Understanding General Laws

(IPC, CrPC & IEA)

developed by

UTTUM KUMUR SHURMU, IFS

Email: uttam628@yahoo.co.in

LUW

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Uuthor’s Preface

Law is the main instrument that is handed over by the Government to all the Civil

Servants for discharging their duties. That is why it is essential that every Civil Servant

not only know what Law is but also learn how Law may be effectively applied as means of

development, progress and social change.

With that object in view, this compendium on Law has been prepared for self

study and better understanding of General Laws of India specially Indian Penal Code

1860, Criminal Procedure Code 1973 and Indian Evidence Act 1872 along with basic

understanding of Jurisprudence. In conjunction with bare Acts, wherever necessary, this

compendium will provide near complete understanding of the subject to its readers.

In this compendium, I have tried to explain the relevant and allied provisions of

general laws to make the work more self-explanatory and clear.

I look forward to using of this compendium by Civil Servants in a very meaningful

and highly purposeful collaborations, in promotion of legal learning and effective

discharge of their duties.

It may not be out of place to mention here that my experience as faculty of Law,

IGNFA and learning from the field while working as DFO in MP, have contributed

immensely in this writing. Still the compendium may have its shortcomings and I shall be

grateful to the reader if any errors or omissions are brought to my notice and any

suggestions for its improvement will always be most welcome.

My special thanks are due to my wife Deepika who at every step supported me to

carry through the venture. Both sons, though very demanding whenever I am at home,

cooperated me to the fullest extent in my writing.

Dated: April, 2020.

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Ubout the Uuthor Uttam Kumar Sharma is an IFS Officer of 1999 Batch from Madhya

Pradesh Cadre. He is B. Tech. in mechanical Engineering from I.I.T.

Bombay. He has worked in different capacities in MP forest

department and has served continuously for 9 years as territorial DFO

in three important forest divisions of MP. Since October 2013 he has

been in IGNFA Dehradun engaged in training of IFS probationers as

the faculty for Law, teaching General Laws (Indian Penal Code,

Criminal Procedure Code and Indian Evidence Act 1872) in addition to

forest Acts (Indian Forest Act 1927, Wildlife Protection Act 1972,

Forest Conservation Act 1980 and Forest Right Act 2006) to IFS

probationers. He is also lead faculty for conducting Working Plan

Exercise and Mensuration Exercise of IFS probationers in the

Academy.

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Contents Chapter Topic Page no. no. 1. History of Legal system in India 6

2. Jurisprudence – An Introduction 12

3. Natural Justice 14

4. Classification of Law 17

5. Legal System Prevalent in the World 21

6. Concept of Crime- An Introduction 25

7. Elements of Crime and Criminal Liability 33

8. Indian Penal Code – An Introduction 37

9. Punishment under IPC 40

10. Administration of Justice 44

11. Criminal Procedure Code 1973- An Introduction 49

12. Classification of Offences in CrPC – for Procedural Purpose 52 13. Process of Investigation under CrPC 1973 56

14. Condition Requisite for Initiation of Proceeding (Chapter XIV CrPC) 66 15. Framing of Charge 68

16. Limit to punishment of offence made up of several offences 71 17. Process of Arrest under CrPC 75

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18. Search and SeiWure 83

19. Right of Private Defence of Person and Property 89

20. Crime against Women under Indian Laws 93

21. Reformative and Compensation Provision in CrPC 99

22. The Indian Evidence Act 1872 104

23. How to set Criminal Law in Motion? 118

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Chapter 1 History of Legal system in India

The legal system of a country at a given time is not the creation of one man

or of one day but is the cumulative fruit of the endeavor, experience, thoughtful planning and patient labour of a large number of people through generations.

India has a golden history of over 5000 years. Therefore a comprehensive study of Indian legal history comprises of the historical process of development of legal institutions in Hindu and Muslim periods. 1. Pre-Mughal Era

The various sources of law relied upon by the kings at that time were shrutis, smritis, puranas, dharmasutras, dharmashastras, etc. The Arthashastra and Manusmriti were influential treatises in India, texts that were considered authoritative legal guidance. According to Brihaspati Smiriti, there was a hierarchy of courts in Uncient India beginning with the family Courts and ending with the King. The lowest was the family arbitrator. The next higher court was that of the judge; the next of the Chief Justice who was called Praadivivaka, or adhyaksha; and at the top was the King’s court.

2. Mughal Era

During this era, the administration of justice was regarded by the Muslim kings as a religious duty. Sources of Islamic Law are divided into Primary and Secondary Sources. Quran is the first and the most important source of Islamic law. It is believed to be the direct words of God as revealed to Muhammad through angel Gabriel in Mecca and Medina. Muslim jurists agree that the Quran in its entirety is not a legal code. Sunna is the traditions or known practices of Prophet Muhammad, recorded in the Hadith literature. Quran justifies the use of Sunna as a source of law. IIma and Qiyas are the secondary sources of Islamic law. There are 72 Muslim sects in all with the Shia sect being the most popular in India.

Under the Moghal Empire the unit of judicial administration was QaWi. Every provincial capital had its QaWi and at the head of the judicial administration was the Supreme QaWi of the empire (QaWi-ul-quWat).

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Moreover, every town and every village large enough to be classed as a Qasba had its own QaWi. During this period, the personal laws of the non-Muslims were applied in civil matters, but the criminal law was the Islamic in nature. Whenever there was a conflict between Islamic Law and sacred laws of the Hindus, the former prevailed.

3. Medieval Period (1600-1726) WithitheicomingiofitheiBritishitoiIndia,itheilegalisystemiofiIndiaichangedi

fromiwhatiitiwasiinitheiMughaliperiodiwhereimainlyitheiIslamicilawiwasi

followed.i Thei legali systemi currentlyi ini Indiai bearsi ai veryi closei

resemblancei toi whati thei Britishi lefti usi with.i Asi peri thei needsi ofi thei

changingi timesichangesiandiamendmentsiwereimade,ibuti theiprocedurei

whichiisifollowedinotihasiitsirootsiinitheieraiofiBritish-India. The charter of 1600 established the English East India Company in India. as per the charter of 1661 the English and the Indians residing under the Company came under its jurisdiction. From the period ranging from 1661 till 1726, laws of equity and justice in conformity with the laws in England were followed. There was no codified law. In Calcutta, the judicial system was based on the Company’s authority as a zamindar. This continued till the charter of 1726 was passed.

4. Charter of 1726 Charter of 1726 granted special powers to the Company as was requested by it. Under this Charter the Mayor’s Court was established. This superseded all the other courts of Bombay, Madras and Calcutta. This was a court of record. The Laws under this Charter were also applied in conformity with the laws in England on the principles of equity and justice. Appeals from this court could be filed in the court of Governor and Council and further in the court of King-in-Council in England. Requisite independence was assured to the Mayor’s Courts but this along with their strict adherence to English laws became the cause of some difficulties like hostility between the Mayor and the Governor and Council, and non clarity regarding jurisdiction of the Mayor’s Court in respect of the natives. The judiciary did not possess expert staff for administering justice and the

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executive did not have respect for the judiciary. 5. Charter of 1753

Charter of 1753 was passed in order to remove the difficulties of the preceding Charter.This charter put the Mayor under the subjection of the Governor and Council in order to avoid disputes between the two. Suits and actions between the natives were expressly excluded from the jurisdiction of the Mayor’s Court unless both parties submitted them to its determination, and a Court of Requests was created to hear small civil cases. The defects of this Charter can be summariWed by mentioning the executive ridden judiciary, failure of impartial judgment, judiciary suffering from lack of legal knowledge, limitation of the jurisdiction of the Courts to Presidency Towns, and no representation of Indian Judges

6. Regulating oct of 1773

This Act provided for the establishment of a Supreme Court at Calcutta. The court, also a court of record with the power to punish for its contempt, had civil, equity, criminal, ecclesiastical and admiralty jurisdiction. Appeals against decisions of this Court and through the Court could be filed in all civil and criminal cases respectively before the King-in-Council. The establishment of this Court was a welcome as it was the first British Court in India consisting of lawyers, its jurisdiction was so wide that it covered all kinds of legal wrongs and that since all British subject came under its jurisdiction it ensured rule of law.

In 1801 and 1824 Supreme Courts were established in Madras and Bombay respectively. The Constitutional powers, functions, limitations and jurisdiction of these courts were the same as that of the Supreme Court at Calcutta.

i A parallel system of judiciary was running in the mofussil areas. The Company attained the Diwani of Bengal, Bihar, and Orissa in 1765. As per the plan of 1772 under Warren Hastings, the Courts of Original Jurisdiction were Mofussil

FauIdari Adalat, the court of criminal jurisdiction; Mofussil Diwani Adalat, the court of civil jurisdiction and Small Cause Adalat. Under the Appellate Courts we

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had Sadar Nizami Adalat, the criminal court of appeals; Sadar Diwani Adalat, civil court of appeals.

The Governor –General Lord Cornwallis (1786-1793) introduced changes in the judicial system in 1787, 1790, and 1793. He had thoroughly reorganiWed the civil and criminal judicial system in India in Bengal, Bihar, and Orissa. He for the first time introduced the principle of administration according to law. As per year 1793 plan, the Supreme Court was divested of all its powers except for the power of appeal and the Collector was to be given civil as well as revenue cases. Executive was estranged from the judiciary in its entirety in criminal cases. He introduced professional lawyers or vakeels in the courts to appear on behalf of the parties to contest their case in order to increase efficiency.

Cornwallis did everything on structural and procedural side but he could not do much to reform the substantive law, particularly the criminal law which was based on Muslim law and suffered from a number of defects.

7. Modern period- PRE-INDEPENDENCE:

a. Charter of 1833

Under this Charter, the Governor–General of Bengal, nominated as Governor-General of India. The charter created a single Omni competent legislative body in India instead of 3 co-extensive legislative powers existing in the country. The Charter proposed a uniform All India Legislation and thereby created a Legislative Council. The laws made by the Council were applicable on all persons and courts. It had Lord Macaulay appointed as its first Law Member whose powers were increased by the Charter of 1853. The creation of new council at Calcutta caused the centraliWation and concentration of power depriving the Councils of Bombay and Madras of their law-making powers.

An important step towards fulfilling the goal of securing a uniform and simple system of law in India through the process of integration of the general system of codes was taken by the Charter Act of 1833. The commissions’ most noteworthy contribution was the Penal Code prepared under the guidance of the Macaulay. The proposals of the first

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two Commissions resulted in the codification of the Code for civil and criminal cases in the year 1857 and 1861 respectively and the enactment of the Penal Code in 1860. The Limitation Act and the High Courts Act were passed in 1855 and 1861 respectively. The Third Law Commission proved to be the most successful of all the Commissions. It drafted several codes in its seven reports, the important ones being Indian Succession Act, Contract Act (1872), Evidence Act, the new Limitation Act and the Divorce Act 1869.

The year 1861 also constituted a conspicuous landmark in the process of development of legal and judicial institutions in India. It was during this year that the steps were taken to establish High Courts at Calcutta, Madras and Bombay. These High Courts were not only better instruments of justice than the preceding courts, but also represented the amalgamation of the hitherto existing two disparate and distinct judicial systems, the Company’s Courts in the Provinces of Bengal, Bombay Madras, and the three Supreme Courts (established by the Royal Charter) in the Presidency town. The High Court enjoyed the same power over all persons and estates. It had ordinary original, appellate and extraordinary original jurisdiction in civil cases whereas extraordinary and appellant jurisdiction in criminal cases. Acting as the court of appeal, reference or revision in Criminal cases, the courts applied the Indian Penal Code. The High Courts were empowered to make rules and orders for regulating all its proceedings in civil matters. By the subsequent charters High Courts were formed in Allahabad (1875), Patna (1912), Lahore (1865) etc.

b. Government of India Uct, 1935

A Federal Court set up in Delhi was established under this Act. The Court was to consist of Chief Justice and not more that six judges. This Court had original, appellate, and advisory jurisdiction. The Court had exclusive original jurisdiction in all disputed between the federation and the units or between the units inter se. An appeal could go to the Privy Council without leave, against the Judgements of the Federal Court given

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in its original jurisdiction and in any other matter with the leave of the Privy Council or of the Federal Court.

8. POST INDEPENDENCE: The Indian Constituent Assembly passed the Abolition of Privy Council Jurisdiction Act in 1949 to abolish the jurisdiction of the Privy Council in respect of appeals from India and also to provide for pending appeals. The present day judicial system in India consists of a Supreme Court at its top, High Courts in the middle and the Subordinate Courts at the bottom. On January 26, 1950, the Federal Court gave way to the Supreme Court (inaugurated on January 28, 1950) under the new Constitution and thus began an exciting new era in Indian Legal History.

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Chapter 2 JURISPRUDENCE – An Introduction

1. Jurisprudence- its literal meaning:

The word Jurisprudence is derived from the Latin word “Jurisprudentia”. Literally, it means knowledge of law. “Juris” denoting Law and “Prudentia” knowledge. Jurisprudence is not only study of general theoretical questions about the nature of laws and legal system but also about the relationship of law to Justice and morality and about the social nature of law.

2. What is Law?

! Jurisprudence deals with the principle of law, then the question that naturally arises is: WHAT IS LAW?

! It is difficult to define law. The jurists have attempted to define it with the result that each definition has emphasiWed a particular aspect of law. The most accepted definition of law was formulated by Jurist Jhon Salmond (1862-1924).

! Salmond’s definition of law: o The law may be defined as the body of principle recogniWed and

applied by the State in the administration of Justice. ! Analysis of Salmond’s definition:

i. Law consists of principles /rules. ii. Law pre supposes State.

iii. Those rules which are recogniWed and applied by the State, may be called law.

iv. The purpose of law is to secure justice. Law is the means whereas justice is the end.

According to modern notion, law is an instrument of social change and social engineering. Law goes on changing as per the need and aspirations of society. Law should be dynamic and cannot be static. As the maxim goes, “Law must be stable but it should not stand still”.

! Marxian view point of law: i. “Law is the superstructure on an economic foundation”.

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ii. “Law is an instrument used by the economic rulers to keep the masses in subjection”.

iii. “On the emergence of classless society, domination will cease, inequalities will vanish and with them the State and the law will wither away”.

3. Justice – meaning ?

! If purpose of law is to secure justice, then WHAT IS JUSTICE?

! Justice consist in giving to every man or woman what he/she entitled to get under the law.

! Justice is what appears just to a reasonable man or woman. 4. Nature and Purpose of Law:

Views of the Social scientists, Political Philosophers and Jurists on these two vital aspects of law have not been uniform and unanimous. And to ascertain true nature of law one should go to court and not to legislature. The various perceptions and conceptions, are indicated below for proper appreciation:

1. Nature of law may be: ! To Secure Justice ! To Resolve Conflicts ! To Social Control ! A Tool of Social Engineering ! An Agent of Social Change ! A Command of Sovereign

2. Purpose of law: ! To maintain order ! To protect rights ! To bring about peaceful change

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Chapter 3 Natural justice

1. Natural Justice –what does it mean?

i. The term “Natural Justice” may be equated with “Procedural fairness” or “fair play in action”.

ii. It is concerned with procedure and it seeks to ensure that the procedure adopted are just, fair and reasonable.

iii. It can also be equated with “Due Process”. iv. As has been observed by champions of personal liberty: “ The history of

liberty has largely been the history of the observance of procedural safeguards”.

v. Natural Justice is rooted in the natural sense of what is right and wrong. It is to observe procedural fairness and propriety in holding or conducting Trial, Inquiry or Investigation or other types of proceedings or processes.

2. The object of Natural Justice:

The object of natural justice is to secure justice by ensuring procedural fairness. In other words, it is to prevent miscarriage of justice.

3. The two fundamental principle of natural justice:

There are two fundamental principles of Natural Justice. They are: i. Uudi Ulteram Partem

ii. Nemo Judex in Causa Sua

i. Uudi Ulteram Partem (hear the other side also) • Both parties must be heard or no man should be condemned

unheard. • Each party must have reasonable notice of the case and reasonable

opportunity of presenting his own case. • Copy of each document relied upon by the court must made

available to other party.

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ii. Nemo Judex in Causa Sua (no man shall be a judge in his own

cause or matter)

• Person occupying the seat of judgment must act impartially and with sense of justice.

• He should not have any interest or bias in favour of any party. • He should have no interest in subject matter in dispute before him.

4. Subsidiary principles of Natural Justice:

i. “Justice should not only be done but manifestly and undoubtedly be seen to be done”.

• Persons administrating justice should conduct themselves in such a way so that they may inspire confidence of contending parties and raise their image above all shadow of suspicion.

ii. Orders should be speaking orders. • Decision makers should give reasons in support of their

decisions. iii. One who decide must also hear.

• This may not be possible in Institutional decision making in Government departments because of realities of field and complexities of present day administration.

5. Upplicability of Principle of Natural Justice: The principles of Natural Justice is applicable on:

a. All judicial proceedings b. All quasi judicial proceedings c. All administrative proceedings

The Supreme Court in Meneka Gandhi vs. Union of India(AIR 1978 SC 597) declared:

“ the law must, therefore, now be taken to be well settled that even in an administrative proceeding, which involves civil consequences, the doctrine of Natural Justice must be held to be applicable”.

6. General Rules about Natural justice: • Principles of Natural Justice are neither codified nor embodied.

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• Principal of Natural Justice are flexible and amenable to situational modifications.

• It should not be supposed that all principles of Natural Justice should have universal application and should be indiscriminately projected over each and every case. There may be cases of exceptional nature to which the principles of Natural Justice need not be extended.

Exceptions where principles of Natural Justice need not be extended:

• Emergency • Confidentiality • Common good

“Unnatural expansion of Natural Justice may result in failure of Justice”.

7. What happens when Natural Justice is violated:

• Though the courts have not taken a consistent and uniform stand on this but the favourable view is that if an action or decision is taken in breach of Natural Justice, that becomes either void or voidable.

NOTE: The terms “void” or “voidable” belong to the law of contract. " When we say that a transaction is void, we mean that it has no legal

force or effect. It is a nullity from the very inception. Example: A promises to pay Rs one Lakh to B if she kills C.

Here the object is illegal and hence such an agreement can not be enforced and is Void.

" A voidable transaction implies that it is void until it is annulled. A voidable agreement is one which is enforceable at law at the option of one or more of the parties, but not at the option of the other. Thus an agreement induced by coercion, undue influence, fraud, or misrepresentation is Voidable. Example: If A’s consent to an agreement is obtained by fraud, A has

the option to treat the agreement valid and binding or not. B who obtained the consent by fraud does not have that option. Such an agreement is Voidable.

