Hand Book of Criminal Trial 2020 Ebook

JUDICIAL ACADEMY JHARKHAND
Table of Contents
e-HANDBOOK OF CRIMINAL TRIAL

1. Institution of Criminal Case 5
2. Arrest And Remand 25
3. Bail 55
4. Complaints to Magistrate and
Commencement of proceeding 76
5. Cognizance 83
6. Issuance of process and Commitment 102
7. Types of Criminal Trial 116
8. Recall of witness (Section 311) 146
9. Judgment & Sentences which Court may pass 155
10. Search, Seizure Attachment and Disposal of property 162
11. Vicarious Liability in Criminal Law 186
A Hand Book On Criminal Trial PAGE | 2

Institution of A Criminal Case
F.I.R. Complaint
Chargesheet Final Form Sent to P.S.

Enquiry u/s
u/s 156(3)
200
for F.I.R.
No
Cognizance Protest to be Cognizance
Cognizance Proceeding Dismissal
and Issuance treated as a and Dismissal
and No u/s 182/211 U/s 204(4)
of Processes Complaint Summoning u/s 203
Summonning for default
u/s 204
Accused fails Accused

to Appear Appears Accused fails Accused
Cognizanc to Appear Appears
e to be
taken
only if
protest
Petition
Declared Framing
Discharged Dismissed Declared Summons Warrant
Absconder of
Absconder trial Trial
Charge/
Substanc
e of
accusatio
Record n
evidence u/s Record Before
Complainant
299 Evidence u/s Charge
s Evidence
299 Evidence
Pleads Not
Pleads Guilty
Guilty
Statement Charges
Discharged
u/s 313 Framed
Convicted on Evidence of
plea of Guilt prosecution
Defence After Charge
evidence Evidence
Statement
u/s 313
Statement
Arguments
u/s 313
Defence
evidence
Defence
Judgment
evidence
Arguments
Conviction
Acquittal Arguments
and Sentence
Judgment
Judgment
Conviction
Acquittal
and Sentence
Conviction
Acquittal
and sentence

1. INSTITUTION OF A CRIMINAL CASE:
Criminal law can be set into motion in the following ways :

(i) Information of cognizable offence to police under section 154
Cr.P.C. (FIR)
(ii) Information of non-cognizable offence to police under section 155
Cr.P.C.( Non Cognizable Report )
(iii) Complaint to Magistrate under section 200 Cr.P.C.( Private
Complaint)
Jurisdictional Issues:
 Jurisdiction with respect to taking cognizance of an offence.

 Procedure for dealing with information/complaint beyond the
jurisdiction of local police station or local court.
Jurisdiction with respect to taking cognizance of an offence.
Chapter XIII Code of Criminal Procedure, consisting of Sections 177

to 189 deals the jurisdiction of the Criminal Courts in inquires and trials.
The word ‗offence‘ is important. It means and implies that provisions of
this chapter relating to territorial jurisdiction do not apply to proceedings
like maintenance.
Chapter XIII of the Code of Criminal Procedure provides for
jurisdiction of the criminal Courts in inquiries and trials. Section 177
provides for ordinary place of enquiry and trial. It has been contemplated
that every offence shall ordinarily be inquired into and tried by a Court
within whose local jurisdiction it was committed. Section 178 provides for
place of inquiry or trial in relation to the offences when it is uncertain in
which of several local areas an offence was committed, or where an offence
is committed partly in one local area and partly in another, or where an
offence is a continuing one, and continues to be committed in more local

areas than one, or where it consists of several acts done in different local
areas. It has been provided that in all such cases the offence may be
inquired into or tried by a Court having territorial jurisdiction over any of
such local areas. Therefore, a conjoint reading of these two sections would
show that the rule laid down by section 177 is one of the general
applications and governs all criminal trials held under the provisions of
the Code, subject to the exceptions provided in the Code. Whereas section
178 governs the exceptions as are provided therein.
From the provisions as contained in Sections 178 and 179 Cr.P.C.it
is clear that the normal rule is that the offence shall ordinarily be inquired
into and tried by a court within whose local jurisdiction it was committed.
However, when it is uncertain in which of several local areas an offence
was committed or where an offence is committed partly in one local area
and partly in another or where an offence is a continuing one, and
continues to be committed in more than one local area and takes place in
different local areas as per Section 178, the Court having jurisdiction over
any of such local areas is competent to inquire into and try the offence.
Section 179 makes it clear that if anything happened as a consequence of
the offence, the same may be inquired into or tried by a Court within
whose local jurisdiction such thing has been done or such consequence
has ensued. Absence of territorial jurisdiction will not prevent the Police
from recording information about the cognizable offence and forwarding
the same to the police station having jurisdiction over the area in which
the crime was said to have been committed. AIR 1993 SC 2644 State of
A.P. Versus Punati Ramulu
FIR Can be registered at the place of the offence - As far as the

investigation of a cognizable case is concerned, it can be investigated by
any officer in-charge of the police station having jurisdiction of the local
area within the limit of such police station under Sec.156 of Cr.P.C.

According to Sec.156 of Cr.P.C, ‗(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.
Sec. 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.
According to Sec.177, the place where offence is committed is the ordinary

place of inquiry and trial. In normal course, it is the court within whose
local jurisdiction the offence is committed that would have the power and
authority to take cognizance of the offence in question.
When the location of crime is not certain, i.e., when the place of
commission of crime is falling under different local areas, according to
Sec.178 Cr.P.C, the courts situated in any one local area is competent to
try the case.
Sec. 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.

Sec.178 creates an exception to the ‗ordinary rule‘ engrafted in
Section 177 by permitting the courts in another local area where the
offence is partly committed to take cognizance. If the offence is committed
in one local area continued in another local area, the courts in the latter
place would be competent to take cognizance. Under Section 179, if by
reason of the consequences emanating from a criminal act an offence is
occasioned in another jurisdiction, the court in that jurisdiction would
also be competent to take cognizance. Thus, if an offence is committed
partly in one place and partly in another; or if the offence is a continuing
offence or where the consequences of a criminal act result in an offence
being committed at another place, the exception to the ‗ordinary rule‘
would be attracted and the courts within whose jurisdiction the criminal
act is committed will cease to have exclusive jurisdiction to try the offence.
(Rupali Devi v. State of U.P., (2019) 5 SCC 384)
In the recent case of Rhea Chakraborty Versus State of Bihar and

Others 2020 SCC OnLine SC 654 The Hon‘ble Supreme Court has been
pleased enough to hold :
―30. Having regard to the law enunciated by this Court as noted

above, it must be held that the Patna police committed no illegality in
registering the Complaint. Looking at the nature of the allegations in the
Complaint which also relate to misappropriation and breach of trust, the
exercise of jurisdiction by the Bihar Police appears to be in order. At the
stage of investigation, they were not required to transfer the FIR to
Mumbai police. For the same reason, the Bihar government was competent
to give consent for entrustment of investigation to the CBI and as such the
ongoing investigation by the CBI is held to be lawful.‖
If the crime is committed in one local area but when the

consequences of crime ensue into another local area, the offence may be
inquired into or tried by a court within whose local jurisdiction such crime
has been committed or such consequence has ensued. Sec.179 of Cr.P.C
provides as follows:
Sec. 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.
In cases where crime is abated or conspired at one local area and the
other actis committed at another local area, according to Sec.180 of
Cr.P.C., trial can be conducted in both the places. Sec.180 Cr.P.C
provides as follows:
Sec. 180. Place of trial where act is an 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.
Exceptional circumstances such as dacoity, kidnapping, theft,

extortion or robbery, offence of criminal misappropriation or breach of
trust and any offence, which includes possession of stolen property are
dealt with under Sec.181 of Cr.P.C.
Sec.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.
Offences committed through letters are dealt with under Sec.182 of

Cr.P.C.
Sec.182 of Cr.P.C: 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 whoselocal 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].
GO TO THE TABLE OF CONTENT

Procedure for Dealing with Complaint beyond the

Jurisdiction of Local Court.
Steps to be taken by the court in the event of inter district, interstate
offences – Mahender Goel Vs Kadamba International 2013 SCC OnLine
Mad 3508: 2014 Cri LJ 1654 Madras (F.B.)- Procedure for return of
complaint
―24. In the light of our above findings, pending the provision of a

procedure by the legislature, we would direct that the following course be
adopted:
Upon finding that the case is one not triable within his jurisdiction or
within the jurisdiction of the Chief Judicial Magistrate to whom he is
subordinate, a Magistrate shall, cause certified copies of the Complaint,
Annexures as also record of proceeding, if any, under Section 202, Cr.P.C;
(i) the originals of the Complaint and Annexures filed therewith as also a
certified copy of record of proceedings under Section 202, Cr.P.C., if any,
shall be handed over to the Complainant towards presentation
before the appropriate Court. As the cognizance, which stands
taken is not bad in law, there would be no need for the Complainant to
seek the aid of Section 14 of the Limitation Act or, Section 417, Cr.P.C. or,
for that matter, in cases under Negotiable Instruments Act under Section
142 of such Act. Such position, in itself, makes requisite imposition of a
reasonable time frame for presentation of the papers before the
appropriate Court. We would direct that Magistrates may, for such
purpose, afford a period of not less than one month but not exceeding
three months;
(ii) in effecting return, the Magistrate shall issue a certified copy of record
of proceedings before his Court in the case;
(iii) the Magistrate shall hold the certified copies of Complaint, Annexures

as also all connected other original records. A returned case number shall
be allotted in seriatim to each case;
(iv) it shall be the duty of the Magistrate to issue certified copies of the
records held by it upon due Application therefor by the concerned parties;
(v) a separate register under the nomenclature ‗Complaints Returned

Register‘ shall be maintained by Magistrates. Therein, provision is to be
made towards informing the following:
Date of presentation of Complaint;
Date of taking on file;
Date of issue of process, if any, to the Accused;
Record of proceedings in the case;
Date of return of the Complaint; and
Reason for return.
Rules of practice for destruction of records shall duly be

followed.‖
While passing the above judgment reliance was placed on the decision of
the Hon‘ble Apex court in Y. Abraham Ajith v. Inspector of Police, (2004) 8
SCC 100 : 2004 SCC (Cri) 2134 at page 106where in it has been held in
the following words:
―The complaint be returned to Respondent 2 who, if she so chooses,

may file the same in the appropriate court to be dealt with in accordance
with law.‖

Information of Cognizable Offence to Police UnderSection 154 Cr.P.C.
(FIR)
FIR is instituted when police receives information regarding

commission of any cognizable offence under section 154 Cr.P.C. on a
written report or on a self statement drawn by the Police Officer. When the
complaint is filed to the court, the court can proceed for an enquiry under
Section 200 by examination of complainant and his witnesses or in the
alternative may send the case under the provisions of section 156(3)
Cr.P.C. to the concerned police station for investigation and report.
In case the complaint before the police discloses a noncognizable
offence the Officer In-charge of the police station will proceed according to
section 155 of the Cr.P.C. and investigate the case only after obtaining the
permission from the Magistrate.
Hon‘ble the Supreme Court of India in the case of Lalita Kumari v.
Govt. of U.P., (2014) 2 SCC 1has laid down the following guidelines with
regards to institution of FIR:
―96. The underpinnings of compulsory registration of FIRis not only to
ensure transparency in the criminal justice-delivery system but also to
ensure ―judicial oversight‖.Section 157(1) deploys the word ―forthwith‖.
Thus, any information received under Section 154(1) or otherwise has to be
duly informed in the form of a report to the Magistrate. Thus, the commission
of a cognizable offence is not only brought to the knowledge of the
investigating agency but also to the subordinate judiciary.
97. The Code contemplates two kinds of FIRs: the duly signed FIR under
Section 154(1) is by the informant to the officer concerned at the police
station. The second kind of FIR could be which is registered by the police
itself on any information received or other than by way of an informant
[Section 157(1)] and even this information has to be duly recorded and the
copy should be sent to the Magistrate forthwith. The registration of FIR

either on the basis of the information furnished by the informant under
Section 154(1) of the Code or otherwise under Section 157(1) of the Code is
obligatory. The obligation to register FIR has inherent advantages:
97.1. (a) It is the first step to ―access to justice‖ for a victim.
97.2. (b) It upholds the ―rule of law‖ inasmuch as the ordinary person
brings forth the commission of a cognizable crime in the knowledge
of the State.
97.3. (c) It also facilitates swift investigation and sometimes even

prevention of the crime. In both cases, it only effectuates the regime
of law.
97.4. (d) It leads to less manipulation in criminal cases and lessens

incidents of ―antedated‖ FIR or deliberately delayed FIR.‖
(emphasis supplied)
The above ratio has been followed in Lokayukta Police Vs. H. Srinivas,
2018 (3) PLJR 171 SC : (2018) 7 SCC 572and it has been further held:
―17.In our view the procedure adopted against the appellant before the
laying of the first information report though not in terms forbidden by law,
was so unprecedented and outrageous as to shock one's sense of justice
and fair play. No doubt when allegations about dishonesty of a person of
the appellant's rank were brought to the notice of the Chief Minister it was
his duty to direct as enquiry into the matter. The Chief Minister in our
view pursued the right course. The High Court was not impressed by the
allegation of the appellant that the Chief Minister was moved to take an
initiative at the instance of person who was going to benefit by the
retirement of the appellant and who was said to be a relation of the Chief
Minister. The High Court rightly held that the relationship between the
said person and the Chief Minister, if any, was so distant that it could not
possibly have influenced him and we are of the same view. Before a public

servant, whatever be his status, is publicly charged with acts of dishonesty
which amount to serious misdemeanor or misconduct of the type alleged
in this case and a first information is lodged against him, there must be
some suitable preliminary enquiry into the allegations by a responsible
officer. The lodging of such a report against a person, specially one
who like the appellant occupied the top position in a department,
even if baseless, would do incalculable harm not only to the officer
in particular but to the department he belonged to, in general. If the
Government had set up a Vigilance and Anti-Corruption Department
as was done in the State of Madras and the said department was
entrusted with enquiries of this kind, no exception can of taken to
an enquiry by officers of this department but any such enquiry must
proceed in a fair and reasonable manner. The enquiring officer must
not act under any preconceived idea of guilt of the person whose conduct
was being enquired into or pursue the enquiry in such a manner as to lead
to an inference that he was bent upon securing the conviction of the said
person by adopting measures which are of doubtful validity or sanction.
The means adopted no less than the end to be achieved must be
impeccable. In ordinary departmental proceedings against a Government
servant charged with delinquency, the normal practice before the issue of
a charge-sheet is for someone in authority to take down statements of
persons involved in the matter and to examine documents which have a
bearing on the issue involved. It is only thereafter that a charge-sheet is
submitted and a full-scale enquiry is launched. When the enquiry is to be
held for the purpose of finding out whether criminal proceedings are to be
restored to the scope thereof must be limited to the examination of
persons who have knowledge of the affairs of the delinquent officer and
documents bearing on the same to find out whether there is prima facie
evidence of guilt of the officer. Thereafter the ordinary law of the land must
take its course and further inquiry be proceeded with in terms of the Code

of Criminal Procedure by lodging a first information report.P. Sirajuddin v.
State of Madras, (1970) 1 SCC 595 : at page 601
InPriyanka Srivastava and Anr. Vs. State of U.P, 2015 (6) SCC 287-the
Hon‘ble Apex Court has given specific directions for filing affidavit in
support of averments made in the complaint prior to such complaint being
sent for investigation under section u/s 156(3) Cr.P.C.
Law On More Than One FIR
Hon‘ble Jharkhand High Court has noted the anomalous practice of drawing
about four FIRs arising out of the same incidence leading to multiplicity of
cases by institutions of nine sessions trials inArun Bara Vs. The State of
Jharkhand, Criminal Appeal (DB) No. 969 of 2018.
This is against the scheme of Cr.P.C. which in normal circumstance

envisages one FIR to be drawn with respect to one incident. However, case
and counter case are not ruled out.
There can be circumstances where information regarding the same offence

is given more than once to the police station. In cases where the
investigation is later on directed to be handed over to the CID, CBI or NIA
etc. then a second FIR is registered. The question that often arises is
regarding the legality of the second FIR and it is argued that the second
FIR being a subsequent statement is hit by section 162 of the Cr.P.C. The
leading case on this point is T.T. Antony Vs. State of Kerala, AIR 2001 SC
2637 wherein it was held that a second FIR based on the same fact is not
permissible. FIR postulated by section 154 Cr.P.C. is the first information
and all other information made orally or in writing after the
commencement of the investigation into the cognizable offence disclosed
from the facts mentioned in the FIR will be statements falling under
section 162 Cr.P.C. No such information / statement can properly be
treated as an FIR and entered in the station house diary again as it will be
in effect a second FIR.

The above law as set out in T.T. Antony case applies in same offence or
interrelated offences, but where there are two distinct offences it will not
apply. It has been held in Pattu Rajan Vs. State of Tamilnadu 2019 (4) SCC
771 that the aforementioned principle of law may not be applicable to the
facts of the incident on hand, as the crimes underlying the two FIRs are
distinct and different. The FIR with respect to murder is quite distinct from
the FIR relating to abduction.
It has been held in Ramesh Chandra Nandlal Parikh Vs. State of Gujarat,
2006 (1) SCC 732that in case where the FIR is not with respect to the same
cognizable offence or the same occurrence as the one‘s alleged in the first
FIR, there is no prohibition in accepting second FIR.
Md. Qaumuddin Khan Vs. State of Jharkhand – 2016 (4) JBCJ 311 Jhr. –
two FIR lodged with regard to the same incidence but the second FIR was
lodged by vigilance department considering discovery of new factual
foundation and larger conspiracy part. In such circumstance the second
FIR was held not to be illegal. The court relied on Nirmal Singh Kahlon Vs.
State of Punjab, 2009 (1) SCC 441wherein two FIRs were lodged first at the
instance of the state vigilance and second by the CBI. The Apex court held
that the second FIR would be maintainable not only because there were
different versions but when new discovery is made on factual foundation.
Under what circumstances more than one FIR registration is permissible
was discussed in Anju Chaudhary Vs. State of U.P.- 2013 (6) SCC 384and it
has been held that where incident is separate, offences are similar or
different or even where subsequent crime is of such magnitude that it does
not fall within ambit and scope of FIR recorded first, then a second FIR could
be registered.
The question at this juncture arises as to what should be the
proper course for a court when it receives multiple
FIRs/chargesheets relating to the same offence?
Section 220 of the Cr.P.C . provides that if in one series of acts so

connected together as to form the same transaction more offence than one
are committed by the same person, he may be charged with, and tried at
one trial for every such offence.
This principle is further elaborated in section 223 Cr.P.C. where more
than one person are accused of offence committed in the course of the same
transaction they may be charged and tried together. This provision lays
down altogether seven circumstances wherein accused persons can be
jointly tried. The provisions of section 220 and 223 are extracted below for a
ready reference.
Section 220.Trial for more than one offence.
(1) If, in one series of acts so connected together as to form the same
transaction, more offences than one are committed by the same person, he
may be charged with, and tried at one trial for, every such offence.
(2) When a person charged with one or more offences of criminal
breach of trust or dishonest misappropriation of property as provided in
sub-section (2) of section 212 or in sub-section (1) of section 219, is
accused of committing, for the purpose of facilitating or concealing the
commission of that offence or those offences, one or more offences of
falsification of accounts, he may be charged with, and tried at one trial for,
every such offence.
(3) If the acts alleged constitute an offence falling within two or more
separate definitions of any law in force for the time being by which
offences are defined or punished, the person accused of them may be
charged with, and tried at one trial for, each of such offences.
(4) If several acts, of which one or more than one would by itself or
themselves constitute an offence, constitute when combined a different
offence, the person accused of them may be charged with, and tried at one
trial for the offence constituted by such acts when combined, and for any
offence constituted by any one, or more, of such acts.

(5) Nothing contained in this section shall affect section 71 of the Indian
Penal Code (45 of 1860).
Illustrations to sub-section (1)
(a) A rescues B, a person in lawful custody, and in so doing causes

grievous hurt to C, a constable in whose custody B was. A may be charged
with, and convicted of, offences under sections 225 and 333 of the Indian
(b) A commits house-breaking by day with intent to commit adultery, and

commits, in the house so entered, adultery with B's wife. A may be
separately charged with, and convicted of, offences under sections 454 and
497 of the Indian Penal Code (45 of 1860).
(c) A entices B, the wife of C, away from C, with intent to commit adultery
with B, and then commits adultery with her. A may be separately charged
with, and convicted of, offences under sections 498 and 497 of the Indian
(d) A has in his possession several seals, knowing them to be counterfeit

and intending to use them for the purpose of committing several forgeries
punishable under section 466 of the Indian Penal Code (45 of 1860). A
may be separately charged with, and convicted of, the possession of each
seal under section 473 of the Indian Penal Code.
(e) With intent to cause injury to B, A institutes a criminal proceeding

against him, knowing that there is no just or lawful ground for such
proceeding, and also falsely accuses B of having committed an offence,
knowing that there is no just or lawful ground for such charge. A may be
separately charged with, and convicted of, two offences under section 211
of the Indian Penal Code (45 of 1860).
(f) A, with intent to cause injury to B, falsely accuses him of having

committed an offence, knowing that there is no just or lawful ground for

such charge. On the trial, A gives false evidence against B, intending
thereby to cause B to be convicted of a capital offence. A may be separately
charged with, and convicted of, offences under section 211and 194 of the
Indian Penal Code (45 of 1860).
(g) A, with six others, commits the offences of rioting, grievous hurt and
assaulting a public servant endeavouring in the discharge of his duty as
such to suppress the riot. A may be separately charged with, and
convicted of, offences under sections 147, 325 and 152 of the Indian Penal
Code (45 of 1860).
(h) A threatens B, C and D at the same time with injury to their persons
with intent to cause alarm to them. A may be separately charged with, and
convicted of, each of the three offences under section 506 of the Indian
The separate charges referred to in illustrations (a) to (h), respectively, may

be tried at the same time.
Illustrations to sub-section (3)
(i) A wrongfully strikes B with a cane. A may be separately charged with,

and convicted of, offences under sections 352 and 323 of the Indian Penal
Code (45 of 1860).
(j) Several stolen sacks of corn are made over to A and B, who knew they
are stolen property, for the purpose of concealing them. A and B
thereupon voluntarily assist each other to conceal the sacks at the bottom
of a grain-pit.A and B may be separately charged with, and convicted of,
offences under sections 411 and 414 of the Indian Penal Code (45 of
1860).
(k) A exposes her child with the knowledge that she is thereby likely to
cause its death. The child dies in consequence of such exposure. A may be

separately charged with, and convicted of, offences under sections 317 and
304 of the Indian Penal Code (45 of 1860).
(l) A dishonestly uses a forged document as genuine evidence, in order to

convict B, a public servant, of an offence under section 167 of the Indian
Penal Code (45 of 1860). A may be separately charged with, and convicted
of, offences under sections 471 (read with section 466) and 196 of that
Code.
Illustration to sub-section (4)
(m) A commits robbery on B, and in doing so voluntarily causes hurt to

him. A may be separately charged with, and convicted of, offences under
sections 323, 392 and 394 of the Indian Penal Code (45 of 1860).
Section 223. What persons may be charged jointly.
The following persons may be charged and tried together, namely:
(a) persons accused of the same offence committed in the course of the
same transaction;
(b) persons accused of an offence and persons accused of abetment of, or

attempt to commit, such offence;
(c) persons accused of more than one offence of the same kind, within the
meaning of section 219 committed by them jointly within the period of
twelve months;
(d) persons accused of different offences committed in the course of the

same transaction;
(e) persons accused of an offence which includes theft, extortion, cheating,

or criminal misappropriation, and persons accused of receiving or
retaining, or assisting in the disposal or concealment of, property
possession of which is alleged to have been transferred by any such

offence committed by the first-named persons, or of abetment of or
attempting to commit any such last-named offence;
(f) persons accused of offences under sections 411 and 414 of the Indian
Penal Code (45 of 1860) or either of those sections in respect of stolen
property the possession of which has been transferred by one offence;
(g) persons accused of any offence under Chapter XII of the Indian Penal
Code (45 of 1860) relating to counterfeit coin and persons accused of any
other offence under the said Chapter relating to the same coin, or of
abetment of or attempting to commit any such offence; and the provisions
contained in the former part of this Chapter shall, so far as may be, apply
to all such charges:
Provided that where a number of persons are charged with separate

offences and such persons do not fall within any of the categories specified
in this section, the Magistrate or Court of Session may, if such persons by
an application in writing, so desire, and if he or it is satisfied that such
persons would not be prejudicially affected thereby, and it is expedient so
to do, try all such persons together.
From the above two provisions it is evident that persons accused of

same or different offences arising out of the same transaction may be
charged and tried together. In view of these provisions court at the time of
taking cognizance or before framing of charge may hold joint trial of
different police cases registered on the basis of multiple FIRs arising out of
the same transaction to avoid multiplicity of criminal proceedings in the
event of such cases having been transferred to different courts and the
trial has not commenced such lower court can report the matter to the
sessions judge so that power under section 408 Cr.P.C. can be exercised
by the Sessions Judge.
Where the two FIRs are instituted into two separate states the cases
may be transferred under section 406 Cr.P.C. by the Supreme Court and

where the two FIRs are registered in two districts within the same state it
shall be within the powers of High Court to transfer such cases under
section 407 of Cr.P.C.
In the event of case and counter case arising out of the same
incidence there cannot a joint trial, but such trial should ideally be head
and disposed of together by the same court. It has been held in Sudhir
and other Vs. State of M.P., 2001 (2) SCC 688It has been held that two
different versions of the same incident resulting in two criminal cases are
compendiously called case and counter case or cross cases. Where one of
the two cases is chargesheeted or complained of, involves offences or
offence exclusively triable by a court of session, but none of the offences
involved in the other case is exclusively triable by the sessions court. The
Magistrate has no escape from committing the former case to the sessions
court as provided in section 209 Cr.P.C. Though, the next case cannot be
committed in accordance with section 209 of the Code, the Magistrate has,
nevertheless power to commit the case to the court of sessions. Section
323 is incorporated in Cr.P.C. to meet similar cases also. Commitment
under section 209 Cr.P.Cand Section 323 might be through two different
channels, but once they are committed their subsequent flow could only
be through the scheme channelized by the provisions contained in Chapter
XVIII.
To make it simple it may be added that there is an embargo on the
court of Judicial Magistrate up to the rank of Chief Judicial Magistrate
that they are competent to try only thosewhich are shown in the first
schedule of the Cr.P.C. to be triable by the court of Magistrates, but as per
the provisions of Section 26(a)(ii)of the Cr.P.C a court of sessions can try
any offence. Further, a conjoint reading of section 209 Cr.P.C. and 323 of
Cr.P.C. shows that section 209 puts a duty on the Magistrate to commit all
such cases which are triable exclusively by the court of sessions as per
the first scheduled of Cr.P.C. Whereas Section 323 of the Cr.P.C. gives a

discretion to the Magistrate to commit a case to the court of sessions
where he is of the opinion that the case is one which ought to be tried by
the court of sessions.
Steps When a FIR or a Complaint is Received in Court:-

 The FIR or the Complaint must be registered in the CIS (Court
Information System) at the filing counter and only then any court
should receive it.
 In case of a FIR the Magistrate or the presiding Judge must put date
& time and sign it as per section 157 Cr.P.C.
GO TO THE TABLE OF CONTENTS

2. ARREST AND REMAND
"The word arrest is derived from the French word Arreter meaning "to
stop or stay" and signifies a restraint of the person. Lexicologically, the
meaning of the word arrest is given in various dictionaries depending upon
the circumstances in which the said expression is used. The word arrest
when used in its ordinary and natural sense means the apprehension or
restraint or the deprivation of one‘s 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 where he
pleases. When used in the legal sense 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 of preventing the commission
of a criminal offence." Directorate of Enforcement vs. Deepak Mahajan and
another 1994AIR(SC) 1775.
A fair trial requires that the trial proceedings are conducted in the
presence of the accused and that he is given a fair chance to defend
himself. The presence of the accused at the trial can be ensured by simply
arresting him and detaining him during trial. It is time and again stated as
a broad principle that the liberty of a person should not be taken away
without just cause. Arrest although appears simple and expedient but it
should not be resorted to in every case as has been held by the Hon‘ble
Courts time and again that jail is an exception. If the presence of the
accused at the trial cannot be procured except by arrest and detention, the
accused should by all means be arrested and detained pending his trial
however, if his presence can be reasonably ensured otherwise then by his
arrest and detention, he ought not be deprived of his right to liberty. That
is the reason why the Code has included provisions regarding the issue of
a summons, or of a warrant of arrest and the provisions relating to arrest

without warrant with provisions regarding release of the arrested accused
on bail and/ or aimed at ensuring the presence of the accused at trial
without unreasonably depriving him of his liberty.
The provision of remand in the Cr.P.C. has been made in sections 167,
209 and 309 of the Cr.P.C. at different stages of investigation, enquiry and
trial. As per section 57 Cr.P.C.a person arrested by police cannot be
detained more than 24 hours the detention beyond the period of 24 hours
needs a special order of a Magistrate under sections 167. The detention
under sections 167can be authorized by a Magistrate for a term not
exceeding 15 days which may extend to 60 or 90 days depending on the
nature of offence. This remand can be only during the period of
investigation and the nature of remand changes the moment the police
report is submitted. Custody beyond such period can be authorized under
section 209 where the offence is triable by the court of sessions by the
committing Magistrate or under section 309 by the court competent to try
the offence.
Remand May be of two types:
(i) Judicial Remand

(ii) Police Remand
Judicial Remand- sections 167Cr.P.C.

The accused can be remanded to judicial custody either after arrest
by police or on surrender before the court. Further, when the accused is in
judicial custody in connection with any other case, the remand of the
accused in the case pending before the Magistrate can be taken on an
application submitted by the Investigating officer or the accused. The first
remand however can only be taken by physical production of the accused
in the subsequent case. A Full Bench of the Hon'ble Patna High has held
that though physical production of the accused before the Magistrate is

desirable, yet the failure to do so would not per se vitiate the order of
remand, if the circumstances for the non-production were beyond the
control of the prosecution or the police (1987 Cr.L.J. 1489 (Pat)
F.B.).However, as a general practice the Magistrate should insist upon
physical production at the first remand as required under 167(2) of the
Cr.P.C. it has been held in several cases that remand order by the
Magistrate without production of the accused before him, is neither safe
nor possible. Where the accused is subsequently remanded in other case
his remand shall be counted in both the cases.
It may be pointed out in this context that where the accused is in
custody in relation with some case and subsequently his production is
sought by a petition filed for production by the I.O in connection with
another case. The same can be allowed by the Magistrate in the light of the
ratio of Joseph Ekka Vs State of Jharkhand 2012(4) Eact Cr. C 207(Jhr)
wherein it has been held that there are two courses open for the
Magistrate. Either the accused be produced under proper escort before the
concerned court or he may be remanded through electronic video linkage
in that particular case-- But in no case he will be handed over to the police
for producing before the concerned court in which his appearance is
required.--If a person is in judicial custody in connection with any case he
can be remanded in another case in which his appearance is required in
another district through electronic video linkage for further progress of
that particular case.
When the accused is produced on strength of a production warrant
by the jail authorities in any subsequent case the Magistrate must remand
the accused in the subsequent case on the day of his production in such
subsequent case if not already released on bail by drawing proper order on
the point.
Provision for compensation in cases of illegal arrest.

Hon‘ble the Apex Court has laid down guidelines in the case of Dr Rini

Johar Vs State of M.P. 2016(4) supreme 397which may be summarized as
follows:
 Procedures of arrest and seizure u/s 41 Cr.P.C and in the guidelines
laid down in DK Basu Case are mandatory in nature.
 Violation of Sections 41 and 41-A Cr.P.C and guidelines of D.K.Basu
case in matter of arrest and seizure attracts public law of remedy
entitling the Court to impose compensation. Compensation of Rs
5,00,000 to each petitioner directed.
 When the dispute is purely civil in nature , criminal proceedings can
not be allowed to proceed.
 Justice Krishna Aiyer has held in Jolly George Varghese Vs Bank of
Cochin AIR 1980 SC 470―No one shall be imprisoned merely on
the ground of inability to fulfill a contractual obligation‖
 Under Section 41-A CrPC makes it clear that when arrest is not
required under Section 41-A CrPC the police officer is required to
issue notice to the accused to appear before him at a specified place
and time. Law obliges that when such an accused appears before the
police officer and the accused complies with the term of the notice he
shall not be arrested.
To arrest a person is to restrain of his liberty by some lawful authority.
It is to deprive him of personal liberty by legal authority. It consists of
seizure or touching of a persons‘ body with a view to his restraint. How to
arrest and essential elements are discussed in D.K. Basu v. State of West
Bengal, 1997(1) SCC 416; Joginder Singh v. State, 1994 Cri LJ 1981;
Delhi Judicial Service Association v. State, AIR 1991 SC 2176.-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 is provided in section 41B of Cr.P.C.
Following the mandate given by the Apex Court of India in D.K. Basu v.
State of W.B AIR 1997 SC 610., and Jogender Kumar v. State of U.P. AIR

1994 SC 1349., a full Bench of Allahabad High Court in Ajeet Singh v.
State of U.P.,2007 Cri LJ 170 (All) FB (Para 31).has held that Section 50A
as inserted by Criminal Procedure Code (Amendment) Act, 2005 requires
the Police to give information about the arrest of the person as well as the
place where he is being held to anyone who may be nominated by him for
sending such information. It further obliges the Magistrate concerned
to satisfy himself about the fulfillment of the requirements of the
said provisions when arrested person is produced before him in
order to ensure compliance of the said law. The aforesaid provisions
are mandatory and any violation, thereof, can be a ground available to an
apprehended person to question the correctness of the arrest by the
aforesaid procedure. This is because the aforesaid section is clearly
designed to protect the fundamental right of a person guaranteed under
Article 21 of the Constitution, subject to reasonable restriction as placed
by the law enacted by the Legislature. The interpretation of the said
provision, therefore, makes it imperative for the investigating agency not to
apprehend a person and further for the Magistrate to satisfy himself that
the investigation agency had proceeded with in accordance with law,
which would ensure the safety and liberty of a person from being abused
and from preventing any unwarranted arrest .
[53A1. 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
1. Ins. by Act 25 of 2005, sec. 7 (w.e.f. 23.6.2006).

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 the 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.]
After the incorporation of Section 53A in the Criminal Procedure Code with
effect 23.6.2006, it has become necessary to go in for DNA test in such
type of cases facilitating the prosecution to prove its case against the
accused. Prior to 2006, even without the aforesaid specific provision in the
Cr.PC prosecution would have still resorted to this procedure of getting
DNA test or analysis and matching of semen of the accused with that
found on the undergarments of the prosecutrix to make it a fool proof

case, but they did not do so, thus the prosecution must face consequences
Krishan Kumar Malik v. State of Haryana, (2011) 7 SCC 130. Siva
Vallabhaneni vs State of Karnataka (2015)2 SCC 90.Sunil Vs State of M.P.
(2017) 4 SCC 393.
What procedure to be followed for authorizing detention of an accused
arrested and produced without a warrant ?
Checklist for Judicial Remand
 Section 167 Cr.P.C. authorises remand of a person to judicial
custody only in such cases where the bail is not granted when the
accused is produced by the police on arrest or surrendersphysically
before the Magistrate. Further the accused can also be remanded to
judicial custody on the basis of a requisition by the Public Prosecutor
or the I.O. of the accused being wanted in a pending case before that
court.
 The point to be remembered for the court is that when the accused is
not granted bail a custody warrant to the jail is issued and in case
where the accused is granted bail, he shall be released subject to
furnishing bail bonds.
 In case the accused is alreadyin custody in relation with some other
case and his attendance is procured on the strength of a production
warrant issued by the court, in such cases the accused shall be
remanded in the instant case by issuing fresh custody warrantand
an order of remand be drawn relating to the case in hand as the
period of detention is computed from the date of remand by the Jail
authorities.
 Where the accused is granted bail in the instant case and is in
custody in relation with some other case then the production
warrant shall be issued after drawing a proper order to that effect.
 The first remand must be by physical production of the accused in
terms of section 167 (2)(b) and 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 (VC).
Police Remand – Sec.167 Cr.PC

• During the first fifteen days only on satisfaction of good grounds.
• No reliance on general statement of IO.
• Factors to be considered by the Magistrate while granting Police
remand has been provided in Satyajit Ballubhai Desai v. State of
Gujarat, (2014) 14 SCC 434where in it has been held that the grant
of order for police remand should be an exception and not a rule and
for that the investigating agency is required to make out a strong
case and must satisfy the learned Magistrate that without the police
custody it would be impossible for the police authorities to undertake
further investigation and only in that event police custody would be
justified as the authorities specially at the magisterial level would do
well to remind themselves that detention in police custody is
generally disfavoured by law. The provisions of law lay down that
such detention/police remand can be allowed only in special
circumstances granted by a Magistrate for reasons judicially
scrutinised and for such limited purposes only as the necessities of
the case may require. The scheme of Section 167 of the Criminal
Procedure Code, 1973 is unambiguous in this regard and is intended
to protect the accused from the methods which may be adopted by
some overzealous and unscrupulous police officers which at times
may be at the instance of an interested party also. But it is also
equally true that the police custody although is not the be-all and
end-all of the whole investigation, yet it is one of its primary
requisites particularly in the investigation of serious and heinous
crimes. The legislature also noticed this and, has therefore, permitted
limited police custody.
• Accused must be produced before the P.O. both before and after the
Police remand.
• Satisfy that accused is sound in mind and body for which the
accused shall be brought to court and medical examination on both
the above occasions.
• Not more than 48 hours at a stretch, i.e., the accused must be
produced before the Magistrate every 48 hours and must be
produced for Medical checkup.
• In case of an absconding accused who is arrested after submission of
chargesheet in the main case he can be remanded to police custody
for interrogation in the light of the judgment passed in Dawood
Ibrahim Kaskar 2000(10) SCC 438and followed inAIR 2015 SC 3285,
CBI Vs. Rathin Dandapath.It was observed in Rathin case,―Accused if
in custody‖ in Section 309(2) Cr.P.C does not include accused who is
arrested on further investigation before supplementary charge‖.
When and what period for police remand:-
During the first 15 days alone an accused can be sent to police custody.
CBI v. Anupam J. Kulkerni AIR 1992 SC 1768Budh Singh v. State of
Punjab 2000(9) SCC 266M.P Patel v. State of Gujarat 2009(6) SCC
332Devender Kumar v. State of Haryana 2010(6) SCC 753It is not
permissible to apply for police custody along with the 2nd remand
application after the expiry of the first remand period of 15 days of judicial
custody. Can there be 2 or more spells of police custody during the first 15
days of detention? the answer is in affirmative. Yes, there can be, without
exceeding total 15 days. Anupam J. Kulkerni Case
There are several persons already arrested and yet to be arrested in

connection with an offence. In the remand application of one of the
arrested person, the police officer has not disclosed the name and role of a
co-conspirator who is yet to be arrested but against whom materials have
been collected. Is it not a ground to disbelieving the prosecution case or at
least for treating the prosecution case suspect?—
It is not necessary to mention about the role of co-accused while

seeking remand and therefore it cannot be a ground for rejection of
remand, Sushil Kumar And others VS State of HaryanaAIR 1988 SC
586.
How to Pass Order

• Notice of application to the Advocate appearing for the accused is to
be given.
• If no Advocate is engaged by the accused court must appoint a legal
aid counsel and give notice.
• Court must hear both sides
• Court must ask the accused personally and satisfy that he is sound
in mind and body
• Then a reasoned order should be passed.
• The court must ensure that the person who sought for custody is
present when the order is passed.
• Court must specify in the order the name and designation of the
police officer in whose custody accused is entrusted.
• The order of remand must specifically mention the date and time
from which custody begins and ends.
• It must contain a direction to produce the accused, after the period
of custody, in court: and
• If police custody for more than 48 hours is granted the court must
direct medical examination of accused at every 48 hours.
Remand where accused is in hospital

