. 24September 2001).

Page 11 of 11 [s 127] Alteration in allowance.—

9

Substituted for the words “monthly allowance has been ordered” by the Code of Criminal Procedure (Amendment) Act, 2001 (50 of 2001), section 3 (w.e.f. 24 September 2001).

10

Substituted for the words “as monthly allowance in pursuance of” by the Code of Criminal Procedure (Amendment) Act, 2001 (50 of 2001), section 3 (w.e.f. 24 September 2001).

End of Document

[s 128] Enforcement of order of maintenance.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER IX ORDER FOR MAINTENANCE OF WIVES, CHILDREN AND PARENTS

The Code of Criminal Procedure, 1973 CHAPTER IX ORDER FOR MAINTENANCE OF WIVES, CHILDREN AND PARENTS [s 128] Enforcement of order of maintenance.— A copy of the order of 11[maintenance or interim maintenance and expenses of proceedings, as the case may be,] shall be given without payment to the person in whose favour it is made, or to his guardian, if any, or to the person to 12[whom the allowance for the maintenance or the allowance for the interim maintenance and expenses of proceeding, as the case may be,] is to be paid; and such order may be enforced by any Magistrate in any place where the person against whom it is made may be, on such Magistrate being satisfied as to the identity of the parties and the non-payment of the 13[allowance, or as the case may be, expenses, due]. [s 128.1] Changes.— Section 128 corresponds to the old section 490 verbatim.

Code of Criminal Procedure (Amendment) Act, 2001.— Section 128 has been amended vide this Amending Act. Following changes have been made in section 128:

(i)

Substituted “maintenance or interim maintenance and expenses of proceeding, as the case may be,”for the word “maintenance”;

(ii) Substituted “whom the allowance for the maintenance or the allowance for the interim maintenance and expenses of proceeding, as the case may be,” for the words “whom the allowance”; (iii) Substituted “allowance, or as the case may be, expenses, due” for the words “allowance due”. [s 128.2] Scope and application of section 128.— Section 128 is merely supplementary to section 125 (3) which provides for enforcement of order [U Hpay Latt v Mapo Byu, AIR 1935 Rang 407 : (1936) 37 Cr LJ 91 (2)]. The conditions for the enforcement of an order are the identity of the parties and the non-payment of the maintenance. So long as cancellation is not obtained, the order is enforceable [Pearey, AIR 1935 A 77] and the fact that there has been any agreement between the parties after the order cannot be considered by the Magistrate [Prabhu, 25 A 165; Fazal Din v Emperor, AIR 1932 Lah 115 : (1932) 33 Cr LJ 121 : 32 Punj LR 927; see however Rangamma, 10 M 13] where the plea was raised and Sultan Khan Gulshan Khan v Khanam Jan, AIR 1937 Pesh 45 : (1937) 38 Cr LJ 614 ]. Application for recovery of maintenance may be made either to the Magistrate who passed the original order or his successor or to a Magistrate having jurisdiction over the place where the person resides [Ma Thaw, 15 Cr LJ 701; U Hpay Latt v Ma Po Byu, AIR 1935 Rang 407 : (1936) 37 Cr LJ 91 (2); Maung Tun Zan v Ma Myaing,

Page 2 of 3 [s 128] Enforcement of order of maintenance.— AIR 1935 Rang 77 : (1942) 43 Cr LJ 30 ]. A maintenance order of a Lahore Court obtained before partition can be enforced in any court in India within whose jurisdiction the husband resides [Kishorilal v Shanti Devi, AIR 1953 SC 441 : 1953 Cr LJ 1923 ]. The Magistrate who made the original order can issue a warrant for collection of arrears of maintenance [Gnanambalammal, 52 M 77 : 29 Cr LJ 932]. This section contains no provision for costs as in section 126 (3) [Ma E Shi v U. San Kai, AIR 1939 Rang 67 : (1939) 40 Cr LJ 241 ]. [s 128.3] Wife in employment.— In a proceeding for recovery of maintenance, the husband cannot take the plea that the wife was in employment prior to the order for maintenance, such plea not having been taken at the time of hearing the application [Gulshor Ali v Mumtaj Fatma, 1984 Cr LJ, NOC 97 : 1984 (1) Crimes 688 : 1984 (1) DMC 157 : 1984 All WC 158 (All)]. [s 128.4] Imprisonment.— The husband, who was found to be guilty of cruelty, had failed to pay the maintenance allowance to the wife and the child. Prayer of the wife for recovery of arrears was rejected by the Magistrate on the ground that the claim for arrears stood satisfied upon the husband having been sent to jail. It was held that order of the Magistrate, that the amount of monthly allowance payable under section 125 was wiped out and was not recoverable any more by reason of the fact that husband was sent to jail, must be set aside. The husband was not absolved from his liability to pay the monthly allowance by reason of his undergoing a sentence of jail. The Supreme Court directed the husband to pay the monthly allowance on 15th of every month. On failure to pay any monthly allowance for any month on the part of the husband, the Magistrate shall issue a warrant for his arrestcause him to be arrested and put in jail for his failure to comply with the Supreme Court’s order and he shall not be released till he makes the payment. Kuldip Kaur v Surinder Singh, 1989 Cr LJ 794 : AIR 1989 SC 232 : (1989) 1 SCC 405 : 1989 (1) Crimes 1 : (1989) 1 SCJ 478 (SC)].

Imprisonment for default in payment of maintenance can be only for a month [Dilip Kumar v Family Court of Gorakpur, 2000 Cr LJ 3893 : 2000 All LJ 1812 : (2000) 40 All Cr C 315 (All) (SK Agarwal J.); Pitchika Lakshmi v Pichika Chenna Mallikaharjuana Rao, 2013 Cr LJ 4284 (AP) : 2013 (2) Andh LT (Cr) 213 : 2013 (1) Andh LD (Cr) 405 : 2013 Cr LJ 4284].

Where the husband has no property which can be attached and sold, order issuing warrant of arrest for recovery is not illegal [Sohan Lal v Raj Kumari, 2000 Cr LJ 2482 : 2000 (2) Rec Cr R 259 : 2000 (1) Chand Cr C 457 (P&H)]. [s 128.5] Limitation.— The Magistrate, by his order dated 22 November 1984 had granted maintenance to the non-petitioner for herself and for her daughter with retrospective effect, i.e. with effect from 21 March 1984, when the nonpetitioner had made the application for maintenance under section 125(1) of the Code. The arrears of maintenance from 21 March 1984 to 22 November 1984 became due on 22 November 1984 when the Judicial Magistrate passed the order allowing maintenance. The application under section 125(3) of the Code was made by the non-petitioner before the Judicial Magistrate on 12 December 1985. This application was clearly beyond one year from the date on which the arrears upto 22 November 1984 had become due. Clearly, therefore, no warrant for the levy of amount of maintenance which was payable with respect to the period from 21 March 1984 to 22 November 1984 could be issued by the Magistrate. He could only issue warrant for the levy of the maintenance amount which had become due with effect from 21 December 1984 because only in that respect the application of the non-petitioner presented on 12 December 1985 was within limitation [Govind Sahai v Prem Devi, 1988 Cr LJ 638 : 1987 (2) CrLC 667 : (1988) 15 Reports 263 (Raj)].

Claim of arrear maintenance is not barred by limitation because the liability to pay maintenance is a continuing liability and section125 of the Code of Criminal Procedure, 1973 is a measure of social legislation and it has to be construed liberally for the welfare and benefit of the wife [Re : Uttam Das, 2014 (3) RCR (Criminal) 862 : 2013 Cr LJ 3759 (Cal)]. [s 128.6] Maintenance—Quantum of.— Now the ceiling of five hundred rupees has been removed vide the Code of Criminal Procedure (Amendment) Act, 2001. [s 128.7] Enforcement of maintenance order.—

Page 3 of 3 [s 128] Enforcement of order of maintenance.— “Any Magistrate” need not be a Magistrate of the categories (i.e., Judicial Magistrate of the first class or Metropolitan Magistrate in metropolitan area) mentioned in section 125(I) Mg Tun, AIR 1941 R 217]. Hence a second class Judicial Magistrate cannot pass an order of maintenance. But a second class Judicial Magistrate cannot pass an order of imprisonment for breach of an order under section 125. The power to enforce an order of maintenance does not necessarily include the power to grant imprisonment [Re : Kuppini Naiken, AIR 1935 Mad 572 : (1935) 36 Cr LJ 830 : 68 Mad LJ 493 : 41 Mad LW 697].

Once a maintenance order is passed by a competent court, it can be enforced under section 125(3) and remains in force until there has been cancellation under section 125(5) or modification under section 127 or cessation of conjugal relationship plus some other facts as discussed in notes to section 127 under the heading “Change of circumstances”. [s 128.8] Sections 125, 127 and 128.— Final order passed under section 125 prior to date when Muslim Women (Protection of Right on Divorce) Act, 1956 came into force can be executed under section 128 [Idris Ali, 1990 East Cr C 117 (Gau)]. [See also comments on section 125(3)].

11 Substituted by the Code of Criminal Procedure (Amendment) Act, 2001 (50 of 2001), section 4, for the word “maintenance” (w.e.f. 24 September 2001).

12 Substituted by the Code of Criminal Procedure (Amendment) Act, 2001 (50 of 2001), section 4, for the words “whom the allowance” (w.e.f. 24 September- 2001).

13 Substituted by the Code of Criminal Procedure (Amendment) Act, 2001 (50 of 2001), section 4, for the words “allowance due” (w.e.f. 24 September 2001).

End of Document

Date and Time: Thursday 9 March 2023 4:30:00 PM IST Job Number: 192141468

Documents (88) 1. [s 129] Dispersal of assembly by use of civil force.— Client/Matter: -None2. [s 130] Use of armed forces to disperse assembly.— Client/Matter: -None3. [s 131] Power of certain armed force officers to disperse assembly.— Client/Matter: -None4. [s 132] Protection against prosecution for acts done under preceding sections.— Client/Matter: -None5. [s 133] Conditional order for removal of nuisance.— Client/Matter: -None6. [s 134] Service or notification of order.— Client/Matter: -None7. [s 135] Person to whom order is addressed to obey or show cause.— Client/Matter: -None8. [s 136] Consequences of his failing to do so.— Client/Matter: -None9. [s 137] Procedure where existence of public right is denied.— Client/Matter: -None10. [s 138] Procedure where he appears to show cause.— Client/Matter: -None11. [s 139] Power of Magistrate to direct local investigation and examination of an expert.— Client/Matter: -None12. [s 140] Power of Magistrate to furnish written instructions, etc.— Client/Matter: -None13. [s 141] Procedure on order being made absolute and consequences of disobedience.— Client/Matter: -None14. [s 142] Injunction pending inquiry.— Client/Matter: -None15. [s 143] Magistrate may prohibit repetition or continuance of public nuisance.— Client/Matter: -None16. [s 144] Power to issue order in urgent cases of nuisance or apprehended danger.— Client/Matter: -None17. [s 144-A Power to prohibit carrying arms in procession or mass drill or mass training with arms.— Client/Matter: -None18. [s 145] Procedure where dispute concerning land or water is likely to cause breach of peace.— Client/Matter: -None19. [s 146] Power to attach subject of dispute and to appoint receiver.— | About LexisNexis | Privacy Policy | Terms & Conditions | Copyright © 2023 LexisNexis

Client/Matter: -None20. [s 147] Dispute concerning right of use of land or water.— Client/Matter: -None21. [s 148] Local inquiry.— Client/Matter: -None22. [s 149] Police to prevent cognizable offences.— Client/Matter: -None23. [s 150] Information of design to commit cognizable offence.— Client/Matter: -None24. [s 151] Arrest to prevent the commission of cognizable offences.— Client/Matter: -None25. [s 152] Prevention of injury to public property.— Client/Matter: -None26. [s 153] Inspection of weights and measures.— Client/Matter: -None27. [s 154] Information in cognizable cases.— Client/Matter: -None28. [s 155] Information as to non-cognizable cases and investigation of such cases.— Client/Matter: -None29. [s 156] Police officer’s power to investigate cognizable case.— Client/Matter: -None30. [s 157] Procedure for investigation.— Client/Matter: -None31. [s 158] Report how submitted.— Client/Matter: -None32. [s 159] Power to hold investigation or preliminary inquiry.— Client/Matter: -None33. [s 160] Police Officer’s power to require attendance of witnesses.— Client/Matter: -None34. [s 161] Examination of witnesses by police.— Client/Matter: -None35. [s 162] Statements to police not to be signed: Use of statements in evidence.— Client/Matter: -None36. [s 163] No Inducement to be offered.— Client/Matter: -None37. [s 164] Recording of confessions and statements.— Client/Matter: -None38. [s 164-A Medical examination of the victim of rape.— Client/Matter: -None39. [s 165] Search by police officer.— Client/Matter: -None40. [s 166] When officer-in-charge of police station may require another to issue search-warrant.— Client/Matter: -None41. [s 166-A Letter of request to competent authority for investigation in a country or place outside India.—

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Client/Matter: -None42. [s 166-B Letter of request from a country or place outside India to a Court or an authority for investigation in India.— Client/Matter: -None43. [s 167] Procedure when investigation cannot be completed in twenty-four hours.— Client/Matter: -None44. [s 168] Report of investigation by subordinate police officer.— Client/Matter: -None45. [s 169] Release of accused when evidence deficient.— Client/Matter: -None46. [s 170] Cases to be sent to Magistrate when evidence is sufficient.— Client/Matter: -None47. [s 171] Complainant and witnesses not to be required to accompany police officer and not to be subjected to restraint.— Client/Matter: -None48. [s 172] Diary of proceedings in investigation.— Client/Matter: -None49. [s 173] Report of police officer on completion of investigation.— Client/Matter: -None50. [s 174] Police to enquire and report on suicide, etc.— Client/Matter: -None51. [s 175] Power to summon persons.— Client/Matter: -None52. [s 176] Inquiry by Magistrate into cause of death.— Client/Matter: -None53. [s 177] Ordinary place of inquiry and trial.— Client/Matter: -None54. [s 178] Place of inquiry or trial.— Client/Matter: -None55. [s 179] Offence triable where act is done or consequence ensues.— Client/Matter: -None56. [s 180] Place of trial where act is offence by reason of relation to other offence.— Client/Matter: -None57. [s 181] Place of trial in case of certain offences.— Client/Matter: -None58. [s 182] Offences committed by letters, etc.— Client/Matter: -None59. [s 183] Offence committed on journey or voyage.— Client/Matter: -None60. [s 184] Place of trial for offences triable together.— Client/Matter: -None61. [s 185] Power to order cases to be tried in different sessions divisions.— Client/Matter: -None62. [s 186] High Court to decide, in case of doubt, district where inquiry or trial shall take place.—

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Client/Matter: -None63. [s 187] Power to issue summons or warrant for offence committed beyond local jurisdiction.— Client/Matter: -None64. [s 188] Offences committed outside India.— Client/Matter: -None65. [s 189] Receipt of evidence relating to offences committed outside India.— Client/Matter: -None66. [s 190] Cognizance of offences by Magistrates.— Client/Matter: -None67. [s 191] Transfer on application of the accused.— Client/Matter: -None68. [s 192] Making over of cases to Magistrates.— Client/Matter: -None69. [s 193] Cognizance of offences by Courts of Session.— Client/Matter: -None70. [s 194] Additional and Assistant Sessions Judges to try cases made over to them.— Client/Matter: -None71. [s 195] Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence.— Client/Matter: -None72. [s 196] Prosecution for offences against the State and for criminal conspiracy to commit such offence.— Client/Matter: -None73. [s 197] Prosecution of Judges and public servants.— Client/Matter: -None74. [s 198] Prosecution for offences against marriage.— Client/Matter: -None75. [s 198-A Prosecution of offences under Section 498A of the Indian Penal Code.— Client/Matter: -None76. [s 198-B Cognizance of offence.— Client/Matter: -None77. [s 199] Prosecution for defamation.— Client/Matter: -None78. [s 200] Examination of complainant.— Client/Matter: -None79. [s 201] Procedure by Magistrate not competent to take cognizance of the case.— Client/Matter: -None80. [s 202] Postponement of issue of process.— Client/Matter: -None81. [s 203] Dismissal of complaint.— Client/Matter: -None82. [s 204] Issue of process.— Client/Matter: -None83. [s 205] Magistrate may dispense with personal attendance of accused.— Client/Matter: -None-

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84. [s 206] Special summons in cases of petty offence.— Client/Matter: -None85. [s 207] Supply to the accused of copy of police report and other documents.— Client/Matter: -None86. [s 208] Supply of copies of statements and documents to the accused in other cases triable by Court of Session.— Client/Matter: -None87. [s 209] Commitment of case to Court of Session when offence is triable exclusively by it.— Client/Matter: -None88. [s 210] Procedure to be followed when there is a complaint case and police investigation in respect of the same offence.— Client/Matter: -None-

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[s 129] Dispersal of assembly by use of civil force.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER X MAINTENANCE OF PUBLIC ORDER AND TRANQUILLITY > A.—Unlawful Assemblies

The Code of Criminal Procedure, 1973 CHAPTER X MAINTENANCE OF PUBLIC ORDER AND TRANQUILLITY Provisions of four chapters of the old Code, namely chapters 9, 10, 11 and 12 have been incorporated in this one chapter 10 divided into four parts—Pt A (Unlawful Assemblies—sections 129 to 132), Pt B (Public Nuisance— sections 133 to 143), Pt C (Urgent cases of Nuisance and Apprehended Danger—section 144), Pt D (Disputes as to Immovable Property—sections 145 to 148).

A.—Unlawful Assemblies [s 129] Dispersal of assembly by use of civil force.— (1) Any Executive Magistrate or officer in-charge of a police station or, in the absence of such officer-incharge, any police officer, not below the rank of a sub-inspector, may command any unlawful assembly, or any assembly of five or more persons likely to cause a disturbance of the public peace, to disperse; and it shall thereupon be the duty of the members of such assembly to disperse accordingly. (2) If, upon being so commanded, any such assembly does not disperse, or if, without being so commanded, it conducts itself in such a manner as to show a determination not to disperse, any Executive Magistrate or police officer referred to in sub-section (1), may proceed to disperse such assembly by force, and may require the assistance of any male person, not being an officer or member of the armed forces and acting as such, for the purpose of dispersing such assembly, and, if necessary, arresting and confining the persons who form part of it, in order to disperse such assembly or that they may be punished according to law. [s 129.1] Changes.— Sub-section (1) corresponds to the old section 127 and sub-section (2) corresponds to the old section 128 with the following changes:

(1) In sub-section (1) certain words have been newly added. (2) In sub-section (2) the words “Executive Magistrate or Police Officer referred to in sub-section (1)” and “member of the armed forces” have been substituted for “Magistrate or officer-in-charge of a police station, whether within or without the presidency-towns” and soldier, sailor or airman in the armed forces, respectively.

Material changes introduced are:

Page 2 of 3 [s 129] Dispersal of assembly by use of civil force.— (1) Power under the section has also been conferred on any police officer not below the rank of a subinspector in the absence of officer-in-charge of a police station, as sometimes it may happen that an officer-in-charge of a police station is not readily available at the place where there is an unlawful assembly and the delay in getting in touch with such offer might result in the situation becoming unmanageable. (2) The substitution of the words “or member of the armed forces” for former words (see above) has been made for inclusion of all members of armed forces of the Union, besides soldier, sailor or airman, such as Central Reserve Police and Border Security Forces. [s 129.2] Scope and application of section 129.— Citizens have the right to assemble peacefully and without arms [Article 19(1)(b) of Constitution]. The section gives power to disperse an unlawful assembly (section 141 of Indian Penal Code, 1860). It can be exercised by any executive Magistrate or officer in charge of a police station, or in his absence by any police officer not below the rank of a sub-inspector, or by a police officer superior in rank to officer in charge of a police station [section 36; Tucker, 7 B 42, 50], but not by a police officer below the rank of one in-charge of a thana; e.g., in charge of a patrol boat [Md. Yunus, 50 C 318]. [s 129.3] Failure to disperse.— Unlawful character of an assembly has to be determined with reference to section 141 of Indian Penal Code, 1860 alone and failure or refusal to disperse does not convert a lawful assembly into an unlawful one [Hanuman Singh v State, AIR 1969 All 130 : 1969 Cr LJ 359 : 1969 All WR 98 : 1969 All CR R 63]. An assembly for lawful purpose may excite such opposition from others as is likely to disturb the peace [Tucker, sup]. The section speaks of (i) an actual unlawful assembly and (ii) a potential unlawful assembly : When it appears that the behaviour of an assembly of five or more persons is such as to indicate that it would be an active party to the disturbance of public peace, or that it is reasonably calculated to provoke others to a breach of the peace, it may be dispersed under the section [Yeshwant v Emperor, AIR 1933 Nag 277 : (1933) 34 Cr LJ 705 : 1444 IC 232]. [s 129.4] Unlawful assembly.— See section 141, Indian Penal Code, 1860 and [Shambhu Nath Singh v State of Bihar, AIR 1960 SC 725 : 1960 Cr LJ 1144, Mohadeo, AIR 1970 SC 1482]. [s 129.5] Constitutional position.— In applying sections 129–132, the provisions of Article 19(1)(b) and 19 (3) of the Constitution have to be kept in mind. The right to assemble “peaceably and without arms” is guaranteed subject to reasonable restrictions imposed by law in the interests of maintaining the sovereignty and integrity of India or public order Cf. Himat Lal K. Shah v Police Commissioner Ahmedabad, AIR 1973 SC 87, 95 : 1973 Cr LJ 204 : (1973) 1 SCC 227 (SC) : State of Bihar v Misra, 1970 3 SCC 83]. [s 129.6] Common law.— The common law had already laid down the principle that the officers charged with maintenance of law and order can use only that much force as is necessary for disposal of an unlawful assembly and suppression of riot. Lord Bowens report on Collier’s Strike and Riot (Featherstone riots 1893). Sections 129–132 of Code of Criminal Procedure, 1973 substantially reflected the same principle [QE v Subba Naik, 1898 ILR 21 Mad 249, 252]. [s 129.7] Complaint against police.— When a complaint is made against a police officer and allegations are made indicating that he had purported to act under section 129 and in so doing had committed some offence, the court will not entertain the complaint unless it appears that the government had sanctioned the prosecution. If the allegations do not indicate such facts, the court can have no ground for looking to the sanction and must proceed with the complaint in the same manner as against any other person. The occasion to consider the want of sanction would be when at any later stage it appears to the court that the action of the police officer appears to come within section 129. This can be either when the accused makes such a suggestion or when evidence or circumstances prima facie show it; the mere suggestion of the accused will not be sufficient to hold that sanction was necessary [Nagraj v State of Mysore, AIR 1964 SC 269 : 1964 (1) Cr LJ 161].

Page 3 of 3 [s 129] Dispersal of assembly by use of civil force.— If an order under section 30 of the Police Act, 5 of 1861 is disobeyed, this section applies [Hare Kr, 28 Cr LJ 443]. The police officer may act if he is convinced that the assembly is likely to disturb the public peace [Raghunath, 47 A 205, 215]. There must be evidence of the fact at the trial [Abdul Hamid, 2 P 134]. The opinion of the police officer (who ordered dispersal) on the conduct of the assembly is no doubt relevant and of great weight but the court has jurisdiction to determine the legality of the command. [Yeshwant v Emperor, AIR 1933 Nag 277 : (1933) 34 Cr LJ 705 : 144 IC 232]. [s 129.8] Sub-section (2)—Force in dispersal.— Refusal to disperse (sections 151, 145, Indian Penal Code, 1860). When the accused plead that they acted in exercise of their powers under section 129 sanction is necessary [Zahir Ahmad v Ganga Prasad, AIR 1963 All 4 : 1863 (1) Cr LJ 20 : 1962 All LJ 654 : 1962 All WR 543]. The degree of force lawfully usable depends on the nature of the assembly. It must always be proportioned to the circumstances and the end to be obtained. Killing can only be justified by the necessity for protecting persons or property against various forms of violent crime or by the necessity of dispersing a riotous crowd which is dangerous unless dispersed [Subba Naik, 21 M 249, 252]. The subordinate officer ordered to fire is to exercise his own judgment as to the necessity [Allah Rakhio, 26 Cr LJ 142]. Observation on the difficulties and dangers of police officer confronted by an excited mob. [Md. Yunus, 50 C 318]. (As to help of special police officers, see Police Act, 5 of 1861, sections 15, 17). [s 129.9] Compensation.— As a working principle and for convenience, the Supreme Court, in a case of police firing, gave a direction that Rs. 20,000/- should be paid for every case of death and Rs. 5,000/- for injured persons. This would be without prejudice to any just claim for compensation. There was no dispute that as a result of the police firing, 21 persons had died and several others were injured. No justification had been indicated as to why the said compensation should not be given in case of death or injury. [People’s Union for Democratic Rights v State of Bihar, AIR 1987 SC 355 : 1987 Cr LJ 528 : (1987) 1 SCC 205 (1987) 1 SCJ 351 (SC)]. After this judgment, compensation has been ordered in many cases, See PM Bakshi’s Selective Commentary on the Constitution (1995). End of Document

[s 130] Use of armed forces to disperse assembly.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER X MAINTENANCE OF PUBLIC ORDER AND TRANQUILLITY > A.—Unlawful Assemblies

The Code of Criminal Procedure, 1973 CHAPTER X MAINTENANCE OF PUBLIC ORDER AND TRANQUILLITY Provisions of four chapters of the old Code, namely chapters 9, 10, 11 and 12 have been incorporated in this one chapter 10 divided into four parts—Pt A (Unlawful Assemblies—sections 129 to 132), Pt B (Public Nuisance— sections 133 to 143), Pt C (Urgent cases of Nuisance and Apprehended Danger—section 144), Pt D (Disputes as to Immovable Property—sections 145 to 148).

A.—Unlawful Assemblies [s 130] Use of armed forces to disperse assembly.— (1) If any such assembly cannot be otherwise dispersed, and if it is necessary for the public security that it should be dispersed, the Executive Magistrate of the highest rank who is present may cause it to be dispersed by the armed forces. (2) Such Magistrate may require any officer in command of any group of persons belonging to the armed forces to disperse the assembly with the help of the armed forces under his command, and to arrest and confine such persons forming part of it as the Magistrate may direct, or as it may be necessary to arrest and confine in order to disperse the assembly or to have them punished according to law. (3) Every such officer of the armed forces shall obey such requisition in such manner as he thinks fit, but in so doing he shall use as little force, and do as little injury to person and property, as may be consistent with dispersing the assembly and arresting and detaining such persons. [s 130.1] Changes.— Sub-section (1) corresponds to the old section 129 with insertion of the word “Executive” and sub-sections (2) and (3) correspond to sub-sections (1) and (2) of the old section 130 with some verbal alterations without any change in substance. [s 130.2] Scope and application of section 130.— The provisions contained in sections 130 and 131 of Code of Criminal Procedure, 1973 cannot be treated as comparable and adequate to deal with the situation requiring the use of armed forces in aid of civil power as envisaged by the Armed Force (Special Provisions) Act, 1958 [Naga People’s Movement of Human Rights v UOI; AIR 1998 SC 431 : (1998) 2 SCC 109]. End of Document

[s 131] Power of certain armed force officers to disperse assembly.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER X MAINTENANCE OF PUBLIC ORDER AND TRANQUILLITY > A.—Unlawful Assemblies

The Code of Criminal Procedure, 1973 CHAPTER X MAINTENANCE OF PUBLIC ORDER AND TRANQUILLITY Provisions of four chapters of the old Code, namely chapters 9, 10, 11 and 12 have been incorporated in this one chapter 10 divided into four parts—Pt A (Unlawful Assemblies—sections 129 to 132), Pt B (Public Nuisance— sections 133 to 143), Pt C (Urgent cases of Nuisance and Apprehended Danger—section 144), Pt D (Disputes as to Immovable Property—sections 145 to 148).

A.—Unlawful Assemblies [s 131] Power of certain armed force officers to disperse assembly.— When the public security is manifestly endangered by any such assembly and no Executive Magistrate can be communicated with, any commissioned or gazetted officer of the armed forces may disperse such assembly with the help of the armed forces under his command, and may arrest and confine any persons forming part of it, in order to disperse such assembly or that they may be punished according to law; but if, while he is acting under this section, it becomes practicable for him to communicate with an Executive Magistrate, he shall do so, and shall thenceforward obey the instructions of the Magistrate, as to whether he shall or shall not continue such action. [s 131.1] Changes.— Section 131 corresponds to the old section 131 with addition of certain words. The word “gazetted” has been added to fit in with the categories of members of Central Reserve Police and Border Security Forces who are Armed Forces of the Union. [s 131.2] Scope of sections 130 and 131 of CrPC.— The provisions contained in sections 130 and 131 of Code of Criminal Procedure, 1973 cannot be treated as comparable and adequate to deal with the situation requiring the continuous use of armed forces in aid of the civil war for certain period in a particular area as envisaged by the central act and it is not possible to hold that since adequate provisions to deal with the situation requiring the use of the armed forces in aid of civil powers are contained in sections 130 and 131 of Code of Criminal Procedure, 1973, the conferment of the powers on officers of the armed forces under section 4 of the central act to deal with a grave situation of law and order in a state is discriminatory in nature and is violative of Article 14 [Naga Peoples Movement of Human Rights v UOI, (1998) 2 SCC 109 : AIR 1998 SC 431].

End of Document

[s 132] Protection against prosecution for acts done under preceding sections.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER X MAINTENANCE OF PUBLIC ORDER AND TRANQUILLITY > A.—Unlawful Assemblies

The Code of Criminal Procedure, 1973 CHAPTER X MAINTENANCE OF PUBLIC ORDER AND TRANQUILLITY Provisions of four chapters of the old Code, namely chapters 9, 10, 11 and 12 have been incorporated in this one chapter 10 divided into four parts—Pt A (Unlawful Assemblies—sections 129 to 132), Pt B (Public Nuisance— sections 133 to 143), Pt C (Urgent cases of Nuisance and Apprehended Danger—section 144), Pt D (Disputes as to Immovable Property—sections 145 to 148).

A.—Unlawful Assemblies [s 132] Protection against prosecution for acts done under preceding sections.— (1) No prosecution against any person for any act purporting to be done under section 129, section 130 or section 131 shall be instituted in any Criminal Court except— (a) with the sanction of the Central Government where such person is an officer or member of the armed forces; (b) with the sanction of the State Government in any other case. (2) (a) No Executive Magistrate or police officer acting under any of the said sections in good faith; (b) no person doing any act in good faith in compliance with a requisition under section 129 or section 130; (c) no officer of the armed forces acting under section 131 in good faith; (d) no member of the armed forces doing any act in obedience to any order which he was bound to obey, shall be deemed to have thereby committed an offence. (3) In this section and in the preceding sections of this chapter,— (a) the expression “armed forces” means the military, naval and air forces, operating as land forces and includes any other Armed Forces of the Union so operating; (b) “officer”, in relation to the armed forces, means a person commissioned, gazetted or in pay as an officer of the armed forces and includes a junior commissioned officer, a warrant officer, a petty officer, a non-commissioned officer and a non-gazetted officer;

Page 2 of 3 [s 132] Protection against prosecution for acts done under preceding sections.— (c) “member”, in relation to the armed forces, means a person in the armed forces other than an officer. [s 132.1] Changes.— Sub-sections (1) and (2) correspond to the old section 132 and sub-section (3) corresponds to the old section 132A with the following changes:

(1) Old section 132 has been divided into sub-sections (1) and (2) and in sub-section (1) clauses (a) and (b) have been substituted for the words with the sanction of the State Government; and (2) In sub-section (2), old clauses (a), (c), (b) and (d) have been placed as clause. (a) (b), (c) and (d), respectively, with additions and alterations. (3) In sub-section (3), certain words have been newly added.

As the definition of the word “officer” in the old section 132 led to confusion between superior officers and inferior officers, it has been removed by dividing the armed forces into officers and “members”. [s 132.2] Scope and application of section 132.— When the court finds that prosecution could not be instituted without sanction, it should not order discharge or acquittal of accused, but should reject the complaint [Nagraj v State of Mysore, AIR 1964 SC 269 : (1964) 1 Cr LJ 161]. The section is as wide as if not wider than section 197 and the principle of the decision in Ganga Raju, 52 M 602 : AIR 1929 M 659 is equally applicable to section 132 [MN Chamnad v MN Rama Rao, AIR 1933 Mad 268 : (1933) 34 Cr LJ 528 : ILR (1933) Mad 271 (2)]. No sanction is necessary when the police officer is not an “officer in charge of a police station” as his action is illegal [Md. Yunus, 50 C 318]; nor when police officers are charged under sections 302, 304, 326, 148 of Indian Penal Code, 1860, etc., but it becomes necessary if they can show that they acted or meant to act under section 129 [Abdul Rahim, 25 Cal WN 623, 629; see further Giani Ajmer Singh v Ranjit Singh Gurewal, AIR 1965 Punj 192 : (1965) 1 Cr LJ 585 : 66 Punj LR 1152].

To get the benefit of section 132, the accused has to show (i) that there was an unlawful assembly; (ii) that the unlawful assembly was commanded to disperse; (iii) that either the assembly did not disperse on command, or if no command had been given, its conduct had shown a determination not to disperse; and (iv) that in the circumstances he had used force against the assembly. It is for the prosecution to prove the offence in the sense that it was committed in the circumstances in which no recourse to an exception could be taken [Nagraj v State of Mysore, AIR 1964 SC 269 : 1964 (1) Cr LJ 161 (SC)]. The accused cannot in the first instance be asked to prove the existence of an unlawful assembly as a requisite for sanction [MN Schamnad v MN Rama Rao, AIR 1933 Mad 268 : (1933) 34 Cr LJ 528 : ILR (1933) Mad 271 (2); Elaya, 1937 MWN 1243]. The protection in section 132 will be rendered nugatory, if the onus is to be thrown on the accused to prove that they were acting in discharge of their duties under chapter IX-A. It cannot be said that to find out whether the accused acted under the chapter or not, only the complaint should be looked into and not any other circumstances [VD Yesudasan v Gurusamy, AIR 1957 Mad 555 : 1957 Cr LJ 980 : 70 Mad LW 447 : 1957 Mad LJ (Cri) 206 : 1957 (1) Mad LJ 353 (cases reviewed); Sankarankutty Menon v Deputy Superintendent of Police, AIR 1961 Ker 260 : 1961 (2) Cr LJ 484 : 1961 Ker LT 208 : 1961 Mad LJ (Cri) 522 : ILR (1961) 1 Ker 361; Krishna Pillai Madhuvan Pillai v P Sadasivan Pillai, AIR 1963 Ker 7 : 1963 (1) Cr LJ 53 : 1961 (2) Ker LR 226]. Want of sanction is not curable by section 465 [Perumal, 31 M 80]. Sanction is necessary when the complainant is injured in a lathi charge by the police to disperse persons picketing the State bus. To require sanction, the principle under section 197 is applicable. There must be a reasonable connection between the act complained of and the duty of the public servant [Sankarankutty Menon v Deputy Superintendent of Police, AIR 1961 Ker 260 : 1961 (2) Cr LJ 484 : 1961 Ker LT 208 : 1961 Mad LJ (Cri) 55 sup; Sushil Kumar, (1980) 49 Cut LT 167]. Whether sanction is necessary is a mixed question of law and fact [Chinnaswami Reddiar v K Kuppuswamy AIR 1955 Mad 534 : 1955 Cr LJ 1264 : 1955 Mad WN 167].

Section 79 of Indian Penal Code, 1860 which protects an act justified by law can be applied when the facts are

Page 3 of 3 [s 132] Protection against prosecution for acts done under preceding sections.— known at the trial, but section 132 operates only before the trial begins [Schamnad, sup]. Good faith (section 52 of Indian Penal Code, 1860). In the circumstances of the case, the police officers were not acting in good faith [Subba Naik, 21 M 249]. [s 132.3] Section 197 of CrPC.— The complaint against the Superintendent of Police was that the procession had been teargassed and damage to public property was caused by setting fire to it. If the allegations made in the complaint do not attract the protection of section 197 or section 132, the court cannot throw it out for want of sanction merely because the accused might possibly visualise the defence which it would be open to him to substantiate at the trial. The acts in the complaint could not prima facie and on the material existing be judicially found to fall within the official duties of the accused [Giani Ajmer Singh v Ranjit Singh Grewal, AIR 1965 Punj 192 : 1965 (1) Cr LJ 585 : 66 Punj LR 1152]. Report of Enquiry Commission under the Commissions of Enquiry Act, 1952 cannot be taken into consideration for determination whether sanction is required [Karam Singh v Hardayal Singh, 1979 Cr LJ 1211 (P&H) (PV Jagannath Rao v State of Orissa, AIR 1969 SC 215 followed)].

Even where a sanction under section 132 is obtained for the prosecution of a member of the armed forces that is not a substitute for sanction under section 197. A court taking cognizance without (separate) sanction under section 197 acts without jurisdiction. [Ram Kumar v State of Haryana, 1987 (1) SCJ 397 : AIR 1987 SC 735 : 1987 1 SCC 476 : 1987 Cr LJ 703]. [s 132.4] “Bound to obey”.— In sub-section (2) (d), there is no mention of good faith. In such case, obedience is sufficient if the order was one which the officer, soldier or person was bound to obey. Implicit obedience is required of the member of the armed forces. End of Document

[s 133] Conditional order for removal of nuisance.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER X MAINTENANCE OF PUBLIC ORDER AND TRANQUILLITY > B.—Public Nuisances

The Code of Criminal Procedure, 1973 CHAPTER X MAINTENANCE OF PUBLIC ORDER AND TRANQUILLITY Provisions of four chapters of the old Code, namely chapters 9, 10, 11 and 12 have been incorporated in this one chapter 10 divided into four parts—Pt A (Unlawful Assemblies—sections 129 to 132), Pt B (Public Nuisance— sections 133 to 143), Pt C (Urgent cases of Nuisance and Apprehended Danger—section 144), Pt D (Disputes as to Immovable Property—sections 145 to 148).

B.—Public Nuisances [s 133] Conditional order for removal of nuisance.— (1) Whenever a District Magistrate or a Sub-divisional Magistrate or any other Executive Magistrate specially empowered in this behalf by the State Government, on receiving the report of a police officer or other information and on taking such evidence (if any) as he thinks fit, considers— (a) that any unlawful obstruction or nuisance should be removed from any public place or from any way, river or channel which is or may be lawfully used by the public; or (b) that the conduct of any trade or occupation or the keeping of any goods or merchandise, is injurious to the health or physical comfort of the community, and that in consequence such trade or occupation should be prohibited or regulated or such goods or merchandise should be removed or the keeping thereof regulated; or (c) that the construction of any building, or the disposal of any substance, as is likely to occasion conflagration or explosion, should be prevented or stopped; or (d) that any building, tent or structure, or any tree is in such a condition that it is likely to fall and thereby cause injury to persons living or carrying on business in the neighbourhood or passing by, and that in consequence the removal, repair or support of such building, tent or structure, or the removal or support of such tree, is necessary; or (e) that any tank, well or excavation adjacent to any such way or public place should be fenced in such manner as to prevent danger arising to the public; or (f)

that any dangerous animal should be destroyed, confined or otherwise disposed of, such Magistrate may make a conditional order requiring the person causing such obstruction or nuisance, or carrying on such trade or occupation, or keeping any such goods or merchandise, or owning, possessing or controlling such building, tent, structure, substance, tank, well or excavation, or owning or possessing such animal or tree, within a time to be fixed in the order—

(i)

to remove such obstruction or nuisance; or

Page 2 of 14 [s 133] Conditional order for removal of nuisance.— (ii) to desist from carrying on, or to remove or regulate in such manner as may be directed, such trade or occupation, or to remove such goods or merchandise, or to regulate the keeping thereof in such manner as may be directed; or (iii) to prevent or stop the construction of such building, or to alter the disposal of such substance; or (iv) to remove, repair or support such building, tent or structure, or to remove or support such trees; or (v) to fence such tank, well or excavation; or (vi) to destroy, confine or dispose of such dangerous animal in the manner provided in the said order; or, if he objects so to do, to appear before himself or some other Executive Magistrate subordinate to him at a time and place to be fixed by the order, and show cause, in the manner hereinafter provided, why the order should not be made absolute. (2) No order duly made by a Magistrate under this section shall be called in question in any Civil Court. Explanation.—A “public place” includes also property belonging to the State, camping grounds and grounds left unoccupied for sanitary or recreative purposes. [s 133.1] Changes.— Section 133 corresponds to the old section 133 with following changes:

(1) In sub-section (1) the words “any other Executive Magistrate especially empowered in this behalf by the State Government” and “the report of a police officer” have been substituted for “a Magistrate of the first class” and “a police report”, respectively. (2) The paras of sub-section (1) have been numbered (a) to (f) and (i) to (vi). (3) In the last para of sub-section (1), the words “Executive Magistrate subordinate to him” and “show cause in the manner hereinafter provided why the order should not be made absolute” have been substituted for “Magistrate of the first or second class” and “move to have the order set aside or modified in the manner hereinafter provided”, respectively.

Material changes introduced are:

(1) Besides the District Magistrate and Sub-divisional Magistrate, the power under the section has been conferred on any other Executive Magistrate especially empowered by the State Government. (2) In view of the specific definition of “police report” [see section 2(r)] the expression has been replaced by “report of a police officer”. (3) In the last para, the substitution of the words “show cause...absolute” has been done to bring the language in harmony with the language in Sections 136 and 138. [s 133.2] Scope and application of section 133.— Chapter 10-B deals with public nuisances, and the section empowers the Magistrates specified therein to make a conditional order for the removal of such nuisances in emergent cases. Sections 268-294-A of Indian Penal Code, 1860 which relate to public nuisances under the Indian Penal Code provide punishments for the commission of offences, while this chapter contains a procedure for speedy removal of the obstruction or the nuisance itself which is injurious to the public [see Chuni Lall, 15 C 460, 467 FB]. Nuisances are either public or private. The remedy for the latter is a civil suit although what constitutes nuisance may be common to both classes. A public nuisance is something which is offensive to the public, an inconvenience, discomfort or hurt, annoying or endangering the safety of the whole community in general. A private nuisance may amount to a public nuisance if it affects the public generally.

Page 3 of 14 [s 133] Conditional order for removal of nuisance.— Section 133 is categorical, although it appears discretionary. Judicial discretion has a mandatory import. When on disclosure of existence of a public nuisance from information and evidence the Magistrate considers that such unlawful obstruction or nuisance should be removed from any public place which may be lawfully used by the public, he is to order removal of such nuisance within a time to be fixed by the order [Municipal Council, Ratlam v Vardichan, (1980) Cr LJ 1075 (SC) : AIR 1980 SC 622 1628 : (1980) 4 SCC 162].

Section 133 of the Code comes into play only when there is an unlawful obstruction or nuisance on the way. If the obstruction is lawful, no proceeding under section 133 of Code of Criminal Procedure, 1973 can be maintained [Ajit Kumar Kesri v State of Jharkhand, 2014 (1) JLJR199].

Section 133 provides a speedy and summary remedy in case of urgency where danger to public interest or public health, etc. is concerned. In all other cases, the parties should be referred to the remedy under the ordinary law. The idea is that if immediate steps are not taken, irreparable injury will be done. Extraordinary powers were meant to be exercised under extraordinary circumstances [Basanti Devi v Rex, AIR 1949 All 650 : (1949) 50 Cr LJ 991 : 1949 All WR 440; Aysumma, 1977 Ker LT 329 : 1977 Mad LJ (Cri) 237].

The Magistrate has to act purely in the interests of the public. As drastic powers are conferred by section 133 (1), those powers should be sparingly used, so as not to become themselves a nuisance to the community at large. Any order made under section 136 without notice under section 133 (1) is bad. Consequential order under section 144 is also bad [Narayan Sahu v Sub Divisional Magistrate, Jaipur, 1986 Cr LJ 102 : (1985) 60 Cut LT 201 (Ori)].

Recourse to section 133 of Code of Criminal Procedure, 1973 cannot be substituted for the civil proceedings [Makhanlal v Buta Singh, 2003 Cr LJ 4147 (P&H) : 2003 (3) All CrLR 583 : 2003 (2) Rec CrR 416].

Procedure.—The order can be served as if it is a summons as per section 133 of Code of Criminal Procedure, 1973. On the service being effected, the person concerned may carry out the order in which case the proceedings will come to an end. If the person against whom the order is issued does not fulfil the conditions, then he has to show cause against the order or apply to the Magistrate to try the matter to see whether the order is reasonable and proper (section 135(b) and section 138(b) of Code of Criminal Procedure, 1973, respectively). Trial herein should be done as in a summons case. Section 136 of Code of Criminal Procedure, 1973 empowers the Executive Magistrate to make the order absolute, if the person does not comply with the order and fails to appear before the Magistrate. The same section shows that he may also be prosecuted under section 188 of the Indian Penal Code. If a person successfully shows cause, the order is discharged; but if the cause shown is not satisfactory, the order is made absolute as is clear from section 138 of Code of Criminal Procedure, 1973. A conjoint reading of section 138 and section 139 of Code of Criminal Procedure, 1973 will make it clear that the Magistrate may, if a person against whom an order under section 133 of Code of Criminal Procedure, 1973 is made appears before him or contests the existence of any public right before him, direct a local investigation or summon and examine any expert for the purpose of enquiry under section 137 or section 138 of Code of Criminal Procedure, 1973. Section 141 of Code of Criminal Procedure, 1973 proclaims that when an order is made absolute under section 136 or section 138 of Code of Criminal Procedure, 1973 the person so directed will be called upon to carry it out within a specified time and if he fails to do so, he can be prosecuted under section188 of Indian Penal Code, 1860. It is also open to the Magistrate to effectuate the order and recover costs from the defaulter (section 141(2) of Code of Criminal Procedure, 1973) [Pourna Samithi v State of Kerala, 2014 (1) KLJ 566 : 2014 Cr LJ 2277 (Ker)]. [s 133.3] Public Nuisance.— The provisions of section 133(1)(a) are not meant to settle private rights which have no public character. Section 133 of the Code can be resorted to only in the interest of public and cannot be made a substitute for litigation in Civil Courts in order to secure settlement of private disputes which do not affect the members of the public in general. Magistrate has no jurisdiction to entertain a private dispute [Laxman@Bala Gorekar v Janardhan S Kalanghtkar, 2007 Cr LJ 136 (Bom) : 2007 (1) KLJ 485]. [s 133.4] Power to be exercised in public interest :

Page 4 of 14 [s 133] Conditional order for removal of nuisance.— Exercise of power.—Magistrate is vested with powers under section 133 so that he may act in the public interest where speedy remedy is necessary, and the remedy cannot be postponed till curative proceedings are disposed of [Narayan v SDM, 1986 Cr LJ 102 : (1985) 60 Cut LT 201 (Orissa, Public interest), TKSM Kalyanasundaram v Kalyani Ammal, (1975) Cr LJ 1717 : 1975 (2) Mad LJ 93 : 1975 Mad LW (Cri) 168 (Mad) (Speedy remedy). [s 133.5] Condition for application.— The Magistrate must be satisfied that—

(1) it is a public nuisance, i.e., the number of persons injuriously affected is so considerable that they may reasonably be regarded as the public or a portion of it [see post; Public]. (2) it is not a private dispute between different members of the public for which the proper forum is the Civil Court [Ram Dayal Misra v Jagdamba Debi, AIR 1942 All 443 : (1943) 44 Cr LJ 76 : 1942 All LJ 558; Ramu v Murli Das, AIR 1943 All 19 : (1943) 44 Cr LJ 205 : 1942 All LJ 584; Farzand, 37 A 26]. (3) it is a case of great emergency of imminent danger to the public interest [Emperor v Tulsi Ram, AIR 1938 Lah 523 : ILR 20 Lah 281 : (1938) 39 Cr LJ 775 ; Nanumal v Emperor, AIR 1939 Lah 452 : (1939) 40 Cr LJ 933 : 41 Punj LR 515; Basanti, AIR 1939 A 650; Chhangu v Surjapal, AIR 1948 Oudh 19 : (1947) 48 Cr LJ 66 ; Kedarnath v Satish Chandra, AIR 1940 Oudh 75 : (1940) 41 Cr LJ 99 ; State of MP v Kedia Leather and Liquor Ltd, 2003 Cr LJ 4335 (SC) : AIR 2003 SC 3236 : 2003 (6) Scale 736 : (2003) 7 SCC 389 ]. If there is no emergency (e.g. when certain mills have been working under a licence for several years) [Kedar, sup), or when the alleged nuisance by encroachment has been in existence for several years [Rameshwar, A 1958 P 210], the party should go to the Civil Court.

Proceedings under section 133 for avoiding immediate danger and removal of public nuisance can be initiated inspite of pollution laws on such point. [Ganesh Pd. Sarawgi v State of Bihar, 1997 Cr LJ 928 : 1997 (1) BLJR 382 : 1996 92) Pat LJR 748 (Pat)].

In a property dispute between petitioner and respondent, the respondent issued a notice to the petitioner alleging that the petitioner was threatening the servants of respondent causing public nuisance; the notice contained no details as to date, time, and the persons in whose presence threats were given. Similar allegations against respondent were contained in the notice issued to her. Civil dispute was also pending between the parties. The FIR, show cause notice and issuance of bailable warrants against petitioner were held liable to be quashed [Bhai Sarabjit Singh v State, 2010 Cr LJ (NOC) 37 (Del)]. [s 133.6] Preliminary order.— Preliminary order in terms of section 133(1) of the Code is sine qua non, failing which the final order is illegal [Aryan Billiard and Pool Parlour and Fast Food Cornerv State of HP, 2011 Cr LJ 3017 (3019) (HP) : 2011 (4) RCR (Criminal) 433 : 2011 (4) RCR (Criminal) 633]. [s 133.7] Potential nuisance.— Section 133 applies only to existing and not to potential nuisances, i.e., to what may become is nuisance in the future nor does it apply when the nuisance has ceased [Kalyan Mul Mathur v Emperor, AIR 1936 Pat 577 : (1936) 37 Cr LJ 1159; Shriram v Emperor, AIR 1935 All 926 : (1936) 37 Cr LJ 347 (2); Gokal, 1 L 163; Rameshwar Narayan Agarwal v Emperor, AIR 1939 Bom 92 : (1939) 40 Cr LJ 444 : 41 Bom LR 84; Rebati Mohan Bose v Chottal Chandra Sen, AIR 1936 Cal 692 : 63 Cal LJ 5 : (1937) 38 Cr LJ 173 : AIR 1936 C 692; Gokul, AIR 1924 A 667; Rambharose v Sundarlal, AIR 1934 Nag 230 : (1934) 35 Cr LJ 1414 : 17 Nag LJ 158; Murlidhar, AIR 1961 Bom 263 ; 1960 (62) BomLR 849 : 1961 Cr LJ 641 : ILR 1960 Bom 946; Sohanlal v Mohanlal, 1976 Cr LJ 1354 (HP) : ILR 1976 5 HP 144]. A court can order Officers of Municipality punishment under section 188 of Indian Penal Code, 1860 for abating nuisance in a locality due to existence of open drains, pits and public excretion by humans for want of lavatories [Municipal Council, Ratlam v Vardichan, AIR 1980 SC 1622 : 1980 Cr LJ 1075 (1980) 4 SCC 162 (SC)].

Page 5 of 14 [s 133] Conditional order for removal of nuisance.— The Magistrate should remember that he is acting purely in the interest of the public, [Narayan Sahu SDM, 1986 Cr LJ 102 : (1985) 60 Cut LT 201] and he should be on his guard against use of the section as a substitute for civil litigation to settle private disputes [Farzand, 37 A 26] or to establish the title of a particular individual [Sushil Chandra v Tushar Kanti, ILR (1951) 1 Cal 126 : AIR 1955 NUC 1060]. It should not be resorted to in a dispute between the government and a private individual [Ramsingh, 2 Bom LR 818; Basaruddin, 11 C 8]. The section is concerned only with the existence of the alleged nuisance and not with any disputed question of a title which is a matter for the Civil Court [Mohommed, 18 Cal WN 1148]. As to when denial of existence of public right or a bona fide claim of private rights ousts the jurisdiction of the Criminal Court, [see section 137 post and commentary].

The power being summary in nature should be sparingly used [Manipur, 42 C 158] and its provisions should not be so worked as to become themselves a nuisance to the community at large [Gokal, 1 L 163 Shadi, 1888, Pr 17; Fazaldin, 12 Cr LJ 146]. [s 133.8] Averments in petition trying to establish individual right.— In a dispute regarding user of public tank, the petitioner pleaded that they were entitled to use water from tank for agricultural purpose as of right as the tank belonged to their community. The averments in the petition clearly showed that the petitioners also tried to establish their individual rights. It was held that the order of Sessions Judge directing Magistrate to reconsider petition on the point of maintainability was not proper [P Sankuthala v KO Narayan Kuthy, 2010 Cr LJ (NOC) 35 (Ker)]. [s 133.9] Length of use.— No length of use or obstruction can legalise a public nuisance [Municipal Commrs 7 BLR 499; Maksood Ali v President Union Board, Garhwa, AIR 1939 Pat 183 : (1939) 40 Cr LJ 516 : ILR 17 Pat 669; Jankari, AIR 1928 P 268; Jagroshan, AIR 1927 Pat 265 ; (1927) ILR 6 PAT 428 : 105 Ind. Cas. 238; Barkhandi v Emperor, AIR 1931 Lah 159 : (1931) 32 Cr LJ 1234]. It has, however, been held that in the case of a long user (encroachment on railway land by building) proceeding should not be taken as it is not intended to be a substitute for a civil suit [Rameshwar, AIR 1958 P 210]. In the case of long-standing unlawful obstruction, action can be taken on proof of genuine urgency [Asharfilal v State, AIR 1965 All 215 : 1965 (1) Cr LJ 535 : 1964 All WR 244 : 1964 All LJ 629].

Bona fide claim denying the existence of public right (section 137) and not a pretence ousts the Magistrate’s jurisdiction [Thakursao, AIR 1926 P 170; Chandrika, AIR 1924 P 418; Raghunath, A 1925 A 311; Annamali Reddi v Abdul Sathar Sahib, AIR 1953 Mad 674 : 1953 Cr LJ 1201 : 1953 (1) Mad LJ 160 : 1953 Mad WN (Cri) 16]. In the case of bona fide claim, the proceedings should be stayed and the parties refereed to Civil Court (see section 137 post). [s 133.10] Special law.— There are other special or local laws dealing with nuisances. The Magistrate’s power to act under section 133 is not affected by them [Rajagopala Chettiar v Samdum Begum, AIR 1943 Mad 357 : (1943) 44 Cr LJ 533 : 1943 (1) Mad LJ 257; Re : Lalman v Chaudhury Bishambhar Nath, AIR 1932 All 159 : (1932) 33 Cr LJ 524 : 1932 All LJ 49]. Magistrate can pass order against a person to whom a Municipality has granted licence to carry on a trade, to stop nuisance, but he cannot ask the Municipality to cancel the licence [Shaukat Hussain v Sheodayal Saksaina, AIR 1958 MP 350 : 1958 Cr LJ 1319 : 1957 MPLJ 623 : 1957 Jab LJ 936]. Proceedings under section 133 are more of the nature of civil than criminal proceedings. Person proceeded against is not an accused and he can give evidence on oath [Hirananda, 9 Cal WN 983; Srinath, 24 C 395]. A final order under section 133 should contain the reasons in support of it [Balwant Rai v Chhangi Ram, AIR 1963 Punj 124 : 1963 Cr LJ 314]. [s 133.11] Magistrate’s satisfaction.— Locus standi of the informant, or the possible injury or damage to him are not relevant considerations. What is relevant is the Magistrate’s satisfaction [VV Balakrishna Nambiar v R Madhavan Nambiar, 1986 Cr LJ 109 : 1985 (2) Crimses 510 : 1985 Ker LT 425 (Ker)]. [s 133.12] Sections 133 and 144.— Under section 133 a conditional order is passed to remove the nuisance or, if objected to, to appear and show cause; while under section 144, the order is of an absolute nature [Harimohan, 1 BLR 20]. Though petitions are

Page 6 of 14 [s 133] Conditional order for removal of nuisance.— filed under chapters 10C and 10D, Magistrate can proceed under section 133 [Annamali Reddi v Adbul Sathar Sahib, AIR 1953 Mad 674 : 1953 Cr LJ 1201 : 1953 (1) Mad LJ 160 : 1953 Mad WN (Cri) 16]. Ordinarily, orders under section 133 are directed to particular individuals, while orders under section 144 are addressed to the public generally [Jokhu, 8 A 99].

A comparison between the provisions of sections 133 and 144 of the Code shows that while the former is more specific, the latter is more general. Therefore, nuisance specially provided in the former section is taken out of the general provisions of the latter section. The proceedings under section 133 are more in the nature of civil proceedings than of criminal nature. Section 133(1)(b) relates to trade or occupation which is injurious to health or physical comfort to the community and not with those which are in themselves nuisance, but in the course of which, public nuisance is committed. In order to bring a trade or occupation within the operation of this section, it must be shown that the interference with public comfort was considerable, and a large section of the public was affected injuriously. Sometimes there is confusion between section 133 and section 144 of the Code. While the latter is a more general provision, the former is more specific. While the order under the former is conditional, the order under the latter is absolute [Kachrulal Bhagirath Agrawal v State of Maharashtra, AIR 2004 SC 4848 :2004 AIR SCW 5516 : 2004 Cr LJ 4634 : 2004 (4) Crimes 99 (SC); Suhelkhan Khudyarkhan v State of Maharashtra, AIR 2009 SC 1868 : (2009) 5 SCC 586 : 2009 (5) Scale 688]. [s 133.13] Sections 133 and 147.— Section 133 is of a remedial nature whereas section 147 is preventive. A proceeding under section 133 can only be resorted to when there is a question of removal of existing obstruction on a public place whereas a proceeding under section 147 can be drawn up when there is no obstruction but there is an apprehension of interference of the right of user of any land or water and consequently apprehension of breach of peace [Ismatan Nessa v Sarat Chandra Borua, 1976 Cr LJ 129 (Gau); (Satya Sundar Ghose v Sailendra Kinkar Pal, AIR 1954 Cal 560 : 1954 Cr LJ 1712 and Bhubaneswari Goswami v Kaliram Burman, AIR 1960 Ass 90 : 1960 Cr LJ 794 relied on)]. Existence of section 133 explains why mandatory action has not been prescribed under section 147 [Usman Ali v Emperor, AIR 1938 Nag 297 : (1938) 39 Cr LJ 584 : 1938 Nag LJ 139]. Section 133 is not a bar to a proceeding under section 147 [Karuppana, 15 Cr LJ 362; Annamali Reddi v Abdul Sathar Sahib, AIR 1953 Mad 674 : 1953 Cr LJ 1201 : 1953 (1) Mad LJ 160]; but it is illegal to pass order under section 147 after starting proceeding under section 133 [Abdool Rakman 15 Cal WN 667; Annamali Reddy v Abdul Sathar Sahib, AIR 1953 Mad 674 : 1953 Cr LJ 1201 : 1953 (1) Mad LJ 160.

In most cases arising under Sections 133, 145 and 147, the parties are kith and kin. They come from the poor bracket. They litigate upto the High Court, and the vanquished to go back to Civil Court for starting another legal battle. The Executive Magistrate should be careful and circumspect while drawing up proceedings under these sections. He must bear in mind the impact of the proceedings on the poor litigants and the adverse effect on the parties. The orders of the courts are coterminous with the judgment or decree of the Civil Court. Before entertaining such proceedings, the Executive Magistrate ought to be cautious. When the matter can be fully and finally determined by the Civil Court and there is time enough for the party to ask for relief in the Civil Court, it is desirable that the party should go to the Civil Court and obtain appropriate relief [Bhaba Kanta Bharali v Ramchanra Bharli, 1987 Cr LJ 1155 : 1987 (1) Gau LR 339 (Gauhati)cf. Ismatennassa v Sarat Chandra Barua, 1976 Cr LJ 129 (Gau)]. [s 133.14] Water Pollution Act.— Water (Prevention and Control of Pollution) Act, 1974, has not taken away powers of sub-divisional Magistrate under section 133. The Sub-divisional Magistrate has power to pass order to close a factory causing pollution, when appreciation certificate from Pollution Control Board was not produced. The non-production of the certificate strengthens the view taken by the Sub-divisional Magistrate in passing the final order under section 136. [Nagarjuna Paper Mills Ltd v Sub-Divisional Magistrate and Revenue Divisional Officer, 1987 Cr LJ 2071 (AP); see PM Bakshi’s Procedural Options in Environmental Law (1993). Section 133 of the Code does not stand immediately repealed by the Pollution Acts. The field of operation of section 133 of the Code and Pollution Acts are different. They operate in their respective fields and there is no impediment for their existence side by side [State of MP v Kedia Leather and Liquor Ltd, AIR 2003 SC 3236 : 2003 Cr LJ 4335 : (2003) 7 SCC 389 : 2003 (4) Crimes 23 (SC)] [s 133.15] Rent Control Act.— Under section 11(1), Kerala Building (Lease and Rent Control) Act there is a restriction on eviction. That section does not apply if the landlord does not propose to evict the tenant. Section 133 of Code of Criminal Procedure,

Page 7 of 14 [s 133] Conditional order for removal of nuisance.— 1973 can be resorted to if the boundary is likely to fall and thereby to cause injury to neighbours or passers-by. The non-obstante clause in section 13, Kerala Rent Control Act does not oust Magistrate’s jurisdiction under section 133 of Code of Criminal Procedure, 1973 [Shanmughan v Paul, 1988 Cr LJ 66 : 1986 Ker LT 1242 : 1986 Ker LJ 970 Ker]. [s 133.15] Order of Proceedings.— Proceedings take the following order: Issue of conditional ex parte order [section 133(1)]; service of order (section 134), in urgency, issue of temporary injunction (section 142). Person to obey or show cause (section 135). If there is no appearance, court should ask the person whether existence of public right is denied (section 137). If there is denial, enquiry is to be made and a finding recorded under section 137(2). If the finding is that there is reliable evidence to support the claim, the proceedings shall be stayed until decision by Civil Court, and, if it is decided that the claim is not well-founded, evidence is taken and the conditional order is made absolute or proceedings are dropped (section 138). Magistrate may direct local investigation or examine an expert (section 139). If the order is made absolute after enquiry, the Magistrate proceeds to enforce it (section 141). [s 133.17] Order of initiation of proceedings under section 138 of CrPC when improper.— If the person against whom an order under section 133 has been made, denies the existence of a public right in respect of the subject matter of the case, the Executive Magistrate has to hold an inquiry to find out whether or not there is any reliable evidence in support of such denial. If there is reliable evidence in support of the denial, the Magistrate has to stay the proceedings of the case until the matter of existence of the public right has been decided by the competent court. The Executive Magistrate has jurisdiction to proceed under section 138 of Code of Criminal Procedure, 1973, only when there is no reliable evidence to show that the alleged right is a public right or there is no denial of existence of any public right [Sita Ram Mishra v State of UP, 2010 Cr LJ 3618 (3619) (All) : 2010 (2) ACR 1899]. [s 133.18] Magistrate Empowered.— Of the Magistrates empowered under this section, only a District Magistrate or a Sub-divisional Magistrate who passes a conditional order directing a person to appear before him can direct him to appear before another Executive Magistrate subordinate to him. The District Magistrate or the Sub-divisional Magistrate can also subsequently legally send the case to another Executive Magistrate subordinate to him for final order and disposal under section 411. An Executive Magistrate especially empowered to take action under the section can only direct the person to appear before himself as all Executive Magistrates are of one class and an Executive Magistrate is not subordinate to another except to the District Magistrate or Sub-divisional Magistrate. Such an Executive Magistrate cannot also subsequently legally send the case to another Executive Magistrate as provisions of section 411 do not apply. [s 133.19] Public: Public Place : Community.— Definition in Penal Code (section 12) has to be adopted. The best criterion is to see whether the right claimed is vested in such a large number of persons as unascertainable as to make them a community or class [Harnandan Lal v Rampalak Mahato, AIR 1939 Pat 460 : ILR 18 Pat 76 : (1939) 40 Cr LJ 837; see Munna 29 Cr LJ 661; Maharana, 22 B 988; Jasodanand, 20 A 501; Jagnanath, 36 A 209; Hriday, 10 Cr LJ 210; Jaffer, 32 C 930; CV Muthuvelas Velappan KN Narayanan Nair, AIR 1964 Ker 252 : 1964 (2) Cr LJ 417 (1) : 1963 Ker LT 934 : 1964 Mad LJ (Cri) 331]. Encroachment upon land owned by State Railway is within the section [Ram Kripal, A 1945 P 309].

Place [see section 2(p) and explanation to the section]. Place becomes public when the public have access to it [Sukhnandan, 23 Cr LJ 27]. If nuisance is not in a public place or public way, the section does not apply though proceedings may be taken under the Indian Penal Code [Khusi, 24 Cr LJ 457].

Obstruction raised on municipal drain can be removed under clause (a) [Ranjana Paul v State of Jharkhand, 2004 Cr LJ 1505 (1506) (Jhar) : 2003 (2) JLJR 504 : 2004 AIR Jhar HCR 638].

Where any easementary or customary right is claimed, the proper remedy is to file suit in Civil Court [Asgar Ali v Hanif, 2002 Cr LJ (NOC) 386 (HP)].

Page 8 of 14 [s 133] Conditional order for removal of nuisance.— In a case where the public did not have any right rather a lawful right to pass through the disputed land and carry dead body through the same, the order of Magistrate for removal of obstructions from the said land was held to be without jurisdiction [Asgar Ali v Hanif, 2002 Cr LJ (NOC) 386 (HP)].

“Community” means public or neighbours [Raghunandan, sup] or residents of entire locality but not residents of a house [Dwarika Prosad v BK Roy Choudhury (Dr.), AIR 1950 Cal 349 : (1950) 51 Cr LJ 1315 : 85 Cal LJ 276; Shaukat Hussain v Sheodayal Saksaina, AIR 1958 MP 350 : 1958 Cr LJ 1319 : 1957 MPLJ 633 : 1957 Jab LJ 936]. [s 133.20] Unlawful Obstruction or Nuisance from any way, river, etc.— The obstruction or nuisance must be proved to exist on some way, river or channel, which may lawfully be used by the public or on some public place [Manuel, AIR 1970 Goa 1, FB]. Any obstruction to the right to the use of a river [Jaffer, 32 C 930; Jagannath, 21 Cr LJ 55], or channel [Bharosa, 34 A 345; Bhagwan, 28 Cr LJ 203], or water course [Ramaswami, 27 Cr LJ 105], or a public road, whether it causes practical inconvenience or not, is a nuisance [Umrao, 23 A 84; Sallumal, AIR 1930 A 751; Kedarnath, 23 A 159; Jagroshan, AIR 1927 P 265]. “Rasta” certainly does not necessarily connote a public road [Gati Krishna De v Govinda Mandal, AIR 1955 NUC 568 (Cal)]. “Channel” includes a catchment area with a water course in the centre [Ramaswami, AIR 1926 M 165]. The obstruction must be to public user [Maharana, 22 B 988, 992]. If obstruction to public road is not great, parties should be left to their civil rights [Sadasheo Chintaman Temne v Chintaman, AIR 1945 Nag 226 : (1946) 47 Cr LJ 217 : 1945 Nag LJ 43].

Section 133 is not intended for long-standing obstruction or encroachments but for those recently made in a public place [Baisakhi, AIR 1930 L 361; Consolidation Co-operative Society v Har Gobind, AIR 1939 Lah 276 : (1939) 40 Cr LJ 758; Khair Din v Wasan Singh, AIR 1935 Lah 28 : (1936) 37 Cr LJ 70; Nanumal v Emperor, AIR 1939 Lah 452 : (1939) 40 Cr LJ 933 : 41 Punj LR 515; see Ghurahu, AIR 1926 A 157]; nor for longstanding use [Lalman, 54 A 359 (use of lime kiln)].

The removal of “nuisance” must be from a public place [Sheo Saran, 12 Cal WN 70 (order to close graveyard is not)]. Although a cremation ground may not be in itself a nuisance, yet it may be so, if used in an offensive manner [Indra, 25 C 425; Swaminatha, 19 M 464].

Where the accused had put obstructions by keeping building material on a public road on disputed plot, the order directing removal of obstruction passed after hearing of the parties was held legal [Chandra Shekhar Bhatt v State, 2006 Cr LJ 2712 (Uttra) : (2006) 54 All CrC 206].

In the instantt case, the fact that the civil suit regarding the same disputed land was pending was suppressed in proceeding under section 133 of Code of Criminal Procedure, 1973. Held, order of removal of encroachment passed by the Magistrate without recording any findings as to construction on public way or any specifications of demolitions of construction was not proper. The case was remanded for fresh disposal [Diwakar Tiwari v State of UP, 2008 Cr LJ (NOC) 1276 (All) : 2008 (5) All LJ 7 : 2008 (62) All Cri C 140 : 2008 (3) All Cri R 2436].

The petitioner obstructed the natural flow of water by making a ridge over a plot which was public nuisance. The enquiry report of tahsildar also revealed about the same. Previously, the petitioner blocked the water flow by making a ridge over another plot which was removed by the tahsildar. Held, no illegality or procedural irregularity was committed by the SDM by passing order under section 133 for removal of unlawful obstruction of the natural flow of water [Ghasia Naik v State of Orissa, 2008 Cr LJ 4525 (4528) (Ori) : 2008 (41) OCR 11 : 2008 (70) All Ind Cas 334].

Where the respondents had been agitating over a traditional right for access to their house through the property of other persons, which was obstructed by the petitioner and others and, in such a situation, their remedy was elsewhere and certainly not in proceedings under section 133 of the Code. Unless it was alleged that the obstruction was on a public way or over a way which may be lawfully used by the public, the Executive

Page 9 of 14 [s 133] Conditional order for removal of nuisance.— Magistrate of entertaining any proceedings under section 133 of Code of Criminal Procedure, 1973 [Laxman v Janardhan S Kalangutkar, 2007 Cr LJ 136 (141) : 2006 (2) Bom CR (Cri) 938 (Bom) : 2006 (6) AIR HCR 302]. [s 133.21] “Trade or Occupation”.— Not only trades which are in themselves injurious to health or comfort but also trades which become injurious by reason of the “conduct of” them, i.e., the manner in which they are carried on, come within the clause [Cal S. N. Co, 58 C 854]. There must be a finding by the Magistrate that the conduct of the trade is a nuisance or a danger to the health or physical comfort of the community in presenti [Murlidar, AIR 1961 B 263]. The interference with public comfort should be considerable and a large section of the public must be injuriously affected [Fazal Din, 12 Cr LJ 146; Munnalal Brahmin v Shridhar Rao Lele, AIR 1934 Nag 193 (1) : (1935) 36 Cr LJ 591 (1) : 17 Nag LJ 54; Rameshwar Narayan Agarwal v Emperor, AIR 1939 Bom 92 : (1939) 40 Cr LJ 444 : 41 Bom LR 84; Raghunandan, 53 A 700 (noise by engine of a factory); Phiraya, 9 PR 1904 (working or ricehusking machines throughout the night) and not a few neighbours only [Rameshwar Narayan Agarwal v Emperor, AIR 1939 Bom 92 : (193) 40 Cr LJ 444 : 41 Bom LR 84; Lalman v Chaudh Bishambhar, (1932) 33 Cr LJ 527 : AIR 1932 All 159 : 1932 All LJ 39].

The public power of the Magistrate under the Code is a public duty to the members of the public who are victims of the nuisance and so he can exercise it when the jurisdictional facts are present. The conduct of trade must be injurious to the health a physical comfort of the community. There must, at any rate, be an imminent danger to the health or the physical comfort of that community in the locality in which the trade or occupation is conducted. A conjoint reading of section 133 and 138 of the Code discloses that it is the function of the Magistrate to conduct an enquiry and to decide as to whether there was reliable evidence or not to come to the conclusion to act under section 133 of Code of Criminal Procedure, 1973 [Kachrulal Bhagirath Agrawal v State of Maharashtra, AIR 2004 SC 4818 : 2004 Cr LJ 4634 : 2004 (4) Crimes 99 (SC)].

In this case, the running of flour mill and oil mill in a densely populated area was causing dust and obnoxious smell. The running of oil speller was also creating adverse effect on the health of the people of the vicinity. The noise level was more than the standard prescribed. It was held that the closure of mill on application under section 133 of Code of Criminal Procedure, 1973 was held proper [Bankelal Gupta v Anand Saxena, 2008 Cr LJ 1772 (1775) (MP) : 2008 (4) AIR Bom R 747 (NOC)]. [s 133.22] Atta Chakki/flour mill and cotton ginning machines.— It was alleged that installation of Atta Chakki and cotton ginning machines by the petitioners in front of house of complainant was spreading pollution in air. It was held that the flour mill having been installed 8–9 years prior to filing of complainant was a good ground to disentitle the complainant [Makhan Lal v Buta Singh, 2003 Cr LJ 4147 : 2003 (4) Rec Cr R 174 (P&H)].

In the instant case, the petitioner let out a shop to the respondent through a rent-note and there was a clause that the tenant will not create any nuisance and it was made clear that the shop would be utilised for bakery purposes. It was alleged that after letting out the shop, the size of the furnace had been increased and by raising the quantity of furnace, created public nuisance, which caused damage to the walls and roof of the nearby house. Held, it was a case of individual public obstruction and could not be public nuisance. However, it was not examined in the case whether the tenant had increased the furnaces which could amount to public nuisance and, therefore the case was remanded to the lower court [Ram Lal v State of Rajasthan, 2007 Cr LJ 1947 (1948) : 2007 (3) Raj Cri C 974 (Raj)].

The criminal complaint filed against the petitioner alleged that he was running a flour mill and pounding chilly causing public nuisance. No shopkeeper or individual residing near petitioner’s flour mill made any grievance. Action initiated against the petitioner for causing public nuisance was held liable to be set aside. His activity may fall within the ambit of private nuisance [Narendra Namdeorao Rajurkar v Diwakar Keshawrao Kawari, 2010 Cr LJ (NOC) 209 (Bom)].

In the case of poultry farm being run in a thickly populated area, which may prove injurious to the health of not only the individual but it may affect the health of nearly neighbours also, the conditional order directing closure

Page 10 of 14 [s 133] Conditional order for removal of nuisance.— of poultry farm with show cause notice to accused was held proper [Bhola Prasad Deo v State of Jharkhand, AIR 2004 HCR 847 Jhar : 2004 Cr LJ 2570 : 2003 (3) East Cr C 323 : 2004 (3) Rec Cr R 463 (Jhar)]. [s 133.23] Noxious trade.— In the case of trade alleged to be noxious, if remedy is available under any local act, a Magistrate may advise recourse to it but it is no bar to the exercise of his jurisdiction under section 133 [Lalman v Chaudhury Bishambhar Nath, AIR 1932 All 159 : ILR 54 All 359 : (1932) 33 Cr LJ 524]. The use of the word “regulated” shows that instead of total prohibition the court may direct that it should be regulated or mitigated so that it may not become a nuisance. [s 133.24] Electric welding noise pollution.— Order passed by District Magistrate against the petitioner to stop business of electric welding (noise pollution) was not interference with the order of the High Court which was passed on local petition, the order had been passed after due hearing [Mohd. Ahsan v State, 2000 Cr LJ 2504 : 2000 (1) Raj LW 535 : 2000 (3) Rec Cr R 748 (Raj) (BJ Shethna J.)]. [s 133.25] Electric poles causing nuisance.— The electric poles carrying electricity do not amount to nuisance. A petition for removal of electric poles on the ground that they are causing nuisance does not lie under section 133 of Code of Criminal Procedure, 1973. What he can do is to approach the Electricity Board for redressal of his grievance under the provisions of Electricity Act [Gurdev Singh v Punjab State Electricity Board, 2008 Cr LJ (NOC) 766 (P&H) : 2008 (2) AICLR 91]. [s 133.26] Prostitution.— Prostitutes playing their trade orderly and quietly cannot be interfered with [Nundo Kumaree, 24 WR 68; Basanta, 5 Cal WN 566] unless they become a nuisance by soliciting passers-by [Nurjan, 1900 PR 2].

A factory which emits noise or smoke can be restrained [Gobind Singh v Shanti Sarup, AIR 1979 SC 143 : 1990 Cr LJ 1596 Raj : (1979) 2 SCC 267 (SC)].

A fodder trade causing pollution may be restrained [Ajeet Mehta v State of Rajasthan, 1990 Cr LJ 1596 Raj : 1989 (1) Raj LW 598]. [s 133.27] Lawful trade.— Carrying on of a lawful trade cannot be interferred with [Ram Avtar v State of UP, AIR 1962 SC 1794 : 1963 (1) Cr LJ 14; M.P. Parameswaran Nair v P Madhavan Nair, 1975 Cr LJ 1306 : 1975 Ker LT 278 (Ker). [s 133.28] Trees.— The precise allegations raised, in the instant case, were that the trees standing on the property of the petitioner impede the growth and development of the trees in the property of the second respondent. It was further alleged that when the wind blowed there was possibility of the branches falling and causing injury to the employees of the second respondent and the improvements in his property. Held, the injury apprehended under section 133(d) of Code of Criminal Procedure, 1973 must be imminent and must stem from the likelihood of the tree falling and not from any other type of injury resulting from a standing tree which is not likely to fall. Section 133(1)(d) of Code of Criminal Procedure, 1973 was not attracted in the case [Maya Singh v State of Punjab, 2007 Cr LJ 1301 (1303) : 2007 (1) Ker LT 576 (Ker)]. [s 133.29] “Injury to persons living.....or passing by”.— Therefore, an owner cannot be ordered to repair his house standing in its own compound at a distance from the public road [Jasodanand, 20 A 501]. But see 1985 (2) Crimes 510 : 1985 Ker LT 425 noted infra. A wall likely to fall down inside the house of a neighbour and to cause injuries to persons is a public nuisance [Achalechand v Suraj Raj, AIR 1959 Raj 44 : 1959 Cr LJ 235 : 1959 Raj LW 310]. Danger to general public is not necessary for section 133 (1) (d) to apply. The dangerous condition mentioned in that section is treated as a nuisance, even though it does not come within section 268 of Indian Penal Code, 1860 [Vayalele Veettil Balakrishna Nambiar v R Madhavan Nambiar, (1986) Cr LJ 109 : 1985 (2) Crimes 510 : 1985 Ker LT 425 : ILR (1985) 2 Ker 637 (Ker)]. [s 133.30] “Should be fenced in, etc.”— Fencing may be ordered to prevent accidents but not something else, e.g., to fill up excavation [Sulemanji, 22 B

Page 11 of 14 [s 133] Conditional order for removal of nuisance.— 714; Bhagatram, AIR 1929 A 114], or to excavate a tank [Paul, 10 WR 51—CONTRA :Kiran, 27 Cal WN 459], or to effect any other improvement [Aluvala, 31 M 280]. [s 133.31] Order to remove unlawful construction.— In the instant case, the disputed land was being used as pathway by the respondent and other villagers. The petitioner obstructed the said pathway by constructing a thatched house. The respondents adduced evidence in support of their claims. The petitioner could not adduce any evidence. Order removing thatched house was held proper [Jadunath Nayak v Sub-Collector Bhadrak, 2003 Cr LJ 4666 : (2003) 96 Cut LT 605 : 2003 (25) OCR 273 (Ori)]. [s 133.32] “To remove, etc.”— “Remove” does not include restoring status quo [Bhagatram, AIR 1929 A 114]. So a bund removed cannot be ordered to be reconstructed [Rahimaddi, AIR 1925 C 399; Ramaswami, 27 Cr LJ 105], or a pit dug to be filled up [Bhagatram, sup]—CONTRA : Removal of nuisance from a tank by re-excavating or filling it up or clearing weeds, etc., can be ordered, [Bistoo, 10 WR, Cr 27; Kiran, 27 Cal WN 459].

Final order passed by a Magistrate without recording any evidence is violative of mandatory provisions of section 138 of Code of Criminal Procedure, 1973 [Kranti Parcel Service v State, 1997 Cr LJ 679 : 1996 (4) Crimes 462 : 1997 (1) APLJ 31 : 1996 (4) Andh LD 807 (AP)].

In this case, due to digging of the pit, obstruction was caused in the pathway. The Magistrate directed the petitioner to close the pit and allow public to use the pathway without recording evidence. The said order was held invalid [P Marappan v The District Collector, 2010 Cr LJ (NOC) 1258 (Mad)]. [s 133.33] Notice for removal of house in dilapidated condition not referring to expert opinion.— In a case where the notice for removal of house in dilapidated condition did not disclose any reference to opinion of experts and engineers regarding condition of house. It was held that the notice was not proper and direction was issued to the Magistrate to seek opinion of expert or engineer and thereafter pass the final order after providing an opportunity of hearing to the owner [Niranjan Singh v State of MP, 2009 Cr LJ (NOC) 944 (MP)]. [s 133.34] Jurisdiction.— Magistrate has no jurisdiction even to pass a conditional order under section 133(1) unless and until he has information that obstruction has been caused to a way which is being lawfully used by the public [Bhanu Mondal v Joydeb Choudhary, (1998) Cr LJ 320 : 1997 Cal CrLR 367 : 1997 (2) Cal HN 294 : (1997) 101 Cal WN 250 : 1998 (2) Crimes 307(Cal)]. [s 133.35] Pendency of civil suit.— Mere pendency of civil suit is not sufficient ground for dropping proceedings under sections 133 or 137 and 138 of Code of Criminal Procedure, 1973. The proceedings under Code of Criminal Procedure, 1973 is dropped when a specific order is passed by the Civil Court in respect of possession or when rights of the parties are decided [Budhwa v State of UP, 2006 Cr LJ 1037 (1040) (All) : 2006 (1) All LJ 503 : (2006) 54 All CrC 519]. [s 133.36] Criminal proceeding after failure in civil proceedings.— The petitioner (State) had failed to obtain an ad interim order in a civil proceedings. The state then filed an application under section 133 for an order of removal of iron gate and wall fixed and erected over the alleged public passage. The Magistrate passed an order relying on a report of the BDO obtained in some other case and that too without questioning the petitioner as to the existence of any public right or pathway. The order was held illegal [Manoharlal Dutt v State of WB, 2003 Cr LJ 2634 : 2003 Cal CrLR 613 (Cal)]. [s 133.37] Failure to ask questions.— In a Rajasthan case, the persons appearing under section 137(1) themselves deemed the right of way though the Magistrate did not put any questions on that point; it was held that failure to question then was a mere irregularity curable under section 465. [Budh Singh v Hapu Ram, 1996 Cr LJ 1576 : 1996 (2) Raj LW 36 : 1996 CrLR (Raj) 49 : 1996 Raj Cr C 495 (Raj)]. [s 133.38] Conditional order.— The order which is passed ex parte [Srinath, 24 C 395] is conditional; an absolute order is illegal [The Empress

Page 12 of 14 [s 133] Conditional order for removal of nuisance.— v Brojokanto Roy Chowdhury, ILR (1883) 9 Cal 637]. If the party ordered objects, he is asked to show cause. The forms of a conditional order and an injunction (section 142) are entirely different [Hargobind, AIR 1938 Nag 84]. The order is directed to particular individuals, except in emergency (chapter 10-D) when it can be addressed to the public generally [Jokhu, 8 A 99]. Meaning of person (section 11 of Indian Penal Code, 1860). The order should be in writing [see Thakur, 16 Cr LJ 24]. Without being vague or indefinite, it should state clearly and definitely what is to be done [Kalimohan, 11 Cr LJ 213; Parbutty, 16 C 9; Secy., Rate Payers’ Comm., 6 DLR (C) 41] and the time and place for showing cause [The Empress v Brojokanto Roy Chowdhuri, ILR (1883) 9 Cal 637]. Form (Schedule 2 No. 20). Unless several persons are jointly responsible, the order is to state accurately what each person is to do [Raimohan, 44 C 61; Khemchand, A 1928 L 187].

The Chairman, Punjab Pollution Control Board, submitted his report taking notice of the foul smell and pollution being caused to the inhabitants of the area as well as to the users of G.T. Road/National Highway. Another report has been obtained from the Tehsildar-cum-Executive Magistrate. The aforementioned report had also recorded the foul smell, pollution, dead bodies of animals, bones and carcasses of animals on the spot. It was on the basis of the said reports that the District Magistrate was compelled to pass a conditional order under section 133(i)(ii) of the Code. It was called upon the petitioners to stop their operation of Hadda Rori or show cause why the order should not be made final. The petitioners appeared before the District Magistrate and were given time to file their reply. They, however, failed to appear nor any reply was filed. As a consequence, the order was made final under the provisions of section 138 of the Code. It was held that there is no doubt that the District Magistrate has passed the order on 11 October- 2002 without recording any evidence but in a matter of nuisance calling for urgent attention, no delay could be brooked. The petitioners displayed lazy approach by remaining absent on 11 October 2002 nor did they file any reply. The aforementioned absence of the petitioners could lead to a reasonable inference that they did not have any thing to say in defence of the conditional order dated 20-September- 2002. Therefore, adequate opportunity had been given to the petitioners in the facts and circumstances of the present case. Thus, I do not find any infraction of procedural law envisaged by sections 133 or 138 of the Code [Ram Pal v State of Punjab, 2004 Cr LJ 2262 : 2004 (1) Rec Cr R 958 (P&H)].

Where the evidence of expert showed that there was absolutely no danger to shop of falling down, issuance of notice under section 133 for demolishing 15 shops on the ground of imminent danger to neighbouring residents was held not proper [Vasant Manga Nikumba v Baburao Bhikanna Naidu, 1996 SCC (Cri) 27 : 1995 Supp (4) SCC 54 (SC)].

A conditional order under section 133(1) of Code of Criminal Procedure, 1973 cannot be set aside by the High Court under section 482 of Code of Criminal Procedure, 1973 where no injunction has yet been issued by the Magistrate under section 142 and the conditional order has not been made absolute under section 136/138 of Code of Criminal Procedure, 1973 [Ramesh Chandra v Uttar Pradesh Pollution Control Board, 2000 Cr LJ 2771 : 2000 All LJ 1005 : (2000) 40 All Cr C 699 (All)].

What flows from a reading of sections 133 and 135 of the Code of Criminal Procedure, 1973 is that the SDO, is empowered to pass a conditional order in the eventualities mentioned in the said section and direct the taking of corrective steps by the defaulting party. The defaulting party in the said eventuality has two options either to perform thereby complying with the conditional order or appear before the SDO or other Executive Magistrate and show cause against the same.

In the instant case, in view of the substitution of the word “or” by the word “and”, the very essence of the scheme under section 133 has been tinkered with. The SDO in issuing the said Corrigendum,, has therefore, passed an order which militates against the scheme as postulated in the said provision [Rohan Vaman Savaikar v State, 2010 Cr LJ 2719 (2720) (Bom)]. [s 133.39] Limits of order for removal.— The order should direct the removal of the nuisance only and not the whole thing, e.g., removal of nuisance in burning Ghat but not the Ghat itself [Indra, 25 E 425], or removal of an encroachment on road but not the house itself [Bhagat, 21 Cr LJ 116; Jhaulan, 26 Cr LJ 731], or forbidding the working of engine between 9 p.m. and 5 a.m. and not closing the factory altogether [Rameshwar Narayan Agarwal v Emperor, AIR 1939 Bom 92 :

Page 13 of 14 [s 133] Conditional order for removal of nuisance.— (1939) 40 Cr LJ 444 : 41 Bom LR 84], or preventing use of latrine amounting to a nuisance but not to demolish it [Sri Ram v Emperor, AIR 1935 All 926 : (1936) 37 Cr LJ 347 (2)]. “Remove” does not include restoring status quo [Bhagatram, AIR 1929 All 114 : 116Ind. Cas.21 : (1929) ILR 51All 489].

Order of Magistrate directing demolition of wall/obstruction by taking resort to section 142 without making any enquiry in that regard is not sustainable [Sushil Ranjan Nath v Satyabrata Dey, 2001 Cr LJ 4472 (Gau) : 2001 (2) GLT 221]. [s 133.40] Procedure.— Magistrate may issue a notice to show cause or a conditional order. Before passing conditional order on report of police officer or other information, Magistrate may or may not take evidence [Abdul Shakur Khan v Emperor, AIR 1931 All 257 : 1930 All LJ 1335 : (1931) 32 Cr LJ 565], but it must be taken under section 138 before making the order absolute [Srinath, 24 C 395; Abdul Shakur, sup; Mahabir v Asharfi, AIR 1947 Oudh 65 : (1946) 47 Cr LJ 398 : 223 IC 463; Etraj, 33 Cal WN 201; Abhoy, AIR 1928 Cal 96 : 31 Cal WN 963; Tirkha, 49 A 475; Kalyan Mul Mathur v Emperor, AIR 1936 Pat 577 : (1936) 37 Cr LJ 1159]. If the person appears and shows cause, the Magistrate is required to take evidence as in a summons case [Kalicharan, 65 Cal WN 1244]. The report and information are not evidence against the party [Srinath, sup; Raimohan 44 C 61]. Magistrate cannot cancel conditional order without taking evidence [Ganga Pd., AIR 1929 C 21]. If Magistrate makes inspection under section 310, he cannot base his judgment on it but must take evidence [Emperor v Rajjoo Lal, AIR 1934 All 325 : (1934) 35 Cr LJ 708 : 1934 All LJ 1179; Ram Chander Lal v Emperor, AIR 1934 Pat 316 (1) : (1934) 35 Cr LJ 1020 : 15 Pat LT 288].

On appearance of the person, Magistrate must before enquiry (under section 138) ask him whether he denies the existence of any public right (section 137). If he denies, it is for him to adduce evidence in support of it and a finding is to be recorded whether reliable evidence has been produced or not. If there is no denial, or if there is no reliable evidence in support of denial, the Magistrate proceeds to make enquiry and the prosecution is to lead evidence [Emperor v Raghunandan Saran Das, AIR 1936 Pat 639 : (1937) 38 Cr LJ 29 : 17 Pat LT 791; Musammat Chunni v Emperor, AIR 1938 All 653 : (1939) 40 Cr LJ 143 : 1938 All LJ 1013; Pt. Pratap Narain v Pt. Ram Kumar, AIR 1941 Oudh 271 : (1941) 42 Cr LJ 241; Neemani, 5 DLR (P) 134; see Narsingh Narain v Rameshwar Singh, AIR 1936 Pat 360 : (1936) 37 Cr LJ 846 (1) : 17 Pat LT 399]. See further notes to section 137.

If the Magistrate is satisfied that there is no need to proceed further, the proceedings can be dropped at any stage [Ramu v Murli Das, AIR 1943 All 19 : (1943) 44 Cr LJ 205 : ILR (1943) All 22 : 1942 All LJ 584; Issur, 8 C 883; Jogendra, 14 Cal WN 199n]. If sufficient cause is shown, proceedings may be revived [Ishan, 5 Cal WN 173]. There is no provision for revival of proceedings which has been dropped [Rambaboo, 1978 All Cr R 215]. The Magistrate may draw up fresh proceedings on proper materials [Satish, 34 Cal WN 957 : AIR 1931 Cal 2 : 128 Ind. Cas. 810], but not when proceedings have been stayed under section 137 Raghubans Das v Emperor, AIR 1948 Pat 15 : (1947) 48 Cr LJ 360 : 229 IC 285]. [s 133.41] Costs.— In the old case, there was no provision for payment of costs by any party [Rahimaddi, AIR 1925 Cal 399]. See new section 140 (Costs of local investigations, expert, etc.].

There can be no arbitration even if the parties agree [Rajbalam, 2 PTL 6; Mahasin, 2 DR 133]. Proceedings under chapter 10-D not being criminal, sections. 309 and 317 do not apply to them [Lalit Mohan Deb Burman v Hariday Ranjan Deb Burman, AIR 1958 Tri 17 : 1958 Cr LJ 695]. In quasi-criminal proceedings as that of section 133 the court has inherent power to dispense with personal attendance of the person [Sushil Chandra v Tushar Kanti, AIR 1955 NUC 1060 : ILR (1951) 1 Cal 126]. [s 133.42] Death of party.— An order under the section binds the particular individual ordered and no one else [Ram Sahai v Uttama Debi, AIR 1935 All 79 : (1935) 36 Cr LJ 144 : 1935 All LJ 18; Jugal, 20 Cr LJ 445]. So, on his death, the order ceases to have any effect and if necessary, fresh proceedings should be taken against his successors [Jugal, sup]. [s 133.43] Cases not within the section.—

Page 14 of 14 [s 133] Conditional order for removal of nuisance.— Obstruction to private path [Bhaiya, A 1925 O 130] or private channel [Jagannath, 36 A 209; see BSCorbet v Sonaulla Basunia, AIR 1933 Cal 150 : (1933) 34 Cr LJ 679 (1)]; order directing a person not to cultivate his land [Dhan, 1 ALJ 615]; khatal built on private property close to a public road resulting in inconvenience and affecting sanitation [Sumer Singh v Sanitary Inspector of Bauria, AIR 1955 Cal 554 : 1955 Cr LJ 1355 : 59 Cal WN 870 : AIR 1955 C 554]; nuisance on private land [Shri Ram v Emperor, AIR 1935 All 926 : (1936) 37 Cr LJ 347 (2)]; parking buses on private land [Re : Sadagopa Naidu, AIR 1949 Mad 75 : (1948) 49 Cr LJ 666 : 1948 (1) Mad LJ 414 : 61 Mad LW 405 (2)]. In the case of boundary dispute, encroachment does not amount to unlawful obstruction [Villagers etc., 61 Cal WN 387]. Auctioning of vegetables in a private house in a city and the parking of the vegetable carts on the public road outside the building must necessarily cause some amount of inconvenience to those who pass the public road, and the auctioning must also cause some amount of noise or discomfort to people in the locality, but it does not justify action under section 133 [Ram Autar v State of UP, AIR 1962 SC 1794 : 1963 (1) Cr LJ 14 : (1963) 3 SCR 9]. A finding by the Magistrate that the obstruction was causing nothing more than inconvenience is not enough for an order under section 133 [Bejoy Krishna Goswami v Provash Ranjan Goswami, AIR 1959 Cal 599 : 1959 Cr LJ 1160]. [s 133.44] Cases within the section.— Noise injurious to the physical comfort of a community [Krishna, 21 Cr LJ 669; Rameshwar Narayan Agarwal v Emperor, AIR 1939 Bom 92 : (1939) 40 Cr LJ 444 : 41 Bom LR 84; Raghunandan Prasad v Emperor, AIR 1931 All 433 : (1932) 33 Cr LJ 331 : 1931 All LJ 912; Munnalal Brahmin v Shridhar Rao Lele, AIR 1934 Nag 193 : (1935) 36 Cr LJ 591 (1) : 17 Nag LJ 54]; privy near a public place or way allowed to remain in a condition injurious to health [Balaji, 4 Bom LR 882; Gauri, A 1928 A 128; Sri Ram v Emperor, AIR 1935 All 926 : (1936) 37 Cr LJ 347 (2); see Mahabir, A 1936 P 409]; uncovered bones in a mill emitting noxious smell [Berkefeld, 34 C 73]; discharge into river of effluent from a factory injurious to health [Deshi Sugar, etc. A 1926 P 506]: keeping a gaming house drawing disorderly crowds causing annoyance [Thandavarayudu, 14 M 364]; obstruction to public way by act done on private land [Soda Sheo Chintaman v Chintam, AIR 1945 Nag 226 : (1946) 47 Cr LJ 217 : 1945 Nag LJ 43]; shops walled from outside [Annamalai Reddi v Abdul Sathar Sahib, AIR 1953 Mad 674 : 1953 Cr LJ 1201 : 1952 Mad WN 24 : 1953 (1) Mad LJ 160]. [s 133.45] Sub-section (2).— Though the Criminal Court’s order cannot be called in question in a Civil Court, it is not a conclusive determination of the question of title. The aggrieved party may bring a suit against any one of the public claiming to use the land as public [Chuni Lall, 15 C 460, FB; Secretary of State, 17 B 293]. The Civil Court’s jurisdiction to try whether a land is private property or public place is not affected [Muttyram, 6 C 291]. What cannot be questioned under sub-section (2) is the conditional order and not the absolute order [Dullichand, AIR 1929 A 833 : 51 A 1025]. [s 133.46] Revision.— The High Court or Sessions Judge will interfere in revision when there is no reasonable evidence [Abdul Wahid, AIR 45 A 656] or when substantial injustice has been done [Ram Dayal Misra v Jagdamba Debi, AIR 1942 All 443 : (1943) 44 Cr LJ 76 : 1942 All LJ 558]. (see sections. 399 and 401). End of Document

[s 134] Service or notification of order.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER X MAINTENANCE OF PUBLIC ORDER AND TRANQUILLITY > B.—Public Nuisances

The Code of Criminal Procedure, 1973 CHAPTER X MAINTENANCE OF PUBLIC ORDER AND TRANQUILLITY Provisions of four chapters of the old Code, namely chapters 9, 10, 11 and 12 have been incorporated in this one chapter 10 divided into four parts—Pt A (Unlawful Assemblies—sections 129 to 132), Pt B (Public Nuisance— sections 133 to 143), Pt C (Urgent cases of Nuisance and Apprehended Danger—section 144), Pt D (Disputes as to Immovable Property—sections 145 to 148).

B.—Public Nuisances [s 134] Service or notification of order.— (1) The order shall, if practicable, be served on the person against whom it is made, in the manner herein provided for service of a summons. (2) If such order cannot be so served, it shall be notified by proclamation, published in such manner as the State Government may, by rules, direct, and a copy thereof shall be stuck up at such place or places as may be fittest for conveying the information to such person. [s 134.1] Changes.— Section 134 corresponds to the old section 134 verbatim. [s 134.2] Scope and application of section 134.— “Service of summons” (sections 62–69) may be on party or agent [Rambilas, 30 A 364]. If service under sections 62–64 cannot be effected by due diligence, it may then be affixed to the door of the house [Benimadhab, AIR 1926 C 1208 : 31 Cal WN 148; Narayan, 12 M 475]. Sub-section (2) can be resorted to only when the order cannot be served in the manner provided for summons [Abdul Jabbar Sarkar v Emperor, AIR 1935 Cal 251 : (1935) 36 Cr LJ 736 : 39 Cal WN 141 : 60 Cal LJ 474], but where there is no evidence that personal service or service on an adult member of the family could not be effected, service by affixation is no service at all [Kalipada Das v The State, AIR 1951 Cal 207 : (1950) 51 Cr LJ 1575]. Irregularity in service does not go to the validity of the order when it comes to the actual knowledge of the person affected [Parbutty, 16 C 9; Abu Hussain Shaikh v Emperor, AIR 1940 Cal 358 : 44 Cal WN 641 : (1940) 41 Cr LJ 864; Re : The Matter of : Madan Kishore, AIR 1940 Pat 446 : (1940) 41 Cr LJ 414 : 21 Pat LT 231; Rambilas, sup; Khusira, 24 Cr LJ 457].

“Person” includes any company, association or body of persons, e.g. all the male adult residents in a certain mohalla [Khusiram, AIR 1923 Lah 525]. [s 134.3] Sub-section (2).— Rule of Government of Bengal (Notification dated 15 March 1883; Cal Gazette of 21 March 1883, p 245) directs

Page 2 of 2 [s 134] Service or notification of order.— publication by beat of drums at the place where the nuisance is situated, when personal service cannot be effected. End of Document

[s 135] Person to whom order is addressed to obey or show cause.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER X MAINTENANCE OF PUBLIC ORDER AND TRANQUILLITY > B.—Public Nuisances

The Code of Criminal Procedure, 1973 CHAPTER X MAINTENANCE OF PUBLIC ORDER AND TRANQUILLITY Provisions of four chapters of the old Code, namely chapters 9, 10, 11 and 12 have been incorporated in this one chapter 10 divided into four parts—Pt A (Unlawful Assemblies—sections 129 to 132), Pt B (Public Nuisance— sections 133 to 143), Pt C (Urgent cases of Nuisance and Apprehended Danger—section 144), Pt D (Disputes as to Immovable Property—sections 145 to 148).

B.—Public Nuisances [s 135] Person to whom order is addressed to obey or show cause.— The person against whom such order is made shall— (a) perform, within the time and in the manner specified in the order, the act directed thereby; or (b) appear in accordance with such order and show cause against the same. [s 135.1] Changes.— Section 135 corresponds to the old section 135 with omission of the words in clause (b) after “same” consequential on the abolition of jury trial. [s 135.2] Scope and application of section 135.— If the person does not appear, the order is made absolute and he is liable under section 188 of Indian Penal Code, 1860 (section 136). If he appears and shows cause against the order under clause (b), first the Magistrate shall ask him whether the existence of the public right in question is denied (see section 137) and if the answer is in the affirmative, it is for him to adduce evidence. A finding is to be recorded on the point, and if there is no reliable evidence in support of the right, the Magistrateproceeds to make enquiry under section 138 [Emperor v Raghunandan Saran Das, AIR 1936 Pat 639 : (1937) 38 Cr LJ 29; Musammat Chunni v Emperor, AIR 1938 All 653 : (1939) 40 Cr LJ 143 : 1938 All LJ 1013; Pratap Narain v Ram Kumar, AIR 1941 Oudh 271 : (1941) 42 Cr LJ 241].

If there is no claim of private right or that question has been decided against the person, the Magistrate proceeds to enquire and take evidence under section 138. As the order was made ex parte, sufficient opportunity should be given to meet the charge [Raimohan, 44 Cal 61; Padmanathamma, A 1947 Mad 243].

Burden of proof is not on the respondent, he has only to show cause in respect of matters complained of [Rameshwar Narayan Agarwal v Emperor, AIR 1939 Bom 92 : 41 Bom LR 84 : (1939) 40 Cr LJ 444].

What flows from a reading of sections 133 and 135 of the Code is that the SDO is empowered to pass a

Page 2 of 2 [s 135] Person to whom order is addressed to obey or show cause.— conditional order in the eventualities mentioned in the said section and direct the taking of corrective steps by the defaulting party. The defaulting party in the said eventuality has two options either to comply with the conditional order or appear before the SDO or other Executive Magistrate and show cause against the same [Rohan Vaman Savaiker v State, 2010 Cr LJ 2719 (Bom)]. [s 135.3] Review.— Where proceedings are dropped, the order cannot be reviewed except to correct a clerical or arithmetical mistakes [Sashibhusan Tripathy v State, (1985) Cr LJ 227 : 1984 (2) Crimes 348 : (1984) 58 Cut LT 179 : 1984 (1) Ori LR 724 (Orissa)]. End of Document

[s 136] Consequences of his failing to do so.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER X MAINTENANCE OF PUBLIC ORDER AND TRANQUILLITY > B.—Public Nuisances

The Code of Criminal Procedure, 1973 CHAPTER X MAINTENANCE OF PUBLIC ORDER AND TRANQUILLITY Provisions of four chapters of the old Code, namely chapters 9, 10, 11 and 12 have been incorporated in this one chapter 10 divided into four parts—Pt A (Unlawful Assemblies—sections 129 to 132), Pt B (Public Nuisance— sections 133 to 143), Pt C (Urgent cases of Nuisance and Apprehended Danger—section 144), Pt D (Disputes as to Immovable Property—sections 145 to 148).

B.—Public Nuisances [s 136] Consequences of his failing to do so.— If such person does not perform such act or appear and show cause, he shall be liable to the penalty prescribed in that behalf in section 188 of the Indian Penal Code (45 of 1860), and the order shall be made absolute. [s 136.1] Changes.— Section 136 corresponds to the old section 136 with omission of some words consequential on the abolition of jury trial. [s 136.2] Scope and application of section 136.— The section is stringent, the object being promptly to ensure public safety [Narayana, 12 M 475], and punishment may be given before the order is made absolute [Bishambhar, 13 A 577] without further notice [Alluvala, 31 M 280]. Magistrate who can try (section 352). If no appearance is made, order is made absolute (Jassi, AIR 1922 A 335]. Order made absolute under the section cannot be questioned in subsequent proceedings [Nayayana, sup; Bishambhar, sup] unless it is without jurisdiction [Jasodanand, 20 A 501]. The ex parte order absolute may be set aside by the Magistrate, if sufficient reason is shown by the party for nonappearance [Ramsaran, 19 Cr LJ 214]. An order under section 136, making the conditional order absolute without sufficient notice under section 133 (1), is bad in law [Narayan Sahu v SDM, 1986 Cr LJ 102 : (1985) 60 Cut LT 201 (Ori)].

End of Document

[s 137] Procedure where existence of public right is denied.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER X MAINTENANCE OF PUBLIC ORDER AND TRANQUILLITY > B.—Public Nuisances

The Code of Criminal Procedure, 1973 CHAPTER X MAINTENANCE OF PUBLIC ORDER AND TRANQUILLITY Provisions of four chapters of the old Code, namely chapters 9, 10, 11 and 12 have been incorporated in this one chapter 10 divided into four parts—Pt A (Unlawful Assemblies—sections 129 to 132), Pt B (Public Nuisance— sections 133 to 143), Pt C (Urgent cases of Nuisance and Apprehended Danger—section 144), Pt D (Disputes as to Immovable Property—sections 145 to 148).

B.—Public Nuisances [s 137] Procedure where existence of public right is denied.— (1) Where an order is made under section 133 for the purpose of preventing obstruction, nuisance or danger to the public in the use of any way river, channel or place, the Magistrate shall, on the appearance before him of the person against whom the order was made, question him as to whether he denies the existence of any public right in respect of the way, river, channel or place, and if he does so, the Magistrate shall, before proceeding under section 138, inquire into the matter. (2) If in such inquiry the Magistrate finds that there is any reliable evidence in support of such denial, he shall stay the proceedings until the matter of the existence of such right has been decided by a competent court; and if he finds that there is no such evidence, he shall proceed as laid down in section 138. (3) A person who has, on being questioned by the Magistrate under sub-section (1), failed to deny the existence of a public right of the nature therein referred to, or who, having made such denial, has failed to adduce reliable evidence in support thereof, shall not in the subsequent proceedings be permitted to make any such denial. [s 137.1] Changes.— Section 137 corresponds to the old section 139A with omission of some words consequential on the abolition of jury trial. [s 137.2] Scope and application of section 137.— This section in effect provides that the Magistrate must stay proceedings, if he is satisfied that there is a bona fide dispute as to private right. The object of the section is to prevent the Magistrate arrogating to himself the functions of a Civil Court and instituting an elaborate enquiry with regard to the rights of the parties [Satish Chandra Sen v Krishan Kumar Das, AIR 1931 Cal 2 : (1931) 32 Cr LJ 189 : 34 Cal WN 957].

Section 137 of Code of Criminal Procedure, 1973, coming under chapter X of the Code, which deals with maintenance of public order and tranquility, and the public nuisance is covered by the second part of the chapter. As per the scheme of the Code, whenever there is a threat to the general public, either with respect to the maintenance of public order and tranquility or public nuisance or dispute with immovable property, which

Page 2 of 6 [s 137] Procedure where existence of public right is denied.— are likely to affect public tranquility and law and order situation, with the intention to abate the same, wide powers are given to public administrative authorities instead of relegating the aggrieved persons to approach the Civil Courts because such proceedings are time consuming and the public order or maintenance cannot be protected in a timely manner and the public nuisance cannot be abated instantaneously and proper and urgent relief cannot be given to the general public. Therefore, as and when a complaint is received by the authorities, they are bound to abate the public nuisance instantaneously including the obstruction against the right to public pathway of the general public. Thus, while exercising such emergent powers, jurisdiction of such public administrative authorities cannot be ousted unless there is concrete, satisfactory and convincing evidence in support of the denial of public right. Strict interpretation of the term “reliable evidence” is required in view of the above legislative intent [Omanakutty Amma v Sajeev Kumar, 2011 Cr LJ 4140 : ILR 2011 (1) Kerala 474 : 2011 (1) KLJ 108 (Ker)].

The section requires that when a person is served with an order under section 133, it appears that:—

(1) The Magistrate shall ask him whether he denies the existence of the public right in question. (2) In case of denial, it is obligatory on the Magistrate, first of all, to conduct an inquiry into the matter under section 137 before holding the inquiry referred to in section 138. (3) At this inquiry, the person shall produce reliable evidence (which must of course be legal evidence) in support of his denial. (4) If the Magistrate finds that there is some reliable evidence (not that he will have to decide the question on such evidence) to support the denial, his jurisdiction is ousted and proceedings shall be stayed until the matter has been decided by a Civil Court. (5) If the person does not raise any question of private right or if (when raised) there is no reliable evidence in support of such right, the Magistrate shall proceed to enquire under section 138 and pass the final order. It is illegal to pass final order merely upon an inquiry under section 137 without thereafter proceedings under section 138 [Lal Behari De v Jatindra Chandra De, AIR 1949 Cal 5752 Cal WN 12 : 52 Cal WN 12 : (1948) 49 Cr LJ 608 ; Bejay Krishan Goswami v Provash Ranjan Goswami, AIR 1959 Cal 599 : 1959 Cr LJ 1160].

Where the Magistrate does not question the opposite party about the existence of public right, order for removal of alleged obstruction is illegal [Manohar Lal Dutt v State of WB, 2003 Cr LJ 2634 (2638) (Cal) : 2003 Cal CrLR 613; Abdul Aziz Mir v Javard Ahmad Khan, 2003 Cr LJ 2942 (2943) (J&K)].

If existence of public right is not denied, the section hardly applies [Rajani, 33 Cal WN 748; Ram Asray v State, AIR 1954 All 247 : 1954 Cr LJ 498 : 1954 All LJ 69 : 1953 All WR 715].

The section is imperative [Matabbar, 57 C 368; Mannalal, AIR 1926 A 390; Gaya Datt Patha v Narabdeshwar Dubey, AIR 1970 Pat 319 : 1970 Cr LJ 1249] and where the Magistrate proceeds to enquire under section 138 without putting the question, his final order is liable to be set aside [Raghunath, AIR 1925 A 311; Raghunandan v Shew Nandan, AIR 1932 All 366 : 33 Cr LJ 618 : 1932 All LJ 339; Mannalal, sup; Bansidhar Marwari v PWD Bihar, AIR 1943 Pat 3 : (1942) 43 Cr LJ 923; Govinda Gaundan v Ayi Goundan, AIR 1939 Mad 465 : (1939) 40 Cr LJ 813 : 1939 (1) Mad LJ 649; Pratap Narain v Ram Kumar, AIR 1941 Oudh 271 : (1941) 42 Cr LJ 241; Nirsu Raut v Somar Nonia, (1941) 42 Cr LJ 413 : 21 Pat LT 852]. Section 137 must be observed—failing which subsequent proceedings will be null and void [Sadasheo Chintaman Tamne v Chintaman, AIR 1945 Nag 226 : (1946) 47 Cr LJ 217 : 1945 Nag LJ 43; Jaswant Singh v Jagir Singh, AIR 1972 P&H 192 : 1972 Cr LJ 792 : 74 Punj LR 90]. But if the case be such that had the question been put, the answer must necessarily have been a denial of public right, it is merely an irregularity [Bansidhar, sup]. Omission to mention does not vitiate proceedings if no prejudice is caused [Gulab Singh v State, AIR 1960 All 436 : 1960 Cr LJ 879 : 1960 All LJ 64 : 1960 All WR 44]. When the party has put in a statement denying the existence of public right, it is unnecessary to ask him [Ram Kishore Prasad v Emperor, AIR 1945 Pat 306; Sushil Chandra v Tushar Kanti, AIR 1955 NUC 1060 : ILR (1951) 1 Cal 126]. So also, if the public character of the river is admitted in the written statement, it

Page 3 of 6 [s 137] Procedure where existence of public right is denied.— may be a superfluity to ask that question again [Rajani, 33 Cal WN 748]. Even if it be an irregularity in such cases in not asking it, it is curable [Rajni, sup; Sada Sheo Chintaman Tamne v Chintaman, AIR 1945 Nag 226 : (1946) 47 Cr LJ 217 : 1945 Nag LJ 43]. It is a doubtful if there can be any waiver [Mahadeo, A 1930 P 199]. In the case of a joint enquiry under sections 137 and 138, the irregularity may be cured, if there is no prejudice to any party [Kishorilal v State, AIR 1960 All 244 : 1960 Cr LJ 450; see Sukh Ram Kalu Ram v Manohar Lal Ramsaran Dass, AIR 1960 Punj 377 : 1960 Cr LJ 993 : 62 Punj LR 89].

It was held in some cases that the court’s jurisdiction is not ousted because of the setting up of a bona fide claim for title [Ramsagar, 26 Cal WN 442, FB : 49 C 682; Abdul Wahid, 45 A 656; Manna Tiwari, 50 A 861; Contra; Lakshman, 22 Cr LJ (C) 351; Chandrika, AIR 1924 P 418 : 73 Ind. Cas. 802; Thakur Sao, 4 P 783]. Section 137 does not refer to bona fide or good faith. It only says that if the Magistrate finds there is “reliable evidence” in support of the claim he shall stay hands down (see post, “Reliable evidences”). But it would seem that reliable evidence in support of the denial of public right would in effect amount to putting forward a bona fide claim of title. In any case, to draw a distinction now between a bona fide claim and reliable evidence in support of the claim would be academic.

When on enquiry the Magistrate finds that there is reliable evidence in support of the denial of any public right, he must stay proceedings until the matter is decided by a Civil Court [Atul Krishna Sahoo v The State, AIR 1966 Cal 215 : 1966 Cr LJ 528]. Once reliable evidence in support of the denial of the public right is produced, the party denying the existence of the public right has a right to have the matter decided by the competent Civil Court and not to leave it to the decision of the Magistrate in a summary proceedings [Chuni Lal Mansa Ram v Ratti Ram Shiv Narain, AIR 1965 Punj 340 : 1965 (2) Cr LJ 240 : 66 Punj LR 466]. The section does not say anything as to who is to have the matter decided [Ch Resal, AIR 1929 All 709 : (1929) ILR 51 All 890]. It has been held that the Magistrate cannot compel either party to go to the Civil Court [Razan, 52 A 592; Chakrapan 52 A 91; Manohar, 30 Cr LJ 670; Ram Sahai v Uttama Debi, AIR 1935 All 79 : (1935) 36 Cr LJ : 1935 All LJ 18; Re : Bihari, AIR 1938 Nag 512 : (1938) 39 Cr LJ 791 (1) 1938 Nag LJ 295; Harichand, AIR 1927 L 277]. The party moving under section 133 or somebody interested in asserting such right is to go to the Civil Court, the Magistrate cannot direct the second party to go there and cannot proceed with the case on his failure to do so within a reasonable time [Kusha Mondal v Emperor, AIR 1934 Cal 545 : (1934) 35 Cr LJ 1374 : 38 Cal WN 391 : 59 Cal LJ 290; Govinda Goundan v Ayi Goundan., AIR 1939 Mad 465 : (1939) 40 Cr LJ 813 : 1939 (1) Mad LJ 649; see however Ramsagar, 26 Cal WN 442, FB; Lakshman, 22 Cr LJ (C) 351 (decisions under the old law); Debendra, AIR 1925 Cal 268 : 81 Ind. Cas. 904]. When proceedings are thus stayed, Magistrate has no jurisdiction to reopen and draw up fresh proceedings in respect of the same matter [Raghubans Das v Emperor, AIR 1948 Pat 15 : (1947) 48 Cr LJ 360 : 229 IC 285].

“Magistrate means the Magistrate before whom the person was ordered to appear under section 133(1)” [Ata Muhammad v Abdul Rahman, AIR 1937 Lah 676 : (1937) 38 Cr LJ 1056 : 39 Punj LR 484]. It is illegal to send the matter to another Magistrate for enquiry and report [Masaddar, 34 Cal WN 228; 57 C 666; Pran Krishna Das v Shyam Sundar Sarkar, AIR 1949 Cal 637 : (1950) 51 Cr LJ 205 : 54 Cal WN 228]. See”Magistrate empowered” under section 133.

After conclusion of an inquiry under section 137, the proceedings cannot be transferred to another Magistrate [Jhalu Charan Das v Bhanu Chandra Das, AIR 1956 Cal 220 : 1956 Cr LJ 614].

“Any public right” must be construed with reference to the public right which is said to have been interfered with and not any and every public right having no bearing on the matter in issue [Sada Sheo Chintaman Tamne v Chintaman, AIR 1945 Nag 226 : (1946) 47 Cr LJ 217 : 1945 Nag LJ 43; Mohd. Ayub v State, AIR 1952 All 215 : 1952 Cr LJ 407 : ILR (1951) 2 All 609]. [s 137.3] Scope of inquiry and procedure.— On denial of existence of public right, the Magistrate must hold a regular enquiry and cannot decide the matter simply by hearing both parties and inspecting the spot [Md. Aziz v State, 1979 Cr LJ (NOC) 175 : 1979 All Cr R 257 : 1979 All WC 49 (All)]. The Magistrate must first ask the second party whether the existence of the public right in question is denied, and if answered affirmatively, he has to enquire and take evidence on the point. If he is of opinion that the evidence in support of the denial is reliable, his jurisdiction is ousted. He must then stay

Page 4 of 6 [s 137] Procedure where existence of public right is denied.— and not drop proceedings [Sushil Chandra v Tushar Kanti, AIR 1955 NUC 1060 : ILR 1951 (1) Cal 126] and refer the parties to the Civil Court [Kalicharan, 65 Cal WN 1244]. If, on the other hand, he finds that there is no “reliable evidence”, of the claim made, he shall proceed to enquire under section 138 [see Sukh Lal Gope v Satyadeo Prasad, AIR 1951 Pat 311; Emperor v Raghunandan Saran Das, AIR 1936 Pat 639 : (1937) 38 Cr LJ 29 : 17 Pat LT 791; Harnandan Lal v Rampalak Mahato, AIR 1939 Pat 460 : (1939) 40 Cr LJ 837 : ILR 18 Pat 76; Satish Chandra Sen v Krishna Kumar Das, AIR 1931 Cal 2 : (1931) 32 Cr LJ 189 : 34 Cal WN 957; Shk. Sadir, 29 Cal WN 649; Etraj, 33 Cal WN 201; Uma Kanta Chatterjee v Kalipada Chowdhary, AIR 1933 Cal 790 : 37 Cal WN 823 : (1934) 35 Cr LJ 89; Kishorimohan Pramanik v Krishnabihari Basak, AIR 1931 Cal 527 : ILR 58 Cal 461 : (1931) 32 Cr LJ 1187; Rahamaddy, 30 Cal WN 648; Musammat Ram Kali v Kripa Shankar, AIR 1933 All 615 : ILR 55 All 866 : (1934) 35 Cr LJ 4; Bansidhar Marwari v PWD Bihar, AIR 1943 Pat 3 : (1942) 43 Cr LJ 923; Raghnath, AIR 1925 A 311; Ude Singh, AIR 1928 L 856; Nirsu Pande v Emperor, AIR 1934 Pat 145 (1) : (1934) 35 Cr LJ 488 : 14 Pat LT 778; Mannalal, AIR 1926 A 390; Thakur Sao, 4 P 783, Ata Mohammad v Abdul Rahman, AIR 1937 Lah 676 : (1937) 38 Cr LJ 1056 : 39 Punj LR 484; Manohar Lal v Emperor, AIR 1931 Lah 62 : (1931) 32 Cr LJ 621 : 32 Punj LR 11; Nanumal v Emperor, AIR 1939 Lah 452 : (1939) 40 Cr LJ 933 : 41 Punj LR 515; Govinda Gaundan v Ayi Goundan, AIR 1939 Mad 465 : (1939) 40 Cr LJ 813 : 11939 (1) Mad LJ 649; Emperor v Mul Chand, AIR 1931 Oudh 397 : (1931) 32 Cr LJ 1165; Chhedi Lal v Emperor, AIR 1939 All 116 : (1939) 30 Cr LJ 286 : 1938 All LJ 1145; Pt. Pratap Narain v Pt. Ram Kumar, AIR 1941 Oudh 271 : (1941) 42 Cr LJ 241; Nirsu Raut v Somar Nonia, (1941) 42 Cr LJ 413 : 21 Pat LT 852; Musanmat Chunni v Emperor, AIR 1938 All 653 : (1939) 40 Cr LJ 143 : 1938 All LJ 1013; Mahabir, AIR 1933 N 267; Gangadhar Marwari v Emperor, AIR 1936 All 150 : (1936) 37 Cr LJ 422 : 1936 All LJ 116; Chhangu v Surajpal, AIR 1948 Oudh 19 : (1947) 48 Cr LJ 666; Rajaram Singh v Keshari Rai, AIR 1942 Pat 468 : (1942) 43 Cr LJ 423; Abdul Sayeed v Damodar Prasad Tewari, AIR 1935 Cr LJ 138 : 16 Pat LT 218 : (1935) 36 Cr LJ 588]. The Magistrate cannot refuse to enquire because the denial was made at a late stage, as it is his duty to ask the question first [Shk. Sadir, 29 Cal WN 649 : 26 Cr LJ 1168]. It is however unnecessary to ask the question when the person files a written statement denying the public right [Ram Kripal, AIR 1945 P 309; Sushil Chandra v Tushar Kanti, ILR (1951) 1 Cal 126 : 1955 NUC 1060] or admits the public right [Bansidhar Marwari v PWD Bihar, AIR 1943 Pat 3 : (1942) 43 Cr LJ 923]. If the existence of a public right is denied, the Magistrate must hold an inquiry under sections 137–138. The provision is mandatory. The Magistrate cannot act on a compromise between the parties [Surendra Singh v Jaibir Singh, 1985 Cr LJ 1525 (All) : 1958 All WC 354 : 1958 (1) Crimes 661].

Where the existence of public path was not denied by the opposite party, it was not justified for the Magistrate to drop the proceedings on the mere report of the circle officer without recording the evidence in the case [Khirod Mohan Das v The Officer-in-Charge, 342 Transit Camp BRTF (GRPF), 2008 Cr LJ (NOC) 497 (Gau) : 2008 (62) All Ind Cas 445].

The Magistrate’s duty is to see whether there is any “reliable evidence” on the claim put forward and not to decide on the evidence whether a public right exists or not. When he finds that there is some reliable evidence, his jurisdiction ceases and it then becomes a matter for the Civil Court [Muni Lal Agarwala v The Public of Bhagalpur, AIR 1941 Pat 38 : (1941) 42 Cr LJ 34 : 21 Pat LT 843; Matabbar, 57 C 368; Ude Singh, AIR 1928 L 856; Nirsu Raut v Somar Nonia, (1941) 42 Cr LJ 413 : 21 Pat LT 852; Sohan Lal v District Board, Lucknow, AIR 1932 Oudh 120 : (1932) 33 Cr LJ 384; Chhedi Lal v Emperor, AIR 1939 All 116 : (1941) 40 Cr LJ 286 : 1938 All LJ 1145; Babu Bishnath Singh v Khurshed Ahmad, AIR 1932 Oudh 118 : (1939) 33 Cr LJ 809; Rajaram Singh v Keshari Rai, AIR 1942 Pat 468 : (1942) 43 Cr LJ 423; Rozan, 52 A 592 (Ori); Manohar, 30 Cr LJ 670; Rukmini Raman Singh v Herdeo Mandal, AIR 1970 Pat 207 : 1970 Cr LJ 833; Purnamasi Kar v Purandar Kar, 1978 Cr LJ 1052 : (1978) 45 Cut LT 288 : 1978 Cut LR (Cri) 1 (Ori)]. It is desirable that the Magistrate should record a definite finding under section 137 (2) as to the reliability or otherwise of the evidence in support of denial or existence of public right [Bardeshwari Prasad Bhattacharjee v Rabi Nandan Saha, AIR 1956 Cal 24 : 60 Cal WN 10 : 1956 Cr LJ 212; Gangadhar Marwari v Emperor, AIR 1936 All 150 : (1936) 37 Cr LJ 422 : 1936 All LJ 116; Mahabir, AIR 1933 N 267]. When he does not come to a finding, he does not follow the correct course [Dhananjoy, AIR 1930 Cal 144 : 124 Ind. Cas. 832].

It has been held that the question whether the claim is bona fide or not or a mere pretence is not of vital importance. What the court has to consider is whether there is reliable evidence in support of it [Kusha Mondal v Emperor, AIR 1934 Cal 545 : 38 Cal WN 391 : (1934) 35 Cr LJ 1374; Manohar, 30 Cr LJ 60 : 1929 ALJ 385; Raghunandan v Shew Nandan, AIR 1932 All 366 : (1932) 33 Cr LJ 618 : 1932 All LJ 339]. It has, however, been held in some jurisdictions that if the Magistrate finds that the claim is not bona fide, but a mere pretence to oust his jurisdiction, he will negate it and proceed under section 138 [Mababir, AIR 1933 Nag 267; Sadasheo,

Page 5 of 6 [s 137] Procedure where existence of public right is denied.— AIR 1915 Nag 226; Thakur Sao, AIR 1926 Pat 170; Annamalai Reddi v Abdul Sathar Sahib, AIR 1953 Mad 674 : 1953 Cr LJ 1201 : 1953 (1) Mad LJ 160 : 1952 Mad WN 24].

The enquiry need not be elaborate. The Magistrate has only to see whether some reliable evidence has been produced in support of the claim and all the witnesses need not be examined [Satish Chandra Sen v Krishna Kumar Das, AIR 1931 Cal 2 : (1931) 32 Cr LJ 189 : 34 Cal WN 957]. He is not to make up his mind finally as to whether the evidence establishes the denial or not of the pubic right [Gati Krishan De v Govinda Mandal, AIR 1955 NUC 568 (Cal)]. He is merely to satisfy himself that there is or is not some prima facie reliable evidence to support the denial [Musammat Chunni v Emperor, AIR 1938 All 653 : (1939) 40 Cr LJ 143 : 1938 All LJ 1013; Shukh Lal Gope v Satyadeo Prasad, AIR 1951 Pat 311 : 1980 All Cr C 217 : 1980 All Cr R 218; Darsan Ram v State, AIR 1959 Pat 81 : 1959 Cr LJ 230 : 1958 BLJR 454; Amar Singh v State of UP, 1980 Cr LJ 1350 (All)], or some reliable evidence which tends prima facie to support the existence of the private right claimed [Mahabi, A 1953 N 267; Muhammad Khalil v Emperor, AIR 1936 All 356 : ILR 58 All 739 : (1936) 37 Cr LJ 343], or that the denial of the public right is frivolous [Md. Khalil, sup; Emperor v Batuk, AIR 1936 All 142 : (1936) 3 Cr LJ 365 : 1936 All LJ 76; Janardan Sarup v Emperor, AIR 1937 All 12 : (1937) 38 Cr LJ 200 : 1936 All LJ 1285]. The witnesses may be allowed to be cross-examined but it is not intended that the complainant should be required to adduce evidence in contradiction [Kishori Mohan Pramanik v Krishnabihari Basak, AIR 1931 Cal 527 : (1931) 32 Cr LJ 1187 : ILR 58 Cal 461; Sushil Chandra v Tushar Kanti, AIR 1955 NUC 1060; (1951) 1 Cal 126; Chunni v Emperor, AIR 1938 All 653 : 1938 All LJ 1013 : (1939) 40 Cr LJ 143; Sukh Ram Kalu Ram v Manohar Lal Ramsaran Dass, AIR 1960 Punj 377 : 1960 Cr LJ 993 : 62 Punj LR 89]. It is on the evidence of the second party that the matter is to be decided [Govinda Goundan v Ayi Goundan, AIR 1939 Mad 465 : (1939) 40 Cr LJ 813 : 49 Mad LW 476]. It should be an ex parte summary enquiry and evidence of both parties need not be taken. Where after taking evidence of both parties the Magistrate decides if any party has succeeded in establishing his claim, the order is wholly wrong [Darsan Ram v State, AIR 1959 Pat 81 : 1959 Cr LJ 230 : 1958 BLJR 454]. The Magistrate may himself call for such evidence as may be necessary [Bodha, sup; Pratap Narain v Ram Kumar, AIR 1941 Oudh 271 : (1941) 42 Cr LJ 241]. [s 137.4] “Reliable evidence”.— Means evidence on which a competent court can place reliance. It does not mean evidence which definitely establishes the right claimed [Janardan Sarup v Emperor, AIR 1937 All 12 : (1937) 38 Cr LJ 200 : 1936 All LJ 1285; Chhedi Lal v Emperor, AIR 1939 All 116 : (1939) 40 Cr LJ 286 : 1938 All LJ 1145; Chunni v Emperor, AIR 1938 All 653 : 1938 All LJ 1013 : (1939) 40 Cr LJ 143; Purnamasi Kar v Purandar Kar, 1978 Cr LJ 1052 : (1978) 45 Cut LT 288 : 1978 Cut LR (Cri) 1 (Ori)]. The section says reliable evidence and not proved [Thakur Sao, 4 P 783; Satish Chandra Sen v Krishna Kumar Das, AIR 1931 Cal 2 : (1931) 32 Cr LJ 189 : 34 Cal WN 957; Atul, sup]. Reliable evidence must of course be legal evidence [Thakur Sao, sup; Kishori Mohan Pramanik v Krishnabihari Basak, AIR 1931 Cal 527 : (1931) 32 Cr LJ 1187 : ILR 58 Cal 461; Sukh Lal Gope v Satyadeo Prasad, AIR 1951 Pat 311]. All he has to satisfy himself is that the evidence does not appear to be unreliable or false [Satish, sup; Mahabir, AIR 1933 N 267; Bodha Rai v Emperor, AIR 1948 All 115 : (1948) 49 Cr LJ 23 : 1947 All LJ 558 : 1947 All WR 334]. Reliable evidence is evidence of reliable persons. The Magistrate is not to weigh the evidence for coming to a conclusion as to whether the alleged right does or does not exist. He should take the evidence as it stands and see whether on the face of it, he could conclude that the evidence was false and therefore unreliable [Harikishan, 1928 L 664 : 29 Cr LJ 254; Jai Ram Singh v Bhuley, AIR 1963 All 27 : 1963 (1) Cr LJ 33 : 1963 All WR 134 : 1963 All Cr R 90; see Thakur Sao, sup; Sada Sheo Chintraman Tamne Chintaman, AIR 1945 Nag 226 : (1946) 47 Cr LJ 217 : ILR (1945) Nag 461; Chunni Emperor, AIR 1938 All 653 : 1938 All LJ 1013 : (1939) 40 Cr LJ 143; Devi Singh v Pratap Singh, 2005 Cr LJ 3792 (3793) (Uttra) : 2006 (1) UC 85 : (2006) 55 All CrC 184]. He has to see whether the evidence considered ex parte is genuine and tends prima facie to support the existence of the right claimed [Mahabir, AIR 1933 N 267]. When a Magistrate in an enqiry under section 137 who was not satisfied that there was any reliable evidence in support of the denial by the second party as to the existence of public right, forthwith passes final order under section 141(1), the order is bad. His duty was to proceed under section 138 [Nitai Chandra Mandal v Pashupati Dey, AIR 1960 Cal 157 : 1960 Cr LJ 334]. The intention is that genuine question of title should not be decided summarily in a Criminal Court but should go to a Civil Court [Manna, 29 Cr LJ 661; Janardan Sarup v Emperor, 1937 (38) Cr LJ 200 : AIR 1937 All 12 : 1936 All LJ 1285Satish Chandra Sen v Krishna Kumar Das, AIR 1931 Cal 2 : 34 Cal WN 957 : (1941) 32 Cr LJ 189].

“Reliable evidence” means the evidence on which it is possible for a competent court to place reliance. The plaint contains only a pleading which cannot be equated to reliable evidence for the purpose of section 137(2) of the Code. Therefore, in support of the denial of public right, there must be some evidence like public records,

Page 6 of 6 [s 137] Procedure where existence of public right is denied.— such as settlement registers, revenue records or survey marks. The plaint produced by the petitioner will not come under any of such category. Considering the responsibility bestowed on the public administrators, a mere production of a copy of a plaint is not sufficient and the same cannot he treated as reliable evidence [Omanakutty Amma v Sajeev Kumar, ILR 2011 (1) Kerala 474 : 2011 (1) Ker LJ 108].

Evidence of long use by the party may be taken as equivalent to reliable evidence of non-existence of public right [Janki, AIR 1928 P 268; Bhajoo Gope v Haji S Gholam Haider, (1941) 42 Cr LJ 401 : 21 Pat LT 1028; see however Harisadhan Chaudhury v Tek Narayan Singh, AIR 1934 Pat 438 : (1935) 36 Cr LJ 367 : 15 Pat LT 386]. No length of user can justify encroachment of a public way [Barkhandi v Emperor, AIR 1931 Lah 159 : (1931) 32 Cr LJ 1234]. Recently published settlement record is reliable evidence [Atul, sup; Amar Singh v State of UP, 1980 Cr LJ 1350 : 1980 All Cr C 217 : 1980 All Cr R 218 (All)].

Section 137(2) applies only where there is no concluded decision by a competent Civil Court, regarding the existence of public right and reliable evidence in support of material produced before the Magistrate [KG Narayanakutty v TE Sekhara Menon, 1985 Cr LJ 570 : 1984 (2) Crimes 982 : 1984 Ker LT 915 : 1984 Mad LJ (Cri) 555 (Ker). [s 137.5] Police report.— A police report cannot be a piece of evidence [Birabandhu Mahapatra v Narendra Nath Mohanty, 2004 (3) Crimes 304 (Ori)]. The Magistrate cannot drag the proceedings on the basis of the report of circle officer made after spot inspection without recording evidence [Baren Bhattacharya v Binod Sarnath, 2005 Cr LJ (NOC) 228 (Gau)]. [s 137.6] Sub-section (3)—Subsequent proceedings.— The prohibition under sub-section (3) is only limited to the adducing of evidence in subsequent proceedings, namely under section 138(1) in support of the denial of public rights. The Magistrate cannot make a conditional order absolute on the ground that the respondent failed to appear and substantiate the denial of public right [Ayisumma, 1977 Ker LT 329 : 1977 Mad LJ (Cr) 237]. [s 137.7] Revision.— High Court or Sessions Judge (see sections 399 and 401) can revise when the order states that there is no reliable evidence [Gati Krishna De v Gonda Mandal, AIR 1955 NUC 568 (Cal) 568; Debendra, AIR 1925 C 268—Contra; Muzaffar Ahmad v Khatindra Bhusan Gupta, AIR 1946 Cal 302 : (1946) 47 Cr LJ 320 : 222 IC 528]. [s 137.8] Stay of proceedings.— The evidence adduced by the petitioners in the present case was not found to be reliable evidence to support denial of the existence of public pathway. Hence, the Magistrate rightly refused to exercise his first option as envisaged under section 137(2) of Code of Criminal Procedure, 1973 [Budh Singh v Hapu Ram, 1996 Cr LJ 1576, 1579 : 1996 CrLR (Raj) 49 : 1996 (2) Raj LW 36 (Raj)]. End of Document

[s 138] Procedure where he appears to show cause.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER X MAINTENANCE OF PUBLIC ORDER AND TRANQUILLITY > B.—Public Nuisances

The Code of Criminal Procedure, 1973 CHAPTER X MAINTENANCE OF PUBLIC ORDER AND TRANQUILLITY Provisions of four chapters of the old Code, namely chapters 9, 10, 11 and 12 have been incorporated in this one chapter 10 divided into four parts—Pt A (Unlawful Assemblies—sections 129 to 132), Pt B (Public Nuisance— sections 133 to 143), Pt C (Urgent cases of Nuisance and Apprehended Danger—section 144), Pt D (Disputes as to Immovable Property—sections 145 to 148).

B.—Public Nuisances [s 138] Procedure where he appears to show cause.— (1) If the person against whom an order under section 133 is made appears and shows cause against the order, the Magistrate shall take evidence in the matter as in a summons case. (2) If the Magistrate is satisfied that the order, either as originally made or subject to such modification as he considers necessary, is reasonable and proper, the order shall be made absolute without modification or, as the case may be, with such modification. (3) If the Magistrate is not so satisfied, no further proceedings shall be taken in the case. [s 138.1] Changes.— Section 138 corresponds to the old section 137 with following changes:

(1) in sub-section (1), certain words have been newly added. (2) Sub-sections (2) and (3) have been redrafted.

It has been made clear that the Magistrate has power to modify the conditional order on the basis of the enquiry made by him and then make it absolute. [s 138.2] Scope and application of section 138.— When the party served appears to show cause, section 137 comes into play. At this stage, the Magistrate shall ask him whether he denies the existence of the public right in question. If there is denial, he must proceed to enquire as laid down in section 137. He cannot legally proceed to enquire under section 138 unless the question contained in section 137 has first been decided against the party [Etraj, 33 Cal WN 201; Lal Behari De v Jatindra Chadra De, AIR 1949 Cal 57 : 52 Cal WN 12 : (1948) 49 Cr LJ 608; Bardeshwari Prosad v Rabi Nandan Saha, AIR 1956 Cal 24 : 1956 Cr LJ 212 : 60 Cal WN 10; Nirsu Pande v Emperor, AIR 1934 Pat 145 (1) : (1934) 35 Cr LJ 488 : 14 Pat LT 778; Emperor v Raghunandan Saran Das, AIR 1936 Pat 639 : (1937) 38 Cr LJ 29 : 17 Pat LT 791; Ramkali v Kripa Shankar, AIR 1933 All 615 : ILR 55 All 866 : (1934) 35 Cr LJ 4;

Page 2 of 4 [s 138] Procedure where he appears to show cause.— Hamid Ali, AIR 1930 L 1046; Mahabir, AIR 1933 N 267; Matabbar Molla v Golam Panjaton, AIR 1931 Cal 486 : (1931) 32 Cr LJ 33 : ILR 57 Cal 368; Uma Kanta Chatterjee v Kalipada Chowdhury, AIR 1933 Cal 790 : (1934) 35 Cr LJ 89 : 37 Cal WN 823; Shk. Sadir, 29 Cal WN 649; Kishorilal v State, AIR 1960 All 244 : 1960 Cr LJ 450; Jaswant Singh v Jagir Singh, AIR 1972 P&H 192 : 1972 Cr LJ 792 Cr LJ 792 : 74 Punj LR 90]. To make an order under section 138 without first recording a finding on the question in section 137 is ultra vires [Ramkali, sup; Baradeshwari, sup; Manohar Lal v Emperor, AIR 1931 Lah 62 : (1931) 32 Cr LJ 621 : 32 Punj LR 11; Abu Sayyed, AIR 1935 P 138; Re : Narsingh Narain v Rameshwar Singh, AIR 1936 Pat 360 : (1936) 37 Cr LJ 846 (1) : 17 Pat LT 399; Govinda Gaundan v Ayi Goundan, AIR 1939 Mad 465 : (1939) 40 Cr LJ 813 : 49 Mad LW 476 : 1939 (1) Mad LJ 649; Ata Muhammad v Abdul Rahman, AIR 1937 Lah 676 : 39 Punj LR 484 : (1937) 38 Cr LJ 676; Nemani, 5 DLR (P) 134]. Proceedings under sections 137 and 138 cannot be taken at one stretch. They are different enquiries and must be conducted at two stages [Gangadhar Marwariv Emperor, AIR 1936 All 150 : (1936) 37 Cr LJ 422 : 1936 All LJ 116; Chhangu v Suraj Pal, AIR 1948 Oudh 19 : (1947) 48 Cr LJ 666 : 231 IC 42].

If after a decision under section 137 against the opposite party, he files a civil suit, the enquiry under section 138 need not be stayed [Kalika Prasad v Shiam Kishore Singh, AIR 1934 All 131 : (1934) 35 Cr LJ 1445 (2) : 1934 All LJ 342; Shamji Tricumdas v Ram moye, AIR 1933 Cal 318 : (1933) 34 Cr LJ 532 : 56 Cal LJ 249]. If the Magistrate is satisfied that no further proceedings are necessary, he can drop them [Issur, 8 C 883; Shonai, 1 CLR 486; Ramu v Murli Das, AIR 1943 All 19 : (1942) All LJ 584 : (1943) 44 Cr LJ 205].

Appearance is to be made before the Magistrate who made the conditional order, or the Magistrate before whom the party has been directed in the original order to appear [Preonath, 25 C 278; Narasimha, 9 M 201]. The case cannot be sent to another Magistrate for inquiry and report [Kariyappa, 47 B 89; Bhola v Lachman, AIR 1950 All 475 : (1950) 51 Cr LJ 1248 (2) : 1950 All LJ 363 : 1950 All WR 609].

There can be no reference to arbitration [Rajabalam, 22 Cr LJ 327; AjitShk., 22 Cr LJ 511] nor can the Magistrate act as arbitrator even if the parties wish so [Chandra, 25 Cr LJ 349; Upendra, 11 Cr LJ 1; Bhoora, 47 A 270].

An order absolute is not like an order under section 144 which spends itself in sixty days. But if the nuisance has already abated, the order should not be allowed to remain in force [Kalyan Mul Mathur v Emperor, AIR 1936 Pat 577 : (1936) 37 Cr LJ 1159].

A vague conditional order cannot be made absolute [Ratepayer’s Comm., AIR 1952 C 127]. Nor can an order be made final on a ground not mentioned in the conditional order [Ratepayers Comm., sup]. A final order can be passed by modification of the conditional order [sub-section (2)].

The burden of proof in an inquiry under section 138 (1) is on the complainant petitioner. The respondent who failed to appear or to adduce reliable evidence is not precluded from challenging the final order [Ayisumma, 1977 Ker LT 329 : 1977 Mad LJ (Cri) 237].

In proceedings initiated on an allegation that there is obstruction to a public way, the moment there is a denial of the existence of any public right, the Magistrate must first inquire into that question before proceeding to deal with the matter under section 138. This procedure between the initiation of the proceedings under section 133 and the final order under section 133 is mandatory, the failure whereof will make the final order under section 138 an illegal one [Brahmdeo Singh v Indradeo Singh, 1984 Cr LJ 300 (Pat)].

A conditional order confirmed only on the basis of affidavit and counter-affidavit, without recording evidence as in a summons case, would not be sustainable [Mool Chandra v State of UP, 2005 Cr LJ 2013 (2015) (All) : 2005 All LJ 1030 : (2005) 51 All CrC 662; Kranti Parcel v State, 1997 Cr LJ 679 (AP-DB); Sunil Pattanayek v Ajit Pattanayek, 2007 Cr LJ 4125 (4127) Cal)]. [s 138.3] Inquiry before Magistrate (Procedure).—

Page 3 of 4 [s 138] Procedure where he appears to show cause.— Taking of evidence is imperative. The Magistrate is bound to take evidence in the presence of the parties before cancelling the order [Ganga, AIR 1929 C 21; Shew Khelaon, 22 Cr LJ 239; Achhru, 11 L 247; Jagannath, AIR 1927 A 825] or making it absolute. He cannot act on his own opinion or on local inspection or on the report of any one, but must take evidence

[Srinath, 24 C 395; Ismail, AIR 1922 A 265; Kishori, 13 Cal WN 367; Upendra, 11 Cr LJ 1; Sarojbashini, 42 C 702; Rajmohan, 44 C 61; Mahadaji, 11 B 375; Rameshwar Narayan Agarwal v Emperor, AIR 1939 Bom 92 : 41 Bom LR 84 : (1939) 40 Cr LJ 444 92; Bechan, 47 A 341; Abdul Karim, AIR 1927 A 384; Bhoora, 49 A 270; Kalyan Mul Mathur v Emperor, AIR 1936 Pat 577 : (1936) 37 Cr LJ 1159; Jassi, 25 Cr LJ 266; Sant Sahai, 23 Cr LJ 250; Attar, 28 Cr LJ 60; Khair Din v Wasan Singh, AIR 1935 Lah 28 : (1936) 37 Cr LJ 70; Ranbahadur, 27 Cr LJ 1254; Achhru, 31 Cr LJ 880]. Arbitrary time limit for cross-examination cannot be fixed [Abed Ali, AIR 1921 C 118].

An order under section 133 of Code of Criminal Procedure, 1973 should not be made solely on the basis of report submitted by the officer-in-charge of the police station and documents placed before the court. The Magistrate is bound to conduct inquiry [Birabandhu Mahapatra v Narendra Nath Mohanty, 2004 (3) Crimes 304 (306) (Ori)].

Where the Magistrate does not record finding that the evidence adduced by the opposite party in support of the denial was reliable or not, and makes the evidence absolute, the order is liable to be set aside [Brij Kishore Rai v State of UP, 2002 Cr LJ 4577 (4578) (All) : 2002 All LJ 2368 : (2002) 45 All CrR 834].

There was encroachment on a public pathway and a complaint was made for its removal. Magistrate had called upon report of SDL and LRO, but in these reports, there was no any mention about existence of a public pathway. Magistrate did not provide opportunity to parties to adduce evidence. Magistrate passed final order under section 133 making earlier order permanent only on perusal of petition under section 133 of Code of Criminal Procedure, 1973. It was held that it amounted to non-compliance of mandatory provisions of section 138 and causing of serious miscarriage of justice. Impugned order was set aside in exercise of inherent powers [Sunil Pattanayk v Ajit Pattanayk, 2007 Cr LJ 4125]. In a charge for unlawful obstruction or nuisance, proceedings were started by Magistrate but he neither took any evidence nor made any justification that conduct of petitioner amounted to obstruction in public place. It was held that impugned proceedings was liable to be set aside [Sankar Saha v State, 2008 Cr LJ (NOC) 224 (Gau)]. [s 138.4] Consent order.— The procedure in section 138 must be followed even if there be consent or waiver by a party as public rights are involved [Upendra, 10 Cr LJ 482; Doraiswamy, 16 Cr LJ 207; Ram Manda, 21 Cal WN 926; Bhoora 49 A 270]. Failure to comply with the provisions of the section vitiates the entire proceedings [Tirkha, 49 A 475; Bhoora, sup; Kishori, 13 Cal WN 367]. Even if the second party does not appear to show cause [Akhoy, 28 Cr LJ 859], or fails to appear at an adjourned hearing, evidence has to be taken [Ram Singh, 2 Bom LR 818; Bechan, 47 A 341]. Even if the parties consent, the Magistrate cannot send the mater to another Magistrate for report [Karyappa, 47 B 89]. Nor can he decide the matter by a personal inspection only without taking evidence [Ram Chandar Lal v Emperor, AIR 1934 Pat 316 (1934) 35 Cr LJ 1020 : 15 Pat LT 288; Raimohan, 44 C 61; Kalisaday, 23 Cal WN A 1054; Rameshwar Narayan Agarwal v Emperor, AIR 1939 Bom 92 : 41 Bom LR 84 : (1939) 40 Cr LJ 444; Mulchand, 32 Cr LJ 765; Tirkha, 49 A 475; Bhoora, AIR 1927 A 267 : 99 Ind. Cas. 415 : (1927) ILR 49 All 270]. [s 138.5] Summons case procedure.— The procedure will be as in a summons case [Hingu, 31 A 453; Raghunandan, 38 Cr LJ 29; Rameshwar, AIR 1939 Bom 92 : 1939 (41) BomLR 84; Attar, 29 Cr LJ 60]. Where the Magistrate omits to do so and does not record the accused’s statement or question him, it is illegal [Mulchand, A 1931 O 397]. Evidence taken for decision under section 137 may be treated as evidence in the enquiry under section 138 if the parties so desire [Ram Narain Gupta v Emperor, AIR 1946 Oudh 108 : (1946) 47 Cr LJ 306]. But the enquiry under section 138 is separate and the Magistrate is not entitled to pass final order on the result of the enquiry under section 137 [Lal Behari De v Jatindra Chandra De, AIR 1949 Cal 57 : (1948) 49 Cr LJ 608 : 52 Cal WN 12]. The court is

Page 4 of 4 [s 138] Procedure where he appears to show cause.— bound to compel the attendance of witnesses if required [Bhomar, 6 Cal WN 548]. It is not precluded from making a final order because a previous order under section 142 was complied with [Rebati, A 1936 C 692]. [s 138.6] Sub-section (2).— The order made absolute is the conditional order either as originally made or modified. It cannot be challenged in a Civil Court [section 133 (2)], nor can a Magistrate of concurrent jurisdiction refuse to give effect to it on the ground of illegality [Kiranl, 27 Cal WN 459; Sahabunddin, 31 Cal WN 530] nor can the accused go behind the order at any time [Bishambhar, 13 A 577]. The order shall contain the points for determination, the decision thereon and the reasons for the decision [see section 354 (6)]. [s 138.7] Civil Suit.— Absolute order under section 138 may be questioned in Civil Court. The bar in section 133 (2) and section 141(3) does not apply [Changi, 51 PLR 176]. [s 138.8] Revision.— High Court or Sessions Judge has power to modify the order to such extent as may seem fit [Manohar, AIR 1929 A 220]. End of Document

[s 139] Power of Magistrate to direct local investigation and examination of an expert.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER X MAINTENANCE OF PUBLIC ORDER AND TRANQUILLITY > B.—Public Nuisances

The Code of Criminal Procedure, 1973 CHAPTER X MAINTENANCE OF PUBLIC ORDER AND TRANQUILLITY Provisions of four chapters of the old Code, namely chapters 9, 10, 11 and 12 have been incorporated in this one chapter 10 divided into four parts—Pt A (Unlawful Assemblies—sections 129 to 132), Pt B (Public Nuisance— sections 133 to 143), Pt C (Urgent cases of Nuisance and Apprehended Danger—section 144), Pt D (Disputes as to Immovable Property—sections 145 to 148).

B.—Public Nuisances [s 139] Power of Magistrate to direct local investigation and examination of an expert.— The Magistrate may, for the purposes of an inquiry under section 137 or section 138— (a) direct a local investigation to be made by such person as he thinks fit; or (b) summon and examine an expert. [s 139.1] Scope and application of section 139.— This new section confers power on the Magistrate to direct local investigation and examine experts and witnesses. Local investigation does not merely mean one’s own observation of the things but even ascertainment of facts by recording the statements of witnesses [Amar Singh v State of UP, 1980 Cr LJ 1350 : 1980 All Cr C 217 : 1980 All Cr R 218 (All)]. The local inspections are made for the better appreciation of evidence on record and cannot be made on the sole basis for making the order absolute under section 138 (2) of Code of Criminal Procedure, 1973 [Brij Kishore Rai v State of UP, 2002 Cr LJ 4577 (4578) (All) : 2002 All LJ 2368 : (2002) 45 All CrC 834]. End of Document

[s 140] Power of Magistrate to furnish written instructions, etc.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER X MAINTENANCE OF PUBLIC ORDER AND TRANQUILLITY > B.—Public Nuisances

The Code of Criminal Procedure, 1973 CHAPTER X MAINTENANCE OF PUBLIC ORDER AND TRANQUILLITY Provisions of four chapters of the old Code, namely chapters 9, 10, 11 and 12 have been incorporated in this one chapter 10 divided into four parts—Pt A (Unlawful Assemblies—sections 129 to 132), Pt B (Public Nuisance— sections 133 to 143), Pt C (Urgent cases of Nuisance and Apprehended Danger—section 144), Pt D (Disputes as to Immovable Property—sections 145 to 148).

B.—Public Nuisances [s 140] Power of Magistrate to furnish written instructions, etc.— (1) Where the Magistrate directs a local investigation by any person under section 139, the Magistrate may— (a) furnish such person with such written instructions as may seem necessary for his guidance; (b) declare by whom the whole or any part of the necessary expenses of the local investigation shall be paid. (2) The report of such person may be read as evidence in the case. (3) Where the Magistrate summons and examines an expert under section 139, the Magistrate may direct by whom the costs of such summoning and examination shall be paid. [s 140.1] Scope and application of section 140.— This is a new provision enabling the Magistrate to furnish the person, to whom local investigation has been directed, with written instructions and to make orders regarding payment of costs of the local investigation and costs of summoning and examination of experts. End of Document

[s 141] Procedure on order being made absolute and consequences of disobedience.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER X MAINTENANCE OF PUBLIC ORDER AND TRANQUILLITY > B.—Public Nuisances

The Code of Criminal Procedure, 1973 CHAPTER X MAINTENANCE OF PUBLIC ORDER AND TRANQUILLITY Provisions of four chapters of the old Code, namely chapters 9, 10, 11 and 12 have been incorporated in this one chapter 10 divided into four parts—Pt A (Unlawful Assemblies—sections 129 to 132), Pt B (Public Nuisance— sections 133 to 143), Pt C (Urgent cases of Nuisance and Apprehended Danger—section 144), Pt D (Disputes as to Immovable Property—sections 145 to 148).

B.—Public Nuisances [s 141] Procedure on order being made absolute and consequences of disobedience.— (1) When an order has been made absolute under section 136 or section 138, the Magistrate shall give notice of the same to the person against whom the order was made, and shall further require him to perform the act directed by the order within a time to be fixed in the notice, and inform him that, in case of disobedience, he will be liable to the penalty provided by section 188 of the Indian Penal Code (45 of 1860). (2) If such act is not performed within the time fixed, the Magistrate may cause it to be performed, and may recover the costs of performing it, either by the sale of any building, goods or other property removed by his order, or by the distress and sale of any other moveable property of such person within or without such Magistrate’s local jurisdiction and if such other property is without such jurisdiction, the order shall authorise its attachment and sale when endorsed by the Magistrate within whose local jurisdiction the property to be attached is found. (3) No suit shall lie in respect of anything done in good faith under this section. [s 141.1] Changes.— Section 141 corresponds to the old section 140. [s 141.2] Scope and application of section 141.— It lays down the procedure for enforcement of an order after it is made absolute. Form of notice (Sch 2 No. 21). Sub-section (1) is merely a directory and the Magistrate may in his discretion suspend action until the result of the civil suit [Banku, 58 C 1088 : 35 Cal WN 571]. A Magistrate of concurrent jurisdiction cannot refuse to take action under the section on the ground that the order was not legal [Kiran, 27 Cal WN 459; Shahabuddin, 31 Cal WN 530].

It is unjust to realise cost from a party who was not served with notice of the proceedings [Shahabuddin, sup]. On the death of a party against whom order has been made, it ceases to have further effect [Jugal, AIR 1928

Page 2 of 2 [s 141] Procedure on order being made absolute and consequences of disobedience.— All 300]. The validity of a final order cannot be questioned at the trial under section 188 of Indian Penal Code, 1860 [Khoda, Baksh, 60 C 1336].

A applied for an interim injunction under section 133, alleging that B’s ice factory created a nuisance, as the bursting of ammonia gas cylinder was a danger to the life of neighbours. The Magistrate passed an interim order directing B to remove the factory within 7 days. It was held that the order was illegal. It was neither a conditional order nor had A applied for it. The Magistrate could have ordered B so to run the factory as not to endanger life or create nuisance [Mohammad Rafique v State of Rajasthan, 1986 Cr LJ 44 : 1985 Raj LR 309 : 1985 Raj LW 208 : 1985 CrLR (Raj) 265 (Raj)]. [s 141.3] Public nuisance.— Magistrate is empowered under section 141(2) to remove destruction for public good and recover cost involved in the task from person creating obstruction to water channel even during pendency of proceedings under section 188 of Code of Criminal Procedure, 1973 [Sri Abhimanyuttota v State of Orissa, 2007 (1) Crimes 401 (Orissa)]. [s 141.4] Sub-section (3).— No suit lies to set aside order to restrain the Magistrate from carrying it into effect [Ujalamayi, 4 BLR 24 FB; Chunnilal, 15 C 460 FB; Kedar, 41 Cr LJ 99]. The effect of sub-section (3) is that if the Magistrate’s order has caused loss or injury to the owner, no person will be liable for compensation [Mukhtar, 5 DLR (A) 303]. End of Document

[s 142] Injunction pending inquiry.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER X MAINTENANCE OF PUBLIC ORDER AND TRANQUILLITY > B.—Public Nuisances

The Code of Criminal Procedure, 1973 CHAPTER X MAINTENANCE OF PUBLIC ORDER AND TRANQUILLITY Provisions of four chapters of the old Code, namely chapters 9, 10, 11 and 12 have been incorporated in this one chapter 10 divided into four parts—Pt A (Unlawful Assemblies—sections 129 to 132), Pt B (Public Nuisance— sections 133 to 143), Pt C (Urgent cases of Nuisance and Apprehended Danger—section 144), Pt D (Disputes as to Immovable Property—sections 145 to 148).

B.—Public Nuisances [s 142] Injunction pending inquiry.— (1) If a Magistrate making an order under section 133 considers that immediate measures should be taken to prevent imminent danger or injury of a serious kind to the public, he may issue such an injunction to the person against whom the order was made, as is required to obviate or prevent such danger or injury pending the determination of the matter. (2) In default of such person forthwith obeying such injunction, the Magistrate may himself use, or cause to be used, such means as he thinks fit to obviate such danger or to prevent such injury. (3) No suit shall lie in respect of anything done in good faith by a Magistrate under this section. [s 142.1] Changes.— Section 142 corresponds to the old section 142. [s 142.2] Scope and application of section 142.— The jurisdiction to pass order under section142 arises only when immediate measures are considered necessary to prevent imminent danger or injury to public interest. When the danger is remote or has passed away, no order can be passed [Inder, 1 WR 8; see Brojendra, 21 WR 86]. The imminent danger or injury must emanate only from things specified in section 133 [Mirza Md., AIR 1937 L 101; Rebati, AIR 1936 C 692 : 38 Cr LJ 173]. If the injunction goes beyond the scope of the particular nuisance complained of, it is illegal [Panchanan, 53 Cal WN 907]. Form (Sch 2 No.22). An order under the section does not preclude the Magistrate from making a final order under section138 [Rebati, sup].

Without issuing an injunction in terms of section142 (1), action cannot be taken under sub-section (2) on a mere order under section 133 [Jobed Ali, 52 Cal WN 797].

Interim order of injunction can be made at any stage of inquiry, i.e., even when it is under section137 or section 138 and not necessarily at the time of passing conditional order under section 133, but this interim order should confine itself to preventing the particular nuisance contemplated by the conditional order under section 133. In this sense, section 142 (1) is governed and controlled by section 133 [Ramji v The State, 1978 Cr LJ (NOC)

Page 2 of 2 [s 142] Injunction pending inquiry.— 193 : 1978 All WC 434 : 1978 All Cr C 207 (All)]. Notice before injunction should ordinarily be issued except in very extreme cases and where delay would result in dangerous consequences by way of injury to the public [Chamunny v State of Kerala, 1979 Cr LJ (NOC) 151 : 1979 Ker LT 107 (Ker)]. End of Document

[s 143] Magistrate may prohibit repetition or continuance of public nuisance.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER X MAINTENANCE OF PUBLIC ORDER AND TRANQUILLITY > B.—Public Nuisances

The Code of Criminal Procedure, 1973 CHAPTER X MAINTENANCE OF PUBLIC ORDER AND TRANQUILLITY Provisions of four chapters of the old Code, namely chapters 9, 10, 11 and 12 have been incorporated in this one chapter 10 divided into four parts—Pt A (Unlawful Assemblies—sections 129 to 132), Pt B (Public Nuisance— sections 133 to 143), Pt C (Urgent cases of Nuisance and Apprehended Danger—section 144), Pt D (Disputes as to Immovable Property—sections 145 to 148).

B.—Public Nuisances [s 143] Magistrate may prohibit repetition or continuance of public nuisance.— A District Magistrate or Sub-divisional Magistrate, or any other Executive Magistrate empowered by the State Government or the District Magistrate in this behalf, may order any person not to repeat or continue a public nuisance, as defined in the Indian Penal Code (45 of 1860), or any special or local law. [s 143.1] Changes.— Section 143 corresponds to the old section 143 with insertion of the word “Executive”. [s 143.2] Scope and application of section 143.— The order under this section prevents the repetition or continuance of a public nuisance while section 142 prevents it for the first time. Section 143 therefore applies only after an order prohibiting public nuisance has already been passed against a person [Ram Sahai, AIR 1935 A 79; Sahabat, 41 Cal WN 638]. So original use cannot be made of section 143 by passing an order ex parte without drawing up a proceeding and giving the concerned person an opportunity of being heard under the other sections of chapter 10B [Jagadish, AIR 1934 P 305 : 36 Cr LJ 187; Mahadeb, 10 Cut LT 69; Sahabat, 41 Cal WN 638; Jogendra, 38 Cal WN 1070 : 36 Cr LJ 591]. Although the section applies to a public nuisance in the Penal Code, it does not stand now but applies only to subsequent proceedings of nuisance already adjudicated under the previous sections [Hazi Suleman, AIR 1940 SC 124]. What was lawful before cannot be prevented by an order under the section [Swaminatha, 19 M 464]. An order under section 143 does to bind one who was not a party in the earlier proceedings in which the original order was passed [Ram Sahai, 36 Cr LJ 144].

End of Document

[s 144] Power to issue order in urgent cases of nuisance or apprehended danger.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER X MAINTENANCE OF PUBLIC ORDER AND TRANQUILLITY > C.—Urgent Cases of Nuisance or Apprehended Danger

The Code of Criminal Procedure, 1973 CHAPTER X MAINTENANCE OF PUBLIC ORDER AND TRANQUILLITY Provisions of four chapters of the old Code, namely chapters 9, 10, 11 and 12 have been incorporated in this one chapter 10 divided into four parts—Pt A (Unlawful Assemblies—sections 129 to 132), Pt B (Public Nuisance— sections 133 to 143), Pt C (Urgent cases of Nuisance and Apprehended Danger—section 144), Pt D (Disputes as to Immovable Property—sections 145 to 148).

C.—Urgent Cases of Nuisance or Apprehended Danger [s 144] Power to issue order in urgent cases of nuisance or apprehended danger.— (1) In cases where, in the opinion of a District Magistrate, a Sub-divisional Magistrate or any other Executive Magistrate specially empowered by the State Government in this behalf, there is sufficient ground for proceeding under this section and immediate prevention or speedy remedy is desirable, such Magistrate may, by a written order stating the material facts of the caseand served in the manner provided by section 134, direct any person to abstain from a certain act or to take certain order with respect to certain property in his possession or under his management, if such Magistrate considers that such direction is likely to prevent, or tends to prevent, obstruction, annoyance or injury to any person lawfully employed, or danger to human life, health or safety, or a disturbance of the public tranquillity, or a riot, or an affray. An order under this section may, in cases of emergency or in cases where the circumstances do not admit of the serving in due time of a notice upon the person against whom the order is directed, be passed ex parte. (2) An order under this section may be directed to a particular individual, or to persons residing in a particular place or area, or to the public generally when frequenting or visiting a particular place or area. (3) No order under this section shall remain in force for more than two months from the making thereof : Provided that, if the State Government considers it necessary so to do for preventing danger to human life, health or safety or for preventing a riot or any affray, it may, by notification, direct that an order made by a Magistrate under this section shall remain in force for such further period not exceeding six months from the date on which the order made by the Magistrate would have, but for such order, expired, as it may specify in the said notification.

Page 2 of 20 [s 144] Power to issue order in urgent cases of nuisance or apprehended danger.— (5) Any Magistrate may, either on his own motion or on the application of any person aggrieved, rescind or alter any order made under this section, by himself or any Magistrate subordinate to him or by his predecessor-in-office. (6) The State Government may, either on its own motion or on the application of any person aggrieved, rescind or alter any order made by it under the proviso to sub-section (4). (7) Where an application under sub-section (5) or sub-section (6) is received, the Magistrate, or the State Government, as the case may be, shall afford to the applicant an early opportunity of appearing before him or it, either in person or by pleader and showing cause against the order, and if the Magistrate or the State Government, as the case may be, rejects the application wholly or in part, he or it shall record in writing the reasons for so doing. [s 144.1] Changes.— Section 144 corresponds to the old section 144 with the following changes:

(1) In sub-section (1), the words “District Magistrate, a Sub-divisional Magistrate or any other Executive Magistrate specially empowered by the State Government in this behalf” have been substituted for certain words, the words “respect to” have been added and the words “or risk of obstruction, annoyance or injury” after “annoyance or injury have been omitted. (2) In sub-section (3), certain words have been added. (3) Old sub-section (6) has been renumbered sub-section (4) and in it the proviso has been substituted for unless, in cases of danger to human life, health or safety, or a likelihood of a riot or an affray of the State Government, by notification in the Official Gazette, otherwise directs. (4) Old sub-section (4) has been renumbered sub-section (5). (5) Sub-section (6) has been newly added. (6) Old sub-section (5) has been renumbered sub-section (7), and in it certain words have been added.

Material changes introduced are:

(1) The power to empower executive Magistrates has been retained only with the State Government and has not been given to the district Magistrate unlike in the old section. (2) To remove the conflict of opinion as regards the meaning of “particular place” and whether the expression “frequenting or visiting” also included persons residing in a particular place, sub-section (3) has been amplified by addition of certain words. (3) The power of the State Government under old sub-section (6) [now sub-section (4)] to extend the Magistrate’s order to an indefinite period beyond two months (because of the indefinite period and also because there was no provision for making any representation by the aggrieved party against the order of the State Government or for appeal or revision) having been held unconstitutional by the Supreme Court [see State of Bihar v KK Misra, AIR 1971 SC 1667 : (1969) 3 SCC 337 (SC)], the proviso to the sub-section has been substituted giving power to extend the period for such further period not exceeding six months from the date of expiry of the initial order; and further power has been given also to the State Government under new sub-section (6) to rescind or alter on its own motion or upon application of the aggrieved party the order extending the duration. Sub-section (7) [old sub-section (5)] has also been modified by giving an opportunity to the aggrieved party to show cause against the order of the State Government and requiring the State Government to record reasons for rejecting the application. [s 144.2] Scope and application of section 144.— Section 144 of Code of Criminal Procedure, 1973 is intended to serve public purpose and protect public order. This power vested in the executive is to be invoked after the satisfaction of the authority that there is need for

Page 3 of 20 [s 144] Power to issue order in urgent cases of nuisance or apprehended danger.— immediate prevention or that speedy remedy is desirable and directions as contemplated are necessary to protect the interest of others or to prevent danger to human life, health or safety or disturbance of public tranquility or a riot or an affray. These features must co-exist at a given point of time in order to enable the authority concerned to pass appropriate orders [Ramlila Maidan Incident, In Re, (2012) 5 SCC 1 : 2012 Cr LJ 3516 (SC) : 2012 (2) Scale 682].

A bare reading of section144 of the Code of Criminal Procedure, 1973 shows that: (1) It is an executive power vested in the officer so empowered; (2) There must exist sufficient ground for proceeding; (3) Immediate prevention or speedy remedy is desirable; and (4) An order, in writing, should be passed stating the material facts and be served the same upon the concerned person. These are the basic requirements for passing an order under section 144 of the Code. Such an order can be passed against an individual or persons residing in a particular place or area or even against the public in general. Such an order can remain in force, not in excess of two months. The government has the power to revoke such an order and wherever any person moves the government for revoking such an order, the State Government is empowered to pass an appropriate order, after hearing the person in accordance with sub-section (3) of section 144 of the Code [Ramlila Maidan Incident, In Re, (2012) 5 SCC 1 : 2012 Cr LJ 3516 (SC) : 2012 (2) Scale 682].

The sine quo non for an order under section 144 of the Code is urgency requiring an immediate and speedy intervention by passing of an order, which must set out the material facts of the situation. The ultimate object of such a provision is to invoke only in grave circumstances for maintenance of public peace. Further, the efficacy of this provision is to prevent some harmful occurrence immediately and therefore, the emergency must be sudden and the consequences sufficiently grave. In addition, the provisions of section44 Code of Criminal Procedure, 1973, cannot be resorted to merely on imaginary or likely possibility or likelihood or tendency of a threat, as the executive power, to cause a restriction on a constitutional right within the scope of section144 of Code of Criminal Procedure, 1973 has to be used sparingly and very cautiously [R Vaigai Kannan v District Collector, 2015-1-LW (Crl) 210].

This section confers very wide powers to pass orders on emergency occasions. The order under section144, which must state the material facts on which it is based must either direct any person—(1) to abstain from a certain act, or (2) to take certain order with respect to certain property in his possession or under his management : And such direction can be given only in the three cases specified, namely, to prevent—(i) obstruction, annoyance, or injury to any person lawfully employed or (ii) danger to human life, health or safety, or (iii) a disturbance of the public tranquillity or a riot, or any affray.

The Magistrate had been passing series of orders under section 144 of Code of Criminal Procedure, 1973; whereby members of both the communities were prevented from taking part in the temple festival. Since the jurisdiction under section 144 was exercised in a very casual and mechanical manner, both the petitioners as well as the respondents and their community members were compelled to approach the High Court time and again to redress their grievances. In case the respondents were aggrieved on account of the decision of the Civil Court, their remedy was only to execute the Civil Court order to its logical end. It would also enable the Executive Magistrate to call the parties and to make an attempt to reconcile the rights of both the parties. The Executive Magistrate very conveniently thought it fit to invoke the power under section 144 of Code of Criminal Procedure, 1973 and thereby to shirk his responsibility of maintaining law and order—section 144 is intended to be used only in an extraordinary situation [V Mohan Ambalam v Tahsildar-cum-Executive Magistrate Melur, 2010 Cr LJ 248 (255) (Mad) : 2009 (4) CTC 343].

The Executive Magistrate is not expected to invoke the power under section 144 of the Code of Criminal Procedure, 1973 in a routing manner. There must be materials before him to show that a situation has come which required immediate action to prevent the breach of peace. The order under section 144 of the Code of Criminal Procedure, 1973 is only by way of a temporary measure and no rights are decided by the Executive Magistrate while passing such orders. The attempt of the Executive Magistrate should be to ensure law and order and to prevent breach of peace but not to justify the contention of a party whose claim was negated by the Civil Court. When there is a Civil Court judgment declaring the rights of a particular section, the endeavour of the Executive Magistrate should be to strike a balance between the exercise of such right by the said party with the demand made by the opposite party. Under the guise of breach of peace, the Executive Magistrate is

Page 4 of 20 [s 144] Power to issue order in urgent cases of nuisance or apprehended danger.— not expected to curtail the declared rights of a particular community [V Mohan Ambalam v Tahsildar-cumExecutive Magistrate, Melur Taluk, 2010 Cr LJ 248 (255) (Mad) : 2009 (4) CTC 343].

This single section in chapter 10C is intended for temporary orders only in cases of grave emergency. It is directed against those who attempt to prevent the exercise of legal rights by others or imperil the public safety and health [Madhu Limaye v SDM Monghyr, AIR 1971 SC 2486 : 1971 Cr LJ 1720 : (1970) 3 SCC 746; Abdool, 5 C 132; Tekait, 5 Cal WN 329; Ganesh, 38 Cal WN 388 : 35 Cr LJ 1252] and the Magistrate should resort to this extraordinary power only when he is satisfied that other powers with which he is entrusted are insufficient [Sundram, 6 M 203 FB; Kamini 38 C 876; Sumner, A 1933 C 348 : 34 Cr LJ 334]. Scope and applicability and nature of orders that can be passed under section 144 stated [Mohammad Abbas v Mohammed Ibrahim, AIR 1978 SC 422 : 1978 Cr LJ 496 : (1978) 1 SCC 226 (SC); Gulam Abbas v State of UP, AIR 1981 SC 2198 : (1982) 1 SCC 71 : 1981 Cr LJ 1835 (SC)]. The preservation of life and property is the first duty of the government and to secure this end, power is conferred to interfere with even the ordinary rights of the members of the community. The Magistrate has been given authority to suspend the exercise of rights recognised by law, when such exercise may conflict with other rights of the public or tend to endanger the public peace [Sundram, sup, p 220; Viswantatha, 51 M 1006 FB; Pir Gul, AIR 1939, section 230]. The gist of action under section 144 is the urgency of the situation, its efficacy in the likelihood of being able to prevent some harmful occurrences. As it is possible to act absolutely and even ex parte, it is obvious that the emergency must be sudden and the consequences sufficiently grave. Without it, the exercise of power would have no justification. It is not an ordinary power flowing from administration but a power used in a judicial manner and which can stand further judicial scrutiny in the need for the exercise of the power in its efficacy and in the extent of its application [Madhu Limaye v SDM, Monghyr, AIR 1971 SC 2486, 2496 : 1971 Cr LJ 1720 : (1970) 3 SCC 746 (Jagrupa, 37 Cr LJ 95 (P) relied on)].

On face of existence of land dispute and apprehension of breach of peace, order of SDM initiating proceedings under section 144 and converting to proceedings under section 145 would be proper [Gauri Shankar Sahar v Sabiyasachi Mahapatra, 2006 Cr LJ (NOC) 32 (Ori) : (2005) 32 OCR 863].

Notification cannot be issued retrospectively to revive order which had already expired [MS Associates v Commissioner of Police, 1997 Cr LJ 377 : 1997 (1) Cur Cr R 1 : 1996 (3) Chand Cr C 324 (Del)].

Conversion of proceeding, initiated and section 144 order passed must be passed within prescribed period of two months from the date of initiation [Monilal Bakshi v Deepak Rasjan Bakshi, 2001 Cr LJ 3776 : 2002 (A) East Cri C 129 : 2001 (3) Gau LR 256 (Gau)]. [s 144.3] Orders passed under sections 144 to 146 of Code of Criminal Procedure, 1973 without giving opportunity— Effect.— When the orders were passed under sections 144 to 146 of Code of Criminal Procedure, 1973 without providing any opportunity to the petitioner, proceedings initiated under section 144 and thereafter without waiting for appearance of the opposite party, converted into proceedings under section 145 and the property was attached under section 146 just two days thereafter. The entire proceedings were quashed, as there was nothing on record to show subjective satisfaction on the part of the Magistrate. Awadesh Prasad Singh v State of Bihar, 2006 Cr LJ (NOC) 563 (Pat) : 2006 (2) Pat LJR 148. [s 144.4] Constitutionality.— Sometimes, a person may be prevented from doing something even upon his own property provided the doing of perfectly legal act constitutes a danger to human life, health or safety of others or to public peace and tranquility [Mohammed Gulam Abbas v Mohammed Ibarahim, AIR 1978 SC 422 : 1978 Cr LJ 496 : (1978) 1 SCC 226], for it is obvious that in case of a conflict between public interest and private rights, the former must prevail [Gulam Abbas v State of UP, AIR 1981 SC 2198 : (1982) 1 SCC 71 : 1981 Cr LJ 1835 (SC)]. A Magistrate is not concerned with individual rights in performing his duty but he has to determine what may be reasonably necessary or expedient [Md. Gulam, sup]. The Magistrate is competent to hold spot inspection [Muni Prasad Kaneihyalal v Sukadev Ram, 1980 Cr LJ (NOC) 88 : (1980) 49 Cut LT 25 (Ori)]. Anticipatory restrictions under section 144 upon particular kinds of acts in an emergency for the purpose of maintaining public order are not impermissible under Articles 19 (2) and (3) of Constitution [Babulal Parate v State of

Page 5 of 20 [s 144] Power to issue order in urgent cases of nuisance or apprehended danger.— Maharashtra, AIR 1961 SC 884 : 1961 (3) SCR 423 : 1961 (2) Cr LJ 16; Ram Manohar Lohia v State of UP, AIR 1968 All 100 : 1968 Cr LJ 281 : 1967 All LJ 573].

Order under section144 in 1973 Code is administrative in nature and not judicial or quasi-judicial. It is amenable to writ jurisdiction under Articles 32 and 226 if it violates or infringes any fundamental right [Gulam Abbas v State of UP, AIR 1981 SC 2198 : (1982) 1 SCC 71 : 1981 Cr LJ 1835 (SC); Babulal Parate v State of Maharashtra, AIR 1961 SC 884 : 1961 (2) Cr LJ 16 (SC); State of Bihar v KK Misra, AIR 1971 SC 1667 (1969) 3 SCC 337 (SC); Madhu Limaye v SDM Manghyr, AIR 1971 SC 2486 : 1971 Cr LJ 1720 : (1970) 3 SCC 746 is no longer a good law in view of new Code of Criminal Procedure, 1973 1973].

Section 144 when properly applied is not unconstitutional as offending Article 19 of the Constitution [Madhu Limaye sup, 2497; Ram Manohar Lohia, sup]. The obstruction, annoyance or injury or any other danger or disturbance must assume sufficiently grave proportions to bring the matter within the interests of public order or general public or any other matter specified in Article 19 (2) to (6) [Gopalji Prasad v State of Sikkim, 1981 Cr LJ 60 (Sikkim)].

Section 144 is not in conflict with Article 19(1)(a) and (2)of the Constitution as amended by the First Amendment Act, 1951 [State v Deadley Misra, AIR 1954 All 738 : 1954 Cr LJ 1474 : 1954 All LJ 440; Babulal Parate v State of Maharashtra, AIR 1961 SC 884 : 1961 (2) Cr LJ 16 sup]. The restrictions in section 144 on the existence of freedom of speech and expression is not unreasonable and is covered by Article 19(2) of Constitution [Virendra v Sate of Punjab, AIR 1957 SC 896 (SC)]. Whether the restrictions in section 144 are within the permissible limits set out in Article19 (2) and (3) [Sri Raj Narain Singh v District Magistrate, AIR 1956 All 481 : 1956 Cr LJ 1026 : 1956 All LJ 671]. [s 144.5] Abridging liberty.— The phraseology which is very wide designedly confers extraordinary and extensive powers to the Magistrate to deal with the situation effectively and swiftly. Action under section though meant for public good may cause infringement or abridgement of individual liberty and so the power must be exercised with the greatest caution. As has frequently been held, it is only in exceptional circumstances where emergency of the gravest character is made out (e.g., danger to human life, imminent disturbance of public tranquillity or a riot or affray or an urgent case of nuisance or apprehended danger) that the Magistrate would be justified in passing an order under section 144 which would have the effect of interfering with the private rights of individuals [Ganesh, 38 Cal WN 388; Karoolal, 32 C 935; Radha, AIR 1929 P 714 : Ramnarain, AIR 1942 P 414; Pir Gul, AIR 1939 SC 230; Motilal, AIR 1931 B 513; Kamini, 38 C 876; Thakin Aung, AIR 1939 R 181; Anesh, 28 C 446; Govinda, 14 Cr LJ 589; Jokhu, 8 A 99; Hafizul Ekbal v Gopal Sardar, AIR 1951 Cal 472 : (1951) 52 Cr LJ 856 : 53 Cal WN 487, 489]. [s 144.6] Civil proceedings.— As to its bearing on civil proceedings, the section cannot be invoked when a civil suit is the proper remedy [Ramautar, 13 Cal WN 188 (order cannot be passed to prevent pecuniary loss); Haji Ali, AIR 1925 All 678 : 85 Ind. Cas. 656], or when the dispute is of a civil nature between private individuals [Hafizuddin, 50 A 414], or between such persons and the government [Kalipada Das v The State, AIR 1951 Cal 207 : (1950) 51 Cr LJ 1575]. The Magistrate cannot pass an order which in effect would interfere with the order of a Civil Court [Rahamatullah, 17 A 485 FB; Umatul, 32 C 154]. It is the duty of the Criminal Courts to uphold civil rights declared by Civil Courts [Venkatasubba, AIR 1927 M 368; Murari, AIR 1923 M 15].

Though the section confers very wide powers, it cannot be used as a charter to justify any and every order passed by a Magistrate which may be literally brought within its terms. “To take certain order with” (now “with respect to” as this apt phrase has been replaced in the new Code for bare word “with”) certain property in his possession are words which are very wide and vague. They do not give a Magistrate power to order a building which has fallen down on private grounds to be rebuilt by the owner [see Rahamatullah, 17 A 485, 488], or to remove or demolish a wall [Ramnarain, AIR 1942 Pat 414], or to seize goods in one’s custody and to hand it over to another [Indra San Rai v Enoyat Khan, AIR 1952 Pat 316 : 1952 Cr LJ 1124; Hafizuddin, AIR 1928 A 14]. [s 144.7] State Government.—

Page 6 of 20 [s 144] Power to issue order in urgent cases of nuisance or apprehended danger.— Power of the State Government on the Code of 1898 to extend the period indefinitely was held to violate Article19 (1) (b)(c)(d) of the Constitution [Kamla Kant Mishra v State of Bihar, AIR 1962 Pat 292 : 1962 (2) Cr LJ 203 : 1962 BLJR 236 on appeal AIR 1971 SC 1667]. See now section 144 (4) proviso limiting the extension to six months. [s 144.8] Guiding principles for the application of the section.— The following principles as to yields section 144.

(1) It is intended for use only in cases of grave emergency where immediate prevention or speedy remedy is essential in the interest of pubic (ante). (2) It is to be resorted to only when the Magistrate is satisfied that the use of other power would not be effective. He should therefore first consider whether the other sections (in chapters 8, 10B, 10D) are not sufficient or more appropriate to meet the necessities of the case (ante). Thus, when the dispute relates to land, ordinarily section 145 is the proper remedy [Sheobalak, 2 P 94 FB; Akal, AIR 1924 Pat 145 ; Puran, AIR 1935 Pat 224 ; Parkar, 11 Cal WN 271; Kalipada, AIR 1942 C 66 : 45 Cal WN 1090; Doman, AIR 1940 P 382], or in the case of a nuisance without any immediate danger section 133 should be applied [Mahammadi, 2 Cal WN 747]. (3) Legal rights should be regulated and not prohibited altogether for avoiding breach of peace or disturbance to public tranquillity, it is only in an extremely extraordinary situation, when other measures are bound to fail, that a total prohibition or suspension of their rights may be resorted to as a last measure [Gulam Abbas v State of UP, AIR 1981 SC 2198 : (1982) 1 SCC 71 : 1981 Cr LJ 1835 (SC)]. Even in cases where there are no declared or established rights, the power should be exercised in a fair manner in defence of legal rights rather than in suppressing them; in the repression of illegal rather than interference with lawful rights [Gulam Abbas v State of UP, AIR 1981 SC 2198 : (1982) 1 SCC 71 : 1981 Cr LJ 1835 (SC) sup; Sundram, 6 M 203, 211; Jasoda, sup; Municipal Committee, Dhanaula v District Magistrate Sangrur, AIR 1968 P&H 303 : 1968 Cr LJ 1116 ]. Even in an emergency, the order should be directed rather against the wrongdoers than the wronged [Gulam Abbas, sup; Jasoda, A 1939 SC 167 ; Md. Ismail 24 Cr LJ 154; Kazan, A 1927 L 430; Murari, 23 Cr LJ 689; Mahammad, 24 Cr LJ 154; Hafizul Ekbal v Gopal Sardar, AIR 1951 Cal 472 : (1951) 52 Cr LJ 856 : 53 Cal WN 487, 489]. (4) In a given situation, the power can be exercised temporarily to override private rights and restrain individuals from doing perfectly lawful acts, as in a conflict between public interest and private rights, the former must prevail [Md. Gulam Abbas v Mohammed Ibrahim, AIR 1978 SC 422 : 1978 Cr LJ 496 : (1978) 1 SCC 226 ; Gulam Abbas v State UP, AIR 1981 SC 2198 : (1981 Cr LJ 1835 : (1982) 1 SCC 71 (SC)]. As an order under section 144 interferes with the exercise of private rights, such interference ought to be reduced to a minimum and regulated by a full observance of the limitations imposed by the section [Ramnarain, AIR 1942 P 414; see Sumner, AIR 1933 C 348 : 34 Cr LJ 334]. The Magistrate must see that no more restrictive order is passed than is absolutely necessary for the end in view. (5) Orders of Civil Courts should not be interfered with and it is the duty of the Criminal Courts to maintain the rights declared by them [Gobind, 6 Cal WN 466; Rahamatullah, 17 AIR 485 FB; Ram Kr, A 1922 P 197; Venkatsubbayya, AIR 1927 M 611; Mahabir, AIR 1934 P 565; Abdul Jalil, 28 Cal WN 732; Subodh Gopal Bose v Dalmia Jain Co Ltd, AIR 1951 Pat 266 ; Havildar Venkatachallam v Sappar Palayam, AIR 1953 Mad 594 : 1953 Cr LJ 1119 : 1953 (1) Mad LJ 336; Kala Meah v Rai Mohan Saha, AIR 1958 Tri, 47 : 1958 Cr LJ 1554 ]. While every endeavour should be made to uphold the rights declared by Civil Courts, it would seem that as an order under section 144 passed in public interest must necessarily cause interference with legal rights of individuals (though not declared by a court), the mere existence of a right declared by the court should not be bar to an order in derogation of that right if the imminent danger cannot be averted in any other way [see K Murugappu Mudaliar v Kuppuswami Mudaliar, AIR 1949 Mad 212 : (1949) 50 Cr LJ 235 : 1948 (2) Mad LJ 458 : 61 Mad LW 797; Venkatasubba, AIR 1927 M 368 : 28 Cr LJ 325]. (6) No order under the section shall remain in force for more than two months, unless the State Government extends for such further period not exceeding six months from the date of expiry of the order.

Page 7 of 20 [s 144] Power to issue order in urgent cases of nuisance or apprehended danger.— Guiding principles for exercise of power under the section stated [Gulam Abbas v State of UP, AIR 1981 SC 2198 : (1982) 1 SCC 71 : 1981 Cr LJ 1835 (SC)].

Distinction between 133 and 144.—It has to be noted that sometimes there is confusion between section133 and section144 of the Code. While the latter is a more general provision the former is more specific. While the order under the former is conditional, the order under the latter is absolute. The proceedings are more in the nature of civil proceedings than criminal proceedings. One significant factor to be noticed is that the person against whom action is taken is not an accused within the meaning of section133 of the Code. He can give evidence on his own behalf and may be examined on oath. Proceedings are not the proceedings in respect of offences. The Water Act and the Air Act are characteristically special statutes. The provisions of section 133 of the Code can be called in aid to remove public nuisance caused by discharge of effluents and air discharge causing hardship to the general public [Suhelkhan Khudyarkhan v State of Maharashtra, AIR 2009 SC 1868 : (2009) 5 SCC 586].

In the absence of any emergency and imminent danger as required under section 144 Code of Criminal Procedure, 1973, order of Magistrate is without jurisdiction [In Re : Amar Chand Baid, 1997 Cr LJ 867 : 1996 (1) Cal LJ 481 : 1996 (1) Cal LT 314 : 1996 (3) Cur Cr R 510 (Cal)].

It was submitted that the prohibitory orders should not be allowed to be passed at the ipse dixit of the concerned executive officials. There must be transparent guidelines applicable. Since different fact situations warrant different approaches, no hard and fast guidelines which can have universal application can be laid down or envisaged. The situation peculiar to a particular place or locality vis-a-vis particular individual or group behaving or expecting to behave in a particular manner at a particular point of time may not be the same in all such or other eventualities in another part of the country or locality or place even in the same State. The scheme underlying the very provisions carry sufficient in-built safeguards and the avenue of remedies available under the Code itself as well as by ways of judicial review are sufficient safeguards to control and check any unwarranted exercise or abuse in any given case and the courts should ordinarily give utmost importance and primacy to the view of the Competent Authority, expressed objectively also, in this case without approaching the issue, as though considering the same on an appeal, as of routine. Keeping in view the fact that orders of the nature are more preventive in nature and not punitive in their effect and consequences [State of Karnataka v Praveen Bhai Thogadia (Dr.), AIR 2004 SC 2081 : 2004 Cr LJ 1825 : (2004) 4 SCC 684 : 2004 (2) Crimes 107 (SC)]. [s 144.9] Section 144 in Calcutta.— The Commissioner of Police, Calcutta, who under the old Code being appointed Presidency Magistrate used to be empowered under section 144 (1) to act under section 144 in the areas included within the presidency town of Calcutta, may also be empowered under the new Code under section144(1) to act under section 144 for the metropolitan area of Calcutta after being appointed a special executive Magistrate under section 21 for this purpose in relation to that area, as section 20(5) enables the State Government to do so. [s 144.10] Validity of ban on sale of lottery tickets.— Once the elements of operation of section 144 are found satisfied, the administrative authority was justified in improving ban on running of State lotteries within region of N.C.T. of Delhi, such restrictive order by authorities is not violative of section 144 of Code of Criminal Procedure, 1973 [Akhil Bharatiya Sarkari Lottery Vyapari Mahasangh v Commissioner of Police, New Delhi, 1999 Cr LJ 3600 (Del) : 1999 IVAD (Delhi) 593 : 80 (1999) DLT 561 : 1999 (50) DRJ 495 : 1999 (3) RCR (Criminal) 718]. [s 144.11] Section 144 in Bombay.— The Commissioner of Police, Bombay, who under the old Code used to be empowered to issue order under section 144 because of an enabling provision by a local amendment of the old Code, may also be now empowered under the new Code under section 144(1) to act under section 144 for the metropolitan area of Bombay after being appointed as special executive Magistrate under section 21 for this purpose in relation to that area, as section 20(5) enables the State Government to do so. [s 144.12] Procedure.— There is nothing to prohibit a superior Magistrate from re-enquiring and making an order under section 144(1)

Page 8 of 20 [s 144] Power to issue order in urgent cases of nuisance or apprehended danger.— when a subordinate Magistrate has already refused to pass an order on the same matter [Nainamal, AIR 1942 M 20]. If a proceeding is defective, there is nothing to prevent the Magistrate from cancelling it and initiating a fresh proceeding [Gauri Shankar v Emperor, AIR 1947 Pat 290 : (1947) 48 Cr LJ 93 : 1946 Pat WN 179 : 228 IC 378]. In passing an order a subordinate Magistrate must use his own judicial mind without being guided entirely by instruction of the District Magistrate [Govinda, 38 M 489]. Collectors report (especially when he is himself a disputant) must not be placed before the Magistrate [Kalipada Das v The State, AIR 1951 Cal 207 : (1950) 51 Cr LJ 1575 : 51 Cr LJ 1575].

Enquiry after ex parte order must be disposed of expeditiously, and if the Magistrate needlessly postpones the hearing for more than fifteen days, the party affected may go direct to the High Court under section 401 [Surendra, 37 Cal WN 962; or Sessions Judge under section399].

If part of an order is invalid or vague and the other part is clearly separable, the whole order is not bad [Ganesh, AIR 1931 B 135 : 32 Cr LJ 507; Thokcham Angau Singh v UT of Manipur, AIR 1961 Mani 12 : 1961 (1) Cr LJ 676]. No order can be made in respect of property outside the court’s jurisdiction [Rooplal, 2 Cal WN 572]. [s 144.13] Receiver.— When criminal proceedings have already been instituted under section 144, the plaintiff must seek appropriate remedy in the Criminal Court. Civil Court will not interfere by appointing a receiver [Rasi Dei, A 1965 Or 20]. [s 144.14] Conditions before section can be applied.— There is no express mention of an enquiry before making the order, but as sub-section (1) specifically requires that the order should set out the material facts, it would not be possible for the Magistrate to set out the facts unless he makes an enquiry or unless he is satisfied about the facts from personal knowledge or on a report made to him which he prima facie accepts as correct [Babulal Parate v State of Maharashtra, 1961 (3) SCR 423 : AIR 1961 SC 884 : 1961 (2) Cr LJ 16; Renubala Mitra v State of WB, 1981 Cr LJ (NOC) 135 : (1981) 85 Cal WN 623 (Cal)]. Information which satisfies the Magistrate that the matter is urgent, and immediate prevention or speedy remedy is necessary to avert the apprehended danger, is the foundation of his jurisdiction to act [Chandranath, 19 Cr LJ 951; Vattahara, AIR 1937 M 494; Ganesh, 38 Cal WN 388 : 35 Cr LJ 1252; Karoolal, 32 C 935; Motilal, AIR 1931 B 513; Radhadas, AIR 1929 P 714; Hafizuddin, 50 A 414; Kamini, 38 C 876; Gopalji Prasad v State of Sikkim, 1981 Cr LJ 60 (Sikkim); Sahid Khan Khudyarkhan v State of Maharashtra, 2009 (3) Pat LJR 42 (SC)]. He must have proper materials and no order can be passed on a mere petition [Chandra, 20 Cal WN 981; Hafizul Ekbal v Gopal Sardar, AIR 1951 Cal 472 : (1951) 52 Cr LJ 856 : 53 Cal WN 487infra].

The mandatory requirement is that the Magistrate should satisfy himself and from his own opinion on the basis of information received from various sources, including police report [Pramod Muthalik v District Magistrate, Davangere, 2003 Cr LJ 1783 (1786) (Kant) : 2003 (3) Crimes 510 : 2003 AIR Kant HCR 806]. [s 144.15] Public order and annoyance.— It is worth noting that (apart from sovereignty of India) the only permissible ground of restriction under Article19 (3) of the Constitution is public order, and action under section 144 has to be relatable to that object [Babulal Parate v State of Maharashtra, AIR 1961 SC 884 : 1961 (2) Cr LJ 16 (SC)]. [s 144.16] Evidence that can be acted upon.— It cannot be laid down as a general rule that evidence is to be taken [Jagrupa, 37 Cr LJ 96].

But the Magistrate cannot act upon—

(a) mere surmise, or (b) mere assumption, or (c) mere report of the police, or

Page 9 of 20 [s 144] Power to issue order in urgent cases of nuisance or apprehended danger.— (d) merely on personal inspection without giving the party concerned an opportunity of being heard [Bhyro, 11 WR 46; Banu, 11 WR 26; Govinda, 39 Cr LJ 302].

But in an emergency, the Magistrate is the best judge whether to act on report of police officer [Abdul Samad, AIR 1934 Oudh 87; Jang Bahadur, 25 Cr LJ 433; Ramnarain Sharma v Mahesh Narain Sharma, 1981 Cr LJ (NOC) 198 : (1981) 20 DLT 80 : 1981 Chand Cr C 120 (Del)]. In short, whether it be report of police officer or information from others of his own knowledge [Tirunarasimhachari, 19 M 18, 20; Nataraja, 47 M 56, 59], there must be dependable materials to satisfy him that there is “sufficient ground for proceedings under the section”, as the words used in the section emphasise its importance. Having satisfied himself, he must set out the material facts in the order and mere use of Form 24 Sch 2 does not make it valid [Thakin Aung, AIR 1939 Rangoon 181]. An order merely upon a petition not even verified is not legal. Before issuing order, Magistrate must ascertain upon evidence who is in possession and who the encroacher is. If necessary, only then he can issue an injunction which is a serious matter [Hafizul Ekbal v Gopal Sardar, AIR 1951 Cal 472 : (1951) 52 Cr LJ 856 : 53 Cal WN 487]. Before action a reasonable connection must be established between the act to be prohibited and the apprehended danger [Satyanarayana, AIR 1931 M 216]. A party has the right to know on what information did the Magistrate act and to get a copy of it [Srirammurthy, 32 Cr LJ 763, 764 : AIR 1931 M 236]. [s 144.17] Conferment of power on Additional District Magistrate [sub-section (1)].— Additional District Magistrates have to be specially empowered by Notification for exercise of powers under this section. The Notification relied on by the State in this case did not show proper conferment of powers. The order of the Additional District Magistrate preventing the petitioner from participation in a public meeting was held to be without jurisdiction. [Praveen Bhai Thogadia (Dr.) v State of Karnataka, AIR 2003 Kant HCR 876 : 2003 Cr LJ 1769 : 2003 (3) Kant LJ 435 : 2003 (2) Cur Cr R 156 (Kant)]. In another case, [Pramod Muthalik v DM, Devangere, AIR 2003 Kant HCR 806 : 2003 Cr LJ 1783 : 2003 (3) Crimes 510 : ILR 2003 Kant 1953 (Kant)], the leader of a political organisation was debarred from entering a district for a period of one month by a blanket order. Reason given was that his visit was likely to create communal tension by reason of his inflammatory public speeches and result in breach of peace. The incriminating material and a copy of the FIR were not furnished. The court said that the opportunity to be provided to the affected person could not be supposed to be an illusory formality. The blanket order passed by the Magistrate being too harsh and excessive and was, therefore, bad in law. It was found to be not sustainable. [s 144.18] Magistrate empowered.— Order of a Magistrate not empowered is void [section 461(J)]. A Magistrate in-charge of the current files of the sub-divisional Magistrate, during his absence, can act [Abdul Majid, 35 Cr LJ 88 : AIR 1934 C 393]. The record must show clearly the authority under which he professes to act [Thundamawara, 1 R 49]. The Magistrate cannot delegate his functions to another Magistrate [Summer, AIR 1933 C 348]. Magistrate passing an order does so as a “Court” [Arunachalam, 42 M 64—Contra : Natraja, 47 M 56].

When the dispute is between the Collector or the District Magistrate and a private person, a Magistrate of the District is hardly an appropriate tribunal to decide it [Kalipada Das v The State, (1950) 51 Cr LJ 1575 : AIR 1951 Cal 207].

The Magistrate is empowered to pass an order of conversion within period of 2 months from date of initiation of proceedings and not beyond that [Monilal Bakshi v Dipak Ranjan Bakshi, 2001 Cr LJ 3776 : 2001 (3) Gau LR 256 (Gau)]. [s 144.19] Form and content of order.— It must be a written order [Pitamber, 17 WR 57] containing material facts to show that it was justified and noncompliance whereof would vitiate the order [Gopalji Prasad v State of Sikkim, 1981 Cr LJ 60 (Sikkim)]. Not a mere recital that in the Magistrate’s opinion there was sufficient ground for proceeding [Blong, AIR 1924 P 767 : 25 Cr LJ 1178]. It must state the material facts on the basis of which the order is passed [Karoolal, 32 C 935; Thakin Aung, AIR 1939 R 181; Motilal, AIR 1931 B 513; Chandra, AIR 1942 L 171; Venkataramana, 22 Mad LT 323] giving reasons for proceeding against the person [Ardeshir, AIR 1940 Bom 42 : 1939 (41) BomLR 1253] and the mere use of Form 24, Sch 2 does not make the order valid [Thakin Aung, sup].

Page 10 of 20 [s 144] Power to issue order in urgent cases of nuisance or apprehended danger.— The order must clearly state who are prohibited and what are they prohibited from doing or requiring to do [Ganesh, AIR 1931 Bom 135 : 130 Ind. Cas. 396 : ILR 1931 55 Bom 322; Ardeshir, sup; Sorab, AIR 1935 B 33; Thakin Aung, sup;Bhagwati, AIR 1940 A 465; Renubala Mitra v State of WB, 1981 Cr LJ (NOC) 135 : (1981) 85 Cal WN 623 (Cal)]. It must be specific and definite in terms and not vague. Thus, an order directing not to go to a particular village [Golam Md., 2 Cal WN 422], or “not to commit an act that may likely induce a breach of the peace” [Kulsum, 11 Cal WN 121], or not to hold a hat on Sunday next—Order to stand good for two months” [Ambika, 36 Cal WN 248], or an order addressed to “you and any other persons who are or may be concerned” [Ganesh, AIR 1931 B 136], or an order to abstain from doing which another person disapproves [Ardeshir, sup] is indefinite and ambiguous. Prohibition of an assembly of five or more in public places within the municipal town—The words “public places” were ambiguous and order not in accordance with law [Thokchom Angau Singh v UT of Manipur, AIR 1961 Mani 12 : 1961 (1) Cr LJ 676].

The section does not contemplate any conditional order, e.g., either to refrain from or to show cause [Bholagiri, 40 Cal WN 640 : 37 Cr LJ 696 : Gopalji Prasad v State of Sikkim, 1981 Cr LJ 60 (Sikkim); see however Balaram, 41 Cal WN 897]. The duration of the order must be co-extensive with the emergency [Muthialu, 2 M 140; Ramnad, 33 Cr LJ 605]. [s 144.20] Order to be issued to whom.— Orders under sub-sections (1) and (2) are confined to an individual person or persons, and not to the general public [Sainarain, AIR 1939 A 746]. Order under sub-section (3) may be directed to an individual or to persons residing in a particular place or area or to the public generally when frequenting or visiting a particular place or area. Ordinarily, the order would be directed against a person found acting or likely to act in a particular way. A general order may be necessary when the number of persons is so large that distinction between them and general public cannot be made without the risks mentioned in the section [Madhu Limaye v SDM Monghyr, AIR 1971 SC 2486, 2497 : 1971 Cr LJ 1720 : (1970) 3 SCC 746]. Meaning of public generally [Abdul Gaffur, 16 Cr LJ 190; Turab, AIR 1942 O 39]. The order under sub-section (3) cannot be directed to a portion of the community or a portion of the public [Jokhu, 8 A 99; Hari, 14 B 185] See post : Sub-section (3). [s 144.21] Service of order.— See section 134 ante, Burden of proof [Aswani, A 1931 C 262]. Order must be served in the manner provided in section 134. It is strange to address an order to the Superintendent of Police for service and stranger still for the latter to order the Magistrate [Hafizul Ekbal v Gopal Sardar, AIR 1951 Cal 472 : (1951) 52 Cr LJ 856 : 53 Cal WN 487]. [s 144.22] “Any person”.— I.e., any particular individual or individuals; see section 11 of Indian Penal Code, 1860. “As to the general public, see post : Sub-section (3)”. [s 144.23] Sub-section (1) : “Abstain from a certain act”.— (See section 33 of Indian Penal Code, 1860). “Certain Act” means a definite act [Abhayeswari 16 C 80; Ananda, 19 C 127; see Ramanadhan, 24 M 45; Premchand, 9 Cal WN 392; Meyyam, 15 Cr LJ 145], e.g., to abstain from interference with the management of a temple [Ramanuja, 3 M 354; Abbi, 18 M 402; 2Weirs, 91], or the conduct of service [Srinivasachariar, 19 Cr LJ 933]. Order prohibiting an act until the dispute is settled by Civil Court is indefinite [Muthukumaraswami, AIR 1922 Mad 76 ; 67 Ind. Cas. 500 : 1922 15 LW 423 : (1922) 42 Mad LJ 352 : 1922 MWN 177].

Though most of the “acts” contemplated are such that if not prevented, they will develop into an offence, the section applies also to acts which if completed would furnish grounds for civil action (e.g., infringement of easement right) [Rashid, 46 Cal WN 136 : AIR 1943 C 35].

Requiring to “abstain from certain acts” is to pass a negative or restrictive order. Positive or mandatory order is not authorised [Sasmal, 58 C 1037 : 32 Cr LJ 502; Satish, 39 Cal WN 1053; Bimala, 40 Cr LJ 144; Ramnarain, A 1942 P 414; Kusum 38, Cal WN 115; see however Balaram, 41 Cal WN 897; Har Kishun Singh v Chhotan Mahton, AIR 1951 Pat 494 : (1951) 52 Cr LJ 638; Lachminarayan, AIR 1940 Pat 57. In the last case, reliance is placed on the words “to take certain order with property”etc.]. [s 144.24] “Take certain order with respect to certain property, etc.”—

Page 11 of 20 [s 144] Power to issue order in urgent cases of nuisance or apprehended danger.— These words are very wide and equally vague and there must be a reasonable construction put on “these vague words” [Rahmtullah, 17 A 485, 488]. As to “property” it has been held that section 144 relates to interference or dealing of some kind with the land itself or with something erected or standing upon it [Anand, 19 C 127 (order prohibiting collection of rent illegal); see Rupan, AIR 1944 P 213; Kalipada, AIR 1942 C 66; lsab, 8 Cal WN 373]. An order which is in its nature irrevocable, e.g., to cut down valuable trees, is illegal [Uttam, 3 WR 72]. Following orders are illegal : to take idols to the complainant’s house for worship there [Kamal, 8 Cal WN 376]; to remove disputed property into custody of the court [Lenog, 2 Cal WN 1044]; to remove the houses of prostitutes to the opposite side of railway lines [Bireshwar, 2 Cal WN 70]; to direct a man not to establish a “hat” in his own land because of apprehended rivalry with another “hat” in the vicinity [Rakhal, 19 Cal WN 248].

Jurisdiction to direct removal of obstruction is confined to cases of “annoyance or injury.....affray” [Sreenath, 23 WR 34].

Annoyance includes both physical and mental annoyance [Ganesh, 32 Cr LJ 507 : 55 B 322].

Injury (see section 144 of Indian Penal Code, 1860). For an order under section 144, injury to property as distinguished from danger to or safety of human life occupying the property has very little relevance [Ganesh, 38 Cal WN 388]. Whenever a certain act taken with certain property in possession of the offender amounts to an injury to any person (e.g. infringement of easement right), he can claim protection of the section [Rashid, 46 Cal WN 136, 137]. But orders merely for protection of property [The Empress v Prayag Singh, ILR (1983) 9 Cal 103], or prevention of pecuniary loss [Ramautar, 13 Cal WN 188], or loss of rent [Isab, 8 Cal WN 373] are not within the section.

An order directing the respondent to remove a bund obstructing the flow of water is beyond section 144, as it is unlimited in duration and permanent in effect. [Parathodu Panchayat v Kanjirappally Panchayat, 1984 Cr LJ 971 : 1984 Ker LT 204 : 1984 (1) CrLC 401 : 1984 Ker LJ 84 (Ker). [s 144.25] Property dispute.— Petitioner company engaged in construction business to construct apartment. Respondent husband and wife forcibly occupied flat on strength of exparte prohibitory order passed by District Magistrate under section 144. Above order passed at instance of respondents restraining petitioner company from entering into the flat. The exparte order was set aside and respondent was directed to vacate disputed flat as nothing emergent warranted passing of impugned order [Heritage Engineers and Developers Pvt Ltd v State, 2007 Cr LJ 1464 (Gau) : 2007 (1) GLT 725].

The owner of the land constructed boundary wall over the land, and the respondent forcibly resisted the construction. There was a dispute between the parties over the use of the pathway for a long time. It was that the dispute between the parties could be decided by the Civil Court and the order passed by the Magistrate permitting petitioner to raise boundary wall and directing the police to enforce the order was without his jurisdiction [Kalpana Sen v State of WB, 2007 Cr LJ (NOC) 346 (Cal)]. [s 144.26] Orders relating to— (a) Hats or markets.— Holding a hat on one’s own land is a lawful act [Rakhal, 19 Cal WN 248; Banwari, 26 Cal WN 663; Saligram, 35 Cr LJ 1057] and a new hat cannot be prohibited because there is an old hat [Sumner, AIR 1933 C 348; Rambarik, AIR 1940 P 185; Maharam, 50 Cal WN 615]. The Magistrate cannot interfere with the exercise of such right unless the owner or his men do some unlawful act likely to cause breach of peace [see Banwari, sup; Ramgopal, 32 Cal WN 613; Rambarik, sup]. In order to prevent a riot or affray, Magistrate can prohibit a man from holding hat on his own land [Hansraj, A 1935 P 461], but the proper way to prevent such disturbance is to take action against the wrongdoers under section 107 [Bidhuranjan, 11 Cal WN 223; Satish, 11 Cal WN 79; Saligram, sup; Hansraj, sup].

If holding of contiguous hats on same days is likely to lead to a breach of the peace, the Magistrate may

Page 12 of 20 [s 144] Power to issue order in urgent cases of nuisance or apprehended danger.— prohibit the holding of a rival hat on the same day with the old hat [Bycuntram, 18 WR 47Cr FB; Nagendra, 23 Cal WN 141; Parameshwar, 3 PLT 268]. But he cannot direct the holding of hat on specified days leaving the party no option to hold on other days [Syamanand, 31 C 990]. Right of holding new hat on days different from the old hat cannot be interfered with [Maharam, 50 Cal WN 615].

Where the Civil Court has granted a temporary injunction against a party in a dispute relating to collection of toll in a bazar, the Magistrate’s order restraining both the parties is bad. He should give effect to the order of the Civil Court [Kala Meah v Rai Mohan Saha, AIR 1958 Tri 47 : 1958 Cr LJ 1554 ]. (b) Processions.— Persons of whatever sect are entitled to conduct (religious) processions through public street provided that they do not interfere with the ordinary use of the streets by the public and subject to such directions as the Magistrates may lawfully give to prevent obstructions of the thoroughfare or breaches of the public peace [Manzur Hasan, 52 IA 61 : AIR 1925 Indian Penal Code, 1860 36; see Md. Jalil, AIR 1931 A 341]. The Magistrate can place restraint upon procession [Shanmuga, 39 Cr LJ 1886], or stop a procession only when he is satisfied that breach of the peace cannot be prevented in any way [Arumuga, 15 Cr LJ 30 : 22 IC 174; see Parthasarathi, 5 M 304, Muthialu, 2 M 140; Sundram, 6 M 203 FB]. An absolute prohibition of all processions in all streets at all times is prima facie unreasonable [Ramnad, AIR 1932 M 294 : 1932 35 LW 366 : (1932) 62 Mad LJ 392].

Where in an order in any area under section 144, only religious and funeral processions were excepted, it is not bad as persons interested in taking out processions for other purposes could have applied for to the Magistrate for alteration of the order [Babulal Parate v State of Maharashtra, AIR 1961 SC 884 : 1961 (2) Cr LJ 16 : 1961 (3) SCR 423 ].

If a procession is conducted in accordance with the decree of a Civil Court., Section 144 is not intended to deprive the citizens of that lawful right. Those who obstruct may have to be bound over or it may be necessary to introduce armed force [Venkata Subbayya, AIR 1927 M 611 : 28 Cr LJ 509]. But, even, if there be a Civil Court decree, it is not the duty of the authorities responsible for the public peace to enforce the decree in all circumstances and at all costs [Viswanatha, 51 M 1006 : 30 Cr LJ 31; KMurugappa Mudaliar v Kuppuswami Mudaliar, AIR 1949 Mad 212 : (1949) 50 Cr LJ 235 : 1948 Mad WN 685 : 1948 (2) Md LJ 458; Venkatasubba, A 1927 M 368 : 28 Cr LJ 325; see Pir Gul, A 1939 SC 230 ].

An order prohibiting the petitioner from taking out an immersion procession of Goddess Durga and from passing in front of a mosque with music or musical instruments on a particular day encroaches upon the right guaranteed by Articles25 and 26 of the Constitution and is wholly unwarranted [Prabhas Kumar Ray v The Officer-in-charge of Raninagar Police Station, 1985 Cr LJ 957 Cal : (1985) 89 Cal WN 529 : (1985) (1) Cal HN 197]. (c) Press.— The right of newspapers to publish any news and make any comments can be restricted only if the facts clearly make it necessary in the public interest [Ardeshir, AIR 1940 B 42]. The liberty of the press should be interfered with very sparingly and only for good cause [Chandra, AIR 1942 L 171 FB]. Imposition of pre-censorship on newspapers in the interest of public order is not inconsistent with Article 19(1)(a) of the Constitution [Virendrav Punjab State, AIR 1957 Punj 1 : 1957 Cr LJ 88 : 58 Punj LR 464 : ILR (1957) Punj 218 ]. Mere “annoyance” caused to government officials by reckless or even defamatory articles cannot be dealt with under section 144 [Re : Bandi Butchaiah, AIR 1952 Mad 61 : 1952 Cr LJ 161 : 1951 (2) Mad LJ 374 : 64 Mad LW 874]. (d) Public speech.— Freedom of speech is guaranteed subject to certain reasonable restrictions (see Article19 of the Constitution). Freedom of speech is meant to be enjoyed in a manner consistent with the maintenance of peace and order [Jagannath, AIR 1940 N 134]. Right of public speaking ought not to be muzzled merely because those who dislike the opinions expressed threaten opposition. On a proper occasion, this right may have to be encroached upon in the interest of public peace [Srikanta, AIR 1937 M 311].

Page 13 of 20 [s 144] Power to issue order in urgent cases of nuisance or apprehended danger.— Order prohibiting the showing of “provocative slogans” is not vague as the expression is to be understood in the context in which it has been used [Babulal Parate v State of Maharashtra, AIR 1961 SC 884 : 1961 (2) Cr LJ 16 : 1961 (3) SCR 423 ].

Courts should not normally interfere with matters relating to law and order which is primarily the domain of the concerned administrative authorities. They are by and large the best to assess and handle the situation depending upon the peculiar needs and necessities, within their special knowledge. Their decision may involve to some extent an element of subjectivity on the basis of materials before them. Past conduct and antecedents of a person or group or an organisation may certainly provide sufficient material or basis for the action contemplated on a reasonable expectation of possible turn of events, which may need to be avoided in public interest and maintenance of law and order. Therefore, whenever the concerned authorities in charge of law and order find that a person’s speeches or actions are likely to trigger communal antagonism and hatred, resulting in fissiparous tendencies gaining foothold undermining and affecting communal harmony, prohibitory orders need necessarily to be passed, to effectively avert such untoward happenings. The valuable and cherished right of freedom of expression and speech may at time have to be subjected to reasonable subordination of social interests, needs and necessities to preserve the very chore of democratic life—Preservation of public order and rule of law. At some such grave situation at least the decision as to the need and necessity to take prohibitory actions must be left to the discretion of those entrusted with the duty of maintaining law and order and interposition of courts—Unless a concrete case of abuse or exercise of such sweeping powers for extraneous considerations by the authority concerned or that such authority was shown to act at the behest of those in power and inference as a matter of course, as though adjudicating an appeal, will defeat the very purpose of legislation and legislative intent. The High Court should not gloss over the basic requirements by saying that the people of the locality where the meeting was to be organised were sensible and not fickleminded to be swayed by the presence of any person in their amidst or by his speeches. Such presumptive and wishful approaches at times may do greater damage than any real benefit to individual rights as also the need to protect and preserve law and order. The court was not acting as an appellate authority over the decision of the official concerned. Unless the order passed is patently illegal and without jurisdiction or with ulterior motives and on extraneous considerations of political victimisation by those in power, normally interference should be the exception and not the rule. The court cannot in such matters substitute its view for that of the competent authority [State of Karnataka v Praveen Bhai Thagodia (Dr.), AIR 2004 SC 2081 : 2004 Cr LJ 1825 : (2004) 4 SCC 684 : 2004 SCC (Cri) 1387 : 2004 (2) Crimes 107 (SC)]. (e) Immovable property.— In disputes regarding land, this section is to be used very sparingly and only in cases of urgency as there is a special section for it (section 145). So it has been held in various cases that section144 is to be availed of only in a temporary emergency where “immediate prevention or speedy remedy” is necessary and the danger cannot be otherwise averted [Madho, AIR 1942 P 331; Sheobalak, 2 P 94 FB : AIR 1922 P 435; Harihar, 35 Cr LJ 1009; Agnikumar, 32 Cal WN 1173, 1183 FB]. The High Court deprecates the habitual and unjustifiable use of section 144 as a substitute for sections 107 and 145 [Domon, AIR 1940 P 382; Viru Kamu, AIR 1940 SC 158 ; Sheobalak, sup] (f) Schools.— School affair with impact on peace can be dealt with as in Bal Bharti Nursery School Allahabad v District Magistrate, 1990 Cr LJ 422 All : 1989 All LJ 139 : 1989 (1) UPLBEC 545 : 1989 (1) Cr LC 761.

Section 144 has under application and is applicable in various circumstances including breach of peace arising from disputes relating to land; section 145 is of limited scope and applies only where there is a danger of breach of peace due to such dispute. Section 144 is discretionary, while section 145 is mandatory. Therefore, where the special condition of section 145 is fulfilled section 144 yields to section 145 [Sheobalak, sup; Viru Kamu, sup; Govindram, AIR 1929 P 46 48]. (g) Bona fide disputes.— The consensus of opinion is that where there is a bona fide dispute regarding the possession of land requiring a decision on the question, the proper section to apply is section 145. But, where one party not in good faith is merely setting up a pretence of a claim and is trying to get into possession by pretending that a breach of the peace is apprehended, action may be taken under section 144 [Lachman, AIR 1929 P 415 : 30 Cr LJ 510; Jagrupa, 7 Cr LJ 95; Bhuneshwar, 41 Cr LJ 417; Kaniz, 19 Cr LJ 869; Sheobalak, 2 P 94 FB; Munni, 26 Cr LJ

Page 14 of 20 [s 144] Power to issue order in urgent cases of nuisance or apprehended danger.— 1229; Domon, AIR 1940 P 382; Bhairo, 21 Cr LJ 646; Parkar, 11 Cal WN 271; Govinda, 30 Cr LJ 302; Tarapada, 21 Cr LJ 241 : Bimala, 40 Cr LJ 14; Kalipada, AIR 1942 C 66; Inderdeo, AIR 1936 P 59; Jayanti, 27 C 785; Kishori, 31 Cr LJ 1005; Bhikhali, AIR 1940 P 471; Saddique, 32 Cr LJ 208; Sairu Seikh v Shyamlal Sardar, AIR 1952 Cal 200 : 1952 Cr LJ 566 ]. An order under section 144 should not be made without ascertaining upon evidence who is in possession [Hafizul Ekbal v Gopal Sardar, AIR 1951 Cal 472 : (1951) 52 Cr LJ 856 : 53 Cal WN 487]. An injunction under the section can only be made for protecting existing possession and not to oust one who is in possession [Sairu Shk., sup]. When is section 107 or section 145 to be applied [Ratanchand, AIR 1922 P 228; Jagrupa, 37 Cr LJ 95].

A proceeding initiated under section 144 may be converted into one under section 145 if found more appropriate [Nandkishore, 1922 P 557 : 23 Cr LJ 200; Gopala, 21 Cr LJ 73 : Gobindram, AIR 1929 P 46; Sheobalak, 2 P 94 FB]. The conversion order must be passed before expiry of order under section 144 [Hadukhan v Mahadev Das, AIR 1968 Ori 221 : 1968 Cr LJ 1623 : 34 Cut LT 537]. (h) Effect of order on possession.— A finding in a case under section 144 as to possession is no bar to a proceeding under section 145 in respect of the same lands, if the Magistrate is satisfied that there is a likelihood of the breach of the peace over the disputed lands [Taru Majhi, 57 Cal WN 311]. In view of the peculiar jurisdiction, under the section, an order under it should not be treated in subsequent proceedings as evidence of possession [Madho, 1972 P 33 : Gita Pd. AIR 1925 P 17; see Bhagwat, AIR 1940 P 364; Kishori, 36 C 370 : Jayanti, 27 C 785; Sashimukhi, 31 Cal WN 310; Uditnarayan, 39 Cr LJ 778; Ramkishan, 39 Cr LJ 361]. It has not the force of an order under section 145 and is of no use in determining the question of actual possession [Munnilal, 26 Cr LJ 1229; Jagannath, AIR 1933 P 584]. Such an order decides nothing about the respective rights of parties [Chrestien, AIR 1939 P 512]. (i) Right or title.— In any proceeding under section 144, the Magistrate has no jurisdiction to adjudicate upon rights or to decide question of title or possession by usurping the functions of a Civil Court [Hafizuddin, 50 A 414; Appala, 11 Mad LJ 122; Ramanarain, AIR 1942 P 414; Chhakan, AIR 1935 P 145; Joint-agents, AIR 1933 P 185; Daimulla, 27 C 918 : Low & Co, 3 P 809; Subodh Gopal Boss v Dalmia Jain Co Ltd, AIR 1951 Pat 266 ; Indrasan Rai v Enayat Khan, AIR 1952 Pat 316 : 1952 Cr LJ 1124 ]. The question as to ownership of chars involving difficult questions should not form the subjectmatter of section 144 proceeding [Kalipada Das v The State, AIR 1951 Cal 207 : (1950) 51 Cr LJ 1575 ].

In the instant case, the petitioner constructed a residential house on a plot purchased by him. The respondent allegedly filed a title suit with ulterior motive. The, respondent filed a petition for injunction restraining the petitioners from raising construction which was rejected. The respondent, with a view to defeat the interest of the petitioner, initiated proceedings under section 144 for deciding question of possession. The proceedings under section 144 were converted into one under section 145 of Code of Criminal Procedure, 1973. The order passed by the Magistrate was held liable to be set aside [Sheela Devi v State of Jharkhand, 2009 Cr LJ (NOC) 918 (Jhar)]. (j) Eviction of tenant.— There was tenancy agreement between parties but Executive Magistrate without calling the records from police passed prohibitory order against tenant restraining him from entering premises on basis of averment in application. Evidence produced by tenant showed that inspite of interim order passed in writ filed by tenant for maintaining status quo, possession had not been handed over to tenant. It was held that order of Executive Magistrate was liable to be set aside [Sujit Kumar Das v State, 2007 Cr LJ 2700 (Gau) : 2007 (53) All Ind Cas 565]. (k) Religious matters.— Right to profess religion is not absolute right, but must yield to maintenance of public order. It is for the District Magistrate to exercise his powers in consonance with section 144 of Code of Criminal Procedure, 1973.

The maintenance of law and order is a function of the District Magistrate and the District Magistrate, with a view to avoiding any possible breach of peace would take the necessary steps well in advance for the purpose of maintaining public order which would be in the larger interests of the society. It is but for the District Magistrate

Page 15 of 20 [s 144] Power to issue order in urgent cases of nuisance or apprehended danger.— to exercise his powers in consonance with the provisions of section 144 of Code of Criminal Procedure, 1973 [Ishtiaq Hussain Farooqui v State of UP, 1988 Cr LJ 189 : AIR 1988 SC 93 : 1987 SCC (Cri) 157 ]. (l) Person in possession not to be disturbed.— Magistrate has no jurisdiction to deal with possession of any property or building. Therefore, order passed under section 144(1)(2) directing eviction of petitioners from building under dispute by replacing respondents therein was held to be without jurisdiction [AK Modi v State, 2006 Cr LJ 4337 (Ker) : 2006 (4) Crimes 142 : 2006 (2) Ker LT 313 : ILR (2006) 2 Ker 284 ]. (m) Compulsory deposit of arms.— Compulsory deposit of firearms during elections. Competent authority under Arms Act (1950) is authorised to pass order for deposit of fire arms during election. Such powers cannot be delegated to another person especially to Station House Officer. It was held that order directing Section House Officer to make all licence holders in his jurisdiction to deposit their weapons was illegal and unwarranted [Uma Kant Yadav v State, 2007 Cr LJ 2540 (All)]. [s 144.27] Debarring entry of religious leader in Virat Hindu Mela.— In a Karnataka case, order delivering entry of VHP leader in Virat Hindu Mela was passed on the basis of media reports that earlier alleged speech of the said leader has caused communal violence and affected peace and tranquillity in the area. The situation in “Mela” area was normal and under control at the relevant time. Order being discriminatory and passed on extraneous considerations was held liable to be quashed [Praveen Bhai Thogadia (Dr.) v State of Karnataka, AIR 2003 Kant HCR 2759 : 2003 Cr LJ 4502 : 2003 (6) Kant LJ 2759 (Kant)].

Prohibiting entry of political leader.—A blanket order prohibiting entry of the petitioner, a political leader, in the district for one month, merely on the ground that his inflammatory speeches would create tension in the area without providing material to the petitioner would be bad in law and liable to be set aside [Pramod Muthalik v District Magistrate, Devengere, 2003 Cr LJ 1783 at 1786 (Kant) : 2003 (3) Crimes 510 : ILR 2003 Kant 1953]. [s 144.28] Sub-section (2), Ex-parte order.— Ordinarily notice should be issued before order. Ex parte order can be passed on (1) in cases of emergency [Mohammadi, 2 Cal WN 747; Tirunarasimha, 19 M 18, 20; Jayanti, 27 C 785; K. Jokhu, 8 A 99; Abdul Majid, 38 Cal WN 556; DS Joseph v State of UP, 2005 Cr LJ 700 (All)] or (2) where the circumstances do not admit of service of notice in due time [Mahammadi, sup; Abdul Majid, sup] and in ex parte orders, the record should disclose the existence of emergency [Ventatramana, 19 Cr LJ 56; Kala Meah v Rai Mohan Saha, AIR 1958 Tri 47 : 1958 Cr LJ 1554] and if no emergency is found, the order will be set aside [Mohammadi, sup]. Order even if passed ex parte should not be bald but should contain at least some reasons to show that the Magistrate applied his mind and was satisfied about the existence of factors necessary for action [Bijimibemula Linga Murthy Reddy v Binji Hussain Saheb, 1979 Cr LJ 1147 (AP)]. Mere statement that Magistrate is satisfied that there is every possibility for serious breach of peace between the parties as well as public tranquillity is not sufficient to exercise power of passing ex parte order. A duty is cast upon the Magistrate to project the factual situation pertaining to urgent and emergent circumstances in rendering the ex parte order [Premoda Medhi v Gauhati Roller Flour Mills Ltd, 2003 Cr LJ 122 (123) : 2003 (1) Gau LR 205 (Gau)]. Where the dispute was dragging on for months and there was no desperate urgency and no suggestion that heads were likely to be broken, an ex parte order on report of police is illegal [Kalipada Das v The State, AIR 1951 Cal 207 : (1950) 51 Cr LJ 1575]. The persons affected have a right to challenge an ex parte order under sub-section. (7) [Babulal Parate v State of Maharashtra, AIR 1961 SC 884 : 1961 (2) Cr LJ 16 : 1961, 3 SCR 423], Duty of the Magistrate does not stop with the ex parte order. He should give an early opportunity to the aggrieved party to show cause in order to see whether the order should be confirmed, modified or varied [Ramnad, AIR 1932 M 204 : 33 Cr LJ 605; Kala Meah v Rai Mohan Saha, AIR 1958 Tri 47 : 1958 Cr LJ 1554]. In the instant case, the order itself observed that the police report was dated 5-August-2004, yet the order under section 144 of Code of Criminal Procedure, 1973 was passed after 14 days on 19-August-2004. The order did not indicate any fresh emergency or incident justifying passage of the order on 19-August-2004 without giving any notice of opportunity to the affected parties, which was to remain in force for a month. The city Magistrate was directed by the High Court to consider the appropriateness of continuing the impugned order [DS Joseph v State of UP, 2005 Cr LJ 709 (All)].

The legislature itself has drawn a distinction between cases of urgency, where the circumstances do not admit

Page 16 of 20 [s 144] Power to issue order in urgent cases of nuisance or apprehended danger.— to serving of a notice in due time upon the person against whom such an order is directed and the cases where the order could be passed after giving a notice to the affected party. Thus, it is not possible to lay down any straight jacket formula or an absolute proposition of law with exactitude that shall be applicable uniformly to all the cases/situations. In fact, it may not be judicially proper to state such a proposition. It must be left to the discretion of the executive authority, vested with such powers to examine each case on its own merits [Ramlila Maidan Incident, In Re, (2012) 5 SCC 1 : 2012 Cr LJ 3516 (SC) : 2012 (2) Scale 682].

After an ex parte order, early opportunity should be given for getting the order rescinded or altered-Dutyof Magistrate [Ramnad, AIR 1932 M 294 : 33 Cr LJ 605]. Such application should be dealt with promptly without postponing the hearing until about the expiry of its force [Banwari, 26 Cal WN 663; see Abdul Majid, 38 Cal WN 556; Mooka, AIR 1937 M 167] and it has been held that no notice on the opposite party is necessary [Mooka, sup]. If hearing is needlessly postponed, the party may go direct to the High Court in revision [Surendra, 37 Cal WN 962, ante]. [s 144.29] Sub-section (3), Order to.— The public generally when frequenting (see ante “Order to be issued to whom”). It is an exception to the general rule that the order should be directed to a particular person. It embraces order to the public generally who in particular circumstances cannot be individually addressed [Abdul Gaffur, 16 Cr LJ 190; Motilal, AIR 1931 B 513; Turab, AIR 1942 O 39]. But it can be directed to persons residing in a particular place or area or to the public generally only “when frequenting or visiting a particular place”. This qualifying clause cannot be ignored [Bhagubai, AIR 1914 B 198 : 16 Cr LJ 98; Ashutosh, 29 Cal WN 411, 413; Abdul Majid, 38 Cal WN 556; Satnarain, AIR 1939 A 746; Babu, 41 Cr LJ 228; Motilal, AIR 1931 Bom 513 ; 1931 (33) BomLR 1178 : 134 Ind. Cas. 1237]. Thus, an order to the public generally to abstain from attending a hat [Ashutosh, sup] or giving caste dinners on account of the prevalence of cholera [Laksmidas, 41 B 165], or printing or publishing false or alarmist reports [Sanatairan, sup] or interfering with the destruction of dogs [Bhogubai, sup] is bad as no order can be issued to the public except when frequenting or visiting a particular place or area.

Another interpretation put is that sub-section (3) empowers a Magistrate not only to direct an individual to abstain from a certain act but also the public generally to abstain from a certain act, provided the prohibition is limited to occasions on which the members of the public may frequent or visit a particular place. The prohibition of the frequenting or visiting of the particular place is not contemplated, but the prohibition of some act on the occasion such place is frequented or visited [Abu Hussain, 44 Cal WN 641 : see Afaq Hussain, AIR 1941 A 70 FB : 42 Cr LJ 298]. Where on account of clashes between the members of two rival textile unions, the Magistrate passed an order under section 144 restricting activities of the general public in particular areas, the order was upheld as it would be extremely difficult to differentiate between members of the public and members of the two unions. It was open to any member of the public aggrieved by the order to apply for its modification [Babulal Parate v State of Maharashtra, AIR 1961 SC 884 : 1961 (2) Cr LJ 16 : 1961 (3) SCR 423]. Section 144 gives power to issue order by which the public are not prohibited generally from entering a town but are directed to abstain from a certain act, namely, forming a procession or gathering or assembly when frequenting any street or public place in that town [Saroj, 48 Cr LJ 747]. [s 144.30] Meaning of “Particular place”.— Decision below referring to old qualifying clause “public generally” “when frequenting or visiting particular place may” be of assistance in understanding the present amplified qualifying clause. “Particular place” does not necessarily mean a restricted area like a market or a park, but an area sufficiently particularised and specified. It would include a part of a town [Vasant, 59 B 27; see however Motilal, AIR 1931 B 513; Belvi, AIR 1931 B 325], or a city [Sorab, AIR 1935 B 33] or a sub-division [Niharendu, 43 Cal WN 1061], or a district although it might be difficult to enforce the order [Abdul Karim, L 80; Abu Hussain, 44 Cal WN 641, 645]. “Particular place” may be a large area and all that is necessary is that it should be sufficiently defined so that there can be no doubt or mistake [Afaq Husain, AIR 1941 A 70 FB; Bhagwati, AIR 1940 A 645; Qumaruddin, AIR 1935 L 679; Madan, AIR 1940 P 446; Taturam Sahu v State of Orissa, AIR 1953 Ori 96 : 1953 Cr LJ 731 : 17 Cut LT 48]. The words “frequenting or visiting a particular place” include the residence of the particular place” and the word “place” would include an area within the specified boundaries [Thokchom Angau Singh v UT of Manipur, AIR 1961 Mani 12 : 1961 (1) Cr LJ 676]. Act of residing in a place includes the act of frequenting or visiting it [Afaq Husain, sup; Bhagwati, sup; Turab, A 1942 O 39].

Where a person questions an order against the public generally on the ground that it has trespassed on his

Page 17 of 20 [s 144] Power to issue order in urgent cases of nuisance or apprehended danger.— fundamental rights under Article 19 of Constitution, the reasonableness or the restrictions can be examined only in so far as it affects the petitioner’s rights, and he cannot be allowed to arrogate himself the position of a representative of the public [Thokchom Angou Singh v UT of Manipur, AIR 1961 Mani 12 : 1961 (1) Cr LJ 676]. [s 144.31] Sub-section (4) : Duration of order.— The heading of the chapter and the section both show that the order is temporary. No perpetual injunction can be issued, nor what is in effect one; nor an order to be in force until the happening of a certain event [Sheodin, 10 A 115; Ramjit, 7 Cal WN 140; Bradley, 8 C 580; Gopimohun, 5 C 7; Ramanadhan, 24 M 45; Prasanna, 8 CLR 231]. Renewal of a previous order is an extension and therefore illegal [Govind, 38 M 489; Ramjit, sup; Ramnad, 33 Cr LJ 605]. Sub-section (4) cannot be evaded by repeating the order [Ramnarain, AIR 1942 P 414; Taturam Sahu v State of Orissa, AIR 1953 Ori 96 : 17 Cut LT 48 : 1953 Cr LJ 731], or by drawing it up again by adding other persons [Ashutosh, 26 Cal WN 411], or by confirming it on a subsequent date [Thompson, 13 Cal WN 195]; nor can the time be extended by passing successive orders [Bisseswar, 17 Cr LJ 200; Satish, 11 Cal WN 79; Muran, 23 Cr LJ 689; Chrestien, AIR 1939 P 512].

An order by the District Magistrate under section 144 cannot be passed in restricted manner so as to make it permanent or semi-permanent. [Acharya Jagdishawaranana v Commissioner of Police, AIR 1984 SC 51 : 1983 Cr LJ 1872 : (1983) 4 SCC 522 (SC) : 1984 (1) Crimes 318; Harish Arora v DM Shahdara, 2000 MPHT 24].

The period runs from the date of the original notice and not from the date of the final order after cause shown [Thompson, sup; Ramnarain, AIR 1942 P 414; Maulo Bux Ansari v Ram Rup Sah, 1983 Cr LJ 1215 : 1983 (2) Crimes 558 : 1983 Pat LJR 493 : 1983 BLJR 365]. If no period is stated, it will be presumed that it is limited to two months [Ramnath, 34 C 897; Ponnappa, 20 Cr LJ 755; see however Mithukumaraswami, 23 Cr LJ 404]. No prohibitory order under section 144(1) can be passed after a period of two months from the date of initiation of the proceedings [Dhirendranath v Hadi Raul, 2001 Cr LJ 1998 : (2000) 90 Cut LT 3 : 2000 (1) Ori LR 557 : 2000 (18) OCR 613 : 2001 (2) Cur Cr R 316 (Ori)]. It is not competent to a Magistrate to revive or resuscitate his order from time to time [Govinda Cheth v Perumal Cheth, (1913) 38 Mad 489; Pravita Muduh v Mina, 2003 Cr LJ 3233 (3235) (Ori); Rama Chandra Mahapatra v Rabindranath, 2004 Cr LJ 5065 (Ori) : 2003 (26) OCR 264].

State Government may extend by notification the period not exceeding six months from the date of expiry of the order if it considers necessary for preventing danger to human life, health or safety or for preventing a riot or an affray; but it cannot resuscitate an order no longer in force [Chanan, 42 Cr LJ 190]. In the previous Code, the power of the State Government to extend the period of two months for an indefinite period was declared to be unconstitutional under Article 19(b), (c), (d) of Constitution, as there is no right of appeal or revision [Kamla Kant Mishra v State of Bihar, AIR 1962 Pat 292 : 1962 (2) Cr LJ 203 : 1962 BLJR 236 (Virendra v State of Punjab, 1958 SCR 308; AIR 1957 SC 896 : 1958 SCJ 88 relied on and Bapurao Dhondiba Jagtap v State, AIR 1956 Bom 300 : 1956 Cr LJ 598 : 58 Bom LR 418 : ILR (1956) Bom 753 dissented from)]. Under the present Code, the State Government may extend the period not exceeding six months from the date of expiry of the order. [s 144.32] Sub-sections (5), (6) and (7) : Rescission or alteration of order.— Sub-section (5) is not a bar to a direct revision to the High Court (see post : “Revision”). Rescission or alteration can be done by the same Magistrate or by a superior Magistrate not only on the ground that circumstances have since altered, but because it should never been made [Sheobalak, 2 P, 94 FB : Mooka, AIR 1937 M 167; Maun, AIR 1934 P 313]. A district Magistrate by cancelling or altering an order may remove the grievance or reduce its extent, but he cannot make a new order constituting a fresh grievance to a party not before him [Sevugan, AIR 1937 M 487 : 38 Cr LJ 864; Ramaswami, 1938 (2) Mad LJ 509; Panchkesar, 1938 PWN 709; Ganpat, 19 Cr LJ 880]. “Alter” does not mean substitution of names [Muthukumaraswami, AIR 1922 M 76]. When the Sub-divisional Magistrate makes an order absolute against one party and vacates it against second party, the district Magistrate has no jurisdiction to make it absolute against the second party by rescinding the order against the first party [Dewan Singh v Deo Narain Singh, AIR 1951 Pat 253 : 1951 Cr LJ 809]. A district Magistrate may rescind or alter but cannot direct the sub-divisional Magistrate to initiate proceeding under section 145, [Kedar, 33 Cal WN 723].

A Magistrate, while passing an order under sections, 144(1) and (2), has no jurisdiction to deal with possession of any property or building. Direction issued by the Magistrate was to evict the petitioners from the building and

Page 18 of 20 [s 144] Power to issue order in urgent cases of nuisance or apprehended danger.— put respondents in without jurisdiction. AK Moni v State of Kerala, 2006 Cr LJ 4337 (4340) (Ker) : ILR 2006 (2) Ker 284 : 2006 (4) Crimes 142. [s 144.33] Competence to rescind.— A matter under sub-section (5) which was properly before a Magistrate in the absence of Sub-divisional Magistrate, cannot be dealt with by the former after the return of the latter [Sevugan, AIR 1937 M 487]. Magistrate making order under sub-section (1) has also power to make an order under sub-section (5) even if he has ceased to hold the superior post, he was held when the order was passed [Kusum, 38 Cal WN 115; see however, Sudarshanam, 16 Cr LJ 74].

The jurisdiction in sub-section (5) is neither appellate nor revisional but something special [Saturhan, AIR 1921 P 468; Madan, AIR 1921 P 392; Sevugan, sup; Hrushikesh Acharya v Balaram Pati, AIR 1967 Ori 72 : 1967 Cr LJ 798 : 33 Cut LT 58] and therefore section 401(4) does not bar a revision [Pitchai, AIR 1932 M 720 : 33 Cr LJ 826; Purna Chandra Tewari v Soogat Ali Malick, AIR 1960 Cal 715 : 1960 Cr LJ 1445]. [s 144.34] Sub-section (5) does not authorise the Magistrate to substitute a new order Cherappai v Mathoo, 1960 (1) Cr LJ 659 : 1960 Ker LT 724 .— Sub-section (5) is not the only remedy available to the aggrieved party. AK Moni v State of Kerala, 2006 Cr LJ 4337 (Ker). section 144(5) cannot take away the jurisdiction of the High Court to quash an order passed by the Magistrate under sub-section (1) and (2), if such action is warranted. In appropriate cases, the High Court can make the powers conferred on it under Articles 226 and 227 of the Constitution. If the impugned order is without jurisdiction, the existence of alternative remedy is no bar. AK Moni v State of Kerala, 2006 Cr LJ 4337 (4339) (Ker) : ILR 2006 (2) Ker 284 : 2006 (4) Crimes 142.

When an ex parte order is sought to be rescinded, the Magistrate must take evidence and record a reasonable portion of it [Brelvi, AIR 1931 B 325; Satyanarayan, 32 Cr LJ 744; see Re : Krishnavatharam, AIR 1948 Mad 117 : (1948) 49 Cr LJ 93 : 60 Mad LW 488 (2) : 1947 (2) Mad LJ 191; Thakin Aung, AIR 1939 R 181]. He cannot take evidence ex parte or make local inspection in the absence of parties [Gobindram, AIR 1929 P 46; Narendra, AIR 1924 P 717] or base his decision merely on local inspection [Harendra Nath Pathak v State, AIR 1951 Pat 285 : 1951 Cr LJ 10].

The District Magistrate did not have any valid reason to issue notification in exercise of powers under section 144 of the Code with regard to the sale and distribution of medicines as the sale and distribution of medicines is governed by a special Act and Rules. The argument has merit in it. The legislature has already enacted Drugs and Cosmetics Act, besides framing rules thereunder to regulate the sale and distribution of medicines. Under these circumstances, the issuance of notification under the general law would be rendered void as it tantamount to encroach upon the field earmarked for the special law [Jiwan Kumar v State of Punjab, 2008 Cr LJ 3576 (3578) (P&H)]. [s 144.35] Power of police to use force-force. Freedom of holding non-violent protest march to air grievances is a fundamental right of people. However, such rights are subject to reasonable restriction in interest of sovereignty and integrity of nation. Particular areas or routs, therefore, have rightly been designated by State authorities for holding public meetings. The power of police including right to use reasonable force for dispersing unlawful assembly and maintaining public order can be exercised [Anita Thakur v State of Jammu and Kashmir, AIR 2016 SC 3803]. [s 144.36] Cancellation of order.— When a Magistrate cancels his order and removes the case from the file, he has no power to revive it without a fresh proceeding [Bradley, 8 C 580].

In the previous Code under sub-section (4) [now sub-section (5)] only the Magistrate could rescind or alter an order made under this section. It was not clear whether the Magistrate could rescind or alter an order extended by the State Government under sub-section (6) [now sub-section (4)]. It was held that such order could be rescinded or altered by the Magistrate [Varied Porinchukutty v State of Kerala, AIR 1967 Ker 157 : 1967 Cr LJ 893 : 1967 Ker LT 157 : 1967 Mad LJ (Cri) 240]. The matter has been made clear by insertion of a new subsection (6) giving power to the State Government to rescind or alter its order of extension.

Page 19 of 20 [s 144] Power to issue order in urgent cases of nuisance or apprehended danger.— [s 144.37] Duration.— An order which is unlimited in duration and permanent in effect cannot be made under section 144. Hence an order directing the respondent to remove a bund obstructing the flow is invalid [Parathodu Panchayat v Kanjirappally Panchayat, 1984 Cr LJ 971 Ker : 1984 Ker LT 204 : 1984 (1) Cr LC 401 : 1984 Ker LJ 84]. [s 144.38] Successive orders.— Successive orders on the same matter would violate the language and spirit of section 144 and would in most cases conflict with the rights guaranteed by Article 19 (1) of the Constitution [Acharya Jagadishwarananad Avadhuta v Commission of Police, AIR 1984 SC 51 : 1983 Cr LJ 1872 : (1983) 4 SCC 522]. [s 144.39] Order outside the section.— Order not to excavate tank on one’s own land for apprehended damage to another’s house [Kamini, 38 C 876]; not to realise rents from tenants [Abhayeswari, 16 C 80; Premchand, 9 Cal WN 392; Ananda, 19 C 127]; not to reap crops [Isab, 8 CWB 373]; to divide crops between rival landlords [Umatul, 32 C 154]; to dig a channel [Subramania, 15 Cr LJ 291]; to fill up excavation [Kusum, 38 Cal WN 115]; to remove fence erected on own land [Bimala, AIR 1938 P 61] : to remove a bund already erected [Tilak, AIR 1929 P 523; see however Balaram, 41 Cal WN 897; Lachmi Narayan, AIR 1940 P 57; on tenants to vacate land [Brindaban Shaw v Narendra Nath Sarkar, AIR 1948 Cal 192 : (1948) 49 Cr LJ 289; Radha Kishen v Inder Parkash, AIR 1951 Punj 109 : 1951 Cr LJ 1304] : to quit district by next train [Sasmal, 58 C 1037]; not to reside in a place [Thakin, Ba, AIR 1934 R 124]; to police to reap the crop [Kalipada, AIR 1942 C 66; Rupan, AIR 1944 p 213]; to regulate boat traffic on the ground overcrowding was dangerous to health [Pratab, 25 C 852]; to police to seize movable property in one’s custody and to hand it over to another [Indrasan Rai v Enayat Khan, AIR 1952 Pat 316 : 1952 Cr LJ 1124]; which is virtually one of ejectment [Madanlal, AIR 1921 P 392]; to cut a bund and to forbid public to interfere though a Civil Court injunction was in force [Abdul Jalil, 28 Cal WN 732]. There can be no order under section 144 to protect a person against whom an injunction has been passed by a Civil Court [Subodh Gopal Bose v Dalmia Jain Co Ltd, AIR 1951 Pat 266]. [s 144.40] Civil suit against order.— An illegal order under section 144 furnishes cause of action for a civil suit to adjudicate on the rights of the parties [Babu Sah, AIR 1922 M 123]. [s 144.41] Disobedience to order.— Disobedience to order under section 144 is punishable under section 188 of Indian Penal Code, 1860. A Magistrate cannot himself take cognizance when the offence is disobedience of an order of his own court. He must make a complaint under section 195 [Satish, 39 Cal WN 1053; Mahendra Prasad Singh v State of Bihar, AIR 1970 Pat 102 : 1970 Cr LJ 484]. In violation of prohibitory order under section 144 on both parties one party harvested crop on the land and removed the crop. He cannot be charged for theft but he may be punishable under section 188 of Indian Penal Code, 1860 [Mohendra, sup Osman Mistry v Atul Krishan Ghosh, AIR 1949 Cal 632 : (1950) 51 Cr LJ 97 followed)]. In a prosecution, the validity of the order under section 144 can be challenged [Babulal Prate v State of Maharashtra, AIR 1961 SC 884 : 1961 (2) Cr LJ 16 (SC)]. Prosecution is to prove that the accused had knowledge of the order [Niharendu, 43 Cal WN 1061; Ramdas, AIR 1927 C 28; Madan, AIR 1940 P 446; see Khosi Mahton v State, AIR 1964 Pat 526 : 1964 (2) Cr LJ 704 : 1965 BLJR 180]. Proof of circumstances from which knowledge may be inferred is sufficient [Afaq Husain, AIR 1941 A 70 FB].

When after an injunction against a party under section 141, the latter obtains an ad interim injunction from the Civil Court against the former, section 144 order remained in full force [Mrityunjoy Chatterjee v State, AIR 1955 Cal 439 : 1955 Cr LJ 1171 : 59 Cal WN 470].

Disobedience per se of an order is not an offence. It must be shown that it caused or tended to cause the results mentioned in section 188, Indian Penal Code, 1860 [Madhu Limaye v S.D.M., Monghyr, AIR 1971 SC 2486, 2497 : 1971 Cr LJ 1720 : (1970) 3 SCC 746 (SC); Saroj, 48 Cr LJ 747; Prajapat, 14 Cal WN 234; Dabiruddin, A 1930 C 131; see however Niazu, 35 Cr LJ 699]. The violation of any part of the order by itself will not amount to any offence; in addition, the disobedience must cause or tend to cause obstruction, annoyance, injury, etc. It is only when order is taken along with section 18 of Indian Penal Code, 1860 that the violation will become an offence [Raj Narain, AIR 1959 A 481 : Thokchom Angau Singh v UT of Manipur, AIR 1961 Mani 12 : 1961 (1) Cr LJ 676].

Page 20 of 20 [s 144] Power to issue order in urgent cases of nuisance or apprehended danger.—

Objection that the order was not properly published is to be gone into in the proceeding under section 188 of Indian Penal Code, 1860 and not in revision petition [Thokchom Angau Singh v UT of Manipur, AIR 1961 Mani 12 : 1961 (1) Cr LJ 676]. Person arrested for violation of order under section 144 can go in revision to the High Court without waiting for his conviction under section 188 of Indian Penal Code, 1860 [Thockchom, sup]. [s 144.42] Revision.— Formerly revisional power was exercised by the High Court under the Charter Act or section 107 of the Government of India Act, but since the omission of sub-section (3) of section 435 (by Act, 18 of 1923) orders under section 144 are revisable under section 439 (now section 401) [Rashid, 46 Cal WN 136; Chandra, AIR 1942 L 171 FB; Muthusami, 53 M 320; Gobindaram, 7 P 269; Babulal Parate State of Maharashtra, AIR 1961 SC 884 : 1961, 2 Cr LJ 16 : State of Bihar v KK Misra, AIR 1971 SC 1667 : (1969) 3 SCC 337 (SC); Madhu Limaye v SDM Monmghr, AIR 1971 SC 2486 : 1971 Cr LJ 1720 : (1970) 3 SCC 746 (SC)]. Orders are also now revisable by Sessions Judge who has been given concurrent power with the High Court under section 399. The opinion of the Magistrate although entitled to great weight is not absolute [Chandra, sup]. A Magistrate no doubt is responsible for the peace of his district, but the High Court has a duty to see whether the responsibility has been properly discharged in any particular instance Chandra, sup Summer, 34 Cr LJ 334], or whether the order was without jurisdiction [Thakin Ba, 35 Cr LJ 1300; Akal, AIR 1924 P 145; Muthukumaraswami, AIR 1922 M 76]. If the grounds for action as stated in the order are either unfounded or insufficient in law, or if there is in it an absence of any near or reasonable connection between the prohibited act and the supposed danger, it is the duty of the High Court to interfere [Sriramamurthi, AIR 1931 M 242; Satyanarayana, AIR 1931 M 236]. The High Court will not reimpose an order which the District Magistrate has in his direction rescinded [Manu, AIR 1934 P 313].

Where the opposite party without filing show cause notice to rescind the order straight away files revision, the revision would not be maintainable [Indrajeet v Sri Brahamputra Gopinath Mahaprabhu, 2007 (2) Crimes 218 (Ori)]. [s 144.43] Revision after two months.— As to whether the High Court should interfere when two months have expired or are about to expire, it has been answered affirmatively [see Chandranath, 19 Cr LJ 951; Bisheshwar, 20 Cal WN 758; Maharam, 50 Cal WN 615; Brelvi, AIR 1931 B 325; Ardeshir, AIR 1940 B 42; Shanmuga, 39 Cr LJ 886; Taluram Sahu v State of Orissa, AIR 1953 Ori 96 : 1953 Cr LJ 731 : 17 Cut LT 48] as well as negatively [Muthuswami, 52 M 320; Kuppu, AIR 1923 M 896 : Gobinda, 38 M 489; Karan, AIR 1928 P 480; Munnilal, AIR 1925 P 514; Jaganath, AIR 1933 P 58; Ramabarik, AIR 1940 P 185; Madho, AIR 1942 P 331; Virendra, AIR 1925 Pu 1]. In Patna, it has also been held that where an order unnecessarily decides upon the rights of parties [Joint-Agents, AIR 1933 P 185], or causes serious prejudice [Purna, AIR 1935 P 224; Panchkesar 1938 PWN 709; Saligram, 35 Cr LJ 1057; Bindeshwari, 41 Cr LJ 578] it should be interfered with even if it is time-expired.

The proper procedure is to move the District Magistrate (or the Magistrate to whom the Magistrate passing the order is subordinate) first under sub-section (5). But if such Magistrate unnecessarily postpones the hearing [Surendra, 37 Cal WN 692] or does not dispose of it in accordance with law [Varied Porinchukutty v State of Kerala, AIR 1967 Ker 157 : 1967 Cr LJ 893 : 1967 Ker LT 157 : 1967 Mad LJ (Cri) 240] the party may, in a proper case, to in revision direct to the High Court (or Sessions Judge). As the jurisdiction under sub-section (5) is neither appellate nor revisional, section 401(4) does not bar a revision petition direct to the High Court [Pitchai, 56 M 149 : 33 Cr LJ 826 : Ardeshir, AIR 1940 B 42; Thokchom Angou Singh v UT of Manipur, AIR 1961 Mani 12 : 1961 (1) Cr LJ 676]. Fact that order ceased to have force is not a bar to revision [Gopalji Prasad v State of Sikkim, 1981 Cr LJ 60 (Sikkim)]. [s 144.44] Writ of Mandamus not to be issued.— The Magistrate, without even coming to a satisfaction that there was any breach of peace, directed the police to see that the possession of the petitioner was not disturbed by the respondent. Accordingly, the question of enforcement of the order of the Magistrate does not and cannot arise in the instant writ proceedings [PC Bhattacharya v State, 1996 Cr LJ 41 at pp 42, 43 (Cal)]. End of Document

[s 144-A Power to prohibit carrying arms in procession or mass drill or mass training with arms.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER X MAINTENANCE OF PUBLIC ORDER AND TRANQUILLITY > C.—Urgent Cases of Nuisance or Apprehended Danger

The Code of Criminal Procedure, 1973 CHAPTER X MAINTENANCE OF PUBLIC ORDER AND TRANQUILLITY Provisions of four chapters of the old Code, namely chapters 9, 10, 11 and 12 have been incorporated in this one chapter 10 divided into four parts—Pt A (Unlawful Assemblies—sections 129 to 132), Pt B (Public Nuisance— sections 133 to 143), Pt C (Urgent cases of Nuisance and Apprehended Danger—section 144), Pt D (Disputes as to Immovable Property—sections 145 to 148).

C.—Urgent Cases of Nuisance or Apprehended Danger 1

[s 144-A Power to prohibit carrying arms in procession or mass drill or mass training with arms.— (1) The District Magistrate may, whenever he considers it necessary so to do for the preservation of public peace or public safety or for the maintenance of public order, by public notice or by order, prohibit in any area within the local limits of his jurisdiction, the carrying of arms in any procession or the organising or holding of, or taking part in, any mass drill or mass training with arms in any public place. (2) A public notice issued or an order made under this section may be directed to a particular person or to persons belonging to any community, party or organisation. (3) No public notice issued or an order made under this section shall remain in force for more than three months from the date on which it is issued or made. (4) The State Government may, if it considers necessary so to do for the preservation of public peace or public safety or for the maintenance of public order, by notification, direct that a public notice issued or order made by the District Magistrate under this section shall remain in force for such further period not exceeding six months from the date on which such public notice or order was issued or made by the District Magistrate would have, but for such direction, expired, as it may specify in the said notification. (5) The State Government may, subject to such control and directions as it may deem fit to impose, by general or special order, delegate its powers under sub-section (4) to the District Magistrate. Explanation.—The word “arms” shall have the meaning assigned to it in section 153-AA of the Indian Penal Code (45 of 1860).]. [s 144A.1] Changes—CrPC (Amendment) Act, 2005 (25 of 2005).— Section 144A is new and added by the Code of Criminal Procedure, 1973 (Amendment) Act, 2005 (25 of 2005).

Notes on Clauses

Page 2 of 2 [s 144-A Power to prohibit carrying arms in procession or mass drill or mass training with arms.—

In order to curb the militant activities of certain communal organizations, a need has been felt to strengthen the hands of State authorities for effectively checking communal tension and foster a sense of complete security in the minds of members of the public. This clause, therefore, seeks to insert a new section 144-A in the Code to enable the District Magistrate to prohibit mass drill (or training) with arms in public places. (Notes on clauses, clause 16)

This section will come into force from the date of its notification. [s 144A.2] Scope of section of section 144A.— By virtue of section 144A of the Code of Criminal Procedure, 1973, which itself was introduced by Act 25 of 2005, the District Magistrate has been empowered to pass an order prohibiting, in any area within the local limits of his jurisdiction, the carrying of arms in any procession or the organizing or holding of any mass drill or mass training with arms in any public place, where it is necessary for him to do so for the preservation of public peace, public safety or maintenance of the public order [Ramlila Maidan Incident, In Re., (2012) 5 SCC 1 : 2012 Cr LJ 3516 (SC) : 2012 (2) Scale 682].

1

Inserted by the Code of Criminal Procedure (Amendment) Act, 2005 (25 of 2005), section 16 (Date of enforcement yet to be notified).

End of Document

[s 145] Procedure where dispute concerning land or water is likely to cause breach of peace.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER X MAINTENANCE OF PUBLIC ORDER AND TRANQUILLITY > D.—Disputes as to Immovable Property

The Code of Criminal Procedure, 1973 CHAPTER X MAINTENANCE OF PUBLIC ORDER AND TRANQUILLITY Provisions of four chapters of the old Code, namely chapters 9, 10, 11 and 12 have been incorporated in this one chapter 10 divided into four parts—Pt A (Unlawful Assemblies—sections 129 to 132), Pt B (Public Nuisance— sections 133 to 143), Pt C (Urgent cases of Nuisance and Apprehended Danger—section 144), Pt D (Disputes as to Immovable Property—sections 145 to 148).

D.—Disputes as to Immovable Property [s 145] Procedure where dispute concerning land or water is likely to cause breach of peace.— (1) Whenever an Executive Magistrate is satisfied from a report of a police officer or upon other information that a dispute likely to cause a breach of the peace exists concerning any land or water or the boundaries thereof, within his local jurisdiction, he shall make an order in writing, stating the grounds of his being so satisfied, and requiring the parties concerned in such dispute to attend his court in person or by pleader, on a specified date and time, and to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute. (2) For the purposes of this section, the expression “land or water” includes buildings, markets, fisheries, crops or other produce of land, and the rents or profits of any such property. (3) A copy of the order shall be served in the manner provided by this Code for the service of a summons upon such person or persons as the Magistrate may direct and at least one copy shall be published by being affixed to some conspicuous place at or near the subject of dispute. (4) The Magistrate shall then, without reference to the merits or the claims of any of the parties to a right to possess the subject of dispute, peruse the statements so put in, hear the parties, receive all such evidence as may be produced by them, take such further evidence, if any, as he thinks necessary, and, if possible, decide whether any and which of the parties was, at the date of the order made by him under sub-section (1), in possession of the subject of dispute : Provided that if it appears to the Magistrate that any party has been forcibly and wrongfully dispossessed within two months next before the date on which the report of a police officer or other information was received by the Magistrate, or after that date and before the date of his order under sub-section (1), he may treat the party so dispossessed as if that party had been in possession on the date of his order under sub-section (1). (5) Nothing in this section shall preclude any party so required to attend, or any other person interested, from showing that no such dispute as aforesaid exists or has existed; and in such case the Magistrate

Page 2 of 45 [s 145] Procedure where dispute concerning land or water is likely to cause breach of peace.— shall cancel his said order, and all further proceedings thereon shall be stayed, but, subject to such cancellation, the order of the Magistrate under sub-section (1) shall be final. (6) (a) If the Magistrate decides that one of the parties was, or should under the proviso to sub-section (4) be treated as being, in such possession of the said subject, he shall issue an order declaring such party to be entitled to possession thereof until evicted therefrom in due course of law, andforbidding all disturbance of such possession until such eviction; and when he proceeds under the proviso to sub-section (4), may restore to possession the party forcibly and wrongfully dispossessed. (b) The order made under this sub-section shall be served and published in the manner laid down in sub-section (3). (7) When any party to any such proceeding dies, the Magistrate may cause the legal representative of the deceased party to be made a party to the proceeding and shall thereupon continue the inquiry, and if any question arises as to who the legal representative of a deceased party for the purposes of such proceeding is, all persons claiming to be representatives of the deceased party shall be made parties thereto. (8) If the Magistrate is of opinion that any crop or other produce of the property, the subject of dispute in a proceeding under this section pending before him, is subject to speedy and natural decay, he may make an order for the proper custody or sale of such property, and, upon the completion of the inquiry, shall make such order for the disposal of such property, or the sale-proceeds thereof, as he thinks fit. (9) The Magistrate may, if he thinks fit, at any stage of the proceedings under this section, on the application of either party, issue a summons to any witness directing him to attend or to produce any document or thing. (10) Nothing in this section shall be deemed to be in derogation of the powers of the Magistrate to proceed under section 107. [s 145.1] STATE AMENDMENT IN SECTION 145 Maharashtra.—The following amendments are made by Maharashtra Act 1 of 1978, section 2 (with effect from 15-April-1978).

Section 145.—In its application to the State of Maharashtra—

(i)

in section 145(1), for the words “Whenever an Executive Magistrate”, read “Whenever in Greater Bombay, a Metropolitan Magistrate and elsewhere in the State, an Executive Magistrate”.

(ii) for section 145(10), substitute the following:—

(10) In the case of an Executive Magistrate taking action under this section nothing in this section shall be deemed to be in derogation of his power to proceed under section 107. In the case of a Metropolitan Magistrate taking action under this section, if at any stage of the pro-ceeding, he is of the opinion that the dispute calls for an action under section 107, he shall after recording his reasons, forward the necessary information to the Executive Magistrate having jurisdiction to enable him to proceed under that section.

COMMENTS [s 145.2] Changes.— Section 145 corresponds to the old section 145 with the following changes :

Page 3 of 45 [s 145] Procedure where dispute concerning land or water is likely to cause breach of peace.— (1) In sub-section (1) the words “an Executive Magistrate is satisfied from a report of a police officer or upon” and on a specified date and time have been substituted for a District Magistrate, Sub-divisional Magistrate or Magistrate of the first class is satisfied from a police report or/and within a time to be fixed by such Magistrate respectively and the words at the end of the sub-section requiring to put in documents and affidavits of evidence have been omitted. (2) In sub-section (4) the words “the parties and so put in......subject of dispute” have been substituted for “such parties and documents and affidavits if any, so put in, hear the parties and conclude the enquiry, as far as may be practicable, within a period of two months from the date of the appearance of the parties before him and, if possible decide the question whether any and which of the parties was, at the date of the order before mentioned in such possession of the said subject respectively”. (3) First and third provision of sub-section (4) have been omitted; the remaining proviso has been redrafted and the words “on which the report.....under sub-section (1)” and “on the date of his order under sub-section (1)” have been substituted for “of such order” and “at such date”, respectively. (4) Sub-section (6) has been renumbered clause (a) of sub-section (6) and clause (b) has been added :

The important changes are :

(1) The affidavit procedure brought about by amendment in 1955 [see old sub-sections (1) and (4) having not worked satisfactorily previous procedure has been restored by amendments of sub-sections (1) and (4). (2) In view of the conflicting decision about the starting point for counting the period of two months within which any party has been forcibly and wrongfully dispossessed, the proviso to sub-section (4) has been amended to make it clear that it shall be counted backwards from the date of the report of the police officer or other information received by the Magistrate or after that date and before the date of his order. (3) New clause (b) of sub-section (6) provides for publication of the final order under sub-section 6 (a) in the same manner as provided in sub-section (3). (4) Third proviso of old sub-section (4) providing for attachment in emergency has been omitted and this provision has been incorporated in section 146.

It may be noted that any State Government may after consultation with the High Court, by notification, allocate these powers to Judicial Magistrates of the first class instead of the Executive Magistrate (see section 478). [s 145.3] Scope and application of section 145.— Sections 145 and 146 together constitute a scheme for the resolution of a situation where there is likelihood of a breach of the peace because of a dispute concerning any land or water or their boundaries [Mathuralal v Bhanwar Lal, AIR 1980 SC 242 : 1980 Cr LJ 1 : (1979) 4 SCC 665 (SC)]. This section confers power on executive Magistrates to intervene and pass a temporary order in a dispute between parties regarding possession of land which threatens to develop into use of force causing a breach of the peace. To prevent such danger, the speedy remedy provided is the drawing up of a proceeding by passing a preliminary order under sub-section (1) against all the parties concerned in the dispute calling upon them to appear on a specified date and time and put in written statements in support of their claims to actual possession. Then after reading the written statements so put in, and hearing the parties and their evidence the Magistrate passes a final order under sub-section (6) declaring and maintaining the possession of that party who in his decision was in actual physical possession or who was dispossessed from such possession within two months next before the date of the report of the police officer or other information about the dispute leading to the institution of the proceeding, and forbidding all disturbance until evicted in due course of law. If the Magistrate after passing the preliminary order under sub-section (1) at any time considers the case to be one of emergency or if upon inquiry he decides that none of the parties was then in possession or if he is unable to decide who was in actual

Page 4 of 45 [s 145] Procedure where dispute concerning land or water is likely to cause breach of peace.— possession, he may under section 146 attach the property until a competent court has determined the rights of the parties with regard to the person entitled to possession.

Section 145 and section146 of Code of Criminal Procedure, 1973 together constitute a scheme for the resolution of a dispute involving likelihood of breach of peace, and section 146 cannot be separated from section 145 of Code of Criminal Procedure, 1973. If the Executive Magistrate finds after enquiry that it is not possible to decide who among the parties was in actual possession at the time of passing orders under section 145(1) of Code of Criminal Procedure, 1973, the Executive Magistrate can order attachment of the property in dispute, and such attachment can continue in force till a competent Civil Court adjudicates and decides the dispute including right to possess [Asok Kumar v State of Uttarkhand, 2013 (3) SCC 366 2013 (80) ALLCC 599 : 2013 (1) RCR (Criminal) 961 : 2012 (12) Scale 338 : [2012] 13 SCR 971 : (2013) 2 WBLR (SC)].

In a land dispute where the breach of peace was involved, the direction to the parties by the Magistrate to approach the higher competent authority was not proper. The Magistrate should have decided as to who was in actual possession of land [Biren Changmai v Golap Changamai, 2010 Cr LJ (NOC) 885].

To initiate proceedings under section 145 of Code of Criminal Procedure, 1973, three requirements have to be fulfilled. (i) there must be a reach breach of place inviting such proceedings (ii) there must be material on record to prove the actual breach of peace, and (iii) the executive Magistrate shall have a subjective satisfaction to initiate proceedings [S Jc Ramesh Babhu v Executive Engineer-cum-Revenue Divisional Officer, 2005 Crimes 161 (166) (Mad)].

Under sections 145 and 146 of Code of Criminal Procedure, 1973, the Executive Magistrate can pass the order relating to immovable disputed property in order to be given police custody, but in the present case that order of the Magistrate was held to be improper and violative of provisions of aforesaid section because movable property like mini bus was handed over to police custody by him [Nightingale Engineering Industries Pvt Ltd v Sibapada De, 1995 Cr LJ 1523 (Ori)].

Where it is found that the petitioner is not in possession of the disputed property on the date of passing of the preliminary order, the proceeding under section 145 of Code of Criminal Procedure, 1973 does not lie and the same is liable to be quashed [Lophinosis v Hamboy, 2001 AIR SCW 2305 : 2001 Cr LJ 2943 : JT 2000 (10) SC 17 (SC)].

The power of the Executive Magistrate to pass an order under sub-section (1) as at the preliminary stage and the power to pass an order under sub-section (4) is after enquiry, namely in the final stage. Both the orders cannot be clubbed in a simple order. Non-passing of the preliminary order under sub-section (1) of section 145(1) by the Executive Magistrate vitiates the proceedings [M Krishnamoorthy v PM Neelameghan, 2003 Cr LJ 3820 (Mad)].

Observations made in proceeding where land dispute was likely to cause breach of peace have no bearing to rent control proceedings. These observations cannot be made basis for deciding relationship of tenant and landlord [Surender Pal Kaur v Satpal, AIR 2015 SC 2739]. [s 145.4] Non-compliance with section.— The preliminary order passed by the Magistrate did not disclose any steps as required under section 145. The final order passed by Magistrate also did not disclose the contentions of the parties or the documents filed by them or the findings of the Magistrate on each of the contentions. Held, the order passed by the Magistrate was not in accordance with the procedure laid down under section 145. The order was set aside [Janga Mariamma v Revenue Divisional Officer and SDM, Mancherial, 2008 Cr LJ 4500 (AP) : 2008 (2) Andh LD (Cr) 365].

Mere sending a notice is itself not sufficient to comply with the mandatory requirements under section 146(1) of

Page 5 of 45 [s 145] Procedure where dispute concerning land or water is likely to cause breach of peace.— Code of Criminal Procedure, 1973 [Thamaraiammal v Executive Magistrate-cum-Revenue Divisional Officer, Chengapattu, 2007 Cr LJ 1885 (1889) : 2007 (1) Mad LJ (Cri) 928].

When the petitioner himself was in possession of the ashram, the SDM and the police have a duty to protect his possession instead of initiating proceedings under section 145(1) of Code of Criminal Procedure, 1973 or passing an order under section 146(1) of Code of Criminal Procedure, 1973. Mere information that a dispute is likely to cause a breach of peace was held not sufficient to exercise power under section 145 of Code of Criminal Procedure, 1973 [Madhusudanandapuri Swamiji of Omkarashram v Assistant Commissioner, Banglore, 2008 Cr LJ (NOC) 802 (Kant) : 2008 (2) AIR Kar R 557].

A dispute between the parties not involving people in the locality should not have been made the basis for initiating proceedings under section 145 [Md. Ansaruddin v State of Assam, 2008 Cr LJ (NOC) 479 (Gau) : 2008 (62) All Ind Cas 454]. [s 145.5] Section 145 prescribes only procedure to be followed—FIR liable to be quashed.— Section 145(1) of Code of Criminal Procedure, 1973 prescribes procedure to be followed where dispute concerning immovable property or water is likely to cause breach of peace. Under the said section, the Executive Magistrate passes an order in case the Executive Magistrate is satisfied from “a report of police officer or upon other information” that a dispute likely to cause a breach of peace exists. Thus, in proceedings under section 145 of Code of Criminal Procedure, 1973, the police officer is the complainant or the informant to the Executive Magistrate. When the police officer is the complainant or the informant and is not the police officer who receives information, then question of registering the said information under section 154 of Code of Criminal Procedure, 1973 does not arise at all. [K Guravaiah v State of AP, 2011 Cr LJ 64 (66) : (2011) 2 Andh LD (Cr) 69 (AP)]. [s 145.6] Civil and criminal proceedings.— When civil and criminal proceedings regarding same subject matter was pending and effective injunction order passed, criminal proceedings under section 145 of Code of Criminal Procedure, 1973 is not maintainable. [Smt. Minta Devi v Anant Ram, 1997 Cr LJ 1113 : 1997 All LJ 205 : (1997) 34 All Cr C 566 : 1966 UPTC 1320 (All); Balmukand Gupta v State of AP, 2002 Cr LJ 382 (AP); Madhuri Sahu v Suresware Sahu, 2004 Cr LJ 3289 (3292) (Ori) : 2004 (28) OCR 141;Mahendra Prasad Keshri v State of Jharkhand, 2013 (1) JLJR 338 : 2013 (2) AJR 63].

Mere pendency of civil suit is not sufficient to oust jurisdiction of the Magistrate to take action to prevent the said apprehension, particularly when the Civil Court has not passed any order relating to possession or protection to disputed property [Nagabhane v Dwarikanath, 2001 Cr LJ 2753 : (2000) 89 Cut LT 809 : 2000 (18) OCR 748 (Ori)].

In Kailash Nath v State of UP, 2004 Cr LJ 2129 : 2004 (1) Crimes 459 : 2004 All LJ 1058 : (2004) 48 All Cr C 468 (All) it had been held : “In view of the aforesaid plethora of case-law, it is evident that the proceedings under section 145 of Code of Criminal Procedure, 1973 are not competent when either the matter of title and possession has been earlier adjudicated upon by a competent Civil Court or is pending adjudication before such Court”. See also Usha Chand v State of Bihar, 2006 Cr LJ (NOC) 411 (Pat) : 2006 (1) BLJR 315 : 2006 (2) Pat LJR 185. Proceedings under section 145 should not be instituted where a civil suit is pending for the same land even if some of the properties or parties are different [Atahaul Haque v Md. Allauddin, 2000 Cr LJ 3245, 3247 3248 para 78 : 2000 (3) Pat LJR 90 : 2000 (2) East Cr R 709 (Pat) (Mrs. Indu Prabha Singh J.); K Pounrajan v Collector Chennai District, 2004 Cr LJ 1465 : 2004 Mad LJ (Cri) 55 : 2004 (3) Rec Cr R 788 (Mad)].

A decision by a Criminal Court does not bind the Civil Court. While a decision by the Civil Court binds the Criminal Court [Shanti Kumar Panda v Shakuntala Devi, AIR 2004 SC 115 : 2004 SCC (Cri) 320 : 2004 Cr LJ 1249 (1257) (SC) : 2003 (7) Supreme 719].

Where a civil suit for possession or declaration of title in respect of an immovable property is pending, relief

Page 6 of 45 [s 145] Procedure where dispute concerning land or water is likely to cause breach of peace.— regarding protection of property can be granted by the Civil Court. Proceedings under section 145 of Code of Criminal Procedure, 1973 should not be allowed to continue [Amresh Tiwari v Lalta Prasad Dubey, AIR 2000 SC 1504 : (2000) 4 SCC 440 : 2000 (3) Crimes 37 : 2000 Cr LJ 2226; Anup Kumar Sanyal v Gokul Bey, (2002) 4 Crimes 297 : 2002 Cr LJ 1973 (Gau); Iffan v State of UP, 2003 (4) Crimes 279 (283) (All); S Prabhjeet Singh v Harjeet Singh, 2002 (4) Crimes 25 (26) (SC) : 2002 (Supp-1); Sona Barnal v SB Mohanty, 2005 (25) AIC 930 (Ori); Fazlur Rahman v Mohd. Raizuddin, 2004 Cr LJ 3670 (Gau) : 2004 (2) Gau LR 335 : 2004 (4) Rec CrR 828]. The question of title is to be determined by the Civil Court. The Executive Magistrate in a proceeding under section must confine himself to the evidentiary value of the oral and documentary evidence, if any produced before him [T. Esseswar Rao v Rusava, 2001 Cr LJ 2774 : 2000 (18) OCR 751 : 2000 (2) Ori LR 11 (Ori)]].

Magistrate under this section cannot sit in appeal over inference drawn by the Civil Court. The petitioner can for his grievance, approach Civil Court or Revenue Court [Bhagnati Prasad v State of UP, 2008 Cr LJ 1120 (All)].

Passing of order under section 145 of Code in proceedings under section 144 of Code restraining both parties by way of preliminary order is not proper [Swarup Kr. Sundra v State of Orissa, 2001 Cr LJ NOC 90 : 2000 (3) Crimes 220 (Ori)].

Once the party has acquired physical possession of the property by virtue of sale deed, even if the sale deed is alleged to have been fraudulent or fake, the said party cannot be ousted or dispossessed without due process of law. In the instant case, declaration had been sought by a civil decree that the sale deed was obtained fraudulently or was a fake one. It was held that until there was a finding in the civil suit by way of decree, possession of the respondent could not be disturbed by resorting to proceedings under section 145/146 of Code of Criminal Procedure, 1973 [Roop Lal Bhalla v State, 2003 Cr LJ 4308 : (2003) 106 DLT 388 : (2003) 70 DRJ 194 : 2003 (11) All Ind Cas 862 (Del)].

The Civil Court does not have jurisdiction to make an interim order including an order of ad interim injunction inconsistent with the order of the Executive Magistrate in emergent and exceptional cases [Shanti Kumar v Shakuntala Devi, AIR 2004 SC 115 : 2004 Cr LJ 1249 (1257) (SC) : 2003 (4) Cur CC 259 : (2004) 1 SCC 438].

In a case, Civil Court granted status quo, but the order was vague and gave scope for either party to create trouble resulting in breach of peace. Proceedings under section 145 of Code of Criminal Procedure, 1973 were initiated and a receiver appointed. In the appeal, either of the parties was directed by the Supreme Court to approach the Civil Court and get specific orders as to who would be in possession pending civil suit and held that till then status quo as ordered by Trial Court would continue [Balwan v Ram Niwas, 1993 (1) CCJ 679 (SC)].

Where a civil suit is filed after initiation of proceedings under section 145 of Code of Criminal Procedure, 1973 and status quo order is passed by the Civil Court, that would not oust the jurisdiction of the Criminal Court to proceed with the proceedings under section 145 of Code of Criminal Procedure, 1973 [Aijaz Ahmad Fazali v Arshid Ahmad Maqdooni, 2003 Cr LJ 1133 (1134, 1135) (J&K)].

Where the civil suit with regard to the same property was pending and the Civil Court had passed status quo order, initiation of proceedings under section 145 of Code of Criminal Procedure, 1973 were held not justified and liable to be quashed [Sukhbir Singh v State of Punjab, 2008 Cr LJ (NOC) 714 (P&H)].

Where proceedings under section 145 of Code of Criminal Procedure, 1973 were pending for the last 15 years with no substantial progress, and subsequently a title suit between the parties was filed in Civil Court, proceedings under section 145 of Code of Criminal Procedure, 1973 were dropped [SK Mohd. Khalid v Mohd. Hasan, 2004 Cr LJ (NOC) 183 (Jhar) : 2003 (2) JLJR 666 : 2004 AIR Jhar HCR 797].

Page 7 of 45 [s 145] Procedure where dispute concerning land or water is likely to cause breach of peace.— The devices or order of Civil Courts relating to possession should ordinarily be respected and given effect to by the Magistrate, unless and until there is something which endures him to hold that subsequent to the delivery of possession something has happened which had the effect of dispossessing the party to whom possession was delivered [Mohd. Sufi v Ajab Khan, 1988 (3) Crimes 483 (J&K); See Bishan Narain Bhargav v Madan Lal Gulati, 2003 Cr LJ 3339 (3342) (P&H) : 2003 (4) All CrLR 292 : 2003 (1) Rec CrR 401]. [s 145.7] The section contemplates.— (a) a dispute, (b) relating to (possession of) land, (c) likely to cause breach of the peace and the Magistrate gets jurisdiction to intervene whenever he is “satisfied” that these elements are in existence. This jurisdiction has nothing to do with the determination of the question as to the right to possession or title which is to be agitated exclusively in the Civil Courts. The jurisdiction of the Criminal Court is a very limited one and is carefully restricted to a prevention of the apprehended breach of the peace [Md. Ishaq, AIR 1945 A 60]. This is accomplished by maintaining provisionally in possession the party who is found on a summary inquiry to be in actual possession. [s 145.8] Nature of proceedings.— The proceedings under section 145 are quasi-judicial and quasi administrative in nature, their object being to prevent breach of peace and maintain tranquillity [Bhagwat Saran v State, AIR 1967 All 164 : 1967 Cr LJ 417]. Section 145 is primarily concerned with the prevention of the breach of the peace by declaring the party found in possession to be entitled to remain in possession until evicted therefrom in due course of law [Chandu Naik v Sita Ram B Naik, AIR 1978 SC 333 : 1978 Cr LJ 356 : (1978) 1 SCC 210 (SC)] [As to arbitration, see infra]. [s 145.9] Sections 144 and 145—Distinction.— (i)

The emphasis in section 145 is on a dispute relating to land or water while section 144 is much more general.

(ii) Order under section 144 is passed against an individual or the public generally when frequenting a particular place. Order under section 145 is against the parties to a dispute. (iii) Order under section 144 is discretionary, while order under section 145 is mandatory. (iv) There is a specific time limit for an order under section 144. While no such limit is laid down in section 145.

A proceeding under section 144 can be converted into one under section 145. But it is necessary that the conditions requisite for an order under section 145 exist when such conversion is ordered [Bijendra Rai v Mohan Rai, 1978 Cr LJ 306 : 1978 BBCJ 134 : ILR (1977) 56 Pat 389 (Pat) DB]. [s 145.10] Sections 145, 107 of CrPC—Distinction.— Proceedings under section 107 are for public peace and tranquillity whereas proceedings under section 145 relate to disputes regarding possession between parties concerning any land or water or boundaries thereof. Dropping of proceedings under section 107 could not furnish foundation for dropping the proceedings under section 145. The proceedings under section 145 could not also be dropped on ground of pendency of civil suit. When there was no dispute about title, the rule that a suit or remedy in Civil Court for possession or injunction normally prevents a person from invoking jurisdiction of the Criminal Court would not apply. When claim or title is not in dispute and the parties on their own showing are co-owners and there is no partition that cannot be permitted to act forcibly and unlawfully and ask the other to act in accordance with law. Where the dispute is not on the right to possession but on the question of possession, the Magistrate is empowered to take cognizance under section 145 of Code of Criminal Procedure, 1973 [Prakash Chand Sachdeva v State, AIR 1994 SC 1436 : 1994 Cr LJ 2117 : (1994) 1 SCC 471 (SC)]. [s 145.11] Competence.— That the Mandal Revenue Officer has no jurisdiction to pass order under section 145 or 147 of Code of Criminal Procedure, 1973 It is only the Mandal Executive Magistrate that can exercise the power contemplated under section 145 or 147 of Code of Criminal Procedure, 1973 and our Mandal Revenue Officer in such capacity cannot invoke and issue proceeding either under section 145 or 147 of Code of Criminal Procedure, 1973 [Edla Anjaiah v Purumalla Mallesham, (1998) Cr LJ 750 : 1997 APLJ (Cri) 427 : 1997 (5) Andh LD 157 (AP)]. [s 145.12] Object.—

Page 8 of 45 [s 145] Procedure where dispute concerning land or water is likely to cause breach of peace.— The object is to prevent a breach of the peace, and for that end, to provide a speedy remedy by bringing the parties before the court and ascertaining which of them was in actual possession and to maintain status quo until their rights are determined by a competent court [RH Bhutani Njitaom v Mani J Desai, AIR 1968 SC 1444 : 1969 Cr LJ 13 (SC); Debi Pd, 30 A 41, 42 : Baroda, 30 C 112; Krishna Kamini, 30 C 155; Tarapada, 32 C 1093; Daulat, 26 C 625; Kunja, 29 C 208].

Section 145 is frequently misapplied. Magistrates should be careful to see that the Criminal Courts are not used by the parties for the settlement of civil disputes [Mallappa, 27 Cr LJ 734; Khusiram, AIR 1921 L 185; Ghulam Mustafa Khan v Mohd. Rafiq Mir, (1988) 1 Crimes 474 (476) (J&K); Virendra Kumar v State of UP, 2003 Cr LJ 2709 (2712) : 2003 AIHC 2685 : (2002) 45 All CrC 187], or for maneuvering for position for the purpose of subsequent civil litigation [Chellapathi, 30 Cr LJ 340], or as an easy way of getting possession of the land in dispute without going to the Civil Court [Ma Gyi, 25 Cr LJ 1161; Nagro, AIR 1926 Nag 371], or for driving the other side to the Civil Court to prove his title [Gajadhar Singh v Chunni, AIR 1949 All 621 : (1949) 50 Cr LJ 967 : 1949 All WR 442 (1)]. The practice of taking to the Criminal Courts for a preliminary skirmish disputed questions of right and title is much to be depreacated [Amrit, 46 C 854, 860; Ali Md., 24 Cal WN 1039, 1048]. As a successful criminal proceeding offers certain advantages, persons of means are not infrequently tempted to resort to this section as a trial of strength, before civil litigation. [s 145.13] Meaning of dispute.— Section 145 comes into play when there is a dispute as to land, etc., likely to cause a breach of the peace. If a party has established his right in a Civil Court and obtained delivery of possession, is the dispute to be regarded at an end? Some earlier cases answered it affirmatively and held that in such a case the rule is, though there may be exception [see Parmeshwar, 1 PLJ 326 SB; Kedar, AIR 1923 Pat 364 : 72 Ind. Cas. 883; Bhulan, 25 Cr LJ 951] that it is the duty of the Criminal Court to maintain the rights of the party who got Civil Court decree or order without deciding against the question of possession [Atul, 20 Cal WN 796; Sims, 5 Cal WN 563; Kunja, 29 C 208; Gobinda, 6 C 835; Daulat, 26 C 625; Abhay, 27 Cal WN 267 : 73 Ind. Cas. 53; Pratap, 24 CLJ 279; Durganand, 25 Mad LJ 88; Madholal, 6 Cal WN 841; Behari, 5 PLJ 104; Md. Husain, 42 Cr LJ 147; Motilal, 6 Bom LR 246; Baldeo 2 ALJ 274; Narain v State of MP, 2007 Cr LJ (NOC) 347 (MP)]. These cases proceeded on the principle that once the Civil Court declared the right of the parties, that dispute was at an end and the defeated party could not be allowed to go to the Criminal Court to neutralise the effect of the decree [see Gobinda, 6 C 835, 841]. On the other hand, a later group of cases took the view that possession under section 145 has to be decided not on the basis of the right to possess, but the Magistrate is to find who is in actual possession notwithstanding the Civil Court decree or order in one’s favour [Ambar Ali, 32 Cal WN 275; Nafar, 22 Cal WN 479; Atul, 23 Cal WN 982; Basanta, 40 C 982; Kuloda, 33 C 33, 47].

