B.A. LL.B.

(H) SEMESTER- VIII EXAMINATION 2020

CODE OF CRIMINAL PROCEDURE - 1

ONLINE EXAMINATION-ANSWERS

Differentiate between compoundable and non-compoundable offences. Explain the

power of the High Court to allow compromise/settlement in non-compoundable
offences. Refer to case Laws.

ANSWER 1

The main object of the law and order is to protect the society by penalizing those who breach
the law which should be done with due regard to equity, justice, and fair play. Therefore, a
trial proceeding is established to determine the guilt of the alleged accused in a fair and
reasonable manner.

The word offence is derived from a Latin word “offendere”, which means to strike again and
is considered as an evil act. In terms of law it is an act which is punishable by law. Under
Indian criminal law, there are two definitions provided for the offence.

First, under Criminal Procedure Code under section 2 (n) which states that 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 and second in Indian penal Code under section 40 which states that offense” denotes a
thing made punishable by this Code. The relationship between crime and offense is that
offense is included in crime therefore offense is narrower than crime.

There are different ways in which offences can be classified, two such ways are
compoundable and non- compoundable offences.

Compoundable Offence:

It means the disputes between parties settled by agreement. The aggrieved person receives
some consideration or gratification for not prosecuting the accused. Section 320 of the Code
of Criminal Procedure provides a list of compoundable offences punishable under different
sections of the Indian Penal Code. In cases mentioned in Section 320(1) of the Code,
composition effected without the permission of the Court. In cases mentioned in Section
320(2) of the Code, composition effected with the permission of the Court. A composition
means arrangement of settlement between the aggrieved party and accused person. If both the
parties agreed to settle the dispute or compromise, then court disposes the case. Compromise
and compounding cannot be equal.

Compoundable offences include less serious criminal offences and of two different types

mentioned in the code and they are:

1. Court permission required before compounding.

2. Court permission not required before compounding.

Application for compounding the offence shall be made before the same court before which
the trial proceeding going on. Once an offence compounded it shall have the same effect, as
if, the accused acquitted of the charges.

Examples:

 Uttering words etc, with deliberate intent to wound the religious feelings of any
person causing hurt.

 Criminal or house trespass

 Criminal breach of contract of service.

 Printing or engraving matters, knowing as defamatory.

Non-Compoundable Offence:

Offences other than those mentioned in Section 320 of the Code are not compoundable.
Section 320 of the code is ‘exhaustive’ of the circumstances and conditions under which
composition can be affected. If a criminal case is declared to be non-compoundable, then it is
against public policy to compound it, and agreement to that end is wholly void in law. The
High Court in exercise of its inherent powers cannot permit compounding of non-
compoundable offences, only in special cases the Supreme Court can grant such permission.

Examples: 

 Voluntarily causing hurt by dangerous weapons or means.

  Causing grievous hurt by doing on act so rashly and negligently as to endanger human
life or the personal safety of others.

 Wrongfully confining a person for three days or more.

 Assault or criminal force to woman with intent to outrage per modesty.

 Dishonest misappropriation of property.

Difference between Compoundable and Non-compoundable offence

1. Withdrawal of Charges: In compoundable offence, charges against the

accused can withdraw. While in non-compoundable offence, the charges
against the accused cannot withdrawn.
2. Nature of Crime: In compoundable offence, the nature of the crime not so
serious. While, in non-compoundable offence, the nature of the crime is
serious.
3. Compoundable: In compoundable, offence compoundable by with
permission or without permission of court. While in non-compoundable
offence, offence cannot compound. It’s only quashed.
4. Affected parties: In compoundable, impacts only private person. While in
non-compoundable offence, affects both, private person as well as the society
at large.
5. Filing of case: In compoundable offence, case generally filed by private
person. While in non-compoundable offence, case generally filed by the state.

A compromise is an agreement between two or more parties to settle their differences

amicably, by avoiding a lawsuit.

Section 482 of CrPC, gives the High Court inherent powers to deal with matters in order to;

 to give effect to any order under CrPC, or

 to prevent abuse of the process of any Court or

 to secure the ends of justice.

Dealing with the question of power of high court for compromise of non-compoundable
cases, number of cases are there to answer it.
Starting from the beginning in the case Y. Suresh Babu v. Andhra Pradesh, 1987 and
Mahesh Chandra v. Rajshthan, 1988 in both these cases power of high court for
compromise was allowed beyond any limit. However, in Ram pal v. Jammu and Kashmir,
it was held that those offences not given in the table cannot be compounded.

In this respect there is a landmark judgement of B.S.Joshi and ors. V. State of Haryana and
Anr from Hon’ble Supreme Court, which laid down the law that under CrPC 482, High
courts can quash a FIR or non-compoundable case such as 498A and 406 IPC.

