Preliminary considerations

Object of Criminal Procedure

1. The law of criminal procedure is intended to provide mechanism for the enforcement of
criminal law
2. criminal procedure is meant to be complimentary to criminal law
3. criminal procedure creates the necessary mechanism for the detection of crime, arrest of
the suspected criminals, collection of the evidence, determination of the guilt or innocence
of the suspected person and imposition of proper punishment on the guilty person.

Importance of criminal law

1. constantly used and affects greater number of persons than any other law
2. the nature of its subject matter is such that human values are involved in it to a greater
degree than in other laws
3. criminal procedure is complimentary to the substantive criminal law, its failure would
seriously affect the substantive criminal law which in turn would affect the protection that it
gives to the society

Extent and applicability

1. applies to whole India except j and k….
2. if the exigencies of the subject matter or of the local condition requires a special code to be
followed in respect od certain offences, the code makes room for such special law and
procedure
3. the code is passed by parliament but as the subject of criminal procedure is included in the
concurrent list in the seventh schedule, the state legislature may, in accordance with the
provisions of the constitution, modify the provisions of the code. The modified code will
then apply to the state

Territorial division
1. The entire territory of India consists of states, and for the purpose of code, every state shall
either be single division or shall consists of sessions divisions
1. Every session division shall be either one single district or shall consist of districts
2. Any district may be further divided into sub divisions
3. In each city with population more than one million has to be constituted as separate
territorial unit known as metropolitan area.
4. In respect to each metropolitan area the state government has the power to extend, reduce,
or alter the limits of such area or to specify the cesser of such area.
Classification of offences
1. All offences are divided into two categories: - (i) cognizable offence and (ii) non – cognizable
offence.
2. In case of cognizable offence, a police officer can arrest the accused person without any
warrant or authority issued by a magistrate and can investigate into such a case without any
orders or directions from a magistrate
3. In the case of cognizable offence, it appears to be the responsibility of the state to bring
offender to justice
4. In non-cognizable offence the police officer can not arrest without a warrant and further
such an officer has neither duty nor power to investigate into such offence without the
authority given by a judicial magistrate
5. The non-cognizable offences are considered more in the nature of private wrong and
therefore the collection of evidence and prosecution of the offender are left to the private
citizens
6. Secondly offences are classified into bailable and non bailable offences
7. Bailable offence is the offence which is shown bailable in first schedule and non bailable
offence is any other offence
8. According to first schedule, offences under the law other than IPC which are punishable with
imprisonment for three or more years have been considered as non bailable
9. Third classification is summons cases and warrant cases
10. A warrant case means case relating to an offence punishable with death, imprisonment for
life or term exceeding two years. Rest is summons case

Functionaries under the code

1. Police
2. Prosecutors
3. Defense counsel
4. Magistrate and judges of higher courts
5. Prison authorities and correctional service personnel

Main segments of criminal procedure

The core object of the criminal procedure is to ensure for the accused a full and fair trial in
accordance to the principle of natural justice. Thus its main segments are :-

1. Pretrial procedures – info. Regarding commission of offences; arrests; examination of

persons; search and seizure and similar other aspects of the investigative process.
2. Jurisdiction of police and courts in respect of investigation and trial of offences
3. Bail
4. Trial Procedure – Cognizance of offences; initiation of proceedings; attributes of fair trial and
other general provisions regarding trials; charge; types of trials; judgements.
5. Review procedure – Reference; appeal; revision; exercise of inherent powers of high court
6. Execution of the final decision of the court.

Functionaries under the code

Police
1. The police force is an instrument for the prevention and detection of crime, and is
established and enrolled by every state government under the Police act 1861 or under a
state enactment replacing the act of 1861.
2. In each state the inspector General of Police is in charge of overall administration of state
police
3. District superintendent of police is in charge of administration of district under the control of
district magistrate or collector
4. The code confers special powers e.g., powers to make arrest, search etc. on the member of
police force. The police officers who are in charge of police stations have wider power.

