CODE OF CRIMINAL PROCEDURE
Q. 1. Define the followings:
1. Bailable Offence.
2. Non-Bailable Offence.
3. Summons Case.
4. Warrant Case.
5. Cognizable Offence.
6. Non-Cognizable Offence.
Ans. 1. Bailable Offence
Bailable offence is defined in Section 2(a) of the Code of Criminal Procedure, 1973 as follows:
“Bailable offence” means an offence shown in First Schedule as bailable or which is made bailable by any other law for the time being in force.
In case of bailable offence bail can be claimed by the accused person as a matter of right and the Court or the officer-in-charge of a police station is bound to release the accused on the bail.
In K. Chaganlal v. State of Gujarat, 1973 GLJ 533, the Court held-The Court cannot order remand of the accused to police custody in a case the accused is charged of having committed a bailable offence and he is prepared to give bail for his release.
2. Non-Bailable Offence
According to Section 2(a) of the Code of Criminal Procedure “Non- Bailable Offence” means an offence other than bailable offence.
Actually the Code of Criminal Procedure contemplates two kinds of offences-Bailable and Non-Bailable.
3. Summon Case
Summons case is defined in Section 2(w) of Code of Criminal Procedure as follows:
“Summon Case” means a case relating to an offence, and not being a warrant case. Section 2(x) defines a warrant case to mean a case relating to an offence punishable with death, imprisonment for life or imprisonment for a term exceeding two years. Thus, summons case is a case relating to an offence which is not punishable with death, imprisonment for life or imprisonment for a term exceeding two years. In other words, the punishment which can be given in a summons case is imprisonment for a term of two years or less and also with fine.
4. Warrant Cases
“Warrant Case” as defined in Section 2(x) of the Code of Criminal Procedure means a case relating to an offence punishable with-
-death,
-imprisonment for life, or
-imprisonment for a term exceeding two years.
From above it is clear that the definition of summons case or warrant case are considered together from the point of classification of cases for procedural purposes. One classification of summons and warrant cases is based on the basis of punishment which is awarded for them.
All cases in which the offence is punishable by death, imprisonment for life or imprisonment for a term exceeding two years are warrant cases.
In Padamnath v. Ahmad Lodhi, 1970 Cri. L.J. 1700, it was held that the mere fact that a warrant was issued by a Magistrate in the first instance, would not alter the nature of the case.
5. Cognizable offence
“Cognizable Offence” as defined in Section 2(c) of the Code of Criminal Procedure means an offence, for which and “cognizable case” means a case in which, a police officer may, in accordance with the First Schedule or under any other law for the time being in force, arrest without warrant.
The Code of Criminal Procedure has made it clear in its First Schedule as to what offences are cognizable and what are non-cognizable.
6. Non-Cognizable Offence
According to Section 2(1) “non-cognizable offence” means an offence or which, and “non-cognizable case” means a case in which, a police officer has no authority to arrest without warrant.
In a non-cognizable case, a police officer generally cannot investigate the matter without warrant. Non-cognizable matters relate to minor offences and harm done is comparatively less than cognizable offence.
Q. 2. Distinguish between the following:
1. Cognizable and Non-Cognizable Offences.
2. Bailable and Non-Bailable Offences.
3. Summons and Warrant Cases.
Ans. 1. Cognizable and Non-cognizable Offences
There are following distinction between cognizable and non- cognizable offences-
(i) Cognizable offences are usually serious offences while non- cognizable offences are not serious in nature.
(ii) In a cognizable offence, the police officer is empowered to arrest the offender without warrant whereas in non-cognizable offence the police may not arrest the offender without warrant.
(iii) In cognizable offence, the police may not only arrest without a warrant, but also has a duty to investigate the case without seeking any permission for the same, while in non- cognizable offence police cannot investigate into the matter without warrant of Magistrate.
Proceedings in non-cognizable cases start by means of a complaint but no cu aplaint need be made in a cognizable case.
2. Bailable and Non-Bailable Offences
(i) Bailable offences are non-serious offences in nature but non- bailable offences are serious in nature.
(ii) In some bailable offences, police officer is not empowered to arrest the offender without warrant but in non-bailable offences offenders are arrested by the police without warrant.
(iii) Bailable offence is an offence which is shown as bailable in First Schedule but non-bailable offences means any other offence.
3. Summons and Warrant Cases
It would be pertinent to bring out differences between a summons case and a warrant case from the point of procedure to be adopted for trial of these cases. The differences between the two are as follows:
(1) The Code of Criminal Procedure prescribes two procedures for the trial of a warrant case by Magistrates, namely, one to be adopted by the Magistrate in case instituted on a Police Report while the other in case instituted otherwise than on a Police Report. But there is only one procedure prescribed for trial of a summons case whether it is instituted on a Police Report or on a complaint.