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Chapter 4 Classification of Law

Classification of Law is difficult. For our purposes, following classification of law is proposed:

I. Substantive law and Procedural (Udjective) law II. General law and special law

III. Civil law and criminal law

I. Substantive law and Procedural (Udjective) law

! Substantive law: It is a law which defines offences and prescribes punishments for these offences. It creates rights and duties of a person and prescribe liabilities for violation of those.

Example: Indian Penal Code 1860, Dowry Prohibition Act, Indian Contract Act, Motor Vehicle Act etc.

! Procedural (Udjective) law: It is that branch of law which deals with procedure, pleading and proof by which substantive law is applied in practice. Example: Criminal Procedure Code, Indian Evidence Act, Civil Procedure Code etc.

Forest laws like Indian Forest Act 1927, Wild-life Protection Act 1972, Forest Conservation Act 1980 etc. define certain acts or omission as offences and prescribe punishment for them. Hence forest laws are having properties of both Substantive as well as Procedural (adjective) law.

II. General law and special law

! General law: It is a law which regulate the conduct of General public in their day to day life. Public generally are aware about these laws. General law applies to whole of the country uniformly. Courts take automatic notice of these laws. Example: IPC, CrPC, Indian Evidence Act, Civil Procedure Code etc.

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! Special law: Laws dealing with special subjects are called special laws. Section 41 of Indian Penal Code 1860 defines Special law as “a law applicable to a particular subject”. Special laws create fresh offences that is, law making punishable more things which are not already punishable under penal code. Generally courts do not recogniWe special laws as a matter of course and hence the rules of special law are to be brought to the notice of the court.

As we know that forest laws are Special laws having properties of both Substantive as well as adjective law. Following sections of General law IPC and Criminal Procedure Code 1973 deal with special law and provide them a stature in Law:

• Section (5) IPC – Certain law not to be affected by this Act

• CrPC – Section 4 (2)

• All offences under any other law shall be investigated, inquired into, tried and otherwise dealt with according to CrPC provisions but subject to any enactment regulating the manner or place.

– Section (5) • Nothing contained in this code shall, in the

absence of a specific provision to the contrary, affect any special or local law

" Following guidelines regarding interpretation of General law & Special law have been given by Supreme Court in its Judgment Maya Mathew

vs. State of Kerala, 2010: i. A person cannot be punished under both the penal code and a

special law for the same offence and ordinarily the sentence should be under the Special Act

ii. When a provision of law regulates a particular subject and a subsequent law contains a provision regulating the same subject, there is no presumption that the later law repeals the earlier law.

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iii. When two provision of law- one being general law and other being special law govern the matter, the court should endeavor to apply a harmonious construction of the said provisions.

iv. If the repugnancy or inconsistency subsists in spite of an effort to read them harmoniously, prior special law is not presumed to be repealed by the late general law. Prior special law will continue to apply and prevail in spite of subsequent general law.

v. Where a later Special law is repugnant to or inconsistent with an earlier general law, the later special law will prevail over the earlier general law.

" Following are two more important judgment of Supreme Court which deal with status of Special law:

1. When there is no specific punishment provided under special law then the punishment prescribed under the general law i.e. IPC comes into operation.

- Ejas Uhmed vs. State of Jharkhand, UIR 2010 SC 2. Special law defined in Sec 41 IPC cannot be taken to mean only

enactment which creates fresh offences not made punishable under IPC.

- Kushalya Rani vs. Gopal Singh, UIR 1964 SC

III. Civil law and criminal law

" Civil law: It is a law which enforces the rights of individual over property like easements, payment of rent, debts etc. Civil wrong injure private individual or a specific body of individuals and hence proceedings under Civil law are proceedings between two private individuals. Civil law does not have any punishments. However, in an action of torts, damages may be awarded by way of punishment. Also if somebody disobeys injunction of court, he may be punished with imprisonment. Broadly speaking civil justice is remedial.

Example: Indian Contract Act 1872.

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NOTE: a. ‘Tort’ is a civil wrong. b. An ‘Injunction’ is a judicial process whereby a party is ordered

to refrain from doing or to do a particular act or thing. " Criminal law: It is a law which punishes the wrongs done to persons and

their properties like murder, theft etc. Aim of criminal law is to protect the society against criminals and law breakers. Criminal wrong affect not only individual but society at large and hence generally State is always a party (there are few exceptions where State is not a party in criminal proceedings. Ex: marriage related offences). Criminal laws generally prescribe punishment but punishment need not always be present. Example: Juvenile offender may just be warned and not punished for criminal acts. But broadly speaking criminal justice is punitive.

Example: Indian Penal Code 1860.

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Chapter 5

Legal Systems prevalent in the world

Legal systems around the world vary greatly and there are many legal systems prevalent in the world. These can be divided mainly in following categories:

1. Adversarial versus Inquisitorial Criminal justice system 2. Common law versus Civil law system

1. Udversarial versus Inquisitorial criminal justice system: " In Adversarial criminal justice system, following 3 principles/rules form the

bedrock: I. Accuse is presumed innocent unless proven guilty.

II. Burden of proving the guilt of the accused person lies on prosecution and it never shifts.

III. Judge sits as a neutral umpire. He does not take active interest or active involvement in criminal trial. Judge participates or intervene only when it becomes imminent. Judge hears both sides neutrally and adjudicates.

In India, Adversarial criminal justice system is followed. There are certain exceptions to the rule II as few Special laws put burden of proof on accused. For example: Dowry Prohibition Act, SC & ST Atrocities Prohibition Act, proof of consent in case of offence of Rape, POSCO Act 2012, proof of ownership of wildlife produce under ‘Wildlife Protection Act 1972’ etc.

" In Inquisitorial criminal justice system, Judge takes active interest in investigation and directs the investigation agencies to investigate in a particular manner. This criminal justice is followed in United Kingdom, USA, Canada etc.

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2. Common law versus Civil law system:

a. In Common law system case laws in the form of published judicial opinion (past legal precedents and judicial rulings) dominate and decide case at hand.

b. In Civil law system codified statutes and ordinances rule the land. Core principles are codified into a referable system which serves as the primary source of law.

c. There are roughly 150 countries that have what can be described as primarily civil law systems, whereas there are about 80 common law countries.

d. Some countries like South Africa use a combination of civil and common law.

e. Both systems have similar sources of law- both have statutes and both have case law, they approach regulation and resolve issues in different ways, from different perspectives

Comparison chart

Civil Law Common Law

Legal System Legal system originating in Europe whose most prevalent feature is that its core principles are codified into a referable system which serves as the primary source of law.

Legal system characteriWed by case law, which is law developed by judges through decisions of courts and similar tribunals.

Role of

judges

Chief investigator; makes rulings, usually non-binding to 3rd parties. In a civil law system, the judge’s role is to establish the facts of the case and to apply the provisions of the applicable code. Though the judge often brings the formal charge.

Makes rulings; sets precedent; referee between lawyers. Judges decide matters of law and, where a jury is absent, they also find facts. Most judges rarely inquire extensively into matters before them, instead relying on arguments presented by the part.

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Countries Spain, China, Japan, Germany, most African nations, all South American nations (except Guyana), most of Europe

India , USA, England, Australia, Canada;

Constitution Always Not always

Precedent Only used to determine administrative or constitutional court matters

Used to rule on future or present cases

Jury opinion In cases of civil law, the opinion of the jury may not have to be unanimous. Laws vary by state and country. Juries are present almost exclusively in criminal cases; virtually never involved in civil actions. Judges ensure law prevails over passion.

Juries are comprised only of laypersons — never judges and, in practice, only rarely lawyers — and are rarely employed to decide non-criminal matters outside the United States. Their function is to weigh evidence presented to them, and to find facts.

History The civil law tradition developed in continental Europe at the same time and was applied in the colonies of European imperial powers such as Spain and Portugal.

Common law systems have evolved primarily in England and its former colonies, including all but one US jurisdiction and all but one Canadian jurisdiction. For the most part, the English-speaking world operates under common law.

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Sources of

Law

1. Constitution 2. Legislation – statutes and subsidiary legislation 3. Custom 4. International Law 5. [Note: It may be argued that judicial precedents and conventions also function within Continental systems, but they are not generally recogniWed.]

1. Constitution (not in the UK) 2. Legislation – Statutes and subsidiary legislation 3. Judicial precedent – common law and equity 4. Custom 5. Convention 6. International Law

Type of

argument

and role of

lawyers

Inquisitorial. Judges, not lawyers, ask questions and demand evidence. Lawyers present arguments based on the evidence the court finds.

Adversarial. Lawyers ask questions of witnesses, demand production of evidence, and present cases based on the evidence they have gathered.

Evidence

Taking

Evidence demands are within the sovereign inquisitorial function of the court — not within the lawyers’ role.

Widely understood to be a necessary part of the litigants’ effective pursuit or defense of a claim.

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Chapter 6 Concept of Crime – Un Introduction

1. Crime –what it is?

• The term crime has not been defined in any statute. No Indian Act gives us a definition of it.

• Crime is different from “Offence”. • Offence has been defined in section (2)(n) of CrPC.

Section (2)(n) of CrPC : “Offence “ means any act or omission made punishable by any law for time being in force”.

• Offence is an act which violates civil or criminal law. • It may be noted that “Offence” is the genus of which “crime” is a species. In

other words, all crime are offences but all offences are not crime. • Generally, Crime is considered an act which is forbidden by law and

revolting to the moral sentiments of the society. • Broadly speaking, crime has two components:

i. Actus Reus (forbidden deed) - Physical element ii. Mens Rea (Guilty mind) – Mental element

• “Actus Reus” means ‘such result of human conduct which law seeks to prevent’.

• For all conventional and traditional crimes, the basic dictum as enunciated in law is :“actus non facit reum, nisi mens sit rea”. It means that the act alone is not sufficient. The act and intent must combine together to constitute crime. The intent here is the mental component of crime which is called Mens Rea (We shall discuss the exceptions to this dictum later on when we discuss different criminal liabilities.) Examples: a) Suppose you after attending the class pick books from the desk

thinking these as your own book. Later it was found that these belong to somebody else. Will you be charged for theft u/s 378 IPC? ! No. You will not be charged for theft as there is no Mens Rea to

commit the crime of theft.

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b) Now suppose with the intention to steal books of other student, you picked books and went away. Later it was found that the books picked are your own books. Whether you have committed the offence of theft? ! Still No, as there is no Actus Reus.

c) You have borrowed books from your colleague for 2 days with the intention of not returning the books and you never returned. Can you be charged of any offence? ! Yes. You may be charged of committing the offence of Cheating u/s

415 IPC. • Simply speaking, offence means any act or omission made punishable by

any law. Crime being a species of Offence, also follows the same definition. It may be resolved into following components:

i. An act is a deed i.e. doing of something positive such as killing, assaulting, stealing etc. It should be something prohibited under the law.

ii. Omission means a negative act, non doing of something which the law commands the person to do. When an officer-in-charge stand by and looks on when an accused is beaten up by a subordinate in the lockup, she indulges in illegal omission, because she has a legal duty to prevent such a thing.

iii. The act or omission must be something punishable under the law. iv. The act alone is not sufficient. The mind must be at fault. v. Crime is something which must have resulted from human behavior. If

an ‘ox’ gores you and thereby breaks your bone, in circumstances where its master is not in anyway responsible for negligence or rashness etc. then crime can not be said to have been committed, although you have suffered a fracture.

vi. The sanction prescribed for commission of crime is ‘punishment’. 2. Stages of Crime:

• There are 4 stages of crime from conception to commission. These are called:

i. Intention ii. Preparation

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iii. Attempt iv. Commission

i. Intention:

a) Intention is condition of mind. b) Intention is the design with which a crime is committed. It may

be resolved in two components, namely ‘Foresight’ and ‘Desire’. If you are in apposition to foresee the consequence of your act and at the same time, desire such consequence to happen, then your doing of the act is intentional. In other words, you will be said to have intended it.

c) Every person is presumed to know the natural and probable consequences of her own action she is responsible for the same.

! Motive

a) Intention should not be confused by Motive. b) Motive is what prompts a person to have intention. A crime is

not committed for the sake of committing crime itself. There is always an ulterior objective. If you ask why a crime is committed, the answer is what may be called as motive. For example: ‘A’ was grievously injured by ‘B’. why?

Ans. – For revenge, For gain;

Here, revenge and gain as the case may be, is the motive behind the injury.

c) Evidence of motive is relevant because it throws or tends to throw light over intention but not essential for the establishment of a crime.

d) Absence of intention may be a defence at a criminal trial but absence of a motive is not. Sometimes motive is known only to the criminal. That apart, a motiveless crime is also a crime.

e) Motive does not affect the criminal liability, although it may be taken into account in determining the nature and quantum of punishment to be inflicted upon the guilty person.

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f) Motive, however pure or laudable it may be, will not exonerate the criminal. Example:

A father stealing food from a shop to feed his children who are hungry for 2 days, is committing a crime of theft. His motive, however, pure it may be, will not excuse him from the criminal charge of theft.

A mother killing her minor son who is suffering from incurable disease and having extreme pain, out of compassion, is as much guilty of murder as any other person.

! Question: Is mere intention to commit a crime punishable? Ans: No. A bare intention, an intention simpliciter unaccompanied by

any overt act is not punishable under the law. Thoughts of men are not triable. Intention, so long as it remains confined within the four walls of the mind, is not punishable.

Example: ‘A’ intends to kill ‘B’. so long as her intention rest in her mind, it is not punishable, although offence contemplated is murder.

But if A holds out a threat to B by saying “I shall kill you”. That threat is punishable under the name “Criminal Intimidation” u/s 503 IPC. Here what is punishable is not intention to kill but the threat to the person coupled with the intent to cause alarm.

! Question: What about Criminal conspiracy even if no overt act is done? Ans: An agreement to commit an offence is a kind of criminal

conspiracy. A criminal conspiracy of this kind is punishable even if no overt act is done in pursuance thereof. Hence it will not be correct to say that mere intention is what has been made punishable in the context of the offence of criminal conspiracy.

ii. Preparation:

It consists of devising or arranging means or measures for the commission of a crime.

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Example: ‘A’ intends to kill ‘B’. A procures a knife and rope. This is preparation.

! Question: Is mere preparation to commit a crime punishable? Ans: Generally not. But there are certain exceptional cases where

mere preparation has been made punishable under the IPC. Examples:

a) Preparation to wage war against the government of India – sec 122 IPC

b) Preparation to commit depredation on the territory of any power at peace with the government of India – sec 126 IPC

c) Preparation to commit dacoity – sec 399 IPC iii. Uttempt:

a) It is the direct movement towards the commission of a crime after the preparation has been completed.

b) Attempt begins where preparation ends. c) It means that whatever is required to be done by an individual

in order to achieve the goal or objective, has been done by her and she is unsuccessful because of circumstances beyond her control. She has reached such a stage that even if she feels sorry for the consequences, she is not in position to withdraw. Examples :

! Question: Is attempt to commit a crime punishable? Ans: Generally Yes. In the IPC, attempts have been dealt in 3 different ways. They are as follows:

i. The first group consists of those cases where the principal offence and the attempt to commit that offence have been dealt with and made punishable by same section. Example: Waging war against the Government of India and attempt to wage war against the Government of India are covered by the same section namely, sec. 121 IPC.

ii. The second group relates to those cases where the principal offence and the attempt to commit that offence have been dealt

30

with by separate sections and different punishments have been prescribed. Example: Murder is punishable u/s 302 IPCbut attempt to commit murder u/s 307 IPC. Other examples – sec 304 and 308 IPC; sec 394and 393IPC

iii. Third group refers to those cases of attempts which have not been expressly provided for, that is, those attempts which do not fall either under Group I or Group II.

Section 511 IPC is the residuary or general section for attempts. This section does not apply to those offences which are punishable with fine only.

Section 511 IPC cannot also be attracted to the Non IPC offences. In other statutory offences, attempts will be punishable only when they have been made punishable thereunder but not otherwise vide Sec 40 IPC.

3. Incomplete crimes:

• These are also known as ‘Inchoate Crimes’. The term inchoate literally means ‘just begin, incomplete, undeveloped or unfinished’.

• As now we all know that thoughts of human being are not punishable. It means that as long as a person is merely contemplating to commit a crime and does not do any thing further, she does not render herself liable to for prosecution. “Does it mean that law should remain silent and inert till the substantive crime is actually perpetrated?” ⇒ A legal system will be defective and deficient if it does not provide for

action at the appropriate stage. Law must intervene when a person begins to do overt acts clearly indicating that she is proceeding to commit the crime contemplated. Hence after the inner thoughts have been made manifest by external conduct but the crime contemplated is yet to be completed, there are activities which must be punished, because they may ultimately lead to the commission of substantive crimes.

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“Those activities which occupy a position between contemplation

and completion and are labeled by law as criminal, are known as

“Inchoate or incomplete crimes”.

• Identification and classification of Inchoate crimes: o Inchoate crimes may be classified under three heads:

i. Abetment ii. Criminal conspiracy

iii. Criminal attempt i. Ubetment:

# A crime is hardly committed by a single individual without an accessory or accomplice. A criminal also needs somebody to counsel her or to assist her or to encourage her. A person who commits crime with her own hands is the Principal but another person who renders her assistance, encouragement, support etc. before or at the time of commission of an offence is known as ‘Abettor’.

# General principles of Abetment have been dealt under chapter V of IPC (vide sec 107 to sec 120).

# In the context of abetment under criminal law, three things are essential:

a. Abettor b. Abettor must abet by any of the following two means/mode

recogniWed by law: i. Instigation

ii. Intentional aiding c. The abetment must be towards commission of an offence.

# Even though the act abetted has not been committed, the abettor is liable for abetment. # The abetment of an offence is a substantive offence and as such,

there may be abetment of abetment.