The prosecutor
1. A crime is a wrong not only against the individual victim but also against the state.
Therefore, the state takes the responsibility of prosecuting the accused person
2. The central government and each state government in India have power to appoint
prosecutors for conducting prosecution and other criminal proceedings on their behalf in the
high court, sessions court or the court of the magistrate
3. Every trial before the court of session the prosecution shall be conducted by public
prosecutor, however no such provision for the court of magistrate
4. The cases initiated by the police report usually the prosecution is conducted by APP and in
cases initiated by private complaint the prosecution is either conducted by the complainant
himself or authorized counsel
5. The duty of prosecutor in criminal trial is not merely to secure conviction at all costs, but to
place before the court whatever evidence is in his possession whether it be in favor or
against the accused, and to leave it to the court to decide upon all such evidence whether
the accused was or was not guilty of the offence alleged.

Designation court qualification Appointing others

of authority
prosecutor
Public High court Adv in practice State govt. or After consultation with HC
Prosecutor for seven or central govt.
more years
Addition High court Adv in practice State govt. or After consultation with HC
Public for seven or central govt
Prosecutor more years
Public Sessions Adv in practice State govt. or Must be one of the advocates on
Prosecutor Court for seven or central govt the panel prepared by DM in
for District more years consultation with session judge.
In case where regular cadre for
prosecuting officers exists, the
appointment shall normally be
made from among the persons
constituting the cadre
Add. Public Sessions Adv in practice State govt. or Must be one of the advocates on
Prosecutor Court for seven or central govt the panel prepared by DM in
for District more years consultation with session judge.
In case where regular cadre for
prosecuting officers exists, the
appointment shall normally be
made from among the persons
constituting the cadre
Special Public Any court Adv in practice State govt. or Appointment made for the
Prosecutor for 10 years central govt purpose of any case or class of
cases
Assistant Courts of Any person other State govt. or When App is not available, the
Public magistrates than police central govt Dm may appoint any other person
prosecutor officer to APP

The Defense Counsel

1. The adversary system of criminal trial, assumes that the state using its investigative
resources and employing a competent prosecutor will persecute the accused, who in turn
will employ equally competent defense council to challenge the evidence of prosecution
2. The right to council will remain empty if the if the accused due to his poverty or indignant
condition has no means to engage a council for his defense
3. Therefore, it has been provided that in trial before the court of session, the accused is not
represented by a pleader and where is appears to the court the accused has not sufficient
means to engage a pleader for his defense at the expense of the state.

The courts
The supreme court
1. The constitution establishes the supreme court and defines its jurisdiction and powers
2. The code further makes provisions of appeal to the supreme court under certain
circumstances and also enables supreme court to transfer cases and appeals in the interest
of justice

The High Court

1. The constitution provides for the establishment of high courts for each state and generally
defines the jurisdiction of such high courts
2. The high court has got superintendence over all courts throughout the concerned state

The Court of Sessions

1. The state establishes the court of sessions for every session division
2. The court is to be presided over by a judge appointed by the high court
3. The high court may also appoint additional sessions judges and assistant session judges to
exercise jurisdiction in the court of sessions. An assistant session judge is subordinate to
session judge

Courts of Judicial Magistrate

1. In every District, the state government after the consulation with the High court, establish as
many courts of judicial magistrate of the first class or second class as it may consider
necessary
2. The state government after the consultation with high court, establish for any lcal area one
or more special courts of judicial magistrate of first class or second class to try any particular
case or particular class of cases.
3. Where any such special court has been established no other court of magistrate in local area
shall have jurisdiction to try any such case or class of cases
4. Presiding judge appointed by the high court
5. Every judicial magistrate will be subordinate to the sessions judge

Courts of metropolitan magistrate

1. In every metropolitan area…… (same as above)

Special judicial or metropolitan magistrate

2. In any district or metropolitan area, the high court, on the request of government concerned
may confer upon any government servant or retired government servant all or any of the
powers of a judicial magistrate or of a metropolitan magistrate as the case may be, in
respect of particular cases or of particular classes of cases

Court of executive magistrate

3. The code has adopted the policy of separation of judiciary from the executive. Therefore it
has created separate category of courts which are distinct from the judicial magistrate
4. The judicial magistrate and metropolitan magistrate is under the control of high court and
executive magistrate is under the control of state government
5. Functions which are judicial in nature are the concerns of judicial magistrate, while functions
which are “police” or “administrative” in nature are the concerns of the executive
magistrate.