The matter was gone into very carefully by a Full Bench in Calcutta which held that dispute means actual disagreement at the time of the proceeding under section 145 even though the question as to right to possession has already been decided by a Civil Court. Further, the Magistrate is to maintain possession of the person who is found to be in actual physical possession and not to maintain the decree. So hehas jurisdiction to start proceeding under section 145 in spite of delivery of possession by the Civil Court if there is a likelihood of breach of peace at the time of the application to court and to declare the possession of the party found to be in actual possession notwithstanding the order of the Civil Court [Agni Kumar, 32 Cal WN 1173 FB : see Rajendra, 19 PTL 632 : AIR 1939 P 151; SM Yaqub v TN Basu, AIR 1949 Pat 146 : (1949) 50 Cr LJ 299 : ILR Pat 1027; Rajndhan, AIR 1932 P 185; Sheonarayan Singh v Bharath Singh, AIR 1954 Pat 182 : 1954 Cr LJ 500 : ILR 32 Pat 227]. A dispute can exist notwithstanding a decision however recent of a Civil Court [Hosnaki v State, AIR 1956 All 81 : 1956 Cr LJ 168 : 1955 All WR 654].

When decree is passed by Civil Court in respect of the certain land in dispute, the Magistrate is not to exercise power under section 145 but to take action under section 107 [Shankarappa Gurappa Kirahagi v Ramanagowda Sahebagowda Patil, AIR 1969 Mys 297 : 1969 Cr LJ 1250 : 1969 (1) Mys LJ 420 : 1969 Mad LJ (Cri) 294]. Proceeding under section 145 during the pendency of a suit or proceeding regarding the same property is not without jurisdiction [Nata Padhan v Banchha Baral, AIR 1968 Ori 36 : 1968 Cr LJ 336 : 33 Cut LT 974; Chakrapani Mukhi v Dhruba Charan Mukhi, AIR 1967 Ori 39 : 1967 Cr LJ 395 : ILR (1966) Cut 329] but the position may be different if the Civil Court has put the property in custody of a court and thereby removed apprehension of breach of peace [Chakrapani, sup]. Proceeding need not be stayed pending civil suit [Alingal Mohamed Kutty v Vaniyanthodi Pathumma, AIR 1968 Ker 70 : 1968 Cr LJ 351]. Section 145 does not apply

Page 9 of 45 [s 145] Procedure where dispute concerning land or water is likely to cause breach of peace.— when the claim is regarding an undivided share of land [Ram Krishna Thajharia v Tetri Sahun, AIR 1959 Pat 476 : 1959 Cr LJ 1205 : 1958 BLJR 174]. The section does not apply to movable properties [Hiralal, 25 Cr LJ 440], or disputes relating to the offering at a temple [Guiram, 37 C 578; Ramsaran, 38 C 387; Sobhag, 28 Cr LJ 687], or disputes concerning live-stock [Fate Muhammad Khan Tiwana v The Crown, AIR 1949 Lah 273 : (1950) 51 Cr LJ 55], or exhibition of films [Najam-ul-Hussain v The Crown, AIR 1950 Lah 132 : (1950) 51 Cr LJ 1142]. The section should be given a liberal interpretation so as to include movable property attached to land or appertaining to it [Gaya Prasad v Emperor, AIR 1948 All 94 : (1948) 49 Cr LJ 15 : 1947 All LJ 533 : 1947 All WR 292]. It applies to immovable property which includes things attached to the earth, e.g., a mill [VP. Abu Syed Sahib v VP. Mohideen Sahib, AIR 1951 Mad 722 : 1951 (1) Mad LJ 429 : 1951 Mad WN 229 (1)]. Attachment of immovable property may incidentally include movable property which is either appurtenant to or, lying in, the immovable property [Sidiq Khan v Ghulam Qadir Khan, AIR 1963 J&K 2 : 1963 (1) Cr LJ 52]. See post “Land or Water”.

When the Executive Magistrate passed an order under sections 145, 146 of Code of Criminal Procedure, 1973 regarding the possession of disputed shops, it appears from the perusal of available evidence on records that he did not properly appreciate the same and therefore High Court remanded the case in order to be redecided by him in the interest of justice [Suraiya Begum v Musheer Ahmad, 1995 Cr LJ 3507 (All)].

Where it was admitted by Executive Magistrate that at relevant time, decision of possession over disputed land could not be done and therefore he passed a preliminary order of attachment of same properly and appointed a receiver on the basis of police report; there the order was held improper and beyond his jurisdiction [Pema Ram and others v State of Rajasthan, 1995 Cr LJ 1293 (Raj)]. [s 145.14] Analogous Acts.— The Curators Act, 19 of 1841, having a wider scope is more appropriate in disputes regarding large estates involving breach of the peace [Biso, 23 Cr LJ 237]. In the case of alluvial lands, the Magistrate may also deal under the Bengal Alluvial Lands Act, 5 of 1920 [Abdul Jabad, 28 Cal WN 783]. The effect of section 10 of the Act would be to stay earlier proceedings under section 145 [Digendra, 33 Cal WN 1115]. Section 171, Companies Act is not meant to override this section [Mukherjee, 37 Cal WN 932]. Section 145 applies to Evacuee Property Act, 1950 [Maqsood Alam v Mossamat Bibi Husna, AIR 1971 Pat 31 : 1971 Cr LJ 393 : 1971 BLJR 201 (Sayed Salahuddin Ahmad v Janki Mahton, AIR 1957 Pat 549 : 1957 Cr LJ 1161 : 1957 BLJR 86 : ILR 36 Pat 108 dissenting)] and to property allotted under Displaced Persons (Compensation and Rehabilitation) Act, 1954 [Partap Singh v State, AIR 1966 Punj 246 : 1966 Cr LJ 688 : 1965 Punj LR (Supp) 111]. Bar of jurisdiction under section 8, Maharashtra Vacant Lands (Prohibition of Unauthorised Occupation and Summary Eviction) Act 1975 does not apply to a proceeding under section 145 [Chandu Naik v Sita Ram B Naik, AIR 1978 SC 333 : 1978 Cr LJ 356 : (1978) 1 SCC 210 (SC)].

Section 145 is a preventive provision, attended to prevent a breach of the peace. If there is no dispute likely to cause breach of the peace, proceedings under the section cannot be initiated. Not only there must be a dispute but the dispute must also be likely to cause a breach of peace [Digambar Jain Sabha, Simla v State of UP, 1984 Cr LJ 272 : 1983 ((2) Crimes 203 : 1983 Sim LC 215 : 1983 (2) Chand LR (Cri) 368 (HP)]. [s 145.15] Object of maintaining peace.— Maintenance of public order is the paramount consideration. Passing of order in favour of one party or other is incidental. It cannot be said that in case of co-tenancy or possession of co-sharers order under section 145 cannot be passed. The Executive Magistrate found the second party to be in exclusive possession, because in revenue proceedings, the names of the first party were directed to be expunged from revenue records. It was held that the finding of the Magistrate about possession could not be interferred with, in revision under sections 397 and 403 [Sachchidananda Misra v State of UP, 1987 Cr LJ 1366 All : 1987 All Cr C 161 : 1987 All WC 598]. [s 145.16] Guiding principles of application of section 145.— The principles that govern the application of the section and the determination of the question within it are fairly well-settled and they may be epitomised as follows:

Page 10 of 45 [s 145] Procedure where dispute concerning land or water is likely to cause breach of peace.— (1) (a) There must be a dispute relating to land, and (b) the Magistrate must be satisfied (from report of police officer or other information, or his own knowledge that there is a likelihood of breach of the peace, i.e., that heads were likely to be broken. Mere existence of dispute without any present fear of breach of the peace is clearly not sufficient to give the Magistrate jurisdiction [Kuloda, 33 C 33, 42; Haricharan, 35 Cal WN 1005; Stewart, 33 Cal WN 509; Shibnarayan, 24 Cal WN 621; Hiralal, 34 Cr LJ 449; Munnulal, 26 Cr LJ 944; Anadi, 34 Cal WN 899]. The promulgation of a preliminary order as contemplated under section 145 (1) of Code of Criminal Procedure, 1973 is the foundation for the exercise of jurisdiction by the Executive Magistrate. In any event, the prejudice to the petitioners leading to the failure of justice is apparent in the instant case in view of non-recording of evidence and consideration of the same as provided under section 145(4) of Code of Criminal Procedure, 1973. Mere mentioning of some facts relating to dispute in summons does not fulfil the requirement [Indira v Dr. Vasantha, 1991 Cr LJ 1798 : 1990 TLNJ (Cri) 66 (Mad) (Arunachalam, J.)] (2) The Magistrate’s jurisdiction is restricted only to the prevention of a breach of peace [Md. Ishaq, AIR 1945 All 60 : (1945) 15 AWR 294 ] by maintaining provisionally the possession of the party who is found to be in actual possession immediately before the dispute until the rights of the parties are determined by a competent court [ante]. (3) “Dispute” does not come to an end merely because the rights of the parties have been determined in a Civil Court. Nor does it mean only bona fide dispute. “Dispute” means actual disagreement existing between the parties on the question of possession at the time of the proceeding under section 145. So, in spite of there being a decree for delivery of possession by the Civil Court in favour of a party, a Magistrate has jurisdiction to decide who among the parties is, at the time of the proceeding under section 145, in actual possession and to maintain his possession though wrongful [ante, Agni Kumar, 32 Cal WN 1173 FB : 56 C 290; Hosnaki v State, AIR 1956 All 81 : 1956 Cr LJ 168 : 1955 All WR 654; Gaya Pd, AIR 1934 Pat 471 : 155 Ind. Cas. 36 ; Ram Kripal, AIR 1941 Pat 516 ]. (4) The Magistrate’s duty is only to declare and maintain the possession of the party who is found on inquiry to be in actual possession. “Actual possession” is actual physical possession and this question must be determined irrespective of title or the right to possession [Ambasr Ali, 32 Cal WN 275; Rahimalishah, AIR 1940 SC 61 ; Penumasta, 39 Cr LJ 922; Abdul Latif, AIR 1936 N 3; Sabda, 27 Cr LJ 784; SM Yakub v TN Basu, AIR 1949 Pat 146 : (1949) 50 Cr LJ 299 : ILR 27 Pat 1027; Gainda Lal Sharma v Bishamber Nath Kumar, AIR 1949 E Punj 231 : (1949) 50 Cr LJ 573 ; Virendra Kumar v State of UP, 2003 Cr LJ 2709 : 2003 All LJ 1336 : 2002 (2) All Rent C 28 : 2002 (3) All WC 2043]. It means actual physical possession even though wrongful [Agani Kumar, sup]. If the Magistrate finds that in spite of the declaration of title in favour of a party, another person is in actual possession, he must declare that person’s possession [Yakub, sup; see further post; Fact of Actual Possession]. (5) The enquiry under section 145 of Code of Criminal Procedure, 1973 is confined to the question of actual possession only, the Magistrate cannot enquire into the rights, title or interest of the parties [Gangadhar Behera v Surendra Banik, 2003 (5) AIC 560 ; Ranbir Singh v Dalbir Singh, AIR 2002 SC 1500 : 2002 Cr LJ 2017 (2019) : 2002 SCC (Cri) 704 : 2002 (2) Crimes 24 ; Ramesh Chandra Saxena v V Addl. Sessions Judge, 1998 Cr LJ 3794 (3797); Pramod Kumar Singh v State of Bihar, 2006 (3) Pat LJR 67 (Pat); Kashi Nath Gogoi v Thambahadur Dorjee, 2009 (1) GLR 106 ]. (6) As the question of “actual possession” is to be determined “without reference to the merits of the claims to a right to possess” [sub-section (4)], it is plain that questions of title cannot be investigated or decided. The doctrine that “possession follows title” has no application here [Akshay, 26 Cal WN 1000; Khartar Sao v Pradip Singh, AIR 1952 Pat 234 : 1952 Cr LJ 699 ]. Question or evidence of title is irrelevant except in so far as it may have a bearing on the fact of actual possession [see SM Yakub v TN Basu, AIR 1949 Pat 146 : (1949) 50 Cr LJ 299 : ILR 27 Pat 1027; Kali Kristo, 7 C 46; Debendra 37 Cal WN 851; Sunderlal, 38 Cr LJ 375; Sriram, 29 Cr LJ 902; Panaganti, 34 M 138; Ranchi, etc., A 1939 P 209; Ambar Ali, 55 C 826; Agnikumar, 32 Cal WN 1173 FB]. Meredith, J. deplored that in spite of many decisions to the contrary Magistrates invariably allow the question of title to be dragged in and “eventually in a lengthy judgment the Magistrate deals with the title elaborately, and then with the actual evidence of possession in two or three lines” [SM Yakub v TN Basu, AIR 1949 Pat 146 : (1949) 50 Cr LJ 299 : ILR 27 Pat 1027]. (7) As the only object of the section is to prevent a breach of peace and a speedy remedy is provided by a summary proceeding, it is of the utmost importance that a decision on the question of possession

Page 11 of 45 [s 145] Procedure where dispute concerning land or water is likely to cause breach of peace.— should be given in the shortest possible time [Tarapada, 32 C 1093; Surjyakanta, 30 C 508; Ma Nyain, 30 Cr LJ 344; Moti Singh, 24 Cr LJ 595; Ganpat, 29 Cr LJ 676; Gaya Pd, A 1934 P 471] without allowing it to be dragged on for months and even years [see remarks of Meredith, J., in SM Yakub v TN Basu, AIR 1949 Pat 146 : (1949) 50 Cr LJ 299 : ILR 27 Pat 1027]. (8) Before taking action, the Magistrate should in the context of the particular facts before him consider which will be the most appropriate section for meeting the case. Section 145 is not the only weapon for the maintenance of peace in connection with dispute over land. He has a power especially adapted to cases of urgency under section 144, and in some cases, section 107 will suffice. He has discretion to make use of any section which he considers most suitable and the word “shall” in sub-section (1) of section 145 need in no way embarrass any Magistrate in exercising his discretion. If he thinks that the case calls for action under section 107 or section 144, he can postpone all action under section 145 [Agni Kumar, 32 Cal WN 1173, 1185 FB]. As to applicability of section 145 or section 107, see notes to section 107 ante. If Magistrate considers it a case of emergency, but is unable to make up his mind for action under section 145 without a report of police officer, he may in the meantime take action under section 144 and convert it into a proceeding initiated under section 145 if necessary [Atar Khan v The State, AIR 1960 Ass 109 : 1960 Cr LJ 891 ]. A proceeding initiated under section 145 may be converted to one under section 107 or section 144 or section 147 if it is considered more appropriate at any subsequent stage [Sham Rao Deorao Marathe v Emperor, AIR 1948 Nag 76 : (1948) 49 Cr LJ 61 : 1947 Nag 360; Tiloki, AIR 1921 M 410; Anathbandhu, AIR 1925 C 1022]. The Magistrate should not resort to section 170 simultaneously unless exceptional circumstances exist [Kamal Magray v Ghulam Mohammad Wani, AIR 1961 J&K, 4 : 1961 (1) Cr LJ 62 ]. There is no legal bar to simultaneous proceedings under section 107 and section 145, if they arekept quite separate without mixing them up though it be unusual [Kanhaiyalal v Devi Singh, AIR 1961 MP 302 : 1961 (2) Cr LJ 642 : 1961 Jab LJ 443 ].

Magistrate is not incompetent to enquire into and determine question of actual possession at relevant time on account of mutation order by Tahsildar. [JSChauhan, 1990 U P Cr R 62].

In a proceeding under section 145, the Magistrate has no power to pass an interim order to give back possession to one who claims to have been dispossessed, unless and until the rights of the parties have been considered on the materials already showing the rights of the parties. Such an order would be exercise of a jurisdiction not vested by law [A H Wheeler and Co Pvt Ltd, Muzaffarpur v State of Bihar, (1988) Cr LJ NOC 6 : 1988 BLJ 278 : 1988 Pat LJR 119 : 1988 BLJR 325 (Pat)].

The continuance of a proceeding under section 145 for a long time betrays the basic structure of the proceedings. These proceedings, being based on apprehension of breach of peace, are basically preventive and not punitive. If an element of possession in fact has to be determined, that question should be decided expeditiously, as it involves an apprehension of breach of peace and preventive measures. A proceeding under section 145 is distinguishable from the title suit, which is a surer test of all the connected issues and gives final stamp on the right of the parties settling the dispute primarily once for all [Nathuni Sah v Sk.. Mohammad Jan, (1987) Cr LJ 1239 : 1986 BLJR 652 : 1986 BLJ 729 Pat)].

Finding of court in ceiling proceedings between parties that opposite parties who are sisters of petitioners are in physical possession of land based on evidence adduced is a finding of fact and cannot be interfered with. Moreover, proceedings under section 145 do not operate as a final seal upon rights of parties to possess a particular piece of land. Nor it decides title of parties. Remedy is to file civil suit for declaration of title and right to possess [Shahabuddin Basi v State of Bihar, 2003 Cr LJ NOC 47 : 2002 (1) East Cr C 411 (Pat)]. [s 145.17] Parties co-sharers possessing and cultivating land without partition— Unity of possession.— Where it was admitted by both the parties that there was unity of possession over disputed land and there was a family arrangement. There was no imminent apprehension of breach of peace. It was held that though the situation was tense, the proceedings under sections 144, 145 under the circumstance would not solve the

Page 12 of 45 [s 145] Procedure where dispute concerning land or water is likely to cause breach of peace.— problem and therefore, denial of imitation of proceedings under section 145 was proper. Krishnadhan Mishra v State of Jharkhand, 2006 Cr LJ (NOC) 476 (Jhar) : 2006 (2) AIR Jhar R 743. [s 145.18] Points of procedure, etc.— District Magistrate has no authority to direct a Magistrate to institute proceedings. It is a matter within the latter’s discretion [Nripendra, 34 Cal WN 82 : 31 Cr LJ 923]. But where, under such direction, a proceeding under section 145 is drawn up, it is not without jurisdiction provided there were sufficient materials for it [Kedar, AIR 1929 C 751]. Where a Magistrate has refused to take action, the district Magistrate may draw up proceedings on the same materials [Benoy, AIR 1920 C 1049].

A proceeding under section 144 may be converted into one under section 145 if found more appropriate [Nandkishore, AIR 1922 P 537 : 23 Cr LJ 200; Gopala, 21 Cr LJ 73 : Gobindram, AIR 1929 P 46; Sheobalak, 2 P 94 FB]. The expression conversion is merely a misnomer. When a Magistrate purports to convert a proceeding pending under section 144 into one under section 145, he initiates a fresh proceeding under section 145 [Bijendra Rai v Mohan Rai, 1978 Cr LJ 306 : 1978 BBCJ 134 : ILR (1977) 56 Pat 389 (Pat)]. An order making such conversion must be passed before expiry of order under section 144 [Hadu Khan v Mahadev Das, AIR 1968 Ori 221 : 1968 Cr LJ 1623 : 34 Cut LT 537]. See further below “section 144 and section 145.”

Order of District Magistrate to substitute proceeding under section 145 in place of section 144 is illegal. The Magistrate must judge for himself and do what he thinks proper [Tiloki, AIR 1921 M 410]. A proceeding under section 145 may be converted into one under section 147 [Anathbandhu, AIR 1925 C 1022], or under section 107 [Abbas, 39 C 150 FB; Thakur, 34 A 449; Autar Singh v State, AIR 1954 All 461 : 1954 Cr LJ 976 : 1954 All WR 285; Madha, AIR 1942 P 331; Shamrao Deorao Marathe v Emperor, AIR 1948 Nag 76 : (1948) 49 Cr LJ 61 : 1947 Nag LJ 360] if considered more appropriate.

When proceeding under section 145 has been drawn up and written statements have been filed, Magistrate cannot make a short cut by substituting a proceeding under section 144 with a view to avoid the trouble of taking evidence [Doman, AIR 1940 P 382]. The dissolution of previous order under section 144 is no bar to proceeding under section 145 in respect of the same land, if there is a likelihood of the breach of peace [Turu Majhi v State, AIR 1953 Cal 397 : 1953 Cr LJ 908 : 57 Cal WN 311].

No warrant can be issued to compel attendance of parties [Kefatulla, 5 Cal WN 71]. They cannot be compelled to appear in person or execute bonds for appearance. They may appear by pleader. If any party is wanted as a courtwitness, summons should be issued [Manikyala, AIR 1946 M 447]. A landlord may be represented by his employees [Turu Majhi v State, AIR 1953 Cal 397 : 1953 Cr LJ 908 : 57 Cal WN 311].

Proceedings under section 145 are not a trial. Provisions of sections 353 and 354 are not applicable, and if at all, section 326 alone is applicable [Thikka Surya Rao v Sirangu Sathiraju, AIR 1948 Mad 510 : (1948) 49 Cr LJ 754 : 61 Mad LW 344 : 1948 (1) Mad LJ 396]. Omission to read over evidence does not vitiate proceedings [Sondi, A 1924 P 786]. A police enquiry on petition under section 145 is not an “investigation”. So an order disallowing cross-examination of a witness in respect of statements to the police is not erroneous as section 162 does not apply [Padmaraju Konetiraju v Padmaraju Subbaraju, AIR 1954 Mad 1019 : 1954 Cr LJ 1565 : 1954 Mad WN 462].

Once the hearing is commenced, it should go on from day to day; then order should be passed quickly [Sastu, AIR 1924 P 689]. This is now especially enjoined in section 309 (1). Proceedings may be postponed sine die [Gurudas, 13 Cal WN 601— Contra : Abdul Rauf, 13 Cal WN 104].

Application to take cognizance of a dispute under section 145 is not a complaint and cannot be dismissed for default in the appearance of the informant. The proceeding being started in the interest of public peace, it should be continued so long as no order is made under sub-section (5) [Bhavrao Ganpatrao v Bhimarao Tukaramji, AIR 1958 Bom 450 : 1958 Cr LJ 1383 : 60 Bom LR 80 : ILR (1958) Bom 544; Sajdari, 1950 ALJ 292; Munik, 6 Cal WN 923; Babu, 1950 A ll3]. If a party after initiating a proceeding under section 145 files a civil

Page 13 of 45 [s 145] Procedure where dispute concerning land or water is likely to cause breach of peace.— suit, he cannot ask the Magistrate to stay the proceedings. The inquiry can be proceeded with unless Magistrate cancels the preliminary order made under sub-section (5) on the ground that no dispute exists [Ram Prasad v Banwari, AIR 1956 All 12 : 1956 Cr LJ 3 : 1956 All LJ 77]. On a complaint under section 145 the other party cannot be warned through police without taking evidence and deciding the matter [Satyanarayana, AIR 1946 M 412].

A person making vague allegations as to his possession cannot apply for being impleaded. The police in this case too had not reported that the revisionist was an interested party. There was no inkling to indicate the interest of the revisionist. Therefore, there was no jurisdiction to implead him [Narendra Pratap Singh v State of UP, 1991 Cr LJ 1531 : (1991) 18 All LR 289 : 1991 All Cr R 127 (All)]. [s 145.19] Sections 145 and 482.— Where the property is in joint possession and a party files a civil suit and obtains ad interim injunction and after suppressing facts that applies under section 145 and gets the property attached, it has to be held that it is abuse of the process of court and has to be quashed [Zareefa v Habib Lone, 1990 Cr LJ NOC 22 : 1989 (3) Crimes 308 (J&K)].

Proceedings under section 145 are on behalf of the State and processes should be issued at government expense [Shutanja, AIR 1925 N 142 : 25 Cr LJ 1109].

Specification of additional property after the passing of preliminary order does not vitiate the proceeding if the party appearing takes notice of it and knows well the subject matter of dispute [State of MP v Premlal, AIR 1957 Nag 27 : 1957 Cr LJ 212 : 1956 MPLJ 190 : 1956 Nag LJ 766].

A preliminary order may be modified at any stage [Kookkil Kelu Nair v Kottammal Thanduparakkal Kurhi Mohammed Haji, AIR 1971 Ker 20 : 1971 Cr LJ 218 : 1969 Ker LT 899; (Ganga Singh v Raj Bahadur Singh, AIR 1958 All 803 : 1958 Cr LJ 1369 followed)].

Proceedings may be amended on a change in the constitution of the parties thereto [Bibi Soghra v King Emperor, AIR 1948 Pat 77 : (1947) 48 Cr LJ 440 : 220 IC 536]. When the parties in the several proceedings are not the same, Magistrate cannot try them together even if they consent [Kumar, 4 Cal WN 743].

When a proceeding is once dropped, it cannot be reopened or revived. A fresh proceeding may be drawn if there are fresh materials [Samad Ali, AIR 1923 C 314; see post “Fresh Proceedings”]. Nor can the High Court direct a revival of proceedings stayed by the Magistrate [Manindra, 30 C 112].

Where Magistrate decided the matter in favour of petitioner, same was reversed in revision. Ultimately when the said matter was put upbefore the High Court, the High Court in its exercise of inherent powers, interfered in finding of the revisional court’s order and passed an order in the favour of petitioner to meet ends of justice [Mahatma Ram Charan Das v State of UP, 1995 Cr LJ 1632 (All)].

Proceedings initiated during pendency of title suit are liable to be quashed [Mani Chara Das v State of Jharkhand, 2003 Cr LJ NOC 3 : 2002 (2) Crimes 496 : 2003 (2) BLJR 873 : 2002 (1) JCR Jha 352 : 2002 (2) East Cr C 45 (Jhar)]. [s 145.20] Section 145.— A party, in whose favour an ad interim injunction against dispossession was granted by a Civil Court, approached the executive authority for protection, during the pendency of the civil suit, as the party was apprehending that the other party might forcefully take possession of the property in dispute inspite of the orders of the Civil Court. At the instance of that party, proceedings under section 145 of Code of Criminal Procedure, 1973 were initiated. It was held that the said proceedings could not be set aside on the ground that they were parallel proceedings initiated during the pendency of the civil suit. Though the civil suit and the

Page 14 of 45 [s 145] Procedure where dispute concerning land or water is likely to cause breach of peace.— proceedings under section 145 of Code of Criminal Procedure, 1973 were related to the same property in dispute, the said proceedings were not parallel proceedings but they were started in the aid of the Civil Court [Jagdish Ram v State of Haryana, 1990 Cr LJ 1917 : 1989 (2) Rec Cr R 440 : 1989 Chand Cr C 424 : 1989 (16) Cr LT 176 (P&H)].

There is nothing in section 145 allowing withdrawal of a proceeding. It can be terminated only in manner provided in sub-section (5) [Basdeo v Badri Narain, AIR 1952 All 186 : 1952 Cr LJ 379 : 1952 All WR 113]. Costs may be awarded to successful party (see section 148 post).

If a party is absent, the Magistrate can proceed ex parte and hear the other party and take evidence. But he cannot base an order merely on the absence of one party without taking evidence [Shanu Mea v Nandu Mea, AIR 1959 Tri 25 : 1959 Cr LJ 774].

When part of an order under section 145 is invalid, the rest is intra vires [Ramsaran, 38 C 387; Ram Niranjan Missir v Kamdeo Missir, AIR 1959 Cal 196 : 1959 Cr LJ 634 : 1958 Pat LR 352 : 1959 BLJR 78].

Where document filed by the parties showed that features of land were complicated, the Magistrate was justified in appointing a survey known pleader commissioner to measure land and delineate salient features thereof on maps [Sakhichand Sahu v Ishwar Dayal Sahu, AIR 1967 Pat 351 : 1967 Cr LJ 1555 : ILR 46 Pat 306; see Shah Jamilur Rahman v Abdul Aziz, AIR 1960 Pat 240 : 1960 Cr LJ 843 :1960 Pat LR 30 : 1960 BLJR 179].

A violation of prohibitory order under section 145 cannot be taken cognizance of by the Magistrate who passed it. He has to prefer complaint under section 188 of Indian Penal Code, 1860 [Mahendra Prasad Singh v State of Bihar, AIR 1970 Pat 102 : 1970 Cr LJ 484]. [s 145.21] Magistrate empowered.— It is only the Magistrate mentioned in the section who can initiate proceedings in his discretion. [K Pounrajan v Collector Chennai District, 2004 Cr LJ 1465 : 2004 Mad LJ (Cri) 55 : 2004 (3) Rec Cr R 788 (Mad)]. Therefore, the district Magistrate [Nripendra, 34 Cal WN 81; Kailash, 24 C 391] or the Sessions Judge or the High Court [Gobind, 20 C 520; Manindra, 30 C 112; Law & Co, 3 P 809] cannot direct the initiation of proceedings, nor can the High Court direct revival of proceedings stayed by Magistrate [Manindra, sup]. But a superior court may draw the Magistrate’s attention to nature of dispute for proper exercise of his discretion [Gobind, sup; Kailash, sup; Lakhanao, 10 Cr LJ 231].

Magistrate can summon accused and reject final report if prima facie case is made out from material produced by an investigating agency. [Bhagwan Das Agrawal v State of UP, 1990 Cr LJ 916 : 1990 JIC 24 (All)].

It is illegal for a Magistrate drawing up the proceeding to direct the parties to appear before another Magistrate [Misri, AIR 1921 Pat 333; Basudeva, 24 PLT 326; Ramjharia, 24 Cr LJ 557]; but a proceeding can subsequently be transferred to another Magistrate to the extent and within the provisions of section 411 [see notes to 411, post]. Final order can be passed by the Magistrate initiating the proceeding as also by another Magistrate of first class (now Executive Magistrate) to whom District Magistrate may transfer the case [Ram Kissore, 10 Cal WN 1095]. Proceedings of a Magistrate not empowered are void (section 461).

Jurisdiction of the Sub-divisional Magistrate under section 144 or 145 is concurrent with that of the Executive Magistrate. Initiation of proceedings by Sub-divisional Magistrate cannot be interfered with in revision [Murlidhar Das v Dhruba Charan Das, (1989) Cr LJ NOC 163 : 1988 (1) Ori LR 465 : 1980 OCR 232 Ori].

Existence of a dispute likely to cause breach of the peace is the foundation of the Magistrate’s jurisdiction. Proceeding is incompetent where this likelihood does not exist [see ante, Nikunja, 31 Cal WN 242; M.D. Madhi,

Page 15 of 45 [s 145] Procedure where dispute concerning land or water is likely to cause breach of peace.— AIR 1926 SC 53; MD Khandu, AIR 1923 C 577; Ramjharia, AIR 1923 P 369; Rammanorath, AIR 1933 O 253; Turab, AIR 1933 L 145; Haricharan, 35 Cal WN 1003]. The provision of making the order in writing and stating grounds of satisfactions is mandatory [Peria Mannadha Goundar v Marappa Goundar, AIR 1969 Mad 411 : 1969 Cr LJ 1410 : (1969) (1) Mad LJ 37 : 1968 Mad LW (Cri) 179; Newa Lal Sharma v Bikku Sharma, AIR 1970 Pat 386 : 1970 Cr LJ 1575 : 1969 Pat LJR 621]. It is desirable to record the reasons for being satisfied [Srichand v Dhundi Ram Mathuri, AIR 1955 All 56 : 1955 Cr LJ 178 : 1954 All LJ 595 : 1954 : All WR 459]. It was a one-time thought that the section applied only to bona fide dispute [Gobind, 6 C 835; Rambaran, 28 A 406], but it has been subsequently held that it applies to all disputes whether mala fide or bona fide [Agni Kumar, 32 Cal WN 1173 FB; Madho, AIR 1942 P 331]. A dispute though the contending parties are not in actual possession is within the section [Fate Muhommad Khan Tiwana v The Crown, AIR 1949 Lah 273 : (1950) 51 Cr LJ 55]. As to what is a “dispute”, [see Agni Kumar, 32 Cal WN 1173 FB].

Before taking action, a Magistrate is bound to be “satisfied” that the dispute is such that there is an apprehension of breach of peace [Gobind, 20 C 520, 526; Stewart, 33 Cal WN 509 : 30 Cr LJ 977; Low & Co, 3 P 809; Kulada, 33 C 33; Anesh, 28 C 446; Khudiram, 46 Cal WN 608] and if he does not satisfy himself, the proceeding shall be void under section 461 [Gobind, sup, p 526]. The question whether on the materials before the Magistrate he should initiate proceedings or not is in his discretion to be exercised in accordance with the well-recognised rules of law. He can arrive at his satisfaction both from the report of police officer or from other information which must include an application by the party dispossessed [RH Bhutani v Mani J. Desai, AIR 1968 SC 1444 : 1969 Cr LJ 13 (SC); Shamrati Kuer v Janki Saran Singh, 1981 Cr LJ 978 : 1981 Pat LJR 166 : 1981 BLJR 263 (Pat)]. He must himself be satisfied [Anunda, 9 WR 64] and form his own independent judgment without acting automatically on the opinion of the police [Kulada, 33 C 33, 42; Ganga, AIR 1924 P 787; Gani Khan, AIR 1928 N 81], the responsibility being entirely his. Even when police report says there is no apprehension of breach of peace after hearing the parties, he can form his own view [Ramnarain Shama v Mahesh Narain Sharma, 1981 Cr LJ (NOC) 198 : (1981) 20 DLT 80 : 1981 Chand Cr C 120 (Delhi)]. In order that a Magistrate can act on a report of police officer it must contain sufficient material for being satisfied that a breach of the peace is likely [Md. Araf, A 1936 SC 143; Kulada, sup; Dhanput, 29 C 513]; otherwise he will be justified in refusing to take action [Ram Manorath, 34 Cr LJ 943; Radhagobind, 6 Cal WN 340]. He is not bound to act on all that is said in the report of police officer [Laldhari 27 C 892] nor he is restricted to its letter [Mahadeo, 24 LJ 263]. Proceeding instituted on report of police officer which does not clearly show likelihood of breach of the peace is void [Dhanput, 20 C 513; Suryakant, 11 Cal WN 198; Maharaj, 11 Cal WN 835]. The duty of police officer is to report whether there was any apprehension of the breach of the peace and not to assume the function of the Magistrate by saying that the allegations of the petitioner were unfounded [Ambika Singh v State, AIR 1961 All 38 : 1961 (1) Cr LJ 15 : 1960 All LJ 782 : 1960 All WR 607]. It is not the report of police officer alone but all the other materials on which he is to decide that gives a Magistrate jurisdiction [Ahmed Ali, 33 Cal WN 858]. When the report of police officer on which the proceeding was started was treated as the main evidence of possession, such use was not proper and it should be excluded as evidence of possession [Sashimukhi, 31 Cal WN 310]. A district Magistrate can institute proceeding on a report of police officer on which a subordinate refused to act [Baidyanath, 29 C 242]. Order cannot be made on alleged statements of police not on record [Raju, AIR 1941 M 751]. The use of the report of police officer is for initiating the proceeding; it is not evidence and it is inadmissible thereafter [Bhadreswari, 7 BLR 329; Kulbans, 21 Cr LJ 735]. [s 145.22] Breach of peace.— Satisfaction about likelihood of breach of peace at the time of institution of proceedings is necessary. But likelihood of breach of peace need not continue throughout the proceeding [Vijay Kumar v Neeraj Kumar, 1990 Cr LJ 21 (J&K)]. [s 145.23] Management of schools.— Magistrate cannot decide the issue as to whether or not a Principal of an institution can continue to discharge duties as the Principal. The provisions contained in the Education Act and the Regulations have provided as to what will happen if the Principal is not functioning. The fact of continuance on the charge of the office of the Principal of an institution has to be decided either by the authorities under the Act or by a competent Civil Court, if permissible under the law. It is beyond the scope of the proceedings under section 145 of Code of Criminal Procedure, 1973 to permit the Magistrate to decide the matter [Committee of Management Sri VD Misra Higher Secondary School, Kanpur v Additional City Magistrate, Kanpur Nagar, 1990 Cr LJ 1906 (Allahabad High Court)]. [s 145.24] Meaning of information.—

Page 16 of 45 [s 145] Procedure where dispute concerning land or water is likely to cause breach of peace.— “Other information” (see ante, sections 107, 111). The widest possible latitude has been given. “Information” is not used in a technical sense. It may come from any source, e.g., statements in the application by a private party [RH Bhutni v Mani J Desai, AIR 1968 SC 1444j : 1969 Cr LJ 13 (SC); Jhaman, 21 Cr LJ 625 : 1 PLT 359; Gowri, 6 PLT 215 : AIR 1925 P 553; Dutta Ray, ILR 1948 2 Cal 73; Madho, AIR 1934 N 194], or the statement of one witness [Bibi Ashgari, 36 Cr LJ 656, 664], or from any source whatever [Gowri, AIR 1925 P 553]. All that is required is that the Magistrate should be satisfied. But a telegram is not enough [Harilal, 22 B 949, 956]. It is not necessary that before being satisfied the Magistrate should call for a report of police officer [RH Bhutani, sup] or make a preliminary inquiry [Ashgari, AIR 1935 C 316].

It is essential that the Magistrate should be satisfied that there is a likelihood of a breach of the peace at the time of initiating the proceeding [Kuloda, 33 C 33, 42; Stewart, 33 Cal WN 509], i.e., a present danger and not in future [Haricharan, 35 Cal WN 1003; Stewart, sup; Kuloda, sup; Jagabandhu, 40 Cal WN 351; Shibnarayan, AIR 1943 P 44]. A breach of peace which is likely to occur at some future time is too remote for the purpose of the section [Janu, 8 Cal WN 590; Damodar, 7 C 385; Basseo 26 A 190; Jagabandhu, sup]. This present danger of a breach of the peace must be put in the forefront of proceedings [Ganga, 15 A 394]. In some cases, “likelihood” and “imminent” are used interchangeably.

But it has been pointed out that the introduction of the word “imminent” or “immediate” for interpreting “likelihood” is not justified. The “likelihood” of a breach of the peace is sufficient, though not a mere “probability” [Kuloda, sup; Haricharan, sup; Todarmal, 53 A 215; Baliram, 33 Cr LJ 937], or a contesting mood [Mannu, AIR 1925 O 416]. If the danger is real, there need not have been overt acts of violence [Krishna Kamini, 30 C 155, 200]. When the apprehension of a breach of the peace is colourable, proceedings should not be taken [Gobind, 6 C 835; Damodar, 7 C 385; Obhoy, 10 C 78]. A fugitive act of trespass or transient interference with the possession of one party by the other party would not change the character of the dispute which essentially relates to civil rights [Renu Sachdeva v Commander BS Rekhi, 1985 Cr LJ 688 : 1984 (2) Crimes 945 : 1995 Raj LR 96 : 1985 Chand Cr C 147 (Del)].

The likelihood of a breach of the peace must exist at the time of initiation of the proceeding [Anadi, 34 Cal WN 899 : AIR 1930 C 715; Chhedi, 23 Cr LJ 27] and so if at the time of the order there were not enough materials, the defect of jurisdiction should not be cured by evidence at the trial that there was a likelihood of a breach of the peace [Kalikissen, 23 C 557; Gobind, 25 C 520; Pratap, 24 C 55; Ganga, 15 A 394; Bisram, AIR 1945 O 62], but this view has not been approved [Kuloda, 33 C 33, 42]. Thus, proceedings taken on a report of police officer made several months ago is illegal [Andia, sup; Chhedi, sup; Kshetromoni Panda v Raghunath Patnaik, AIR 1953 Ori 255 : 1953 Cr LJ 1499 : 19 Cut LT 139 : ILR (1953) Cut 333; Peria Mannadha Gounder v Marappa Goundar, AIR 1969 Mad 411 : 1969 Cr LJ 1410 : 1969 (1) Mad LJ 37 : 1968 Mad LW (Cri) 179]. Direction under section 145 after finding that there was no likelihood of breach of a peace is without jurisdiction [Mahalakshmi, AIR 1923 M 472].

Once a Magistrate is satisfied about the likelihood of a breach of the peace and institutes a proceeding he has no jurisdiction to record a contradictory finding at a subsequent stage about the non-existence of such likelihood even if no evidence is given. His next duty is to confine himself to the question of possession [Abdul Rauf v Mohd. Shafi, AIR 1956 All 337 (2) : 1956 Cr LJ 663 : 57 Bom LR 1056 : (1956) 7 STC 404]. It is at the time of the preliminary order that the Magistrate should satisfy himself as to the likelihood of a breach of the peace, but it is not required that in his final order there should be a repetition of the finding of the imminence of the breach [Maqimunnissa, 26 Cr LJ 1581; Gobardhan, 44 Cal WN 427; Ram Pd, 28 Cr LJ 847; Chiranji, AIR 1932 A 683; Kamal, 36 M 275; Gurditta, AIR 1939 L 108; Sheo Pd., AIR 1940 N 265; Hari Ram v Banwari Lal, AIR 1967 Punj 378 : 1967 Cr LJ 1051]. The continuance of a breach of the peace is not necessary before a final order could be passed [Amritlal N Shah v Nageswara Rao, AIR 1947 Mad 133 : (1974) 48 Cr LJ 435 : 1946 (2) Mad LJ 349 : 59 Mad LW 645]. [s 145.25] “Local jurisdiction”.— Land or water must be within the jurisdiction of the Magistrate taking action [Baliram, AIR 1946 N 56; Chellapathi, 52 M 241; Venkatachalam Chetty v Ramaswami Chetty, AIR 1949 Mad 563 : (1949) 50 Cr LJ 866 : 61 Mad LW 848 : 1949 (1) Mad LJ 646]. Where it is partly within and partly outside his jurisdiction, he can take action only with respect to the former portions [Korban, 1 CLJ 329 : 2 Cr LJ 406], though he can act upon the

Page 17 of 45 [s 145] Procedure where dispute concerning land or water is likely to cause breach of peace.— report of police officer of another district [Ihsan, 29 C 885]. Where it is not certain within which of two areas the land falls, proceedings may be taken by the Magistrate of any of such areas [Iklas, 11 Cr LJ 527]. Where proceeding was started on police report in respect of property outside Magistrate’s jurisdiction, it was held that such defect was not fatal in absence of prejudice or failure of justice [Sukhdeo Yadav v Hari Shakar Lal, 1976 Cr LJ 1204 : 1976 All LJ 240 : 1976 All Cr C 131 (All)Ram Chandra Prasad v State of Bihar, AIR 1961 SC 1629 : 1961 (2) Cr LJ 811 (SC); Mangaldas Raghavji Rupharel v State of Maharashtra, AIR 1966 SC 128 : 1966 Cr LJ 106 (SC) relied on)]. Where District Magistrate having jurisdiction transfers a case to another Magistrate, it is not necessary that the latter should have local jurisdiction [Rajmohan, 5 Cal WN 686; see however Chellapathi, 52 M 241]. [s 145.26] “Shall make an order in writing.....Being so satisfied”. [Preliminary order].— This is the preliminary order after the Magistrate is satisfied that there is danger of the peace. No sustained enquiry is contemplated before such order which should be passed without delay [Md. Ali, AIR 1940 SC 33]. Satisfaction arrived on basis of police report is sufficient [Ashrafilal v Labh Singh, 1981 Cr LJ 1172 : (1981) 19 DLT 450 : 1981 Raj LR 413 (Del)]. The provision in section 145 (1) is mandatory. Preliminary order must state clearly the reasons and grounds on which satisfaction is based and the Magistrate has applied his mind [Gabrial Thakayyan v Narayanan Nadar Peerumal, 1977 Cr LJ 1870 : 1977 Ker LJ 511 (Ker) (Peria Mannadha Gounder v Marappa Goundar, AIR 1969 Mad 411 : 1969 Cr LJ 1410 : 1969 (1) Mad LJ 37 : 1968 Mad LW (Cri) 179 followed; A. Bhaskara Narayan v So. Merrugesan, 2003 (4) Crimes 438 (439) : 2004 Cr LJ (NOC) 91 (Mad) : 2004 Mad LJ (Cri) 50)]. It may be passed merely on examination of complainant [U. Pinnya, AIR 1931 R 51]. When is a Magistrate “satisfied” [see Faqir Chand Sultani Ram v Bhana Ram Mansa Ram, AIR 1957 Punj 303 : 1957 Cr LJ 1450 : 59 Punj LR 404]. It is by this order that the proceeding is instituted and it shall contain—(1) the reasons and grounds on which the Magistrate is satisfied [Gabriel, sup]; (2) a clear statement of the subject matter of the dispute [Khartar Sao v Pradip Singh, AIR 1952 Pat 234 : 1952 Cr LJ 699]; (3) the date on which and time at which the parties are to appear; and (4) a direction to put in written statements relating to the fact of actual possession claimed by them. The order drawn up should be correct and complete and satisfy in all respects the requirements of the law [Mahesh, 27 C 981] and it should not be allowed to lapse into a routine [Munnalal, AIR 1935 Nag 78]. Order omitting to direct parties to attend Court within a certain time is an irregularity [Jai Lal v State, AIR 1955 All 51 : 1955 Cr LJ 147 : 1954 All LJ 591 : 1954 All WR 426]. The source of information need not be stated [Sher, 25 Cr LJ 48]. The order is to be addressed to known individuals and is not to be in the form of a public proclamation or citation [Kunund, 4 C 650, 653].

Where the Magistrate expressed his satisfaction on the basis of the facts set out in the application made before him and after he had examined the applicant on oath, but the Magistrate had failed to record in his preliminary order the reasons for his satisfaction, it was held that those facts prima facie sufficient and were the reasons leading to his satisfaction [Darshan Lal v Sain Dass, 2002 Cr LJ 3214 (3216) (J&K); S Jc Ramesh Babhu v Executive Engineer-cum-Revenue Divisional Officer, 2005 Crimes 161 (Mad)].

Where no preliminary order is passed under section 145(1), the order of attachment under section 146(1) of Code of Criminal Procedure, 1973 becomes ex facie illegal & void [Jagdish Bhai Dharamsi Thakore v State of Gujarat, 1997 (4) Crimes 160 (165); A. Bhaskaran Narayan v So. Murugeshan, 2003 (4) Crimes 438 (438) : 2004 Cr LJ (NOC) 91 (Mad) : 2004 Mad LJ (Cri) 50]. [s 145.27] Omission to draw up orders.— Some cases have held that omission to draw up this order stating the grounds of satisfaction and other requirements invalidates all proceedings [Banwari, 32 C 552; Sukru, 30 C 443 : Manik, 6 Cal WN 923; Banka, 49 A 325; Chanan, AIR 1938 L 345; Sis Ram, 32 Cr LJ 139; Lingajja, 1932 MWN 320; Hakam, AIR 1924 L 91; Sri Ram v The State, AIR 1958 Punj 47 : 1958 Cr LJ 215 : 59 Punj LR 422; Mariasusai, AIR 1936 M 824; Lakhpat, AIR 1947 O 159; Abdul Aziz Khan v Badri, AIR 1948 Oudh 184 : (1948) 49 Cr LJ 291 (2); Pakamaraja Naicker v Chidambara Nadar, AIR 1955 Mad 229 : 1955 Cr LJ 700 : 1954 (1) Mad LJ 476 : 1954 Mad WN 145; Manikam Reddy v Yamani, AIR 1966 AP 63 : 1966 Cr LJ 248 : 1965 (2) Andh WR 496 : 1965 Mad LJ (Cri) 893]; C. Chaluve Gowda v State of Karnataka, 1978 Cr LJ (NOC) 253 : 1978 (2) Kant LJ 246 : 1978 Mad LJ (Cri) 449 (Kant); Mirza, 1983 Cr LJ (NOC) 153 (Kant); Sardarilal v State of Punjab, 1980 Cr LJ 1151 : 1980 Chand LR (Cri) 248 (P&H)]. The other view is that jurisdiction is not affected when there is omission to record a formal order but there are materials on record to satisfy the Magistrate. But it is otherwise when there are no materials [Ram Piari v Dankhoaua, AIR 1949 All 402 : (1949) 50 Cr LJ 655 : 1949 All LJ 16 : 1949 All WR 79; Kapoor Chand, AIR 1933 A 264 FB; Narsingh Padam Saran Shah v Suraj Kishore Devi, AIR 1951 All 826 : 1951 Cr LJ 1501 : 1951 All LJ 714; Parmatma v State, AIR 1954 All 24 : 1953 Cr LJ 1892 : 1953 All LJ 601 :

Page 18 of 45 [s 145] Procedure where dispute concerning land or water is likely to cause breach of peace.— 1953 All WR 468; Dirgopal, 5 DLR (P) 50; Ratan, A 1939 L 233]. Omission to record is not a question of jurisdiction and if it has caused prejudice the proceeding is not vitiated [Madan, AIR 1932 A 446; Khangar v Jhamman, AIR 1950 All 734 : 1950 All LJ 692 : 1950 All WR 640; Wazir Mahton v Badri Mahton, AIR 1950 Pat 372 : 1950 Cr LJ 1365]. It is curable under section 465 where no objection was raised and no prejudice was caused [Mohan, 34 Cr LJ 1138; Kapoor, AIR 1933 A 264 FB : 34 Cr LJ 414; Mg Po, AIR 1925 R 111; Ratan, AIR 1939 L 233], or when the parties appear and the Magistrate explains all that is necessary [Nur Baksh, AIR 1917 L 35], or draw up an order in their presence [Sajad Husain, 18 Cr LJ 461]. Notice signed by headclerk of Magistrate is not preliminary order [Kandappa, AIR 1961 AP 108].

The grounds which satisfy the Magistrate of a likelihood of breach of the peace must be stated in the order [Jagomohan, 28 C 416; Khubi, 22 Cr LJ 481; Meah, 39 Cr LJ 708; Faqir Chand Sultani Ram v Bhana Ram Mansa Ram, AIR 1957 Punj 303 : 1957 Cr LJ 1450 : 59 Punj LR 404; Ashrafilal v Labh Singh, 1981 Cr LJ 1172 : (1981) Raj LR 443 : (1981) 19 DLT 450 (Del)] even though the Magistrate acts upon a local enquiry by himself [Nityanund, 32 C 771]. The object is that not only should the Magistrate consider well whether there is sufficient ground for proceeding, he should also inform the parties what case they have to meet [Govinda, 20 C 520, 526]. An order is not bad because it is not self-contained; as when the grounds are in the report of police officer to which reference is made and which is incorporated in the proceedings [Khosh Md., 33 C 352 FB; Sheo Pd., AIR 1940 N 265; Munnulal, AIR 1935 N 78; Sayad, 3 Cr LJ 487; Depu Kachari v Padma Kanta Barua, AIR 1952 Ass 185 : 1952 Cr LJ 1693 : ILR (1952) 4 Ass 323]. Decisions do not appear to be agreed as to whether omission to state grounds does or does not affect the Magistrates jurisdiction. It appears to have been answered affirmatively in some cases [Nityanand, 32 C 771; Banka, 1927 A 286; Bisram, AIR 1947 O 159; Lakhpat, AIR 1947 O 159; Pandurang, 24 B 527; Hiralal, AIR 1933 A 96]. In others the view taken is that the proceeding will not be vitiated if there is substantial compliance with the requirements, i.e., the Magistrate is satisfied from the materials before him but omits to record the grounds of his being so satisfied [Har Piari, 18 ALJ 1140; Har Pd, 1905 AWN 260; Brahma, AIR 1932 A 681; Md. Shahdishah, 26 Cr LJ 1292; Prabhu Dayal, 25 Cr LJ 1139 : Iklas, 11 Cr LJ 69]. Once a Magistrate is satisfied from the information at his disposal that a breach of the peace is likely, he gets jurisdiction and his subsequent action is in relation to procedure. If the procedure is defective it does not affect jurisdiction and under section 465 is curable [Kamal, 37 M 275; Kapoor, 55 A 301; Narsingdas, AIR 1934 N 112; Ashgari, 1935 O 316; Natho, AIR 1932 SC 145; Barmha, 54 A 1002; Vidya Ram v Ganga Sahai, AIR 1953 All 455 : 1953 Cr LJ 1009 : 1952 All LJ 221]. If the grounds of satisfaction are not stated, it may be challenged in proper timeand got rid of or corrected. But as the irregularity does not affect jurisdiction it can be relied on as vitiating the final order, only if it has caused prejudice [Khudiram Mandal v Jitendra Nath, AIR 1952 Cal 713 : 1952 Cr LJ 1411 : 56 Cal WN 608].

The reasonable view would probably be that having regard to the object of the provision, viz., to enable the parties to know the case they have to meet, the mere omission of a Magistrate to state in the order the grounds of his satisfaction, if he is in fact so satisfied and there are materials on the record to support it, is not an illegality invalidating the proceedings but a curable irregularity unless prejudice is caused thereby [see Khash Md., 33 C 352 FBante;SM Yakub v TN Basu, AIR 1949 Pat 146, 148 : (1949) 50 Cr LJ 299 : ILR 27 Pat 1027; Wazir Mahton v Badri Mahton, AIR 1950 Pat 372 : 1950 Cr LJ 1365; Khudiram Mandal v Jitendra Nath, AIR 1952 Cal 713 : 1952 Cr LJ 1411 : 56 Cal WN 608]. So when both parties were fully aware of the matter in dispute, the mere omission to state the grounds of satisfaction did not invalidate the proceedings [Ganga Saran, 32 A 132]. If the omission causes no prejudice, High Court will not interfere in revision [Chennapudayan, 30 M 548].

If the preliminary order is passed after written statements were filed and the matter was posted for inquiry, it is an irregularity which does not vitiate proceedings if no prejudice is caused [Nageshwar Singh v State, 1952 All LJ 441 : 1953 Cr LJ 1056 : AIR 1953 All 471 : 1952 All WR 595]. In the preliminary order both parties cannot be restrained from entering the property. In case of emergency the property can be attached under section 146. But to attach the property is not the thing as ordering both parties to vacate it [U. Pyinna, AIR 1931 R 51].

The preliminary order under section 145 (1) need not be in any particular form, but it must contain the required particulars [Ram Prasad v State of Rajasthan, 1984 Cr LJ NOC 130 : 1983 Raj LR 751 : 1983 WLN 430 (Raj)]. [s 145.28] “Parties concerned in such dispute” : [Who are necessary parties].— One view is that the parties concerned means not only the parties disputing but also those claiming a right to

Page 19 of 45 [s 145] Procedure where dispute concerning land or water is likely to cause breach of peace.— the property in dispute and as such interested in the order for possession [see Ram Ch, 21 C 29; Ganesh, 4 Cal WN 753; Laldhari, 27 C 892 : Anesh, 28 C 446; Mangal, 6 Cal WN 101; Kuppayer, 18 M 51; Nathubhai, 11 Bom LR 377]. The other view is that the phrase means person claiming to be in possession at the time of the initial order and likely to commit a breach of the peace. A Full Bench in Calcutta ruled in favour of this view. Parties interested in or claiming the property in dispute are not necessary parties, the inquiry being confined to actual possession and the object of the section being to prevent a breach of the peace by the disputants. The words “parties concerned” therefore mean (i) all persons claiming to be in possession at the time of the order and (ii) may extend to persons other than the actual disputants (for a party may not be a party to a dispute likely to cause a breach of the peace) who may nevertheless claim to be in possession [Krishna Kamini, 30 C 155 FB : 6 Cal WN 737; Leela Singh v BP Singh, AIR 1946 Pat 389 : (1946) 47 Cr LJ 1013 : 227 IC 157; Purnendu Narayan v Akhouri Jagnnanth Prasad, AIR 1952 Pat 270 : 1952 Cr LJ 942; see Abadi Begam, AIR 1925 Oudh 190; Bhuneshwar, 37 Cr LJ 886; Md. Mahdishah, 26 Cr LJ 1292; Mahadeo, AIR 1945 Oudh 12; Bisram, AIR 1945 Oudh 62].

If after issuance of the preliminary order under section 145(1) the Magistrate gets information that some other person is also concerned in the dispute, he may be impleaded as a party; [Gangasingh v Mohd. Shah Khan, 1976 Cr LJ 357 : 1975 All Cr C 331 : 1975 All WC 580 (All)]. Persons not impleaded in original petition but interested in the subjectmatter can be made parties without first summoning them to show cause [N. Swamynath v BN Ramakrishna, 1979 Cr LJ (NOC) 137 : 1979 (1) Andh LT 179 (AP)]. If a person is not mentioned in the original petition as a party but on a report of a police officer that he was the only rival claimant, the Court issued notice on him, he was a proper party [Meher Ali v Tulsi Charan Chatterji, AIR 1952 Cal 204 : 1952 Cr LJ 571]. Order in favour of a party not mentioned in the original report, but who appeared and filed written statement after affixation under sub-section (3) is valid [Leela, sup; Javaregowda v Mullegowda, AIR 1967 Mys 169 : 1967 Cr LJ 1153 : 1967 Mad LJ (Cri) 529].

It is upon the basis of the information that the Magistrate is in the first instance to select the persons whom he will require to attend. Sub-section (3) is intended to empower the addition of other persons who may appear to be proper parties, up to the time of enquiry and no fresh proceeding is necessary. Addition of parties after commencement of enquiry is an irregularity [Krishna Kamini, 30 C 155 FB (Hill, J, at p 201 observed that addition after the enquiry has begun may necessitate the taking of evidence again if the parties so require); Manmatha, 20 Cal WN 978]. New party can be impleaded after preliminary order and if written statements have been filed, the preliminary order is to be treated as modified so far as the party is concerned [Chandi Kumar Sarkar v Probhat Kumar Biswas, AIR 1968 Cal 216 : 1968 Cr LJ 600]. When hearing has already commenced, third party cannot as of right claim to be added as party, especially when he was not in possession at the relevant date [Purnendu Narayan v Akhouri Jagannath Prasad, AIR 1952 Pat 270 : 1952 Cr LJ 942].

Mysore Muslims Wakf Board is an interested party in wakf property [The Secy. Mysore Board of Wakfs v Mahboob Ali Maniyr, AIR 1962 Mys 128 : 1962 (2) Cr LJ 77]. Order under section 145 is not bad merely because all interested persons are not made parties. If necessary parties are not impleaded, they will not be bound by the order [Bholanath Dhar v Gour Gopal, 58 Cal WN 11 : AIR 1953 Cal 777 : 1953 Cr LJ 1782; Ram Naryan Goswami v Biswanath Goswami, AIR 1959 Cal 366 : 1959 Cr LJ 705]. Proceedings are not without jurisdiction because some of the parties made are concerned only with the possession of a portion of the land [Narayan, 26 Cr LJ 1289], or because some of the persons claiming possession are not likely to cause a breach of the peace [Abadi, AIR 1925 O 190], or because some of the persons claiming possession of the disputed lands or a portion have not been made a party, they not being likely to cause a breach of the peace. Questions of misjoinder or nonjoinder of parties do not ordinarily go to the jurisdiction in criminal cases [Krishna Kamini, 30 C 155, 200 FB; Moiram, 47 C 438; Inderdeo, AIR 1938 P 1; Mahadeo, AIR 1945 O 12; Ambika, 18 P 544; Bindhyachal Prasad Varma v Madho Singh, AIR 1946 Pat 330 : ILR 25 Pat 99 : (1946) 47 Cr LJ 328; Nandan, 26 Cr LJ 1287; Bholanath Dhar v Gour Gopal, AIR 1953 Cal 777 : 1953 Cr LJ 1782 : 58 Cal WN 11]. In the case of cosharer landlords, one set is capable of representing the entire body [Raja Gope, AIR 1939 P 353]. One cosharer does not represent another [Alarakshi Bibi v Ujala Bibi, AIR 1966 Or 49 : 1966 Cr LJ 275 : 31 Cut Lt 112 (Raja Gope, sup dissented)].

Where landlords claim possession through tenants, the latter are necessary parties [Gurudas, 38 C 889; see Haridas, 19 Cal WN 959; Laldhari, 27 C 872; Nagarmal, 38 Cr LJ 395]. But as between rival landlords if one is found to be in possession through tenant, a declaration may be granted in his favour even if the tenant is not a

Page 20 of 45 [s 145] Procedure where dispute concerning land or water is likely to cause breach of peace.— party [Venugopal, AIR 1945 M 255]. If the dispute is between tenants or sub-tenants, the landlords need not be made parties [Rajaram, AIR 1942 M 534; Manik, 6 Cal WN 206]. The lessor need not be a party in a dispute between rival lessees [Bhuneshwer, 37 Cr LJ 886]. In dispute regarding several plots of land belonging to one landlord and his tenants, joint enquiry is not illegal unless prejudice is caused [Jaga Kishan v Benimadhab Supakar, AIR 1966 Ori 122 : 1966 Cr LJ 681 : 32 CutLT 103]. Undivided brothers are necessary parties [Janoki, 3 Cal WN 329] but not a reversioner who has no right to present possession [Balkishan, 24 A 443].

It was held in some cases that managers, agents or servants who possess on behalf of their principal or master are not necessary parties [Behary, 21 C 915; Brown, 25 C 423; Peare Lal, 36 Cr LJ 114; Nagoji, 18 Cr LJ 44]. But a FB in Calcutta held that Magistrate has jurisdiction to make an order under section 145 in favour of one who claimed to be in possession of the disputed land as agent to or manager for the owners when they are not residents within the jurisdiction of the court [Dhondhai, 31 C 48 FB; Thakur Jaikrit Singh v Sohan Raj, AIR 1959 Raj 63 : 1959 Cr LJ 379 : 1959 Raj LW 140], and when a manager was made a party instead of the proprietor who lived within the jurisdiction, it was held to be a mere irregularity [Bholnath, 32 C 237; Chhakauri, 27 Cr LJ 142]. An order in favour of manager or guardian finding possession with him on behalf of the proprietor is not without jurisdiction [Langar Mahton v Radha Mahton, AIR 1954 Pat 135 : 1954 Cr LJ 209 : 1953 BLJR 518 : ILR 32 Pat 621]. When a servant who alleges that possession is with his master is the complainant, no order can be passed in favour of the master who is not a party [Rup Chand Moran v Bhagalu Singh, AIR 1954 Ass 77 : 1954 Cr LJ 525 : ILR (1953) 5 Ass 156]. Owner of land residing opposite disputed land is party and not the servant who did not claim actual physical possession [Dudh Nath Singh v Sarju Siingh, AIR 1970 Pat 132 : 1970 Cr LJ 722 : 1969 Pat LJR 153]. Possession not as servant or workman but as an independent sub-contractor does not exclude applicability of a section 145 [Caetano Colaco v Joao Rodrigues, AIR 1966 Goa 32 FB : 1966 Cr LJ 1412].

Receiver [see Dunne, 30 C 593; Maddipoli, 9 Mad LJ 502; Fink, 30 C 721; Chinna, 12 Cr LJ 185]. Liquidator [see Mukherjee, 37 Cal WN 932]. In dispute between two communities persons, who represent them should be selected as parties [Nanhe, AIR 1925 All 316 : 86 Ind. Cas. 59]. [s 145.29] “Written statement of their respective claims”.— Written statement should be taken from all parties [Raghunath, 25 Cr LJ 906]. Of course it is of itself no evidence unless facts stated are proved [Kefatullah, 5 Cal WN 71]. If a party fails to appear or to file written statement, no order can be passed merely on the written statement of the other party without enquiry into possession and evidence [Nojem, 12 Cal WN 771; Gobind, 8 Cal WN 642; Ramijharia, 24 Cr LJ 557]. Magistrate has discretion to refuse or grant time to file written statements [Govind, sup; Piziruddin, 14 Cr LJ 302], but reasonable time should be granted [Mansur, 12 Cal WN 893; Raghunath, 25 Cr LJ 906], the effect of rejection being that order under the section will not bind that party [Raghunath, sup]. Where neither party filed written statement or adduced evidence although sufficient time was given, order under section 146 was upheld [Bijoy, 14 Cal WN 80]. [s 145.30] “Fact of actual possession”.— As discussed earlier, the Magistrate’s only duty is to determine who is in actual possession and not who has the right to possession, and “actual possession” means actual physical possession even though wrongful, e.g., that of a trespasser or of one who has wrongfully got into possession by ousting another who was given possession by order of the Civil Court [Agni Kumar, 32 Cal WN : 1173 : 56 C 290 FB; SM Yakub v TN Basu, AIR 1949 Pat 146 : (1949) 50 Cr LJ 299 : ILR 27 Pat 1027 : Rahimalishah, 41 Cr LJ 493; Abdul Latif, AIR 1936 N 3; Rajnandan, AIR 1932 P 185 : Sabda, 27 Cr LJ 784; Penumatsa, 39 Cr LJ 922; Sriram, 29 Cr LJ 902; Sheonarayan Singh v Bharath Singh, AIR 1954 Pat 182 : 1954 Cr LJ 500 : ILR 32 Pat 227 : AIR 1954 P 182; Sohan Mushar v Kailash Singh, AIR 1962 Pat 249 : 1962 (1) Cr LJ 749 : 1961 BLJR 865], or of a squatter [Manickam, 1937 MWN 732] or of an encroacher [Dibabhoi, (1976) 43 Cut LT 205]. The word “actual” is used in contradistinction to constructive possession [Rajaram, A 1942 M 534; Rangaraju, AIR 1938 M 654; Cactano Calaco v Joao Rodrigues, AIR 1966 Goa 32 : 1966 Cr LJ 1412 FB] : Meaning of actual possession [Partap Singh v State, AIR 1966 Punj 246 : 1966 Cr LJ 688 : 1965 Punj LR (Supp) 111; Atma Ram v Mool Chand, 1985 Cr LJ 264 : 1983 (2) Crimes 696 (Raj)].

The word “actual” should be heavily underlined. It is the possession of the person who has his feet on the land, is ploughing, sowing entirely irrespective of any right or title to possess it [Ambar Ali, 32 Cal WN 275, 280]. The possession must be absolute, continuous and not occasional [Nayan Manjari, 49 C 87; Lokenath, 31 Cal WN

Page 21 of 45 [s 145] Procedure where dispute concerning land or water is likely to cause breach of peace.— 334; Manik, 17 Cal WN 206]. Meaning of continuous possession [Lokenath, sup]. But continuity is to be determined by reference to the kind of possession which the object is capable of [Lokenath, sup (fallow land liable to be submerged)]. Nature of possession of forest land [see Bholanath, 32 C 287], or of sub-soil mineral [Ranchi, AIR 1939 P 209; SM Yakub v TN Basu, AIR 1949 Pat 146 : (1949) 50 Cr LJ 299 : ILR 27 Pat 1027].

As between rival landlords or between a landlord and the tenants of another landlord, the possession of the tenant is the possession of the landlord [Venugopal, AIR 1945 M 255; Karnadhar, 1948 (1) Cal 150]. Receiving rents of tenants is actual possession [Nabin, 25 WR 18; Mahesh 26 Cr LJ 398]. Fact of attornment by tenants to strangers does not put an end to landlord’s possession [Sarbananda, 15 C 527; Indramoni Devi v Raghunath Bhanja, AIR 1950 Ori 59 : (1950) 51 Cr LJ 674 : ILR (1949) 1 Cut 635; see however Suraj, 33 Cal WN 574].

The possession of an usufructuary mortgagee cannot be disturbed under the section [Sahid, 22 Cr LJ 561]. Section 145 applies to dispossession of tenant by landlord [Md. Ali, AIR 1938 L 122]. Mere fact that a lease has been determined by efflux of time is not enough to show that the lessee has no actual possession [Bindhyachal Prasad Varma v Madho Singh, AIR 1946 Pat 330 : (1946) 47 Cr LJ 328 : 222 IC 611].

Possession of agent or servant is possession of master as section 145 is not meant to protect the possession of servant or manager against his master [Thaylee, AIR 1923 M 60; Perumal, 34 Cr LJ 88; Bajirao, AIR 1926 N 286; Balak Das v Bhagwan Das, AIR 1960 Pat 60 : 1960 Cr LJ 269 : 1959 BLJR 407]. But when the dispute is between master and servant about possession, it cannot be said that in no case can be invoked under section 145 [Thakur Jaikrit Singh v Sohan Raj, AIR 1959 Raj 63 : 1959 Cr LJ 379 : 1959 Raj LW 140].

If the evidence of actual possession of a party is unreliable, the Magistrate can declare the possession of that party in whose favour there is a clear declaration of title [SM Yakub v TN Basu, AIR 1949 Pat 146 : (1949) 50 Cr LJ 299 : ILR 27 Pat 1027; Jagdamba, AIR 1937 O 510]. So also when evidence as to possession is equally balanced [Akshay, AIR 1923 C 303; Depu Kachari v Padma Kanta Barua, AIR 1952 Ass 185 : 1952 Cr LJ 1693 : ILR (1952) 4 Ass 323]. Where there is a scramble for possession and evidence is scrappy, land should be attached under section 146 [Alluri Venkata Suryanarayanaraju v Pakalapati Sundara Ramachandraraju, AIR 1948 Mad 118 (1) : (1948) 49 Cr LJ 65 (1) : 1947 (2) Mad LJ 276 : 60 Mad LW 576]. A dispute as to the right to pass through a wicket is not a question of possession [The State v Padma Kant Malviya, AIR 1955 All 377 : 1955 Cr LJ 904].

Delivery of possession under O XXI, rule 35 to the decree-holder as against the judgment-debtor is as effective as actual physical possession, especially where under the circumstances actual physical possession cannot possibly be given [Tara Singh v Gurdial Singh, AIR 1959 Punj 518 : 1959 Cr LJ 1212 : 61 Punj LR 522; Rajendra, AIR 1939 Pat 151].

Under section 145, the Magistrate has jurisdiction to declare possession of a person in possession on the date of preliminary order. Date of the preliminary order is one of the important facts for the purpose of exercise of jurisdictions under section 145, where the question is of adding more properties to the proceeding. Addition of further land to the preliminary order already passed may, however, lead to confusion with regard to the date of possession which is to be decided in the proceeding itself and which is material for the purpose of passing an appropriate order. Hence, order refusing to recall the order passed earlier could not be sustained. Magistrate was directed to consider the question afresh and also to consider whether the preliminary order already passed could be amended to include more area. [Nityanand Senapati v State of Orissa, (1989) Cr LJ 1201 : 1989 OCR 81 (Ori)].

The Magistrate cannot without determining the question of possession, prohibit both the parties from entering into the disputed land. Such an order is illegal and can be quashed under section 482 [Venkatakrishnan v State of TN, 1989 Cr LJ 1836 : 1989 (1) Crimes 236 Mad].

In a Delhi case, the Sub-Divisional Magistrate while deciding in proceeding under section 145 of Code of

Page 22 of 45 [s 145] Procedure where dispute concerning land or water is likely to cause breach of peace.— Criminal Procedure, 1973 held that the petitioners were in possession of the disputed premises and contained to remain in possession. The Additional Session Judge, on the other hand, held that the respondents were in possession and continued to remain as such. But this fact was beheld by the respondent’s own application field in High Court where they stated that the respondent had been put into possession on a date after institution of suit for possession.

There was nothing on record to show that the respondents were dispossessed during proceeding under section 145 of Code of Criminal Procedure, 1973 by the petitioner. The Sub-divisional Magistrate was right in holding that the possession of the premises in dispute was that of the petitioner [Kamal Ram v Inder Singh Solanki, 2004 Cr LJ 3641 : (2004) 111 DLT 810 : (2004) 75 DRJ 445 (Del)]. [s 145.31] Joint possession.— The section does not apply when two parties are in joint possession and one of them tries to evict the other so as to endanger public peace. It applies to a dispute between parties each of whom asserts the right to hold exclusive possession as against the other [Tarujan, 4 Cal WN 426; Krishna, 7 Cal WN 118; Makhan, 11 Cal WN 512; Md. Beg, AIR 1941 O 515 : Arjun, 22 Cr LJ 625; Basanta, 40 C 982; Agni Kumar, 32 Cal WN 1173, 1184 FB, Gopala, 21 Cr LJ 73 : Bisram, AIR 1945 O 62]. When parties are in joint possession of wakf property, proceedings are not maintainable [Chaudhary Ashahar Husain v The State, 1978 Cr LJ (NOC) 192 All. Contra : A claim to exclusive possession by one party against a claim by the other party to be in joint possession with him is not less a question of disputed actual possession that if each party claimed exclusive possession of the entire area [Nandkeshwar, AIR 1932 P 366; Zafar, AIR 1940 P 135 : 41 Cr LJ 171; Venkatraman, AIR 1930 B 172 : 31 Cr LJ 933; Rajkishore, 19 PLT 211]. So a coparcener can sustain a plea that he alone is in exclusive possession for time being [Kapildeo Narain Singh v Ramdahin Singh, AIR 1953 Pat 363 : 1953 Cr LJ 1747 : 1953 BLJR 382 (2)]. But when the Magistrate finds that the contesting parties are in joint possession, he becomes functus officio [Khem Chand v Balwant, AIR 1967 All 44 : 1967 Cr LJ 18 : 1967 All WR 113] and no order should be made under the section [Nandkishore, AIR 1923 P 546; Rampabiter, AIR 1922 P 423; Rambirtu, 22 Cr LJ 350 (C); Sheo Pd., AIR 1940 N 265; Gopi Nath Singh v Emperor, AIR 1948 Oudh 130 : (1948) 49 Cr LJ 202; Mallik Rafia v Mallik Abdul Hakim, AIR 1953 Ori 278 : 1953 Cr LJ 1596 : ILR (1952) Cut 626; Nahar Singh v The State, AIR 1951 Raj 156 : 1951 Cr LJ 1209; Hanumappa v Kondappa, AIR 1964 Mys 195 : 1964 Cr LJ 319] though the property can be attached under section 146 [Kinu, 23 Cal WN 1051; Kodanmal, AIR 1945 SC 110]. The position, however, becomes different when one of the parties is found to be in actual possession of the whole [Sheo Pd., AIR 1940 N 265 : 41 Cr LJ 799; Ashrafilal v Labh Singh, 1981 Cr LJ 1172 : (1981) 19 DLT 450 : 1981 Rajd LR 443 (Del)].

When parties in joint possession try to oust each other, no order can be passed declaring joint possession as peace cannot be maintained in the way [Koolayppa, 15 Cr LJ 572]. In such cases, the Magistrate may attach the property under section 146 [Chiranji, AIR 1932 A 683], or may take action under section 107 [Santi Pd., 1937 OWN 214]. When joint possession is found, the proceedings should be terminated [Kodanmal, AIR 1945 SC 110]. Where the second party was found to be in possession on behalf of the first party as also of himself, declaration of second party’s possession is illegal [Kinu, 23 Cal WN 1051].

The section applies to disputes between partners or co-sharers each claiming to be in exclusive possession of the disputed land to the exclusion of others [Malan, 2 L 373; Basanta, 17 Cal WN 944; Baijnath, 20 Cal WN 518; Makhan, 11 Cal WN 512; Gopikrishna, 1977 All Cr R 24].

The section does not generally apply to undivided share of land [Araf, 37 Cr LJ 1030; Nirmala Barman v Ratima Barman, 2002 Cr LJ 1865 (1867) (Gau) : 2002 (4) Crimes 291 : 2002 (2) Gau LR 410], or to dispute between co-shebaits of debutter property as their possession is joint [Nityagopal, 10 Cal WN 1088]. An order that one party was in possession all the year while the other was to be in joint possession for a part of the year is illegal [Rohini, 30 Cal WN 873]. [s 145.32] Even if opposite party claims joint possession.— Then proceeding under section 145 is maintainable [Mondo Kumbharuni, 69 (1990) Cut LT 274].

Where a property is in the joint possession of two or more persons and one party claims joint possession and

Page 23 of 45 [s 145] Procedure where dispute concerning land or water is likely to cause breach of peace.— the other claims exclusive possession, the Magistrate, before making an order under section 145 must give a finding whether possession was joint or exclusive [Urvasi v State, (1989) Cr LJ (NOC) 147 : 1988 (3) Crimes 504 : 1989 Kash LJ 11 : 1988 Srinagar LJ 482 J&K]. [s 145.33] Possession of specific portion of joint property or of divisible portions.— Even in case of ejmali, or joint property where each party claims to be in exclusive actual possession of specific portions of the same, the section applies [Basanta, 40 C 982; Zafar, AIR 1940 P 135; Nandkeshwar, AIR 1932 P 366; Sudamawati Kuer v Ram Chandra Singh, AIR 1963 Pat 320 : 1963 (2) Cr LJ 313 : 1963 BLJR 665; Laxamanappa, AIR 1935 N 44; Wazir Chand v Rawal Chand, AIR 1947 Lal 227 : (1947) 48 Cr LJ 844 : 48 R 1924 Cal 444 : 72 Ind. Cas. 32Punj LR 499 : 227; Ramzan, 35 Cr LJ 1384; Jaymangal, AI].

Where part of joint family property is in possession of one member, proceedings do not lie [K. Janardhan Reddy v VI City Magistrate, AIR 1969 AP 150 : 1969 Cr LJ 644 : 1969 (2) Andh LT 110 : 1969 Mad LJ (Cri) 166]. Where it is found that one party is in possession of a portion of the land and the other party is in possession of the rest and the possession of one causes no interference with the possession of another, Magistrate can maintain possession of both parties [Kangali, 11 Cal WN 743; Sadar Ali, 5 Cal WN 510]. But when the subject of dispute is one and indivisible and one party is not in possession of the whole, the proper order is to attach under section 146 [Katras Jherriah, etc., 22 C 297; see Mahadei, 42 A 214]. [s 145.34] Ex parte hearing—Recall of ex parte order.— In the instant case, the Magistrate could not have considered the evidence of those five witnesses who were examined on behalf of the second party at the stage of ex parte hearing because subsequently the order of ex parte hearing was recalled. It was incumbent upon the Magistrate to give an opportunity to the first party to cross-examine those five witnesses. The Magistrate could have considered the evidence of those five witnesses of the second party only after the first party would have cross-examined. In view of the above, the order declaring possession in favour of the opposite party to land in dispute was held liable to be set aside [Saukat Hussain v Mustakeem Ansari, 2006 Cr LJ 330 (331) (Jhar)]. [s 145.35] “Land or water” : [Sub-section (2)].— These words have been restored from the Code of 1872 as the words tangible immovable property (in the Code of 1882) where found to be unduly restrictive of the jurisdiction of the Magistrate [See Hurbullubh, 26 C 188]. The words have been given a comprehensive meaning in sub-section (2) and the words “includes” there shows that other matters may come in than those stated, e.g., dispute relating to possession of a temple [Hardeo v Ram Lal, AIR 1953 All 382 : 1953 Cr LJ 828 : 1953 All LJ 127 : 1953 All WR 55]; right of ferry [Hurbullubh, 3 Cal WN 49]; of fisheries of Jalkar [Balajit, 35 C 117; Amulya, 24 Cal WN 1075; Brajasundar Deb v Moni Behara, AIR 1951 SC 247 : 1951 SCR 431 (SC)]; markets [Dunne, 30 C 593; Brahmanand, 50 C 380]; mining rights [Andrew Yule & Co, AIR 1910 P 210; Sundarmal, AIR 1917 P 183; Ranchi, etc., 18 P 215; Bimala, AIR 1922 C 83; SM Yakub v TN Basu, AIR 1949 Pat 146 : (1949) 50 Cr LJ 299 : ILR 27 Pat 1027]; Trees [Surjakanta, 11 Cal WN 198; Ali Md., 24 Cal WN 1039], but not when felled [Sajad, 18 Cr LJ 461—Contra : When still lying on the disputed land [Gaya Prasad v Emperor, AIR 1948 All 94 : (1948) 49 Cr LJ 15 : 1947 All LJ 533 : 1947 All WR 292; Rev A. Rampus v Alumuri Subba Reddi, AIR 1950 Mad 658 : 1950 (1) Mad LJ 213 : 63 Mad LJ 409]; right to tap a tree [Jiblal, 19 Cr LJ 656], right to a completed bund (but to construct it) [Sashibusan, 33 Cal WN 1004]; right to sit in a particular spot to receive offerings [Abdul Majid, AIR 1941 Nag 171]; Shamilat land [Giani, AIR 1963 L 1015].

“Land” is used as synonymous with immovable property which includes things attached to the earth. A mill therefore falls within it [VP Abu Syed Sahib v VP Ahmed Mohindeen Sahib, AIR 1951 Mad 722 : 1951 (1) Mad LJ 429 : 1951 Mad WN 229 (1)]. It does not include movables [Md. Beg, AIR 1945 O 515]. [s 145.36] Disputes relating to the following matters come under section 147.— Mere right to fish [Kalikissen, 23 C 557; Ramroop, 35 Cr LJ 481]; right to use ferry [Hurbullubh, 3 Cal WN 49]; right to construct a bund [Sashibhusan, 33 Cal WN 1004]; cutting a ridge of a pyne [Inderdeo, 37 Cr LJ 378]; disputes as to easements [Kalikumar, 21 Cr LJ 683]; right to worship in a temple [Sinnaswami, AIR 1925 M 779].

A complaint that the opposite party was trying to take forcible possession of land and petrol pump, attached to

Page 24 of 45 [s 145] Procedure where dispute concerning land or water is likely to cause breach of peace.— land, falls within section 145 [Indian Oil Corp Ltd, (1984) Cr LJ (NOC) 49 : 1983 (2) Crimes 944 : 1983 All WC 581 : (1983) 9 All LR 725 (All)].

Property of educational institutions is not excluded from the scope of section 145 [Kripal Singh Jolly v State of Punjab, 1975 Cr LJ 1422 : (1975) 77 Punj LR 180 (P&H); Muktanand Chaturvedi v State, 1978 Cr LJ NOC 1 All : 1977 All Cr R 373]. The emphasis in section 145 is on dispute relating to land or water [Kauleshar v Binda Pandey, 1976 Cr LJ 649 : 1975 BLJR 575 : 1975 BBCJ 632 (Pat); Raja Lal Singh v Ram Prasad Singh, 1975 Cr LJ 1268 (Pat); Bujhawan Baitha v Jagi Sahai, 1977 Cr LJ (NOC) 162 (Pat). [s 145.37] “Crops or other produce of the land”.— “Crops” as standing crops attached to the land not when served and stored [Ramzan, 30 C 110; Deonandan Singh v Thakur Singh, AIR 1949 Pat 58 : (1948) 49 Cr LJ 657 : 1949 Pat WN 34; Chaurasi, 28 A 266; Situdas, AIR 1927 AIR 99; Rambhajan, 23 Cr LJ 650; Relumal, 29 Cr LJ 857; Rajindra, AIR 1938 P 527; Jalumuru Kamaraju v Kenguva Suryanarayana, ILR (1951) Cut 576 : 1953 Cr LJ 737 : AIR 1953 Ori 99 : 18 Cut LT 207; Narayandas v Balakrishan, 1980 Cr LJ (NOC) 148 (Kant)—Contra; Krishnaswami, 2 Weir, 109; Munir, 1938 AWR (CC) 134; Rahimuddin, 28 Cr LJ 989; Kimatrai, AIR 1945 Kant 72]. In some cases, cut crops only when still lying on the disputed land have been included [Gaya Prasad v Emperor, AIR 1948 All 94 : (1948) 49 Cr LJ 15 : 1947 All LJ 533 : 1947 All WR 292; Re A. Rampus v Alumuri Subba Reddi, AIR 1950 Mad 658 : 1950 (1) Mad LJ 213 : 63 Mad LW 409]. The section applies to dispute relating to division of produce or batai share of landlord [Araf, AIR 1936 SC 143]. Lac is not a produce of land or crop [Ali Md., 24 Cal WN 1039—Contra : Narsingdas, AIR 1934 N 112]. Produce includes molasses [Nihal, 5 Luck 462]. [s 145.38] “Rents or profits.”— Dispute as to right to collect rent is included [Pramatha, 11 C 413; Srimohan, 27 C 259; Ramaswami, 12 M 88; Bhaskari, 31 M 318; Haridas, 19 Cal WN 959 (produce rent) : 30 Ind. Cas. 142].

Profits are to arise from land or water as defined. They do not include right to collect tolls from market in proportion to the share of co-sharer [Akaloo, 36 C 968; UF Siem v Lebanon Kherkongor, AIR 1963 Ass 38 : 1963 (1) Cr LJ 565; Md. Fazil 5 Cr LJ 384], or to rights of offerings only by worshippers at a shrine [Ramsaran, 38 C 387; Guiram, 37 C 578; Sobhag, AIR 1927 N 33; Ghulam, AIR1920 P 383], or to perform puja [Surendra, 52 C 959], or to fees paid by pilgrims for performing sradh [Narayan, 3 Cr LJ 214], or to fees from sellers in a market [Ramlochan, 36 A 143]; or to fees in respect of boats transporting grain [Kunja, AIR 1939 Pat 206]. [s 145.39] Sub-section (3) : Service of order.— The preliminary order shall be served (1) on the person made parties and (2) one copy shall be affixed to a conspicuous place near the subject of dispute. The object of the latter is to give other persons who claim to be in possession an opportunity to come to be added as parties [see Krishna Kamini, 30 C 155 197, FB; Leela Singh v BP Singh, AIR 1946 Pat 389 : (1946) 47 Cr LJ 1013 : 227 IC 157; see “Parties Concerned, etc., ante,]. Service [chapter 6(A)]. Magistrate ought to be satisfied that proper service was made on the parties as omission or non-service vitiates all proceedings [Sripati, 8 Cal WN 76; Turab, AIR 1933 L 145; Ramsahai, 19 Cr LJ 71; Sheonandan, 19 Cr LJ 112; Sego, 28 Cr LJ 418; Maqumunnissa, 26 Cr LJ 1581; Pandurang, 24 M 527; Ahmed, 35 C 774]. Non-service on one person only nullifies the proceeding as against him and not all [Nandan, 26 Cr LJ 1287]. Non-service on two out of four brothers who are joint does not vitiate proceedings [Parmatma v State, AIR 1954 All 24 : 1953 Cr LJ 1892 : 1953 All LJ 601 : 1953 All WR 468].

The provision as to affixation in conspicuous place has been held to be directory and omission does not affect jurisdiction unless prejudice is caused [Sukhal, 33 C 68 78, FB; Basawan, 24 Cr LJ 345; Parbhu, AIR 1925 Oudh 152; Md. Sharif, 15 Cr LJ 279; Sajad, AIR 1917 Lah 35; Mg. Mauk, AIR 1925 R 270; Wazir Mahton v Badri Mohton, AIR 1950 Pat 372 : 1950 Cr LJ 1365; Sukhdev Yadav v Hari Shankarlal, 1976 Cr LJ 1204 FB 1976 All LJ 240 : 1976 All Cr C 131(All) (Cases discussed)]. Non-service, however, does not invalidate proceeding if the parties had knowledge of it [MgMauk, sup; Bidyadhar, 7 OC 334; Bhure, AIR 1924 N 171], or if no objection is raised [Chennapudayan, 30 M 548], or if parties appear and no prejudice is caused [Debi, 30 A 41; Nurbaksh, 18 Cr LJ 633; Bibi Soghra v King Emperor, AIR 1948 Pat 77 : (1947) 48 Cr LJ 440 : 229 IC 536; Gopichand v Mohd. Hanief, 2003 (2) Crimes 453 (455) (J&K)].

Page 25 of 45 [s 145] Procedure where dispute concerning land or water is likely to cause breach of peace.— Processes should be issued at state expenses [Phutania, 25 Cr LJ 1109]. On denial of service, process-server should be examined [Jogendra, 8 Cal WN 719].

Once a constitutional order is passed, the Magistrate is bound to take such measures as are necessary to maintain the public peace [Anand Hari Rahate v Anant Mahadeo Kotwal, (1991) Cr LJ 1256 : 1991 (2) Bom CR 550 : 1991 Mah LJ 165 : 1991 (2) All Cr R 247 Bom]. [s 145.40] Sub-section (4) : Mode of inquiry as to possession.— This is the inquiry stage. “Then” refers to the stage when parties have put in written statements and attended. Shall is mandatory. Once an order has been made under sub-section (1), enquiry must be made unless the proceeding is terminated under sub-section (5) [Md. Ali, AIR 1940 SC 33]. About the mode of enquiry nothing is said (as in section 116. (2) and section 138 (1) on security and nuisance case) as to whether the procedure should be that of summons or warrant case. In some cases, the procedure of summons case has been recommended [Harendra, 11 C 762; Ram Ch. 21 C 29; Moti, AIR 1923 P 53; see Khubi, AIR 1921 P 176; Biswanath, AIR 1921 P 308—Contra : The procedure of either summons or warrant case should not be followed as protracted investigation would in many instances defeat the very object, viz., prevention of breach of the peace [Tarapada, 32 C 1093; see Surjyakanta, 30 C 508; Harendra, 38 C 24; Arjun, 23 Cr LJ 275; Arju, 7 CLJ 369; Pandurang, 25 B 179, 184]. After the parties have filed written statements and adduced evidence in support of their claim of possession, the Magistrate must under section 145 (4) hear the parties, before passing the final order declaring the possession of a particular party. After hearing the arguments of one of the parties, the case was adjourned for arguments of the other party. On the adjourned date, the counsel of the party was present in court. But since the case was not taken up till 4 p.m., the counsel left for home. The Magistrate, without granting an adjournment prayed for, by the junior counsel of the other party, passed the final order without hearing the arguments of the other party. The final order was held to be invalid [Sarju Mahto v Bansraj Mahto, (1988) Cr LJ, NOC 12 : 1987 Pat LJR 955 : 1987 East Cr C 732 : 1987 BBCJ (HC) 581 (Pat)].

Where the Magistrate without giving opportunity to the parties to lead evidence finds the opposite party in possession and drops the proceedings, the order dropping the proceedings is liable to be set aside [Bishwanath Shah v State of Jharkhand, 2004 Cr LJ (NOC) 72 : 2003 (3) BLJR 2062 : 2004 AIR Jhar HCR 499].

The reasonable view would be that the object being the prevention of a breach of the peace by giving an expeditious decision on the question of actual possession, the inquiry is intended to be short and summary. So no set procedure has been prescribed leaving the matter to the discretion of the Magistrate, which must of course be exercised judicially and not arbitrarily. At the same time, the sub-section makes it clear that the court shall read the written statements, receive evidence and hear the parties. The proceedings are not intended to be elaborate and the Magistrate is required to come to a decision on possession if possible. It is further provided that if the evidence is such that he is unable to come to a decision, he can attach the subject of dispute until a competent court decides the rights of the parties under section 146 (see post,).

The Magistrate must not only receive the evidence produced by the parties but also receive further evidence if necessary. Proceeding cannot be disposed of on affidavits only. Reasonable opportunity should be given to produce documents and witnesses in proof of possession. Magistrate is also under duty to summon witnesses required for the parties [Indira v Dr. Vasantha, 1991 Cr LJ 1798 : 1990 TNLJ (Cri) 66 (Mad)].

A discretion is given under section 145(9) to the Magistrate to issue summons to any witness or to produce any document on the application of either party at any stage of the proceedings. Section 145(4) comes into operation immediately after the publication of the preliminary order as required under section 145(1) and a mandate is cast upon the Magistrate to receive all such evidence as may be produced by them. This phraseology connotes a meaning that sufficient and adequate opportunities have to be provided to either of the parties to prove their respective claims in respect of the subject matter of dispute [NA Ansary v Jackiriya, (1991) Cr LJ 476 : 1990 Mad LW (Cri) 93 : 1990 Mad LJ (Cri) 337 (Mad)]. [s 145.41] “Receive all such evidence”.— Where the witnesses of the petitioner, though present on the date fixed were not examined, nor hearing was

Page 26 of 45 [s 145] Procedure where dispute concerning land or water is likely to cause breach of peace.— given to petitioner, it was held that the order passed in favour of the opposite party was found not sustainable [Moti Ram v Laxman Narayan Jaiswal, 2008 Cr LJ (NOC) 52 : 2007 (3) AIR Jhar R 324 (Jhar) : 2007 (3) JLJR 26]. [s 145.42] Evidence and inspection.— It was held in many cases that processes for witnesses should not be unreasonably refused [Gaizaddi, 18 Cal WN 94; Surjyakanta, 30 C 508; RamCh, 21 C 29; Harendra, 1 C 762] and sub-section (9) gives that power to be exercised judicially.

The inquiry is intended to be short and summary and it is incumbent to finish it quickly [My Nyain, 30 Cr LJ 344; Ganpat, 29 Cr LJ 676; Moti, 24 Cr LJ 595] by avoiding unnecessary adjournments [Haripada, 17 Cal WN 144 : 18 Ind. Cas. 264].

A subordinate Magistrate may be deputed to enquire and report (section 148). But the enquiry under subsection (4) must be made by the Magistrate who made the preliminary order [Hamidul, 18 Cr LJ 145]. If all the parties or the informant are absent, the case cannot be filed or struck out; it ought to be terminated in one of the ways contemplated in law. The Magistrate will therefore take evidence and pass final order [see Manik, 6 Cal WN 923; Bhavrao Ganpatrao v Bhimarao Tukaramji, AIR 1958 Bom 450 : 1958 Cr LJ 1383 : 60 Bom LR 80; Babu Lal v The State, AIR 1950 All 631]. A case cannot be dismissed for default merely because the complainant is absent [Raquma, AIR 1940 Oudh 22 : (1939) 9 AWR 377; Rajdeo Singh v Emperor, AIR 1948 All 425 : (1948) 49 Cr LJ 714 : 1948 All WR 216; Tahawar, AIR 1953 All 440; see however Ram Chandra Shau v Madhab Nayek, AIR 1953 Cal 484 : 1953 Cr LJ 1153]. If one of the parties is absent, court should come to a decision one way or the other [Kamini Kumar Deb v Bhim Kanta Keot, AIR 1953 Ass 198 : 1953 Cr LJ 1589 : ILR (1952) 4 Ass 330]. The only mode of cancellation of the order under sub-section (1) is in sub-section (5) [Rajdeo, sup]. If one or other of the parties is absent, the court proceeds ex parte against the absent party, but must take evidence before passing the final order [Ram Kr, 6 Cal WN 925; Chinnapareddi, AIR 1929 Mad 847 : 120 Ind. Cas. 895 : 1930 31 LW 104 : 1929 MWN 708]. An ex parte order on the written statement only without taking evidence is bad [Gobind, 8 Cal WN 642; Nojem, 12 Cal WN 771].

The words “the parties” have been substituted for “such parties” in the previous Code. The words such parties were held to refer to the parties concerned in such dispute in sub-section (1) and the enquiry was to be restricted as parties [Krishna Kamini, 30 C 155, 198 FB]. Now the parties who are added after preliminary order may also take part in the enquiry.

“Peruse” means to go through critically, to read thoroughly or carefully (OED).

“Hear the parties” in sub-section (4) means hear their evidence and the arguments of their lawyers, if any [Ghulam, 5 PLJ 246 : 21 Cr LJ 572], Hearing of parties does not necessarily mean their examination. It merely amounts to granting of audience of hearing arguments [Md. Khan, AIR 1945 Nag 127; Dodda Revanna v T.V Narayana Murthy, AIR 1957 Mys 43 : 1957 Cr LJ 467 : 1957 (1) Mad LJ (Cri) 296 : ILR (1956) Mys 369; Keshab Acharya v Somehath Behera, AIR 1958 Ori 79 : 1958 Cr LJ 650 : 24 Cut LT 97 : ILR (1957) Cut 676; Bhagwat Singh v State, AIR 1959 All 763 : 1959 Cr LJ 1384 : 1959 All LJ 878 : 1959 All WR 674; S. Johd Singh v Mahant Bhagambar Dass, AIR 1961 Punj 187 : 1961 (1) Cr LJ 708 : 63 Punj LR 63]. The Magistrate cannot delegate to another Magistrate the duty of taking evidence [Venkatopathi, AIR 1932 Mad 368].

The words “receive all such evidence as may be produced by them” mean that the Magistrate is bound to receive all evidence produced [Dyamappa, 17 Bom LR 382; Tirumalraju, 29 M 561] and an order passed by refusing to take evidence is invalid [Lowsen, 8 Cal WN 719; Hatemali, AIR 1924 C 544; Palani, 43 Mad LJ 716; Basawan, 24 Cr LJ 435; Tarachand, 18 Cr LJ 36; Sakhaya, 21 Cal WN 928; Bande Ali, AIR 1925 C 263]. So also an order based merely on the magistrate’s own knowledge [Raza Husain, 23 Cr LJ 684; Subhan, AIR 1939 O 15], or on a local enquiry or inspection [Lalbehari, 10 Cal WN 181; Ramsundar, AIR 1922 P 294; Gagan, 25 Cal WN 1007; Sahadat, 46 C 1056; Khubi, 22 Cr LJ 481] or on the report of tehsildar [Sardha, 13 Cr LJ 777; Priziruddin, 14 Cr LJ 302], or on the written statement only [Kalha, 34 C 840; Nojem, 12 Cal WN 771; Gobind, 8

Page 27 of 45 [s 145] Procedure where dispute concerning land or water is likely to cause breach of peace.— Cal WN 642] without taking any evidence. As a speedy decision is essential, the Magistrate should not allow the proceedings to be vexatiously prolonged [Abhayewari, 16 C 513, 522; Nathu, 24 A 315].

While exercising powers, under section 145 of the Code, with regard to a dispute concerning an immovable property, the SDM can direct a local inspection. However, the proceedings, under section 145 of the Code are quasi-judicial and quasi-administrative in nature. Moreover, as contemplated under sub-section (1) of section 148 of the Code, the Sub Divisional Magistrate is required to depute any Magistrate subordinate to him to make such an inquiry, and the report of Magistrate so deputed may be read as evidence by virtue of sub-section (2) thereof. In other words, although, subordinate Magistrate may be deputed, under section 148 of the Code, to make a local inspection and report yet, the provision does not give power to the Magistrate in whose court the proceedings are pending to inspect the spot in dispute himself (Deo Prasad Saha v Ravi Ravidas, 1990 Cr LJ 823 referred to) [Prem Narayan B Tiwari v Sitaram R Soni, 2008 Cr LJ 2906 (2907) MP].

Though it is left to the parties to adduce evidence, yet reasonable opportunities have to be given to them to produce their witnesses and documents, if any [Abhimanyu Kumar Roy v Nanak Ram Agarwalla, 1979 Cr LJ 1103 : 1979 (1) Cal HN 255(Cal)]. Police report cannot be considered as evidence [Adhikanda Behera v Dhaneswar Swain, 1978 Cr LJ 265 : 1977 Cut LR (Cri) 130 (Ori)]. Magistrate has to decide not on statement of witnesses at the time of local inspection by him but on statement of witnesses examined in court upon oath [Gangamma, (1977) 2 Ker LT 101]. Parties are entitled to copy memo of local inspection if made by Magistrate and also to produce evidence in rebuttal [Gopal Upadhaya v Vishwanath Pathak, 1977 Cr LJ 1762 (Pat)].

Mode of taking evidence when it is necessary (section 274). It is unusual to direct the second party to begin [Ram Wd, 21 Cr LJ 136]. No absolute standard of proof can be set up. If a Magistrate thinks that evidence for a party, though weak is preferable, it is his duty to decide in his favour [Nandkishore, 41 Cr LJ 101]. A decision cannot be said to be illegal or incorrect because of failure to record reasons—Distinction between decision under sub-section (4) and order in Form 25 of Sch 1 [Desai Shivabhai Chhotabhai v Havjibhai Motibhai, AIR 1965 Guj 158 : 1965 (2) Cr LJ 91 : (1965) 6 Guj LR 14].

As it is a quasi-civil proceeding, order can be passed on the admission of a party or his lawyer [Haro Mohan, 7 Cal WN 351 (dissented in Mahomed, 30 C 918); Gangadharam, 12 Cr LJ 47; see Amriteswari, 7 Cal WN 558]; but not on alleged statements to the police [Raju, AIR 1941 M 751]. It has been recently held that order in Code of Criminal Procedure, 1973 1973 is administrative in nature and not judicial or quasi judicial [Gulam Abbas v State of UP, AIR 1981 SC 2198 : 1981 Cr LJ 1835 : (1982) 1 SCC 71 (SC)]. An order under section 145 (4) must give reasons for it. Merely filling up Form 25, Sch 1 is totally insufficient. It cannot take the place of judgment [Bansi v Hari Singh, AIR 1956 All 297 : 1956 Cr LJ 561 : 1956 All LJ 735]. [s 145.43] One proceeding or different proceedings.— If the dispute is one, the fact that it relates to several distinct plots does not necessitate an independent proceeding in respect of each [Krishna Kamini, 30 C 155 FB; Manick 6 Cal WN 206]. Where a dispute embraces different items of property, there may be one proceeding, provided the disputants are the same for each item [Velu Malayarayan, 22 Cr LJ 90]. Single proceeding is not without jurisdiction because some of the parties are concerned with a portion of the land [Sajani, AIR 1924 C 539 : 24 Cr LJ 235].

Where a large number of plots claimed both by the landlord and different tenants are embraced in one proceeding, it is essential that the Magistrate should apply his mind to each individual holding and must come to a conclusion in respect of each holding separately so that no prejudice is caused [Golab, AIR 1938 P 511; Leela Singh v BP Singh, AIR 1946 Pat 389 : 227 IC 157 : (1946) 47 Cr LJ 1013; Raja Gope, AIR 1939 P 353; Ramkrishun, AIR 1937 P 413]. In a dispute relating to a large tract where various claims are set up by tenants under the zamindar and jotedars under the zamindar, the Magistrate should distinctly specify which persons were entitled against which and to which portion of the land in dispute [Kuthuhul, 15 C 31].

Independent disputes relating to distinct parcels of land should be dealt with in separate proceedings [Krishna Kamani, 30 C 155, FB; Tirumalraj, 29 M 561; Radhashyam Patri v Ranka Rangadhar Panda, AIR 1962 Ori 161 : 1962 (2) Cr LJ 391 : (1962) 4 Ori JD 77].

Page 28 of 45 [s 145] Procedure where dispute concerning land or water is likely to cause breach of peace.— [s 145.44] Effect of force of Civil Court decree or order for possession.— There has been a mass of decisions on this subject but they are not all agreed. The confusion that existed has been dispelled by some later authoritative judicial pronouncements. Decrees of Civil Courts or orders relating to possession are not infrequently relied upon by one party or others in support of possession. They have their uses but up to a certain point, as the Magistrate is concerned only with present actual possessionand not who has or had the title or right to possession by virtue of the decree or order. It has been held in many cases that the duty of the Criminal Court is to maintain the decree or orders of Civil Courts determining the rights of parties (see generally Daulat, 26 C 625 and the cases cited ante); but as the sole question before the Magistrate is who was in actual (even though wrongful) possession at the date of the preliminary order, the vital question is whether the possession given to a party by the Civil Court continued or he was deprived of it at any subsequent time by some other person. In some of the earlier decisions the force of the words “actual possession” in the section was not put in the forefront, but more stress was laid on the duty of the Criminal Courts to maintain the rights declared by the Civil Court. The true position therefore is that decrees or orders of Civil Courts relating to possession ought ordinarily to be respected and given effect to by the Magistrate unless and until there is something shown which might induce him to hold that subsequent to the delivery of possession something has happened which had the effect of dispossessing the party to whom possession was delivered [Rambarai, AIR 1923 P 427; Kedar, 1923 P 364; Manindra, 22 Cr LJ 238; Chandreshwar, AIR 1937 Pat 557 : 171 Ind. Cas. 593; Zafar, AIR 1940 Pat 135]. Thus, where a party is given symbolical possession of some land by the Civil Court and sometime after proceedings are instituted under section 145, the Magistrate cannot pass an order in favour of that person on such possession, but it is incumbent on him to go into the question of actual possession between the two dates [Hazari, 22 Cal WN 479; Ambar Ali, 32 Cal WN 275; Shahbaj, 49 C 177]. In Agni Kumar, 32 Cal WN 1173, 1187, FB Rankin, CJ, said:—

To say that when a Magistrate twelve months after a Civil Court peon has delivered possession, finds that the judgment-debtor is back in possession of the land, he is interrupting or interfering with the execution proceedings of the Civil Court if he acts under section 145, is a violent abuse of language. On the other hand, it is true that if on a given date the plaintiff has been put into possession by the Civil Court, however in efficiently or irregularly, then on that date the plaintiff got possession as against the defendants. The defendant’s actual possession has been broken as a matter of fact even if only for the moment. This is true of symbolical possession improperly so called as of any other possession though what happened at the time of delivery of possession may well be important of the question whether the plaintiff continued in possession very long or was ousted in the following week.

In the same case, Rankin, CJ., said that the duty of the Magistrate under section 145 is to maintain possession (i.e., actual possession)—not to “maintain the decree” (ibid, p 1186) and so notwithstanding a Civil Court decree or delivery of possession in a party’s favour, if as a matter of fact the Magistrate finds that the actual possession is with another party, he must declare possession in that party’s favour [see SM Yakub v TN Basu, AIR 1949 Pat 146 : (1949) 50 Cr LJ 299 : ILR 27 Pat 1027; Rajnandan, AIR 1932 P 185; Rajendra, AIR 1939 P 151 : 40 Cr LJ 339; Agni Kumar, sup; Ram Kripal, AIR 1941 Pat 516; Zafar, 41 Cr LJ 171; Hosnaki v State, AIR 1956 All 81 : 1956 Cr LJ 168 : 1955 All WR 654]. Delivery of possession by Civil Court raises a presumption, section 145 was brought to order by the above cited Full Bench decision in Agni Kumar, 32 Cal WN 1173ante. For a clear comprehension of the matter in all its bearings, a study of the judgment of Rankin, CJ., is recommended. The Magistrate must respect decisions and directions of competent Civil Court regarding possession or delivery of possession in favour of particular party in earlier litigation. If there be any apprehension of breach of peace, the Magistrate should have recourse to proceedings under section 107 or section 144 instead of section 145 [Bhima Nayak v Panjashaw Durgah, 1979 Cr LJ 1200 : (1979) 48 Cut LT 70 : ILR (1979) 1 Cut 402 (Ori)].

In some cases, a distinction was drawn between recent decrees and old decrees and reliance was placed on the fact that the decree or delivery of possession thereunder has been recent or “within a time not remote” [Daulat, 26 C 625, 628; Bandhoo Singh v Govind Lall, AIR 1954 Pat 310 : 1954 Cr LJ 1023 : 1954 BLJR 29; Sheo Narayan Singh v Bharath Singh, AIR 1954 Pat 182 : 1954 Cr LJ 500 : ILR 32 Pat 227; Tekchand v Sabir Husain, AIR 1955 Hyd 65 : 1955 Cr LJ 480 : ILR (1955) Hyd 1; Imambu v Hussenbi, AIR 1960 Mys 203 : 1960 Cr LJ 1112], or eight days [Gulraj, 32 C 796] or “within a short time, i.e., within three months” [Kunja, 29 C 208,

Page 29 of 45 [s 145] Procedure where dispute concerning land or water is likely to cause breach of peace.— 210; see also Rambarai, AIR 1923 Pat 437 : 75 Ind. Cas. 363; Pratap, 24 Cr LJ 279; Durganand, 25 Cr LJ 88; Jang Bahadur Singh v Nazimul Haque, AIR 1947 Pat 245 : (1946) 47 Cr LJ 976 : 226 IC 516; Lowsen, 8 Cal WN 719; Kuloda, 33 C 33] and that accordingly it is the duty of the Magistrate to maintain the rights of parties declared by a Civil Court within a time not too remote from the start of proceedings under section 145 [Mashi Uddin v State, AIR 1953 All 383 : 1953 Cr LJ 832 : 1952 All LJ 758; Makhan, AIR 1942 All 150; VE. Argles v Chhail Behari, AIR 1949 All 230 : (1949) 50 Cr LJ 345; Havildar Venkatachallam v Sappar Palayan, AIR 1953 Mad 594 : 1953 Cr LJ 1119 : 1953 (1) Mad LJ 336; Bandhoo Singh v Govind Lall, AIR 1954 Pat 310 : 1954 Cr LJ 1023 : 1954 BLJR 29; Baishnab Parida v Subal Bhoi, 1978 Cr LJ 1312 : (1978) 45 Cut LT 297 : 1978 Cut LR (Cri) 5 (Ori); P Madhava Rao v K Bhagvandass, 1981 Cr LJ 1673 : 1981 (2) Andh LT 120 : 1981 (2) APLJ 116 (AP)] and the successful party therein should be given all protection to reap the fruits of the litigation by proceedings under section 107 against the unsuccessful party [Baishnab, sup]. The effect of symbolical possession by Civil Court is that the other party’s actual possession is broken even if only for a moment [Agni Kumar, 32 Cal WN 1173, FB; Meher Ali, 37 Cal WN 652].

While recent decree or delivery of possession may raise a presumption which is rebuttable, it is not in any way conclusive that the Magistrate will on the whole evidence decide who is in actual possession notwithstanding the decree or delivery of possession.

Of less use would be decrees which are merely declaratory or decrees under which possession has not been taken by execution. At the most, they show only the title of a party and the right to possession. But under section 145, the Magistrate has to enquire into possession which may be quite contrary to title supported by a decree [Anya, 28 Cr LJ 578]. Admissibility of previous judgment and its use [Hosnaki v State, AIR 1956 All 81 : 1956 Cr LJ 168 : 1955 All WR 654]. [s 145.45] Question of title.— As section 145 is concerned only with the question of actual possession, question of title should not be decided or allowed to be agitated. Proceedings may be much shortened in many cases and rendered less difficult only if questions of title are kept at arm’s length. It has been repeatedly held that questions of title or the right to possession are beyond the scope of section 145 [Prayag, 32 C 602; Ramdayal, 6 CLJ 182; Debendra, 37 Cal WN 849, 851; Indian Iron, 32 CLJ 54 : 22 Cr LJ 99; Venkatapathi, 33 Cr LJ 536; Abdul Latif, AIR 1936 N 3; Raghubir Singh v Gram Samaj Kotra, AIR 1964 All 394 : 1964 (2) Cr LJ 261 : 1963 All WR 715; Badri Narayan Singh v State of Jharkhand, 2004 Cr LJ (NOC) 320 (Jhar) : 2003 (3) JCR 718 : 2004 AIR Jhar HCR 2285]. They are irrelevant except in so far as they may have a bearing on the fact of actual possession [SM Yakub v TN Basu, AIR 1949 Pat 146, 162, 164 : (1949) 50 Cr LJ 299 : ILR 27 Pat 1027 and cases cited ante]. Evidence as to title can be considered only when (i) the property admits of no actual possession and (ii) when evidence is equally balanced [Gyan Debi v Rex, AIR 1949 All 144 : (1949) Cr LJ 209 : 1948 All WR 180; Depu Kachari v Padma Kanta Barua, AIR 1952 Ass : 1952 Cr LJ 1693 : ILR (1952) 4 Ass 323].

The Magistrate, while passing an order, need not consider each and every document filed by the parties in support of title and possession. No prejudice is caused to a party, as right as to title and possession are not finally decided in these proceedings [Mahendra Kaur v RKL Das, 1984 Cr LJ (NOC) 151 (Pat)]. [s 145.46] Previous decisions of Criminal Courts as to possession.— A previous decision of a Criminal Court as to possession is not conclusive. It is a piece of possession quantum valebat—[Adul Shakur, 26 Cr LJ 870]. It is open to a Magistrate not to accept the decision as to possession in a previous case of rioting [Bhulan, 25 Cr LJ 951]. Possession given in a former proceeding under section 145 would be conclusive in a subsequent proceeding under the section against the same parties unless it is found that possession has changed since then [Jagat, AIR 1926 L 479; Elimuddin, 38 Cr LJ 79]. A declaration in favour of the first party on the basis of a previous order under section 145, in which the second party was no party, is not proper [Nepal, 44 Cal WN 928]. [s 145.47] “If Possible” decide who was in possession.— The Magistrate should make every attempt to decide, and if he can and does come to a decision as to who is in possession, he will pass final order under sub-section (6) declaring possession in that party’s favour. If he cannot come to a conclusion, the proper and wise course would be to attach property under section 146 [Reid, 14 C 361; Agni Kumar, 32 Cal WN 1173, 1185, FB; Suratia v Jailal Thakur, AIR 1952 Pat 233 : 1952 Cr LJ 703; Katras Jherria, etc., 22 C 297; see notes to section 146 post, or if the property is already under attachment it

Page 30 of 45 [s 145] Procedure where dispute concerning land or water is likely to cause breach of peace.— may be continued [Jan Md., AIR 1928 N 325]. If evidence on both sides is equally unreliable, section 146 should be applied [Akshay, 20 Cal WN 1000]. There is no bar for the Magistrate to hold that a part of the subject matter of dispute was in actual physical possession of one party and the other part was in such possession of the other party [Khetramohan Sarkar v Paran Chandra Mandal, 1978 Cr LJ 936 (Gau)]. If without deciding who was in actual possession, he merely declares one party to be in possession, it is illegal [Kochai, 35 C 795; Peria, 23 Cr LJ 670; Sukulathi, 1922 MWN 689 : AIR 1923 M 24]. A finding that a party was in possession renders a further finding that he was forcibly dispossessed unnecessary [Gobardhan, 44 Cal WN 427]. A person who is not a “party” cannot be declared in possession [Subba, 7 M 460]. When the finding is that parties had joint possession, section 145 does not apply (see ante : “Joint Possession”).

The question of possession is to be determined with reference to the date of the initial order under sub-section (1) or in case of forcible dispossession, a date within two months next preceding the date of receipt of the report of police officer or other information leading to the institution of the proceeding as has been made clear by proviso to sub-section (4). Where by reason of an order under section 141 no evidence of possession of either party could be given up to the date of the proceeding under section 145, the Magistrate should ascertain the possession immediately before the order under section 144 [Jayanti, 4 Cal WN 562; see Saddique, AIR 1930 P 556].

After the changes made in 1973 Code the Magistrate or the Court of session has no power or authority to refer the dispute regarding possession to a Civil Court for a finding [C. Vijayamma v Padmanabhan Vasudevan, 1980 Cr LJ 119 : 1979 Ker LT 78 : 1979 Mad LJ (Cri) 386 (Ker)] [s 145.48] “Possession.”— Sub-section (4) refers to actual possession in sub-section (1). It has already been discussed (ante; “Guiding principles for application of section 145”) that actual or de facto possession is the only subject of enquiry and not right to possession or title. [s 145.49] Compromise.— Where the parties file a compromise (e.g., land is to remain in possession of both) it means that the dispute no longer exists and the order should be cancelled under sub-section (5). But there can be no declaration under sub-section (6) in terms of compromise [Sadhu, 15 Cal WN 568; Gangadhar, AIR 1929 N 285]. Compromise as to possession does not transfer title or operate as estoppel [Gopi, AIR 1923 A 77]. When first and second parties file a compromise, the Magistrate cannot make final order in favour of the added third party as there was nothing to show likelihood of breach of the peace between the first two parties [Rasik, 25 Cal WN 214].

Where property dispute is settled by compromise between parties, continuance of process under section 145 of Code of Criminal Procedure, 1973 would be abuse of process of the court and hence liable to be quashed [Kunjbihari v Balram, 2007 (1) SCC (Cri) 376 : (2006) 11 SCC 66]. [s 145.50] Arbitration.— Is not contemplated in the section as the Magistrate is required to decide for himself who was in possession [Ahmodullah, AIR 1941 All 42 : (1940) 10 AWR 561; Banwari, 32 C 552; Jamuna, 25 Cal WN 719; Hamidul, 18 Cr LJ 145; Hari, Pd., 18 Cr LJ 688; Kali Kanta Barman v Rainath Barman, AIR 1952 Ass 118 : 1952 Cr LJ 1166]. It has however been held that if the parties refer to an arbitrator, the court when passing final order should consider the finding in the award as to possession [Taramoni, 7 Cal WN 461; Haladhar, 19 Cr LJ 299]. When all parties go to arbitration, no one can resile from the award [Janki, 6 Cal WN cix]. The Patna view is that there is nothing to forbid arbitration if the parties agree to it and to pass an order of cancellation under subsection (5) after award, if there is no likelihood of breach of the peace. If this is not done or if any one desires determination according to law, the Magistrate’s duty is to take evidence and decide [Sundar, AIR 1942 P 289 : 43 Cr LJ 172; see Uttim, 3 P 288 : AIR 1924 P 589]. Award may be taken as evidence for passing order under sub-section (5) but order under sub-section (6) cannot possibly be based on it. There can be no arbitration for deciding further possession [Uttim, AIR 1924 Pat 589]. [s 145.51] Date of order.— Date of preliminary order regarding apprehension of breach of peace is of paramount importance. [Bhupal Singh v Special Judge (EC Act) Banda, 1997 Cr LJ 280 : 1996 All LJ 1930 : (1996) 33 All Cr C 734 : 1966 (20) All Cr R 663 (All)].

Page 31 of 45 [s 145] Procedure where dispute concerning land or water is likely to cause breach of peace.— [s 145.52] Proviso to Sub-section (4).— As far as making an application for implementation of the order passed under section 145(4) of the Code is concerned, since no period of limitation is prescribed, the same ought to have been filed within a period of three years from the date of the order [Shakuntala Devi v Chamru Mahto, 2009 Cr LJ 1770 (SC) : AIR 2009 SC 2075 : (2009) 3 SCC 310]. A Magistrate, upon drawing of the proceeding under section 145 of Code of Criminal Procedure, 1973, has to determine, if possible, in exercise of his power under section 145(4) of Code of Criminal Procedure, 1973 as to who was in possession of the disputed land on the date of drawing of the proceeding. Conversely, the Magistrate cannot draw a proceeding under section 145 of Code of Criminal Procedure, 1973, if the materials on record clearly indicate that the person, who is sought to be evicted by invoking the Magistrate’s jurisdiction under section 145 of Code of Criminal Procedure, 1973 had been in possession of the disputed land for a period longer than two months before the date when either the police report was made or the information, which could enable the Magistrate to draw the proceeding, was given [Kanak Deka v State of Assam, 2012 (3) GLD 51 (Gau)]. Section 145(4) of Code of Criminal Procedure, 1973 contemplates both oral and documentary evidence, reasonable opportunity has to be afforded to the parties to produce documents and witnesses and that the Magistrate is upon a duty to summon such witnesses as may be required by either party [A Loganathan v State, 2011 (2) RCR (Criminal) 133 (Mad)].

While passing an order to drop the proceedings under section 145 of Code of Criminal Procedure, 1973, the Magistrate created an anomaly through the incidental nature of the order directing the first party to release the property in favour of the second party and to not interfere in the peaceful possession of the second party. The order was passed without giving a finding in judicial capacity and following the due process under section 145(4) of the Code. In the given circumstances, this order of the Magistrate was held to be a pure administrative order [Surya Narain v State of UP, 2014 (105) ALR 69 : 2014 (86) ALLCC 819].

It meets to some extent the difficulty arising if the enquiry as to actual possession is to be confined to the date of the initial order [see Katras Theria, 6 C 22 C 297] Under it the party “forcibly and wrongfully” dispossessed within two months next before the date on which the report of a police officer or other information was received by the Magistrate, or after that date and before the date of his order under sub-section (1) may be treated as the party who was in possession at that date [see Mehr Ali, 37 Cal WN 652]. A month means a month according to English calendar which is equivalent to 30 days. For reckoning the starting point of the period, the day from which such period is to be reckoned shall be excluded [Bikrama Sah v Bishwanath Sah, 1975 Cr LJ 1691 (Pat) : 1975 PLJR 520]. The proviso is permissive—not mandatory and the Magistrate is not bound to treat such a party as if he was in possession [Sunderlal, AIR 1936 Nag 271; Janama Bhoi v Draupadi Bhojani, AIR 1952 Ori 26 : 17 Cut LT 270 : 1952 Cr LJ 148; Md. Nasir, AIR 1939 Oudh 31 : AIR 1938 Oudh 31; Pachayappa, AIR 1943 Mad 402 : 1943 56 LW 220 : (1943) 1 Mad LJ 259 : 1943 MWN 178]. The provision is discretionary. Magistrate may refuse to take notice of dispossession when the rightful owner has dispossessed the trespassers within two months of preliminary order [Balram Singh v Budho Devi, AIR 1965 Pat 261 : 1965 (2) Cr LJ 114 : 1964 BLJR 880].

In the old Code, the expression being “within two months next before the date of such order” it was held by many High Courts that the period of two months was to be counted backwards from the date of the preliminary order. It could not be extended. In other words, if for some reason, e.g. for want of time or for having sent the case to the police for enquiry, the Magistrate failed to pass the preliminary order within two months of dispossession, the person forcibly dispossessed could not get benefit of the proviso [Athiappa Gaunder v SSA Athiappa Pandaram, AIR 1967 Mad 445, FB : 1967 Cr LJ 1650 : 1967 (1) Mad LJ 392 : 1967 Mad LW (Cri) 20; Ganga Bux Singh v Sukhdin, AIR 1959 All 141, FB : 1959 Cr LJ 261 : 1959 All LJ 116 : 1959 All WR 129; Sunderlal, sup; Sita Ram v The Crown, AIR 1949 E Punj 398 : (1950) 51 Cr LJ 3 : 51 Punj LR 301; Md. Beg, AIR 1941 C 515; Ghulam, AIR 1933 L 143; Tolan Kalita v Bhuban Chandra, AIR 1951 Ass 161 : 1951 Cr LJ 1449; Ayyan Padmanabhan v Padmanabhan Nanu, AIR 1955 T-C 262 : 1955 Cr LJ 1531 : 1955 Ker LT 445; Shah Md. Yunus v Bajrang Mahto, AIR 1962 Pat 352 : 1962 (2) Cr LJ 396 : 1962 BLJR 396; Kamapati Venkat Ramiah v Challapalli Sitharamiah, AIR 1961 AP 208 : 1961 (1) Cr LJ 612 : 1960 Andh LT 952 : 1960 Mad LJ (Cri) 732; State v Ramjivan Kaluram, AIR 1962 Bom 8 : 1961 (2) Cr LJ 724 : 63 Bom LR 750]. To remove the hardship, the words “within two months next before the.....under sub-section (1)” have been substituted. Hence the period of two months is now to be counted backwards from the date of receipt of the report of the police officer or other information instead of the date of making the order under sub-section (1) on the basis of that report or information.

Page 32 of 45 [s 145] Procedure where dispute concerning land or water is likely to cause breach of peace.—

When proceeding under section 144 is a forerunner of proceeding under section 145, the two months should be counted backwards from the date of the order under section 144 [Gobardhan, AIR 1942 A 489]. When during long attachment another proceeding is made under section 145, it is not a new proceeding and benefit of the two months may be available [Bibi Soghra v King Emperor, AIR 1948 Pat 77 : (1947) 48 Cr LJ 440 : 229 IC 536 (Pat)].

When petitioner is not in possession of disputed property on date of passing of preliminary order, then proceedings under section 145(4) are not sustainable and proviso to section 145(4) cannot be invoked. [Lophinoris Shangpling v Hamboy Shullai, 2001 AIR SCW 2305 : 2001 Cr LJ 2943 (SC); See also Shamim Alam v Sajid Hussain, (2005) 10 SCC 551].

Where there was no report of a police officer or other information received by the Magistrate and the petitioner’s statement showed that the party lost possession much before the period mentioned in the proviso to section 145(4), it was held that no order for restoration of possession could be passed in favour of the petitioner under section 145 of Code of Criminal Procedure, 1973 [R.C. Patuck v Fatima, AIR 1997 SC 2320 : 1997 Cr LJ 2756 : (1997) 5 SCC 334 : 1997 SCC (Cri) 679 : 1997 (2) Crimes 102 (SC)].

In the present case, the applicant co-owner admitted to have been dispossessed from land in dispute. A partition suit between the parties was also pending in Civil Court. The applicant could not establish as to from which date he was dispossessed whether within two months time before filing application as prescribed in proviso to section 145(4). The proceedings under section 145 were held liable to quashed, as the petitioner was not entitled to any relief under section 145 of Code of Criminal Procedure, 1973 [Fazlur Rahman v Md. Raizuddin, 2004 Cr LJ 3670 : 2004 (2) Gau LR 335 : 2004 (4) Rec Cr R 828 (Gau)]. [s 145.53] Forcibly and wrongfully dispossessed.— By “forcible” is not meant actual force or violence; show of criminal force is enough [Sitanath, 25 Cal WN 601]. “Wrongful” does not involve that the dispossessor had no legal right to possession. The distinction is between forcible entries which are rightful and forcible entries which are wrongful, and this depends on whether the person entering is entitled to use force and not merely on whether he has a legal right to possession. The words “forcibly and wrongfully” have the same meaning as forcible entry without due warrant of law under the English statute. “Forcibly and wrongfully dispossessed” means dispossessed otherwise than in due course of law and would include the case of a rightful owner entitled to possession taking possession otherwise than peacefully [RH Bhutani v Mani J Desai, AIR 1968 SC 1444 : 1969 CerLJ 13 (SC); Bai Jiba, AIR 1926 B 91; Purshottam Ramnani v Government of NCT of Delhi, 2008 Cr LJ 3266 (Del)]. Lessee ousted by lesser under order of Magistrate procured in wrong information is “forcible” eviction [Amritlal N Shah v Nageshwara Rao, AIR 1947 Mad 133 : (1947) 48 Cr LJ 435 : 1946 (2) Mad LJ 349 : 59 Mad LW 645 : 1946 Mad WN 692]. But mere ouster of people having no title by the rightful owner without using physical force is not forcible possession [Collr, 28 Cr LJ (C) 210]. Digging a tank upon the disputed land with the sanction of the municipality to the exclusion of the party who was in possession is “forcible” dispossession though possibly not within the meaning of “criminal force” in the Indian Penal Code [Manmatha, 20 Cal WN 978]. Dispossession should be forcible as well as wrongful [Low & Co, 3 P 809; Ata Husain, 28 Cr LJ 437].

Where in a dispute between the parties with respect to possession of flat, the respondent had broken the lock of the flat, it was held that the proceeding under section 145 would be proper and the proceedings initiated under sections 107/151, Code of Criminal Procedure, 1973 could not be initiated [Purshottam Ramnani v Government of NCT of Delhi, 2008 Cr LJ 3266 (3269, 3270) (Del) : 2008 (2) Rec Cri R 831 : 2008 (67) All Ind Cas 344]. [s 145.54] Forcible eviction of lawful tenant.— A civil suit instituted by the owner for evicting the tenant from the shop continued for a long period. The owner got the shop evicted in a criminal proceeding with the collusion of the police and the Sub Divisional Magistrate. It was held to be fit case for putting the tenant back into the tenanted shop premises [Virendra Kumar v State of UP, 2003 Cr LJ 2709 : 2003 All LJ 1336 : 2002 (45) All Cr C 187 : 2002 (2) All Rent Cas 28 (SC)]. [s 145.55] Sub-section (5) : [Cancellation of order].—

Page 33 of 45 [s 145] Procedure where dispute concerning land or water is likely to cause breach of peace.— The parties or other persons interested in the land, though not served with notice [Bhure, 25 Cr LJ 159; Ganga Singh v Raj Bahadur Singh, AIR 1958 All 803 : 1958 Cr LJ 1369], can come in to show that no such dispute likely to cause a breach of the peace existed and order should be cancelled. The persons interested do not thereby become parties [Krishna Kamini, 30 C 155, 159, FB; Beni, 5 Cal WN 900; Haran, 37 C 285; Srichand, AIR 1936 L 1012] and there can be no declaration of possession in their favour [Radhamohan, 19 CLJ 653; see Rasik, 25 Cal WN 214]. When interested person has not been made a party, he is entitled to claim relief by invoking sub-section (5) and proviso to section 146 (1) [Punjab & Sind Bank v S. Lakhminarayana Rao, 1981 Cr LJ 689 : ILR (1981) 1 Kant 606 (Kant)]. If the person intervening claims to be in possession, he may ask for being added as a party (see ante, “Parties concerned, etc.”). But when the original contesting parties have settled the dispute, the intervenor cannot ask the court to keep the proceedings pending for adjudication of his rights [Chunilal, 1939 Nag LJ 197].

The apprehension of a breach of the peace is the basis of his jurisdiction and so where the Magistrate is satisfied that there is no such likelihood, he has to cancel the preliminary order [Md. Khandu, 25 Cr LJ 291; Narasayya, AIR 1925 M 1252; Taracharan, 13 Cal WN 125; Manindra, 30 C 112; Bhaggo Singh v Sonoman Singh, AIR 1954 All 13 : 1953 Cr LJ 1858 : 1953 All LJ 471 : 1953 All WR 457]. Where the Magistrate finds that there is no apprehension of a breach of the peace, he has no jurisdiction to go further into the question of possession nor could he direct the release of the property if attached, in favour of one of the parties [Dulla v State, AIR 1953 All 341 : 1953 Cr LJ 740 : 1953 All LJ 314 : 1952 All WR 430; see Rajdeo Singh v Emperor, AIR 1948 All 425 : (1948) 49 Cr LJ 714 : 1948 All WR 216; Gangadhar, AIR 1952 A 580; Ram Lal Singh v State, AIR 1955 All 46 : 1955 Cr LJ 102 : 1954 All LJ 425]. A Magistrate acts illegally if he drops a proceeding on the ground of the applicant having not led evidence to prove that apprehension of a breach of the peace continues. The real question before him is if he is satisfied that the dispute has ceased to involve an apprehension of breach of peace [Abhoy Pada Banerjee v Dhanesh, AIR 1962 Pat 415 : 1962 (2) Cr LJ 623 : 1962 BLJR 459].

The view taken in some cases is that the Magistrate is satisfied that there is no apprehension of breach of the peace only when the parties report that they have settled their dispute [Amritlal, 48 Cr LJ 435; Babu, ILR 1950 All 543], or when any of them denies the existence of dispute [Srichand, 38 Cr LJ 242]. But other cases have held that sub-section (5) is not exhaustive, and satisfaction may come to the Magistrate from other information or his own information entitling him to terminate the proceedings [Md. Ayoob, AIR 1940 SC 51; Hotchand, AIR 1940 SC 167; Narasayya, 49 M 232; Abhoypada, sup] without giving the parties an opportunity to show that there is likelihood of a breach of peace [Narsayya, sup; Suryanarayana, AIR 1924 M 795; Velur Devasthanam v A Sambandamurthi Nainar, AIR 1952 Mad 531 : 1952 Cr LJ 1145 : 1952 (1) Mad LJ 161 : 1952 Mad WN 53]. So whatever the source of his information may be, when he is satisfied that there is no likelihood of a breach of the peace he has jurisdiction to cancel the order of his own motion [Kamalammal, 17 Cr LJ 138; Manindra, 30 C 112; Relumal, AIR 1928 SC 193; Nurul Hasan, AIR 1944 A 210; Sastu, AIR 1924 P 689 : 26 Cr LJ 105; Re : Ivaturi Sambasiva Rao, AIR 1954 Mad 1017 : 1954 Cr LJ 1558 : 1954 (2) Mad LJ 466 : 1954 Mad WN 395; Suryanarayana, 47 M 713 (information by third party); Abdur Rahman, 33 Cal WN 399 (information by police)]. The circumstances in which the proceedings can be dropped as stated in Amritlal N Shah v V Nageswara Rao, AIR 1947 Mad 133 : (1947) 48 Cr LJ 435 : 59 Mad LW 645 : 1946 (2) Mad LJ 349 are not exhaustive [Sambasiva, sup]. But the mere fact that both parties deny that there is any likelihood of a breach of the peace is no ground for stopping proceeding [Khudiram Mandal v Jitendra Nath, AIR 1952 Cal 713 : 1952 Cr LJ 1411 : 56 Cal WN 608].

There must be some materials for the Magistrate’s satisfaction [Sastu, sup]. Where the Magistrate is unable to award exclusive possession to the applicant, the order should be cancelled [Kodanmal, AIR 1945 SC 110]. For cancellation of preliminary order, a positive finding that apprehension of breach of peace does not exist has to be recorded by the Magistrate as a condition precedent [Harekrishna Patra v Choudhury Ramasankar Das, 1978 Cr LJ (NOC) 160 : (1978) 45 Cut LT 473 : 1978 Cut LR (Cri) 139 (Ori)].

If preliminary order is cancelled, the Magistrate is functus officio and has no jurisdiction to pass any order thereafter, e.g., that the crops seized or their proceeds should be restored or the property if attached to be delivered to any party, until he is evicted in due course of law [Daljit, AIR 1939 O 284; Karimuddi, 3 CLJ 573 : 3 Cr LJ 466; Mahalakshmi, 24 Cr LJ 783; Narasayya, 49 M 232; Dulla v State, AIR 1953 All 341 : 1953 Cr LJ 740

Page 34 of 45 [s 145] Procedure where dispute concerning land or water is likely to cause breach of peace.— : 1953 All LJ 314 : 1952 All WR 430; Ram Lal Singh v State, AIR 1955 All 46 : 1955 Cr LJ 102 : 1954 All LJ 425; Dashrath, AIR 1925 N 297; Kishan Sahai v State, AIR 1952 Raj 101 : 1952 Cr LJ 1024 : 1952 Raj LW 11 : ILR (1951) 1 Raj 710]—Contra : When proceeding is cancelled or dropped, the parties must as far as possible be restored to their former position [Jam Bambo, AIR 1942 SC 117; Rajdeo Singh v Emperor, AIR 1948 All 425 : (1948) 49 Cr LJ 714; Sattaya, AIR 1928 M 859; Ram Lal v Mangu, AIR 1960 Raj 216 : 1960 Cr LJ 1138 : 1960 Raj LW 37 : ILR (1959) 9 Raj 968; see Velur Devasthan v A. Sambandamurthi Nainar, AIR 1952 Mad 531 : 1952 Cr LJ 1145 : 65 Mad LW 441 : 1952 (1) Mad LJ 161; Nandipi Nagi Reddy v Vadde Venkatappa, AIR 1953 Mad 436 : 1953 Cr LJ 825 : 1952 (2) Mad LJ 163 : 1952 Mad WN 387; Dasa Mahanty v Gadadhar Samal, AIR 1957 Ori 92 : 1957 Cr LJ 526 : 23 Cut LT 37] if there are materials on the record to show from whose possession the property was attached [Rajdeo Singh v Emperor, AIR 1948 All 425 : (1948) 49 Cr LJ 714; Ram Lal Singh v State, AIR 1955 All 46 : 1955 Cr LJ 102 : 1954 All LJ 425; Murru v The State, AIR 1955 All 95 : 1955 Cr LJ 270 : 1954 All LJ 689 : 1954 All WR 512]; but if it is not possible to determine in whose possession the property was, it should be ordered to remain in the custody of the court until a Civil Court decides [Jam Bhambo, sup; State v Sheoratan Singh, AIR 1951 Nag 201 : 1952 Cr LJ 1 : 1951 Nag LJ 185 : ILR (1950) Nag 787]. Though after dropping proceedings, the Magistrate has no jurisdiction to pass further order under section 145, he can pass incidental order under section 452 or under inherent powers regarding delivery of possession of the attached property [Kaniz Fatima Bibi v State of UP, AIR 1963 All 148 : 1963 (1) Cr LJ 399 : 1962 All LJ 894 : 1962 All WR 752; Narasingha Rou v Sri Charan Panda, AIR 1967 Ori 182 : 1967 Cr LJ 1549 : 32 Cut LT 1194 : ILR (1966) Cut 952]. He can order delivery of property under section 452 when proceedings are dropped after reaching a conclusion under sub-section (5) and under inherent power at any stage earlier than conclusion of enquiry [Jhabboo v Laximi Narayan, AIR 1970 All 595 : 1970 Cr LJ 1459]. If necessary, the Magistrate can hold a preliminary enquiry as to who was in prior possession. Where no person is named in the memo of attachment, order to the police to deliver possession to the person from whom it was attached is not maintainable [Kaniz Fatima Bibi v State of UP, AIR 1963 All 148 : 1963 (1) Cr LJ 399 : 1962 All LJ 894 : 1962 All WR 752 (cases discussed)]. The Magistrate cannot, however, render the provisions of section 145 (6) or section 146 nugatory by adopting a short cut by dropping the proceeding and handing over possession to a third party for management until rights of parties are determined by a Civil Court [Mathuri Mallik v Satrughna Giri, AIR 1959 Ori 81 : 1959 Cr LJ 624 : 25 Cut LT 340 : ILR (1958) Cut 731; Baidyanath Mohanty v Kunjabehari Das Mahapatra, 1957 Cr LJ 288 : 22 Cut LT 435].

Once a proceeding is stayed or an order is passed under sub-section (5), the Magistrate cannot revive the proceeding. He can only draw up fresh proceedings on fresh materials [Kalananda, 15 Cal WN 271 (stayed for arbitration); Khubi, AIR 1921 P 176; Joynal, 52 Cal WN 251; see post : “Fresh Proceedings”].

The District Magistrate can after transferring a proceeding to his own file (now under section 411), cancel it under sub-section (5) on being satisfied that there was no likelihood of a breach of the peace. But he cannot do so because he thought that in a letter to him, one of the parties admitted that the other party was in possession [Taracharan, 13 Cal WN 125].

So far as the right of the Magistrate to drop the proceedings is concerned, section 145(5) of Code of Criminal Procedure, 1973 confers sufficient powers on him to do so. If the Magistrate after initiating the proceedings under section 145 of Code of Criminal Procedure, 1973 was satisfied at a later stage about non-existence of apprehension of breach of peace, there was no question for him to continue the proceedings, because the very basis which gives rise to the jurisdiction of the Magistrate to proceed under section 145 of Code of Criminal Procedure, 1973 scuttles [Surya Narain v State of UP, 2014 (105) ALR 69 : 2014 (86) ALLCC 819]. [s 145.56] Sub-section (6) : Final order [Retention of possession of party in actual possession].— After deciding the question of possession under sub-section (4) by an order indicating that the court had applied its mind to the evidence, the operative or declaratory portion of the order is recorded under sub-section (6) [Maqsood Khan v State, AIR 1955 All 257 : 1955 Cr LJ 750 : 1954 All LJ 690 : 1955 All WR 517]. This is the final order after enquiry (see Sch 2 No. 25) to be signed in full by the Magistrate noting his official position [Nojem, 12 Cal WN 771]. Final order under section 145 shall contain the points for determination, the decision thereon and the reasons for decision [section 354 (6)]. Merely filling up Form 25 without complying with the provisions of sub-section (4) does not make the order valid [Maqsood, sup]. No temporary order can be passed pending the final order on the question of possession [Ramditta, AIR 1921 L 205]. Where a Magistrate proceeded to pass the final order without deciding the plea raised by the opposite party that no dispute likely to cause breach of peace exists or has existed, the order stood vitiated because of his failure to decide the

Page 35 of 45 [s 145] Procedure where dispute concerning land or water is likely to cause breach of peace.— jurisdictional question raised before him [Sarjoo v Babadin, 1975 Cr LJ 1562 (All) (Gajraj v Collector Singh, 1975 Cr LJ 1026, FB : 11975 All LJ 99 : 1975 All WC 55 (All) relied on)].

The final order should (1) describe the subject matter of dispute accurately; (2) declare which party is found to be in possession; (3) state that his possession is to be retained and continued until evicted by law; (4) forbid all disturbance of such possession; and (5) if a party is treated as being in possession under the proviso to subsection (4) his possession should be restored (As to restoration of possession to person forcibly dispossessed, see notes to the proviso to sub-section (4) ante).

“Entitled to possession” obviously means “to retain possession” until eviction by law. It does not of course mean that the Magistrate is given power to decide title or right to possession. A finding that a breach of the peace is likely is not necessary in the final order when the Magistrate has recorded satisfaction of the breach of peace in the preliminary order [Rajpati v Bachan, AIR 1981 SC 18 : 1980 Cr LJ 1276 : (1980) 4 SCC 116 (SC); Ganga, 24 Cr LJ 631; Jhanda, AIR 1922 L 454; Gurditta, AIR 1939 L 108; Gobardhan, 44 Cal WN 427; Madan Chandra v Mukeswar Phukan, AIR 1951 Ass 89 : 1951 Cr LJ 695 : ILR (1950) 2 Ass 419]. Misdescription of property is a mere irregularity if the parties were aware of the subject matter of dispute [Khudiram Mandal v Jitendra Nath, AIR 1952 Cal 713 : 1952 Cr LJ 1411 : 56 Cal WN 608; 56 Cal WN 608; Padmanava Bhattacherjeev Bidhubhushan Das, AIR 1958 Tri 37 : 1958 Cr LJ 1250; Sudhir, AIR 1958 Tri 37]. Order for restoration of possession may be passed after the declaratory order by the succeeding Magistrate [Khudiram, sup].

The words “until evicted therefrom in due course of law” in sub-section (6) of section 145 of Code of Criminal Procedure, 1973, means the eviction of a party in whose favour possession has been declared by the Magistrate consequent upon the adjudication of title or right to possession by a competent court. This does not necessarily mean a decree of eviction [Kashi Nath Gogoi v Jhanbahadin Dorjee, 2009 (1) Gau LR 106 (118) (Gau)].

The Magistrate must give reasons for his decision in the order to enable the High Court to determine whether the terms of sub-section (4) have been complied with and he has applied his mind to the consideration of the effect of the evidence [Ishan, 29 Cal WN 475; Bhuban, 49 C 187 : Mothahar, 25 Cr LJ 1115; Peria, 23 Cr LJ 670; Raghunath, AIR 1928 N 255; Asaram, AIR 1921 N 100]. He should come to a definite finding on the question of possession [Chokalingam, 1933 MWN 1260]. He is however not obliged to decide one way or the other but can pass order under section 146 if the facts authorise it [Reid, 14 C 361; see notes to section 146]. An order striking off proceedings does not amount to an adjudication under sub-section (6) [Manindra, 30 C 112].

In the instant case, it appeared from the record that the Executive Magistrate recorded the existence of apprehension of breach of peace for initiation of proceedings under section 145(1) of Code of Criminal Procedure, 1973 but he had not recorded any finding regarding a case of emergency and that none of the parties was in such possession from the date of preliminary order or he was unable to satisfy himself as to which of them was in such possession of the subject of dispute. Held, the impugned order relating to attachment under section 146(1) of Code of Criminal Procedure, 1973 was neither backed by fact or reasons nor provision based upon the law. Impugned order was not sustainable in the eye of law [Ram Kishan Khitan v Udayanath Pradhan, 2009 Cr LJ 4676 (4678) (Ori) : 2009 (44) OCR 717].

The final order declaring possession should accurately describe the land by specifying the boundaries [Abdul Hamid, 22 Cr LJ 385 (C)]. An order in respect of a larger area than the lands included in the proceeding or lands not included in the proceeding is without jurisdiction [Ganikhan, AIR 1928 N 81; Uttim, AIR 1924 P 589; Sukhari, AIR 1923 P 528; Kirpal, AIR 1939 P 566]. In such a case, if the lands which are the subject of proceedings are distinguishable, the order must be held to be good to that extent [Dulare Kumar v Subans Kumar, AIR 1947 Pat 175 : (1947) 48 Cr LJ 683 : 231 IC 90; Ram Niranjan Missir v Kamdeo Missir, AIR 1959 Pat 196 : 1959 Cr LJ 634 : 1958 Pat LR 352 : 1959 BLJR 78]. After the final order, no supplementary order including other property can be made without hearing the other party [Natabar, 22 Cal WN 552].

Page 36 of 45 [s 145] Procedure where dispute concerning land or water is likely to cause breach of peace.— There is no provision authorising a Magistrate to take proceedings in the nature of execution after order. Disobedience is punishable under section 188 of Indian Penal Code, 1860 [Ranendra, 4 Cal WN 78; see Rameshwar, 27 A 300]. Sub-section (6) gives power to the Magistrate to restore possession to the person wrongfully dispossessed.

Ordinarily a person against whom the order is passed will go to a Civil Court, but if he can get the other party evicted by a Criminal Court in proceedings under section 447 of Indian Penal Code, 1860 he can certainly do so [B Gajadhar Singh v State, AIR 1953 All 684 : 1953 Cr LJ 1518 : 1953 All LJ 352 : 1953 All WR 484]. [s 145.57] Ex parte order.— If a party against whom an order was made ex parte, satisfies the Magistrate that no notice was served upon him, he should grant a rehearing of the case [Kalicharan, 24 Cal WN 902; Thanuram Gogoi v Tankeswar Dowera, AIR 1951 Ass 141 : 1951 Cr LJ 1406; see Sego, 28 Cr LJ 418; Lunkhothang Mangru v Mochom Anal Thumbol Anal, AIR 1960 Mani 43 : 1960 Cr LJ 1643]. [s 145.58] Effect of final order.— Before the Code of 1898 an order was binding only on the parties [Nobo, 7 CLR 291; Janaki, 3 Cal WN 329; Kuppayar, 18 M 51]; but since the insertion of sub-section (3), which requires publication of notice, the order is binding on all persons interested in the land whether a party or not. The position has been made more clearer by insertion of new sub-clause (b) in sub-section (6) requiring service and publication of final order in the manner of sub-section (3). Further, the intention is that the order should have reference rather to the subjectmatter of the dispute than to the persons engaged therein [see Krishna Kamini, 30 C 155, 186, 192, 197, FB; Nathubhai, 11 Bom LR 277; Satyacharan, 33 Cal WN 1002; Jainath, AIR 1929 P 505; Parag, A 1943 O 229; Raghunandan, AIR 1929 P 210; see however Maya Debi, AIR 1935 L 115]. Thus, when an order adjudges the possession of a party and it is subsequently disturbed by the successors of the unsuccessful party, the Magistrate must see that the possession is maintained and no fresh proceedings should be initiated for they would be interminable [Aran, 27 Cal WN 171; Ramrachya, AIR 1941 P 667; Ambika, AIR 1929 P 611; Elimuddin, AIR 1936 C 659; Jainath, 30 Cr LJ 840; Raghunandan, AIR 1922 P 210; Baburam Rajeshwari Prasad Ojha v Deo Narain Sao, AIR 1958 Pat 222 : 1958 Cr LJ 552 : 1957 BLJR 594]. The Magistrate can maintain the order of possession by action under section 107 [Parag, AIR 1943 Oudh 229 : (1943) 13 AWR 14]. A temporary change in the character of the land cannot nullify the previous order [Elimuddin, sup]. It has however also been held that a second proceeding under section 145 is not without jurisdiction when a person in actual possession was not a party to the former proceedings [Inderdeo, AIR 1938 Pat 1 : 173 Ind. Cas. 107; Ambika, AIR 1939 Pat 611; Nepal, 44 Cal WN 928], or when the parties to the proceedings are not the same as in the previous proceedings [Bindhyachal, AIR 1946 Pat 330; RK Kulachandra Singh v RK Sanajaoda Singh, AIR 1971 Man 11 : 1971 Cr LJ 225] or when the former proceeding was between agents and the real owners were not parties [Pearelal, AIR 1934 Pat 853]. Where a person’s written statement is rejected, the order does not bind him [Raghunath, AIR 1924 P 783]. An order under section 145(6) passed in the presence of the parties in court is duly promulgated within section 188 qua the parties [State v Tugla, AIR 1955 All 423 : 1955 Cr LJ 1111 : ILR (1955) 2 All 547].

An order under section 145 binds also persons who are not parties but interested in the possession of disputed land and have notice of the proceedings [Alarakshi Bibi v Ujala Bibi, AIR 1966 Ori 49 : 1966 Cr LJ 275 : 31 Cut LT 1112; Raghunath Behera v Purna Chandra Mahanta, AIR 1966 Ori 170 : 1966 Cr LJ 935 : 32 Cut LT 256]. Minor though not represented by guardian is bound by the order [Alarakshi, sup].

Order under section 145 binds all the members when proceeding was started by the managing member [Ramsahai, 45 A 306; Venkatasomaraju, AIR 1930 M 48]. It binds the representatives of parties [Seth Thakurdas, AIR 1936 N 192; Goluck, 13 C 175; Muneshwar, 39 Cr LJ 868], or those who claim through the parties [Jogendra, 23 C 731]. If after a party is declared to be in possession, the other party is accused under section 379 of Indian Penal Code, 1860 for taking away the crop of the land, he can show that he was in actual possession in spite of the order under section 145 [Rakhal, 31 Cal WN 694].

Order under section 145 is meant only to be a temporary order until one or other of the parties gets his rights determined in a Civil Court [Kunja, 29 C 208; Barkatunnissa, 22 A 214] decision of which would have

Page 37 of 45 [s 145] Procedure where dispute concerning land or water is likely to cause breach of peace.— precedence over the order [Zamila Khatoon v Umar, 1981 Cr LJ 1403 : (1981) 85 Cal WN 940 : 1981 (2) Cal HN 123 (Cal); Nata Podhan v Banchha Baral, AIR 1968 Ori 36 : 1968 Cr LJ 336 : 33 Cut LT 974]. A final order does not give rise to a presumption in favour of the successful party and it is open to the Civil Court to come to a contrary conclusion [Nata, sup; (Bhinka v Charan Singh, AIR 1959 SC 960 : 1959 Cr LJ 1223; Bhima, AIR 1954 Ori 129 followed); Niranjan Singh v Kasturi Lal, AIR 1971 P&H 4 : 1971 Cr LJ 79 : ILR (1971) 1 Punj 474]. Even if the Civil Court has jurisdiction to restrain criminal proceedings, it will not interfere to keep the order in abeyance by way of injunction except in very special circumstances [Zamila, sup; (Corp of Cal, AIR 1924 C 334 relied on)].

It is no bar to an order for restitution under section 144 of Code of Civil Procedure, 1908 [Rajjabali, 35 Cal WN 483].

The expression “until evicted therefrom in due course of law” is not confined to eviction through Civil Court but extends to any court of competent jurisdiction [Nata, sup].

The word “‘until evicted therefrom in due course of law” as occurring in sub-section (6) of section 145 mean the eviction of the party successful before the Magistrate, consequent upon the adjudication of title or right to possession by a competent court that does not necessarily mean a decree of eviction. The party, unsuccessful before the Magistrate, may dispute the correctness of the finding arrived at by the Magistrate and is at liberty to show before the competent court that it has not dispossessed the successful party or that it is the unsuccessful party and not the successful party who was actually in possession and the finding to the contrary arrived at by the Magistrate was wholly or apparently erroneous and unsustainable in law [Shanti Kumar Panda v Shakuntala Devi, AIR 2004 SC 115 : 2004 Cr LJ 1249 : (2004) 1 SCC 438 : 2003 (4) Cur CC 259 (SC)]. [s 145.59] Admissibility of final order as evidence of possession.— Order under section 145 declaring that one of the disputants is in possession and is entitled to retain it until evicted in due course of law is admissible on general principles as well as under section 13 of Evidence Act. It is evidence inter alia, as to who was declared entitled to retain possession [Dinomont, 29 A 24 : 6 Cal WN 386 : 29 C 187]. The order is evidence that the successful party was in possession on the date of the order [Rakhal, 31 Cal WN 964] and has evidentiary value till reversed by the competent Civil Court [Rampukar, AIR 1973 P 310]. An order under section 145 is evidence of the fact as to who was declared entitled to retain possession and it is admissible against all persons when the fact of possession on the date of the order is to be ascertained. But as between parties to the proceeding such an order is also admissible as evidence of possession before two months of date of order [Jogendra, 34 Cal WN 358 : 57 C 987]. [s 145.60] Violation of order.— Under section 145 is punishable under section 188 of Indian Penal Code, 1860. For punishment for contempt of court, a very strong case has to be made out [Dulal Chandra Bhar v Sukumar Banerjee, AIR 1958 Cal 474 : 1958 Cr LJ 1162 : 62 Cal WN 595]. Offence under sections 188 and 147 of Indian Penal Code, 1860 cannot be tried except upon the complaint of the Magistrate who passed the order under section 145 or his superior [Saladi Chandra Rao v Gollakoti Sambayya, AIR 1958 AP 718 : 1958 Cr LJ 1378 : 1958 Andh LT 831]. [s 145.61] Fresh proceedings.— After cancellation of an order under sub-section (5), there is no bar to institute fresh proceeding in respect of the same land if there is a fresh dispute endangering the peace [Sadhu, 15 Cal WN 468]. But it must be based upon fresh materials and not upon the basis of earlier proceedings [Manik, 6 Cal WN 923; Haripada, AIR 1935 C 494; Tarini, 20 C 867; Khubi, 22 Cr LJ 481; Ghulam, 3 L 401; Jyotish Kotwal v Dwarka Prasad Marwari, AIR 1967 Pat 309 : 1967 Cr LJ 1359]. But when a final order in respect of the disputed land is in force, it is the duty of the Magistrate to maintain that order without drawing up fresh proceeding (see ante, “Effect of Final Order”).

After a final order under sub-section (6) no fresh proceeding can be drawn up unless that order has been vacated [U Thi, AIR 1935 Rangoon 447 : 159 Ind. Cas. 308]. [s 145.62] Dismissal for default.— As the proceeding is started in the interest of public peace, the application cannot be dismissed for default in the absence of informant [Bhavrao Ganpatrao v Bhimrao Tukaramji, AIR 1958 Bom 450 : 1958 Cr LJ 1383 : 60

Page 38 of 45 [s 145] Procedure where dispute concerning land or water is likely to cause breach of peace.— Bom LR 80 : ILR (1958) Bom 544; Babu, ILR 1950 All 543; Babu Ram v Ramji Lal, AIR 1964 Punj 444 : 1964 (2) Cr LJ 456 : 66 Punj LR 196] and if such an order is passed, section 300 is no bar to the filing of another application [Shanker Lal v Chaturbhuj, AIR 1958 Raj 351 : 1958 Cr LJ 1548 : 1957 Raj LW 509 : ILR (1957) 7 Raj 1077]. Fresh application on same allegation can be entertained but the Magistrate cannot review his order of dismissal and refuse the application [Baburam, sup]. If an application is rejected for not alleging breach of peace, another application on the same facts with such allegation is maintainable [Rana Balram v Pritam Singh, AIR 1960 Punj 464 : 1960 Cr LJ 1232 : 62 Punj LR 568]. [s 145.63] Sub-section (7) : [Death of party].— It is intended to maintain the jurisdiction of the Magistrate when the danger to peace exists notwithstanding death of a party [Kamalammal, 17 Cr LJ 138]. Magistrate has no choice except to implead a person claiming to be legal representative of the deceased party [Hari Saran Singh v Patangal, AIR 1967 All 486 : 1967 Cr LJ 1259 : 1966 All WR 697; Thokcham Narahari Singh v Moiranghem Kerani Singh, AIR 1967 Man 47 : 1967 Cr LJ 1660; Sankharam Sahu v Buro Takbi, 1976 Cr LJ 1952 (Gau)]. Dropping of proceedings on the death of a party is ultra vires [Misil, 38 Cal WN 742]. The word “may” indicates that it is not obligatory. When the danger has disappeared, the Magistrate can discontinue the proceedings [Kamalammal, sup]. Legal representatives of the deceased party may be substituted in revision [Suryanarayana, AIR 1942 Mad 249 : (1941) 2 Mad LJ 1047 : 1942 MWN 38].

If the complainant and the other party drop out of the proceedings and the person really concerned in the dispute comes in, the dispute will still be there and no fresh order is necessary [Kulsumunnisa v Rex, AIR 1949 All 623 : (1949) 50 Cr LJ 949 : 1949 All WR 553]. [s 145.64] Sub-section (8) : [Crop subject to decay].— It is independent of the third proviso to sub-section (4) (now sub-section (1) of section 146 relating to power of attachment in case of emergency) as an order may be necessary for custody or sale of produce subject to speedy decay without attachment [Nankishore, AIR 1943 P 124; Harekrushna Patra v Choudhary Ramasankar Das, 1978 Cr LJ (NOC) 160 : (1978) 45 Cut LT 473 : 1978 Cut LR (Cri) 139 (Ori)]. Sub-section (8) does not permit attachment of a crop but only permits taking care of that crop in a given situation [Sardarilal v State of Punjab, 1980 Cr LJ 1151 : 1980 Chand LR (Cri) 248 (P&H)]. As to return or restoration of crop, when proceeding is cancelled under sub-section (5) see ante. The money lying as saleproceeds of the yield of the land is governed by sections 452 and 454; Gyani Dass v Dharam Dass, AIR 1954 Pat 74 : 1954 Cr LJ 78 : 1953 BLJR 457 : ILR 32 Pat 613].

Where the opposite party was already represented in the case, order for auction of self-standing crops on the disputed land without hearing the opposite party was set aside as being illegal [Bali Puran v Saheba Puran, 2008 Cr LJ (NOC) 46 : 2007 (3) AIR Jhar R 285 (Jhar) : 2007 (3) East Cri C 369]. [s 145.65] Sub-section (9).— It is in line with section 254(2). In a case it has been held that direction to receive evidence implies a duty to summon witnesses desired by the parties [Chakrapan, AIR 1930 A 319]; this interpretation has not been approved [Kunja Behari, AIR 1930 A 332]. In other cases, the view was that “receive” all such evidence as may be produced by them did not require that the Magistrate should summon witnesses [Meah, AIR 1938 R 229 : 39 Cr LJ 708 A 130] but the discretion has to be exercised judiciously and not arbitrarily [Bhagwani v Harlal, AIR 1968 Raj 324 : 1968 Cr LJ 1578]. Sub-section (9) is self-contained and is not subject to sub-section (4) [Bhagwani, sup: Challamuthu Padayachi v Rajavel, AIR 1964 Mad 263 : 1964 (1) Cr LJ 674; Ghutu Aranda v Somser Ali, AIR 1964 Ass 105 : 1964 (2) Cr LJ 272 (1)]. It would seem that sub-section (9) intends that proper application for summoning necessary witnesses should not be refused unless it is clearly vexatious. When injustice is caused for not compelling attendance of witnesses, the High Court will interfere [Kunj Behari, AIR 1936 A 322 : 37 Cr LJ 694].

The effect of rejecting application by both parties for summoning witnesses is to shut out the evidence and this vitiates the decision [Vijay Rao v Laxman Rao, AIR 1968 Mys 16 : 1968 Cr LJ 71 : 1967 (1) Mys LJ 256 : 1967 Mad LJ (Cri) 284]. A party can submit application under sub-section (9) at any stage of the proceedings even after closure of evidence [Bhagwani, sup : Mirza Mohd. Aziz v Safdar Husain, AIR 1962 All 68 : 1962 (1) Cr LJ 116 : 1961 All LJ 802 : 1961 All WR 618; Ghatu, sup; Bahori v Ghure, AIR 1960 Raj 15 : 1960 Cr LJ 116 : 1959

Page 39 of 45 [s 145] Procedure where dispute concerning land or water is likely to cause breach of peace.— Raj LW 472 : ILR (1959) 9 Raj 818] but such witnesses would not be called as party’s witnesses [Bhagwani, sup]. [s 145.66] Limitation.— The Limitation Act 1908 Article 47 does not appear in the Limitation Act, 1963. The former prescribed three years for a civil suit, the starting point being date of order under section 145(6) of the Code of 1898. The Limitation Act, 1963 and Article 65 lays down uniform period of 12 years for a suit for possession, the starting point being the date on which possession became adverse [Cf Kulesware Devi v Jagadamba Devi, 1987 Cr LJ 1950 : 1987 Pat LJR 70 : 1987 (2) Cur CC 524 para 7 (Pat)]. [s 145.67] Sub-section (10).— So that it may not be considered that the word “shall” in sub-section (1) precludes the Magistrate from proceeding under section 107, sub-section (10) makes it clear that the Magistrate may proceed under section 145 or section 107 or both according to the circumstances of the case. The word “shall” need in no way embarrass any Magistrate in using his discretion as to which of the section will be most appropriate [Agni Kumar, 32 Cal WN 1173, 1183 FB; see Abbas, 16 Cal WN 83, FB; Sheoraj, 32 C 966; Thakur, 34 A 449; Dhuma, 23 Cr LJ 567]. It may be necessary to bind parties under section 107 to prevent breach of peace even though proceeding had been taken under section 145 [Muthia, 36 M 315; Bandi, 22 Cr LJ 384; see ante, notes to section 107]. [s 145.68] Orders not permissible under section 145.— Order determining the method by which possession is to be exercised [Akaloo, 36 C 968; Rohini, 30 Cal WN 873]; requiring the person found in possession to restore cemeteries and allowing access to persons who desire to invoke blessings [Balakrishna, AIR 1939 Mad 791 : (1939) 2 Mad LJ 111 : 1939 MWN 737]; that the party found in possession should keep intact two pathways for the use of the other party [Asit, 17 Cal WN— Contra : Easement can be granted [Amarsang, 48 B 512]; directing division of crops [Ramnarain, 8 CLJ 242]; in favour of a person not a party [Baburam, AIR 1939 Pat 187 ; Tei Bhan, AIR 1936 Oudh 188]. Dispute as to right to manage a Church [Samuel Politus v Aziz William Bishop, 1980 Cr LJ 309 : 1980 : Chand LR (Cri) 186 : (1980) 7 CrLT 42 (P&H)]. [s 145.69] Proceedings under section 145 and civil suits relating to the land.— It is not fit that proceedings under section 145 should be taken when civil suit is pending between the parties for the determination of their rights [Ali Md., 24 Cal WN 1039, 1048; Dula Dei v Krupasindhu Patnaik, AIR 1966 Ori 5 : 1966 Cr LJ 38 : 31 Cut LT 839; Sardari Lal v State of Punjab, 1980 Cr LJ 1151 : 1980 Chand LR (Cri) 248 (P&H); Gyandeo Sharma v State of Bihar, 2006 Cr LJ 2710 (Pat)] and if possible it should be avoided [Gobind, 6 C 835]; but if there is apprehension of breach of the peace, there is no bar [Kishori, 36 C 370; Imambu v Hussenbi, AIR 1960 Mys 203 : 1960 Cr LJ 1112 : State of Bihar v Hari Mishra, AIR 1965 Pat 411 : 1965 (2) Cr LJ 527 : 1965 BLJR 97; Shamrati Kuer v Janki Saran Singh, 1981 Cr LJ 978 : 1981 Pat LJR 166 : 1981 BLJR 263 (Pat); Ram Narain Sharma v Mahesh Narain Sharma, 1981 Cr LJ (NOC) 198 : (1981) 10 DLT 80 (Del)], and even if there be any such apprehension he should consider whether it can be averted or not by proceedings under section 107 [Tikuda v State, AIR 1961 Raj 216 : 1961 (2) Cr LJ 552 : 1961 Raj LW 469; Md. Muslehuddin v Md. Salahuddin, 1976 Cr LJ 1150 : 1975 Pat LJR 514 : 1975 BBCJ 579 (Pat)]. If there is no stay order by the Civil Court, and there is dispute likely to cause breach of the peace, the Magistrate in case of emergency can attach the property [Kuldip Singh v State of HP, 1977 Cr LJ 1948 (HP)]. If there is an order in regard to possession, by interim injunction whether passed before or after initiation of proceedings under section 145, due weight should be given to it and it may be advisable to drop the proceedings under section 145 and initiate proceedings under section 107 [Harijan Yellaiah v State of AP, 1981 Cr LJ 988 : 1980 (2) Andh LT 290 : 1980 Mad LJ (Cri) 763 (AP). Where suit between the parties is only for declaration of title in respect of same property in that case also, a parallel proceeding under section 145 cannot be instituted or allowed to continue. Subsequent petition under section 145(5) which has been filed on different ground is quite competent [Gyandeo Sharma v State of Bihar, 2006 Cr LJ 2710 (Pat)].

Proceedings under section 145 of Code of Criminal Procedure, 1973 cannot proceed if the Civil Court has passed some order deciding the rights of the parties with regard to its possession. Mere pendency of suit or existence of an ad interim direction directing maintenance of status quo by the Civil Court in a suit instituted after initiation of proceedings under section 145 of Code of Criminal Procedure, 1973 does not debar the Magistrate to decide the proceedings [Aijaz Ahmad Fazili v Arshed Ahmed Maqdoomi, 2003 Cr LJ 1133 (J&K)].

Page 40 of 45 [s 145] Procedure where dispute concerning land or water is likely to cause breach of peace.— Mere pendency of suit in Civil Court does not oust the jurisdiction of the Magistrate to proceed under section 145. If final decree or interim order is passed by the Civil Court, the Criminal Court must, of course, respect it [Dominic v The State, 1987 Cr LJ 2033 : 1987 (2) Crimes 551 : 1987 (1) Ker LT 293 (Ker)].

Where civil proceedings have been already instituted regarding immovable property, proceedings under section 145 cannot be taken, In such a situation, regard may be had to section 107, if breach of peace is apprehended [Shankar Lal v Anoop Singh, 1989 Cr LJ (NOC) 150 : 1989 MPLJ 464 (MP)].

According to some rulings, mere pendency of civil proceedings is not a bar to proceedings under section 145. But determination of the question of possession by the Civil Court binds the Magistrate [Venkatakrishnan v State of TN, 1989 Cr LJ 1836 : 1989 (1) Crimes 236 (SC)].

In the suit for injunction to restrain the defendant from interfering with the plaintiff’s possession of the land, the court ordered maintenance of status quo during the pendency of the suit and declined to grant temporary injunction, as the court was not prima facie satisfied about any party being in possession of the land in dispute. In such a situation, if the plaintiff initiates proceedings under section 145 and the Magistrate is, from the police report, satisfied that there is likelihood of breach of the peace, he is competent to proceed under sections 145 and 146, and the proceedings cannot be quashed simply because of the pendency of civil suit [Jagdish v SubDivisional Magistrate, 1987 Cr LJ 1198 : 1987 (1) Crimes 483 : (1987) 91 Punj LR 206 : 1987 Chand Cr C 75 (P&H)].

A concluded order under section 145 of Code of Criminal Procedure, 1973 made by the Magistrate of competent jurisdiction should not be set at naught, merely because the unsuccessful party has approached the Civil Court. The order is subject to decision of the Civil Court. The unsuccessful party therefore must get relief only in the Civil Court. He may file a suit for declaration and prove a better right to possession. The Civil Court has jurisdiction to give a finding different from that of which the Magistrate has reached [Jhunamalalias Devandas v State of MP, 1989 Cr LJ 82 : AIR 1988 SC 1973 : (1988) 3 SCJ 401 : 1988 (3) Crimes 288 : (1988) 4 SCC 452 (MH Kaniaand K. Jagananatha Shetty, JJ)]. Pendency of civil suit does not ipso facto justify quashing of criminal proceedings [SK Abdul Hamid v Tamser Ali, 1983 Cr LJ (NOC) 6 (Gau)].

In cases involving disputes about possession, three types of order by the Civil Court can be envisaged: (1) the appointment of a receiver to manage the property; (2) the restraining of one of the parties from interfering with the possession of the other party during the pendency of the suit about which the Civil Court prima facie, feels satisfied and (3) the maintenance of status quo during the pendency of the suit. In the first type of cases, there cannot be any possibility of dispute as the court removes the apprehension of breach of peace by putting the property in its custody. In the second type of cases, the jurisdiction of a Criminal Court cannot be restricted [Mohinder Singh v Dilbagh Rai, 1977 Cr LJ 1029 : 78 Punj LR 803 : (1976) 3 Cr LJ 530].

At the time of initiation of proceedings under section 145 a suit for specific performance was already pending and it was the case of the plaintiff in that suit that he had already been given possession of the land. It was held that in the circumstances, an order under section 145 ought not to have been passed against the plaintiff [Sheo Badan Singh v Aditya Prasad Singh, 1990 Cr LJ 855 : (1989) All LJ 473 : 1989 UP Cr R 199 : 1989 All Cr R 794 (G.B. Singh J.)].

Civil proceedings which do not involve dispute relating to possession at all but which concern the performance of functions as office-bearers have no relevance at all to proceedings under section 145 [NA Ansary v Jackiriya, 1991 Cr LJ 476 : 1990 Mad LW (Cri) 93 : 1990 Mad LJ (Cri) 337 (Mad) (Janartharnam J.)].

Where a party has obtained an ad-interim order of non-interference with his possession, if the other party uses force to dispossess him, leading to the apprehension of breach of peace creating a situation for the launching of section 145 proceeding and attraction of its emergency power, the Magistrate will step in to defend the orders

Page 41 of 45 [s 145] Procedure where dispute concerning land or water is likely to cause breach of peace.— of the Civil Court. In the third type of cases, that is, maintenance of status quo during the pendency of the civil suit, the Civil Court is not prima facie satisfied about any party being in possession. In such cases, when both parties claim possession, a dangerous situation may develop with the anxiety of both parties or any of them to get into actual possession, and the magistrate, by attaching the subject matter of dispute under section 145 when such a situation develops and deteriorates, would be acting to defend the maintenance of the status quo as ordered by the Civil Court [Mohinder Singh v Dilbagh Rai, 1977 Cr LJ 1029 : 78 Punj LR 803 (P&H); RH Bhutani v Mani J Desai, A 1968 SC 1444 : 1969 Cr LJ 13 and Sajjan Singh v Sajjan Singh, 1970 (2) UJ (SC) 75 relied on)].

Recent decision of competent Civil Court in respect of the same subject matter on the question of possession even for the purpose of giving interim relief should be respected by the Magistrate [Yeshwant Ganpati Khot v Anusuyabai Annakhot, 1979 Cr LJ 67 (Bom) : 1979 Bom CR 54 : 1980 (2) Mah LR 10 (Bom)]. Where in a pending civil suit for injunction, interim order is passed by Civil Court to maintain status quo, proceedings under section 145 is not called for and proceedings under section 107 should be resorted to, if necessary [Sardarilal v State of Punjab, 1980 Cr LJ 1151 : 1980 Chand LR (Cri) 248 (P&H)]. Jurisdiction to maintain peace will prevail over the orders of the Civil Court except where, (i) the determination of rights by Civil Court has become final, or (ii) the Civil Court has appointed a receiver [vide section 146 (2)]. In this case, it has been held that the Civil Court interim order should be followed and proceedings under section 107 should be resorted to, if necessary, taken in Yeshwant Ganpati Khot v Anusuyabai Anna Khot, 1979 Cr LJ 67 (Bom) : 1979 Bom CR 54 : 1980 (2) Mah LR 10 (Bom) and Sardarilal v State of Punjab, 1980 Cr LJ 1151 : 1980 Chand LR (Cri) 248 (P&H) is not good law in the face of Sajjan Singh, 1970, 2 UJ (SC) 75 [Ashrafilal v Labh Singh, 1981 Cr LJ 1172 : (1981) 19 DLT 450 : 1981 Raj LR 443 (Del)].

Criminal Courts should not interfere at a time when questions about delivery of possession were pending in the Civil Court [Rajendra, AIR 1939 Pat 151]. When a party by bringing a suit for recovery of possession has admitted the possession of the other party, the Magistrate has no jurisdiction to apply section 145, though other provisions of law may be availed of to keep peace [Amriteshwari, 7 Cal WN 558].

Where during the pendency of proceedings under section 145, a civil suit is instituted and a receiver is appointed, it is not sufficient in itself to drop the criminal proceedings if there is danger of breach of the peace. But as the appointment of a receiver removes that danger, it may properly be discontinued to save waste of time and money [Makhana, 36 Cr LJ 464; Ram Ch, 33 Cr LJ 556]. Where after an adverse order against him under section 145, a party goes to the Civil Court and obtains an interim injunction restraining the other party from taking possession, it would be unfair to allow him the advantage of his forcible and wrongful dispossession. Injunction was dissolved and possession restored [Bai Jiba, AIR 1926 B 91 : 27 Cr LJ 661].

Order under section 145 being summary order relating to possession, the party aggrieved can go to the Civil Court to establish his right [Kunj Behari, AIR 1936 All 322 : (1936) AWR 439 : 162 Ind. Cas. 736]. Limitation is three years (now 12 years under Article 65 of Limitation Act, 1963) under Article 47 of Limitation Act which runs from the date of the original order and not the date of the order in revision [Nagabhushanayya, AIR 1946 M 144]. The legal effect of the order of the Criminal Court is to place the person found to be in actual possession until evicted by law. It follows that in a civil suit by the person against whom the question of possession was decided, no injunction can be granted in his favour against the person found to be in possession [Sewadas, AIR 1947 Lah 173], but a receiver can be appointed [Barkatunnissa, 22 A 214; Makhana, AIR 1935 Oudh 255]. If, however, possession is found by the Magistrate in favour of the first party (defendant) under section 145(4) and the other party (plaintiff) brings a civil suit for title and confirmation of possession, the Civil Court can issue an injunction restraining the defendant from interfering with the plaintiff’s possession [Brojendra, AIR 1960 Gau 111, SB]. If in a prior pending civil suit there is an injunction restraining the defendant from entering the land, he cannot disobey it on the strength of a Criminal Court’s order under section 145 which is of no consequence [Umrao Singh, AIR 1961 MP 9]. When a party against whom an order has been passed under section 145 files a civil suit and the Civil Court grants a temporary injunction stopping the other party from taking possession, the order of the Magistrate though valid cannot be enforced so long as the injunction lasts [Mirza Mohd. Aziz v Safdar Husain, AIR 1962 Raj 68 : 1962 (1) Cr LJ 116 : 1961 All LJ 802 : 1961 All WR 618]. The Magistrate’s order confers no title, but the person in possession can only be evicted by one who can prove a better title and the onus is on him [Dinomoni, 29 C 187 : 29 IA 24; Manindra, 23 Cal WN 593]. An order on a compromise in a

Page 42 of 45 [s 145] Procedure where dispute concerning land or water is likely to cause breach of peace.— case under section 145 does not preclude civil suit as it does not determine any question of title [Gopi, 45 A 162].

The statements of witnesses by a police officer under section 162 and reduced to writing can be used in a civil proceeding under section 145, Evidence Act to contradict them [Malakala Surya Rao v Gundapuneedi Janakamma, AIR 1964 AP 198 : 1964 (1) Cr LJ 504 : 1963 (2) Andh WR 485].

Unsuccessful party cannot bring a suit under section 6, Specific Relief Act, 1963 on the allegation of dispossession [Moore, 12 Cal WN 696; Jogendra, AIR 1935 C 454]. But where a person was dispossessed by another before the proceeding under section 145 and the latters possession was maintained, the former can sue under section 6 of Specific Relief Act, 1963 [Jwala, 30 A 331]. An unsuccessful party may file a suit under section 6, Specific Relief Act within 6 months from date of dispossession, or a suit as contemplated under Articles 64 and 65 of Limitation Act, 1963 within 12 years or may take recourse to other remedies under any statute [Duana Moliko v Bhagabat Biso, AIR 1967 Ori 110 : 1967 Cr LJ 1026 : 33 Cut LT 688 : 1990 (1) BLJ 437].

Sections 145 and 310 being in a different chapter and relating to different circumstances, enquiry made by the Magistrate under section 310 in proceeding under section 145 is not proper [Deo Prasad Saha v Ravi Ravidas, 1990 Cr LJ 823 : 1990 PLJR 375 : 1989 BLT (Rep) 608].

In this case, it was held that main object of proceeding under section 145 of Code of Criminal Procedure, 1973 was to solve the question of substantial possession over the disputed property and in this way abrogation of said property have no concern with this proceeding [Gajendra Singh v State of Rajasthan, 1995 Cr LJ 2133 (Raj)].

When the court is satisfied with this fact that there is danger of breach of peace regarding the landdispute, the proceeding under section 145 Code of Criminal Procedure, 1973 can be started. Not only this but also the High Court cannot interfere with the said proceeding [Md. Kubat Ali v Pinjira Begum, 1995 Cr LJ 1754 (Gau)].

When the Executive Magistrate initiated a proceeding under section 145 of Code of Criminal Procedure, 1973 and passed order of attachment of property, the revision against the order was dismissed. Second revision against the same order does not lie and dismissed as not maintainable [Dilip Shawalias Dula v Swarup Daw, 1995 Cr LJ 2724 (Cal)].

Where a civil suit regarding the use and possession of disputed land is already pending, initiation of parallel criminal proceeding either under section 145(1) or under section 147 of Code of Criminal Procedure, 1973 is not justified [Yakub Ali v State of Rajasthan, 1995 Cr LJ 1376 (Raj)].

Magistrate has no jurisdiction to declare possession of property illegal on declaring documents relied upon as valid [T Esseswar Rao Patra v Rusava Mohanty, 2001 Cr LJ 2774 : (2000) 18 OCR 751 : 2000 (2) Ori LR 11 (Ori).

Where the order of conversion of proceedings under section 144 of Code of Criminal Procedure, 1973 into one under section 145 of Code of Criminal Procedure, 1973 did not disclose the reasons why the dispute was likely to cause breach of peace, as no members of the public were involved in the matter, it was held that the matter was purely a private dispute and conversion of proceedings would not be sustainable [Kaushal Mishra v Raj Kumar Mishra, 2008 Cr LJ (NOC) 272 (Gau) : 2008 (61) All Ind Cas 953]. [s 145.70] Review.— The Magistrate under section 362 cannot review the final order made by him or his predecessor [Ram Dulare,

Page 43 of 45 [s 145] Procedure where dispute concerning land or water is likely to cause breach of peace.— 14 Cr LJ 605; Parbutty, 7 Cr LJ 401; Lallan, 48 A 258; Narayan, 28 Cr LJ 289; Joynal, 52 Cal WN 251]. The remedy is to go to a Civil Court or apply for revision in a proper way:

Initiation of proceedings by the Sub-Divisional Magistrate cannot be set aside as he is competent [Murlidhar Das v Dhruba Charan Das, 1989 Cr LJ NOC 163 : 1988 (1) Ori LR 465 : 1988 OCR 232 (Ori).

The High Court will not interfere before the Magistrate has decided the case [Rajnandan, AIR 1932 P 185 : Sheonarayan Singh v Bharath Singh, AIR 1954 Pat 182 : 1954 Cr LJ 500 : ILR 32 Pat 227]. As the duty of weighing evidence is on the Trial Court [Mahadeo, AIR 1945 O 12; Abdul Sattar, 27 Cr LJ 471] where there is evidence, the sufficiency or otherwise of materials will not be considered by the High Court [Shibnarayan, AIR 1943 P 44; Rajpati v Bachan, AIR 1981 SC 18 : (1980) 4 SCC 116 : 1980 Cr LJ 1276 (SC)]. But when the finding is based on no material [Wazir Chand v Rawal Chand, AIR 1947 Lah 227 : (1947) 48 Cr LJ 844] or when the finding is vitiated by legally inadmissible evidence [Govind v Sate, AIR 1969 All 405 : 1969 Cr LJ 963], it will interfere. Unless there is any error of law or anything special which need not always be a ground of law, to induce the High Court to think that there has been a miscarriage of justice, it will not go into evidence of facts [Fakir, 35 Cal WN 374; Gobardhan, AIR 1942 Pat 489]. High Court will not ordinarily examine whether the grounds on which the Magistrate was satisfied as to likelihood of a breach of the peace can afford a reasonable foundation for his conclusion [Kuloda, 33 O 33 dissenting from Dhanput, 20 C 513]. High Court in the exercise of its revisional jurisdiction will not go into the question of sufficiency of materials which has satisfied the Magistrate under section 145 (1) [RH Bhutani v Piani J. Desai, AIR 1968 SC 1444 : 1969 Cr LJ 13]. It can alter an order under section 145 into one under section 146 [Reid, 14 C 361; Satyendra, 20 Cal WN 1014] or section 147 [Amarsang, 48 B 512]. When the Magistrate after instituting proceeding cancels it on the ground that there is no longer any likelihood of breach of peace, the High Court will not interfere [Manindra, 30 C 112]. [s 145.71] The High Court will interfere in the following cases.— Gross irregularity [Nruul Hasan, 48 Cr LJ 749]; non-compliance with the requirements of the section [Basawan, AIR 1922 P 77; Mutiyalamma, 1931 MWN 1317]; decision perverse and contrary to unrebutted evidence [Sarju, 25 Cr LJ 1066] or arrived at without considering the evidence on record [Dulare Kumar v Subans Kumar, AIR 1947 Pat 175 : (1947) 48 Cr LJ 683]; refusal to receive evidence produced [Tirumalraju, 39 M 561; Kotha, 34 C 840] or to summon material witness [Surjakanta, 30 C 508]; proceeding initiated on vague report of police officer [Suryakant, 11 Cal WN 198]; decision based merely upon local enquiry [Lalbehari, 10 Cal WN 181; Shahadut, 46 C 1056]; refusal of costs and no reason given [Udhab, AIR 1937 Pat 559]; decision as to possession by misreading of evidence and relying upon irrelevant document [Dulari, sup]; failure to find which party was in possession [Periasubba, AIR 1923 Mad 142; absence of reasons for decision [Motaher Ali, AIR 1924 Cal 848]; decision influenced more by consideration of title than actual possession [Gyan Debij v Rex, AIR 1949 All 44 : (1949) 50 Cr LJ 209 : 1948 All WR 180].

High Court can order costs of a revisional proceeding [Bai Jiba, AIR 1926 Bom 91—Contra : Veerappa, 48 M 262]. During pendency of revision petition, High Court has full power to stay operation of order for delivery of possession [Bansi v Hari Singh, AIR 1956 All 297 : 1956 Cr LJ 561 : 1956 All LJ 735]. It has no power to appoint receiver pending disposal of a revision petition [Marudayya, A 1926 M 139].

In a revision by some of the parties, the order may be set aside if not in accordance with law [Pearey Lal v State, 1956 All LJ 267]. Revisional power is discretionary and when the party comes after a long time, the High Court will not interfere [Shibendra, AIR 1943 Pat 44].

Proceedings under section 145 were dropped in view of the pendency of civil litigation with respect to the question of possession of parties. Receiver was directed to hand over possession to the party—Possession was handed over to a party other than the party from whom possession was taken; the other party applied for possession before the Sub-divisional Magistrate. The Magistrate, after verifying the relevant records and documents, rectified his earlier order and directed delivery of possession to such party. It was held that the order was proper and not an abuse of process of court— Interference under section 482 was not called for [Dhan Kaur v State of Rajasthan, (1989) Cr LJ (NOC) 109 : 1988 CrLR (Raj) 606 : 1988 (1) Raj LR 891: 1988 Raj LW 696 (Raj)]. [s 145.72] “Revision.”—

Page 44 of 45 [s 145] Procedure where dispute concerning land or water is likely to cause breach of peace.— A preliminary order passed under Ssction 145(1) is not an interlocutory order and hence revision lies [Jesmin Rehman v Afruza Begum, 2008 Cr LJ 892 (Gau)]. If on a proceeding initiated under section 145 of Code of Criminal Procedure, 1973 any order is passed by the Executive Magistrate, whether he is the Taluka Magistrate or the Sub-Divisional Executive Magistrate, the same could be testified only in revision before the High Court within the powers conferred on the jurisdiction of the High Court under sections 397, 401, 482, etc. of the Code and no other authority, much less the District Collector, who has been conferred with power to testify the validity of the order passed by the Executive Magistrate much less on appeal [K. Pounrajan v Collector Chennai District, 2004 Cr LJ 1465 : 2004 Mad LJ (Cri) 55 : 2004 (3) Rec Cr R 788 (Mad)]. The lower court found that none of the parties was in (exclusive) possession and that the property was joint family property in joint possession. There was no infirmity in the finding. The High Court would not interfere in revision [Bishnu Charan Naik v Harihar Sahu, (1984) Cr LJ 836 : (1984) 57 Cut LT 334 (Orissa)].

Order of attachment passed by the Executive Magistrate under section 146 pending proceedings under section 145 is an interlocutory order and thus the revision is not maintainable [Sultan Singh v State of Rajasthan, 2006 Cr LJ (NOC) 180 (Raj); Maan Babu Dubey v State of UP, 2006 Cr LJ (NOC) 431 (All) : 2006 (4) All LJ 781 : 2006 (2) All CrC 489].

When civil litigation between the parties was also pending regarding land in dispute, the proper cause for aggrieved party is to file his objection before Magistrate mentioning the fact of pendency of civil litigation, and the party aggrieved thereon may go in revision. Maan Babu Dubey v State of UP, 2006 Cr LJ (NOC) 431 (All) : 2006 (4) All LJ 781 : 2006 (2) All CrC 489. [s 145.73] “Forcible dispossession”.— If there is such dispossession, by a representation of promise and without using any force and without any intention of performing it, taking possession in such manner amounts to “Forcible dispossession” giving Magistrate power to put party into possession who is wrongfully dispossessed and is covered by the provisions of section 145 of Code of Criminal Procedure, 1973 [Shankar Lal v State of Madhya Pradesh and others, 1995 Cr LJ 70 MP (HC)]. [s 145.74] Claim for the restoration of possession.— Where the suit was instituted for eviction under Code of Civil Procedure, 1908 or setting up the title under Specific Relief Act, it does not bar party to claim possession forcibly dispossessed under section 145 as for alternative remedy [Shankar Lal v State of Madhya Pradesh, 1995 Cr LJ 70 M.P. (HC)]. [s 145.75] Notice.— Initiation of proceedings under section 145 of Code of Criminal Procedure, 1973 without notice to parties is arbitrary and abuse of process of the court. [Sukhdev Singh v SDM Sirsa, 1997 Cr LJ 1326 : 1996 (3) Rec Cr R 349 : 1996 Cr LT 225 : 1996 (3) Chand Cr C 398 (P&H)]. [s 145.76] Dropping of proceedings.— Magistrate should not drop the proceedings during the pendency of the matter before consolidation authorities [Rajendra Pratap Singh v District and Sessions Judge, 1996 Cr LJ 698-699 : 1996 All LJ 320 (All)].

Writ petition against order dropping proceedings and release of property is not maintainable under Article 227. The remedy as to file criminal revision [Narendra Singh v Additional SDM, 2004 Cr LJ 751 : (2003) 52 All LR 674 : 2003 (10) All Ind Cas 678 : 2004 (2) Rec Cr R 919 (Uttr)]. [s 145.77] Dropping of proceedings under section 145 of Code of Criminal Procedure, 1973 without opportunity to other party.— The procedure and the manner contemplated in section 145(4) of the Code for deciding whether and which of the parties was at the time of passing the preliminary order had been, completely violated in passing the order for dropping the proceedings under section 145 of Code of Criminal Procedure, 1973 and was passed in clear violation of the principles of natural justice and also was passed only on the basis of the claim of the opposite party without giving opportunity to the petitioner to put up his case as to the correctness or otherwise of the police report, and as a result, great injustice was caused to the petitioner. The matter was remanded for de novo trial [Rajani Goswami v Anil Chandra Haloi, 2009 Cr LJ 4538 (4542)].

Page 45 of 45 [s 145] Procedure where dispute concerning land or water is likely to cause breach of peace.—

The Magistrate passed an order to the effect that for the ends of justice the proceeding under section 145 the Code is dropped and also that the attachment of the disputed land is lifted. The proceedings were dropped even without written statement filed by the respondent and also without calling police report from the concerned police station. The Magistrate cannot take the decision on surmise and conjecture inasmuch as there was no material for changing his satisfaction as to the fulfillment of the requirements for passing the preliminary order under section 145(1) of the Code. Accordingly, the Magistrate’s order was set aside [Prabin Ch. Das v Ashim Gosal, 2011 Cr LJ (NOC) 371 (Gau) : 2011 (1) GLT 347]. [s 145.78] Ouster of jurisdiction under special and local laws.— In this case, proceeding of Bataidari under section 48(1)(E) of the Bihar Tenancy Act was over and there was no pending proceeding. Therefore, proviso of section 48E (13) is not attracted. In view of the main provision in section 48(13) of the said Act, jurisdiction of Criminal Court cannot be exercised in view of the express ouster. Accordingly, the proceedings under section 145 of Code of Criminal Procedure, 1973 were quashed [Bharat Prasad v State of Bihar, AIR 2009 SC 2827 : (2009) 6 SCC 698]. [s 145.79] Alternative remedy.— Where statutory remedy, for example, under Uttar Pradesh Consolidation of Holdings Act is available, the High Court would not interfere in the writ petition [Krishna Gopal v Dilip Singh, 2004 (2) Crimes 209 (All)]. End of Document

[s 146] Power to attach subject of dispute and to appoint receiver.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER X MAINTENANCE OF PUBLIC ORDER AND TRANQUILLITY > D.—Disputes as to Immovable Property

The Code of Criminal Procedure, 1973 CHAPTER X MAINTENANCE OF PUBLIC ORDER AND TRANQUILLITY Provisions of four chapters of the old Code, namely chapters 9, 10, 11 and 12 have been incorporated in this one chapter 10 divided into four parts—Pt A (Unlawful Assemblies—sections 129 to 132), Pt B (Public Nuisance— sections 133 to 143), Pt C (Urgent cases of Nuisance and Apprehended Danger—section 144), Pt D (Disputes as to Immovable Property—sections 145 to 148).

D.—Disputes as to Immovable Property [s 146] Power to attach subject of dispute and to appoint receiver.— (1) If the Magistrate at any time after making the order under sub-section (1) of section 145 considers the case to be one of emergency, or if he decides that none of the parties was then in such possession as is referred to in section 145, or if he is unable to satisfy himself as to which of them was then in such possession of the subject of dispute, he may attach the subject of dispute until a competent court has determined the rights of the parties thereto with regard to the person entitled to the possession thereof : Provided that such Magistrate may withdraw the attachment at any time if he is satisfied that there is no longer any likelihood of breach of the peace with regard to the subject of dispute. (2) When the Magistrate attaches the subject of dispute, he may, if no receiver in relation to such subject of dispute has been appointed by any Civil Court, make such arrangements as he considers proper for looking after the property or if he thinks fit, appoint a receiver thereof, who shall have, subject to the control of the Magistrate, all the powers of a receiver appointed under the Code of Civil Procedure, 1908 (5 of 1908) : Provided that in the event of a receiver being subsequently appointed in relation to the subject of dispute by any Civil Court, the Magistrate— (a) shall order the receiver appointed by him to hand over the possession of the subject of dispute to the receiver appointed by the Civil Court and shall thereafter discharge the receiver appointed by him; (b) may make such other incidental or consequential orders as may be just. [s 146.1] Changes.— (1) Sub-section (1) has been substituted for old sub-section (1). As the revised procedure introduced by 1955 amendment [see old sub-sections (1A) to (1E) did not work satisfactorily, restoration to former procedure with some alterations has been made.

Page 2 of 12 [s 146] Power to attach subject of dispute and to appoint receiver.— (2) Sub-section (2) has also been substituted for old sub-section (2).

The highlights of the present section are:

(1) The Magistrate may attach the subject of dispute—

(a) at any time after making an order under section 145 (1), if he considers the case to be one of emergency; or (b) after making enquiry, if he decides that none of the parties was in such possession as is referred to in section 145 or he is unable to decide himself which of them was in such possession.

(2) The Magistrate can withdraw the said attachment at any time, if he finds that there in no likelihood of breach of the peace [proviso to sub-section (1)].

(3) Attachment if not withdrawn would continue until a competent court determines the rights of the parties as to the person entitled to possession.

(4) Where no receiver has been appointed by any Civil Court, the Magistrate may make arrangement to look after the property or appoint a receiver.

(5) If subsequently a receiver is appointed by any Civil Court, the Magistrate shall order the receiver appointed by him to hand over the subject of dispute to the receiver appointed by Civil Court and discharge him. [s 146.2] Scope and application of section 146.— This section is really a part of section 145 under which a Magistrate declares the possession of a party who is found to be in actual possession or entitled to be in possession. It deals with the Magistrate’s power to attach the subject of dispute and to appoint a receiver in a proceeding under section 145. This power can be exercised in the following circumstances, viz. (i) at any time after making the preliminary order under section 145(1) when the Magistrate considers the case to be one of emergency in order to prevent the danger of breach of peace, and (ii) after the inquiry under section 145(4) when the Magistrate, due to paucity or unreliability of evidence, is unable to decide who among the parties was in actual possession as referred to in section 145 or decides that none of the parties was in such actual possession. This situation is anticipated in section 145(4) where the Magistrate is directed to come to a decision as to possession “if possible”. The Magistrate may however withdraw the attachment at any time if he is satisfied that there is no longer any danger of breach of the peace [Proviso to sub-section (1)].

Sections 145 and 146 constitute a single scheme [Mathuralal v Bhanwarlal, AIR 1980 SC 242 : 1980 Cr LJ : (1979) 4 SCC 665].

Object of section 146 is to keep the property in custodia legis so as to prevent breach of peace by disputant parties trying to take possession [Chandrasekhar Singh v Siya Ram Singh, AIR 1979 SC 1 : 1979 Cr LJ 13 : (1979) 3 SCC 118].

Where there was no allegation that there was any possibility of any dispute which may cause breach of peace, action initiated under section 145(1) of Code of Criminal Procedure, 1973 was held not proper [Omendra Singh v State of UP, 2010 Cr LJ (NOC) 286 (All)].

Page 3 of 12 [s 146] Power to attach subject of dispute and to appoint receiver.— There can be no order under section 146 without a proceeding under section 145 [Nilkanth, ALR 1923 N 297]. When parties do not appear at the time of inquiry under section 145, the court is unable to come to a decision as to possession and it can attach the subject of dispute. Attachment under sub-section (1) is permissible only when the Magistrate, (i) considers the case to be one of emergency or (ii) is unable to decide the question of possession after the inquiry prescribed in section 145 but not when there is a definite conclusion as to possession [Ram Naresh v Emperor, AIR 1949 All 97 : (1948) 49 Cr LJ 751 : 1948 All WR 196] or in effect such a finding, e.g. that both parties were in possession—each of different portions of land [see Rajendra, 9 Cal WN 887]. Section 146 cannot be invoked when the Magistrate’s finding is that both parties are in possession. The proper order is under section 107 [Sudamawati Kuer v Ram Chandra Singh, AIR 1963 Pat 320 : 1963 (2) Cr LJ 313 : 1963 BLJR 665; Venkataraman, AIR 1930 B 172].

The legality of an order under section 146 depends upon its being preceded by proceedings under section 145; when failure to comply with the requirements of section 145(4) makes the proceedings illegal, an order under section 146 cannot stand on a better footing [Subbarama, 15 Cr LJ 559].

The ingredients necessary for passing an order under section 145(1) of the Code would not automatically attract for the attachment of the property. Under section 146, a Magistrate has to satisfy himself as to whether emergency exists before he passes an order of attachment. A case of emergency, as contemplated under section 146 of the Code, has to be distinguished from a mere case of apprehension of breach of the peace. The Magistrate, before passing an order under section 146, must explain the circumstances why he thinks it to be a case of emergency. In other words, to infer a situation of emergency, there must be a material on record before the Magistrate [Ashok Kumar v State of Uttarakhand, (2013) 3 SCC 366 : 2012 (12) Scale 338].

Section 146 does not apply to proceedings under section 147 in which there can be no attachment or receiver [Rohm Baksha, 1949 (1) Cal 374; see Chandra Ballabh v Emperor, AIR 1948 All 105 : (1948) 49 Cr LJ 48 (2) : 1947 All LJ 532 : ILR 1947 All 746]. In a dispute regarding use of rain water from a field, the Magistrate should, instead of attachment, act under section 147 Chelliah, AIR 1942 Mad 77 : 1941 54 LW 314 : (1941) 2 Mad LJ 375 : 1942 MWN 424].

The provisions of emergency attachment as envisaged under section 146 of Code of Criminal Procedure, 1973 may be invoked only in cases where the Magistrate records satisfaction that, but for the attachment of the disputed property, the breach of peace is imminent. On the facts of the present case, it sounds too high to expect that in a proceeding under section 145 of Code of Criminal Procedure, 1973 the attachment should be directed now [Jawahar Lal v Awadh Bihari, 1990 Cr LJ 2738 : 1990 All Cr C 394 : 1990 All WC 675 (All) (Palok Basu, J.)].

In a dispute about immovable property, the court must be satisfied that there is emergency for attachment— Property cannot be attached only on the ground that the court could not ascertain possession, after local inspection [Sushma Ravi Das v Ashutosh Das, 1990 Cr LJ NOC 157 : 1990 (2) Gau Lr 215 (Gau) (SN Phukan, J.)].

In an emergency, the Magistrate may attach the land in order to prevent a breach of peace [Bande Ali, AIR 1940 Cal 163; Prem, 34 Cr LJ 342], but an order that neither party shall work in the land is incorrect [Mg Po, AIR 1925 R 111; see U Pyinna, AIR 1931 R 51ante]. Order to police to attach if there is any apprehension of breach of the peace is not legal. The power cannot be delegated [Basdeo v Badri Narain, AIR 1952 All 186 : 1952 Cr LJ 379 : 1951 All WR 113; Vidya Ram v Ganga Sahai, AIR 1953 All 455 : 1953 Cr LJ 1009 : 1952 All LJ 221].

Where attachment order under section 146(1) of Code of Criminal Procedure, 1973 is withdrawn on the ground of pendency of civil litigation, consequential order as to delivery of possession from whom the possession was taken should also necessarily be passed [Virendra Kumar v State of UP, 2003 (3) Crimes 135 : 2003 Cr LJ 2709 (2712) (All) : 2003 AIHC 2685].

Page 4 of 12 [s 146] Power to attach subject of dispute and to appoint receiver.— [s 146.3] “Case to be one of emergency.”— A case for emergency contemplated under section 146 has to be distinguished from a mere case of apprehension of breach of peace. The order must indicate the circumstance why the Magistrate thought it to be a case of emergency, else such order cannot be sustained [Amrit Singh v Gyandeo Sharma, 1978 Cr LJ 671 : 1977 BBCJ 658 (Pat)]. To make out a case for emergency, there must be some material before the Magistrate on the record from the statement of parties, documents produced or evidence adduced and not upon the personal impressions of the Magistrate [Laxman Bhikaji Powar v Bahimkhasn Balekhan Dalwai, 1976 Cr LJ 1492 (Bom)]. The case of emergency contemplated under section 146 has to be distinguished from a case of apprehension of breach of peace. To infer a situation of emergency, there must be some material before the Magistrate on the record from the submission of the parties, documents produced or evidence adduced and not upon the personal impression of the Magistrate. Such circumstances may be inferred from the report submitted by any independent agency like the police [Ramjee Singh v State, 2007 Cr LJ 3079 (Jhar) : 2007 (2) AIR Jhar R 528].

In the instant case, the earlier order of attachment passed by him was virtually vacated by the order of the High Court. It was held that the fresh order passed by SDM was not justified and the same was illegal and perpetrated injustice since it was an abuse of the process of the court [Ramjee Singh v State, 2007 Cr LJ 3079 (Jhar) : 2007 (2) AIR Jhar R 528].

Opportunity of being heard and prior notice to parties are not pre-requisite for valid attachment for emergency [Radhakrishna Chattoraj v Sudhir Chandra Mondal, 1978 Cr LJ (NOC) 165 (Cal); Ramprakash, 1978 Kash LJ 75].

Where the police report stated that both the parties were desperate and dangerous in nature and that there was even bloodshed over the issue, the Magistrate’s order that there was no immediate apprehension of serious breach of peace must be set aside [SK Daman Mistry v Moharrum Mistry, 1984 Cr LJ (NOC) 99 : (1984) 88 Cal WN 629 (Cal)].

Opposite party does not deserve to be heard before the passing of order in case of emergency [Tulsi Devi v Bhagat Ram, 1983 Cr LJ 72 : 1983 (1) Chand LR (Cri) 480 : ILR (1982) HP 478 (HP)].

Order of attachment and appointment of receiver without assigning any reason of emergency is valid [B Dasso Patro v B Tariniga Patro, 1983 Cr LJ 121 : (1982) 54 Cut LT 451 (Ori)]. [s 146.4] Inquiry.— Before passing an order under section 146, the Magistrate must—

(a) hold an inquiry; (b) decide who is prima facie in possession and make an assessment of the emergency [CKP Memmon v KP Sulaiman, 2000 Cr LJ 221, 222 para 4 (Mad)]. Order of attachment passed just on the alleged basis that there was tension and possibility of breach of peace is not proper [Brij Ratan v State, 2002 Cr LJ 4172 : 2002 (2) Raj Cr C 1060 : 2002 (3) WLC 633 (Raj)]. [s 146.5] “Then in such possession as is referred to in section 145”.— The expression makes it clear that not only in actual possession at the date of the preliminary order under section 145(1) but also being treated as if in such possession by reason of the proviso to section 145(4). [s 146.6] “Unable to satisfy himself as to which of them was then in such possession”.— The attachment is as the result of enquiry. When the Magistrate is unable to determine who is in actual possession, see ante : “If Possible Decide who was in Possession” under section 145. The Magistrate must make an attempt to discuss evidence to find out which party was in possession [Shreedhar Thakur v Kesho Sao, AIR 1962 Pat 468 : 1962 (2) Cr LJ 770 : 1962 BLJR 267]. Inability to decide the question of possession confers jurisdiction on the Magistrate to pass an order under section 146. The inability must be to decide on the fact of actual possession and not on the rights of the parties [Somnath, 6 Bom LR 723; Saganbasava, 7 Bom

Page 5 of 12 [s 146] Power to attach subject of dispute and to appoint receiver.— LR 18]. There must be an express finding to that effect [Jan Md., 29 Cr LJ 861]. But he must be unable to decide after the proper inquiry prescribed in section 145(4) and hearing the parties [Inayatullah, 15 Cr LJ 470; Parasuram, AIR 1922 P 554; Shk. Mansur, 12 Cal WN 896; Dyawappa, 17 Bom LR 382; Sitanath, AIR 1922 C 280; Nilkanth, 24 Cr LJ 880; Radharaman, AIR 1936 All 177 : (1936) AWR 125 : 160 Ind. Cas. 20].

An order under section 146 after drawing up proceeding under section 145 without taking evidence [Daulat Ali, 32 Cal WN 843], or because the parties did not appear [Parasuram, 23 Cr LJ 277], or on the allegations in the written statements alone [Palani, AIR 1922 Mad 437] is illegal. A reasonable effort must be made to decide the question as to possession by taking evidence and local inspection [Sheobalak, 40 C 105; see Wayesul, AIR 1924 Pat 47; Radharaman, AIR 1936 A ll177; Ayodhya Nath v Ganga Prasad, AIR 1953 All 751 : 1953 Cr LJ 1717 : 1953 All LJ 418; Sri Chand v Dhundi Ram Mathuri, AIR 1955 All 56 : 1955 Cr LJ 178 : 1954 All LJ 595 : 1954 All WR 459] without taking to the easy way of applying section 146 [Parmeshwar, 1952 A 918]. When no real effort is made to find out who was in possession, order of attachment is liable to be set aside [Lakshmi Narain, 1953 BLJR 68]. When the land was admittedly in possession of a party, it is improper to say that the court was unable to satisfy as to possession [Sri Chand v Dhundi Ram Mathuri, AIR 1955 All 56 : 1955 Cr LJ 178 : 1954 All LJ 595 : 1954 All WR 459]. A Magistrate should be extremely reluctant to attach in the case of land which is cultivated year after year. It is his duty to collect and sift information and to decide the fact of possession [Ram Bahal, AIR 1924 Pat 804 : 82 Ind. Cas. 367]. The evidence ought to be discussed and reasons given for inability [Khedan, AIR1921 Pat 166 : Ajodhya Nath v Ganga Prasad, AIR 1953 All 751 : 1953 Cr LJ 1717 : 1953 All LJ 418]. To say generally that the evidence is unreliable without referring to it or giving reasons is a refusal of jurisdiction [Lakhpat, AIR 1923 P 588; Lachmi, AIR 1921 P 173; Kailash, 21 Cr LJ 601; Munie Ahmad, 1938 OWN 673].

Merely to say it is “very doubtful” if any one had been in possession, or that “I am unable to satisfy myself” as to which of the parties was in possession without considering the ample evidence on record fairly and judicially is to deny jurisdiction [Ambika, 23 Cal WN 910; Miya Khan, 1939 Nag LJ 213]. The doubt under the section must be the result of inability to decide upon the evidence offered and not a doubt entertained without receiving and considering evidence [Leelanand, 1 CLR 273; Khodan, 22 Cr LJ 323]. Order under section 146 cannot be justified when proper evidence was rejected [Prafulla, 21 Cal WN 1089; Sitanath, AIR 1922 Cal 280 : 69 Ind. Cas. 272], or where no time was granted for production of evidence [Shk. Mansur, 12 Cal WN 896].

Attachment without preliminary order is invalid [Manika Sahu v Dandapani Sahu, 1986 Cr LJ 287 : (1985) 60 Cut LT 558 : 1985 (2) Ori Lr 437 (Ori); Indira v Vasantha, 1991 Cr LJ 1798 Mad : 1990 TLNJ (Cri) 66].

In a case, the Magistrate was unable to decide himself as to who was in possession of disputed premises and, therefore, the Magistrate passed an order attaching properties and directed the parties to go to the Civil Court. The Supreme Court did not interfere with the order, but gave certain directions [Badri Bakash Soni v Prahalad Soni, 1994 Supp (3) SCC 469]. [s 146.7] Determining possession.— When the Civil Court has determined possession, it is not proper to attach on the ground of inability to determine it [Paramhans, 48 A 397; Chinnamma, AIR 1944 Mad 472]. An order is bad when the Magistrate fails to decide that neither party is in possession nor he cannot satisfy himself as to who is in possession [Nathu, 15 AJ 270; Bharosa, 1951 AWR (HC) 1507]. When the parties fail to adduce evidence even though sufficient time was given, attachment can be made [Bejoy, 14 Cal WN 80; Bengali, AIR 1930 Pat 29].

If a Magistrate is unable to decide as to the possession of a part of the property, he will proceed under section 146 in respect of that part only declaring possession of the remainder [Upendra, 20 Cr LJ 17; see Sadar Ali, 5 Cal WN 710, post]. The power of attachment is conferred on the Magistrate. The Sessions Judge cannot interfere [Hurronath, 15 WR 1]. [s 146.8] Attachment of property.— Section 146 contemplates passing of an order under the said provision for attachment of the property in dispute after being satisfied that the case was one of emergency. The Magistrate has to decide that none of the parties was in possession or that he was unable to decide himself as to which of the parties was in possession of the

Page 6 of 12 [s 146] Power to attach subject of dispute and to appoint receiver.— disputed property. He should also call upon the parties to file their written statements. Unless this procedure is followed, the order of the Magistrate is not sustainable [Ratnam v SDO, 2001 Cr LJ 2755 : 2000 (1) Andh LT (Cri) 482 (AP)]. “At any time”, i.e. after the preliminary order on institution of proceeding and not without it [Jamuna, AIR 1921 P 353; State v Mukanda Singh, AIR 1951 All 621 : (1951) 52 Cr LJ 893; Sri Ram v State, AIR 1958 Punj 47 : 1958 Cr LJ 215 : 59 Punj LR 422] or before it [Faizur, 42 Cal WN 351; Kamal Magray v Ghulam Mohammad Wani, AIR 1961 J&K 4 : 1961 (1) Cr LJ 62; Kartar Singh Narain Singh v Lallusingh Padamsingh, AIR 1962 MP 104 : 1962 (1) Cr LJ 437 (1) : 1961 MPLJ 1241 : 1961 Jab LJ 465]. Attachment order can be made along with preliminary order without it being first served on parties [Mahant Bhagwandas v Suggan, AIR 1965 Raj 143 : 1965 (2) Cr LJ 242 : 1965 Raj LW 1; VK. Rao, 79 Bom LR 16; MA Rahaman v State of AP, 1981 Cr LJ 1291 : 1981 (2) Andh LT 220 : 1981 (2) APLJ 144 (AP); Kshirod Kumar Das v Kanheya Das, 1981 Cr LJ (NOC) 116 : (1981) 51 Cut LT 432 (Ori)].

Attachment order cannot be made simultaneously with the making of the preliminary order under section 145(1) [Laxman Bhikaji Pawar v Bahimkhan Balekhan Dalwai, 1976 Cr LJ 1492 (Bom); Harekurshna, 1976 BLJR 302]. A single order recording preliminary order under section 145(1) and attachment order under section 146(1) is not legal [Lilly, 1977 Ker LT 871]. Non-recording of two such separate orders would at the most amount to an irregularity curable under section 465 [Syed Ahmed v Rais Ahmad, 1977 Cr LJ 450 : 1976 All CR C 302 : 1976 All WC 588 (All)]. Attachment after recording an order but before drawing up of formal proceeding was held to be an irregularity [Nand Kishore, AIR 1943 P 124]. Attachment before starting proceeding under section 145 is without jurisdiction [Atar Khan v The State, AIR 1960 Ass 109 : 1960 Cr LJ 891]. An order for attachment, passed simultaneously after the preliminary order, is not illegal [Ram Prasad v State of Rajasthan, 1984 Cr LJ (NOC) 130 : 1983 Raj LR 751 : 1983 WLN 430 (Raj)].

Attachment may be in any of the modes is section 83 [Gopala, 21 Cr LJ 73; Prem, AIR 1933 L 409]. Mere order of attachment on the order sheet is not sufficient. The land must be taken in possession of either by taking actual possession or at least by making an explicit order prohibiting the parties from going upon the land [Kailash Singh v Mahabir Pandey, AIR 1973 Pat 444 : 1973 Cr LJ 1667]. The purpose of attachment is quite different from a Civil Court attachment [Nand Kishore, sup].

Where emergency situation does not exist, the order of attachment of immovable, property shall be set aside [Darog Ali v Nelgian Nersa, 2003 Cr LJ (NOC) 105 (Gau) : 2003 (1) Gau LR 651].

Attachment is not an order respecting possession. It does not maintain the possession of any party [Ranchod, 1897 AWN 214], but brings the property in the control of the court. Attachment order cannot be made ex parte [Lachmi, 19 Cr LJ 225]. Form of attachment (Sch 2 No. 26].

No order of attachment can be passed in respect of entire property, when dispute relates to a part of the property [Madhuri Sahu v Suresware Sahu, 2004 Cr LJ 3289 (3292) : 2004 (28) OCR 141].

Not only parties to the proceedings but every person claiming any right to possession in respect of property under attachment is bound by orders of attachment [K. Pawan v Special Executive Magistrate, Office of Collector, 2003 Cr LJ NOC 17 : 2001 (6) Andh LT 617 : 2002 (1) Andh LD (Cri) 325 : 2002 (2) Rent LR 31 : 2002 (1) Cur LR 465 (AP)].

Serious dispute regarding possession and right to possess was going on between the parties for the property in question. In the order reasons as to why such apprehension of breach of peace was continuing. The report of the officer-in-charge of police station is evident that in spite of different proceedings between the parties as well as against the petitioners initiated by the administration there was imminent apprehension of breach of peace. There were attempts for possession of the property, in question. It was held that attachment of property under section 146(1) of Code of Criminal Procedure, 1973 was proper [Kalpana Devi v State of Jharkhand, 2008 Cr LJ 4667 (4668) (Jhar) : 2008 (3) AIR Jhar R 481]. [s 146.9] “Subject of dispute”.—

Page 7 of 12 [s 146] Power to attach subject of dispute and to appoint receiver.— may refer to the whole or to any component part or parts of the property in dispute. If possession cannot be determined in respect of a part which is distinct, that part only can be attached. But if the property is indivisible there must be one order either under section 145 or section 146 as the circumstances may require [Sadar Ali, 5 Cal WN 710]. Attachment is within jurisdiction when both parties were in possession of land, but neither was in exclusive possession [Alagirisami Naidu v Chinna Veerammal, AIR 1949 Mad 461 : (1949) 50 Cr LJ 659 : 1948 (2) Mad LJ 642; see Chirajit, sup]. Undivided share in a village cannot be attached [Muthuswami, AIR 1941 M 744]. Attachment in joint Hindu family dispute is not proper [Venkatraman, AIR 1930 B 172]. When co-owners fight for exclusive possession, it is a case for attachment [Chiranjit, AIR 1932 A 683]. The attachment is to be of immovable property [Ramzan, 30 C 110; Chaurasi, 28 A 266].

There can be no attachment of anything other than “land” [Gajraj, AIR 1922 A 528]. Movables cannot be attached [Gopala, 21 Cr LJ 73; Arjun, AIR 1921 O 6 : Mahmood, AIR 1941 O 515], but where the dispute relates not to the building merely but also the property inside, machinery, etc, all can be attached [Prem, AIR 1933 L 409; Rambehari, 16 Cr LJ 224; Narsingh Padam Saran Shah v Suraj Kishore Devi, AIR 1951 All 826 : 1951 Cr LJ 1501 : 1951 All LJ 714]. When a house is attached neither party can enter into to remove movable property without a court’s order [Niranjan, AIR 1936 A 141]. Movables cannot be attached but when a muth is attached, jewellery and other movables in it must be treated as appurtenant to it [Gokul, AIR 1927 A 125]. Mere attachment without prohibiting entry upon land is not enough [Atar Khan v The State, AIR 1960 Ass 109 : 1960 Cr LJ 891]. Orders by the Magistrate in charge of the attached property are administrative [Zamindar of Devarakota v Kolli Ramaswamy, AIR 1948 Mad 234 : (1948) 49 Cr LJ 456 : 60 Mad LW 748 : 1947 (2) Mad LJ 459— CONTRA : Jethmul Bhojraj v Harbans Narain Singh, AIR 1955 Pat 92 : 1955 Cr LJ 387 : 1954 BLJR 407; MC Chikka Ramaiah v Appaiah, AIR 1959 Mys 50 : 1959 Cr LJ 340 : 1958 Mad LJ (Cri) 338 : ILR (1958) Mys 151].

If after attachment the land is subsequently released in favour of the plaintiffs in whose favour the case terminated, they cannot sue the other party for damages for being unable to cultivate during the attachment, because the loss suffered might be attributed to the order of the Magistrate [Durvijay, AIR 1956 All 119 : (1955) 25 AWR 709; Minakumari, 14 Cal WN 96].

If the order is cancelled, Magistrate has no jurisdiction to direct delivery of the attached property to one of the parties [Chenga, 16 Cr LJ 104]. Entering upon attached land is not offence under section 188 of Indian Penal Code, 1860 [Dibakar Talukdar v State, AIR 1961 Assam 94 : 1961 (2) Cr LJ 64]. There can be no attachment when the disputed land is a public path [Sasimohan, 22 Cr LJ (C) 464]. In a dispute as to easement, it is proper to deal under section 147 instead of attachment under section 146 [Chelliah, AIR 1942 Mad 77 : 1941 54 LW 314 : (1941) 2 Mad LJ 375 : 1942 MWN 424].

Attachment binds third parties who if aggrieved may apply for withdrawal of it or may bring a civil suit [Madhorao, AIR 1943 Ngp 246]. Attachment does not affect the legal rights of the parties and the property is held for the person ultimately shown to be entitled to possession [Venkatagiri, 26 M 410; Shyamacharan, 15 Cal WN 163; Beni Pd, 32 C 856; Brajendra, 20 Cal WN 481; Pannalal, 49 C 544]. Attachment interrupts the possession of the wrongdoer who was in possession, but not that of the true owner if he was in possession [Sarat, AIR 1921 Cal 584 : 66 Ind. Cas. 433]. The Magistrate can manage the attached property and lease it out [Lokenath, 29 C 382]. Section 146(1) makes it clear that property can be attached in any of the following three situations: (1) if there is emergency to attach the property, (2) if the Magistrate decides that none of the parties was in possession on the date of the preliminary order under section 145(1) and (3) if the Magistrate is unable to satisfy himself as to which of the parties was in possession of the subject of dispute on the date of the preliminary order. In the first situation, i.e., in case of emergency, attachment can be ordered at once without going into merits of the claims of the parties regarding possession. The remaining two situations will arise only after the parties have been given opportunity of leading evidence and of being heard. Where the applicant alleges that he was in possession of the property as a tenant and the dispute as to possession of the property was likely to cause breach of peace, the order of the Magistrate ordering attachment of the property under section 146(1), on the ground that he was unable to decide as to which of the parties was in possession without going into the evidence and hearing the parties and even without notice to the other party, is illegal [Anand Ram Nanda v State, (1986) Cr LJ 2008 Del : 1986 (1) Crimes 143 : 1986 Chand Cr C 4 : 1986 (1) All CrLR 138].

Page 8 of 12 [s 146] Power to attach subject of dispute and to appoint receiver.— Composite order under section 145 (1) and section 146 (1) is valid [Nachhattar Singh v Gurinder Singh, 1983 Cr LJ 718 : (1983) 85 Punj LR 381 : 1983 (2) Chand LR (Cri) 125 (P&H)].

Since attachment of property has the effect of causing serious inconvenience and prejudice to at least one of the parties, such emergency measures should be taken only in exceptional cases and an attachment should not almost as a rule follow an order under sub-section (1) of section 146 of Code of Criminal Procedure, 1973. Ordinarily an order of attachment should be made after hearing the parties to be affected by the order of attachment and only in rare and exceptional circumstances the Magistrate should pass an ex parte order of attachment after already indicating how, in the interest of maintenance of peace, an ex parte order of attachment was necessary and when insistence of proper service of notice to the parties may be dispensed with. It may be noted that the existence of the ingredients necessary for passing an order under section 145(1) of Code of Criminal Procedure, 1973 would not automatically attract the provisions of section 146(1) for attachment of property. Therefore, the Magistrate must satisfy himself as to whether emergency exists in spite of the order under section 145(1) of the Code before he passes an order of attachment under section 146 of the Code. The word “emergency” mentioned in section 146(1) of the Code contemplates the situation completely different from one in which there is apprehension of breach of the peace, which is one of the basic legal necessities for initiating a proceeding under section 145 of the Code. The fact that ordinarily the situation has arisen is not enough. Mechanical reproduction of certain terms as used in the statute cannot justify a finding unless there are materials in support of it. The Magistrate must give reasons as to why he thought it necessary to pass the order of attachment on the ground of emergency. However, even though the order of attachment does not contain reasons, or is not explicit enough if there are materials on record on which the Magistrate was satisfied about emergency, the order would not be struck down [Md. Shafique Ali v Surjan Bibi, 2004 Cr LJ 1183 : 2004 (2) Gau LT 207 (Gau)].

Opportunity of being heard and prior notice to parties are not prerequisites for valid attachment in case of emergency [Ganpat Singh v State, 1995 Cr LJ 616 Rajasthan (HC)].

But where the Magistrate was already seized with matters in proceeding under section 144, using order of attachment without hearing the party would violate principles of natural justice [Md. Shafiq Ali v Surjan Bibi, 2004 Cr LJ 1183 : 2004 (2) Gau LR 207 (Gau)].

Once an order has been passed by SDM under section 145 of Code of Criminal Procedure, 1973 directing attachment of a property, which was subsequently withdrawn under section 146 of the Code, there is absolutely no bar for the Sub-divisional Magistrate to pass a fresh order of attachment, if it is so justified in order to prevent the breach of peace at a later stage [Buddhi v Gyana, 1996 Cr LJ 616 at p 618, (Raj)].

An order passed by Executive Magistrate attaching property in dispute is an interlocutory order and it is not amenable to revisional jurisdiction [Shameel v Muhammed Ansari, ILR 2014 (4) Kerala 427 : 2014 (4) Ker LT 53 (Ker)].

The order of Magistrate by which he withdrew the attachment and directed the release of the disputed land had purportedly been passed in exercise of his power under section 146 of Code of Criminal Procedure, 1973. The order of the Magistrate was held not appealable under section 454 of the Code. [Ram Lakhan v State of UP, 2003 Cr LJ 3172 : 2003 All LJ 1591 : 2003 (1) All Cr R 409 : 2003 (1) All CJ 389 (All)]. [s 146.10] Duration of attachment.— Possession of court during attachment in case of emergency before inquiry enures for the benefit of the party in whose favour it is declared [Abinash, 30 Cal WN 541]. It cannot subsist after possession has been found in favour of a party [Bindhyachal, AIR 1946 Pat 330].

Attachment comes to an end automatically when a “competent Court” has determined the rights of the parties [Radharaman, AIR 1936 All 177] even though the decision was not inter partes [Asesh, AIR 1924 C 812 : 25 Cr LJ 937]. Also it is not necessary that the decree should be in favour of all the parties [Vithoba, 17 Cr LJ 331].

Page 9 of 12 [s 146] Power to attach subject of dispute and to appoint receiver.— The attachment must be released after a competent court determines the rights of parties [Venkatagiri, 15 Cr LJ 481; Ambler, 37 C 331]. The property being in custodia legis, no party is under any obligation to bring a suit for recovery of possession [Deo Kuer v Sheo Prasad Singh, AIR 1966 SC 359 (SC) : 1966 MPLJ 56 : 1966 MhLJ 120 : [1965] 3 SCR 655; Alagaswami, AIR 1929 Mad 38]. The Magistrate will give effect to any adjudication establishing the right of a party against the other party [Alagaswami, sup]. If however, the Criminal Court is out of possession after the Civil Court decision, it cannot use its judicial process to recover possession in order to hand it over to the successful party [Madhorao, AIR 1943 Nag 246].

Attachment cannot be continued merely because an appeal by the losing party is pending against the Civil Court’s decision [Ran Sri, 46 A 879; Md. Ashraf, AIR 1942 Presh 11; Abdul Aziz, 19 Cr LJ 261; Mg Tha, 15 Cr LJ 500]. Profits follow the property from which they were derived [Avadh, 1893 AWN 100; Mohar, 12 Cr LJ 403]. [s 146.11] Until a competent court.... Possession thereof.— Under the old Code two kinds of attachment, viz. attachment in case of emergency before the enquiry under section 145(4) and attachment after the said inquiry in cases of doubt as to which party was in possession or decision that none of the parties was in such possession, were separately provided for in two separate provisions: the first one in third proviso to old section 145(4) and the second proviso in section 146. The first kind of attachment in case of emergency had a qualifying clause “pending his own decision in the case” meaning thereby clearly that this attachment should remain in force until the Magistrate’s own decision in the inquiry. Now under the new Code both the said two kinds of attachments have been incorporated in the provision in section 146. As a consequence, matters consequential to attachment, namely appointment of receiver with the powers of receiver of Code of Civil Procedure, 1908 which were expressly provided for in cases of attachment under section 146 after inquiry and which were absent in case of emergency have also been provided for in case of emergency attachment. But because of the new section 146 as has been drafted with the clause “until a competent court has determined the rights of the parties thereto with regard to the person entitled to the possession thereof” governing both kinds of attachment, there has been divergence of opinion amongst different High Courts as to interpretation of section 146 (1). Based upon literal construction of the section, it has been held in the following decisions that once the Magistrate attaches the subject matter of dispute in case of emergency, the proceedings under section 145 will terminate and the Magistrate ceases to have jurisdiction, and the attachment will continue till the matter is decided by a competent court [Chandi Prasad v Om Prakash Kanodia, 1976 Cr LJ 209 : 1976 All LJ 211 : 1975 All Cr C 285 (All); Sagar Bhattacharyya v Chhayarani Sarkar, 1978 Cr LJ 1164 : 1978 Cal HN 584 (Cal); Hakim Singh v Girwar Singh, 1976 Cr LJ 1915 : 1975 Rajdhani LR 507 (Del); Dandapani Pala v Madan Mohan Pala, 1976 Cr LJ 2014 : 42 Cut LT 836 : 1975 Cut LR (Cri) 305 (Ori); Damodar Das Babaji v Harihar Nahak, 1977 Cr LJ 1392 : 1976 Cut LR (Cri) 470 (Ori); Md. Muslehuddin v Md. Salahuddin, 1976 Cr LJ 1150 : 1975 Pat LJR 514 : 1975 BBCJ 579 (Pat); Mansukh Ram v The State, 1977 Cr LJ 563 : 1976 Raj LW 443 : 1976 (1) Raj Cr C 354 (Raj); Abdul Kader, 1975 Cr LJ 572 (Goa)].

On the other hand, it has been held in the following decisions that attachment under section 145(1) on the ground of emergency does not lead to the termination of the proceedings under section 145 and the Magistrate is bound to proceed with the inquiry under section. 145(4) and pass final order under section 145(6) declaring possession of the party found to be in possession with consequent withdrawal of the order of attachment. In case the Magistrate is unable to come to the conclusion as to who was in possession, the attachment will continue till adjudication by a competent court. According to this view, based on harmonious construction of the provisions of sections 146(1) and 145, section 146(1) must be construed as a part of section 145 and cannot override the provisions of section 145(4) [Ram Adhin v Shyama Devi, 1977 Cr LJ 453 : 1977 All LJ 382 : 1977 All Cr C 10 (All); Premlata v Ram Lubhaya, 1978 Cr LJ 1822 : 1978 All Cr C 336 : 1978 All Cr R 343 (All); Cajitan A. D’souza v State of Maharashtra, 1977 Cr LJ 2032 : 79 Bom LR 175 (Bom); Khetra Mohan Sarkar v Paran Chandra Mandal, 1978 Cr LJ 936 (Gau); V Vankey, 1978 Ker LT 741; Thokchom Khoyon Singh v Moirangmoyun Bira Singh, 1978 Cr LJ 1511 (Gau); Abdul Sattar v State of Bihar, 1979 Cr LJ 389 : 1978 Pat LJR 549 : 1978 BLJR 799 (Pat); Jagjit Singh v Jeet Kaur, 1979 Cr LJ 119 : ILR (1978) 2 P&H 214 (P&H); see also Md. Shafiq Ali v Surjan Bibi, 2004 Cr LJ 1183 : 2004 (2) Gau LR 207 (Gau)]. This view also finds support from the Supreme Court decision in Chandu Naik v Sita Ram B. Naik, 1978 SC 333 : 1978 Cr LJ 356 : (1978) 1 SCC 210 (SC), as has been pointed out in Khetramohan, Abdul Sattar and Jagjit, sup. In Gaya Singh v Doman Singh, AIR 1979 NOC 120 : 1979 Cr LJ 1110 FB : 1979 BLJR 48, (Pat) it has been held overruling Khedu Mahto, 1975 BBCJ 856 that in view of the decision in Chandu Naik v Sita Ram B. Naik, 1978 SC 333 : 1978 Cr LJ 356 : (1978) 1 SCC 210 (SC) there is now no scope for controversy and the attachment is to continue till the proceeding is decided in favour of one party or the other. the Supreme Court has directly held, settling the

Page 10 of 12 [s 146] Power to attach subject of dispute and to appoint receiver.— controversy once for all, that the Magistrate’s jurisdiction to proceed with the enquiry under section 145 does not end with attachment made on ground of emergency. He can continue the enquiry without waiting for determination of rights of parties by a competent Civil Court [Mathuralal v Bhanwar Lal, AIR 1980 SC 242 : 1980 Cr LJ 1 : 1979 (4) SCC 665 (SC); Kshetra Mohan Sarkar v Paran Chandra Mandal, 1978 Cr LJ 936 (Gau)apprd.; Chandu, sup disted.); Anil Barui v Nagendra Chandra Barui, 1978 Cr LJ 399 : 1979 (2) Cal HN 437 (Cal); MA Rahaman v State of AP, 1981 Cr LJ 1291 : 1981 (2) Andh LT 220 : 1981 (2) APLJ 144 (AP); Ashrafi Lal v Labh Singh, 1981 Cr LJ 1172 : (1981) 19 DLT 450 : 1981 Rajdhani LR 443 (Del)]. Attention of the readers is invited to the opinion expressed by the editors under the heading “Until a competent court.... possession thereof” in 4th Edn, 1975, pp 197–98 which is in accord with the above view. [s 146.12] “Until a competent court has determined the rights of the parties thereto.”— Suit for declaration of title and possession—Expression does not put any limitation on power of Civil Court in such suit to entertain and decide questions relating to title to suit property, merely because disputes as to title cannot be decided by the Magistrate under section 145. It requires the Magistrate to attach the subject matter of dispute in the event he is unable to satisfy himself as to which of the parties was then in such possession until a competent court determines the rights of the parties thereto, with regard to the person entitled to the possession thereof. Therefore, in the event the Magistrate fails to determine as to which of the parties was in possession of the disputed property and attaches the same, under section 146(1) of Code of Criminal Procedure, 1973, any of the parties thereto may file a suit in the Civil Court for determination of his rights with respect of the subject matter of dispute and for declaration that he is entitled to possession thereof [Bana Bhotrani v Bhadra Bhotra, (1988) Cr LJ 787 : (1986) 62 Cut LT 170 : 1986 (2) Ori LR 376 (Ori)].

A Magistrate is given power to attach the subject of dispute “until the competent court has determined the rights of the parties thereto with regard to the person entitled to the possession thereof”. The determination by a competent court of the rights of the parties spoken of, there has not necessarily to be a final determination. The determination may be even tentative at the interim stage when the competent court passes an order of interim injunction or appoints a receiver in respect of the subjectmatter of the dispute pending the final decision in the suit. The moment the competent court does so, even at the interim stage, the order of attachment passed by the Magistrate has to come to an end. The proviso to sub-section (1) of section 146 itself takes cognizance of such a situation when it states that the “magistrate may withdraw the attachment at any time if he is satisfied that there is no longer any likelihood of any breach of peace with regard to the subject of dispute”. The fact that the Magistrate can withdraw the order of attachment passed by him, even during the pendency of the dispute in the Civil Court, is made further clear by the provisions of sub-section (2) of section 146 [Dharampal v Ramshri, AIR 1993 SC 1361 : (1993) 1 SCC 435 : 1993 Cr LJ 1049 : 1993 (1) Crimes 304 (SC)].

The Supreme Court has held that even after attachment under section 146, the Magistrate can proceed under section 145 (4) to 145 (6) [Chandu Naik v Sitaram B. Naik, AIR 1978 SC 333 : 1978 Cr LJ 356 : (1978) 1 SCC 210 para 7]. [s 146.13] Competent court.— In the previous Code the word “civil” having been dropped from the words “Competent Civil Court” which appeared in the Code of 1882 it is obvious that the Legislature did not intend that competent court is to be confined to Civil Court alone [Malegowda v Mugaiah, AIR 1969 Mys 315 : 1969 Cr LJ 1251 : 1969 Mad LJ (Cri) 571; Shanti Kumar Panda v Shakuntala Devi, AIR 2004 SC 115 : (2004) 1 SCC 438 : 2004 Cr LJ 1249 (1257) : 2003 (4) Cur CC 259 : (2004) 1 SCC 438]. A competent court is one which has the jurisdictional competence to determine the question of title or the rights of the parties with regard to entitlement as to possession over the property forming the subjectmatter of proceedings before the Executive Magistrate [Shanti Kumar Panda v Shakuntala Devi, AIR 2004 SC 115 : 2004 Cr LJ 1249 (1257) : 2003 (4) Cur CC 259 : (2004) 1 SCC 438]. “Competent Court” includes a revenue court [Ambler, 37 C 331; Asesh, AIR 1924 C 812; Ram Ranbijay, AIR 1939 A 230], but not entry in finally published record of rights [Kutiswar, 30 Cal WN 646— Contra : Ram Ranbijay, sup]. Appellate Revenue Authority under Mysore (Personal and Miscellaneous) Inams Abolition Act, 1954 is a competent court [Malegowda, sup]. Where the Hindu Religious Endowment Board declared a person as trustee, he is entitled to possession from the Criminal Court [Sesha Reddi, AIR 1941 M 803]. Person whose right is declared by a court should seek possession through that court [Radharaman, AIR 1936 A 177]. [s 146.14] Receiver.— A person who is in possession of the property cannot be divested of possession merely on an information that there is a dispute which is likely to cause a breach of the peace [Madhusudanandapuri Swamiji v Assistant

Page 11 of 12 [s 146] Power to attach subject of dispute and to appoint receiver.— Commissioner, Banglore, 2008 Cr LJ (NOC) 802 (Kant) : 2008 (2) AIR Kar R 557; Smail SK v Bani Hussain, 2008 Cr LJ (NOC) 227 (Gau)]. [s 146.15] Legal proceedings initiated before competent court—Effect of order of Magistrate.— In legal proceedings initiated before a competent court consequent upon attachment under section 146(1) of the Code, it is not necessary to seek relief of recovery of possession. As the property is held custodia legis by the Magistrate, for and on behalf of the party who would ultimately succeed from the court, it would suffice if only determination of the rights with regard to the entitlement to the possession is sought for. Such a suit shall not be bad for not asking the relief of possession [Shanti Kumar Panda v Shakuntala Devi, AIR 2004 SC 115 : 2004 Cr LJ 1249 (1257) (SC) : 2003 (4) Cur CC 259 : (2004) 1 SCC 438]. [s 146.16] Recording of reasons.— Where no reasons are recorded in order passed under section 146(1), the order is liable to be set aside [Awadesh Prasad Singh v State of Bihar, 2006 Cr LJ (NOC) 563 (Pat); Brij Mohan Nath v Kesi Tripathi, 1984 Cr LJ 1112 (115) (Orissa)]. [s 146.17] Proviso to sub-section (1).— enables a Magistrate to withdraw the attachment whenever he is satisfied that there is no longer any apprehension of breach of the peace [Kutiswar, 30 Cal WN 646]. It was also so held under the old section [Khusi, 1 L 451]. The section is ambiguous as there is no direction as to whom the court is to hand over the property. So even if there be no fear of breach of the peace, the Magistrate must continue the attachment unless the parties can agree on the matter [Nurul Hasan, 45 Cr LJ 769—Contra]. The Magistrate may make over the property to any person that he thinks fit [Ali Bahadur, AIR 1926 Oudh 146. See also notes under section 145(5) ante]. [s 146.18] Sub-section (2) : Receiver.— Sub-section (2) provides for matters consequential to attachment. The Magistrate may make such arrangements as he considers proper for looking after the property or if necessary, appoint a receiver at the time of or after attachment, if no receiver has already been appointed by a Civil Court in a previously instituted litigation between the parties about the subject of dispute. Newly substituted proviso to sub-section (2) contemplates the appointment of a receiver by a Civil Court in a litigation between the parties about the subject of dispute after the appointment of a receiver by the Magistrate consequent upon attachment by him. In such a case, the Magistrate shall order the receiver appointed by him to deliver possession to the receiver appointed by the Civil Court and discharge him. He may also make incidental or consequential order as may be just.

In the absence of any condition specifically mentioned in section 146(1) of Code of Criminal Procedure, 1973, appointment of receiver of property seems to have been passed without proper application of mind, where state of emergency did not exist, order passed under section 146(1) of Code of Criminal Procedure, 1973 was liable to be set aside [Madan Lal v State of Rajasthan, 1999 Cr LJ 3077 (Raj)]. Where in a dispute over land, the court had passed an ex partedecree in favour of one party and the other party had made an application for setting aside the decree, and an interim stay order had been passed, it was held that the appointment of receiver in such circumstances was not proper [Sua Lal v Rana, 2003 Cr LJ 2273 : 2002 (3) Raj LR 43 : 2003 (4) Raj LW 2430 : 2002 (4) Cur Cr R 411 (Raj)].

Receiver may be appointed by the Magistrate if one is not already appointed by the Civil Court in a litigation between the parties. But appointment should be made after completion of the inquiry under section 145(4) and not before [Lakshminarayan, 13 Cr LJ 536]. Except where the case is considered to be one of emergency when appointment can be made after preliminary order under sub-section (1) of section 145. Where a Civil Court has already appointed a receiver, the Magistrate clearly contravenes section 146(2) by appointing a new receiver [Pranabkumar, inf]. When a receiver is appointed by Civil Court, the Magistrate will be bound to order the receiver appointed by him to hand over possession to the receiver appointed by Civil Court [Gopikrishna, (1977) A Cr R 241]. As to appointment and powers of a receiver, see O XL of Code of Civil Procedure, 1908 and Sarkar’s CP Code, 6th Edn, p 985 et seq. A receiver appointed under section 146(2) has all the powers of a receiver appointed under Code of Civil Procedure, 1908, and the Magistrate retains control over him until he is discharged. The receiver is liable to submit accounts and pay the amount due from him as the Magistrate may direct [Balakrishna Manna v Md. Majit Ali, 1978 Cr LJ 1275 : 1978 (2) Cal LJ 267 (Cal)]. Receiver is entitled to the accretions to the property and can give title to a tenant [Madhu, 14 Cal WN 681]. A party should not be appointed as receiver unless by consent [Lachmi, 28 Cr LJ 775]. Section 146(2) nowhere says that one

Page 12 of 12 [s 146] Power to attach subject of dispute and to appoint receiver.— of the warring parties cannot be appointed as receiver [Pranab Kumar Mukherjee v Yusuf Ali Bhar, 1979 Cr LJ 95 (Cal); Gopikrishna, (1977) A Cr R 241]. A lease by a receiver for an indeterminate period or to a party is unjustified [Meyappa, AIR 1933 M 67]. Acts of the receiver cannot prejudicially affect the rights of the party who is found to be entitled to possession [Jurawan, AIR 1955 P 244]. After attachment is made without making any enquiry under section 145, ordering receiver to remain in possession till decision of Civil Court is invalid [Banney v Ramesh Chandra, 1983 Cr LJ 18 (All); Mathuralal, AIR 1980 SC 242 : 1980 Cr LJ 1 : (1979) 4 SCC 665 : (1980) 1 SCJ 521 (SC) relied on)]. [s 146.19] Disputed land—Taking over by the government.— Land in dispute can be taken over by the government only if no one is in possession and the case is one of emergency [Gaddam Rajaiah v MRO, (2000) Cr LJ 1057 (AP) (Vaman Rao J.)]. [s 146.20] Civil suit—After attachment.— A party may bring a civil suit in which he need only ask for a declaration of his title as the Criminal Court is bound to deliver the property to the person whose title is declared [Karuni, AIR 1947 M 373; Sesha Reddi, AIR 1941 M 803 : Sakharam, AIR 1927 Nag 316]. Suit against the complainant for damages by reason of the land being kept under attachment does not lie [Minakumari, 14 Cal WN 96; Durvijay, AIR 1956 All 119 : (1955) 25 AWR 709]. [s 146.21] Review.— Magistrate cannot review his own order under the section [Lachmi, 19 Cr LJ 225; Eallam, 19 Cr LJ 105; Ram Dulare, 14 Cr LJ 605; Ramkumar, AIR 1922 Pat 554 : 68 Ind. Cas. 402]. [s 146.22] Revision.— (See notes to section 145, ante). Revision lies both to the Sessions Judge and High Court having concurrent full powers of revision (sections 399 and 401). Hence, if an order is to be quashed, remedy is to move either the Sessions Judge or the High Court. Court would not interfere with order regarding the management of attached property by the Magistrate [Lokenath, 29 C 382] unless it offended against an elementary rule [Lachmi, AIR 1928 P 393]. It has however also been held that order passed by the Magistrate as to the administration of attached property are revisable [Ganapathi Muthiriyar v Narayanaswami Vaithiar, AIR 1957 Mad 405 : 1957 Cr LJ 761 : 1957 Mad LJ (Cri) 330 : 70 Mad LW 629 dissenting from Zamindar of Devarakota v Kolli Pamaswamy, AIR 1948 Mad 234 : (1948) 49 Cr LJ 456 : 60 Mad LW 748 : 1947 (2) Mad LJ 459]. Failure to understand civil decree justifies interference [Durganand, AIR 1924 P 711]. The question whether there is a state of emergency or not is a matter within the Magistrate’s discretion and his action in ordering attachment for maintenance of peace would not be lightly interfered with in revision [Prem, AIR 1933 Lah 409 : (1933) ILR 14 LAH 615]. Revision against interlocutory order within section 397(2) is not maintainable. [JS Chauhan, 1990 UP Cr R 62] A revision does not lie against attachment as such [Ashfaq Hussain Entram Hussain, (1991) Cr LJ 747 All : 1990 All Cr R 800 : 1991 All Cr C 77]. Order of attachment of the property under section 146(1) of the Code made during the pendency of the proceedings under section 145 of Code of Criminal Procedure, 1973 is an interlocutory order and therefore, revision against such order is not maintainable [Jai Prakash v Rajeshwar Prasad, 2003 Cr LJ 4278 : 2003 (1) UC 243 : (2002) 44 All Cr C 971 (Uttr); Haripada Mardi v State of Jharkhand, 2004 Cr LJ 345 : 2003 (2) BLJR 1241 : 2003 (3) JCR Jhar 482 (Jhar); Md. Shafiq Ali v Surjan Bibi, 2004 Cr LJ 1183 : 2004 (2) Gau LR 207 (Gau). Contra : Mahant Lal Das v Jairam, 2004 (16) AIC 929 (Chh)].

If any order by the Executive Magistrate is passed under section 145 or 146 Code of Criminal Procedure, 1973, no revision can be entertained against such kinds of orders because these orders are regarded interlocutory orders [Yaqub Ali v State of Rajasthan, 1995 Cr LJ 1376 Raj].

Where material before the Magistrate does not justify directing attachment, there is no emergency at all, such an order would not be called interlocutory order and revision would not be barred [Gulabchand v State of UP, 2004 Cr LJ 2672 (2676) (All) : 2004 All LJ 1427 : (2004) 48 All CrC 579]. End of Document

[s 147] Dispute concerning right of use of land or water.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER X MAINTENANCE OF PUBLIC ORDER AND TRANQUILLITY > D.—Disputes as to Immovable Property

The Code of Criminal Procedure, 1973 CHAPTER X MAINTENANCE OF PUBLIC ORDER AND TRANQUILLITY Provisions of four chapters of the old Code, namely chapters 9, 10, 11 and 12 have been incorporated in this one chapter 10 divided into four parts—Pt A (Unlawful Assemblies—sections 129 to 132), Pt B (Public Nuisance— sections 133 to 143), Pt C (Urgent cases of Nuisance and Apprehended Danger—section 144), Pt D (Disputes as to Immovable Property—sections 145 to 148).

D.—Disputes as to Immovable Property [s 147] Dispute concerning right of use of land or water.— (1) Whenever an Executive Magistrate is satisfied from the report of a police officer or upon other information, that a dispute likely to cause a breach of the peace exists regarding any alleged right of user of any land or water within his local jurisdiction, whether such right be claimed as an easement or otherwise, he shall make an order in writing, stating the grounds of his being so satisfied and requiring the parties concerned in such dispute to attend his court in person or by pleader on a specified date and time and to put in written statements of their respective claims. Explanation.—The expression “land or water” has the meaning given to it in sub-section (2) of section 145. (2) The Magistrate shall then peruse the statements so put in, hear the parties, receive all such evidence as may be produced by them respectively, consider the effect of such evidence, take such further evidence, if any, as he thinks necessary and, if possible, decide whether such right exists; and the provisions of section 145 shall, so far as may be, apply in the case of such inquiry. (3) If it appears to such Magistrate that such rights exist, he may make an order prohibiting any interference with the exercise of such right including, in a proper case, an order for the removal of any obstruction in the exercise of any such right : Provided that no such order shall be made where the right is exercisable at all times of the year, unless such right has been exercised within three months next before the receipt under subsection (1) of the report of a police officer or other information leading to the institution of the inquiry, or where the right is exercisable only at particular seasons or on particular occasions, unless the right has been exercised during the last of such seasons or on the last of such occasions before such receipt. (4) When in any proceedings commenced under sub-section (1) of section 145 the Magistrate finds that the dispute is as regards an alleged right of user of land or water, he may, after recording his reasons, continue with the proceedings as if they had been commenced under sub-section (1);

Page 2 of 9 [s 147] Dispute concerning right of use of land or water.— and when in any proceedings commenced under sub-section (1) the Magistrate finds that the dispute should be dealt with under section 145, he may, after recording his reasons, continue with the proceedings as if they had been commenced under sub-section (1) of section 145. [s 147.1] STATE AMENDMENT IN SECTION 147 Maharashtra.—The following amendments were made by Maharashtra Act 1 of 1978, section 3 (with effect from 15-April-1978).

S. 147.—

In its application to the State of Maharashtra, in section 147(1), for the words “Whenever an Executive Magistrate” read “Whenever in Greater Bombay a Metropolitan Magistrate and elsewhere in the State, an Executive Magistrate.”

Saving of proceedings pending before Executive Magistrate in Greater Bombay under sec-tions 145 to 147 of Act 2 of 1974.—If any proceedings under sections 145, 146 or 147 of the said Code are pending before any Executive Magistrate in Greater Bombay on the day immediately preceding the date of commencement of this Act, they shall be continued, heard and disposed of by that Magistrate, as if this Act had not been passed. COMMENTS [s 147.2] Changes.— Section 147 corresponds to the old section 147 with the following changes:

(1) In sub-section (1) the words “an Executive Magistrate is satisfied from the report of a police officer or upon”, “shall” and “on a specified date and time” have been substituted for “any District Magistrate, Sub-divisional Magistrate” or Magistrate of the first class is satisfied from a police report or”, “may” and “within a time to be fixed by such Magistrate”, respectively. The meanings of “land or water” have been explained in the newly added explanation, omitting the reference in sub-section (1). (2) Old sub-section (1A) has been renumbered as sub-section (2). (3) Old sub-section (2) has been renumbered as sub-section (3). The word “receipt” has been substituted for institution, at the end. (4) New sub-section (4) has been added and old sub-sections (3) and (4) have been omitted.

The material changes introduced are:

(1) The Magistrate “shall” have to make a preliminary order under sub-section (1) unlike his discretion to make the order under old sub-section (1). The procedure has thus been brought in line with the procedure in section 145(1). (2) As to the scope of sub-section (3) in order to remove a conflict of judicial opinion the court has been expressly empowered to order removal of any obstruction by addition of certain words. (3) As regards the starting point for counting the period of three months, the proviso to sub-section (3) has been amended to make it clear that it shall be counted backwards from the date of receipt of report of a police officer or other information leading to the institution of the inquiry. The procedure has been brought in line with the procedure in section 145(4). (4) A new express provision has been made empowering the Magistrate to convert a proceeding under section 147 into one under section 145 and vice versa (sub-section 4). [s 147.3] Scope and application of section 147.—

Page 3 of 9 [s 147] Dispute concerning right of use of land or water.— The section has the same object as section 145. Existence of a dispute likely to cause a breach of the peace is the basis of the Magistrate’s jurisdiction in both sections [State of MP v Phodal Hira, AIR 1971 MP 43 : 1971 Cr LJ 219 : 1970 MPLJ 924 : 1970 Jab LJ 803]. The principal distinctions may be usefully noted:—

(1) Section 145 applies to disputes about possession of the land itself. In section 147, there is no dispute as to possession but the dispute is about the right to a particular use of land or water claimed as an easement or otherwise. (2) Under section 145 a party in order to succeed must prove “actual possession” irrespective of legal right : under section147(3) the Magistrate is to see whether the right of actual user claimed “appears” to exist irrespective of legal right, as the word “appears” denotes a lesser degree of assurance than “proved” (as defined in section 3 of Evidence Act) it would seem that the Magistrate may take action under section 147 if it “appears” to him that prima facie the exercise of the right of actual user exists [See post, Sub-section (3)]. (3) Under section 145 (6) the Magistrate “shall” make an order declaring possession, but under section 147 (3) he “may” make an order prohibiting interference with the exercise of the alleged right, including removing any obstruction in the exercise of such right, though on the existence of a dispute both under section 145 (1) and section 147 (1) the Magistrate shall make a preliminary order. (4) There can be attachment in a proceeding under section 145 [section 146], but there can be no attachment in a dispute under section 147 as the section deals with abstract rights of user which cannot be put into actual possession [see Rahim Baksha, 1984, 1 Cal 374; Chelliah, AIR 1942, M 77; Chandra Ballabh v Emperor, AIR 1948 All 105 : 1947 All LJ 532 : (1948) 49 Cr LJ 48 (2); Ali Md. AIR 1920 C 708; Rudi v Ram Kumar, AIR 1955 Raj 75 : 1955 Cr LJ 734 : 1955 Raj LW 552 : ILR (1955) 5 Raj 207 ; Ram Lal v Chuni Lal, AIR 1960 J&K 66 : 1960 Cr LJ 582 ; Rameshwar Rai v Raghu Kahar, AIR 1961 Pat 369 : 1961 (2) Cr LJ 371 : 1961 BLJR 144 ]. (5) The mode of inquiry under section 147 is the same as in section 145.

Proceedings under section 145 can be invoked when a dispute “exists concerning any land” which is likely to cause breach of the peace. Proceedings under section 147 can be initiated when a dispute exists regarding any alleged right of user of any land which is likely to cause breach of the peace. Though the distinction between the two fields is subtle, it is real. The mere fact that the root cause of a dispute is the right of user of any land does not mean that the nature of the dispute will ever remain in the same shape despite lapse of time. When the dispute relating to the right of user of the Mosque and Madrassa between two factions of the Muslim community developed into a dispute relating to possession of those buildings and the Magistrate, on police report, was satisfied that a dispute likely to cause breach of peace existed between the two groups concerning possession of the Mosque and Madrassa, and initiated proceedings under section 145(1) and ordered attachment of the buildings involved in dispute, the action taken by the Magistrate must be held to be proper and the High Court will not interfere under section 482 at that early stage [Thekkethodika Mammadunni v Adangalpurvan Alavikutty, (1988) Cr LJ 53 : 1986 (3) Crimes 532 (Ker)].

“Land or water” has the same meaning as in section 145 [see explanation to sub-section (1)]. Formerly, the section did not apply to rights arising out of contract [see Ganpat, 4 Cal WN 779] but the subsequent addition of “easement or otherwise” extended its scope. The word “otherwise” includes cases where a person may acquire the right of use by grant, custom, etc. [Bhubaneswari Goswami v Kaliram Burman, AIR 1960 Ass 90 : 1960 Cr LJ 794].

The section is not applicable if the matter is not adjudicable by the Civil Court [Atmaram, 14 B 25 (forbidding persons to take part in religious ceremonies)]. It is intended to preserve public peace and not to turn a Magistrate into a Civil Court for determining the rights of parties [Rasik, 22 WR 48; Moonshee, 6 WR 74; State of MP v Phodal Hira, AIR 1971 MP 43 : 1971 Cr LJ 219 : 1970 MPLJ 924 : 1970 Jab LJ 803]. If the Magistrate finds that the rights of the parties have been judicially determined in a previous civil suit, he has no jurisdiction in the matter [Bal Kr, 11 B 584; Anya, AIR 1927 B 654; Hitlal Mahton v Bhikhari Mahton, AIR 1952 Pat 251 :

Page 4 of 9 [s 147] Dispute concerning right of use of land or water.— 1951 Cr LJ 765 : 1953 BLJR 398]. Merely because a suit is pending in the Civil Court the Magistrate should not drop the proceedings unless he is satisfied that there is no apprehension of breach of the peace after the filing of the civil suit [Sheonandan Singh v Thakur Prasad Singh, 1976 Cr LJ 1781 : 1976 Pat LJ 240 : 1976 BBCJ 163 (Pat)].

An order can be passed under section 147 when notice was issued under section 145 and vice versa [see subsection (4) ]. Even before this specific provision the decisions were as follows: If section 145 does not apply and section 147 applies, an order under section 147 can be upheld [Kunjo, AIR 1939 P 206; Abdulla King-Emperor v Abdullah, AIR 1949 Nag 275 : (1949) 50 Cr LJ 693 : ILR 1949 Nag 388 : 1949 Nag LJ 40; Chhuttan, AIR 1956 A 452] and the fact that a wrong section (section 145) has been quoted will not alter the real character of the proceedings [Gajraj, AIR 1936 A 320; see Anath, AIR 1925 C 1022]. Notice under section 144 may be treated as equivalent to notice under section 147 (1) [Inderdeo, AIR 1936 P 59]. A proceeding started under section 145 or section 133 may be converted into one under section 147 if that is more appropriate by drawing up the necessary proceedings [Anath, AIR 1925 C 1022; Amarsang, 48 B 512; Panchan J. Rathore v Mohan Mogha, AIR 1950 Pat 315 : (1950) 51 Cr LJ 1188].

Members of B party were declared to be followers of beliefs and rituals opposed to the tenets of Islam and consequently they were ex-communicated and restrained from entering mosque. B party claimed to be Muslims. Disputes arose and the Magistrate passed an order under section 145. It was held, that there was no dispute concerning any land or boundaries thereof in order to attract the provisions of section 145. The mosque is a wakf and once a property is dedicated as wakf, it vests in God and the Mutawalli or the Manager has only a right of superintendence over the property. That being the legal position, section 145 is inapplicable to a dispute regarding the use of a mosque, it is section 147 of Code of Criminal Procedure, 1973 that is applicable [PP Puthiyanal Attakoya Thangal v Union Territory of Lakshadweep, 1988 Cr LJ 1206 : ILR (1987) 2 Ker 542 (Ker) : 1987 (1) Ker LT 762].

Since section 147 relates to use of the property, the court has no power to seal or attach any part of the property [Raj Internationals v State, 1983 Cr LJ (NOC) 158 : 1983 24 DLT 47 (Del)].

As to applicability of section 147 or section 107, see notes to section 107 ante. When in a case under section 147 a fight is apprehended, the parties should be bound over under section 107 [Ahmad Din, AIR 1927 L 550]. When proceeding under section 107 is pending, there is no bar to a proceeding under section 147 [Lachmandas, AIR 1936 SC 147]. When a case does not appear to fall either under section 145 or section 147 and there is an apprehension of breach of the peace, the Magistrate will be well advised to proceed under chapter 8 and bind down [Ganpat, 4 Cal WN 779; Ahmad Din, AIR 1927 L 55; Arunachellam, 29 M 97] specially when the enquiry is likely to be long and complicated [Bathoo, 21 C 727; Kalikissen, 23 C 557, 563].

Proceeding stayed, terminated cannot be revived or restarted [Bankim, 5 DLR (P) 152; Kalananda, 15 Cal WN 271]. If necessary, fresh proceedings should be initiated on fresh materials; see ante, section 145, “Fresh proceeding”].

Magistrate can drop the proceedings in certain circumstances even before taking evidence of the parties, but he cannot drop it on the pleader-commissioner’s report without calling him [Gobardhan Das v Ramautar Dhanuk, AIR 1961 Pat 404 : 1961 (2) Cr LJ 535 : 1961 Pat LR 37 : 1961 BLJR 281]. Application under section 147 cannot be dismissed for default in appearance [Tahawwar Husain v State, AIR 1953 All 440 : 1953 Cr LJ 983 : 1953 All LJ 11 : 1953 All WR 41].

Merely because there has been an order under section 147, the Civil Court’s discretion to grant injunction under O XXXIX is not fettered [Brojendra, AIR 1960 As 111 (Kripanath, AIR 1953 As 156 overruled)]. That part of the order which relates to costs is also subject to the decision of a Civil Court. But when a Civil Court reverses the order of the Magistrate, there is no order as to the costs awarded by the Magistrate, a separate suit does not lie for its recovery [Antony Bernard Pinto v Cecillia Fernandes Bai, AIR 1957 Mad 764 : 1957 Cr LJ 1420 : 70 Mad LW 85 : 1957 (1) Mad LJ 134 : 1957 Mad LJ (Cri) 51].

Page 5 of 9 [s 147] Dispute concerning right of use of land or water.—

There was a dispute between Mujahid and Sunni groups regarding worship— The dispute ripened into one regarding possession. Initiation of proceedings under section 145 was held legal—Plea that the dispute was under section 147 was not sustainable.

Magistrate had found that there was a dispute over the issue of possession, and had noticed that because of the dispute, the Mujahid closed the mosque. Magistrate was therefore justified in initiating proceeding under section 145.

Civil Court had not adjudicated the question of possession between the parties or decided in favour of one of the parties. Parties were not in a position to seek interim orders from the Civil Court, as no proceeding was pending. Therefore, the Magistrate had jurisdiction and he must arrive at a finding in accordance with section 145 [PC Khader v PK Khader, (1989) Cr LJ 1276 (Ker) : 1988 (1) Ker LT 302 : 1988 (1) Ker LJ 83 (July)].

Under section 147 of Code of Criminal Procedure, 1973, the Magistrate is not called upon to decide the title of either party. What is to be decided by the Magistrate is whether right of user exists in favour of either of the parties claiming the right where claim is made by easement or otherwise and whether such right has been used within three months next before the receipt of the information leading to institution of the inquiry [Balak Ram v Rasil Singh, 2009 Cr LJ 181 (184) (HP)]. [s 147.4] Sub-section (1) : “Satisfied from thereport of a police officer”.— (See ante, section 145 : “What constitutes jurisdiction”. If action is taken on report of a police officer, the officer need not be called as a witness [Todaramal, 53 A 215]. If there are good reasons for the Magistrate not being satisfied, the satisfaction cannot be thrust upon him by a superior court [Bajrangi Mandal v Sk. Bhutai, 1981 Cr LJ 363 : 1980 Pat LJ 410 : 1980 BLJR 391 (Pat)RH Bhutani v Mani J Desai, AIR 1968 SC 1444 : 1968 Cr LJ 13; BB Biswas, AIR 1939 P 111 : 40 Cr LJ 345 followed)].

Where the Magistrate has not recorded satisfaction as to the existence of an apprehension of likelihood of existence of breach of peace, order restraining a party from using the property by another person would be set aside [Siba Prasad Maharana v Dhadi Nayak, 2003 Cr LJ (NOC) 112 (Ori) : (2002) 94 Cut LT 780 : (2002) 23 OCR 472]. [s 147.5] “Dispute likely to cause”.— As to what is a dispute, see ante, section 145, “Scope and application”. It must be a substantial dispute and not a mere discussion or verbal altercation [Maharaja, 5 C 194]. Dispute with a present danger of breach of peace and not in the future is the foundation of jurisdiction (see ante, section 145). [s 147.6] Right of use of land or water.— “Right of user” means any dispute relating to a recurring right in the use of land or water whether the right was claimed by a person in possession of the land or not [see Arunachellam, 29 M 97; Dowlat, 10 IC 615— Contra, Ganpat, 4 Cal WN 779]. In a dispute relating to right of user of land, what the Magistrate is required is to decide as to whether such right of user does exist in favour of parties claiming right and whether such right has been used within three months next before receipt of information leading to institution of enquiry. The Magistrate cannot decide title of any party [Maheshwar Pratap Singh v State of Jharkhand, 2008 Cr LJ (NOC) 814 (Jhar) : 2008 (2) AIR Jhar R 129 : 2008 (64) All Ind Cas 745]. The right is not limited to an easement proper [Ishwar, 37 C 581; Srimanta, 13 Cal WN 859] as the section makes this clear. Easement embraces profit a pendre or right to enjoy profit out of the land of another [Dukhi, 23 C 55]. As to hats, ferries, fisheries, etc, it may be noted that where the right is incident to the ownership section 145 applies in the case of a dispute; but where the right is adverse to or apart from ownership, e.g., in the nature of an easement or profits a pendre, section 147 applies [see Ramroop, 13 P 153].

The following falls within the section : Right to fish in a water on another’s land [Dukhi, sup; Kalikissen, 23 C 557; Ramroop, sup]; to a ferry Harbullubh, 3 Cal WN 148]; to the flow of water for irrigation from a channel passing through the defendant’s village [Pasupati, 5 Cal WN 67] but it is not necessary to have the right of

Page 6 of 9 [s 147] Dispute concerning right of use of land or water.— easement strictly so-called established [Thankaswami Padayachi v Sridharan, 1977 Cr LJ 697 : 1976 Mad LW (Cri) 139 : 1976 Mad LJ (Cri) 555 (Mad); to take water from well [Hindus, etc, 11 Cr LJ 721; Dhyaneshwar, 3 Bom LR 416; Parashram, AIR 1924 N 294; Fajju, 38 Cr LJ 881]; to let off water by the natural course [Daulat, 12 Cr LJ 319]; to take rain water from field [Chelliah, AIR 1912 M 77]; to have an opening for passing water [Ambika, 39 C 560]; but not simply because one’s land is higher than another’s [Haradhone, AIR 1937 Cal 513]; to bury (Md. Abdul, 52 M 522]; to lay warps in a street [Sankara, 19 Cr LJ 977]; to collect certain fees, e.g., khutagari, arat, etc., for boats moored [Kunja, A 1939 P 206]; to collect tolas from hat [Sarat, 21 Cal WN 439]; to moor boats and dry fishing nets on another’s land [Kalikumar, 21 Cr LJ 697]; the right to hold a private market on land by long and immemorial user [Thounaojam Ningol Indrani Devi v Gurumayum Ningal Mainu Devi, AIR 1959 Mani 29 : 1959 Cr LJ 743]; right to graze cattle on another’s land on the basis of immemorial user [Ghana Bhoi v Natha Bhoi, 1980 Cr LJ 536 : 49 Cut LT 256 : 1980 Cut LR (Cri) 101 (Ori)]. Right to fish in the sea cannot be the subjectmatter of property or an easement and there being no such legal right, the order is illegal [Sethukaruppan, 58 M 876]. Right to use privy is not within the section [Shankar, 14 LJ 400].

Dispute as to right of worship in a particular temple or place of worship is a dispute as to user of land [Dhirendra Nath Das v Hrishikesh Mukherjee, AIR 1951 Cal 93 : (1951) 52 Cr LJ 940 : 55 Cal WN 594 : 52 Cr LJ 940 overruling earlier cases; Md. Musaliah, 1 M 323; Kader, 29 M 237; Chidambara, 15 Cr LJ 671; Sinnaswami, AIR 1925 Mad 779 : 88 Ind. Cas.2 : (1925) 48 Mad LJ 528; Perumal, AIR 1933 Mad 245 : 140 Ind. Cas. 900 : 1933 37 LW 143 : 1932 MWN 1079; Velappa, AIR 1938 Mad 537 : 1938 47 LW 305 : (1938) 1 Mad LJ 817 : 1938 MWN 348], but a dispute as to a right to worship generally and not in a particular place in a particular manner may not come within section 147 [Dhirendra, sup]. A dispute as to right of entry into temple is within it [Dayaram, AIR 1932 A 452]. The test is that if the dispute is as to a right inseparably connected with the use of land or building it is within section 147 [Velappa, sup]. The other test is that where the matter in dispute is such that no civil suit lies in respect of it, the Magistrate has no jurisdiction [Atmaram, 14 B 25; see Sarkar’s Code of Civil Procedure, 1908, 6th Edn, notes to section 9]. Right to recite sankalpam [Vempati Satyanarayan Murthy v R. Krishana Iyer, AIR 1950 Mad 593 : (1950) 51 Cr LJ 1508 : 1950 Mad WN 900 : 1950 Mad WN (Cri) 109 (1)] or dispute relating merely to offerings [Sobhag, 28 Cr LJ 687; Ramsaran, 38 C 387; Ghulam, 5 PLJ 246; see however Ambika Pandey v Gokul Pandey, AIR 1960 Pat 189 : 1960 Cr LJ 506 : 1959 BLJR 780 : 1960 Pat LR 18] is not within the section; but the right to sit in a particular spot for the offering is within in section 145 or section 147 [Abdul Majid, AIR 1941 N 171].

As to right of way, the specific reference to it in the former section has been omitted as it has been questioned whether it might not by implication to exclude negative easements from the scope of the section (Statement of Objects and Reasons). The section applies to right of way whether claimed by the public generally or a section of it [Maharaja, 5 C 194; Sudalaimuthu, 16 Cr LJ 767; Karuppana, 26 Mad LJ 223 : 15 Cr LJ 362; Md. Amir, 51 M 174], or by an individual over the land of another [Lalit, 5 Cal WN 335]. The section is wide enough to include a private path [Karuppana, sup; Hausala Bux Singh v Prembala, 1981 Cr LJ 1077 (All)] and there may be a joinder of personal and public right of way [Hamir & Co, AIR 1926 P 348]. “Land or water” refers to private property as also to public street [Md. Amir, AIR 1927 M 985]. Obstruction to a public thoroughfare being a public nuisance, section 133 applies and not section 147 [Satya Sundar Ghose v Sailendra Kinkar Pal, AIR 1954 Cal 560 : 1954 Cr LJ 1712]. Right to take car in procession along a public road [Dasappa, AIR 1925 B 536] or to carry a dead [Narayan, 7 M 49] is within the section.

The owner of the plot over which the right of use of water is claimed is necessary party to the proceedings under section 147 of Code of Criminal Procedure, 1973 [Satyaben Meher v State of Orissa, 2004 Cr LJ (NOC) 125 (Ori) : (2004) 27 OCR 851].

In the instant case, there was a dispute regarding the use of public path. The report of the tahsildar about the spot was of no consequence. Neither it said about the dispute likely to cause breach of peace, nor was he examined to substantiate his report, which had denied the fair opportunity to aggrieved party. The Magistrate had also not recorded his satisfaction about the existence of breach of peace. Further, the existence of the right of user was also not made out from the evidence on record. It was held that the order passed by the Magistrate for removal of obstruction was unsustainable [Balak Ram v Ranl Singh, 2009 Cr LJ 181 (184) (HP)].

In proceedings under section 147 of Code of Criminal Procedure, 1973, the Magistrate is required to only

Page 7 of 9 [s 147] Dispute concerning right of use of land or water.— decide whether the right of user of land claimed by a party exists in his favour. He cannot decide the title [Maheshwar Pratap Singh v State of Jharkhand, 2008 Cr LJ (NOC) 814 : 2008 (2) AIR Jhar R 129 (Jhar) : 2008 (64) All Ind Cas 745]. [s 147.7] “Make an order in writing”.— This is the preliminary order which is to be made in the same way as under section 145 (1) [see ante,]. An order with a direction to appear before the Magistrate is invalid [Misri, AIR 1921 P 333; see however Qamruddin Husain v Mushtaq Ahmad, AIR 1949 All 616 : (1949) 50 Cr LJ 929]. Where no formal order is drawn up and no notice was also issued on the parties to state their cases, the proceeding was bad [Debendra Kumar Das v Satish Chandra Das, AIR 1958 Ass 112 : 1958 Cr LJ 1131]. If a proceeding is amended by inclusion of other land, notice must be given to the party affected [Janaki, AIR 1925 C 2163].

No ad interim prohibitory order can be passed under sub-section (1) [Khoda Bux, 44 Cal WN 623; Ram Ch, AIR 1932 Nag 83; see Sukur Sao, AIR 1941 Pat 560]. Nor any emergency attachment order can also be passed as there is no provision for attachment under the section, because subject matter of dispute in section 147 is not the land or water but only the right to its user in respect of which there can be no attachment. Official help should not be given to a party by executive order to enable him to use land in the possession of another [Gurmauj, AIR 1936 All 759 : (1936) AWR 881 : 165 Ind. Cas. 721]. [s 147.8] “Parties concerned”.— (See ante section 145,). An earlier case held that no parties can be added after a preliminary order [Pasupati, 5 Cal WN 67, 70] but see Krishna Kamini, 30 C 155 FB; Parashram, 25 Cr LJ 353 and cases cited ante section 145 : “Parties concerned in such dispute”. It is sufficient if persons who claim the right for themselves (though derived from others) are made parties [Dukhi, 23 C 55, 59]. Proceeding against a gomastha is not illegal [Chhakauri, AIR 1926 P 196 : 91 Ind. Cas. 814]. [s 147.9] “Service of order”.— The order is to be served on all the parties and notice to their servants is not enough [Bathoo, 21 C 727; Lindsay, 4 M 121; Bhana, 1 Cr LJ 61; see section 145 (3) and notes ante, section 145 sub-section (3). [s 147.10] Sub-section (2) : Mode of inquiry.— The mode of enquiry is exactly the same as under section 145. The court must peruse the written statements and take all such evidence as may be produced by the parties, as also such further evidence as it may consider necessary. The enquiry must be a judicial one [Bathoo, 21 C 727] and any final order passed without a proper enquiry or an ex parte statement is illegal [Narendra, AIR 1924 Pat 717]; so also, any warning given through police [Satyanarayana, AIR 1946 Mad 412 : (1947) ILRMadras 154 : 1946 59 LW 301 : (1946) 1 Mad LJ 458]. Local inspection may be made but an order without taking evidence is illegal [Abdul Hamid, 24 Cr LJ 487]. As to how evidence is to be recorded in this inquiry, see section 274. See also section 315 (2). In a proceeding taken under section 133, no order can be passed under section 147 without following the procedure laid down in the section [Abdul Rahman, 15 Cal WN 667]. A proceeding in respect of a seasonal right cannot be dropped when the season is over added with an order against the other party as such order can be passed only after an inquiry [Dwarka, AIR 1941 Pat 281]. Magistrate can drop the proceeding if he comes to the finding that there was no likelihood of any breach of the peace [Dharmdas, 58 Cal WN 962]. [s 147.11] Interim order.— Interim order cannot be made without evidence establishing user [Kreshna Das Agrawal v Deen Dayal Agrawal, 1975 Cr LJ 127 : 1974 BLJR 316 (Pat); Nirajan Behera v Laxmidhar Rana, (1991) Cr LJ 1599 Ori : (1990) 70 Cut LT 48 : 1990 (1) Ori LR 514; Irshood Ahmad v State, (1978) Cr LJ 1464 (All) : 1978 All Cr C 304 : 1978 All WC 534].

In proceedings under section 147 of Code of Criminal Procedure, 1973 an Executive Magistrate can pass interlocutory order to prevent any hardship to any party [Sawa v State of Rajasthan, 1997(1) Crimes 294 (Raj)]. [s 147.12] Sub-section (3) : Final order.— This is the final order after inquiry. Under sub-section (3) the Magistrate is to satisfy himself that the right of user claimed “appears” to exist, not that it is to be strictly “proved” (see ante). “Such right exists” means “such right as is claimed”. An order is justified if the Magistrate thinks that reasonable grounds have been shown that

Page 8 of 9 [s 147] Dispute concerning right of use of land or water.— a bona fide claim of right exists [Hamir &Co, A 1926 P 348]. Right of easement need not be established. Fact of user is enough [Venkanna, AIR 1930 Mad 865 : 1930 32 LW 375 : (1930) 59 Mad LJ 430 : 1930 MWN 987].

The recording of finding that the right was exercised within three months next before receipt under sub-section (1) of the report of a police officer or other information leading to the inquiry is mandatory [Trijogi Narayan Singh v Kamta Prasad, AIR 1955 Pat 265 : 1955 Cr LJ 977 : 1955 BLJR 49; Chaturgun Turha v Jamadar Mian, AIR 1961 Pat 374 : 1961 (2) Cr LJ 374 : 1961 BLJR 350]. Final order though not a judgment under sections 353 and 354 must show that the Magistrate has fully gone through written statements and evidence and arrived at finding [Ratnakar Naik v Golakh Chandra Samal, AIR 1966 Ori 56 : 1966 Cr LJ 279 : 31 Cut LT 546]. As to the contents of his final order section 354(6). For Magistrate’s power of section 362.

An order is bad if it does not say that it is to operate until there is a decision of a competent Civil Court [Atmaram, 14 B 25, 27; see Form No. 27 Sch 2]. There is no provision for execution of the order. Disobedience is punishable under section 188 of Indian Penal Code, 1860 [Dalmir, 26 C 923; Ambika, 39 C 560]. [s 147.13] Removal of obstruction.— In the old Code, there was a conflict of decisions as to the scope of the words “prohibiting any interference with the exercise of such right”. Some High Courts held that the Magistrate could only make a prohibitory order in a negative form forbidding the doing of an act, but it could not make any order directing the doing of any positive or particular act (i.e., a mandatory injunction, e.g., the removal or demolition of any obstruction set up) [Hem Ch. 46 Cal WN 452 : AIR 1942 C 244 FB; King Emperor v Abdullah, AIR 1949 Nag 275 : (1949) 50 Cr LJ 693 : ILR 1949 Nag 388 : 1949 Nag LJ 40; Shantilal Magonlal v Dahyabhai Gordhanbhai, AIR 1954 Bom 368 : 1954 Cr LJ 1128 : 56 Bom LR 269; Ram Ishwar Singh v Rambachan Singh, AIR 1965 Pat 17 : 1965 (1) Cr LJ 64 : 1964 BLJR 765]. Some High Courts held that a negative prohibitory order could include a positive order for the effective enforcement of the prohibition and so the court had power to order the removal of an obstruction [Abdul Wahab Khan v Mohd. Hamid Ullah, AIR 1951 All 238 : (1951) 52 Cr LJ 795 FB : 1951 All LJ 400 : 1951 All WR 364; Bhubaneswami Goswami v Kaliram Burman, AIR 1960 Ass 90 : 1960 Cr LJ 794; Angappa Gounder v Krishnaswai Gounder, AIR 1959 Mad 28 : 1959 Cr LJ 52 : 71 Mad LW 621(2) : 1958 (2) Mad LJ 355 : 1958 Mad LJ (Cri) 710; Raghunath Shamrao v Yadav Sambhaji Hattikar, AIR 1959 Mys 177 : 1959 Cr LJ 878 : 1959 Mad LJ (Cri) 413; Ghumanda, AIR 1941 L 210; Ramdhan, AIR 1929 P 351]. The position has been clarified by addition of certain italicised words in sub-section (3) so as to empower the court to order removal of any obstruction in the exercise of any such right. See Law Commission of India, 37th Report para 398 : 41st Report, vol, 1, para 1211.

It is now very clear that under sub-section (3) as it now stands, the Magistrate may in an appropriate case order the removal of any obstruction, provided other conditions laid down in the section are satisfied. Where a party is ordered to remove obstruction, he must be given some time to comply with the order [Thankaswamy Padayachi v Sridharan, 1977 Cr LJ 697 : 1976 Mad LW (Cri) 139 : 1976 Mad LJ (Cri) 555 (Mad)].

When the wall that was causing obstruction had already been removed, an order of the Magistrate about damage in respect of flow of water (drainage) which was not be subjectmatter of the proceedings was held to be erroneous and without jurisdiction [Hrishikesh Shukla v State of Jharkhand, 2003 Cr LJ 761 : AIR 2003 Jhar HCR 233 : 2002 (3) East Cr C 428 : 2002 (3) JLJR 435 (Jhar)]. [s 147.14] Proviso to sub-section (3).— The final order must contain a finding that the right was exercised within the periods specified by the provision only when the Magistrate first finds that such right exists [Bhola Mahton v Bhattu Baitha, AIR 1970 Pat 320 : 1970 Cr LJ 1250; Sirkawal, AIR 1924 P 784; Grant, AIR 1921 P 486; Guru Pd, 14 Cr LJ 303]. In the old Code, the period of three months was to be counted backwards from the date of institution of inquiry. Opinions were conflicting as to the date of “the institution of inquiry” some holding that it was the date on which the grievance was first brought to the notice of the Magistrate and some holding that it was the date of the order directing drawing up of proceedings. To remove this controversy, certain words have been added. See in this connection, section 145(4).

“Last of such occasions” means the last of such occasions on which the right would have been exercisable

Page 9 of 9 [s 147] Dispute concerning right of use of land or water.— [Jadubans, AIR 1934 Pat 557 : 152 Ind. Cas. 295]. No specific instance of user need be proved within three months. Continuous general user up to date of obstruction is sufficient [Hamir & Co, AIR 1926 P 348]. “To exercise” means much less than successfully and completely to assert [Vellayan, AIR 1931 M 495].

When the right is not exercisable at all times of the year, the limitation in the provision does not apply [Gostha Behari Mandal v Abed Ali, AIR 1950 Cal 425 : (1950) 51 Cr LJ 1530 (right to bury)]. [s 147.15] Sub-section (4).— There was controversy as to whether a proceeding brought under section 145 could be converted into one under section 147, and vice versa. Sub-section (4) has been newly added to empower the Magistrate to proceed under whichever section he finds to be applicable, irrespective of the view taken at the stage of initiation of proceedings. [s 147.16] Revision.— (See ante notes to section 145). Revision lies both to the High Court and the Sessions Judge who has same full revisional power as the High Court has (sections 399 and 401).

Finding of fact cannot be traversed in revision and the party must go to the Civil Court [Kazi Md., AIR 926 M 154]. [s 147.17] Power of High Court to interfere with satisfaction of Magistrate.— Where the Magistrate is satisfied that there does not exist any dispute likely to cause breach of peace and withdraws the attachment, the High Court would not interfere under section 482 of Code of Criminal Procedure, 1973 [Nathu Lal v State of UP, 2009 Cr LJ (NOC) 719 (All)]. End of Document

[s 148] Local inquiry.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER X MAINTENANCE OF PUBLIC ORDER AND TRANQUILLITY > D.—Disputes as to Immovable Property

The Code of Criminal Procedure, 1973 CHAPTER X MAINTENANCE OF PUBLIC ORDER AND TRANQUILLITY Provisions of four chapters of the old Code, namely chapters 9, 10, 11 and 12 have been incorporated in this one chapter 10 divided into four parts—Pt A (Unlawful Assemblies—sections 129 to 132), Pt B (Public Nuisance— sections 133 to 143), Pt C (Urgent cases of Nuisance and Apprehended Danger—section 144), Pt D (Disputes as to Immovable Property—sections 145 to 148).

D.—Disputes as to Immovable Property [s 148] Local inquiry.— (1) Whenever a local inquiry is necessary for the purposes of section 145, section 146 or section 147, a District Magistrate or Sub-divisional Magistrate may depute any Magistrate subordinate to him to make the inquiry, and may furnish him with such written instructions as may seem necessary for his guidance, and may declare by whom the whole or any part of the necessary expenses of the inquiry shall be paid. (2) The report of the person so deputed may be read as evidence in the case. (3) When any costs have been incurred by any party to a proceeding under section 145, section 146, or section 147, the Magistrate passing a decision may direct by whom such costs shall be paid, whether by such party or by any other party to the proceeding, and whether in whole or in part or proportion and such costs may include any expenses incurred in respect of witnesses and of pleaders’ fees, which the court may consider reasonable. [s 148.1] Changes.— Section 148 corresponds to the old section 148. [s 148.2] Scope and application of section 148.— This section provides that—(1) if necessary for the purposes of sections 145–147 any subordinate Magistrate may be deputed to make a local inquiry, and (2) costs may be awarded to a party to the proceedings under the section.

Local inquiry.—

which is an inquiry within the meaning of section 2(g) [Satish, 22 C 898] can be ordered only when the Magistrate thinks it necessary. So it should not be directed to any matter which is provable by oral evidence. It is restricted solely to some question relating to the feature of the property [Baikunt, 3 CLR 134; Lalbehari, 10 Cal WN 181, 182; Lachmi Narain, AIR 1923 Pat 31 : 72 Ind. Cas. 971], identification, measurement, etc. The object is to understand the topography of the land. It cannot take the place of legal evidence, much less can it

Page 2 of 4 [s 148] Local inquiry.— be used as a basis for decision [Ramratan, AIR 1922 Pat 249 : 77 Ind. Cas. 492; Ram Sahai, 61 IC 712; Abdul Hamid, AIR 1923 Pat 366 : 72 Ind. Cas. 951]. The Magistrate must place on record what he saw [Abdul Hamid, sup; Lachmi Narain, sup : Dowalt, 15 CLJ 267 : Atiar, 39 C 476; Jasim Sheikh v Emperor, AIR 1946 Cal 537 : (1946) 47 Cr LJ 737 : 50 Cal WN 799; Hriday, 52 C 148]. The object of a local inspection under section 310 is to understand the evidence [Shk. Moinuddin, 2 PLT 455; Badal, 43 Cal WN 392], but it has been held that the rule does not apply to this section [Dowlat, 15 CLJ 1267 : 12 Cr LJ 319; Abdul Hamid, AIR 1923 Pat 366 : 72 Ind. Cas. 951] as under it, local inquiry is generally ordered before evidence is gone into. The result of the local inquiry should be made known to the parties to enable them to rebut [Jaiwanti, 20 Cr LJ 107; Abdul Hamid, AIR 1923 Pat 366: 72 Ind. Cas. 951]. It is a very serious error to have a local inquiry by a pleader commissioner which will vitiate the proceeding [JW Broucke v Kamleshwari Narain Singh, AIR 1950 Pat 472]. But if only a survey of the land and a map is required, the work being ministerial can be entrusted to a person other than a Magistrate whose report will of course not be evidence under sub-section (2) [Chulai, 1 P 75; Jagdish Thakur v Jadoo Pandey, AIR 1959 Pat 549 : 1959 Cr LJ 1460 (2) : 1959 Pat LR 139].

As to the scope of the inquiry, the Magistrate cannot leave the determination of the issues, e.g. the question of possession of user to a Sub-Magistrate [Pitambar, 13 Cr LJ 777 : 10 ALJ 465].

Jurisdiction.—A bare perusal of section 148 of Code of Criminal Procedure, 1973 shows that this section 148 does not confer any right on any party to insist that a subordinate Magistrate should be appointed for the purpose of conducting inquiry in the matter. The provisions contained in this section enable the District Magistrate and the SDM to depute a Magistrate subordinate to them, if it is considered necessary to do so. The reasons for enacting sectionof 148 Code of Criminal Procedure, 1973 appears to enable the District Magistrate and the SDM to obtain the services of Magistrate subordinate to them for the purpose of conducting inquiry and submitting report under section 148(2) of Code of Criminal Procedure, 1973, if on account of the exigencies of their office they cannot find enough time to conduct inquiry themselves in those cases where the District Magistrate and the SDM deem it fit to conduct inquiry themselves. There is nothing in sectionof 148 Code of Criminal Procedure, 1973 to justify the conclusion that the parties have a right to insist that inquiry should be entrusted to a subordinate Magistrate. Under the Criminal Procedure Code, 1973, all Executive Magistrate belong to one category. They can exercise all the powers which are conferred on Executive Magistrate under the Criminal Procedure Code and, therefore, every subordinate Magistrate should be deemed to be equal in performing functions of the Executive Magistrate [Soorajmal v State of Rajasthan, 1998 Cr LJ 1515 (Raj)]. [s 148.3] Local inspection.— Section 148 (which is the only provision for local inquiry in a proceeding under section 145 of the Code) lays down that a District Magistrate or the Sub-divisional Magistrate in whose court the inquiry is pending can depute a Magistrate subordinate to him, with necessary direction. This section does not give power to the District Magistrate or the Magistrate in whose court the proceeding is pending, to inspect the place in dispute himself. Such power is given under section 310 to the Judge or District Magistrate during inquiry or trial [Deo Prasad Saha v Ravi Ravidas, 1990 Cr LJ 823 : 1990 Pat LJR 375 : 1989 BLT (Rep) 608 (Patna) (Binodanand Singh, J.)].

The Magistrate can himself make the enquiry or depute a Sub- Magistrate [Dowlat, 12 Cr LJ 319; Abdul Hamid, 24 Cr LJ 487; Rajmohan, 5 Cal WN 886]; but the Sub-Magistrate cannot delegate power to another [Jaiwanti, 20 Cr LJ 107 : 48 IC 987]. The Magistrate deputed may legally record evidence in the course of the inquiry [Muthusami, 33 Mad LJ 78 : 18 Cr LJ 715]. A Magistrate under the guise of calling for a report ought not to depute a Sub-Magistrate to make the entire investigation and avoid the taking of evidence [Venkatapathi, AIR 1932 M 368].

Although subordinate Magistrate may be deputed under section 148 of Code of Criminal Procedure, 1973, to make a local inspection and report, yet the provision does not give power to the Magistrate in whose court the proceedings are pending in respect of the spot in dispute himself [Prem Narayan B Tiwari v Sita Ram Soni, 2008 Cr LJ 2906 (2907) (MP)].

“Written instructions”—refer to such directions as may be necessary for the guidance of the Sub-Magistrate, e.g., the points on which to report, the nature of the enquiry, the examination of witnesses, time for return, etc.

Page 3 of 4 [s 148] Local inquiry.— [s 148.4] Sub-section (2) : Report of inquiry.— is treated as evidence [Achambit, 12 Cr LJ 480], but the Magistrate cannot base his decision merely on the report [Pitambar, 13 Cr LJ 777; Ramratan, AIR 1922 Pat 249 : 77 Ind. Cas. 492]. The local inquiry is ancillary to the main inquiry as to possession or right of user and cannot take the place of it [Ramratan, sup; Ramsundar, 25 Cr LJ 545]. The Magistrate should take evidence [Muthusami, 33 Mad LJ 78] unless no evidence is tendered by the parties [Piziruddin, 14 Cr LJ 302], or they are content to abide by the result in the report [Muthusami, sup]. [s 148.5] Sub-section (3) : Order as to costs.— The Magistrate may award costs other than those incurred for witnesses and pleader’s fees as the words “may include” in the section plainly show. The section covers all costs incurred under section 145 (4) in managing the lands, and parties may be directed to share them equally [Darbar, AIR 1945 Sindh 3].