This case was again reiterated in Madan Mohan v, Punjab, 2008 in which HC declined
prayed of quashing of offences under sc. 379,406,409,418 and 506 of IPC despite
compromise. SC overturned it citing B.S Joshi.

In another case of Nikhil Merchant v. CBI, 2008, this case also relied on B.S.Joshi held
compromise even on non-compoundable can be ground of quashing proceedings and that
quashing on ground of compromise is not the same thing as compounding of offences.

Another famous case for this is the case of Gyan Singh v. State of Punjab, 2010 in which
the 2 judge bench doubted B.S. Joshi, did not allow compounding of non-compoundable
offences, said judiciary can’t go beyond legislature and referred the same to the larger bench
which in the year 2012 in which the SC upheld B.S. Joshi etc with exception which was that
High court must refrain from quashing criminal proceedings in case of compromise if the
case involved is a heinous or serious offence or when public interest is involved.

In the case of Shimbu v. State of Haryana, 2013, in this the HC held that compromise
entered into between parties is not a leading a factor based on which lesser punishment can be
awarded. Rape is non-compoundable and offence against society and not a matter left for
society to settle.

In recent cases of Saurav Sharma v. State of Uttarakhand, 2018, HC allowed quashing on

basis of compromise but not in the case of Faizan Amir Khan v. Maharashtra, 2018 where the
offence involved was that of rape, which impacts society and the compromise done was also
suspicious.

Another case of state of M.P. v. Lakshmi Narayan, 2019, the 3 judge bench said while
exerting power under section 482 CrPC to quash proceedings for non-compoundable offence
which are private in nature and do not have serious impact on society, on ground of
compromise the High court is required to consider the antecedents of the accused i.e. if
absconding and why absconding, how he managed compromise with complainant.

Therefore, the above-mentioned cases are to be taken into consideration when the High Court
is quashing a proceeding because the parties have arrived at a compromise in a non-
compoundable offence. The Supreme Court under a bench of Justices R.Banumathi and A.S.
Bopanna in the case of Manjit Singh vs. State of Punjab,2019 held that it would not be
appropriate to ignore and keep aside statutory provisions in order to allow compounding of an
offence that is not compoundable under the law. However, they also said that while
sentencing the accused for a non-compoundable offence, the compromise entered into
between the parties is indeed a relevant circumstance for considering the quantum of
sentence.

Discuss the procedure of arrest. What are the rights available to an arrested person at
the time of arrest? Explain with the help of judicial pronouncements

ANSWER 2

The term arrest has not been defined in the code of criminal procedure, but by arrest it is
meant “a seizure or forcible restraint; an exercise of the power to deprive a person of his or
her liberty, the taking or keeping of a person in custody by legal authority, especially, in
response to a criminal charge.”

The elements necessary to constitute arrest were summarized by the Madras High Court in
Roshan Beevi v. Joint Secy. to the Govt. of Tamil Nadu, 1984 as:

 There must be an intent to arrest under legal authority;

 There must be seizure or detention of the person;

 The person must be in the lawful custody of the arresting person; and

 The act of arrest must include the actual confining of the person and not mere
oral declaration of arrest.

Arrest of a person can be with or without a warrant of arrest by a court of law.

Three persons under the code are given the authority to make an arrest, they are as follows:

1. Police officer
 2. A magistrate (whether judicial or executive)

3. A private person

Section 46 of the code of criminal procedure provides for the procedure to be followed in
arresting a person.

The section empowers the police officer to touch the body of the person to be arrested unless
he submits to the custody either by action or by word. The section further empowers the
police officer to use force if the person resists arrest, but the authority to use force does not
extend to causing death of the person who is resisting arrest unless he is accused of a crime
punishable with death or life imprisonment.

It contemplates three mode of arrest:

 Submission of the arrested to the custody by word or action.

 Touching of the body of the person to be arrested

 Confining the body of such person

The Supreme court while commenting upon the procedure of arrest under section 46 of the
code of criminal procedure has held in State of UP V. Deoman Upadhyaya, 1960 that when
a person not in custody approaches a police officer investigating an offence and offers to give
information leading to the discovery of a fact, having a bearing on the charge which may be
made against him he may appropriately be deemed to have surrendered himself to the police.
Section 46 of the Code of Criminal Procedure does not contemplate any formality before a
person can be said to be taken in custody: submission to the custody by word or action by a
person in sufficient. The court however did take note of the fact that there might be
circumstances where a person may approach a police officer with information leading to
discovery of fact which have a bearing on a charge which may be made against him, but it
would not amount to surrender and thus no arrest can be said to have taken place for example
approaching a police officer through phone or writing a letter.