Hierarchy of criminal courts and their powers to pass sentence

Supreme court (any sentence authorized by the law)

High court (any sentence authorized by the law)

Sessions court (session judge, add session judge- any sentence authorized by the law, sentence to
death is subject to confirmation by High Court)

(1) Assistant Session judge (Imprisonment up to 10 years /and fine)

(2) Chief Metropolitan Magistrate or addition CMM (imprisonment up to 7 years or/and fine) –
(a) metropolitan magistrate (b) special metropolitan magistrate
(3) chief Judicial magistrate CJM (Imprisonment up to 7 years or/ and Fine) – subdivisional
judicial magistrate for first and second class
Arrests
Arrest means apprehension of a person by legal authority resulting in deprivation of his liberty

Arrest of the person is required to: -

(1) For securing attendance of an accused at trial

(2) As a preventive or precautionary measure
(3) For obtaining correct name and address
(4) For removing obstruction to police
(5) For retaking person escaped from custody

Decision to arrest
(1) it is for the magistrate to make an arrest decision on information generally obtained by the
police or complainant. He will sign and arrest warrant
(2) A warrant for arrest is a written order signed, sealed or issued by magistrate and addressed
to a police officer or some other person
(3) In cases or imminent danger, where procuring arrest warrant from the magistrate is not
possible, the decision of arrest is taken by the investigative agencies
(4) In all cases where arrests are made by investigative agencies the code contemplates judicial
scrutiny soon after such arrests. According to the code every person arrested without a
warrant is required to be produced before judicial magistrate within 24 hours of his arrest

Arrest with warrant

(1) In practice, magistrate has hardly any occasions to issue warrant of arrest if he has taken
cognizance of a cognizable offence on a police report, because, the police report is
submitted to the magistrate after the police has done its investigation into the offence and
during the investigation the police has power to arrest without warrant a person involved in
commission of a cognizable offence

Arrest without warrant

A police officer may arrest a person without warrant –
(1) A person is actually concerned or reasonable concerned in a cognizable offence
(2) Any person who, in the presence of such officer has been accused of committing non
cognizable offence and refuses to give his trye name or residence
(3) Any person concerned or reasonable suspected to be concerned in any act committed at
a place outside India which if committed in India would be punishable as an offence
(4) Any person whose arrest any requisition is received from another police officer
competent to arrest that person without warrant
(5) Any person reasonably suspected of being a deserter from any of the armed forces of
the union
(6) Any person found in possession of any implement of house breaking without any lawful
excuse
(7) Any person found in possession of property reasonably suspected to be stolen and who
may be reasonably suspected of having committed an offence with reference to such
property
(8) Any person obstructing a police officer in the discharge of his duties
(9) Any person who has escaped lawful custody
(10)Any released convict committing a breach of any rule made under section 365 (5)
(11)Any person designing to commit a cognizabke offence which can not be prevented
(except) by the arrest of such a person’

Guidelines made by supreme court to arrest subordinate judicial officer :-

(1) if a judicial officer is to be arrested for some offence it should be done under
intimidation of the district judge or high court as the case may be
(2) for immediate arrest, a technical or formal arrest may be affected
(3) the fact of such arrest should be immediately communicated to the district magistrate
(4) the judicial officer so arrested is to b (read the rest of the guidelines from book)

powers for effecting an arrest: -

(1) power to use force - in all cases where a person arrested by police is produced before
the magistrate and remand - judicial or non-judicial – is given by the magistrate the
person concerned shall not eb handcuffed unless the police has also obtained orders
from the magistrate
(2) Power to search a place –
(3) Power to pursue
(4) Power to obtain assistance
(5) Power to require subordinate officer to arrest
(6) Power to rearrest escapee

After arrest procedures

(1) Search of an arrested person
(2) Seizure of offensive weapon
(3) Medical examination of the accused