Magistrate has discretion to award costs to the successful party [Udhab, AIR 1937 Pat 559 : 171 Ind. Cas. 604; Chet Khan, AIR 1929 O 269], or when proceedings are allowed to be withdrawn or stayed altogether [Relumal, AIR 1928 Sindh 193—Contra; Narasimha, 12 Cr LJ 49]. As there is no limitation for assessment of costs, delay ought not to matter [Sarju Pd,; Giridhar, sup]. Costs may be awarded at the time of judgment or subsequent to it, but within a reasonable time [Vythinatha, 29 M 373; Giridhar, 22 C 384; Dowlat, 12 Cr LJ 319; Bansi, 12 Cr LJ 376; Tomizuddi, 24 C 757; Nafar, 24 Cal WN 672; Manglu, AIR 1929 Pat 93 : 114 Ind. Cas. 193; Kapoor, 55 A 301 : AIR 1933 A 264 FB; Pulim Chenchi Reddy v Mungamuri Sivarami Reddy, AIR 1968 AP 383 : 1968 Cr LJ 1645 : 1968 (2) Andh WR 512 : 1968 Mad LJ (Cri) 714]; but an order for costs long after is bad [Tamizuddi, sup; Manghu, sup; Narain, 1938 MWN 1011]. If costs are not given at the time of the decision, subsequent order should be made after notice to the parties so that they may show cause [Debendra, 37 Cal WN 849; Kappor, sup; Palaniyandi, AIR 1923 M 87; Tomizuddi, 24 C 757; Dilbashi, 10 Cal WN 1030; Syed Nezmal, 37 Cal WN 852; Vythinatha, 29 M 373; Prakash, 28 C 302; Bansi, 15 Cal WN 811]. In a case it has been held that award of costs after the decision by a subsequent order is bad [Thoongavedan, AIR 1941 Mad 374 : 1941 53 LW 66 : (1941) 1 Mad LJ 43].

Costs must be determined judicially and upon proper material [Debendra, 37 Cal WN 849; Manglu, AIR 1929 Pat 93 : 114 Ind. Cas. 193]. Only actual costs incurred can be awarded [Pulim Chenchi Reddy v Mungamuri Sivarane Reddy, AIR 1968 AP 383 : 1968 (2) Andh WR 512 : 1968 Mad LJ (Cri) 714 : 1968 Cr LJ 1645]. It was held in some earlier cases that the order should show how the figure is arrived at [Uday, 14 Cal WN lxxiij; Jhaman, AIR 1920 P 219 : 21 Cr LJ 625; Hira, AIR 1922 P 564 : Manglu sup]. But in view of the extreme difficulty in proving the exact sum spent in quasi-criminal cases, it has been held that under the section the discretion is very wide and the only restriction is that the costs should be reasonable [Brijpal, AIR 1932 A 325 : 33 Cr LJ 157; Langar Mahton v Radha Mahton, AIR 1954 Pat 135 : 1954 Cr LJ 209 : 1953 BLJR 518 : ILR 32 Pat 621]. Reasonable lawyer’s fee could be allowed [Lakhan Singh v Kishun Singh, AIR 1970 Pat 379 : 1970 Cr LJ 1571]. Reasonable cost as pleader’s fee for each date should be allowed [Sarju Prasad Sao v Ram Chandra Singh, AIR 1959 Pat 151 : 1959 Cr LJ 506 : 1958 BLJR 492 : 1958 Pat LR 233]. Awarding extra costs for fees of bringing lawyers from a distance condemned [Rajendra, 9 Cal WN 887]. Compensation cannot be awarded [Prayag, 32 C 608; Raghunath, AIR 1994 Ass 48].

Only the Magistrate passing the final order can award costs [Iklas, 11 Cr LJ (O) 335; Nafar, 47 C 974; Manglu, AIR 1929 P 94] and not his successor [Iklas, sup;Bhagwandas, AIR 1943 M 478; Sarju Prasad Sao v Ram Chandra Singh, AIR 1959 Pat 151 : 1959 Cr LJ 506 : 1958 BLJR 492 : 1958 Pat LR 233 (obiter)]. It is submitted with respect that the view in these cases does not appear to be correct. A proceeding under section 145 being a judicial proceeding, an order under it is a judicial order and the Magistrate acts as a “Court”. It has been held that for brevity the Code generally uses the terms “Court” and “Magistrate” as convertible terms [Clarke, 39 IA 163 : 39 C 953]. Further, the use of the word “Court” in the last sentence of sub-section (3) of section 148 is significant, as it unmistakably indicates that the power to award costs is conferred on the “Court” and not on the individual filling the office. It may also be pointed out that the words to attend his “Court” in person in subsection (1) of section 145 clearly shows that the Magistrate acting under section 145 is a “Court” [Vedappan, 52 M 69 : AIR 1928 M 1108]. It is therefore reasonably clear that when a Magistrate passes a final order under section 145 in the capacity of “Court”, his successor-in-office is competent to deal with an application for award of costs, in the same way as necessary subsequent actions in respect of all other orders of a “Court” can be taken under the law by its successor, e.g., the filing of complaint under section 340 by the successor of the

Page 4 of 4 [s 148] Local inquiry.— “Court” which heard the original case. When the order is of a “Court” the principle is that it maintains the continuity of jurisdiction though the personnel of the office may be changed, unless a contrary inference is permissible from the language of the Code. As to the meaning of the word “passing” in the words “the Magistrate passing a decision” in sub-section (3) of section 148, Subramanya, J, has observed : “The words passing” in sub-section (3) which follows the term “Magistrate” in the said provision, as I understand it, means no more than the Magistrate, who may award costs, is the officer holding the proceeding under the chapter or his successor entitled to discharge his functions in connection with the matter [Vythinatha, 29 M 373 : 4 Cr LJ 232]. The Magistrate must be equated with the word “Court” in the last sentence of section 148 (3) [Chandrama Rai v Harbans Rai, AIR 1965 Pat 21 : 1965 (1) Cr LJ 65 : 1965 BLJR 198].

The Magistrate passing final order may or may not be one who initiated the proceeding [Vythinatha, sup]. The successor of the Magistrate who ordered costs can assess the cost [Giridhar, 22 C 384; Md. Ershad, 23 C 37; Bhagavandas, AIR 1929 M 478; Sarju Prasad Sao v Ram Chandra Singh, AIR 1959 Pat 151 : 1959 Cr LJ 506 : 1958 BLJR 492 : 1958 Pat LR 233]. Legal representative of the deceased party can apply for assessment of costs [Subbia, 15 Cr LJ 676]. There being no express provision for the recovery of costs it can be realised according to the procedure laid down in section 421 [Lakhan Singh v Kishun Singh, AIR 1970 Pat 379 : 1970 Cr LJ 1571].

High Court under section 482 is empowered to pass “such order” which may include order to pay costs to complainant and power is not controlled by any other section which empowers the court to award costs [ AIR 1999 SC 2245 : 1999 Cr LJ 3513 : (1999) 5 SCC 209 : (1999) 3 Crimes 64]. [s 148.6] Exercising inherent powers.— Court while exercising inherent jurisdiction under section 482 of Code of Criminal Procedure, 1973 has power to pass an order, along with other orders, for costs in appropriate cases giving effect to an order, passed under the Code or to prevent abuse of process of any court or otherwise to secure ends of justice [Mary Angel v State of TN, 1999 Cr LJ 3513 (AP)]. [s 148.7] Revision.— (see notes to section 145; “Revision” ante). Revision lies both to the Session Judge and High Court and the Session Judge has same full revisional power as the High Court has (sections 399 and 401).

When costs are not awarded to the successful party without sufficient cause, High Court may interfere [Kunja, 40 Cr LJ 538; Ma Mya, AIR 1933 Rangoon 288 FB : (1933) ILR 11 RANG 361 : 145 Ind. Cas. 837].

High Court can allow costs incurred in the Magistrate’s Court, but not the costs in revision [Veerappa, 26 Cr LJ 707 FB; Kapoor, AIR 264 FB]. End of Document

[s 149] Police to prevent cognizable offences.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER XI PREVENTIVE ACTION OF THE POLICE

The Code of Criminal Procedure, 1973 CHAPTER XI PREVENTIVE ACTION OF THE POLICE [s 149] Police to prevent cognizable offences.— Every police officer may interpose for the purpose of preventing, and shall, to the best of his ability, prevent, the commission of any cognizable offence. [s 149.1] Changes.— Section 149 corresponds to the old section 149 verbatim. [s 149.2] Scope and application of section 149.— (See sections 150, 56–59 chapters 11 and 12 are inter-related. Outside chapter 12 of the Code, a police officer may do many things, e.g., arrest preventive action, dispersion of unlawful assembly and so forth. He may do these things while investigating or even without investigating [Monimohan, 35 Cal WN 627]. See also section 10A, 72 Calcutta Police Act, 1866 and sections 64, 65, 72 Bombay Police Act, 1951.

The section applies only to cognizable offences [section 2(c); Sch 1, col. 4]. Wider powers are given to the police in section 23 of Act 5 of 1981 for prevention of offence in general [Nga Kala, 17 Cr LJ 347 : 10 Bur Lt 17]. “Interpose” connotes active intervention and not merely a prohibition by word of mouth. But it is not wide enough to cover all sweeping orders. That would be unreasonable interference with the ordinary liberty of citizens [Raghunath, ILR 47 All 205 : 26 Cr LJ 599].

There was complaint against promoters of alleged money circulation scheme by I.G. Police during transition of power from one government to the other after election results were being declared. It was held that this in no way could effect validity of charges raised and failure to initiate action against other similar schemes could not be a ground to interfere with charges framed [Kuriachan Chacko v State of Kerala, 2007 Cr LJ 4458 (4468) : 2007 (2) Ker LJ 778 ].

End of Document

[s 150] Information of design to commit cognizable offence.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER XI PREVENTIVE ACTION OF THE POLICE

The Code of Criminal Procedure, 1973 CHAPTER XI PREVENTIVE ACTION OF THE POLICE [s 150] Information of design to commit cognizable offence.— Every police officer receiving information of a design to commit any cognizable offence shall communicate such information to the police officer to whom he is subordinate, and to any other officer whose duty it is to prevent or take cognizance of the commission of any such offence. [s 150.1] Changes.— Section 150 corresponds to the old section 150 verbatim.

“Any other officer”, i.e., officer-in-charge of a police station [See sections 2(o), 156, 157].

End of Document

[s 151] Arrest to prevent the commission of cognizable offences.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER XI PREVENTIVE ACTION OF THE POLICE

The Code of Criminal Procedure, 1973 CHAPTER XI PREVENTIVE ACTION OF THE POLICE [s 151] Arrest to prevent the commission of cognizable offences.— (1) A police officer knowing of a design to commit any cognizable offence may arrest, without orders from Magistrate and without a warrant, the person so designing, if it appears to such officer that the commission of the offence cannot be otherwise prevented. (2) No person arrested under sub-section (1) shall be detained in custody for a period exceeding twentyfour hours from the time of his arrest unless his further detention is required or authorised under any other provisions of this Code or of any other law for the time being in force. [s 151.1] STATE AMENDMENT IN SECTION 151 Maharashtra.— In its application to the State of Maharashtra,—

(a) In sub-section (2), after the words “required or authorised” the words, brackets and figure “under subsection (3) or” shall be inserted; (b) after sub-section (2), the following sub-section shall be inserted, namely :—

(3) (a) Where a person is arrested under this section and the officer making the arrest, or the officer in charge of the police station before whom the arrested person is produced, has reasonable grounds to believe that the detention of the arrested person for a period longer than twenty-four hours from the time of arrest (excluding the time required to take the arrested person from the place of arrest to the Court of a Judicial Magistrate) is necessary, by reason that—

(i)

the person is likely to continue the design to commit, or is likely to commit, the cognizable offence referred to in sub-section (1) after his release; and

(ii)

the circumstance of the case are such that his being at large is likely to be prejudicial to the maintenance of public order, the officer making the arrest, or the officer in charge of the police station, shall produce

Page 2 of 4 [s 151] Arrest to prevent the commission of cognizable offences.— such arrested person before the nearest Judicial Magistrate, together with a report in writing stating the reasons for the continued detention of such person for a period longer than twenty-four hours.

(b) Notwithstanding anything contained in this Code or any other law for the time being in force, where the Magistrate before whom such arrested person is produced is satisfied that there are reasonable grounds for the temporary detention of such person in custody beyond the period of twenty-four hours, he may, from time to time, by order remand such person to such custody as he may think fit:

Provided that, no person shall be detained under this section for a period exceeding fifteen days at a time, and for a total period exceeding thirty days from the date of arrest of such person.

(c) When any person is remanded to custody under clause (b), the Magistrate shall, as soon as may be, communicate to such person the grounds on which the order has been made and such person may make a representation against the order to the Court of Session. The Sessions Judge may, on receipt of such representation, after holding such inquiry as he deems fit, either reject the representation, or if he considers that further detention of the arrested person is not necessary, or that it is otherwise proper and just so to do, may vacate the order and the arrested person shall then be released forthwith. [Vide Mah. Act 7 of 1981, section 18 (with effect from 27 August 1980)]

COMMENTS [s 151.2] Changes.— (1) Sub-section (1) corresponds to the old section 151. (2) Sub-section (1) has been newly added. It provides that a person under preventive arrest by the police cannot be kept in custody for more than 24 hours within which time he must be produced before a Magistrate unless his further detention is required or authorised by any other law. [s 151.3] Scope and application of section 151.— Section 151 of the Code allows a police officer to arrest a person, even before the commission of a cognizable offence, in order to prevent the commission of that offence, if it cannot be prevented otherwise. Such preventive arrests can be valid for 24 hours. However, a Maharashtra State amendment to section 151 allows the custody of a person in that State even for up to a period of 30 days (with the order of the Judicial Magistrate) even before a cognizable offence is committed in order to prevent commission of such offence. Thus, the arrest of a person and registration of FIR are not directly and/or irreversibly linked and they are entirely different concepts operating under entirely different parameters [Lalita Kumari v Government of UP, AIR 2014 SC 187 , 2013 (13) Scale 559 , (2014) 2 SCC 1 ]. Two prerequisites are necessary, (1) the police officer knew that the offender had a design to commit a cognizable offence and (2) that the commission could not be otherwise prevented. [Mohammad Ali v Sri Ram Swarup, AIR 1965 All 161 : 1965 (1) Cr LJ 413 : 1963 All WR 760]. The officer must know that the person is designing to commit a cognizable offence. An apprehension that he may commit an offence is not sufficient [Balraj Madhok v UOI., AIR 1967 Delhi 31 : 1967 Cr LJ 865 ; Jagdish Chander Bhatia v State, 1983 Cr LJ (NOC) 235 (Del); Ahmad Noorbhai Bhath v State of Gujarat, 2005 (2) Crimes 26 (SC) : (2005) 3 SCC 647 : AIR 2005 SC 2115 : 2005 Cr LJ 2157]. The report of police stated that petitioner was a man of murdering tendency moving with lethal weapons and

Page 3 of 4 [s 151] Arrest to prevent the commission of cognizable offences.— would definitely commit cognizable offence endangering public peace during festival. It was held that acceptance of the said report by the Magistrate and granting detention for certain days was proper [Rajesh Ramrao Raut v State of Maharashtra, 2003 Cr LJ 4174 : 2003 All MR (Cri) 1707 : 2004 (4) Rec Cr R 174 (Bom)]. If an arrest or attempt to arrest is made without any emergency contemplated by the section, it is illegal and resistance or retaliation against use of criminal force is justified [Gaman, AIR 1930 L 348 : 31 Cr LJ 294]. There is no absolute dictum that under no circumstances can the High Court go into the question of proper exercise of the discretion by a police officer in arresting under section 151 [Md. Ali, sup]. Section 107 and section151 of the Code of Criminal Procedure, 1973 are, in terms, preventive, not punitive. Embedded in section151 are conditions that must be met for its invocation. A police officer may effect an arrest without a Magistrate’s order and without a warrant only where he learns that the arrested person is imminently likely to commit a cognizable offence. He must, in addition, be satisfied that the impending crime cannot otherwise be prevented. This means that the record must reflect a subjective satisfaction as to all these requirements. Where these conditions are not met, there is a violation of a person’s fundamental rights under Article 21 and Article 22 of the Constitution of India. Similarly, a Magistrate’s jurisdiction under section 107 is to be exercised only in an emergent situation [Vijay Lahu Patil v State, 2013 (4) KHC 270 ; Rajinder Singh Pathania v State (NCT of Delhi), 2011 (13) SCC 329 : 2011 (9) Scale 124 relied on]. A person arrested under section 41(1)(d) or under section 151 of Code of Criminal Procedure, 1973 on mere suspicion cannot be said to be a person against whom the commission of a cognizable or non-bailable offence is alleged or made out and such person cannot without anything more be remanded to judicial custody. On the contrary, such person should be released on bail by invoking the power under section 436 of Code of Criminal Procedure, 1973. But the position would be different, if after such arrest, there is material collected and produced before the Magistrate to indicate that such person has committed a cognizable or non-bailable offence [Manikandan v SI of Police, Nallalam Police Station, 2008 Cr LJ 1338 (1340) (Ker) : 2008 (1) Ker LT 37 : 2008 (1) Ker LJ 173 : 2008 (2) AICLR 35]. In the instant case, the agitators assembled on the road without arms shouting slogans demanding land for land and other rehabilitation measures and there was nothing in their conduct to show that they had any design to commit a cognizable offence the commission of offence had to be prevented by their arrest by the police under section 151 of Code of Criminal Procedure, 1973 and yet they were forcibly dragged by the police and put in the van. In fact, the petitioners and other agitators had done nothing to give rise to even an apprehension that they will disturb the tranquility, public peace or public order. Their arrest by police, sending them to jail on failure to furnish personal bond was violative of Articles 19(1)(a) and (b) and Article 21 of the Constitution [Medha Patkar v State of MP, 2008 Cr LJ 47 (58) (MP-DB) : 2007 (4) MPHT 219]. Section 151 merely authorises arrest and there can be no detention under it [Shravan Kumar Gupta v Superintendent Dist. Jail, AIR 1957 All 189 : 1957 Cr LJ 427 : 1957 All LJ 152 : 1957 All WR 14; Janardan Prasad Roy v State of Bihar, AIR 1968 Pat 22 : 1968 Cr LJ 75 : 1967 BLJR 37 ] and continuance of detention under order passed by District Magistrate served while in jail custody is illegal [Janardan, sup]. Suspicion of cognizable offence (section 154). Procedure after arrest (see sections 56–59); The power is only a limited and exceptional power and is in no sense analogous to the power of preventive detention. It is clear that arrest on mere general information would be illegal. “Knowledge” of a design i.e. plan for commission of a particular offence and the association of the particular person with it in some way, however slight, are necessary [Prahalad panda v Province of Orissa, AIR 1950 Ori 107 : (1950) 51 Cr LJ 891 : ILR (1949) 1 Cut 821 FB]— Contra : The “knowledge” and “appearance” are those of the police officers and are not capable of an independent investigation [Re : Om Prakasha Gupta, AIR 1949 Mad 744 : (1950) 51 Cr LJ 143 : 1949 (1)Mad LJ 554 : 62 Mad LW 394; A.K. Gopalan v State of Kerala, AIR 1962 Ker 215 : 1962 (2) Cr LJ 72 : 1962 Ker LT 17 : ILR (1962) 1 Ker 566 ; Chakkappan, AIR 1960 K 207]. Remand under section 167(2) applies whether the arrest is under section 41 or section 151 [Gopalan, sup]. See section 10-A Calcutta Police Act, 1866 and section 64, Bombay Police Act, 1951. [s 151.4] Sub-section (2)—”Authorised under any other provisions of the Code”.— Include authorisation under section 167, and hence if further detention of a person arrested under section 151 is considered necessary approach may be made under section 167 [DB Upadhaya, 1976 Mah LJ 550 ].

Page 4 of 4 [s 151] Arrest to prevent the commission of cognizable offences.—

End of Document

[s 152] Prevention of injury to public property.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER XI PREVENTIVE ACTION OF THE POLICE

The Code of Criminal Procedure, 1973 CHAPTER XI PREVENTIVE ACTION OF THE POLICE [s 152] Prevention of injury to public property.— A police officer may of his own authority interpose to prevent any injury attempted to be committed in his view to any public property, movable or immovable, or the removal or injury of any public landmark or buoy or other mark used for navigation. [s 152.1] Changes.— Section 152 corresponds to the old section 152 verbatim. [s 152.2] Scope and application of section 152.— If it is a cognizable offence the police officer may arrest without warrant, and if not he should apply for process. If there is obstruction to execution of duty, he may arrest under section 41(e) [See sections 430–434 of Indian Penal Code, 1860]. As to “interpose”, see notes to 149. Whether a telephonic message can be treated as an FIR or not would depend upon the facts and circumstances of each case. No hard and fast rule can be laid down in this connection. If (i) the telephonic message has been given to the officer-in-charge of a police station, (ii) the person giving the message is an ascertained one or is capable of being ascertained, (iii) the information has been reduced into writing as required by section 154 and (iv) it is a faithful record of such information, and (v) the information discloses the commission of a cognizable offence, and (vi) is not a cryptic one or incomplete in essential details. It should constitute an FIR. An anonymous information, or information which is vague or cryptic and lacks in essential details or information which has not been faithfully recorded, would not constitute an FIR. Reducing the imprint into writing is mandatory.

Whether it has been read over to the informant or not or signed by him or not are matters of form and not matters of substance.

Where the telephonic message was recorded from memory and was not verbatim and was neither read over to the messenger, nor his signature obtained, such report cannot be regarded as FIR. Hence, the statement recorded (later) at spot of commission of offence, would be the FIR and would not be hit by section 162, Code of Criminal Procedure, 1973 [Tehal Singh v State of Rajasthan, 1989 Cr LJ 1350 Raj : 1989 (1) Raj LR 123 ].

End of Document

[s 153] Inspection of weights and measures.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER XI PREVENTIVE ACTION OF THE POLICE

The Code of Criminal Procedure, 1973 CHAPTER XI PREVENTIVE ACTION OF THE POLICE [s 153] Inspection of weights and measures.— (1) Any officer in charge of a police station may, without a warrant, enter any place within the limits of such station for the purpose of inspecting or searching for any weights or measures or instruments for weighing, used or kept therein, whenever he has reason to believe that there are in such place any weights, measures or instruments for weighing which are false. (2) If he finds in such place any weights, measures or instruments for weighing which are false, he may seize the same, and shall forthwith give information of such seizure to a Magistrate having jurisdiction. [s 153.1] Changes.— Section 153 corresponds to the old section 153 verbatim. [s 153.2] Scope and application of section 153.— Offences relating to weights and measures (sections 264–267 of Indian Penal Code, 1860). See Standards of Weights and Measures Act 89 of 1956 relating to Weights and Measures “Magistrate having jurisdiction” (see Sch 1 Col 6 against chapter 13), for taking cognizance under section 190(1)(a) the information given being not a police report. [s 153.3] Powers of the Police in Calcutta, Bombay and Madras.— Section 55, Calcutta Police Act, 1866, provides for the keeping of standard weights and measures in the office of the Commissioner of Police. Under section 56 ibid any inspector or superior police officer may enter any shop or premises for inspecting weights and measures, and instruments for weighing, and may seize any weight, measure or instrument, for weighing which he may have reason to believe is false.

Under section 95 of the Bombay Police Act, 22 of 1951 any police officer generally or especially deputed, in Greater Bombay by the Commissioner of Police and elsewhere by the District Superintendent, or any other officer especially empowered in that behalf, may without warrant enter any shop or premises for inspecting or searching for any weights or measures or instruments for weighing or measuring used or kept therein. End of Document

[s 154] Information in cognizable cases.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER XII INFORMATION TO THE POLICE AND THEIR POWERS TO INVESTIGATE

The Code of Criminal Procedure, 1973 CHAPTER XII INFORMATION TO THE POLICE AND THEIR POWERS TO INVESTIGATE [s 154] Information in cognizable cases.— (1) Every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf: 1[Provided

that if the information is given by the woman against whom an offence under section 326A, section 326B, section 354, section 354A, section 354B, section 354C, section 354D, section 376, section 376A, section 376B, section 376C, section 376D, section 376E or section 509 of the Indian Penal Code (45 of 1860) is alleged to have been committed or attempted, then such information shall be recorded, by a woman police officer or any woman officer: Provided further that— (a) in the event that the person against whom an offence under section 354, section 354A, section 354B, section 354C, section 354D, section 376, section 376A, section 376B, section 376C, section 376D, section 376E or section 509 of the Indian Penal Code (45 of 1860) is alleged to have been committed or attempted, is temporarily or permanently mentally or physically disabled, then such information shall be recorded by a police officer, at the residence of the person seeking to report such offence or at a convenient place of such person’s choice, in the presence of an interpreter or a special educator, as the case may be: (b) the recording of such information shall be videographed; (c) the police officer shall get the statement of the person recorded by a Judicial Magistrate under clause (a) of sub-section (5A) of section 164 as soon as possible.] (2) A copy of the information as recorded under sub-section (1) shall be given forthwith, free of cost, to the informant. (3) Any person aggrieved by a refusal on the part of an officer in charge of a police station to record the information referred to in sub-section (1) may send the substance of such information, in writing and by post, to the Superintendent of Police concerned who, if satisfied that such information discloses the commission of a cognizable offence, shall either investigate the case himself or direct an investigation to be made by any police officer subordinate to him, in the manner provided by this Code, and such officer shall have all the powers of an officer in charge of the police station in relation to that offence. [s 154.1] Changes.—

Page 2 of 61 [s 154] Information in cognizable cases.— Sub-section (1) corresponds to old section 154. Sub-sections (2) and (3) have been added by Criminal Procedure Code, 1973.

Material changes introduced are: (1) Under sub-section (2) a mandatory duty has been cast upon the police to supply immediately a copy of the FIR free of cost to the informant.

(2) If the police officer refuses to record the FIR, under sub-section (3) the person aggrieved has been given the right to send by post the substance of the information to the Superintendent of police for investigation. [s 154.1.1] Criminal Law (Amendment) Act, 2013.— The Criminal law (Amendment) Act, 2013 has added two new provisos in sub-section (1) of section 154. The law makers vide this Amendment Act have strived to make the law more sensitive to the requirement of physically and mentally disabled women [see Shiva v State of Rajasthan, 2014 (1) Crimes102 (Raj)].

The newly added first proviso provides that when the information is given by the woman against whom an offence under section 326A, section 326B, section 354, section 354A, section 354B, section 354C, section 354D, section 376, section 376A, section 376B, section 376C, section 376D, section 376E or section 509 of the Indian Penal Code is alleged to have been committed or attempted, then such information shall be recorded by a woman police officer or any woman officer. On a reading of the proviso, it is clear that such woman police officer need not necessarily be the Station House Officer [Vijayan v State of Kerala, ILR 2013 (3) Kerala 772 : 2013 (3) KLJ 634].

The second proviso lays down that where the person against whom any of the sexual offences specified in the proviso itself is alleged to have been committed or attempted is temporarily or permanently mentally or physically disabled, then such information shall be recorded either at the residence of such person or at a place of that person’s choice in the presence of an interpreter or a special educator. It has been further provided that recording of such information shall be videographed and the police officer shall get the statement of the person recorded by a Judicial Magistrate under sub-section (5A) of section 164 of the Code of Criminal Procedure as soon as possible. [s 154.2] Scope and application of section 154.— Much importance attaches to the first statement of a person who lodges an information in the Thana about the commission of a crime as it is the original story of the occurrence given generally at the earliest opportunity without much time left for embellishment or fabrication. This section provides for the prompt and proper record of the information. It enjoins the police officer in charge to observe certain duties and formalities for the record of the first information. The conditions relating to the record of the first information are :—

(1) It must be an information (not vague but definite enough to enable the police to start investigation) relating to the commission of cognizable offence. (2) It must be given to an officer in charge of a police station. (3) It must (if oral), in the first stage, be reduced to writing by the officer in charge (or under his direction by someone else) and be read over to the informant; or the informant may himself give a written information or bring such a written information. This is the complaint or accusation to the police and technically called the FIR. (4) The oral information when reduced to writing must be signed by the informant and if a written information is given it must also be similarly signed by the informant. (5) In the final stage the substance of the information must be entered in a prescribed book. (Station or General Diary; see section 44, Act 5 of 1861).

Page 3 of 61 [s 154] Information in cognizable cases.—

The first information of the commission of a cognizable offence is enough to constitute the FIR. Mention of the time of commission or in what circumstances it was committed or who committed it, is not essential. The object behind the investigation is to ascertain these matters. Whether an information is one under section 154 is a matter of law; it is not open to the station officer to treat it as such or not according to his discretion [The State v Jagdeo, AIR 1955 NUC 1516 (All)]. Object and use of FIR [Apren Joseph v State of Kerala, AIR 1973 SC 1 : 1973 Cr LJ 185 : (1973) 3 SCC 114 ]. Importance of FIR [Thulia Kali v State of TN, AIR 1973 SC 501 ; Hem Raj v State of Punjab, 2003 Cr LJ 4987 : AIR 2003 SC 4259 : 2003 (4) Crimes 254 ].

The FIR is a pertinent document in the criminal law procedure of our country and the object of FIR from the point of view of the informant is to set the criminal law in motion and from the point of view of the investigating authorities is to obtain information about the alleged criminal activity so as to be able to take suitable steps for tracing and bringing to book the guilty party [Lalita Kumari v Govt of UP, AIR 2014 SC 187 : (2014) 2 SCC 1 : 2014 Cr LJ 470 (SC); Hasib v State of Bihar, AIR 1972 SC 283 : 1972 Cr LJ 233 (SC)]. The object is to obtain early information of alleged criminal activity, to record the circumstances before there is time for them to be forgotten or embellished [Emperor v Khwaja Nazir, 71 IA 203 : 49 Cal WN 191 : AIR 1945 PC 18 ]. It must be recorded at once when it is given, it would be improper to wait until it is ascertained that a crime has been committed [Kampu, 11 Cal WN 554, 556; Bhutnath, 7 Cal WN 345, 347]. To permit a preliminary inquiry before recording the FIR even after definite information as to the commission of an offence is received is to destroy its value and provide room for fabrication of cases [P Sirajuddin v Govt of Madras, AIR 1968 Mad 117 : 1968 Cr LJ 493 : 1968 (1) Mad LJ 480 : 1966 Mad LW (Cri) 223; State of Kerala v Samuel, AIR 1961 Ker 99 : 1961 (1) Cr LJ 505 : 1960 Ker LT 666 : 1960 Mad LJ (Cri) 695]. The offence may transpire to be cognizable or noncognizable. If found cognizable, the police can investigate upon information without the order of a Magistrate. Upon receipt of an information under section 154 or otherwise the police should make a report to the Magistrate and start investigation (sections 157—159). When the offence is non-cognizable they cannot investigate without the order of a Magistrate (section 155); they should refer the informant to the Magistrate, or they may report to him for order under section 155(2). A police report is not a complaint and a Magistrate can under Section 190(b) take cognizance of it, but the “report of a police officer” in respect of a non-cognizable offence is a complaint and the police officer is the complainant [see section 2(d), ante.]. The Magistrate can under section 202 direct investigation of a non-cognizable as well as a cognizable offence.

The provisions of section 154 of the Code are mandatory and the concerned officer is duty bound to register the case on the basis of such an information disclosing cognizable offence [Ramesh Kumari v State (NCT of Delhi), 2006 Cr LJ 1622 (1624) (SC) : AIR 2006 SC 1322 : 2006 (1) Crimes 229 : (2006) 2 SCC 677 ; Archana Harshwardhan Chaturvedi v Commissioner of Police, 2007 Cr LJ (NOC) 933 ; DAV Senior Secondary School v State of HP, 2008 Cr LJ (NOC) 471 (HP); Laxminarayan Gupta v Commissioner of Police, 2007 (1) Crimes 608 (Del); HH Avittam Thirumurthyvarma v Commissioner of Police, (2007) 1 Mad LJ (Cr) 673 (Mad)].

The condition that is sine qua non for recording an FIR under section 154 of the Code is that there must be information and that information must disclose a cognizable offence. If any information disclosing a cognizable offence is led before an officer in charge of the police station satisfying the requirement of section 154(1), the said police officer has no other option except to register a case on the basis of such information. The provision of section 154 of the Code is mandatory and the concerned officer is duty bound to register the case on the basis of information disclosing a cognizable offence. The plain words of section 154(1) of the Code have to be given their literal meaning [Lalita Kumari v Govt of UP, AIR 2014 SC 187 : (2014) 2 SCC 1 : 2014 Cr LJ 470 (SC); Re: Indian Woman says gang-raped on orders of Village Court published in Business and Financial News, AIR 2014 SC 2816 : (2014) 4 SCC 786 : 2014 Cr LJ 3135 (SC)].

Section 154 of the Code of Criminal Procedure mandates that every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction. The thrust is on the duty cast on the police officer to reduce to writing every information given to him, relating to the commission of a cognizable offence. The thrust is not on the competency or otherwise of the police officer to record the First Information Statement. That it is so clear from sub-section (3) of section 154 which permits any person, aggrieved by a refusal on the part of an officer in charge of a police

Page 4 of 61 [s 154] Information in cognizable cases.— station to record the information referred to in sub-section (1), to send the substance of such information, in writing and by post, to the Superintendent of Police. The first proviso to sub-section (1) of section 154, which was inserted by the Criminal Law (Amendment) Act, 2013 also lends support to this conclusion. The first proviso stipulates that a woman police officer shall record the information given by a woman against whom an offence specified under the first proviso is alleged to have been committed. On a reading of the proviso, it is clear that such woman police officer need not necessarily be the Station House Officer [Vijayan v State of Kerala, ILR 2013 (3) Kerala 772 : 2013 (3) KLJ 634 ].

While prompt registration of FIR is mandatory, checks and balances on power of police are equally important. Power of arrest or of investigation is not mechanical. It requires application of mind in the manner provided. Existence of power and its exercise are different. Delicate balance had to be maintained between the interest of society and liberty of an individual. Commercial offences have been put in the category of cases where FIR may not be warranted without enquiry [Ramdev Food Products Pvt Ltd v State of Gujarat, (2015) 2 Mad LJ (Cr) 112 (SC) : 2015 (3) Scale 622].

FIR need not be given by eye witness [Surjit Singh v State of Punjab, AIR 1992 SC 1389 : 1992 Cr LJ 1952 : 1992 (2) Crimes 282 : 1993 Supp (1) SCC 208 ]. The condition which is sine qua non for recording a first information report is that there must be an information and that information must disclose a cognizable offence before an officer-in-charge of a police station, satisfying the requirements of section 154(1). The said police except to enter the substance thereof in the prescribed form, that is to say, to register a case on the basis of such information [State of Haryana v Ch Bhajan Lal, AIR 1992 SC 604 : 1992 Cr LJ 527 (SC)].

The commencement of investigation in a cognizable offence by a police officer is subject to two conditions; firstly, the police officer should have reason to suspect the commission of a cognizable offence as required by section 157(1) and secondly, the police officer should subjectively satisfy himself as to whether there is sufficient ground for entering on an investigation even before he starts an investigation into the facts and circumstances of the case as contemplated by section 157(1)(b). Further, as clause (b) of the proviso permits the police officer to satisfy himself about the sufficiency of the ground even before entering on an investigation, it postulates that the police officer has to draw his satisfaction only on the materials which were placed before him at that stage, namely, the first information together with the documents, if any, enclosed [State of Haryana v Ch Bajan Lal, AIR 1992 SC 604 : 1992 Cr LJ 527 (SC)].

As per section 154 Code of Criminal Procedure, 1973, if any information disclosing a cognizable offence is placed before an officer-in-charge of a police station, such officer has to register the case on the basis of information given. It would be a grave miscarriage of justice if the offence disclosed in the complaint is not registered [Lala Chaudhary v State of Bihar, (2007) 1 Mad LJ (Cr) 241 (SC); Susadima Amalpam v Director General of Police, Chennai, (2007) 1 Mad LJ (Cr) 315 (Mad)].

Section 242(1) Companies Act, 1956, does not divest a police officer of the jurisdiction conferred by sections 154, 156 or 157 [M Vaidyanathan v The Sub-Divisional Magistrate, AIR 1957 Mad 65 : 1957 Cr LJ 205 : 1957 Mad LJ (Cri) 27 : (1957) 27 Com Cas 97 ]. Broadly stated the guarantee in Article 20(3) of Constitution is against “testimonial compulsion”. The protection is not merely in respect of testimonial compulsion in the “Court” room, but may well extend to compelled testimony previously obtained from him. It would be available to persons against whom a FIR has been recorded as the accused therein [Sharma MP v Satish Chandra, AIR 1954 SC 300 : 1954 Cr LJ 865 : 1954 SCR 1077 (SC)].

Delay in lodging FIR for offence of rape would not be fatal for prosecution case. [State of HP v Gian Chand, AIR 2001 SC 2075 : 2001 Cr LJ 2548 : 2001 SCC (Cri) 980 (SC) : 2001 (2) Crimes 256 ]. [s 154.3] First information of crime.— The term “first information” is not mentioned in the Code, but it means information recorded under section 154 [Monomohan, 35 Cal WN 623 : 38 C 1312]. Information means something in the nature of a complaint or accusation, or at least information of a crime given with the object of setting the police in motion [Gansa, 2 P 517 : 24 Cr LJ 641; See also Bijoy Singh v State, AIR 2002 SC 1949 : 2002 Cr LJ 2623 : (2002) 9 SCC 147 :

Page 5 of 61 [s 154] Information in cognizable cases.— 2002 (2) Crimes 437 ]. FIR need not contain details. It is sufficient if it indicates that an offence has been committed [Monomohan, supra; Gaman, AIR 1928 L 913; Bhopat Singh Kishan Singh v State of Maharashtra, AIR 1973 SC 446 : 1973 Cr LJ 343 : (1972) 3 SCC 367 ]; nor need it contain the names of the offenders or the witnesses [Re : Upputholla Sreenivasulu, AIR 1958 AP 37 : 1958 Cr LJ 18 : 1957 (2) Andh WR 63 : 1957 Mad LJ (Cri) 368]. FIR is not the encyclopedia in which all details should be given [Ashok Kumar v State, 2008 Cr LJ (NOC) 882 (Uttra); Pooran Singh v State of Uttarakhand, 2008 Cr LJ 2693 (Uttra); Umar Mohammad v State of Rajasthan, 2008 Cr LJ 816 (820) : 2008 AIR SCW 120 (SC) : 2008 (2) Mad LJ (Cri) 1127; State of Maharashtra v Mohd Sajid Hussain, 2007 (4) Crimes 206 (SC)]. It is neither customary nor necessary to mention every minute detail in FIR [Podda Narayana v State of AP, AIR 1975 SC 1252 : 1975 Cr LJ 1062 : (1975) 4 SCC 153 (SC); Ram Kant Singh v State of Bihar, 2006 Cr LJ 4752 (Pat) : 2006 (1) Pat LJR 42 ]. An FIR need not disclose all facts and details relating to offence reported. True test is that the police officer has reason to suspect commission of offence which he is empowered to investigate [Superintendent of Police, CBI v Tapan Kr Singh, AIR 2003 SC 4140 : 2003 Cr LJ 2322 : (2003) 6 SCC 175 : 2003 (2) Crimes 300 (SC); Om Prakash v State of Jharkhand, 2003 Cr LJ 483 (489) SC; Charu Kishore Mehta v State of Maharashtra, 2011 Cr LJ 1486 ]. Minor omissions in FIR are to be ignored when prosecution evidence is otherwise found reliable [Jahan Singh v State, 2005 Cr LJ 2005 (All) : 2005 All LJ 984 : (2005) 51 All CrC 636]. However, broad features of the case have to be mentioned [Ravi Kumar v State of Punjab, 2005 (1) Crimes 373 (SC) : 2005 Cr LJ 1742 : AIR 2005 SC 1929 : (2005) 9 SCC 315 ]. Omission of the injuries of the accused in FIR is not fatal when not explained by the prosecution by oral evidence [Narain v State, 2005 Cr LJ 2001 (2004) (All) : 2005 All LJ 979 : (2005) 51 All CrC 644].]. Informant need not have personal knowledge of incident [Hallu v State of MP, AIR 1974 SC 1936 : 1974 Cr LJ 1385 : (1974) 4 SCC 300 ]. A vague or indefinite information which does not make it incumbent to start investigation is not within Section 154 [Quamarul, AIR 1942 O 60; Magan Lal v King-Emperor, AIR 1946 Nag 173 , 182 : (1946) 47 Cr LJ 851 : 1946 Nag LJ 139 ; Gansa, ILR 2 C 517; Monomohan, supra]. Thus, when a sub-inspector was simply told that there was a shooting incident in a certain house and he, after an entry in the Diary, went to the house and recorded the statement of a witness which was treated as the first information, he had no information of the commission of a cognizable offence when he went to the house [Re: Mylaswarny Chetty, AIR 1939 Mad 66 ].

Where there is more than one FIR, the first in point of time which persuaded the police officer to start investigation is the FIR within section 154, and all others are hit by section 161. Report of alleged assault which contained the names of the accused persons was filed after the incident, on the basis of which the police arrived at the spot. Subsequent report lodged by the Sub-Inspector on the basis of the statement of one of the injured victims is not FIR. It is a statement to which section 161 applies. [Vijay Shankar v State of MP, 1989 Cr LJ (NOC) 151 : 1989 MPLJ 276 : 1989 CrLR (MP) 28 (MP)].

Entries made by an FIR in their records does not mean that an FIR contemplated by chapter 12 of the Code of Criminal Procedure, 1973 has been filed. [BC Saxena v State of AP, 1983 Cr LJ 1432 AP]. The first information report is the earliest officer report made to the police Somabhai v State of Gujarat, AIR 1975 SC 1453 : 1975 Cr LJ 1201 : (1975) 4 SCC 257 ; Bhulianth, 7 Cal WN 345 : Dinabanethu, 8 Cal WN 218. Kanpur, 11 Cal WN 554 : State of Bombay v Rusy Mistry, AIR 1960 SC 391 : 1960 Cr LJ 532 (SC) : Narayan Dutta v The State, 1980 Cr LJ 264 (Cal).

When report was made to PSI Patel who before reducing it to writing phoned to main police station, the report to PSI Patel is the FIR and not the phone message. [Somabhai v State of Gujarat, AIR 1975 SC 1453 : 1975 Cr LJ 1201 : (1975) 4 SCC 257 ]. Where a person reported that a woman was lying with her throat open but it was not recorded and subsequent information was lodged by the woman’s father, the former was the first information [Chandrika, ILR 1 Pat 401 : See Daulat, 6 Cal WN 921; Patil, 37 Cr LJ 357; Gansa, ILR 2 Pat 517; Salid All, AIR 1937 Cal 309 ; 38 Cr LJ 1067 : Bank, 31 Cr LJ 444; see however Aliman, AIR 1938 Lah 787 ]. Telephone message received by police officer from anonymous person revealing cognizable offence is FIR [Randhir Singh v The State, 1980 Cr LJ 1379 (Delhi) : 18(1980) DLT 172 ].

A telephonic message was given to the police to the effect that the accused accompanied by others assaulted complainant party. But it did not disclose the nature of offence and manner in which the offence was committed. The Apex Court held that the said message recorded at police station was cryptic and could not be treated as an FIR. [Bhagwan Jagannath Markad v State of Maharashtra, AIR 2016 SC 4531 : 2016 (10) SCC 537 ].

Page 6 of 61 [s 154] Information in cognizable cases.— Even on a telephonic message, an FIR can be recorded so as to initiate investigation. But if cryptic message regarding the occurrence without names of the deceased or the accused is recorded in station diary entry, then not treating such diary as FIR is justified [Balgopal Panda v The State, 1990 Cr LJ 1848 : (1990) 70 Cut LT 1 (Orissa-DB)]. A cryptic message given on telephone by somebody who does not disclose his identity may not satisfy the requirement of section 154 of the Code of Criminal Procedure [Ramesh Baburao Devaskar v State of Maharashtra, (2007) 13 SCC 501 ; Sidhartha Vashisht v State (NCT of Delhi), AIR 2010 SC 2352 : (2010) 6 SCC 1 ].

A cryptic message recording an occurrence cannot be termed as a First Information Report. In order for a message or communication to be qualified to be first information report, there must be something in the nature of complaint or accusation or at least some information of the crime given with the object of setting the police or criminal law in motion. It is not necessary that the first information report should contain the minutest detail or the names of offenders or the witnesses. But it must contain some information about the crime committed as also some information about the manner in which the cognizable offence was committed [Patai v State of UP, 2010 (3) Cr LJ 2815 : AIR 2010 SC 2254 : (2010) 4 SCC 429 . See also Surajit Sarkar v State of WB, AIR 2013 SC 807 ].

In the instant case, the Investigating Officer gave cogent reasons for not treating the telephonic information as a first information report. According to him many a times the police received false report over the telephone. Therefore, he thought it prudent to first verify the facts before treating the telephonic information as a first information report. The explanation offered by the Investigating Officer was held reasonable [Jagat Singh v State of Rajasthan, 2008 Cr LJ 1744 (1749) (Raj) : 2007 (4) Crimes 549 : 2008 (1) Raj Cri C 101].

Recording of such message is not necessary [Raberi Karsen Cova v The State of Gujarat, 1977 Cr LJ 107 17 Guj LR 316 : 1976 Guj Cr R 60 (Guj)]. Subsequent conduct is however hit by section 162 [Raberi Karsen Cova v The State of Gujarat, 1977 Cr LJ 107 17 Guj LR 316 : 1976 Guj Cr R 60 (Guj)]. Admission made by the accused to police officer who proceeded to the spot and made investigation is also hit by section 162 [Randhir Singh v The State, 1980 Cr LJ 1397 Delhi].

Information given to ASI of police outpost was recorded by him in the station diary and sent to officer in charge of police station Information so given to ASI is not an FIR. [State v Dhara Behera, (1976) Cr LJ 262 : 42 Cut LT 726 (Ori)].

On receipt of information regarding occurrence, police officer reaching scene, sending deceased to hospital, arrested accused and seized his clothes, thereafter revealed statement of eye-witnesses, which would not be used as an FIR, but it was merely a statement recorded during investigation. The testimony of witnesses would be assessed on its own merits. [Somappa Vamanappa Madar v State of Mysore, AIR 1979 SC 1831 : (1979) Cr LJ 1358 : (1980) 1 SCC 479 : 1979 SCC (Cri) 910 ].

Where the information is only one which required the police to move to the place of occurrence and as a matter of fact the detailed statement was recorded after going to the place of occurrence, the said statement is to be treated as an FIR [State of AP v V V Panduranga Rao, 2009 Cr LJ 2972 (2974) (SC) : AIR 2009 SC 2446 : 2009 AIR SCW 4558].

Information received by the police from the Dead Body Room in the hospital where dead body was sent for post-mortem, cannot be treated as an FIR [Raghunath Bapu Bavade v State of Maharashtra, 2007 Cr LJ (NOC) 913 : 2007 (5) AIR Bom 287 (Bom-DB)].

It is whether an event is resulted of an accident for wrongful act. If information is given to police. Relative of a person (who had been shot) gave information of the accused to the police officer. The latter after making an

Page 7 of 61 [s 154] Information in cognizable cases.— entry in the diary went to the hospital and recorded the injured’s statement. Entry in the diary is the FIR [Guruswami Naidu v Villis Guruswami Naidu, AIR 1951 Mad 812 : 1951 Cr LJ 857 : 1951 (1) Mad LJ 426].

If there is an information given first in point of time to a Station House Officer from an authentic source relating to the commission of a cognizable offence or suggestive of a reasonable suspicion that a cognizable offence has been committed, then the investigation can commence on the registration of a case on such information and such an information will, for all practical purposes, be “first information”. In case even if reliable information is stated to have been received by a police officer and it relates to prospect of suspicion of commission of a cognizable offence, it may not be termed as first information where it lacks its authentic source [Rajeswar v State, 1992 Cr LJ 661 (Mad) Vanava Unam J.].

But the sole criterion of an FIR is not that it is first in point of time. Thus, the first information recorded given by V that S was being taken away by M with her ornaments. The next information given by K that search was made for S and S had not been found was also recorded and investigation started. The day after, information by K was that as S did not return it was suspected that she had been killed. The last was the FIR as this was the information relating to the commission of a cognizable offence [Monomohan, 35 Cal WN 623 : 58 C 1312 (cases reviewed)]. A missing information recorded in the General Diary, which is not required to be signed is not an FIR [Arun Kumar Banerjee v The State, AIR 1962 Cal 504 : 1962 (2) Cr LJ 354 ]. Information given at the beat-house though first in point of time is not first information [Srimanta Manna v The State, AIR 1960 Cal 519 : 1960 Cr LJ 1078 ]. Information not about occurrence but only cryptic message informing of appeal for immediate help is not FIR [Nemai Adak v The State, AIR 1965 Cal 89 : 1965 (1) Cr LJ 160 ].

The true rule therefore is that, any sort of information (vague or indefinite) given first in point of time is not necessarily the first information. Whether a particular information amounts to first information or not is essentially a question of fact depending upon circumstances of each case [Monomohan, supra; Guruswami Naidu v Villis Guruswami Naidu, AIR 1951 Mad 812 : 1951 Cr LJ 857 : 1951 (1) Mad LJ 426; Quamarul, AIR 1942 O 60; State of Kerala v Samuel, AIR 1961 Ker 99 FB : 1961 (1) Cr LJ 505 : 1960 Ker LT 666 : ILR (1960) Ker 783 ]. In determining whether a report is or not an FIR regard should be had to the following :—

(i)

It should not be vague or indefinite but an information of facts showing commission of a cognizable offence enabling the police or giving assent to take up investigation.

(ii) It may be given by any one, not necessarily the person aggrieved or by someone on his behalf. (iii) It need not name any one as offender or witness; nor need it state the circumstances of the commission of the crime. It is the first information which sets the police in motion; information received after investigation has commenced is dealt with under sections 161 and 162.

When a petition is received by the police that a forester was taking bribes and the police questioned the complainant and others and filed a report after eight months, the petition is the FIR and the report is a charge sheet [State of Kerala v Samuel, AIR 1961 Ker 99 FB : 1961 (1) Cr LJ 505 : 1960 Ker LT 666 : 1960 Ker LJ 821 ]. If investigation has started after some information, however, incomplete, any subsequent information cannot be regarded as an FIR [Moti Singh v Emperor, AIR 1948 All 289 : (1948) 49 Cr LJ 367 : 1948 All LJ 53 : 1948 All WR 71; Jainand (Dr.) Jainand v Rex, AIR 1949 All 291 : (1949) 50 Cr LJ 498 : 1949 All WR 13 : 1949 All LJ 60]. FIR must be distinguished from information received after the commencement of investigation which is covered by sections 161 and 162 [State of Bombay v Rusy Mistry, AIR 1960 SC 391 : 1960 Cr LJ 532 ]. Information of an offence given by a wounded person to a police officer is an FIR even though he may not record it. Subsequent information to police of the same occurrence falls within section 162 and must be discarded [Re: Mutyala Yerakadu, AIR 1956 AP 103 : 1956 Cr LJ 578 : 1955 Andh LT (Cri) 323 : 1955 Andh WR 871]; see Sarkar Evidence, 13th Edn pp 1413–15.

Page 8 of 61 [s 154] Information in cognizable cases.— It frequently happens that more than one person go at or about the same time and make statements to the police about the same offence. The police officer will use common sense and record one statement as FIR. He may if he chooses to record other statements, record them, which will be in the nature of statements made during investigation [Monomohan, 35 Cal WN 623 : 58 C 1312 ].

Despatching of FIR to Magistrate after three days of its recording without any explanation for delay will support the defence contention that FIR was an after thought [Ajodhya Singh, 1990 PLJR 278 ].

Information in section 154 may come from more than one source, and more than one such information may be recorded at or about the same time [Gansa, 2 P 517, 523; Mir Rahman, AIR 1935 Pesh 165 ]. Where information is given to the police at two different places by two different persons, and one is earlier in point of time, the later report is an independent first information and cannot be excluded as being hit by section 162 [Lalji, AIR 1936 P 11; Aftab Md, AIR 1940 A 291; Mir Rahman, AIR 1935 Pesh 165; Magan Lal v Emperor, AIR 1946 Nag 173 , 182 : (1946) 47 Cr LJ 851 : ILR (1946) Nag 126 , 182; Suba Chaudhury v The King, AIR 1950 Pat 44 : (1950) 51 Cr LJ 331 : ILR 28 Pat 762; Tika Ram v State, AIR 1957 AP 755 : 1957 Cr LJ 1200 : 1958 All LJ 104 : 1958 All WR 182]. An information recorded a few hours after the investigation had begun, is the first information where there was no previous information [Dargahi, 52 C 499]. Lack of sanction for prosecution does not enable the Magistrate to cancel an FIR. Police can investigate before sanction [Hamid, AIR 1945 C 385; see Khwaja Nazir, 71 LT 203 : 49 Cal WN 191 : AIR 1945 PC 18 cited under section 156]. There may be separate information reports against the same person for separate offences [Khwaja Nazir, supra].

FIR recorded during investigation causing no prejudice [Motiram Kirshnarao v State of MP, AIR 1957 Nag 121 : 1957 Cr LJ 819 : 1955 Nag LJ 61 : ILR (1954) Nag 922 ]. Failure to record statement of first information makes the prosecution suspicious. The recording of the statement of the second informant does not make him the first informant [Chandrika, AIR 1922 P 535].

A telegram sent is not an FIR [Kochi, 39 Cal WN 403; Chidambaram, AIR 1928 M 79; Sailendra Kumar Roy Choudhury v Territory of Tripura, AIR 1959 Mani 11 : 1959 Cr LJ 237 ; K.S. Nirmal Kumar Sinhji v State, AIR 1954 Sau 55 : 1954 Cr LJ 678 : 6 Sau LR 118—Contra : Chanan, AIR 1934 L 413]. A telephone message may be recorded as an FIR [Shwe Pru, AIR 1941 R 209; Banta, 31 Cr LJ 144 : see however Chandrama Prasad Chamar v State, 1951 (1) Cal 539 : AIR 1955 NUC 1066 ] but not one from a hospital mentioning only a hatchet wound and no offence [Meherali, AIR 1931 SC 13 ]. Cryptic and anonymous telephone message is not an FIR [Tapinder Singh v State of Punjab, AIR 1970 SC 1566 : 1970 Cr LJ 1415 : (1970) 2 SCC 113 : (SC); State of Gujarat v Kalidas Nanjibhai Parmar, 1979 Cr LJ (NOC) 209 : 1980 CrLR (Guj) 37 (Guj)]. Cryptic hearsay, telephonic or telegraphic message conveyed by one who was not an eye-witness is not an FIR [Saroop Singh v State, AIR 1964 Punj 508 : 1964 (2) Cr LJ 718 : 67 Punj LR 5]. Statement of a witness after investigation had been started on receipt of a telephone message, is not an FIR and is hit by section 162 [Kamal Kanto Das v State, AIR 1959 Cal 342 : 1959 Cr LJ 694 ].

It is settled law that the first information report need not contain the minute details of the crime. It is enough, if broad picture presented by the prosecution was revealed in the First Information Report. No exception can be taken against a report, if it contains the broad features of the crime. [Naurangi Lal v State of UP, 1996 Cr LJ 81 : 1995 All LJ 1625 (All); Kunder Sarkar v State of Assam, 2009 Cr LJ 3727 (3728)].

In view of the law laid down by the Supreme Court in Raberi Karsan Cove v State of Gujarat, 1977 Cr LJ 107 : 17 Guj LR 316 : 1976 Guj Cr R 60, the law laid down by the High Court holding that telephonic message cannot amount to FIR under section 154, Code of Criminal Procedure, 1973 cannot be said to be good law any more. [SG Gundegowda v State, 1996 Cr LJ 852 : 1996 (1) Kant LJ 150 : 1996 (2) Cur Cr R 262 (Kant)].

The police on receipt of telephonic information from PW-5 with regard to the incident, made station diary entry and police personnel were deputed to the spot to guard the tense situation. Ajit who had sustained grievous injuries and whose leg was amputated was immediately removed to the hospital in the police jeep. At the

Page 9 of 61 [s 154] Information in cognizable cases.— hospital, the written FIR was lodged. Neither any steps were taken by the defence nor any question was asked to the Investigating officer with regard to the FIR. Thus no irregularity was committed in accepting the written FIR. [Garjan Sahu v State of Orissa, 2010 Cr LJ 1880 (1885) : (2010) Supp OLR 362 (Ori)].

In the instant murder case the Sarpanch informed the Police on telephone about the occurrence and the complaint was subsequently registered. Held, “Nothing has come out on record to show that the telephone vardhi was for a different case altogether than as put forwarded by the prosecution before the Court. In any case, the police vardhi is already on Government record and the defence could request the Court to examine concerned police officer as Court witness. No attempt was also made in this regard. Under these circumstances, we cannot accept the submission of the learned counsel for the appellant-accused that as telephone-vardhi has not come on record, it would make the whole case of the prosecution unreliable or noncreditworthy or, in any case, fatal so as to endure benefit to the accused”. [Ajabsinh Andarsinh Parmar v State of Gujarat, 2010 Cr LJ 3092 (3096) : (2010) 4 Crimes 329 (Guj)].

Where the offence had taken place at 7 p.m. and the informant took the deceased to the hospital where the deceased died at 7.55 p.m. and then the informant lodged report at 8 p.m. there was no delay in loading the FIR [Sheelam Ramesh v State of AP, AIR 2000 SC 118 : 2000 Cr LJ 51 : (1999) 8 SCC 369 : 1999 (4) Crimes 354 ]

Before drawing an inference that the FIR was ante-timed, some circumstances have to be shown, either from cross-examination of relevant witnesses or from material on the record, which would probabilise his ante-timing of FIR [Tulshi Ram Bhanudas Kambale v State of Maharashtra, 2000 Cr LJ 1566 : 1999 (3) Crimes 161 : 1999 (3) Bom LR 92 (Bom)].

Defamatory statement in FIR of cognizable offence is absolutely privileged [Bira Gareri v Dulhin Somaria, AIR 1962 Pat 229 : 1962 (1) Cr LJ 737 (Madhab, AIR 1939 C 477; Sanjivi, AIR 1926 M 521 relied on; Mayer, 47 Cal WN 627 and Majju, 46 A 671, FB dissented from)].

Filing FIR against children for wandering about without any means of livelihood is improper and unwarranted [Sunil Kumar v State, 1983 Cr LJ 99 : 1982 Ker LT 915 (Ker)].

Though there may be some difference between the statements which are mentioned in the first information report by complainant and those statements that are recorded by investigating officer under section 161 Code of Criminal Procedure, 1973, yet it does not make the prosecution case fabricated and concerted [Kuldip Kumar v State of HP, 1995 Cr LJ 2458 (HP)].

It is not necessary that all events in detail must be mentioned in the FIR. In a case, where a particular event’s description is not laid down in the First Information report, it would not be harmful to the prosecution case there, where rest of the facts and circumstances of the case are reliable and corroborate the prosecution story [Nilakantha Pati v State of Orissa, 1995 Cr LJ 2472 (Ori)].

Though regarding the commotion in the village like firing and brick batting, chaukidar gave a cryptic information to police station and there it was also recorded in the police diary, yet it did reveal the facts that a cognizable offence was committed, who were the assailants and who were injured in the said event. Therefore, Supreme Court held that said information can be deemed to be an FIR in the sense of section 154 Code of Criminal Procedure, 1973 [Shekh Ishaque v State of Bihar, 1995 Cr LJ 2682 SC : (1995) 3 SCC 392 : 1995 (2) Crimes 294 (SC)].

It does not make any FIR, that is, an afterthought where if the same was written in the presence of the cousin of deceased and in whose presence the extrajudicial confession of any accused was also recorded [Bagda Ram v State of Rajasthan, 1995 Cr LJ 2195 Raj].

Page 10 of 61 [s 154] Information in cognizable cases.—

Where FIR of any incident is promptly recorded, there would be no place for the statement that the alleged accused persons have been falsely implicated and prosecution case would be believable to a great extent [State of Maharashtra v Prabhu Barku Gade, 1995 Cr LJ 1432 : 1995 (2) Bom CR 188 Bombay].

Where FIR was filed against those accused persons who were named herein and allegations made also established prima facie case of an offence under sections 498A and 406 Indian Penal Code, 1860, interference by High Court would not be deemed to be justified [Tapan Kumar Mukherjee v State of WB, 1995 Cr LJ 1985 (Cal)].

When a FIR against accused petitioner was lodged, he challenged it due to business rivalry between him and the complainant. Therefore, Supreme Court passed such an order that this case is directed to be investigated by C.B.I. [Uma Shankar Sitani v Commissioner of Police, Delhi and others, 1995 Cr LJ 3612 : (1996) 11 SCC 714 ].

Where the fact concerning the place of occurrence was doubtful and no explanation of the injuries were given in FIR which were caused to the accused person during the course of incident. It was held that no order of conviction against the accused person would be deemed to be justified [Mangulu Kanhar v State of Orissa, 1995 Cr LJ 2036 Orissa].

Where the report was lodged on the following morning after incident took place, that could only be considered as the statement recorded under section 161(3) and it could not be treated as a first information report and in the view of section 162 of the Code it would not be regarded as a part of corroborative evidence. Due to said reasons it cannot be held that the evidence of witness in question would be wholly inadmissible [Ranbir Yadav v State of Bihar, AIR 1995 SC 1219 : 1995 Cr LJ 2665 : (1995) 4 SCC 392 : 1995 (2) Crimes 161 (SC)].

When names of all eye-witnesses of incident could not be recorded at the time of lodging the FIR and Court is satisfied by the evidence of investigating officer that they were not present at time of lodging the FIR, it cannot be held that prosecution’s story would be unreliable [Naresh Kumar v State, 1995 Cr LJ 1256 Delhi].

When in lodging FIR relating to an offence small omission is existing, it cannot be held that the said FIR would be unreliable from the points of view of the evidence of the informant witness [Bhaga Ram v State of Rajasthan, 1995 Cr LJ 3354 Rajasthan].

One of the prosecution witnesses, in his examination-in-chief claimed that one person had rushed into police station and informed the police that he and his party is being attacked and one of them is severely injured. Such an information was too sketchy for the police to record. It was only when the police reached the hospital that PW-3 gave a detailed report to the police. Thus, the police was justified in treating the report as FIR. The omission on the part of the police in not recording the information cannot be used to the advantage of the accused [Pooran Singh Seera v State of Rajasthan, 2011 Cr LJ 2100 (2105) (Raj)].

In the absence of any significant discrepancy in the version of prosecution in FIR and in the evidence before the Court, mere non-examination of same witnesses who were not eye-witnesses does not affect the prosecution case [Habil Mia v State of Tripura, 1997 Cr LJ 1866 : 1996 (3) Gau LR 352 (Gau)].

In a case relating to possession of assets disproportionate to known sources of income, the earlier FIR relating to same period was duly investigated into and culminated in a “B” form which was accepted by the Court. It was held that there was no provision in the Code which debarred the inclusion of the same period in the second FIR [M Krishna v State of Karnataka, AIR 1999 SC 1765 : 1999 Cr LJ 2583 : (1999) 3 SCC 247 : 1999 SCC (Cri) 397 : 1999 (1) Crimes 109 (SC)].

Page 11 of 61 [s 154] Information in cognizable cases.— [s 154.4] Supply of copy to accused.— The Apex Court while clarifying the guidelines regarding supply of copy to the accused held that copies of FIRs, except in sensitive cases like sexual offences, offences pertaining to insurgency and terrorism, should be uploaded on website within 24 hours of registration. [Youth Bar Association of India v UOI, AIR 2016 SC 4136 : 2016 (9) SCC 473 ]. [s 154.5] FIR is no encyclopaedia of facts.— The FIR allegedly did not mention the details of payment of money and dowry harassment meted out to the deceased. The Apex Court held that it is not a ground to doubt prosecution case in absence of indication of fabrication. The Court also held that FIR is not meant to be an encyclopedia nor it is expected to contain all the details of prosecution case. It may be sufficient if the broad facts of the prosecution case are stated in FIR. [V K Mishra v State of Uttarakhand, AIR 2015 SC 3043 : 2015 (9) SCC 588 ].

Where all of the necessary facts about assault on the deceased were narrated satisfactorily, the nonspecification of details like from which side the accused came is not fatal. [M G Eshwarappa v State of Karnataka, AIR 2017 SC 1197 : 2017 (4) SCC 558 ].

The non-disclosure of the names of accused persons in FIR despite witness knowing them and the nonexplanation of injuries sustained by one of accused persons are fatal to prosecution case. [Krishnegowda v State of Karnataka, AIR 2000 SC 373 : 2000 (1) SCC 306 ].

FIR is not an encyclopaedia of facts, sight cannot also be lost of the fact that the written complaint in the instant case was lodged by a rustic illiterate woman [State of WB v Bijoy Modak, 2009 Cr LJ 3895 (3899) (Cal)].

FIR is not an encyclopedia of the entire case and need not contain all the details. It is only a starting point of the investigation [State Through Reference v Ram Singh, IV (2014) CCR 174 (Del) : 212 (2014) DLT 99 (Del) (Nirbhaya rape case)]. Non-mention of name of co-accused who was an eye-witness by informant not fatal to prosecution case [Rotash v State of Rajasthan, 2007 Cr LJ 758 (SC) : 2006 12 SCC 64 ]. [s 154.6] First information report based on C.D.— First information report based on C.D. news report involving a minister and his P.A. in sex orgy was lodged but during investigation when C.D. was recovered it was found interpolated. Therefore, another first information report against editor of news paper for forgery and publishing news item on basis of interpolated C.D. was filed. It was held that filing of first information report is not barred and nor it was premature. Interference under Article 226 of Constitution was denied [Bhimsen Garg v State, 2006 Cr LJ 3643 (Raj) : 2006 (3) Raj LW 2411 : 2006 (3) Raj LR 132 : 2006 (4) WLC 579 ]. [s 154.7] Information in regard to commission of cognizable offence—Duty of Police.— When an information is received by an officer-in-charge of Police Station, he is expected to reach the place of occurrence as early as possible. It is not necessary for him to take that step only on the basis of a first information report. Duty of the State to protect the life of an injured as also an endeavour on the part of the responsible Police Officer to reach the place of occurrence is his implicit duty and responsibility [Animireddy Venkata Ramana v Public Prosecutor, 2008 Cr LJ 2038 (2042) (SC) : AIR 2008 SC 1603 : (2008) 5 SCC 368 : 2008 (2) SCC (Cri) 600 ]. [s 154.8] Doubt in filing FIR—Effect.— Steps were taken by the defence to summon, the station diary which was not produced despite several opportunities given to the prosecution. The prosecution did not examine the officer who allegedly recorded the statement of informant. Non-production of the Station diary and non-examination of the concerned ASI, are, therefore, fatal to the prosecution. Conviction of accused is liable to be set aside [Sarju Ghasel v State of Bihar, 2006 Cr LJ 1885 (1888) (Jhar)]. [s 154.9] Inquest report not bearing number of FIR—Effect.— The plea that the inquest report did not bear number of FIR indicated that FIR was not recorded at the time

Page 12 of 61 [s 154] Information in cognizable cases.— indicated, was held untenable. [Fahim Khan v State of Bihar, now Jharkhand, 2011 Cr LJ 3352 (SC) : 2011 (13) SCC 147 ]. [s 154.10] Information to police of commission of cognizable offence — If condition precedent.— Normally a person should invoke the provisions of section 154 of the Code before he takes recourse to the power of the Magistrate competent to take cognizance under section 190 of the Code, under section 156(3). At least an intimation to the police of commission of a cognizable offence under section 154(1) would be a condition precedent for invocation of powers of the Magistrate under Section 156(3) of the Code. To add here is that this dictum of law is not free from exception. There can be cases where non-compliance to the provisions of Section 154(3) would not divest the Magistrate of his jurisdiction in terms of Section 156(3). There could be cases where the police fail to act instantly and the facts of the case show that there is possibility of the evidence of commission of the offence being destroyed and/or tampered with or an applicant could approach the Magistrate under Section 156(3) of the Code directly by way of an exception as the legislature has vested vide discretion in the Magistrate. [Panchabhai Popatbhai Butani v State of Maharashtra, 2010 Cr LJ 2723 (pp 2751, 2752) : (2010) 112 Bom LR 427 : (2010) 1 Mh LJ 421 (Bom)]. [s 154.11] Counter information complaint.— By the other party after information has been lodged by one party comes under section 154 and is not hit by section 162 [Azimady, 54 C 237 : 28 Cr LJ 99; Thata Ramakrishnayya v State, AIR 1954 Mad 442 : 1954 Cr LJ 610 : 1953 (2) Mad LJ 425 : 1954 Mad WN 41; see Osman, AIR 1930 C 130]. If after A gives first information against B of some offences, B during investigation charges A of commission of other offences, B’s statement can be treated as FIR [Afiladdin, 58 Cal WN 515]. Admissibility of FIR holds good in cross cases [Ramanibal, AIR 1959 Tri 17 ].

If the law laid down by the Supreme Court in Antony v State of Kerala, AIR 2001 SC 2637 : 2001 AIR SCW 2571 is to be accepted as holding a second complaint in regard to the same incident filed as a counter complaint is prohibited under the Code then, such conclusion would lead to serious consequences This will be clear from the hypothetical example given herein below ie if in regard to a crime committed by the real accused he takes the first opportunity to lodge a false complaint and the same is registered by the jurisdictional police then the aggrieved victim of such crime will be precluded from lodging a complaint giving his version of the incident in question consequently he will be deprived of his legitimate right to bring the real accused to books. This cannot be the purport of the Code from the observations found in the said judgment; it clearly indicates that filing a counter complaint is permissible [Upkar Singh v Ved Prakash, 2004 Cr LJ 4219 : AIR 2004 SC 4320 : AIR All LJ 3436 : 2004 (4) Crimes 20 (SC); Yanab Sheikh v State of WB, (2013) 6 SCC 428 : 2012 (12) Scale 730 ].

If the concerned police station has refused to report a counter-complaint; it is open to the Magistrate at any stage to direct the police to register the complaint and investigate the same. Such a direction would not be hit by section 162, Code of Criminal Procedure, 1973 [Upkar Singh v Ved Prakash, 2004 Cr LJ 4219 : AIR 2005 SC 4320 : 2005 SCC (Cri) 211 : 2004 (4) Crimes 20 ]. [s 154.12] Who can lodge FIR.— FIR can be lodged by the complainant or by any other person knowing about the commission of such an offence [Bijoy Singh v State, AIR 2002 SC 1949 : 2002 Cr LJ 2623 : (2002) 9 SCC 147 : 2002 (2) Crimes 437 ; Gopal v State, (2002) 9 SCC 744 ].

The intention of the legislature in the matter of theft of electricity anybody can lodge an FIR. Even otherwise also, if a cognizable offence is disclosed every individual has a right to lodge an FIR under section 154 of the Code [Mahendra Kumar Verma v State of UP, 2011 Cr LJ 213 (214) : (2011) 2 Crimes) 691 (All)]. [s 154.13] FIR by accused.— To the police stands on the same footing as an information by another person except that the confessional part, if any, must be excluded [see sections 25, 26 Evidence Act ; Mohammada v Emperor, AIR 1948 Lah 19 : (1947) 48 Cr LJ 961 : 49 Punj LR 182; Bharosa, AIR 1941 N 86; Gopal Das Shivalomal v Emperor, AIR 1945 Sind 132 : (1946) 47 Cr LJ 159 ; Dal Singh, 44 IA 137 : 44 C 876; Bodhan v Emperor, AIR 1948 All 223 : (1948) 49 Cr LJ 436 : 1947 All LJ 673 : 1948 All WR 12; Lalit, 25 Cal WN 788]; but there is no bar to a confession in an FIR being used in favour of the accused, Lal Khan v Emperor, AIR 1948 Lah 43 : (1947) 48 Cr

Page 13 of 61 [s 154] Information in cognizable cases.— LJ 977 ]. The Privy Council observed that it is important to compare the story told by the accused at the trial with what he said in his report to the police as FIR. The report is clearly admissible; it is in a sense a confession and as such it is evidence against him [Dal Singh, 44 IA 137 : AIR 1917 PC 25 ; 44 C 876]. When the person lodging an FIR is subsequently accused of the offence, it is an admission of certain facts which have a bearing on the question to be determined by the Court. Not being a confession, nor a statement made to a police officer in the course of investigation, its admissibility is not barred either by section 25 or section 162 Code of Criminal Procedure, 1973 [Faddi v State of MP, AIR 1964 SC 1850 : 1964 (2) Cr LJ 744 ].

When the accused himself gives the first information, the fact of his giving the information is admissible against him as evidence of his conduct under section 8 of the Evidence Act. If the information is not confessional, it is admissible against the accused as an admission under section 21 of the Evidence Act and is relevant. [Aghnoo Nagesia v State of Bihar, AIR 1966 SC 119 : 1966 Cr LJ 100 (SC) (Faddi v State of MP, AIR 1964 SC 1850 : 1964 (2) Cr LJ 744 ; Nisar Ali v State of UP, AIR 1957 SC 366 : 1957 Cr LJ 550 ; Dal Singh, 44 IA 137 : AIR 1917 PC 25 relied on); Bhim Singh v State of Rajasthan, 1995 SCC Cr R 40; Bheru Singh v State of Rajasthan, (1994) 2 SCC 467 : 1994 SCC (Cri) 555 : 1994 (1) Crimes 630 (SC)]. But a confessional first information by the accused to a police officer cannot be used against him in view of section 25 of the Evidence Act. No part of the confessional statement is receivable in evidence except to the extent that the ban of section 25 is lifted by section 27 of the Evidence Act. The test of severability, namely that if a part of the report is properly severable from the strict confessional part, then the severable part can be tendered in evidence is misleading. The entire confessional statement is hit by section 24, and save and except as provided by section 27 and save and except the formal part identifying the accused as the maker of the report, no part of it can be tendered in evidence [Aghnoo Nagesia v State of Bihar, AIR 1966 SC 119 : 1966 Cr LJ 100 ; see also Brajendrasingh v State of Madhya Pradesh, AIR 2012 SC 1552 : (2012) 4 SCC 289 : (2012) 2 SCC (Cri) 409 ]. In case the information given by the accused is confessional in character, it has to be looked into to decide whether any part of it would be admissible as first information setting the criminal law in motion [Phillips v State of Karnataka, 1980 Cr LJ 171 : 1980 Mad LJ (Cri) 129 : ILR (1979) 2 Kant 2170 (Kant); Aghnoo, supra; Nishikanta Jha v State of Bihar, AIR 1969 SC 422 : 1969 Cr LJ 671 : (1969) 1 SCC 347 (SC); Khatri Hemraj Amulaksh v State of Gujarat, AIR 1972 SC 922 : 1972 Cr LJ 626 : (1972) 3 SCC 671 ; Keshoram Bora v State of Assam, AIR 1978 SC 1096 : 1978 Cr LJ 1089 : (1978) 2 SCC 407 (relied on)]. If the FIR by the accused contains facts relating to motive, preparation and opportunity to commit the crime it is impossible to say that such portion can be treated as no part of the confession [Harnam, AIR 1935 B 26 : Ram Sajiwan v State of UP, AIR 1964 All 447 : 1964 (2) Cr LJ 372 : 1964 All LJ 285 : 1965 All WR 9; see Sarkar’s Evidence Act , 13th Edn, p 294]. The relationship of accused with the deceased; motive for commission of crime and presence of his sister-in-law do not amount to the confession of committing any crime. Those statements are non-confessional in nature and can be used against the accused as evidence under section 8 of the Evidence Act. Production and seizure of sword by accused at the police station, which was blood stained, is also saved by the provisions of the Evidence Act. However, the statement that the sword had been used to commit murders as well as manner of committing crime is clearly inadmissible in evidence. Thus, to such limited extent and save to that extent only the other portion of the first information report must be excluded from evidence as the rest of the statement amounts to confession of committing the crime and is not admissible in evidence [Bheru Singh v State of Rajasthan, 1994 (2) SCC 467 : 1994 (1) Crimes 630 (SC)]. A statement by an accused implicating himself and others is not a FIR [Subedar, AIR 1942 A 207]. A person before being made an accused stated to the police that while a thief was surprised in his act, the latter attacked him with a deadly weapon and he fired in self-defence killing the thief. It was not a FIR as he having exonerated himself completely there was no information of commission of a cognizable offence [Jasoda Halder v Sailendra Nath Somanta, AIR 1957 Cal 372 : 1957 Cr LJ 707 : 61 Cal WN 483]. [s 154.14] Not an FIR.— The following are not FIR :—Statement recorded after commencement of investigation and four days after the original information [Kampu, 11 Cal WN 554]; Statement of witnesses subsequently recorded by investigating officer at place of occurrence [Deo Pujan Thakur v State of Bihar, 2005 Cr LJ 1263 (Pat)]. Statement recorded by officer in charge on the basis of his personal knowledge four days after the original information [Abdul Hamid v State Tripura, AIR 1958 Tri 1 : 1958 Cr LJ 97 ]. Statement by a witness during investigation, especially when Chowkidar had already reported [Chittar, 47 A 280; Gajadhar, AIR 1930 O 99]; Statements of information to the police after investigation has commenced [Habib, AIR 1928 P 634; Gansa, 2 P 517; Moti Singh v Emperor, AIR 1948 All 289 : (1948) 49 Cr LJ 367 : 1948 All LJ 53 : 1948 All WR 71; Jainand (Dr.) v Rex, AIR 1949 All 291 : (1949) 50 Cr LJ 498 : 1949 All LJ 60 : 1949 All WR 13; Sultan, AIR 1925 R 364; Supdt. and Remembrancer of Legal Affairs State of WB v Ram Ajodhya Singh, AIR 1965 Cal 348 : 1965 (2) Cr LJ 79 ]; A ruqa sent by police officer from spot during investigation embodying substance of complainants report made previously [Choghatta,

Page 14 of 61 [s 154] Information in cognizable cases.— AIR 1926 L 179]; Report by a police officer to his superior that he has been told that certain persons were going to commit dacoity [Biram, AIR 1941 B 146]. See Sarkar’s Evidence, 13th Edn, pp 1413–15.

Statement in the form of “Ejahar” which was taken on record by the trial Court as the FIR was received by the police after the investigation had already commenced. Held, the statement in the form “ejahar” could not have been treated inasmuch as that FIR was lodged after the police investigation had already started inasmuch as the police on being orally informed about the occurrence, had already visited the place of occurrence and inquest over the dead body had been held [Benu Namasudra v State of Tripura, 2010 Cr LJ 781 (788) (Gau) : 2010 (1) Gau LR 296 ].

Mere information to the Police that the victim has been gang raped without disclosing any clue of the accused persons was held as not being FIR [Mahesh Mahadeo Kamble v State of Maharashtra, 2002 Cr LJ 1297 (pp 1304, 1305) (Bom) : 2002 (1) Bom LR 338 : 2002 All MR (Cri) 1636].

Where message entered in the rojnamcha was a cryptic and unauthenticated information, it could not be treated as FIR [Ummed Singh v State of Rajasthan, 2003 Cr LJ 3632 : 2003 (3) Raj LR 162 : 2003 (4) Raj LW 2290 : 2003 (3) WLC 465 (Raj)].

In the instant case in General Diary Entry it was simply indicated that an information was received over the Radio Telephone that a dacoity was committed in the house of informant. Practically it was a message indicating that a probe was to be made as regards information given over the Radio Telephone. The information was not in the nature of a complaint nor there was sufficient materials to take up the investigation of the case as its basis. It was held that the said information could not be treated as FIR [Raghunath Dey v State, 2003 Cr LJ 4592 (Cal)].

Stray statement made by mother of victim to effect that statement of prosecutrix was recorded by Head Constable would not establish that Head Constable had visited house of prosecutrix and recorded her statement before she had lodged complaint. It is not established that Head Constable was police officer in charge of Police Station. Nor it is established that information gathered by him was entered into a register maintained at the Police Station—Such a statement even if recorded would not constitute “First Information Report” within meaning of section 154 [Dalwadi Govindbhai Amarsinghbhai v State of Gujarat, 2004 Cr LJ 2767 : 2004 (2) Guj LR 1285 : 2004 (2) Guj LH 680 (Guj)].

Where the son of the deceased narrated the occurrence to chaukidar who narrated the same to I.O., but the FIR was not recorded, the subsequent fardbeyan of the son of the deceased would not be treated as FIR being hit by section 162, Code of Criminal Procedure, 1973 [Birsa Ahir v State of Bihar, 2004 Cr LJ 4773 (4775, 4776) (Jhar) : 2004 (2) JLJR 122 : 2004 AIR Jhar HCR 2758].

It was held that the information which is sent by means of telephone to police station cannot be regarded as a first information report [Savia v State of Rajasthan, 1995 Cr LJ 2744 Raj; Vishnu Dutta Soni v State of Rajasthan, 2006 Cr LJ 1061 (Raj)]. If in any case, by means of telephone regarding the incident a message is sent to police station, such message would not be regarded as First Information [Mukesh alias Muki v State, 1995 Cr LJ 1769 (Del)]. Vague information supplied on phone call cannot be termed as FIR [Sukhdev v State of Rajasthan, (2002) 1 WLC 455 : 2002 Cr LJ (NOC) 71 : 2002 (2) Raj Cr C 923 (Raj).

When Vandi (Yadi) received from medical officer by the concerned Police Station appears to be cryptic though first in point of time cannot be treated as FIR. Dineshbhai v State of Gujarat, 2006 Cr LJ 4789 (4795) (Guj).

Where some cryptic or anonymous oral message which did not in terms clearly specify a cognizable offence cannot be treated as an FIR. The mere fact that the information was the first in point of time does not by itself clothe it with the character of FIR. A cryptic telephonic message of a cognizable offence received by the police

Page 15 of 61 [s 154] Information in cognizable cases.— agency would not constitute an FIR [State of AP v VV Panduranga Rao, 2009 Cr LJ 2972 (2974) (SC) : AIR 2009 SC 2446 : 2009 AIR SCW 4558].

Telephonic information to Police Station about cognizable offence without mentioning the names of the assistants and investigation started on its basis, would be treated as FIR [Sunil Kumar v State of MP, AIR 1997 SC 940 : 1997 Cr LJ 1183 : (1997) 10 SCC 570 : 1997 (1) Crimes 238 (SC)]. Entry first in point of time but lacking in detailed particulars, cannot be treated as an FIR [Sham v State of Maharashtra, 1997 Cr LJ 581 : 1997 (1) Mah LJ 337 (Bom)].

Mere Telephonic message received by police regarding commission of offence of murder not disclosing name of informant cannot be termed as an FIR [Munna v State of Rajasthan, 2001 Cr LJ 4127 : 2001 (3) WLC 700 (Raj)].

Cryptic telephonic message with the object of informing police to rush to scene of occurrence cannot be treated as FIR [Dhananjay Chatterjee v State of WB, (1994) 2 SCC 220 : 1994 SCC (Cri) 358 ].

Cryptic Message recording an occurrence cannot be termed as FIR. [Patai v State of UP, 2010 Cr LJ 2815 (2817) : AIR 2010SC 2254 : (2010) 4 SCC 429 ; Sidhartha Vashisht v State (NCT of Delhi), AIR 2010 SC 2352 : (2010) 6 SCC 1 ].

Entry in G.D. that an unknown person had given information about the hitting of the accused by a vehicle would not be treated as an FIR [Damodar v State of Rajasthan, AIR 2003 SC 4414 : 2003 Cr LJ 5014 (5018) SC : 2003 (4) Crimes 98 ].

In a case by telephonic message the police had received this much information that between village M and I from dead bodies were lying but informant did not disclose names and other details. Such information was recorded in daily diary. Held, message so received was vague, cryptic and indefinite and did not satisfy requirements of section 154, Code of Criminal Procedure, 1973 [Deepak Verma alias Nawab v State of MP, 2003 Cr LJ 94 (97) : 2002 CrLR (See MP) 288 : 2002 (2) Cur Cr R 413 MP].

Vardhi received by P.S.O. disclosing commission of cognizable offence by unknown persons cannot be treated as FIR. It can, however, be used in favour of accused because no names of accused were disclosed in it. Statement of injured witnesses recorded by the Head Constable at hospital on the basis of said Vardhi can be treated as FIR which was recorded at the earliest point and which gave full details of commission offence and unknown assailants [State of Gujarat v Rajubhai Dhamirbhai Banya, 2004 Cr LJ 771 : 2004 (1) Guj LR 404 : 2004 (2) Cur Cr R 235 : 2004 (1) Guj LH 262 (Guj)].

If the telephonic message is cryptic in nature and the officer-in-charge proceeds to the place of occurrence on the basis of that information to find out the details of the nature of the offence itself, then the telephonic message cannot be said to be FIR. If the information given on telephone is not cryptic and on the basis of that information, the officer-in-charge is prima facie satisfied about the commission of a cognizable offence and he proceeds from the police station, after recording such information, to investigate such offence, the information will be treated as an FIR and any statement made by any person in respect of the said offence, shall, be deemed to be a statement made by the person to the police officer “in course of the investigation”, covered by section 162 [Ramsinh Bavaji Jadeja v State, (1994) 2 SCC 658 (para 7) : (1994) 2 SCJ 143 : 1994 Cr LJ 3067 : 1994 (1) Crimes 729 (SC); Vishnu Dutta Soni v State of Rajasthan, 2006 Cr LJ 1061 (Raj)].

Cryptic information at police station to the effect that there was commotion in village as firing and brickbatting was going on without disclosing commission of cognizable offence and recorded in police diary was not treated as an FIR [Sheikh Ishaque v State of Bihar, 1995 Cr LJ 2682 : (1995) 3 SCC 392 : 1995 (2) Crimes 294 (SC); State of Karnataka v Ramappa Bhimappa Kattimani, 2006 Cr LJ (NOC) 446 (Kant) : 2006 (4) AIR Kant R 350].

Page 16 of 61 [s 154] Information in cognizable cases.—

Mere telephonic message to police informing about any fighting cannot be treated as FIR [Goverdhan Lal v State, 2004 Cr LJ 3966 : 2004 (4) All CrLR 624 (Raj)].

Where some unknown persons informed station House Officer over telephonic that murders were committed in the village, the information being cryptic could not be termed as FIR [Ishwar Singh v State of Rajasthan, 2004 Cr LJ 3145 : 2004 (2) Raj LW 1344 : 2004 (3) Raj Cr C 1192 : 2004 (2) WLC 363 (Raj)].

Telephonic message sent to police station in respect of incident that there was quarrel and one person was stabbed with knife. Police was apprised with situation by some unknown person. The message was noted in Roznamcha in cryptic manner. It was held that the message could not be treated as FIR [2003 Cr LJ NOC 39 A (Raj)].

In a case, where telephonic message about incident was given by constable on night patrol duty and the constable mentioned that three persons assaulted deceased and requested to send police force, it was held that the information was not an FIR but merely an entry made regarding departure of police personnel to place of occurrence [Thaman Kumar v State of Union Territory of Chandigarh, AIR 2003 SC 3975 : 2003 Cr LJ 3070 : (2003) 6 SCC 380 : 2003 (3) Crimes 86 (SC)]. [s 154.15] Inquest request, when can be treated as FIR.— The police on receipt of the telephonic message visited the P.O. and held inquest. When the telephonic conversation was cryptic information, it could not be treated as FIR. In the circumstance the inquest report could be treated as FIR. But in the given case, the case-diary revealed that the fardbeyan statement was recorded earlier and inquest later. In the circumstance, inquest could not be treated as FIR [Mundrika Mahto v State, AIR 2002 SC 2042 : 2002 Cr LJ 2810 : (2002) 9 SCC 183 : 2002 (2) Crimes 355 (SC)]. [s 154.16] “Officer in charge of police station”.— [See section 2(a)]. Assistant sub-inspector on duty is not so within the meaning of section 154 [Momin, AIR 1928 C 771]. Information to the village Magistrate passed on to police station and recorded is FIR [Venkatarayudu, 22 M 565]. Value of information given to head-constable in charge of police out-post [Kaku, AIR 1944 SC 33 ]. Report to Tehsildar is not FIR [Nardeo Singh v State, AIR 1953 All 726 : 1953 Cr LJ 1677 : 1953 All LJ 408 : 1953 All WR 399]. In UP an Inspector of Police in the CID is superior to an officer in charge of a police station and his jurisdiction extends throughout the State. He can exercise the powers of an officer in charge of a police station under section 36 [Textile Traders Syndicate Ltd v State of UP, AIR 1959 All 337 : 1959 CrLR 668 : All LJ 245 : 1958 All WR 837]. In Maharashtra by a Home Department notification, any officer of and above the rank of police sub-inspector of anti-corruption is deemed to be an officer-in-charge of the police station of the place where investigation is made [Vishnu Krishna v State of Maharashtra, 1975 Cr LJ 517 FB : 76 Bom LR 627 : 1974 Mah LJ 789 (Bom); see comments under section 2].

From the perusal of the provisions made in sections 154 and 156 Code of Criminal Procedure, 1973 there is no doubt in it that police has legal right to investigate the cases of cognizable offences and herein there is no need of taking sanction from the Government [A Nallasivan v State of TN, 1995 Cr LJ 2754 (Mad)]. [s 154.17] FIR to superior police officer.— For example,, a statement by Superintendent of Police should either be recorded by himself (section 36) or the information should be sent to the Thana officer for its record [JK Devaiya v State of Coorg, AIR 1956 Mys 51 : 1956 Cr LJ 904 : ILR (1956) Mys 118 ]. Section 154 does not say that information of a cognizable offence can only be given to an officer-in-charge of a police station. Where the Additional IG of police after getting a complaint from the Chief Minister sent it to the Deputy Superintendent of Police CID who along with others investigated the matter, no procedure unknown to law was adopted in view of section 36 [RP v Sardar Pratap Singh Kairon, AIR 1961 SC 1117 : 1961 (2) Cr LJ 161 : 1961 (2) SCR 143 ]. In the instant case, written complaint was sent by the petitioner who is a practising Chartered Accountant to the Commissioner of Police. It was very specific and replete with requisite information regarding commission of cognizable offence. Accordingly in such circumstances, the same ought to have been reduced into the book maintained for recording of information relating to the commission of a cognizable offence in terms of section 154 of the Code

Page 17 of 61 [s 154] Information in cognizable cases.— [Sudhir M Vora v Commissioner of Police for Greater Bombay, 2004 Cr LJ 2278 : 2004 All MR (Cri) 2745 : 2004 (3) All CrLR 646 (Bom)].

When the written complaint sent by the petitioner to the Commissioner of Police related to the commission of cognizable offence against police officers, Commissioner of Police having regard to the fact that serious allegations had been made against the police officers, should ensure that the complaint was investigated by an independent agency, such as DCP CID [Sudhir M Vora v Commissioner of Police for Greater Bombay, 2004 Cr LJ 2278 : 2004 All MR (Cri) 2745 : 2004 (2) Cur Cr R 469 (Bombay)].

Any subsequent complaint or information received by the Police during the course of investigation cannot be treated as an FIR in respect of that particular incident [Narasimhaiah v State of Karnataka, 2002 Cr LJ 4795 (4802) : 2002 (3) Crimes 704 (Kant) : 2002 (2) Kant LJ 408 ]. [s 154.18] Reduced to writing and signed.— The conditions as to writing are merely procedural. If there is an information of a cognizable offence it is within section 154 even if the police officer has neglected to record it in accordance with law [Monomohan, 35 Cal WN 623, p 628; AW Khan v State, AIR 1962 Cal 641 : 1962 (2) Cr LJ 751 ; see Sahed Ali, 38 Cr LJ 1067].

Where the constable at the police station refused to record the complaint on the ground of lack of territorial jurisdiction over the place of crime, it was held that it was certainly a dereliction of duty on the part of the constable because any lack of territorial jurisdiction could not have prevented him from recording information about commission of a cognizable offence and forwarding the same to the police station having jurisdiction over the area [State of AP v Punati Ramulu, AIR 1993 SC 2644 : 1993 Cr LJ 3684 : 1994 Supp (1) SCC 590 : 1994 SCC (Cri) 734 (SC)]. Absence of signature of the informant will not vitiate and nullify the FIR [Khan, supra]. Failure to observe the procedure does not make the former statement inadmissible, it merely renders it more difficult to prove [Mir Rahman, AIR 1935 Pesh 165 ]. In respect of offence committed in the presence of the investigating officer himself, he is not bound to take down any information given [Jayantilal, 45 Cr LJ 691].

Under section 154 as well as rule 24.1 of the Punjab Civil Service Rules 1934, vol III what is required to be mentioned in the daily diary is substance of the information received and same cannot be said to be repository of everything. If the names of witnesses have not been mentioned, it cannot be said that substance of information received was not entered and there was violation of section 154 read with rule 24.1 of the aforesaid rules [Gurpeet Singh v State of Punjab, 2006 Cr LJ 126 (129) (SC) : 2005 (4) Crimes 230 : AIR 2006 SC 191 : (2006) 1 SCC (Cri) 191 ].

Because statements have been signed contrary to section 162, they do not thereby become statements under section 154 [Narayan, 25 Cr LJ 401]. [s 154.19] Refusal to sign (section 180 IPC).— Whoever refuses to sign any statement made by him, when required to sign that statement by a public servant legally competent to require that he shall sign that statement, shall be punished with simple imprisonment for a term which may extend to three months, or with fine which may extend to five hundred rupees, or with both.

Where an information related to a cognizable offence was given to police station in which highly posted officials were involved, in such circumstances that information must be lodged as an FIR and the signature of the said informant must be taken on the information which needed to be written by himself [A Nallasivan v State of TN, 1995 Cr LJ 2754 Mad].

Where the complainant submitted the written complaint to the station officer immediately when he reached the police station and it was registered as an FIR, it was held that it could not be said that the written complaint was not an FIR [Uphari Venkataswamy v Public Prosecutor, 1996 SCC (Cri) 284 : (1996) 7 SCC 232 ].

Page 18 of 61 [s 154] Information in cognizable cases.— FIR and statement under section 161, Code of Criminal Procedure, 1973. Distinction. [See 2010 Cr LJ (NOC) 624 (Jhar) : 2010 (1) AIR JharR 671]. [s 154.20] FIR or statement recorded during investigation.— Investigating officer in the instant case, did not deliberately record the FIR after receipt of information of cognizable offence and registered the complaint as the FIR after reaching the spot and after due deliberations, consultations and discussion. It was held that the complaint could not be treated as an FIR and that it would be statement made during investigation and hit by section 162, Code of Criminal Procedure, 1973 [State of AP v Punati Ramulu, AIR 1993 SC 2644 : 1993 Cr LJ 3684 : 1994 SCC (Cri) 734 : 1994 Supp (1) SCC 590 (SC)]. Where FIR has not been lodged — The statement, of the prosecutrix recorded at the Police Station, would be treated as FIR and not statement under Section 161, Code of Criminal Procedure, 1973 [Makala Raji Reddy v State of AP, 2002 Cr LJ 3407 (3413) (AP) : 2002 (1) Andh LT (Cri) 306 : 2002 (3) Rec CrR 6]. [s 154.21] Oral complaint recorded by Investigating Officer.— In the instant case, the Investigating officer recorded the oral complaint of the informant and he obtained the signature of the informant, on the recorded complaint after ascertaining its correctness from the informant. The said recorded complaint was treated as FIR in the case. It was held that in the facts and circumstances of the case, the Investigating Officer could not be considered as an informant who lodged the complaint which was treated as FIR and accordingly the investigation made by the Investigating Officer could not be considered as a tainted investigation and not an impartial one [Nantulal Biswas v State of Tripura, 2010 Cr LJ 501 (506) (Gau) : 2010 (1) Gau LR 647 ]. [s 154.22] Proof of FIR.— Prosecution is bound to produce the FIR [Raja, AIR 1924 L 519; Ouseph Varkey v State of Kerala, AIR 1957 Ker 153 : 1957 Cr LJ 1132 : 1957 Ker LT 526 : 1957 Mad LJ (Cri) 418]. Ordinarily it is the duty of the prosecution to put information in the FIR. It has to be proved like any other document and it is usual to call the informant for the purpose [Azimuddy, 54 C 237; Md Shaikh, AIR 1943 C 74 : Inchan, AIR 1934 C 647; Mahla, AIR 1931 L 38; Gajjan, AIR 1931 L 103; Kapur, AIR 1930 L 450; Kuthu Goala v State of Assam, 1981 Cr LJ 424 (Gau)]. The defence should not be debarred from using the FIR merely because the prosecution did not formally prove it [Sheo Pd, 39 Cr LJ 917]. When the first information orally given is reduced to writing by a person and is signed by the informant, the handwriting of the former and the signature of the latter have both to be proved. Mere countersignature of the document by the police officer in charge does not prove the hand writing of the document [Miyana Hasan Abdulla v State of Gujarat, AIR 1962 Guj 214 : 1962 (2) Cr LJ 55 : (1962) 3 Guj LR 107]. FIR attracts the operation of section 35 Evidence Act even though not signed by the informant [Chittar, 47 A 280; Ratanchand Radhakisondas v State, AIR 1960 Bom 146 : 1960 Cr LJ 461 : 60 Bom LR 1161; Miyana, supra; Badaruddin, 50 Cal WN 531; Saknaralinga, 53 M 590]. Even if the FIR is not proved it would not be a ground for acquittal, but the case would depend upon the evidence led by the prosecution. Therefore the non-examination of the informant cannot affect the prosecution case [Krishna Mochi v State, AIR 2002 SC 1965 : 2002 Cr LJ 2645 : (2002) 6 SCC 81 : 2002 (2) Crimes 236 ]. [s 154.23] Entry in general or station diary.— The General Diary is a record of all important transactions/events taking place in a police station, including departure and arrival of police staff, handing over or taking over of charge, arrest of a person, details of law and order duties, visit of senior officers etc. It is in this context that gist or substance of each FIR being registered in the police station is also mentioned in the General Diary since registration of the FIR also happens to be a very important event in the police station. The registration of an FIR is to be done in FIR book or FIR Register. In addition, the gist of the FIR or the substance of the FIR may also be mentioned simultaneously in the General Diary as mandated in the respective Police Act or Rules under the relevant State provisions. In case, there is any inconsistency between the provisions of section 154 of the Code and section 44 of the Police Act, 1861, with regard to the fact as to whether the FIR is to be registered in the FIR book or in the General Diary, the provisions of section 154 of the Code will prevail and the provisions of section 44 of the Police Act, 1861 (or similar provisions of the respective corresponding Police Act or Rules in other respective States) shall be void to the extent of the repugnancy. Thus, an FIR is to be recorded in the FIR Book, as mandated under section 154 of the Code, and it is not correct to state that information will be first recorded in the General Diary and only after preliminary inquiry, if required, the information will be registered as the FIR [Lalita Kumari v Govt of UP, AIR 2014 SC 187 : (2014) 2 SCC 1 : 2014 Cr LJ 470 (SC)].

Where an entry in the general diary discloses the commission of a cognizable offence, it can be treated as an

Page 19 of 61 [s 154] Information in cognizable cases.— FIR in appropriate circumstances. The entry in question disclosed the prima facie commission of an offence under the Prevention of Corruption Act, 1988. The Supreme Court said that it could be treated as an FIR. It could not be discarded as vague only because it did not carry full details of the offence. The entry gave rise to a suspicion that a cognizable offence might have been committed. The police officer could intercept the accused and investigate the case. The Court observed generally that the FIR need not disclose all the facts and details relating to the offence reported. The true test for a report to be regarded as an FIR is that the police officer should be able to get a reason to suspect the commission of an offence which he is entitled to investigate [Superintendent of Police CBI v Tapan Kr Singh, AIR 2003 SC 4140 : 2003 Cr LJ 2322 : (2003) 6 SCC 175 : 2003 SCC (Cri) 1305 : 2003 (2) Crimes 300 ]. The General Diary entry can be termed as the FIR concerning the incident. The first information report must disclose the commission of a cognizable offence and the information so lodged must provide a basis for the police officer to suspects the commission of a cognizable offence. It is not necessary that he must be convinced or satisfied that a cognizable offence has been committed [Abdul Sufan v State of Tripura, 2010 Cr LJ 805 (811) (Gau) : 2010 (4) Gau LR 408 ]. Omission to enter is not an illegality vitiating the trial, but it would have an important bearing if the date was in question [Hafiz, AIR 1931 P 150]. Entry has to be proved like any other writing by calling the writer [Shwe Pru, AIR 1941 R 209]. If the whole of the complaint or information given is subsequently entered in the prescribed book that would not make it a complaint, as the record in the book is to be made in the second stage [Miyana, supra]. Under a standing order in Madras when details are given in the FIR book and case diary, there need be no record in the General Diary [Re : Subbaratnam, AIR 1949 Mad 663 : 1949 (1) Mad LJ 152 : (1949) 50 Cr LJ 950 ]. Entry is not substantive evidence, it can only be used for corroborating or contradicting the informant and no others [Kalumandal v State, AIR 1950 Cal 412 : (1950) 51 Cr LJ 1507 : 85 Cal LJ 196]. The Magistrate may at any time call for and inspect the Diary.

Mere non-disclosure of the names of the witnesses in the daily diary as well as mortuary register, ipso facto cannot affect the prosecution case more so, when their names have been disclosed in the FIR itself [Gurpeet Singh v State of Punjab, AIR 2006 SC 191 (194) : 2006 Cr LJ 126 : 2005 (4) Crimes 230 : (2006) 1 SCC (Cr) 191].

In the instant case (as to commission of murder by strangulation) there was no inordinate delay. The material particulars mentioned in the FIR (as to how the offence was committed) were substantiated by the testimony of eye-witnesses. Their testimony was corroborated by medical evidence and was found reliable. Hence, the delay in filing the FIR was of no consequence and the offence was proved beyond reasonable doubt against some of the accused [Zahoor v State of UP, AIR 1991 SC 40 : 1991 Cr LJ 56 : 1991 SCC (Cri) 678 : 1990 (30 Crimes 556 (SC)].

No general and wide proposition of law can be formulated that whenever there is inordinate delay on the part of the investigating agency in completing the investigation, such delay ipso facto would provide a ground for quashing the First Information Report or the proceedings arising therefrom [State of AP v PV Pavithran, AIR 1990 SC 1266 : 1990 Cr LJ 1306 : (1990) 2 SCC 340 :1990 (2) Crimes 40 (SC)] [Per S Ratnavel Pandian and K Jayachandera Reddy JJ].

Delay in giving the FIR by itself cannot be a ground to doubt the prosecution case. In the instant case, the names of the accused were consistently mentioned throughout. There was absolutely no ground to hold that the FIR was brought into existence subsequently during the investigation and the mere delay in lodging the report by itself could not give scope for an adverse inference leading to rejection of the prosecution case outright. The evidence of eye-witnesses was consistent and corroborated by medical evidence. There was no inordinate and unexplained delay in filing FIR [Tara Singh v State of Punjab, AIR 1991 SC 63 : 1990 Cr LJ 2681 : 1990 (3) Crimes 565 (SC)].

In a case of abatement of suicide there was a delay in filing the FIR—Deceased was a newly married girl— Information of incident was given to the father of the deceased in the evening—The father with his family rushed to the hospital where the deceased was taken. He stayed there throughout the night and also on the next day till the body of the deceased was handed over. It was held that evidence of father could not be doubted on account of delay in filing the FIR [Gurbachan Singh v Satpal Singh, 1990 Cr LJ 562 : AIR 1990 SC 209 : (1990) 1 SCC 445 : 1989 (3) Crimes 526 ].

Page 20 of 61 [s 154] Information in cognizable cases.—

Delay in filing the FIR relating to rape was caused because, after hearing about the incident the parents as well as the other members of the prosecutrix’s family were involved in a serious thought as to whether the matter should be reported to the police or not, looking to the future of the girl and the honour of the family. Secondly, the father of the prosecutrix was engaged in obtaining medical certificate. Delay in filing FIR was held to be explained satisfactorily [Jito v State of HP, 1990 Cr LJ 1434 : 1989 (2) Sim LC 269 (HP) per Bhawani Singh J.].

Wife and two sons were the only relatives of the deceased—Wife was also injured and was not able to speak clearly—Relatives reaching the scene. Instead of informing the police they informed the informant—No adverse inference can be drawn under these circumstances regarding alleged delay in lodging FIR [Kunjan Nadar Radhakrishnan v State, 1990 Cr LJ NOC 6 : 1989 (1) KerLT 806 : ILR (1989) 2 Ker 457 (Kerala-DB)]. Explanation for delay depends on the circumstances of each case. [Erram Santosh Reddy v State of AP, AIR 1991 SC 1672 : (1991) 3 SCC 206 : 1991 Cr LJ 2189 (SC)].

Delay, if explained satisfactorily will not affect the conviction [Zahoor v State of UP, AIR 1991 SC 40 : 1991 SCC (Cri) 678 : 1990 (3) Crimes 556 : 1991 Cr LJ 56 SC] .

Under section 154 of the Criminal Procedure Code, as soon as the FIR is recorded, the corresponding entry has to be made in the daily diary, wherein the substance of the FIR is required to be incorporated and the substance of the FIR would mean, that not only the name of the FIR informant but also the names of witnesses and accused as alleged by him must be recorded. [Rajesh Kumar v State, 1996 Cr LJ 607 (Del); Cryptic telephonic message is not FIR Pyara v State of Rajasthan, 1997 Cr LJ 1065 : 1997 (1) Raj LW 278 : 1997 (2) Rec C R 430 (Raj)]. Since the General Diary/Station Diary/ Daily Diary is the record of all information received in a police station, all information relating to cognizable offences, whether resulting in registration of FIR or leading to an inquiry, must be mandatorily and meticulously reflected in the said Diary and the decision to conduct a preliminary inquiry must also be reflected therein. [Lalita Kumari v Govt of UP, AIR 2014 SC 187 : (2014) 2 SCC 1 : 2014 Cr LJ 470 (SC)].

Laconic information received on telephone with no details of offence cannot be said to be FIR [Godu Ram v State of Rajasthan, 1997 Cr LJ 547 (Raj)]. [s 154.24] Preliminary enquiry.— Registration of FIR is mandatory under section 154 of the Code, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation [Lalita Kumari v Govt of UP, AIR 2014 SC 187 : (2014) 2 SCC 1 : 2014 Cr LJ 470 (SC)].

In Lalita Kumari v Govt of UP, a constitution bench of the Supreme Court summarized the law and gave the following directions:

(i)

Registration of FIR is mandatory under section 154 of the Code, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation.

(ii) If the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not. (iii) If the inquiry discloses the commission of a cognizable offence, the FIR must be registered. In cases where preliminary inquiry ends in closing the complaint, a copy of the entry of such closure must be supplied to the first informant forthwith and not later than one week. It must disclose reasons in brief for closing the complaint and not proceeding further.

Page 21 of 61 [s 154] Information in cognizable cases.— (iv) The police officer cannot avoid his duty of registering offence if cognizable offence is disclosed. Action must be taken against erring officers who do not register the FIR if information received by him discloses a cognizable offence. (v) The scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence. (vi) As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are: (a) Matrimonial disputes/ family disputes (b) Commercial offences (c) Medical negligence cases (d) Corruption cases (e) Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3 months delay in reporting the matter without satisfactorily explaining the reasons for delay. The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry. (vii) While ensuring and protecting the rights of the accused and the complainant, a preliminary inquiry should be made time bound and in any case it should not exceed 7 days. The fact of such delay and the causes of it must be reflected in the General Diary entry. (viii) Since the General Diary/Station Diary/Daily Diary is the record of all information received in a police station, all information relating to cognizable offences, whether resulting in registration of FIR or leading to an inquiry, must be mandatorily and meticulously reflected in the said Diary and the decision to conduct a preliminary inquiry must also be reflected [Lalita Kumari v Govt of UP, AIR 2014 SC 187 : (2014) 2 SCC 1 : 2014 Cr LJ 470 (SC)].

When an anonymous complaint is received alleging corrupt practices by a member of special police force, no investigation officer would initiate investigation process immediately thereupon. It may for good reasons carry out a preliminary enquiry to find out the truth or otherwise of the allegations contained therein [Shashikant v CBI, AIR 2007 SC 351 : 2007 Cr LJ 995 (SC)].

Before a charge-sheet is filed against a public servant for dishonesty/disproportionate assets, there must be some suitable preliminary enquiry into the allegations by a responsible officer. Where such a course has not been adopted by the prosecution though the law declared by the Supreme Court is binding on every one in view of the provisions of Article 14 of the Constitution, which would by all means override the statutory provisions of the Code of Criminal Procedure, 1973 and such an irregularity is not curable nor does it fall with the ambit of section 465, Code of Criminal Procedure, 1973. However, as the issue is being raised first time before the Supreme Court, it not worth further consideration [Ashok Tshering Bhutia v State of Sikkim, 2011 Cr LJ 1770 : AIR 2011 SC 1363 : (2011) 4 SCC 402 ].

Preliminary enquiry against member of Special Police force based on anonymous complaint alleging corrupt practices is permissible, but there is no need to lodge FIR and initiate investigation [Shashikant v CBI, AIR 2007 SC 351 : 2007 Cr LJ 995 (SC)]. [s 154.25] Demand of copy of report of preliminary enquiry by accused.— In a case where preliminary enquiry has been converted into regular case, the accused has no right to demand a copy of the report of preliminary enquiry. Where under section 207 of the Code of Criminal Procedure, 1973, the defence had been supplied with the FIR of the regular case, charge-sheet and all documents that accompanied the charge-sheet, the desire of the accused to have a copy of the report of preliminary enquiry was held unreasonable [Ram Chandra Singh v Superintendent of Police, CBI, Crime Branch, 2009 Cr LJ 3526 (3529) [See also Shashikant v CBI, (2007) 1 SCC 406 : 2007 Cr LJ 995 : AIR 2007 SC 351 : 2006 (4) Crimes 318 ; Rajinder Singh Katoch v Chandigarh Administration, (2008) 1 SCC (Cri) 571 : 2008 Cr LJ 356 : AIR 2008 SC 178 : 2007 (4) Crimes 153 : (2007) 10 SCC 69 ].

In cases where preliminary inquiry ends in closing the complaint, a copy of the entry of such closure must be supplied to the first informant forthwith and not later than one week. It must disclose reasons in brief for closing

Page 22 of 61 [s 154] Information in cognizable cases.— the complaint and not proceeding further [Lalita Kumari v Govt of UP, AIR 2014 SC 187 : (2014) 2 SCC 1 : 2014 Cr LJ 470 (SC)]. [s 154.26] Hospital memo.— The memo is a prescribed form, found in a book obviously kept by the Hospital. One of the forms is filled up and sent by Doctor to the Sub-Inspector of Police. It was not necessary at all to mention all the statements made to the doctor. [CV Govindappa v State of Karnataka, AIR 1998 SC 792 : 1998 Cr LJ 1107 : (1998) 2 SCC 763 : 1998 (1) Crimes 127 (SC)]. [s 154.27] Copy of FIR.— The accused is entitled to a copy of the FIR so that he may meet the case [Bherumal, AIR 1937 SC 303 ; Mahadeo, AIR 1942 Bom 121 , FB]. Under added sub-section (2) of section 154 of Code of Criminal Procedure, 1973 a copy of FIR shall be given forthwith to the informant free of cost and under added section 207 accused is to be furnished with copy of FIR free of cost by the Magistrate. [s 154.28] Value and use of FIR.— FIR is extremely vital and valuable piece of evidence for corroborating the oral evidence adduced [Thulia Kali v State of TN, AIR 1973 SC 501 : 1972 Cr LJ 1296 : (1972) 3 SCC 398 ]. The FIR is of considerable value as it shows on what materials the investigation commenced and what was the story originally told [Kampu, 11 Cal WN 554, p.55] and what were the facts given out immediately after the occurrence [Bhutnath, 7 Cal WN 345, p.348; Dubai, AIR 1942 P 113, p.117] before there is time to forget or embellish [Khwaja Nazir, AIR 1945 PC 18 : 49 Cal WN 191 : 71 IA 203]. It is, in some cases, of the nature of res gestae [Mahla, AIR 1931 L 38; Azimaddy, 54 C 237 : 31 Cal WN 410; State of Gujarat v Anil Ranjan Dutta, AIR 1952 Cal 534 : 1952 CrL J1154]. It is well settled that unless FIR can be tendered in evidence under any provision of chapter 2 of Evidence Act, such as a dying declaration under section 32(1) as to the cause of informant’s death, or as part of his conduct under section 8, it can ordinarily be used for corroborating, contradicting or discrediting (under sections 157, 145 and 155, Evidence Act), its author, if examined, and not any other witness [Shanker v State of UP, AIR 1975 SC 757 : 1975 Cr LJ 634 : (1975) 3 SCC 851 ]. If it is intended to contradict and challenge a witness by the FIR, section 145, Indian Evidence Act comes into play and his previous statement cannot be used unless his attention has first been drawn to those parts by which it is proposed to contradict him [State of Gujarat v Hiralal Devji, AIR 1964 Guj 261 : 1964 (2) Cr LJ 676 : (1964) 5 Guj LR 255 (Bal Gangadhar, 42 IA 135; Tara Singh v State, 1951 SCR 729 : 1951 SC 441 : 1951 Cr LJ 1449 relied on) : Mehr Vajsi Deva v State of Gujarat, AIR 1965 Guj 143 : 1965 (1) Cr LJ 696 : (1964) 5 Guj LR 834]. Use and admissibility [Ramkrishnayya, AIR 1954 M 1442], and evidentiary value [Mannalal Khatic v State, AIR 1967 Cal 478 : 1967 Cr LJ 1272 ] of FIR is not to be discounted because minute details are not given [Re : Battu Musalayya, AIR 1955 NUC 423 (Mad)]. Non-mention of details in FIR by itself is no ground for rejecting the prosecution case [Nawaratan Mahton v State of Bihar, AIR 1980 (NOC) 1 : 1979 Cr LJ 1295 : (1979) 3 SCC 488 (SC)]. When FIR is filed by a rustic woman, omission to mention incidental facts cannot nullify an otherwise prompt and impeachable report [Gurnam Kaur v Bakshish Singh, AIR 1981 SC 631 : 1981 Cr LJ 34 (SC)]. Omissions of important facts in the FIR affecting the probabilities of the case, are relevant under section 11 of Evidence Act in judging the veracity of the prosecution case [Ram Kumar Pande v State of MP, AIR 1975 SC 1026 : 1975 Cr LJ 870 : (1975) 3 SCC 815 ]. FIR which is sketchy and not as full as it could be, can be used to corroborate eye-witnesses [Abdul Gani v State of MP, AIR 1954 SC 31 : 1954 Cr LJ 323 ]. When an FIR is made by a person who had information from another sometimes facts which should have been mentioned get omitted but suspicion cannot be attached to statement because of this [State of Rajasthan v Kartar Singh, AIR 1970 SC 1305 : 1970 Cr LJ 1144 : (1970) 2 SCC 61 (SC)].

In the instant case, the informant contradicted the contents of FIR and it was not challenged by the prosecution. Therefore, FIR has no value and the prosecution cannot rely on the contents of FIR [Padamati Venkata Sundara Rao v State of AP, 2006 Cr LJ 2168 (2172) (AP)].

FIR cannot corroborate or contradict any witness other than the informant himself [Surjit Singh v State of Punjab, AIR 1992 SC 1389 : 1992 Cr LJ 1952 : (1993) Supp 1 SCC 208 : 1992 (2) Crimes 282 ].

The FIR filed immediately after occurrence, rules out any possibility or deliberation to falsely implicate any person [Krishnan v State, AIR 2003 SC 2978 : 2003 Cr LJ 3705 : (2003) 7 SCC 56 : 2003 SCC (Cri) 1577 :

Page 23 of 61 [s 154] Information in cognizable cases.— 2003 (3) Crimes 197 (SC)]. A first information cannot be used to contradict an injured eye-witnesses or for that matter any other witness when it was not lodged by him [Andrews v State of Kerala, (2002) 10 SCC 126 ].

Where the informant is not examined, the FIR cannot be used as substantive evidence, but the accused is not entitled to be acquitted on this ground alone Even if the FIR is not proved the case would depend upon the evidence led by the prosecution [Krishna Machi v State of Bihar, AIR 2002 SC 1965 : 2002 Cr LJ 2645 (SC) : 2002 (2) Crimes 236 : (2002) 6 SCC 81 ].

Mere delay in lodging the FIR is not fatal. The effect of delay in the light of the plausibility of the examination forthcoming must fall for consideration of all the facts and circumstances of a given case [Apren Joseph v State of Kerala, AIR 1973 SC 1 : 1973 Cr LJ 185 : (1973) 3 SCC 114 ]. Whether the delay is so long as to throw a cloud of suspicion on the seeds of the prosecution case must depend upon a variety of factors. Even a long delay can be condoned if the witnesses have no motive for implicating the accused. On the other hand, prompt filing of report is not an unmistakable guarantee of the truthfulness of the version of the prosecution [Ram Jag v State of UP, AIR 1974 SC 606 : 1974 Cr LJ 479 : (1974) 4 SCC 201 ]. Delay in lodging the FIR should be satisfactorily explained [Thulia Kali v State of TN, AIR 1973 SC 501 : 1972 Cr LJ 1296 : (1972) 3 SCC 393 ]. In Ram Murti v State of Haryana, AIR 1976 SC 2455 : 1976 Cr LJ 1888 : (1976) 4 SCC 308 it was held that explanation for delay found not very satisfactory by itself was not a ground for disbelieving the prosecution evidence Inordinate delay in registration of FIR renders the prosecution story suspicious [Ganesh Bhavan patel v State of Maharashtra, AIR 1979 SC 135 : 1979 Cr LJ 51 : (1978) 4 SCC 371 (SC)]. FIR found to have been written after inquest report prepared by ASI lost its authenticity [Balaka Singh v State of Punjab, AIR 1975 SC 1962 : 1975 Cr LJ 1734 : (1975) 4 SCC 511 (SC)]. If a inquest report under section 174 is unreasonably delayed, doubt arises about the genuineness of its contents and the time of recording of FIR [Mahabir Singh v State, 1979 Cr LJ 1159 (Del)]. An FIR lodged six and half hours after the incident by covering a distance of twelve miles is prompt [Dalip Singh v State of Punjab, AIR 1953 SC 364 : 1954 SCR 145 : 1953 Cr LJ 1465 ]. Delay of 12 hours in filing FIR though an important circumstance, is of no consequence when reasonably explained [Lalai v State of UP, AIR 1975 SC 2118 : (1975) 3 SCC 273 : 1974 SCC (Cri) 881 ]. An FIR of dacoity occurring at 1 AM, next day at 10 AM at police station 6 miles away was of no consequence [Saktu v State of UP, AIR 1973 SC 760 : 1973 Cr LJ 599 : (1973) 1 SCC 202 : 1973 SCC (Cri) 307 (SC)]. Delay in filing FIR due to its being lodged at wrong police station within two and half hours of the incident is of no consequence [Aimaduddin v State of UP, AIR 1974 SC 1901 : 1974 Cr LJ 1300 : (1973) 4 SCC 35 ]. The incident of murder occurred during night, information regarding incident was lodged at 8.00 a.m. at police chowki which was 3 Kms away from place of occurrence and FIR was registered at police station at a distance of 7 Kms at 9.35 a.m. It was held that delay was not unexplained [State of Punjab v Karnail Singh, AIR 2003 SC 3609 : 2003 Cr LJ 3892 : 2003 (3) Crimes 292 (SC)]. In a rape case as honour of family was involved delay of 10 days was held reasonable [Harpal Singh v State of HP, AIR 1981 SC 361 : 1981 Cr LJ 1 : (1981) 1 SCC 560 (SC)]. Though the importance of FIR made promptly cannot be minimised the mere fact that it was immediately made after the incident cannot rule out any embellishment in the version [Tarachand v State of Haryana, AIR 1971 SC 1981 : 1971 Cr LJ 1411 : (1971) 2 SCC 579 ].

Where there was delay in registering the first information report if there was proper explanation of delay produced from the prosecution side, it was held by the High Court that FIR was not afterthought [Vedpal v State of Haryana, 1995 Cr LJ 3556 (P&H)].

Mere delay in filing of FIR is not a ground in itself for discarding the case. Totality of the facts has to be looked into. [Ranjit Das v State of WB, 2000 Cr LJ 1241 : 2000 (2) Crimes 133 : 2000 (1) Cal HN 57 (Cal)].

There is no delay in filing the FIR where (i) the offence took place at 7 p.m. (ii) death of the deceased took place at 7.55 p.m. and (iii) informant went to the Police Station and lodged a report at 8 p.m. (particularly where the informant himself was also on the hit list. [Sheelam Ramesh v State of AP, AIR 2000 SC 118 : 2000 Cr LJ 51 (1999) 8 SCC 369 : 1999 (4) Crimes 554 (SC)].

In the instant case only a vague information was given at the police station about rape of a girl and in the information no name of the accused was mentioned. Even the name of victim was not mentioned in the

Page 24 of 61 [s 154] Information in cognizable cases.— information and the recording of general diary on the basis of such information without the name of the victim and details of the incident cannot be regarded as the best evidence or real FIR. FIR is not hit by section 162, Code of Criminal Procedure, 1973 nor the prosecution withheld the best evidence and being so, the question of drawing adverse presumption under section 114, Evidence Act does not arise. [Anil Lakra v State of WB, 2006 Cr LJ 4467 (4475) (Cal)].

There is no requirement of monitoring the names of all witnesses in the FIR. Non-mentioning of names in the FIR by itself cannot be a ground to doubt their evidence [State of MP v Dharkole, AIR 2005 SC 44 : 2005 Cr LJ 108 : 2005 SCC (Cri) 225 : 2004 (3) Crimes 270 (SC); Bhagwan Singh v State of MP, AIR 2002 SC 1621 : 2002 Cr LJ 2024 : (2002) 4 SCC 85 : 2002 (2) Crimes 42 : JT 2002 (3) SC 387 ; Chittar Lal v State of Rajasthan, AIR 2003 SC 3590 : 2003 AIR SCW 3466 : 2003 Cr LJ 3548 : (2003) 6 SCC 397 ; State of MP v Man Singh, 2003 (6) Supreme 202 ].

Mere non-mention of names of all 24 accused persons and details of injuries said to have been suffered by some of the accused in the FIR would not render the FIR weak or unreliable [P Venkateshwarlu v State of AP, AIR 2003 SC 574 : 2003 Cr LJ 837 : 2003 (2) Crimes 506 : 2003 SCC (Cri) 1414 (SC)].

An FIR is not encyclopaedia of evidence of prosecution and only gist of occurrence as mentioned in the FIR to move the police machinery in motion. At the time of lodging the FIR the brother of the witness was admitted in the hospital in precarious condition and he had also sustained injuries and in such circumstances it was not possible for the witness to give each and every detail of the prosecution story in the FIR [Radha Mohan Singh v State, 2005 Cr LJ 167 : 2004 All LJ 3670 (All)].

Merely because some of the assailants have not been named in the FIR or some though named in the FIR but were not identified by the complaint in the Court, it cannot be said that the entire evidence of complainant is discrepant and of no value and must be discarded [State of Maharashtra v Lahu Laxman Pabale, 2003 Cr LJ 1174 : 2002 All MR (Cri) 2204 (Bom)].

The inference arising from non-mention of names of the accused in FIR must vary from case to case [Hallu v State of MP, AIR 1974 SC 1936 : 1974 Cr LJ 1385 : (1974) 4 SCC 300 ; see also Mitter Sen v State of UP, AIR 1976 SC 1156 : 1976 Cr LJ 857 : (1976) 1 SCC 723 ; Jagdip Singh v State of Haryana, AIR 1974 SC 1978 : 1974 Cr LJ 1378 (1975) 3 SCC 133 (SC)]. Non-mention of names of the witnesses in the FIR is not sufficient itself for rejection of testimony of such witnesses [Narpal Singh v State of Haryana, AIR 1977 SC 1066 : 1977 Cr LJ 642 : (1977) 2 SCC 131 (SC); State of UP v Lalla Singh, AIR 1978 SC 368 : 1978 Cr LJ 359 : (1978) 1 SCC 142 (SC)]. Absence of the name of the accused in the FIR is only material and relevant for appreciation of the evidence [Thakur Pd v State of MP, AIR 1954 SC 30 : 1954 Cr LJ 261 ]. Where satisfactory evidence is available for the serious omission of the name of the accused in FIR, the veracity of the prosecution cannot be doubted [Bishan Dass v State of Punjab, AIR 1975 SC 573 : 1975 Cr LJ 461 : (1975) 3 SCC 700 (SC)]. Absence of name of the assailant is of no consequence [Pandurang Tukia v State of Hyderabad, AIR 1955 SC 216 : 1955 Cr LJ 572 (SC)]. The mere non-mention of names of some of the accused or some witnesses in the FIR is no ground for disbelieving the prosecution story [Arumugam Solathirayar v Ponnalagu Pondarar, AIR 1958 Mad 127 : 1958 Cr LJ 385 : 1958 (1) Mad LJ 6 : 71 Mad LW 429 : 1957 Mad LJ (Cri) 707; Tahsildar Singh v State, AIR 1958 All 214 : 1958 Cr LJ 324 : 1957 All LJ 857]. But the absence of names of the witnesses raises some suspicion about their evidence which will have to be scanned carefully [Bachaspatimayum Thambou Sharma v State of Manipur, AIR 1967 Man 30 : 1967 Cr LJ 1347 ; Ramanand v Krishan Chand, AIR 1954 HP 61 : 1954 Cr LJ 1230 ].

It is not necessary that an FIR is written exactly as dictated by the informant, the writer himself adds some such words, which do not change the basic version of the complainant, the words used in prayer, address to Investigation Officer are used by writer of police in routine language, merely on this ground FIR cannot be discredited. [Hazi Ismail v Ejaz Ahmad, 1999 Cr LJ 2508 : 1999 All LJ 1084 : (1998) 37 All Cr C 642 (All)].

When FIR is lodged by a person other than an eye-witness, the statement of such person cannot be used to

Page 25 of 61 [s 154] Information in cognizable cases.— contradict the version of the prosecution; however, it can be used to assess the credibility of the prosecution evidence. [Dedi Narsi Reddy v State of AP, 1999 Cr LJ 2055 (AP)].

In a case, police report written by police Patel was taken by the prosecution witness to the Police Station and the crime was registered on that basis. It was held that the fact that it was not sent through Patel did not make any difference [Ch Madhusudan Reddy v State of AP, 1994 Cr LJ 2203 : 1994 SCC (Cri) 275 : 1994 (1) Crimes 37 ].

Prosecution has to explain absence of name of the accused in the FIR, though no rule of law stipulates that an accused whose name is not mentioned is entitled to an acquittal [Darshan Singh v State of Punjab, AIR 1983 SC 554 : (1983) 2 SCC 411 : 1983 (1) Crimes 1059 : (1983) 2 SCJ 90 : 1983 Cr LJ 985 ].

When designation of office of the accused is mentioned in FIR as his name was not known to the complainant, absence of name is hardly of any significance [Kishanchand, AIR 1982 SC 1511 : 1983 Cr LJ 1 : (1982) 3 SCC 466 : 1983 (1) Crimes 20 ].

Many times it has been impressed by the superior Courts that the FIR is not substantive evidence, ie, it is not evidence of the facts which it mentions and that such use is illegal. It cannot be used as evidence against the maker as the trial if he himself becomes an accused. It can only be used for corroboration (section 157, Evidence Act) or contradiction (section 145, ibid) of statement made by the informant subsequently in Court [Aghnoo Nagesia v State of Binar, AIR 1966 SC 119 : 1966 Cr LJ 100 (SC); Hasib v State of Bihar, AIR 1972 SC 283 : 1972 Cr LJ 233 (SC); Damodar Prasad Chandrika Prasad v State of Maharashtra, AIR 1972 SC 622 : 1972 Cr LJ 451 : (1972) 1 SCC 107 (SC); Nisar Ali v State of UP, AIR 1957 SC 366 : 1957 Cr LJ 550 : 1957 SCR 657 (SC); Apren Joseph v State of Kerala, AIR 1973 SC 1 : (1973) 3 SCC 114 : 1973 Cr LJ 185 ; Dharma Ram Bhagare v State of Maharashtra, AIR 1973 SC 476 : 1973 Cr LJ 680 : (1973) 1 SCC 537 ; Nanhku Singh v State of Bihar, AIR 1973 SC 491 : 1972 Cr LJ 1204 : (1972) 3 SCC 590 ; Inchan, A 1943 SC 647 ; Panchu, A 1943 C 612; Rahenuddin, A 1944 C 323; Badaruddin, 50 Cal WN 531; Chittar, 47 A 280; Ramnaresh, A 1939 A 242; Mohan, A 1925 A 413; Sankaralinga, 53 M 590].

Where the informant on whose statement the case has been registered, has given a go by to his statement by appearing before the Magistrate and giving retracted statement subsequently, the fact that there is a retracted statement of the first informant is not, by itself, sufficient to throw the case of the prosecution lock, stock and barrel. The FIR is not at all a substantive piece of evidence. It can be used during trial as a material corroborative or contradictory. If the first informant disowns his statement during the course of trial, then the prosecution (after getting the requisite permission of the Court) treat him as a hostile witness and put questions to him, which may be put in cross-examination and thereby elicit, by way of contradiction, his prior statement in the first information.

Non-compliance with sections 154 and 157 does not constitute a ground for throwing away the prosecution case, but it does emerge as a factor to be seriously reckoned with, while appreciating the entire evidence [NA Victor Immannuel v State, 1991 Cr LJ 2014 : 1991 Mad LW (Cri) 38 (Mad) (per Janarthanam J)].

Mere absence of injury on the person of the prosecutrix or the accused would not prove innocence of the accused regarding rape.

Further the FIR was lodged at the earliest point of time. There was also no time for concoction and the report was faithfully recorded, and there was no contradiction between the FIR and the testimony of the prosecutrix. Hence, conviction for rape was justified [Uttam v State of Maharashtra, 1991 Cr LJ 1644 : 1990 Mah LJ 1011 : 1990 (2) All CrLR 571 (Bom-DB)].

Where it was not disputed that mention of injuries was made in the FIR and the fact of Farsa being thrown

Page 26 of 61 [s 154] Information in cognizable cases.— towards “A” was also mentioned in the FIR, the acts mentioned in the FIR could only be used to confront its maker. It was not required of the informant to explain how the said fact had been mentioned in the FIR [Nannu alias Nanwa alias Nanu v State of UP, 1991 Cr LJ 1051 : 1991 All LJ 345 (All-DB)].

The mere fact that there was discrepancy in regard to the distance from the Thana (Police Station) to the place of occurrence as given in the first information report and in the inquest memo, is not sufficient for discarding the FIR. In some cases the officer conducting the inquest may note down the distance as given in the FIR. But such action on his part cannot justify the conclusion that either the inquest memo is fake or the first information report is ante-timed, unless there are other circumstances to support such a conclusion [Tunda v State, 1990 Cr LJ 868 (All) : (1989) All LJ 492 : 1989 All Cr C 214 DB].

Where the first information report regarding the case of murder is shown to have been recorded at the given time, the mere fact that the immediately preceding and succeeding First Information Reports related to other cases and those cases were closed as untraced would not be enough, in the absence of any material to show that they were falsely and intentionally introduced, to hold that the FIR regarding murder had not been recorded at the given time [Bachttar Singh v State (Delhi Admn) (1991) Cr LJ 2619 : (1991) 21 DRJ 65 Del].

In a murder case, assault on victims by several persons was alleged. Two out of three witnesses ruled out the presence of two out of nine accused at the scene of occurrence. Said witnesses did not adhere to prosecution case in FIR and to their earlier statement under section 161 Cr PC—Evidence of these witnesses cannot necessarily be discarded on that count—Improvements and contradictions do not always cast reflection on evidentiary value of those witnesses [Rangi Lal v State of UP, 1991 Cr LJ 916 : 1991 All LJ 336 : 1991 All Cr C 202 : 1990 All Cr R 769 (All) (per B P Singh J) ].

When there is independent and reliable evidence that a witness not named in the first information statement was present during the occurrence, there is no reason to reject it on the sole ground that his name is conspicuously absent in the first information statement. It will lead to undersirable results if the testimony of witness found reliable and trustworthy is discarded on the ground that their names are not mentioned in the first information statement [Rakka Dineshan v State of Kerala, 1990 Cr LJ 1361 : 1990 (1) Ker LT 169 (Kerala-DB)].

Great importance is attached to lodging of prompt FIR because it diminishes greatly chances of false implication of the accused person as well as that of informant being tutored [Jagannath Narayan Nikam v State of Maharashtra, 1995 Cr LJ 795 : 1995 (1) Bom CR 570 Bombay (HC)].

High Court held that FIR is not only lodged by the complainant promptly but also the accused person is not falsely implicated in the case. Therefore, the FIR is wholly reliable and establishes the prosecution case [Sayed Ahmed Ali Kari alias Munna v State of Maharashtra, 1995 Cr LJ 3585 : 1996 (3) Bom CR 153 : 1995 (1) All MR 103 (Bombay)].

In a case of robbery, in the FIR the complainant has not given out any physical features of the accused who had committed the offence. The robbery was committed in broad daylight. But the complainant had only mentioned about the colour of the clothes being worn by the accused and had not at all mentioned as to the height of the accused, their built and their physical features in any manner in the FIR. It was held that, in the aforesaid circumstances, the accused could not be convicted on the basis of the testimony of the complainant identifying the accused as robbers in his evidence in Court for the first time [Joginder Singh Jaggi v State, 1990 Cr LJ NOC 30 (Del)(per P K Bahri J)].

Where there was no satisfactory explanation as to why following details were not recorded, it was held that the prosecution had not been able to prove that the FIR was recorded at the time when it purported to have been recorded. The details which should have been recorded are—

Page 27 of 61 [s 154] Information in cognizable cases.—

(a) name of the assailant (b) names of the witnesses (c) weapon alleged to have been used in committing the dacoity [Ramesh Kumar v State, (Delhi) 1990 Cr LJ 255 (Delhi) DB].

No doubt the omission about the mention of the use of the knife, ie the weapon of offence at the time of occurrence in the FIR is a material omission. In a given case, what is the effect of a material omission in the FIR on the credibility of the informant examined as a prosecution witness would depend upon the facts of that case. It was held that in view of the circumstances, the evidence of the eye witness in Court that the accused had stabbed the deceased with a knife cannot be discredited merely on the ground that the user of a knife is not mentioned in the FIR [State of Orissa v Abdulwahid, 1990 Cr LJ (NOC) 136 (Orissa) (per KP Mohapatra and Gopataswamy JJ) ].

There was failure on part of Investigating Officers to produce “injury report” regarding injuries sustained by deceased during course of occurrence—No satisfactory explanation was given by the Investigating officers as to why the same could not be produced. Conduct of Investigating officers was held to be suspicious—No reliance could be safely placed on case diary statements recorded by them [Rabi Nayak v State of Orissa, and State of Orissa v Parsuram Panigrahi, 1990 Cr LJ 2777 (per Gopalaswamy J) ].

Persons assembled were carrying various weapons. General description about weapons was given in the FIR and in evidence. It was held that it cannot be said to be infirm merely on ground that details as to which weapons were carried by whom were not given in the FIR [Balraj Yadav v State of Bihar, 1990 Cr LJ (NOC) 90 (Pat)]. [s 154.29] Overwriting in FIR.— Where the overwriting in FIR did not pertain to actual occurrence but as to things carried by deceased and there was no involvement of police when document was written, FIR was held not unreliable [State of UP v Hari Om, 1998 SCC (Cri) 979 : (1998) 9 SCC 63 ]. [s 154.30] Overwriting regarding date of its lodging.— The incident was stated to have occurred sometime before noon and as per FIR lodger PW-1, the deceased was brought straight to the hospital although he died on his way and thereafter she went to lodge the report. Post-mortem which was conducted on 24 July1979 at 9.00 am. also showed that deceased died within 12–18 hours of the examination, therefore, dated 24 July1979 could not have been the correct date and overwriting appeared to be bona fide and inadvertent [Nasuru v State of Rajasthan, 2010 Cr LJ 4016 (4018) : RLW 2011 (1) Raj 51 (Raj)]. [s 154.31] Improper recording of time of lodging FIR.— In the presence of strong evidence implicating the accused persons, things like alleged improper recording of time of lodging of FIR are not sufficient to dislodge the verdict of conclusions [State of UP v Jagdev, AIR 2003 SC 660 : 2003 (3) Crimes 95 : (2003) 1 SCC 456 : 2003 Cr LJ 844 (SC) ; State of MP v Mansingh, (2003) 10 SCC 414 : 2003 (3) Crimes 381 ]. [s 154.32] Discrepancy with regard to time mentioned by doctor in FIR.— Some discrepancy in a murder case with regard to time mentioned by doctor in FIR was held to be trifle not affecting the prosecution case [Dhadi Nityanand Sahu v State of Orissa, 2010 Cr LJ (NOC) 19 (Ori)]. [s 154.33] Non-filing of FIR at the nearest Police Station—If significant.— In a case the informant went to the nearest police station for FIR. The constable there told the informant that the Inspector was not available and he was not competent to accept the intimation and suggested that the report may be lodged at another police station having the jurisdiction. The FIR was lodged at another police station. It was held that since the FIR was not filed at the nearest station it was of no significance [Gubbala

Page 28 of 61 [s 154] Information in cognizable cases.— Venugopalaswamy v State of AP, AIR 2004 SC 2477 : (2004) 10 SCC 120 : 2004 SCC (Cri) 1764 (pp1766, 1767) : 2004 Cr LJ 2557 : 2004 (2) Crimes 148 ]. [s 154.34] Quashing.— Prosecution may be quashed if facts in FIR do not disclose any offence or if prosecution is legally barred [State of WB v Swapan Kumar Guha, AR 1982 SC 949 : 1982 Cr LJ 819 , 828 : (1982) 1 SCC 561 (SC); Madhav Rao Jiwajirao Scindia v Sambhaji Rao Chandrojirao Angre, 1988 Cr LJ 853 , 859 : AIR 1988 SC 709 : (1988) 1 SCC 692 : 1988 (1) Crimes 780 (SC) FIR not prima facie disclosing commission of cognizable offence can be quashed [Ajit Pramod Kumar Jogi v UOI, 2004 Cr LJ 3304 (p 3309) (Chhat) : 2004 (2) Crimes 69 : 2004 Cg LJ 126]. [See further, comment on section 482].

At the stage of quashing an FIR or complaint the High Court is not justified in embarking upon an enquiry as to the probability, reliability or genuineness of the allegations made therein [Rupam Deol Bajaj v KPS Gill, AIR 1996 SC 309 : 1995 AIR SCW 4100 : 1996 Cr LJ 381 : (1995) 6 SCC 194 : 1995 (4) Crimes 171 (SC)].

In some cases proceedings have been quashed as violating the right to speedy, trial flowing from Article 21 of the Constitution [State of AP v PV Pavithran, AIR 1990 SC 1266 : 1990 Cr LJ 1306 : (1990) 2 SCC 340 : 1990 (2) Crimes 40 ; see also P Ramachandra Rao v State of Karnataka, AIR 2002 SC 1856 : (2002) 4 SCC 578 ].

In the FIR, it was alleged that the accused got executed a power of attorney by forging the signature of the minor and the persons away from India and sold their property. The Supreme Court held that since the allegations are serious, hence the FIR cannot be quashed on the ground that a civil suit is pending for cancellation of the power of attorney [Ganga Dhar Kalita v State of Assam, AIR 2015 SC 2304 : 2015 (9) SCC 647 ]

Admittedly, the investigation is being made by the police and at this stage the High Court can only examine the allegations made in the impugned FIR and would not appreciate by way of sifting evidence collected during the investigation. In the case in hand a bare reading of the FIR discloses commission of cognizable offence and therefore, it would not be sound exercise of discretion to interfere with the investigation at this stage nor the FIR, having disclosed commission of cognizable offence can be quashed [Om Prakash Singh v State of UP, 2004 Cr LJ 3567 : 2004 All LJ 2189 : (2004) 49 All Cr C 341 (All)].

The power of the police under chapter XII of the Code of Criminal Procedure, 1973 cannot be whittled away even after rejection of the application by the Magistrate for directing the police to investigate the offence. Once the information relating to the commission of the cognizable offence as received it is within the province of the police to investigate and submit report under section 173, Code of Criminal Procedure, 1973 [Om Prakash Singh v State of UP, 2004 Cr LJ 3567 : 2004 All LJ 2189 : (2004) 49 All Cr C 341 (All)].

In absence of pleadings being specific, clear and unambiguous with regard to allegations of “mala fides” and necessary particulars of charges missing in FIR, the FIR is liable to be quashed [Dr Swami Sachidanand Sakshi Maharaj v State of UP, 2001 Cr LJ 320 : 2000 All LJ 2742 : (2000) 41 All Cr C 679 (All)].

In absence of any material to rebut presumption of due and legal sanction to prosecute accused persons. FIR not liable to be quashed [Mohd Shafi Shah v State of J&K, 2001 Cr LJ 580 (J & K)].

High Court in its revisional jurisdiction should not quash FIR at initial stage of investigation when offence is disclosed [SM Datta v State of Gujarat, AIR 2001 SC 3253 : 2001 Cr LJ 4195 : (2001) 7 SCC 659 : 2001 (4) Crimes 206 (SC)].

In the instant case one case was lodged for non-delivery of consignment to its consignee by transport company, and another FIR was lodged after some days which was connected with the same occurrence on the

Page 29 of 61 [s 154] Information in cognizable cases.— basis of complaint by another informant showing different place of occurrence. It was held that the second information needed interference, as for the same occurrence the petitioner could not be harassed twice [Niranjan Sharma v State of Jharkhand, 2006 Cr LJ 301 (303) (Jhar) : 2006 (2) AIR Kant R 481].

After institution of a case first in point of time for same set of occurrence, subsequent written report would be deemed to be a statement of witness under section 162; it could not be treated to be an FIR and subsequent FIR for the same set of occurrence being illegal was liable to be quashed [Ramchandra Yadav v State of Jharkhand, 2007 Cr LJ 472 (Jharkhand)]. [s 154.35] Registration of FIR and investigation.— The provision of section 154 is mandatory and the concerned officer who in charge of the police station is duty bound to register the case on the basis of such station if it is disclosing any cognizable offence. [Charu Kishore Mehta v State of Maharashtra, 2011 Cr LJ 1486 (1492) : RLW 2010 (3) Raj 2057 (Bom)]. The use of the word “shall” in section 154(1) of the Code clearly shows the legislative intent that it is mandatory to register an FIR if the information given to the police discloses the commission of a cognizable offence. The object of using the word “shall” in section 154(1) of the Code is to ensure that all information relating to all cognizable offences is promptly registered by the police and investigated in accordance with the provisions of law. The provisions of section 154(1) of the Code, read in the light of the statutory scheme, do not admit of conferring any discretion on the officer in-charge of the police station for embarking upon a preliminary inquiry prior to the registration of an FIR [Lalita Kumari v Govt of UP, AIR 2014 SC 187 : (2014) 2 SCC 1 : 2014 Cr LJ 470 (SC)].

Any information relating to the commission of a cognizable offence is required to be reduced in writing by the police officer in charge of the police station, which has to be signed by the person giving it and the substance thereof is required to be entered in a book to be kept by such officer in the prescribed form. A copy of FIR is required to be sent forthwith to the Magistrate empowered to take cognizance. After recording FIR, the Officer in charge of the police station either by himself or his authorised subordinate shall start investigation and for that purpose may proceed to place of occurrence and arrest the accused [Bijay Singh v State, AIR 2002 SC 1949 : 2002 Cr LJ 2623 : (2002) 9 SCC 147 : 2002 (2) Crimes 437 (SC); See also Sukhveer Singh v State of UP, 2006 Cr LJ 4816 (All) : 2006 (2) All CrC 889 : 2006 (6) All LJ 58; Sammeta Laxman v Government of AP, 2011 Cr LJ 1884 (AP)]. The officer in charge of a police station is statutorily obliged to register a case and then to proceed with the investigation if he has reason to suspect the commission of an offence which he is empowered under section 156 of the Code to investigate, subject to the proviso to section 157 thereof. [Lalita Kumari v Govt of UP, AIR 2014 SC 187 : (2014) 2 SCC 1 : 2014 Cr LJ 470 (SC)].

In the event a person chooses to approach a police station and makes a report of a cognizable offence, the police is under an obligation to register First Information Report (FIR) except in certain exceptional cases where some kind of preliminary inquiry may be necessary in the facts and circumstances of that case before registration of an FIR. However, even there, the officer in charge of a police station is under obligation to make an entry in the daily diary register as per police rules and thereafter within the shortest possible time must register an FIR in accordance with law. [Panchabhai Popatbhai Butani v State of Maharashtra, 2010 Cr LJ 2723 (2727) (Bom)].

According to section 154, Code of Criminal Procedure, 1973, the moment the police receives information about commission of a cognizable offence, by known or unknown person, the police is legally bound to register an FIR. In the present case the statement of Lakhan Singh not only revealed the commission of a cognizable offence, but it also revealed the name of culprits and weapons used by them for assaulting him. Thus the police was justified in registering FIR. [Hardev v State of Rajasthan, 2010 Cr LJ 3086 (3090) : RLW 2010 (3) Raj 205 (Raj)].

Held, unless and until a complaint is registered before the jurisdictional Police Station, the Police Inspector, City Branch (CCB) had no power to take up the matter directly on the basis of complaint received and issue notice calling upon the petitioner to appear before him. In the absence of case registered by Police Station, the notice issued by the Police Inspector, CBI, was improper. The Police Inspector ought to have forwarded the complaint for registration to the concerned jurisdictional Police authority [TS Kadeer Ahmad v State of Karnataka, 2010 Cr LJ 614 (616) (Kant) : 2010 (3) Kant LJ 500 ].

Page 30 of 61 [s 154] Information in cognizable cases.—

For the purpose of enabling the police to start investigation under section 156(3) of the Code, it is open to the Magistrate to direct the police to register an FIR. After registration of an FIR it involves only the process of entering the substance of the information relating to the commission of the cognizable offence in a book kept by the Officer-in-Charge of the police station as indicated in section 154. Even if a Magistrate does not say so in so many words while directing investigation under section 156(3), it is the duty of the officer-in-charge of the police station to register the FIR [Suresh v State, AIR 2001 SC 571 : 2001 Cr LJ 954 : (2001) 2 SCC 628 : 2001 (1) Crimes 171 ; Ashok Kumar Todi v Keshwar Jahan, 2011 Cr LJ 2317 (SC)]. If on the basis of sufficient available evidence the Sub-divisional Magistrate passes orders to register the FIR and investigate the cognizable offence, and the concerned police officer does not comply said orders it would be improper and bad in law [Naurata Ram v State of Haryana, 1995 Cr LJ 1568 (P&H)].

If the first information report was registered on the basis of eye witness mentioned in the daily diary report but the name of the accused was not mentioned therein, it would not negatively affect the prosecution case [Mukesh alias Muki v State, 1995 Cr LJ 1769 (Delhi)].

Where a cognizant offence is reported to the police the police must register the FIR. The officer in-charge of the police station is bound to register the crime and he cannot embark upon an enquiry as to whether the information is reliable or genuine. [Balachandra v State of Kerala, 2000 Cr LJ 3311 , 3315 : 2000 (2) Ker LT 352 , para 14 (Ker); Sammeta Laxman v Government of AP, 2011 Cr LJ 1884 (AP)].

During the conduct of a preliminary inquiry into allegations raised in the Kerala Legislative Assembly various details were revealed which showed commission of certain offences involving corruption. It was held that the officials were bound to register a case and present it to the competent Court. Mere apprehension that the order may be used against certain persons does not affect its legality. [K Karunakaran v State of Kerala, 2000 Cr LJ 2278 (SC)].

Inaction of police officials to register an FIR authorises aggrieved person to adopt modulating contained in section 190/200 by laying complaint before Magistrate having jurisdiction to take cognizance of offence [Aleque Podam v UOI, 2007 Cr LJ 3729 (SC)]. Police station was far away from place of occurrence and torrential rains had further made it impossible for informant to reach police station. It was considered a substantial explanation for delay [Jama @ Tamil Apal v State of WB, 2007 Cr LJ 4724 (SC)]. The college students entered the field of complainant and spoiled standing crops therein by playing cricket and on being objected to had abused complainant by taking name of his caste. A letter was written to Chief Minister but neither a crime was registered and investigated nor any proceedings were initiated. It was held that whole procedure was illegal and unsustainable and petition was allowed with a cost of Rs. 10,000/-. Authorities were also directed to register a case against the accused, get the same investigated by Sub Divisional Police Officer and to protect the land and pay the compensation [Subba Rayudu v DG Police, 2007 Cr LJ 4562 (AP)].

When a first information report, is lodged, the competent authority at the Police Station is bound to register it. [Gurjant Singh v State, 1998 Cr LJ 588 : 1997 (4) All CrLR 829 : 1997 (3) Rec Cr R 132 (P&H)].

Failure of police to register the case of appellant for no reason whatsoever is not proper. Mahindra v State of Punjab, AIR 2001 SC 2113 : 2001 Cr LJ 2587 : 2001 (3) Crimes 190 (SC); MS Saini v Secretary, Department of Home, Banglore, 2005 Cr LJ 553 (p 554) (Kant) : 2003 AIR Kant HCR 3023 : 2004 (1) KCCR 24 : 2004 (2) All CrLR 151].

Enquiry by police before recording FIR is not necessary [Girdhari Lal Kanak v State, (2002) 1 MPLJ 596 : 2002 Cr LJ 2113 (2122) (MP); Kateeri Moideen Kutty Haji v State of Kerala, 2002 (3) Crimes 143 (145) (Ker)]. If the information given is not clear or creates a doubt as to whether it discloses a commission of a cognizable offence, some enquiry can precede before registration of the offence. It is only a preliminary inquiry that can be held [Sanjeev Kumar v Commissioner of Police, 2002 Cr LJ 2178 (2183) (Del) : (2002) 96 DLT 330 : (2002) 62

Page 31 of 61 [s 154] Information in cognizable cases.— DRJ 103 ]. The scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence [Lalita Kumari v Govt of UP, AIR 2014 SC 187 : (2014) 2 SCC 1 : 2014 Cr LJ 470 (SC)].

If complaint is not registered even where there is allegation of commission of cognizable offence, inherent powers can be invoked to give direction to police to register and investigate a case and plea of availability of alternative remedy can be rejected [Prasanna v State, 2007 Cr LJ 233 (Mad) : (2006) 1 Mad LJ (Cri) 593].

In the instant case, the grievance of the petitioner was that he made a complaint to the concerned Police Station, instead of registering a First Information Report on the said complaint under section 324, Indian Penal Code, 1860 and taking appropriate action against the culprits, the police officials prepared a report that no cognizable offence had been made out. There was ample proof to indicate that the role of the police was not proactive. The High Court, in exercise of its powers under Article 226 directed the law enforcing agencies to issue comprehensive guidelines to personnel working under them [Vimal Bhai v UOI, 2008 Cr LJ 1953 (1956, 1957) (Del)].

Only because some enquiries have been made, the same by itself would not vitiate the entire trial. Enquiries are required to be made for several reasons; one of them is to ascertain the truth or otherwise of the incident and the second to apprehend the accused person [Animireddy Venkata Ramana v Public Prosecutor, 2008 Cr LJ 2038 (2042) (SC) : AIR 2008 SC 1603 : (2008) 5 SCC 368 : (2008) 2 SCC (Cri) 600 ].

First Information Report under section 154 of the said Code of 1973 was registered by the Officer-in-charge of the police station. On the basis of the said First Information Report, investigation was carried out and a chargesheet has been filed. section 154 of the said Code of 1973 is applicable only when an information relating to the commission of a cognizable offence is given to the Officer-in-charge of a police station. In the present case, the information received was of commission of a non-cognizable offence. Hence, the said information could not have been reduced into writing in accordance with section 154 of the said Code of 1973. [Vishwajit P Rane v State of Goa, 2011 Cr LJ 1289 (1294) (Bom)]. [s 154.36] Mala fide exercise of power of investigation — Power of High Court.— It is well settled that the High Court in exercise of its power under Article 226 of the Constitution of India can always issue appropriate directions at the instance of an aggrieved person if it is convinced that the power of investigation has been exercised by an Investigating Officer mala fide. The mala fide exercise of power need not be mala fide in fact. It can be a case of mala fide in law. We are conscious that this power is to be exercised in exceptional and rarest of the rare cases where a clear case of abuse of power and non-compliance with the provisions falling under chapter XII of the Code is clearly made out requiring the interference of the High Court. It is true that in such cases, the High Court cannot direct the police as to how the investigation is to be conducted but can always insist for the observance of process as provided for in the Code. [Charu Kishore Mehta v State of Maharashtra, 2011 Cr LJ 1486 (1499) (Bom); see also State of Haryana v Bhajan Lal, AIR 1992 SC 604 : 1992 Cr LJ 527 ; Janata Dal v H S Chowdhary, AIR 1993 SC 892 : 1992 (4) SCC 305 ; Rupan Deol Bajaj v Kanwar Pal Singh Gill, AIR 1996 SC 309 : 1995 (6) SCC 194 ; Indian Oil Corp v NEPC India Ltd, AIR 2006 SC 2780 : 2006 (6) SCC 736 ].

When the grievance or complaint pertains to serious economic offences in relation to public trust, interrogation of accused or suspects as permissible according to law may become sine qua non to unearth the crime and to bring real offenders to justice. The function of investigation is of executive nature reserved for the police subject to superintendence by the State Government. The inaction and failure by the police in this case is lamentable because specific detailed serious accusation of forgery, criminal breach of Trust, fabrication of record, swindling of Trust funds of the Trust were made by the complainant. The police ought to have followed the mandate of law to record FIR, and to register a criminal case and investigate it instead of passing it off merely as a civil dispute. That is nothing short of colourable exercise of power, the police acted from the day one as it no offence was committed. The police did not register any FIR. It is stated that a preliminary inquiry was made. However, the result of that inquiry has not been disclosed in the record as to what inquiry was made, from whom it was made and what was the conclusion of this inquiry made by Police. The stand taken by the police that it was a civil dispute only and therefore the matter was referred to the Charity Commissioner, Mumbai is not acceptable

Page 32 of 61 [s 154] Information in cognizable cases.— as it smacks of mala fides and evasive of duty to investigate completely and fully. The whole effort of the Police had been to find an excuse for not investigating in to accusations made and it is for this reason that the statement made by complainant petitioner remained unheeded for long. Held, it would be necessary to invoke extraordinary jurisdiction under Article 226 so as to direct the police to record FIR register a criminal case, investigate it and file a final report in competent Criminal Court. [Charu Kishore Mehta v State of Maharashtra, 2011 Cr LJ 1486 (p 1500) (Bom)]. [s 154.37] FIR not substantive evidence.— The FIR is not substantive evidence and can be used only for contradiction or corroboration [Aghnoo Nagesia v State of Bihar, AIR 1966 SC 119 : 1966 Cr LJ 100 (SC); Hasib v State of Bihar, AIR 1972 SC 283 : 1972 Cr LJ 233 ; Nisar Ali v State of UP, AIR 1957 SC 366 : 1957 Cr LJ 550 : 1957 SCR 657 (SC); Apren Joseph v State of Kerala, AIR 1973 SC 1 : 1973 Cr LJ 185 : (1973) 3 SCC 114 (SC); Dharma Ram Bhagare v State of Maharashtra, AIR 1973 SC 476 : 1973 Cr LJ 680 : (1973) 1 SCC 537 ; Nankhu Sinh v State of Bihar, AIR 1973 SC 491 : 1972 Cr LJ 1204 : 91972) 3 SCC 590 (SC); Panchu, A 1943 Col 612; Rahemuddin, A 1944 Cal 325 ; Badaruddin, 50 Cal WN 531; Chittar, ILR 47 All 280; Ramnaresh, A 1939 All 242 ; Mohan, A 1925 All 413 ; Sankara, ILR 53 Mad 590; Ravi Kumar v State of Punjab, 2005 (1) Crimes 373 (SC) : 2005 Cr LJ 1742 : AIR 2005 SC 1929 : (2005) 9 SCC 315 ; Sohan Lal v State of Punjab, AIR 2003 SC 4446 : 2003 Cr LJ 4569 (SC) : 2003 (4) Crimes 342 : 2004 SCC (Cri) 226 ].

The FIR does not constitute substantive evidence. It can, however, only be used as previous statement for the purpose of either corroborating its maker or for contradicting him and in such a case, the previous statement cannot be used unless the attention of witness has first been drawn to those parts by which it is proposed to contradict the witness. [Utpal Das v State of WB, 2010 Cr LJ 2867 (2869) : AIR 2010 SC 1894 : (2010) 6 SCC 493 (SC)].

The FIR by itself is not a substantive piece of evidence, but certainly it is a relevant circumstance of the evidence produced by the investigating agency. Merely because the informant turns hostile, it cannot be said that FIR would lose its relevancy and cannot be looked into for any purpose [Bable alias Gurdeep Singh v State of Chhattisgarh, AIR 2012 SC 2621 : (2012) 11 SCC 181 : 2012 Cr LJ 3676 (SC)].

Non-mentioning of some facts or vague reference to some others is not fatal [Baldev Singh v State of Punjab, AIR 1996 SC 372 : (1995) 6 SCC 593 : 1995 (4) Crimes 244 (SC)].

Prosecution cannot base its case solely on FIR which is not a substantive piece of evidence. [Suresh Pandurang Tigare v State of Maharashtra, 1997 Cr LJ 157 (Bom)].

The FIR can be used is to show the implication of the accused is not an after thought or that the information is a piece of evidence res gestae. In certain cases it can be used under section 32 (1) of Evidence Act or under section 8 of Evidence Act as to the cause of the informants death or as to part of informers conduct [Damodar, supra]. It can also be used as an admission against the informant [State v Kartar Singh, AIR 1958 All 90 : 1958 Cr LJ 129 ]. When the FIR was not made by an eye witness but by one who got an account from the eyewitness, it cannot be used to discredit an eye witness [Mardan Singh v State of MP, AIR 1963 MP 97 : 1963 (1) Cr LJ 292 ]. It cannot be used as evidence against the maker at the trial if he himself becomes an accused [Nisar, supra].

The first information report can only be used to discredit the testimony of the maker of the first information report. It cannot be used to contradict or discredit the other eye-witnesses if their testimonies are found to be worthy of reliance and so in these circumstances their evidence will have to be scrutinised [Kapil Singh v State of Bihar, 1990 Cr LJ 1248 : 1989 (2) BLJR 458 : 1990 (1) BLJ 716 (Patna High Court-DB)].

The FIR and facts stated therein are not substantive piece of evidence but can be used to confront and contradict the maker at trial. It is of great significance and importance when it is lodged after keeping the

Page 33 of 61 [s 154] Information in cognizable cases.— incident thoroughly and abnormally delayed [Dinesh Chandra Dey v State of Assam, 1990 Cr LJ NOC 158 (Gauhati) (per S Haque and W A Shishak JJ)].

Where the contradiction has not been put by the defence counsel in cross-examination to the witness and no opportunity was given to this witness to explain the same, the appellants cannot get the benefit of the contradiction. Bheru D Balai v State of MP, 2006 Cr LJ 2845 (2847) (MP).

Use of an FIR as substantive evidence is illegal [Sheokaran, AIR 1928 L 923; Jasim Sheikh v Emperor, AIR 1946 Cal 537 : 50 Cal WN 799 : (1946) 47 Cr LJ 737 ; Gunadhar Das v State, AIR 1952 Cal 618 : 1952 Cr LJ 1343 ; State of Bombay v Rusy Mistry, AIR 1960 SC 391 : 1960 Cr LJ 532 ]. An FIR can also be relied upon by the defence under section 155, Evidence Act to impeach the informant’s credit [Azimaddy, 54 C 237 : 44 CLJ 253; Ramaresh, AIR 1939 A 377; Mannalal Khatic v The State, AIR 1967 Cal 478 : 1967 Cr LJ 1272 ]. If any information does not satisfy the conditions of section 154 it would not be admitted as FIR for the prosecution to corroborate the informant but it may be used to contradict the informant [Mannalal, supra]. In the case of death of the informant, it is substantive evidence under section 32 (1), Evidence Act [Kapur, AIR 1930 L 450; Azimaddy, supra; Gajjan, AIR 1931 L 103; Mg Po, AIR 1938 R 282]; but not when the informant dies a natural death and not because of the injuries on him. His statement in FIR may however be admissible under section 8, Evidence Act illus. (j) and (k) [Umrao Singh v State of MP, AIR 1961 MP 45 : 1961 (1) Cr LJ 270 : 1961 Jab LJ 321 : 1961 MPC 82 ]. When an occurrence forms the subject-matter of two cases, the FIR in one case is admissible in the counter-case in which the informants stand their trial, though in every case the entire statement may not be admissible [Ramani Bala Devi v Kanai Lal Malakar, AIR 1965 Tri 17 : 1965 (1) Cr LJ 600 ]. As to mode of contradiction or corroboration by FIR, see Sarkars Evidence, 13th Edn, pp 1368, 1413–14.

Where the FIR discloses a cognizable offence, the investigation cannot be stopped. Mere fact that a civil suit between the parties is pending is not conclusive [Sibhash Agrawal, 1989 Cr LJ 175 (Patna)].

The FIR is not a substantive piece of evidence. It is only relevant in judging the veracity of the prosecution case and the value to be attached to it depends on the facts of each case. It is not verbatim summary of the prosecution case. It need not contain details of the occurrence as if it were an encyclopaedia of the occurrence. Non-mentioning of certain facts (or vague reference to other) is not fatal. [Baldev Singh v State of Punjab, AIR 1996 SC 372 : 1(1995) 6 SCC 593 : 1995 (4) Crimes 244 (SC)].

Unless two FIRs relate to the same incident, acquittal of the accused in one case is not sufficient to ignore the prosecution story in the other case because evidence is to be read independently in both the FIRs [Sarwan Singh v State, AIR 2002 SC 3652 : 2003 Cr LJ 21 : (2003) 1 SCC 240 ].

First information report is not substantive piece of evidence and it can be used only for corroboration and contradiction. Though author of first information report was not examined but another witness, a constable who worked with him and sub-inspector who was acquainted with his signature and handwriting were examined. It was held that first information report stood proved [Amarsingh Gond v State, 2007 Cr LJ 1560 (MP)].

First information report was lodged by eye-witness, the mother of deceased, but she could not be examined in Court because of her death. It was held that contents of first information report could not be looked into for judging veracity of prosecution case because the appellant had no opportunity to cross-examine the informant witness [Kailash v State, 2007 Cr LJ 1329 (MP) : 2007 CrLR (SC & MP) 1343]. [s 154.38] Non-examination of scribe of FIR : Effect.— In case of abduction of deceased from his house the facts narrated in FIR were of sufficient clarity regarding dual visits of appellant to the house of the deceased in search of his son. It is also clear that the deceased was taken away by them and when the daughters raised alarm the people of locality did not come forward to prevent abduction. The Apex Court held that the omission on part of people in the neighbourhood in intervening per se, in our opinion, does not detract from the truthfulness of the report made, which admittedly had been

Page 34 of 61 [s 154] Information in cognizable cases.— done within the shortest possible time. The non-examination of scribe of the FIR was held to be of no bearing on prosecution case. [Chaman v State of Uttarakhand, AIR 2016 SC 1912 : 2016 (12) SCC 76 ].

In a case, the FIR was lodged by the deceased himself before his death, which had the character of his dying declaration. The FIR was ascribed by his son. Non-examination of scribe was held to have no effect on prosecution case [Ram Muni Yadav v State of UP, 2003 Cr LJ 4131 : 2003 All LJ 2249 : 2003 (47) All Cr C 451 : 2003 (2) All Cr R 1577 (All)].

The non-examination of the person who was said to have written the FIR in rape case was held fatal to the prosecution case as all the witnesses had categorically stated that some person wrote the FIR but they had not even stated the name of that person which throws serious doubt about the genuineness of the FIR [Mirthagai Ali v State, 2007 Cr LJ 1247 (1252) : 2006 (2) Mad LJ (Cri) 105 Mad].

Where the author of the FIR is not examined, in the case, the FIR can be proved by the examination of a witness acquainted with the handwriting/signatures of the author of the FIR, a method permissible under section 67 of the Evidence Act [Amar Singh Gond v State of MP, 2007 Cr LJ 1560 (pp1562, 1563) (MP)]. [s 154.39] Sub-section (3).— (See “Changes” above). If a person has a grievance that his FIR has not been registered by the Police Station his first remedy is to approach the Superintendent of Police under section 154(3), Code of Criminal Procedure, 1973 or other police officer referred to in section 36 of Code of Criminal Procedure, 1973. If his grievance still persists, then he can approach a Magistrate under section 156(3), Code of Criminal Procedure, 1973, instead of running to the High Court by way of writ petition or a petition under section 482, Code of Criminal Procedure, 1973. When the petitioners have got alternative remedy, they cannot invoke the extra-ordinary jurisdiction. [Sakirivasu v State of UP, AIR 2008 SC 907 : 2008 AIR SCW 309 relied on; Dilip Deshmukh v State of Karnataka, 2010 Cr LJ 620 (622) (Kant).] [s 154.40] Quashing of FIR — Where it is proposed to quash an FIR in exercise of writ jurisdiction the High Court should issue notice to the informant. [Satya Pal v State of UP, 2000 Cr LJ 569 (FB) : 1999 All LJ 2660 : (2000) 40 All Cr C 75 (All) (Various other rights of First information enumerated)].

In a murder case the assault took place inside the Court room. The FIR was lodged by the duty constable. The Investigating Officer initially requested the Presiding Officer to lodge a complaint. Upon his refusal, he made inquiries and thereafter recorded the FIR. The Apex Court held that the prosecution cannot be discarded on the ground that even before registering of FIR, inquest was undertaken and post-mortem was conducted. [Harijan Jivarajbhai Badhabhai v State of Gujarat, AIR 2016 SC 2376 ]. [s 154.41] FIR credibility.— Where information about a cognizable offence is given to a police officer apparently satisfying the requirements of section 154, the police officer cannot refuse to register it on the ground that it is not reliable or credible. [Gurmit v State of Punjab, 1996 Cr LJ 1254 : ILR (1996) 1 P&H 121 : 1996 (1) Chand LR (Civil Cri) 269 (P&H); Cf MK Velayudhan v Sub-Inspector of Police, 1998 Cr LJ 1187 : 1998 (1) Crimes 510 : 1998 (1) Ker LT 364 : ILR (1998) 2 Ker 532 (Ker); Charu Kishor Mehta v State of Maharashtra, 2011 Cr LJ 1486 ].

Illegality : Where there are allegations of black marketing and misusing the permits issued to Members of Parliament for granting gas connection to various consumers, under these circumstances, the proceedings are not illegal at all and it is neither legal nor proper to impinge upon the investigation. There is no plausible reason for quashing the First Information Report and consequent investigation. [Bhupendra Kumar v State of Haryana, 1996 Cr LJ 1404 : 1996 (1) Rec Cr R 136 (P&H)].

If the Investigating Officer did not conduct the investigation properly or was negligent in not being able to trace out the driver of the car, that cannot become a ground to discredit the testimony of the prosecutrix. The prosecutrix had no control over the investigating agency and the negligence of an Investigating Officer could

Page 35 of 61 [s 154] Information in cognizable cases.— not affect her credibility. [State of Punjab v Gurmit Singh, AIR 1996 SC 1393 : (1996) Cr LJ 1728 : (1996) 2 SCC 384 : 1996 (1) Crimes 37 (SC)].

Before lodging a complaint with the police the complainant had consultation with each other. But that by itself is not sufficient to doubt or to discredit the FIR and infer that the FIR was fabricated. Mallikarjun Nigappa Ragati v State of Karnataka, 2006 Cr LJ 4298 (4311) (Kant).

When there was nothing in evidence of witness either in Examination-in-Chief and in cross-examination to show that any FIR was lodged prior to lodging the present FIR. The plea that the earlier FIR had been suppressed was not accepted [Krupsindhu Das v State of Orissa, 2008 Cr LJ 2788 (2791) (Ori) : 2008 (39) OCR 680 ].

In a murder trial there was suppression of origin and genesis of offence by prosecution. First FIR on the point of time on the basis of which police reached the place of occurrence and took the complainant to police station was suppressed. FIR which was on record appeared to be drawn subsequently and the same was anti-timed and anti-dated but presence of alleged eye-witnesses on place of incident was found and accused was entitled to acquittal on ground of benefit of doubt [Ram Charan v State, 2007 Cr LJ 4223 (Chh)]. [s 154.42] FIR in neat and clean handwriting — No fault can be found against such writing.— The fact that the said First Information Report is in a neat and clean handwriting cannot always lead to the conclusion that the said report was prepared by the police officer or at his dictation. If the handwriting of the writer of the information is neat and clean and he could express himself clearly, no fault could be found against such writing. In the present case there is a clear deposition of PW-1 that it was drawn by himself and in his own handwriting and there is no evidence to impeach or doubt the said statement of the witness. [Patai v State of UP, 2010 Cr LJ 2815 (p 2819) : AIR 2010 SC 2254 : (2010) 4 SCC 429 (SC)]. [s 154.43] Infirmity in prosecution case.— Infirmity in prosecution case cannot be made out only due to the omission of the accused in FIR. [Gaike Mandal v Ranjit Mandal, 2002(1) East Cr LJ 115 (Pat)]. [s 154.44] Informant dictating FIR—Police recording in his own language.— Where the informant dictated FIR and the police officer wrote the same in his own language, the narration of prosecution story given by the first informant cannot be said to be vitiated and no benefit can be claimed by accused [Sunil Namdeo Mane v State of Maharashtra, 2008 Cr LJ (NOC) 1074 : 2008 (4) AIR Bom R 628 (Bom) (NOC) : 2008 All MR (Cri) 809]. [s 154.45] Hearing of accused prior to registration of FIR.— The accused at the stage prior to registration of FIR cannot be heard to say that the FIR for cognizable offences should not have been registered [Ram Propanna v State of UP, 2007 Cr LJ (NOC) 439 : 2007 (3) ALJ 97 All]. [s 154.46] Two FIRs of same incident.— The legal position is that there cannot be two FIRs against the same accused in respect of the same case, but when there are rival versions in respect of the same episode, they could necessarily take the shape of two different FIRs and investigation can be carried on under both of them by the same investigating agency. The ultimate object of every investigation is to find out whether the offences alleged have been committed and, if so who have committed it. [Karichoudhary v Sita Devi & Sons, AIR 2002 SC 441 : 2002 Cr LJ 923 : 2002 (1) Crimes 11 : (2000) 1 SCC 714 : 2002 (1) UJ 206 (SC); See also JT Antony v State, AIR 2001 SC 2637 : 2001 Cr LJ 3329 (SC) : (2001) 6 SCC 181 : 2001 (3) Crimes 276 ]. Bare perusal of the contents of FIR and the factual aspect that the news which was published in the Daily Newspaper of the alleged involvement of a Minister in sex orgy and during enquiry and after obtaining a copies of CD and the report submitted by the F.S.L. itself borne out that the CD was tampered with and fabricated, on the basis of the report of F.S.L., FIR was registered by the police against petitioner-editor of the Newspaper for forgery and publishing news item on the basis of interpolated CD. It was held that the FIR against the petitioner was not barred and the criminal proceedings against the petitioner could not be said to be premature. Bhim Sen Garg v State of Rajasthan, 2006 Cr LJ 3643 (Raj). Where there is nothing common in the two cases, the two FIRs are maintainable [N Nagambikadevi v CBI, 2002 Cr LJ 1334 (1342) (Kant) : 2002 (2) Kant LJ 90 : 2002 (2) Cur CrR 94]. Where the first FIR was found to be false during investigation and all eye-witnesses including complainant have supported version of the second FIR, the second FIR would not be hit by section 162 [Mukeem Ullah v State of UP, 2006

Page 36 of 61 [s 154] Information in cognizable cases.— Cr LJ 2606 (All) : 2006 (3) All LJ 607]. The allegations made in the FIR registered at Police Station are verbatim the same as allegations in the other FIR registered at other place. The subject matter and narration of allegations, are almost the same. The basic allegations against the petitioner is that they have forged the general power of attorney of respondent-2 in favour of petitioner No. 2 and on the basis of the said power of attorney further transactions have been made. The course adopted by registering the second FIR with regard to the same facts and circumstances and making fresh investigation thereof is not permissible [Jasjit Singh Bhasin v State of Punjab, 2006 Cr LJ 2757 (P&H)].

There was no proof regarding the fact that the said information was sent to the Police at Maharajpur and that it was received and, therefore, the said information cannot be said to be the earliest First Information Report submitted to the police. The actual First Information Report from the record is the report which was submitted by PW-1, Prithvi Pal Singh, the informant at 5.15 p.m. Therefore, the contention urged by the counsel of the appellants that there were two separate First Information Reports lodged with the police on the day of the occurrence is without any merit. [Patai v State of UP, 2010 Cr LJ 2815 (2818) : AIR 2010 SC 2254 : (2010) 4 SCC 429 (SC)].

There cannot be a second FIR in respect of the same offence/event because whenever any further information is received by the investigating agency, it is always in furtherance of the FIR. The first FIR was recorded on the basis of statement made by the deceased when the deceased was alive and upon her death, which had nexus with the injuries, further information was given and that recorded as second FIR. Held, as a matter of fact it was not necessary to note the information with regard to death as a new FIR but simply because the SHO made a mistake by recording it as a fresh FIR, it would not make the case of prosecution weak especially when no prejudice was caused to the accused, appellant or any other person because of the aforesaid further information with regard to the death being recorded as a new FIR. Merely because second FIR was filed, the entire investigation would not be defective and that would not result in acquittal of accused. [Chitra Shivraj v State of AP, 2011 Cr LJ 971 (975) : AIR 2011 SC 604 : (2011) 1 Crimes 92 ].

Initial FIR was registered under sections 324/323, Indian Penal Code, 1860 upon information of quarrel and assault given to police and another FIR was lodged u/s. 300, 307/149, 148, 147 Indian Penal Code, 1860 in respect of subsequent occurrence that took place two hours later at the same place, wherein one person was killed and another injured. Subsequent FIR is not hit by section 162 Code of Criminal Procedure, 1973 [Jeetlal Mahato v State of Jharkhand, 2007 Cr LJ 672 (Jhar)].

In all cases of CBI which are entrusted to it for investigation, the CBI in accordance with rule 10.5 of the Manual, renumbers it but does not change the contents of the earlier FIR. Merely giving of a new number to the FIR by the CBI, which is their practice and obligations as per their manual does not make it the second FIR. [Sajjan Singh v CBI, 2011 Cr LJ 1225 (1245) (Delhi)].

There cannot be two FIRs against the same accused in respect of the same case. Any cryptic information given to police cannot be treated as an FIR [Mehi Lal Sharma v State of Bihar, 2007 Cr LJ 408 (Patna)].

Information given to police at 9 a.m. was not considered as first information report as she deposing in Court revealed that she had gone to Police Station at 4 a.m. and her statement was immediately recorded. This statement was not produced in Court. It was held that statement of 9 a.m. could not be treated as first information report [Mahabir Sahu v State, 2007 Cr LJ 653 (Jhar) : 2006 (4) JLJR 581 ].

Second first information report for same set of occurrence is illegal and can be quashed [Ramchandra Yadav v State, 2007 Cr LJ 472 (Jhar) : 2006 (3) JLJR 627 ].

If plea of two first information reports is not raised at earlier stage the same cannot be raised in appeal before Supreme Court [Mano v State of TN, 2007 Cr LJ 2736 (SC) : 2007 (2) Crimes 256 ].

Page 37 of 61 [s 154] Information in cognizable cases.— Prosecution witness had informed officer-in-charge of Police Station on telephone and the constable admitted that he had written down the same but it was treated as a cryptic report as both police personnels did not say that it was a detailed report. Hence another first information report full of details came to be recorded. It was held that no exception could be taken to the same for being treated as first information report. Explaining the delay independent witness said that priority was given to treatment of victim and injured witness and the same was accepted by Court [Vikram v State of Maharashtra, 2007 Cr LJ 3193 (SC) : AIR 2007 SC 1893 : 2007 AIR SCW 3392].

If an FIR is lodged after recording the statement of the witness, another FIR would not be admissible an evidence [Subramaniam v State of TN, 2009 (3) Crimes 140 (152) (SC) : 2009 Cr LJ 3002 : AIR 2009 SC (Supp) 1493].

It is nowhere mentioned in section 154, Code of Criminal Procedure, 1973 that in respect of a single incident, no two FIRs can be registered even if the version given by both the informants are materially different and they disclose different kind of offence. What has been prohibited is the registration of two FIRs for the same offence. It however does not preclude from lodging of two FIRs in respect of the same incident, having materially different allegations of commission of different cognizable offences [Ashok Kumar Tiwari v State of UP, 2008 Cr LJ 4668 (4671) (All) : 2008 (5) All LJ 591].

The second FIR is not barred when the allegations are different and the grievance is against a different person [Radheyshyam Goswami v State of Jharkhand, 2007 Cr LJ (NOC) 24 : 2006 (3) AIR Jhar R 271 (Jhar)]. [s 154.47] First FIR suppressed.— The inference drawn by the Trial Court that the first information of 1 p.m. had been suppressed by the prosecution as the names of the assailants were not known and there was no evidence to confirm the time of the recording of the FIR shortly after 4.45 p.m. as there was no evidence of the dispatch or delivery of the special report which cast clearly suspicion even on this part of the prosecution story. The said subsequent report could not, therefore, be treated as FIR. [Gopal Singh v State of MP, 2010 Cr LJ 3435 (3439) : (2010) 6 SCC 407 ]. [s 154.48] Delay in lodging FIR.— Delay in giving the FIR by itself cannot be a ground to doubt the prosecution case. In the instant case, the names of the accused were consistently mentioned throughout. There was absolutely no ground to hold that the FIR was brought into existence subsequently during the investigation and the mere delay in lodging the report by itself could not give scope for an adverse inference leading to rejection of the prosecution case outright. The evidence of eye-witnesses was consistent and corroborated by medical evidence. There was no inordinate and unexplained delay in filing FIR [Tara Singh v State of Punjab, AIR 1991 SC 63 : 1990 Cr LJ 2681 : 1991 Supp (1) SCC 536 : 1990 (3) Crimes 565 (SC)].

There was a delay of seven hours in filing of FIR. The distance between the place of incident and the police station was six kilometres. The injured informant was taken to hospital for treatment and thereafter the FIR was filed. The delay was held to be properly explained. [Muttaicose v State of Tamilnadu, AIR 2017 SC 3117 ]. In another case of delay in lodging FIR, the murder was committed in the night at 1:30 a.m. and the informant being a lady, proceeded for police station to file the FIR in the morning. The delay in lodging the FIR was held to be not fatal. [Satish v State of Haryana, AIR 2017 SC 3437 ].

The accused persons allegedly committed rape and assault on deceased and injured the informant and threw them out of a running bus. The injured person and the deceased were taken to the hospital for medical treatment. Since the delay in lodging FIR was due to medical treatment to seriously injured victim and the injured informant, therefore, the delay is not fatal to the prosecution case. [Mukesh v State for NCT of Delhi, AIR 2017 SC 2161 : 2017 (6) SCC 1 ].

The prosecutrix disclosed the incident of rape after two weeks to her mother, who immediately lodged the FIR.

Page 38 of 61 [s 154] Information in cognizable cases.— The prosecutrix, a young illiterate girl was threatened by the accused to face dire consequences if she would disclose the incident on the ground of her photographs and the voice recorded on the mobile of accused. The delay is justified. [Deepak v State of Haryana, AIR 2015 SC (Supp) 861].

The FIR was lodged against the accused mother-in-law and the sister-in-law of the deceased immediately after the incident with specific details mentioning ill-treatment, beating and demand of dowry made by them. It was held that there was no delay in lodging FIR. [Tarabai v State of Maharashtra, AIR 2015 SC (Supp) 424].

The FIR was registered after about eight hours after the incident, attempt to murder. The delay in lodging FIR is not fatal. The direct evidence of the victim is not disbelieved. [Rajgopal v Muthupandi, AIR 2017 SC 1230 ].

The fact of sexual assault on the minor girl aged about 9 years got disclosed after three years upon the medical examination for stomach ache. There was a further delay of three days in lodging FIR after disclosure of incident. The delay in lodging was held to be not fatal to prosecution case on the ground of possibility of exposing prosecutrix to the social stigma, hurting, honour of family and antagonizing other relations. [State of HP v Sanjay Kumar, AIR 2017 SC 835 : 2017 (1) SCC (Cri) 648 ].

Accused persons allegedly caused death of deceased with stick and yoke pin. The alleged eyewitnesses to the incident did not say as to when accused came with alleged weapons or any extension of help to the deceased. There was a delay of 6 days in lodging FIR and the same was unexplained. There was no evidence to prove that the death was caused due to injuries inflicted by recovered weapons. The accused persons were entitled to benefit of doubt. [Mahindra v Sajjan Golpha Rankhamb, AIR 2017 SC 2397 ].

A case alleging offence under section 304B, 498A was closed after inquiry under section 174 of the Code. After years, a fresh FIR was registered on the basis of an anonymous letter received by the brother of the deceased stating that the death of the deceased was pre-planned murder for demand of dowry. The delay in lodging FIR raised grave doubt about truthfulness of allegations made therein, especially when relations between parties were cordial even after the death of the deceased. The proceeding against the appellants pursuant to such FIR was held to be an abuse of the process of law and liable to be set aside. [Manoj Kumar Sharma v State of Chhattisgarh, AIR 2016 SC 3930 : 2016 (9) SCC 1 ].

In a murder case the Apex Court held that if the small delay between the time of occurrence and in registering of the FIR, is satisfactorily explained then the prosecution case cannot be doubted. [Gajanan Dashrath Kharate v State of Maharashtra, AIR 2016 SC 1255 : 2016 (4) SCC 604 ].

In a murder case the occurrence took place at about 02:00 p.m. and the complaint was lodged at about 06:15 p.m. on same day. The police station was situated at a distance of 54 Kms. from the place of occurrence. In such circumstances there is no delay in lodging the FIR. [Gyaneshwar Shyamal v State of WB, AIR 2016 SC 1585 ].

Mere delay in lodging the complaint will not be fatal to the case of the prosecution though such delay could be with the intention of lodging a false case. What is required is that the Court would have to assess the circumstances under which such delay occurred [State v Satish Shetty, 2008 Cr LJ 2490 (2500) (Kant) : 2008 (5) Kant LJ 50 : 2008 (3) AIR Kant R 96 : 2008 (3) AICLR 396].

The death of the wife was allegedly caused by consuming poison. The FIR was lodged after 10 hours on the day next after tragedy. It was held that it, in fact, cannot constitute inordinate delay as the FIR as such cannot be categorised as after-thought or as contrived. [Sher Singh v State of Haryana, AIR 2015 SC 980 : 2015 (3) SCC 724 ].

Page 39 of 61 [s 154] Information in cognizable cases.— It is settled in law that mere delay in lodging the First Information Report cannot be regarded by itself as fatal to the case of the prosecution. However, it is obligatory on the part of the Court to take notice of the delay and examine, in the backdrop of the case, whether any acceptable explanation has been offered, by the prosecution and if such an explanation has been offered whether the same deserves acceptance being found to be satisfactory. Thus, whether the delay creates a dent in the prosecution story and ushers in suspicion has to be gathered by scrutinizing the explanation offered for the delay in the light of the totality of the facts and circumstances. Greater degree of care and caution is required on the part of the Court to appreciate the evidence to satisfy itself relating to the explanation of the factum of delay [Kanhaiya Lal v State of Rajasthan, (2013) 5 SCC 655 : (2013) 6 Scale 242 ; see also Kilakkatha Parambath Sasi v State of Kerala, AIR 2011 SC 1064 : (2011) 4 SCC 552 ].

Early reporting of occurrence with all its vivid details gives assurance regarding truth of its version. But every delay in lodging FIR is not fatal. Where murder was committed in the night and the FIR was lodged next early morning, it was held by the Supreme Court that the explanation that the informant did not go to the police station out of fear because of long standing enmity, was held to be sufficient [Bhagalool Lodh v State of UP, AIR 2011 SC 2292 : (2011) 13 SCC 206 .] In such cases of delay the Court has to be careful to see that the proceedings are not allowed to be degenerated into weapon of harassment and persecution. But where the complainant had lost two sons in the incident and one grandson had received serious injuries, it was held that the delay in lodging FIR stood explained where complainant had gone to lodge the FIR after hospitalizing the injured [Bhajan Singh v State of Haryana, AIR 2011 SC 2552 : (2011) 7 SCC 421 : (2011) 3 SCC (Cri) 241 ].

However, in a rape case, the delay of 60 hours in lodging the FIR was sought to be explained on the ground that no police officer was present at the police station and so the prosecutrix and her family had to go to another police station about 22 kilometers away to lodge the information. It was held that the explanation was difficult to believe inasmuch as the police station initially visited was a full-fledged police station which would invariably be manned [Bhaiyamian v State of Madhya Pradesh, AIR 2011 SC 2218 : (2011) 6 SCC 394 : (2011) 2 SCC (Cri) 983 ].

Where there was delay in registering the first information report if there was proper-explanation of delay produced from the prosecution side, it was held by the High Court that FIR was not an afterthought [Vedpal v State of Haryana, 1995 Cr LJ 3556 P&H].

The object of insisting upon prompt lodging of FIR is to obtain the earliest information regarding the circumstances in which the crime was committed, including the names of the actual culprits and the part played by them, the weapons used, if any. Any delayed version will be prone to introduction of a coloured version or exaggerated story [Matisan Bhumji v State of Bihar, 2010 Cr LJ 1197 (Jhar). See also Jai Prakash Singh v State of Bihar, AIR 2012 SC 1676 : (2012) 4 SCC 379 : (2012) 2 SCC (Cri) 468 ].

Though there was a delay of 42 days in lodging the complaint to the police, the prosecution witnesses (PW-1 & PW-2) in their evidence explained that all their family members including themselves were uneducated and there was no male members in their family for their assistance. The witnesses also stated that the accused persons posed threat and, therefore, out of fear they did not inform the Police. The explanation for delay was accepted by the Court. [Santosh Moolya v State of Karnataka, 2010 Cr LJ 2892 (2895) : AIR 2010 SC 2247 : (2010) 5 SCC 445 ].

Mere delay in filing of FIR is not a ground in itself for discarding the case. Totality of the facts have to be looked into. [Ranjit Das v State of WB, 2000 Cr LJ 1241 : 2000 (2) Crimes 133 : 2000 (1) Cal HN 57 (Cal); Kalyanam v State, 2010 Cr LJ 4654 (4658) (Mad)].

There is no delay in filing the FIR where (i) the offence took place at 7 p.m. (ii) death of the deceased took place at 7.55 p.m. and (iii) informant went to the Police Station and lodged a report at 8 p.m. (particularly where

Page 40 of 61 [s 154] Information in cognizable cases.— the informant himself was also on the hit list. [Sheelam Ramesh v State of AP, AIR 2000 SC 118 : 1999 AIR SCW 4080 : 2000 Cr LJ 51 : 1999 SCC (Cri) 1437 : 1999 (4) Crimes 354 (SC)].

In the instant case, the lodging of FIR was delayed by 4½ hours. The deceased who had sustained injuries had to be taken to hospital on bullock, the arrangement of which took some time. The informant who had prepared FIR was obstructed by the relatives of accused collected on way. Moreover, the informant had to cover a distance of six miles in heavy rains. It was held that in view of the circumstances, the delay in lodging FIR was explained [Ram Pal Singh v State of UP, 2009 Cr LJ (NOC) 1217 (All)].

Where information was given to police by wife of deceased at 9 a.m. at the scene of occurrence that took place at 5 p.m. on the previous day, whereas she deposed in Court that she had informed about the occurrence to the village Chowkidar and went to the police station alongwith him and the police recorded her statement at 4 a.m., her subsequent statement given at 9 a.m. could not be said to be an FIR [Mahabir Sahu v State of Bihar, 2007 Cr LJ 653 (Jharkhand); Naggraj v State, (2007) 1 Mad LJ (Cr) 259 (Mad)].

Where the deceased was immediately admitted to hospital after the incident and the FIR was recorded in the hospital by the Police Officer, it was held that the FIR was not delayed [Parasram v State of Maharashtra, 2009 Cr LJ (NOC) 1139 (Bom) : 2009 (2) Bom CR (Cri) 43 : 2009 (4) AIR Bom R 675].

Explaining the justification for delay in filing of first information report it was held that if any person of enemy side during war period is caught immediately, first information report against him is not filed because that can make his companion (conspirator) alert. Hence delay in such situation is not fatal [State v Jaman Haji Mamad Jat, 2007 Cr LJ 1584 (Guj)].

Though prompt lodging of FIR lends assurance that the same has not been done with consultations and deliberations, every delay is not fatal to the prosecution where it is reasonably explained. Particularly in cases of rape some hesitation is shown by the prosecutrix and her family because honour of the family is involved. Thus, in a case of rape, the brother of the prosecutrix deposed that after his return from the fields he was informed that his sister had not returned home, he was informed by two co-villagers that she was seen with the accused, but did not lodge report as honour of the family was involved. It was held that the delay in lodging FIR was reasonably explained and it cannot be said that FIR was lodged after consultation and deliberation [State of UP v Chhoteylal, AIR 2011 SC 697 : (2011) 2 SCC 550 : (2011) 2 SCC (Cri) 674 ].

In a rape case, the prosecutrix and her father were made to run from pillar to post by police authorities, before their case could be registered. It describes and points towards the apathy in functioning of investigating agencies in heinous crimes [Prem Prakash v State of Haryana, AIR 2011 SC 2677 : (2011) 11 SCC 687 : (2011) 3 SCC (Cri) 463 ].

In a gang-rape case, the Supreme Court held that a young girl, who underwent trauma of rape, is likely to be reluctant in describing those events to anybody including her family members. Thus, the report lodged without any delay the moment she told her parents about the incident, can be a reasonable explanation for the delay in lodging the FIR [Om Prakash v State of Haryana, AIR 2011 SC 2682 ].

There was a delay of 5 months in lodging the first information report in a rape case. The matter was promptly reported to the father of accused. A settlement whereby the assurance of marriage was given by the accused to the prosecutrix was arrived at and the parents of the accused persuaded the parents of prosecutrix not to lodge first information report. However, the accused and the father retracted whereafter complaint was lodged. It was held that since the prosecutrix and his parents belong to the tribal community, and they had to observe the traditions of community, the delay was adequately explained [Shyam Nayak v State of Jharkhand, 2008 Cr LJ (NOC) 700 (Jhar) : 2008 (1) AIR Jhar R 971].

Page 41 of 61 [s 154] Information in cognizable cases.— The delay of eight days in lodging the FIR, could not be explained and was held fatal [Munna v State of Rajasthan, 2008 Cr LJ 3975 (3980) (Raj-DB) : 2008 (4) Raj LW 2938 ].

Delay in filing an FIR in a rape case should be ignored where it is plausibly explained [State of Maharashtra v Sarala Sagu Kakore, 1997 Cr LJ 768 (Bom)]. In a rape case, mere delay in lodging the FIR is not by itself necessarily fatal to the prosecution case. Effect of delay in lodging report with police is a matter of appreciation of evidence and the Court must consider the delay in the background of facts and circumstances of each case [Ramdas v State of Maharashtra, AIR 2007 SC 155 ; Sampath v State, (2007) 1 Mad LJ (Cr) 730 (Mad)].

In a case of rape the fact that the FIR has been lodged after a little delay of very little significance. [Ashok Surjilal Uike v State of Maharashtra, 2011 Cr LJ 2330 (2331) (SC)].

The question of delay has to be dealt with against the background of the entire evidence on record [Ranjit Das v State of WB, 2000 Cr LJ 124 : 2000 (1) Cal HN 57 : 2000 (2) Crimes 133 (Cal)].

It is a settled position of law that delay can be explained by the prosecution either from oral testimony of the witness or he can place circumstances on the basis of which it can be concluded that delay in lodging FIR has been properly explained. In the instant case, PW-4 had been cross-examined at length. She explained the delay by saying that she went to the Police Station in the night to inform the police about the occurrence. Her statement was not recorded at the police station. The police personnel came at the spot with her. Thus the delay had been properly explained by the above evidence. [Sitaram Marandi v State of Jharkhand, 2011 Cr LJ 147 (155) (Jhar)].

It must be remembered that illiterate villagers are not very accurate about the time; hence, merely on the basis of the contradiction in their statement about accurate time it cannot be held that there is no proper explanation about the delay in lodging the FIR [Jale Singh v State of Rajasthan, 1996 Cr LJ 1177 : 1996 (1) Raj LW 145 : 1996 (2) WLC 373 (Raj)].

Courts cannot overlook the fact that in sexual offences delay in lodging FIR can be due to a variety of reasons particularly reluctance of the prosecutrix or her family members to go to police and complain about incident. [State of Punjab v Gurmit Singh, AIR 1996 SC 1393 : 1996 Cr LJ 1728 : 1996 (2) SCC 384 : 1996 SCC (Cri) 316 : 1996 (1) Crimes 37 (SC)].

The prosecutrix, a married woman, was under the spell of criminal intimidation of the accused and could not decide whether the report should be lodged. Added to this, her husband initially dissuaded her by saying that they would be defamed in the village if such a report was lodged. It was only after arrival of her brother that she mustered courage to go to the Police Station. It was held that the delay was explained [Mudhakar Narayan Kotambe v State of Maharashtra, 2009 Cr LJ 3772 (3776) (Bom) : 2009 All MR (Cri) 1439 : 2009 (3) Bom CR (Cri) 708 ].

When an FIR was already filed under section 420 etc, Indian Penal Code, 1860 a second FIR under Narcotics Drugs and Psychotropic Substances Act is not permissible. However, the police can induct further investigation [Ashwini Kumar v State of Rajasthan, 1997 Cr LJ 813 : 1997 (1) Raj LW 579 (Raj)].

If there was delay in lodging the FIR, cogent reasons for delay must be placed by prosecution before trial Court and that could not be produced before the appellate Court [Chandra Parappa Kumbhar v State of Maharashtra, 1995 Cr LJ 290 (Bombay)].

From the facts and circumstances of the case it appears that the FIR was not lodged after the investigation had

Page 42 of 61 [s 154] Information in cognizable cases.— started. Besides this where it was contended by the counsel for the accused applicant that FIR in question was registered after a great deliberation at the police station because there was delay of 2-1/2 hours in lodging the said FIR, High Court did not agree with the same because there was proper explanation of delay from the prosecution side [Ram Narain Singh v State of Rajasthan, 1995 Cr LJ 2847 ].

In a dowry death case, the brother of the deceased was in army, on receipt of news of death of his sister came to village. After inquiry he came to know that his sister was murdered by her husband and filed the FIR. It was held that the delay in FIR was not fatal [Brahm Singh Patwal v State, 2008 Cr LJ 629 (632) (Uttra)].

Failure of prosecution to explain delay should be viewed with suspicion [Ramji Surjya v State of Maharashtra, AIR 1983 SC 810 : 1983 Cr LJ 1105 : (1983) 3 SCC 629 : 1983 (2) Crimes 237 : (1983) 2 SCJ 20 (SC)]. Where robbery took place in the dead of night and FIR was lodged early morning by a person who had not witnessed the incident, FIR was not ante-timed because names of the accused were not noted in the diary [Omprakash, AIR 1983 SC 431 : 1983 Cr LJ 831 : 1983 (1) Crimes 804 : (1983) 2 SCC 358 ].

The delay in lodging FIR was held fully explained when the incident occurred at about 4.00 pm, relatives gathered took her to rural hospital at 7.00 pm. and thereafter to Civil Hospital at 10.00 pm. victim died 3 hours thereafter [Uttam Tukaram Khupse v State of Maharashtra, 2008 Cr LJ (NOC) 1293 (Bom) : 2008 All MR (Cri) 1578 : 2009 (1) Bom CR (Cri) 902 ].

In the event the delay is properly and satisfactorily explained, the prosecution cannot be thrown out merely on the ground of delay in lodging the FIR. The explanation has to be considered in the light of totality of facts [Ashok Kumar Chaudhary v State of Bihar, 2008 Cr LJ 3030 (3033) (SC) : AIR 2008 SC 2436 : 2008 AIR SCW 3739].

Inordinate delay of 12 hours in lodging the FIR left much time for concoction and deliberation and was held to have given serious jerk to prosecution case [Dhan Prasad v State of UP, 2003 Cr LJ 4127 : 2003 All LJ 2241 : 2003 (46) All Cr C 1004 : 2003 (2) All Cr R 1823].

The FIR was lodged on 19 December, 1994 at 2:30 a.m. for the incident said to have taken place on 15 December, 1994 at 9:30 p.m. The complainant party took the injured persons to the hospital. Two police stations were on their way but the complainant party did not stop there, rather they proceeded straight to the hospital. Besides the deceased, others suffered simple injuries. In the circumstance, delay in lodging FIR created doubt about the genesis of the prosecution story. The Court held : “In our view, therefore, there are no mitigating circumstances for not reporting to the police station at the first hour especially when the police stations are on the way to general Hospital”. This is because “in the ordinary circumstances, it is quite imperative that the complainant party could have stopped at the police station and sought necessary help from the police station and also given first-hand information to the police” [Raghunath v State, AIR 2003 SC 165 : 2003 Cr LJ 40 : (2003) 1 SCC 398 : 2003 (1) Crimes 260 ].

As the deceased was not found at the place of occurrence, the informant was trying to locate the deceased throughout the night and only after tracing him out in the nala and being sure of his death filed the information immediately thereafter. The delay was held explained. [Guru Dev Singh v State of MP, 2011 Cr LJ 3101 (3106) (SC)].

If an FIR is lodged belatedly, an inference can rightly follow that the prosecution story may not be true but equally on the other hand if it is found that there is no delay in recording of the FIR, the prosecution stands immeasurably strengthened. [Kolikkatha Prambath Sasi v State of Kerala, 2011 Cr LJ 3132 (p 3136) (SC).]

The observation that one of the persons accompanying the injured could have gone to the police station and given a statement, is farfetched and it does not take into account the realities of life. The accused had suffered

Page 43 of 61 [s 154] Information in cognizable cases.— as many as 58 injuries most of them incised with large quantities of blood splitting out and was in a serious condition. It was held that FIR was filed spontaneously. [Kolikkatha Prambath Sasi v State of Kerala, 2011 Cr LJ 3132 (p 3136) (SC)].

Delay in lodging the FIR cannot be used as a ritualistic formula for doubting the prosecution case. Delay has the effect of putting the Court on its guard to search if any explanation has been offered for the delay, and if offered, whether it is satisfactory or not. If the explanation is not satisfactory and there is possibility of embellishment on account of such delay, the delay would be fatal to the prosecution. However, if the delay is explained to the satisfaction of the Court, the delay cannot be itself a ground for disbelieving and discarding the entire prosecution case [State v Gian Chand, 2001 Cr LJ 2548 (SC)]. Delay in giving the FIR by itself cannot be a ground to doubt prosecution case [Amar Singh v Balwinder Singh, AIR 2003 SC 1164 : 2003 Cr LJ 1282 : (2003) 2 SCC 518 : 2003 (2) Crimes 186 ]. There was delay of two days in sending the FIR to the Magistrate. The fact that those two days were holidays cannot be a ground for condoning the said delay because the requirement of law is that FIR should reach the concerned Magistrate without any undue delay. [State v Teja Singh, 2001 Cr LJ 1176 : AIR 2001 SC 990 : 2001 (1) Crimes 232 : (2001) 3 SCC 147 ].

In the instant case there was some delay in lodging the FIR, it is but natural in a traditional bound surety to avoid embarrassment which is inevitable when reputation of woman is concerned. Delay in every case cannot be a ground to arouse suspicion. It can only be so when the delay is unexplained [Vidyadharan v State of Kerala, 2004 Cr LJ 605 : AIR 2004 SC 536 : 2003 AIR SCW 6511 : 2003 (4) Crimes 497 (SC)].

Time of three hours, between the occurrence and recording of statement in a given case, is sufficient for deliberations and discussions, particularly when the occurrence has the traces of faction rivalry. It is not as if that the incident in the present case has taken place late in the night, and the information could not reach the Police Station, due to lack of communication. Within 15 minutes, the Police received the information, and the first thing the Police ought to have done was, to receive a written complaint, or to record the statement of the kin of the deceased. PW-11, the S.I. of Police, who registered the FIR. failed to explain the delay in this regard. In his cross-examination, he admitted that he did not verify as to who gave the information on telephone, and as to why he did not record the statement, soon after his arrival. A clear suggestion was made to him to the effect that, initially he received a complaint, at the first instance, and by suppressing the same, he brought Ex. P-1, into existence [Kana Ramkrishna Reddy v State of AP, 2008 Cr LJ 2918 (2921) (AP) : 2008 (2) Andh LT (Cri) 4 : 2008 (1) Andh LD (Cr) 677].

Delay in filing the FIR was held not fatal where in a case of kidnapping for ransom the witnesses did not inform the police because they apprehended that if they informed the police, the kidnapped would be murdered [Nandlal Prasad v State of Bihar, 2008 Cr LJ 579 (583, 584) : 2008 (2) AIR Jhar R 15 (Pat-DB)].

In a case of murder, where the FIR was lodged by the father of the deceased woman only after her cremation, it was found that the father of the deceased had only been informed that his daughter had consumed poison. No other detail was brought to his notice and the body was cremated against his wishes. Thus, the Supreme Court held that the delay stands explained [Nagesh v State of Karnataka, AIR 2012 SC 1965 : (2012) 6 SCC 477 : (2012) 3 SCC (Cri) 168 ].

Where the brother of the deceased lady was an eye witness to murder by her father-in-law the delay in lodging the FIR was occasioned due to threat administered to the informant. Due to threat, the informant preferred to go back to his village and the FIR was lodged after he returned with others. It was held that the delay of a few hours in lodging the FIR cannot be termed as fatal to the prosecution [Jitendra Kumar v State of Haryana, AIR 2012 SC 2488 : (2012) 6 SCC 204 : (2012) 3SCC (Cri) 67].

In a murder case, the FIR was lodged after delay by the informant who had witnessed the murder. The evidence of the informant showed that he was threatened by the accused persons. It was held that the possibility of the informant being afraid of the threat cannot be ruled out as every human being would not react in the same manner when he sees commission of an offence. The informant talked to the parents of the

Page 44 of 61 [s 154] Information in cognizable cases.— deceased on phone and evidence showed that the parents of the deceased asked him to await their arrival and thereafter the informant gathered courage to lodge FIR after consultation with them. Thus, the delay was held to have been reasonably explained [Gurjinder Singh v State of Punjab, AIR 2011 SC 972 : (2011) 3SCC 530 : (2011) 1 SCC (Cri) 1199 ].

Where an incident of murder happened at 2:30 p.m. and the police arrived at the scene an hour later, it was found that the deceased had received as many as 58 injuries, most of which were incised and cutting wounds with profuse bleeding. Therefore, the first anxiety of everybody, including attendants and doctors, was to take the injured to hospital. It was held that the formal report lodged at 7:15 p.m. and immediately forwarded to Magistrate who received it at 10:00 p.m., cannot be said to be lodged after delay [Kilakkatha Parambath Sasi v State of Kerala, AIR 2011 SC 1064 : (2011) 4 SCC 552 : (2011) 2 SCC (Cri) 355 ].

Where murder was committed at midnight, the father and the brother of the deceased were under shock and also afraid of the accused persons, the FIR lodged next day at 10 am was held not delayed [Kewal Singh v State of Punjab, 2007 Cr LJ (NOC) 525 (P&H-DB)].

There was delay in lodging of the FIR, the reasonable explanation was given by the prosecutrix as well as by her father that when they were going to lodge the report, the accused armed with a gun threatened them to be killed. It was held that the delay in lodging of the FIR was not fatal for the prosecution. [Bharat v State of MP, 2010 Cr LJ 1862 : (2010) I DMC 296 (MP)].

In the instant case the incident occurred at about sun set. FIR was lodged at 10.30 p.m. Place of occurrence was 6 miles away from the police station. There was no conveyance plying on the day on account of Holi festival. The informant who was injured in accident was examined by doctor and then he had to wait for 2 hours for tempo to go to police station. Delay was fully explained [Radha Mohan Singh v State, 2005 Cr LJ 167 : 2004 AIR SCW 447 : 2004 (1) Crimes 317 (All)].

The incident took place on 28 March, 1992 and the FIR was lodged on 30 March, 1992 about 9 O’clock. Held, fearing loss of social status attained in the society the family members of the prosecutrix might have lodged the FIR belatedly and other similar reasons might have caused in lodging the FIR belatedly. Since evidence of prosecutrix was corroborated by the FIR as also by the testimony of all other witnesses, the delay in lodging the FIR did not make any difference [Mahendra Kumar v State of MP, 2010 Cr LJ 1167 (1171) (CHH)].

Obviously, the deceased had first to be taken care of in the hospital before the complainant could go to the police station and lodge his complaint. In the instant case the submission that the complaint was filed after deliberation was rejected [State of Goa v Devendra Kashinath Chopdekar, 2010 Cr LJ 1011 (1016) (Bom) : 2010 All MR (Cri) 211].

The delay of two days in lodging the FIR cannot be a ground for disbelieving the entire case of the prosecution as the family members of the deceased were busy with the medical treatment of the victim deceased and also bereaved due to her death. [Marinal Kanti Roy Barman v State of Tripura, 2010 Cr LJ 1679 (p1704) : (2009) 5 GLT 157 : (2010) 4 GLR 445 (Gau)].

In the instant case the incident occurred at about 5.30 p.m. and the FIR was recorded at 9.00 p.m. on the same date. PW-1 who took the injured to the hospital and being a close relative would not leave the dead body in the hospital. When other relatives reached the hospital he left for police station to record F-I statement. F-I statement reached the Court on next day at 1.30 p.m. It was held that there was no delay either in recording F-I statement or sending the challan to Court [Hem Raj v Raja Ram, 2004 Cr LJ 901 (SC) : 2004 SCC (Cri) 1412 : AIR 2004 SC 1489 ].

In this case, the incident occurred in night. The eye-witness had fled away because of the threats given to

Page 45 of 61 [s 154] Information in cognizable cases.— them. They stayed out throughout the night. The two married sisters of deceased who had come to spend time on the occasion of some festival gathered courage at the earliest to lodge FIR. If they started from their village round about 8 O’clock on the next day to reach the police station at about 10 am, no exception can be taken thereto. Delay in lodging FIR in a case of this nature is not such as would impel the Court to infer that there existed a possibility of false implication [Shivappa v State of Karnataka, 2008 Cr LJ 2992 (pp 2996, 2997) (SC) : AIR 2008 SC 1860 : 2008 AIR SCW 2608].

No doubt there is a delay of one month and 12 days in lodging the complaint. Both PWs 1 and 2 have given the explanation for the delay in approaching the police. Both of them stated in their evidence that they were put under threat by the accused and they were told that if they reveal the incident to anyone, they would be killed. In spite of this, both the victims went and informed the matter to their mother and then to PW 4 and also informed a women’s organization leader and after mustering of courage, they finally lodged the complaint in writing through PW 1. In the said circumstances, not only the delay in lodging the FIR has been properly explained, but in the case of this nature, one does not expect the victims to file the complaint without loss of time [Santosh Maolya v State, 2008 Cr LJ 3334 (p 3339) (Kant) : 2008 (4) AIR Kant R 242].

Where the FIR regarding fatal injuries leading to death of victim was lodged at 7.45 am, at the police station situated at the distance of 4 kms., when the occurrence took place at 6.30 am, it was held that the FIR was promptly lodged [Anand Singh v State of UP, 2010 Cr LJ (NOC) 334 ].

In a rape case as honour of family was involved delay of 10 days was held reasonable [Harpal Singh v State of HP, AIR 1981 SC 361 : 1981 Cr LJ 1 : (1981) 1 SCC 560 : 1981 SCC (Cri) 208 (SC)]. In case of sexual offences the criteria may be different altogether. As honour of the family is involved, its members have to decide whether to take the matter to the Court or not. In such a fact situation, near relations of the prosecutrix may take time as to what cause of action should be adopted. Thus delay is bound to occur. [Satpal Singh v State of Haryana, 2010 Cr LJ 4283 ].

Delay in lodging an FIR in sexual offences can be due to variety of reasons particularly the reluctance of the prosecutrix or her family members to go to the Police Station and complain about the incident which concerns the reputation of the prosecutrix and the honour of the family [Vidyadharan v State of Kerala, AIR 2004 SC 536 : 2004 SCC (Cri) 260 : 2004 Cr LJ 605 (p 607) (SC) : 2003 (4) Crimes 497 ; State of Rajasthan v Om Prakash, AIR 2002 SC 2235 : 2002 Cr LJ 2951 (p 2955) (SC); State of Rajasthan v Om Prakash, 2002 Cr LJ 2951 (p 2955) (SC); Bheru Lal v State of Rajasthan, 2004 Cr LJ 1677 (pp 1680, 1681) (Raj) : 2004 (1) Raj LW 602 ; Suraj Mukhia v State of Bihar, 2002 Cr LJ (NOC) 124 : 2000 (1) East CrC 332 ]. Where the accused teacher had committed rape on her student, the delay of six months in lodging complaint was held of no significance [State of HP v Shree Kant Shekari, 2004 Cr LJ 4232 (pp 4235, 4236) (SC) : AIR 2004 SC 4404 : 2004 (4) Crimes 32 : (2004) 8 SCC 153 ]. Where the parents of the prosecutrix first tried to search the prosecutrix and when they failed, the FIR was lodged, the delay in filing FIR was not held fatal [Premlal v State of MP, 2005 Cr LJ 145 (1147) (MP)]. Where the girl was mentally deficient and was not aware of the catastrophe which had befallen her, delay in lodging FIR was held not fatal [Tulsidas Konalkar v State of Goa, (2003) 8 SCC 590 (p 592) : 2003 (4) Crimes 380 : AIR 2004 SC 978 ]. Where the prosecutrix on account of threat from the accused did not tell about the incident to her parents and when her mother came to know about the incident. She first approached the woman organisation and then FIR was lodged, the delay was held not fatal [Zesangliana v State of Mizoram, 2005 Cr LJ 1057 (pp 1059, 1060) (Gau)]. Though the importance of FIR made promptly cannot be minimized the mere fact that it was immediately made after the incident cannot rule out any embellishment in the version [Tarachand v State of Haryana, AIR 1971 SC 1891 : 1971 Cr LJ 1411 : (1971) 2 SCC 579 : 1971 SCC (Cri) 593 ].

In the present case, the complainant was a foreign national. Naturally after the rape committed on her by two persons, she must have been in a condition of shock and only when she contacted the Italian Embassy and received instructions from there to get lodged report with local police she could do so. The said explanation was held sufficient and created no doubt in the prosecution story. [Ram Swarup v State of UP (Now Uttrakhand), 2011 Cr LJ 924 (p 927) (Uttara)].

Page 46 of 61 [s 154] Information in cognizable cases.— Where the persons injured in the incident were admitted in the hospital and the deceased was struggling for life in the hospital, delay in filing FIR filed immediately after his death was held not fatal [Mohinder Singh v State of Punjab, 2007 Cr LJ 2478 (pp 2482, 2483) (DB) : 2007 (2) Chand Cri C 395].

The police station was situated at the distance of 13 kms and it took one hour to the witnesses to take the injured to the hospital and thereafter the FIR was lodged. The FIR was held prompt [State of Uttrakhand v Sohan Singh, 2007 Cr LJ 3703 (3710) (Chhat)].

If the incident of rape was true and the complainant had the support of the Sarpanch, he would have gone to police station to lodge the report soon after the occurrence but after passing more than 50 hours, the complainant lodged the report with the police, whereas the distance between the place of occurrence and the police station is only 5 kms. The prosecution utterly failed to furnish reasonable and satisfactory explanation of more than 50 hours inordinate delay. Thus delay was fatal to the prosecution. [Ram Dhan v State of Rajasthan, 2010 Cr LJ 2652 (p 2654) : (2010) 4 Crimes 393 : RLW 2010 (4) Raj 3613 (Raj)].

Since a delayed FIR is not illegal hence it cannot be overlooked as it does not operate as fatal to prosecution case. [Ravinder Kumar v State of Punjab, AIR 2001 SC 3570 : 2001 Cr LJ 4242 : (2001) 7 SCC 690 (SC)].

Delay in reaching FIR to Magistrate is not fatal unless it is shown that there was false implication of accused. Delay occurred due to police constable went to residence of S.P. first instead of going to residence of Magistrate is not a serious infirmity [State v Mallikarjuna-@-Mallu, 2007 Cr LJ 910 (AP); Sampath v State, (2007) 1 Mad LJ (Cr) 730 (Mad)].

In the instant case in the initial information place of occurrence was not correctly described. When the police personnel reached the place of occurrence all the witnesses had gone to hospital along with injured. The witnesses could not be found at the hospital because they had left from there and he had to come back to the place of occurrence where he recorded the statement of witness. In view of the above the delay of four hours in recording FIR was held insignificant [Ramesh Kumar v State of Delhi, 2010 Cr LJ (NOC) 36 (Del)].

The crime was committed around midnight whereas the FIR was handed over to the investigation officer as soon as he came to the village after information about incident in early morning hours. The police station was 5 Kms away from the place of occurrence. It was held that there was no delay in lodging the FIR [P Venkataswarlu v State of AP, AIR 2003 SC 574 : 2002 AIR SCW 5216 : 2003 Cr LJ 837 : 2003 SCC (Cri) 1414 : 2003 (2) Crimes 506 (SC); State of Punjab v Joginder Singh, (2003) 12 SCC 179 ].

In this case, the the delay in lodging FIR can be explained by the fact that the dispute was within the family and initially in the absence of any external injury, it did not appear that any serious damage had been caused to the deceased and it was only after his condition had declined rapidly that the FIR had been lodged. [Swapan Kumar Senapati v State of WB, 2011 Cr LJ 2631 (p 2632) (SC).]

There is no hard and fast rule that any delay in lodging the FIR would automatically render the prosecution case doubtful. It necessarily depends upon facts and circumstances of each case [Amar Singh v Balwinder Singh, AIR 2003 SC 1164 : 2003 AIR SCW 717 : 2003 (2) SCC 518 : 2003 Cr LJ 1282 : 2003 (2) Crimes 186 (SC); Gaya Yadav v State of Bihar, 2003 Cr LJ 1564 : AIR 2003 SC 1759 : 2003 AIR SCW 1191 : 2003 (2) Crimes 257 : 2003 (9) SCC 122 (SC)].

The entire area was dacoit infested area and police station was also about eight kilometers away from the place of occurrence and, therefore, it was quite possible that PWs 1 & 2 who were the eye-witnesses and the sons of the deceased thought it fit to travel out of the place of occurrence at about 4.00 a.m. in the morning to lodge the FIR which was accordingly lodged at the police station at 6.30 a.m. It was held that there was well reasoned

Page 47 of 61 [s 154] Information in cognizable cases.— and proper explanation for delay in lodging the FIR. [Chunnilal v State, 2010 Cr LJ 3836 (3840) : AIR 2010 SC 2467 : (2010) 7 SCC 496 ].

In the instant case, the place of incident was about 3 kms away from village which was itself situated in the remote area of Taluka. It was stated that no one who was present at the time of occurrence could dare to leave the place in the dead of the night to inform others or to go to the police station. The delay was held sufficiently explained [Shivraj Bapuraj Jadhav v State of Karnataka, AIR 2003 SC 3578 : 2003 Cr LJ 3542 : 2003 (6) SCC 392 : 2003 (3) Crimes 161 : 2003 AIR SCW 3447 (SC)].

The delay in lodging FIR in this case was not fatal to the prosecution case as it was natural for the father and the other relatives of the deceased child to have first searched for her in the neighbourhood and the neighbouring villages and in the relations before reporting the matter to the police and hence they acted accordingly [Madan Lal v State of Punjab, 2010 Cr LJ 3222 (3277) (P&H)].

Where the FIR was lodged within 2 hours of the occurrence, the FIR was held prompt and not delayed action [Jasbir Singh v State of Haryana, AIR 2002 SC 2386 : (2002) Cr LJ 2975 (SC) : 2002 (1) Cur CrR 205 : JT (2001) 10 SC 552 ]. Where the informant had lost his son, the delay of five hours in lodging the FIR at the police station located at a distance of 5 kms was held insignificant [State of Punjab v Pohla Singh, AIR 2003 SC 4407 : 2003 Cr LJ 5010 (5013) (SC) : 2003 (4) Crimes 198 : 2004 SCC (Cr) 276].

The accused killed his wife by burning. The relations of the victim were ignorant about the incident. The wife died after 1½ months of the incident. The FIR was filed when the relations of the victim came to know about the incident. The delay of 19 days in filing FIR was held not fatal [Bhaju v State of WB, 2007 Cr LJ 3687 (3690) (Cal-DB)]. The accused abused the complainant at 9 am by using his community name and told that he would be beaten with chappal. The complainant lodged the FIR at the police station the next day at 11.30 am. The inordinate delay in lodging the FIR could not be explained and the conviction of the accused was set aside [Athimula Gaunder v State of TN, 2007 Cr LJ 271 (273) : 2006 (2) Mad LJ (Cri) 256 (Mad)].

Prompt filing of the FIR is not an unmistakable guarantee of the truthfulness of the version of the prosecution. A common sense view has to be taken in ascertaining whether the first information report was lodged after an undue delay so as to afford enough scope for manipulating evidence [Sundar v State, (2007) 1 Mad LJ (Cr) 299 (Mad)].

The FIR had been lodged after 60 hours of the incident. The prosecution case was that PW-1 accompanied by her parents had gone to police post “P” attached to Police Station “U” immediately after the incident but had found no police officials present therein and had then gone to the Police Station “S” and lodged a report at 12 noon the next day. The explanation for delay was not believed as the Police Station first visited was a fullfledged Police Station [Bhaiyamiyan v State of Madhya Pradesh, 2011 Cr LJ 3577 (3579) (SC)].

There was considerable delay in lodging the First Information Report. If really the occurrence had taken place as alleged, there was no reason for PW-4 to keep sitting in the village till 7.00 a.m. and only thereafter to start for the police station for lodging the report. The plea sought to be urged that in those days the terrorists were active in the State of Punjab, is unacceptable in the facts of this case, because PW-4 knew that the assailants were not members of a terrorist group but were members of the family of his brother’s wife [State of Punjab v Ajaib Singh, AIR 2004 SC 2466 : 2004 Cr LJ 2547 : 2004 (2) Crimes 459 : 2004 AIR SCW 2996 (SC); See also Mukteshwar v State, 2004 Cr LJ 1335 (1338) (All) : 2004 All LJ 97 : (2004) 48 All CrC 81].

Time of three hours, between the occurrence and recording of statement in a given case, is sufficient for deliberations and discussions, particularly when the occurrence has the traces of faction rivalry. It is not as if that the incident in the present case has taken place late in the night, and the information could not reach the Police Station, due to lack of communication. Within 15 minutes, the Police received the information, and the first thing the Police ought to have done was, to receive a written complaint, or to record the statement of the

Page 48 of 61 [s 154] Information in cognizable cases.— kin of the deceased. PW-11, the S.I. of Police, who registered the FIR failed to explain the delay in this regard. In his cross-examination, he admitted that he did not verify as to who gave the information on telephone, and as to why he did not record the statement, soon after his arrival. A clear suggestion was made to him to the effect that, initially he received a complaint, at the first instance, and by suppressing the same, be brought Ex. P-1. into existence [Kana Ramkrishna Reddy v State of AP, 2008 Cr LJ 2918 (2921) (AP) : 2008 (2) Andh LT (Cri) 4 : 2008 (1) Andh LD (Cr) 677].

In the instant case, the deceased went with the accused on 16 April 1987 and thereafter he did not return home. The FIR was lodged on 18 April 1987 at about 11:30 whereas the missing report should have been lodged earlier. The explanation for delay was submitted that there was some dispute with regard to the jurisdiction where the crime was committed. The explanation was not satisfactory conviction of the accused for offence under section 302, Indian Penal Code, 1860 [Gopal Singh v State of Uttranchal, 2007 Cr LJ 1972 (1978) (Uttra-DB)].

Where eye-witnesses are reliable and trustworthy, mere delay in filing the FIR would be no ground to discard the entire prosecution case [Ramden v State of Rajasthan, 2003 Cr LJ 1680 (Raj) : 2003 (1) WLC 34 ; State of Karnataka v Bhaskar Kushab, AIR 2004 SC 4333 : 2004 SCC (Cri) 1963 : 2004 Cr LJ 4229 (p 4231) (SC) : 2004 (3) Crimes 390 ].

There was delay of 19 days in lodging FIR as relatives of victim were ignorant of the incident. They rushed to hospital only when they were informed, met the victim and lodged the FIR. Delay was held to be immaterial. In dowry death case police registered FIR only after receipt of chemical examination report of Viscera. Father of deceased demanded dead body by giving an application in which he did not mention of demand of dowry. It was held that prosecution case could not be thrown away [Kulwant Singh v State, 2007 Cr LJ 3695 (P&H)].

There was delay in filing of FIR in matter of rape of minor girl. The occurrence had taken place in the last week of July but FIR was lodged on 6th August only when wife of accused had noticed blood stains in the garment of the victim and brought it to the notice of her mother who after consulting the village Headman went to police station to lodge a report. Hence prosehecution case could not be rejected solely on ground of delay [Pradeep Kumar Deb alias Uttam Deb v State, 2007 Cr LJ 4407 (Gau)]. Accused gave fatal blows on mother in law due to quarrel between them and wife of accused with one more lady was present on spot at that time. Frightened ladies went to father’s place to inform the incident. Since the father came late at night the FIR was lodged next day without explaining the delay. It was held that there was no unexplained delay in lodging the FIR [Gurdev Raj v State of Punjab, 2008 Cr LJ 382 (SC) : 2007 (4) Crimes 198 : 2007 AIR SCW 6489].

In a case of abetment of suicide there was delay in filing FIR—Deceased was newly married girl—Information of incident was given to father of deceased in the evening— Father with his family rushed to hospital where the deceased was taken. He stayed throughout the night and also on the next day till the body of the deceased was handed over. It was held that evidence of father could not be doubted on account of delay in filing FIR [Gurbachan Singh v Satpal Singh, AIR 1990 SC 209 : 1990 Cr LJ 562 : (1990) 1 SCC 445 : 1989 (3) Crimes 526 ].

The explanation given by the victim girls on the delay in lodging the FIR was not found satisfactory because the statement made by the victims and their parents were found totally contradictory. The victim girls stated in their evidence that they could not know about the identity of the accused persons, whereas the prosecution witness categorically stated in their evidence that he could not identify the accused persons due to darkness at the time when he visited the place of occurrence and that he had no occasion to meet any of the informant before the lodging the FIR. It was held that the explanation offered by the victims for delay in lodging the FIR was unacceptable [Luska Rime v State of Arunachal, 2009 Cr LJ 3100 (3105) (Gau)].

Delay in filing FIR relating to rape was caused because, after hearing about the incident the parents as well as the other members of the prosecutrix’s family were involved in a serious thought as to whether the matter should be reported to the police or not, looking to the future of the girl and the honour of the family. Secondly,

Page 49 of 61 [s 154] Information in cognizable cases.— the father of the prosecutrix was engaged in obtaining medical certificate. Delay in filing FIR was held to be explained satisfactorily [Jito v State of HP, 1990 Cr LJ 1434 (HP) per Bhawani Singh J] 1989 (2) Sim LC 269.

Wife and two sons were the only relatives of the deceased—Wife was also injured and was not able to speak clearly—Relatives reaching the scene. Instead of informing the police they informed the informant—No adverse inference can be drawn under these circumstances regarding alleged delay in lodging the FIR [Kunjan Nadar Radhakrishnan v State, 1990 Cr LJ NOC 6 : 1989 (1) Ker LT 806 : ILR (1989) 2 Ker 457 : 1989 (1) Ker LJ 482 (Ker-DB); Explanation for delay depends on the circumstances of the case [Erram v State of AP, AIR 1991 SC 1672 : 1991 Cr LJ 2189 : (1991) 3 SCC 206 (SC)].

Delay if explained satisfactorily will not affect the conviction [Zahoor v State of UP, AIR 1991 SC 40 : 1991 Cr LJ 56 : 1991 Supp (1) SCC 372 : 1990 (3) Crimes 556 (SC); Dildar Singh v State of Punjab, 2006 Cr LJ 3914 (SC) : 2006 (3) Crimes 293 : AIR 2006 SC 3084 (In this case the FIR was lodged three months after the incident because the victim did not like to give publicity to the traumatic experience she had undergone)].

FIR filed immediately after occurrence, rules out any possibility or deliberation to falsely implicate any person [Krishnan v State, AIR 2003 SC 2978 : 2003 Cr LJ 3705 : (2003) 7 SCC 56 : 2003 (3) Crimes 197 (SC); State of UP v Ram Sewak, 2003 Cr LJ 4926 (4930) : 2003 SCC (Cri) 459 ].

Mere delay in lodging the FIR is not fatal. The effect of delay in the light of the plausibility of the examination forthcoming must fall for consideration of all the facts and circumstances of a given case [Apren Joseph v State of Kerala, A 1973 SC 1 : (1973) 3 SCC 114 : 1973 Cr LJ 185 (SC)]. Whether the delay is so long as to throw a cloud of suspicion on the seeds of the prosecution case must depend upon a variety of factors. Even a long delay can be condoned if the witnesses have no motive for implicating the accused. On the other hand, prompt filing of report is not an unmistakable guarantee of the truthfulness of the version of the prosecution [Ram Jag v State of UP, AIR 1974 SC 606 : 1974 Cr LJ 479 : (1974) 4 SCC 201 ]. Delay in lodging FIR should be satisfactorily explained [Thulia Kali v State of TN, AIR 1973 SC 501 : (1972) 3 SCC 393 : 1972 Cr LJ 1296 (SC)]. In Rammurti, AIR 1976 SC 1454 it was held that explanation for delay found not very satisfactory by itself was not a ground for disbelieving the prosecution evidence [Rammurti, AIR 1976 SC 1454 ]. Inordinate delay in registration of FIR renders the prosecution story suspicious [Ganesh Bhavan Patel v State of Maharashtra, AIR 1979 SC 135 : 1979 Cr LJ 51 : (1978) 4 SCC 371 (SC)]. The FIR found to have been written after inquest report prepared by ASI lost its authenticity [Balaka Singh v State of Punjab, AIR 1975 SC 1962 : (1975) 4 SCC 511 : 1975 Cr LJ 1734 ]. If an inquest report under section 174 is unreasonably delayed, doubt arises about the genuineness of the contents and the time of recording of FIR [Maharbir Singh v State, 1979 Cr LJ 1159 (D)]. An FIR lodged within six and half hours after the incident by covering a distance of twelve miles is prompt [Dalip, A 1953 SC 364 : 1954 SCR 145 : 1953 Cr LJ 1465 ]. Delay of 12 hours in filing an FIR though an important circumstance, is of no consequence when reasonably explained [Lalai v State of UP, A 1975 SC 2118 : (1975) 3 SCC 273 : 1974 SCC (Cri) 881 ]. The FIR of dacoity occurring at 1 a.m., lodged the next day at 10 a.m. at police station 6 miles away was of no consequence [Saktu v State of UP, AIR 1973 SC 760 : (1973) 1 SCC 202 : 1973 Cr LJ 599 ]. Delay in filing FIR due to its being lodged at wrong police station within two and half hours of the incident is of no consequence [Atmaduddin, AIR 1974 SC 1901 : 1974 Cr LJ 1300 : (1974) 4 SCC 35 ].

In view of the series of clashes which took place on that day, it cannot be held that there was undue and unexplained delay in lodging the FIR [Saidu Mohammed v State of Kerala, 2006 Cr LJ 413 (428) (Ker) : 2006 (2) All CrR 584].

Delay in lodging the First Information Report cannot be used as a ritualistic formula for discarding prosecution case and doubting its authenticity. It only puts the Court on guard to search for and consider if any explanation has been offered for the delay. Once it is offered, the Court is to only see whether it is satisfactory or not. In a case if the prosecution fails to satisfactorily explain the delay and there is possibility of embellishment or exaggeration in the prosecution version on account of such delay, it is a relevant factor. On the other hand satisfactory explanation of the delay is weighty enough to reject the plea of false implication or vulnerability of prosecution case. As the factual scenario shows, the victim was totally unaware of the catastrophe which had

Page 50 of 61 [s 154] Information in cognizable cases.— befallen to her. That being so, the mere delay in lodging of the First Information Report does not in any way render prosecution version brittle [State of HP v Shree Kant Shekari, AIR 2004 SC 4404 : 2004 Cr LJ 4232 : (2004) 8 SCC 153 : 2004 (4) Crimes 32 ; See also Mallikarjun Nigappa Ragati v State of Karnataka.

The delay in filing an FIR by itself cannot be ground to doubt the prosecution case and discard it. The delay in lodging the FIR would put the Court on its guard to search if any plausible explanation has been offered and if offered whether it is satisfactory. Sahebrao v State of Maharashtra, 2006 Cr LJ 2881 (2883) (SC) : AIR 2006 SC 2002 : 2006 (2) Crimes 195 : (2006) 3 SCC (Cri) 408 ; Nagraj v State, 2006 Cr LJ 3724 (Mad).

When on a charge of outraging modesty of the woman who had contacted with the accused for digging well, the FIR was filed after 3 weeks of the incident, the reason for delay due to apprehension that the accused may not complete work is flimsy and not acceptable. Uttamlal D. Yerne v State of Maharashtra, 2006 Cr LJ (NOC) 353 (Bom) : 2006 (4) AIR Bom R 20].

In a case 25 logs of wood were recovered by forest guards from tractor-trolley of the accused and the accused was arrested on the spot and brought to the Forest Officer and the FIR was lodged. The incident took place in between the night of 5/6- July 1979. The report of the incident was lodged on the next day at about 8.30 p.m. The Forest Department is a Government Department and has the power to take cognizance of the offence and send it to police. After taking the decision the FIR was lodged. The delay in lodging the FIR was satisfactorily explained [Arbinder Singh v State of Uttranchal, 2006 Cr LJ 1021 (1023) (Uttra) : (2006) 3 Crimes 98 ].

Law has not fixed any time limit for lodging FIR and, therefore, the entire prosecution case should not be thrown overboard merely on the ground of delayed FIR [Gurudev Singh v State of Rajasthan, 2003 Cr LJ 552 : 2002 (1) Raj LR 724 : 2003 (1) Raj LW 146 (Raj)].

Delay in lodging the FIR in a rape case is not fatal to prosecution if it is properly explained [Bherulal v State of Rajasthan, 2004 Cr LJ 1677 : 2004 (1) Raj LR 177 : 2004 (1) Raj LW 602 : 2004 (2) Rec Cr R 231 (Raj)].

Where the delay in filing the FIR in a rape case was explained satisfactorily then conviction could be sustained. [Satpal alias Satnamsingh v State of Rajasthan, 2001 Cr LJ 564 : 2000 (3) Raj LR 377 : 2000 (2) Raj Cr C 1110 (Raj)].

Unexplained delay in filing the FIR creates doubt about the involvement of other accused persons [Bijoy Singh v State of Bihar, 2002 Cr LJ 2623 (2628) (SC) : AIR 2002 SC 1949 : 2002 (2) Crimes 437 : (2002) 9 SCC 147 ]. Delay in every case cannot be a ground to arouse suspicion. It can only be so when the delay is unexplained [Vidyadharan v State of Kerala, AIR 2004 SC 536 : 2004 Cr LJ 605 (607) : 2003 (4) Crimes 497 : (2004) 1 SCC 215 ].

In the instant case the statement of the Investigating officer and Naib-Tehsildar who was called for the purpose of recording the statement of deceased showed that the deceased was not making the statement in spite of repeated asking. In such a situation, the FIR, could not have been recorded, when there was nobody to tell how the incident took place. When father of the deceased came back from his village he told the entire incident to the Investigating Officer and only then, on the basis of his statement, the FIR was recorded. It was held that the FIR could not be said to be delayed in the facts of the case [Dalbir Singh v State of Haryana, 2003 Cr LJ 1878 : 2003 (2) All CrLR 301 : 2003 (1) Rec Cr R 727 (P&H)].

In abduction cases, it is quite natural for the complainant had to go out in search of the victim, and, therefore delay in lodging of FIR stands explained [Badshah v State of UP, 2005 Cr LJ 346 (351) (All) : 2004 All LJ 3869 : (2004) 50 All CrC 315].

Page 51 of 61 [s 154] Information in cognizable cases.— The complainant, a probationer in the Customs Department, alleged that she was molested by a senior official. She did not lodge the complaint immediately after the incident as she wanted to consult her husband as to what she should do must be accepted as true, and in fact, her husband did come down to Bombay immediately the next morning. Immediately the next morning on the arrival of complainant’s husband, he was contacted and apprised of the incident, other higher-ups in the Department were contacted and legal opinion obtained from a senior criminal lawyer and lodged the complaint thereafter. The conduct of the complainant in the circumstances was perfectly natural and the circumstances per se was sufficient explanation for the delay in filing the complaint. The so-called delay in filing the complaint cannot, therefore be a ground for rejecting the testimony of the complainant [State of Maharashtra v Satyendra Dayal Kare, 2004 Cr LJ 3399 : 2004 All MR (Cri) 2339 (Bom)].

In the instant case murder took place during sunset and the FIR was lodged next morning. In occurrence of incident witnesses also sustained injuries. It was held that delay of few hours was not sufficient to discard the FIR and prosecution story [Jagannath v State of UP, 2003 Cr LJ 2702 : 2003 All LJ 1270 : 2003 (46) All Cr C 528 (All)].

Where the occurrence had taken place at about sun-set, the distance of police station was 6 miles, transport was not available due to Holi Festival, and the FIR was lodged at 10:30 p.m., the delay was held to have been duly explained [Radha Mohan Singh v State, 2005 Cr LJ 167 (174) (All)] : 2004 All LJ 3670.

Where in the occurrence a number of persons received injuries and a large number of persons participated, the injured had been chased by the accused, witnesses had run away for shelter and safety and time was taken in assembling of all, delay of 6 hours in lodging FIR was held explained [Gajula Venkateshwara Rao v State of AP, AIR 2002 SC 2775 : 2002 Cr LJ 3565 (p 3567) (SC) : AIR 2002 SC 2775 : 2002 (3) Crimes 126 : (2002) 6 SCC 487 ].

Where the medical officer attending the deceased in the hospital sent information to the police station regarding the incident. SHO came to the hospital, but the deceased was not in a condition to make any statement, the Police did not register the case for two days, the delay was not held fatal [State of Rajasthan v Maharaj Singh, AIR 2004 SC 4205 : 2005 SCC (Cri) 90 : 2004 Cr LJ 4195 (p 4196) SC : 2004 (3) Crimes 395 ].

The deceased was attacked by the accused with dangerous weapons. Relatives of the deceased were in state of shock and were mainly concerned with treatment of deceased. Seven hours delay in lodging FIR till arrival of police at hospital was held satisfactorily explained [Ramji Sankar v State of WB, 2004 Cr LJ 4398 : 2004 (3) Cal HN 647 (Cal)].

Where informant took time in searching the dead body of the deceased and the police station was situated at a distance of five kms, the FIR lodged after 4 hours of the incident was held not delayed FIR [Gaya Yadav v State of Bihar, AIR 2003 SC 1759 : 2003 Cr LJ 1564 (p 1568) (SC) : 2003 (2) Crimes 257 : (2003) 9 SCC 122 ]. [s 154.49] Delay in recording of FIR.— According to informant a rustic villager she had been turned away from the police station on the promise that no dead body was recovered or there being no other evidence relating to death of the deceased. No exception to such a statement can be taken. The Courts cannot be oblivious of such conduct on the part of police officers [Ponnuswamy v State of TN, 2008 Cr LJ 2563 (p 2566) (SC) : AIR 2008 SC 2110 : (2008) 5 SCC 587 : (2008) 2 SCC (Cri) 656 ].

Time of three hours, between the occurrence and recording of statement in a given case, is sufficient for deliberations and discussions, particularly when the occurrence has the traces of faction rivalry. It is not as if that the incident in the present case has taken place late in the night, and the information could not reach the Police Station, due to lack of communication. Within 15 minutes, the police received the information, and the first thing the police ought to have done was to receive a written complaint, or to record the statement of the kin

Page 52 of 61 [s 154] Information in cognizable cases.— of the deceased. PW 11, the S.I. of Police, who registered the first information report failed to explain the delay in this regard. In his cross-examination, he admitted that he did not verify as to who gave the information on telephone, and as to why he did not record the statement, soon after his arrival. A clear suggestion was made to him to the effect that initially he received a complaint, at the first instance, and by suppressing the same, he brought Ex. P-1, into existence [Koona Ramkrishna Reddy v State of AP, 2008 Cr LJ 2918 (p 2921) (AP) : 2008 (2) Andh LT (Cri) 4 : 2008 (1) Andh LD (Cr) 677].

In the instant case, the information was received about the incident of burning at the outpost located in the hospital itself on 9 April1995. On 10 April 1995, a statement was taken from the deceased by the Police Officer himself. Consequently, the formal FIR came to be recorded on 12 April 1995 although the incident was reported on 9 April 1995 on the basis of which the police started the investigation by sending a requisition to the Taluka Executive Magistrate which was followed up by recording of the statement of deceased by the police. Delay, therefore in recording the FIR stood explained [Kamalavva v State of Karnataka, 2009 Cr LJ 4408 (p 4411) (SC) : 2009 (10) Scale 468 ]. [s 154.50] Omission in FIR.— Omission in the FIR has to be considered alongwith other evidence to determine whether the fact so omitted never happened at all [Rattan Singh v State of HP, AIR 1997 SC 768 : (1997) 4 SCC 161 : 1997 Cr LJ 833 : 1996 (4) Crimes 282 (SC); Anil Kumar v State of UP, AIR 2003 SC 1596 : 2003 AIR SCW 977 : 2003 Cr LJ 1524 : 2003 (3) SCC 569 : 2003 (1) Crimes 283 (SC)]. Merely because names of some of the accused persons are not mentioned in the FIR or the accused mentioned in the FIR have not been identified during trial, the evidence of the complainant cannot be discarded [State of Maharashtra v Lahu Laxman Pabale, 2003 Cr LJ 1174 (Bom) : 2003 Bom CR (Cr) 400 ; Venkateshwarlu v State of AP, AIR 2003 SC 574 : 2003 Cr LJ 837 (840) (SC) : 2003 (2) Crimes 506 : 2003 SCC (Cri) 1414 ; State of UP v Naresh, 2011 Cr LJ 2162 (SC)].

Non-mentioning of motive in the FIR cannot be regarded as an omission to state important and material fact. Where the FIR was filed by a rustic man, non-mentioning of motive in the FIR cannot be attached much importance. [State of UP v Krishna Master, 2010 Cr LJ 3889 (p 3903) : AIR 2010 SC 3071 : (2010) 12 SCC 324 ].

Where the name of the accused who was none else than the husband of the victim was disclosed by the victim to the Police Inspector who immediately deputed Head Constable to search the accused, omission to record the name of the accused was due to the dereliction of the Police Inspector and, therefore, no advantage could be taken by the accused [Syed Shafiq Ahmad v State of Maharashtra, 2002 Cr LJ 1403 (1406) (Bom) : 2001 (3) Mah LR 726].

Where the FIR had been lodged by a person, who was not eye-witness, on the basis of information given by an eye-witness and did not know the name of the accused, the omission to mention the name of the accused in the FIR was not fatal [Anil Kumar v State of UP, AIR 2003 SC 1596 : 2003 Cr LJ 1524 (1525) (SC) : 2003 (1) Crimes 283 : (2003) 3 SCC 569 ].

In a case the informant failed to name a particular accused in the FIR, and the said accused was named at the earliest opportunity, when the statements were recorded, it would not tilt the balance in favour of the accused. [Ranjit Singh v State of Madhya Pradesh, 2011 Cr LJ 283 (p 287) : (2011) 4 SCC 336 : AIR 2011 SC 255 ].

In robbery and dacoity cases, omission of names of accused is not of much significance. The case can be proved by recovery of articles which are subject-matter of the offence and identification of the culprits [Lal Singh v State of UP, AIR 2004 SC 299 : 2004 Cr LJ 378 : 2003 (4) Crimes 482 : 2004 Mad LJ (Cri) 373].

In information relating to dacoity with murder names of accused persons were not given. It was held immaterial as informant was shocked by violent murder of their dear relatives as well as reign of terror let loose by the miscreants. Hence omission to mention specific details in General Diary entry could not lead to conclusion of

Page 53 of 61 [s 154] Information in cognizable cases.— disbelieving eye witnesses [Naresh Das v State, 2007 Cr LJ 2269 (pp 2274, 2275) (Gau) : 2007 (5) AIR Bom R 764 (NOC)].

Court also laid down that First Information Report/General Diary entry can be used only to discredit informant and not other witnesses [Ibid].

Movement of accused persons had continued for a long time and witnesses had sufficient time and opportunity to see and identify them. It was held that genuineness of first information report could not be doubted because of the fact that names of accused with their parentage was correctly mentioned [Kumar Singh v State, 2007 Cr LJ 1349 (MP) : 2007 CrLR (SC & MP) 304].

Once a first information report is found to be truthful only because the names of some accused persons have been mentioned against whom the prosecution was not able to establish its case, the entire prosecution case would not be thrown away only on the basis thereof [Animireddy Venkataramana v Public Prosecutor, 2008 Cr LJ 2038 (p 2042) (SC) : AIR 2008 SC 1603 : (2008) 5 SCC 368 : 2008 (2) Crimes 63 : (2008) 2 SCC (Cri) 600 ].

Mere omission of the names of prosecution witnesses is not fatal [Bhagwan Singh v State of MP, AIR 2002 SC 1621 : 2002 Cr LJ 2024 (p 2029) (SC) : 2002 (2) Crimes 42 : (2002) 4 SCC 85 ; State of MP v Dharkole, 2005 SCC (Cri) 225 : AIR 2005 SC 44 : 2005 Cr LJ 108 : 2004 (4) Crimes 270 ]. Mere omission in an FIR should by itself never be held as amounting to contradiction for the purpose of section 145 of the Indian Evidence Act [Gouranga Das v State of Tripura, 2010 Cr LJ 2125 (Gau)].

An eye-witness to a ghastly scene of murder may be under several mental strain and, therefore, he is not expected to explain exhaustively the incident in the FIR [Varadhan v State, 2005 Cr LJ 618 (622) (Mad) : 2004 Mad LJ (Cr) 1018].

Omission to mention names of eye-witnesses in FIR by the informant was held not fatal, because the imformnt the father of deceased, being scared by incident was not expected to give meticulous and precise account of details of incident [Ashok Kumar v State, 2008 Cr LJ (NOC) 882 (Uttara)].

It is not necessary that accused persons must be named in the FIR [State of Maharashtra v Mohd Sajid Hussain, 2007 (4) Crimes 206 : (2008) 1 SCC (Cri) 176 : (2008) 1 SCC 219 ].

Where the accused though known to the accused is not named in FIR, he would be entitled to benefit of doubt [Mallanna v State of Karnataka, (2007) 3 SCC (Cri) 731 : (2007) 8 SCC 523 : 2007 AIR SCW 5917].

While considering the effect of some omissions in the first information report on the part of informant, a Court cannot fail to take into consideration the probable physical and mental condition of first informant [Animireddy Venkataramana v Public Prosecutor, 2008 Cr LJ 2038 (SC) : AIR 2008 SC 1603 : (2008) 5 SCC 368 : (2008) 2 SCC (Cri) 600 ; Khalil Khan Bismilla Khan v State of Maharashtra, 2008 Cr LJ (NOC) 580 (Bom) : 2008 (2) AIR Bom R 494 : 2008 (2) Bom CR (Cri) 652 : 2008 All MR (Cri) 614].

First information report need not contain each and every minute of incident that occurred either prior to, or subsequent to the offence. An information is sufficient to authorise I.O. to unearth all connected matter, prior to, subsequent to filing of case [Ramakant Singh v State, 2006 Cr LJ 4752 (Pat) : 2006 (3) Pat LJR 610 : 2006 (4) East Cri C 580].

The co-accused was not named in first information report but injured mother of deceased had named him in her

Page 54 of 61 [s 154] Information in cognizable cases.— statement recorded soon after the incident. She also named co-accused in the Court. It was held that absence of name of accused in first information report was not fatal [Rotash v State of Rajasthan, 2007 Cr LJ 758 (SC) : 2007 (1) Crimes 236 : (2007) 2 SCC (Cri) 382 : 2007 AIR SCW 44].

Even if anonymous complaint alleging corrupt practices against special police force is received that can properly be investigated [Shashikant v CBI, 2007 Cr LJ 995 (SC) : AIR 2007 SC 351 : 2006 (4) Crimes 318 : (2007) 7 SCC 630 ].

Where there was no evidence of any discussion or talk between PW-1 and PW-2, before FIR was filed by PW1, omission in the FIR of the account of incident as deposed by PW-2 was held not fatal [State of Rajashtan v Hanif Khan, (2009) 3 SCC 549 (p 552) : (2009) 2 SCC (Cri) 161 : 2009 (3) JT 449 ].

Where it was mentioned in the FIR that an official of Tahsil was also present on the spot, it was held that it could not be doubted merely because his name was not mentioned in the FIR [Ishwari Ram v State of UP, 2008 Cr LJ 4163 (p 4167) (Uttra-DB)].

The statement of PW-1 before the Court that the accused were armed with dao, lathi etc. while they dragged his father and because of their violent act with dao, lathi etc. he could not proceed further to rescue his father is seriously doubtful, inasmuch as, the statement of PW-1 was contrary in FIR [Parimal Gowala v State of Tripura, 2007 Cr LJ 2394 (p 2397) (Gau-DB)]. [s 154.51] Delay in despatch of FIR.— Delay in despatch of FIR to local Magistrate by itself is not a circumstances which can throw out prosecution’s case in its entirety. [Vishnu v State (NCT of Delhi), 2001 Cr LJ 4006 : (2001) 92 DLT 807 (Del); Ediga Jagannatha Goud v State of AP, 2004 Cr LJ 4052 (p 4057) (AP) : 2004 (2) Andh LT (Cr) 603 ].

It was revealed from the FIR that the report was received by the Magistrate two days after recording the FIR. The signature of the Magistrate was on the report. The evidence of PWs-3 and 4 was cogent and credible. In this view of the matter, the mere fact 11.30 hours’ delay after incident was held to have no relevance or significance. [Sitaram Marandi v State of Jharkhand, 2011 Cr LJ 147 (p 156) (Jhar)].

In a case the FIR was registered at police station at 9.35 a.m. It reached the Magistrate at a distance of 10 Kms from police station at 3.00 p.m. The delay was held of no consequence [State of Punjab v Karnail Singh, AIR 2003 SC 3609 : 2003 Cr LJ 3892 : 2003 (3) Crimes 292 : 2003 AIR SCW 4065 (SC)].

The FIR was sent to the Court nearly 11 days after the occurrence. There was no explanation for such inordinate and unusual delay in sending the FIR to the Court which is a circumstance which touches the credibility of the prosecution case. [Mobarak SK v State of WB, 2011 Cr LJ 1677 (p 1681) (Cal)].

But coupled with other facts and material showing that FIR was manipulated, delay of 3 days in receiving FIR by Magistrate was held to be fatal [State of Gujarat v Rajubhai Dhamirbhai Banya, 2004 Cr LJ 771 : 2004 (2) Cur Cr R 235 : 2004 (2) Guj CD Guj 1431 : 2004 (1) Guj LH 262 : 2004 (1) Guj LR 404 : 2004 (15) Ind LD 450 (Guj)].

In the instant case so far as the delay in despatch of the FIR is concerned, it was noted by the High Court that the informant’s Fardbayan was recorded at 10.00 a.m. on 22 January1999. The inquest report was prepared on 22 January 1999 at 19.25 hours. The inquest report was prepared by Executive Magistrate and the case number is also mentioned. That being so, plea that the Fardbayan being anti-timed has not been established. Post-mortem was conducted on 22 January 1999 at 22.00 hours. Above being the position, there can be no grain of doubt that the Fardbayan was recorded on the date of occurrence and filed at the indicated time and the case has been instituted on the basis of the said Fardbayan. Finding recorded by the High Court that

Page 55 of 61 [s 154] Information in cognizable cases.— Fardbayan was not ante-timed is amply supported by evidence on record and no adverse view as claimed by the accused can be taken. [Anil Sharma v State of Jharkhand, AIR 2004 SC 2294 : 2004 Cr LJ 2527 : 2004 (2) Crimes 379 : 2004 AIR SCW 2857 (SC)].

Fardbeyan of informant taken within one and a half hours of occurrence with names of assailants registered as an FIR and it cannot be said that there was suppression of first FIR on basis of some remour about some fight with no details of assailants or other details causing prejudice to defence [Ravishanker Manjhri v State of Bihar (Jharkhand), 2007 Cr LJ (NOC) 151 : 2007 (1) AIR Jhar R 416 (Jharkhand)].

In a case, FIR was lodged at 7.30 p.m. but its copy was not furnished in the night. It was held that as the police station was situated in remote corner of District and conveyance at night time was not available, delay in sending copy of FIR to Magistrate stood satisfactorily explained [MG Ponnappa v State of Karnataka, AIR 2003 Kant HCR 754 : 2003 Cr LJ 1728 : 2003 (2) Kant LJ 408 (Kant); See also State of Gujarat v Miyama Abraham Mamad, 2004 Cr LJ 3471 (Guj)].

Where the FIR was received in the Court after 5 days of the occurrence and the delay was not explained — The FIR was held anti-timed [Nand Kishore Singh v State of Jharkhand, 2005 Cr LJ 389 (p 398) (Jhar) : 2004 (4) JLJR 686 : 2005 (1) DMC 666 ].

As is evident from the FIR itself, the same was registered on 15 June 1991 and dispatched from the police station on 16 June 1991. Therefore, the contention to the effect that there was no explanation by I.O. as to why records were sent to the Court on 19 June1991 and that the FIR must have been anti-dated, was not acceptable [Krupsindhu Das v State of Orissa, 2008 Cr LJ 2788 (p 2791) (Ori) : 2008 (39) OCR 680 ].

Where constable first went to residence of S.P. and then to Magistrate, such delay in FIR reaching Magistrate is not serious infirmity [State v Malikarjune, 2007 Cr LJ 910 (Kant) : 2007 (1) AIR Kar R 106].

Trial Court should not adopt a tenuous approach regarding the delay in lodging the FIR. Even if the residence of the Chief Judicial Magistrate was close-by, the fact that the FIR was lodged with him within four hours is not ignorable. No doubt the ideal situation is that FIR is lodged with utmost speed and dispatch but if the ideal is not adhered to in any case, the corollary is not castigation of the evidence of the maker of the FIR. In the present set up no police station can be expected to have only one case to look into. A little delay in lodging the FIR with the Magistrate should not be viewed from an unrealistic angle [Harpal Singh v Devinder Singh, AIR 1997 SC 2914 : 1997 Cr LJ 3561 : 1997 (6) SCC 660 : 1997 (3) Crimes 23 ]. [s 154.52] FIR if fabricated or ante-timed.— When actual scribe has not been examined, it creates doubt about the date and time of lodging the report. In the instant case the whole FIR was written by some unknown police officer bearing signature of Station House Officer of Police Station. If the FIR was written by some other Police Officer, the same police officer could have signed on the said FIR or at least FIR bear notes that the contents of the FIR was written by such and such officer as per the dictation and direction by the Station House Officer. The informant was very emphatic and clear that while lodging FIR, Station House Officer was not present at Police Station. The Court held that the FIR was not genuine piece of document brought into existence is ante-date and time after due consultation [Gabbu B Lodhi v State of MP, 2004 Cr LJ 2001 : 2003 (4) Crimes 348 : 2004 (1) Car Cri R 264 : 2003 (3) MPLJ 349 : 2004 (1) Rec Cr R 859 (MP)]. The Supreme Court on the case of Marudanal Angusti v State of Kerala, AIR 1980 SC 638 : 1980 Cr LJ 446 : 1980 (4) SCC 425 : 1980 SCC (Cri) 985 held : “The High Court seems to have overlooked the fact that the entire fabric of the prosecution case would collapse of the FIR is held to be fabricated or brought into existence long after the occurrence and any number of witnesses could be added without there being anything to check the authenticity of their evidence” [On this principle also see Sevi v State of TN, 1981 Cr LJ 736 : AIR 1981 SC 1230 : 1981 SCC (Cri) 679 ; Mohar Singh v State of Rajasthan, AIR 1998 SC 2912 ; Bandi Malliah v State of AP, AIR 1980 SC 1160 : 1980 Cr LJ 914 : 1980 (3) SCC 136 : 1980 SCC (Cri) 672 (SC)].

Page 56 of 61 [s 154] Information in cognizable cases.— In the instant case incident took place at 3.30 p.m. while the report was lodged on the same day at 6.10 p.m. at the police station. Besides, dying declaration of the deceased was recorded at 6.45 p.m. Time noted at the foot of the dying declaration also was 6.45 pm. The injured was medically examined at 8.30 p.m. on the same day. It was held that FIR could not be said to be ante-timed as alleged [Ompal Singh v State, 2003 Cr LJ 1829 : 2003 All LJ 153 : 2003 (46) All Cr C 193 : 2003 (1) All Cr R 112 (All)].

Where there was no evidence to show that the place of occurrence was at a considerable distance from police station, udicial notice be taken of the fact that in a small city the distance of Kotwali could be covered within 10 or 15 minutes. It was held that the plea that FIR was ante-time could not be accepted [Radha Mohan Singh v State, 2005 Cr LJ 167 (All)].

Where no suggestion about tampering in FIR was given to the police official registering FIR nor such plea was raised in the Trial Court such allegation raised in appeal was held liable to be rejected [State (NCT of Delhi) v Navjot Sandhu, 2005 Cr LJ 3950 (3976) (SC) : AIR 2005 SC 3820 : 2005 (3) Crimes 87 : 2005 SCC (Cr) 1715].

Mere omission to mention the crime in the FIR or the name of the complainant in the FIR would not lead to the inference that the FIR is ante-timed [Rajesh Chandulal Gandhi v State of Gujarat, 2002 Cr LJ 1821 (1827) (SC) : AIR 2002 SC 1412 : 2002 (2) Crimes 1 : (2002) 4 SCC 426 ].

Omission to mention the crime number, names of accused persons and penal provisions under which the offences had been committed is not fatal to the prosecution. Such omissions do not lead to the inference that the FIR is ante-timed. Evidence of eye-witnesses cannot be discarded if their names do not figure in the inquest report because inquest report is not substantive evidence [Brahm Swaroop v State of UP, AIR 2011 SC 280 : (2011) 6 SCC 288 : (2011) 2 SCC (Cri) 923 ].

The trial Court reasoned that the FIR was ante timed because it was shown to have been recorded at 8.55 P.M. on the date of occurrence. According to PW-8, the I.O., he reached the village on the same day, late in the evening, at 10.30 P.M. and yet he prepared the site plan only in the morning of June 1, 1987. It was, thus, the delay in preparing the site plan that led the trial Court to assume that the FIR would not have been recorded the previous evening at 8.55 P.M. and it bore a wrong time of its recording. The High Court rightly observed that the reason given by the trial Court to condemn the FIR as ante timed was wholly fanciful and unreasonable. There may be any number of reasons for the I.O. not to prepare the site plan of the place of occurrence in the night but wait till the morning and, to hold that the FIR was ante timed, on that basis alone was highly unreasonable. [Lallan Chaubey v State of UP, 2011 Cr LJ 280 (p 282) (SC)].

The mere fact the constable consulted the Superior officials before formally recording the FIR does not mean that the FIR was fabricated, changes were made and there were interpolations. [Vijaya Kumar v State, 2005 Cr LJ 3085 (3090) (SC) : 2005 (3) Crimes 55 : (2005) 10 SCC 737 : 2005 AIR SCW 3067].

In the instant case it was alleged that the time of incident had been changed by prosecution to suit their purpose. It was submitted that the semi-digested and digested food was found in the stomach of the deceased which indicated that the food was taken about 3-4 hours prior to the time of the incident and, therefore, the incident must have happened at about 11 pm in the night and not at 6.15 pm as alleged by the prosecution. The submission was held not substantiated [Ramvir v State of UP, 2009 Cr LJ 4155 (4156) (SC) : AIR 2009 SC 3185 : 2009 (8) JT 685 ].

It is not necessary that the FIR must be in the handwriting of the informant. The circumstances were not showing that the FIR was ante-timed. Nor the timing of the FIR could be disbelieved where the police constable went to the scene of crime and seized a shirt before registration of FIR. [Himanshu Mohan Rai v State of UP, AIR 2017 SC 1425 : 2017 (4) SCC 161 ]. [s 154.53] Registration of information as second FIR.—

Page 57 of 61 [s 154] Information in cognizable cases.— Registration of the information as the second FIR in regard to the same incident is not permissible under the law and if the report under section 173(2) Code of Criminal Procedure, 1973 has been filed before the Magistrate in respect of the FIR registered earlier, it is always open for the investigating officer to make further investigation under sub-section (8) of section 173, Code of Criminal Procedure, 1973 and forwarded his report to the Magistrate concerned or if no such report has been filed and the investigation has not been concluded, the further information may be treated as part of the record for the purpose of further investigation [Bubana Nayak v State of Orissa, 2005 Cr LJ 2524 (Ori)].

First Informant Report is a report which gives first information with regard to any offence. There cannot be a second FIR with regard to the same offence because whenever any further information is received by the investigating agency, it is always in furtherance of the FIR. Thus, where the deceased received burn injuries and FIR for the offence of attempt to murder was registered, if subsequently the deceased suffered septicemia on account of those injuries and expired, it was held to be not necessary to note the same as a new FIR [Chirra Shivraj v State of AP, AIR 2011 SC 604 : (2010) 14 SCC 444 ].

The filing of second FIR for the same incident just to collect further evidence is illegal. There can be no second FIR and no fresh investigation or receipt of every subsequent information in respect of the same cognizable offence or same occurrence giving rise to one or more cognizable offence. [TT Antony v State of Kerala, 2001 Cr LJ 3329 : (2001) 6 SCC 181 ; Ramakant Singh v State of Bihar, 2006 Cr LJ 4752 (Pat) : 2006 (1) Pat LJR 42 ].

Accused alleged to have furnished wrong information as to full name and address during the course of investigation made on the first FIR. The offences committed by the accused mentioned in the second FIR were distinct offences committed by the accused appellants and the same have no connection with offences for which the first FIR was registered against them. The Apex Court while holding that the further investigation is not warranted and the registration of the second FIR is permissible said that it is a well settled principle of law that there can be no second FIR in the event of any further information being received by the investigating agency in respect of the offence or the same occurrence or incident giving rise to one or more offences for which charge-sheet has already been filed by the investigating agency. The recourse available with the investigating agency in the said situation is to conduct further investigation normally with the leave of the court as provided under sub-section (8) of section 173 of the Code of Criminal Procedure, 1973. However, the principle of law is not applicable to the fact situation in the instant case as the substance of the allegations in the said two FIRs is different. [Awadesh Kumar Jha v State of Bihar, AIR 2016 SC 373 ]. [s 154.54] Compromise.— Where the FIR was lodged under sections 420, 406, 379, Indian Penal Code, 1860 and section 23 of Hire Purchase Agreement Act and the parties entered into compromise without any threat, coercion or undue influence, the offences being compoundable with the permission of Court, compromise was allowed [Sajid Zeya Khan v State of Jharkhand, 2008 Cr LJ (NOC) 1136 (Jhar) : 2008 (2) AIR Jhar R 927 : 2008 (66) All Ind Cas 529]. [s 154.55] High Courts’ direction for registration of case.— When the complaint is not registered even where there is allegation of commission of offence, the High Court can direct the police to register the case in exercise of its inherent power under section 482, Code of Criminal Procedure, 1973 as well as a writ jurisdiction [D Prasanna v State, 2007 Cr LJ 233 (p 236) 2006 (1) Mad LJ (Cri) 593 (Mad)]. [s 154.56] Encounter of accused by police—FIR against police officials.— Registration of a case under section 302, Indian Penal Code, 1860 straight way against the police officials in encounter cases does not accord with the procedure prescribed under the Code of Criminal Procedure, 1973 [Andhra Pradesh Civil Liberties Committee v State of AP, 2008 Cr LJ 402 (421) (AP-FB) : 2007 (3) Andh LT (Cri) 192 : 2007 (2) Andh LD (Cr) 633].

In People’s Union for Civil Liberties v State of Maharashtra, the Supreme Court issued the following guidelines

Page 58 of 61 [s 154] Information in cognizable cases.— to be followed in the matters of investigating police encounters in cases of death as the standard procedure for thorough, effective and independent investigation:

(1) Whenever the police is in receipt of any intelligence or tip-off regarding criminal movements or activities pertaining to the commission of grave criminal offence, it shall be reduced into writing in some form (preferably into case diary) or in some electronic form. Such recording need not reveal details of the suspect or the location to which the party is headed. If such intelligence or tip-off is received by a higher authority, the same may be noted in some form without revealing details of the suspect or the location. (2) If pursuant to the tip-off or receipt of any intelligence, as above, encounter takes place and firearm is used by the police party and as a result of that, death occurs, an FIR to that effect shall be registered and the same shall be forwarded to the court under section 157 of the Code without any delay. While forwarding the report under section 157 of the Code, the procedure prescribed Under section 158 of the Code shall be followed. (3) An independent investigation into the incident/encounter shall be conducted by the CID or police team of another police station under the supervision of a senior officer (at least a level above the head of the police party engaged in the encounter). The team conducting inquiry/investigation shall, at a minimum, seek:

(a) To identify the victim; colour photographs of the victim should be taken; (b) To recover and preserve evidentiary material, including blood-stained earth, hair, fibers and threads, etc, related to the death; (c) To identify scene witnesses with complete names, addresses and telephone numbers and obtain their statements (including the statements of police personnel involved) concerning the death; (d) To determine the cause, manner, location (including preparation of rough sketch of topography of the scene and, if possible, photo/video of the scene and any physical evidence) and time of death as well as any pattern or practice that may have brought about the death; (e) It must be ensured that intact fingerprints of deceased are sent for chemical analysis. Any other fingerprints should be located, developed, lifted and sent for chemical analysis; (f)

Post-mortem must be conducted by two doctors in the District Hospital, one of them, as far as possible, should be In-charge/Head of the District Hospital. Post-mortem shall be video-graphed and preserved;

(g) Any evidence of weapons, such as guns, projectiles, bullets and cartridge cases, should be taken and preserved. Wherever applicable, tests for gunshot residue and trace metal detection should be performed. (h) The cause of death should be found out, whether it was natural death, accidental death, suicide or homicide.

(4) A Magisterial inquiry under section 176 of the Code must invariably be held in all cases of death which occur in the course of police firing and a report thereof must be sent to Judicial Magistrate having jurisdiction under section 190 of the Code. (5) The involvement of NHRC is not necessary unless there is serious doubt about independent and impartial investigation. However, the information of the incident without any delay must be sent to NHRC or the State Human Rights Commission, as the case may be.

Page 59 of 61 [s 154] Information in cognizable cases.— (6) The injured criminal/victim should be provided medical aid and his/her statement recorded by the Magistrate or Medical Officer with certificate of fitness. (7) It should be ensured that there is no delay in sending FIR, diary entries, panchnamas, sketch, etc, to the concerned Court. (8) After full investigation into the incident, the report should be sent to the competent court under section173 of the Code. The trial, pursuant to the chargesheet submitted by the Investigating Officer, must be concluded expeditiously. (9) In the event of death, the next of kin of the alleged criminal/victim must be informed at the earliest. (10) Six monthly statements of all cases where deaths have occurred in police firing must be sent to NHRC by DGPs. It must be ensured that the six monthly statements reach to NHRC by 15th day of January and July, respectively. The statements may be sent in the following format along with post mortem, inquest and, wherever available, the inquiry reports:

(i)

Date and place of occurrence.

(ii) Police Station, District. (iii) Circumstances leading to deaths:

(a) Self defence in encounter. (b) In the course of dispersal of unlawful assembly. (c) In the course of affecting arrest.

(iv) Brief facts of the incident. (v) Investigating Agency. (vi) Findings of the Magisterial Inquiry/Inquiry by Senior Officers:

(a) disclosing, in particular, names and designation of police officials, if found responsible for the death; and (b) whether use of force was justified and action taken was lawful.

(11) If on the conclusion of investigation the materials/evidence having come on record show that death had occurred by use of firearm amounting to offence under the Indian Penal Code, disciplinary action against such officer must be promptly initiated and he be placed under suspension. (12) As regards compensation to be granted to the dependants of the victim who suffered death in a police encounter, the scheme provided under section 357A of the Code must be applied. (13) The police officer(s) concerned must surrender his/her weapons for forensic and ballistic analysis, including any other material, as required by the investigating team, subject to the rights under Article 20 of the Constitution. (14) An intimation about the incident must also be sent to the police officer’s family and should the family need services of a lawyer/counselling, same must be offered.

Page 60 of 61 [s 154] Information in cognizable cases.— (15) No out-of-turn promotion or instant gallantry rewards shall be bestowed on the concerned officers soon after the occurrence. It must be ensured at all costs that such rewards are given/recommended only when the gallantry of the concerned officers is established beyond doubt. (16) If the family of the victim finds that the above procedure has not been followed or there exists a pattern of abuse or lack of independent investigation or impartiality by any of the functionaries as above mentioned, it may make a complaint to the Sessions Judge having territorial jurisdiction over the place of incident. Upon such complaint being made, the concerned Sessions Judge shall look into the merits of the complaint and address the grievances raised therein [People’s Union for Civil Liberties v State of Maharashtra, (2014) 10 SCC 635 : 2015 Cr LJ 610 (SC)].

The cases are registered against dead persons under section 307, Indian Penal Code, 1860 alleging that they attempted to murder the police officials during the operations. Such a concise is totally impermissible [Andhra Pradesh Civil Liberties Committee v State of AP, 2008 Cr LJ 402 (p 421) (AP-FB) : 2007 (3) Andh LT (Cri) 192 : 2007 (2) Andh LD (Cr) 633]. [s 154.57] FIR as counterblast to criminal proceedings.— The informant filed a complaint alleging therein the commission of the offences under sections 420, 494, 506 and 34 of the Indian Penal Code, 1860 as a counterblast to criminal complaint filed against him under section 138 of the Negotiable Instruments Act, 1881. FIR is liable to be quashed. [Lovely Salhotra v State of NCT of Delhi, AIR 2017 SC 2595 ]. [s 154.58] Non-Mentioning of names in FIR.— In the FIR it was clearly mentioned that there were 12 persons involved in the matter, but it contained the names of five persons only. The non-mentioning of the names of 7 accused persons in FIR was held to be inconsequential or not fatal. [Fazar Ali v State of Assam, AIR 2017 SC 2475 ].

Absence of names of accused persons in the FIR cannot be a ground to raise doubt about the prosecution case. [Mukesh v State for NCT of Delhi, AIR 2017 SC 2161 : (2017) 2 Mad LJ (Cr) 480].

The allegations in the FIR were that the accused armed with deadly weapons came together at the spot and assaulted the deceased and others. The presence of all the accused at the spot was not doubtful. The testimony of the witnesses as to manner, in which injuries were inflicted on the deceased as well as the injured, were corroborated by medical evidence as well as by the injured eye-witness. Mere non-mentioning of the two names in the FIR cannot be fatal to the case of the prosecution. [Susanta Das v State of Orissa, AIR 2016 SC 589 : 2016 (4) SCC 371 ]. [s 154.59] FIR under section 154 and section 9 of the Lokayukta Act (4 of 1984).— The Inspector of Police of the Lokayukta took note of the news item published in the newspaper, suo motu and registered the FIR after being satisfied with the material facts published in the news paper that there is a cognizable offence to be investigated by the police against the appellant. The complaint against the appellant was not lodged before Lokayukta but the same was registered suo-motu at the police station attached to the Lokayukta. The Apex Court held that the act of the police officer was not illegal at all. The registration of the FIR before Lokayukta under section 9 of the Lokayukta Act (4 of 1984) was held to be not necessary. [Yunus Zia v State of Karnatraka, AIR 2015 SC 2377 ]. [s 154.60] FIR against the Judges of Supreme Court and High Court.— The registration of FIR against the Judges of High Courts, Supreme Court and the Chief Justice of India is not permissible without requisite sanction. In case of Judges of High Court and the Judges of Supreme Court sanction should be given by the Chief Justice of India and in case of FIR against the Chief Justice of India the requisite sanction should be given by the President of India in accordance with the procedure. It was held that there could not be registration of any FIR against a High Court Judge or Chief Justice of the High Court or the Supreme Court Judge without the consultation of the Hon’ble Chief Justice of India and, in case of an allegation against Hon’ble Chief Justice of India, the decision had to be taken by the Hon’ble President, in accordance with the procedure prescribed in the said decision. [Kamini Jaiswal v UOI, AIR 2017 SC 5334 ].

Page 61 of 61 [s 154] Information in cognizable cases.—

1

Inserted by the Criminal Law (Amendment) Act, 2013 (13 of 2013), Section 13 (w.e.f. 3 February 2013).

End of Document

[s 155] Information as to non-cognizable cases and investigation of such cases.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER XII INFORMATION TO THE POLICE AND THEIR POWERS TO INVESTIGATE

The Code of Criminal Procedure, 1973 CHAPTER XII INFORMATION TO THE POLICE AND THEIR POWERS TO INVESTIGATE [s 155] Information as to non-cognizable cases and investigation of such cases.— (1) When information is given to an officer in charge of a police station of the commission within the limits of such station of a non-cognizable offence, he shall enter or cause to be entered the substance of the information in a book to be kept by such officer in such form as the State Government may prescribe in this behalf, and refer the informant to the Magistrate. (2) No police officer shall investigate a non-cognizable case without the order of a Magistrate having power to try such case or commit the case for trial. (3) Any police officer receiving such order may exercise the same powers in respect of the investigation (except the power to arrest without warrant) as an officer in charge of a police station may exercise in a cognizable case. (4) Where a case relates to two or more offences of which at least one is cognizable, the case shall be deemed to be a cognizable case, notwithstanding that the other offences are non-cognizable. [s 155.1] Changes.— Section 155 corresponds to old section 155 (CrPC, 1989) with the following changes :

(1) Sub-section (1) has been redrafted. (2) In sub-section (2) the words “of the first or second class” after “Magistrate” and “or of a Presidency Magistrate” at the end have been omitted. (3) Sub-section (4) has been added.

Material changes introduced are : (1) Under the old sub-section (1) the officer in charge of a police station had himself to enter the substance of the information in a book and now he may also cause it to be entered in the book.

Page 2 of 6 [s 155] Information as to non-cognizable cases and investigation of such cases.— (2) New sub-section (4) provides that when a case relates to two or more offences of which at least one is cognizable, the case shall be deemed to be cognizable so that no permission of the Magistrate for investigation of the non-cognizable offence will be necessary in such a case. [s 155.2] Scope and application of section 155: Sub-section (1).— This section directs that the substance of information relating to the commission of a non-cognizable offence lodged in a police-station shall be entered in the station-diary (see Md Ismail, 20 A 151) and the informant shall be referred to the Magistrate as the police are debarred from investigating it under sub-section (2). The section applies where the information relates solely to a non-cognizable offence. But while investigating a cognizable offence and presenting charge sheet for cognizable offence the police are not debarred from investigating any non-cognizable offences arising out of the same facts and including them in their final report [Pravin Chandra Mody v State of AP, AIR 1965 SC 1185 : 1965 (2) Cr LJ 250 (SC); Ram Krishna Dalmia v State, AIR 1958 Punj 172 : 1958 Cr LJ 683 : ILR (1957) Punj 2021 ; Vadlamudi Kutumba Rao v State of AP, AIR 1961 AP 448 : 1961 (2) Cr LJ 605 : 1961 (1) Andh WR 153 : 1961 Mad LJ (Cri) 139]. This view of law has been codified in the new sub-section (4). If a Magistrate not empowered orders an investigation under sub-section (2) in good faith, the proceeding will not be set aside on the ground [section 460 (b)].

The bar laid down in section 155(1) and (2) must be confined to non-cognizable offences, but where the set of facts constitute cognizable as well as non-cognizable offences, the police will be fully within its right to investigate into those set of facts [Mahabir Prasad v State of Bihar, 1975 Cr LJ 1951 : 1975 Pat LJR 338 (Pat); Naresh Chandra Agarwal v The State, 1978 Cr LJ 546 : 1978 All WC 128 : 1978 All Cr R 60 (All)].

Investigation officer has power to investigate the cognizable offences, sections 325 and 308, Indian Penal Code, 1860 in the present case, even without order of Magistrate [Dharam Pal v State of UP, 2006 Cr LJ 1421 (All) : (2006) 54 All CrC 811 : 2006 (2) All LJ 94].

Any effort on the part of the police to look into any complaint by any person which does not contain allegations of commission of cognizable offences on the ground that police are acting upon it to avoid further clashes and to prevent law and order problem is illegal [SM Asthan Saleh v PSR Anjaneyulu, 2003 Cr LJ 248 (p 251) : 2002 (2) Andh LD (Cri) 706 : 2002 (2) Andh WR 532 (AP)]. [s 155.3] Sub-section (1).— The substance of the FIR was not entered in the Daily Diary inasmuch as neither the names of the accused nor the names of the witnesses nor any other details were given in the said entry. Further, there was failure to forward the copy of the FIR to the Area Magistrate. These factors were held to be indicative of the fact of the occurrences. In a case of murder, the non-recording of the substance of the information in Daily Diary Register and not sending the copies of FIR to the Magistrate of the area under sections 155 and 157 assumes importance, particularly when (as in the present case) the evidence of the so-called eye-witnesses was not reliable. In the above circumstances, the prosecution story would not be acceptable [Jagjit Singh v The State, 1990 Cr LJ (NOC) 103 : (1990) 2 DL 135 (Delhi) (DB)]. [s 155.4] Sub-section (2).— Under the Code of 1898 there was a conflict of decisions on two points :

(i)

Whether report of a police officer in a non-cognizable case investigated without order of a Magistrate as required by section 155(2) fall under old section 190(1)(b)

(ii) whether definition of complaint applied to police report.

The Law Commission in its 41st Report volume 1 page 9, to title the conflict recommended that it be made clear that report of a police officer in unauthorised investigation of non-cognizable offence is a complaint and

Page 3 of 6 [s 155] Information as to non-cognizable cases and investigation of such cases.— accordingly in the draft definition of “Complaint” of the words “a Police report”, were substituted for “report of a police officer” and the following explanation was inserted :

Explanation.—A report made by a police officer in a non-cognizable case investigated without conforming to the provisions of sub-section (2) of section 155 shall be deemed to be a complaint.

And definition of “police report” was inserted [vide section 2(r)].

Further in section 190(1)(b) the words “police report of such facts” were substituted for “report in writing of such facts made by a police officer” with the object of limiting it to a report made under section 173, leaving other kinds of reports by a police officer to be treated as complaints (vide 41st Report, p 103).

The Joint Committee while approving the recommendation of Law Commission only redrafted the explanation in the present form, thus :

Explanation.—A report made by a police officer in a case which disclosed, after investigation, the commission of a non-cognizable offence shall be deemed to be a complaint; and the police officer by whom such report is made shall be deemed to be the complainant, to clarify the intention that the report will be deemed to be a complaint only if the offence is discovered, after investigation by the police to be a non-cognizable one (vide, JC Report p v).

Irregularity was alleged where investigation was carried out by Police Officer not empowered to investigate the case. It was held that there was no miscarriage of justice nor accused had been prejudiced in any manner by police investigating the offence without obtaining permission of Magistrate. Order taking cognizance, was held not erroneous [Dharampal v State, 2006 Cr LJ 1421 (All) : (2006) 54 All CrC 811 : 2006 (2) All LJ 94 : 2006 (1) All Cri R 878].

Offence under section 21 of Maharashtra (Urban Areas) Preservation of Trees Act, 1975 is non- cognizable offence. Hence investigation by Police Officer relating to said offence without order of Magistrate as required under section 155(2) of Code of Criminal Procedure, 1973 is not permissible [Mukesh Laxman Das Talreja v Inspector of Police, Mumbai, 2006 Cr LJ (NOC) 462 (Bom) : 2006 (2) Bom CR (Cri) 76 : 2006 (2) Bom LR 1695 : 2006 All MR (Cri) 1589].

In a non-cognizable case police investigated case without any order from competent Magistrate. It was held that taking cognizance of offence based on report of such investigation would be without jurisdiction and would be liable to be set aside [Mohd Mukfur Rahman v Mohd Kejimul Hussain Baruah, 2007 Cr LJ 1536 (Gau) : 2007 (53) All Ind Cas 417].

Magistrate can also grant permission to investigate into non-cognizable offence on the basis of application moved by complainant or any other aggrieved person [Ram Narayan v State of UP, 2010 Cr LJ (NOC) 664 (All) : 2010 (2) ALJ 527 ].

A police officer is not entitled to investigate a non-cognizable offence without an order of a Magistrate. [Vishwajit P Rane v State of Goa, 2011Cr LJ 1289 (p 1295) (Bom)].

Now a controversy has arisen whether the report of a police officer in all non-cognizable cases following an

Page 4 of 6 [s 155] Information as to non-cognizable cases and investigation of such cases.— investigation contrary to section 155(2), ie, without the order of the Magistrate could be treated as a complaint under section 2(d). One view is that the report made by a police on an unauthorised investigation in a noncognizable case is a complaint [Bajji v State of MP, 1981 Cr LJ 1558 : 1981 MPLJ 657 : 1981 Jab LJ 684 (MP); Inder Sain v The State, 1981 Cr LJ 1116 : (1981) 20 DLT 302 : 1981 Chand Cr C 90 (Del); Biswanath Sarat v The State, 1978 Cr LJ 318 : 82 Cal WN 602 (Cal)]. The other view is that if at the commencement of investigation there was a doubt whether the offence was cognizable or non-cognizable and the investigation established commission of a non-cognizable offence, then only the report could be treated as a complaint under section 2(d). If, however, at the very commencement it was apparent that the offence was non-cognizable the report could not be treated as a complaint [P Kunhumuhammed v State of Kerala, 1981 Cr LJ 356 : 1981 Ker LT 50 : 1981 Mad LJ (Cri) 473 (Ker) (difference and courses open to Magistrates under old and new Codes compared)]. In view of the overall context of the matter the latter view laying emphasis on the word “discloses” does not appear to be sound. The correct interpretation appears to be that, in any case, on receipt of information about commission of an offence, cognizable or non-cognizable, police commences investigation which discloses or reveals commission of a non-cognizable offence, the report would be treated as a complaint.

Regarded as a complaint and the police officer as a complainant, cognizance has now to be taken under section 190(1)(a) but examination of the police officer is not required (vide section 200).

Section 155(2) does not expressly confer power on a Magistrate to order investigation in a non-cognizable offence as in section 156(3) and section 159. But such a power may be inferred from the language of subsection (2). Thus, it has been held that instead of referring the informant to the Magistrate, the police can report for order under section 155 (2) and the Magistrate can without taking cognizance of the offence order investigation [Asadulla, 11 Cr LJ 156; see Vishwanath, 8 Bom LR 589 : 4 Cr LJ 183; Nga Saw, 16 Cr LJ 97; Appa, 17 Bom LR 69- CONTRA : Jankidas, 12 B 161]. After the investigation is over; the police should submit a report under section 173 [State v D. Sequeira, AIR 1956 Bom 414 : 1956 Cr LJ 721 ]. Institution of proceeding by the police under section 211, Indian Penal Code, 1860 without submitting report is illegal [Appa Ragho, 17 Bom LR 69]. A Magistrate should not order investigation in a non-cognizable offence arbitrarily or capriciously. He must apply his mind to the facts and before order see whether there are reasonable grounds for believing that an offence has been committed [Mohan Lal v Emperor, AIR 1947 All 149 : 1947 All LJ 27 : (1947) 48 Cr LJ 617 : ILR (1947) All 256 ; Shyamlal Sharma v King-Emperor, AIR 1949 All 483 , 488 : (1949) 50 Cr LJ 719 : 1949 All LJ 350 FB; Biroo v State, AIR 1960 All 509 : 1960 Cr LJ 1059 ]. Where a person makes a complaint to a Magistrate in regard to the commission of a non-cognizable offence without being able to trace the offenders the Magistrate may, in a proper case, order the police to investigate under section 202, for the purpose of ascertaining the truth or falsehood of the complaint which includes ascertainment of a person committing the offence and the manner in which such a person has been committing the offence [Sevantilal S Shah v State of Gujarat, AIR 1969 Guj 14 : 1969 Cr LJ 63 : (1968) 9 Guj LR 925].

If any information or material is given to an officer-in-charge of a police station disclosing the non-cognizable offence, thereafter information or material is given to officer-in-charge disclosing the cognizable offence, he himself is empowered to register the case and there is no requirement of taking permission or order for investigation from the Magistrate concerned [Brij Lal Bhar v State of UP, 2006 Cr LJ 3334 (pp 3336–3337) (All) : 2006 (4) All LJ 731 : 2006 (2) All CrC 864].

Where immediately after the commission of a non-cognizable offence the police reported to the Magistrate and asked for a warrant and a case under section 161, Indian Penal Code, 1860 was instituted under the Magistrate’s order there was no breach of this section [Bhuneshwari, AIR 1931 O 172]. The Magistrate can order investigation in a case under section 294-A, Indian Penal Code, 1860 though the offence may need the sanction of Government for trial [General &c, 33 Cr LJ 678; see Khwaja Nazir, 71 IA 203 : AIR 1945 PC 18 ; 49 Cal WN 191, 195 PC : Hamid, AIR 1945 C 385].

Under sub-section (2), no anticipatory order can be passed at the request of the police for investigation of an offence not yet committed, in the belief that it is likely to be committed in the future, e.g., that bribe would be paid to an officer on a certain day [Shyamalal Sharma v King-Emperor, AIR 1949 All 483 FB : (1949) 5 Cr LJ 719 : 1949 All LJ 350]. In this case it is pointed out that the seemingly opposite view in Superintendent and Remembrancer of Legal Affairs, WB v K Zahiruddin, AIR 1946 Cal 483 : (1946) 47 Cr LJ 564 , is not a decision

Page 5 of 6 [s 155] Information as to non-cognizable cases and investigation of such cases.— on the point but it simply noticed a practice of the police in Bengal; nor can the Privy Council in appeal [Zahiruddin v King–Emperor, AIR 1947 PC 75 : 74 IA 80 : (1947) 48 Cr LJ 679 : 51 Cal WN 555 : 49 Bom LR 521] be said to have approved it as the question did not arise there]. Section 3 of the Prevention of Corruption Act, 1947 has made offences under sections 161, 165 or 165-A, Indian Penal Code, 1860 cognizable offences.