The Patna high court in Santokhi beldar V emperor 1933 has held that When a person
states that he has done certain acts which amounts to an offence, he accuses himself of
committing an offence and if makes this statement to a police officer as such he submits to
the custody of the police officer within the meaning of section 46(1) of code of criminal
procedure.
The madras high court has observed in Roshan Beevi V state of Tamil Nadu 1984 that the
essential elements to constitute an arrest in the above sense are that there must be an intent to
arrest under the authority, accompanied by a seizure or detention of the person in the manner
known to law, which is so understood by the person arrested.

The importance of noting the observations is that it makes clear that using force against a
person who is sought to be arrested will not be justified and will be unlawful if the person
sought to be arrested submits to the police officer himself either by words or by action.

However, at the same time it is important to remember that mere oral declaration by a police
officer about arrest or expression of intention in any form, to arrest someone does not by
itself constitute arrest.

The code of criminal procedure was amended in 2005 to insert clause 4 to section 46 which
provides that a woman shall not, except in extraordinary circumstances, be arrested after
sunset and before sunrise.

In Kavita Manikikar v. CBI, 2018 the Bombay High Court decided that non-adherence to
the provisions of Section 46(4) of the Criminal Procedure Code would amount to illegal
arrest.

Rights available to the person at the time of arrest.

Section 60A of the Code clearly mandates that 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.

Arrested persons in India have various statutory and constitutional rights, but the most
important rights which the arrested persons have immediately at the time of their arrest are
discussed below:

1. Right to know grounds of arrest

Section 50(1) of CrPC says that when a person is being arrested he shall be informed
of the full particulars of the offence and other grounds on the basis of which he is
being arrested.

Section 75 of the CrPC provides that when a person is arrested the basis of an arrest
warrant, the substance of the warrant shall be communicated to him and if required
the warrant shall be shown to him.
 The Allahabad high court in Udaybhan Shuki V State of UP 1999 while
commenting on the person`s right to know the grounds on which he is being arrested
has observed that “Section 50 of the Cr.P.C. states that 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.
This provision flows from the Constitution of India as provided in Article 22. This
Article protects a citizen against arrest and detention in certain cases and states that no
person who is arrested shall be detained in custody without being informed, as soon as
may be, of the grounds of such arrest. Article 21 of the Constitution protects personal
liberty of a citizen and states that no person shall be deprived of his life or personal
liberty except according to procedure established of law. Section 50(1) Cr.P.C. is such
a procedure established by law and it echoes the requirement of Article 22 that a
person after being arrested is to be informed the grounds for such arrest.”

The Supreme court has observed in Madhu Limaye V Unknown on 1968 that
“The two requirements of clause (1) of Article 22 are meant to afford the earliest
opportunity to the arrested person to remove any mistake, misapprehension or
misunderstanding in the minds of the arresting authority and, also, to know exactly
what the accusation against him is so that he can exercise the second right, namely,
of consulting a legal practitioner of his choice and to be defended by him. Clause (2)
of Article 22 provides the next and most material safeguard that the arrested person
must be produced before a Magistrate within 24 hours of such arrest so that an
independent authority exercising judicial powers may without delay apply is mind to
his case.”

The Supreme court has observed in Harikisan V State of Maharashtra 1962 that
mere communication of grounds of arrest to the accused person in any language, be it
even the official language of the state, is not sufficient, the grounds of arrest have to
be communicated to the arrested person in the language he understands.

2. Right to be informed of the right to release on bail

Section 50(2) of the code of criminal procedure provides that when a person is
arrested without a warrant for a bailable offence, he shall be informed of his right to
be released on bail so that he can arrange for sureties.
 In the case of Babu Singh v. State of UP 1978, the Supreme Court held that bail is
rule and jail is an exception.

3. Right to have someone informed about the arrest

The supreme court in D.K Basu V State of WB 1997, made mandatory the following:

a. A person who has been arrested or detained and is being held in custody in a
police station or interrogation center 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.

b. 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 8 to 12
hours after the arrest.

c. 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

The code of criminal procedure was amended in 2005 and section 50-A was
inserted to provide for these rights as were recognized by the supreme court.

4. Right against Self Incrimination

Article 20(3) of the Constitution of India guarantees every person the right against
self-incrimination, it has been stated under this article that no person, who has been
accused of an offence, shall be compelled to act as a witness against himself. Right of
an arrested person starts immediately from the time of arrest, there cannot be any
delay in granting of constitutional rights.