• Proceed to the Hospital and then verify all the aspects referred above
and then make the order of remand.
• For extension of remand of person admitted in hospital, same
procedure has to be followed.
Extension of remand without production of accused
The judicial remand period of accused can be extended even without
production of accused before the court in exceptional circumstances. But
judicial custody cannot be routinely extended without production of
accused. Raj Narain v. Supt. Central Jail, New Delhi AIR 1971 SC 178(7
Judges) Followed in M. Sambasivav Rao vs.The Union of India AIR 1973
SC 850,Sandip Kumar Dey vs.The Officer-in-charge, Sakchi P. S.,
Jamshedpur AIR 1974 SC 871
General Guidelines to be Followed by The Magistrate at the Time Of
Remand –
• Peruse the documents produced by the prosecution including extract

of entries in the case diary. In normal course police submits only a
remand report which contains information as to what investigation
has been done and the probable evidences against the accused. The
Code mandates the Officer In-charge to produce an extract of case
diary.
• Provide free legal aid to the accused in all such cases where the
accused is not represented by any lawyer at the time of even
remand.The Hon'ble Supreme Court of India has held in Mohammed
Ajmal Mohammad Amir Kasab @ Abu Mujahid -Versus State Of
Maharashtra -2012 9 SCC 1
―…..it is the duty and obligation of the magistrate before whom a
person accused of committing a cognizable offence is first produced to
make him fully aware that it is his right to consult and be defended by
a legal practitioner and, in case he has no means to engage a lawyer
of his choice, that one would be provided to him from legal aid at the
expense of the State. The right flows from Articles 21 and 22(1) of the
Constitution and needs to be strictly enforced. We, accordingly,
direct all the magistrates in the country to faithfully discharge
the aforesaid duty and obligation and further make it clear

that any failure to fully discharge the duty would amount to
dereliction in duty and would make the concerned magistrate
liable to departmental proceedings.
485. It needs to be clarified here that the right to consult and be
defended by a legal practitioner is not to be construed as sanctioning
or permitting the presence of a lawyer during police interrogation.
According to our system of law, the role of a lawyer is mainly focused
on court proceedings. The accused would need a lawyer to resist
remand to police or judicial custody and for granting of bail; to clearly
explain to him the legal consequences in case he intended to make a
confessional statement in terms of Section 164 CrPC; to represent him
when the court examines the chargesheet submitted by the police and
decides upon the future course of proceedings and at the stage of the
framing of charges; and beyond that, of course, for the trial. It is thus
to be seen that the right to access to a lawyer in this country is not
based on the Miranda principles, as protection against self-
incrimination, for which there are more than adequate safeguards in
Indian laws. The right to access to a lawyer is for very Indian reasons;
it flows from the provisions of the Constitution and the statutes, and is
only intended to ensure that those provisions are faithfully adhered to
in practice.
486. At this stage the question arises, what would be the legal
consequence of failure to provide legal aid to an indigent who
is not in a position, on account of indigence or any other
similar reasons, to engage a lawyer of his own choice?(emphasis
supplied)
487. Every accused unrepresented by a lawyer has to be provided a
lawyer at the commencement of the trial, engaged to represent him
during the entire course of the trial. Even if the accused does not ask
for a lawyer or he remains silent, it is the Constitutional duty of the

court to provide him with a lawyer before commencing the trial. Unless
the accused voluntarily makes an informed decision and tells the
court, in clear and unambiguous words, that he does not want the
assistance of any lawyer and would rather defend himself personally,
the obligation to provide him with a lawyer at the commencement of
the trial is absolute, and failure to do so would vitiate the trial and the
resultant conviction and sentence, if any, given to the accused ( Suk
Das v. UT of Arunachal Pradesh [(1986) 2 SCC 401]).‖
• The accused must be asked ―whether the accused has any complain
of torture or ill-treatment by the police and inform that he has a right
to be examined by a medical practitioner under Sec.54Cr.PC. and the
I.O. must produce such medical certificate in the court at the time of
remand. Sheela Barse V. State of Maharashtra AIR 1983 SC 378
• The signature of the accused in the right margin of the order sheet
must be taken.
• Then orders may be passed for remand of the accused to judicial
custody not exceeding the statutory limit of 15 days.
The distinction between offence punishable upto 7 years and more

than 7 years must be kept while passing appropriate order as
referred here in above in connection with the guidelines
inArneshKumar v. State of Bihar AIR 2014 SC 2756.
• The warrant of arrest or proclamation or warrant of attachment as
the case may be on the strength of which the accused was arrested
must accompany the letter of forwarding with due execution report.
• Memo or arrest must accompany the format showing intimation of
arrest was given to the relative or friend of the arrested person and
further that the accused was informed about his rights in terms of
section 50A.
• In case of arrest under Section 41(1)(b) of the Code, the arrest memo
along with the grounds has to be in writing mandatorily.Lalita Kumari
v. Govt. of U.P., (2014) 2 SCC 1
• Further in cases under section 498A IPC while passing an order of
remand the Magistrate has to see whether the guidelines laid down
by Hon‘ble the Apex Court in Arnesh Kumar v. State of Bihar AIR
2014 SC 2756.,(2014) 8 SCC 273 : at page 281 has been complied
with or not. The guidelines inter alia provides :
―Our endeavour in this judgment is to ensure that police officers do not

arrest the accused unnecessarily and Magistrate do not authorise
detention casually and mechanically. In order to ensure what we have
observed above, we give the following directions:
11.1. All the State Governments to instruct its police officers not to
automatically arrest when a case under Section 498-A IPC is registered
but to satisfy themselves about the necessity for arrest under the
parameters laid down above flowing from Section 41 CrPC;
11.2. All police officers be provided with a check list containing specified
sub-clauses under Section 41(1)(b)(ii);
11.3. 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;
11.4. 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;
11.5. The decision not to arrest an accused, 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;
11.6. Notice of appearance in terms of Section 41-A CrPC 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;
11.7. 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 the High Court having territorial jurisdiction.
11.8. Authorising detention without recording reasons as aforesaid
by the Judicial Magistrate concerned shall be liable for
departmental action by the appropriate High Court.‖ (emphasis
supplied)

Remand of Person Arrested Pursuant to Warrant Issued by Another
Court (78 To 81 Cr.Pc) (Transit Remand)
The provisions in chapter V and VI of the Code leave us with certain

questions for better understanding of the provisions.
Can a police officer execute a warrant issued by his

Jurisdictional Magistrate beyond the territorial jurisdiction of the
Court concerned?
The Police Officer can execute a warrant beyond the territorial

jurisdiction of the court concerned as per the provision of Section 77 to 81
relate to execution of warrant. Section 77 of the Cr.P.C provide that a
warrant of arrest may be executed at any place in India.
These provisions lay down two procedures by which such a warrant

can be executed. Firstly, the warrant will be taken by the police officer to
the concerned police station for endorsement and assistance of the police
station concerned. Secondly, in order to prevent delay in execution or
possibility of prevention of execution of the warrant it may also directly
execute the warrant without such endorsement or information to the
police station concerned. Thirdly, the court may forward by post or
otherwise the warrant to any other Magistrate or Police Officer for
execution instead of directing the warrant to a Police Officer within its
jurisdiction.
The provisions of section 78 deserves to be extracted the way it exists

which reads as follows:
Section 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.
There may be a situation that when a warrant is directed to a police

officer within the jurisdiction of the court but the warrant is to be executed
beyond the local jurisdiction of the court issuing the same. The procedure
to be adopted in such a situation has been provided in section 79 of the
Cr.P.C. which reads as follows :
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.
It is clear from a simple reading of the bare provisions of section 79

that where the warrant is to be executed beyond the local jurisdiction of
the court the police officer should take it to the officer incharge of the
police station within the local limits of whose jurisdiction the warrant is to
be executed and the police officer to whom such warrant is taken shall
endorse his name and assist the officer carrying the warrant in its
execution.
There is yet another situation where the officer carrying the warrant
may execute the warrant without following the procedure mention under
subsection (1) and subsection (2) in terms of subsection (3) of section 79
and directly execute the warrant in the circumstances mentioned therein.
Can a Police Officer arrest an accused without warrant involved

in a nonbailable cognizable offence registered in his Police Station
from a place beyond the jurisdiction of his Police Station or the
State?
Section 41 of the Cr.P.C.does not place any territorial limits on the

powers of the police to arrest without warrants. Further, section 48 of the
Cr.P.C.gives the power to Police Officer to arrest an accused by pursuing
him in any place within country.Section 48 also figures in Chapter V of
Cr.P.C. and from the reading of both these provisions in conjunction it will
be evident that a warrant of arrest in all cases is not required for arresting
a person beyond the territorial limits of the court concerned.
The relevant portions of Section 41 may be extracted for ready

reference herein after:
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-
(a) ******
(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) thepolice 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 such evidence in any manner; or
*********or
(e) asunless 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.
******
(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.
********
The provisions of section 48 of Cr.P.C. may be quoted as follows :
Section 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.
Procedure for such arrest and remand
It is thus ample clear that arrest without warrant may be made by a

police officer beyond his territorial jurisdiction. Section 56 and 57 of the
Cr.P.C. are very important when arrest is made without warrant which
mandates production of the accused before the Magistrate within 24
hours. The two provisions are interrelated and deserved to be read
simultaneously and thus are being produced herein below :
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.
Section 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.
In case of arrests without warrant the decision to make arrest is no

doubt made by persons other than magistrates and courts i.e. by police
officers, private citizens, etc. These persons may because of the exigencies
of certain situations detailed in the Code are allowed to make the arrest –
decisions themselves without obtaining warrant of arrest from the
Magistrates. In a case where a serious crime has been perpetrated by a
dangerous person and there is every chance of the person absconding
unless immediately arrested, it would be certainly unwise to insist on the
arrest being made only after on obtaining a warrant from a Magistrate.
Preventive action may sometimes be necessary in order to avert the danger
of sudden outbreak of crime, and immediate arrest of the trouble-maker
may be an important step in such preventive action. The exigency of the
circumstances may require a person to be arrested without warrant if
such person is reasonably suspected to have committed a cognizable
offence.
Under Section 56 of the Code of Criminal Procedure it is the bounden

duty of the police officer arresting a person to produce before a Magistrate
having jurisdiction without unnecessary delay. Under Section 57 of the
Code there is an embargo on the police officer to detain in custody a
person arrested beyond 24 hours excluding the time necessary for the
journey from the place of arrest to the Court of the Magistrate. The object
behind the aforesaid two provisions which are required to be read together
is that the accused should be brought before a Magistrate without much
delay and that the Magistrate will have an opportunity to apply judicial

mind in the matter within 24 hours. The aforesaid provision in fact is in
consonance with the constitutional mandate engrafted under Article 22(2).
Article 22 (1) embodies a rule which has always been regarded as vital and
fundamental for safeguarding personal liberty in all legal systems where
the Rule of law prevails.
The mandatory requirement for production of the arrested person

before the Magistrate within 24 hours has been elaborately discussed in
Madhu Limaye and others Vs State of Bihar 1969 1 SCC 292, Birbhadra
Pratap Singh Vs. D.M. Azamgarh, 1959 Cr.L.J. 685.
It is thus apparently clear that where a Police Officers arrests a

person without warrant, the arrested person must be produced before a
Magistrate within 24 hours in terms of the provisions contained in section
57 of the Cr.P.C. In yet another case reported in 1981 AIR(SC) 928; 1981 1
SCC 627Khatri and others VersusState of Bihar and others Hon‘ble
Supreme Court has held that the provisions of section 57 are mandatory.
It is thus ample clear that where the arrest is made without warrant
the arrested person must be produced before a Magistrate within 24
hours.
What is the procedure to be followed by the Police Officer

arresting an accused with or without warrant beyond the local
jurisdiction of the Police Station?
The Police Officer arresting an accused with or without warrant

beyond the local jurisdiction of the police station must produce the
arrested person before a Magistrate either in terms of section 56 or 57 of
Cr.P.C. where the arrest is without a warrant or when the arrest is made
on the strength of a warrant the arrested person must be produced in
terms of section 80 Cr.P.C.before the Court which issued the warrant or
when the place of arrest is not within 30 Kms before the nearest

Magistrate.The contents of Section 80 and 81 of the Code deserves to be
extracted the way they exist here in below:
Section 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.
Section 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.
Where any person is arrested without warrant and is produced before

the local Magistrate in terms of Section 57 of the Cr.P.C. , the arrested
person on verification of the memo of arrest shall be permitted to be taken
to the Magistrate having jurisdiction in the matter.
What is the procedure to be adopted by the Magistrate when an

accused wanted in a case by any other court having jurisdiction for
enquiry and trial is produced before such Magistrate?
 The power of remand upto 15 days may be exercised by the Court

before which the accused is produced under section 167(2) Cr.P.C.
and subsequent remands can be ordered only by the court having
jurisdiction for enquiry or trial. Therefore, whenever an accused
arrested in connection with a case pending before any other court
having territorial jurisdiction is produced the Magistrate need to
remand the accused to custody for production before the court
having jurisdiction. This in normal parlance called transit remand.
 The Magistrate before whom such accused is produced at the first

instance has to proceed as per the provisions laid down under
section 81 of Cr.P.C. which prescribes the procedure by
Magistrate before whom such person arrested is brought.
 The Magistrate 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:

 If the offence is bailable, and such person is ready and willing to give
bail to the satisfaction of such Magistrate, 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 shall take such bail or security, as the case may be, and
forward the bond, to the Court which issued the warrant:
 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.
Can a Magistrate remand the accused in such cases if he has no

jurisdiction to try the offence?
Once the person arrested with or without warrant in connection with

a case outside the local jurisdiction of the court is produced the Magistrate
in terms of sections 167 (2) read with section 56 and 57 shall forward the
accused to the Magistrate having such jurisdiction.
It is interesting to note that Hon‘ble Apex Court in State of Punjab v.

Ajaib Singh AIR 1953 SC 10 (CB) in para 20 has drawn a distinction in
cases of arrest made on the strength of the warrant and those made
without warrant. It has been pointed out that the mandate of production
before the Magistrate within 24 hours is mandatory in cases of arrest
without warrant but same is not the case when the accused is arrested on
the strength of a warrant of arrest issued by a court of competent
jurisdiction. The reason being that in the former case the judicial mind
has already been applied, whereas in the latter case the arrest the judicial
mind has not been applied. The relevant observation of the Hon‘ble Court
is extracted below:

― 20. Turning now to Art. 22 (1) and (2), we have to ascertain whether
its protection extends to both categories of arrests mentioned above, and,

if not then which one of them comes within its protection There can be no
manner of doubt that arrest without warrants issued by a Court call for
greater protection than do arrests under such warrants, The provision that
the arrested person should within 24 hours be produced before the
nearest Magistrate is particularly desirable in the case of arrest otherwise
than under a warrant issued by the Court, for it ensures the immediate
application of a judicial mind to the legal authority of the person making
the arrest and the regularity of the procedure adopted by him. In the case
of arrest under a warrant issued by a court the Judicial mind had already
been applied to the case when the warrant was issued and, therefore,
there is less reason for making such production in that case a matter of a
substantive fundamental right. It is also perfectly plain that the language
of Art 22 (2) has been practically copied from Ss. 60 and 61, Criminal P.C.
which admittedly prescribe the procedure to be followed after a person has
been arrested without warrant. The requirement of Art. 22 (1) that no
person who is arrested shall be detained in custody without being
informed, as soon as may be, of the grounds for such arrest indicates that
the clause really contemplates an arrest without a warrant of Court, for, as
already noted, a person arrested under a Court s warrant is made
acquainted with the grounds of his arrest before the arrest is actually
effected. There can be no doubt that the right to consult a legal
practitioner of his choice is to enable the arrested person to be advised
about the legality or sufficiency of the grounds for his arrest. The right of
the arrested person to be defended by a legal practitioner of his choice
postulates that there is an accusation against him against which he has to
be defended. The language of Art. 22 (1) and (2) indicates that the
fundamental right conferred by it gives protection against such arrests as
are effected otherwise than under a warrant issued by a Court on the
allegation or accusation that the arrested person has, or is suspected to
have, committed, or is about or likely to commit an act of a criminal or
quasi-criminal nature or some activity prejudicial to the public or the State
interest. In other words, there is indication in the language of Art. 22(1)
and (2) that it was designed to give protection against the act of the
executive for other non-judicial authority. The Blitz case (Petn. No. 75 of
1952) on which Sri Dadachanji relies, proceeds on this very view, for there
the arrest was made on a warrant issued, not by a Court, but by the
Speaker of a State legislature and the arrest was made on the distinct
accusation of the arrested person being guilty of contempt of the
Legislature. It is not, however, our purpose, nor do we consider it
desirable, to attempt a precise and meticulous enunciation of the scope
and ambit of this fundamental right or to enumerate exhaustively the
cases that come within its protection. Whatever else may come with the
purview of Art. 22 (1) and (2), suffice it to say for the purposes of this case,
that we are satisfied that the physical restraint put upon an abducted
person in the process of recovering and taking that person into custody
without any allegation or accusation of any actual or suspected or
apprehended commission by that person of any offence of a criminal or
quasi-criminal nature or of any act prejudicial to the State or the public
interest and delivery of trial person to the custody of the officer in charge
of the nearest camp under S. 4 of the impugned Act cannot be regarded as
arrest and detention within the meaning of Art. 22 (1) and (2). In our view,
the learned Judges of the High Court over-simplified the matter while
construing the Article, possibly because the considerations hereinbefore
adverted to were not pointedly brought to their attention.‖
Section 77 of the Cr.P.C. provides that the warrant of arrest may be

executed at any place in India and sections 78 and 79 of the Cr.P.C.
further provide the procedure for forwarding the warrant of arrest for
execution outside the jurisdiction of the court. Secs 56 and 57 apply only
to cases of arrest without warrant. The provision that the arrested person
should within 24 hours be produced before the nearest Magistrates
particularly desirable in the case of arrest without a warrant issued by a
Court. Such insistence is to ensure the immediate application of a judicial
mind to the legal authority of the person making the arrest and the
regularity of the procedure adopted by him. In the case of arrest under a
warrant issued by a court the Judicial mind has already been applied to
the case when the warrant was issued and, therefore, there is less reason
for making such production in that case a matter of a substantive
fundamental right.
What is the procedure to be followed by the Magistrate where

such accused is produced before him on being arrested? Can a
Magistrate in such cases refuse remand on the ground that the
accused has been arrested without a warrant of arrest issued by any
competent court?
If arrest of a person is made within the jurisdiction of the court by a

police officer in respect of a crime committed beyond its jurisdiction,
without a warrant, then Sec.167 would apply. The provisions of section
167 Cr.P.C.are extracted for a ready reference as below:
S.167 : Procedure when investigation cannot be completed in twenty-

four hours
(1) *******
(2) The Magistrate to whom an accused person is forwarded under this

section may, whether he has or has no jurisdiction to try the case, from
time to time, authorise the detention of the accused in such custody as
such Magistrate thinks fit, 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:
Provided that- ******
The case would be different when the arrest is made outside the
jurisdiction of the court issuing warrant of arrest then in that case the
Magistrate may issue transit warrant. There is no separate ‗Form‘ in the
CrPC for the same but the procedure mentioned under section 80 and 81of
the Cr.P.C. shall be followed.
Surrender before Magistrate having no Jurisdiction

As discussed above while passing an order of remand the court has
to satisfy itself on certain facts as required under section 167 on the basis
of the extracts of case diary produced before the court regarding the name,
identity of the accused, the offence and the case in which he is to be
remanded. The question arises if an accused suo motu surrenders before a
before a Magistrate having no jurisdiction to take cognizance of the
offence, what should be the course to be followed by the said court?
Logically and practically since there is no material before the court

for remand any such order should be uncalled for and the accused should
be asked to surrender before the Magistrate having jurisdiction over the
pending case concerned.
Surrender of person against whom warrant is issued by a court

If an accused surrenders before a Magistrate other than the
Magistrate who issued the warrant, he cannot be dealt with under
Sec.167.Ranveer Singh v. Desh Raj Chauhan 1983 SCC OnLine All
368further held in following words that
―The following observations in the case of State v. Sajjan Singh (AIR

1953 Pepsu 146) (Para 18) are important:—
―For the decision of the second point urged by Mr. Har Prashad we have
to find out whether the word ‗Court‘ appearing in S. 497 means any
Court or the Court which, has jurisdiction to try the accused for the
offence alleged to have been committed by him. Mr. Mehra admitted that
in the case of a person who is arrested or detained by the Police without
warrant an application for bail under S. 497 can only be made to the
Court who can take cognizance of the offence for which the accused is
arrested or detained, but he maintains that when he appears of his own
accord he can apply to any Court. He has not been able to it any
authority to support his contention and I do not think the contention
can be correct, because it would mean that when a case for a
cognizable or a non-bailable offence is registered against a person
in one District it is open to him to go to any Magistrate in any
other District in India and apply to him for bail whether or not he
can take cognizance of the offence or he has jurisdiction to try
the case that may result therefrom‖.(emphasis supplied)
Surrender by a person whose name and address is not in the FIR- How
to be dealt with
The court shall call for a report from the I.O. to ascertain whether
surrendered person is an accused. If he is an accused, he may be
considered to have submitted to the custody of the court. In appropriate
cases he may be released on bail or his custody can be authorised by the
Magistrate. If no report is filed on the same day or it is reported that the
person surrendered is not an accused, the application to surrender filed by
the accused has to be rejected.

3. BAIL
Whether an offence is bailable or non-bailable is determined as per

the 1stSchedule of the Cr.P.C.
Schedule-I Part II Cr.P.C – Offences against Other Laws
All offences punishable with imprisonment for 3 years or more are
classified as non-bailable
All offences punishable with imprisonment for a period of less than 3
years are bailable.
All offences punishable with fine only are Bailable.
This is subject to any contrary provision in the Special Statute. If the
accused is arrested with respect to an offence under Special Statute
always verify the provisions of the statute.
Bailable Offence
Mandatory bail under Sec.436 Cr.P.C
(i). Persons other than a person accused of a non-bailable offence.
(ii). Persons arrested, but not an accused; he can be a person arrested
under Secs 42, 41 and 151 Cr.P.C.(Ahmed Noor Mohmed Bhatii v. State of
Gujarat AIR 2005 SC 2115).Such persons can claim bail as a matter of
right.
In bailable offence no condition can be imposed. Time and place for
appearance in the bail bond is only a term of bail. Accused can be
released on bail on executing personal bond also. The court shall not insist
on for cash security. No police custody can be granted in bailable offence.
As per explanation to the 436 Cr.P.Cwhere a person is unable to give
bail within a week of his arrest, it shall be sufficient ground for the court to
release such person on executing a bond without sureties.

Provisions for Bail Summarized

BAIL
Pre-conviction bail Post-trial bail Post-sentence bail

Section 436 Cr.P.C Section 437 (7) Section 389 (3).
436 A (after conclusion of If the convict satisfies the convicting
437 (1), (2), (6) trial but before Court that he intends to file an
438 judgment) appeal, then that Court shall grant
439 (1) (a) bail to the convict in case the
436 sentence of imprisonment is not
Cr.P.CApersonotherthan“apersonaccus exceeding 3years.
edofa non-bailableoffence”.
436 A- Where the offence is a non-capital
offence & ½ of the maximum sentence has
been undergone.
437- A person accused of a non-bailable
offence
B A IL
Non-bailable
offences
Mandatory bail Discretionary bail Default or compulsive bail

(Bail can be claimed as of right) (Court has the (Bail due to default in
discretion to grant completing investigation or
bail) trial)
Section 436 Cr.P.C Section 81(1) Section 167 (2) proviso-
Persons who are covered by 2nd proviso default in filing final report.
Section 436 Transit Bail Section 436 A– Accused under
i) Persons accused of bailable 187(1) detention up to ½ of the
offences. When offence maximum period of
(i) Persons who are arrested in a committed beyond imprisonment prescribed for
matter in which no offence is jurisdiction the offence, other than capital
involved (e.g. Ss.41 (1) (b)to (i) 395(3) offence.
and S.151Cr.P.C Bail when Reference Section437(6) – Under trial in
Release on bond without is made to High Court custody for 60 days from the
sureties Section 436 (1) proviso The 437 (1), (2), (6) first date fixed for evidence, but
police officer / Court – i)may if he 438 trial not concluded.
think fit, or ii)shall if such person is 439 (1) (a)
indigent & unable to furnish surety,
release him on his executing a bond
without sureties.
Explanation:Apersonunableto give
bail within a week ofarrest
can be presumed to beindigent.

Is it correct to say that bail is a form of detention ?
Bail is a form of detention by other means. Instead of being detained in

prison, the accused is transferred to the custody of his bailor who are his
jailers of his own choosing, and the Court still retains its inherent power to
deal with him (See 8 Corpus Juris Secundum Bail S. 31). Similarly, the
authors of Halsbury's Laws of England, Third Edn. Vol. 10, page 373
state that the effect of granting bail is not to set the accused free, but to
release him from the custody of the law and to entrust him to the custody
of his sureties, and the sureties may discharge themselves by handing him
over to the custody of the law.
Earl Jowitt in Jowitt's Dictionary of English Law (Second Edn.) is of

the same opinion (page 173) that the accused is said to be admitted to bail
when he is released from the custody of officers of the law and is entrusted
to the custody of persons known as his sureties. Our own law is no
different. A person released on bail is considered in our law, to be detained
in the constructive custody of the Court through his sureties. A Division
Bench of the Patna High Court held in Krishna Singh v. State of
Bihar 1967 Cri LJ 1118, that a person released on bail remains in the
constructive custody of the Court through surety and his liberty is thus
subject to restraint. S. 444 of the New Code lays down that the sureties
may apply to the Magistrate to discharge the bond, and, on such
application being made the Magistrate shall cause the accused to be
arrested and brought before him. (Mahesh Chand v. State of Rajasthan,
1984 SCC OnLine Raj 43 : AIR 1986 Raj 58 : (1985): 1985 Cri LJ 301 )
If no bail is offered, the accused can be remanded stating that no bail

offered by the accused. (The meaning of bail is release on the guarantee of
surety)
A person who has failed to comply with the condition to appear in

accordance with the bond, and arrested and produced subsequently
cannot claim bail as a matter of right. But the court has the discretion to
grant bail again. The discretion has to be exercised consistent with liberty
of individual which cannot be easily interfered with on the ground that he
failed to appear on one occasion. The reason for non-appearance has to be
borne in mind.
Bail granted in bailable offence cannot be cancelled by the

Magistrate.
Release on personal bond
A person may be released on personal bond in a bailable offence,

considering the length of his residence in the community, by looking into
his employment status, financial status, family status, reputation, prior
criminal records, nature of offence etc.
Guiding Principles are enunciated in Hussainara Khotoon v. Home

Secretary, State of Bihar AIR 1979 SC 1360
Mandatory Release on personal bond
Sec.436provides that a person accused of a bailable offence can be

released on personal bond if he is in custody for more than 7 days. If the
person fails to take bail within 7 days, he is presumed to be an indigent
person.
Non-bailableOffence –Discretionary Bail -Sec.437
A Magistrate ought to have jurisdiction to try the offence or to commit

the case for trial for exercising the jurisdiction to grant bail. If a Magistrate
without jurisdiction finds further detention unnecessary, he shall forward
the accused to a Magistrate having jurisdiction (Sec.167 (2)).

A Magistrate who has no jurisdiction to take cognizance can grant bail
in the circumstance covered under Sec.187.
How To Consider The Application
When bail not to be granted by a Magistrate :
(a) No bail can be granted by a magistrate if the offence is punishable with

death or imprisonment for life (437(1) (i) or cases covered by Sec. 437(1)
(ii), except in cases covered by the proviso 1 and 2.
The expression ‗offence is punishable with death or imprisonment for

life‘mentioned above will depend on the facts and circumstances of the
cases as reflected in the case diaryor from the materials collected during
enquiry in complaint cases. If such a case is not made out then bail can
be granted. It has been held inMahipal Vs. Rajesh Kumar & Anr. 2019
SCC online SC 1556- the determination of whether a case is fit for grant
of bail involves the balancing of numerous factors, among which the
nature of the offence, the severity of the punishment and prima facie
view of the involvement of the accused are important.
The mere fact that the court issued only summons in a case covered by
Sec. 437 (1) (i) or (ii) does not give a right to the accused to claim bail as of
right. This proposition would apply equally to any case triable exclusively
by a Court of Session Suresh M. R. v. State of Kerala 2011 0 Supreme(Ker)
731; Santosh Bhaurao Raut . Versus State of Maharashtra
Magistrate cannot entertain bail application in respect of offences

under POCSO Act (Prasad v. State of Kerala 2013 0 Supreme(Ker)
292).Similar will be the case for offences cognizance of which is to be taken
by any special court e.g. NDPS, SC and ST Prevention of Atrocities Act etc.
Remand is permissible in bailable offence only if no bail is
offered by the accused.

While granting bail, the court has to keep in mind the nature of
accusation, the nature of evidence in support thereof, the severity of the
punishment which conviction will entail, the character of the accused,
circumstances which are peculiar to the accused, reasonable possibility of
securing the presence of the accused at the trial, reasonable apprehension
of the witnesses being threatened and the evidence being tampered with,
the larger interests of the public/State and other similar considerations.
For the purpose of granting bail, the Legislature has used the words
"reasonable grounds for believing" instead of "the evidence" which means
the Court dealing with the grant of bail can only satisfy itself as to whether
there is a genuine case against the accused and that the prosecution will
be able to produce prima facie evidence in support of the charge. (CBI v.
Vijay Sai Reddy, AIR 2013 SC 2216)
At the stage of granting bail, a detailed examination of all the
materials and elaborate documentation of the merits of the case is not to
be undertaken. While granting or refusing the bail, the reasons for prima
facie concluding why the bail was granted or refused must be indicated in
the order.
Checklist for Magistrates :
(i) The bail application must be heard only after the surrender of the
accused in court or his remand on any prior date.
(ii) Whether earlier bail application of the accused has been moved
and rejected to be verified from para 2 of the bail application.
(iii) Whether earlier bail application of the petitioner is pending or has
been rejected by any superior court and any direction with regard
to its renewal.
(iv) In case of multiple accused, fate of bail of other similarly situated
co-accused need to be verified from record.
(v) The Court must mention the date of arrest / surrender of the
accused and also the details of the accused, if there are two or

more accused in a crime in the order.
(vi) Hearing the APP - In an offence punishable with death,
imprisonment for life or imprisonment for 7 years or more, the
public Prosecutor is entitled to an opportunity of being heard.
The following authorities deal with factors to be taken into account for
granting or refusing bail.
Kalyan Chandra Sarkar vs. Rajesh Ranjan alias PappuYada AIR 2004 SC
1866, CBI v. Vijay Sai Reddy, AIR 2013 SC 2216, Neeru Yadav vs. State
of Uttar Pradesh AIR 2015 SC 3703, Niranjan Singh v. Prabhakar Rajaram
Kharote AIR 1980 SC 785.
Where bail has been granted by the court of Magistrate at the time of
investigation and after investigation charge sheet is submitted for an
offence punishable with death or imprisonment of life, can the
Magistrate cancel the bail?
It has been held in Pradeep Ram Vs. State of Jharkhand, 2019 (3)
JLJR 287 SC:2019 SCC OnLine SC 825-In a case, bail application of the
accused for newly added offences is rejected, the accused can very well be
arrested. In all cases, where accused is bailed out under orders of the
Court and new offences are added including offences of serious nature, it
is not necessary that in all cases earlier bail should be cancelled by the
Court before granting permission to arrest an accused on the basis of new
offences. The power under Sections 437(5) and 439(2) are wide powers
granted to the court by the Legislature under which Court can permit an
accused to be arrested and commit him to custody without even cancelling
the bail with regard to earlier offences. Sections 437(5) and 439(2) cannot
be read into restricted manner that order for arresting the accused and
commit him to custody can only be passed by the Court after cancelling
the earlier bail.
(i) The accused can surrender and apply for bail for newly added
cognizable and non-bailable offences. In event of refusal of bail, the

accused can certainly be arrested.
(ii) The investigating agency can seek order from the court under
Section 437(5) or 439(2) of Cr.P.C. for arrest of the accused and his
custody.
(iii) The Court, in exercise of power under Section 437(5) or 439(2) of

Cr.P.C., can direct for taking into custody the accused who has
already been granted bail after cancellation of his bail. The Court in
exercise of power under Section 437(5) as well as Section 439(2) can
direct the person who has already been granted bail to be arrested
and commit him to custody on addition of graver and non-cognizable
offences which may not be necessary always with order of cancelling
of earlier bail.
(iv) These sections do not mandatorily provide that the court before
directing arrest must necessarily cancel his earlier bail.‖
Bail to Foreigners
Court be circumspect in granting bail to the foreigners accused of
involved in serious offences (Union of India v.Abdul Momin2005 (13) SCC
144).
A foreigner is entitled for statutory bail Joshua v. State of Kerala
2014 SCC OnLine Ker 28767 :2015 Cri LJ (NOC 121) 37, 2007 SCC
OnLine Del 450 (Tunde Gbaja Versus Central Bureau of Investigation )
Whereas the Hon'ble Madras high court has held in 2005 SCC OnLine
Mad 719 (Janarajan @ Krishnamurali v. State of Tamil Nadu) that a
foreigner is not entitled to statutory bail.
Conditions to be imposed
The mandatory conditions mentioned in Sec.437 (3) and discretionary
conditions which can be imposed while passing the order of bail need to be
kept in mind.
Solvency certificate cannot be insisted on Hussainara Khotoon v.
Home Secretary, State of Bihar AIR 1979 SC 1360
Accused and sureties are from other state is not a ground for refusing
bail (Moti Ram v. State of MP AIR 1978 SC 1594).
Meaning of ―other condition‖ and ―any condition‖ that can be
imposed while granting bail under section 437 Cr.P.C.:
the Court shall impose the conditions,---(a) that such person shall attend
in accordance with the conditions of the bond executed under this
Chapter,
(b) that such person shall not commit an offence similar to the offence of
which he is accused, or suspected, of the commission of which he is
suspected, and
(c) that such person shall not directly or indirectly make 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 any police
officer or tamper with the evidence,and may also impose, in the interests
of justice, such other conditions as it considers necessary.]
Honb‘le the High Court Of Jharkhand while dealing with a matter

relating to grant of bail on the condition of depositing Cash has held Vide
order dated 20.04.2020in Cr. M.P. No. 342 of 2020 - Jitendra Oraon –
versus The State of Jharkhandthat the Court cannot impose ‗any
condition‘ he likes while granting bail. ‗Any condition‘ or ‗other
condition‘ has to be in consonance with the object and purpose of grant of
bail and as per the judgment of the Hon‘ble Supreme Court in the case of
Sumit Mehta and other cases cited above. The court is not conferred with
absolute power to impose ‗any condition‘ which he feels and chooses to
impose, rather the same has to be reasonable and pragmatic.
The court placed reliance on the judgment ofthe Hon‘ble Supreme
Court in the case of Munish Bhasin & Others versus State (Government of
NCT of Delhi) & Another reported in (2009) 4 SCC 45 at paragraph 10

thereof has held as under: -
―10. It is well settled that while exercising discretion to release an
accused under Section 438 of the Code neither the High Court nor the
Sessions Court would be justified in imposing freakish conditions. There is
no manner of doubt that the court having regard to the facts and
circumstances of the case can impose necessary, just and efficacious
conditions while enlarging an accused on bail under Section 438 of the Code.
However, the accused cannot be subjected to any irrelevant condition at all.‖
In the aforesaid judgment of Munish Bhasin, at paragraph 11
thereof, the Hon‘ble Supreme Court has held that normally conditions can
be imposed
(i) to secure the presence of the accused before the
investigating officer or before the court,
(ii) to prevent him from fleeing the course of justice,
(iii) to prevent him from tampering with the evidence or to
prevent him from inducing or intimidating the witnesses so
as to dissuade them from disclosing the facts before the
police or court, or
(iv) restricting the movements of the accused in a particular area
or locality or to maintain law and order, etc.
Paragraph 11 of the judgment further dictates that to subject an
accused to any other condition would be beyond jurisdiction of the power
conferred on court under Section 438 of the Code. It is also necessary to
note that the Hon‘ble Supreme Court in the aforesaid judgment has held
that the conditions should not be harsh, onerous or excessive, so as to
frustrate the object of grant of bail.
Conditions for the grant of bail ought not to be so onerous to be
incapable of compliance, thereby making the grant of bail illusory
(Dataram Singh v. State of Uttar Pradesh AIR 2018 SC 980).

When regular bail shall not be considered
Regular bail applications filed during the pendency of an application
for pre-arrest bail before a superior court shall not be entertained by a
Magistrate, even if interim bail during the pendency of application is
granted by superior court. (Rukmani Mahato v. State of Jharkhand 2017
(15) SCC 574)
When a person accused of a non-bailable offence is arrested or
detained without a warrant, the officer in-charge has also the power to
release him on bail, but the power is subject to the two exceptions given in
section 169 and subsection 2 of 437 of the Code that there should be no
charge sheet against such accused under any non-bailable section or the
accused be not sent up for trial.
Surrender and bail

Accused can be stated to be in judicial custody when he surrenders
before the court and submits to its directions. (Niranjan Singh v.
Prabhakar Rajaram Kharote AIR 1980 SC 785, Sundeep Kumar Bafna v.
State of Maharashtra AIR 2014 SC 1745
Bail On First Appearance:
Where the accused has been granted bail during investigation,
summons may be issued for appearance of accused after cognizance of the
offence is taken against him. If the accused appears after due service of
summons he shall be permitted to remain on the previous bail during the
trial provided his bail has not been cancelled after due service of summons
and issuance of NBW.