Offence under sections 8 and 2, 21 of the Maharashtra (Urban Areas) Preservation of Trees Act, 1975 is a noncognizable offence and, therefore, no police officer shall investigate the said offence without the order of a Magistrate [Mukesh Laxman Das Talreja v Inspector of Police Borivali, Mumbai, 2006 Cr LJ (NOC) 462 (Bom) : 2006 (5) AIR Bom R 79 : 2006 (2) Bom CR (Cri) 76 ]

Section 155(2) does not debar an Assistant Sub-inspector of Railway Protection Force to investigate a noncognizable offence under Railway Property (Unlawful Possession) Act, 1966 without prior approval of Magistrate [R Muthu v Assistant Sub-Inspector RPF, 1983 Cr LJ 1309 (Mad)].

A Range Forest officer shall be deemed to be a police officer for the purpose of section 156, Code of Criminal Procedure, 1973 but not police officer for the purpose of section 155, Code of Criminal Procedure, 1973. The Magistrate cannot direct a Forest Range officer to investigate when the latter is himself a complainant [S Muran v State of Karnataka, 2004 Cr LJ 2272 (Kant) : 2004 (6) Kant LJ 115 : 2004 AIR Kant HCR 1594].

Jurisdiction of police officer to investigate is co-terminous, with jurisdiction of Court to take cognizance [Lilade Sitade Pavaiya v State of Gujarat, 1983 Cr LJ 934 : 1983 (1) Crimes 768 : (1982) 23 Guj LR 734 (Guj)]. [s 155.5] Arrest in non-cognizable offences.— In non-cognizable offences, the police officer before arresting the accused must obtain warrant under section 155, Code of Criminal Procedure, 1973 from the Magistrate [J Vararaj v State, 2003 (2) Crimes 326 (Mad)]. [s 155.6] Sub-section (3).— Investigation made under order of the Magistrate becomes an investigation under chapter 12 and the final report is forwarded to the Magistrate under section 173(2). But investigation in a non-cognizable offence authorised under specified Act eg Opium Act does not necessarily bring it under chapter 12 [Naresh 44 Cr LJ 145].

In an investigation under section 156(3), section 162 is attracted [Miyabhai Pirbhai v State, AIR 1963 Guj 188 : 1963 (2) Cr LJ 141 : (1963) 4 Guj LR 253].

The Magistrate need not forward complaint to police for investigation in each and every case. Where prima facie case is disclosed the Magistrate would be justified in taking cognizance [Ram Swaroop v Mohd Zaved Razak, 2005 Cr LJ 1725 (1726) (SC) : AIR 2005 SC 2005 : 2005 (1) Crimes 345 : (2005) 10 SCC 393 ]. [s 155.7] Sub-section (4).— A suo motu move as the part of the police officer to investigate a cognizable offence impelled by the information, received from some source is not outside the purview of the provisions of sections 155 to 157, Code of Criminal Procedure, 1973 or any other provisions of the Code [State v V Jayapaul, 2004 Cr LJ 1819 (SC) : 2004 SCC (Cri) 1607 : AIR 2004 SC 2684 : 2004 (2) Crimes 450 . No bias can be inferred in case where the police officer conducts search, recovers contraband, investigates the case and submits charge-sheet as a part of official duty and he is not personally interested [S Jeevanathanam v State, 2004 Cr LJ 3834 (SC) : AIR 2004 SC 4608 : 2004 (3) Crimes 109 : (2004) 5 SCC 230 ].

Sub-section (4) of section 155 was introduced in the Code of Criminal Procedure, 1973 in 1973 to overcome the controversy about investigation of non-cognizable offences by the police without the leave of the Magistrate. If the facts reported to the police disclose both cognizable and non-cognizable offences, the police would be acting within the scope of its authority in investigating both the offence as the legal fiction enacted in sub-

Page 6 of 6 [s 155] Information as to non-cognizable cases and investigation of such cases.— section (4) provides that even a non-cognizable case shall, in that situation, be treated as cognizable [State of Orissa v Sarat Chandra Sahu, (1996) 6 SCC 435 ].

If, out of two or more offences one is cognizable the case becomes a cognizable case [State of Bihar v PP Sharma, AIR 1991 SC 1260 : 1991 Cr LJ 1438 : 1991 (2) Crimes 113 (SC)].

Where a case involves one cognizable offence along with non-cognizable offences, it should not be treated as a non-cognizable case for the purpose of sub-section (2) of section 155 and this is the intention of legislation which is manifested in section 155(4). Thus, it was held by the Supreme Court that in a case of bigamy, where the offence was clubbed with other offences under sections 417, 420 and 498 A, Indian Penal Code, 1860, the cognizance taken by the Magistrate on the basis of charge-sheet submitted by police was valid [A Subhash Babu v State of AP, AIR 2011 SC 3031 : (2011) 7 SCC 616 : (2011) 3 SCC (Cri) 267 ]. [s 155.8] Irregularity in investigation.— Alleged irregularity of the Police Officer in not being empowered to investigate the case is not one of the irregularities mentioned in section 461, Code of Criminal Procedure, 1973 which vitiates proceedings. Moreover, it is not claimed that there was any miscarriage of justice or that the accused had been prejudiced in any manner by police investigating the offence without obtaining permission of the Magistrate [Dharam Pal v State of UP, 2006 Cr LJ 1421 (All) : 2006 (2) All LJ 94 : (2005) 53 All CrC 808]. [s 155.9] Quashing of charge.— Where the accused committed offence under section 167 of Representation of People Act only but chargesheet filed by police under sections 167 and 134 of Representation of People Act and section 186 of Indian Penal Code, 1860 without taking permission of Court then charge is liable to be quashed. [Arun Kumar Bhargava v State of MP, 2002 Cr LJ NOC 21 : 2001 (1) MPLJ 691 (MP)]. End of Document

[s 156] Police officer’s power to investigate cognizable case.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER XII INFORMATION TO THE POLICE AND THEIR POWERS TO INVESTIGATE

The Code of Criminal Procedure, 1973 CHAPTER XII INFORMATION TO THE POLICE AND THEIR POWERS TO INVESTIGATE [s 156] Police officer’s power to investigate cognizable case.— (1) Any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of chapter XIII. (2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate. (3) Any Magistrate empowered under section 190 may order such an investigation as abovementioned. [s 156.1] Changes.— Section 156 corresponds to old section 156. [s 156.2] Scope and application of section 156.— The section confers on the police unrestricted power to investigate a cognizable offence without the order of a Magistrate or without a formal first information report. This they may do either on information under section 154 or of their own motion on their own knowledge or to other reliable information [section 157; Khwaja Nazir, 71 IA 203, 212 : 49 Cal WN 191, 192 : AIR 1945 PC 18 ]. The fact that the said police officer prepared the FIR on the basis of the information received by him and registered the suspected crime does not, disqualify him from taking up the investigation of the cognizable offence. A suo motu move on the part of the police officer to investigate a cognizable offence impelled by the information received from some sources is not outside the purview of the provisions contained in the sections 154 to 157 of the Code of Criminal Procedure, 1973 or any other provisions of the Code [State v Jayapaul, AIR 2004 SC 2684 : 2004 Cr LJ 1819 : 2004 (5) SCC 223 : 2004 (2) Crimes 450 : 2004 AIR SCW 1762 (SC)].

Investigation envisaged by section 156 and section 202 is different. Investigation under section 202 is of limited nature intended only for helping Magistrate to decide whether there was sufficient ground for him to proceed further [Dilawar Singh v State, 2007 Cr LJ 4709 (SC) : AIR 2007 SC 3234 : 2007 (3) Crimes 388 : (2008) 3 SCC (Cri) 330 ].

Where police reached the conclusion that allegations made by petitioner did not make out any case of cognizance offence and they did not carry out any investigation, it was held that remedy available to the petitioner in such cases is to make a complaint before Court of competent Judicial Magistrate as his functions cannot be discharged by writ Court [Anup Kumar Ghosh v State, 2006 Cr LJ 16 (Cal)].

Page 2 of 34 [s 156] Police officer’s power to investigate cognizable case.— There is no principle or binding authority to hold that the moment the competent police officer, on the basis of information received, makes out an FIR incorporating his name as the informant, he forfeits his right to investigate. If at all, such investigation could only be assailed on the ground of bias or real likelihood of bias on the part of the investigating officer. The question of bias would depend on the facts and circumstances of each case [State v Jayapaul, AIR 2004 SC 2684 : 2004 Cr LJ 1819 : 2004 (5) SCC 223 : 2004 (2) Crimes 450 (SC)].

In the present case, the police officer received certain discreet information, which, according to his assessment, warranted a probe and therefore made up his mind to investigate. The formality of preparing the FIR in which he records the factum of having received the information about the suspected commission of the offence and then taking up the investigation after registering the crime, does not, by any semblance of reasoning, vitiate the investigation on the ground of bias or the like factor. If the reason which weighed with the High Court could be a ground to quash the prosecution, the powers of investigation conferred on the police officers would be unduly hampered for no good reason. What is expected to be done by the police officers in the normal course of discharge of their official duties will then be vulnerable to attack [State v Jayapaul, AIR 2004 SC 2684 : 2004 Cr LJ 1819 : 2004 (5) SCC 223 : 2004 (2) Crimes 450 (SC)]. It makes no difference whether that information was reduced to writing or not at that particular stage [Kantilal Damodardas v State of Gujarat, AIR 1970 Guj 218 : 1970 Cr LJ 1359 : (1970) 11 Guj LR 834]. This statutory right to investigate a cognizable offence cannot be interfered with or controlled by the judiciary and the High Court has no power under section 401 or section 482 to stop such investigation in a cognizable offence. It is open to the Court to take or not to take action when the police prefer a charge sheet after investigation, but the Court’s function does not begin until that stage [Khwaja Nazir, supra : SN Sharma v Biplen Kumar Tiwari, AIR 1970 SC 786 : 1970 Cr LJ 764 : (1970) 1 SCC 653 (SC); State of Bihar v JAC Saldanha, AIR 1980 SC 326 : 1980 Cr LJ 98 : (1980) 1 SCC 554 (SC); The Crown v Mohammad Sadiq Niaz, AIR 1949 Lah 204 : (1949) 50 Cr LJ 965 ]. Offences punishable under Essential Commodities Act, 1955 can be investigated under section 156 [Malepati narayan v Station House Officer, AIR 1971 AP 29 : 1971 Cr LJ 32 ]. The High Court held that the statutory power of the police to investigate a cognizable offence is not available in respect of an offence triable under the WB Cr Law Am (Special Courts) Act, 1949, but the Supreme Court overruled the contention [State of WB v SN Basak, AIR 1963 SC 447 : 1963 (1) Cr LJ 341 : 1963 (2) SCR 52 . Arrest without warrant of person concerned in cognizable offence (section 41)].

Where no material exists to show mala fides enmity or bias in filing the FIR or that dominant object was character assassination the proceedings, cannot be quashed [State of Bihar v PP Sharma, AIR 1991 SC 1260 : 1991 Cr LJ 1438 SC : 1991 (2) Crimes 113 (SC) ].

Where earlier two complaints did not find place in the register of FIR initiating of investigation on the basis of third complaint on the basis of which FIR was registered was held not infirm [Manoranjan Mondal v UOI, 2005 Cr LJ 1098 (Cal)].

Conviction cannot be set aside on the ground of illegality or irregularity of investigation unless it causes prejudice to the accused [State of UP v Bhagwant Kishore Joshi, AIR 1964 SC 221 : 1964 (1) Cr LJ 140 (SC); H N Rishbud v State of Delhi, AIR 1955 SC 196 ; Tilakeshwar Singh v State of Bihar, AIR 1956 SC 238 ; Niranjan Singh v State of UP, AIR 1957 SC 142 ; Mobarik Ali Ahammed v State of Bombay, AIR 1957 SC 857 ; Din Dayal Sharma v State of UP, AIR 1959 SC 831 ; RP Kapur v Sardar Pratap Singh Kairon, AIR 1961 SC 1117 ; Major EG Barsay v State of Bombay, AIR 1961 SC 1762 ; Munna Lal v State of UP, AIR 1964 SC 28 ; State of UP v N Venugopal, AIR 1964 SC 33 ; State of UP v Bhagwant Kishore Joshi, AIR 1967 SC 528 ; Abhinandan Jha v Dinesh Mishra, AIR 1968 SC 117 ; Sailendranath Bai v State of Bihar, AIR 1968 SC 1292 ; Dr MC Sulkunta v State of Mysore, AIR 1971 SC 508 ; State of AP v PV Narayana, AIR 1971 SC 811 ; Khandu Sonu Dhobi v State of Maharashtra, AIR 1972 SC 958 ; Nika Ram v State of HP, AIR 1972 SC 2077 ; AC Sharma v Delhi Administration, AIR 1973 SC 913 ; Durga Dass v State of HP, AIR 1973 SC 1379 ; AR Antulay v Ramdas Srinivas Nayak, AIR 1984 SC 718 ; State of Haryana v Bhajan Lal, AIR 1992 SC 604 ; Directorate of Enforcement v Deepak Mahajan, AIR 1994 SC 1775 ; State through CBI v Dawood Ibrahim Kaskar, AIR 1997 SC 2494 ; State of MP v Shri Ram Singh, AIR 2000 SC 870 ; Navinchandra N Majithia v State of Meghalaya, AIR 2000 SC 3275 ; UOI v Prakash P Hinduja, AIR 2003 SC 2612 ; State of MP v Ramesh C Sharma, (2005)12 SCC 628 ; MC Mehta v UOI, AIR 2007 SC 1087 (Taj Corridor Scam)].

Page 3 of 34 [s 156] Police officer’s power to investigate cognizable case.— The duty of the investigating officer is not merely to bolster up a prosecution case for the accused being convicted but to bring out the real unvarnished truth [Jamuna Chaudhari v State of Bihar, AIR 1974 SC 1822 : 1974 Cr LJ 890 : (1974) 3 SCC 774 (SC)].

Where the petitioner alleged that the police did not take any action against the financiers who had taken forcible possession of vehicle, despite complaint. The police reached the conclusion that the allegation did not make out any offence. It was held that in such a situation the only remedy available was to make complaint before the Court of competent judicial Magistrate [Arup Kumar Ghosh v State of WB, 2006 Cr LJ 16 (17) (Cal)].

Police officers should refrain from addressing communications to the Court on pending matters required to be determined judicially [State of Bihar v JAC Saldanna, AIR 1980 SC 326 : 1980 Cr LJ 98 : (1980) 1 SCC 554 (SC)]. Powers and duties of police and procedure for investigation stated [Amrik Singh v State of Punjab, 1983 Cr LJ 1405 : (1983) 10 Cr LJ 416 (P&H)]. In a Gujarat case it was clear from the facts that serious allegations about misappropriation of valuable properties were made and, therefore, it was necessary for the police to investigate into the alleged offences. That being the exclusive field of the executive, it was not desirable to prevent the police from investigation in the offence, by the High Court, in exercise of the inherent powers under section 482. Inherent powers should normally be exercised if it is necessary to prevent the abuse of the process of the Court or otherwise to secure the ends of justice. Quashing the order of the Magistrate is not necessary either to prevent the abuse of the process of the Court or to secure the end of the justice. On the contrary, if the order is quashed, the effect would be otherwise. The inherent powers of the High Court are meant to be exercised sparingly and with circumspection when there is reason to believe that process of law is being misused. At the initial stage, Court has to consider the allegations made in the complaint and the documents accompanying thereto [Kanaksinh Hathisinh Jadeja v Blabhadrasinh Narendraisinh Jhala, 1988 Cr LJ 578 : (1987) 28 Guj LR 1219 : 1987 CrLR (Guj) 611 (Guj)].

The case in which investigation is in process, High Court has no power to interfere with that in order to arrest a particular accused in the case [Niyamavedi represented by its member K Nandini v Raman Srivastava Inspector General of Police, 1995 Cr LJ 1976 (Kerala)].

Where the investigation of the case is running on and if violation of fundamental right of any party does not take place, the interference of High Court cannot be deemed to be proper [Niyamavedi rep/by its member K Nandini v Raman Srivastava Inspector General of Police, 1995 Cr LJ 1976 (Kerala)].

The practice of the Investigating Officer himself recording a dying declaration during the course of investigation ought not to be encouraged. It would be better to have a dying declaration recorded by the Magistrate. But no hard and fast rule can be laid down in this regard. It all depends upon the facts and circumstances of each case. In the instant case, the Investigating Officer belonged to the Police Station at “B”, where the deceased was alleged to have sustained the burn injuries. Upon intimation by wireless message that the deceased was admitted in Hospital at “L”, the officer straightway went to that place. He met the doctor and recorded the statement of the deceased. The FIR was issued on the basis of that statement. The investigation went on at “B”. The Police Station “B” was 92 kms. from “L” and that “B” was in a different district altogether. In these circumstances, no fault could be found with the Investigating Officer, for not getting the dying declaration recorded by a Magistrate. [State of Punjab v Amarjit Singh, 1989 Cr LJ 95 : AIR 1988 SC 2013 : 1988 (3) Crimes 295 : (1989) 1 SCJ 49 (SC) (GL Oza & K Jagannath Shetty, JJ.)].

Where investigating officer has been allowed to record the statement of the prosecutrix and submit the report to the Court no revision can lie against such type of order under section 40 Code of Criminal Procedure, 1973 at this stage while the trial of this case has been already started [Satish Pandurang Jagcap v State of Maharashtra, 1995 Cr LJ 1509 (Bom)].

When police investigation violates rights of petitioner, a political leader under Articles 14, 19 and 21 of

Page 4 of 34 [s 156] Police officer’s power to investigate cognizable case.— Constitution then judicial review under Article 226 of Constitution is permissible. [Alique Ahmad v State of UP, 2002 Cr LJ 132 : 2001 All LJ 2117 : 2001 (3) All Cr R 2067 (All)].

Where prima facie case made out against accused then quashing of proceedings at very initial stage of investigation would not be proper. [B Akala v State of Jharkhand, AIR Jhar HCR 350 : 2001 Cr LJ 4159 : 2001 (3) BLJR 2067 (Jhar)].

Any type of fortune or cruel, inhuman treatment during investigation, interrogation comes within ambit of Article 21 of Constitution. [Anguri v State, 2001 Cr LJ 3697 : (2001) 92 DLT 606 (Del)].

In absence of the final report regarding closing of case by sub-inspector of police as mistake of fact, investigation is faulty and partial. [T Krishnan v State, 2001 Cr LJ 2986 (Mad)].

The appellant accused was found guilty of possessing 1 kg of opium without any permit or licence. The acquittal was sought on the ground that the Investigating Officer and the complainant are the same person. The search of appellant was conducted in presence of and under instructions of Gazetted Officer. The extracts of deposition of other prosecution witnesses show that it was not Investigating Officer alone who was involved in investigation. Conviction was held proper. [Surender alias Kala v State of Haryana, AIR 2016 SC 508 : 2016 (4) SCC 617 ].

In a murder case, the non-production of CCTV footage, non-collection of call records and sim details of mobile phone seized from the accused, was held to be not merely an instance of faulty investigation but also a case amounting to withholding of best evidence. [Tomaso Bruno v State of UP, AIR 2015 SC (Supp) 412 : 2015 (7) SCC 178 ].

For the cases of death in police encounters the Apex Court laid down requirements to be followed as standard procedure for thorough, effective and independent investigation. These requirement norms shall be strictly followed by treating them as law under Article 141 of the Constitution of India. [People’s Union for Civil Liberties v State of Maharashtra, AIR 2015 SC (Supp) 1659 : 2014 (10) SCC 635 ]. [s 156.3] Territorial jurisdiction.— The Apex Court held that the police possess power to conduct investigation for offences committed beyond territorial jurisdiction. [Manoj Kumar Sharma v State of Chhattisgarh, AIR 2016 SC 3930 : 2016 (9) SCC 1 ].

The territorial jurisdiction of a police station for the purpose of investigation is co-extensive with that of the appropriate Court which is competent to try the offence. The accused would be discharged where IO having no territorial jurisdiction investigates, into the offence [TP Nanda Kumar v State of Kerla, 2008 Cr LJ 298 (300) : 2008 (1) Ker LJ 269 (Ker) : 2007 (4) Ker LT 775 ]. [s 156.4] Investigation by Special Officer.— Section 5A of the Prevention of Corruption Act first inserted by Act 59 of 1952 and later substituted by section 6, Anti-Corruption Laws (Am) Act 40 of 1964, provided that no police officer below the rank of (i) Inspector in Delhi Special Police Establishment, (ii) Assistant Commissioner in the Presidency towns of Calcutta and Madras, (iii) Superintendent of Police in the Presidency town of Bombay, and (iv) Deputy Superintendent of Police elsewhere, shall investigate an offence under sections 161, 165, 165-A, Indian Penal Code, 1860 or section 5, Prevention of Corruption Act without the order of the Presidency Magistrate, Magistrate of the first class or a police officer not below the rank of Inspector if especially authorised by State Government by general or special order, or make arrest therefore without warrant (see Gazzette of India, Extra, Pt II, section I, No. 43, dated 19 December 1964; President’s assent received on 18 December 1964). It therefore made section 156 inapplicable to the investigation of an offence of criminal misconduct under section 5 (2) of the Act or under sections 161,165, or 165-A, PC as such investigation is to be made not by an officer other than the designated officer. (See Prevention Corruption now the Act 1988). With reference to above provision of the Criminal Law Act, 1952 (as then in force), it was held that investigation by officer below prescribed rank would not vitiate the

Page 5 of 34 [s 156] Police officer’s power to investigate cognizable case.— trial [Rishbud HN v State of Delhi, AIR 1955 SC 196 : 1955 Cr LJ 526 ; Dindyal Sharma v State of UP, AIR 1959 SC 831 : 1959 Cr LJ 1120 (SC); Barsay EG v State of Bombay, AIR 1961 SC 1762 : 1961 (2) Cr LJ 828 (SC); Ramchand Tolaram Khatri v State, AIR 1956 Bom 287 : 1956 Cr LJ 585 : 58 Bom LR 90; Debi Prasanna Ghose v State, AIR 1956 Cal 56 : 1956 Cr LJ 396 (FB) of course the statutory safeguard should be observed [State of MP v Mubarak Ali, AIR 1959 SC 707 : 1959 Sup (2) SCR 20 : 1959 Cr LJ 920 ].

Irregularities would not in any case vitiate the trial of the accused if not prejudicial [State of UP v Bhagwanti Kishore Joshi, AIR 1964 SC 221 : 1964 (1) Cr LJ 140 (SC)]. Permission must not be given mechanically and must be accompanied by reasons [State of MP v Mubark Ali, AIR 1959 SC 707 : 1959 Cr LJ 920 (SC)].

Investigation by the very police officer to whom bribe was alleged to be given adversely affects reliability of the prosecution case [Bhagwan Singh v State of Rajasthan, AIR 1978 SC 985 : 1976 Cr LJ 713 : (1976) 1 SCC 15 (SC)].

The Head Constable arrested the accused and recovered on search a pistol and cartridges from the accused. It was also on his complaint that a formal FIR was lodged and the case was initiated. It was held that he being the complainant should not have proceeded with the investigation of the case. Such practice, should not be resorted to so that there may not be any occasion to suspect fair and impartial investigation [Megha Singh v State, AIR 1995 SC 2339 : 1995 Cr LJ 3988 : 1996 (11) SCC 709 ]. [s 156.5] Investigation—Investigating agency not entitled to divulge any information gathered during investigation to public.— The investigating officers or their superior officers are not entitled to disclose the details of the investigation by making available to the public, the copies of the documents or the information obtained during the investigation. [Vimal Ashok Thakre v Incharge, Police Station Officer, Nagpur, 2011 Cr LJ 139 (145) (Bom)]. [s 156.6] Allegations against police personnel—Appropriate authority.— Since there are allegations against police personnel, the interest of justice would be better served if the case is registered and investigated by an independent agency like the CBI [Ramesh Kumar v State (NCT of Delhi), 2006 Cr LJ 1622 (pp 1624–25) (SC) : (2006) 2 SCC 677 : 2006 (1) Crimes 229 : AIR 2006 SC 1322 ]. [s 156.7] Power to order Investigation by CBI.— A direction by the High Court, in exercise of its jurisdiction under Article 226 of the Constitution, to the CBI to investigate a cognizable offence alleged to have been committed within the territory of a State without the consent of that State will neither impinge upon the federal structure of the Constitution nor violate the doctrine of separation of power and shall be valid in law. Being the protectors of civil liberties of the citizens, this Court and the High Courts have not only the power and jurisdiction but also an obligation to protect the fundamental rights, guaranteed by Pt III in general and under Article 21 of the Constitution in particular, zealously and vigilantly [State of WB v Committee for Protection of Democratic Rights, AIR 2010 SC 1476 : (2010) 3 SCC 571 ].

The Supreme Court concluded as follows:

(1) The fundamental rights, enshrined in Pt III of the Constitution, are inherent and cannot be extinguished by any constitutional or statutory provision. Any law that abrogates or abridges such rights would be violative of the basic structure doctrine. The actual effect and impact of the law on the rights guaranteed under Pt III has to be taken into account in determining whether or not it destroys the basic structure. (2) Article 21 of the Constitution in its broad perspective seeks to protect the persons of their lives and personal liberties except according to the procedure established by law. The said Article in its broad application not only takes within its fold enforcement of the rights of an accused but also the rights of the victim. The State has a duty to enforce the human rights of a citizen providing for fair and impartial

Page 6 of 34 [s 156] Police officer’s power to investigate cognizable case.— investigation against any person accused of commission of a cognizable offence, which may include its own officers. In certain situations, even a witness to the crime may seek for and shall be granted protection by the State. (3) In view of the constitutional scheme and the jurisdiction conferred on the Supreme Court under Article 32 and on the High Courts under Article 226 of the Constitution the power of judicial review being an integral part of the basic structure of the Constitution, no Act of Parliament can exclude or curtail the powers of the Constitutional Courts with regard to the enforcement of fundamental rights. As a matter of fact, such a power is essential to give practicable content to the objectives of the Constitution embodied in Pt III and other parts of the Constitution. Moreover, in a federal constitution, the distribution of legislative powers between the Parliament and the State Legislature involves limitation on legislative powers and, therefore, this requires an authority other than the Parliament to ascertain whether such limitations are transgressed. Judicial review acts as the final arbiter not only to give effect to the distribution of legislative powers between the Parliament and the State Legislatures, it is also necessary to show any transgression by each entity. Therefore, to borrow the words of Lord Steyn, judicial review is justified by combination of “the principles of separation of powers, rule of law, the principle of constitutionality and the reach of judicial review”. (4) If the federal structure is violated by any legislative action, the Constitution takes care to protect the federal structure by ensuring that Courts act as guardians and interpreters of the Constitution and provide remedy under Articles 32 and 226, whenever there is an attempted violation. In the circumstances, any direction by the Supreme Court or the High Court in exercise of power under Article 32 or 226 to uphold the Constitution and maintain the rule of law cannot be termed as violating the federal structure. (5) Restriction on the Parliament by the Constitution and restriction on the Executive by the Parliament under an enactment, do not amount to restriction on the power of the Judiciary under Articles 32 and 226 of the Constitution. (6) If in terms of Entry 2 of List II of The Seventh Schedule on the one hand and Entry 2A and Entry 80 of List I on the other, an investigation by another agency is permissible subject to grant of consent by the State concerned, there is no reason as to why, in an exceptional situation, court would be precluded from exercising the same power which the Union could exercise in terms of the provisions of the Statute. Exercise of such power by the constitutional courts would not violate the doctrine of separation of powers. In fact, if in such a situation the court fails to grant relief, it would be failing in its constitutional duty. (7) When the Special Police Act itself provides that subject to the consent by the State, the CBI can take up investigation in relation to the crime which was otherwise within the jurisdiction of the State Police, the court can also exercise its constitutional power of judicial review and direct the CBI to take up the investigation within the jurisdiction of the State. The power of the High Court under Article 226 of the Constitution cannot be taken away, curtailed or diluted by section 6 of the Special Police Act. Irrespective of there being any statutory provision acting as a restriction on the powers of the Courts, the restriction imposed by section 6 of the Special Police Act on the powers of the Union, cannot be read as restriction on the powers of the Constitutional Courts. Therefore, exercise of power of judicial review by the High Court would not amount to infringement of either the doctrine of separation of power or the federal structure [State of WB v Committee for Protection of Democratic Rights, AIR 2010 SC 1476 : (2010) 3 SCC 571 ].

Inspector of police in crime branch was arrested in stamp scam case and C.B.I. was directed to take up thorough investigation considering unsatisfactory performance of State Police and number of higher ups. Said directions were issued only in March 2004. Approach of High Court in granting bail was by taking the view that all evidence gathered by C.B.I. must be treated as evidence gathered belatedly. Supreme Court though did not fully endorse this view but declined to interfere with the order of High Court granting bail [State of Maharashtra v Vashistha Rambhau Andhale, 2007 Cr LJ 4303 (SC) : 2007 (3) Crimes 344 : (2007) 7 SCC 341 : (2007) 3 SCC (Cri) 359 ].

A Magistrate cannot direct an investigation on a complaint case by CBI [State of Karnataka v Thammaiah, 1999

Page 7 of 34 [s 156] Police officer’s power to investigate cognizable case.— Cr LJ 53 (Kant); State of Maharashtra v Ibrahim A Patel, 2008 Cr LJ 1496 (1500) (Bom-DB) : 2008 (2) AIR Bom R 180 : 2008 All MR (Cri) 1452 : 2008 (2) Rec Cri R 752; Central Bureau of Investigation v State of Rajasthan, AIR 2001 SC 668 : (2001) 3 SCC 333 ].

The record, in the present case, disclosed that though initially the investigating officer came to a prima facie conclusion that the death of minor deceased was homicidal, later on the investigating officer came to a prima facie conclusion that death was accidental. The death of the deceased had occurred on 19 May 2009 and no much headway had been made by the investigating agency to come to a definite conclusion. Injuries were found on the person of deceased during the post-mortem. Having regard to the investigation carried out so far it was held the case deserved to be handed over to CBI. [Vimal Ahoke Thakre v Incharge, Police Station Officer, Nagpur, 2011 Cr LJ 139 (146) (Bom)].

In case of child trafficking children in large number were brought to the State of Kerala from 3–4 other States. These children were intercepted at the railway station. Railway police registered the case. The Crime Branch also carried out investigation and arrested a large number of persons. The Kerala High Court was of the view that a proper investigation was needed hence the investigation was entrusted to C.B.I. [Rajendra Prasad v UOI, AIR 2016 (NOC) 182 (KER)].

The murderous assault by indiscriminate use of firearms resulted in the death of three persons. The assault was made in broad day light under public gaze. The person cited as eye-witness by local police refrained from the statement given to police. Therefore, the police was unable to identify and present eye-witnesses. The incident though was not having national and international ramifications but was certainly sufficient to leave society shell-shocked. The Apex Court ordered reinvestigation by CBI. [Pooja Pal v UOI, AIR 2016 SC 1345 : 2016 (3) SCC 135 ]. [s 156.8] Trade Marks Act.— Offences under sections 78 and 79, Trade Marks Act, 1958 are punishable with imprisonment upto 2 years. Hence they are non-cognizable offences, which the police cannot investigate without the orders of a Magistrate. [Zahir Ahmad v Azam Khan, 1996 Cr LJ 290 (p 292) : 1996 (2) All Cr R 16 (Cal)].

The accused has no right to interfere on the question as to who should conduct the investigation. [CBI v Rajesh Gandhi, AIR 1997 SC 105 : 1997 Cr LJ 63 : (1996) 11 SCC 261 : 1997 SCC (Cri) 79 (SC)]. [s 156.9] Death in mysterious circumstances.— Where a boy studying in a residential school and residing the hostel died under mysterious circumstances and the Investigating Officer recorded that it was a case of suicide, the conduct was held to be illegal. [G Nageshwar Rao v DIG Police AP, 1997 Cr LJ 46 (AP)]. [s 156.10] Right of Police/Vigilance to conduct enquiry if affected by Kerala Cooperative Societies Act, 1969.— Section 68-A of the Kerala Cooperative Societies Act, 1969 does not affect or take away the right of the police/V. and ACB to conduct enquiry/investigation in accordance with the provisions of chapter XII of the Code into a cognizable offence said to be committed by a public servant connected with a society registered under the said Act on receipt of information regarding commission of such offence, or the power of Special Judge to direct enquiry, registration of the case, investigation and proceed in the matter as provided in the Code. [GS Prakash v State of Kerala, 2011 Cr LJ 3771 (p 3784) (Ker)]. [s 156.11] Lapse irregularity or illegality in investigation.— Inept or deficient investigation could never be sufficient to reject the evidence of witnesses. Their credibility has to be tested on other circumstances, like, the chance of their presence at the place of occurrence, the credibility of their claim of having seen the occurrence and intrinsic value of their evidence when they claim to be eyewitness to the occurrence. In the above connection, it has also to be seen by the Court as to whether their evidence was inspiring confidence and was free from material infirmities making the same creditworthy, whether they had stood test of cross-examination and had come out of it unscathed. If the above yardsticks are applied in deciding the credibility of the witnesses in the light of the attack against them set up by the defence to question their credibility, which may be on many counts, and the Court finds that the circumstances, like, the

Page 8 of 34 [s 156] Police officer’s power to investigate cognizable case.— witness being inimical appears of no consequence, for, there was no reason for the witness to falsely implicate the accused, then the evidence of witnesses may be said to be creditworthy. But if it is shown from the evidence that there was quite some lapse of time when no one including the witnesses, was coming forward to narrate the incident to the police in spite of having such opportunities or occasions and were not naming the accused persons, then a very serious defect appears in the prosecution case, which may discredit the whole prosecution narration. [Mritunjay Mani Mishra v State of Bihar, 2011 Cr LJ 1966 (1975) (Pat)]. An officer not properly performing his duty to investigate is liable to departmental action. Directions were issued to D.I.G. Police for the purpose. [Neyaz Ahmad v State of Bihar, 1999 Cr LJ 2550 (Pat)].

The Investigating Officer in a murder case is expected to be diligent, truthful and fair in his approach and his performance should always be in conformity with police manual and a default or breach of duty may prove fatal to the prosecution’s case. The Supreme Court further held that in the instant case investigation was carried out with unconcerned and uninspiring performance, with no firm and sincere efforts with the needed zeal and spirit to bring home the guilt of the accused. The judgment of conviction recorded by the High Court was set aside. [Mahavir Singh v State of MP, AIR 2016 SC 5231 : 2016 (10) SCC 220 ].

In case of robbery, neither the photographer was examined nor the negatives of photographs of chance fingerprints were produced. The Apex Court held that the said lapse cannot result in acquittal of accused. The Court further held that the criminal trials should not be made casualty for such lapses in investigation or prosecution. [Ajay Kumar v Flag Officer, Commanding-in-Chief, AIR 2016 SC 3528 : 2016 (9) SCC 179 ].

The fact of marriage were stated by witnesses for the first time during trial in murder case. Accusation cannot be dispensed with particularly when there was no material contradiction in testimonies. Similarly nonmentioning of the time of the incident in inquest proceedings, no correct date of receipt of the FIR was shown but the defence witness himself stating the fact that due to workload entry was made later on; it simply shows remissness on the part of Investigating Officer and should not be treated fatal to prosecution case. [Yogesh Singh v Mahabeer Singh, AIR 2016 SC 5160 : 2016 (10) Scale 219 ].

Defects in investigation does not lead to total rejection of prosecution case. [Ratash v State of Rajasthan, 2007 Cr LJ 758 (SC); Sheo Shankar Singh v State of Jharkhand, 2011 Cr LJ 2139 (SC)].

Faulty investigation cannot alone be ground to acquit accused [State of UP v Jagdeo, AIR 2003 SC 660 : 2003 Cr LJ 844 : 2003 (1) SCC 456 : 2003 (3) Crimes 95 (SC)].

Where the prosecution case was fully established by direct testimony of eye-witnesses corroborated by medical evidence, any failure or omission of investigating officer could not render prosecution case doubtful or unworthy of belief [Amar Singh v Balwinder Singh, AIR 2003 SC 1164 : 2003 Cr LJ 1282 : 2003 (2) SCC 518 : 2003 (2) Crimes 186 : 2003 AIR SCW 717 (SC); See also Govind v State of MP, 2005 Cr LJ 1244 (MP)].

When the enforcement officer seized contraband opium from accused and registered the crime report and also carried out the investigation. It was held that Enforcement officer being complainant and also the investigation being carried out by him, the trial on that basis was not vitiated. [Bhanwan Singh v UOI, 2006 Cr LJ 3585 (pp 3589–90) (Raj) : 2006 (2) CrLR (Raj) 1101 ].

Though the first investigation was defective; the subsequent investigating officers had properly done the investigation and, therefore, there was no such defect in the investigation which could accrue to the benefit of accused [Prakasha v State of Karnataka, 2005 Cr LJ 1106 (Kant)].

In the instant case, the investigating officer resorted to unusual procedure in getting medical board constituted and obtaining an opinion that injury to victim’s head was self-inflicted and was not due to fire-arm. The charge– sheet was hurriedly submitted under sections 323, 504 and 506, Indian Penal Code, 1860 on account of there

Page 9 of 34 [s 156] Police officer’s power to investigate cognizable case.— being possibility of extraneous pressures in such case, the Court ordered an independent enquiry [Savita Devi v State of UP, 2009 Cr LJ (NOC) 1014 (All)].

An error or illegality in investigation can have no impact on the trial unless miscarriage of justice has been brought out [UOI v Prakash P Hinduja, AIR 2003 SC 2612 : 2003 Cr LJ 3117 : 2003 (6) SCC 195 : 2003 (3) Crimes 142 (SC)]. A faulty investigation said not to have been conducted in the manner stated by the investigating officer was not accepted [Lakhwinder Singh v State of Punjab, AIR 2003 SC 2577 : 2003 Cr LJ 3058 : (2003) 2 Crimes 97 (SC)].

The investigating officer reached the spot at 10 p.m., did not carry investigation because of darkness. It is unbelievable that the Investigating Officer who was going for investigation of a murder case at night would not carry a torch with him or try to procure some other source of light to carry on with the investigation, he could have made search for the accused persons with the help of headlights of the jeep. He was silent as to time when a copy of FIR was filed with the Magistrate and when dead body was received and when sent to hospital for post-mortem. The accused was held entitled to acquittal [Jandel v State of MP, AIR 2003 SC 3991 : 2003 Cr LJ 3528 : 2003 (9) SCC 110 : 2003 (3) Crimes 1 (SC)].

Where the investigation is conducted by ASI which is not competent to investigate a murder case it was held that in the absence of miscarriage of justice, trial would not be vitiated [Murlidhar Singh v State of Bihar, 2008 (1) Crimes 88 (Pat)].

While investigating a cognizable offence and presenting a charge-sheet for it, the police are not debarred from investigating any non-cognizable offence arising out of the same facts including those in charge-sheet. The High Court was wrong in quashing the charge under section 494 of Indian Penal Code, 1860, on the ground that trial Court could not take cognizance of the offence unless the complaint was filed personally by the wife or any other near relation contemplated by Clause (c) of Proviso to section 198(1). [Suresh Kumar v State of Rajasthan, 1998 Cr LJ 601 : 1997 (3) Raj lW 1535 : 1997 CrLR (Raj) 749 (Raj)].

Where the blood stained soil was taken into his possession by the IO, but was not sent for chemical examination, it was held that the lapse on the part of IO was not found fatal as the testimony of prosecution witnesses was reliable and cogent [State of Uttrakhand v Sohan Singh, 2007 Cr LJ 3703 (p 3705) (Uttr)].

In case of defective investigation, the Court has to circumspect in evaluating the evidence. But it would not be right in acquitting an accused person solely on account of defect [Poonam Singh v State of Uttrakhand, 2008 Cr LJ 2693 (p 2696) (Uttra)].

Inept or deficient investigation could never be sufficient to reject the evidence of witnesses. Their credibility has to be tested on other circumstances, like, the chance of their presence at the place of occurrence, the credibility of their claim of having seen the occurrence and intrinsic value of their evidence when they claim to be eyewitness to the occurrence. In the above connection, it has also to be seen by the Court as to whether their evidence was inspiring confidence and was free from material infirmities making the same creditworthy, whether they had stood test of cross-examination and had come out of it unscathed. If the above yardsticks are applied in deciding the credibility of the witnesses in the light of the attack against them set up by the defence to question their credibility, which may be on many counts, and the Court finds that the circumstances, like, the witness being inimical appears of no consequence, for, there was no reason for the witness to falsely implicate the accused, then the evidence of witnesses may be said to be creditworthy. But if it is shown from the evidence that there was quite some lapse of time when no one including the witnesses, was coming forward to narrate the incident to the police in spite of having such opportunities or occasions and were not naming the accused persons, then a very serious defect appears in the prosecution case, which may discredit the whole prosecution narration. [Mritunjay Mani Mishra v State of Bihar, 2011 Cr LJ 1966 (p 1975) (Pat)]. [s 156.12] Failure of police to investigate—Writ petition for direction to CBI to investigate— When the information is laid with the police, but no action is taken, the complainant can under section 190 read

Page 10 of 34 [s 156] Police officer’s power to investigate cognizable case.— with section 200 of the Code lay the complaint before the Magistrate and the Magistrate is required to inquire into the complaint as provided in chapter XV of the Code. If the Magistrate after recording evidence finds a prima facie case, instead of issuing process to the accused he is empowered to direct the police to investigate into offence under chapter XII of the Code and to submit a report. In case he finds that the complaint/evidence discloses an offence, he is empowered to take cognizance of the offence. Writ petition by complainant for direction to CBI to investigate is not tenable [Hari Singh v State of UP, 2006 Cr LJ 3283 (p 3284) (SC) : AIR 2006 SC 2464 : (2006) 5 SCC 733 : 2006 (3) Crimes 109 ; Sakiri Vasu v State of UP, AIR 2008 SC 907 : (2008) 2 SCC 409 ].

The CBI Manual is subject to provisions of the Code of Criminal Procedure. In case of conflict, Code of Criminal Procedure shall prevail. Magistrate alone shall have final say in the matter [MC Mehta v UOI, 2007 (1) Crimes 375 (SC)].

An FIR was lodged against the husband and in-laws alleging that they have subjected her to physical and mental cruelty. Petitioners applied for CBI inquiry and alleged lackadaisical approach by the State police to defeat petitioner’s case. State denied the same in the counter affidavit. The Apex Court directed the State to constitute a special team of police officers headed not below the rank of DIG of Police to investigate the matter. [Sujatha Ravi Kiran v State of Kerala, AIR 2016 SC 2277 : 2016 (7) SCC 597 ]. [s 156.13] Interference in investigation.— The power of investigation is a statutory one and ordinarily and save and except some exceptional situations, no interference therewith by any Court is permissible [Kishan Lal v Dharmendra Bafna, 2009 Cr LJ 3721 (3723) (SC) : AIR 2009 SC 2932 : 2009 (3) Crimes 356 : (2009) 3 SCC (Cri) 611 : (2009) 7 SCC 685 ]. Court cannot interfere with investigation by police particularly when there is nothing on record to indicate that the Investigating Officer is not functioning in an honest manner. [Harkishan v Senior Superintendent of Police, 2000 Cr LJ 4688 : 2000 All LJ 2522 : (2000) 28 All Cr R 1820 (All-DB)]. While investigation is in progress, the Court cannot direct the investigating agency to submit report in accordance with the Courts own view [MC Abraham v State, (2003) 2 SCC 649 ]. Any judicial Magistrate, before taking cognizance of the offence can order investigation under section 156(3). For the purpose of enabling the police to start investigation, it is open to the Magistrate to direct the Police to register the FIR [Mohd Yousuf v Afaq Jahan, 2006 Cr LJ 788 (p 790 (SC) : AIR 2006 SC 705 : (2006) 1 Crimes 81 : (2006) 1 Crimes 81 ].

The investigation of an offence is the field exclusively reserved for the Police Officers whose powers in that field are unfettered so long as the power to investigate into the cognizable offences is legitimately exercised in strict compliance with the provisions under chapter XII of the Code. However, we may hasten to add that unfettered discretion does not mean any unaccountable or unlimited discretion and act according to one’s own choice. The power to investigate must be exercised strictly on the condition of which that power is granted by the Code itself [Divine Retreat Centre v State of Kerala, 2008 Cr LJ 1891 (p 1900) (SC) : AIR 2008 SC 1614 : (2008) 3 SCC 542 : (2008) 2 SCC (Cri) 9 ].

The High Court in exercise of its inherent jurisdiction cannot change the Investigating Officer in the midstream and appoint any agency of its own choice to investigate into a crime or whatsoever basis and more particularly on the basis of complaints or anonymous petitions addressed to a named Judge. Such communications cannot be converted into suo motu proceedings for setting the law in motion. Neither the accused nor the complainant or informant are entitled to choose their own investigating agency to investigate a crime in which they may be interested [Divine Retreat Centre v State of Kerala, 2008 Cr LJ 1891 (p 1900) (SC) : AIR 2008 SC 1614 : (2008) 3 SCC 542 : (2008) 2 SCC (Cri) 9 ].

On the information received or otherwise, can the High Court set the law in motion against the named and unnamed individuals based on the information received by it without recording the reasons that the information received by it prima facie disclosed the commission of a cognizable offence? Setting Criminal Law in motion is fraught with serious consequences, which cannot lightly be undertaken by the High Court even in exercise of its jurisdiction under Article 226 of the Constitution of India [Divine Retreat Centre v State of Kerala, 2008 Cr LJ 1891 (1900) (SC) : AIR 2008 SC 1614 : (2008) 3 SCC 542 : (2008) 2 SCC (Cri) 9 ].

Page 11 of 34 [s 156] Police officer’s power to investigate cognizable case.— The Investigating Officer is empowered to collect evidence/material during investigation and arrive at a conclusion independently. He can also seek legal opinion which may assist him in arriving at the conclusion. The High Court, however, cannot give any direction to the Investigating Officer to seek legal opinion for filing the charge-sheet or the final report [Ram Chandra Balani v State of UP, 2010 Cr LJ (NOC) 119 (All)]. [s 156.14] Transfer of case from local police to CBCID without disclosing justifiable reasons.— In cases of unnatural death, the Court may direct investigation of the case by CBI. [Kishwar Jahan v State of WB, 2008 Cr LJ 1766 (p 1768) (Del)]. Order of transfer of investigation in clear violation of the decisions of the High Court laying down the conditions when an order entrusting investigation of criminal case to CBCID may be passed and also without disclosing the justifiable reasons for transferring the case was not approved by the High Court. [Sandeep Kumar Yadav v State of UP, 2006 Cr LJ 3316 (3318) (All) : 2006 (4) All LJ 556 : 2006 (3) All CrC 676].

Merely because the parties are not cooperating or the parties have no faith in local police, it cannot be a ground for transferring the case to CID [Umed Singh v State of MP, 2007 Cr LJ (NOC) 680 (MP)].

There was offence of cheating, criminal misappropriation etc that had taken place in several states. Investigation Officer attached to one Police Station in State may feel handicapped in making investigation. Handing over investigation to state CB, CID, was held proper [Asit Bhattacharjee v Hanuman Prasad Ojha, 2007 Cr LJ 3181 (SC) : AIR 2007 SC 1925 : (2007) 5 SCC 786 ].

In a gang-rape case where the petitioner had not approached the avenues of the grievance ordinarily available to her, the prayer for investigation of the case by CBI was rejected [Sajina T v State of Kerala, 2008 Cr LJ 2712 (p 2715) (Ker) : 2008 (2) Ker LJ 3 : 2008 (3) AICLR 796].

Where interim report of fake encounter by police as well as action taken report were filed by State and there was no mention in these reports that investigation was not proceeding towards correct direction. Supreme Court declined to hand over investigation to CBI [Rubabbuddin Sheikh v State of Gujarat, 2007 Cr LJ 3206 (SC) : AIR 2007 SC 1914 : (2007) 4 SCC 378 : (2007) 2 SCC (Cri) 290 ].

A writ Court would not ordinarily interfere with the functioning of an investigating agency. It may do so only in exceptional circumstances [Shashikant v CBI, 2007 Cr LJ 995 (1000) : AIR 2007 SC 351 : (2007) 1 SCC 630 : 2006 (4) Crimes 318 : (2007) 1 SCC (Cri) 406 ].

Order passed by State Government for transfer of investigation to CBCID, in absence of any opinion, to propitiate two MLAs of Samajwadi Party, quashed [Hazi Mohd Harun v State of UP, 2007 Cr LJ NOC 63 : 2006 (6) ALJ 527 (All-DB)].

Where the order to transfer investigation from civil police to CB, CID was passed at the instance of Member of Legislature Council it was held that as no good reasons were given in the counter affidavit as to why such transfer of investigation was justified, the order was liable to be quashed [Saurabh Sahai v State of UP, 2010 Cr LJ (NOC) 280 (All)]. [s 156.15] Fairness in drawing sampleThe process of drawing sample must be fair, so as to be consistent with the right of appellants under Article 21 of the Constitution of India. The Apex Court therefore, modified the direction for furnishing voice sample to ensure the fairness of process. [Sudhir Chaudhary v State (NCT of Delhi), AIR 2016 SC 3772 : 2016 (8) SCC 307 ]. [s 156.16] Bona fides of investigation.— It is in the evidence of P.S.I. Shri Parmar that the moment he got an opportunity in the hospital to record the statement of “R” he recorded the same at about 12.30 p.m. because prior thereto the doctor attending upon the

Page 12 of 34 [s 156] Police officer’s power to investigate cognizable case.— injured had not permitted him to interrogate the injured and that the injured “B” was unconscious while the injured “R” was also being given preliminary treatment and only when he was removed to the ward that P.S.I. Shri Paramar, got an opportunity to interrogate him and immediately recorded his statement are in FIR which subsequently has become a dying declaration. The inquest panchanama was made and thereafter in the evening statement of witnesses were recorded. Under these circumstances, it is difficult to appreciate how it can be alleged that the police investigation was not a bona fide one. It is of course true that the High Court as noted in the impugned judgment has observed that PSI Shri Parmar had miserably failed to come up to an ideal standard to investigation. But in Court’s view the said observation is not fully justified. It may be that Shri Parmar could have acted more promptly but that would not mean that he was guilty of any mala fide intentions. Once the injured eye-witnesses and other eye-witnesses have been found to be reliable and especially when the dying declaration clearly implicates accused and other persons. It is not possible to countenance the submission of learned counsel for the appellants that PSI Shri Parmar was waiting to rope in innocent accused and was in search of their names. The submissions in support of these two points, therefore are not of any avail to learned counsel for the appellants [Ramanbhai Naranbhai Patel v State of Gujarat, 1999 Cr LJ 5013 (SC)].

When the case registered on the basis of private complaint is forwarded to vigilance special cell for investigation under section 156(3) then Vigilance cell is not required to conduct preliminary enquiry [P Raghnunathan v State of Kerala, 2002 Cr LJ 337 : 2002 (2) Crimes 114 : 2001 (4) Rec Cr R 650 (Ker)].

Order of Metropolitan Magistrate to transfer further investigation regarding cognizable offence to other agency without affording opportunity to local police is without jurisdiction [Ajay Raj Sharma v State, 2001 Cr LJ 616 : 2001 (2) Rec Cr R 102 : 2000 (88) Del LT 471 (Del)].

Where complaint alleged production of copy of forged document before Court, the Magistrate is not bound to send the same for investigation on an application filed by complainant [Dilip Kumar J Jain v State of Maharashtra, 2001 Cr LJ 7 : 2001 (2) Bank Cas 255 : 2000 (3) Bom LR 482 (Bom)].

Since the order under section 156(3) of Criminal Procedure Code passed by Magistrate is a judicial order therefore it is amenable to revisional jurisdiction [Ajya Malviya v State of UP, 2001 Cr LJ 313 : 2000 All LJ 2730 : 2001 (1) Rec Cr R 83 (All)]. [s 156.17] Sections 156, 169, 173 and 190.— There is no obligation on the Magistrate to accept report of police [Srinibas Balabantaray, 69 (1990) Cut LT 175]. [s 156.18] Investigation—Interference and strictures.— A Court of law should not resort to passing strictures against any Govt. official being moved by sentiments. But when a particular remark is warranted by evidence on record, which forms basis of particular finding doubting integrity of I.O. is well warranted by circumstances. Nothing wrong by trial Court to direct departmental enquiry Direction is not a punishment. [SN Pandey v State of Bihar, 2002 (1) East Cr C 182 (Pat)].

High Court should not make deprecatory remarks against investigating officers unless it is absolutely necessary. Where no particular lacuna or omission is referred to be remarks are unnecessary. [State of WB v Mir Mohammad Omar, AIR 2000 SC 2988 : 2000 Cr LJ 4047 , 4053, para 41 : 2004 (4) Crimes 1 (SC)].

In an Allahabad case offences of cruelty in marriage and intimidation were committed at one place but the FIR was lodged at another place. It was held that investigation at the other place was not barred. [Satvinder Kaur v State (Govt of NCT of Delhi), AIR 1999 SC 3596 : 1999 Cr LJ 4566 : (1999) 8 SCC 728 : 1999 (4) Crimes 157 ; Girish Chander Saxena v State of UP, 2000 Cr LJ 4684 : 2000 All LJ 2553 : (2000) 41 All Cr C 503 (All-DB)].

The Magisterial power under section 156(3) cannot be stretched beyond directing the officer-in-charge of a police station to conduct the investigation. The Magistrate has no power to direct the CBI to do so. [CBI v State, AIR 2001 SC 668 : (2001) 3 SCC 333 : 2000 Cr LJ 968 : 2001 (1) Crimes 191 ]. The Magistrate can however

Page 13 of 34 [s 156] Police officer’s power to investigate cognizable case.— direct further investigation by CBI where investigation was held by the same agency [CBI v M Thomas, 2001 Cr LJ 3167 : 2001 (3) Cur Cr R 381 : 2001 (1) Ker LJ 928 : 2001 (2) Ker LT 349 : 2001 (3) Rec Cr R 376 (Kar)].

Order passed by Magistrate on reference for investigation by Police Commissioner is illegal. [Pushparaj v Subbanna, AIR 2000 Kant HCR 1947 : 2001 Cr LJ 3601 (Kant)].

Before passing the order recalling investigation from CBCID to local police, accused is not required to be heard. [Jai Prakash S Tomar v State of UP, 2001 Cr LJ 3896 : 2001 All LJ 1762 : (2001) 42 All Cr C 467 (All)].

There is no prohibition to recall or rescind the order transferring investigation from local police to CBCID and to entrust investigation back to local police. [Jai Prakash S Tomar v State of UP, 2001 Cr LJ 3896 : 2001 All LJ 1762 : (2001) 42 All Cr C 467 (All)].

Where local police involved in “lathi” charge on Advocate then investigation carried out by them would lack credibility and as such direction issued to C.B.I. to hold enquiry. [Advocates Associations, High Court, All v State of UP, 2001 Cr LJ 671 : 2000 All LJ 3075 : (2001) 43 All Cr C 567 (All)].

Mere fact that the investigating officer committed irregularity or illegality during the course of the investigation would not and does not cast doubt on the prosecution case nor trustworthy and reliable evidence can be cast aside to record acquittal on that account [State of Rajasthan v Kishore, AIR 1996 SC 3035 : 1996 Cr LJ 2003 : 1996 (8) SCC 217 : 1996 (1) Crimes 156 ].

Investigation conducted by same police officer who lodged FIR is not barred [Pandurang v State of Karnataka, 2008 Cr LJ 2507 (p 2511) (Kant) : 2008 (5) Kant LJ 34 : 2008 AIR Kar R 266 : 2008 (3) AICLR 745]. [s 156.19] Investigation by women police officers.— In a case of molestation of girls in school, the High Court directed investigation by a team under a woman police officer, as it may not be possible for girl students to relate to and interact with male investigating team [In the matter relating to assault on school girl Julian Sharma v State of Bihar, 2003 Cr LJ NOC 95 : 2002 (2) BLJ 297 (Pat)]. [s 156.20] Deployment of woman constable in Police station.— The Apex Court prescribed the need of women constables in police station for the purpose of investigation or interrogation of women taken into custody of police in the following words: “As regards deployment of women constables all that we need to say is that the States concerned would consider the desirability of posting women constables in the police stations wherever it is found that over a period of past two years women were detained in connection with any criminal case or investigation. Needless to say that in case women constables are needed in such police stations for interrogation or detention, the State shall provide such infrastructural facilities for such constables as are required.” [Dalip K Basu v State of WB, AIR 2015 SC 2887 : 2015 (8) SCC 744 ]. [s 156.21] Reopening of investigation.— When a perusal of the record discloses that the Magistrate has not accepted the final report and further the police re-opened the investigation only after obtaining permission from the Magistrate, it cannot be said that the police have no jurisdiction to reopen the investigation. [T Balaji Rao v State of AP, 2006 Cr LJ 3799 (p 3806) (AP)]. [s 156.22] Further investigation.— The Apex Court in a complaint of corruption against a public servant held that orders directing further investigation under section 156 (3) of the Code cannot be passed in absence of valid reason. [L Narayan Swami v State of Karnataka, AIR 2016 SC 4125 : 2016 (5) SCC 598 ].

Where sheet of report card was tampered with and some pages were missing re-investigation under these

Page 14 of 34 [s 156] Police officer’s power to investigate cognizable case.— circumstances it was directed to be conducted by anti-forgery section of crime branch [MP Singh Rathor v State, 2006 Cr LJ 1366 (Del) : (2006) 127 DLT 317 : 2006 (3) OCR 284 ]. [s 156.23] Dissatisfaction with investigation.— Informant filed protest petition against investigating officer for not recording correct statement of prosecution witnesses. Investigation becomes doubtful in the circumstances. Advantage of the same should go to the accused [Jagdish Barhi v State of Bihar, 1990 Cr LJ 1443 (Patna-DB)].

Where a helpless widow complained about improper investigation on her complaint, it would be necessary to inform her that a proper investigation had been made and merely because the complainant happens to be a helpless poor woman, the police authorities should not shirk from their duty [Saroja v State of TN, 1991 Cr LJ 755 : 1990 Mad LW (Cri) 335 (Mad)].

In a case of the spouse’s murder there was no witness except that of parents of the deceased to show suicide. Body of the deceased was found lying on a bench by a police officer. No “observation Mahazar” was prepared to that effect. Blood stained clothes found on the dead body were not sent for chemical examination. Stick used allegedly by the accused for killing the deceased, was also not sent for chemical examination. The High Court observed that investigating officers had handled the case in a callous manner [Murugan v The State, (1991) Cr LJ 1680 (Mad-DB)].

Investigation into offence by police officer who filed FIR for an offence under section 13 of Prevention of Corruption Act is unjustified. [Madhu Laxhmana Rao v State of AP, 2001 Cr LJ (NOC) 75 : 2000 (4) Andh LD 663 (AP)].

The defective investigation cannot be made a basis for acquitting the accused despite such defects and failures of the investigation a case is made out against all the accused or anyone of them; it is unfortunate that no action can be taken against the IO at this stage who, in all probabilities must have retired by now. [State of UP v Hari Mohan, AIR 2001 SC 142 : 2001 Cr LJ 170 : (2000) 8 SCC 598 : 2000 (4) Crimes 234 ].

Defective investigation would not lead to total rejection of prosecution case [Rotash v State of Rajasthan, 2007 Cr LJ 758 (SC)]. [s 156.24] Investigation—Whether investigation is proper—Task of Court.— It is the task of the Court and it was the Court who would have decided the question of the fairness of the investigation. The High Court wanted to get the assistance of DGP level police officer to advise it on the correctness or otherwise of the investigation. Such course was not necessary unless the High Court had examined the charge-sheet which was filed and recorded its findings that the investigation was not properly conducted or it required further investigation under section 173(8), Code of Criminal Procedure, 1973. The High Court had not even looked into the charge-sheet nor had it examined the same. [Virendra Prasad Singh v Rajesh Bhardwaj, 2010 Cr LJ 4275 (4280, 4281) : (2010) 9 SCC 171 : (2010) 4 Crimes 1 ].

In appropriate cases, the Courts may monitor an investigation into an offence when it is satisfied that either the investigation is not being proceeded with or is being influenced by interested persons. [Babubhai Jamnadas Patel v State of Gujarat, 2010 Cr LJ 2249 (p 2256) (SC)]. [s 156.25] Offences under Sections 325, 308 IPC.— There is no fetter on the investigating officer converting the case under sections 325, 308 Indian Penal Code, 1860 on the basis of injury report, if in his opinion the circumstances of the case make out such allegations which constitute those offences even if he does not examine the medical officer [Dharam Pal v State of UP, 2006 Cr LJ 1421 (pp 1422, 1423) (All) : (2006) 54 All CrC 811 : 2006 (2) All LJ 94]. [s 156.26] NDPS Act.— Plea was raised in a case that there was defect in investigation. Enforcement officers of Central Narcotics Bureau had seized contraband opium from the accused. Thereafter crime report was registered and

Page 15 of 34 [s 156] Police officer’s power to investigate cognizable case.— investigation was also carried out by them. It was held that the Enforcement officer being complainant, investigation carried out by him was proper and trial based thereon was not vitiated [Bhanwar Singh v UOI, 2006 Cr LJ 3585 (Raj) : 2006 CrLR (Raj) 1101 : 2006 (3) Raj LW 2459 ]. [s 156.27] Choice of investigation.— Merely on the basis of the allegation that the local police would not investigate the case properly, prayer for handing over investigation to some other agency could not be sustained. [Atique Ahmad v State of UP, 2003 Cr LJ 197 : 2002 All LJ 2554 : 2002 (3) All Cr R 2715 (All)]. [s 156.28] Investigation—Accused moving High Court under Section 482, CrPC.— An application under section 482, Code of Criminal Procedure, 1973 on the plea that the investigation was not proper at the instance of the accused who did not choose to even appear before the Sessions Judge before whom the matter was pending was held not permissible. [Virendra Prasad Singh v Rajesh Bhardwaj, 2010 Cr LJ 4275 (p 4281) : (2010) 9 SCC 171 : (2010) 4 Crimes 1 ].

In offences under SC/ST Act, investigation cannot be quashed merely because it was conducted by Police Officer below the rank of Deputy Superintendent of Police. What is required is that there should be no miscarriage of justice as a result of such investigation. [Virendr Kumar Bind v State of UP, 2010 Cr LJ (NOC) 773 (All)]. [s 156.29] Immoral traffic.— “Special police officer” and his assistants are the only persons competent to investigate the offences under the Suppression of Immoral Traffic in Women and Girls Act, 1956 [Delhi Administration v Ram Singh, AIR 1962 SC 63 : 1962 (1) Cr LJ 106 : 1962 (2) SCR 694 ; Re : Kuppammal, AIR 1959 Mad 389 : 1959 Cr LJ 1085 : 72 Mad LW 66 : 1958 (2) Mad LJ 606; State v Mehra, AIR 1962 Punj 91 : 1962 (1) Cr LJ 361 : 64 Punj LR 95 : ILR (1961) 1 Punj 51 ]. In an offence under section 9, suppression of Immoral Traffic in Women and Girls Act, 1956, Assistant Commission of Police being called at the place of incident recorded the statement of other witnesses and also verified statement of complainant recorded by Sub-Inspector of Police. FIR was recorded on the basis of material collected and verified by Assistant Commissioner of Police and further investigation was carried on. It was held that investigation could not be said to be contrary to provisions of the Act [Jagbir Walia v Delhi Administration, (1998) 8 SCC 537 ]. When cognizance is taken by the Magistrate on report by an unauthorised police officer, he need only stay the trial and direct investigation by an authorised police officer [Kshitish, AIR 1961 C 189].

Power of the Special Judge to take cognizance is wider and is unknown to the Code [Parasnath Pande v State, AIR 1962 Bom 205 : 1962 (2) Cr LJ 326 : 64 Bom LR 188 : 1962 Nag LJ 654 ]. [s 156.30] Confidentiality of investigation.— The sanctity attached to confidentiality of investigation is imperative and the same cannot be allowed to be brought into public domain because the very purpose of investigation would then be compromised. The conversation which takes place between the Investigating Officer and the accused is privileged and classified and cannot be allowed to become common place. [State of Rajasthan v Mangal Singh, AIR 2017 SC 68 (FB)]. [s 156.31] Investigation: When shall not be ordered.— Incriminating material namely, loose papers, electronic data was seized in raids conducted on industries. It was not maintained in regular course of business, hence the Apex Court held it to be inadmissible in evidence. Consequently, investigation cannot be ordered. The Apex Court held that “we are constrained to observe that the court has to be on guard while ordering investigation against important constitutional functionary, officers or any person in the absence of some cogent legally cognizable material. When the material on the basis of which the investigation is sought is itself irrelevant to constitute evidence and not admissible in evidence, we have apprehension whether it would be safe to even initiate investigation. In case we do so, the investigation can be ordered as against any person whosoever high in integrity on the basis of irrelevant or inadmissible entry falsely made by any unscrupulous person or business house that too not kept in regular book of accounts but on random papers at any given point of time. There has to be some relevant and admissible evidence and some cogent reason, which is prima facie reliable and that too, supported by some other circumstances pointing out that the particular third person against whom the allegations have been levelled was in fact involved in the manner or he has done some act during that period, which may have co-relations with the random entries. In case we do not insist for all these, the process of law can be abused against all and sundry very easily to

Page 16 of 34 [s 156] Police officer’s power to investigate cognizable case.— achieve ulterior goals and then no democracy can survive in case investigations are lightly set in motion against important constitutional functionaries on the basis of fictitious entries, in absence of cogent and admissible material on record, least liberty of an individual be compromised unnecessarily.” [Common Cause (A Registered Society) v UOI, AIR 2017 SC 540 : 2017 (1) Scale 573 ]. [s 156.32] Scientific tests to extract information.— For the purpose of police reforms the scientific investigation is a need of the hour. [Rakesh Kumar Paul v State of Assam, AIR 2017 SC 3948 ].

No individual should be forcibly subjected to any of such techniques, whether in the context of investigation in criminal cases or otherwise. Doing so would amount to an unwarranted intrusion into personal liberty. Even when the subject has given consent to undergo any of these tests, the test results by themselves cannot be admitted as evidence because the subject does not exercise conscious control over the responses during the administration of the test. However, any information or material that is subsequently discovered with the help of voluntary administered test results can be admitted, in accordance with section 27 of the Indian Evidence Act, 1872.

(i)

No Lie Detector Tests should be administered except on the basis of consent of the accused. An option should be given to the accused whether he wishes to avail such test.

(ii) If the accused volunteers for a Lie Detector Test, he should be given access to a lawyer and the physical, emotional and legal implication of such a test should be explained to him by the police and his lawyer. (iii) The consent should be recorded before a Judicial Magistrate. (iv) During the hearing before the Magistrate, the person alleged to have agreed should be duly represented by a lawyer. (v) At the hearing, the person in question should also be told in clear terms that the statement that is made shall not be a “confessional” statement to the Magistrate but will have the status of a statement made to the police. (vi) The Magistrate shall consider all factors relating to the detention including the length of detention and the nature of the interrogation. (vii) The actual recording of the Lie Detector Test shall be done by an independent agency (such as a hospital) and conducted in the presence of a lawyer. (viii) A full medical and factual narration of the manner of the information received must be taken on record [Selvi v State of Karnataka, AIR 2010 SC 1974 : (2010) 7 SCC 263 ]. [s 156.33] Sub-section (1).— The latter part enables the police to make investigation in respect of cognizable offences committed beyond their local jurisdiction. The words do not limit the application of the section to offences but may extend to a matter specified in section 55 [now section 41(2)] [Bhajan, 1893 AWN 124]. A CID inspector’s area is the entire province [Nilkantha, 35 M 247, 272; see Textile Traders Syndicate Ltd v State of UP, AIR 1959 All 337 : 1959 Cr LJ 668 : 1959 All LJ 245 : 1958 All Cr R 557; see section 36 supra].

Every police officer attached to CID/COD/Corpse of Detective of the rank of Sub-Inspector and above is a police officer in charge of police station within the meaning of section 156, Code of Criminal Procedure, 1973 [Narasimhaiah v State of Karnataka, 2002 Cr LJ 4795 (Kant) : 2002 (3) Crimes 704 : 2002 (2) Kant LJ 408 ].

There is no bar against registration of a criminal case or investigation by the police station agency or

Page 17 of 34 [s 156] Police officer’s power to investigate cognizable case.— submission of a report by the police on completion of investigation as contemplated by section 173, Code of Criminal Procedure, 1973. [State of Karnataka v Pastor P Raju, 2006 Cr LJ 4045 (4047) (SC) : AIR 2006 SC 2825 : 2006 (3) Crimes 203 : (2006) 3 SCC (Cr) 179].

The sanction under section 197 is necessary to enable the Court to take cognizance, but no such sanction is required for police investigation of any cognizable offence [Khwaja Nazir, 49 Cal WN 191, 195 PC : 71 IA 203; Hamid, AIR 1945 C 385]. After submitting the chalan to Court after investigation, the police have power to make further investigation without the Court’s order [Mahomed Niwas v Emperor, (1947) 48 Cr LJ 774 : 231 IC 354 (Lah)]. See now an express provision made in this regard in section 173(8). [s 156.34] Protest petition.— Where police files report in favour of accused, the complainant has right to file protest petition [Lali Sugnadhi v Mahendra Kumar Sugandhi, 2010 Cr LJ (NOC) 263 (MP)]. [s 156.35] Sub-section (2).— There may be an investigation taking the matter to be a cognizable offence although ultimately charges of noncognizable offences are laid [Mamsa, AIR 1937 R 206; Samarth, 1955 BLJR 608 ]. While investigating a cognizable offence the police are not debarred from investigating any non-cognizable offence arising out of the same fact and including it in the report under section 173 [Ram Krishna Dalmia v State, AIR 1958 Punj 172 : 1958 Cr LJ 683 : ILR (1957) Punj 2021 ]. The police can include that non-cognizable offence in the chargesheet which he presents for a cognizable offence. The position is clear that such reports if regarded as made under section 190(1)(b) must attract the provisions of section 238 [Pravin Chandra Mody v State of AP, AIR 1965 SC 1185 : 1965 (2) Cr LJ 250 (SC) [Ram Krishna Dalmia v State, supra approved)]. See now section 155(4).

In every civilised society the police force is invested with the powers of investigation of the crime to secure punishment for the criminal and it is in the interest of the society that the investigating agency must act honestly and fairly and not resort to fabricating false evidence or creating false clues only with a view to secure conviction because such acts shake the confidence of the common man not only in the investigating agency but in the ultimate analysis in the system of dispensation of criminal justice [Rampal Pithwa Rahidass v State of Maharashtra, 1994 Cr LJ 2320 : 1994 SCC (Cri) 851 : 1994 Supp (2) SCC 73 : 1994 (1) Crimes 1017 ].

Irregularity in investigation and arrest does not vitiate proceedings on trial unless miscarriage of justice has been caused thereby [Rustom, AIR 1984 B 163; Manbodh v The State, AIR 1955 Nag 97 : 1955 Cr LJ 728 : 1955 Nag LJ 278 : ILR (1955) Nag 23 ; Rishbud HN and Inder Singh v State of Delhi, AIR 1955 SC 196 : 1955 Cr LJ 526 : 1955 SCR 1150 sup; Khandu Sonu Dhobi v State of Maharashtra, AIR 1972 SC 958 : 1972 Cr LJ 593 : (1972) SC 786 ; State v Maganlal Chunilal Bogawat, AIR 1956 Bom 354 : 1956 Cr LJ 701 ; Kutbuddin v State of Rajasthan, AIR 1967 Raj 257 : 1967 Cr LJ 1700 : 1967 Raj LW 99 ]. Any irregularity or even an illegality during investigations should not be treated as a ground to reject the prosecution case [State of Rajasthan v Kishore, AIR 1996 SC 3035 : 1996 Cr LJ 2003 : 1996 (1) Crimes 156 ; Prakash v State of Karnataka, 2005 Cr LJ 1106 (Kant); Dharmendra Singh v State of Gujarat, 2002 Cr LJ 2631 (SC) : AIR 2002 SC 1937 : 2002 (2) Crimes 294 : (2003) 4 SCC 679 . Investigation carried out by Head Constable who was officer-in-charge of the police station would not be discarded [State of Karnataka v Chikkibala Naika, 2003 Cr LJ (NOC) 76 (Kant) : 2002 (6) Kant LJ 165 : 2003 (1) All CrLR 722, following Leela Ram v State of Haryana, AIR 1999 SC 3717 : 1999 (9) SCC 525 : 1999 (3) Crimes 233 ].

If before taking up further investigation an opinion has already been formed regarding the guilt of the accused and, that too, at a stage when the commission of the offence itself is yet to be proved, it is obvious that the investigation cannot and will not be fair [K Chandrashekhar v State of Kerala, AIR 1998 SC 2001 : 1998 Cr LJ 2897 : 1998 (5) SCC 223 : 1998 (2) Crimes 300 ].

It is in the evidence of P.S.I. Shri Parmar that the moment he got an opportunity in the hospital to record the statement of “R” he recorded the same at about 12.30 p.m. because prior thereto the doctor attending upon the injured had not permitted him to interrogate the injured and that the injured “B” was unconscious while the injured “R” was also being given preliminary treatment and only when he was removed to the ward that P.S.I.

Page 18 of 34 [s 156] Police officer’s power to investigate cognizable case.— Shri Parmar, got an opportunity to interrogate him and immediately recorded his statement are in FIR which subsequently became a dying declaration. The inquest panchanama was made and thereafter in the evening statement of witnesses were recorded. Under these circumstances, it is difficult to appreciate how it can be alleged that the police investigation was not a bona fide one. It is of course true that the High Court as noted in the impugned judgment has observed that P.S.I. Shri Parmar had miserably failed to come up to an ideal standard of investigation. But in Court’s view the said observation is not fully justified. It may be that Shri Parmar could have acted more promptly but that would not mean that he was guilty of any mala fide intentions. Once the injured eye-witnesses and other eye-witnesses have been found to be reliable and especially when the dying declaration clearly implicate accused and other persons. It is not possible to countenance the submission of learned counsel for the appellants that P.S.I. Shri Parmar was waiting to rope in innocent accused and was in search of their names. The submissions in support of these two points, therefore are not of any avail to learned counsel for the appellants [Ramanbhai Naranbhai Patel v State of Gujarat, 1999 Cr LJ 5013 (SC)]. That the offence was committed outside the local areas of the investigating police officer is no ground to discharge of the accused [The State v Pukhia, AIR 1963 Raj 48 : 1963 (1) Cr LJ 318 : 1962 Raj LW 539 : ILR (1962) 12 Raj 753 ]. Sub-section (2) cannot cure irregularity in investigation under section 5A Prevention of Corruption Act [Rishbud, supra].

Police Officer-in-charge of a police station in whose jurisdiction the offence was committed can investigate. He is protected by section 36 and section 156(2) [Soni Natverlal Prabhudas v State of Gujarat, 1983 Cr LJ 1124 : 183 (2) Guj LR 945 : 1983 CrLR (Guj) 314 (Guj)].

When the police officer empowered to investigate the case at the relevant time, before order of transfer was communicated to him, had already filed the charge-sheet, it was held that there was no lack of jurisdiction vested in him to investigate. Naushad Ali Siddequi v State of UP, 2006 Cr LJ (NOC) 425 (All) : 2006 (4) ALJ 489 (All) : 2006 (2) All CrC 337.

Financial crunch of any State treasury is no justification for allowing a private party to supply funds to the police for conducting such investigation. In constitutional scheme, the police and other statutory investigating agency cannot be allowed to be hackneyed by those who can afford it. All complaints shall be investigated with equal alacrity and with equal fairness irrespective of the financial capacity of the person lodging the complaint. The Code does not recognise private investigating agency. If any person is interested in hiring any such private agency he may do so at his own risk and cost, but such investigation would not be regarded as investigation made under law. Any evidence collected in such private investigation and any conclusion reached by such investigators cannot be presented by Public Prosecutor in any trial. Of course it may be possible for the defence to present such evidence [Navinchandra N Majithia v State of Meghalaya, AIR 2000 SC 3275 : 2000 Cr LJ 4600 : (2000) 8 SCC 323 : 2000 (4) Crimes 118 ].

Courts should bear in mind the time constraints of the police officers in the present system, the ill-equipped machinery they have to cope with, and the traditional apathy of respectable persons to come forward for giving evidence in criminal cases which are realities the police force have to confront with while conducting investigation in almost every case [State of WB v Mir Mohammad Omar, AIR 2000 SC 2988 : 2000 Cr LJ 4047 : 2000 (8) SCC 382 : 2000 (4) Crimes 1 ].

Whenever an aggrieved person approaches a Magistrate with the prayer that the police has refused to register his report in respect of a cognizable offence, the Magistrate is required to look into his application only to determine whether any cognizable offence is disclosed thereby or not. In case it is so disclosed, then the Magistrate has no option but to direct the police to register an FIR and investigate the case. A Magistrate is not required to conduct an inquiry whatsoever under section 156(3) of the Code and he is not expected to act in any other manner but to order the police for registration of a report. In case any other enquiry is conducted and the matter is delayed on account of calling of a report from the police, it would rather tantamount to ecroach upon the function of the police and the same is not to be undertaken by a judicial Court. An application with a prayer for direction to register an FIR for investigation cannot be registered as a complaint by the Magistrate, because doing so would be contrary to law. The purpose of complaint, and application under section 156(3), Code of Criminal Procedure, 1973 are totally different. If a cognizable offence is disclosed in an application

Page 19 of 34 [s 156] Police officer’s power to investigate cognizable case.— under section 156(3), the Magistrate has no option but to direct the police to register and investigate the case [Babu Lal v State of Rajasthan, 2009 Cr LJ 4362 (pp 4368, 4369, 4370) (Raj)].

Investigation cannot be challenged on ground of incompetency of investigation of concerned police officer [Jai Prakash Dubey v State of UP, 2008 Cr LJ (NOC) 919 (All) : 2008 (61) All Cri C 537 : 2008 (2) All Cri R 1684]. [s 156.36] Sub-section (3).— In a complaint it was alleged that the accused forged the partnership deed. On the basis of the complaint it was difficult to determine whether forgery actually took place, it caused loss to complainant or there was mens rea. Since the Magistrate could not find clear material to proceed against the accused, even a case for summoning was not found and the case was primarily of civil nature therefore the Magistrate called for report under section 202 of the Code instead of issuing direction for investigation under section 156 (3). The Apex Court held it proper and held that the direction under section 156 (3) of the Code is to be issued, only after application of mind by the Magistrate. When the Magistrate does not take cognizance and does not find it necessary to postpone issuance of process and finds a case made out to proceed forthwith, direction under the said provision is issued. In other words, where on account of credibility of information available, or weighing the interest of justice it is considered appropriate to straightaway direct investigation, such a direction is issued. Cases where Magistrate takes cognizance and postpones issuance of process are cases where the Magistrate has yet to determine “existence of sufficient ground to proceed”. Subject to these broad guidelines available from the scheme of the Code, exercise of discretion by the Magistrate is guided by interest of justice from case to case. [Ramdev Food Products Pvt Ltd v State of Gujarat, AIR 2015 SC 1742 : 2015 (6) SCC 439 ].

The power under section 156 (3) warrants application of judicial mind. The litigant cannot at its own whim invoke authority of the Magistrate. Therefore, the applications under section 156 (3) of the Code are to be supported by affidavit duly sworn by applicant seeking invocation of jurisdiction of the Magistrate under section 156(3) of the Code. [Priyanka Srivastva v State of UP, AIR 2017 SC 1759 ].

The Apex Court issued directions to register FIR under section 156 (3) of the Code to ensure proper investigation. On the basis of the facts and circumstances of the case the Apex Court held that the order of Magistrate and the High Court declining to issue such directions is erroneous. [Hamant Yashwant Dhage v State of Maharashtra, AIR 2016 SC 814 : 2016 (6) SCC 273 ].

Where allegations under sections 302, 201 and 120-B, Indian Penal Code, 1860 have been made, the proper course for the Magistrate is to direct the police to register a case and investigate into it [Sant Lal v State of Rajasthan, 2008 Cr LJ 1187 (1190) : 2008 (1) Raj LW 630 (Raj) : 2008 (62) All Ind Cas 814].

The Magistrate can direct investigation under section 156(3), Code of Criminal Procedure, 1973 only to police station of the area and not to any other police station [DA Panduranga Shet v Sagar Town Police, 2008 Cr LJ (NOC) 154 : 2007 (6) AIR Kar R 634 (Kant) : 2008 (4) Kant LJ 559 ]. The power under section 156(3) can be invoked by the Magistrate prior to his taking cognizance of the case [Gangadhar Behera v State of Orissa, 2008 Cr LJ 839 (841) : 2007 (38) OCR 509 ; Alosia Joseph v Dr Joseph, Kollamparmbil, 2009 (1) Ker LT 740 (Ker) : 2009 Cr LJ 2190 ].

The use of the word “may” in section 156(3) instead of “shall” is very significant and clearly indicates that the Magistrate has the discretion in the matter and can, in appropriate cases, refuse to order investigation [Sukhwasi v State of UP, 2008 Cr LJ 472 (474) (All-DB) : 2007 (6) All LJ 424 : 2007 (59) All Cri C 739].

The provisions of section 156(3), Code of Criminal Procedure, 1973 must be given a more dynamic and active interpretation to ensure that the quality of investigations in the country improves. Where proper investigation is conducted, it may not be necessary or possible for the Magistrate to invoke the powers under section 156(3), Code of Criminal Procedure, 1973 to monitor, supervise or interfere with the investigation. But as held in para 29, when a proper investigation is not done the Magistrate has in its jurisdiction competence to interfere with the investigation. The power under section 156(3), Code of Criminal Procedure, 1973, it has been clearly held,

Page 20 of 34 [s 156] Police officer’s power to investigate cognizable case.— is wide enough to justify monitoring, supervision and even interference with the investigation in an appropriate case [Vasanthi Devi v SI of Police, Kattakkada, 2008 Cr LJ 2359 (2364) (Ker) : 2008 (1) Ker LT 945 : 2008 (1) Ker LJ 667 ].

The directions to be issued under section 156(3), Code of Criminal Procedure, 1973 must clearly reflect only the yearning and endeavour to search for truth. Such directions must eloquently declare that the Magistracy is only discharging its fundamental commitment in the pursuit for truth and justice. Directions should not be issued which convey the impression that the Magistrate is himself investigating [Vasanthi Devi v SI of Police, Kattakkada, 2008 Cr LJ 2359 (2365) (Ker) : 2008 (1) Ker LT 945 : 2008 (1) Ker LJ 667 ].

For ordering investigation under section 156(3), Code of Criminal Procedure, 1973, the Magistrate cannot act merely as a post office and he is bound to apply his mind before so doing [DK Pattanaik v Station House Officer, 2008 Cr LJ 2287 (p 2293) (AP) : 2008 (1) Andh LT (Cri) 321 : 2008 (1) Andh LD (Cr) 692].

The Magistrate has the reservoir of powers under section 156(3) to issue appropriate directions and ensure that a proper investigation is conducted. A person aggrieved by an inadequate or improper investigation cannot ordinarily be permitted to come to the High Court with a grievance about such improper investigation. He must normally be asked to seek his equally efficacious remedy under section 156(3) [Sajina T v State of Kerala, 2008 Cr LJ 2712 (2714) (Ker) : 2008 (2) Ker LJ 3 : 2008 (3) AICLR 796; see also Sakiri Vasu v State of UP, 2008 AIR SCW 309 : AIR 2008 SC 907 : (2008) 2 SCC 409 : 2007 (4) Crimes 338 ].

In appropriate cases where there is non-corporation by the accused, the High Court has power while exercising its jurisdiction under Article 226 to direct the police concerned to have a proper investigation done [Standard Chartered Bank, New Delhi v Yogesh Sharma, 2006 Cr LJ 4322 (4330) : 2006 (133) Del LT 218 (Del)].

A complaint to a Magistrate disclosing a cognizable offence may well justify in sending it to the police for investigation under section 156(3) when primarily it is their duty to investigate such cases. On the other hand, the Magistrate may also in a proper case take cognizance and proceed under chapter 15 [Gopaldas Sindhi v State of Assam, AIR 1961 SC 986 : (1961) 2 Cr LJ 39 (SC)].

Section 156(3) provides that any Magistrate empowered under section 190, Code of Criminal Procedure, 1973 may order such an investigation in the matter of cognizable offence. Therefore, in view of the facts and circumstances of this case as discussed hereinabove the learned Magistrate concerned is empowered by law to arrive at a conclusion with regard to allegation of inaction on the part of the police authority and to take a decision with regard to investigation in the manner prescribed in section 156(3) of Code of Criminal Procedure, 1973 upon consideration of an application, if any. [ICICI Prudential Life Insurance Co Ltd v State of WB, 2011 Cr LJ 1336 (p 1339) (Cal)].

The power under section 156(3) of the Code can be exercised by the Magistrate even before he takes cognizance provided the complaint discloses commission of a cognizable offence. Thus, where the complaint did not disclose commission of a cognizable offence, the order directing investigation was held liable to be quashed [Tilaknagar Industries Ltd v State of AP, AIR 2012 SC 521 ].

In the case of a complaint regarding the commission of cognizable offence, the power under section 156(3) can be invoked by the Magistrate before he takes cognizance of the offence under section190(1)(a). However, if he once takes such cognizance and embarks upon the procedure embodied in chapter XV, he is not competent to revert back to the pre-cognizance stage and avail of section 156(3) [Madhao v State of Maharashtra, (2013) 5 SCC 615 : 2013 (6) Scale 529 ].

In a case triable by Court of Sessions, the Magistrate on the receipt of the complaint instead of conducting the inquiry himself under section 202, Code of Criminal Procedure, 1973, can direct the investigation by Police

Page 21 of 34 [s 156] Police officer’s power to investigate cognizable case.— officer under section 156(3), Code of Criminal Procedure, 1973 [Jogendra Nath Gharei v State of Orissa, 2003 Cr LJ 3953 (p 3957) (Ori) : (2003) 96 Cut LT 342 : 2003 (24) OCR 787; Laxmidhar Dass v State of Orissa, 2004 (1) OLR 643 (Ori) : 2004 Cr LJ 2816 : 2004 (3) Crimes 299 ].

When in an offence triable by Court of Session, Magistrate did not take cognizance of offence, non-recording of sworn statement of complainant or his witnesses at the time of prosecution before forwarding complaint to police cannot be held to be in violation of any provisions of Code of Criminal Procedure, 1973. [VD Krishna Murthy v State of AP, 2006 Cr LJ (NOC) 528 (AP) : 2006 (1) Andh LD (Cr) 853].

Application given for investigation of case and registration of an FIR cannot be converted into complaint by Magistrate against the wishes of the victim. Application disclosing cognizable offence was made but Magistrate neither registered a case nor directed police to investigate the matter. It was held that it was illegality and total miscarriage of justice [Santosh Kumari v State, 2007 Cr LJ 3869 (All) : 2007 (5) All LJ 81]. Police investigation is permissible only in cognizable offences [Swati Sachin Mazhajan v State, 2007 Cr LJ 3645 (Bom) : 2007 (5) Mah LJ 427 : 2007 (2) Bom CR (Cri) 20 : 2007 All MR (Cri) 1473].

If evidence of witnesses is cogent, defect on part of the investigating officer would not be taken into account [State v Sohan Singh, 2007 Cr LJ 3702 (Utt)]. Order of Magistrate directing registration of FIR and investigation of case is an interlocutory order and it is not amenable to revisional power of the High Court [Vanshu v State, 2007 Cr LJ 4677 (All) : 2007 (5) All LJ 642].

An application with a prayer for direction to register an FIR for investigation cannot be registered as a “complaint” by the Magistrate because, doing so, would be contrary to law. The purpose of complaint and an application under section 156(3), Code of Criminal Procedure, 1973 are totally different and such application cannot be treated to be a complaint by the Magistrate on his own. If a cognizable offence is disclosed in an application under section 156(3), Code of Criminal Procedure, 1973, the Magistrate concerned has no option but to direct the police to register and investigate the case.

Magistrate can treat an application under section 156(3), Code of Criminal Procedure, 1973 as a complaint case, adopt the procedure of the complaint case by recording evidences under sections 200 and 202, Code of Criminal Procedure, 1973 and then either proceed under section 203, Code of Criminal Procedure, 1973 and dismiss the complaint if no offence is made out on summoning the accused under section 204, Code of Criminal Procedure, 1973 whose complicity is disclosed in the inquiry conducted by it under sections 200 and 202, Code of Criminal Procedure, 1973.

There cannot be any deviation from such a prescribed procedure under Code of Criminal Procedure, 1973. Golden rule of judicial interpretation is that if thing is required to be done in a particular manner then either it should be done in that manner or not at all. [Bahadur Singh v State of UP, 2011 Cr LJ 3346 (3347) (All)].

The Special Judge has the power to direct and it is appropriate that while issuing an order under section 156(3) of the Code the Police is directed to hold some enquiry to find whether there is prima facie evidence of guilt of the public servant before a case is registered and a full-fledged investigation is started [GS Prakash v State of Kerala, 2011 Cr LJ 3771 (p 3784) (Ker)].

Where the Magistrate is of the view that the matter does not require any investigation and he would inquire himself then it would amount to prejudging the issue of investigation. If in an application under section 156(3), Code of Criminal Procedure, 1973 an aggrieved person does not want the Magistrate to take cognizance of an offence and inquire into the matter himself then by declining to pass an order to the police to register an FIR and investigation, would rather cause injustice to the victim. [Babu Lal v State of Rajasthan, 2009 Cr LJ 4362 (4369, 4370) : (2009) 3 WLN 9 ].

Page 22 of 34 [s 156] Police officer’s power to investigate cognizable case.— In the facts and circumstances, it cannot be said that while directing the police to register FIR, the Magistrate has committed any illegality. As a matter of fact, even after receipt of such a matter of fact, even after receipt of such report, the Magistrate under section 190(1)(b) may or may not take cognizance of offence. In other words, the Magistrate is not bound to take cognizance upon submission of the Police report by the investigating officer, hence by directing the police to file charge-sheet or final report and to hold investigation with a particular result cannot be construed that the Magistrate has exceeded his power as provided in sub-section (3) of section 156, Code of Criminal Procedure, 1973 [Sriniwas Gundluri v SEPCO Electric Power Construction Corp, 2010 Cr LJ 4457 (4465) : (2010) 8 SCC 206 : (2010) 3 Crimes 304 ].

The “complaint” as soon as an order under section 156(3) is passed thereon— transforms itself to a report given in writing within the meaning of section 154 of the Code, which is known as the First Information Report (FIR). As under section 156(1) the police can only investigate a cognizable “case”, it has to formally register a case on that report [Madhu Bala v Suresh Kumar, AIR 1997 SC 3104 : 1997 Cr LJ 3757 : 1997 (8) SCC 476 ]. Investigation under section 156(3) embraces the entire continuous processes which begins with the collection of evidence and ends with a report or charge-sheet under section 173. Investigation is exercisable under section 156(3) at the pre-cognizance stage and under section 203(2) at the post cognizance stage when the Magistrate is in seisin of the case. If he once takes cognizance he is not competent to switch back to precognizance stage and avail of section 156(3) [Devarapalli Lakshminarayana Reddy v V Narayana Reddy, AIR 1976 SC 1672 : 1976 Cr LJ 1361 : 1976 SCC (Cri) 380 : (1976) 3 SCC 252 (SC); Sk Jamaluddin v State of Bihar, 1980 Cr LJ 1054 : 1980 Pat LJR 277 : 1980 BLJR 357 (Pat) Jay Krishna Chakraborty v The State, 1980 Cr LJ 482 (Cal) : 1980 (1) Cal HN 68 Tularam v Kishore Singh, AIR 1977 SC 2401 : 1978 Cr LJ 8 : (1977) 4 SCC 459 (SC)].

Where the officer-in-charge of police station refused to register the case against Chief Minister for derogatory remarks, it was held that it was open for the petitioner to approach the Magistrate for remedy under section 156(3) or by filing complaint under section 200, Code of Criminal Procedure, 1973 and not by filing writ petition [Ram Subhag Singh v State of Jharkhand, 2010 Cr LJ (NOC) 598 (Jhar)].

Taking into account the facts and circumstances of the case the nature and gravity of the offence and the stage of investigation, the Court is of the view that the petitioner cannot be released on bail at this stage. If the petitioner is released on bail, there is a likelihood of his indulging in similar criminal activities. The likelihood of the petitioner trying to intimidate and influence the witnesses and to tamper with the evidence, also cannot be ruled out. There must be effective mechanism to punish the offenders under section 489-B of the Indian Penal Code without any delay. The priority must be given to the disposal of cases under sections 489A, 489-B, 489C and 489D of the Indian Penal Code. The investigating agency should also take care to complete the investigation expeditiously. A casual approach in the matter of granting bail in such cases would act as an encouragement to the offenders to indulge in similar offences again and again [Rameshbhai Pandurao Hedau v State of Gujarat, 2010 Cr LJ 2441 (pp 2444, 2445) : AIR 2010 SC 1877 ].

Mere allegation without any material would not suffice to hold that it is a matter of investigation by the police. If the Court concerned feels that the petition filed with oblique motive without any material, the same must have been rejected even at the threshold [SP Shenbagamoorthy v Mu Ka Statin, 2003 Cr LJ 271 (278) (Mad)].

It is quite necessary that before passing an order under section 156(3), Code of Criminal Procedure, 1973 referring the complaint to the police for investigation, the Magistrate should apply his mind to the facts alleged in the complaint and see whether the said facts disclose any cognizable offence and, if he forms an opinion that the said facts disclose a cognizable offence, then only he shall proceed to pass an order under section 156(3), Code of Criminal Procedure, 1973. [YN Ramachandra Rao v CCI Ltd, 2011 Cr LJ 1073 (p 1078) (Kant)].

By referring the case to police officer under section 156(3), Code of Criminal Procedure, 1973 without examining witnesses, the Magistrate cannot be said to have committed the error. When the Magistrate himself records the statements of witnesses cited in the complaint, question of his referring the complaint to police for

Page 23 of 34 [s 156] Police officer’s power to investigate cognizable case.— investigation under section 156(3) does not arise at all [G Lakshmi Narayanamma v State of AP, 2005 Cr LJ 860 (AP)].

Where the application for registration of FIR and investigation of case was dismissed on merits by a nonspeaking order, it was held that the order so passed was liable to be set aside [Pushpa Devi v State of UP, 2010 Cr LJ (NOC) 290 (All)].

The Court has to apply its mind and satisfy itself whether complainant has pleaded sufficient material facts as to constitute alleged offence [PR Venugopal v SM Krishna, AIR 2004 Kant HCR 28 : 2004 Cr LJ NOC 32 : 2003 (4) KCC R 2509 (Kant)].

In order to indicate that he applied his mind to the facts alleged in the complaint, the Magistrate could have stated in the impugned orders passed under section 156(3), Code of Criminal Procedure, 1973 as “perused the allegations in the complaint” or “allegations in the complaint disclose cognizable offence” or “the allegations in the complaint make out cognizable offence requiring investigation by the police” etc. If any of such statements is made in an order under section 156(3), Code of Criminal Procedure, 1973, one can make out from the order itself that “the Magistrate applied his mind to the facts alleged in the complaint”. [YN Ramachandra Rao v CCI Ltd, 2011 Cr LJ 1073 (p 1078) (Kant)].

If the Magistrate finds a prima facie case, he is empowered to direct the police to investigate the case, and if the Magistrate finds that the complaint does not disclose any offence, he can dismiss the complaint [Miru Kumari v State of Bihar, (2007) 1 Mad LJ (Cr) 357 (SC)].

The Magistrate is fully competent to use his judicial discretion in the matter. If he is of the opinion that in circumstances of case it will be proper to treat application as complaint case then he may proceed according to procedure provided in chapter XV of Code of Criminal Procedure, 1973 [Chandrika Singh v State, 2007 Cr LJ 3169 (All) : 2007 (4) All LJ 157].

In rape and assault case private complaint was filed but Magistrate did not chose to proceed under section 200 and examine prosecutrix. Instead he considered application under section 156(3) and sent complaint to police with direction to get prosecutrix examine medically and file report. It was held that impugned order directing investigation was not improper [Pawan Sharma v Kamalabai, 2007 Cr LJ 3539 (MP) : 2007 (3) Crimes 303 ].

The entrustment of the property and the misuse thereof contrary to the agreement being the basic ingredients of an offence of a criminal breach of trust, a complaint which does not disclose the fact which could reveal such basic ingredients of the said offence can hardly be said to be sufficient either for the police authorities to take cognizance thereof, or for the Magistrate to exercise powers under section 156(3) of the Code of Criminal Procedure [Kishore Kirtilal Mehta v State of Maharashtra, 2008 Cr LJ (NOC) 1149 (Bom) : 2008 (4) AIR Bom R 420 (Bom) : 2008 All MR (Cri) 2645].

It was alleged that the accused had prepared forged BPL ration cards in large numbers and the order for summoning accused was passed. Held, as allegations were of serious nature, investigation under section 156(3) was required and the accused being public servants, previous sanction under section 197 for their prosecution was not obtained, the order summoning accused was vitiated and the case was remanded [Rajesh Kumar v State of UP, 2008 Cr LJ (NOC) 1271 (All) : 2008 (5) ALJ 1 : 2008 (62) All Cri C 147].

On receiving the complaint, the Magistrate has to apply his mind to allegations in the complaint upon which he may proceed at once to take cognizance or he may order it to go to the Police Station for being registered and investigated. The order passed by the Magistrate must indicate application of mind [Ram Babu Gupta v State of UP, 2001 Cr LJ 3363 (pp 3368, 3369) (All-FB) : 2001All LJ 1548 : 2001 (42) Cll Cri C 638; PR Venugopal v SM Krishna, 2004 Cr LJ NOC 32 : (2003) 6 Kant LJ 507 (Kant). (Indian Penal Code, 1860 sections 120B, 383—

Page 24 of 34 [s 156] Police officer’s power to investigate cognizable case.— Complaint for release of cine star from clutches of Veerappan—No material/allegation disclosing offence, no case for investigation under section 156(3), Code of Criminal Procedure, 1973, complaint dismissed); Ram Agya v State of UP, 2002(1) Crimes 542 (All)].

Even when the Magistrate finds that cognizable offence has been committed, he may direct police to make investigation instead of taking cognizance under section 190, Code of Criminal Procedure, 1973 [Lalit Sngandhi v Mahendra Kumar Sngandhi, 2010 Cr LJ (NOC) 263 (MP)].

Accused need not be given opportunity of being heard before the Magistrate issues direction for police investigation [Lalit Sngandhi v Mahendra Kumar Sngandhi, 2010 Cr LJ (NOC) 263 (MP)].

Where the applicant alleged that his wife died due to negligence of doctor and filed an application for registration of case, it was held that rejection of the said application by Magistrate without enquiring into the matter and providing opportunity of hearing to the applicant, though offence was cognizable, was invalid [Mangalsen v State of UP, 2010 Cr LJ (NOC) 139 (All)].

Direction issued by the Magistrate to the police to investigate into allegations against accused was held proper in view of the nature of allegations [Om Oil and Flour Mills Ltd v State of Orissa, 2010 (NOC) 179 (Ori)].

At the stage of section 156(3), the accused has no right to be heard, nor he can challenge order before FIR is registered against him. It is only the victim who has a right to be heard at the stage of pre-registration of FIR [Mangalsen v State of UP, 2010 Cr LJ (NOC) 139 (All)].

In this case, the applicant alleged criminal negligence by doctor due to which his wife died. The Magistrate, without inquiring into the matter and providing opportunity to applicant rejected his application for registration of FIR, though the offence was cognizable. The order rejecting application under section 156(3) was held invalid [Mangalsen v State of UP, 2010 Cr LJ (NOC) 139 (All)].

In the instant case, the complaint petition has been treated as FIR by the Police under section 156(3) of the Code, once an investigation has been completed, the law enjoins the officer-in-charge of the police station to forward a final report to a Magistrate empowered to take cognizance of an offence on a police report. In other words the completion of the investigation must culminate in filing either a charge-sheet under section 170 of the Code or a final report under section 169 of the Code. The investigation of the case done haphazardly and in a casual manner and submitting a letter by the Police Inspector to the Magistrate regarding case instead of following the aforesaid procedure is illegal [Pradeep Dutta Bhowmik v State of Tripura, 2004 Cr LJ 1697 (Gau)].

Simply on the basis of the statement of the accused before the Court, the Magistrate could not have given any direction for investigation under section 156(3), Code of Criminal Procedure, 1973 if the statement was not recorded. The procedure, under sections 200 and 202, Code of Criminal Procedure, 1973 was not followed. The character of investigation was held not sustainable [Anil Sharma v State of Rajasthan, 2005 Cr LJ 713 (Raj)].

When the order revealed that the Magistrate has not gone through the complaint, it can be inferred that the Magistrate has not applied his mind and, therefore, the directions issued by the Magistrate for investigation by police is not just and proper. [Jitendra Chandrakant Mehta v Shamrock Impex Pvt Ltd, 2006 Cr LJ 3131 (3134) (Bom) : 2006 (2) Bom CR (Cr) 906 ].

The Magisterial power cannot be stretched under section 156(3), Code of Criminal Procedure, 1973 beyond directing the officer in charge of a police station to conduct the investigation. [Central Bureau of Investigation v Joint Commissioner of Customs, IGI, Airport, Delhi, 2006 Cr LJ 2838 (Del) : 2006 (2) JCC 897 ].

Page 25 of 34 [s 156] Police officer’s power to investigate cognizable case.—

Interference in the exercise of the statutory power of investigation by the police by Magistrate is limited. He does not have any inherent power [Dharmeshbhai Vasudvbhai v State of Gujarat, 2009 Cr LJ 2969 (p 2970) (SC) : 2009 (2) Crimes 369 : (2009) 6 SCC 576 : (2009) 3 SCC (Cri) 76 ].

The Magistrate has no power to recall his order [Dharmeshbhai Vasudvbhai v State of Gujarat, 2009 Cr LJ 2969 (p 2970) (SC) : 2009 (3) Guj LR 2264 : 2009 (2) Crimes 369 ].

The deceased was brought from place “O” for committing her murder. While on way to place “D” she was pushed down from the car in which she sustained serious injuries. It was held that the part of cause of action arose at “O” and, therefore, allowing application under section 156(3) and lodging of FIR by police at place “O” was held proper [Manasvi Kumar v State of UP, 2009 Cr LJ (NOC) 1205 (All)].

Where the alleged offence was not of heinous nature and the allegations in the petition were not of such a nature which could not be levelled falsely, it was held that the application for investigation of case was properly rejected [Krishna Kumar Tiwari v State of UP, 2009 Cr LJ (NOC) 1083 (All)].

It was alleged in application for investigation that the order of suspension of petitioner on disciplinary ground was passed against him on account of wrong information given by his senior officer that a criminal case was pending against him. It was further alleged that the senior officer of the petitioner was guilty of committing an offence under SC and ST (Prevention of Atrocities) Act. This information was found incorrect. The revision petition filed by the petitioner against the Magistrate’s order that no case was made out was dismissed. It was held that the purpose of seeking direction to register offence was only to settle score with the senior officer and therefore no interference by the High Court is warranted [Gajraj Singh Tomar v State, 2009 Cr LJ (NOC) 1065 (Del)].

Held, in the Code of Criminal Procedure, the powers to direct for registration of FIR has been specifically conferred on the Magistrate under section 156(3). If such an application was moved before the Magistrate and was rejected only then in revision, the Sessions Judge could have directed the Magistrate to pass appropriate orders but the Sessions Judge himself cannot direct for registration of FIR against any person. While deciding an application for bail, the Sessions Judge had exceeded his jurisdiction in directing the registration of FIR. The revision, therefore deserves to be allowed [Hari Prakash Kasana v State of UP, 2009 Cr LJ 4317 (p 4318) (All) : 2009 (66) All Cri C 257 : 2009 (5) All LJ 750].

In the instant case, the Magistrate rejected the application for registration of FIR and investigation of case on the ground that a suit in Civil Court between the parties was pending but simultaneously he permitted the applicant to file a complaint meaning thereby he had not found that the information was incorrect or appeared to be false and that the information did not constitute a cognizable offence but impressed with the fact that the police did not believe the information of the applicant and that it had taken proceedings under sections 107 and 116, Code of Criminal Procedure, 1973, he had rejected the application though he had made it open to the applicant to file complaint. It was held that he could have treated application as complaint under section 190 of the Code and proceeded accordingly and, therefore, it would be said that the Magistrate had not correctly exercised the power under section 156(3) and the order of rejection was erroneous [Roop Ram v State, 2009 Cr LJ (NOC) 1091 (All)].

Refusal to register FIR in the matter purely civil in nature was held not improper [Chandrapal v State of UP, 2009 Cr LJ 3174 (p 3175) (All) : 2009 (4) All LJ 35 : 2009 (65) All Cri C 437].

The power of Magistrate to direct investigation into the allegations contained in the complaint petition may arise in two different situations—(1) when an FIR is refused to be lodged; or (2) when the statutory power of

Page 26 of 34 [s 156] Police officer’s power to investigate cognizable case.— investigation for some reason or the other is not conducted [Dharmeshbhai Vasudevbhai v State of Gujarat, 2009 Cr LJ 2969 , 2470 (SC) : 2009 (2) Crimes 369 : (2009) 6 SCC 576 : (2009) 3 SCC (Cri) 76 ].

When the application is moved by the complainant under section 156(3), Code of Criminal Procedure, 1973 before the Magistrate for directing the police to register the case against the accused, there is nothing wrong if the application is directed to be treated as complaint. [Neeb Devi v State of UP, 2010 Cr LJ 2354 (2001 (Suppl) ACC 957 (SC) relied on)].

If a person wishes to invoke the powers of the Court under section 156(3), normally, he may exhaust the remedy available to him as provided in terms of section 154, Code of Criminal Procedure, 1973. [Panchabhai Popatbhai Butani v State of Maharashtra, 2010 Cr LJ 2723 (p 2742) : (2010) 112 Bom LR 427 (Bom)].

Magistrate is not supposed to pass an order under section 156(3) as if he is holding a trial. It is for the police to register and investigate the crime [Pappu v State of UP, 2007 (1) Crimes 674 (All)].

Application by the complainant before the Magistrate disclosed cognizable offence. Rejection thereof, without giving reason is illegal [Seraj Aslam v State of UP, 1992 Cr LJ 2244 : 1992 All LJ 740 : 1992 Cur Cr R 1778 (All) (B P Singh J)]. An order of the Magistrate directing police investigation under sub-section (3) of section 156, Code of Criminal Procedure, 1973 cannot be treated as illegal on a solitary ground that it is not a speaking order [GP Sinha v State of Gujarat, (2003) Cr LJ 4538 : 2003 (3) Guj CD Guj 2141 (Guj); Mahadeo v State of UP, 2006 Cr LJ 1424 (1425) (All) : 2006 (2) All LJ 97].

Conjoint reading of sections 14, 156(3), 173 and 177 of Code of Criminal Procedure, 1973 would reveal that the authority of the Magistrate to direct the investigation to a police officer relate to his powers to take cognizance of such offence and secondly to a police officer, who can function within the jurisdiction of the local limits of his Court and this authority or empowerment does not travel beyond those limits, section 190 of Code of Criminal Procedure, 1973 speaks of the power of the Magistrate “to take cognizance” of an offence. The Code does not define the said expression. But, it is settled law that the cognizance tantamount to taking judicial notice of an offence. It is different from merely initiating proceedings. Commencement of criminal proceedings relating to an offence by itself does not amount to taking cognizance. The CID Department has been constituted and functions in terms of Manual of Instructions framed by the State Government Provisions of the Manual obviously disclose that on receipt of a case by the State CID, the investigation in that regard would be entrusted to an investigation officer as his powers in that regard are not confined to the investigating officer attached to any particular police station, albeit such exercise of powers cannot be done arbitrarily. [State of Maharashtra v Ibrahim A Patel, 2008 Cr LJ 1496 (p 1499) (Bom)].

Cognizance of offence was not taken by the Magistrate under section 190(1)(a) on receipt of complaint—He can, therefore, direct investigation under section 156 (3) after registration of the case [Baru Ram v State of Haryana, 1990 Cr LJ NOC 153 : 1989 (2) All CrLR 608 : (1989) 16 Cr LT 252 (P&H) (per S S Grewal J)].

Investigation under section 156(3) is ordered before cognizance of offence is taken and that under section 202 is ordered after such cognizance. In investigation under section 156(3) it is open to the police to examine the accused whereas in investigation under section 202 he has no right to take part in inquiry proceedings [Banchhanidhi Maharatha v Srinibass Paikray, AIR 1967 Ori 62 : 1967 Cr LJ 637 : 33 Cut L 38; Rameshwari Pandurao Hedau v State of Gujarat, 2010 Cr LJ 2441 (2444) (SC)]. When a complaint is filed before a Magistrate alleging commission of cognizable offences and he sends it to the police for investigation, he does not take cognizance of any offence [Re : Arumughu Gounder, AIR 1962 Mad 495 : 1962 (2) Cr LJ 762 : 1962 (2) Mad LJ 91 : 1962 Mad LJ (Cri) 411 (Gopaldas, supra; relied on)]. Sub-section (3) does not apply once cognizance has been taken by the Magistrate after a complaint. It only empowers him to order investigation when process is not at once issued. He cannot direct the police to submit a report under chapter 12 after cognizance of a complaint and acting under chapter 15 [Isaf, 54 C 303; Abhay Charan Joddar v Bangshodhar Mitra, AIR 1949 Cal 58 : (1948) 49 Cr LJ 647 (1); Pulin, 53 Cal WN 653; Yakub Sheikh v The King, AIR 1950 Cal 340 : (1950) 51 Cr LJ 1290 : 54 Cal WN 373; Bissen Singh v Prameswari Singh, AIR 1950 Cal 99 : (1950)

Page 27 of 34 [s 156] Police officer’s power to investigate cognizable case.— 51 Cr LJ 457 ; Santosh Kumar v The King, AIR 1952 Cal 193 : 1952 Cr LJ 552 ; Vijayaraghavachari, AIR 1928 M 1268; see Nur Md., 53 B 339; Kher Singh, AIR 1942 L 256; Shahabad, AIR 1940 SC 214 ]. So either cognizance should be taken of a complaint or the police should be directed to investigate under section 156 (3). A composite hybrid order both under section 156 (3) and section 202 is illegal [Pulin, 53 Cal WN 653; Bissen Singh v Prameswari Singh, AIR 1950 Cal 99 : (1950) 51 Cr LJ 457 ]; but the mere fact that a Magistrate has taken cognizance of a complaint does not debar the police from inquiring into offences which have come to their knowledge from sources other than the complaint [Vijayaraghavachari, 30 Cr LJ 326]. The result of the view in these cases appears to be that section 156 (3) is not intended to provide an alternative procedure to that in sections 220–4 [ Arula, 12 Cr LJ 463; Vijayaraghavachari, sup]. Differing from the above view it has been held that if a Magistrate on taking cognizance of an offence directs the police to investigate under section 202 they are not debarred from exercising their general powers of arrest and investigation [Gopal, 54 M 598; Bhola Bhagat, 2 P 379 Raghunath, 33 CLJ 349; Shankar Singh (Dr) Ganda Singh v State of Punjab, AIR 1954 Punj 193 : 1954 Cr LJ 1393 : 56 Punj LR 54]. Where a Magistrate on receipt of a private complaint examines him under section 200 and sends it to the police for investigation under section 156(3), the private complaint loses its original character and becomes a final report under section 173 when the police submits a charge-sheet. The Magistrate on taking cognizance upon such report has to proceed under section 238 and not under, section 244 [Shivangowda v Veerappa, AIR 1964 Mys 129 : 1964 (2) Cr LJ 41 ]. A Full Bench in Sind has held that if a Magistrate after taking cognizance of an offence sends it to the police for investigation under section 202, it is not competent to them independently of the Magistrate’s direction to send up the accused for trial under a charge-sheet—scope of section 202 discussed [Bhika Moti, AIR 1938 SC 113 , FB].

In the instant case there are two cross-cases. The applicant is also accused in the cross-case and has obtained bail. In the circumstances, the subsequent registration of the FIR on the basis of an application under section 156(3) is uncalled for. In fact it is not a cross-version, but it is only an improvement of the version given out in the previous FIR. Registration of cross-case on the basis of application under section 156(3) is improper [Rajeev Kumar Singh v State of UP, 2006 Cr LJ 248 (All) : 2005 All LJ 3677].

If any cognizable offence has been committed and the police have refused to register the FIR then the Magistrate may direct the police to register the FIR. By not following the mandate of law not only the Magistrate has committed miscarriage of justice but at the same time he has given a blow to the person who is seeking justice for him. Ravindra Singh v State of UP, 2006 Cr LJ 3325 (All) : 2006 (4) All LJ 607 : 2006 (2) All CrC 657.

Once the Magistrate directs the police to investigate a cognizable offence under section 156(3) and the police starts investigation, he cannot thereafter recall his order and discharge the accused [Kanailal Agarwalla v The State, 1975 Cr LJ 1143 (Cal)].

In a complaint regarding removal of house-hold goods from house of complainant, the complainant filed application under section 156(3), Code of Criminal Procedure, 1973 stating that recovery could be made and that is why investigation is necessary. The application was moved after about a year, hence question of recovery loses its importance. The order of the Magistrate directing the application to be registered as complaint does not suffer any illegality [Ram Pal Singh v State of UP, 2006 Cr LJ 1439 (All) : 2006 (2) All LJ 363 : (2006) 54 All CrC 990].

In a dowry-death case, the wife died at the house of the accused husband, post-mortem was held and viscera was preserved. It was held that until the Viscera report was recovered in negative the presumption would be that it was a case of unnatural death within seven years of marriage and that the Magistrate committed no illegality in passing order under section 156(3) for registration and investigation of the case [Gurbachan Singh v State of UP, 2008 Cr LJ (NOC) 658 : 2008 (2) ALJ 640 (641, 642) (All) : 2008 (2) All Cri R 1950].

When the Magistrate without taking cognizance of offence sends the matter to police for investigation under section 156(3), it is not proper to require attendance of the parties in Court till receipt of police report [Hirji T Sanghavi v State of Gujarat, 1980 Cr LJ 1403 : 1980 CrLR (Guj) 168 (Guj)].

Page 28 of 34 [s 156] Police officer’s power to investigate cognizable case.— The Special Court, if it is satisfied that the matter requires enquiry by the Vigilance Police, may briefly state the allegations and the materials in support thereof that have come to its notice and order enquiry into the matter by the Vigilance Police, without recording any finding with respect to the truth of the facts mentioned in the complaint. Unless the Special Court refrains from making observations or findings touching the merit of the allegations, any enquiry or investigation by the Vigilance Police will become a farce [K Mohandas v Enquiry Commissioner and Special Judge, Chembu Kavu, Trichur, 2004 Cr LJ 509 : 2004 (2) All CrLR 97 : 2003 (3) Ker LT 480 (Ker)].

Special Judge appointed under provisions of the Act is not a Magistrate within the meaning of section 156(3), Code of Criminal Procedure, 1973. Special Judge is not competent to refer complaint to police for investigation [Surendra Nath Swain v State of Orissa, 2006 Cr LJ 462 (p 463) (Ori) : 2006 (1) Crimes 52 ]. The Special Judge should pass order for investigation under section 156(3) only in deserving cases [Madhatil Marakar Haji v Vakkom B Purshothaman, 2008 Cr LJ 742 (752, 753) : 2007 (4) Ker LT 659 ].

A Special Court under the Maharashtra Control of Organized Crimes Act, 1991 can direct investigation under section 156(3) [Ashok Gyanchand Vohra v State of Maharashtra, 2006 Cr LJ 1270 (pp 1304, 1305) (Bom-FB) : 2006 (1) Bom CR (Cri) 183 (Bom) : 2006 (3) Mah LJ 164 : 2006 All MR (Cri) 740].

The Magistrate while passing order under section 156(3), Code of Criminal Procedure, 1973 is not empowered to direct the police to register the First Information Report. The registration of the FIR pertains to the sphere of powers of investigation by the police, and the registration of the first information report is done in exercise of powers by the police under section 154 Code of Criminal Procedure, 1973 That function of the police need not, and cannot be usurped by the Magistrate while passing an order under section 156(3), Code of Criminal Procedure, 1973 [Ganesh Dass v State of Kerala, 1996 Cr LJ 612 : ILR (1996) 1 P&H 88 (P&H)].

After taking cognizance of the offence on the basis of the police report and after appearance of the accused, a Judicial Magistrate cannot order for further investigation. [Randhir Singh Rana v The State Being the Delhi Admin., AIR 1997 SC 639 : 1997 Cr LJ 779 : (1997) 1 SCC 361 : 1997(1) Crimes 58 (SC)].

An application made by the investigating agency (made through the prosecution seeking formal sanction for further investigation should be granted) [Bharuch Textile Mills v State of Gujarat, 2000 Cr LJ 465 : 1999 (2) Guj LH 531 (Guj) (RP Dholakia J); Manish Vijay Mhshlkar v State of Maharashtra, 2008 Cr LJ 670 ; Gorimaya v State of AP, 2006 Cr LJ (NOC) 420 (AP)].

Where prosecution was initiated with an oblique motive of causing harassment and there was absence of sufficient ground for the Magistrate to order registration and investigation of the case, an application under section 156(3) for an order of investigation was rightly rejected [Shakuntala Devi v State of UP, 2003 Cr LJ 687 : 2002 All LJ 2796 : 2002 (3) AN Cr R 2477 (All)]. [s 156.37] Registration of FIR for offence under Section 325, IPC.— Where the Magistrate straight away rejected the contention under section 325, Indian Penal Code, 1860 without following the mandate of revisional Court, the order of Magistrate was held liable to be set aside [Shiv Shanker v Judicial Magistrate, 2010 Cr LJ (NOC) 803 (All)].

The accused cannot claim further investigation, as a matter of right, except that the investigating officer or incharge of police station can undertake further investigation even after charge-sheet is filed and if there is some omission, further investigation, if called for is not precluded and investigating officer can inform the Court about further investigation and can produce additional information gathered prior to and subsequent to the investigation as contemplated under section 173(8), Code of Criminal Procedure, 1973. In the instant case, the record produced by the Public Prosecutor did not disclose that the last of witnesses who were examined by the police for laying charge-sheet were once again examined by the Deputy Superintendent of Police who retracted their statements made to the Investigating Officer who laid the charge-sheet. In the absence of examination of

Page 29 of 34 [s 156] Police officer’s power to investigate cognizable case.— prosecution witnesses who were shown in the charge-sheet by the Deputy Superintendent of Police the petitioner accused would not have any indefeasible right to claim that said witnesses who were cited by the prosecutor have to be contradicted in terms of the statements recorded by CBICID [JC Chetharanjan Reddy v State of AP, 2005 Cr LJ 2484 (AP)].

Where as a result of earlier FIR lodged by the complainant, investigation was commenced and no counter-case was lodged by accused, it was held that Court could not order fresh investigation and direction was given to the Investigating Officer to collect additional evidence and submit additional report [Naushad v State of UP, 2005 Cr LJ 2772 (All)].

The Court cannot issue direction to the investigation agency to submit report to the effect that the allegations have been supported by the material collected during investigation [MC Abraham v State of Maharashtra, (2003) 2 SCC 649 (660) : 2003 (1) Crimes 302 : JT 2002 (10) SC 482 ].

The Magistrate has no power to direct the accused to give his specimen writings for the purpose of comparison with the disputed writings when the case is at the stage of investigation [Guru Pal Singh v State of UP, 2002 Cr LJ 1517 (p 1519) (All) : 2002 All LJ 149 : 2002 (1) Crimes 759 : (2002) 44 All CrC 245].

Investigation would not be taken up before the case is registered [Shanti Devi v State, 2003 Cr LJ (NOC) 69 : (2002) 97 DLT 410 : (2002) 63 DRJ 1 ].

The Magistrate cannot direct investigation of a case by a Gazetted Officer, as he cannot direct any officer other than the one who is in charge of the police station to conduct investigation [Shahid Akhtar v State of UP, 2004 (1) Crimes 34 (All)]. A Magistrate cannot refer the case under section 156(3) to the COD Police for investigation and report [Narasimhaiah v State of Karnataka, (2002) 3 Crimes 704 : 2002 Cr LJ 4795 (Kant) : 2002 (2) Kant LJ 408 ]. A decision to direct an inquiry by CBI against a person, can be only made if the High Court after considering the material on record comes to a conclusion that a prima facie case calling for investigation by CBI or any other similar agency is made out [Secretary, M I & RE, Services UP v Shangoo Ram Arya, AIR 2002 SC 2225 : 2002 Cr LJ 2942 (SC) : (2002) 5 SCC 521 ].

It is not the function of the Court to monitor investigation process so long as such investigation does not transgress any provision of law. It must be left to the investigating agency to decide the venue, the timings and questions. A blanket order fully insulating a person from arrest, would make his interrogation a mere ritual. [Dukhishyam Benu Pani v Arun Kumar Bajoria, 1998 Cr LJ 841 : AIR 1998 SC 696 : (1998) 1 SCC 52 : 1997 (4) Crimes 299 (SC)].

Where the complaint itself suggests that prima facie the alleged accused is guilty of a cognizable offence, direction to police to investigate and submit report is not liable to be termed as abuse of process of Court; proceedings to continue. [Nawal Kishore Gupta v State of UP, 1999 Cr LJ 3404 : 1999 All LJ 1472 : 1998 (37) All Cr C 728 (All)].

Where complainant was a Police Inspector who himself registered FIR as victim and informant, conducted investigation and filed charge-sheet then such proceedings were held liable to be quashed. [Shanthappa v State, AIR 2001 Kant HCR 1592 : 2001 (3) Rec Cr R 459 : 2001 Cr LJ 2822 (Kant)].

Unless prejudice is shown to have been caused to the accused, investigation cannot be termed as impartial merely because the investigation has been conducted by the same person who registered the case [State v AN Dhyaneswaran, 2004 Cr LJ 2802 (Mad) : 2004 Mad LJ (Cri) 392 : 2004 (4) Rec CrR 84].

Where the allegations in the FIR constituted cognizable offence which required investigation by police and the

Page 30 of 34 [s 156] Police officer’s power to investigate cognizable case.— offence was not only serious in nature but also seemed to have been committed to defraud the state, it was held that the plea of innocence could not be looked into when the investigation was in embryo. It was also held that the writ Court should be loathe in interfering with the investigation [Deepak Jain v State of UP, 2003 Cr LJ NOC 190 : 2003 All LJ 1296 : 2002 (2) Bank CLR 1615 ].

Where the allegations are simple and the Magistrate is empowered to investigate, direction to police is not proper. [Arvindbhai Ravjibhai Patel v State, 1998 Cr LJ 463 : 1998 (1) Crimes 351 : 1997 (2) Guj LR 1572 (Guj)].

Mere allegation that local police would not investigate the case properly does not entitle the accused to pray for handing over the investigation to some other agency [Atique Ahmed v State of UP, 2003 Cr LJ 197 (202) : 2002 All LJ 2554 : 2002 (3) All Cr R 2715 (All)].

The entrustment of the property and the misuse thereof contrary to the agreement being the basic ingredients of an offence of a criminal breach of trust, a complaint which does not disclose the fact which could reveal such basic ingredients of the said offence can hardly be said to be sufficient either for the police authorities to take cognizance thereof, or for the Magistrate to exercise powers under section 156(3) of the Code of Criminal Procedure. [Kishore Kirtilal Mehta v State of Maharashtra, 2008 Cr LJ (NOC) 1149 (Bom) : 2008 (4) AIR Bom R 420 (Bom) : 2008 All MR (Cri) 2645.]

It was alleged that the forged sale deed was executed and forcible possession of the property was taken. Civil suit for cancellation of sale deed was already pending. No police aid was required to make any recovery. It was held that application under section 156(3) was properly rejected [Sajepal v State of UP, 2008 Cr LJ (NOC) 1124 (All) : 2008 (61) All Cri C 496 : 2008 (2) All Cri R 1881].

Offence under section 3 of SC and ST (P.A.) Act are exclusively triable by Sessions Court. The Magistrate can direct investigation under section 156(3), Code of Criminal Procedure, 1973 without taking cognizance [Sudhansu Pasida v State of Orissa, 2004 Cr LJ 4745 : 2004 (23) All Ind Cas 298 : 2004 (98) Cut LT 409 : 2004 (29) Ori CR 351 (Ori)].

The accused would not be allowed to engage DNA forensic expert of their choice either to participate in such investigation or to watch the investigation [Chandan Panalal Jaiswal v State of Gujarat, 2004 Cr LJ 2992 (p 2997) (Guj) : 2004 (3) Guj LR 2726 : 2005 (1) Cur CrR 222]. (In this case necessary directions were given by the Court as regards the procedure to be followed for conducting of DNA finger printing test.)

It is not proper to reject the application under section 156(3) disclosing the commission of cognizable offence for registration and investigation of case [Santosh Kumari v State of UP, 2007 Cr LJ (NOC) 3869 (pp 3873, 3874) : 2007 (5) ALJ 81 (All)].

It is not mandatory for a police officer to obtain the permission of the Court before arresting the accused against whom the FIR is registered in pursuance of the order passed by the Magistrate under section 156(3) [Laxminarayan Vishwanath Arya v State of Maharashtra, 2008 Cr LJ 1 (12) (Bom-FB) : 2007 (2) Bom Cr R (Cri) 383 : 2007 (5) Mah LJ 7 (Bom) : 2007 All MR (Cri) 2886].

Where the application under section 156(3) and medical report prima facie made out a case for house-trespass, wrongful confinement and gang-rape, was filed direct to the police to register and investigate a case, it was held that the Magistrate at that stage would not delve into the controversy whether the allegation are true or false [Sunita v State of UP, 2007 Cr LJ (NOC) 843 : 2007 (5) All LJ 120]. [s 156.38] Right of accused of being heard against order passed under Section 156(3).— Revision at the instance of proposed accused against the order passed under section 156(3), Code of Criminal

Page 31 of 34 [s 156] Police officer’s power to investigate cognizable case.— Procedure, 1973 directing the police to investigate the case after lodging the FIR is not legally maintainable and then proposed accused have no right to challenge such order.

The impugned order was passed under chapter XII, Code of Criminal Procedure, 1973 at pre-cognizance stage. Order passed under section 156(3), Code of Criminal Procedure, 1973 through a judicial order is administrative in nature. Such order cannot be challenged by the proposed accused by means of revision or moving an application under section 482, Code of Criminal Procedure, 1973. No accused can stop the registration of FIR against him [Ram Naresh Chaudhry v State of UP, 2008 Cr LJ 1515 (p 1517) (All) : 2008 (2) All LJ 55 : 2008 (60) All Cri C 476].

Order for registration of first information report cannot be challenged by filing petition under section 482, Code of Criminal Procedure, 1973. It can be challenged by filing petition under Article 226 of the Constitution [Harpal Singh v State of UP, 2008 Cr LJ (NOC) 817 (All) : 2008 (3) All LJ 17 : 2008 (61) All Cri C 236].

Accused has no right to be heard when the Court passes orders for registration/ investigation of the case and he cannot challenge the said order [Gulam Mustafa v State of UP, 2009 Cr LJ (NOC) 120 (All); Siya Ram Agrahari v State of UP, 2008 Cr LJ 2179 (2181) (All) : 2008 (2) All LJ 613; Ramwati v State of UP, 2008 Cr LJ (NOC) 1125 (All)].

The proceedings under section 156(3), Code of Criminal Procedure, 1973 are at a pre-cognizance stage and in these proceedings, the accused has no right to appear and to take part. It is a matter between the complainant and the Court and if the Court finds that a prima facie cognizable case is made out, it can direct for registration and investigation of the case [Ravendra alias Hawaldar v State of UP, 2008 Cr LJ 1986 (1987) : 2008 (2) All LJ 797 : 2008 (60) All Cri C 933].

Order for registration of FIR cannot be challenged by filing petition under section 482, Code of Criminal Procedure, 1973. It can be challenged by filing petition under Article 226 of the Constitution [Harpal Singh v State of UP, 2008 Cr LJ (NOC) 817 (All) : 2008 (3) All LJ 17 : 2008 (61) All Cri C 236].

It was alleged that the accused had prepared forged BPL ration cards in large numbers and the order for summoning accused was passed. Held, as allegations were of serious nature, investigation under section 156(3) was required and the accused being public servants, previous sanction under section 197 for their prosecution was not obtained, the order summoning accused was vitiated and the case was remanded [Rajesh Kumar v State of UP, 2008 Cr LJ (NOC) 1271 (All) : 2008 (5) ALJ 1 : 2008 (62) All Cri C 147]. [s 156.39] Transfer of investigation.— Notice in Form 95 was issued to the complainant by the Magistrate before passing orders on his petition based on final report filed by police, but the complainant refused to receive the notice. The version of the complainant that he had no knowledge of the filing of report by the police cannot be believed. Application for transfer of investigation filed by the complainant is not maintainable. Further if the complainant is aggrieved by the order, he ought to have filed either a revision or an appeal before the Superior Court. [VR Chelladurae v T Rajasekar, 2006 Cr LJ 4130 (4134) (Mad).]

Without entering into the allegations leveled by either of the parties, it would be prudent and advisable to transfer the investigation to an independent agency. [Narmada Bai v State of Gujarat, 2011 Cr LJ 2651 (p 2665) (SC). (Rubbabuddin Sheikh v State of Gujarat, AIR 2010 Cr LJ 3175 , relied on)]. [s 156.40] Sanction.— The Special Judge/Magistrate is not justified in referring a private complaint made under section 200 Code of Criminal Procedure, 1973 for investigation by the Deputy Superintendent of Police in exercise of powers conferred under section 156(3) Code of Criminal Procedure, 1973 without the production of a valid sanction order under section 19 of the Prevention of Corruption Act, 1988 [Anil Kumar v MK Aiyappa, (2013) 10 SCC 705 : 2014 Cr LJ 1 ].

Page 32 of 34 [s 156] Police officer’s power to investigate cognizable case.— [s 156.41] Counter version.— When the opposite party comes with a counter version, it would be proper if the counter case is also investigated and further proceedings be taken in the case [Rameshwar v State of UP, 2008 Cr LJ (NOC) 106 (All)]. The Magistrate can, on petition under section 156(3) direct registration and investigation of a counter version if the facts and circumstances warrant it [Sumitra Devi v State of UP, 2007 Cr LJ (NOC) 414 : 2007 (3) ALJ 398 ; see also Shakuntala Devi v State of UP, 2009 Cr LJ (NOC) 127 (All)].

The Magistrate can invoke his power under section 156(3), Code of Criminal Procedure, 1973 without taking cognizance of the offence which may be exclusively triable by a Court of Session or Special Court [Damodar Sharma v Nathuram Jatao, 2008 Cr LJ (NOC) 266 (MP) : 2007 (2) MPLJ 490 : 2007 (2) Crimes 432 : 2007 (2) MPHT 111].

When the Court refers the petition of complaint to the police for investigation under section 156(3) without taking cognizance, the police would be under a statutory duty to carry on the investigation and complete the same. In the instant case the CJM instead of allowing the investigation being conducted by the police to come to any logical end, treated the same as report submitted under chapter XV even though the report submitted under chapter XV stands on a different footing from the report submitted under chapter XII. Such an approach of adopting one procedure initially and then switching over to the next one and passing a hybrid composite order is contrary to the procedure laid down in the Code [Santosh Kumar Himatsingka v Snowlion Automobiles Ltd, 2007 Cr LJ 2351 (p 2357) : 2007 (5) AIR Bom R 161 (NOC) (Sikk)].

Although charge-sheet had been filed by the State of Gujarat after a gap of 3½ years after the incident, that too after the pronouncement of judgment in Rubbabuddin Sheikh v State of Gujarat, and considering the nature of crime that had been allegedly committed not by a third party but by the police personnel of the State of Gujarat, the investigation conducted and concluded by the State cannot be accepted. In view of various circumstances highlighted and in the light of involvement of police officials of State of Gujarat and police officers of two States, it would not be desirable to allow the Gujarat State Police to continue with the investigation. CBI was directed to take investigation [Narmada Bai v State of Gujarat, 2011 Cr LJ 2651 (pp 2665, 2666) (SC)]. [s 156.42] Statement of Investigating Officer—Use of.— Even in the course of investigation if signed statement is obtained from witnesses, that by itself does not vitiate the investigation or trial. It is only that the Court must be more cautious while appreciating the evidence of such witnesses in that their signed statements were obtained by the Investigating Officer in the course of investigation. These are matters which the trial Court has to look into, but at the stage of framing charge or in the course of trial of the case. [GS Prakash v State of Kerala, 2011 Cr LJ 3771 (p 3784) (Ker)]. [s 156.43] VLocus standi to challenge direction for investigation.— The prospective accused has no locus standi to challenge a direction for investigation of cognizable case under section 156(3), Code of Criminal Procedure, 1973 before cognizance or issuance of process against the accused. [Father Thomas v State of UP, 2011 Cr LJ 2278 (p 2286) (All)]. [s 156.44] Rejection of application under Section 156(3)—Whether order res judicata .— Order of rejection of application under section 156(3), Code of Criminal Procedure, 1973 does not operate as res judicata and filing of complaint is not barred [Hima Pathak v State of UP, 2007 Cr LJ (NOC) 132 : 2007 (1) ALJ 449 (All)]. [s 156.45] Complaint of commission of offences exclusively triable by Court of Session—Magistrate Causing investigation.— The Magistrate under section 156(3) Code of Criminal Procedure, 1973 has the authority to cause an investigation through police on receipt of complaint petition [Jogendranath Gharel v State of Orissa, 2003 Cr LJ 3953 : 2003 (95) Cut LT 342 : 2003 (24) OCR 787 (Ori)]. [s 156.46] Revision.— An order under section 156(3), Code of Criminal Procedure, 1973 directing the police to register and investigate the case is a judicial order and revision may be against it [Ajai Malviya v State of UP, 2001 Cr LJ 313 (p 315) (All) : 2000 All LJ 2730 : (2000) 41 All CrC 435]; The order of the Magistrate under section 156(3), Code of

Page 33 of 34 [s 156] Police officer’s power to investigate cognizable case.— Criminal Procedure, 1973 directing the police to register and investigate is not open to revision at the instance of person against whom neither cognizance has been taken nor any process issued [Father Thomas v State of UP, 2011 Cr LJ 2278 (p 2291) : (2011) 2 ACR 1457 : (2011) 3 RCR (Criminal) 160 (All)]. Order of Magistrate under section 156(3) should be interfered by Superior Courts only in very exceptional cases [Masuriyadin v Additional Sessions Judge, Allahabad, 2002 Cr LJ 4292 (All) : 2002 All LJ 2100 : (2002) 44 All CrC 248 : 2002 (1) DMC 736].

The alleged accused has no right to challenge the order passed under section 156(3), Code of Criminal Procedure, 1973 at the pre-cognizance stage by a Magistrate and no revision lies against such an order at the instance of the alleged accused under section 397(2), Code of Criminal Procedure, 1973, nor at his instance and application under section 482, Code of Criminal Procedure, 1973 is maintainable [(Rakesh Puri v State of UP, 2006 (56) ACC 910 : 2007 (1) ALJ 169 ; Rekha Verma v State of UP, 2007 (57) ACC 241 : 2007 (1) ALJ (NOC) 123; Rakesh Mohan Sharma v State of UP, 2007(57) ACC 488 : 2007 (1) ALJ (NOC) 124 followed). Suryakant Dubey v State of UP, 2008 Cr LJ 2556 (2557) : 2008 (3) All LJ 564 : 2008 (61) All Cri C 501].

Revision is maintainable against order rejecting application under section 156(3), Code of Criminal Procedure, 1973 [Mangalsen v State of UP, 2010 Cr LJ (NOC) 139 (All)]. [s 156.47] Bias in investigation.— The investigation has to be conducted in an unbiased manner and any omission and commission by the Investigating Officer may result in the miscarriage of justice and prosecution will result in acquittal. [Baljinder Kaur v State of Punjab, AIR 2015 SC (Supp) 583].

There is a very high degree of responsibility placed on Investigating agency to ensure that innocent person is not subjected to criminal trial. The responsibility is coupled with equally high degree of ethical attitude required of an investigating office or an investigating agency to ensure that the investigations are carried out without any bias and are conducted in all fairness not only to the accused person but also to victim of any crime. In the instant case, during investigation, the director of the investigating agency met some of the accused person without the investigating officer or investigating team being present. Such act creates doubt. Therefore the Apex Court observed that the investigation must not only be fair but must also appear to be fair. [Common Cause v UOI, AIR 2015 SC 2361 : 2015 (6) SCC 332 ].

In the instant case, PW-8 conducted the search and recovered the contraband articles and registered the case and the article seized from the appellant was narcotic drug and the counsel for the appellant could not point out any circumstances by which the investigation caused prejudiced or was biased against the appellant. PW-8 in his official capacity gave the information, registered the case and as part of his official duty and later investigated the case and filed charge-sheet. He was not in any way personally interested in the case [S Jeevanathan v State, AIR 2004 SC 4608 : 2004 Cr LJ 3834 : 2004 (5) SCC 230 : 2004 (3) Crimes 109 (SC)]. [s 156.48] Investigation structure—In-depth study by Vigilance Department and CBI required.— It is high time that the State Vigilance Department as well as the CBI made an in-depth study into the above aspects and came out with a fool-proof and legally sustainable “investigation structure” which does not run counter to the provisions in the Code of Criminal Procedure, 1973 or in any manner interfere with the functional autonomy of the officer who is actually conducting the investigation. The above investigating agencies exist for serving the aggrieved and thereby serving the community at large, rather than serving their own masters who need not necessarily be free from other extraneous pressures and considerations. No civilized society can afford to stake the credibility and impartiality of premier investigating agencies which are the ultimate bodies which the Government, Constitutional Courts, and above all, the unsuspecting public can look to for a faultless and impartial investigation. [Antony Cardoza v State of Kerala, 2011 Cr LJ 2107 (p 2118) : (2011) 1 Ker LT 946 (Ker)]. [s 156.49] Power of Special Court to order investigation.— Special Court on receipt of private complaint under section 9(1) of Maharashtra Control of Organised Crimes Act, 1991 has the power to order an investigation under section 156(3) of the Code. Sanction under section 23(2) of the said Act is not sine qua non for taking cognizance of private complaint [Ashok Gyanchand Vohra v State of Maharashtra, 2006 Cr LJ 1270 (Bom)].

Page 34 of 34 [s 156] Police officer’s power to investigate cognizable case.—

The special Judge certainly does have power to refer the complaint before the vigilance for its institution and investigation [Anosh Ekka v State, 2010 Cr LJ 259 (p 261) (Jhar) : 2010 (2) Crimes 315 ]. [s 156.50] High Courts jurisdiction under Section 482, CrPC.— If the Station House Officer refuses to register the complaint reflecting, commission of offences of murder, dowry death, attempt to murder. Where the victim sustained grievous injury, robbery, dacoity, rape and attempt to commit rape, the High Court will have to necessarily give a direction to the Station House Officer to register the case invoking the jurisdiction under section 482, Code of Criminal Procedure, 1973 [G Arokiya Masie v Superintendent of Police, 2008 Cr LJ 4257 (p 4260) (Ker) : 2008 (2) Mad LJ (Cri) 796 : 2008 (1) Mad LW (Cri) 484 ]. [s 156.51] Writ petition.— When cognizable offence is disclosed mala fide allegations are relegated to background as it is a matter falling in realm of police investigation. Hence writ Court has no jurisdiction to go into that disputed question of fact [Ram Prapanna v State, 2007 Cr LJ (NOC) 439 (All) : 2007 (3) ALJ 97 ]. [s 156.52] Power, duties and functions of Police.— The investigating officer is not obliged to anticipate all possible defences and investigate in that angle. In any event any omission on the part of investigating cannot go against prosecution. Interest of justice demands that such acts or omission of the investigating officer should not be taken in favour of the accused or otherwise it would amount to placing a premium upon such omission. [V K Mishra v State of Utterakhand, AIR 2015 SC 3043 : 2015 (9) SCC 588 ]. [s 156.53] Power, duties and functions of Police Patil under Maharashtra Village Police Act, 1967.— The duties, function and powers of the village police patil under the provisions of the Village Police Act do not vest him with the powers which are vested on a police officer under the provisions of Criminal Procedure Code. He is vested with no powers in regard to powers vested in an investigating officer under section 173, Code of Criminal Procedure, 1973 [Rajeshwar v State of Maharashtra, 2009 Cr LJ 3816 (p 3823) (Bom) : 2009 All MR (Cri) 1926 : 2009 (2) Bom CR (Cri) 757 : 2009 (4) Mah LJ 483 ]. [s 156.54] Investigation—Territorial jurisdiction.— The continued desertion of the complainant by the husband demanding her to bring additional dowry or asking her to agree for divorce in the event of her failure to meet such demand would certainly constitute mental harassment and the complainant continued to be subjected to such harassment even while staying at her parental house at Vijaywada where she was forced to take temporary shelter having no other alternative. It was held that as the part of cause of action arose at Vijaywada and the offence alleged under section 498-A, Indian Penal Code, 1860 was found to be continuous offence, the police at Vijaywada was entitled to investigate [Thota Sambasiva Rao v State of AP, 2009 Cr LJ 3679 (pp 3680-81) (AP)]. [s 156.55] FIR not hit by Section 162, CrPC.— In the instant case, the information received by Police Sub-Inspector regarding death of the person was very cryptic. There was not enough information available to him either to get a G.D. entry recorded or to get on FIR lodged. In order to verify the information received the Police Inspector went to the place of occurrence and found the entire house in total darkness. He went round the house and saw blood marks on the wall of the verandah and also in the courtyard and came to learn about the incident by using torch light. When he reached at the place of occurrence even the complainant was not available there but at a later stage they came back and he brought them along with the residents of the house. Held, the action of the Police Officer was not initiation of investigation and, therefore, the FIR recorded thereafter at the Police Station was not hit by section 162, Code of Criminal Procedure, 1973 [Satish Narayan Sawant v State of Goa, 2009 Cr LJ 4655 (p 4661) (SC) : 2009 (4) Crimes 39 : 2009 (3) Bom CR (Cri) 512 ]. End of Document

[s 157] Procedure for investigation.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER XII INFORMATION TO THE POLICE AND THEIR POWERS TO INVESTIGATE

The Code of Criminal Procedure, 1973 CHAPTER XII INFORMATION TO THE POLICE AND THEIR POWERS TO INVESTIGATE [s 157] Procedure for investigation.— (1) If, from information received or otherwise, an officer in charge of a police station has reason to suspect the commission of an offence which he is empowered under section 156 to investigate, he shall forthwith send a report of the same to a Magistrate empowered to take cognizance of such offence upon a police report and shall proceed in person, or shall depute one of his subordinate officers not being below such rank as the State Government may, by general or special order, prescribe in this behalf, to proceed, to the spot, to investigate the facts and circumstances of the case, and, if necessary, to take measures for the discovery and arrest of the offender : Provided that— (a) when information as to the commission of any such offence is given against any person by name and the case is not of a serious nature, the officer in charge of a police station need not proceed in person or depute a subordinate officer to make an investigation on the spot; (b) if it appears to the officer-in-charge of a police station that there is no sufficient ground for entering on an investigation, he shall not investigate the case. 2[Provided

further that in relation to an offence of rape, the recording of statement of the victim shall be conducted at the residence of the victim or in the place of her choice and as far as practicable by a woman police officer in the presence of her parents or guardian or near relatives or social worker of the locality.] (2) In each of the cases mentioned in clauses (a) and (b) of the proviso to sub-section (1), the officer-incharge of the police station shall state in his report his reasons for not fully complying with the requirements of that sub-section, and in the case mentioned in clause (b) of the said proviso, the officer shall also forthwith notify to the informant, if any, in such manner as may be prescribed by the State Government, the fact that he will not investigate the case or cause it to be investigated. [s 157.1] Changes.— Section 157 corresponds to old section 157. [s 157.1.1] CrPC (Amendment) Act, 2008 (5 of 2009).— In sub-section (1) of section 157, a proviso has been inserted after the existing proviso. This newly added proviso provides that in relation to an offence of rape, the recording of statement of the victim shall be conducted either at the residence of the victim or in the place of her choice. It also provides that as far as practicable such recording of statement shall be conducted by a woman police officer in the presence of her parents or guardian or near relatives or social worker of the locality.

Page 2 of 9 [s 157] Procedure for investigation.—

A proviso is added to sub-section (1) so as to provide that in relation to an offence of rape, the investigation shall be conducted at the residence of the victim and, so far as practicable by a woman police officer. It also makes provision for a victim under eighteen years of age to be questioned in the presence of her parents or a social worker of the locality [vide Notes on Clauses, Clause 11]. [s 157.2] Scope and application of section 157.— Section 157 is designed to keep the Magistrate informed of the investigation of cognizable offences so as to be able to control investigation, and if necessary to give appropriate direction under section 159 [Pala Singh v State of Punjab, AIR 1972 SC 2679 : 1973 Cr LJ 59 : (1972) 2 SCC 640 (SC); State of Karnataka v Moin Patel, AIR 1996 SC 3041 : 1996 (8) SCC 167 ]. The section lays down some of the duties, and none of rights, of an officer in charge of police station [Deoman Shamji Patil v The State, AIR 1959 Bom 284 : 1959 Cr LJ 825 : 61 Bom LR 30]. Section 157 requires the recording of definite information about a cognizable offence committed by the accused [Sreedhara Marar Raman Pillay v State of Kerala, AIR 165 Ker 1965 : 1965 (2) Cr LJ 215 : 1965 Ker LT 20 ]. Receipt of information is not a condition precedent for starting investigation [State of UP v Bhagwant Kishore Joshi, AIR 1964 SC 221 : 1964 (1) Cr LJ 140 (SC)]. In considering that whether accusation made in the complaint makes out a case for commission of offence or not, the police while reaching to the prima facie satisfaction of suspecting the commission of cognizable offence cannot ignore the general exceptions as provided under Indian Penal Code, 1860. If on the basis of allegation in the complaint, the case is falling in general exceptions’ it cannot be said that the accusation cannot be termed as an offence [AK Chaudhary v State of Gujarat, 2006 Cr LJ 726 (742) (Guj) : 2006 (3) Crimes 116 ]. Receipt of every information does not start investigation which commences only if some material step is taken in that direction [Re: Tamappa, AIR 1967 Mys 71 : 1967 Cr LJ 565 ]. It requires that if commission of cognizable offence is suspected from “information received” (ie, under section 154) [Jagdami, 14 Cal WN 326] or from other sources, prompt report of it shall be sent by the police officer in charge to the Magistrate having jurisdiction (cf. section 58) and investigation shall be taken up. Where the FIR was actually recorded without delay and the investigation started on the basis of that FIR and there is no other infirmity, delay in receipt of report by the Magistrate does not make the investigation tainted [Pala Singh v State of Punjab, AIR 1972 SC 2679 : 1973 Cr LJ 59 : (1972) 2 SCC 640 (SC); State of Karnataka v Moin Patel, AIR 1996 SC 3041 ]. Arrest is discretionary. The report is intended to keep the Magistrate informed and to enable him to take action under section 159 if necessary. Proviso (b) states that if the police officer thinks that there is no sufficient ground for investigation it need not be done; but sub-section (2) requires that the reasons for not investigating should be given in the report. Investigation may be refused when it would be futile to do so (e.g. delay in giving information), but the officer cannot refrain from entering the information in the station diary on the ground that he intends to launch only security proceedings [Re : Shaik Kalesha, AIR 1957 AP 268 : 1957 Cr LJ 826 : 1956 Andh WR 450]. There should be no time lag between the reception of information and the recording of it [State of Kerala v Samuel, AIR 1961 Ker 99 : 1961 (1) Cr LJ 505 : 1960 Ker LT 666 : 1960 Ker LJ 821 ].

Information from whatever sources (and even an irregular complaint) invests the police officer with a statutory duty to investigate [M Vaidyanathan v The Sub-Divisional Magistrate, AIR 1957 Mad 65 : 1957 Cr LJ 205 : 1957 Mad LJ (Cri) 27].

If the essential requirements of the penal provision are not prima facie disclosed by a FIR, investigation cannot be started and High Court is justified in quashing the proceeding [State of WB v Swapan Kumar Guha, AIR 1982 SC 949 : 1982 Cr LJ 819 : (1982) 1 SCC 561 (SC)].

Where the FIR in regard to a stabbing occurrence in a city lane resulting in death of the victim came into being at about 5.30 p.m. on the very date of occurrence but the sealed envelope containing the special reports of the said incident was received by the Magistrate on the next date at 10 a.m. in the Court, it must be held that the long delay in sending the report threw a reasonable doubt about the genuineness of the time and date of the recording of the first information report. [Lala Ram v The State, 1989 Cr LJ 572 : (1988) 36 DLT 8 : 1988 (2) All CrLR 995 (Del) (per Charanjit Talwar and M K Chawala JJ)].

Where the prosecution had led reliable evidence the veracity of which is not dislodged, mere delay in recording

Page 3 of 9 [s 157] Procedure for investigation.— of FIR and sending it to Magistrate, cannot be a circumstance to discard prosecution case in its entirety [Rabindra Mahto v State of Jharkhand, 2006 Cr LJ 957 (p 963) (SC) : AIR 2006 SC 887 : 2006 (1) Crimes 97 ]. [s 157.3] Report by police—Delay in sending report.— The provisions for making report to the Magistrate is not directory but obligatory and merits enforcement at the stage of the investigation. Its non-compliance would not render the investigation without jurisdiction, but if such non-compliance is brought to the notice of the Court it would direct police to comply even at the stage of investigation [Kesoram Industries, 78 Cal WN 121]. The police should not cause any delay in sending FIR to the Magistrate who should take notice of it as soon as it reaches him [Omprakash Singh v State of Punjab, AIR 1976 SC 1983 : (1976) 4 SCC 369 : 1976 Cr LJ 1757 ; Pappu Singh v State of Bihar, 2011 Cr LJ 2046 (Pat)]. Delay in dispatch of FIR to the Magistrate is not a circumstance which can throw out the prosecution case in its entirety [Sarwan Singh v State of Punjab, AIR 1976 SC 2304 : 1976 Cr LJ 1757 : (1976) 4 SCC 369 (SC); Aniruddin v State of Kerala, 2003 (4) Crimes 366 (Ker)]. Delay on sending the copy of FIR to Magistrate cannot by itself justify conclusion that investigation was tainted. [Anil Rai v State of Bihar, AIR 2001 SC 3173 : 2001 Cr LJ 3969 : 2001 (7) SCC 318 : 2001 (3) Crimes 458 (SC); Ediga Jagannadha Gowd v State of AP, 2004 Cr LJ 452 (AP); Poor Singh v State of MP, 2004 Cr LJ 3180 : 2004 (2) MPLJ 561 (MP)]. Extraordinary delay in sending FIR is a circumstance providing a legitimate basis for suspecting that the FIR was recorded much later affording sufficient time to introduce improvements and embellishments and set up a distorted version of the occurrence [Ishwar Singh v State of UP, AIR 1976 SC 2423 : 1976 Cr LJ 1883 : (1976) 3 SCC 356 ; Jai Hari Bera v State of Bihar, 2003 Cr LJ 2188 (2195) (Jhar) : 2003 (2) JLJR 235 : 2003 (2) East CrC 314 ]. Though there was a great delay in sending FIR to the Court but the Court was satisfied by the reasons produced for the delay. Therefore, the High Court corroborated the opinion that impugned delay was detrimental to the prosecution case [Yashpal v State of Rajasthan, 1995 Cr LJ 2038 ]. Non-sending of report to the Magistrate does not constitute a ground to throw out a prosecution case but casts some shadow on the case [Mahabir Singh v State, 1979 Cr LJ 1159 (Del)]. Failure to send report does not vitiate trial [Hafiz, AIR 1931 P 150; see however, Dalach, 11 Cr LJ 498]. Where number of victims is large, the delay of few hours in sending copy of FIR to the Magistrate would not be fatal [Gurdev Singh v State of Punjab, 2003 Cr LJ 3764 (SC) : AIR 2003 SC 4187 : 2003 (3) Crimes 242 : (2003) 7 SCC 258 ]. Where no question is asked to the investigating officer as to the reason for the alleged delayed dispatch of FIR, no adverse inference would be drawn [Sunil Kumar v State of Rajasthan, 2005 Cr LJ 1402 (SC) : AIR 2005 SC 1096 : (2005) 9 SCC 283 : 2005 (1) Cur CrR 109].

So long as the defence is not able to establish from the records by cogent evidence that there was any delay in sending the FIR to the Magistrate it cannot be held that there was any such delay [Satish Narayan Sawant v State of Goa, 2009 Cr LJ 4655 (4662) (SC) : 2009 (4) Crimes 39 : 2009 (3) Bom CR (Cri) 512 ].

It is true that in all cases the delay in transmitting the FIR and its reaching the Magistrate late is not fatal to the prosecution. However, when there is some doubt with respect to genesis of the complaint, the surest safeguard would be for the complaint to be received by the Magistrate expeditiously. When there is considerable doubt the delay in the FIR reaching the Magistrate would have bearing on the veracity of the prosecution case [Chikkrangaiah v State of Karnataka, 2009 Cr LJ 4667 (4673) (SC) : 2009 (12) Scale 146 ].

In sending the copy of the FIR to Magistrate, every delay is not fatal but unexplained inordinate delay in sending the FIR to Magistrate may affect the prosecution case adversely [Bhajan Singh v State of Haryana, AIR 2011 SC 2552 : (2011) 7 SCC 421 : (2011) 2 SCC (Cri) 241 ].

However, where the plea of delay in forwarding the report was neither raised before the Trial Court nor before the High Court, it was held that the plea cannot be raised for the first time before the trial Court [Surajit Sarkar v State of WB, AIR 2013 SC 807 ].

The failure to forward a copy of the FIR to Magistrate, where no explanation is given by the prosecution, would cast shadow on the prosecution case. Thus, where material contradictions in statements of prosecution witness existed and serious doubt about the evidence regarding the recovery of weapons of offence was raised, the combined effect of all these factors would make the prosecution case doubtful [Shivlal v State of Chhattisgarh, AIR 2012 SC 280 : (2011) 9 SCC 561 : 2011 (10) Scale 577 ].

Page 4 of 9 [s 157] Procedure for investigation.— Where the constable carrying the FIR reached the Court premises within two hours of the lodging of FIR, but had to wait till the Court’s sitting hour was over, it was held that the reaching of the FIR before Magistrate in 6 hours on the same day cannot be said to be an inordinate delay [Mookkiah v State, AIR 2013 SC 321 ].

Where there is delay in sending the FIR to the Court it can give rise to an inference that the FIR is ante-time [Hari v State of Rajasthan, 2010 Cr LJ 308 (311) (Raj)].

The incident had allegedly occurred in the day-time of 23 July 1979, the distance of police station was about 8 miles. The deceased was taken in bullock cart to the hospital by his wife who was an illiterate lady and written report was allegedly given at 7.30 pm. Ex P/2 also showed that there was a dispatch number as well in the name of the Court where it was sent and had been received on the next morning at 10.30 am. It was held there was no such circumstances to doubt and throw the entire prosecution case. [Nasaru v State of Rajasthan, 2010 Cr LJ 4016 (p 4019) : RLW 2011 (1) Raj 51 (Raj)].

The expression “forthwith” obviously cannot mean that the prosecution is required to explain every hour’s delay in sending the FIR to the Magistrate of course, the same has to be sent with reasonable despatch which would mean within a reasonably possible time in the circumstances prevailing. [Alla China Apparao v State, (2002) 8 SCC 440 ; Bodhraj v State, (2002) 8 SCC 45 .] In the present set up no police station can be expected to have only one case to look into. A little delay in lodging the FIR with the Magistrate should not viewed from an unrealistic angle [Harpal Singh v Divender Singh, (1997) 6 SCC 660 : 1997 (3) Crimes 23 (SC); See also Ashok Kumar v State, AIR 2002 SC 1468 : 2002 Cr LJ 1844 : (2002) 4 SCC 76 : 2002 (2) Crimes 9 (SC)].

In a Supreme Court case first information report was recorded in evening but copy of the same was sent to Magistrate directly in the Court next day. It cannot be said that there was delay. Prosecuting case could not be thrown out [State v Mohan Singh, 2006 Cr LJ 1691 : AIR 2006 SC 1410 : 2006 (2) Crimes 58 : (2006) 9 SCC 272 ].

Where no objection was raised during trial about not sending of report to the Magistrate and also there was no cross examination of IO on behalf of the accused, it was held that accused could not be benefited on his count [Ganesha v State, 2006 Cr LJ 3604 (MP) : 2006 Cri LR (MP) 583].

The delay in sending a special report to Magistrate may by itself not render the whole of the prosecution case as doubtful but shall put the Court on guard to find out as to whether the version stated in the Court was the same version as earlier reported in the FIR or was the result of deliberations involving some other persons who were actually not involved in the commission of the offence. Delay, is to be explained by the prosecution. [Bijoy Singh v State, 2002 Cr LJ 2623 (SC); Som Bhat Singh Munda v State of Bihar, 2005 Cr LJ 1776 (Jhar) : 2004 (4) JLJR 526 : 2005 AIR Jhar HCR 593; State of J&K v S Mohan Singh, 2006 Cr LJ 1691 (1694) (SC) : 2006 (2) Crimes 58 : AIR 2006 SC 1410 : (2006) 2 SCC (Cri) 484 .] Where in the copy received by the Magistrate there is not seal, it does not make any difference where there is an endorsement made by the Chief Judicial Magistrate. [Sanganabasappa v State, AIR 1994 SC 848 : 1996 Cr LJ 606 : 1994 Supp 1 SCC 583 : 1994 (1) Crimes 33 (SC)].

A mere delay in reaching of the FIR to the Magistrate itself would not be fatal to the prosecution case, but coupled with other facts may show manipulation and may be taken as prejudicial to the prosecution case [State of Gujarat v Rajubhai Dhamirbhai Bariya, 2004 Cr LJ 771 (800) (Guj) : 2004 (1) Guj LR 404 : 2004 (2) Cur CrR 235]. The delay in sending FIR to the Magistrate is not fatal unless the false implication of the accused in shown. [State v Mallikarjuna, 2007 Cr LJ 910 (916) (Kant-DB)].

If a delay is caused in sending the report to the Magistrate which the prosecution fails to explain by furnishing reasonable explanation, then ipso facto, the same cannot be taken to be a ground for throwing out the prosecution case if the same is otherwise trustworthy upon appreciation of evidence which is found to be

Page 5 of 9 [s 157] Procedure for investigation.— credible—However, an adverse inference may be drawn against the prosecution and the same may affect veracity of the prosecution case, more so when there are circumstances from which an inference can be drawn that there were chances of manipulation in the FIR [Alla China Apparao v State of AP, AIR 2002 SC 3648 : 2003 Cr LJ 17 (20) : 2002 (8) SCC 440 : 2003 (1) Crimes 23 (SC)].

Special report sent to the Magistrate within 2 hours and 20 minutes of lodging of FIR can be said to be sent promptly [Amar Singh v Balwinder Singh, AIR 2003 SC 1164 : 2003 Cr LJ 1282 : 2003 (2) Crimes 186 (SC)].

In the instant case, the FIR was recorded on Saturday at 7 a.m. The IO prepared panchanama of place of incident and made arrangements for sending dead body of the deceased for post-mortem examination. October 16 and October 17 were public holidays. The respondent was absconding under the circumstances, when the copy of the FIR reached the Court of Magistrate on October 19, it cannot be said that there was unreasonable delay in sending report under section 157, Code of Criminal Procedure, 1973 [State of Gujarat v Miyama Abhran Mamod, 2004 Cr LJ 3471 ].

Where the FIR was recorded without delay and the investigation proceeded on its basis and no infirmity in the investigation was brought out, mere delay in receipt of the FIR by the Magistrate cannot be held to be fatal to prosecution [Balram Singh v State of Punjab, AIR 2003 SC 2213 : 2003 (2) Crimes 43 : 2004 SCC (Cr) 149 : 2003 (4) Scale 561 ; J Raghuraj Goud v Sub-Inspector of Police, Kukapathy, 2005 Cr LJ 1301 (p 1305) (AP) : 2005 (2) Andh LT 601 ; Jasbir Singh v State of Haryana, 2002 Cr LJ 2975 (p 2976) (SC) : AIR 2002 SC 2386 : JT 2001 (10) SC 552 ; Pappu Singh v State of Bihar, 2011 Cr LJ 2040 (Pat)].

Where the Court of the Magistrate was situate at a distance of 60 kms, and there were winter holidays in Courts, the delay of one day in sending copy of FIR to the Magistrate was of no consequence [Ramdeo v State of Rajasthan, 2003 Cr LJ 1680 : 2003 (1) WLC 34 ; MG Ponappa v State of Karnataka, 2003 Cr LJ 1728 (1734) (Kant) : 2003 (2) Kant LJ 408 : 2003 Kant HCR 754].

In a case where the IO explained that he immediately proceeded to apprehend the accused who had absconded after the commission of the offence, the delay of 24 hours in despatch of copy of the FIR to Magistrate stood explained [Pradeep Kumar v State, 2003 Cr LJ 4200 (J&K)].

Where the delay of 4 days in sending FIR to the Magistrate was not explained, the FIR was held ante-timed and conviction of accused was set aside [Nand Kishore Singh v State of Jharkhand, 2005 Cr LJ 389 (398) (Jhar) : 2005 (1) DMC 666 : 2004 (4) JLJR 686 ].

The incident took place on Saturday. The investigation continued upto 7.30 p.m. on the same day and, therefore it could not be forwarded on the same day. The next day being Sunday, copy was forwarded on Monday. There is nothing in section 157 to indicate that copy should be forwarded after completing investigation. There is no infirmity in the prosecution case and there is no adverse effect of delay in forwarding the FIR on the prosecution case [Ramswaroop v State of MP, 2006 Cr LJ 475 (p 481) (MP)].

In the present case the occurrence took place on 23rd July at 6 p.m., the FIR was lodged at 7.20 p.m. and a copy of the same was received by the Magistrate on the next day at 12.45 p.m. The Apex Court held that the copy of FIR was sent to the Magistrate at the earliest on the next in the Court and there was no delay [State of Jammu and Kashmir v Mohan Singh, 2006 Cr LJ 1691 (p 1694) (SC) : 2006 (2) Crimes 58 : AIR 2006 SC 1410 : (2006) 2 SCC (Cr) 484].

Report is not a public document and the accused is not entitled to a copy before trial [Argumugam, 20 M 189207 per Subramaniya Ayyar J, dissenting; see now section and State of Madras v G Krishnan, AIR 1961 Mad 92 FB : 1961 (1) Cr LJ 382 : 73 Mad LW 713 : 1961 (1) Mad LJ 65 post]. Report to the Magistrate is not

Page 6 of 9 [s 157] Procedure for investigation.— relevant under section 35, Evidence Act [Miyana Hasan Abdulla v State of Gujarat, AIR 1962 Guj 214 : 1962 (2) Cr LJ 55 : (1962) 3 Guj LR 107]. Reports of investigation (see sections 157, 167, 168, 173].

Non-compliance with section 157, Code of Criminal Procedure, 1973 is an infirmity which when complied with other infirmities might extend benefit of doubt to the accused. Non-compliance of section 157, Code of Criminal Procedure, 1973 in itself is not sufficient to discard the prosecution case [Porr Singh v State of MP, 2004 (4) Cr LJ 3180 (MP) : 2004 (2) MPLJ 561 ; Rajendra Singh v State of MP, 2004 (4) Crimes 568 (MP)].

Where neither any objection was raised during trial that intimation of offence was not sent to the Magistrate concerned nor any question was put to the Investigating Officer in this regard, it will be presumed under section 114(e), Evidence Act that all the judicial and official acts have been regularly performed unless it is not rebutted.

In the instant case the FIR was sent to the Magistrate after 24 hours. The defence did not put any question to the Investigating officer, thus no explanation was required to be furnished by him on this issue. Prompt lodging of the FIR was proved from the chik report and the statement of the complainant under section 161, Code of Criminal Procedure, 1973 which was recorded immediately after lodging FIR. The FIR contained all the essential features of the prosecutions case including names of eye-witnesses, time and place of incident, name of the victim motive, name of the accused persons, weapons in their hands and manner of assault. All these things lend a seal of assurance not only to the presence of eye-witness at the place of incident, but also to the participation of the accused persons in the crime. Courts attach great importance to the prompt lodging of FIR and prompt interrogation of a witness under section 161, Code of Criminal Procedure, 1973 as the same substantially eliminates the chances of embelishment and concoction (delay held not fatal to prosecutions case). [Brahm Swaroop v State of UP, 2011 Cr LJ 306 (313) : AIR 2011 SC 280 : (2011) 6 SCC 288 ].

Delay in sending copy of the FIR to Magistrate would not vitiate trial if sufficient explanation is given [Sampath v State, (2007) 1 Mad LJ (Cr) 730 (Mad)].

Delay in sending an FIR is not fatal where the FIR has been recorded and investigation also started without delay. [Ram Bilesh Malakar v State of Bihar, 2009 (1) Pat LJR 484 (Pat)].

There was a delay in sending the FIR to the Magistrate. But there was no material on record to show or suggest that the FIR was tampered or it was fabricated at a later date by ante-dating it. Nor there was any material showing delay in sending the FIR or delay in placing it before SDM. The prosecution case cannot be doubted. [Susanta Das v State of Orissa, AIR 2016 SC 589 : 2016 (4) SCC 371 ].

There was a delay of one day in sending the FIR, however, it was proved that there was no motive in manipulating the FIR. Moreover the prosecution case was strongly backed by the testimony of six eyewitnesses. The Apex Court held that no prejudice was caused due to the procedural lapse in not sending the FIR promptly. [Bimla Devi v Rajesh Singh, AIR 2016 SC 158 ].

Where the FIR was recorded without delay and investigation started on that basis, the delay in sending the FIR would not render prosecution case unreliable. Investigation is not tainted in the absence of prejudice to accused. [Yogesh Singh v Mahabeer Singh, AIR 2016 SC 5160 : 2016 (10) Scale 219 ]. [s 157.4] Interference by Court.— The Investigating Officer has power to arrest the person named as accused in the FIR disclosing commission of cognizable offence. [Swami Sachidanand Sakshi Maharaj (Dr) v State of UP, 2001 Cr LJ 320 : 2000 All LJ 2742 : (2001) 43 Cr C 379 (All)]. Interference by the Court at the investigation stage is not called for. It is, however, equally true that the investigating agency cannot be given the latitude of protracting the conclusion of the investigation without any limit of time in the interest of speedy trial [Mahendra v State, (2002) 1 SCC 149 (relying on AR Antulay v RS Nayak, (1992) 1 SCC 279 ]. The Court should not stay the arrest of the accused

Page 7 of 9 [s 157] Procedure for investigation.— only on the ground that the accused is a respectable person being siting Member of Parliament. [Swami Sachidanand Sakshi Maharaj (Dr) v State of UP, 2001 Cr LJ 320 : 2000 All LJ 2742 : (2001) 43 All Cr C 379 (All)]. Except on proof that the police acted in bad faith, the High Court would not interfere with investigation [VS Krishnan v State of UP, 2000 Cr LJ 4498 : 2000 All LJ 2154 : 2000 (58) All Cr R 1675 (All)].

The Courts’ interference would be justified where the proceedings are more an abuse of process of law and harassment of petitioners, eg where on failure of the petitioners to produce the accused, police registers the case against the petitioners under sections 176, 420 and 468, Indian Penal Code, 1860 and tries to arrest them [Geetha v Sub-Inspector of Excise, Modigere, 2007 Cr LJ 3496 (p 3501) : 2007 (4) Kant LJ 691 (Kant)]. [s 157.5] “To investigate the facts &c”.— Meaning of “investigation” [see section 2(h), ante]. Investigation may begin before going to the spot. Under proviso (b) if offence is not serious it need not be on the spot [Monimohan 35 Cal WN 623]. Under the proviso the police officer may refuse to go to the spot for investigation, but refusal to investigate is not contemplated.

Police can during investigation record the statements of suspects under section 162. If necessary, arrest must be made but detention without arrest is illegal [Dinanath, 41 Cr LJ 757].

Each and every suggestion of the defence at the investigation need not lead the investigation to follow it. Had there been a counter version and the suggestion was that the Investigating officer had wrongly not recorded a cross FIR it might have been a different matter [Kirtan Bhuyan v State of Orissa, AIR 1992 SC 1579 : (1992) Cr LJ 2325 (SC)].

Section 157(1) requires an officer in charge of a police station who “from information received or otherwise” has reason to suspect the commission of an offence—that is a cognizable offence, he can investigate the matter under section 156. The expression “reason to suspect” as occurring in section 157(1) is not qualified as in section 41(a) and (g) of the Code, wherein the expression “reasonable suspicion” is new. Therefore, what section 157(1) requires is that the police officer should have “reason to suspect” with regard to the commission of an offence [UOI v W.N. Chadha, AIR 1993 SC 1082 : 1993 (1) Crimes 308 : 1993 Cr LJ 859 (SC) (per S Ratnavel and K Jayachandra Reddy JJ].

When the Investigating Officer is not deciding any matter except collecting the materials for ascertaining whether a prima facie case is made out or not and a full enquiry in case of filing a report under section 173(2) follows in a trial before the Court or Tribunal pursuant to the filing of the report, it cannot be said at that stage the rule of audi alteram partem superimposes an obligation to issue a prior notice and hear the accused which the statute does not expressly recognise. The question is not whether audi alteram partem is implicit, but whether the occasion for its attraction exists at all. The provisions relating to the investigation under chapter XII do not confer any right of prior notice and hearing to the accused [UOI v WN Chadha, AIR 1993 SC 1082 : 1993 (1) Crimes 308 : 1993 Cr LJ 859 (SC) (per S Ratnavel Pandian and K Jayachandra Reddy JJ].

In the instant case, the police authorities received information on the basis of a complaint filed by the petitioner and countersigned by the member of the vigilance committee. The Executive Magistrate overlooked that it was one of the functions of the vigilance committee to ascertain whether any offence of which cognizance can be taken under the Act is committed and then to take requisite action for punishment of the offender. The order of the Executive Magistrate demonstrates unawareness of the basic concept of the Cr PC as well as of the Act. Hence the impugned order cannot be sustained [Govind Shanwar Chatal v Dattalya Woman Dhanu Shali (1992) Cr LJ 1228 Bom : 1992 (2) Bom CR 569 (DB)]. [s 157.6] Defective investigation.— Lapses with regard to arrest of accused and seizure of material objects are not so serious as to discard the trustworthy testimony of all eye-witnesses. [State of Karnataka v Ramappa Bhimappa Kathmani, 2006 Cr LJ (NOC) 446 (Kant) : 2006 (4) AIR Kant R 350]. In cases of defective investigation the Court has to be circumspect in evaluating the evidence but it would not be right in acquitting the accused person solely on account of the defect and to do so would tantamount to playing into the hands of the investigating officer

Page 8 of 9 [s 157] Procedure for investigation.— [Kernel Singh v State of MP, (1995) 5 SCC 518 ; Paras Yadav v State of Bihar, AIR 1999 SC 644 : 1999 Cr LJ 1122 : (1999) 2 SCC 126 and Ram Bihari Yadav v State of Bihar, AIR 1998 SC 1850 : 1998 Cr LJ 2515 : (1998) 4 SCC 517 : 1998 (2) Crimes 254 relied on; Amar Sinigh v Balwinder Singh, AIR 2003 SC 1164 : (2003) 2 SCC 518 (SC); Devi Dutt v State of Uttranchal, 2006 Cr LJ 1748 (Uttra) : 2006 (4) All LJ (NOC) 684; Kishore Shinde v State of Maharashtra, 2006 Cr LJ 2616 (Bom)].

Defective investigation would not lead to total rejection of prosecution case [Rotash v State of Rajasthan, 2007 Cr LJ 758 (SC)].

When evidence in a case under section 304, Indian Penal Code, 1860 makes it clear that death undoubtedly was caused due to ante mortem injury found on person of deceased. Also there was evidence that it was not homicidal death. Ocular evidence clearly proved that death, was caused by the accused. It was held that acquittal of accused solely on ground of defective investigation would not be justified [Karan Singh v State, 2006 Cr LJ 1745 (Chh) : 2006 Cg LJ 382 : 2006 (3) MPHT 1]. [s 157.7] Competent police officer.— Police officer of one station may investigate within the jurisdiction of another station if the accused resides there [Natha, 16 Cr LJ 551]. Police officer who is an eye-witness should not investigate. His evidence should be looked into with great caution [Bhagwan Dayal Piarey Lal v The State, AIR 1968 All 290 : 1968 Cr LJ 1028 ]. Where recoveries have to be effected from different places on the information furnished by the accused, it is not necessary to call in different sets of persons to witness them [HP Administration v Omprakash, AIR 1972 SC 975 : 1972 Cr LJ 606 ]. [s 157.8] Identification tests.— Section 159 is wide enough to include mashirnama as to what was done or seen but not as to what was said. There should be then no difficulty of adducing evidence of identification tests in Court [Mor Md, AIR 1940 SC 168 ]. It has been held that there is no provision in law entitling the accused to demand an identification parade [Re : Sangiah, AIR 1948 Mad 113 : (1948) 49 Cr LJ 89 : 1947 (2) Mad LJ 252 : 60 Mad LW 571-CONTRA : Amar, AIR 1943 L 303; Sajjan, AIR 1945 L 48]. As to identification tests, see Sarkar’s Evidence, 13th Edn, pp 98-101. As to statements by witness at the time of identification parade; see notes to section 162 post. [s 157.9] Sections 157, 173 and 190.— Complainant has locus standi to file revision against discharge of the accused before High Court [Rama Sharma v Pinki Sharma, 1989 Cr LJ 2153 : 1990 PLJR 313 ].

Government interference with the process of investigation is illegal as section 157 Code of Criminal Procedure, 1973 imposes a statutory duty upon the officer incharge of a Police Station [Jay Engineering v State of WB, (1967) 72 Cal WN 441]. [s 157.10] Investigation.— (a) cannot be stopped for the Magistrate but (b) can be stopped for the High Court in writ jurisdiction if mala fide [State of Bihar v PP Sharma, AIR 1991 SC 1260 : (1991) Cr LJ 1438 : 1991 (2) JT 147 : (1991) 2 Crimes 113 ; Dalip Singh v State of Punjab, AIR 1979 SC 1173 : 1979 Cr LJ 700 : (1979) 4 SCC 332 : 1979 SCC (Cri) 968 (SC); State of Punjab v Amarjit Singh, AIR 1988 SC 2013 : 1989 Cr LJ 95 : 1988 (3) Crimes 295 ]. [s 157.11] Transfer of Investigation.— Transfer of investigation back at the place of residence of the wife, de facto complainant’s parental home, which was sought for by petitioner suffering from ill-treatment and demand for dowry by her husband, which continued even at her parental home, where her husband brought her and left her, would be justified [G Sathiyakala v Superintendent of Police, (2007) 1 Mad LJ (Cr) 419 (Mad)]. [s 157.12] Prosecution of Investigating Officer— There was factifious rioting in which deceased was killed by accused in retaliation. The IO misusing his powers of recording the statement of witness under section 161 deliberately manipulated statements to the benefit of accused at the time of the trial. It was held that the IO was guilty of committing offence punishable under section 192, Indian Penal Code, 1860 [Babu alias Thirupathi Babu v State, 2007 Cr LJ 3802 (Kant) : 2007 Kar R 76].

Page 9 of 9 [s 157] Procedure for investigation.—

2

Inserted by the Code of Criminal Procedure (Amendment) Act, 2008 (5 of 2009), section 11 (w.e.f. 31 December 2009).

End of Document

[s 158] Report how submitted.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER XII INFORMATION TO THE POLICE AND THEIR POWERS TO INVESTIGATE

The Code of Criminal Procedure, 1973 CHAPTER XII INFORMATION TO THE POLICE AND THEIR POWERS TO INVESTIGATE [s 158] Report how submitted.— (1) Every report sent to a Magistrate under Section 157 shall, if the State Government so directs, be submitted through such superior officer of police as the State Government, by general or special order, appoints in that behalf. (2) Such superior officer may give such instructions to the officer-in-charge of the police-station as he thinks fit, and shall, after recording such instructions on such report, transmit the same without delay to the Magistrate. [s 158.1] Changes.— Section 158 corresponds to old section 158. End of Document

[s 159] Power to hold investigation or preliminary inquiry.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER XII INFORMATION TO THE POLICE AND THEIR POWERS TO INVESTIGATE

The Code of Criminal Procedure, 1973 CHAPTER XII INFORMATION TO THE POLICE AND THEIR POWERS TO INVESTIGATE [s 159] Power to hold investigation or preliminary inquiry.— Such Magistrate, on receiving such report, may direct an investigation, or, if he thinks fit, at once proceed, or depute any Magistrate subordinate to him to proceed, to hold a preliminary inquiry into, or otherwise to dispose of, the case in the manner provided in this Code. [s 159.1] Changes.— Section 159 corresponds to old section 159 verbatim. [s 159.2] Scope and application of section 159.— The section is intended for use when it is found from the report under section 157 that the police are neglectful of their duties or for some reason unwilling to investigate a case in which the materials are such that there should be an investigation. It does not confer a general power to direct investigation. It can be ordered only on a report of police officer submitted under section 157 ie, a report made before the completion of the investigation and not after its completion. An investigation can therefore be ordered in a case in which the police has under section 157 decided not to investigate [see SN Sharma v Bipen Kumar Tiwari, AIR 1970 SC 786 infra; Abdul Rahman, 32 A 30; Mauli, 4 Cal WN 351; Sarba, 17 Cal WN 824]. The report of police officer or the materials before the Magistrate should be such as to warrant an order for inquiry [see Mokamiji, 1 Cal WN 832]. The inquiry is to be made “in manner provided in this Code”; the Magistrate can therefore proceed under any of the provisions relating to inquiries as circumstances may require. “Such report” refers to report mentioned in section 157 [Pancham Singh v The State, AIR 1967 Pat 416 : 1967 Cr LJ 1677 : 1967 BLJR 411 ].

The section applies only when a report of police officer is received under section 157 and not when a complaint is made direct to the Court in which case the Magistrate should proceed under section 200 et seq [Arula, 12 Cr LJ 463; see Lokenath, 30 C 923]. [s 159.3] “Investigation or preliminary inquiry”.— “Inquiry” [see section 2(g) ante,]. The inquiry that can be held is a preliminary inquiry. So where a report is made by the police of commission of an offence after full inquiry, the Magistrate has no jurisdiction to make further inquiry [Kandhiya, 1899 AWN 87; see Mauli, 4 Cal WN 35, supra]. The Magistrate deputed to make inquiry can also under section 164 (1) record a statement of the witness made before him in the course of police investigation and therefore it is admissible [Harendra, AIR 1925 C 161 : 26 Cr LJ 307]. It is not obligatory on a Magistrate making inquiry under section 159 to record in writing a confession made to him by an accused. It may be proved by his oral testimony [Pedda, 45 M 230; see notes to section 164 post : “Oral confession

Page 2 of 2 [s 159] Power to hold investigation or preliminary inquiry.— before a Magistrate”]. The number of investigations is not limited by law and when one has been completed another may be begun on fresh information received [Mohinder, AIR 1932 L 103].

The expression “on receiving such a report” evidently refers to the receipt of a report contemplated in section 157(2), because the question of directing an investigation by the Magistrate cannot arise in pursuance of the report referred to under sub-section (1) of section 157 intimating that the police officer has proceeded with the investigation either in person or by deputing any one of his subordinate officers [State of Haryana v Bhajan Lal, AIR 1992 SC 604 : 1992 Cr LJ 527 ].

The power of the police to investigate any cognizable offences is uncontrolled by the Magistrate and it is only in cases where the police decide not to investigate that the Magistrate can either direct an investigation or himself proceed or depute a subordinate Magistrate to proceed to enquire into the case. But the Magistrate has no power under section 159, in cases where the police has proceeded with investigation, to stop investigation and direct such magisterial enquiry [SN Sharma v Bipen Kumar Tiwari, AIR 1970 SC 786 ; State v Balaram Singh, AIR 1970 Ori 107 : 1970 Cr LJ 913 ; Pancham, AIR 1967 P 416]. In cases where power of investigation has been exercised by the police mala fide, the aggrieved person can always seek remedy under Article 226 of the Constitution [SN Sharma, supra]. [s 159.4] Delay in completion of investigation.— If any one tries to stall the process of investigation, no efforts would be spared by the Governments be it the centre or the State to ensure that the stumbling block that are raised in the press of investigation are removed forthwith. [Court on its own motion v State of Haryana, 2006 Cr LJ 3472 (3476) (P&H) : 2006 (4) AICLR 287]. [s 159.5] Words “at once proceed”.— The words “at once proceed” occurring in section 159, Code of Criminal Procedure, 1973 qualifies the word “enquiry” so the contention that the Magistrate has got power to proceed to the spot and hold an enquiry is not correct. The section does not confer any power on the Magistrate to conduct any local inspection. [In the matter of MK Thomas, 2006 Cr LJ 3843 (pp 3848, 3849) (Ker)]. [s 159.6] Case exclusively triable by Court of session.— In a case exclusively triable by Court of session, the duty of the Magistrate is to verify whether the investigating officer had complied with the legal requirement and then commit the case to the Court of Session. [In the matter of MK Thomas, 2006 Cr LJ 3843 (p 3849) (Ker)].

End of Document

[s 160] Police Officer’s power to require attendance of witnesses.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER XII INFORMATION TO THE POLICE AND THEIR POWERS TO INVESTIGATE

The Code of Criminal Procedure, 1973 CHAPTER XII INFORMATION TO THE POLICE AND THEIR POWERS TO INVESTIGATE [s 160] Police Officer’s power to require attendance of witnesses.— (1) Any police-officer making an investigation under this Chapter may, by order in writing, require the attendance before himself of any person being within the limits of his own or any adjoining station who, from the information given or otherwise, appears to be acquainted with the facts and circumstances of the case; and such person shall attend as so required: Provided that no male person33[under the age of fifteen years or above the age of sixty five years or a woman or a mentally or physically disabled person] shall be required to attend at any place other than the place in which such male person or woman resides. (2) The State Government may, by rules made in this behalf, provide for the payment by the police officer of the reasonable expenses of every person, attending under sub-section (1) at any place other than his residence. [s 160.1] Changes.— (1) Sub-section (1) corresponds to old section 160 with addition of the words “facts and”.

(2) Sub-section (2) has been added enabling State Government to make rules to provide for payment of reasonable expenses to persons summoned by the police for investigation. [s 160.1.1] Criminal Law (Amendment) Act, 2013 .— Vide this Amendment Act of 2013, in proviso to sub-section (1) for the words “under the age of fifteen years or woman”, the words “under the age of fifteen years or above the age of sixty five years or a woman or a mentally or physically disabled person” have been substituted. Under the proviso to sub-section (1) of section 160, a privilege had been given to a person under the age of fifteen years and a woman that they shall not be required to attend at any place other than their place of residence for recording their statement during investigation. Now through the Amendment Act of 2013, this privilege has also been extended to a male person above sixty-five and a person who is mentally or physically disabled. [s 160.2] Scope and application of section 160.— It empowers a police officer making investigation under Sch 12 to issue a written order requiring the attendance of witnesses (within certain limits). Ordinarily, the police will go to the persons who are acquainted with the facts and circumstances of the case without sending for them. Particularly women should be examined in their houses, instead of bringing them to the Thana [Haladhar, 9 Cal WN 199]. In a case of a complaint against woman, the woman accused was taken to the police station where she stayed and allegedly committed suicide. The procedure adopted by the police in summoning woman accused in police station in connection with the

Page 2 of 3 [s 160] Police Officer’s power to require attendance of witnesses.— non-cognizable offence being irregular, the victim was compensated by awarding suitable monetary benefits [Angammal v State of TN, 2003 Cr LJ 806 : 2003 (2) Rec Cr R 626 : 2002 (3) Mad LT 425 (Mad)].; State v MMT Jay, AIR 2004 SC 2282 : 2004 Cr LJ 2515 : 2004 (5) SCC 729 : 2004 (3) Crimes 136 (SC). Police officer cannot insist on women and juveniles appearing at the police station [Nandini Satpathy v PL Dani, AIR 1978 SC 1025 : 1978 Cr LJ 968 : (1978) 2 SCC 424 ]. The High Court gave direction to the State Government to issue circulars to all the police stations instructing the police officials that the woman accused/witness should not be summoned or required to attend at any police station under section 160 Code of Criminal Procedure, 1973 but they must be enquired only by woman police or in the presence of a woman police at the place where they reside [State v MMT Joy, AIR 2004 SC 2282 : 2004 Cr LJ 2515 : 2004 (5) SCC 729 : 2004 (3) Crimes 136 (SC)]. The proviso forbids the summoning of any male person under the age of fifteen or women of any age (whether pardanashin or not) to the police station. If their statements are to be taken the police must go to their residence. Magistrate cannot issue any process compelling any one to give evidence in a police investigation [Jogendra, 24 C 320]. The section gives no authority to requisition documents. Infringement of the statutory limitation of the section renders the requisition without jurisdiction [Rukmani Debi v Jadu Nath, 1974 Cr LJ 1139 : 77 Cal WN 570 (Cal), Contra : Arvindha S Bhagat v Ramnivas Meena, 2005 Cr LJ 3346 (Bom) : 2005 (2) Bom CR (Cr) 894 : 2005 (4) Mah LJ 41 ].

The repeated questioning of the family members of the accused either at their houses or by calling them to the Police Station was part of investigation process and cannot, per se be considered as harassment or violation of Article 21 [Sube Singh v State of Haryana, 2006 Cr LJ 1242 (p 1251) (SC) : (2006) 3 SCC 178 : AIR 2006 SC 1117 : (2006) 2 SCC (Cri) 54 ]. [s 160.3] Attendance of witnesses.— The police officer making the investigation can enforce the attendance of a person acquainted with the facts and circumstances only if the latter resides within the limits of his own police station or adjoining station [Prisma Investment Pvt Ltd v State of Meghalaya, 2010 Cr LJ 56 (p 59) (Gau) : 2010 (1) Gau LR 74 ]. The order to attend must be in writing. A summons without mention of place, date and time of attendance does not justify a prosecution under section 174, Indian Penal Code, 1860 for non-compliance [Latoor Mal v Emperor, AIR 1948 All 137 (2) : (1948) 49 Cr LJ 109 : 1947 All LJ 584 : ILR (1947) All 848 ]. Failure or refusal to obey oral order is justified [Dinanath, AIR 1940 N 186] and not punishable under section 174, Indian Penal Code, 1860 [Tukaram, 20 Cr LJ 48]; but mere refusal to accept notice is not punishable under section 173, PC [Bahadura, 27 Cr LJ 284].

Persons summoned are bound to obey but in no case can force be used to compel attendance. Nor has the police officer power to arrest or detain for a moment any person whose evidence is required. [Tarinee, 7 WR 3]. No security bond can be taken for production of any one before the police [Chandra, 11 C 77].

The power of summoning witnesses under section 160 in chapter 12 cannot be invoked for any investigation or enquiry in respect of a proceeding under section 145 in chapter 10-D [Re Manicka Reddy, AIR 1968 Mad 225 : 1968 Cr LJ 760 : 1967 Mad LW (Cri) 173 ].

A Police Officer can summon a person residing beyond territorial limits of such Police Station, only exception is in relation to minors. [Anirudha S Bhagat v Ramniwas Meena, 2006 (37) AIR 258 (Bom-DB)].

The investigating machinery can require even a witness to appear at different places where the investigation or part of investigation is required, to be carried out. Of course, any expenditure incurred in such appearance of the witness will have to be provided by investigating machinery [Arun Gulab Gavali v State of Maharashtra, 2006 Cr LJ 2615 (p 2618) (Bom) : 2006 (2) Cur CrR 94]. [s 160.4] “Any person”.— It was held that the section applied to witnesses who might give information as to commission of the offence and not to the offence and not to the accused with a view to his answering the charge against him. He might, if necessary, be arrested any time [Saminatha, 7 M 274 FB; Nga Tha, AIR 1926 R 116, FB; Gola, AIR 1929 N 17, FB; Ratan, 4 Bom LR 644; Umer, AIR 1925 SC 237 ]. It has subsequently been held that “any person” would

Page 3 of 3 [s 160] Police Officer’s power to require attendance of witnesses.— include any person though he may thereafter be accused of the offence [Pakala Narayana, AIR 1939 PC 47 : 66 IA 66 : 18 P 234; see notes to sections 161 and 162 post].

“Any person” mentioned in section 160(1) Code of Criminal Procedure, 1973 means and includes “any accused person” and they can be summoned to appear as witnesses since such summons issued to an accused in a case under investigation by the IO, is not at all violative of Article 20(3) [Pulavar BM Senguttuvas v State, 2004 Cr LJ 558 : 2004 (2) Rec Cr R 805 (Mad)].

A police officer can summon a person residing beyond territorial limits of such police station. Only exception is in relation to minors [Arvindha S Bhagat Ramniwas Meena, 2005 Cr LJ 3346 (p 3351) (Bom) : 2005 (4) Mah LJ 41 : 2005 (2) Bom CR (Cr) 894 ]. [s 160.5] Arrest.— The applicant was called for interrogation during the course of investigation of the Malegaon bomb blast case. The applicant was questioned and interrogated but had not been detained or taken into custody. On her own showing, there was no watch or surveillance when she was in the hotel or lodge, as also when she was admitted in the hospital. The applicant was free to move around and contact everybody. She was in touch with her disciple and was using her mobile phone is undisputed. Once the applicant’s movement were not restricted, nor, she was confined to the ATS office but allowed to go after questioning and interrogation, then, it is difficult to hold that in the garb of interrogating and questioning her, she was taken in custody by the ATS. Assuming that “custody” and “arrest” are synonymous terms, yet, in the facts of this case it is not possible to conclude that the applicant was in custody and arrested by the ATS. [Pragya Singh Thakur v State of Maharashtra, 2010 Cr LJ 3267 (p 3290) (Bom)]. [s 160.6] Sub-section (2).— Provides for the payment of reasonable expenses to every person required to attend according to rules framed by the State Government. [s 160.7] Calcutta police.— As to attendance for examination in an investigation by the Calcutta Police, see section 78 A Calcutta Police Act Reasonable expenses may be paid to a person for such attendance.

As to the restrictions on police power to summon etc. [see State of Gujarat v Shyamlal Mohanlal Choksi, AIR 1965 SC 1251 : (1965) 2 Cr LJ 256 ; Raja Ram v State of Haryana, (1971) 3 SCC 945 : 1972 SCC (Cri) 193 (SC); Nandini Satpathi v PL Dani, AIR 1978 SC 1025 : 1978 Cr LJ 968 : (1978) 2 SCC 424 (SC)].

3

Substituted by the Criminal Law (Amendment) Act, 2013 (13 of 2013), Section 14, for the words “under the age of fifteen years or woman” (w.e.f. 3 February 2013).

End of Document

[s 161] Examination of witnesses by police.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER XII INFORMATION TO THE POLICE AND THEIR POWERS TO INVESTIGATE

The Code of Criminal Procedure, 1973 CHAPTER XII INFORMATION TO THE POLICE AND THEIR POWERS TO INVESTIGATE [s 161] Examination of witnesses by police.— (1) Any police officer making an investigation under this Chapter, or any police officer not below such rank as the State Government may, by general or special order, prescribe in this behalf, acting on the requisition of such officer, may examine orally any person supposed to be acquainted with the facts and circumstances of the case. (2) Such person shall be bound to answer truly all questions relating to such case put to him by such officer, other than questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture. (3) The police officer may reduce into writing any statement made to him in the course of an examination under this section; and if he does so, he shall make a separate and true record of the statement of each such person whose statement he records : 4[Provided

that statement made under this sub-section may also be recorded by audio-video electronic means:] 5[Provided

further that the statement of a woman against whom an offence under section 354, section 354A, section 354B, section 354C, section 354D, section 376, section 376A, section 376B, section 376C, section 376D, section 376E or section 509 of the Indian Penal Code (45 of 1860) is alleged to have been committed or attempted shall be recorded, by a woman police officer or any woman officer.] [s 161.1] Changes.— Section 161 corresponds to old section 161 with the following changes :

(1) In sub-section (2) the word “truly” has been added in order to make it clear that every person is under a legal obligation to speak the truth with legal consequences, ie, liability to punishment under section 193, Indian Penal Code, 1860, if truth is not spoken or to punishment under section 179, Indian Penal Code, 1860 for refusal to answer the question. (2) In sub-section (3) the words “and true” have been added with a view to securing accuracy of the record made by a police officer, since such statement may be used to contradict prosecution witnesses as provided in the proviso to section 162 (1).

Page 2 of 11 [s 161] Examination of witnesses by police.— [s 161.1.1] CrPC (Amendment) Act, 2008 (5 of 2009) .— In section 161, in sub-section (3), a proviso has been inserted by the Code of Criminal Procedure, 1973 (Amendment) Act, 2008 (5 of 2009). Section 161 relates to examination of witnesses by police. The proviso provides for recording of statement of witnesses by police by audio-video electronic means [vide Notes on Clauses, Clause 12]. [s 161.1.2] Criminal Law (Amendment) Act, 2013 .— Under sub-section (3) of section 161, a second proviso has been inserted on the recommendation of Justice J.S. Verma Committee that the statement of a woman, who has been victim of offences enumerated in the proviso shall be recorded by a woman police officer or any woman officer. This has been done to protect a woman victim from the embarrassment of narrating the sexual acts before a male police officer. [s 161.2] Scope and application of section 161.— It is only under this section that a police officer making investigation under chapter 12 can examine witnesses acquainted with the facts of the case (see section 160) and reduce them to writing [Sheru, 20 C 642, 648 : see Vimalabai, AIR 1945 N 8, 17] if he so wishes, but without oath or affirmation as sections 164, 281 do not apply to such examination [Bhagwantia, 15 A 11]. Section 161 does not authorise beating or confining a person with a view to induce him to make a statement [State of AP v N Venugopal, AIR 1964 SC 33 : 1964 Cr LJ 16 (SC); State of Maharashtra v Atma Ram, AIR 1966 SC 1786 : 1966 Cr LJ 1498 ]. Recording of statements is not obligatory [Sub-section (3)]. The statements, if recorded, are not privileged [Sheru, supra] and their use is controlled by section 162. The statements need not be in the form of questions and answers [Bhagwantia, supra] and if recorded, shall not be signed (see section 162). Delay in examination does not necessarily, make the evidence untrustworthy. Investigating officer should be asked specifically about the reason for the delay [Ranbir v State of Punjab, AIR 1973 SC 1409 : 1973 Cr LJ 1120 : (1973) 2 SCC 444 ; Sheo Shankar Singh v State of Jharkhand, 2011 Cr LJ 2139 (SC)]. Unjustified and long unexplained delay on part of investigating officer in recording statement of material eye witness during investigation of murder case will render evidence of such witness unreliable [Balakrushna Swain v State of Orissa, AIR 1971 SC 804 : 1971 Cr LJ 670 : (1971) 3 SCC 192 (SC)]. During the course of interrogation, the accused is entitled to have service of a lawyer of his choice [Nandini Satpathi v PL Dani, AIR 1978 SC 1025 : 1978 Cr LJ 968 : (1978) 2 SCC 424 (SC); Gian Singh v State (Delhi Admn.), 1981 Cr LJ 100 : (1981) 19 DLT 168 : (1981) 83 Punj LR 85 (Del)]. The Court cannot give a binding direction to police to allow advocate to be present which can be granted on advocate’s written or oral application even [Ramlalwani v The State, 1981 Cr LJ 97 : (1980) 18 DLT 141 (Del)]. Relative scope of Article 20 (3) of the Constitution and section 162 (2), as regards accused’s rights of silence and compelled testimony during police interrogation explained [Nandini Satpathi v PL Dani, AIR 1978 SC 1025 : 1978 Cr LJ 968 : (1978) 2 SCC 424 (SC)].

In this case, the High Court held that the accused is entitled to get the copies of the statements recorded under section 161 Code of Criminal Procedure, 1973 along with the copy of dying declaration [Ramesh v State of Maharashtra, 1995 Cr LJ 3424 : 1996 (1) Bom CR 398 (Bombay)].

Illegal investigation does not render statements recorded therein by police officer illegal. Witness resiling from such statement can be cross-examined [Bhanuprasad Hari Prasad Deve Rajuji Gambhirji v State of Gujarat, AIR 1968 SC 1323 : 1968 Cr LJ 1505 (SN Bose, AIR 1968 SC 1292 : 1968 Cr LJ 1484 (SC); HN Rishbud, AIR 1955 SC 196 : 1955 Cr LJ 526 (SC) relied on)].

In a case of dowry death and cruelty it was alleged that the statement of the mother of the victim recorded under section 161 had been torn by the police and a new one was prepared by the police with a view to file false case against the accused. As per the evidence of the mother of the victim it was in fact unsigned paper in which a few lines were written. It was held that the plea is not tenable, moreso, when it was raised for the very first time before the Supreme Court. [Tarabai v State of Maharashtra, AIR 2015 SC (Supp) 424]. [s 161.3] Examination of witnesses.— [“Any Person”]. (See ante, section 160). The words “any person”, which must be read in conjunction with section 162 (where the same words appear), in their ordinary meaning would include any person though he

Page 3 of 11 [s 161] Examination of witnesses by police.— may thereafter be accused of the offence [Pakala Narayana, 66 IA 66 : 43 Cal WN 473, 480 : AIR 1930 PC 47 ; Dinanath, AIR 1940 N 186].

Statements recorded by Investigating Officer of persons residing outside India fall very much within the scope of the word “investigation”—Police officer can record statements of such witnesses—While framing charge the Magistrate can take note of statements of such witnesses—These statements are covered by section 161— Question of treating them as documents does not arise [Vinod Kumar Jain v State through CBI, 1991 Cr LJ 669 : (1990) 42 DLT 186 : (1990) 19 DRJ 121 (per P K Bahri J)].

If the police have evidence against a person to justify arrest, it is improper to record his statement professedly under section 161 preliminary to his arrest [Jadub Das, 4 Cal WN 129, 140 : 27 C 295]. There is also no point in examining the accused for getting any incriminating statement as any statement amounting to confession would be hit by sections 25, 26, Evidence Act.

Where the Investigating Officer did not record the statement of a witness under section 161 Code of Criminal Procedure, 1973, it would not cause prejudice to defence. [Meharban v State of MP, AIR 1997 SC 1538 : 1997 Cr LJ 766 : (1996) 10 SCC 615 : 1997 SCC (Cri) 118 (SC)].

Prompt interrogation without any delay substantially eliminates the chances of adulterated account creeping in the testimony of witnesses. [Ramesh Bhagwan Manjrekar v State of Maharashtra, 1997 Cr LJ 796 : 1997 Bom CR (Cri) 126 (Bom)].

Delay in examination of witnesses by police, by itself, is not fatal to the prosecution. But taken together with other factors which demand explanation, it would have impact on the prosecution’s case. Thus, where the conduct of an eye-witness is unnatural and he was examined by the police after one and a half months and other eye-witnesses did not state his name, the presence of the said eye-witness at the place of occurrence was held to be doubtful [Surajit Sarkar v State of WB, AIR 2013 SC 807 ].

Under section 173(4) of the previous Code the police was bound to supply to the accused free copies of statements but in the present Code under section 173(5) the police shall supply copies of such statements to the Magistrate who under section 207 shall supply the same to the accused free of the cost. Any person present at the examination may take down what the witnesses said [Kristo, 10 C 256, 262].

Prosecution can be allowed to cross-examine its witness only after it declares a witness hostile and transforms itself as an adverse party. Impugned order rejecting prayer suffers no illegality [CBI v Arun Kumar Kaushik, 2007 (1) crimes 95 (All)]. [s 161.4] Statements of witness.— It is not obligatory on the part of the IO to record the statement of witnesses. Statements made by the witness to the police officer during investigation may be reduced to writing if such necessity is felt by him even though such discretion of the IO is not unfettered. Such being the legal position, the recording of statements of witnesses as the dictate of IO cannot be faulted with and for this reason alone the police investigation cannot be held to be defective. Moreso, whenever statement made under section 161, Code of Criminal Procedure, 1973 may also be recorded by audio-video electronic means, as per proviso inserted to section 161, Code of Criminal Procedure, 1973 by the Code of Criminal Procedure, 1973 (Amendment) Act, 2008. At any rate if no contradiction is pointed out in the statement of witnesses in the light of the statement given to the IO nonexamination of the IO is of no effect. [Bhaktu Gorain v State, 2010 Cr LJ 4524 (pp 4534, 4535) : (2011) 1 CHN 629 (Cal)]. [s 161.5] Recording of statement.— There is no question of the trial Court or the Superior Court directing for recording of statements by the IO at the stage of trial that have earlier not been recorded. [Ajay v State of UP, 2010 Cr LJ 2277 (p 2278) (All)]. [s 161.6] Non-recording of statement of eye-witness during investigation.—

Page 4 of 11 [s 161] Examination of witnesses by police.— Though it is not mandatory to record statement of witness during the course of investigation but when the witness was available and cited in the charge-sheet, the prosecution has to explain as to why his statement was not recorded and on what point he was going to be examined especially when he was one of the important eye-witnesses of the incident [Gabbu B Lodhi v State of MP, 2004 Cr LJ 2001 : 2004 (2) All CrLR 428 : 2003 (4) Crimes 348 : 2004 (1) Rec Cr R 859 (MP); See also, Re : Bheemavarapu Subba Reddi, AIR 1948 Mad 23 : 1947 (48) Cr LJ 973 ]. [s 161.7] Delay in sending statement to Magistrate.— In the instant case there was delay in sending the statements of PWs 2 to 4 recorded under section 161, Code of Criminal Procedure, 1973 to the Magistrate. There was a clear explanation available on record that the IO was also in charge of maintaining law and order in the area that got vitiated after two murders in succession leading to a lot of commotion and communal strife. There was no reason to reject the explanation. [Abu Thakir v State of TN, 2010 Cr LJ 2840 (2848) : AIR 2010 SC 2119 : (2010) 5 SCC 91 ]. [s 161.8] Acceptance of statement of witnesses.— In criminal cases, evidence of witnesses can only be accepted, if on the care/substratum of the prosecution case, their statement in the trial Court is consistent with their statement under section 161, Code of Criminal Procedure, 1973 and where it is not the Court would have no compulsion in rejecting it [Munesh v State of UP, 2004 Cr LJ 1529 : 2004 All LJ 432 : 2004 (1) All Cr R 765 : 2004 (13) All Ind Cas 803 (All)]. [s 161.9] Investigation.— Where a person driving a car without license gave a wrong name when questioned by a police officer, it was not put during investigation under section 161 [Lachman, AIR 1929 P 4]. It is doubtful whether a statement by a witness that he knew nothing of the occurrence is not a statement within section 161 [Aseruddin, 53 C 980]. Inquest report by police officer does not come under section 161 [Rajeshwari, 37 Cal WN 732].

Where the statement was made during the course of investigation. Such types of statement cannot be relied upon except for the purpose of contradicting the maker thereof under provisions of law. [Fateh Singh v State, 1995 Cr LJ 88 (All)].

The statements of witnesses of any criminal case which are recorded during the course of investigation, have no evidentiary value at its trial stage [Chimamma v State of Kerala, 1995 Cr LJ 1711 (Kerala)]. [s 161.10] Copy of statement of witness furnished to accused.— Defence is entitled to bring on record the material omissions on the copy of statement of witness furnished to accused as compared to statement made under section 161, Code of Criminal Procedure, 1973 and rely upon the same [Golla Jalla Reddy v State of AP, AIR 1996 SC 3244 : 1996 Cr LJ 2470 : 1996 (8) SCC 565 : 1996 (2) Crimes 242 (SC)].

Omission to supply copy of statement made under section 161, Code of Criminal Procedure, 1973 to the accused by itself does not vitiate the trial [Sukumaran v State of Kerala, 2005 Cr LJ 2385 (Ker) : 2005 (1) Ker LJ 743 : 2005 (3) All CrR 566]. [s 161.11] Sub-section (2).— Section 161(2) read with section 161(1) protects “any person supposed to be acquainted with the facts and circumstances of the case’ in the course of examination by the police. The protective scope of Article 20(3) extends to the investigative stage in criminal cases and when read with section 161(2) of the Code it protects accused persons, suspects as well as witnesses who are examined during an investigation [Selvi v State of Karnataka, 2010 (4) Scale 690 : (2010) 7 SCC 263 ].

By addition of the word “truly” an express provision of law to state the truth has been made. Hence the witness in answer to any question, subject of course to the limitation regarding incriminating question, giving false answer is liable under section 193, Indian Penal Code, 1860 and in refusing to answer any question is liable under section 179, Indian Penal Code, 1860. He can refuse to answer incriminating questions, but if he does give an answer which exposes him to a charge of defamation, he can only avoid it by bringing it under the

Page 5 of 11 [s 161] Examination of witnesses by police.— exceptions in section 499, Indian Penal Code, 1860 [Hittu Bansi v Sheolal Dinaji, AIR 1948 Nag 243 : (1948) 49 Cr LJ 322 : 1947 Nag LJ 569 ]. Unsworn, uncross-examined, recorded behind the back of the accused, it is not substantive evidence [Masha, 69 Cal WN 764] and its use to fill up lacunae in prosecution evidence is not permissible [Arjuna Behera v State of Orissa, 1980 Cr LJ (NOC) 133 : 48 Cut LT 380 (Ori)].

Police officer is not bound to examine every person supposed to be acquainted with the facts [Law Commission 41st Report vol 1 para 14-19].

An omission to be significant must depend upon whether the specific question, the answer to which is omitted, was asked to witnesses by police officer during investigation [Munna v State of Rajasthan, 2001 Cr LJ 4127 (Raj) : 2001 (3) WLC 700 ]. [s 161.12] Sub-section (3) [How to record statement].— Sub-section (3) makes it clear that a police officer is not bound to record any statements of witnesses examined though he may do so if he wishes [see Jageswar, AIR 1950 C 565; Bejoy Chand Patra v State, AIR 1950 Cal 363 : (1950) 51 Cr LJ 1307 : 54 Cal WN 447; Baliram, AIR 1945 N 1; Chandu Veerraiah v State of AP, AIR 1960 AP 329 : 1960 Cr LJ 791 : 1960 Andh LT 418 : 1960 Mad LJ (Cri) 545; Public Prosecutor v CD Naidu, AIR 1960 AP 367 : 1960 Cr LJ 887 ]. Recording of statements of witnesses is not obligatory, but if a police officer does record in writing he is obliged to make copies of those statements available to the accused before the commencement of proceedings [Noor Khan v State of Rajasthan, AIR 1964 SC 286 : 1964 (1) Cr LJ 167 (SC); Zahira Habibullah H Sheikh v State of Gujarat, AIR 2004 SC 3114 : 2004 Cr LJ 2050 : 2004 (4) SCC 158 : 2004 (2) Crimes 213 (SC)]. Though recording is discretionary, it should not be exercised capriciously so as to handicap the accused in his defence or deprive the Court of valuable material for ascertaining truth [Re : Mettu Pentayya, AIR 1960 AP 545 : 1960 Cr LJ 1402 ]. The practice of writing up statements at the end of the day from memory is objectionable. The statement should be recorded at the time witnesses are examined [Vishwanath, AIR 1936 N 249; see Zahid, 1937 ALJ 1253 : AIR 1938 A 91]. Statements should be recorded as far as possible in the very words of the persons examined and should not be in the indirect form [Dommanaboyina Ramaiah v State of AP, AIR 1960 AP 160 : 1960 Cr LJ 311 : 1959 Andh LT 908 ]. Statement of witness need not be recorded in language known to the person giving the statement [Zahira Habibullah H Sheikh v State of Gujarat, AIR 2004 SC 3114 : 2004 Cr LJ 2050 : 2004 (4) SCC 158 : 2004 (2) Crimes 213 (SC)]. If recorded at all, there must be a separate record of the statement of each witness and not a boiled or condensed version of all witnesses in a lump so that the defence may use it for the purpose in section 162 [Bejoy, supra; Jageswar, sup; Jatiram, 55 Cal WN 398; Dhirendra Nath v State, AIR 1952 Cal 621 : 1952 Cr LJ 1427 ; Shyama Rajaram Pardhan v Emperor, AIR 1949 Nag 260 : (1949) 50 Cr LJ 669 : 1949 Nag LJ 315 : AIR 1952 C 621; Venkataratnam, 1951, 1 Mad LJ 430; Zahira Habibullah H Sheikh v State of Gujarat, 2004 Cr LJ 2050 (SC)]. It is very undesirable to record the statement of one witness and then to note that he is corroborated by others without recording their statements separately [Ramesewak, AIR 1945 P 109; Re : Bheemavarapu Subba Reddi, AIR 1948 Mad 23 : (1947) 48 Cr LJ 973 : 1947 (1) Mad LJ 193; State of Bihar v Ram Bachan Singh, 1981 Cr LJ (NOC) 56 : 1981 BLJR 294 (Pat); see ante, “How to record statements”]. Subsection (3) prohibits a précis statement. The statement must be recorded fully if recorded at all [Sudhir Kumar Mandal v The King, AIR 1955 NUC 661 (Cal)] Sub-section (3) hits at the practice of writing against the names of witnesses other than the first that they corroborated him [Re : Bheemavarapu Subba Reddi, AIR 1948 Mad 23 , 25 : (1947) 48 Cr LJ 973 : 1947 (1) Mad LJ 193-Horwill, J; Gouranga Mohapatra v State, AIR 1954 Ori 49 : 1954 Cr LJ 306 : ILR (1953) Cut 428 ; Sudhir, sup; Chenchiu Gangi Reddi v State of AP, AIR 1955 Mad 303 : 1955 Cr LJ 817 (2) : 1954 (2) Mad LJ 462 : 1955 Mad WN 654]. Repetitions of statements may be explained. The fact that when succeeding witnesses give an identical story, the words used by the police in recording would be identical or similar [Gurbachan Singh v State of Punjab, AIR 1957 SC 623 : 1957 Cr LJ 1009 (SC)]. Omission to record separately is a flagrant attempt to circumvent the law [Baliram, AIR 1945 N 1]. Recording of a joint statement is clearly in contravention of law and must be disapproved. But recording statements jointly and not separately does not make them inadmissible for that reason, though failure to do so might greatly impair the value of their evidence [Tilkeshwar Singh v State of Bihar, AIR 1956 SC 238 : 1956 Cr LJ 441 : 1955 (2) SCR 1043 (Viswanath, AIR 1937 N 178; Magan Lal v Emperor, AIR 1946 Nag 173 : (1946) 47 Cr LJ 851 : 1946 Nag LJ 139 : ILR (1946) Nag 126 disapproved and Bijoy Chand Patra v State, AIR 1950 Cal 363 : (1950) 51 Cr LJ 1307 : 54 Cal WN 447 approved)]. In the absence of reasons of urgency, statements should be recorded instead of taking notes for preparation of case-diary afterwards [Re : Bheemavarapu Subba Reddi, AIR 1948 Mad 23 : (1948) 49 Cr LJ 973 : 1947 (1) Mad LJ 193]. Record of not more than a gist of the statement is required [Guruva, AIR 1944 M 385; Gangu, supra; Subba Reddi, supra] and if notes are taken they should be preserved [Baliram, supra; Subba Reddi, supra; Re : Papaiah, AIR 1956 AP 213 : 1956 Cr LJ 1279

Page 6 of 11 [s 161] Examination of witnesses by police.— ]. Short record should be made [Guruva, AIR 1944 M 385]. In serious cases the whole statement of person giving important information should be taken down [Baliram, AIR 1945 N 1; Sulaiman, AIR 1929 R 87]. Destruction or omission to keep the record in the way prescribed by law deprives the accused of a right which the Privy Council held to be a “very valuable one” [Pulukuri Kotayya v The King Emperor, AIR 1947 PC 67 : (1947) 48 Cr LJ 533 : 74 IA 65 : 194 (1) Mad LJ 219 : 51 Cal WN 474, 478 : AIR 1947 PC 67 ] as copies become unavailable for use under section 162. (See Post “Effect of Unavailability of Copy”). Whether failure to comply with section 161(3) vitiates the entire trial or not depends upon the facts of each ease [Re : Royappan, AIR 1955 Mad 512 : 1955 Cr LJ 1200 : 1955 (2) Mad LJ 312 : 1955 Mad WN 342 (1)] and unless there is real prejudice the infringement does not vitiate the trial [Re : Bhootapati Asservadam, AIR 1956 AP 199 : 1956 Cr LJ 1183 : 1956 Andh WR 333]. If the FIR is registered at any police station there is such provision under section 161 Code of Criminal Procedure, 1973 that the statements of witnesses must be recorded by the Investigating officer without any delay. In the present case it was also held by High Court that if there are some contradictions between FIR and statement recorded under section 161 Code of Criminal Procedure, 1973 that can be removed by the witness at the stage of trial [Murli Chaurasia v State of UP, 1995 Cr LJ 2782 (All)]. As to the effect of unavailability of such statement for omission to record separately or destruction, see notes to section 162 post, “Effect of Unavailability of Copy”.

Where prima facie incriminating material is available against the accused, Court cannot go into the veracity of a material at the stage of framing of charges [Jijo v State, 2003 Cr LJ 256 (257) : AIR 2002 Kant HCR 3022 : 2003 (1) Rec Cr R 348 (Kant)].

It is very well settled legal proposition rather to say basic principle of Criminal Law prevalent in our country that police statement recorded under section 161 of the Code of Criminal Procedure can be used only to contradict the concerned witness in Court with his Court statement as prescribed under section 162 of the Code of Criminal Procedure read with section 145 of the Evidence Act. Corroboration to Court statement cannot be sought from the police statement [Ramesh v State of MP, 2008 Cr LJ 1559 (1567) (MP) : 2008 (2) AIR Jhar R (NOC) 54].

Statement of witness during investigation does not include interpretation of IO of statements or gists of statement recorded under section 172. Direction to supply gist if it amounted to statement recorded under section 161 was held not sustainable [State (NCT) of Delhi) v Ravi Kant Sharma, 2007 Cr LJ 1674 (SC) : (2006) 130 DLT 370 was reversed. This statement can be used for contradiction and not for corroboration, Shri Parimal Gowala v State, 2007 Cr LJ 2394 (Gau)].

Statements of witnesses were not recorded by the police as they were witnesses of dying declaration and not actual occurrence. The plea was not taken by accused that dying declaration was not immediately sent to Court of concerned Magistrate. It was held that non-recording of statement of witness under section 161 could hardly have any bearing [Dayal Singh v State of Maharashtra, 2007 Cr LJ 3265 (SC) : 2007 (3) Crimes 129 : (2008) 3 SCC (Cri) 236 : 2007 (1) DMC 824 ].

T.I. Parade is part of investigation proceedings governed by section 162. Non-holding of T.I. Parade does not make evidence of identification in Court inadmissible [Herra v State of Rajasthan, 2007 Cr LJ 3514 (SC) : AIR 2007 SC 2425 : (2007) 3 SCC (Cri) 461 : (2007) 10 SCC 175 ]. [s 161.13] Omissions, variations & contradictions etc.— Otherwise creditworthy and reliable evidence of a witness would not be rejected merely because a particular statement made by the witness before the Court does not find place in a statement recorded under section 161, Code of Criminal Procedure, 1973 [Alamgir v State, AIR 2003 SC 282 : 2003 Cr LJ 456 (p 459) (SC) : 2003 (1) Crimes 212 : 2003 SCC (Cr) 165]. Marginal variations in the statement of the informant recorded under section 161, Code of Criminal Procedure, 1973 would not be treated as improvements [Chandrashekhar Suresh Chandra Bhatt v State of Maharashtra, 2000 (41) All CrC 649 (SC) : (2000) 10 SCC 582 ]. In a case where the witness deposed before the Court, that the deceased had made dying declaration to “him”, but in his statement under section 161, Code of Criminal Procedure, 1973, he did not state about such dying declaration, the Court rejected such dying declaration [State of Punjab v Praveen Kumar, 2005 (1) Crimes 32 (SC) : AIR 2005 SC 1277 : (2005) 9 SCC 769 ].

Page 7 of 11 [s 161] Examination of witnesses by police.—

Evidence of the witnesses could not be relied upon where in the FIR it was not stated that the accused had weapons when they accompanied the deceased to the latter’s field, but in the statement before the Court they stated that they saw the deceased in the company of the accused [Durga v State of UP, 2004 (3) Crimes 666 (All)].

Where the witnesses have not stated in their statement under section 161, Code of Criminal Procedure, 1973 about the dying declaration made by the deceased to them, their statement about the dying declaration for the first time was not accepted [Khalil Khan v State of MP, (2003) 11 SCC 19 : 2003 (4) Crimes 293 (SC) : 2003 Cr LJ 5046 : AIR 2003 SC 4670 ].

In a murder case the father of the deceased had deposed before the Court that on earlier day of occurrence the accused husband had mercilessly beaten her and had threatened to kill her on her failing to bring money within 24 hrs from her parents. Chit in handwriting of the deceased referring to the said incident was proved but the father of the deceased had not mentioned anything in his police statement. It was held that no adverse inference could be drawn relating to reliability of his evidence [Vaijnath Ramji Waman v State, 2007 Cr LJ (NOC) 934 (Bom) : 2007 (5) AIR Bom R 573].

There were contradictions in the statement of prosecution witness recorded by police under section 161 of the Code and the statement given by him before the court. But neither prosecution witness nor investigating officer confronted with statements and questions about it. Therefore, the statement under section 161 of the Code, cannot be looked into, to discredit testimony of prosecution witness and prosecution version. [V K Mishra v State of Uttarakhand, AIR 2015 SC 3043 : 2015 (9) SCC 588 ]. [s 161.14] Absence of prior statement of investigating officer.— When there is a prima facie material to proceed against the accused, absence of prior statement of an investigating officer does not result in any miscarriage or prejudice to the accused because he could be effectively cross-examined [Jayaram v State of Karnataka, 2003 Cr LJ 1422 : AIR 2003 Kant HCR 662 : 2003 (2) Kant LJ 630 : 2003 (2) Rec Cr R 451 (Kant)]. [s 161.15] Non-examination of Investigating Officer.— The IO should be examined in trial of cases especially when a serious sessions trial is being held against the accused. If any of the prosecution witnesses give any evidence contrary to their previous statement recorded under section 161, Code of Criminal Procedure, 1973 or if there is any omission of certain material particulars, the previous statements of these witnesses can be proved only by examining the IO who must have recorded the statements of these witnesses [State of Karnataka v Bhaskar Kushali, AIR 2004 SC 4333 : 2004 Cr LJ 4229 (4230) (SC) : 2004 (3) Crimes 390 : (2004) 7 SCC 487 ]. [s 161.16] Transfer of investigation to CID—Investigating Officer can record fresh statement.— When the case was transferred to CID for investigation, it obviously meant that in the normal course the authorities were not satisfied with the conduct of the investigation by PW-31 and considered it appropriate to transfer the investigation to a specialized branch ie CID. Once, the direction was given to PW-30 to conduct the investigation afresh and in accordance with law. There was no error of jurisdiction or otherwise committed by PW-30 in examining the witnesses afresh and filing the charge-sheet under section 173 of Code of Criminal Procedure, 1973 stating that the appellants and other accused had committed the offence and were liable to face trial under sections 304-B and 498-A of Indian Penal Code, 1860. [Uday Chakraborty v State of WB, 2010 Cr LJ 3862 (p 3866) : AIR 2010 SC 3506 : (2010) 7 SCC 518 ]. [s 161.17] Delay in recording statements.— There was a delay of 25 to 30 days in recording statement of witness, but the testimony of witness was found credible and the same was corroborated by evidence of informant in all material details of the incident. Such a statement cannot be rejected on the ground of delay in recording of his statement particularly in the situation when there was change of Investigating Officer. [Himanshu Mohan Rai v State of U.P, AIR 2017 SC 1425 : 2017 (4) SCC 161 ].

Page 8 of 11 [s 161] Examination of witnesses by police.— The delay in examination of witness by the Investigating Officer was on account of the fact that Investigating Officer wanted to assure himself of the veracity of her statement and she was examined after she had time to recover from the shock of the incident and compose herself. Delay in examination of witness under section 161 will not prejudice the prosecution. [Yogesh Singh v Mahabeer Singh, AIR 2016 SC 5160 : 2016 (10) Scale 219 ].

Delay of 15 to 16 days from the date of incident in recording the statements of the witnesses to alleged conspiracy between accused persons to kill the deceased, was sought to be examined on the ground that family had to sit for shock meetings for 12 to 13 days. Delay cannot be said to be satisfactorily explained. Doubt was cast on prosecution case. [Harbir Singh v Sheeshpal, AIR 2016 SC 4958 : 2016 (10) Scale 211 ].

Delay of a few hours in recording statements of eye-witnesses may not amount to a serious infirmity but inordinate delay cast a cloud of suspicion on the credibility of the entire warp and woof of the prosecution story [Ganeshbhavan Patel v State of Maharashtra, AIR 1979 SC 135 : 1979 Cr LJ 51 : (1978) 4 SCC 371 (SC); see also Atmaduddin v State of UP, AIR 1974 SC 1901 : 1974 Cr LJ 1300 : (1973) 4 SCC 35 ]. Delay in recording the statement of the witnesses does not necessarily discredit their testimonies. The Court may rely on such testimonies if they are cogent and credible [Sidhartha Vashisht v State (NCT of Delhi), AIR 2010 SC 2352 : (2010) 6 SCC 1 ].

A delay of few hours by itself in recording the statement of a witness does not amount to serious infirmity, unless there is material to suggest that investigating agency had deliberately delayed the recording of the statement in order to afford an opportunity to the maker to set up a case of his own choice. Further, investigating officer has to be specifically asked as to the reasons for the delayed examination where the accused raises a plea that there was unusual delay in recording the statement of the witness [Rajinder v State, 2010 CriLJ 15 (24) (Del)].

As regards delayed examination of certain witnesses, the Supreme Court in several decisions has held that unless the investigating officer is categorically asked as to why there was delay in examination of witnesses, the defence cannot gain any advantage therefrom. It cannot be laid down as a rule of universal application that if there is any delay in examination of a particular witness, the prosecution version becomes suspect. It would depend upon several factors [State of UP v Satish, AIR 2005 SC 1000 : 2005 Cr LJ 1428 : (2005) 3 SCC 114 : 2005 (1) Crimes 146 (SC); Banti v State of MP, 2004 Cr LJ 372 (p 376) (SC) : AIR 2004 SC 261 : 2003 (4) Crimes 415 : (2004) 1 SCC 414 ; Bodhraj v State of J&K, AIR 2002 SC 3164 : 2002 Cr LJ 4664 : 2002 (4) Crimes 182 : (2002) 8 SCC 128 ].

Examination of eye-witness by the police two days after the incident by itself cannot give rise to the inference that presence of witness at the spot was unnatural or improbable—Adverse inference cannot be drawn against the prosecution for late examination [Narpat Singh v State of Rajasthan, 1990 Cr LJ 2720 : 1989 (2) Raj LR 568 (Raj-DB)].

Where the statement of witness under the provisions of section 161, Code of Criminal Procedure, 1973 was recorded after 8 days and where the Investigating Officer was able to satisfy the Court by expressing sufficient cause of delay, the evidence of prosecution witness cannot be disbelieved merely on ground of delay if the evidence of rest of the witnesses support the prosecution case [Ganpat Ram v State of Rajasthan, 1995 Cr LJ 1466 (Raj)].

Testimony of witness interrogated two months after incident could not be taken into consideration. [Raja Shavnappa Zinge v State of Maharashtra, 1997 Cr LJ 450 : 1996 (2) Crimes 314 : 1996 (4) Bom CR 467 (Bom)].

The evidence of witnesses who have not disclosed the occurrence soon thereafter and have not offered any

Page 9 of 11 [s 161] Examination of witnesses by police.— reasonable explanation should not be accepted [Vijaybhai Bhanabhai Patel v Navnitbhai Patel, 2004 (10) SCC 583 : 2004 Cr LJ 3832 (SC) : 2004 (2) Crimes 386 : AIR 2004 SC 4607 ].

Where the delay in recording the statement is due to casual approach of IO, it would not affect the value of the statement of the witness [Suradhani Darbar v State of WB, 2004 (3) Crimes 196 (Cal)].

Mere delay in examination of the witnesses for a few days in all cases cannot be termed to be fatal so far as the prosecution is concerned. When the delay is explained, whatever be the length of delay, the Court can act on the testimony of the witness if it is found to be cogent and credible [Mohd Khalid v State, (2002) 7 SCC 334 ; Bodhraj v State, AIR 2002 SC 3164 : (2002) 8 SCC 45 : 2002 (4) Crimes 182 ; Shri Asses Calaco v State of Goa, 2002 (2) Crimes 560 (568) (Bom)].

Investigation of the case was transferred to another officer as previous officer did not conduct fair investigation. The new officer to whom the investigation was transferred recorded statements of witnesses after five or six days of the incident after taking charge of the case. Delay was held sufficiently explained [Dukhmochan Pandey v State of Bihar, AIR 1998 SC 40 : 1998 Cr LJ 66 : (1997) 8 SCC 405 : 1997 (4) Crimes 43 (SC)].

Delay in investigation is sufficiently explained where it is due to transfer of the investigating officer who had not properly conducted the investigation. [Kota Peda Nagesh v State of AP, 1999 Cr LJ 2051 (AP)].

In a murder case, delay in recording statement of eye-witnesses was held not fatal to prosecution case [Ramdev v State of Rajasthan, 2003 Cr LJ 1680 : 2003 (1) WLC 34 (Raj)].

Where there was unexplained delay of 2-3 days in recording the statement of injured and the involvement of some of the accused was doubtful, benefit of doubt was extended to the accused persons [Bijay Singh v State of Bihar, AIR 2002 SC 1949 : 2002 Cr LJ 2623 (p 2629) (SC) : 2003 (2) Crimes 437 : (2002) 9 SCC 147 ].

Where the reason for delay of 13 days in recording statement of the informant given by the I.O. was not convincing, the delay was held fatal [State of UP v Shri Krishna, (2005) (1) Crimes 200 (201) (SC) : AIR 2005 SC 762 : 2005 Cr LJ 892 : (2005) 10 SCC 399 ].

The delay in recording statement of the witnesses under section 161, Code of Criminal Procedure, 1973 would not be fatal, where in murder case the names of the witnesses were disclosed in the FIR filed promptly [Raju v State of UP, 2008 Cr LJ (NOC) 1017 : (2008) 61 All Cri C 625].

Where according to reliable witnesses and the IO the injured child witness was not in a position to speak, his belated statement under section 161, Code of Criminal Procedure, 1973 was held not fatal [Prithvi v Mam Raj, 2006 (3) East Cri C 148 (SC)]. [s 161.18] Not substantive evidence.— The deceased and P.W. 10 were obstructed in proceeding in their truck by the accused and there was an altercation. The accused appellant and his co-accused got hold of P.W. 10 and gave some slaps and fist blows. It was held that it was clear from the judgment of the High Court that though P.W. 10 in his chief examination has supported the prosecution version in all its material particulars he has given a complete go-by and struck a death knell to the prosecution in his cross-examination by stating that due to darkness, he could not identify the culprits. The High Court was inclined to place reliance on his evidence on the ground that this witness in his statement before the police during the investigation as well as in the first information report has narrated all the relevant facts and had not whispered in those statements that he could not identify the appellant accused due to darkness. This reasoning of the High Court is erroneous. Needless to stress that the statement recorded under section 161 of the Code shall not be used for any purpose except to contradict a witness in the manner prescribed in the proviso to section 162 (1) and that the FIR is not a substantial piece of evidence. The High

Page 10 of 11 [s 161] Examination of witnesses by police.— Court had misled itself into relying upon these two statements and thereby has fallen into a serious error [Baldev Singh v State of Punjab, AIR 1991 SC 31 : 1990 Cr LJ 2604 : (1990) 4 SCC 692 : 1990 (3) Crimes 642 (SC) (per S Ratnavel Pandian and K Jayachandra Reddy JJ)].

A statement recorded under section 161, Code of Criminal Procedure, 1973 cannot be treated as evidence in the criminal trial but may be used for limited purpose of impeaching credibility of a witness [Ram Swaroop v State of Rajasthan, 2005 SCC (Cri) 61 : AIR 2004 SC 2943 : 2004 Cr LJ 5043 (5049) SC : 2004 (3) Crimes 115 ].

The statement before the IO recorded under section 161 can be used for the purpose of contradiction, but not for corroboration. [Tarun Chakraborty v State of WB, 2010 Cr LJ 3745 (p 3750) (Cal); Bilal Mia v State of Tripura, 2010 Cr LJ 3920 (Gau)]. [s 161.19] Lapse in investigation.— The prosecution should offer explanation for the lapse of the investigating officer in not examining the witness immediately after the incident occurred. It is not for the trial Judge to make out a case for the prosecution. In a trial for offence under section 304 Indian Penal Code, 1860 the Sessions Court was held to have misdirected itself in finding certain explanation for the lapse of the investigating officer in examining the witness 1-1/2 months after the incident. [Jamiruddin Molla v The State, 1991 Cr LJ 356 Cal : 1990 (2) Cal HN 62 (DB)]. [s 161.20] Procedure—Irregularities.— Where the Court permitted the examination of prosecution witnesses not named in the charge-sheet without pressing for compliance of formality and also failed to furnish copies of their statements recorded under section 161, Code of Criminal Procedure, 1973 to accused, it was held that the failure of the Court to do so, caused prejudice to the accused, as the accused was deprived of opportunity to cross-examine the witnesses with regard to absence of her confessional statement in their statements recorded under section 161, Code of Criminal Procedure, 1973 [Mohd Sadik Ansari v State of UP, 2009 Cr LJ (NOC) 1213 (All)]. [s 161.21] Suggestion of defence.— Each and every suggestion of the defence at the investigation need not lead the investigation to follow it. Had there been a counter version and the suggestion was that the investigating officer had wrongly not recorded a cross FIR, it might have been a different matter. Furthermore, a criminal complaint could have been filed if the counter version had to be deployed [Isher Dass v State of Haryana, AIR 1992 SC 1595 : 1992 Cr LJ 2327 (SC)]. [s 161.22] Sections 161 and 231.— Under section 161, the investigating officer can interrogate any person supposed to be acquainted with the facts and circumstances of the case under investigation and is to reduce the statement made to him in writing. But under section 231, Code of Criminal Procedure, 1973 the Court in the course of trial of a sessions case is to take all such evidence as may be produced in support of the prosecution. These words of section 231 do not confine the production of witnesses by the prosecution side only to those persons whose statements have been recorded under section 161. Where the statement of a witness is not recorded under section 161, but the prosecution (with the prior permission of Court) produces such witness, the accused cannot be held to be taken by surprise. [Ram Achal v State of UP, 1990 Cr LJ 111 All : 1990 All LJ 54 DB].

Statement recorded under section 161 Code of Criminal Procedure, 1973 being not evidence issuance of notice under section 340 Code of Criminal Procedure, 1973 is not proper. [Omkar Namdeo Jadhav v Second Additional Sessions Judge, Buldana, AIR 1997 SC 331 : (1996) 7 SCC 498 : 1996 (1) Crimes 20 : 1997 Cr LJ 369 (SC)].

Under section 27 of Evidence Act an Investigating Officer is not bound to take the signature of the accused on statements under provisions. If due to ignorance of section 162(1) Code of Criminal Procedure, 1973 the officer takes the signature, it does not amount to vitiating the reliability of the accused before Court, as the Court would reassure about his statement again. [State of Rajasthan v Teja Ram, AIR 1999 SC 1776 : 1999 Cr LJ 2588 : (1999) 3 SCC 507 : 1999 (2) Crimes 45 (SC)]. [s 161.23] Statement made by accused to police officer not covered by Section 161, CrPC.—

Page 11 of 11 [s 161] Examination of witnesses by police.— When a statement is made by an accused to a police officer and when such a statement, though amounts to admission, is not covered by section 161, Code of Criminal Procedure, 1973, such a statement of an incriminating fact, would be admissible in evidence provided that the statement, of even an incriminating fact, would be admissible in evidence, provided that the statement does not fall within the meaning of section 161, Code of Criminal Procedure, 1973. [Deepak Panyang v State of AP, 2010 Cr LJ 2567 (p 2581) : (2011) 4 GLT 266 (Gau)]. [s 161.24] Prosecutrix in rape.— The statements made by the victim prosecutrix during trial contained a lot of improvement over the FIR and were also at variance with the FIR on material points. The eye witnesses who were very close relatives of the victim had filed affidavits wherein they had denied occurrence of such incident. No opinion about rape was expressed by the doctor after pathological examination. There was no other witness to corroborate the victim. The circumstances were also against her. It was held that it would not be proper to convict the accused on the sole testimony of victim prosecutrix, more so when the relations between the father of the accused and the victim’s husband were strained [Ashok Kumar v State of UP, (1991) Cr LJ 2859 : 1991 (2) Crimes 771 : 1991 All LJ 953 : 1991 All Cr C 411 (All) (per P P Gupta J)]. [s 161.25] Statement of injured person.— Statement of injured person, recorded under section 161 Code of Criminal Procedure, 1973 is not admissible under section 33 Evidence Act (if the injured person dies. [Sukhar v State of UP, AIR 1999 SC 3883 : 2000 Cr LJ 29 , 30 : (1999) 9 SCC 507 : 1999 (4) Crimes 191 para 2 (SC)]. [s 161.26] Spot map prepared by police.— The contents of the spot map prepared by the police at the instance of a witness would be considered as the statement of the witness recorded under section 161 of the Code and merely be exhibiting the map by the Investigating Officer, its contents would not become admissible in evidence. The use of the contents of the map can be as per provision under section 162 for impeaching the testimony of witness [Narayan v State of MP, 2008 Cr LJ 1657 (p 1660) (MP) : 2008 (2) MPHT 138].

4 5

Inserted by the Code of Criminal Procedure (Amendment) Act, 2008 (5 of 2009), Section 12 (w.e.f. 31 December 2009). Inserted by the Criminal Law (Amendment) Act, 2013 (13 of 2013), Section 15 (w.e.f. 3 February 2013).

End of Document

[s 162] Statements to police not to be signed: Use of statements in evidence.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER XII INFORMATION TO THE POLICE AND THEIR POWERS TO INVESTIGATE

The Code of Criminal Procedure, 1973 CHAPTER XII INFORMATION TO THE POLICE AND THEIR POWERS TO INVESTIGATE [s 162] Statements to police not to be signed: Use of statements in evidence.— (1) No statement made by any person to a police officer in the course of an investigation under this Chapter, shall, if reduced to writing, be signed by the person making it; nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record, be used for any purpose, save as hereinafter provided, at any inquiry or trial in respect of any offence under investigation at the time when such statement was made: Provided that when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid, any part of his statement, if duly proved, may be used by the accused, and with the permission of the Court, by the prosecution, to contradict such witness in the manner provided by section 145 of the Indian Evidence Act, 1872 (1 of 1872); and when any part of such statement is so used, any part thereof may also be used in the re-examination of such witness, but for the purpose only of explaining any matter referred to in his cross-examination. (2) Nothing in this section shall be deemed to apply to any statement falling within the provisions of Clause (1) of section 32 of the Indian Evidence Act, 1872 (1 of 1872), or to affect the provisions of section 27 of that Act. Explanation.—An omission to state a fact or circumstance in the statement referred to in subsection (1) may amount to contradiction if the same appears to be significant and otherwise relevant having regard to the context in which such omission occurs and whether any omission amounts to a contradiction in the particular context shall be a question of fact. [s 162.1] Changes.— Section 162 corresponds to old section 162 with addition of an Explanation.

The Explanation has been added for clarification in view of the doubt on the question whether any omission in a statement recorded by the police during investigation would amount to a contradiction, with reference to what the witness states during the trial. [s 162.2] Scope and application of section 162.—

Page 2 of 23 [s 162] Statements to police not to be signed: Use of statements in evidence.— Sections 160 and 161 empower the police to examine witnesses in the course of investigation and to record their statements if they desire. (A similar proviso is contained in section 78-A, Calcutta Police Act). Section 162 is a part or continuation of section 161. In order that the accused may not be prejudiced in any way by the improper use of such statements recorded loosely or inaccurately by the police, section 162 lays down specifically the mode in and the purpose for which the statements may be used in evidence. The object is to protect the accused both against overzealous police officers and untruthful witnesses [Baliram, AIR 1945 N 1; Afab Md, AIR 1940 A 291, 299] and to recognise the danger of placing confidence on the record more or less imperfectly or inaccurately made by police officers unacquainted with the law of Evidence [Isab, 28 C 348]. Another object of the section is to “encourage the free disclosure of the information or to protect the person making the statement from a supposed unreliability of police testimony as to alleged statement or both” [Pakala Narayan, 43 Cal WN 473, 480, PC : 66 IA 66, 78 : 40 Cr LJ 364]. The intention is to protect the accused against the user of the statements of witnesses made before the police presumably on the assumption that the statements were not made under circumstances inspiring confidence. The section and the proviso are intended to serve primarily the interest of the accused [Tahshildar Singh v State of UP, AIR 1959 SC 1012 : 1959 Cr LJ 1231 : 1959 Supp (2) SCR 875]. The words of section 162 are wide enough to include a confession made to a police officer in the course of an investigation [Aghnoo Nagesia v State of Bihar, AIR 1966 SC 119 : 1966 Cr LJ 100 (SC)].

The section accordingly provides that (1) It is not obligatory [see the words “if reduced to writing” in sub-section (1) and “may” in section 161(3)] to record statements of witnesses examined by the police. They may do so if they wish.

(2) If reduced to writing it shall not be signed by the maker of the statement.

(3) Both the “statement” i.e., made orally and any record thereof shall not be used (only at any inquiry or trial in respect of an offence then under investigation) for any purpose, except that when any witness who was examined by the police is called by the prosecution, his former statement reduced to writing, if duly proved, may be used— (i) by the accused for the limited purpose of contradicting (section 145, Evidence Act) that witness and no others; (ii) also by the prosecution for the same purpose of contradicting him, but with the permission of the Court; and (iii) when the witness’s statement is so used (i.e., either by the accused or the prosecution) in cross-examination, he may be re-examined, if any explanation is necessary. The re-examination will of course be by the party who called the witness (section 137, Evidence Act), i.e., the prosecution. In a proper case the accused will have a right of re-cross-examination.

(4) The statement by whomsoever made (whether accused or not) cannot be used for any purpose whatsoever other than that in item (3) above. Thus, it cannot be used for corroboration of prosecution or defence witness or for contradiction of defence witness.

(5) The provisions of sections 32 (1) and 27, Evidence Act are not affected by the section.

FIR is not a statement under section 162. There cannot be an investigation before FIR. It is not a statement recorded during investigation. [Damodar Mishra v State of Orissa, 2000 Cr LJ 2073 : (1999) 16 OCR 384 (Ori)].

Statement recorded by Police officer of witnesses in investigation cannot be used as FIR. [Harender Singh v State of Bihar, 2002 (1) East Cri 111 (Pat)].

Denial of right of accused to cross-examine said witness on that statement is violation of section 162 of Code. [Rajeshbhai Chandubhai v State of Gujarat, 2001 Cr LJ 3039 : 2001 (3) Guj LR 1979 (Guj)].

Page 3 of 23 [s 162] Statements to police not to be signed: Use of statements in evidence.— Order denying right of accused to cross-examine witness under section 162 of Code can be challenged by way of Revision. [Rajeshbhai Chandubhai v State of Gujarat, 2001 Cr LJ 3039 : 2001 (3) Guj LR 1979 (Guj)].

It is important to bear in mind that, section 162 is a special law which affects the provisions of sections 145 and 157, Evidence Act inasmuch as the use of all previous statements of witnesses to the police is absolutely banned for any purpose except the one allowed by the proviso to section 162, viz., contradiction of a prosecution witness—(i) by the accused, or (ii) by the prosecution themselves with the permission of the Court, i.e., after declaring him adverse. So, when a witness whose statement was recorded by the police is called as a defence witness he cannot be corroborated by his previous statement, nor can he be contradicted by the police by that statement [see Sheo Shankar v State, AIR 1953 All 652 : 1953 Cr LJ 1400 : 1953 All LJ 720 : 1953 All WR 264]. The prosecution cannot also corroborate a prosecution witness by his former statement, (See post, “Use of statement under the proviso and its limitations”).

The expression “if reduced to writing” qualifies only “shall be signed” and is not a clause descriptive of the statement [Chinna Thimmappa v Talukunta Timmappa, 51 M 967, FB : 29 Cr LJ 1098, 1101].

The section completely shuts out from evidence all statements to a police officer in the course of investigation, except for the strictly limited purpose in the proviso. A history of section 162 and its growth into the present form is to be found in Tahsildar Singh v State of UP, AIR 1959 SC 1012 : 1959 Cr LJ 1231 (SC).

Statement of witnesses recorded by investigators during inquest would be within inhibition of section 162 and it can only be used for contradiction but no contradictions were marked in statement recorded in inquest report provided under section 162. It was said statements were not admissible in evidence [Noushad v State, 2006 Cr LJ 1089 (Ker) : 2006 (1) Ker LT 717 : 2006 (2) Crimes 581 ].

Where first information report having been found, false second one was filed and all eye-witnesses including complainant and injured witnesses had supported version of second first information report, it was held that it will not be hit by section 162 [Mukeemullah v State, 2006 Cr LJ 2606 (All) : 2006 (3) All LJ 607 : 2006 (55) All Cri C 435].

Statement of witness made to police or written statement of eye-witness allegedly given to police during investigation were not produced at the time of submission of charge-sheet alongwith other papers. In such a case if delay is satisfactorily explained there is no legal bar against accepting of such document even at later stage of trial [Ashok Kumar Rout v State, 2006 Cr LJ 3362 (Pat) : 2006 (2) Pat LJR 574 : 2006 (3) East Cri C 37].

After institution of case first for same set of occurrence subsequent written report shall be deemed to be a statement of a witness and it cannot be treated to be first information report. Hence subsequent first information report for same set of occurrence is liable to be set aside [Ramchandra Yadav v State, 2007 Cr LJ 472 (Jhar)].

The bar of section 162 operates against the investigation and not against the Court [Govinda v State of UP, 2008 Cr LJ 2551 (2553) (All) : 2008 (3) All LJ 298 : 2008 (61) All Cri C 48].

Even though the police official was present when the statement was made by deceased, yet a large number of relatives of the deceased, more particularly PW-1 who had taken him to the hospital were present also. Held, statement made by the deceased before doctors could not be discarded as not voluntary [S Pannurselvan v State of TN, 2008 Cr LJ 3531 (3533) (SC) : 2008 (6) JT 559 ].

The Executive Officer of Panchayat proved Exhibit P. 22 reply to the letter sent by CBI inspector stating that no

Page 4 of 23 [s 162] Statements to police not to be signed: Use of statements in evidence.— licence was issued to Deepak Industries. Similarly, Junior Superintendent, Panchayat proved Exhibit P. 23 addressed by him to the CBI Inspector in answer to the letter sent to him by the CBI asking whether Deepak Industries was functioning in “K” Panchayat area. This witness had replied in the negative. The marking of Exhibits P. 22 and P. 23 were specifically objected to by the defence since according to the defence those reply letters were hit by section 162, Code of Criminal Procedure, 1973. But the trial Judge overruled the defence objection and marked those replies. It was held that objection by defence that the said letters were hit by section 162, Code of Criminal Procedure, 1973 was proper. [Rajeevan Awasthy Pattathanani Kadappakada Quilton v Superintendent of Police, 2011 Cr LJ 2801 (2813) (Ker) : 2011(1) KLJ 764 ]. [s 162.3] Summary of gist.— The prohibition extends to all statements (confessional or otherwise) during a police investigation made by any person (whether accused or not, or in police custody or not) whether reduced to writing or not, subject to the proviso [Naresh, 46 Cal WN 180, 185]. In view of the ban in the section no witness can be asked what he said to the police during the investigation nor may a police officer be asked what a witness said to him, nor may any bystander be questioned as to what he heard another person say to the police during the investigation [Bana Singh v Emperor, AIR 1928 Rang 150 : 29 Cr LJ 701].

The practice of reading over police statements during investigation to witnesses before they enter the box is not healthy. It does not amount to contravention of the prohibition in sub-section (1) and the evidence of the witnesses does not become inadmissible but it may affect the probative value of the evidence. Hence the evidence has to be carefully considered in view of the facts and circumstances of each case [Nathu Manchhu v State of Gujarat, AIR 1978 Guj 49 FB : 1978 Cr LJ 448 : (1977) 18 Guj LR 1041].

Section 162 does not apply to statements made in an investigation other than that which results in a trial in which those statements are sought to be used [Doman v Surajdeo, 1970 Cr LJ 350 (Pat). See also State of UP v Sashi Sikhar, 2004 Cr LJ 2961 (All) : 2004 All LJ 1804 : 2004 (2) All CrR 1088].

The section applies to the trial of both summons and warrant cases [Dinanath, 40 Cr LJ 409]. Statement of accused before the police cannot be used as substantive evidence [Rema Naik v State, AIR 1965 Ori 31 : 1965 (1) Cr LJ 315 : 30 Cut LT 517].

Section 162, Code of Criminal Procedure, 1973 imposes a complete ban on the use of statements recorded by the police officer under section 161, Code of Criminal Procedure, 1973 for the purpose of corroboration or as substantive evidence. Such a statement can be used by the accused, and with the permission of the Court by the prosecution, only for the purpose of contradicting the witnesses who has made such a statement in the manner provided by section 145 of the Evidence Act. The question whether the statements are honestly and faithfully recorded by the police officer is, entirely irrelevant. [Prakash Sen v State, 1988 Cr LJ 1275 : 1988 (1) Cal LT 360 (Cal)].

Any statement or correction made by the deceased under section 161, Code of Criminal Procedure, 1973, in his/ her dying declaration is admissible under section 32, Evidence Act, and is exempted from the bar of section 162, Code of Criminal Procedure, 1973 [Patel Hira Lal Jatiram v State of Gujarat, 2002 SCC (Cri) 1 : AIR 2001 SC 2944 : 2002 (1) Crimes 94 ]. [s 162.4] “Any person”. [Accused].— (See ante, section 160).—

The words were in many cases held to apply to witnesses only and not the accused [Azimaddy, 54 C 237; Jagwa, 5 P 63; Fauzdar, 55 A 462] but the minority view was that they applied to both [Syamo, 55 M 903] and finally the Privy Council agreeing with the latter held that they included any person who may ultimately be accused [Pakala Narayana, 43 Cal WN 437, 481– 482 : AIR 1939 PC 47 : followed by Supreme Court in Mahabir Mandal v State of Bihar, AIR 1972 SC 1331 : 1972 Cr LJ 860 : (1972) 1 SCC 748 (SC)].

Page 5 of 23 [s 162] Statements to police not to be signed: Use of statements in evidence.— Absence of statement by the accused cannot also be considered against him [Bhatta, 48 Cr LJ 763]. An accused making a statement and assisting the prosecution is “any person” [Manmohan, AIR 1930 P 510]. An approver is included [Hazara, AIR 1928 L 257; Asa, AIR 1934 L 102]. [s 162.5] “Police officer”.— The clinching attribute of an investigating “police officer” under chapterXII is the power to initiate prosecution by filing a charge-sheet before the Magistrate under section 173 [Balkishan A Devidayal v State of Maharashtra, AIR 1981 SC 379 : 1980 Cr LJ 1424 : (1980) 4 SCC 600 (SC); (Badku Joti Savant v State of Mysore, AIR 1966 SC 1746 : 1966 Cr LJ 1353 (SC) followed)], “Police officer” investigating under the preventive sections of the Code does not act under section 162 [Hari Singh, 56 M 987]. A confession made to an excise sub-inspector has to be excluded because it is a statement during the course of investigation to a person who exercises the power of an officer in charge of a police station [Rajaram Jaiswal v State of Bihar, AIR 1964 SC 828 : 1964 (1) Cr LJ 705 (SC)]. As to “police officer” see section 25 of Sarkar’s Evidence Act, 13th Edn, pp 290–291. [s 162.6] Following are not police officers.— Customs officer under Customs Act, 1962 [Ramesh Chandra Mishra v Vijay Shankar, AIR 1970 SC 940 : 1970 Cr LJ 863 (SC); Jethmal v UOI, AIR 1970 SC 1310 : (1970) 2 SCC 301 ; Illias v Collector of Customs, AIR 1970 SC 1065 : 1970 Cr LJ 998 ]. Customs and excise officer under Central Excise and Salt Act, 1944 [Badku Joti Savant v State of Mysore, AIR 1966 SC 1746 : 1966 Cr LJ 1353 (SC)]; Excise officer acting under the Opium Act [Keratali, 38 Cal WN 1005] : Customs officer under the Bengal Excise Act [Ghulam, AIR 1939 C 623—Contra: Tura, AIR 1930 C 710; Jogendra, 40 Cal WN 29; Bhikari, AIR 1945 N 217 (under the CP Excise Act); Commercial tax officer [Re Venugopal Naidu, AIR 1948 Mad 39 : (1947) 48 Cr LJ 983 : 1947 (2) Mad LJ 164 : 60 Mad LW 491], Prohibition officer under the Madras Prohibition Act [Rangareddy, AIR 1959 AP 81 ]. Officer of Railway Protection Force making enquiry under section 8(1) of Railway Property (Unlawful Possession) Act, 1966 [State of UP v Vyas Tewari, AIR 1981 SC 635 : 1981 Cr LJ 38 : 1981 SCC (Cri) 361 (SC)]. In order that an investigating officer under any other Act be regarded as a “police officer” he must be invested with the powers of police officer in charge of a station [Re Someshwar H Shelat, AIR 1946 Mad 430 : (1946) 47 Cr LJ 865 : 1946 (1) Mad LJ 363 : 59 Mad LW 252; Public Prosecutor v Parama Sivam, AIR 1953 Mad 917 : 1953 Cr LJ 1693 : 1953 (2) Mad LJ 189 : ILR (1954) Mad 57 (Prohibition officer under Opium Act)]. [s 162.7] “In the course of an investigation”.— Section 162 does not refer to every statement recorded by the police, but only to statement in the course of an investigation under chapter XII into cognizable and non-cognizable offences. The ban under section 162 does not apply to any statement to the police before starting investigation. Thus, the complainant’s statement as recorded by the police in general diary may be used to corroborate his case that he made the same remark then as he does now in the Court [Asoke, 24 Cal WN 651 : AIR 1950 C 802]. A statement of an accused made to the police officer prior to the commencement of investigation cannot be hit by section 162 [State v Memon Mohamad Husain Ismail, AIR 1959 Bom 534 : 1959 Cr LJ 1419 : 61 Bom LR 715 : ILR (1959) Bom 1244 ; Ramji Sonkar v State of WB, 2004 Cr LJ 4398 : 2004 (3) Cal HN 647 (Cal)]. All information received after the commencement of investigation is covered by sections 161 and 162 [State of Bombay v Rusy Mistry, AIR 1960 SC 391 : 1960 Cr LJ 532 ; Supdt and Remembrancer of Legal Affairs v Ram Ajodhya Singh, AIR 1965 Cal 348 : 1965 (2) Cr LJ 79 ; Randhir Singh v State, 1980 Cr LJ 1397 (Del)]. The question whether investigation had commenced or not is a question of fact and it does not depend upon any irregularity committed by the police officer in the matter of recording the first information [Nanavati KM v State of Maharashtra, AIR 1962 SC 605 : 1962 (1) Cr LJ 521 : 1962 Supp (1) SCR 567]. If the information given on telephone to the police officer is not cryptic and on the basis of that information the officer in-charge is prima facie satisfied about the commission of a cognizable offence and he proceeds after recording such information to investigate such offence then any statement made by any person in respect of the said offence including about the participants shall be deemed to be a statement covered by section 162, Code of Criminal Procedure, 1973 [Damodar v State of Rajasthan, 2003 Cr LJ 5014 (5018) (SC) : AIR 2003 SC 4414 : 2003 (4) Crimes 98 ]. The prohibition contained in section 162 relates to all statements made during the course of an investigation. It cannot be set at naught by the police officer not himself recording the statement but having made it in the form of a communication addressed by the person concerned to the police officer [Kaliram v State of HP, AIR 1973 SC 2773 : 1974 Cr LJ 1 : (1973) 2 SCC 808 ; (Sitaram v State of UP, AIR 1966 SC 1906 : 1966 Cr LJ 1519 (SC) distinguished)].

If the Police officer refuses to report a counter-complaint, it is open to the magistrate at any stage to direct the police to register the complaint brought to his notice and investigate the same. Such a direction would not be hit by section 162, Code of Criminal Procedure, 1973. Section 162 does not refer to registration of a case. It only

Page 6 of 23 [s 162] Statements to police not to be signed: Use of statements in evidence.— speaks of a statement to be recorded by the police in the course of the investigation [Upkar Singh v Ved Prakash, AIR 2004 SC 4320 : 2005 SCC (Cri) 211 : 2004 Cr LJ 4219 : 2004 (4) Crimes 20 ].

Statement made by accused while in custody in media interview arranged by the police should not be attached any credibility or weight irrespective of the fact whether the statement was made to a police officer within the meaning of section 162, Code of Criminal Procedure, 1973 or not [State (NCT of Delhi) v Navjot Sandhu, 2005 Cr LJ 3950 (4021) (SC) : AIR 2005 SC 3820 : 2005 (3) Crimes 87 : 2005 SCC (Cri) 1715 ].

No Court has power to give direction to the concerned police station to include any person in any criminal case [Director, CBI v Niyamavedi, 1995 Cr LJ 2917 : (1995) 3 SCC 601 : 1995 (2) Crimes 252 (SC)].

Court should refrain from disclosing in its order, materials contained in diaries and statements especially when investigation in the case is in progress. It should also refrain from making any comments on the manner in which investigation was being conducted by CBI, when investigation is far from complete. Any observations, which may amount to interference should not be made. Court should refrain from interfering with investigation at premature stage as that may derail and demoralise investigation [Director CBI v Niyamavedi, 1995 Cr LJ 2917 : 1995 SCC (Cri) 558 : (1995) 3 SCC 601 : 1995 (2) Crimes 252 ].

An inquiry by the police for action under section 107 [Pritam Singh v Ranjit Singh, AIR 1972 Raj 59 : 1972 Cr LJ 337 : 1971 Raj LW 330 ] or on a petition under section 145 [Padmaraju Konetiraju v Padmaraju Subbaraju, AIR 1954 Mad 1019 : 1954 Cr LJ 1565 : 1954 Mad WN 462], is not an investigation underchapter XII and there is no ban on the statements made therein. Investigation must be under chapter XII and not under chapter XIV [section 196(6) or chapter XV (section 202) or other provisions [Shyamlal Sharma v King Emperor, AIR 1949 All 483 , 490 : (1949) 50 Cr LJ 719 : 1949 All LJ 350 FB] or under chapter VIII [Hari Singh, 56 M 987; Burjorji, 33 Cr LJ 797; see, however, Rasulbux, AIR 1942 SC 122 ]. Investigation of a non-cognizable offence does not cease to be under chapter XII because not properly authorised by section 155 (2) [Shyamlal Sharma v KingEmperor, AIR 1949 All 483 , 491 : (1949) 50 Cr LJ 719 : 1949 All LJ 350 FB]. An investigation starts from the first step taken by the police towards the ascertainment of the offence and the culprit and not before that [Bhondu v Rex, AIR 1949 All 364 : 1949 All LJ 174 : (1949) 50 Cr LJ 561 ; Shyamlal, supra], or from the moment the police officer forms the opinion that there are grounds for investigation [Sit Ro, AIR 1936 R 455]. Once investigation has started on information however incomplete, all subsequent information given is hit by section 162 [Satkumar v State of Haryana, AIR 1974 SC 294 : 1974 Cr LJ 345 : (1974) 3 SCC 643 : 1974 SCC (Cri) 173 ; Moti Singh v Emperor, AIR 1948 All 289 : (1948) 49 Cr LJ 367 : 1948 All LJ 53 : ILR (1948) All 119 ; Jainand (Dr) v Rex, AIR 1949 All 291 : (1949) All LJ 60 : (1949) 50 Cr LJ 498 ]. A test identification is part of an investigation [Lajja Ram v State, AIR 1955 All 671 : 1955 Cr LJ 1547 ; Satya Vir v State, AIR 1958 All 746 : 1958 Cr LJ 1266].

The words “in the course of” import that the statement must be made as a step in a pending investigation to be used in that investigation. So a report to a Thana quite independently of the investigation which had already started after the FIR is not affected by section 162 [Aftab, AIR 1940 A 291; Suba Chaudhury v The King, AIR 1950 Pat 44 : (1950) 51 Cr LJ 331 : ILR 28 Pat 762]. A statement of the accused [Subba, supra] or the complainant [Mazarali, 34 Cr LJ 870] before the starting of investigation is not within the section. On being told of a shooting by a constable, a police officer went to the place and took the statement of a witness. It was not in the course of an investigation [Mylasami, AIR 1939 M 66]; so also the statement of a person taken by the police after receipt of his telegram [Chidambaram, AIR 1928 M 791].

When after investigation the accused was not challenged but was summoned on a complaint, section 162 applies [Hari Gope, 28 Cr LJ 14]. When information given is not recorded in disregard of section 154 but the police starts investigation, the statements made are within the section [Sahed Ali, AIR 1937 C 309; Re GR Macfarland, AIR 1961 AP 3 : 1961 (1) Cr LJ 33 : 1960 (2) Andh WR 73 : 1960 Mad LJ (Cri) 477; Narayana, AIR 1952 M 821]. Prohibition does not apply to statement made after the investigation is finished [Nga Than, 4 R 72].

Page 7 of 23 [s 162] Statements to police not to be signed: Use of statements in evidence.— Complaints or new cases or embezzlement during investigation which show how fresh instances came to be investigated are not affected by section 162 [Swaminathan, AIR 1945 M 284]. A Magistrate deputed by the district magistrate to witness the taking of bribe wrote a report of the event addressed to the latter and made it over to the police officer for delivery. It was a statement but not to the investigating officer [Shyamlal Sharma v King Emperor, AIR 1949 All 483 : (1949) 50 Cr LJ 719 : 1949 All LJ 350 FB]. When subsequent to FIR the accused voluntarily makes a report to the police by way of defence or reply, it is not made in the course of investigation and is admissible under section 8 Evidence Act [Bhagi v Emperor, AIR 1941 Oudh 359 1641 Cr LJ 539; see Re Guruswami Tevan, AIR 1939 M 780 : (1939) 40 Cr LJ 922 ].

Where a police officer without registering a FIR of an offence under section 5(1)(c) of the Prevention of Corruption Act and without the sanction of the Magistrate under section 5A, proceeds with the investigation, the statements recorded would be hit by this section. Subsequent record of statements after registration of FIR and sanction would not affect the investigation [Re GR Macfarland, AIR 1961 AP 3 : 1961 (1) Cr LJ 33 : 1960 (2) Andh WR 73 : 1960 Mad LJ (Cri) 477]. Inspector of Anti-Corruption Department on receipt of a complaint arranged the raid and thereafter examined the witnesses under section 161 and completed the investigation. The fact that later on he forwarded the complaint to police station for formal registration did not do away with the character of investigation disclosing a cognizable offence. Therefore, any statement made to him in answer to questions was inadmissible under section 162 [Mahasingh v State (Delhi Administration), AIR 1976 SC 449 : 1976 Cr LJ 346 : (1976) 1 SCC 644 ]. An entry in the General Diary on information by the accused that his wife was missing on a certain date made before investigation is not hit by section 162 [Arun Kumar Banerjee v State, AIR 1962 Cal 504 : 1962 (2) Cr LJ 354 ].

Inquiry under section 8(1), Railway Property (Unlawful Possession) Act, 1966 does not amount to an investigation within section 162 [Durga Pd., AIR 1964 SC 2136 ]. Investigation under the Bengal Excise Act is within the section and Court may direct the taking of measurements and photographs under Identification of Prisoners Act, 33 of 1920 [Gubbay, 40 Cal WN 415]. Statements in departmental inquiry is not affected by the section [Md Rahim, AIR 1935 SC 13 FB; Jagadish, AIR 1942 Oudh 163 ; see Katiappa, AIR 1937 M 492; Ibrahim, AIR 1936 N 25; Jaffar, 41 Cr LJ 948; Santiram, 58 C 96] and the mere fact that the police was present when the statement was made does not bring it within section 162 [Satyanarayana, AIR 1944 P 67]. Statement in a confidential inquiry before sanction under section 197 is not in the course of investigation [Jehangir, AIR 1927 B 501].

Where the fact that signature of maker was obtained thereon does make it admissible, Court will however consider such statement keeping in the mind the rule of caution. Therefore, the statement is admissible in evidence in civil suit [Khair Mohamed Reas Mohamed v State of Maharashtra, 1995 Cr LJ 568 : 1994 (4) Bom CR 196 (Bom)].

The statement of a witness which provides the base of first information report, cannot be regarded as a statement recorded during the course of investigation and it would not be hit by section 162, Code of Criminal Procedure, 1973. [Shekh Ishaque v State of Bihar, 1995 Cr LJ 2682 : (1995) 3 SCC 392 : 1995 (2) Crimes 294 (SC)].

Earlier complaint filed by some other person is not a bar to file another complaint since the complaint was with regard to grievance of other person, particularly when the allegations were not similar or same [Radheshyam Goswami v State of Jharkhand, 2007 Cr LJ NOC 24 : 2006 (3) AIR Jhar R 271 (Jhar)].

Statement of the co-accused given to police during course of investigation is hit by section 162, Code of Criminal Procedure, 1973. [Ajay Pandey v Jharkhand, 2006 Cr LJ (NOC) 320 : 2006 (2) AIR Jhar R 52 (Jhar)]. [s 162.8] “Used for any purpose....at any inquiry or trial”.— Means actual user in the proceedings in the Court and not user de hors the Court proceedings. The object is not to shut out substantive evidence given by competent witness on the basis of user of statements de hors the

Page 8 of 23 [s 162] Statements to police not to be signed: Use of statements in evidence.— proceedings, before the witness entered the box [Nathu Manchhu v State of Gujarat, AIR 1978 Guj 49 : 1978 Cr LJ 448 : (1977) 18 Guj LR 1041 FB (various forms of user and illustrative cases stated)]. [s 162.9] Prohibition applies to use only at the trial of offence investigated.— The prohibition applies to the use of the statement “at any inquiry or trial in respect of any offence under investigation”. It has no application, for example, in a civil proceeding or in a proceeding under Articles 32 or 226 of Constitution. [Khatri v State of Bihar, AIR 1981 SC 11068 : 1981 Cr LJ 597 : (1981) 2 SCC 493 (SC)] or at a trial for another offence for which the maker of the statement is prosecuted [Jogesh, 35 Cal WN 838; Doman Mahton v Surajdeo Prasad, AIR 1970 Pat 95 : 1970 Cr LJ 350 : 1970 BLJR 926 see Parmu, 1940 Nag 320; U Htin, AIR 1927 R 113]. Thus, if in an investigation of theft A says to the police that B and C beat him, that statement can be proved when D and E are being tried for assault [Subayya, 54 M 154]. Statement made by B to the police in a theft case against A may be used against B in a subsequent proceeding for maintenance by B against her husband C [Pattammal v M Munuswami, AIR 1966 Mad 392 : 1966 Cr LJ 1275 : 1966 Mad LW 123 : 1966 (1) Mad LJ 540]. An enquiry by the police on a petition under section 145, or a proceeding before a Magistrate under section 145 is not in respect of an “offence”. So cross-examination of a witness in regard to statement before the police is not hit by section 162 [Padmaraju Konetiraju v P Subbaraju, AIR 1954 Mad 1019 : 1954 Cr LJ 1565 : 1954 Mad WN 462]. A person who made a statement during a dacoity investigation was murdered. Its use is not prohibited in the murder trial [Abdul Aziz, AIR 1932 A 442]. A statement during investigation of an offence is admissible in another trial even if it is not reduced to writing [Baijanth, AIR 1936 L 359]. Statement made during investigation of an offence can be used as the first information report under section 154 [Afiladdin, 58 Cal WN 515].

In a writ petition under Article 32 by certain under-trials on allegation of their blinding by police during their detention in police custody, production of reports containing statements made by them submitted by police officer after investigation in compliance with enquiry ordered by State is not barred by sections 162 or 172 [Khatri v State of Bihar, AIR 1981 SC 1068 : 1981 Cr LJ 597 : (1981) 2 SCC 493 (SC)]. [s 162.10] What is a “Statement”?— “Statement” refers to the statement recorded under sections 160, 161 [Sheobalak, AIR 1928 N 108]. The word “Statement” includes both oral and written and also signs and gestures [Asan Tharajii Baby v State of Kerala, 1981 Cr LJ 1165 : 1981 Mad LJ (Cri) 425 (Ker)]. The expression “Statement” or any part of such “statement” takes in all the statements given by a witness at different stages or on different dates to same or different investigating officers [Asan, supra]. A statement before the police is not evidence [Mangalram, 65 Cal WN 645]. A “statement” (oral or written) is a narration addressed to some person for whom it is meant and not to all who may overhear or who may happen to read it when written [Shyamlal Sharma v King-Emperor, AIR 1949 All 483 , 489 : (1949) 50 Cr LJ 719 : 1949 All LJ 350 FB]. The dictionary meaning of “statement” is the act of stating or reciting. Prima facie, a statement cannot take in an omission. But, sometimes to make a statement sensible or self-consistent, it becomes necessary to imply something not expressly stated. In such cases an omission may be used for contradiction as a part of the statement recorded [Tahsildar Singh v State of UP, AIR 1959 SC 1012 : 1959 Cr LJ 1231 : Supp 2 SCR 875; see post “Omissions in the Statement”]. Every statement made to a person assisting the police during investigation cannot be treated as a statement to the police. Whether it was made to another person or it was intended for the police is a question of fact to be determined according to the circumstances of each case [Shiv Bahadur Singh v State of Vindhya Pradesh, AIR 1954 SC 322 : 1954 SCR 1098 : 1954 Cr LJ 910 ; Hakam, AIR 1940 L 129; Abdul Kader, 50 Cal WN 88]. If it is found that a statement to a third person was really intended for the police, it is excluded by the section [Hakam, supra]. Once a statement is reduced to writing, it comes within section 162 no matter where it is written [Mobarak, 40 Cr LJ 386]. It is a statement reduced to writing even if it is not fully recorded but is a gist or memorandum [Najibuddin, AIR 1933 P 589; Mafizuddi, 31 Cal WN 940; Bansidhar, 32 Cr LJ 562; Vishwanath, AIR 1936 N 249; Ajit, AIR 1945 C 159]. Notes of statement incorporated in a notebook are statements [Lakshman, 52 Cal WN 401]. Notes on site plan prepared in accordance with the various situations pointed out by witnesses are statements [Jit Singh v State of Punjab, AIR 1976 SC 1421 : 1976 Cr LJ 1162 : (1976) 2 SCC 836 ]. Site plan of place of occurrence prepared in consequence of a statement made by some witness is statement [Satkumar v State of Hyaryana, AIR 1974 SC 294 : 1974 Cr LJ 345 : (1974) 3 SCC 643 ]. Letter addressed by a constable to Station House Officer containing narration of what he had been told by the accused during investigation is statement [Kaliram v State of HP, AIR 1973 SC 2773 : 1974 Cr LJ 1 : (1973) 2 SCC 808 ]. Statements made under section 16; during investigation of the cross-case is inadmissible [Gajendra Singh v State of UP, AIR 1975 SC 1703 : 1975 Cr LJ 1494 : (1975) 4 SCC 241 ]. Statement recorded during inquest under section 174 attracts section 162 [Razikram Chaudhary v Chaudhary Jaswant Singh, AIR 1975 SC 667 : (1975) 4 SCC 769 ]. So also, signed

Page 9 of 23 [s 162] Statements to police not to be signed: Use of statements in evidence.— statement of alleged eye witness annexed to inquest report [Dattar Singh v State of Punjab, AIR 1974 SC 1193 : 1974 Cr LJ 908 : (1975) 4 SCC 272 : 1975 SCC (Cri) 530 ].

Statement of a prosecution witness that he mentioned the fact of his recognition of the accused to the police officer is undoubtedly a “statement” [Nitai, 1939 (1) Cal 337 ]. Statement by a police officer in answer to a question that he had examined two witnesses for defence but both of them denied being present at the occurrence, is barred [Bhagirath, 30 Cal WN 142].

Section 162 bars the use of the particular statement made to the investigating officer, but not the use of identical or similar statement made to others [Shyamlal Sharma v King-Emperor, AIR 1949 All 483 , 493 : (1949) 50 Cr LJ 719 : 1949 All LJ 350 FB (report of what took place at investigation sent to the district magistrate and a copy to the investigating officer)].

FIR is not a statement covered by section 162 [Azimaddy, 54 C 237]. A statement by a witness to the police that he knew nothing of the occurrence or that he did not say anything to the police about the occurrence, is not a “statement” [Aseruddin, 53 C 980; see Md Adam, 38 Cr LJ 327]. Previous statement of the panchas in the pre-trap and post-trap panchnamas in a corruption case are not statements [Vishnu Krishna Belurkar v State of Maharashtra, 1975 Cr LJ 517 : 76 Bom LR 627 : 1974 Mah LJ 789 (Bom—FB)].

Circumstances when the Panchnama is inadmissible.—The Panchnama will be inadmissible in the Court of law in the following circumstances:

(i)

The Panchnama recorded by the Investigating Officer under his supervision should not be hit by section 162 of the Code. The procedure requires the Investigating Officer to record the search proceedings as if they were written by the panch witnesses himself and the same should not be recorded in the form of examining witnesses as laid down under section 161 of the Code.

(ii) The Panchnama must be attested by the panch witnesses for it to be valid in the eyes of law. In case of a literate panch witness, he must declare that he has gone through the contents of Panchnama and it is in tune with what he has seen in the places searched, whereas for illiterate panch witness, the contents should be read over to him for his understanding and then the signature should be appended. If the above said declaration is not recorded, then the panchnama document will be hit by section 162 of the Code [Yakub Abdul Razak Memon v State of Maharashtra, (2013) 2 Mad LJ 129 : 2013 (4) Scale 565].

Statement of a prosecution witness in cross-examination that he had not named the accused though the police officer had deposed that he did, is no disregard of section 162 [Sagarmal, AIR 1944 P 390]. Explanatory remarks of police officer in reference to his own conduct even though inferentially it may refer to statement of witness, is admissible [Tota Miah, AIR 1929 C 298; Basant, AIR 1930 L 484]. Police officer may explain his conduct by saying that he received no information to a certain effect during the investigation [Mohanlal, 32 Cr LJ 682].

Where before going into the witness box if police had read over to witnesses their statements due to such happening their evidence would not be unbelievable and inadmissible [Ali v State of Kerala, 1995 Cr LJ 2974 (Ker)].

Page 10 of 23 [s 162] Statements to police not to be signed: Use of statements in evidence.— After institution of a case first in point of time for same set of occurrence, subsequent written report would be deemed to be a statement of witness and could not be treated as an FIR [Ram Chandra Yadav v State of Jharkhand, 2007 Cr LJ 472 (Jharkhand)].

Initial FIR was registered under sections 324/323 Indian Penal Code, 1860 upon information of quarrel and assault given to police and another FIR was lodged Under sections 300, 307, 149, 148, 147 of Indian Penal Code, 1860 in respect of subsequent occurrence that took place two hours later at the same place, wherein one person was killed and another injured. Subsequent FIR was not hit by section 162, Code of Criminal Procedure, 1973 [Jeetlal Mahato v State of Jharkhand, 2007 Cr LJ 672 (Jharkhand)]. [s 162.11] Handwriting.— An accused giving his handwriting or finger impression at the request of the police for comparison does not give a statement [State v Abu Ismail Merchant, AIR 1959 Bom 408 : 1959 Cr LJ 1057 : 61 Bom LR 345 : ILR (1959) Bom 865 ; Re Mahalingayya Muddayya Pujari, AIR 1959 Mys 185 : 1959 Cr LJ 881 : 1959 Mad LJ (Cri) 337; Ramarao, AIR 1932 B 406]. Giving finger impression or specimen writing or showing parts of the body of an accused for identification are not included in the expression to be a witness in Article 20(3) of Constitution. [State of Bombay v Kathikalu Oghad, AIR 1961 SC 1808 : 1961 (2) Cr LJ 856 : 1962 (3) SCR 10 ; Followed in Boota Singh, AIR 1978 SC 1770 ]. [s 162.12] Identification, Gesture, Nod, Conduct.— Fact of identification by a witness in a test parade before the police amounts to a statement within section 162 and is hit by it [Krishna Ch, 39 Cal WN 488 (dissented from in Lala Lalung, 42 Cal WN 620); Krishna Kahar, 43 Cal WN 1117; see Harendra, 40 CLJ 313; Keramat, 42 CLJ 524 : AIR 1926 C 320; Radhanath, 58 Cal WN 243]; so also, identification of stolen property during investigation. Section 162 embraced all kinds of statements made to the police during investigation. Identification by pointing out with finger or by nodding of head or by nod of assent in answer to a question is as much a verbal statement as a statement by word of mouth [Khabiruddin, 48—Cal WN 356, 359 : AIR 1943 C 644]—Contra: section 162 excludes evidence about the statement made by witnesses at the identification parade, but not the fact that witnesses have been identified [Kshatri Ram, AIR 1941 M 675; Ramadhin, AIR 1929 N 36]. The question has been settled by the Supreme Court which (approving the Calcutta case of Khabiruddin, supra) held that when the purpose of identification is borne in mind (viz., that the property identified is the subject of offence or the person is concerned in the offences) it is clear that the identification by finger, touch, nod or assent in answer is a statement express or implied amounting to a communication of the fact of identification by the identifier to another person and comes within the ban of section 162 [Ramkishan Mithanlal Sharma v State of Bombay, AIR 1955 SC 104 : 1955 Cr LJ 196 : 1955 (1) SCR 903 ]. Evidence of identification before the police and Panchayatnama signed by Panchayatdars are inadmissible [Re Gopisethi Chinna Venkata Subbaiah, AIR 1955 AP 161 : 1955 Cr LJ 1152 : 1955 Andh LT (Cri) 91 : 1955 Andh WR 220]. If after arranging the parade the police leaves the field and allows identification to be made under the exclusive direction of Panch witnesses, the statement of the identifying witnesses would be outside the purview of section 162 [Santa Singh v State of Punjab, AIR 1956 SC 526 : 1956 Cr LJ 930 ; Ram Kishan, supra].

The Investigating agency is not obliged under the law to hold test identification parade. Court can accept the evidence of identification without insisting on corroboration [Malkhan Singh v State of MP, AIR 2003 SC 2669 : 2003 Cr LJ 3535 : 2003 (3) Crimes 123 : (2003) 5 SCC 746 ].

Identification by a person in custody of another does not amount to making a statement falling under section 162, Code of Criminal Procedure, 1973. It would be admissible under section 8 of Evidence Act as a piece of evidence relating to conduct of the accused persons in identifying the dead bodies of the terrorists [State (NCT of Delhi) v Navjot Sandhu, 2005 Cr LJ 3950 (SC) : AIR 2005 SC 3820 : 2005 (3) Crimes 87 : 2005 SCC (Cri) 1715 ].

Some cases sought to make a distinction between actual fact of identification which is a mental act (recognition, i.e., seeing an object or person and recognising) and its communication to a third person which is a statement. The latter was hit by section 162 but not the former. But no distinction could be legitimately made between an actual verbal statement and some action on the identifier’s part disclosing the fact of his identification. Thus, a

Page 11 of 23 [s 162] Statements to police not to be signed: Use of statements in evidence.— witness may say in Court that he saw the accused mix up with others in Thana and picked him out. But he cannot say that he told the police that he had recognised the accused and he cannot either be corroborated by the police officer or any other person present then [Re Surendra Dinda v The Emperor, AIR 1949 Cal 514 : (1947) 48 Cr LJ 804 ; followed in Darayao Singh v State, AIR 1952 All 59 : 1952 Cr LJ 265 : 1951 All WR 622]. The Supreme Court observed that the distinction made in these cases is quite logical and the communication of the mental act of identification tantamounts to a statement. The physical act of identification has, thus, no separate existence apart from the statement involved in the very process of identification and in so far as a police officer seeks to prove the fact of such identification, his evidence would be inadmissible under section 162, the only exception being the evidence sought to be given by the identifier himself in regard to his mental act of identification which he could be entitled to give by corroboration of his identification of the accused at the trial [Ram Kishan Mithonlal Sharma v State of Bombay, AIR 1955 SC 104 : 1955 (1) SCR 903 : 1955 Cr LJ 196 ]. So, excepting the evidence of the identifier himself as to his mental act of identification by way of corroboration at the trial, all other evidence regarding the process of identification at the parade involving statement by witnesses including signs, gestures &c would be inadmissible [Re Moorthy, AIR 1956 Mad 536 : 1956 Cr LJ 1202 : 1956 (2) Mad LJ 43 : 69 Mad LW 788].

Statement by a witness at the time of the test identification parade if recorded by the magistrate under section 164 is not substantive evidence [Sheik PinjuvState, AIR 1952 Cal 491 : 1952 Cr LJ 1027 ; Kanai Lal Dwary v State, AIR 1950 Cal 413 : (1950) 51 Cr LJ 1520 ]. Statement by prosecution witnesses corroborating the prosecution that he identified the accused before the police is hit by section 162 [Bholanath, 43 Cal WN 1180]. Evidence of a tracker as to tracks is not shut out [Mor Md, AIR 1940 SC 168 ]. As to identification evidence generally, see Sarkar’s Evidence Act, 13th Edn, pp 97–101.

Statement as to identification of places to the police is affected by section 162 [Keramat, AIR 1926 C 320]. It is not admissible as evidence of conduct [Hira, AIR 1919 B 162; Dhuman, AIR 1937 SC 251 ; see Sarkar’s Evidence Act, 13th Edn, p 87].

Conduct in certain circumstances includes statements as well as acts. A statement must consist of words. The fact that the accused handed over certain articles is not a statement [Nanua, AIR 1941 A 145]. Evidence relating to the conduct of an accused (not amounting to a statement) when confronted or questioned by a police officer during the course of investigation is not excluded by section 162 [Prakash Chand v State (Delhi Administration), AIR 1979 SC 400 : 1979 Cr LJ 329 : (1979) 3 SCC 90 (SC) (HP Administration v Omprakash, 1972 SC 975 : (1972) 1 SCC 249 : 1972 Cr LJ 606 ; Zwinglee Ariel v State of MP, AIR 1954 SC 15 : 1954 Cr LJ 230 ; Shiv Bahadur Singh v State of Vindhya Pradesh, AIR 1954 SC 322 : 1954 Cr LJ 910 (SC); State of Madras v Vaidyanatha Iyer, AIR 1958 SC 61 : 1958 Cr LJ 232 (SC) relied on)].

What is excluded by section 162 of the Code of Criminal Procedure, 1973 is the statement made to a police officer in the course of investigation and not the evidence, relating to the conduct of an accused person (not amounting to a statement) when confronted or questioned by a Police Officer during the course of an investigation. For example, the evidence of the circumstance, simpliciter, that an accused person led a police officer and pointed out the place where stolen articles or weapons which might have been used in the commission of the offence were found hidden, would be admissible as conduct under section 8 of the Indian Evidence Act, irrespective of whether any statement by the accused contemporaneously with or antecedent to such conduct falls within the purview of section 27 of the Evidence Act [Prakash Chand v State (Delhi Administration), (1979) 3 SCC 90 ; Himachal Pradesh Administration v Om Prakash, (1972) 1 SCC 249 ; Chandra Prakash v State of Rajasthan, (2014) 8 SCC 340 : 2014 Cr LJ 2884 ].

As to production of articles as evidence of conduct under section 8, Evidence Act, see Nanua, supra; Rafiquddin, 62 C 572 and Sarkar’s Evidence Act, 13th Edn, pp 80, 85, 88–90. [s 162.13] List of stolen articles.— Given to the police during investigation is a statement hit by section 162 [Mohsena, 43 Cal WN 893, 895; Fulbash, AIR 1929 C 448; Sucha, AIR 1932 L 488; Kashmira Singh v The Crown, AIR 1949 E Punj 361 : (1950) 51 Cr LJ 177 : 51 Punj LR 215; Amar Singh v The Crown, AIR 1949 E Punj 315 : (1949) 50 Cr LJ 794 : 51 Punj LR 110; Jagat, 5 DLR (P) 128; Chandrama Prasad Chamar v State, AIR 1955 NUC 1066 : 1951 (1) Cal 539 —

Page 12 of 23 [s 162] Statements to police not to be signed: Use of statements in evidence.— Contra: Brijlal, AIR 1943 A 216 : 44 Cr LJ 555] but not a list to supplement the FIR given before investigation [Autar, 31 Cr LJ 1017; Amrit, AIR 1933 L 987; Narain, AIR 1931 O 83] or shortly after FIR when the police goes to the spot for investigation [Bhondu v Rex, AIR 1949 All 364 : (1949) 50 Cr LJ 561 : 1949 All LJ 174; Chimna v The State, AIR 1961 Raj 35 : 1961 (1) Cr LJ 310 : 1960 Raj LW 411 ]. A memo of articles made over by witnesses to the police as stolen property and signed by them with remarks as to how they were recovered is a statement within section 162 [Khabiruddin, 48 Cal WN 356, 358]. [s 162.14] Inquest report.— Is not within section 161 [Rajeswari, 37 Cal WN 752; see Banta, 31 Cr LJ 444], but statements of witnesses recorded in the report are covered by section 162 [Hansraj, AIR 1936 L 341; Razikram Chaudhary v Chaudhary Jaswant Singh, AIR 1975 SC 667 : (1975) 4 SCC 769 ; Naushad v State of Kerala, 2006 Cr LJ 1089 (Ker)] and any confessional statement by the accused in it is inadmissible [Deorao v Emperor, AIR 1946 Nag 321 : 1946 Nag LJ 656 : (1946) 47 Cr LJ 918 ].