Rights of arrested Person

(1) Rights to be informed of the grounds of arrest – the rules emerging from decisions such
as Joginder Singh V state of UP and D.K. Basu V State of West Bengal, referred to supra
have been enacted in S 50 A making obligatory on the part of the police officer to not
only inform the friend or relative of the arrested person about his arrest etc. but also
make in a register maintained by the police
(2) Right to be informed of the right to bail –
(3) Right to be produced before the magistrate without delay
(4) Right to not being detained for more than 24 hours without Judicial scrutiny
(5) Right to consult a legal practitioner
(6) Free legal aid
(7) Examined by a medical officer
Rules Formulated by the Supreme Court in Joginder Singh V State Of
U.P. for the need for having more transparency in the accused-police
relations
1. An arrested person being held in custody in entitled if he so requests to have one friend,
relative or other person who is known to him or likely to take an interest in his welfare, told,
as far as is practicable that he has been arrested and where he is being detained
2. The police officer shall inform the arrested person, when he is brought to the police station,
of this right.
3. An entry shall be required to be made in the diary as to who was informed of the arrest.
These protections from power must be held to flow from articles 21 and 22(1) and enforced
strictly.

Rules Formulated by the Supreme Court in D.K. Basu V. State of

W.B. for the need for having more transparency in the accused-police
relations
1. The police personnel carrying out the arrest and handling the interrogation of the arrestee
should bear accurate, visible and clear identification and name tags with their designations.
The particulars of all such police personnel who handle interrogation of the arrestee must be
recorded in a register
2. That the police officer carrying out the arrest of arrestee shall prepare a memo of arrest at
the time of arrest and such memo shall be attested by at least one witness, who may either
be a family member of the family of the arrestee or a respectable person of the locality from
where the arrest is made, It shall also be countersigned by the arrestee and shall be contain
the time and date of arrest.
3. The time, place of arrest and venue of the custody of an arrestee must be notified by the
police where the next friend or relative of the arrestee lives outside the district or town
through the legal aid organization in the district and the police station of the area concerned
telegraphically within a period of 8 to 12 hours after the arrest.
4. The arrestee should, where he so requests, be also examined at the time of his arrests and
major and minor injuries, if any present on his/her body must be recorded at that time. The
“inspection Memo” must be signed both by the arrestee and the police officer effecting the
arrest and its copy provided to the arrestee.
5. The arrestee should be subjected to medical examination by a trained doctor every 48 hours
during the detention in custody by a doctor on the panel of approved doctors appointed by
the director, health services of the state or union territory concerned.
6. Copies of all the documents including the memo of the arrest referred to above should be
sent to the illaqa magistrate for his record.
7. The arrestee may be permitted to meet his lawyer during interrogation, though not
throughout interrogation.
8. A police control room should be provided at all districts and state headquarters, where
information regarding the arrest and the place of custody of the arrestee shall be
communicated by the officer causing the arrest, within 12 hours.

Consequence of non-compliance with the provisions relating to arrest

1. A trial will not become void because of it.
2. Though the illegality and irregularity in making the arrest would not vitiate the trail of the
arrested person, it would be quite a material on charge of resistance or to escape the lawful
custody
3. If the rarest is illegal, the person can exercise the right to private defense
4. Can claim damages

Search and seizure

The main processes for compelling production of things and documents are :-

(a) Summons issued by a court

(b) Written order issued by a police officer in charge of a police station
(c) Search and seizure with or without warrant