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ii. Criminal conspiracy:

# The substantive offence of criminal conspiracy has been defined in section 120-A IPC. The punishment for criminal conspiracy is provided for in sec 120-B IPC.

iii. Criminal attempt:

# We have already dealt criminal attempt in previous chapter.

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Chapter 7 ELEMENTS OF CRIME UND CRIMINUL LIUBILITY

Now with understanding of complete as well as incomplete crime, we shall

discuss liabilities of a person in different circumstances. Ordinarily, every person is responsible criminally for a criminal act done by her. No person can be held responsible for an independent act and wrong committed by another. The principle of criminal liability is that the person who commits an offence is responsible for that and she can only be held guilty. In any crime, either all or some of the following four ingredients may be present:

a. There has/have to be a person/persons who does/do certain act or omission.

b. Actus Reus c. Mens Rea d. Intended result

For general criminal liability, all four components should be present but if one or other element is/are missing, then also liability for the crime committed will be there. Under IPC, we can divide different liabilities in following four categories:

i. Inchoate liability

o When first three ingredients of crime mentioned above are present but the fourth ingredient ‘intended result’ has not been achieved, the liability is known as Inchoate liability. We have discussed it in previous chapter.

ii. Joint liability

o When, except the ‘Actus Reus’ ingredient on part of an individual, rest three ingredients are present in a crime committed, the liability is known as Joint liability. Section 34 IPC lays down the principle of Joint liability in the doing of a criminal act. It says ‘when a criminal act is done by several persons, in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it

34

were done by him alone’. Other sections of IPC which deal with Joint liability are sec. 149, sec. 399 and sec. 460.

Example: ‘A’ was outside the room guarding the gate when ‘B’ her partner was committing the murder of ‘C’ inside. A will be liable for the offence of murder of ‘C’ in the same manner as if it was done by her only.

iii. Strict liability

o When, except the ‘Mens Rea’ ingredient, rest three ingredients are present in a crime committed by a person, the liability is known as Strict liability. Offence under Sec 363 IPC (of kidnapping from lawful guardianship) and sec 394 IPC (of related to Robbery) are Strict liability offence which do not require Mens Rea. Other Strict liability offences are contempt of court, offences in ‘Essential Commodity Act’ etc.

iv. Vicarious liability

o The principle of vicarious liability says that one who does an act on behalf of any person, it is deemed in law that she has done it. (Qui facit peralum facit per se meaning let the principle be held responsible)

o Vicarious liability is not common in criminal law. It is a creature of Civil law.

o When none of the four ingredients mentioned above is present in a crime committed by some other person/persons, but still you are liable, the liability is known as Vicarious liability. Only three section of IPC namely, sec 154, sec 155 and sec 156 deal with criminal Vicarious liability. In few Special Acts provision involving criminal Vicarious liability are present.

Example- i. Criminal Vicarious Liability: Recent amendment done in

‘Motor Vehicles Act, 1988’ by ‘The Motor Vehicles (Amendment) Act 2019’, has added criminal vicarious liability of guardian or owner of the vehicle, where an offence under the Motor Vehicle Act has been committed by a juvenile. Guardian of such juvenile

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or owner of the vehicle shall be deemed to be guilty of the contravention and shall be liable to be punished with imprisonment which may extend to 3 years and fine of Rs 20000/-, provided that guardian or owner of the vehicle proves that offence was committed without their knowledge or that they exercised due diligence to prevent the commission of such offence. It is also highlighted here that Court shall presume that the use of the motor vehicle by the juvenile was with the consent of the guardian of such juvenile or the owner of the motor vehicle.

ii. Civil Vicarious Liability: An act of an agent is considered to be

an act of a principal. Agent commits any mistake, the principal is made vicariously liable for civil cases. Government servant commits any wrong while discharging her duties, the concerned government is made civil vicariously liable for the civil wrongs committed by its own servant.

Criminal Liabilities under Indian Laws

Person

Mens rea

Actus reus

Intended result Inchoate liability (all attempts, abatements and criminal conspiracy)

Joint liability (sec 34, 149, 399,460)

Strict liability ( sec 363, 394), Contempt of Court, Essential Commodity Act,

Vicarious liability ( sec 154,155,156)

If ‘NO’

If ‘NO’

If ‘NO’

If ‘NO’ If ‘NO’

If ‘NO’ If ‘NO’

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Chapter 8 INDIUN PENUL CODE- Un Introduction

Indian Penal Code is a penal statute. It is the general law of crime in India.

It is a substantial law because it not only defines offences but also prescribes punishments for commission of such offences. The IPC was brought into force on the first day of January 1862. 1) Jurisdiction

a. IPC has two kinds of jurisdiction, namely: i. Intra territorial jurisdiction (sec 2)

ii. Extra territorial (sec 3 and sec 4) jurisdiction b. If any offence under the IPC is committed by a person within the

territory of India, whether Indian or foreigner, she is liable to be prosecuted and punished by the court in India having jurisdiction.

c. If an Indian commits an act of commission or omission outside India, which is an offence under IPC, she may still be prosecuted and punished under IPC by a competent Indian court, even though the act may not constitute an offence under the law of that land.

d. If nay offence under the IPC is committed on any ship or aircraft, registered in India, the person committing it shall be liable to be dealt with under IPC by a competent Indian court, even though the ship or aircraft, at the time of commission of such offence has remained outside India.

e. A person however can not be prosecuted and punished twice for the same offence, one under IPC and the other under foreign law.

2) Scheme of the Code

a. The code is broadly divided into 23 chapters. To be precise it contains 26 chapters at present because 3 chapters, namely VA, IXA and XXA have been added subsequently.

b. Each chapter is again sub divided into several Sections.

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c. The last Section of the IPC bears the number 511. This however does not imply that IPC has 511 Sections as many Section have been added and several Sections have been omitted.

3) Urrangement

a. Arrangement of scheme of the code is shown in the following chart:

IPC 1860

(23 Chapters & 511 Sections)

Introductory provisions Penal provisions

Ch 1- introduction and extent Ch 2 – explanation Ch 3 – punishment

Of Offence Of Defence

Complete crimes Incomplete crime/ Inchoate crime

Ch 6 – offence against State Ch 7 – offences against army, navy etc. Ch 8 – offences against public peace Ch 9 – offences by public servant Ch 10 – offences against authority of public servant Ch 11 – offence against judiciary Ch 12 – offences against coin, stamp etc. Ch 13 – offences against weights & measures Ch 14 – offences against public morality, decency etc. Ch 15 – offences against religion

Ch 16- Offences against human body Ch 17- Offences against property Ch 18- forgery Ch 19- Offences against agreement Ch 20- Offences against marriage Ch 20A- cruelty by husband & family Ch 21- defamation Ch 22- criminal intimidation

Ch 5 Ch 5A Ch 23 All attempts. Offences against State/ public authorities/public

Offences against individual

Ch 4- exceptions

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Chapter 9 Punishment under IPC

One of the prime objectives of criminal law is imposition of appropriate, adequate, just and proportionate sentence commensurate with the nature and gravity of crime and the manner in which the crime is done. The object should be to protect the society and to deter the criminal by imposing appropriate sentence. The main purpose of the punishment broadly stated is that the accused must realiWe that she has committed an act which is not only harmful to the society of which she forms an integral part but also harmful to her own future, both as an individual and as a member of society. 1. Different Theories of Punishment:

– Punishment in criminal cases is both punitive and reformative. And therefore both (a) Punitive theory of punishment and (b) Reformative theory of punishment have been developed.

a. Punitive Theory of Punishment: o On the commission of crime, three type of reactions may

generate: i. Punitive Approach

ii. Therapeutic Approach iii. Preventive Approach

i. Punitive Approach: It regards the criminal as a notoriously dangerous person who must be inflicted severe punishment to protect the society from his criminal assaults. In this approach the rationaliWation of punishment is based on ‘Retributive’ and ‘Deterrent’ theory. ‘Retributive theory’ proceeds on the basis that punishment is required for the psychological satisfaction of the victim. An eye for an eye or a tooth for a tooth is the basic principle of retribution. ‘Deterrent theory’ proceeds on the basis that the punishment should act as a deterrent not only to offender but also to others in the community.

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ii. Therapeutic Approach: It regards the criminal as a sick person requiring treatment. This theory aims at curing the criminal tendencies which were the product of diseased psychology. This approach has been treated as an effective method of punishment which not only satisfy the requirement of law that a criminal should be punished but also reforms the criminal through various processes the most fundamental of which is that in spite of having committed a crime, she should be treated as human being entitled to all the basic human rights, human dignity and human sympathy. This theory believes that brutal punishment hardly corrects; rather, it brutaliWes both the criminal and community and hardens the attitude of the former towards the conventional society.

iii. Preventive Approach: Apart from punishing the offender, this approach seeks to eliminate those conditions from the society which were responsible for crime causation.

b. Reformation Theory of Punishment:

i. The reformative aspect is meant to enable the person concerned to relent and repent for her action and make herself acceptable to the society as a usual social being. The theory of reformation through punishment is grounded on the sublime philosophy that every person is born good but circumstances transform her into a criminal. Law should be applied in such a way that it crushes the criminality in human and not humanity in a criminal.

No single theory works in isolation or independently. Punishment is cumulative effect of different theories and approaches.

2. Punishment under IPC: Chapter III of IPC is ‘Of Punishments’. Section 53 IPC of this chapter deals with the punishment to which offenders are liable and provides for five kind of punishments:

i. Death ii. Imprisonment for life

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iii. Imprisonment iv. Forfeiture v. Fine

i. Death sentence: Death punishment is awarded where option of life has been irrevocably closed. Basic rule of jurisprudence for death penalty is that ‘life imprisonment is a rule, death penalty is exception’. In it’s landmark judgment of ‘Bacchan Singh vs State of Punjab,1980, SC’, 5 member constitutional bench of Supreme Court has pronounced that Death penalty should be awarded only in rarest of rare cases. SC in the judgment has said that along with Aggravating and Mitigating circumstances of crime, Aggravating and Mitigating circumstances of criminal should also be looked into while pronouncing death penalty. This judgment was further strengthened by another judgment of SC in ‘ Santosh Kumar vs State of Maharashtra, 2009’. In this judgment SC observed that public opinion has no role to play in deciding death penalty.

ii. Imprisonment for life: Life imprisonment means that a person will remain imprisonment for the remainder of that person’s natural life and it will be a ‘rigorous imprisonment for life’ and not ‘simple imprisonment for life’. ⇒ Question: Whether life imprisonment is to be taken as

imprisonment for 20 or 14 year? Ans: No. this confusion can come while we read sec 57 IPC. Section 57 IPC states that ‘in calculating fractions of terms of punishment, imprisonment for life shall be reckoned as equivalent to imprisonment for 20 years. Sec 57 IPC has very limited scope only for calculating fractional punishment in certain cases. For example- for the offence of attempt to commit rape punishable u/s 376(2)(a) read with sec 511 IPC, maximum sentence would be rigorous imprisonment for 10 years.

It is made absolutely clear that life imprisonment means imprisonment for the whole of convict’s natural life. It should not be taken as imprisonment for 20 years or for any other period unless

43

the sentence is remitted or commuted by the government in accordance with the law.

iii. Imprisonment: Imprisonment is of two kinds: (a) rigorous and (b) simple. In the case of rigorous imprisonment the offender is put to hard labour and in case of simple imprisonment the offender is confined to jail and is not put to any kind of work unless she volunteers herself to do the work. The under trials are not required to work in jail.

iv. Forfeiture: The punishment of absolute forfeiture of all property of the offender is now abolished. There are only three section of IPC in which the offender is liable to forfeiture of specific property. They are sec 126, 127 and 169 IPC.

v. Fine: A fine is fixed with due regard to circumstances of the case in which it is imposed and condition of life of the offender. As per sec 65 IPC, imprisonment for default of payment of fine shall not exceed one fourth of the term of imprisonment which is the maximum fixed for the offence.

There may be situations in which even though a person is found guilty of the offence but may not be given punishment mentioned in sec 53 IPC. These are following:

i. Detention in reformatories: juvenile offenders sentenced to imprisonment may be sentenced to, and detained in, a Reformatory School for a period of three to seven years.

ii. Probation: ‘Probation of Offenders Act 1958’ deals with releasing offender, specially below 21 years of age, after admonition or on probation of good conduct, subject to the conditions laid down in the appropriate provisions of the Act. This Act recogniWes the doctrine that the object of criminal law is more to reform the individual offender than to punish her. Provision of this Act are applied having regard to the nature of offence and age, character and antecedents of the offender.

iii. Community Service for avoiding Jail sentence: At certain times court may feel that awarding community service would be good for the society rather than incarcerating the convict further in jail.

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Chapter 10

UDMINISTRUTION OF JUSTICE 1. Administration of justice means exercise of judicial power to maintain and

uphold rights and punish wrongs. It is the most essential function of the State. It consists of using government machinery of the State in enforcing rights or redressing wrongs.

2. Justice is administered by the system of courts according to the law. It involves two parties:

i. Criminal cases: a. Instituted on private complaint: the Complainant and the

Uccused. b. In any criminal prosecution: the Prosecution and the Defence.

ii. Civil cases: Plaintiff and Defendant Note: A right is claimed or a wrong is complained of by the former against

the later. 3. Systems of court in India:

a. At the apex there is a Supreme Court of India. b. At the State level, there are High Courts. Each High Court is the head of

the Judiciary in the State. c. At the district/ sub divisional level, there is a system of courts which

can be described as subordinate courts in the sense that they are all subordinates to High courts.

d. Supreme court and each High court are constitutional courts. These courts are Court of record and have power to punish for its contempt.

e. Supreme court and some High courts have original jurisdiction in civil and criminal cases.

f. The law declared by the Supreme court is binding upon all the court functioning in India.(Art. 141)

g. Each High court exercises administrative jurisdiction over the subordinate Courts.

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4. Division of administration of Justice: a. It is divided in to two branches, namely- Civil Justice and Criminal

Justice. b. Civil Justice is concerned with enforcement of rights whereas Criminal

Justice aims at punishment of the offenders. c. Civil and Criminal Justice are administered by two different sets of

courts, designated as “Civil Court” and “Criminal Court” respectively. d. The proceedings in a Civil Court are regulated by the Civil Procedure

Code, whereas the proceedings in a criminal court are governed by the Criminal Procedure Code.

e. There are different grade of civil and criminal courts. 5. OrganiWation of the Courts at the district level:

a. OrganiWation can be divided in two separate heads, namely Civil and Criminal. U. Civil Courts:

• There are three different grades of Civil Courts: i. First grade: District Judge and Additional District Judge;

ii. Second grade: Assistant District Judge, Subordinate Judge and Civil Judge grade I;

iii. Third grade: Munsif and Civil Judge grade II • The District Judge is the head of the administration of civil

justice pertaining to a district. • Additional District Judges have same judicial power similar to

that of a District Judge but an Additional District Judge does not get authority to hear an appeal or to try a case unless it is assigned to her by the District Judge.

• Judges of grade I and II posses both original as well as appellate jurisdiction.

B. Criminal Courts:

• Chapter II of CrPC 1973 deals with constitution of Courts. • For criminal jurisdiction each State is divided into several

sessions divisions. Each sessions division is generally co-extensive with a district. There is a Court of Sessions for each

46

sessions division. The judge who presides over the Court of Sessions is called the “Sessions Judge”. The Sessions Judge is assisted by the Additional Sessions Judges and Assistant Sessions Judges.

• The hierarchy of Criminal Courts in a district is as follows: i. Court of Sessions.

ii. Judicial Magistrates of the First Class and in Metropolitan areas, Metropolitan Magistrate.

iii. Judicial Magistrates of the Second Class. iv. Executive Magistrates.

• A Chief Judicial Magistrate (CJM) is a Judicial Magistrate, First Class, who has been placed in charge of a district.

• A Judicial Magistrate, First Class, who has been placed in charge of a Sub-division is called Sub-Divisional Judicial Magistrate (SDJM).

• The Chief Judicial Magistrate and all other Judicial Magistrates in a district are subordinate to the sessions judge.

47

6. Chapter III of CrPC 1973 deals with Power of Courts. Sentencing powers of the different trial Courts are indicated below:

Sr

no.

Type of Court Sentencing Powers

1. Session Judge Any sentence authoriWed by law, including death, imprisonment for life but a sentence of death shall be subject to confirmation by the High Court.

2. Additional Session Judge

- same as Session Judge-

3. Assistant Session Judge

i. Imprisonment for a term not exceeding 10 years

ii. Fine as authoriWed by law – no upper ceiling.

4. Chief Judicial Magistrate

i. Imprisonment up to 7 years

ii. Fine as authoriWed by law – no upper ceiling.

5. Judicial Magistrate First

Class

i. Imprisonment up to 3 years

ii. Fine not exceeding 10000/-.

6. Judicial Magistrate

Second Class

i. Imprisonment up to 1 year

ii. Fine not exceeding 5000/-.

7. Chief Metropolitan

Magistrate

- same as Chief Judicial Magistrate -

8. Metropolitan Magistrate

- same as Judicial Magistrate, First Class -

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7. When we use the term, the “District and Session Judge”, we imply that the person referred to has combined within herself two different capacities, namely, District Judge and session Judge. When she deals with civil matters, she uses the designation “District Judge” and when she deals with criminal matters, she describes herself as “Session Judge”.

8. Jurisdiction of Court: a. It may be of three kinds:

i. In respect of subject matter ii. Territorial

iii. Pecuniary b. A suit for recovery of possession of a property valued Rupees one

Lakh can not be filed in a Court of Munsif, because it is in excess of her pecuniary jurisdiction.

c. A Judicial Magistrate First Class cannot try a case of murder, although the offence has been committed within the local limits of her territorial jurisdiction. This is because the offence of murder is exclusively triable by a Court of Session.

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Chapter 11 Code of Criminal Procedure, 1973 - An Introduction

1. CrPC – what it is ? a. It is a Central Act passed by Indian Parliament. b. It is a procedural or adjective law and consolidates the law relating to

Criminal procedure. c. It provides for a machinery for the prevention and punishment of

offences under IPC and other substantive criminal law of the land. It lays down the procedure for investigation, inquiry and trial.

2. Historical background: a. Before 1882, law relating to Criminal procedure was not uniform. b. Criminal Procedure Code, 1882 was enacted to introduce for the whole

British India a uniform criminal procedure. c. In 1898 it was replaced by a new Code namely Criminal Procedure

Code, 1898. It was further amended in 1923 and 1955. d. The CrPC 1898 was replaced by existing Code of Criminal Procedure,

1973. Since then CrPC 1973 has seen many amendments several times. The most recent and profound ones are in year 2005, 2008 and 2013.

e. The act contains 484 sections, 2 schedules and 56 forms. The sections are divided into 37 chapters.

f. The Criminal Procedure Code is applicable in the whole of India. The Parliament’s power to legislate in respect of Jammu & Kashmir was curtailed by Article 370 of the Constitution of India. But after the revocation of Article 370 from Jammu and Kashmir CrPC is applicable to whole India Provided that the provisions of this Code, other than those relating to Chapters VIII, X and XI thereof, shall not apply-(a) to the State of Nagaland, (b) to the tribal areas. However the concerned State Government may, by notification apply any or all of these provisions in these areas. Moreover, the Supreme Court of India has also ruled that even in these areas, the authorities are to be governed by the substance of these rules.