Cancellation Of Bail
Provisions : Section 437 (5) Cr.P.C.- The need for Cancellation of

bail of an accused may arise broadly in two circumstances firstly where he
commits a breach of condition of bail as laid down in the bail order for
instance non-appearance on the date fixed in the case, then the bail is
cancelled under section 437(5) Cr.P.C. for misuse of the privilege of bail.
Secondly,the bail can be cancelled under section 439(2) Cr.P.C.
if the accused after being enlarged on bail threatens the witness or
fails to cooperate with investigation of the case.It has been held in
Kanwar Singh Meena Vs. State of Rajasthan reported in 2013(1) JCR (SC)
57that High Court and court of sessions can cancel bail in cases of temper
with evidence or attempt to interfere with due course of justice. When such
an allegation is laid on behalf of the prosecution or the complainant the
court in order to satisfy itself about the veracity of the allegation of misuse
may call for a report from the concerned police station. Further, in case of
any threat to any person to give false evidence is also punishable u/s 195
A of the IPC and in appropriate cases proceedings may be drawn u/s 340
Cr.P.C. or even the witness concerned may file a complaint under section
195A Cr.P.C.Raghubir Singh v. state of Bihar1986 (4) SCC 481 (Simran jit
Singh Mann Case ), Aslam Babalal Desai v. State of Maharashtra AIR 1993
SC 1, Pradeep Ram Vs. State of Jharkhand, 2019 (3) JLJR 287 SC:2019
SCC OnLine SC 825
Factors to be taken into consideration while cancelling the bail has been
dealt with elaborately in the case of NeeruYadav v. State of Uttar
Pradesh AIR 2015 SC 3703, and Myakala Dharmarajam v. State of
Telangana, (2020) 2 SCC 743 : 2020 SCC OnLine SC 11 at page 745 which
deserves to be extracted as below
―8. In Raghubir Singh v. State of Bihar [Raghubir Singh v. state of
Bihar 1986 (4) SCC 481: 1986 SCC (Cri) 511] this Court held that bail
can be cancelled where (i) the accused misuses his liberty by indulging in
similar criminal activity, (ii) interferes with the course of investigation, (iii)
attempts to tamper with evidence or witnesses, (iv) threatens witnesses or
indulges in similar activities which would hamper smooth investigation, (v)
there is likelihood of his fleeing to another country, (vi) attempts to make
himself scarce by going underground or becoming unavailable to the
investigating agency, (vii) attempts to place himself beyond the reach of his
surety, etc. The above grounds are illustrative and not exhaustive. It must
also be remembered that rejection of bail stands on one footing but
cancellation of bail is a harsh order because it interferes with the liberty of
the individual and hence it must not be lightly resorted to.
Witness present for examination. Accused is absent. Bail can be

cancelled State of U.P v. Shambhu Nath Singh AIR 2001 SC 1403
When accused misused the liberty and violated the conditions, bail
can be cancelled. Mehboob Dawood Shaikh v. State of Maharashtra (2004)
(2) SCC 362
Default bail can also be cancelled under Sec.437 (5) Abdul Basit @
Raju v. Md. Abdul Kadir Chaudhary 2014 (10) SCC 754
Notice
Notice to accused is mandatory before cancellation of bail. --Rakesh Kumar

Paul v. State of Assam AIR 2017 SC 3948)
Default Bail – Sec.167(2) Proviso
Under Sec.167 (2) accused gets an indefeasible right to be released on bail

if final report is not filed within the statutory period of 60 or 90 days, as
the case may be. The case in which the maximum prescribed punishment
is imprisonment for ten years or more, the time period to apply is 60 days.
(See Rakesh Kumar Paul v. State of Assam AIR 2017 SC 3948)
The period of 90 days or 60 days shall be computed from the date of
remand and not from the date of arrest (CBI v. Anupam J. Kulkarni AIR
1992 SC 1768). Date of remand to be excluded in computing the period of
60/90 days but then the date of filing of application of Default Bail be
included or vice versa.Ravi Prakash Singh v. State of Bihar (2015) 8 SCC
340 (Two Judges) State of M.P v. Rustam1995 Sppl. 3 SCC 221
Suitable conditions can be imposed as it is deemed to be a bail
granted under Chapter XXXIII. Default bail can be granted only on the
91stday/61stday, if no police report under section 173 Cr.P.C. is filed. On
the 91stday/61stday both bail Application and Charge sheet filed- Bail
can be granted if the accused has availed of the opportunity of bail prior to
filing of Charge Sheet. Uday Mohanlal Acharya v. State of Maharashtra,
(2001) 5 SCC 453
Punishment for the Offence Maximum Days
Death 90 days
Life Imprisonment 90 days
Imprisonment for a term up to 60days
10 years Explained in Rakesh Kumar Paul v.
State of Assam2017 SC 3948
Minimum 10 years not to be considered
(AIR 2001 SC 2369)
Any other case 60 days
Default bail can be availed by an accused arrested and produced by
a non-police Officer like Customs, Excise, Forest etc.(Directorate of
Enforcement v. Deepak Mahajan AIR 1994 SC 1775 and Jeewan Kumar
Raut v. CBI AIR 2009 SC 2763)
Where the accused is in custody in a case under investigation by the
police and after submission of police report under Section 173, further
investigation by the CBI is directed, Period of custody shall be computed
from the date of the FIR by the CBI and not from the initial detention
under the Police case. In this case it was held that the benefit of default
bail was not available to the accused Vipul Sithal State of Gujrat (2013) 2
SCC (Cri) 475
A person accused of an offence under section 3 read with section 4 of

Money Laundering Act 2002 could not get the benefit of provisions of
section 167 (2) Cr.P.C.2010 (2) JCR 415 Hari Narayan Vrs. Union of India
Has the accused an indefeasible right to ―compulsive bail‖ i.e. ―default

bail‖ under the proviso to Section 167 (2) Cr.P.C. on the expiry of the
period of 90 days or 60 days whichever is applicable? –Yes--AIR 2001 SC
1910, Uday Mohan Acharya Case, Sanjay Dutt case, Pragya Singh Thakur
case and Nirala Yadav Case.
In a case where the accused has been released on compulsive bail

under the proviso to Sec. 167 (2) Cr.P.C. during the crime stage, is it not
permissible for the Court to cancel the bail by examining the case on merit
upon the filing of the charge sheet?--No, the court is not justified to cancel
the bail once granted. Filing of charge sheet is attributable to police and
not the accused. Power to Cancel Bail is under S. 437 (5) CrPC. The Code
does not give the ground to cancel bail. Post bail conduct is very relevant
in canceling the bail. If he threatens / intimidated the witnesses, if he
absconds, gone abroad without informing, committed another offence,
misuse the provision on bail. AIR 1996 SC 2897Bipin Shantilal Panchal
(Dr) v. State of Gujarat, (1996) 1 SCC 718
After the accused has been released on compulsive bail under the
proviso to Sec. 167 (2) Cr.P.C., one of the sureties is discharge by recourse
to Sec. 444 Cr.P.C. The accused is unable to furnish fresh surety
immediately. Should not the accused be remanded to custody by invoking
Sec. 309 (2) Cr.P.C. ? -- He should be given reasonable time to find
another surety. AIR 1991 SC 149
In a case where the default period is 90 days and no charge sheet is

filed till the expiry of 90 days, the investigating officer files the charge –
sheet on the 93rd day. The accused approaches the High Court and seeks
compulsive bail alleging that even though he had orally represented to the
Magistrate that he has prepared to offer bail the Magistrate did not suo
motu grant compulsive bail which was an indefeasible right which had
accrued to him. What is the legal position? --Readiness to offer for bail
should be in writing AIR 2001 SC 1910Uday Mohanlal Acharya
If within the period of expiry of the default period no charge-sheet is

filed by the police, is there any obligation on the part of the Magistrate to
inform the accused that the accused has got an indefeasible right to apply
for default bail (compulsive bail) and to ensure that the accused is
provided with free legal aid for the purpose of filing the necessary bail
application? – Yes, is it the duty of the Magistrate to inform the accused
about this right to default / compulsive bail.--Hussain Ara Khatoon v.
State of Bihar
The default period applicable for the offence is 90 days. The accused is
arrested on 2-09-2012. He is remanded to judicial custody on 3-09-2012.
Charge sheet is filed before the Magistrate on 2-12-2012. How is the
period to be computed ? Is the charge sheet filed within time ?---Time
should be computed from date of remand and not date of arrest. Exclude
first day and add the last day in calculating the period as per S. 9 and S.
10 of GC ActAIR 1995 SC Suppl. 221
Is a Magistrate or a Special Judge obliged to release an accused on

compulsive bail under the proviso to Sec. 167 (2) Cr.P.C. in a case where
the arrest and production before Court were made by a non-police officer?-
-– Police officer is not necessary, police officers for the purpose of
conducting investigation is also included. Non-police officer also covered.
Example – Customs Officer cannot file a charge sheet but only a

complaint although he has limited powers such as to conduct
investigation.--Directorate of Enforcement v. Deepak Mahajan 1994 SC
(Very Important) – Jivan Kumar Raut AIR 2009 SC 2763
Does the provision for compulsive bail under the proviso to Sec. 167
(2) Cr.P.C. override Sec. 37 of the Narcotic Drugs and Psychotropic
Substances Act, 1985 (N.D.P.S. Act ) ? – Yes, because in the matter of S.
167 CrPC is a special law and it is not on the case of merit.
Notwithstanding clause – S. 37 NDPS is applicable only to regular bail
granted on merits of the case.AIR 1993 SC 1403Two statutory grounds:
Court should be satisfied that he is not guilty of the offence and not
commit any offence while on bail.
Checklist while considering compulsive bail under section 167(2)
Cr.P.C.:
(i) When the court receives an application for grant of default bail it
must call for a report from its office in writing mentioning date
and time of calling such report regarding status of police report
under section 173 Cr.P.C.
(ii) The office must immediately report the status as to whether police
report under section 173 Cr.P.C. has been submitted till the
submission of report or not. It shall be incumbent upon the court
as well as the Magistrate to call for report from the e-Filing
Counter regarding the status of filing of Police report
(iii) The court should then hear the APP as well as the applicant and
decide the application on the same day. No adjournment to be
granted to the prosecution for hearing of the bail application, if
any adjournment is granted and in the mean time after the right of
statutory bail is exercised by filing an application for bail, the said
right or bail cannot of indefeasible bail cannot be extinguished by
granting of adjournment.
(iv) However, where the fault does not lie with the court in granting
any adjournment for hearing and there has been delay in
submitting of bail application or furnishing of bail bond by the
petition accused then such an indefeasible right of bail cannot be
claimed if the chargesheet has been filed in the mean time. The
accused must therefore, furnish the bail bonds immediately
thereafter in case bail is granted failing which his right of getting
bail shall be extinguished as non-sustainable. In Kunal @Kunal
Kumar Mahto Vs. State of Jharkhand, SLP (Cri) 7537 of 2016,
order dated 22/11/2016-the Hon‘ble Apex Court in its judgment
has observed ―Since it is not a matter of dispute, that when the
challan was presented on 08.07.2015, the petitioner had not
furnished bail bonds, for the acceptance of the Court, in
compliance of the order passed (by the trial court) on 07.09.2015.
The claim of the petitioner under Section 167(2) of the Criminal
Procedure Code, after the presentation of the challan was just not
sustainable.”
(v) Before furnishing of the bail bond if the police report is received
then as per the ratio Nirala Yadav case and Kunal @ Kunal
Kumar Mahto the right for default bail shall be extinguished.
Bond & Its Forfeiture
Sec.446 mentions the procedure for forfeiture of the bond. It applies

to all bonds taken under the Code. If a Magistrate takes a bond from the
accused to appear before another Magistrate, the bond is not invalid, and
can be forfeited under this Section.
Steps to be followed in cases of breach of bond/ bail bonds
(i) The wording in the bond be constructed strictly. Regarding
forfeiture is concerned, once there is a breach by the accused by
not appearing before the court, the forfeiture is not automatic.
The court has to pass a clear cut order of forfeiture of bail
bond and cancellation of bail followed by notice to the
sureties.
(ii) Notice has to be issued under Sec.446after forfeiture calling
upon the surety to pay the penalty or to show cause why
penalty not be imposed on him. What the Section requires is
that the Magistrate satisfies himself that the conditions of the
bond having been violated, the bond stands forfeited.
(iii) There is no need to issue notice before the forfeiture and the
notice need be sent under Sec.446only after forfeiture of the
bond. Subsequent to service of notice distress warrants for the
realization of sum forfeited from the surety can be issued. Once
the surety is produced before the court on the strength of
distress warrant with an execution report that the surety has no
sufficient means to pay the forfeited amount which is mentioned
as a penalty in Sec.446, the court can proceed as per provision
under sections 421 or 431 of the Cr.P.C. If the bond amount is
not recovered by the above process the surety shall be liable to
imprisonment in civil jail for a term which may extend to six
months under Sec.446(2). It may be clarified that in a police
case since state is the party therefore any amount to be
deposited for civil imprisonment shall be made by the
government. In case of insolvency or death of the surety
recourse can be taken to section 447.
(iv) The records of the court must reflect the satisfaction of the
judge about the absence of the accused. Forfeiture of the bond
without formal order about the satisfaction of the court that
bond has been forfeited is bad in law. Before forfeiture the court
has no jurisdiction to issue notice.
(v) The satisfaction of the court must be based upon some proof. If
the accused executed bond for his appearance, non-appearance
itself is sufficient proof about the forfeiture.

(vi) On the next day of the forfeiture of the bond surety produces
the accused still it is a breach of condition of the bond. But the
court may, in such cases take a lenient view in the matter of
recovery of the bond amount from the accused and sureties.
(vii) Before imposing penalty it is mandatory that the sureties are
heard. The notice issued itself is for paying the penalty or to
show cause why it not be paid. If the sureties are present in
pursuance of notice they be heard and order has to be passed.
(viii) If the accused is arrested in connection with some other crime
and the sureties are unable to produce the accused that may be
a ground not to forfeit the bond. In other words, if the accused
is in a jail then the sureties can plead their inability to produce
the accused.
(ix) Once bond is forfeited, it is no longer valid and if the accused is
to be released on bail again, a fresh bond has to be executed. It
cannot be argued that the liability of the sureties is co-extensive
with that of the accused. Such a principle is not applicable in
criminal cases.
(x) The Magistrate can impose penalty on the accused as well as
sureties for the breach. Bond of accused and sureties are
independent and therefore, when the bail is cancelled and the
bond is forfeited, logically the accused is also supposed to pay
the forfeited amount on his subsequent surrender or arrest
unless it is remitted under Sec.446(3).(Ramlal v. UP AIR 1979
SC 1498).
(xi) As discussed above it may be pointed out further that the court
has the power not only to realize the bond amount from the
surety but also from the accused on whose non appearance the
bail has been cancelled. The is abundantly clear from Form
number (M81) of the Criminal Court Rules Vol. II of Hon‘ble

High Court of Jharkhand wherein the accused and the sureties
separately undertake and bind themselves under the bond to
forfeit to government the sum of rupees for which they have
stood surety. Meaning thereby the court can practically ask the
accused when he reappears before the court after the
cancellation of his earlier bail to deposit the amount of earlier
bond which had been forfeited on account of his non-
appearance / misuse.
(xii) The court has ample power to remit the penalty, penalty here
means the bond amount, which was forfeited. There is no rule
that entire bond amount be imposed as penalty. But remitting
of penalty can be done only at the time of imposing the penalty.
Subsequently penalty can be remitted only by the appellate
court. (Jameela v. State of Kerala 2004 Cri LJ 3389 :2004 SCC
OnLine Ker 436)
(xiii) As per Sec.446A of the Code, if the bond is for appearance of a
person in a case and it is forfeited for breach of condition, the
bond executed by the accused as well as sureties, if any, shall
stand cancelled. Thereafter such a person cannot be released on
personal bond, if the court is satisfied that there is no sufficient
cause for non-compliance with the condition.
(xiv) Even if the bond is executed as per the direction of any superior
court, this provision is applicable. In case of the sureties
becoming insolvent or dead the accused be given an opportunity
to produce sufficient solvent sureties.
(xv) The court has power to initiate prosecution for offence
punishable under section 229A of IPC for failure by person
released on bail or bond to appear in court.

4. COMPLAINTS TO MAGISTRATE AND COMMENCEMENT OF
PROCEEDINGS (CHAPTER – XV& XVI)
When a complaint is filed in the court the court can initiate an

enquiry under section 200 and examine the complainant and his
witnesses on oath and if satisfied, can according to the material brought
before it issue processes under section 204 Cr.P.C. But if the Magistrate is
of the opinion that there is no sufficient ground for proceeding the
complaint be dismissed under section 203 Cr.P.C.
Where the chargesheet is submitted and cognizance is taken on its
basis, the processesare issued against the accused under section 204
Cr.P.C.in summons cases the summons are issued and in warrant cases
he may issue a warrant, or if he thinks fit a summons, for causing the
accused to be brought before the court.
In case the police submits final form either on the ground that no
accused can be sent up for trial or no offence took place etc. a notice is to
be issued to the complainant before acceptance of final form and after
affording the complainant adequate opportunity of being heard may accept
the final form and drop further proceedings. The court may differ from the
finding of the Investigating officer and take cognizance on the basis of
material available in the charge sheet and proceed further for commitment
or trial. If the informant appears and files a protest petition the protest
petition may be registered as a complaint and the court may proceed with
enquiry of the complaint case.
 In complaint cases during enquiry apart from the SA of the
complainant how many witness need to be examined?
The Magistrate may record evidences of witnesses on oath in terms
of section 200(2) and where it appears that the offence complained of is
triable exclusively by the Court of Session, he shall call upon the
complainant to produce all his witnesses and examine them on oath.
Shivaji Singh Vs. Nagendra Tiwari, 2010 (3) East. Cri. Case 226 SC-
Complainant is not bound to examine all the witnesses named in the
complaint or whose names are disclosed in response to the order passed
by the Magistrate. Only those witnesses are required to be examined
whom the complainant considers material to make out a prima facie
case for issue of process.
Acceptance of FF and protest.Vasanti Dubey Vs. State of Madhya Pradesh,
(2012) 2 SCC 731 : 2012 (1) JLJR 459-
The enquiry under section 200Cr.P.C. cannot be given a go-bye if the
Magistrate refuses to accept the closure report submitted by the
investigating agency as this enquiry is legally vital to protect the affected
party from a frivolous complaint and a vexatious prosecution in complaint
cases. The relevance, legal efficacy and vitality of the enquiry enumerated
under section 200 Cr.P.C., therefore, cannot be undermined, ignored or
underplayed as compliance of enquiry under section 200 Cr.P.C. is of vital
importance and necessity as it is at this stage of the enquiry that the
conflict between the finding arrived at by the investigating agency and
enquiry by the Magistrate can prima facie justify the filing of the complaint
and also offer a plank and a stage where the justification of the order of
cognizance will come to the fore. This process of enquiry under section 200
Cr.P.C. is surely not a decorative piece of legislation but is of great
relevance and value to the complainant as well as the accused.
It is no doubt possible to contend that at the stage of taking

cognizance or refusing to take cognizance, only prima facie case has to be
seen by the Court. But the argument would be fit for rejection since it is
nothing but mixing up two different and distinct nature of cases as the
principle and procedure applied in a case based on Police report which is
registered on the basis of First Information Report cannot be allowed to
follow the procedure in a complaint case. A case based on a complaint
cannot be allowed to be dealt with and proceeded as if it were a case based
on Police report. While in a case based on Police report, the Court while
taking cognizance will straightaway examine whether a prima facie case is
made out or not and will not enter into the correctness of the allegation
levelled in the F.I.R., a complaint case requires an enquiry by the
Magistrate under section 200Cr.P.C. if he takes cognizance of the
complaint. In case he refuses to take cognizance he may either dismiss the
complaint or direct the investigating agency to enter into further
investigation. In case, he does not exercise either of these two options, he
will have to proceed with the enquiry himself as envisaged and
enumerated under section 200 Cr.P.C. But, he cannot exercise the
fourth option of directing the Police to submit a charge-sheet as
such a course is clearly not envisaged under the Cr.P.C. and more so
in a complaint case.
Whether reasons need to be recorded while accepting Final

Form?
Sections 173(1), and 190(1)Criminal Procedure Code, 1973- Police
Report Exercise of Judicial discretion- When a report u/s 173(1)
submitted to the effect that no case had been made out and complainant
raising objections to the acceptance of police report which recommends
discharge of accused, the Court overruling such objections has to record
reasons. However, recording of reasons not necessary when Court accepts
such police report without any objection from complainant.Mrs. Rupan
Deol Bajaj & Anr. – versus Kanwar Pal Singh Gill & Anr 1996 0 AIR(SC)
309; 1995 6 SCC 194
Second Complaint
It is settled law that there is no statutory bar in filing a second
complaint on the same facts. In a case where a previous complaint is
dismissed without assigning any reasons, the Magistrate under Section
204 CrPC may take cognizance of an offence and issue process if there is
sufficient ground for proceeding. As held in Pramatha Nath Talukdar case
AIR 1962 SC 876 : second complaint could be dismissed after a decision
has been given against the complainant in previous matter upon a full
consideration of his case. Further, second complaint on the same facts
could be entertained only in exceptional circumstances, namely, 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 or where new facts which could not, with reasonable diligence,
have been brought on record in the previous proceedings, have been
adduced.
Case Not True: Final Form Submitted by Police Along with

Application Under Section 182 and 211 Of IPC.
Where at the time of submission of final form the Investigating officer has
submitted application under section 182/211 of I.P.C. as the case may be
for taking cognizance against the informant the court may take cognizance
on such application treating it to be an official complaint. But, the case
would be different if the complainant appears and files a protest against
the final form.
Can Magistrate accept FF without entering into inquiry on the basis

of the protest petition?
It has been held in Vishnu Kumar Tiwari Vs. State of U.P. reported in
2019 (3) PLJR 334 SC : 2019 (8) SCC 27 –that Magistrate can not be
compelled to take cognizance by treating the protest petition as a
complaint . He may without considering the complaint apply his mind to
the facts emerging from investigation and take cognizance under section
190(1)(b) and is not bound to follow the procedure under sections 200 and
202 Cr.P.C . It is incumbent upon Magistrate to go through the materials
and after hearing the complainant and considering the contents of protest
petition, finally decide the future course of action to be, whether to
continue with the matter or to close the case.

Thus, when he proceeds to take action by way of cognizance by
disagreeing with the conclusions arrived at in the police report, he would
be taking cognizance on the basis of the police report and not on the
complaint. And, therefore, the question of examining the complainant or
his witnesses under sections 200of the Code would not arise.
Once a complaint has been forwarded to the police U/S 156(3),

and FF has been submitted by the police after investigation, can the
Magistrate proceed as per the original complaint?
In H.S. Bains (1980 4 SCC 631 H. S. Bains, Versus The State ), there was
a private complaint within the meaning of Section 190(1)(a) of the Code.
The matter was referred to the Police U/S 156(3). The Investigating Officer
filed a final report. Therein, the court took the view that apart from the
power of the Magistrate to take cognizance notwithstanding the final
report, under Section 190(1)(b), he could also fall back upon the private
complaint which was initially lodged but after examining the complainant
and his witnesses, as contemplated under Sections 200 and 202 of the
Code. In regard to taking cognizance under Section 190(1)(b) of the Code of
a final report, undoubtedly, it is not necessary to examine the complainant
or his witnesses though he may do so.
In Mahesh Chand (2003 1 SCC 734 Mahesh Chand – versus B. Janardhan

Reddy & Anr.), it has been further held that no doubt the matter was
commenced by a First Information Report and followed up by the
complainant in the court under Section 190(1)(a) of the Code. On the First
Information Report, after investigation, a final report was filed. The final
report came to be accepted and it was closed. This is despite the fact that
there was the protest petition. A third complaint, as it were, came to be
filed by the complainant. The Court went on to hold that acceptance of
the final report would not stand in the way of taking cognizance on
a protest/complaint petition.

In Kishore Kumar Gyanchandani (2001 10 SCC 59 Kishore Kumar
Gyanchandani versus G. D. Mehrotra), after the final report was accepted
on a protest petition which was treated as a complaint, evidence was taken
within the meaning of Section 200 of the Code. There is no bar to enter
into inquiry on protest petition being filed even after the acceptance of
Final Form.
In Rakesh Kumar (2014 13 SCC 133 Rakesh & anr versus State of U.P. &
anr. ), the final report was filed which was accepted by the Magistrate but
he simultaneously directed the case to be proceeded as a complaint case
and statements under Sections 200 and 202 of the Code came to be
recorded. Acceptance of final report would not stand in the way of
taking cognizance on a protest / complaint petition.
Steps to Be Taken by The Magistrate On Receipt of a Closure Report /

FF with A Recommendations for Prosecution 182 / 211 IPC Against
the Informant
As discussed earlier, the first step to be taken after receipt of a
closure report is to issue notice to informant before accepting the said
report. However, protest petition can be entertained even after the
acceptance of the final report in the light of the ratio discussed above.
Thereafter, on considering the entire material on record the Magistrate has
two options. First either to accept the final report as per the ratio in
Vishnu Tiwari case and proceed on the application of the I.O. for initiating
prosecution under section 182/211 as official complaint. Secondly, he can
proceed in enquiry on the protest petition as a complaint case. In the later
course further steps on the recommendation for prosecution under
182/211 can be taken only if the protest petition is dismissed under
section 203 of the Cr.P.C. Where the court takes cognizance against the
accused on the basis of protest petition the application under section
182/211 of Cr.P.C. may be dropped as both the trials cannot proceed

together.

5. COGNIZANCE (CHAPTER –XIV- Section 190 - 199)
Criminal proceedings are in fact not instituted until the Magistrate

has taken cognizance of the offence alleged under section 190 of the
Cr.P.C. While sections 190 to 194 are enabling provision for taking
cognizance, section 195 to 199 are disabling provisions restricting and
regulating the power of taking cognizance. It is a settled position of law
that cognizance is taken of offence and not of offenders on any of the three
cases mentioned in clause (a) to (c) of section 190. In N.I. Act cases
however, the cognizance is taken against a particular accused. It has been
held in N. Harihara Krishnan Vs. I. Thomas, 2018 (13) SCC 663 that ―by
the nature of the offence under section 138 of the N.I.Act, the first
ingredient constituting the offence is the fact that a person drew a cheque.
The identity of the drawer of the cheque is necessarily required to be
known to the complainant and needs investigation and would not normally
be in dispute unless the person who is alleged to have drawn a cheque
disputes that very fact.Therefore, in the context of a prosecution under
section 138, the concept of taking cognizance of the offence but not
of the offender is not appropriate.‖
Meaning – ―Cognizance‖ and ―commencement of proceedings‖ are not
synonyms in their connotation. Cognizance is something prior to, and does
not necessarily mean the commencement of judicial proceeding against
anyone. The apex court has been pleased to hold in 2015 9 SCC 609 S.R.
Sukumar versus S. Sunaad Raghuramthat Section 200 Cr.P.C. provides
for the procedure for Magistrate taking cognizance of an offence on
complaint. The Magistrate is not bound to take cognizance of an offence
merely because a complaint has been filed before him when in fact the
complaint does not disclose a cause of action. The language in Section 200
Cr.P.C. ―a Magistrate taking cognizance of an offence on complaint shall
examine upon oath the complainant and the witnesses present, if any…‖
clearly suggests that for taking cognizance of an offence on complaint, the
Court shall examine the complainant upon oath. The object of examination
of the complainant is to find out whether the complaint is justifiable or is
vexatious. Merely because the complainant was examined that does not
mean that the Magistrate has taken cognizance of the offence. Taking
cognizance of an offence means the Magistrate must have judicially
applied the mind to the contents of the complaint and indicates that
Magistrate takes judicial notice of an offence. Mere presentation of the
complaint and receipt of the same in the court does not mean that the
Magistrate has taken cognizance of the offence. In Narsingh Das Tapadia
vs. Goverdhan Das Partani & Another., AIR 2000 SC 2946, it was held that
the mere presentation of a complaint cannot be held to mean that the
Magistrate has taken the cognizance. In Subramanian Swamy vs.
Manmohan Singh & Another, (2012) 3 SCC 64, the Apex Court explained
the meaning of the word ‗cognizance‘ holding that ―…In legal parlance
cognizance is taking judicial notice by the court of law, possessing
jurisdiction, on a cause or matter presented before it so as to decide whether
there is any basis for initiating proceedings and determination of the cause
or matter judicially‖. Proceedings commence only when the accused person
is made a party before the court.
At this stage the Court, after application of mind to the evidence of
witnesses has to satisfy itself that a prima facie case is made out.
The Apex Court in Darshan Singh Ram Krishna VS. State of
Maharastra, 1971 (2) SCC 654held that word ―cognizance‖ is used in the
Code to indicate the point when the Magistrate or Judge takes notice of an
offence.
With regard to cognizance on the basis of a complaint the law has
been laid down in S.K. Sinha, Chief Enforcement Officer Vs. Videocon
International Ltd., 2008 (2) SCC 492―Before it can be said that any
Magistrate has taken cognizance of any offence under section 190(1)(a)
Cr.P.C., 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, When the Magistrate applies his mind not for
the purpose of proceeding under the subsequent sections of this Chapter,
but for taking action of some other kind e.g. ordering investigation under
section 156(3), or issuing a search warrant for the purpose of the
investigation, he cannot be said to be taken cognizance of the offence.‖
In Gopal Das Sindhi Vs. State of Assam, AIR 1961 SC 986it has been
held that before a Magistrate can be said to have taken cognizance under
section 190(1)(a) must have applied his mind for the purpose of
proceedings under various sections of Chapter- XV.
No power to take cognizance of an offence where sanctioned etc.
wanting under sections 132, 188, 195 to 199, 345, 349 of the Cr.P.C.
Can a Magistrate take cognizance of an offence committed
beyond its territorial jurisdiction?
It has been held in Trisuns Chemical Industry Vs. Rajesh Agarwal,
1999 Cr.L.J. 4325 SCthat it is an erroneous view that Magistrate taking
cognizance of an offence must necessarily have territorial jurisdiction to
try the case as well. The jurisdiction of aspect may crop up only after
taking cognizance and the Magistrate may have to decide as to the court
which has jurisdiction to enquire into or try the offence and that situation
would reach only during post cognizance stage and not earlier.
When the charge sheet is submitted by the Investigating Officer
under section 173 of Cr.P.C. the court may take cognizance and issue
processes for appearance of the accused sent up for trial. The court may
differ with the findings of the Investigating Officer and as per the judgment
of Hardeep Singh Vs. State of Punjab – 2014 (3) SCC 92may take
cognizance against the accused persons not sent up for trial. Where the
offences are triable exclusively by the court of sessions it shall be within

the power of the court of sessions to invoke section 193 of Cr.P.C. and
take cognizance against any additional accused under section 193 Cr.P.C.
on the basis of material collected with charge sheet.
The court may direct further investigation of the offence under the
provisions of section 173(8) read with section 156(3) of Cr.P.C. It shall also
not be beyond the powers of Magistrate where it is of the opinion based on
material brought before it not to take cognizance of any of the offences
mentioned in charge sheet or to summon any of the accused sent up for
trial in the charge sheet.
Mahesh Chand v. B. Janardhan Reddy, (2003) 1 SCC 734 : 2003 SCC
(Cri) 425 at page 740
Cognizance Order
There is no definite form for such an order but considering the

principles, it is an important order as this is the first stage for judicial
application of mind on the facts and materials brought on record in a case.
The legal mandate as can be culled out from the different authorities of the
Hon‘ble Court is that the order should reflect judicial application of mind
but no detailed reason need to be assigned at this stage while taking
cognizance. However where the court differs with the findings of
investigation a definite reason needs to be given. Further, although the
cognizance is taken of the offence and not the offenders, but the name of
the accused who have been sent up for trial need to be mentioned along
with the provisions under which the cognizance is being taken. Further,
the Presiding Officer also need to scrutinize the record where the sanction
is required for cognizance,as to whether a proper sanction has been
submitted by the Investigating Officer.
In complaint cases the cognizance may be taken under section 192

Cr.P.C. where the case is made over for enquiry and trial by the
Magistrate. The cognizance taking court in complaint case is deemed to
have taken cognizance when after perusing the complaint it decides to
enter into enquiry himself or orders the investigation to be made by a
Police Officer or such other person as he thinks fit under section
202Cr.P.C. However, where the complaint is forwarded to the concerned
police station for investigation under section 156(3) Cr.P.C. the cognizance
is not deemed to have been taken and that stage arrives only after
conclusion of investigation and submission of the police report under
section 173 Cr.P.C. The difference between investigation ordered under
section 202 and 156(3) is that the former relates post cognizance stage
and the later to pre cognizance stage.
It will be desirable to follow the principle of taking cognizance in the

cases referred herein after:
The Leading Authorities On The Issue Are :
2020 (1) JLJR 199 of Hon‘ble High Court of Jharkhand, Amresh

Kumar Dhiraj and others Vs. State of Jharkhand:
―The order taking cognizance under section 190 Cr.P.C. and order issuing
process under Section 204 Cr.P.C., can very well (sic) a composite order
but as observed, the application of mind would be different in both cases.
This application of mind must be reflected in the order itself. The order
should not be mechanical. Magistrate has to mention at least that there
are sufficient materials to proceed against the persons and what are the
prima-facie materials to proceed against them. He need not pass a detail
judgment evaluating the materials, which are before him. The detail
reasons as to why he is taking cognizance or issuing process re not to be
mentioned but at least what are the bare minimum prima facie materials
against the accused- petitioners should be mentioned in the order issuing
summon and prima facie what offence is alleged, in the order taking
cognizance.‖

Cognizance in complaint cases:
1. 2015 9 SCC 609 S.R. Sukumar versus S. Sunaad Raghuramwhere in

it has been held that Section 200 Cr.P.C. contemplates a Magistrate
taking cognizance of an offence on complaint to examine the
complaint and examine upon oath the complainant and the
witnesses present, if any. Then normally three courses are available
to the Magistrate. The Magistrate can either issue summons to the
accused or order an inquiry under Section 202 Cr.P.C. or dismiss the
complaint under Section 203 Cr.P.C. Upon consideration of the
statement of complainant and the material adduced at that stage if
the Magistrate is satisfied that there are sufficient grounds to
proceed, he can proceed to issue process under Section 204 Cr.P.C.
Section 202 Cr.P.C. contemplates ‗postponement of issue of process‘.
It provides that the Magistrate on receipt of a complaint of an offence
of which he is authorised to take cognizance may, if he thinks fit,
postpones the issue of process for compelling the attendance of the
person complained against, and either inquire into the case himself,
or have an inquiry made by any Magistrate subordinate to him, or an
investigation made by a police officer, or by some other person for the
purpose of deciding whether or not there is sufficient ground for
proceeding. If the Magistrate finds no sufficient ground for
proceeding, he can dismiss the complaint by recording briefly
the reasons for doing so as contemplated under Section 203
Cr.P.C. A Magistrate takes cognizance of an offence when he decides
to proceed against the person accused of having committed that
offence and not at the time when the Magistrate is just informed
either by complainant by filing the complaint or by the police report
about the commission of an offence.
2. ―Cognizance‖ therefore has a reference to the application of judicial
mind by the Magistrate in connection with the commission of an
offence and not merely to a Magistrate learning that some offence
had been committed. Only upon examination of the complainant,
the Magistrate will proceed to apply the judicial mind whether to
take cognizance of the offence or not. Under Section 200 Cr.P.C.,
when the complainant is examined, the Magistrate cannot be said to
have ipso facto taken the cognizance, when the Magistrate was
merely gathering the material on the basis of which he will decide
whether a prima facie case is made out for taking cognizance of the
offence or not. ―Cognizance of offence‖ means taking notice of the
accusations and applying the judicial mind to the contents of the
complaint and the material filed therewith. It is neither practicable
nor desirable to define as to what is meant by taking cognizance.
Whether the Magistrate has taken cognizance of the offence or not
will depend upon facts and circumstances of the particular case.
3. It has been earlier held in 2005 7 SCC 467CREF Finance Ltd.
versus Shree Shanthi Homes Pvt. Ltd. & Anrthat the cognizance is
taken of the offence and not of the offender and, therefore, once
the Court on perusal of the complaint is satisfied that the complaint
discloses the commission of an offence and there is no reason to
reject the complaint at that stage, and proceeds further in the
matter, it must be held to have taken cognizance of the offence. One
should not confuse taking of cognizance with issuance of
process. Cognizance is taken at the initial stage when the
Magistrate peruses the complaint with a view to ascertain
whether the commission of any offence is disclosed. The
issuance of process is at a later stage when after considering
the material placed before it, the Court decides to proceed
against the offenders against whom a prima facie case is
made out. It is possible that a complaint may be filed against
several persons, but the Magistrate may choose to issue process

only against some of the accused. It may also be that after taking
cognizance and examining the complainant on oath, the Court may
come to the conclusion that no case is made out for issuance of
process and it may reject the complaint. It may also be that having
considered the complaint, the Court may consider it appropriate to
send the complaint to police for investigation under Section 156(3)
of the Code of Criminal Procedure. We can conceive of many other
situations in which a Magistrate may not take cognizance at all, for
instance, a case where he finds that the complaint is not made by
the person who in law can lodge the complaint, or that the
complaint is not entertainable by that Court, or that cognizance of
the offence alleged to have been committed cannot be taken without
the sanction of the competent authority etc. etc.
4. In Ajit Kumar Palit vs. State of West Bengal, (1963) Supp. 1 SCR
953,the Supreme Court has observed:-
―The word ―cognizance‖ has no esoteric or mystic significance in
criminal law or procedure. It merely means — become aware of and
when used with reference to a Court or Judge, to take notice of
judicially. It was stated in Gopal Marwari v. Emperor (AIR 1943
Pat. 245) by the learned Judges of the Patna High Court in a
passage quoted with approval by this Court in R.R. Chari v. State of
Uttar Pradesh (1951 SCR 312) that the word, `cognizance‘ was used
in the Code to indicate the point when the Magistrate or Judge
takes judicial notice of an offence and that it was a word of
indefinite import, and is not perhaps always used in exactly the
same sense. As observed in Emperor v. Sourindra Mohan
Chuckerbutty (1910 ILR 37 Cal. 412), ―taking cognizance does not
involve any formal action; or indeed action of any kind, but occurs
as soon as a Magistrate, as such, applies his mind to the suspected
commission of an offence.‖ Where the statute prescribes the

materials on which alone the judicial mind shall operate before any
step is taken, obviously the statutory requirement must be fulfilled.‖
5. In yet another case of Jagdish Ram VS State Of Rajasthan2004 4
SCC 432it has been held that at this stage, the Magistrate had only
to decide whether sufficient ground exists or not for further
proceeding in the matter. It is well settled that notwithstanding
the opinion of the police, a magistrate is empowered to take
cognizance if the material on record makes out a case for the
said purpose. The investigation is the exclusive domain of the
police. The taking of cognizance of the offence is an area
exclusively within the domain of a Magistrate. 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 the conviction, can be determined only at the trial
and not at the stage of inquiry. At the stage of issuing the
process to the accused, the Magistrate is not required to
record reasons. (Dy. Chief Controller of Imports & Exports v.
Roshanlal Agarwal & Ors. (2003) 4 SCC 139).
6. If the trial Court decides to frame a charge there is no legal
requirement that he should pass an order specifying the reasons as
to why he opts to do so. Framing of charge itself is prima facie order
that the trial Judge has formed the opinion, upon considering the
police report and other documents and after hearing both sides,
that there is ground for presuming that the accused has committed
the offence concerned. We can appreciate if such a detailed order
has been passed for culminating the proceedings before them. But it
is quite unnecessary to write detailed orders at other stages, such
as issuing process, remanding the accused to custody, framing of
charges, passing over to next stages in the trial. Kanti Bhadra Shah

& Anr. Versus The State of West Bengal 2000 1 SCC 722
7. In U.P. Pollution Control Board versus M/s. Mohan Meakins Ltd. &
Ors.2000 3 SCC 745the provisions of Section 204 relating to Issue of
process was discussed and it has been held that a detailed speaking
order not required while issuing summons-Process cannot be
quashed for want of speaking order.
8. In Tula Ram VS Kishore Singh 1977 4 SCC 459 the court relying on
Devarpalli Lakshminarayana Reddy v. V. Narayana Reddy, 1976
Supp SCR 524observed as follows:
"The power to order police investigation under S. 156 (3) is different

from the power to direct investigation conferred by Sec. 202 (1). The
two operate in distinct spheres at different stages. The first is
exercisable at the pre-cognizance stage, the second at the post-
cognizance stage, when the Magistrate is in seisin of the case. That
is to say in the case of a complaint regarding the commission of a
cognizable offence, the power under Section 156 (3) can be invoked
by the Magistrate before he takes cognizance of the offence under S.
190 (1) (a). But if he once takes such cognizance and embarks upon
the procedure embodied in Chapter XV, he is not competent to
switch back to the pre-cognizance stage and avail of Section 156
(3)."
9. In the case of Gopal Das Sindhi v. State of Assam, AIR 1961 SC 986
the Hon'ble Supreme Court while approving the observations of
Justice Das Gupta in the case referred to above observed as follows
(at p. 989):"It would be clear from the observations of Mr. Justice
Das Gupta that when a Magistrate applies his mind not for the
purpose of proceeding under the various sections of Chapter XVI
but for taking action of some other kind, e.g. ordering investigation
under S. 156 (3) or issuing a search warrant for the purpose of

investigation, he cannot be said to have taken cognizance of any
offence."
10. To the same effect is the decision of this Court in Jamuna Singh
v. Bhadai Sah (1964) 5 SCR 37 at p. 41 :"It is well settled now that
when on a petition of complaint being filed before him a Magistrate
applies his mind for proceeding under the various provisions of
Chapter XVI of the Code of Criminal Procedure, he must be held to
have taken cognizance of the offence mentioned in the complaint.
When however he applies his mind not for such purpose but for
purposes of ordering investigation under S. 156 (3) or issues a
search warrant for the purpose of investigation he cannot be said to
have taken cognizance of any offence." In these circumstances the
inescapable conclusion is that in the present case the Magistrate
had not taken cognizance of the case and ordered investigation by
the police under S. 156 (3) before applying his mind to the
complaint. This being the position it was always open to the
Magistrate to take cognizance of the complaint and dispose it of
according to law, that is to say according to the provisions of Ss.
190, 200 and 202.
Thus on a careful consideration of the facts and circumstances of the case

the following legal propositions emerge:
1. That a Magistrate can order investigation under S. 156 (3)

only at the pre-cognizance stage, that is to say, before taking
cognizance under Sections 190, 200 and 204 and where a Magistrate
decides to take cognizance under the provisions of Chapter 14 he is not
entitled in law to order any investigation under Section 156 (3) though in
cases not falling within the proviso to Section 202 he can order an
investigation by the police which would be in the nature of an enquiry as
contemplated by Sec. 202 of the Code.