These processes can be used in

(i) For the investigation, inquiry or trial of any offence

(ii) Proceedings generally taken as preventive or precautionary measure

Q) What are the circumstances in which search of a place can be

made without a warrant?
(i) Any magistrate may direct a search to be made in his presence of any place he is
competent to issue a search warrant
(ii) During an investigation, if there is no time to issue a search warrant, and immediate
search of the place is necessary for the purposes of the investigation, a senior
investigating officer can conduct a search without warrant
(a) The power to search without a warrant can be exercised only by a police officer in
charge of a police station or any other officer authorised to investigate into any
offence and in fact making such an investigation.
(b) The search is not to be general search, but must be search of a particular things,
documents or specified material necessary for the purpose of investigation
(c) The place of search must be in limits of police station
(d) The police officer in search must have reasonable grounds for believing
(1) Any specific thing necessary for the investigation may be found in the plce
(2) Such thing otherwise can not be obtained without undue delay.
(e) A police officer before proceeding to search a place must record his grounds of
belief.
(f) The copies of record made prior to the search must be sent forthwith to the nearest
magistrate. This would ensure that these records are not conveniently fabricated.
The magistrate is also required to furnish, free of cost, to the occupier of the place
searched, a copy of the entire record so received by him from the police. The copy
would facilitate the proof of any illegality or impropriety, if any, in the search.
(g) The police officer as far as practicable is to conduct the search in person . if unable
can sent the subordinate
(h) In addition, the provisions as to the search with warrants and general provisions as
to all searches shall so far as may be apply to the search made by police officer
without a warrant
(iii) If a police officer requires to search a place located beyond the limits of his police
station. Such search could be arranged through a station house officer.
(iv) Where a police officer in charge of the police station has reason to believe that the
weights, measure or instruments for weighing, which are false, are used or kept in any
place he can inspect and search the place that may seize such weights, measures, etc

q) explain the circumstances in which, and the person by whom a

warrant for search of a place can be issued.
A search warrant is an written authority given to a police officer or other person by a competent
magistrate or court for search of any place either generally or for specified things or documents.

Circumstances under which a search warrant can be issues: -

(i) Where any court has reason to believe that a person to whom a summons, order, or
requisition has been addressed will not produce the document or thing required.
(ii) Where such document or thing is not known to the court to be in possession of any
person
(iii) Where the court considers that the purposes of any inquiry, trial or other proceedings
will be served by a general search or inspection. A general search means a search not in
respect to any specific document or things, but inquiry for the purpose of discovering
documents or things which might involve persons with criminal liability
(iv) If a district magistrate, sub divisional magistrate, or a magistrate of the first class has
reason to believe that any place is used for the deposit or sale of stolen property, or for
the deposit, sale or productions of any objectionable articles, likes counterfeit coins,
stamps, currency notes, false seals, etc. or that such objectionable articles are deposited
in any place, he may by warrant authorise any police officer above the rank of the
constable to enter and search the place and to seize such property or articles.
(v) Where any newspaper, bok stc contain any matter the publication of which is a
punishable offence u/s 124-A., 153A,153B, 292,293,295 -A of IPC. The state government
by notification stating the grounds for such action, declare every copy of such
newspaper or book, etc. to be forfeited to the government. Upon such declaration, any
magistrate may, by warrant authorize search and seizure
(vi) If any district magistrate, sub divisional magistrate or magistrate of any first class has
reason to believe that any person is wrongfully confined, he may issue a search warrant
for the search of such person.

What is the procedure to be followed by the police while making the

search of a place with or without warrant?
They are: -

(i) Whenever any place liable to search or inspection is closed, any person in occupation of
such a place, on the demand of person making search, allow free ingress thereto, and
afford all the reasonable facilities to search therein
(ii) If ingress not obtained, the person conducting search can break open any entrance door
or window after notification of his authority and purpose, and demand the admittance
duly made
(iii) Where any person is reasonably suspected of concealing about person any article for
which the search should be made, such person may be searched. If person to be
searched is a woman, the search shall be made by another woman with strict regards to
decency
(iv) The search is to be made in the presence of at least two independent and respectable
inhabitants of the locality in which the place is to be searched is situated. If a person
ordered to witness neglects or refuses without reasonable cause to attend and witness
the search, he shall be deemed to have committed an offence under section 187 of the
IPC
(v) The occupant of the place or the nominee shall in every case be permitted to attend
during the search
(vi) A list of things seized in the course of search and of the places in which they are
respectively found shall be prepared by the person asking the search and shall be signed
by the witnesses. It has been made obligatory that the copy of the list of things seized in
a search shall be delivered to the occupant or his nominee
(vii) The recovery of the articles in a search can be proved in the trial by calling the police
officer or search witness