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CrPC 1973

(37 Chapters & 484 Sections)

Preventive provisions Punitive provisions

Ch 8- taking security for keeping peace Ch 9 – maintenance of parent, wife & children Ch 10 – power for urgent law & order Ch 11 – preventive power of police

Proceedings after trial Trial related Proceedings

Ch 28- appeal for death Ch 29- revision and reference Ch 30- appeal* Ch 31- transfer of cases Ch 32- commutation, remission etc.

Judgment Ch 27

Before Trial Proceedings Trial Proceedings Special Proceedings

Ch 12- Information to police and powers of police Ch 13- jurisdiction of courts Ch 14- Condition requisite for initiation of proceeding Ch 15- complaint* Ch 16- issuance of process Ch 17- charge

Ch 18- session trial Ch 19- warrant case* Ch 20- summon case* Ch 21- summary case

Ch 22 Ch 23 Ch 24 Ch 25 Ch 26

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NOTE - Chapter marked with ‘*’ should be thoroughly and carefully read by all authorities other than police

officers exercising police powers like Forest officers, as these are important for day to day functioning in

implementation of law.

Ch 1 – Introduction Ch 2 – constitution of courts Ch 3 – power of courts Ch 4 – power of superior officers of police Ch 5 – arrest* Ch 6 – process to compel appearance of person Ch 7 – process to compel production of things*

Ch 33 – bail & bonds* Ch 34 – disposal of property Ch 35– irregular proceedings Ch 36 – time limitation* Ch 37 – miscellaneous

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Chapter 12 Classification of Offences in CrPc

(for procedural purpose)

1. Under CrPC, offences have been classified on the basis of five different criteria:

i. CogniWable and non -cogniWable ii. Bailable and non–bailable

iii. Offence triable as summons case and offence triable as warrant case iv. Offence exclusively triable by a Court of Sessions and offences not

exclusively triable by a Court of Sessions v. Compoundable & Non Compoundable

i. Cognizable and non -cognizable offences:

a. This division has been made with reference to power of police officer. b. Cognizable offences are those offences for which a police officer may

arrest without a court-mandated warrant in accordance with the first schedule of the code. [Sec 2 (c) CrPC]

c. Non-Cognizable offences are those offences for which a police officer has no authority to arrest without a court warrant. [Sec 2 (e) CrPC]

d. Another formulation that flows out of Sec 155 and Sec 156 CrPC is that CogniWable offence is where a police officer may investigate on her own without any order of any judicial authority but not in Non-CogniWable offences. In Non-CogniWable offences order of a competent Magistrate is necessary in order to enable the police to investigate.

e. Generally cogniWable offences are considered crime of serious nature. For IPC offences, division between cogniWable or non- cogniWable offences is not based on amount of imprisonment. It is based on potential danger and impact of such offence on the society at large. For example: being a member of an unlawful assembly u/s 143 IPC is a cogniWable offence though the amount of imprisonment is only 6 months. But forging a valuable security, will etc. u/s 467 IPC though

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has life imprisonment as punishment, it is classified as non- cogniWable offence.

f. Column 4 of the first schedule to the CrPC will show whether a particular offence is CogniWable or Non-CogniWable. The first schedule has two parts, namely (I) relating to the IPC and (II) concerning non-IPC offences. Part II of the first schedule lays down principle for declaring an offence as cogniWable or non- cogniWable concerning non-IPC offences. If any Act declares the offence as cogniWable then accept the position. If that Act is silent on that point, then decide the matter in terms of punishment prescribed for that offence and in the light of principle enunciated in Part II of first schedule to the CrPC. If the offence is punishable with imprisonment of 3 years or more, then the offence is cogniWable otherwise offence is non- cogniWable.

ii. Bailable and Non–bailable:

a. Bailable offence is an offence where the accused after arrest is entitled to be released on bail as a matter of right.

b. In non- Bailable offences bail is not a matter of right for the accused but it is a matter of discretion for the authority competent to grant bail that is, Court or the any other authority. It should not be supposed that bail cannot be granted in non- Bailable offences.

c. When an accused is granted bail, she is released from the legal custody upon furnishing a bond, with or without surety, for her attendance at the time and place mentioned therein. The place is generally a specified Court.

d. To find out whether a particular IPC offence is bailable or non- Bailable, one should refer to part I of first schedule to the CrPC and check up entry in column 5.

e. For any non-IPC offence, examine that particular Act which has created that offence. If the Act declares the offence to be bailable or non-bailable then accept the position. If that Act is silent on that point, then decide the matter in terms of punishment prescribed for that offence and in the light of principle enunciated in Part II of first schedule to the

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CrPC. If the offence is punishable with imprisonment of 3 years or more, then the offence is non bailable, otherwise offence is bailable.

iii. Offence triable as summons case and offence triable as warrant case:

a. Section 2(x) of the Code defines warrant-case as, a case relating to an offence punishable with death, imprisonment for life or imprisonment for a term exceeding two years.

b. Section 2(w) of the Code defines summons-case as, a case relating to an offence, and not being a warrant-case.

c. In Warrant cases, a formal charge is framed by the trial Court as per the law. In Summon cases it shall not be necessary to frame a formal charge by the trial Court. Framing of charges has been dealt in detail in chapter 14.

d. Under Section 204 of the code, a Magistrate taking cogniWance of an offence is to issue process whether the case is to be tried as warrant-case as per chapter XIX of the Code or as a summons-case as per chapter XX of the Code.

iv. Offence exclusively triable by a Court of Sessions and offences not

exclusively triable by a Court of Sessions:

a. Offences which have punishment of Death, Life imprisonment and imprisonment for a term exceeding more than 7 years shall be exclusively tried by Session Court. Other offences will not be tried by Session Court as a Court of original jurisdiction.

b. According to Sec 193 CrPC, no Session Court directly take cogniWance of any offence as a Court of original jurisdiction unless the case has been committed to it by a Magistrate u/s 209 CrPC.

v. Compoundable & Non Compoundable offences

a. Compoundable offences are those that can be compromised, i.e. the complainant can agree to take back the charges levied against the accused, whereas, non - compoundable offences are the more serious offences in which the parties cannot compromise.

b. Compoundable offences are those offences where, the complainant enter into a compromise, and agrees to have the charges dropped against the accused. However, such a compromise, should be a

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"Bonafide," and not for any consideration to which the complainant is not entitled to.

c. Section 320 of the CrPC looks at compounding of offences. Compoundable offences are less serious criminal offences and are of two different types mentioned in tables in Section 320 of the CrPC, as follows:

i. Court permission is not required before compounding – Examples of these offences include adultery, causing hurt, defamation, criminal trespass.

ii. Court permission is required before compounding – Examples of such offences are theft, criminal breach of trust, voluntarily causing grievous hurt, assault on a woman with intention to outrage her modesty, dishonest misappropriation of property amongst others.

d. All those offences, which are not mentioned in the list under section (320) of CrPC, are non-compoundable offences.

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Chapter 13 Process of Investigation under CrPC 1973

1. Chapter XII (Sec 154 to Sec 176) of CrPC deals with Information to Police and their Powers to Investigate.

2. In criminal cases involving cogniWable offences, the information given to police officer and reduced in writing as required by Sec 154 is known as “First Information Report” (FIR). Though FIR is not mentioned in the CrPC but these words are understood to mean information recorded under Sec 154.

a. “First Information Report” (FIR) – Its Characteristics i. It must disclose the commission of a cogniWable offence.

ii. It should be given to the Officer In-charge of a police station. iii. It should be earliest in point of time. Delay, if any, in making the

FIR should be explained in the FIR itself. iv. FIR may be in writing but if given orally, it should be reduced to

writing by the police officer. v. FIR should be signed by the person giving it and a copy of FIR

should be delivered to informant free of charge. vi. FIR may be made by any person, whether or not she has the

first-hand knowledge about the crime or not. vii. The recent amendment in CrPC in year 2013, has made the law

more sensitive to gender equality. As per the amendment, when information is given by a woman in relation to offence related to women (sec 326A, B; sec 354, A,B,C,D; sec 376, A,B,C,D,E and sec 509 of IPC), such information shall be recorded by a woman officer.

b. Evidentiary value of FIR: i. It is valuable because it gives earliest version of the event but it

is not a substantive piece of evidence. It can be used for the purpose of corroboration u/s 157 Indian Evidence Act.

ii. FIR may be used for contradiction u/s 145 CrPC against the maker.

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c. Supreme Court direction with regard to registration of FIR (case law – Lalita Kumari vs State of UP, 2014,SC constitutional bench)

i. Registration of FIR can not be refused. ii. It is Statutory duty of police officer to register FIR and in this

regard she has no discretion except when the matter is (i) Civil in Nature (ii) Matrimonial dispute.

d. If the SHO refuses to register the FIR, the incident can be reported to the Superintendent of Police (SP), who shall investigate the case herself or depute her sub-ordinate to do the same. Despite reporting the incident to the Superintendent of Police, if no action is taken, complaint can be preferred to the Jurisdictional Magistrate, who shall direct the police to register the crime and investigate the matter.

e. When the alleged offence is Non-CogniWable in nature, the police officer shall enter the information in a book kept for this behalf and refer the matter to Magistrate and will not start investigation without the permission of Magistrate. (Sec 155 CrPC)

f. In case of a cogniWable offence, the police may hold investigation u/s 156 of CrPC, irrespective of any order of the Court.

3. Investigation: a. Investigation usually starts as soon as information relating to the

commission of a cogniWable offence is given to a police station. However receipt and recoding of an FIR is not a condition precedent to launching of police investigation.

b. The investigation includes all the procedures which are done by the police officer under the Code for the collection of evidence. The investigation may be conducted by a police officer and not the Magistrate. The Magistrate can also authoriWe any other person to conduct the investigation on his behalf. (see definition in sec 2(h) CrPC)

c. Police investigation normally consist of the following steps: i. Proceeding to the spot

ii. Ascertainment of the facts and circumstance of the case iii. Discovery and arrest of suspected offender

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iv. Collection of evidence by the processes mentioned below or by any other lawful means: ⇒ Examination of various persons including accused ⇒ Reduction of the statements of such person to writing ⇒ SeiWure of things considered necessary ⇒ Search of places

v. Formation of opinion as to whether on the basis of material collected, there is a case to place accused to the trial and if so, taking necessary steps for the same by filling of a charge sheet u/s 173 of CrPC.

d. Three types of reports are required to be prepared at three different stages of investigation are as follows:

i. A preliminary report from the officer-in-charge of a police station to the Magistrate under sec 157 CrPC.

ii. Sec 168 CrPC requires the submission of a report from a subordinate officer to the officer-in-charge of the station, when the investigation is complete.

iii. Sec 173 CrPC requires a final report known as ‘Completion Report ‘ or ‘Charge Sheet’ to be submitted to the Magistrate as soon as the investigation is completed to start the trial. Charge Sheet must have in it: the facts in brief, a copy of the First Information Report, all the statements recorded under section 161 and section 164, list of the witnesses, list of seiWure and other pieces of evidence collected by the investigating agency during the investigation. It is on the basis of the charge sheet that the Magistrate frames the charges against the accused.

e. When investigating officer can file closure of investigation? i. If upon preliminary investigation police officer doing

investigation finds that there is no need for further investigation as there are no evidences which suggest happening of alleged incident, she may file preliminary investigation report u/s 157 to magistrate indicating that there are not sufficient ground for entering on further investigation.

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ii. If upon an investigation, it appears to the officer in-charge of the police station that that there is not sufficient evidence or reasonable ground of suspicion to justify forwarding of the accused to the Magistrate, she may file a ‘Closure Report’. Closure report is the one in which it is stated that there is not enough evidence to prove that the offence has been committed by the accused. Once the closure report is filed before the Magistrate, she may accept and report the case as closed, direct a further investigation into the case, issue a notice to the first informant as she is the only person who can challenge the report or she may directly reject the closure and take cogniWance of the case. The report under Sec 169 of the Code is referred to as the Closure Report.

NOTE: Closure Report is also known as Final Report or Summary Report / Khatma challan.

4. Whether a Judicial Magistrate has the powers to order investigation under CrPC 1973?

a. A Judicial Magistrate has powers to order investigation under different section of CrPC 1973.

b. To understand it better, we shall be looking into the power to take cogniWance of offences by Magistrate given in Chapter XIV of CrPC (Conditions Requisite for Initiation of Proceedings). Magistrates draw their power to take cogniWance of an offence u/s 190 of the Code. Any Magistrate of First Class, may take cogniWance of any offence in three situations:

i. Upon complaint – S 190(1)(a) ii. Police report – S 190(1)(b)

iii. On information/ on his own – S 190(1)(c) c. If a Magistrate does not take cogniWance of the matter upon receiving a

complaint directly under clause (a) of sec 190(1), then she can ask for investigation by police u/s 156(3) CrPC and can receive a police report u/s 173 CrPC. If the Magistrate takes cogniWance of the complaint received, then she u/s 200 CrPC examine the complainant and she can

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ask police or any other person to further investigate the matter and after receiving the investigation report, Magistrate can either dismiss the complaint u/s 203 CrPC or can issue further process u/s 204 CrPC.

d. Under clause (c) of sec 190(1) CrPC, if Magistrate on information or on her own knowledge comes to know about a crime, she can again ask police to investigate the matter u/s 156(3) CrPC and can receive a police report u/s 173 CrPC.

e. Under clause (b) of sec 190(1) CrPC, the Magistrate can take cogniWance after receiving a police report u/s 173 CrPC. If the Magistrate is not satisfied with the police report, then the Magistrate can ask for further investigation u/s 156(3) CrPC. If the Magistrate is satisfied with the police report she can issue the process u/s 204 CrPC.

f. Order of re-investigation on a Closure Report: A magistrate has 3 options when she receives a Closure Report u/s 169CrPC:

i. Magistrate may accept the Closure Report; ii. Magistrate may not accept the closure report and on the basis of

evidences presented in Closure Report, if she is convinced about sufficiency of evidences, may start trial and issue process u/s 204 CrPC;

iii. Magistrate may ask police to further investigate the matter u/s 156(3) CrPC.

g. If investigating officer files preliminary investigation report u/s 157 to magistrate indicating that there are not sufficient ground for entering on further investigation, Magistrate is not bound to accept the findings of preliminary report and may order further investigation u/s 159 CrPC.

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U Judicial Magistrate powers to order investigation under different sections of CrPC 1973 is summarized in the following

flow chart:

Sec 190(1)(a) Sec 190(1)(b) / Sec 173

Sec 190(1)(c) Sec 154 Sec 169

If magistrate takes cogniWance

Sec 200

Sec 202

Sec 156

If magistrate doesn’t take cogniWance

Sec 157

Sec 159

If magistrate doesn’t agree

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5. Procedure when the investigation is not complete within twenty-four

hours: a. Section 57 of CrPC requires that no person shall be detained in custody

without a warrant after the completion of twenty-four hours. So, what happens after this twenty-four-hour period is over?

b. Under section 167 CrPC, provisions have been made to authoriWe the detention of the accused in such custody a Magistrate thinks fit, when the investigation is not complete twenty-four hours. This is done only if it is believed that there are reasonable grounds for her accusation, and the investigation is still incomplete. The investigating officer shall forward a copy of the diary entries and also the accused to the Judicial Magistrate after the twenty-hour period gets over.

c. Power to Remand to Custody- Meaning, Duration and Relevant Sections: " Custody and Remand- Meaning: Custody means ‘Physical Detention’

While literal meaning of Remand is ‘to send back’. An accused is Remanded to (legal) Custody. (Legal) Custody as per CrPC is of two types:

i. Police Custody– In this type of custody, investigation officer can interrogate the accused under detention. Generally accused is kept in Police Station.

ii. Judicial Custody– In this custody, investigation officer has no right to interrogate the accused under detention. Generally accused is sent to Jail for detention under this custody.

" Duration and Relevant Sections:

U. During Investigation - Sec 167 CrPC A Judicial Magistrate may remand a person to any form of

custody extending up to 15 days. A person may be held in the Police Custody for a period of 15 days maximum on the orders of a Magistrate.

Hence Police Custody may extend only up to a period of 15 days from the date custody begins but Judicial Custody, if the Magistrate is convinced that sufficient reasons exist, following which the

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accused or suspect must be released on bail, may extend to a period of:

i. Maximum 90 days – when the offence is punishable with Death/ Imprisonment for Life/ Imprisonment for 10 years or above.

ii. Maximum 60 days - for all other crimes; The investigation has to be completed within a period of ninety

days or sixty days, otherwise, the accused shall be released on bail under the proviso to Section 167(2) of the Code.

B. After Magistrate takes cogniWance and case is pending before her, and during trial - Sec 309 CrPC

There is no maximum time limit for custody u/s 309 CrPC. The remand u/s 309 is always to the Judicial Custody and not to the police custody.

6. Inquest Report- What it is? a. An inquest report is prepared to determine the cause of death in cases

of suicides, unnatural death, and any suspicious death. An inquest by the police falls under section 174 of the CrPC while an Inquest report by Magistrate is covered u/s 176 CrPC. An inquest report does not give substantive evidence. However, it is a preliminary inquiry (not investigation) by the Police Officer/Magistrate who makes the report.

7. Inquiry and Investigation – differentiated: a. Investigation as mentioned in earlier paras, is collection of evidences

conducted by a police officer or by any person, other than a magistrate as defined in sec 2(h) of CrPC.

b. Inquiry, according to sec 2(g) CrPC, means every inquiry, other than a Trial, conducted under the Code, by a Magistrate or a Court.

c. Generally, police officers do investigation while Magistrates or Court do inquiry. What is done by a police officer under the CrPC can never be described as Inquiry (if mentioned specifically as in sec 174 CrPC).

d. The object of Inquiry is determination of truth or falsehood of certain allegations with a view to taking further action according to law.

e. Inquiry is distinct and different from trial. In practice, trial begins when the Inquiry ends.