2. Where a Magistrate chooses to take cognisance he can adopt any
of the following alternatives:
(a) He can peruse the complaint and if satisfied that there are
sufficient grounds for proceeding he can straightaway issue process to the
accused but before he does so he must comply with the requirements of
Section 200 and record the evidence of the complainant or his witnesses.
(b) The Magistrate can postpone the issue of process and direct an
enquiry by himself.
(c) The Magistrate can postpone the issue of process and direct an
enquiry by any other person or an investigation by the police.
3. In case the Magistrate after considering the statement of the

complainant and the witnesses or as a result of the investigation and the
enquiry ordered is not satisfied that there are sufficient grounds for
proceeding he can dismiss the complaint.
4. Where a Magistrate orders investigation by the police before taking

cognizance under S. 156 (3) of the Code and receives the report thereupon
he can act on the report and discharge the accused or straightaway issue
process against the accused or apply his mind to the complaint filed before
him and take action under Section 190 as described above.
It will be desirable at this stage to discuss the principles for the

required materials for taking cognizance under section 190, dismissal of
complaint under section 203 issuance of process under section 204.
Cognizance On Police Report Under Section 190(1)(b):
2019 SCC OnLine SC 132 State of Gujarat State of Gujarat v. Afroz

Mohammed Hasanfatta – Hon‘ble Apex Court has held:
―23. In para (21) of Mehmood Ali Rehman, this Court has made a fine
distinction between taking cognizance based upon charge sheet filed by

the police under Section 190(1)(b) Cr.P.C. and a private complaint under
Section 190(1)(a) Cr.P.C. and held as under:—
―21. Under Section 190(1)(b) CrPC, the Magistrate has the advantage of a
police report and under Section 190(1)(c) CrPC, he has the information or
knowledge of commission of an offence. But under Section 190(1)(a) CrPC,
he has only a complaint before him. The Code hence specifies that ―a
complaint of facts which constitute such offence‖. Therefore, if the
complaint, on the face of it, does not disclose the commission of any
offence, the Magistrate shall not take cognizance under Section 190(1)(a)
CrPC. The complaint is simply to be rejected.‖
24. In summoning the accused, it is not necessary for the Magistrate to

examine the merits and demerits of the case and whether the materials
collected is adequate for supporting the conviction. The court is not
required to evaluate the evidence and its merits. The standard to be
adopted for summoning the accused under Section 204 Cr.P.C. is not the
same at the time of framing the charge. For issuance of summons under
Section 204 Cr.P.C., the expression used is ―there is sufficient ground for
proceeding…..‖; whereas for framing the charges, the expression used in
Sections 240 and 246 IPC is ―there is ground for presuming that the
accused has committed an offence…..‖. At the stage of taking cognizance
of the offence based upon a police report and for issuance of summons
under Section 204 Cr.P.C., detailed enquiry regarding the merits and
demerits of the case is not required. The fact that after investigation of the
case, the police has filed charge sheet along with the materials thereon
may be considered as sufficient ground for proceeding for issuance of
summons under Section 204 Cr.P.C.
25. In so far as taking cognizance based on the police report, the

Magistrate has the advantage of the charge sheet, statement of witnesses
and other evidence collected by the police during the investigation.
Investigating Officer/SHO collects the necessary evidence during the
investigation conducted in compliance with the provisions of the Criminal
Procedure Code and in accordance with the rules of investigation.
Evidence and materials so collected are sifted at the level of the
Investigating Officer and thereafter, charge sheet was filed. In appropriate
cases, opinion of the Public Prosecutor is also obtained before filing the
charge sheet. The court thus has the advantage of the police report along
with the materials placed before it by the police. Under Section 190(1)(b)
Cr.P.C., where the Magistrate has taken cognizance of an offence upon a
police report and the Magistrate is satisfied that there is sufficient ground
for proceeding, the Magistrate directs issuance of process. In case of
taking cognizance of an offence based upon the police report, the
Magistrate is not required to record reasons for issuing the process. In
cases instituted on a police report, the Magistrate is only required to pass
an order issuing summons to the accused. Such an order of issuing
summons to the accused is based upon subject to satisfaction of the
Magistrate considering the police report and other documents and
satisfying himself that there is sufficient ground for proceeding against the
accused. In a case based upon the police report, at the stage of issuing the
summons to the accused, the Magistrate is not required to record any
reason. In case, if the charge sheet is barred by law or where there is lack
of jurisdiction or when the charge sheet is rejected or not taken on file,
then the Magistrate is required to record his reasons for rejection of the
charge sheet and for not taking on file. In the present case, cognizance of
the offence has been taken by taking into consideration the charge sheet
filed by the police for the offence under Sections 420, 465, 467, 468, 471,
477A and 120B IPC, the order for issuance of process without explicitly
recording reasons for its satisfaction for issue of process does not suffer
from any illegality.‖

Sanction
Rakesh Mishra Vs. State of Bihar, 2006 1 SCC 557
Section 197(1) provides that when any person who is or was 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 (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 and
(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, or the State Government.
No sanction required for prosecution under section 409 IPC – Pubjab

State Warehousing corporation Vs. Bhushan Chandar, 2016 (4) JBCJ 54
SC -there has to be reasonable connection between the omission or
commission and the discharge of official duty or the act committed was
under the colour of the office held by the official. If the acts omission or
commission is totally alien to the discharge of the official duty, question of
invoking Section 197 CrPC does not arise. The Court observed that the
requirement of the sanction by competent authority or appropriate
Government is an assurance and protection to the honest officer who does
his official duty to further public interest. However, performance of official
duty under colour of public authority cannot be camouflaged to commit
crime. The Court further stated that to proceed further in the trial or the
enquiry, as the case may be, it has to apply its mind and record a finding
that the crime and the official duty are not integrally connected.

Sanction is required when proceeding under section 319 ––2018 SCC
OnLine Jhar 1546 Dhruva Prasad Ojha Versus The State of Jharkhand
through the C.B.I.
In the case of Mansukhlal Vithaldas Chauhan Vs. State of Gujarat, (1997) 7

SCC 622, the Apex Court held that the grant of sanction is not an idle
formality or acrimonious exercise, but a solemn and sacrosanct act which
affords protection to Government servants against frivolous prosecution.
Sanction is a weapon to ensure discouragement of frivolous and vexatious
prosecution. It is a safeguard for the innocent but not a shield for the
guilty. Sanction would therefore be dependant upon the material placed
before the sanctioning authority and the fact that all the relevant material
facts and evidence have been considered by the sanctioning authority.
Consideration implies application of mind. The order of sanction must ex
facie disclose that the sanctioning authority had considered the evidence
and other materials placed before it. Since the validity of sanction
dependent upon applicability of mind by the sanctioning authority to the
facts of the case as also the material and evidence collected during
investigation, sanctioning authority has to apply its independent mind for
the generation of genuine satisfaction whether prosecution has to be
sanctioned or not.
Devendra Singh & others versus State of Punjab through CBI [(2016) 12 SCC
87, the Apex Court examined the principles emerging from its earlier
decisions on the question of sanction for prosecution and summarized
them at para-39, reproduced hereunder:
―39. The principles emerging from the aforesaid decisions are summarised
hereunder:
39.1. Protection of sanction is an assurance to an honest and sincere

officer to perform his duty honestly and to the best of his ability to further

public duty. However, authority cannot be camouflaged to commit crime.
39.2. Once act or omission has been found to have been committed by
public servant in discharging his duty it must be given liberal and wide
construction so far its official nature is concerned. Public servant is not
entitled to indulge in criminal activities. To that extent Section 197 CrPC
has to be construed narrowly and in a restricted manner.
39.3. Even in facts of a case when public servant has exceeded in his duty,
if there is reasonable connection it will not deprive him of protection under
Section 197 Cr PC. There cannot be a universal rule to determine whether
there is reasonable nexus between the act done and official duty nor is it
possible to lay down such rule.
39.4. In case the assault made is intrinsically connected with or related to

performance of official duties, sanction would be necessary under Section
197 Cr PC, but such relation to duty should not be pretended or fanciful
claim. The offence must be directly and reasonably connected with official
duty to require sanction. It is no part of official duty to commit offence. In
case offence was incomplete without proving, the official act, ordinarily the
provisions of Section 197 CrPC would apply.
39.5. In case sanction is necessary, it has to be decided by competent

authority and sanction has to be issued on the basis of sound objective
assessment. The court is not to be a sanctioning authority.
39.6. Ordinarily, question of sanction should be dealt with at the stage of

taking cognizance, but if the cognizance is taken erroneously and the
same comes to the notice of court at a later stage, finding to that effect is
permissible and such a plea can be taken first time before the appellate
court. It may arise at inception itself. There is no requirement that the
accused must wait till charges are framed.
39.7. Question of sanction can be raised at the time of framing of charge

and it can be decided prima facie on the basis of accusation. It is open to
decide it afresh in light of evidence adduced after conclusion of trial or at
other appropriate stage.
39.8. Question of sanction may arise at any stage of proceedings. On a

police or judicial inquiry or in course of evidence during trial. Whether
sanction is necessary or not may have to be determined from stage to
stage and material brought on record depending upon facts of each case.
Question of sanction can be considered at any stage of the proceedings.
Necessity for sanction may reveal itself in the course of the progress of the
case and it would be open to the accused to place material during the
course of trial for showing what his duty was. The accused has the right to
lead evidence in support of his case on merits.
39.9. In some cases it may not be possible to decide the question

effectively and finally without giving opportunity to the defence to adduce
evidence. Question of good faith or bad faith may be decided on conclusion
of trial.‖
Om Prakash Vs. State of Jharkhand, 2012 (4) JLJR 166 SC :2012 12 SCC
72Requirement of sanction to prosecute affords protection to the
policemen, who are sometimes required to take drastic action against
criminals to protect life and property of the people and to protect
themselves against attack. Unless unimpeachable evidence is on record to
establish that their action is indefensible, mala fide and vindictive, they
cannot be subjected to prosecution. Sanction must be a precondition to
their prosecution. It affords necessary protection to such police personnel.
Plea regarding sanction can be raised at the inception.–relied on Matjog
Dubey Vs. H.C. Bahri, AIR 1956 SC 44.
Birla Corporation Vs. Adventz Investments, 2020 (1) PLJR 109 SC:2019 SCC
OnLine SC 682Under the amended sub-section (1) to Section 202 Cr.P.C.,

it is obligatory upon the Magistrate that before summoning the accused
residing beyond its jurisdiction, he shall enquire into the case himself or
direct the investigation to be made by a police officer or by such other
person as he thinks fit for finding out whether or not there is sufficient
ground for proceeding against the accused.
AIR 2013 SC 426: (2012) 13 SCC 1 – Indra Kumar Patodia v. Reliance

Industries Ltd-The court does not contemplate joint complaintand a
complaint without signature is maintainable -
Manharibhai Muljibhai Kakadia v. Shaileshbhai Mohanbhai Patel, (2012) 10

SCC 517 in the proceedings under Section 202 of the Code the
accused/suspect is not entitled to be heard on the question whether the
process should be issued against him or not. As a matter of law, up to the
stage of issuance of process, the accused cannot claim any right of
hearing.
K. M. Mathew Vs. State of Kerala (1992) 1 SCC 217– Discharge after taking
cognizance- the power of the Magistrate to drop proceedings against an
accused in a summons case after process is issued.-held-It is open to the
accused to plead before the Magistrate that the process against him ought
not to have been issued. The Magistrate may drop the proceedings if he is
satisfied on reconsideration of the complaint that there is no offence for
which the accused could be tried. It is his judicial discretion. No specific
provision is required for the Magistrate to drop the proceedings or rescind
the process. The order issuing the process is an interim order and not a
judgment. It can be varied or recalled. The fact that the process has
already been issued is no bar to drop the proceedings if the complaint on
the very face of it does not disclose any offence against the accused.

6. ISSUANCE OF PROCESS AGAINST THE ACCUSED UNDER SECTION
204 Cr.P.C.
Once the court proceeds with the trial and issues processes against
the accused persons either in a case instituted on the basis of FIR or on
the basis of a complaint the accused shall appear in the court or the
accused may fail to appear before the court issuing processes.
Non-appearance of accused :
The court will record its satisfaction in writing regarding non-
appearance of the accused despite proper service of processes against him.
The satisfaction is normally to be recorded after execution report of the
process issued against the accused under section 82 is received and the
court finds that the accused is deliberately avoiding the process. The
materials for record this satisfaction will be:
(a) Service report of summons in terms of 68 of Cr.P.C.
(b) Execution report of warrant
(c) The due publication of proclamation under section 82 to be certified by the
court under 82(3)
(d) On these materials the court to record a finding that the accused person
have absconded and that there is no immediate prospect of arresting him
and proceed to examine the witnesses produced on behalf of the
prosecution in terms of section 299 of Cr.P.C.
(e) It is to be noted that once an accused is declared be proclaimed offender
he is liable to be proceeded under section 174A of the IPC and in other
cases of not appearing in terms of section 82(1) can also be charged under
section 174A.
(f) In case the accused was earlier released on bail and had absconded then
he can be charged under section 229A of IPC.
(g) Steps to be taken against the absconding accused and sureties
(i) Where the accused fails to appear fresh processes need to be issued
after cancelling the bail and forfeiting the bail bond.
(ii) Notices be issued against the sureties to either produce the accused or
to explain why the bail amount be realized.
(iii) After his appearance the court may realize the bail bond amount for
which the accused has earlier given undertaking in form (M)81(bail
bonds). The course is premised on the fact that any bail bond is
executed by the accused for his appearance and Form (M) 81 lays the
primary responsibility of payment on the accused. In any case it is the
basic principle that liability of the surety arises only after the default
of the principal debtor once the bail is cancelled and the bond amount
is forfeited the same is to be realized from the surety if the accused
does not appear and from the accused when he appears. The
procedure when the bond has been forfeited is prescribed in section
446 of Cr.P.C. It has been held in Md. Kunju Vs. State of Karnataka,
AIR 2000 SC 6that forfeiture of a bond would entail the penalty
against each surety for the amount which he has undertaken in the
bond executed by him. Both the sureties cannot claim to share the
amount by half and half as each can be liable to pay.
(h) The procedure for the court concerned will be as follows:
The Court after declaring the accused absconder has two options the
first is to institute a official complaint for the offence punishable
under section 174A of the IPCand the other is to accept any additional
charge sheet submitted by the police for the offence under section
174A of the IPCalong with the main offences. The matter came up
before Hon‘ble Delhi High Court in the matter of A. Krishna Reddy Vs.
CBI, reported in 2017 SCC Online Delhi 7266 Where the Hon‘ble Court
has been pleased to observe ―Offence under section 174A of the IPC,
though independent in nature is an off-shoot of the initial charge-
sheet pending trial before the CBI Court. No separate investigation is
required to be conducted as the orders of the Court declaring the
petitioner to be Proclaimed Offender are part of the record in the main

challan. Object and purpose to incorporate section 174A of the
IPCprimarily is to ensure that the accused/suspects do not scuttle
investigation or trial by remaining absconding without valid or
sufficient reasons. In such a scenario, when the suspects or accused
abscond, possibility of valuable evidence to be washed away cannot be
ruled out. Since CBI had jurisdiction to investigate the main offence,
cognizance by the Court for commission of offence under section 174A
of the IPC, its fall out, cannot be termed illegal or without
jurisdiction.‖
Where the accused fails to appear before the court concerned
despite due service of processes he shall be declared absconder and
appropriate proceedings under section 299 Cr.P.C. may be initiated
against him.
But when the accused appears depending on the nature of
offences the further proceedings shall be initiated.
Where the offences are bailable in nature he shall be released
on bail (section 436 Cr.P.C.)and where the offences are non bailable
he may or may not be admitted on bail (section 437 Cr.P.C.).
Supply of Police Papers
After appearance of the accused one most important step is to supply

copies of such evidences which the complainant or the prosecution is
going to use against him hence the compliance of section 207/208 Cr.P.C.
is mandatory.
In Citizen's Cause v. State of Jharkhand, 2012 SCC OnLine Jhar 87 :
(2012) 2 AIR Jhar R 609 Hon‘ble High Court of Jharkhand has directed
the state to prepare copies for supply to the accused in the following
terms:
―17. In view of the above, we direct the Director General of Police of
the State of Jharkhand to see that Sections 172, 173, 207 and 208 of
Cr.P.C. be complied with strictly and whenever the challan is filed in the
Court of Magistrate that must be filed with the documents as referred
under Section 173 of Cr. P.C. which have already been referred to above,
at the time of filing of the challan. The copy of the police report and Other
documents as referred under Sections 207/208, be provided to the
accused, free of cost. In case of noncompliance of Sections 173, 207 and
208 of Cr. P.C, the trial Court will be free to refuse to accept the challan
with note on the police report or in order-sheet that the documents are not
complete and in that situation, the Investigating Officer and the State
Government shall be responsible for serious consequences which may
occur. Every police officer making an investigation shall maintain case
diary separately as is required under Section 172 of Cr.P.C.‖
In P. GopalKrishnan alias Dileep Vs. State of Kerala, 2020 (1) JLJR
30 SC :2019 SCC OnLine SC 1532it has been held that ―In conclusion, we
hold that the contents of the memory card/pen drive being electronic
record must be regarded as a document. If the prosecution is relying on
the same, ordinarily, the accused must be given a cloned copy thereof to
enable him/her to present an effective defence during the trial. However,
in cases involving issues such as of privacy of the complainant/witness or
his/her identity, the Court may be justified in providing only inspection
thereof to the accused and his/her lawyer or expert for presenting effective
defence during the trial. The court may issue suitable directions to balance
the interests of both sides.‖
COMMITMENT
Where the cognizance of offence has been taken under sections

exclusively triable by the court of sessions the Magistrate will commit the
case to the court of sessions under the provisions of section 209 Cr.P.C.
Where there are more than one accused persons against whom cognizance
has been taken and at least one of them is present at the time of
commitment of the case the entire case shall be committed to the court of
sessions. The court committing the case will not split up the case for
appearance of absconding accused, if any rather shall get the police
papers prepared for such absconding accused and commit the case by
attaching the police papers for such absconding accused. Gagan Thakur
Vs. State of Jharkhand, 2004 Cri.L.J. 1910, AIR (Jhar.) 2004 (0) 1104.
Sessions Case
FIR Complaint
Accused fails to
Supply of Police appear and declared Supply of Police
Papers u/s 207 Crpc Absconder Papers u/s 208
Attach Copies
Commitment
Checklist for commitment

 Accused must be physically present on the date fixed for
commitment. If not on bail he will be remanded into custody for
commitment.
 If there are more than one accused and at least one is present
case can be committed. The case record need not be split up in
such a case and the police papers for service to the absent
accused shall be attached with the case record. Gagan Thakur Vs.
State of Jharkhand, 2004 Cri.L.J. 1910.
 If no accused is present the case cannot be committed on that
date. Issue warrants of arrest for appearance of absent accused
persons.
 After service of Police papers case to be committed
 Notify Commitment to the P.P. and Bar after fixing date of
appearance before the court of Sessions.
 Send the Entire case records to the Court of sessions after
arranging according to rules.
 Accused may be permitted to remain on the previous Bail.
Dealing with A Juvenile in Conflict with Law
When A Juvenile is either produced or appears before a court of law

he shall be dealt with in accordance with the provisions of the Juvenile
Justice (Care and Protection of Children) Act 2015. Section 9 of the Act
prescribes the procedure to be followed by a Magistrate who has not been
empowered under the Act.
(1) When a Magistrate, is of the opinion that the person alleged to have
committed the offence and brought before him is a child, he shall,
without any delay, record such opinion and forward the child
immediately along with the record of such proceedings to the Board
having jurisdiction.
(2) If there are more than one accused persons in the case in hand and
at least one of them is a Juvenile the record shall be split up for the
Juvenile and the record relating to the Juvenile shall be sent to the
Board forthwith.
(3) For sending the Split up record the Court will get the copies of the
FIR and other documents available on the records prepared and
after drawing an order to that effect shall transmit the record to the
Board.
(4) When Charge-sheet is received it shall be copied for the Juvenile

and shall be sent to the Board for taking further action on it.

(5) In case a person alleged to have committed an offence claims that
the person is a child or was a child on the date of commission of the
offence, or if the court itself is of the opinion that the person was a
child on the date of commission of the offence, the said court shall
make an inquiry, take such evidence as may be necessary (but not
an affidavit) to determine the age of such person, and shall record a
finding on the matter, stating the age of the person as nearly as may
be:
(6) If the court finds that a person has committed an offence and was a
child on the date of commission of such offence, it shall forward the
child to the Board for passing appropriate orders and the sentence,
if any, passed by the court shall be deemed to have no effect.
(7) In case a person under this section is required to be kept in

protective custody, while the persons claim of being a child is being
inquired into, such person may be placed, in the intervening period
in a place of safety.
APPLICATION OF SECTION 205 CR.P.C. –
Section 205-Magistrate may dispense with personal attendance of

accused.
(1) Whenever a Magistrate issues a summons, he may, if he sees reason so

to do, dispense with the personal attendance of the accused and permit
him to appear by his pleader.
(2) But the Magistrate inquiring into or trying the case may, in his
discretion, at any stage of the proceedings, direct the personal attendance
of the accused, and, if necessary, enforce such attendance in the manner
hereinbefore provided.

Scope :Section 205 which comes under chapter XVI, deals with the
powers of the Magistrates to dispense with personal attendance of
accused. It would be apparent from the reading of the provision that it
confers discretionary powers on the Magistrate to decide as to whether
personal attendance of the accused in a given case may or may not be
dispensed with. Normally such attendance can be dispensed only when
summons have been issued in the first instance under section 204 of the
Cr.P.C. Section 205 is limited to the stage of commencement of
proceedings and applied to summons issued by a Magistrate. Whereas
under section 317 the appearance is dispensed with on any particular day
where the accused is required to present in person. In what cases the
application under section 205 is allowed will depend upon the facts and
circumstances of the case. The requirement of summon being issued is not
an inflexible rule as will be evident from the ratio of the case cited herein
below:
In Dr. Prakash Amrut Modi Vs. State of Jharkhand 2007 (3) JLJR 17- it was
held that the test basically is the assurance that the courts proceeding
would not be hampered by allowing the personal attendance of the
accused to be dispense with. It would no doubt also depend upon the
gravity of offence. The approach of the Magistrate should be to see whether
personal attendance is absolutely necessary for the purpose of case. While
considering prayer for protection under Section 205 Cr.P.C., the
Magistrate should not adopt too technical or stringent approach though
the discretion should not be used liberally for the mere asking of it. Regard
should be had to exceptional special circumstances and the inconvenience
which the accused is likely to suffer on account of distance or physical
disability or for any such good reason, if his personal attendance is
insisted upon on each and every date till the conclusion of the trial. The
test basically is the assurance that the courts proceeding would not be
hampered by allowing the personal attendance of the accused to be
dispense with. It would no doubt also depend upon the gravity of offence.
The approach of the Magistrate should be to see whether personal
attendance is absolutely necessary for the purpose of case. While
considering prayer for protection under Section 205 Cr.P.C., the
Magistrate should not adopt too technical or stringent approach though
the discretion should not be used liberally for the mere asking of it. Regard
should be had to exceptional special circumstances and the inconvenience
which the accused is likely to suffer on account of distance or physical
disability or for any such good reason, if his personal attendance is
insisted upon on each and every date till the conclusion of the trial.
Rajiv Lochan Jain Vs. The State of Jharkhand, 2003 (2) JLJR 732 -As
a matter of fact issuance of warrant of arrest is no bar in exercising of
power under section 205 of Cr.P.C. if the court finds it to be a fit case in
which exemption should be allowed.
Patna High Court in Ram Harsh Das Versus State Of Bihar 1998 1 PLJR
502held that where a warrant has been issued at the first instance, the
power under Sec. 205 of the Code cannot be exercised.
Special Procedure in Cases Relating To Negotiable Instruments.
Cognizance can be taken in a case under the Negotiable Instruments Act

only on a complaint in writing made to a court. Thus neither there can be
a FIR in case relating to Negotiable Instruments Act nor the complaint can
be sent the Police under the provisions of section 156 (3) Cr.P.C.
DIRECTIONS were given in the case of Indian Bank Association and others
Versus Union of India and others (2014) 5 SCC 590in the following terms:
―DIRECTIONS
1) Metropolitan Magistrate/Judicial Magistrate (MM/JM), on the day when
the complaint under Section 138 of the Act is presented, shall scrutinize the
complaint and, if the complaint is accompanied by the affidavit, and the
affidavit and the documents, if any, are found to be in order, take
cognizance and direct issuance of summons.
2) MM/JM should adopt a pragmatic and realistic approach while issuing
summons. Summons must be properly addressed and sent by post as well
as by e-mail address got from the complainant. Court, in appropriate cases,
may take the assistance of the police or the nearby Court to serve notice to
the accused. For notice of appearance, a short date be fixed. If the summons
is received back un-served, immediate follow up action be taken.
3) Court may indicate in the summon that if the accused makes an
application for compounding of offences at the first hearing of the case and,
if such an application is made, Court may pass appropriate orders at the
earliest.
4) Court should direct the accused, when he appears to furnish a bail bond,
to ensure his appearance during trial and ask him to take notice under
Section 251Cr.P.C. to enable him to enter his plea of defence and fix the
case for defence evidence, unless an application is made by the accused
under Section 145(2) for re-calling a witness for cross-examination.
5) The Court concerned must ensure that examination-in-chief, cross-
examination and re-examination of the complainant must be conducted
within three months of assigning the case. The Court has option of
accepting affidavits of the witnesses, instead of examining them in Court.
Witnesses to the complaint and accused must be available for cross-
examination as and when there is direction to this effect by the Court.
22. We, therefore, direct all the Criminal Courts in the country
dealing with Section 138 cases to follow the above-mentioned
procedures for speedy and expeditious disposal of cases falling
under Section 138 of the Negotiable Instruments Act.‖
Maintainability of second or subsequent complaints, joint
complaints – Neelam Verma Vs. State of Jharkhand, 2010 (4) JCR 446:
2010 (4) JLJR 75-It has been held that when no order of cognizance was
passed on earlier complaint petition which was dropped the second

complaint petition is maintainable despite the fact that filing of earlier
complaint petition was suppressed
As far as cases under N.I. Act is concerned it has been held in K.S. Joseph
Vs. Philips Carbon Black Ltd. & Anr. 2016 (11) SCC 105 – that the
nonobstante clause in section 145 (1) is self-explanatory and overrules
requirement of examination of complainant on SA under section 200
Cr.P.C.
Whether a complaint can be filed by the power of attorney holder in
N.I. Act cases?–
Yes,as per the guidelines laid down in A.C. Narayanan Vs State of
Maharastra, 2015 (12) SCC 203.
Whether a private complaint can be filed against a public servant
under section 200 Cr.P.C. under Prevention of Corruption Act?
It has been held in Anil Kumar & Ors. Vs. M.K. Aiyappa, 2013 (10) SCC
705 that the special Judge cannot order of investigation by police in
exercise of power conferred under section 156(3) Cr.P.C. on a private
complaint without the production of a valid sanction order under section
19 of the P.C. Act.
Once a process has been issued can it be recalled by the court
concerned?
It has been held in Iris Computers Ltd. Vs. Askari Infotech -2015 (14)
SCC399that once process is issued and accused appears, the Magistrate
cannot go back on previous stage to dismiss or return complaint and to
recall his order of issuance of process.

Steps That Magistrate Can Take While Disagreeing with The
Police Report as Submitted Under Section 173 (2) CR.P.C.
The court cannot direct submission of charge sheet –It was held M.C.
Mehta (Taj Corridor scam) v. Union of India, (2007) 1 SCC 110That the
Supreme Court had categorically stated in H.N. Rishbud v. State of
Delhi AIR 1955 SC 196that, the final step in the investigation, namely, the
formation of the opinion as to whether or not there is a case to place the
accused on trial is to be of the officer in charge of the police station and
this function cannot be delegated. This Court unequivocally observed that
there is no provision for delegation of the above function regarding
formation of the opinion but only a provision entitling the superior officers
to supervise or participate under Section 551 (corresponding to Section 36
of the present Code). This Court further held that, a police report which
results from an investigation as provided for in Section 190 of the Code
(corresponding to Section 173 of the present Code)is the material on which
cognizance is taken. But from that it cannot be said that a valid and legal
police report is the foundation of the jurisdiction of the court to take
cognizance.The classical law in this point has been set out in Abhinandan
Jha v. Dinesh Mishra AIR 1968 SC 117, the question arose whether a
Magistrate to whom a report under Section 173 (1) Cr. P.C. had been
submitted to the effect that no case had been made out against the
accused, can the Magistrate direct the police to file a charge-sheet on his
disagreeing with that report?
In answering the question Hon‘ble Apex Court held that a report

submitted by the Police may have to be dealt with judicially and it is open
to the Magistrate to take cognizance of an offence on the basis of material
on record and proceed according to law. But the Hon‘ble Court refused to
concede the power of the Magistrate to direct the police to file chargesheet
as it was observed ―we do not find any such power under section 173(3) as
is sought to be inferred in some of decisions cited above.
 The court can direct further investigation -Abhinandan Jha is silent as
to whether the court of Magistrate can direct further investigation in such
a situation, but such a power has been held in subsequent judgment of
Sakiri Basu case. The similar view was taken by the Hon‘ble Apex Court in
Union of India Vs. Prakash P. Hinduja, AIR 2003 SC 2612. If he agreed
with the report that there was no case made out for issuing process to the
accused he might accept the report and close the proceedings. If he came
to the conclusion that further investigation was necessary he might make
an order to that effect under Section 156(3). It was further held that if
ultimately the Magistrate was of the opinion that the facts set out in the
police report constituted an offence he could take cognizance thereof,
notwithstanding contrary opinion of the police expressed in the report.
The Magistrate has a power to some extent to monitor the
investigation under section 156(3) which was first emphatically laid down
in the landmark judgment on this issue Sakiri Vasu v. State of Uttar
Pradesh (2008) 2 SCC 409 in the following words:
―11. In this connection we would like to state that if a person has a
grievance that the police station is not registering his FIR under Section
154 CrPC, then he can approach the Superintendent of Police under
Section 154(3) CrPC by an application in writing. Even if that does not
yield any satisfactory result in the sense that either the FIR is still not
registered, or that even after registering it no proper investigation is held,
it is open to the aggrieved person to file an application under
Section 156(3)CrPC before the learned Magistrate concerned. If such an
application under Section 156(3) is filed before the Magistrate, the
Magistrate can direct the FIR to be registered and also can direct a proper
investigation to be made, in a case where, according to the aggrieved
person, no proper investigation was made. The Magistrate can also under
the same provision monitor the investigation to ensure a proper
investigation. The above view has been followed in Sudhir Bhaskarrao

Tambevs.Hemant Yashwant Dhage(2016) 6 SCC 277.
It has been held in Vinubhai Haribhai Malaviya and Others vs.State
of Gujarat and Another (2019 SCC OnLine SC 1346) that such a narrow
and restrictive view of the powers of the Magistrate is not warranted,
particularly when such powers are traceable to Section 156(3) read with
Section 156(1), Section 2(h), and Section 173(8) of the CrPC, as has been
noticed hereinabove, and would be available at all stages of the progress of
a criminal case before the trial actually commences. It would also be in the
interest of justice that this power be exercised suo motu by the Magistrate
himself, depending on the facts of each case. Whether further investigation
should or should not be ordered is within the discretion of the learned
Magistrate who will exercise such discretion on the facts of each case and
in accordance with law. If, for example, fresh facts come to light which
would lead to inculpating or exculpating certain persons, arriving at the
truth and doing substantial justice in a criminal case are more important
than avoiding further delay being caused in concluding the criminal
proceeding.
Section 156(3)CrPC is wide enough to include all such powers in a
Magistrate which are necessary for ensuring a proper investigation, and it
includes the power to order registration of an FIR and of ordering a proper
investigation, if the Magistrate is satisfied that a proper investigation has
not been done, or is not being done by the police. Section 156(3) CrPC,
though briefly worded, in our opinion, is very wide and it will include all
such incidental powers as are necessary for ensuring a proper
investigation. M. Subramaniam and Another VersusS. Janaki and Another
2020 SCC OnLine SC 341.
 As discussed in chapter Cognizance, the court can take Cognizance
differing with the findings of the investigation.

7. TYPES OF CRIMINAL TRIAL
Criminal trial
F.I.R Complaint
Cognizance Sec. 190(1)

(a) Upon receiving a complaint of facts constituting the offence
(b) Upon a police report of such facts
(C) - Upon information from a non-police officer
- Upon the own knowledge of the Magistrate
Sessions Trial Warrant Trial

Chapter XVIII Chapter XIX
On Police Report Otherwise than on police report

Chapter XIX A Chapter XIX B
Summons Trial Summary Trial

Chapter XX Chapter XXI
Depending on the gravity of the offences and the punishment

prescribed therefor, criminal trial under the Cr.P.C. has been classified
into two viz., Magisterial Trial and Sessions Trial. Schedule I to the Cr.P.C.
gives a ―classification of the offences‖. A judge does not preside over a
criminal trial merely to see that no innocent man is punished. A Judge

also presides to see that a guilty man does not escape. The object of
criminal trial is thus to render public justice by punishing the criminal.
(Surya Baksh Singh v.The State of U.P. (2014) 14 SCC 222). It is also
important to remember that the trial should be concluded expeditiously
before the memory of the witnesses fades out.If unmerited acquittals
become the general rule, they tend to lead to a cynical disregard of the law.
A miscarriage of justice may arise from the acquittal of the guilty no less
than from the conviction of the innocent. (Gangadhar Behera v. State of
Orissa –(2002) 8 SCC 381)
Accused is presumed to be innocent till the charges against him are

proved beyond reasonable doubt:-
a. Willie (William) Slaney v. State of M.P – AIR 1956 SC

116(Innocence of accused is presumed unless there is a statutory
provision against him).
b. Kali Ram v. State of H.P – (1973) 2 SCC 808(Burden of proving the

guilt of the accused who is presumed to be innocent, is on the
prosecution).
c. Babu Singh v. State of Punjab – 1964 (1) Cri.L.J 566 (SC) –(The
principle of presumption of innocence is of cardinal importance. Guilt of
the accused must be proved beyond reasonable doubt).
d. Sunil Kumar Sambhudayal Gupta v. State of Maharashtra –

(2010) 13 SCC 657 Presumption of innocence is a human right.
Another golden thread which runs through the web of administration

of justice in criminal cases is that if two views are possible on the evidence
adduced in the case one pointing to the guilt of the accused and the other
to his innocence, the view which is favourable to the accused is to be
accepted. (Kaliram v. The State of H.P. AIR 1973 SC 2773, Sheo Nandan

Paswan v. State of Bihar AIR 1983 SC 194; Nisar Ali v. State of U.P. AIR
1957 SC 366)
The law should not be stretched morbidly to embrace every hunch,

hesitancy and degree of doubt. Our jurisprudential enthusiasm for
presumed innocence must be moderated by the pragmatic need to make
criminal justice potent and realistic - ( Shivaji Sahebrao Bobade v. State of
Maharashtra (1973) 2 SCC 793 : AIR 1973 SC 2622 ) Doubts must be
actual and substantial as to the guilt of the accused person arising from
the evidence or from the lack of it, as opposed to mere vague
apprehensions. A reasonable doubt is not an imaginary trivial or a merely
possible doubt; but a fair doubt based upon reasons and commonsense.
Uninformed legitimisation of trivialities would make a mockery of
administration of criminal justice.(State of U.P v. Krishna Gopal (1988) 4
SCC 302 : AIR 1988 SC 2154 ).
Various stages leading to the trial of a case before a criminal Court

can be shown as below:-
A. Conditions requisite for initiation of proceedings -

Chapter XIV Sections 190 to 199 starting with
cognizance of offences
There is a misconceived notion that it is only when the Magistrate
issues process under Section 204 Cr.P.C that he can be said to have taken
cognizance of the offence. The issue of process is at a subsequent stage
and after taking cognizance of the offence (CREF Finance Ltd V. Shree
Shanti Homes (P) Ltd- (2005) 7 SCC 467; State of Karnataka V. Pastor P.
Rajan (2006) 6 SCC 728).
B. Commencement of Proceedings - Chapter XVI Sections
204 to 210 relating to issuance of process
C. The trial proper.

The trial in a criminal case commences with framing of charge and
depending on the nature of the case –
i) Substance of accusation/Particulars of the offence, to be

read over and explained to the accused and his plea to be
taken, if it is a summons trial or a summary trial. Since no
charge is framed, there cannot be any discharge. OR
ii) If it is a Warrant trial or Sessions trial, charge is to be
framed against the accused and his plea is to be taken or
the accused is to be discharged.
The leading case on the framing of charge and the irregularities

attending the same is Willie (William) Slaney v. State of M.P. AIR 1956 SC
116 = 1956 Cri.L.J. 291.
Provisions for framing of Charge Depending on the nature of the

case following are the provisions for framing of charge-
Warrant Trial - Sec. 240 (based on FIR case)
-Sec. 246 (complaint case)
Sessions Trial - Sec. 228
Charge - Chapter – XVII, Section 211 to 224 relates to framing of charges.

Section 221 provides that where it is doubtful what offence has been
committed alternative charges may be framed. If a single act or a series of
act is of such a nature that it is doubtful which of several offences the
facts which can be proved will constitute, the accused may be charged
with having committed all or any of the offences, and any number of
charged may be tried at once; or he may be charged in the alternative with
having committed some one of the said offences.
Alteration of charge – Section 216 of the Cr.P.C. gives sufficient powers

to a court to alter or add to any charge at any time before judgment is

pronounced. The provision further prescribes that such alteration or
addition shall be read and explained to the accused and it is further
provided :
o If the alteration or addition to a charge is such that proceeding

immediately with the trial is not likely in the opinion of the
Court to prejudice the accused in his defence or the prosecutor
in the conduct of the case the Court may, in its discretion, after
such alteration or addition has been made, proceed with the
trial as if the altered or added charge had been the original
charge.
o If the alteration or addition in such that proceeding immediately
with the trial is likely, in the opinion of the Court to prejudice
the accused or the prosecutors as aforesaid, the Court may
either direct a new trial or adjourn the trial for such period as
may be necessary.
o When sanction is required and when not required- If the
offence stated in the altered or added charge is one for the
prosecution of which previous sanction is necessary, the case
shall not be proceeded with until such sanction is obtained,
unless sanction had been already obtained for a prosecution on
the same facts as those on which the altered or added charge is
founded.
o Requirement of recall of witness when essential – It is thus
apparent that recall of witness is essential only in such cases
where in the opinion of the court such alteration or addition of
charge would prejudice either the accused or the prosecution.
o When mandatory – In case either of the parties make an
application that the witness be recalled either for his further
examination or cross examination as the case may be the recall
of such witness shall be mandatory.
o When can be dispensed with- When the court is of the opinion
that the material on the basis of which the charges are being
altered was well within the notice of the accused there is no
need of recalling any witness already examined and in such
cases the recall of witnesses may be dispensed with.
The various types of trials are depicted in the chart above and can be
arranged in the table below
1. Sessions Trial Chapter XVIII

2. Warrant Trial –Case instituted on a Chapter XIX-A
Police Report
3. Warrant Trial –Case instituted otherwise Chapter XIX-B
than on a Police Report
4. Summons Trial Chapter XX
5. Summary Trials Chapter XXI
Summary Trial(Section 260 -265) –A magistrate can try a case

summarily only if specially empowered in this behalf.
a) Magistrate can follow summary procedure for Trial in respect of

the 9 categories of offences enumerated under Section 260 (1) Cr.P.C.
b) A Special Summons in Form 30 of the Second Schedule to Cr.P.C.

giving the option to the accused to plead guilty in absentia and to transmit
his plea and fine through post or through messenger only in the case of
―petty offences‖as defined under Section 206 (2) Cr.P.C. (i.e. punishable
with only fine and that too, not exceeding Rs. 1000.00)
c) The procedure for trial of ―petty offences‖ under Section 206 (1)
Cr.P.C. can be resorted to by a Magistrate (if specifically empowered by

notification issued under Section 206 (3) Cr.P.C. by the State Government)
in respect of the following offences:-
I. Offences which are compoundable under Section 320 Cr.P.C, or
II. Offences punishable with imprisonment not exceeding 3 months

with or without fine where the Magistrate is of opinion that imposition of
fine only would meet the ends of justice.
Summons Trial.
Summons trial procedure is provided by the Cr.P.C. for trial of offences

punishable with imprisonment for 2 years or below. In summary and
summons trial, the trial begins with the stating of the substance of
accusation (particulars of the offence). In summons trial once the trial
starts the case can only end in conviction or acquittal. There is no via
media in between enabling the Magistrate to terminate the proceedings. If
the Magistrate goes back to an earlier stage it will amount to review for
which there is no power. (Adalat Prasad v. Rooplal Jindal - AIR 2004 SC
4674).
Can there be any amendment of substance of accusation?
Can a summons case be tried like a warrant case?
As per the provisions of section 259 of Cr.P.C. the trial of a summons

case relating to an offence punishable with imprisonment for a term
exceeding six months, the trial may be converted into a warrant case by
the Magistrate.
Warrant Trial & Sessions Trial-
In warrant and sessions trial, the trial starts with the framing of charge
(Ratilal Bhaji v. State of Maharashtra - AIR 1979 SC 984)

Trial of warrant case (Instituted on a Police Report(Chapter XIX, Secs
238-243 and 248)
 Satisfaction of compliance of 207- (Sec.238)
 Hear both sides, peruse records, discharge with reasons, if groundless-

Sec.239. Only Prosecution records have to be looked into by the court
Supdt. And Remembrancer of Legal Affairs, West Bengal v. Anil Kumar
Bhunja AIR 1980 Sc 52, State Orissa v. Debendrananth Padhi 2005 SC
359. Nitya Dharmananda @ K. Lenin and Another v. Gopal Sheelum
Reddy aka Nithya Bhaktananda AIR 2017 SC 5846 —Explaining
Debendra Nanth Padhi the Supreme court held that the power of the court
to summon document under Sec.91 may be exercised to bring on record
all relevant prosecution records even at the stage of framing charge.
 If grounds for presuming commission of offence, frame charge, read over

and explain the charge to accused and ask whether he pleads guilty or not
(Sec.240).
 Plea of not guilty once recorded does not bar the accused to again request
the court to record his plea
 If pleads guilty the accused may be convicted. (if convicted, hear on the
question of sentence- Sec.241). Acceptance of plea of guilty is
discretionary.
 If accused pleads guilty and claims benefit of probation, grant him if not
assign reason u/s 360 Cr.P.C or Probation of Offenders Act.
 If pleads not guilty, or not pleaded, the trial begins. Trial begins when
accused is called upon to plead to the charge
 Prosecution evidence has to be recorded- Sec.242.