5. Right to be taken before a magistrate without delay

A person whether arrested with or without a warrant has the right ( as provided by
section 76 and section 56 of the code respectively) to be taken to a magistrate without
unnecessary delay, and the delay shall not exceed 24 hours excluding the time
required to take a person to the magistrate`s court.
 6. Right to consult a legal practitioner

The right to consult a legal practitioner is a constitutional right as provided in article

22 of the constitution. Section 41D of the Cr. P. C. allows prisoners to be able to
consult with their lawyers even during their interrogation. Section 303 of Cr. P. C.
allows every alleged convict/ criminal the right to be defended by a lawyer of his
choice even if the criminal proceedings against him have already begun. The Supreme
court has observed in Moti Bai V The State 1954 that the right to consult the begins
from the time of arrest.

Discuss the provisions related to the search with warrant and without warrant.

ANSWER 3

Section 93-98 of CRPC deal with the law relating to search warrants in India.

The Supreme Court in Kalinga Tubes Ltd. v. D. Suri defined Search Warrant as:

‘Search warrant is a written authority given to a police officer or any other authority by a
Magistrate or Court for conducting the search of a place either generally or for specified
items or documents or for persons who have been wrongfully detained.’

Section 93 of the code provides for the circumstances under which a search warrant can be
issued. Before a search warrant can be issued to a person under section 93 the court has to
satisfy itself that the person will not produce the document or the thing if summons to
produce the same are issued under section 91, or if summons under section 91 have already
been issued and the person has failed to produce the document or thing. Thus, a search
warrant cannot be issued to a person under section 93 if no summons can be issued to him
under 91. The supreme court has held that an order or summons to produce a thing or
document under section 91 cannot be issued to an accused person as it would be violation of
right against self- incrimination. Now since an order or summon under section 91 cannot be
issued to an accused it follows that a search warrant cannot be issued an accused under
section 93 as well.

The requirement of prior summons or order under section 91 or the satisfaction that even if
such summons or orders be issued they will not be obeyed does not apply to search warrant
issued under section 93(1)(b) for a particular document or thing not known to the court to be
in possession of any person or while issuing a general search warrant under section 93(1)(c)

Any premises even if in the possession of an accused can be searched if the search warrant
has been issued under section 93(1)(b) and general search warrant issued under clause (c) to
subsection 1 of section 93, the premises even if in the possession of an accused can be
searched.

The supreme court in M.P Sharma V Satish Chandra 1954 has held that search of the
premises in possession of accused on the basis of warrant issued under clause(b) and (C) will
not be violation of constitutional right against self-incrimination.

Since the word investigation has been omitted in section 93(1)(C) the Court cannot when
acting under Clause (c) order the seizure and production of documents for the sole purpose of
enabling the police to collect evidence or to search for evidence.

For a search to fall outside the category of general search and to be covered within clause (b)
it must relate to a particular document or thing specifying the same as far as may be possible.
It is not necessary, however, that the search should be confined to a single document or thing,
nor is it necessary that the specification should be in any sense precise or give the exact
description of each and every one of the documents to be seized. If the said criteria is
satisfied the search will be covered by clause (b) and such a search can be held in furtherance
of a police investigation.

The court before issuing a search warrant must have reasons to believe that the person to
whom summons under section 91 of the code has been issued will not or would not produce
the document or thing. The expression “reason to believe” would mean that there must be
some justifiable grounds for the court to form that opinion and a mere suspicion cannot take
place of justification to have the opinion.

Further the use of word “may” in section 93 indicates that the magistrate has a discretion to
issue or not to issue search warrant under section 93. It may be stated that the words "reason
to believe" coupled with other words contemplate an objective determination based on
intelligent care and deliberation involving judicial review as distinguished from a purely
subjective consideration. This function being judicial, it necessarily follows that the
Magistrate has to apply his mind judicially.
It follows that it is not the subjective satisfaction of the Magistrate, but the satisfaction must
be objective. The satisfaction is justiciable and therefore reasons in support of the satisfaction
must be contained in the order itself in order to ascertain whether the Magistrate, who issued
the order had such satisfaction.

Under section 94 a search warrant can be issued if a place is suspected to contain

objectionable articles to which that section applies. A warrant under section 94 can be issued
by a district magistrate, sub-divisional magistrate or a magistrate of first class.

Section 97 gives the power to issue search warrant if the magistrate, sub-divisional
magistrate or magistrate of first class has reasons to believe that a person has been confined
in a particular premise, and such confinement amounts to an offence.

Section 98 gives similar powers to issue search warrants upon a complaint on oath of the
abduction or unlawful detention of women or a female child under the age of 18 years for any
unlawful purpose.