Explain the legal consequence that would flow from the non-
compliance with rules of search procedure
(i) Where a magistrate not empowered by law to issue a search warrant for search of a
place suspected to contain stolen property, etc under section 94, erroneously in good
faith issues such warrant, the searching proceeding shall not be set aside on the ground
that the magistrate was not empowered
(ii) Section 93(3), no magistrate other than the district magistrate or the chief judicial
magistrate shall issue a warrant to search for a document, parcel or things in the custody
of postal or telegraph authority. otherwise, proceedings are void
(iii) A search without a warrant conducted by a police officer who is not authorized to do so,
is illegal.
(iv) The provision of search related procedure are considered to be directory only. Even if
search is illegal, it will not affect the validity of the seizure and the further investigation
(v) If search procedure is not legal the occupant can obstruct with impunity the officer
attempting such a search
(vi) The person making such an entry can be made liable in civil suit of trespass

Investigation
Explain the meaning and purpose of investigation, and point out how investigation is
different from, “inquest”, “Inquiry” and “trial”?
1. Investigation according to the code is to be conducted always by police or any other
authorized person
2. Inquiry according to the code is conducted by magistrate or court which is not a trial. An
inquiry is never conducted by a police officer
3. The trial is not defined by the code. It means judicial proceedings in accordance with the
law.
4. Investigation of an offence consist of: -
(i) Proceedings to the place of offence
(j) Ascertaining to the facts and circumstances of the case
(k) Discovery and arrest of the suspected offender
(l) Collection of evidence relating to the commission of the offence which may consist
of: -
(a) Examination of various person (including the accused) and the reduction of their
statements into writings
(b) A search of a place or seizure of things considered necessary for investigation or
trail
5. Formation of opinion, as to whether on the materials collected there is a case to place the
accused before a magistrate for trial, and if so, taking the necessary steps for the same by
filling chargesheet under section 173

Explain Broadly the nature of offences in respect to which every person is under an
obligation to give information to the police or magistrate. Under what circumstances is a
person exempt from giving information of any such offence? What can be legal consequence
of failure to give such information
1. Every person aware of commission of, or intention of any other person to commit, any
offence mentioned in section 39 is required to forthwith give information of the same to the
nearest magistrate or police officer
2. A person however is exempt from this duty if he has reasonable excuse for not giving
information.
3. Intentional omission to give information renders person liable under section 176 and 202 of
penal code
4. The duty to give information as mentioned above is in respect of following punishable
offences: -
a. Certain offences against state, name section 121-126
b. Offences against public tranquillity, 143-145, 147,148
c. Offences relating to illegal gratification, namely 161-165 A
d. Offences relating to adulteration of foods and drugs, namely 272-278
e. Offences relating to causes of death. 302, 303,304
f. Aggravated form of criminal breach of trust, section 409
g. Certain kinds of mischief, section 431-439
h. Certain forms of house trespass namely section 449, 450
i. Certain forms of lurking house trespass namely section 456-460
j. Certain offences relating to currency notes and bank notes, namely, sections 489 A – 489
E
5. In addition to section 39, section 40 casts further duty on village residents to report matters
to the police or magistrate. This is necessary because ethe most villages are not within easy
reach for the police station. the duty to give information not only relates to commission of
crime, but also extends to giving information about sudden or unnatural death, presence of
notorious receiver or vendor of stolen property, the presence of any thug, robber, escaped
convict, proclaimed offender, etc.
6. Section 37 requires every person to give reasonable assistance to the police or the
magistrate if such assistance is demanded ---
a. In taking or preventing the escape of any other person whom such a magistrate or police
officer is authorised to arrest
b. In the prevention or suppression of breach of peace
c. In the prevention of any injury attempted to be committed to any railway, canal,
telegraph or public property

On receiving information as to the commission of any offence what is the investigative

procedure to be followed by an officer in charge of a police station?

Procedure needed to be followed is: -

a. If the information is orally given to the officer in charge of the police station it shall be
reduced to writing by the officer himself or under his direction.
b. If the information is given in writing, or reduced to writing, shall be signed by the
informant
c. The substance of the information then shall be entered, by the police officer, in the book
to be kept by the officer in the form prescribed by the state government. This book is
called station diary or general diary
d. A copy o the information as recorded shall be given forthwith, free of cost to the
informant
e. If the officer in charge of the police station refuses to record the information, any person
aggrieved by such refusal may send in writing and by post, the substance of such
information to the superintendent of police concerned. If the SP is satisfied that such
information discloses the commission of a cognizable offence, he shall either investigate
the case himself or directa