Important check list for trial
a) The court to draw the order sheet in his own pen while framing charge
detailing the accused set up for trial those who are absconding and whose
trial has been split up.
b) Ensure that accused received copy of police papers in terms of section

207 Cr.P.C. in case of voluminous documents instead of furnishing it to
the accused with a copy thereof direct that he will only be allowed to
inspect it either personally or through his Advocate either in court or in
Office of the court as per rules for Inspection of Records.
c)Check whether sanction/Chemical Examination Report/MOs, etc. have

been received in court.
d) Ensure that charge framed by the court is available with the records
Trial proper
 Evidence is to be taken in the presence of the accused- Sec.273Cr.PC.
 Adjournment - strictly follow Sec.309 Cr.P.C
 Marking of Documents- There are only three ways to mark a document in

evidence.
a) With consent - Sec.294 Cr.PC
b) Formal proof by witness.
c) When the document forms part of evidence by virtue of a statutory

provision (Sec.293 Cr.PC).
Cases instituted otherwise than on a police report(Secs 244 to 250)
 When complainant is present, hear the prosecution and take evidence in

support of prosecution (pre-charge evidence). Accused has a right to cross

examine the complainant and witness, if any. Sec.244.(Ajoy Kumar Ghose
v. State of Jharkhand 2009 (14) SCC 115)
 Preliminary evidence against accused is sufficient to frame chargeState of

Bihar v. Baidnath Prasad alias Baidyanath Shah AIR2002 SC 64.
 Examination of limited number of witnesses is enough-Ajoy Kumar Ghose

 It is desirable to examine only detecting officer in a complaint under forest

and wild life prosecution.
 Hearing on framing charge- Check whether the allegations if unrebutted

would warrant a conviction.
 If no case is made out against the accused, court may record reason and
discharge the accused- Sec.245 (1).
 At any previous stage if the Magistrate considers the charge to be

groundless, with reason, Magistrate can discharge (Sec.245 (2)). It does
not mean a stage where no witness is examined. It only means without
examining all the witnesses for prosecution court may decide to whether
charge has to be framed or not.
 If not discharged, frame charge, read over, explain and ask the accused
whether he pleads guilty or not. If pleads guilty convict on discretion. If
convicted, hear on the question of sentence (Sec.246 (1), (2) and (3) Cr.PC).
 If not pleaded guilty or not accepted plea of guilt, proceed with cross-
examination of the prosecution witness who are already examined, if
required so, re-examination, then examination of remaining witnesses for
the prosecution. Sec.246 (4), (5) and (6). No application of section 311
Cr.P.C at this stage.

 The remaining procedure is same as cases instituted on a police report.
 In a proceedings instituted upon a complaint if the complainant is absent

on a day fixed for hearing and the offence may be lawfully compounded or
the offence is not a cognizable offence, Magistrate may discharge the
accused, if charge is not framed (Sec.249).
 Compensation may be awarded if the accusation was without reasonable

cause -Sec.250.
Summons case(Secs 251-258)
 Furnish copies of records.
 Particulars of offence to be stated to accused.
 If there is no material to read over the particulars of offence, then court

may invoke Sec.258 in a case instituted on a police report.
 No formal charge need be framed.
 If pleads guilty, convict, on discretion.
 Conviction can be in absence as per provisions of Sec.253 – The Section is

applicable only to a summons issued under Section 206 specifying the fine
amount. – Sec.353 enables to pronounce sentence in the absence of
accused, if sentence is fine only.
 If not pleaded guilty, or not accepted the plea of guilty, proceed with
prosecution evidence
 Then examination under Sec 313 Cr.PC
 Defence evidence (Sec.254-accused need not be called upon to enter the

evidence.)
 Argument under Sec 314
 Acquittal under Sec 255(1) or Conviction, sentence Sec.255(2). Hearing on

question of sentence is not mandatory. There is no prohibition in hearing
the accused on sentence even in a summons case.Considerthe Probation
of Offenders Act and invoke the same in deserving cases.
 Absence of complainant or death of complainant- accused may be

acquitted (Sec.256). The power under Sec. 256 can be exercised by the
court when the complainant remained absent on a day when case is
posted for evidence or when presence of the complainant is absolutely
essential and he is absent. But court may dispense with the appearance of
the complainant, if proper representation is there - Sec.256.Permission
can be granted to withdraw the complaint at any stage before final order.
Withdrawal may be against one or more of the several accused. Sec.257.
 Summons Case instituted on a police report - may stop proceedings at any

stage –Sec.258.Reasons be recorded for passing an order under Sec. 258.
If evidence of the principal witness is recorded, judgment of acquittal. Any
other case, release the accused.
Intermediate Stages in A Trial
Pleading Guilty-Cases where the accused pleads guilty are instances

of judicial confession. Hence, the Magistrate is bound to follow the
safeguards provided under Sec. 164 (2) Cr.P.C. If the Magistrate is
satisfied that the accused has voluntarily pleaded guilty, he can in his
discretion straightaway convict the accused. The appropriate provisions
are given below :-

Provision in Cr.P.C. Type of trial
Sec. 252 in summons cases
Sec. 241 in warrant cases instituted on a police report
Sec. 246 (3) in warrant cases instituted otherwise than on
Police Report.
Sec. 229 in Sessions Cases.
The power to convict in all these cases is in the discretion of the
Court.
In a nutshell in a case instituted on the basis of an FIR relating to

warrant triable offences the procedure under chapter XIX of the Cr.P.C.
shall be followed and when the accused is not discharged under section
239 Cr.P.C. the charges shall be framed and if the accused pleads guilty
he may be convicted on such plea being recorded. But if the accused
claims to be tried evidences for the prosecution shall be recorded under
section 242 Cr.P.C.
Where the offences are triable as summons cases under Chapter XX
of the Cr.P.C. as soon as the accused is brought before the court
substance of accusation shall be stated to him and where the court does
not convict him either on the plea of guilty under section 252 or section
253 the court will proceed to record evidence under section 254 of Cr.P.C.
Where the case is instituted otherwise than on a police report that is
a complaint case, the court will proceed to record the before charge
evidence for the complainant under section 244 of Cr.P.C. and
subsequently if the accused is not discharged under section 245 Cr.P.C.
the court will proceed under section 246 Cr.P.C. for recording after charge
evidence on behalf of the complainant that will include cross examination
of the witnesses examined at the before charge stage of trial and
examination of the remaining witnesses if any.
Recording of Evidence
As per section 5 of Evidence Act evidence is to be given only of ―facts

in issue‖as defined under section 3 and ―relevant facts‖ falling under
section 5 to 55 of the Evidence Act. Going by the definition of expression
―evidence‖ in section 3 of the Evidence Act,
"Evidence."-- "Evidence" means and includes--
(1) all statements which the Court permits or requires to be made before it
by witnesses, in relation to matters of fact under inquiry;
such statements are called oral evidence;
(2)[all documents including electronic records produced for the inspection
of the Court;] such documents are called documentary evidence.
Thus evidence includes oral as well as documentary evidences. The
provisions pertaining toproof of ―oral evidence‖ are contained in Sections
59 and 60 of theEvidence Act. Section 59 of the Evidence Act enjoins that
all facts,except the contents of documents or electronic records, may
beproved by oral evidence. Section 60 insists that a fact which could
beperceived by the senses can be proved only by the evidence of
thewitness who perceived the said fact and if it is the opinion or
thegrounds on which such opinion is held, it must be proved by
theevidence of the person who holds that opinion on those groundsexcept
where it is the opinion of an expert expressed in any treatisecommonly
offered for sale.Hearsay evidence is ordinarily not admissible and
exceptions to the same are res gestae evidence and dying declarations. The
provisions pertaining to proof of documentary evidence are contained in
section 61 to 100 of the Evidence Act.
The court will record the evidence of any witness present before it in
the manner described in section 137 Evidence Act. The order of
examination shall be as per section 138 Evidence Act.
 Examination of limited number of witnesses is enough (Ajoy Kumar Ghose

―Contradictions‖ ―Omissions Amounting to Contradictions‖ And

―Leading Questions‖
Sections 161, 162 Cr.PC and 145 of Indian Evidence Act and Section
143 of the Indian Evidence Act
What exactly is a ―contradiction‖, ―inconsistencies‖ or ―an omission

amounting to a contradiction‖ and the extent of admissibility and
sustainability of such contradictions and omissions etc. are certain areas
which are of significant importance in appreciating the evidence. A definite
procedure has been laid down under Cr.P.C. for drawing attention of
witness towards his previous statements made under section 161 at the
time of recording of evidence which need to be followed during trial.
Contradictions:
If the statement before the Police under section161 Cr.PC and the
statement in the evidence before court are so inconsistent that both of
them cannot co-exist, then it can be said that one contradicts the other
(Tahsildhar Singh v/s State of U.P. – AIR 1959 SC 1012).
The basic principle is that in the event of inconsistency/

contradiction appearing between the statement being given by a witness
before the court and his earlier statement recorded under section 161
Cr.P.C, the witness should be given an opportunity to explain such
inconsistency and therefore, the defence is required to draw attention of
the witness to the previous statement. Further, such previous statement
need to be proved by the I.O only then there will be two statements duly
proved before the court for appreciation.
When a witness turns Hostile towards the prosecution and not the
defence legally two permissions are required:
Section 154 – Permission to put questions which might be put in

cross examination.

Section 162 (1) Proviso CrPC – By the accused without any
permission of court and if used by the prosecution then permission of
court needed.
Contradiction U/s 145 of the Evidence Act should be between what a

witness asserted in the witness-box and what he stated before the Police
Officer, and not between what he said he had stated before the Police
Officer and what he actually stated before him. In such a case the
question could not be put at all. Only questions to contradict can be put
(Tahsildhar Singh v/s State of U.P. – AIR 1959 SC 1012).The ratio of this
judgment has been incorporated in explanation to section 162 Cr.P.C.
Contradiction means the setting of one statement against another

and not the setting up of a statement against nothing at all Shashidhar
Purandhar Hegde v/s State of Karnataka (2004) 12 SCC 492 = AIR 2004
SC 5075. Hence it is not permissible for a cross–examining counsel to ask
the witness something which is not there in his 161 statement to the
Police and if the witness replies in the affirmative, then to come out with
an argument that the statement made in Court is an omission amounting
to a contradiction.
The statement made by a witness in the course of investigation may,

if duly proved, be used to contradict that witness and if it is intended to
contradict the witness under the second part of Section 145 of the Indian
Evidence Act, he should be confronted with the concerned portions of the
writing.
The statement of a witness under Section 161 Cr.PC is recorded by a

police officer by ―examining him orally.‖ Such a statement need not be an
encyclopedia of everything that the witness knows about the case. Any
and every omission in such statement will not become a contradiction for
the purpose of discrediting the witness. The question is whether the

omission is on a vital aspect which the witness was normally bound or
expected to disclose along with other answers even without a question and
whether the new version given in the box on a vital aspect militates
against what he already said and operates as an embellishment. That is a
question of fact to be decided in each case.
Procedure
1). The exact portions sought to be contradicted must be put to the

witness and recorded in the deposition and it will have to be marked
subject to proof by the investigating officer. Then it must be put to the
investigating officer and proved.
2). Entire portions of the statement with which the witnesses are sought
to be confronted, should be put to the witnesses.
3). Relevant extracts of the alleged Section 161 statements should be

put to the witness. The witness should be given an opportunity to affirm
or deny the exact portions of the alleged previous statements to the police.
If the witness admits the part intended to contradict him, it stands proved
and there is no need for further proof of the contradiction. If the witness
denies having made that part of the statement, his attention must be
drawn to that statement and the same must be mentioned in the
deposition. By this process the contradiction is merely brought on record.
Thereafter the contradiction is to be proved through the investigating
officer (V.K. Mishra V. State of Uttarakhand- (2015) 9 SCC 588=AIR 2015
SC 3043).
The explanation of the witness should be noted. In the event of denial by

the witness, he should be given an opportunity to explain the
contradictions, if any. To condemn the evidence of a witness on the basis
of contradictory previous statements alleged to have been made by him,

without specifically drawing his attention to those statements, is wholly
improper.
The attention of the witness should be drawn to those parts of his previous
statement which are required to be used for the purpose of contradicting
him (Rajender Singh v/s State of Bihar (2000)4 SCC 298 = AIR 2000 SC
1779; Major Som Nath v/s Union of India (1971) 2 SCC 397 = AIR 1971
SC 1910.
If the witness disowns having made any statement to the police which
is inconsistent with his version in court, merely asking questions in cross-
examination with reference to such statement is not enough. His
testimony in Court on that score would not be vitiated until the cross-
examiner proceeds to comply with the procedure prescribed in the second
limb of Sec.145. (Binay Kumar Singh v/s State of Bihar (1997) 1 SCC 283
= AIR 1997 SC 322).
4). A prior statement by way of an admission by a party is substantive

evidence if it fulfills the requirements of Section 21 of Evidence Act and
there is no need to put to the party the statement containing the
admission because it is evidence proprio vigore. But in the case of a prior
statement by a witnesshe cannot be disbelieved unless the prior
statement has been put to him as required by Section 145 of the Evidence
Act. (Bishwanath Prasad v/s Dwaraka Prasad (1974) 1 SCC 78 = AIR 1974
SC 117, Bharat Singh v/s Bhagirathi AIR 1966 SC 405).
5). Effect of marking the entire case diary statements of witnesses

without incorporating the same in the depositions and without putting to
the witnesses portions sought to be contradicted, explained. The witness
must get an opportunity of admitting or denying the contradictory part of
his case diary statement or to give his own explanation which will have to
be considered by the court. If denied, then the statement will have to be

duly proved also. Then only it becomes admissible though the
admissibility is only for the limited purpose of using it for contradicting,
discrediting or for considering the veracity of that witness and not
otherwise to be used as substantive evidence. A contradicted and denied
statement, even if dulyproved, cannot be used as substantive evidence
against the accused. It cannot be said that admitting in evidence of the
case diary statement is an illegality which vitiates the trial. It is only a
curable irregularity which will vitiate the trial only if there is prejudice.
Portions of the statements with which the witnesses were not specifically
contradicted nor properly proved through the investigating officer, cannot
be used even for discrediting the witnesses because the witnesses were not
specifically confronted with those statements and an opportunity to either
admit or deny or give an explanation for such statements, was denied to
them.
In Ram Chandra v/s State of Maharashtra – 1968 SCD 790it was held
that confronting the witness with the entire statement, though
procedurally defective, is not improper if no prejudice is caused.
6). What is required under Section 145 of the Evidence Act is that the
witness must be treated fairly and be afforded a reasonable opportunity of
explaining the contradictions after his attention has been drawn to them
in a fair and reasonable manner. The matter is one of substance and not
of mere fun. In the instant case, the entire portions of the statement which
the witnesses were sought to be confronted with were not seen put to the
witnesses. The inverted comas contained only the beginning and end of
the statements with dotted lines in between. So also, portions of the
statements with which the witnesses were sought to be confronted, were
not put to the investigating officer who was only asked whether Pws 2 to 4
had stated as contained in Exts.P2, P3 and P4. This can hardly be treated
as proof of the statements.

7). What is really necessary is substantial compliance of the requirements
of Section 145 of the Indian Evidence Act and the purpose of the second
part of Section 145 is to treat the witness fairly by giving him an
opportunity to explain the contradictions after his attention has been
drawn to them in a fair and reasonable manner. The ideal procedure
would be to record and extract in the deposition the relevant previous
statement, whether it be a long or short passage. What is necessary is that
the deposition shows that the marking of the previous statement is proved
by him and that statement is seen recorded in the case diary. When the
relevant portion is marked and the investigating officer refers to that
portion or exhibit, ordinarily that is sufficient to show that he has proved
the previous statement which is part of the case diary statement in
writing.
Omission Amounting to Contradiction
For an omission to be treated as a contradiction, it should be a

significant or material omission (See Explanation to Section 162 and
Francis Joy V. State of Kerala 1988 0 Supreme(Ker) 511
1. Where the witness deposed before Court that the deceased had made
a dying declaration to him, but in his statement recorded under Section
161 Cr.P.C. , he did not state about any such dying declaration. ( State of
Punjab Vs. Praveen Kumar(2005) 9 SCC 769 = AIR 2005 SC 1277; Khalil
Khan Vs. State of M.P. (2003) 11 SCC 19 = AIR 2003 SC 4670).
2. Witness stating that he had gone to the spot on hearing the sound of
gunshot and tried to snatch away the gun from the accused. But in his
police statement he not stating anything regarding the snatching of the
gun. This is omission amounting to contradiction causing serious doubt
about the truthfulness of the witness. ( State of Rajasthan Vs. Rajendra
Singh(2009) 11 SCC 106).

3. Version of the prosecution witnesses (also shown to be inimical to the
accused) that the accused used lathis, does not find a place in their police
statements. Prosecution case not upheld State of U.P.Vs. Banne (2009) 4
SCC 271.
4. Father of deceased alleging in Court for the first time about torture of
his daughter by the accused mother-in-law. There was no mention of such
torture in the statement of the father recorded by the police one year after
the occurrence. Father was disbelieved. (Meera Vs. State of Rajasthan
(2004) 11 SCC 231 = AIR 2004 SC 1879).
5. Witnesses in their statements under Section 161 Cr.P.C. attributing

a clear intention to the accused to commit murder of his wife, stating
before the Sessions Court that the accused was insane (behaving like a
mad man). It is an omission amounting to contradiction.(Dahyabhai
Chhaganbhai Thakkar Vs. State of Gujarat = AIR 1964 SC 1563)
Instance of omission not amounting to contradiction
Prosecutrix subjected to rape stating in Court that the place of occurrence

was 2 feet away from the road. But in the FIR lodged by an Advocate after
hearing the narration of the Prosecutrix (whom he had found to be scared,
nervous and hesitant) mentioned the road as the place of occurrence. Held
that under the circumstances of the case there was no major discrepancy
amounting to contradiction especially when her statement under Section
161 Cr.P.C. would show that the occurrence took place at a spot 20 feet
away from the road.(State of H.P. Vs. Lekh Raj(2000) 1 S.C.C. 247 = AIR
1999 SC 3916)
Leading Questions
Leading questions which may be asked in cross-examination – sec

143 of Evidence Act

Leading questions must not be, if objected to by the adverse party, be
asked in an examination–in-chief or in a re-examination, exceptwith the
permission of the Court. As per the former part of Sec. 142.
Court shall permit leading questions as to maters which are:.
introductory , or
undisputed, or
which have, in its opinion, been already sufficiently proved.
As per the the latter part of Section 142.
Thus,leading questions can be put even without the permission of the

Court during examination-in-Chief, if the opposite side does not object to
it.Need to obtain permission of the Court to put leading questions would
arise only where the opposite party objects to it.Even if the opposite party
objects, Court has a wide discretion in allowing leading questions to be
put.
With regard to matters covered by the latter part of Section 142, the Court
has no discretion but should allow leading questions to be put. (See State
of Kerala Vs. Rajan – 1991(2) KLT SN 63 - Case No- 71 – K.T.
Thomas – J)
It is thus clear that where the witness of a party fails to support the case
of the party producing him or her the witness may be declared hostile by
the party producing the witness. Where the witness is declared hostile by
the prosecution the witness may be cross examined under the provision of
section 145 of the Evidence Act. Here section 162 of Cr.P.C. comes into
play. The earlier statement of the witness recorded under section 161 of
Cr.P.C. during the course of investigation may be used by the prosecution
with the permission of the court to contradict the witness.
When the contradiction in the above manner is taken by the
prosecution by drawing attention of the witness to his earlier statement

recorded under section 161 of Cr.P.C. and his denials to such previous
statements, if any is recorded it shall be incumbent upon the prosecution
to get such previous statement proved by the I.O. or the person who
recorded it under the provisions of section 161 Cr.P.C. as the witness
himself is not competent to prove such previous statement for two
reasons. The first that such statement under section 161 need not be
signed and thus the second that the person recording such statement
alone is competent to prove it.
Introductory question and leading question –Any question suggesting
the answer which the person putting it wishes or expects to receive is
called a leading question. As per section 142 of Evidence Act leading
questions must not, if objected to by the adverse party, be asked in an
examination in chief, or in a reexamination, except with the permission of
the court. It is further provided in the same provision that the court shall
permit leading questions as to matters which are introductory or
undisputed, or which have in its opinion, been already sufficiently proved.
Leading questions are permissible to be asked in cross examination.
Child Witness- The question of competency is dealt with in Section. 118

Every witness is competent unless the court considers he is prevented
from understanding the question put to him, or from giving rational
answers by reason of tender years, extreme old age, disease whether of
body or mind, or any other cause of the same kind. There is always
competency in fact unless the court considers otherwise.
It is desirable that Judges and Magistrates should always record their

opinion that the child understands the duty of speaking the truth and
state why they think that, otherwise the credibility of the witness may be
seriously affected, so much so, that in some cases it may be necessary to
reject the evidence altogether. But whether the Magistrate or Judge really
was of that opinion can be gathered from the circumstances when there is
no formal certificate. In the present case, it is plain that the learned Judge
had the proviso in mind because he certified that the witness did not
under-stand the nature of an oath and so did not administer oath but
despite that went on to take her evidence.1952AIR(SC) 54 Rameshwar S/o
Kalyan Singh Versus The State of Rajasthan
It was further held in Ratansinh Dalsukhbhai Nayak v. State of Gujarat,

(2004) 1 SCC 64 at page 67
The Indian Evidence Act, 1872 does not prescribe any particular age as
a determinative factor to treat a witness to be a competent one. On the
contrary, Section 118 of the Evidence Act envisages that all persons shall
be competent to testify, unless the court considers that they are prevented
from understanding the questions put to them or from giving rational
answers to these questions, because of tender years, extreme old age,
disease — whether of mind, or any other cause of the same kind. A child of
tender age can be allowed to testify if he has intellectual capacity to
understand questions and give rational answers thereto. This position was
concisely stated by Brewer, J. in Wheeler v. United States [159 US 523 : 40
L Ed 244 (1895)] . The evidence of a child witness is not required to be
rejected per se, but the court as a rule of prudence considers such
evidence with close scrutiny and only on being convinced about the quality
thereof and reliability can record conviction, based thereon.
( Suryanarayana v. State of Karnataka [(2001) 9 SCC 129 : 2002 SCC (Cri)
413 : (2001) 1 Supreme 1] .)
This extract is taken from Ratansinh Dalsukhbhai Nayak v. State of
Gujarat, (2004) 1 SCC 64 : 2004 SCC (Cri) 7 at page 67
―7. In Dattu Ramrao Sakhare v. State of Maharashtra [(1997) 5 SCC 341 :
1997 SCC (Cri) 685] it was held as follows: (SCC p. 343, para 5)
―A child witness if found competent to depose to the facts and
reliable one such evidence could be the basis of conviction. In other

words even in the absence of oath the evidence of a child witness can be
considered under Section 118 of the Evidence Act provided that such
witness is able to understand the questions and able to give rational
answers thereof. The evidence of a child witness and credibility thereof
would depend upon the circumstances of each case. The only
precaution which the court should bear in mind while assessing the
evidence of a child witness is that the witness must be a reliable one
and his/her demeanour must be like any other competent witness and
there is no likelihood of being tutored.‖
The decision on the question whether the child witness has sufficient
intelligence primarily rests with the trial Judge who notices his manners,
his apparent possession or lack of intelligence, and the said Judge may
resort to any examination which will tend to disclose his capacity and
intelligence as well as his understanding of the obligation of an oath. The
decision of the trial court may, however, be disturbed by the higher court
if from what is preserved in the records, it is clear that his conclusion was
erroneous. This precaution is necessary because child witnesses are
amenable to tutoring and often live in a world of make-believe. Though it is
an established principle that child witnesses are dangerous witnesses as
they are pliable and liable to be influenced easily, shaped and moulded,
but it is also an accepted norm that if after careful scrutiny of their
evidence the court comes to the conclusion that there is an impress of
truth in it, there is no obstacle in the way of accepting the evidence of a
child witness.
Unless corroboration is insisted upon by statute, courts should not
insist on corroboration except in cases where the nature of the testimony
of the single witness itself requires as a rule of prudence, that
corroboration should be insisted upon, for example in the case of
a child witness, or of a witness whose evidence is that of an accomplice
or of an analogous character.

Deaf and Dumb witness –Section 119 of the Evidence Act provides
that a witness who is unable to speak may give his evidence in any other
manner in which he can make it intelligible as by writing or by signs; but
such writing must be written and the signs made in open court. The law
further provides that the evidence so given shall be deemed to be oral
evidence. Hon‘ble Supreme Court in the case of State of Rajasthan v.
Darshan Singh, (2012) 5 SCC 789held that ―When a deaf and dumb person
is examined in the court, the court has to exercise due caution and take
care to ascertain before he is examined that he possesses the requisite
amount of intelligence and that he understands the nature of an oath. On
being satisfied on this, the witness may be administered oath by
appropriate means and that also with the assistance of an interpreter.
However, in case a person can read and write, it is most desirable to adopt
that method being more satisfactory than any sign language. The law
requires that there must be a record of signs and not the interpretation of
signs. In view of the provisions of Section 119 of the Evidence Act, the only
requirement is that the witness may give his evidence in any manner in
which he can make it intelligible, as by writing or by signs and such
evidence can be deemed to be oral evidence within the meaning of Section
3 of the Evidence Act. Signs and gestures made by nods or head are
admissible and such nods and gestures are not only admissible but
possess evidentiary value. To sum up, a deaf and dumb person is a
competent witness. If in the opinion of the court, oath can be administered
to him/her, it should be so done. Such a witness, if able to read and write,
it is desirable to record his statement giving him questions in writing and
seeking answers in writing. In case the witness is not able to read and
write, his statement can be recorded in sign language with the aid of
interpreter, if found necessary. In case the interpreter is provided, he
should be a person of the same surrounding but should not have any
interest in the case and he should be administered oath.‖

Criminal Court Rules on Marking of Exhibits – Rule 102 to 112 relates
to exhibits in a criminal case. As per Rule 102 the documents admitted in
evidence on behalf of the prosecution shall be marked with numerals like
Exhibit 1, Exhibit 2 etc. and the documents admitted on behalf of defence
with capital letters like Exhibit A, Exhibit B etc. Where there are a number
of documents of the same nature admitted in evidence they shall be
marked in series like Exhibit 1/1, Exhibit 1/2 etc. on behalf of the
prosecution and Exhibit A/A, Exhibit A/B on behalf of the defence.
The electronic evidences shall be market as per note 3 to Rule 103 fo

the Criminal Court Rules and the articles admitted in evidence shall be
market exhibit with capital numerals like Exhibit I, Exhibit II etc.
Whenever a document or an article is admitted in evidence list shall be
prepared in terms of Rule 104 and Rule 110 as the case may be.
Evidence is to be taken in presence of the accused as per section 273

Cr.P.C. but where the personal attendance of the accused has been
dispensed with under section 205, 317 Cr.P.C. or when the accused has
absconded and the evidence is recorded under section 299 Cr.P.C. the bar
of section 273 Cr.P.C. will not operate. The bar created by section 273
Cr.P.C. is not impermeable.
The documents may be marked evidence in the following manners:
(a) Under section 293 Cr.P.C. being report of government scientific
expert.
(b) 291A – report of a Magistrate without calling the Magistrate as a
witness.
(c) With consent of the party under section 294 Cr.P.C.
(d) By tendering through a witness during the course of his
examination.
(e) The electronic evidences may proved in terms of section 65A and
65B of the Evidence Act. But where original electronic record itself

is available in the court it will be a primary evidence under section
62 of the Evidence Act (Vikram singh Vs. State of Punjab, AIR
2017 SC 3227) The law is settled in terms of the ruling in Arjun
Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 3 SCC
216 which referred the matter to a larger Bench and ultimately the
Hon‘Ble Apex Court in a decision given on 14/07/2020has upheld
the verdict given in Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473
(f) It was held in State of Maharashtra Vs. Praful B. Desai (AIR 2003
SC 2053)that evidence may be recorded through video
conferencing. So long as the accused and / or his pleader are
present when evidence is recorded by video conferencing that
would fully meet the requirements of section 273 and recording of
such evidence would be as per ―procedure established by law‖.
The accused may lead defense evidence subsequent thereto and
subsequent to conclusion of evidences on behalf of the parties the final
argument shall be heard and the judgment shall be pronounced and the
trial will conclude either in acquittal or conviction of the accused. The
court will before conclusion of trial make the accused to execute a bail
bond required under section 437A Cr.P.C. to appear before the next
appellate court.
 A prosecution witness cannot be examined again as a defense
witness to elicit anything which have been elicited when he was
examined as a prosecution witness. State of M.P. Vs. Badri Yadav
(AIR 2006 SC 1769)
If any witness is cited by defense and summons is requested, court may
issue summons.
Entering the Defence

 Call upon the accused to enter upon his defence. Written statement can be
filed. Sec. 243(1).

 A prosecution witness cannot be examined as a defence witness for
anything which have been elicited when he was examined as a prosecution
witness. State of M.P. v. Badriyadav (AIR 2006 SC 1769)
 If any witness is cited by defence and summons is requested, court is

bound to accept and issue summons.
Argument and argument notes ( See- Sec 314).

 Acquittal under Sec 248(1) or If found guilty, hear the accused on
sentence, then sentence him according to law under Sec.248(2) again
subject to Section 360 or Probation of Offenders Act as the case may be.
 Consider Probation of Offenders Act in appropriate cases. It is mandatory

to consider the report of probation officer before invoking the Probation of
Offenders Act.MCD v. State of Delhi AIR 2005 SC 2658
Larger Punishment -- Sec.325 Cr.P.C.
 This Section applies to cases where the Magistrate is of opinion that the
accused is guilty and that he ought to receive a punishment different in
kind or more severe than which the Magistrate is competent to inflict.
Therefore, there are two conditions to apply the provisions:
a) The punishment must be different in kind or more severe and
b) The punishment must be more severe than what the Magistrate can
inflict.
 Only in such cases he can send the records to the Chief Judicial
Magistrate empowered to act under this Section.
Enhancement of punishment –Sec.75 IPCmay not be understood as

obligating a criminal court to impose enhanced sentence invariably in all
circumstances whenever an accused who is a previous convict repeats any

offence under Chapter XII or XVII of the IPC. The court has, nevertheless,
a duty to ensure that punishment for the subsequent offence is
commensurate with gravity thereof and the sentence is neither too lenient
nor very excessive being disproportionate to the nature of the crime.
Sec.75 thus comes into play only when the court is compelled by the
gravity of the offence in question to exceed the maximum limit of the
punishment prescribed for the offence on the first occasion and not
otherwise (Sayad Abdul Sayad Imam v. Emperor AIR 1926 Bom 305).
 When a previous convict is again accused of offences punishable under

Chapters XII and XVII of IPC, the Magistrate before whom the final report
is filed is bound to follow the procedure prescribed by Sec. 324 Cr.PC.

8. Recall of Witness SECTION 311 Cr.P.C. - Court may, suo-motu or
on application:
 Summon any person as witness

 Examine any person present, even though not summoned
 Recall or re-examine any person.
 Court shall summon and examine or recall and re-examine any
person if it is essential for the just decision of the case. Examination
can be done at any stage of enquiry, trial or proceedings.
A criminal trial is a judicial examination of the issues in the case and
its purpose is to arrive at a judgment on an issue as a fact or relevant
facts which may lead to the discovery of the fact issue and obtain proof
of such facts at which the prosecution and the accused have arrived by
their pleadings; the controlling question being the guilt or innocence of
the accused. Since the object is to mete out justice and to convict the
guilty and protect the innocent, the trial should be a search for the
truth and not about over technicalities, and must be conducted under
such rules as will protect the innocent, and punish the guilty. The proof
of charge which has to be beyond reasonable doubt must depend upon
judicial evaluation of the totality of the evidence, oral and
circumstantial and not by an isolated scrutiny. Zahira Habibulla H.
Sheikh & Anr.VersusState of Gujarat & Ors. 2004 4 SCC 158
In 2016 8 SCC 762 State of Haryana VersusRam Mehar & OthersThe Court
referred to the earlier decisions and culled out certain principles which are
to be kept in mind while exercising power under Section 311 CrPC. We
think it seemly to reproduce some of them:-
 The exercise of the widest discretionary power under Section 311 CrPC
should ensure that the judgment should not be rendered on inchoate,
inconclusive and speculative presentation of facts, as thereby the ends
of justice would be defeated.

 If evidence of any witness appears to the court to be essential to the just
decision of the case, it is the power of the court to summon and
examine or recall and re-examine any such person.
 The exercise of power under Section 311 CrPC should be resorted to
only with the object of finding out the truth or obtaining proper proof
for such facts, which will lead to a just and correct decision of the case.
 The exercise of the said power cannot be dubbed as filling in a lacuna in
a prosecution case, unless the facts and circumstances of the case
make it apparent that the exercise of power by the court would result in
causing serious prejudice to the accused, resulting in miscarriage of
justice.
 The wide discretionary power should be exercised judiciously and not
arbitrarily.
 The court must satisfy itself that it was in every respect essential to
examine such a witness or to recall him for further examination in order
to arrive at a just decision of the case.
 Exigency of the situation, fair play and good sense should be the
safeguard, while exercising the discretion. The court should bear in
mind that no party in a trial can be foreclosed from correcting errors
and that if proper evidence was not adduced or a relevant material was
not brought on record due to any inadvertence, the court should be
magnanimous in permitting such mistakes to be rectified.
 The court should be conscious of the position that after all the trial is
basically for the prisoners and the court should afford an opportunity to
them in the fairest manner possible. In that parity of reasoning, it
would be safe to err in favour of the accused getting an opportunity
rather than protecting the prosecution against possible prejudice at the
cost of the accused. The court should bear in mind that improper or
capricious exercise of such a discretionary power, may lead to
undesirable results.
 The power under Section 311 CrPC must therefore, be invoked by the
court only in order to meet the ends of justice for strong and valid
reasons and the same must be exercised with care, caution and
circumspection. The court should bear in mind that fair trial entails the
interest of the accused, the victim and the society and, therefore, the
grant of fair and proper opportunities to the persons concerned, must
be ensured being a constitutional goal, as well as a human right.‖
In Hanuman Ram v. State of Rajasthan, (2008) 15 SCC 652 it has been
held that once the witness was examined-in-chief and cross-
examined fully, such witness should not have been recalled and
re-examined to deny the evidence he had already given before the
court, even though that witness had given an inconsistent statement
before any other court or forum subsequently. A witness could be
confronted only with a previous statement made by him.
Section 165 of the Evidence Act provides that the Judge may, in order
to discover or to obtain proper proof of relevant facts, ask any question he
deems fit, in any form, at any time, of any witness, or of the parties, about
any fact, relevant or irrelevant; and may order production of any document
or thing. Section 311 CrPCempowers a court, at any stage of an inquiry,
trial or other proceeding, to summon any person as a witness, or examine
any person in attendance or recall and re-examine any person already
examined. In fact, it casts a duty on the Judge to summon and examine or
recall and re-examine any such person if his evidence appears to be
essential to the just decision of the case. Every trial being an effort to
discover the truth, the Judge should play an active role within the
parameters defined by the procedural law.
In Mohanlal Shamji Soni v. Union of India (1991 Supp (1) SCC 271)
referring to Section 165 of the Evidence Actand Section 311 CrPC, the
Supreme Court stated that the said two sections are complementary to

each other and between them, they confer jurisdiction on the Judge to act
in aid of justice.
The provisions contained in section 311 of the Code has been

further clarified in Iddar v. Aabida, (2007) 11 SCC 211 to mean that
the section is manifestly in two parts. Whereas the word used in the
first part is ‗may‘, the second part uses ‗shall‘. In consequence, the first
part gives purely discretionary authority to a criminal court and enables
it at any stage of an enquiry, trial or proceeding under the Code (a) to
summon anyone as a witness, or (b) to examine any person present in
the court, or (c) to recall and re-examine any person whose evidence has
already been recorded. On the other hand, the second part is
mandatory and compels the court to take any of the aforementioned
steps if the new evidence appears to it essential to the just decision of
the case. This is a supplementary provision enabling, and in certain
circumstances imposing on the court the duty of examining a material
witness who would not be otherwise brought before it. It is couched in
the widest possible terms and calls for no limitation, either with regard
to the stage at which the powers of the court should be exercised, or
with regard to the manner in which it should be exercised. It is not only
the prerogative but also the plain duty of a court to examine such of
those witnesses as it considers absolutely necessary for doing justice
between the State and the subject. There is a duty cast upon the court
to arrive at the truth by all lawful means and one of such means is the
examination of witnesses of its own accord when for certain obvious
reasons either party is not prepared to call witnesses who are known to
be in a position to speak important relevant facts.
The object underlying Section 311 of the Code is that there may not
be failure of justice on account of mistake of either party in bringing the
valuable evidence on record or leaving ambiguity in the statements of

the witnesses examined from either side. The determinative factor is
whether it is essential to the just decision of the case. The section is not
limited only for the benefit of the accused, and it will not be an
improper exercise of the powers of the court to summon a witness
under the section merely because the evidence supports the case of the
prosecution and not that of the accused. The section is a general
section which applies to all proceedings, enquiries and trials under the
Code and empowers the Magistrate to issue summons to any witness at
any stage of such proceedings, trial or enquiry. In Section 311 the
significant expression that occurs is ‗at any stage of any inquiry or trial
or other proceeding under this Code‘. It is, however, to be borne in mind
that whereas the section confers a very wide power on the court on
summoning witnesses, the discretion conferred is to be exercised
judiciously, as the wider the power the greater is the necessity for
application of judicial mind.
As indicated above, the section is wholly discretionary. The second
part of it imposes upon the Magistrate an obligation: it is, that the court
shall summon and examine all persons whose evidence appears to be
essential to the just decision of the case. It is a cardinal rule in the law
of evidence that the best available evidence should be brought before
the court. Sections 60, 64 and 91 of the Evidence Act, 1872 (in short
‗the Evidence Act‘) are based on this rule. The court is not empowered
under the provisions of the Code to compel either the prosecution or the
defence to examine any particular witness or witnesses on their side.
This must be left to the parties. But in weighing the evidence, the court
can take note of the fact that the best available evidence has not been
given, and can draw an adverse inference. The court will often have to
depend on intercepted allegations made by the parties, or on
inconclusive inference from facts elicited in the evidence. In such cases,
the court has to act under the second part of the section. Sometimes

the examination of witnesses as directed by the court may result in
what is thought to be ‗filling of loopholes‘. That is purely a subsidiary
factor and cannot be taken into account. Whether the new evidence is
essential or not must of course depend on the facts of each case, and
has to be determined by the Presiding Judge.
The object of Section 311 is to bring on record evidence not only from
the point of view of the accused and the prosecution but also from the
point of view of the orderly society. If a witness called by the court gives
evidence against the complainant, he should be allowed an opportunity
to cross-examine. The right to cross-examine a witness who is called by
a court arises not under the provisions of Section 311, but under the
Evidence Act which gives a party the right to cross-examine a witness
who is not his own witness. Since a witness summoned by the court
could not be termed a witness of any particular party, the court should
give the right of cross-examination to the complainant.
It has been further held in Rajendra Prasad v. Narcotic Cell, (1999)
6 SCC 110that it is a common experience in criminal courts that
defence counsel would raise objections whenever courts exercise powers
under Section 311 of the Code or under Section 165 of the Evidence
Act, 1872 by saying that the court could not ―fill the lacuna in the
prosecution case‖. A lacuna in the prosecution is not to be equated with
the fallout of an oversight committed by a Public Prosecutor during trial,
either in producing relevant materials or in eliciting relevant answers
from witnesses. The adage ―to err is human‖ is the recognition of the
possibility of making mistakes to which humans are prone. A corollary
of any such laches or mistakes during the conducting of a case cannot
be understood as a lacuna which a court cannot fill up.
Lacuna in the prosecution must be understood as the inherent
weakness or a latent wedge in the matrix of the prosecution case. The
advantage of it should normally go to the accused in the trial of the
case, but an oversight in the management of the prosecution cannot be
treated as irreparable lacuna. No party in a trial can be foreclosed from
correcting errors. If proper evidence was not adduced or a relevant
material was not brought on record due to any inadvertence, the court
should be magnanimous in permitting such mistakes to be rectified.
After all, function of the criminal court is administration of criminal
justice and not to count errors committed by the parties or to find out
and declare who among the parties performed better.
Hon‘Ble the Supreme court in Manju Devi v. State of Rajasthan, (2019) 6
SCC 203held that Section 311 CrPC empowers the court to summon a
material witness, or to examine a person present at ―any stage‖ of
―any enquiry‖, or ―trial‖, or ―any other proceedings‖ under CrPC, or
to summon any person as a witness, or to recall and re-examine any
person who has already been examined if his evidence appears to it, to
be essential to the arrival of a just decision of the case. Undoubtedly,
CrPC has conferred a very wide discretionary power upon the court in
this respect, but such a discretion is to be exercised judiciously and not
arbitrarily. The power of the court in this context is very wide, and in
exercise of the same, it may summon any person as a witness at any
stage of the trial, or other proceedings. The court is competent to
exercise such power even suo motu if no such application has been filed
by either of the parties. However, the court must satisfy itself, that it
was in fact essential to examine such a witness, or to recall him for
further examination in order to arrive at a just decision of the case.
It has been further held in Mannan Shaikh v. State of W.B., (2014) 13
SCC 59that the aim of every court is to discover truth. Section 311 of
the Code is one of many such provisions of the Code which strengthen
the arms of a court in its effort to ferret out the truth by procedure
sanctioned by law. It is couched in very wide terms. It empowers the
court at any stage of any inquiry, trial or other proceedings under the

Code to summon any person as a witness or examine any person in
attendance, though not summoned as witness or recall and re-examine
already examined witness. The second part of the section uses the word
―shall‖. It says that the court shall summon and examine or recall or re-
examine any such person if his evidence appears to it to be essential to
the just decision of the case. The words ―essential to the just decision of
the case‖ are the keywords. The court must form an opinion that for the
just decision of the case recall or re-examination of the witness is
necessary. Since the power is wide its exercise has to be done with
circumspection. It is trite that wider the power greater is the
responsibility on the courts which exercise it. The exercise of this power
cannot be untrammeled and arbitrary but must be guided only by the
object of arriving at a just decision of the case. It should not cause
prejudice to the accused. It should not permit the prosecution to fill up
the lacuna. Whether recall of a witness is for filling up of a lacuna or it
is for just decision of a case depends on the facts and circumstances of
each case. In all cases it is likely to be argued that the prosecution is
trying to fill up a lacuna because the line of demarcation is thin. It is for
the court to consider all the circumstances and decide whether the
prayer for recall is genuine.
Other important Judgements on the point areMohanlal Shamji
Soni v. Union of India, 1991 Supp (1) SCC 271 : Zahira Habibulla H.
Sheikh v. State of Gujarat, (2004) 4 SCC 158 : Mina Lalita
Baruwa v. State of Orissa, (2013) 16 SCC 173, Rajaram Prasad
Yadav v. State of Bihar, (2013) 14 SCC 461, and Natasha Singh v. CBI,
(2013) 5 SCC 741 :
Sec 311 A - Magistrate can direct any person including accused to give
specimen signature or handwriting, (for investigation or other proceedings
under Cr.P.C) if such person is arrested in connection with such
investigation.