(2) The trial of a warrant case as a summons case is a serious irregularity which would vitiate the trial if the accused has been prejudiced. But the trial of a summons case as a warrant-case is only an irregularity which is curable under Section 465 of the Code.
(3) Where a warrant case has been tried as a summons case and it has resulted into acquittal of the accused, such acquittal shall operate only as a discharge under Section 245 of the Code. On the other hand, where a summons case has been tried as a warrant case and the accused is discharged under Section 245, the discharge will amount to an acquittal under Section 255 of the Code.
(4) When the accused appears or is brought before a Magistrate in a warrant case, the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution. But in a summon case, the particulars of offence are stated to the accused and he shall be asked whether he pleads guilty or wishes to defend himself.
(5) Framing of a formal charge is necessary in a warrant case but it is not necessary in a summons case.
(6) In a warrant case, the accused gets more than one opportunity to cross examine the prosecution witnesses whereas in a summons case he gets only one opportunity to cross-examine the prosecution witnesses
(7) A warrant case may result into discharge of the accused under Section 249 in the absence of the complainant but in a summons case, but the absence of complainant may result in the acquittal of the accused under Section 256 of the Code.
(8) In warrant case, a complaint cannot be withdrawn by the complainant but in a summons case, the complainant may withdraw the complaint with the permission of the Magistrate.
(9) The Magistrate is empowered to convert a summons case into a warrant case under Chapter XX of the Code but a warrant case cannot be converted into a summons case
(10) In a summons case, the accused is either convicted or acquitted, but in a warrant case the accused is either convicted or acquitted or he may also be discharged.
(11) Summons case once decided cannot be revived, but the warrant case may revive where the accused has been discharged.
Q. 3. Define the following:
(1) Accused.
(2) Victim.
Ans. (1) Accused. The term “Accused” has not been defined in Code of Criminal Procedure. It means a person who is charged with a crime. The accused is a person whose name is given in the First Information Report or in a complaint to the Magistrate for being involved in crime. He is the person against whom the allegation is made that he has committed an offence Queen Queen Empress v. Mutsadi Ali (1898) 21 All 107, Sheadin v K. E 60. C. 262]. A person who is interro, ated or taken into custody on the basis of oral evidence against him for committing a crime is also an accused. It means that accused is a person over whom a Magistrate or a Criminal Court is exercising jurisdiction but it does not mean a person against whom security proceedings are taken.
(2) Victim.- The term “Victim” has been defined by Section 2(wa) in these words:
“Victim” means a person who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged and the expression “victim” includes his or her guardian or legal heir. Thus, the victim means not only the person who sustains any loss or injury from the offence but it also includes the guardian and legal heir of the person sustaining such loss or victim.
This definition has been inserted in the Code of Criminal Procedure, 1973 by Code of Criminal Procedure (Amendment) Act, 2008.
Q. 4. Define the followings:
1. Police Report.
2. Pleader.
3. Public Prosecutor.
Ans. 1. Police Report-
According to Section 2(r) of the Code of Criminal Procedure “Police Report” means a report forwarded by police officer to a Magistrate underbsub-section (2) of Section 173 of the Code of Criminal Procedure. It includes the following:
(i) Name of parties.
(ii) Nature of information.
(iii) Names of person acquainted with the circumstances
(iv) Whether any offence appears to have been committed.
(v) Whether the accused has been arrested.
(vi) Whether he has been released on bond, and is so, whether with or without sureties.
(vii) Whether he has been forwarded in custody under Section 170 (h) whether the report of medical examination of the woman has been attached where investigation relates to an offence under Section 376, Section 376-A, Section 376-AB, Section 376-B, Section 376-C, Section 376-D, Section 376-DA, Section 376-DB or Section 376-E of the L.P.C..
2. Pleader
According to Section 2(q) of the Code of Criminal Procedure, pleader when used with reference to any proceeding in any Court, means a person authorized by under any law for the time being in force, to practise in such Court, and includes any other person appointed with the permission of the Court to act in such proceeding.
From above, it is clear that the inclusive part of the definition suggests that a private or non-legal person may be appointed to plead the case with the permission obtained by the Court. In Harishankar Rastogi v. Girdhari Sharma, AIR 1978 SC 1019, it was held that however such permission may be withdrawn according to the situation of the case.
3. Public Prosecutor
According to Section 2(u) “Public Prosecutor” means any person appointed under Section 24 and includes any person acting under the directions of a Public Prosecutor.