To exercise powers under both sections 97 and 98 the court needs to satisfy itself that the
circumstances to issue a search warrant exist, the court is not required to make a detailed
inquiry.

Search without a warrant

Section 103, 165 and 166 of the code of criminal procedure deal with search without a
search warrant.

Section 103 gives magistrate the power to direct a search in his presence of any place of
which he is competent to issue a search warrant.

In Melicio Fernandes V Mohan 1966 the court explained the rationale behind allowing
searches without warrants, the court said “a citizen should have in his house a full and free
life undisturbed by any executive or administrative action. However, in the larger interests of
the administration of justice, it becomes necessary that public officers engaged in
investigations and inquiries related to offences or suspected offences should be afforded fair
and reasonable opportunities for searches”

Generally, a search can be conducted only by an authority if a judicial officer. Nevertheless,

Section 165 of the Code is an exception to this general rule. This provision recognizes that
“in certain exceptional emergencies, it is necessary to empower responsible police officers to
carry out searches before applying for a warrant to the court”

An analysis of the provision will show that:

a. The power to search under this Section can be exercised only by the officer-in-charge
of the police station or any officer specifically authorized by such officer-in-charge,

b. The search must be for specific documents or things or materials and not be a general
search,

c. The police officer conducting the search must have reasonable grounds to believe that
any specific material or document may be found in that place and it cannot be
otherwise obtained without undue delay.

d. Lastly, the police officer must record in writing the ‘reasonable grounds’
aforementioned and provide a copy of the search and seizure memo to the person in
possession of the place of search.

Section 166 enables a police officer to effectuate the search of a place located beyond the
limits of his own police station if the extremity so requires. The provision includes two
aspects of search without a warrant.

Firstly, when a police officer conducting the investigation has reason to believe that certain
relevant document or material things can be obtained from a place beyond the jurisdiction of
his police station, such officer may ask any other police officer of the police station that has
jurisdiction over such place to make the search on his behalf. The officer so required to make
a search can proceed according to Section 165 and transmit any document or thing found
from such search to the police station where the offence was committed.

Secondly, if the police officer has reason to believe that the delay occasioned by requiring an
officer-in-charge of another police station to cause a search to be made as mentioned above
will result in the concealment or destruction of any evidence, the police officer may himself
search such place out of the limits of his police station and such search will not be unlawful.

Whether a search is made on the basis of warrant or without a warrant, provisions of section
100 of the code of criminal procedure will apply in both cases.
Explain the importance of First Information Report (FIR) in criminal proceedings.
Whether any person can be convicted on the basis of FIR? Elaborate with the help of
decided cases.

ANSWER 4

FIR means ‘First Information Report.’ FIR is the first document prepared in criminal
proceedings. It is a document that places on record the victim's side of the story. It acts as a
tool on which police authorities base and start their investigations. Hence, it is pretty clear
that a FIR plays a vital role in criminal proceedings. The term FIR (First Information Report)
is not defined in CrPC, it is only used under section 207 (1) (ii). FIR is the first information
relating to commission of crime and the purpose to set the criminal law into motion. Hence, it
is pretty clear that an FIR plays a vital role in criminal proceedings.

Any person can give information to the police officer relating to the cognizable offence, and
section 154 of the code provides for the manner in which such information is to be recorded.

Section 154 brings out the following points:

1. Information to be given to the officer in charge of a police station having jurisdiction

for investigating the case. [S. 154(I)]

2. Information given orally should be reduced to writing. [S. 154(I)]

3. The information shall be signed by the informant if reduced to writing. [S. 154(I)]

4. The information taken down in writing shall be read over to the informant. [S. 154(I)]

5. The informant shall be given a copy of the recorded information. [S.154(2)]

The Hon’ble Supreme court of India in Lalita Kumari v. State of UP, 2014 case has
answered in affirmative with respect to the mandatory registration of the FIR in cognizable
offences and has held that action will be taken against the police officer in case of failure in
registration of the FIR.

However, when no case of cognizable offence can be made out then the police may conduct a
preliminary inquiry with respect to the information received.

The aim for registration of the information received in relation to cognizable offence is that
there is no ornamentation etc later. The object is to ensure transparency and to ensure judicial
oversight.
This obligation of registering FIR has several advantages to it

1. First step to access to justice for a victim

2. Upholds the rule of law

3. Facilitates swift investigation

4. Avoids manipulation

It is worth stressing here that an information to have the status of FIR under section 154 must
be an information relating to the commission of cognizable offence and it must not be vague
but definite enough to enable the police to start the investigation. (State of Haryana v.
Bhajanlal, 1992)

Sometimes it may happen that more than one person go at or about the same tome and make
statements to the police officer about the same cognizable offence. In such a situation
common sense shall prevail and any one of the statements be recorded as FIR.