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Example: i. When an Executive Magistrate proceeds to inquire into the truth

of the information upon which action has to be taken with regard to keeping security for peace and order under chapter VIII CrPC, it is Inquiry and not investigation. The reason being that purpose is to find whether bond is to be executed.

ii. When a Magistrate order for maintenance of wives, children and parents, she does it after an Inquiry under chapter IX CrPC.

iii. In case of a suspicious death, whether culpable homicide or any other kind of death, Inquiry is done by police to ascertain the truth about the incident u/s 174 CrPC or by a Magistrate u/s 176 CrPC.

8. TRIUL – what it is? a. CrPC has not defined “trial”. Though Judiciary through its process of

interpretation has defined trial as: “A trial is a Judicial proceeding which ends in conviction or acquittal”.

b. A trial is proceeding different from inquiry. When inquiry ends, trial may begin. While object of ‘Inquiry’ is determination of truth or falsehood of certain allegations; object of ‘Trial’ is to find the guilt, whether the accused is guilty or not.

c. Trial means whole of the proceeding before a Court of law including sentence.

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The points of difference between Investigation, Inquiry and Trial are brought

out below in tabular form:

Sr

no. Points Investigation Inquiry Trial

1. By whom

By a police officer or by any person, other than a magistrate as defined in sec 2(h) of CrPC.

By a Court or by a Magistrate including Executive Magistrate

By a Court

2. Object Collection of evidences Ascertainment of truth To find the guilt

3. Nature Always non-Judicial May be Judicial or non-Judicial (by Executive

Magistrate) Always Judicial

4. Matter It is always about or into an offence.

It may relate to an offence or any matter other than an offence.

It is always about or into an offence.

5. Initiation

It commences when there are grounds for investigation, based on information or otherwise.

It may start on very vague information, even rumors.

It commences after inquiry when there is certainty of allegations.

6. Sequence

In cogniWable offences, police investigation is a normal preliminary to the accused being put up for trial.

Proceeding up to framing of charge is Inquiry.

Trial follows Inquiry.

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Chapter 14 Condition Requisite for Initiation of Proceedings

(Chapter XIV CrPC)

1. The power of Magistrate to take cogniWance of a crime are very wide and it follows the basic dictum: “no offence should go unpunished”. Generally a Court take cogniWance of an offence when conditions requisite for initiation of proceedings are fulfilled. As per sec 190 CrPC. any Magistrate of First Class or otherwise empowered in this behalf, may take cogniWance of any offence in three situations:

a. Upon complaint – S 190(1)(a) b. Police report – S 190(1)(b) c. On information/ on his own – S 190(1)(c)

Every citiWen is duty bound to report the crime to the authorities of which she has information, whether she is in anyway related to it or not and hence set the law into motion. At the same time law itself describes certain restriction on powers of magistrate to take cogniWance in certain cases. Sec 195 to Sec 199 of this chapter are statutory restrictions on power of courts to take cogniWance. Hence a magistrate will not take cogniWance of an offence unless conditions mentioned under these sections are satisfied.

Sec 195 – offences against public servant under Chapter X IPC. # Only affected public servant can set law in motion.

Sec 196 – offences against State under chapter VI IPC # Prior sanction of Central Government or State

Government is necessary to set law in motion. Sec 197 – cogniWance against Judges and Public servant for offences

alleged to have been committed in discharge of their public duty # Previous sanction of Central Government or State

Government is necessary to set law in motion. Sec 198 – offence related to marriage under chapter XX IPC

# Aggrieved person will have to go to the courts with complain. No third party can set law into motion.

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Sec 199 – offences of defamation under chapter XXI IPC o Affected party themselves have to go to the courts with

complain. No third party can set law into motion. Though there is exception to this rule. If defamation is against the following six authorities, then court may take cogniWance on application of public prosecutor. These authorities are:

1. President of India 2. Vice President of India 3. Governor 4. Lt. General of UTs 5. Ministers of Center and State governments 6. Public servants

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Chapter 15 Framing of Charge

1. What is Charge?

a. In a criminal trial, charge is the foundation of the accusation and every care should be taken to see that it is not only properly framed but that the evidence is available in respect of the matters put in the charge.

b. The purpose of charge is to tell an accused person as precisely and concisely as possible of the matter with which she is charged. It is a basic principle of law that before summoning a person to face a charge and more particularly when a charge sheet is actually framed, the Court concerned must be equipped with at least prima facie material to show that the person who is sought to be charged is guilty of an offence alleged against him.

c. Sec 211 to sec 214 CrPC give clear and explicit directions as to how a charge should be drawn up.

d. In summon cases, no formal charge needs to be framed (Sec 251 CrPC); but in Warrant cases, if the Magistrate is of the opinion that a prima

facie case has been made out, a charge must be framed sec 240 CrPC). e. Defect in charge vitiates the conviction. f. It is held by Supreme Court that framing of charge and examination of

accused are two very important stages in a criminal trial. 2. Rules for Framing of Charge:

a. Chapter XVII CrPC deals with framing of charge. b. The most fundamental rule for framing of charges is that “for every

distinct offence there shall be a separate charge and such charge should be tried separately”.

c. Sec 219 to sec 223 CrPC are exception to this rule. These sections set the rules when a person is accused of more than one offence but is charged and tried at one trial. These are as following:

i. When different offences are done in different transaction but charged and tried at one trial – Sec 219 CrPC

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a. When more than one offence of the same kind committed within the space of 12 months, whether in respect of the same person or not, these shall be charged and tried at one trial.

ii. Sec 220 CrPC a. Sec 220(1): This sub-section relates to the joinder of

charges of offences committed by the same person. It applies to a case in which the different offences are part of one transaction. All offences must be separately charged and tried at one trial.

Illustration: Ai rescuesi B,i ai personi ini lawfuli custody,i andi ini soidoingicausesigrievousihurtitoiC,iaiconstableiiniwhoseicustodyiBiwas.i

Aimayibeichargediwithioffencesiunderisectionsi225iandi333iIPCiandi

triediationeitrialiasibothitheioffencesiareipartiofiaisingleitransaction.i

b. Sec 220(3): Ifitheiallegedioffenceifallsiwithinitwoiorimoreiseparateidefinitionsiofianyilaw,itheipersoniaccusedimayibei

chargedi with,i andi triedi ati onei triali for,i eachi ofi suchi

offences.i Illustration: Ai exposesi heri childi withi thei knowledgei thati shei isitherebyi likelyi toi causei itsi death.i Thei childi diesi ini consequencei ofi

suchi exposure.i Ai mayi bei separatelyi chargedi withi offencesi underi

sectionsi317iandi304iofitheiIPCianditriediationeitrialiasitheiallegedi

offenceifallsiwithinitwoiorimoreiseparateidefinitionsiunderiIPC,ithati

is,isectionsi317iandi304.i

c. Sec 220(4): Ifiseveraliacts,iofiwhichioneiorimoreithanioneiwouldi byi itselfi ori themselvesi constitutei ani offence,i

constitute,i wheni combined,i ai differenti offence,i thei

accusedimayibeichargediwith,ianditriediationeitrial,iforithei

combinedi offencei andi fori anyi onei acti whichi constitutei

offence. Illustration: Aicommitsi robberyioniB,iandi inidoingisoivoluntarilyicausesihurtitoihim.iAimayibeiseparatelyichargediwithioffencesiunderi

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sectionsi323,i392iandi394iofi thei IPCiandi triediationei trial.iSectioni

323iandi392i IPCi formingidifferenti singlei actsi andi sectioni394i IPCi

formsiaidifferentioffenceiwhenicombined.i

iii. Where it is doubtful what offence have been committed by accused, theiaccusedimayibeichargediwithihavingicommittedialliorianyiofisuchi

offences,iandianyinumberiofisuchichargesimayibeitriediationcei-iSec

221 CrPC Illustration: Aiisiaccusediofianiactiwhichimayiamountitoitheft,iori receivingi stoleni property,i ori criminali breachi ofi trusti ori

cheating.i Hei mayi bei chargedi withi theft,i receivingi stoleni

property,i criminali breachi ofi trusti andi cheating,i ori hei mayi bei

chargedi withi havingi committedi theft,i ori receivingi stoleni

property,i ori criminali breachi ofi trusti ori cheating.i SoiAimayi bei

chargediwithihavingicommittedialliorianyiofisuchioffences. iv. Wheni ai personi isi chargedi withi ani offencei consistingi ofi severaliparticulars,i ai combinationi ofi somei onlyi ofi whichi constitutes,i ai

completei minori offence,i andi suchi combinationi isi proved,i buti thei

remainingi particularsi arei noti proved,i hei mayi bei convictedi ofi thei

minorioffenceithoughiheiwasinotichargediwithiiti- Sec 222 v. Sec 223 gives detail about what persons may be jointly charged.

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Chapter 16 Limit to punishment of offence made up of several offences

1. We have seen in previous paras that u/s 220 CrPC, an accused alleged to have committed offence made up of several offences, can be charged and tried at one trial for, each of such offences. Generally investigation agency based on the evidences charge an accused with separate charge for each offence. It should however be remembered that sec 220 CrPC contains only rules of criminal pleading in regard to joinder of charges and does not deal with the limit of punishment and sentence to be passed on the charges of the offences.

2. What are the provisions under the law which govern and regulate the limit of punishment of offence made up of several offences? Try to answer to following questions to have better understanding of the issue:

" Question 1: Ai givesi Zi fiftyi strokesi withi ai stick.i Herei Ai mayi haveicommittedi thei offencei ofi voluntarilyi causingi hurti toi Zi byi thei wholei

beating,iandialsoibyieachiofitheiblowsiwhichimakeiupitheiwholeibeating.i

WhetheriAiisiliableitoipunishmentiforieveryiblowiorisheiisiliableionlyitoi

oneipunishmentiforitheiwholeibeating? " Question 2: Aiexposesiherichildiwithitheiknowledgeithatisheiisitherebyi

likelyitoicauseiitsideath.iTheichildidiesiiniconsequenceiofisuchiexposure.i

Aimayibeiseparatelyichargediwithioffencesiunderisectionsi317iandi304i

ofitheiIPCianditriediationeitrial.iWhetheriAiwillibeipunishediunderibothi

theisectionsiandiifinot,itheniunderiwhichisection? " Question 3: AicommitsirobberyioniB,iandiinidoingisoivoluntarilyicausesi

hurti toihim.iAimayibeiseparatelyichargediwithioffencesiunderisectionsi

323,i392iandi394iofitheiIPCianditriediationeitrial.iWhetheriAishouldibei

punishediunderiallithreeisectionsiandiifinot,itheniunderiwhichisection? 3. Answer to all three questions mentioned above is governed by Sec 71 IPC.

Section 71 of the IPC governs and regulates the limit of punishment in cases in which greater offence is made up of several minor offences. It is not a rule of adjective law or procedure, but a rule of substantive law regulating the measure of punishment and does not affect the question of conviction, which

72

relates to province of procedure, governed by Sec 31 CrPC. Quantum of punishment that a Court can pass where the accused is convicted of two or more offences at one trial is governed by sec 31 CrPC. It is made very clear that Section 71 IPC talks only of limit to punishment and not of conviction and is applicable to all offences.

" Unswer 1: “Offence made up of parts and any of the parts is by itself an offence, cannot be punished with the punishment of more than one of such offences” - Sec 71 IPC (clause 1)

Hence A will only be liable toioneipunishmentiforitheiwholeibeating.i" Unswer 2: “Whereianythingiisianioffenceifallingiwithinitwoiorimoreiseparateidefinitionsiofianyilawiiniforceiforitheitimeibeingibyiwhichi

offencesiareidefinedioripunished,itheioffenderishallinotibeipunishediwithi

aimoreisevereipunishmentithanitheicourtiwhichitriesihimicouldiawardifori

anyioneiofisuchioffences.” - Sec 71 IPC (clause 2)i

Hence Aiwillionlyibeiliableitoipunishmentiunderioneisectioniwhichiawardimoreisevereipunishment.iInitheisituationimentionedihere,iAimayi

beipunishediunderisectioni304iIPC.ii

" Unswer 3: ”where several acts of which one or more than one would by itself or themselves constitute an offence, constitute, when combined, a different offence,itheioffenderishallinotibeipunishediwithiaimoreisevereipunishmenti thani thei courtiwhichi triesi himi couldi awardi fori anyionei ofi

suchioffences.” - Sec 71 IPC (clause 3) Hence Aiwillionlyibeiliableitoipunishmentiunderioneisectioniwhichiawardimoreisevereipunishment.i Ini theisituationimentionedihere,iAimayi

beipunishediunderisectioni394iIPC.ii

NOTE: Section 71 contemplates separate punishment for an offence against the same law and not under different laws. Where offences are committed under two separate enactments, Sec 71 IPC is not helpful to the accused and as such two separate sentences may be given. Example: An overloaded vehicle is plying on the public road. Even though

the act of the accused is one but by this act she has committed two distinct offences punishable under two different enactments,

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namely (i) violation of the terms of permit and certificate of registration granted by the authorities which is punishable under the ‘Motor Vehicle Act’ and (ii) causing damage to the public property which is punishable under the ‘Prevention of Damage to Public Property Act’. Hence the claim of the accused that she is being punished more than once for the same offence violating Art 20(2) of Constitution of India and sec 71 of IPC, is not tenable.

4. Sentence in cases of conviction of several offences at one trial a. When a person is convicted at one trial of two or more offences, the

Court may sentence her for such offences. Section 31 of CrPC relates to the quantum of the punishment that the Court is to pass.

b. The Court may pass separate sentences, subject to the provisions of section 71 of the IPC, for several offences of which the Court find the accused guilty. Suchipunishmentsiwheniconsistingiofiimprisonmenti toicommenceioneiafteritheiexpirationiofitheiotheriinisuchiorderiasitheiCourti

mayidirect. It is the discretion of the Court to order for the sentences to run concurrently, otherwise the sentences will run consecutively.

c. The passing of separate sentence is not obligatory. It is only optional. d. Any sentence in default of fine has to be in excess of, and not

concurrent with any other sentence of imprisonment. e. The aggregate punishments and length of the period of imprisonment

are regulated by Sec 31 CrPC and cannot exceed the limit fixed by the provisos. In the case of consecutive sentences, (i) noi personi beisentenceditoiimprisonmentiforilongeriperiodithanifourteeniyears;i(ii)ithei

aggregateipunishmentishallinotiexceeditwiceitheiamountiofipunishmenti

whichi theiCourti isi competenti toi inflicti fori ai singlei offence.i [seci 31(2)i

CrPC] f. While rules under sec 71 IPC are rules of substantive law, sec 31 CrPC

is a rule of procedural law. EXAMPLE: A person who steals a calf and then kills it, is guilty of the

offences of theft (sec 379 IPC0 and mischief (sec 429 IPC) and is liable to be convicted and sentenced separately. In the Court’s

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order, it was not made expressly clear that both the sentence will run concurrently. Hence one sentence will run after other that is, both the sentence will run consecutively and not concurrently.

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Chapter 17 Procedure of Urrest under Criminal Procedure Code

1. Code of Criminal Procedure, 1973 lays down the procedural aspects of

procedure of arrest of a person who has committed any offence. 2. Chapter V of CrPC deals with the arrest of persons under (Sections 41 to

Section 60). 3. Three People can issue the process of arrest, they are as follows:

i. A police officer with or without warrant (Sections 41), ii. A private person (Sections 43),

– Any private individual may arrest a person only when the person a proclaimed offender and the person commits a non-bailable and cogniWable offences in his presence.iIf there is reason to believe that such person comes under the provisions of section 41, a police officer shall re-arrest him.

iii. A magistrate (Sections 44), – Any magistrate (whether Executive or judicial) may arrest a person

without a warrant. 4. What do we mean by the term arrest? Is it been defined under CrPC?

a. This term “Arrest” is very common term that we pick up a lot in our day to day life. Normally, we see a person, who does or has done something against the law, get arrested. The term ‘arrest’ means “apprehension of

a person by legal authority so as to cause deprivation of liberty.” b. As per Legal Dictionary by Farlex, “Arrest” means “a seizure or forcible

restraint; an exercise of the power to deprive a person of his or her

liberty; the taking or keeping of a person in custody by legal authority,

especially, in response to a criminal charge.” c. In criminal law, arrest is an important tool for bringing an accused

before the court and to prevent him from absconding. Thus, after arrest, a person’s liberty is under the control of arrester.

d. Every deprivation of liberty or physical restraint is not arrest. Only the deprivation of liberty by legal authority or at least by apparent legal

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authority, in a professionally competent and adept manner amounts to arrest.

e. However, a person against whom no accusation of crime has been made may be arrested /detained under a statute for certain purposes like removal in safe custody from one place to another, for example – removal of a minor girl from a brothel.

f. ‘Custody’ and ‘Arrest’ are not synonymous terms. In every ‘arrest’ there is ‘Custody’ but not vice versa. Thus, mere taking into custody of a person an authority empowered to arrest may not necessarily amount to arrest.

5. Purpose of Arrest: The mere purpose of arrest is to bring an arrestee before a court and to secure the administration of the law. An arrest also serve the function of notifying society that an individual has been stooped from committing further crime in future.

6. Arrest can be made in both criminal and civil but in civil matters the arrest is the drastic measure which is not looked upon in favour by the court.

7. The CrPC exempts the members of Armed forces from being arrested for anything done by them in discharge of their official duties except after obtaining the consent of the government (Sec. 45).

8. What is the process of making an arrest? Is it mentioned under CrPC?

a. The mode of arrest (with or without warrant) is been mentioned u/s 46 CRPC, which shall be discussed in follows paras.

b. In making an arrest the police officer/other person making the same, actually touches or confines the body of the person to be arrested unless there be a submission to custody by words or action.

c. Where a woman is to be arrested, unless the circumstances indicate to the contrary, her submission to custody on an oral intimation of arrest shall be presumed and, unless the circumstances otherwise require or unless the police officer is a female, the police officer shall not touch the person of the woman for making her arrest.

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d. If such person forcibly resists the endeavour to arrest him, or attempts to evade the arrest, such police officer or other person may use all means necessary to effect the arrest.

e. Nothing in this section 46 gives a right to cause the death of a person who is not accused of an offence punishable with death or with imprisonment for life.

f. Save in exceptional circumstances, no women shall be arrested after sunset and before sunrise, and where such exceptional circumstances exist, the woman police officer shall, by making a written report, obtain the prior permission of the Judicial Magistrate of the first class within whose local jurisdiction the offence is committed or the arrest is to be made.