Statement of accused under section 313
In all the criminal trials the proceedings subsequent to recording of

prosecution evidences is similar and where there are evidences which are
likely to be used against the accused he shall be afforded an opportunity
to explain the evidences coming against him by examining the accused
under the provision of section 313 Cr.P.C. The statement of the accused
shall be recorded as per the procedure mentioned under section 281
Cr.P.C. The age assessed by the court in the statement under section 313
may differ from the age disclosed by the accused and the same is
mentioned in the cause title of the judgment, therefore, it should be
recorded carefully. While section 313(1)(a) is optional 313 (1)(b) is
mandatory. Any incriminating circumstance which has not been put to the
accused as a question under section 313 Cr.P.C. cannot be used against
the accused for his conviction (Sharad Birdhichand Sarda Vs. State of
Maharastra, AIR 1984 SC 1622,Lallu Manjhi Vs. State of Jharkhand, 2003
(2) SCC 401)

9. JUDGMENTS AND SENTENCES WHICH COURTS MAY PASS.
The Judgment must be pronounced by the Court exercising Powers

under the Cr.P.C. in terms of the provisions of Section 353 and 354 of the
Code of Criminal Procedure as well as in terms of the Rules contained in
Chapter X ( Rule 53 to 57) of the Criminal Court Rules of the High Court of
Jharkhand
What is a judgment?
In its broader sense, it is defined as the faculty of being able to make

critical distinctions and achieve a balanced viewpoint. In law, it refers to
the verdict pronounced by a court of law; a judicial determination or
decision of a court; an adjudication of rights and obligations; and the
reasons in support of an order or a decree. Rendering judgments is
deciding the rights and obligations of parties, or the guilt or innocence of
an accused, and in many cases, the fate of persons. A Judge renders
justice through his decisions. The decision-making culminates in the
judgmentwhich is the heart and soul of the judicial process. Rendering a
judgmentinvolves two processes. The first is arriving at the decision. The
second is giving expression to such decision in the form of a written
opinion supported by reasons.
Decision-making is not about writing a judgment. Nor does it begin when a

Judge starts hearing final arguments. It pervades every stage of the case
— in making interim orders, in framing issues or charges, in allowing or
disallowing questions in oral evidence, in admitting or rejecting
documents, in hearing arguments, in analysing the material and reaching
a decision, and even in granting or refusing adjournments. In short, it is
the way the Judge hears, behaves, conducts and decides a case.
A judgment written well with clarity and consistency, even a common

man would be able to figure out the contours of law. courts should only

deal with the subject-matter of the case and issues involved therein. A
court may express its views on a particular issue in appropriate cases only
where it is relevant to the subject-matter of the case. Som Mittal v. Govt. of
Karnataka, (2008) 3 SCC 574
The main functions of a reasoned judgment are:
(1) to inform the parties (litigants) the reasons for the decision;
(2) to demonstrate fairness and correctness of the decision;
(3) to exclude arbitrariness and bias; and
(4) to ensure that justice is not only done, but also seen to be done.
The very fact that a Judge has to give reasons that will have to stand
scrutiny by the Bar and the public as also by the higher courts, brings in
certain amount of care and caution on the part of the Judge and
transparency in decision-making. Unless the evidence placed by the
parties and the contentions urged by them are considered and dealt with
in the judgment, the litigant and the world at large cannot know whether
the decision is based on facts or law, or whether it is a result of prejudice
or ulterior motives.
Judgmentwill have to be understood by: (a) the parties and their

counsel; (b) the authorities who are required to comply with it or
implement it; (c) the members of the Bar and public who may like to rely
on it, where it has a precedential value; and (d) the appellate/revisional
court which has to find whether it is right or wrong.
Therefore, a goodjudgment, apart from being fair, reasonable and

correct on facts and law, should be self-contained, precise, clear and
analytical. The relief granted or directions issued should be specific and
not vague. Thejudgmentshould be capable of being easily understood and
demonstrate fairness in trial and decision.

Section 354 CrPC requires that every judgment shall contain the points
for determination, the decision thereon and the reasons for the decision. It
also requires that the judgment should specify the offence for which the
accused is being convicted and the section under which he is being
convicted and the punishment to which he is sentenced. If the judgment is
one of acquittal, it has to state the offence of which the accused is
acquitted and direct that he be set at liberty.
Thejudgmentshould set out the particulars of the offence, the

prosecution case, the plea of the accused, the evidence of the prosecution
witnesses, the case of the defence, discussion of the evidence and
conclusions. Thejudgmentshould show whether the evidence shows proof
beyond reasonable doubt as contrasted from civil cases, where the
decision is based on preponderance of probabilities.
It is worthwhile to keep the following basic rules in mind while writing a

judgment:
a. Reasoning should be intelligible and logical.
b. Clarity and precision should be the goal. Prolixity and verbosity

should be avoided. At the same time, brevity to an extent where
reasoning is the casualty should be avoided.
c. Use of strange and difficult words and complex sentences should be

avoided. The purpose of a judgmentis not to showcase the Judge's
knowledge of English, or legal erudition, but to decide disputes in a
competent manner, and state the law in clear terms.
d. A Judge cannot use his personal knowledge of facts in a judgment.
e. If a Judge wants to rely on precedents or decisions unearthed by the

Judge by his own research, he has to give an opportunity to the
parties to comment upon or distinguish the same.

f. Recording findings on issues or matters which are unnecessary for
disposal of the matter should be resisted.
g. Findings of fact should be based upon legal testimony. The decision

should rest upon legal grounds. Neither findings of fact nor the
decision should be based on suspicions, surmises or conjectures.
h. All conclusions should be supported by reasons duly recorded. The

exceptions are where an action is undefended or where the parties
are not at issue, or where proceedings are summary or interlocutory
or formal in nature.
i. The findings and directions should be specific and precise.
j. A judgmentshould avoid use of disparaging and derogatory remarks

against any person or authority whose conduct arises for
consideration. Even when commenting on the conduct of the parties
or witnesses, a Judge should be careful to use sober and restrained
language. It should be remembered that the Judge making the
remark is also fallible.
k. Before making any adverse remarks, court should consider: (i)

whether the party or the person whose conduct is being discussed
has an opportunity of explaining or defending himself against such
remarks; (ii) whether there is evidence on record bearing on the
conduct justifying the remark; (iii) whether it is necessary to
comment or criticise or censure the conduct or action of the person,
for the decision of the case.
Sentences Which Courts May Pass

A High Court may pass any sentence authorised by law.-Sec.
28.(1)Cr.P.C
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.-
Sec.28.(2)Cr.P.C
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.-Sec.28.(3)Cr.P.C
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.-Sec.29.(1)Cr.P.C
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
ten thousand rupees, or of both.-Sec.29.(2)Cr.P.C
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
one thousand rupees, or of both.-Sec.29.(3)Cr.P.C
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 therefore, 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.
Sec.31.(1)Cr.P.C
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
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.
Sec.31.(2)Cr.P.C
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. Sec 31.(3)Cr.P.C
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 one-fourth 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. Sec
30(1) Cr.P.C
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. Sec 30(2)Cr.P.C
Sentence of imprisonment for non-payment of fine - In every case,
of an offence punishable with imprisonment as well as fine, in which the
offender is sentenced to a fine, whether with or without imprisonment, and
in every case of an offence punishable [with imprisonment or fine, or] with
fine only, in which the offender is sentenced to a fine,] it shall be
competent to the Court which sentences such offender to direct by the
sentence that, in default of payment of the fine, the offender shall suffer
imprisonment for a certain term, which imprisonment shall be in excess of
any other imprisonment to which he may have been sentenced or to which
he may be liable under a commutation of a sentence.IPC Section 64.
Limit to imprisonment for non-payment of fine, when
imprisonment and fine awardable -The term for which the Court directs

the offender to be imprisoned in default of payment of a fine shall not
exceed one- fourth of the term of imprisonment which is the maximum
fixed for the offence, if the offence be punishable with imprisonment as
well as fine.IPC Section65.
Description of imprisonment for non-payment of fine - The
imprisonment which the Court imposes in default of payment of a fine may
be of any description to which the offender might have been sentenced for
the offence.IPC Section 66.
Imprisonment for non-payment of fine, when offence punishable
with fine onlyIf the offence be punishable with fine only, [the
imprisonment which the Court imposes in default of payment of the fine
shall be simple, and] the term for which the Court directs the offender to
be imprisoned, in default of payment of fine, shall not exceed tile following
scale, that is to say, for any term not exceeding two months when the
amount of the fine shall not exceed fifty rupees, and for any term not
exceeding four months when the amount shall not exceed one hundred
rupees, and for any term not exceeding six months in any other case.IPC
Section 67.
Imprisonment to terminate on payment of fineThe imprisonment
which is imposed in default of payment of a fine shall terminate whenever
that fine is either paid or levied by process of law.IPC Section 68.
Termination of imprisonment on payment of proportional part of
fineIf, before the expiration of the term of imprisonment fixed in default of
payment, such a proportion of the fine be paid or levied that the term of
imprisonment suffered in default of payment is not less than proportional
to the part of the fine still unpaid, the imprisonment shall terminate.IPC
Section 69.

10. SEARCH, SEIZURE, ATTACHMENT AND DISPOSAL OF
PROPERTY
Sections which deal with Search, Seizure, Attachment and Disposal

of Property are: Sections 51, 52, 83, 93(2), 94, 95, 100, 102, 105(E),
451&457.
Search of a person and search of premise.
Production of seized articles before court.
Forwarding of seized articles for further examination.
Release and disposal of seized articles.
Search of a person and search of premise:

The Code of Criminal Procedure lays down specific and distinct
procedure for the search of person and that of close premise. Provisions of
search of person has been made in section 51 which is as under
Section 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,
andwhenever 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.

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.
Whenever it is necessary to cause a female to be searched, the search shall
be made by another female with strict regard to decency.Section 51
Cr.P.C.
Section 100 Code of Criminal Procedure, 1973 provides for search of

a closed place.
It imposes certain essential obligations on (1) persons in-charge of
closed place. (2) The Officer or other person conducting the search in said
place and (3) the general public.
This section consists of eight sub-sections. Sub-section (1) to sub-
section (3) details out the obligations which are to be performed by the
persons in-charge of closed place to be searched whereas sub-section (4)
to sub-section (7) deal with the obligations which an Officer executing the
search warrant is required to perform. Sub-section (8) imposes obligation
on each and every person to attend and witness search, when called upon
to do so by the Officer executing the search warrant.
The Section 100 Code of Criminal Procedure has three essential
aspects:
(1) It requires that the person residing or in-charge of the closed place
to be searched shall afford all reasonable facilities for search
therein;
(2) It empowers the other persons authorized to execute police search
warrant to proceed in the manner provided by Section (2) of Section
47;

(3) It provides procedure for search [including woman]. Taking and
selecting of witnesses, nature and character of witnesses,
preparation of search memo and issuance of its copy.
The object of Section 100 is to see that searches are made properly by
the Investigating Officer. The object of making it peremptory on the part
of the Police Officer to make the search in the presence of two
respectable inhabitants is to ensure that the Police Officers or those
who are charged with the duty of conducting searches conduct them
properly and do not harm or wrong such as planting of articles by any
interested parties and prevent fabrication of any false evidence. The
presence of two respectable witnesses is insisted upon by this provision
to act as a safeguard against unfair dealings and to protect and
safeguard the interest of the accused persons.Section 100 of the
Criminal Procedure Code deals with searches not seizures. In the very
nature of things when property is seized and not recovered during a
search it is not possible to comply with provisions of sub-sections 4
and 5 of the Criminal Procedure Code. 1983 AIR (SC) 1225.
Distinction between section 51 and 100 Cr.P.C. :

The provisions of search as laid down in Section 100 of the Code of
Criminal Procedure does not apply to search under Section 51. Provisions
of Section 100 apply when search of a place is conducted and not
when search of a person is made. 1956 AIR(SC) 411; 1956 CrLJ 801,
Sunder Singh VersusState of U.P.,
It has been held in Safi Mohammad Vs. State of Rajasthan, AIR 2013
SC 2519that even if the search is made by the Investigating officer in illegal
manner, the same does not affect the legality of the search and
investigation made by Investigating officer with regard to the seizure of the
document from the house of the appellant.
Radha Kant Yadav Vs. State of Jharkhand, 2002 (3) JLJR 135 –
Modan Singh Vs. State of Rajasthan, (1978) 4 SCC 435 - Investigating
Officer becomes the direct witness on the point of recovery and if any
witness does not support this fact then unless there is motive on the part
of the I.O. to create false evidence the direct evidence of the I.O. cannot be
disbelieved only because the witness who signed the document have
turned hostile. ---- there is no law that I.O‘s. evidence should be looked
with suspicion and his evidence need corroborated by some witnesses.
State Vs. Navjot Sandhu, 2005 (11) SCC 600 - There is no inflexible
proposition of law that in the absence of independent witnesses being
associated with the search, the seizure cannot be relied upon. But in that
case closure scrutiny of evidence will be required.
Power to seize offensive Weapons—Section 52 of the Cr.P.C. provides
that 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.
If the investigating officer seizes an article during investigation he
shall forthwith report the same before the court. The property shall be
produced before the court without much delay. Report will be received in
court and the property will be produced along with the seizure list.
It is found that the witnesses who have been examined for attesting
the seizure have not supported the prosecution version. On behalf of the
defence it was submitted that the seizure witnesses were men of status in
the village and their not supporting the recovery would be fatal to the
prosecution. We would rather not place any reliance on the witnesses who
attested the seizure memo. If the evidence of the investigating officer who
recovered the material objects is convincing, the evidence as to recovery
need not be rejected on the ground that seizure witnesses do not support
the prosecution version. Modan Singh Vs. State of Rajasthan, (1978) 4
SCC 435

Under this section52 and section 51 Code of Criminal Procedure,
1973 a Police Officer conducting search is statutorily bound to keep
articles seized from the person if the accused person is in safe custody and
provides receipt of such articles. Normally recovery/seizure memo shall be
prepared on the spot of search and recovery.
When the evidence of search and recovery is reliable and then the
omission to prepare the recovery memo would not be of much significance.
In Jagdish Rai v. State of Bihar, 1972 Cri LJ 525 (527, para 8).(1972) 3
SCC 264it has been held that no seizure memo regarding the stolen
property was prepared when the accused was produced along with those
articles before Police authorities. This circumstance, in the opinion of the
Hon‘ble Apex has been found not of much significance because the
evidence of said police officer tends to show that the recovery of the stolen
articles was mentioned in the report sent by the said police officer and
those articles too were sent along with the report forwarded by the witness
to Government Railway Police Station.Similar view was taken again by the
Apex Court in Rajpal v. State ofMaharashtra. 1974 SCC (Cri) 123.
It is well settled that merely because the panch witnesses do not

support the case of the prosecution, the case of the prosecution need not
be thrown over-board as unreliable. It may be realized that the
phenomenon of panch witnesses turning hostile to the prosecution is not
unknown and is ever on the increase. It needs hardly to be emphasized
that the decision of a case does not depend solely on the question whether
the panch witnesses support the prosecution or turn their back on it. If
the decision of the case were to depend solely on the testimony of panch
witnesses regardless of the evidence of police officers, in theory, it would
be giving a right to veto to thepanchasso far as the question of culpability
of an accused is concerned, which is not permissible in criminal
jurisprudence. It is well settled that without good ground being pointed
out, testimony of police officer, if otherwise found to be true and
dependable, cannot be discarded by court on the ground that he is a police
officer..Vipulbhai Batukbhai Barwalia v.State of Gujarat 2010 SCC OnLine
Guj 8438
In yet another case before the Hon‘ble Apex Court inMohd. Aslam v.
State of Maharashtra, (2001) 9 SCC 362wheretwo panch witnesses who
were cited to support the recovery turned hostile and therefore the
evidence of the Investigating Officer became unsupported. It was held ―We
cannot agree with the said contention. If panch witnesses turned hostile,
which happens very often in criminal cases, the evidence of the person who
effected the recovery would not stand vitiated. Nor do we agree with the
contention that his testimony is unsupported or uncorroborated.‖
Proclamation and Attachment of Property :
Section 82 of the Code authorises the Court to declare a person

absconding on existence of the circumstances specified therein. The Court
issuing a proclamation under Section 82 may, for reasons to be recorded
in writing, at any time after the issue of proclamation, order the
attachment of any property, movable or immovable or both, belonging to
the proclaimed person in exercise of Section 83 of the Code. Amina Ahmed
Dossa & Ors. Versus State of Maharashtra 2001 2 SCC 675
Section 82provides that if a Court has reason to believe that any
person against whom a warrant had been issued is absconding or is
concealing himself to avoid such execution the 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 publishing of said
proclamation. Thereafter Section 83provides that 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, immovable or both belonging to the proclaimed person.
The Patna High Court has held that the object of the section is to compel
an accused person to appear in obedience to a warrant issued by the
Criminal Courts. The attachment and sale of his property provided for are
a penalty sought to be enforced against the accused to coerce him to
respond to the orders of the Criminal Courts and to take his trial and not
to avoid the reach of justice. Section 83enjoins upon the court to record
the reasons in writing for ordering the attachment of any property
belonging to the person who has been proclaimed as an offender under
Section 83CrPC.
Even the order of attachment of property has two prerequisites.
Firstly the court has to satisfy itself either by affidavit or otherwise that the
person in relation to whom the proclamation is to be issued is about to
dispose of whole or any part of the property or secondly that he is about to
remove while or part of the property from the local jurisdiction of that
court. Mani Shandly v. State, 2008 (2) Crimes 718 (Del).
Section 82 of Code of Criminal Procedure, 1973 authorizes the Court
to declare a person absconding on existence of the circumstances specified
therein. The Court issuing a proclamation under Section 82 may, for
reasons to be recorded in writing, at any time after the issue of
proclamation, order the attachment of any property, movable or immovable
or both, belonging to the proclaimed person in exercise of Section 83 of the
Code.
Section 82 requires that the Court must, in the first instance, issue a
warrant [naturally bailable. It is not at all necessary or desirable to issue
non-bailable warrant as a first step though the court may] and it must put
down its reasons for believing that the accused is absconding or concealing
himself. There must be some evidence on file to establish that every
possible effort sanctioned in the Code, was made to serve the said non-
bailable warrant and such proof must be available on record.The issuance
of the warrant of arrest and Issuance of Proclamation Order
simultaneously is totally illegal. 1960 Cri.LJ 501 (Pat.).

Section 84 Code of Criminal Procedure, intends to safeguard the
interest of persons whose property interest are affected by the wrongful
attachment of some property mistaking it the property of a proclaimed
offender. The general law is that the court by which the order of
attachment is issued under Section 83 is empowered to inquire into and
decide claims and objections preferred by persons other than proclaimed
offenders, but if the claim or objection is in respect of property attached
under an order endorsed under sub-section (2) of Section 83, then such
claims or objections are to be inquired into and decide by the court of Chief
Judicial Magistrate of the district in which the attachment is made.
Section 85 deal with the release, sale and restoration of attached
property of the proclaimed person. It discloses the legal consequences as to
the fate of attached property when a proclaimed person appears or fails to
appear within time specified in the proclamation. The attached property of
a proclaimed offender shall be released, when, such person
(i) Appears in Court within the specified time;
(ii) is arrested and before the Court in execution of the warrant
issued under Section 70 of the Code, 1973, or
(iii) when a warrant for levy of fine by attachment is issued under
section 421(1) (a) of the Code, 1973 after conviction of the
accused person.
But in a case of otherwise situation, the proclaimed person does not

appear within the time specified in the proclamation the property under
attachment shall be at the disposal of the state government. In this
connection, the expression ―at the disposal of the state government has
been interpreted to mean absolute control over the attached
property.‖Securing the attendance of an absconding accused under
Section 85 CrPC is a matter between the State and the accused
The words ―shall be at the disposal of the Government‖, do not mean

that from the moment the absconder fails to appear on the date fixed, all
his right, title and interest in the property immediately pass over to the
Government.
In the case of M.P. Sharma v. Satish Chandra,AIR 1954 SC 300A
constitution Bench of Eight Judges of the Apex Court has held that a
power of search and seizure is in any system of jurisprudence an
overriding power of the State for the protection of the social security and
that power is necessarily regulated by law, though fit not to subject such
regulation to constitutional limitations by recognition of a fundamental
right to privacy analogous to the analogous to the Americas fourth
Amendment, we have no justification to import it into a totally different
fundamental right by some process of strained construction nor it at
legitimate to assume that the constitutional protection under Article 20(3)
would be defeated by the statutory provisions for searches. It was
concluded by the said Constitution Bench that a search under the
enabling provisions of the Criminal Procedure Code cannot be challenged
as illegal on the ground of violation of Article 20(3). Section 93.of the
Cr.P.C. provides when search-warrant may be issued.Section 93 Code of
Criminal Procedure, 1973 empowers Court to issue search warrant and
lays down various essential conditions for issuance of search warrants.
Anatomy of Section 93would disclose that it consists of three sub-sections
1 to 3. Sub-section (1) envisages situations wherein particulars and
general search warrants may be issued. Sub-section (2) empowers the
Court to specify in the warrant the particular place or part thereof to which
only the search or inspection shall extend. Sub-section (3) provides that to
grant a warrant to search for a document or parcel or other thing in the
custody of the postal, telegraph authority only the D.M., C.J.M. are
empowered. Sub-section (2) of Section 93Code of Criminal Procedure, 1973
empowers a Court, in his wisdom to specify in the warrant the particular
place or part thereof to which only the search or inspection shall extend.

This Section 94 is not exhaustive as to the provisions of search. In
Purshottam Dass v. State (Delhi), 1975 0 CrLJ 309 it was held that this
is no prohibition in Section 94 that a police officer cannot, without a prior
permission obtained under this section, carry out a search. It is only where
an order has been passed under this section that the search has to be
carried out in the manner which may be specified in the warrant issued for
the purpose. It does not provide any mandate imposing an obligation
impairing the powers given by Section 165, Criminal Procedure Code.
Section 94is intended as emergency provision Ganga Dharan v. Kochappa
Chettapran1985 Cri LJ 1517(1520) Ker.. Please see the following chart for
the terms used in Section 94of the Code of Criminal Procedure, 1973, as
they are defined in Indian Penal Code.
1)Reason to believe Section 27 Indian Penal Code.
(2)Stolen property Section 410 Indian Penal Code.
(3)Forged documents Section 470 Indian Penal Code.
(4)Counterfeit Currency Notes Section 489A Indian Penal Code.
(5)Obscene objects Section 292 Indian Penal Code.
The power to issue an order of forfeiture of certain publications which

were considered by the Government to be objectionable and the
proceedings consequent thereto is contained in Sections 95 and 96 of the
Code, 1973. Sections 95 and 96 form a single scheme dealing with the
same subject matter viz. forfeiture of objectionable matter. Both the
sections should be read together. The provisions under Section 95 are
wider than the provisions of Section 153A Indian Penal Code. Section 95
Code of Criminal Procedure, 1973 empowers the State Government to
declare certain publication containing objectionable matter 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

forfeited and to issue search warrants for the same. 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 in order bereft of the grounds of opinion does
not stand the test of legality. Mere reproduction of ingredients of relevant
section of IPC is not sufficient.
The provisions contained in Section 100 CrPC relating to search and

seizures within a closed place are the safeguards to prevent the
clandestine use of powers conferred on the law enforcing authorities. They
are powers incidental to the conduct of investigation and the legislature
has imposed certain conditions for carrying out search and seizure in the
Code. The courts have interpreted these provisions in different ways. One
view is that disregard to the provisions of the Code of Criminal Procedure
relating to the powers of search and seizures amounts to a default in doing
what is enjoined by law and in order to prevent default in compliance with
the provisions of the Code, the courts should take strict view of the matter
and reject the evidence adduced on the basis of such illegal search. But
often this creates a serious difficulty in the matter of proof. Though
different High Courts have taken different views, the decisions of this
Court quoted above have settled the position and we have followed the
English decisions in this regard.
The general provisions given in the CrPC are to be treated as guidelines
and if at all there is any minor violation and the courts have got
discretionary power to either accept it or reject it.
105E. Seizure or attachment of property—(1) Where any officer

conducting an inquiry or investigation under Section 105D 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.
Disposal of Seized Articles
Secs 451 to 459 of the CrPC deal with the disposal of property in
a criminal court.
Order for custody and disposal of property pending trial in certain
cases—When any property is produced before any Criminal Court during
any inquiry or trial, the Court may make such order as it thinks fit for the
proper custody of such property pending the conclusion of the inquiry or
trial, and, if the property is subject to speedy and natural decay, or if it is
otherwise expedient so to do, the Court may, after recording such evidence
as it thinks necessary, order it to be sold or otherwise disposed
of.SECTION 451
Explanation:—Forthe purposes of this section ―property‖ includes—
(a) property of any kind or document which is produced before the
Court or which is in its custody.
(b) any property regarding which an offence appears to have been
committed or which appears to have been used for the commission of any
offence.

Court is empowered under Section 457, Code of Criminal Procedure to
release the property seized by the police but not yet produced before the
Court. Section 451 is about such property which is seized by the police
and is produced before the Court. Section 452 deals with the cases in
which trial is concluded. Order under Section 452 is of final nature
whereas order under Section 451 can only be of interim nature.
Section 452 would apply at the stage of conclusion of trial. In cases of
offences under the Arms Act it is obligatory upon the court concluding the
trial to pass appropriate orders for disposal of seized articles (Cr.Appeal
(SJ) No 372of 2004 – Md. Isteyaque VS. The State of Jharkhand.) An
order may be made under sub-Section (1) of Section 452, Cr.P.C. for
(1) The delivery of the property;
(2) The destruction of the property and
(3) The confiscation of the property.65
But order must contain a speaking order as to how the property shall be
disposed of.
Section 451and 457 of the Code of Criminal Procedure, 1973, somewhat
overlap, though Section 457 is a general provision applicable in all cases
where there is no enquiry or trial pending. The powers of courts under
Section 451are somewhat limited than those in the case of Section 457,
Section 451mainly speaks of the proper custody of property pending
conclusion of the enquiry or trial whereas under section 457 says that the
Magistrate ―may make such order as he thinks fit respecting disposal of
property or delivery of such property to the person entitled to the
possession thereof….‖ Each case is to be governed by its own facts and
circumstances and it cannot be laid down as a broad proposition of law
that in no case, the custody of the seized property can be given either to
the accused or to the complainant, pending disposal of the main case,
Section 451 contains no such restriction nor can be read between the
lines.Section 451 enables the Magistrate to provide for interim custody of
property pending conclusion of enquiry or trial. It is only a temporary
arrangement and what is contemplated is only an interim provision to
provide custody with a proper person as the court thinks fit with liability
to produce the property back as and when directed by the Court. The
maximum duration of the arrangement is only till conclusion of the
enquiry or trial. It follows that the arrangement is only temporary and the
main object is to protect or preserve the property pending trial. Even if the
person entrusted with interim custody is the owner his possession or
custody during the period of entrustment is onlyanrepresentative of the
court and not in his independent right.
For applicability of Section 451, Code of Criminal Procedure, the word
property includes movable as well as immovable property.
If the investigating officer seizes an article during investigation he
shall forthwith report the same before the court. The property shall be
produced before the court without much delay. Report will be received in
court and the property will be produced along with the seizure list.
Section 451 and 457 – Distinction
The essential distinction is when property is produced Sec.451 would
apply and if not produced, but seizure is reported, Sec.457 would
apply.Criminal court has power to release property seized by the police
from a person and reported to the Court but not yet produced before the
Court. The scheme of Chapter 34 regarding disposal of property envisages
three contingencies. S. 451 of the Code is intended to dispose of property
on an interim arrangement pending the conclusion of the inquiry or trial.
S. 452 of the Code will apply when the trial or inquiry is concluded, S.
457(1) of the Cr. P.C. is applicable only when the property seized is not
produced before the Criminal Court during an enquiry or trial. This has
been explained by the Supreme Court in Ram Prakash Sharma v. State of
Haryana (1978) 2 SCC 491). The Supreme Court held:
―Chapter 34 of the Criminal Procedure Code deals with disposal of
property. There is a trichotomy in the sense that where property has
been seized by the police, but not produced before the court, the power
to dispose it of is covered by S. 457. Where property has been seized
and/or otherwise produced before the court, the manner to dispose of
such property is governed by Section 451. If the question of disposal
arises after the enquiry or trial in any criminal court is concluded, the
disposal of the property involved in the case is governed by Section 452.
We need not go elaborately into the implications of each provision since
we are not called upon to do so in the present case.
A bank account is a property within the meaning of 102 of the Cr.PC

and can be dealt with by IO. Then Court can exercise the power under
Sec.451 or Sec.457, as the case may be. State of Maharashtra v. Tapas
D. Neogy 1999 (7) SCC 685
Sec.451 application can be filed during the pendency of inquiry or

trial. Court can make such order for the proper custody of the property
pending the conclusion of inquiry or trial if no purpose is served by
keeping the same in his custody.
InSunderbhai Ambalal Desai v. State of Gujarat (2002) 10 SCC 283
and General Insurance Council v. State of Andhra Pradesh 2010(6)SCC
768 the Honourable Supreme Court held that Magistrates shall pass
orders regarding the custody of the property without delay.
The property not suspected of commission of the offence which is
being investigated into by the police officer cannot be seized. Under
Sec.102 of the Code, the police officer can seize such property which is
covered by Sec.102(1) and no otherwise (M. T. EnricaLexie v. Doramma AIR
2012 SC 2134).
Disposal Under Special Statutes

If there is any special provision in a particular statute as to the mode of
disposing the property, then it has to be followed. When statute provides
for interim disposal and confiscation 451 can be invoked only if
confiscation proceedings are not initiated. Indian Forest Act Section 52 C
of the Bihar amendment ousts the jurisdiction of the courts to release any
property subject to confiscation.
"52-C. Bar of Jurisdiction of Courts etc. in certain circumstances.-(1) On

receipt of intimation under sub-section (4) of section 52 about initiation of
proceedings for confiscation of property by the magistrate having jurisdiction
to try the offence on account of which the seizure of property which is
subject matter of confiscation, has been made, no Court, Tribunal or
Authority (other than the authorized officer, Appellate Authority and
Revision Authority referred to in sections 52, 52A and 52B) shall have
jurisdiction to make orders with regard to possession, delivery, disposal or
distribution of the property in regard to which proceedings for confiscation
are initiated in this Act, or any other law for the time being in force.
Explanation.-Where under any law for the time being in force, two or
more courts have jurisdiction to try forest offence, then on receipt of
intimation under sub-section (4) of section 52 by one of the Courts of
Magistrates having such jurisdiction shall be construed to be receipt of
intimation under that provision by all the Courts and the bar to exercise
jurisdiction shall operate on all such Courts.
Hon‘ble the supreme court in The State of Bihar & Anr. –Appellants
versus Kedar Sao & Anr 2003AIR(SC) 3650held in the following wordings:-
―All the more so, in our view, in this case, having regard to Section 53-
C inserted by the Bihar Amendment Act 9 of 1990 in the Indian Forest Act,
1927, which in unmistakable language of a mandatory nature, ordaining
that on receipt of intimation under sub-section (4) of Section 52 about
initiation of proceedings for confiscation of property, by the Magistrate

having jurisdiction to try the offence on account of which the seizure of
property, which is subject matter of confiscation, has been made, no Court,
Tribunal or Authority (other than the Authorized Officer, Appellate Authority
and Revision Authority referred to in Sections 52, 52A and 52B) shall have
jurisdiction under the said Act or any other law for the time being in force to
make orders with regard to possession, delivery, disposal or distribution of
the property in regard to which proceedings for confiscation are initiated‖.
Thus the Forest produce shall also not be released.
In case where the value of the vehicle has to be ascertained, it may be
ascertained through AMVI/MVI.
Disposal of different types of properties
Perishable Items: -
The Magistrate may direct that such goods be delivered to the owner
or the person entitled to the possession with such conditions as may think
fit under Sec.457 read with 459 of the Code. If such property is unclaimed,
the property may be sold in public auction and the sale proceeds shall be
deposited in Criminal Court Deposits and shall be entered in Property
Register. After final disposal of the case, the sale proceeds of unclaimed
property shall be confiscated to State.
Live Stock: -
Where live stock is seized the descriptive particulars and other
identification marks be noted and such property can be returned to the
owner for interim safe custody. The Court can even direct the owner to file
periodical report about the condition of the livestock.
Valuable Articles and Currency Notes

The guidelines given in Sunderbhai Ambalal Desai v. State of Gujarat
(2002) 10 SCC 283 be followed.
Gold and Silver Items:

When any gold and silver items are produced before the Court by police,

the said property be certified and weighed by the appraiser and shall
obtain a certificate to that effect. In such cases, Magistrate should pass
appropriate orders as contemplated under Section 451 Cr.P.C. at the
earliest.For this purpose, if material on record indicates that such articles
belong to the complainant at whose house theft, robbery or dacoity has
taken place, then seized articles be handed over to the complainant after:-
(1) preparing detailed proper panchnama of such articles;
(2) taking photographs of such articles and a bond that such articles
would be produced if required at the time of trial; and
(3) after taking proper security.
For this purpose, the Court may follow the procedure of recording such
evidence, as it thinks necessary, as provided under Section 451 Cr.P.C.
The bond and security should be taken so as to prevent the evidence being
lost, altered or destroyed. The Court should see that photographs of
such articles are attested or countersigned by the complainant,
accused as well as by the person to whom the custody is handed over.
Still however, it would be the function of the Court under Section 451
Cr.P.C. to impose any other appropriate conditions.
VehiclesIt is for the Magistrate to pass appropriate orders immediately by

taking appropriate bond and guarantee as well as security for return of the
said vehicles, if required at any point of time. This can be done pending
hearing of applications for return of such vehicles. In case where the
vehicle is not claimed by the accused, owner, or the insurance company or
by third person, then such vehicle may be ordered to be auctioned by the
Court. If the said vehicle is insured with the insurance company then
insurance company be informed by the Court to take possession of the
vehicle which is not claimed by the owner or a third person. If Insurance
company fails to take possession, the vehicles may be sold as per the
direction of the Court. The Court would pass such order within a period of
six months from the date of production of the said vehicle before the
Court. In any case, before handing over possession of such vehicles,
appropriate photographs of the said vehicle should be taken and detailed
panchnama should be prepared.
For articles such as seized liquor also, prompt action should be taken in
disposing it of after preparing necessary panchnama. If sample is required
to be taken, sample may kept properly after sending it to the chemical
analyser, if required. But in no case, large quantity of liquor should be
stored at the police station. No purpose is served by such storing.
Similarly for the Narcotic drugs also, for its identification, procedure under
Section 451 Cr.P.C. should be followed of recording evidence and disposal.
Its identity could be on the basis of evidence recorded by the Magistrate.
Samples also should be sent immediately to the Chemical Analyser so that
subsequently, a contention may not be raised that the article which was
seized was not the same or the procedure under NDPS be followed
whichever is applicable.
Explosive Devices/ Bombs:-

Soon after the seizure of any bombs/ explosives, the Police take
precautions for safe handling and report the same to the Court and also
inform the same to Bomb Defusing Squad / Team for necessary
instructions. Bombs not be produced before court. The court may pass
appropriate orders which are essential for safe handling of explosive items
and to send them to Forensic Analysis and/or its diffusion or destruction
as the case may be.
Bharat Mehta Vs. State through Inspector of Police, Chennai, 2008
(2) Supreme 596
Question for consideration: Where a vehicle which is under hire
purchase agreement is seized in a criminal case who shall be regarded the
real owner of the vehicle for release? Whether it will be the financer or the

party who has taken it on hire purchase agreement?
Held- Financer is the owner and the vehicle need to be released in
favour of the financer.
When The Seized Article Is Not to Be Released in Favour of the

Accused:
(i) Where during the trial at any point of time the accused has denied
to be in possession of the seized articles it cannot be released
subsequent to his acquittal on technical grounds.
(ii) Coal should not be ordinarily released unless duly verified papers
along with reliable reasons for nonproduction of the documents for
transportation etc. are produced in the court.
(iii) No release of forest produce including vehicle of transportation
etc. where confiscation proceeding has been initiated.
(iv) No release of country made and illegal arms.
Procedure in sending materials to FSL
The investigating officer shall produce in the court sample of

materials seized by him in the prescribed form. The legible seal of the I.O.
and the Gazetted officer (wherever necessary) must be affixed and it must
be signed by the sealing officer(s) with name & Designation. One sample of
each seized material be sent to FSL or to the expert examiner at the
earliest possible time with proper forwarding letter from competent
authority with details of the sample. The net and gross weight of each
sample/parcel must be mentioned individually in the forwarding letter and
on the parcel as the case may be.
Forwarding Note
In all cases where the examination of any material is required at the
Forensic Science Laboratory, copy of this form duly filled in must
accompany the exhibits.