Recital in Inquest report regarding time of death of the deceased as 10 pm instead of 10 am is not material. [Periasami v State of TN, 1996 AIR SCW 4097 : 1997 Cr LJ 219 : (1996) 6 SCC 457 (SC)]. [s 162.15] Maps.— Statements of witnesses or remarks in maps of place of occurrence or marks on it on the basis of a statement during investigation are hit by section 162, e.g., “deceased stood here and received lathi blows from the accused”, “route taken by deceased when chased by accused” [Bhagirathi, 30 Cal WN 142 : 27 Cr LJ 222 (relied on in Tori Singh v State of UP, AIR 1962 SC 399 : 1962 (1) Cr LJ 469 : 1962 (3) SCR 580 ; Lakhan Vaish v State, AIR 1958 All 445 : 1958 Cr LJ 722 ; Satya Vir v State, AIR 1958 All 746 : 1958 Cr LJ 1266 ; Kunnummal Mohammed v State of Kerala, AIR 1963 Ker 54 : 1963 (1) Cr LJ 175 : 1962 Ker LT 120 : 1963 Mad LJ (Cri) 194] as in the absence of the witnesses who gave the information, the remarks noted would be hearsay [Santa Singh v State of Punjab, A 1956 SC 526 , 528 : 1956 Cr LJ 930 ]. What the investigating officer actually saw on the spot may be legitimately marked on the map, e.g., blood upon the ground, piece of cloth found etc. Particulars from witnesses should be noted on a separate sheet of paper as index [Abinash, 28 Cal WN 95; Mofizul, 29 Cal WN 842; Latif, 37 Cr LJ 239]. In a latter case, it has been held that information derived from witnesses and recorded in the index must be proved by the witnesses themselves and not by the police officer. If sought to be proved by the latter, it would offend section 162 [Ibra Akanda, 48 Cal WN 366, 403 : AIR 1944 C 339; relied on in Tori Singh, supra); see also Mayadhar, 40 Cr LJ 625]. The question was considered by the Supreme Court. If a draftsman prepares a sketch map after ascertaining from the witnesses where exactly the assailant and the victim stood and puts down the measurements and further if the witnesses corroborated his statements, it is legal and admissible [Santa Singh, supra].

Many things mentioned in the site plan had been noted by the investigating officer on the basis of the statements given by the witnesses. The place from where the accused entered the Nohara and the place from where they resorted to firing was based upon the statement of the witnesses. It was held that the said statements were clearly hit by section 162, Code of Criminal Procedure, 1973 and that what the Investigating Officer saw and noted alone would be admissible [State of Rajasthan v Bhawani, 2003 Cr LJ 3857 : AIR 2003 SC 4230 : 2003 (3) Crimes 228 : 2003 (7) SCC 291 (SC)].

If mark of the sketch map was put by the Investigating Officer, on the basis of the statement made to him by the witness, the same is not admissible in view of the provisions of section 162, Code of Criminal Procedure, 1973 [Gabbu B Lodhi v State of MP, 2004 Cr LJ 2001 : 2003 (4) Crimes 348 : 2004 (1) Rec Cr R 859 : 2004 (1) CurCr R 264 (MP)].

Entries on the site plan preferred by draftsman and not by investigating officer regarding the place wherefrom shots were fired or other details derived from witnesses were held admissible as corroborative evidence [Jagdish Narain v State of UP, AIR 1996 SC 3136 : 1996 CrLR (SC) 215 : 1996 (1) Crimes 174 (SC)]. [s 162.16] Tape recorders.— Tape recorded conversation is admissible provided: (i) it is relevant to the matter in issue; (ii) there is identification of the voice and (iii) the accuracy is proved by eliminating the possibility of erasing the tape-record [RM Malkani v State of Maharashtra, AIR 1973 SC 157 : 1973 Cr LJ 228 : (1973) 1 SCC 471 (SC); (Usufalli,

Page 13 of 23 [s 162] Statements to police not to be signed: Use of statements in evidence.— infra: Pratap Singh v State of Punjab, AIR 1964 SC 72 (SC), relied on); Rama Reddy, A 1971 SC 1162 ; Rupchand, A 1956 Pu 173; Manindra, 67 Cal WN 191]. Where the police officer was in an inner room in which tape recorder was kept and the mike was kept concealed in an outer room in which the accused was having conversation without knowing that it was being tape recorded, the conversation was not hit by section 162 [Yusufalli Esmail Nagree v State of Maharashtra, AIR 1968 SC 147 : 1968 Cr LJ 103 ]. [s 162.17] Sting Operations.— Unlike the United States and certain other countries where a sting operation is recognised as a legal method of law enforcement, though in a limited manner, the same is not the position in India. A sting operation carried out in public interest has had the approval of the Supreme Court in RK Anand v Registrar, Delhi High Court, 2009 (8) SCC 106 : 2009 (10) Scale 164 though it will be difficult to understand the ratio in the said case as an approval of such a method as an acceptable principle of law enforcement valid in all cases [Rajat Prasad v CBI, (2014) 6 SCC 495 : 2014 Cr LJ 2941 (SC)]. [s 162.18] Recording of statement.— Merely recording the statement as stated by the witnesses cannot be called as investigation. Investigation includes examination of the witnesses, confronting the witnesses on the basis of materials collected by the investigating officer and also the version of the person who is aggrieved because of the said complaint. Mere reproduction of the complaint without proper examination cannot be called statement as recorded during investigation. [Rajesh Gutta v State of AP, 2011 Cr LJ 3506 (3501, 3511) (AP) : 2011 (5) RCR (Criminal) 452]. [s 162.19] “If reduced to writing”.— “If” shows that recording is not obligatory (ante). The practice of writing up statements at the end of the day from memory is objectionable. The statement should be recorded at the time witnesses are examined [Vishwanath, AIR 1936 N 249; see Zahid, 1937 ALJ 1253 : AIR 1938 A 91]. In the absence of reason of urgency statements should be recorded instead of taking notes for preparation of case-diary afterwards [Re Bheemavarapu Subba Reddi, AIR 1948 Mad 23 : (1947) 48 Cr LJ 973 : 1947 (1) Mad LJ 193 : 60 Mad LW 179]. It is very undesirable to record the statement of one witness and then to note that he is corroborated by others without recording their statements separately [Ramsewak, AIR 1945 P 109; Subba Reddy, supra; see ante, “How to record statements”]. Short record should be made [Guruva, AIR 1944 M 385]. In serious cases, the whole statement of persons giving important information should be taken down [Baliram, AIR 1945 N 1; Sulaiman, AIR 1929 R 87]. The notes taken in whatever form should not be destroyed [Baliram, supra; Subba Reddi, supra; Maganlal v Emperor, AIR 1946 Nag 173 : (1946) 47 Cr LJ 851 : 1946 Nag LJ 139 : ILR (1946) Nag 126 ]. Destruction or omission to keep the record in the way prescribed by law deprives the accused of a right which the Privy Council held to be a “very valuable one” [Pulukuri Kottaya v King-Emperor, AIR 1947 PC 67 : (1947) 48 Cr LJ 533 : 51 Cal WN 474, 478 : 74 IA 65 : (1947) 1 Mad LJ 219] as copies become unavailable for use under section 162. (see post, “Effect of Unavailability of Copy”). [s 162.20] “No statement shall be signed”.— Taking signature of witness is expressly prohibited [see Razikaram Chaudhary v Chaudhary Jaswant Singh, AIR 1975 SC 667 : (1975) 4 SCC 769 ; Bhupal, 44 Cal WN 451; Bhuneshwari, AIR 1951 Ori 172 ; Waris, AIR 1940 Ori 209 ; State of Kerala v Samuel, AIR 1961 Ker 99 : 1961 (1) Cr LJ 505 : 1960 Ker LT 666 : 1960 Mad LJ (Cri) 695]. By signing in the document cannot be made evidence [Narayana, 25 Cr LJ 401; Bhubneshwari, supra]. But, the Privy Council has held that when a Magistrate deputed to witness the giving of bribe gave a signed statement of the event to the investigating officer, his evidence does not become inadmissible for that though its value may be impaired. But the use of the report for refreshing memory when giving evidence makes the evidence inadmissible under the prohibition in sub-section (1) [Zahiruddin v King-Emperor, AIR 1947 PC 75 : (1947) 48 Cr LJ 679 : 51 Cal WN 555, 559 : 74 IA 80 : 49 Bom LR 521; approved in Tilakeshwar Singh v State of Bihar, AIR 1956 SC 238 : 1956 Cr LJ 441 : 1955 (2) SCR 1043 ; see Kuruvila Joseph v State, AIR 1952 Trav-Co 300 : (1952) 53 Cr LJ 1290 : 1952 Ker LT 216 ; State of Kerala v Samvel, AIR 1961 Ker 99 : 1961 (1) Cr LJ 505 : 1960 Ker LT 666 : 1960 Mad LJ (Cri) 695]. [s 162.21] Written statement of eye-witness given during investigation but not produced at the time of submission of charge-sheet—Effect.— There is no legal bar against accepting written statement of eye-witness even at the later stage of the trial, if the matter of delay is satisfactorily explained. [Ashok Kumar Rout v State of Bihar, 2006 Cr LJ 3362 (3366) (Pat) : 2006 (2) Pat LJR 574 ]. [s 162.22] Accused’s right to get copy of statements to the police.— The right to get copy of the statements of witness to the police for purpose of contradiction was first conceded

Page 14 of 23 [s 162] Statements to police not to be signed: Use of statements in evidence.— by section 162 as amended by Act 18 of 1923 which provided that the Court shall direct that the accused be furnished with a copy. It was obligatory on the Court to give copies [Ajit, AIR 1945 C 159; Madari, 54 C 307; Badruddin, 50 Cal WN 53]; Ram Gulam, AIR 1928 P 215; Murtiza, A 1934 N 138; Hari Vishinji, AIR 1935 SC 145 ]. The right is a very valuable one and often provides important material for cross-examination of prosecution witnesses [Pulukuri Kottayya v King-Emperor, AIR 1947 PC 67 : (1947) 48 Cr LJ 533 : 51 Cal WN 474 : 74 IA 65 : 1947 All LJ 355 : 60 Mad LW 258]. The provision as to grant of copy was omitted from the section by Act 26 of 1955 as in all cases instituted on police report, section 173(4) made it obligatory on the police to supply the accused with copies of statements of witnesses to the police whom they intended to examine at the inquiry or trial and of other documents. As there has been a lot of complaint regarding supply of copies by the police, in the present Code under section 173(5)–(7) the police shall supply copies to Magistrate who under section 207 shall furnish copies to the accused free of cost.

The investigating agency is bound to produce the statements recorded under section 161, Code of Criminal Procedure, 1973, along with its report and the accused is entitled to get copies of such statements in order to confront the witnesses. When more than one statement of a witness has been recorded, the accused is entitled to get copies of all such statements. This right cannot be whittled down merely by supplying the copy of only one statement. When the copies of the statements of witnesses recorded more than once are withheld and not supplied to the accused, it cannot be said to be a proper compliance of the provisions of section 173(3)(b) or section 162, Code of Criminal Procedure, 1973. The right to cross-examine and confront a witness with reference to his statement recorded under section 161, Code of Criminal Procedure, 1973 is an undefeasible right and cannot be circumvented in any manner. Failure to supply copies of the statements recorded under section 161 is bound to entail in prejudice to the accused and the extent of that prejudice cannot be properly imagined or measured or gauged [Dalla v State of Rajasthan, (1988) Cr LJ 42 : 1987 Rag LW 517 : 1987 (2) Raj LR 114 (Raj)]. [s 162.23] Effect of unavailability of copy.— The Courts are not quite agreed as to the effect of deprivation of the right to use copy due to refusal to supply or loss or destruction or because of omission to record the statement of each witness separately, or because the statements were recorded in a boiled or abbreviated form. In some cases the view taken is that it is an illegality vitiating the proceedings [Bansidhar, 53 A 458; Baliram, AIR 1945 N 1; Mafizuddi, 31 Cal WN 940; Vishwanath, AIR 1936 N 249; Dinanath, AIR 1939 P 174; Chenchu Gangi Reddi v State of AP, AIR 1955 Mad 303 : 1955 Cr LJ 817 (2) : 1954 (2) Mad LJ 462; Narapureddigari Narayanareddi v State, AIR 1952 Mad 821 : 1953 Cr LJ 29 : 65 Mad LW 238 : 1952 (2) Mad LJ 7]; and where the accused has been deprived of the right of effectively cross-examining prosecution witnesses for want of copy it is impossible to say that there has not been a failure of justice [Muzaffar, 1939 Lah 509 : AIR 1939 L 268], or not to assume prejudice to the accused [Dinanath, supra]. The other view is that infringement of the rule is an irregularity curable under section 465, it has not occasioned a failure of justice [NurMd, AIR 1930 B 595; Nga U, AIR 1935 R 98; Hari, AIR 1935 SC 145 ; Pandita Gangaram vThe Crown, AIR 1950 Nag 1 : (1950) 51 Cr LJ 235 : 1950 Nag LJ 435 : ILR (1950) Nag 229 ].

The Judicial Committee held that where the statements are not made available an inference which is almost irresistible, arises of prejudice to the accused. But unavailability does not necessarily make a trial bad if no prejudice has been caused. It is then an irregularity curable under section 465. In the case in hand copies were supplied though at a late stage and in the peculiar circumstances of the case it was held that no prejudice was caused [Pulukuri Kottaya v King-Emperor, AIR 1947 PC 67 : (1947) 48 Cr LJ 533 : 51 Cal WN 474, 478-79 PC : 1947 Mad WN 217 PC) (approved in Gurbachan Singh v State of Punjab, AIR 1957 SC 623 : 1957 Cr LJ 1009 ); see also Zahiruddin v King-Emperor, AIR 1947 PC 75 : (1947) 48 Cr LJ 679 : 51 Cal WN 555 : 1947 (1) Mad LJ 389 : 74 IA 80]. The reasonable view would therefore seem to be that every case of unavailability of copy does not of itself vitiate the trial but it may have, according to circumstances of the case, serious consequences extending to invalidation of the trial if it has occasioned prejudice to the accused. Thus, destruction or suppression of statements [Baliram, AIR 1945 N 1; Re Sugali Latchigadu, AIR 1952 Mad 229 : 1952 Cr LJ 481 : 1952 (1) Mad LJ 42 : 65 Mad LW 416; Re Ramchandran, AIR 1957 Mad 505 : 1957 Cr LJ 863 : 1957 (2) Mad LJ 126 : 1957 Mad LJ (Cri) 366; Re K Papaiah, AIR 1956 AP 213 : 1956 Cr LJ 1279 ; Re K Appalaswamy, AIR 1957 AP 954 : 1957 Cr LJ 1227 : 1956 Andh WR 179; Re Gaddam Jayarami Reddi, AIR 1959 AP 325 : 1959 Cr LJ 808 : 1959 Andh LT 76 : 1959 Mad LJ (Cri) 192], or refusal to supply copies [Bansidhar, 53 A 459; Vishwananth, AIR 1936 N 24; Dinanath, AIR 1939 P 174; Re Gaddam Jayarami Reddi, AIR 1959 AP 325 : 1959 Cr LJ 808 : 1959 Andh LT 76 : 1959 Mad LJ (Cri) 192; Re GR Macfarland, AIR 1961 AP 3 : 1961 (1) Cr LJ 33 : 1960 (2) Andh WR 73 : 1960 Mad LJ (Cri) 477], or withholding them on the ground

Page 15 of 23 [s 162] Statements to police not to be signed: Use of statements in evidence.— that they are embodied in a special report [Re Boya Chinna Lingappa, AIR 1951 Mad 685 :1952 Cr LJ 509 : 1950 (2) Mad LJ 766 : 1951 Mad WN 67 (2)] has led to the quashing of convictions. If only notes of statements are taken and that too are destroyed after copying in the diary, the statements become unavailable for crossexamination causing serious prejudice [Re K Papaiah, AIR 1956 AP 213 : 1956 Cr LJ 1279 ]. The Supreme Court has observed that “the right” is a valuable right and the wholesale refusal to grant the same will be a serious irregularity which would vitiate the entire trial as held by the Privy Council in Pulukuri Kottayya, supra [Purshottam Jethanand v State of Kutch, AIR 1954 SC 700 : 1954 Cr LJ 1751 ].

It was held in some cases that the consequence of unavailability might be to make the evidence of the prosecution witness concerned inadmissible, e.g., where the copy was the only material for his crossexamination [Viswanath, AIR 1936 Na 249 ; Magan Lal v Emperor, AIR 1946 Nag 173 : (1946) 47 Cr LJ 851 : ILR (1946) Nag 126 : 1946 Nag LJ 139 ], or to ignore it altogether [Maroti Mahagoo v Emperor, AIR 1948 Nag 74 : 1948 Nag LJ 44 : (1948) 49 Cr LJ 58 : ILR (1948) Nag 110 ; Shyama Ranjaram Pardhan v Emperor, AIR 1949 Nag 260 : (1949) 50 Cr LJ 669 : 1949 Nag LJ 315 ]. Where the copy of the statement of the approver recorded during investigation was not supplied to the accused, the High Court will not consider his evidence in appeal [Sharaf Shah Khan v State of AP, AIR 1963 AP 314 : 1963 (2) Cr LJ 121 : ILR (1962) AP 96 ]. Unavailability raises an irresistible inference of prejudice and want of fair trial [Pulukuri Kottaya v King-Emperor, AIR 1947 PC 67 : 51 Cal WN 474 : 230 IC 135 : ILR (1948) Mad 1 supra; Re Boya Chinna Lingappa, AIR 1951 Mad 685 : 1952 Cr LJ 509 : 1950 (2) Mad LJ 766; Re Sugali Latchigadu, AIR 1952 Mad 229 : 1952 Cr LJ 481 : 1952 (1) Mad LJ 42 : 65 Mad LW 416]. The view taken in Calcutta is that unavailability due to loss or destruction or record in a boiled form does not make the evidence of the witness inadmissible but affects its weight. When destruction or suppression is deliberate, a presumption can justly be raised that the evidence went against the prosecution [Lakshmi, 52 Cal WN 401; Bejoy Chand Patra v State, AIR 1950 Cal 363 : 1950 Cr LJ 1307 : 54 Cal WN 447; Re Goddam Jayarami Reddi, AIR 1959 AP 325 : 1959 Cr LJ 808 : 1959 Andh LT 76 : 1959 Mad LJ (Cri) 192; see Sudhir Kumar Mandal v The King, AIR 1955 NUC 661 (Cal)]. The Supreme Court (agreeing with Bejoy, supra and disapproving Viswanath and Maganlal, supra] held that unavailability does not render the evidence of the witness inadmissible, but might greatly impair its value [Tilkeshwar Singh v State of Bihar, 1955 (2) SCR 1043 : 1956 Cr LJ 441 : AIR 1956 SC 238 ]. The question was considered again in another case in the old Code. The object of the provisions (in sections 162, 173(4) and 207A, see now sections 162, 173(5),(6),(7) and 207) regarding the supply of copies of statements of witnesses recorded during investigation is manifestly to give the accused the fullest information in their possession. But, failure to furnish such statements may not vitiate the conviction if the evidence warrants such a course. The provisions relating to the supply of copies is undoubtedly of great importance but the breach thereof must be considered in the light of the prejudice caused to the accused by reason of such breach [Noor Khan v State of Rajasthan, AIR 1964 SC 286 : 1964 (1) Cr LJ 167 (SC)]. (The law stated in Baliram and Maganlal, supra, does not correctly interpret sections 161, 162)]. In this connection it is pertinent to refer to the observations of the Supreme Court that if the record made by the police becomes suspect or unreliable on the ground that it was deliberately perfunctory or dishonest, it loses much of its value and in judging the case of each accused, the fact that the earlier statements of witnesses as recorded by the police is tainted record has to be kept in view [Baladin v State of UP, AIR 1956 SC 181 , 187 : 1956 Cr LJ 345 ].

Final report by the police held no case against the accused, but trial proceeded on basis of private complaint— Heldsection 162 still applied and the accused was entitled to get copies [Daitari Das v Kulamani Panda, AIR 1965 Ori 21 : 1965 (1) Cr LJ 191 : 30 Cut LT 500]. [s 162.24] “If duly proved”.— There is no presumption of genuineness of the statements in the writing [Rahijaddi, 35 Cal WN 317; Labh Singh, 6 L 24; Radhakishen, AIR 1938 L 714] and they cannot be admitted in evidence straightway; but they must be duly proved for the purpose of contradiction. It is usually done by eliciting admission from the witness during cross-examination, or through the investigating officer when he is in the witness box, or by calling him, or in any other way e.g., calling some one who was present when the record was made [Ajit, AIR 1945 C 159; Jusimuddin, 35 Cal WN 164; Madari, 54 C 307; Osman, AIR 1928 B 23; Vithu, AIR 1924 B 510; Najibuddin, AIR 1933 P 489; Nga U, AIR 1935 R 98; Shwe Pru, AIR 1941 R 209; Parmu, 1940 Nag 320 : AIR 1938 N 110]. The statements cannot be proved simply by the oral evidence of the police officer. His answer must always be checked up with his diary [Ram Kripal, AIR 1947 P 398 : 25 P 825; Jasimuddin, supra]. If the relevant portion of the previous statement of the witness as stated by the police officer is recorded by the Court, it is a matter of minor importance whether the corresponding portion of the writing in his diary is marked as an exhibit or not

Page 16 of 23 [s 162] Statements to police not to be signed: Use of statements in evidence.— [Ajit, AIR 1945 C 159]. “Duly proved” lay emphasis on proving the statement of the witness. They do not refer to the proof of the writing [Ajit, supra].

In order to avoid delay, cross-examination may be allowed as to contradiction subject to subsequent proof of the statement [Nga U, AIR 1935 R 98; Parmu, supra]. There is no duty first to prove the statement before putting it to the witness. All that is necessary is that his attention must be drawn to the statement. Proof, if necessary, can be furnished afterwards [Mazaffar, AIR 1939 L 268; Shivlal, AIR 1938 N 110]. In practice, the written record of the statement is put to the witness on the prosecution undertaking to call the investigating officer at a later stage to prove the statement, because it is inconvenient to prove each statement separately [Md Adam, 38 Cr LJ 327]. [s 162.25] “Court’s power to refer to the writing”.— There is nothing to prevent the Court from referring to the writing suo motu and to inform the accused of his right to copy if it finds any material for contradiction [Nga Lun, AIR 1935 R 370 : 36 Cr LJ 1487 FB; Sultan Mir, AIR 1937 Pesh 10 ], or to put the necessary question itself to the witness about the discrepancy or to intimate the defence so that it may be used for contradiction [Lal Mia, 47 Cal WN 336]. Oral request to refer is sufficient [Ghassoo, 31 Cr LJ 555]. See also post: “Use of statement by Court”. [s 162.26] “Save as hereinafter provided”.— These words in section 162 (1) refer not only to the proviso but to any other provision in the Act, eg sections 239 and 240 for purpose of discharging or framing charge. The word “hereinafter” is not restricted in its operation to section 162 alone but applies to the body of the Code; section 162(I) is subject to the provisions of section 293. [Ukha Kolhe v State of Maharashtra, AIR 1963 SC 1531 : 1963 (2) Cr LJ 418 ]. [s 162.27] Admissibility.— Statements made to the police (by a witness) are not admissible (except as provided in section 162, Code of Criminal Procedure, 1973. [Satish Kumar v State, 1996 Cr LJ 265 : 1996 (1) Chand LR (Civ & Cri) 282 (Del); Rishi Nandan Pandit v State of Bihar, AIR 1999 SC 3850 : (1999) 8 SCC 644 : 1999 (4) Crimes 276 ].

In this case, the Additional Public Prosecutor only briefed the child witness as to how to give answers in the Court Hall. From this what all could be understood was that the witness being a child witness was apprised by the Additional Public Prosecutor as to the atmosphere in the Court and the way in which the child witness had to behave and respond to the question of the Court. The witness did not state anywhere in his deposition that the Additional Public Prosecutor had tutored him with reference to which facts, he had to give evidence in the Court. Therefore, despite the admission of child witness that the Additional Public Prosecutor briefed him as to how to give answers, no stigma would be attached to the evidence of witness and if his evidence was otherwise reliable, its credibility would not be questioned on the ground that it was hit by section 162, Code of Criminal Procedure, 1973 [Goulla Appiah v State of AP, 2009 Cr LJ 4377 (4383) (AP) : 2010 (1) Andh LT (Cr) 15 ]. [s 162.28] Contradiction of witnesses the legal position.— Under the general law of evidence it is permissible to contradict a witness (who is giving evidence in Court) by his prior inconsistent statement (section 145 of the Evidence Act). Section 162, Code of Criminal Procedure, 1973 allows that provision of the Evidence Act to operate, as against prosecution witnesses, who are allowed to be confronted with there previous statements recorded during investigation by the police. [Muzaffarkhan v Emperor, AIR 1939 Lah 269 ; Raghuraj Singh v Emperor, 1924 All 956 ; Samuel John v Emperor, AIR 1935 All 935 ].

Some of the prosecution witnesses stated before the police that there had been exhortation witnesses did not make any allegation as regards the alleged exhortation on the part of all the accused such omission on their part in the facts and circumstances of the case, being very material would amount to contradiction [Gopal v Subash, AIR 2004 SC 4900 : 2004 Cr LJ 3349 : 2004 (1) Crimes 378 (SC)]. [s 162.29] Use of statement under the proviso and its limitations [Contradiction of prosecution witness].— The section expressly prohibits the use of the statement “for any purpose” except (i) by the defence for contradicting prosecution witnesses [Sat Paul v Delhi Administration, AIR 1976 SC 294 : 1976 Cr LJ 295 : (1976) 1 SCC 727 (SC); Hazari Lal v Delhi Administration, AIR 1980 SC 873 : 1980 Cr LJ 564 : (1980) 2 SCC

Page 17 of 23 [s 162] Statements to police not to be signed: Use of statements in evidence.— 390 (SC); Harendra, AIR 1925 C 161; Keramat, AIR 1926 C 320; Gahar, 30 Cal WN 503; Badri, 92 IC 874; Nga Tha, AIR 1926 R 116; Rakha, AIR 1925 L 399; Bahadur, AIR 1926 L 367; Mangalram, 65 Cal WN 645] or (ii) by the defence for the same purpose, provided it is permitted by the Court and (iii) when the statement of a witness is thus used, he may be re-examined if any explanation is necessary.

Case diary statements can be used for purpose of contradiction in a trial arising from a private complaint as a result of investigation ending in a refer report [Narayanan v Krishnan, 1981 Cr LJ 563 (Ker)]. Case diary contradictions cannot be brushed aside on the ground of being unsigned [Narayana, supra].

Statements of witnesses before the police being the earliest statements are valuable for testing veracity. But if the police record becomes suspect or unreliable because it was deliberately perfunctory or dishonest, it loses much of its value [Baladin v State of UP, AIR 1956 SC 181 : 1956 Cr LJ 345 ].

The proviso applies only on fulfilment of three conditions : (1) statement must have been reduced to writing, (2) the witness must have been called for the prosecution, and (3) the written statement must be duly proved [see Md Adam, AIR 1936 B 60 : 38 Cr LJ 327; Wesley, AIR 1938 B 571]. The proviso cannot apply to an oral statement (not recorded) by a witness to a police officer. It cannot also be invoked to bring in the statement of a witness in his cross-examination where such statement was not used to contradict the evidence of the witness himself but was used to contradict the evidence of some other witness [Nanavati KM v State of Maharashtra, AIR 1962 SC 605 : 1962 (1) Cr LJ 521 : 1962 Supp (1) SCR 567].

If the same person is examined as a defence witness, the statement cannot be used [Sheo Shankar v State, AIR 1953 All 652 : 1953 Cr LJ 1400 : 1953 All LJ 720 : 1953 All WR 264]. Prosecution is not allowed to crossexamine defence witnesses as to their statements before the police [Bhikraj, AIR 1964 P 555]. When the statement is used by the defence, the prosecution can use it in re-examination in clearing up ambiguities in the answers in cross-examination [Badrauddin, 50 Cal WN 531; see Yusuf Mia, AIR 1938 P 579. Statement admitted under section 32 (I) Evidence Act may be contradicted [Hariram, AIR 1926 L 122].

It cannot be used as substantive evidence by any side [Hazarilal v Delhi Administration, AIR 1980 SC 873 : 1980 Cr LJ 564 : (1980) 2 SCC 390 ; Bishun, 50 A 242; Jasimuddin, 35 Cal WN 164, 167; Cherath, 26 M 191; Packirisami, AIR 1942 M 288, 289; Das Ram, AIR 1941 L 471; Ramsaran, AIR 1925 L 483; Ausan, AIR 1932 O 247; Dhaneshwar Thakur v State, AIR 1958 Pat 412 : 1958 Cr LJ 929 : 1958 BLJR 78 : 1957 Pat LR 478], or for corroboration of prosecution or defence witness or contradiction of defence witness [Rameshwar Singh v State of J&K, AIR 1972 SC 102 : 1972 Cr LJ 15 : (1971) 2 SCC 715 ; Laxman Kalu Nikalje v State of Maharashtra, AIR 1968 SC 1390 : 1968 Cr LJ 1647 (SC); Re Saibanna Tippanna, AIR 1966 Mys 248 : 1966 Cr LJ 1155 ; Madari, 54 C 307; Ajit, AIR 1945 C 159, 176; Vithu, AIR 1924 B 510; Jhari, 8 P 279; Ramyad, AIR 1926 P 211; Jagwa, 5 P 63; Najibuddin, AIR 1933 P 589; Girdhari, AIR 1940 P 605; Narayana, 56 M 231; Packirisami, AIR 1942 M 288; Ganga, 4 L 726; Rakha, AIR 1925 L 399; Hayat, AIR 1928 L 380; Ibrahim, AIR 1928 L 17; Diwan, 33 Cr LJ 637; Chetu, 48 Cr LJ 200; Dhaneshwar, supra; Sagar Chandra Saha v State, AIR 1962 Cal 85 : 1962 (1) Cr LJ 137 : 65 Cal WN 808], or for corroboration of a defence witness [Najibuddin, AIR 1933 P 589; Iqbal Singh v State, 1981 Cr LJ 512 : (1981) 19 DLT 244 : 1981 Chand Cr C 39 (Del); Shakila Khader v Nausheer Cama, AIR 1975 SC 1324 : 1975 Cr LJ 1105 : (1975) 4 SCC 122 , relied on].

In the matter of corroboration therefore section 162 has overridden section 157 Evidence Act [Najuibuddin, supra; Jagwa, AIR 1926 P 232; Rakha, AIR 1925 L 399]. Under section 162(1) proviso, contradiction by the prosecution is allowed with the permission of the Court. This is in conformity with section 154, Evidence Act which allows a party to cross-examine his own witness with the permission of the Court. Permission will not however be granted as a matter of course, and a case must be made out under section 154 Evidence Act to obtain it.

Prosecution or defence cannot contradict witnesses called by the Court [Re Vajrala Koti Reddi, AIR 1960 AP 76 : 1960 Cr LJ 208 : 1959 Andh LT 857 : 1959 (1) Andh WR 419 : 1959 Mad LJ (Cri) 380; Sheo Shanker v State, AIR 1953 All 652 : 1953 Cr LJ 1400 : 1953 All LJ 720 : 1953 All WR 264; Bhupal, 44 Cal WN relied on]. The

Page 18 of 23 [s 162] Statements to police not to be signed: Use of statements in evidence.— defence cannot use it for contradiction when the witness is examined as a Court witness [Bhupal, 44 Cal WN 451; Gurudella, AIR 1926 L 713]. The statement cannot be used for remedying a defect or lacuna in the witnesses statement under section 164 [Sahdeo, 48 Cal WN 102 : AIR 1944 FC 38 : 1944 FCR 223 ]. Diary kept under section 172 cannot be used by the defence under section 162 [Mobarak, AIR 1939 C 252] but statements of witness cannot be protected by adopting the device of entering them in the diary (ante). A signed written statement made over by witness to the investigating officer cannot be used for refreshing memory when giving evidence [Zahiruddin v King-Emperor, AIR 1947 PC 75 : (1947) 48 Cr LJ 679 : 51 Cal WN 555 : 60 Mad LW 524 : 1947 All LJ 379 : 74 IA 80]. Section 145 Evidence Act is controlled by section 162 and so statements of Court witnesses recorded by the police cannot be used for contradiction even though they were cited as prosecution witnesses [Re Vijrala Koti Reddi, AIR 1960 AP 76 : 1960 Cr LJ 208 : 1959 Mad LJ (Cri) 380 : 1959 Andh LT 857 : 1959 (1) Andh WR 419]. The statement cannot be used for corroboration of a prosecution or a defence witness or even a Court witness. Nor can it be used for contradicting a defence or a Court witness [Tahsildar Singh v State of UP, AIR 1959 SC 1012 : 1959 Cr LJ 1231 ; Sat Paul v Delhi Administration, AIR 1976 SC 294 : 1976 Cr LJ 295 : (1976) 1 SCC 727 (SC); Shakila Khader Nausheer Cama, AIR 1975 SC 1324 : 1975 Cr LJ 1105 : (1975) 4 SCC 122 ]. It cannot be made basis for putting question to the accused in his examination under section 313 [Sewaki v State of HP, 1981 Cr LJ 919 : 1981 Sim LC 158 (HP)]. The evidence of a prosecution witness if not allowed to be tested by cross-examination by the defence on a material point with reference to his earlier statement cannot be accepted as corroborating evidence of other witnesses [Badri v State of Rajasthan, AIR 1976 SC 560 : (1976 1 SCC 442 : 1976 Cr LJ 496 ].

Recall of a police officer by the Court after examination of a defence witness and to allow him to say that no such statement was made to him is impermissible [Ebrahim, 40 Cr LJ 665]. After a witness makes a statement, simply to ask him whether he made that statement to the police or ask the police officer whether the witness in fact made the statement to him, is not within the prohibition [Guhi Mian, AIR 1925 P 450; Delbar, 40 Cal WN 733—Contra: To answer “yes” or “no” is still using the statement [Issuf Md, 32 Cr LJ 1077].

When the police officer is being cross-examined the Court should have his diary before it and see whether an answer that a witness did not state such and such a fact to him during investigation gives a correct picture. If not, it should watch whether the matter is cleared up by the prosecution in re-examination. If the prosecution fails in his duty, it is the Court’s duty to bring about facts to clear up the wrong impression created by the negative answer [Yusuf-Mia, AIR 1938 P 579]. Statement favourable to the defence if not used at the original trial, cannot be used for invoking revisional power [Hari Mahato, AIR 1935 P 46].

When a police officer does not remember the statements made at the investigation and refuses to refresh memory from diary, the Court should compel him to look into it for answering questions [Mohiuddin, AIR 1924 P 829; see however Mohinder, AIR 1932 L 103; see post notes under section 172]. Whether section 162 prohibits the use of statement by witness to refresh his memory by reading it before giving evidence [Kanbi Vaghji Savji v State of Gujarat, AIR 1968 Guj 11 : 1968 Cr LJ 54 ].

Though the statement cannot be used for any purpose other than that laid down in section 162 the fact of that statement having been made can certainly be relied upon to show how untruthful the witness is [Rameshwar Singh v State of J&K, AIR 1972 SC 102 : 1972 Cr LJ 15 : (1971) 2 SCC 715 ].

Statements of witnesses recorded by a police officer under section 162 can be used in a civil proceeding under section 145, Indian Evidence Act to contradict them [Malakala Surya Rao v Gundapuneedi Janakamma, AIR 1964 AP 198 : 1964 (1) Cr LJ 504 : 1963 (2) Andh WR 485]. [s 162.30] Omissions in the statement.— In view of the doubt on the question whether any omission in a statement recorded by the police during investigation would amount to a contradiction, with reference to what the witness states during the trial, an Explanation has been added to clarify the matter. There will remain scope for doubt or controversy as to what omission is significant and otherwise relevant in order to amount to contradiction in the particular context. As decisions on the matter may be still necessary, they are reproduced herein.

Page 19 of 23 [s 162] Statements to police not to be signed: Use of statements in evidence.— The decisions do not appear to be uniform as to whether an omission is a contradiction. Statement cannot be used to show that the witness had said in Court something, which is not in the previous statement. Omission is not contradiction [Ponnusami, 56 M 475; Aseruddin, AIR 1927 C 257; Sakhawat, AIR 1937 N 501]. Statement under section 161 being brief, failure to mention a particular fact due to not being asked about it, is not contradiction [State of UP v Joti Prasad, AIR 1962 All 582 : 1962 (2) Cr LJ 722 : 1962 All LJ 639 : 1962 All WR 507]. If the intention is to show that a statement in Court was not made to the police, it is useless to refer to the written record for it is only a resume and not a full record of what was said. The only way to prove the fact is to ask the police officer whether the statement was made to him. [Bangaruraju, AIR 1942 M 58; Packirisami, AIR 1942 M 288; see Behari, A 1931 P 152]. Legal and correct way of proving a contradiction or omission discussed and pointed out [Sayyed Husain v The State, AIR 1958 Bom 225 : 1958 Cr LJ 749 : 59 Bom LR 1161 : ILR (1958) Bom 100 ; The State v Md Misir Ali, AIR 1963 Ass 151 : 1963 (2) Cr LJ 255 ]. Practice in Bihar as regards omissions [Behari, supra]. Omissions are practically of no value as contradiction of statements briefly recorded [Najibuddin, AIR 1933 P 589; Guruvara, AIR 1944 M 385; Deolal, 34 Cr LJ 948; Sakhawat, AIR 1937 N 50]. All omissions are not contradictions. It depends on the particular facts of each case. If the matter is of such importance that the witness would have been expected to mention it [Yusuf Mia, AIR 1938 P 579; Mohinder 33 Cr LJ 97], or if what is actually stated is irreconcilable with what is omitted [Rudder, AIR 1957 A 239; Tahsildar Singh v State, AIR 1958 All 255 : 1958 Cr LJ 424 (on appeal Tahsildar Singh v State of UP, AIR 1959 1012 : 1959 Cr LJ 1231 : 1959 Supp (2) SCR 875 )], it may amount to contradiction. In some cases an omission in the statement may amount to contradiction of the deposition in Court; they are the cases where what is actually stated is irreconcilable with what is omitted and impliedly negatives its existence. The test to find out whether an omission is a contradiction or not, is to see whether one can point to any sentence or assertion which is irreconcilable with the deposition in Court [Ram Bali v State, AIR 1952 All 289 : 1952 Cr LJ 600 ; Muninajappa v State of Mysore, AIR 1958 Mys 138 : 1958 Cr LJ 1205 : 1958 Mad LJ (Cri) 500; Badri, AIR 1926 P 20; Guruva, AIR 1944 M 385 : 46 Cr LJ 294; State of MP v Kalu Kachru Keer, AIR 1959 MP 391 : 1959 Cr LJ 1340 : 1959 MPLJ 891 ]. Where the omissions are vital, they merit consideration, but mere small omissions do not justify a finding that the witnesses concerned are liars [Matadin v State of UP, AIR 1979 SC 1234 : 1979 Cr LJ 1027 (SC)]. Omission on a vital point ought to be provable in favour of accused [Sakhawat, A 1937 N 50; Guruva, supra; Ajit, A 1945 C 159]. Omissions in statements of prosecution witnesses to the police cannot be regarded as contradictions. But serious and glaring omissions can be relied upon as relevant circumstances [The State v Md Misir, AIR 1963 Ass 151 : 1963 (2) Cr LJ 255 ]. It is for the Court to determine whether an alleged omission amounts to contradiction [Ajit, supra; see Lal Bahadur, 39 Cr LJ 527; Hazara, AIR 1928 L 257]. Where a prosecution witness did not mention an accused in his statement under section 164 but named him in his evidence in Court and the police officer in his cross-examination said that he had named the accused before him—Held that having regard to section 162 the omission in the statement under section 164 was not counteracted [Sardeo, 48 Cal WN 102 FR : AIR 1944 FC 38 : 1944 FCR 223 ].

It will appear from the cases cited above that the two conflicting views are: (1) omissions cannot be used for contradiction unless they can be deemed by necessary implication to be part of the statement recorded; and (2) omissions in order to be used for contradiction must be of such importance that the witness would have been expected to mention them. After fully considering the question as to “omissions” in statement and discussing many of the cases cited above, the Supreme Court decided that the first view not only carries out the intention of the Legislature but is also in accord with the plain meaning of the words in the section. The second view not only stretches the meaning of “statement” to a breaking point but also introduces an uncertain element, viz., ascertainment of what a witness would have stated in the circumstances of a particular case and what the police officer should have recorded. It was accordingly held that though a particular statement is not expressly recorded, it can be used for contradiction if it can be deemed by necessary implication to be a part of that expressly recorded, not because it is an omission strictly so called, but because it is deemed to form part of the recorded statements. Such a fiction is permissible only in the following three cases : (i) when a recital is necessarily implied from the recitals in the statement; (ii) a negative aspect of a positive recital in a statement and; (iii) when the statement before the police and before the Court cannot stand together [Tahsildar Singh v State of UP, AIR 1959 SC 1012 , 1026 : 1959 Cr LJ 1231 . As to the illustration of the three cases by examples, see the judgment].

An omission in order to be significant must depend upon whether the specific question, the answer to which is omitted, was asked of the witness. In this case, the investigating officer, was not asked whether he had put question to a eye-witness, wife of one of the deceased persons asking for details of the injuries inflicted or of the persons who had caused the injuries. Her testimony in this regard was believed by both courts. Both the

Page 20 of 23 [s 162] Statements to police not to be signed: Use of statements in evidence.— trial Courts as well as the High Court were of the view that the omissions were not contradictions in the particular context although the witness had not given to the police particulars of who had caused which injury she had not deviated from the actual occurrence and the manner in which it had happened. The Supreme Court in circumstances declined to interfere with the concurrent finding of fact [Jaswant Singh v State of Haryana, 2000 Cr LJ 2212 : AIR 2000 SC 1833 : (2000) 4 SCC 484 ].

In S Kaur v Baldev Singh, AIR 1999 SC 1581 : (1997) 11 SCC 292 : 1998 SCC (Cri) 161 , the Supreme Courts observations are reproduced below:—

According to explanation to section 162, Code of Criminal Procedure, 1973 an omission to state a fact or circumstance in the statement referred to in sub-section (1) may amount to contradiction of the same appears to be significant and otherwise relevant having regard to the context in which such omission occurs and whether any omission amounts to a contradiction in the particular context shall be a question of fact. . . The statement of PW-4 which was recorded by the police under section 161, Code of Criminal Procedure, 1973 related only to the incident of actual attack by the three assailants of Kirpal Singh. The statement does not mentioned as to who were the persons who witnessed this incident apart from PW-4. Had such statement mentioned that some persons had witnesses the incident, but the name of PW-3 was not recorded, then possibly it could be regarded as a contradiction because the context then would have been with regard to the people who witnessed the incident... . An alleged contradiction in section 161 statement of PW-4 where the name of PW-3 is not mentioned as being a person who had witnessed the incident cannot be regarded as evidence or a reason for the Court to conclude that she was not present at time when the incident occurred.

[s 162.31] Effect of contradiction.— Statement of witness to the police is not substantive evidence. The effect of contradiction is not whether that statement or the statement in Court is true but whether it does not make his evidence unreliable [Tajali, A 1928 P 31; Fazlur Rahman v Emperor, AIR 1947 Cal 192 : 51 Cal WN 32 : 226 IC 33 : (1946) 47 Cr LJ 814 ; see Jung Rai, 19 Cal WN 217; Masha, 69 Cal WN 764]. Contradiction may be treated not only as entirely discrediting the witness but also as discrediting only the portion of evidence contradicted [John, AIR 1935 A 935].

Statements of a witness would ordinarily give the accused the benefit of doubt [Sukhram v State of MP, AIR 1989 SC 772 : 1989 Cr LJ 838 : 1989 (2) Crimes 320 : (1989) Supp 1 SCC 214].

Sessions Judge failed to bring to the notice of witnesses the relevant portions of case diary to contradict their evidence in the case—Only beginning and end of portions of statements with some dotted lines in between them alone were put in inverted commas—Practice was deprecated by the High Court [Puthenthara Mohanan v State of Kerala, (1990) Cr LJ 1059 (Kerala) (per MM Pareed Pillay and PK Shamsuddin JJ) : (1989) 1 Ker LN 462]. [s 162.32] How contradiction is to be made.— It can only be made after strict compliance with section 145, Evidence Act. The witness should first be asked whether he made such and such a statement before the police. If he admits, the matter ends. If he denies or pleads failure of memory or gives evasive answers, the relevant portion of his previous statement contrary to his statement in Court must be read out in order to give him an opportunity to reconcile or explain the same. Thereafter, the record of the previous statement becomes admissible and can be proved in any proper way [see Gopichand, A 1930 L 491 : 11 L 460; Muzaffar, AIR 1930 L 509; Narayana, 1932 MWN 801 ; Najibuddin, AIR 1933 P 589; Mohinder, AIR 1932 L 103; Surajbali, AIR 1934 A 340; John, AIR 1935 A 935; Bal Gangadhar, 19 Cal WN 729 : 39 B 441 : 42 IA 135 : A 1915 PC 7 ; Salik, AIR 1937 O 201; Jiwan, AIR 1939 L 521; Tahsildar Singh v State of UP, AIR 1959 SC 1012 : 1959 Cr LJ 1231 ; see Sarkar’s Law of Evidence, 13th Edn, p 1366 et seq]. The procedure is that if it is intended to contradict a witness by his previous statement in writing, his attention must under section 145, Indian evidence Act, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him. The procedure for contradiction was discussed at length by the Supreme Court and the majority held that the proviso to section 162 only enables the

Page 21 of 23 [s 162] Statements to police not to be signed: Use of statements in evidence.— accused to use the statement of a witness recorded by the police to contradict him in the manner provided in the second part of section 145, Evidence Act. That statement cannot be used for the purpose of crossexamining a witness within the meaning of the first part of section 145, ibid. The word “cross-examination” in the last line of the first proviso to section 162 cannot be understood to mean the entire gamut of crossexamination—Mode of contradiction illustrated by an example [Tahsildar Singh v State of UP, AIR 1959 SC 1012 : 1959 Cr LJ 1231 (SC)—Imam & Hidayatulla JJ, (dissenting) : The whole of the machinery of crossexamination in section 145, Evidence Act applies to establish a contradiction between one statement and another and not merely the second part of section 145]. The witnesses in their statements to the police attributed a clear intention to commit murder, but before the Court they said that the accused was insane. It was therefore reasonably implied in their previous statements to the police that the accused was not insane. So the previous statements to the police could be used to contradict the version in the Court [Dahyabhai Chhagan Bhai Thakker v State of Gujarat, AIR 1964 SC 1563 : 1964 (2) Cr LJ 472 (Tahshildar, supra, relied on)]. Witnesses who were treated as hostile by the prosecution were confronted with their earlier statements to the police and their evidence was rejected as it was contradicted by their earlier statements. Such use of the statements is permissible under section 155 and section 162(1) proviso read with section 145, Evidence Act [Prakashchand v State (Delhi Administration), AIR 1979 SC 400 : 1979 Cr LJ 329 : (1979) 3 SCC 90 ]. In a case whenever a witness was asked about an omission with reference to his statement recorded under section 161 the public prosecutor made a statement whether the statement referred to in evidence was or was not to be found in the statement under section 161 and no attempt was made to prove the omission. It was held that such procedure lacks support of law and is likely to be unfair to the witness in that when the IO is questioned with regard to the contradiction or omission, he will get a further opportunity to explain the contradiction or omission [Muthu Naicker v State of TN, AIR 1978 SC 1647 : (1978) 4 SCC 385 : 1978 Cr LJ 1713 (SC)].

If contradiction is intended, not only should an opportunity for explanation be given by putting in the actual words of the previous statement but the statement so put should also be brought on the record—Procedure for contradiction pointed out [Sunil Chandra Roy v State, AIR 1954 Cal 305 : 1954 Cr LJ 805 : 57 Cal WN 962]. If the cross-examiner does not give an opportunity of reconciling the statements, the prosecution may in reexamination give it or the Court itself should do so [Iqbal, AIR 1943 A 49; see Yusuf Mia, AIR 1938 P 579]. The witness should be cross-examined about each separate fact point-by-point and passage by passage. A mere reading out of the whole statement at a time may confuse the witness and is not fair [Bhagwan Singh v State of Punjab, AIR 1952 SC 214 , 218 : 1952 SCR 812 : 1952 Cr LJ 1131 ; see Raghu Rai, AIR 1934 A 950].

Only those passages in the previous statement, which clearly contradict and have been actually used in contradicting the testimony in the court are parts of the record and evidence. The other parts of the statement cannot be relied upon by any party [Sabhai, AIR 1930 L 449; Ajit, AIR 1945 C 159; Ram Bali v State, AIR 1952 All 289 : 1952 Cr LJ 600 ]. The passages should be marked and put to the witness [Dharam, AIR 1928 L 507; Rambali, supra].

If contradiction is required, it is the duty of the accused to draw the attention of the witness to the statement in question and get it marked [Re Kudumula Mahanandi Reddi, AIR 1960 AP 141 : 1960 Cr LJ 303 : 1960 (1) Andh WR 313 : 1960 Mad LJ (Cri) 265]. [s 162.33] Use of statement by Court.— The prohibition in section 162 that the statement of a witness recorded by the police during investigation cannot be used for any purpose other than those mentioned in that section applies only to the parties to a proceeding before a Court and does not at all impair the special powers of the Court itself under section 169, Evidence Act [Raghunanadan v State of UP, AIR 1974 SC 463 : 1974 Cr LJ 453 : (1974) 4 SCC 186 ]. The Court cannot suo motuunder section 165, Evidence Act make use of statements to the police not proved and questions with reference to them which are inconsistent with the witness’s present statement [Rahizaddi, 35 Cal WN 317; Keramat, 42 C LJ 528; Ahmed, AIR 1928 L 114; Ram Rang, AIR 1928 L 820; Sakal, AIR 1931 P 96; Nga U, AIR 1935 R 98; see Kasamalli, AIR 1942 B 71], or use the statement for corroboration of prosecution witnesses [Sanmon, AIR 1936 P 581], or to show that their evidence in Court did not introduce new matters [Giridhari, AIR 1940 P 605]. A later case has however held that the Court can look into police diary and sou motu question the witness to bring out discrepancies or he may inform the defence to enable them to take steps for contradiction [Lal Mia, 47 Cal WN 336 : AIR 1943 C 521; see also Nga Lun, 39 Cr LJ 148]. When a statement is inadmissible under section 162, the Court cannot circumvent it by a process of deduction and arrive at a conclusion as to what the statement did not contain [Nandalal, 49 Cal WN 484; see also ante: “Court’s Power to refer to writing”].

Page 22 of 23 [s 162] Statements to police not to be signed: Use of statements in evidence.— [s 162.34] Effect of contravention of Section 162.— Every breach of the provisions of section 162 does not vitiate the trial. It depends on whether the admission of inadmissible evidence has caused prejudice and if not whether there is sufficient other evidence to sustain the order under section 167, Evidence Act [Nitai, AIR 1939 1 Cal 337 ; Surendra Dinda v The Emperor, AIR 1949 Cal 514 : (1947) 48 Cr LJ 804 ; Sajjad, AIR 1927 C 372; Harendra, AIR 1925 C 161; Kassamalli, AIR 1942 B 71; Nur Md, AIR 1930 B 595; Mohinder, AIR 1932 L 103; Magan Lal v Emperor, AIR 1946 Nag 173 : (1946) 47 Cr LJ 851 : 1946 Nag LJ 139 ; Hari Vishinji, AIR 1955 SC 145 ]. If no prejudice is caused, the breach does not vitiate the trial; [see Pulukuri Kotayya v King-Emperor, AIR 1947 PC 67 : 1947 : 51 Cal WN 474 : 1947 Mad WN 217 : 49 Bom LR 508 cited ante]. When prejudice has been caused conviction will be set aside [Kalipada, 45 Cal WN 1045; Ebrahim, 43 Cal WN 784; Nandlal, 49 Cal WN 484]. It is for the accused to satisfy that there has been failure of justice [Nga U, AIR 1935 R 98].

If the contravention of section 162 consists in the signing of a statement to the police, the evidence of the witness who signed does not become inadmissible, though its value may be impaired. But if the witness is allowed to make use of the statement for refreshing his memory while giving evidence, his evidence becomes inadmissible [Zahiruddin v King-Emperor, AIR 1947 PC 75 : 51 Cal WN 555 : 74 IA 80 : 49 Bom LR 521 : 60 Mad LW 524]. [s 162.35] Defective investigation—Effect.— Defective investigation in itself is no ground for recording acquittal. [Budh Singh v State of UP, (2007) 10 SCC 496 (504) : 2008 (1) SCC (Cri) 64 ]. [s 162.36] Sub-section (2).— The sub-section makes it clear that the provisions of section 27 and section 32(1) Evidence Act remain unaffected (see Sarkar’s Evidence Act, 13th Ed, p 324). Section 32(1) relates to the statements by a person as to the cause of his death or as to any of the circumstances, which resulted in his death, which are evidence. (See Sarkar’s Law of Evidence, 13th Edn, p 374 et seq).

Inasmuch as section 27, Indian Evidence Act discriminates between a “person in custody” and a “person out of custody” the Allahabad FB held that section 27 and along with it section 162(2) in so far as it relates to section 27 Evidence Act is void under Article 14 of the Constitution. [Deoman Upadhyaya v State, AIR 1960 All 1 : 1960 Cr LJ 1 : 1960 All LJ 651 : 1959 All WR 447]; but this decision was upset by the Supreme Court [State of UP v Deoman Upadhyaya, AIR 1960 SC 1125 : 1960 Cr LJ 1504 : 1961 (1) SCR 14 ].

Dying declaration falls within section 32(1), Evidence Act and is both relevant and outside prohibition in section 162(1) [Tapinder Singh v State of Punjab, AIR 1970 SC 1566 : 1970 Cr LJ 1415 : (1970) 2 SCC 113 (SC)]. Statement of the deceased to the police as to his death is admissible even though he dies much later [Rajindra Kumar v State, AIR 1960 Punj 310 : 1960 Cr LJ 851 ].

If the Magistrate is satisfied with the fact that the accused could be produced before the Court due to being out of control, in such circumstance same Court can pass the order for extension of remand [Rahul Gupta v State of MP, 1995 Cr LJ 3340 (MP)].

Explanation.—

When witness refers to extra-judicial confession made by the accused and there is omission to refer to it during investigation, it would be taken as contradiction within the purview of explanation [Sadasiva Jena v State of Orissa, 1983 Cr LJ 521 (Ori)].

The investigating officer examined the injured and recorded his statement under section 161, Code of Criminal Procedure, 1973 three days after the incident took place. Neither the doctor nor was the nurse present when such statement was obtained by the investigating officer. The victim died on 4 August 1981. The statement was

Page 23 of 23 [s 162] Statements to police not to be signed: Use of statements in evidence.— not corroborated by any other person ofthe hospital. No explanation was given as to why the doctor or the nurse was not brought at the time when the statement was obtained. It was held that it was difficult to rely on the statement of the investigating officer. Apart from the fact that the formalities as required under the law were not complied with in recording the dying declaration, it was not known whether the patient was in a position to make such statement being in a comatic condition as stated by the Medical Officer [Jamiruddin Molla v State, 1991 Cr LJ 356 : 1990 (2) Cal HN 62 (Cal—DB)]. End of Document

[s 163] No Inducement to be offered.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER XII INFORMATION TO THE POLICE AND THEIR POWERS TO INVESTIGATE

The Code of Criminal Procedure, 1973 CHAPTER XII INFORMATION TO THE POLICE AND THEIR POWERS TO INVESTIGATE [s 163] No Inducement to be offered.— (1) No police officer or other person in authority shall offer or make, or cause to be offered or made, any such inducement, threat or promise as is mentioned in section 24 of the Indian Evidence Act, 1872 (1 of 1872). (2) But no police officer or other person shall prevent, by any caution or otherwise, any person from making in the course of any investigation under this Chapter any statement which he may be disposed to make of his own free will: Provided that nothing in this sub-section shall affect the provisions of sub-section (4) of section 164. [s 163.1] Changes.— Section 163 corresponds to old section 163 with addition of a proviso.

The proviso has been added to make it clear that section 164(4) overrides the provisions of section 163(2) as there is inconsistency in that while section 162(2) encourages attempts at confessions, section 164(4) discourages them. [s 163.2] Scope and application of section 163.— Where a statement is not made voluntarily but is the result of inducement or threat, there is a danger of it being false or at least biased and it would not be safe to receive a statement made under any influence of fear. Such statement may hamper the due course of administration of justice. They may divert investigation from proper channels. Equally such injunctions are necessary for keeping under check the wide powers of investigation and search which are likely to jeopardise the cherished freedom of personal liberty and reputation [P Sirajudddin v Government of Madras, AIR 1968 Mad 117 : 1968 Cr LJ 493 : 1966 Mad LW (Cri) 223 : 1968 Mad LJ (Cri) 313]. A confession caused by any inducement, threat or promise having reference to the charge, proceeding from a person in authority is inadmissible under section 24, Evidence Act as it affects its voluntary character. This section by way of caution enacts that no police officer or other person in authority (which includes Magistrates) shall do the acts coming within section 24 (ibid.) which render a confession an admission by affecting its voluntary character. The assurance of non-prosecution by Government to a witness before he makes a statement of ratification of what has been done by the inquiring officer is not contrary to section 163 or section 316 [Anant, AIR 1925 N 313]. Section 163 applies to investigations only and section 316 refers only to persons under trial [Lakshmandas Chaganlal Bhatia v State, AIR 1968 Bom 400 : 1968 Cr LJ 1584 : 69 Bom LR 808]. As to who are “persons in authority” and what amounts to inducement, threat etc., see Sarkar’s

Page 2 of 4 [s 163] No Inducement to be offered.— Evidence Act, 13th Edn, pp 259, 263 et seq. Police officer has been used not in a technical but in its widest and most popular signification (see ibid, p 290).

Section 163 emphasizes the fact that section 161 does not authorise the police officers to beat or confine a person with a view to induce him to make a statement [State of AP v N Venugopal, AIR 1964 SC 33 : 1964 (1) Cr LJ 16 (SC); State of Maharashtra v Atma Ram, AIR 1966 SC 1786 : 1966 Cr LJ 1498 ]. [s 163.3] Sub-section (2).— It appears to be a corollary to sub-section (1). Nor shall the police or any person in authority prevent or dissuade a person by caution or otherwise from making any statement during investigation which he is inclined to do of his free will, implying that a caution is not necessary to a person making a confession. A proviso has been added to make it clear that section164 overrides the implications of sub-section (2).

If during an inquest under section 176 a person of his free will makes a confessional statement the Magistrate would be acting in violation of section 162(2) if he does not record it although he was not brought during police investigation for record under section 164 [Re Ramaswami Reddiar, AIR 1953 Mad 138 : 1953 Cr LJ 315 : 1952 (2) Mad LJ 814 : 1952 Mad WN 897]. Though sub-section (2) allows a person to make any confessional statement of his own free will even then the law enjoins bysection 164 that such a statement or confession can only be recorded by a Magistrate mentioned in section 164 and in accordance with the provisions thereof [Sirajuddin P v State of Madras, AIR 1971 SC 520 , 527 : 1971 Cr LJ 523 : (1970) 1 SCC 595 (SC)]. [s 163.4] Criticism of police.— For a criticism of police practices.[See Bhagwan Singh v State of Punjab, AIR 1992 SC 1689 , (1992) 3 SCC 249 : 1992 Cr LJ 3144 : 1992 (2) Crimes 329 ; Dagdu v State of Maharashtra, AIR 1977 SC 1529 : (1977) Cr LJ 1206 : (1977) 3 SCC 68 (SC)]. [s 163.5] Problem of securing evidence.— As the law stands today, if a complaint is made against torture, death or injury, in police custody, no evidence is available to substantiate the charge in a Court of law. The prosecution is unable to produce evidence to prove the charge. It is difficult to secure the evidence against policemen responsible for resorting to third degree methods, since they are in charge of records of the police station, which they may not find it difficult to manipulate. Consequently, prosecutions against the delinquent officers generally result in acquittal. [s 163.6] Burden of proof under the Indian Evidence Act.— In this context, one has to examine the law relating to burden of proof, contained in sections 101 to 114 of the Evidence Act. The general principle deducible from these sections is that it is for the prosecution to prove the essential elements of the offence charged and if those essential elements are proved, it is for the accused to prove that the case falls within the general or special exceptions to criminal liability recognised by the criminal law. In certain special situations, this position does undergo a change. As the law stands at present, there is no special proviso as to the burden of proof where the injuries were received by a person in police custody.

The Supreme Court in State of UP v Ramsagar Yadav, AIR 1985 SC 416 : (1985) 1 SCC 552 : 1985 (1) Crimes 344 , suggested amendment of the law relating to burden of proof in the law of evidence. The Court in this case had to deal with a highly shocking incident of torture of a suspect in police custody, who died within almost six hours of his arrest by the police. Two hours after his arrest, the person was produced before a Magistrate and he was found to be badly injured and in a serious condition. And yet, the Magistrate remanded him to custody. The prison doctor found that there were injuries on various parts of his body and his condition was critical. The Magistrate and the doctor were told by the accused that the police constables had beaten him up. The Sessions Judge held that death had resulted from the injuries and convicted the accused policemen only under section 304 of Indian Penal Code, 1860. The Supreme Court regretted that the sessions judge had been unduly liberal by convicting the accused under section 304 and not under section 302. The Court laid stress on the extremely peculiar character of the situation, where a police officer alone (and none else) can give evidence regarding the circumstances in which a person in police custody comes to receive injuries. The result is that a person on whom atrocities are perpetrated by the police in the sanctum sanctorum of the police station is left without any evidence to prove who the offenders are. This situation naturally results in paucity of evidence and probable escape of the guilty persons. It was for this reason that the Court called for a reexamination of the law of burden of proof.

Page 3 of 4 [s 163] No Inducement to be offered.—

The Supreme Court, in Bhagwan Singh v State of Punjab, AIR 1992 SC 1689 : (1992) 3 SCC 249 : 1992 (2) Crimes 329 (SC), again pointed out that if a person is in police custody, then what has happened to him is peculiarly within the knowledge of the police officials who have taken him into custody. When the other evidence is convincing enough to establish that the deceased died because of the injuries inflicted by the accused, the circumstances would only lead to an irresistible inference that the police personnel who caused his death must also have caused the disappearance of body.

In Nilabati Behera v State of Orissa, AIR 1933 SC 1960 : 1993 Cr LJ 2899 : (1993) 2 SCC 746 (SC), the Supreme Court observed that where the admitted facts of the case indicate that the victim was taken in custody and later, on the next day he was found dead near the police post, the burden was clearly on the State to explain how the victim sustained those injuries which caused his death. The Court added that “unless a plausible explanation is given by the respondents which is consistent with their innocence, the obvious inference is that the fatal injuries were inflicted on Suman Behera in police custody resulting in his death, for which the respondents are responsible and liable”. The Court again emphasised the need for changes of the rule of burden of proof in such case. [s 163.7] Law Commission’s recommendation (113th Report).— On the suggestion of the Supreme Court in Ramsagar Yadav’s case (1985), the Law Commission, in its 113th Report, recommended the insertion of new section as section 114B in the Indian Evidence Act, as under—

114-B. (1) In a prosecution of Police Officer for an offence constituted by an act alleged to have caused bodily injury to a person, if there is evidence that the injury was caused during a period when that person was in the custody of the police, the Court may presume that the injury was caused by the Police Officer having custody of that person during that period.

(2) The Court in deciding whether or not it should draw a presumption under sub-section (1) shall have record to all the relevant circumstances, including in particular (a) the period of custody, (b) any statement made by the victim as to how the injuries were received, being a statement admissible in evidence, (c) the evidence of any medical practitioner who might have examined the victim and (d) evidence of any Magistrate who might have recorded the victim’s statement or attempted to record it.

The Law Commission further recommended that the Court, while considering the question of presumption, should have regard to all relevant circumstances including the period of custody, statement made by the victim, medical evidence and the evidence, which the Magistrate may have recorded. The Law Commission’s view still holds good and must be implemented at the earliest. If the custodians of law themselves indulge in committing crimes, then no member of society is safe and secure. Torturing a person and using third degree methods are of medieval nature and they are barbaric and contrary to law.

It is worth mentioning that the Parliament amended the Evidence Act for raising a presumption in the case of rape in custody and dowry death with a view to meeting the growing incidence of sexual exploitation during custody. Parliament inserted sections 113 and 113B in the Indian Evidence Act, empowering the Court to draw presumption against the accused in prosecution for rape and dowry deaths. This legislative step was taken to meet the technical plea of lack of evidence in rape and dowry cases. There appears to be no reason as to why the same principle should not be extended in the case of custodial crimes. [s 163.8] Case diary.— Court can look into the case diary of the case itself but cannot rely on it unless its extracts are proved after confronting the same to the witness concerned under section 162, Code of Criminal Procedure, 1973. The conduct of the trial Court in relying on the case diary cannot be justified, even if the counsel for the accused

Page 4 of 4 [s 163] No Inducement to be offered.— appellant had no objection or had given his consent [Mahavir v State of UP, (1990) Cr LJ 1605 : 1990 All Cr R 295 (per HC Mittal J)]. [s 163.9] Discovery statements.— Statement not partaking of the character of confessional statement envisaged by section 27, Evidence Act would not be admissible in view of bar of section 162, Code of Criminal Procedure, 1973 but the fact of the appellant’s going to place and getting recovered some clothes etc, would be admissible under section 8 of the Evidence Act as his “conduct” [Mahavir v State of UP, (1990) Cr LJ 1605 : 1990 All Cr R 295 (DB)] [Safi Mohd Husain v State of UP, 1992 Cr LJ 1755 (All) : 1992 All LJ 588 : 1991 All Cr C 432]. End of Document

[s 164] Recording of confessions and statements.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER XII INFORMATION TO THE POLICE AND THEIR POWERS TO INVESTIGATE

The Code of Criminal Procedure, 1973 CHAPTER XII INFORMATION TO THE POLICE AND THEIR POWERS TO INVESTIGATE [s 164] Recording of confessions and statements.— (1) Any Metropolitan Magistrate or Judicial Magistrate may, whether or not he has jurisdiction in the case, record any confession or statement made to him in the course of an investigation under this Chapter or under any other law for the time being in force, or at any time afterwards before the commencement of the inquiry or trial: 1

[Provided that any confession or statement made under this sub-section may also be recorded by audio-video electronic means in the presence of the advocate of the person accused of an offence: Provided further that no confession shall be recorded by a police officer on whom any power of a Magistrate has been conferred under any law for the time being in force.] (2) The Magistrate shall, before recording any such confession, explain to the person making it that he is not bound to make a confession and that, if he does so, it may be used as evidence against him; and the Magistrate shall not record any such confession unless, upon questioning the person making it, he has reason to believe that it is being made voluntarily. (3) If at any time before the confession is recorded, the person appearing before the Magistrate states that he is not willing to make the confession, the Magistrate shall not authorise the detention of such person in police custody. (4) Any such confession shall be recorded in the manner provided in section 281 for recording the examination of an accused person and shall be signed by the person making the confession; and the Magistrate shall make a memorandum at the foot of such record to the following effect:— I have explained to (name) that he is not bound to make a confession and that, if he does so, any confession he may make may be used as evidence against him and I believe that this confession was voluntarily made. It was taken in my presence and hearing, and was read over to the person making it and admitted by him to be correct, and it contains a full and true account of the statement made by him. (Signed) A.B. Magistrate. (5) Any statement (other than a confession) made under sub-section (1) shall be recorded in such manner hereinafter provided for the recording of evidence as is, in the opinion of the Magistrate, best fitted to

Page 2 of 31 [s 164] Recording of confessions and statements.— the circumstances of the case; and the Magistrate shall have power to administer oath to the person whose statement is so recorded. 2 [(5A) (a) In cases punishable under section 354, section 354A, section 354B, section 354C, section 354D, sub-section (1) or sub-section (2) of section 376, section 376A, section 376B, section 376C, section 376D, section 376E or section 509 of the Indian Penal Code (45 of 1860) the Judicial Magistrate shall record the statement of the person against whom such offence has been committed in the manner prescribed in sub-section (5), as soon as the commission of the offence is brought to the notice of the police: Provided that if the person making the statement is temporarily or permanently mentally or physically disabled, the Magistrate shall take the assistance of an interpreter or a special educator in recording the statement: Provided further that if the person making the statement is temporarily or permanently mentally or physically disabled, the statement made by the person, with the assistance of an interpreter or a special educator, shall be videographed. (b) A statement recorded under clause (a) of a person, who is temporarily or permanently mentally or physically disabled, shall be considered a statement in lieu of examination-in-chief, as specified in section 137 of the Indian Evidence Act, 1872 (1 of 1872) such that the maker of the statement can be cross-examined on such statement, without the need for recording the same at the time of trial.] (6) The Magistrate recording a confession or statement under this section shall forward it to the Magistrate by whom the case is to be inquired into or tried. [s 164.1] STATE AMENDMENT IN SECTION 164 Andaman and Nicobar Islands and Lakshadweep Islands (U.T.).—The following amendments were made by Regulation No. 1 of 1974, section 5 (w.e.f. 30 April 1974).

Section 164(1).—In its application to the Union Territories of Andaman and Nicobar Islands and Lakshadweep Islands after section 164(1), insert the following:—

(1-A) Where, in any island, there is no Judicial Magistrate for the time being and the State Government is of opinion that it is necessary and expedient so to do, that Government may after consulting the High Court specially empower any Executive Magistrate (not being a police officer), to exercise the powers conferred by sub-section (1) on a Judicial Magistrate and thereupon reference in section 164 to a Judicial Magistrate shall be construed as reference to the Executive Magistrate so empowered.

COMMENTS [s 164.2] Changes.— Section 164 corresponds to old section 164 with the following changes:

(1) In sub-section (1), the words “Any Metropolitan Magistrate or Judicial Magistrate may, whether or not he has jurisdiction in the case,” have been substituted for “Presidency Magistrate, and Magistrate of the first class and any Magistrate of the second class especially empowered in this behalf by the State Government may if he is not a police officer”: and the proviso has been added. (2) First part of old sub-section (3) has been numbered sub-section (2). (3) Sub-section (3) has been added.

Page 3 of 31 [s 164] Recording of confessions and statements.— (4) Old sub-section (2) and second part of old sub-section (3) have been redrafted and made sub-sections (4), (5) and (6).

Material changes introduced are:

(1) Power to record confessions has been conferred on all judicial Magistrates instead of specified Magistrates under the old section. (2) As a further safeguard to ensure that the confession is voluntary new sub-section (3) prohibits a remand to police custody of a person expressing unwillingness to make the confession when produced before the Magistrate. But this does not of course mean, or imply, that remand has to be made if the accused wants to confess. (3) In sub-section (5) an express provision has been made that oath may be administered to the person making the statement to lend it some sanctity. [s 164.2.1] CrPC (Amendment) Act, 2008 (5 of 2009).— In sub-section (1) of section 164 for the existing proviso, two new provisos have been substituted vide the Code of Criminal Procedure, 1973 (Amendment) Act, 2008 (5 of 2009).

Section 164 relates to recording of confession and statements. The newly added first proviso provides that any confession or statement made may also be recorded by audio-video electronic means in the presence of the advocate of the person accused of an offence. [vide Notes on Clauses, Clause 13]. [s 164.2.2] Criminal Law (Amendment) Act, 2013 .— Some important provisions have been inserted in section 164 by the above mentioned Act. These amendments have been carried out on the recommendations of the Justice JS Verma Committee, which submitted its report on 23 January 2013.

Clause (a) of sub-section (5A) empowers the Judicial Magistrate to record the statement of the victim of offences enumerated in the clause as soon as the offence is brought to the notice of the police.

Two provisos have been appended to clause (a) of sub-section (5A) which lay down the procedure in case of the victim of any of the offences enumerated in the clause (a) being temporarily or permanently physically or mentally disabled and for video graphing of the said recording.

Clause (b) of sub-section (5A) lays down that the statement of the victim so recorded shall be a statement in lieu of the examination-in-chief, without the need for recording the same at the time of trial, so that the maker of the statement can be cross-examined on such statement. [s 164.3] Scope and application of section 164.— This section empowers any Metropolitan or Judicial Magistrate whether or not he has jurisdiction in the case to record any confession or statement of a person made in the course of investigation by the police, or (when the investigation has been concluded) at any time afterwards but before the commencement of the inquiry or trial. It applies only to statements recorded in investigation underchapter XII [Shafi Ahmed, 49 B 632, 652] and is limited to the period before the inquiry or trial [Ramsaran, AIR 1945 N 72; Rishi v State of Bihar, AIR 1955 Pat 425 : 1955 Cr LJ 1377 ]. Confession recorded under section 164 after investigation has concluded and inquiry has commenced is not admissible [State v Ram Autar Chaudhry, AIR 1955 All 138 : 1955 Cr LJ 394 : 1955 All LJ 330; Bachchan Lal v State, AIR 1957 All 184 : 1957 Cr LJ 344 : 1957 All LJ 20 : 1957 All WR 86; Ram Singh v State, AIR 1959 All 518 : 1959 Cr LJ 940 : 1958 All LJ 660 : 1958 All Cr R 492]. But a confession may

Page 4 of 31 [s 164] Recording of confessions and statements.— be made in the Court of the committing magistrate (committal proceedings have however been done away with by the new Code) or even during trial [Hemraj v State of Ajmer, AIR 1954 SC 462 : 1954 SCR 1133 : 1954 Cr LJ 1313 ] and section 164 does not relate to such a confession. Section 281 refers to the mode of examination of an accused in any inquiry, or when he is being tried for an offence and does not apply to the investigation stage as in section 164. The substantive law as to confession is in sections 24–30, Evidence Act and the adjective law in sections 163, 164, 281 and 463 of the Code, sections 164, 313, 281 are not exhaustive and do not limit the generality of section 21, Evidence Act as to the relevancy of admission [Barindra, 37 C 467].

Section 164 applies to all sorts of confessions whether made by a person accused of an offence or not [Karam Ilahi v Emperor, AIR 1947 Lah 92 : (1946) 47 Cr LJ 772 : 48 Punj LR 382]. Though ordinarily section 164 is made use of when an accused desirous of making a confession is brought to a Magistrate for its record, it is not restricted only to confessions. The section says “any confession or statement”. It does not specifically mention any person whose confession or statement is to be recorded; it may be an accused or one who may ultimately be an accused, or a witness capable of giving useful information relating to the offence. Again, the “statement” may be a confession or it may not amount to a confession, or it may be partly confessional and partly exculpatory [see Lalu, 1893 PR 2 ; Abdul Rahim, AIR 1925 C 926; Lalit, 49 C 167; Ghulam Hussain v The King, (1950) 51 Cr LJ 1552 : 54 Cal WN 464 (PC); Golam Md, 4 P 327; Shiv Bahadur Singh v State of Vindhya Pradesh, AIR 1954 SC 322 : 1954 SCR 1098 : 1954 Cr LJ 910 ]. The distinction between “statement” (i.e., not amounting to confession) and “confession” appears to have reference only to the different modes in which it has to be recorded under sub-sections (4) and (5).

The fact that the statement of the witness was recorded under section 164 only after an interval of one month from the date of occurrence cannot be rejected as belated revision [State v Shaik Mazhar, AIR 2001 SC 2427 : 2001 Cr LJ 3287 : 2001 (3) Crimes 126 (SC)].

The recording of statement under section 161 is a condition precedent for recording statement under section 164, Code of Criminal Procedure, 1973 [Amar Hussain v State of Assam, 2004 (15) AIC 942 ].

No illegality is committed if Magistrate records statement of witnesses according to the procedure prescribed. Similarly, procedure prescribed must be followed for recording of confession of accused [State v Giraksha Ambaji Adsual, 2006 Cr LJ (NOC) 45 (Bom) : 2006 (1) AIR Bom R45 : 2005 All MR (Cri) 2969 : 2006 (1) Cur Cri R515].

The principles that emerge with regard to section 164 of the Code are (i) The provisions of section 164 of the Code must be complied with not only in form, but in essence, (ii) Before proceeding to record the confessional statement, a searching enquiry must be made from the accused as to the custody from which he was produced and the treatment he had been receiving in such custody in order to ensure that there is no scope for doubt of any sort of extraneous influence proceeding from a source interested in the prosecution, (iii) A Magistrate should ask the accused as to why he wants to make a statement which surely shall go against his interest in the trial, (iv) The maker should be granted sufficient time for reflection, (v) He should be assured of protection from any sort of apprehended torture or pressure from the police in case he declines to make a confessional statement, (vi) A judicial confession not given voluntarily is unreliable, more so, when such a confession is retracted, the conviction cannot be based on such retracted judicial confession, (vii) Non-compliance of section 164 of the Code goes to the root of the Magistrate’s jurisdiction to record the confession and renders the confession unworthy of credence, (viii) During the time of reflection, the accused should be completely out of police influence. The judicial officer, who is entrusted with the duty of recording confession, must apply his judicial mind to ascertain and satisfy his conscience that the statement of the accused is not on account of any extraneous influence on him, (ix) At the time of recording the statement of the accused, no police or police official shall be present in the open court, (x) Confession of a co-accused is a weak type of evidence and (xi) Usually the Court requires some corroboration from the confessional statement before convicting the accused person on such a statement [Rabindra Kumar Pal v Republic of India, AIR 2011 SC 1436 : (2011) 2 SCC 490 ]. [s 164.4] Article 21 of the Constitution.— Section 164 does not violate Article 20 of the Constitution [Dev Dass Deweed v State, 1996 Cr LJ 1441 , 1448 : 1996 (2) All Cr R 392 : 1996 (3) Cur Cr R 288 (Cal)].

Page 5 of 31 [s 164] Recording of confessions and statements.— [s 164.5] Statements to the police.— Section 164 comes into play when in the course of an investigation an accused or any other person desiring to make any statement is brought to a magistrate so that any confession or statement that he may make be disposed to make of his free will is recorded. Confessional statements by the accused to the police are absolutely excluded under section 25, Evidence Act. All statements by witnesses to the police are also shut out by section 162 except for the strictly limited purpose of contradiction of prosecution witnesses during trial. These rules of law have the origin because of the unreliability of the police and their tendency to adopt third degree methods for extorting statements. “The police investigating agency in our country has not yet acquired the reputation of being proof against temptation of attempting to secure confessions by questionable methods [Dua J in Mohan Singh Balwant Singh v State, AIR 1965 Punj 291 : 1965 (2) Cr LJ 127 : 66 Punj LR 1230]. The intention is to protect persons against extortion or oppression by them. The presence of a Magistrate being a safe-guard, is equivalent to removal of police influence and so under such confession (while in police custody) made to persons other than the police the immediate presence of a Magistrate is relevant. These provisions are undoubtedly salutary, but sometimes the total ban imposed on statement to the police results in the loss of much useful information. The first information of an offence under section 154 is recognised to be of considerable value as it is the original story given shortly after an offence before there is time to forget, embellish or fabricate. On identical grounds, it must be conceded that first statement or explanation of a person charged with an offence, to the police soon after the occurrence must also contain valuable materials. But as it is absolutely excluded, enough time is left before the actual inquiry or trial to alter the statement or to formulate a defence on the line the accused may later be advised. So it has been held that statements made soon after the incident are far more trustworthy than later statements or embellishments [Alla Bakhsh v The Crown, 1952 Cr LJ 79 (FC) Pakistan; Public Prosecutor v K Jalayya, AIR 1954 Mad 303 : 1954 Cr LJ 374 : 1953 Mad LW 554 ]. It has therefore been suggested by Mack J, that in serious offences: —

the police would do well to take an accused person before a Magistrate, whether he makes a confession or not, and have a statement recorded under section 164, so that the accused person can be fixed to one explanation when placed in a position which becomes incriminating unless he can offer a satisfactory explanation for his behaviour [Sitramayya, AIR 1951 M 61, 63].

There is much to be said in favour of the suggestion made by a judge with such a long experience of criminal cases. Although it may be retracted afterwards, as is often done in the case of confessions, what is stated before the Magistrate is evidence in law and it will be for the judge to determine whether the earlier or the later version is true.

Ordinarily the police move in the matter and take a person to a Magistrate for recording his statement, but they may not in some cases desire to have a person’s statement recorded. There is nothing to prevent a private party or the accused’s pleader from asking the Magistrate to record the statement of a witness though he has a discretion to record or refuse to do so [Casee, A 1948 M 489]. A confession is not inadmissible merely because the accused was in illegal custody or was not formally extradited [Prabhu, AIR 1944 PC 73 : 71 IA 75 : 46 LJ 119; Nathu Ram v State, AIR 1951 HP 1 : 1951 Cr LJ 50 ].

Section 164 should be read together with sections 24, 25, 26 and 29, Evidence Act and so read the following result follows: (1) Confession shall not be made to a police officer. (2) It must be made in the presence of a Magistrate. (3) The Magistrate shall not record it unless he is, upon enquiring, satisfied that it is voluntary. (4) He shall record it in the manner laid down in section 164 (read with section 281). (5) And only so recorded it will be relevant and admissible [Saw Min, AIR 1939 R 219; see Nazir Ahmad, 63 IA 372 : 40 Cal WN 1221 : AIR 1936 PC 253 ].

The magistrate who recorded that the confession gave evidence that the accused after being produced before him was kept in charge of the Court. Sub-Inspector who produced before the Magistrate was also present in his chamber when confessional statement was recorded. Held, law is well-settled that a confession made before a

Page 6 of 31 [s 164] Recording of confessions and statements.— police officer is not admissible. Presence of the police when confession is recorded does not free the mind of the accused from police influence and has no evidentiary value [Surendra Dharua v State of Orissa, 2009 Cr LJ 3904 (3909) (Ori) : 2009 (44) OCR-464 ].

Confession is admissible without examining the magistrate recording the same. If it is not in conformity with law, examination of the magistrate would not cure it [Bisipati, AIR 1969 Ori 289 ; (Kashmira Singh v State of MP, AIR 1952 SC 159 : 1952 Cr LJ 839 (SC), followed)].

A Coroner taking down a confessional statement is not required to comply with the formalities in section 164 [Dasrath, 1945 B 265, FB].

It is competent for a Magistrate to record a statement under section 164 even though the investigating police have not taken any initiative to request the magistrate to record the statement. There may be instances where the police may not desire to have the statement of a witness recorded. Even in such case nothing prevents a person from going to a Magistrate with the request to have his statement recorded. [s 164.6] Use in evidence.— A statement recorded under section 164 is not substantive evidence. It can be used either for contradiction or for corroboration. A statement under section 164 is to be recorded in the course of investigation or at any time after-wards, but before the commencement of the inquiry or trial. Therefore, where in a murder case, in the course of investigation, the police refused to record the statement of a person who claimed to have seen some events connected with the incident and the person therefore approached the Magistrate for recording his statement under section 164, but by that time, the final report had already been laid before the Court and it was almost certain that the Magistrate would have commenced the inquiry for committal, the Magistrate was justified in refusing to record his statement as the person could avail of the opportunity of disclosing the facts known to him at the trial stage [Kunjukutty v State of Kerala, 1988 Cr LJ 504 : 1986 Ker LT 1011 (Ker)].

The contention that a statement under section 164, Code of Criminal Procedure, 1973 of an accomplice/coaccused cannot be used as evidence against the accused is misleading. It is well-settled that in dealing with a case against an accused person, the Court cannot start with the confession of a co-accused and it must begin with other evidence adduced by the prosecution and after it has formed its opinion with regard to the quality and effect of such evidence, it is permissible to turn to the confession in order to lend support or assurance to the conclusion of guilt which the Court is about to reach on the other evidence.

Thus, in a case under the Prevention of Corruption Act, 1947 relating to possession of assets disproportionate to income, a huge amount of cash was recovered from the possession of the accused. The Supreme Court rejected the plea of the accused to exclude the statement of two witnesses recorded under section 164. It was held that the evidence of the two witnesses was used more as corroboration and the witnesses were not “coaccused” or “accomplices” or “abettors” of the accused in regard to the charge of disproportionate assets. Rather, they came into picture only after the appellant’s house was raided in an effort by the appellant to explain the huge amount of cash recovered from his house [R Jankiraman v State, AIR 2006 SC 1106 : (2006) 1 SCC 697 : 2006 Cr LJ 1232 (SC). See also Haricharan v State of Bihar, AIR 1964 SC 1184 : 1964 Cr LJ 344 (SC) : 1964 (6) SCR 632 : Dagdu v State of Maharashtra, AIR 1977 SC 1579 : 1977 (3) SCC 68 : 1977 Cr LJ 1206 (SC)]. [s 164.7] Who can record confession.— Only the Magistrates specified in section 164 can record. When a Magistrate not authorised under the section purposes to record a confession, his oral evidence to prove the confession is not admissible. The rule in (Taylor v T, 1876 (1) Ch D 426 ) that where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all and that other methods of performance are necessarily forbidden applies to judicial officers. Section 463 is of no avail [State of UP v Singhara Singh, AIR 1964 SC 358 : 1964 (1) Cr LJ 263 (2) (SC); (Nazir Ahmed, AIR 1936 PC 253 , followed); Nika Ram v State of HP, AIR 1972 SC 2077 : 1972 Cr LJ 1317 (SC)]. Any special metropolitan Magistrate or any special judicial Magistrate being judicial Magistrate of the second class is competent to record confession. Magistrate directing police investigation [Mairsi, 12 Cr LJ 489], or who afterwards conducts the preliminary enquiry [Barindra, 37 C 467; Mohinder, AIR

Page 7 of 31 [s 164] Recording of confessions and statements.— 1932 L 103; Re Karunthambi, AIR 1950 Mad 579 : 1950 Cr LJ 1047 : 63 Mad LW 449 : 1950 (1) Mad LJ 659 : 1950 Cr LJ 1047] may record. It is proper that the Magistrate recording confession who would be a witness, should as far as possible be not the committing Magistrate [Karunthambi, supra].

A Magistrate without requisite power can record a confessional statement by a person during inquest under section 176 and it is not inadmissible [Re Ramaswami Reddiar, AIR 1953 Mad 138 : 1953 Cr LJ 315 : 1952 (2) Mad LJ 814 : ILR (1953) Mad 924 , post]. A dying declaration relevant under section 32(1), Evidence Act can be recorded by a Magistrate without the requisite power, but it must be proved in the usual way [Chadgi, AIR 1930 L 60; Rahman, AIR 1932 L 14; Sulaiman, AIR 1941 R 301; Mohammed Sarfaraz Khan v Crown, (1951) 52 Cr LJ 1425 ; State v Kuruvilla Ouseph, AIR Trav Co 243 : 1955 Cr LJ 1405 : 1955 Ker LT 324 ]. Confession recorded by third class Magistrate of foreign State is not inadmissible [Hulasi, A 1933 A 286].

Executive Magistrate.—In Arunachal Pradesh and Mizoram Executive Magistrate can record confession. [State of Mizoram v Sri Lalrinawma, 2000 Cr LJ 2358 : 2000 (2) Crimes 344 : 2000 (2) Gau LR 406 (DB—Gau)].

Section 164, Code of Criminal Procedure, 1973 contemplates recording of confession or statements only by a Magistrate or Judicial Magistrate. The provision being mandatory confession of the accused before the Tehsildar, even if he is treated like an Executive Magistrate, will not be admissible in evidence [Ali v Inspector of Police, Metapalayam, Madurai, (2007) 1 Mad LJ (Cr) 28 (Mad)].

Special Magistrate.—Recording of confession by Special Magistrate is illegal. [Bhausaheb v State of Maharashtra, 1997 Cr LJ 467 (Bom)].

Statement of injured witness recorded by Magistrate as dying declaration but survived, can be treated as statement recorded under section 164, Code of Criminal Procedure, 1973 and same can be etc. used for corroborate. [Sunil Kumar v State of MP, AIR 1997 SC 940 : 1997 Cr LJ (SC) 1183 : (1997) 10 SCC 570 : 1997 (1) Crimes 238 ]. [s 164.8] Caution.— Where the confessional statement was recorded after the accused was cautioned about the consequences of his confession it was held there was no irregularity and the confession was proper [Debendra Pradhan v State of Orissa, 1996 Cr LJ 326 (Ori)]. [s 164.9] “May record”.— One view is that in spite of “may”, all confessions should be recorded [Maroti, 55 IC 465, per Shah J—Contra; Hayward J; Lalit, 25 Cal WN 788, 793]. The other view is that it is not obligatory to record [Pedda, 45 M 230; Nga Thein, AIR 1936 R 350; Casse, AIR 1948 M 489]. The Privy Council held that recording is a matter of duty and discretion and not of obligation. A Magistrate would not be obliged to record a confession if it were that of a self-accusing mad man or for any other reason he thought it to be incredible or useless for the purpose of justice, e.g., when he is not satisfied about its voluntary nature [Nazir Ahmad, 40 Cal WN 1221, 1227 : AIR 1936 PC 253 : 63 IA 372]. It is the imperative duty of a Magistrate to ascertain by questioning whether the confession is voluntary or prompted by police or other influence. If he is convinced that it is not voluntary he has no jurisdiction to record. But if he is satisfied that it is perfectly voluntary, it would seem that he is then bound to record it and “may” in such a case is equivalent to “must” [see per Shah J in Maroti, 21 Bom LR 1065]. “Record” means to write down and not merely to file a written and signed statement handed over by an accused saying that it contained his confession [Rambaran, AIR 1933 All 353 ; see however, Ramnaresh, 40 Cr LJ 559].

The Magistrate may refuse to record a statement or confession if police has already submitted its report and the person whose statement is to be recorded can disclose facts at the trial [Kunjakutty v State of Kerala, 1988 Cr LJ 504 : 1986 Ker LT 1011 (Ker)]. [s 164.10] “Confession”.— Stephen’s definition of “confession” which included admission “suggesting the inference that he committed the crime” and when was acted upon by most Courts for a very long time was modified by the Privy Council holding

Page 8 of 31 [s 164] Recording of confessions and statements.— that only a direct acknowledgment of guilt should be regarded as a confession. A confession must either admit in terms the offence, or at any rate substantially all the facts which constitute the offence. An admission of a gravely incriminating fact, even a conclusively incriminating fact, is not of itself a confession [Pakala Narayana, 66 IA 66 : AIR 1939 PC 47 : 43 Cal WN 473, 481–482; Palvinder Kaur v State of Punjab, AIR 1952 SC 354 : 1953 SCR 94 , 104 : 1953 Cr LJ 154 ; Om Prakash v State of UP, AIR 1960 SC 409 : 1960 Cr LJ 544 ]. As to the meaning of “confession” and distinction between an “admission” and “confession”, see Sarkar’s Evidence, 13th Edn, pp241-243 and as to extra-judicial confession, see ibid, p 245. As to the propriety of verification proceedings with a view to test the accuracy of statements in confession, see ibid, p 265.

Magistrate need not record reasons that confession was voluntary. [Ammini v State of Kerala, AIR 1998 SC 260 : (1998) Cr LJ 481 : (1998) 2 SCC 301 : 1997 (4) Crimes 131 (SC)]. [s 164.11] Confession: Voluntariness.— The Magistrate must satisfy himself that no pressure or force was used on the accused who makes the confession. Any marks on the person of the accused vitiate the voluntary character of the confession [Sh Lalhirpuria v State of Mizoram, 2004 (4) Crimes 545 (Gau) : 2004 (3) Gau LR 196 : 2004 Cr LJ 3447 ]. The statement having been made voluntarily and not being the result of any duress or coercion by the police and having been recorded after due warning and after giving him sufficient time to reflect. The inculpatory part deserves to be accepted and the exculpatory part deserves to be rejected being found unreliable [Dil Bahadur Tamang v State of Sikkim, 2005 Cr LJ 786 ]. Where a confession was recorded by a Magistrate almost a month after the accused was removal into judicial custody and was otherwise found to be voluntary, its voluntariness cannot be doubted merely on the ground that—

(a) the geographical distance between the subject and the Police Station was short; or (b) a Magistrate belonging to a distant place was asked to record it or; (c) it was not ascertained as to how the Investigating Officer came to know that the accused wanted to confess. [State of Maharashtra v Damu Gopinath Shinde, 2000 Cr LJ 2301 (SC) : 2000 (4) Scale 8 ].

A confession, judicial or extra-judicial if found to have been voluntarily made can form the basis of conviction of the accused [State of Rajasthan v Rajaram, 2003 SCC (Cri) 1965 : AIR 2003 SC 3601 : 2003 Cr LJ 3901 : 2003 (3) Crimes 346 ].

Where there is no infraction of section 164 but failure on the part of Magistrate to ask the accused as to why he wants to give a confession or failure of the Magistrate to provide him with legal assistance, that will not vitiate the confession without anything more [State by the Inspector of Police, Coimbatore v Manoharan, 2014 (2) Mad LJ (Cr) 1 : 2015 Cr LJ 1215 (Mad)].

Where the facts stated in the confessional statement are otherwise proved by the prosecution, the confessional statement would be presumed to be voluntarily made [State v Mohd Afzal, (2004) (1) Crimes 227 (Del)].

For admissibility of confession, Court has to satisfy itself with regard to (i) voluntariness of the confession, (ii) truthful of the confession, and (iii) corroboration Court while relying on retracted confession must satisfy itself that the same is truthful and trustworthy [Aloknath Dutta v State of WB, 2007 (1) Crimes 321 (SC)].

Even on the dates of remand extensions, the accused have failed to inform the Judicial Magistrate that they were harassed and forced to give confession statements. In the absence of their proper complaint, it cannot be contended and held that the confession statements were not given by them voluntarily. [P Muthunachi v State, 2011 Cr LJ 2047 (2054) (Mad)].

Page 9 of 31 [s 164] Recording of confessions and statements.—

In absence of any complaint that a confessional statement was taken forcibly, and without the wish of the accused, the plea that its recording just a day before expiry of remand vitiates its voluntary nature is baseless. [State through Superintendent of Police CBI/SIT v Nalini, AIR 1999 SC 2640 : 1999 Cr LJ 3124 : (1999) 5 SCC 253 : 1999 (2) Crimes 59 (SC)]. [s 164.12] Statement recorded by Magistrate at police station.— Confession recorded by the magistrate at the police station would be inadmissible in evidence [Sorojini Devi v State of UP, 2008 (2) Crimes 408 (Uttarakhand—DB)]. [s 164.13] Confession put into writing but not under section 164.— Section 164 applies only to confession recorded in the course of an investigation under chapter XII. But an accused may acknowledge his guilt or confess to a magistrate not empowered under section 164, or a confession may be made to a Magistrate not in the course of investigation e.g., in an inquiry under section 159 or an inquest under section 176 etc. Is such a confession not made or recorded under section 164 inadmissible? There does not appear to be anything in Nazir Ahmad’s case to warrant the extreme proposition that in no circumstances can a confession be made or recorded unless it be under section 164. What it actually decides is that if a confession (made in the course of an investigation) is recorded, it can be done only in accordance with the formalities prescribed in sections 164 and 281 and can be proved only by such record. A confession purporting to be recorded under section 164 but done in gross violation of the procedure in the section is inadmissible and cannot be proved by the oral evidence of the Magistrate [Nazir Ahmad v KingEmperor, 63 IA 372 : AIR 1936 PC 253 : 37 Cr LJ 897 : 40 Cal WN 1221 : 166 Ind Cas 793].

In Re Ramaswami Reddiar, AIR 1953 M 138, 141 : 1953 Cr LJ 315 : 1952 (2) Mad LJ 814 : 1952 Mad WN 897, the Judges observed:—

Sarkar in his Law of Evidence, 8th Edn, p 241 has an interesting commentary on the effect of the Privy Council decision—Nazir Ahmed v King-Emperor, 63 IA 372 : 17 Lah 629, PC and on the extent to which previous decisions have been affected by that decision. We find ourselves in complete agreement with the following observations of his:

It may however be observed that section 164, Code of Criminal Procedure, 1973 comes into play when during an investigation an accused is formally brought before a Magistrate for the purpose of recording his confession.

This being in accordance with our opinion we would like to give it judicial endorsement. We are also in agreement with his further opinion to the following effect:

Admission of guilt or of an incriminating fact may be made by an accused to a Magistrate in the course of a statement to him on occasion other than when he is so brought for recording his confession and such statements appear to stand at least on the same footing as an extra-judicial confession to a third person or an admission under section 21.

It has been held in this case that a confession recorded by a Magistrate (not empowered to record a confession under section 164) holding an inquest under section 176(1) can record a confession as the powers under that section include the power of taking down any statement, whether it be a confession or not, from any person who knows any thing about the cause of death [Re Ramaswamy Reddier, supra] (effect of Nazir Ahmad case discussed; relied on is Public Prosecutor v Shaik Ibrahim, AIR 1964 AP 548 : 1964 (2) Cr LJ 636 : 1964 (2)

Page 10 of 31 [s 164] Recording of confessions and statements.— Andh WR 43 : 1964 Mad LJ (Cri) 415; see also Ghulam Hussain v The King, 54 Cal WN 464, 467 : (1950) 51 Cr LJ 1552 PC] where it has been held that a statement under section 164 not amounting to a confession can be used against the maker as an admission under sections 18–21, Evidence Act. Where the accused went to a Magistrate and said that he had killed his concubine and he recorded it without observing any of the formalities required by section 164, it is admissible as a first information and it was not a statement made during investigation [Nainamuthu, AIR 1940 M 138]. For further information see Sarkar’s Evidence, 13th Edn, pp 261, 298–300. Confession in a petition to a magistrate is admissible under section 21 [Ramnaresh, AIR 1939 A 242].

When a Magistrate records a confession without following the precautions in section 164, the confession though made independently of police investigation cannot be taken into consideration [Noor Uddin v State, AIR 1965 All 40 : 1965 (1) Cr LJ 4 ]. Where an accused in the course of a dying declaration to a magistrate makes a confession it is not admissible as it was not recorded after warning as provided in section 164 [Babbu v State, AIR 1954 All 633 : 1954 Cr LJ 1341 : 1954 All LJ 614]. The question was not examined from the point of view discussed above as also under “Statements under section164 not amounting to confession” post.

Confession recorded without compliance with sections 164–364 is not admissible, particularly if it did not relate to the murder of the deceased for which the accused was convicted inasmuch as the name of victim (as recorded in the statement) was different from the name of the deceased in the case [Hemant Kumar v The State, 1991 Cr LJ 3239 : 1991 (2) Crimes 382 : 1991 All Cr C 302 : 1991 All WC 555 (All—DB)]. [s 164.14] Oral confession before Magistrate [Confession not recorded under section 164].— Confession made orally but not recorded under section 164 now remains to be considered. Section 26 of Evidence Act makes no distinction between an oral or written confession, but embodies a rule of substantive law [Jograj, AIR 1930 L 534 : 129 IC 289]. The obligation to record a confession in writing under section 164 arises when an accused is brought in the course of an investigation. But when an accused is produced for any other purpose, e.g., for a remand and makes a confession or an incriminating statement, there is no obligation to record it and it can be proved by the Magistrate’s oral testimony [Jograj, supra] e.g. a confession to a Magistrate at an interview in jail [Rayalugadu 1941, 723], or during an enquiry under section 159 [Tangedupalee, 45 M 230], or to a Magistrate who was associated with the investigating officer [Karan, AIR 1936 L; see Abdulla, 1933 L 716, FB]. It has been observed by the Judicial Committee that section 91, Evidence Act is no bar to the admission or oral evidence of a confession made to a Magistrate which he was bound to record under sections 164 and 281 [Nazir Ahmad, 40 Cal WN 1221, 1227 : AIR 1936 PC 253 : 37 Cr LJ 897]. Oral confession to a Magistrate can be proved under section 26 of the Evidence Act [Sucha, AIR 1932 L 488; Alla Baksh, AIR 1933 L 956; Itwari, AIR 1933 O 432; Sidheshwar, AIR 1934 A 351; Matriram, AIR 1933 L 998—Contra : Rishi v State of Bihar, AIR 1955 Pat 425 : 1955 Cr LJ 1377 ; Kommoju, AIR 1940 P 163]. It is a relevant fact under section 21, Evidence Act [Feroj, 45 IC 843, see Nazir, AIR 1925 L 557; Baghel, AIR 1929 L 794]. Decisions like these do not appear to have been affected by Nazir Ahmad, 63 IA 372 : AIR 1936 PC 253 : 40 Cal WN 1221 for the reason already stated (ante; see Sarkar’s Evidence, 13th Edn, pp 298–299]. It should also be noted that section 164 does not limit the generality of section 21 of the Evidence Act as to relevancy of admissions [Barindra, 37 C 467], or exclude confessions otherwise admissible [Arunachala, AIR 1932 M 500]. The view above is fortified by a later Privy Council decision which held that a statement to a Magistrate functioning under section 164 which does not amount to a confession can be used against the maker as an admission under sections 18–21 [Ghulam Hussain v The King, (1950) 51 Cr LJ 1552 : 54 Cal WN 464, 467, (PC)]. Thus, oral evidence of admission of guilt to a Magistrate who went to entrap the accused is admissible [Chhutkannoo Singh v Rex, AIR 1949 Oudh 84 : (1950) 51 Cr LJ 219 ].

The decision of the Supreme Court in Zwinglee Ariel v State of MP, AIR 1954 SC 15 : 1954 Cr LJ 230 that a confession in the immediate presence of the Magistrate is not admissible under section 26, Evidence Act unless it is also recorded under section 164 does not, it is submitted with respect, appear to be in accordance with law, nor was any of the decisions cited above referred to or discussed. The obligation to record a confession with the formalities prescribed in section 164 arises only when it is made to a Magistrate “in the course of an investigation under chapter XII [see Nazir Ahmad, 63 IA 372 : AIR 1936 PC 253 : 40 Cal WN 1221, 1228] and not otherwise. In Ariel’scase, the oral confession to a Magistrate was made before the police has started investigation, nor was the accused then taken into custody. See comment on Ariel’s case in Sarkar’s Evidence 13th Edn, p 298. [s 164.15] Confession during trial.—

Page 11 of 31 [s 164] Recording of confessions and statements.— A confession can be made even during a trial. It may be made in the court, of the committing Magistrate [Hemraj v State of Ajmer, 1954 SCR 1133 : 1954 Cr LJ 1313 : AIR 1954 SC 462 ]. Section 164 does not relate to such a confession. [s 164.16] “Statement”.— The former view that “statement” referred to statement of a witness (as opposed to that of an accused whether amounting to confession or not) [Bhairab, 2 Cal WN 702; see Malka, 2 B 643] is not approved in other cases which held that it includes statement of witness and also of the accused whether the latter amounts to a confession or not. The distinction is not between persons making the “statement” but in the mode of recording a statement and a confession as laid down in sub-sections (4) and (5) [Lalu, 1893 PR 2 ; Lalit, 25 Cal WN 788; Abdul Rahim, AIR 1925 C 926 : 26 Cr LJ 1279; Karu, AIR 1937 N 254; Md Baksh, AIR 1941 SC 129 ; Golam Md, 4 P 327]. Approving, the Supreme Court has held that once investigation has started any non-confessional statement made by the accused is also required to be recorded in the manner laid down in section 164 and the Magistrate can give no oral evidence of it [Shiv Bahadur Singh v State of Vindhya Pradesh, AIR 1954 SC 322 : 1954 SCR 1098 : 1954 Cr LJ 910 ]. Statement by witness recorded in identification parades are made under section 164 [Abdul Aziz v The Crown, AIR 1950 Lah 167 : (1950) 51 Cr LJ 1350 , Kanai Lal Dwary v State, AIR 1950 Cal 413 : (1950) 51 Cr LJ 1520 ; Sheik Pinju v State, AIR 1952 Cal 491 : 1952 Cr LJ 1027 ]; but they can never be used as substantive evidence [Sheik Pinju v State, AIR 1952 Cal 491 : 1952 Cr LJ 1027 ; see post]. The magistrate conducting identification proceeding should confine his attention only to the steps to be taken for that and if he transgressing the limit records other statements, they must be done strictly in accordance with the provisions of section 164 [Harnath Singh v State of MP, AIR 1970 SC 1619 : 1970 Cr LJ 1422 (SC)]. Presumption of genuineness under section 80, Evidence Act attaches to statement recorded under section 164 [Sadula, 39 Cr LJ 864].

The statement of a witness under section 164, Code of Criminal Procedure, 1973 can be recorded when a person is sponsored by the Investigating agency. When it is not sponsored by the investigating agency the concerned Magistrate should look to the police diary and give sufficient time for reflection and also ascertain the bona fides of the parties concerned [Birju Ram v State of Rajasthan, 2006 Cr LJ 1794 (1799) (Raj); Kumar Nandan v State of Bihar, 2007 (1) Pat LJR 222 (Pat)].

Statement of a witness is generally recorded under section 164 to fix him to it when it is feared that he may resile afterwards or may be tampered with [see Nuri, 29 C 483; Parmeswar, AIR 1941 O 517; Re Gopisetti Chinna Venkata Subiah, AIR 1955 AP 161 : 1955 Cr LJ 1152 : 1955 Andh LT (Cri) 91 : 1955 Andh WR 220; Parmanand, AIR 1940 N 340; Jehangir, 28 Cr LJ 1012; Manni, 32 Cr LJ 48; Pranbandhu, ILR 1952 Cut 215 ; Sitaramayya, AIR 1951 M-61, 63 ante, per Mack J]. Statements made as soon after the incident as possible are far more trustworthy than later denials or embellishments [Allah Bakhsh v The Crown, 1952 Cr LJ 79 (FC); Public Prosecutor v K Jalayya, AIR 1954 Mad 303 : 1954 Cr LJ 374 : 1953 Mad WN 554]. The practice of taking incriminating statements from a person in custody in order to put a seal on it was, however deprecated [Jadub Das, 27 C 295, 299; Manu Chek, AIR 1938 P 290, 295]. The effect of recording a statement under section 164 is a question primarily relating to the appraisement of evidence and it cannot be said that the witnesses should necessarily be unreliable on the ground that their statements were recorded under section 164 [Gopishanker v State of Rajasthan, AIR 1967 Raj 159 : 1967 Cr LJ 922 : 1967 Raj LW 326 ]. The mere fact that the statement was previously recorded under section 164 will not be sufficient to disregard it. The Court, however, ought to receive it with caution and if there are other circumstances on record which lend support to the truth of the same it can be acted upon [Ramcharan v State of UP, AIR 1968 SC 1270 : 1968 Cr LJ 1473 (SC) (Re Gopisetti Chinna Venkata Subbaiah, AIR 1955 Cal 161 : 1955 Cr LJ 1152 : 1955 Andh LT (Cri) 91 : 1955 Andh WR 220; Parmanad, AIR 1940 N 340 approved); (Jadub Das, 27 C 295; Manu Chek, AIR 1938 P 290, disapproved); Badri v State of Rajasthan, AIR 1976 SC 560 : 1976 Cr LJ 496 : (1976) 1 SCC 442 (SC)]. It being preliminary to trial, statement may be recorded without calling the accused [Maratha, 7 Cr LJ 166]. Whether it is a “statement” or a “confession” the Magistrate must, before recording, be satisfied upon questioning that it is voluntarily made [Jahangiri, AIR 1935 L 230; See post clause (g)].

Statement of approver after pardon can be recorded like that of any other witness [Rambharose, AIR 1944 N 105, FB; Horilal, 41 Cr LJ 433; Hussaina, AIR 1933 L 868; Amar, AIR 1938 L 796] and it may be done on affirmation [Rambharose, supra]. Statement under section 164 is not evidence for the purpose of section 193, Indian Penal Code, 1860 [Purshottam, 45 B 834 FB; Boya, 1933 MWN 251 ].

Page 12 of 31 [s 164] Recording of confessions and statements.—

The memo, of identification by a Magistrate cannot be regarded as a record of evidence as it is not a statement by a witness in a judicial proceeding and does not attract the presumption under section 80, Indian Evidence Act [Ram Sanchi v State, AIR 1963 All 308 : 1963 (2) Cr LJ 1 : 1963 All 61 : 1963 All WR 42; approved in Sheo Raj v State, AIR 1964 All 290 FB : 1964 (2) Cr LJ 1 : 1963 All WR 680 : 1963 All LJ 1128 (Asharfi v State, AIR 1961 All 153 : 1961 (1) Cr LJ 340 : 1960 All LJ 585 : 1960 All WR 440, overruled)]. In State of UP v Singhara Singh, AIR 1964 SC 358 : 1964 (1) Cr LJ 263 (2) the Supreme Court observed that the observation in Asharfi’s case was not necessary for the decision of that case. [s 164.17] Statement under section 164 not amounting to confession.— If the accused chooses to make a statement other than a confession, there is nothing to prevent the Magistrate from recording it and it is admissible [Madan Garu, 24 Cr LJ 723 : 4 PLT 381 : Lalit, 49 C 167]. Once the investigation is started, any non-confessional statement by the accused is also required to be recorded under section 164 and if not recorded the Magistrate would not be competent to give oral evidence of such statement [Shiv Bahadur Singh v State of Vindhya Pradesh, AIR 1954 SC 322 : 1954 Cr LJ 910 (SC)]. When statements recorded though of a somewhat incriminating nature were self-exculpatory, they are admissible [Adbul Rahim, 41 Cr LJ 474 : AIR 1925 C 926; Md Baksh, AIR 1941 SC 129 ; Karu, AIR 1937 N 254]. Approving Abdul Rahim, Md Baksh, sp and Golam Md, infra, the Privy Council held that a statement under section 164 not amounting to confession can be used against the maker as an admission under sections 18–21, Evidence Act [Ghulam Hossain v King, (1950) 51 Cr LJ 1552 : 54 Cal WN 464, 467, (PC)]. A self-exculpatory statement by the accused but admitting presence at the scene is admissible against him as evidence of a fact relative to the prosecution, viz., that he was present at the dacoity and actually saw it taking place [Golam Md, 4 P 327 : 26 Cr LJ 878; Chintamani Das v State, AIR 1970 Ori 100 : 1970 Cr LJ 906 : (1970) 36 Cut LT 823].

Statement/representation of the accused recorded by the magistrate for the second time during course of extension of remand of accused does not fall under the category of confession or statement of accused under section 164, Code of Criminal Procedure, 1973. Kadiravan v State, 2006 Cr LJ 2803 (2006) (Mad). [s 164.18] Recording of Statement of Rape Victim; SC Guidelines.— (1) Upon receipt of information relating to the commission of offence of rape, the Investigating Officer shall make immediate steps to take the victim to any Metropolitan/preferably Judicial Magistrate for the purpose of recording her statement under section 164, Code of Criminal Procedure, 1973. A copy of the statement under section 164, Code of Criminal Procedure, 1973 should be handed over to the Investigating Officer immediately with a specific direction that the contents of such statement under section164, Code of Criminal Procedure, 1973. should not be disclosed to any person till charge sheet/report under section 173, Code of Criminal Procedure, 1973 is filed.

(2) The Investigating Officer shall as far as possible take the victim to the nearest an/preferably Lady Judicial Magistrate.

(3) The Investigating Officer shall record specifically the date and the time at which he learnt about the commission of the offence of rape and the date and time at which he took the victim to the Metropolitan/preferably lady judicial magistrate as aforesaid.

(4) If there is any delay exceeding 24 hours in taking the victim to the Magistrate, the Investigating Officer should record the reasons for the same in the case diary and hand over a copy of the same to the Magistrate.

(5) Section 164A, Code of Criminal Procedure, 1973 inserted by Act 25 of 2005 in the Code imposes an obligation on the part of Investigating Officer to get the victim of the rape immediately medically examined. A copy of the report of such medical examination should be immediately handed over to the Magistrate who records the statement of the victim under section 164, Code of Criminal Procedure, 1973 [State of Karnataka v Shivanna, (2014) 8 SCC 913 : 2014 (6) Scale 30 ]. [s 164.19] Administration of oath to accused before recording of confessional statement.—

Page 13 of 31 [s 164] Recording of confessions and statements.— The administration of oath itself would make a confessional statement totally inadmissible in evidence in view of Article 20(3) of the constitution and also in view of the provisions of section 281, Code of Criminal Procedure, 1973. Jayanti Bhattacharya v State of WB, 2006 Cr LJ 3414 (3422) (Cal) : 2006 (3) Cal HN 763.

Section 164 prohibits recording confession of accused on oath. [Babubhai Udesingh Parmar v State of Gujarat, AIR 2007 SC 420 : 2007 Cr LJ 786 (SC)].

The accused was charged with burying her illegitimate child alive. In his exhumation notes the Magistrate also recorded the confessional statement of the accused and it was held inadmissible [Bhargavi Amma Chellamma v Sate of Kerala, AIR 1964 Ker 241 : 1964 (2) Cr LJ 414 : 1964 Ker LT 127 ].

Though confessional statement of the accused can be recorded only by Judicial Magistrate, yet the same was recorded by Executive Magistrate and therefore that is not admissible in evidence [State of Haryana v Parmanand son of Rati Ram, 1995 Cr LJ 396 (P&H)]. [s 164.20] Evidence of witness recorded under section 164, CrPC.— The evidence of the witnesses recorded earlier under section 164, Code of Criminal Procedure, 1973 by the Magistrate by itself does not in any manner discredit the evidence [Ramesh Singh v State of AP, 2004 Cr LJ 3354 (3358) (SC) : AIR 2004 SC 4545 : 2004 (2) Crimes 396 : (2004) 11 SCC 305 ]. If statements of witness are recorded under section 164 by Magistrate that would not discredit his evidence specially when he is independent witness and no omission, contradiction or improvements were brought by defence counsel in his court statement [Navin Kumar Sav (Dr) v State, 2007 Cr LJ 2110 (MP) : 2007 (5) AIR Bom R771 (NOC)]. [s 164.21] Use of statement under section 164.— Statement recorded under section 164 can never be used as substantive evidence of truth of the facts but it may be used for contradiction or corroboration of the witness who made it (sections 145 and 157, Evidence Act) [State of Rajasthan v Kartar Singh, AIR 1970 SC 1305 : 1970 Cr LJ 1144 : (1970) 2 SCC 61 (SC); Ramkishan Singh v Harmit Singh, AIR 1972 SC 468 : 1972 Cr LJ 267 : (1972) 3 SCC 280 (SC); Dhanabal v State of TN, AIR 1980 SC 628 : 1980 Cr LJ 439 : (1980) 2 SCC 84 ; Bhuboni Sahu v The King, AIR 1949 PC 257 : (1949) 50 Cr LJ 872 : 53 Cal WN 690 : 76 IA 147; Brij Bhushan Singh v Emperor, AIR 1946 PC 38 : (1946) 47 Cr LJ 336 : 50 Cal WN 348 : 73 IA 1 : 48 Bom LR 288; Mamand v King-Emperor, AIR 1946 PC 45 : (1946) 47 Cr LJ 344 : 50 Cal WN 353 : 1946 (1) Mad LJ 211; State of Delhi v Shri Ram Lohia, AIR 1960 SC 490 : 1960 Cr LJ 679 ; Manarali, 37 Cal WN 1066; Manik, AIR 1942 C 36; Kanai Lal Dwary v State, AIR 1950 Cal 413 : (1950) 51 Cr LJ 1520 ; Sheik Pinju v State, AIR 1952 Cal 491 : 1952 Cr LJ 1027 ; Abdul Aziz v The Crown, AIR 1950 Lah 167 : (1950) 51 Cr LJ 1350 ; Harnam, AIR 1935 B 26; Nur Md, AIR 1944 SC 38 ; Bishun, 50 A 242; Velliah, 45 M 766; Mathura, 8 P 625; Dodo Bahadur, AIR 1942 SC 139 ; Birendra Chandra De v State, AIR 1957 Ass 168 : 1957 Cr LJ 1231 ; Masha, 69 Cal WN 764; Bisipati Podhan v State, AIR 1969 Ori 289 : 1969 Cr LJ 1517 : (1969) 35 Cut LT 362] but not for contradiction of other witnesses [Hariram, AIR 1926 L 122; Ramesh v State, 2009 (3) Mad LJ (Cri) 347 (Mad)]. A statement can be used to cross-examine the maker of it and the result may be to show that the evidence of the witness is false. But that does not establish that what he stated under section 164 is true [Brij Bhushan Singh v Emperor, AIR 1946 PC 38 : (1946) 47 Cr LJ 336 : 50 Cal WN 348, 352 : 48 Bom LR 288 : 73 IA 1 : 48 Punj LR 337 (PC); Niamat Singh v KE, AIR 1955 NUC 386 (All)].

The statement of a witness under section 164, Code of Criminal Procedure, 1973 is one, where the accused have hardly any occasion to cross-examine him and if it is to be treated as substantive piece of evidence, it should be only tendered before trial Court and then a witness should be produced by the prosecution for his cross-examination. In the instant case, when the witnesses have themselves did not support their version their statements earlier recorded under section 164, Code of Criminal Procedure, 1973 could not be available to the prosecution for their corroboration. It could, to the maximum, be used by the prosecution for their contradiction. It would be a fallacy of a legal approach to have reliance upon the statement of a witness recorded under section 164 and thereby to record conviction of the accused persons on that basis [Phool Chand v State of UP, 2004 Cr LJ 1904 : 2004 All LJ 649 : 2004 (14) All Ind Cas 237 (All); Ramanand Pandey v State, 2008 Cr LJ (NOC) 68 : 2007 (5) AIR Bom R 584 (Bom—DB)].

Page 14 of 31 [s 164] Recording of confessions and statements.— Where the statement of the prosecutrix is not recorded under section 164, the question of contradiction or corroboration does not arise. Even without a statement under section 164, the evidence of the prosecutrix was free from any embellishment and she had not deviated from her statement made before the investigating officer soon after the occurrence, which was treated as the FIR. As such, it had to be held that the absence of any statement under section 164 has not caused any prejudice to the accused and has not caused miscarriage of justice [Ramchit Rajbhar v State of WB, 1992 Cr LJ 372 Cal DB].

Statement under section 164 can be used to impeach the credit of a prosecution witness under section 155 of the Evidence Act, with the Court’s permission [Sekandar, AIR 1941 C 406; Abdul Aziz, supra]. If the Court finds that in view of his statement under section 164 the witness has been won over by the defence, his evidence must be entirely ignored [Mamand, supra]. It is open to the court to accept the evidence of a witness whose statement was recorded under section 164 but the salient rules of caution as laid down in Ramcharan v State of UP, AIR 1968 SC 1270 : 1968 Cr LJ 1473 (SC), must always be borne in mind for such witnesses feel tied to their previous statements given on oath and have but a theoretical freedom to depart from the earlier version [Balakram v State of UP, AIR 1974 SC 2165 : 1974 Cr LJ 1486 : (1975) 3 SCC 219 (SC); Somasikhar v State of Karnataka, 2004 (2) Crimes 366 (SC) : AIR 2005 SC 1510 : (2004) 11 SCC 334 ].

Statement not amounting to confession can be used as admission within sections 18–21, Evidence Act [Ghulam Hussain v The King, (1950) 51 Cr LJ 1552 : 54 Cal WN 464 (PC)]. Statements under section 164 are not inadmissible merely because the Magistrate recording has not been examined [Lalji, AIR 1926 P 11].

The omission to produce as prosecution witness a person whose statement recorded under section 164 could be used to corroborate or contradict him if he had appeared as a witness would entitle the accused to ask the Court to give him benefit of presumption under section 114(g), Evidence Act [Sawaldas v State of Bihar, AIR 1974 SC 778 : 1974 Cr LJ 664 : (1974) 4 SCC 193 (SC)].

In absence of reason on which ground the witness wants to file his statement application for such irrelevant witness is liable to be rejected [Jogendra Nahak v State of Orissa, 1999 Cr LJ 3051 (Ori)].

Confessional statement of accused recorded under section 164, Code of Criminal Procedure, 1973 by magistrate would be admissible in evidence [PD Khainar v State of Maharashtra, 2002(1) PCCR 94 (SC)].

The confessional statement of witness recorded by Judicial Magistrate under section 164, Code of Criminal Procedure, 1973 without an opportunity being given for cross-examination before relying upon such statement was held to be inadmissible [Mary Xavier v State, 2010 Cr LJ (NOC) 998 (Mad)].

Accused cannot be convicted in the basis of statement of eye-witnesses recorded under section 164 of Code [Guggillasantosh Reddy v State of AP, 2001 Cr LJ NOC 110 : 2001 (1) Andh LT (Cri) 76 (AP)].

Statement of witnesses recorded by magistrate under section 164 of Code of Criminal Procedure, 1973 is not a substantive piece of evidence [Bashapaka Laxmaiah v State of AP, 2001 Cr LJ 4066 : 2001 (2) Andh LT (Cri) 154 : 2001 (4) Cur Cr R 278 (AP)].

Where a witness during trial did not depose the name of his uncle as one of the assailants, though he named him in his statement recorded under section 164, he was held to be a witness of impeachable integrity [Gasib Singh v State of Bihar, 2004 (3) Crimes 74 (Pat)].

A statement of a witness recorded by a Magistrate under section 164, Code of Criminal Procedure, 1973 is a public document and it does not require any formal proof. It is not necessary to summon the Magistrate

Page 15 of 31 [s 164] Recording of confessions and statements.— recording the prior statement to prove the contents thereof [Guruvindappali Anna Rao v State of AP, 2003 Cr LJ 3253 (AP) : 2003 (3) Crimes 72 : 2003 (2) Andh LD (Cri) 60]. [s 164.22] Reliability of confession.— The investigation conducted by the IO was perfunctory in nature when the accused evidently made a confessional statement before him and others regarding abduction of the victim and his killing and burial. A confession recorded under section 164 by a Judicial Magistrate in the manner as required in the law would perhaps have a bearing to warrant conviction of the accused. The IO even in spite of making a confessional statement did not feel it necessary to make a prayer to the sub-divisional judicial magistrate for recording the confessional statement. [Danti Ram Reang v State of Tripura, 2010 Cr LJ 4499 (4505) : (2010) 4 GLT 538 (2011) 1 GLR 13 (Gau)]. [s 164.23] Statement not recorded under section 164.— Statements made by the accused to the Magistrate in verification proceedings are inadmissible if not recorded under section 164 [Jitendra, AIR 1937 C 99; Amiruddin, 45 C 557]. Statements of a witness not recorded in accordance with section 164 are not provable by a magistrate though they may be relevant under section 9, Evidence Act for purpose of identification of person or thing [see Deepchanad v State of Rajasthan, AIR 1961 (2) SC 1527 : 1961 Cr LJ 705 : 1962 (1) SCR 662 (SC)]. [s 164.24] Copy of statement or confession.— It was held that the accused under remand was not entitled to copy of statement before the inquiry commences [Muthia, 30 M 466], but when the case is on trial, copy should be granted before cross-examination in order that the defence may be posted with facts [Mathayyan, AIR 1945 M 85; see Ghulam Nabi, AIR 1929 L 429; Bashiruddin, 33 Cr LJ 752]. It is not correct that the accused cannot see the statement before the witness is examined-in-chief [Harichand, 32 Cr LJ 253]. Natural justice requires that defence pleader should be allowed to inspect the statements recorded [Brahmaya, AIR 1938 R 442]. It is a public document and the Court is bound to issue copies [Bashiruddin, AIR 1932 A 327; Bherumal, AIR 1937 SC 303 ]. It would be a public document under section 74, Indian Evidence Act, but the accused’s right to get copies before the filing of charge-sheet had been taken away by section 173 (4) [see now section 207(iv) under which copies are now furnished by the magistrate] [State of Madras v G Krishna, AIR 1961 Mad 92 FB : 1961 (1) Cr LJ 382 : 73 Mad LW 713 : 1961 (1) Mad LJ 65]. Failure to give copies of statements of witnesses under section 164 is denial of a valuable right as they cannot be effectively cross-examined. The principle of breach of section 162 applies with equal force to such a case and may vitiate the trial [Shankar Lal v State, AIR 1954 All 779 : 1954 Cr LJ 1705 ].

It is very satisfactory that the right to get copy free of cost has been recognised in section 207 (iv) under which the Magistrate shall furnish to the accused before the commencement of inquiry or trial free copy of FIR, confession, statement of witness under section 164 etc. [s 164.25] Power of Magistrate to record statement of person unsponsored by investigating agency.— Magistrate has no power under section 164, Code of Criminal Procedure, 1973 to record the statement of the person on his request even though he has not been sponsored by the investigating agency. Even for such witnesses provisions are available in law. The accused can site them as defence witnesses during trial or the Court can be requested to summon them under section 311 of the Code [Jogendra Nahak v State of Orissa, AIR 1999 SC 2565 : 1999 Cr LJ 3976 : (2000) 1 SCC 272 : 1999 (4) Crimes 12 ]. [s 164.26] In the course of an investigation.— The section is confined to confession recorded either (i) in the course of an investigation, or (ii) when the investigation has ceased, at any time afterwards but before the commencement of inquiry or trial [Barindra, 37 C 467, 496; Karam Ilahi v Emperor, AIR 1947 Lag 92 : (1946) 47 Cr LJ 772 : 48 Punj LR 382; Rishi v State of Bihar, AIR 1955 Pat 425 : 1955 Cr LJ 1377 ; State v Ram Avtar Chaudhry, AIR 1955 All 138 : 1955 Cr LJ 394 : 1955 All LJ 330 : ILR (1955) 2 All 97 ]. The investigation may be under chapter XII, Code of Criminal Procedure, 1973 or under any other law for the time being in force. An investigation is not concluded until a final report under section 173 is submitted by the police [Lal Khan v Emperor, AIR 1948 Lah 43 : (1947) 48 Cr LJ 977 ]. If no investigation is pending at all relating to any charge, the section does not apply [Sheo Pd, AIR 1935 O 416; Hari Kr, AIR 1935 O 477]. When a statement is recorded during an inquiry under section 202 the section does not apply [Satnarain, 10 Cal WN 51]. There is, however, no express prohibition of record of confession after the commencement of inquiry or trial and such a confession is not affected by the rules framed under section 164 [see Hemraj, supra].

Page 16 of 31 [s 164] Recording of confessions and statements.— An inquiry or trial might begin by the magistrate taking cognizance on a report under section 170 even though the investigation is still proceeding and final report under section 173 has not been filed. In such a case the magistrate can record the statement of the accused under section 313 without giving the warning under section 164 and such confession is not inadmissible [Lal Khan v Emperor, AIR 1948 Lah 43 : (1947) 48 Cr LJ 977 (Sullah, 29 Cr LJ 697 dissented from)]. Where the police took back the challan filed for committal of accused on the pretext of incompleteness to enable the Magistrate to record confession under section 164, it is illegal and unfair [Pahlwan, AIR 1930 L 445].

Statement recorded in enquiry by Magistrate instead of a police officer under Regulation 737 of Police Regulations is in the course of investigation [Dinanath, AIR 1940 N 186]. Statement recorded by Magistrate in a confidential enquiry by the CID relating to sanction under section 197 is not within section 164 [Jehangir, AIR 1927 B 501]; nor is a statement recorded for the purpose of extradition rules [Anandrao, AIR 1925 B 529]. [s 164.27] “Or under any other law for the time being in force”.— It means that section 164 is applicable to the record of all confessions and statements in the course of an investigation whether under the Code or any other law. [s 164.28] “Or at any time afterwards before...trial”.— The words must be given a wider meaning. Magistrate can record confession even after submission of police charge sheet provided magisterial enquiry or trial has not commenced [Rajaram v State, AIR 1966 All 192 FB : 1966 Cr LJ 386 : 1965 All WR 699 : 1965 All LJ 1110]. [s 164.29] Proviso to Sub-section (1).— Police officer having magisterial power cannot record confession. He can however record statement [see Khudiram, 9 CLJ 55; Hurribole, 1C 207; Bhima, 17B 485]. Tahsildar with magisterial powers can record [Gulabu, 25 A 260].

Section 164 statement as a part and parcel of the case diary of the investigation and even in the charge-sheet there is mention about the documents and there is a note in the charge-sheet itself which refers to the statement of the witnesses recorded by the Magistrate under section 164, Code of Criminal Procedure, 1973. In view of the alone facts, it is not possible to hold that the accused was deprived of the copies of section 164 statements, particularly when the accused had not made any grievance at the appropriate stage before the court below [Patiram v State of Maharashtra, 2003 Cr LJ 4718 : 2003 (1) Crimes 422 : 2003 All MR (Cri) 1296 (Bom)]. [s 164.30] Sub-section (2)— (i) Right to consult lawyer.— Recording of confession being a proceeding under section 303 an accused has a right to consult his lawyer, and hence the Magistrate before confession should explain to him this, as also to a poor economically and socially backward accused that he has right to have free legal aid under section 304 [Kuthu Goala v State of Assam, 1981 Cr LJ 424 (Gau); (Nandini Satpathy v PL Dani, AIR 1978 SC 1025 : 1978 Cr LJ 968 : (1978) 2 SCC 424 (SC) followed]. Calcutta High Court has taken a different view [Abed Ali v State, (1988) Cr LJ 354 : 1987 (2) Crimes 785 : (1988) 92 Cal WN 28 : 1988 Cal CrLR 15 (Cal)]. (ii) Warning or caution before recording confession.— Sub-section (2) mandates the Magistrate not to record any confession unless upon questioning the accused he has reason to believe that it is being made voluntatrily [Shankaria v State of Rajasthan, AIR 1978 SC 1248 : 1978 Cr LJ 1251 : (1978) 3 SCC 435 (SC); See also Kehar Singh v State (Delhi Administration), AIR 1988 SC 1883 : 1989 Cr LJ 1 : (1988) 3 SCC 609 : 1988 (3) Crimes (SC); Sanki Chiba v State of Arunanchal Pradesh, 2008 Cr LJ 1734 (Gau—DB)]. The exact form of the warning is not material but what is essential is that the Magistrate should explain and bring home to the mind of the accused that (i) he is before a Magistrate and that he is a free agent no longer in the custody of police and not bound to make any statement at all unless he is disposed to do so of his own free will, (ii) He must further tell him that whatever he will say may be used against him in evidence [Jamuna, AIR 1947 P 305; Rex v Moti, AIR 1953 All 792 : 1953 Cr LJ 1829 : 1953 All LJ 507; Bansa, 26 Cr LJ 1458; Prag, 32 Cr LJ 97; Kheman, 6 L 58; Rao, AIR 1925 L 367; Kommoju, AIR 1940 P 163; Punia, AIR 1946 P 169; Rangu Munda v State of Assam, 2003 Cr LJ (NOC) 284 (Gau) : 2003 (3) Gau LR 466]. Record of a confession by an officer without disclosing that he is a Magistrate makes it inadmissible [Sanatan Badchat v State, AIR 1953 Ori 149 : 1953 Cr LJ 1008 : 18 Cut LT 345 : ILR (1952) Cut 620; see however Moti,

Page 17 of 31 [s 164] Recording of confessions and statements.— supra]. “to record a confession after taking part in an inquest and investigation.” Even if he records such a confession, the failure to record that the accused was told that he was in the presence of a Magistrate and was warned detracts from the voluntariness of the confession. The oral evidence of the Magistrate to make up the deficiency is not a sufficient substitute [Re Antappa, AIR 1959 Mys 250 : 1959 Cr LJ 1349 : 1959 Mad LJ (Cri) 919]. To tell that he should think over the matter and state what really happened as otherwise the statement would be used against him does not satisfy the rule in sub-section (2) [Perumal, AIR 1940 M 562].

Rule 85 of Madras Criminal Rules of Practice requires that the accused should be warned that it is not intended to take him as an approver and failure to do so renders the confession inadmissible [Govinda, AIR 1937 M 321; Re Medithats Venkata Reddi, AIR 1951 Mad 331 : 1951 Cr LJ 867 : 1950 (2) Mad LJ 298 : 63 Mad LW 839; see Re Ramaswami, AIR 1952 Mad 411 : (1952) Cr LJ 853 : 1951 (2) Mad LJ 830 : 1951 Mad WN 857; however Re Ramaswami, AIR 1952 Mad 411 : (1952) 53 Cr LJ 853 : 1951 (2) Mad LJ 853 : 1951 Mad WN 857]. The rule should be specially followed where one of the several accused wants to confess [Re Sainambu, AIR 1953 Mad 564 : 1953 Cr LJ 1069 : 1953 (1) Mad LJ 467 : ILR (1953) Mad 1170].

Irrespective of warnings on previous occasions, it must again be given on the day confession is actually recorded [Re Karunthambi, AIR 1950 Mad 579 : 1950 Cr LJ 1047 : 63 Mad LW 449 : 1950 (1) Mad LJ 659; Kommoju, supra] and if recording is continued on another day, fresh warning is necessary [Panchkari, 29 Cal WN 300; Punia, supra; Dhula v State, AIR 1957 Raj 141 : 1957 Cr LJ 545 : 1957 Raj LW 223; see however Re Kakana Ramana Reddy, AIR 1953 Mad 74 : 1953 Cr LJ 264 : 1952 (2) Mad LJ 501 : ILR (1953) Mad 417].

Record should show what warning was given [Maksud, AIR 1921 P 337; Bahawala, AIR 1925 L 432; Hansabai, 56 B 542] and it is not enough to state “after due warning” [Madhu, AIR 1921 P 306]. It is not required that the warning should be in the form of a question and answer. The Magistrate has to “explain” [Re Palani Moopan, AIR 1955 Mad 495 : 1955 Cr LJ 1197 : 1955 (2) Mad LJ 199 : 1955 Mad WN 301]. Where warning has actually been given but the record does not contain any note of it, the Magistrate may be examined on the point [Arajuddin, 40 Cal WN 872; Bhola Gope, AIR 1942 P 283; Drummond, 34 Cr LJ 712].

In this connection, reference may be made to section 29, Evidence Act which says that if a confession is otherwise relevant i.e., shown to be voluntary under sections 24–28, ibid.) it does not become irrelevant merely because he was not warned. Failure to warn does not by itself necessarily render a confession inadmissible if it is proved to have been made voluntarily [Dagdu v State of Maharashtra, AIR 1977 SC 1579 : 1977 Cr LJ 1206 : (1977) 3 SCC 68 (SC); see Vellamoonji, 55 M 711; Lal Singh, AIR 1938 A 625; Nanua, 1946 A 145; Khalli, AIR 1951 Ori 78]. On a question of admissibility section 29, ibid., prevails over section 164 [Vellamoonji, supra; Lal Singh, supra; Khitali, AIR 1933 O 404; Salu, AIR 1933 SC 166; Ramnath, 93 IC (B) 690; Bala Majhi v State of Orissa, AIR 1951 Ori 168 : (1952) 53 Cr LJ 1743 : ILR (1951) Cut 65 FB; Rangappa Hanamappa v State, AIR 1954 Bom 285 : 1954 Cr LJ 887 : 56 Bom LR 115 : ILR (1954) Bom 484]. Though there is this infirmity that the prerequisites of a valid confession are wanting and it has to be found out how far it can be acted upon [Re Karunthambi, AIR 1950 Mad 579 : 1950 Cr LJ 1047 : 63 Mad LW 449 : 1950 (1) Mad LJ 659]. The question whether an accused was warned is relevant for the judge to consider whether the confession is voluntary [Voisin, 1918 (1) KB 531]. Although section 29 of the Evidence Act may be invoked in proper cases the magistrate must not fail to conform to the sound rule of warning in section 164(2). Warning, or no warning, the point of substance is whether the magistrate did take all possible steps or precaution to ascertain whether the confession was being made voluntarily. [see post item (g)]. [s 164.31] Sub-section (3).— While convicting the accused the statement recorded under section 164, Code of Criminal Procedure, 1973 does not have any better legal status than the one recorded under section 161(3), Code of Criminal Procedure, 1973. At the most, if the deponent whose statement is recorded under section 164, Code of Criminal Procedure, 1973 turns hostile, he could be prosecuted for perjury but on the strength of such statement no conviction can be placed [T Diwakara v State of Karnataka, 2006 Cr LJ 4813 (4814) (Kant) : ILR 2006 KAR 4632 ]. [s 164.32] Sub-section (4)—Record of confession—Prerequisites and mode of recording judicial confession— (a) General directions.— Recording of confession is a very solemn act and the Magistrate must see that the requirements of section 164

Page 18 of 31 [s 164] Recording of confessions and statements.— are fully satisfied [Sarwan Singh v State of Punjab, AIR 1957 SC 637 : 1957 Cr LJ 1014 : 1957 Punj 1602 (SC); Munshi Soren v State of Assam, 1981 Cr LJ 1408 (Gau)]. Certificate/memorandum at the foot of confession as one required under section 164(4) is mandatory. Non-compliance with the requirement renders the confession as inadmissible [Murugan v State, 2006 Cr LJ 1085 (Mad) : 2005 (3) Crimes 535].

Section 164, Code of Criminal Procedure, 1973 mandates that the judicial Magistrate shall make a memorandum at the foot of the record of proceedings that he did not explain to the accused that he was not bound to make a confession and that if he did so, any such confession would be used as evidence against him. Further, the judicial Magistrate should also record that he, in fact, believed that such a confession was voluntarily made and that it was taken in his presence and hearing. He should also scrupulously record at the foot of the proceedings that he, in fact, read over to the accused and he having admitted the confession recorded him as correct [Ramesh v State, 2010 Cr LJ 203 (207) (Mad) : 2010 (1) Mad LJ (Cri) 797].

A confession has to be recorded by strict observance of the formalities prescribed in sections 164 and 281. The requirements of these sections as expounded in various decisions may be summarised before dealing with them individually:—

(1) The accused should be told that he is before a Magistrate independent of the police and given assurance of protection against any apprehended inducement, pressure, threat or oppression if he does not make a statement. Mere fact that the record does not show that he told the accused that he was a Magistrate does not lead to the inference that the confession was not voluntary [Paramhansa Jadab v State, AIR 1964 Ori 144 : 1964 (1) Cr LJ 680 : (1963) 5 Ori JD 372]. He must then be warned that (i) he is not bound to confess or make any statement at all in spite of what he may have been told by the police or others and that (ii) if he does so, whatever he will say may be used against him at his trial. This duty is not performed by merely repeating a stereotyped formula or the words in sub-section (2); but the position should be made clear to him in the plainest manner possible in order to remove police or other extraneous influence, if any, or any false impression that may have been caused by fear, promise, torture, hope of lenient treatment etc. The exact form of the warning is not material, but it must be brought home by all possible means that he is a free agent and may or may not make any statement without any prejudice to his cause. Instead of simply noting “After due warning” etc., the terms in which the caution is given should be recorded. (2) Instead of recording straightway after the warning, it is better to give sufficient time to collect the prisoner’s mind and to reflect. If produced from police custody his fear of being returned to that custody should be dispelled by assuring him that he would be sent to the judicial lock-up after his statement; and before recording it he should be sent to the judicial lock-up for a sufficient length of time for reflection. (3) The police or other persons who may have any influence or hold over the accused should be ordered out so that a free atmosphere may be created and all fear, suspicion or influence may be allayed. (4) Voluntariness being the foundation of a Magistrate’s jurisdiction to record a confession, it is imperative that the Magistrate should before recording ascertain upon intelligent questioning whether the statement is spontaneous and voluntary, or some influence or false impression is at work which induces him to make the statement. The mandatory requirement has been repeatedly adverted to in numerous decisions. No set form of questions is possible as the form and extent of the questions must vary with the facts of each case. The duty is not at all satisfied by merely asking whether the statement is made voluntarily. That has to be found out. And there must be a real endeavour to find out by appropriate and searching questions whether he confesses voluntarily or some influence or motive is at work. Questions like these : Why the confession is being made? How did the question of confession first arise? To whom and under what circumstances, was the decision first expressed? etc are particularly important. Enquiries should be made about the length of police custody and the treatment accorded as they have a material bearing on the question of voluntariness. In several cases it has been held that the questions put and the answers given must all be recorded to enable the High Court or the Sessions Court to determine how far is the statement voluntarily made. The questions must, not however, be of an inquisitorial nature, nor should questions be asked to pin a person down to certain statements, nor should there by any leading question. If the Magistrate is not satisfied in all conscience that the confession is voluntary, he must not record any confession.

Page 19 of 31 [s 164] Recording of confessions and statements.— (5) Confession, should ordinarily be recorded in open Court unless there are special reasons for recording at the Magistrate’s residence or in jail or to any other place and, if possible, piece meal recording should be avoided. When confession is not recorded in Court, reasons should be noted. (6) The certificate in sub-section (4) is very important. It is only after hearing the accused, questioning him in various ways and observing his demeanour that the Magistrate is in a position to append the responsible certificate of voluntariness. Support for the above directions will be found in the citations below. In Gurubaru Praja v The King, AIR 1949 Ori 67 : (1950) 51 Cr LJ 72 : ILR (1949) (1) Cut 207 , seven directions have been laid down for observance before recording confession, and in a later case of the same Court it has been observed that while every endeavour should be made to conform to them, they are not mandatory [Bala Majhi v State of Orissa, AIR 1951 Ori 168 FB : 1952 Cr LJ 1743 : ILR (1951) Cut 65 ]. Duty of Court in recording confession stated in extenso [Kuthu Goala v State of Assam, 1981 Cr LJ 424 (Gau)]. The bare certificate in the prescribed form with nothing more would not satisfy the requirements of section 164 [Shanti v The State, AIR 1978 Ori 19 : 1977 Cr LJ 2053 : 1977 Cut LR (Cri) 176 FB]. The rules made by the various High Courts in circular orders should be followed and the questions prescribed should be asked with punctiliousness and care, but a contravention or technical breach would not by itself render the record bad if otherwise the confession is voluntary [see Panchkari, 29 Cal WN 300; Re Manicka Nagendra Bagavathar Prisoner, AIR 1950 Mad 484 : (1950) 51 Cr LJ 1137 : 1950 (1) Mad LJ 337; Re Ramaswami, AIR 1952 Mad 853 : 1952 Cr LJ 853 : 1951 (2) Mad LJ 630 : 1951 Mad WN 857; Pub Pros, 33 M 413; Dasi Villaya, AIR 1938 M 490; Kamsala, AIR 1937 M 755; Rangappa Hanamappa v State, AIR 1954 Bom 285 : 1954 Cr LJ 887 : 56 Bom LR 115 : ILR (1954) Bom 484 ; Munshi Soren v State of Assam, 1981 Cr LJ 1408 (Gau)]; so also in the case of rules by Government, which have not the force of law [Nibar, AIR 1933 O 299; Sahajram, AIR 1933 O 313]. The Supreme Court recommended the adoption of the circulars issued by the High Courts of Allahabad, Bombay and Madras [Sarwan Singh v State of Punjab, AIR 1957 SC 637 : 1957 Cr LJ 1014 (SC)]. The failure to comply with section 164(2) or with High Court circulars does not render the confession inadmissible, but a strict and faithful compliance with them guarantees in a large measure that the confession is voluntary [Dagdu v State of Maharashtra, AIR 1977 SC 1579 : 1977 Cr LJ 1206 : (1977) 3 SCC 68 ]. Administering oath to the accused before recording confession is illegal and it has no evidentiary value [Phillips v State of Karnataka, 1980 Cr LJ 171 : ILR (1979) 21 Kant 2170 : 1980 Mad LJ (Cri) 129 (Kant); Akanman Bora v State of Assam, 1988 Cr LJ 573 : 1987 (3) Crimes 168 : 1987 (2) Gau LR 90 (DB) (Gauh)]. Section 164 prohibits recording confession of accused on oath [Babubhai Udesingh Parmar v State of Gujarat, AIR 2007 SC 420 : 2007 Cr LJ 786 (SC)]. An accused himself can appear before Magistrate for recording his confession in course of an investigation [Mahabir Singh v State of Haryana, AIR 2001 SC 2503 : (2001) 7 SCC 148 : 2001 (3) Crimes 366 : 2001 Cr LJ 3945 (SC)]. Failure of Magistrate to inform accused that he is not bound to make such confession and if made might be used against him makes such confession out of consideration [Mahabir Singh v State of Haryana, AIR 2001 SC 2503 : (2001) 7 SCC 148 : 2001 (3) Crimes 366 : 2001 Cr LJ 3945 (SC)]. Statement of accused though recorded in presence of Magistrate but not in manner as provided under section 164 of Code not admissible in evidence [Tandra Rani v State of AP, 2001 Cr LJ 4048 : 2001 (2) Andh LT (Cri) 71 (AP)]. Judicial confession should not be recorded in a routine or mechanical manner and safeguards provided for accused be complied with in the letter and spirit [Babubhai Udesingh Parmar v State of Gujarat, AIR 2007 SC 420 : 2007 Cr LJ 786 : (2007) 1 Mad LJ (Cr) 747 (FB)].

Page 20 of 31 [s 164] Recording of confessions and statements.— Where confessions statement is inconsistent with prosecution case and there is no material to establish the guilt of the accused, conviction cannot be based on confession [Babubhai Udesingh Parmar v State of Gujarat, AIR 2007 SC 420 : 2007 Cr LJ 786 (SC) : (2007) 1 Mad LJ (Cr) 747 (SC)].

(b) Warning or caution.— See sub-section (2) above. (c) Time for reflection and jail custody.— Before confessions are recorded the Magistrate who records the confessions should satisfy himself that the accused person’s mind has been free from fear or other complexes developed during police custody and generally 24 hours at least should be allowed to lapse before a confession is recorded [Babu Singh v State of Punjab, (1963) 3 SCR 749 : 1964 (1) Cr LJ 566, 571 (SC); Bheru Singh v State of Rajasthan, (1994) 2 SCC 467 : 1994 SCC (Cri) 555 : (1994) 1 Crimes 630 (SC); Sanki Chiba v State of Arunanchal Pradesh, 2008 Cr LJ 1734 (Gau)]. After warning sufficient time should be given to reflect [See Aher Raja Khima v State of Saurashtra, AIR 1956 SC 217, 222 : 1955 (2) SCR 1285 : 1956 Cr LJ 426; Puntia, AIR 1946 P 169; Kamsala, AIR 1937 M 755; Chavadapa, AIR 1945 B 292; Jagmal v Emperor, AIR 1948 All 211 : (1948) 49 Cr LJ 243 : 1948 All LJ 106 : 1948 All WR 68; State v Fateh Bahadur, AIR 1958 All 1 : 1958 Cr LJ 1] and the prisoner should be left alone for some time to collect his mind [Jehangir, AIR 1935 L 230]. Half an hour was considered insufficient. Generally it would be reasonable to insist upon at least 24 hours time [Sarwan Singh v State of Punjab, AIR 1957 SC 637 : 1957 Cr LJ 1014 (SC)]. But 24 hours is not to be taken as an absolute rule in all cases [Davasia Yohannan v State, AIR 1958 Ker 207 : 1958 Cr LJ 1021 : 1958 Ker LT 273 : 1958 Mad LJ (Cri) 481; Mohd Ishaq Ahmad Din v State, AIR 1959 Punj 110 : 1959 Cr LJ 362 : 61 Punj LR 48]. There is no provision in section 164 or elsewhere that there should be an interval of 24 hours. How much time for reflection should be allowed depends on the circumstances of each case. In this case where the accused was in judicial custody for 38 to 40 hours preceding the confession, 15 minutes interval was held sufficient [Shankaria, AIR 1978 SC 1248 : 1978 Cr LJ 1251 : (1978) 3 SCC 435 (SC) [Abdul Rajak Murtaja Dafedar v State of Maharashtra, AIR 1970 SC 283 : 1970 Cr LJ 373 : (1969) 2 SCC 234 (SC) relied on and Sarwan Singh v State of Punjab, AIR 1957 SC 637 : 1957 Cr LJ 1014 (SC) distinguished]. Where there is reason to suspect that the accused had been coerced to make a confession, even longer period may have to be given [State v Ram Chandra Bhoi, AIR 1965 Ori 175 : 1965 (2) Cr LJ 520]. After warning the accused was sent to jail custody for reflection and confession was recorded on the next day [Mendai Singh v State, AIR 1952 All 486 : 1952 Cr LJ 883 : 1951 All LJ 444 : 1951 All WR 30]. It is of the utmost importance that the mind of the accused should be completely free from any possible police influence by sending him to jail custody for reflection [Sarwan Singh, supra] and to put him out of the reach of the investigating officer [Aher Raja, supra].

Two confessions of accused recorded one after the other in quick succession. magistrate should allow time to accused to make the statement [Babubhai Udesingh Parmar v State of Gujarat, AIR 2007 SC 420 : 2007 Cr LJ 786 (SC) : (2007) 1 Mad LJ (Cr) 747 (SC)].

In the instant case, the accused was produced before the Magistrate (PW-18) on 2 February 2000 at about 11 am PW-18 directed that the accused be produced on the next day, ie, 3 February 2000 to give enough time to the accused to reflect before making any confession. Accordingly, the accused was produced again on 3 February 2000 at 11 am before PW-18. Then the Magistrate kept the accused in his chamber under the observation of the Court Peon and gave further time for reflection. Eventually at 2 pm on that day, the confession of the accused was recorded. PW-18 explained to the accused that he was not a police officer but a magistrate. He also cautioned the accused that the accused was not bound to make a confession and if he made any confession it might be used in evidence against him. PW-18 also tried to ascertain from the accused as to why the accused was making a confession. In reply he was told by the accused “as I have committed the offence”. Held, the contents of section 164, Code of Criminal Procedure, 1973 were complied with in essence by the magistrate [State of Assam v Anupam Das, 2008 Cr LJ 1276 (1285) (Gau) : 2008 (2) AIR Jhar R (NOC) 532].

Page 21 of 31 [s 164] Recording of confessions and statements.— When a girl is in the clutches of an accused of an offence under sections 368 and 366, Indian Penal Code, 1860, there is always a probability that the accused had offered any inducement, threat or promise to her to keep her with him. When such girls are recovered the probability is there, that she is still under the influence of such inducement, threat or promise. Therefore, it is not proper at all to record the statement of such victim unless such influence is vanished. It may ordinarily, take 15 days to two months, depending upon the age of the victim and the period during which she was kept in abduction, for vanishing such effect or influence. The statement of such a girl, therefore, should not be recorded unless it is ensured that the influence of such inducement, threat or promise has vanished. Fifteen days time is the minimum reasonable time to get such influence vanished. The statement recorded within such fifteen days from the date of recovery cannot be said to be free from inducement, threat or promise extended by the accused. Hence, such statement cannot be made the basis for the custody of the prosecutrix. For these 15 days her custody may be restored to her parents from whose custody, she was kidnapped or abducted [Qutbun Nisha v State of UP, 2008 Cr LJ 3233 (All) : 2008 (4) All LJ 424]. (d) Enquiry about injury.— If there are marks of injury on his person, the accused should be asked how he came by them [Sarwan Singh v State of Punjab, AIR 1957 SC 637, 643 : 1957 Cr LJ 1014 (SC) :see Gurdit, AIR 1939 L 66; Barhma v KingEmperor, AIR 1947 Oudh 95 : (1947) 48 Cr LJ 27, post; Bala Majhi v State of Orissa, AIR 1951 Ori 168 FB : 1952 Cr LJ 1743 : ILR (1951) Cut 65). See also section 54.

It is the duty of the Magistrate to take notice of injuries, if any, and to make positive statement that the accused did not complain of bodily pain due to police assault [State of Assam v Henry Westmullar Roberts, 1983 Cr LJ (NOC) 146 (Gau)]. (e) Police-custody and its length.— The fact and length of time in police custody have a material bearing on the question of voluntariness [Jogiban, 13 Cal WN 861; Panchkari, 29 Cal WN 300; Bhagwandas, AIR 1941 B 50; Gurubaru Praja v The King, AIR 1949 Ori 67 : (1950) 51 Cr LJ 72 : ILR (1949) 1 Cut 207; Abdul Sattar, AIR 1936 L 278; Mobarak, 23 Cal WN 886; Lalit, 38 C 599, SB; Nathu v State of UP, AIR 1956 SC 56 : 1956 Cr LJ 152; Sarwan Singh v State of Punjab, AIR 1957 SC 637, 643 : 1957 Cr LJ 1014; Abdul Razak Murtaza Dafadar v State of Maharashtra, AIR 1970 SC 283 : 1970 Cr LJ 373 : (1969) 2 SCC 234 (SC)] and it should be asked first how long has the accused been in the custody of the police [Narayan, 25 B 543; Amir Khan, 7 Cal WN 457; Madar, 1888 AWN 59; Abdul Ghani, AIR 1931 L 763]. The Magistrate should enquire from what custody the accused came and to what custody was he sent back [Punia, AIR 1946 P 169]. Where the confessing accused was kept in police custody in defiance of rules, the prosecution must explain [Abdul Subhan, AIR 1940 A 46]. Delay in producing prisoner willing to confess affects its value [Panchkari, 29 Cal WN 300; Savlimiya, AIR 1944 B 338; Abdul Subhan, supra]. The Magistrate should record when did he first desire to confess [Savlimiya, supra].

It has, however, been held that an accused cannot be said to have been compelled to be a witness against himself [under Article 20(3), Constitution] simply because he made a statement while in police custody without any thing more. Though the fact of police custody in conjunction with other circumstances disclosed in evidence in the particular case would be a relevant consideration in an enquiry whether or not the accused had been compelled to make the impugned statement. The mere questioning of an accused by a police officer resulting in a voluntary statement, which may ultimately turn out to be incriminatory, is not compulsion [State of Bombay v Kathi Kalu Oghad, AIR 1961 SC 1808 : 1961 (2) Cr LJ 856 : 1962 (3) SCR 10 (SC)].

The accused was produced from the long custody of the police. According to records 15 to 30 minutes time was given to the accused for reflection before the actual confessions were recorded. Held, sufficient cooling off time had not been given to the accused. In the background they had been in police custody over a long period of time, and, therefore, confession could not be taken into consideration for recording the conviction of the accused [State of Rajasthan v Ajit Singh, 2008 Cr LJ 364 (369) (SC) : (2008) 1 SCC 601 : 2007 AIR SCW 6465 : 2007 (4) Crimes 357 : (2008) 1 SCC (Cri) 287].

Before recording confession, the accused should be removed from police custody and sent to jail custody [Bhagwan Din, AIR 1934 O 151; Abdul Sattar, AIR 1936 L 278] and after confession he must invariably be sent

Page 22 of 31 [s 164] Recording of confessions and statements.— to the judicial lock-up and on no account be returned to police custody [Surat, AIR 13 L 292; Jangli, AIR 1934 O 19; Jahana, AIR 1937 L 98; Narinjan, AIR 1936 L 357; Abdul Sattar, supra; Bhagwan Din, supra]. Before an accused is asked to make his confession, the Magistrates ordinarily allow a period for reflection and remand him to jail custody to put him out of the reach of the investigating officer [Aher Raja Khima v State of Saurashtra, AIR 1956 SC 217 : 1956 Cr LJ 426 : 1955 (2) SCR 1285; see Sarwan Singh v State of Punjab, AIR 1957 SC 637 : 1957 Cr LJ 1014 (SC)].

As a further safeguard to ensure that confession is voluntary, new sub-section (3) prohibits a remand to police custody of a person expressing unwillingness to make confession. This does not of course mean or imply that remand has to be made if the accused wants to confess (vide report of joint Com). (f) Ordering out police.— The Magistrate should remove the handcuffs of the prisoner and order out the police when recording confession [Daulat 2 LLJ 653; Dikson, AIR 1942 P 90; Haidar, AIR 1937 L 409; Bhukhin v Emperor, AIR 1948 Nag 344 : (1948) 49 Cr LJ 561 : ILR (1948) Nag 147 : 1948 Nag LJ 489]. Presence of the police in the verandah when confession is being recorded does not free the mind of the accused from police influence [Sarwan Singh, supra]. A confession taken in jail with a police officer in the next room and subsequently retracted cannot be acted upon without substantial corroboration [Shk Sohali, 11 CLJ 272]. Where all the police officials were kept outside the courtroom of the Magistrate where the confession was recorded, the confession was held voluntarily [State of MP v Bhagwan Singh, 2002 Cr LJ 3169 (MP) : 2002 (3) MPLJ 67; and substantial piece of evidence State of Maharashtra v Anil, 2006 Cr LJ (NOC) 288 Bom]. Police officer need not be excluded when it is likely to render the statements of witnesses incomplete because only he knew what information they are able to give [Pullamma, 1932 MWN 625]. Confession recorded in the presence of the district Magistrate and another Magistrate interested in the case was rejected as involuntary [Jogiban, 13 Cal WN 861]. When a Magistrate who accompanied the police and performed many of the functions of the police, recorded a confession at the suggestion of the police, the accused could not have been free from police influence [Emperor v BB Leyatt, (1947) 48 Cr LJ 794 : 231 IA 408 (Lah)]. (g) Questioning to determine voluntariness.— Before a confessional statement can be acted upon it must be shown to be voluntary and free from police influence [Devendra Pd Tiwari v State of UP, AIR 1978 SC 1544 : 1978 Cr LJ 1614 : (1978) 4 SCC 474]. Voluntariness is the basis of a Magistrate’s jurisdiction to record confession. Before recording it is mandatory to ascertain upon questioning whether the statement about to be made is spontaneous and voluntary. He cannot and must not record until after applying his judicial mind he is fully satisfied about it. This is imperative and is a matter of substance [Farid, 2 L 325; Ranbir, AIR 1932 L 204 : Prag, AIR 1930 O 449; Punia, AIR 1946 P 169; Neki, AIR 1924 L 624; Sardar Miya, AIR 1937 N 257; Baldeo Musahar v Emperor, AIR 1947 Pat 281 : (1947) 48 Cr LJ 86 : ILR 25 Pat 391; Panchkari, 29 Cal WN 300; Azimuddin, AIR 1927 C 97; Bhimappa Saibanna Talwar v Emperor, AIR 1945 Bom 484 : (1946) 47 Cr LJ 252 : 47 Bom LR 648; Suker Dosadh, AIR 1941 P 303; Ram Babu, AIR 1938 P 60; Ramsidh, AIR 1938 P 352 : Re Karunthambi, AIR 1950 Mad 579 : 1950 Cr LJ 1047 : 63 Mad LW 449 : 1950 (1) Mad LJ 659; Bala Majhi v State of Orissa, AIR 1951 Ori 168 FB : 1952 Cr LJ 1743 : ILR (1951) Cut 65; The Province of Bihar v Surendra Prasad Ojha, AIR 1951 Pat 86 : (1951) 52 Cr LJ 771; Re Shivabasappa Rayappa Channalli, AIR 1959 Mys 47 : 1959 Cr LJ 337 : 1958 Mad LJ (Cri) 903]. The whole object of putting questions is to obtain an assurance of the fact that the confession is not caused by any inducement, threat or promise [Munshi Soren v State of Assam, 1981 Cr LJ 1408 (Gau)]. Where the record does not show that there was questioning to find out voluntariness, there is no jurisdiction to record confession [Kommoju, 19 P 341; Bahawala, 6 L 183; Punia, AIR 1946 P 169; Ondi Boro v Emperor, AIR 1948 Cal 193 : (1948) 49 Cr LJ 294]. It is highly improper to read the alleged statements of the accused to the police before questioning him [Jogiban, 13 Cal WN 861; Dewan Kahar, AIR 1923 P 13].

Before a confessional statement made under section 164 can be acted upon, it must be shown to be voluntary. In order to come to a conclusion that the confession is voluntarily made, it is the duty of the Magistrate to record the circumstances under which the confession is made, showing in whose custody the prisoner was, andhow far he was a free agent. A confession made by an accused after he is in police custody for some time cannot be rejected on that sole ground, but it must be always viewed with suspicion. Hence, the Magistrate, therefore, has a duty to be careful to ascertain as to how long such a person has been under the influence of the police.

Where there was no time lag between the production of the accused from the police custody before the

Page 23 of 31 [s 164] Recording of confessions and statements.— Magistrate and the recording of the confessional statement by the Magistrate, the confession could not be said to be voluntary and consequently could not be acted upon. It is the duty of the trying Judge to find out whether there is at least a general corroboration in some material particulars to a retracted confession. As there was no corroboration from any independent evidence, either oral or circumstantial of the confession, it could not be utilised for convicting the accused [Ganesh Prasad Singh v State of Orissa, 1987 Cr LJ 1345 : (1987) 63 Cut LT 215 : 1987 CrLC 199 (Ori)].

The Magistrate shall hear the confession first without making any record, and shall then put questions to ascertain whether it is voluntary, and then if he has reason to believe that it is so, he may record the confession. The questioning before confession is a matter of substance and not of mere form [Ranbir, AIR 1932 L 204 : 33 Cr LJ 242].

The record must show that questions were put to determine voluntariness [Sardar Miya, AIR 1937 N 257; Bhola Gope, AIR 1942 P 283; Gobardhan Rajhanshi v State of Jharkand, 2002 Cr LJ 3301 (3304) : AIR 2002 Jhar 778 : 2002 (3) East CrC 157]. Questions put to ascertain voluntariness and answers must be recorded [Ramsidh, AIR 1938 P 352; Baldeo Musahar v Emperor, AIR 1947 Pat 281 : (1947) 48 Cr LJ 86 : ILR 25 pat 391; Bala Majhi v State of Orissa, AIR 1951 Ori 168 FB : 1952 Cr LJ 1743 : ILR (1951) Cut 65; see however, Ranbir, AIR 1932 L 204; Suka Misra v State, AIR 1951 Ori 71] was without them it is impossible to tell how far a confession is voluntarily made and how far it is extracted by questioning [Hasan Ali, AIR 1926 A 22; Prag, AIR 1930 O 449 (approved in Md Ali, AIR 1934 All 81, 84 FB). Failure to record question and answer to determine voluntariness may detract from the value of the confession, but does not make it inadmissible [Rex v Moti, AIR 1953 All 792 : 1953 Cr LJ 1829 : 1953 All LJ 507; Shanti v State, AIR 1978 Ori 19 FB : 1977 Cr LJ 2053 : ILR 1977 Cut 719]. As long as there is substantial compliance, evidence aliunde is available to cover the lacunae and the recording Magistrate may be examined in support of the compliance of the formalities [Shanti, supra].

No set form of questions is prescribed, nor can there be any hard and fast rule as the form and extent of questions which depend largely on the facts of each case. The High Courts have pointed out repeatedly that the duty is not satisfied by repeating some set formula or by merely asking whether the confession is being made voluntarily. There must be a real endeavour to find out by appropriate questions whether he confesses voluntarily [Panchkari, 29 Cal WN 300; Sambhu, 54 A 380; Thibu, AIR 1923 P 256; Bhukhin v Emperor, AIR 1948 Nag 344 : (1948) 49 Cr LJ 561 : ILR (1948) Nag 147 : 1948 Nag LJ 489; Dubal, 21 P 153]. It is not enough to use such stock phrases as : “I am a Magistrate; if you want to make any statement of your own accord you may do so; Do not make any statement which you have been tutored by others to make [Ragho, 18 Cr LJ 721; Jogiban, 13 Cal WN 861]. Thus, when the Magistrate only asked if he was willing to make a confession and told that if he made a confession, it would be used against him and no questions were asked to determine voluntariness [Gorib, 30 Cal WN 450], or when it is simply asked “Do you want to say anything ?” [Madhu, AIR 1921 P 306] it is no compliance with the law. Failure to question about voluntariness is fatal although the Magistrate stated that he was satisfied that it was voluntarily made [Khusi, AIR 1924 L 481; Jehana, AIR 1923 L 345; Lachi Ram, AIR 1923 L 330; Ramsarup, 33 PLR 917].

Telling a person that he should state voluntarily and questioning him as to whether he is making it voluntarily are two very different things [Farid, AIR 1922 L 227; Sardar, AIR 1937 N 257]. Observation and questioning are not the same thing. It is by questions that the Magistrate must reach his conclusion [Ranbir, AIR 1932 L 204].

Voluntariness must be ascertained at the beginning of the statement and not at the end by putting one comprehensive question [Appa, 1 Bom LR 357; Kandhai, 15 Cr LJ 633; Baldeo Musahar v Emperor, AIR 1947 Pat 281 : (1947) 48 Cr LJ 86 : ILR 25 Pat 391]. The questions must be designed to ascertain and satisfy himself that confession was being made voluntarily [Kommoju, AIR 1940 P 163; Dikson, AIR 1942 P 90; Majhi, 104 IC 247]. Particular attention should be paid to such questions as: Why is the confession being made? or Has any body said that something is to be gained by a confession? or How the confession came to be made? or How the question of confession first arose? or When was the desire to confess first expressed and to whom? etc [Ragho, 18 Cr LJ 721; Patey, AIR 1931 A 609; Bhimappa, 47 Cr LJ 252; Bhagwandas, AIR 1941 B 50; Savlimiya, AIR 1944 B 338; Bala Majhi v State of Orissa, AIR 1951 Ori 168 FB : 1952 Cr LJ 1743 : ILR (1951) Cut 65 : Nasir, AIR 1933 A 31; Deveeramma v State, AIR 1960 Mys 199 : 1960 Cr LJ 1108 : 1960 Mad LJ (Cri) 565]. The motive for making the confession should be asked [Kommoju, supra; Ragho, supra; Dikson, AIR

Page 24 of 31 [s 164] Recording of confessions and statements.— 1942 P 90; Dewan Kahar, AIR 1923 P 13; see however Panchkari, 29 Cal WN 300; Suka Misra v State, AIR 1951 Ori 71; Ratna Munda v State, AIR 1951 Ori 245 : 16 Cut LT 227 : (1951) 52 Cr LJ 685 (Ori)].

The Magistrate should assure the accused of protection against apprehended torture or pressure in case he declines to make a statement [Bala Majhi v State of Orissa, AIR 1951 Ori 168 FB : 1952 Cr LJ 1743 : ILR (1951) Cut 65]. Where torture by the police and bodily injury are alleged, the Magistrate should take immediate steps to have the accused examined by a doctor [Gurdit, AIR 1939 L 66; see Barhma v King-Emperor, AIR 1947 Oudh 95 : (1947) 48 Cr LJ 27 : 228 IC 21 and also Sarwan Singh v State of Punjab, AIR 1957 SC 637 : 1957 Cr LJ 1014 (SC), supra]. See section 54 in the connection.

Confession recorded in the presence of the district Magistrate who was interested in the case and another Magistrate who also interrogated was rejected as involuntary [Jogiban, 13 Cal WN 861]. No police officer or other person should be allowed to put or suggest any question [Indarsain, 21 CR LJ 418; Jogiban, supra; Ramanand, 1885 AWN 221]. Recording a confession in the atmosphere of a room where there are other persons is not proper [Bhimappa Saibanna Talwar v Emperor, AIR 1945 Bom 484 : (1946) 47 Cr LJ 252 : 47 Bom LR 648].

As to the burden of proof regarding the voluntary nature of confession, see Sarkar’s Evidence. 13th Edn, p 250 et seq. (h) How to record.— Sub-section (4) directs that a confession shall be recorded in the manner provided in section 281, ie, “every question put to him and every answer given by him shall be recorded in full.”

If a confession is recorded, it must be done in strict accordance with the rules in sections 164 and 281 otherwise it would be inadmissible. The Magistrate took rough notes of a confession which were destroyed and later on dictated to a typist a memorandum from those notes. Held that the scheme is inadmissible and oral evidence of the magistrate to prove the confession is also inadmissible [Nazir Ahmad, AIR 1936 PC 253 : 40 Cal WN 1221 : 63 IA 372; see Abdul Rahim v Emperor, AIR 1945 Lah 105 : (1946) 47 Cr LJ 4 : ILR (1945) Lah 290 FB]. It has been observed that the true scope and applicability of Nazir Ahmed’s case may have to be considered in a proper case [Re Natesan, AIR 1960 Mad 443, 445 : 1960 Cr LJ 1340]. On this the Supreme Court commented that “the actual decision in that case does not affect the question before us and as to the above observation, it is enough to say that we are unable to accept it as correct” [State of UP v Singhara Singh, AIR 1964 SC 358 : 1964 (1) Cr LJ 263 (2) (Nazir Ahmad, supra, relied on)]. The presumption under section 80, Evidence Act arises only where a confession is thus recorded. Recording in printed forms is very undesirable and the Magistrate should express in his own words why he considers the confession voluntary [Bhimappa Saibanna v Emperor, AIR 1945 Bom 484 : (1946) 47 Bom LJ 252 : 47 Bom LR 648].

The Magistrate is bound to record every question asked and answer given. This is very important, otherwise it may be impossible to tell how far the confession is voluntarily deposed and how far it is extracted by questioning [Hasan Ali, AIR 1926 A 22; Prag, AIR 1930 O 449; Bala Maghi v State of Orissa, AIR 1951 Ori 168 FB : 1952 Cr LJ 1743 : ILR (1951) Cut 65]. Reasons for believing the confession to be voluntary should be recorded [Bhimappa, supra; Ramsidh, AIR 1938 P 352;—Contra Re Kakana Ramana Reddy, AIR 1953 Mad 74 : 1953 Cr LJ 264 : 1952 (2) Mad LJ 501 : ILR (1953) Mad 417]. The provision that questions and answers shall be recorded in full applies only to the body of the confession [Abdul Ghani, AIR 1931 L 763]. Record need not disclose all the questions put and answers received [King Emperor v Sheo Shankar Singh, AIR 1954 Pat 109 : 1954 Cr LJ 171 : ILR 32 Pat 243]. The mere absence of questions put in the record does not render it inadmissible [Sagambur, 12 CLR 120; Nawab, AIR 1927 L 285; Ranbir, AIR 1932 L 204; Suka Misra v State, AIR 1951 Ori 71; Re Ramaswami Reddiar, AIR1953 Mad 138 : 1953 Cr LJ 315 : 1952 (2) Mad LJ 814 : ILR (1953) Mad 924—Contra: Baldeo, AIR 1947 P 281; Bala Majhi v State of Orissa, AIR 1951 Ori 168 FB : 1952 Cr LJ 1743 : ILR (1951) Cut 65]. Where the accused states in a narrative form without any question being put it is not possible to record questions and answers [Rex v Moti, AIR 1953 All 792 : 1953 Cr LJ 1829 : 1953 All LJ 507]. Record of confession in a narrative form and not in the form of questions and answers would not affect admissibility if the accused has not been prejudiced by the error [Munshi Shk, 8 C 616; Fekoo, 14 C 539; Khudiram, 9 CLJ 55; Deo Dat, 45 A 166]. Putting a series of questions and recording answers should be

Page 25 of 31 [s 164] Recording of confessions and statements.— deprecated. The accused should be allowed to narrate his story without interference [Gehna, AIR 1932 L 180]. Notes taken by Magistrate while the accused pointed out places of incidents are not a record of the confession and cannot be admitted [Baghel, AIR 1929 L 794; see Adulla, AIR 1933 L 716 FB].

Where several accused confess, one should not be allowed to hear the statement of another [Bhagwan Din, AIR 1934 O 151]. Recording of confession piece-meal and sending the accused to police-custody in the interval is not proper [Panchkari, 29 Cal WN 300; Abdul Sattar, AIR 1936 LJ 278; Nilmadhab, 27 Cr LJ 957].

Where the statements of time out of four eye-witnesses were recorded under this section but the prosecution did not choose to elicit any question in respect of their earlier statements given to magistrate under this section, the statement was held not reliable [Vijayan v State, 2008 Cr LJ (NOC) 477 (Mad) : 2008 (1) Mad LJ (Cri) 193].

Magistrate gave the certificate that confession was recorded by him. Magistrate also certified that it was voluntary but he failed to record the question whether there was any pressure on her to confess. Defect, it was seen, stood cured as Magistrate had asked that question to her and no body else was present in room while it was being recorded. It was held that statement was recorded according to procedure under section 164 read with section 281 and was admissible in evidence [Ram Singh v Sonia, 2007 Cr LJ 1642 (SC) : AIR 2007 SC 1218 : 2007 (2) Crimes 1 : (2007) 3 SCC 1 : (2007) 2 SCC (Cri) 1]. (i) Signature.— The record must be signed by the accused and also the Magistrate. Signature (or finger impression) indicates authenticity of the statement and is not an admission of correctness [Khudirm, 9 CLJ 55]. Omission to take signature is not necessarily fatal and may be cured by the evidence of the Magistrate under section 463 [Raghu, 23 B 221; Ba Yin, 31 Cr LJ 297; Arajaddin, 40 Cal WN 872; Samla, AIR 1941 N 17; see however Bhimappa Saibanna v Emperor, AIR 1945 Bom 484 : (1946) 47 Cr LJ 252 : 47 Bom LR 648]. When illiterate, finger impression should be taken [Sadananda, 32 C 550]. What is recorded must of course be read or interpreted, if necessary. (See section 281).

The confession should be recorded in manner provided by section 281 and shall be signed by the person making the confession. The Magistrate shall then make the memorandum at the foot of such confession. The Magistrate cannot merely sign a printed instruction supplied to him. This will be violative of this sub-section [Badri, 1973 Cr LJ 1478 (All); Sankhi Chiba v State of Arunanchal Pradesh, 2008 Cr LJ 1734 (Gau)].

The language used in sub-section (4) of section 164 and sub-section (5) of section 281, Code of Criminal Procedure, 1973 indicates that it is mandatory on the part of the Magistrate recording confession to obtain signature of the person whose confession he has recorded. The omission in that behalf cannot be cured by examining the Magistrate under section 463, Code of Criminal Procedure, 1973. The Magistrate when examined touching the confession he has recorded can only say that he has recorded the confession, but by such examination the omission to obtain his signature cannot be supplied. The provision that the Magistrate, after recording confession, should obtain the signature of the accused thereon, is a statutory provision and has been specially provided for, for safeguarding the interest of the accused and therefore, it is mandatory [Abdul Razak Shaikh v State of Maharashtra, 1988 Cr LJ 382 : 1987 Mah LJ 863 : (1987) 89 Bom LR 408 : 1987 (3) Bom CR 467 (Bom)].

A confession shall still be valid if due to any reason signature of the accused is omitted at the end of confessional statement; it being a curable matter videsection 463, Code of Criminal Procedure, 1973, such omission does not vitiate the value of the confession. [State through Superintendent of Police CBI/SIT v Nalini, AIR 1999 SC 2640 : 1999 Cr LJ 3124 : (1999) 5 SCC 253 : 1999 (2) Crimes 59 (SC)]. (j) Language.— Ordinarily, the statement is to be recorded in the language in which the accused is examined, and if that is not practicable, in the language of the Court. Omission to record in the language used by the accused may be overlooked if no prejudice has been caused thereby [seeNawab, AIR 1927 L 285; Deo Datt, 45 A 166; Nanak, AIR 1932 L 73; Kommoju, 19 P 30]. See Sarkar’s Evidence, 13th Edn, p278.

Page 26 of 31 [s 164] Recording of confessions and statements.— (k) Place and time.— Confession should be recorded in open Court and during court hours unless there are exceptional reasons to the contrary [Jahana, AIR 1937 L 98; Amar, AIR 1942 L 746; Emperor v BB Leyatt, (1947) 48 Cr LJ 794 : 231 IC 408 (Lah); Hemraj v State of Ajmer, AIR 1954 SC 462 : 1954 SCR 1133 : 1954 Cr LJ 1313; Ram Chandra v State of UP, AIR 1957 SC 381 : 1957 Cr LJ 559]. The Calcutta and Madras High Courts Rules are also to the same effect [Panchkari, 29 Cal WN 300, 310–311; Azimaddy, 31 Cal WN 410; Re Karunthambi, AIR 1950 Mad 579 : (1950) 51 Cr LJ 1047 : 63 Mad LW 449 : 1950 Mad WN 293]. It is highly undesirable to produce the accused for recording confession after Court hours [Re Shivabasappa Rayappa Channalli, AIR 1959 Mys 47 : 1959 Cr LJ 337 : ILR (1958) Mys 35 : 1958 Mad LJ (Cri) 780]; but a confession recorded after Court hours for want of time is not necessarily bad [Deveeramma v State, AIR 1960 Mys 199 : 1960 Cr LJ 1108 : 1960 Mad LJ (Cri) 565]. There is however no provision in the Code that it should not be recorded in open Court or that it should not be recorded on a holiday [Khanum, AIR 1930 L 171; Nilmadhab, AIR 1926 P 279; Mg Tha, 37 Cr LJ 280] and it may sometimes be necessary to record in the Magistrate’s house [Khalli, 16 Cut LT 180; Ghulam, Md, AIR 1934 L 675] and in such exceptional cases reasons should be recorded. Recording on a Sunday is a defect of form [Karunthambi, supra]. Unless for exceptional reasons, it is improper to record confession in jail [Ram Chandra v State of UP, AIR 1957 SC 381 : 1957 Cr LJ 559; Hemraj v State of Ajmer, AIR 1954 SC 462 : 1954 Cr LJ 1313] and if so recorded, reason should be noted [Khanum, AIR 1930 A 171]. It is not prudent to record confession within Thana and at night [Ranbir, AIR 1932 L 204; Jahana, AIR 1937 L 98]. Though recording of confession at a late hour in the night is improper [Pramatha, 21 Cr LJ 266], that itself does not render it involuntary [Abdul Salim, 49 C 573]. (l) Memorandum or certificate.— The law does peremptorily require that after recording the confession the magistrate must append at the foot of the record a certificate as to its voluntariness. The reason is that it is only after hearing the confession and observing the demeanour that the Magistrate is in the best position to append the requisite certificate. If the Magistrate does not certify in clear, categorical terms, nor testifies orally his satisfaction or belief as to voluntariness, the defect would be fatal to the admissibility of the confession. In this case the Magistrate used the word “hope” instead of “believe” and the confession was held not voluntary [Chandran v State of TN, AIR 1978 SC 1574 : 1978 Cr LJ 1693 : (1978) 4 SCC 90 (SC)]. A general statement that all precautions were taken is too vague [Partap, 6 L 415]. The record must contain internal evidence to show that warning was given; questions were put to ascertain voluntariness etc. [see Bhola, AIR 1941 P 285]. A confession without a memorandum is bad in law [Shivaya, 1 B 219; Daji, 6 B 288; Partap, 6 L 415; Radhe Halwai, 7 Cal WN 220; Bhairab, 2 Cal WN 702; see Ramasarup, 33 PLR 917; Ram Singh, AIR 1943 O 269; Jagmal v Emperor, AIR 1948 All 211 : (1948) 49 Cr LJ 243 : 1948 All LJ 106 : 1948 All WR 68; see however Annamalai, 1932 MWN 714]. As to how far omission to append certificate affects the admissibility of the confession, see next heading.

If the certificate does not show that warning was given it causes prejudice to the accused [Hansabai, 56 B 542]. Though not required by law, it is advisable to record in the memorandum what steps were taken to ascertain voluntariness [Umar Din, 2 L 129]. Certificate not being in proper form does not necessarily mean that any threat was given or that evidence is less believable. [Ram Charan v State of UP, AIR 1968 SC 1270 : 1968 Cr LJ 1473 (SC)]. In the absence of any contrary evidence the certificate raises a presumption that precautions prescribed were duly taken [Majhi, AIR 1927 L 682; Pratap, AIR 1925 L 605]. It is desirable that the memo should be in the hand of the Magistrate, but it is not essential [Tukaram, 57 B 336, FB; Salu, AIR 1933 SC 166; Chavadappa, AIR 1945 B 292]. If before the certificate is appended the accused retracts and says that the statement was made at the instance of the police, there is no confession [Arjan, AIR 1930 L 257]. [s 164.33] Proceedings at the residence.— The Magistrate should not record statements under section 164 at his residence [Babu Ahmed Khan v State of Rajasthan, 2000 Cr LJ 444 (Raj)]. [s 164.34] Defects or irregularities in confession and section 463.— There are a large number of cases on the question how far defects or irregularities in the record of confession are curable by section 463 and some of them are conflicting. One view is that a strict compliance with the provisions of sections 164 and 281 is imperative to make a confession admissible and it is only defects of form and not of substance that is curable by the oral evidence of the Magistrate under section 463 [see Bhairab, 2 Cal WN 702; Jainarayan, 17 C 862; Amiruddin, 45 C 557; Viram, 9 M 224; Farid, 2 L 325; Allahabad, 33 PLR 25 : Partap, 6 L 415; Ramai, AIR 1925 P 191; Prage, AIR 1930 O 449; Ranbir, AIR 1932 L 204; Sardar Miya, AIR 1937 N 257; Jograj, AIR 1930 L 534; Abdul Ghani, AIR 1931 L 763; Annamalai, 1932 MWN 714 ]. The

Page 27 of 31 [s 164] Recording of confessions and statements.— other view is that section 463 lets in oral evidence of the Magistrate in case of all omissions or infractions of section 164 or section 281 [Visram, 21 B 495; Raghu, 23 B 221; Md. Ali, 56 A 302, FB; Abdullah, 14 L 290, FB; Bhakshan, 16 L 912; Bala Udmi, AIR 1934 L 18; Tangedupalle, 45 M 230]. In this state of thing, the question arose before the judicial committee, but as without pleading section 463 to cover the gross irregularities committed it was conceded that there was failure to comply with section 164, and the confession was sought to be admitted under the Evidence Act as admission, no opinion was expressed on the scope of section 463. But it was generally laid down that section 463 has no application where the Magistrate disregarded the provisions of sections 164, 281 and neither acted nor purported to act under those sections [Nazir Ahmad, 63 IA 372 : AIR 1936 PC 253 : 40 Cal WN 1221] and when doing so the Judicial Committee approved the reasoning in Bhairab, 2 Cal WN 702, supra, in the first group as “lucid and cogent”. In that case, Banerji J, held that section 463 applies only when a confession is duly made, i.e., made in accordance with law, but in recording it the provisions have not been fully complied with, or in other words, when the defect in recording is one not of substance but of form only, e.g. when there was omission to state in the certificate that the statement was taken in his hearing though it was so taken, or when the Magistrate has omitted to sign through mere inadvertence (ibid, P 714). Since the Judicial Committee accorded its approval to Bhariab, Viran, supra, and similar cases in the first group in preference to the view in the other group, the latter view appears to have been impliedly negative. Later cases show that section 463 is to be invoked to cure defects of form only and not of substance [see Maroti, AIR 1940 N 230; Md Din, AIR 1938 L 200; Kommoju, AIR 1940 P 163; Ram Babu, AIR 1938 P 60; Punja, AIR 1940 P 169; Baliram, AIR 1939 N 295; Kartar, AIR 1938 L 556; Bala Majhi v State of Orissa, AIR 1951 Ori 168 FB : 1952 Cr LJ 1743 : ILR (1951) Cut 65 ; Basanta, AIR 1957 Or 33 ]. Where there is substantial compliance with the requirements of section 164(2), reliance can be placed on the provisions of sections 29 and 80 of Indian Evidence Act and any non-compliance with the provisions of section 164 may be regularised by application of section 463 (essential principles culled out on discussion of many cases) [Shanti v State, AIR 1978 Or 19 FB : 1977 Cr LJ 2053 : ILR 1977 Cut 719 ]. But defect of substance (e.g. where necessary questions to ascertain voluntariness were not put at all) cannot be cured by section 463 [Baldeo Muashar v Emperor, AIR 1947 Pat 281 : (1947) 48 Cr LJ 86 : ILR 25 Pat 391; Sardar, AIR 1937 N 257; Ram Babu, AIR 1938 P 60; see also Bakhat Bano v The Crown, AIR 1949 Lah 235 : (1950) 51 Cr LJ 126 ; Neharoo, AIR 1937 N 220; Re Karunthambi, AIR 1950 Mad 579 : 1950 Cr LJ 1047 : 63 Mad LW 449 : 1950 Mad LW 293 ; Ram Singh, AIR 1943 O 289; Emperor v BB Leyatt, (1947) 48 Cr LJ 794 : 231 IC 408 (Lah); Sharif Jio, AIR 1944 SC 113 ; Balkrishna Murlidhar Hadap v Emperor, AIR 1948 Nag 245 : (1948) 49 Cr LJ 331 : 1947 Nag LJ 310 ; Jagmal v Emperor, AIR 1948 All 211 : (1948) 49 Cr LJ 243 : 1948 All LJ 106 : 1948 All WR 68]. the case of Nazir Ahmad, supra was followed by the SC in Shiv Bahadur Singh v State of Vindhya Pradesh, AIR 1954 SC 322 : 1954 Cr LJ 910 (SC); Deepchand v State of Rajasthan, AIR 1961 SC 1527 : 1961 Cr LJ 705 (SC) and State of UP v Singhara Singh, AIR 1964 SC 358 : 1964 (1) Cr LJ 263 (2); see section 463 which has given effect to the view in Singhara, supra. When the Magistrate has not even purported to act under section 164, section 463 cannot be invoked [Rangappa Hanamappa v State, AIR 1954 Bom 285 : 1954 Cr LJ 887 : 56 Bom LR 115 : ILR (1954) Bom 484 ]. See Sarkar’s Evidence, 13th Edn, pp279–282].

The reasonable view, therefore, appears to be that—

(1) A confession made in the course of investigation, if recorded, can be recorded only by observance of the formalities of prescribed in sections 164 and 281. (2) It can be proved only by that record. (3) If all the provisions of sections 164 and 281 have been actually complied with (e.g., warning has been given, questions have been put to ascertain voluntariness, record has been read over etc.), but through omission or inadvertence or haste one or other of such facts have not been mentioned in the writing, the defect is curable by taking oral evidence if no prejudice has been caused. In other words defects, of form only are curable but not of substance. (4) Where the requirements prescribed have not been observed at all, the confession is not admissible and cannot be cured under section 463. [s 164.35] Probative force of confession.—

Page 28 of 31 [s 164] Recording of confessions and statements.— Opinions are not agreed as to the judicial value of a confession. Theoretically, a voluntary confession is a very satisfactory kind of proof as a person is not likely to make an admission so prejudicial to his interest. But words may be misunderstood, or a confession may spring from the delusions of a morbid mind or overstrung nerves. Persons have been found to confess a crime in order to save a dear relation from the extreme punishment. Confession should therefore be viewed with distrust and the greatest caution exercised in placing reliance on them. (See Sarkar’s Evidence, 13th Edn, pp 247–249). Like admission, Confession must be taken as a whole although it may contain statements favourable to the accused. The Courts may disregard any statement in it which they disbelieve. (See Sarkar’s Evidence, 13th Edn, pp 282–284).

A statement under section 164, Code of Criminal Procedure, 1973 when not corroborated by the witness during his/her examination at the trial would be of no value [Koppadv China Anandan@ China Asirvadem v State, (2007) 1 Mad LJ (Cr) 328 (Mad)]. [s 164.36] Retracted confession.— Confessions are made only to be retracted in the vast majority of cases. The admissibility or value of a retracted confession belongs to the subject of Evidence and the reader is referred to Sarkar’s Evidence, 13th Edn, pp 266–272. The use of retracted confession does not contravene Article 20(3) of the Constitution [Kalawati v State of HP, AIR 1953 SC 131 : 1953 SCR 546 : 1953 Cr LJ 668 ]. Some rules may be briefly stated here:

(1) As regards admissibility there is no difference between a retracted and unretracted confession. Both are equally admissible in law [Gour, 32 Cal WN 1004; Gangaram, 62 IC 545; Kodur, AIR 1937 AP 758 ]. (2) A confession is not to be regarded as involuntary or unlawfully induced merely because it has been retracted [Basvanta, 25 B 168; Ibrahim, AIR 1937 L 208; Abdul Gafoor, AIR 1945 N 145; Purnanda, AIR 1939 C 65]. The accused should give sufficient reasons as to how or why he made it [Raj Bahadur, AIR 1927 O 17; Ram Singh, AIR 1943 O 269] and the Court will carefully consider all the circumstances [Basvanta, supra; Partap, 6 L 415; Abdul Gafoor, supra; Biseswar, 26 Cal WN 1010]. Where the confession was retracted after lapse of several months when the prosecution evidence was closed and during examination under section 313, it was held to be voluntary [Shankaria v State of Rajasthan, AIR 1978 SC 1248 : 1978 Cr LJ 1251 : (1978) 3 SCC 435 (SC)].

(3) As against the maker a retracted confession may be the basis of a legal conviction if believed to be true and voluntary [Ram Ch, AIR 1965 SC 349 ; Kutab, 57 C 488; Manohar Singh v Emperor, AIR 1946 All 15 : (1946) 47 Cr LJ 311 : 1946 All LJ 77 : ILR (1946) All 111 ; Bhagwandas, 1941 Bom 27 : AIR 1941 B 50; Arunachala, 55 M 717; Sukes Dosadh, AIR 1941 P 303; Sher, AIR 1933 L 338; Hukma v State of Rajasthan, 1976 Cr LJ 1480 : 1976 Raj LW 150 : 1976 WLN 118 (Raj)]; but as a rule of practice and prudence it is not safe to act upon it without independent corroboration [Pyarelal Bhargva v State of Rajasthan, AIR 1963 SC 1094 : 1963 (2) Cr LJ 178 (SC); Bhabananda, 57 CLJ 213; Biseswar, 26 Cal WN 1016; Bhukhin, AIR 1948 N 344; Dikson, AIR 1942 P 90; Hosnabai, 56 B; Sambhu, 54 A 350 : AIR 1932 L 557; Puran v State of Punjab, AIR 1953 SC 459 : 1953 Cr LJ 1925 ; Ravinder Singh v State of Maharashtra, AIR 2002 SC 2241 : 2002 Cr LJ 2957 : 2002 (2) Crimes 380 : (2002) 9 SCC 55 ; Muthuswami v State of Madras, AIR 1954 SC 4 : 1954 Cr LJ 236 ; Sarwan Singh v State of Punjab, AIR 1957 SC 637 : 1957 Cr LJ 1014 (SC); Kodur, AIR 1957 AP 758 ; Hukma, supra.]. To base a conviction on retracted confession it is enough that there is broad corroboration in conformity with the general trend of corroboration [Permanand Pegu v State of Assam, 2004 Cr LJ 4197 (4203) (SC) : AIR 2004 SC 4197 : 2004 SCC (Cri) 2081 : 2004 (3) Crimes 337 ]. It is well settled that a confession, if voluntarily and truthfully made, is an efficacious proof of guilt, but for convicting the accused primarily on the basis of his confession the Court must apply a double test : (1) Whether the confession was perfectly voluntary? and (2) If so, whether it is true and trustworthy? Procedure of test indicated [Shankaria v State of Rajasthan, AIR 1978 SC 1248 : 1978 Cr LJ 1251 : (1978) 3 SCC 435

Page 29 of 31 [s 164] Recording of confessions and statements.— (SC)]. It is neither a flexible rule of law, nor practice, nor prudence that in no circumstances the conviction can be made without corroboration for a Court may in a particular case act upon it where the confession besides being true and voluntary there is circumstantial evidence which is explicable to no other hypothesis except the guilt of the accused [Hukma v State of Rajasthan, 1976 Cr LJ 480 : 1976 Raj LW 150 : 1976 WLN (Raj) 118 (Raj)]. (4) As against a co-accused, although a retracted confession may be “taken into consideration” under section 30 of Evidence Act, it is well-established that its value is practically nil and that it cannot form the basis of a conviction without substantial and independent corroboration both as to the crime and the criminal [Kasimuddin, 39 Cal WN 27; Haripada, 49 Cal WN 719, Yasin, 28 C 689; Baranmala, AIR 1934 P 586; Ghulam, AIR 1942 L 271; Nasir, AIR 1933 A 31; Mangru, AIR 1938 P 108; Bhagwandas, 1941 Bom 27; Kamsala, AIR 1937 M 755]. As to retracted confession, see Sarkar’s Evidence, 13th Edn, pp 266–272.

In a Calcutta case the accused expressed his willingness to make a confession The Magistrate cautioned him and gave sufficient time for reflection. Preliminary questions before recording the confession were adequate. Confession was recorded in chamber of the Magistrate, in his own handwriting. Except the Magistrate after satisfaction that the accused had made the confession voluntarily, recorded statement to that effect and signed it. No complaint of the accused to any Magistrate was made of any threat at any time. Confession was voluntary and materially true. Retraction of the confession in course of trial being belated, was immaterial [Durga Ruhi Das v State, 1986 Cr LJ 1620 : 1986 (2) Crimes 441 (Cal)].

In the instant case there was custody of the accused with the Police immediately preceding the making of confession and it is sufficient to stamp the confession as involuntarily and hence reliable. A judicial confession not given voluntarily is unreliable more so when such a confession is retracted [Bhagwan Singh v State of MP, AIR 2003 SC 1088 : 2003 SCC (Cri) 712 : 2003 Cr LJ 1262 : 2003 (2) Crimes 82 ].

If a retraction to a confessional statement is to be made it should be at the earliest possible opportunity and not at a highly belated stage, such as when the trial is about to be completed. A belated retraction loses its effectiveness due to delay. On the fact of the present case the contention of Amicus Curie that in view of the retraction of the confessional statement the accused cannot be found guilty cannot be accepted [Ram Singh v State of Assam, 2011 Cr LJ 1952 (1954) : 2011 2 GLT 196 (Gau)].

It is a rule of prudence, which has now almost sanctified as a rule of law that a conviction ought not to be based on retracted judicial confession [Maharaj Deen v State, 1996 Cr LJ 506 : 1996 All LJ 281 (All)].

Even a retracted confession can form basis of conviction, but as a rule of prudence, the Supreme Court insisted that such a confession is required to be corroborated [State of Assam v Anupam Das, 2008 Cr LJ 1276 (128687) (Gau) : 2008 (2) AIR Jar R (NOC) 532].

In the instant case, the Magistrate took all the steps to remove fear of accused as well observing formalities envisaged on section 164 of Code of Criminal Procedure, 1973. There was nothing to indicate involuntariness of statement. Medical and other evidence corroborated the statement. It was held that confession though retracted was admissible in evidence [Bhen Singh v State of Rajasthan, AIR 1995 SC 1436 ].

The two witnesses in their respective statements under section 164, Code of Criminal Procedure, 1973 had affirmed that the three accused persons had brought a girl in the late evening hours on the date of the occurrence to their house and all the three accused had committed rape on the girl and later she was taken by all the three miscreants away from the house and dumped on the burning coal. However since the witnesses retracted from their previous statement, the prosecution could not avail any assistance from their earlier statements recorded under section 164, Code of Criminal Procedure, 1973 [Sahjad Ansari v State of Jharkhand, 2007 Cr LJ 3086 (3090) (Jhar) : 2007 (2) JLJR 621 ].

Page 30 of 31 [s 164] Recording of confessions and statements.— [s 164.37] Use of confession against a co-accused.— The use of a confession, against a co-accused is governed by section 30, Evidence Act. [See Sarkar’s Evidence, 13th, Ed, pp 343–350). It is technically no “evidence” but can only be “taken into consideration” against the co-accused, i.e., it can lend assurance to the other evidence [Barindra, 14 Cal WN 1114 : 37 C 467]. In other words it can be used only in support of other evidence and cannot be made the basis of a conviction [Bhuboni Sahu v The King, AIR 1949 PC 257 : (1949) 50 Cr LJ 872 : 53 Cal WN 609 : 1949 (2) Mad LJ 194 : 76 IA 147; Haricharan Kurmi v State of Bihar, AIR 1964 SC 1184 : 1964 (2) Cr LJ 344 (SC)]. Cases may arise where the judge is not prepared to act on the other evidence even though, if believed, it would be sufficient to sustain a conviction. In such cases the confession may be called in aid and used to lend assurance to the other evidence [Kashmira Singh v State of MP, AIR 1952 SC 159 : 1952 SCR 526 : 1952 Cr LJ 839 (SC)].

Therefore, the co-accused’s confession can be used only to support other evidence, i.e., to corroborate other evidence; not that there may be a conviction if the co-accused’s confession is corroborated by other evidence; that is incorrect law. The conviction must be based on the other evidence, the confession can be used only to satisfy that the other evidence is true [Gunadhar Das v State, AIR 1952 Cal 618 : 1952 Cr LJ 1343 ; see Sarkar’s Evidence, 13th Edn, pp 354–356]. [s 164.38] Sub-section (5)—Record of statement.— Statements are to be recorded under sections 274–279 according to the circumstances of the case. In the old Code it was held that the Magistrate was empowered to give oath or affirmation in recording the statement [Suppa, 29 M 89; Khem, 22 A 115; Parmanand, AIR 1933 L 321; Amar, AIR 1938 L 796] and statement was admissible whether taken on solemn affirmation or not [Bahadur, AIR 1925 SC 289 ]. In the present Code the Magistrate has been given specific power to administer oath under sub-section (5) of section 164.

Recording of confession by administering oath or affirmation to accused is illegal [Arjun Rai v State of Sikkim, 2004 Cr LJ 4747 (Sikkim)].

Administering oath is barred in the recording of confession statement by the clear provision of sub-section (5) of section 164 of the Code of Criminal Procedure, 1973. Confession should be recorded in the manner provided for recording evidence. If it is recorded in the manner provided for recording evidence by administering oath, then it loses its character. The fact of administering oath at the recording of confession virtually means that the maker is compelled to give evidence against him, placing him in the status of a witness at the stage of investigation in violation of Article 20(3) of the Constitution. Administering oath for recording confession will only mean the recording of evidence of the maker for use in subsequent stage against the maker and which is prohibited in law [Akanman Bora v State of Assam, 1988 Cr LJ 573 : 1987 (3) Crimes 168 : 1987 (2) Gau LR 90 (Gau)].

In case where the Magistrate has to perform the duty of recording a statement under this section, he is under an obligation to elicit all information, which the witness wishes to disclose. The witness who may be an illiterate, rustic villager may not be aware of the purpose for which he has been brought, and what he must disclose. Hence, the Magistrate should ask the witness explanatory questions and obtain all information in relation to the case [R Shaji v State of Kerala, AIR 2013 SC 651 : (2013) 14 SCC 266 : 2013 (1) Crimes 217 (SC)].

When from evidence of prosecution it is established that the confession was recorded by the Magistrate after observing all legal formalities it was held that such confessional statement is validly recorded. [Obaid Akhtar, 1990 Pat LJR 341 ]. [s 164.39] Sub-section (6).— The record should not be made over to the police, but sent direct to the Magistrate who is to enquire or try [Hansraj, AIR 1936 L 341; Indar, AIR 1931 L 408]. Nor should it be made over to the maker of the statement or his pleader [Md Cassian, AIR 1940 R 33] Failure of prosecution to send the record to the Magistrate is a serious breach of duty and consequent unavailability of its copy by the accused may vitiate the trial [Shankar Lal v State, AIR 1954 All 779 : 1954 Cr LJ 1705 ].

Page 31 of 31 [s 164] Recording of confessions and statements.— [s 164.40] Dying declaration of injured.— The statement of the injured surviving his dying declaration is to be treated as statement under section 164, Code of Criminal Procedure, 1973. It can be used only for the purpose of corroboration or contradiction and nothing more [State of UP v Veer Singh, 2004 Cr LJ 3835 (3837) (SC) : 2004 SCC (Cri) 1672 : AIR 2004 SC 4614 : 2004 (3) Crimes 19 ; Shrawan Bhadaji Bhirad v State of Maharashtra, 2003 Cr LJ 398 (401) (SC) : 2003 SCC (Cri) 1510 : AIR 2003 SC 199 : 2003 (1) Crimes 90 ].

Such statement need not stand the strictest scrutiny of dying declaration [Shrawan Bhadaji Bhirad v State of Maharashtra, 2003 Cr LJ 398 (401) : 2003 SCC (Cri) 1510 : AIR 2003 SC 199 : 2003 (1) Crimes 90 ].

1

2

Subs. by the Code of Criminal Procedure (Amendment) Act, 2008 (5 of 2009), section 13 (w.e.f. 31 December 2009) for the following proviso: Provided that no confession shall be recorded by a police officer on whom any power of a Magistrate has been conferred under any law for the time being in force. Ins. by the Criminal Law (Amendment) Act, 2013 (13 of 2013), section 16 (w.e.f. 3 February 2013).

End of Document

[s 164-A Medical examination of the victim of rape.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER XII INFORMATION TO THE POLICE AND THEIR POWERS TO INVESTIGATE

The Code of Criminal Procedure, 1973 CHAPTER XII INFORMATION TO THE POLICE AND THEIR POWERS TO INVESTIGATE 3

[s 164-A Medical examination of the victim of rape.— (1) Where, during the stage when an offence of committing rape or attempt to commit rape is under investigation, it is proposed to get the person of the woman with whom rape is alleged or attempted to have been committed or attempted, examined by a medical expert, such examination shall be conducted by a registered medical practitioner employed in a hospital run by the Government or a local authority and in the absence of such a practitioner, by any other registered medical practitioner, with the consent of such woman or of a person competent to give such consent on her behalf and such woman shall be sent to such registered medical practitioner within twenty-four hours from the time of receiving the information relating to the commission of such offence. (2) The registered medical practitioner, to whom such woman is sent, shall, without delay, examine her person and prepare a report of his examination giving the following particulars, namely:— (i)

the name and address of the woman and of the person by whom she was brought;

(ii) the age of the woman; (iii) the description of material taken from the person of the woman for DNA profiling; (iv) marks of injury, if any, on the person of the woman; (v) general mental condition of the woman; and (vi) other material particulars in reasonable detail. (3) The report shall state precisely the reasons for each conclusion arrived at. (4) The report shall specifically record that the consent of the woman or of the person competent to give such consent on her behalf to such examination had been obtained. (5) The exact time of commencement and completion of the examination shall also be noted in the report. (6) The registered medical practitioner shall, without delay, forward the report to the investigation officer who shall forward it to the Magistrate referred to in section 173 as part of the documents referred to in clause (a) of sub-section (5) of that section. (7) Nothing in this section shall be construed as rendering lawful any examination without the consent of the woman or of any person competent to give such consent on her behalf. Explanation.— For the purposes of this section, “examination” and “registered medical practitioner” shall have the same meanings as in section 53.] [s 164A.1] Changes—

Page 2 of 2 [s 164-A Medical examination of the victim of rape.— CrPC (Amendment) Act, 2005 (25 of 2005).—

Section 164A has been inserted vide the Code of Criminal Procedure (Amendment) Act, 2005 (25 of 2005) which provides for medical examination of the rape victim [see also Mohd Haroon v UOI, (2014) 5 SCC 252 : 2014 (4) Scale 86 : 2014 Cr LJ 2170 ].

Notes on Clauses

This clause seeks to insert new section 164-A in the Code to provide for a medical examination of the victim of rape by a registered medical practitioner employed in a hospital run by the Government or a local authority and in the absence of such a practitioner by any other registered medical practitioner. (Notes on Clauses, Clause 17)

This amendment has come into force w.e.f. 23 June 2006 vide Notification No. S.O. 923(E), dt. 21 June 2006.

3

Ins. by the Code of Criminal Procedure (Amendment) Act, 2005 (25 of 2005), section 17 (w.e.f. 23 June 2006 vide Notification No. S.O. 923(E), dated 21 June 2006).

End of Document

[s 165] Search by police officer.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER XII INFORMATION TO THE POLICE AND THEIR POWERS TO INVESTIGATE

The Code of Criminal Procedure, 1973 CHAPTER XII INFORMATION TO THE POLICE AND THEIR POWERS TO INVESTIGATE [s 165] Search by police officer.— (1) Whenever an officer-in-charge of a police station or a police officer making an investigation has reasonable grounds for believing that anything necessary for the purposes of an investigation into any offence which he is authorised to investigate may be found in any place within the limits of the police station of which he is in-charge, or to which he is attached, and that such thing cannot in his opinion be otherwise obtained without undue delay, such officer may, after recording in writing the grounds of his belief and specifying in such writing, so far as possible, the thing for which search is to be made, search, or cause search to be made, for such thing in any place within the limits of such station. (2) A police officer proceeding under sub-section (1), shall, if practicable, conduct the search in person. (3) If he is unable to conduct the search in person, and there is no other person competent to make the search present at the time, he may, after recording in writing his reasons for so doing, require any officer subordinate to him to make the search, and he shall deliver to such subordinate officer an order in writing, specifying the place to be searched, and so far as possible, the thing for which search is to be made; and such subordinate officer may thereupon search for such thing in such place. (4) The provisions of this Code as to search-warrants and the general provisions as to searches contained in Section 100 shall, so far as may be, apply to a search made under this section. (5) Copies of any record made under sub-section (1) or sub-section (3) shall forthwith be sent to the nearest Magistrate empowered to take cognizance of the offence, and the owner or occupier of the place searched shall, on application, be furnished, free of cost, with a copy of the same by the Magistrate. [s 165.1] Changes.— Section 165 corresponds to old section 165. In sub-section (5) the words “free of cost” have been added and the proviso has been omitted providing that record of search should be supplied free of cost instead of on payment as under old sub-section (5). [s 165.2] Scope and application of section 165.— The section empowers the police officer specified to make a search without warrant subject to certain safeguards. The prerequisites for a search are that—

(1) Search must be necessary for investigation.

Page 2 of 7 [s 165] Search by police officer.— (2) The offence must be such as the police officer is authorised to investigate i.e., cognizable offence. (3) Reasonable grounds must exist for believing that the thing required will be found in a place. (4) There would be undue delay in getting the thing in any other way. (5) Grounds of belief as to necessity of search must be previously recorded. (6) The article for search must be specified, as far as possible, in the record.

Power of police authority to seize the passport.—The Police Officer under the provisions of Section 165 Code of Criminal Procedure, 1973 has got the power to seize the passport if in his opinion it is necessary to control the movement of the person alleged to have committed an offence and to secure his/her presence whenever necessary for the purpose of investigation. [Hamida Habib Jeelani v Secretary to Government Home Dept, 1996 Cr LJ 1086 : 1996 (1) Andh LD 414 (AP)].

Sub-section (3)(e) of section 10 of the Passport Act provides for impounding of a passport if proceedings in respect of an offence alleged to have been committed by the holder of the passport or travel document are pending before a Criminal Court in India. Thus, the Passport Authority has the power to impound the passport under the Act. Section 102 of Code of Criminal Procedure, 1973 gives powers to the police officer to seize any property which may be alleged or suspected to have been stolen or which may be found under circumstances which create suspicion of the commission of any offence. Sub-section (5) of section 165 of Code of Criminal Procedure, 1973 provides that the copies of record made under sub-section (1) or sub-section (3) shall forthwith be sent to the nearest Magistrate empowered to take cognizance to the offence whereas section 104 of Code of Criminal Procedure, 1973 authorizes the Court to impound any document or thing produced before it under the Code. Section 165 of Code of Criminal Procedure, 1973 does not speak about the passport, which has been searched and seized. It does not speak about the documents found in search, but copies of the records prepared under sub-sections (1) and (3). “Impound” means to keep in custody of the law. There must be some distinct action which will show that documents or things have been impounded. According to the Oxford Dictionary “impound” means to take legal or formal possession. When we read section104 of Code of Criminal Procedure, 1973 and section10 of the Act together, under Code of Criminal Procedure, 1973, the court is empowered to impound any document or thing produced before it whereas the Act speaks specifically of impounding of the passport. Thus, the Act is a special Act relating to a matter of passport, whereas section 104 of the Code of Criminal Procedure, 1973 authorizes the Court to impound document or thing produced before it. Where there is a special Act dealing with specific subject, resort should be had to that Act instead of general Act providing for the matter connected with the specific Act. As the Passports Act is a special Act, the rule that “general provision should yield to the specific provision” is to be applied [Suresh Nanda v CBI, AIR 2008 SC 1414 ; see also Dam Valaji Shah v LIC of India, AIR 1966 SC 135 : 1965 (3) SCR 665 ; Gobind Sugar Mills Ltd v State of Bihar, 1999 (7) SCC 76 : AIR 1999 SC 3097 : 1999 (115) STC 358 ; Belsund Sugar Co Ltd v State of Bihar, AIR 1999 SC 3125 : 1999 (9) SCC 620 .

Railway Police Force officers are empowered to conduct a house search during an enquiry under the Railway Police (UP) Act even without a search warrant. [Santosh Kumar Karmakar v State of WB, 2001 Cr LJ 3828 : 2001 Cal WN 1092 : 2001 (1) Cal LJ 640 (Cal)].

Recovery of the revolver was in violation of sections 165 and 166(3) of Criminal Procedure Code. regarding section 165, it is admitted that for the search conducted the evidence of the police officer that no body was willing to stand as a witness cannot therefore, be spurned down as improbable. [Manish Dixit v State of Rajasthan, AIR 2001 SC 93 : 2001 Cr LJ 133 : (2001) 1 SCC 596 : 2000 (4) Crimes 171 ].

There is no rider or exception that prior to taking action as per provisions given under section 165 of Code of Criminal Procedure, 1973, search warrant cannot be issued by the competent Court by invoking powers under section 93(1)(c), Code of Criminal Procedure, 1973. Therefore, the Investigating Agency may make search as per provisions under section 165, Code of Criminal Procedure, 1973 or if required may approach the competent

Page 3 of 7 [s 165] Search by police officer.— court under section 93(1)(c), Code of Criminal Procedure, 1973, as the case may be [Avadhesh Singh Tomar v State of Madhya Pradesh, W.P. No. 2352/15 decided on 24 April 2015 (MP—DB)].

The refusal to issue passport on the ground of pendency of criminal case was held improper because the criminal cases against the appellant were only at the stage of investigation and the final report was yet to be filed. The proceedings can be said to be initiated when under section 190(a) of the Code, only when cognizance is taken [Venkatesh Kandasamy v Government of India, Ministry of External Affairs, Chennai, AIR 2015 Mad 3 : 2015 (4) RCR (Civil) 932 ]. [s 165.3] No prerogative right.— The above conditions must all be fulfilled. Searches have to be conducted strictly in accordance with the formalities and within the legal limits prescribed in the Code. No officer has a prerogative right to forcibly enter a citizen’s house except under authority of law which is open to be examined by the Courts of law and justice [State v Bhawani Singh, AIR 1968 Del 208 FB : 1968 Cr LJ 1265 : (1968) 70 Punj LR (D) 96 ]. Indiscriminate search causes considerable resentment and may also lead to serious consequences. To prevent misuse of power and as a safeguard against needless harassment, the section casts an obligation on the police officer to place on record the reasons for making a search without taking a warrant. Ordinarily, the police must apply to a Magistrate for a search warrant (sections 93, 94) and section 165 is meant to be used only when lack of time renders it impolitic [Malak Khan v Emperor, AIR 1946 PC 16 : 72 IA 305 : 50 Cal WN 145 : (1945) 2 Mad LJ 486 : 48 Bom LR 132] and delay would frustrate the object of the search [Sitaram, AIR 1944 P 222]. Police choosing to apply to a Magistrate for search warrant cannot avail of section 165 [Nidhi, 59 Cal WN 649].

The power to search is incidental to the investigation of an offence which the officer is authorised to investigate [State v Santprakash, 1976 Cr LJ 274 FB : 1976 All LJ 100 : 1976 All Cr C 326 (All)] and so search in a noncognizable offence makes him liable for damages [Bahabal, 24 C 691]. Search by the police of the premises involved in a cognizable case does not contravene Article 20(3) of Constitution [Swarnalingam Chettiar v Asst Inspector of Labour, AIR 1955 Mad 685 : 1955 Cr LJ 1602 (1) : 1955 (1) Mad LJ 269 : 1955 Mad WN 567]. [s 165.4] Document or thing.— Though the section, does not speak of “any document or thing” may (which words occurred in the Code before 1923 amendment and technically may have the likeness of a general search, the search must be (i) for a known thing, (ii) which is necessary for investigation and (iii) which must be specified in the record made before search as far as possible. There is no power to make a general search on the off-chance of finding something. [See notes under sub-section (1) post]. The provision is clearly intended to restrain a police officer from conducting anything in the nature of a general search [Ram Parbes, AIR 1944 P 228; Sitaram, AIR 1944 P 222] and to act as a check upon irresponsible searches [Maingal, AIR 1930 L 280].

Special Law.—Section 165 empowers search for a necessary thing and does not apply when search is for arrest of the accused [Lachman, AIR 1942 P 281]. The house of a person accused may be searched for specific articles [Paresh, AIR 1927 C 93]. When the accused produces the articles on the approach of police officer, the section does not apply [Malak Khan v Emperor, supra]. Search under rule 201 of the rules under Central Excise and Salt Act, 1944, section 18 [State of Rajasthan v Rehman, AIR 1960 SC 210 : 1960 Cr LJ 286 : 1960 (1) SCR 991 (SC)], and section 41(2) Madras General Sales Tax Act, 1959 [Re R Kothandapani, AIR 1968 Mad 59 : 1968 Cr LJ 182 : 1967 Mad LW (Cri) 2 : 1967 (1) Mad LJ 276] must be in accordance with section 165 of the Code. section 22A, Forward Contract Regulation Act, 1952, does not debar the police from exercising power under section 165 [MR Pillai v Motilal Vrijbhukhandas, AIR 1970 Bom 324 : 1970 Cr LJ 1216 : 71 Bom LR 619 : 1969 Mah LJ 875 ]. Chapter XII is controlled by section 5(2), Bombay Abkari Act, 5 of 1878 [Md Usman, AIR 1933 SC 325 , FB]. Section 165 is not applicable to search under section 5, Public Gambling Act, 1867 [Devi Rup v The State, AIR 1967 HP 18 : 1967 Cr LJ 376 ; Kaitan, 31 B 438; Khilinda, AIR 1922 L 458; Rure Mal, AIR 1929 A 937; Raghunath, AIR 1932 B 610; Re Nimmagadda Raghavalu, AIR 1953 Mad 243 : 1953 Cr LJ 492 : 1952 (2) Mad LJ 686 : 65 Mad LW 949; Re Ramprasad, AIR 1937 N 251; Chunilal Chhaganlal v State, AIR 1961 Guj 127 : 1961 (2) Cr LJ 85 relied on)]. Section 165(1) does not apply to a situation arising under section 105, Customs Act, 1962, [Gopikisan Agarwal v RN Sen, AIR 1967 SC 1298 : 1967 Cr LJ 1194 (SC)]. Though section 165 is made applicable to section 132, Income Tax Act by sub-section (13) of the Act, sub-section (2) does not imply that the limitations prescribed by section 165 are also incorporated therein [Seth Bros v ITO, AIR 1970 SC 292 : [1969] 74 ITR 836 (SC)]. [s 165.5] Sub-section (1)—Reasonable grounds—[General search].—

Page 4 of 7 [s 165] Search by police officer.— Observance of the safeguards imposed (viz., reasonable grounds for belief, thing necessary for investigation, record of grounds of belief, specification of the thing etc.) is mandatory and they must all be fulfilled before search [Sitaram, AIR 1944 P 222; Ram Parbes, AIR 1944 P 228; Hiralal, AIR 1935 N 237; Emperor v Mohammd Shah, AIR 1946 Lah 456 : (1947) 48 Cr LJ 161 : 48 Punj LR 52; Sanchaita Investment v State, AIR 1981 Cal 157 : 1981 Cr LJ (NOC) 96 : 1981 (1) Cal HN 324]. The reasons set out must indicate the nature of the thing and its relation to the investigation, and a mere recital of the language of the section would not be sufficient compliance [Kesoram Industries, 78 Cal WN 121]. Provisions being mandatory, non-compliance of them renders the search illegal and the person obstructing the officers attempting to enter premises would not be guilty [Mithukhan v State of Rajasthan, AIR 1969 Raj 121 : 1969 Cr LJ 515 : ILR (1969) 19 Raj 724 ; State of Assam v Upendranath Raj Khowa, 1975 Cr LJ 354 (Gau)], but once the search and seizure is complete he is liable for offences such as under sections 342 and 353, Indian Penal Code, 1860 committed against the officers [Shyamlal Sharma v State of UP, AIR 1972 SC 886 : 1972 Cr LJ 638 : (1972) 1 SCC 764 ]. Where the illegal search is not resisted and the seizure is not resisted and allowed to be completed, the act of obstructing the public servant in taking steps in discharge of lawful duty for the safe custody of the property would be punishable under section 353, Indian Penal Code, 1860 [State v Santprakash, 1976 Cr LJ 274 FB : 1976 All LJ 100 : 1976 All Cr C 326 (All)]. In some cases it has been held to be directory [Maingal, AIR 1930 L 280; Nava v State of Mysore, AIR 1957 Mys 24 : 1957 Cr LJ 381 : ILR (1956) Mys 238 and Ujagar, AIR 1932 O 240 where reasons were not recorded] and substantial compliance with the requirements of sub-section (1) would be sufficient [Fedders Lloyd Corp Pvt Ltd v BA Lakshminarayana Swami, AIR 1969 Delhi 26 : 1969 Cr LJ 168 ]. The recording of reasons, though it does not confer jurisdiction to search, is an important step and to ignore it is to ignore a material part of section 165 [Rehman, supra]. In Ali Ahmed, AIR 1924 A 214, it was held that failure to record reason is not a material error vitiating the conviction. The irregularity caused in non-recording of grounds does not vitiate a trial unless there is miscarriage of justice and is curable under section 465 [Parshotam Das v State, 1975 Cr LJ 309 (Del)]. [s 165.6] Reasonable grounds for belief.— It is not “reasonable suspicion” [as in section 41(1)(b)] but the existence of reasonable grounds for believing combined with the other requisites mentioned in the section that confers power to search without warrant. The section must be interpreted strictly. The expression “has reasonable grounds for believing” is equivalent to the expression “has reason to believe” in section93 (See notes, ante). A belief is based on some definite facts [Khaliqan v Emperor, AIR 1945 Oudh 170 : (1946) 47 Cr LJ 76 : 221 IC 6]. In section 46 of the Calcutta Police Act also the words used are “has reason to believe”. [s 165.7] Grounds of belief.— Grounds of belief as to the necessity of search must be recorded and the thing specified [Sohan, AIR 1933 O 305; Jagannath, 29 Cr LJ 272]. Non-recording of reasons for search makes the search illegal to the extent that the person whose house was searched would escape with impunity in case of obstruction to that illegal search [State v Satyanarayan Mallik, AIR 1965 Ori 136 : 1965 (2) Cr LJ 112 : 31 Cut LT 172]. Reason can be recorded prior to actual search [Asandas, AIR 1933 SC 240 ]. Non-observance of the formalities cannot be lightly brushed aside [Durgadas, AIR 1943 L 28] and failure to comply with them is not acting in good faith within section 52, PC [Gopi, AIR 1932 P 66 : 33 Cr LJ 233; See Chander, AIR 1937 P 501]. Omission to comply with certain procedural portions of sections 165 and 166 may be overlooked where the officer was acting in continuous discharge of duty [Nangu, AIR 1935 O 270]. [s 165.8] General search.— Section 165(1) is not a provision for a general search; it is a search for a particular thing necessary for the purpose of investigation [Kesoram Industries, 78 Cal WN 121]. Section 165 does not give authority for general search for stolen property but only for specific stolen articles for which a list is given. A general search is one not in respect of specific documents or things but a roving enquiry for discovering documents etc. which might involve persons in criminal liability [Paresh, 27 Cr LJ 1195 : AIR 1927 C 93; Bajrangi, 15 Cal WN 343 : 12 Cr LJ 8]. It differs sharply from section 93 in the absence of a power to conduct, without a search warrant, a general search or inspection [Sitaram, AIR 1944 P 222; Ram Parbes, AIR 1944 P 228]. A general search on the plea of finding stolen property is illegal and the inmates of the house have the right of private defence against the searching officer [Bajrangi, supra]. Section 165 also permits search for anything necessary for investigation [Param, AIR 1926 A 147]. In the case of an illegal lottery, seizure of all books was justified [General Relief etc, AIR 1932 L 581].

Page 5 of 7 [s 165] Search by police officer.— Unauthorised persons should not be allowed to come to the house without being searched [Sohan, AIR 1933 O 305]. [s 165.9] Within the limits.— The search must be made within the limits of the police-station. Search beyond limits would be illegal, but in spite of it the police can exercise powers under sections 41(2) and 102 [Mir Sha, 16 Cr LJ 15 : 8 SLR 1]. In certain cases a place within the limits of another policestation may be searched [section 166(3)].

Non-production of copy of notice sent to officer-in-charge of police station by the IO is of no consequence. [Ranny v State of Maharashtra, AIR 1998 (SC) 1251 : 1998 (3) SCC 625 ]. [s 165.10] Sub-sections (2) and (3).— “Search in person” does not mean that the police officer should do all necessary acts with his own hands, but that he should personally go to the spot and supervise [Satagopala, 23 Mad LJ 445 : 13 Cr LJ 763 (Dissenting from 17 Mad LJ 323); Ujagar, AIR 1932 O 249].

Where the officer in-charge is unable to go himself, he deputes a sub-ordinate with a written order after recording reason. The written order must specify the place of search and the thing. The subordinate can search only for that thing [Ram Parbes, AIR 1944 P 228]. Search without written authority is illegal [Idu, 6 CLJ 753; Madho, 16 Cr LJ 589] and resistance to it is no offence [Ram Parbes, supra]. Oral order is illegal [Hiralal, AIR 1935 N 237]. Sub-section (3) does not apply when search is made by a subordinate in the police officer’s presence [Darshan, AIR 1941 L 297]. [s 165.11] Sub-section (4).— Before making search the provisions of section 100 (relating to search witness) shall be complied with [see Sitaram, AIR 1944 P 222] and a free copy of the search list must be given to the occupant irrespective of his asking for it. They apply so far as may be [Shiam, AIR 1927 A 516] and so it is recognised that there may be circumstances in which it may not be possible to observe the provisions of section 100 in full [Indu Bhusan Chatterjee v State, AIR 1955 Cal 129 : 1955 Cr LJ 433 ; Parshotam Dass v State, 1975 Cr LJ 309 (Del)].

The search contemplated under section 100 of the Code, is under the authorization given by the concerned Court by way of search warrant to the officer concerned. However, section 165 of the Code has some relaxation to the officer from obtaining search warrant before proceeding for search [Basu Shankrappa Chavan v State of Karnataka, LNINDU 2015 DHRWD 239 : Criminal Appeal No. 2785/2009 decided on 3 February 2015 (Kant)]. [s 165.12] Sub-section (5).— It is intended as an extra safeguard to protect against general or roving searches. It is essential that copies of the record should be sent to the Magistrate before undertaking the search, otherwise resistance to it is no offence [Lal Mea, AIR 1926 C 663 : 27 Cr LJ 542; See Gopi, AIR 1932 P 66; Durgadas, AIR 1943 L 28]. Not sending of copies of the records of search to the Magistrate would not invalidate the search if there is substantial compliance with its provisions. In this case, where a copy of the seizure list along with a copy of authorisation was sent to the Magistrate two days after completion of search which went on for four days, it was held that there was no substantial compliance [Kesoram Industries, 78 Cal WN 121]. If the procedure is not strictly legal as when the officer fails to comply with making a record and sending a copy of it to the Magistrate, the accused cannot be held to be guilty of obstructing a public officer under sections 353, 332 and 323, Indian Penal Code, 1860 [Thakur Tanti v State, AIR 1964 Pat 493 : 1964 (2) Cr LJ 571 ]. Provision in sub-section (5) is not mandatory but directory even though the word used is “shall,” but that does not mean that fulfilment of requirement is discretionary. In cases where requirement cannot be fulfilled for reasons beyond control or for other justifiable reasons the search would not be bad in law [Fedders Lloyd Corp Pvt Ltd v BA Lakshminarayana Swami, AIR 1969 Del 26 : 1969 Cr LJ 168 ]. Where record under sub-section (1) was sent to the Magistrate having jurisdiction to take cognizance instead of to special judge having exclusive jurisdiction to try the offence, there is compliance with sub-section (5), Fedders Lloyds etc, supra]. Not sending the record to the nearest Magistrate but to another Magistrate bona fide is a curable irregularity [Re Govindan Nair, AIR 1959 Mad 544 : 1959 Cr LJ 1445 ]. Refusal to supply copy is illegal and order can be set aside under section 397 [Churamani, AIR 1928 A 402].

Page 6 of 7 [s 165] Search by police officer.— [s 165.13] Non-compliance with provisions of section 165, CrPC, 1973 : Effect.— In a case of recovery of 54 bottles of liquor from the conscious possession of the accused stood established on the record beyond a reasonable doubt. Nothing had come on record to show as to what prejudice had been caused to the accused due to non-compliance of the provisions of section 165, CrPC, 1975 [State of HP v Sukh Ram, 2003 Cr LJ 219 (221) : 2003 (1) Cur Cr R 447 (HP)].

Where the seizure mazahar is prepared at a later stage, the officer should indicate the reasons as to why he had not prepared the mazahar at the spot of recovery [Khet Singh v UOI, 2002 Cr LJ 1832 (1836) : AIR 2002 SC 1450 : 2002 (2) Crimes 33 : (2002) 4 SCC 380 ]. [s 165.14] Illegal search.— The test of admissibility of evidence lies in relevancy and unless there is an express or necessarily implied prohibition in the constitution or other law, evidence obtained as a result of illegal search or seizure is not liable to be shut out. Apparently and justifiably the said legal position as propounded always have a universal application, as in order to dispense justice and ensure that the real culprits are brought to book, the investigating agency should make every endeavour to unearth the truth by scrutinizing and gathering every minute details and materials and place it before the concerned adjudicative machinery in order to enable the Court examining the guilt or otherwise of an accused to reach a just conclusion [Bharati Tamang v UOI, 2013 (13) Scale 108 : 2014 Cr LJ 156 (SC)].

When it is found that the evidence of recovery of articles in a search is reliable, the fact that the search was illegal or that some of the provisions of law were disregarded would not render it inadmissible or vitiate the trial [State of Maharashtra v Natwarlal Damodardas Soni, AIR 1980 SC 593 : 1980 Cr LJ 429 : (1980) (4) SCC 669 (SC); State of Kerala v Alasserry Mohammed, AIR 1978 SC 933 : 1978 Cr LJ 925 : (1978) 2 SCC 386 (SC); Shyamlal Sharma v State of MP, AIR 1972 SC 886 : 1972 Cr LJ 638 : (1972) 1 SCC 764 (SC); Barindra, 37 C 467, 500; Bonomali, AIR 1940 C 85; Indu Bhusan Chatterjee v State, AIR 1955 Cal 129 : 1955 Cr LJ 43 ; Solai, 34 M 349; Allhadad, 35 A 358; Rure Mal, AIR 1929 A 937; Dinkar, AIR 1930 B 169; Pyli Yaccob v State, AIR 1953 Trav-Co 466 : 1953 Cr LJ 1670 : ILR (1952) Trav-Co 937; Kochan Velayudhan v State of Kerala, AIR 1961 Ker 8 FB : 1961 (1) Cr LJ 70 : 1960 Ker LT 607 : ILR (1960) Ker 802 ; Kamalabai Jethamal v State of Maharashtra, AIR 1962 SC 1189 : 1962 (2) Cr LJ 273 (SC); Radha Kishan v State of UP, AIR 1963 SC 822 : 1963 (1) Cr LJ 809 (SC); United Oil Mills v Collector of Customs and Central Excise, AIR 1963 Ker 241 : 1963 (2) CrLT 279 : 1962 Ker LJ 1212; The State v Satyanarayan Mallik, AIR 1965 Ori 136 : 1965 (2) Cr LJ 112 : 31 Cut LT 172; Fedders Lloyd etc, supra; State v Sat Prakash, 1976 Cr LJ 274 : 1976 All LJ 100 : 1976 All Cr C 326 (All) FB; Khet Singh v UOI, 2002 Cr LJ 1832 (1836) SC : AIR 2002 SC 1450 : 2002 SCC (Cri) 806 : 2002 (3) Scale 58 ]. In search and seizure is in complete defiance of the law and procedure and there is possibility of the evidence collected likely to have been tampered with or interpolated during the course of such search or seizure, the evidence is not admissible [Khet Singh v UOI, 2002 Cr LJ 1832 (1836) : AIR 2002 SC 1450 : 2002 (2) SCJ 530 : JT 2002 (3) SC 208 ]. See also notes, to section 100 ante. Illegal seizure of goods would amount to infringement of fundamental rights and the High Court under Article 226 would be entitled to direct return of the goods [Wazir Chand v State of HP, AIR 1954 SC 415 : 1954 Cr LJ 1029 (SC)]. Person from whom articles have been seized in the course of an illegal search is entitled to claim return of them. Right to claim return is an integral part of right to resist [Kesoram Industries v SK Rattan, 78 Cal WN 121; Ramkishan Jhaver v The Commissioner of Commercial Taxes, AIR 1968 SC 59 : [1968] 1 SCR 148 ].

Some lapses in not complying with the provisions of search will not vitiate the recovery proceedings [Om Wati v State, 1990 Cr LJ 304 : (1990) 40 DLT 69 ]. Illegality in search does not vitiate seizure unless it has caused prejudice to accused [State of MP v Pattan Mullah, AIR 2005 SC 733 : 2005 Cr LJ 918 : (2005) 3 SCC 169 : 2005 (1) Crimes 220 (SC)].

In the case of an illegal search, the consequential seizure may not always be bad, in the sense, the evidence collected through an illegal search may be used as relevant evidence, but, retention of the illegally seized article will be a continuous and recurring illegality; deprivation of a citizen’s property (whether movable or immovable) not authorised by law, is an unconstitutional act,; if the articles seized are part of the stock in trade, such illegal deprivation also would offend the fundamental right under Article19(1)(f) of the Constitution. [Mariappa v State of Karnataka, 1991 Cr LJ 1167 : 1990 (1) EFR 61 : 1991 (10 FAC 196 (Karn)].

Page 7 of 7 [s 165] Search by police officer.— [s 165.15] Calcutta police.— On credible information before him on oath the commissioner of police may issue search-warrant for explosive substance (section 60, Calcutta Police Act) or for goods suspected to be stolen or unlawfully obtained or lodged in any dwelling house, building, ship etc., section 79 ibid), or for rescue of a person wrongfully confined (section 80A, ibid). Police officer not below the rank of an inspector may search for stolen property without warrant when there is reasonable cause for such suspicion (section 80, ibid). If upon information on oath the commissioner of police has reason to believe that any place is used as a common gaming house, he may grant warrant to police officers to enter such gaming house for search and seizure (section 46, ibid). As to meaning of “reason to believe”; See Walvakar, 30 Cal WN 713 cited under section 93, ante). Procedure in making search (section 80C, ibid). Search for false weight and measures (See section 56, ibid, and section 153, ante.).

Officerincharge of a police station in Calcutta may require any officer in-charge of a police station in West Bengal to cause a search to be made in any place in a case in which the former might cause search to be made within the limits of his own station. The officer on being so required shall proceed under section 80, ibid or under section 165 of the Code of Criminal Procedure, 1973, whichever is applicable (section 80B, ibid).

A police officer is liable to imprisonment up to six months or to a fine up to Rs 500, or to both for vexatious entry, search, seizure, arrest, detention etc (section 13C, ibid). [s 165.16] Police in Bombay.— Under section 65(1), Bombay Police Act, 22 of 1951, every police officer may without warrant enter and inspect any place of public resort which he had reason to believe is used as drinking shop, or a shop for the sale of intoxicating drugs or a place of resort of loose and disorderly characters. Under sub-section (2) a police officer has power to search a person in a street or a place of public resort suspected in good faith to be in possession of stolen property and to detain the article found and to report the facts to a Magistrate for action under sections 457 and 459 of the Code. Power to search for false weights and measure (See section 95, ibid and notes to section 153, ante).

Penalty for vexatious entry, search, seizure, arrest, detention, personal violence etc by a police officer is imprisonment up to six months or a fine up to Rs 500, or both (section 147, Bombay Police Act, 1951). End of Document

[s 166] When officer-in-charge of police station may require another to issue search-warrant.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER XII INFORMATION TO THE POLICE AND THEIR POWERS TO INVESTIGATE

The Code of Criminal Procedure, 1973 CHAPTER XII INFORMATION TO THE POLICE AND THEIR POWERS TO INVESTIGATE [s 166] When officer-in-charge of police station may require another to issue search-warrant.— (1) An officer-in-charge of a police station or a police officer not being below the rank of sub-inspector making an investigation may require an officer-in-charge of another police station, whether in the same or a different district, to cause a search to be made in any place, in any case in which the former officer might cause such search to be made, within the limits of his own station. (2) Such officer, on being so required, shall proceed according to the provisions of Section 165, and shall forward the thing found, if any, to the officer at whose request the search was made. (3) Whenever there is reason to believe that the delay occasioned by requiring an officer-in-charge of another police station to cause a search to be made under sub-section (1) might result in evidence of the commission of an offence being concealed or destroyed, it shall be lawful for an officer-in-charge of a police station or a police officer making any investigation under this Chapter to search, or cause to be searched, any place in the limits of another police station in accordance with the provisions of Section 165, as if such place were within the limits of his own police station. (4) Any officer conducting a search under sub-section (3) shall forthwith send notice of the search to the officer-in-charge of the police station within the limits of which such place is situate, and shall also send with such notice a copy of the list (if any) prepared under Section 100, and shall also send to the nearest Magistrate empowered to take cognizance of the offence, copies of the records referred to in sub-sections (1) and (3) of Section 165. (5) The owner or occupier of the place searched shall, on application, be furnished free of cost with a copy of any record sent to the Magistrate under sub-section (4). [s 166.1] Changes.— Section 166 corresponds to old section166. In sub-section (5) the words “free of cost” have been added and the proviso has been omitted, providing that record of search should be supplied free of cost instead of on payment as under old sub-section (5). [s 166.2] Scope and application of section 166.— This section enables an officer in charge of a police station to have a search made within the limits of another station through the officer in charge of that station who will proceed as laid down in section 165. In emergent cases sub-sections (3) and (4) empower the officer in charge of one station to search or cause to be searched places within the limits of another station.

Page 2 of 2 [s 166] When officer-in-charge of police station may require another to issue search-warrant.— The mere fact that the search was conducted in the place within the limits of another police station and the services of officer-in-charge of the said another police station were not requisitioned would not render the search illegal. In the instant case the failure to comply with the provisions of section 166, Code of Criminal Procedure, 1973 did not in any manner vitiate the trial or conviction especially when the failure to comply with the said provisions is bona fide and not mala fide [Narendra v State, 2009 Cr LJ 3613 (3622) (Del)].

In the instant case the investigating officer deviated from the procedure regulating searches as contained in sections 165 and 166, Code of Criminal Procedure, 1973. The kidnapped child was recovered from the search made in the house of accused overlooking the provisions of sections 165 and 166, Code of Criminal Procedure, 1973. The factum of recovery of child stood fully proved on record. It was held that in the facts and circumstances of the case, contraventions of the provisions of sections in no manner nullified the recovery of the child nor made the recovery illegal. The failure to comply with the provisions on the part of investigating officer was bona fide and not mala fide [Narendra v State, 2009 Cr LJ 3613 (3622) (Del)].

It is evident from sub-section (3) that it permits an investigating officer belonging to one police station to search any place falling within the limits of another police station in certain exigencies. One such exigency is when there is possibility of delay in requestionating the services of police personnel of another police station and such delay could defeat the very purpose of search, then the investigating officer can proceed to that other place and conduct the raid or search by himself. However, when he does so he is obliged to conform to certain required merits as prescribed in sub-section (4) one is that he shall inform the officer in charge of other police station and send him a copy of the list prepared by him in search, second is that he should send the copies of the search documentals to the nearest Magistrate who has the competence to take cognizance of the offence [Manish Dixit v State of Rajasthan, AIR 2001 SC 93 : 2001 Cr LJ 133 : (2001) 1 SCC 596 : 2000 (4) Crimes 171 (SC)].

Where the circle officer who conducted the search had given information to higher officer of area who agreed to inform police officers of area where search was conducted at their own level then search cannot be invalid. [Manish Dixit v State of Rajasthan, AIR 2001 SC 93 : 2001 Cr LJ 133 : (2001) 1 SCC 596 : (2000) 4 Crimes 171 (SC)]. End of Document

[s 166-A Letter of request to competent authority for investigation in a country or place outside India.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER XII INFORMATION TO THE POLICE AND THEIR POWERS TO INVESTIGATE

The Code of Criminal Procedure, 1973 CHAPTER XII INFORMATION TO THE POLICE AND THEIR POWERS TO INVESTIGATE 4[s

166-A Letter of request to competent authority for investigation in a country or place outside India.— (1) Notwithstanding anything contained in this Code, if, in the course of an investigation into an offence, an application is made by the investigating officer or any officer superior in rank to the investigating officer that evidence may be available in a country or place outside India, any Criminal Court may issue a letter of request to a Court or an authority in that country or place competent to deal with such request to examine orally any person supposed to be acquainted with the facts and circumstances of the case and to record his statement made in the course of such examination and also to require such person or any other person to produce any document or thing which may be in his possession pertaining to the case and to forward all the evidence so taken or collected or the authenticated copies thereof or the thing so collected to the Court issuing such letter. (2) The letter of request shall be transmitted in such manner as the Central Government may specify in this behalf. (3) Every statement recorded or document or thing received under sub-section (1) shall be deemed to be the evidence collected during the course of investigation under this Chapter.]

Section 166A is a section inserted vide the Code of Criminal Procedure (Amendment) Act, 1990 to provide for a situation where evidence may be available in a country or place outside India. Use of evidence collected in violation of Letter Rogatory and undertaking given by the prosecution as well as the central Government under section 166A, Code of Criminal Procedure, 1973, would in strict sense, render the trial unfair and evidence inadmissible [J Jaiyalalitha v State, 2002 Cr LJ 3026 (3041) (Mad) : 2002 (1) Mad LW (Cri) 247 ].

4

Ins. by the Code of Criminal Procedure (Amendment) Act, 1990 (10 of 1990), section 2 (w.e.f. 19 February 1990).

End of Document

[s 166-B Letter of request from a country or place outside India to a Court or an authority for investigation in India.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER XII INFORMATION TO THE POLICE AND THEIR POWERS TO INVESTIGATE

The Code of Criminal Procedure, 1973 CHAPTER XII INFORMATION TO THE POLICE AND THEIR POWERS TO INVESTIGATE 5[s

166-B Letter of request from a country or place outside India to a Court or an authority for investigation in India.— (1) Upon receipt of a letter of request from a Court or an authority in a country or place outside India competent to issue such letter in that country or place for the examination of any person or production of any document or thing in relation to an offence under investigation in that country or place, the Central Government may, if it thinks fit,— (i)

forward the same to the Chief Metropolitan Magistrate or Chief Judicial Magistrate or such Metropolitan Magistrate or Judicial Magistrate as he may appoint in this behalf, who shall thereupon summon the person before him and record his statement or cause the document or thing to be produced; or

(ii) send the letter to any police officer for investigation, who shall thereupon investigate into the offence in the same manner, as if the offence had been committed within India. (2) All the evidence taken or collected under sub-section (1), or authenticated copies thereof or the thing so collected, shall be forwarded by the Magistrate or police officer, as the case may be, to the Central Government for transmission to the Court or the authority issuing the letter of request, in such manner as the Central Government may deem fit].

Section 166B is a section inserted vide the Code of Criminal Procedure (Amendment) Act, 1990 prescribing the procedure to be followed where a letter of request from a country or place outside India is sent to the Court or an authority for investigation in India. In the instant case, the appellant was a suspect of murder in Canada. The Canadian Authorities requested. Ministry of Home Affairs, Govt. of India requesting the said Ministry through its Agencies to interview the appellant and obtain on voluntary basis his statement and a sample of the blood for DNA analysis in a manner acceptable to the Canadian Court. It was held that if the appellant was not willing to make any statement and give his blood samples, the CBI could not take recourse to section 166B of the Code, because that was not the request of the Canadian Authorities [Narender Singh Bogaih v State of Punjab, AIR 2004 SC 1686 : 2004 Cr LJ 1446 : 2004 (2) Crimes 166 (SC)].

Page 2 of 2 [s 166-B Letter of request from a country or place outside India to a Court or an authority for investigation in India.— 5

Ins. by the Code of Criminal Procedure (Amendment) Act, 1990 (10 of 1990), section 2 (w.e.f. 19 February 1990).

End of Document

[s 167] Procedure when investigation cannot be completed in twenty-four hours.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER XII INFORMATION TO THE POLICE AND THEIR POWERS TO INVESTIGATE

The Code of Criminal Procedure, 1973 CHAPTER XII INFORMATION TO THE POLICE AND THEIR POWERS TO INVESTIGATE [s 167] Procedure when investigation cannot be completed in twenty-four hours.— (1) Whenever any person is arrested and detained in custody, and it appears that the investigation cannot be completed within the period of twenty-four hours fixed by section 57, and there are grounds for believing that the accusation or information is well-founded, the officer in-charge of the police station or the police officer making the investigation, if he is not below the rank of Sub-Inspector, shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate. (2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction: 6

[Provided that—

(a) The Magistrate may authorise the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding,— (i)

ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years;

(ii) sixty days, where the investigation relates to any other offence, and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub-section shall be deemed to be so released under the provisions of chapter XXXIII for the purposes of that Chapter;] 7 [(b) no Magistrate shall authorise detention of the accused in custody of the police under this section unless the accused is produced before him in person for the first time and subsequently every time till the accused remains in the custody of the police, but the Magistrate may extend further detention in judicial custody on production of the accused either in person or through the medium of electronic video linkage;]

Page 2 of 39 [s 167] Procedure when investigation cannot be completed in twenty-four hours.— (c) no Magistrate of the second class, not specially empowered in this behalf by the High Court, shall authorise detention in the custody of the police. 8

[Explanation I— For the avoidance of doubts, it is hereby declared that, notwithstanding the expiry of the period specified in para (a) the accused shall be detained in custody so long as he does not furnish bail.] 9[Explanation

II.—If any question arises whether an accused person was produced before the Magistrate as required under clause (b), the production of the accused person may be proved by his signature on the order authorising detention or by the order certified by the Magistrate as to production of the accused person through the medium of electronic video linkage, as the case may be:] 10[Provided

further that in case of a woman under eighteen years of age, the detention shall be authorised to be in the custody of a remand home or recognized social institution.] 11[(2A) Notwithstanding anything contained in sub-section (1) or sub-section (2), the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of a subinspector, may, where a Judicial Magistrate is not available, transmit to the nearest Executive Magistrate, on whom the powers of a Judicial Magistrate or Metropolitan Magistrate have been conferred, a copy of the entry in the diary hereinafter prescribed relating to the case, and shall, at the same time, forward the accused to such Executive Magistrate, and thereupon such Executive Magistrate, may, for reasons to be recorded in writing, authorise the detention of the accused person in such custody as he may think fit for a term not exceeding seven days in the aggregate; and, on the expiry of the period of detention so authorised, the accused person shall be released on bail except where an order for further detention of the accused person has been made by a Magistrate competent to make such order; and where an order for such further detention is made, the period during which the accused person was detained in custody under the orders made by an Executive Magistrate under this sub-section, shall be taken into account in computing the period specified in para (a) of the proviso to sub-section (2): Provided that before the expiry of the period aforesaid, the Executive Magistrate shall transmit to the nearest Judicial Magistrate the records of the case together with a copy of the entries in the diary relating to the case which was transmitted to him by the officer in charge of the police station or the police officer making the investigation, as the case may be.] (3) A Magistrate authorising under this section detention in the custody of the police shall record his reasons for so doing. (4) Any Magistrate other than the Chief Judicial Magistrate making such order shall forward a copy of his order, with his reasons for making it, to the Chief Judicial Magistrate. (5) If in any case triable by a Magistrate as a summons case, the investigation is not concluded within a period of six months from the date on which the accused was arrested, the Magistrate shall make an order stopping further investigation into the offence unless the officer making the investigation satisfies the Magistrate that for special reasons and in the interests of justice the continuation of the investigation beyond the period of six months is necessary. (6) Where any order stopping further investigation into an offence has been made under sub-section (5), the Sessions Judge may, if he is satisfied, on an application made to him or otherwise, that further investigation into the offence ought to be made, vacate the order made under sub-section (5) and direct further investigation to be made into the offence subject to such directions with regard to bail and other matters as he may specify. [s 167.1] STATE AMENDMENTS IN SECTION 167 Andaman and Nicobar Islands and Lakshadweep Islands.—The following amendments were made by Regulation 1 of 1974, section 5(b) (w.e.f. 30 March 1974).

Page 3 of 39 [s 167] Procedure when investigation cannot be completed in twenty-four hours.— Section 167.—In its application to the Union Territories of Andaman and Nicobar Islands and Lakshadweep Islands in section 167—

(i)

in sub-section (1), after the words “nearest Judicial Magistrate,” insert the words “or, if there is no Judicial Magistrate in an Island, to an Executive Magistrate functioning in that Island;”

(ii) after sub-section insert the following— (1-A) Where a copy of the entries in the diary is transmitted to an Executive Magistrate, references in section 167 to a Magistrate shall be construed as references to such Executive Magistrate”.

(iii) to sub-section (3) add the following proviso— “Provided that no Executive Magistrate, other than the District Magistrate or Sub-divisional Magistrate, shall, unless he is specially empowered in this behalf by the State Government, authorise detention in the custody of the police,” and

(iv) to sub-section (4) add the following proviso—

Provided that, where such order is made by an Executive Magistrate, the Magistrate making the order shall forward a copy of the order, with his reasons for making it, to the Executive Magistrate to whom he is immediately subordinate.

Andhra Pradesh.—The following amendments were made by Andhra Pradesh Amendment Act, Act 31 of 2001, section 2 (w.e.f. 6 December 2000).

In its application to the State of Andhra Pradesh, in section 167, sub-section (2),—

(i)

in clause (b), add the following at the end, namely:—

either in person or through the medium of electronic video linkage;

Page 4 of 39 [s 167] Procedure when investigation cannot be completed in twenty-four hours.— (ii) in the Explanation II thereunder, for the words “an accused person was produced”, substitute “an accused person was produced in person or as the case may be through the medium of electronic video linkage”.

Chhattisgarh.—In its application to the State of Chhattisgarh, in section 167.—

(1) in sub-section (2), after clause (b), insert the following clause, namely:—

(bb) No Magistrate shall authorise detention of the accused person other than in custody of the police under this section unless the accused is produced before him either in person or through the medium of electronic video linkage and represented by the pleader in the Court.

(2) in explanation II, after the words “was produced”, add the words “from police custody”; (3) after Explanation II, add the following Explanation, namely:—

“Explanation III.—I any question arises whether an accused person was produced from otherwise than in the custody of the police in person or (as the case may be) through medium of electronic video linkage before the Magistrate as required under para (bb), the production of the accused person may be proved by his or his pleader’s signature on the order authorising detention.”.—Chhattisgarh Act 13 of 2006, section 3.

Delhi.—In its application to the State of Delhi, in section 167, in sub-section (2).—

(i)

for clause (b), substitute the following clause, namely:—

(b) no Magistrate shall authorise detention in any custody under this section unless the accused in produced before him either in person or through the medium of electronic video linkage:

Provided that if the accused is in police custody, no Magistrate shall authorise his detention in any custody unless the accused in produced before him in person;;

(ii) for the Explanation II thereunder, substitute the following Explanation, namely:—

Page 5 of 39 [s 167] Procedure when investigation cannot be completed in twenty-four hours.— “Explanation II.— If any question arises whether an accused person was produced in person or, as the case may be, through the medium of electronic video linkage before the magistrate as required under para (b), the production of the accused person may be proved by his signature on the order authorising his detention or by video recording of the proceedings, as the case may be.”.—Delhi Act 4 of 2004, section 2 (w.e.f. 16 August 2004).

Gujarat.— (1) The following amendments were made by Gujarat Amendment Act, Act 21 of 1976, section 2 (w.e.f. 7 May 1976).

Section 167.—In its application to the State of Gujarat in section 167—

(i)

in proviso to sub-section (2), substitute para (a) as follows:—

(a) the Magistrate may authorise detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this section for a total period exceeding— (b) one hundred and twenty days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years; (ii) sixty days, where the investigation relates to any other offence; and, on the expiry of the said period of one hundred and twenty days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail and every person released on bail under this section shall be deemed to be so released under the provisions of chapter XXXIII for the purposes of that Chapter;”

(ii) in para, (b) for the words “no Magistrate shall” read “no Magistrate shall, except for reasons to be recorded in writing,” (iii) the Explanation be numbered as Explanation II, and before so re-numbered Explanation insert as follows:—

Explanation I.— For the avoidance of doubts, it is hereby declared that, notwithstanding the expiry of the period specified in para (a), the accused person shall be detained in custody so long as he does not furnish bail.

Amendment to apply to investigation.—The provisions of section 167 of the Code of Criminal Procedure, 1973, as amended by this Act, shall apply to every investigation pending immediately, before the commencement of this Act, if the period of detention of the accused person, had not, at such commencement, exceeded sixty days. (2) The following amendments were made by Code of Criminal Procedure (Gujarat Amendment) Act, 2003 (31 of 2003), section 2 (w.e.f. 16 August 2003).

Page 6 of 39 [s 167] Procedure when investigation cannot be completed in twenty-four hours.— (iv) in the proviso for para (b), substitute the following paragraph, namely:—

(b) no Magistrate shall authorise further detention in ‘any custody under this section unless—

(i)

where the accused is in the custody of police, he is produced in person before the Magistrate, and

(ii)

where the accused is otherwise than in the custody of the police, he is produced before the Magistrate either in person or through the medium of electronic video linkage, in accordance with the direction of the Magistrate.

(v) in Explanation II, after the words “whether an accused person was produced before the Magistrate”, insert “in person or, as the case may be, through the medium of electronic video linkage”.

Haryana.—The following amendments were made by Haryana Act 20 of 1981, section 2 (w.e.f. 22 December 1981).

After section 167 insert the following section 167A, namely:—

Section 167A. Procedure on arrest by Magistrate.—For the avoidance of doubt, it is hereby declared that the provisions of section 167 shall, so far as may be, apply also in relation to any person arrested by, or under any order or direction of, a Magistrate whether executive of judicial.

Madhya Pradesh.—The following amendments were made by M.P. Act 2 of 2008, section 3 (w.e.f. 14 February 2008). In section 167, in sub-section (2),—

(i)

in the proviso, for para (b), substitute the following paragraph, namely:—

(b) no Magistrate shall authorise detention in any custody under this section unless the accused is produced before him in person, for the first time and subsequently every time till such time the accused remains in the custody of police, but the Magistrate may extend further detention in judicial custody on production of accused either in person or through the medium of electronic video, linkage.;

(ii) for Explanation II, substitute the following Explanation, namely:—

Page 7 of 39 [s 167] Procedure when investigation cannot be completed in twenty-four hours.—

Explanation II.—If any question arises whether an accused person was produced before the Magistrate as required under para (b), the production of the accused person may be proved by his signature on the order authorising detention or by the order certified by the Magistrate as to production of the accused person through the medium of electronic video linkage, as the case may be.

Maharashtra.—The following amendments were made in its application to the State of Maharashtra by Maharashtra Act 8 of 2005 (w.e.f. 25 November 2004).

Section 167.—In sub-section (2) of section 167 :

(a) in the proviso, for para (b), the following paragraph shall be substituted:

(b) no Magistrate shall authorise detention in any custody, of the accused person under this section unless, the accused person is produced before him in person, and for any extension of custody otherwise than the extension in the police custody, the accused person may be produced either in person or through the medium of electronic video linkage.;

(b) in Explanation II, for the words “an accused person was produced” the words “an accused person was produced in person, or as the case may be, through the medium of electronic video linkage” shall be substituted (w.e.f. 25 November 2004). [vide Maharashtra Act 8 of 2005 (w.e.f. 25 November 2004)].

Orissa.—The following amendments were made by Orissa Act 11 of 1997, section 2 (w.e.f. 20 October 1997).

In its application to the State of Orissa, in section 167, in para (a) of the proviso to sub-section (2),—

(i)

for the words “under this paragraph”, substitute “under this section” and

(ii) for the words “ninety days” wherever they occur, substitute “one hundred and twenty days”.

Punjab.—The following amendments were made by Punjab Act 9 of 1986, section 2 (w.e.f. 8 April 1986).

Page 8 of 39 [s 167] Procedure when investigation cannot be completed in twenty-four hours.— Section 167(2).—In sub-section (2) of section 167, as amended in its application to the State of Punjab for the words “thirty days”, at both places where they occur, the words “fifteen days” shall be substituted.

Rajasthan.–The following amendments were made by Rajasthan Act 16 of 2005, section 2 (w.e.f. 8 July 2005).

Section 167.–In its application to the State of Rajasthan, in section 167, sub-section (2),–

(i)

for the existing para (b), substitute the following paragraph, namely:-

(b) where the accused is in police custody, no Magistrate shall authorise detention in any custody under this section unless the accused is produced before him in person;

(bb) where the accused is in judicial custody, no Magistrate shall authorise detention in any custody under this section unless the accused is produced before him either in person or through the medium of electronic video linkage;

(ii) for the existing Explanation II, substitute the following Explanation, namely:–

“Explanation II.–If any question arises whether an accused person was produced before the Magistrate as required under paras (b) and (bb), the production of the accused person may be proved–

(i)

by his signature on the other authorising detention, if he is produced in person; or

(ii) by a certificate to the effect that he was produced through the medium of electronic video linkage recorded by the Magistrate on the order authorising detention, if he is produced through the medium of electronic video linkage”.

Tamil Nadu.— The following amendments were made in its application to the State of TN by Tamil Nadu Act 29 of 2003 (w.e.f. 22 September 2003).

Section 167.—In section 167 of the Code of Criminal Procedure, 1973 (Central Act No. 2 of 1974) :

(1) in the proviso to sub-section (2), for clause (b), the following clause shall be substituted namely :—

Page 9 of 39 [s 167] Procedure when investigation cannot be completed in twenty-four hours.—

(b) no Magistrate shall authorise the detention of an accused person under this section,—

(i)

if the accused is in the custody of police, unless the accused is physically produced before him; and

(ii)

if the accused is detained otherwise than in the custody of police, unless the accused is produced before him either in person or through the media or electronic videolinkage.

(2) In the Explanation II under sub-section (2), after the expression “an accused person was produced” the expression “in person or, as the case may be, through the media of electronic video linkage” shall be inserted. [vide Tamil Nadu Act 29 of 2003 (w.e.f. 22 September 2003]

Tripura.—The following amendments were made by Tripura Act 6 of 1992, section 2; Act 5 of 1997, section 2 and Act 1 of 2004, section 2.

Section 167(2).—In section 167, in its application to the State of Tripura, in para (a) of the pro-viso to subsection (2),—

(a) for the words “ninety days” wherever they occur, the words “one hundred eighty days” shall be substituted; (b) for the words “sixty days” wherever they occur, the words “one hundred twenty days” shall be substituted.

Uttar Pradesh.—The following amendments were made by UP Act 18 of 1977, section 2 (w.e.f. 5 November 1977).

Section 167-A.—In its application to the State of Uttar Pradesh after section 167 insert the following:—

167-A. Procedure on arrest by Magistrate.—For the avoidance of doubts, it is hereby declared that the provisions of section 167 shall, so far as may be, apply also in relation to any person arrested by, or under any order or direction of, a Magistrate, whether executive or judicial.

West Bengal.— (I) The following amendments were made by WB Act 24 of 1988, section 4.

Section 4.— (1) For sub-section (5), the following sub-section shall be substituted:—

Page 10 of 39 [s 167] Procedure when investigation cannot be completed in twenty-four hours.— “(5) If, in respect of—

(i)

any case triable by a Magistrate as a summons case, the investigation is not concluded within a period of six months, or

(ii) any case exclusively triable by Court of Session or a case under chapter XVIII of the Indian Penal Codes (45 of 1860), the investigation is not concluded within period of three years, or (iii) any case other than those mentioned in clauses (i) and (ii), the investigation is not concluded within a period of two years,

from the date on which the accused was arrested or made his appearance, the Magistrate shall make an order stopping further investigation into the offence and shall discharge the accused unless the officer making the investigation satisfies the Magistrate that for special reasons and in the interest of justice the continuation of the investigation beyond the periods mentioned in this sub-section is necessary.”;

(2) in sub-section (6) after the words “any order stopping further investigation into an offence has been made” the words “and the accused has been discharged” shall be inserted.

(II) The following amendments was made by WB Act 20 of 2004,—

Section 167.—In its application to the state of West Bengal, in the proviso to sub-section (2) of section 167 of the principal Act, for clause (b) the following clause shall be substituted:—

“(b) no Magistrate shall authorise detention under this section—

(i)

in the police custody, unless the accused is produced before him in person every time till the accused is in police custody;

(ii) in the judicial custody, unless the accused is produced before him either in person or through the medium of electronic video linkage.”. [Vide W.B. Act 20 of 2004]. COMMENTS [s 167.2] Changes.— Section 167 corresponds to old section 167 with the following changes :

(1) In sub-section (1), the word “Judicial” has been inserted. (2) In sub-section (2), provisos (a) and (b) have been added, old proviso has been numbered (c) substituting “High Court” for “State Government” and an Explanation has been added. Proviso (a) has again been substituted by 1978 Amendment, See below.

Page 11 of 39 [s 167] Procedure when investigation cannot be completed in twenty-four hours.—

(3) Sub-section (4) has been substituted for old sub-section (4). (4) Sub-sections (5) and (6) have been added.

Material changes introduced are:

(1) Power has been given only to judicial Magistrate. (2) A new power has been conferred on the Magistrate to extend the period of detention beyond 15 days when he is satisfied that adequate grounds exist for granting such extension subject to two restrictions (i) total period of detention in custody should not exceed 60 days, and (ii) detention must not be in police custody. (3) A further provision has been made that on the expiry of the period of 60 days, the Magistrate shall release the accused on bail, if he is prepared to and does furnish bail. (4) Physical production of the accused before the Magistrate has been made statutorily obligatory before he can be remanded to custody by the Magistrate; and in order that this provision is not evaded, an explanation has also been added making it clear that physical production of the accused can be proved by the signature of the accused on the order of detention. (5) If investigation is not completed within a period of 6 months from the date on which the accused was arrested, it has also been provided that in a case which is triable as a summons case the Magistrate shall pass order stopping further investigation and discharging the accused unless the investigating officer satisfies the Magistrate that there are special reasons for the continuance of investigation in interest of justice,—Subject, however, to the power of the Sessions Judge to direct recommencement of the said stopped investigation [vide sub-sections (5) and (6)]. [s 167.2.1] 1978 Amendment.— (1) Proviso (a) has been substituted. (2) Explanation I has been added and former Explanation I has been renumbered as Explanation II. (3) Sub-section (2A) has been newly added.

By amendment of proviso (a) power has been conferred to authorise detention for total period of ninety days where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for term of not less than 10 years instead of a total period of 60 days in all cases.

Added Explanation I clarifies that after the expiry of the period of detention in para (1) the accused will remain in detention if he fails to furnish bail.

Added sub-section (2A) empowers the Executive Magistrate invested with powers of Judicial or Metropolitan Magistrates to make an order for remand for a total period not exceeding seven days when a judicial Magistrate is not available. The period of detention ordered by the Executive Magistrate will naturally be taken into account in computing the total period of ninety days or sixty days, as the case may be, specified in provision (a). This amendment has been made due to the shortage of judicial Magistrates in remote areas. [s 167.2.2] CrPC (Amendment) Act, 2008 (5 of 2009) .—

Page 12 of 39 [s 167] Procedure when investigation cannot be completed in twenty-four hours.— Vide this Amendment Act following amendments have been made in sub-section (2) of section 167.

Firstly, in clause (b), a new clause has been substituted. Secondly, for the existing Explanation II, a new Explanation II has been substituted. Thirdly, after Explanation II, a new proviso has been inserted.

Section 167 relates to procedure when investigation cannot be completed in 24 hours. No Magistrate shall authorize detention of the accused in custody of the police under this section unless the accused is produced before him in person for the first time and subsequently every time till the accused remains in the custody of the police. Clause (b) of proviso to sub-section (2) of section 167 has been amended in order to make provision for the magistrate to extend further detention in judicial custody of the accused also through the medium of electronic video linkage except for the first time where the production of the accused is required in person. New proviso to the said sub-section (2) provides that in the case of a woman under eighteen years of age, the detention shall be authorized to be in the custody of a remand home or recognised social institution [vide Notes on Clauses, Clause 16]. [s 167.3] Scope and application of section 167.— It appears from section 57 and the opening words of this section that it is contemplated that after a person is arrested without warrant, an investigation by the police ought to be completed within 24 hours. When (i) the investigation cannot be completed within twenty-four hours (section 57), and (ii) there are grounds to believe that the charge is well founded it is obligatory upon the investigating officer, under section 167, to produce the accused with a copy of his diary (under section 172) before the nearest Judicial Magistrate (with or without jurisdiction) for a remand to custody to enable him to continue or complete the investigation. Production before the Magistrate within 24 hours of arrest is now a fundamental right (Article 22 of the Constitution). Police officer failing to produce a person before a Magistrate within 24 hours of arrest is guilty of wrongful detention [Sharifbai Mehmoob v Abdul Razak, AIR 1961 Bom 42 : 1961 (1) Cr LJ 228 : 62 Bom LR 816]. The policy is that detention in police custody should be allowed only in special cases [Jai Singh, (2001) 1 SCC 596 : 2000 (4) Crimes 171 1932 O 11] and that the accused should be brought before the magistrate competent to try or commit with as little delay as possible [Engadu, 11 M 98; Nagendra, 51 C 402]. Further, police detention is not to be allowed as a matter of course. If upon perusing the diary and considering such other facts as may be placed, the Magistrate is satisfied that further detention is really necessary for purpose of investigation, he can direct detention by remand order from time to time for not more than fifteen days in the whole recording his reasons [see Khairati, 32 Cr LJ 913 : AIR 1931 L 476]. Routine remand is deprecated [Re Madhu Limaye, AIR 1969 SC 1014 : 1969 Cr LJ 1440 (SC); Sehhadat Khan v State, AIR 1965 Tri 27 : 1965 (2) Cr LJ 139 ]. If on the other hand the Magistrate thinks that the facts are such that no more detention in custody is necessary for investigation, he may discharge the person. In section 59 “special order is necessary” refers to sections 167 and 57.

Section 173 deals with the report of police officer on completion of investigation while sub-section (2) of section 173 provided that when investigation of any case is completed the officer in charge of police station shall forward to a Magistrate empowered to take cognizance of offence on a police report when once the chargesheet has been submitted the provisions of section167, Code of Criminal Procedure, 1973 does not apply [Himmat Singh v State of Rajasthan, 1995 Cr LJ 2967 (Raj)].

There was sufficient evidence against accused to suspect that he had committed the offence. Accused was arrested in another case which was pending against him. Held, remand ought to have been granted under section 309, Code of Criminal Procedure, 1973 and it was not necessary to move an application under section 167 for remand of accused [UOI v Devendra Mishra, 2008 Cr LJ (NOC) 914 (All) : 2008 (61) All Cri C 566 : 2008 (2) All Cri R 1682].

Where investigation has been completed, a different situation, which is not contemplated under section 167(5), Code of Criminal Procedure, 1973 emerges, but, if criminal case is kept pending for a very long time without any just cause thereby seriously affecting the guarantee under Article21 of the Constitution against deprivation of personal liberty. [Durgesh Chandra Saha v Bimal Chandra Saha, AIR 1996 SC 740 : 1996 Cr LJ 1137 : (1996) 1 SCC 341 : 1996 SCC (Cri) 109 ].

Page 13 of 39 [s 167] Procedure when investigation cannot be completed in twenty-four hours.—

When the accused is not yet in judicial custody of trial court then his bail application not maintainable. [Hafiz Afzal v UOI, 2002 Cr LJ 141 : 2001 All LJ 2132 : (2001) 43 All Cr C 731 (All)].

When complaint disclosing completion of investigation making out case against accused then accused not entitled to be release on bail under section 167 of Code. [Hafiz Afzal v UOI, 2002 Cr LJ 141 : 2001 All LJ 2132 : (2001) 43 All Cr C 731 (All)].

When allegations in FIR and gist of evidence in forwarding report clearly sustained accusation then unreasoned order of remand not unjustified. [Ghanshyam Narayan Singh (Dr.) v State of Bihar, 2001 Cr LJ 2811 : 2000 (3) Pat LJR 775 : 2000 (3) East Cr C 1555 (Pat)].

Extension of period of police remand for seven days after expiry of first 15 days period is not valid. [Budh Singh v State of Punjab, 2001 AIR SCW 2270 : 2001 Cr LJ 2942 : (2000) 9 SCC 266 (SC)]. [s 167.4] Application of mind.— When under section 167 the magistrate considers that further detention is necessary for investigation, he is required to apply his judicial mind to determine whether the circumstances justify detention of the accused in police custody, or he should be placed in judicial custody. Police custody being an infringement of liberty should not be ordered as a matter of course as the law has for his protection provided for the compulsory production of a person before a magistrate within 24 hours of his arrest and this constitutional right has been given “to prevent arrest and detention with a view to extract confession” and “to afford an early recourse to a judicial officer independent of the police on all questions of bail or discharge (See observations of Rankin J in Md Suleman, 30 Cal WN 985, 987 quoted under section 61 (now section 57 ante and see also Bir Bhadra Pratap Singh v DM Azamgarh, AIR 1959 All 384 : 1959 Cr LJ 685 : 1959 All LJ 50 : 1959 All WR 79). Section 167 has given him full discretion to order detention in such custody as such Magistrate thinks fit. If detention in police custody is ordered, he must record his reasons under sub-section (3).

During the course of investigation of a case, an accused can be kept in detention beyond a period of 24 hours only when it is authorised by the Magistrate in exercise of power under section 167, Code of Criminal Procedure, 1973. The power to authorise detention is a very solemn function. It affects the liberty and freedom of citizens and needs to be exercised with great care and caution. In many of the cases, detention is authorised in a routine, casual and cavalier manner. Before a Magistrate authorises detention under section 167 he has to be first satisfied that the arrest made is legal and in accordance with law and all the constitutional rights of the person arrested is satisfied [Arnesh Kumar v State of Bihar, AIR 2014 SC 2756 : 2014 (8) Scale 250 : (2014) 8 SCC 273 ].

An accused cannot be in magisterial custody in one case under section 344 (now section 309) and before a magistrate in police custody in another case under section 167 [Dhaman, AIR 1937 SC 251 ].

The Magistrate concerned is always empowered to refuse the remand to add some more offence or delete some offence. The order authorising the detention of the accused in the custody is a judicial order and it has to be passed after applying judicial mind. In any way it does not amount to interference with the investigation of the case [Sanaul Haque v State of UP, 2008 Cr LJ 1998 (2002) (All) : 2008 (2) All LJ 778 : 2008 (60) All Cri C 276 : 2008 (1) All Cri R 981].

Cases relating to land dispute under sections 420/406, Indian Penal Code were registered against accused who was medically fit in all respects. Magistrate also noticed that there was no order of Civil Court about ownership of land under dispute. He after verifying all the records in details applied his mind and remanded accused to police custody. It was held that order of remand was not liable to be quashed [Bharat Inder Singh Chahal v State of Punjab, 2007 Cr LJ 4490 (P&H) : 2007 (3) RCR (Criminal) 977]. [s 167.5] Arrest by Magistrate.—

Page 14 of 39 [s 167] Procedure when investigation cannot be completed in twenty-four hours.— A Magistrate arresting a person under section 44 does not act as a “Court”. It is an arrest without warrant. His detention beyond 24 hours would be illegal if a remand order to custody is not obtained under section 167 by producing him before another Magistrate. The former Magistrate cannot apply a judicial mind as he has himself caused the arrest [Swami Hariharanand Saraswati v The Jailor I/C Dist Jail, AIR 1954 All 601 : 1954 Cr LJ 1317 : 1954 All LJ 355 relying on State of Punjab v Ajaib Singh, AIR 1953 SC 10 : 1953 SCR 254 : 1953 Cr LJ 180 ]. When the Magistrate is himself a witness to the incident, he is incompetent to decide the question of a remand as he cannot bring a judicial mind [Bir Bharda Pratap Singh v DM Azamgarh, AIR 1959 All 384 : 1959 Cr LJ 685 : 1959 All LJ 50 : 1959 All WR 79].

A Magistrate receiving a complaint can report to the police who can take action under section 167. But the Magistrate has not the power of a police officer to investigate and keep an accused in custody for such investigation [Anand, 52 A 457 : AIR 1950 A 259].

For the changes made in section 167 in 1978 (see Satyanaraya v State of AP, AIR 1986 SC 2130 , (affirming Public Prosecutor, High Court of AP v Chaganti Satyanarayana, 1986 Cr LJ 1134 : 1986 (2) Crimes 609 : 1986 (1) Andh LT 150 (AP)) which discusses the amendment of 1978. For other sections authorising remand, See sections 209 (b) and 309 (2) and State of UP v Lakshmi Brahman, AIR 1983 SC 439 : 1983 Cr LJ 839 : (1983) 2 SCC 372 : 1983 (1) Crimes 797 .

For the relationship between sections 167 and 309 [see Natabar v State of Orissa, AIR 1975 SC 1465 , 1467 : 1975 Cr LJ 1212 : (1975) 2 SCC 220 (SC); Ramesh Kumar Ravi v State of Bihar, 1987 Cr LJ 1489 : 1987 Pat LJR 650 : 1987 BLJR 54 (Pat) (FB)]. [s 167.6] Constitutional requirements.— The impact of constitutional provisions particularly Articles21, 22 and 39A of the Constitution have been dealt with, in the undermentioned decisions:

(i)

Hussainara Khatoon v Home Secretary, State of Bihar, AIR 1979 SC 1360 : (1980) 1 SCC 93 : 1927 Cr LJ 1036 .

(ii) Hoskat v State of Maharashtra, AIR 1978 SC 1548 : 1978 CriLJ 1678 . (iii) Suk Das v UT of Arunachal Pradesh, AIR 1986 SC 991 : 1986 Cr LJ 1084 : (1986) 2 SCC 401 : 198 (2) Crimes 40 (SC).

See PM Bakshi, Selective Commentary on the Constitution of India, 1995. [s 167.7] Meaning of arrest.— In section 167, “arrest’

(a) includes voluntary surrender, according to one review [Jaganuathan v State, 1983 Cr LJ 1748 : 1983 Mad LW (Cri) 250 (Mad)]. (b) does not include voluntary surrender according to the contrary view [Jay Sankar Jha v State, 1982 Cr LJ 744 : (1982) 86 Cal WN 242 : 1982 (1) (Cal— DB)]. [s 167.8] Safeguards in arrest.—

Page 15 of 39 [s 167] Procedure when investigation cannot be completed in twenty-four hours.— In Joginder Kumar v State of UP, AIR 1994 SC 1349 : 1994 Cr LJ 1981 : (1994) 4 SCC 260 : 1994 (2) Crimes 106 (SC), the Supreme Court while condemning indiscriminate arrests laid down guidelines as to arrest and action by the police thereafter; Prayag Dev Singh v State of UP, 2009 Cr LJ (NOC) 73 : 2008 (6) ALJ 137 (AllDB).

In Arvinder Singh Bagga v State of UP, AIR 1995 SC 117 : 1994 (3) Crimes 694 : (1994) 6 SCC 565 : JI (1994) 6 SC 478 (SC)] the Supreme Court directed the District Judge, Bareily, UP to inquire into illegal arrest and torture. [s 167.9] Legal assistance.— Proceedings under section 167 fall within section 303 and an accused is entitled to have interviews with legal advisers while in the police custody and also to have food and clothing supplied by relatives [Sundar, AIR 1930 L 945; Amolak, AIR 1932 L 13 : 32 Cr LJ 1022; Evans, 50 B 74]. See now Article 22 (1) of the Constitution and notes under section 303, post, and also under section 164 supra. [s 167.10] Power of remand.— Section 167 is the sole repository of the magistrate’s power of remand during investigation. Greatest care must be taken to see that no accused is unnecessarily put in custody and subjected to undue influence or physical or mental torture. Once the accused is released on bail, the Magistrate ceases to have jurisdiction to commit him to police custody again [Chadayam Makki Nandanan v State of Kerala, 1980 Cr LJ 1195 : 1980 Ker LT 414 : 1980 Mad LJ (Cri) 726 (Ker)]. Court has no inherent power of remand of an accused to any custody unless the power is conferred by law [Natabar v State of Orissa, AIR 1975 SC 1465 : 1975 Cr LJ 1212 : (1975) 2 SCC 220 ].

The magistrate is fully empowered to grant remand under proper sections after perusal of the case diary and applying its judicial mind ignoring the prayer made by investigating officer in remand application. Granting remand under section 167, Code of Criminal Procedure, 1973 in proper sections on the basis of the material available in the case diary would not tantamount to interference in investigation. [Vakeel Ahmad v State of UP, 2010 Gur LJ 2256 (2258) (All)].

Remand of accused to police custody only at instance of complainant, private party not permissible. [Jagat Narain Pandey v State of UP, 2002 Cr LJ 120 : 2001 All LJ 2261 : (2001) 43 All Cr C 642 (All)].

At the stage of remand Magistrate is not required to look into any material other than police records and its case diary. Order making out offence under section 308, Indian Penal Code, 1860 not prayed for by investigating agency liable to be set aside [Ataullah v State of UP, 2007 Cr LJ NOC 61 : 2006 (6) ALJ 6 (All)]. [s 167.11] Extension of time.— Remand order under section 167 is a judicial order. It has to be passed on application of mind to the contents of the remand report submitted by the Investigating officer. The order should reflect application of mind and extension of remand in consequence thereof. The order should certain reasons for extending remand order [T Jagdeeswar v State of AP, 2003 Cr LJ 701 : 2002 (2) Andh LT (Cri) AP 297 : 2003 (1) DMC 195 (AP)]. [s 167.12] Application for extension of time for investigation—Application for release on bail.— The order of extension of time based on report submitted by a person, who is not lawfully authorised, apart from the fact that such extension was granted long after the accused approached the Court for statutory bail invoking default clause and was ready to furnish bail bond. Accordingly, the order of extension of time as well as the rejection of the appellant’s prayer for bail consequent upon extension of time cannot be sustained and is set aside. [Saraswati Rai v UOI, 2011 Cr LJ 3020 (3035) (Cal) : 2011 (4) CHN 324 ]. [s 167.13] Magistrate’s function judicial.— The presumption is that the exercise of power expressly by judicial magistrates under the Code would normally be judicial, and only the clearest indication to the contrary would be necessary to hold that it is executive in nature. For the exercise of jurisdiction under section 167, the Magistrate is obliged to apply his mind to the

Page 16 of 39 [s 167] Procedure when investigation cannot be completed in twenty-four hours.— materials produced before him [Kashmir Singh v State of Punjab, 1984 Cr LJ 51 : 1984 (1) Chand LR (Cri) 70 : ILR (1984) 1 P&H 340 P&H 340]. [s 167.14] Scheme of Sections 167, 209 and 309.— There are two provisions in the Code which provide for remand, i.e., sections 167 and 309. The Magistrate has the authority under section 167(2) of the Code to direct for detention of the accused in such custody, i.e., police or judicial, if he thinks that further detention is necessary. The act of directing remand of an accused is fundamentally a judicial function. The magistrate does not act in executive capacity while ordering the detention of an accused. While exercising this judicial act, it is obligatory on the part of the magistrate to satisfy himself whether the materials placed before him justify such a remand or, to put it differently, whether there exist reasonable grounds to commit the accused to custody and extend his remand. The purpose of remand as postulated under section 167 is that investigation cannot be completed within 24 hours. It enables the Magistrate to see that the remand is really necessary. This requires the investigating agency to send the case diary along with the remand report so that the magistrate can appreciate the factual scenario and apply his mind whether there is a warrant for police remand or justification for judicial remand or there is no need for any remand at all. It is obligatory on the part of the magistrate to apply his mind and not to pass an order of remand automatically or in a mechanical manner [Manubhai Ratilal Patel Tr Ushaben v State of Gujarat, AIR 2013 SC 313 : (2013) 1 SCC 314 : 2013 Cr LJ 160 (SC)].

The scheme of the provisions in sections 167, 209 and 309 is that while section 167 provides for detention during the pendency of investigation, section 209 provides for detention during pendency of commitment proceedings and section 309(2) provides for detention during pendency of trial or inquiry [Benimadhava v State of Rajasthan, 1983 Cr LJ 633 : 1982 Raj LW 442 : 1982 Raj Cr C 145 (Raj)].

After the filing of the police report under section 170 the proceedings before the Magistrate till the commitment is made under section 209 would be an enquiry under section 2(g) and although section 167(2) ceases to apply the Magistrate can remand the accused under section 309. The view of the High Court that there being no power to remand, bail has to be granted is erroneous [State of UP v Lakshmi Brahman, AIR 1983 SC 439 : 1983 Cr LJ 839 : (1983) 2 SCC 372 : 1983 (1) Crimes 797 (SC)].

After police report was submitted, merely because it was not accompanied by report of experts like chemical examiner and serologist, the provisions of section 167(2) could not be attracted either for the purpose of granting further remand or releasing the accused on bail [State of HP v Guddu, 1983 Cr LJ 402 : 1982 Sim LC 348 : 1983 (1) Chand LR (Cri) 527 (HP) (State of Hayana v Mehal Singh, AIR 1978 P&H 341 : 1978 Cr LJ 1810 : (1978) 80 Punj LR 480 followed and not impliedly overruled by Satyanarain Musadi v State of Bihar, AIR 1980 SC 506 : 1980 Cr LJ 227 : (1980) 3 SCC 152 (SC)]. [s 167.15] Sub-section (1): Any person arrested and detained in custody.— Section 167 applies to arrest under section 151 or section 41 [Chakkappan v State of Kerala, AIR 1960 Ker 297 : 1960 Cr LJ 1212 (2) : 1960 Ker LT 460 : 1960 Ker LJ 463 ; AKGopalan v State of Kerala, AIR 1962 Ker 215 : 1962 (2) Cr LJ 72 : 1962 Ker LT 17 : ILR (1962) 1 Ker 566 ; Janardan Prasad Roy v State of Bihar, AIR 1968 Pat 22 : 1968 Cr LJ 75 : 1967 BLJR 37 ]. When a person voluntarily surrenders to the court the magistrate has no power to commit him to custody and must be released on bail under section 439 [Ram Chandra v State of UP, 1977 Cr LJ 1783 : 1977 All Cr C 275 : 1977 All WC 485 (All); (Kedar v State, 1977 Cr LJ 1230 : 1977 All Cr C 141 : 1977 All WC 205 (All) followed and Natabar v State of Orissa, AIR 1975 SC 1465 : 1975 Cr LJ 1212 : (1975) 2 SCC 220 relied on)]. If he has voluntarily surrendered to judicial custody, a remand to police custody at the instance of the police under section 167 cannot be made [State of Gujarat v Patel Pramukhlal Gordhandas, 1975 Cr LJ 324 : (1974) 15 Guj LR 174 (Guj); (Velu Viswanathan v State, 1971 Cr LJ 725 : 1971 Ker LT 80 : 1971 Mad LJ (Cri) 13 (Ker) and State of AP v Golla Ramulu, 1971 Cr LJ 1368 : 1971 (2) Andh WR 1 : 1971 Mad LJ (Cri) 385 (AP) dissented); Kedar v State, 1977 Cr LJ 1230 : 1977 All Cr C 141 : 1977 All WC 205 (All)]. [s 167.16] Copy of diary.— Transmission of a copy of the diary is mandatory. It enables the Magistrate to decide whether further detention is necessary. Failure to send copy leads to the inference that diary had not then come into existence [Re Burla Jayarami Reddi, AIR 1957 AP 561 : 1957 Cr LJ 1062 : 1956 Andh WR 347]. The Magistrate is to decide judicially on the materials in the diary whether or not detention of the accused is necessary [Bir Bhadra Pratap

Page 17 of 39 [s 167] Procedure when investigation cannot be completed in twenty-four hours.— Singh v DM Azamgarh, AIR 1959 All 384 : 1959 Cr LJ 685 : 1959 All LJ 50 : 1959 All WR 79]. It would be a dereliction of duty if the Magistrate did not peruse the case diary before authorising any type of custody [Trilochan Singh v State (Delhi Admn), 1981 Cr LJ 1773 : 1981 Raj LR 635 (Del)]. As to what the diary should contain, see notes to section 172. [s 167.17] Sub-section (2): “Magistrate to whom an accused is forwarded”.— The Magistrate to whom the accused is brought for remand may or may not have jurisdiction to try the case [Sitao, AIR 1943 N 36; Bal Krishna, 33 Cr LJ 180; Ismail v Emperor, AIR 1946 Sind 43 : (1946) 47 Cr LJ 548 ]. If possible, it is better to produce before the magistrate having jurisdiction, for if further investigation be necessary he may now under proviso (a) of sub-section (2) further remand him up to 60 or 90 days, as the case may be, though only to judicial custody. In a case, it has been held that the practice of obtaining a remand from any Magistrate at the choice of police is objectionable and in the absence of special reasons the Magistrate having jurisdiction should be approached [Bal Krishna, AIR 1931 L 99]. Remand to custody during police investigation is not a mechanical act to be granted merely at the desire of the police. The statute casts a heavy duty on the Magistrate and requires exercise of judicial discretion depending on the satisfaction of the Magistrate. Absence of case diary and a day to day report of the investigation showing existence of prima facie material against the accused which is the foundation creates a very peculiar situation [Rajanikanta Mehta v State of Orissa, 1975 Cr LJ 83 : (1974) 40 Cut LT 922 (Ori)].

On production of the arrested person by the police officer who effected arrest, before the Magistrate, it is open to the Magistrate under sub-section (2) of section 167, Code of Criminal Procedure, 1973 to authorize detention of the accused person to such custody as such Magistrate thinks fit for a prescribed term. Such authorized custody by the Magistrate may be custody of the accused in prison by way of judicial remand or custody of the person to the police by way of police custody. Without such authorization from the magistrate under section 167(2), Code of Criminal Procedure, 1973 the police officer who arrested the accused person cannot keep the accused person in his custody either in police station or in his house or in a hospital or in any other place [Matang Singh v CBI, CRR No 637 of 2015 decided on 7 May 2015 (Cal)].

Application for statutory bail to be decided on the same date [UOI through CBI v Nirala Yadav, AIR 2014 SC 3952 ].

The police report was filed within 90 days. The magistrate took cognizance of the offence and the same was not challenged. Therefore, the plea by accused that the police report filed was not as per requirement under sections 173(2) and (5) which entitled him for default bail was not tenable. [Narendra Kumar Amin v CBI, AIR 2015 SC 1002 : 2015(1) Scale 427 ].

The discretion under section 167(2), Code of Criminal Procedure, 1973 cannot be exercised at the instance of the complainant [Jagat Narain Pandey v State of UP, 2002 Cr LJ 120 (124) (All) : 2001 All LJ 2261 : (2001) 43 All CrC 642].

If there is no request for remand or the magistrate finds that there are not sufficient grounds for extension of remand, the magistrate must inform the accused that he can be released, provided he furnishes bail [G Shrawan Kumar v State of AP, 2002 Cr LJ 2997 (3001) (AP) : 2002 (2) Andh LT (Cri) 16 ].

When the accused is for the first time produced before the Magistrate he needs competent legal advice and representation to apply for bail and obtain his release as also to resist remand to police or jail custody and the Magistrate is under an obligation to inform him that if he is unable to engage a lawyer on account of poverty or indigence, he is entitled to obtain free legal services at the cost of the State [Khatri v State of Bihar, AIR 1981 SC 928 : (1981) 1 SCC 627 : 1981 Cr LJ 470 (SC); (Hussainara Khatoon v Home Secretary, State of Bihar, AIR 1979 SC 1369 : 1979 Cr LJ 1045 : (1980) 1 SCC 98 followed)].

Where charge sheet has been submitted beyond the statutory period but the prayer for grant of bail is being considered after submission of such charge sheet then the stage of applicability of section 167(2) proviso is

Page 18 of 39 [s 167] Procedure when investigation cannot be completed in twenty-four hours.— over. With submission of charge sheet an inquiry shall be deemed to have commenced. As such there is no question of lack of power in the Magistrate to remand such an accused. He can grant remand in exercise of power under section 309(2). Of course, if the prayer for bail is considered after the expiry of statutory period and before the submission of charge sheet, there is no option with the Magistrate but to grant bail. [Nawal Sahni v State of Bihar, 1989 Cr LJ 733 : 1988 Pat LJR 565 : 1988 BLJR 639 : 1988 East Cr C 586 (Pat—DB); see also Chander Pal v State of UP, 2011 Cr LJ 1124 (All)].