Further with regard to arrest of a woman in urgent circumstances, Supreme Court in its judgment Christian community welfare council of

India vs State of MH, 2003,SC has observed that: “ In urgent circumstances, arrest of female person can be made by a male at any time of the day or night without the presence of a lady constable, reasons for it to be recorded before or after the arrest.” g. The person so arrested shall not be handcuffed unless the person

resists or attempts to evade arrest. Supreme Court in its judgment Birendra Kumar Rai vs UOI, 1992,SC has observed that: “Arrest need not be by handcuffing the person and it can also be complete by spoken words if the person submits to custody.”

9. Can a police officer arrest a person in any other place in India outside their jurisdiction?

Uns- As person sec 48 CrPC, a police officer may, for the purpose of arresting without warrant any person whom he is authoriWed to arrest, pursue such person into any place in India.

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10. Can a person be arrested if the committed crime falls in the category of non-cogniWable offence?

Ans- If a person has committed a non-cogniWable offence and refuses on the demand of a police officer to give his name and residence, or gives a name or residence which such officer has reason to believe to be false, he may be arrested by such officer in order that his name and address can be ascertained.

But as soon as his name and address is ascertained he shall be released on his executing a bond. He shall further be dealt with under the provisions of sec 42 CrPC.

11. What are the rights given to the arrested person?

a. In law, there is principle of “presumption of innocence till proven guilty”. It requires a person arrested to be treated with humanity, dignity and respect, till his guilt is proven.

b. Article 21 of our constitution provides: “No person shall be deprived of his life or personal liberty except according to procedure established by law”. The procedure contemplated by this Article must be ‘right, just and fair’ and not arbitrary, fanciful or oppressive.

c. Supreme Court, in it’s landmark judgment in D K Basu vs State of

West Bengal case, issued some guidelines which were required to be mandatorily followed in all cases of arrest or detention. Following are some of the important ones-

i. Right to be informed of the grounds of arrest under sec. 50 of CrPC and Article 22(1) of Indian Constitution. It is a fundamental right to be informed.

ii. It is the duty of the police officer who is making arrest, to inform whether the offence is bailable or non bailable.

iii. In non-cogniWable cases, arrest is made with warrant and the person going to be arrested has the right to see the warrant under Sec. 75 of CrPC.

iv. Warrant of arrest should fulfill certain requirements such as it should be in writing, signed by the presiding officer, should have seal of the Court, name and address of the accused and offence

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under which arrest is made. If any of these are missing, warrant is illegal.

v. Most of the directions given by Supreme Court in D K Basu vs

State of West Bengal case have been incorporated in Chapter V CrPC- ‘Arrest’ after amending few sections of this chapter through CrPC (amendment) Act of 2008 and 2010.

vi. The above amendments targeting the power conferred on the police officer must be exercised after reasonable care. Some clauses were added. These are:

a. Police officer must act reasonably that such arrest is necessary.

b. In all cases arrest is not necessary. c. Instead of arresting, Notice of appearance before police

officer can be made and if person concerned continues to comply with such notice and appears, then arrest is not necessary. (sec 41A CrPC)

d. The police officer must be wearing a clear, visible and clear identification of his name which facilitate easy identification. (sec 41B CrPC)

e. A memo of arrest must be prepared at the time of arrest (i) attested by at least one witness, it can be family member or member of locality where arrest is made (ii)counter signed by arrested person. (sec 41B CrPC)

f. Right of the arrested person to meet an advocate of his choice during interrogation. (sec. 41D and sec. 303 CrPC).

g. Arrested person has the right to inform a family member, relative or friend of his arrest. (sec 50A CrPC).

vii. Arrested person has the right not to be detained for more than 24 hours, without being presented before magistrate. This right is fundamental right under Article 22(2) of Indian Constitution and supported under section 57 and 76 of CrPC.

viii. Arrested person has the right to be medically examined (Sec 54 CrPC). The arrested person should be given the right to have his

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body examined by the medical officer when is produced before a magistrate or at any time under custody, with a view to enabling him to establish that the offence with which he is charged was not committed by him or that he was subjected to the physical torture.

ix. With the insertion of 55A through CrPC (amendment) Act of 2008, “it shall be duty of a person having custody of an accused to take reasonable care of the health and safety of the accused”, it has been attempted to check “custodial violence” (torture, rape, death in police custody/lock-up).

x. Arrested person has the right to remain silent under Art 20(3) of Indian Constitution so that self – incriminating statement cannot be extracted from a person without her will or consent.

12. Can the power of arrest be misused?

a. Although, there have been many safeguards provided by the Criminal Procedure Code and Constitution of India as mentioned above but the fact remains that the power of arrest is being wrongly and illegally used in large number of cases all over the country.

b. The vast discretion given by CrPC to arrest a person even in case of a bailable offence (not only where the bailable offence is cogniWable but also where it is non-cogniWable) and further power to make preventive arrest (e.g. under section 151 of the CrPC and several city police enactments), clothe the police with extraordinary power which can be easily abused.

13. Is there any special provision under the law for women during Urrest? a. Yes, with regard to women accused, there are provisions which provide

additional rights as given below:- i. General rule is that women are not be arrested without the

presence of a lady constable and further no woman be arrested after sunset or before sunrise except in exceptional circumstances. And where such exceptional circumstances exist, the woman police officer shall, by making a written report, obtain the prior permission of the JM I. (sec 46(4) CrPC)

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ii. According to NHRC guidelines on arrest, As far as practicable, women police officers should be associated where women are arrested, that too, arrest of women between sunset or sunrise should be avoided.

iii. When it is necessary to cause a female to be searched, the search shall be by another female with strict regard to decency. Body searches of females should only be carried out by women and with strict regard to decency. (sec 51(2) CrPC)

iv. Medical examination of women should be carried only under the supervision of female medical practitioners. (Sec 53(2) CrPC and “10 Basic Standards for Law Enforcement Officials” Proposed by ‘Amnesty International’).

v. In addition to above provisions, in it landmark judgment, Supreme Court in Sheela Barse vs St. of Maharastra, 1983 SC

has laid following guidelines which are to be strictly followed by law enforcing agencies:

1. It is the duty of the police officer making arrest to see that arrested females are segregated from men and kept in female lock-up in the police station.

2. In case there is no separate lock–up, women should be kept in a separate room.

3. According to S 160(1) CrPC, Women should not be called to the police station or to any place other than their place of residence for questioning.

4. Women should be guarded by female constables/police officers.

5. Women must be questioned in the presence of policewomen.

6. All necessary pre-natal and post-natal care should be provided to females who are arrested.

7. Restraints should only be used on pregnant women as a last resort. Their safety or the safety of their fetus should never be put at risk.

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8. Women must never be restrained during labor.

CONCLUSION In above discussion, we have tried to understand the term “Arrest”, procedure of arrest, rights of the arrested person and related case laws to the topics. Above mentioned each case has its own significance. By going through Law Commission paper on Law of arrest, we can read with data how power of arrest is being misused and more because of unawareness of people about their right. This report shows high percentages of arrests are made even in bailable offences, bails are not granted to those where getting bail is one’s right. Increasing percentage of number of under trial prisoners in jails, is an indication of this malaise. Arrest has a diminishing and demoraliWing effect on the personality. Arrested person is outraged, alienated and becomes hostile. But there is a need to have balance between security of state on one hand and individual freedom on other hand. There need to be some checks on this power and more awareness need to be created among the people about their rights, so that a balance system can be formed.

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Chapter 18 SEURCH UND SEIZURE

1. Search is a process whereby for the purpose of any investigation, inquiry or trial, the investigating officer is empowered to demand that relevant materials and documents be furnished. The process may be used for:

a. The investigation, inquiry or trial in respect of any offence. � b. For any other proceedings generally taken as a preventive or

precautionary measure. � 2. The chapter VII, containing of sections 91-100 of the Code of Criminal

Procedure, 1973, deal with the provisions related to summons to produce things, provisions related to search-warrants and other general laws relating to searches.

3. The provisions relating to search procedures �are considered to be directive in nature.

4. Generally speaking, courts have taken the view that violation of the search procedure will not vitiate the trial or make the search evidence inadmissible though it may affect the weight of evidence in support of the search and recovery.

5. The provisions of chapter VII CrPC, relate to summons, warrants for search and seiWure, their issue, the way they are served and executed and summons and warrants of arrests.

For a better understanding of the topic let us understand the meaning of the following terms:

a. Summons– A summon is an order from court to an individual to appear or to produce document or other thing before it at a specified time and place. A summon can be issued in both criminal and in civil cases.

b. Warrants– Warrant is legal document issued by a judge or magistrate, empowering a police officer to make an arrest, search or seiWe premises or undertake any action, concerning the administration of justice.

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c. Search– The term ‘search’ denotes that action of government machinery which includes looking through or examining carefully a place, area, person, object etc. in order to find something concealed or for the purpose of discovering evidence of a crime. Such search of a person or vehicle or premises or of any other thing can only be done by taking proper and valid permission of law.

d. Seizure– The act of seiWing is well known as seiWure. It is a forceful action in which an object or person is suddenly taken over, grabbed, removed, or overwhelmed.

6. How to Search: The procedures as stipulated in under Sections 93 to 98 of CrPC have to be followed. �

i. Search with a Warrant - �A search warrant is a written authority given to a police officer or any other person by a competent Magistrate or Court for the search of any place, either generally or for specified items or documents. The power to issue a search warrant is conferred upon Magistrates of First Class and Courts under Sections 93 to 98 of CrPC. a. Search a Premises –

• �The procedure for searching a premise is contained in Sec 100 of CrPC.

• The officer conducting the search should first communicate to the person in charge of the premise about his authority and purpose of the search. �

• The person in charge of the premise shall allow free entry to the premises as well as afford all reasonable facilities for the search; �

• If such free entry is denied, the officer conducting the search can forcibly enter the place. �

• If the person in charge of the premise is also suspected of concealing any illegal article the procedure with respect to “searching a person” should be followed. �

• The search of the premise is to be made in the presence of at least two independent and respectable inhabitant of the locality who shall be the witnesses to such search. �

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• If a person ordered by the person conducting the search to be a witness neglects or refuses without a reasonable cause to attend or witness the search he shall be deemed to have committed an offence under Section 187 of the IPC. �

• The search witnesses should actually accompany the officer conducting the search and be the actual witnesses to the fact of the finding of the property. It is not sufficient that the witnesses are merely summoned and kept outside the premises, while the search is being carried out within the premises. �

• The occupant of the place of search, or his nominee, shall in every case be permitted to attend during the search. �

• A list of all things seiWed in the course of the search of the places in which they are respectively found shall be prepared at the place of the search by the person conducting the search and shall be signed by the witnesses. �A copy of the list of things seiWed from the premises of such person is also required to be given to such person or his nominee in whose presence the search was made. �

• The recovery of the articles in such a search can be proved at the trial by calling the person conducting the search. However, it is not necessary to call a search witness in court for such purpose. The Court can if required summon such a search witness if it considers it necessary to do so. �

b. Searching a Person - � • The procedure for searching a person arrested is contained in Sec

51 of CrPC. • AuthoriWed officers may search the suspect and place in safe

custody all articles, including the articles seiWed other than clothes, found upon the suspect.

• A receipt of such articles has to be prepared by the officer and given to the suspect.

• �The body of the person conducting the search or search witnesses should also be searched so that there is no suspicion that anything has been planted. �

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• Presence of Witness is not required for search under Sec 51 CrPC unlike Sec 100 CrPC, which relates searching a premise. �

• Search of members of the Search Party though not required by the CrPC is done in practice. �

• Sec. 51 CrPC does not require that when search of an arrested person is made, signature of the person searched shall be taken on the memo of recovery or that its copy should be given to him. �

• Private persons may arrest but cannot search. � NOTE: Minor irregularities do not vitiate a search process. �

ii. Search without a Warrant - There can be exigencies during the process of investigation or inquiry where an immediate search of a place is vital to prevent the loss or fabrication of any document or thing relevant to the case. The Criminal Procedure Code provides for such exigencies by empowering the Magistrate to cause the search of a place in his presence where no written warrant is necessary and also empowers the police officers to conduct such search without any authoriWation from the Magistrate or the Court. The Code provides four circumstances where search can be conducted without a warrant: a. A Magistrate competent to issue a search warrant under “may direct a

search to be made in his presence if he considers it advisable. In such a case, it would not be necessary to formally issue a search-warrant”.

b. Generally, a search can be conducted only by an authority if a judicial officer is present. Nevertheless, Sec 165 CrPC and Sec 166 CrPC are exceptions to this general rule.

c. Sec 165 CrPC recogniWes that “in certain exceptional emergencies, it is necessary to empower responsible police officers to carry out searches before applying for a warrant to the court”.

Analysis of the Sec 165 CrPC:

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

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

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

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

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

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

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

7. Few more clarification regarding Search and seiWure: I. What is the punishment in case of vexatious entry, search, seiWure or

arrest? Answer: In case of illegal entry, search, seiWure or arrest without any

reasonable ground of suspicion or when somebody vexatiously and

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unnecessarily seiWes the property of person on the pretense of searching and seiWing for narcotic drug or when a person is arrested without any valid reason then in such cases imprisonment up to 6 months or fine up to Rs 1000/- or both can be levied.

In cases somebody maliciously gives false information, leading to search, arrest then in such case the person giving such false information is punishable for imprisonment up to 2 years or fine up to Rs 1000/- or both can be levied.

II. Are Search Warrants and seiWures an invasion to privacy? It was when question, arose in the case of M.P. Sharma vs. Satish

Chandra, in front of the apex court, that whether search warrant is an infringement to fundamental rights or not, the court then stated that search warrants and seiWures are only means of temporary interference with the right. Hence, the court upheld the fact that there is no infringement of article 19 or article 20(3) of the Constitution.

Since Search warrants and seiWures are considered equivalent to invasion of fundamental rights the code has laid down certain limitations with regard to searches and seiWures which are– 1. The thing or document to be searched or seiWed must be explicitly

mentioned. 2. A magistrate other than a district magistrate or a chief judicial

magistrate cannot issue a search warrant with respect to a document of postal authority.

3. It is expected that judicial discretion be exercised by the magistrate while issuing search warrants.

4. The provision to section 100 of Cr.P.C. needs to be complied with while exercising search and seiWures.

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Chapter 19 Right of Private Defence of Person and property

1. In a civiliWed society, the defence of person and property of every member

thereof is the responsibility of State. Consequently when an individual or her property is faced with a danger and immediate aid from the State machinery is not readily available, that individual is entitled to protect herself and her property. Right of private defence is a well-recogniWed right by the criminal jurisprudence of all civiliWed countries within certain reasonable limits.

2. The right of private defence is a provision which creates a right for the citiWen to protect her person as well as her property and of others, from aggression and invasion by others. The penal provisions have made it abundantly clear that in exercise of this right of private defence, a person can cause grievous hurt or even death of the aggressor. It however is subject to limitations imposed by the law itself.

3. In Indian law, the rights of private defence have been codified and enumerated in chapter IV sec 96 to sec 106 of the IPC.

4. General Principal of right of Private defence:

i. The right of private defence is used as a shield and not as a weapon of offence.

ii. Private defence of the body of a person necessitates only when there is a reasonable danger which must be founded on facts.

iii. The right of private defence is conferred on the aggresse and not the aggressor. In other words, right of private defence is not available in retaliation or in revenge.

iv. Right of private defence is not available when there is enough time to approach the law enforcing authorities.

v. Right of private defence commences with necessity and ends with the end of necessity.

vi. Even apprehension of offence being committed, is sufficient for the exercise of right of private defence.

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vii. Exercise of right of private defence is a question of fact but the existence of right of private defence is a question of law.

5. Ucts against which there is no right of private defence-Guiding Principles

i. There is no right of private defence against an act which does not reasonably cause apprehension of death or grievous hurt, if done, or attempted to be done, by a Public Servant or by the direction of a Public Servant, acting in good faith under color of her office, though the act/ direction may not strictly justifiable by law. (Sec 99 IPC)

NOTE: Acts by Public Servant which are illegal or without jurisdiction, are not a protection to public servant under color of her office.

ii. There is no right of private defence in cases where there is time to seek recourse to public authorities for protection. (Sec 99 IPC)

Example: a. Search by police officer without search warrant believing that the

place has deposit of stolen property, though not strictly justified by law, no resistance should be given by the owner or occupier of the place and there is no right of private defence.

b. In a case involving old land dispute, one party (accused) offered resistance to prevent the other from ploughing the land and on refusal went up to the place where the other was sitting without arms and inflicted stick blows causing death. Here it was held that accused had no right of private defence and the accused may be charged for murder.

c. When a Head Constable without warrant went to the house of the accused and tried to molest womenfolk, accused was justified in inflicting injury on the said Head Constable.

iii. In following conditions there is no right of private defence: a. In a free fight, b. Chasing a person running away from the scene of

occurrence, c. When both sides indulged in pitched battle, d. A person can not take law in their own hands to remove

trespasser,

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e. In offence u/s 24 Cattle Trespass Act, f. For obstruction of right of easement of light and air.

6. Extent to which the right of private defence may be exercised:

i. The right of private defence does not extend to inflicting more harm than necessary for the purpose of defence. (Sec 99 IPC); though it is also held that it is not always possible for the aggresse to weigh their blows in golden scales in order to inflict assault on the aggressor.

Example: a. When accused was attacked with a lathi that doesn’t appear

dangerous, and in the exercise of the right of private defence, he gave deadly blows with a hammer which caused the death of the attacker, it is said that accused exceeded his right of private defence.

b. From a large number of injuries on the victim, it is manifest that a preplanned attack was made and hence plea of private defence can be safely overruled.

7. When does the right of private defence extend to causing death?

i. Right of private defence of the Body: In following seven conditions, right of private defence of the body extends to the voluntary causing death (Sec 100 IPC):

1. Such an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault;

2. Such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault;

3. An assault with the intention of committing rape; 4. An assault with the intention of gratifying unnatural lust; 5. An assault with the intention of kidnapping or abducting; 6. An assault with the intention of wrongfully confining a person,

under circumstances which may reasonably cause him to apprehend that he will be unable to have recourse to the public authorities for his release.

7. An act of throwing acid or an attempt to throw acid which may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such act.