Now a days FIR can also be electronically transmitted.

It is important the FIR recorded should be done before the commencement of the
investigation. All the provisions relating to the FIR to a large extent ensure its accuracy.

Talking about the conviction on the basis of FIR we have to look into its evidentiary value.

FIR as such is not substantive evidence. It may be used to corroborate the informant under
S.157 of the Evidence Act or to contradict him under S.145 of the Act, if the informant is
called as a witness.

The main reasons why FIR does not have any substantive evidentiary value:

1. Because the statements in the FIR are not made on oath.

2. Because the statements in the FIR are not made during the trial or at
the time of proceedings.
3. Because the statements recorded in FIR has no cross-examination in
the Court.
4. Because the statements recorded by the police officers are not
admissible in court.

Section 157 of the Evidence Act is as follows: “In order to corroborate the testimony of a
witness, any former statement made by such a witness relating to the same fact, at or about
the time when the offence took place, or before any authority legally competent to investigate
the fact may be proved.”

Further, Section 145 of the Evidence Act provides: “A witness may be crossed-examined as
to previous statements made by him in writing or reduced into writing, and relevant to
matters in question, without such writing being shown to him, or being proved; but if it is
intended to contradict him by the writing, his attention must, before writing can be proved, be
called to those parts of it which are to be used for the purpose of contradicting him.”

The FIR should be lodged with the police at the earliest opportunity after the occurrence of
the cognizable offence. The FIR can have better corroborative value if it is recorded before
there is time and opportunity to embellish or before the informant’s memory fails. Undue or
unreasonable delay in lodging the FIR therefore, inevitably gives rise to suspicion which puts
the court on guard to look for the possible motive and the explanation and consider its effect
on the trustworthiness or otherwise of the prosecution version. The fact that the FIR does not
contain the names of the accused or of the eyewitnesses, is normally an important
circumstance, but the omission loses its significance if the FIR is from a person other than an
eyewitness.

It was held in Pandurang Chandrakant Mhatre v. State of Maharashtra, (2009) SC that it

is fairly well settled that first information report is not a substantive piece of evidence and it
can be used only to discredit the testimony of the maker thereof and it cannot be utilised for
contradicting or discrediting the testimony of other witnesses. Although first information
report is not expected to be encyclopaedia of events, but an information to the police to be
“first information report” under Section 154(1) must contain some essential and relevant
details of the incident. A cryptic information about commission of a cognizable offence
irrespective of the nature and details of such information may not be treated as a FIR. A FIR
recorded without any loss of time is likely to be free from embroideries, exaggerations and
without anybody intermeddling with it and polluting and adulterating the same with lies. The
purpose of, FIR is to obtain the earliest account of a cognizable offence, before there is an
opportunity for the circumstances to be forgotten and embellished. It is well settled that FIR
is not a substantive piece of evidence and can be used to corroborate or contradict the
statement of the maker thereof. It is also equally established that trustworthiness of the
prosecution story can also be judged from the FIR. Besides first information report is relevant
as it may be a part of the res gestae.
If F.I.R. is made by accused himself then it could be used as per the normal rules of evidence
unless it is in the nature of a confession, as then it will be hit by Section 25 of the Evidence
Act, which states that “no confession made to a police officer shall be proved against the
accused informant.

The position of such case has been discussed in detail in Aghnoo Nagesia versus State of
Bihar, 1966- Such an F.I.R. is not inadmissible in evidence If the information is non-
confessional then it could be admissible under Section 21. If it is confessional in nature then
it will become inadmissible except the portion which will come under Section 27 of the
Evidence Act. In this case, Supreme Court for the first time clarified that F.I.R. will be
admissible in evidence as a whole not in parts but with a rider that in case the non-
confessional part has no connection with the confessional part then the former will be
relevant under Section 18 and Section 21.

F.I.R. by an accused cannot be treated as evidence against the co-accused.

 F.I.R. can be used by the informant to refresh his memory under Section 159 of the
Evidence Act.
 F.I.R. can be used for impeaching the credit of the informant under Section 155 of the
Evidence Act.
 It can also be used for proving the conduct of the informant as per Section 8 of the
Evidence Act.
 F.I.R. can be used to identify the accused, witnesses, place and time of occurrence as
per Section 9 of Evidence Act.
 In certain circumstances, it could also be used as per Section 11 of the Evidence Act.