The right to statutory bail under section 167(2) [as amended by the Unlawful Activities (Prevention) Act, 1967] gets extinguished on filing of charge sheet. But the charge sheet must be filed before application for statutory bail is made. A three-Judges’ Bench of the Supreme Court held that filing of charge sheet during the pendency of the application for statutory bail does not affect the right of the accused to bail [Syed Mohd Ahmad Kazmi v State, GNCTD, AIR 2013 SC 152 : 2013 Cr LJ 200 (SC) : (2012) 12 SCC 1 ].

In a case, pursuant to FIR recorded by local police, the investigation was conducted and charge-sheet was filed within the stipulated period. However, the investigation so conducted was not accepted by the Supreme Court and fresh investigation by CBI was ordered. The CBI recorded a fresh FIR. The petitioner claimed bail on the ground of default in submitting charge-sheet due to rejection of the first investigation. It was held by the Supreme Court that merely because further investigation has been ordered, it does not mean that the chargesheet submitted earlier, gets abandoned [Vipul Shital Prasad Agarwal v State of Gujarat, AIR 2013 SC 73 : (2013) 1 SCC 197 : 2013 Cr LJ 336 . (Three-Judges’ Bench)].

As the Customs Act, 1962 contains no provisions as to remand and bail, section 4(2), Code of Criminal Procedure, 1973 comes into operation and section 167 becomes applicable and the Magistrate is competent to consider the question of release on bail and remand in respect of offence under section 167. The object of production of the accused is not merely to authorise detention but also to prevent abuse by investigating agency [Senior Intelligence Officer v MKS Alen Bucker, 1990 Cr LJ 704 : 1989 Mad LW (Cri) 325 : (1989) 23 ECC 242 (Mad) (Arunachalam J)].

The first spell of remand under section 167(1) is limited to 15 days. Once that stage is reached, section 167(2) is to be resorted to. But in that case special grounds for extending remand beyond 15 days must be recorded. If the grounds are not so recorded, the extension has to be treated for 15 days only as contemplated by section 167(1) and there is no scope for remanding the petitioners for 15 days again as the total period would exceed the maximum (15 days) contemplated by section 167(1) [GK Moopanar v State of TN, 1990 Cr LJ 2685 : 1990 Mad LW (Cri) 113 (Mad—DB)].

The limitation of 15 days provided under section 167, Code of Criminal Procedure, 1973 for change from judicial custody to police custody and vice versa would apply only when the accused is in custody and not otherwise [Narendra Mann v State (NCT of Delhi), 2002 Cr LJ 823 (825) : (2001) 94 DLT 107 : 2001 (2) Copy TR 474].

“Sword of Damocles” should not hang over the head of the accused for an indefinite period—Prolongation of trial beyond 15 years from the date of offence violates constitutional right to speedy trial under a fair, just and reasonable procedure recognised under Article 21. The accused was entitled to be released from travail of prosecution [Mihir Kumar Ghose v State of WB, 1990 Cr LJ 26 : 1989 (3) Crimes 436 : 1989 (1) Cal HN 538 : 1989 Cal CrLR 264 (Cal) (Shyamal Kumar Sen J)].

Where a person is produced before a Magistrate in accordance with section 104 of the Customs Act and section 35 of Foreign Exchange Regulation Act, the magistrate has no power to commit the person to custody under section 167(2), Code of Criminal Procedure, 1973. section 437 of the Code also does not confer any implied power of remand in case the bail application is rejected.

The word “remand” does not occur either in section 167(2) or in section 437 of the Code. It occurs in section

Page 19 of 39 [s 167] Procedure when investigation cannot be completed in twenty-four hours.— 309. The word “remand” connotes “a re-committal to custody of a person who has been brought up in custody”. The period of police custody for 24 hours authorised under section 57 having lapsed, the special order authorising detention by the police cannot be said to mean “re-committal to police custody” [Deepak Mahajan v Director of enforcement, 1991 Cr LJ 1124 : (1990) 2 DL 150 : (1991) 31 ECC 104 (Del) (full bench of five Judges)].

The Magistrate can under section 167(2) authorise the detention of the accused in such custody as he thinks fit but it should not exceed fifteen days in the whole. The custody can be police custody or judicial custody as the Magistrate thinks fit. The words “such custody” and “for a term not exceeding fifteen days in whole” are very significant [CBI v Anupam J Kulkarni, AIR 1992 SC 1768 : 1992 Cr LJ 2768 : (1992) 3 SCC 141 : 1992 (2) Crimes 310 (SC)].

Bail granted under section 167(2), Code of Criminal Procedure, 1973 after the challan has been filed is not proper and the order granting bail is unsustainable and deserves to be recalled [Matlub v State, 2006 Cr LJ 1102 (1103–1104) (Raj)].

When accused was sent to judicial custody pursuant to a valid order made during investigation, such order did not become illegal consequent upon submission of the charge sheet, and for that matter upon taking cognizance. Secondly, when the accused was remanded to custody by a warrant issued by the Magistrate, absence of formal order of remand under section 309(2) would not make the remand illegal [The State v Md Samin, 1991 Cr LJ 1691 : 1991 (1) Cal HN 268 : 1991 Cal CrLR 90 (Cal—DB)].

The accused were charged with murder. Charge sheet was filed after expiry of 90 days. On the default committed by the prosecution in filing report within the statutory period, the Magistrate did not pass an order releasing the accused on bail or communicate the same requiring them to produce sureties. The accused were incarcerated in prison, on and from the date of their arrest till up to date. Moreover, the case was admittedly pending before the Court of Session and was quite ripe for trial. In such circumstances the accused should have been deemed to have been released on bail [Sankar v State, 1991 Cr LJ 1745 (Mad)].

Where a person is produced before a Magistrate in accordance with section 104 of the Customs Act, 1962 and section 35 of the Foreign Exchange Regulation Act, 1973 the Magistrate has no power to commit the person to custody under section 167(2), Code of Criminal Procedure, 1973, section 437 of the Code also does not confer implied power of remand in case the application for bail is rejected [Deepak Mahajan v The Director of Enforcement, 1991 Cr LJ 1124 : (1990) 2 DL 150 : (1991) 31 ECC 104 (FB)].

The powers of investigation conferred on the authorities under the Narcotic Drugs and Psychotropic Substances Act are as comprehensive and wide as those of Police officers, though they are not Police officers in the strict sense of the term.

It is not correct to say that section 167 contemplates only two types of custodies, police custody and judicial custody and therefore, once the person is allowed to be detained in judicial custody, he cannot be placed in any other custody. Section 167(2) enables the Magistrate to authorise detention in such custody as he thinks fit [BS Rawal v Mohd Azam Khan, 1991 Cr LJ 820 : 1990 Mah LJ 582 : 1990 (3) Rec Cr R 387 Bom].

The rules in the Jail Manual applicable to superior and ordinary classes of convicts are attracted to the under trial prisoners as well. This will necessarily bring in the application of all the rules of the transfer of convicts from one prison to another. Therefore, there would be nothing illegal in the transfer order of the detenues, from one jail to another issued by the Inspector General of Prisons for temporary accommodation to avoid overcrowding [Balram Singh Yadav v State of UP, 1991 Cr LJ 903 : 1991 All LJ 322 : 1991 All WC 102 (All-DB)].

In one occurrence, it may so happen that the accused might have committed several offences and the police

Page 20 of 39 [s 167] Procedure when investigation cannot be completed in twenty-four hours.— may arrest him in connection with one or two offences on the basis of the available information and obtain police custody. If during the investigation his complicity in more serious offences during the same occurrence is disclosed, that does not authorise the police to ask for police custody for a further period after the expiry of the first 15 days. If that is permitted, then the police can go on adding some offence or the other of a serious nature at various stages and seek further detention in police custody repeatedly. This would defeat the very object underlying section 167. However, this limitation shall not apply to a different occurrence in which complicity of the arrested accused is disclosed. A literal construction of section 167(2) to the effect that a fresh remand for police custody of a person already in judicial custody during investigation of a specific case cannot, under any circumstances, be issued, would seriously hamper the investigation of the other case, the importance of which needs no special emphasis. The procedural law is meant to further the ends of justice and not to frustrate the same [CBI v Anupam J Kulkarni, AIR 1992 SC 1768 : 1992 Cr LJ 2768 : (1992) 3 SCC 141 : 1992 (2) Crimes 310 (SC)].

Since an illegal detention may be legalised subsequently by passing a valid remand order plea that right of bail once accrued cannot be defeated by subsequent remand not tenable. [Sunil Singh v State of Bihar, 2001 Cr LJ 3681 : 2000 (2) Pat LJR 488 : 2000 (3) East Cr C 1486 (Pat)].

In the case of an offence under section 304B, Indian Penal Code, 1860 the permissible period for filing challan is 90 days. Bhupinder Singh v Jarnail Singh, 2006 Cr LJ 3621 (3624) (SC) : AIR 2006 SC 2622 : (2006) 6 SCC 277 : 2006 (3) Crimes 138 .

When charge-sheet is not filed within period of 90 days then accused is entitled to be released on bail as subsequent filing of charge-sheet on same day is of no consequence. [Babubhai B Kachdiya v State of Gujarat, 2001 Cr LJ 3876 : 2001 (3) Guj LH 590 : 2001 (4) Rec Cr R 733 (Guj)].

The accused was arrested for allegedly committing offence under section 366A, Indian Penal Code, 1860. The maximum punishment for offence under section 366A is ten years and, therefore the case would be governed by section 167(2)(a)(ii) and not under section 167(2)(a) (i). The right under section 167(2) would accrue to accused after his detention for a period of 60 days [Ratan Mandal v State of Jharkhand, 2006 Cr LJ 781 (783) (Jhar) : 2005 (3 ) BLJR 2360 ].

The filling of charge sheet is no bar to seek police remand of the accused arrested. Refusal of remand in police custody by magistrate on ground that accused stood in custody after his arrest is not proper. [CBI v Rathin Dandapath, AIR 2015 SC 3285 ; Appeal CrL nos 3611/2015, date of decision 10 August 2015.].

While considering the questions of right of accused to be released on bail after 90 days and extension of detention of accused after 90 days the Apex Court held that extension thereafter is not permissible if no chargesheet is filed and if charge-sheet is filed further extension ought to be reasoned order. Quintessence of section 167(2) of Code engrafted to protect personal freedom has to be applied to suspension to preserve human dignity and right of speedy trial. [Ajay Kumar Choudhary v UOI, AIR 2015 SC 2389 : 2015 (2) Scale 432 ]. [s 167.18] Detention in custody by remand.— The law views with disfavour detention in police custody and it should not be allowed as a matter of course, but only in special cases when the Magistrate is satisfied for reasons to be recorded that there are substantial grounds [See Kampu, 11 Cal WN 554, 557; Amir Khan, 7 Cal WN 457; Kharirati, AIR 1931 L 476] which may appear from reading the police diary [Narendra, 36 C 166, 171; Mannu, 19 A 390, 404, FB]. Remand for a period not exceeding 15 days is not automatic (as observed in Dukhi v State, AIR 1955 All 521 : 1955 Cr LJ 1305 ), but at every stage the police must satisfy the Magistrate about the existence of sufficient evidence and that further evidence might be obtained on a remand [Artatran Mahasuara v State of Orissa, AIR 1956 Ori 129 : 1956 Cr LJ 909 : 22 Cut LT 351 : ILR (1956) Cut 267 ]. As the magistrate has to decide whether the accused should be detained in custody, information in the diary should be as complete as possible [Monnu, 19 A 390, 405, FB].

Page 21 of 39 [s 167] Procedure when investigation cannot be completed in twenty-four hours.— The magistrate has complete freedom to order detention in any custody “as he thinks fit” (words which do not appear in section 309), i.e., in police custody or judicial lockup [Re MR Venkatraman, AIR 1948 Mad 100 : (1948) 49 Cr LJ 41 : 1947 (2) Mad LJ 202 : 60 Mad LW 499 (2); Amolak, 32 Cr LJ 1022; Behary 7 WR 2], or from one jail to another [Venkataraman, supra]. But under section 167 the magistrate has always to exercise his judicial mind in deciding as to whether the accused should be remanded to custody or not on the materials placed before him [EP Subba Reddy v State, AIR 1969 AP 281 : 1969 Cr LJ 1025 : 1969 (1) Andh LT 174 : 1968 Mad LJ (Cri) 430]. Even direction of detention in jail custody by the magistrate should be after applying his mind to all relevant matters and not be made mechanically as a matter of patently routine order [Re Madhu Limaye, AIR 1969 SC 1014 : 1969 Cr LJ 1440 : (1969) 1 SCC 292 (SC)].

It is plainly contrary to law to detain the accused in jail without producing them before the Magistrate subsequent to their first production and obtaining remand order [Khatri, supra]. Once the accused is remanded to judicial custody he cannot thereafter be remanded to police custody [Trilochan Singh v State, 1981 Cr LJ 1773 : 1981 Raj LR 635 (Del); Gain Singh v State (Delhi Admn), 1981 Cr LJ 100 : (1981) 19 DLT 168 : (1981) 83 Punj LR (D) 85 (Del)]. Where the accused stated before the Court that they had no knowledge or information about the whereabouts of the materials sought to be recorded they could not be directed to police custody for their recovery [MN Sreedharan v State of Kerala, 1981 Cr LJ 119 : 1980 Ker LT 829 : 1981 Mad LJ (Cri) 187 (Ker); TN Jayadeesh v State of Kerala, 1980 Cr LJ 906 : 1979 Ker LT 642 : ILR (1979) 2 Ker 497 (Ker)].

The accused remanded to judicial custody is still open to investigation by the police [Gain Singh v State (Delhi Admin), 1981 Cr LJ 100 : (1981) 19 DLT 168 : (1981) 83 Punj LR (D) 85 (Del)].

As per section 167(2), Code of Criminal Procedure, 1973 Magistrate cannot remand or extent remand of an accused unless the accused is produced before him, not only for the first time but all the times, when extension is required. If this mandatory provision is not followed, extension of custody granted by magistrate is illegal [K Palimiyappan v State of AP, 1999 Cr LJ 3616 (AP)].

The persons arrested during investigation (after cognizance was taken) are also entitled to benefit of section 167 of the Code [State v Dawood Ibrahim Kaskar, AIR 1997 (SC) 2494 : 1997 Cr LJ 2989 : 1997 SCC (Cri) 636 : 1997 (2) Crimes 92 : JT 1997 (5) 651 (SC)].

Since punishment prescribed under section 386, Indian Penal Code, 1860 can be less hence accused not entitled to bail on grounds of non-submission of charge-sheet within period of 60 days [Rajeev Chaudhary v State (NCT of Delhi), AIR 2001 SC 2369 : 2001 (2) Crimes 303 : (2001) 5 SCC 34 : 2001 Cr LJ 2941 (SC)]. [s 167.19] Duration of detention.— Remand must be for a “term”, i.e., a fixed period and not sine die and the term cannot exceed fifteen days in all [Krishnaji, 23 B 32]. The term must be limited as much as possible to what is necessary for the object in view [Kampu, 11 Cal WN 554; Bal Krishna, AIR 1931 L 99; Jai Singh, AIR 1932 O 11]. Detention can be ordered for fifteen days in the whole including one or more remands, i.e., not at a time [Engadu, 11 M 98; Krishnaji supra]. The limit of 15 days is applicable both to the Magistrate with or without jurisdiction in the case [The Superintendent and Remembrancer of Legal Affairs, Govt of WB v Bidhindra Kumar Roy, AIR 1949 Cal 143 : (1949) 50 Cr LJ 231 : 52 Cal WN 865]. Detention after police report that there is no evidence is illegal [Rahu, 43 A 186].

The limit for police custody prescribed under section 167(2) for a period not exceeding 15 days in the whole for investigation applies to a single case and is not attracted when the accused is involved in a series of different cases [State v Abdul Kareem Tyagi, 2004 (3) Crimes 90 (98) (Kant)]. [s 167.20] Detention for specific offences.— An accused was produced for remand. The magistrate took the view that certain provisions of the Indian Penal Code, 1860 were applicable and directed preparation of fair warrant on trial basis. It was held that the order

Page 22 of 39 [s 167] Procedure when investigation cannot be completed in twenty-four hours.— was well within the Magistrate’s powers [Harihar Chaitanya v State of UP, 1990 Cr LJ 2082 (All) (RK Saksena J)]. [s 167.21] Illegality in remand order.— Any illegality in remand order cannot affect the progress of the trial or its decision in any manner [State v NMT Jay Immaculate, AIR 2004 SC 2282 : 2004 SCC (Cri) 1722 : 2004 Cr LJ 2515 (2522) (SC) : 2004 (3) Crimes 136 ]. [s 167.22] Proviso (a) : When investigation is not completed within 15 days in all.— The section contemplates that the investigation will be completed within 15 days in all and the final report will be sent to court by then. Under the old section if the police could not complete the investigation by that time in serious and complicated cases and the Magistrate also on consideration of the diary and the circumstances was of opinion that evidence already obtained raised a reasonable suspicion and further time was necessary for completion of investigation, there was no provision for further remand. Therefore, a practice grew up for police to file an incomplete or preliminary report and to move for remand before the Magistrate having jurisdiction under old section 344 [Now section 309(2)] containing analogous power of remand when further evidence is likely to be obtained, and the Magistrate used to adjourn the proceedings and remand the accused. According to Law Commission, this practice was of doubtful legal validity (vide 41st Report, p 76) and there was also a controversy whether before taking cognizance of the case the Magistrate could remand under the said old section 344. In order to end this controversy and so that the police does not resort to said doubtful procedure in cases where investigation takes much longer time than 15 days in the whole to complete because of the complicated nature of the case or where release of the accused might prejudice investigation, on the recommendation of Law Commission proviso (a) has been added, and it has also been made clear in the new section 309(2) which corresponds to old section 344(1A) that the power of remand clear under section 309 (2) can be exercised only after taking cognizance thus making a clear distinction as mutually exclusive, between detention in custody under section 167 and detention after taking cognizance. It may, however be observed that since the aforesaid recommendation of Law Commission the Supreme Court ruled that old section 344(1A) applied to cases in which process of investigation and collection of evidence was still going on [See Natabar v State of Orissa, AIR 1975 SC 1465 : 1975 Cr LJ 1212 : (1975) 2 SCC 220 (SC) referring to A Lakshmanrao v Judicial Magistrate, AIR 1971 SC 186 : 1971 Cr LJ 253 : (1970) 3 SCC 501 (SC) and Gourishankar Jha v State of Bihar, AIR 1972 SC 711 : 1972 Cr LJ 505 : (1972) 1 SCC 504 (SC)]. What has been provided for in the new Code is that while the original prescribed time limit of 15 days has been retained and has not been as a rule extended, a power has been conferred on the Magistrate with jurisdiction who can order remand to extend the said period of detention beyond 15 days when he is satisfied that adequate grounds exist for granting such extension. But two riders have been imposed on this power, namely (1) that the total period of detention in custody of an accused together with this extension should not exceed 90 days or 60 days, as the case may be and (2) that this extended period of detention must be otherwise than in police custody. And a further provision has been made that if the investigation is not completed within the period of 90 days or 60 days, as the case may be, after the expiry of this period of 90 days or 60 days, as the case may be, the Magistrate shall be bound to release an accused on bail if he is prepared to and does furnish bail.

Section 167(2) ordains that every person, released on bail shall be deemed to be so released under chapter XXXIII of the Code but that does not ipso facto mean that the bail order assumes the content and character of the bail order of the kind concerned under sections 437 and 439 of the Code. Bail granted for default cannot be put on a higher pedestal than the bail granted otherwise [Usha Devi v State of Bihar, 2006 Cr LJ 4435 (4439, 4440) (Pat) : 2006 (3) Pat LJR 200 ].

The indefeasible right of “default bail” cannot be frustrated by prosecution on any pretext. [Rajesh Kumar Paul v State of Assam, AIR 2017 SC 3948 : 2017 (4) Mad LJ (Cr) 62].

The accused though didn’t produce application under section 167(2) but instead argued orally without pleading in regular bail. The apex court held that he is entitled for the grant of default bail because in the matters of personal liberty, it is not advisable to be formalistic or technical. [Rajesh Kumar Paul v State of Assam, AIR 2017 SC 3948 : 2017 (4) Mad LJ (Cr) 62].

The words “not less than” occurring in clause (i) to proviso (a) of section 167(2) of the Code relates to offences

Page 23 of 39 [s 167] Procedure when investigation cannot be completed in twenty-four hours.— punishable with a minimum of 10 years imprisonment. In the instant case, the accused was charged for offences under section 13(1) of the Prevention of Corruption Act (49 of 1988) punishable with imprisonment which may extend to 10 years ie less than 10 years. Therefore, the non-submission of charge-sheet within statutory period of 60 days entitles the accused to be released on bail. [Rajesh Kumar Paul v State of Assam, AIR 2017 SC 3948 : 2017 (4) Mad LJ (Cr) 62].

While arriving at a conclusion whether 60 days period is prescribed or ninety days period is prescribed, the court has to look at maximum sentence awardable. The maximum awardable sentence under sections 409 and 467, Indian Penal Code, 1860 is life imprisonment and, therefore, the period prescribed for filing the chargesheet/challan is always 90 days. In the instant case, as the charge-sheet was filed on 63rd day, as per section 167(2), Code of Criminal Procedure, 1973 accused ought not to have been enlarged on bail and was set aside [State of Gujarat v Laxmansinh Chandrasinh Padhiyar, 2008 Cr LJ 3843 (3850) : 2008 (3) Guj LR 2519 (Guj)].

Where the period of 60/90 days expires on public holiday, application for bail filed on the next working day of the court would be maintainable [Jitendra v State of Maharashtra, 2008 (6) Mah LJ 699 (Bom—DB) : 2009 (2) Bom CR (Cri) 687 : 2008 (3) All MR (Cri) 2458].

Where the accused has filed application under section 167(2), for bail and has availed of the right, the subsequent filing of charge-sheet would not frustrate the indefeasible right of the accused to be released on bail [Vishnu Soni v State of Chattisgarh, 2007 Cr LJ (NOC) 537 (Chatt)].

Bail was cancelled on ground of non-compliance of mandatory provisions and not on ground of misuse of bail. It was held that cancellation of bail was in order even though no reasons were assigned for that [Sushila Devi v State, 2007 Cr LJ 3944 (Raj) : 2007 Cri LR (Raj) 649].

The bail of an accused released on default under section 167(2) can be cancelled on submission of chargesheet in case it discloses commission of graver offence. Mere submission of the charge-sheet for a graver offence only shall by itself be not ground for cancelling the bail. Before cancelling the bail the court will have to be further satisfied that the case of such a nature in which no court would have accepted the plea of bail[Usha Devi v State of Bihar, 2006 Cr LJ 4435 (4439, 4440) (Pat) : 2006 (3) Pat LJR 200 ].

The proviso (a) as inserted by Act 45 of 1978 provides an indefeasible right to be released on bail if charge sheet is not filed within the period of 90 days [Babubhai v State, 2001 Cr LJ 3876 : 2001 (4) Rec Cr R 733 : 2001 (3) Guj LH 590 (Guj); Dinesh v State, 2002 Cr LJ 1067 : 2002 (3) All CrLR 205 : 2001 (3) Pat LJR 732 (Pat)].

In murder case charge-sheet was filed within 90 days and it was held that accused could not claim release on mere ground that cognizance could not be taken within stipulated time [Ajay Sharma v State, 2007 Cr LJ (NOC) 314 (Raj)]. Persons who are adolescents could not be detained during pre-trial period in Borstal Schools only[P Sanmuganathan v Secretary to Government, Chennai, 2007 Cr LJ (NOC) 278 (Mad)].

The accused in a case was granted bail but before he could furnish bail bond charge-sheet was filed. It was held that right of accused to be released on bail had got extinguished [Gyan Chandra Agarwal v CBI, 2007 Cr LJ 2851 (Chh) : 2007 (3) MPHT 54].

Police custody contemplated in section 167 is custody in particular case and deemed or notional surrender in another criminal case cannot be taken as staring point for counting 15 days, 60 or 90 days of police custody. So person against whom two cases, one at Calcutta and one at Chennai were filed and he was arrested and kept in custody of CBI in respect of Chennai case. When he came to know about pending case at Calcutta he voluntarily surrendered before Chennai Court in respect of Calcutta case. It was held that this notional surrender will not be treated as police custody for counting 15, 60 or 90 days custody as the case may be

Page 24 of 39 [s 167] Procedure when investigation cannot be completed in twenty-four hours.— [State of WB v Dinesh Dalmia, 2007 Cr LJ 2757 (SC) : AIR 2007 SC 1801 : (2007) 3 SCC (Cri) 19 : (2007) 5 SCC 773 ].

The expression that the offence is punishable with imprisonment for a term of not less than 10 years in clause (i) of the proviso (a) to section 167(2) relates to an offence for which imprisonment is for clear period of ten years or more. Accused in such case can be detained up to a period of 90 days [Rajeev v State, AIR 2001 SC 2369 : 2001 Cr LJ 2941 : 2001 (5) SCC 34 : 2001 (3) Crimes 303 (SC)].

The right accrued to the accused for being enlarged on bail under proviso (a) to section 167(2) of Code of Criminal Procedure, 1973 is not an absolute right. It gives only absolute right to be granted bail if the chargesheet is not filed within the prescribed period but the detention nonetheless continues to be authorised. The right can be exercised by him only before the charge-sheet is filed. If, however, he continues to be in custody because no order granting him bail is passed under that proviso, the magistrate’s power of granting bail once the charge-sheet is filed, can be exercised only under section 437. The right to bail cannot then be claimed under the proviso to sub-section (2) of section 167 of the Code [Abdul Wahid v State of Maharashtra, 1992 Cr LJ 1900 : 1992 (1) Cur Cr R 1454 (Bom—DB)].

Once police report is filed, the inquiry under section 204 starts, then it can safely be said that the process of application of mind has commenced. It can, ultimately, culminate in the order directing issuance of process. It may not be logically concluded during the period stipulated under section 167(2) of the Code. Take for example, charge-sheet is filed just before the end of the court hours on the last day (i.e. on 60th or 90th or 180th days as the case may be) prescribed under section 167(2) and a legal debate, if raised that the chargesheet is incomplete, and the Magistrate is called upon to decide legal issue, and arguments spill over next day making it obligatory on the part of the magistrate to decide rival contentions by a reasoned order, in such event order taking cognizance is bound to be passed after expiry of the period stipulated in section 167(2) of the Code. In such event, can it be said that the accused would be entitled to bail on default for no fault on the part of either of the parties. The answer has to be in negative. Thus, during the period of inquiry, the custody of the accused by no stretch of imagination can be said to be unlawful as held by the apex court while considering the nature of inquiry under section 207 of Code of Criminal Procedure, 1973 [Gulam Mohd Kabir Mohd v State of Maharashtra, 2008 Cr LJ 2426 (2432) (Bom) : 2008 (1) Bom CR (Cri) 704 : 2008 (3) AIR Bom R 787 : 2008 All MR (Cri) 721].

The right of an accused to be released on bail whether under the proviso to section 167(2) or otherwise is subject to his observance of the conditions of bail and also subject to proper conduct on his part. If bail by default granted after 90 days is liable to be cancelled later on the ground of abuse of the liberty or violation of conditions even when the default in filing the report continues, there can be no rhyme, reason or principle in insisting that a person who has been re-arrested must again be granted to the benefit of the proviso to section 167(2) when the total period of detention exceeds 180 days [Nishil v Station House Officer, Alathur Police Station, 2008 Cr LJ 2467 (2470) : 2008 (1) Ker LJ 39 (Ker) : 2007 (4) Ker LT 870 ].

Accrual of the right to bail depends upon the maximum term of imprisonment provided for the offence and not the minimum. The term of imprisonment specified for the offence of dowry death under section 304B, Indian Penal Code, 1860, is not less than seven years but it may extend to life imprisonment. Thus the maximum terms of imprisonment being more than 10 years, the period of 90 days remand was applicable. The accused became entitled to compulsory bail because the charge sheet was not submitted within 90 days [State of HP v Lal Singh, 2003 Cr LJ 1668 (HP)].

An offence under section 304B, Indian Penal Code, 1860 fails under section 167(2)(a)(ii), investigation has to be completed within 60 days from the date of arrest/surrender of the accused and if the charge-sheet is not submitted, the accused becomes entitled to statutory bail if he is ready and furnishes bail bonds [Sunil Kumar v State of Jharkhand, 2002 Cr LJ 2507 (2510) (Jhar) : 2002 (2) Crimes 473 : 2002 (1) JLJR 724 ].

An attempt to commit murder where no injury is caused falls under first part of section 307, Indian Penal Code,

Page 25 of 39 [s 167] Procedure when investigation cannot be completed in twenty-four hours.— 1860 punishable with imprisonment upto ten years the accused can be detained up to 60 days. Under proviso (a)(ii) of section 167 on failure to file charge within 60 days, the accused is entitled to be released on bail [Mohd Naseem v State of Orissa, 2003 Cr LJ 1050 (1052) (Ori) : 2002 (23) OCR 608 : 2002 (2) Ori LR 476 : 2003 (2) Hindu LR 215 ].

On filing of the charge-sheet within a period of 60 days could prove fatal only in the event the prescribed sentence was less than imprisonment for life or may extend for 10 years and also liable to fine. Admittedly, the punishment provided for an offence under section 304, Indian Penal Code, 1860 is either life imprisonment or 10 years and also fine. The period of 10 year imprisonment or with fine or with both is provided if the act is done with the knowledge that it is likely to cause death or cause fatal injury likely to cause death. Accepting the argument that the case is covered under section 304(2), Indian Penal Code, 1860 so far the petitioners had no intention of causing but had knowledge that it may cause death, without any such intention, the prescribed period of punishment is 10 years and, therefore, the bar of 60 days does not come into play at all. This right cannot be exercised after the charge-sheet has been submitted and cognizance had been taken [Lakhan Tomer v State of UP, 2008 Cr LJ 1521 (1523) (All) : 2008 (2) All LJ 137 : 2008 (60) All Cri C 807].

Police custody after the expiry of 15 days with no further extension becomes illegal and not permissible [Public Prosecutor v Tatekayale Vurana, 2003 Cr LJ NOC 165 : 2003 All LJ 2395 : 2002 (45) All Cr C 262 : 2002 (2) All Cr R 1430 : 2003 (1) Rec Cr R 337].

If application for police custody is rejected, that order become final and the investigating officer is permanently deprived of seeking police custody of that accused for the further investigation, discovery etc. ever though the offence may be very serious. [Ambarish Rangshahi Patrugere v State of Maharashtra, 2011 Cr LJ 515 (521) : (2010) 112 Bom LR 3144 (Bom)].

Remand of the accused to police custody can be for fifteen days only. Thereafter, further remand during period of ninety days or sixty can only be judicial [CBI v Anupam J Kulkarni, AIR 1992 SC 1768 : (1992) 3 SCC 141 : 1992 (2) Crimes 310 : 1992 Cr LJ 2768 (SC)].

After the first remand by the nearest magistrate, it is the Court of Session which alone can extend the remand and pass orders under section 43D(2)(b) of the UA Act extending the period of detention beyond 90 days and up to 180 days in individual cases after considering the report or reports of the Public Prosecutor. But this resultant legal position is due to the combined effect of the UA Act and NI Act. [Ashraff v State of Kerala, 2011 Cr LJ 1021 (1027) (Ker)].

Where the question concerning to pray to prosecution of right for police remand within 15 days of detention arises, that cannot be defeated by granting time for obtaining a stay order [Amar Pal v State of UP, 1995 Cr LJ 52 (All)].

Section 167(2) proviso is mandatory; if the period specified therein has expired without charge-sheet being filed the accused must be released on bail. Merits of the case are irrelevant at that stage. Release on bail is mandatory. But if investigation reveals prima facie of serious offence at a subsequent stage then bail can be cancelled [Rajnikant Jivanlal Patil v Intelligence Officer Narcotic Control Bureau, AIR 1990 SC 71 : 1990 Cr LJ 62 (SC) : (1989) 3 SCC 532 (SC)].

Section 37, Narcotic Drugs etc Act, 1985 has incorporated its independant scheme for grant of bail for the offences punishable under the Act bearing in mind the specific object of the Act, ie to make the law more stringent, and also to prevent release of the drug offender on bail on technical ground and the scheme as codified under the Act, Privilege under section 167(2), proviso (a) of the Code of Criminal Procedure, 1973 cannot ipso facto be extended in the matter of grant of bail under section 37 of the Act [Prahlad v State of Maharashtra, 1991 Cr LJ 1537 : 1990 (3) Crimes 439 (AA Desai J)].

Page 26 of 39 [s 167] Procedure when investigation cannot be completed in twenty-four hours.— The provision [proviso (a) to section 167(2)] that an accused person shall be released on bail after the expiry of sixty days in custody, if he is prepared to and does furnish bail, is not controlled by the latter portion of section 437(1) [Ved Kumar Seth v State of Assam, 1975 Cr LJ 647 (Gau)].

In Hitendra Vishnu Thakur v State of Maharashtra, AIR 1994 SC 2623 : 1995 Cr LJ 517 : (1994) 4 SCC 602 : 1994 (2) Crimes 916 : JT (1994) 4 SC 255 (SC), the Supreme Court has held (with references to the TADA) that if the charge-sheet is not filed within 180 days there is an absolute and indefensible right to bail.

Even though the charge-sheet is filed after expiry of the statutory period of 90/60 days, as the case may be, if the accused is not released on bail, under section 167(2), the magistrate after submission of the charge-sheet may pass an order of remand under section 309(2). Such an order of remand will not be invalid for the reason of the accused having not been released on bail under section 167(2) and the charge sheet not having been submitted within the period of 90/60 days as prescribed therein. This, however, will not mean that the accused cannot invoke his right to claim bail, which will depend not only upon the incident that the charge sheet was submitted after the expiry of the period of 90/60 days, but also upon the nature of the evidence and the Court’s examination of other circumstances to decide whether the accused should be deemed to be entitled to bail for the reason of a delay in the submission of the charge sheet [Krishnaswamy v Inspector of Police, 1992 Cr LJ 2998 (Mad) (per Mishra and Janarthanam JJ)].

A charge-sheet was filed against accused under sections 173(2). On the next day, the police made application under section 173(8) for further investigations. The accused surrendered before the Court on completion of prescribed period of detention. Under section 167(2) applied for bail on grounds that no charge-sheet was filed within the prescribed period from their date of surrender. Merely because accused took their sweet time to surrender before Court, does not mean, that they will be entitled to benefit of proviso to section 167(2) from the date of surrender. Application under section 173(8) will have no bearing on applicability of proviso to section 167(2). Once report under section 173(2) was filed the, proviso to Section 167(2) become inapplicable [Anil Somdatta Nagpal v State of Maharashtra, 2006 Cr LJ 1307 (Bom) : 2007 (3) Scale 49 ].

The requirement that the accused must be produced physically cannot be stretched so far as to cover cases where it is practically impossible to produce him in person. In such cases his non-production will not invalidate the remand [Raju v State of MP, 1990 Cr LJ (NOC) 159 : 1990 MPLJ 289 (MP-DB)].

Once the accused is released on bail he cannot be re-arrested merely on the ground that the prosecution has subsequently submitted a charge sheet. After his release under section 167(2)(a) proviso for which the default of the prosecution was responsible— cancellation of bail can be ordered only if the conditions of sections 437(1), 437 (2) or 439 are satisfied [Aslam Babalal Desai v State of Maharashtra, AIR 1993 SC 1 : 1992 Cr LJ 3712 : (1992) 4 SCC 272 : 1992 (3) Crimes 597 (SC)].

An order for release on bail under proviso (a) to section 167(2) is an order on default. The accused is entitled to be released on bail on account of default on the part of the prosecution to file charge sheet within the prescribed period, if he is prepared to and does furnish bail. It is a legislative command and not Court’s discretion. If the accused has not made application for his release on bail after expiry of the period prescribed by the proviso (a) to section 167(c) and before filing of the charge sheet, he had no right to claim his release on bail after filing of the charge-sheet [Shardulbhai Lakhmanbhai Panchali v State of Gujarat, 1990 Cr LJ 1275 : 1990 (1) All CrLR 364 (Guj—FB)].

While releasing an accused under default clause under section 167(2), Code of Criminal Procedure, 1973, the Court may impose conditions. But, the grant of bail cannot be said illegal or arbitrary merely because the Court has not imposed condition [Prasanta Kumar Das v Republic of India, 2005 (1) Crimes 561 (564) (Ori) : 2005 (Supp.) OLR121].

Page 27 of 39 [s 167] Procedure when investigation cannot be completed in twenty-four hours.— Even if two views are possible, section 167(2) should be construed in favour of liberty of the individual. Delay in completion of investigation has to be on pain of the accused being released on bail [Aslam Babalal Desai v State of Maharashtra, AIR 1993 SC 1 : 1992 Cr LJ 3712 : 1992 SCC (Cri) 870 : JT 1992 (6) SC 21 (SC)].

The accused was charged with heinous offence of bride burning. No such allegation was made against the coaccused the accused could not claim parity with co-accused released on bail. Mere fact that the accused was in jail for eight months would not entitle him to release on bail. Application was not made during date on which the prescribed period of 90 days ended and date on which charge sheet was submitted. The Accused has no right to claim release on bail even after filing of charge-sheet on the sole ground that charge sheet was filed, after prescribed period [Hari Om v State of UP, 1992 Cr LJ 182 All : 1991 All Cr R 156 (BP Singh, J.)].

The officer investigating such second offence can exercise the power of arresting him in connection with the second case. But if the investigation into the offence for which he was acquitted initially had revealed once ramifications as associated therewith, any further investigation would confine to same arrest and hence period envisaged in the proviso to section 167(2) remain un-entertainable.[State of Maharashtra v Mrs Bhartichand Malvarma, AIR 2002 SC 285 : 2002 Cr LJ 575 : 2002 (1) UJ 233 (SC) : (2002) 1 SCJ 41 ].

When charge-sheet submitted after six months from date of arrest of accused then extending period of investigation beyond six months vitiates trial. [Gopal Pd Kalowar v State of Assam, 2001 Cr LJ 2678 : 2001 (3) Gau LR 164 (Gau)].

The accused would not be entitled to bail under section 167(2) merely because the Magistrate has not supplied the copies under section 207 within the prescribed period of 60/90 days as the case may be [State of HP v Kanti Grover, 2004 Cr LJ 4355 (HP)]. Where the FIR was under sections 419, 420, 465, 471 and 409 Indian Penal Code, 1860 and charge-sheet was not filed within 60 day, the accused was released on bail [Surinder Joshi v State of Punjab, 2004 Cr LJ 1100 (P&H) : 2004 (1) All CrLR 576 : 2004 (3) Cur CrR 68].

Where in a case under section 21(2) NDPS Act, charge-sheet was not filed within 60 days of the arrest, the accused was released on bail [Santosh Kumar Mahapatra v State of Orissa, 2004 (4) Crimes 59 (Ori)]. [s 167.23] Sections 167 and 439, CrPC.— Rejection of an application for bail which has been moved under section 439, Code of Criminal Procedure, 1973 is quite different from releasing the petitioner in terms of the statutory provisions under section 167(2), while section 439 empowers the High Court and the sessions court to grant or refuse bail, these powers are discretionary powers. Section 167(2) does not allow for any discretion. This is a mandatory provision and whether bail has been granted or rejected under section 439, Code of Criminal Procedure, 1973, if a case is made out for releasing the petitioner under section 167(2), then such person has to be released irrespective of the order passed under section 439, Code of Criminal Procedure, 1973 [Ram Singh Batra v State, 2005 Cr LJ 2471 (Del)]. [s 167.24] Sections 167 and 57.— Section 167 is supplementary to section 57(1). The object of these provisions of law is to see that a person arrested by the police is brought before a Magistrate with the least possible delay in order to enable the Magistrate to judge if such person has to be further kept in custody and also to enable such person to make any representation if he may wish to make in the matter. By these provisions, it is also intended to prevent the possible abuse by the police of their powers in trying to make discoveries of crime by means of a duress, terror and wrongful confinement. If the investigation into case is not completed and the charge sheet is not filed before the expiry of the period of detention of the accused (90 days or 60 days, as the case may be) the accused is entitled to be released on bail under the proviso (a) to section 167(2). No discretion whatsoever is left to the Magistrate and it is obligatory on his part to release the accused on bail provided the accused furnishes bail [Public Prosecutor High Court of AP v Chaganti Satyanarayana, 1986 Cr LJ 1134 AP : 1986 (2) Crimes 609 : 1986 (1) Andh LT 150 : 1986 APLJ 310 ].

Page 28 of 39 [s 167] Procedure when investigation cannot be completed in twenty-four hours.— On the expiry of 60 days or 90 days, as the case may be, from the date of arrest further detention does not become ipso facto illegal or void, but if the charge-sheet is not submitted within the aforesaid period, then notwithstanding anything to the contrary in section 437(1), the accused would be entitled to be released on bail if he does furnish bail [State of UP v Lakshmi Brahman, AIR 1983 SC 439 : 1983 Cr LJ 839 : (1983) 2 SCC 372 : 1983 (1) Crimes 797 ]. [s 167.25] Notice to Public Prosecutor.— In Section 167, Code of Criminal Procedure, 1973 there is no provision for giving notice to PP. Where bail petition under default clause under section 167 is filed. The application has to be decided the same day [Amarwati v State of UP, 2005 Cr LJ 755 (762) : (2004) 50 All CrC 742 : 2005 (1) Crimes 44]. [s 167.26] Object of proviso.— This proviso is an innovation in the new Code and is intended to speed up investigation so that a person does not have to languish unnecessarily in prison facing a trial. There is a similar provision in section 437(6) [Gurucharan Singh v State (Delhi Administration), AIR 1978 SC 179 , 184 : 1978 Cr LJ 129 : (1978) 1 SCC 118 (SC)]. The provisions of section 167(2) proviso (a) are mandatory [Premraj v State of Rajasthan, 1976 Cr LJ 455 : 1976 Raj LW 8 (Raj); State of Rajasthan v Bhanwarkhan, 1975 Cr LJ 981 : 1975 WLN (Raj) 179 (Raj)]. The Court has no discretion [Natabar v State of Orissa, AIR 1975 SC 1465 : 1975 Cr LJ 1212 : (1975) 2 SCC 220 (SC)]. There is a precious interdict protective of personal freedom. Where the accused was detained for six years the magistrate having mechanically authorised repeated detention, he was ordered to be released forthwith [Mantoo Majumdar v State of Bihar, AIR 1980 SC 847 : 1980 Cr LJ 546 : (1980) 2 SCC 406 (SC)]. So that the mandatory provisions are not violated the Supreme Court has also enjoined a duty on the court. When an under-trial prisoner has been in detention for 90 days or 60 days, as the case may be, the Magistrate must, before making an order of further remand to judicial custody, point out to him that he is entitled to be released on bail and see that assistance of a lawyer at State cost is secured to him (See S Hussainara Khatoon v Home Secretary, State of Bihar, AIR 1979 SC 1377 : 1979 Cr LJ 1052 : (1980) 1 SCC 108 ].

Persons sought to be prosecuted for offences punishable under Narcotic Drugs and Psychotropic Substances Act are excluded from the operation of the provisions of section 167(2) of the Code of Criminal Procedure, with its appended proviso.

The object behind this salutary provision is to prevent the incarceration of persons accused of offences for an unduly long period without any other limit. [Tamizharasi v Asstt Director, Narcotic Control Bureau, 1996 Cr LJ 208 at 221 : 1996 (2) All Cr LR 178 (Mad)].

Under section 167(2) proviso, an indefeasible right to leave is conferred by the law on the accused when the specified period expires. Court cannot extends the period to enable the prosecutor to file charge-sheets. [Ramesh Das v State of Orissa, 2000 Cr LJ 2473 , 2478 : 1999 (4) Crimes 434 : (1999) 88 Cut LT 487 paras 15, 16 (RK Dash J)].

The expression “the Magistrate” would mean the magistrate having jurisdiction to try the case [Natabar v State of Orissa, AIR 1975 SC 1465 : 1975 Cr LJ 1212 : (1975) 2 SCC 220 ]. Special Judge under Criminal Law (Am) Act, 1952 can exercise power under section 167 [V Krishnaswami Naidu, AIR 1979 SC 1255 : 1979 Cr LJ 1069 : (1979) 4 SCC 5 (SC)]. [s 167.27] Position where charge-sheet not submitted.— If no charge-sheet has been submitted within 90 days or 60 days, as the case may be, right of the accused to be released on bail is an absolute right [Babubhai Parshottamdas Patel v State of Gujarat, AIR 1982 NOC 72 : 1982 Cr LJ 284 FB : (1981) 22 Guj LR 1232 (Guj) (overruling Umed Singh, AIR 1977 G 11; Noor Md v State, 1980 Cr LJ (NOC) 27 : ILR (1978) 2 Del 442 (Del); Heeraman v State of UP, 1975 Cr LJ 1508 : 1975 All Cr C 190 (All)] irrespective of merit [Dhenu Suren v State, 1977 Cr LJ 781 : 1977 BBCJ 22 (Pat)]. Detention beyond 60 days or 90 days, as the case may be, because there was no presiding officer for a considerable period is a clear violation of mandatory provisions of section 167 [Jailal v State of Rajasthan, 1980 Cr LJ 523 : 1979 Raj LW 205 : 1979 Raj Cr C 290 (Raj)]. Detention of undertrial prisoner for longer period than the term for which they would have been sentenced if convicted is illegal being violative of Article 21 of Constitution [Hussainara

Page 29 of 39 [s 167] Procedure when investigation cannot be completed in twenty-four hours.— Khatoon v Home Secretary, State of Bihar, AIR 1979 SC 1369 : 1979 Cr LJ 1045 : (1980) 1 SCC 98 ]. When a charge-sheet is submitted without reports of experts on statements under section 161 well within the period of 60 days (now 90 days or 60 days, as the case may be), from the date of arrest, the investigation cannot be considered to be inconclusive and the accused is not entitled to be released on bail under section 167(2) [State of Haryana v Mehal Singh, AIR 1978 P&H 341 FB : 1978 Cr LJ 1810 : (1978) 80 Punj LR 480 (cases discussed)].

For investigation of cases concerning the contravention of rule 43 of the Defence and Internal Security of India Rules, section 167(2), proviso (a) applies and detention beyond 60 days cannot be allowed. Rule 184 of the rules does not bar applicability of section 167(2) proviso (a) [Surinder Kumar v State of Punjab, AIR 1977 P&H 245 , FB : 1977 Cr LJ 1266 : 78 Punj LR 643].

Non-filing of charge-sheet within 60 days resulted into release of the accused under section 167(2) and is legal. [Smt Bhartiben Verma v NG Loknath Singh, 1998 Cr LJ 17 : 1998 (1) Cur Cr R 473 (Kant)].

When the accused had entered appearance as long back as 20 April 1986 and when the benefit of amended provision under section 167(5) of the Code of Criminal Procedure, 1973 was made available to him after 2 May 1989, he would be certainly entitled at any rate, to the benefit, for want of an order of continuation having been passed within two years from the enforcement of the aforesaid provision of law. In any view of the matter, the law would never permit the liberty of assailing an order of continuation of an investigation after a long lapse of more than three years as occurred in the instant case. [Phanindra Nath Maity v State of WB, 1996 Cr LJ 590 (Cal)].

Non-submission of charge-sheet within 90 days—Application filed by accused for release before Magistrate having no jurisdiction.—On true interpretation of section 167(2) of the Code of Criminal Procedure, 1973, application under section 167(2) for default bail on non-filing of charge-sheet before the concerned Magistrate within 90 days, person who is arrested and/or detained has to submit application before the Magistrate having jurisdiction to try the case or commit it to trial. It is also required to be noted at this stage that even chargesheet/challan is required to be filed/submitted only before the Magistrate who has jurisdiction to try the case or commit it to trial. Therefore, application submitted by the petitioner before the learned additional sessions judge, Deesa on 13 May 2008 for releasing him on default bail contending interalia that charge-sheet has not been filed within 90 days, cannot be said to valid application for default bail as contemplated under section 167(2) of the Code of Criminal Procedure, 1973.

The accused had filed application for release under section 167(2) before “Magistrate having no jurisdiction to try the case”. After withdrawing application before sessions court, he preferred another application before “Magistrate having jurisdiction” to try such case. The charge-sheet had already been filed during pendency of application before sessions court. Rejection of second application before magistrate for release on default bail was proper [Karshanbhai Kamabhai v State of Gujarat, 2009 Cr LJ 4613 (4619) (Guj)]. [s 167.28] Computation of period.— While computing the period of 90 days the day on which the accused was remanded to judicial custody is to be excluded. There was no infringement of section 167 (2) if the charge-sheet is filed on 90th day. [Ravi Prakash Singh v State of Bihar, AIR 2015 SC 1294 : 2015 (2) Scale 596 ].

While computing the total period of detention of 60 days (now 90 days or 60 days, as the case may be) the period of detention under section 57 has to be excluded. The date of remand can be included [Binod Kumar Nanda v State of Orissa, 2004 Cr LJ (NOC) 126 : 2004 (27) OCR 755 ].

The day on which custody is made cannot be excluded [LR Chawla, (1976) Cr LJ 212 : 1975 Rajdhani LR 471 (Del); Tarsem Kumar v State, 1975 Cr LJ 1303 (Delhi); Batna Ram v State of HP, 1980 Cr LJ 748 : 1980 Sim LC 100 : 1981 Chand LR (Cri) 4 (HP); Jai Singh v State of Haryana, 1980 Cr LJ 1229 : 83 Punj LR 25 (P&H)].

Page 30 of 39 [s 167] Procedure when investigation cannot be completed in twenty-four hours.— Period of detention under section 167(2) should be included in calculating 90 or 60 days specified in proviso (a) clauses (i) and (ii) [Batna, supra].

The period of 60 days or 90 days, as the case may be, is to be computed from the date of arrest and not from the date of production before the Magistrate [Fakira Naik v State of Orissa, 1983 Cr LJ 1336 : (1983) 55 Cut LT 327 : 1983 (2) Crimes 339 (Ori)].

If the investigation in the offence for which the accused was arrested initially had revealed ramifications associated therewith, for example offence under some other penal law, any further investigation would continue to relate to the same arrest, and hence the period of 60/90 days would remain unextendable and would be counted from the date of first remand when the accused was first arrested [State of Maharashtra v Bharati Chandmal Varma, AIR 2002 SC 285 : 2002 Cr LJ 575 : 2002 (1) Crimes 218 : (2002) 2 SCC 121 ; Nasaruddin Mohammed Bashir Khan v State of Maharashtra, 2006 Cr LJ 2266 (Bom)].

For the discharge of the accused, the period of limitation of two years should be computed from the date on which the accused was arrested or made his appearance in Court. [State of WB v Pranab Ranjan Roy, AIR 1998 (SC) 1887 : 1998 Cr LJ 2527 : 1998(3) SCC 209 : 1998 (1) Crimes 275 ].

Date on which cognizance is taken is not absolutely material. Relevant date is the date on which investigation is completed and charge-sheet filed. In the instant case while filing charge-sheet the Investigating Officer had indicated that the investigation was still going on in order to probe whether any other persons were involved in the case. Held, it could not be said that the charge-sheet filed was an incomplete charge-sheet. As the investigation was completed and charge-sheet filed within 120 days, the question of enlarging the petitioners under the proviso to sub-section (2) of section 167, Code of Criminal Procedure, 1973 did not arise [Pradeep Kumar Deo v State of Orissa, 2003 Cr LJ 4053 : 2003 (12) All Ind Cas 493 : 2003 (4) Crimes 406 : 2003 (96) Cut LT 431 (Ori)]. [s 167.29] Bail on merits.— Immediately on filing a charge-sheet under section 173, the period of remand pending investigation comes to an end and the provisions of section 167(2) ceases to apply and bail can be granted on merits under section 437 [Heeraman, supra; Lakshmi Brahman v State, 1976 Cr LJ 118 : 1976 All LJ 65 : 1975 All Cr C 307 (All); Sharawan, 1976 Mad LJ 654; Pandi v State, 1979 Cr LJ 1503 (Mad)—Contra mere subsequent filing of chargesheet is not sufficient [Babubhai Parshottamdas Patel v State of Gujarat, AIR 1982 NOC 72 : 1982 Cr LJ 284 FB : (1981) 22 Guj LR 1232 (Guj); (Umed Singh, AIR 1977 G 11overruled); Bashir v State of Haryana, AIR 1978 SC 55 : 1978 Cr LJ 173 : (1977) 4 SCC 410 (SC)].

When the co-accused was released on bail on technical ground and not on merits, the accused though similarly situated cannot be granted bail on that ground at later stage when charge-sheet had been already filed. [Prasanjeet Basu Mallick v State of Orissa, 1997 Cr LJ 902 : 1997 (2) EFR 134 (Ori)]. [s 167.30] Shall be released on bail if he is prepared to and does furnish bail.— Some Courts have interpreted the expression to hold that a formal application for bail is necessary and until an application is made and the accused furnishes bail, detention would continue to be legal [Heeraman, 1975 Cr LJ 1508 (All); Lakshmi Brahman v State, 1976 Cr LJ 118 : 1976 All LJ 65 : 1975 All Cr C 307 (All)]. On the expiry of 90 days or 60 days, as the case may be, even if during the pendency of a formal application for bail a charge-sheet is filed the Magistrate has no power to grant bail under this proviso [Pandi v State, 1979 Cr LJ 1503 (Mad)]. Some Courts have held that no application for bail is at all necessary. After expiry of 90 days or 60 days, as the case may be, it is the Court’s duty to make an order for bail and unless it gets a refusal to furnish security it has no power to detain on 91st day or 61st day, as the case may be. If the police report is filed after 90 days or 60 days, as the case may be, Court cannot validate illegal detention by making an order or remand under section 309(2) as section 309(2) does not override the mandatory provisions of section 167(2) [Noor Md v State, 1980 Cr LJ (NOC) 27 : ILR (1978) 2 Del 442 (Del)]. Presentation of application is irrelevant. The Magistrate is himself duty bound and the accused is entitled to be released on furnishing bail [Baldev Singh v State of Punjab, 1975 Cr LJ 1662 FB : 1975 Punj LJ (Cri) 193 (P&H)]. In a case after the expiry of 60 days the accused claiming to be released under section 167(2) filed an application for bail but the Magistrate kept it

Page 31 of 39 [s 167] Procedure when investigation cannot be completed in twenty-four hours.— pending and during pendency the police submitted an incomplete charge-sheet for the offence of murder and the Magistrate taking cognizance of the offence remanded the accused to judicial custody under section 309(2). It was held that the detention being illegal in direct contravention of section 167(2), he cannot be recommitted to custody by the Magistrate acting under section 309(2) [Khinvadan v State of Rajasthan, 1975 Cr LJ 1984 : 1975 Raj LW 308 (Raj)].

A Magistrate has jurisdiction to pass an order of remand, despite the absence of any formal written application on a request for such remand being made by the police or the prosecution [Ramesh Kumar Ravialias Ram Prasad v State of Bihar, 1987 Cr LJ 1489 : 1987 Pat LJR 650 : 1987 BLJR 54 (Pat)].

In this case, the bail bond was rejected on technical ground that the condition of bail was not written. It was held that the Magistrate was empowered to detain accused in custody beyond period prescribed so long as the accused failed to furnish bail. The accused, having furnished bail after passing order, was entitled to be released on bail [Gorel Venkat Ratnam v State of Orissa, 2010 Cr LJ (NOC) 26 (Ori) : 2009 Supp (2) OLR 330 ]. [s 167.31] Filing of charge-sheet.— A charge sheet under section 173 can be filed only after completion of investigation in the case relating to all offences. A case involved several offences. First charge-sheet (for some offences) was filed within 90 days and second charge-sheet after 90 days. The accused must be released on bail. However, this defect does not vitiate the proceedings before the Magistrate [PV Vijayaraghavan v CBI, 1984 Cr LJ 1227 : 1984 (2) Crimes 609 : 1984 Ker LT 522 (Ker)].

An order of release on bail under section 167(2) proviso is not defeated by lapse of time or by the filing of charge-sheet or by remand to custody under section 309(2) [Raghubir Singh v State of Bihar, (1986) 3 SCJ 599 : AIR 1987 SC 149 : 1987 Cr LJ 157 : (1986) 4 SCC 481 (SC)].

Pre-trial release should be granted, in appropriate cases, on personal bond of the accused without sureties and without any monetary obligation [Hussainara Khatoon v Home Secretary, State of Bihar, AIR 1979 SC 1360 : 1979 Cr LJ 1036 : (1980) 1 SCC 93 (SC)]. Bail does not involve a necessary component of sureties and release can be ordered on taking personal recognizance [Mantoo Majumdar v State of Bihar, AIR 1980 SC 847 : 1980 Cr LJ 546 : (1980) 2 SCC 406 (SC)].

The type of release on bail under section 167(2) proviso (a) shall be deemed to be a release under the provisions of chapter XXXIII relating to bail [Gurucharan Singh v State (Delhi Administration), AIR 1978 SC 179 , 184 : 1978 Cr LJ 129 : (1978) 1 SCC 118 (SC)]. His release shall be considered as one under section 437 (1) or (2) [Bashir v State of Haryana, AIR 1978 SC 55 : (1977) 4 SCC 410 : 1978 Cr LJ 173 ]. Because of the deeming fiction provided in section 167(2), proviso (a) all the provisions of chapter XXXIII apply to a case in which bail has been granted under the proviso. The effect is that if a person is released on bail during investigation the bail granted operates even after the charge-sheet is filed. It is open to the prosecution to apply for cancellation of bail under the provisions of section 437(5) [Umed Singh, AIR 1977 G 11]. The mandatory provision that on the expiry of 60 days the accused shall be released on bail if he furnishes bail is not controlled by section 437(1) which is applicable only in the case of an accused whose period of detention has not completed 60 days [Ved Kumar Seth v State of Assam, 1975 Cr LJ 647 (Gau)].

Right of accused to be released on bail in default of filing of charge-sheet within allowed time is enforceable only from time of default till filing of challan. [Dinesh Kr Jain v State of UP, 2001 Cr LJ 2847 : 2001 All LJ 1229 : (2001) 42 All Cr C 765 (All)].

Accused entitled to be released on bail when application was filed at 11:00 am and challan was put up on the same day at 4:00 pm [Sunil Singh v State of Chhattisgarh, 2007 Cr LJ 510 (Chhattisgarh)]. [s 167.32] Non-submission of charge-sheet within 90 days—Default bail.—

Page 32 of 39 [s 167] Procedure when investigation cannot be completed in twenty-four hours.— On true interpretation of section 167(2) of the Code of Criminal Procedure, 1973, application under section 167(2) for default bail on non-filing of charge-sheet before the concerned Magistrate within 90 days, person who is arrested and/or detained has to submit application before the Magistrate having jurisdiction to try the case or commit it to trial. At this stage that even charge-sheet/challan is required to be filed/ submitted only before the Magistrate who has jurisdiction to try the case or commit it to trial. Therefore, application submitted by the petitioner before the Additional Sessions Judge, for releasing him on default bail contending interalia that charge-sheet has not been filed within 90 days, cannot be said to be valid application for default bail as contemplated under section 167(2) of the Code of Criminal Procedure, 1973. [Karshanbhai Kamabhai Harijan, 2009 Cr LJ 4613 (4619) (Guj)].

In this case the magistrate directed release of accused on bail on the ground that investigation was not complete and the charge-sheet was not filed within prescribed period of 90 days. Accused could not furnish sureties but subsequently he showed his readiness to furnish sureties. But, in the meantime, the charge-sheet was filed. Bail was not granted [Sunil D Thaware v State of Maharashtra, 2010 Cr LJ (NOC) 822 (Bom)].

It is a constitutional duty of court to inform accused that he is entitled to “default bail”. [Rajesh Kumar Paul v State of Assam, AIR 2017 SC 3948 : 2017 (4) Mad LJ (Cr) 62]. [s 167.33] Right to bail.— A sanction to whip up the investigating agency into a sense of urgency is provided by conferring a right on the accused to be released on bail, if the investigating agency is unable to keep within the parameters of 60 or 90 days, as the case may, for completing the investigation. The grant of bail under section 167(2) is not on the merits of the case as such, but is primarily a statutory and technical right accruing in the event of delays in the completion of the investigation by the police. The day of arrest of an accused or his surrender in Court is to be excluded for the purposes of the precise computation of 90 days under section 167(2), proviso [Firoz v State, 1986 Cr LJ 409 : 1985 Pat LJR 549 : 1985 BLJR 429 (Pat)].

Since in the case challan was filed on 20 July 1995, before the bail petition could be decided the petitioner cannot claim that he is released on bail under section 167(2) of the Code of Criminal Procedure, 1973. [Dara Singh v State of Haryana, 1996 Cr LJ 1430 : 1996 (1) All CrLR 461 : 1996 (1) Rec Cr R 155 (P&H)].

If an accused person fails to exercise his right to be released on bail for the failure of the prosecution to file the charge-sheet within the maximum time allowed by law, he cannot contend that he had an indefeasible right. Which he can exercise at any time, notwithstanding the fact that in the meantime the charge-sheet is filed. But on the other hand, if he exercises the right within the time allowed by law and is released on bail under such circumstances, he cannot be re-arrested on the mere filing of the charge-sheet. [Bipin Shantilal Panchal v State of Gujarat, AIR 1996 SC 2897 : 1996 Cr LJ 1652 : (1996) 1 SCC 718 : 1996 (1) Crimes 9 at p 1653 (SC); Rakesh Swain v State of Orissa, 2005 Cr LJ 1451 (Ori)].

An order made under section 167(2) of the Code granting bail to an accused shall hold good, until it is cancelled, and the accused is entitled to produce sureties and execute bond in terms of the order of bail at any time irrespective of the fact whether the case is at the stage of committal or at the stage of trial before the Court of Session. [Periyasamy v State of Inspector of Police, 2010 Cr LJ 3815 (3817) (Mad) : 2010(2) CTC 184 ].

Remedy of bail under chapter XXXIII, Code of Criminal Procedure, 1973 is exhaustive [Guna v State, 1997 Cr LJ 626 (Mad)].

Indefeasible right accrued to the accused to be released on bail if charge-sheet not filed on expiry of the statutory period as provided under proviso to section 167(2) Code of Criminal Procedure, 1973 and such right is enforceable till filing of challan. [Pramod Hariprasad Tiwari v State of Gujarat, 1997 Cr LJ 1605 (Guj) : 1997 (1) Crimes 18 : 1997 (1) Guj LR 570 : 1997 (3) Rec Cr R 451 (Guj)].

Page 33 of 39 [s 167] Procedure when investigation cannot be completed in twenty-four hours.— In this case, the bail was sought on ground of failure to file charge-sheet within 60 days, as prescribed. It was held that as the alleged offence was punishable with imprisonment for a period of 10 years or more, the accused was entitled to bail on stringent condition [Sunder v State, 2010 Cr LJ (NOC) 679 (MP)].

The gravity of the offence for submitting of the charge-sheet is observed from the side of maximum punishment. One of the punishments under section 304-B of the Indian Penal Code, 1860 is for life can also be awarded which never can be minimized in years and that is one of the three categories in which 90 days are allowed for filing of the charge-sheet. Thus, it appears that the learned Magistrate has rightly refused to release the petitioner on bail under the provisions of section 168, Code of Criminal Procedure, 1973 [Pano Devi v State of Bihar, 2010 Cr LJ 3471 (3472) (Pat)].

In case when bail application is not maintainable on grounds of merit itself, its grant only on the basis that charge-sheet was not submitted within the prescribed period is not a sufficient ground. [Mohammed Arif Din Mohd Shaikh v State of Maharashtra, 1999 Cr LJ 2645 : 2000 (5) Bom CR 95 (Bom)].

Remedy of bail is not available, after filing of charge-sheet [Guna v State, 1997 Cr LJ 626 (Mad)].

Mere non-supply of forensic report does not vitiate the charge-sheet itself [Suresh Mahato v State of WB, 1997 Cr LJ 1798 : 1997 Cal CrLR 122 : 1997 (2) Cal HN 16 : 1997 (2) Rec Cr R 487 (Cal)].

An accused person against whom charge-sheet is not presented within the period of 90 or 60 days, is entitled to be offered bail as a matter of right. He need not apply. The bail has to be offered to him and he can be detained in further custody if he fails to furnish bail. The only provision under which an accused person can be detained thereafter is section 309 of the Code. However, for the exercise of that power the prerequisite is that there must be a charge-sheet pending before the Court. The right of the accused person under section 167(2) is absolute and indefeasible unless he fails to furnish the bail. Section 167(2) does not cease to apply even if the charge sheet is submitted after 90 or 60 days and the accused is entitled to ask for the right which had already accrued to him. Section 10 of the General Clauses Act is not applicable and cannot be invoked to defeat the right of an accused person to be freed. The Magistrate should monitor the remand proceedings during investigation in such a manner that a full account of the remand is handy and bail is offered to such accused person at the end of 90 or 60 days as the case may be [Powell Nwawa Ogechi v The State (Delhi Administration), 1986 Cr LJ 2081 : 1986 Chand Cr C 141 : 1986 Rajdhani LR 527 (Del)].

Release for not filing challan within time where challan report is not filed within time, it would be a ground for release on bail but when it is filed, aforesaid right does not survive or remain enforceable [Sanjay Dutt v State through CBI, Bombay, 1995 Cr LJ 477 : (1994) 5 SCC 410 : 1994 (3) Crimes 344 : JT 1994 (5) SC 540 (SC)].

The accused must file on application on the expiry of the period and before the filing of the charge-sheet to avail the benefit provided under the proviso to section 167(2), Code of Criminal Procedure, 1973. In the instant case the petitioner, claimed the benefit under proviso (a) to section 167(2), Code of Criminal Procedure, 1973 for the first time in the application which was filed long after the filing of the final report and the preliminary steps for trial had already begun, since the petitioner had not claimed that right before the filing of the final report and the preliminary steps for trial had already begun, the petitioner was not entitled to be released on bail under the proviso to section 167(2), Code of Criminal Procedure, 1973 [Ohana Kuttan Pillai v State of Kerala, 2004 Cr LJ 3453 : 2004 (2) Crimes 255 : ILR 2004 (Ker) 1 Ker 238 : 2004 (1) KerLJ 525 : 2003 (3) Ker LJ 1173 (Ker)].

Non-filing of charge-sheet within prescribed period of 90 days, entitles accused charged for offence under sections 302 and 34 of the Indian Penal Code, 1860 to be released on bail. [Rehemankha Kalukha v State of Maharashtra, 2002 Cr LJ 24 : 2002 (1) Bom LR 5 : 2001 (4) Mah LJ 582 (Bom)]. [s 167.34] Right of accused to be released on bail.—

Page 34 of 39 [s 167] Procedure when investigation cannot be completed in twenty-four hours.— Since the bail bond that was furnished after the charge-sheet was submitted by the prosecution, the indefeasible right claimed by the accused stood extinguished [Pratima Nayak v State of Orissa, 2011 Cr LJ 3236 (3238) (Orissa); (Uday Mohanlal Acharya v State of Maharashtra, AIR 2001 SC 1910 : 2001 Cr LJ 1832 relied on)].

In Bahadur Singh Sirka v State of Jharkhand, [2011 Cr LJ (NOC) 442 (Jhar)], it has been held that indefeasible right of accused to be released on bail after detention in custody for 90 days cannot be withdrawn after the charge-sheet has been submitted. In Som Nath v State of Punjab, [2011 Cr LJ 3097 (3101) (P&H)], it has been held that if the challan is not filed within the statutory period and is filed during the pendency of bail application then rights accrued to the petitioner under section 167(2) of the Code shall not stand curtailed.

In the present case, the charge sheet was filed on 9 September 2008 itself i.e. on the date when bail application was made. Once charge-sheet had been filed, the Magistrate was not supposed to consider the bail application under section 167(2), Code of Criminal Procedure, 1973. Moreover, in this case, magistrate has counted 180 days from 10 March 2008 i.e. from the date of incident. Section 167(2) envisages powers of magistrate from the date of production of accused before the Magistrate and not from the date of incident.

If powers are not exercised on 61st, 81st or 181st day, as the case may be, and is exercised on a day subsequent to which charge sheet has been filed, such an exercise of powers under section 167(2) is illegal since after filing charge-sheet, power to remand the accused to judicial custody for unlimited period ie till trial is over, starts and the accused can be released on bail only if he deserves bail on merits and not otherwise [Narcotics Control Bureau v Ashok Mittal, 2011 Cr LJ 1874 (1876) (Del) : (2011) ILR 2 Delhi 465].

The action of the investigating officer no filing only Post-mortem report and wound certificates of LW’s 1 and 2 cannot be treated as filing of report under section 173, Code of Criminal Procedure, 1973 and such act of investigating officer is nothing but a subterfuge and clearly not, in accordance with law and in conformity with the mandatory provisions of sub-sections (2) and (5) of section 173, Code of Criminal Procedure, 1973 [Puligada Pitcheswara Rao v State of AP, 2010 Cr LJ 2092 (2996) (AP)].

Bail petition under default clause under section 167(2), Code of Criminal Procedure, 1973 has to be filed first before the concerned Magistrate and not direct before the Session Judge [State of HP v Kanti Grover, 2004 Cr LJ 4355 (4360) (HP)].

When the investigation not completed within 90 days fixed by legislature, the accused is entitled to bail [State of Maharashtra v Bharti Chandmal Verma, AIR 2002 SC 285 : 2002 Cr LJ 575 : (2002) 2 SCC 121 : 2002 (1) Crimes 218 : 2002(1) East Cr C 77 (SC)].

Once the charge-sheet had been submitted before the accused was released on bail upon completion of the formalities, the right to get release stood extinguished Manotesh Ghosh v State of WB, 2011 Cr LJ 3013 (3016) (Cal)].

Non-production of accused in Court in pursuance to “B” warrant served upon him where he was confined would not entitled accused to be released on bail [Hafiz Afzal v UOI, 2002 Cr LJ 141 : 2001 All LJ 2132 : (2001) 43 All Cr C 731 (All)].

In the instant case, FIR was issued for offences under section 498A and 306, Indian Penal Code, 1860. Charge-sheet, however was filed for offences under sections 498A and 304B, Indian Penal Code, 1860 whether the offence shown in the FIR is considered or the offence shown in the charge-sheet petitioner will be punished for term not less than seven years, and therefore, section 167(2)(a)(ii), Code of Criminal Procedure, 1973 providing 60 days applies [Nadeem Ahmad v State, 2004 Cr LJ 4798 : AIR 2004 Kant HCR 3225].

Page 35 of 39 [s 167] Procedure when investigation cannot be completed in twenty-four hours.—

Where the punishment of imprisonment could be seven years or more or may extend to life but it need not be 10 years or more than 10 years imprisonment. So section 167(2)(a)(ii) of Code of Criminal Procedure, 1973 comes into play and not section 167(2)(a)(i), Code of Criminal Procedure, 1973 [Ameer v State of Karnataka, AIR 2004 Kant HCR 3202 : 2004 Cr LJ 4794 : 2005 All MR (Cri) 21 : 2004 (4) Crimes 255 (Kant)].

Right under proviso (a) to sub-section (2) of section 167 is indefeasible and is enforceable by the accused only from the time of default till filing of challan or charge sheet [Singamala Sankara Nath v State of AP, 2007 Cr LJ 884 (AP)]. [s 167.35] Railway Protection Force Act, 1974, section 17.— In the instant case, the accused moved an application under the proviso (a)(ii) to section 167(2), Code of Criminal Procedure, 1973 on the ground that the investigating officer could not complete the investigation within 60 days from the day of his arrest. It was held that the Magistrate had no power to take cognizance of offence committed by the investigating officer under section 17 of the RPF Act, 1957 and, therefore, the taking cognizance of offence under section 17 of the RPF Act and section 176, Indian Penal Code, 1860 was illegal [Manoj Kumar Gautam v State of UP, 2009 Cr LJ 3176 (3179, 3180) (All) : 2009 (4) All LJ 100 : 2009 (65) All Cri C 808]. [s 167.36] Cancellation of bail granted under section 167(2).— The provisions of sections 437(1), (2) and (5) being applicable to a person who has been released on bail under section 167(2); the Court can cancel bail by application of section 437(5) [Bashir v State of Haryana, AIR 1978 SC 55 : 1978 Cr LJ 173 : (1977) 4 SCC 410 ; Natabar v State of Orissa, AIR 1975 SC 1465 : 1975 Cr LJ 1212 : (1975) 2 SCC 220 ; Noor Md, 1980 Cr LJ (NOC) 27 : ILR (1978) 2 Del 442 (Del)] and the mere fact that subsequent to his release a challan had been filed is not sufficient to commit him to custody. This may be done when the Court comes to the conclusion that after the challan had been filed there are sufficient grounds of commission of a non-bailable offence and that it is necessary to commit him to custody. It may also be done on other grounds such as tampering with evidence or that his being at large is not in the interest of justice. The fact that before an order was passed under section 167(2) bail petitions were dismissed on merits is not relevant for taking action under section 437(5) [Bashir v State of Haryana, AIR 1978 SC 55 : 1978 Cr LJ 173 : (1977) 4 SCC 410 (SC); Ram Murti v State, (1976) Cr LJ 211 : 1975 All Cr C 270 : 1975 All WC 479 (All]. [s 167.37] Cancellation of bail.— For cancellation of bail granted under section 167 the provisions of sections 437–439 apply [Raghubhir v State of Bihar, AIR 1987 SC 149 , 161 : 1987 Cr LJ 157 : (1986) 4 SCC 481 (SC)].

After submission of charge-sheet, bail granted under section 167(2) may be cancelled by another Magistrate who comes to be in seisin of the case on the basis of materials on good grounds [Dhena Suren v State, 1977 Cr LJ 781 : 1977 BBCJ 22 (Pat)].

Order for bail under section 167(2) was passed. Before order was given effect to, prosecution submitted charge-sheet and applied for cancellation of bail.—Held cancellation of bail is illegal [Bijayketan Mohanty v State of Orissa, 1982 Cr LJ 1954 FB : (1982) 54 Cut LT 229 : 1982 East LR 34 (Ori)].

Section 167 does not empower cancellation of the bail, the power to cancel the bail can only be traced to section 437(5) or section 439(2) of the Code. Once an accused is released on bail under section 167(2) he cannot be taken back in custody merely on the filing of a charge-sheet but there must exist special reasons for so doing, besides the fact that the charge-sheet reveals the commission of a non-bailable crime. [Jagdish Singh v State of Punjab, 1996 Cr LJ 1289 : 1996 (2) Crimes 500 : 1996 (1) Rec Cr R 547 : 1996 (1) Chand Cr C 557 at p 1291 (P&H)]. [s 167.38] Proviso (b).— It is illegal to order remand without production of the accused and asking him whether he wishes anyone to represent him and giving him an opportunity to show cause [Re MR Venkatraman, AIR 1948 Mad 100 : (1948) 49 Cr LJ 41 : 1947 (2) Mad LJ 202 : 60 Mad LW 499 (2); Peary, 16 Cal WN 165; Shera, 1867 PR 39 ].

Page 36 of 39 [s 167] Procedure when investigation cannot be completed in twenty-four hours.— Production also enables the accused to make any representation that he may wish [Bal Krishna, AIR 1931 L 99]. It is mandatory for the Magistrate to have the prisoner produced before him when he commits him to custody. In this case for violation of this provision detention was held to be illegal, and as this illegal detention was not cured by order of remand under section 209 passed in his absence after filing of charge-sheet, the accused was held entitled to be released on bail under section 439 [Izhar Ahmed v State, 1978 Cr LJ 58 : 1977 All Cr C 335 : 1977 All WC 481 (All); P Navaneetha Krishnan v Commissioner of Police, (2008) 2 Mad LJ (Cr) 130 (Mad)]. It is plainly contrary to law to detain prisoners in jail without producing them before the magistrate subsequent to their first production and obtaining remand order [Khatri v State of Bihar, AIR 1981 SC 928 : 1980 Cr LJ 470 : (1981) 1 SCC 626 (SC)].

Though sending of case diary is of a mandatory character, evidence of witnesses cannot be disregarded for its violation [Kadavanathil Baby v State, 1983 Cr LJ 1186 (Ker)]. [s 167.39] Sub-section (3)—[Grounds to be recorded].— Recording of reasons for remand to police custody is imperative. Detention shall be allowed only in special cases and for reasons recorded and not as a matter of course whenever asked, the object being that the Magistrate shall consider whether on the facts placed there were good grounds [Kampu, 1 Cal WN 554; Amir Khan, 7 Cal WN 457; Khairati, AIR 1931 L 476; Kundan, 32 Cr LJ 785; Bal Krishna, AIR 1931 L 99; Krishnaji, 23 B 32; Peary, 16 Cal WN 145; Jai Singh, 33 Cr LJ 287; Artatran Mahasuara v State of Orissa, AIR 1956 Ori 129 : 1956 Cr LJ 909 : 22 Cut LT 351 : ILR (1956) Cut 267 ]. Remand without recording reasons may gravely prejudice the accused [Daulatram, AIR 1933 O 315].

In deciding whether or not detention should be allowed the Magistrate exercises judicial function [Sundar, AIR 1930 L 1945]. There must be no remand except in cases of real necessity [Dhruv Deb, AIR 1931 L 200]; something to satisfy that the accused’s presence would be indispensable for some discovery of evidence [Kampu, supra]. Remand is not permissible by merely recording orders like : “Allowed” [Kampu supra] or “They were to complete the enquiry as requested by the sub-inspector [Amir Khan, 7 Cal WN 457]. It cannot be granted for verifying confession [Radha Halwani, 7 Cal WN 220], or for pointing out the places through which the accused passed at the time of the dacoity or for identification in the village [Amir Khan, supra]. [s 167.40] Sub-sections (5) and (6). See ‘Changes’ above.— Section 167(6) empowers the Sessions Judge to direct further investigation by vacating the order of the magistrate stopping investigation under sub-section (5) on his own satisfaction on an application notwithstanding an application was not filed earlier before the Magistrate. The power is to be exercised by the Sessions Judge as a Court of original jurisdiction and he is required to consider the grounds raised in the application to satisfy himself whether further investigation should be made or not and give his own reasons [Superintendent and Remembrancer of Legal Affairs, WB v Nasima Ranga Rao, 1978 Cr LJ 1830 (Cal) : 82 Cal WN 407 : 1978 Cal HN 255 : 1978 (1) Cal LJ 205 ]. Though no time limit is fixed for an order under sub-section (6), considering the object of sub-section (5) unjustified long delay should result in refusal of relief [Binoy Kumar Ghosh v State of WB, 1980 Cr LJ (NOC) 58 : 1979 Cal HN 502 (Cal)].

The entire proceeding would not become without jurisdiction and nullity in those cases where investigation in a summons case is not completed within a period of six months. The object sought to be achieved by section 167(5) is to avoid delay in investigation and trial. This had become necessary because undertrial prisoners languished behind the bars for minor offences for a period, even without charge-sheet having been filed against them. This period at times exceeded the maximum period of imprisonment provided for the offence. Under section 167(5), if the charge-sheet is not filed within a period of six months from the date of arrest where permission for extension of time has not been taken from the Magistrate, the accused persons, if in jail, shall be released forthwith from detention [Hanuman Bux Agarwalla v Girish Chandra Gogoi, 1990 Cr LJ 2250 : 1990 (2) Gau LR 317 (Gau) (BL Hansaria and HK Sema JJ].

The charge-sheet against the accused was submitted by the police 2 and 1/2 years after his arrest under section 7(i)(a)(ii) of the Essential Commodities Act, 1955. Nothing indicated that the investigation was completed within six months from the date of arrest. The investigating officer had not made any prayer before the Court for permission to continue the investigation beyond six months. It was held that the special Court

Page 37 of 39 [s 167] Procedure when investigation cannot be completed in twenty-four hours.— could under section 167(5) stop further investigation and discharge the accused [Phalguni Dulla v State of WB, 1991 Cr LJ 565 : 1990 (2) Cal HN 154 : 1990 Cal CrLR 225 (Cal)].

Where the investigation is continued beyond six months without obtaining permission as—

(a) the trial is not vitiated but; (b) evidence collected beyond 6 months becomes inadmissible [State of HP v Rehmat Ali, 2000 Cr LJ 675 : 2000 (2) All CrLR 238 (HP) (MR Verma J.)]. [s 167.41] Time limit.— According to the High Court of Andhra Pradesh, section 167(5) does not prescribe a time limit for filing the charge sheet. The time limit is given in section 468. No doubt section 167(5) is mandatory, but the Magistrate can act upon the material gathered within 6 months. Merely because the investigation is not completed within six months the Magistrate is not authorised to charge the accused in a summons case [Public Prosecutor, AP High Court v B Anjaneyalu, 1986 Cr LJ 1456 : 1986 (1) Andh LT 301 : 1986 LS (AP) 92 : 1986 EFR 469 (DB)]. [s 167.42] Review.— Where the Judge did not allow the prayer of the investigating officer to investigate the case beyond the statutory period of six months and discharged the accused after dropping the case, the order passed by him could not but be a final order. Such an order cannot be subsequently recalled by the Judge, because the judge has no power to review a final order, in view of section 362 [Babulal Agarwalla v State, 1987 Cr LJ 1287 : 1987 (2) Crimes 907 : (1987) 91 Cal WN 818 : 1987 (1) Cal HN 218 : 1987 Cal CrLR 210 (Cal)]. [s 167.43] Limitation for filing of charge.— The Investigating Officer is enjoined to produce him before the magistrate having jurisdiction within 24 hours from the date of the arrest. Consequently, the limitation of one year would begin to run and be counted from next date of the arrest [CBI v Nazir Ahmad Sheikh, AIR 1996 SC 2980 : 1996 Cr LJ 1876 : (1996) 2 SCC 367 : 1996 SCC (Cri) 314 p 1877 (SC)]. [s 167.44] Police custody.— Whether the accused were arrested by the police or surrendered before the Magistrate, directly, the rule laid down by the Supreme Court that the Magistrate can give custody to the police only within the initial period of fifteen days holds goods. The law declared is comprehensive enough to cover all situations [Public Prosecutor v JC Narayana Reddy, 1996 Cr LJ 462 : 1996 (2) Andh LD 598 : 1996 (2) All CrLR 562 : 1996 APLJ (Cri) 11 p 464 (AP)].

When an application for police custody is contemplated within a period of 15 days on the initial remand, such an application for police custody ought to have been made only during the period of initial remand and when the investigation was pending. In the instant case the investigation was already over and final report also filed and the case was split up and in the absence of any application for further investigation the investigation was completed. It was held that the application, if entertained would amount to infringement of fundamental right guaranteed under Article21 of the Constitution of India [State v Sundaramoorthy, 2008 Cr LJ 898 (903) : 2007 (2) Mad LJ (Cri) 1676 (Mad-DB) : 2007 (2) Mad LW (Cri) 1010 : 2008 (2) Andh LT (Cri) 190 ]. [s 167.45] Further investigation.— The reason that has been given by the Sessions Judge for further investigation is for his satisfaction. The High Court cannot go into the question of the satisfaction of the sessions judge because the satisfaction of the sessions judge is a subjective satisfaction derived from the materials on record before him, including the case diary. [Ardhendu Sarkar v Subhash Chandra Chowdhary, 1996 Cr LJ 195 : 1996 (2) Cur Cr R 25 : 1996 (2) All CrLR 167, p 198 (Cal)].

Any prayer for extension of time for completing investigation beyond the prescribed period under section

Page 38 of 39 [s 167] Procedure when investigation cannot be completed in twenty-four hours.— 167(5), Code of Criminal Procedure, 1973 must be made by the Investigation Officer before the expiry of such period and any direction for continuation of the investigation given under section 167(5) after the statutory period will be without jurisdiction [Dilip Kumar Das v State of WB, (1993) Cr LJ 837 (Cal) : (1992) C CrLR (Cal) 350 (per Gitesh Ranjan Bhattacharjee J].

Section 167(5) does not admit of any individualised approach. Its application, rather where if applies, is rather total and composite. It is not that under section 167(5) investigation can be stopped in respect of the particular accused from the date of whose appearance or arrest, as the case may be, the prescribed period has already elapsed and at the same time allow the investigation to continue in respect of the other accused from the date of whose appearance or arrest the prescribed period has not yet elapsed. If the investigation is stopped under section 167(5) the whole of the investigation is brought to a grinding halt not only in respect of all accused but also in respect of the offence or offences which was or were the subject-matter of the investigation [Dilip Kumar Das v State of WB, (1993) Cr LJ 837 (Cal) : (1992) C CrLR (Cal) 350 (per Gitesh Ranjan Bhattacharjee J].

Section 167(5) has nothing to do with limitation periods for prosecution—a subject dealt with in sections 467 to 473. Section 468 (2) prescribes no limitation period for an offence punishable with imprisonment exceeding three years [Sri Balaji Traders v State of AP, 1990 Cr LJ 332 : 1989 (2) Andh LT 602 : 1989 (2) APLJ 114 (AP)].

The case in which investigation has not completed, there cannot be made prayer for stopping investigation of said case under section 167(5) and for taking aid of section 167(5), it is necessary that such allegation must be made in FIR as prescribed period of investigation may be determined [Kallol Kumar Mukherjee v State of WB, 1995 Cr LJ 654 (Cal) : (1994)2CALLT43(HC)].

Completion of investigation within period of six months from date of arrest—The facts of the case are that several accused persons were arrested on different dates. Where a question concerning the period of six months as specialised in section 167(5) arose, it was held that the computation of said period starts from the date of arrest of the first accused person [Subrtapatra v Director of Panchayat, 1995 Cr LJ 115 (Cal) : 1995 (1) CLJ (Crl) 520]. [s 167.46] Prevention of Terrorism Act.— A bail petition for offences under POTA must be first filed before the special Court, and on rejection appeal has to be filed before the Division Bench of the High Court [State of Gujarat v Salimbhai Abdul Gaffar Shaikh, 2003 Cr LJ 4348 (4353) SC : AIR 2003 SC 3224 : 2003 (3) Crimes 368 : (2003) 8 SCC 50 ].

The proviso inserted by section 49(2)(b) of POTA is in relation to the proviso to section 167(2) of the Code and not in respect of section 167(2) [Maulvi Hussein Haji Abraham Umarji v State of Gujarat, 2004 Cr LJ 3860 (3865) : AIR 2003 SC 3946 : 2004 (3) Crimes 241 : (2004) 6 SCC 672 ]. [s 167.47] Narcotic Drugs and Psychotropic Substances Act.— Section 167(2), Code of Criminal Procedure, 1973 is not applicable to such cases, covered by section 37 of Narcotic Drugs and Psychotropic Substance Act, 1985. In such cases, only if requirements of section 37(b) of the Act are satisfied accused can be released under the TADA Act on bail [Seemairaj v Asstt Collector of Central Excise, (1993) Cr LJ 844 (Mad) (Pratap Singh J)].

In Kartar Singh v State of Punjab, 1994 Cr LJ 3139 : (1994) 3 SCC 569 : 1994 (1) Crimes 1031 : JT (1994) 2 SC 423 , the Supreme Court upheld the validity of most of the provisions of TADA.

When an application of bail application of the accused applicant is moved under section 37 of Narcotic Drugs and Psychotropic Substances Act, an order was passed by High Court that the said bail application cannot be granted merely on the ground that challan was not filed within 90 days from the date of arrest because proviso to section 167(2) does not have overriding effect on section 37 of NDPS Act [Natha Singh v State of Punjab, 1995 Cr LJ 2532 (Punj)].

Page 39 of 39 [s 167] Procedure when investigation cannot be completed in twenty-four hours.— Where the charge for commission of offence under sections 8/18 of NDPS Act was provided against the accused person, but charge sheet was not filed with 90 days from date of arrest, it was held that accused would be entitled to be released on bail under provisions of section 167(2) [Gauri Shankar v Central Narcotics Bureau, Man Saur, 1995 Cr LJ 584 (MP)]. [s 167.48] Revision.— An order of remand of accused to police custody is an interlocutory order and no revision lies against it [State v NMT-Jay Immaculate, 2004 Cr LJ 2515 : AIR 2004 SC 2282 : 2004 (3) Crimes 136 : (2004) 5 SCC 729 ].

An order refusing to release the accused on bail under the provisions of section 167(2), Code of Criminal Procedure, 1973 is a final order and not an interlocutory order. The Sessions Judge is not correct in holding that the revision application is not maintainable [Ratan Mandal v State of Jharkhand, 2006 Cr LJ 781 (783) (Jhar) : 2005 (3 ) BLJR 2360 ].

6

Subs. by the Code of Criminal Procedure (Amendment) Act, 1978 (45 of 1978), section 13(a).

7

Subs by the Code of Criminal Procedure (Amendment) Act, 2008 (5 of 2009), section 14 (w.e.f. 31 December 2009) for the following clause (b): (b) no Magistrate shall authorise detention in any custody under this section unless the accused is produced before him;

8

Explanation numbered as Explanation II and Explanation I inserted by the Code of Criminal Procedure (Amendment) Act, 1978 (45 of 1978), section 13(b).

9

Subs by the Code of Criminal Procedure (Amendment) Act, 2008 (5 of 2009), section 14 (w.e.f. 31 December 2009) for the following Explanation: Explanation II.—If any question arises whether an accused person was produced before the Magistrate as required under paragraph (b), the production of the accused person may be proved by his signature on the order authorising detention.

10

11

Proviso inserted by the Code of Criminal Procedure (Amendment) Act, 2008 (5 of 2009), section 14 (w.e.f. 31 December 2009).

Ins. by the Code of Criminal Procedure (Amendment) Act, 1978 (45 of 1978), section 13(c).

End of Document

[s 168] Report of investigation by subordinate police officer.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER XII INFORMATION TO THE POLICE AND THEIR POWERS TO INVESTIGATE

The Code of Criminal Procedure, 1973 CHAPTER XII INFORMATION TO THE POLICE AND THEIR POWERS TO INVESTIGATE [s 168] Report of investigation by subordinate police officer.— When any subordinate police officer has made any investigation under this Chapter, he shall report the result of such investigation to the officer-in-charge of the police station. [s 168.1] Changes.— Section 168 corresponds to old section 168, verbatim. [s 168.2] Scope and application of section 168.— The scheme of the Code shows that while it is permissible for an officer in charge of a police station to depute some subordinate officer to conduct some of these steps in the investigation, the responsibility for every one of these steps is that of the person in the situation of the officer in charge of the police station, it having been clearly provided in section 168 that when a subordinate officer makes an investigation he should report the result to the officer in charge of the police station. It is also clear that the final step in the investigation, viz., the formation of the opinion as to whether or not there is a case to place the accused on trial is to be that of the officer in charge of the police station [HN Rishbud v State of Delhi, AIR 1955 SC 196 : 1955 Cr LJ 526 (SC); CP Raju v State of Kerala, ILR 2014 (3) Kerala 259 : 2014 (3) Ker LT 410 : 2014 Cr LJ 2936 (Ker); Hashim TK v Assistant Sub Inspector, Chandera Police Station, ILR 2014 (1) Kerala 666 : 2014 (2) Ker LT 346 (Ker); Tenny Joppen v State of Kerala, 2013 (3) KHC 706 : 2013 (3) Ker LT 819 (Ker)].

Report under this section and section 157 are not public documents [Arumugam, 20 M 189 (FB)]. The accused is not entitled to a copy of the final report to the Magistrate [See section 207].

End of Document

[s 169] Release of accused when evidence deficient.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER XII INFORMATION TO THE POLICE AND THEIR POWERS TO INVESTIGATE

The Code of Criminal Procedure, 1973 CHAPTER XII INFORMATION TO THE POLICE AND THEIR POWERS TO INVESTIGATE [s 169] Release of accused when evidence deficient.— If, upon an investigation under this Chapter, it appears to the officer-in-charge of the police station that there is no sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate, such officer shall, if such person is, in custody, release him on his executing a bond with or without sureties, as such officer may direct, to appear, if and when so required, before a Magistrate empowered to take cognizance of the offence on a police report, and to try the accused or commit him for trial. [s 169.1] Changes.— Section 169 corresponds to old section 169 with the omission of the words “or to the police officer making the investigation” after “police station”. [s 169.2] Scope and application of section 169.— Sections 169 and 170 do not talk of submission of any report to Magistrate, but a final report has to be submitted by the Investigating officer under section 173 [Kamalapati Trivedi v State of WB, AIR 1979 SC 777 , 795 : 1979 Cr LJ 679 : (1979) 2 SCC 91 (SC)]. The section applies to an accused who is not forwarded to a Magistrate [Rahu, 43 A 186]. If upon investigation by the officer in charge of the police station it appears that there is nothing to justify the sending up of the accused for trial, he shall release him after taking a bond for appearance and report the fact to the Magistrate [section 173(4)]. The bond is for the contingency that the Magistrate may not agree with the police report and may consider the evidence sufficient to put the person on trial. The release is provisional, for if the magistrate holds that there is prima facie case of a non-bailable offence, the accused should be rearrested and produced before him for orders [See Rahat, AIR 1933 A 582 and section 173(4)]. This provision is obviously to meet a contingency of the Magistrate, when he considers the report of the investigating officer, and judicially takes a view different from the police though there is no power on the Magistrate to call upon the police to submit a charge sheet when they have sent a report under section 169 [Abhinandan Jha v Dinesh Mishra, AIR 1968 SC 117 : 1968 Cr LJ 97 (SC)]. See further notes under sections 173 and 190. Even after release the police may carry on the investigation and submit a final report when sufficient evidence is found and then get the person rearrested.

After receiving a report from the police and after further investigation if the Magistrate forms an opinion on the fact that it constitutes an offence he may take cognizance of an offence under section 190(1)(c) notwithstanding the opinion of the police expressed in final report or of his earlier acceptance thereof. This cannot be construed to be reviewing or altering a judgment or final order within the meaning of section 362, Code of Criminal Procedure, 1973 [Thomas Nangtdu v State of Maharashtra, 2009 Cr LJ 4395 (4399) (Gau)].

Page 2 of 3 [s 169] Release of accused when evidence deficient.—

Where protest is lodged after a report under section 119 is filed to the Magistrate by the SHO and the complainant wants to be heard on the question whether the report should be accepted or not, then if the persons who are accused and in whose favour after investigation, the police has filed report, what to be heard, the Magistrate has a discretion to hear them. Rather, he should hear them in order to do justice to both the parties. But the hearing is to be confined to the point as to whether the report under section 169 is to be accepted or not and no further [Hardev Singh Sandhu v State of Rajasthan, 1986 Cr LJ 1515 : 1986 Raj LR 170 : 1986 (2) All CrLR 1 (Raj)].

A report under section 169, Code of Criminal Procedure, 1973 has been filed by that investigating officer of the case, who has conducted further investigation. From perusal of such report it is evident that the investigating officer has given too much importance to the call details of the mobile phone of the complainant. It appears that he has forgotten that it cannot be presumed that only the owner of a mobile phone can use his mobile phone and no other person can use or misuse the same. While considering this point the learned lower Court has given a very logical finding when it says that when the presence of the complainant at the police station after 35 minutes of the incident is not doubted how it can be taken as a gospel truth that at the time of the incident he was at a distance of 35 kms from the said police station [Chhotu Gupta v State of UP, 2011 Cr LJ 3731 (3734) (All)].

Under section 169, when a final report is submitted, the police is not bound to submit, with the report, all the police papers on the basis of which the investigation has resulted in the opinion of the police that no case is made out. But in such a case if police papers are submitted and the Magistrate, while considering the protest petition, looks into those papers including the case diary, there is nothing illegal. The hands of the Magistrate are not tied down by the report of the police. He can come to a different conclusion [Param Hansh Singh v State, 1988 Cr LJ NOC 16 (All)].

If a Judicial Magistrate thinks that a final report is not acceptable on the face of materials available before him, he can proceed under section 190 of the Code of Criminal Procedure, 1973 which empowers the Magistrates to take cognizance of any offence which is prima facie made out upon a complaint of facts; upon a police report; upon information from any person other than a police officer or upon his own knowledge. Powers conferred upon Judicial Magistrates under section 190, Code of Criminal Procedure, 1973 are wide enough so as to embrace the materials collected by the investigating officer within the sweep of complaint of facts or information received from a person other than a police officer or upon his own knowledge embodied in the provision of law [Irom Shyam Singh v State of Manipur, 2008 Cr LJ 3162 (3166) (Gau)].

When an order is passed by the Magistrate under section 169, Code of Criminal Procedure, 1973 discharging the accused, the complainant should be given an opportunity of being heard before such order is passed. [Dina Chetan Shah v Government of USSR, 2011 Cr LJ 3546 (3551) (Bom).

If an accused is arrested or surrender, and is sent to the jail by a judicial order (judicial custody remand) but during investigation the investigating officer moves an application with a prayer not to extend the judicial custody on which the Magistrate is having no option except to direct the accused to be released from the jail on furnishing the personal bond with or without surety. Such order is passed for a limited purpose. In any case such order is not having the effect as an accused released on bail under sections 437/439, Code of Criminal Procedure, 1973, releasing a person under section 169, Code of Criminal Procedure, 1973 is a provisional arrangement. [Rajesh Talwar v CBI, Delhi, 2011 Cr LJ 3691 (3705, 3706) (All)].

If after the completion of investigation final report is submitted to the concerned Court, that can be accepted by the same Court under section 169, Code of Criminal Procedure, 1973 but when complainant protests it, the Magistrate’s Court would examine the complainant and his witnesses on oath respectively under sections 200

Page 3 of 3 [s 169] Release of accused when evidence deficient.— and 202, Code of Criminal Procedure, 1973 Subsequently, he would indite his finding on the basis of collected evidence [Kallu v Shahid Ali, 1995 Cr LJ 3489 (All)].

Police has no power to decide a case on its own. Only a limited recognition to police report in respect of any offence is given [A Onkar v Commissioner of Police, Hyderabad, 1997 Cr LJ 2581 : 1997 (1) Crimes 203 : 1996 (4) Andh LT 733 (AP)].

If at the stage of the grant or, refusal of anticipatory bail certain aspects of the case are considered but later if the investigating agency files report under section 169, Code of Criminal Procedure, 1973, such a step would not amount to interference with the administration of justice [Satish Sharma v State of Gujarat, 2003 SCC (Cri) 1442 : AIR 2003 SC 648 : 2003 (1) Crimes 201 ].

The scheme of the Code is that if the investigating officer finds that there is no evidence against particular accused he has to simply release him on bail after taking a bond from him under section 169, Code of Criminal Procedure, 1973 [Abdul Razak Abdul Gani Dunge v State of Maharashtra, 2008 Cr LJ 133 (134) (Bom) : 2007 (6) AIR Bom R 257 : 2007 All MR (Cri) 3084].

End of Document

[s 170] Cases to be sent to Magistrate when evidence is sufficient.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER XII INFORMATION TO THE POLICE AND THEIR POWERS TO INVESTIGATE

The Code of Criminal Procedure, 1973 CHAPTER XII INFORMATION TO THE POLICE AND THEIR POWERS TO INVESTIGATE [s 170] Cases to be sent to Magistrate when evidence is sufficient.— (1) If, upon an investigation under this Chapter, it appears to the officer-in-charge of the police station that there is sufficient evidence or reasonable ground as aforesaid, such officer shall forward the accused under custody to a Magistrate empowered to take cognizance of the offence upon a police report and to try the accused or commit him for trial, or, if the offence is bailable and the accused is able to give security, shall take security from him for his appearance before such Magistrate on a day fixed and for his attendance from day to day before such Magistrate until otherwise directed. (2) When the officer-in-charge of a police station forwards an accused person to a Magistrate or takes security for his appearance before such Magistrate under this section, he shall send to such Magistrate any weapon or other article which it may be necessary to produce before him, and shall require the complainant (if any), and so many of the persons who appear to such officer to be acquainted with the facts and circumstances of the case as he may think necessary, to execute a bond to appear before the Magistrate as thereby directed and prosecute or give evidence (as the case may be) in the matter of the charge against the accused. (3) If the Court of the Chief Judicial Magistrate is mentioned in the bond, such Court shall be held to include any Court to which such Magistrate may refer the case for inquiry or trial, provided reasonable notice of such reference is given to such complainant or persons. (4) The officer in whose presence the bond is executed shall deliver a copy thereof to one of the persons who executed it, and shall then send to the Magistrate the original with his report. [s 170.1] Changes.— Section 170 corresponds to old section 170 with the following changes :

(1) In sub-section (2), the words “facts and” have been added. (2) In sub-section (3), the words “Chief Judicial Magistrate” have been substituted for “District Magistrate or Sub-divisional Magistrate”. (3) Old sub-section (5) has been numbered as sub-section (4). [s 170.2] Scope and application of section 170.— The section appears to contemplate a stage before the final report by the police. section170 does not come into

Page 2 of 2 [s 170] Cases to be sent to Magistrate when evidence is sufficient.— play if the accused be not in police custody and had either been released on bail or confined in jail [Kali Charan v State, AIR 1955 All 462 : 1955 Cr LJ 1146 ]. If upon investigation the officer in charge thinks that there are sufficient materials for bringing the accused to trial, he is bound to forward him to the Magistrate having jurisdiction [Govinda, 21 Cr LJ 769; See section 190] with a report under section 170 [Artatran Mahasuara v State of Orissa, AIR 1956 Ori 129 , 135 : 1956 Cr LJ 909 : 22 Cut LT 351 : ILR (1956) Cut 267 ] though the investigation is not yet completed, or if the offence is bailable, he shall take a bond (Sch II, Numbers 28, 29) for his appearance before the Magistrate on a fixed day which should be as soon as possible [Bheem, 6 WR 52]. But until the final or completed police report under section 173(2) is forwarded by the officer in charge of the police station to the Magistrate, the stage of his taking cognizance of offence under section 190(1)(b) on judicial consideration does not arise.

When exercising discretion under section 170 it is generally not the function of the police to pronounce on the truth or falsity of the allegations, if there is sufficient evidence, they are bound to send up without discussing probabilities or improbabilities. The position is the same as that of a Magistrate holding inquiry in a sessions case [Jaimal, AIR 1939 L 523]. It is doubtful if the discretion can be controlled by the Superintendent of Police [Umesh, 22 Cal WN 69].

It applies as well to the investigation of a non-cognizable offence under section 155(3) [Raghubar, AIR 1931 A 263]. Mere fact that the Magistrate has taken cognizance of a private complaint cannot deter the police from inquiring into offence which have come to their knowledge from other sources [Vijayraghava, AIR 1928 M 1268].

Once case has been registered, it must be followed by investigation. Investigation must result in filing either charge-sheet or final report, conducting investigation in a casual manner and submitting latter by Police Inspector to magistrate is illegal [Pradeep Dutta Bhowmik v State of Tripura, 2004 Cr LJ 1697 ].

Police have no right to take upon themselves not to charge a person against whom there is evidence because they require him as a witness. Section 306 (pardon) or section 321 (withdrawal) is to be involved to examine him as such [Keshav, AIR 1935 B 186; Lakshmandas Chaganlal Bhatia v State, AIR 1968 Bom 400 : 1968 Cr LJ 1584 : 69 Bom LR 808].

Property connected with the offence should be sent to the court and it is undesirable to leave them with the court inspector [Bhanu Lal Das v State of Tripura, AIR 1958 Tri 40 : 1958 Cr LJ 1549 ]. Once an article is sent to the court, it cannot be returned to the police for being sent to chemical examiner [State v Rasul Khan Chandkhan, AIR 1961 Guj 4 : 1961 (1) Cr LJ 54 (1)]. End of Document

[s 171] Complainant and witnesses not to be required to accompany police officer and not to be subjected to restraint.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER XII INFORMATION TO THE POLICE AND THEIR POWERS TO INVESTIGATE

The Code of Criminal Procedure, 1973 CHAPTER XII INFORMATION TO THE POLICE AND THEIR POWERS TO INVESTIGATE [s 171] Complainant and witnesses not to be required to accompany police officer and not to be subjected to restraint.— No complainant or witness on his way to any Court shall be required to accompany a police officer, or shall be subjected to unnecessary restraint or inconvenience, or required to give any security for his appearance other than his own bond : Provided that, if any complainant or witness refuses to attend or to execute a bond as directed in Section 170, the officer-in-charge of the police station may forward him in custody to the Magistrate, who may detain him in custody until he executes such bond, or until the hearing of the case is completed. [s 171.1] Changes.— Section 171 corresponds to old section 171 substituting the words “any Court” for the words “the Court of the Magistrate” for extending the protection to witnesses attending “Court” of Magistrate to witnesses attending “any Court”. [s 171.2] Note.— Witness should not be subjected to unnecessary restraint. The evidence of such witnesses cannot be accepted as voluntary [Bajrangi, 4 Cal WN 49].

End of Document

[s 172] Diary of proceedings in investigation.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER XII INFORMATION TO THE POLICE AND THEIR POWERS TO INVESTIGATE

The Code of Criminal Procedure, 1973 CHAPTER XII INFORMATION TO THE POLICE AND THEIR POWERS TO INVESTIGATE [s 172] Diary of proceedings in investigation.— (1) Every police officer making an investigation under this Chapter shall day by day enter his proceedings in the investigation in a diary, setting forth the time at which the information reached him, the time at which he began and closed his investigation, the place or places visited by him, and a statement of the circumstances ascertained through his investigation. 12 [(1A) The statements of witnesses recorded during the course of investigation under Section 161 shall be inserted in the case diary. (1B) The diary referred to in sub-section (1) shall be a volume and duly paginated.] (2) Any Criminal Court may send for the police diaries of a case under inquiry or trial in such Court, and may use such diaries, not as evidence in the case, but to aid it in such inquiry or trial. (3) Neither the accused nor his agents shall be entitled to call for such diaries, nor shall he or they be entitled to see them merely because they are referred to by the Court; but, if they are used by the police officer who made them to refresh his memory, or if the Court uses them for the purpose of contradicting such police officer, the provisions of Section 161 or Section 145, as the case may be, of the Indian Evidence Act, 1872 (1 of 1872), shall apply. [s 172.1] Changes.— Section 172 corresponds to old section 172. Sub-section (2) has been divided into sub-sections (2) and (3). [s 172.1.1] CrPC (Amendment) Act, 2008 (5 of 2009) .— This Amendment Act has inserted sub-sections (1A) and (1B) in section 172.

Section 172, relates to diary of proceedings in investigation. Two sub-sections (1A) and (1B) have been inserted so as to provide that the statements of witnesses recorded during the course of investigation under section 161 shall be recorded in the case diary and that such diary shall be a bound volume and duly paginated [vide Notes on Clauses, Clause 17]. [s 172.2] Scope and application of section 172.— This section directs the investigating officer to keep a Diary (called “Special” or “Case” Diary) in which shall be entered from day to day the particulars mentioned. It is a sort of daily report of the steps taken in the investigation. The object of the diary is to check their work or method and the Magistrate or the Judge who will try the case may ascertain what the information, true, false or misleading, which was obtained from day to day report and what were the lines of investigation [Mannu, 19 A 390, FB; approved in Khatri v State of Bihar, AIR 1981 SC 1068 : (1981) 2 SCC 493 : 1981 Cr LJ 597 (SC); Peary, 6 Cal WN 145].

Page 2 of 6 [s 172] Diary of proceedings in investigation.—

Section 172 of the Code has a meaningful bearing on the entire investigation by a police officer. It is mandatory for him to maintain a diary under this chapter where he shall enter day-by-day proceedings in the investigation carried out by him. He is expected to mention time of events and his departure, reporting back and closing of the investigation, the place/places he visited and the statements he recorded during investigation. The statement of the witness which is recorded during the investigation under section 161 shall be inserted in that diary. A Criminal Court is empowered under section 172(2) to send for the diaries and they could be used by the Court but not as evidence in the case but to aid it in such inquiry for trial [Sidhartha Vashisht v State (NCT of Delhi), AIR 2010 SC 2352 : (2010) 6 SCC 1 ].

Sub-section (2) says it may be used by the Court to aid it in the trial but not as substantive evidence for coming to a decision. As sub-section (3) says, the diary is absolutely protected and the accused has no access to it. But if the police officer when giving evidence uses it to refresh his memory or if the Court uses it to contradict him (corroboration is not permitted), the privilege goes and section 161 or section 145 of the Indian Evidence Act, gives the right to contradict the police officer’s evidence by his entries in the diary. The entries in case diary may be used by the police officer who made it for refreshing his memory or by court for contradicting him [Omprakash v State, 1980 Cr LJ (NOC) 67 : ILR (1979) 2 Del 355 (Del)].

FIR was lodged almost within half an hour by the injured person. Not only was he suffering from discomfort but he had also to witness the killing of his close friend. In such circumstances, one can understand that he had omitted to maintain the fact that the assistant had left the arms of the deceased [Behari Prasad v State of Bihar, AIR 1996 SC 2905 : 1996 Cr LJ 1653 : (1996) 2 SCC 317 : 1996 (1) Crimes 11 (SC)].

Section 172(3) does not limit jurisdiction of Court under section 91, Code of Criminal Procedure, 1973. [Dhananjay Kumar Singh v State of Rajasthan, 2006 Cr LJ 3873 (Raj) : 2006 (4) WLC 296 ].

The general diary entries are summary entries relating to movement of police, or relating to the fact that some information regarding an offence has been given at the police station. The doubts created in the instant case on the ground that what more could have been mentioned in the general diary, or that there are minor variations in the statements of prosecution witnesses. The apex court held that it cannot be said to be reasonable doubt. [Dhal Singh Dewangan v State of Chhattisgarh, AIR 2016 SC 4745 : 2016 (9) Scale 142 ]. [s 172.3] Object.— Object is to enable the Court to check the method of investigation [State of Bihar v PP Sharma, AIR 1991 SC 1260 : 1991 (2) Crimes 113 : 1991 Cr LJ 1428 SC] . [s 172.4] Scheme.— The Scheme of section 172 is explained in detail by the Supreme Court in Mukund Lal v UOI, (1989) Supp 1 SCC 622 : AIR 1989 SC 144 : 1989 Cr LJ 872 ]. The mandatory duty cast on the investigating agency to maintain a case diary of every investigation on a day-to-day basis and the power of the Court under section 172(2) and the plenary power conferred in the high courts by Article 226 of the Constitution are adequate safeguards to ensure the conduct of a fair investigation [VK Sasikala v State, AIR 2013 SC 613 : (2012) 9 SCC 771 ]. [s 172.5] Contents.— A case diary includes FIR, statements of witnesses recorded by Police and injury report etc. and the trial Court has the right to go through these materials before framing a charge or discharging an accused. Therefore, where the court has not been influenced by certain documents which were not supplied to accused or relied upon by prosecution and satisfied itself on perusal of necessary documents including case diary that there is prima facie material to frame a charge against the accused, there is no illegality [Hemanta Kumar Mondal v State of WB, (1993) Cr LJ 82 (Cal) (Siba Prasad Rajkhowa J)].

The police diary is to contain only the “proceedings” of the police officer. Statements of witnesses examined in the investigation are recorded under section 161; they must not be recorded in the diary and if recorded (a

Page 3 of 6 [s 172] Diary of proceedings in investigation.— device that was much used formerly to give the seal of privilege), they are not protected as section 162 as amended by Act 18 of 1923 gave the accused a right to get copy of such statements wherever recorded and in whatever form [See Sheru, 20 C 642; Mafizaddi, 31 Cal WN 940; Sadhu 32 Cal WN 280; Dadan Gazi, 33 C 1023; Nga Lun, AIR 1935 R 370, FB; Sulaiman, AIR 1929 R 87; Hafiz Md, AIR 1931 P 150]. Section 173(4) as amended by Act 26 of 1955 made it obligatory on the police to supply a free copy of such statements to the accused. In the present Code under sections 173(5), (6) and (7), the police shall supply copies to the magistrate who under section 207 shall furnish copies to the accused free of cost.

Section 172 applies to all police officers making investigation [Jahangir, 35 Cr LJ 1180]; Entries in the personal diary of a police officer who did not start or take part in the investigation are not within the section and are not inadmissible [Kalia, AIR 1925 C 959 : 26 Cr LJ 579]. Section 172 does not apply to an inquiry or investigation under section 174 [Palaniswami Vaiyapuri v State, AIR 1968 Bom 127 : 1968 Cr LJ 453 ]. [s 172.6] Diary and its contents.— The nature of the contents is generally stated in sub-section (1). It is a record of “proceedings” of the investigating officer [Sheru, 29 C 642, 648]. It is intended for recording what he did, the places where he went, the people he visited, what he saw etc. Statements of witnesses examined must not find place in it. They are governed by sections 161, 162 [Mafizuddi, 31 Cal WN 940]. Supervision notes in the diary usually make it more intelligible [per Dhavle J, Manuchik, AIR 1938 P 290]. The diary must be kept accurately as provided [Jahangir, AIR 1935 L 230; Hiralal, AIR 19 Cr LJ 517]. Since a “copy of the entries” is to be sent under section 167 to the Magistrate to decide whether an accused should be detained in custody, it is intended that information in the diary should be as complete as possible [Mannu, 19 A 390, 405, FB]. The practice of noting on loose pieces of paper and afterwards entering in the diary is objectionable [Laxman, AIR 1952 N 33]. Failure to keep the diary lays the police officer’s evidence open to adverse criticism, but does not make it inadmissible [Zahiruddin v King-Emperor, AIR 1947 PC 75 : 74 IA 80 : 51 Cal WN 555 : 1947 (1) Mad LJ 399]. The entries should be made with promptness, in sufficient detail, mentioning all significant facts, in careful chronological order and with complete objectivity [Bhagwant Singh v Commissioner of Police, Delhi, AIR 1983 SC 826 : 1983 Cr LJ 1081 : (1983) 3 SCC 344 : 1983 (2) Crimes 480 (SC)].

In Sadhu Singh v State of UP, 78 SC 1506 the Apex Court held that the entries in the G.D. are made of the events that take place in the police station in chronological order and that it is ordinarily difficult to fabricate false entries therein. The police investigation in Subhash v State of UP, AIR 1976 SC 1924 : 1976 Cr LJ 1521 : (1976) 3 SCC 629 was severely criticised by the apex court for omission on the part of the IO to make necessary entries in relation thereto in the GD The contents of the general diary (GD) which is a contemporaneous record of the happenings in the concerned police station usually provides an account or the state of affairs therein, apart from, the steps taken by the incharge of the police station in matters pertaining to his official duties. It would however be difficult to certify that the contents of a GD would under all circumstances furnish and intractable assurance that there had been no omission to record any incident taking place in the police station. This is more so when there is a charge of assaults on the inmate of the lockup by the police personnel attached thereto. Section 63 of the Assam Police Manual part though lays down the requirement of making entries in the GD and also outlines he matters for the said purpose, it is ultimately the officer concerned in-charge of making the entries, who is to record the same. The proposition of law as laid down in Sadhu Singh (supra) cannot be construed to be an absolute guarantee against possible and deliberate omissions on the part of the officer concerned in recording events in the police station having the potential of implicating the person there in a criminal charge. The issue has to be judged in the facts of each case [Alok Deb Roy v State of Assam, 3048 (Gau)]. [s 172.7] Purpose of introducing Section 172(1B).— Section 172(1B) of the code which came into force w.e.f 31 December 2009 postulates that the diary referred to in sub-section (1) of section 172(1B) shall run in volume and duly paginated. The purpose of the amendment is to ensure that possibility of tampering with the case diary or realigning the same at a later date to subserve the prosecution case, is completely ruled out. [Atluri Padma Venkateshwara Rao v PI Pawar, 2011 Cr LJ 1439 (Bom)]. [s 172.8] Sub-section (2) : “Criminal Court may send for police diaries”.— Criminal Court includes of course the High Court and the Sessions Court (section 6). A general order by a Sessions Judge that in every case committed, police diary shall be submitted is illegal [Mannu, 19 A 390, FB].

Page 4 of 6 [s 172] Diary of proceedings in investigation.— The court may call for and look into the diary to determine whether reference should be made to the High Court [Rebati, 32 Cal WN 945 : AIR 1929 C 57]. [s 172.9] Use of diary by Court.— The duty to peruse case diary is incumbent upon a public prosecutor and almost always upon a Court trying serious offences. When cases for prosecution and defence are both inadequate, the case diary enables the Court to discover for itself material facts which can be brought to light through examination of witnesses and arrive at truth in the interest of justice [Priyalal Barman v State, AIR 1970 A&N 137 : 1970 Cr LJ 1599 ]. The Court has to be particularly cautious and astute in the matter of the use of the diary, for it may appear a little puzzling that while it can look into means that the Court can take its aid in the inquiry or trial to suggest means for elucidating points which need clearing up or it may lead to the discovery of relevant evidence, but the diary must not be used as substantive evidence of any fact stated in it for coming to a decision. It is not evidence of any date, fact or statement in the diary which must be proved by legal evidence [Dal Singh, 44 C 876 : AIR 1917 PC 25 : 44 IA 137 : 21 Cal WN 818 and Habeeb Md v State of Hyderabad, AIR 1954 SC 51 : 1954 Cr LJ 338 : 1954 SCR 475 (approving Mannu, 19 A 390, FB infra); See Nga Lun, AIR 1935 R 370, FB, Dikson, AIR 1942 P 90; Ahmed Mia, AIR 1944 C 243; Jabad Das, 27 C 295; Sundar, AIR 1921 L 267; Sanmon, 38 Cr LJ 102; Omparkash v State, 1980 Cr LJ (NOC) 67 : ILR (1979) 2 Del 355 (Del)]. So, when the Court tested the testimony of witnesses still further by comparing it with their earlier statements to the police entered in the diary (this, however, should not occur now as statements of witnesses are governed by section 162 and their inclusion in the diary is prohibited) it was plainly wrong as they were used as evidence [Dal Singh, supra; Ram Rang, AIR 1928 L 820; Sakal, 32 Cr LJ 735; AH Abdulla v State of Kerarla, 1981 Cr LJ (NOC) 55 : ILR (1981) 1 Ker 508 : 1990 ACJ 180 (Ker)]. The Court cannot use confession and statements in case diary to disbelieve prosecution or defence case [Narayanan v Krishnan, 1981 Cr LJ 563 (Ker)]. The Court cannot make use of the police diaries at all in its judgment and seek confirmation of its opinion from statements in the diaries [Habeed Md, supra]. The Court cannot, therefore, use the diary without confronting the officer who made it [State v Fateh Bahadur, AIR 1958 All 1 : 1958 Cr LJ 1 ].

If the Court peruses any material in the case diary and uses it, to its aid in trial, this must be recorded in the judgment. However, the Court cannot use any portion of the case diary as evidence [Nagina Khatoon v State of Bihar, 2003 (3) Crimes 173 (Pat)].

The power of the Court to use the diary is not limited to the use of it for enabling the police officer who made it to refresh his memory or for contradicting him. The Court may also use the diary not as evidence of any date, fact of statement referred to in it, but as containing indications of sources and lines of enquiry and as suggesting the names of persons whose evidence may be material. If the diary is used, the accused is entitled to see the particular entry which has been referred to for either of the above purposes and so much of the diary as in the opinion of the Court is necessary in that particular matter to the full understanding of the particular entry so used, and no more [Mannu, 19 A 390, FB, approved in Dal Singh, 44 C 876, PC; Khatri v State of Bihar, AIR 1981 SC 1068 : 1981 Cr LJ 597 : (1981) 2 SCC 493 (SC)].

The diary may furnish indicative evidence, e.g., it may give sources and lines of enquiry and names of persons who may be able to give material evidence [Mannu, 19 A 393, 395, FB; Nga Lun, AIR 1935 R 370; Abdul Rahim, 10 Cal WN 600], or the Court may put some necessary questions to a witness on the basis of some fact noted in the diary [Deolal, AIR 1933 P 490; Rajaram, AIR 1927 O 64], or it may be used for clearing up ambiguities in evidence or bringing out relevant facts [Mohammad, AIR 1926 L 54], or in the appreciation of evidence, but not for corroboration of prosecution witnesses [Achhaibat, AIR 1921 P 331; Ramcharita, 3 PLJ 568; Salik, AIR 1937 O 201; Sakal, AIR 1931 P 96].

The court is not justified in using the diary to the prejudice of the accused even if he requests to look at it [Sheikh Yusuf v Emperor, AIR 1946 Pat 127 : (1947) 48 Cr LJ 165 : 227 IC 625; Mannalal, 25 Cr LJ 49]. When the diary relates not to the case under trial but the counter case, the principles of section 172 apply and the Court may use it for the same purpose [Ahmed Mia, AIR 1944 C 243]. [s 172.10] Evidentiary value.— Police diary section 172 has no evidentiary value. However officer in police control room is not investigating officer. Entries made by him can be given to accused [Siva v State, 2000 Cr LJ 4465 (Mad)].

Page 5 of 6 [s 172] Diary of proceedings in investigation.—

The court is not empowered to pursue case diary for purpose of explaining contradiction. [Mahabir Singh v State of Haryana, AIR 2001 SC 2503 : 2001 Cr LJ 3945 : (2001) 7 SCC 148 : 2001 (3) Crimes 366 (SC)]. [s 172.11] Diary is privileged—When is privilege relaxed in favour of accused?— The diary is absolutely privileged. The accused is not entitled to call for it, nor to see it even if it is referred to by the court. He has no right to make any use whatever of it unless— (1) the police officer who made the diary is allowed to refresh his memory with it, or (2) the Court uses it for contradicting him. It is only in these two events that the diary becomes available to the accused for contradicting the police officer under section 145, Evidence Act or for inspection under section 161, ibid, for his cross-examination [see Mannu, 19 A 390, 405; Dharambir, AIR 1933 L 498; GP Sharma v State of MP, 2002 Cr LJ 3104 (3106) : 2002 (3) MPLJ 291 : 2002 CrLR (SC&MP) 360; MP Sidarth v State of Bihar, 2005 Cr LJ 4499 (SC) : AIR 2005 SC 4352 : 2005 (4) Crimes 135 : 2006 SCC (Cr) 175]. It has, however, been held that though an accused has no right, there is no legal bar to a Court permitting the defence lawyer to see the diary to verify what the accused told the police as recorded there, in the interest of justice for the purpose of defence. There is a heavy responsibility on court in the user of diaries under section 172(2) and Public Prosecutors to bring to the notice of the Judge anything in the diary favourable to the accused [Re Malagan, AIR 1953 Mad 179 : 1953 Cr LJ 424 : 1952 (2) Mad LJ 186 : 1952 Mad WN 608]. As the law stands even if there be something in his favour in the statement of an accused in a diary, it is difficult to use it by the defence [Re Vokkaligara Yengtappa, AIR 1952 Mad 535 , 538 : 1952 Cr LJ 1150 : 1952 (1) Mad LJ 62 : 1952 Mad LW 974.] In this case the High Court made use of the diary in favour of the accused.

Bar against production and use of case diary in an inquiry or trial of an offence is limited because the bar does not operate if it is used by the police officer for refreshing his memory or by the Court for contradicting such police officer [Khatri v State of Bihar, AIR 1981 SC 1068 : 1981 Cr LJ 597 : (1981) 2 SCC 493 (SC)]. The Court may allow the diary to be used by the police officer who made it to refresh his memory, and not by other officers for the purpose [Mannu, 19 A 390; Dal Singh, 21 Cal WN 818, PC]. The accused has no right to insist upon a police officer refreshing his memory by the diary [Mohinder, AIR 1932 L 103; Kalichurn, 8 C 154, 156; Jhubboo, 8 C 739, 745; Raghuni, 9 C 455]. But if it appears that although he pretends that his memory need not be refreshed, he is making inaccurate statements or trying to suppress some thing material with the object of preventing disclosure of facts damaging to the prosecution by maintaining the privilege of the diary, the court ought to make him look into it. Thus, it has been held that if the police officer takes cover under lapse of memory and the Court asks him to refresh his memory he is under an obligation to do so as the whole truth must be laid bare [Harkhu, AIR 1921 A 86; Mohiuddin, AIR 1924 P 829]. It is not for the witness to decide for himself whether he should disclose a material fact which may decide whether an accused is guilty or not. When the point can be cleared up by a reference to the diary the Court can compel the witness to refresh his memory [Fatnaya, AIR 1942 L 89]. The accused is entitled to the benefit of refusal to refer to the diary and to disclose source of information [Deodhari, AIR 1925 P 131].

The right of inspection is limited only to that portion of the diary which is referred to by the police officer [Lachmi, 2 P 74; Jhubboo, 8 C 739, 745; See Sarkar’s Law of Evidence, 13th Edn, p 1365]. If the diary is used the accused is entitled to see the particular entry referred to and to so much of the diary as in the opinion of the Court is necessary to the full understanding of the particular entry so used and no more [Mannu, 19 A 390 FB]. The wholesale admission of police diary was condemned [Koganti, AIR 1938 M 893].

Before the Court uses the diary for contradicting the police officer it must comply with section 145, Evidence Act and call the witness’s attention to the relevant parts. No witness other than the maker of the diary can be contradicted [Mannu, supra, p 394; Dharam, 34 Cr LJ 464; Munpl Commr, AIR 1926 L 365]. When the witness is contradicting himself, the right procedure is to ask the Court to look into the diary and decide whether the accused should not have a copy of the statement. If such copy is granted, the witness’s attention must be called to the same [Kashiram, AIR 1928 A 280]. The defence cannot inspect the diary unless the Court uses it for contradiction [Dhram, AIR 1933 L 489]. It cannot be used for corroboration [Achhaibat, 22 Cr LJ 374; Dakal, 32 Cr LJ 735].

The facts found in the diary cannot be used until they are properly proved by examining the writer [Dal Singh,

Page 6 of 6 [s 172] Diary of proceedings in investigation.— 44 C 876, PC; Habeeb Md v State of Hydrabad, AIR 1954 SC 51 : 1954 Cr LJ 338 (SC); Bholaram Dalmia v State, AIR 1955 Cal 234 : 1955 Cr LJ 752 : 58 Cal WN 597; Deolal, AIR 1933 P 440]. It is the same in the case of statements recorded under section 162; See ante, section 162; “if duly proved”. [s 172.12] Case diary—Scrutiny—Necessity of.— Where the statements of eye-witnesses corroborated with medical evidence and they are coming forward to discharge an obligation the trial Court should not closely scrutinise the case diary [Bhai Lal v State of UP, 1998(9) SCC 66 ]. [s 172.13] Production of daily diary.— Production of daily diary is not a routine matter. [Kalpnath Rai v State, AIR 1998 SC 201 : 1998 Cr LJ 369 : (1997) 8 SCC 732 : (1997) (4) Crimes 227 (SC)]. [s 172.14] Daily diary—Non-production of.— Non-production of daily diary by prosecution is of no consequence, through it is open to the defence to seek its production if the defence wants to make use of it. [Kalpnath Rai v State, AIR 1998 SC 201 : (1997) 8 SCC 732 : 1998 Cr LJ 369 : 1997 (4) Crimes 227 (SC)]. [s 172.15] No bar against production and use in civil or writ proceeding.— There is no bar against production in a civil proceeding or in a writ proceeding particularly when the party seeking production is neither an accused nor an agent of the accused in the offence to which diary relates, [Khatri v State of Bihar, AIR 1981 SC 1068 : 1981 Cr LJ 597 : (1981) 2 SCC 493 (SC); Mukund Lal v UOI, AIR 1989 SC 144 : 1989 Cr LJ 872 (SC)]. [s 172.16] Defect in investigation.— The testimony of the witnesses if found credible and cogent, the defect on the part of the investigating officer cannot be taken into account. [Asif Khan v State of Uttranchal, 2006 Cr LJ 4564 (4569) (Uttra)]. [s 172.17] No right to Inspect Daily Diary.— The denial of right of accused to inspect police diary is not arbitrary. Police diary is only a record of day-to-day investigation made by investigating officer. Neither accused nor his agent is entitled to call for such case diary and also are not entitled to see them during course of inquiry or trial. The unfettered power conferred by statute under section 172(2) of Cr PC on court to examine entries of police diary would not allow accused to claim similar unfettered right to inspect case diary and it cannot be characterised as unreasonable and arbitrary. [Balak Ram v State of Uttarakhand, AIR 2017 SC 2375 : (2017) 2 Mad LJ (Cr) 688].

12

Ins. by the Code of Criminal Procedure (Amendment) Act, 2008 (5 of 2009), section 15 (w.e.f. 31 December 2009).

End of Document

[s 173] Report of police officer on completion of investigation.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER XII INFORMATION TO THE POLICE AND THEIR POWERS TO INVESTIGATE

The Code of Criminal Procedure, 1973 CHAPTER XII INFORMATION TO THE POLICE AND THEIR POWERS TO INVESTIGATE [s 173] Report of police officer on completion of investigation.— (1) Every investigation under this Chapter shall be completed without unnecessary delay. 13 [(1A) The investigation in relation to rape of a child may be completed within three months from the date on which the information was recorded by the officer in charge of the police station.] (2) (i)

As soon as it is completed, the officer-in-charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government, stating— (a) the names of the parties; (b) the nature of the information; (c) the names of the persons who appear to be acquainted with the circumstances of case; (d) whether any offence appears to have been committed and, if so, by whom; (e) whether the accused has been arrested; (f)

whether he has been released on his bond and, if so, whether with or without sureties;

(g) whether he has been forwarded in custody under Section 170. 14 [(h) whether the report of medical examination of the woman has been attached where investigation relates to an offence under Sections 376, 376A, 376B, 376C, 15[376D or section 376E of the Indian Penal Code (45 of 1860).]] (ii) The officer shall also communicate, in such manner as may be prescribed by the State Government, the action taken by him to the person, if any, by whom the information relating to the commission of the offence was first given. (3) Where a superior officer of police has been appointed under Section 158, the report shall, in any case in which the State Government by general or special order so directs, be submitted through that officer, and he may, pending the orders of the Magistrate, direct the officer-in-charge of the police station to make further investigation. (4) Whenever it appears from a report forwarded under this section that the accused has been released on his bond, the Magistrate shall make such order for the discharge of such bond or otherwise as he thinks fit.

Page 2 of 25 [s 173] Report of police officer on completion of investigation.— (5) When such report is in respect of a case to which section 170 applies the police officer shall forward to the Magistrate along with the report— (a) all documents or relevant extracts thereof on which the prosecution proposes to rely other than those already sent to the Magistrate during investigation; (b) the statements recorded under section 161 of all the persons whom the prosecution proposes to examine as its witnesses. (6) If the police officer is of opinion that any part of any such statement is not relevant to the subject-matter of the proceedings or that its disclosure to the accused is not essential in the interests of justice and is inexpedient in the public interest, he shall indicate that part of the statement and append a note requesting the Magistrate to exclude that part from the copies to be granted to the accused and stating his reasons for making such request. (7) Where the police officer investigating the case finds it convenient so to do, he may furnish to the accused copies of all or any of the documents referred to in sub-section (5). (8) Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under sub-section (2) has been forwarded to the Magistrate and, where upon such investigation, the officer-in-charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of sub-sections (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under sub-section (2). [s 173.1] Changes.— Section 173 corresponds to old section 173 with the following changes:—

(1) Sub-section (1) has been divided into sub-sections (1) and (2) and redrafted, the changes being shown in italics. (2) Old sub-sections (2) and (3) have been renumbered sub-sections (3) and (4) respectively. (3) Sub-section (5) has been substituted for old sub-section (4). (4) Old sub-section (5) has been renumbered sub-section (6) and redrafted, the alterations being shown in italics. (5) Sub-sections (7) and (8) have been added.

Material changes introduced are:

(1) In the report to be forwarded under sub-section (2)(i), additional information is required to be stated on points mentioned in clauses (d) and (e). (2) Under old sub-section (4) it was obligatory on the police to supply copies of documents on which prosecution proposed to rely, to the accused before the commencement of the inquiry or trial; but under the new sub-section (5) the police officer shall now forward all such documents to the Magistrate and the statutory duty of furnishing copies of the documents to the accused has been laid on the Magistrate taking cognizance (See section 207). If the police officer wants any statement to be excluded from the copies to be supplied to the accused by the Magistrate, he shall indicate that part of the statement stating reasons for exclusion [see sub-section (6)]. The police officer may also furnish to the accused copies of all or any documents if he finds it convenient [see sub-section (7)].

Page 3 of 25 [s 173] Report of police officer on completion of investigation.— (3) Under the old provision there was a conflict of opinion whether, after submission of a report under subsection (2) the police could submit further report, specially on receipt of further evidence. New subsection (8) provides clearly that supplementary report or reports can be submitted.

Sending of report under section (2) does not preclude further investigation and consequently, supplementary report or reports can be submitted on receipt of further evidence. [s 173.1.1] CrPC (Amendment) Act, 2008 (5 of 2009).— This Amendment Act has added a new sub-section (1A) as well as added a new clause (h) in sub-section (2).

Section 173 relates to report of police officer on completion of investigation. A new sub-section (1A) has been added with a view to provide that the investigation of the offence of rape of a child shall be completed within three months from the date on which the information was recorded by the officer-in-charge of the police station. New clause (h) has been added to sub-section (2) of section 173 to ensure that the police report in cases of rape and custodial rape includes the report of medical examination where investigation relates to an offence under sections 376, 376A to 376D of the Indian Penal Code (vide Notes on Clauses, Clause 18). [s 173.1.2] Criminal Law (Amendment) Act, 2013 .— Thisis a consequential change brought about by the present amendment which seeks to enlarge the scope of the sexual acts enumerated in section 173(2)(i)(h). [s 173.2] Scope and application of section 173.— This is the “final” or last report to be submitted “as soon as” the police investigation is completed. It is known as the “Completion Report” and constitutes the “Charge-sheet” or the “Challan” (name used by the police in Calcutta for their Report to Presidency Magistrates). Altogether, the various reports are—(1) Report to the Magistrate under section 157 after information at the Thana (section 154) or received otherwise so that action, if necessary, may be taken under section 159 (2) Report to the Magistrate under section 167 with a copy of case diary accompanied by the accused for a remand in order to complete investigation. (3) Report under section 168 by a subordinate police officer to the officer in charge. (4) Interim report under section 170 when evidence is sufficient. (5) “Final” or last report (section 173) to the magistrate by the officer-in-charge. When charge-sheet or challan is submitted, this is the report containing the considered opinion of the investigating police officer that there are sufficient grounds for sending the accused to the Magistrate for cognizance. The report leads to trial if the Magistrate approves of it and takes action. When no charge-sheet or challan is warranted, the police has to report that there is no case against the accused, or that though the case is true there is no sufficient or reliable evidence is support, or that the case is false. There must be a report in every case [Appa Ragho, 17 Bom LR 69].

Section 173 commands the investigating agency to complete the investigation expeditiously without unnecessary delay and when such an investigation is completed, the officer in charge of the police station shall forward to a Magistrate empowered to take cognizance of offence on a police report with the details in the form as may be prescribed by the State Government and provide the information required under this section [Sidhartha Vashisht v State (NCT of Delhi), AIR 2010 SC 2352 : (2010) 6 SCC 1 ].

The Magistrate will not start proceeding against a person as a routine merely because the police have submitted a charge-sheet. He will review the facts independently and see whether the acts alleged constitute an offence under the law and whether the evidence and the circumstances justify putting the accused on trial (see notes to section 204 as to when process is to be issued against the accused).

Once the investigating agency completes their function of investigating into the offences it is the Court in which the charge-sheet is filed which is to deal with all matters relating to the trial of the accused including matters falling within the scope of section 173(8) of the Code. If any of the parties including the CBI requires any further direction, they are free to approach the Court by way of an application [Narmada Bai v State of Gujarat, 2011 Cr LJ 2651 (2666) : 2011 (4) Scale 469 ].

Page 4 of 25 [s 173] Report of police officer on completion of investigation.— In a case notice was issued to the petitioner by the Magistrate but deliberately he did not appear in the Court to file protest petition against the final report. Therefore, the Magistrate accepted the final reports only on the ground of non-appearance of the petitioner and he had not filed any protest petition. But the Magistrate did not peruse and consider the evidence collected by the Investigating Officer. It was held that acceptance of final report only because the petitioner had failed to file protest petition was held to be improper and direction was issued to pass fresh order on final report [Anoop Kumar v State of UP, 2005 Cr LJ 2775 (All)].

Proceedings are initiated by a private complaint or a police report (section 190) and a magistrate can take cognizance on either. If on receipt of a police report, the Magistrate without taking cognizance which he might have done, makes over the case to a sub-magistrate for inquiry as though he was dealing with a complaint under section 200, it is not in accordance with law [Abdullah, 17 Cal WN 1004].

Since at the time of taking cognizance the Court has to exercise its judicial discretion, it necessarily follows that if in a given case, as the present one, the complainant, as the person aggrieved raises objection to the acceptance of a police report which recommends discharge of the accused and seeks to satisfy the court that a case for taking cognizance was made out, but the court overrules such objections, it is just and desirable that the reasons therefor be recorded. Necessity to give reasons which disclose proper appreciation of the issues before the Court needs no emphasis. Reasons introduce clarity and minimise chances of arbitrariness. That necessarily means that recording of reasons will not be necessary when the Court accepts such police report without any demur from the complainant. As the order of magistrate in the instant case does not contain any reason whatsoever even though it was passed after hearing the objections of the complainant it has got to be set aside [Rupan Deol Bajaj v KPS Gill, AIR 1996 SC 309 : 1955 AIR SCW 4100 : 1996 Cr LJ 381 (SC), See also Sita Ram v State of UP, 2006 Cr LJ 1433 (All)].

Although section 173 contemplates a report which leads to trial if approved by the Magistrate, a referred charge-sheet can be filed under it [Venkatasubba, AIR 1932 M 673]. Unless there is anything to the contrary in any enactment, the Code governs the investigation of offences connected with railway accidents [Shivbhat, AIR 1928 B 16].

When in present case after the completion of investigation, the Magistrate seized the case property on the police report, in such circumstances of the case High Court refused to interfere with that case property [Swamidhirendra Brahmachari v Shailendra Bhushan, 1995 Cr LJ 1810 (Del)].

The Magistrate is competent to direct further investigation even after taking cognizance of offence on the basis of police report under section 173(2) [Shaji Raghavan Pillai v State of Kerala, 2004 Cr LJ 187 (Ker) : 2003 (4) Rec Cr R 66 : 2003 (4) All CrLR 29 : 2003 (2) Ker LJ 127 : (2002) Cr LJ 1672 : 2002 (1) Ker LT 499 : 2002 Mad LJ (Cri) 470 : 2002 (3) Cur Cr R 171 (Ker) overruled].

The father of the deceased filed an application alleging that the incident was that of a pre-planned murder and not a case of accident. Meanwhile the police authorities entrusted investigation to DIG. The DIG recommended the registration of FIR under section 302 of the Indian Penal Code, 1860. The DGP constituted the special investigation team (SIT). The SIT submitted report to the effect that the incident was an accident and the allegations of murder are baseless. This report was brought before the Court but the Court directed not to file challan on the basis of report of the SIT and to investigate the matter on the basis of the report of DIG. The police authorities constituted second SIT and filed challan under section 173 of the Code. It was held that the constitution of SIT on the ground that DGP did not agree with the view of DIG was illegal. The challan filed on the basis of report of second SIT was held liable to be withdrawn. The Apex Court directed to register an offence under section 302 of the Indian Penal Code, 1860 and to investigate on this base. The applicant father of the deceased was directed to be paid Rs 2.5 lakh as compensation. [Zorawar Singh v Gurbax Singh Bains, AIR 2015 SC (Supp) 74 : 2015 (1) RCR (Criminal) 259].

Revision was filed against the order of further investigation. The court set aside the order by analysing facts as

Page 5 of 25 [s 173] Report of police officer on completion of investigation.— appellate court. The apex court held that the approach adopted by the revisional court was improper. [Chandra Babu v State, through Inspector of Police, AIR 2015 SC 3566 : 2015 (7) Scale 529 ]. [s 173.3] CBI Cases—Special Courts to try such cases.— As regards the submission that the CBI ought to have filed the charge-sheet before the same Court, the same has also been rightly rejected by the Trial Court. Since the Special Courts are dealing with CBI cases, the CBI could have filed the charge-sheet before the designated Court only and not before the Court of the learned Metropolitan Magistrate. It is fallacious for the petitioner to contend that two prosecutions are pending against him and the other accused in relation to the same offences. The learned Metropolitan Magistrate has consigned the case file to record. Since the investigation stood transferred to the CBI, and the FIR was re-registered/renumbered, the case is now being proceeded with in the court of the learned ASJ, ie in the Special Court. There is no question of the petitioner and other accused being tried by the court of the learned Metropolitan Magistrate in these circumstances. [Sajjan Kumar v CBI, 2011 Cr LJ 1225 (1246) (Del) : (2010) 171 DLT 120 ]. [s 173.4] Quashing.— FIR and investigation are liable to be quashed wherever, on the alleged facts, no offence in law is made. Thus if “Breeze Coke” is not an essential commodity then a prosecution under the Essential Commodities Act cannot be sustained [Basishtha Narayan Misra v State of WB, 1993 Cr LJ 10 (Cal) (Paritosh Kumar Mukherjee J)].

An FIR was lodged against a police officer for allegedly wrongful arrest of a person who was an ostensible offender in a cognizable case. Immediate steps were taken to release him on finding his non-complicity in the offence and there was no wrong intention or malice nor any attempt to implicate the accused wrongfully. High Court quashed the FIR and all further investigation [Ram Babu Singh v Addl Director General of Police, AntiCorruption, 1993 Cr LJ 1253 (All)].

When power to condone the delay in filing final report before Magistrate for sufficient cause is exercised in deserving cases then High Court cannot interfere to quash proceedings [Abubaker v State of Kerala, 2001 Cr LJ 404 : 2001 (2) Crimes 212 : 2000 (3) Ker LT 857 (Ker)].

Where petitioner was charged for offence under section 283, Indian Penal Code, 1860 and further investigation conducted by IO under section 173(8) of Code of Criminal Procedure, 1973 and subsequently supplementary charge-sheet was filed under section 304/A, Indian Penal Code, 1860 then order taking cognizance of both offences not liable to be quashed [Jai Ram v State of Rajasthan, 2001 Cr LJ 3915 (Raj)]. [s 173.5] Police Officer and FIR.— An information relating to the commission of a cognizable offence may be given by anyone, including station house officer, acquainted with the facts and circumstances of the case. If a cognizable offence is committed on the very face of a station house officer, there is no legal prohibition for him to act as the first informant and then himself take up the further investigation of the case [Rajeswar v State, 1992 Cr LJ 661 (Mad) (Janartham J)].

An officer investigating under section 5, Narcotics Act with powers of officer-in-charge of a police station is not entitled to exercise all powers under chapter XII, Code of Criminal Procedure, 1973 including the power to submit report under section 173. Hence section 25 Evidence Act does not apply to him [Raj Kumar Karwal v UOI, AIR 1991 SC 45 : 1991 Cr LJ 97 : (1990) 2 SCC 409 : 1990 (2) Crimes 435 (SC)]. [s 173.6] Police Officer registering the case when investigating the case himself.— Where the investigating officer who is the complainant himself registers the FIR, conducts investigation and gives evidence at trial investigation stands vitiated [State of Karnataka v Sheshadri Shetty, 2005 Cr LJ 377 (379) (Kant) : 2004 AIR Kant HCR 3449 : 2004 (2) All CrLR 353]. [s 173.7] Compromise between spouses.— Complaint was made by wife against her husband for misappropriation of her stridhana—

Subsequently the police stopped further investigation and dropped action on letter by the complainant wife that

Page 6 of 25 [s 173] Report of police officer on completion of investigation.— the matter had been amicably settled. It was held that final report had to be sent to the court in which FIR was pending [Laxmi Chand v State of TN, 1991 Cr LJ 1647 (Mad—DB)]. [s 173.8] Sanction.— If the investigating agency finds that there is lack of material connecting the public servant with the offence under section 19(1), Prevention of Corruption Act, 1988 does not require that before dropping the proceedings sanction of the competent authority must be obtained. Final report under section 173 does not require sanction [State (CBI) v Lachmandas Gupta, 1992 Cr LJ 3555 : 1992 (2) Crimes 790 : 1992 (2) Cur Cr R 2151 (Del) (per Ms Usha Mehra J) (Sanction is necessary only for filing the prosecution)]. [s 173.9] Delay.— Inordinate delay in submitting final report has been condemned by the Supreme Court—Such delay may lead to the grievance that investigation is carried on unfairly or with any ulterior motive [Kapur RP v State of Punjab, AIR 1960 SC 866 : 1960 Cr LJ 1239 : 1960 (3) SCR 388 ]. Where the contention was that the case proved against an accused was different from the case sought to be made out in the police charge-sheet, the Supreme Court observed that the charge-sheet is hardly a complete or accurate thesis of the prosecution case [Dalmia RK v Administration, AIR 1962 SC 1821 : 1962 (2) Cr LJ 805 : 1963 (1) SCR 253 ]. [s 173.10] Bombay police.— Notwithstanding anything contained in section173 the officer-in-charge of the police station shall forward his report under section 173 to the Commissioner of Police or such other officer as the Commissioner may direct in that behalf (See section 96, Bombay Police Act, 1951). [s 173.11] Sub-section (2)—Police report : [Charge-sheet or challan].— Police report means a report forwarded by a police officer to a Magistrate under sub-section (2) [See section 2(r)]. The report should be in the form prescribed by the State Government giving the particulars mentioned in clauses (a) to (g) of sub-section (2) [See Satyanarain Musadi v State of Bihar, AIR 1980 SC 506 : 1980 Cr LJ 227 : (1980) 3 SCC 152 (SC)]. Where in filling up the form, only the sections of the Penal Code are set out without details or circumstances of any description [Shivlingappa, AIR 1930 B 372], or when the nature of information is not set forth [Lee, 37 C 49] no cognizance could be taken upon it. In a non-cognizable case the filing of a charge-sheet in regard to a false complaint made [section 211, Indian Penal Code, 1860) is a proper method of bringing the case before the Court [Munuswami, 43 Cr LJ 775].

Once a Report under section 173(2) of the Code has been filed, it can only be cancelled, proceeded further or the case may be closed by the Court of competent jurisdiction and that too in accordance with law. Neither the Police nor a specialised investigating agency has any right to cancel the said Report [Vinay Tyaagi v Irshad Ali, 2013 Cr LJ 754 (SC).

It is desirable that the names of the witnesses examined by the IO are mentioned in the charge-sheet [Ganga S Jadhav v State of Maharashtra, 2008 Cr LJ (NOC) 1310 (Bom) : 2008 (2) Bom CR (Cri) 70 : 2008 All MR (Cri) 1277].

It would be appropriate if original photographs relied upon are filed along with the report under section 173(2), Code of Criminal Procedure, 1973 and can be taken back with permission of the Court to be produced as and when required. Alternatively, the xerox copies can be filed along with a certificate that they can be compared with the originals as and when so directed by the court [Bhupinder Singh v Jarnail Singh, 2006 Cr LJ 3621 (3627) (SC) : (2006) 3 SCC (Cri) 101 : 2006 (2) DMC 334 : 2006 (2) Hindu LR 593 ].

A police report containing all the particulars mentioned in section 173(2) is a valid police report irrespective of the fact that it does not contain some of the documents required to be filed under section 173(5) [State of HP v Guddu, 1983 Cr LJ 402 : 1982 Sim LC 348 : 1983 (1) Chand LR (Cri) 527 (HP)].

Where against the accused two charge sheets were filed on different dates it was held that it cannot be believed that there can be no conspiracy to commit another conspiracy against the accused person [Kondaplli Seetharamyya v Government of AP, 1995 Cr LJ 2169 (AP) : 1994 (2) Andh LT (Cr) 711 ].

Page 7 of 25 [s 173] Report of police officer on completion of investigation.—

On a request made by the accused, the case was transferred to Crime Branch CID (CBCID). The investigating officer immediately took up investigation and sent preliminary report opining that further investigation by senior police officers is required. Despite this opinion, the local inspector of police filed a charge-sheet. When once the case is transferred from his jurisdiction to CBCID, it would be ex facie illegal for the local police to file such charge-sheet [N Padmakar Reddy v Government of AP, 2006 Cr LJ 2160 (2162) (AP) : 2006 (1) Andh LD (Cr) 538].

For a report submitted under section 173(2), Code of Criminal Procedure, 1973 to be actionable, it is essential that the same should be submitted by the duly empowered/authorized officer. The untraced report submitted by Delhi Police was not by an authorized/empowered officer inasmuch as the investigation of the case on the relevant date stood transferred to the CBI. Moreover, the investigation was not completed as, even according to the untraced report submitted by Delhi Police, the Complainant Jagdish Kaur had not joined the investigation. The endeavour of Delhi Police to rush with the filing of the untraced report despite the transfer of the investigation to the CBI, prima facie, appears to be clandestine. [Sajjan Kumar v CBI, 2011 Cr LJ 1225 (1245) (Del) : 2010 (10) Scale 22 ].

A police officer has unfettered power to investigate a case. A Court should not normally interfere in its investigation unless and until it is totally misdirected and biased. In course of investigation the police may submit one police report under section 173(2) and may as well submit more than one supplemental police report/charge-sheet though submission of one police report under section 173, Code of Criminal Procedure, 1973 is always desirable and in tune with the scheme and object of the Criminal Procedure Code [Vijay Kant Thakur v State of Bihar, 2010 Cr LJ 4190 (4191) : (2011) 59 BLJR 390 (Pat)].

In cases of offence of illicit import of sand, the general power of police to arrest or to confiscate articles is not specifically ousted by Mines and Minerals (Development and Regulation) Act (67 of 1957). But the general power of the police is excluded to the extent of prosecution on basis of final report under section 173(2) of the Code. It can be launched only by a person authorised by Government under section 22 of the Act. [Prakash Nayak v District Collector, Kasaragod, AIR 2017 Ker 55 (FB) : 2016(4) KLJ 244 ]. [s 173.12] Police report—Its nature.— Code of Criminal Procedure, 1973 does not contain the terms “charge sheet” and “final report”. When the case comes under section 169 in some States it is called “final report” “deferred charge-sheet”, “summary”, “referred charge-sheet”, etc. and when the case comes under section 170 it is called charge-sheet or challan. Report under section 173(2) includes both the cases covered under sections 169 and 170 and they refer to the satisfaction of the officer-in-charge of the police station. With this report under section 173 the investigation by the police comes to its natural end [AK Roy v State of WB, AIR 1962 Cal 135 FB : 1962 (1) Cr LJ 285 : 66 Cal WN 697; see also Abhinandan Jha v Dinesh Mishra, AIR 1968 SC 117 : 1968 Cr LJ 97 (SC)]. Report in section 173 includes both the reports, i.e., final report under section 169 and a charge-sheet under section 170 [Krishnalal Gulati v State, 1976 Cr LJ 1825 (All)]. The formation of the opinion of the officer-in-charge of the police station whether on the material collected there is or there is not a case to place the accused for trial before a magistrate is the last of the several stages involved in the investigation by the police. The police have full control over the proceeding of this investigation, and neither the magistrate nor High Court has any power to interfere with such proceeding [Nazir Ahmed, AIR 1945 PC 18 : 71 IA 203; HN Rishbud v State of Delhi, AIR 1955 SC 196 : 1955 Cr LJ 526 (SC); AK Roy v State of WB, AIR 1962 Cal 135 FB : 1962 (1) Cr LJ 285 : 66 Cal WN 697; Parul Bala Sen Gupta v State, AIR 1957 Cal 379 : 1957 Cr LJ 713 : 61 Cal WN 361; Abhinandan, supra].

A police officer filing a charge-sheet does not make any statement on oath nor is bound by any express provision of law to state the truth but being a public servant he is obliged to act in good faith [Perumal v Janaki, 2014 Cr LJ 1454 ].

There is no provision of law which insists that the list of documents and that of witnesses accompanying the final report submitted by the prosecution before Court shall include those documents which in the opinion of the

Page 8 of 25 [s 173] Report of police officer on completion of investigation.— accused are relevant and those witnesses whom the accused claims are competent to give the true version of the occurrence. The plea that the witnesses included in the list filed along with the charge-sheet are partisan and interested and, hence the Court shall not proceed further on the basis of the final report as it would not be tenable at the pre-trial stage [Neela Lohitha Dasan Nadar (Dr) v State of Kerala, 2003 Cr LJ 3327 : 2003 (4) All CrLR 471 : 2003 (7) All Ind Cas 529 : 2003 (3) Cur Cr R 53 : 2003 (2) Rec Cr R 466].

The irregularity caused by a charge-sheet being forwarded to the Magistrate by the investigating officer instead of by officer-in-charge of a police station would not invalidate the cognizance, commitment and subsequent trial because (i) the irregularity is cured by section 156(2), and (ii) the accused were not materially prejudiced thereby [Tarabali, 82 Cal WN 229; Shreeyest Nandan Singh v State of Bihar, 1977 Cr LJ 1597 : 1977 BBCJ 640 (Pat); Baliram, A Cr R 129].

The mere fact that the final report is submitted by the additional sub-inspector of police will not indicate that the final report was not filed by an officer-in-charge of a police station. If at the time of sending the final report, the officer-in-charge of the police station was absent from the station house then the officer next in rank to him becomes the officer-in-charge of the police station [Surjit v State of Kerala, 2003 Cr LJ 983 : 2003 (3) All CrLR 526 : 2003 (1) Rec Cr R 34 (Ker)].

Section 173, Code of Criminal Procedure, 1973 in prima facie suggests complicity of the accused person in crime although named in FIR, but not charge-sheeted, still the magistrate can differ with conclusion and take cognizance of offence under section 190. The police is master of investigation but what treatment has to be given to the second report is in the domain of magistrate [Horil Sao v State of Bihar, 2002(1) East Cr C 209 (Pat) : 2002 (1) PLJR 318 ]. [s 173.13] Protest petition—Validity.— The Magistrate acted illegally in critically analyzing the evidence collected by the investigating officer and produced by the complainant and relied upon the negative evidence of strangers. If the Magistrate was not satisfied with the material in the case diary, he could have treated the protest petition as complaint. Unfortunately, despite medical evidence supporting the complainant, the final report had been accepted in this manner and protest petition had been rejected. [Sunil Kumar Agarwal v State of UP, 2011 Cr LJ 208 (210) : (2011) 2 ACR 1291 (All)]. [s 173.14] Counter case.— If a case and a counter-case based on conflicting versions given by rival persons are registered by the police, it is not incumbent to file separate charge-sheet in both the cases. The investigating officer is expected to file charge-sheet only of the case where offence appears to have been committed. It is open to the aggrieved party to prefer a private complaint for being tried as a counter-case [Augustine v State, AIR 1982 NOC 258 : 1982 Cr LJ 1557 FB : 1982 Ker LT 351 : 1981 Mad LJ (Cri) 403 (Ker); (Thami, 1965 Ker LT 697 overruled)]. [s 173.15] Protest petition— Locus standi.— The complainant can very well move the protest petition against the final report submitted by the Investigating Officer. It will hardly make any difference that he has filed the protest petition engaging private counsel. [Samiuddin v State of UP, 2011 Cr LJ 2819 (2822) (All)]. [s 173.16] Forensic report.— A challan submitted without report of the Central Forensic is not an incomplete challan, in terms of section 173(2).

The view that section 173(5) makes it obligatory upon the Investigating Officer to forward to the Magistrate along with the police report the opinion of the Central Forensic Science Laboratory is not correct. The convenience of the investigating officer referred to in section 173(7) pertaining to the furnishing of all or any of the documents to the accused whittle down the mandatory nature of sub-section (5). The petitioner, therefore, did not become entitled to the grant of bail under section 167(2), proviso(a)(i) [Taj Singh v State (Delhi Admn), 1988 Cr LJ 1634 : 1987 (3) Crimes 358 : (1987) 33 DLT 3 (Del)].

Page 9 of 25 [s 173] Report of police officer on completion of investigation.— Before accepting final report by the police, the Court should issue notice to informant, which is mandatory. On submission of final report by the police, the magistrate has jurisdiction to take cognizance of the case in spite of submission of protest petition [Srinibas Balabantaray v Additional Sessions Judge, Koraput, Jaypore, 1990 East Cr C 182 (Ori) : 1990 (I) OLR 179 ]. [s 173.17] Ordering police to submit charge-sheet.— On account of improper appreciation of evidence or inability to see the real point involved or from oblique motive the police officer may, without submitting a charge-sheet or challan, against the accused, recommend that no action need be taken. The magistrate should in all cases scrutinize the facts given in the final report carefully and read the police diary etc, and if it appears to him that there is scope for further investigation he may decline to accept the final report and direct the police to make further investigation under section 156(3) but he cannot impinge upon the jurisdiction of the police by compelling them to change their opinion and to submit a charge-sheet so as to accord with his opinion [Abhinandan Jha v Dinesh Mishra, AIR 1968 SC 117 : 1968 Cr LJ 97 (SC); (Nazir Ahmed, AIR 1945 PC 18 ; HN Rishbud and Inder Singh v State of Delhi, AIR 1955 SC 196 : 1955 Cr LJ 526 (SC); State of WB v SN Basak, AIR 1963 SC 447 : 1963 (1) Cr LJ 341 (SC); AK Roy v State of WB, AIR 1962 Cal 135 FB : 1962 (1) Cr LJ 285 : 66 Cal WN 697; State of Gujarat v Shah Lakhamshi Umarshi, AIR 1966 Guj 283 : 1966 Cr LJ 1420 : (1966) 7 Guj LR 130 followed.)]. Whether in such circumstances the Magistrate can take cognizance disagreeing with the opinion of the police (see notes under section 190). On the other hand, on receipt of a report under section 173 which is a charge-sheet it is also open to the magistrate to take a view contrary to the opinion of the police that the facts disclosed in the report do not make out any offence or he may take the view that there is no sufficient evidence to justify an accused being put on trial and on either of these grounds the magistrate will be perfectly justified in not taking cognizance of an offence [Abhinandan, supra].

Another circumstance may arise in connection with the final police report saying that no action need be taken or that the case is not true. In many such cases it is usual for the complainant to file a naraji, or protest petition, on which cognizance may be taken by the Magistrate as a complaint by examining the complainant [AK Roy v State of WB, AIR 1962 Cal 135 FB : 1962 (1) Cr LJ 285 : 66 Cal WN 697; Abhinandan Jha v Dinesh Mishra, AIR 1968 SC 117 : 1968 Cr LJ 97 (SC); Sushil Kumar Hazra v Banka Mahato, AIR 1957 Cal 393 : 1957 Cr LJ 720 : 61 Cal WN 624; Akshoy Kumar Dutta v Jogesh Chandra Nandy, AIR 1957 Cal 76 : 1956 Cr LJ 505 (2) : 60 Cal WN 345; Amar Premanand v State, AIR 1960 MP 12 : 1960 Cr LJ 79 : 1959 MPLJ 875 : 1959 Jab LJ 424 ].

When after negative final report by the police, they file a charge-sheet on the direction of the superintendent of police, the Magistrate can take cognizance [Raghunath Sharma v State, AIR 1963 Pat 268 : 1963 (2) 42 : 1963 BLJR 787 ]. Though the Court has no judicial control over investigation and the Magistrate acting judicially cannot direct the police to submit a charge-sheet after submission of final report, superintendent of police or District Magistrate may direct the investigating officer to submit a charge-sheet and cognizance may be taken on it. Such a direction is administrative [Ram Shankar, AIR 1956 A 525]. [s 173.18] Magisterial proceedings on police report or charge-sheet.— Until the receipt of the report under section 173 there is no intervention by the magistrate in his judicial capacity or as a Court and no occasion of the magistrate making a judicial order in connection with the police investigation arises [ML Sethi v RP Kapur, AIR 1967 SC 528 : 1967 Cr LJ 528 ]. On consideration of the police report whichever action he takes, he acts judicially and it is judicial proceeding as it has been held that the Magistrate who receives the report under section 173, will have to consider the said report and judicially take a decision, whether or not to take cognizance of the offence [Abhinandan Jha v Dinesh Mishra, AIR 1968 SC 117 : 1968 Cr LJ 97 (SC); Pedda Subba Reddy, E v State, AIR 1969 AP 281 : 1969 Cr LJ 1025 : 1969 (1) Andh LT 174 : 1968 Mad LJ (Cri) 430]. Where a magistrate discharges an accused acting on police report without further inquiry the order of the Magistrate is a judicial order [Boywalla, AIR 1941 B 294].

The Magistrate on receiving final report under section 169 has the option to ignore the report and take cognizance under section 190(1)(c) [India Carat Pvt Ltd v State of Karnataka, AIR 1989 SC 885 : 1989 Cr LJ 963 : (1989) 2 SCC 132 : 1989 (2) Crimes 483 (SC); Rakesh v State, AIR 2014 SC 3509 ]. [s 173.19] Incomplete report.—

Page 10 of 25 [s 173] Report of police officer on completion of investigation.— If the police report otherwise satisfies section 173(2), the Magistrate can take cognizance even if it is labelled as incomplete according to Delhi High Court [Taj Singh v State (Delhi Admn), 1988 Cr LJ 1634 : 1987 (3) Crimes 358 : (1987) 33 DLT 3 (Del—DB)].

There is no provision in Code of Criminal Procedure, 1973 enabling the Magistrate to return an incomplete charge-sheet. If the police report is incomplete he can defer the taking cognizance of the offence till deficiency in police report is removed [Vikaram Malhotra v CBI, 2004 (2) Crimes 442 (J&K)].

It is not possible for the High Court to interfere with the summoning order passed by the Special Judge, CBI on the basis that an “incomplete challan” has been filed by the CBI. Where no basis or justification has been put forth to enable the High Court to return the finding that the challan is an “incomplete challan”, merely because the investigating agency, in the penultimate paragraph of the challan has reserved its right to submit a report with respect to further investigation in due course, cannot enable the High Court to hold that an incomplete charge-sheet has been filed by the investigating agency. In case the documents which were not relied upon in the challan subsequently become relevant on account of further evidence garnered/ received by the investigating agency, it cannot be said that the said documents cannot form the basis of a supplementary or further challan to be filed by the respondent [Java Singh v CBI, 2009 Cr LJ 3336 (3340, 3342) (Del) : 2009 (3) DLT (Cri) 464]. [s 173.20] Bombay taken contrary view.— An incomplete charge-sheet cannot be treated as a “police report” under section 173(2) so as to entitle the Magistrate to take cognizance of the offence. A police report as defined in section 2(r) can only be filed “as soon as the investigation is completed”. If it is not complete, no such report can be filed. When no report is forwarded as required by the Code, the Magistrate cannot take the cognizance. Thus, unless all these steps are crossed, sub-section (8) cannot be pressed in aid for collecting further evidence. The Magistrate cannot take cognizance on the admittedly “incomplete charge-sheet” forwarded by the police. If the Magistrate is allowed to take cognizance on the basis of incomplete charge-sheet, then the provisions of section 167(2) or to say section 468 of the Code of Criminal Procedure, 1973 can always be circumvented [Sharad Chandra Vinayak Dongra v State of Maharashtra, (1991) Cr LJ 3329 : 1991 Mah LJ 656 : 1991 (2) All CrLR 480 (per SW Puranet J)]. [s 173.21] Nature of order.— The orders passed by a Magistrate upon a police report as to taking cognizance of an offence or not appear to be judicial orders liable to be quashed by the High Court under section 482 if cognizance has been illegally taken and open to prosecution, if aggrieved by the orders of discharge, to go in revision under section 398. As neither section 300 applies to such a discharge nor section362 operates as a bar, a Magistrate may however also review his own previous order of discharge in a proper case upon fresh materials placed before him subsequently by the police. In this connection, following cases may be seen [Uma Singh, 12 P 234 : AIR 1933 P 242; Brahm Dev, 39 Cr LJ 646 : AIR 1938 L 469; Sardara v Muhammad Niwaz, AIR 1950 Lah 40 : 1950 Cr LJ 434 ; Mahabir Prasad Agarwala v State, AIR 1958 Ori 11 : 1958 Cr LJ 63 : 23 Cut LT 395 : ILR (1957) Cut 551 ; see however Mokamiji, 11 Cal WN 832; Carrick, AIR 1941 P 395]. After accepting the final police report as false, the Magistrate can on a protest petition filed by the informant revise his opinion and call for chargesheet, or issue summons treating it as a complaint [Hrushikesh v Krushna Chandra Ghadei, AIR 1958 Ori 104 : 1958 Cr LJ 655 : 24 Cut LT 32 : ILR (1958) Cut 25 ]. On the final police report that there was no evidence the Magistrate recorded “Enter true, section 302, Indian Penal Code, 1860” and discharged the accused; but some time after on reading the police diary he changed his mind and summoned the accused under section 304, Indian Penal Code, 1860—Held that by his former order the Magistrate had taken cognizance of the offence and it was competent for him to summon the accused without a fresh complaint or a fresh police report [Jiban Krishna Samanta v State, ILR 1950 (2) Cal 66 : AIR 1955 NUC 665 (Cal)]. A Magistrate after accepting the final report holding the case as untrue cannot take cognizance on the basis of protest petition in respect of the same facts received subsequently [Bhuneshwar Prasad Sinha v State of Bihar, 1981 Cr LJ 795 : 1981 BLJR 369 : 1981 BLJ 336 (Pat); (Abhinandan Jha v Dinesh Mishra, AIR 1968 SC 117 : 1968 Cr LJ 97 relied on); Uma Shankar Singh v State of Bihar, 1981 Cr LJ (NOC) 118 : 1981 BLJR 337 : 1981 BLJ 266 (Pat); (Tula Ram v Kishore Singh, AIR 1977 SC 2401 : 1978 Cr LJ 8 : (1977) 4 SCC 459 (SC); Bindeshwari Prasad Singh v Kall Singh, AIR 1977 SC 2432 : 1978 Cr LJ 187 : (1977) 1 SCC 57 (SC) followed)]. [s 173.22] Sub-section (2)(ii).—

Page 11 of 25 [s 173] Report of police officer on completion of investigation.— When the police officer fails to issue an intimation as mentioned in sub-section (2)(ii), Form No 95 of Criminal Rules of Practice of T-C does limit the competency to lodge complaint after expiry of 14 days contemplated under the Form [SE Asaria Pazhani Swami, 1981 Cr LJ (NOC) 74 : 1981 Ker LT 93 (Ker)].

It has been provided under section 173(2)(ii) that wherever the Magistrate finds any defect in First Information report, in order to correct that he can send notice to the informant and such type of notice can only be received by the said informant. Therefore, in present case, where notice was not served to the informant but was served on his successor it was defective service [Amar Singh Tyagi v Indra Pal Gautam, 1995 Cr LJ 1639 (All)].

Where the Magistrate to whom a report is forwarded under section 173(2) decides not to take cognizance or take the view that there is not sufficient ground for proceeding against some of the persons mentioned in the FIR, the Magistrate must give notice to the informant and provide him with an opportunity of hearing at the time of consideration of the report. But notice to the injured person is not necessary. But even he can appear and make submissions before the magistrate [Bhagwat Singh v Commissioner of Police, AIR 1985 SC 1285 : (1985) Cr LJ 1521 : (1985) 2 SCC 537 : 1985 (1) Crimes 994 ; Chittaranjan Mirdha v Dulal Ghosh, 2009 Cr LJ 3430 (3432) (SC)].

In the matter of CBI investigation in Taj Heritage case, there was difference of opinion in administrative hierarchy in CBI between team of investigating officers and law officers on the one hand and Director of Prosecution on the other hand on the question as to whether there existed adequate evidence for judicial scrutiny. Director CBI was not right in referring matter for opinion to Attorney General of India, but entire material collected by CBI alongwith report of SP was to be placed before concerned Court [MC Mehta v UOI, 2007 (1) Crimes 375 (SC)]. [s 173.23] Event of bail.— The framers of the Code have vested powers in the Magistrate under section 190(1)(b) to take cognizance of an offence upon such a police Report. If the Magistrate can take cognizance of an offence on the basis of Police Report submitted under section 173(2) of the Code, Police Report cannot be termed so irrelevant while considering application for bail under sub-section (8) of section 20 of TADA Act, as to whether there are reasonable grounds for believing that the accused in question is not guilty of such offence and as such he should be directed to be released. Thus, the Designated Court should have perused the Charge-sheet/police report submitted after the conclusion of the investigation before passing the impugned order and having failed to do the same; the order directing release of the accused on bail is liable to be set aside [UOI v Mohd Sadiq Rather, AIR 1993 SC 379 : (1993) 1 SCC 8 : (1993) Cr LJ 72 SC : 1992 (3) Crimes 1072 (MH Kamia CJ, NM Kasliwal and NP Singh JJ)]. [s 173.24] Production of the accused.— Refusal to accept charge-sheet without production of the accused is illegal [Deendayal Kishanchand v State of Gujarat, 1983 Cr LJ 1583 : (1983) 24 Guj LR 324 : 1983 CrLR (Guj) 179 (Guj)]. [s 173.25] Production of additional documents.— Normally the IO is required to produce all the relevant documents at the time of submitting charge-sheet. But as there is no prohibition the additional documents can be produced subsequently [CBI v RS Rai, 2002 Cr LJ 2029 (2031) : AIR 2002 SC 1644 : 2002 (2) Crimes 159 : (2002) 5 SCC 82 ].

Once a charge-sheet is filed for cognizable offence by the investigating officer contains all particulars mentioned in sub-section (2) of section 173, Code of Criminal Procedure, 1973 is a valid report irrespective of fact that it does not contain some of the documents as required to be filed under section 173(5). If such reports are not appended to police report that can be produced by supplying copies of the same to the accused at a later stage with the permission of the Court [Venkatarayanakote Krishnappa Raghavendra v State of AP, 2009 Cr LJ 3168 (3173, 3174) (AP)]. [s 173.26] Sub-section (3)—Right of accused to get copies of documents.— Where the accused has been deprived of the right of effective cross-examination of the prosecution witnesses for want of copy of the statement recorded under section 161, Code of Criminal Procedure, 1973. It is

Page 12 of 25 [s 173] Report of police officer on completion of investigation.— impossible to say that there has not been failure of justice. However, the infringement is curable under section 465, Code of Criminal Procedure, 1973, if it has not occasioned any failure of justice [Padamati Venkata Sundara Rao v State of AP, 2006 Cr LJ 2168 (AP)]. [s 173.27] Sub-section (4).— The sub-section relates exclusively to the case in section 169 where the accused has been released on his bond on the ground that evidence is deficient. As to courses open to the Magistrate on receipt of the report, see [Kamalapati Trivedi v State of WB, AIR 1979 SC 777 , 795 : 1979 Cr LJ 679 : (1979) 2 SCC 91 (SC)]. The words “or otherwise as he thinks fit” empower the magistrate to take cognizance of a case against the person who in his opinion was wrongly released [Mohd Niwaz v The Crown, (1947) 48 Cr LJ 774 : 231 Ind Cas 354 (Lah)]. His powers in this respect are quite as wide as under section 159 [Hakim Ali, 7 Cr LJ 414]. [s 173.28] Sub-section (5)—[Copies of documents on which the prosecution relies].— This sub-section which has been substituted for old sub-section (4) says that the police shall forward to the Magistrate along with the report documents specified in it. In cases instituted on police report it has been made obligatory on the Magistrate under section 207 to furnish to the accused all documents specified in that section which includes document specified in sub-section (5) and a duty has been cast on the Magistrate under section 238 to see that they are so furnished [see sections 162, 173(5) and (6), 207, 208].

This provision makes it incumbent on the Investigating agency toforward/transmit to the concerned Court all documents/statements etc. on which the prosecution proposes to rely in the course of the trial. Section 173(5), however, is subject to the provisions of section 173(6), which confers a power on the investigating officer to request the concerned Court to exclude any part of the statement or documents forwarded under section 173(5) from the copies to be granted to the accused. The Court having jurisdiction to deal with the matter, on receipt of the report and the accompanying documents under section 173, is next required to decide as to whether cognizance of the offence alleged is to be taken in which event summons for the appearance of the accused before the Court is to be issued. On such appearance, under section 207, Code of Criminal Procedure, 1973, the concerned Court is required to furnish to the accused copies of the following documents:

(i)

The police report;

(ii) The first information report recorded under section 154; (iii) The statements recorded under sub-section (3) of section 161 of all persons whom the prosecution proposes to examine as its witnesses, excluding therefrom any part in regard to which a request for such exclusion has been made by the police officer under sub-section (6) of section 173; (iv) The confessions and statements, if any, recorded under section 164; (v) Any other document or relevant extract thereof forwarded to the Magistrate with the police report under sub-section (5) of section 173 [VK Sasikala v State, AIR 2013 SC 613 : 2013 Cr LJ 177 (SC) : (2012) 9 SCC 771 ].

The words “and of all other documents or relevant extracts thereof, on which the prosecution proposes to rely” may include documents or papers too numerous to mention, e.g. reports of post-mortem examination, or chemical examiner, or hand-writing or fingerprint expert, copy of sanction, correspondence, registers, account books, bills etc. The incorporation of sub-section (5) was necessitated because section 207 casts a duty on the magistrate to make available to the accused free of cost copies of “police report” and documents and statements specified in sub-section (5). If they are not appended to “police report” the result would be that at later stage if they are sought to be produced, then besides copies of them being made available to the accused it would be purely in the magistrate’s discretion to allow them to be produced and the prosecution cannot, as a matter of right, have them placed on the record [State of Haryana v Mehal Singh, AIR 1978 P&H 341 FB : (1978) 80 Punj LR 480 ].

Page 13 of 25 [s 173] Report of police officer on completion of investigation.— Documents submitted in the Court along with the report under section 173, though unexhibited or unmarked, ought to be disclosed to the accused if demanded. The doctrine of free and fair trial so demands [VK Sasikala v State, AIR 2013 SC 613 : 2013 Cr LJ 177 (SC) : (2012) 9 SCC 771 ]. [s 173.29] Sub-section (5)(b).— Provisions of section 173(5) contemplate and make it obligatory upon the Investigating Officer where the provisions of section 170 apply to forward to the magistrate along with his report, all documents or relevant extracts thereof on which the prosecution proposes to rely other than those already sent to thmagistrate during investigation in terms of section 170(2) of the Code [Sidhartha Vashisht v State (NCT of Delhi), AIR 2010 SC 2352 : (2010) 6 SCC 1 ].

Only statements recorded under section 161 of those persons whom the prosecution proposes to examine as witnesses are required to be sent [Kottam Raju Vikram Rao v State of Gujarat, (1977) 18 GLR 107) ]. [s 173.30] Sub-section (6) [Exclusion from copy].— This sub-section has been substituted for old sub-section (5) with modifications. If the police officer is of opinion that any part of any statement referred to in sub-section (5) is irrelevant or not essential to the accused in the interests of justice or inexpedient to disclose in the public interest [See Nga U, AIR 1935 R 98; Bansidhar, AIR 1931 A 262; Nekhram, 32 Cr LJ 503, e.g., any information in the statement which falls within section 125, Evidence Act] he shall append a note with reasons requesting, the magistrate to exclude that part from the copies to be granted to the accused.

In this case the petitioner sought entrustment of investigation of offences alleged to have been committed by her husband to outside agency, on the ground that the police had not taken up any effective investigation and had not registered case for all offences. Held, the petitioner could take recourse to section 173(6) or section 20 and the writ petition was not maintainable. The order of Single Judge of the High Court directing investigation of offence by outside agency with addition of certain offences was liable to be set aside [VC Thomas v Achamma Thomas, 2010 Cr LJ (NOC) 402 (Ker)]. [s 173.31] Sub-section (7).— Non-supply of copies of challan at the trial [Taj Singh v State (Delhi Admn), (1988) Cr LJ 1634 : 1987 (3) Crimes 358 : (1987) 33 DLT 3 Del DB]. [s 173.32] Sub-section (8).—Further investigation and supplementary report.— It is a statutory right and duty of the police to further investigate as often as necessary when fresh information came to light after filing of the charge-sheet. These statutory rights and duties of the police cannot be circumscribed by any power of superintendence nor any sanction is required from a Magistrate to empower the police to investigate into a cognizable offence. However, it would be desirable to keep the Court informed about further investigation, more particularly where the charge has been framed [Sunil Tandon v State of Maharashtra, 2010 Cr LJ 4263 (4268) (Bom)].

Further investigation conducted under the orders of the Court, including that of the Magistrate or by the police of its own accord and, for valid reasons, would lead to the filing of a supplementary report. Such supplementary report shall be dealt with as part of the primary report. This is clear from the fact that the provisions of sections 173(3) to 173(6) would be applicable to such reports in terms of section 173(8) of the Code. Both these reports have to be read conjointly and it is the cumulative effect of the reports and the documents annexed thereto to which the Court would be expected to apply its mind to determine whether there exist grounds to presume that the accused has committed the offence. If the answer is in the negative, on the basis of these reports, the Court shall discharge the accused in compliance with the provisions of section 227 of the Code [Vinay Tyaagi v Irshad Ali, 2013 Cr LJ 754 (SC)].

Magistrate under section 173(8) of the Code cannot order for re-investigation of the case, rather he can only order for further investigation of the case. The Court, in the instant case, modified the order passed by the Magistrate and ordered further investigation of the case in view of the provisions of section 173(8) of the Code. [Samiuddin v State of UP, 2011 Cr LJ 2819 (2824) (All)].

Page 14 of 25 [s 173] Report of police officer on completion of investigation.—

A report under section 173 is normally the end of the investigation. Sometimes, however, the police officer after submitting the report comes upon evidence bearing the guilt or innocence of the accused. In the interests of justice, the police officer should be able to collect that evidence and send it to the Magistrate. Sometimes, the Courts have taken the narrow view that once a final report has been sent, the police cannot touch the case again and re-open the investigation. This view places a hindrance in the way of the investigating agency, which can be very unfair to the prosecution, and, for that matter, even to the accused. The addition of sub-section (8) has clarified that sending of report under sub-section (2) does not preclude further investigation and sending supplementary report or reports. Notwithstanding that a Magistrate has taken cognizance of the offence upon a police report submitted under sub-section (2) the police can carry on repeated investigations on discovery of fresh facts [Ramlal Narang v State of Delhi (Admn), AIR 1979 SC 1791 : 1979 Cr LJ 1346 : (1979) 2 SCC 322 ]. It is open to the investigating agency to file supplementary charge-sheet without there being any additional investigation or fresh materials on the basis of the materials which had already been collected in the course of the previous investigation [Madhusudan Mukherjee v State of Bihar, 2009 Cr LJ 4691 (4697) (Pat)].

Notwithstanding that a Magistrate has taken cognizance of the offence upon a police report submitted under section 173, further investigation is not barred and the police can proceed if they receive some important information with regard to the case. However, investigation agency is expected to inform the Court concerned for further investigation so as to express their regard and respect for it [Mool Chand v Station House Officer, Police Station Renewal, Jaipur, 2009 Cr LJ 3158 (3160, 3161) (Raj)].

Report under section 173(8) should be as far as possible in adherence to form prescribed by the State Government. However, non-adherence will not vitiate the report [Anil Somdatta Nagpal v State of Maharashtra, 2006 Cr LJ 1307 (Bom); Rameshwar Singh v State of Bihar, 2006 Cr LJ 4427 (Pat) : 2006 (4) Pat LJR 338 ]. If there is necessity for further investigation, the same can certainly be done as prescribed by law. The mere fact that there may be further delay in concluding the trial should not stand on the way of further investigation if that would help the Court in arriving at the truth and do real and substantial as well as effective justice [Hasanbhai Valibhai Qureshi v State of Gujarat, AIR 2004 SC 2078 : 2004 Cr LJ 2018 : 2004 (5) SCC 347 : 2004 (2) Crimes 145 (SC)].

The Apex Court held that the power of police under section 173(8) is unrestricted. The court further held that it is needless to say that the magistrate has no power to interfere but it would be appropriate on part of investigating officer to inform the court. [Dharam Pal v State of Haryana, AIR 2016 SC 618 : 2016 (6) SCJ 347 ].

There is no bar against conducting further investigation under section 173(8), Code of Criminal Procedure, 1973 after the final report submitted under section 173(2) has been accepted. Prior to carrying out further investigation under section 173(8) it is not necessary for the Magistrate to review or re-call the order accepting the final report [Essar Oil Ltd v CBI, 2010 Cr LJ 224 (245) (Guj).]

From the plain reading of section 173 it is evident that even after completion of investigation under sub-section (2) of section 173, the police has right to further investigate under sub-section (8) but not fresh investigation or re-investigation [Ramachandran v R Udaya Kumar, 2008 Cr LJ 4309 (4310) (SC) : AIR 2008 SC 3102 : (2008) 5 SCC 413 : (2008) 2 SCC (Cri) 631 ].

Order directing re-investigation or investigation where the statement of witness was recorded by the investigating officer was held proper [Devendra v State of UP, 2008 Cr LJ (NOC) 1275 : 2008 (5) All LJ 6 : 2008 (62) All Cri C 143].

Where a proceeding is pending before a Court, it is desirable that the police should inform the court and seek formal permission to make further investigation [Raghunath Singh v State of Bihar, 1990 (1) Crimes 310 (Pat)]. The investigating agency is not precluded from making further investigation in respect of an offence after

Page 15 of 25 [s 173] Report of police officer on completion of investigation.— forwarding the report under section 173(2) [Koneru Vara Prasada Rao v State of AP, 2007 Cr LJ 2898 (2899) : 2007 (2) Andh LT (Cri) 498 ].

Section 173(8), Code of Criminal Procedure, 1973 permits further investigation even after report is filed under section 173(2) by the police either positive report or negative report, as the case may be [Surendra Nath v State of Rajasthan, 2006 Cr LJ 2716 (2719) (Raj) : 2006 (2) Cur CrR 468 : 2006 (2) Crimes 61 ].

On an application of the IO, the Court may return the file for further investigation even without hearing the accused [Dalpat Singh v State of Rajasthan, 2007 Cr LJ (NOC) 366 (Raj)].

Where the decision of Supreme Court setting aside the judgment of CEGAT which formed the basis of the final report as well as the basis of the order of Special Judge while accepting the report, would form fresh material so as to call for further investigation in the case [Essar Oil Ltd v CBI, 2010 Cr LJ 224 (247) (Guj)].

Further investigation is merely a continuation of the earlier investigation, hence it cannot be said that the accused are being subjected to investigation twice over. Moreover investigation cannot be put at bar with prosecution and punishment so as to fall within the ambit of clause (2) of Article 20 of the Constitution. The principle of double jeopardy would, therefore, not be applicable to further investigation [Essar Oil Ltd v CBI, 2010 Cr LJ 224 (245) (Guj)].

There is nothing in the Code of Criminal Procedure, 1973 to suggest that the Court is obliged to hear the accused while considering an application for further investigation under section 173(8), Code of Criminal Procedure, 1973 [Essar Oil Ltd v CBI, 2010 Cr LJ 224 (247) (Guj)].

After coming of some new facts in the light relating to the offence, the Investigating officer sought permission for investigation, which is in continuation of the earlier investigation and the report submitted shall be an additional report. Order for further investigation were held not improper [Ikram Hussain v State of UP, 2011 Cr LJ 1780 (1781, 1783) : (2011) 3 ADJ 353 (All)].

Initially charge sheet was filed for offences under sections 147, 148, 149, 324, 323, 504 and 506 of Indian Penal Code, 1860. Subsequently on receiving x-ray report indicating that three metallic shadows were imbeded inside the body and offence under section 307 of Indian Penal Code, 1860 was added. The word “evidence” used in section 173(8) has been used in a generic sense of additional material regarding which charge sheet has already been laid in the court. Supplementary charge sheet would not initiate proceedings or suffer from illegality [Suresh v State of UP, 2007 (1) Crimes 175 (SM) (All)].

It is not necessary that the proceedings subsequent to cognizance should be kept in abeyance till further investigation reports are received nor it is so warranted under any of the provisions of Code of Criminal Procedure, 1973. The purpose of the investigation is to collect such further material and to submit the same before the Court concerned [Chandan Kosta v State of UP, 2009 Cr LJ 4315 (4317) (All) : 2009 (5) All LJ 723].

Order for further investigation was passed by the magistrate. The apex court set aside the order passed by the Magistrate observing:—His order that several kinds of issues were not discussed and beyond from knots of doubts is vague in nature. It has not been pointed out that in what respect the investigation has not been carried out. What are hidden truths required to be unearthed had also not been pointed out. The Magistrate did not consider the fact that the investigation had been carried out by different agencies and by responsible police officers, it has not been found that the investigating officer was in any way biased towards the complainant [Kishan Lal v Dharmendra Bafna, 2009 Cr LJ 3271 (SC) : (2009) 7 SCC 685 : 2009 (3) Crimes 356 : (2009) 3 SCC (Cri) 611 : AIR 2009 SC 2932 ].

Page 16 of 25 [s 173] Report of police officer on completion of investigation.— Where there are serious lapses and lacuna in the investigation conducted before filing charge-sheet, the court may issue directions to the State Government for further investigation and submission of report [Mustakali Mohammed bhai Shaikh v State of Gujarat, 2007 Cr LJ (NOC) 493 (Guj)].

Filing of charge-sheet and cognizance of offence by the magistrate does not bar further investigation [Dinesh Dalmia v CBI, (2007) 8 SCC 770 : 2008 (1) SCC (Cri) 36 : 2007 (4) Crimes 33 : 2008 Cri LJ 337 : AIR 2008 SC 78 ].

In this case, the petitioner contended that under the garb of further investigation, the police are likely to reinvestigate the case. The charge-sheet had already been filed. In any case reinvestigation was not permissible in law. In the present case the prosecution had not taken any steps for seeking cancellation of bail or police custody of the accused so as to prima facie hold that they intend to re-investigate the case. The further investigation, which investigating agency in the instant case was carrying out was nothing but continuation of the earlier investigation and not re-investigation. [Sunil Tandon v State of Maharashtra, 2010 Cr LJ 4263 (4268) (Bom)].

The Magistrate can ignore the conclusion arrived at by the IO and independently apply his mind to the facts emerging from investigation or further investigation, as the case may be, and take cognizance of the offence, if he thinks fit under section 190(1) (b) of the Code. It is redundant on the part of the Magistrate to take cognizance again on the basis of charge sheet submitted afresh pursuant to further investigation. [Rajab Ali v State of WB, 2010 Cr LJ 2984 (2989) (Cal)].

It is not pre-condition to obtain permission from court for further investigation. [Anil Baranwal v State of UP, 2010 Cr LJ NOC 832 (All) : 2009 (5) ALJ 735 ].

Words, “there is no bar against conducting further investigation” under section 173(8), Code of Criminal Procedure, 1973 after the final report submitted under section 173(2) has been accepted. Prior to carrying out further investigation under section 173(8), Code of Criminal Procedure, 1973 it is not necessary that the order accepting the final report should be reviewed, recalled or quashed. Further investigation in merely a continuation of the earlier investigation hence it cannot be said that the accused are being subjected to investigation twice over. Moreover investigation cannot be put at par with prosecution and punishment so as to fail within the ambit of clause (2) of Article 20 of the Constitution. The principle of double jeopardy would, therefore, not be applicable to further investigation. There is nothing in the Code of Criminal Procedure, 1973 to suggest that the Court is obliged to hear the accused while considering an application for further investigation under section 173(8) of the Act [Essar Oil Ltd v CBI, 2010 Cr LJ 224 (247) (Guj)].

Once a charge-sheet is filed under section 173(2), Code of Criminal Procedure, 1973 and either charge is framed or the accused are discharged, the Magistrate may, on the basis of a protest petition, take cognizance of the offence complained of or on the application made by the Investigating Authorities permit further investigation under section 173(8). The Magistrate cannot suo motu direct a further investigation under section 173(8), Code of Criminal Procedure, 1973 or direct a re-investigation into a case on account of the bar of section 167(2) of the Code. Not only was the Magistrate wrong in directing a re-investigation on the application made by the de facto complainant, but he also exceeded his jurisdiction in entertaining the said application filed by the de facto complainant. Since no application had been made by the Investigating Authorities for conducting further investigation as permitted under section 173(8), Code of Criminal Procedure, 1973, the other course of action open to the Magistrate as indicated by the High Court was to take recourse to the provisions of section 319 of the Code at the stage of trial [Reeta Nag v State of WB, 2010 Cr LJ 2245 (2249) (SC) : (2009) 9 SCC 129 ].

The investigating agency or the Court subordinate to the High Court have to exercise powers within the four corners of Code of Criminal Procedure, 1973. Thus, investigating agency may undertake further investigation and the Court may direct further investigation where charge-sheet has been filed. But such further investigation

Page 17 of 25 [s 173] Report of police officer on completion of investigation.— will not mean fresh investigation or re-investigation. These limitations under section 173(8) do not apply to High Court under section 482, Code of Criminal Procedure, 1973 for securing the ends of justice. Thus, where senior functionaries of the state police and political leaders were involved, it was held by the Supreme Court that the High Court was justified in directing investigation by CBI [State of Punjab v CBI, AIR 2011 SC 2962 : (2011) 9 SCC 182 : (2011) 3 SCC (Cri) 666 ].

Investigation cannot be directed by magistrate at post cognizance stage. Though investigating agency concerned has been invested with power to undertake further investigation desirably after informing court, thereof, before which it had submitted its report and obtaining its approval, no such power is available thereafter to magistrate after cognizance has been taken on basis of the earlier report, the process has been issued and accused has entered appearance in response thereto. At that stage, magistrate neither suo motu nor on an application filed by complainant/informant, can direct further investigation. [Amrutbhai Shambhubhai Patel v Sumanbhai Kantibhai Patel, AIR 2017 SC 774 : 2017 (4) SCJ 298 ].

The High Court directed the trial court to issue direction to investigating officer for further investigation. The earlier application was rejected by the trial court. The evidence on record established that the charge-sheet was filed after thorough investigation, recording of statements of 76 witnesses and seizing of four Articles. The orders of High Court were set aside. [Athul Rao v State of Karnataka, AIR 2017 SC 4021 : 2017 (9) SCJ 207 ]. [s 173.33] Word “evidence” used in Section 173(8).— The word “evidence” in sub-section (8) of section 173, Code of Criminal Procedure, 1973 has been used in generic sense of additional material into the crime regarding which charge-sheet has already been filed in the court and not as evidence recorded before the court. [Suresh v State of UP, 2006 Cr LJ 4814 (4815) (All) : 2006 (4) All LJ 378 : 2006 (2) All CrC 652].

In Om Prakash Narang v State (Delhi Administration), AIR 1979 SC 1791 : 1979 Cr LJ 1346 : (1979) 2 SCC 323 , it has been observed by the Supreme Court that when defective investigation comes to light during course of trial, it may be cured by further investigation of the circumstances so permitted. It would ordinarily be desirable that police should inform the Court and seek formal permission to make further investigation when fresh facts come to light instead of being silent over the matter keeping in view only the need for an early trial since as an effective trial for real and actual offences formed during course of proper investigation is as much relevant, desirable and necessary as an expeditious disposal of the matter by the Courts. Supplementary charge-sheet cannot be submitted without further investigation and obtaining further evidence [Reshamlal Yadav v State of Bihar, 1981 Cr LJ 976 : 1981 Pat LJR 176 : 1981 BLJR 647 (Pat)]. Contra: If the materials discovered on investigation are misunderstood by police officer, on receipt of proper light from his superior he can file an additional charge-sheet without further investigation and collection of new materials [Deepak Dwarkadas Patel v State of Gujarat, 1980 Cr LJ 29 : (1980) 21 Guj LR 135 : 1979 CrLR 480 (Guj)]. Sub-section (8) does not empower the magistrate to order further investigation by the police for the purpose of filling up lacuna, if any, in the prosecution case [Jitendra Nath Ghosh v State, 1976 Cr LJ 1296 (Cal); Harichand v State, 1977 Cr LJ (NOC) 262 : ILR (1977) 2 Del 367 (Del)]. An accused discharged on final report under section 173(2) can be prosecuted on further report under section 173(8) [Lalta Prasad v State of UP, 1978 Cr LJ (NOC) 269 : 1978 All Cr C 334 (All)]. The power of the Magistrate under section 156(3) to direct further investigation does not in any way affect the power of the investigating officer to further investigate under sub-section (8) [State of Bihar v JAC Saldana, AIR 1980 SC 326 : 1980 Cr LJ 98 : (1980) 1 SCC 554 (SC)]. An officer superior in rank to an officer incharge of a police station in view of section 36 can on his own exercise the power of further investigation under sub-section (8) and it is immaterial and irrelevant that he does it at the direction of the Government under section 3 of the Police Act, 1861 [JAC Saldana, supra].

Cognizance of magistrate does not bar further investigation. In the matter of such investigation, notice to the accused against whom supplementary charge-sheet is going to be filed, is not necessary since at the stage of investigation, rules of natural justice do not apply. Further, section 319, Code of Criminal Procedure, 1973 gives ample powers to any Court to take cognizance and add any person not being an accused before it and try him along with the other accused in these circumstances, therefore, if the prosecution can at any stage produce evidence which satisfies the Court that the other accused those who have not been arrayed as accused against whom proceedings have been quashed, have also committed the offence, the Court can take cognizance against them and try them along with the other accused. But, this is really an extra-ordinary power which is

Page 18 of 25 [s 173] Report of police officer on completion of investigation.— conferred on the Court and should be used very sparingly and only if compelling reasons exist for taking cognizance against the other person against whom action has not been taken [Ladu Devi v State of Rajasthan, 2005 Cr LJ 543 (Raj)].

If fresh materials come to light, the police can re-open the case. Order of the Court taking cognizance on subsequent police report is competent and cannot be interfered with in revision [Shiv Narain Choudhary v State of Bihar, (1984) Cr LJ (NOC) 196 : 1984 BLJ 383 (Pat)].

Officer-in-charge of police station submitted final report under section 173(2), stating “final report, true, no clue”. However, thereafter the superior officer, on receiving certain clues, applied for further investigation, which was granted. Procedure was held to be legal [Ram Autar Jalan v State of Bihar, (1986) Cr LJ 51 : 1985 Pat LJR 1142 : 1985 BLJR 650 : 1986 East Cr C 152 (Pat)].

Prosecution, informant or the accused cannot claim further investigation as a matter of right except that Investigating officer or in-charge of Police Station can undertake further investigation even after the chargesheet is filed [Shyama Charan Dubey v State of UP, (1990) UP Cr R 8 : 1989 (1) Crimes 407 1989 All LJ 67].

Section 173(8) does not empower the Magistrate to review his earlier order discharging the accused and take cognizance upon the supplementary report [K Ramasubbu v State, 1988 Cr LJ 214 : 1987 (1) Crimes 914 : 1987 Mad LW (Cri) 79 (Mad) read; See also Law Commission’s 41st Report, paras 14, 23].

Section 173(8) is permission in character. Neither the prosecution (informant) nor the accused can claim from the Court, as a matter of right, a direction consequenting further investigation to the investigating officer [Shyama Charan Dubey v State of UP, (1990) Cr LJ 456 : 1990 UP Cr R 8 : 1989 (1) Crimes 407 : 1989 All LJ 67 (All) (Palok Basu J)].

In a case of dowry death, during course of investigation a death note of deceased was traced and marked during course of trial. Objection was raised by the accused that the death note was not in handwriting of accused. In the circumstances of the case permission was granted to investigating officer to conduct further investigation in proving the handwriting of the deceased on death note [Lingam Subramanyan v Putta Seshadri, 2006 Cr LJ (NOC) 537 (AP) : 2006 (2) Andh LT (Cr) 2006 ].

In the instant case there was no fresh material for submission of the second charge-sheet, the second chargesheet as well as order taking cognizance cannot be considered in consonance with the provision of section 173(8), Code of Criminal Procedure, 1973 [Manilal Keshri v State of Bihar, 2006 Cr LJ 3981 (3983-84) (Pat) : 2006 (4) Pat LJR 32 ].

Two separate trials in a police case on the basis of two charge-sheets cannot proceed specially when the second charge-sheet is completely illegal and without jurisdiction [Manilal Keshri v State of Bihar, 2006 Cr LJ 3981 (3984) (Pat) : 2006 (4) Pat LJR 32 ].

When on the basis of first sample the charge sheet has been submitted to the concerned Court, in the absence of any new material on evidence if for drawing second sample any order by the Court is passed, that would be bad in law [Rajendra Prasadalias Pappu v State, 1995 Cr LJ 2878 (Delhi)].

In a Madras case the police filed an interim Report. The Magistrate took cognizance by issuing process. The Magistrate had not closed the proceedings once and for all. Further investigation was conditioned by examining some more witnesses. Filing of the final report thereafter by the police was held to be not illegal [J Muthukrishnan v State of Madras, 1990 Cr LJ 2570 [Janarllabana J].

Page 19 of 25 [s 173] Report of police officer on completion of investigation.— The submission of a report under section 173(2) does not preclude further investigation. The investigating agency can submit supplementary reports to the Magistrate even where the magistrate has taken cognizance of the offence upon a police report. The position is as under—

(a) Upto the stage of submission of a charge-sheet or “final” report under section 173, the executive wing of the State Government has full power and control over the investigation of the case. (b) Once the report is submitted to the Magistrate, the executive wing of the State Government cannot interfere with the trial of the case. Of course, there is power with the executive wing of the State Government to withdraw the case with the Court’s permission. (c) At the same time, the executive wing of the State Government retains the power to direct further investigation in the case even if, upon an earlier report submitted to the Magistrate under section 173(2), cognizance of the case has been taken by the Magistrate [Zulfiqarbeg alias Baby v State of UP, (1992) Cr LJ 2067 : 1991 (2) Crimes 699 : 1992 All Cr C 260 (All) (BP Singh J].

The powers of a Magistrate in terms of section 173(2) read with sections 173(8) and 156(3) of the Code are as follows:

1. The Magistrate has no power to direct “reinvestigation” or “fresh investigation” (de novo) in the case initiated on the basis of a police report. 2. A Magistrate has the power to direct “further investigation” after filing of a police report in terms of section 173(6) of the Code. 3. Neither the scheme of the Code nor any specific provision therein bars exercise of such jurisdiction by the Magistrate. The language of section 173(2) cannot be construed so restrictively as to deprive the Magistrate of such powers particularly in face of the provisions of section 156(3) and the language of section 173(8) itself. In fact, such power would have to be read into the language of section 173(8). 4. The Code is a procedural document, thus, it must receive a construction which would advance the cause of justice and legislative object sought to be achieved. It does not stand to reason that the legislature provided power of further investigation to the police even after filing a report, but intended to curtail the power of the Court to the extent that even where the facts of the case and the ends of justice demand, the Court can still not direct the investigating agency to conduct further investigation which it could do on its own. 5. It has been a procedure of proprietary that the police has to seek permission of the Court to continue “further investigation” and file supplementary charge-sheet [Vinay Tyaagi v Irshad Ali, 2013 Cr LJ 754 (SC); see also Bhagwant Singh v Commissioner of Police, AIR 1985 SC 1285 : (1985) 2 SCC 537 ].

Where the Magistrate could not order further investigation on his own after taking cognizance, even then, it does not prevent the police from further investigation on its own. [Randhir Singh Rana v State, AIR 1997 (SC) 639 : 1997 Cr LJ 779 : (1997) 1 SCC 361 : 1997 (1) Crimes 58 ].

The Court can direct the police to conduct further investigation without affording an opportunity to the accused even after taking of cognizance of the offence on the basis of police report first submitted [Sri Bhagwan Samardha Sreepada Vallabha Venkata Vishwandha Maharaj v State of AP, AIR 1999 SC 2332 : 1999 Cr LJ

Page 20 of 25 [s 173] Report of police officer on completion of investigation.— 3661 : (1999) 5 SC 740 : 1999 (3) Crimes 197 (SC)]. Neither the prosecution nor the accused can claim as a matter of right a direction from the Court commanding further investigation by IO, under sub-section (8) after a charge-sheet has been filed [Dara Singh v Republic of India, 2002 Cr LJ 1754 (Ori) : 2002 (1) Ori LR 367 : 2002 (22) OCR 488 ; Vikas Gupta v State of Punjab, 2002 Cr LJ 4165 (P&H) : 2002 (2) All CrLR 307 : 2002 (2) DMC 45 ].

The contention that without prior permission obtained by the prosecution no cognizance can be taken on the basis of the supplementary charge-sheet was rejected [Ghanshyam Jena v State of Orissa, 2003 Cr LJ 4794 : 2003 (26) OCR 266 (Ori)].

When, after cognizance of the offence the accused appeared before the Magistrate in pursuance of process, Magistrate cannot of his own order for further investigation in the case. [Randhir Singh Rana v State, AIR 1997 SC 639 : 1997 Cr LJ 779 : (1997) 1 SCC 361 : 1997 (1) Crimes 58 (SC)].

In the instant case, the police submitted final report and before acceptance, permission was sought for further investigation by Anti-corruption Department, and despite objection by the petitioner, the same was allowed. Since allegation of corruption was made against the police officers named in the FIR, the State Government was held perfectly justified in entrusting further investigation of the case to the Anti-corruption Department. It was also held that the petitioner accused had no locus standi to raise objection [Narendra Kumar Agrawal v State of UP, 2003 Cr LJ 1092 : 2003 All LJ 96 : 2003 (46) All Cr C 169 : 2003 (1) All Cr R 392 (All)].

Magistrate has no power to call upon the police to submit charge-sheet [Kapil Garg (Dr.) v State, 2004 (1) Crimes 100 (Del); Sarwan Singh v State of Punjab, 2004 Cr LJ 4038 (P&H) : 2004 (2) Rec CrR 971; State of HP v Amar Singh, 2003 (1) Crimes 259 (HP); Abhinandan Jha v Dinesh Mishra, 1968 Cr LJ 97 : AIR 1968 SC 117 : 1967 (3) SCR 668 ]. [s 173.34] Two charge-sheets on the basis of one FIR.— In a Karnataka case, the proceedings were initiated against the accused for obtaining passport by impersonatum from Banglore Passport Authority. Subsequently, another case was filed against the accused in respect of obtaining passport from Bombay Passport Authority on the basis of the same FIR. It was held that filing of separation charge-sheet on the basis of same FIR was not proper [Motisham Mohammed Ismail v CBI, SCD Bank Securities and Frauds Cell, 2003 Cr LJ 4763 : AIR 2003 Kant HCR 2824 : 2003 (6) Kant LJ 375 (Kant)].

Since on an earlier occasion, there was a finding in favour of the present petitioners recorded by the trial Judge on an application under section 319, Code of Criminal Procedure, 1973 which was affirmed by the Court in revision that they could not be added as additional accused persons, therefore, in these circumstances, submission of supplementary charge-sheet by the police against the petitioners as well as taking of cognizance by the Judicial Magistrate against petitioners on the basis of that supplementary charge-sheet, cannot be sustained as they would hit the principle of issue estoppel/res judicata and would frustrate earlier orders passed by the learned trial Judge as well as by this Court [Ladu Devi v State of Rajasthan, 2005 Cr LJ 543 (Raj)]. [s 173.35] Charge-sheet—Deceased person.— In the charge-sheet filed by CBI in the form prescribed under section 173, name of accused who was not sent up for trial because of death could be mentioned. The name cannot be deleted though the deceased is entitled to the presumption of innocence. [Rajiv Gandhi Ekta Samiti v UOI, 2000 Cr LJ 2002 : (2000) 83 DLT 89 : (2000) 52 DRJ 507 (Del)]. [s 173.36] Consulting the Public Prosecutor.— The Investigating Officer is not bound to consult the Public Prosecutor before filing a police report as investigation and prosecution are two distinct functions [R Sarala v TS Velu, AIR 2000 SC 1731 : 2000 Cr LJ 2453 : (2000) 4 SCC 459 : 2000 (2) Crimes 187 (SC)]. [s 173.37] Re-investigation.— After the Magistrate has taken cognizance, re-investigation by the police is not barred. But it should not be

Page 21 of 25 [s 173] Report of police officer on completion of investigation.— undertaken without the permission of the Magistrate [Gobardhan Das v State of Orissa, 2000 Cr LJ 1641 : (2000) 89 Cut LT 509 : 1999 (2) Ori LR 381 (Ori)].

No fresh crime was registered against wife on basis of letter by uncle of deceased alleging her involvement in murder of her husband, order of magistrate permitting to conduct brain mapping and lie-detection test on her was not proper [Surekha Dyaneshwar Sonaware v Commissioner of Police, 2007 Cr LJ NOC 35 : 2006 (6) AIR Bom R 102 (Bom)]. [s 173.38] Final report—Magistrate deciding to drop proceedings—Notice to informant.— The informant is not prejudicilly affected when the Magistrate decides to take cognizance and to proceed with the case. But, where the Magistrate decides that sufficient ground does not subsist for proceeding further and drops the proceedings or takes the view that there is material for proceeding against some and there are insufficient grounds in respect of others, the informant would certainly be prejudiced as the FIR lodged becomes wholly or partially ineffective [Bhagwant Singh v Commission of Police, AIR 1985 SC 1285 : 1985 Cr LJ 1521 : 1985 (2) SCC 537 : 1985 SCC (Cri) 267 : 1985 (1) Crimes 994 (SC)].

Where the Magistrate decides not to take cognizance and drop the proceeding or takes a view that there is no sufficient ground for proceeding against some of the persons mentioned in the FIR, notice to the informant and grant of opportunity of being heard in the matter becomes mandatory. There is no provision in the Code for issue of a notice in that regard [Gangadhar Janardhan Mahatre v State of Maharashtra, AIR 2004 SC 4753 : 2004 Cr LJ 426 : (2004) 7 SCC 768 : 2004 (4) Crimes 228 (SC)]. A copy of final report would be given to the informant and opportunity of hearing shall also be given to him [Pramod Behl v State of Jharkhand, 2004 Cr LJ (NOC) 362 (Jhar) : 2004 AIR Jhar HCR 3097].

The notice of complainant would be necessary only when the Magistrate though report is sent under section 173 against particular accused does not deem it proper to take cognizance against him [Abdul Razak Abdul Gani Dunge v State of Maharashtra, 2008 Cr LJ 133 (134)].

Magistrate is not bound to accept final report [UOI v Prakash P Hinduja, 2003 Cr LJ 3117 (SC) : AIR 2003 SC 2612 : 2003 (3) Crimes 142 : (2003) 6 SCC 195 ]. Rejection of final report without assigning any reason is improper [Manojbhai Bhagwandas Shah v State of Gujarat, 2002 Cr LJ 2134 (2136, 2137) (Guj) : 2002 (2) Guj LR 1052 : 2002 (2) Cur CrR 353; Ram Kumar Rai v State of MP, 2002 Cr LJ 4372 (MP)].

Held, in the instant case, the investigating authority had rightly taken a decision that no materials were available to substantiate the prima facie case of the de facto complainants. Therefore, he had filed a closure report. The Metropolitan Magistrate also had arrived at a right decision that it was a fit case for dropping the proceedings and accepted the closure report filed by the investigating officer. The order passed by the magistrate dropping the proceedings was not tainted with impropriety or illegality [Pradeep Jain v Inspector of Police, CCB, Chennai, 2009 Cr LJ 4789 (4793) (Mad)]. [s 173.39] Final report and complaint cum protest.— Even after the Magistrate accepts the final report of the police and discharges the accused, he can still take cognizance on a complaint-cum-protest petition filed by complainant if new facts are unfolding. He can direct inquiry under section 202 [Jitendra Kumar Agarwalla v State of Bihar, (2000) Cr LJ 2730 : 2000 (2) East Cr C 878 : 2000 (4) Rec Cr R 377 (Pat)].

The complainant alleged that two ladies were allegedly doing illegal business of liquor and that his daughter was kidnapped and subjected to sexual harassment by the servant of the above-said ladies. It was further alleged that his daughter committed suicide due to her sexual harassment. The complainant filed a protest petition for issuing direction to properly investigate matter and file final form. As there was no proof on record the IO had submitted final form, the Court issued direction to the investigating officer to look into matter. Keeping in view the protest petition and the allegations against ladies in the complaint the court also issued direction to the Superintendent of Police to supervise the matter [Surendra Mahato v State of Jharkhand, 2009 Cr LJ (NOC) 938 (Jhar)].

Page 22 of 25 [s 173] Report of police officer on completion of investigation.—

If the material in the case diary submitted with the final report by the investigating officer was not sufficient to take cognizance against the accused person, then having regard to the allegations made in the FIR, the protest petition of the complainant should be treated as complaint after following the procedure laid down in chapter XV of Code of Criminal Procedure, 1973, the Courts should decide whether complaint may be dismissed or process against the accused should be issued. In case the process is issued, then the final report has to be rejected [Anil Kumar Vashisth v State of UP, 2010 Cr LJ 1525 (All) : 2010 (1) All LJ 517]. [s 173.40] Investigation.— Death of a person in police firing. Where the police conducted the biased investigation and filed final report then the Supreme Court directed enquiry by sessions judge who submitted the report but the State Government have investigated the matter by an independent agency and as such, such an action of State Government is not proper, matter directed to be enquired by CBI [Munir Alam v UOI, AIR 1999 SC 2267 : 1999 Cr LJ 3523 : (1999) 5 SCC 243 : 1999 (2) Crimes 428 (SC)].

Where the confession of made is compared with case diary, the order is illegal [Ammini v State of Kerala, AIR 1988 SC 260 : (1998) 2 SC 301 : 1998 Cr LJ 4811 : 1997 (4) Crimes 131 (SC)]. [s 173.41] Biased investigation.— When even on directions of Supreme Court the investigation by state agency is not impartial but biased, Court has power to direct the CBI to enquire and file report to proceed in line with legal aspects [Munir Alam v UOI, AIR 1999 SC 2267 : 1999 Cr LJ 3523 : (1999) 5 SCC 243 : 1999 (2) Crimes 428 (SC)].

Even after the conclusion of the investigation pursuant to filing of FIR and submission of report under section 173(2), Code of Criminal Procedure, 1973, the officer-in-charge of the police station comes across any further information pertaining to same incident, he can make further investigation with the leave of the court and further evidence, if any collected further report or report under section 178(8), Code of Criminal Procedure, 1973 [Jeevan Singh v State of Rajasthan, 2004 Cr LJ 3469 : 2004 (4) Rec Cr R 717.2 (Raj)].

The Magistrate has committed gross illegality in returning the final report to the SHO of the police station on his just asking for production before the Superintendent of Police. It is not the rule that once a police report has been forwarded the matter cannot be further investigated and police can ask for return of the final report. The police can make an appropriate application and seek permission for further investigation which may include directions with regard to investigation by the higher police authorities [Jeevan Singh v State of Rajasthan, 2004 Cr LJ 3469 : 2004 (4) Rec Cr R 717.2 (Raj)]. [s 173.42] Further investigation.— In R Sarala v TS Velu, AIR 2000 SC 1731 : (2000) Cr LJ 2453 : 2000 (4) SCC 459 : 2000 SCC (Cri) 823 : 2000 (2) Crimes 187 (supra), the Hon’ble Supreme Court, while considering the question regarding giving of direction by the Court to the Investigating Officer to take opinion of the Public Prosecutor for filing the chargesheet, has observed as under:—

… The formation of the opinion, whether or not there is a case to place the accused on trial, should be that of the Officer-in-charge of the police station and none else. There is no stage during which the Investigating Officer is legally obliged to take the opinion of the Public Prosecutor or any authority, except the superior Police Officer in the rank as envisaged in section 36 of the Code. A Public Prosecutor is appointed as indicated in section 24, Code of Criminal Procedure, 1973 for conducting any prosecution, appeal or other proceedings in the Court. He has also the power to withdraw any case from the prosecution with the consent of the Court. He is the officer of the Court. Thus the Public Prosecutor is to deal with a different field in the administration of justice and he is not involved in investigation. It is not in the scheme of the Code for supporting or sponsoring any combined operation between the Investigating Officer and the Public Prosecutor for filing the report in the Court.

Page 23 of 25 [s 173] Report of police officer on completion of investigation.—

Thus, from the aforesaid judgments, it is clear that the Police is the master of the investigation and formation of opinion as to whether, on the material collected, a case is made out to place the accused for trial is the exclusive function of the officer-in-charge of the police station and/or his superior officers. The magistrate, while accepting or rejecting the report, cannot compel the investigation agency to change its opinion and to form a particular opinion or to submit the challan. The formation of the said opinion by the police is the final step is to be taken only by the Police and not by other authority [Harinder Pal Singh v State of Punjab, 2004 Cr LJ 2648 : 2004 (3) All CrLR 10 : 2004 (2) Rec Cr R 307 : ILR 2004 (2) P&H 606 (P&H); see also Gian Prakash Sharma v CBI, Chandigarh, 2004 Cr LJ 3817 (P&H) : 2002 (4) Rec CrR 228 : 2003 (1) FAC 7].

It is always open for the Magistrate to decline to accept the closure report and direct the Police to further investigate the matter, but once the closure report is not accepted by the Magistrate and the matter has been ordered to be re-investigated, then for the second time the magistrate cannot compel the Police to take a particular view in the matter and submit the challan in the case. If the Magistrate does not agree with the opinion formed by the Police and still suspects that an offence has been committed, he is entitled, notwithstanding the opinion of the police, to take cognizance under section 190(1)(c) of the Code, but he cannot direct the Police to re-investigate the matter for the third time [Harinder Pal Singh v State of Punjab, 2004 Cr LJ 2648 : 2004 (3) All CrLR 10 : 2004 (2) Rec Cr R 307 : ILR 2004 (2) P&H 606 (P&H). See also Gian Prakash Sharma v CBI, Chandigarh, 2004 Cr LJ 3817 (P&H) : 2002 (4) Rec CrR 228 : 2003 (1) FAC 7].

Acceptance of final report of investigator without any notice to the appellant is not justified and the Magistrate could in exercise of power under section 173(8) of the Code, direct further investigation in view of objection raised by the appellant [Union Public Service Commission v S Papaiah, AIR 1997 SC 3876 : 1997 Cr LJ 4636 : 1997 (7) SCC 614 : 1997 SCC (Cri) 1112 ].

Validity of acceptance of final report was in question. Petitioner alleged that respondents in collusion with others had executed sale deed and sold property on basis of fake power of attorney. Magistrate had drawn the presumption that power of attorney was valid as it was bearing signature of petitioner but no opportunity was given to him to rebut the presumption. Prima facie offence under section 404 of Indian Penal Code was made out and order of magistrate was set aside [Prabhat Bhatnagar v State, 2007 Cr LJ 4349 (Raj)].

Order passed by magistrate directing Police to conduct further investigation into came after receiving report under section 173(2) of Code is justified [Leela Das v State, (CBI), 2001 Cr LJ 2684 (Cal)].

Order for further investigation by CBCID was held justified where the son and daughter-in-law had died in mysterious circumstances and prima facie material was available for order [S Radha Mony v Home Secretary Govt of Tamil Nadu, 2007 Cr LJ (NOC) 389 (Mad)].

Precise reasons not required to be given by Magistrate for ordering further investigation into the matter [Leela Das v State, (CBI), 2001 Cr LJ 2684 (Cal)].

The Magistrate is competent to direct Investigation Authority to conduct further investigation [Leela Das v State (CBI), 2001 Cr LJ 2684 (Cal)].

Investigating agency is not precluded from further investigation in respect of an offence inspite of forwarding a report under sub-section (2) of section 173 on a previous occasion. This is clear from section 173(8) of Code [Kari Choudhary v Most Sita Devi, AIR 2002 SC 441 : (2002) 1 SCC 714 : 2002 (1) Crimes 11 : 2002 Cr LJ 923 : 2002 (1) UJ 206 (SC)].

Further investigation of case by police subsequent to filing of charge-sheet and taking of cognizance of offence

Page 24 of 25 [s 173] Report of police officer on completion of investigation.— is permissible under section 173 [State of Orissa v Dara Singh, 2001 Cr LJ NOC 149 : 2000 (1) Ori LR 320 (Ori)].

In an offence triable only by court of sessions at a stage prior to one under section 319 of Code, Magistrate cannot issue process against persons who may be named in FIR but not charge-sheeted under section 173 of Code [Kishori Singh v State of Bihar, 2001 Cr LJ 123 (SC)].

Re-investigation made after decade of incident by order of court cannot be invalid on the ground of delay. [Habibullah Khan v State of Orissa, 2001 Cr LJ NOC 146 : 2001 (1) Ori LR 519 (Ori)].

Special Judge has power to order further investigation even after receiving investigation report filed by CBI [Hemant Dhasmana v CBI, AIR 2001 SC 2721 : 2001 Cr LJ 4190 : (2001) 7 SCC 536 : 2001 (4) Crimes 183 (SC)].

Where final refer report was sent promptly to Magistrate by IO, then mere non-obtaining of prior permission of Magistrate for further investigation as directed by IG of Police would not vitiate proceedings [Abubaker v State of Kerala, 2001 Cr LJ 404 : 2001 (2) Crimes 212 : 2000 (3) Ker LT 857 (Ker)].

Order directing re-investigation cannot be considered as an order requiring investigation agency to change its opinion. [Habibullah Khan v State of Orissa, 2001 Cr LJ NOC 146 : 2001 (1) Ori LR 519 (Ori)].

A Magistrate cannot order further investigation after taking cognizance of the offences and after appears before him in pursuance of variance of process except giving formal permission to make further investigation to police when fresh facts come to light [KM Natarajan v Sasidharan, 2002 Cr LJ 1672 (Ker) : 2002 (1) Ker LT 499 : 2002 (3) Cur CrR 171].

The powers of the police to further investigate under section 173(8) are unfettered and when trial is proceeding, police may inform the concerned Court about further investigation, but no Court can direct such investigation under section 173(8) after taking cognizance upon the police report [Mitesh Kumar Rameshbhai Patel v State of Gujarat, 2006 Cr LJ 3198 (3205) (Gujarat)].

The police has right of further investigation under section 173(8) but it has no right of fresh investigation or reinvestigation. [Ramakant Singh v State of Bihar, 2008 Cr LJ (NOC) 413 : 2008 (1) ALJ 658 (689) (All)].

In the instant case, original charge-sheet was filed against accused alone and the cognizance of offence was taken for the offence under section 224, Indian Penal Code, 1860 against accused for escaping from the court’s custody. During the course of trial, when PW-1 to PW-3 turned hostile or the official memos issued by the District Judge and the Additional Judicial Magistrate, additional charge-sheet has been filed. Appropriate disciplinary action can be taken against them departmentally. The District Judge cannot direct the police for further investigation and file additional charge-sheet against the accused. Filing of additional charge-sheet after the trial has commenced is illegal [Sadhu Narayana v SHO 1st Town PS Kadapa, 2006 Cr LJ 3038 (AP)].

The Magistrate should not direct that further investigation shall be carried out by a particular agency or from a particular angle [Papular Muthiah, (2006) 7 SCC 296 : (2006) 3 SCC (Cri) 245 ].

In a case registered against accused under sections 420, 487, 120B, Indian Penal Code, 1860 when the police submitted negative report after investigation, the Magistrate’s order directing investigating officer to carry out further investigation in a particular manner was held liable to be set aside [Pramod Kumar Saini v State of Rajasthan, 2006 Cr LJ 3525 (3527) (Pat)].

Page 25 of 25 [s 173] Report of police officer on completion of investigation.—

In the instant case, the final report was submitted within two days of the commencement of the investigation. No reasons were mentioned as to why no case was disclosed against the accused and other accused especially as the deceased had died in the jail premises with injuries on his dead body. This fact was mentioned in the FIR. The injuries on the dead body and the mentioning of injuries in FIR was contrary to the case of the deceased having committed suicide by banging his head against the wall. Held, the case was fit for further investigation [Kare Singh v State of UP, 2008 Cr LJ (NOC) 1131 (All) : 2008 (4) All LJ 554 : 2008 (62) All Cri C 144].

The investigating officer is bound to issue notice to the person who gives first information in view of mandatory provisions of section 173(2), for further investigation [K Muralidharan v State of Kerala, 2007 Cr LJ 417 (Ker)]. [s 173.43] Investigation by CBI.— The power of the state to refer the matter to CBI for further investigation under section 6 of the Delhi Special Police Establishment Act or power of the court to refer the matter to CBI for further investigation is in no way restricted by section 173(8) [J Prabhavathimma v State of Kerala, 2008 Cr LJ 455 (463) : 2008 (1) Ker LJ 9 (Ker—DB) : 2007 (4) Ker LT 601 ]. In cases of death in police custody investigation by CBI is desirable [Ibid; Dattaram A Awate v State of Maharashtra, 2006 Cr LJ (NOC) 143 : 2006 (2) AIR Bom R 270 (DB) : 2006 All MR (Cri) 78 : 2006 (2) BMC 737]. Such an enquiry can be ordered during the trial of the case [Ibid]. [s 173.44] Whether a Magistrate can disagree with the police report and issue process to accused.— The question before the Apex Court was whether a Magistrate can disagree with the police report and take cognizance and issue process and summon the accused. The Apex Court held that a Magistrate has jurisdiction to ignore the opinion expressed by investigating officer and independently apply his mind to the facts that have emerged from the investigation. [Chandra Babu v State, through Inspector of Police, AIR 2015 SC 3566 : 2015 (7) Scale 529 ].

The charge-sheet filed preceded by three closure reports. The cognizance taken was challenged on the ground that the second and the third closure reports were not considered. The contention was held to be not tenable on the ground that the second closure report was considered when further investigation was ordered leading to filing of third closure report. The third closure report was held nullity in law since further investigation leading to filling of third closure report was done during subsistence of stay order. [Ram Saran Varshney v State of UP, AIR 2016 SC 744 : 2016 (3) SCJ 39 ].

13

Ins. by the Code of Criminal Procedure (Amendment) Act, 2008 (5 of 2009), section 16 (w.e.f. 31 December 2009).

14

Ins. by the Code of Criminal Procedure (Amendment) Act, 2008 (5 of 2009), section 16 (w.e.f. 31 December 2009).

15

Subs. by the Criminal Law (Amendment) Act, 2013 (13 of 2013), section 17, for the words “or 376D of the Indian Penal Code” (w.e.f. 3 February 2013).

End of Document

[s 174] Police to enquire and report on suicide, etc.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER XII INFORMATION TO THE POLICE AND THEIR POWERS TO INVESTIGATE

The Code of Criminal Procedure, 1973 CHAPTER XII INFORMATION TO THE POLICE AND THEIR POWERS TO INVESTIGATE [s 174] Police to enquire and report on suicide, etc.— (1) When the officer-in-charge of a police station or some other police officer specially empowered by the State Government in that behalf receives information that a person has committed suicide, or has been killed by another or by an animal or by machinery or by an accident, or has died under circumstances raising a reasonable suspicion that some other person has committed an offence, he shall immediately give intimation thereof to the nearest Executive Magistrate empowered to hold inquests, and, unless otherwise directed by any rule prescribed by the State Government, or by any general or special order of the District or Sub-divisional Magistrate, shall proceed to the place where the body of such deceased person is, and there, in the presence of two or more, respectable inhabitants of the neighbourhood, shall make an investigation, and draw up a report of the apparent cause of death, describing such wounds, fractures, bruises, and other marks of injury as may be found on the body, and stating in what manner, or by what weapon or instrument (if any), such marks appear to have been inflicted. (2) The report shall be signed by such police officer and other persons, or by so many of them as concur therein, and shall be forthwith forwarded to the District Magistrate or the Sub-divisional Magistrate. (3)

16[When—

(i)

the case involves suicide by a woman within seven years of her marriage; or

(ii) the case relates to the death of a woman within seven years of her marriage in any circumstances raising a reasonable suspicion that some other person committed an offence in relation to such woman; or (iii) the case relates to the death of a woman within seven years of her marriage and any relative of the woman has made a request in this behalf; or (iv) there is any doubt regarding the cause of death; or (v) the police officer for any other reason considers it expedient so to do, he shall], subject to such rules as the State Government may prescribe in this behalf, forward the body, with a view to its being examined, to the nearest Civil Surgeon, or other qualified medical man appointed in this behalf by the State Government, if the state of the weather and the distance admit of its being so forwarded without risk of such putrefaction on the road as would render such examination useless. (4) The following Magistrates are empowered to hold inquests, namely, any District Magistrate or Subdivisional Magistrate and any other Executive Magistrate specially empowered in this behalf by the State Government or the District Magistrate.

Page 2 of 7 [s 174] Police to enquire and report on suicide, etc.— [s 174.1] Changes.— Section 174 corresponds to old section 174 with the following changes :

(1) Sub-section (1) has been redrafted by consolidating the matters of old clauses (a), (b) and (c) and omitting the letters “(a), (b) and (c)”. In it, the word “Executive” has been added before the word of “Magistrate”. (2) Old sub-section (4) has been omitted and old sub-section (5) has been renumbered as sub-section (4). In it the words “or Magistrate of the first class” after “Sub-divisional Magistrate” have been omitted and words “other Executive” have been inserted. (3) Sub-section(3) has been substituted by Act No. 46 of 1983, section 3. [s 174.2] Scope and application of section 174.— The section provides for investigation by the police in cases of unnatural or suspicious death. When the body cannot be found or has been burned or buried, there can be no inquiry under section 174 [Gul Hasan, 9 Cr LJ 105], but if the death is suspicious the police is to investigate in the ordinary manner and diary has to be kept under section 172. The body cannot be exhumed by the police. A Magistrate has the power (section 176) as also a coroner. The scope of proceedings under section 174 is very limited, the object being merely to ascertain whether a person has died under suspicious circumstances or an unnatural death and, if so, what is the apparent cause of death. The details as to under what circumstances or how the deceased was assaulted or who assaulted him are foreign to the ambit of the proceedings [Poddanarayana v State of AP, AIR 1975 SC 1252 : 1975 Cr LJ 1062 : (1975) 4 SCC 153 (SC); Yogendra Singh v State of Rajasthan, 1980 Cr LJ (NOC) 113 (Raj)].

Sub-section (1) of section 174 of the Code of Criminal Procedure only puts an obligation on the part of the Investigating Officer to intimate the Executive Magistrate empowered to hold inquest but there is nothing in law, which provides that investigation cannot be carried out without his permission in writing or in his absence. Even otherwise, the provision stands qualified “unless otherwise directed by any rule prescribed by the State Government, or by any general or special order of the District or Sub-divisional Magistrate.” The object of the inquest proceeding is merely to ascertain whether a person has died under unnatural circumstances or an unnatural death and if so, what is the cause of death. More so, the inquest report is not a piece of substantive evidence and can be utilised only for contradicting the witnesses to the inquest examined during the trial. Neither the inquest report nor the post-mortem report can be termed as basic or substantive evidence and thus, any discrepancy occurring therein cannot be termed as fatal or suspicious circumstance which would warrant benefit of doubt to the accused [Madhu v State of Karnataka, AIR 2014 SC 394 : 2013 (14) Scale 502 ; Pedda Narayan v State of AP, AIR 1975 SC 1252 : (1975) 4 SCC 153 ; Rameshwar Dayal v State of UP, AIR 1978 SC 1558 : (1978) 2 SCC 518 ; Kuldeep Singh v State of Punjab, AIR 1992 SC 1944 : 1992 Cr LJ 3592 (SC); George v State of Kerala, AIR 1998 SC 1376 : 1998 Cr LJ 2034 (SC); Suresh Rai v State of Bihar, AIR 2000 SC 2207 : 2000 Cr LJ 3457 (SC); Munshi Prasad v State of Bihar, AIR 2001 SC 3031 : 2001 Cr LJ 4708 (SC)].

The inquest examination shall be conducted by the investigating staff of the police on the spot itself without any delay and statements of the inquest witnesses are to be recorded under section 161 of the Code of Criminal Procedure and the inquest panchnama shall be sent along with the above case record prepared along with the First Information Report without any delay whatsoever to the Court [PUCL v State, 2014 (10) SCC 635 ].

When a woman, commits suicide within seven years of her marriage as provided under sub-section (3) of section 174, Code of Criminal Procedure, 1973, it is the duty of the nearest Magistrate, so empowered to hold an inquiry into the cause of death either instead of or in addition to investigation held by the police officer under section 174, Code of Criminal Procedure, 1973 [Nidhan Biswas v State of Tripura, 2006 Cr LJ 2429 (2434) (Gau)].

Page 3 of 7 [s 174] Police to enquire and report on suicide, etc.— Non-recording of time as to when inquest proceedings started and ended, cannot said to be material defect to disbelieve the prosecution story. [Yogesh Singh v Mahabeer Singh, AIR 2016 SC 5160 : 2017 (2) SCJ 402 ].

In case of death of religious preacher, a petition was filed by a person claiming to be driver, for direction to police to conduct postmortem. There was no information under section 154 of the Code and there was no proof of unnatural death. The court found that there is no case of homicide requiring investigation hence the petition was held to be not maintainable. [Dalip Kumar Jha v State of Punjab, AIR 2015 (NOC) 562 (P&H) : 2015 (2) RCR (Civil) 932 ]. [s 174.3] Proceedings on complaint.— Proceedings under this section should be kept distinct from proceedings on complaint regarding the same death [Gulab, AIR 1927 L 30]. As inquest is concerned with establishing the cause of the death and only evidence to establish it is necessary, and all witnesses need not be examined [Shakila Khader v Nausheer Cama, AIR 1975 SC 1324 : 1975 Cr LJ 1105 : (1975) 4 SCC 122 ]. The inquest report is made just to indicate the injuries found on the bodies of the deceased, and it is not necessary to record the statements of the witnesses or to get the statements signed and incorporated in the report [Narpal Singh v State of Haryana, AIR 1977 SC 1066 : 1977 Cr LJ 642 : (1977) 2 SC 131 (SC)]. It is not incumbent to record separate statements of persons examined [Mettu, AIR 1960 AP 545 ]. The verbatim report of statements of witnesses may be of great use in testing the value of evidence subsequently given [Panchudayan, 1911 MWN 138 : 12 Cr LJ 124]. The attendance of witness is enforced under section 175. [s 174.4] Witnesses statements.— Statements by witnesses during inquiry are governed by section 162 [Razik Ram Chaudhary v Chaudhary Jaswant Singh, AIR 1975 SC 667 : (1975) 4 SCC 769 ; Narpal Singh v State of Haryana, AIR 1977 SC 1066 : 1977 Cr LJ 642 : (1977) 2 SCC 131 (SC); Manruthamuthu, 50 M 750; Hansraj, AIR 1936 L 341; see ante section 162]. The inquest report is therefore not to be signed by the witnesses. The signature required under sub-section (2) refers to the respectable inhabitants in sub-section (1) in whose presence the enquiry is held [Karuvila, AIR 1925 T-C 300]. The inquest report is not substantive evidence [Adi Bhumiani v State, AIR 1957 Ori 216 : 1957 Cr LJ 1152 : 23 Cut LT 22 : ILR (1957) Cut 400 ]. It may be used in corroboration of evidence [Mukanda v State, AIR 1957 Raj 331 : 1957 Cr LJ 1187 ; Govind v State of Gujarat, AIR 1967 Guj 288 : 1967 Cr LJ 1633 (2)]. [s 174.5] Right to report.— Post-mortem report and/or inquest report not being public document accused is not entitled to inspect or receive their copies during investigation [State v Gian Singh, 1981 Cr LJ 538 : (1981) 19 DLT 104 : (1981) 83 Punj LR (D) 96 (Del)]. The accused is not entitled to copies of statements recorded, but the interests of fair trial do require that copies of statements are made available to the accused at the proper time [Palaniswamy Vaiyapuri v State, AIR 1968 Bom 127 : 1968 Cr LJ 453 : 68 Bom LR 941 : 1967 Mah LJ 25 ]. An accused is entitled to a copy of the statement of the witnesses recorded under section 174, Code of Criminal Procedure, 1973 as they are previous statements [Badilal Rajak v State of MP, 2003 Cr LJ (NOC) 237 : 2002 (2) MPLJ 496 : 2002 (2) MPHT 338]. At the trial, copy of post-mortorm certificate and inquest report (excluding statements of witnesses covered by section 162) ought to be given to the accused [Maruthamuthu, supra]. It is questionable how far an inquest report is admissible except under section 145, Evidence Act [Pandurang Tukia and Bhillia v State of Hyderabad, AIR 1955 SC 216 : 1955 Cr LJ 572 : 1955 SCR 1083 ]. [s 174.6] Contents of report.— The report is to contain the particulars mentioned in sub-section (1). Results of observation external and internal should be fully recorded [Panchudayan, supra]. Other matters should be entered in the special diary under section 172. Provisions of section172 do not apply to an inquiry or investigation under section 174. Although it is desirable to maintain a case diary, it is not correct to suggest that it is obligatory on the part of the police officer to maintain such a diary in respect of investigation under section 174. Palamaswamy Vaiyapuri, AIR 1968 Bom 127 : 1968 Cr LJ 453 : 68 Bom LR 941 : 1967 Mah LJ 25 In case of double sub-section (3) applied]. Mention of names of accused, eye-witnesses or weapons carried in the inquest report is not necessary [Radha Mohan Singh v State of UP, 2006 Cr LJ 1121 (SC) : AIR 2006 SC 951 : 2006 (1) Crimes 183 : (2006) 2 SCC 450 ; Ravi v State, 2007 Cr LJ 2740 (2743) (SC); State v Sathish Shetty, 2008 Cr LJ 2490 (2498) (Kant—DB)].

Page 4 of 7 [s 174] Police to enquire and report on suicide, etc.— Mere non-mentioning of name of assailants in the inquest report is one thing, but when before the inquest, the name of the assailants had been transpired and they were named in the FIR, non-disclosure of their identities in the inquest is another thing. A note in the inquest report certainly casts a doubt as to the reliability of the prosecution case [Mobarak SK v State of WB, 2011 Cr LJ 1677 (1681) (Cal) : (2011) 2 CHN 362 : (2011) 1 Cal LT 388].

The question regarding the details as to how the deceased was assaulted or who assaulted him or under what circumstances he was assaulted is foreign to ambit and scope of the proceedings under section 174. Neither in practice nor in law was it necessary for the police to mention those details in the inquest report. Therefore, significance cannot be attached to non-mention of names of assailants in the inquest report [State of MP v Mohan Mishri Lal, 2009 Cr LJ 4571 (4577) (MP) : 2009 (3) MPHT 23 [Podda Narayana v State of AP, AIR 1975 SC 1252 : 1975 Cr LJ 1062 and Radha Mohan v State of UP, 2006 (2) SCC 450 : 2006 Cr LJ 1121 : AIR 2006 SC 951 : 2006 (1) Crimes 183 : 2006 SCC (Cri) 661 Followed]; Ganesh Yadav v State of UP, 2009 Cr LJ (NOC) 1008 (All)].

Where FIR was registered at the initial stage under section 364, Indian Penal Code, 1860 and after recovery of dead body of deceased under sections 302, 201, Indian Penal Code, 1860 were added in inquest report, it was held that as the accused was not to gain any benefit, it would be immaterial that inquest report was prepared after the recovery of dead body of deceased [Prassan Kumar v State of UP, 2009 Cr LJ (NOC) 1207 (All)].

An investigation under section 174, Code of Criminal Procedure, 1973 is for the limited purpose namely, for discovering whether in a given case the death was accidental, suicidal or caused by animal [Ganesh Yadav v State of UP, 2009 Cr LJ (NOC) 1008 (All); Sheo Dayal v State of UP, 2009 Cr LJ 3487 (3491) (All) : 2009 (4) All LJ 581]. Details of FIR, names of accused and gist of statement of eye-witnesses are not required to be mentioned [Kalloo v State of UP, 2009 Cr LJ (NOC) 897 (All)].

The scope of inquest proceedings is limited to ascertain the cause of death. Mention of the name of accused and eye-witnesses in the inquest is not necessary, due to non-mentioning of the name of accused and eyewitnesses in the inquest report it cannot be inferred that FIR was not in existence at the time of inquest report [Rama Shankar v State of UP, 2008 Cr LJ 129 (132) (All-DB) : 2007 (6) All LJ 298 : 2007 (59) All Cri C 911]. [s 174.7] Copy of FIR need not be sent with dead body.— While sending the dead body for post-mortem examination it is not required under section 174, Code of Criminal Procedure, 1973 that copy of FIR should also be sent by IO with body [Krishna Kumar v State of UP, 2008 Cr LJ (NOC) 1016 (All-DB)]. [s 174.8] Object of Section 174.— The object is to ascertain (a) whether a person has died under suspicious circumstances and (b) if so, what is the cause of death [Podda Narayana v State of AP, AIR 1975 SC 1252 : (1975) Cr LJ 1062 : (1975) 4 SCC 153 (SC); Baldeo v State of UP, 2004 Cr LJ 2686 : 2004 All LJ 1533 : 2004 (48) All Cr C 839 : 2004 (1) All Cr R 877 (All); Radha Mohan Singh v State of UP, 2006 Cr LJ 1121 (SC)]. The purpose of preparing the inquest report is for making a note in regard to identification marks of the accused. [Ravi v State, 2007 Cr LJ 2740 (2743)].

Scope of full investigation inquest is confined to ascertaining the cause of death; the inquest is not intended to order full-fledged investigation Rameshwar Dayal v State of UP, AIR 1978 SC 1558 : (1978) 2 SCC 518 (SC); Khujji v State of MP, (1991) Cr LJ 2653 : AIR 1991 SC 1853 : (1991) 3 SCC 627 : 1991 (3) Crimes 82 ].

The question regarding the details of how the deceased was assaulted or who assaulted him or under what circumstances he was assaulted is foreign to the ambit and scope of such proceedings i.e. the inquest report is not the statement of any person wherein all the names of accused persons must be mentioned [Brahm Swaroop v State of UP, 2011 Cr LJ 306 (311) (SC) : AIR 2011 SC 280 : (2011) 6 SCC 288 ]. [s 174.9] Status of inquest report.—

Page 5 of 7 [s 174] Police to enquire and report on suicide, etc.— Inquest report is not evidence at the presentation but can be used to test the veracity of the witness if he makes contradictory statements in the inquest and at the trial [Kuldeep Singh v State of Punjab, AIR 1992 SC 1944 : (1992) Cr LJ 3592 : 1992 SCC (Cri) 946 : 1992 (3) Crimes 575 (SC)].

Names of accused persons need not be mentioned in the inquest report [Mahandra Rai v Mithilesh Rai, (1997) 10 SCC 605 ].

Manner in which incident took place or names of accused need not be mentioned in inquest report [Amar Singh v Balwinder Singh, AIR 2003 SC 1164 : 2003 Cr LJ 1282 : 2003 (2) SCC 518 : 2003 (2) Crimes 186 (SC)].

The opinion given in the inquest report does not attain finality because the dead body has to be subjected to postmortem examination, which is done by medical expert and is more authentic. If the injuries are also not described in detail in the inquest report, it is not a circumstance against the prosecution because the Investigating Officer is not a medical expert. Moreover, an inquest report is not a substantive evidence. It follows that questions regarding the details, as to how the deceased was assaulted or who assaulted him or under what circumstances, he was assaulted, are beyond the scope of the report submitted by the police under section 174, Code of Criminal Procedure, 1973 [Baldeo v State of UP, 2004 Cr LJ 2686 : 2004 All LJ 1533 : 2004 (48) All Cr C 839 : 2004 (1) All Cr R 877]. [s 174.10] Inquest report and post mortem report—Distinction.— Inquest report is primarily intended to find out nature of injury and apparent cause of death, whereas post mortem report contain details of injuries through scientific examinations [Sunil Singha v State of WB, 2007 Cr LJ 516 (Cal)]. [s 174.11] Inquest report and post-mortem report—Discrepancy.— As the post-mortem is conducted by an expert and this would carry more weight than the opinion and findings given by the layman in inquest report [Rohit Yadav v State of Bihar, 2007 Cr LJ (NOC) 202 (Pat)]. [s 174.12] Medical negligence.— It was alleged that the accused persons viz. Surgeon and Anesthetist caused death of patient on operation table due to their negligence. During investigation, it was found that the death was due to the presence of an aesthetic drug known as sodium thio-pental. The prosecution failed to prove that the accused doctors had administered thiopental in excess volume or that the administration was not made in accordance with the established procedure. Thus the prosecution failed to prove that the act of the accused amounted to gross negligence. Acquittal of accused was proper. [Chinnasamy v Dr D Rajendran, 2010 Cr LJ 3713 (3717) (Mad) : (2011) 1 RCR (Criminal) 761]. [s 174.13] Omission of empty cartridges.— Mere omission to mention empty cartridges in the inquest report does not rule out the presence empty cartridges on the spot [Bhikam Singh v State, 2004 Cr LJ 2120 (All) : 2004 All LJ 912 : (2004) 48 All CrC 737].

Where wrong date of lodging FIR has been mentioned in the inquest report and the discrepancy has not been put to the author of inquest report at the time of his examination as witness; no adverse inference can be drawn [Radha Mohan Singh v State of UP, 2006 Cr LJ 1121 (SC) : AIR 2006 SC 951 : 2006 (1) Crimes 183 : (2006) 2 SCC 450 ].

In the site plan, IO is not supposed to note whether electric line had been taken in an unauthorised manner or not. That is not the purpose for which site plan is prepared in a criminal case [State of UP v Krishna Master, 2010 Cr LJ 3889 (3902) (SC) : AIR 2010 SC 3071 : (2010) 12 SCC 324 ]. [s 174.14] Omission of eyewitness.— The mere absence of the name of the eye witness in the inquest report of the site inspection note does not necessarily make the evidence of that witness doubtful, unless there are other serious reasons which create doubt about his testimony. It will depend upon facts and circumstances of each particular case, what

Page 6 of 7 [s 174] Police to enquire and report on suicide, etc.— importance has to be attached to the absence of the name of the eye-witnesses in these documents [Narpat Singh v State of Rajasthan, (1990) Cr LJ 2720 : 1989 (2) Raj LR 568 (Raj—DB)]. [s 174.15] Interpolation in inquest report.— Interpolation in the inquest report renders the case doubtful [State of Haryana v Shibu Narain, 2008 AIR SCW 5400]. Even though the inquest report, prepared under section 174 of the Code, is aimed at serving a statutory function, to lend credence to the prosecution case, the details of the FIR and the gist of statements recorded during inquest proceedings get reflected in the report. The absence of those details is indicative of the fact that the prosecution story was still in an embryo state and had not been given any shape and that the FIR came to be recorded later on after due deliberations and consultations and was then ante-timed to give it the colour of a promptly lodged FIR [Meharaj Singh v State of UP, (1994) 5 SCC 188 : 1995 Cr LJ 457 (SC); see also Sudarshan v State of Maharashtra, (2014) 3 Mad LJ (Cr) 377 (SC) : 2014 (7) Scale 5 62 : 2014 Cr LJ 3232 (SC)]. [s 174.16] Refusal to exhibit panchnama.— If a document is admitted and corroborated by other evidence, it has to be given an exhibit number, or it could be considered for a period regardless of its evidential value. A Panchnama is also always available for court, conviction on that basis is liable to be set aside. [Kali Arshi Lila v State of Gujarat, 1999 Cr LJ 2595 (Guj)]. [s 174.17] Contents of Panchnama.— The contents of the panchnama are not the substantive evidence. What is substantive evidence is what has been stated by the Panchas or the concerned person in the witness box. It is trite law that a previous statement of the witness, even if admissible cannot be used against the witness, unless the witness is confronted with the same and his attention is invited [Murli v State of Rajasthan, 2010 Cr LJ 2228 (2233) (SC) : (2009) 9 SCC 417 ]. [s 174.18] Police Regulations.— The form prescribed by the UP Police Regulation, no doubt contains the column relating to the crime number, name of the complainant, time of commencement and time of conclusion of the inquest report. The object is to have a check on the movement and conduct of the police officials. But, really omitting to mention them in the prescribed form of the inquest report and related papers cannot affect the prosecution case. Such lapses, taken simply, cannot lead to the conclusion that investigation was tainted or unfair [Budhish Chandra v State of UP, (1991) Cr LJ 808 : 1991 All LJ 308 (All-DB)].

Whether inquest of dead body done by Sub-inspector was against provisions of section 174, it cannot be a ground for interference by High Court. Question can be considered by the Court of Session [Rakesh Kumar v State of UP, (1991) Cr LJ 910 : 1991 All LJ 329 : 1991 (1) All CrLR 563 (All)]. [s 174.19] Identity of offender.— Identity of offenders is outside the scope of the inquest [Padda Narayana v State of AP, AIR 1975 SC 1252 : 1975 Cr LJ 1062 : (1975) 4 SCC 153 (SC)].

But if names of only certain persons are named later addition may create doubt Balaka Singh v State of Punjab, AIR 1975 SC 1962 : 1975 Cr LJ 1734 : (1975) 4 SCC 511 ]. [s 174.20] Witnesses.— Mere fact that a previous name was not mentioned in the inquest report as an eye witnesses does not mean that he was not an eyewitness [Shakila Khader v Nausheer Cama, AIR 1975 SC 1324 : 1975 Cr LJ 1105 : (1975) 4 SCC 122 ]. [s 174.21] Sections 174 and 162.— If the statement of a witness is recorded under section 174, the provisions of section 162 shall apply [Razik Ram Chaudhary v Chaudhary Jaswant Singh, AIR 1975 SC 667 , 684 : (1975) 4 SCC 769 (SC)]. [s 174.22] Village head.— In cases of doubt, sub-section (3) applies. The village head acting under sections 174, 175 has only the powers of an officer in section 175 [Andi, 11 Cr LJ 500]. [s 174.23] Sub-section (3).—

Page 7 of 7 [s 174] Police to enquire and report on suicide, etc.— What the post-mortem report should contain [Thakur v State, AIR 1955 All 189 : 1955 Cr LJ 473 ]. Sub-section (3) gives a discretion to be exercised prudently and honestly to the police officer not to send the body for postmortem only where there is no doubt as to the cause of death [Kodali Puranchandra Rao v Public Prosecutor AP, AIR 1975 SC 1925 : 1975 Cr LJ 1671 : (1975) 2 SCC 570 (SC)].

L made a written application to the police to investigate into the alleged murder of his sister, married to one of the accused. However, the police did not receive the same as an FIR. The police, from the very beginning attempted to treat the case as one of suicide. Circumstances seemed to justify an investigation into suspicion of murder. Police were directed to record the written complaint as FIR [Joint Women’s Programme v State of Rajasthan, AIR 1987 SC 2060 : 1988 SCC (Cri) 137 (SC) followed in Patel Lilabhai Ambalal v Patel Karubhai Mafatlal, [(1989) Cr LJ 1898 : (1988) 29 Guj LR 1175 : 1988 (2) CrLC 535 (Guj)].

Where a married woman commits suicide within seven years of marriage, the body ought to be subjected to post-mortem examination and inquest. Evidence showed that death was due to dowry harassment. It was held that failure to register a case immediately atlest under section 174, Code of Criminal Procedure, 1973 and to have the body subjected to postmortem examination to find out the real cause of death and also failure to register a case later when several petitions were sent to different authorities were all lapses which no amount of subsequent investigation could adequately compensate [Gowar Chand v Superintendent of Police, Chingeeput, (1988) Cr LJ 1399 : 1987 Mad LW (Cri) 381 : 1988 (1) Hindu LR 360 (Mad)]. [s 174.24] Overwriting/cutting in report: Effect.— There was cutting/overwriting in the inquest report. But, the fact of homicide death was not in dispute and manner in which death was occurred was also not in dispute. Moreover, the contents of the inquest report were supported by eye-witnesses and medical evidence. The Apex Court held that the mere overwriting in name of informant would not affect proceedings. [Bimla Devi v Rajesh Singh, AIR 2016 SC 158 : (2016) 1 Mad LJ (Cr) 189 (SC)]. End of Document

[s 175] Power to summon persons.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER XII INFORMATION TO THE POLICE AND THEIR POWERS TO INVESTIGATE

The Code of Criminal Procedure, 1973 CHAPTER XII INFORMATION TO THE POLICE AND THEIR POWERS TO INVESTIGATE [s 175] Power to summon persons.— (1) A police officer proceeding under Section 174 may, by order in writing, summon two or more persons as aforesaid for the purpose of the said investigation, and any other person who appears to be acquainted with the facts of the case and every person so summoned shall be bound to attend and to answer truly all questions other than questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture. (2) If the facts do not disclose a cognizable offence to which Section 170 applies, such persons shall not be required by the police officer to attend a Magistrate’s Court. [s 175.1] Changes.— Section 175 corresponds to old section 175. [s 175.2] Scope and application of section 175.— Cf section 160. It confers power on the police to summon witnesses at the inquest. The Magistrate cannot issue any process compelling any one to give evidence in police investigation [Jogendra, 24 C 320].

Section 175 should be read in conjunction with section 174. Enquiry under section 174 is permissible till inquest [Kishwar Jahan v State of WB, 2008 Cr LJ 1766 (1769) (Cal) : 2008 (1) Cal Cri LR 475 : 2008 (2) AICLR 669]. End of Document

[s 176] Inquiry by Magistrate into cause of death.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER XII INFORMATION TO THE POLICE AND THEIR POWERS TO INVESTIGATE

The Code of Criminal Procedure, 1973 CHAPTER XII INFORMATION TO THE POLICE AND THEIR POWERS TO INVESTIGATE [s 176] Inquiry by Magistrate into cause of death.— (1)

17[18[

* * * ] when the case is of the nature referred to in clause (i) or clause (ii) of sub-section (3) of section 174] the nearest Magistrate empowered to hold inquests shall, and in any other case mentioned in sub-section (1) of section 174, any Magistrate so empowered may hold an inquiry into the cause of death either instead of, or in addition to, the investigation held by the police officer; and if he does so, he shall have all the powers in conducting it which he would have in holding an inquiry into an offence.

19[(1-A)

Where,—

(a) any person dies or disappears, or (b) rape is alleged to have been committed on any woman, while such person or woman is in the custody of the police or in any other custody authorised by the Magistrate or the Court, under this Code in addition to the inquiry or investigation held by the police, an inquiry shall be held by the Judicial Magistrate or the Metropolitan Magistrate, as the case may be, within whose local jurisdiction the offence has been committed.] (2) The Magistrate holding such an inquiry shall record the evidence taken by him in connection therewith in any manner hereinafter prescribed according to the circumstances of the case. (3) Whenever such Magistrate considers it expedient to make an examination of the dead body of any person who has been already interred, in order to discover the cause of his death, the Magistrate may cause the body to be disinterred and examined. (4) Where an inquiry is to be held under this section, the Magistrate shall, wherever practicable, inform the relatives of the deceased whose names and addresses are known, and shall allow them to remain present at the inquiry. 20[(5) The Judicial Magistrate or the Metropolitan Magistrate or Executive Magistrate or police officer holding an inquiry or investigation, as the case may be, under sub-section (1-A) shall, within twentyfour hours of the death of a person, forward the body with a view to its being examined to the nearest Civil Surgeon or other qualified medical man appointed in this behalf by the State Government, unless it is not possible to do so for reasons to be recorded in writing.] Explanation.—In this section, the expression “relative” means parents, children, brothers, sisters and spouse. [s 176.1] Changes.—

Page 2 of 4 [s 176] Inquiry by Magistrate into cause of death.— Section 176 correspond to old section 176 with the following changes :

(1) Old sub-section (1) has been divided into sub-sections (1) and (2), and old sub-section (2) has been renumbered sub-section (3). (2) Sub-section (4) with Explanation has been newly added casting an obligation on the Magistrate to inform the relative of the deceased before the inquest is held. [s 176.1.1] CrPC (Amendment) Act, 2005 (25 of 2005).— In section 176 of the principal Act,—

(i)

in sub-section (1), the words “when any person dies while in the custody of the police or” shall be omitted;

(ii) after sub-section (1), a new sub-section (1A) shall be inserted. (iii) After sub-section (4), before the Explanation, a new sub-section (5) shall be inserted.

Notes on Clauses

Section 176 is being amended to provide that in the case of death or disappearance of a person, or rape of a woman while in the custody of the police, there shall be a mandatory judicial inquiry and in case of death, examination of the dead body shall be conducted within twenty four hours of death. (Notes on Clauses, Clause 18)

This amendment in the section has come into force w.e.f. 23 June 2006 vide Notification No. S.O. 923(E), dt. 21 June 2006.

The Legislature has introduced a new sub-section (1A) to section 176 of the Code vide the Amendment Act of 2005. Thus, post Amendment Act 25 of 2005, in respect of an inquiry into the cause of the death or disappearance of a person or rape while such person or woman was in custody of the police or in any other custody authorized by the magistrate or court, the power has now been conferred upon the Judicial Magistrate or Metropolitan Magistrate, within whose local jurisdiction the offence has been committed [see also R Kasthuri v State, 2015 (1) Mad LJ (Cr) 455 (Mad)]. [s 176.2] Scope and application of section 176.— It relates to inquiry by a magistrate empowered [see sections 174(4), 460(c)] in cases of suspicious death. In the cities of Calcutta and Bombay the inquest is ordinarily held by a coroner under the coroner’s Act. But, Presidency (metropolitan) Magistrate’s jurisdiction is not ousted because the coroner has held an inquiry and drawn up an inquisition report [Md Rajudin, 16 B 159; Jageshwar, 31 C 1]. Distinction between a coroner’s enquiry and an inquiry under the Code [Troylokanath, 3 C 752, 752]. In the case of death in police custody, inquest is obligatory and in other cases, it may be instead of or in addition to the investigation by the police. The section proceeds on the basis that inquiry into a suspicious death should not depend merely upon the opinion of the police, but there should be a further check [Laxminarayan, AIR 1928 B 390; P Rajangam v State of Madras, AIR 1959 Mad 294 : 1959 Cr LJ 856 : 1959 (1) Mad LJ 71 : 195 Mad LJ (Cri) 71]. If necessary, the Magistrate can cause the body to be disinterred [sub-section (3)] and so also a Coroner. No inquiry can be held where there is no corpse [Ghudo, AIR 1945 N 143]. Magistrate holding enquiry is not a Court within section 3 of

Page 3 of 4 [s 176] Inquiry by Magistrate into cause of death.— the Contempt of Courts Act, 1952 [Piara Singh v State, AIR 1958 Punj 141 : 1958 Cr LJ 673 : 60 Punj LR 112 : ILR (1958) Punj 745 ; Contra : Advocate General, AIR 1940 R 68].

Whenever police claims that it has killed a person in an encounter, enquiry by magistrate is mandatory [Hari Krishna Maheswari v Union of UP, 1997(1) Crimes 432 (All)].

A magisterial inquiry under section 176 of the Code must invariably be held in all cases of death which occur in the course of police firing and a report thereof must be sent to Judicial Magistrate having jurisdiction under section190 of the Code [see People’s Union for Civil Liberties v State of Maharashtra, (2014) 10 SCC 635 : 2015 Cr LJ 610 (SC) laying down detailed guidelines in this regard].

In the instant case, there was enough material and evidence and a clear conclusion in the report of the inquiry under section 176, Code of Criminal Procedure, 1973 that causes of death included illegal and unjustified beating of the deceased in violation of section 151 of the Code even as the deceased was suffering from some ailment and in need of proper medicines and medical care. The deceased was ill-treated in the police custody without any rhym or reason. It was held that the State was vicariously liable and was directed to pay Rs 40,000 which the State Government would be at liberty to recover from the police personnel concerned [Premilaben R Jaishwal v BM Jadeja, 2007 Cr LJ 4165 (4172) (Guj)]. [s 176.3] Inquest by Magistrate.— It is questionable how far an inquest report is admissible except under section 145, Evidence Act [Pandurang Tukia and Bhillia v State of Hyderabad, AIR 1955 SC 216 : 1955 Cr LJ 572 (SC)]. Mere recitals in the inquest report cannot by itself be regarded as substantive piece of evidence [Raghava Kurup v State of Kerala, AIR 1965 Ker 44 : 1965 (1) Cr LJ 173 ]. The form of an inquiry is directed more to elucidate the fact of a violent or unnatural death before there is any reasonable suspicion of the commission of an offence, and that when such grounds do exist, the inquiry comes under another portion of the Code [per Prinsep J, Troylokhanath, 3 C 742, 753]. Proceedings under section 176 are an “inquiry” within section 2(g) and a “judicial proceeding” as defined in section 2(i) [Laxminarayan, AIR 1928 B 390; Mg Chit, 41 Cr LJ 470]. Copies of evidence of witness examined at the inquest may be given [Venkataramana, AIR 1945 M 64].

An inquest cannot take the place of an inquiry under section 202 and should not be the basis of an order under section 203 [Surendra, 35 Cal WN 1032].

In a matter when death caused in an counter, Magistrate not completing inquiry within 2 and 1/2 years matter directed to National Human Rights Commission (NHRC) to have detailed inquiry and report to state [Atkuri Sammaiah v Station House Officers, 2002(1) East Cr C 257 : 2001 Cr LJ 3610 : 2001 (2) Andh LT 496 (AP)].

When enquiry for death in police encounter not completed for more than 2 and 1/2 years then matter referred to NHRC for conducting independent enquiry [Atkuri Sammaiah v SHO, Kotapally, 2001 Cr LJ 3610 : 2001 (2) Andh LT 496 : 2002 (1) East Cr C 257 (AP)]. [s 176.4] Inquiry under section 176(1A).— In Tmt R Kasthuri v State, the Madras High Court has held that (1) Any information relating to the death or disappearance of any person or rape of a woman while such person or woman was in the custody of the police or in any other custody authorized by a Magistrate or Court, shall be registered as a case under section154 of the Code. (2) Soon after the registration of the case, the Station House Officer shall forward the FIR to the jurisdictional Judicial Magistrate/ Metropolitan Magistrate. (3) The jurisdictional Magistrate shall thereafter hold an inquiry under section 176(1A) of the Code. (4) During such inquiry under section 176(1A) of the Code the Judicial Magistrate/Metropolitan Magistrate shall have power to record evidence on oath. (5) On completing the inquiry the Judicial Magistrate/ Metropolitan Magistrate shall draw a report and keep the statements of the witnesses, documents collected and the report drawn by him as part of case records. (6) The Judicial Magistrate/Metropolitan Magistrate shall furnish copies of the statements of the witnesses recorded during inquiry under section 176(1A) of the Code, the documents collected and the report drawn by him to the investigating police officer without delay. (7) The investigating police officer shall, without being hindered by the

Page 4 of 4 [s 176] Inquiry by Magistrate into cause of death.— inquiry by the Judicial Magistrate/Metropolitan Magistrate, conduct investigation under chapter XII of the Code thoroughly and submit a final report to the jurisdictional Magistrate/Court under section 173 of the Code [Tmt R Kasthuri v State, 2015 (1) Mad LJ (Cr) 455 (Mad)]. [s 176.5] Confession during inquest.— A Magistrate holding an inquest under section 176 even though not empowered under section 164 to record a confession can record a confession by any person about the crime. Such a confession is admissible [Re Ramaswami Reddiar, AIR 1953 Mad 138 : 1953 Cr LJ 315 : 1952 Mad WN (Cri) 176 : 1952 (2) Mad LJ 212; read on in Public Prosecutor v Shaik Ibrahim, AIR 1964 AP 548 : 1964 (2) Cr LJ 636 : 1964 (2) Andh WR 43 : 1964 Mad LJ (Cri) 415; See notes to section 163(2) ante, and section 164 ante]. [s 176.6] Revision.— Proceedings under the section are revisable under sections 397, 399, 401 [Laxminarayan, AIR 1928 B 390].

17

Subs. by the Criminal Law (Second Amendment) Act, 1983(46 of 1983), section 4 for the words “When any person dies while in the custody of the police”.

18

The words “When any person dies while in the custody of the police or” omitted by the Code of Criminal Procedure (Amendment) Act, 2005 (25 of 2005), section 18 (w.e.f. 23 June 2006 vide Notification No. S.O. 923(E), dt. 21 June 2006).

19

Ins. by the Code of Criminal Procedure (Amendment) Act, 2005 (25 of 2005), section 18 (w.e.f. 23 June 2006 vide Notification No. S.O. 923(E), dt. 21 June 2006).

20

Ins. by the Code of Criminal Procedure (Amendment) Act, 2005 (25 of 2005), section 18 (w.e.f. 23 June 2006 vide Notification No. SO 923(E), dt. 21 June 2006).

End of Document

[s 177] Ordinary place of inquiry and trial.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER XIII JURISDICTION OF THE CRIMINAL COURTS IN INQUIRIES AND TRIALS

The Code of Criminal Procedure, 1973 CHAPTER XIII JURISDICTION OF THE CRIMINAL COURTS IN INQUIRIES AND TRIALS [s 177] Ordinary place of inquiry and trial.— Every offence shall ordinarily be inquired into and tried by a Court within whose local jurisdiction it was committed. [s 177.1] Changes.— Section 177 corresponds to old section 177. [s 177.2] Scope and application of section 177.— Chapter XIII intended to enlarge as much as possible the ambit of the sites in which the trial of an offence might be held as to minimise as much as possible the inconvenience caused by a technical plea of want of territorial jurisdiction. Sections 178–184 (see now sections 178–185) concern more extended jurisdiction to courts than is covered by the ordinary rule in section 177 and section 188 encroaches further on that rule [Ramaswamy, 38 M 779, 782]. These sections embrace cases of conflict of inter-territorial jurisdiction and provide against an accused escaping guilt altogether [Bichitranand, 16 C 667]. Section 177 does not give exclusive jurisdiction to any Magistrate, nor does it say that the exclusion is only as contemplated in the sections following section 177. It does not take away the jurisdiction of any other Magistrate, if he could otherwise try a case under any other competent order, e.g., a special Magistrate appointed under section 14 (now sections 13 and 18) [Hari Das Mundhra v State, AIR 1959 All 82 : 1959 Cr LJ 113 ]. The question of territorial jurisdiction would not be examined closely at the initial stage, it being a complicated question would be decided by bilateral hearing [Motorola Incorporated v UOI, 2004 Cr LJ 1576 (Bom) : 2004 (1) Bom CR (Cri) 26 : 2003 All MR (Cr) 1903].

The accused has a right to raise issue relating to territorial jurisdiction even after putting appearance after issuance of process under section 204, Code of Criminal Procedure, 1973 [Martin Lottery Agencies Ltd v S Manaram, Editor, 2004 (4) Crimes 173 (Sikk) : 2005 Cr LJ 3146 ]. [s 177.3] The rule and the exceptions.— Section 177 simply says that ordinarily, every offence would be tried by a Court within whose local jurisdiction it was committed. It does not say that it would be tried by such Court except in the cases mentioned in sections 179–186 and 188 or in cases specially provided in any other law. It leaves the place of trial open. There is no reason why the provisions of sections 218 to 223 may not also provide exceptions to section 177 if they do permit the trial of a particular offence along with others in one Court [Purushotamdas Dalmia v State of WB, AIR 1961 SC 1589 : 1961 (2) Cr LJ 728 : 1962 (2) SCR 101 ]. See the new section 184 which has codified this view.

Page 2 of 7 [s 177] Ordinary place of inquiry and trial.—

Chapter XIII, Code of Criminal Procedure, 1973 deals with “Jurisdiction of the Criminal Courts in Inquiries and Trials”. While section 177, Code of Criminal Procedure, 1973 lays down the general rule for holding the trial, there are certain expectations to section 177, Code of Criminal Procedure, 1973. Section 184, Code of Criminal Procedure, 1973 is one of the exceptions [Banne Singh v State of Rajasthan, Criminal Appeal No. 1254/2008 decided on 15 January 2014 (Raj—DB)].

The informant had left her matrimonial home on account of alleged demand of dowry by her husband and inlaws. The FIR did not disclose allegation about demand of dowry by her thereafter. In other words, no demand of dowry was made at “B” nor is there any whisper with regard to any act by the petitioners constituting commission of offence at “B”. In the said backdrop the Court at “B” has no jurisdiction. [Harilal Agarwal v State of Orissa, 2006 Cr LJ 3809 (3811) (Ori)]. [s 177.4] Scheme.— See dearness in Law Commissioner Indian Report on Code of Criminal Procedure, 1973, 41st Report, vol 1 para 15.13. [s 177.5] Local element in crime.— Section 177 adopts the common law of England that crimes are local and justiciable only by the local Courts within whose jurisdiction they are committed [See Md Yusufuddin, 24 IA 137 : 25 C 20, 30; Gunananda, 29 Cal WN 432, 436 : AIR 1925 C 613; State v Dhulaji Bavaji, AIR 1963 Guj 234 : 1963 (2) Cr LJ 273 : (1962) 3 Guj LR 409; Bijoyanda Patnaik v KAA Brinnand, AIR 1970 Cal 110 : 1970 Cr LJ 332 ]. A foreigner is not excluded from the jurisdiction of the Court where an offence is committed by him, the principle of international law being that offences against the municipal laws of a sovereign state by whomsoever committed are punishable by its law [See Adams, 26 M 607, 617, FB citing Q v Ganz, LR 9 QBD 93, 100; Gokuldas, 35 Cr LJ 585; Md Ishaq, AIR 1952 Pu 110 ]. The criminal law applies to a foreigner although the act may not be an offence in his own country [Esop, 1836 (7) C & P 456]. His own State can only demand a fair trial under the lex fori [Adams, supra citing Taylor’s Inter Public Law]. If the crime is an act of omission, the place where the crime is committed is the place where the act which is omitted ought to have been done [R v Miller, 1848, 2 C & K 310 cited in Gunananda, 29 Cal WN 432, 436]. A criminal offence commenced within the jurisdiction of one court and completed within the jurisdiction of another court may be tried by either of the Courts [Mukhi Tirath, 38 Cr LJ 512].

The general rule of lex fori in section 177 is modified by the exceptions or alternatives in section 179–184 (see now sections 178–184) [Charu Ch, 44 C 595, 621, FB : A 1917 C 137; Bijoyananda Patnaik v KAA Brinnand, AIR 1970 Cal 110 : 1970 Cr LJ 332 ] and by special jurisdiction in particulars Acts (section 5) and by section 188. The Code therefore governs the trial of offences committed by—(1) all persons whether foreigners or Indian citizens in India; (2)(a) by Indian citizens whether on high seas or elsewhere, or (b) by foreigner on any ship or air-craft registered in India, (section 188; See section 4, Indian Penal Code).

A complaint under section 32(3) of Rajasthan Agricultural Produce Market Act can only be filed by Secretary of concerned market committee, therefore a complaint filed by Secretary of other market committee could not be taken by the magistrate and the same was liable to rejection. [Raj Kumar Rishabh Kumar v Krishi Upaj Mandi Samiti, 1999 Cr LJ 3078 (Raj)]. [s 177.6] Place of trial.— Area within which offence is committed is relevant for deciding place of trial [Mahi Pal v State of Haryana, 1997 Cr LJ 43 : 1996 (2) All CrLR 693 : 1996 (2) Rec Cr R 304 (P&H)]. At least a part of the cause of action must take place, within the jurisdiction of the Court where the proceeding has been instituted [Suba Sarkar v Purabi Sarkar, 2006 Cr LJ 664 (Gau) : 2006 (3) Crimes 35 ]. [s 177.7] Offences outside India.— A question may arise as to whether sections 179– 184 (now sections 178–183) apply to cases where the offence or part of it or one of the offences was committed outside India. Some cases under the Code before its

Page 3 of 7 [s 177] Ordinary place of inquiry and trial.— amendment in 1923 appear to have answered it negatively [see Abdul, 10 B 196; Maheswari, 18 Cal WN 1178; Bhuta, 20 Cal WN 62]. A possible view was that sections 178–184 (now sections 178–179) applied if a certificate could be had under section 188. A case, however, held that where jewels were entrusted by complainant to a person in India and the latter pledged them in a State beyond India, the loss in India was sufficient to give jurisdiction and sections 179–184 (now sections178-183) should not be read as subject to or limited by section 188 [Ramaswami, 38 M 779]. The words “notwithstanding of this chapter” inserted in the proviso to section 188 in 1923 were intended to negative this view and make it clear that section 188 controls the preceding sections and is not controlled by them [see Verghese, AIR 1947 M 352; Sona Mathur, 54 B 171]. Though the amendment itself does not seem to make clear the other question whether sections 179–184 (now sections 178–183) apply where an offence or a part of an offence or one of the offences was committed outside India, it has been held that in such cases a certificate (under the new Code previous sanction of the Central Government) under section 188 is essential to give jurisdiction [Fakhrulla, AIR 1935 M 326; Sreermamurthi, AIR 1935 M 189 and cases under section 188 post].

“Ordinarily”, indicate that the general rule in section 177 must be read subject to the special provisions of the succeeding section [Mg Ka, 8 Cr LJ 70; Govardhan, AIR 1928 B 140; Mohanlal, 30 Bom LR 1253; Ramnarayan, AIR 1937 B 186; T.N. Venkataraman v Pushkalammal, AIR 1950 Mad 823 : 1950 (2) Mad LJ 171 : 63 Mad LW 865]. If the offence is committed wholly outside jurisdiction a Magistrate cannot try [Govardhan supra; Bhagwatia, 3 P 417]. “Ordinarily” means except where otherwise provided in the Code. The State Legislature is competent to provide for trial of offences created by its statutes otherwise than is prescribed in section 177 [Narumal v State of Bombay, AIR 1960 SC 1329 : 1960 Cr LJ 1674 ]. [s 177.8] “Offence”.— Proceedings under chapter XD are not in respect of an “offence” and so section 182 [Hurbullubh, 3 Cal WN 148] or section 185 [Rudra, 15 Cr LJ 520] does not apply to proceedings under section 145. [s 177.9] Local jurisdiction.— The Court having jurisdiction to try the offence of conspiracy has also jurisdiction to try an offence constituted by the overt acts which are committed in pursuance of the conspiracy outside the limits of its local jurisdiction [Purushottamdas Dalmia v State of WB, AIR 1961 SC 1589 : 1961 (2) Cr LJ 728 (SC); (Jiban, AIR 1959 C 500, FB overruled; Bisseswar, AIR 1924 C 1034; Sachhidanandan, 52 M 991; Dani, AIR 1936 M 317 not approved); LN Mukherjee v State of Madras, AIR 1961 SC 1601 : 1962 (2) SCR 116 confirming Re LN Mukerjee, AIR 1961 Mad 126 : 1961 (1) Cr LJ 394 : 73 Mad LW 573 : 1960 (2) Mad LJ 340; See Keshari, 1951 AWR 678 ; Bachan Pande v State, AIR 1957 All 130 : 1957 Cr LJ 333 : 1956 All LJ 612 : 1956 All WR 640; Chittaranjan Das v State of WB, AIR 1963 Cal 191 : 1963 (1) Cr LJ 424 ]. Offence of cheating can be tried either at the place of origin of conspiracy or of completion [The State v Man Mohan Lal, AIR 1966 Ori 219 : 1966 Cr LJ 1301 : 32 Cut LT 751]. Jurisdiction is determined by the place of second marriage in bigamy or its abetment [Amir Chand, A 1924 L 732; TN Venkataraman v Pushkalammal, AIR 1950 Mad 823 : 1950 (2) Mad LJ 171 : 63 Mad LW 865; Vasantha Krishnaswami v MS Krishnaswami, AIR 1967 Mad 241 : 1967 Cr LJ 899 : 1966 Mad LW (Cri) 77 ; Thaku, 8 B 312; Bhagwatia, 3 P 417; Ramnarayan, 38 Cr LJ 769] and in offence under the Child Marriage Restraint Act [Matuk, AIR 1934 A 829]. As to place of publication for giving jurisdiction, a letter speaks continuously from the moment of its being posted until its receipt by the addressee [Chhotelal, 36 B 524, 532 citing Rogers, 1877 (3) QBD 28 ]. Defamation is triable either at the place of posting or of receipt of the offending letter [Krishnamurthy, AIR 1923 M 666; Kundanmal, AIR 1943 SC 196 : 45 Cr LJ 195; Appavoo, AIR 1947 M 396]. Krishnamurthy was dissented from in UM Aravamutha Iyengar v Rajarathna Mudaliar, AIR 1957 Mad 572 : 1957 Cr LJ 983 : 1957 Mad LJ (Cri) 304 on the ground that posting at a place cannot amount to publication when the letter is enclosed in an envelope. Defamation may be tried either at A, where the letter was posted or at B where there was actual publication [Pisupati Purnaiah Sidhanthi v Pisupati Satyanaryana Sidhanthi, AIR 1959 AP 657 : 1959 Cr LJ 1403 : 1959 (1) Andh WR 415; Burke, AIR 1924 M 340; Narain Singh v State of Delhi, AIR 1967 Punj 403 : 1967 Cr LJ 1182 : 69 Punj LR (D) 117]. Where the accused has neither published the defamatory matter nor circulated the same at place “G”, the Court at “G”, had no jurisdiction to try the case for offence under section 500, Indian Penal Code, 1860 [Martin Lottery Agencies Ltd v S Manoram, 2005 Cr LJ 3146 (Sikk) : 2004 (4) Crimes 173 ]. Where the printing and publication of defamatory books took place outside the jurisdiction of the court, it has no jurisdiction to try the complaint [Sunilakhya Chowdhury v HM Jadwet, AIR 1968 Cal 266 : 1968 Cr LJ 736 ] unless there is proof of conspiracy and the matters were disseminated within the jurisdiction [Banka Behari Singh v OM Thomas, AIR 1960 Ori 126 : 1960 Cr LJ 1116 : ILR (1959) Cut 685 ]. In offences under sections 497, 498, Indian Penal Code, 1860 the fact that the person seduced last lived in C does not give jurisdiction to the court there. It is triable where the offence is committed

Page 4 of 7 [s 177] Ordinary place of inquiry and trial.— [KK Ram v Prithwiraj Bucha, AIR 1948 Cal 7 : (1947) 48 Cr LJ 241 : 229 IC 115]. As to enticing and abducting, see note to section 181(2). Where one offence is triable at A and the other at B, the Court at B cannot try the former offence triable at A and the other at B, the court at B cannot try the former offence [Mohanlal, AIR 1928 B 475]. But when the offences are inter-related the trial can be held at either of the places [Rampratap v State, AIR 1970 Raj 250 : 1970 Cr LJ 1559 : 1969 Raj LW 534 ; (Mohanlal, supra, dissented]. As to contempt of Court, see Rajah, AIR 1934 M 423; Motilal, 45 C 169. As of offence on the High Seas, [see Rais Allee, 60 C 44; Philip, 41 B 667; Fernandez, AIR 1936 SC 3 ; Skh Abdool, 14 B 227]. There being no specific provision in Copyright Act with regard to place of trial of criminal offence it is to be determined in accordance with provisions of sections 177 to 188 [JN Bagga v All India Reporter Ltd, AIR 1969 Bom 302 : 1969 Cr LJ 1109 : 71 Bom LR 409 : 1969 Mah LJ 188 ].

When the entire cause of action or rather the entire bundle of facts contained in the complaint alleging cruelty for non-fulfillment of dowry demand narrated about the arousal of the cause of action to complainant at Bhopal, the Criminal Courts at Bhopal alone were held to have the territorial jurisdiction to adjudicate the matter as also to take cognizance of the matter and the Criminal Court at Guna would have no jurisdiction to entertain a complaint under section 4 or section 6 of the Dowry Prohibition Act, 1961. [Kirti Prakash Saxena v State of MP, 2010 Cr LJ 1351 (1355) (MP) : 2010 (2) MPHT 361].

Among the several acts one of the acts constituting offence of cruelty was committed in the local jurisdiction of Guhwa police and, as such, the police officer who took cognizance and also the police officer who had been investigating case cannot be said to have assumed jurisdiction illegally in taking cognizance and instituting the case. Moreover the petitioner is not entitled to raise the question of jurisdiction in view of an embargo put forth by section 156(2) stipulating therein that no proceeding of a police officer shall be challenged on the ground that has no territorial power to investigate [Amit Kumar Kesarwani v State of Jharkhand, 2010 Cr LJ 1200 (1203) (Jhar)].

It was admitted by daughter of complainant that she entrusted all her stridhan i.e. gift received by her during her marriage to the accused person at Calcutta. The entrustment of property was at Calcutta and the properties were also retained at Calcutta. It was held that Deghar Courts had no jurisdiction of try case of criminal breach of trust by husband [Prabhakar Jha v State of Jharkhand, 2010 Cr LJ 1547 (1549) (Jhar) : 2010 (1) AIR Jhar R 503].

Where matrimonial cruelty under section 498A pertaining to a period during which the wife was residing with his husband at N and also to a period when she was at D, of which her in-laws were residents, it was held that complaint was maintainable at D also [Rajendra Tukaram Ahirrao v State of Maharashtra, 2009 Cr LJ (NOC) 1134 (Bom)].

In the instant case, though the major portion of the allegations made in the complaint related to the demand of dowry were said to have been made at Hasan District and the alleged act of treatment and cruelty mated out to the complainant in the matrimonial house in Channarayatna. After a quarrel between the complainant on the one hand her husband and in-laws on the other in respect of their demand for dowry in cash, the accused took the complainant to Bangalore and left her to the house maternal uncle stating dowry of Rs 50,000 in cash is brought she should not come back. Thus the allegations made in the complaint prima facie make out that a part of cause of action arose in Bangalore within the jurisdiction of women’s police station. The Court at Bangalore had jurisdiction to try the case [Srinivasachar v State of Karnataka, 2010 Cr LJ 4749 (4752) (Kant)].

The cause or causes for making a complaint at a particular place must not be confused with the cause of action for filing a petition for quashing that complaint. As seen earlier, even if a fraction of the cause for filing a complaint has arisen in Rajasthan, an FIR could be lodged at Jaipur. And even assuming that such filing of the FIR in Rajasthan was mala fide, the cause of action for filing a petition for quashing such FIR could arise only in Rajasthan and not at all places where parts of causes for filing the FIR may have arisen and where the FIR

Page 5 of 7 [s 177] Ordinary place of inquiry and trial.— could have been lodged and investigated and where the ensuring criminal case could have been tried. In other words, the cause of action for filing a criminal complaint is different from the cause of action for quashing the complaint. The provisions of sections 177 and 178 of Code of Criminal Procedure, 1973 therefore, could not and ought not to be applied for determining the issue of territorial jurisdiction of the High Court, which has to only consider the provisions of Article 226 of the Constitution. The arguments that the petitioners are unnecessarily and with ulterior motives dragged to face the authorities in Rajasthan and that it is a calculated move to choose the legal forum in Rajasthan cannot be accepted so as to usurp territorial jurisdiction and undermine the authority and jurisdiction of another High Court. [Rahul Gupta v State of Rajasthan, 2009 Cr LJ 3154 (3157) (Guj) : (2009) 3 GLR 2148 ].

All allegations about treating the complainant with cruelty by the accused persons pertained to the period of her stay at in-laws place “B”. No part of cause action arose beyond local limits of jurisdiction of Court at place “B”. Thus the Court at place “B” has jurisdiction to try the offence [Anil Kumar Saxena v State of Chhattisgarh, 2006 Cr LJ (NOC) 293 (Chh) : 2006 (3) Crimes 487 ].

Offences committed at one place were alleged against a Bank and its officials under sections 120B, 409, 425 etc. of Penal Code. Complaint filed in Court at another place cannot be entertained [ANZ Grindlays Bank PIC v Shipping and Clearing (Agents) Pvt Ltd, (1992) Cr LJ 77 : 1992 (1) Rec CrLR 688 (Cal) (JN Hore, J.)].

Murder was committed at Bangalore and disappearance of evidence of murder with intention of screening offenders took place at Salem—Sessions Court at Bangalore or at Salem has jurisdiction to try murder case— Committal of case by CJM to Sessions Court at Coimbatore is illegal—Sessions Court at Coimbatore was directed to place records before the Court of Session, Salem for trial [The Principal Sessions Judge v Referring Officer, (1990) Cr LJ NOC 86 (Mad) (per Janarthanam J)].

Petitioner was carrying on business at B in UP—Agreement between petitioner and complainant was made at B for supply of goods to branch office of complainant B— Various invoices were issued by petitioner to branch office at B—Complaint against petitioner filed at New Delhi simply because head office of complainant was situated at that place was held to be without jurisdiction [Jai Prakash v Dinesh Dayal, (1991) Cr LJ 418 : 1990 (1) Crimes 546 : ILR (1989) 2 Del 571 (Del) (RL Gupta J)].

An offence under the Child Marriage Restraint Act, 1929 has to be tried at the place where the marriage was solemnised, and not at the place where subsequent to the marriage, the couple had been living as man and wife. If a complaint is filed. before a magistrate having no jurisdiction, the proceeding cannot be quashed. The Magistrate has to return the complaint for presentation to the proper court [Radha Krishan v Ellamma Reddy, (1984) Cr LJ 573 : 1983 Mad LW (Cri) 288 : 1994 Mad LJ (Cri) 113 : 1984 Hindu LR 289 (Mad)].

The cause or causes for making a complaint at a particular place must not be confused with the cause of action for filing a petition for quashing that complaint. As seen earlier, even if a fraction of the cause for filing a complaint has arisen in Rajasthan, an FIR could be lodged at Jaipur. And, even assuming that such filing of the FIR in Rajasthan was mala fide, the cause of action for filing a petition for quashing such FIR could arise only in Rajasthan and not at all places where parts of causes for filing the FIR may have arisen and where the FIR could have been lodged and investigated and where the ensuing criminal case could have been tried. In other words, the cause of action for filing a criminal complaint is different from the cause of action for quashing the complaint. The provisions of sections 177 and 178 of Code of Criminal Procedure, 1973 therefore, could not and ought not to be applied for determining the issue of territorial jurisdiction of the High Court, which has to only consider the provisions of Article 226 of the Constitution. The arguments that the petitioners are unnecessarily and with ulterior motives dragged to face the authorities in Rajasthan and that it is a calculated move to choose the legal forum in Rajasthan cannot be accepted so as to usurp territorial jurisdiction and undermine the authority and jurisdiction of another High Court [Rahul Gupta v State of Rajasthan, 2009 Cr LJ 3154 (3157) (Raj)].

Page 6 of 7 [s 177] Ordinary place of inquiry and trial.—

In the instant case, there are no allegations of any ill treatment at the place, where the parents of the complainant resided. The entire allegations pertained to the matrimonial home of the complainant. It was held that the Court where her parents resided had no jurisdiction to entertain complaints and, therefore, in spite of quashing the proceedings, it would be in the interest of justice to transfer the proceedings to the Court at the place of her matrimonial home. [Shekhar Shivdas Mahire v Sarikabai Shekhar Mahire, 2010 Cr LJ 3607 (3611) (Bom)].

The allegation of harassment and cruel treatment was after the marriage when the complainant started having at her in-laws house at “A”. It was not the case of the complainant that she was subjected to cruelty, or harassment at “1”. It was held that the trial Court at “1” was having no territorial jurisdiction to try the case and the order framing charge against the petitioners for the offence under section 498A, Indian Penal Code, 1860 would not be sustained. [Kumari Suman v State of Rajasthan, 2006 Cr LJ 4187 (4188) (Raj) : 2006 (2) CrLR (Raj) 1348 ].