Case No. Police Station :
District :
Sec of Law:
1. NATURE OF CRIME
This covers nature of charge, brief history and any relevant details)
II. LIST OF EXHIBITS SENT FOR EXAMINATION
Sl.No Description How, when Source of Remarks
of the and by the
exhibits whom exhibits
found
III. NATURE OF EXAMINATION REQUIRED

(Including any information which will assist the examination)
** 1. The exact place from where the exhibits were collected.
2. If these exhibits were in the possession of the person
(Victim/suspect/witness).
The other details of the owners be furnished.
MemoNo……………………………………..Dated,
the………………………………………
Forwarding to the Director, Forensic Science Laboratory,

SPECIMEN SEAL
IMPRESSION Signature of the
Forwarding Officer:
Designation of the
Forwarding Officer:
It must authorize the SFSL to destroy the material exhibits if the test so
requires.
Note:- In the ―Nature of Crime‖ & ―Nature of Examination‖ care be taken to

ensure that all necessary information regarding individual samples
submitted is included.
In the packing of material for expert examination, it is important that
the specimen samples be well protected against contamination, from
outside sources. The specimen when received at the Laboratory must be a
true unadulterated sample of the material found at the scene of crime.
The exhibits be collected, packed and transported according to the
directions contained in Chapter 42 of the Police manual. Methods
described under each type of exhibit be meticulously observed.
The specimen must be in separate clean glass-stoppered bottles and

sealed.
The specimen seal impression be on sealing wax.
Certificate has to be signed by a competent forwarding authority and
forwarded to the Director, State Forensic Science Laboratory or as the case
may be with exhibits.
Certified that the DIRECTOR, STATE FORENSIC SCIENCE
LABORATORY, has the authority to examine the exhibits sent to him in
connection with the case of State
versus…………………………………......................under Sec………………and
if necessary, to take them to pieces or remove portions for the purposes of
the said examination.
Date:
Place: Signature and Designation
of the Forwarding Authority
In the case of documents

The questioned writings / signatures / typewriting etc. be encircled
with red / blue pencil and marking be given in ascending order as Q1, Q2,

Q3…. The appropriate standard materials, in original for comparison and
be given markings as S1, S2, S3. Similar type of specimen / admitted
writings / signatures / type writings / stamp impressions etc. Preferably a
document of contemporary period containing admitted signature/hand
writing shall also be forwarded. It mention specific nature of examination
required. Avoid folding and unusual handling of the documents. The
investigation officer deposit the documents in closed / sealed envelope
along with duly filled FSL Forms and Chalan for payment of fees, if
applicable.
Annexure -
Standard Requisition Form
1. Date :
2. Crime No and of Law :
3. Police Station & District :
4. Particulars of questioned writings or signatures along with the detailed

description of the documents containing such writings and signatures.(The
Questioned writings or signatures may be encircled with red pencil and
given markings such as Q1, Q2, Q3 etc.)
5. Particulars of documents and exact locations of erasures, alterations,

obliterations, interpolations, etc. which are alleged to have been made
6. Particulars of the standard writings
(a) Writings or signatures written in the normal routine and preferably

near about the period of questioned writings and signatures by the persons
concerned for comparison with the questioned writings and signatures.
(These writings may be encircled with the Blue pencil and given markings
such as A1, A2, A3 etc)
(b) Particulars of samples, ie, specimen writings and signatures written
to dictation by the persons concerned for comparison with the questioned

writings and signatures (These writings may be encircled with Blue pencil
and given markings such as S1, S2, S3, etc)
7. The age of writer, his name and any of his physical conditions, (such as
extreme illness, infirmity or injury to his hand or fingers or his mental
condition etc.) which are likely to affect the writings may be endorsed on
each sheet of specimen writings or signatures and be taken by the
Investigating Agency in the presence of the Magistrate or other witnesses.
8. Serial-wise questionnaire giving the exact nature of examinations required
to be made.
9. Mode of dispatch of Documents (through Special Messenger and if so, his
name and designation/Insured Post/Registered Post. Whether the
documents were sent in a sealed cover or unsealed cover)
Name, Signature and designation of the InvestigatingOfficer.
Compiled By
Biresh Kumar
Additional Director Cum Senior Faculty Member
(UBUNTU Master Trainer)
Judicial Academy Jharkhand.

11. VICARIOUS LIABILITY IN CRIMINAL LAW
Crime is essentially a mental process accompanied by an act in

violation of a criminal law. A guilty mental element is the foundation of
criminality unless it is dispensed with by the statute in strict liability
cases.
In Nathulal vs. State of M.P. AIR 1966 SC 43 the Apex Court aptly
observed, ―Definitions of diverse offences under the Indian Penal Code state
with precision that a particular act or omission to be an offence must be
done maliciously, dishonestly, fraudulently, intentionally, negligently or
knowingly. Certain other statutes prohibit acts and penalise contravention of
the provisions without expressly stating that the contravention must be with
a prescribed state of mind. But an intention to offend the penal provisions of
a statute is normally implicit, however, comprehensive or unqualified the
language of the statute may appear to be unless an intention to the contrary
is expressed or clearly implied, for the general rule is that a crime is not
committed unless the contravener has mens rea. Normally full definition of
every crime predicates a proposition expressly or by implication as to a state
of mind: if the mental element of any conduct alleged to be a crime is absent
in any given case, the crime so defined is not committed.‖
The need for an in-depth study and better appreciation of law

concerning joint liability arises on account of the sea change in the nature
of crime and its modus operandi. A brief review of the nature of crime will
show that crime has become a profitable enterprise for some, and the main
players and the king pins in such cases may not be directly involved in its
execution. Crime in such cases are not committed in the spur of moment
by feuding family members but are marked by cold planning and
dexterous execution by professional criminals. In cases of terrorism,
narcotics, gold smuggling, cyber crime etc there are even cross-border
connections. The challenge before criminal adjudication is to bring within
the legal net such conspirators and plotters who are not on the forefront
but operate from background. Further, there is a significant increase of
mob violence committed by a member of unlawful assembly and there is
need of better understanding of law on the point so that there is no
miscarriage of justice.
While in cases where the accused is the principal offender in the

crime and there is evidence of his direct participation, he can be charged
simplicitor for the offence without the aid of any provision for vicarious
liability. Difficulty arises in cases of vicarious liability where there may not
be direct physical participation of the accessories in the joint criminal
enterprise but the involvement is unmistakable. There may be cases where
the criminal act may have been committed in the furtherance of the
common intention or in the prosecution of common object or it may have
been abetted by the abettor or a part of a large conspiracy. The challenge
of criminal adjudication in such cases is to establish the tenuous link
between the offence and the instigators, conspirators and those facilitating
the offence. The common thread between the confederates of crime may
not be always visible, particularly where the crime is a planned enterprise
aided by modern technology. The theory of vicarious or constructive
liability, whatever we may call it, is aimed to bring within the legal net, the
category of offenders who are instantly not on the forefront. The provisions
relating to it have been embedded in the Indian Penal Code create criminal
liability by legal fiction by which mens rea is imputed on the basis of overt
or covert act of the offender.
When the Indian Penal Code was enacted in 1860, it was not codified
in Great Britain. It was but natural that Lord Macaulay who drafted the
Penal Code was much influenced by the common law principles which is
reflected not only in different sections of the Code but also in its
chapterization. The criminal liability under the Indian Penal Code for

criminal acts committed by groups has a distinct imprint of the English
Common Law which makes a distinction between the principal offender
and the accessories to the crime. The fastening of criminal liability on
persons other than the principal offenders for individual and collective
acts has always been a tricky business. Under English Law persons who
are in any way connected with the perpetration of crime can be divided
into two classes: - those who take part in the actual execution of the
crime, called the principals and those who counsel, procure or command
the execution and in any way assist the criminal after the crime with a
view to shield him from justice, called the accessories.
- Principal offenders – those who take part in actual execution of the

crime.
- Accessories – those who counsel, procure or command the
execution.
 Accessories before the fact- Chapter-V from Section 107 to
120
 Accessories at the fact – Section 34 to 38 Under chapter – II
and section 149 of the IPC
 Accessories after the fact-are scattered in different
provisions namely 130, 136, 157, 212 and 216 under the title
Harbouring. Sections 34 to 38 do not create a substantive
offence, they are interpretative clauses.
When it comes to ascription of criminal liability on accessories for

collateral acts that have been committed in the course of the principal
offence, the principles of vicarious liability for joint criminal enterprise
under different provisions of the Penal Code namely sections 34 to 38, 170
to 120 and 149 of the IPC are applied. The terms ‗joint liability‘ ‗common
liability‘, ‗constructive liability‘ or ―vicarious liability‖ convey more or less
one legal mandate. Constructive liability in criminal law means the liability

of a person for an offence which he has not actually committed. An act
committed by another person will be attributed to the accused if such an
act is done in furtherance of common intention or in prosecution of a
common object. This must not however be confused with vicarious
liability. Vicarious liability is the liability one incurs of the acts of a servant
or an agent during the course of service. Vicarious liability in criminal law
is an exception rather than a rule. But constructive liability in criminal
law is a well recognized principle. The phrase constructive liability means
and connotes the sense that a person is liable in law for the consequences
of an act of another even though he has not done it himself. The word
abettor in the Code corresponds to the word accessory in English law.
Principal Offender
Charge - Specific and simplisitor for
main offence
Participants section 34 to 37 IPC

and Abettor present section 114
IPC
Charge - with aid of relevant
provision for vicarious liability
Members of unlawful assembly

section 149 IPC
Abettors and conspirators under

section 107 to 120B except section
114 and 121A IPC

Accessories under the law are of three kinds:
a) accessories before the fact,

b) accessories at the fact, otherwise known as principals of second
degree and
c) accessories after the fact.
The IPC does not strictly follow this classification, but the grouping of
different provisions of vicarious liability is evident from it.
Chapter II Sections 34 to 38 IPC

The batch of Sections 34 to 38 deals with cases in which two or more
persons are involved in one and the same crime. These sections do not
create a substantive offence but only lay down principles for determination
of the criminal liability of such persons. As a matter of construction, these
sections are interpretative clause included in Chapter II on General
Explanation and must be read into the definitions of substantive offences.
Section 34 – Acts done by several persons in furtherance of common

intention—When a criminal act is done by several persons in furtherance
of the common intention of all, each of such person is liable for that act in
the same manner as if it were done by him alone.
Scope: Quite interestingly, Sections 34, 111 and 113 I.P.C were not
recommended in the draft of the Penal Code prepared by Lord Macaulay
and were inserted subsequently on the recommendation of the committee
headed by Sir Barnes Peacock, the Chief Justice of the Calcutta High
Court. Section 34, IPC does not create a substantive offence. This section
fastens constructive liability if two or more persons sharing the common
intention act in furtherance thereof. The constructive liability under this
section would arise if following two conditions are fulfilled: (a) there must
be a common intention to commit a criminal act; and (b) there must be
participation of all in doing such act in furtherance of that intention.
Common intention need not be anterior in point of time when the crime
was committed and may develop at the spur of the moment when the
crime was committed. Looking at the first postulate pointed out above, the
accused who is to be fastened with liability on the strength of Section 34
IPC should have done some act which has nexus with the offence. Such
act need not be very substantial, it is enough that the act is only for
guarding the scene for facilitating the crime. The act need not necessarily
be overt, even if it is only a covert act it is enough, provided such a covert
act is proved to have been done by the co-accused in furtherance of the
common intention. Even an omission can, in certain circumstances,
amount to an act. This is the purport of Section 34 IPC. So the act
mentioned in Section 34 IPC need not be an overt act, even an illegal
omission to do a certain act in a certain situation can amount to an act,
e.g. a co-accused, standing near the victim face to face saw an armed
assailant nearing the victim from behind with a weapon to inflict a blow.
The co-accused, who could have alerted the victim to move away in order
to escape from the onslaught deliberately refrained from doing so with the
idea that the blow should fall on the victim. Such omission can also be
termed as an act in a given situation. Hence an act, whether overt or
covert, is indispensable to be done by a co-accused in order to be fastened
with the liability under the section. But if no such act is done by a person,
even if he has common intention with the others for the accomplishment
of the crime, Section 34 IPC cannot be invoked for convicting that person.
In other words, the accused who only keeps the common intention in his
mind, but does not do any act at the scene, cannot be convicted with the
aid of Section 34 IPC.
There may be other provisions in the IPC like Section 120-B or

Section 109 which could be invoked to catch such non-participating
accused. Thus, participation in the crime in furtherance of the common
intention is sine qua non for Section 34 IPC.
For appreciating the ambit and scope of Section 34, the preceding
Sections 32 and 33 have always to be kept in mind. Under Section 32 acts
include illegal omissions. Section 33 defines the ―act‖ to mean as well a
series of acts as a single act and the word ―omission‖ denotes as well a
series of omissions as a single omission.
The decision of the Privy Council in Mahbub Shah‘s case AIR 1945 PC 148
is warrant only for the proposition that it is not enough to attract the
provisions of Sec. 34 that there was the same intention on the part of the
several people to commit a particular criminal act or a similar intention,
but it is necessary before the section could come into play that there must
be a pre-arranged plan in pursuance of which the criminal act was done.
Their Lordships do not rule out the possibility of a common intention
developing in the course of events, though it might not have been present
to start with.
―In Crime as well as in life, he also serves who merely stands and
waits‖ – Lord Sumner in Barendra Kumar Ghose Case
Free Fight – State of Bihar vs. Surendra Singh Rautela, 2001 Cr.L.J. 1650
(Jhr.) - In case of free clash between several persons when injuries have
been received by several persons of each group, section 34 IPC cannot be
invoked
Sudden Fight – Normally section 34 IPC would not apply, if the fight
begins suddenly. Each person would be taken as responsible for his
individual act.
Same intention may become common intention.
Q: Can an accused be convicted under section 304 part II with aid of

section 34?

Answer: This question has been answered in Afrahim Seikh vs. State of
WB, AIR 1964 (SC) 1263: The question is whether the second part of S.304
can be made applicable. The second part no doubt speaks of knowledge
and does not refer to intention which has been segregated in the first part.
But knowledge is the knowledge of the likelihood of death. Can it be said
when three or four persons start beating a man with heavy lathis, each
hitting his blow with the common intention of severely beating him and
each possessing the knowledge that death is the likely result of the
beating, that the requirements of S. 304, Part II are not satisfied in the
case of each of them? If it could be said that knowledge of this type was
possible in the case of each one of the appellants, there is no reason why
Section 304, Part II cannot be read with S. 34. The common intention is
with regard to the criminal act i.e. the act of beating. If the result of the
beating is the death of the victim , and if each of the assailants possesses
the knowledge that death is the likely consequence of the criminal act, i.e.,
beating, there is no reason why S. 34 or S. 35 should not be read with the
second part of S. 304 to make each liable individually.
2009 (4) East Cr. C 80 SC Aizaz Vrs. State of U.P.
To constitute common intention it is necessary that intention of each one

of them be known to rest of them and shared by them. The essence is
simultaneously, consensus of the minds of persons participating in the
criminal action to bring about a particular result. The participation need
not in all cases be physical presence. In offence involving physical
violence, normally presence at the scene of offence may be necessary, but
such is not the case in respect of other offence when the offence consists
of diverse acts which may be done at different times and places. The
physical presence at the scene of offence of the offender sought to be
render liable is not one of the conditions of its applicability in every case.
Ingredients :
- In furtherance of common intention
- Participation in the act by two or more persons
- Prior concert of meeting of mind
Mahbub Shah‘s case AIR 1945 PC 148- The section does not say ―the
common intentions of all‖ nor does it say an intention common to all. The
section uses the expression ―in furtherance of common intention of all‖.
This shows the requirement of a pre-concert or a pre-arranged plan.
Virtual presence-
Suresh Vs. State of U.P., 2001(3) SCC 673
It has been held in this case that where one of such persons in
furtherance of common intention, overseeing the actions from a distance
through binoculars, gives instructions on mobile section 34 will apply.
Vicarious Liability of Company

HDFC Securities Ltd Vs State of Maharashtra : AIR 2017(SC) 61
The IPC, does not provide for vicarious liability for any offence alleged to be
committed by a company. If and when a statute contemplates creation of
such a legal fiction, it provides specifically therefor, for example, the NI Act
1881. Indian Penal Code does not contain any provision for attaching
vicarious liability on the part of the Managing Director or the Directors of
the Company when the accused is the Company.
Sharad Kumar Sanghi Vs Sangat Rane (2015)12 SCC 781
When a complainant intends to rope in the Managing Director or any

officer of the Company, it is essential to make requisite allegation to
constitute the vicarious liability.
Maksud Sayed Vs State of Gujarat 2008(5) SCC 668

Where a jurisdiction is exercised on a complaint petition filed in terms of
Section 156(3) or Section 200 of the Code of Criminal Procedure, the
Magistrate is required to apply his mind. Indian Penal Code does not
contain any provision for attaching vicarious liability on the part of the
Managing Director or the Directors of the Company when the accused is
the Company. The learned Magistrate, in this case, failed to pose unto
himself the correct question viz. as to whether the complaint petition, even
if given face value and taken to be correct in its entirety, would lead to the
conclusion that the respondents herein were personally liable for any
offence. The Bank is a body corporate. Vicarious liability of the Managing
Director and Director would arise provided any provision exists in that
behalf in the statute. Statutes indisputably must contain provision fixing
such vicarious liabilities. Even for the said purpose, it is obligatory on the
part of the complainant to make requisite allegations which would attract
the provisions constituting vicarious liability.
Sunil Bharti Mittal vs. C.B.I. 2015AIR(SC) 923
Magistrate can summon any person even if not named in charge sheet
provided there is sufficient material to proceed against him and a prima
facie case is made out.
The principle of ‗alter ego‘ stipulates that criminal intent of the ―alter ego‖
of company would be imputed to the company/corporation; not vice versa.
Other way round runs contrary to the principle of vicarious liability and is
not permissible.
Standard Chartered Bank vs Directorate of Enforcement, (2005) 4 SCC 530--There

is no immunity to the companies from prosecution merely because the
prosecution is in respect of offences for which the punishment prescribed
is mandatory imprisonment. We do not think that the intention of the
legislature is to give complete immunity from prosecution to the corporate

bodies for these grave offences. The offences mentioned under Section
56(1) of the FERA Act, 1973, namely, those under Section 13; clause (a) of
sub-section (1) of Section 18; Section 18-A; clause (a) of sub-section (1) of
Section 19; sub-section (2) of Section 44, for which the minimum sentence
of six months' imprisonment is prescribed, are serious offences and if
committed would have serious financial consequences affecting the
economy of the country. All those offences could be committed by
company or corporate bodies. We do not think that the legislative intent is
not to prosecute the companies for these serious offences, if these offences
involve the amount or value of more than Rs one lakh, and that they could
be prosecuted only when the offences involve an amount or value less than
Rs one lakh. As the company cannot be sentenced to imprisonment, the
court cannot impose that punishment, but when imprisonment and fine is
the prescribed punishment the court can impose the punishment of fine
which could be enforced against the company. Such discretion is to be
read into the section so far as the juristic person is concerned. Of course,
the court cannot exercise the same discretion as regards a natural person.
Then the court would not be passing the sentence in accordance with law.
As regards company, the court can always impose a sentence of fine and
the sentence of imprisonment can be ignored as it is impossible to be
carried out in respect of a company. This appears to be the intention of the
legislature and we find no difficulty in construing the statute in such a
way. We do not think that there is a blanket immunity for any company
from any prosecution for serious offences merely because the prosecution
would ultimately entail a sentence of mandatory imprisonment. The
corporate bodies, such as a firm or company undertake a series of
activities that affect the life, liberty and property of the citizens. Large-
scale financial irregularities are done by various corporations. The
corporate vehicle now occupies such a large portion of the industrial,

commercial and sociological sectors that amenability of the corporation to
a criminal law is essential to have a peaceful society with stable economy.
Section 35 – When such an act is criminal by reason of its being

done with a criminal knowledge or intention –Whenever an act which
is criminal only by reason of its being done with a criminal knowledge or
intention, is done by several persons, each of such persons who joins in
the act with such knowledge or intention is liable for the act in the same
manner as if the act were done by him alone with that knowledge or
intention.
Scope –This section supplements the principle embodied in section 34. It

deals with those cases in which acts are crimes by reason only of a
particular intent or knowledge. It may be noted that the expression ―in
furtherance of common intention of all‖ of Section 34 is absent in Section
35. A number of persons acting with similar intention without any pre-
arranged plan cannot be said to act in furtherance of common intention
and section 34 may not apply, but the applicability of S.35 will not be
excluded in cases. Under section 34, each and every person who performs
even the fractional part of the act in the furtherance of common intention
is deemed to be regarded as the performer of whole of it. But where the
performer has the requisite intention of the individual fractional act,
but not the common intention of the whole then in term of Section 35
he will be liable only for his fraction act alone. Section 35 only speaks of a
number of persons doing an act with certain criminal knowledge or
intention and not under a common intention, so that a pre-concerted
plan will not be necessary to make this section applicable.
Criminal act and Offence
Section 34 does not use the expression ―offence‖ but requires ―criminal
act‖ to be committed in the furtherance of common intention and the

common intention required by the section only relates to criminal act as a
whole and not to the particular offence that is committed in the course of
the criminal act, provided the act falls within the scope of offence. In
section 35, the word 'act' has been used which may not be criminal per se
and the condition for application of this section is that it has been
committed with criminal intention or knowledge.
In Section 34, therefore, intention and knowledge need not to

be proved against each of the accused, but only a criminal act in the
furtherance of common intention. On proof of participation in any manner
in the criminal act committed in the furtherance of common intention, the
accused has to rebut the presumption by giving defence that he had no
intention to commit the offence.
Section 35 deals with participation in action where knowledge or

intention has to be expressly proved. Under Section 35, the prosecution
has to establish criminal intention or knowledge on the part of each of the
accused. Under section 34, the intention or knowledge is presumed. .
Further, under Section 34 a criminal act need to be committed, but

under Section 35 it may be any act, not necessarily criminal , but done
with intention or knowledge.
It has been held by Calcutta High Court in Adam Ali Taluqdar v.

Emperor, AIR 1927 Cal. 324: (1927) 28 Cr. LJ 334 that ―The last section
(S.34) dealt with a case in which several persons were assumed to conspire
with the common intention of committing a crime. This section goes further
and provides that where the element of a particular knowledge or a
particular intention enters in the composition of a crime, all the co-accused
must be shown to possess that particular knowledge or intention in
common, otherwise they cannot be held jointly liable for the crime committed
by any of them.‖

In the Bhopal Gas Tragedy, 1996 SCC (6) SC 129, Keshub Mahindra Vs.
State of M.P. case the Apex court held that mere fact of running of a
plant with proper permission could not be a criminal act and the
mere act of storing hazardous substance or having a defective plant
could not suggest prima facie that the accused had knowledge that
they were likely to cause death of human being. Framing of charge
under section 304(2) read with section 35 IPC, therefore was not
proper and was quashed. By the said judgment dated 13.9.1996 the
Hon'ble Supreme Court quashed the charges framed against accused
Nos. 2 to 5, 7 to 9 and 12 under Sections 304 (Part II), 324, 326 and
429 IPC and directed that the charges of 304A IPC could be made
out against accused Nos. 5, 6, 7, 8 and 9 and under the same
sections with the aid of Section 35 against accused Nos. 2, 3, 4 and
12.
It was observed in this case that this (S.35) provides that where several
persons are concerned in an act which is criminal only by reason of it being
done with a criminal intention or knowledge, each of such persons who join
in the act with such knowledge is liable for act in the same manner as if the
act were done by him alone with that knowledge. The effect of section 35 is
that although an act may be done conjointly by two or more persons, it is
only such of them as do the act with a criminal intention or knowledge that
will be liable and not the others.
So far as the remaining accused Nos. 2; 3, 4 and 12are concerned the

material produced on record clearly indicates at least prima facie that they
being at the helm of affairs have to face this charge for the alleged
negligence and rashness of their subordinates who actually operated the
plant on that fateful night at Bhopal and for that purpose section 35 or the
IPC would also prima facie get attracted against them. A mere look at that
Section shows that if the act alleged against these accused becomes

criminal on account of their sharing common knowledge about the defective
running of plant at Bhopal by the remaining accused who represented them
on spot and who had to carry out their directions from them and who were,
otherwise required to supervise their activity, Section 35 of the IPC could at
least prima facie be invoked against accused 2, 3, 4 and 12 to be read with
Section 304 A, IPC.
Section 36 – Effect caused partly by act and partly by omission –

Wherever the causing of a certain effect, or an attempt to cause that effect,
by an act or an omission is an offence, it is to be understood that the
causing of that effect partly by an act and partly by an omission is the
same.
Illustration – A intentionally causes Z‘s death partly by illegally omitting to

give the Z food and partly by beating Z. A has committed murder.
Scope:
This section is to be read along with section 32 of this Code. In fact, this
section is the corollary of section 32. The legal consequences of an ‗act‘
and of an ‗omission‘ are the same. If an act is committed partly by an act
and partly by an omission, the consequences will be the same. This
section shows that when an offence is the effect partly of an act and partly
of an omission it is only one offence, which is committed and not two. The
word act includes illegal omission. This section unlike Ss 34 and 35
consciously avoids the word intention or knowledge so a judicial
determination on the part of intention or knowledge will not be called for
in such a case.
In Sushil Ansal vs. CBI 2002 CriLJ 1369relating to the Upahar fire tragedy
case, framing of charge under Ss 304 A, 337 and 338 r/w 36 of the IPC
was upheld by the Delhi High Court considering the cumulative omissions
leading to the offence of negligence leading to fire tragedy and consequent

deaths and injuries. In this case the manager of the Cinema hall was
convicted on trial under Sections 304-A/337/338 read with Section 36 IPC
and Section 14 of the Cinematograph Act, 1952.
Section 37- Co-operation by doing one of several acts constituting an

offence – When an offence is committed by means of several acts, whoever
intentionally co-operates in the commission of that offence by doing any
one of those act, either singly or jointly with any other person, commits
that offence.
Scope: Section 37 deals with such offenders who cooperate in the

commission of the offence. Intention in the cooperation of the commission
of the offence is the paramount consideration and is the ingredient of the
offence. Cooperation can be simultaneous or can be in parts i.e. one after
the other. If the cooperation is simultaneous and the offenders are present
at the time of the commission of the offence then all are jointly liable
under section 34 of this Code, but when they are cooperating and are not
physically present at the time the offence is complete, all are liable under
section 37.
In other words, anyone supplying a link in the chain of a series of

acts or commissions is liable for the consequent offence committed as if he
were the author of the whole chain of acts or omissions. The cooperation
required by the section need not be active participation. It may be passive
also.
The difference with section 34 can be better appreciated by one

illustration of conjoint assault by several persons, some giving blows, some
stick blows, some knife injury and some gunshot injury. The acts done by
them cannot be treated as several within the meaning of S.37. They are
doing one criminal act and their different acts being done in the
furtherance of common intention to murder the victim and S.34 will apply

squarely. The reason is that although several persons joined together in
committing the crime and the injuries may have been caused by various
acts, all their acts constitute, from a common sense point of view, only a
single act and not several different acts. The words ‗several acts‘ in this
section also mean ‗several series of acts‘. Section 34 postulates common
intention while this section, intentional co-operation.
Where all concur in effecting the criminal result, each does the act so
far as his own part extends, and, as to the residue, may be regarded as
causing it to be done by means of a guilty agent. All the persons concerned
stand in the mutual relation of principals and agents to each other. If, for
instance, several persons combine to forge an instrument, and each
executes by himself a distinct part of the forgery, and they are not together
when the instrument is completed, they are nevertheless all guilty as
principals.
Practically, when the case involves an offence committed by a series of acts

based on circumstantial evidence, proof of one of the acts done with
requisite intention shall be sufficient to attract Section 37 to make the
offender performing part of the act liable for the offence.
This Section contemplates offence to be committed by several acts. Where

such is not the case and there is only one indivisible act, this section will
have no application. In order to amount to co-operation in the commission
of an offence by doing several acts, all the person doing the acts need not
be present at the same time and place where the offence is completed. This
section also does not require act to be done in furtherance of common
intention. This section will come into play in case of collusive enterprise
where the collaborator has intentionally given effect to the part of the act
but cannot be held liable under any of the foregoing sections of vicarious
liability.

The distinction with section 34 has been succinctly drawn in
Barendar Kumar vs Emperor - ―Section 34 deals with doing of separate
acts, similar or diverse by several persons; if all are done in furtherance of
common intention, each is liable for the result of them as if he had done
himself.......Section 37 provides that when several acts are done to result
together in the commission of an offence, the doing of any one of them with
an intention to co-operate in the offence, which makes the actor liable to
punished for the commission of the offence‖
Interrelation among sections 34 to 37
All these sections create criminal liability of a person for his acts
which may or may not be the principal act constituting the offence, yet the
legal basis and requirements are different in these sections. While section
34 speaks about ―a criminal act done by several persons‖, section 35
talks about ―an act‖ simplicitor, which may not be criminal per se ,
section 36 deals with the effect produced ―by an act or by an omission‖
resulting in an offence, section 37 targets ―cooperation in commission‖
of several acts constituting an offence. Section 36 does not require
intention or knowledge but other sections do require the same.
From the above, it is manifest that where a criminal act is committed

section 34 shall be attracted under the conditions mentioned therein.
Section 35 shall come into play in the absence of common intention and
prior concert of mind, but where the act has been committed with
requisite criminal knowledge or intention. Section 36 shall apply to a
situation where the offence is the outcome of partly an act and partly an
omission. Section 37 aims at cases where an offence is committed by
means of several acts and those who intentionally cooperate by doing any
one of those acts shall be liable for that offence.

Section 38 – Persons concerned in criminal act may be guilty of
different offences – Where several persons are engaged or concerned in
the commission of a criminal act they may be guilty of different offences by
means of that act.
Scope: Section 38 of the IPC is the converse of Section 34 of the IPC and
provides for different punishments for different offences, where several
persons are concerned in the commission of a criminal act, whether such
persons are actuated by one intention or the other. Section 38 applies
where a criminal act is jointly done by several persons and several persons
have different intentions or state of knowledge in doing the joint act. The
Section provides that the responsibility for the completed act may be of
different grade according to the share taken by different accused in the
compilation of the criminal act; the section does not mention anything
about the intention, common or otherwise or knowledge.
The next question arises about the criminal liability of the

persons who did not actually participate in the crime, but was the
member of the unlawful assembly and an offence is committed in the
prosecution of the common object?
Section 149 is an answer to such a situation and in such an

eventuality, while the principal offender will be charged with the main
offence, others will be charged with the main offence r/w 149 IPC .
Section 149--Every member of unlawful assembly guilty of offence

committed in prosecution of common object.—If an offence is
committed by any member of an unlawful assembly in prosecution of the
common object of that assembly, or such as the members of that assembly
knew to be likely to be committed in prosecution of that object, every
person who, at the time of the committing of that offence, is a member of
the same assembly, is guilty of that offence.

Scope: This section does not define offence but merely provides that in
certain circumstances persons may be convicted of an offence under the
Indian Penal Code. ―What has to be proved against a person who is alleged
to be a member of an unlawful assembly is that he was one of the person
constituting the assembly and he entertained alongwith the other
members of the assembly the common object as defined in Section 141.
The word ‗object‘ means the purpose or design and, in order to make it
‗common‘, it must be shared by all.―Common object‖ is different from a
―common intention‖ as it does not require a prior concert and a common
meeting of minds before the attack. It is enough if each has the same
object in view and their number is five or more and that they act as an
assembly to achieve that object. The ―common object‖ of an assembly is to
be ascertained from the acts and language of the members composing it,
and from a consideration of all the surrounding circumstances.
Ingredient of the offence:
1. The accused must be a member of the unlawful assembly.

2. An offence must be committed by another member of the assembly.
3. The offence must have been committed in the prosecution of common
object of that assembly or ;
The members of the assembly must have known that such offence
was likely to be committed in prosecution of the common object of
the assembly
4. Prior formation of an unlawful assembly with a common object is not
necessary as the common object can develop eo instanti.
Palakom Abdul Rahim vs. State of Kerala, 2019(4) SCC795
The accused persons in all 11 persons were initially charge-sheeted

including the appellants for the offence under Sections 143,148, 323,
324,325 and Section 302 IPC read with Section 149 of the IPC. There
was a separate charge against Accused 1 and 3 for the offence under
Section 302 read with Section 34 IPC and yet alternate charge under
Section 302 against accused no.3.
1. Trial Court convicted A1 and A3 along with other accused persons

under Sections 143,148, 323, 324,r/w S149 and for Section 302 r/w
149 IPC.
2. Kerala HC held all the three accused guilty under S302/34 IPC
3. The Hon‘ble Apex Court: When an accused is held guilty under law
for offence under Section 302 r/w 34, in law means that the accused
is liable for the act which caused the death of the deceased in the
same manner as if it was done by him alone.
It goes without saying that it would depend on facts of each case as
to whether Section 34 or Section 149 or both the provision are
attracted. The non-applicability of Section 149 is no bar in convicting
the accused under Section 302 r/w 34 of the IPC, provided there is
evidence which discloses commission of offence in furtherance of
common intention and this Court had an occasion to consider the
application of Section 34 and Section 149 as follows in Birbal
Choudhary vs State of Bihar:― At the same time, it is also clarified
that it would depend of facts of each case as to whether Section 34 or
Section 149 of both the provisions are attracted. It is also held that it
would depend on the facts of each case as whether Section 34 or
Section 149 IPC or both provisions are attracted.‖
Mala Singh & Others Vs. State of Haryana, 2019 (2) JLJR SC 183
IPC Sections 302/323/506/149/148 – 11 accused persons were

tried, however, 8 co-accused were acquitted by High Court under section
302/149 by giving them benefit of doubt but the High Court convicted
appellants under section 302/34 though the initial trial was on the basis
of charge under section 302/149 – Prosecution failed to adduce any
evidence against three appellants to prove their common intention of the

murder of the deceased. Evidence led in support of charge under section
149 was not sufficient to prove the charge of common intention of
appellants under section 34.
In Pandurang Chandrakant Mhatre & Ors. vs. State of Maharashtra, (2009)

10 SCC 773, the Hon'ble Apex Court cautioned that where a large number
of persons are alleged to have participated in the crime and they are
sought to be brought to book with the aid of Section 149 IPC, only those
accused, whose presence was clearly established and an overt act by any
one of them was proved, should be convicted by taking into consideration
a particular fact situation.
Muthuramalingam & Ors vs State Represented by Inspector of Police,

Criminal Appeal No. 231-233 of 2009 SC
An overt act is not always an inflexible requirement of rule of law to

establish culpability of an unlawful assembly. The crucial question is
whether the assembly entertained a common object and whether the
accused was one of the members of such an assembly by intentionally
joining it or by continuing in it being aware of the facts which rendered the
assembly unlawful. Without unlawful object no assembly becomes an
unlawful assembly.
Question: Whether persons less than five can be tried and convicted
under Section 149 of the I.P.C?
1963 AIR 174 SC, Mohan Singh vs State of Punjab (5J) answers the above
question.
It would thus be noticed that one of the essential ingredients of section

149 is that the offence must have been committed by any member of an
unlawful assembly, and s. 141 makes it clear that it is only where five or
more persons constituted an assembly that an unlawful assembly is born,
provided of course; the other requirements of the said section as to the
common object of the persons composing that assembly are satisfied. In
other words, it is an essential condition of an unlawful assembly that its
membership must be five or more. ------- We have already observed that
the point raised by the appellants has to be dealt with on the assumption
that only five persons were named in the charge as persons composing the
unlawful assembly and evidence led in the course of the trial is confined
only to the said five persons. If that be so, as soon as two of the five named
persons are acquitted, the assembly must be deemed to have been
composed of only three persons and that clearly cannot be regarded as an
unlawful assembly.
In dealing with the, question as to the applicability of s. 149 in such cases

it is necessary to bear in mind the several categories of cases which come
before the Criminal courts for their decision. If five or more persons are
named in the charge as composing an unlawful assembly and evidence
adduced by the prosecution proves that charge against all of them, that is
a very where s. 149 can be invoked. It is, however, not necessary that five
or more persons must be convicted before a charge under s. 149 can be
successfully brought home to any members of the unlawful assembly. It
may be that less than five persons may be charged and convicted under s.
302/149 if the charge is that the persons before the court, along with
others named constituted an unlawful assembly; the other persons so
named may not be available for trial along with their companions for the
reason, for instance, that they have absconded. In such a case, the fact
that less than five persons are before the court does not make section 149
inapplicable for the simple reason that both the charge and the evidence
seek to prove that the persons before the court and others number more
than five in all and as Such, they together constitute an unlawful
assembly. Therefore, in order to bring home a charge under s. 149 it is not
necessary that five or more persons must necessarily be brought before
the court and convicted. Similarly, less than five persons may be charged
under s. 149 if the prosecution case is that the persons before the court
and others numbering in all more than five composed an unlawful
assembly, these others being persons not identified and so not named. In
such a case, if evidence shows that the persons before the court along with
unidentified and un-named assailants or members composed an unlawful
assembly, those before the court, can be convicted under section 149
though the unnamed. and unidentified persons are not traced and
charged. Cases may also arise where in the charge, the prosecution names
five or more persons and alleges that they constituted an unlawful
assembly. In such cases, if both the charge and the evidence are confined
to the persons named in the charge and out of the persons so named two
or more are acquitted leaving, before the court less than five persons to be
tried, then s. 149 cannot be invoked.Even in such cases, it is possible that
though the charge names five or more persons is composing an unlawful
assembly, evidence may nevertheless show that the unlawful assembly
consisted of some other persons as well who were not identified and so not
named. In such cases, either the trial court or even the High court in
appeal may be able to come to the conclusion that the acquittal of some of
the persons named in the charge and tried will not necessarily displace the
charge under section 149 because along with the two or three persons
convicted where others who composed the unlawful assembly but who
have not been identified and so have not been named. In such cases the
acquittal of one or more persons named in the chargedoes not affect the
validity of the charge under section 149 because-on the evidence the court
of facts is able to reach the conclusion that the persons composing the
unlawful assembly nevertheless were five or more than five. It is true that
in the last category of cases, the court will have to be very careful in
reaching the said conclusion. But there is no legal bar which prevents the
court from reaching such a conclusion. The failure to refer in the charge to
other members of the unlawful assembly un-named and unidentified may

conceivably raise the point as to whether prejudice would be caused to the
persons before the court by reason of the fact that the charge did not
indicate that un-named persons also were members of the unlawful
assembly. But apart from the question of such prejudice which may have
to be carefully considered, there is no legal bar preventing the court of
facts from holding that though the charge specified only five or more
persons, the unlawful assembly in fact consisted of other persons who
were not named and identified. That appears to be the true legal position
in respect of the several categories of cases which may fall to be tried when
a charge under section 149 is framed.
Section 34 and 149
The classical distinction between the two provisions is as follows:
(1) Section 34 does not by itself create any specific offence, whereas
section 149 does so.
(2) Some active participation, especially in crime involving physical
violence, is necessary under section 34, but section 149 does not
require it and the liability arises by reason of mere membership of
the unlawful assembly with a common object and there may be no
active participation at all in preparation and commission of the
crime.
(3) Section 34 speaks of common intention, but section 149
contemplates common object which is undoubtedly wider in its scope
and amplitude than intention.
Section 34 does not fix number of persons who must share the common
intention, but section 149 requires that there must be atleast five persons
who must have the same common object.
Chapter V (Sections 107 to 120 B)
Abetment – Sections 107 to 118

The word abettor in the Code corresponds to the word accessory in
English law.
Section 107-Abetment of a thing.—A person abets the doing of a thing,

who—
First.—Instigates any person to do that thing; or
Secondly.—Engages with one or more other person or persons in any

conspiracy for the doing of that thing, if an act or illegal omission takes
place in pursuance of that conspiracy, and in order to the doing of that
thing; or
Thirdly.—Intentionally aids, by any act or illegal omission, the doing of

that thing.
Explanation 1.—A person who, by willful misrepresentation, or by

willful concealment of a material fact which he is bound to disclose,
voluntarily causes or procures, or attempts to cause or procure, a thing to
be done, is said to instigate the doing of that thing.
Illustration.—A, a public officer, is authorised by a warrant from a Court

of Justice to apprehend Z. B, knowing that fact and also that C is not Z,
willfully represents to A that C is Z, and thereby intentionally causes A to
apprehend C. Here B abets by instigation the apprehension of C.
Explanation 2.—Whoever, either prior to or at the time of the commission

of an act, does anything in order to facilitate the commission of that act,
and thereby facilitates the commission thereof, is said to aid the doing of
that act.
Scope:
In order to constitute the offence of abetment there must be guilty

intention or knowledge. All three forms of abetment stated in the section

involve guilty intention or knowledge on the part of the abettor. If the
person who lends his support does not know or does not have reason to
believe that the act which he is aiding or supporting was itself a criminal
act, it cannot be said that he intentionally aids or facilitate the commission
of an offence and that he is an abettor.
The word instigate denotes incitement or urging to do some drastic or

inadvisable action or to stimulate or incite.
Law does not require instigation to be in a particular form or that it

should only be in words. The instigation may be by conduct. Whether
there was instigation or not is a question to be decided on the facts of each
case. It is not necessary in law for the prosecution to prove that the actual
operative cause in the mind of the person abetting was instigation and
nothing else, so long as there was instigation and the offence has been
committed or the offence would have been committed if the person
committing the act had the same knowledge and intention as the abettor.
It is only if this condition is fulfilled that a person can be guilty of
abetment by instigation. Further the act abetted should be committed in
consequence of the abetment or in pursuance of the conspiracy as
provided in the Explanation to Section 109.
Abetment by Conspiracy
A conspiracy to do a thing is a combination of two or more persons with a

common design of doing a specific thing. Under Sections 120 A and 120
B, bare agreement between two or more persons constitutes an offence
under the circumstances mentioned therein. Thus an agreement to
commit an offence is by itself an offence under Section 120 A, though
nothing more is done in furtherance of the conspiracy.
The offence of abetment created under the second clause of Section

107 requires that there must be something more than mere conspiracy.