F.I.R. cannot be used as a primary evidence of the truth of its contents as it cannot be
substituted for evidence given on oath. Therefore, F.I.R. itself cannot lead to the conviction
of the accused. But in certain circumstances F.I.R. becomes substantive piece of evidence:

FIR can even become substantial evidence in following circumstances:

1. During declaration when a person deposing about the cause of his death had died (that
is, a dying declaration). In such case FIR will become admissible under Section 32(1)
of the Indian Evidence Act, 1872. The Supreme Court in deciding P.V.
Radhakrishna v. State of Karnataka, Appeal held that ‘the principle on which a
dying declaration is admitted in evidence is indicated in the Latin maxim, ‘nemo
 morturus procsumitur mentri’, which means that a man will not meet his maker with a
lie in his mouth. Information lodged by a person who died subsequently relating to the
cause of his death is admissible in evidence under this clause.
2. When the injuries are being caused in the presence of Station House officer in a police
station and the injured makes a statement to the SHO saying that accused was injuring
him.
3. When the informer who has written the FIR or read it, fails to recall memory those
facts but is, sure that the facts were correctly represented in FIR at the time he wrote it
or read it.

On the basis of the above, it can be concluded that normally F.I.R. is not a substantive piece
of evidence but is a public document as per Section 74 of the Evidence Act and its certified
copy could be given as per Section 79 of the Evidence Act. However, it becomes a
substantive piece of evidence under certain circumstances.

Explain the concept of ‘bail’ under Cr.P.c. Discuss the provisions relating to bail of
under trial prisoners with the help of Judicial decisions.

ANSWER 5

‘Bail’ is derived from the old French verb ‘baillier’ meaning to ‘give or deliver’. The term
bail has not been defined in the Criminal Procedure Code (herein after referred to as CrPc),
nevertheless, the word ‘Bail’ has been used in the Cr.P.C. several times and remains one of
the vital concepts of criminal justice system in consonance with the fundamental principles
enshrined in Parts III and IV of the Constitution along with the protection of human rights as
prescribed under International treaties/ covenants.

The term bail is not defined under CrPC. Bail is a kind of security which is given by the
accused to the court that he will attend the proceedings against the accusations made upon
him and include personal bond and bail bond. Bail is a mechanism used to ensure that the
accused is present before the court. The two authorities that can grant bail are police and
courts.

Types of Bail in India

There are commonly 3 types of bail in India which a person can apply depending upon the
stage of the criminal matter:

1. Regular Bail: A regular bail can be granted to a person who has already been arrested
and kept in police custody. A person can file a bail application for regular bail under
Section 437 and 439 of the CrPC.
2. Interim Bail: Interim bail is a bail granted for a short period of time. Interim bail is
granted to an accused before the hearing for the grant of regular bail or anticipatory bail.
3. Anticipatory Bail: A person who discerns that he may be arrested by the police for a non
bailable offence, can file an application for anticipatory bail. It is like an advance bail
obtained under Section 438 of the CrPC. A bail under Section 438 is a bail before arrest
and a person cannot be arrested by the police if the anticipatory bail has been granted by
the court. The basic goal behind arresting and detaining a person behind the jail is that
when the accused is required by the court during the trial he must appear in court for the
trial. The process of bail is a complex mechanism, it is considered to be very delicate and
conflicting at the same time. The reason it is very delicate is that an accused seeks for
bail when the trial is pending in the court and it can’t be said that the accused is innocent
or culprit. Sometimes when the bail is not granted to the accused person it may curtail the
liberty of the innocent accused or while granting bail may result in giving extra-liberty
and freedom to the actual culprit. The basic and fundamental object of bail is to ensure
the attendance of accused at the trial before court.

The concept of bail and personal liberty goes hand in hand and therefore every individual
including the accused person has the right to seek bail in order to get himself released from
custody until and unless proven guilty by a court of law. As enshrined under Article 21 of the
Indian Constitution that the life and personal liberty of a person can’t be deprived except by
the procedures laid down by the law.

The sections from 436 to section 439 deal with the provisions of bail.

There are two types of offences bailable and non-bailable offence. The distinction between
bailable and non-bailable offences is based on the gravity of the offence. Though the
schedule I of CrPC provided the bailable or non bailable offence.

As per section 436 CrPC bail in bailable offence is an absolute right. But as per section
436(2), if a person has violated the conditions of the bail bond earlier, the court may refuse to
release him on bail, on a subsequent occasion in the same case. He can also be asked to pay
penalty for not appearing before the court in the proceedings against him.