A perusal of the said complaint would show that Respondent No. 2 has alleged three incidents, one that took place at Nagpur and the other two at Delhi in the jurisdiction of this Court. Respondent No. 2 has mentioned in her complaint that the petitioner had visited the school of her son Master Shivam at Delhi and had questioned his parentage from his teachers and also that he had visited her office at Delhi on 16 January 2004 and had tried to degrade her on that day in the eyes of her colleagues. The alleged visit of the petitioner to the school of the child Master Shivam as well as his visit to the office of Respondent No. 2 were both incidents of Delhi and, therefore, cause of action for filing of the complaint by Respondent No. 2 did not arise in the jurisdiction of Court at Nagpur. [Dharam Chand Khatter v State (NCT of Delhi), 2010 Cr LJ 4143 (4144) (Del)].

When in a case of criminal breach of trust and cheating, no part of cause of action arose in Patna, the Court at Patna had no jurisdiction to deal with the matter [Steel Authority of India Ltd v State of Bihar, 2006 Cr LJ (NOC) 562 (Pat) : 2006 (4) Pat LJR 106 ].

Where no part of action relating to offence had taken place at “A”, it was held that the order of quashing proceedings and directing complainant to file complaint before the court of competent jurisdiction would be held illegal [Jaswant Kaur v Gurdeep Kaur, 2007 Cr LJ 3914 (Ori)].

The facts stated in the complaint disclosed that the complainant left the place where she was residing with her husband and in laws and came to the city of Ganganagar, Rajasthan on the basis of the factual scenario disclosed by the complainant in the complaint, the inevitable conclusion was that no part of cause of action arose in Rajasthan and, therefore, the Magistrate at Rajasthan has no jurisdiction [Bhura Ram v State of Rajashtan, 2008 Cr LJ 3494 (3495) (SC) : AIR 2008 SC 2666 : 2008 AIR SCW 4449].

Where certain forged documents were filed in the High Court of Calcutta, it was held that the Metropolitan Magistrate, Calcutta had territorial jurisdiction to take cognizance of the complaint in respect of those documents. The fact that the documents were forged outside Calcutta or that the production of the documents was not voluntary but in response to the courts” direction was held to be immaterial [Shew Kishan Agarwalla v State, 2003 Cr LJ 1866 : 2003 (3) All CrLR 415 : 2003 (1) Cal HN 689 : 2003 (3) Rec Cr R 221 (Cal)].

Many a times it happens as discussed hereinabove that the offence comprises of several acts, each of such act being performed or committed at several distinct places. It is also possible that it remains uncertain in which of local areas the offence was committed. There is also possibility that an offence continues to be committed in more than one local areas. Considering these possibilities, section 178 of the Code allows the enquiry or trial of

Page 7 of 7 [s 177] Ordinary place of inquiry and trial.— such offences be held by the Court in any of such local areas. Section 179 of the Code stretches its scope further so as to allow the enquiry or trial to be held by a court within whose local jurisdiction either an act necessary to constitute an offence has been done or the consequence of such act has ensued when an act is an offence by reason of anything which has been done and of consequence which has ensued. [Cromption Greaves Ltd v Shivam Traders, 2010 Cr LJ 1227 (1232) (Bom) : (2009) 111 Bom LR 4669 : (2011) 2 Crimes 607 ].

In trial of offence of dishonour of cheque, jurisdiction has to be gathered form place where money was intended to be paid [Ahuja Nandkishore Dongre v State of Maharashtra, AIR 2007 NOC 95 : 2006 (6) AIR Bom R 201 (Bom) : 2007 Cr LJ 115; Rajiv Banga v L&T Finance Co Ltd, 2011 Cr LJ 1806 (Bom)].

Court will have jurisdiction to try an offence where part of the cause of action took place within its local jurisdiction [Khetmal Soni v State of Chhattisgarh, 2007 (1) Crimes 719 (Chhattisgarh) : 2007 (2) CGLJ 91 ]. [s 177.10] Trial in wrong place.— Section 177 should be read with section 462 and conviction will not be set aside merely because of trial in a wrong place unless it has caused a failure of justice [Mangal Das Raghav Ji Ruparel v State of Maharashtra, AIR 1966 SC 128 : 1966 Cr LJ 106 (SC); Nasiruddin Khan v State of Bihar, AIR 1973 SC 186 : 1973 Cr LJ 241 : (1973) 3 SCC 99 ; Achariya, AIR 1936 P 410; Ramammal, 36 M 387; Daraisamy, 30 M 94, Venkatesh, AIR 1967 My 44 ]. High Court may also rectify the error by transferring the case to the proper court without quashing proceedings [Mubarak, AIR 1925 O 490]. Commitment to wrong sessions division is a irregularity [Ram Dei, 18 A 350; Thaku, 8 B 312; see, however Ramammal, 36 M 387; Sheo Dayal, 21 Cr LJ 635].

Where after commitment the place where offence was committed ceased to be a part of India, it did not affect jurisdiction [Ram Naresh, 34 A 118 Ganga, 34 A 451]. So also, where during pendency of an appeal the territory was transferred [Mahabir, 33 A 578]. Similarly, jurisdiction is not affected if after cognizance by the Magistrate the place of occurrence was transferred to another district [Sayeruddin, AIR 1939 C 159]. If a question of jurisdiction is raised, the trial can be commenced only after deciding that on the basis of allegations made and the averments in the complaint or the charge as the case may be [Abhay Lalan v Yogendra Madhavlal, 1981 Cr LJ 1667 : 1981 Ker LT 702 (Ker); (State v Tavara Naika, AIR 1959 Mys 193 : 1959 Cr LJ 1004 : 1959 Mad LJ (Cri) 343; Ramnath Sardar v Rekharani Sardar, 1975 Cr LJ 1139 (Cal); State of MP v KP Ghiara, AIR 1957 SC 196 : 1957 Cr LJ 322 relied on)]. [s 177.11] Interview to media—Defamatory statement—Publication in new paper— Jurisdiction of Court.— In the case of an interview to press, though the act of giving interview takes place at one place, its consequences ensue in the places of circulation of the newspaper and hence a prosecution for such statement, if defamatory, can be launched in the Courts exercising jurisdiction over any of the places wherein such circulation is made. [Subhiksha Trading Services Ltd v Azim H Premji, 2011 Cr LJ 2769 (2777) (Mad)].

For the consequence of the alleged act of the respondent that ensued within the jurisdiction of the Court below, he can be tried in the Court below and the decision of the Court below that it does not have jurisdiction because the publisher was not made a party accused, is erroneous and legally unsustainable. [Subhiksha Trading Services Ltd v Azim H Premji, 2011 Cr LJ 2769 (2778) (Mad)]. [s 177.12] High Court’s power to alter jurisdiction.— Under section 407(1)(i) the High Court may order that an offence be inquired into or tried by any Court not empowered under sections 177–185 but in other respects competent to inquire into or try such offence.

End of Document

[s 178] Place of inquiry or trial.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER XIII JURISDICTION OF THE CRIMINAL COURTS IN INQUIRIES AND TRIALS

The Code of Criminal Procedure, 1973 CHAPTER XIII JURISDICTION OF THE CRIMINAL COURTS IN INQUIRIES AND TRIALS [s 178] Place of inquiry or trial.— (a) When it is uncertain in which of several local areas an offence was committed, or (b) where an offence is committed partly in one local area and partly in another, or (c) where an offence is a continuing one, and continues to be committed in more local areas than one, or (d) where it consists of several acts done in different local areas, it may be inquired into or tried by a Court having jurisdiction over any of such local areas. [s 178.1] Changes.— Section 178 corresponds to old section 182. The paras have been numbered (a) to (d). [s 178.2] Scope and application of section 178.— It is intended to provide against conflict of areas in order to prevent an accused person from getting off because of doubt as to what particular Magistrate has jurisdiction [Bichitranand, 16 C 490; Debendra, 45 C 490]. In the four contingencies mentioned in the section, the offence is triable by a Court having jurisdiction over any of the local areas. The section applies when it is uncertain whether a spot where an offence is committed is within one district or another [Punardeo, 25 C 858]. It does not apply to proceedings under section 156 [Harbullah, 3 Cal WN 148]. Section 178 is a specific provision and not a general principle of law, and is supplemental to the first clause of section 181(4). The type of uncertainty contemplated in this section is illustrated in this discussion. [State of MP v KP Ghiara, AIR 1957 SC 196 : 1957 Cr LJ 322 (SC), post]. To attract section178 it would be necessary for the prosecution to aver that the offence was committed in one or the other local area of which it was uncertain [State v Dhulaji Bavaji, AIR 1963 Guj 234 : 1963 (2) Cr LJ 273 : (1962) 3 Guj LR 409].

“Local area” means a local area to which the Code applies [e.g. province, sessions, district, sub-division etc) and not one in a foreign territory [Bichitranand, supra; Purnardeo, supra; Hiralal, 1945 Nag 130 : AIR 1946 N 128]. Where one offence against the accused falls within the jurisdiction of Gram Kutchery and the other within the jurisdiction of Criminal Court, both should be tried by the latter [Prayag PasivState, AIR 1958 Pat 585 : 1958 Cr LJ 1339 : 1958 BLJR 158 ]. A conspiracy and acts done in pursuance thereof would come within the scope of section 178 [V Govindrajalu v State of Mysore, AIR 1962 Mys 275 : 1962 (2) Cr LJ 765 : 1962 Mad LJ (Cri) 695].

Apart from section 178, a mere fact that proceedings were taken in a wrong place would not vitiate the trial unless it has occasioned a failure of justice (see section 462) [Mangaldas Raghav Ji Ruparel v State of Maharashtra, AIR 1966 SC 128 : 1966 Cr LJ (SC)]. [s 178.3] Uncertainty as to jurisdiction.—

Page 2 of 7 [s 178] Place of inquiry or trial.— Accused an adviser of a Company with head office at Nagpur, who was entrusted with the sale of a car, sold it in Bombay and misappropriated the money. He returned to Nagpur but the sale proceeds were not paid to the company. Venue of the offence being uncertain, trial at Nagpur was legal. In such cases the place of trial is ordinarily to be determined by the averments in the complaint or charge-sheet, unless the facts are positively disproved [State of MP v KP Ghiara, AIR 1957 SC 196 : 1957 Cr LJ 322 followed in Bijayanand Patnaik v KAA Brinnand, AIR 1970 Cal 110 : 1970 Cr LJ 332 ]. False information to a public servant (section 182, Indian Penal Code, 1860) in a letter posted in one place and delivered in another—Offence triable in either place [Naraindas, AIR 1936 C 105]; so also in regard to a defamatory letter sent by post [Krishnamurthi, AIR 1923 M 666; Nundanmal, 45 Cr LJ 105], of for cheating by ordering goods by letters posted at N to various firms in Bombay [Hormasji, AIR 1943 B 183]. Section applies when it is impossible to state exactly where the act or acts of embezzlement or misappropriation took place [Mahadeo, 32 A 397, 399; Faquir, 1945 ALJ 468 ]. Misappropriation by travelling salesmen of a Bombay firm where it is not possible to say exactly in which of the places he toured where the offence took place [D’Mello, AIR 1937 B 371]. Correspondence from and to Kanpur a centre of conspiracy gives jurisdiction [Manabendra, AIR 1933 A 498]. [s 178.4] Clause (b).— When a notice under section 63(1) of Partnership Act was forged at place D and sent to Register of Firm at P, as the act of forgery which started at D was completed at P by fraudulent use, Court at P can also exercise jurisdiction [Madanmohan Sharma v Renuka Sharma, 1981 Cr LJ 1301 : 1981 Pat LJR 303 : 1981 BLJR 509 (Pat)].

In FIR, it has been clearly stated that after the wife was forced to leave the matrimonial home and when she came to Patna, her father-in-law visited several times and put conditions of payment of cash and delivery of other articles as condition precedent for taking her to matrimonial home. The father-in-law also threatened that he would get his son married the second time in case the demand was not fulfilled. This clearly shows that the dowry, demand was made at Patna also and the accused can be tried by a court having jurisdiction over any of such local area [Ramji Singh v State of Bihar, 2006 Cr LJ 1597 (1598, 1599) (Pat); See also Kumara Chandrakar v State of Chhatishgarh, 3822 (Chhat)]. [s 178.5] Continuing offence.— As to what is meant by “continuing offence”, [see Bhiwandiwalla, AIR 1955 B 161; Rathanam, AIR 1958 M 155]. It includes travel within the territory, even deep into the heart of the country [Abdul Samad v State of UP, AIR 1965 All 158 : 1965 (1) Cr LJ 410 : 1963 All WR 571]. Offence (abetment of forgery) initiated at a place beyond India and completed within Indian territory is triable by Indian Court [Chhotalal, 14 Bom LR 147]. In certain circumstances, a conspiracy might be a continuing offence [Mahomed Ayoob Khuro v Emperor, AIR 1946 Sind 1 : (1946) 47 Cr LJ 455 : 222 IC 431]. Throwing stones at a passing train and rioting at short intervals is a continuing offence [Re Kista Pillai, AIR 1949 Mad 94 : (1949) 50 Cr LJ 106 : 1948 (2) Mad LJ 83 : 1948 Mad WN 523]. As to whether Kidnapping or abduction is a continuing offence, see notes to section 181(2), post.

In the instant case (for offences under sections 304, 298, 418, Indian Penal Code, 1860), the school management had taken school children from Dehradun to Goa for excursion tour. The anxiety of the parents started from Dehradun. The request of parents not to take their child was refused by management, which promised to take care of the safety of the child. The same part was repeated in Muzaffar Nagar when the tour was stopped there to give breakfast to the children. Whatever happened in the sea at Goa was a part of continuous chain of care and custody. It was held that part of cause of action could be said to have arisen at Muzaffar Nagar because request of complainant for learning his child behind was refused and therefore, the Magistrate at Muzaffar Nagar had jurisdiction to try the accused [Chaya Khanna v State of UP, 2006 Cr LJ 3769 (3777-78) (All) : 2006 (2) All CrC 766].

When no part of cause relating to the offence under section 498A, Indian Penal Code, 1860 arose within the jurisdiction of the Court at “A”, the Magistrate at Court, the Magistrate at “A” had no jurisdiction to try the case [T Balaji Rao v State of AP, 3799 (3806) (AP)].

Where an offence is a continuing offence or where a consequence ensuring of an act is also an offence, the courts where such consequence was ensued would also have jurisdiction to try the offence. Offence under

Page 3 of 7 [s 178] Place of inquiry or trial.— section 498A, Indian Penal Code, 1860 could be tried by any of the courts within whose local jurisdiction either the acts of cruelty were committed or such consequences tantamounting to an offence under section 498A had ensured [Amrendan Jyoti v State, 2007 (1) Crimes 323 (Chhatisgarh)]

In the instant case when the complainant left matrimonial home at Vadodara and started living in parental house at Gwalior, there was a specific allegation that the petitioner had come to her parental house and assaulted her. Hence clause (C) of section 178 was very well attracted and Gwalior Court had absolute jurisdiction to deal with the case. The plea that the alleged act of beating complainant at Gwalior was a solitary act and it would constitute different offence and the act of beating was not a continuous offence and hence no cause of action would arise at Gwalior was not accepted [Ajay Jagdish Sharma v State of Madhya Pradesh, 2010 Cr LJ 4181 (4185) (MP)].

In a criminal proceeding under section 498A, Indian Penal Code, 1860 for offences relating to cruelty by husband and his relatives, the specific allegation by wife about ill-treatment and cruelty was made at Ranchi. She was taken to her parental home at Gaya by her husband and threatened with dire consequences for nonfulfillment of dowry. It was held by the Supreme Court that in view of section 178 and section 179, the offence was a continuing one, having been committed in more local areas than one. Therefore clause (c) of section 178 is attracted and the court at Gaya has jurisdiction to proceed with the case [Sunita Kumari Kashyap v State of Bihar, AIR 2011 SC 1674 : (2011) 11 SCC 301 : 2011 Cr LJ 2667 (SC)]. [s 178.6] Offence under section 420 read with section 167, 120B, 379 of IPC.— In the instant case, the vehicle was brought at “V” and the defect was also noticed at “V”. The vehicle was insured at “V” and was also registered at RTO, at “V”. It was held that the offence was partly committed in one local area of “V” and the court at “V” had jurisdiction to try the matter and therefore the plea that the court at “B” had jurisdiction was cannot be accepted [Anand Mahindra v Saudam Singh, 2006 Cr LJ 4341 (4343) (MP) : 2006 (3) MPLJR 389]. [s 178.7] Kidnapping and rape.— Where a woman kidnapped from one place was raped at a different place, the offences of kidnapping and rape were to be tried separately by courts within whose jurisdiction the acts were committed [Jagannath v State of Haryana, 1983 Cr LJ 1574 : 1983 Chand Cr C 408 : 1983 Chand Cr C 408 (P&H)].

As to continuing offence[See Gajjan Singh v State of MP, 1965 SC 1921 : (1965) 2 Cr LJ 822 (SC)].

Offence of Defamation may be treated where the abetment was made or where it was published. [S Bangarappa v Ganesh Narayan Hegde, 1984 Cr LJ 1618 : 1984 (1) Kant LJ 495 (Kant); Subramaniam Swamy (Dr) v Prabhakar S Pai, 1984 Cr LJ 1329 : 1983 (2) Crimes 427 : 1983 (2) Bom CR 129 (Bom)].

Situation of offence committed partly in one area and partly in another is dealt with in [Mangaldas Raghav Ji Ruparel v State of Maharashtra, AIR 1966 SC 128 : (1966) Cr LJ 106 (SC)].

As to several acts [See Satwant Singh K v State of Punjab, AIR 1960 SC 266 : (1960) Cr LJ 410 (SC)]. [s 178.8] Offence under sections 498-A, 406, 223/34 of IPC.— The complainant herself left the house of the husband on account of alleged dowry demands by the husband and his relations. There was, thereafter not even a whisper of allegations about any demand of dowry or commission of any act constituting an offence much less at the place where the wife resided after leaving the house of husband. That being so the logic of section 178(C) of the Code relating to continuance of the offences cannot be applied [Y Abraham Ajith v Inspector of Police, Chennai, AIR 2004 SC 4286 : 2004 Cr LJ 4180 : (2004) 8 SCC 100 : 2004 (3) Crimes 227 (SC); Gurmeet Singh v State of MP, 2006 Cr LJ 1390 (MP) : 2006 (2) Crimes 188 ]. Offence under section 498A is a continuing offence and the Court at the place where wife is forced to take shelter has jurisdiction to try the offence [Bina Dey v Pratibha Dey, 2003 Cr LJ 3618 (3620) (Gau) : 2003 (3) Gau LR 16 : 2003 (3) Gau LT 659].

Page 4 of 7 [s 178] Place of inquiry or trial.— Where the complainant (wife) was married to the accused at one place, but the accused demanded dowry from another place. It was held that the Court at the place where the accused demanded dowry would have jurisdiction to try offence under section 498A, Indian Penal Code, 1860 [Indubala v State of UP, 2003 (4) Crimes 391 (392) (All); see also Samir Frances v State of Orissa, 2003 Cr LJ 2923 (Ori) : 2003 (3) Crimes 203 : 2003 (25) OCR 52 ].

In the instant case, all kinds of dowry torture were made at “T”. Therefore the concerned Court at “T” alone had jurisdiction. Simply because the complainant had been living in her parent’s house at “P”, the Court at “P” had no jurisdiction to decide culpability of accused [H Mohammad Ibrahim Kaleel v State, 2008 Cr LJ 3167 (Mad) (3169) : 2008 (2) Mad LJ (Cri) 394 : 2008 (1) Mad LW (Cri) 263 ; Sarvesh v State of MP, 2007 Cr LJ (NOC) 678 ; Mukesh Kumar Patwa v State of Jharkhand, 2008 Cr LJ (NOC) 823 : 2008 (2) AIR Jhar R; Dinesh Kumar Sharma v State of Rajasthan, 2007 Cr LJ (NOC) 194 (Raj); Mukhtiar Singh v State of Haryana, 2008 Cr LJ (NOC) 1257 (P&H)].

Where sufficient portion of cause of action arose at place where marriage was performed, Court at that place had territorial jurisdiction to try the offence [Amrendu Jyoti v State of Chhattisgarh, 2007 Cr LJ 1511 (1515) : 2007 (1) Crimes 323 (Chh); Victor Anxibum v State, 2008 Cr LJ 774 (776) : 2008 (1) Mad LW (Cri) 328 (Mad) : 2008 (1) Mad LJ (Cri) 236].

In the instant case, the accused-husband demanded a vehicle at the time of marriage at matrimonial place of complainant wife and repeated the demands on telephone from the father of the complainant. It was held that the offence being continuous merged into each other, the courts at matrimonial home and maternal home had jurisdiction to try the offence under section 498A [Babban Maurya v State of Bihar, 2007 Cr LJ 2529 (2530) : 2007 (5) AIR Bom R (NOC) 845 (Pat)].

Simply because the physical act of sending the complainant wife out of the house took place at “G”, it cannot be said that the Court at “G” where she had taken shelter at the house of her brother and has also suffered mental harassment had no jurisdiction. The Court at place “G” had also territorial jurisdiction to try the offence under section 498A, Indian Penal Code, 1860 [Issa Venkatesvarlu v State of AP, 2008 Cr LJ 4092 (4096) : 2008 (3) Andh LT (Cri) 63 (AP) : 2008 (2) Andh LD (Cr) 332].

In this case, the alleged acts of cruelty and breach of trust were committed at place “D” where the marriage was performed and Stridhan was demanded. The complainant was also tortured at place “D”. It was held that the Court at place “D” had jurisdiction to try the charges under sections 498A, 406, Indian Penal Code, 1860 and section 4 of the Dowry Prohibition Act, 1961 [Rajesh Kumar v State of Rajasthan, 2006 Cr LJ 2062 (2064) (Raj) : 2006 (3) Raj LW 1762 : 2006 (3) RCC Cri R 716].

Where the accused was alleged to have committed the offence under section 498A, Indian Penal Code, 1860 in the State of UP, the Courts at Delhi had no jurisdiction to try the offence [Srimati Afsana v State of Delhi, 2008 Cr LJ (NOC) 246 (Del) : 2007 All Ind Cas 534].

In this case, the accused persons came to the place “D”, the parents house of the complainant where she was forced to take shelter and threatened the complainant and his family members to destroy and kill them. The offence under section 498A being a continuous offence, the Court at the place “D” had territorial jurisdiction to try the said offence [Ranvijay Prasad Deo v State of Jharkhand, 2007 Cr LJ 3553 (3556) : 2007 (2) JLJR 193 ].

In an Allahabad case, it has been held that offence under section 498A is not continuing offence and, therefore, the court at the place where no dowry demand was made nor any harassment was caused, had no territorial jurisdiction to try the charge under section 498A, Indian Penal Code, 1860 [Sarojini Arawatigi v State of UP, 2008 Cr LJ 126 (128, 129) (All) : 2007 (6) All LJ 274 : 2007 (59) All Cri C 548].

Page 5 of 7 [s 178] Place of inquiry or trial.— The offence under section 498A, Indian Penal Code, 1860 cannot be held to be continuing one only because the complaint was forced to leave her matrimonial home [Manish Ratan v State of MP, 2007 (1) SCC (Cri) 2134 : (2007) 1 SCC 262 ].

Where the offence under section 498A was committed partly in one area and partly in another, the Court at both the places had territorial jurisdiction to try the offence [Kumari Chandrakar v State of Chhattisgarh, 2006 Cr LJ 3822 (3824) (Chhat)].

Where the marriage was performed and demand of dowry was made at place H and the attempt to settle the dispute was made at H, the Court at H was held to have territorial jurisdiction to try the charge for offence under sections 406 and 498A, Indian Penal Code, 1860 and section 4 of the Dowry Prohibition Act, 1961 [Hemanta Mohan v State of Orissa, 2008 Cr LJ (NOC) 507 (Orissa) : 2008 (39) OCR 366 ].

In a case where sufficient cause of action had taken place at Chennai where marriage was performed, the contention that no cause of action had arisen at Chennai would not be countenanced [Victor Auxilium v State, 2008 Cr LJ 774 (776) : 2008 (1) Mad LW (Cri) 328 (Mad) : 2008 (1) Mad LJ (Cri) 236].

In a case where the FIR has been lodged at place “S” where offence was partly committed, the IO may forward the case to place “D” where also offence was partly committed for a variety of reasons for example where the main reason was committed, where the witnesses and evidence are readily available for more effective investigation of the case [Mahendra Kumar Narindra v State, 2005 (1) Crimes 1 (Del) : 2005 Cr LJ (NOC) 88 : (2004) 115 DLT 355 ]. [s 178.9] Bigamy.— The place where the second marriage is formed, the Court of that place, would have territorial jurisdiction, to try the charge of bigamy under section 494, Indian Penal Code, 1860. The Court at the place where the complainant wife was residing at present had no jurisdiction [S Karan Singh Sodhi v Jatender Jeet Kour, 2007 Cr LJ 2588 (2589) : 2007 (3) Crimes 495 (J&K)]. [s 178.10] Uncertainty.— For uncertainty as to area [See State of MP v KP Ghiara, AIR 1957 SC 196 : (1957) Cr LJ 322 ].

Where deception was practised and inducement was made at place “B”, the court at place “B” has jurisdiction to take cognizance of offence and to try the case. [RMohandas v M Jayarajan, 2001 Cr LJ 3853 : 2001 (2) Ker LT 748 : 2001 Mad LJ (Cri) 939 (Ker)]. [s 178.11] Cruelty.— Wife was sent back by the husband to her father’s house after maltreating her for dowry. Wife fell ill after her return to the father’s house, owing to mental shock caused by cruelty of the husband and his relatives. The Court within whose jurisdiction wife resided with her father had jurisdiction to try the offence, as the offence was partly committed outside the Court’s jurisdiction, when she was maltreated and continued to be committed within the Court’s jurisdiction where she had been left with her father. One series of acts so connected together as to form same transaction can be tried together. Demand of dowry, and sending the wife back to her parents and not calling her back formed one transaction. Court competent to try any of offences can try all the offences [Vijai Ratan Sharma v State of UP, (1988) Cr LJ 1581 : 1988 (2) Crimes 212 : 1988 (1) DMC 419 : (1988) 14 All LR 324 (All)].

In a Delhi case, the spouses were living at their matrimonial home in Himachal Pradesh (District Kangra). Wife left the matrimonial home and came to reside in Delhi. Held alleged acts of cruelty committed in Himachal Pradesh cannot be tried in Delhi. It is not a continuing offence. [Mohan Lal v State, 2000 Cr LJ 3762 : 1999 (4) Crimes 428 : (1999) 79 DLT 758 (Del); see also Sanjeev Rai v State of WB, 2011 Cr LJ 1960 (Cal)]. [s 178.12] Cruelty to wife.—

Page 6 of 7 [s 178] Place of inquiry or trial.— The wife was allegedly ill-treated by her husband at her matrimonial place at “H”. She came down to her father’s house as she was denied medication and the husband said that the child in the womb was not his child. All the accused persons kicked her and severely assaulted her. A child was born in the hospital but seeing the child they made vulgar remarks and the husband paid a visit to complainant’s father’s house at “A” and told the complainant that the child did not match his face and she carried the sin of some other person. Held, such a single averment which does not introduce a new fact could hardly give jurisdiction to Magistrate at “A”. The base remark was a repetition of what the husband earlier stated in her matrimonial home. The Magistrate at “A” had no jurisdiction to try the offence under section 498, Indian Penal Code, 1860. The Court at “H” where cruelty was perpetrated had jurisdiction to try complaint [Sankar Prasad Roy Chowdhary v Mitali Roy Chowdhary, 2010 Cr LJ 981 (982) (Cal)]. [s 178.13] Territorial jurisdiction.— On a question of place of trial, in a case where single and combined search and seizer operations were undertaken simultaneously at Bhopal and Aurangabad for the same purpose, the Apex Court held that the alleged offences involved can be tried at both the aforementioned places. [Babita Lila v UOI, AIR 2016 SC 4160 : 2017 (1) Mad LJ (Cr) 456].

The Court at the place from where the smuggled goods passed through, has the jurisdiction to try the accused [Harbans Lal v State of Haryana, 1998 (6) Scale 181 (2) : 1998 (9) SLT 354 ].

The injuries are alleged to have been inflicted to the victim by her husband in the evening of 30 May 2008 at Bangalore and when the local police at Bangalore did not register her case against Applicant No. 3, then the victim came to Delhi by air and thereafter she came to Moradabad on 31 May 2008 and got her injuries medically examined by the doctor at District Hospital, Moradabad on the same day. The victim then moved an application to SSPT, Moradabad for registration of a case against the applicants on 2 June 2009 but the same was registered after delay of 10 days and thus there was no negligence on the part of the victim in lodging of the FIR.

The opposite party No. 2 now started to live at Moradabad with her parents; she had been caused continuous mental and physical cruelty. She also made allegations against the applicants that they kept her belongings and valuable documents in their custody causing continuous cruelty and harassment to her at Moradabad thus the Courts of Moradabad would have full jurisdiction for taking cognizance on the charge-sheet and the police of PS Mahila Thana, Moradabad would have jurisdiction to investigate the case, the investigating officer also recorded the statements of the landlord of the victim at Bangalore as well as neighbouring persons and on the basis of the evidence the investigating officer came to the conclusion that prima facie offences were made out against the applicants and then charge-sheet was submitted against them [Gauri Shankar Gupta v State of UP, 2010 Cr LJ 2355 (2360) (All) : (2011) I DMC 772]. [s 178.14] Territorial jurisdiction—Continuing offence.— Where a continuing offence of mal-treatment and humiliation meted out in more than one local areas then such offence could be tried by Magistrate of either of places [Sujata Mukerjee v Prashant Kr Mukerjee, AIR 1997 (SC) 2465 : 1997 Cr LJ 2985 : 1997(5) SCC 30 (SC)].

In this case the offence was continuing one and the episode at Gaya was only a consequence of continuing offence of harassment of ill-treatment meted out to the complainant, clause (c) of section 178 was attracted Court at Gaya had jurisdiction to proceed with the case [Sunita Kumari v Kashyap v State of Bihar, 2011 Cr LJ 2667 (2671) (SC)].

Where the wife was compelled to leave her matrimonial home and go to her parent’s home (Suratgarh) after which the demand for dowry continued, it was held to be a clear case of continuing offence and that CJM, Suratgarh had territorial jurisdiction to try the case [Jagdish v State, 1998 Cr LJ 554 : 1997 CrLR 729 : 1998 (1) Hindu LR 134 (Raj)]. [s 178.15] Prevention of Corruption Act.—

Page 7 of 7 [s 178] Place of inquiry or trial.— Application of the provisions of section 178, Code of Criminal Procedure, 1973 is not barred by the provisions of Prevention of Corruption Act [VK Puri v CBI, 2007 Cr LJ 2929 (2933) (SC) : 2007 (3) SCC (Cr) 57 : 2007 (3) MPHT 54]. [s 178.16] Complaint—Dishonour of cheque.—

(i)

An offence under section 138 of the Negotiable Instruments Act, 1881 is committed no sooner a cheque drawn by the accused on an account being maintained by him in a bank for discharge of debt/ liability is returned unpaid for insufficiency of funds or for the reason that the amount exceeds the arrangement made with the bank.

(ii) Cognizance of any such offence is however forbidden under section142 of the Act except upon a complaint in writing made by the payee or holder of the cheque in due course within a period of one month from the date the cause of action accrues to such payee or holder under clause (c) of proviso to section 138. (iii) The cause of action to file a complaint accrues to a complainant/payee/holder of a cheque in due course if

(a) the dishonoured cheque is presented to the drawee bank within a period of six months from the date of its issue. (b) If the complainant has demanded payment of cheque amount with in thirty days of receipt of information by him from the bank regarding the dishonour of the cheque and (c) If the drawer has failed to pay the cheque amount within fifteen days of receipt of such notice.

(iv) The facts constituting cause of action donot constitute the ingredients of the offence under section 138 of the Act. (v) The proviso to section 138 simply postpones/defers institution of criminal proceedings and taking of cognizance by the Court till such time cause of action interms of clause(c) of proviso accrues to the complainant. (vi) Once the cause of action accrues to the complainant, the jurisdiction of the Court to try the case will be determined by reference to the place where the cheque is dishonoured. (vii) The general rule stipulated under section 177 of the Code of Criminal Procedure applies to cases under section 138 of the Negotiable Instruments Act. Prosecution in such cases can, therefore, be launched against the drawer of the cheque only before the Court within whose jurisdiction the dishonour takes place except insituations where the offence of dishonour of the cheque punishable under section 138 is committed along with other offences in a single transaction within the meaning of section 220(1) read with section 184 of the Code of Criminal Procedure or is covered by the provisions of section 182(1) read with sections 184 and 220 thereof [Dashrath Rupsingh Rathod v State of Maharashtra, 2014 (9) SCC 129 : 2014 Cr LJ 4350 : AIR 2014 SC 3519 ]. Pursuant to this Judgment Government has introduced the Negotiable Instruments Act (Amendment) Ordinance, 2015.

AT-PAR cheque.—By issuing cheques payable at all branches, the drawer of the cheques gives an option to the banker of payee to get the cheques cleared from the nearest available branch of bank of the drawer [Ramanbhai Patel v State, 2014 (3) KHC 847 (Bom)]. End of Document

[s 179] Offence triable where act is done or consequence ensues.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER XIII JURISDICTION OF THE CRIMINAL COURTS IN INQUIRIES AND TRIALS

The Code of Criminal Procedure, 1973 CHAPTER XIII JURISDICTION OF THE CRIMINAL COURTS IN INQUIRIES AND TRIALS [s 179] Offence triable where act is done or consequence ensues.— When an act is an offence by reason of anything which has been done and of a consequence which has ensued, the offence may be inquired into or tried by a Court within whose local jurisdiction such thing has been done or such consequence has ensued. [s 179.1] Changes.— Section 179 corresponds to old section 179 with some verbal changes. The words “an act is an offence” have been substituted for “a person is accused of an offence” and the illustrations have been omitted. [s 179.2] Scope and application of section 179.— Sections 178, 179 and 180 are not exceptions to the general rule in section 177 as to territorial jurisdiction. Rules in the Code of Criminal Procedure, 1973 as to territorial jurisdiction are not excluded by section 7(2) of the Criminal Law Amendment Act, 1952 [Banwarilal Jhunjhuwalla v UOI, AIR 1959 Ker 311 : 1959 Cr LJ 1172 : 1958 Ker LT 1079 (2) : ILR (1958) Ker 763 ]. It applies to offences which are not complete until a specified consequences has happened. The words “a consequence which has ensued” obviously mean “by reason of any consequence”, i.e., the consequence must be the necessary ingredient of the offence [see Kashiram, AIR 1934 A 499, FB; Jiwandas, 55 B 59 : 33 Cr LJ 331, FB; Abdul Karim, AIR 1929 P 640 : 30 Cr LJ 765; Dewan, AIR 1936 N 55; Mukhi Tirath, AIR 937 SC 68, FB]. The section contemplates (i) an act (or illegal omission) and (ii) a consequence that has ensued from such act which is a part and parcel of the offence. The offender is not liable for the act itself, but the act coupled with the consequence constitutes the offence or a part of it. Such offence can under section 179 be tried where the act has been done or where the consequence has ensued. But where the act is a complete offence irrespective of any consequence which has ensued, section 179 does not apply and the place where the act was committed determines the jurisdiction. Thus, loss itself is not a necessary ingredient of criminal breach of trust. The offence is complete as soon as there is any misappropriation apart from consequence. It is therefore triable by the Court within whose jurisdiction the offence was committed or any part of the property was received [Mukhi Tirath, supra; Kashiram, supra; Jiwandas, AIR 1930 B 490, FB : 32 Cr LJ 331; Ali Md., AIR 1941 R 164; See notes to section 181(4) post]. Section 179 applies to those offences which by their very definition consist of an act and its consequence, for example culpable homicide but not criminal breach of trust [Laxman Shri Krishna v Dayabhai Ramchandra, AIR 1948 Nag 80 : (1989) 49 Cr LJ 121 : ILR (1947) Nag 378 : 1947 Nag LJ 363 ; Daityari, AIR 1942 C 575]. The consequence must form part of the offence. The act and consequence together must constitute the offence [State v Dhulaji Bavaji, AIR 1963 Guj 234 : 1963 (2) Cr LJ 273 : (1962) 3 Guj LR 409].

The Court within whose jurisdiction consequence has ensured has jurisdiction to try offence. [State of MP v Suresh Kaushal, 2001 AIR SCW 4587 : 2002 Cr LJ 217 : 2001 (3) Crimes 314 (SC)].

Page 2 of 5 [s 179] Offence triable where act is done or consequence ensues.—

Where the accused husband on phone demanded money and also extended threats to wife and her parents and the consequences ensued at the place where the wife was residing with her parents, the Court at that place has jurisdiction to try the case [State of MP v Suresh Kaushal, 2002 Cr LJ 217 : (2003) 11 SCC 126 : 2001 (3) Crimes 314 ; Amrendra Jyoti v State of Chhattisgarh, 2007 Cr LJ 1511 (1515) : 2007 (1) Crimes 323 (Chhat)].

When the offences though separate and committed in different places but in course of same transaction then accused can be charged and tried together at either of places [Royal Consultants Pvt Ltd, Bombay v Chief Enforcement Officer, Madras, 2001 Cr LJ 2464 : 2001 Mad LJ (Cri) 639 : 2001 (4) Cur Cr R 284 (Mad)]. [s 179.3] Conjunction “and” in Section 179 before expression “consequence” which has ensued.— The conjunction “and” used in the section between the expression “when an act is an offence by reason of anything which has been done” and the expression “of a consequence which has ensued” suggests that the act contemplated here becomes of an offence on account of cumulative effect of the things done and the consequences ensued. Therefore, it is not necessary to prove that the things done must themselves be offences under any of the provisions of the Indian Penal Code, 1860. [Parashuram v State, 2006 Cr LJ 3738 (3740) (Kant) : 2006 (6) Kant LJ 310 ]. [s 179.4] Acts outside India.— A foreigner at Karachi by representation to the complainant at Bombay through letters, telegrams etc. induced the latter to part with a large sum of money.—Held, that the ingredients for the offence of cheating (section 420, Indian Penal Code, 1860) took place in Bombay though the accused was not corporally present in India and he could be tried for it in Bombay [Mobarik Ali Ahmed v State of Bombay, AIR 1957 SC 857 : 1957 Cr LJ 1346 : 1958 SCR 328 ]. A Court is competent to try all offences committed in pursuance of a conspiracy even though any or all the other offences were not committed within its territorial jurisdiction [Banwarilal Jhunjhunwala v UOI, AIR 1963 SC 1620 : 1963 (2) Cr LJ 529 (SC)]. Illegal prize competition conducted at place X in India for people at Y a place out of India is triable at X [Mahesh Chandra Gupta v State, AIR 1964 All 572 : 1964 (2) Cr LJ 632 : 1964 All LJ 581].

See also comment in section 177. Sections 178 and 179 are not mutually exclusive. They have a cumulative effect and it is not correct to say that section 179 either controls or is controlled by section 181 (4) [Kashiram, 56 A 1047 FB : AIR 1934 A 499]. [s 179.5] Defamation.— The posting of the defamatory letter being publication, in cases where the letter reaches its destination, the offence itself is completed with the posting of the letter and gives jurisdiction to the Court where the letter is posted and the consequences which consisted in gaining publicity at the opening of the letter at the other end and also gives jurisdiction where the addressee resides. Therefore, in a defamation case, the venue of trial could also be at the place where the letter was received and read [Rekhabai v Dattatraya, (1986) Cr LJ 1997 : 1986 Mah LJ 596 (Bom)].

In a case of defamation both courts at the place where the defamation statement is made and also at the place where the newspaper in which defamation statement is published is circulated and read [Dilip Kumar Hazarika v Nalin Ch Buragohain, 2002 Cr LJ 1608 (Gau) : 2005 Cr LJ 2324 : 2005 All LJ 1224; Ashok Singhal v State of UP, 2005 (2) Crimes 7 (All) : 2005 Cr LJ 2324 : 2005 All LJ 1224]. [s 179.6] “A consequence which has ensued”.— As stated earlier the consequences must be an essential ingredient of the offence, something which forms part and parcel of it or completes the offence; not something without which the offence is already completed. Though the principle is fairly clear, whether loss is a necessary ingredient of the offence of criminal misappropriation has been the subject of conflicting decisions and the question has been answered negatively on the basis that the “consequence” must be an essential part and parcel of the offence charged [see Mukhi

Page 3 of 5 [s 179] Offence triable where act is done or consequence ensues.— Tirath, AIR 1937 SC 68 FB; Jiwandas, 55 B 59, FB; Kashiram, 56A 1047, FB; Md Abdul, AIR 1938 A 632; Simhachalam, 44 C 912; Daityari, A 1942 C 575; Debendra Nath Sen v Rajendra Chandra Roy, AIR 1955 Cal 498 : 1955 Cr LJ 1257 : 59 Cal WN 516; Paulde Flonder, 59 C 92; Gunanandan, 29 Cal WN 432; Srrerama, AIR 1935 M 189; Mohidin, AIR 1923 M 50; Abdul Karim, AIR 1929 P 640; Rambilas, 38 C 639; Laxman Shri Krishna v Dayabhai Ramachandra, AIR 1948 Nag 80 : (1948) 49 Cr LJ 121 : 1947 Nag LJ 363 ; Banerjee, AIR 1924 N 253; Dewan, AIR 1936 N 55; Nadar, AIR 1923 L 487; Mahtab, 1924 L 663; Ahmad Ebrahim, AIR 1923 R 209; Ali Md, AIR 1931 R 164] and also affirmatively [Abdul Latif, 26 Cal WN 175; Ramaswami, 38 M 779; Rich, 52 A 849]. The negative is the more accepted view and predominates in later decisions.

The reasonable view would appear to be that the consequences must form an integral part of the offence and not a mere consequence arising from it. In other words the consequence must be such a fact as has to be proved to establish, the offence. If the offence is complete in itself by reason of the act being done and the consequence is a mere result of it which was not necessary for the completion of the offence, then section 179 would not apply [see Kashiram, AIR 1934 A 499, FB; Ibarat Husain v State, AIR 1955 All 363 : 1955 Cr LJ 897 ; M.H. Alexander v Claira Alexander, AIR 1959 All 67 : 1959 Cr LJ 14 : 1959 All WR 479 : 1959 All Cr R 397; Banka Behari Singh v State, AIR 1960 Ori 126 : 1960 Cr LJ 1116 : ILR (1959) Cut 685 ; Ganga Prasad Jaiswal v Chhotelal Jain, AIR 1963 MP 128 : 1963 (1) Cr LJ 445 : 1963 Jab LJ 170 ]. As observed in a case, primary consequence should be considered in determining jurisdiction and not any secondary consequence. If the primary consequence completes the offence, the mere fact that there is a more remote consequence will not make section 179 applicable. It applies only to cases where the consequence necessary to constitute the offence ensues in a place other than that in which the act is done [Krishnamachari, 39 M 579]. The test is whether the offence could have been prosecuted and punished for the offence charged even if the alleged consequence had not ensued. If the answer is in the affirmative, section 179 does not apply [MH Alexander v Claira Alexander, AIR 1959 All 67 : 1959 Cr LJ 14 : 1959 All WR 479 : 1959 All Cr R 397].

In view of legal provision of sections 179 and 180, Code of Criminal Procedure, 1973, the CJM of Varanasi was having jurisdiction to entertain such complaint and pass appropriate order thereon because the forged sale deed executed in Calcutta was used in District Varanasi in mutation proceedings [Om Prakash Singh v State of UP, 2011 Cr LJ 210 (212) (All) : (2011) 2 ACR 1293 : (2011) 3 Crimes 67 ]. [s 179.7] Offence under Drugs and Cosmetics Act, 1940.— In the instant case, the petitioner company was carrying on the manufacturing activities at Indore. It supplied the sub-standard drug to the Veterinary Department and DD Veterinary received the same and stored in his office for purpose of its use in Veterinary hospitals in the District. That being so, the DD, Veterinary, could not be a seller and storage of the drug in his office could not be held to be for the purpose of sale. The DD could not be said to have committed the said offence so as to arraign him as co-accused along with the accused. The petitioner company committed the said offence at Indore and the consequence of the said offence ensued in District of Dharwad. By virtue of sections 179 and 180, Code of Criminal Procedure, 1973 prosecution could be launched either at Indore or at Dharwad. [Alpha Laboratories Ltd v State, 2011 Cr LJ 2692 (2700, 2701) (Kant)]. [s 179.8] Misappropriation of fund and criminal breach of trust.— In the instant case, the indent was filed by the accused on behalf of the complainants company for the purpose of allotment of rakes in UP for delivery of goods. Accused persons collected the indent money from the railway authorities by producing forged authorisation letters and by such way misappropriated the fund. The complainant avoided the jurisdiction and filed the application under section 156(3) followed by FIR in Kolkata where no offence was allegedly committed. It was held that mere submission of “accounted for” in Kolkata could not give any jurisdiction therein and FIR was directed to be transferred to UP [Hanuman Prasad Ojha v State of WB, 2006 Cr LJ 2597 (2601) (All) : 2006 (3) All LJ 505 : (2006) 55 All CrC 458]. [s 179.9] Offence of cheating.— Where the misrepresentation by the accused was at S and the consequence was at L, the offence of cheating could have been tried either at L or at S. Consequently an abettor of the offence could also have been tried either at L or at S [Satwant Singh v State of Punjab, AIR 1960 SC 266 : 1960 Cr LJ 410 : 1960 (2) SCR 89 (SC)]. Consignments of tea were sent to Howrah but chests discovered at Monghyr contained paddy husks— Monghyr Court has no jurisdiction to try offence of cheating [State v Chuni Lal Begani, AIR 1965 Pat 103 : 1965 (1) Cr LJ 327 ].

Page 4 of 5 [s 179] Offence triable where act is done or consequence ensues.— [s 179.10] Offence under Negotiable Instruments Act.— Where in case under Negotiable Instruments Act, 1881 no part of the transaction took place at the place of residence of the complainant, mere fact of residence of complainant, would not confer jurisdiction on the court at place of residence of complainant [PM Philipose v PC Chandy, 2010 Cr LJ (NOC) 457 (Ker)].

Going by the scheme of the provisions in chapter XIII of the Code of Criminal Procedure regarding jurisdiction of Criminal Courts, it can very well be seen that the place of commission of the offence is the place where ordinarily enquiry or trial in respect of the said offence can be held. For numerous time, it happens as discussed hereinabove that the offence comprises of several acts, each of such act being performed or committed at several distinct places. It is also possible that it remains uncertain in which of local areas the offence was committed. There is also possibility that an offence continues to be committed in more than one local areas. Considering these possibilities, section 178 of the Code allows the enquiry or trial of such offences be held by the Court in any of such local areas. Section 179 of the Code stretches its scope further so as to allow the enquiry or trial to be held by a Court within whose local jurisdiction either an act necessary to constitute an offence has been done or the consequence of such act has ensued when an act is an offence by reason of anything which has been done and of consequence which has ensued [Crompton Greaves Ltd v Shivam Traders, 2010 Cr LJ 1227 (1232) (Bom) : 2010 All MR (Cri) 835 : 2010 (1) Bom CR (Cri) 104 ]. [s 179.11] Offences within the section.— In the petition filed by the accused, there was no dispute raised with regard to the execution of the two documents in question at Bombay. Therefore, since the documents were executed at the residence of the complainant, then regardless of the fact of the partnership property and business being located at Jalgaon the Bombay Court before which it had been filed did have jurisdiction to entertain the complaint [Ravindra Sonusing Patil v Smt Rajendra Pandit Patil, (1991) Cr LJ 963 (Bom) (MF Saldanba J)].

Money obtained at a place B on the credit of railway-receipts sent from H—Offence of cheating is triable at B or H [Shamji, AIR 1922 N 40]. Goods ordered from N by letters to merchants at B received by the accused and not paid for—He could be tried for cheating at N or B [Hormasjil, AIR 1943 B 783; see Kishorilal, B1934 A 846]. Cheating is triable either at the place where the act was committed or the offence was completed or where the loss ensued to the complainant, i.e., place of business or residence [see Girdhar, AIR 1924 A 77; Kishorilal, supra; Colville, 26 C 746; Natesa, AIR 1940 M 649; Jamnadas, 16 Cr LJ 433; Yusuf Ali, 16 Cr LJ 719; see however Raghibir, AIR 1932 L 90; Gobindram, AIR 1931 SC 94 ]. Cheque given at Gaya was dishonoured by Bank in Calcutta. Crucial letter from the accused by which the complainant realised his intention to cheat was received at Buxar. Courts at the three places had jurisdiction [Metcalfe, AIR 1924 P 708 : 25 Cr LJ 81; see Madho, AIR 1933 O 215]. Drugs made by A in Calcutta were sent to B at Nasik for distribution and sale.—Held that A and B could be prosecuted under the Drugs Act at Nasik [State v Nathumal Damumal, AIR 1962 Bom 21 : 1962 (1) Cr LJ 16 : 63 Bom LR 362 : 1961 Nag LJ 271 ].

Insured letter by the accused from Bombay to the complainant at Gujarat intending to use the receipt in discharge of the accused’s debt.—Held that Gujarat Court had jurisdiction [Narain, 32 Cr LJ 996]. Defamatory letter posted at Madras and sent to Tinnevely. Both Courts have jurisdiction [Krishnamurthi, AIR 1923 M 665 (dissented from in UM Arvamutha Iyengar v Rajarathna Mudaliar, AIR 1957 Mad 572 : 1957 Cr LJ 983 : 1957 Mad LJ (Cri) 304); Kundanmal, AIR 1943 SC 196 ; Appavoo, AIR 1947 M 369]. Debtor at Yeotmal committing offence under section 69, The Provincial Insolvency Act, 1920 by executing a mortgage in Bombay can be tried at Yeotmal [Trikamji, AIR 1933 N 33].

The accused were charged under section 400, Indian Penal Code, 1860 (gang habitually committing dacoities) and tried at Dhanbad (Bihar). The head-quarters of the gang were in West Bengal and out of 33 dacoities 11 were committed in Bihar and some in Dhanbad. Held that trial at Dhanbad was valid. Such a case is also governed by section178 [Lalchand Khatri v State, AIR 1961 Pat 260 : 1961 (1) Cr LJ 841 : ILR 38 Pat 1251]. [s 179.12] Offences not within the section.—

Page 5 of 5 [s 179] Offence triable where act is done or consequence ensues.—

Barrel purchased at Meerut on the false representation that it contained a certain quantity of spirit was found to be short weight at Agra. The offence of fraud being completed at Meerut, Agra Court had no jurisdiction [Pragdas, 16 Cr LJ 825]. VP Parcel sent from M and paid for by the complainant to the post-office at H was found to contain saw-dust instead of tea. Cheating being completed at H, the Court at M had no jurisdiction although the money was delivered to the accused there [Kaleek, AIR 1927 M 554 : 28 Cr LJ 452—Contra. Posting is an essential part of offence, Gafur, AIR 1930 B 358 : 31 Cr LJ 1155 : Re Panduranga Rao, AIR 1962 AIR 257 : 1962 (2) Cr LJ 21 : ILR (1960) 2 AP 358 ]. Petition falsely verified at T was presented at R. Offence being completed at T, Court at R had no jurisdiction [Mohideen, 45 M 839]. Goods were delivered in Calcutta on condition that the accused was to hold them in trust until payment at Delhi but he disposed them of without payment.—Held that offence was completed in Calcutta and the loss at Delhi was not a “consequence” [Abdul Huq, AIR 1924 L 353]. K filed a cheating case against A at Rajashahi and A was arrested at Kanpur where he filed a case against K for defamation. His arrest at Kanpur being not a “consequence”, Kanpur Court had no jurisdiction [Kwaja Md, AIR 1938 A 632]. When a married woman removed from Kanpur was remarried at Gonda, the former Court had no jurisdiction to try for bigamy [Ibarat Husain v State, AIR 1955 All 363 : 1955 Cr LJ 897 ; (Munir, AIR 1926 A 189 impliedly overruled. It was also dissented from in MH Alexander v Claira Alexander, AIR 1959 All 67 : 1959 Cr LJ 14 : 1959 All WR 479 : 1959 All Cr R 397)].

Place of trial for conspiracy to submit a false report of service is the place where conspiracy was completed and not the place where “consequence” of false return followed [Abdul Karim, A 1929 P 640]. Section 179 does not apply to conspiracy to cheat, as “consequence” of conspiracy is not an ingredient of the offence [Gokaldas, AIR 1933 S 333].

Infringement of copyright is complete as soon as the book is printed and it does not depend upon any consequence [Kalidas, 18 Cr LJ 353]. As to whether abduction or kidnapping is a continuing offence, see notes to section 181(2) post.

The Courts at the place where cheque is presented to the bank and dishonoured has also jurisdiction to try the case under sections 138 and 141, Negotiable Instruments Act [Asanammal Kasem v Ceat Financial Services Ltd, 2002 (3) Crimes 494 (AP)]. [s 179.13] Objection on territorial jurisdiction.— While accused is summoned, the allegations made in complaint are presumed to be correct, therefore cancellation of objects raised on basis of territorial jurisdiction does not require any interference. [Kamal Krishna Chopra v State of UP, 1999 Cr LJ 2345 : 1999 All LJ 847 : 1999 (2) Crimes 162 (All)].

End of Document

[s 180] Place of trial where act is offence by reason of relation to other offence.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER XIII JURISDICTION OF THE CRIMINAL COURTS IN INQUIRIES AND TRIALS

The Code of Criminal Procedure, 1973 CHAPTER XIII JURISDICTION OF THE CRIMINAL COURTS IN INQUIRIES AND TRIALS [s 180] Place of trial where act is offence by reason of relation to other offence.— When an act is an offence by reason of its relation to any other act which is also an offence or which would be an offence if the doer were capable of committing an offence the first mentioned offence may be inquired into or tried by a Court within whose local jurisdiction either act was done. [s 180.1] Changes.— Section 180 corresponds to old section 180. The words “a charge of” before the words “the first-mentioned offence” and the illustrations have been omitted. [s 180.2] Scope and application of section 180.— It gives alternative jurisdiction in regard to a related offence, i.e., when the act committed is an offence by reason of its relation to any other act which is also an offence, e.g., abetment in relation to a principal offence, receiving stolen property in relation to theft etc. Trial in respect of the related offence can be held at the place where it was committed under section 177 and section 180 need not be invoked. But if it is desired to prosecute for such offence at the place where the principal offence was committed, recourse to section 180 is necessary [see Ram Dei, 18 A 350]. It is the relation of one act with the other that brings section 180 into operation and gives the jurisdiction to the Courts in both the local areas where the offence has occurred [State v Dhulaji Bavaji, AIR 1963 Guj 234 : 1963 (2) Cr LJ 273 : (1962) 3 Guj LR 409]. When a girl kidnapped from one place is raped upon at a different place, the offences are so inter-related that the enquiry can be held at either of the places in view of sections 180, 177 and 255 [Rampratap v State, AIR 1970 Raj 250 : 1970 Cr LJ 1559 : 1969 Raj LW 534 ; (Mohanlal, AIR 1928 B 475 (2) dissented)]. The Court having jurisdiction to try the offence of conspiracy has also jurisdiction to try an offence constituted by the overt act committed in pursuance of the conspiracy beyond its own jurisdiction [Purushottamdas Dalmia v State of WB, AIR 1961 SC 1589 : 1961 (2) Cr LJ 728 (SC); relied on RK Dalmia v Delhi Administration, AIR 1962 SC 1821 : 1962 (2) Cr LJ 805 (SC); Re LN Mukherji, AIR 1961 Mad 126 : 1961 Cr LJ 394 : 73 Mad LW 573 : 1960 (2) Mad LJ 340 :1960 Mad LJ (Cri) 724 (on appeal LN Mukherjee v State of Madras, AIR 1961 SC 1601 : 1961 (2) Cr LJ 736 (SC)); Keshari, 1951 AWR 678 ; Bachan Pande v State, AIR 1957 All 130 : 1957 Cr LJ 333 : 1956 All LJ 612 : 1956 All WR 640]. First accused selling at J substandard fertilizer manufactured by second accused may be tried by Court only at B [State of Gujarat v Agro Chemical and Animal, 1980 Cr LJ 516 : 1979 CrLR 413 (Guj)]. Where articles are removed from French territory by a stranger which are the subject of theft, French tribunals will have jurisdiction to try the theft and receipt of stolen goods. Where the accused had instigated the offences and arranged their transport to Mysore, the Courts at Pondicherry had jurisdiction to try the offences [Abdul Mazid v IM Yacoub, AIR 1965 Mad 329 : 1965 (2) Cr LJ 105 : 1965 (2) Mad LJ 31]. [s 180.3] Citizen of foreign state.—

Page 2 of 2 [s 180] Place of trial where act is offence by reason of relation to other offence.—

Indian Courts have no jurisdiction to try a subject of a foreign State for the abetment of an offence committed in India in pursuance of the abetment done by his acts outside India [Hiralal, 1945 Nag 130 : AIR 1946 N 128; see Md Hussain, 25 Cr LJ 560]. An Indian citizen found in a foreign state in possession of property stolen in India can be tried in Indian Court with a certificate (now sanction) under section 188 [Sundara, 11 Cr LJ 306]. [s 180.4] Manufacture and sale.— Where fertilizer manufactured at one place is sold at another place, the manufacturer can be tried at the place of sale [Haryana Co-operative Supply and Marketing Federation Ltd v State of Punjab, 1983 Cr LJ 1595 : (1983) 85 Punj LR 398 : 1983 Chand Cr C 356 (P&H)]. [s 180.5] Sections 190(a) and 209.— When a comprehensive charge-sheet for offences under Terrorists Act is filed in a court of magistrate, the magistrate should return it to concerned police officer to file it in Designated Court [Karna Siva Kanchi Reddy v State of AP, 1990 Cr LJ 2743 : 1990 (1) APLJ 1 : 1989 (2) LS (AP) 317]. [s 180.6] Abetment.— Where abetment as well as the principal offence are committed in a place in Bengal, but the abettor has a house in Bihar, the Court in Bihar can try the charge of abetment [Bhagwalia, ILR 3 Pat 412, section 180 cases abetment of abetment also since such abetment is itself an offence Mohamad Ayoob Khuro v Emperor, AIR 1946 Sind 1 : (1946) 47 Cr LJ 455 : 222 IC 431].

End of Document

[s 181] Place of trial in case of certain offences.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER XIII JURISDICTION OF THE CRIMINAL COURTS IN INQUIRIES AND TRIALS

The Code of Criminal Procedure, 1973 CHAPTER XIII JURISDICTION OF THE CRIMINAL COURTS IN INQUIRIES AND TRIALS [s 181] Place of trial in case of certain offences.— (1) Any offence of being a thug, or murder committed by a thug, of dacoity, of dacoity with murder, of belonging to a gang of dacoits, or of escaping from custody, may be inquired into or tried by a Court within whose local jurisdiction the offence was committed or the accused person is found. (2) Any offence of kidnapping or abduction of a person may be inquired into or tried by a Court within whose local jurisdiction the person was kidnapped or abducted or was conveyed or concealed or detained. (3) Any offence of theft, extortion or robbery may be inquired into or tried by a Court within whose local jurisdiction the offence was committed or the stolen property which is the subject of the offence was possessed by any person committing it or by any person who received or retained such property knowing or having reason to believe it to be stolen property. (4) Any offence of criminal misappropriation or of criminal breach of trust may be inquired into or tried by a Court within whose local jurisdiction the offence was committed or any part of the property which is the subject of the offence was received or retained, or was required to be returned or accounted for, by the accused person. (5) Any offence which includes the possession of stolen property may be inquired into or tried by a Court within whose local jurisdiction the offence was committed or the stolen property was possessed by any person who received or retained it knowing or having reason to believe it to be stolen property. [s 181.1] Changes.— Section 181 corresponds to old section 181 with the following changes:

(1) Sub-section (1) corresponds to old sub-section (1) redrafted and altered. (2) Old sub-sections (4) and (2) have been renumbered (2) and (4) respectively and redrafted. (3) Old sub-section (3) has been split into sub-sections (3) and (5) and redrafted.

Material changes introduced are:

Page 2 of 4 [s 181] Place of trial in case of certain offences.—

(1) In sub-section (1), the place of commission of offence has been expressly mentioned as an alternative venue. (2) Old sub-section (3) has been split into sub-sections (3) and (5), the former dealing with the offence of theft, extortion or robbery and the latter dealing with the offences, which include the possession of stolen property. (3) In sub-section (4) with regard to the offence of criminal misappropriation or of criminal breach of trust, an additional alternative venue has been provided for, namely, the local area where the property was required to be returned or accounted for, in order to settle a conflict of decisions on the point. [s 181.2] Scope and application of section 181.— The section gives alternative jurisdiction in respect of certain primary offences. It applies to the relative jurisdiction of Courts in India over offences committed in India and not to offence by foreign subjects outside India [Baladewa, 28 A 372; Gokaldas, AIR 1933 SC 333 ]. The intention is to provide for the case of an offender proceeding from one local jurisdiction in India to another in India [Jaimal, 1 PR 1901]. It has no application to an offence committed by an Indian citizen in a place beyond India and of such offence the magistrate cannot take cognizance without a certificate (now previous sanction of Central Government) under section 188 [Tribhun, 13 Cr LJ 530]. [s 181.3] Sub-section (1).— Thug (sections 310, 311 Indian Penal Code, 1860); Murder (section 300, Indian Penal Code, 1860); Dacoity (section 391, Indian Penal Code, 1860); Dacoity, with murder (section 396, Indian Penal Code, 1860); Gang of dacoits (section 400); Escape from custody (section 224, Indian Penal Code, 1860). [s 181.4] “Is found”.— The word “found” has been added. “Found” means not where a person is discovered but where he is actually present within the jurisdiction of a Court otherwise competent even though brought under arrest illegally and against his will [Maganlal, 6 B 622; and other cases cited under the heading “He may be found” in section 188, post]. [s 181.5] Sub-section (2).— Kidnapping (sections 359–361, Indian Penal Code, 1860); Abduction (section 362, Indian Penal Code, 1860). The sub-section provides that venue may be laid either in the jurisdiction (a) where the offence of kidnapping or abduction was committed or where the kidnapped or abducted person was (b), conveyed or (c) concealed or (d) detained. “Kidnapping” and “abduction” do not include wrongfully confining or keeping in confinement the abducted person. Wrongfully confining an abducted person may be tried by the Court within whose local jurisdiction the confining or kidnapping took place [Adhik Gope Emperor, AIR 1947 Pat 17 : (1947) 48 Cr LJ 189 : ILR 25 Pat 241; see Badlu, 46 A 138 : AIR 1924 A 454; Radha Rani v Rahim Sardar, AIR 1946 Cal 459 : (1946) 47 Cr LJ 1020 : 50 Cal WN 552]. In kidnapping the “taking” is not a continuing offence but is complete as soon as the person is out of the guardian’s keeping. The same is with enticing. Accused and a married woman ran away from Madras and settled in Bombay. The enticing, if any, was at Madras and Bombay Court has no jurisdiction [Ram Narayan, AIR 1937 B 186]—Contra: Kidnapping is a continuing offence when removed from place to place [Nanhua, 53 A 140] and so is abduction [Ganga, 12 ALJ 91; Parag, AIR 1933 O 45 : 34 Cr LJ 220]. Whether abduction is a continuing offence depends on the facts of each case [Adhik, 25 241].

Whether kidnapping or abduction is a continuing offence when removed from place to place (as a conflict of opinion obtains in this regard) is not necessary for the purpose of venue of trial in view of special provision made in this sub-section [see Adhik, supra].

Petitioner was charged with kidnapping a girl and outraging her modesty. She was picked up from the railway station and taken in train and was conveyed and detained at another place and further acts of outraging her modesty were committed in train from one place to another, Court at another place would have jurisdiction to try both the offences [Devalla Venkateshwarlu v State of AP, 2000 Cr LJ 798 : 1999 (2) Andh LT (Cri) 167 : 2000 (2) Rec Cr R 69 (AP)].

Page 3 of 4 [s 181] Place of trial in case of certain offences.— [s 181.6] Sub-section (3): Theft, extortion, robbery.— To give jurisdiction, theft, extortion or robbery should be committed or stolen property possessed by any person committing the offence or by any person who received or retained the property knowing or having reason to believe it to be stolen within the jurisdiction concerned [see Bhima, AIR 1926 A 167; Zahir, AIR 1934 A 455; Bisseswar, 26 Cr LJ 206; Lakhpat Singh v State, 1980 Cr LJ 776 (Raj)]. [s 181.7] Sub-section (4): Criminal misappropriation.— Though the contrary view has been taken in a few cases [see Rich, 52 A 894; Md Rashid, 1926 A 466] there appears to be a fair unanimity of opinion that in view of the specific provision in section 181(4) the offence of criminal misappropriation or breach of trust has been taken outside section 179 and is triable only at the place mentioned in section 181(4) [see notes to section 179 ante, Ali Md, AIR 1931 A 164; Jiwandas, 55 B 59 : AIR 1930 B 490 FB : 32 Cr LJ 331; Mukhi Tirath, AIR 1937 SC 68 FB; Kashiram, 56 A 1047 : AIR 1934 A 499 FB; Laxman Shrikrishna v Dayabhai Ram Chandra, AIR 1948 Nag 80 : (1948) 49 Cr LJ 121 : 1947 Nag LJ 363 ; Girdhar, AIR 1924 A 77; Aya Ram, 34 Cr LJ 902; Simhachalam, 21 Cal WN 573; Daityari, 46 Cal WN 952; Gunananda, 39 Cal WN 432, 435; Gawkaran, AIR 1921 P 85; Mahtab, AIR 1924 L 663; Maitra, 25 Cr LJ 377; Huda, AIR 1940 C 367; Dinanath, 26 Cr LJ 136; Bangshilal, AIR 1924 As 131 ; See also Jijo v State, 2003 Cr LJ 256 (257) (Kant) : 2002 AIR Kant HCR 3022 : ILR 2002 Kant 3994 ].

The offence may be tried by the Court within whose local jurisdiction—(i) any part of the property was received by the accused, or (ii) was retained by him, or (iii) was required to be returned by him, or (iv) was required to be accounted for by him, or (v) the offence was committed.

Under the old Code there was a conflict of opinion as to whether the offence could be inquired into or tried by a Court within whose local jurisdiction the accused was required by law or contract to render account or return the entrusted property but failed to discharge that obligation. One view was that this could be done [Gunananda, AIR 1936 C 615; Mohru, AIR 1936 A 193]. Another view was that if there was no evidence to show other than the fact of accounting, venue might be laid at the place where the accused failed to render account [Paul de Flonder, 35 Cal WN 809 : AIR 1931 C 523; S Arunachala Goundan v KS Akileshwara Ayyar, AIR 1952 Mad 158 : 1952 Cr LJ 308 : 1951 (2) Mad LJ 627 : 1951 Mad LW 851]. But quite a contrary view was held negativing the place of accounting or the place of delivery of property as a venue for trial [Pascal, 35 Cal WN 320 : AIR 1951 C 521; Jivandas, AIR 1930 B 490 FB]. To settle the conflict the additional alternative venues, namely the places where the property was required to be returned or accounted for have been added in the sub-section. The Court at the place where the goods are to be delivered has jurisdiction to try the case of criminal breach of trust [Mysore Manufacturers and Traders v Ray Choudhary, 1978 Cr LJ 577 : 1978 (1) Kant LJ 28 : 1978 Mad LJ (Cri) 483 (Kant)].

It is not essential that there should be a dishonest intention to misappropriate at the time the property is received or retained. It is enough if the property was received or retained by the accused at a particular place to give jurisdiction. The word “received” cannot be construed to mean “actually received” [Ram Charan v Devendra Kumar, AIR 1954 All 648 : 1954 Cr LJ 1356 : 1954 All LJ 314 : 1954 All WR 452]. Even if the property is received quite properly and innocently at one place and is subsequently dishonestly dealt with in another place, the accused can be tried at the former place [Laxman, 51 B 101]. Postal orders sent by post from Muzzafarnagar to Bombay as entry-fee for a competition—the misappropriation, if any, was in Bombay and Muzzafarnagar Court had no jurisdiction [George, AIR 1939 A 602].

In absence of any specific allegation of misappropriation of sales-tax amount of a company in any particular place, venue of trial will be place where accounting of company has to be done. [HS Tiwari v State of WB, 2001 Cr LJ 3773 : 2001 (2) Cal HN 639 : 2001 (4) Rec Cr R 820 (Cal)].

In the instant case the complaint was only in respect of criminal breach of trust and misappropriation in relation to “streedhan”. The complainant had made a demand of Rs 9 lakhs to the complainant which was entrusted to the accused by issuing legal notice from Bangalore and despite said notice, the amount was not refunded. Under section 181(4), Code of Criminal Procedure, 1973, no doubt, the cause of action accrued for filing complaint at the place where the incident had taken place, nevertheless, even a place wherefrom the demand

Page 4 of 4 [s 181] Place of trial in case of certain offences.— was made, is also conferred jurisdiction. [Ganesh Prasad Hegde v Surekha Shetty, 2010 Cr LJ 2186 (2188) (Kant) : ILR 2010 Kar 916 ]. [s 181.8] Place of accounting.— The last words of section 181(4), place of accounting were added on the “recommendation of the Law Commission of India, 41st Report, paras 11, 24.

When accounts of a branch office are maintained at that office, then an employee of the company receiving money at that branch has to account at that branch and not at the head office. Hence, Court at the branch office can try the offence alleged to have been committed by the employee by failure to account [SR Sharma v State of WB, (1993) Cr LJ 831 (Cal) (Glesh Rantan Bhattacharjee J)]. [s 181.9] Marriage.— The marriage between the parties was solemnised at place D, where the couple lived together after their marriage. Dowry items were entrusted at place D only, and it was alleged that property was misappropriated by the husband at place D. The offence of criminal breach of trust was triable only by Courts at place D. An FIR lodged at place A, where the wife’s parental home was situated, was without territorial jurisdiction and was liable to be quashed. The forum of adjudication and (for the matter of that) the place where the police have to investigate the commission of the alleged offence, cannot therefore, depend upon the sweet will of the complainant wife, who may choose to shift to a place other than the place where the alleged offence of criminal breach of trust is said to have been committed. The words “were required to be returned or accounted for” have no nexus whatsoever with either the parental home of the wife or any other place where she chooses to reside after the breakdown [Harjeet Singh Ahluwalia v State of Punjab, (1986) Cr LJ 2070 : 1986 (3) Crimes 503 : 1986 Chand Cr C 302 (P&H) (Surinder Singh J)]. [s 181.10] Entrustment of dowry articles—Misappropriation.— In the instant case, several acts like entrustment of dowry articles which are the “Stridhan” of the Respondent No. 2, and on being demanded, refused to be returned and misappropriation, are said to have committed at Sadri, and, therefore, to this extent, the cause of action arose at Sadri, and the other part of the cause of action i.e. subjecting the Respondent No. 2 with cruelty and harassment at Ahmedabad and, therefore, the Court either at Desuri, having jurisdiction over police station, District Pali; or the Court of Ahmedabad, has jurisdiction to inquiry into and try the case. Respondent No. 2 has instituted the case with Police Station, Sadri, and therefore, the Court at Desuri, is having local jurisdiction to try the case. [Kanhaiya Lal v State of Rajasthan, 2008 Cr LJ 3220 (3222) (Raj) : RLW 2008 (3) (Raj 2555 ]. [s 181.11] Sub-section (5).— This sub-section comprises all offences which includes possession of stolen property. Stolen property has been defined in section 410, Indian Penal Code, 1860. Hence, this sub-section lays down the venues for offences punishable under sections 411, 412, 413 and 414, Indian Penal Code, 1860.

The place of commission of offence of theft within the meaning of this sub-section means the actual place where the offence of theft was committed and not the place deemed to be so by a legal fiction in section 183. Hence an offence of receiving or retaining stolen property cannot be tried by a Court which is enabled to try an offence of theft committed on a journey when the offence of receiving or retaining stolen property is not committed within its jurisdiction [Munnalal v State, AIR 1964 Raj 118 : 1964 (1) Cr LJ 700 : 1963 Raj LW 601 ]. The sub-section appears to give jurisdiction to Indian Courts in the case of theft committed outside India if the stolen property is found in India in the possession of either the thief or any receiver. End of Document

[s 182] Offences committed by letters, etc.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER XIII JURISDICTION OF THE CRIMINAL COURTS IN INQUIRIES AND TRIALS

The Code of Criminal Procedure, 1973 CHAPTER XIII JURISDICTION OF THE CRIMINAL COURTS IN INQUIRIES AND TRIALS [s 182] Offences committed by letters, etc.— (1) Any offence which includes cheating may, if the deception is practised by means of letters or telecommunication messages, be inquired into or tried by any Court within whose local jurisdiction such letters or messages were sent or were received; and any offence of cheating and dishonestly inducing delivery of property may be inquired into or tried by a Court within whose local jurisdiction the property was delivered by the person deceived or was received by the accused person. (2) Any offence punishable under Section 494 or Section 495 of the Indian Penal Code (45 of 1860) may be inquired into or tried by a Court within whose local jurisdiction the offence was committed or the offender last resided with his or her spouse by the first marriage, 1[or the wife by the first marriage has taken up permanent residence after the commission of the offence.] [s 182.1] Changes— 1978 Amendment.—In sub-section (2), the words “or the wife by the first marriage has taken up permanent residence after the commission of the offence” have been added to enable the complainant to file complaint at the place of her permanent residence. [s 182.2] Scope and application of section 182.— This section is new, Sub-section (1) provides that a person accused of cheating by practicing deception from distance by means of letters or telecommunication messages is triable not only at the place where the message was received but also at the place from where the accused had been sending the message and carrying on his dishonest practices and reaping the benefit. And, any offence of cheating with delivery of property may be tried by any Court within whose jurisdiction the property was delivered by the person deceived or received by the accused.

Non-payment of dividend as per notice of annual general meeting sent by post does not amount to offence committed by letter [Upendra Kumar Joshi v Manik Lal Chatterjee, 1981 Cr LJ (NOC) 12 : 1980 BLJR 668 (Pat)]. Where letter was addressed at a particular address, the Court having jurisdiction over such address would be the proper court of trial for offence relating to such letter [Murlidhar Harichand Jindal v Ramesh Kumar Bawri, 1980 Cr LJ (NOC) 68 (Gau)].

A clause in the Articles of Association of a society cannot have the effect of negating the provisions of section 182(1), Code of Criminal Procedure, 1973 so as to oust the jurisdiction of Criminal Court [Jimmi R Jagtiane v State of Haryana, 2002 Cr LJ 2397 (2400) (P&H) : 2002 (1) Rec CrR 578]. [s 182.3] Jurisdiction.—

Page 2 of 3 [s 182] Offences committed by letters, etc.— Complaint by wife filed in Court at maternal town where she was living permanently even before alleged offence of bigamy was committed by husband is maintainable [P Nagalakshmi v Dr K Premavathi, 1997 Cr LJ 808 : 1996 Mad LJ (Cri) 660 : 1997 (2) Rec Cr R 573 (Mad)]. [s 182.4] Cheating (Sub-section (1)).— In a complaint for offence under section 420, Indian Penal Code, 1860 it was not specifically pleaded what were the letters or communications by means of which deception was allegedly practiced by the accused and if there were any such letters or communication, whether they were received within the territorial jurisdiction of the judicial Magistrate “N”. Not only that no such allegations were made but in FIR the place of occurrence was mentioned as “S” which was admittedly outside the territorial jurisdiction. It was, therefore, held that the Court at “N” had no territorial jurisdiction to try the offence under section 420, Indian Penal Code, 1860 [D.K. Patnaik v Station House Officer, 2008 Cr LJ 2287 (2291) (AP) : 2008 (1) Andh LT (Cri) 321 : 2008 (1) Andh LD (Cr) 692].

It was not disputed that the petitioners-accused were all residents of Delhi. It was also not disputed that the negotiations and the discussions between the parties took place while they were in Delhi and the cheque of Rs 50 lakh has been issued while they were in Delhi. Held, since any offence of cheating and dishonestly inducing delivery of property may be inquired into or tried by a Court within whose local jurisdiction the property was delivered (section 182, Code of Criminal Procedure, 1973) by the person deceived or was received by the accused person, the Court at D had jurisdiction to try the offence [Punit Pruti v State of Government of NCT of Delhi, 2010 Cr LJ 1111 (1113, 1114) (Delhi) : 2010 (3) DLT (Cri) 877 : 2010 (4) Cur Cri R 87]. [s 182.5] Sub-section (2).— For the effect of section 182(2) [see Sukhaswar Oopal v State of MP, (1987) Cr LJ 921 : 1986 CrLR (MP) 143 : 1986 (2) DMC 146 : 1986 Hindu LR 118 para 5.10 (MP)].

Section 182(2) is intended to throw open a convenient jurisdiction to the offended spouse. Residence within the jurisdiction can, in the circumstances of the case, be construed as “permanent” residence. An absolute strict construction of the word “permanent” in the context could lead to undesirable results [Ravinder Kaur v Gurmit Singh, (1985) Cr LJ 601 : 1985 (1) Rec Cr LR 173 : 1985 Chand Cr C 93 (P&H)].

In case of bigamy, the Magistrate having jurisdiction at the place where the offence was committed and also the Magistrate having jurisdiction over the place where the offender last lived with his or her first spouse will have jurisdiction [Sua Saroj Ganesh Kale v Ganesh Manikrao Kale, 2007 Cr LJ (NOC) 101 : 2007 (1) AIR Bom 42 (Bom)]. [s 182.6] Cognizance by Magistrate.— When wife has taken permanent residence at a place other than marital home because her husband committed offence of bigamy then the Court at place where wife had taken permanent residence would have jurisdiction to entertain complaint. [Bijain Nath v Smt Basabi Nath, 2001 (3) Gau LR 1 : 2001 (2) Hindu LR 566 : 2001 Cr LJ 4149 (Gau)]. [s 182.7] Territorial jurisdiction.— When wife filing affidavit stated therein that she is permanently living with her mother at place “M” not denied by husband then Court at place “M” has jurisdiction to try alleged offence of bigamy by husband. [Smt Usha Gurubaxani v Lalit Gurubaxami, 2001 Cr LJ 4305 : 2001 (3) MPLJ 485 : 2001 (2) Jab LJ 155 (MP)].

Offence of bigamy is to be tried by Court within whose local jurisdiction the offence takes place or where the offender last resided with his/her spouse by first marriage [San Saroj Ganesh Kale v Ganesh Manikrao Kale, 2007 Cr LJ NOC 101 : 2007 (1) AIR Bom R 242 (Bom)]. [s 182.8] Sub-section (4).— After being turned out from the matrimonial home, the complainant was staying with her parents at place “J”. She levelled allegations which made out commission of offence under section 406, Indian Penal Code, 1860. As per the provisions of section 181(4), Code of Criminal Procedure, 1973, the offence of criminal breach of trust may be inquired into or tried by a Court within whose jurisdiction any part of the property which is the

Page 3 of 3 [s 182] Offences committed by letters, etc.— subject of the offence was required to be returned or accounted for by the accused person. The complainant specifically alleged that all the dowry articles had been retained by the accused. The divorce petition was filed by accused. On that very day and also on the following day a request was made but the accused refused to return the dowry articles. The complainant was living at J with her parents and the complaint filed in Court at J was maintainable [Shiv Dayal Arora v Renu Arora, 2007 Cr LJ 2972 (2973) : 2007 (3) RCC Cri R 10; Sanjay Kothari v State of Rajasthan, 2008 Cr LJ 2972 (2975) : 2008 (4) All LJ 122 : 2008 (61) All Cri C 540].

The six wind operated electricity generators were leased to petitioners and the petitioners had to account for the same at Manipal. The lease was accepted by petitioners at Manipal. Therefore, the trial of a case of criminal breach of trust before jurisdiction Court at Udupi was in conformity with provisions under section 181(4), Code of Criminal Procedure, 1973 [REPL Engineering Ltd v ICDS Ltd, 2008 Cr LJ 3415 (3417) : (2008) (4) AIR Kar R 475 (Kant)].

1

Ins. by the Code of Criminal Procedure (Amendment) Act, 1978 (45 of 1978), section 15.

End of Document

[s 183] Offence committed on journey or voyage.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER XIII JURISDICTION OF THE CRIMINAL COURTS IN INQUIRIES AND TRIALS

The Code of Criminal Procedure, 1973 CHAPTER XIII JURISDICTION OF THE CRIMINAL COURTS IN INQUIRIES AND TRIALS [s 183] Offence committed on journey or voyage.— When an offence is committed whilst the person by or against whom, or the thing in respect of which, the offence is committed is in the course of performing a journey or voyage, the offence may be inquired into or tried by a Court through or into whose local jurisdiction that person or thing passed in the course of that journey or voyage. [s 183.1] Changes.— Section 183 corresponds to old section 183. It has been redrafted to make it more clear that in respect of offence committed on journey or voyage, venue may be laid in any local area through or into which the person by or against whom or the thing in respect of which, the offence was committed, passed in the course of that journey or voyage. [s 183.2] Scope and application of section 183.— It is intended to remove doubts as regard the exact locality in which the offences alleged to have occurred in a journey had been actually committed or completed [Malony, 1 MHCR 193]. The section of the thing which is on journey. if X is travelling by train from Bombay to Calcutta and at some place not definitely known is robbed and killed, the inquiry or trial in such a case against the offender who is traced may be held in any local area between Bombay and Calcutta, and it is not now necessary to show that the offender was also performing any journey (as it was required to be shown under the old section). The section applies only to journey or voyage within the territories of India and not on the High Seas or in a foreign territory [Nadar, AIR 1923 L 487; Podimonu, 52 M 61]. As to application of sections 178–183 to cases where an offence or a part of it is committed beyond India, See ante notes to section 177 and section 188. [s 183.3] Offence committed during journey.— Offence during the journey from one place to another can be tried at the latter place [Maulabux, AIR 1925 SC 177 ]. But the journey should be continuous from one terminus to another without interruption by either party. Thus, when offence was committed somewhere between Bombay and Allahabad on journey from Bombay to Calcutta and both the complainant and the accused separated at Allahabad and reached Howrah by different trains, the Howrah Court had no jurisdiction [Piram, 21 WR 66 Cr; See Malany, 1 MHCR 193]. A short halt during journey does not stand in the way of trial at the terminus [Abdul, 25 WR 45 Cr]. That from running train can be tried by any Court having jurisdiction over the place through which the train passed [Larzarus, AIR 1924 L 351; Satnarain, 1951 AWR 236 ].

End of Document

[s 184] Place of trial for offences triable together.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER XIII JURISDICTION OF THE CRIMINAL COURTS IN INQUIRIES AND TRIALS

The Code of Criminal Procedure, 1973 CHAPTER XIII JURISDICTION OF THE CRIMINAL COURTS IN INQUIRIES AND TRIALS [s 184] Place of trial for offences triable together.— Where— (a) the offences committed by any person are such that he may be charged with, and tried at one trial for, each such offence by virtue of the provisions of Section 219, Section 220 or Section 221, or (b) the offence or offences committed by several persons are such that they may be charged with and tried together by virtue of the provisions of Section 223, the offences may be inquired into or tried by any Court competent to inquire into or try any of the offences. [s 184.1] Scope and application of section 184.— This section makes an express provision in this respect that where offences committed by any person are such that he may be charged with and tried at one trial or the offences committed by several persons are such that they may be charged and tried together, the offences may be inquired into or tried by any Court competent to try any of the offences. That is to say, it deals with venue or trial in case of joinder of charges and joinder of persons permissible at one trial; this gives effect to the view of the Supreme Court in Purushottamdas Dalmia v State of WB, AIR 1961 SC 1589 : 1961 (2) Cr LJ 728 (SC); LN Mukherjea v State of Madras, AIR 1961 SC 1601 : 1961 (2) Cr LJ 736 (SC)].

Where an offence of kidnapping was committed at one place and the offence of rape was committed at another place, as both the offences committed under sections 366 and 376 form the same transaction under section 220, trial can be held at both the places, i.e., the initial place where the offence of kidnapping was committed and the place where the intention of kidnapping was achieved [State of Karnataka v M Balakrishna, 1980 Cr LJ 1145 : ILR (1980) 2 Kant 1070 : 1980 (1) Kant LJ 387 (Kant); Rampratap v State, AIR 1970 Raj 250 : 1970 Cr LJ 1559 : 1969 Raj LW 534 ; Chhotery Mian v State, 1973 Cr LJ 908 : 1973 All LJ 160 : 1973 All Cr R 104 (All); CN Krishna Murthy v Abdul Subban, AIR 1965 Mys 128 : 1965 (1) Cr LJ 565 ; Purushottamdas Dalmia v State of WB, AIR 1961 SC 1589 : 1961 (2) Cr LJ 728 (SC) relied on].

Where a young boy was kidnapped by Accused nos 1 and 2 at B and 2 took him to K where with assistance of Accused nos 3, 4 and 5 he was emasculated, investigation against Accused nos 3, 4 and 5 at B was legal, and on a combined reading of sections 156(1), 184(b) and 223(d) the court at B has ample jurisdiction to try the offences [Lilade Sitade Pavaiya v State of Gujarat, 1983 Cr LJ 934 : 1982 (2) Guj LR 734 : 1983 (1) Crimes 768 (Guj)].

Page 2 of 2 [s 184] Place of trial for offences triable together.— End of Document

[s 185] Power to order cases to be tried in different sessions divisions.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER XIII JURISDICTION OF THE CRIMINAL COURTS IN INQUIRIES AND TRIALS

The Code of Criminal Procedure, 1973 CHAPTER XIII JURISDICTION OF THE CRIMINAL COURTS IN INQUIRIES AND TRIALS [s 185] Power to order cases to be tried in different sessions divisions.— Notwithstanding anything contained in the preceding provisions of this Chapter, the State Government may direct that any cases or class of cases committed for trial in any district may be tried in any sessions division: Provided that such direction is not repugnant to any direction previously issued by the High Court or the Supreme Court under the Constitution, or under this Code or any other law for the time being in force. [s 185.1] Changes.— Section 185 corresponds to old section 178 with the following changes :

(1) The words “the preceding provisions of this Chapter” have been substituted for “section 177”. (2) In the proviso the words have been substituted.

The section has been redrafted to expressly override all other venue provisions. In the proviso, the reference to obsolete provisions of law has been omitted and the scope has been widened to cover the possibility of previous directions issued by the Supreme Court also, besides the High Court. [s 185.2] Scope and application of section 185.— It confers power on the State Government to direct cases committed for trial in any district to be tried in different sessions divisions. A metropolitan area is a separate sessions division and district [section 7(1)]. Besides the power of the High Court in the proviso, it has power to transfer cases under section 407. Under clause XXVII of Letters Patent it can remove a criminal case from any Court for trial before itself. Under section 406 the Supreme Court may transfer a case from one High Court to another High Court.

While the direction by the State Government would enable the cases committed for trial to the court of session in any district to be tried in a different sessions division, it would not be sufficient to confer jurisdiction on the sessions court of that division to try the cases unless the Sessions Judge of that division would be appointed under section 9(4) to be also additional sessions judge for the sessions division to the Court of Session to which the cases were committed for trial [Hari Das Mundhra v State, AIR 1959 All 82 : 1959 Cr LJ 113 ]. Section 178 would not be sufficient authority for a Magistrate to commit a case of the specified class for trial to the Court of Session for the specified sessions division [Nga Tha Moung, 10 C 643].

Page 2 of 2 [s 185] Power to order cases to be tried in different sessions divisions.—

When a case has been transferred by Government from one sessions division to another, the High Court under section 407 can still transfer the case from the latter session division to any other sessions division [The Public Prosecutor v DV Reddy, 1976 Cr LJ 1252 : 1976 (1) Andh WR 184 : 1976 Mad LJ (Cri) 165 (AP)]. End of Document

[s 186] High Court to decide, in case of doubt, district where inquiry or trial shall take place.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER XIII JURISDICTION OF THE CRIMINAL COURTS IN INQUIRIES AND TRIALS

The Code of Criminal Procedure, 1973 CHAPTER XIII JURISDICTION OF THE CRIMINAL COURTS IN INQUIRIES AND TRIALS [s 186] High Court to decide, in case of doubt, district where inquiry or trial shall take place.— Where two or more Courts have taken cognizance of the same offence and a question arises as to which of them ought to inquire into or try that offence, the question shall be decided— (a) if the Courts are subordinate to the same High Court, by that High Court; (b) if the Courts are not subordinate to the same High Court, by the High Court within the local limits of whose appellate criminal jurisdiction the proceedings were first commenced, and thereupon all other proceedings in respect of that offence shall be discontinued. [s 186.1] Changes.— Section 186 corresponds to old section 185. The section has been revised, consolidated and made simpler. [s 186.2] Scope and application of section 186.— It provides that in case of doubt as to jurisdiction the High Court is to decide where should the trial be held. Clause (a) applies to cases where the Courts are subject to the same High Court and clause (b) where they are subject to different High Courts. When any such doubt arises, the Court is to refer the matter to the High Court concerned and it is desirable that there should be a statement of the case with the different contentions put forward on the point of jurisdiction. Without such proper materials there may be a good deal of confusion [see State v Sadananda Darji, AIR 1952 Cal 563 : 1952 Cr LJ 1253 ]. “Same offence” [see G Sreeramulu v V Rangaswamy, 1978 Cr LJ 1475 : 1978 (2) Andh LT 173 (AP)]. [s 186.3] Object.— The object of the section is to prevent a person from being unnecessarily harassed in more Courts than one for the same cause of action [Ashutosh, 82 Cal WN 452]. Section 186, Code of Criminal Procedure, 1973 is based on the principle of convenience and expediency. The main object and intention of the Legislature in enacting section 186, Code of Criminal Procedure, 1973 is to prevent the accused persons from being unnecessarily harassed for the same offences alleged to have been committed within the territorial jurisdiction of more than one courts. However, the sine qua non for the application of this provision is that the persons implicated as an accused in different cases must be the same. If these conditions are satisfied then subsequent proceeding has to be discontinued [State of Rajasthan v Bhagwan Das Agrawal, 2014 (1) Mad LJ (Cr) 236 : 2014 Cr LJ 1006 (SC)]. [s 186.4] Clause (a).—

Page 2 of 2 [s 186] High Court to decide, in case of doubt, district where inquiry or trial shall take place.— The old section was held by a full Bench not restricted to cases in which there is doubt as to whether one Court or another has jurisdiction, but included cases of doubt whether the choice between the two Courts both having jurisdiction should be decided on the ground of convenience [Charu, Ch. 21 Cal WN 320 : 44 C 595 FB; Chaichal, 9 Cr LJ 581]. In this earlier cases of Rajani, 41 C 305 etc., it was held that there could be no interference on the ground of convenience]. Clause (a) does not appear to be opposed to the view in the Full Bench case above. The provisions of clause (a) do not fetter in any way the discretion of the High Court for deciding as to in which Court subordinate to the High Court the enquiry or trial should proceed. In clause (b) however, the sine qua non for such interference is as to where the proceedings “were first commenced” [Sarkar v Sunil Ranjan Sarkar, AIR 1970 Cal 81 : 1970 Cr LJ 208 ]. [s 186.5] Clause (b).— The conflict between the Calcutta [Charu Ch, 44 C 595, FB] and Madras [Md Ghouse, 40 M 835] decisions was set at rest by adding sub-section (2) [See now clause (a)] in adoption of the Madras view and making it clear that one High Court cannot by implication or otherwise transfer a case to itself from another High Court, or vice versa, or to decide which of the two other High Courts should try a particular case (Statement of Objects and Reasons 1921). Clause (b) deals with the case of two or more Courts not subordinate to the same High Court with reference to the jurisdiction within which proceedings were first commenced. [As to the power of the Supreme Court to transfer cases from one High Court to another, see section 406].

A theft took place in Silchar (Assam) and the alleged stolen articles were recovered from the accused at Panipat (Punjab). The Silchar police submitted a charge sheet against the accused under section 380, Indian Penal Code, 1860 and the accused were also sent up by the Panipat police for trial there under section 411, Indian Penal Code, 1860. There could be no conviction under section 411, Indian Penal Code, 1860 without proof of theft at Silchar and recovery of the same articles at Panipat. So the trial under section 380 should get priority and the hands of Panipat Court should be stayed under clause (b) [State v Ram Chand, AIR 1959 Ass 20 : 1959 Cr LJ 169 ].

Writ jurisdiction is available even if part of criminal act is committed within the State [Dr Ajoy Kumar Basu, 1990 East Cr C 178 (Cal)]. End of Document

[s 187] Power to issue summons or warrant for offence committed beyond local jurisdiction.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER XIII JURISDICTION OF THE CRIMINAL COURTS IN INQUIRIES AND TRIALS

The Code of Criminal Procedure, 1973 CHAPTER XIII JURISDICTION OF THE CRIMINAL COURTS IN INQUIRIES AND TRIALS [s 187] Power to issue summons or warrant for offence committed beyond local jurisdiction.— (1) When a Magistrate of the first class sees reason to believe that any person within his local jurisdiction has committed outside such jurisdiction (whether within or outside India) an offence which cannot, under the provisions of Sections 177 to 185 (both inclusive), or any other law for the time being in force, be inquired into or tried within such jurisdiction but is under some law for the time being in force triable in India, such Magistrate may inquire into the offence as if it had been committed within such local jurisdiction and compel such person in the manner hereinbefore provided to appear before him, and send such person to the Magistrate having jurisdiction to inquire into or try such offence, or if such offence is not punishable with death or imprisonment for life and such person is ready and willing to give bail to the satisfaction of the Magistrate acting under this section, take a bond with or without sureties for his appearance before the Magistrate having such jurisdiction. (2) When there are more Magistrates than one having such jurisdiction and the Magistrate acting under this section cannot satisfy himself as to the Magistrate to or before whom such person should be sent or bound to appear, the case shall be reported for the orders of the High Court. [s 187.1] Changes.— Section 187 corresponds to old section 186 with the following changes:—

(1) The words “a Presidency Magistrate, a District Magistrate, a Sub-divisional Magistrate, or, if he especially empowered in this behalf by the State Government” after “when” have been omitted.

(2) The words “Not punishable.....this section” have been substituted for “bailable” and the words “having such jurisdiction” have been inserted.

The material changes introduced are:—

Page 2 of 2 [s 187] Power to issue summons or warrant for offence committed beyond local jurisdiction.—

(1) All judicial Magistrates of the first Class have been empowered to take action under this section. (2) Power to grant bail has been extended to all cases involving any offence other than offences punishable with death or imprisonment for life in order to give the arrested person the benefit of getting bail at or near the place of his arrest instead of his being compelled to go to a far-off place in custody for getting bail.

Cf sections 78 and 81 for similar provisions in another sphere. [s 187.2] Scope and application of section 187.— The section relates to the offences which the Magistrate knows at the outset to have been committed, if at all, outside the limits of his jurisdiction [Amulya, AIR 1923 C 401 : 25 Cr LJ 184]. In such a case, he can compel the person to appear before him and send him to the Magistrate having jurisdiction to inquire into the offence. Section 187 does not override the provisions of sections 70–81 [Sagarmal, AIR 1940 B 397]. Section 187 relates to the power to issue warrant for offence committed beyond Magistrate’s local jurisdiction. It does not apply to a warrant sent by a Magistrate of another place for execution as an external Court as contemplated in section 93A (see now section 105) [PK Roy v State, AIR 1955 Cal 277 : 1955 Cr LJ 791 : 52 Cal WN 300]. As to processes to compel appearance, see chapter VI. It is not essential to the validity of the process that the Magistrate issuing it should be at the time he issues it within the local limits of his jurisdiction. He may issue the warrant from a place in foreign territory [Locha, 1 B 340]. The High Court will not except in exceptional cases exercise its powers under clause 29, Letters Patent [Oriental etc., 2 Weir 146].

For an offence under section 207, Companies Act of a non-payment of dividend, the directors’ residence and the company’s registered office being outside the jurisdiction of the Court, section 187 did not apply [Upendra Kumar Joshi v Maniklal Chatterjee, 1981 Cr LJ (NOC) 12 : 1980 BLJR 668 (Pat)]. End of Document

[s 188] Offences committed outside India.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER XIII JURISDICTION OF THE CRIMINAL COURTS IN INQUIRIES AND TRIALS

The Code of Criminal Procedure, 1973 CHAPTER XIII JURISDICTION OF THE CRIMINAL COURTS IN INQUIRIES AND TRIALS [s 188] Offences committed outside India.— When an offence is committed outside India— (a) by a citizen of India, whether on the high seas or elsewhere; or (b) by a person, not being such citizen, on any ship or aircraft registered in India, he may be dealt with in respect of such offence as if it had been committed at any place within India at which he may be found : Provided that, notwithstanding anything in any of the preceding sections of this Chapter, no such offence shall be inquired into or tried in India except with the previous sanction of the Central Government. [s 188.1] Changes.— Section 188 corresponds to old section 188. The section has been redrafted and altered.

Material changes introduced are:

(1) In clause (a) it has been made clear, that the section applies when offence is committed outside India by a citizen of India, whether on the high seas or elsewhere. (2) In clause (b) it has been made clear, that the section applies to offences committed by foreigners on Indian ships or aircraft. (3) A clear-cut express provision has been made in the proviso to the effect that both the offences mentioned in clauses (a) and (b) shall not be enquired or tried except with the previous sanction of the Central Government. [s 188.2] Scope and application of section 188.— The scheme underlying section 188 is to dispel any objection or plea of want of jurisdiction at the behest of a fugitive who has committed an offence in any other country. If such a person is found anywhere in India, the

Page 2 of 5 [s 188] Offences committed outside India.— offence can be inquired into and tried by any Court that may be approached by the victim. The victim who has suffered at the hands of the accused on a foreign land can complain about the offence to a Court, otherwise competent, which he may find convenient. The convenience is of the victim and not that of the accused. It is not the requirement of section 188 that the victim shall state in the complaint as to which place the accused may be found. It is enough to allege the accused may be found in India [Om Hemrajani v State of UP, AIR 2005 SC 392 : (2005) 1 SCC 617 ].

Indian Courts have jurisdiction against foreigners residing in foreign countries but their acts connected with transaction or part of transaction arising in India [Lee Kun Hee v State of UP, (2012) 3 SCC 132 ; AIR 2012 SC 1007 : 2012 Cr LJ 1551 ].

Section 188 only deals with procedure and does not make it a substantive offence to do an act which would be an offence if committed in India [Narayan Mudhagir, AIR 1935 B 437]. The section refers to crimes committed beyond India [Manabendra, AIR 1933 A 498]. It confers extra-territorial jurisdiction in respect of offences committed outside India by—(a) Indian citizens whether on the high seas or elsewhere.—Or (b) any person not a citizen of India on any ship or aircraft registered in India. It is a corollary to section 4, Penal Code and is its procedural counterpart [Re Antony D’Silva, AIR 1949 Mad 3 : (1949) 50 Cr LJ 70 : 61 Mad LW 503 : 1948 (2) Mad LJ 132]. Section 4(1), ibid and section 188 are extra-territorial in their operation in a restricted sense [Re AB Tonse, AIR 1950 Mad 22 : (1950) 51 Cr LJ 231 : 1949 (1) Mad LJ 395 : 62 Mad LW 246]. A citizen of India committing an offence outside India is subject to the jurisdiction of Indian Courts. But if he was not a citizen at the time of the offence, his subsequent acquisition of Indian citizenship does not confer jurisdiction [Central Bank of India v Ram Narain, AIR 1955 SC 36 : 1955 Cr LJ 152 : 1955 (1) SCR 697 (SC)]. Sections 188 and 4, Code of Criminal Procedure, 1973 would not apply when the person at the time of commission of offence is not a citizen of India [Fatima Bibi v State of Orissa, 2008 Cr LJ 2516 : AIR 2006 SC 2392 ].

Trial is not vitiated because the accused has been brought to India from a foreign territory under an illegal arrest [Savarkar, 35 B 225; see post : “He may be found”]. As to offence on the High Seas and complaint to the Magistrate in Calcutta, [see Rais Alee, 60 C 44 : AIR 1933 C 145].

Territory which formed part of India upon the partition in 1947 became part of Pakistan but by an agreement was administered by India—Indian nationals living in the territory committing offence are triable by the Courts in India [Gudder Singh v State, AIR 1954 Punj 37 : 1954 Cr LJ 302 : 56 Punj LR 352 : ILR (1954) Punj 649 ].

In a case, the accused filed an application that the complaint petition filed without obtaining the requisite sanction under section 188, Code of Criminal Procedure, 1973 was bad in law. When the said application was dismissed, the accused filed a fresh petition raising the same contention. It was held by the Supreme Court that the petition cannot be dismissed on the ground of res judicata as principles analogous to res judicata have no application with regards to criminal cases. It was observed that where jurisdictional issue is raised, save and except for certain categories of cases, the same may be permitted to be raised at any stage of the proceedings [Fatima Bibi Ahmed Patel v State of Gujarat, AIR 2008 SC 2392 : (2008) 6 SCC 789 : (2008)3 SCC (Cri) 151 , para 5 at p 2396 (of AIR)].

In a series of cases it has been held that an offence committed outside India by a citizen of India can be investigated by the local police even without prior sanction of the Central Government [Souda Beevi v Sub Inspector of Police, 2012 Cr LJ 58 (NOC) : 2011 (4) Ker LT 52 ; Muhammad Rafi v State of Kerala, 2010 Cr LJ 592 ; 2009 (1) Ker LT 943 ; Vijaya Saradhi Vajja v Devi Sriroopa Madapati, 2007 Cr LJ 636 (AP); Samarudeen v Asst Director of Enforcement, (1999 (2) Ker LT 794 [FB]); S Clara v State of TN, 2008 Cr LJ 2477 (Mad)]. Both husband and wife are Indians residing in USA, Complaint against the husband alleging cruelty is maintainable [Harihar Narasimha Iyer v State of TN, 2013 Cr LJ 378 : Rajesh Gupta v State of AP, 2011 Cr LJ 3506 : 2011 (3) Crimes 236 ].

Section 188 Code of Criminal Procedure, 1973 and also section 4 of the Indian Penal Code, 1860 spell out that if the person committing the offence at that point of time is a citizen of India, then, even if the offence is

Page 3 of 5 [s 188] Offences committed outside India.— committed beyond the contours of India, he will be subject to the jurisdiction of the courts in India. The rule enunciated under the two sections rests on the principle that qua citizens the jurisdiction of courts is not lost by reason of the venue of the offence. However, section 188 of the Code places an interdiction in the enquiry or trial over offences committed outside India by a citizen of India insisting for sanction from the Central Government to do so [PT Abdul Rahiman v State of Kerala, 2013 Cr LJ 893 (Ker)]. [s 188.3] “Offence”.— [See section (2)(n) and Explanation to section 4, Indian Penal Code, 1860]. The offence must be an act or omission punishable by the law in India [Narayan Mudhagir, 59 B 745; Rambharathi, 47 B 907; Gokaldas, AIR 1933 SC 333 ]. A child marriage contracted outside India is not an offence under the relevant Act [Narayan, 37 Cr LJ 211]. Mere intention not followed by an act does not constitute an offence [Baku, 24 B 287]. Indian Penal Code, see sections 3 and 4. [s 188.4] Offence committed in India.— For an offence in India this section does not apply. In prosecution of certain accused persons for offences of conspiracy it was found from the facts that the main accused by his visits to Singapore was exploding the possibilities of carrying out his scheme of earning easy money by having a ship scuttled. But ultimately, an agreement to do illegal acts took place at Bombay between the accused persons and certain persons from Singapore for implementing the said scheme. The offence of conspiracy could be said to have been committed for the first time at Bombay when the aforesaid meeting took place. Mere fact that in the charge-sheet, a wrong inference had been drawn by the prosecution that conspiracy took place at Singapore initially, was not binding on any one. Sanction of Central Government for investigation, trial etc. for the offence as required under section 118 was not necessary in this case [Vinod Kumar Jain v State through CBI, 1991 Cr LJ 669 : (1990) 42 DLT 186 : (1990) 19 DRJ 121 (Del) (PK Behri, J)]. [s 188.5] “Offence committed outside India”.— In this case, it was held that section 188 does not provide the other provision in other chapters of Code of Criminal Procedure, 1973 like the provisions of chapter XII overriding effect and section 3 does not deal with the power of Indian police to investigate the criminal cases which do not take place in India but outside of India [Samarudeen v Assistant Director of Enforcement Trivandarum, 1995 Cr LJ 2825 (Ker) : ILR 1995 (2) Kerala 684 ].

The word “inquiry” used in proviso to section 188 is confined to proceedings before the Magistrate prior to trial alone, but cannot be extended to “investigation” by police. Bar, if any, would operate to inquiry before the Magistrate after the police laid the charge-sheet for the offence [Vijaya Saradhi Vajja v Devi Sriroopa Madapati, 2007 Cr LJ 636 (AP) : 2007 (1) Andh LD (Cr) 96]. [s 188.6] “Citizen of India”.— For definition, see Article 5 of Constitution. Persons who have migrated to India from Pakistan are also citizens of India provided the requirements of Article 6 are satisfied. [s 188.7] “He may be found”.— “Found” means not where a person is discovered but where he is actually present within the jurisdiction of a court otherwise competent even though brought under arrest illegally and against his will [Maganlal, 6 B 622; Savarkar, 35 B 225; Zincke, AIR 1936 N 152; Sahebrao Bajirao v Suryabhan Ziblaji, AIR 1948 Nag 251 : (1948) 49 Cr LJ 376 : 1948 Nag LJ 244 : ILR (1948) Nag 334 ]. The principle is that the Court trying an accused is not concerned with the mode by which he has fallen into the hands of justice [Q v Lopez, 1858, 27 LJMC 48]. An accused appearing after issue of process must be said to be “found” [Pheroze Jehangir Dastoor v State, AIR 1964 Bom 264 : 1964 (2) Cr LJ 533 : 1964 Mah LJ 339 : 66 Bom LR 225].

The Court where the complaint may be filed and the accused either appears voluntarily pursuant to issue of process or is brought before it involuntarily in execution of warrants is a competent court within the meaning of section 188, Code of Criminal Procedure, 1973 [Om Hemrajani v State of UP, 2005 Cr LJ 665 (668) (SC) : AIR 2005 SC 392 : 2004 (4) Crimes 393 ].

The scheme underlying section 188 is to dispel any objection or plea of want of jurisdiction at the behest of a fugitive who has committed an offence in any other country. If such a person is found anywhere in India, the

Page 4 of 5 [s 188] Offences committed outside India.— offence can be inquired into and tried by any Court that may be approached by the victim. The victim who has suffered at the hands of the accused on a foreign land can complain about the offence to a Court, otherwise competent, which he may find convenient. The convenience is of the victim and not that of the accused [Om Hemrajani v State of UP, AIR 2005 SC 392 : 2005 Cr LJ 665 : (2005) 1 SCC 617 : 2004 (4) Crimes 393 (SC)].

An accused on bail in a sessions case absconded and was brought from London under the Fugitive Offenders Act to stand trial.—Held he could also be arrested and tried by a Magistrate for another offence [Mobarik Ali Ahmed v State of Bombay, AIR 1957 SC 857 : 1957 Cr LJ 1346 : 1958 SCR 328 ].

A person in the Indian army while on service committed a murder at Cyprus. The Agra Court where he was accused of the offence had jurisdiction [Sarmukh, 2 A 218]. Persons having Indian citizenship alleged to have committed offence in Portuguese territory and found in India could be tried in India [Daya Bhima, 13 B 147]. [s 188.8] Proviso.— The proviso has been substituted for former proviso 1 and proviso 2 has been omitted. Under the former proviso 1, for making enquiry into an alleged offence if committed in former Indian States certificate from the political agent and if committed outside India altogether previous sanction of the provincial government was required. Since the section now applies mainly to offences committed by Indian citizens in foreign countries or by foreigners on Indian ships or aircraft, previous section of the Central Government is required. In the rulings on the former proviso given below, “sanction” should be read for “certificate”.

The words “notwithstanding...preceding section” clearly indicate that sections 177– 185 are controlled by section 188 [Verghese, AIR 1947 M 352 : Sana Mathur, AIR 1930 B 155]. So if an offence or part of an offence or one of the offences is committed beyond India, the certificate mentioned is essential to give jurisdiction to a Court in India [Fakhrullah, AIR 1935 M 423; Narain, 41 A 452; Sana Mathur, supra; Sundara, 11 Cr LJ 439; Re AB Tonse, AIR 1950 Mad 22 : (1950) 51 Cr LJ 231 : 1949 (1) Mad LJ 395 : 62 Mad LW 246; Bichitrananda, 16 C 667; Re Antony D’Silva, AIR 1949 Mad 3 : (1949) 50 Cr LJ 70 : 61 Mad LW 503 : 1948 (2) Mad LJ 132; see notes to section 177 ante]. The object of the certificate is to prevent the accused being tried over again in two different places [Jairamdas, AIR 1934 SC 96 ]. Section 188 overrides section 179 in any case in which section 188 is applicable [Ludur, 36 Cal WN 456, 459]. Section 188 does not apply to cases tried in Admiralty jurisdiction and no sanction is necessary [Fernandez, AIR 1936 SC 3 ].

The proviso to section 188 is a fetter on the powers of the investigating authority to inquire into or try any offence mentioned in the earlier part of the Section, except with the previous sanction of the Central Government. The fetters, however, are imposed only when the stage of trial is reached, which clearly indicates that no sanction in terms of section 188 is required till commencement of the trial. It is only after the decision to try the offender in India is felt necessary that the previous sanction of the Central Government will be required before the trial can commence [Thota Venkateswarlu v State of AP, AIR 2011 SC 2900 : (2012) 1 Mad LJ 341 (SC) : 2011 (9) Scale 603]. [s 188.9] Sanction.— The proviso indicates that it is not governed by sections 179–185, but in turn itself controls them [Verghese, AIR 1947 M 352]. It applies whether the offence is committed in any Indian State (before independence) or in any other foreign territory [Chellaram, 14 Cr LJ 298 (offence in Spain)]. The certificate is a pre-requisite and in its absence there can be no enquiry or trial in India of an offence committed beyond India [Kalicharan, 24 A 256; Ramsundar, 19 A 109; Narain, 41 A 452; Nandu, 42 A 89; Katha Perumal, 13 M 423; Fakhrullah, AIR 1935 M 326; Narayanswami, AIR 1933 M 461; Sreeramamurthi, AIR 1935 M 189; Sasadhar, 35 Cal WN 1082; Baku, 24 B 287; Buta, 7 L 369; Ram Pd, 31 Cr LJ 364; Md Zaman, AIR 1945 O 231]. Absence of certificate cannot be cured by section 465 [Md Zaman, AIR 1945 O 231]. Cognizance can be taken of a case although its further progress depends on the production of the certificate [Harnarayan, AIR 1940 N 245; 41 Cr LJ 645; Allibhoy, AIR 1925 SC 88 ]. Absence of certificate during the earlier stages of a trial is a mere irregularity and not fatal [Md Qasim, 16 L 73 : 36 Cr LJ 430]. No particular form of certificate is required except an expression of opinion that case should be tried in India [Bhaiji, AIR 1934 B 41]. As to who should sign the certificate [see Ruliya, AIR 1926 L 609; Bhaiji, supra].

Page 5 of 5 [s 188] Offences committed outside India.— Any investigation of an offence, punishable under the Indian Penal Code and alleged to have been committed outside India by an Indian Citizen will not require sanction of the Central Government under section 188, Code of Criminal Procedure, 1973 [Mohammad Rafi v State of Kerala, 2010 Cr LJ 592 (595-96) (Ker)].

The allegations contained in the complaint were regarding the occurrence in the USA. The cognizance of offence taken by the Magistrate without previous sanction of the Central Government was bad in law. [Rajesh Gutta v State of AP, 2011 Cr LJ 3506 (3511) (AP) : 2011 (5) RCR (Criminal) 452].

Subsequent sanction does not validate proceedings. See same heading under section 196, post, sanction is a condition requisite for prosecution [Vinod Kumar Jain v State through CBI, (1991) Cr LJ 669 : (1990) 42 DLT 186 : (1990)) 19 DRJ 121 (Del)]. [s 188.10] Scope of trial of Section 188.— The trial is not restricted to the charge in the certificate, but covers offences disclosed upon the facts stated in the certificate [Krishna, 33 A 514; Sessions Judge, 11 Cr LJ 531]. Certificate given cannot be recalled [Nazir, 13 Cr LJ 537]. [s 188.11] Certificate when not necessary.— Opinion sent from foreign territory through post to India by an Indian citizen on his own account is “imprisonment” and certificate is not necessary [Ludur, 35 Cal WN 456]. Dacoity committed in India but murder soon after in a place outside India.—Charge of dacoity could be tried without certificate [Punjab, AIR 1933 L 977] : Accused a resident of Multan (now in Pakistan) committed theft in November 1947 from a bank there which had its head-office in India and then migrated to East Punjab.—Held he could not be tried in East Punjab even with the sanction of the Government as he was not a citizen of India at the time of the offence [Central Bank of India v Ram Narain, AIR 1955 SC 36 : 1955 SCR 697 : 1955 Cr LJ 152 affirming AIR 1952 Punj 178 ]. Prosecution for bigamy committed outside India cannot be inquired into or tried in India except with the previous sanction of Central Government [Ranjit v Parul Hore, 1980 Cr LJ (NOC) 57 (Cal) : 1979 (1) Cal HN 414 : 83 Cal WN 536]. End of Document

[s 189] Receipt of evidence relating to offences committed outside India.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER XIII JURISDICTION OF THE CRIMINAL COURTS IN INQUIRIES AND TRIALS

The Code of Criminal Procedure, 1973 CHAPTER XIII JURISDICTION OF THE CRIMINAL COURTS IN INQUIRIES AND TRIALS [s 189] Receipt of evidence relating to offences committed outside India.— When any offence alleged to have been committed in a territory outside India is being inquired into or tried under the provisions of Section 188, the Central Government may, if it thinks fit, direct that copies of depositions made or exhibits produced before a judicial officer in or for that territory or before a diplomatic or consular representative of India in or for that territory shall be received as evidence by the Court holding such inquiry or trial in any case in which such Court might issue a commission for taking evidence as to the matters to which such depositions or exhibits relate. [s 189.1] Changes.— Section 189 corresponds to old section 189. The section has been redrafted and altered.

Material changes introduced are:

(1) Reference to State Government has been replaced by Central Government since the Central Government has been made the sanctioning authority in section 188. (2) The expression “political agent” has been replaced by “diplomatic or consular representative” in view of the definition of the latter expression in the General

Clauses Act, 1897.

As to Commission, See chapter XXIII-D post. End of Document

[s 190] Cognizance of offences by Magistrates.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER XIV CONDITIONS REQUISITE FOR INITIATION OF PROCEEDINGS

The Code of Criminal Procedure, 1973 CHAPTER XIV CONDITIONS REQUISITE FOR INITIATION OF PROCEEDINGS [s 190] Cognizance of offences by Magistrates.— (1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub-section (2), may take cognizance of any offence— (a) upon receiving a complaint of facts which constitute such offence; (b) upon a police report of such facts; (c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed. (2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub-section (1) of such offences as are within his competence to inquire into or try. [s 190.1] STATE AMENDMENTS IN SECTION 190 Punjab.—

The following amendments were made by Punjab Act No. 22 of 1983 (w.e.f. 27- 6-1983).

S. 190-A.—

After Section 190, section 190A inserted—

“190A. Cognizance of offences by Executive Magistrates.—

Subject to the provisions of this Chapter any Executive Magistrate may take cognizance of any specified offence—

(a) upon receiving a complaint of facts which constitute such offence;

Page 2 of 34 [s 190] Cognizance of offences by Magistrates.— (b) upon a police report of such facts; (c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.”

Union Territory of Chandigarh.—The following amendments were made by (Punjab Amendment) Act, 1983 (Act 22 of 1983).

S. 190-A.—After section 190, insert as under—

“190A. Cognizance of offences by Executive Magistrates.—Subject to the provisions of this Chapter any Executive Magistrate may take cognizance of any specified offence—

(a) upon receiving a complaint of facts which constitute such offence; (b) upon a police report of such facts; (c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.” COMMENTS [s 190.2] Changes.— Section 190 corresponds to old section 190 with the following changes :

(1) In para 1 of sub-section (1) the words “Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under subsection (2)” have been substituted for “Except as hereinbefore provided, any Presidency Magistrate, District Magistrate or Sub-divisional Magistrate specially empowered in this behalf.” (2) In clause (b) the words “police report of such facts” have been substituted for “report in writing of such facts made by any police officer”. (3) In clause (c) the words “or suspicion” after “knowledge” have been omitted. (4) Old sub-section (2) and (3) have been redrafted and consolidated into sub-section (2).

Material changes introduced are:

(1) All judicial Magistrates of the first class have been empowered to take cognizance of any offence, leaving the judicial Magistrate of the second class to be empowered in this behalf under sub-section (2). (2) In clause (b) the words “police report” have been substituted for the old expression, to mean the “police report” as has been defined in section 2(r) leaving other kinds of report by police officer to be treated as complaints.

Page 3 of 34 [s 190] Cognizance of offences by Magistrates.— (3) In clause (c) the words “or suspicion” have been omitted as Law Commission did not think it wise that the judicial Magistrate should act on suspicion. [s 190.3] Scope and application of section 190.— This section states the various ways in which a Magistrate can take cognizance of an offence, i.e., take notice of an allegation of commission of offence with a view to taking some kind of action provided in the Code to bring the offender to justice. Cognizance can be taken in three ways: (a) upon a complaint [see section 2(d)]; (b) upon a police report [see section 2(r)] and (c) upon other information or Magistrate’s own knowledge. If the report falls within (b) then the procedure under section 251A (now sections 238–243) must be followed. If it falls within clauses (a) and (c) then the procedure under section 252 (now section 244) must be followed [Pravin Ch Mody v State of AP, AIR 1965 SC 1185 : 1965 (2) Cr LJ 250 ]. In the case of a complaint, the complainant and his witnesses present, if any shall be examined on oath (section 200). Criminal offence may be taken to the Court by two parallel agencies—by lodging FIR before the police (in cognizable cases) or by making a complaint before a magistrate. Although ordinarily a complaint before a magistrate made in respect of noncognizable offence, there is no legal bar in filing a complaint about a cognizable offence straining away instead of loading information in the thana a first for purpose of investigation and final report under section 173. Even a prosecution for a grave crime may be made by a complaint by a private party [Re Seeni Ammal, AIR 1960 Mad 573 : 1960 Cr LJ 1641 : 72 Mad LW 480 : 1960 (2) Mad LJ 507 : 1960 Mad LJ (Cri) 788]. The object is to ensure the freedom and safety of the subject in that it gives him the right to come to the Court if he considers that a wrong has been done to him or to the Republic and be a check upon police vagaries [Chinnaswami Reddiar v K Kuppuswamy, AIR 1955 Mad 534 : 1955 Cr LJ 1264 : 1955 Mad WN 167; Mahabir Prasad Agarwala v State, AIR 1958 Ori 11 : 1958 Cr LJ 63 : 23 Cut LT 395]. The complainant has the choice as to whether a case should be started as a complaint case or a police case, as in the event of an acquittal in the former case, he gets a right of appeal under section 378(4) [Hrushikesh v Krushna Chandra Ghadei, AIR 1958 Ori 104 : 1958 Cr LJ 655 : 24 Cut LT 32]. The three grounds for acting under section 190 are not mutually exclusive. Cognizance can be taken upon two or more grounds [Sankarlal Bholaram v Mohammad Ayyub Madaran Momin, AIR 1960 Bom 116 : 1960 Cr LJ 326 : 61 Bom LR 1642 : 1959 Nag LJ 515 ].

The police report clause (b) may be either of a cognizable or non-cognizable offence (investigated under section 155). After they submit the final report of investigation, the Magistrate either takes cognizance and initiates proceedings or passes any other order he thinks fit. When cognizance is taken under clause (c), the accused has the right to have his case tried by another Magistrate (section 191).

In taking cognizance, the Magistrate exercises a judicial function. Magistrate can refuse to take cognizance if he is satisfied that the complaint, case diary and statements of witnesses recorded under sections 161 and 164, do not make out any offence. However, he cannot appreciate and weigh the evidence and the balance of probability in order to reach a conclusion as to which evidence is acceptable [Ajay Kumar Parmar v State of Rajasthan, AIR 2013 SC 633 : (2012) 12 SCC 406 ].

Where the Magistrate takes cognizance by rejecting the report of the investigating agency and the order is wellreasoned and shows due application of mind, superior Court would refuse to interfere. Order taking cognizance can be interfered with only if it is perverse or based on no material, but while considering an order taking cognizance, superior Courts are to exercise restraint [Dr Mrs Nupur Talwar v CBI, Delhi, AIR 2012 SC 847 : (2012) 2 SCC 188 : (2012) 1 SCC (Cri) 711 ].

Under section 190, Code of Criminal Procedure, 1973 it is the application of judicial mind to the averments in the complaint that constitutes cognizance. At this stage, the Magistrate has to be satisfied whether there is sufficient ground for proceeding and not whether there is sufficient ground for conviction. Whether the evidence is adequate for supporting conviction can be determined only at the trial [Bhushan Kumar v State (NCT of Delhi), AIR 2012 SC 1747 : (2012) 5 SCC 424 : (2012) 2 SCC (Cri) 872 ].

For taking cognizance of offence, it is not open to the Court to analyse the evidence produced at that stage. The Court has to consider averments made in the complaint or the charge-sheet [Dr Subramanian Swami v Dr. Manmohan Singh, AIR 2012 SC 1185 : (2012)3 SCC 64 : (2012)1 SCC (Cri) 1041 ].

Page 4 of 34 [s 190] Cognizance of offences by Magistrates.—

In case of an offence of dishonour of cheque the complaint allegedly was filed by the power of attorney holder. The power of attorney was mentioned only in the cause title. But it was neither mentioned nor there was any reference to power of attorney in body of complaint. Moreover, it was not even exhibited. In the list of evidence there was just mere mention of “power of attorney” without date or any other particulars. There was no whisper in verification statement about filing of complaints by the power of attorney holder. The order issuing process by Magistrate did not mention perusal of power of attorney. The Apex Court held the order of taking cognizance to be not proper. [AC Narayanan v State of Maharashtra, AIR 2015 SC 1198 : 2015 (2) SCJ 67 ].

The accused allegedly forged letter purported to be issued by regional manager who was the complainant. But there was no evidence on record to prove the allegation. The Apex Court held that the Magistrate rightly concluded that there is nothing sufficient to take cognizance. [Senior Manager (P&D), RICO Ltd v State of Rajasthan, AIR 2017 SC 5268 : 2017 (13) Scale 249 ]. [s 190.4] Territorial restriction.— Power of the Magistrate 1st class to take is not impaired by territorial restriction [Karan Yadav v UOI, (2000) Cr LJ 4530 : 2000 All LJ 2203 : 2000 (28) All Cr R 1449 (All); Trisuns Chemical Industries v Rajesh Agarwal, AIR 1999 SC 3499 : 1999 Cr LJ 4325 : (1999) 8 SCC 686 : JT 1999 (6) SC 618 ; Bhoruka Steel Ltd v Manish N Vora, 2006 Cr LJ 2437 (2438) (Guj) : 2006 (4) RCR (Criminal)366]. [s 190.5] Availability of civil remedy.— Pursuant to agreement between two traders, accused purchaser gave post-dated cheques to the complainant supplier as security against supply of goods. The said cheques were dishonoured on account of stop-payment instructions. The instructions clearly indicated element of cheating. Cognizance taken by the Magistrate under section 406 and section 420, Indian Penal Code, 1860 was held not improper only because civil remedy was available [Ashok Kumar Kejuwal v State of Jharkhand, 2003 Cr LJ 1349 : 2003 AIR Jhar HCR 310 : 2003 (3) Rec Cr R 32 (Jhar)].

Where a prima facie case of cheating under section 420, Indian Penal Code, 1860 is made out, cognizance would not be refused merely because the transaction was a money transaction and case was purely of civil nature [Sanghi Brothers (Indore) Ltd v Gurdev Singh Gyani, 2003 Cr LJ 931 (MP) : 2002 CrLR (SC&MP) 558 : 2003 (2) Rec CrR 510; see also Meenakshi Sundaram Textile Ltd v Gokulchand Rakhabchand, 2002 Cr LJ 4366 (4367) (MP) : 2002 (2) Crimes 432 ]. [s 190.6] Limitation.— “Subject to the provisions of this Chapter” (sections 195–199); see also section 468 regarding limitations which also bars the Court from taking cognizance of an offence after the expiry of period of limitation. Power to take cognizance is not the same as the power to inquire into or try, for a Magistrate may be empowered to take cognizance of an offence, but not to inquire into or try it. “Cognizance” of an offence or a case is quite different from jurisdiction or competence which is given to Courts by the Statutes which create them. A Court may well be a Court of competent jurisdiction in regard to any particular offence or case without being able to take “cognizance” of it [Basdeo, AIR 1945 A 340 : Captain Saiyad Ahmad Agha v State, AIR 1957 MB 115 : 1957 Cr LJ 449 : 1957 Jab LJ (MB) 94 : 1956 MBLR (Cri) 437]. When period of limitation for taking of cognizance of offence is one year, order taking cognizance of offence of three years of incident is barred by limitation. [Upali Surajata Dhal v State of Orissa, 2006 Cr LJ 3097 (3098) (Ori) : 2006 (I) OLR 767 ].

For the purpose of computing the period of limitation under section 468 of the Code of Criminal Procedure, 1973 the relevant date is the date of filing of the complaint or the date of institution of prosecution and not the date on which the Magistrate takes cognizance [Sarah Mathew v Institute of Cardio Vascular Diseases, (2014) 2 SCC 62 : 2014 Cr LJ 586 ].

In case the limitation is expired, the court has no jurisdiction to take cognizance, and if in disregard of provisions the court takes cognizance, the order would not survive and would be liable to be quashed [Hemanta Boro v State of Assam, 2008 Cr LJ 3089 (3095) (Gau) : 2008 (2) GLT 251 ].

Page 5 of 34 [s 190] Cognizance of offences by Magistrates.— In the instant case, the offence alleged in complaint against the petitioner was not a continuous wrong and, therefore, the bar to take cognizance as contemplated under section 468(2)(b), Code of Criminal Procedure, 1973 applied to the complaint lodged and, therefore, taking cognizance of such an offence after more than 11 years was clearly beyond the period of limitation prescribed and was barred by law [Siddharta Sen v Registrar, 2009 Cr LJ 4078 (4083) (Ori) : 2009 (Supp) (1) OLR 267 ].

The filing of a complaint or the initiation of criminal proceedings before a Court and the taking cognizance of the offence or issuing process are distinct and different. So far as the complainant is concerned, as soon as he has filed a complaint before a competent Court of law, he has done everything which is required to be done by him at that stage. Thereafter, it is for the magistrate to consider the matter, apply his mind and to take the appropriate decision of taking cognizance, issuing process or any other action, which the law contemplates. The complainant has no control over the proceedings of the Magistrate. Due to various reasons it may not be possible for the Court or the Magistrate to issue process or take cognizance. But the complainant cannot be penalised for such delay on the part of the Court nor can he be non-suited for the failure or omission by the Magistrate in taking the appropriate action under the code. In a case where the complainant has approached the Court well within the time prescribed by law the proceedings cannot be abruptly terminated for the failure or omission on the part of the Court in taking the above action prescribed by law. If the Court were to penalise the complainant for no fault of his but for the delay or inaction on the part of the Court itself, the Court would be injuring the suitor for no fault of his, thereby attracting the maxim “actus curiae neminem gravabit”(an act of Court shall not prejudice any party). If Section 468 were to be interpreted otherwise it may not survive the test of constitutionality when matched on the touchstone of Article14 of the Constitution of India [Vide Japani Sahoo v Chandrasekhar Mohanti, 2007 Cr LJ 4068 (SC) : AIR 2007 Sc 2762 (2007) 7 SCC 394 : 2007 (3) Crimes 246 ; KP Hameed v State of Kerala, 2008 Cr LJ 1587 (1588-89) (Ker) : 2008 (1) Ker LT 534 : 2008 (1) Ker LJ 440 : 2008 (3) AICLR 134].

Since in the present case, the Metropolitan Magistrate had taken the entire presummoning evidence by 1 Febrauary 2005 well within the limitation period of two years from the date of offence, it cannot be said that the process issued by him to summon the petitioner vide order dated 3 July 2007 was barred by limitation [Dharam Chand Khatter v State (NCT of Delhi), 2010 Cr LJ 1443 (4147, 4148) (Del) : 2010 (4) RCR (Criminal) 740].

Whenever the Court exercises its discretion of taking cognizance of the offence, the same must be by a speaking order indicating the satisfaction of the Court that the delay was satisfactorily explained and condonation of the same was in the interest of justice [K Verugopalan v State of Kerala, 2003 Cr LJ 1427 : 2003 (2) Rec Cr R 728 (Ker)].

While taking cognizance after expiry of period of limitation, the Magistrate has to pass a speaking order after consigning reasons for exercise of the discretion under section 473 of the Code. Where no reasons are given, the, the cognizance and proceedings are liable to be quashed. [Rajani Kant Padhi v State of Orissa, 2011 Cr LJ 381 (385, 387) (Ori) : (2010) 2 OlR 386 ].

Period of limitation is to be determined in view of the date of presentation of the complaint and not with regard to the date when the process is ordered to be issued by the Magistrate against the accused under section 204 of the Code [Hari Jai Singh v Suresh Kumar Gupta, 2004 Cr LJ 3768 : 2004 (4) All CrLR 530 : 2004 (4) Rec Cr R 875 (HP)].

The averments made in the complaint disclosed that the accused agreed to sell the house and received a part of sale consideration and executed the agreement of sale. But after some time the accused sold the house to another person. A private complaint for criminal breach of trust and cheating was filed against the accused within three years from the date of exchange of notice and, therefore, the complaint was not barred by limitation. The permission of Limitation Act were held not applicable to the cases filed against the accused for the offence permissible under section 420, Indian Penal Code, 1860. Order taking cognizance of offence was also held proper [Suresh v Mahadevappa Shivappa Danannavai, 2004 Cr LJ 3580 : 2004 AIR Kant HCR 2427 (Kant)].

Page 6 of 34 [s 190] Cognizance of offences by Magistrates.— [s 190.7] Dismissal of complaint.— If a complaint is dismissed, fresh proceeding may be initiated upon a fresh complaint or upon a revival of the old complaint by the Magistrate on his own initiative or under the order of revisional or appellate authority [Adhitya, 1948 (1) Cal 407 ; see Chitto Adhikari v Vidya Bhushan Sharma, AIR 1952 All 455 : 1950 All WR 81 : 1950 All LJ 2 and post notes to section 203]. A Magistrate can revise his order dismissing a police report under section 173 and start proceedings under section 190 (1) [Uma Singh, 12 P 234; AIR 1933 P 242 : 34 Cr LJ 1198; see section 173 ante]. Delay in filing complaint is no ground by itself for dismissal of complaint. It can be considered in arriving at the final verdict [LR Melwami, AIR 1970 SC 692 ]. [s 190.8] Section not exhaustive.— Section 190 is not exhaustive of the Courts which can take cognizance, or of the materials on which cognizance can be taken. The language of section 190 is in marked contrast with that of sections 133 and 195 to 199 which regulate the competence of the Court and bar its jurisdiction in certain cases except in compliance with the provisions thereof [Ramanand Singh v State of Bihar, AIR 1968 Pat 258 : 1968 Cr LJ 958 ; (HN Rishbud v State of Delhi, AIR 1955 SC 196 , 204 : 1955 Cr LJ 526 (SC), referred)]. Section 190 contains no restriction as to who can file a complaint. [s 190.9] Who can complain: Section 190 contains no restriction as to person.— Cognizance can be taken of an offence under the Companies Act on the complaint of a private person [Muthuveeran, AIR 1942 M 283]; Complaint by a member of company for offences under Indian Penal Code committed by person in relation to company is maintainable. Provisions of Companies Act do not constitute implied bar [N Sundareswaran v KK Babu, 1981 Cr LJ 966 (Ker)]. [s 190.10] Courses open to the Magistrate upon receipt of complaint.— Magistrate may take cognizance of the offence and proceed to record the statements of the complainant and witnesses present under section 200. Therefore, if in his opinion there is no sufficient ground he may dismiss the complaint under section 203 but if there is sufficient ground he may issue process under section 204. However, if he thinks fit and desires to make further inquiry under section 202, he may postpone the issue of process, and either inquire into the case himself or direct an investigation by a police officer or other person. After the inquiry or investigation, as the case may be, he may issue process or dismiss the complaint as he thinks fit [HS Bains v State (UT of Chandigarh), AIR 1980 SC 1883 : 1980 Cr LJ 1308 : (1980) 4 SCC 631 (SC)]. In respect of complaint disclosing offences exclusively triable by a court of session, he may inquire into the case himself but he cannot direct investigation by police officer or other persons [vide section 202 (1) proviso] and according to the view of majority High Courts, as the proviso to section 202(2) is a proviso to the whole section 202 and it is a mandatory provision, he cannot issue process under section 204 or dismiss complaint under section 203 on the basis of his examination under section 200 alone, and he must examine all the witnesses of the complainant on oath before doing so (see notes under section 202 below). [s 190.11] Second complaint.— There is no statutory bar in filing a second complaint on the same facts. But that does not mean that a second complaint on the same facts can be filed as and when the complainant desires to file it. Where the earlier complaint was dismissed without assigning any reason, cognizance on second complaint may be taken under section 204, provided there is sufficient ground for proceeding. There must be exceptional circumstances, such as, where the previous order was passed on an incomplete record or on a misunderstanding of the nature of complaint or it was manifestly absurd, unjust. The second complaint may be entertained where new facts, which could not have been brought on record in the previous proceedings in spite of due diligence, a second complaint then lies. But where the second complaint is on the same facts, it is liable to be dismissed in case a decision had been given against the complainant in the previous matter upon a full consideration of the complainant’s case [Mahesh Chand v B Janardhan, AIR 2003 SC 702 : (2003) 1 SCC 734 : 2003 (1) Crimes 1 (SC)].

Where first complaint has been dismissed by magistrate in default and not on merits, second complaint is maintainable [H Raghavendra Rao v Buekeye Corp (I) Ltd, 2004 Cr LJ 2633 : 2004 AIR Kant HCR 1768 : 2004 (3) Rec Cr R 900 : 2005 (1) Cur Cr R 21]

In this case, Magistrate took cognizance of the offences under sections 498A and 406, Indian Penal Code, 1860. On a complaint filed against the husband. The order passed by the Magistrate taking cognizance of the

Page 7 of 34 [s 190] Cognizance of offences by Magistrates.— offence was set aside by the revisional Court. The said order of revisional Court had become final. The second complaint on the same facts and allegations and thereafter passing of order of cognizance by the Magistrate against the petitioner was held illegal [Shahjad Ali v State of Rajasthan, 2009 Cr LJ 3400 (3405, 3406) (Raj) : RLW 2009 (4) Raj 3185 ]. [s 190.12] Power to order investigation.— On the other hand, in the first instance, the Magistrate may, instead of taking cognizance of the offence, order an investigation under section 156(3) even if the complaint disclose of the offences exclusively triable by a court of session [Devarapalli Lakshminarayana v V Narayana Reddy, AIR 1976 SC 1672 : 1976 Cr LJ 1361 : (1976) 3 SCC 252 (SC)], but once cognizance is taken this procedure cannot be adopted. On the receipt of police report under section 173(2) after investigation, the magistrate may do one of three things: (1) if there is no sufficient ground he may drop action; (2) he may take cognizance of the offence under section 190(1)(b) and issue process without being bound in any manner by the conclusions drawn by the police and (3) he may without issuing process or dropping the proceeding take cognizance of the offence under section 190(1)(a) on the basis of the original complaint which did not get exhausted or totally effaced on investigation being ordered under section 156(3) and proceed to examine the complainant and his witnesses under section 200. If he adopts the third alternative, he may hold or direct an inquiry under section 202, if he thinks fit, and thereafter dismiss the complaint or issue process, as the case may be [Tularam v Kishore Singh, AIR 1977 SC 2401 : 1978 Cr LJ 8 : (1977) 4 SCC 459 (SC); HS Bains, supra].

A Special Judge is deemed to be a Magistrate under section 5(4) of the Prevention of Corruption Act and, therefore, clothed with all the magisterial powers provided under the Code of Criminal Procedure. When a private complaint is filed before the Magistrate, he has two options. He may take cognizance of the offence under section 190, Code of Criminal Procedure, 1973 or proceed further in enquiry or trial. A Magistrate, who is otherwise competent to take cognizance, without taking cognizance under section 190, may direct an investigation under section 156(3), Code of Criminal Procedure, 1973. The Magistrate, who is empowered under section 190 to take cognizance, alone has the power to refer a private complaint for police investigation under section 156(3), Code of Criminal Procedure, 1973 [Anil Kumar v MKAyyappa, 2014 Cr LJ 1 : 2013 (4) Ker LT 125 ].

Once it is noticed that there was no previous sanction, the magistrate cannot order investigation against a public servant while invoking powers under section 156(3), Code of Criminal Procedure, 1973 [Anil Kumar v MKAyyappa, 2014 Cr LJ 1 : 2013 (4) Ker LT 125 ]. [s 190.13] Magistrate empowered.— Any Magistrate of the first class can take cognizance. Under sub-section (2) the Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance of offence under sub-section (1) as he is competent to inquire into or try. If a Magistrate not empowered, takes cognizance under clauses (a) and (b) in good faith, it is not void [section 460(e); Purshottam Jethanand v State of Kutch, AIR 1954 SC 700 : 1954 Cr LJ 1751 ; Walli Md, AIR 1928 L 66], but it is so if he acts under clause (c) [section 461(k)]. District (Chief Judicial) Magistrate cannot authorise a second class Magistrate to take cognizance of offence (of murder) which he cannot try [Bengali Gope v Emperor, AIR (13) 1926 Pat 400 : 27 Cr LJ 704].

Taking of cognizance of offence by Magistrate on basis of private complaint filed during pendency of investigation is not illegal [Sukhdas v State of Rajasthan, 2001 Cr LJ 3138 : 2001 (3) Raj LW 1716 : 2001 (4) Rec Cr R 60 (Raj)].

Taking of “cognizance” on the basis of a “complaint”, is different from that of taking of “cognizance” on the basis of a “police report”. When a Magistrate, on receipt of a “complaint”, decides to examine the veracity or sufficiency of the accusations, made in the “complaint”, in order to determine if process needs to be issued to the offender and, for this purpose, examines the complainant, “cognizance” can be said to have been taken. When a Magistrate applies his mind to a “police report”, submitted under section 173(2)(i), to determine if process needs to be issued against the person, who is accused to have committed an offence, “cognizance” is taken. Thus, “cognizance”, on the basis of a “police report” implies making of mind of the Magistrate if process needs to be issued to the accused; whereas “cognizance”, in a case of “complaint”, means the Magistrate’s application of mind for the purpose of deciding as to whether the “complaint” needs to be proceeded as a

Page 8 of 34 [s 190] Cognizance of offences by Magistrates.— “complaint case”. A Magistrate is not bound to take “cognizance” on the basis of a “complaint” and he has the discretion to straightaway send a “complaint” to the police with direction to register the same as FIR and investigate the case. [James Sebastian v State of Assam, 2008 Cr LJ 3634 (3648) (Gau) : (2008) 3 GLT 13 : (2009) 3 GLR 85 ].

There is no limitation on the power of the Magistrate to direct registration of a complaint as FIR even if the complaint discloses commission of offence, which is exclusively triable by a Court of Session. The foundation for taking cognizance need not necessarily be a complaint or police report for cognizance is possible to be taken even on the basis of information received by a Magistrate or on his own knowledge. When “complaint” within the meaning of section 2(d) is made to a Magistrate, whether in the form or otherwise, such a complaint must be registered as “complaints” and thereafter only the Magistrate may pass, if he deems necessary, order directing the police to register the complaint as FIR and investigate the same. [James Sebastian v State of Assam, 2008 Cr LJ 3634 (3648) (Gau) : (2008) 3 GLT 13 : (2009) 3 GLR 85 ].

Since the offences under sections 393 and 450, Indian Penal Code, 1860 are exclusively triable by sessions court hence Magistrate is not competent to proceed with trial of case [Vinod Kr Shivhare v Tarachand Gupta, 2001 Cr LJ 2970 : 2001 (1) MPLJ 686 (MP)].

At the time of taking cognizance Magistrate has to consider whether the complaint discloses offences against the accused with supporting evidence, but not the defence of accused [Robindra Nath Shrivastava v State of Bihar, 2007 Cr LJ 350 (Patna) : 2006 (3) PLJR 108 ]. [s 190.14] “May”.— One view is that “may” means “must” and the Magistrate is bound to take cognizance of offence disclosed by the complaint. “May” has reference to the three alternatives in clauses (a), (b), (c) [Yakub Sheikh v The King, AIR 1950 Cal 340 : (1950) 51 Cr LJ 1290 : 54 Cal WN 373; AC Samaddar v Suresh Ch Jana, AIR 1949 Cal 197 : (1949) 50 Cr LJ 368 : 53 Cal WN 270; Chitto Adhikari v Vidya Bhushan Sharma, AIR 1952 All 455 : 1952 Cr LJ 827 : 1950 All LJ 2 : ILR (1950) All 1284 ; see Umar, 13 334; Jankidas, 12 B 161; Arula, 12 Cr LJ 463; Radhakrishna, 40 Cr LJ 449]. [s 190.15] “The other view is that he”.— (1) may take cognizance and proceed to examine complainant under section 200 and may direct an inquiry under section 202 instead of issuing process, or (2) may without taking cognizance send it to the police for investigation under section 156(3) [Rabiul, 82 Cr LJ 222; Pulin, 43 Cal WN 653; Superintendent and Remembrancer of Legal Affairs, WB v Abani Kumar Banerjee, AIR 1950 Cal 437 : 1951 Cr LJ 806 ; Mona Panwar v Hon’ble High Court of Judicature of Allahabad, 2011 Cr LJ 1619 (SC)]. The last cited case has been approved by the Supreme Court [Chari RR v State of UP, 1951 SCR 312 : AIR 1951 SC 207 : 1951 Cr LJ (52) 775 ]. The Supreme Court has now held that “may” cannot mean “must” as a complaint disclosing cognizable offences may well justify sending it to the police for investigation under section 156(3). There may also be occasions for taking cognizance by using discretion [Gopal Das Sindhi v State of Assam, AIR 1961 SC 986 : 1961 (2) Cr LJ 39 (SC)]. It may be noticed that in Ramkali, AIR 1968 SC 1 , it has been observed that under section 190(1)(b) the Magistrate is bound to take cognizance of any cognizable offence brought to his notice. The words “may take cognizance” in the context means “must take cognizance”. He has no discretion in the matter, otherwise that section will be violative of Article 14 of Constitution. It appears from the judgment that these observations were made in, and meant to be limited to, the context of that particular case, where the facts set out in the police report disclosed that offence under section 3 of Suppression of Immoral Traffic in Women and Girls Act, 1956 had been committed. The Magistrate in the context could not choose to ignore the cognizable offence under section 3 complained of and merely have recourse to section 18 of the said Act and deprive the person proceeded against of the benefit of a regular trial as well as the right of appeal in the event of conviction. That “may” does not meant “must” is also clear from section 210(3). [s 190.16] “Take cognizance”.— The expression “taking cognizance” has not been defined. When the Magistrate on receiving a complaint applies his mind for proceeding under sections 200 to 203 he is said to have taken cognizance of the offence within the meaning of section 190(1)(a) If he takes action of some other kind, such as issuing a search warrant or ordering investigation by the police under section 156(3) he cannot be said to have taken cognizance of any offence [Devarapalli Lakshminarayana Reddy V Narayana Reddy, AIR 1976 SC 1672 : (1976) 3 SCC 252 :

Page 9 of 34 [s 190] Cognizance of offences by Magistrates.— 1976 Cr LJ 1361 (SC); (Nirmaljit, AIR 1972 SC 2639 ; referred); Mona Panwar v Hon’ble High Court of Judicature of Allahabad, 2011 Cr LJ 1619 (SC)]. Cognizance is usually taken upon complaint when process is issued, but no restricted interpretation can be given to the phrase [Baburao, AIR 1936 B 379] as action in taking cognizance may take the form of refusing to initiate proceedings. Taking cognizance does not involve any formal action or action of any kind, but occurs as soon as a Magistrate applied his mind to the suspected commission of an offence [Sourendra, 37 C 412; Dalu Gaur v Moneswar Mahato, AIR 1948 P 25 : (1947) 48 Cr LJ 347 : 229 IC 262; Gopal, AIR 1943 P 245; Parmanand, AIR 1930 P 30; Mathura, AIR 1934 P 467; Re Raju Thevan, AIR 1966 Mad 349 : 1966 Cr LJ 1141 : 1966 Mad LW (Cri) 12 ; Bhagat Singh v Surinder Kumar, (2004) 11 SCC 622 (624)] for initiating judicial proceedings or taking steps to see whether there is any basis for initiating judicial proceedings [Pannalal Lahoti v Hyderabad State, AIR 1951 Hyd 113 : (1951) 52 Cr LJ 1376 : ILR (1951) Hyd 352 ; Bhajahari Mandal v State, AIR 1956 Cal 385 : 1956 Cr LJ 991 ; Gowri Thimma Reddy v State of AP, AIR 1958 AP 318 : 1958 Cr LJ 606 : 1958 (1) Andh WR 220 : 1958 Mad LJ (Cri) 231; Jagdish Ram v State of Rajasthan, AIR 2004 SC 1734 : 2004 Cr LJ 5008 : 2004 (2) Crimes 296 : (2004) 4 SCC 432 ].

It is only when the Magistrate applies his mind and is satisfied that the allegations, if proved, would constitute an offence and decides to initiate proceedings against the alleged offender, that it can be positively stated that he has taken cognizance of the offence [Fakhruddin Ahmad v State of Uttranchal, 2008 Cr LJ 4377 (4380) (SC) : 2008 AIR SCW 5881 : 2008 (4) Bank Cas 96].

Where the Magistrate took cognizance of offence on charge-sheet submitted after re-investigation and recording of statement of witness, it was held that the cognizance was proper [Devendra v State of UP, 2008 Cr LJ (NOC) 1275 (All) : 2008 (5) All LJ 6 : 2008 (62) All Cri C 143].

Whether the Magistrate can be said to have taken cognizance of the alleged offence in the complaint under section 190(1) of the Code depends upon the purpose for which he applies his mind to the complaint. If it is for the purpose of proceeding with the complaint under the various provisions of sections 200 to 2003, Code of Criminal Procedure, 1973, the Magistrate must be held to have taken cognizance of the offences mentioned in the complaint; on the other hand, if he applies his mind to the complaint only for the purpose of ordering an investigation under section 156(3), he cannot be said to have taken cognizance of the offence [State of Karnataka v Rajashekara, 2010 Cr LJ 611 (613) (Kant) : 2010 (1) Kant LJ 4 [see also Jamuna Singh v Bhadai Singh, AIR 1964 SC 1541 : 1964 (2) Cr LJ 468 ; Nirmaljit Singh Hoon v State of WB, (1973) 3 SCC 753 ; Darshan Singh v State of Maharashtra, (1971) 2 SCC 654 : 1971 SCC (Cri) 628 : 1971 Cr LJ 197 ]].

The word “cognizance” merely means become aware of and when used with reference to a Court or a Judge it connotes to take notice of judicially. It indicates the point when a Court or a Magistrate takes judicial notice of an offence with a view to initiate proceedings in respect of such offence said to have been committed by someone [SK Sinha, Chief Enforcement Officer v Videocon International Ltd, 2008 Cr LJ 1636 (1639) : AIR 2008 SC 1213 : (2008) 2 SCC 492 : (2008) 1 SCC (Cri) 471 ].

Where after the examination of the complainant the Magistrate transfers the case under section 192, Code of Criminal Procedure, 1973, it shows that cognizance of the offence has already been taken [The DirectorGeneral, Sports Authority of India v State of Bihar, 2006 Cr LJ (NOC) 509 (Pat) : 2006 (3) Pat LJR 338 : 2006 (4) East Cri C 45].

Before it can be said that any Magistrate has taken cognizance of any offence under section 190(1)(a), Code of Criminal Procedure, 1973 he must not only have applied his mind to the contents of the petition, but he must have done so for the purpose of proceeding in a particular way as indicated in the subsequent provisions of this chapter, proceeding under section 200 and thereafter sending it for enquiry and report under section 202, Code of Criminal Procedure, 1973 [SKSinha, Chief Enforcement Officer v Videocon International Ltd, 2008 Cr LJ 1636 (1641) : AIR 2008 SC 1213 : (2008) 2 SCC 492 : (2008) 1 SCC (Cri) 471 ].

When a Magistrate considers the question as to whether a police report discloses commission of offence and upon such consideration when he forms the opinion that the investigation discloses commission of offence and

Page 10 of 34 [s 190] Cognizance of offences by Magistrates.— decides to issue process, the Magistrate shall be said to have taken cognizance, inasmuch as he could not have directed issuance of a process without taking cognizance [Rani Narah v State of Assam, 2008 Cr LJ 4048 (4053) (Gau) : 2008 (1) GLT 688 ].

The order passed by the Magistrate do not in so many words reflect the application of judicious mind to the materials produced by the IO along with the charge-sheet except the Magistrate stating that he has perused the records. The order does not reflect as to whether the Magistrate was satisfied about the existence of prima facie case. Though in the charge-sheet, offences punishable under sections 418 and 420 read with 34, Indian Penal Code, 1860 are mentioned, the order of the Magistrate did not specifically indicate as to in respect of which offences he has taken the cognizance as the learned Magistrate has indicated that he has taken cognizance of the offence and not the offences [Behram Bomanji Dubash v State of Karnataka, 2010 Cr LJ 3963 (3970) (Kant) : ILR 2010 Kar 5190 ].

This Court need not undertake an elaborate inquiry at the time of taking cognizance. It is not required that the court passes detailed/reasoned order [Jagdish Ram v State of Rajasthan, 2004 Cr LJ 5008 : 2004 SCC (Cri) 1294 : AIR 2004 SC 1734 : 2004 (2) Crimes 296 ].

The Magistrate is not required to mention the documents, which he took into consideration for satisfying himself to take cognizance [Rakesh Devi v State of UP, 2002 Cr LJ 1225 All]. Where the cognizance order is cryptic; it is liable to be set aside [Satish Rakesh v State of Jharkhand, 2002 Cr LJ (NOC) 290 (Jhar) : 2002 (2) JLJR 389 : 2002 AIR Jhar HCR 874].

Whether the Magistrate has or has not taken cognizance of the offence will depend on the circumstances of the particular case including the mode in which, the case is instituted and the nature of the preliminary action if any taken by the Magistrate. The Magistrate can be said to have taken cognizance on a complaint when on receiving a compliant, he applies his mind for the purpose of proceeding under section 200 and succeeding sections in chapter XV of the Code of 1973. If instead of proceeding under chapter XV, he exercise his discretion, otherwise ordering investigation by the police under section 156(3), Code of Criminal Procedure, 1973 he cannot be said to have taken cognizance of any offence [Nathu Banjara v State of Rajasthan, 1996 Cr LJ 919 (Raj) : (1997) CLR (Raj) 135].

In the present case, the Magistrate has specifically taken cognizance under section 190(1)(c), Code of Criminal Procedure, 1973. There was neither any submission by the complainant that his protest petition be treated as a complainant not any indication was made to that effect. The Magistrate also did not intend to proceed as in a complaint case. Therefore, it cannot be said that the Magistrate has committed any error in exercise of jurisdiction [Deokinandan v State of UP, 1996 Cr LJ 61 : 1995 All LJ 1604 (All)].

It was alleged that accused with the help of local police and anti-social elements tried to solemnise marriage of son of complainant with a girl forcibly and threatened him. Prima facie case, was made out against the accused, and, therefore order taking cognizance against accused was held proper [Bipad Taran v State of Jharkhand, 2004 Cr LJ 4534 : 2004 AIR Jhar HCR 2925 : 2004 (2) JCJR 251].

Nothing seemed to be there to show that the petitioners had fraudulent or dishonest intention at the time of making promise. In such a situation, if a cheque was dishonoured it would never mean that intention was there to cheat complainant from the beginning. The complainant never seemed to have averred in the complaint that the petitioners were in charge of and responsible for the conduct of the affairs of the company and as such they were not liable to be prosecuted under section 138 of the NI Act. Order taking cognizance under section 420 of Indian Penal Code, 1860 and section 138 of NI Act were liable to be quashed [Laju Chandumal Chanrai v State of Jharkhand, 2010 Cr LJ 1204 (1206, 1207) (Jhar) : 2010 (5) RCR (Criminal) 749].

In the instant case, the complainant wife whose marriage had alreadybeen dissolved by order of family Court alleged that her husband has committed offences under section 498A, Indian Penal Code, 1860 and sections 3

Page 11 of 34 [s 190] Cognizance of offences by Magistrates.— and 4 of Dowry Prohibition Act. The complainant stated in evidence that she was not living with the husband and she would not claim maintenance. The complaint was filed after lapse of 1½ years only to harass the husband. It was held that the cognizance of offences was liable to be quashed [Ramlal Mahto v State of Jharkhand, 2009 Cr LJ (NOC) 921 (Jhar)].

In the instant case the complaint in respect of offence of cheating and criminal breach of trust alleged that the accused had to pay Rs 35 lakh for transfer of shares of complainant and her family members made only past payment and did not pay the rest amount. It was found that the said allegations were added later on through manipulations. There allegations were not there in the original complaint petition. The complaint had committed forgery and hence no case was made out against accused petitioner [Lalan Prasad v State of Jharkhand, 2004 Cr LJ 3622 : 2004 AIR Jhar HCR 2417 : 2004 (4) All Cr R 462 (Jhar)]. Where on a complaint for offences under sections 307, 406, 420 of Indian Penal Code, 1860. Wherein the petition under section 107, Code of Criminal Procedure, 1973 was filed next day of occurrence, there was no mention of the assault the cognizance was held erroneous [Akhtar Hussain v State of Jharkhand, 2003 Cr LJ (NOC) 57 : 2002 (2) East CrC 483 : 2003 AIR Jhar HCR 242].

In the complaint apart from the company, five persons were shown as accused. However, in the charge-sheet subsequently filed, the company namely Oriental Floratech India Ltd, is not arraigned as accused but only the individuals who are stated to be the Chairman, Directors and officials of Oriental have been arraigned as accused persons. In the absence of any prima facie material to indicate the individual overt acts said to have been committed by these petitioners, the Magistrate could not have taken cognizance of the alleged offences against these petitioners as they cannot be saddled with the criminal liability by application of principles of vicarious liability. Therefore, the order taking cognizance of the offence alleged and the order directing issue of summons to the petitioners herein is perverse and illegal and is without any basis [Behram Bomanji Dubash v State of Karnataka, 2010 Cr LJ 3963 (3977) (Kant) : ILR 2010 Kar 5190 ].

If a case is at the initial stage, the application of section 460, Code of Criminal Procedure, 1973 at this stage is not justifiable because this is applicable only when there is same progress in the case. [Om Prakash v State of Rajathan, 1999 Cr LJ 2935 (Raj)].

For taking cognizance on complaint under clause (a), filing of FIR is not necessary [Manmatha Kumar Jena v Sanjukta Jena, 2003 Cr LJ 3772 (Ori) : 2003 (4) Crimes 100 : (2003) 25 OCR 579 : 2003 (2) Ori LR 118 ].

A Magistrate cannot take cognizance of an offence on a private complaint when he has already taken cognizance on basis of police report of same case and committed the case to sessions judge, as after its submission to sessions judge, magistrate becomes functus officio under section 190 of Code of Criminal Procedure, 1973 [Hira Lal v State of Rajasthan, 1999 Cr LJ 3450 (Raj) : 1999 (1) WLN 100 ].

Cognizance is taken of an offence and not as against an offender [Byaya Das v State of Orissa, 2003 Cr LJ 1621 (Ori); Manojbhai Bhagwandas Shah v State of Gujarat, 2002 Cr LJ 2134 (Guj) : 2002 (2) Guj LR 1052 : 2002 (2) Cur CrR 353 (see below)]. So when by acceptance of a police report that offence under section 302 is true but there is no evidence, the Magistrate discharged the accused, he took cognizance of the offence [Jiban Krishna Samanta v State, AIR 1955 NUC 665 : ILR 1950 (2) Cal 66 : AIR 1955 NUC 665 ]. Cognizance of the point when a magistrate first takes judicial notice of an offence. It is a different thing from initiation of proceedings. Cognizance does not necessarily mean the commencement of proceedings against any one [Gopal, supra; E Pedda Subba Reddy v State, AIR 1969 AP 281 : 1969 Cr LJ 1025 : 1969 (1) Andh LT 174 : 1968 Mad LJ (Cri) 430]. Institution of a case is an act of a suitor while taking cognizance is an act of the Court [Badri Prasad Gupta v Kripa Shaker Tiwari, AIR 1967 All 468 : 1967 Cr LJ 1255 : 1967 All LJ 317]. The meaning of “cognizance” has been discussed in many other cases [see Ananata, 17 Cal WN 795; Lachmi Narain, 30 Cr LJ 134; Carrick, AIR 1941 P 395; Harnarayan, 41 Cr LJ 645; Baldeo, AIR 1933 P 267; Konda, 41 M 246; Hafizar, 44 Cal WN 1114]. Taking cognizance is a mental act. It is also a judicial act. Taking cognizance ordinarily means that the Magistrate has come to the conclusion that there is a case to be inquired into [Shivangowda v Veerappa, AIR 1964 Mys 129 : 1964 (2) Cr LJ 41 ]. In a case under section 471, Indian Penal Code, 1860 the magistrate can take cognizance even without the original document on record if he feels that

Page 12 of 34 [s 190] Cognizance of offences by Magistrates.— there is a case to be tried [Madanmohan Sharma v Renuka Sharma, 1981 Cr LJ 1301 : 1981 Pat LJR 303 : 1981 BLJR 509 (Pat)].

Where the magistrate took cognizance against the applicant and issued summons for trial under sections 3/7 of Essential Commodities Act by an order on printed performa by filling up blanks, it was held that the Magistrate did not apply his mind and thus the order was liable to be set aside [Ankit v State of UP, 2010 Cr LJ (NOC) 342 (All)].

The expression “cognizance of the offence” in its broad and literal sense, means taking notice of an offence and would include the intention of initiating judicial proceedings against the offender in respect of that offence or taking steps to see whether there is any basis for initiating judicial proceedings or for other purposes. The word “cognizance” indicates the point when a magistrate first takes judicial notice of an offence. Initiation of proceedings is entirely different from taking cognizance [K Venugopalan v State of Kerala, 2003 Cr LJ 1427 : ILR (Ker) 2003 (1) Ker 605 : 2003 (2) Rec Cr R 728 (Ker)].

Where the magistrate, after discussing the case in detail was satisfied that offence had been committed and came to the conclusion that the final report submitted by police was not acceptableit was held that summons were properly issued and that omission of particular word “that he has taken cognizance” would not vitiate the proceedings [Vikas Yadav v State of UP, 2009 Cr LJ (NOC) 1086 (All)].

The moment the Magistrate looks into the petition of complaint for the purpose of making over the same for enquiry a trial to another Magistrate under section 192, he takes cognizance of the case. No formal action is required [Md Abdulla Khan v State of Bihar, 2002 Cr LJ 3875 (Pat) : 2002 (1) Pat LJR 639 : 2002 (1) East CrC 302 ].

Where the order taking cognizance of offence under sections 442, 427, 506, 201 of Indian Penal Code, 1860 did not show any application of judicial mind to facts and evidence produced by prosecution: It was held that the said order being in a mechanical manner and guided merely by charge-sheet was liable to be set aside [Bishnu Mohan Mohapatra v State of Orissa, 2009 Cr LJ 1151 (Ori)].

In the instant case, the Magistrate while taking cognizance of the complaint revealed that the Magistrate had applied his judicial mind to the entire allegations contained in the complaint and only thereafter being satisfied that a prima facie case has been made out took cognizance of the offence. The Magistrate had passed a detailed order even for taking cognizance of the complaint. It was held that the non-filing of the documents mentioned in the list of documents appended to the complaint had not vitiated the cognizance taken by the Magistrate [J Jayalalithaa v Assistant Commissioner of Wealth-tax, (Central Circle II-2, Chennai, 2009 Cr LJ 3114 (3125) (Mad) : 2009 (2) Mad LJ (Cri. 669 : 2009 (1) Mad LW (Cri) 459 ].

Where from the allegations in the complaint the intention of the accused prima facie appeared to facilitate commission of an offence, order taking cognizance of offence under section 278 of IT Act was held proper [Satyaban Roy v State of Jharkhand, 2009 Cr LJ (NOC) 1108 (Jhar)].

Before a Magistrate can be said to have taken cognizance under section 190(1)(a) he must not only have applied his mind to the complaint but must have done so far proceeding in a particular way under the subsequent provisions of chapters XIII and XIV—Eg, under section 200 for inquiry and report. When he applies his mind not for the above purpose but for taking action of some other kind, e.g.; investigation by the police under section 156(3) or the issue of a search warrant, he cannot be said to have taken cognizance of the offence [Superintendent and Remembrancer of Legal Affairs, WB v Abani Kumar, AIR 1950 Cal 457 : (1951) 52 Cr LJ 806 ] and this has been adopted by the Supreme Court as the correct view [Chari RR v State of UP, 1951 SCR 312 : AIR 1951 SC 207 : 1951 Cr LJ 775 (read on in Shankar, AIR 1959 B 437); Narayandas Bhagwandas Madhavdas v State of WB, 1960 (1) SCR 93 : AIR 1959 SC 1118 : 1959 Cr LJ 1368 ; State of Assam v Abdul Noor, AIR 1970 SC 1365 : 1970 Cr LJ 1264 : (1970) 3 SCC 10 (SC); Ajit Singh v State, AIR

Page 13 of 34 [s 190] Cognizance of offences by Magistrates.— 1970 Del 154 FB : 1970 Cr LJ 1075 ; State of Bihar v Sakaldip Singh, AIR 1966 Pat 473 : 1967 Cr LJ 111 : ILR 46 Pat 138]. A step taken in the investigation of an offence is not taking cognizance of it, e.g., the issue of a search warrant, or the permission to investigate a non-cognizable offence under section 155(3). It is impossible to define what is meant by taking cognizance. It is only when a Magistrate applies his mind for proceeding under section 200 and subsequent sections of chapter XV or under section 204 of chapter XVI that it can be positively stated that he had applied his mind and taken cognizance [Narayandas, supra (Approving Abani, AIR 1950 C 437 and Chari, supra; Gopaldas Sindhi v State of Assam, AIR 1961 SC 986 : 1961 (2) Cr LJ 39 (SC); Jamuna Singh Bhadai Sah, AIR 1964 SC 1541 : 1964 (2) Cr LJ 468 (SC)].

In a case where the accused conspired with co-accused and changed the entries in service record of complainant, considering the facts and circumstances, the Court set aside the order taking cognizance against accused and co-accused and issuing warrant of arrest against them [Karni Singh Rathore v State of Rajasthan, 2010 Cr LJ (NOC) 377 (Raj)].

Where the Magistrate took cognizance of offence taking into consideration the case diary, statement of witnesses recorded under section 161, Code of Criminal Procedure, 1973, which prima facie disclosed the commission of offence it was held the magistrate had not considered the extraneous material and that the order of magistrate was not illegal [Sheoraj Singh Ahlawat v State of UP, 2009 Cr LJ (NOC) 874 (All) : 2009 (3) All LJ 509].

It was alleged that the petitioner Managing Director of company had violated certain rules of the Contract Labour (Regulation and Abolition) Act, 1970. Only vague statements were made that the petitioner and all the accused person had committed irregularities. There was no particular allegation against the petitioner. The order taking cognizance of offence, against petitioner on vague allegation was held liable to be set aside [AK Sahay v State of Jharkhand, 2009 Cr LJ (NOC) 1251 (Jhar)].

In a case, the accused was alleged to have cheated the complainant by refusing to return the ornaments of the complainant kept in his safe custody. It was held that in the absence of allegation that the accused induced the complainant to part with the ornaments, the cognizance under section 420 would be liable to be quashed [Nawab Mir Barkat Ali Khan Bahadur v Azaz Ali, 2003 Cr LJ (NOC) 33 : 2002 (2) Andh LT (Crl) 310 ].

In this case the petitioners were sought to be prosecuted as principal employer for violation of Contract Labour (Regulation and Abolition) Act, 1970 and Rules framed thereunder. Held, on reading the complaint it was enident that no single word had been whispered to show that the petitioner were the persons responsible for supervision and control of the establishment. The petitioners were places in Mumbai and Kolkata in the different capacity, were not responsible for supervision and control of the establishment. Order taking cognizance and issuance of process against the petitioners could not be sustained and was liable to be set aside [Chandra Kochhar v UOI, 2009 Cr LJ 4720 (4722) (Jhar) : 2009 (3) AIR Jhar R 355].

In the instant case, the Magistrate took cognizance of the offences punishable under sections 341, 323, 324, 427 and 34 of the Penal Code. A petition filed by the informant sought taking of cognizance under section 395, Indian Penal Code, 1860. The Magistrate directed inquiry under section 202, Code of Criminal Procedure, 1973. On the basis of not only the materials collected during enquiry under section 202, Code of Criminal Procedure, 1973 but also considering the materials collected during investigation by the Police in the GR case, the Magistrate passed the order taking cognizance of offences under sections 325 and 395, Indian Penal Code, 1860. It was held that the procedure adopted by the magistrate was irregular—The High Court, however, declined to quash the order as it did not affect the ultimate result of case [Raghunath Das v State of Orissa, 2003 Cr LJ 4274 : 2003 (96) Cut LT 97 : 2003 (25) OCR 630 (Ori)].

When the magistrate heard counsel, went through the complaint, called for police papers, it could be inferred that he took cognizance and should have examined the complainant under section 200. Section 132 was not a bar at that stage [Badal, 69 Cal WN 306].

Page 14 of 34 [s 190] Cognizance of offences by Magistrates.— The three alternative clauses of sub-section (1) are not mutually exclusive. A Magistrate taking cognizance upon a complaint is not debarred from proceeding upon a simultaneous police report made to him [Bharat, A 1929 P 473, FB : 10 Cr LJ 1056; Mahabir Prasad Agarwala v State, AIR 1958 Ori 11 : 1958 Cr LJ 63 : 23 Cut LT 395 : ILR (1957) Cut 551 ]. He may take cognizance under one or all the three clauses [U Po, AIR 1933 R 271]. Modes of cognizance are discussed in AR Antulay v RS Nayak, AIR 1984 SC 718 : (1984) Cr LJ 647 SC : (1984) 2 SCC 500 : 1984 (1) Crimes 547 (SC).

Where the sub-divisional Magistrate examined the complainant on solemn affirmation and referred the matter for enquiry to another Magistrate it amounted to taking cognizance by SDM. No fresh cognizance could be taken by another Magistrate after receipt of report [SN Dubey v Devi Kant Jha, AIR 1971 Pat 15 : 1971 Cr LJ 77 : 1970 Pat LJR 103 ; (Jamuna Singh v Bhadai Sah, AIR 1964 SC 1541 : 1964 (2) Cr LJ 468 (SC); Krishnadeo Prasad v Mudhni, AIR 1965 Pat 1 FB : 1965 (1) Cr LJ 58 : 1964 BLJR 747 , followed)]. A Magistrate is not debarred from taking cognizance simply because another Magistrate has already done it. In such a case the proper course is to have the case before the Magistrate by transfer [Hari Satya, 50 C 482].

Magistrate can take cognizance only against charge-sheeted accused without resorting to powers conferred under section 319 of Code. [Ranjan Das v State of Orissa, 2001 Cr LJ NOC 67 : (2001) 20 Ori LR 150 (Ori)].

Where the accused was charge-sheeted by court at A which had jurisdiction to investigate into the matter, the parallel proceedings for the same offence were held not permissible and hence the order taking cognizance by Court at B was set aside [Jajati Kesari Biswal v State of Orissa, 2010 Cr LJ (NOC) 359 (Ori)].

Where the charge-sheet contained cognizable offence against some and non-cognizabe offence, against other accused, it was held that cognizance of offence on the basis of charge-sheet was not without jurisdiction [Chamman v State of UP, 2009 Cr LJ (NOC) 1203 (All)].

Where the charge-sheet in the case of alleged assault was filed only against nine accused persons named in the FIR and no charge-sheet was filed against the petitioner, it was held that the Magistrate had no jurisdiction to take cognizance for alleged offences against the petitioner [Md Munif v State of Jharkhand, 2009 Cr LJ (NOC) 929 (Jhar)].

Person not joined as accused in charge-sheet can be summoned as an accused by Magistrate at stage of taking cognizance of offence. [SWIL Ltd v State of Delhi, AIR 2001 SDC 2747 : (2001) 6 SCC 610 : 2001 (4) crimes 124 : 2001 Cr LJ 4173 (SC)].

Where the name of witnesses to be examined by complainant not disclosed in complaint then issuance of process is not sustainable. [Bhika Yaswant Dhangat v Babon Maruti Barato, 2001 Cr LJ 295 : 2001 (4) Bom LR 654 : 2000 (4) Mah LJ 861 (Bom)].

The Magistrate takes cognizance of the offence and not of the fact that it must have been committed by the person charged before him. The case arose out of a rape. The evidence of the victim girl was corroborated by the statements of the witnesses in the FIR. The statement of the informant was also similarly corroborated. The Court held that it could not be said in such circumstances that there was no material before the Magistrate to enable him to take cognizance of the offence. The order was accordingly not quashed [Bijaya Das v State of Orissa, 2003 Cr LJ 1621 : 2003 (24) OCR 390 (Ori)].

There were allegations that the landowner was induced by the accused BPCL that on taking lease of his land he would be granted dealership. He was made to give a bank guaranteed of Rs 4 lacs for the purpose. Finally, the scheme was changed and the dealership was given to some other person. The Court held that it could be said that the intention of the accused was not bona fide since beginning. The order of the Magistrate taking

Page 15 of 34 [s 190] Cognizance of offences by Magistrates.— cognizance was not improper. [Ranjit Pani v State of Jharkhand, 2003 Cr LJ 1736 : 2003 AIR Jhar HCR 417 : 2003 (2) Bank Cas 523 : 2003 (2) Cur Cr R 402 (Jhar)]. [s 190.17] Cognizance and prosecution.— Cognizance of an offence and prosecution of an offender are different things [Samuel, 48 Cr LJ 268]. Section 190 empowers taking cognizance of an offence and not to deal with offenders. The offenders may or may not be known or named when complaint is made and taken cognizance of. Their names may transpire during investigation or afterwards. There is no bar to a Magistrate issuing process against all who subsequently appear to be involved in the offence [see Fateh Md, AIR 1940 SC 97 ; Gopal, AIR 1943 P 245; Nga Chan, 1923 R 31, FB; Mg Thet, AIR 1941 R 30; Assudomal, AIR 1940 SC 100 ; Mehrab, AIR 1924 SC 71 , FB; Sudhir, AIR 1944 P 210; Mathura, AIR 1934 P 467; Vithu, AIR 1939 N 133; Nitai, 40 Cal WN 573; Girdhari, 21 Cal WN 950; Jiban Krishan Samanta v State, AIR 1955 NUC 665 : ILR (1950) 2 Cal 66 ; Fatta v State, AIR 1964 Punj 351 : 1965 (2) Cr LJ 204 : 66 Punj LR 548 : ILR (1964) 2 Punj 214 ]. See also Rukvendra Singh v State of MP, 2004 Cr LJ 1489 : 2004 (16) All Ind Cas 916 : 2004 (1) Crimes 651 : 2004 (4) MPLJ 249 (MP)]. Even if a final report has been accepted by the Magistrate, he is not barred from taking cognizance on a subsequent report provided it mentioned facts constituting the offence [Krishanlal v State, 1976 Cr LJ 1825 (All); (HN Rishbud v State of Delhi, AIR 1955 SC 196 : 1955 Cr LJ 526 (SC); relied on]. Taking cognizance means cognizance of offence and not offenders. Once cognizance is taken it is the duty of the Magistrate to proceed against those offenders not set up by the police [Raghubans Dubey v State of Bihar, AIR 1967 SC 1167 : 1967 Cr LJ 1081 (SC) [Saifur v State of WB, AIR 1962 Cal 133 : 1963 (1) Cr LJ 283 ; Mehrab, AIR 1924 SC 71 , FB; Fatta v State, AIR 1964 Punj 351 : 1964 (2) Cr LJ 204 : 66 Punj LR 548 : ILR (1964) 2 Punj 214 ; Ali Ullah v State, 1963 (2) Cr LJ 66 (All) approved)].

A Magistrate in arresting a person under section 44 does not take cognizance of any offence. Taking cognizance will come subsequently as the case falls within clauses (a), (b) or (c) [Mohan, AIR 1964 Tri 65 ].

Invalid investigation does not necessarily nullify cognizance or trial based thereon. In absence of prejudice to the accused the irregularity is curable under section 465 [State of Haryana v Rugha, AIR 1970 P&H 502 : 1970 Cr LJ 1565 ; (HN Rishbud v State of Delhi, AIR 1955 SC 196 : 1955 Cr LJ 526 (SC); Munnalal v State of UP, AIR 1965 SC 28 : 1964 (1) Cr LJ 11 (SC) relied on)].

The taking of cognizance does not depend upon the presence of the accused in the Court. The order returning the charge-sheet simply because the police did not produce the accused along with the charge-sheet was quashed [State of Maharashtra v Fulchand Dagadoo, 1981 Cr LJ 503 : 1981 CrLR (Mah) : 245 (Bom)].

Magistrate can take cognizance of offence even if the police report is to the effect that no case is made and can ignore the conclusions arrived at by the Investigating Officer [Minu Kumari v State of Bihar, (2007) 1 Mad LJ (Cr) 357 (SC) : 2006 (4) SCC 359]. [s 190.18] Cognizance of offence.— After examining the complainant and witnesses of the case on oath if the Magistrate finds that there are sufficient grounds for initiation of proceedings against the accused person, he can take cognizance against him and said proceedings is in mandatory [Prem Kumar v Nehar Singh, 1995 Cr LJ 2517 (HP)].

When a police report is forwarded to the Magistrate either under sub-section (2) or under section 173, Code of Criminal Procedure, 1973, it is for the Magistrate to apply his mind to the police report and take a view whether to take cognizance of an offence or not to take cognizance. In such case, the High Court has no ground to quash criminal proceedings [Dharmatma Singh v Harminder Singh, 2011 Cr LJ 3591 (3595)(SC) : 2011 (5) Scale 552 ].

Order of the Magistrate refusing to accept final report and taking cognizance of offence are such orders as they are supported by reasons. So, it being a speaking order cannot be vitiated [Vishnu Dutta v Govind Das, 1995 Cr LJ 263 (Raj)].

Page 16 of 34 [s 190] Cognizance of offences by Magistrates.— The accused persons forcibly entered into the house of victim and after gagging her mouth they forcibly took her to some unknown place. The Magistrate had gone through the contents of the case diary including the statements of the victim girl recorded in course of investigation not only by the investigating officer but also by the Judicial Magistrate under section 164, Code of Criminal Procedure, 1973. Such statement had not been contradicted by any subsequent statement made, if any by the prosecutrix. It was held that order of cognizance was proper. [Nagendra Soren v State of Jharkhand, 2011 Cr LJ 567 (568) (Jhar) : 2011 CriLJ 567 ].

In a case, the informant lodged a report of theft crime but after investigation was completed, the Magistrate concluded that a false report was registered by him. Consequently the Magistrate issued process against said informant and took cognizance against him for offence of criminal breach of trust. When the order of taking cognizance of the offence was challenged, High Court held that impugned order was illegal [Jamuna Prasad Das v State of Orissa, 1995 Cr LJ 1408 (Ori)].

In a rape case having regard to the fact that despite several attempts, it had not been possible to collect the semen sample of the accused which is in keeping with the story that vasectomy had been performed earlier and having further regard to the fact that DNA test could not be conducted as the victim refused to give blood samples of herself and child on ground of health. The report filed by the police in final from appears to have been correct procedure. The cognizance taken was not proper and liable to be quashed [Shaktipada Chakraborty v State of Jharkhand, 2006 Cr LJ 324 (326) (Jhar) : 2006(1) RCR(Criminal)591].

In a case of murder, the FIR was lodged against an unknown person. The police investigated the case and submitted charge-sheet against one accused. While differing with the conclusion of the Investigating Officer referred to and placed reliance on the statements of witnesses examined under section 164, Code of Criminal Procedure, 1973 and were not sponsored by the IO. The Magistrate had also considered the materials collected during the investigation. As the Magistrate had taken cognizance considering the irrelevant material, cognizance was not proper [Hare Ram Singh v State of Bihar, 2006 Cr LJ 286 (288) (Pat)].

So far as the question of taking cognizance on supplementary charge-sheet submitted under section 302, Indian Penal Code, 1860 is concerned the cognizance is not taken on a particular section but the cognizance is taken on the case as under section 209, Code of Criminal Procedure, 1973, the case is committed to the Court of session and not an offence under any of the sections or a particular accused. A subsequent addition or deletion in the section and accused can be made subsequent to the taking of cognizance. The subsequent supplementary charge-sheet under section 302, Indian Penal Code, 1860 shall be deemed to have been merged with the case, the cognizance of which was already taken [Satish Rai v State of UP, 2003 Cr LJ 180 (182) : 2002 All LJ 2450 : 2002 (45) All Cr C 958 : 2002 (3) All Cr R 2309 (All)].

Where order taking the cognizance of offence is an interim order, it cannot be quashed by High Court in its exercise of inherent jurisdiction under section 482, Code of Criminal Procedure, 1973. [Vishnu Dutta v Govind Das, 1995 Cr LJ 263 Rajasthan (HC)].

For taking cognizance only prima facie case has to be established. Meticulous examination of probabilities and improbabilities is not required [Brahmachari Lalit Baba v State of Rajasthan, (1997) 1 Crimes 258 : 1997 Cr LJ 19 : 1996 (1) Raj LW 57 : 1996 CrLR (Raj) 626 (Raj)].

Investigation into an offence under section 182, Indian Penal Code, 1860 can be done only on the complaint given by a competent public servant, taking note of the fact that the procedure contemplated is not complied with in line with section 195, Code of Criminal Procedure, 1973, as well as the settled legal position evolved through the decisions of the Apex Court. The cognizance assumed by the Magistrate for the offence under section 182, Indian Penal Code, 1860 is erroneous and not sustainable in law. [EK Palanisamy v Deputy Superintendent of Police, Erode, 2010 Cr LJ 1802 (1805) (Mad)].

Page 17 of 34 [s 190] Cognizance of offences by Magistrates.— Case under Arms Act for illegal possession of arms was registered. After due consideration of FIR, case diary and available record Court was satisfied that prima facie material was available and it took cognizance of the offences. It was held that order taking of cognizance and framing of charge was proper [Mohd Ayub Khanv State, 2007 Cr LJ 3914 (Ori)]. Cognizance taken by Magistrate, where prima facie case was made out, was held proper [Ram Prasad v State, 2007 Cr LJ 3980 (Jhar)]. Magistrate can even take cognizance in respect of persons against whom no challan is filed [Veer Singh v State of MP, 2007 Cr LJ 4506 (MP) : 2007 (3) MPLJ 580 ]. Court cannot take the cognizance of case on basis of material available in original case diary as supplementary final report cannot altogether be ignored [Sri Niwas Prasad v State, 2007 Cr LJ 4498 (Jhar)].

At the stage of taking cognizance, the only consideration before the Court remains is to consider judiciously whether the material on which the prosecution proposes to prosecute the accused brings out a prima facie case or not [Ram Pratap Pandey v State of UP, 2010 Cr LJ 3615 (3618) (All)].

In the instant case the involvement of the petitioner in the complicity of the crime was not reflected in the materials placed before the Court during hearing of the case. Neither the name of the petitioner found place in the FIR nor any of the witnesses had implicated him in his statement made to the police under section 161, Code of Criminal Procedure, 1973, or implicated him as one of the culprits in his substantive evidence in Court. In the circumstances of the case, cognizance was held liable to be quashed [Nilu v State of Orissa, 2004 Cr LJ 2261 : 2004 (97) Cut LT 324 : 2004 (27) OCR 502 (Ori)].

All offences with regard to which evidence has already been collected can be included in a pending case and warrant of arrest can be issued, cognizance can be taken and the accused persons can be tried by the Court of competent jurisdiction. If the Magistrate before whom the case is presently has got no jurisdiction for issuance of warrant, cognizance and trial, the case can be transferred to the Court of competent jurisdiction [Ramakant Singh v State of Bihar, 2006 Cr LJ 4752 (4756) (Pat) : 2006 (1) Pat LJR 42 ].

Where the cognizance of complaint deemed to be taken on the date when the case was posted for enquiry then such cognizance is not barred under section 468(2)(c) of Criminal Procedure Code [Dharmendra Singh v State of Orissa, 2001 Cr LJ 439 : (2000) 19 OCR 565 (Ori)].

Where Magistrate had not taken cognizance as no prima facie case was made out then High Court has no jurisdiction to reverse the order [Bhagirath v Kana Ram, 2000 AIR SCW 4154 : 2001 Cr LJ 122 (SC)].

Taking of cognizance by Magistrate as per direction of special Judge after considering case diary, charge-sheet and original record not alleged [Banshidhar Singh v State of Bihar, 2001 Cr LJ 2964 : 2000 (3) Pat LJR 415 : 2000 (3) East Cr C 1796 (Pat)].

The cognizance taken by the Special Judge (vigilance), in a case of accepting bribe is bad for want of appropriate sanction within the meaning of section 19 of the Prevention of Corruption Act, 1988 or section 197, Code of Criminal Procedure, 1973 [Surendra Nath Swain v State of Orissa, 2006 Cr LJ 462 (463) (Ori) : 2006 (1) Crimes 52 ].

Taking of cognizance of offence against persons expressly discharged not proper [Deep N Yadav v State of Bihar, 2001 Cr LJ 2815 : 2000 (2) Pat LJR 628 : 2000 (2) East Cr C 1353 (Pat)].

Person who has not joined as accused in the charge-sheet can be summoned at the stage of taking cognizance under section 190, Code of Criminal Procedure, 1973. There is no question of applicability of section 319 at this stage [Sunil Ltd v State, 2000 Cr LJ 4173 (SC)].

Page 18 of 34 [s 190] Cognizance of offences by Magistrates.— In case the accused allegedly forcibly took adivasi girl and tried to rape her. The police submitted final report finding the case to be false. On the basis of materials available in the case diary CJM issued notice and took cognizance of the case. Case was investigated by Deputy Superintendent of Police Under SC & ST (Prevention of Atrocities) Act 1988. Prima facie case was made. It was not necessary for the Magistrate to consider the protest petition filed by petitioner. Order of cognizance of Magistrate was proper [Deepak Kumar Lal v State of Jharkhand, 2005 Cr LJ 299 (Jhar) : 2004 (3) BLJR 2027 ].

Magistrate is not bound to accept the negative final report filed by the police and is required to apply his mind independently of the conclusion arrived at by the police upon receipt of a police report under section 173(2) of the Code to take cognizance of an offence under section 190(1)(b) of the Code if there exists a prima facie case to proceed against the accused [Sukharam v State of Rajasthan, 2007 Cr LJ 644 : 2007 (1) Crimes 246 (Raj)]. [s 190.19] “Of any offence”.— The words include both cognizable and non-cognizable offence [Samarth, 1955 BLJR 608 ].

Where the CBI submitted charge-sheet without approval of Central Vigilance Commission, cognizance taken on such a charge-sheet could not be set aside nor further proceedings in pursuance thereof could be quashed [UOI v Prakash P Hinduja, 2000 Cr LJ 3117 (SC)]. [s 190.20] Taking cognizance without application of mind.— Where the court took cognizance and issued process but there is no indication of application of mind to allegation in complaint, the order by Magistrate calling appellant/accused to defend criminal proceedings is liable to be set aside. [S Satyanarayana v Energo Masch Power Engg& Const PL, AIR 2015 SC 2166 ].

Taking of cognizance means application of mind to contents of complaint and taking judicial notice of offence. Mere examination of complainant upon oath does not mean that the Magistrate has taken cognizance of offence. [SR Sukumar v S Sunaad Raghuram, AIR 2015 SC 2757 : 2015 (8) SCJ 153 ].

The complaint under section 138 of the Negotiable Instrument Act, 1881 was filed beyond permissible period. Cognizance of complaint was taken without issuing notice to dispense with such delay of 62 days. The orders issuing summons suffered from non-application of mind to fact that the accused was residing outside the jurisdiction of the court. The Apex Court set aside the order. [KS Joseph v Philips Carbon Black Ltd, AIR 2016 SC 2149 : 2016 (4) Scale 94 ]. [s 190.21] Interference by High Court.— The High Court should not ordinarily interfere with an order taking cognizance passed by a competent Court of law except in a proper case. Furthermore only such High Court within whose jurisdiction the order of subordinate Court has been passed, would have the jurisdiction to entertain an application under Article 227 of the Constitution unless it is established that the earlier cause of action arose within the jurisdiction thereof [Musaraf Hussain Khan v Bhageeratha Engg Ltd, 2006 Cr LJ 1683 (1689) (SC) : (2006) 3 SCC 658 : AIR 2006 SC 1288 : 2006 (2) Cur CC 71]. [s 190.22] Clause (a): “Complaint of facts which constitute such offence”.— Unless the petition presented amount to a “complaint” within section 2(d), the Magistrate cannot act under clause (a) [Subodh Chandra v Jamser Mandal, AIR 1949 Cal 55 : (1948) 49 Cr LJ 635 ]. As to nature of a complaint and who can institute it, see section 2(d), ante. A written complaint falls under (a) and not (c) although the complainant may have stated the facts orally to the Magistrate when he went to the spot [Sahdeo, AIR 1927 A 101]. A complaint need not be in writing [Re Kanhaiyalal Daulatramji, AIR 1965 MP 53 : 1965 (1) Cr LJ 298 : 1965 Jab LJ 117 ]. When the facts set out in the complaint disclose a minor and also a grave offence, the prosecution should ordinarily be for the graver offence [Dholiah, AIR 1931 M 702; Re Govindaswami, AIR 1954 Mad 401 : 1954 Cr LJ 480 : 1954 (1) Mad LJ 455 : 1953 Mad WN 903]. When examination of the complainant or witnesses reveals offence other than those charged in the complaint [Jagat, 26 C 786; Baldeo, AIR 1933 P 297; Abdul Rahman, 5 R 53; Har Prasad v Emperor, AIR 1947 All 139 : (1947) 48 Cr LJ 282 : 1947 All LJ 1 : ILR (1947) All 297 ], or a more serious offence than named [Re KC Manikya, AIR

Page 19 of 34 [s 190] Cognizance of offences by Magistrates.— 1948 Mad 95 : (1948) 49 Cr LJ 30 : 1947 (2) Mad LJ 137 : 1997 Mad WN 492], or that persons other than those mentioned in the complaint are concerned in the offence [Jagat, supra; Charu, 4 Cal WN 367; Bishun, 4 Cal WN 560; Debarbuz, 41 C 1013; Iman, 14 Bom LR 141; Sri Kishen, 26 Cr LJ 1619; Vithu, AIR 1938 N 133; Sudhir, AIR 1944 P 210; Jamuna Singh v Emperor, (1947) 48 Cr LJ 799 (Pat)], the Magistrate may also take cognizance in respect of the other offences or persons. The power, can be exercised also by the Magistrate to whom a case is transferred after cognizance [N Baksi v M Yunus, AIR 1949 Pat 47 : (1948) 49 Cr LJ 612 : ILR 26 Pat 479].

Challan for non-cognizable offence being a complaint according to explanation to section 2(d), the Magistrate can take cognizance on its basis and police officer being a public servant need not be examined under section 200 [Biswanath Sarat v State, 1978 Cr LJ 318 : 82 Cal WN 602 (Cal); Maniyeri Madhavan v State of Kerala, 1981 Cr LJ 569 : 1981 Ker LT 84 : ILR (1981) 1 Ker 492 (Ker)]. When on a previous report to police, investigation of a cognizable offence is pending the Magistrate can take cognizance of the offence on a complaint alleging that the police were delaying the matter in league with the accused [Nilratan Tiwary v Muchi Ram Mandal, 1977 Cr LJ (NOC) 161 (Pat) : 1976 BBCJ 325 ]. The Suppression of Immoral Traffic in Women and Girls Act, 1956 does not bar a complaint by a private party [Shakila v State, AIR 1961 All 633 : 1961 (2) Cr LJ 754 : 1961 All LJ 470 : 1961 All WR 361]. After hearing the complainant, the Magistrate may issue process (section 204), or order an inquiry (section 202) or dismiss it (section 203). A Magistrate has no jurisdiction to take cognizance of an offence upon a complaint filed by a person not authorised to institute prosecution under section 29(1), Prevention of Food Adulteration Act, 1954 and as such he can neither acquit nor convict the accused [State of Kerala v VP Enadeen, AIR 1971 Ker 193 , FB].

Where the Magistrate rejects a police report and takes cognizance on the basis of the evidence of witnesses, it would be a cognizance within the competence of the Magistrate under section 190(1)(a). The prayer for quashing such order was rejected. It was also held not tenable to say that the Magistrate had not examined all the witnesses [Suggi v Civil Judge, 2003 Cr LJ 3164 : 2003 All LJ 1570 : 2003 (3) Rec Cr R 534 : 2003 (2) Cur Cr R 221 (All)].

Report of a Magistrate to whom a complaint was referred to by the district (Chief Judicial) Magistrate for inquiry that the complainant should also be prosecuted in a complaint under clause (a) [Sukha, AIR 1933 P 87]. The written allegation of a police officer who is also a public prosecutor is a complaint [Ghulam, AIR 1925 L 237]. There is no legal bar to a police officer also filing a complaint and the Magistrate taking cognizance of it under section 190(1)(a) even in the case of a cognizable offence [Rev Fr Antony v V Mariarpudhom, AIR 1960 Ker 315 : 1960 Cr LJ 1334 : 1960 Ker LT 217 : 1960 Mad LJ (Cri) 313]. Order of a district Judge, on a petition that certain persons should be taken into custody, to the Court of Magistrate for robbery, is not a complaint. It is ultra vires [Pohumal, AIR 1922 SC 9 ]. But order of Sessions Judge that a witness examined before him should be put on trial under section 411, Indian Penal Code, 1860 is a complaint on which the Magistrate can take cognizance [Rahimbux, AIR 1935 SC 1 ; see Tara Singh, 39 Cr LJ 940].

When a complaint is made (after a police report that a case is false) the complainant is entitled to have it inquired into by the Magistrate who cannot avoid the responsibility of making the inquiry himself merely by accepting the conclusion of the police report [Shamlal, 14 C 707, 711, FB; see Raghupat, A 1924 P 597]; nor can the Magistrate refer it to another Magistrate for inquiry and report If sent to him, it must be for disposal [Gangadhar, 20 Cal WN 63].

Cognizance can be taken of a non-cognizable offence on a formal complaint by the police even though not ordered to investigate under section 155 or section 202 [Abdullah, AIR 1933 SC 188 ; State of Kerala v MP Ali Meerankutty, AIR 1965 Ker 59 : 1965 (1) Cr LJ 178 : 1964 Ker LT 535 : 1964 Mad LJ (Cri) 653; see Lalbehari, AIR 1929 P 514; Ghulam, AIR 1925 L 237]. Complaint against a receiver without leave of Court [Jnanendra, AIR 1939 C 701].

When the complainant was examined on oath by the Chief Judicial Magistrate and thereafter the case was transferred for enquiry or trial under section 192, Code of Criminal Procedure, 1973, it can be said that the

Page 20 of 34 [s 190] Cognizance of offences by Magistrates.— cognizance of the offence has already been taken[Director General, Sports Authority of India v State of Bihar, 2006 Cr LJ (NOC) 509 (Pat) : 2006 (3) Pat LJR 338 ].

When the Court recorded initial statement of complainant perused materials produced before it and after prima facie being satisfied took cognizance of the offence, the taking of cognizance was not illegal[Mahindra and Mahindra Financial Services Ltd v Rajiv Dubey, 2006 Cr LJ (NOC) 573 (Ori)].

If the Magistrate takes cognizance under section 190(1)(a) and embarks upon the procedure in chapter XV, he cannot switch back to pre-cognizance stage and avail of section 156(3) [Devarapalli Lakshminarayana Reddy v VNarayana Reddy, AIR 1976 SC 1672 : 1976 Cr LJ 1361 : (1976) 3 SCC 252 ]. The Magistrate taking cognizance upon complaint cannot refer the matter to the police under section 156(3) [AC Samaddar v Suresh Ch Jana, AIR 1949 Cal 197 : (1949) 50 Cr LJ 368 : 53 Cal WN 270]. In order to enable a Magistrate to take cognizance of an offence under section 190(1)(a) it is not necessary that the complaint should be made by an officer-in-charge of police station [Ashoke, 82 Cal WN 207].

The Magistrate must apply his mind [Basvantappa Bassappa Bannihalli v Shankarappa Marigallappa Bannihalli, 1989 (2) Kant LJ 95 : 1989 (2) All CrLR 222 : (1990) Cr LJ 360 (Kant)].

The acceptance of final report does not debar the Magistrate from taking cognizance on the basis of materials produced in a competent proceeding [Kishore Kumar Gyanchandani v GD Mehrotra, AIR 2002 SC 483 (484) : (2001) 3 Crimes 205 ]. [s 190.23] Cognizance is taken of offence and not of any section in Indian Penal Code or any other law.— Mentioning of section is redundant. It is immaterial which sections are mentioned while taking cognizance [Shyam Sunder Sinha v State of Bihar, 2006 Cr LJ (NOC) 501 (Pat) : 2006 (4) Pat LJR 27 ]. [s 190.24] Double cognizance.— Once the Magistrate has taken cognizance and either recorded evidence or committed the case to sessions he becomes functus officio. He cannot take cognizance of the same case on the basis of private complaint [Ibrahim Khan v State, 1999 Cr LJ 2614 (Raj) : 1999 (1) RCC 383].

After taking cognizance under section 190(1)(b) on Police Report it is not necessary to take cognizance (on complaint) after following the procedure under sections 200–204. [Manorama Patel v Subhash Soni, (1999) Cr LJ 3360 (MP)].

Session Courts has jurisdiction on committal of a case to it, to take cognizance of the offences of the persons not named as offenders but whose complicity in the case would be evident from the materials available on record. Hence, even without recording evidence, upon committal under section 209, the Session Judge may summon those persons shown in Column 2 of the police report to stand trial along with those already named therein [Dharam Pal v State, AIR 2013 SC 3018 ]. [s 190.25] Cognizance of offence not taken.— Not taking cognizance of an offence does not amount to acquittal or discharge [Hanuman Singh v State of Rajasthan, 1997 Cr LJ 1331 : 1996 (3) Raj LW 317 : 1996 CrLR (Raj) 719 (Raj)].

A special Court was constituted under the repealed Imports and Exports (Control) Act, 1947. A complaint was filed by the Deputy Chief Controller of Imports and Exports in discharge of his official duties. The order of the Magistrate taking cognizance of the offences even without recording the statement of the complainant was held to be proper [Dy Chief Controller of Imports and Exports v Roshanlal Agarwal, AIR 2003 SC 1900 : 2003 Cr LJ 1698 : 2003 (4) SCC 139 : 2003 (2) Crimes 43 (SC)]. [s 190.26] Irregularity or illegality during investigation.—

Page 21 of 34 [s 190] Cognizance of offences by Magistrates.— Any irregularity or illegality committed during investigation would not vitiate cognizance in the absence of prejudice to accused [UOI v Prakash P Hinduja, 2003 Cr LJ 3117 (SC) : AIR 2003 SC 2612 : 2003 (3) Crimes 142 : (2003) 6 SCC 195 ]. [s 190.27] Clause (b) : Police report.— [sections 157, 169, 170, 173]. Where the Magistrate had specifically found that on the basis of statement of witnesses recorded by the Investigating officer prima facie offences were being made out against the accused, the Magistrate was fully competent to take cognizance of the offence on the basis of police report under section 190(1)(b) of the Code [Ramesh Chandra v State of UP, 2010 Cr LJ 1946 (1947) (All)]. Police report means a report forwarded by a police officer to the Magistrate under section 173(2) [see section 2(r) and notes under section 173]. Magistrate can take cognizance under section 190(1)(b) even on submission of final report by the police re-open a police report and he is not bound to adopt the procedure of complaint as required for taking cognizance under section 190(1)(a), Code of Criminal Procedure, 1973 [Poonam Singh v State of UP, 2003 Cr LJ 2275 : 2003 All LJ 806 : 2003 (2) Rec Cr R 737 : 2002 (3) All Cr R 2857 : 2003 (3) All CrLR 866 (All)]. Even if the police submits the final form reporting the case to be false it is open to the Magistrate not to accept the same and take cognizance of the offence as disclosed in the case diary [Rameshwar Singh v State of Bihar, 2006 Cr LJ 4427 (4428) (Pat) : 2006 (4) Pat LJR 338 ]. When a Magistrate takes cognizance of any offence (cognizable or non-cognizable) on such a police report setting out facts constituting an offence he takes cognizance under section 190(1)(b) and the case becomes one instituted in the Magistrate’s Court on a police report. As to non-cognizable offence, authorised investigation by the police under chapter XII and ending up in police report under section 173(2) takes place only when the investigation is ordered by the Magistrate under section 155(2) and made by the police under section 155(3), and also in circumstances permitted under section 155(4). Report of a police officer into a non-cognizable offence after investigation not so authorised will be a complaint and when a Magistrate takes cognizance of an offence on such report he will be taking cognizance under 190(1)(a) and the case will be a case instituted on complaint. See definition of complaint [section 2(d) with Explanation; Dhanveer v State of UP, 2011 Cr LJ 547 (All)].

Where a Magistrate takes cognizance of the offence under section 190(1)(b), Code of Criminal Procedure, 1973, it is not necessary to examine the complainant before registering the case and using summons [Raghuvir Singh v Phoolmal, 2003 Cr LJ 3411 (MP) : 2003 (2) MPLJ 419 : 2003 (2) Cur CrR 408].

Police report means the report of the Police Officer. Cognizance can be taken upon a report of a Police Officer even if it is not accompanied by statements of witnesses or documents [State of WB v Anwar, 2000 Cr LJ 2189 , 2196, 2197 : 2000 (2) Crimes 557 : 2000 (1) Cal LJ 354 paras 28–35 (Cal)].

A “police report” is a report, which is submitted, in terms of section 173(2)(i), to a Magistrate on completion of investigation, which may have been carried out on registration of FIR. A report, which a police officer may submit, on completion of “investigation”, which was directed under section 202 cannot be treated as a “police report” within the meaning of section 2(r) inasmuch as such a report is not the report, which section 173(2)(i) envisages; rather, such a report is meant to help the Magistrate make up his mind if process needs to be issued to the person, who is accused to have committed an offence [James Sebastian v State of Assam, 2008 Cr LJ 3634 (3647–3648) (Gau)], the Magistrate may pass, if he deems necessary, order(s) directing the police to register the “complaint” as FIR and investigate the case. When an “information” is given to a Magistrate, and even when such an “information” does not amount to “complaint”, within the meaning of section 2(d), it would nevertheless be legally permissible for the Magistrate to take cognizance of the offence(s), which such “information” may reveal to have been committed. The passing of the order directing registration of a “complaint” as an FIR or investigation of a case is not a mechanical exercise of power and it cannot be left to the office of a Magistrate to decide as to whether a “complaint” would or would not be sent to the police for registering the same as a case and for investigating the same, for, if the Magistrate does not apply his mind before direction to register a “complaint” as an FIR is passed, he may, unknowingly and unconsciously, even direct registration of a case against his ownself without even knowing that the accusations are made against him. Such unconscious exercise of power cannot but be deprecated [James Sebastian v State of Assam, 2008 Cr LJ 3634 (3648) (Gau)].

Where the police report forwarded to the Magistrate under section 173(2) of the Code of Criminal Procedure,

Page 22 of 34 [s 190] Cognizance of offences by Magistrates.— 1973 states that a person has committed an offence, but after investigation the further report under section 173(8) states that the person has not committed the offence, it is for the Magistrate to form an opinion whether the facts, set out in the two reports, make out an offence committed by the person[Dharmatma Singh v Harminder Singh, AIR 2011 SC 2094 : (2011) 6 SCC 102 : (2011) 2 SCC (Cri) 834 ].

Section 319 is self-contained, complete in itself and independent of section 190. It empowers the Magistrate to add any person who is not the accused before him, but against whom there appears during enquiry or trial, sufficient evidence indicating his involvement in the offence. Persons other than the accused can be summoned as additional accused under clause (b) of section 190(1) and not under section 190(1)(c) [Jagdish Sahai Mathur v State (Delhi Admn), (1991) Cr LJ 1069 : 1991 (2) Rec Cr R 325 (Del—DB) (Jaspal Singh J); Murari Lal Goel v State of NCT of Delhi, 2003 Cr LJ 4044 (Del) : (2003) 105 DLT 720 : (2003) 69 DRJ 570 ].

As shown by section 319, the policy of the Code is that the offence can be taken cognizance of only once. Cognizance is not repeated upon discovery of further particulars. If it was permissible to take cognizance of the same offence repeatedly, section 319 would be redundant. The policy of the Legislature appears to be that when cognizance is taken of the offence, the Court taking cognizance will take cognizance of the offence as such and not merely the particulars of the persons who are alleged to have committed the offence. In a given case, the complainant may not even know the names and other particulars of the offenders and it would therefore be sufficient for him to lodge a complaint, making persons who are known to be the offenders as the accused. In such a trial, if the evidence led in the trial discloses offences committed by other persons who could be tried along with the Court can exercise its powers thereunder [Hemant P Vissanji v Mulshankar Shivram Rawal, 1991 Cr LJ 3144 : 1991 (3) Bom CR 83 : 1991 Mah LJ 1265 (Bom) (BN Srikrishna, J)].

Where the Magistrate decides to take cognizance of the case under section 190(1) (b) of the Code ignoring the conclusions assumed at by the investigating agency and by applying its mind, independently to the facts emerging from the investigation records, in such a situation, the Magistrate is not bound to follow the procedure laid down in sections 200 and 202 of the Code. For forming such an opinion the Magistrate can act only upon the statements of witnesses recorded by the police in the case diary and other material collected during investigation. It is not permissible for him at that stage to make use of any material other than investigation records unless he decides to take cognizance under section 190(1)(b) of the Code [Ganga Ram v State of UP, 2006 Cr LJ 687 (689) (All) : (2005) 53 All CrC 860 : 2005 All LJ 3887; Ashok Yadav v State of Bihar, 2006 Cr LJ 644 (Pat)].

Merely mentioning the recital of the affidavits in the order is not sufficient to come to a conclusion that the Magistrate has taken cognizance under section 190(1)(a), Code of Criminal Procedure, 1973 [Ganga Ram v State of UP, 2006 Cr LJ 687 (689) (All) : 2005 All LJ 3887 : (2005) 53 All CrC 860].

Where the Magistrate took cognizance under section 190(1)(b), Code of Criminal Procedure, 1973 by ignoring the final report and considering affidavits filed in support of protest petition, the contention the Magistrate had to follow procedure of complaint case is not tenable as name of affidavits filed by witnesses showed any other material contained in case diary. Cognizance taken by the Magistrate would be proper [Sukhpal v State of UP, 2006 Cr LJ 2238 (2242) (All) : (2006) 55 All CrC 1 : 2006 (3) All LJ 26].

The right to file a complaint is not subject to filing of the protest petition. Non-filing of protest petition against the final report does not take away the right of aggrieved informant to approach Court through complaint [Chhotey Lal v State of UP, 2006 Cr LJ 2265 (2266–2267) (All) : 2006 (3) All LJ 288 : (2006) 55 All CrC 325].

The Magistrate on receipt of final report is not debarred from taking cognizance under section 190(1)(b), Code of Criminal Procedure, 1973 and he has not to adopt procedure of complaint case [Mahendra Pal Sharma v State of UP, 2003 Cr LJ 698 : 2002 All LJ 2899 : 2003 (1) Crimes 208 : 2002 (3) All Cr R 2452 : 2002 (45) All Cr C 1127 (All)].

Page 23 of 34 [s 190] Cognizance of offences by Magistrates.— The Magistrate is not bound by opinion of the investigating officer and he is competent to exercise his discretion in this behalf irrespective of the view expressed by the police in their report and decide whether an offence has been made out or not [Fakhruddin Ahmad v State of Uttaranchal, 2008 Cr LJ 4377 (4380) (SC) : 2008 (4) Bank Cas. 96 : 2009 (10 Civ LJ 34 ].

The Magistrate is not bound to accept a final report submitted by the police and if he feels that the evidence and material collected during investigation justified prosecution of the accused he may not accept the final report and take the cognizance of the offence and summon the accused [UOI v Prakash P Hinduja, 2003 Cr LJ 3117 (3125) (SC) : AIR 2003 SC 2612 : 2003 (3) Crimes 142 : (2003) 6 SCC 195 ].

The Magistrate is empowered to issue process against some other person, who has not been charge-sheeted, but there is sufficient material in the police report showing their involvement [Arvind Kumar v State of UP, 2008 All LJ 88 (91)].

The Magistrate can ignore the conclusion arrived at by the investigating officer and apply his mind independently of the facts emerging from the investigation and take cognizance of the case [Govinda v State of UP, 2008 Cr LJ 2551 (2554) (All) : 2008 (3) All LJ 29, relying on Minu Kumari v State of Bihar, (2006) 4 SCC 359 : AIR 2006 SC 1937 : 2006 Cri LJ 2468 : 2006 (2) Crimes 130 : 2006 SCC (Cri) 310 ].

Where the Magistrate decides to take cognizance under section 190(1)(b) ignoring the conclusions reached at by the investigating officer and applying his mind independently, he can act only upon the statement of witnesses recorded by the police in the case diary and material collected during investigation. It is not permissible at this stage to consider any material other than that collected by the investigation officer [Mohammad Yusuf v State of UP, 2008 Cr LJ 493 (495) (All) : 2007 (6) All LJ 527 : 2007 (59) All Cri C 878].

In this case, the FIR was registered against unknown offenders and though the name of the petitioner and a few others was mentioned in the Police report but no charge-sheet was submitted recommending the trial for the offences against any of the accused persons. Under such circumstances, the Magistrate cannot be faulted for not accepting the opinion of the police officer and proceeding to exercise his discretion in exercise of the powers under section 190(1)(b) of the Code [Hari Shankar Pandey v State of Jharkhand, 2011 Cr LJ 162 (164, 165) (Jhar)].

Where the final report is filed by police but the Magistrate on the basis of material on record takes cognizance of the offence, neither notice to the accused nor opportunity of hearing to the accused is necessary at the time of taking cognizance [Banod Behl v State of Jharkhand, 2004 Cr LJ (NOC) 362 (Jhar) : 2004 AIR Jhar HCR 3097].

In a case decided by the Allahabad High Court, after the police submitted final report, complainant filed protest petition. The Magistrate while he did make a reference to the protest petition, actually took cognizance on the police report itself;

(a) on the basis of material collected by the police; and (b) recording his disagreement with the police; section 190(1)(b) applied. [Jabaruddeen v State of UP, 2000 Cr LJ 158 , 160, 161 : 1999 All LJ 2409 : (1999) 39 All Cr C 18 paras 4–7 (All) (MC JAIN J)].

If there is any material other than the investigation record only then the Magistrate is required to follow the

Page 24 of 34 [s 190] Cognizance of offences by Magistrates.— procedure of a complaint case. Other material means any thing which has not been stated during the cause of the investigation and was subsequently added in affidavit filed in support of the protest petition [Rafiquddin v State of UP, 2006 Cr LJ 1786 (All) : 2006 (2) All LJ 807 : (2006) 54 All CrC 968].

If any protest petition is filed against the final report, the Magistrate may proceed to examine the matter on the basis of materials collected during the investigation and to see whether or not any case for taking cognizance of the offence is made out from the materials collected during the investigation. If a prima facie case is made out, the Magistrate may take cognizance of the offence under section 190(1)(b) of Code and reject the final report. But if such materials do not make out any case for taking cognizance of the offence, the Magistrate may, in that situation, treat the protest petition as complaint. If any protest petition is treated as complaint, it should be dealt with in accordance with chapter XV of Code. Therefore, the learned Magistrate was well within his jurisdiction to reject the final report and take cognizance of the offences, when he had arrived at the conclusion that there was sufficient ground to proceed with the case and summon the petitioners. [Abdul Gaffar v State of UP, 2010 Cr LJ 3620 (3621) (All) : (2011) 1 ACR 535 ]. [s 190.28] Power of Magistrate — No restriction on Magistrate.— No restriction is imposed by the Legislature that the Magistrate can take cognizance only for the offences triable by a Magisterial Court and not in respect of offences triable by a Court of Session [Shankar Ram v State of Rajasthan, 2011 Cr LJ 472 (476) (Raj) : RLW 2011 (1) Raj 1 ]. [s 190.29] Scrutiny of complaint.— In a criminal trial when a summons in a complaint case has been issued by the Magistrate, the question that arises for consideration is whether allegations set out in the complaint constituted any offence against the accused. The field, at this juncture is restricted to finding out for proceeding against the accused. Thus, up to the stage of issue of process by the Magistrate, all that is to be seen is whether any offence appears to have been committed and, if so, by whom. The opinion to be formed by the Magistrate to take cognizance is restricted to there being sufficient ground for commencement of proceedings against the accused person.

It is only after the Magistrate has taken cognizance that he would proceed to frame the charge under section 211, Code of Criminal Procedure, 1973. It is at that stage only that the offence with which the accused is charged is determined and it must be stated by specific name and description [Ashwani Kumar v Delhi Administration, 1992 Cr LJ 446 : 1991 (1) Recent CR 674 (Del) (per Arun B Sabarya J)]. [s 190.30] Scrutiny.— A complaint which does not contain ingredients of the offence is not maintainable [Kuchil Kumar Nandi v Modi Cement Ltd, 1997 Cr LJ 805 : 1997 (1) Cal LJ 427 : 1997 (2) All CrLR 10 (Cal)]. [s 190.31] Abuse of process.— Taking cognizance without considering the report of the station house officer and by ignoring the same is abuse of the process of the Court and on this ground, the impugned order can be set aside [Daleep Singh v Magan, 1996 Cr LJ 190 , 194 (Raj)]. [s 190.32] Who can file complaint.— In the absence of a specific provision to the contrary (such as sections 195–199) any person can make a complaint in respect of an offence. Hence a complaint filed by a clerk of a college, against the principal of the college (for offences under sections 406 and 408 Indian Penal Code) is valid [Polavarapu Jagadeshara Rao v Kondapaturi Ventateswaralu, 1991 Cr LJ 1419 : 1991 (1) Andh LT 70 : 1991 (1) APLJ 71 (AP) (Bhaskar Rao, J)].

Complaint can be given direct to Magistrate.—

It cannot be said that the complaint cannot be given directly to the Magistrate without giving any complaint to police under section 154, Code of Criminal Procedure, 1973 [Muthushankaralingam v R Suresh, 2008 Cr LJ (NOC) 787 (Mad) : 2008 (1) Mad LJ (Cri) 964 : 2007 (2) Mad LW (Cri) 994 ]. [s 190.33] Procedure on complaint.—

Page 25 of 34 [s 190] Cognizance of offences by Magistrates.— Once the Magistrate proceeds on the basis of the original complaint, then he must first proceed to examine on oath the complainant and his witnesses under section 200 and thereafter hold an inquiry himself or direct the inquiry to be held by a police officer under section 202. He must then either dismiss the complaint or issue the process. Thus, in a complaint case, alleging commission of a non-cognizable offence, it is incumbent upon the Magistrate to immediately take cognizance and proceed to examine upon oath the complainant and his witnesses. The Magistrate cannot straightway assign the complaint to the police for investigation, as such a procedure is not warranted by law [Cucusan Foils Pvt Ltd v State, (1991) Cr LJ 683 : (1990) 3 DL 242 : 1990 Rajdhani LR 460 : 1990 (2) Rec Cr R 517 (Del) (Santosh Duggal J)]. [s 190.34] Complaint against known offenders.— The Magistrate takes cognizance of an offence and not of the offenders; but where the offences are known, the complaint must be filed against known offenders [Churiaram Aggarwal v Aggarwal Sweet Corner, 1990 Cr LJ 2460 : 1990 Rajdhani LR 300 : (1990) 3 DL 101 (Del) (PK Bahri J)]. [s 190.35] Hearing the accused.— Before process is issued, the accused has no right to be heard if after submission of final report by the police, the Magistrate can still take cognizance and direct issue of process. The Code does not contemplate the holding of two trials—one before the issue of process and one after the issue of process [Pratap Son of Chandan Singh v State of UP, 1991 Cr LJ 1669 : 1991 All LJ 688 : 1991 All Cr C 422 (All)]. At the time of taking cognizance, the Magistrate is not required to consider the defence of the accused. [Rabindra Nath Srivastava v State of Bihar, 2006 Cr LJ (NOC) 397 ]. It is not necessary to consider the documents relating to the defence [Rakesh Devi v State of UP, 2002 Cr LJ 1225 (All) : 2002 All LJ 30 : 2002 (1) Crimes 540 ]. [s 190.36] Protest petition after final report is accepted.— Merely because the Magistrate has accepted the final report, it by itself would not stand in the way of Magistrate to take cognizance [Mahesh v B Janardhan, AIR 2003 SC 702 : (2003) 1 SCC 734 : 2003 (1) Crimes 1 ]. Where Inquiry officer has filed final report the complainant has not filed protest petition it is not open to the Magistrate to straightaway examine the complainant and his witnesses and pass order for summoning the accused [Chandra Pal v State of UP, 2008 Cr LJ 4677 (4679) (All) : 2008 (5) All LJ 623 : 2008 (62) All Cri C 626]. A protest petition must satisfy the ingredients of a complaint before Magistrate can take cognizance under section 190(1)(a). A mere sentence in the protest petition that the accused committed heinous offences would not be a complaint of facts which constitute an offence and as such the Magistrate would not take cognizance on such a protest petition [Veerappa Bhimareddyappa, 2002 Cr LJ 2150 (Kant) : 2001 (5) Kant LJ 391 : 2002 AIR Kant HCR 1147]. Where the protest petition was filed by a person in his individual capacity without being personally aggrieved by final report in respect of FIR lodged by him, cognizance taken by the Magistrate on the protest petition was held improper and liable to be set aside [Anil Singh v State of Jharkhand, 2006 Cr LJ (NOC) 41 (Jhar) : 2005 AIR Jhar HCR 2209].

After receipt of protest petition filed by the complainant against the final report submitted by the police, the Magistrate could have taken cognizance on the basis of police report if there was sufficient material available in the case diary, or could have accepted the final report or could have directed further investigation, or could have treated the protest petition as a complaint case and should have proceeded in accordance with the procedure prescribed for the complaint cases. Cognizance of offence on the basis of affidavits of witness is not proper. [Meeraj Beg v State of UP, 2011 Cr LJ 2351 (2352) (All) : (2011) 3 ADJ 846 ]. [s 190.37] Non-cognizable.— Though cognizance can in law be taken on a police report (the police reported a case as false and the Magistrate ordered prosecution under section 211, Indian Penal Code, 1860) a Magistrate ought not in the exercise of sound judicial discretion to take cognizance of a non-cognizable offence until some person aggrieved has complained, or until he has a police report based on an investigation directed to the offence to be tried, and in case of alleged false charges, until it is clear that the original charge has been either heard and dismissed or abandoned [Sham Lall, 44 C 707, 719, FB]. As to this case, see Bhairab, 23 Cal WN 484]. When the Magistrate doubts the correctness of a police report in a non-cognizable offence, he may order investigation under section 155 [Nag Saw, 16 Cr LJ 97].

When on receipt or report under section 173 that there was no evidence the Magistrate ordered: “Enter true,

Page 26 of 34 [s 190] Cognizance of offences by Magistrates.— section 302, Indian Penal Code, 1860” and is charged the accused, he took cognizance [Jiban Krishnan Samanta v State, ILR 1950 (2) Cal 66 : AIR 1955 NUC 665 (Cal)].

Cognizance is taken of an offence and not of the offender (see ante). So when the police report does not file charge sheet against all the persons alleged to have committed the offence, the Magistrate has power to summon other persons not mentioned in the report [Mehrab, AIR 1924 SC 71 , FB : 26 Cr LJ 181; Saifar v State of WB, AIR 1962 Cal 133 : 1962 (1) Cr LJ 283 ; Raghubans Dubey v State of Bihar, AIR 1967 SC 1167 : 1967 Cr LJ 1081 (SC); Harnam, AIR 1978 SC 1568 ]. Section 319 specifically provides that the Court can proceed against persons not named in the report [Tikaram, (1976) 42 Cut LT 107]. Section 190(1)(b) empowers a Magistrate to differ with the police report, be it a charge-sheet or final report to called, and direct that persons not named in the report or not sent up be put up on trial [Kuli Singh v State of Bihar, AIR 1978 Pat 298 SB : 1978 Cr LJ 1575 : 1978 Pat LJR 500 ].

Even if an irregularity has been committed in investigating an offence and in arresting the accused, the police report is within clause (b) and Magistrate can take cognizance of it [Rustom Ardeshir Banaji v Emperor, AIR 1948 Bom 163 : (1948) 49 Cr LJ 196 : 49 Bom LR 821 : ILR (1948) Bom 66 ; Shivswami, 51 498]. It cannot be maintained that a valid and legal police report is the foundation of the jurisdiction of the Court to take cognizance. A defect or illegality in investigation, however, serious, has no direct bearing on cognizance or trial. Such an invalid police report is not a nullity. It is only an error antecedent to trial curable under section 465 unless the illegality in investigation brings-about a miscarriage of justice [HN Rishbud v State of Delhi, 1955 SCR 1150 : AIR 1955 SC 196 : 1955 Cr LJ 526 (SC); Barsay EG v State of Bombay, AIR 1961 SC 1762 : 1961 (2) Cr LJ 828 : 1962 (2) SCR 195 (SC)]. Cognizance may be taken if police report is submitted not through the officer-in-charge [Abdul Hamid v State of Tripura, AIR 1958 Tri 1 : 1958 Cr LJ 97 ].

A special Judge’s power under Criminal Law Amendment Act, 1952 to take cognizance is wider and is unknown to the Code of Criminal Procedure, 1973. He can take cognizance on the report of a police officer although not empowered to investigate under any Act. He has also power to order re-investigation [Prasnath Pande v State, AIR 1962 Bom 205 : 1962 (2) Cr LJ 326 : 64 Bom LR 188].

If a police officer investigating into a cognizable offence under Essential Commodities Act, 1955 submits a report under section 173(2) disclosing an offence under the Act it would satisfy the requirement of section 11 of the Act for taking cognizance of the offence under section 190(1)(b) [Satyanarain Musadi v State of Bihar, AIR 1980 SC 506 : 1980 Cr LJ 227 : (1980) 3 SCC 152 ]. But if a report submitted by a public servant under section 11 indicates that he was not satisfied that any offence had been committed, the Court cannot invoke provisions of section 190(1)(a) and (b) [Lakhan Prasad Gupta v State of Bihar, 1980 Cr LJ 537 : 1979 BLJR 234 (Pat)]. [s 190.38] Proceedings on police report [Charge-sheet or final report].— The Magistrate cannot take cognizance of an offence under section 190(1)(b) on a preliminary or incomplete challan under section 170.—Police report has been defined under the new Code as a report forwarded to the Magistrate by a police officer under section 173(2). This report is submitted on completion of investigation (see notes under section 173(2) for nature of the report). Whether a case comes under section 169 or under section 170 this report has to be submitted in the manner indicated in section 173(2) and containing the various details set out there [Abhinandan Jha v Dinesh Mishra, 1968 SC 117 : 1968 Cr LJ 97 (SC)]. On receipt of this report which is also called the completion report the Magistrate has to consider the report judicially and take a decision whether or not to take cognizance of offence. The words “may take cognizance” in section 190(1) import exercise of such judicial discretion [Abhinandan, supra]. It thus follows that on preliminary report or incomplete challan under section 170 which is a stage prior to the submission of police report under section 173(2) no question of taking cognizance thereupon by a Magistrate after exercise of his aforesaid judicial discretion arises and the Magistrate cannot take cognizance thereupon.

The position when the report under section 173(2) is a charge-sheet is well settled. It is open to the Magistrate after exercise of his judicial discretion to take the view that the facts disclosed in the report do not make out an offence for taking cognizance or he may take the view that there is no sufficient evidence to justify an accused being put on trial. On either of these grounds the Magistrate will be perfectly justified in declining to take

Page 27 of 34 [s 190] Cognizance of offences by Magistrates.— cognizance irrespective of the opinion of the police. On the other hand, if the Magistrate agrees with the report he will have full jurisdiction to take cognizance of the offence under section 190(1)(b) [Abhinnandan, supra].

Now as to the position, when the report under section 173(2) is a final report and if the Magistrate disagrees with the opinion of the police.—(1) If the Magistrate feels after considering the report that the investigation is unsatisfactory or incomplete or there is scope for further investigation, it is open to the Magistrate to decline to accept the report and direct the police to make further investigation under section 156(3) [Abhinandan Jha v Dinesh Mishra, AIR 1968 SC 177 : 1968 Cr LJ 97 (SC); Kulisingh v State of Bihar, AIR 1978 Pat 298 , SB : 1978 Cr LJ 1575 : 1978 Pat LJR 500 ; Boywalla, AIR 1941 B 294]. The Magistrate may also himself hold enquiry or get it held by any other subordinate Magistrate for taking cognizance under section 190(1)(b) [Pancham Singh v State, AIR 1967 Pat 416 : 1967 Cr LJ 1677 : 1967 BLJR 411 ]. (2) If the Magistrate however can come to form an opinion on the facts set out in the report that they constitute an offence he can take cognizance of the offence under section 190(1)(b) notwithstanding contrary opinion of the police and this he can do even after further investigation if directed by him the police submits also again a final report [Abhinandan, supra HS Bains v State (UT of Chandigarh, AIR 1980 SC 1883 : 1980 Cr LJ 1308 : (1980) 4 SCC 631 (SC); AK Roy v State of WB, AIR 1962 Cal 135 FB : 1962 (1) Cr LJ 285 : 66 Cal WN 697; State of Gujarat v Shah Lakhamshi Umarshi, AIR 1966 Guj 283 FB : 1966 Cr LJ 1420 : (1966) 7 Guj LR 130 : ILR (1966) Guj 285 ; Raghunath, AIR 1932 Pat 72 ; Badarmal v Roshanlal, AIR 1971 Raj 18 : 1971 Cr LJ 239 ; Kuli Singh v State of Bihar, AIR 1978 Pat 298 : 1978 Cr LJ 1575 : 1978 Pat LJ 500 : 1978 BLJ 573 ; Gyanendra Kumar Gupta v State, 1980 Cr LJ 1349 : 1980 All Cr C 334 : 1980 All WC 504 (All); Ram Adhar v State, 1981 Cr LJ 1321 : 1981 All Cr C 169 : 1981 All WC 570 (All); Zalam Singh v State of HP, 1981 Cr LJ 1447 : 1981 Sim LR 407 (HP)]. Where the police after investigation had challaned some accused and had not challaned others and the Magistrate subsequently issued process against the accused not challaned it was held that the Magistrate will be taken to have taken cognizance under section 190(1)(b) [Raghubans Dubey v State of Bihar, AIR 1967 SC 1167 : 1967 Cr LJ 1081 ; Hareram Satpathy v Tikaram Agarwala, AIR 1978 SC 1568 : 1978 Cr LJ 1687 : (1978) 4 SCC 58 (SC); Kuli Singh v State of Bihar, AIR 1978 Pat 298 : 1978 Cr LJ 1575 SB : 1978 Pat LJR 500 : 1978 BLJ 573 ; Surat Singh v State of Punjab, 1981 Cr LJ 585 : 1981 Chand LR (Cri) 547 : ILR (1981) 2 P&H 320 (P&H); (3) If the report does not set out facts constituting the offence and the Magistrate after having due regard to the police records before him has reasons to suspect that any offence has been committed he can take cognizance under section 190(1)(c) [Abhinandan, supra; Lakhamshi, supra; Badarmal, supra]. In Kuli Singh v State of Punjab, AIR 1978 Pat 298 , SB : 1978 Cr LJ 1575 : 1978 Pat LJR 500 : 1978 BLJ 573 , it has been held by a majority judgment that if the Magistrate feels that the materials collected during investigation reveal commission of an offence differing from the final report he can take cognizance under section 190(1)(b). In this case the case of Abhinandan, supra, has been fully discussed and it has been further held that case is not authority for holding that where police submits final report the Magistrate has no jurisdiction to take cognizance under section 190(1)(b) to hold that will run counter [Tularam v Kishore Singh, AIR 1977 SC 2401 : 1978 Cr LJ 8 : (1977) 4 SCC 459 (SC)].

Even if a final report is submitted against an accused, yet on a consideration of the materials appearing in the case diary the Magistrate can lawfully take cognizance of an offence against him. In this case, in the FIR the name of a lady was mentioned as an instigator to the crime. In her statement the information repeated the allegation against her. Yet, the investigating officer did not include her name as an accused in the charge sheet. So virtually a final report was submitted so far as she was concerned. Therefore, on consideration of the case diary it was open for the Judicial Magistrate to take cognizance of an offence against her on the basis of the material available [Annapurna Jena v State of Orissa, 1990 Cr LJ 1577 : 1990 OCR 279 (Ori) (KP Mohapatra J)].

The Magistrate may take cognizance irrespective of the view taken by the police [India Carat Private Ltd v State of Karnataka, AIR 1989 SC 885 : 1989 Cr LJ 963 : (1989) 2 SCC 132 : 1989 (2) Crimes 483 ].

On a written information that the accused set fire to informant’s house and burnt it, the police registered the case and after investigation, even though the witnesses supported the case of the informant the police submitted a final report. However, on protest petition, the Chief Judicial Magistrate, after perusal of statements in “case diary” did not accept the final report, but instead took cognizance of the case against petitioners under section 436, Indian Penal Code, 1860 and directed issue of notices against them. It was held on application under section 482, Code of Criminal Procedure, 1973 that there was nothing wrong with the conclusion arrived

Page 28 of 34 [s 190] Cognizance of offences by Magistrates.— at by the Magistrate. The Magistrate was quite justified in taking cognizance of the case on the basis of the materials available in the “case diary” if he was satisfied on perusal thereof that there was sufficient ground for proceedings [Md Rafiq v State of Bihar, 1990 Cr LJ 717 : 1989 (2) BLJ 157 (Pat) (BB Sinha J)]. [s 190.39] Sanction.— Where the sanction is prima facie valid, plea that all the materials were not placed before the sanctioning authority at the time of grant of sanction would be considered at the time of trial and not at the cognizance stage [Pradeep Kumar v State of Jharkhand, 2002 Cr LJ 3796 (Jhar) : 2002 AIR Jhar HCR 885 : 2002 (3) Cur CrR 430]. The order of cognizance without sanction required under section 197, Code of Criminal Procedure, 1973 is illegal [Devid Karketta v State of Jharkhand, 2002 Cr LJ (NOC) 304 (Jhar) : 2002 (3) JLJR 181 : 2002 (3) Bank Cas 58].

The police after investigation found that the allegations levelled in the FIR to be true and hence submitted the charge-sheet upon which cognizance of the offence was taken by the CJM under section 13(2) of the Unlawful Activities (Prevention) Act, 1967 as well as under section 17 of the Criminal Law Amendment Act (14 of 1908), but admittedly, sanction required for the prosecution of the persons for the offence relating to Unlawful Activities (Prevention) Act was not there before the Court taking cognizance though same in terms of provisions of section 45 of the said act was a condition precedent. Therefore, order taking cognizance under section 13(2) of the Act was quite bad. So far as the offence under section of the Criminal Law Amendment Act (14 of 1908) was concerned, as the act allegedly done by the petitioner, was fully covered by section 17 of CLA Act [Ashish Sharma v State of Jharkhand, 2010 Cr LJ 1553 (1554) (Jhar) : 2010 (1) AIR Jhar R 545]. [s 190.40] Narcotic Drugs and Psychotropic Substances Act.— In case of prosecution under section 138 of the Negotiable Instruments Act, 1881, the Apex Court held that the procedure for taking cognizance under the Criminal Procedure Code, 1973 should give way to procedure under section 142 of the Negotiable Instruments Act, 1881. [N Harihara Krishnan v J Thimas, AIR 2017 SC 4125 : 2017 (8) SCJ 421 ].

In the prosecution for offences under Narcotic Drugs and Psychotropic Substances Act it is open to a Magistrate to take cognizance of offences upon a police report submitted under section 173(2) of the Code of Criminal Procedure, 1973 even when it does not include the report of experts. Under section 173(2) of the Code there is no mandate that a police report must enclose the document purporting to be under the hand of a Government Scientific expert. Cognizance of the offences taken by the Magistrate will be proper and valid and no order releasing the accused on bail under section 167(2) of the Code will be required to be passed [Kishan Lal v State, 1990 Cr LJ NOC 105 : (1989) 39 DLT 392 : (1989) 17 DRJ 267 (Del-DB)].

Though the Magistrate has the power to take cognizance of the offence himself under section 190(1)(b) of the Code, even if the police report is to the effect that no case is made out against the accused. But, he has no power to issue direction to the investigating agency/police to file challan in the Court. Under the scheme of the Code, the investigating agency is the master of the investigation. It is the statutory right of the investigating agency to investigate the circumstances of an alleged cognizable offence without requiring any authority from the judicial authorities or the Court. It is the authority of the investigating agency to form an opinion whether the material collected by it during the investigation warrants it to place the accused before the Magistrate for trial. The submission of either a charge-sheet, or a final report is dependent on the nature of the opinion, so formed by the investigating agency. The formation of the said opinion, by the police, is the final step in the investigation, and that final step in the investigation, and that final step is to be taken only by the police and not by any other authority [Sarwan Singh v State of Punjab, 2004 Cr LJ 4038 : 2004 (2) Rec Cr R 971 (P&H)]. [s 190.41] Powers of the Magistrates.— Upon receipt of a police report under section 172(2), a Magistrate is entitled to take cognizance of an offence under section 190(1) (b) of the Code even if the police report is to the effect that no case is made out against the accused. The Magistrate can take into account the statements of the witnesses examined by the police during the investigation and take cognizance of the offence complained of and order the issue of process to the accused. Section 190(1)(b) does lay down that a Magistrate can take cognizance of offence only if the investigating officer gives an opinion that the investigation has made out a case against the accused. The Magistrate can ignore the conclusion arrived at by the investigating officer and independently apply his mind to the facts emerging from the investigation and take cognizance of the case, if he thinks fit, in exercise of his

Page 29 of 34 [s 190] Cognizance of offences by Magistrates.— powers under section 190(1) (b) and direct the issue of process to the accused. The Magistrate is not bound in such a situation to follow the procedure laid down in sections 200 and 202 of the Code for taking cognizance of a case under section 109(1)(a) though it is open to him to act under sections 200 or 202 also [India Carat Pvt Ltd v State of Karnataka, 1989 Cr LJ 963 : AIR 1989 SC 885 : (1989) 2 SCC 132 : 1989 (2) Crimes 483 (SC)].

A Magistrate is not bound to accept the opinion of the police in the final report submitted to him under section 169, Code of Criminal Procedure, 1973. He can disagree and differ with it and if he does so, then, even on the basis of the police papers, if any, submitted along with the police report, he can take cognizance of the case and that cognizance will be deemed to be under section 190(1)(b) on police report itself and under those circumstances summoning of the accused outright without resort to section 200 and section 202 onwards, will be in order.

The protest petition in the instant case could hardly be treated to be a complaint, because it neither disclosed the offence committed, nor the names of the persons who had committed the same and as such it could not be covered by the definition of a complaint as given in section 2(d) of the Code of Criminal Procedure, 1973. Thus, when cognizance had been taken in this case on the police report itself under section 190(1)(b), there was no need for the Magistrate to proceed under section 200 [Satyapal v State of UP, 1988 Cr LJ NOC 17 (All)].

After receipt of police report after investigation under section 156(3) the Magistrate may do one of three things: (1) decide that there is not sufficient ground for proceeding further and drop action: (2) take cognizance of the offence under section 190(1)(b) on the basis of the police report without being bound in any manner by the conclusion of the police report and issue process; (3) take cognizance under section 190(1)(a) on the basis of the original complaint [HS Bains v State (UT of Chandigarh), AIR 1980 SC 1883 : 1980 Cr LJ 1308 : (1980) 4 SCC 631 : 1981 SCC (Cri) 93 (SC); (Abhinandan Jha v Dinesh Mishra, AIR 1968 SC 117 : 1968 Cr LJ 97 (SC) and Tularam Kishore Singh, AIR 1977 SC 2401 : 1978 Cr LJ 8 : (1977) 4 SCC 459 (SC) discussed)].

In the Supreme Court case of Abhindandan, as appeared in blue print copy of judgment and report in AIR 1968 SC 117 and other reports end of para 15 reads as follows:

If ultimately the Magistrate forms the opinion that the facts, set out in the final report, constitute an offence, he can take cognizance of the offence under section 190(1)(b) notwithstanding the contrary opinion of the police expressed in the final report.

But in Abhinandan Jha v Dinesh Mishra, AIR 1968 SC 117 : 1968 Cr LJ 97 : (1967) 3 SCR 668 the reference to clause (b) has been mentioned as clause (c).

The controversy created by printing “Section 190(1)(c)” in SCR and “Section 190(1)(b)” in some other journals has been set at rest by the observation of the Supreme Court: “We do not have any doubt that the reference to “Section 190(1)(c)” was a mistake for “S 190(1)(b)” made in HS Bains, supra. Attention of the readers is invited to the opinion expressed by the editors under the heading “Magisterial” Proceeding on a Police Report in 4th Edn, p 289 which is in accord with the above view.” [s 190.42] Power of Magistrate to add any other accused not challaned by Police.— A Magistrate has ample power to add any other accused not challaned by police, if there is a ground to proceed against him [Jitender Singh v State Government of NCT of Delhi, 2003 Cr LJ 2388 : 2003 (1) Rec Cr R 593 : 2003 (2) All CrLR 484 (Del)]. [s 190.43] Section 319, CrPC does not apply at the stage of taking cognizance.— In SWIL Ltd v State of Delhi, AIR 2001 SC 2747 : 2001 Cr LJ 4173 : 2001 (6) SC 670 : 2001 (4) Crimes 124 (SC) the Apex Court has held as under:—

Page 30 of 34 [s 190] Cognizance of offences by Magistrates.—

Upon receipt of police report under Section 173(2), Code of Criminal Procedure, 1973 the Magistrate is entitled to take cognizance of an offence under Section 190(1)(b) even if the police report is to the effect that no case is made out against the accused by ignoring the conclusion arrived at by the investigating officer and independently applying his mind to the facts emerging from the investigation by taking into account the statement of the witnesses examined by the police. At this stage, there is no question of application of Section 319, Code of Criminal Procedure, 1973. That provision would come into operation in the course of any enquiry into or trial of an offence. In the present case, neither the Magistrate was holding enquiry as contemplated under Section 2(g), Code of Criminal Procedure, 1973 nor has the trial started. He was exercising his jurisdiction under Section 190 by taking cognizance of an offence and issuing process. There is no bar under Section 190, Code of Criminal Procedure, 1973 that once the process is issued against some accused, on the next date, the Magistrate cannot issue process to some other person against whom there is some material on record, but his name is not included as accused in the charge-sheet. [See also Rohin Kumar Sachdeva v State of Punjab, 2004 Cr LJ 3127 : 2004 (13) All CrLR 671 : 2004 (2) Rec Cr R 964 (P&H) : 1991 Cr LJ 887 (AP); RC Kumar v State of AP, 1991 Cr LJ 887 : (1990) 3 Andh LJ 162 : 1990 (3) Crimes 678 not good law in view of Section AIR 2001 SC 2747 : 2001 Cr LJ 4173 : 2001 (6) SC 670 : 2001 (4) Crimes 124 (SC)].

The power of the Magistrate to summon an additional accused under section 190 of the Code definitely ends, particularly with regard to the person mentioned in Column No 2 of the police report, with the starting of the stage of recording the evidence during trial. If some evidence is being collected against such an accused during the trial, he can be summoned under section 319 of the Code, but at that stage of the trial such person cannot be summoned under section 190 of the Code on the basis of the material placed by the police along with the final report submitted under section 173 of the Code [Rohin Kumar Sachdeva v State of Punjab, 2004 Cr LJ 3127 : 2004 (3) All Cr LR 671 : 2004 (2) Rec Cr R 964 (P&H)].

Person who has not joined as accused in the charge-sheet can be summoned at the stage of taking cognizance under section190 of the Code. There is no question of applicability of section 319 of the Code at this stage. It is also trite that even if a person is not named as an accused by the police in the final report submitted, the Court would be justified in taking cognizance of the offence and to summon the accused if it feels that the evidence and material collected during investigation justifies prosecution of the accused [Sunil Bharti Mittal v Central Bureau of Investigation, AIR 2015 SC 923 : (2015) 4 SCC 609 : 2015 Cr LJ 1130 (SC); UOI v Prakash P Hinduja, (2003) 6 SCC 195 : 2003 Cr LJ 3117 (SC)]. [s 190.44] Sessions triable cases—Power of Magistrate to add names of accused in charge-sheet.— The Magistrate has no jurisdiction to take cognizance of offence in a case triable by the Court of Session against such accused persons who have not been charge-sheeted. In other words, he has no jurisdiction to add names of accused persons in charge-sheet in cases triable by Court of Session. He can only add names to the list of accused in cases triable by Magistrate [Kalandi Ch-Parida v State of Orissa, 2004 Cr LJ 3081 : 2004 (4) Cur Cr R 438 : 2004 (1) Ori LR 462 (Ori)].

In a petition against taking cognizance by the Magistrate, an application under section 156(3), Code of Criminal Procedure, 1973 was moved by the petitioner. The said application was allowed and the police officer concerned was directed to register case and investigate the same. Investigation Officer after investigation submitted final report that accused were falsely implicated. Protest petition was filed by the petitioner along with affidavit. The Magistrate considered the evidence collected by the Investigating Officer, and found that a prima facie case was made out against the accused. The order summoning the accused was held proper [Yogendra Singh v State of UP, 2005 Cr LJ 2762 (All)]. [s 190.45] Illegal order.— The power to take cognizance has been conferred on a Magistrate by section 190(1) of the Code, and he would not be denuded of this power because the case has come to his file pursuant to some illegal order of the Chief Judicial Magistrate.

Page 31 of 34 [s 190] Cognizance of offences by Magistrates.— The former would be exercising his power of taking cognizance even in such a case, because of his having received a complaint constituting the offence. It would not be material, for this purpose, as to how he came to receive the complaint, directly or on transfer from the Chief Judicial Magistrate. [Anil Saran v State of Bihar, AIR 1996 SC 204 : 1995 AIR SCW 3937 : 1996 Cr LJ 408 , 410 (SC)]. [s 190.46] Clause (c) : Upon other information or upon own knowledge.— The scope of clause (c) has been reduced by omission of the words “or suspicion”. Some cases have held that there has been no change in law by omission of the words “or suspicion” and the Magistrate can take cognizance under section 190(1)(c) as held in Abhinandan, supra; Kuli Singh v State of Bihar, AIR 1978 Pat 298 : 1978 Cr LJ 1575 : 1978 BLJ 573 (SB) (Minority judgment); Ganga Prasad v State, 1975 Cr LJ 1565 : 1975 All Cr C 299 (All); Raju v State of Rajasthan, 1980 Cr LJ 896 : 1979 Raj LW 67 : 1979 Raj Cr C 253 (Raj) (In this case after making elaborate discussions on the meaning of “knowledge” the Court was of the view “that the Magistrate can derive his own knowledge of the offence from the police papers placed before him”)]. The above rulings are of no use now as the Supreme Court has categorically said that in Abhinandan, supra, the reference to “section 190(1)(c)” was a mistake for “section 190(1)(b)”, the Magistrate may make cognizance under section 190(1)(b) against adverse police report and section 190(1)(c) was never intended to apply to cases where there was a police report under section 173 [HS Bains v State (UT of Chandigarh), AIR 1980 SC 1883 : 1980 Cr LJ 1308 : (1980) 4 SCC 631 : 1981 SCC (Cri) 93 (SC)].

Under this clause the Magistrate acts independently of a complaint of police and on his own initiative upon information from any person or any source or upon his own knowledge [see Dedar Bux, 41 C 1013] and in cases where an aggrieved private individual is unwilling to come forward to make a formal complaint or is unaware of the proper legal remedy [Surendra, 13 WR 27 CR; Lallu, AIR 1943 O 226; Sarfaraz, AIR 1930 O 500].

Although the Suppression of Immoral Traffic in Women and Girls Act, 1956 provides for a charge-sheet by a special police officer, complaint by a Magistrate against a person suspected of having committed an offence under the Act or cognizance of an offence upon his own knowledge is not excluded [Shakila v State, AIR 1961 All 633 : 1961 (2) Cr LJ 754 : 1961 All LJ 470 : 1961 All WR 361]. Clause (c) is concerned with extra-judicial information, or knowledge and to knowledge gathered in open Court from the evidence of a witness during trial [Venkataramana, AIR 1938 M 815 : 39 Cr LJ 958]. Knowledge based on anonymous letter may be sufficient for cognizance [Bhairaon, AIR 1928 A 756]. When complaint is filed by public prosecutor, cognizance is not on knowledge [Shewakram, 15 Cr LJ 369]. “Information” is a wider term than “complaint”. An invalid complaint may be treated as information under clause (c) for taking cognizance [Channu Lal v Rex, AIR 1949 All 692 : (1950) 51 Cr LJ 199 : 1950 All WR 147 : 1950 All Cr C 56]. [s 190.47] Information and complaint.— Distinction between information and complaint [Sheo Pratap, 53 A 208]. Information should contain facts sufficient to make out a prima facie case [Rash Behary, 35 C 1076]. Information may be received from any person named or unnamed [Hari Narain, 3 Cal WN 65; Bhairon, 30 Cr LJ 62], or from the report of a Magistrate [Sarat, 3 Cal WN CCLXII], or from a letter to a Magistrate [Chhotey, 25 Cr LJ 1147], or from application of opposite party [Omprakash Srivastava v Dudh Nath Srivastava, 1979 Cr LJ (NOC) 39 : 1979 All Cr R 402 (All)], or from evidence given by a witness [Raghv, 3 Cal WN cclxxix; Khudiram, 1 Cal WN 105], or in the course of police investigation [Nekram, 32 Cr LJ 370] or from an accused [Arunachala, AIR 1932 M 500].

One view is that information under clause (c) should be received as a Magistrate [Thakur, 10 Cal WN 775; Lakhi, 37 C 221—Stephen J] but the other view that it can be received in any capacity [Carnduff J, at p223 in Lakhi, supra; Sundarsan, 43 M 709; Venkataramand, AIR 1938 M 815; Naga Po, 31 Cr LJ 867] appears to be more correct as the object is to provide for extra-judicial information to vindicate justice and in order that there may be no cause for grievance the accused has been given the right to have the case tried by another Magistrate (section 191). It is the Magistrate’s duty to inform him of his right [Naraindas, AIR 1926 A 325; Baldeo, 1933 P 297; Rajratnam, AIR 1936 M 341]. Magistrate taking part in initiating proceedings is not incompetent to take cognizance of offence, but under section 479 he is debarred from trying this [Ozizullah, 50 C 135].

Page 32 of 34 [s 190] Cognizance of offences by Magistrates.— The information received must be recorded [Rash Behary, 35 C 1076, 1082; Thakur, 10 Cal WN 775; Mg Nyi, AIR 1926 R 46] and the accused is entitled to know what it is [Thakur, supra]. The informer need not be examined as in the case of a complaint under clause (a).

If in respect of complaint under section 476 (now section 340) it turns out that the offence was not in relation to any proceeding in Court, the Magistrate can act under clause (c) [Kumar, AIR 1938 P 83]. [s 190.48] Sections 190, 200 and 245.— Second complaint regarding the incidence could be filed even if the first was dismissed under section 245 [Hafiz Noorul Hasan, 1990 (27) ACC 112 ]. [s 190.49] Sections 190, 202 and 311.— When Court is not satisfied with evidence of private complainant under section 202 and summoned witnesses not examined, order taking cognizance by Court is not sustainable [Lalit Madhusudan Chand, 1990 East Cr C 92 (Pat)].

Where under sections 200 and 22, Code of Criminal Procedure, 1973 the statement of the complainant and his witnesses have been recorded, month, without pronouncing, the Magistrate can take cognizance [R Rajendra Reddi v Sujaya Feeds, 1995 Cr LJ 427 (Kant)]. [s 190.50] Tendering forged document in Court—Bar to take cognizance.— It is not the case of the complainant that forgery in respect of the letter was committed after the document was produced before the Court and, therefore, the bar under section 195, Code of Criminal Procedure, 1973 would not apply. Jitendra Chandrakant Mehta v Shamrock Impex Pvt Ltd, 2006 Cr LJ 3131 (3135) (Bom) : 2006 (1) Bom CR (Cri) 906 . [s 190.51] Complaint for offence of grievous hurt, wrongful confinement and quashing of proceeding.— Where the prayer for quashing of proceeding was made on the ground that the order taking cognizance being prior to completion of enquiry under section 202 was bad in law it cannot be sustained that enquiry or investigation under section 202 is to follow the order taking cognizance [Dr RP Sharma v Manmohan Mathur, 1995 Cr LJ 387 Ori HC]. [s 190.52] Information.— Where cognizance is taken on information alone, it is immaterial whether the informant discovered the facts legally or illegally [Ram Nath v State, (1979) Cr LJ 1145 : 1979 All Cr R 321 : 1979 All Cr C 278 (All)]. [s 190.53] Right of informant.— Where the Magistrate is of the view that he is not entitled to take cognizance, he must inform the informant of the FIR and give him opportunity to make his submissions [Bhagwant Singh v Commissioner of Police, AIR 1985 SC 1285 : 1985 Cr LJ 1179 : (1985) 2 SCC 537 : 1985 (1) Crimes 994 (SC)]. But after issue of process by the Magistrate on police report the informant need not be heard before discharge of the accused [Gurcharan Singh v Suresh Kumar Jain, (1988) Cr LJ 823 : (1987) 1 Reports 620 (Del)].

In a case there was allegation of cheating, forgery, by supply of defective machine under hire-purchase agreement. Uncontroverted allegation made out a prima facie case against petitioner. Held, merely because the transaction was commercial or money transaction, element of cheating would not allude from such transaction. For one transaction, the application may be held responsible for civil as well as criminal liability. [s 190.54] Quashing.— Writ jurisdiction may be exercised to quash the taking of cognizance if the proceedings are without jurisdiction or marked by mala fide [State v Mehar Singh, 1974 Cr LJ 970 : ILR (1973) 2 Punj 561 (P&H); Madhu Limaye v Ved Murti, AIR 1971 SC 2481 : 1971 Cr LJ 1715 : (1970) 3 SCC 739 (SC)].

Where the parties claimed right, title, interest and possession over the disputed land, order of cognizance under

Page 33 of 34 [s 190] Cognizance of offences by Magistrates.— section 190 was quashed, as the final police report revealed that it was purely civil dispute. [Brajnandan Singh Bhousle (Dr) v State of Jharkhand, 2010 Cr LJ (NOC) 1195 (Jhar) : 2010 (3) AIR Jhar R 244].

In view of the provisions contained in Section 462, Code of Criminal Procedure, 1973, the order of taking the cognizance cannot be quashed on the ground of lack of territorial jurisdiction if any. Chaya Khanna v State of UP, 2006 Cr LJ 3769 (3779) (All) : 2006 (2) All CrC 766.

The Magistrate’s action of taking cognizance cannot be quashed on merits Kapur RP v State of Punjab, AIR 1960 SC 866 : 1960 Cr LJ 1239 (SC); Superintendent v Ashutosh, 1960 Cr LJ 1239 : 1979 SC 1195 : 1979 Cr LJ 942 ; Municipal Corp of Delhi v Ram Kishan Rohtagi, AIR 1983 SC 67 : 1983 Cr LJ 159 : (1983) 1 SCC 1 (SC); Sevakram Sobhani v RK Karanjia, 1981 Cr LJ 894 : AIR 1981 SC 1514 : 1981 (3) SCC 208 (SC)].

The inherent jurisdiction of the High Court could not be invoked to quash the order of the Magistrate taking cognizance of offences under sections 500, 501 and 502 of Indian Penal Code, 1860. The inherent jurisdiction of the High Court under section 482, Code of Criminal Procedure, 1973 can be exercised to quash the proceedings either to prevent the abuse of the process of any Court or otherwise to secure the ends of justice. It is a settled law that ordinarily the criminal proceedings instituted against the accused persons should be tried and the High Court would be slow and reluctant to interfere with the proceeding at the interlocutory stage [KM Mathew v PK Thungon, 1990 Cr LJ 244 : 1990 (1) Crimes 51 (Gau) (SK Hom Chaudhary, J)].

Where the Magistrate did not discuss statements recorded under section 200 and 202, Code of Criminal Procedure, 1973 and he in a casual manner observed that from the statements recorded, offence under sections 363, 323, 506 Indian Penal Code, 1860 seemed to have been committed prima facie by the accused. Summoning order was held liable to be quashed [Gandhi Shah v Ramjanm Soni, 2010 Cr LJ (NOC) 407 (Utr)].

In a case, a sudden quarrel between parties resulting in assault with sharp weapon. Victim sustained several injuries and died one month thereafter due to such injuries. Held, Plea of absence of motive and intention could be considered in trial. In view of nature, dimension and seat of injuries weapon by which it was caused and caused of death and opined by doctor were sufficient to make out a prima facie case under section 302, Indian Penal Code, 1860. Framing of Charge, therefore, under section 302 could not be quashed [Satish Rai v State of UP, 2003 Cr LJ 180 (183) : 2002 All LJ 2450 : 2002 (45) All Cr C 958 : 2002 (3) All Cr R 2309 (All)].

The accused were charged under section 120B read with sections 500, 501 and 502, Indian Penal Code, 1860. Although the charge under section 120B could not be entertained by the Magistrate for want of sanction required under section 196 of Code of Criminal Procedure, 1973, the Magistrate could proceed with the trial in respect of the allegation of commission of substantive offence under sections 500, 501 and 502 of the Indian Penal Code, 1860. The inherent jurisdiction of the High Court could not be invoked to quash the order of the Magistrate taking cognizance of offences under sections 500, 501 and 502 of Indian Penal Code, 1860. The inherent jurisdiction of the High Court under section 482, Code of Criminal Procedure, 1973 can be exercised to quash the proceeding either to prevent the abuse of the process of any Court or otherwise to secure the ends of justice. It is a settled law that ordinarily the criminal proceeding instituted against accused persons should be tried and the High Court would be slow and reluctant to interfere with the proceeding at the interlocutory stage [KM Mathew v PK Thungon, 1990 Cr LJ 244 : 1990 (1) Crimes 51 (Gau) (SK Hom Chaudhiri J)].

In the instant case, the complainant had not produced any opinion of any other competent doctor to show that the death of the deceased took place due to rash or negligent act of the petitioner doctor. Even the postmortem of the deceased had not been conducted. At the time of inquiry neither the complainant nor the Court below had taken pain to examine any expert to show that the deceased died due to negligence or act of petitioner. The trial Magistrate did not follow mandatory provisions of section 202(2), Code of Criminal Procedure, 1973 by examining doctor as witness. It was held that no offence under section 304 or section 304A or 420, Indian Penal Code, 1860 was made out and that the order taking cognizance of offence was liable to be set aside [AR Srivastava (Dr) v State of Jharkhanad, 2010 Cr LJ 1539 (1541) (Jhar) : 2010 (1) AIR Jhar R 372].

Page 34 of 34 [s 190] Cognizance of offences by Magistrates.— Confessional statement of the co-accused per se is not evidence. Where there is no material except the statement of wife of the main accused, there was remote chance of the petitioner being convicted of the offence. [Biraja Panda v State of Orissa, 1996 Cr LJ 904 905 : 1996 (2) Crimes 351 : 1996 (1) Ori LR 85 (Ori)].

In case of murder, there were clear statements of witnesses to show that the deceased was murdered by none other than her husband. The evidence collected by the Investigating Officer by recording statements of prosecution witnesses was filed alongwith the charge-sheet and the same was duly considered by the Magistrate before taking cognizance. The High Court quashed the order taking cognizance. But, the order of High Court was held to be erroneous. The Court further held that the High Court has failed to take into consideration another important aspect that the case at hand relates to the grave offence of murder and that the criminal proceedings related thereto should not lightly be interfered with, which is a well-settled proposition of law. [Amanullah v State of Bihar, AIR 2016 SC 1871 : 2016 (4) SCJ 94 ]. [s 190.55] No prima facie case.— Where no prima facie case is made about cheating the complaint is liable to be quashed without cognizance being taken. [B Ramesh v State of Gujarat, 1998 Cr LJ 580 : 1997 (2) Guj LR 1655 : 1997 (1) Guj LH 360 (Guj); see also Ranjeet Datta v State of Bihar, 2011 Cr LJ 924 (Pat)]. [s 190.56] Search by the police.— Where the police have conducted a search in discharge of their official duty a complaint cannot be filed against it. [State of Bihar v Kamla Prasad Singh, AIR 1998 SC 2379 : 1998 Cr LJ 3601 : 1998 (3) Crimes 31 : (1998) 5 SCC 690 ]. [s 190.57] Reliance on investigation.— Trial Court must base its judgment on evidence produced at the trial and cannot rely on the investigation or result. [Vijendra v State of Delhi, (1997) 6 SCC 171 ]. [s 190.58] Jurisdiction regarding Scheduled Classes etc.— Where the Magistrate has territorial jurisdiction he can deal with cases under the Scheduled Classes etc Act. But he can deal with it only upto the pre-trial stage. After that he must transfer it to the Special Court. [Bhura Lal v State, 1999 Cr LJ 3552 (Raj-FB)].

Cognizance of offence under section 395, Indian Penal Code, 1860 taken by Magistrate by speaking order after evaluating evidence on record not liable to be quashed. [Bichitra Kumar Sahu v Sabitri Karan, 2002 Cr LJ NOC 50 : (2001) 21 OCR 75 (Ori)]. [s 190.59] Power of High Court to direct Magistrate to take cognizance.— The High Court cannot, in exercise of his powers under section 482 direct the Magistrate to take cognizance of offence where the Magistrate has not taken the cognizance of the offence. The remedy open to the complainant is to file a fresh complaint [V Bala Raju v Prakash Feeds Pvt Ltd, 2005 Cr LJ 1129 (1131) (AP) : 2005 (1) Andh LT (Cri) 159 : 2005 (4) Bank Cas 240]. [s 190.60] Powers of Special Court to take cognizanceThe complainant alleged that accused, company, its directors etc. conspired to cheat complainant and also made false declarations with regard to record of company. The Supreme Court held that the Special Court constituted for trial of economic offences can take cognizance and try offences under both Indian Penal Code, 1860 and Companies Act. The court further held that the complaint cannot be quashed on ground that complainant did not belong to any categories or persons entitled to file complaint under section 621 of the Companies Act.[S Satyanarayana v Energo Masch Power Engg & Const PL, AIR 2015 SC 2166 ]. [s 190.61] Revision against refusal to take cognizance.— The Magistrate refused to take cognizance. This order is revisable by Session Court under the revisional jurisdiction after giving proper opportunity to accused. The same cannot be interdicted by Supreme Court under Article 136 of the Constitution. [Balveer Singh v State of Rajasthan, AIR 2016 SC 2266 : 2016 (7) SCJ 311 ]. End of Document

[s 191] Transfer on application of the accused.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER XIV CONDITIONS REQUISITE FOR INITIATION OF PROCEEDINGS

The Code of Criminal Procedure, 1973 CHAPTER XIV CONDITIONS REQUISITE FOR INITIATION OF PROCEEDINGS [s 191] Transfer on application of the accused.— When a Magistrate takes cognizance of an offence under Clause (c) of sub-section (1) of Section 190, the accused shall, before any evidence is taken, be informed that he is entitled to have the case inquired into or tried by another Magistrate, and if the accused or any of the accused, if there be more than one, objects to further proceedings before the Magistrate taking cognizance, the case shall be transferred to such other Magistrate as may be specified by the Chief Judicial Magistrate in this behalf. [s 191.1] STATE AMENDMENTS IN SECTION 191 Punjab.—The following amendments were made by Punjab Act No. 22 of 1983 (w.e.f. 27 June 1983).

S. 191.—In section 191, for the words, brackets and figures “Clause (c) of sub-section (1) of section 190”, substitute the word, figures and letter “section 190A,” and for the word “Magistrate” wherever occurring, and the words “Chief Judicial Magistrate” substitute the words “Executive Mag-istrate” and “District Magistrate”.

Union Territory of Chandigarh.—The following amendments were made by (Punjab Amend-ment) Act, 1983 (Act 22 of 1983).

S. 191.—Amendment of section191 as under—

Section 191 shall be so read as if for the words, brackets and figures “Clause (c) of sub-section (1) of section 190”, the word, figures and letter “section 19A,” were substituted and for the word “Magistrate” wherever occurring, and the words “Chief Judicial Magistrate” the words “Executive Magistrate” and “District Magistrate”, respectively, were substituted. COMMENTS [s 191.2] Changes.— Section 191 corresponds to old section 191 redrafted.

The change introduced is that the alternative provision and thus the possibility of the Magistrate’s going on with the inquiry in order to commit to the Court of Session in spite of the accused’s objection to further proceedings

Page 2 of 2 [s 191] Transfer on application of the accused.— before the Magistrate taking cognizance under section 190(1)(c), as existed under the old section has been done away with. [s 191.3] Scope and application of section 191.— It proceeds on the principle that the prosecutor accused has been given the right to be tried by a Magistrate other than the one who took cognizance under section 190(1)(c) [Shewakram, 15 Cr LJ 369]. It is obligatory on the Magistrate to tell the accused of this right [Hawthorne, 13 A 345] and failure to do so vitiates the trial [Jamuna Singh v Emperor, (1947) 48 Cr LJ 799 ]. The words “before any evidence is taken” indicate that the accused should be informed at an early stage and not when any evidence has gone against him. It is desirable to record that the accused has been informed.

Though the section is confined to “offences” and does not therefore apply to proceedings under chapter VIII[Mithu, 27 A 172; Md Ally, 27 Cr LJ 1280; Rasulbux, AIR 1942 SC 122 ] its principle has been held applicable to such proceedings [Alimuddin, 29 C 392; Godhan, 4 PLJ 7] and proceedings under section 147 [Ram Asis, 4 PLJ 9]. Where Deputy Commissioner, Garo Hills took cognizance irrespective of whether the section of the principles applied, failure to inform the accused is sufficient to quash the proceedings [Dulichand Bothra v State, AIR 1971 A & N 14 : 1971 Cr LJ 35 : 1970 Ass LR 122].

As under section 7 (2) read with section 8 (1), Criminal Law (Amendment) Act (46 of 1952) no one other than the Special Judge for the area can try the offence in section 6(1), section 191 has no application even if it is assumed that he takes cognizance under section 190 (1)(c) [Nil Madhab Patnaik v State, AIR 1955 Pat 317 : 1955 Cr LJ 1089 : 1954 BLJR 577 ]. [s 191.4] Right of transfer of case.— The direction to inform the accused is mandatory; otherwise, the trial is illegal and cannot be cured by section 465 [Hawthorne, supra; Chedi, 28 A 212; Mahadeo, 41 A 164; Ram Ratan, AIR 1921 A 286; Sommun, AIR 1926 L 627; Bodha, AIR 1921 L 235; Jamuna Singh v Emperor, (1947) 48 Cr LJ 799 ; Ananta, 17 Cal WN 785; Chander, AIR 1923 A 383; Naipal, AIR 1924 O 448; Naraindas, AIR 1926 A 325; Malak, AIR 1934 L 210; Sardar, AIR 1934 A 693; Arjan, AIR 1939 L 479. The refusal of a request for transfer is illegal [Raghunandan, AIR 1936 P 639]. See also”Waiver” infra.

The accused’s right is to be tried by another Court and not by a particular Court of his choice [Shriniwas, 2 Cr LJ 582; 7 Bom LR 637]. So, a successor of the Magistrate who acted under section 190(1)(c) can try without transfer [Panu Samal, AIR 1940 P 111]. A Magistrate proceeding under section 190(1)(c) cannot also hear an appeal from that case [Bansi, 12 Cal WN 438—Contra Inayat, 1899 AWN 74, 75]. [s 191.5] Waiver.— There is no waiver or acquiescence until the accused is distinctly told of his right [Chander, AIR 1923 A 383]. Silence of the accused is no waiver of right though defended by pleader [Raghab, 3 Cal WN CCLXXIX]. Even a waiver will not enable the Magistrate to try if he is debarred by any other section eg, section479 [Md Shah, 1 SLR 98]. Rule of waiver is not applicable to criminal cases. The accused can consent to nothing and it cannot be invoked against irregularity in procedure [Dy Legal Rem, 12 Cal WN 140; Kottam, 46 M 117; Bholanath, 2 C 23, 30]. Informing theaccused is mandatory [State of Kerala, In the Matter of AIR 1969 Ker 111 : 1969 Cr LJ 486 : 1969 Ker LT 511 : 1969 Mad LJ (Cri) 90].

End of Document

[s 192] Making over of cases to Magistrates.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER XIV CONDITIONS REQUISITE FOR INITIATION OF PROCEEDINGS

The Code of Criminal Procedure, 1973 CHAPTER XIV CONDITIONS REQUISITE FOR INITIATION OF PROCEEDINGS [s 192] Making over of cases to Magistrates.— (1) Any Chief Judicial Magistrate may, after taking cognizance of an offence, make over the case for inquiry or trial to any competent Magistrate subordinate to him. (2) Any Magistrate of the first class empowered in this behalf by the Chief Judicial Magistrate may, after taking cognizance of an offence, make over the case for inquiry or trial to such other competent Magistrate as the Chief Judicial Magistrate may, by general or special order, specify, and thereupon such Magistrate may hold the inquiry or trial. [s 192.1] STATE AMENDMENTS IN SECTION 192 Punjab.—The following amendments were made by Punjab Act No. 22 of 1983 (w.e.f. 27 June 1983).

S. 192.—In section 192, for the words “Chief Judicial Magistrate”, and the words “Magistrate of the First Class” or “Magistrate” wherever occurring, substitute the words “District Magistrate” and “Executive Magistrate” respectively.

Union Territory of Chandigarh.—The following amendments were made by (Punjab Amend-ment) Act, 1983 (Act 22 of 1983).

S. 192.—Amendment of section192 as under—

Section192 shall be so read as if for the words “Chief Judicial Magistrate”, and the words “Magistrate of the first class,” or “Magistrate” wherever occurring, the words “District Magistrate” and “Executive Magistrate”, respectively, were substituted. COMMENTS [s 192.2] Changes.— Section 192 corresponds to old section 192 redrafted.

By substituting the expression “after taking cognizance of an offence make over the case “for” transfer any case, of which he has taken cognizance” it has been made clear that the section has nothing to do with transfer of a case other than a case involving an offence. [s 192.3] Scope and application of section 192.—

Page 2 of 5 [s 192] Making over of cases to Magistrates.— It provides for transfer of cases from the file of the Magistrate taking cognizance of an offence to a competent Magistrate subordinate to him for inquiry or trial so that work may be distributed for administrative convenience. Under sub-section (1), Chief Judicial Magistrates who have taken cognizance of an offence are empowered to transfer the case to subordinate Magistrates; they have also a general power of transfer, under section 410(1). Under sub-section (2), any First Class Magistrate who having power to take cognizance [see section 190(1)] has taken cognizance of an offence may be empowered by the Chief Judicial Magistrate to transfer the case to any other specified Magistrate in his district competent to try the accused. Chief Judicial Magistrate in his district competent to try the accused. Chief Judicial Magistrate transferring under sub-section (1) to any subordinate Magistrate can withdraw or recall and try the case himself or make it over to another Magistrate [section 410(1)]; but a Magistrate transferring under sub-section (2) can only recall and try the case himself [section 410(2)]. A sub-divisional (judicial) Magistrate can by virtue of section 35(1) transfer a case consequent upon cognizance taken by his predecessor [Bholanath Dhar v Gour Gopal, AIR 1953 Cal 777 : 1953 Cr LJ 1782 : 58 Cal WN 11]. Certain cases must be transferred to another Magistrate (section 479). Transfer by a Sessions Judge [sections 408, 409 (3)]. Transfer by High Court (section 407)]. Transfer by Supreme Court (section 406). [s 192.4] Transfer under Sub-section (1).— May be made as soon as the transferring Magistrate has taken cognizance of the offence which means merely “taken seisin” [Hafizar, 44 Cal WN 1114 : AIR 1941 C 185; The Asiatic Oxygen and Acetylene Co v State, 1976 Cr LJ 1596 : (1976) 3 Cal HC (N) 189 : 80 Cal WN 378], or before the issue of process [Asaram, 12 Cr LJ 437], or before the appearance of the accused [Dalu Gour v Moneswar Mahato, AIR 1948 Pat 25 : (1947) 48 Cr LJ 347 : 229 IC 262], or immediately after the examination of complainant as such as at a latter stage, e.g., after summons and appearance of the accused [Hafizar, supra Bashir, 14 A 346; Eqbal, 20 Cr LJ 413], or after hearing the prosecution witnesses and framing a charge [Shanmuga, 57 M 827 : 35 Cr LJ 1055. In this case it was held that Tota Venkanna, 2 Weir 152, cannot be held to be good law because of the enactment of subsection (3) to section 350 in 1923 (now section 326(2)]. In an identical case (relying to Tota Venkanna, supra it was held that when the proceedings have reached the stage of enquiry or trial, wholly or partially, section 192 cannot be availed of, and so a transfer after examination of prosecution witnesses and framing of charge is illegal [Re Natesan Servai, AIR 1951 Mad 529 : (1951) 52 Cr LJ 177 : 1950 (2) Mad LJ 545 : 63 Mad LW 1048; Natesan, supra, was followed in Re Ganesa Pillai, AIR 1961 Mad 342 : 1961 (2) Cr LJ 244 : 1961 (1) Mad LJ 271 : 1961 Mad LJ (Cri) 178]. But a case cannot be transferred after all evidence on both sides has been taken [Radhe, 12 A 66]. In Chintamon, 35 C 243, however, there was transfer of a part heard case; but such transfer is undesirable [Mahazar, 50 C 233] and should be made only in exceptional circumstances [Kisni, AIR 1937 N 103]. As to acting on evidence already recorded, see section 326. Transfer of a case after discharging the accused is illegal [Kartick, AIR 1921 P 205].

On averment which had been made in the FIR and which have to be taken to be true for the purpose of discerning the territorial jurisdiction, the wife of the complainant and his family members were taken away by the opposite party from the house situated within the territorial jurisdiction of a Court in “B”. Thus the order the Chief Judicial Magistrate at making over the case from place “B” to place “H” without affording an opportunity to the complainant of being heard was completely erroneous and thus liable to be quashed. [Sitaram Sah v State of Bihar, 2011 Cr LJ 1253 (1255) (Pat)].

The moment the Magistrate looks into the petition of complaint for the purpose of making over the same for inquiry or trial to another Magistrate under section 192, Code of Criminal Procedure, 1973, he takes cognizance of the offence, and no formal action is required [Md Abdulla Khan v State of Bihar, 2002 Cr LJ 3875 (Pat) : 2002 (1) Pat LJR 639 : 2002 (1) East CrC 302 ]. [s 192.5] Transfer by transferee Court.— The section does not apply to cases which have already come to the Magistrate by transfer [Darra, 15 Cr LJ 357; Bashir, 36 A 166]. A transfer by district (Chief Judicial) Magistrate to Magistrate with instruction “to try is himself or make it over to another Magistrate” and a transfer by the latter is bad as he has no power to transfer, but the defect is curable by section 460(f) [Rajamohan, 5 Cal WN 686].

When the High Court transfers a case from a subordinate Court to the district (Chief Judicial) Magistrate, he should try himself unless power to transfer is given in the order. But, when the transfer is from one district

Page 3 of 5 [s 192] Making over of cases to Magistrates.— (Chief Judicial) Magistrate to another district (Chief Judicial) Magistrate, then unless the contrary is expressed, the latter may transfer the case to a subordinate Magistrate [Mata Pd, 19 A 249; Kishen, 18 Cr LJ 881]. [s 192.6] Taking cognizance of an offence is the foundation of jurisdiction to transfer.— To make a valid transfer by a Chief Judicial Magistrate under sub-section (1) or an empowered Magistrate under sub-section (2), he must have taken cognizance of the offence. Jurisdiction to transfer is founded on the transferring Magistrate’s taking cognizance under section 190 [see Khudiram Ghosh v State, AIR 1953 Cal 573 : 1953 Cr LJ 1355 : 57 Cal WN 512; Darra, 15 Cr LJ 357; Bashir, 36 A 166]. Only the Magistrate taking cognizance or his successor-in-office is competent to transfer a case for disposal [SN Dubey v Devi Kant Jha, AIR 1971 Pat 15 : 1971 Cr LJ 77 : 1970 Pat LJR 103 ; (Krishnadeo Prasad v Budhni, AIR 1965 Pat 1 FB : 1965 Cr LJ 58 : 1964 BLJR 747 followed)]. The transfer contemplated in section 192 is only if cases in which cognizance of an offence has been taken Cf Mowv v Superintendent, Special Jail Nowgong, (1971) 3 SCC 936 : 1972 SCC (Cri) 184 (SC). If a Magistrate without taking cognizance of an offence sends a complaint filed before him to another Magistrate “for disposal” who orders an investigation under section 156(3), the sending of the complaint to the latter Magistrate is not a transfer but only by way of administrative action [Gopaldas Sindhi v State of Assam, AIR 1961 SC 986 : 1961 (2) Cr LJ 39 (SC)]. As to when cognizance may be said to have been taken, See ante, section 190. [s 192.7] Cases other than those relating to offences.— The section has nothing to do with transfer of a case other than a case involving an offence, eg, proceedings under sections 108 to 110 and 125. These proceedings may be transferred by the Chief Judicial Magistrate under general power of transfer under section 410 (1) and by the Sessions Judge under section 408. It may be noted that proceedings under sections 107, 133, 144 and 145 being before executive Magistrates do not at all also come under the purview of this section. For transfer of cases of this kind. See section 411. [s 192.8] Defective transfer.— Transfer by a Magistrate other than one who took cognizance of an offence is a defect of jurisdiction not curable by section 465. It may, in a proper case, be rendered valid by section 460(f) [Ram Krishna, 42 Cal WN 246]. Where during the absence of a First Class Magistrate who had taken cognizance of a case, another first Class Magistrate empowered to deal with the general file transferred the case to himself for trial, the illegality was not cured by section 460(f), for though the transfer may have been in good faith for public convenience, it was not made erroneously as the Magistrate knew that he had not taken cognizance of the offence [Khudiram Ghosh v State, AIR 1953 Cal 573 : 1953 Cr LJ 1355 : 57 Cal WN 512]. In a similar case it has been held that a Magistrate who without taking cognizance of an offence transfers the case under sub-section (2) in disregard of the decisions prohibiting such transfer, it cannot be said to have been done “erroneously in good faith” [Tulsibala Rakhit v Khosal, AIR 1953 Cal 109 : 1953 Cr LJ 344 : 57 Cal WN 193]. Where the district (Chief Judicial) Magistrate taking cognizance of an offence transferred the case to a Magistrate for trial, but the latter being absent the Sub-Divisional Magistrate took the case to his file for trial, it was incompetent as he had not taken cognizance of it [Kshirode Gopal Saha v State, AIR 1955 Cal 110 : 1955 Cr LJ 384 : 58 Cal WN 765]. [s 192.9] Procedure.— Unlike section 412 an order of transfer need not be in writing [Rama Kr, 42 Cal WN 246; Hafizar, 44 Cal WN 1114]. An order of transfer under section 528 (now sections 408–411)], but it does not appear that any notice is necessary under this section. Transfer is sometimes made even before the process is issued or the accused has appeared [Umashankar Vidyarthi v State of Bihar, 1975 Cr LJ 1954 : 1975 BBCJ 531 (Pat)]. [s 192.10] How much of case is transferred.— Where there is no reservation in the order, it is to be taken that the whole case has been transferred [Ajab, 32 C 783; Azim, 7 CLJ 249; Hafizar, 44 Cal WN 1114 : AIR 1941 C 185]. Thus, where only some of several persons named in the police report were sent up and after transfer of the case to a Magistrate he refused to issue process against the others, the whole case being transferred, the transferring Magistrate has no power to issue such process or to pass any order in the case until he withdraws it under section 528; Hemendra, 55 C 1274 : 30 Cr LJ 352; Golam, 36 Cal WN 796; Hafizar, AIR 1941 Cal 185 , Skh Mounat, AIR 1921 P 474; Mathura, AIR 1934 P 467]. The legality of a piecemeal transfer is doubtful. But assuming it is legal in certain circumstances, the portion not transferred must be clearly indicated in the order [Hafizar, supra]. A later case has held that there can be no piecemeal transfer [Pran Krishna Das v Shyam Sundar Sarkar, AIR 1949 Cal 637 : (1950) 51 Cr LJ 205 : 54 Cal WN 228]. [s 192.11] Jurisdiction after transfer.— After a transfer the jurisdiction of the transferring Magistrate ceases altogether and he (transferee Magistrate)

Page 4 of 5 [s 192] Making over of cases to Magistrates.— has full seisin of the case not only in regard to the persons actually put up for trial but against all persons who may be found to be concerned in the offence and the transferring Magistrate has no power to issue any process or to pass any order except under section 528 (now section410) or chapter XXX[Hafizar Province of Bihar v Bhim Bera, AIR 1947 Pat 284 : ILR 25 Pat 539; Skh Maunat, AIR 1921 P 474; see Madhusudan, AIR 1926 P 358; Deonarain, 12 P 341; Bishen, 4 Cal WN 560, Radhaballav, 30 C 449; Hemendra, AIR 1929 C 192]. The Magistrate transferring a case parts with jurisdiction and cannot take any further steps so long as he does not withdraw it [Golapdi, 27 C 979]. Case transferred cannot be returned to the transferring Magistrate for issue of process under section 204, but the transferee Magistrate must take all requisite steps and complete the trial himself [Hafizar, AIR 1941 Cal 185 ]. [s 192.12] “For inquiry or trial”.— Since under the new Code, section 192 applies only to cases after taking cognizance of an offence and is thus restricted to cases involving offences only, no question of transfer of any such case for “inquiry” to another Magistrate appears to be possible. For, inquiries or the proceedings under sections 108 to 110 and 125 (though before the Judicial Magistrate) are not cases involving offences and section 192 does not apply to them. Preliminary inquiries which took place in regard to sessions triable cases under chapter XVIII of the old Code have been wholly abolished in the new Code and the inquiries or proceedings under sections 107, 133, 144 and 145, apart from not involving offences are executive proceedings before Executive Magistrates and also as such not attracted at all by section 192. The word “inquiry” here means an inquiry under section 209 and not under section 202 [Jailok, AIR 1980 P 126, 133 FB]. As respects warrant cases, an order “for inquiry and trial” may be passed as trial in a warrant case starts with the framing of charge; prior to it the proceedings are only inquiry [Ratilal Bhanji Mithani v State of Maharashtra, AIR 1979 SC 94 , 101 : 1979 Cr LJ 41 : (1979) 2 SCC 179 (SC)]. This now holds good in respect of warrant cases instituted otherwise than on a police report as (under the new Code) in warrant cases instituted on police report, the proceedings in sections 238 to 240 amounts to a trial from beginning to end [VC Shukla v State, AIR 1980 SC 962 , 985 : 1980 Cr LJ 690 (SC)]. [s 192.13] Transfer for investigation.— The section does not empower the Magistrate to transfer a case simply for considering the report of an investigation under section 202 which he had himself ordered [Mahabir, 29 Cal WN 508 : AIR 1925 C 742; Suntokh, AIR 1940 L 61; see however Kapoor Chand, AIR 1933 A 264, 266 : 55 A 301]. Section 192 provides for the transfer of the whole case and not the transfer of a particular portion of the case to another Magistrate with direction to decide a particular issue or point and to send the case back to the transferor Court [Pran Krishna Das v Shyam Sundar Sarkar, AIR 1949 Cal 637 : (1950) 51 Cr LJ 205 : 54 Cal WN 228]. [s 192.14] Cases heard in part.— As the words are “inquiry or trial”, a case cannot be tried by the transferee Magistrate if the transfer is for inquiry. It appears that without regard to the wording of the section some Magistrate are inclined to record a nebulous order like “For disposal” or “For inquiry and disposal”. Whatever that may mean, it does not appear to be a proper order. The purpose of the transfer should be clearly stated, i.e., either for inquiry or for trial. the section allows transfer “for inquiry or trial”, but once a case has been heard in whole or in part there can be no transfer under section 192 [Re Natesan Servai, AIR 1951 Mad 529 : 1951 Cr LJ 177 : 1950 (2) Mad LJ 545 : 63 Mad LW 1048; see ante:”Transfer under sub-section (1)”]. [s 192.15] Transfer for disposal.— Where an Addl District Magistrate without taking cognizance of a complaint filed before him sent to another Magistrate “for disposal”, who sent it to police for, investigation under section 156(3); it was held that the sending of the complaint to another Magistrate was by way of an administrative action [Gopaldas Sindhi v State of Assam, AIR 1961 SC 986 : 1961 (2) Cr LJ 39 (SC)].

When in respect of some accused no material against them is available on record, no process should be issued against them [Sanichar Rai, 1990 (1) BLJ 647 ]. [s 192.16] “To any competent Magistrate subordinate to him”.— [See sections 15(1), 19(1)]. The section is also applicable to Chief Metropolitan Magistrate and Metropolitan Magistrate (see section 3). The subordinate Magistrate receiving by transfer has the same authority to deal with the case as regards issuing of processes and other matters as the superior Magistrate who transfers [Hafizar, 44 Cal WN 1114].

Page 5 of 5 [s 192] Making over of cases to Magistrates.— Under sub-section (1), the Chief Judicial Magistrate can transfer to a subordinate Magistrate a case which the latter cannot initially take cognizance of, but is otherwise competent to try eg, a case under the Cattle Trespass Act which he cannot take cognizance of (section 20 ibid) but can try (schedule 1, last clause) [Budhan, 34 C 926; Viswanath, 44 B 42; Deena Dayalu, 50 M 841; Harihar Ojha v Laxami Jena, AIR 1959 Ori 116 : 1959 Cr LJ 884 : ILR (1958) Cut 549 ]. The transfer must be to a Magistrate empowered to try the case, otherwise the trial would be void under section 461 [Hafizar, supra; Khuda Baksh, AIR 1933 L 1009; Mathra, AIR 1940 O 244].

Transfer of calendar cases triable by a First Class Magistrate to Second Class Magistrate with a direction to treat them as preliminary registered cases with the intention of committal is open to objection [Ramasubbaya, AIR 1938 M 529]. A Sub-Divisional (Judicial) Magistrate to whom a case is transferred cannot transfer it to another Magistrate subordinate to him [Bashir, 36 A 166; see Rajmohan, 5 Cal WN 686]. Although there can be no transfer by a transferee Magistrate, such an order is curable under section 460(f) [Inder Jit Singh v Ram Pal Singh, AIR 1951 All 371 ]. [s 192.17] Sub-section (2).— Taking cognizance of an offence is the foundation of jurisdiction to transfer either under sub-section (1) or subsection (2) (see ante). Under sub-section (2) the Chief Judicial Magistrate may empower a First Class Magistrate who has taken cognizance of an offence to transfer, the case to any other Magistrate in the district competent to try it. To make a valid transfer two conditions are necessary : the Magistrate to be empowered must necessarily possess the requisite power under section 190(1) to take cognizance of an offence and (ii) he must be one “who has taken cognizance of any offence”. So, even if a First Class Magistrate be empowered under sub-section (2), transfer of a case by him would be illegal if he has not taken cognizance of the offence [Tulsibala Rakhit v NN Khosal, AIR 1953 Cal 109 : 1953 Cr LJ 344 : 56 Cal WN 193; Khudiram Ghosh v State, AIR 1953 Cal 573 : 57 Cal WN 512 : 1953 Cr LJ 1355 ]. The judgment in Tulsibala’s case, might cause the impression that it was stressed that before a Magistrate becomes competent to receive the power under subsection (2) he must have already taken cognizance of the offence. If that is what is meant, it is submitted that it does not appear to be correct. Any First Class Magistrate can be empowered any time by a general order, but he can exercise the power and make a valid transfer of a case only in respect of an offence of which he has taken cognizance. The transferring Magistrate may transfer the case as soon as he has taken cognizance and the transferee Magistrate has full authority to deal with the case and issue processes if necessary [Asiatic Oxygen and Acetylene Co v State, 80 Cal WN 378 : 1976 Cr LJ 1596 : 1976 (3) Cal HCN 189]. The transferring Magistrate can recall the case and inquire into or try it himself [section 410(2)], but he cannot retransfer it to another Magistrate. End of Document

[s 193] Cognizance of offences by Courts of Session.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER XIV CONDITIONS REQUISITE FOR INITIATION OF PROCEEDINGS

The Code of Criminal Procedure, 1973 CHAPTER XIV CONDITIONS REQUISITE FOR INITIATION OF PROCEEDINGS [s 193] Cognizance of offences by Courts of Session.— Except as otherwise expressly provided by this Code, or by any other law for the time being in force, no Court of Session shall take cognizance of any offence as a Court of original jurisdiction unless the case has been committed to it by a Magistrate under this Code. [s 193.1] Changes.— Section 193 corresponds to sub-section (1) of old section 193 with substitution of the words “case” and “under this Code” for “accused” and “duly empowered in that behalf” respectively. The scheme of commitment has been modified, See Law Commission, 41st report, vol 1, chapters XV and XVIII. [s 193.2] Scope and application of section 193.— Sections 193 and 195 to 199 regulate the competence of the Court and bar its jurisdiction in certain case excepting in compliance therewith [HN Rishbud v State of Delhi, AIR 1955 SC 196 : 1955 Cr LJ 526 ]. The section says that except as otherwise expressly provided, no Sessions Court can take cognizance of any offence without any commitment by a Magistrate. [Ujjagar Singh v State of Haryana, 2003 Cr LJ 1691 : 2003 (1) Rec Cr R 398 (P&H)]. In the present Code, committal has been made a formal affair by omitting altogether committal proceedings. When an offence is exclusively triable by a Court of Session the Magistrate shall commit the accused to the Court of Session [section 209]. “Except as otherwise expressly provided” [See sections 199, 345(1), 349; Ddo, 16 Cr LJ 573; Maula Khan, 6 Cr LJ 7]. Offences triable by Sessions Court (section 26). For the new scheme, see Muniswamy State of Karnataka, 1976 Cr LJ 763 : 1976 (1) Kant LJ 84 : 1975 Mad LJ (Cri) 690 (Kant)].