There must be some act or illegal omission in pursuance of that
conspiracy.
Another point of distinction is that abetment by conspiracy under

107 and 108 always connotes a conspiracy to commit an offence. But,
there can be a criminal conspiracy under section 120A even though the
agreement between the conspirators is not to commit an offence but only
to do an illegal act or a legal act by illegal means.
But where the agreement is not to commit an offence in order to

constitute an offence but say a legal act by illegal means under Section
120 A, it is necessary under its proviso that some act is done by one or
more of the parties to such agreement in pursuance thereof. But where the
agreement is to commit an offence, the offence of criminal conspiracy will
be complete by the very fact of the agreement even though nothing further
is done under the agreement. Further, under section 121A, the mere
conspiracy to wage war against the Government of India without
anything further, has been made an offence.
The Law Commission of India, in 1971, opined that it was strongly of

the view that there is neither theoretical justification nor practical need for
punishing agreements to commit petty offences or non-criminal illegal
acts. In line with this, the Commission recommended that the offence of
criminal conspiracy should be limited to agreements to commit offences
which are punishable with at least imprisonment for a term of two years
upwards. This recommendation has largely been accepted under Section
196 Cr.P.C wherein sanction is required for prosecution for offences under
Section 120 B punishable for a term of two years or less.
Aid by Act
The offence of abetment by aid must be distinguished from the

commission of the offence itself. To prove the charge of abetment by aid, it

is necessary to prove that the accused facilitated the commission of the
act, with knowledge of the offence.
It has been held that howsoever insignificant the aid may be, it would
be abetment if it is given with the requisite intention or knowledge. The
test is not to determine whether the offence would or would not have been
committed if the aid had not been given but whether the act was
committed with the aid of abettor in question.
S.108 Abettor
A person abets an offence, who abets either the commission of an offence,

or the commission of an act which would be an offence, if committed by a
person capable by law of committing an offence with the same intention or
knowledge as that of the abettor.
Explanation 1.--The abetment of the illegal omission of an act may

amount to an offence although the abettor may not himself be bound to do
that act.
Explanation 2.--To constitute the offence of abetment it is not necessary

that the act abetted should be committed, or that the effect requisite to
constitute the offence should be caused.
Illustration
(a) A instigates B to murder C. B refuses to do so. A is guilty of abetting B

to commit murder.
(b) A instigates B to murder D. B in pursuance of the instigation stabs D.

D recovers from the wound. A is guilty of instigating B to commit murder.
Explanation 3.--It is not necessary that the person abetted should be

capable by law of committing an offence, or that he should have the same

guilty intention or knowledge as that of the abettor, or any guilty intention
or knowledge.
Illustrations
(a) A, with a guilty intention, abets a child or a lunatic to commit an act

which would be an offence, if committed by a person capable by law of
committing an offence, and having the same intention as A. Here A,
whether the act be committed or not, is guilty of abetting an offence.
(b) A, with the intention of murdering Z, instigates B, a child under seven

years of age, to do an act which causes Z's death. B, in consequence of the
abetment, does the act in the absence of A and thereby causes Z's death.
Here, though B was not capable by law of committing an offence. A is
liable to be punished in the same manner as if B had been capable by law
of committing an offence, and had committed murder, and he is therefore
subject to the punishment of death.
(c) A instigates B to set fire to a dwelling-house, B, in consequence of the

unsoundness of his mind, being incapable of knowing the nature of the
act, or that he is doing what is wrong or contrary to law, sets fire to the
house in consequence of A's instigation. B has committed no offence, but
A is guilty of abetting the offence of setting fire to a dwelling-house, and is
liable to the punishment, provided for that offence.
(d) A, intending to cause a theft to be committed, instigates B to take

property belonging to Z out of Z's possession. A induces B to believe that
the property belongs to A. B takes the property out of Z's possession, in
good faith, believing it to be A's property. B, acting under this
misconception, does not take dishonestly, and therefore does not commit
theft. But A is guilty of abetting theft, and is liable to the same
punishment as if B had committed theft.

Explanation 4.--The abetment of an offence being an offence, the
abetment of such an abetment is also as offence.
Illustration
A instigates B to instigate C to murder Z. B accordingly instigates C to

murder Z, and C commits that offence in consequence of B's instigation. B
is liable to be punished for his offence with the punishment for murder;
and, as A instigated B to commit me offence, A is also liable to the same
punishment.
Explanation 5.--It is not necessary to the commission of the offence of

abetment by conspiracy that the abettor should concert the offence with
the person who commits it. It is sufficient if he engages in the conspiracy
in pursuance of which the offence is committed.
Illustration
A concerts with B a plan for poisoning Z. It is agreed that A shall

administer the poison. B then explains the plan to C mentioning that a
third person is to administer the poison, but without mentioning A's name.
C agrees to procure the poison, and procures and delivers it to B for the
purpose of its being used in the manner explained. A administers the
poison; Z dies in consequence. Here, though A and C have not conspired
together, yet C has been engaged in the conspiracy in pursuance of which
Z has been murdered. C has therefore committed the offence defined in
this section and is liable to the punishment for murder.
Scope : Section107 specifies when a person can be said to abet an ―act‖ or

as the section says doing of a thing . This section clarifies when abetment
of an act will be abetment of an offence. If there is no abetment at all as
defined in Section 107 there is no question of any abetment of an offence.
There is no question of abetment after the offence is completed.

S.109 Punishment of abetment if the act abetted is committed in
consequence, and where no express provision is made for its
punishment
Whoever abets any offence shall, if the act abated is committed in

consequence of the abetment, and no express provision is made by this
Code for the punishment of such abetment, be punished with the
punishment provided for the offence.
Explanation.--An act or offence is said to be committed in consequence of

abetment, when it is committed in consequence of the instigation, or in
pursuance of the conspiracy, or with the aid which constitutes the
abetment.
Scope: Generally where the principal offence fails, the charge of abetment
shall also fail. But this is not a universal rule and it admits of exception
depending on the facts and circumstances of the case.
Gallu Sah vs. State of Bihar, AIR 1958 SC 813 is a case where the principal
offender was acquitted of the charge but the abettor was held guilty on
evidences available on record.
6. We now turn to the second point urged on behalf of the appellant. It must
be emphasizes here that the learned Judge was satisfied that (1) the
appellant gave the order to set fire to the hut and (2) that the hut was
actually set fire to by one member or another of the unlawful assembly, even
though the unlawful assembly, as a whole did not have any common object
of setting fire to the hut of Mst. Rasmani. The point taken by learned counsel
of the appellant is that when the learned Judge did not accept the evidence
of the witnesses that Budi set fire to the hut there was really no evidence to
show that the person who set fire to the hut of Mst. Rasmani did so in
consequence of the order given by Gallu Sah. The learned Advocate points

out that one of the essential ingredients of the offence is that the act abetted
must be committed in consequence of the abetment........
It seems to us, on the findings given in the case, that the person who set
fire to the hut of Mst. Rasmani must be one of the persons who were
members of the unlawful assembly and he must have done so in
consequence of the order of the present appellant. It is, we think, too unreal
to hold that the person who set fire to the hut of Mst. Rasmani did so
irrespective, or independently, of the order given by the present appellant.
Such a finding, in our opinion, would be unreal and completely divorced
from the facts of the case and it is necessary to add that no such finding
was given either by the learned Assistant Sessions Judge of the High Court.
As we read the findings of the learned Judge, it seems clear to us that he
found that the person who set fire to the hut of Mst. Rasmani did so in
consequence of the abetment, namely, the instigation of the appellant.
1994 SCC(Cri) 1150, Manbir Singh vs. State of UP
When it was established that the co-accused had the gun and the belt of
cartridge and during altercation between the deceased and the principal
accused who took the gun, and loaded it, co-accused had exhorted the
principal accused to shoot the deceased, then the instigation is clear and
clearly amounts to abetment that resulted in the shooting of deceased by
principal accused hence the co-accused is liable to be convicted under
Section 302 /109 of the IPC.
Bank of India Vs. Yeturi Maredi Shankar Rao, AIR 1987 SC 821,accused
was Accounts Clerk in the bank who obtained the passbook of the victim
for posting upto date entries and never returned the same. After about a
month Rs. 6000/- was withdrawn from her account by a withdrawal form.

During investigation forgery of withdrawal was proved. The first appellate
court convicted the accused under section 467 /109 and section 471. The
Hon‘ble HC acquitted him under section 467/109 and consequently set
aside his conviction also under section 471. Hon‘ble Apex Court admitted
that the forgery of signatures could not be connected with the accused,
but based on circumstances he was convicted under sections 467/109
and 471.
Note: The main take away from this case is that charge of forgery is
difficult to prove if the main accused has got it done by an anonymous
accomplice, because section 467 is directed against the person who has
forged a document. To prove this part, objective finding regarding the
person having committed forgery may be required on the basis of some
cogent evidence like signature verification, depending upon the facts
circumstances of the case. Section 467 read with Section 109 becomes
applicable in such case and evidence of any act of instigation, conspiracy
or aid in the commission shall be sufficient to bring home the charge
against the accused. Therefore, caution need to be exercised in such cases
while framing charge.
S.110 Punishment of abetment if person abetted does act with

different intention from that of abettor
Whoever abets the commission of an offence shall, if the person abetted

does the act with a different intention or knowledge from that of the
abettor, be punished with the punishment provided for the offence which
would have been committed if the act had been done with the intention or
knowledge of the abettor and with no other.
Scope: This section applies where the abetted person does the very
act abetted, but with a different intention from that of the abettor. If
the act if done with the intention or knowledge of the abetted person

constitutes one offence, and if done with the intention or knowledge of the
abettor, another offence, the abettor would be liable only for the latter
offence. Thus, where the abettor abets the act of simple beating but the
accused person give such a beating as results in death and the offence
under Section 304/34 is made out against the accused persons, still the
abettor shall be liable only for the offence of simple hurt. For satisfying the
requirement of S.114 or S.109 the meeting of mind is necessary.
Matadin Vs State of Maharashtra AIR 1999 SC 138
In this case the charge was framed under Ss 302/34of the IPC against the
two accused. On the exhortation of the appellant Matadin the other co-
accused inflicted the fatal knife cut injury.
Held: The courts below have not found that the language which Matadin
used exhorting his fellows was used in such a tone as to exhort them to
kill Ashok or to cause grievous hurt to him by using dangerous weapons
or means. When the words ―maro sale ko‖ are used it could mean ―to beat‖
or even ―to kill‖ a person. Though the witnesses have stated that these
words were used by Matadin in abusive way but from that it could not be
said that he exhorted his fellows to kill Ashok. We, therefore, set aside the
conviction and sentence of Matadin under Section 302 read with Section
34 IPC and instead convict him under Section 324/110 IPC.
Section 111 – When an act is abetted and a different act is done, the
abettor is liable for the act done, in the same manner, and to the same
extent, as if he had directly abetted it.
Provided the act done was probable consequenceof the abetment, and
was committed under the influence of the instigation, or with the aid or in
pursuance of the conspiracy which constituted the abetment.
Scope: Section 109 and 110 provide for cases where the act done is the
very act abetted while this section provides for cases in which the act done
is different from the act abetted. The abettor is liable for such different act
committed provided the conditions laid down in the section are satisfied.
This section and Sections 112 and 113 make it abundantly clear that if a
person abets another in the commission of an offence and the principal
goes further and does something more which has a different result from
that intended by the abettor and makes the offence an aggravated one, the
abettor is liable for the consequence of the acts of his principal. A probable
consequence of an act is one which is likely or which can be reasonably
expected to follow from such an act. An unusual, unexpected consequence
cannot be described as a probable one.
S.112 Abettor when liable to cumulative punishment for act abetted

and for act done
If the act for which the abettor is liable under the last preceding section is
committed in addition to the act abetted, and constitutes a distinct
offence, the abettor is liable to punishment for each of the offences.
Illustration
A instigates B to resist by force a distress made by a public servant. B, in

consequence, resists that distress. In offering the resistance, B voluntarily
causes grievous hurt to the officer executing the distress. As B has
committed both the offence of resisting the distress, and the offence of
voluntarily causing grievous hurt. B is liable to punishment for both these
offences; and, if A knew that B was likely voluntarily to cause grievous
hurt in resisting the distress A will also be liable to punishment for each of
the offences.
Scope: As seen in S.111, an abettor is liable for an act done by the person,
abetted, though it is different from the one abetted, provided it fulfils the
conditions laid down therein.

Section 113 – Liability of an abettor for an effect caused by the acct
abetted different from that intended by the abettor--When an act is
abetted with the intention on the part of the abettor of causing a particular
effect, and an act for which the abettor is liable in consequence of the
abetment causes a different effect from that intended by the abettor, the
abettor is liable for the effect caused, in the same manner, and to the same
extent, as if he had abetted the act which the intention of causing that
effect, provided they knew that the act abetted was likely to cause that
effect.
Scope: What is immediately apparent is the different criterion of

liability for a ―different act‖ (Ss111&112) being done and for a ―different
effect‖ ( S.113) being caused. ―Different act‖ liability is to be on the
probable consequences and ―different effect‖ liability is to be
governed by a different rule – that which the abettor actually knew to be
likely to happen. The plain connotation of ―different act‖ liability being
which is objectively foreseeable as being likely to happen. So we have
section 34 – common intention, section 111 – probable consequence,
section 113 – knowledge of likelihood and section 149 – common
object.
Whenever the Court is confronted with the issue of group or gang

crime, where so called collateral crime is committed, the court concerned
need to take a serious view, since such crimes are not committed without
any prior plan and therefore the foreseeability or likelihood of the probable
consequence can be presumed in such cases depending on the evidence
on record. Thus, where in case of robbery, murder, injury or such offence
is committed in case of participation they can be presumed to be in
furtherance of common intention and in case where the accused has
abetted the offence he can be charged under Section 111 and 113 of the
IPC.

Section 114 Abettor present when the offence is committed--
Whenever any person, who is absent would be liable to be punished as an

abettor, is present when the act or offence for which he would be
punishable in consequence of the abetment is committed, he shall be
deemed to have committed such act or offence.
Scope: Where the abetment is completed prior to the commission of the

offence and the abettor is also present at the commission of the offence,
the abettor is deemed to have committed the offence himself. In the
absence of the proof of the two ingredients namely--
1. abetment prior to the commission of the offences and

2. abettor's presence at the time of such commission,
this section will not apply. S. 114 deals with constructive liability. Where
the act abetted is not an offence this section will have no application.
AIR 1981 SC 1417, State of Karanatka vs Hema Reddy

Where accused, A, a mortgagee abetted the execution in his favour of a
forged sale deed in respect of the mortgaged property by another accused
B, B will be liable to be convicted under Section 467 r/w 114 IPC
AIR 2005 SC 1271, Mukti Prasad Rai vs State of Bihar
Where the two appellants armed with lathis entered into the house and
instigated other to beat the deceased and his son, it would be safe and
appropriate to convict the two appellants under S.324 r/w 114 of the IPC
― Coming to the role ascribed to appellant Nos. 1 and 2, the evidence on
record does not support the prosecution case that these two appellants
entertained the idea of killing Kartik Rai and his son and with that idea in
mind they exhorted the other accused to kill one or both of them. The
allegations in regard to exhortation are omnibus in nature. PW-3 and PW-6,
who are the main eye-witnesses did not depose to the fact that the call was
given by these two appellants to kill Kartik Rai and/or his son. The
exhortation was to beat them up, though PW-6 had stated in the First
Information Report that the appellant Nos. 1 and 2 and Shakti Prasad Rai
(since died) exhorted others to kill them. That allegation was not reiterated
by PW-6 at the time of deposition in the Court. However, the fact that
appellants Nos. 1 and 2 were also armed with lathis when they trespassed
into the house of the deceased is a positive indicator that they did not enter
the house as mere onlookers. Therefore, accepting the version of PW-3 and
PW-6 to the effect that appellants Nos. 1 and 2 instigated others to beat up,
it would be safe and appropriate to convict them namely Mukti Prasad Rai
and Parmeshwar Prasad Rai under Section 324 read with 114 IPC and
sentence them to imprisonment for a period of one year and a fine of Rs.
500/- each. In default of payment of fine, they shall suffer simple
imprisonment for a further period of two months. Accordingly, we do so.‖
1991 CriLJ 2138 Khem Karan Vs State of UP
In a case of murder where one of the accused instigates others to beat

deceased he can be convicted only under S.114 but not under Ss 302 IPC
Criminal Conspiracy
Section.120(A) Definition of criminal conspiracy
When two or more persons agree to do, or cause to be done,--
(1) an illegal act, or

(2) an act which is not illegal by illegal means, such an agreement is
designated a criminal conspiracy:

Provided that no agreement except an agreement to commit an offence
shall amount to a criminal conspiracyunless some act besides the
agreement is done by one or more parties to such agreement in
pursuance thereof.
Explanation.--It is immaterial whether the illegal act is the ultimate object

of such agreement, or is merely incidental to that object.
120B. Punishment of criminal conspiracy--
(1) Whoever is a party to a criminal conspiracy to commit an offence

punishable with death, imprisonment for life or rigorous
imprisonment for a term of two years or upwards, shall, where no
express provision is made in this Code for the punishment of such a
conspiracy, be punished in the same manner as if he had abetted such
offence.
(2) Whoever is a party to a criminal conspiracy other than a criminal

conspiracy to commit an offence punishable as aforesaid shall be
punished with imprisonment of either description for a term not
exceeding six months, or with fine or with both.
Scope: The essence of conspiracy is an agreement to do an illegal act or a

legal act by illegal means. A person may be convicted of conspiracy as
soon as such a conspiracy is hatched before any act is carried into effect.
The offence is complete as soon as the parties have agreed to their
unlawful purpose, although nothing has been settled as to the means or
devices to be employed for affecting it. In order to prove a criminal
conspiracy which is punishable under section 120B of the IPC, there must
be direct or circumstantial evidence to show that there was agreement
between two or more person to commit the offense.
Section 10 of the Evidence Act makes a departure from the conventional

law of criminal jurisprudence, under which, the acts of the co-accused is
normally not regarded as a evidence against the other. U/s 10 of the
Evidence Act anything said done or written by an accused can be used
against another if there is evidence of conspiracy.
Firozuddin Basheeruddin vs. State of Kerala, AIR 2001 SC 3488
Like most crimes conspiracy requires an act actus reus and

accompanying mental state (mens rea). The agreement constitutes the act
and intention to achieve unlawful objective of the agreement constitutes the
required mental state. In the phase of modern organized crime, complex
business arrangement in restraint of trade, and subversive political activity,
conspiracy law has witnessed extension in many forms.
Conspiracy criminalizes an agreement to commit a crime. All

conspirators are liable for crimes committed in furtherance of conspiracy by
any member of the group – as regards admissibility of evidence strict
standards are not necessary in as much any declaration made by a
conspirator in furtherance of and during pendency of a conspiracy though
hearsay, is admissible against each co-conspirator—To put it differently, the
law punishes conduct that threatens to produce the harm, as well as
conduct that has actually produced it. Contrary to the usual rule that an
attempt to commit a crime merges with the completed offense, conspirators
may be tried and punished for both the conspiracy and the completed crime.
The rationale of conspiracy is that the required objective manifestation of
disposition to criminality is provided by the act of agreement. Conspiracy is
a clandestine activity. Persons generally do not form illegal covenants
openly. In the interests of security, a person may carry out his part of a
conspiracy without even being informed of the identity of his co-conspirators.
Since an agreement of this kind can rarely be shown by direct proof, it must
be inferred from circumstantial evidence of co-operation between the
accused. What people do is, of course, evidence of what lies in their minds.
To convict a person of conspiracy, the prosecution must show that he agreed
with others that together they would accomplish the unlawful object of the
conspiracy. Another major problem which arises in connection with the
requirement of an agreement is that of determining the scope of a conspiracy
- who are the parties and what are their objectives. The determination is
critical, since it defines the potential liability of each accused. The law has
developed several different models with which to approach the question of
scope. One such model is that of a chain, where each party performs a role
that aids succeeding parties in accomplishing the criminal objectives of the
conspiracy. No matter how diverse the goals of a large criminal organisation,
there is but one objective: to promote the furtherance of the enterprise. So far
as the mental state is concerned, two elements required by conspiracy are
the intent to agree and the intent to promote the unlawful objective of the
conspiracy. It is the intention to promote a crime that lends conspiracy its
criminal cast. Conspiracy is not only a substantive crime. It also serves as a
basis for holding one person liable for the crimes of others in cases where
application of the usual doctrines of complicity would not render that person
liable. Thus, one who enters into a conspiratorial relationship is liable for
every reasonably foreseeable crime committed by every other member of the
conspiracy in furtherance of its objectives, whether or not he knew of the
crimes or aided in their commission. The rationale is that criminal acts done
in furtherance of a conspiracy may be sufficiently dependent upon the
encouragement and support of the group as a whole to warrant treating
each member as a causal agent to each act. Under this view, which of the
conspirators committed the substantive offence would be less significant in
determining the defendant‘s liability than the fact that the crime was
performed as a part of a larger division of labour to which the accused had
also contributed his efforts. Regarding admissibility of evidence, loosened
standards prevail in a conspiracy trial. Contrary to the usual rule, in
conspiracy prosecutions any declaration by one conspirator, made in
furtherance of a conspiracy and during its pendency, is admissible against

each co-conspirator. Despite the unreliability of hearsay evidence, it is
admissible in conspiracy prosecutions. Explaining this rule, Judge Hand,
said: "Such declarations are admitted upon no doctrine of the law of
evidence, but of the substantive law of crime. When men enter into an
agreement for an unlawful end, they become ad hoc agents for one another,
and have made ‗a partnership in crime‘. What one does pursuant to their
common purpose, all do, and as declarations may be such acts, they are
competent against all. [Van Riper v. United States 13 F.2d 961, 967 (2d Cir.
1926)]."
Thus conspirators are liable on an agency theory for statements of co-

conspirators, just as they are for the overt acts and crimes committed by
their confreres. (Paras 23, 24, 25, 26 and 27)
In para 32 of the judgment, the learned trial Judge formulated the points
arising for determination as follows :
1. What was the cause of death of Hamza ?
2. Are the accused responsible for the death of Hamza?
3. Was there any criminal conspiracy to cause the death of Hamza, as

alleged by the prosecution?
4. Are the accused guilty of the offence u/s 201 IPC?
6. Are the accused guilty of the offence u/s 143 and 148 of the IPC?
7. Are the accused guilty of the offence u/s 511 r/w Section 302 IPC?
9. Are the accused guilty of the offence u/s 25 and 27 of the Arms Act?
10. What, if any, are the offences proved against each of the accused?

11. Sentence."
Coleridge, J., while summing up the case to jury in Regina v. Murphy

(173 Eng. Reports 508) pertinently states:
I am bound to tell you, that although the common design is the root of
the charge, it is not necessary to prove that these two parties came together
and actually agreed in terms to have this common design and to pursue it
by common means, and so to carry it into execution. This is not necessary,
because in many cases of the most clearly established conspiracies there
are no means of proving any such thing, and neither law nor common sense
requires that it should be proved. If you find that these two persons pursued
by their acts the same object, often by the same means, one performing one
part of an act, so as to complete it, with a view to the attainment of the
object which they were pursuing, you will be at liberty to draw the
conclusion that they have been engaged in a conspiracy to effect that object.
The question you have to ask yourselves is, "Had they this common design,
and did they pursue it by these common means- the design being
unlawful?"
Gerald Orchard of University of Canterbury, New Zealand explains the

limited nature of this proposition :
Although it is not in doubt that the offence requires some physical

manifestation of agreement, it is important to note the limited nature of this
proposition. The law does not require that the act of agreement take any
particular form and the fact of agreement may be communicated by words
or conduct. Thus, it has been said that it is unnecessary to prove that the
parties "actually came together and agreed in terms" to pursue the unlawful
object: there need never have been an express verbal agreement, it being
sufficient that there was "a tacit understanding between conspirators as to
what should be done".

I share this opinion, but hasten to add that the relative acts or conduct of the
parties must be conscientious and clear to mark their concurrence as to
what should be done. The concurrence cannot be inferred by a group if
irrelevant facts artfully arranged so as to give an appearance of coherence.
The innocuous, innocent or inadvertent events and incidents should not
enter the judicial verdict. We must thus be strictly on our guard."
AIR 1999 SC 2640, State vs Nalini (Rajiv Gandhi assasination case)
It is rarely possible to establish a conspiracy by direct evidence. Usually,

both the existence of the conspiracy and its objects have to be inferred
from the circumstances and the conduct of the accused. Conspirators
may, for example, be enrolled in a chain A enrolling B, B enrolling C, and
so on; and all will be members of a single conspiracy if they so intend and
agree, even though each member knows only the person who enrolled him
and the person whom he enrolls. There may be a kind of umbrella-spoke
enrollment, where a single person at the center doing the enrolling and all
the other members being unknown to each other, though they know that
there are to be other members. These are theories and in practice it may
be difficult to tell whether the conspiracy in a particular case falls into
which category. It may, however, even overlap. But then there has to be
present mutual interest. Persons may be members of single conspiracy
even though each is ignorant of the identity of many others who may have
diverse role to play. It is not a part of the crime of conspiracy that all the
conspirators need to agree to play the same or an active role. When two or
more persons agree to commit a crime of conspiracy, then regardless of
making or considering any plans for its commission, and despite the fact
that no step is taken by any such person to carry out their common
purpose, a crime is committed by each and every one who joins in the
agreement. There has thus to be two conspirators and there may be more
than that. To prove the charge of conspiracy it is not necessary that

intended crime was committed or not. If committed it may further help
prosecution to prove the charge of conspiracy. It is not necessary that all
conspirators should agree to the common purpose at the same time. They
may join with other conspirators at any time before the consummation of
the intended objective, and all are equally responsible. What part each
conspirator is to play may not be known to everyone or the fact as to when
a conspirator joined the conspiracy and when he left. A charge of
conspiracy may prejudice the accused because it is forced them into a
joint trial and the court may consider the entire mass of evidence against
every accused. Prosecution has to produce evidence not only to show that
each of the accused has knowledge of object of conspiracy but also of the
agreement. In the charge of conspiracy court has to guard itself against
the danger of unfairness to the accused. Introduction of evidence against
some may result in the conviction of all, which is to be avoided. By means
of evidence in conspiracy, which is otherwise inadmissible in the trial of
any other substantive offence prosecution tries to implicate the accused
not only in the conspiracy itself but also in the substantive crime of the
alleged conspirators. There is always difficulty in tracing the precise
contribution of each member of the conspiracy but then there has to be
cogent and convincing evidence against each one of the accused charged
with the offence of conspiracy. As observed by Judge Learned Hand that"
this distinction is important today when many prosecutors seek to sweep
within the dragnet of conspiracy all those who have been associated in any
degree whatever with the main offenders". As stated above it is the
unlawful agreement and not its accomplishment, which is the gist or
essence of the crime of conspiracy. Offence of criminal conspiracy is
complete even though there is no agreement as to the means by which the
purpose is to be accomplished. It is the unlawful agreement, which is the
gravamen of the crime of conspiracy. The unlawful agreement which
amounts to a conspiracy need not be formal or express, but may be

inherent in and inferred from the circumstances, especially declarations,
acts, and conduct of the conspirators. The agreement need not be entered
into by all the parties to it at the same time, but may be reached by
successive actions evidencing their joining of the conspiracy. It has been
said that a criminal conspiracy is a partnership in crime, and that there is
in each conspiracy a joint or mutual agency for the prosecution of a
common plan. Thus, if two or more persons enter into a conspiracy, any
act done by any of them pursuant to the agreement is, in contemplation of
law, the act of each of them and they are jointly responsible therefor. This
means that everything said, written or done by any of the conspirators in
execution or furtherance of the common purpose is deemed to have been
said, done, or written by each of them. And this joint responsibility
extends not only to what is done by any of the conspirators pursuant to
the original agreement but also to collateral acts incident to and growing
out of the original purpose. A conspirator is not responsible, however, for
acts done by a co-conspirator after termination of the conspiracy. The
joinder of a conspiracy by a new member does not create a new conspiracy
nor does it change the status of the other conspirators and the mere fact
that conspirators individually or in
Harpal Singh vs State of Punjab, 2017(1) JBCJ 37 SC
Qua a charge of conspiracy, it is not necessary that all conspirators should

know each and every detail of the plot so long as they are conspirators in
the main object thereof. It is also not necessary that all of them should
participate from inception of stratagem till end, determinative factor being
unity of object or purpose and their participation at different stages. Such
is encompassing sweep of culpability of an offence of conspiracy, if proved,
even from established attendant circumstances.
Md. Hussain Umar Kochra case 1969 (3) SCC 429 -

In conspiracy, agreement is the gist of the offence and the common design
and common intention in furtherance of the scheme is necessary. Each
conspirator plays his separate part in one integrated and united effort to
achieve the common purpose. It was announced that conspiracy may
develop in successive stages and new techniques may be invented and new
means may be devised, and a general conspiracy may be a sum of separate
conspiracies having a similar general purpose, the essential elements
being collaboration, connivance, jointness in severalty and coordination.
In Kehar Singh and Ors. vs. The State (Delhi Administration) [AIR 1988 SC
1883 at p. 1954], the Hon‘ble Supreme Court observed:
Generally, a conspiracy is hatched in secrecy and it may be difficult to

adduce direct evidence of the same. The prosecution will often rely on
evidence of acts of various parties to infer that they were done in reference
to their common intention. The prosecution will also more often rely upon
circumstantial evidence. The conspiracy can be undoubtedly proved by
such evidence direct or circumstantial. But the court must enquire
whether the two persons are independently pursuing the same end or they
have come together to the pursuit of the unlawful object. The former does
not render them conspirators, but the latter does. It is, however, essential
that the offence of conspiracy required some kind of physical
manifestation of agreement. The express agreement, however, need not be
proved. Nor actual meeting of the two persons is necessary. Nor it is
necessary to prove the actual words of communication. The evidence as to
transmission of thoughts sharing the unlawful design may be sufficient.
Conspiracy can be proved by circumstances and other materials.(See:
State of Bihar v. Paramhans [1986 Pat LJR 688]). To establish a charge of
conspiracy knowledge about indulgence in either an illegal act or a legal
act by illegal means is necessary. In some cases, intent of unlawful use
being made of the goods or services in question may be inferred from the

knowledge itself. This apart, the prosecution has not to establish that a
particular unlawful use was intended, so long as the goods or service in
question could not be put to any lawful use. Finally, when the ultimate
offence consists of a chain of actions, it would not be necessary for the
prosecution to establish, to bring home the charge of conspiracy, that each
of the conspirators had the knowledge of what the collaborator would do
so, so long as it is known that the collaborator would put the goods or
service to an unlawful use. (See: State of Maharashtra v. Som Nath Thapa
[JT 1996 (4) SC 615])
Charge with substantive offence and conviction for constructive

offence and vice versa--
1. Permissibility of such conviction is predicated on the principle of

notice to the accused so that he is not prejudiced in his defense. If
the content or the body of the charge contains the facts regarding the
element of the offence, mere absence of section should not prejudice
in his defense. Thus, if all the accused persons are charged under
Section 302/149 of the IPC, but the charge states that it was A who
fired at the deceased at the relevant time and place. In such fact
situation A can be convicted u/s 302 IPC simplicitor in the absence
of a charge simplicitor even if the charge under Section 149 fails
against others.
2. Where a person is charged with substantive offence, it is known to
him that he has been charged to have committed the offence, but
when an accused is charged constructively to have committed an
offence by the said section 149 or Section 34 of the IPC, it makes him
understand that he is the accused because somebody in furtherance
of the common intention or for the prosecution of the common object
has committed the substantive offence.

3. The burden to prove prejudice is on the accused-- Mohan vs State,
1971 Cri LJ 1010 (Del)
4. There is no hard and fast rule laid down as to when the prejudice
has been caused to the accused. It is for the Court in each case to
decide whether the defect in the charge has caused prejudice to the
accused.
5. Omission to state common object of unlawful assembly does not
vitiate conviction based on those charges unless accused has been
prejudiced in his defence because of the general nature of charge
under Section 149.
6. The accused is entitled to know with certainty and accuracy exact
nature of the charge against him, and unless he has knowledge, his
defence will be prejudiced.
The question arises – whether a person charged for having
committed an offence constructively with the help of Section 149 or
Section 34 IPC can be convicted for having committed the
substantive offence for which he had not been charged?
The main authorities on this point are : AIR 1958 SC 672, B.N.Srikanthia
vs Mysore State and William Slaney vs State of MP, AIR 1956 SC 116
The answer to the above question is in the affirmative. The object of the
Code is designed to further the ends of justice and not to frustrate them by
the introduction of endless technicalities. The object of the Code is to
ensure that an accused person gets a full and fair trial along certain well
establish and well understood lines that accord with our notions of natural
justice. If he is tried by competent court, if he is told and clearly
understands the nature of the offence for which he is being tried, if the
case against him is fully and fairly explained to him and he is afforded a
full and fair opportunity of defending himself, then, provided there is
substantial compliance within outward forms of the law, mere mistakes in
procedure, mere in consequential errors and omissions in the trial are

regarded venal by the Code and the trial is not vitiated. Unless the
accused can show substantial prejudice. That, broadly speaking, is the
basic principal on which the Code is based. Put at highest, all that
appellant can urge is that charge in alternative ought to have been framed
Sections 34,114 &149 of the IPC provide for criminal liability viewed from
different angles as regards actual participants, accessories and man
actuated by a common object or a common intention; and the charge is
rolled up one involving the direct liability and the constructive liability
without specifying who are directly liable and who are sought to be made
constructively liable. In such a situation, the absence of a charge under
one or other of the various head of criminal liablity for the offence cannot
be said to be fatal by itself.
Question : Can a person charged for the principal offence be

convicted for the abetment?
No. When only the principal offence has been charged, and no charge of
the abetment framed and accused has no notice of the facts constituting
abetment, conviction on a charge of abetment is improper. Prasana Kumar
vs Ananda Chandra, AIR 1970 Ori 10.
Sohan Lal vs. State of Punjab, 2003 Cri.L.J. 4569 SC – Accused charged
under section 304B cannot be convicted under section 109 because
abatement is a substantive offence and absence of charge caused
prejudice to the accused.
Question: Can a person charged with abetment, be convicted for the

principal offence?
Yes, Gujarat High Court in N.C. Shah vs. State of Gujarat, 1972 Cri LJ
200 (Guj) relied on State vs. Ruplal Koeri, AIR 1953 Pat 394, and held that
an accused can be convicted of the substantive offence if he is charged

only with abetment of the offence, but not when he has been prejudiced in
his defence of a case based on substantive charge.
Question Whether a conviction can be passed regarding the

principal offence are r/w section 34 where the charge is framed u/s
149?
State of Bihar vs Biswanath Rai, 1997 CrLJ 4426 SC – A charge u/s

149 is no impediment to conviction by application of 34 if the evidence
discloses the commission of the offence in furtherance in common
intention.
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JUDICIAL ACADEMY JHARKHAND

e-HANDBOOK OF CRIMINAL TRIAL

A Hand Book On Criminal Trial PAGE | 2

Institution of A Criminal Case

Chargesheet Final Form Sent to P.S.

Accused fails Accused

A Hand Book On Criminal Trial PAGE | 3

Criminal law can be set into motion in the following ways :

 Jurisdiction with respect to taking cognizance of an offence.

Jurisdiction with respect to taking cognizance of an offence.

Chapter XIII Code of Criminal Procedure, consisting of Sections 177

A Hand Book On Criminal Trial PAGE | 4

FIR Can be registered at the place of the offence - As far as the

A Hand Book On Criminal Trial PAGE | 5

Sec. 177. Ordinary place of inquiry and trial.—

Every offence shall ordinarily be inquired into and tried by a Court

According to Sec.177, the place where offence is committed is the ordinary

Sec. 178. Place of inquiry or trial.—

(a) When it is uncertain in which of several local areas an offence was

(c) where an offence is a continuing one, and continues to be

(d) where it consists of several acts done in different local areas, it

A Hand Book On Criminal Trial PAGE | 6

In the recent case of Rhea Chakraborty Versus State of Bihar and

―30. Having regard to the law enunciated by this Court as noted

If the crime is committed in one local area but when the

Sec. 179. Offence triable where act is done or consequence ensues.—

Sec. 180. Place of trial where act is an offence by reason of relation to

Exceptional circumstances such as dacoity, kidnapping, theft,

Sec.181. Place of trial in case of certain offences.—

(1) Any offence of being a thug, or murder committed by a thug, of

A Hand Book On Criminal Trial PAGE | 8

(3) Any offence of theft, extortion or robbery may be inquired into or

(4) Any offence of criminal misappropriation or of criminal breach of

Offences committed through letters are dealt with under Sec.182 of

Sec.182 of Cr.P.C: Offences committed by letters, etc.

(1) Any offence which includes cheating may, if the deception is

GO TO THE TABLE OF CONTENT

A Hand Book On Criminal Trial PAGE | 10

Procedure for Dealing with Complaint beyond the

―24. In the light of our above findings, pending the provision of a

A Hand Book On Criminal Trial PAGE | 11

(v) a separate register under the nomenclature ‗Complaints Returned

Date of presentation of Complaint;

Date of taking on file;

Date of issue of process, if any, to the Accused;

Record of proceedings in the case;

Date of return of the Complaint; and

Reason for return.

Rules of practice for destruction of records shall duly be

―The complaint be returned to Respondent 2 who, if she so chooses,

A Hand Book On Criminal Trial PAGE | 12

FIR is instituted when police receives information regarding

A Hand Book On Criminal Trial PAGE | 13

97.1. (a) It is the first step to ―access to justice‖ for a victim.

97.3. (c) It also facilitates swift investigation and sometimes even

97.4. (d) It leads to less manipulation in criminal cases and lessens

A Hand Book On Criminal Trial PAGE | 14

A Hand Book On Criminal Trial PAGE | 15