Discussing the plight of undertrial prisoners, if a person who is facing trial, but not released
on bail is considered as undertrial and he is presumed innocent until proven guilty. A person
does not lose all his basic human rights merely on the ground that he has committed some
offence. So, no undertrial can be deprived of his/her fundamental human rights merely on the
ground that he is undertrial or he is an accused of committing an offence. The undertrials also
have some fundamental human rights, which must be protected. The problem of undertrial
prisoners has assumed new proportions in the present-day scenario. In India, there are many
reasons such as poverty, illiteracy, etc., of which undertrial prisoners, become prey easily.
They are languishing in various jails in different states for a period much longer than the
maximum term for which they could have been sentenced, if convicted. They are the
basically the victim of the system.

Undertrial prisoners are persons who have not been convicted of the charge(s) for which they
have been detained, and are presumed innocent in law. Actually an ‘undertrial’ is a person
who is currently facing trial or who is imprisoned on remand whilst awaiting trial.

Undertrials would include the following further categories:

1. Those who have been refused bail and are awaiting trial;
2. Those granted bail, but unable to furnish bail bonds or sureties;
3. Those whose applications for bail have not been considered by the court for a variety of
reasons, including the fact that they have not been produced in court on the appointed
date, or that they have no lawyers to represent them or that the prosecution is yet to file a
charge-sheet on the completion of the investigation.”

Right to bail for undertrial prisoners:

Release on bail by –

a. Police Officer under Section 42(2), 43(3), 169,170, 436, 437 of the code of criminal
procedure.
b. Court generally (under Section 71, 81, 88, 187, 330, 340, 390, 395, 436, 437 Cr.P.C.)
c. Sessions Judges (under Sections 389, 439 Cr.P.C.).
d. High Court (under Sections 389, 439 Cr.P.C.).
In arrest for a bailable offence, bail is matter of right and not discretion. The Court is bound
to release the accused or bail or recognisance. A person accused of an office is to be
presumed innocent till he is proved to be guilty (State of Rajasthan -Vs Baichand,1977)
Hence, the grant of bail is a matter a rule and refusal is an exception (Babu -Vs- State of
U.P., 1978).

Despite sounding fair, the bail provisions and their implementation is highly discriminatory.
As far back as 1971, the Legal Aid Committee appointed by the Government of Gujarat
noted: The bail system causes discrimination against the poor since the poor would not be
able to furnish bail on account of their poverty while the wealthier persons otherwise
similarly situated would be able to secure their freedom because they can afford to furnish
bail. This discrimination arises even if the amount of the bail fixed by the Magistrate is not
high, for a large majority of those who are brought before the Courts in criminal cases are so
poor that they would find it difficult to furnish bail even in a small amount

The Supreme Court in the case of Gudikanti Narshimlulu v. Public prosecutor Andhra
Pradesh,1978 has held that the unwarranted “cruelty and expensive custody” inherent in the
case of “avoidable incarceration makes refusal of bail unreasonable and a policy favouring
release justly sensible”.

Section 436 Cr.P.C., which deals with the right to bail in bailable offences was amended in
2005. It mandates the police or court to release an indigent person on personal bond without
asking for any surety. A person accused for a bailable offence can be detained in prison for a
maximum period of 7 days.

Section 436A Cr.P.C.20 lays down the right of an undertrial to apply for bail once s/he has
served one half of the maximum term of sentence s/he would have served had s/he been
convicted. On a bail application filed under this section, the court shall hear the public
prosecutor and may order the

1) Release of such person on a personal bond with or without surety; or

2) Release of such person on bail instead of personal bond; or
3) Continued detention of such person.

This section further proscribes the detention of an undertrial beyond the maximum period of
punishment prescribed for the offence that s/he is alleged to have committed.
Therefore, in effect, this section prescribes the maximum period an undertrial can be detained
in any case.

In R.D. Upadhaya v. State of Andhra Pradesh, 2006 the Supreme Court observed that “the
undertrials should be released on bail to the satisfaction of the courts. If the undertrial
prisoners are unable to provide sureties, the trial court may consider releasing them on bail by
obtaining personal bonds. The Supreme Court also directed that it is not necessary for
undertrial prisoners to move applications for bail. The lower courts, on the authority of the
Supreme Court, may now grant them bails.”

The Supreme Court in the case of Imtiyaz Ahmad v. State of Uttar Pradesh, observed that

“long delay has the effect of blatant violation of the rule of law and adverse impact on access
to justice which is a fundamental right. Denial of this right undermines public confidence in
justice delivery system”.

The importance of bail provisions and their underutilization has been reiterated on many
occasions. No person should be made to suffer the deprivations of incarceration before s/he
has been proven guilty in the eyes of law. By depriving them of their right to liberty through
unnecessary detention, the existing system “punishes” the accused in violation of the basic
principle of criminal jurisprudence that every person shall be presumed innocent till proven
guilty. To ensure justice for under-trial prisoners, it is essential to effectively implement the
existing provisions of the Cr.P.C.