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ii. Right of private defence of Property: In following four conditions, right of private defence of property extends to the voluntary causing death (Sec 103 IPC)

1. Robbery; 2. House-breakingibyinight; 3. Mischiefi byi firei committedi oni anyi building,i tenti ori vessel,i whichibuilding,itentiorivesseliisiusediasiaihumanidwelling,ioriasiaiplaceifori

theicustodyiofiproperty; 4. Theft,imischief,iorihouse-trespass,iunderisuchicircumstancesiasimayireasonablyicauseiapprehensionithatideathiorigrievousihurtiwillibeithei

consequence,iifisuchirightiofiprivateidefenceiisinotiexercised.i 8. Burden of Proof:

i. It is a salutary principle of criminal jurisprudence that burden of proof of right of private defence is on the accused.

ii. Burden of proof of self-defence by the accused can be discharged by showing ‘Preponderance of Probability’. It is not necessary to prove right of private defence beyond reasonable doubt which is the cardinal principle of criminal jurisprudence but accused has only to make a prima facie case.

9. It is again emphasiWed that object of right of private defence is not punitive but preventive. It is defensive in nature and is based on the principle that every person has been endowed with certain amount of self-defence and will not as such flee away when attacked by criminals. Right of private defence is a valuable right but should not be misused.

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Chapter 20 Crime Ugainst Women Under Indian Laws

iSwami Vivekananda had said, “That country and that nation that do not

respect women have never become great, nor ever be in future”. In the present scenario, the violence and the increasing crimes against

women are witnessed by everyone across the world in some or the other manner. Such incidents are a matter of grave concern and its decimation is absolutely necessary so that the women of India could live with respect, honour, dignity, liberty and peace in an atmosphere free from atrocities, denigration and heinous crimes.

There are many legal provisions which punish the culprits committing offences against women. The Indian Penal Code though, provides provisions for women as a victim of many crimes such as murder, robbery, theft, etc. but there are certain crimes which are characteriWed as ‘Offences Against Women’. With the need of the hour, many new socio-economic offences have been enacted accompanied by various amendments in the existing laws with an objective to combat these crimes effectually.

1. Classification of Laws related to Crime against Women

The laws associated with the crime against women may be classified into the following two categories:

i. Crimes against Women under the Special and Local Laws (SLL): Following are some Acts comprising of special provisions to protect women and their interests-

a. The Immoral Traffic (Prevention) Act, 1956 b. The Immoral Traffic (Prevention) Act, 1956 c. The Dowry (Prohibition) Act, 1961 d. The Child Marriage Restraint Act, 1929 e. The Indecent Representation of Women (Prohibition) Act, 1986 f. The Commission of Sati (Prevention) Act, 1987 g. Protection of Women from Domestic Violence Act, 2005

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h. The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013

ii. Crimes against Women under the Indian Penal Code, 1860 (IPC): The Indian Penal Code, 1860, lays down the provisions to penaliWe the

culprit for the heinous offences against women. Various sections under IPC that specifically deal with such crimes are as following:

a. Acid Attack (section 326A and 326B) # Added by Criminal Law (Amendment) Act 2013.

b. Rape (Sections 375, 376, 376A, 376B, 376C, 376D and 376E) # Sections 375, 376, 376A to E substituted for sections 375, 376,

376A to D by Criminal Law (Amendment) Act 2013. c. Attempt to commit rape (Section 376/511) d. Kidnapping and abduction for different purposes (Sections 363-

373) e. Murder, Dowry death, Abetment of Suicide, etc. (Sections 302, 304B

and 306) # Dowry deaths and bride burning are sinful acts which still

prevail in the Indian society. It is a symptom of a special social illness and are unfortunate developments of our society. For this serious matter, the special provision was inserted under IPC through sec 304B which deals with dowry deaths.

# Section 304B (1) defines dowry death whereas clause (2) lays down its punishment which is not less than seven years and may extend to life imprisonment.

Essential Ingredients of Dowry Death The following ingredients of the offence need to be established-

o The death of a woman must be caused by burns or bodily injury or otherwise than under normal circumstances.

o Such death must occur within the period of seven years of marriage.

o The woman must have been subjected to cruelty by her husband or any other relative of her husband.

o Such cruelty must be in connection with demand of dowry.

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o Such cruelty must be shown out soon before her death. f. Cruelty by husband or his relatives (Section 498A)

# A separate chapter of IPC deals with the issues of cruelty by a husband or his relatives under Section 498A, IPC.

# The objective behind the introduction of this provision was to punish the husband and his relatives who torture, ill-treat and harass a woman with a view to forcing her or any other person related to her to meet any unlawful demands.

# The essence of this section is that it has given a new dimension to the concept of cruelty for the purpose of matrimonial relief.

# Not every type of cruelty will attract this section’s provisions. Inclusions are specifically mentioned under this.

# The punishment for this offence is imprisonment for a term which may extend to three years with fine.

g. Outraging the modesty of women (Section 354) # Section 354, IPC deals with the offence of molestation i.e. assault

to woman with intent to outrage her modesty. This section aims to protect women against any sort of indecent or filthy behaviour by others which is derogatory to her modesty.

# It is not specifically defined under IPC what constitutes an outrage to woman’s modesty. However, the court has interpreted it in various cases. According to the Supreme Court, modesty is an attribute associated with female human beings as a class. Modesty is said to be outraged by such an act of offender which shocks and recogniWes as an insult to female decency and dignity.

# As per IPC, if any person uses criminal fore upon a woman with an intention to outrage the modesty of a woman, he is deemed to be punished with an imprisonment of not less than one year which may extend upto five years with fine.

h. Sexual harassment (Section 354A) # This section has been added by Criminal Law (Amendment) Act

2013. A person shall be guilty of the offence of sexual

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harassment against a woman in the following circumstances- i. If he makes physical contact, unwelcoming advance or

explicit sexual act; ii. Demands or requests for sexual favours;

iii. Shows pornography against the will of a woman; iv. Make sexually colored remarks.

The punishment for the offences specified in sub clause from (i) to (iii) is the rigorous imprisonment for a term which may extend to three years or with fine or both and in the case of sub clause (iv), the punishment is imprisonment for a term which may extend to one year or with fine or both.

i. Assault on women with intent to disrobe a woman (Section 354B) # This section penaliWes the offence of assaulting or using criminal

force to a woman or abetting any such act with an intention to disrobe or compel her to be naked, with a punishment of not less than three years which may extend to seven years with a fine. It is a gender specific offence i.e. only a man can be punished under this section. (Added by Criminal Law (Amendment) Act 2013)

j. Voyeurism (Section 354C) # This offence came into existence after Nirbhaya Rape Case,

2012. The word ‘voyeurism’ means appeasement derived from observing the genital or sexual acts of others usually secretly. This provision is divided into two parts. Firstly, when a person watches or captures image of a woman engaging in some private act and secondly, when the person disseminate or spread such image. The first offence is punishable with imprisonment of not less than one year which may extend upto three years with fine. The second offence is punishable with imprisonment of not less than three years which may extend upto seven years with fine. It is a gender specific offence i.e. only a man can be punished

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under this section. (Added by Criminal Law (Amendment) Act 2013)

k. Stalking (Section 354D) # The term ‘stalking’, generally means the act of following or

trying to contact despite disinterest of woman. This section contains two offences. Firstly, where a man follows or contacts or attempts to contact a woman repeatedly despite her clear indication of disinterest and secondly, where a man monitors a woman’s use of internet, email, or any other form of electronic communication.

For the first conviction, the punishment prescribed is imprisonment for a term which may extend to three years with fine. The punishment for second conviction may extend up to five years of imprisonment with fine. It is a gender specific offence i.e. only a man can be punished under this section. (Added by Criminal Law (Amendment) Act 2013)

l. Importation of girls upto 21 years of age (Section 366B) m. Word, gesture or act intended to insult the modesty of a woman

(Section 509) # An act which is done intending to insult the modesty of woman

which may not necessarily involve any physical force is brought under this provision through Section 509.

# This section intends to deter any kind of aggression into a woman’s modesty whether by any word, gesture or act or by intruding upon the privacy of such woman. This section is also referred as the ‘Eve Teasing Section’.

# As per IPC, any person who commits an offence under Section 509 shall be punished with simple imprisonment for a term which may extend to three years with fine.

Notwithstanding the number of laws to protect and safeguard the rights and interest of the women, the rate of crime against women and victimiWation is

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still very high which is a shame to every society. It implies that only laws are not responsible to regulate and control the rise of crimes against women in our society. The suppression of evil eyes on women and inculcation of social ethics, morals and values, respect and honor in every human being towards women is the need of the hour and is a supplementing factor that can equally contribute in reducing the number of crimes against women. However, there is an exigency of more strict and stringent laws so that any person intending to commit such crimes couldn’t muster up the courage to act in furtherance of his intention.

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Chapter 21 Reformative and compensation Provisions

in Criminal Procedure Code, 1973

1. Reformative theory of punishment believes in rehabilitation of the offenders and not in favor of punishment to those who innocently or circumstantially get involved in crimes. In this context our Constitution also provides for beneficent legislations.

a. Constitutional provisions: i. Treatment of offenders in the Directive Principles of the State

Policy embodied in Part IV of the Constitution of India; ii. Constitution has Inclusion of the subject of prisons and allied

institutions in the Concurrent List of the Seventh Schedule to the Constitution of India; and

iii. Provisions for probation law to Enactment of uniform and comprehensive legislation embodying modern principles and procedures regarding reformation and rehabilitation of offenders. (Art 21)

iv. There shall be in each State and Union Territory a Department of Prisons and Correctional Services dealing with adult and young offenders – their institutional care, treatment, aftercare, probation and other non-institutional services. (Art 45)

v. The State shall endeavor to evolve proper mechanism to ensure that no under trial prisoner is unnecessarily detained. This shall be achieved by speeding up trials, simplification of bail procedures and periodic review of cases of under trial prisoners. Under trial prisoners shall, as far as possible, be confined in separate institutions. (Art 47, Art 21).

vi. Since it is recogniWed that imprisonment is not always the best way to meet the objectives of punishments the government shall Endeavour to provide in law new alternatives to imprisonment such as community service, forfeiture of property, payment of compensation to victims, public censure,

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etc. under clause (3) of Article 15, clauses (e) and (f) of Article 39, Articles 45 and 47 imposes in Indian constitution.

2. Law of Probation in CrPC - Position and relevance of Sec. 360 and section 27 CrPC:

a. Section 360 of the Criminal Procedure Code –i i. The offences referred to in this section are those punishable with

fine only or with imprisonment for a term of seven years or less when any person is not under twenty- one years of age, or when any person under twenty- one years of age or any woman is- convicted of an offence not punishable with death or imprisonment for life, and no previous conviction is proved against the offender,

ii. The power given to the Court is to release the accused oniprobationiofigoodiconductioriafter due admonition, instead of passing sentence.

iii. There must first be a finding of conviction. iv. The section is clearly not intended to be used as an alternative to

giving the accused the benefit of the doubt. v. Powers under this section are exercisable by all Courts.

b. Section 27 of the Criminal Procedure Code – i. This section is applicable to any person under the age of 16 years.

ii. Offence committed must be any offence not punishable with death or imprisonment for life.

iii. Offence may be tried by the court of a Chief Judicial Magistrate or by any court especially empowered under the Children Act, 1960 or any other law for the time being in force providing for the treatment, training and rehabilitation of youthful offenders.

3. The Victim Compensation in India a. Under the Indian Criminal Justice administration, an offence is

presumed to be committed against the State even though it is actually committed against the aggrieved person or the victim.

b. Since the approach is that the State is the Prosecutor, the only focus is on the determination of guilt or innocence of the accused and not whether the victim’s demand for justice is fulfilled or not.

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c. Therefore, through the Criminal Law (Amendment) Act of 2008, the Victim Compensation Scheme was launched under the Code of Criminal Procedure.

d. In India, the trial court has been empowered to pass an order for payment of compensation from the accused to the victim besides the normal imprisonment and fine paid by him.

e. Sections 357 and 357U CrPC (inserted by Criminal Law (Amendment) Act of 2008) specifically deal with the powers of the trial to grant compensation and costs to the victim.

f. According to Sec 357 CrPC, if a court passes any sentence that includes a payment of fine, the court may order that the fine be used for any of the following purposes:

i. To defray any expenses incurred by the victim towards the prosecution of the accused.

ii. To pay any compensation to the victim for any loss or injury caused to the victim by the offence and as decided by the court.

iii. The fine amount can be used to pay such compensation and later can be recovered from the accused itself.

iv. In case of any death caused due to the act of the offender, the family of the victims are entitled to damages or compensation under the Motor Vehicles Uct, 1988, the court may order for the utiliWation of fine amount towards the payment of such compensation.

v. When any person is convicted of any offence which includes theft, criminal misappropriation, criminal breach of trust, or cheating, or of having dishonestly received or retained, or of having voluntarily assisted in disposing of stolen property, fine amount may be used in compensating any bona fide purchaser of such property for the loss of the same.

g. Victim Compensation Scheme Besides Sec 357 CrPC, a newly inserted provision Sec 357A CrPC

provides for Victim Compensation Scheme to be prepared by the State

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Government and Central Government. The key points to under this provision can be enumerated as follows:

i. Every State Government is required to prepare a scheme for the purpose of compensating victims who have suffered loss or injury due to any offence committed against them.

ii. For the purpose of this scheme, the State is required to act in coordination with the Central Government.

iii. The compensation to be paid through this fund can be availed by the dependent family members of the victim if the offence committed has caused the death of the victim.

iv. Funds can be used in cases of rehabilitation, to meet the rehabilitation expense of the victim.

v. The courts are empowered only to decide whether compensation should be granted or not.

vi. The amount of compensation is to be determined by the State Legal Services Authority or District Legal Services Authority on a case to case basis.

vii. If the trial Court, at the conclusion of the trial, is satisfied, that the compensation awarded under sec 357 CrPC is not adequate for such rehabilitation, or where the cases end in acquittal or discharge and the victim has to be rehabilitated, it may make a recommendation for compensation.

viii. The provision also allows compensation in cases where the accused is not identified and no trial takes place against any person but the victim is still suffering. The victim in such cases may make an application to the District Legal Services Authority for payment of compensation.

ix. After receiving the recommendation from the court as aforesaid or any application by the victim, the State or the District Legal Services Authority shall, after due enquiry award adequate compensation by completing the enquiry within two months.

x. The State or the District Legal Services Authority, as the case may be, to alleviate the suffering of the victim, may order for immediate

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first-aid facility or medical benefits to be made available free of cost on the certificate of the police officer or a Magistrate.

xi. Lastly, Sec 357B CrPC, also added through the 2008 Amendment Act, provides that the compensation to be paid by the offender to the victim must be any amount besides the actual amount imposed as fine upon such person. It means that any amount ordered by the court to be paid as fine shall be distinct from what will be ordered by the Legal Services Authority to be paid as compensation.

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Chapter 22 The Indian Evidence Uct 1872

Un Introduction

1. The Indian Evidence Act 1872 is a branch of “Adjective “ law. In its essence, it is procedural by nature.

2. IEA is divided into 11 chapters and 167 sections. 3. It applies to all Judicial proceeding in or before a Court. But not applicable to

i. Departmental Disciplinary Proceedings ii. Domestic Tribunals

iii. Proceeding before Arbitrators iv. Affidavits presented to Court or an officer.

4. IEA tells us: a) What are facts-in-issue. b) What facts are relevant. c) What facts are admissible. d) What facts may be proved. e) What facts may not be proved. f) What kind of evidence may be given of a fact which is to be proved. g) Who is to produce such evidence how is to be given.

5. Basic rules of evidence: i. Best evidence must be produced.

ii. Hearsay evidence are not admissible. NOTE: “Hearsay Evidence” means ‘derivative or second hand or unoriginal evidence’ that is, evidence given by a person not on the basis of his own knowledge but on the authority of another person.

iii. All fact, except the contents of documents, may be proved by oral evidence. (sec 59)

iv. Oral evidence must be direct. (sec 60) 6. Evidence - What it is ?

a) It is the usual means of proving or disproving a fact under trial or inquiry.

b) It does not include arguments.

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c) It tends to convince the Court of the truth or otherwise of the matter.

d) The definition given of evidence in sec 3 of IEA is a narrow one. It only includes

i. Oral evidences – evidence (statements) from persons, namely witnesses.

ii. Documentary evidences – evidence from documents; This definition of evidences given in IEA does not include real

evidences. Real evidence is evidence from things other than documents, produced for inspection by the Court. Example: Revolver, Dagger, Blood stained clothes etc.

7. A Court is to consider the ‘Matters before it’ and not only evidences while deciding whether or not a particular fact has been proved.

a. “Matters before Court” – these include evidences as defined in IEA as well as certain non-evidence material, such as:

i. Material objects ii. The demeanor of witness

iii. Local inspection held by a judge/Magistrate 8. What facts to be proved? (Sec 5)

i. Facts –in –Issue • It means the matters in dispute. These are the facts which a

party to a litigation must prove in order to succeed in its claim or defence. These are also called ‘ Principal Facts’. Example: ‘A’ is charged with having murdered ‘B’. A pleads not guilty. The facts- in –issue are:

i. That B died. ii. That it was a homicidal death.

iii. That A caused death of B. iv. That A intended to kill B

“X” was an eye–witness to the occurrence. The testimony of X was direct evidence.

ii. Relevant facts [chapter II: sec 6 to sec 55, IEA]

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• These are those facts which have some sort of connection or relationship with the Facts-in –issue.

• Statements • Judgments (sec 40 to sec 444) • Opinion of third persons for example experts; (sec 45 to sec 51) • Character of persons (sec 52 to sec 55)

9. What facts need not to be proved: iii. Judicially noticeable facts [chapter III: sec 56, sec 57, IEA]

a) ‘India is a country' need not to be proved. b) ‘Tiger eats meat’ need not to be proved.

ii. Judicially admitted facts [chapter 3: sec 58 IEA] a) ‘A’ has taken Rs 100000/- from ‘B’. B admits that he has

taken this money from ‘A’. This part of having taken money needn’t be proved.

b) In a case of murder, accused ‘A’ has admitted to going to the victim’s home on the day of murder. This part of presence of accused A at the home of victim on the day of her murder need not be proved.

10. By what means a Fact is to be proved? i. By evidence

ii. By other non-evidence matter 11. By whom a Fact will be proved? [chapter VII, IEA]

12. Who will not be allowed to prove a Fact? [chapter VIII, IEA]

13. All legal evidences are either Direct or Circumstantial. a. Direct Evidence: when the principal fact is attested directly by

witnesses, things or documents. To all other forms of evidences, the term Circumstantial evidence is applied.

b. Circumstantial Evidence: ordinarily means evidence of a fact from which some other fact is inferred. Here the fact-in-issue is indirectly inferred rather than directly perceived.