The opening words of section 193 of the Code categorically recite that the power of the Court of Sessions to take cognizance would commence only after committal of the case by a Magistrate. The said provision opens with a non-obstante clause “except as otherwise expressly provided by this code or by any other law for the time being in force”. The section therefore is clarified by the said opening words which clearly means that if there is any other provision under the Code, expressly making a provision for exercise of powers by the Court to take cognizance, then the same would apply and the provisions of section 193 of the Code would not be applicable [Hardeep Singh v State of Punjab, AIR 2014 SC 1400 : (2014) 3 SCC 92 : 2014 Cr LJ 1118 (SC)].

Session Courts has jurisdiction on committal of a case to it, to take cognizance of the offences of the persons not named as offenders but whose complicity in the case would be evident from the materials available on record. Hence, even without recording evidence, upon committal under section 209, the Session Judge may

Page 2 of 3 [s 193] Cognizance of offences by Courts of Session.— summon those persons shown in column 2 of the police report to stand trial along with those already named therein [Dharam Pal v State, AIR 2013 SC 3018 ].

The first part of section 194 clearly provides that the Sessions Judge of the Division by general or special rule is supposed to allot cases arising in a particular area or jurisdiction to be tried by Additional or Assistant Sessions Judges appointed in the Division. But the last part of section 194 also authorises the High Court to allot the case to a particular Juddge. In certain cases, the Sessions Judge may not like to allot and may report to the High Court, then either of the parties may move an application for transfer, and under these circumstances, it may become necessary for the High Court to allot a particular case to a particular Judge [Kehar Singh v State (Delhi Administration, AIR 1988 SC 1883 : 1989 Cr LJ 1 : (1988) 3 SCC 609 : 1988 (2) Crimes 981 ].

The moment the Magistrate commits the case to the Court of Sessions under section 209 Code of Criminal Procedure, 1973, he becomes functus officio for that case and hence he cannot again take cognizance of the same offence which would include summoning of any other persons. After commitment, Section 193, Code of Criminal Procedure, 1973 comes to play its role [Sri Niwas Prasad v State of Bihar¸ 2007 Cr LJ 4498 (Pat)]. [s 193.3] No trial in sessions without commitment.— The section imposes an interdict on all Courts of Session against taking cognizance of any offence as a Court of original jurisdiction. It can take cognizance only if “the case has been committed to it by a Magistrate” as provided in the Code. Two segments have been indicated in section 193 as exceptions to the aforesaid interdict. One is, when the Code itself has provided differently in express language regarding taking of cognizance, and the second is when any other law has provided differently in express language regarding taking of cognizance of offences under the law [Gangula Ashok v State of AP, AIR 2000 SC 740 : 2000 Cr LJ 819 : (2000) 2 SCC 504 : 2000 (1) Crimes 196 ]. Trial in sessions without commitment is ultra vires. Even if a Sessions Judge holds that an approver is violating the conditions of pardon, he can be tried only after commitment [Rama Tevan, 15 M 352; Jagat, 22 C 50] : the defect cannot be cured by section 465 [Sharina, 1884 PR 42 ]. Without commitment, the Sessions Judge cannot take cognizance of offence as well as offender. He cannot therefore join a person as co-accused when he holds that he too should be tried. His duty is to invite the attention of the public prosecutor and the District Magistrate for taking action [Mir Fateh, AIR 1942 SC 161 , But see now Joginder Singh v State of Punjab, AIR 1979 SC 339 : 1979 Cr LJ 333 : (1970) 1 SCC 345 (SC)]. Special Judge functioning under the Criminal Law (Amendment) Act, 1952 can take cognizance of certain offences without the accused being committed [State v Shankar Bhaurao Khiraode, AIR 1959 Bom 437 : 1959 Cr LJ 1153 : 61 Bom LR 591 : ILR (1959) Bom 1088 ; PS Sadagopachari v State, AIR 1966 Mad 432 : 1966 Cr LJ 1452 : 1966 (1) Mad LJ 298 : 1966 Mad LW (Cri) 65 : 1966 Mad WN 113; Pancham Singh v State, AIR 1967 Pat 416 : 1967 Cr LJ 1677 : 1967 BLJR 411 ]. [s 193.4] Meaning of “Cognizance”.— From the language of section 193 and definition of “offence” in section 2(n), it seems to follow that the prohibition in section 193 is against taking cognizance of the act or omission unless there is a commitment therefore and not against taking cognizance of a different mens rea or a subsequent consequence of the act punishable under a different provision of law. Where the committal is under only section 307, Indian Penal Code, 1860 and the injured person dies after the committal the charge and trial under section 302 is proper [Pandaran Mani v State of Kerala, AIR 1966 Ker 1 FB : 1966 Cr LJ 22 : 1965 Ker LT 620 : 1965 Mad LJ (Cri) 826 : 1965 Ker LJ 622 ; (Birendra, 32 C 22 : 1 Cr LJ 749; Hassenulla, AIR 1924 C 625; Muthu Goundan, AIR 1920 M 131 relied on)].

Where the Sessions Judge took cognizance of offence without the case committed by Magistrate, entire proceedings against accused are liable to be vitiated [Athimula Gounder v State of TN, 2007 Cr LJ 271 (Mad)]. [s 193.5] Sections 193 and 309.— Both under section 193 and section 209 the commitment is of “the case” and not of accused unlike under section 193(1) and section 207A of the old Code [Joginder Singh v State of Punjab, AIR 1979 SC 339 : 1979 Cr LJ 333 : (1979) 1 SCC 345 : (1979) SCC (Cri) 295 (SC)]. [s 193.6] Exceptions.—

Page 3 of 3 [s 193] Cognizance of offences by Courts of Session.—

See sections 199(2), 344, 345, 349, 350 and Ananta Singh v State of WB, (1976) Cr LJ 1609 : 80 Cal WN 344 : (1976) 3 Cal HN 321 (Cal)]. [s 193.7] Sections 193 and 319.— When a case is committed to the Court of Session in respect of an offence under section 193 read with section 209 the Court of Session takes cognizance of the offence and not of the accused, and such Court under section 319(1) can add any person, not an accused before it, who appears to be involved in the crime from the evidence led, to be tried along with the other accused [Joginder Singh v State of Punjab, AIR 1979 SC 339 : 1979 Cr LJ 333 : (1979) SCC (Cri) 295 ; (Patananchala China Lingaiah v State, 1977 Cr LJ 415 : 1977 (2) APLJ 39 : ILR (1977) AP 304 (AP) overruled); Waryam Singh v State of Punjab, 1978 Cr LJ 762 : 80 Punj LR 228 : 1977 Punj LJ (Cri) 370 (AP) (P&H); State v Mohd Zaman, 1981 Cr LJ 783 : 1981 Kash LJ 221 : 1981 Chand Cr C 6 (J&K); see also section 319].

In a MP Case, it has been held that the Sessions Court has no jurisdiction to add new person of its own. Unless he has been sent for the trial through the committal order passed by the Magistrate [Jagdish Singh v State of MP, 2006 Cr LJ 996 (997) (MP) : 2006 (1) Crimes 112 ]. [s 193.8] Scheduled Classes—Special Courts.— To offences under the Scheduled Classes etc. Act, Section 193 has no application as special Courts function for the trial of such cases.—[Bhura Lal v State, 1999 Cr LJ 3552 (Raj—FB)]. A Special Court constituted under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act (33 of 1989) essentially is a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. The complaint or the charge-sheet cannot straightway be laid before the Special Court under the Act [Gangula Ashok v State of AP, AIR 2000 SC 740 : (2000) 2 SCC 504 : 2000 SCC (Cri) 488 : 2000 (1) Crimes 196 (SC). see Bandarn v State of AP, 2001 Cr LJ 1889 : 2000 (2) Andh LT (Cri) AP 84 (AP). Vidyadharan v State of Kerala, AIR 2004 SC 536 : 2004 Cr LJ 605 : 2004 (1) SCC 215 : 2003 (4) Crimes 497 (SC); MA Kundappan v E Krishanan Nayanar, AIR 2004 SC 2825 : 2004 Cr LJ 1770 : 2004 (4) SCC 231 : 2004 (2) Crimes 325 (Ker); Maly v State of Kerala, AIR 2004 SC 1890 : 2004 Cr LJ 1812 : 2004 (4) SCC 584 : 2004 (2) Crimes 341 (SC); Aathimula Gounder State of TN, 2007 Cr LJ 271 (273); State of AP v Shalini Steels Private Ltd, 2011 Cr LJ 67 ]. [s 193.9] Trial by Sessions Court (NDPS Act).— If an offence under the NDPS Act was committed to the Court of Session by the Magistrate, that order of committal may at best be an irregularity, which will not vitiate the trial or affect the jurisdiction of the Session Court exercising power of a Special Court under section 36-D of the Act [Soman Pillai v State, (1996) Cr LJ 1031 , 1034 (Ker)]. [s 193.10] Special Court.— A Special Court has to function only in accordance with the special Act under which it is credited [Gangula Ashok v State of AP, AIR 2000 SC 740 : 2000 Cr LJ 819 : (2000) 2 SCC 504 : 2000 (1) Crimes 196 ].

End of Document

[s 194] Additional and Assistant Sessions Judges to try cases made over to them.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER XIV CONDITIONS REQUISITE FOR INITIATION OF PROCEEDINGS

The Code of Criminal Procedure, 1973 CHAPTER XIV CONDITIONS REQUISITE FOR INITIATION OF PROCEEDINGS [s 194] Additional and Assistant Sessions Judges to try cases made over to them.— An Additional Sessions Judge or Assistant Sessions Judge shall try such cases as the Sessions Judge of the division may, by general or special order, make over to him for trial or as the High Court may, by special order, direct him to try. [s 194.1] Changes.— Section 194 corresponds to sub-section (2) of old section 193 redrafted so that distribution of cases is mainly attended by the Sessions Judge under the overall control of the High Court instead of the State Government in view of Supreme Court decision in Ranga Md, AIR 1967 SC 903 . see Rahul Sharma v State of Rajasthan, (1978) Cr LJ 1276 : 1978 Raj LW 160 : 1978 WLN (Raj) 160 (Raj). [s 194.2] Scope and application of section 194.— (See section 10). The section is not hit by Article 14, Constitution [Babu Ram v State, AIR 1958 All 838 : 1958 Cr LJ 1446 : 1958 All LJ 505 : 1958 All WR 616]. It confers power on the Sessions Judge to distribute sessions work. Sessions Judge can transfer a case to Asst. Sessions Judge any time before the actual trial commences [Tushar, 82 Cal WN 652]. As to commencement of trial, see section 228 and notes post. As to security cases, see section 122(5). As to High Court’s power, see section 9(5). Transfer of case by Additional Sessions Judge from the file of the Sessions Judge to his own file is illegal [Habib Rather v State, AIR 1959 J&K 11 : 1959 Cr LJ 186 ]. For hearing of appeal by the Additional Sessions Judge and Assistant Sessions Judges, see sections 381. See this section Kehar Singh v State (Delhi Administration), AIR 1988 SC 1883 : 1989 Cr LJ 1 : 1988 SCC (Cri) 711 (SC)].

While an appeal cannot be heard by an Additional Sessions Judge, Asstt. Sessions Judge or a CJM unless the same has been made over to him by the Sessions Judge or has been directed to be heard by him by the High Court, a sessions triable case can be tried by an Additional or Asstt Sessions Judge or being directly committed to any of them by a Magistrate. If a case is committed to an Additional or Asstt. Sessions Judge without any order having been passed by the Sessions Judge or the High Court, then such committal is an irregularity curable under section 468, Code of Criminal Procedure, 1973. [Bhuban Chandra Sharma v State of Meghalaya, 2007 Cr LJ 3315 (3323) (Gau)].

The word “case” in section 194 may cover a petition filed under section 409 before the Sessions Judge and

Page 2 of 2 [s 194] Additional and Assistant Sessions Judges to try cases made over to them.— consequently he can make over such petition to the Additional Sessions Judge for disposal. Section 194 is not restricted to case in which an offence is tried [Varjiwan P Seth v Ratanlal Jahotia, AIR 1964 AP 59 : 1964 (1) Cr LJ 176 : 1963 (1) Andh LT 368 : 1963 Mad LJ (Cri) 323 : 1963 (2) Andh WR 43].

Where an Addl. Sessions Judge was transferred to another Court in same sessions division at the same station after a case was part heard, the High Court was competent under section 194 to direct the Addl. Sessions Judge to complete the trial, and neither section 409 nor section 407 was attracted [Rahul Sharma v State of Rajasthan, 1978 Cr LJ 1276 : 1978 Raj LW 160 : 1978 WLN (Raj) 169 (Raj)]. [s 194.3] Transfer of criminal cases.— If by the contentions of the aggrieved party Court is satisfied, in the interest of justice under the provision of section 194, Code of Criminal Procedure, 1973 High Court can pass a order of transferring the case from one Court to another [Ranbir Yadav v State of Bihar, AIR 1995 SC 1219 : 1995 Cr LJ 2665 : (1995) 4 SCC 392 : 1995 (2) Crimes 161 (SC)].

End of Document

[s 195] Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER XIV CONDITIONS REQUISITE FOR INITIATION OF PROCEEDINGS

The Code of Criminal Procedure, 1973 CHAPTER XIV CONDITIONS REQUISITE FOR INITIATION OF PROCEEDINGS [s 195] Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence.— No Court shall take cognizance— (a) (i)

of any offence punishable under Sections172 to 188 (both inclusive) of the Indian Penal Code (45 of 1860), or

(ii) of any abetment of, or attempt to commit, such offence, or (iii) of any criminal conspiracy to commit such offence, except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate; (b) (i)

of any offence punishable under any of the following sections of the Indian Penal Code (45 of 1860), namely, Sections 193 to 196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and 228, when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court, or

(ii) of any offence described in Section 463, or punishable under Section 471, Section 475 or Section 476, of the said Code, when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court, or (iii) of any criminal conspiracy to commit, or attempt to commit, or the abetment of, any offence specified in sub-clause (i) or sub-clause (ii), 2[except

on the complaint in writing of that Court or by such officer of the Court as that Court may authorise in writing in this behalf, or of some other Court to which that Court is subordinate.] (2) Where a complaint has been made by a public servant under Clause (a) of sub-section (1) any authority to which he is administratively subordinate may order the withdrawal of the complaint and

Page 2 of 27 [s 195] Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evi.... send a copy of such order to the Court; and upon its receipt by the Court no further proceedings shall be taken on the complaint : Provided that no such withdrawal shall be ordered if the trial in the Court of first instance has been concluded. (3) In Clause (b) of sub-section (1), the term “Court” means a Civil, Revenue or Criminal Court, and includes a tribunal constituted by or under a Central, Provincial or State Act if declared by that Act to be a Court for the purposes of this section. (4) For the purposes of Clause (b) of sub-section (1), a Court shall be deemed to be subordinate to the Court to which appeals ordinarily lie from the appealable decrees or sentences of such former Court, or in the case of a Civil Court from whose decrees no appeal ordinarily lies, to the principal Court having ordinary original civil jurisdiction within whose local jurisdiction such Civil Court is situate : Provided that— (a) where appeals lie to more than one Court, the Appellate Court of inferior jurisdiction shall be the Court to which such Court shall be deemed to be subordinate; (b) where appeals lie to a Civil and also to a Revenue Court, such Court shall be deemed to be subordinate to the Civil or Revenue Court according to the nature of the case or proceeding in connection with which the offence is alleged to have been committed. [s 195.1] Changes.— Section 195 corresponds to old section 195 with the following changes :

(1) In sub-section (1)—firstly, old clause (a) has been numbered as sub-clause (i) of clause (a) and the word “administratively” has been added; secondly, old clauses (b) and (c) have been numbered as sub-clauses (i) and (ii) of clause (b) and in sub-clause (ii) the words “by a party to any proceeding in any Court” after “Committed” have been omitted, and thirdly, old sub-section (4) has been redrafted into sub-clauses (ii) and (iii) of clause (a) and sub-clause (iii) of clause (b). (2) Old sub-section (5) has been numbered as sub-section (2) and redrafted. The word “administratively” and the proviso have been added. (3) Old sub-section (2) has been numbered as sub-section (3) and the word “means” and certain other words have been substituted for “includes” and “but does not include a Registrar or Sub-Registrar under the Indian Registration Act, 1877” respectively. (4) Old sub-section (3) has been numbered as sub-section (4) and certain other words have been substituted for “this section”.

Material changes introduced are.—

(1) Nature of “subordinate” of a public servant for the purposes of this section to some other public servant or authority who has been empowered to lodge also a complaint and to withdraw a complaint made, has been made plea by inserting the word “administratively”. [Sub-sections (1)(a) and (2)]. (2) By deleting the words “by a party to any proceeding in any Court” in respect of offences of forgery the scope of the provision has been enlarged so as to include any person and thus to cover witnesses also

Page 3 of 27 [s 195] Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evi.... and a situation when the offence is alleged to have been committed by several persons of whom own is a party and also when the offence has been committed by a party prior to his becoming a party [subsection (b)(ii)]. (3) The power to withdraw complaint by the superior authority should not be exercised if the trial in the Court of first instance has concluded. [Proviso to sub-section (2)]. (4) The scope of “Court” has been restricted by giving an exhaustive definition to mean civil, criminal and revenue Court and including only one category of tribunal constituted by an Act and declared by that Act to be a Court for the purposes of this section. The specific exclusion of Registrar and SubRegistrar, as occurred in the old section has been omitted as they cannot be regarded as Civil Court for the purposes of section 195 [Sub-section (3)]. [s 195.1.1] Amendment by Criminal Law (Amendment) Act, 2005.— “In Section 195 of the Code of Criminal Procedure, 1973 (hereafter in this Chapter referred to as the Code of Criminal Procedure), in sub-section (1), for the words “except on the complaint in writing of that Court, or of some other Court to which that Court is subordinate”, the words “except on the complaint in writing of that Court or by such officer of the Court as that Court may authorise in writing in this behalf, or of some other Court to which that Court is subordinate” shall be substituted”.

This amendment in the section has come into force w.e.f. 16 April 2006 vide Notification No. S.O. 523(E), dt. 12 April 2006. [s 195.2] Scope and application of section 195.— Section 195(1)(b)(ii) of Code of Criminal Procedure, 1973 would be attracted only when the offences enumerated in the said provision have been committed with respect to a document after it has been produced or given in evidence in a proceeding in any Court ie, during the time when the document was in custodia legis [Iqbal Singh Marwah v Meenakshi Marwah, AIR 2005 SC 2119 : 2005 (4) SCC 370 ; KG Pethani v State, 2013 (12) Scale 1 ]. In Ram Dhan v State of UP, AIR 2012 SC 2513 : 2012 (5) SCC 536 : 2012 Cr LJ 2419 the Supreme Court considered this very aspect of the matter and relying upon the earlier judgment in Sachida Nand Singh v State of Bihar, 1998 (2) SCC 493 : 1998 SCC (Cri) 660 : AIR 1998 SC 1121 : 1998 Cr LJ 1565 came to the conclusion that if the fabrication of false evidence takes place or the document is tampered with before filing in the Court, the provisions of section 195, Code of Criminal Procedure, 1973 would not be attracted. It is only when the document is tampered with after filing in Court then the bar provided in section 195, Code of Criminal Procedure, 1973 would be attracted. A similar view has been reiterated on the issue by the Supreme Court in P Swaroopa Rani v M Hari Narayana, AIR 2008 SC 1884 : 2008 (3) Scale 501 : 2008 (5) SCC 765 ; Mahesh Chand Sharma v State of UP, AIR 2010 SC 812 : 2009 (15) SCC 519 : 2010 Cr LJ 890 ; C Muniappan v State of TN, AIR 2010 SC 3718 : 2010 (2) KLD 560 : 2010 (8) Scale 637 : 2010 (9) SCC 567 ; Institute of Chartered Accountants of India v Vimal Kumar Surana, 2011 (1) SCC 534 ; CP Subhash v Inspector of Police, Chennai, JT 2013 (2) SC 270 .

Section is not attracted unless document which is in custody of Court is forged [Jhagarn v State of UP, 2008 Cr LJ (NOC) 1119 (All) : 2008 (61) All Cri C 51]. Ordinarily any one may prefer a complaint [see 22(d)], but sections 195–199 are exceptions to this general rule [Gane, 13 B 600; Balmukund, AIR 1928 L 510]. Owing to the character of certain offences as affecting the lawful authority of public servants or the public justice, the right to prosecute under the relevant sections has been restricted and Courts are prohibited from taking cognizance of the offences mentioned therein unless and until the public servants or the Courts directly concerned or their superior officers or superior Courts themselves make the complaint. The principle underlying section 195 is that in regard to offences of contempt of lawful authority of public servants or to offences against public justice (e.g. giving false evidence or producing forged document etc.), private prosecutions are absolutely barred and only the public servants or the Courts concerned can make complaints. The opening words “No Court”, means Court governed by the Code “Court” in clause (b) have a different and wider meaning.

Section 195 bars the cognizance by any Court of the offences mentioned except upon a proper “complaint”. Section 195 is in fact a limitation on the unfettered powers of a Magistrate to take cognizance under section 190

Page 4 of 27 [s 195] Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evi.... of the offences mentioned in the section [Govind Mehta v State of Bihar, AIR 1971 SC 1708 : 1971 Cr LJ 1266 : (1971) 3 SCC 329 (SC); ML Sethi v RP Kapur, AIR 1967 SC 528 : 1967 Cr LJ 528 (SC); Daulat Ram v State of Punjab, AIR 1962 SC 1206 : 1962 (2) Cr LJ 286 (SC); State of UP v Mata Bhikh, (1994) 4 SCC 95 ]. Consequently, at the stage when the Magistrate is taking cognizance he must examine the facts of the complaint before him and determine whether his power to take cognizance has or has not been taken away [Govind, supra; ML Sethi, supra]. The provision of section 195(1) is mandatory and in the absence of a complaint by the public servant the trial is void ab initio and the conviction of accused under section 177, Indian Penal Code, 1860 is not sustainable [Lakha Sherpa v State of Sikkim, 2004 Cr LJ 3488 (Sikk)].

Where the forgery is alleged to have been committed with respect to the Will prior to the filing of the suit in Civil Court, complaint filed at the instance of the petitioner is not liable to be dismissed on the ground that complaint ought to have been filed at the instance of Civil Court [Munshi Ramv Shyam Lal, 2008 Cr LJ 4605 (4606) (HP)].

The offences under sections 186, Indian Penal Code, 1860 and 332, Indian Penal Code, 1860 are distinct offences. Where accused is charge-sheeted under section 332 and not under section 186, Indian Penal Code, 1860 the bar under section 195(1)(a) would not apply [Ramkubhai Balkubhai Dhakhda v State of Gujarat, 2006 Cr LJ (NOC) 393 : (2006) 1 Guj LR 613 (Guj) : 2006 (2) Guj LJ 505].

Section 195(1)(a) does not contemplate any delegation [PD Lakhani v State of Punjab, 2008 (2) SCC (Cr) 553 : (2008) 5 SCC 150 : 2008 (6) JT 157 ].

Where there are allegations of fabrication of records before the Supreme Court the Supreme Court itself cannot assume jurisdiction and convict the petitioner without trial, without following statutory procedure provided under sections 195 and 340 Code of Criminal Procedure, 1973.—[MS Ahlawat v State of Haryana, AIR 2000 SC 168 : 2000 Cr LJ 388 , 391, 392 : (2000) 1 SCC 278 pure 13–15 : 1999 (4) Crimes 297 (SC)].

Section 195 is closely related to section 340. Even if any forged document had been produced in a civil case as alleged, an enquiry will be held in accordance with section 340. Any Court as described under section 195(3) would be empowered to hold the enquiry if an application is filed under section 191(1)(b)(ii) [Hridayangshu Bhattacharjee v State of Jharkhand, 2003 Cr LJ 624 : 2003 AIR Jhar HCR 100 : 2002 (3) East Cr C 13 (Jhar)].

Where the accused was charged for offence punishable under section 332, Indian Penal Code, 1860 and he was not charged for offence under section 186, Indian Penal Code, 1860, there is no question of any bar under section 195(1)(a)(i) Code of Criminal Procedure, 1973. Ramkubhai Valkubhai Dakhda v State of Gujarat, 2006 Cr LJ (NOC) 393 (Guj) : (2006) 1 Guj LR 613.

In a complaint of an offence of perjury, it was alleged that with intention to cause loss to the complainant, the supply of machinery was delayed by using forged document. Subsequently, the accused initiated proceedings for certain reliefs in which the said document was filed. When the matter was subjudice before the Civil Court, no allegation regarding this document were raised. The Apex Court held that the bar under section 195 would not apply. [George Bhaktan v Rabindra Lele, AIR 2015 SC (Supp) 622 : 2015 Cr LJ 4734 ]. [s 195.3] Compensation officer.— The compensation officer appointed under section 19 of the Bihar Land Reforms Act, 1952 is not a “Court”. Neither the Act nor any there law declares him to be a Court.—[Keshab Narayan Banerjee v State of Bihar, AIR 2000 SC 485 : (2000) Cr LJ 595 , 596, 598 : (2000) 1 SCC 607 : 2000 (1) Crimes 85 (SC)]. [s 195.4] Forgery.— Where forgery is suspected to have been committed in course of proceeding pending before the Magistrate, the proper procedure is to make a preliminary enquiry contemplated in section 340 Code of Criminal Procedure, 1973 instead of directing police to investigate. He should not refer the matter to the probe.—[VV Ramakrishan v State of Kerala, (1998) Cr LJ 874 : 1998 (2) Crimes 153 : 1998 (1) Ker LT 68 : 1998 (1) Ker LJ 11 (Ker)].

Page 5 of 27 [s 195] Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evi....

Section 195(1)(b)(ii) would be attracted in respect of a document after it was produced or given in evidence in proceedings before the Court. Order making reference Under section 156(3) for investigations does not suffer from illegality [Jitendra Chandrakant Mehta v Shamrok Imbex Pvt Ltd, 2007 (1) Crimes 150 (SN) (Bom); M Ravi v Elumalai Chettiar, (2007) 1 Mad LJ (Cr) 207 (Mad)]. [s 195.5] Superior Court.— Where the inquiry was conducted by the Superior Court the order taking cognizance of offence under sections 193, 194, 211 and 218 Indian Penal Code, 1860 is sustainable.—[Arvindervir Singh v State of Punjab, AIR 1998 SC 2950 : (1998) 6 SCC 352 : 1998 Cr LJ 4014 : 1998 SCC (Cri) 1448 ].

It can be seen from the language of section 195(4), Code of Criminal Procedure, 1973 that it creates a legal fiction whereby it is declared that the original Court is subordinate to that Court to which appeals ordinarily lie from the judgments or orders of the original Court. such a fiction must be understood in the context of Article 227 [Perumal v Janaki, 2014 Cr LJ 1454 ].

Imposition of fine by Court whose order for appearance violated without following procedure would be illegal. [M Sudhakara Rao v State of AP, 2001 Cr LJ 448 : 2000 (4) Crimes 427 : 2000 (2) Andh LT (Cri) 142 (AP)]. [s 195.6] Complaints by Courts and public servants.— Section 195 makes a distinction between complaints by public servants [clause (a)] and by Courts [causes (b)(i) and (ii)] and section 340 prescribes the procedure for making complaints by Courts. Although no private person can now prosecute or apply for sanction, he can in a proper case move the Court with a request that a complaint may be filed for the vindication of justice. (see the opening words of section 340). If the person aggrieved dies his legal representatives may move the Court [Ghulam, AIR 1923 M 206].

The State Commission is empowered to order investigation by concerned police into the case of production of false and fabricated document before the State Commission. [Oriental Insurance Co Ltd, Srinagar v Safa-ulGanai, AIR 2015 J&K 77 : 2015 (4) RCR (Criminal) 378]. [s 195.7] Object.— The purpose and object of the bar against cognizance of private complaints in regard to the offences mentioned in section 195(1)(b) is both to save the accused from vexatious or baseless prosecutions spited by feelings of vindictiveness on the part of the private complainants and also to avoid confusion likely to arise on account of conflicts between findings of Courts in which forged documents are produced or false evidence is led and the conclusions of the Criminal Courts dealing with the private complaint. It is for this reason that the legislature has entreated the Court, whose proceedings had been the target of the offence of perjury to consider the expediency in the larger public interest, of a criminal trial of the guilty party [Laljibhai Somabhai Patel v State of Gujarat, AIR 1971 SC 1935 : 1971 Cr LJ 1437 : (1971) 2 SCC 373 (SC)].

Section 195 is closely related to section 340. Section 195 described the offences in respect of which a complaint is necessary and section 340 prescribes the procedure for making a complaint by Court [Dwarka, AIR 1926 A 21, 26 : 26 Cr LJ 1506; see Mathur Prasad v Pitambar Singh, AIR 1945 Pat 362 : (1946) 47 Cr LJ 183 : ILR 24 Pat 174]. [s 195.8] Mandatory character.— Section 195 is imperative. Cognizance of offences mentioned in it without a proper complaint is an illegality not curable by section 465 [Tularam, AIR 1927 N 184; Ram Samujh, AIR 1926 O 485; Janki, AIR 1926 A 700; Lalchand, AIR 1930 P 346]. Where the Court is confronted with the complaint of a private individual, it cannot even examine the complainant under section 200 and then note that it is only taking cognizance of an offence not referred to in section 195, because the examination takes place after cognizance of an offence [Sadhuram, 38 Cr LJ 742]. See also below “Section mandatory.”

Page 6 of 27 [s 195] Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evi.... The provisions of section 195, Code of Criminal Procedure, 1973 are mandatory. Non-compliance of it would vitiate the prosecution and all other consequential orders. The Court cannot assume the cognizance of the case without such complaint. In the absence of such a complaint, the trial and conviction will be void ab initio being without jurisdiction [[C Muniappan v State of TN, AIR 2010 SC 3718 : (2010) 9 SCC 567 ].

In order to prosecute an accused for an offence punishable under section 182 of the Indian Penal Code, 1860, it is mandatory to follow the procedure prescribed under section 195 of the Code else such action is rendered void ab initio. [Saloni Arora v State of NCT of Delhi, AIR 2017 SC 391 : 2017 (2) Mad LJ (Cr) 217]. [s 195.9] Objection when to be raised.— An objection regarding a complaint goes to the root of a case, it should be raised before the lower Court at the earliest opportunity and decided as a preliminary objection to prevent waste of time [Parandhamayya, AIR 1939 M 579; Re PM Kamath (Dr), AIR 1954 Mad 561 : 1954 Cr LJ 799 : 1953 Mad WN 759; Re TC Nichodemus, AIR 1955 Mad 561 : 1955 Cr LJ 1360 : 61 Mad LW 1181 : 1954 (2) Mad LJ 619].

In proceedings for a complaint under section 195 costs may now be awarded (see section 342). [s 195.10] Stay of proceedings.— Not infrequently does the question arise whether action by a Criminal Court under sections 195 and 340 should be stayed on account of pending civil proceedings between the parties relating to substantially the same facts. There can be no hard and fast rule and each case must be decided on its own merits. Distinction between public and private prosecution is not the only test, nor is priority in time necessarily conclusive [Dias, AIR 1933 B 485; Ram Ch, AIR 1933 B 307; see Gopal, 33 Cal WN 969]. As to stay of proceedings, see notes to sections 309, 401 and 482.

An application was made for succession certificate. Forged documents were filed to show that A had consented to the grant, when in fact, A had never consented. On a prayer by A under section 340, Code of Criminal Procedure, 1973, a summons was issued to the petitioners. Complainant later withdrew the proceedings and filed a separate complaint, alleging offences under section 120 B, Indian Penal Code, 1860. While withdrawing the prayer under section 340, no leave of the Court to file a complaint was obtained. It was held that it was illegal for the Magistrate to take cognizance. Civil Court was the proper forum, Complaint, per se was not maintainable [Sasanka Sekhar Mondal v State, 1988 Cr LJ NOC 52 : 1988 Cal CrLR 145 (Cal)].

Power of police to investigate cognizable offences under sections 471, 475 or 476 is not barred under section 195(1)(b)(ii) unless the offence is committed in respect of a document in custody of the Court or in the course of the proceedings [Karnail Singh v State of Punjab, 1983 Cr LJ 713 : (1983) 85 Punj LR 293 : 1983 (1) Chand LR (Cri) 199 (P&H); see also M Narayan v State of Karnataka, 2004 Cr LJ 822 (SC)]. [s 195.11] Sections 195 and 340.— Sections 195 and 340 should be read together. Section 340 lays down the procedure as to how the bar imposed by section 195(1)(b) is to be removed. It does not apply to the offences referred to in section 195(1)(a) in respect of which complaints are to be made by the public servants concerned [Mathur Prasad v Pitambar Singh, AIR 1945 Pat 362 : (1946) 47 Cr LJ 183 : ILR 24 Pat 174].

A Court is competent to make a complaint under section 340 for offences mentioned in section 195 either suo motu or on an application made to it. But, such directions should be issued only on due circumspection of the record before it and the material available. This power has to be exercised with great care and caution. The Court must consider all the circumstances, to find out whether they do warrant a finding that it is expedient in the interests of justice that the matter should be inquired into by the Magistrate in a regular proceeding. It is only upon such a finding that the complaint is to be made. The Court must be prima facie satisfied that the offence, as alleged, has been committed by an individual against whom the proceedings in a Criminal Court are being taken. Thus, in directing a prosecution, the Court must consider (i) not only whether there is a prima facie

Page 7 of 27 [s 195] Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evi.... case, but also (ii) whether it is in or against public interest to allow a criminal proceeding to be instituted [RV Bhasin v State, (1987) Cr LJ 1799 : 1987 Mah LJ 478 : 1987 (2) Bom CR 342 (Bom)].

A complaint can be lodged by any one who has become aware of a crime having been committed. In respect of offences adverted to in section 195 there is a restriction that the same cannot be entertained unless a complaint is made by a Court. Section 340 may be involved to get over the bar imposed under section 195. Any citizen of this country can approach under section 340 and it cannot be said that the complainant has no locus standi [N Natarajan v BK Subba Rao, AIR 2003 SC 541 : (2003) 2 SCC 76 : 2003 (1) Crimes 235 (SC)].

Different statements at different stages of the proceedings made by the Public Prosecutor would not constitute any offence so as to attract section 340, Code of Criminal Procedure, 1973. In consistent stands pleas taken by the counsel at different stages of the proceedings in not an offence [N Natarajan v BK Subba Rao, AIR 2003 SC 541 : (2003) 2 SCC 76 : 2003 (1) Crimes 235 (SC)]

Sections 195 and 340 do not control or circumscribe the power of the police to investigate, under the Criminal Procedure Code. Once investigation is completed then the embargo in section 195 would come into play and the Court would not be competent to take cognizance. However, that Court could then file a complaint for the offence on the basis of the FIR and the material collected during investigation provided the procedure laid down in Section 340, Criminal Procedure Code is followed. Thus no right of the Respondents, much less the right to file an appeal under section 341, is affected [M Narayandas v State of Karnataka, 2004 Cr LJ 822 (SC)].

The Subordinate Judge is not a Court subordinate to District Court for the purposes of sections 195 and 340, Code of Criminal Procedure, 1973 and the Land Acquisition Act, and the District Judge is not competent to file a complaint in regard to such offences. The word “ordinarily” used in section 195(4) Code of Criminal Procedure, 1973 that a Court shall be deemed to be subordinate to the Court to which appeals ordinarily lie must be understood in the context in which it has been used [State of AP v V Suma Rao, AIR 2007 SC 137 : 2007 Cr LJ 289 : (2007) 1 Mad LJ (Cr) 591 (SC)]. [s 195.12] “Complaint”.— Complaint under section 195 may be—(a) by public servants [sub-section (1)(a); as to public servant. See section 21, Indian Penal Code, 1860], or (b) by Court [sub- section (1)(b)]. In either case, there must be a regular formal complaint [see section 2(d)] in writing. The procedure for making complaint by Court is prescribed in section 341. No fixed procedure is laid down for complaint by public servant. Section 195(1) (a) which relates to contempt of lawful authority of public servants applies to servants both ministerial and judicial. Those referred to in clause (b) are judicial officers who are “Courts”. There is some distinction between complaint by Court under clause (b)(i) and under clause (b)(ii): (1) Complaint of offence mentioned in clause(b)(i) is in respect of offences alleged to have been (i) committed in, or (ii) in relation to any proceeding in Court, (2) While in regard to the offences in clause (b)(ii) they have to be connected not with the proceeding but with a document produced or given in evidence in the proceeding and those offences have no longer to be restricted to a party to Court proceedings. Hence, they cover offences alleged to have been committed by any person in respect of the document concerned, viz, witness, agent, writer, attestor, pleader, guardian of a minor plaintiff, abettor, etc. Therefore, when an offence is committed by more than one person some of whom are parties to the proceedings while others are not; the controversy whether complaint by Court is necessary for prosecution of those who are not parties also, does no longer arise. When the complaint is drawn up it is enough to forward it to the Court competent to take cognizance and no examination of complainant is necessary [section 200(a)].

Complaint filed by private party alleging production of forged document before Court is maintainable as bar under section 195 of Code of Criminal Procedure, 1973 not attracted. [Dilip Kumar Jain v State of Maharashtra, 2001 Cr LJ 7 : 2000 (3) Bom LR 482 : 2001 (5) Bom CR 223 (Bom)].

Complaint in writing.—For prosecution of offence under section 182, Indian Penal Code, 1860 for giving false evidence in Court, complaint in writing by the public servant is mandatory. Cognizance of the offence taken

Page 8 of 27 [s 195] Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evi.... without complaint in writing by the public servant is liable to be quashed [Lekhraj Hira Lal v State of UP, 2008 Cr LJ (NOC) 1118 (All) : 2008 (61) All Cri C 831]. The prosecution of the accused on private complaint is contrary to the provisions of section 195(1)(b)(ii) and is liable to be quashed [Budhalal Chhotalal Rana v State of Gujarat, 2009 Cr LJ 163 (165) (Guj)]. [s 195.13] Section mandatory.— The filing of a complaint in respect of the offences detailed in section 195 for cognizance is mandatory [Jagannathchar, AIR 1942 M 326] and conviction will be set aside if no proper complaint has been filed [Lakhan, AIR 1936 A 788; Arumuga, AIR 1928 M 59], or filed not by the prescribed persons or authorities [Kailas, 30 C 285; Santilal Mehta v Emperor, AIR 1948 Cal 103 : 91947) 48 Cr LJ 665 : 231 IC 54; Ram Singh, AIR 1935 P 214; Sudarsan Barhombhai v Emperor, AIR 1947 Pat 64 : (1947) 48 Cr LJ 264 ; Re Chinnayya Goundan, AIR 1948 Mad 474 : (1948) 49 Cr LJ 385 : 1947 (2) Mad LJ 359 : 60 Mad LW 693; Jagdamba, AIR 1933 A 626]. There must be regular complaint [Banshilal Dukhiram v State, AIR 1954 Nag 30 : 1954 Cr LJ 15 : 1953 Nag LJ 470 : ILR (1953) Nag 847 ; Makaradhwaj Sahu v State, AIR 1954 Ori 175 : 1954 Cr LJ 950 : 20 Cut LT 99; Krishna Tukaram Jadhav v The Secretary to the Chief Minister, AIR 1955 Bom 315 : 1955 Cr LJ 1156 : 57 Bom LR 151 : ILR (1955) Bom 402 ; (Sindhi) Nathuram Atmaram v State, AIR 1958 Raj 89 : 1958 Cr LJ 567 : 1958 Raj LW 245 ; Kalicharan, AIR 1934 O 186; Mosafir, 36 Cr LJ 904; Rajani, 28 Cr LJ 840; Syed Habib, 39 Cr LJ 88; Abdul Rahman, AIR 1932 A 190; Babu, AIR 1940 O 241]. Cognizance cannot be taken of an offence under section 188, Indian Penal Code, 1860 of disobedience to order e.g., under sections 144, 145 etc) without a regular complaint by the public officer concerned [Sumer Goshain v State, AIR 1952 All 560 : 1952 Cr LJ 1034 : 1951 All WR 518; Santilal Mehta v Emperor, AIR 1948 Cal 103 : (1947) 48 Cr LJ 665 : 231 IC 54] even if it be disobedience to a Magistrate’s own order [Lokendra, 37 Cr LJ 936; Veerappa, 40 Cr LJ 752; Ramswarup Agarwalla v State, AIR 1952 Ass 68 : 1952 Cr LJ 641 : ILR (1951) 3 Ass 164 ; see State v Hem Narain Singh, AIR 1953 All 200 : 1953 Cr LJ 555 : 1952 All LJ 670 : 1952 All WR 649]. See also above “Mandatory character” : Process-server’s report of occurrence or the Civil Court’s report to the police does not constitute a complaint for offence under section 186, Indian Penal Code, 1860 [Darkhan, 29 Cr LJ 645; see however, Barkat, supra]. In obstruction to attachment no complaint is necessary for offence under section 379 or section 424, Indian Penal Code, 1860 [Rangaswami, 1939 MWN 886 ; see Raghubar, 36 Cr LJ 594].

A Magistrate dismissing a complaint as false cannot proceed against the complainant under section 211, Indian Penal Code, 1860 without filing a complaint under section 195 [Ambika, AIR 1926 P 368]. The effect of section 10, Criminal Law Amendment Act, 1932 making offence under section 188, Indian Penal Code, 1860 cognizable does not render a complaint unnecessary [Bansidhar Patnaik v Province of Orissa, AIR 1951 Ori 84 : 17 Cut LT 80 : ILR (1950) Cut 545 ; State of Orissa v Oria Sama Majhi, AIR 1951 Ori 138 : ILR (1950) Cut 476 ].

When a complaint is forwarded under section 340 although it is inapplicable, it ceases to be a complaint; but Court may take cognizance on it under section 190(c) [Kumar, AIR 1938 P 83]. It is wrong to order prosecution of two persons in the alternative [Narinjan, 31 Cr LJ 1065].

A complaint under section 195 of the Code must be a regular formal complaint in writing the procedure for which has been given in section 340 of the Code [Ritlal Khatway v State of Bihar, 2007 Cr LJ 593 (Patna)]. [s 195.14] Complaint without mention of all sections or all offenders.— Where a complaint is filed in respect of an offence under one section, the Court can take cognizance and convict the accused of any other offences disclosed by the facts mentioned in the complaint. A fresh complaint is not necessary [Jamuna, AIR 1934 P 536; Mathura, AIR 1934 P 467; Sakaldeo, 38 Cr LJ 210; Bhikari, AIR 1935 P 561; Jugeshwar, AIR 1936 P 346; Gomaji, AIR 1944 N 192; Hampana, AIR 1936 M 280; Balusamy, AIR 1929 M 188; Balmukand, AIR 1928 L 510; Abul Rahman, AIR 1926 R 53]. What is material is that there should be a complaint setting out all the facts, which constitute the offence. A complaint under the Code does not contemplate reference to specific sections [Ram Brichha Misir v Emperor, AIR 1948 All 121 : (1948) 49 Cr LJ 25 (2) : ILR (1947) All 796 ; Linga Baliya, AIR 1942 M 513—Contra: Tashkir, AIR 1945 A 397; Karan Singh v State, AIR 1956 MB 193 : 1956 Cr LJ 1072 : 1956 MBLJ 665; see Ram Samujh, 27 Cr LJ 969; Kaura Kam, AIR 1937 Pesh 67 ]. Procedure where facts constituting the offence for which complaint is required disclose other offences to which section 340 does not apply [Reddi, AIR 1941 M 576].

Page 9 of 27 [s 195] Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evi.... If a complaint is filed against a person and it transpires afterwards that other persons are also concerned in the offence, the Court has jurisdiction to proceed against them even though the complaining Court may have refused to make a complaint against them, or a complaint against some is found to be invalid, for cognizance is taken of an offence and not offenders [Nitai, 40 Cal WN 573; Juggeshwar, AIR 936 P 346; Fateh Md, AIR 1940 SC 97 ; see also ante, 190]. [s 195.15] Several offences some of which require complaint, others do not [Evasion of Section 195].— Where upon the facts the commission of several offences is disclosed some of which require a complaint under section 195 and others do not, is it open to prosecute in respect of the latter offences only though there is no “complaint”? Decisions do not appear to be in accord. It has been answered affirmatively in several cases [Dhirendra Nath Bera v Nurul Huda, AIR 1951 Cal 133 FB : 1951 Cr LJ 1226 : 56 Cal WN 1 FB (overruling all earlier Calcutta cases to the contrary) affirmed in Basir-ul-Huq v State of WB, AIR 1953 SC 293 : 1953 Cr LJ 1232 : 1953 SCR 836 ; Guru Pd, 24 Cal WN 674; Pramatha Nath v State, AIR 1951 Cal 581 : 1951 Cr LJ 1480 ; Sarbeswar, 39 Cr LJ 33; Sheo Ahir, A 1938 P 548; Dargoa, AIR 1925 P 717; Md Isa, AIR 1940 A 246; Krishna, 31 M 43; Charan, AIR 1942 L 76; Re Vishwanath, AIR 1951 Bom 289 : 1951 Cr LJ 1269 : 53 Bom LR 55 : ILR (1951) Bom 422 ; Raghubar, 36 Cr LJ 594; U Anug, AIR 1938 R 232 FB; Parasram Kundanmal Vaswani v Pupchand Tarasing, (1947) 48 Cr LJ 470 : 229 IC 617].

In another group of cases, it has been held that parties should not be allowed to evade the provisions of section 195 by bringing a charge under another section of the penal law of clearly of offence under section 193, Indian Penal Code, 1860 or any other section mentioned in section 195 has been committed [Perianna, AIR 1929 M 21; Ravanappa, AIR 1932 M 253; Appadurai, AIR 1936 M 89]. These and similar cases [e.g., Antarvedi, AIR 1946 M 489; Re Chinnaya Goundan, AIR 1948 Mad 474 : (1948) 49 Cr LJ 737 : 1948 (1) Mad LJ 448 : 61 Mad LW 467; Srinivasa, AIR 1945 M 9; Subramanya, AIR 1933 M 18; Somayya, 1934 MWN 1944 ] were approved by a Full Bench in Madras which however made an exception in the case of offences (e.g. under sections 193, 211, Indian Penal Code, 1860) which also involve defamation (by uttering words during deposition or by laying a false charge) holding that it is open to prosecute for defamation without a complaint under section 193 or section 211, Indian Penal Code, 1860, whether or not the Court has adjudicated upon the truth or falsely of the statement made. The principle is that the facts should be considered as a whole without splitting them up and when they disclose a specific or a graver offence requiring a complaint, section 195 cannot be evaded by electing to prosecute for a general or lesser offence for which no complaint is necessary [Narayana Ayyar v G Veerappa Pillai, AIR 1951 Mad 34 , 40 FB : 1951 Cr LJ 1270 : 1950 (2) Mad LJ 686 : 64 Mad LW 1040 overruling all earlier contrary cases; see also Antravedi, supra; Dholliah, AIR 1931 M 702; Nallappa, AIR 1942 M 19; Srinivasa, AIR 1945 M 9; Bajaji Appaji Kote v Emperor, AIR 1946 Bom 7 : (1946) 47 Cr LJ 321 : 47 Bom LR 664 : ILR (1945) Bom 1056 ; Nana Khanderao, 29 Bom LR 1476; Prag Dutt, AIR 1928 A 756; Sri Narayan, AIR 1925 A 129; Ram Harsh Tewari v Rex, AIR 1950 All 465 : 1950 Cr LJ 1235 : 1950 All LJ 346 : 1950 All WR 451; Sadhuram, AIR 1937 SC 81 ; Gobindram, AIR 1942 SC 62 ; Tarachand, AIR 1944 SC 130 ] and what is applicable to a private party is equally applicable to a prosecution by the police [Narayna, supra]. So where the facts disclose one offence under section 193, Indian Penal Code, 1860 and the other under sections 467 and 471, Indian Penal Code, 1860 (for which complaint by Court is not necessary) the party cannot be allowed to evade the provision as to complaint [Re Narasimhamurthy, AIR 1955 Mad 237 : 1955 Cr LJ 716 : 1954 (1) Mad LJ 650 : 1954 Mad WN 231]. [s 195.16] Several offences.— The Supreme Court has held that in cases where in the course of the same transaction two offences are committed for one of which no complaint by Court is necessary and for the other complaint is necessary, it is not possible to split up so as not to bar prosecution for offences not mentioned in section 195(1)(b) [State of Karnataka v Hamareddy, AIR 1981 SC 1417 : 1981 Cr LJ 1019 : (1981) 2 SCC 185 (SC); (Narasimhamurthy, supra approved); Basappa Basavantanpa Sureban v Ningangouda Dyavanagouda Patil, 1978 Cr LJ 460 : 1977 (2) Kant LJ 370 : 1978 Mad LJ (Cri) 182 (Kant)]. The Supreme Court agreeing with the Calcutta and Madras Full Bench cases, supra, has also held that section 195 does bar the trial of an accused for a distinct offence disclosed by the same facts (e.g. a charge of defamation the ingredients of which are not the same as the ingredient of an offence under section 182, Indian Penal Code, 1860); but that section cannot be evaded by resorting to devices or camouflages. The test whether there is evasion or not is whether the facts disclose primarily and essentially an offence for which a complaint of the Court or of the public servant is required. In other words section 195 cannot be evaded by the device of charging a person with an offence to which that section does not apply and then convicting him of an offence to which it does, upon the ground that the latter is

Page 10 of 27 [s 195] Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evi.... a minor offence of the same character, or by describing the offence as being punishable under some other section of the Penal Code though in truth it falls within the category of sections mentioned in section 195 [Basirul-huq v State of WB, AIR 1953 SC 293 : 1953 Cr LJ 1232 : 1953 SCR 836 (SC) affirming Dhirendra Nath Bera v Nurul Huda, AIR 1951 Cal 133 FB : 1951 Cr LJ 1226 : 56 Cal WN 1]. Prosecution under sections 353 and 186, Indian Penal Code, 1860 on same facts without a sanction under section 195 is not invalid though that under section 186 is barred [Durgacharan Naik v State of Orissa, AIR 1966 SC 1775 : 1966 Cr LJ 1491 (SC)]. See also Vivekanand Nand Kishore v State, AIR 1969 All 189 : 1969 Cr LJ 460 where applying this test it has been held that mere lacking of other offences, namely offences under sections 406, 467 and 420, Indian Penal Code, 1860 on offence under section 471 will not take the case out of the ambit of section 195(1)(c) [now section 195 (1)(b)(ii)] when none of the other offences can in truth and substance be said to be of distinct nature. The test above was also laid down in some earlier cases [see Tika Ram v King- Emperor, AIR 1945 Nag 210 : (1946) 47 Cr LJ 175 : 1945 Nag LJ 239 : ILR (1945) Nag 685 ; Sadhuram, 38 Cr LJ 742; Parasram Kundanmal Vaswarni v Rupchand Trarasing, (1947) 48 Cr LJ 470 : 229 IC 617 (Sind); Palanisami, A 1942 M 675, see also Sri Narain, 47 A 114; Babulal, 37 Cr LJ 587]. [s 195.17] Proceeding for some offences.— Complaint can proceed against the accused (without obtaining Court sanction) for those offences for which such sanction is not required, even if sanction may be required for certain other offences disclosed by the facts [HN Nanjegowda v State of Karnataka, 1988 Cr LJ 807 : 1987 (1) Kant LJ 344 : 1988 (1) All CrLR 69 (Kant)].

If the offences not covered by section 195 are separate and distinct from those so covered the procedure can continue Court sanction for the former offences [State of UP v Suresh Chandra Srivastava, AIR 1984 SC 1108 : 1984 Cr LJ 926 : (1984) 3 SCC 92 (SC)] If they are not separable, proceedings cannot continue for either category of offences [State of Karnataka v Hemareddy, AIR 1981 SC 1417 : 1981 Cr LJ 1019 : (1981) 2 SCC 185 (SC)].

Charge-sheet was filed by Police against Advocate for attesting signature of impersonator and identifying him as real person in bail bonds and affidavit and getting illegal release of the accused on the basis of forged and fabricated documents. It was held that order of cognizance (without Court complaint) was unsustainable for offences under section 466 and 471 of Penal Code without written complaint from Court. Since above offences could not be split up from offence under section 419, cognizance of offence under section 419 was also unsustainable [Manorajan Khatua v State of Orissa, 1990 Cr LJ 1583 : 1989 OCR 441 : (1989) (1) OLR 419 (KP Mohaptra J)].

In regard to taking cognizance, section 195 must be complied with.—[State of Punjab v Raj Singh, AIR 1998 SC 768 : (1998) Cr LJ 1104 : (1998) 2 SCC 391 : 1998 (1) Crimes 122 (SC)].

Where an accused commits some offences which are separate and distinct from those mentioned in section 195. Section 195 will affect only the offences mentioned therein, unless such offences form an integral part, so as to amount to offences committed as part of the same transaction. Accused persons removed used Court-fee stamps and reused them in other cases. They were charged under sections 262, 263, 567, 471, 410 and 120B, Indian Penal Code, 1860. But the facts narrated in the Registrar’s complaint revealed no offences under sections 467, 471, 120B, Indian Penal Code, 1860. The High Court, while quashing the proceedings for those offences, did not quash the others. Order was held legal [State of UP v Suresh Chandra Srivastava, AIR 1984 SC 1108 : 1984 Cr LJ 926 : (1984) 3 SCC 92 (SC)].

Where public servants are obstructed in execution of warrant of arrest and assaulted them constituting offences under sections 323, 324 and 353, Indian Penal Code, 1860 which are so connected with the primary offence of section 186, Indian Penal Code, 1860 cognizance on the basis of police report only under sections 323, 324 and 353 will amount to circumventing provisions of sections 195 [Janki Pd Tibrewal v State of Bihar, 1975 Cr LJ 575 (Pat)]. Where an employee of a village panchayat was obstructed in discharge of his duties of collection of levy, wrongfully confined and assaulted and a charge-sheet was filed under sections 342, 353, 323 and 504, Indian Penal Code, 1860—Held though offence under section 186, Indian Penal Code, 1860 was made out in the course of committing that offence an offence under section 353 being also committed a complaint under

Page 11 of 27 [s 195] Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evi.... section 195 is not required for taking cognizance of an offence under section 353, Indian Penal Code, 1860 [Shankarappa Sangappa Walikar v Allisab, (1976) 2 Kant LJ 348 : 1977 Cr LJ (NOC) 218 : 1976 Mad LJ (Cri) 626; (Janki Pd, supra as distinguished and Basir-ul-Huq v State of WB, AIR 1953 SC 293 : 1953 Cr LJ 1232 (SC) and Durgacharan Naik v State of Orissa, AIR 1966 SC 1775 : 1966 Cr LJ 1491 (SC) relied on)].

After purchase of certain Bhumidari lands by K, H in conspiracy with two lekhapals R, S got certain forged entries to be made in khasra and applied for correction of jamabandi. H also in conspiracy with M, ahlmad of the Court of tahsildar got false entry to be made so that his application filed on a later date may be taken to have been filed earlier. K filed threeseparate complaints under section 218, Indian Penal Code, 1860 against H and R, H and S and H and M respectively. Alleged offence committed by M being clearly in or in relation to a proceeding in a Court falls under section 193 Indian Penal Code, 1860 and cognizance can be taken only on complaint in writing of the Court concerned in view of bar under section 195 (1)(b)(i) but the private complaints against H and R and H and S are competent as section 218 is not mentioned in section 195 [Kamala Pd Singh v Hari Nath Singh, AIR 1968 SC 19 : 1968 Cr LJ 86 ].

On a FIR lodged by an informant, after investigation by the police, case of the informant was found to be false and the police submitted a charge-sheet against the informant under sections 408, 467, 474, 193, 385, 211 and 182, Indian Penal Code, 1860. Informant filed a complaint before the Magistrate against the same persons making the same allegations as in the FIR.—Held, prosecution for offences under sections 182, 211 and 193 could not continue for non-compliance of section 195(1)(b), though there could be no objection to the continuance of proceedings relating to the non-cognizable offences under other sections. The ratio for decision is that though the Magistrate can take cognizance of an offence under section 182 on complaint in writing by a police officer by virtue of section 195(1)(a), but it would lead virtually to the circumvention of the provisions of section 195(1)(b) if the proceedings under section 182 can continue where the offence disclosed is covered by section 211 and a complaint is pending. Similarly, on a parity of reasoning with regard to an offence under section 211, no cognizance can be taken by the Magistrate for the alleged offence under section 193 which is one of the offences mentioned in section 195(1)(b) [State of Punjab v Brij Lal Palta, AIR 1969 SC 355 : 1969 Cr LJ 645 (SC); (ML Sethi v RP Kapur, AIR 1967 SC 528 : 1967 Cr LJ 528 followed)].

If a public servant dishonestly misappropriates money received on behalf of State, the offence is under section 5(1)(C) of Prevention of Corruption Act. He can be prosecuted only with sanction. It cannot be evaded by ignoring the fact that he is a public servant and filing a complaint under section 408, Indian Penal Code, 1860 [Akki Veeraiah v State, AIR 1957 AP 663 : 1957 Cr LJ 1078 : 1956 Andh LT 169 : 1956 Andh WR 73]. Where offence under section 186, Indian Penal Code, 1860 is joined to offence section 353, Indian Penal Code, 1860, complaint is necessary [Maganbhai Ranchhodbhai v State of MP, AIR 1953 Nag 290 : 1953 Cr LJ 1573 : 1953 Nag LJ 364 ; Batakrushna Das v State, AIR 1961 Ori 14 : 1961 Cr LJ 132 (1) : 26 Cut LT 148]. When conviction under section 186, Indian Penal Code, 1860 is set aside for want of complaint, the accused can be convicted under section 143, Indian Penal Code, 1860 [Ch Inder Singh v State, AIR 1960 Punj 356 : 1960 Cr LJ 987 : 62 Punj LR 73]. When the accused was committed for trial under sections 471/467 and section 34, Indian Penal Code, 1860 and also sections 420/34 of Indian Penal Code, 1860, quashing of committal under section 471 for absence of complaint does not interfere with committal, under section 420 [State v Nemchand Pashvir Patel, : 1956 Cr LJ 603 : 57 Bom LR 1056 : ILR (1955) Bom 1064 ]. In a complaint for offences under sections 147, 148, 454, 427, 435 and 188, Indian Penal Code, 1860 want of complaint by tehsildar in respect of offence under section 188, Indian Penal Code, 1860 is no bar to cognizance of other offences [Re Mani, AIR 1967 Mad 400 : 1967 Cr LJ 1528 : 1966 Mad LW (Cri) 193 : 1967 (1) Mad LJ 33]. Where a joint trial is held for offences under section 188 and section 145, Indian Penal Code, 1860 and there was no complaint under section 195 in respect of the former offence, the conviction under section 145 also becomes bad as on vitiation of the trial under section 188 there would remain no unlawful assembly [Bansidhar Patnaik v Province of Orissa, AIR 1951 Ori 84 : 17 Cut LT 80 : ILR (1950) Cut 545 ]. [s 195.18] Offences under section 195(1)(a) and outside it.— On offering resistance to the execution of a decree by third parties the subordinate Judge refused to make a complaint. The district Judge made a complaint administratively.—Held the order cannot be sustained [Digam, 67 Cal WN 887]. Where the Court convicted under sections 186 and 506, Indian Penal Code, 1860 but there was no complaint in respect of section 186, the whole proceedings are vitiated as it acted without jurisdiction with regard to a part of the trial [Banshilal Dukhiram v State, AIR 1954 Nag 30 : 1954 Cr LJ 15 : 1953 Nag 470

Page 12 of 27 [s 195] Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evi.... : ILR (1953) Nag 847 ; Rudragouda, AIR 1937 B 160; Ram Ch, AIR 1930 B 129]. Complaint by personal assistant of public servant is not valid. [Loknath MishravState of MP, AIR 1964 MP 237 : 1964 (2) Cr LJ 420 : 1964 MPLJ 383 : 1964 Jab LJ 396 ; Krishna Tukaram Jadhav v Secretary to the Chief Minister, AIR 1955 Bom 315 : 1955 Cr LJ 1156 : 57 Bom LR 151 : ILR (1955) Bom 402 , see however, Barkat, A 1943 A 6; State v Nandlal Karunashankar, AIR 1951 Sau 8 : 1952 Cr LJ 850 : 1950 (3) Sau LR 248]. Where a person violates an order under section 144 and forms an unlawful assembly to take forcible possession of land and is prosecuted under sections 143, 144/114 of Indian Penal Code, 1860 without complaint from the Magistrate, his prosecution is not barred [Kashi Nath Pathak v Kitu Rajwar, AIR 1964 Cal 436 : 1964 Cr LJ 405 : 68 Cal WN 710 : A 1964 C 436]. But where the prosecution is under section 188, Indian Penal Code, 1860 for violation of prohibitory order under section 144 or section 145, this cannot be taken cognizance of by the Magistrate passing the order and he has to make a complaint in writing under section 195(1)(a) [Mahendra Prasad Singh v State of Bihar, AIR 1970 Pat 102 : 1970 Cr LJ 484 ].

Section 195(1)(a)(i), Code of Criminal Procedure, 1973 bars the Court from taking cognizance of any offence punishable under section 188, Indian Penal Code, 1860 or abetment or attempt to commit the same, unless, there is a written complaint by the public servant concerned for contempt of his lawful order. The object of this provision is to provide for a particular procedure in a case of contempt of the lawful authority of the public servant. The Court lacks competence to take cognizance in certain types of offences enumerated therein. The legislative intent behind such a provision has been that an individual should not face criminal prosecution instituted upon insufficient grounds by persons actuated by malice, ill-will or frivolity of disposition and to save the time of the Criminal Courts being wasted by endless prosecutions. This provision has been carved out as an exception to the general rule contained under section 190, Code of Criminal Procedure, 1973 that any person can set the law in motion by making a complaint, as it prohibits the Court from taking cognizance of certain offences until and unless a complaint has been made by some particular authority or person [C Muniappan v State of TN, AIR 2010 SC 3718 : (2010) 9 SCC 567 ]. [s 195.19] Evasion of section.— Police officer went to the house of the accused with search warrant. Accused called his supporters and they prevented the police officer from executing the warrant. Charges were under sections 143, 186 and 341 Indian Penal Code. Police report disclosed offences under section 186, Indian Penal Code, 1860 only. Complaint under section 341 was made only to evade application of section 195, Code of Criminal Procedure, 1973. It was held that taking cognizance of offence without any complaint of public servant concerned was illegal and without jurisdiction [HN Nanjegowda v State of Karnataka, 1988 Cr LJ 807 : 1987 (1) Kant LJ 344 : ILR (1987) Kant 1912 (Kant)]. [s 195.20] Splitting up.— Offences cannot be split up, in order to avoid the provisions of section 195. The underlying purpose of section 195(1)(a)(i) seems to be to check misuse of the machinery of criminal prosecution by unconcerned persons on frivolous, vexatious or insufficient grounds, inspired by a revengeful desire to harass or spite their opponents. Under section 461(k), if any Magistrate, not being empowered by law in this behalf, takes cognizance of an offence under section 190(1)(c) of the Code of Criminal Procedure, 1973, his proceedings shall be void.

The trial for the offence under sections 186 and 353, Penal Code, without a special complaint by the public servant concerned as required by section 195(1)(a)(i) of the Code of Criminal Procedure, 1973, is illegal [Ashok v State, 1987 Cr LJ 1750 (MP)]. [s 195.21] Court’s duty in the matter of complaint.— The Court should see that there should be reasonable chance of conviction before making complaint. See the following cases [Paree, 26 M 116; Kalicharan, 12 Cal WN 3; Mathura, 15 CLJ 337; Jadunandan, 37 C 250; Danappa, AIR 1922 B 38] although they were decided when sanction instead of complaint by the Court was required as such cases have their use inasmuch as the Court will still have to consider whether with reference to the evidence available a prosecution is desirable in the public interest although there may be a prima facie case for a complaint. See Nawab Ali, AIR 1931 C 760]. The Court will in every case consider its peculiar facts and decide. It must be recorded that it is expedient in the interest of justice that a complaint should be made [Ijjatulla, 35 Cal WN 400; Nabani, AIR 1933 C 147; Balgobind, AIR 1935 N 199; Bankey, AIR 1933 P 719; see section 340]. The paramountcy of public interest should be one of the chief considerations. In a complaint under section 183 the Court must have regard to the interests of public justice rather than to the gratification of party’s

Page 13 of 27 [s 195] Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evi.... grudge [Bajrang, AIR 1937 P 31]. The discretion is to be exercised on independent judgment and not in reference to police request [Sokhina, 7 C 87, 88; Shk Beari, 10 M 232; Bapu, 39 B 750]. It is very desirable that Courts making complaints should give some thought to the matter, frame proper charge and state in detail the names of witnesses likely to prove the charge [Gauri Shankar, AIR 1929 A 905]. [s 195.22] Obstructing public servant.— For offence under section 188, Indian Penal Code, 1860, complaint of the concerned authority is required under section 195, Code of Criminal Procedure, 1973. The provision cannot be evaded, by clubbing other offences which are cognizable, such as those under sections 143, 147 and 341, etc. of the Indian Penal Code or offences under the Police Act [Murugesan v State of TN, (1989) Cr LJ 1833 : 1988 Mad LW (Cri) 469 (Mad)]. [s 195.23] Complaint for making false charge.— It is settled law that before prosecuting a person for making a false charge (section 211, Indian Penal Code, 1860) he should be given by the Court an opportunity of substantiating his allegation [Bhawani, AIR 1932 L 246; Shamlal, 14 C 707, 712 FB; Shk Abdullah, AIR 1932 C 387; Akshay, 31 Cal WN 124; see however, Balakram, AIR 1940 O 100]. Nor is a Magistrate justified in prosecuting under section 182 or section 211, Indian Penal Code, 1860 without enquiring into and disposing of his naraji petition judicially [Munshi Isser, 14 Cal WN 765; Satkai, AIR 1947 C 439; Shamlal, supra; Lachmi, AIR 1932 C 383; Kangali, 40 Cr LJ 647; Bhagat, 40 Cr LJ 644]. There is no need to give further opportunity when a complaint is dismissed after a preliminary inquiry under section 202 [Mahabir, 32 Cr LJ 1032], or when it is disposed of under section 253 (now section 245) after examining witnesses and holding the case to be false [Fazlar, 31 Cr LJ 1055]. [s 195.24] Complaint for perjury.— In a complaint for giving false evidence it must be intentionally false and the alleged false statement should have a bearing upon the matter in issue [Sheodahin, 3 Cr LJ 46; Jagat, 31 Cr LJ 179; Chatur, 34 Cr LJ 33; Manohar, 28 Cr LJ 310] though the last condition is not always necessary [Jugal, 42 Cal WN 31; Baburam, 26 A 509]. Before a complaint there must be a finding that prosecution is in the interest of justice [Liaqat Hussain v Vinay Prakash, AIR 1946 All 156 : (1946) 47 Cr LJ 545 : ILR (1946) All 62 ]. Where an accused in the witnessbox deliberately makes two statements which are so contradictory and irreconcilable with each other then both cannot possibly be true, he can be convicted of perjury even without its being proved which one of them was not true [Ghulat, 7 A 44; Habibullah, 10 C 937; Umrao Lal v State, AIR 1954 All 424 : 1954 Cr LJ 860 : 1954 All LJ 246 : 1954 All WR 10]. Where the trial and appellate Courts have taken different views, a prosecution for perjury should not generally be made [Hiralal, AIR 1923 P 102; Appaji, AIR 1939 M 779; Rahmat, 32 Cr LJ 652]. When there is one statement in the committing Court and another in the sessions-Court the latter Court can complain that one or the other must be false [Ganesh Mull, AIR 1931 M 778].

Mere fact that contradictory statements have been made is not a ground for prosecution for perjury [Keramat, 55 C 1312 : 30 Cr LJ 221; Tripura, 37 C 618; Bajirao, 34 Cr LJ 649; Pragi, 37 Cr LJ 885; Re Balabhadra Narayudu, AIR 1957 AP 832 : 1957 Cr LJ 1211 : 1956 Andh LT 168 : 1955 Andh WR 575; see Kamini, A 1929 C 390] for it is in the interest of justice that prosecution witnesses should be free to tell the truth in the Sessions Court irrespective of whatever evidence they may have given as a result of pressure or influence [Suba Singh, AIR 1941 P 165; see Ningappa, AIR 1941 B 408]. But if a witness deliberately goes back upon his former statement in the committing Court, it is just that he should be prosecuted [Chanbassayya Rachayya Puajri v Emperor, AIR 1947 Bom 161 : (1947) 48 Cr LJ 474 : 48 Bom LR 755 : ILR (1946) Bom 950 ]. There should not be any rule that a witness making a statement in the Sessions Court contrary to what he said before is exempt from prosecution. There may be good reasons for not prosecuting should the subsequent statement be found to be true, but where it is false a prosecution should be made [Jit Singh, 36 Cr LJ 935]. Contradictory statement for perjury [Public Prosecutor v K Jalayya, AIR 1954 Mad 303 : 1954 Cr LJ 374 : 1953 Mad WN 554].

Supreme Court cannot assume jurisdiction proposing conviction for forgery and making false statement before Court (section 193, Indian Penal Code, 1860, without following the provisions of sections 195 and 240 Code of Criminal Procedure, 1973.—[Ahlawat v State of Haryana, AIR 2000 SC 168 : 2000 Cr LJ 388 : (2000) 1 SCC 278 : 1999 (4) Crimes 297 ].

Grant of sanction for prosecution without issuing show cause notice to petitioner and without holding proper

Page 14 of 27 [s 195] Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evi.... enquiry is improper. [Rajendra Kr Jain v Shrikant Nigam, 2001 Cr LJ 3070 : 2001 (2) MPLJ 240 : 2001 (4) Rec Cr R 170 (MP)]. [s 195.25] Complaint or sanction under Special Acts.— Some special Acts provide that no Court shall take cognizance of any offence under them unless there is a complaint or sanction as prescribed therein. eg certain offences under the Post Office Act, 1898 unless under section 72 ibid there is complaint by order of the Director General or Post Master General; offence under section 19(f), Arms Act, 1878 without the previous sanction of the Magistrate or the Commissioner of Police; offence under section 54(5), Income-tax Act, 1922 (section 280 of Act 43 of 1961), without the previous sanction of the Commissioner of Income-tax; offence under the Essential Supplies (Temporary Powers) Act, 1946 except on a written report by a public servant under section 11 of the Act; offence under the Factories Act except on a complaint as provided in section 106, ibid. [s 195.26] Public servant concerned.— In sub-section (1)(a) is the public servant to whom false information is given as also his successor [Kumar, AIR 1938 P 83; Jot Narain, AIR 1939 SC 164 ; Patel, AIR 1933 R 292; Chhedi, AIR 1939 O 160]. Whoever happens to occupy that post at the time of filing complaint is the public servant concerned and can file complaint [The Public Prosecutor v Mohammed Ali, AIR 1969 AP 41 : 1969 Cr LJ 145 (Daulatram v State of Punjab, AIR 1962 SC 1206 : 1962 (2) Cr LJ 286 relied on)]. Complaint must be by the public servant himself and he cannot authorise any other person to do [Krishna Tukaram Jadhav v The Secretary of the Chief Minister, AIR 1955 Bom 315 : 1955 Cr LJ 1156 : 57 Bom LR 151 : ILR (1955) Bom 402 ]. In a case there was a complaint against misuse of water from a public tank for purposes of irrigation. It was held that the complaint could only be filed by the Authority which had passed the order. The proceedings initiated on the complaint of a subordinate officer were liable to be quashed [Karansingh v State of MP, 2003 Cr LJ 1787 : 2002 (4) MPHT 582 : 2003 (3) Rec Cr R 339 (MP)]. Complaint under section 174, PC should be filed by the Magistrate whose order was disobeyed and not by the police [Sheomagan, AIR 1942 O 425]. An order by a Magistrate under section 144 is as a public servant and he is to file a complaint under section 188, PC [Narsing, 9 Cut LT 95]. When information was given to the officer-in-charge of a station, the junior officer who investigated cannot file the complaint [Kumar, supra explaining Kantir, AIR 1930 P 98]. When false information lodged at a police station is forwarded to another station for investigation, the officer of the latter station cannot file complaint [Ram Narain v State, AIR 1952 All 436 : 1952 Cr LJ 835 ; Sudarsan Barhombhai v Emperor, AIR 1947 Pat 64 : (1947) 48 Cr LJ 264 : 228 IC 593]. A complaint to a village Magistrate is for the purpose of informing the police and so the police can file complaint [Linga Baliya, AIR 1942 M 513].

When false information about bribery is given to the Chief Minister who refers to a Magistrate for inquiry and the information is repeated before him, he can file complaint under section 182 [Sheo Prasad v State, AIR 1959 All 378 : 1959 Cr LJ 683 : 1959 All LJ 44 : 1959 All WR 113]. When false information was given to the Superintendent of Police he is to file complaint under section 182, Indian Penal Code, 1860 not the trying Magistrate [Abdul Hakim, 33 Cr LJ 631]. A Patwari wrote to the Tehsildar that he was robbed by two persons. The Tehsildar forwarded it to the SDO who referred the matter to the police. The police on enquiry found the allegation false and started a prosecution under section 182, Indian Penal Code, 1860. The trial without a written complaint of the Tehsildar is without jurisdiction [Daulatram v State of Punjab, AIR 1962 SC 1206 : 1962 (2) Cr LJ 286 : 1962 Supp (2) SCR 812]. When a complaint filed before a Magistrate is referred to the police who reported it as false, the Magistrate is to file complaint [Jokhi, A 1929 P 92; Bachalal, A 1936 P 56]. So also, when a petition is sent by the District Magistrate to a Magistrate for enquiry, a complaint under section 182, Indian Penal Code, 1860 is to be filed by the former [Mukherjee, 67 Cr LJ 583]. When a complaint against certain constables made to the District Magistrate, the IG of Police and the Superintendent of Police was found to be false, any of them could file complaint under section 182 Indian Penal Code, 1860 [State v Reva Chand, AIR 1961 All 352 : 1961 (2) Cr LJ 47 : 1960 All LJ 884 : 1960 All WR 629; State v Roopa, AIR 1966 Raj 101 : 1966 Cr LJ 576 : 1966 Raj LW 33 ]. In respect of offence section 186, Indian Penal Code, 1860 for resisting Civil Court peons in their duties the judicial officer concerned may file complaint [Rajshahi, & C, AIR 1942 C 434; see rule 209, Calcutta High Court Rules and Orders, vol I, 1958 Edn].

The complaint is required to be filed by the public servant to whom false information is given. The complaint filed by the subordinate officer has been held to be improper in a number of cases [Randhir v State of Haryana, 2004 Cr LJ 479 : 2003 (4) All CrLR 541 : 2003 (4) Rec Cr R 651 (P&H)].

Page 15 of 27 [s 195] Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evi.... Convictions will be set aside when complaint is not made by the proper public servant prescribed [see Jagdamba, AIR 1933 A 626; Sudarsan Barhombhai v Emperor, AIR 1947 Pat 64 : (1947) 48 Cr LJ 264 : 228 IC 593; Santilal Mehta v Emperor, AIR 1948 Cal 103 : (1947) 48 Cr LJ 665 : 231 IC 54]. [s 195.27] “Or of some other public servant to whom he is administratively subordinate”.— It has been now made clear that “subordinate” means administratively subordinate, that is, some other public servant who is his official superior and under whose administrative control he works can also file the complaint. When a Magistrate refuses to complain under section 188, Indian Penal Code, 1860 for disobeying his order under section 144, the District Magistrate is competent to make a complaint, but not the Sessions Judge [The State v Sudhir Ruhidas, AIR 1959 Cal 450 : 1959 Cr LJ 833 : 61 Cal WN 658]. When a Magistrate or a munsif files a complaint under section 188, Indian Penal Code, 1860 he does so as a public servant and not as a Magistrate or a munsif. The question of subordinate of public servants in clause (a) is to be decided on the basis of sections 15, 19, 23 and sub- section (4) which deals with the subordination of Courts does not apply at all [Jaswant v State, AIR 1951 All 828 : 1951 Cr LJ 1508 : 1951 All LJ 710 : 1951 All WR 530; Maini, 6 P 39; Chandra, AIR 1942 O 50].

Although police officers are generally subordinate to the Magistrate of a district, the subordination (having administrative control) in section 195 is subordination to some superior police officer [Ramasory, 27 C 452; Khazan, 4 L 130—Contra : Shib Singh, 37 A 292; Chhote, 45 A 135]. A Magistrate passing order under section 144 does so as a public servant and he is subordinate to the District Magistrate and sub-section (4) does not apply [Maini, AIR 1927 P 111]; so also in respect of an order under section 145(6) [JaswantvState, AIR 1951 All 828 : 1951 Cr LJ 1508 : 1951 All LJ 710 : 1951 All WR 530].

Registrar of Small Cause Court is subordinate to the Chief Judge [Govardhandas, 27 B 130]. A Tehsildar is subordinate to the Magistrate [Kulsum, 12 Cr LJ 109]. Bailiff of Small Cause Court is subordinate to a Judge of that Court [Ghulam, 32 Cr LJ 964]. A Civil Court peon whose immediate superior is the presiding officer of the Court concerned—is also subordinate to the district Judge [Ramesh, 42 Cal WN 531; Rajshahi &c, AIR 1942 C 434]. A naib-nazir is subordinate to the nazir, the district Judge and to the judicial officer in-charge of nezarat [China Rangia, AIR 1943 M 170; Thakur, AIR 1936 P 74]. A Commissioner is subordinate to the judicial officer appointing him [Nana, AIR 1927 B 647]. A returning officer is subordinate to the District Magistrate [Madhusudan, AIR 1929 A 931].

A public servant is not debarred from filing a complaint when his subordinate has refused to do so [Ramesh, 42 Cal WN 531]. When the public servant concerned has withdrawn the original proceedings they cannot be revived by his superior authority at the instance of the aggrieved who is not a public servant [Madhusudan, 44 Cal WN 1011]. Withdrawal of complaint by public servant [see sub-section (2)]. [s 195.28] “In or in relation to any proceeding in any Court” [Sub-section (1)(b) (i).— In order that clause (b)(i) may apply the alleged offence should be committed in any proceeding in Court, or in relation to any proceeding in Court. It does not apply when action is taken in an administrative capacity [Santi, 42 A 130]. Nor does it apply when the presiding officer of a Court itself (Sarpanch of a Panchayat) is charged with offences under sections 193, 466, 120B, Indian Penal Code, 1860. It would be absurd to require that he cannot be prosecuted without a complaint by himself [Tirlok Chand v State, AIR 1959 All 512 : 1959 Cr LJ 937 : 1959 All LJ 354 : 1959 All WR 325].

The meaning of the expression “in relation to any proceeding in any Court” has been debated in a many decisions but divergent views have been expressed. The words “in relation to” are very wide [Bajaji Appaji Kote v Emperor, AIR 1946 Bom 7 , 10 : (1946) 47 Cr LJ 321 : 47 Bom LR : ILR (1945) Bom 1056 ]. The words should be given as wide an application as possible. Some of the offences mentioned in the clause are capable of being committed in relation to a judicial proceeding which did not exist. For instance, false evidence may be fabricated for a contemplated suit or execution proceeding [Daroga, AIR 1925 P 717]. In order that the Court may take action the offence need not have been committed before the Court; it may have been committed before the proceedings began. But it is indispensable that it must have in some manner affected those proceeding or been designed to affect them or come to light in the course of them. But forgery committed in

Page 16 of 27 [s 195] Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evi.... respect of a document in the custody of the Court after the termination of the proceedings in which it was filed is outside its scope [Subbarayadu, AIR 1932 M 290 : 33 Cr LJ 788]. The words being “any proceeding” it does not matter whether it is a judicial proceeding or not [Abdul Aziz, AIR 1933 R 225; Harnarain, AIR 1935 A 341].

Section 19(1)(b)(ii), Code of Criminal Procedure, 1973 would be attracted only when the offences enumerated in the said provision have been committed with respect to a document after it has been produced or given evidence in a proceeding i.e. during the time when the document was in custody of the Court. it is not attracted if the offence was committed for the purpose of forging the document before the said document was produced before the Court [Vishwambhar Ghanshyam Ban v State of Maharashtra, 2007 Cr LJ 849 (850) (Bom) : : 2007 All MR (Cri) 197 : (AIR 2005 SC 2119 relied on); Kishan Singhania v Dilip Singhania, 2008 Cr LJ 3749 (3753) (Gau); P. Swaroopa Rani v M Hari Narayana, AIR 2008 SC 1884 : (2008) 3 SCC (Cri) 797 : (2008) 5 SCC 765 (3687); Ashok Kumar Agrawal v State of Jharkhand, 2008 Cr LJ 3785 (3787) (Jhar) : 2008 (2) AIR Jhar R. 929; Suresh Shankar Kulkari v State of Maharashtra, 2008 Cr LJ (NOC) 1144 : 2008 (5) AIR Bom R 99 (Bom) : 2008 All Mr (Cri) 17; Schida Nand v State of Bihar, AIR 1998 SC 1121 : 1998 Cr LJ 1565 .]

The bar under section 195(1)(b)(i) would come into operation (i) if a proceeding in Court may actually be pending when cognizance is sought to be taken of an offence mentioned (in this case the offence was under section 211), and (ii) also when though no such proceeding is pending in any Court in or in relation to any offence which could have been committed, there may have been a proceeding which had already concluded and the offence may be alleged to have been committed in or in relation to that proceeding. But the bar does not apply if there is no proceeding in any Court at all, i.e., the section contemplates only the proceeding pending or concluded and not in contemplation [ML Sethi v RP Kapur, AIR 1967 SC 528 : 1967 Cr LJ 528 (SC)]. Unless the fabricated evidence (in this case forged sale deed) is not at all put in evidence in a proceeding in a Court, no offence under section 193, Indian Penal Code, 1860 falling within the scope of section 195 (1) (b) could be committed [State of Karnataka v Hemareddy, AIR 1981 SC 1417 : 1981 Cr LJ 1019 : (1981) 2 SCC 185 (SC)].

The words “in relation to a proceeding in Court” do not apply to a false charge to the police during investigation there being no proceeding in a Court. No complaint is necessary in such a case [see Jagat, 26 C 786; Tayebulla, 20 Cal WN 1265; Shk Ahmed, 13 Cr LJ 578; Bhimaraja, 13 Cr LJ 480; Govind, 45 B 668; Ma E, AIR 1939 R 148; Dharmadas, AIR 1938 SC 213 ; Raji, AIR 1939 SC 65 ; Sheo Bilas v State, AIR 1959 All 14 : 1959 Cr LJ 2 : 1958 All LJ 595 : 1958 All WR 665]. Cognizance may be taken of an offence against a public servant under section 218, Indian Penal Code, 1860 without a complaint when it is also an offence under section 193, Indian Penal Code, 1860 [Ganga Singh v State, AIR 1962 All 150 : (1962) (1) Cr LJ 240 : 1962 All WR 224].

Where no forgery is alleged to have been committed with documents while in custody of Court, though any party can file complaint but Court cannot file complaint [Jadu Mahato v State of Bihar, 2006 Cr LJ (NOC) 309 (Jhar) : 2006 (2) AIR Jhar R 37].

When the document was alleged to have already been forged before the same was introduced into evidence the question of any formal complaint being lodged by the Court does not arise at all [Makkadas Ali Mazumdar v Aftabuddin Barbhuiya, 2008 Cr LJ 835 (839) (Gau) : 2008 (84) All Ind Cas 289].

The proceedings against the petitioners under section 188, Indian Penal Code, 1860 have been initiated on the basis of the FIR and not on the basis of any complaint in writing of the public servant concerned as is required by section 195(1)(a) of the Code. The registration of FIR and the launching of proceedings thereafter against the petitioner is not permitted by the Code and thus, cannot be allowed to be sustained [Jiwan Kumar v State of Punjab, 2008 Cr LJ 3576 (3578) (P&H)].

Cognizance in relation to an offence punishable under section 211, Indian Penal Code, 1860 when such offence is alleged to have been committed in or in relation to any proceeding in any Court cannot be taken

Page 17 of 27 [s 195] Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evi.... except on the complaint in writing of such Court. The provisions of this section place restriction on the power of the Court to take cognizance under section 190 of the Code. The Magistrate taking cognizance under section 190 of the Code for an offence under section 211, Indian Penal Code, 1860 alleged to have been committed in or in relation to any proceeding in any Court has to determine whether the bar under the provisions of Section 195(1)(b) was applicable [Harish Chandra Pathak v Anil Vats, 2008 Cr LJ 2965 (2966) (All) : 2008 (3) All Lj 446 : 2008 (61) All Cri C 278].

The adjudicatory proceedings before Provident Fund Commissioner vested under section 7A of the Provident Fund and Miscellaneous Provisions Act (19 of 1952), is in the nature of judicial proceedings. Therefore, the complaint for intentional interruption to public servant sitting in judicial proceedings was held maintainable. [Amit Vashistha v Suresh, AIR 2017 SC 4469 : 2017 (10) Scale 368 ]. [s 195.29] Charge laid to the police.— No “complaint” by Court is therefore necessary when a false charge is laid only to the police [Tayebullah, 43 C 1152; Salma, AIR 1941 M 579; Emperor v Birdichand Chunnilal, AIR 1948 Nag 244 : (1948) 49 Cr LJ 326 : 1948 Nag LJ 103 : ILR (1948) Nag 381 ; Emperor v Hayat Fateh Din, AIR 1948 Lah 184 FB : (1948) 49 Cr LJ 531 : ILR (1947) Lah 645 FB]. But when the charge to the police is followed by a complaint or naraji petition to the Court on the same allegations, there can be no prosecution under section 211, Indian Penal Code, 1860 on the earlier false charge to the police without a complaint under section 195 as the alleged offence is committed in or in relation to a proceeding in any Court” [Tayebullah, supra; Brown, 44 C 650; Samir, 53 C 824 : AIR 1927 C 95; Satkari, AIR 1947 C 439; Md. Yasin, AIR 1925 P 483; Subhag, AIR 1932 P 152; Parameshwaran, 39 M 677; Dholliah, AIR 1931 M 702; Re PM Kamath, AIR 1954 Mad 561 : 1954 Cr LJ 799 : 1953 Mad WN 759; Sarup, AIR 1939 N 226; Chuhermal, AIR 1929 SC 132 ; Nabibux, AIR 1940 SC 209 ; Rambrose, AIR 1928 R 254; Shah Md., AIR 1941 L 216; Bajaji Appaji Kote v Emperor, AIR 1946 Bom 7 : (1946) 47 Cr LJ 321 : 47 Bom LR 664 : ILR (1945) Bom 1056 : 223 IC 35; Deb Narayan Chakraborty v State, AIR 1957 Cal 251 : 1957 Cr LJ 505 : 60 Cal WN 220; Ramlal v State, AIR 1960 Raj 168 : 1960 Cr LJ 995 : ILR (1960) 10 Raj 277 ; Ramdeo v State, AIR 1962 Raj 149 : 1962 (1) Cr LJ 760 : 1961 Raj LW 534 —Contra : Prag Dutt, 51 A 382; Kashiram, 46 A 906; Ranagaswami, AIR 1934 M 175; Ma E, AIR 1939 R 148; Raji, AIR 1939 SC 65 ; Emperor v Hayat Fateh Din, AIR 1948 Lah 184 : ILR (1948) Lah 645 : (1948) 49 Cr LJ 531 FB]. When a person complains to the police against several persons of whom some are charged by them before the Court no complaint by Court is necessary to prosecute the complaint under section 211, Indian Penal Code, 1860 in respect of the persons not charged by the police [Kodangi, 55 M 611 FB].

When a false report is lodged with the police charging a person with certain offences and there arises no proceeding of any kind whatsoever before a Magistrate in relation to the report, for taking cognizance of an offence under section 211, Indian Penal Code, 1860 against the maker of the false report, complaint by Court under section 195(1)(b) is not necessary [ML Sethi v RP Kapur, AIR 1967 SC 528 : 1967 Cr LJ 528 ]. But when subsequent proceedings arose before a Magistrate in connection with the report to the police and the Magistrate passed bail or remand order or discharged the accused, there was a conflict between various High Courts as to whether a complaint under section 195(1)(b) was necessary. This conflict has been settled by the Supreme Court by declaring that the aforesaid proceedings of passing bail or remand order or discharging the accused are proceedings in a Court as the Magistrate acts judicially, and as those orders result directly from the information lodged with the police, the said offence under section 211, Indian Penal Code, 1860 must be regarded as one committed in relation to those proceedings, and hence section 195(1)(b) is attracted and no cognizance of the offence of section 211, Indian Penal Code, 1860 can be taken except on complaint by the Magistrate [Kamalapati Trivedi v State of WB, AIR 1979 SC 777 : 1979 Cr LJ 679 : (1979) 2 SCC 91 (SC) (approving Boywalla, AIR 1941 B 294; State v Vipra Khimji Gangaram, AIR 1952 Sau 67 : 1952 Cr LJ 1084 : 5 Sau LR 56; Badri v State, 1963 (2) Cr LJ 64 : ILR (1963) 2 All 359 : 1963 All WR 270 (All) and rejecting Rangaswami, AIR 1934 M 175; Tayabullah, AIR 1917 C 593; Emperor v Hayat Fateh Din, AIR 1948 Lah 184 : (1948) 49 Cr LJ 531 : ILR (1948) Lah 645 FB]. When a complaint to a Magistrate was referred to the police for a report, the user of a forged document in the enquiry under section 202 before the police was user in or in relation to a proceeding in Court and a complaint by Court is necessary [Raghunandan, AIR 1934 P 156].

An accused was released by Magistrate D on a forged surety bond filed by a surety. The case was transferred to Magistrate K after challan and the offences under sections 419, 465, 467 and 471, Indian Penal Code, 1860 came to light before Magistrate K while procuring attendance of the accused on the basis of the forged surety

Page 18 of 27 [s 195] Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evi.... bond. As the earlier proceedings before Magistrate D and the subsequent proceedings before Magistrate K were stages in or parts of one and the same process the offences could be said to have been committed in or in relation to the proceedings in the Court of Magistrate K also [State of Maharashtra v Sk Bannu, AIR 1981 SC 22 : 1980 Cr LJ 1280 : (1980) 4 SCC 286 (SC)].

Some cases have held that although a complaint by a Magistrate is necessary under clause (b)(i) in the case of an offence under section 211, Indian Penal Code, 1860, the police might file a complaint under clause (a) in respect of an offence under section 182 [Daroga, A cases 1925 P 717; Ram Renu, AIR 1941 C 288; see Dhokteram, 5C 181], but other cases have differed from this view on the principle that there should not be a prosecution for a lesser offence when the facts constitute a graver offence [see Bajaji Appaji Kote v Emperor, AIR 1946 Bom 7 , 12 : (1946) 47 Cr LJ 321 : 47 Bom LR 664 : ILR (1945) Bom 1056 ; Prag Dutt, 51 A 382; Dholliah, 54 M 1018 and ante : “Evasion of section 195”]. But the conviction under section 182, Indian Penal Code, 1860 cannot subsequently be quashed because the accused afterwards makes a false complaint to a Magistrate in addition and exposes himself to a prosecution under section 211, Indian Penal Code, 1860 [Noto Ram, AIR 1943 L 31].

Where after a false charge by a person to the police the Court has at their instance already taken cognizance of a case under section 211, Indian Penal Code, 1860 and thereafter the person repeats the charge by a complaint or naraji petition to the Court, no complaint is necessary [Jamini, 43 Cal WN 279; Doroga, AIR 1934 P 573; Subhag, 11 P 155]. Anything that subsequently happens cannot operate to deprive a Magistrate of jurisdiction to proceed with the case of which cognizance has been taken [Kantir, AIR 1930 P 98].

The date when the Court takes cognizance of an offence under section 193, Indian Penal Code, 1860 is the crucial date for seeing whether section 195, Code of Criminal Procedure, 1973 applies. A complaint is necessary in these three cases : (i) The proceedings may be pending in a Court in relation to which the offence is alleged to have been committed; or (ii) they might have been disposed of before the prosecution was launched; or (iii) a suit might have been started in connection with which the offence was committed under section 193, but it might have been subsequently withdrawn before any prosecution is started. But where an offence is committed in respect of proceedings in Court which are contemplated but which in fact are never started, no complaint is necessary [Indrachand, AIR 1932 B 185 : 33 Cr LJ 386]. The Supreme Court has said that the bar operates in situations (i) and (ii) mentioned above. Although nothing has been said about situation (iii) it appears that it is covered by situation (ii) ML Sethi v RP Kapur, AIR 1967 SC 528 , 533 : 1967 Cr LJ 528 (SC)]. Where the document (letter) alleged to be fabricated (or a carbon copy of the same) was produced before the special Judge, earlier to his taking cognizance of the offence (assuming a case under section 193, Indian Penal Code, 1860 was made out), section 195(1)(b)(i) does not apply [SR Yellappa v State of Karnataka, (1976) 2 Kant LJ 407 : 1977 Cr LJ (NOC) 154 : 1976 Mad LJ 559 (Laljibhai Somabhai Patel v State of Gujarat, AIR 1971 SC 1935 : 1971 Cr LJ 1437 : (1971) 2 SCC 376 (SC) and ML Sethi v RP Kapur, AIR 1967 SC 528 : 1967 Cr LJ 528 (SC) relied on)].

Offences committed in relation to proceeding in trial Court are committed also in relation to the appeal before the appellate Court and the appellate Court can make a complaint. For instance, when perjury is committed in the trial Court it must also be deemed to have been committed in relation to the appeal [Ketaki, 53 A 799; Hasam, 36 Bom LR 221]. Proceeding under sections 448 and 454, Indian Penal Code, 1860 was not vitiated for want of complaint under section 195 [SM Fazlul Haq v State, AIR 1964 All 103 : 1964 (1) Cr LJ 324 : 1963 All LJ 501 : 1963 All WC 408]. Statement during investigation under section 164 into an offence triable by Sessions Court must be held in relation to the trial in that Court [Maromma, AIR 1933 M 125].

If during proceedings which are ultra vires any offence under section 193 or section 471 is committed, it cannot be said that it was committed in or in relation to any proceeding in Court [Sumat, AIR 1942 A 11]. [s 195.30] “Offences” in sub-section (1)(b)(ii).— Section 195(1)(b)(ii) of the Code bars the Court from taking cognizance of any offence punishable under section 193, Indian Penal Code, 1860 and other offences indicated therein, unless, there is a written complaint made by the concerned Court. The object of this section is to stop private persons from prosecuting the

Page 19 of 27 [s 195] Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evi.... persons as amongst all wreaking vengeance the offence must have been committed in relation to any proceeding in the trial Court [Kailash Mangal v Ramesh Chand, 2015 (2) Scale 615 ].

The offences specified relate to chapter 18 Penal Code. The word “forgery” is used as a general term in section 463, Indian Penal Code, 1860 and that section is referred to here in a comprehensive sense so as to include cognate sections and to embrace all species of forgery, e.g., under section 467 [Tulja, 12 B 36; Khairati, A 1925 L 266; Teni, 14 Cal WN 479; Ismail, AIR 1925 N 337 : Ram Samujh, 27 Cr LJ 969] or section 466, Indian Penal Code, 1860 [SL Goswami v High Court of MP at Jabalpur, AIR 1979 SC 437 : 1979 Cr LJ 193 : (1979) 1 SCC 373 ; Bachu, 20 Cr LJ 630], or section 468, Indian Penal Code, 1860 [Ass Sesst Judge, 36 M 387], but not under section 474 Indian Penal Code, 1860 [Asrabuddin, 19 Cal WN 125; Ibrahim, 29 Cr LJ 849], or section 477A, Indian Penal Code, 1860 [Jethmal, 33 Cr L 328; Balgounda, 32 Cr LJ 1017]. Complaint may be made in respect of false claim on a forged document although the suit was decided by consent [Ram Narain, 27 Cr LJ 1021].

In the present case, as per the complaint petition, the alleged forged deed of power of attorney was not produced or given in evidence in any Court. As such the provisions of section 195(1)(b)(ii) cannot be attracted to the present case. There is no necessity of complaint in writing by the Court where forged document was fraudulently or dishonestly used as genuine [Shailendra Pradhan v Vipparla Jyoti, 2006 Cr LJ 1483 (1485) (Ori)].

A complaint under section 195(1)(b)(ii) is not necessary for prosecution for an offence under section 466, Indian Penal Code, 1860. Though the ingredients of the offence in section 463, Indian Penal Code, 1860 have got to be satisfied in establishing a charge under sections 466 and 467, Indian Penal Code, 1860 each and every offence under sections 466 and 467, Indian Penal Code, 1860 are by themselves distinct offences because some more ingredients other than those in section 463 PC, are involved [SP Yellappa v State of Karnataka, (1976) 2 Kant LJ 407 : 1977 Cr LJ (NOC) 154 : 1976 Mad LJ (Cri) 559 (Govind Mehta v State of Bihar, AIR 1971 SC 1708 : 1971 Cr LJ 1266 : (1971) 3 SCC 329 relied on)].

An offence under section 467, Indian Penal Code, 1860 is covered within the ambit of the word “any offence described in section 463, Indian Penal Code, 1860” [Maharaji v Ramashanker, 1983 Cr LJ 24 : 1981 All Cr C 289 : 1982 All WC 716(All)].

Where no complaint is made by the Court in which fraudulent money receipt is produced, prosecution is not maintainable [Gopalakrishna Menon v D Raja Reddy, AIR 1983 SC 1053 : 1983 Cr LJ 1599 : (1983) 4 SCC 240 : 1983 (2) Crimes 584 (SC)].

Where the Magistrate took cognizance of forgery and alleged offence was committed by the accused prior to production of document in question before Civil Court, in such position bar of section 195 (1)(b)(ii) would not be attracted [T Govind Raju v State of Karnataka, 1995 Cr LJ 1491 (Kant)].

In this case, the Khatauni was fabricated and prepared in a forged manner in the record office, Faizabad and was produced subsequently before the Court to get benefit of the same. It was held that the bar under section 195(1)(b)(ii), Code of Criminal Procedure, 1973 would not be applicable [Ram Gopal v State of UP, 2011 Cr LJ 3707 (3710) (All)].

The allegations against the accused was that a forged document i.e. power of attorney and will were prepared first and then produced before the revenue authorities. It was not the case of prosecution that the document was first tendered in the Court and then it was forged. It was held that the prosecution of the accused was not barred by section 195, Code of Criminal Procedure, 1973 [Ram Pratap Pandey v State of UP, 2010 Cr LJ 3615 (3618) (All)].

Page 20 of 27 [s 195] Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evi.... While an appeal cannot be heard by an Additional Sessions Judge, Asst. Sessions Judge or a CJM unless the same has been made over to him by the Sessions Judge or has been directed to be heard by him by the High Court, a Sessions triable case can be tried by an Additional or Asstt Sessions Judge on being directly committed to any of them by a Magistrate. If a case is committed to an Additional or Asstt Sessions Judge without any order having been passed by the Sessions Judge or the High Court, then such committal is an irregularity curable under section 468, Code of Criminal Procedure, 1973 [Bhuban Chandra Sharma v State of Meghalaya, 2007 Cr LJ 3315 (3323) (Gau)]. [s 195.31] “Document produced or given in evidence”.— “Document” (see section 3, Evidence Act), section 195(1)(b)(ii) only requires the production of a forged document or its being given in evidence [Narasimha Rao, 1937 MWN 887 ]. The section refers to a document alleged to be forged and not a copy of it and so where the document in respect of which charge was laid had not itself been produced but a copy of it, “it is plain that section 195 (1) (b) (ii) cannot operate as a bar to prosecution [Sanmukh singh v The King, AIR 1950 PC 31 : 77 IA 7 : (1950) 51 Cr LJ 651 : 54 Cal WN 364 : 52 Bom LR 465; (Girdhari, AIR 1925 O 413 approved); Bajirao Yeshwantrao v State, AIR 1954 Nag 95 : 1954 Cr LJ 425 : 1953 Nag LJ 583 ; Budhuram v State of Rajasthan, 1963 SCD 186 : 1963 (2) Cr LJ 698 : 1963 (3) SCR 376 ; Om Prakash v Mangild, 2004 (1) Crimes 648 (649) (Raj)].

Producing forged document and giving it in evidence have been placed on the same footing. The one or the other is sufficient. The person producing a forged document need not be the offender himself. It may be produced by a party or a person who is not a party to the proceeding. If an offence has been committed but the document has not been produced, the section does not apply. A document produced means one which is produced for the purpose of being tendered in evidence or for some other purpose [Nirmaljit Singh Hoon v State of WB, AIR 1972 SC 2639 ; Narayan, 12 Bom LR 383; Gobindram, AIR 1942 SC 62 ; MN Narasimha Pandith, 2002 Cr LJ 2145 Kant : 2002 (5) Kant LJ 589 : AIR 2002 Kant HCR 1171; Bagh Singh v Iqbal Singh, 2002 Cr LJ 1891 (P&H) : 2002 (1) All CrLR 841 : 2002 (1) Chand CrC 263]. It may be produced or given in evidence by a party or some one else [Gobindram, supra; Bhan Vyankatesh, 49 B 608]. The words “or is produced or given in evidence” are disjunctive [Baju, AIR 1929 P 60]. The forged bills in respect of which offence was alleged to have been committed having neither tendered nor produced in evidence before the Company Judge the requirements of section 195(1)(b) (ii) were not satisfied [Legal Remembrancer of Govt of WB v Horidas Mundra, AIR 1976 SC 2225 : 1976 Cr LJ 1732 : (1976) 1 SCC 555 (SC)]. Production of forged document before police in the course of investigation ordered by the Magistrate under section 156(3) is not production in a proceeding before the Magistrate so as to attract bar under section 195(1)(b)(ii) [Nirmaljit Singh Hoon v State of WB, AIR 1972 SC 2639 ].

Production of an account book before officer of Court under O VI, rule 17, Code of Civil Procedure, 1908 is production in Court [Rameshwar, AIR 1927 A 571]. Where a document was called for from another Court by a party and was used by his pleader during argument and also referred to by Court, it was “produced” Nalini, 21 Cal WN 640]. Production of original forged document in Court to satisfy counsel that copy of it annexed to affidavit is correct copy does not attract clause (1)(b)(ii) [Nirmaljit, supra]. The fact that a document is mentioned in an affidavit filed in Court and inspected by the other party is not production in Court [Munisamy, 45 M 928 FB]. A document attached with a police report is not produced in Court [Janardhan, 21 Cr LJ 272].

The word “in respect of in sub-section (I) (b)(ii)” are wide enough to include even a document which was prepared before the proceeding started in a Court but was produced or given in evidence in that proceeding [Har Prasad v Hans Ram, AIR 1966 All 124 : 1966 Cr LJ 244 : 1965 All WR 82].

A document is given in evidence if it is handed over by the person tendering it to Court although it is not exhibited or judicially considered or is rejected for want of stamp or registration [Parameshwaram, 39 M 677; Gurucharan, 29 C 887; Bansi, 26 Cr LJ 24], or if the Judge to whom it is handed over returns it to the party [Gulabchand, 49 B 799].

Where the petitioner files documents and the Magistrate finding it suspicious sends it for verification, there is no

Page 21 of 27 [s 195] Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evi.... production of the document before the Court within the meaning of the section [Sriniwas Rao v State of AP, 2002 Cr LJ 3880 (AP) : 2002 (2) Andh LD (Cr) 218].

No Court shall take cognizance of any offence described in section 463 Indian Penal Code, 1860 when such offence is alleged to have been committed in respect of a document produced in a proceeding before any court, except on a complaint in writing of that Court [M Ravi v Elumalaichettiar, (2007) 1 Mad LJ (Cr) 207 (Mad)].

Provisions of section 195(1)(b)(ii) of the Code would be attracted only when the document was forged after it was produced in evidence and was in custody of Court [Vishwambhar Ghanshyam Ban v State of Maharashtra, 2007 Cr LJ 849 (Bom)]. [s 195.32] Pre-trial forgery.— The bar under section 195(1)(b)(ii) does not apply where forgery of a document is committed before production of the document in Court.— [Sachedanand Singh v State of Bihar, AIR 1998 SC 1121 : (1998) 2 SCC 493 : 1998 Cr LJ 1565 : 1998 (1) Crimes 142 ; MN Narasimha Pandith, 2002 Cr LJ 2145 (Kant) : 2002 (5) Kant LJ 589 : 2002 AIR Kant HCR 1171; Bagh Singh v Iqbal Singh, 2002 Cr LJ 1891 (P&H) : 2002 (1) All CrLR 841 : (2002) 1 Chand CrC 263; Om Prakash Singh v State of UP, 2011 Cr LJ 210 (All); Iqbal Singh Marwah v Meenakshi Marwah, AIR 2005 SC 2119 : (2005) 4 SCC 370 ]. The contrary view.—[Andhra Bank v SHO, 1996 Cr LJ 277 , 279 : 1996 (2) All CrLR 741 : 1996 (1) Cur Cr R 579 (AP) is not good law]. [s 195.33] Copy of document.— Section 195(1)(b)(i) does not apply where the (alleged) forged document was not produced in any proceeding in Court and only a copy was produced [State of Karnataka v H Kemareddy, AIR 1981 SC 1417 : 1981 Cr LJ 1019 : (1981) 2 SCC 185 (SC); Om Prakash v Mangild, 2004 (1) Crimes 648 (649) (Raj)]. [s 195.34] Subsequent suit.— Where the Magistrate has already taken cognizance of offence under section 471, PC subsequent suit by accused in Civil Court on the basis of that document does not render a complaint necessary [Biswambhar, 33 Cal WN 474; Nanak Chand, AIR 1937 L 238]. Where offences have been committed long after proceedings have terminated, section 195 does not apply [Kartick, AIR 1930 C 278]. [s 195.35] Offence before production of document.— Section 195(1)(b) does not apply where a document is fabricated prior to its production in Court or prior to being given in evidence. The offence (for which prosecution is barred without complaint under section 195) must have a reasonably close nexus with the Court proceedings so that Court can satisfactorily consider, by reference principally to its record the expediency of prosecuting the delinquent person [Harbans Singh v State of Punjab, AIR 1987 P&H 19 : (1986) 90 Punj LR 339 : 1986 Cr LJ 1834 (FB)].

Negotiable Instruments Act.—In the instant case, the petitioner made a complaint under section 138, NI Act against the respondent. The respondent filed a complaint against the petitioner that the cheque was forged. The forgery in respect of the cheque was committed before the cheque was produced in the Court. It was held, that the criminal proceedings relating to forgery of cheque were not barred under section 195(1) (b)(ii) [Laxmi Chand Goyal v Gajanand Burange, 2010 Cr LJ (NOC) 188 (Chh)]. [s 195.36] Sub-section (1)(a)(ii), (iii) and sub-section (1)(b)(iii), [Abetment and conspiracy].— As to abetment, see chapter 5, Penal Code and as to attempts to commit offence see section 511, ibid. The sub-section means that if a complaint is necessary in respect of a substantive offence, it is also necessary in the case of abetment [Assudomal, AIR 1940 SC 100 ]. for prosecution of conspiracy under section 193 read with section 120 Indian Penal Code, 1860, sanction of the Magistrate is necessary [Mathura, AIR 1932 C 850]. Section 196 (2) deals with criminal conspiracy and not with abatement of that offence [Bhikari, AIR 1934 P 561].

Complaint is not necessary for offence of criminal conspiracy for tampering with evidence of defence witness committed during preparation of paper book for appeal to the Supreme Court as the document was not produced or given in evidence [S L Goswami v High Court of Madhya Pradesh, Jabalpur, AIR 1979 SC 437 : 1979 Cr LJ 193 : (1979) 1 SCC 373 (SC)].

Page 22 of 27 [s 195] Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evi.... [s 195.37] Sub-section (2)—[Withdrawal of complaint].— It applies only when complaint is made by public servant under sub-section (1)(a) and not by Court [Ram Pd, 49 A 752]. As to withdrawal of complaint by Court see section 341. Where a public servant files a complaint in respect of an offence under section 195(1), clause (a), there is no appeal [Brijendra, AIR 1927 A 828] but under sub-section (2) application can be made to the authority to which the public servant is subordinate to withdraw [Mamidi Hariharayulu v Annavarapu Bangarayya, AIR 1953 Mad 569 : 1953 Cr LJ 1076 : 1953 (1) Mad LJ 24 : 1952 Mad WN 959]. A complaint by a Magistrate under section 188, Indian Penal Code, 1860 is made as a public servant and not as a Court and so an application for withdrawal lies to the District Magistrate and not to the Sessions Judge [Maini, AIR 1927 P 111; Nagu, 57 M 1101; Chandra, AIR 1940 O 50; see Jaswant v State, AIR 1951 All 828 : 1951 Cr LJ 1508 : 1951 All LJ 710 : 1951 All WR 530; Vijayaranga, AIR 1945 M 58]. Where a First Class Magistrate has filed a complaint under section 188, Indian Penal Code, 1860 the District (Chief Judicial) Magistrate and not the Additional District (Chief Judicial) Magistrate can withdraw it [Bondalapati Thatayya v Gollapudi Basavayya, AIR 1953 Mad 956 : 1953 Cr LJ 1780 : 1953 Mad WN 485]. A district Judge making a complaint under section 182, Indian Penal Code, 1860 does so as a public servant [Brijendra, AIR 1927 A 828]. Any authority covers the District Magistrate in relation to the police [Kantir, AIR 1930 P 98]. The order of withdrawal being judicial, it should be passed without notice to the other side [Shamrao Ganpatrao Patil v King-Emperor, AIR 1949 Nag 226 : (1949) 50 Cr LJ 580 : 1949 Nag LJ 242 : ILR (1949) Nag 475 ]. A summary rejection of application for withdrawal is improper. The applicant should be given a hearing [Nagu, AIR 1934 M 473]. [s 195.38] “Court” [Sub-section (1)(b) and sub-section (3)].— The definition of “Court” has been substituted. In view of the new definition of “Court” in sub-section (3) the scope of what is or what is not a “Court” for the purpose of sub-section (1)(b) has been much narrowed down for it now means only a civil, criminal or revenue Court properly so called and it includes only one another category, namely, a tribunal constituted by an Act if declared by that Act to be a Court for the purposes of this section. So a Criminal Court when required to take cognizance of offences falling within the scope of clause (b) would be left with the comparatively easy question whether the judicial body or authority concerned was a Civil Court or a Criminal Court or a revenue “Court” or a tribunal of the description mentioned in sub-section (3). In the new section 340 “Court” having been given same meaning the scope of Court is the same in both. [s 195.39] “Civil etc. Court”.— The terms “civil Court”, “criminal Court” and “revenue Court” have not been defined. Court expressly constituted by Code of Civil Procedure, 1908 or any other law for deciding disputes of civil nature is civil Court and Court expressly constituted by Code of Criminal Procedure, 1973 or any other law for vindication of wrong committed against public is Criminal Court [see Sriramarao, AIR 1954 M 340; Narayan, AIR 1966 My 5 ; Nilmoni, 9 C 295 : 9 IA 174]. Similarly, Court expressly constituted by any law for deciding disputes on revenue matters is revenue Court [Har Prasad v Hans Ram, AIR 1966 All 124 : 1966 Cr LJ 244 : 1965 All WR 82 : 1965 All Cr R 93]. Revenue means all public money which the State collects and receives from whatever source in whatever manner by way of taxes, duties, etc., according to the laws of the State [Gopal Pd., AIR 1957 Pu 45 ]. Unless revenue Courts are so expressly constituted, merely because some executive officers or instrumentalities of the State employed for the purpose of taxation or revenue collection, have, in the discharge of their duties, to perform certain quasi-judicial functions will not be converted into revenue Courts thereby [Jagannath Prasad v State of UP, AIR 1963 SC 416 : 1963 (1) Cr LJ 330 ].

The word used is “Court” and not “Judge” or “presiding officer” [Faquir, AIR 1928 L 759]. “Court” does not mean the particular Judge before whom the offence is committed and includes the successor to the post [Bahadur, 37 C 642 FB superseding Begu, 34 C 551 FB; Lakshmidas, 32 B 184; Girwar, 6 ALJ 392; Nawab, 34 A 393; Ram Ajodhya, 28 Cr LJ 643; Behari, AIR 1940 L 292]. [s 195.40] District Judge.— A district Judge is legally a different person from a Sessions Judge though the same person holds both offices and acts done by one cannot be considered as acts done by the other [Bal Gangadhar, 26 B 785]. A Collector deciding a revenue appeal cannot file a complaint in his capacity as a Magistrate [Ramsahai, 40 A 144]. A Magistrate passing order under section 144 does as a public servant and not as a Court. It is otherwise as regards section 145 [Nataraja, 47 M 56; see however Arunachallam, 35 Mad LJ 454].

Page 23 of 27 [s 195] Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evi.... When a Court is composed of several Judges (e.g. Presidency Small Cause Court or High Court) complaint may be made by one of the Judges if the particular Judge who heard the case is absent [Molla, 33 C 193; see Vardarajalu, AIR 1937 M 716; Bai Kasturbai, 49 B 710]. In the case of Panchayat Court it means all the members of the Bench [Vithal, AIR 1936 N 275—Contra : Sarpanch can make a complaint, Asharfi Lal v State, AIR 1952 All 306 : 1952 Cr LJ 621 : 1951 All LJ 551].

Rent Controller and Appellate Authority under East Punjab Urban Rent Restriction Act, 1949, are Civil Courts within sections 195(1)(b) & (3) [Daulatram Girdhari Lal, 1979 Cr LJ 1204 : 81 Punj LR 647 (P&H); (Vidya Devi v Firm Madan Lal Prem Kumar, AIR 1971 P&H 150 FB : 1971 Cr LJ 637 : 73 Punj LR 61 folld.)]. Income-tax Officer [Balakrishnan, 1976 Mad LJ (Cr) 531], Custodian under Administration of Evacuee Property Act, 1950 [Nawab Mohan, 1977 All Cr R 75]. Sub-Registrar [Ajoykumar Roy v Raj Ballav Mandal, 1978 Cr LJ 1502 : 82 Cal WN 750] are not Courts. Deputy Collector, In-charge of Land Reforms or the Addl. Collr. or Addl. Commer, hearing mutation dispute is not a Court within section 195(1) (b) and section 340 [Lal Bihari PrasadvState of Bihar, 1980 Cr LJ 64 : 1979 Pat LJR 557 : 1979 BLJR 458 (Pat); Mithlesh Kumar Gupta v State of UP, 1983 Cr LJ (NOC) 76 : 1983 All WC 129 : (1983) 46 FLR 294 : 1983 (1) LLN 704 (All)]. [s 195.41] High Court.— All that sub-section (4) of section 195 says is that irrespective of the fact whether a particular Court is subordinate to another Court in the hierarchy of judicial administration, for the purpose of exercise of powers under section 195(1), every Appellate Court competent to entertain the appeals either from decrees or sentence passed by the original Court is treated to be a Court concurrently competent to exercise the jurisdiction under section 195(1). High Courts being constitutional Courts invested with the powers of superintendence over all Courts within the territory over which the High Court exercises its jurisdiction, is certainly a Court which can exercise the jurisdiction under section 195(1). In the absence of any specific constitutional limitation of prescription on the exercise of such powers, the High Courts may exercise such power either on an application made to it or suomotu whenever the interests of justice demand [Perumal v Janaki, (2014) 5 SCC 377 : 2014 Cr LJ 1454 (SC)].

The expressions “public servant: or his “administrative superior” do not exclude High Court. In the instant case, the High Court ordered investigation into allegation that motor accident claim was false. The bar under section 195(1)(a) cannot be invoked. [CBI v M Sivamani, AIR 2017 SC 3583 : 2017(8) Scale 398 ]. [s 195.42] Registrar of documents.— Where the registration authority (who is custodian of the deed until it is delivered to the parties finds forgery in respect of the vendors photograph he its his duty to uniform the police. He is not a party to the civil suit.— [Ram Singh v State of UP, (1996) Cr LJ 96 , 98 : 1995 All LJ 1642 (All)]. [s 195.43] Decisions under 1898 Code.— Decisions under the old section which held authorities as Courts for the purpose of this section are given below. In view of the new definition many of them may not now hold good but they may throw some light on the point— Registrar of Small Cause Court is a Court for certain purposes [Balchand, 18 Cal WN 1323; Jagannatha, AIR 1942 M 326]; but not when he is directed to enquire about the truth or falsity of an affidavit [Jagannath, supra] or making a similar enquiry when taking security [Varadamanujulu, AIR 1942 M 737]; Asst. Registrar of Cooperative Societies to whom dispute is referred [Subbi Reddi, AIR 1930 M 869]; Certificate Officer [Sunder, 28 C 217; Harilal, 51 Cal WN 925, 926—Contra : Jharu, 2 P 257]; Court holding investigation under section 14 Patni Regulation 8 of 1819 [Bibhuti, 38 Cal WN 578]; Income-tax Officer [Panamchand, 38 B 642; Reddy, AIR 1930 R 201; Malji Manilal Kamdar v Lalji Haridas, AIR 1963 Bom 70 : 1963 (1) Cr LJ 569 : 64 Bom LR 348 : (1962) 45 ITR 257 ; see however Chparala Krishna Brahman v Guduru Govardhanaiah, AIR 1954 Mad 822 : 1954 Cr LJ 1283 : 1954 (2) Mad LJ 332 : (1954) 25 ITR 407 ]; Judge conducting proceeding under section 195, Companies Act (section 477 of Act 1 of 1956) [Md. Tahir, AIR 1961 L 52]; Tribunal under the Calcutta Improvement Act [Nandalal, 45 C 585]; Election Tribunal under UP Municipalities Act [Shiv Kumar v State, AIR 1963 All 395 : 1963 (2) Cr LJ 118 : 1962 All LJ 921 : 1962 All WR 746]; Rent Controller [Bhagabati, AIR 1955 NUC (C) 830]; Thika Controller [Sudhir, 65 Cal WN 600]; Mamlatdar [Narayan, 39 B 310; Rachappa, AIR 1936 B 221]; Debt Conciliation Board under C.P. Act 3 of 1933 [Babulal, 41 Cr LJ 376]; Court appointing guardian under Guardian and Wards Act [Tularam, AIR 1927 N 184]; Magistrate recording a statement under section 164 [Haranarain, AIR 1935 A 341]; Court in which deposit is made under section 83, T.P Act [Laldip Singh v Ram

Page 24 of 27 [s 195] Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evi.... Chander Singh, AIR 1947 Pat 37 : (1947) 48 Cr LJ 203 : ILR 25 Pat 385 : 228 IC 309]; Tahsildar dealing with mutations proceedings is revenue Court [Har Prasad v Hans Raj, AIR 1966 All 124 : 1966 Cr LJ 244 : 1965 All WR 82]. Tahsildar conducting mutation proceedings under section 34 of UP Land Revenue Act, 1901 is Revenue Court [Maharaji v Rama Shanker, 1983 Cr LJ 24 : 1982 All Cr C 289 : 1981 All WC 716 (All)]. Deputy Commissioner acting as reference authority is Civil Court [Arakhita, AIR 1963 Or 162 ]. [s 195.44] Commission of inquiry.— A Commission of Inquiry is not a Court [Baliram Waman Hiray v Justice B Lentin, AIR 1988 SC 2267 : 1988 Cr LJ 306 : (1988) 4 SCC 419 : 1988 (3) Crimes 655 (SC)].

District Magistrate under UP Rent Act is not a Court [Chandrapal Singh v Moharaj Singh, AIR 1982 SC 1238 : 1982 Cr LJ 731 : (1982) 1 SCC 466 (SC) [As to Committee of Inquiry, see Kiran Bedi v Committee of Inquiry, AIR 1988 SC 2252 : 1989 Cr LJ 303 : (1988) 4 SCC 49 (SC)]. [s 195.45] Proper Court to make complaint.— The Courts that can make complaints are those before whom the alleged offences were committed or the superior Courts to which such Courts are subordinate [Juggut, 6 C 440; Hiralal, AIR 1932 P 243; Manekalal, 28 Bom LR 1296; Wajid Ali, 35 Cr LJ 824; Vishnu Kumar v State of AP, 1980 Cr LJ 1361 : 1980 (2) Andh LT (N) 37 : 1980 Mad LJ (Cri) 730 (AP)]. A successor of the Judge or Magistrate can complain but the Court must be the same [Ratti Ram Agarwala v State, AIR 1960 Pat 206 : 1960 Cr LJ 631 (2) : 1960 Pat LJR 26 : 1960 BLJR 153 ; see however Ramzani v State, AIR 1960 All 350 : 1960 Cr LJ 774 : 1960 All LJ 7 : 1960 All WR 22]. If a Magistrate subordinate to District Magistrate does not file a complaint it is open to the District Magistrate to file the complaint for offences under sections 172-188, Indian Penal Code, 1860 but he cannot direct Sub-divisional Magistrate to file the complaint who is another public servant subordinate to the District Magistrate [Nityanath Jha v State, AIR 1965 Pat 154 : 1965 (1) Cr LJ 464 : 1965 BLJR 70 ]. If the case or proceeding in which the offence is committed has been before various Courts, then all the Courts have jurisdiction to complain, but normally the Court which finally tried the suit would be the proper Court [Behari, AIR 1940 L 292; see Hasam, AIR 1934 B 185]. If a false complaint made to a Magistrate is transferred under section 192 to another Magistrate, the latter who has seisin of the case can make a complaint [Bhiku, 39 C 1041]. Where one person charged another with offences committed before an arbitrator to whom the suit had been referred, the case is within section 195 [Mula, 15 Cr LJ 358].

When a temporary Magistrate’s Court is transferred, the Sessions Judge can make the complaint [Jailal, 47 IC 286]. When a Court is abolished and re-established after some time, the new Court cannot make a complaint in respect of an offence before the old Court [Appa, 19 Cr LJ 787].

Power to make complaint cannot be delegated to public prosecutor [Gurditta, 18 Cr LJ 548]. When offence is committed in a suit tried by the High Court, any Judge can make a complaint. It may be done on application or otherwise, such as on a note put up by the office [Varadarajalu, AIR 1937 M 716; Bai Kasturibai, 49 B 710]. When the High Court directs a complaint, the Deputy Registrar is the proper officer to file it [Sheoshankar, 41 Cr LJ 697]. As to procedure, see Ramjan, 33 Cal WN 328, 332]. High Court may make complaint in respect of offences committed in subordinate Courts [Syed Khan, AIR 1924 R 369], or in exercise of revisional jurisdiction [Bridgnell, 38 Cr LJ 1002; Shankar, 38 Cr LJ 1080]. [s 195.46] Sub-section (3).— Section 195(3), Code of Criminal Procedure, 1973 states that the Court means a Civil, Revenue or Criminal Court and includes a Tribunal constituted by or under a Central, Provincial or State Act, if declared by that Act to be a Court for the purpose of the section. In view of this definition, the Assistant Registrar under the Cooperative Societies Act cannot be held to be either a civil or revenue or a Criminal Court. If at all, he will be a Tribunal under the State Act. The Orissa Co-operative Societies Act does not state that the Assistant Registrar deciding disputes between the parties is a Court for the purpose of section 195. Consequently, the bar contained in section 195(1) of the Code of Criminal Procedure, 1973 does not apply and a Magistrate can take cognizance of the offence under section 467, Indian Penal Code, 1860 alleged to have been committed in respect of a document produced or given in evidence by a party to any proceeding before the Assistant Registrar, without a complaint in writing by the Assistant Registrar. [Raghunath Mohapatra v Satyabadi Panda, (1988) Cr LJ 1554 : (1988) 65 Cut LT 764 : 1988 (1) Ori LR 371 (Ori)].

Page 25 of 27 [s 195] Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evi....

The High Court can file complaint for offences under section 193, 342 Indian Penal Code, 1860. It is not barred by law. [Zahoor Ali Bagi v Registrar General High Court of Karnataka, 2007 Cr LJ (NOC) 850 : 2007 (5) AIR Kar R 232] [s 195.47] Subordination of Courts in the matter of complaint. [Sub-sections (1)(b) and (4)].— Sub-section (4) is intended to define subordination of Courts as used in sub- section (1)(b). As to subordination of public servants in sub-section (1)(a), see ante, section 195(4) does not speak of appeals which lie in the particular proceedings from which the order under section 340 has arisen; it speaks of a Court being subordinate to the Court to which appeals ordinarily lie from appealable decrees or sentences [Dipomal, AIR 1942 SC 98 ; Ratan, AIR 1930 A 407]. “Subordinate” does not bear its ordinary meaning. It is used as a term of art and has been given a special meaning [MS Sheriff v State of Madras, 1954 SCR 1144 : AIR 1954 SC 397 : 1954 Cr LJ 1019 ; see Kuldip Singh v State of Punjab, AIR 1956 SC 391 : 1956 Cr LJ 781 : 1956 SCR 125 (SC), where the question of the subordination of one Court to another has been discussed]. Addl. Dist Magistrate (judicial) (now Addl. Chief Judicial Magistrate) is not subordinate to High Court [Santokh Singh v Izhar Hussain, AIR 1973 SC 2190 : 1973 Cr LJ 1176 : (1973) 2 SCC 406 (SC)]. “Ordinarily lie” has reference to the Court to which appeals in the usual course lie as a matter of right [Anantram, 11 B 438; Ramayya, AIR 1916 M 1150]. “Ordinarily” indicates the normal course of jurisdiction [see Har Pd., 10 A 582] and so the Court which hears appeals only on transfer by a superior Court is not such a Court to which appeals ordinarily lie [Subbamma, 27 M 124; Ramcharan, 39 C 774]. Appeals in criminal cases (Ch 29), appeals in civil cases [Code of Civil Procedure, 1908 sections 96-106; orders 41-45].

The Court of Additional District Magistrate is not the Court to which appeals from Second class Magistrates ordinarily lie and so he cannot complain [Nazar Md, 19 L 188; Ramdin, 38 Cr LJ 97; Sivaswami, 1931 MWN 1194 ]. A Second Class Magistrate is not subordinate to a First Class Magistrate [Bhujanga Bhusan Majumdar v State, AIR 1957 Cal 63 : 1956 Cr LJ 398 : 59 Cal WN 604].

Appeals from order of Assistant Sessions Judge relating to complaint lie to the Sessions Judge [Chando Gangota v Madan Mandal, AIR 1946 Pat 435 : (1946) 47 Cr LJ 385 : 223 IC 223; Nagendra, AIR 1933 C 192]. A First Class Magistrate [Maturam, 1902 PR 7 ; Badiuddin, 47 B 102; Mafizuddi, 16 Cr LJ (C) 640; Sant Ram, 24 Cr LJ 913], or a District (Chief Judicial) Magistrate is subordinate to the Sessions Judge [Panchalam, 42 M 96; Pilalal, AIR 1929 N 97 : 30 Cr LJ 550, FB] as also to the Additional Sessions Judge [Sikandar, 44 B 877; Nishi, 14 Cr LJ (C) 195] but not to the Assistant Sessions Judge [Sikandar, supra]. An assistant Collector is subordinate to the District Judge [Shankar, 19 A 121]. Panchayati Court is subordinate to the District Judge and not to the District Magistrate [Chaiyan, AIR 1934 A 216; Saligram, AIR 1931 A 141].

As appeal from decision of a munsif ordinarily lies to the District Judge (though it is heard by a subordinate Judge on transfer) he is subordinate to the District Judge [Ram Ch, 39 C 774; Fauzdar, AIR 1934 P 366; Dulari, AIR 1933 P 19; see Hari, 40 C 37] and not to the Additional District Judge unless receiving of appeals is assigned to him under section 21(3), Civil Courts Act, 12 of 1887 [Chaturbhuj Ojha v King, AIR 1950 Pat 567 : 1950 Cr LJ 1568 : 31 Pat LT 73]. An appeal relating to complaint cannot also be transferred to a subordinate Judge [Medhi, 57 A 687]. When under any law or notification certain appeals from decrees of munsif lie to the subordinate Judge, the former becomes subordinate to the latter [Labhu 19 Cr LJ 975; Jwala, 27 Cr LJ 75; Rama Ch, 8 P 428; Narotam, AIR 1939 A 79].

Where the document is used in the Court of the Additional District Judge, the District Judge cannot order a complain to be made [Haridas, 1972 (2) Cal 456 : AIR 1943 C 103]. A subordinate Judge is subordinate to the District Judge although the suit in which the offence is committed involves a claim of over Rs 5,000 [Wadiro, AIR 1931 SC 163 ; Bhairo, 19 Cr LJ 631; Narayanan, AIR 1923 M 504; Ganesh, 20 Cr LJ 211; Srinivasa, 1933 MWN 1280 ; Palaniappa, AIR 1927 M 683] and not to the Additional District Judge [Harihar, AIR 1941 P 592; Inderdeo, AIR 1945 P 322]. Appeals in orders passed by subordinate Judge under section 47, Guardian and Wards Act [see Dipomal, AIR 1942 SC 98 ].

Page 26 of 27 [s 195] Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evi.... The question of subordination of one Court to another for the purpose of making compliant by the original Court or the appellate Court [section 340(2)] and appeals from orders making or refusing to make complaint (section 341) with special reference to the gradation of Courts under the Punjab Courts Act, 1918, discussed [Kuldip Singh v State of Punjab, AIR 1956 SC 391 : 1956 SCR 125 : 1956 Cr LJ 781 ].

Single Judge on original side is subordinate to the Division Bench on appellate side [Muniswamy, 45 M 928, FB; Ramjan, 33 Cal WN 329; Abdul Latift, 47 B 270]; so also, a single Judge sitting on the civil revisional side [Duraiswami, AIR 1944 M 181]. Where the High Court orders its Registrar to make a complaint under sections 193, 199, 211, Indian Penal Code, 1860, the Supreme Court will ordinarily consider whether a prima facie case has been made out and there is reasonable chance of conviction [Haridas v State of WB, AIR 1964 SC 1773 : 1964 (2) Cr LJ 737 (SC)]. Division Bench of the High Court is subordinate to the Supreme Court within section 195(4) [MS Sheriff vState of Madras, AIR 1954 SC 397 : 1954 Cr LJ 1019 : 1954 SCR 1114 (SC) reversing MS Sheriff v Govindan, AIR 1951 Mad 1060 : 1952 Cr LJ 61 : 64 Mad LW 929 : 1951 (2) Mad LJ 501]. [s 195.48] Where no appeal lies.— The latter part of sub-section (4) has been restricted to Civil Court. Where no appeal lies from its decisions it shall be deemed to be subordinate to the principal Court of ordinary original civil jurisdictions [see section 2(4), Code of Civil Procedure, 1908]. Thus, the Presidency Small Cause Court is subordinate to the High Court [Jamnadas, 36 M 138; Kalyanjee, 48 M 395] and the ProvincialSmall Cause Court or a Judge exercising the powers of a Small Cause Court to the District Judge [Nibaran, 21 Cal WN 948; Lalji, 4 PLJ 609, FB; Chidda, 39 A 657 FB; Abdul Ghani, AIR 1935 A 573; Bhag, AIR 1922 L 401; Panchu, AIR 1929 O 515; Lokman, AIR 1934 N 236]. Village munsif is subordinate to the District Judge [Sunder, 10 Cr LJ 437]; so also a Village Panchayat [Saligram, 32 Cr LJ 558; Chaiyan, 35 Cr LJ 1950; Sheo Narain, AIR 1942 O 439; see Ramaswami, AIR 1943 M 419]. [s 195.49] Proviso (a).— Where appeal from a Court’s decision (e.g. a subordinate Judge) lies in some cases to one Court and in others to a higher Court, the Court is subordinate to the former appellate Court [Venkata, 7 M 314; Lakshman, 2 B 481; Anantram, 11 B 438; see Ram Kr., 13 Cr LJ 498; Maduray, 22 C 487]. [s 195.50] Proviso (b).— As appeal may in some cases lie to the Civil Court and in others to the revenue Court and when it cannot be said in which Court appeal would ordinarily lie, subordination is to be determined by the nature of the case in connection with which the offence is alleged to have been committed. [s 195.51] Appeal and revision regarding complaint relating to offences in Section 195(1)(a).— A complaint relating to offences in section 195(1)(b) is appealable, but not a complaint relating to offences in section 195(1)(a), as it is not an offence relating to a proceeding before a “Court”. A complaint by a Returning officer under section 195(1)(a) is not appealable [Virindar Kumar Satyawadi v State of Punjab, 1955 (2) SCR 1013 : 1956 Cr LJ 326 : AIR 1956 SC 153 ; Maruda, AIR 1939 M 339]. Complaint by public servant under clause (a) is an administrative order and no appeal lies against his refusal to complain. Sub-section (2) is the only provision which gives a right of appeal in connection with cases covered by clause (a) [Buttan Modi v Manichandra Singh, AIR 1967 Pat 95 : 1967 Cr LJ 397 : 1966 BLJR 814 ]. There can be appeal against an order to file complaint by a public servant to the authority to which he is subordinate but there is no appeal against an order refusing to file complaint [Buttan, supra]. An appeal entertained by a District Judge against an order of a munsif refusing to complain under section 183, Indian Penal Code, 1860 is without jurisdiction [Bajrang, AIR 1937 P 31; Maruda, 40 Cr LJ 568; Bhoopram, AIR 1942 A 100]. But a refusal does not thereby become final as under section 195(1)(a) the public servant to whom the servant refusing is subordinate can make a complaint. So a District Judge may make a complaint under section 186, Indian Penal Code, 1860 after refusal by a subordinate Judge. Order is an administrative order against which no appeal or revision lies [Ramesh, 42 Cal WN 531]. No appeal lies [Yusuf, AIR 1931 A 630]. A complaint by a public servant under section 195(1)(a) is not a judicial act and so when a superior public servant directs its withdrawal under subsection (2), the High Court cannot interfere [Baba, 39 Cr LJ 445; Ramjanam, AIR 1942 C 307]. As no appeal lies, the only remedy is by way of revision [Money, AIR 1928 R 296]. [s 195.52] Order of Civil Court.— Where the order under section 340 Code of Criminal Procedure, 1973 is passed by a Civil Court (making

Page 27 of 27 [s 195] Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evi.... complaint to judicial Magistrate) appeal is maintainable before the District Court.—[Jose Joseph v Syndicate Bank, (1997) Cr LJ 1543 : 1997 (1) Ker LT 320 : 1997 (2) Cur Cr R 824 : 1997 Mad LJ (Cri) 447 (Ker)].

Appeal and revision regarding complaint relating to offences in section 195(1) (b).— See section 341 and notes. [s 195.53] Sub-section (4)— The Deputy Director of Income Tax is not an appellate forum to which appeal lie from any order or decision of Assistant Officer/Income Tax Officer within the meaning of section 195(4) of the Criminal Procedure Code, 1973. [Babita Lila v UOI, AIR 2016 SC 4160 : 2016 (8) Scale 453 ]. 1 [s 195A Procedure for witnesses in case of threatening, etc .— A witness or any other person may file a complaint in relation to an offence under section 195A of the Indian Penal Code (45 of 1860).]

CrPC (Amendment) Act, 2008 (5 of 2009).—This new provision has been inserted vide Code of Criminal Procedure, 1973 (Amendment) Act, 2008 to make provision for a witness or any other person on his behalf to file complaints in relation to an offence under section 195A of the Indian Penal Code. [vide Notes on clauses, clause 19].

The word “complaint” as mentioned under section 195A of the Code of Criminal Procedure cannot have a restricted meaning as defined under section 2(d) of the Code. The word “complaint” as mentioned under section 195A of Code of Criminal Procedure, 1973 cannot be construed in a narrow sense so as to not to include a police report. [Rebaka Vara Prasad v State of AP, 2012 (3) Andh LT (Cr) 197 : 2012 (2) Andh LD (Cr) 98].

2

Subs. by the Criminal Law (Amendment) Act, 2005 (2 of 2006), section 3, for the words “except on the complaint in writing of that Court, or of some other Court to which that Court is subordinate.” (w.e.f. 16 April 2006 vide Notification No. S.O. 523(E), dt. 12 April 2006).

1

Inserted by the Code of Criminal Procedure (Amendment) Act, 2008 (5 of 2009), section 17 (w.e.f. 31 December 2009).

End of Document

[s 196] Prosecution for offences against the State and for criminal conspiracy to commit such offence.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER XIV CONDITIONS REQUISITE FOR INITIATION OF PROCEEDINGS

The Code of Criminal Procedure, 1973 CHAPTER XIV CONDITIONS REQUISITE FOR INITIATION OF PROCEEDINGS [s 196] Prosecution for offences against the State and for criminal conspiracy to commit such offence.— No court shall take cognizance of— (a) any offence punishable under chapter VI or under section 153A, 2[section 295A or sub-section (1) of section 505] of the Indian Penal Code (45 of 1860), or (b) a criminal conspiracy to commit such offence, or (c) any such abetment, as is described in section 108A of the Indian Penal Code (45 of 1860), except with the previous sanction of the Central Government or of the State Government. 3[(1A)

No court shall take cognizance of—

(a) any offence punishable under section 153B or sub- section (2) or sub-section (3) of section 505 of the Indian Penal Code (45 of 1860), or (b) a criminal conspiracy to commit such offence, except with the previous sanction of the Central Government or of the State Government or of the District Magistrate.] (2) No court shall take cognizance of the offence of any criminal conspiracy punishable under section 120B of the Indian Penal Code (45 of 1860), other than a criminal conspiracy to commit 4[an offence] punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, unless the State Government or the District Magistrate has consented in writing to the initiation of the proceedings: Provided that where the criminal conspiracy is one to which the provisions of section 195 apply, no such consent shall be necessary. (3) The Central Government or the State Government may, before according sanction 5[under sub-section (1) or sub-section (1A) and the District Magistrate may, before according sanction under sub-section (1A)] and the State Government or the District Magistrate may, before giving consent under subsection (2), order a preliminary investigation by a police officer not being below the rank of Inspector, in which case such police officer shall have the powers referred to in sub-section (3) of section 155.

Page 2 of 9 [s 196] Prosecution for offences against the State and for criminal conspiracy to commit such offence.— [s 196.1] Changes.— Sub-sections (1), (2) and (3) correspond to the old sections 196, 196-A and 196-B respectively, redrafted and altered. [s 196.1.1] Material changes introduced are.— (1) In sub-section (1)—

(i)

substantive offences have been mentioned in clause (a) in which offence under section 127 of Indian Penal Code, 1860 (which alone withinchapter VI was excluded) has been included; all offences under chapter IX-A (which were included except section 171-F, so far as it relates to the offence of personation) have been excluded; offence under section 294-A (which was included) has also been excluded; and a new offence under section 153-B has been included.

(ii) the offences of criminal conspiracy to commit any of the offences [which was in clause (1) of the old section 196-A] has been placed in a new clause (b) while offence of abetment under section 108-A, Indian Penal Code, 1860 has been placed in a separate clause (c). (iii) Previous sanction of the Central or the State Government is now required instead of complaint made by order of, or under authority from, the State Government.

(2) In sub-section (2) which corresponds to sub-section (2) of the old section 196-A classification of criminal conspiracy under section 120-B in two groups and making a fine distinction in the manner of initiating proceedings, as existed in the old sub- section, has been done away with, the requirement of the consent in writing of the State Government or the District Magistrate being retained in the case of petty conspiracies only.

(3) In sub-section (3) which corresponds to the old section 196-B the Central Government, the State Government and the District Magistrate have been empowered to order preliminary investigation before allowing sanction or consent in writing, as the case may be, in terms of the previous sub-sections. [s 196.1.2] 1978 Amendment.— In sub-section (2), the words “an offence” have been substituted for “a cognizable offence” to remove the distinction between cognizable and non-cognizable offences. Hence if the object of conspiracy is to commit an offence (whether cognizable or non-cognizable) not punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, consent in writing would be essential, and accordingly the principles of decisions given below under sub-section (2) are to be read in the light of this change making a distinction between graver and lesser offences instead of cognizable and non-cognizable offences. [s 196.1.3] 1980 Amendment.— With effect from 23 September 1980 a new sub-section (1-A) was inserted empowering also District Magistrate, besides Central and State Governments to accord sanction for offences punishable under section 153-B and sub- sections (2) and (3) of section 505 of Indian Penal Code. [s 196.2] Object, scope and application of Section 196.— The object of section 196(1) of the Code of Criminal Procedure is to prevent unauthorized persons from intruding in matters of state by instituting prosecution and to secure that such prosecutions, for reasons of policy, shall only be instituted under the authority of Government. Further, the offences are of a serious and exceptional nature and deal with matters relating to public peace and tranquility with which the State Government is concerned. Therefore, provision has been made for obtaining prior sanction of the Government before cognizance is taken of any such offence. It is possible that in a given case the very filing of a prosecution, after tempers have cooled down, may generate fresh heat which could well be avoided by the Government by refusing to accord sanction. There is hence an underlying policy which is evident on a reading of the offences enumerated in section 196(1) in respect of which prior sanction is a must before cognizance of such offence can be taken. Further, under sub-section (3) of Section 196, it is laid down that before sanction is accorded, the State Government may order a preliminary investigation by a police officer. This is apparently to decide on the course to be adopted by the State Government in respect of any particular incident and is

Page 3 of 9 [s 196] Prosecution for offences against the State and for criminal conspiracy to commit such offence.— therefore a crucial step, which cannot be by passed. [State of Karnataka v K Rajashekara, 2010 Cr LJ 611 (614) (Kant) : 2010 (1) Kant LJ 47 ].

The protection under section 197 of the Code of Criminal Procedure is subject to the following limitation:

(1) The protection is available only when the alleged act done by the public servant is reasonably connected with the discharge of his official duty and is not merely a cloak for doing the objectionable act. (2) If in doing his official duty, he acted in excess of his duty, but there is reasonable connection between the act and the performance of the official duty, the excess will not be sufficient ground to deprive the public servant of protection. (3) The question is not as to the nature of the offence such as whether the alleged offence contained an element necessarily dependent upon the offender being a public servant, but whether it was committed by a public servant acting or purporting to act as such in the discharge of his official capacity. (4) Before section 197 can be invoked it must be shown that the official concerned was accused of an offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty. The act must fall within the scope and range of the official duties of the public servant concerned. It is the quality of the act, which is important and the protection of this section is available if the act falls within the scope and range of his official duty. (5) The act can be performed in discharge of his official duty as well as in dereliction thereof [Krishnendu Narayan Chowdhury v State of WB, 2008 Cr LJ 1691 (1696, 1697) (Cal) : 2008 (3) AICLR 141].

For reasons of policy, power has been reserved to the Government to determine whether offences against the State and the other offences specified in the section should be taken cognizance of. Prosecution can be launched only after sanction is issued by the Central or State Government. The object is to prevent unauthorised persons from intruding in matters of State [Bal Gangadhar, 22 B 112]. The section does not control the powers of a Magistrate but prevents the taking of cognizance of certain offences without a complaint (now previous sanction of Government) [Brahmanand, AIR 1939 A 682]. Where facts constituting the offences are not shown on the face of the sanction and there is no extraneous evidence to show that the facts were placed before the sanctioning authority, the sanction is invalid [Gokulchand Dwarkadas Morarka v The King, AIR 1948 PC 82 : 75 IA 30 : 52 Cal WN 325 : 1948 (1) Mad LJ 243 : 50 Bom LR 399 : (1948) 49 Cr LJ 261 ].

The sub-section does not mention abetment or attempt to commit the offences named as in section 195. But, it has been held that sanction under section 124-A of Indian Penal Code, 1860, will authorise prosecution under that section and section 114, Indian Penal Code, 1860 [Chidambaram, 32 M 3].

Chapter VI, Indian Penal Code, 1860 (offences against the State under sections 121 to 130; section 108-A (abetment in India of offences outside it), section 153-A (promoting enmity between classes); section 153-B (imputations, assertions prejudicial to national integration); section 295-A (outraging religious feelings); section 505 (statements conducing to public mischief).

For a private complaint under section 295-A obtaining of sanction of concerned Government is sine qua non [Shalibhadra Shah v Swami Krishna Bharati, 1981 Cr LJ 113 : (1980) 21 Guj LR 861 : 1980 CrLR 314 (Guj)]. Obtaining of prior sanction under section 196(1) is not violative of Articles 14 and 25 of Constitution [Shalibhadra, supra; Ramjilal Modi v State of UP, AIR 1957 SC 620 : 1957 Cr LJ 1006 : 1957 SCR 860 relied on)].

Page 4 of 9 [s 196] Prosecution for offences against the State and for criminal conspiracy to commit such offence.— Sanction of concerned Government, is not required immediately or recording of FIR for starting investigation of the case [Yashwant Varmlal Sanghvi v Sahdev Singh Dilubhazala, 2004 (4) Crimes 20 (Guj)].

The object of section 196, Code of Criminal Procedure, 1973 is to prevent unauthorised persons from intruding in matters of State by instituting prosecution and to secure that such prosecution for reasons of policy, shall only be instituted under the authority of the Government. Further the offences are of a serious and exceptional nature and deal the matters relating to public peace and tranquility with which the State Government is concerned [State of Karnataka v K Rajashekara, 2010 Cr LJ 611 (614) (Kant) : 2010 (1) Kant LJ 47 ]. [s 196.3] Concept of sanction.— Sanction is permission to prosecute granted by the authorities concerned. Complaint is to be made by the authority itself. Judicial discretion has to be exercised in granting sanction [Ramdas v KM Sen, AIR 1955 Cal 517 : 59 Cal WN 209 : 1955 Cr LJ 1340 : 1956 (2) LLJ 323 ]. Careful consideration of the evidence must precede the sanction [Jaswant Singh v State of Punjab, AIR 1958 SC 124 : 1958 Cr LJ 265 (SC)]. [s 196.4] Except with previous sanction.— There is an absolute bar against cognizance without sanction, [Daulatram v State of Punjab, AIR 1962 SC 206 : 1962 (2) Cr LJ 286 (SC)]. The Magistrate when taking cognizance of an offence must examine whether his power to take cognizance has been taken away ML Sethi v RP Kapur, AIR 1967 SC 528 : 1967 Cr LJ 528 (SC). The section is imperative and must be strictly complied with [Bhimajee, ILR 42 Bom 172; Chidambram, ILR 32 Mad 3].

The sanction of concerned Government is a sine qua non and no Magistrate can take cognizance of an offence under section 295, Indian Penal Code, 1860 unless order granting sanction.

No cognizance can be taken of offence under section 295-A of Indian Penal Code, 1860 without Government sanction [Avadh Srivastava v State of Rajasthan, (1997) 1 Crimes 6 Raj; Manoj Rai v State of MP, (1998) 4 Scale 414 ; Yashwant Varmlal Sanghvi v Sahdev Sinh Dilubhazala, 2004 (4) Crimes 20 (Guj)].

There is no bar under section 196(1-A) against registration of a criminal case or investigation by the police agency or submission of a report by the police on completion of investigation as contemplated under section 173, Code of Criminal Procedure, 1973. [State of Karnataka v Pastor P Raju, 4045 (4047) (SC) : AIR 2006 SC 2825 : 2006 (3) Crimes 203 : (2006) 3 SCC (Cri) 179 ].

There is no legal bar for taking cognizance for offence under section 504, Indian Penal Code, 1860. No sanction is required under section 196-A, Code of Criminal Procedure, 1973 [Swaraj Thackeray v State of Jharkhand, 2008 Cr LJ 3780 (3785) (Jhar) : 2008 (2) AIR Jhar R 869].

When FIR prima facie showed that the occurrence took place when the petitioner, who was working on probation, as sub-inspector of police, was discharging his official duty, it was held that, the order taking cognizance of offence was improper for want of sanction to prosecute [Kailash Chandra Sehty v State of Orissa, 2010 Cr LJ (NOC) 165 (Ori)].

Where the sanctioning authority, on consideration of entire material placed before him by the Administrative Department, found prima facie case against the accused and granted sanction, the sanction was held, proper [Jit Narain v State of Bihar, 2010 Cr LJ (NOC) 66 (Jhar)].

Holding of “trial” necessary means that it will follow after cognizance is taken by the Magistrate. Unless cognizance is taken, question of proceeding with the trial does not arise at all. Since the sanction has been granted for proceeding with the trial of the case, it necessarily means that the appropriate authority granted the sanction for the Magistrate to take cognizance of the offence and to proceed with the trial subsequently on the

Page 5 of 9 [s 196] Prosecution for offences against the State and for criminal conspiracy to commit such offence.— basis of the said cognizance. Simply because the word “cognizance” has not been incorporated in the sanction order, that cannot, in my considered opinion vitiate the trial [Abdullah Salafi v State of WB, 2007 Cr LJ 2029 (2031) : 2007 (3) AIR Jhar R (NOC) 968 (Cal)].

Policy of prior sanction.—

There is an underlying policy which is evident on a reading of the offences enumerated in section 196(1) in respect of which prior sanction is a must before cognizance of such offence can be taken. Further under subsection (3) of section 196 it is laid down that before sanction is accorded the State Government may order a preliminary investigation by a police officer [State of Karnataka v K Rajashekara, 2010 Cr LJ 611 (Kant)]. [s 196.5] Sanction of Government.— Sanction must be an act of the State Government or Central Government and not of a single member of such Government [Varadarajulu, 42 M 885]. The State Government means Governor acting on the advice of council of ministers or on the advice of individual minister to whom the department concerned has been allocated under the rules of business framed by the Governor. In the ultimate analysis, it may also mean a secretary to the Government to whom the transaction of that business has been delegated by the minister concerned by a standing order or otherwise in accordance with rules of business framed under clauses (2) and (3) of Article 166 of Constitution. Order should be in the name of the Governor and duly authenticated [Manmohan, AIR 1959 Punj 225 ]. A sanction in a telegram emanating from “Madras” is not valid without formal proof that it was the act of the Government collectively [Varadarajalu, supra]. [s 196.6] Form of sanction.— The sub-section does not prescribe any particular form in which sanction should be accorded—if written order is required—and that exact article (a case of sedition) in respect of which prosecution is to be made must be specified in the order [Bal Gangadhar, 22 B 112, 150; see Kishen, AIR 1923 L 333]. It has been held that sanction for offence under section 124-A does not justify conviction under section 153-A [Om Prakash Lalchand v Emperor, AIR 1948 Nag 71 : (1948) 49 Cr LJ 54 : 1947 Nag LJ 563 : ILR (1947) Nag 788 ; see U Uyam, AIR 1926 R 169; U Pathada, 26 Cr LJ 245]. In a later case, the Privy Council held that when sanction is given for prosecution under certain sections and the whole of the facts which would justify equally a charge under other sections are stated in the complaint, section 216(5) becomes operative and court may take cognizance of altered charges [HHB Gill v King Emperor, AIR 1947 FC 9 : (1947) 48 Cr LJ 155 : 51 Cal WN (FR) 1 : 1947 (1) Mad LJ 129 : 49 Bom LR 266 : 1946 FCR 123 ; concurred on this point in HHB Gill v The King, AIR 1948 PC 128 : (1948) 49 Cr LJ 503 : 75 IA 41 : 52 Cal WN 567 : 1948 (2) Mad LJ 6 : 50 Bom LR 487]. The charge need not follow the exact terms of the sanction, though it must not relate to an offence essentially different from that to which the sanction relates [Gokulchand Dwarkadas Morarka v The King, AIR 1948 PC 82 : (1948) 49 Cr LJ 261 : 75 IA 30 : 61 Mad LW 257 : 1948 (1) Mad LJ 243 : 52 Cal WN 325]. A sanction for certain named offences and for “such other offence or offences as may be disclosed in the evidence” covers prosecution for offences not expressly named [Madhusudan, 37 Cal WN 934]. A sanction for prosecution in the alternative under section 121-A, Indian Penal Code, 1860 is not improper [Kunhi, 1922 MWN 71 : 23 Cr LJ 203]. [s 196.7] Validity of sanction.— A sanction order to be valid must show on it that the sanctioning authority accorded the sanction after applying his mind to the materials appearing against the accused. The circumstances in the instant case go to show that the sanctioning authority put his signature in the sanction order mechanically and that is more fortified by the fact that the sanction order does not bear any date or the seal and it appears clearly that somebody else has struck off the word “Draft” from the words “Draft Sanction order” at some point of time. In these circumstances, the sanction is vitiated and consequently the taking of cognizance is also vitiated and is illegal [Jaleswar Dhar v State of Orissa, 1990 Cr LJ NOC 40 : 1989 OCR 390 (Ori) (J Das J)].

Merely because some inapplicable provision appears the sanction order, that would not show non-application of mind by the sanctioning authority [State (NCT of Delhi) v Navjot Sandhu, 2005 Cr LJ 3950 (SC) : AIR 2005 SC 3820 : 2005 (3) Crimes 87 : 2005 SCC (Cri) 1715 ]. In prosecution for offences, under sections 121, 122, 124, read with section 120-B, Indian Penal Code, 1860, sections 50, 2(1)(h), POTA for terrorists attack on the Parliament, the sanction accorded by Lt Governor of Delhi was held valid [State v Mohd Afzal, 2004 (1) Crimes 227 (Del)].

Page 6 of 9 [s 196] Prosecution for offences against the State and for criminal conspiracy to commit such offence.— It is not the law that the sanction order has to pen down in great detail mentioning all the evidences collected by the investigating agency. A sanction order need not to be a detailed one. It is sufficient if from a bare perusal of the sanction order it transpires that the sanctioning authority has applied his mind on the materials produced before him and has then granted the sanction [Om Prakash Singh v State of UP, 2008 Cr LJ 2968 (2971) (All) : 2008 (4) All LJ 65 : 2008 (61) All Cri C 769]. [s 196.8] Contents of sanction.— Sanction should be expressed with sufficient particularity and strict adherence to the language of the section [Apurba, 35 C 141]. It is immaterial whether or not all the facts on which the prosecution is to be made are stated in the sanction. It is sufficient if it is stated that the accused had committed an offence under a certain section of a certain Act and should be prosecuted [Nga Aung, AIR 1924 R 65; Maganlal v Emperor, AIR 1946 Nag 173 : (1946) 47 Cr LJ 851 : 1946 Nag LJ 139 ; Umayyathantagath, AIR 1922 M 126]. In a later Privy Council case, it has been held that though not essential it is plainly desirable that the facts should be referred to on the face of the sanction; but if it is not so shown, the prosecution must prove by extraneous evidence that those facts were placed before the sanctioning authority. Otherwise, the sanction is not valid [Gokulchand Dwarkdas Moraka v The King, AIR 1948 PC 82 , 84 : (1948) 49 Cr LJ 261 : 50 Bom LR 399 : 1948 All LJ 170 : 1948 Mad WN 292].

If the sanction contains the names of the printer, publisher, editor of the newspaper, the name of the newspaper, the offence committed and the section of the Penal Code and refers to “certain articles”, the fact that the “exact article” has not been specified does not make the sanction invalid [Bal Gangadhar, 22 B 112]. When name was not given but the accused was described as printer of a certain newspaper, the sanction was valid [Apurba, 35 C 141]. The crucial question is whether the prosecution has been launched with sanction [Bal Gangadhar, supra; Apurba, supra; Narayana, 25 Cr LJ 401]. [s 196.9] Proof of sanction.— Sanction must of course be proved like any other document. It need not be signed by the Governor, but may be signed by any accredited officer [Barindra, 37 C 467; Apurba, 35 C 141; Md Ozizullah, 26 Cal WN 878], e.g., the Chief Secretary [Apurba, supra] but not by another “for the Chief Secretary” [Md Ozizullah, supra], or Deputy Secretary Political DepartmentAssistant acquainted with Deputy Secretaries’ signature can prove it [State of Bihar v Ghulam Sarwar, AIR 1965 Pat 393 : 1965 (2) Cr LJ 401 : 1965 BLJR 613 ]. In an official communication from the Home Department to the district magistrate it was referred to that the Government was pleased to grant sanction to the prosecution of the appellant for certain offences as required by section 196; neither original order nor its copy was produced. It was held that a presumption would arise that sanction to which reference has been made in the document had in fact been accorded. Further, since the communication was an official one, a presumption would also arise that the official act to which reference has been made has been regularly performed. Thus, the above document placed on record prima facie met the requirement of section 196 [Tulsiram v State of UP, AIR 1963 SC 666 : 1963 (1) Cr LJ 623 (SC)]. [s 196.10] Burden of proof of validity of sanction.— If the facts constituting the offence charged are not shown on the face of the sanction, the prosecution must prove by extraneous evidence, that these facts were placed before the sanctioning authority. If there is no such evidence the sanction is invalid. It is plain that the Government cannot adequately discharge the obligation of deciding whether to give or withhold a sanction without a knowledge of the facts of the case [Gokulchand Dwarkadas Morarka v The King, AIR 1948 PC 82 , 84 : (1948) 49 Cr LJ 261 : 52 Cal WN 325 : 50 Bom LR 399]. The lacuna if any, in the sanction can be remedied in the course of trial by specific evidence in that behalf [MK Gopalan v State of MP, AIR 1954 SC 362 : 1954 Cr LJ 1012 (SC)]. [s 196.11] Subsequent sanction does not validate proceedings.— Sanction given after the filing of prosecution does not validate proceeding [Barindra, 37 C 467; Varadarajalu, 42 M 885; Venkataramaiah, AIR 1938 M 130]. Sanction constitutes a condition precedent to prosecute and confers jurisdiction. Defect in jurisdiction cannot be cured by section 465 [Gokulchand Dwarkadas Moraka v The King, AIR 1948 PC 82 : (1948) 49 Cr LJ 261 : 75 IA 30 : ILR (1948) Bom 316 : 1948 MWN 292 ; see Basdeo, AIR 1945 FC 16 : 1945 FCR 93 : 49 Cal WN 59 FB; Abdul Mian v The King, AIR 1951 Pat 513 : 1951 Cr LJ 710 (1)]. But for any error or irregularity in any sanction for the prosecution finding or sentence passed by a Trial Court is not reversible now by a court of appeal or revision unless in the opinion of the court a failure of justice has in fact been occasioned thereby, having regard to the fact whether the objection regarding the error or irregularity could and should have been raised at an earlier stage in the proceeding (section 465). Sanction is to

Page 7 of 9 [s 196] Prosecution for offences against the State and for criminal conspiracy to commit such offence.— be given before cognizance is taken [Baijnath Gupta v State of MP, AIR 1966 SC 220 : 1966 Cr LJ 179 (SC)]. Where sanction was not objected to at the trial, it is not open to challenge it in appeal on the ground that the Government granting it was not legally constituted [Pulin, 16 Cal WN 1105]. Whether sanction has been granted is a question of fact, and question of sanction should be raised from the very beginning in the Trial Court [Kanta Pd v Delhi Administration, AIR 1958 SC 350 : 1958 Cr LJ 698 : 1958 SCR 1218 (SC)]. [s 196.12] Several offences of which some require sanction others do not.— The fact that Government refused sanction for offence under section 122, Indian Penal Code, 1860 is no bar to prosecution for abetting dacoity where the offence was committed by the same act [Anant, 25 B 90]. Government must not be compelled to prosecute for an offence under section 121A, PC when they do not wish to do so [Vishindas, A 1944 SC 1 , FB]. To accord or refuse sanction is a matter for Government to consider— Court is not concerned [Matajog Dobey v HC Bhari, AIR 1956 SC 44 : 1956 Cr LJ 140 (SC)]. But, when there is a prosecution without sanction for an offence which requires sanction, the accused cannot be convicted for an offence which does not require sanction. The ultimate result of the trial cannot be looked at in order to see whether there has been legal cognizance [Abdul Mian v The King, AIR 1951 Pat 513 : 1951 Cr LJ 710 (1)]. [s 196.13] Sub-section (2).— Sub-section (2) provides a safeguard against vexatious prosecutions for the criminal conspiracies mentioned therein [Abdul Rahaman, AIR 1935 C 316]. It deals only with criminal conspiracy of certain class and not with abetment of, or an attempt to commit the offence [Bhikari, AIR 1934 P 561].

The consent necessary under sub-section (2) has to be obtained only to ensure that a charge of conspiracy is not launched unless the matter is of a sufficiently serious nature [Hiralal, 35 Cr LJ 714]. Under sub-section (2) it is only the existence of an order of consent by Government that enables a court to assume jurisdiction [Ali Miah, 54 C 155]. The jurisdiction to take cognizance of offence of conspiracy under section 120B, Indian Penal Code, 1860 depends under section 196(2) upon the object of the conspiracy. If the object is to commit an offence not punishable with death, imprisonment for life or rigorous imprisonment for a term of 2 years or upwards then consent in writing is essential.

There is a recognizable difference between the object of a conspiracy and the means adopted to realise it. If the object is not hit by section 196(2), no consent is necessary if that object is sought to be obtained by resort to non-cognizable (now lesser) offences [Ram Ch. AIR 1939 B 129 : 40 Cr LJ 579; Abdul Kader Saleh Mohomed v State, AIR 1964 Bom 133 : 1964 (1) Cr LJ 648 : 65 Bom LR 864 : 1964 Mah LJ (Notes) 95 ; Paresh Nath Koyal v King-Emperor, AIR 1947 Cal 32 : (1946) 47 Cr LJ 710 : 221 IC 638; Golam Rahman v The King, AIR 1950 Cal 66 : (1950) 51 Cr LJ 376 : 83 Cal LJ 397; Hanumantha, AIR 1934 M 88; Parti Venkata, 35 Cr LJ 631].

When the criminal conspiracy is to commit a cognizable offence (now any offence) punishable with death or imprisonment for 2 years or more, no consent is necessary [Golam Rahman, supra; Ramdas, AIR 1934 A 61; Ram Janam, AIR 1935 P 357; Chandra, AIR 1935 P 91]. No sanction is necessary under sub-section (2) when the object of conspiracy is to commit the offence of cheating (section 420, Indian Penal Code, 1860) but forgery of document and similar non-cognizable offences (now lesser offences) are also committed as merely steps taken by one or other of the accused for the purpose of effecting the main object of the conspiracy. It is necessary to keep in mind the difference between the object of conspiracy and the means adopted or steps taken for realising that object; and the object of conspiracy has to be determined not only by reference to the section of the penal enactment referred to in the charges, but on a reading of the charges themselves. Thus, a trial in the circumstances for offences under section 120B read with sections 467/471 (now lesser offences) and section 420, Indian Penal Code, 1860 without obtaining necessary consent is neither illegal nor void [Bhanwar Singh v State of Rajasthan, AIR 1968 SC 709 : 1968 Cr LJ 867 (SC)]. The conspiracy to commit an offence is distinct from the offence to do which the conspiracy is entered into. If that offence does not require consent in writing, though the offence of conspiracy does, and consent is not obtained, the court can proceed with the trial of the substantive offence, as if there is no charge of conspiracy. Where the accused was charged under section 120B and charged for offences under sections 409 and 477A, Indian Penal Code, 1860 alleged to have been committed in pursuance of the conspiracy, the fact that consent was not obtained in respect of the offence under section 120B did not vitiate the trial on substantive charges [Madanlal v State of Punjab, AIR 1967 SC 1590 : 1967 Cr LJ 1401 (SC)].

Page 8 of 9 [s 196] Prosecution for offences against the State and for criminal conspiracy to commit such offence.— Sub-section (2) only renders consent necessary for criminal conspiracy punishable under section 120B, Indian Penal Code, 1860, but it does not alter the law that a prosecution for abetment by way of conspiracy punishable under section 109, Indian Penal Code, 1860 requires no consent [Abdul Salim, 26 Cal WN 680 : AIR 1922 C 107; Saurendra Mohan Basu v Saroj Ranjan Sarkar, AIR 1961 Cal 461 : 1961 (2) Cr LJ 204 FB; Abdul Rahman, AIR 1925 R 296; Md Bachal, AIR 1934 SC 4 ; Amarlal, AIR 1945 SC 51 ]. Thus, where several persons were charged with forgery and abetment thereof, though it is alleged that they conspired together, the prosecution is not bound to make a charge under section 120B, Indian Penal Code, 1860 so as to attract section 196(2) [Pir Muindin, AIR 1944 SC 225 ]. Only where the charge is of conspiracy pure and simple whether to commit any non-cognizable offence or any cognizable offence (now any offence) punishable for a term of imprisonment of less than two years previous consent is necessary [Sourendra, supra]. On appeal to the Supreme Court the majority did not think it necessary to express any opinion on the applicability of section 196(2) to the case, but Das, J, was in favour of affirming the view of the Special Bench that facts disclosing an abetment by conspiracy of the offence of forgery, no consent or sanction is necessary under section 196(2) [Pramatha Nath Taluqdar v Saroj Ranjan Sarkar, AIR 1962 SC 876 : 1962 (1) Cr LJ 770 : 1962 Supp (2), SCR 207]. When the offence primarily and essentially alleged in the charge- sheet submitted to the Magistrate was one of abetment of forgery under sections 468 and 471, Indian Penal Code, 1860 and of false impersonation under section 419 read with section 109, if the Magistrate ultimately drew up charges which included offence under section 120B, the object of which was to forge the passport, an offence under section 467, at the time of passing the committal order considering that the charge under section 120B, Indian Penal Code, 1860 was the more appropriate change and not a change under section 109, PC, it was held that the Magistrate took cognizance of the offence of abetment of an offence of forgery and impersonation and not of the offence of criminal conspiracy, and therefore, section 196(2) did not apply [Darshan Singh Ram Kishan v State of Maharashtra, AIR 1971 SC 2372 : 1971 Cr LJ 1697 : (1971) 2 SCC 654 (SC)]. Where the accused is summoned under section 120B, Indian Penal Code, 1860 and other sections and the facts disclosed in the evidence show prima facie case only under section 120B then clearly the proceeding initiated would be void ab initio if there is no consent; but if the facts show a prima facie case under section 109, Indian Penal Code, 1860 the proceedings would be competent although the accused was summoned under the wrong sections [Biroo Sardar, AIR 1925 C 579 : 26 Cr LJ 302]. See also the following heading. [s 196.14] When consent is or is not necessary.— There is a recognisable difference between the object of a conspiracy and the means adopted to realise it. Consent is not necessary if the object is sought to be attained by resorting to non-cognizable (now lesser) offences [S Ramaswami Iyer v State of Madras, AIR 1955 NUC 78 : 1955 Cr LJ 175 (3) : 1954 (2) Mad LJ 578]. No consent is necessary when the object of criminal conspiracy is cheating by personation under section 419, Indian Penal Code, 1860 and the accused are also charged with other non-cognizable (now lesser) offences [Yashpal Mittal v State of Punjab, AIR 1977 SC 2433 : 1978 Cr LJ 189 : (1977) 4 SCC 540 (SC)]. Cognizance of distinct non-cognizable (now lesser) offences committed in pursuance of criminal conspiracy and not of an offence of criminal conspiracy to commit such offences punishable under section 120B, Indian Penal Code, 1860, does not require consent [Sri Paul Oswal, 79 Cal WN 357].

Where the charge was under section 404 read with section 120B, Indian Penal Code, 1860 and it was found that there was no consent the case should proceed only under section 404 [Sukumar, 25 Cal WN 357]. The prosecution cannot be compelled to get charges framed, which require consent [Chandra, AIR 1935 P 91].

The fact that the accused might have been charged with an offence for which consent is required cannot lead to the inference that they should not be tried for offences about which no consent is required [Amrita, 42 C 957]. Where the accused was charged under sections 120B/467 and 467/109, Indian Penal Code, 1860 and it was afterwards discovered that there was no consent, the legal consequence is as if the charge under sections 120B/467 had never been framed and accused can be convicted under sections 467/109, Indian Penal Code, 1860 [Syed Yawar, 44 Cal WN 474]. Where accused was charged under sections 120B, 161, 162 and 163, Indian Penal Code, 1860 but consent was obtained in respect of offences under sections 120B and sections 162 and 163, conviction under sections 120B and 161 can be maintained [Gurbachan Singh v State, AIR 1970 Del 102 : 1970 Cr LJ 674 : ILR 1969 Del 748 ]. Where a trial is held without consent of an offence which requires consent, it cannot be subsequently validated by adding charges which do not require consent [Abdul Rahman, AIR 1925 R 269].

Page 9 of 9 [s 196] Prosecution for offences against the State and for criminal conspiracy to commit such offence.— Consent is not necessary for prosecution under the Prevention of Corruption Act, 1988 when the offence under sections 5(2) and 5(1)(d) of the Prevention of Corruption Act, 1947 is punishable with imprisonment up to seven years [Nar Bahadur Bhandari., 2003 Cr LJ 2799 (Sikk)]. [s 196.15] Proviso.— The proviso lays down that consent for prosecution for criminal conspiracy to commit an offence punishable with a term of imprisonment for less than two years, to which the provisions of section 195 apply, shall not be necessary. For prosecution for criminal conspiracy to commit the offence of fraudulently using as genuine a forged document or dishonestly making a false claim, consent is not necessary where the court concerned makes complaint in respect of the offence under section 195(1)(b)(iii) [Kali, 50 C 461 : AIR 1924 C 53; see Lakshmichand, AIR 1947 SC 49 ]. [s 196.16] Whether subsequent consent validates proceedings.— See “Subsequent sanctions does not validate proceedings” above. In some cases the view taken was that consent obtained after initiation of proceedings is an irregularity not vitiating the trial [Abdul Rahman, AIR 1935 C 316; Ali Mia, 54 C 155]. But, the other view is that if proceedings are taken without consent they are illegal [Haricharan, 12 P 353]. Where no objection was taken as to absence of consent under sub-section (2), a conviction is not illegal merely because consent was not taken before prosecution started [Hanif, AIR 1932 C 786]. [s 196.17] Sub-section (3).— In order that cases under sub-sections (1) and (2) may be investigated by the police before sanction and consent in writing are accorded, sub- section (3) empowers the Government and the District Magistrate to order preliminary investigation by the police.

2

Subs. by the Code of Criminal Procedure (Amendment) Act, 1980 (63 of 1980), section 3(a) (w.e.f. 23 September 1980).

3

Inserted by the Code of Criminal Procedure (Amendment) Act, 1980 (63 of 1980), section 3(b) (w.e.f. 23 September 1980).

4 5

Substituted by the Code of Criminal Procedure (Amendment) Act, 1978 (45 of 1978), section 16. Substituted by the Code of Criminal Procedure (Amendment) Act, 1980 (63 of 1980), section 3(c) (w.e.f. 23 September 1980).

End of Document

[s 197] Prosecution of Judges and public servants.— Sarkar The Code of Criminal Procedure, 12th ed S C Sarkar, P C Sarkar and Sudipto SarkarDr H R Jhingta

Sarkar The Code of Criminal Procedure, 12th ed > Sarkar The Code of Criminal Procedure, 12th ed > Volume 1 > The Code of Criminal Procedure, 1973 > CHAPTER XIV CONDITIONS REQUISITE FOR INITIATION OF PROCEEDINGS

The Code of Criminal Procedure, 1973 CHAPTER XIV CONDITIONS REQUISITE FOR INITIATION OF PROCEEDINGS [s 197] Prosecution of Judges and public servants.— (1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no court shall take cognizance of such offence except with the previous sanction 6[save as otherwise provided in the Lokpal and Lokayuktas Act, 2013]— (a) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government; (b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government. 7[Provided

that where the alleged offence was committed by a person referred to in clause (b) during the period while a Proclamation issued under clause (1) of Article 356 of the Constitution was in force in a State, clause (b) will apply as if for the expression “State Government” occurring therein, the expression “Central Government” were substituted;] 8[Explanation.—

For the removal of doubts it is hereby declared that no sanction shall be required in case of public servant accused of any offence alleged to have been committed under section 166A, section 166B, section 354, section 354A, section 354B, section 354C, section 354D, section 370, section 375, section 376, section 376A, section 376C, section 376D or section 509 of the Indian Penal Code (45 of 1860).] (2) No court shall take cognizance of any offence alleged to have been committed by any member of the Armed Forces of the Union while acting or purporting to act in the discharge of his official duty, except with the previous sanction of the Central Government. (3) The State Government may, by notification, direct that the provisions of sub-section (2) shall apply to such class or category of the members of the Forces charged with the maintenance of public order as may be specified therein, wherever they may be serving, and thereupon the provisions of that subsection will apply as if for the expression “Central Government” occurring therein, the expression “State Government” were substituted. 9[(3A) Notwithstanding anything contained in sub-section (3), no court shall take cognizance of any offence, alleged to have been committed by any member of the Forces charged with the maintenance of public order in a State while acting or purporting to act in the discharge of his official duty during the

Page 2 of 39 [s 197] Prosecution of Judges and public servants.— period while a Proclamation issued under clause (1) of Article 356 of the Constitution was in force therein, except with the previous sanction of the Central Government. (3B) Notwithstanding anything to the contrary contained in this Code or any other law, it is hereby declared that any sanction accorded by the State Government or any cognizance taken by a court upon such sanction, during the period commencing on the 20th day of August, 1991 and ending with the date immediately preceding the date on which the Code of Criminal Procedure (Amendment) Act, 1991, receives the assent of the President, with respect to an offence alleged to have been committed during the period while a Proclamation issued under clause (1) of Article 356 of the Constitution was in force in the State, shall be invalid and it shall be competent for the Central Government in such matter to accord sanction and for the court to take cognizance thereon.] (4) The Central Government or the State Government, as the case may be, may determine the person by whom, the manner in which, and the offence or offences for which, the prosecution of such Judge, Magistrate or public servant is to be conducted, and may specify the court before which the trial is to be held. [s 197.1] STATE AMENDMENTS IN SECTION 197 Assam.—The following amendments were made by Assam (Presi.) Act 3 of 1980, section 3 (with effect from 5 June 1980).

Section 197.—In its application to State of Assam for section 197(3) substitute the following:—

(3) The State Government may, by notification, direct that the provisions of sub-section (2) shall apply,—

(a) to such class or category of the members of the forces charged with the maintenance of public order, or (b) to such class or category of other public servants (not being persons to whom the provisions of subsection (1) or sub-section (2) apply) charge with the maintenance of public order,

as may be specified in the notification, wherever they may be serving, and thereupon the provisions of subsection (2) shall apply as if for the expression “Central Government” occurring therein, the expression “State Government” was substituted.

Maharashtra.— The following amendments were made by Maharashtra. Act 60 of 1981, section 2 (with effect from 5 October 1981).

Section 197-A.—In its application to the State of Maharashtra after section 197, section 197-A inserted:—

Section 197-A.—Prosecution of Commissioner or Receiver appointed by Civil Court.—

When any person who is a Commissioner or Receiver appointed by a court under the provisions of the Code of Civil Procedure, 1908, is accused at any offence alleged to have been committed by him while acting or purporting to act in the discharge of his functions as Commissioner or Receiver, no court shall take cognizance of such offence, except with the previous sanction of the court, which appointed such person as Commissioner or Receiver as the case may be. COMMENTS [s 197.2] Changes.— Section 197 corresponds to the old section 197 with the following changes:—

Page 3 of 39 [s 197] Prosecution of Judges and public servants.—

(1) In sub-section (1) words “or was” before “a Judge” have been inserted, after the words “within the meaning of section 19 of the Indian Penal Code” have been omitted and the words “the Government” have been substituted for “a State Government or the Central Government”. (2) Clauses (a) and (b) has been altered. (3) Sub-sections (2) and (3) have been newly inserted. (4) Old sub-section (2) has been renumbered sub-section (4).

The changes introduced are:

(1) Sanction would now be necessary in respect of official acts of public servants even after their retirement. (2) Protection of the sanction has been extended to members of the Armed Forces of the Union and to such categories of members of the Forces or the States as the State Government may specify by notification in this behalf. [s 197.2.1] Criminal Law (Amendment) Act, 2013 .— This Amendment Act has been enacted on the recommendation of the Justice JS Verma Committee. The “explanation” inserted after sub-section (1) of section 197 seeks to do away with the requirement of sanction for prosecuting a public servant for offences alleged to have been committed by him under the sections enumerated in the explanation. Thus, a public servant who commits sexual offences or offences under section 166A and section 166B, Indian Penal Code, 1860 cannot claim the protection of sanction. [s 197.2.2] Lokpal and Lokayuktas Act, 2013 (1 of 2014). — The words “save as otherwise provided in the Lokpal and Lokayuktas Act, 2013” have been inserted in para 1 of section 197(1) of the Code. [s 197.3] Scope and application of section 197.— The section does not extend its protective cover to every act or omission done by a public servant in service but restricts its scope of operation to only those acts or omissions which are done by a public servant in discharge of official duty [State of UP v Paras Nath Singh, 2009 Cr LJ 3069 (3071) (SC) ].

When it is prima facie found that the accused was charged had reasonable connection with discharge of his duty, then the act must be held as official to which applicability of section 197 of the Code cannot be disputed [State of UP v Paras Nath Singh, 2009 Cr LJ 3069 (3071) (SC)]. The object is to protect judges and other public servants against irresponsible, frivolous or vexatious proceedings for acts done in discharge of official duty and to see that no prosecution is started unless there is some foundation for the charge brought [Nur Ahmmed, 39 Cal WN 20, 25; Patil, AIR 1937 N 293; State Govt. MP v Hifzul Rahman, AIR 1952 Nag 12 : 1952 Cr LJ 98 : 1952 Nag LJ 13 : ILR (1951) Nag 764 ; Major J. Phillips v State, AIR 1957 Cal 25 : 1957 Cr LJ 54 ; Afzalur, 1943 FCR 7 , 12 : AIR 1943 FC 18 ; Chari. R.R. v State of UP, AIR 1962 SC 1573 , 1581 : 1962 (2) Cr LJ 510 : 1963 (1) SCR 121 ] and to secure the well-considered opinion of a superior authority before prosecution [Hanmant, AIR 1929 B 375]. In other words, the appropriate authorities must be satisfied that there is a prima facie case for starting the prosecution and this prima facie satisfaction has been imposed as a safeguard before the actual prosecution commences [Chari, supra]. The intention is not to put a wall round public servants, but to enable them to perform their duties fearlessly by protecting them from vexatious, mala fide, or false prosecutions for acts done in the performance of duties [S Banerjee v State, AIR 1951 Cal 388 ]. The policy is

Page 4 of 39 [s 197] Prosecution of Judges and public servants.— not to set an official above the common law. If he commits a common offence he has not peculiar privilege. But if one of his official acts is alleged to be an offence, no prosecution will be allowed without sanction for the obvious reason that otherwise official action would be beset by private prosecutions, judges would be charged with defamation, policemen with wrongful restraint etc. [Kamisetty, 50 M 754]. The section is mandatory as it is the foundation of the court’s jurisdiction [Arjan, AIR 1939 L 479]. The special protection provided under section 197 should be strictly construed [Mukunda Baral v Godavaris Misra, 1980 Cr LJ 1215 : (1980) 49 Cut LT 83 (Ori)]. No protection has been granted to the public servant if the act complained is not in connection with the discharge of his duty or in exercise of his duty [PP Unnikrishnan v Puthyottil Ahkulty, AIR 2000 SC 2952 : (2000) 8 SCC 131 : 2000 (3) Crimes 209 (SC)]. Protection of Judge against criminal and civil liability (see section 77 of the Indian Penal Code, 1860 and Act, 18 of 1850).

In order to apply the bar of section 197, Code of Criminal Procedure, 1973, each case has to be considered in its own fact situation in order to arrive at a finding as to whether the protection of section 197, Code of Criminal Procedure, 1973 could be given to the public servant [Hamidbhai Azambhai Malik v State of Gujarat, 2009 Cr LJ 1378 : (2009) 3 SCC 403 (402) : (2009) 2 SCC (Cri) 126 ].

Demand for illegal gratification is not an official act and does not fall under section 197, Code of Criminal Procedure, 1973. However, sanction may be necessary under the Prevention of Corruption Act.—[Peerzada Mohd Muzaffar v Ab Rashid Rather, (1996) Cr LJ 1028 : 1996 (2) Rec Cr R 139 (J&K)].

It is no part of the duty of a public servant, while discharging his official duties, to enter into a criminal conspiracy or to indulge in criminal misconduct. Want of sanction under section 197 is, therefore, no bar [State of UP v Paras Nath, 2009 Cr LJ 3069 (3071) (SC) : (2009) 6 SCC 372 ]. [s 197.4] Object of section 197— The basic object of section 197 of the Code is to protect public servants from malicious or vexatious prosecution, but, it cannot be treated as a shield to protect corrupt officials. [Inspector of Police v Battenapatla Venkata Ratnam, AIR 2015 SC 2403 : (2015) 2 Mad LJ (Cr) 328]. [s 197.5] Sanction with application of mind.— (a) The prosecution must send the entire relevant record to the sanctioning authority including the FIR, disclosure statements, statements of witnesses, recovery memos, draft charge sheet and all other relevant material. The record so sent should also contain the material/document, if any, which may tilt the balance in favour of the accused and on the basis of which, the competent authority may refuse sanction; (b) The authority itself has to do complete and conscious scrutiny of the whole record so produced by the prosecution independently applying its mind and taking into consideration all the relevant facts before grant of sanction while discharging its duty to give or withhold the sanction; (c) The power to grant sanction is to be exercised strictly keeping in mind the public interest and the protection available to the accused against whom the sanction is sought; (d) The order of sanction should make it evident that the authority had been aware of all relevant facts/materials and had applied its mind to all the relevant material and (e) In every individual case, the prosecution has to establish and satisfy the court by leading evidence that the entire relevant facts had been placed before the sanctioning authority and the authority had applied its mind on the same and that the sanction had been granted in accordance with law [CBI v Ashok Kumar Aggarwal, AIR 2014 SC 827 : 2014 Cr LJ 930 (SC)].

The accused was holding the post of the Additional Secretary to the Government of MP in housing and environment department. There was a finding of the Lokayaukta that he had caused loss to the state to the tune of crores of rupees. The order of sanction clearly mentioned the fact that the accused was involved in a criminal conspiracy. Facts were given and reasons were specified in the order of sanction. This showed full application of mind. The sanction was held to be properly granted. The fact that the sanction for prosecution of two Ministers involved in the same conspiracy was quashed was on some different grounds was of no consequence as their case stood on different footing [RD Aherwar v Special Police Establishment, 2003 Cr LJ 2616 : 2003 (1) MPLJ 203 ].

All the relevant documents were produced before the competent authority for obtaining sanction, but no

Page 5 of 39 [s 197] Prosecution of Judges and public servants.— sanction was accorded. For prosecuting the accused under sections 218 and 467, Indian Penal Code, 1860 and on the same facts after considering the relevant documents a para in sanction order was added without assigning the reason that earlier this document was not made available to him. Thus the later order according the sanction cannot be said to be a legal one which can be said to be issued with due application of mind but is a mechanical order passed by the competent authority. [Shri Dan v State of Rajasthan, 2011 Cr LJ 2239 (2242) (Raj)].

It is true that the Government in the matter of grant or refusal of sanction exercises statutory power, but that would not mean that the power once exercised cannot be exercised again or at a subsequent stage in absence of express power of review. However, the power of review is not unbridled or unrestricted. Therefore, once the statutory power under section 197 of the Code has been exercised by the competent authority, it is not permissible for the sanctioning authority to review or reconsider the same on the same materials. Because unrestricted power of review may not bring finality to such exercise. The opinion on the same materials, thus, may keep on changing and there may not be an end to such statutory exercise [State of HP v Nishant Sareen, AIR 2011 SC 404 : (2010) 14 SCC 527 : (2011) 3 SCC (Cri) 836 relying on State of Punjab v Mohammed Iqbal Bhatti, JT 2009 (13) SC 180 : 2010 AIR SCW 1186].

In a case of complaint against the collector and other government functionaries for offences of dacoity and forgery, it was held by the Supreme Court that there was no material to suggest even a prima facie case against the accused persons and therefore there was no ground to interfere with the decision of the State Government refusing to accord sanction [Harshdeep Singh v State of Madhya Pradesh, AIR 2012 SC 1751 : (2012) 1 SCC 748 : (2012) 1 SCC (Cri) 684 ].

Grant or refusal of sanction for prosecution is not a quasi-judicial function. Therefore, the competent authority is not required to hear the person for whose prosecution sanction is sought before taking a decision in the matter. What is required to be seen by the Competent Authority is whether the facts placed before it prima facie disclose commission of an offence by such public servant. If the Competent Authority is satisfied that the material placed before it is sufficient for prosecution of the public servant, then it is required to grant sanction, otherwise it can refuse sanction [Dr Subramanian Swamy v Dr Manmohan Singh, AIR 2012 SC 1185 : (2012) 3 SCC 64 : (2012) 1 SCC (Cri) 1041 ].

In a case relating to unprovoked firing by police officials on three persons sitting in a Maruti car at Connaught Place, Delhi which resulted in the death of two persons sitting in the car, the Lt Governor of Delhi accorded sanction to prosecute the police officers for the murder. At the time of granting sanction only the investigation report and the draft sanction order had been put up before the Lt Governor. However, from a reading of the investigation report it was clear that the same refers to the entire evidence collected in the matter. It was held by the Supreme Court that sanction cannot be said to be given mechanically [Satyavir Singh Rathi v State through CBI, AIR 2011 SC 1748 : (2011) 6 SCC 1 : (2011)2 SCC (Cri) 782 ].

If the prosecution is simply vexatious then the sanction for prosecution shall not be granted. That is one of the main consideration to be borne in mind by the competent authority while considering whether the sanction is to be granted or not [Sanjaysinh Ramrao Chavan v Dattatray Gulabrao Phalke, AIR 2015 SC (Supp) 127 : (2015) 3 SCC 123 : (2015) 1 Mad LJ (Cr) 308]. [s 197.6] Conditions for operation of section.— Before invoking the section two conditions must be satisfied: that “(1) the public servant is removable from office either by the Union Government or a State Government and not by any lower authority; and (2) he is accused of an offence alleged to have been committed while acting or purporting to act in the discharge of his official duty [S Kuppuswami Rao v The King, AIR 1949 FC 1 : (1948) 49 Cr LJ 625 : 1947 FCR 180 : 52 Cal WN 18 : 1948 (1) Mad LJ 103].

The legislative mandate engrafted in sub-section (1) of Section 197 debarring a court from taking cognizance of an offence except with a previous sanction of the concerned Government in a case where the acts complained of are alleged to have been committed by public servant in discharge of his official duty or purporting to be in

Page 6 of 39 [s 197] Prosecution of Judges and public servants.— the discharge of his official duty and such public servant is not removable from his office save by or with the sanction of the Government touches the jurisdiction of the court itself. [Suresh Kumar Bhikamchand Jain v Pandey Ajay Bhushan, 1998 Cr LJ 1242 (SC) : AIR 1998 SC 1524 : (1998) 1 SCC 203 .

The legislative mandate engrafted in sub-section (1) of Section 197 is a prohibition imposed by the statute from taking cognizance. For invoking protection under section 197 the acts of the accused complained of, must be such that the same cannot be separated from the discharge of official duty, but if there was no reasonable connection between them and the performance of those duties, and the official status furnishes only the occasion or opportunity for the acts, then no sanction would be required [P.K. Pradhan v State, AIR 2001 SC 2547 : (2001) 6 SCC 704 : 2001 (3) Crimes 323 ; see Raj Kishore v Kamleshwar, AIR 2002 SC 2861 : 2002 Cr LJ 3780 : (2002) 6 SCC 543 : 2002 SCC (Cri) 1423 ; See also Rizwan Ahmed v Jammal Patel, AIR 2001 SC 2198 : 2001 Cr LJ 2897 : (2001) 5 SCC 7 ]. The discrimination among public servants based upon a rational classification, does not offend against Article 14 of the Constitution [Matajog Dobey v H.C. Bhari, AIR 1956 SC 44 : 1956 Cr LJ 140 : 1955 (2) SCR 925 ; Ghanairam Pachhuram v State, AIR 1954 Nag 265 : 1954 Cr LJ 1367 : 1954 Nag LJ 534 : ILR (1954) Nag 661 ]. Cf the words in section 270 (1) Government of India Act which have precisely the same connotation as the words in section 197 (1) [HHB Gill v The King, AIR 1948 PC 128 : 75 IA 41 : 52 Cal WN 567 : 1948 (2) Mad LJ 6; see also section 80, Code of Civil Procedure, 1908].

The word “alleged” in sub-section (1) qualifies the word “offence” and not the expression “acting or purporting...duty” [Durga Prasad Khosla v RA Rahmani, AIR 1965 All 208 : 1965 (1) Cr LJ 532 ].

Immunity from prosecution without sanction extends only to acts which can be shown to be done in discharge of official duty or to purport to be done in such discharge; but an offence arising out of abuse of official position by an act not purporting to be official does not require sanction [Lumbhardhar Zutshi v Emperor, AIR 1948 Bom 79 : (1948) 49 Cr LJ 4 : 49 Bom LR 609; Sakuntala Bai v Venkatakrishna Reddi, AIR 1952 Mad 667 : 1952 Cr LJ 1295 : 1952 (1) Mad LJ 646 : 65 Mad LW 470; see post; “While acting or purporting etc.”]. The words “acting or purporting to act” includes illegal omission by virtue of section 2(n) and section 2(y) [Captain Shankarrao Mohite v Burjor D Engineer, AIR 1962 Bom 198 : 1962 (2) Cr LJ 320 : 64 Bom LR 130 : 1962 Nag LJ 196 ].

Contempt proceedings are not in connection with any offence and section 197 does not apply [State v CML Bhatnagar, AIR 1952 All 56 : 1952 Cr LJ 223 : 1951 All LJ 663 : 1952 All WR 41; Jai Prakash Beni Pershad v Ram Sarup, AIR 1958 Punj 471 : 1958 Cr LJ 1529 : 60 Punj LR 624]. No sanction is necessary for issue of warrant for extradition of a public servant for enquiry into certain offences. The necessity of sanction, if any, would arise when prosecution is instituted [Ram Babu v Rex, AIR 1950 All 342 : (1950) 51 Cr LJ 947 ]. Sanction is necessary for prosecution of Indian public servant alleged to have committed an offence beyond India [Sasadhar, 35 Cal WN 782; see in this connexion section 188]. Section 197 is inconsistent with Criminal Law Amendment Act, 1943 [Huntley, AIR 1944 P 378]. No sanction is necessary for prosecution of offence under section 168, Indian Penal Code, 1860 [Dullomiya, AIR 1932 N 133]. Section 197 does not apply to Khasi and Jaintia Hill District [U Ram Latu v State, AIR 1957 Ass 125 : 1957 Cr LJ 832 ].

Where a public servant is prosecuted simultaneously for more than one offence and if any offence out of them requires sanction, then without prior sanction of that offence the Magistrate cannot take cognizance of all the offences and try [Pawan Kumar v Ruldu Ram, 1983 Cr LJ 180 : 1982 Cr Cr C 541 (P&H); Prabhakar v Sinari Shankar Anant Verlekar, AIR 1969 SC 686 : 1969 Cr LJ 1057 and Bhagwan Prasad Srivastava v NP Misra, AIR 1970 SC 1661 : 1970 Cr LJ 1401 : (1970) 2 SCC 56 (SC) relied on].

When police officer committed trespass into flour mill of complainant by breaking open lock and removing signboard and motor, such actions do not fall within scope of section 197 [State of Maharashtra, 1990 (1) Crimes 203 (Bom)].

Criminal prosecution against employee cannot be allowed to proceed without sanction under section 197 as he was a public servant [Subrato Saha, 1990 (1) Crimes 8 (Pat)].

Page 7 of 39 [s 197] Prosecution of Judges and public servants.— Supreme Court cannot look into the adequacy or inadequacy of the material before the sanctioning authority and cannot sit as a court of appeal over the sanction orders. Merely because some of the material could not be proved, sanction order would not vitiate [R Sundarajan v State by DSP, SPE, CBI, Chennai, (2007) 1 Mad LJ 253 (SC)].

Prosecution against a Municipal Commissioner alleged to have misappropriated public money causing loss to municipality, without sanction of State Government liable to be quashed [Chapala Vijayakumar v State of AP, 2007 Cr LJ NOC 6 (AP) . [s 197.7] Departmental Rules.— Departmental rules prescribe the requirement of sanction cannot bind Criminal Courts [State of Punjab v Raj Kumar, AIR 1988 SC 805 : 1988 Cr LJ 914 : (1988) 1 SCC 701 (Rules 16, 38 of Punjab Police Rules, 1934]. [s 197.8] Criminal and departmental proceedings.— It is well settled that criminal and departmental proceedings are entirely different from each other and they operate in different fields and have different objectives. Acquittal or exoneration from one such proceeding does not ipso facto lead to either the delinquent or the accused (as the case may be) being absolved of his liability for charges in the other proceedings, be it criminal or departmental. [Susanta Kumar Dey v UOI, 2010 Cr LJ 1171 (1177) (Cal) ; Superintendent of Police (CBI) v Deepak Chowdhary, 1996 Cr LJ 405 : AIR 1996 SC 186 : 1995 AIR SCW 3905 relied on]. [s 197.9] Adverse remarks.— A Judge should not make adverse remarks about the order granting sanction when it shows no legal informity.—[State of Maharashtra v Ishwar Praji Kalpati, AIR 1996 SC 722 : (1996) Cr LJ 1127 , 1130 : 1996 SCC (Cri) 150 (SC)]. [s 197.10] Superior Officer’s orders.— Where a Tehsildar has merely discharged his duty by obeying the Collector’s order to auction the property of the complainant for realising the Governments dues no offence of theft can be said to have been committed— [NK Ogle v Sanwaldas, AIR 1999 SC 1437 : (1999) Cr LJ 2105 : (1999) 3 SCC 284 : 1999 (2) Crimes 1 (SC)].

Where the respondent Distrust Education Officer was functioning as District Commissioner of Scouts in an honoury capacity, sanction under section 197, Code of Criminal Procedure, 1973 is not required—[Samual Rajendran Maisa v K. Krishna Rao, (1998) Cr LJ 231 : 1997 (3) APLJ 18 : 1998 (3) Rec Cr R 267 (AP)]. [s 197.11] Acquittal for want of sanction.— Where sanction is not obtained the accused has to be acquitted. He cannot be “discharged” to give the prosecution an opportunity to obtain sanction [Prakash Chandra Jaiswal v State of UP,(1992) Cr LJ 1590 : 1992 All LJ 577 (All) (NL Ganguly J)].

Appeal was filed against refusal to quash prosecution for want of sanction. The accused was sub-inspector in CRPF. Prosecution was under section 10(4) of Indian CRPF Act 1949 and section 409 of Indian Penal Code. It was pending for almost 14 years. Apart from mental agony, fair trial became impossible. Prosecution was quashed without going into question of applicability of section 197, Code of Criminal Procedure, 1973 Fact that delay was due to pendency of appeal in Supreme Court was irrelevant [SG Nain v UOI, AIR 1992 SC 603 : (1992) Cr LJ 560 : 1995 SCC (Cri) 889 : 1995 Supp (4) SCC 552 (SC)].

Order of Magistrate initiating proceedings against a public servant and issuing process are liable to be quashed for want of sanction [Subhash Manmothe v State of Maharashtra, 2007 Cr LJ 537 (Bom)]. [s 197.12] Decision about sanction—At the earliest stage.— As the defence of want of sanction is the last resort of many dishonest Government servants and is generally reserved until appeal, whenever any person is charged with an offence, courts should at the earliest stage consider whether sanction is necessary and if it is, whether it has been duly given [Lumbhardar Zutshi v Emperor, AIR 1948 Bom 79 : (1948) 49 Cr LJ 4 : 49 Bom LR 609 : ILR (1947) Bom 538 ]. Parties should also

Page 8 of 39 [s 197] Prosecution of Judges and public servants.— raise objection as to sanction at the earliest stage [State v Laldas, AIR 1953 Bom 177 : 1953 Cr LJ 806 : 54 Bom LR 955 : ILR (1953) Bom 55 ]. The plea or necessity of sanction should be gone into in the first instance [Narayana, 1933 MWN 1425 ]. When accused pleads sanction in bar, the onus is on him to prove its necessity [Huntely, AIR 1944 P 378]. In PK Pradhan v State of Sikkim, (2001) 6 SCC 704 the Apex Court has held that the question of sanction can be raised at any time after the cognizance; may be immediately after cognizance or framing of charge or even at the time of conclusion of trial and after conviction as well. But, there may be certain cases where it may not be possible to decide the question effectively without giving opportunity to the defence to establish that what he did was in discharge of his official duty. Whether such a claim was reasonable and neither pretended nor fanciful, can be examined during the course of trial. In such an eventuality, the question of sanction should be left open to be decided in the main judgment, which may be delivered upon conclusion of the trial. See Raj Kishore v Kamleshwar, AIR 2002 SC 2861 : (2002) 6 SCC 543 : 2002 SCC (Cri) 1423 . This view was reiterated in Raj Kishore Roy v Kamleshwar Pandey, AIR 2002 SC 2861 : 2002 Cr LJ 3780 : 2002 SCC (Cri) 1423 . In that case, the complainant alleged that the police officer had falsely implicated him and had also falsely shown recovery of illegal weapon from him. While considering the prayer for quashing the order of cognizance, it was observed that in such cases, the question whether the accused officer had acted in course of official duty or not and whether sanction is necessary or not should be left open to be decided in the main judgment, which may be delivered upon conclusion of trial. The settled position of law is that when it is apparent from the complaint petition itself that the act complained of was done by a public officer in due discharge of his duty as a public officer, sanction is to be demanded at the time of taking cognizance. If there is any doubt or if any enquiry is necessary as to whether the act complained of had nexus with the performance of official duty, then the matter is to be left to be decided at a later stage of the case. The complainant has alleged that the petitioners abused, assaulted and confined him illegally. As these are not prima facie part of any official duty, enquiry is necessary to determine whether the acts complained of were done in performance of official duty or was fanciful. In such an event, the learned SDJMwas not duty bound to decide the question of sanction under section 197, Code of Criminal Procedure, 1973 before taking cognizance [Narashing Bhai v State of Orissa, 2004 Cr LJ 4425 : 2004 (24) All Ind Cas 540 : 2004 (2) Ori LR 389 ]. The Supreme Court has held that it is not always necessary that the need for sanction should be considered as soon as the complaint is lodged and on the allegations contained therein. The question may arise at any stage of the proceedings. The complaint may note disclose all the facts for the purpose, but facts subsequently coming to light on police or judicial inquiry or even in the course of prosecution evidence may establish the necessity for sanction [Matajog Dobey v H.C. Bhari, AIR 1956 SC 44 : 1955 (2) SCR 925 : 1956 Cr LJ 140 : (1955) 28 ITR 941 followed In Ramnath v Salig Ram Sharma, AIR 1967 All 519 : 1967 Cr LJ 1463 : 1967 All LJ 362 : 1967 All WR 170; Bhagwan Pd Srivastava v N.P. Misra, AIR 1970 SC 1661 : 1970 Cr LJ 1401 : (1970) 2 SCC 56 (SC); Pukhraj v State of Rajasthan, AIR 1973 SC 2591 : 1973 Cr LJ 1795 : (1973) 2 SCC 701 ]. Point for determination and availability of protection provided under section 197 of the Code to the petitioners is not required to be deferred for being decided at a later stage on at the time of final judgment [Raghav Chandra v Tarvinder Kaur, 2003 Cr LJ 2208 : 2003 (1) MPHT 151 : 2003 CrLR (SC & MP) MP 179 (MP)]. The court without confining itself to the allegations in the complaint can take into account all the materials on the record at the time when the question is raised and falls for consideration [SB Saha v MS Kochar, A 1979 SC 1841 : 1979 Cr LJ 1367 : (1979) 4 SCC 477 ]. At the stage of taking cognizance by the Magistrate he has only to see whether the acts alleged against the accused can be said to be in purported execution of his duty. But facts subsequently coming to light during the course of trial may establish the necessity for sanction. Whether sanction is necessary or not may have to depend from stage to stage [Pukhraj v State of Rajasthan, AIR 1973 SC 2591 : 1973 Cr LJ 1795 : (1973) 2 SCC 701 (SC)]. The necessity for sanction may reveal itself in the course of the progress of the case [see Matajog, supra] and it would be open to the accused to place the material on record during the course of the trial for showing what his duty was and also the acts complained of were so inter-related with his official duty so as to attract the protection afforded by section 197 [Bhagwan Pd, quoted with approval in Pukhraj v State of Rajasthan, AIR 1973 SC 2591 : 1973 Cr LJ 1795 : (1973) 2 SCC 701 ]. The single Bench decision in Chung Ping Yung v Amiya Chakrabarthi, AIR 1956 Cal 109 : 1956 Cr LJ 519 , that when a preliminary objection as to want of sanction is raised, the court should take necessary evidence to decide whether sanction is necessary, does not seem to be in accord with Matajog, supra. It was also dissented from in Sri Pradip Choudhury v State, AIR 1957 Ass 146 : 1957 Cr LJ 1099 . The court is competent to make all possible enquiry whether sanction is necessary before congnizance can be taken and if it decides that sanction is necessary, it should straightaway dismiss or return the complaint [Vishvamohan Raghuviraprasad Tiwari v Mahadu Chaudhari, AIR 1964 Bom 191 : 1964 (2) Cr LJ 272 (2) : 1964 Mah LJ 227 : 66 Bom LR 28]. Complaint can be dismissed for want of sanction even after taking cognizance of case [Durga Prasad Khosla v RA Rahmani, AIR 1965 All 208 : 1965 (1) Cr LJ 532 ].

In view of the different views taken by different courts at different points of time with regard to the question of

Page 9 of 39 [s 197] Prosecution of Judges and public servants.— sanction, the validity of sanction, absence of sanction, omission or irregularity of sanction, since are to be considered at the time of final decision of the case, leaving the said question open for determination at the time of final decision of the case [K Shivaram Shetty v State, 2008 Cr LJ 3307 (3312) (Kant) : 2008 (4) AIR Ker R 192].

It was alleged that the accused police officials assaulted the complainant when he had gone to police station. It was held that whether the act of the accused was committed during discharge of official duty, the court would be in a better position to decide the same after recording evidence in the case. Court should not insist at the initial stage in the case [M Jeevanadham v Balaji, 2007 Cr LJ 2621 : 2007 (1) Mad LJ (Cri) 960 (Mad)].

Whereas an order of sanction in terms of section 197, Code of Criminal Procedure, 1973 is required to be obtained when the offence complained of against the public servant is attributable to the discharge of his public duty or has a direct nexus therewith, but the same would not be necessary when the offence complained of has nothing to do with the same. A plea relating to want of sanction although desirably should be considered at an early stage of the proceedings, but the same would not mean that the accused cannot take the said plea or the court cannot consider the same at a later stage. Each case has to be considered on its own facts. Furthermore, there may be cases where the question as to whether the sanction was required to be obtained or not would not be possible to be determined unless some evidence is taken, and in such an event, the said question may have to be considered even after the witnesses are examined. [Ramesh Lal Jain v Nagender Singh Rana, (2006) 1 SCC 294 : 2005 AIR SCW 5875 : 2005 (4) Crimes 290 : 2005 Cri LJ 5068], the Apex Court held and observed as above:

Accused cannot participate in the proceedings before the process is issued and raise objection [Budhi Parkash Yadav v KC Sharma, 1981 Cr LJ 993 (P&H)]. [s 197.13] “Judge”.— (See section 19, Indian Penal Code, 1860). Sanction in necessary in respect of any offence committed as Judge. “Magistrate” has been specifically mentioned as in view of the definition of: “Judge” in section 19, Indian Penal Code, 1860 there would be no protection when acting in capacities other than judicial, e.g., holding enquires etc. The following have been held to be Judges: Members of village Panchayat Court [Shivarama Krishna, 40 Cr LJ 396; Kamla, 37 Cr LJ] or its President [Subbiah, AIR 1939 M 604; Chellaperumal, 137 MWN 216]. Election officer removing name from roll [Hanumantha, 1937 MWN 740 ]; but not returning officer scrutinizing nomination papers [Data Ram v Ved Parkash Chopra, AIR 1970 P&H 21 : 1970 Cr LJ 67 : 71 Punj LR 999]. Village Magistrate [Subba Reddi, 1937 MWN 870 ]; Village munsif [Sankaralinga, 17 Cr LJ 394]. [s 197.14] “Public servant”.— (See section 21, Indian Penal Code, 1860). Any person whether receiving pay or not, who chooses to take upon himself the duties and responsibilities of a public servant and performs those duties and accepts those responsibilities and is recognised as filling the position of a public servant must be regarded as one [Parmeshar, 8 A 201].

Where the public servant had been compulsorily retired and was not public servant on the date when the cognizance of the offence was taken, Sanction under section 197, Code of Criminal Procedure, 1973 was held not necessary [State v AN Dhyaneswaran, 2004 Cr LJ 2802 (Mad) : 2004 Mad LJ (Cri) 392 : 2004 (4) Rec CrR 84]. [s 197.15] Public undertakings.— Persons employed in public undertakings do not enjoy the protection conferred by section 197.—[Mohd Hadi Raza v State of Bihar, AIR 1998 SC 1945 : 1998 Cr LJ 2826 : (1998) 5 SCC 91 : 1998 (2) Crimes 284 (SC)].

Protection by way of sanction under section 197, Code of Criminal Procedure, 1973 is not applicable to the

Page 10 of 39 [s 197] Prosecution of Judges and public servants.— officers of Government companies or the public undertakings even when such public undertakings are State. [Garhwal Mandal Vikas Nigam Ltd v Matagarg and Co, 2010 Cr LJ 3783 (3788) (Uttara)]. [s 197.16] Public servants.— A Minister of State [M Karunanidhi v UOI, AIR 1979 SC 898 : 1979 Cr LJ 773 : 1979 SCC (Cri) 691 : (1979) 3 SCC 431 ; Shiv Bahadur Singh v State of VP, AIR 1953 SC 394 , 401 : 1954 Cr LJ 1480 : 1953 SCR 1188 ; Shivnath, 1945 FCR 195 : AIR 1945 PC 156 : 72 A 241; Namdeo Kashinath Aher v HG Vartak, AIR 1970 Bom 385 : 1970 Cr LJ 1427 : 1970 Mah LJ 662 ]; Member District Board [Krishna, 26 Cr LJ 1157; Bajrang, AIR 1932 O 308]; President or member of Taluka Board [Rudragouda, AIR 1937 B 160; Hidayatullah, AIR 1933 SC 161 ; Sivasankaran, 52 M 446]; Chairman of Municipality [Chairman, 1 Weir, 243; Ramnarayan, 32 Cal WN 1035]; Sarpanch or Up-Sarpanch of a Panchayat [Pukhraj v Ummaidram, AIR 1964 Raj 174 : 1964 (2) Cr LJ 339 : 1964 Raj LW 238 ; Ramdutt v State of Rajasthan, AIR 1966 Raj 125 —contra:1966 Cr LJ 584 ; Konkati Narayana v Balakanti Veerayya, AIR 1959 AP 27 : 1959 Cr LJ 21 : 1958 Andh LT 731 : 1958 Mad LJ (Cri) 897] or Union Panchayat [Shk Abdul, 17 Cr LJ 168]; Municipal Commissioner [Kishen, 23 Cr LJ 750; Hirala, AIR 1939 C 636; Jatindra, AIR 1934 P 548; Kali Pd, AIR 1938 P 543]; President of a Municipality [Chimanbhai Kashibhai Patel v Jashbhai Motibhai Desai, AIR 1961Guj 57 : 1961 (1) Cr LJ 499 ]; Members of Committee appointed under section 21(1), Bengal Municipal Act [Nur Ahmmed, 39 Cal WN 20]. President, vice- president and secretary of Municipal Committee [Ram Avtar Sharma v Haryana State Board for the Prevention and Control of Water Pollution, 2003 Cr LJ NOC 44 : 2002 (3) Rec Cr R 462 : 2002 (1) Chand LR (Civ & Cri) 626 (P&H)].

Where the petitioner, Municipal Commissioner was alleged to have misappropriated the public money and caused loss to the municipality, sanction under section 197, Code of Criminal Procedure, 1973 was necessary. In the absence of sanction, the prosecution was quashed [Chapala Vijayakumar v State of AP, 2007 Cr LJ (NOC) 6 (AP)].

Where accused public servants were alleged to have forged ration cards in large number, sanction under section 197, Code of Criminal Procedure, 1973 for their prosecution was required [Rajesh Kumar v State of UP, 2008 Cr LJ (NOC) 1271 : (2008) 5 ALJ 1 (All) : 2008 (62) All Cri C 147].

Under the provisions of Electricity Act, 2003, the officers of MSEB are not public servants, no sanction for their prosecution is required [Asoke Basak v State of Maharashtra, 2008 Cr LJ (NOC) 834 (Bom) : 2007 (2) Bom Cr (Cri) 742 : 2008 (3) AIR Bom R 347 : 2007 All MR (Cri) 3343].

Employees of Municipal council discharging their duties by removing unauthorised construction. [Subhash S Agrawal v State of Maharashtra, 2006 Cr LJ (NOC) 580 (Bom) : 2006 (5) AIR Bom R 512].

The following are not public servants. Chairman of Co-operative Society [Shridhar, AIR 1935 B 36]; Municipal Secretary [Kishen, AIR 1924 L 310]; Vice-president of District Municipality [Vishvamohan Raghuviraprasad Tiwari v Mahadu Chaudhari, AIR 1964 Bom 191 : 1964 (2) Cr LJ 272 (2) : 1964 Mah LJ 227 : 66 Bom LR 28]; Municipal Engineer [Jatindra, AIR 1934 P 548]; Servants of District Board [Anwarullah, AIR 1934 A 173]; Receiver appointed by court [Mg Saw, AIR 1939 R 202; Khimchand, AIR 1928 B 493 [Lukhmanji, AIR 934 B 306; Janendra, 43 Cal WN 582 J].

Employee of Municipal Corporation entrusted with functions of public Analyst under Food Adulteration Act does not become employee of State Government— Sanction for his prosecution is not necessary. The words “removable from office” occurring in section 197 signify removal from the office which he is holding. The appointment as public Analyst by the Government did not confer on him the status of a public servant or an officer under the service and pay of the Government. The cancellation of the appointment as public Analyst would not amount to removal from office. Section 197, Code of Criminal Procedure, 1973 in this context contemplates the removal of the appellant from the office of the Laboratory Officer and not his transfer or removal from the office of the public Analyst [Lakshman Singh Himat Singh Vaghela (Dr) v Naresh Kumar Chandrashanker Jha, AIR 1990 SC 1976 : 1990 Cr LJ 1921 : (1990) 4 SCC 169 Supreme Court. Chief Storekeeper of Port Trust Estate [Naylor, AIR 1941 SC 30 ]; Tehsildar acting as polling officer in a municipal

Page 11 of 39 [s 197] Prosecution of Judges and public servants.— election [Jagamadhaswami, AIR 1928 M 161; Civil servant working on deputation with Co-Operative Society [SS Dhanoa v Municipal Corp, Delhi, AIR 1981 SC 1395 : 1981 Cr LJ 871 : (1981) 3 SCC 431 (SC)] are not public servants.

Every railway servant is not a public servant for all purposes. He is not a public servant for offences under section 408, Indian Penal Code, 1860 [Ambika Prasad Singh v State, AIR 1958 Pat 441 : 1958 Cr LJ 1083 : 1957 BLJR 714 ]. [s 197.17] Sanction for prosecution.— Sanction for prosecution is mandatory pre-requisite even where cognizance is taken under section 319. The order granting or declining sanction can also be assailed by taking recourse to judicial review [Surinderjit Singh Mand v State of Punjab, AIR 2016 SC 3251 : 2016 (6 ) Scale 260 ].

The appellant allegedly exceeded in exercising his power during investigation of criminal case and assaulted the complainant and thereafter detained him in police station. The Apex Court while reversing the Karnataka High Court order held that the said offence committed is reasonably connected with performance of official duty therefore previous sanction for prosecution is necessary [DT Veerupakashapa v C Subhash, AIR 2015 SC 2022 : 2015 (3) PLJR 204 : 2015 (4) AJR 624 ].

There was a failure on part of appellant to provide Government jeep for shifting patient to District Hospital, whereas he himself travelled in Government jeep to District Head-Quarters to attend meetings. Since the act/omission was done in discharge of his official duty therefore the sanction to prosecute him for offence under section 304-A of the Indian Penal Code, 1860, is necessary. [Amal Kumar Jha v State of Chhatisgarh, AIR 2016 SC 2082 : 2016 (2) Mad LJ (Cr) 631].

Prosecution has to obtain sanction only from prosecuting a public servant. Smt Rabri Devi was not a public servant, but a house wife during the relevant period, and whose acts amounted to aiding and abetting her husband making her liable to be charged under sections 107 and 109 of the Indian Penal Code, 1860 [Lalu Prasad Yadav v State of Bihar through CBI (AHD), Patna, (2007) 1 Mad LJ (Cr) 117 (SC) : 2006 (13) Scale 91]. [s 197.18] “Not removable from his office save by Government”.— These words refer to “public servant” only and not to “Judge”. In a few cases the view taken was that the delegation by Government of the power of removal to some other subordinate authority is equivalent to removal by the Government through the medium of that authority and so sanction is necessary [Kyaw Htin, AIR 1934 R 238; Newbould, AIR 1936 L 781; Abdul Khadir, AIR 1917 M344]. But, the better and more accepted view is that section 197 clearly draws a line between public servants and when some lesser authority has by law or rule or order been empowered to remove a public servant, it cannot be said that he is not removable save by or with the sanction of the Government. Thus, an inspector or sub-inspector of police or a constable being removable by the Inspector General or by the Superintendent of Police, no sanction is necessary [Nagraj v State of Mysore, AIR 1964 SC 269 : 1964 (1) Cr LJ 161 (SC); see also Fakhruzamma v State of Jharkhand, 2014 Cr LJ 681 (SC) : 2013 (15) Scale 159 ; Pichai, 58 M 787; Niaz Md, AIR 1939 SC 148 ; Maqbool, AIR 1947 O 210; Maqbool, AIR 1940 O 382; Jalaluddin, 48 A 264 (Excise Inspector); Pathan, AIR 1946 B 86 (Price Inspector); Kripa, AIR 1922 N 121 (Forest Ranger); Sarjoo Prasad v Bidyanandan Singh, AIR 1946 Pat 108 : (1946) 47 Cr LJ 445 (Station Master); Mg, Bo, AIR 1935 R 263; Sakuntala Bai v Venkatakrishna Reddi, AIR 1952 Mad 667 : 1952 Cr LJ 1295 : 1952 (1) Mad LJ 646(Customs Inspector); Ghanairam Pachhuram v State, AIR 1954 Nag 265 : 1954 Cr LJ 1367 : 1954 Nag LJ 534 : ILR (1954) Nag 661 (fourth class of railway servants); Afzalur; AIR 1943 FC 18 : 47 Cal WN 5 FR; Prem Narain Mohanlal Dubey v State, AIR 1957 MB 172 : 1957 Cr LJ 508 : 1956 MBLJ 1304 : 1956 MBLR (Cri) 362 (Panch or Sarpanch); Konkati Narayana v Balakanti Veerayya, AIR 1959 AP 27 : 1959 Cr LJ 21 : 1958 Andh LT 731 : 1958 Mad LJ (Cri) 897 (Sarpanch)—Contra : Prabhu Dayal v Milap Chand, AIR 1959 Raj 12 : 1959 Cr LJ 82 : 1957 Raj LW 639 ; Ramzan Bi v Bhimsen Rao, AIR 1970 Mys 195 : 1970 Cr LJ 1113 : 1970 (1) Mys LJ 218 : 1970 Mad LJ (Cri) 299 (village accountant)]. The employees/officers of the Insurance company are not appointed by the Government nor they are removable from their office without sanction of the Government and thus the protection under section 197, Code of Criminal Procedure, 1973 is not available to them [Oriental Insurance Co Ltd v State of Bihar, 2004 Cr LJ 1951 : 2004 (2) Pat LJR 458 : (2001 Cr LJ (NOC) 137 overruled)]. In Afzalur, supra, the Federal Court observed that section 197 must be interpreted in the light of certain well-known features of the administrative system in India.

Page 12 of 39 [s 197] Prosecution of Judges and public servants.— Otherwise there is the danger of ignoring the policy of the Legislature in limiting the class of officers entitled to protection and of making section 197 available to all public officers [Afzalur, supra; see Banerjee, A 1945 FC 14 : 1944 FCR 365 ]. As to removing authority, see section 16, General Clauses Act, 1897. One of the meanings of the word “remove” is “to take off or away from the place” occupied (COD) [The State v B Chikkavenkatappa, AIR 1965 Mys 253 : 1965 (2) Cr LJ 379 : 1965 Mad LJ (Cri) 35].

The petitioners are manager, recovery officer and Supervisor of Bhumi Vikas Bank under Madhya Pradesh Sahkari Krishi Aur Gramin Vikas Bank Adhiniyam (20 of 1999) are not removable from service by Government and thus are not entitled for the protection of section 197, Code of Criminal Procedure, 1973 [Arvind Kumar Bhargava v Lalit Prashar, 2008 Cr LJ 1294 (1298) (MP)].

When the public servant is employed temporarily by the Government of India or his service have been loaned to it by State Government the sanction is to be granted by the Government of India [Chari RR v State of UP, AIR 1962 SC 1573 : 1962 (2) Cr LJ 510 : 1963 (1) SCR 121 ]. Where an officer is removable by the Railway Board, no sanction is necessary as the Board is neither the State Government nor the Central Government [Indu Bhusan Ghosh v State, AIR 1950 All 639 ; KN Shukla v Navnit Lal Manilal Bhat, AIR 1967 SC 1331 : 1967 Cr LJ 1200 : 1967 (2) LLJ 261 : 1967 (2) SCR 290 (Railway officer officiating in Class I of the Transportation (Traffic and Commercial Department)]. The words “not removable by Government” do not apply to a Municipal Corporation, which is not a public servant. It can be prosecuted under the Penal Code without sanction [Municipal Corp, 3 C 758].

Where an appointment requires the previous sanction of Government (i.e., Manager, Court of Wards or Manager under Chhotanagpur, Encumbered Estate Act) he cannot be dismissed without Government sanction and section 197 applies [Anglo, 41 Cr LJ 221; Hemendra, AIR 1937 P 160]. The chairman or president of a Municipality is not removable without the sanction of Government [Ramnarayan, 32 Cal WN 1035; Kali Pd, 39 Cr LJ 285; Chimanbhai Kashibhai Patel v Jashbhai Matibhai Desai, AIR 1961 Guj 57 : 1961 (1) Cr LJ 499 ; Ladu Ram v Rameshwar, AIR 1968 Raj 136 : 1968 Cr LJ 654 : 1968 Raj LW 59 —Contra : The State v B Chikkavenkatappa, AIR 1965 Mys 253 : 1965 (2) Cr LJ 379 : 1965 Mad LJ (Cri) 35]. So also Minister of State, the fact that he is also removable by adverse vote in assembly does not affect his legal position [Namdeo Kashinath Aher v HG Vartak, AIR 1970 Bom 385 : 1970 Cr LJ 1427 : 71 Bom LR 758 : 1970 Mah LJ 662 ].

Where the sub-inspector and Assistant Sub-Inspector are removable from service by Superintendent of police who is their appointing authority. They are not entitled to protection under section 197, Code of Criminal Procedure, 1973 [Sant Kumar v State of Punjab, 2003 Cr LJ 2949 : 2003 (3) All CrLR 412 : 2003 (2) Rec Cr R 431 (P&H); See also Gulzar Mohamad v State of HP, 2008 Cr LJ 1350 (1355) (HP-DB)].

An employee of a Nationalised Bank does not hold a post where he could not be removed from service except by or with the sanction of Government. Therefore, though he is a public servant, section 197 is not attracted at all. [KCh Prasad v J Vanalatha Devi, AIR 1987 SC 722 : 1987 Cr LJ 697 : (1987) 2 SCC 52 : 1987 (1) Crimes 482 : (1987) 2 SCR 216 ].

In a prosecution against Branch Manager of a bank, there was nothing on record to show that he was a public servant not removable from office except by or with sanction of government, sanction for prosecution was not necessary [Rabindra Nath Shrivastava v State of Bihar, 2007 Cr LJ 350 (Patna)].

Honorary organiser of cooperative credit Societies can be prosecuted without the sanctions contemplated by this section [P Palaniswamy v Shenbaghthattam Residents Association Madurai, 2002 Cr LJ 704 (Mad) : 2002 (4) All CrLR 453].

For the prosecution of peon in Insurance Company, who is removable by the Manager of the company or Divisional Manager Sanction under section 197, Code of Criminal Procedure, 1973 was held not necessary [Bihari Lal v State, 2002 Cr LJ 3715 (Del) : (2002) 98 DLT 220 : (2002) 63 DRJ 525 ].

Page 13 of 39 [s 197] Prosecution of Judges and public servants.—

Section 197 draws a line between public servants of various classes. When some lesser authority has power to remove a public servant, he is not removable save by or with the sanction of Government. [Nirendra Nath Sarkar v State of Assam, (1985) Cr LJ, NOC 21 : 1984 (1) Gau LR 510 (Gau)].

The followings are not public servants and their cases are not covered by section 197, Code of Criminal Procedure, 1973.—Manager of a Cooperative Bank [KB Sharma v State of MP, 2007 Cr LJ (NOC) 737 (MP); Manager v Recovery officer and Supervisor of Bhumi Vikas Bank, 2008 Cr LJ 1294 (1298) (MP)]; Branch Manager of a Bank [Rabindra Nath Srivastava v State of Bihar, 2007 Cr LJ (NOC) 834 (Bom—DB)]; A police constable or Sub-Inspector of Police [Gulzar Muhamed v State of HP, 2008 Cr LJ 1350 (1355) (HP—DB) : 2008 (2) AIR Jhar R (NOC) 537 : 2008 (2) Bom CR (Crii) 467 : 2008 All MR (Cri) 1244]. Officer of MSEB [Asoke Basak v State of Maharashtra, 2008 Cr LJ (NOC) 834 (Bom—DB); Chairman and MD of an Indian Bank v State, (2009) 3 SCC 681 (687)]. Leader of opposition [Sushil Modi v Mohan Guruswamy, 2008 Cr LJ 541 (552) (Del)]. [s 197.19] “While acting or purporting to act in the discharge of his official duty”.— There has been much controversy as to exact meaning and application of these words. The decisions given under section 197, Code of Criminal Procedure, 1973 may roughly be classified as falling into three groups: (1) In one group it is insisted that there is something in the nature of the act complained of that attaches it to the official character of the person doing it, (Cf Shk Abdul, 33 IC 648; Kamisetty, 50 M 754; Amanat, 33 Cal WN 1058; Mg Bo, 13 R 540 FB; Shantivirayya, 40 Bom LR 1268). (2) In another group more stress has been laid on the circumstance that the official character or status of the accused gave him the opportunity to commit the offence. It seems that the first is the correct view. (3) In the third group of cases stress is laid almost exclusively on the fact that it was at a time when the accused was engaged in his official duty that the alleged offence was said to have been committed [Gangaraju, 52 M 602, 605]. The use of the expression “while acting etc.” has been held to lend some support to this view [Horiram, 1939 FCR 159 : 43 Cal WN 60 : 66 FR : AIR 1939 FC 43 ].

In a later case the Privy Council held that a temporal meaning should not be given to the words “while acting etc” [HHB Gill v The King, AIR 1948 PC 128 , 133 : 52 Cal WN 567 : 1948 (2) Mad LJ 6 : 75 IA 41 : 50 Bom LR 487 : (1948) 49 Cr LJ 503 ; see Khimgir v Muhammad Bilawal Abdul Kassim, AIR 1947 Sind 60 : (1947) 48 Cr LJ 573 : 230 IC 175]. The meaning of section 197 was thereafter also discussed in Gill’s case and Lord Simond while observing that much assistance is to be derived from the careful analysis of previous authorities in the judgment of Varadachariar J, (in Horiram, supra) said:—

Their Lordships... cannot accede to the view that the relevant words have the scope that has in some cases been given to them. A public servant can only be said to act or to purport to act in the discharge of his official duty, if his act is such as to lie within the scope of his official duty. Thus, a Judge neither acts nor purports to act as a Judge in receiving a bribe, though the judgment which he delivers may be such an act; nor does a Government medical officer act or purport to act as a public servant in picking the pocket of a patient whom he is examining though the examination itself may be such an act. The test may well be whether the public servant if challenged can reasonably claim that what he does, he does in virtue of his office. [HHB Gill v The King, AIR 1948 PC 128 , 133 : 52 Cal WN 567 : (1948) 49 Cr LJ 503 : 50 Bom LR 487 : 75 IA 41].

The test laid down above was approved and applied in Meads, Albert West Meads v The King, AIR 1948 PC 156 : 75 IA 185 : 52 Cal WN 834 : (1948) 49 Cr LJ 660 : 1948 (2) Mad LJ 120 : 50 Bom LR 664; Phanindra Chandra Neogy v The King, AIR 1949 PC 117 : 76 IA 10 : (1949) 50 Cr LJ 395 : 1949 (1) Mad LJ 177 : 51 Bom LR 440 and Ronald Wood Mathams v State of WB, AIR 1954 SC 455 : 1955 (1) SCR 216 : 1954 Cr LJ 1161 . In Phanindra’s case, it was held that the interpretation of section 197 in Gill, supra, was not obiter and the contention that when the offence charged is an act which would not be an offence unless committed by a public servant, sanction is necessary, was rejected [Phanindra, supra; see Prafulla Kumar Chakravarti v Dhodha Sahani, AIR 1948 Pat 409 : (1948) 49 Cr LJ 696 ].

While discussing the meaning of the section in Horirams’s case, Sulaiman J, said:—

Page 14 of 39 [s 197] Prosecution of Judges and public servants.—

The test is not that the offence is capable of being committed only by a public servant and not by any one else, but that it is committed by a public servant in an act done or purporting to be done in the execution of his duty. The section cannot be confined only to such acts as are done by a public servant directly in pursuance of his public office, though in excess of the duty or under a mistaken belief as to the existence of such duty. An act cannot purport to be acting in pursuance of his official duty and means to convey to the mind of another the impression that he is so acting.

The section is not intended to apply to acts done purely in a private capacity by a public servant. It must have been ostensibly done by him in his official capacity in the execution of his duty, which would not necessarily be the case merely because it was done at a time when he held such office, nor even necessarily because he was engaged in his official business at the time. [Horiram, 1939 FCR 159 , 178; see also Lumbhardar Zutshi v Emperor, AIR 1948 Bom 79 , 86 : 49 Bom LR 609 : ILR (1947) Bom 538 : (1948) 49 Cr LJ 4 ; Sakuntala Bai v Venkata Krishna Reddi, AIR 1952 Mad 667 : 1952 Cr LJ 1295 : 1952 (1) Mad LJ 646 : 65 Mad LW 470; Ittyavira Appran v Mohammad Kunju, AIR 1953 Trav Co 183 FB : 1953 Cr LJ 966 : 1953 Ker LT 57 : ILR (1953) TravCo 1 ].

The real test to be applied to attract the applicability of section 197(3) is whether the act, which is done by a public officer and is alleged to constitute an offence was done whilst acting in his official capacity that what he was neither his duty nor his right to do as such public officer. Where alleged acts of the accused amounted to offences under sections 437, 427 and 323 of the Indian Penal Code, 1860, were protected under section 6 of Assam Disturbed Areas Act, 1955, and section 1970 of the Code, trial court had no jurisdiction to take cognizance of offences against him without requisite sanction. [Rajesh Singh (APS) v State of Assam, 2007 Cr LJ 621 (Gauhati)].

There cannot be any universal rule to determine whether there is a reasonable connection between act done and the official duty, nor is it possible to lay down any such rule. One safe and sure test in this regard would be to consider if omission or neglect on part of the public servant to commit act complained if could have made him answerable for a charge of dereliction of his official duty and there was every connection with act complained of and the official duty of public servant. This aspect makes it clear that concept of section 197, Code of Criminal Procedure, 1973 does not get immediately attracted on institution of complaint case [Prakash Chandra Bafna v Oba Ram, 2011 Cr LJ 416 (418) (Raj)].

Horiram’s case was approvingly referred to by the Supreme Court. It is not the duty we have to examine so much as the act, because an official act can be performed in the discharge of official duty as well as in dereliction of it. Thus, when the accused who were entrusted with Government stores entered into a conspiracy to defraud Government and sold them to a person without crediting the money to Government.— Held that the entrustment and/or dominion were in an official capacity and there could be no disposal, lawful or otherwise, save by an act done or purporting to be done in an official capacity and section 197 applied [Shreekantiah Ramayya Munipalli v State of Bombay, AIR 1955 SC 287 : 1955 SCR 1177 : 1955 Cr LJ 857 ]. The conditions which necessitate sanction have also been discussed by the Supreme Court in [Amrik Singh v State of Pepsu, AIR 1955 SC 309 : 1955 (1) SCR 1302 : 1955 Cr LJ 865 ].

When a particular person wants to take the plea of statutory protection, he is to prove that the alleged act or omission was done in relation to or in connection with his official duty [Hari Narayan Singh v State of WB, 2009 Cr LJ 4001 (4006) (Cal)].

The essential requirement is reasonable connection between the act and official duty and it does not matter if the act exceeds what is strictly necessary for discharge of the duty [Abdul Wahab Ansari v State of Bihar, AIR 2000 SC 3187 : 2000 Cr LJ 4631 : 2000 (4) Crimes 152 ; State of HP v MP Gupta, AIR 2004 SC 730 ; Nirupam Dey v Chaitanya Dalua, 2004 Cr LJ 704 : 2003 (2) Ori LR 569 : 2004 (3) Rec Cr R 5; Tapan Kumar Bhatacharjee v Bipin Kumar Bose, 2002 (4) Crimes 121 (Cal); State of HP v MP Gupta, AIR 2004 SC 730 : 2004 SCC (Cri) 539 : (2004) 2 SCC 349 : 2004 (1) Crimes 132 ; Sk Zutshi v Bimal Debnath, AIR 2004 SC 2179

Page 15 of 39 [s 197] Prosecution of Judges and public servants.— ; K Kalinuthu v State, 2005 (2) Crimes 56 (SC) : AIR 2005 SC 2257 : 2005 Cr LJ 2190 : (2005) 4 SCC 512 ; State v Ganesh Chandra Jew, AIR 2004 SC 2179 : 2004 Cr LJ 2011 : (2004) 8 SCC 40 : 2004 (2) Crimes 404 ; Jaya Singh v KK Velayutham, 2006 Cr LJ 3272 (SC) : AIR 2006 SC 2407 : 2006 (2) Crimes 275 : (2006) 2 SCC 573 ; Prakash v State of Kerala, 2011 Cr LJ 2572 (Ker); Bindyachal Choubey v State of Jharkhand, 2010 Cr LJ 1531 (1535) (Jhar)].

The offence relating to misappropriation, cheating, forgery etc. can never be considered to be an act done in discharge of official duty and, therefore, no sanction is required for launching the prosecution [Bindyachal Choubey v State of Jharkhand, 2010 Cr LJ 1531 (1535) (Jhar)].

Where the act of public servants had reasonable nexus in discharge of their official duty, it was held that in absence of sanction of State Government for prosecution of petitioners the order taking cognizance, was held liable to be quashed [Biswanath Hata v State of Orissa, 2010 Cr LJ (NOC) 43 (Orissa)].

Order taking cognizance of offence by Magistrate against police official who was present on spot of offence while discharging his official duty, without obtaining sanction under section 197 is not sustainable [Arun Kumar Sarangi v Madan Pattanaik, 2002 Cr LJ NOC 47 : (2001) 20 OCR 164 : 2001 (1) Ori LR 342 (Ori)].

In the instant case, where the petitioner, Deputy SP, was charged for offences under sections 302, 201, 218, 120-B, Indian Penal Code, 1860, all the overt acts on the part of the petitioner, as highlighted in the chargesheet did not fall beyond the scope of the authority of petitioner in his capacity as SDPO. The specific act of the petitioner as disclosed in the chargesheet could not be said to be completely separated either from the official act or purported official act. The offence under section 218, Indian Penal Code, 1860 can only be committed by public servant in his capacity as public servant, or in the colourable exercise of the act as a public servant. Prosecution against petitioner was liable to be quashed for lack of sanction [Jayanta Mukherjee v State of WB, 2009 Cr LJ 4178 (4189, 4190) (Cal)].

It is no part of the duty of a public servant, while discharging his official duties, to enter into a criminal conspiracy or to indulge in criminal misconduct. Want of sanction under section 197 of the Code is, therefore, no bar [Rajib Ranjan v R Vijayakumar, 2015 Cr LJ 267 (SC) : (2015) 1 SCC 513 ].

Where the prima facie case of corruption is made out, even sanction not granted properly does not vitiate trial [Girish Kumar v State of Bihar, 2002 (1) East Cri C 216 (Pat)].

When acts by petitioner, a General in Indian Army not performed in discharge of official duty then prior sanction for his prosecution is not necessary [Lt General (Retd) Nirmal Puri v UOI, 2002 Cr LJ 158 : (2001) 94 DLT 632 : (2001) 60 DRJ 603 (Del)].

Acts of withdrawal of money and its disbursement to the labourers did not fall in the public duty. Petitions are premature and not maintainable [DR Dongre v State of MP, 2002 (1) MPHT 421 : 2002 (2) MPLJ 534 : 2002 CrLR (SC & MP) 603 (MP) (Jab)].

Accused withdrew huge amount. Act was illegal, having not come within his official duties. Sanctions have not been thus necessary [2010 Cr LJ (NOC) 602 (Bom)].

In the instant case, the complainant was found to have gone to join his duty and mark his presence in the register but he was stopped to do so by Junior Engineer under the instructions of the petitioner. When the complainant asked the reason to the petitioner for not marking his presence, he abused him and pushed him to go out of the office. It was held that the act of petitioner would not be said to be an act in discharge of official

Page 16 of 39 [s 197] Prosecution of Judges and public servants.— duty and, therefore, the protection under section 197, Code of Criminal Procedure, 1973 was not available to the petitioner [Prakash Chandra Bafna v Oba Ram, 2011 Cr LJ 416 (418) (Raj)].

The complainant had protested rending of reservation tickets in an illegal manner by Railway Reservation Clerk/Supervisor. They got irritated, called him inside the reservation room on the pretext of giving him the complaint book and thereafter the complainant was abused and assaulted by them. By no stretch of imagination one can presume what the opposite parties nos 2 to 4 had allegedly was done in discharge of their official duties pertaining to rending of reservation tickets to the passengers. Sanction for prosecution was not required [Jagdish Prasad Gaur v State of UP, 2011 Cr LJ 1452 (1454) (All) : (2011) 2 ADJ 475 ].

Where the President of Municipality asked the complainant Chief Officer to sign cheque and on the latter’s refusal, assaulted the complainant with knife and threatened to kill him, it was held that by no stretch of reasoning the act of the president of Municipality could be said to be an act falling in range of official duty and so the protection of section 197, Code of Criminal Procedure, 1973 was not available to him. [Ramkubhai Valkubhai Dhakhda v State of Gujarat, 2006 Cr LJ (NOC) 393 (Guj) : (2006) 1 Guj LR 613].

Where the accused, Deputy Secretary of Vidhan Sabha, allegedly abused the informant in his caste name and generalised the characters of the females of his caste questioning their chastity, it was held that for the prosecution of the accused under sections 22, 3(1)(x) of SC and ST Act, sanction under section 197, Code of Criminal Procedure, 1973 was not required, as the act of the accused did not fall within the official duty [Vinoda Nand Jha v State of Jharkhand, 2007 Cr LJ 1979 (1981)].

Illegal detention of a person and demanding money and taking a bribe by a public servant has no nexus with the discharge of official duty and hence sanction for prosecution is not required [Jai Prakash Dubey v State of UP, 2008 Cr LJ (NOC) 920 : 2008 (61) All Cri C 544, relying on AIR 2006 SC 336 ].

Illegal detention of, and assault against a person by the police official would not be part of his official duty and therefore, Sanction under section 197 would not be required [SA Aziz v Pasam Hari Babu, 2003 Cr LJ 2462 (AP) : 2003 (2) Andh LT (Cri) 107 ].

No sanction is required for prosecution of public servant for offence under section 5 of the Prevention of Corruption Act, 1947 [Bhargavan Pillai v State of Kerala, AIR 2004 SC 2317 : 2004 Cr LJ 2494 : 2004 (2) Crimes 415 ].

For prosecution of a sub-inspector for allegations of misappropriation and corruption against him, no sanction under section 197 is required [Ramesh Lal Jain v Naginder Singh Rana, AIR 2006 SC 336 : (2002) Cr LJ 3124 (P&H) : 2002 (3) All CrLR 435 reversed; see N Bhargavan Pillai v State of Kerala, AIR 2004 SC 2317 : 2004 Cr LJ 2494 : 2004 (2) Crimes 415 ].

The offences punishable under sections 409, 420, 467, 468, 471 etc can by no stretch of imagination by their very nature be regarded as having been committed by a public servant while “acting or purporting to act in discharge of official duty”.—[Prakash Singh Badal v State of Punjab, 2007 AIR SCW 1415; Bholu Ram v State of Punjab, 2008 Cr LJ 4576 (4586) : 2008 AIR SCW 6258 : (2008) 9 SCC 140 ; Vinod Krishna Gaur v State of UP, 2008 Cr LJ 1153 (1161, 1162) (All) : 2008 (1) All LJ 480 : 2008 (60) All Cri C 494].

When the offences under sections 420, 467 and 468 of the Indian Penal Code, 1860 were alleged to have been committed by the accused in his capacity of public servant, sanction under section 197, Code of Criminal Procedure, 1973 was found necessary [SS Trivedi v State of MP, 2007 Cr LJ (NOC) 873 (MP)].

For prosecution of commissioner for allegations of offences under section 420, 406 and 161, Indian Penal

Page 17 of 39 [s 197] Prosecution of Judges and public servants.— Code, 1860, sanction under section 197 was necessary as the act of cheating or breach of trust were connected with the official duty of the accused [Om Kumar Dhankar v State of Haryana, 2007 Cr LJ 3820 (3824)].

In the instant case, the accused police officers entered the house of complainant in search of accused in connection with a criminal case, and allegedly committed offences under sections of Indian Penal Code, 1860. It was held that the acts of the accused were done in the discharge of their official duty and, therefore, dismissal of complaint for want of sanction under section 197, Code of Criminal Procedure, 1973 was proper [Sumitra Devi (Dr) v Manjit Singh Ahlawat, 2007 Cr LJ 3827 (3831) (P&H) : 2007 (4) Rec Cri R 1]. Where the accused sub-post master had not deposited the amount collected by him in the post office and also did not make entries in the record, it was held that the accused had not done the act in the discharge of his official duties and thus for his prosecution under section 409, Indian Penal Code, 1860, no sanction under section 197, Code of Criminal Procedure, 1973 was required [Sukharam Pandusa Tapsi v State of Maharashtra, 2007 Cr LJ 2201 (2206) (Bom)]. In an Allahabad case, where a postal clerk had not deposited the money deposited in the accounts of account holders and misappropriated the same, it was held that the act was directly connected with his official duty and therefore sanction was necessary [State of UP v Amin Beg, 1998 Cr LJ 1964 (All)].

When any false document is prepared by the investigating officer during the course of investigation such an act would not be saved. He can certainly be said to be acting out of bounds and, therefore, this brings the case out of clutches of section 197, Code of Criminal Procedure, 1973 [Nandkumar S Kale v Bhaurao Chandrabhanji Tidke, 2007 Cr LJ 4641 (4644) (Bom) : 2007 (5) AIR Bom R 547 : 2008 (Supp) Bom CR 161].

For prosecution of police officials under various provisions of Indian Penal Code, 1860 for interpolation in the marks of the papers in the departmental entrance examination, sanction under section 197, Code of Criminal Procedure, 1973 was held not necessary as the said act of interpolation in marks would not be said to have been done in discharge of official duty [Suresh Rooprao Khandar v State of Maharashtra, 2003 Cr LJ 2219 (2222) (Bom)]. Where the allegations made against the accused related to acts that had no nexus or connection to the discharge of official duties, their prosecution on those allegations had no need to any sanction under section 197, Code of Criminal Procedure, 1973. In this case the public servant had allegedly tampered with entries made in official registers, tore pages and from different registers and destroyed them [State of Maharashtra v Devahari Devashing Pawar, 2008 Cr LJ 1593 (1596) : AIR 2008 SC 1375 : (2008) 2 SCC 540 : 2008 1 SCC (Cri) 502 ].

The act of a police officer stopping a person going on motor cycle, beating him and abusing him in filthy language, cannot be said to be in discharge of official duty and, therefore, sanction under section 197, Code of Criminal Procedure, 1973 would not be required for his prosecution [DN Pandey v State of UP, 2006 Cr LJ (NOC) 333 : 2006 (4) All LJ 322 (All) : 2006 (55) All Cri C 498].

Police personnel were prosecuted under sections 307, 120-B, 147 to 149, Indian Penal Code, 1860 and they approach court for quashing of proceedings for want of sanction. It was held that it could not be quashed as there was no evidence to prove that the alleged acts of violence were committed by them in discharge of their official duties [GV Choudhary v State, 2007 Cr LJ 4481 (Guj)].

Where the accused, sub-inspector of police did not arrest the court in service of summons/notice, it was held that service of summons being the discharge of official duty, sanction under section 197, Code of Criminal Procedure, 1973 would be necessary for prosecution of the accused. [P Anil Babu v State, 2006 Cr LJ 3084 (3087) : 2006 (2) Andh LT (Cri) 463 (AP).

The accused allegedly committed offences under sections 420 and 468, Indian Penal Code, 1860 by making entries in revenue records about ownership of property. It was held that the act of accused was done in discharge of official duty and, therefore, for his prosecution sanction under section 197, Code of Criminal Procedure, 1973 was necessary [Basant Lal v Sumedha Kataria, Administrator, 2009 Cr LJ (NOC) 40 (P&H)].

Page 18 of 39 [s 197] Prosecution of Judges and public servants.— In the instant case, the accused, a Naib Tahsildar, issued false caste certificate. The issuance of caste certificate was part of official duty and, therefore, the sanction under section 197, Code of Criminal Procedure, 1973 was necessary for his prosecution [Kamlakar B Marwadkar v State of Maharashtra, 2007 Cr LJ (NOC) 587 : 2007 (3) AIR Bom R 812 (Bom) : 2008 (Supp) Bom CR 123 : 2007 All MR (Cri) 1878].

As the allegations against the accused were directly connected with the discharge of his duties, the cognizance of the complaint made by the respondent could not be taken without sanction from the competent authority [NK Mittal v Dilawar Singh, 2008 Cr LJ 2309 (2312) (P&H) : 2008 (5) AIR Bom R (NOC) 834 (P&H)].

Where the accused, sub-inspector of police had allegedly harassed the complainant during the course of investigation, it was held that for his prosecution under sections 330, 448, 506, 331/511, Indian Penal Code, 1860 sanction under section 197, Code of Criminal Procedure, 1973 was required [Indramani Roy v State of Jharkhand, 2008 Cr LJ 4663 (4667) (Jhar) : 2008 (3) AIR Jhar R 390].

In this case the allegations against the accused was that while acting or purporting to act in the discharge of the official duties, he failed to properly scrutinize the stamp papers to find out whether they were ante-dated to avoid stamp duty required to be paid on account of enhancement of the land value. It was held that for prosecution of accused, sanction under section 197, Code of Criminal Procedure, 1973 was necessary [P Yognanarayna v State of AP, 2007 Cr LJ 3551 (3552) : 2007 (2) Andh LD (Cr) 251].

A complaint was filed against the judicial officer, who had passed the maintenance order, for offence under sections 219, 220 of the Indian Penal Code, 1860. It was held that as the impugned order was passed by the Magistrate in discharge of official duty, protection under section 197, Code of Criminal Procedure, 1973 was available [Pravin Samant v JB Anandgaonkar Saheb, Ex JMFC, Khalkaranji, 2008 Cr LJ 984 (988, 989) (Bom) : 2007 (2) Bom CR (Cri) 891 : 2007 (5) Mah LJ 838 ].

Where it was alleged that the accused a police officer had assaulted the complainant advocate and brought him handcuffed to the police station, it was held that the accused acted in discharge of his official duty and as such in the absence of sanction under section 197, Code of Criminal Procedure, 1973, the prosecution of accused was liable to be quashed [Rajeev Ranjan v State of Jharkhand, 2009 Cr LJ (NOC) 113 : 2008 (3) AIR Jhar R 536 (Jhar)].

In the instant case the three petitioners being officers of the Electricity Department had gone to conduct raid on official duty and the act was done in the capacity of public servant. Held, the cognizance of the offence alleged to have been committed by the petitioners without sanction was illegal [Balbir Prasad Bagish v State of Bihar, 2008 Cr LJ 1323 (1324–25) (Pat)].

In the instant case, the SDM along with force went to the house of the complainant in search of a dead body of a home-guard personnel arrested the complainant’s son, took him away, destroyed her house, beat her husband. It was held that the acts of the accused were in discharge of public duty and his prosecution for want of sanction under section 197, Code of Criminal Procedure, 1973 was liable to be quashed [Rajen Singh v State of Assam, 2007 Cr LJ 621 (633) (Gau)]. [s 197.20] Official act.— In order that the section may apply it is essential that the criminal act constituting the offence should have been done as an official act or under the cloak of what purports to be an official act. It is not enough that his capacity of public servant put him in a position to do the alleged act [Amanat, 33 Cal WN 1058; Patil, AIR 1937 N 293]. The act must fall within the scope and range of the official duties [Bhagwan Prasad Srivastava v NP Misra, AIR 1970 SC 1661 : 1970 Cr LJ 1401 : (1970) 2 SCC 56 (SC)]. Court must find that act complained of and official duty are so interrelated that one can postulate reasonably that it was done in performance of official duty [RP Kapur v Ch Daryao Singh, AIR 1965 Punj 200 : 1965 (1) Cr LJ 93 : 1964 Cur LJ 548 ]. An act which is the very contrary to the duties of a public servant cannot be said to be one in discharge of official duty [Afzalur, AIR

Page 19 of 39 [s 197] Prosecution of Judges and public servants.— 1943 P 229, on appeal AIR 1943 FC 18 : 1943 FCR 7 ]. Nor does an offence arising out of the abuse of official position by an act not purporting to be official require sanction [Lumbhardar Zutshi v Emperor, AIR 1948 Bom 79 : (1948) 49 Cr LJ 4 : 49 Bom LR 609 : ILR (1947) Bom 538 ; Sakuntala Bai v Venkatakrishna Reddi, AIR 1952 Mad 667 : 1952 Cr LJ 1295 : 1952 (1) Mad LJ 646 : 65 Mad LJ 470]. It is no part of official duty to lose temper and abuse and assault or to do things far removed from capacity as a public servant [Dowlath v Deputy Discrict Forest Officer, AIR 1955 NUC 424 : 1953 (2) Mad LJ 28]. There is no protection in respect of an act outside the path of duty or purported duty [Devidas Kewalram v Emperor, AIR 1947 Sind 30 : (1947) 48 Cr LJ 221 : 228 IC 433].

Much of the misconception or confusion that existed regarding the true import of section 197 has been dispelled by the lucid exposition in Horiram and Gill, supra, and some of the decisions before these case are no longer good law in view of the interpretation given in them. The words “offence alleged to have been committed by him while acting or purporting to act in the discharge of official duty” are plain enough and unambiguous and the principle upon which the section is based is also clear. But, it is in the application of the section to the particular circumstances of a case that difficulties sometimes arise. Every case must be judged by its special circumstances. After Gill’s case (ante), section 197 was again examined carefully by the Supreme Court in a few decisions. Even when the charge is one of misappropriation, whether sanction is required depends upon the facts of each case. If the acts complained of are inseparable connected with the duties attached to the office; sanction would be necessary. Otherwise it could not have happened. [Amrik Singh v State of Pepsu, AIR 1955 SC 309 : 1955 Cr LJ 865 : 1955 (1) SCR 1302 ; see Shreekantiah Ramayya Munipalli v State of Bombay, AIR 1955 SC 287 : 1955 Cr LJ 857 ].

After considering the earlier cases (viz. Horiram, 1939 FCR 159 ; Gill, AIR 1948 PC 128 ; Huntley, 1944 FCR 262 ; Shreekantiah Ramayya Munipalli v State of Bombay, AIR 1955 SC 287 : 1955 Cr LJ 857 : 1955 (1) SCR 1117 ; Amrik Singh v State of Pepsu, AIR 1955 SC 309 : 1955 Cr LJ 865 : 1955 (I) SCR 1302 )—the Supreme Court held that the result of these decisions is that in order to necessitate sanction there must be a reasonable connection between the act and the discharge of official duty, “the act must bear such relation to the duty that he could lay a reasonable but not a pretended or fanciful claim, that he did it in the course of the performance of his duty”. Thus, when the accused executing a search warrant is resisted by the complainant, and subsequently charged by the latter with hurt and wrongful confinement, sanction was necessary as they could reasonably claim that in order to clear the obstruction what they did was in discharge of official duty. Whether they used more than reasonable force would be fittingly inquired into during the proceedings [Matajog Dobey v HC Bhari, AIR 1956 SC 44 : 1955 (2) SCR 925 : 1956 Cr LJ 140 : (1955) 28 ITR 941 ]. It does not matter if the acts were strictly necessary for the discharge of his duty. What has to be found out is whether the act and the official duty were so interrelated that one could postulate reasonably that it was done by the accused in the performance of official duty though possibly in excess of the needs and requirements of the situation [Prabhakarv Sinari v Shankar Anant Verlekar, AIR 1969 SC 686 : 1969 Cr LJ 1057 ; AD Parthasarathy v JS Khurdukar, AIR 1975 Cr LJ 1290 : 1975 (1) Andh WR 131 : 1975 Mad LJ (Cri) 152 (AP)]. It is only when the offence is either within the scope of the official duty or in excess of it that the protection is claimable [P Arulswami v State of Madras, AIR 1967 SC 776 : 1967 Cr LJ 665 (SC)]. The sine qua non for the applicability of section 197 is that the offence charged, be it one of commission, or omission, must be one committed by the public servant either in his official duty or under colour of his office held by him. It is the quality of the act that is important, and if it falls within the scope and range of his official duties, protection of section 197 will be attracted [SB Saha v MS Kochar, AIR 1979 SC 1841 : 1979 Cr LJ 1367 : (1979) 4 SCC 477 : 1979 SCC (Cri) 939 (cases discussed)].

The accused by refusing to record the information has not only omitted or neglected to perform his official duty but also thereby facilitated an offender to escape from the criminal liability. In such circumstances, the benefit of statutory provision under section 197, Code of Criminal Procedure, 1973 cannot be pressed into service [Rabindranath Satpathy v Hina Sethy, 2010 Cr LJ 60 (61) (Ori)].

It was alleged that the police officials had caused injuries to a woman resulting in her death. It was held that sanction was not required for prosecution as the alleged act could not be said to have been done in discharge of official duty. [Tejvir Singh v State of UP, 2009 Cr LJ (NOC) 1023 (All)].

Where the accused, a police officer beat a complainant who had approached him for registration of complaint

Page 20 of 39 [s 197] Prosecution of Judges and public servants.— no sanction was required for his prosecution [Padamma A v R Narsimha Rao, 2005 Cr LJ 1160 (AP) : 2005 (1) Andh LT (Cri) 495 ].

Where the property has been attached in discharge of official duty, even though in excess of authority, sanction under section 197 would be required [Ashok Kumar Tewary v State of Bihar, 2002 Cr LJ (NOC) 275 (Pat) : 2001 (4) Pat LJR 453 : 2001 (3) East CrC 386 ]. Where the sub-collector assaulted a teacher in school the act of the accused was not an act done in the discharge of official duty, sanction under section 197 was held not necessary [Biweswar Satpathy v Chandra Shekhar Kumar, 2004 Cr LJ (NOC) 133 : 2004 (1) Ori LR 439 : (2004) 27 OCR 151 ]. Where in proceedings under sections 107/116, Code of Criminal Procedure, 1973, the Magistrate wrongly confined a person without following the procedure of law, sanction under section 197 was held necessary for his prosecution [Deelip Bhikaji Lonawane v State of Maharashtra, 2003 Cr LJ 4008 (Bom) : 2003 (3) Crimes 146 : 2003 (2) Mah LJ 629 ]. Similarly where the accused, District Manager, Telephones abused and scolder the complainant for negligence leading to fire in the office, sanction was held necessary for his prosecution under sections 500 and 504, Indian Penal Code, 1860 [OP Gupta v State of Rajasthan, 2004 Cr LJ 3245 (3246) (Raj) : 2004 (3) Raj CrC 1146 ].

Use of the expression, “official duty” implies that the act or omission must have been done by the public in the course of his service and that it should have been in discharge of his duty. The Section does not extend its protective cover to every act or omission done by a public servant in service but restricts its scope of operation to only those acts or omissions which are done by a public servant in discharge of official duty. It has been widened further by extending protection to even those acts or omissions which are done in purported exercise of official duty. That is under the colour of office. Official duty, therefore, implies that the act or omission must have been done by the public servant in course of his service and such act or omission must have been performed as part of duty which further must have been official in nature. The Section has, thus, to be construed strictly, while determining its applicability to any act or omission in course of service. Its operation has to be limited to those duties which are discharged in course of duty. But once any act or omission has been found to have been committed by a public servant in discharge of his duty then it must be given liberal and wide construction so far its official nature is concerned. For instance a public servant is not entitled to indulge in criminal activities. To that extent the Section has to be construed narrowly and in a restricted manner. But once it is established that act or omission was done by the public servant while discharging his duty the scope of its being official should be construed so as to advance the objective of the Section in favour of the public servant [State of Orissa v Ganesh Chandra, AIR 2004 SC 2179 : 2004 Cr LJ 2011 : 2004 (8) SCC 40 : 2004 (2) Crimes 404 (SC)].

Where the eviction and demolition was done only in pursuance of orders issued by the Government of Tamil Nadu and in the capacity as public servant, sanction under section 197, Code of Criminal Procedure, 1973 to prosecute respondent was held absolutely necessary [State v Dr A Ganesan, 2010 Cr LJ 92 (94) (Mad) : 2010 (1) Mad LJ (Cri) 822].

Deriliction of duty.—

Where in a complaint against senior police officers of State, it was alleging commission of act in deriliction of their official duty, it was held that protection under section 197 was attracted [Debasis Panigrahi v State of Orissa, 2010 Cr LJ 1366 (1379) (Orissa)]. [s 197.21] Defamation.— A Cabinet Minister in State Government who, in an interview to the press, makes a defamatory statement about a private individual about a matter in his constituency is protected by section 197 and cannot be prosecuted without the Governor’s sanction for the charge of defamation. The remarks made by the Minister could be regarded as connected with the performance of duties as a Minister and as a State Legislator [Jagjiwan Lal v Kishen Chand Sharma, 1987 Cr LJ 1149 : 1986 Kash LJ 345 : 1987 (2) Rec Cr R 185 (J&K) : (1986) 13 Cr LJ 95 (J&K)].

Amount was received by the accused for purpose of getting a well constructed in capacity of Assistant Block

Page 21 of 39 [s 197] Prosecution of Judges and public servants.— Development Officer. No well was constructed at all. It was held that alleged offence under section 409 appeared to have been committed in discharge of official duties and therefore sanction was necessary [Todar Singh Prem v State of UP, 1992 Cr LJ 1724 : 1992 (1) Cur Cr R 407 : 1992 All Cr R 114 (All) (Surya Prasad J)]. Court cannot entertain a complaint for defamation alleged to have been committed by a public servant under the State Electricity Board without sanction under section 197, Code of Criminal Procedure, 1973 [Ramnath Goenka v AR Raj, 1982 Cr LJ 1153 : 1981 Mad LJ (Cri) 548 : 1981 Mad LW (Cri) 258 (Mad); Sri Baliram Singh v State of Bihar, 1990 Cr LJ 719 : 1989 (3) Crimes 736 : 1989 (2) BLJR 228 : 1989 Pat LJR 600 (Pat) (SN Jha J)]. [s 197.22] Filthy abuse.— Inspector of police abused persons who wanted to file a complaint. It was held that use of filthy abuses was not connected with the discharge of official duty. Sanction to prosecute was not necessary [GP Pedke v Syed Javed Ali, 1991 Cr LJ 1481 : 1991 APLJ (Cri) 370 (Bom) (MM Qazi J)].

Where a public servant demands payment of certificate dues, not from the debtor but for the debtor brother and uses filthy language threat is not integrally connected with official duties and sanction under section 197 is not necessary [Baidyanath Hathi v State of Bihar, (2000) Cr LJ 3249 : 2000 (3) Pat LJR 520 : 2000 (2) BLJR 1284 (Pat)]. [s 197.23] Bribe.— Complaint was that the police officer demanded bribe from petitioner, illegally restrained a relative of the petitioner and unlawfully took possession of his cycle and other articles without authority of law. It was held that demand or receipt of bribe by an officer is not an act in discharge of official duty. No seizure list prepared while taking cycle and other articles Presumption that police officer might have taken those articles for investigation purpose cannot stand. Sanction for prosecution not required [Kailash Chandra Mahanta v Ganeshwar Amanta, 1990 Cr LJ NOC 87 (Ori) (A Pasayat J)]. [s 197.24] Search memo.— Tampering by police officer with search memo in court custody is not connected with their official duties. Therefore, the previous sanction of the Lt Governor as provided in section 197(3) is not at all necessary for initiating the proceedings against them. [Balbir Singh v DN Kadian, AIR 1986 SC 345 : 1986 Cr LJ 314 : (1986) 1 SCC 410 : 1986 (1) Crimes 373 ].

While checking trucks and organising anti-evasion activities by the Sales-tax Officers as per directions of higher authorities, it was alleged in the complaint that the truck was stopped, the complainant was abused and slapped and RTO papers with regard to the truck were taken away.

It was held that the latter act of the officers was directly concerned or reasonably concerned with the official duties as to be inseparable from them, and the action was in discharge of their official duties or at least in the purported discharge of their official duties, and therefore, the officers concerned were entitled to get protection under section 197 [Karnalsingh Gill v State of Gujarat, 1988 Cr LJ 100 : (1987) 28 Guj LR 853 : 1987 CrLR 462 (Guj)]. [s 197.25] Assault.— Where a Minister assaulted an officer within Secretariat premises, the act is not connected with official duty. No sanction is needed. [Jatin Charkraborty v BK Chakraborty, 1989 Cr LJ 1802 : (1989) 93 Cal WN 627 : 1989 Cal CrLR 165 (Cal)]. [s 197.26] Diversion of grant.— A public servant was accused of diverting grant received for the School Board, towards other purposes of the Municipal Council (section 166, Indian Penal Code, 1860) Sanction is required [RL Singh v Vasantrao Sampatrao Ahire, 1986 Cr LJ 100 : 1985 (1) Bom CR 355 : 1985 Mah LR 374 (Bom)]. [s 197.27] Police Act.— Acts enjoined by section 60(c) of the Delhi Police Act or related thereto are acts connected with the discharge of official duties [Ran Singh v Shanti Sorup Monan, 1990 Cr LJ NOC 117 : 1990 Rajdhani LR 199 (Delhi) (Santosh DuggalJ)].

Page 22 of 39 [s 197] Prosecution of Judges and public servants.—

(As amended by Assam Amendment Act 3 of 1984). —

Sanction for prosecution refused in police case but granted in complaint case. [Mohan Raj v Dimbeswari Jaikia, AIR 2007 SC 232 : 2007 Cr LJ 52 ]. [s 197.28] NDPS Act.— There was not even a whisper or record which could suggest that the Inspector who conducted the search of the place of revisionist in one way or the other way abused his official position and committed an act which was not a part of his official duty. The question of sanction does not arise only when the act of complained of is an offence, but if the act has been committed by a public servant in the discharge of his official duty, the court is barred from taking cognizance of such an offence except with the previous sanction of the State Government or the Central Government as the case may be [Rakesh Gupta v State of Rajasthan, 2010 Cr LJ 2603 (2606) (Raj)]. [s 197.29] Guiding principles for application of Section 197.— The guiding principles deducible from authoritative decisions for the application of section 197 are: —

(5) The question of sanction arises only in the case of public servants removable by the Government (Union or State) or by its sanction and not when they are removable by any lower authority empowered to dismiss them, e.g., in the case of a policeman or an inspector or sub-inspector of police removable by the Inspector General of Police or the Commissioner of Police. [Nirmal Singh Khalon v State of Punjab, 2008 Cr LJ 4096 (4102) (P&H—DB)]. (6) When a public servant is charged with an offence, whether sanction is or is not necessary must be determined with reference to the allegations in complaint and not the defence that may be put forward [Horiram, AIR 1939 FC 43 : 1939 FCR 159 : 43 Cal WN 50 FR; Sarju Prasad v Emperor, AIR 1946 FC 25 : 1945 FCR 227 : (1946) 47 Cr LJ 838 : 1946 (1) Mad LJ 157; Ganga Pd, 39 Cal WN 288; Behari Rai v The State, AIR 1952 Pat 253 : 1952 Cr LJ 799 ]. This may not however always be the case as the complaint may not disclose all the facts for determining whether sanction is necessary, but facts subsequently coming to light or disclosed even in the course of prosecution evidence may establish the necessity for sanction [Matajog, supra]. But where the objection to sanction is raised after the trial has ended, it is open to the Appellate Court to decide that question on the findings arrived at by the court below [Dove, AIR 1944 N 337]. (7) A public servant can only be said to act or to purport to act in the discharge of his official duty if his act is such as to lie within the scope of his official duty [HHB Gill v The King, AIR 1948 PC 128 : 52 Cal WN 567 : (1948) 49 Cr LJ 503 : 1948 (2) Mad LJ 6 : 50 Bom LR 487 : 75 IA 41; Albert West Meads v The King, AIR 1948 PC 156 : 75 IA 185 : (1948) 49 Cr LJ 660 : 52 Cal WN 834 : 50 Bom LR 664]. Thus, embezzlement or criminal breach of trust or receiving bribe cannot be an act done or purporting to be done in the execution of official duty [see Horiram, supra; Gill, supra; Huntley, 1944 FCR 262 : 48 Cal WN 109 FC : A 1944 FC 66; Ronald Wood Mathams v State of WB, AIR 1954 SC 455 : 1954 Cr LJ 1161 : 1955 SCR 216 ; Lumbhardhar Zutshi v Emperor, AIR 1948 Bom 79 : (1948) 49 Cr LJ 4 : 49 Bom LR 609 : ILR (1947) Bom 538 ]. A public servant committing criminal breach of trust does not normally act in his capacity as a public servant [Om Prakash Gupta v State of UP, AIR 1957 SC 458 : 1957 Cr LJ 575 : 1958 (2) LLJ 645 : 1957 SCR 423 ]. But, not all cases of criminal breach of trust or misappropriation by public servants are outside the scope of section 197. Even when the charge is of misappropriation by a public servant, whether sanction is required will depend upon the facts of each case. If the acts complained of are inseparably connected with the duties attached to his office sanction would be necessary, but if there is no necessary connection between them, the official status furnishing only the occasion or the opportunity for the acts, then no sanction would be required [Amrik Singh v State of Pepsu., 1955 (1) SCR 1302 : AIR 1955 SC 309 : 1955 Cr LJ 865 (Horiram, supra and Meads, supra, distinguished); see also Sreekantiah Ramayya Munipalli v State of Bombay, AIR 1955 SC 287 : 1955 Cr LJ 857 : 1955 (1) SCR 1117 ante]. In order to attract section 197 there must be a reasonable connection between the act and the discharge of the official duty [Matajog Dobey v HC

Page 23 of 39 [s 197] Prosecution of Judges and public servants.— Bhari, AIR 1956 SC 44 : 1956 Cr LJ 140 : 1955 (2) SCR 925 ; Prabhakar Sinari v Shankar Anant Verlekar, AIR 1969 SC 686 : 1969 Cr LJ 1057 cited ante]. If section 197 is construed too narrowly it can never be applied, for of course it is no part of an official’s duty to commit an offence and never can be. But it is not the duty we have to examine so much as the act because an official act can be performed in the discharge of official duty as well as in dereliction of duty [Shreekantia, supra]. An assault by a public servant on a person or abuse by him can never be a part of an official’s duty, nor can the act be in discharge of his official duty [Behari Rai v State, AIR 1952 Pat 253 : 1952 Cr LJ 799 ; Sakuntala Bai v Venkatakrishna Reddi, AIR 1952 Mad 667 : 1952 Cr LJ 1295 : 1952 (1) Mad LJ 646 : 1952 Mad WN 842; Dowlath De v District Forest Officer, 1953 (2) Mad LJ 28 : AIR 1955 NUC (M) 424].

(8) A good test will be whether the public servant if challenged can reasonably claim that what he does, he does in virtue of his office [Gill, supra; Meads, supra; Phanindra Chandra Neogy v The King, AIR 1949 PC 117 : 76 IA 10 : (1949) 50 Cr LJ 395 : 1949 (1) Mad LJ 177 : 51 Bom LR 440; Baijnath Gupta v State of MP, AIR 1966 SC 220 : 1966 Cr LJ 179 (SC)]. The test is not merely the official character of the person doing the act, as Mahajan J, observed (in Chun Chun v State, which was decided by the Supreme Court on 4 October 1951: unless there is something in the nature of the act complained of that attaches to it the official character of the person doing it, the case would not fall within the ambit of section 197. [cited in Mahadeb Mukherjee v Jagannath Prasad Sinha, AIR 1952 Pat 389 : 1952 Cr LJ 1477 ]. See also Shreekantiah, supra, ante and Amrik, supra].

(9) The words “purporting to act” connote that the public servant means or intends or purports to act as such, or that his action conveys to the mind of another that he is acting as such [Lumbhardar Zutshi v Emperor, AIR 1948 Bom 79 , 86 : 49 Bom LR 609 : (1948) 49 Cr LJ 4 : ILR (1947) Bom 538 ; Horiram, 1939 FCR 159 , 178]. But an offence arising out of the abuse of official position by an act not purporting to be official, does not require sanction [Lumbhardar, supra; Sakuntala, supra; Kamisetty, 50 M 754]. So, also where an act done is illegal, it cannot be said to have been committed under colour or in excess of the duty as public servant [Hanmant, AIR 1929 B 373]. (10) It is clear that some offences cannot by their very nature be regarded as having been committed by public servants while acting or purporting to act in the discharge of their official duty, e.g., acceptance of bribe, or cheating or abetment thereof. The act of cheating or abetment thereof has no reasonable connection with the discharge of official duty. The act must bear such relation to the duty that the public servant could lay a reasonable but not a pretended or fanciful claim that he did it in the course of performance of duty [Satwant Singh v State of Punjab, AIR 1960 SC 266 : 1960 Cr LJ 410 : 1960 (2) SCR 89 ]. While the law regarding the circumstances under which sanction under section 197 is necessary has been well settled by decisions from Horiram, AIR 1939 FC 43 to Bhagwan Srivastava v N.P. Misra, AIR 1970 SC 1661 : 1970 Cr LJ 1401 : (1970) 2 SCC 56 (SC), the difficulty really arises in applying the law to the facts of any particular case. In this case the law has been very clearly explained in details [Pukhraj v State of Rajasthan, AIR 1973 SC 2591 : (1973) 2 SCC 701 : 1973 Cr LJ 1795 : 1974 (1) SCR 559 ]. (11) Sanction for prosecution is one of the defences available to the accused, who can raise such a defence at the appropriate time. The opening words of section 197(1) and the object sought to be achieved by it, clearly indicate that prosecution hit by that provision cannot be launched. It is a condition precedent for a successful prosecution against public servant [Jayant Kumar Pandiya v State of Rajasthan, 2007 (1) Crimes 630 (Raj)]. [s 197.30] “Official duty”.— Includes occasions when public servants are called upon to perform duties which do not fall strictly and literally within the tasks of the particular appointment then held [Nur Ahmed, 39 Cal WN 20]. Whether an act complained of is “official” or not has to be decided with reference to allegations in the complaint and not to what

Page 24 of 39 [s 197] Prosecution of Judges and public servants.— the pleas of the accused may be [Chamanlal, AIR 1967 Pu 51 (Nagraj v State of Mysore, AIR 1964 SC 269 : 1964 (1) Cr LJ 161 (SC) followed)].

Presence of police and Magistrate at the spot improbalises the allegation in the complaint regarding molestation showing of indecent conduct and looting from the premises of the apposite path by the petitioners. In addition, to that all the two petitioners did was to conduct a raid in due discharge of their official duty and therefore their act was squarely protected under section 197, Code of Criminal Procedure, 1973 [Raj Kishore Swain v Ranjana Maharana, 2003 Cr LJ 2095 : 2003 (24) OCR 535 : 2003 (1) Ori LR 284 (Ori)]. [s 197.31] Private acts.— Private acts of a public servant do not enjoy the protection of Section 197 [Premjit Mohananda v Mohan Pane Karua, (1996) Cr LJ 836 , 838 (Ori)]. [s 197.32] Instances of acts not done in discharge of official duty.— Taking of bribe by judge or any other public servant [HHB Gill v The King, AIR 1948 IPC 128 : 52 Cal WN 567 : (1948) 49 Cr LJ 503 : 75 IA 41 : 1948 (2) Mad LJ 6 : 50 Bom LR 487; Huntely, 1944 FCR 262 ; Lumbhardhar Zutshi v Emperor, AIR 1948 Bom 79 : 49 Bom LR 609 : (1948) 49 Cr LJ 4 : IRL (1947) Bom 538 : on appeal Lumbhardhar Zutshi v The King, AIR 1950 PC 26 : (1950) 51 Cr LJ 644 : 54 Cal WN 362 : 52 Bom LR 480 : 1950 (1) Mad LJ 302; Ronald Wood Mathams v State of WB, AIR 1954 SC 455 : 1954 Cr LJ 1161 ; Khurshed, 44 Cal WN 735; Rameshwar, AIR 1945 P 136]. Dishonest misappropriation or conversion of goods seized by public servant [SBSaha v MSKochar, AIR 1979 SC 1481 : 1979 Cr LJ 1367 : (1979) 4 SCC 477 (SC)]. Committing embezzlement or criminal breach of trust (section 409, Indian Penal Code, 1860) as he is not acting as an official but as a thief [Mg B, AIR 1935 R 263 FB; Horiram, AIR 1939 FC 43 ; Gill, supra; Captain JE Blythe v The King, AIR 1949 Cal 641 : 53 Cal WN 887 : (1950) 51 Cr LJ 10 ; Makhan Lal Sen Gupta v State, AIR 1958 Cal 517 : 1958 Cr LJ 1178 ; Gurushidayya, 1939 Bom 199; AIR 1939 B 63 : Gulabmiya, AIR 1930 B 487; Suraj Prakash, AIR 1945 FC 24 : 1945 FCR 90 : 49 Cal WN 55 FR : Mangharam, AIR 1941 SC 204 ; Prasanna Kumar Mohapatra v The State, AIR 1956 Ori 86 : 1956 Cr LJ 540 : ILR (1955) Cut 644 . See however section 5(1)(c) and section 6 of Prevention of Corruption Act (2 of 1947) which require sanction when the prosecution relating to bribe or under section 409, Indian Penal Code, 1860 is under that Act:see post, “section 197 and section 6 Prevention of Corruption Act”.

Forcibly snatching bags from the hands of the complainant without any ostensible reason [Ramesh Kumar Varma v State of Bihar, 2003 Cr LJ 617 : 2003 AIR Jhar HCR 206 : 2002 (4) Cur Cr R 370 (Jhar)]. Subdivisional officer beating complainant when he went to supervise the latter’s work [Ganga Pd, 39 Cal WN 288]; Post Master General at the time of his arrival for inspection kicking a clerk and abusing him while submitting representation for cancellation of his transfer [Pukhraj v State of Rajasthan, AIR 1973 SC 2591 : 1973 Cr LJ 1795 : (1973) 2 SCC 701 ]. Civil Surgeon abusing civil assistant surgeon before patients and hospital staff and ordering the hospital cook “to turn out this badmash” and the cook actually pushing him out [Bhagwan Pd Srivastava v NP Misra, AIR 1970 SC 1661 : 1970 Cr LJ 1401 : 1970 SC 1661 : (1970) 2 SCC 56 : 1970 SCC (Cri) 292 ]. Deputy Commissioner and District Superintendent of Police beating, abusing and assaulting some advocates and keeping them in confinement as they caught a Revenue Officer red-handed while taking bribe [Budhi Prakash Yadav v KC Sharma, 1981 Cr LJ 993 (P&H)]. Police officer abusing and assaulting a suspected person during investigation [Behari Rai v State, AIR 1952 Pat 253 : 1952 Cr LJ 799 ; Mukand Singh v Vishnu Prasad, AIR 1956 All 396 : 1956 Cr LJ 848 : 1956 All LJ 336 : 1956 All WR 259] or caning students suspected or even admitted to have committed an offence [Nagwant Sahay v DW Ife, AIR 1946 Pat 432 : (1947) 48 Cr LJ 217 : ILR 25 Pat 174], putting a person under unlawful restraint and assaulting him to obtain a statement [Ram Nath v Salig Ram Sharma, AIR 1967 All 519 : 1967 Cr LJ 1463 : 1967 All WR 170 : 1967 All LJ 362], or Deputy Superintendent of Police threatening complainant that he would arrest him if he interfered with the hawkers to enter upon his land and also that he would be slapped [Pravakar Sinari v Shankar Anant Verlekar, AIR 1969 SC 686 : 1969 Cr LJ 1057 ], or officials of State transport forcibly detaining and removing passenger to police station [Chamanlal Chopra v Mulakh Raj Pawa, AIR 1967 Punj 51 : 1967 Cr LJ 256 : 68 Punj LR 659 : 1966 Cur LJ 523 ], or a Customs officer assaulting a woman who refused to remove her gold bangles [Sakuntala Bai v Venkata Krishna Reddi, AIR 1952 Mad 667 : 1952 Cr LJ 1295 : 1952 (1) Mad LJ 646 : 65 Mad LW 470. The contrary view in Pollard, AIR 1943 C 594 (assault by Police Superintendent on a person insisting to make representation about arrested persons); Ahmed, AIR 1942 M 81 (beating of arrested person at police station under order of Asst Commissioner); Ram Singh, AIR 1935 P 52 (assault on a person by a Magistrate who went to execute distress warrant); Subbiah, AIR 1929 M 604 (assault by President of Panchayat Court on a litigant who protested against an order); Ramchandra, AIR 1942 M 664 and similar cases can no longer be regarded

Page 25 of 39 [s 197] Prosecution of Judges and public servants.— as good law in view of the interpretation of the section in HH B Gill v The King, AIR 1948 PC 128 : (1948) 49 Cr LJ 503 : 52 Cal WN 567 : 1948 All LJ 256 : 1948 FCR 19 : 1948 Mad WN 477 and other cases cited ante as it can in no circumstances be a part of official duty to beat or abuse persons]; Judge or Magistrate abusing or defaming a witness or a legal practitioner in the course of his work [Nandlal, 26 C 852; Baishnam, 25 Cal WN 987; Mahadeb Mukherjee v Jagannath Prasad Sinha, AIR 1952 Pat 389 : 1952 Cr LJ 1477 ; Nirode Behari Chakrabarti v Hirendra Nath Sen, AIR 1955 NUC (Cal) 569; Dowlath v Deputy District Forest Officer, AIR 1955 NUC 424 : 1953 (2) Mad LJ 28—The contrary view in Sukhdeo, AIR 1934 A 978 and Mewalal v Totalal, AIR 1957 MP 230 : 1957 Cr LJ 1413 : 1957 Jab LJ 782 : 1957 MPC 374 does appear to be good law; Sukedeo, was dissented from in Mukand, supra].

Hiring out of Government lorries to private contractors [Doraiswamy, AIR 1949 M 16] : Making furniture for himself out of Government materials in a public servant’s charge [S Banerjee v State, AIR 1951 Cal 388 ]. Intimidating or assaulting persons to obtain subscriptions for National Savings Certificate [Khimgir v Muhammad Bilawal Abdul Kassim, AIR 1947 Sind 60 : (1947) 48 Cr LJ 573 ; Narayana, 32 Cr LJ 575]. Mukhtiarkar abusing or assaulting the complainant [Devidas Kewalram v Emperor, AIR 1947 Sind 30 : (1947) 48 Cr LJ 221 ]; forming unlawful assembly and causing hurt [Hansraj Singh v Rex, AIR 1949 Cr LJ 632 : (1949) 50 Cr LJ 958 : 1949 All LJ 366 : 1949 All WR 514]; Kulkarni forcibly removing an alleged encroachment and assaulting the encroachers [Hanmant, 31 Cr LJ 353; Abdul Rahiman, 17 Cr LJ 462]; Administrator-General to the estate of a deceased not removing a privy [Corp of Calcutta, 30 C 927]; Police officer instigating one to file a false complaint of theft against a person and arresting and confining the latter person [Nandiram Fatechand v Emperor, AIR 1948 Sind 114 : (1948) 49 Cr LJ 454 ]. Criminal conspiracy by police officers to suppress evidence of murder or screening offender from legal punishment [TV Sarma, AIR 1980 AP 219 FB]. Threatening a voter with injury to induce him to vote for a candidate [Rajarao, AIR 1927 M 566]. Railway servants committing theft, wrongful confinement etc., when taken as search witnesses [Dhannjayram Sharma v MS Uppadaya, AIR 1960 SC 745 : 1960 Cr LJ 1153 ]. Public officer giving false evidence before a Commission appointed under Act 37 of 1950 [Jadunath, AIR 1940 C 274]. President Panchayat Board committing offence under section 409, Indian Penal Code, 1860 [Vaidyanatha, AIR 1961 K 175]. Public servant and administrative head of milk project supplying adulterated milk [MCS Reddy v The State, 1975 Cr LJ 1015 : 1975 (2) Andh WR 138 : 1975 Mad LJ (Cri) 481 (AP)]. Enforcement officer on refusal of complainant-respondent to accede to his demand for payment of Rs 100 as illegal gratification showering filthy language on him and further directing his peon to tear off his turban and hold him by his long hair and thereafter illegally detaining him in an adjoining room and torturing him to make him to apologise to him in writing [NP Sahai, 76 PLR 687]. When the averments in the complaint against police officer for torture in police station do not show prima facie that the acts of torture attributed to him have any direct relation to the discharge of his official duty, sanction is not necessary [Lakshmana Kunjhan v CR Sulochana, 1978 Cr LJ 522 (Ker) : 1977 Ker LT 858 : 1978 Mad LJ (Cri) 114; (State of Maharashtra v Atma Ram, AIR 1966 SC 1786 : 1966 Cr LJ 1498 relied on) in a letter to District Judge, Magistrate calling an Advocate as “rowdy”, “a big gambler” and “a mischievous element” sequel to advocate filing a transfer petition [BS Sambhu v TS Krishnaswamy, AIR 1983 SC 64 : 1983 Cr LJ 158 : (1983) 1 SCC 11 : 1983 (1) Crimes 914 (SC)].

Taking away of the complainant from his land to the Range office with a view to obtain signature on the blank sheet of paper and keeping him confined with this object in view, inside the office cannot be said to have been done by the accused in discharge of their official duty and therefore, no sanction is required for prosecution [Abdul Gaffar v Raman Das, 2003 Cr LJ 1145 : 2003 (7) All Ind Cas 714 : 2003 (2) Gau LT 17 : 2003 (1) Gau LR 431 (Gau)].

Both the applicants were working as junior clerks in the police department. They were sought to be prosecuted on the allegations in the FIR that the candidates who were called for the purpose of recruitment in the police department were put to written test and the accused were charged of interpolation of marks and favouring certain candidates by issuing interview calls for extraneous consideration. It was held that the said acts of accused could not be said to be in discharge of official duties and sanction under section 197, Code of Criminal Procedure, 1973 was not necessary [Suresh Ruprao Khandar v State of Maharashtra, 2003 Cr LJ 2219 : 2003 (3) Mah LJ 208 : 2003 (3) Rec Cr R 544 (Bom)].

Sanction is not needed for prosecuting a Sarpanch of a Gram Panchayat for misappropriation and cheating.

Page 26 of 39 [s 197] Prosecution of Judges and public servants.— These are personal offences, not connected with official duty [Sarat Chandra Dehury v Sankirtan Behera, 1989 (1) Ori LR 321 : (1989) 67 Cut LT 608 : 1989 Cr LJ NOC 162 (Ori)].

Offence of cheating or abetting another so to cheat is not in discharge of official duty [Manohar Nath Kaul v State of J&K, AIR 1983 SC 610 : 1983 Cr LJ 988 : (1983) 3 SCC 429 : 1983 (1) Crimes 1165 (SC)].

The Magistrate has not touched the matter with regard to the oral and documentary evidence placed on record by the respondent-1. The Magistrate has dismissed the complaint solely on the ground of non-obtaining of sanction to prosecute the petitioners. The Magistrate has not at all considered the specific allegation of the respondent that the petitioners have forged the document with the sole intention to cheat him. Therefore, the Sessions Judge in his order has rightly held that in spite of legal notice issued to the petitioners, the petitioners have not made any payments about the repair works turned out by the respondent-1. The Sessions Judge by relying on the latest decision of the court reported in the case of SJayappa v State of Karnataka, ILR 1999 Kant 3056 : (1999) Cr LJ 4475) has rightly set aside the order under challenge under section 482 of the Code of Criminal Procedure, 1973 and remanded the matter back to the Trial Court to consider afresh. The court in the above said decision has held that, when a public servant fabricates the document with a sole intention to cheat and misappropriate the public funds then prior sanction is not required to prosecute the Government servant [S Hiremath v Veerabhadragouda, 2004 Cr LJ 3607 : 2004 AIR Kant HCR 2595 : 2004 (4) All CrLR 439 (Kant); State of UP v MP Gupta, AIR 2004 SC 730 ; Akhil Kumar Sinha v State of Jharkhand, 2005 Cr LJ 3071 (Jhar) : 2005 (4) JLJR 323 : 2005 AIR Jhar HCR 1305].

Apparently there can be no reasonable connection between the act and discharge of the official duty if an accused police officer pours tea an the head of a retired Hawaldar and also gives him a sound beating for the purpose of relieving him of some money and committing an offence under section 394, Indian Penal Code, 1860 [Om Prakash Chatak v State of UP, 2005 Cr LJ 2739 (All)].

Where the accused, a sub-inspector of Police official assaulted an old person it was held that the act of the accused was not an act connected with the discharge of official duty and, therefore, no sanction under section 197 was necessary for prosecution of accused [Dhiren Baishya v State of Assam, 2005 Cr LJ (NOC) 109 (Gau)].

When the police officer assaulted accused in police custody it was held that no protection could be sought under the garb that sanction to prosecute should be obtained. [Bajrang Parab v State of Maharashtra, 2006 Cr LJ 4577 (Bom) : 2006 (2) Bom CR (Cr) 894 ; P Prakash v State of Kerala, 2011 Cr LJ 2572 (Ker)].

Public servant making or omitting to make entries (