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Example: preparation, motive, conduct, opportunity etc. Case Example:

i. ‘A’ was charged with the murder of ‘B’. ii. ‘Prosecution Witness 1(PW1)’ proved that A had enmity with B.

iii. PW2 testified that B was last seen in the company of A. iv. PW3 deposed that B was wearing ornaments (a ring and a

chain). v. PW4 stated that A was seen with a big knife.

vi. PW5 (Autopsy Surgeon) opined that the injury sustained by B might have been caused by a knife.

vii. PW6 (a Jeweler) gave out that A sold the above ornaments to her on the day next to murder.

RESULT: A was found guilty of the charge. The case hinged entirely on circumstantial evidence.

14. Evidence are also classified in Substantive and Corroborative Evidences. • Substantive Evidences: means the evidence which may form the

foundation of a judicial decision. Example: Dying declaration, Statement or confession of a witness u/s 164 CrPC before a Judicial Magistrate.

• Corroborative Evidences: Corroboration literally means the act of corroborating or confirming. The evidence by means of which corroboration is made, is called ‘Corroborating’ or ‘Corroborative evidence’. – Corroborative evidence may be direct or circumstantial. – When the Court should ask for corroboration, it is more a matter

of prudence and practice than of law. Example: FIR, oral testimony of a witness etc.

15. Proof of Documentary Evidences: a. Content of a Document can be proved by two methods:

# Primary Evidence – it means the document itself produced for inspection of the Court. [chapter V: sec 62, 64 IEA]

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# Secondary Evidence – documents which the law permits to be given in absence of Primary evidence after due explanation. [chapter V: sec 63, 65 IEA] Example of Secondary Evidence:

a) A certified copy b) Copy made from the original by mechanical process c) Copy made from or compared with the original d) Oral accounts of the contents

16. Public Documents: what are these? [chapter V: sec 74 IEA] o Public documents are documents forming the acts or records of the acts

of: i. Sovereign authority

ii. Official bodies and tribunals iii. Public officers – legislative judicial or executive

o All other documents are private documents. o Following is the list of public documents (illustrative and not

exhaustive): i. A charge sheet u/s 173 CrPC

ii. Birth and Death Register iii. FIR iv. Judgment of a Court v. Order Sheet etc.

17. Expert evidence: what are these? [chapter V: sec 45,46 IEA] a. Who is an expert?

i. She is a person skilled in that subject. ii. Expert is one who possesses superior knowledge and practical

experience. NOTE: It may not depend upon any degree.

b. Following is the list of experts (illustrative and not exhaustive): # Medical expert # Finger print expert # Handwriting expert # Arms expert

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# Entomologist # Photographer etc.

18. Relevancy and Admissibility of evidences: a. These two expressions, Relevancy and Admissibility, are often used

with respect to Evidences produced before a Court during a trial. These two expressions are not identical.

b. Relevant facts are those facts which have some sort of connection or relationship with the Facts-in –issue. In order to find out whether or not a fact is relevant, one is to check up whether or not, it falls within the purview of any of the sections 6 to 55 of IEA. If an evidence comes within the ambit of any such section, it is relevant.

c. Admissibility of a fact/evidence means that a particular fact is relevant u/s 6 to 55 IEA and also that its reception is not prohibited. If reception of any fact is barred under the provisions of IEA, then the fact becomes inadmissible, not withstanding its relevancy. For example, u/s 122, 123, 124 and 126 IEA privileged communication reception as an evidence is barred, hence this will not be admissible as an evidence however relevant it may be.

d. On the other hand, there are certain facts which may not be relevant but IEA permits them to be received in evidence, as for example- questions to test the veracity of a witness and to discover who she is and what is her position in life, is vide sec 146 IEA.

19. Individual Evidence permitted to be produced in Court: i. Admission

ii. Confession iii. First Information Report (FIR) iv. Confessional FIR v. Statement to police u/s 161 CrPC

vi. Dying declaration (Sec 32 IEA) vii. Expert evidence (Sec 45 IEA)

viii. Electronic evidence

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I. Admission: legal definition o It has been defined in sec 17, along with 18, 19 and 20 of IEA. In

short, Admission is- a. A statement, oral or documentary b. Which gives rise to an inference. c. About any fact-in –issue or relevant fact d. Made by a party to the proceeding

o Admission is a (i) concession or voluntary acknowledgement; (ii) made by a party, (iii) of the existence of certain facts, (iv) which are in dispute or relevant to an issue involved in the case.

II. Confession - what it is ?

o A confession is a statement, admitting the offence or substantially all the facts which constitute the offence.

o A confession is a total acknowledge of guilt. o While Admission is the genus, confession is a species. o All confession are admissions but all admissions are not

confession. o Confession is applicable in the context of a crime only while

Admission is applicable for both Civil as well as Criminal matters.

o Confession is of two kinds: (i) Judicial and ii) Extra Judicial # Judicial confession- are those which are made before a

magistrate or in course of legal proceedings. A confession recorded by a JM I Class, u/s 164 CrPC is a judicial confession. Section 164 CrPC applies to the stage of police investigation. During inquiries/trials, accused may be examined by the Court u/s 313 CrPC.

# Extra Judicial confessions- are those made to or before persons or group of people other than before Magistrate or in Court. Example: in a failed dacoity attempt, villagers chased dacoits and one of the dacoits was apprehended by the villagers. Dacoit admitted before villagers that he

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had taken part in dacoity. That admission of guilt by dacoit before the villagers was an extra judicial confession.

o Confession – its evidentiary value # Judicial confession- if found to be true and voluntary,

may form the sole basis of conviction without the requirement of corroboration.

# Extra Judicial confession- should be examined with greater care and caution and are generally not rated as high as the judicial confession. Court looks for corroboration as a rule of prudence.

# Confession and Police: • a confession made to a police officer is

inadmissible vide sec 25 IEA. • A confession made by an accused while she is in

police custody can not be proved against her, unless she made it in immediate presence of a Magistrate. (sec 26 IEA)

• Sec 27 IEA is an exception to the prohibition imposed u/s 25 & 26 IEA. As per this section, if an accused, while in police custody, makes a statement, that part of the statement, whether confessional or not, which leads to discovery of material fact (like- revolver used in crime, body of deceased, ornaments the deceased was wearing etc.), may be received in evidence.

III. First Information Report (FIR): FIR is considered as corroborative evidence. It corroborates the maker of the FIR when she gives evidence in Court as to matters mentioned in the FIR.

IV. Confessional FIR: it is not a substantive piece of evidence. If (i) it has been made in police custody, then it is hit by sec 25 IEA (subject to exception u/s 27 IEA); and (ii) it has not been made in police custody- confessional part of FIR hit by sec 25 IEA but non-confessional part of

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FIR may be proved. It will be only of contradictory or corroborative value.

V. Statement to Police u/s 161 CrPC: it is not admissible as an evidence in the Court except when it is a Dying declaration (sec 32 IEA) or leads to discovery of material fact (sec 27 IEA). Although these statements can be used for contradiction of prosecution witness u/s 145 IEA.

VI. Dying declaration: It is the statement, oral or written of a person, relating to her death or as to the circumstances leading to her death, when that person dies subsequent to the making of such statement. Dying declaration is admitted in evidence based on the presumption that truth sits on the lips of dying person.

a. Section 32(1) IEA declares that Dying Declaration is relevant. There is no prohibition, either express or implied, in the IEA, against dying Declaration being received in evidence. Therefore it is admissible.

b. It is a kind of hearsay evidence, because the declarant has died and somebody else appears to say what the deceased stated about her death. Declarant being dead, veracity of her statement cannot be tested by cross examination. Even then, it is received as in evidence and as such it is an exception to the rule that hearsay evidence is inadmissible (sec 60 IEA).

c. Condition for reception of Dying Declaration in evidence – i. It must relate either to the cause of death or to any of the

circumstances of the transaction which has resulted in the death.

ii. Death means the death of the declarant herself. iii. Declarant must have died after the declaration. iv. The death may be homicidal or suicidal or even

accidental. v. It is not the requirement of the Indian law that the

person making the Dying Declaration should have been under expectation of death at that point of time.

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vi. Proximity of time between declaration and death is important but distance of time alone cannot render a Dying Declaration irrelevant. It would depend upon the circumstances of each case.

d. Who may record Dying Declaration- i. Generally speaking, it may be recorded by anybody,

including a police officer or a private individual. Law has not indicated who is competent or incompetent to record.

ii. It has to be remembered that “admissibility is one thing, credibility is another”.

iii. A Magistrate inspires greater confidence and deserve more credence. Magistrate may be a Judicial Magistrate or an executive Magistrate.

NOTE: In practice, Judicial Magistrates are called upon to hold T.I. Parades and Executive Magistrates are invited to record Dying Declaration.

e. A dying declaration is generally reduced to writing but it may also be oral. There is no prescribed form for Dying Declaration. Record replies in her own words and be satisfied that proposed declarant is in a fit condition to make a statement. She should be in senses.

f. In case of oral Dying Declaration, proof of it becomes difficult because the witness can hardly be expected to remember what the declarant actually said.

g. Dying Declaration should be subjected to strictest scrutiny. If after such scrutiny, the Court is satisfied that the Dying Declaration is truthful and reliable, it may be acted upon without corroboration and it may form the sole basis of conviction in a criminal trial.

h. If the victim chances to live, her statement cannot be used as a Dying Declaration.

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VII. Expert Evidence: These are treated as corroborative evidence and are admissible.

VIII. Electronic Evidence: a. Advancement of information technology and scientific temper

must pervade the method of investigation. Scientific and electronic evidence can be a great help to an investigating agency.

b. Section 54-A of the CrPC provide for videography of the identification process and proviso to Section 164(1) CrPC provide for audio video recording of confession or statement.

c. However, Standard of proof of its authenticity and accuracy in case of electronic evidence has to be more stringent than other documentary evidence.

d. Electronic evidence was held to be admissible subject to safeguards adopted by the Court about the authenticity of the same. The Supreme Court of India, in the judgment (Shafhi Mohammad Vs. The State Of Himachal Pradesh, 2017) has rationaliWed the law relating to the admissibility of the electronic evidence particularly in view of the provision of Sec. 65B of the IEA.

e. Electronic evidence authenticity and procedure for its admissibility may depend on fact situation such as whether the person producing such evidence is in a position to furnish certificate u/s 65B IEA.

NOTE: Provisions under Sections 65A and 65B of the Evidence Act are by way of a clarification and are procedural provisions.

4. Examination of Witness a. ‘Witness’ means a person who gives evidence before a court during

any trial of Inquiry. b. ‘Examination’ in the context of ‘Examination of Witness’ implies

’interrogation’. It generally consists of putting number of questions to the witness.

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c. All statements which the Court permits to be made before it by witness are called ‘Oral evidence’. These should be direct, that is, testimony must be of a person who perceived the fact deposed through her senses.

d. Part III, Chapter X, Section 135 to Section 166 of The Indian Evidence Act Deals with the Provisions of Examination of witnesses.

e. Emphasis should be given to the following aspects: i. Order of examination of witnesses;

ii. Stages of examination of witnesses; I. Order of Examination of Witnesses:

• In Civil Cases, the order of examination is regulated by Code of Civil Procedure. The general rule is that the party upon whom the burden of proof rests should begin.

• In Criminal Cases, the legal burden of proof invariably lies upon the prosecution to prove the charge against the accused beyond reasonable doubt and hence the prosecution always begins. NOTE: The prosecution should examine witnesses in their proper order so as to bring out facts in their legal sequence. Generally, eye witnesses, if any, are examined first and there after the other witnesses, such as post occurrence witness, expert witnesses and formal witnesses.

II. Stages of examination of witnesses (sec 137 IEU):

• There are three stages of examination of a witness – i. Examination–in-chief - The examination of a witness, by

the party who calls him, shall be called his examination-in-chief.

ii. Cross examination - The examination of a witness by the adverse party shall be called his cross-examination.

1. Re-examination - The examination of a witness, subsequent to the cross-examination by the party who called him, shall be called his re-examination. The purpose of Re-Examination is to seek explanation or

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clarification on matters that arose during the Cross-Examination and may be unfavourably construed against the party which called the witness.

Re-examination can not be allowed for new matters except with the leave of the Court and if any new matter is permitted to be introduced during Re-Examination, the adverse party acquires the right to Cross-Examination upon the matter.

III. Order of examination: 1. A witness is first Examined–in-Chief. 2. She shall thereafter be Cross Examined, if adverse party

so desires. 3. She may then be Re-Examined, if the party calling her so

desires. f. Leading Questions (Sec 141 to Sec 143 IEA):

• Meaning: The expression "Leading Questions" literally means a question which itself suggest answer.

• Definition: Section 141 of the IEA defines 'Leading Questions' as, “Any questions suggesting the answer which the person putting it wishes or expects to receive is called a leading question." Examples: a) Is your name so and so? b) Do you reside in such and such a place? c) Are you not in service of such and such person? d) Have you not lived with him for so many years? NOTE: It is clear that under this form every sort of information may be conveyed to the witness in disguise. It may be used to prepare him to give the desired answers to the questions about to be put to him; the examiner, while he pretends ignorance and is asking for information is, in reality, giving instead of receiving it.

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• When leading Questions must not be asked (Section 142 IEA)? : Leading questions must not be asked in an Examination-in-Chief, or in Re-Examination, except with the permission of the Court. The Court shall permit leading questions as to matters which are introductory or undisputed or which have, in its opinion, been already sufficiently proved.

• When Leading Questions may be asked? According to Section 143 of IEA, Leading questions may be asked in Cross-Examination.

f. Hostile Witness: • The term ‘hostile witness’ does not occur in IEA. • Hostile witness means a witness who is permitted by Court to be

cross examined by the party which called her. (sec 154 IEA)

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Chapter 23 How to set criminal law in motion?

1. Every individual who possesses the knowledge of commission of crime can set

law into motion. It is a well recogniWed principle of criminal jurisprudence that anyone can set or put the criminal law into motion except where the statute enacting or creating an offence indicates to the contrary.

2. In certain circumstances as mandated by law, individuals are duty bound to set law into motion. It is not only a moral duty of a citiWen to report a crime to authorities but also a legal duty. Failure to perform such duty may lead to liability under the Indian Penal laws.

3. Locus standi of a complainant is a concept foreign to criminal jurisprudence. In other words, the principle that anyone can set or put the criminal law in motion remains intact unless contra-indicated by a statutory provision.

4. This general principle of anyone setting law into motion is founded on a policy that:

i. An offence i.e. an act or omission made punishable by any law for the time being in force (Sec 2 (n), CrPC) is not merely an offence committed in relation to the person who suffers harm but is also an offence against society.

ii. The society for its orderly and peaceful development is interested in the punishment of the offender.

iii. Prosecution for offences is undertaken in the name of the State representing the people because it would exclude any element of private vendetta or vengeance.

iv. If such is the public policy which brings an act or omission made punishable by law, to the notice of the authority competent to deal with it, it is immaterial and irrelevant that who brings the matter before the authority unless the statute indicates to the contrary.

v. Punishment of the offender in the interest of the society being one of the objects behind penal statutes enacted for larger good of the society, right to initiate proceedings cannot be circumscribed or fettered by

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putting it into a straight jacket formula of locus standi, save and except specific statutory exception.”

5. How to set the criminal law in motion? A. Criminal law will be set at motion on reporting of the crime to the nearest

Station House Officer (SHO)by any individual who possesses the knowledge of commission of crime. The Code of Criminal Procedure (CrPC) has classified the offences into cogniWable and non-cogniWable offences. There is different procedure which is to be followed by an individual in each case:

i. If the offence reported is in the nature of a cognizable offence, then it is incumbent upon the SHO to register the crime, and a copy of the FIR will be handed over to the informant, free of cost (sec 154 CrPC).

ii. In cases where the offence reported is non-cognizable in nature, the crime will be registered in a separate Register kept at police station and the informant will be referred to the Jurisdictional Magistrate (sec 155 and 200 CrPC). If the Magistrate is satisfied that a prima facie case is made out, the Magistrate will direct the police to investigate the matter.

Besides the above discussed procedure : iii. If any person possesses any relevant evidence for prosecution of the

accused, the person may prefer a complaint to the Jurisdictional Magistrate directly (sec 200 CrPC), who shall take cogniWance of the offence, examine the complainant and the witnesses, if any, and on a prima facie satisfaction of commission of an offence process will be issued against the accused.

B. However, there are exceptions to this scenario. Sections 195 to 199 of CrPC are exceptions to be general rule that any person having knowledge of the commission of an offence, may set law in motion by a complaint, even though she is not personally interested or affected by offence. Hence though a person is having information about the crime, Magistrate will not take cogniWance of an offence unless conditions mentioned under these sections are satisfied:

Sec 195 – offences against public servant under Chapter X IPC. o Only affected public servant can set law in motion.

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Sec 196 – offences against State under chapter VI IPC o Prior sanction of Central Government or State Government is

necessary to set law in motion. Sec 197 – cogniWance against Judges and Public servant for offences

alleged to have been committed in discharge of their public duty

o Previous sanction of Central Government or State Government is necessary to set law in motion.

Sec 198 – offence related to marriage under chapter XX IPC o Aggrieved person will have to go to the courts with complain. No

third party can set law into motion. Sec 199 – offences of defamation under chapter XXI IPC

o Affected party themselves have to go to the courts with complain. No third party can set law into motion. Though there is exception to this rule. If defamation is against the following six authorities, then court may take cogniWance on application of public prosecutor. These authorities are :

4. President of India 5. Vice President of India 6. Governor 7. Lt. General of UTs 8. Ministers of Center and State governments 9. Public servants

6. What are the consequences that a person should face by not setting the

criminal law in motion? The question now is that whether any person who is aware about commission of an offence, is bound by law to give this information to authorities?

iv. The answer to this question is ‘YES”. Sec 39 of Ch IV CrPC deals with legal duty of a person who has information related to the offences mentioned in the section.

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v. Sec 39 CrPC mentions a category of crimes for which a person needs to report to police if she has information and it covers most of the crimes which are serious in nature.

vi. Failing to perform legal duty will bring liability u/s 176 IPC, under which punishment up to 6 months imprisonment may be given.

vii. Similarly it is a legal duty of every person to assist the police in stopping crime whenever the assistance is demanded. Failing to provide assistance will bring liability u/s 187 IPC, under which punishment up to 6 months imprisonment may be given.

viii. However, it should be kept in mind that criminal law is a double-edged sword because initiation of prosecution based on false information can subject the de facto complainant to prosecution under Section 203 of the Indian Penal Code, 1860.