Public Prosecutor may be treated as an officer of the Court, he has to act on behalf of the State. Section 24 of the Code contains provisions regarding the appointment of Public Prosecutor
Q. 5. Giving the definition of inquiry, investigation and trial, differentiate them.
OR
Discuss the case in which an inquiry may be made under the Code.
Ans. Inquiry- The word ‘inquiry’ has been defined under Section 2(g) of Cr. P.C. According to Section 2(g) of the Code, “Inquiry” means every inquiry, other than a trial conducted under the Code of Criminal Procedure by a Magistrate or Court.
In Halimuddin v. State, 1976 Cr.L.J. 449 (Pat), it was held that the definition of inquiry in Section 2(g) of Cr. P.C. specifically excludes the trial.
An inquiry is conducted by a Magistrate or a Court for ascertaining or verifying the facts with a view to take action under this Code.
Investigation
The term investigation” is defined under Section 2(h) of the Code in these words “Investigation includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorised by a Magistrate in this behalf.
Generally speaking, the following steps in a criminal case may be deemed to be within the purview of the term investigation under the Code:
(1) proceeding to the spot of crime,
(2) ascertaining the facts and circumstances of the case,
(3) discovery and arrest of the suspected offenders:
(4) collection of evidence, examination of various persons including the accused and recording their statements in writing
(5) search of places or seizures of things considered necessary for the purpose of making out a prosecution case,
(6) filing of a charge-sheet under Section 173 of the Code where material collected is sufficient to make out a prima facie case against the offender or offenders.
From what has been stated above, it is evident that an investigation by Police is neither an inquiry nor a trial under the Code. Where a Police Officer on receiving the first information report and registering a case, visits the scene of occurrence of the crime, inquires for accused and records statements of witnesses, it is simply an investigation proceeding [M. Bhatt v. State of Uttar Pradesh, 1973 Cr.L.J. 886 (Alld.)].
In State of J&K v. Dr. Saleem-ur-Rehman, LL 2021 SC 618, the Apex Court held that whatever inquiry is conducted whether it is by police officer himself or by the order of the Magistrate, it cannot be considered as investigation under the Code of Criminal Procedure. The court noted that preliminary inquiry is held only for finding out whether a prima facie case for the registration of FIR exists or not. Therefore, by no stretch of imagination it can be considered as part investigation.
From above it is clear that the term ‘investigation’ has a very wide connotation. It includes arrest and detention both.
Examining witnesses and arresting, raids and searches etc. are the integral part of investigation of an offence.
Medical examination of a person also forms a part of investigation [Ananth Kumar Nayak’s case, 1977 Cr. L. J. 1797 (A.P.)
Trial
The word trial has not been defined in the Criminal Procedure Code It generally means a judicial proceeding. Such proceeding is ended either in conviction or acquittal.
The Privy Council in B.R. Lawrence v Emperor, AIR 1933 PC 218, has defined ‘trial. According to it, trial is a judicial proceeding including sentence.
Difference between inquiry and trial
An inquiry differs from a trial under the Code in the following respect-
(1) Trial presupposes the commission of an offence but an inquiry may include inquiries into matters other than offences such as an inquiry concerning disputes as to immovable property etc.
(2) A trial is a judicial proceeding which necessarily ends into conviction or acquittal whereas it is not so in case of an inquiry. Inquiries may have various endings according to the circumstances of the case
The term inquiry covers the proceedings upto the stage when they result in a discharge, whereas the term ‘trial represents proceedings from the point at which they may result in a conviction or acquittal
Difference between inquiry and investigation
An inquiry is different from an investigation in the following aspects:
(1) An inquiry is made by a Magistrate or a Court but an investigation is done by a Police Officer or any other person not being a Magistrate or a Court
(2) The purpose of inquiry is to determine the truth or otherwise of certain facts in order to initiate judicial proceedings, ie, trial against the accused but the object of an investigation is to collect evidence.
(3) An inquiry may be judicial or non-judicial but an investigation is never judicial.
(4) An inquiry begins with interrogation rather than by inspection, but an investigation represents an attempt to know the hidden fact.
Cases in which an inquiry may be made under the Code
The Code of Criminal Procedure empowers the Magistrate to make an inquiry in the following cases :-
(1) In security proceedings under Chapter VIII of the Code.
(2) In case of dispute as to immovable property under Section 145 (4)
(3) In proceedings under Sections 146, 147 and 148 of the Code.
(4) Under Section 159 on receiving a report from the Police in non- cognizable cases
(5) In case of death of a person in Police custody under Section 176 of the Code.
(6) On receiving a complaint, the Magistrate may postpone the issue of the process against the accused and inquire into the case himself under Section 202
Q. 6. What is Complaint? State its essentials.
Ans. Complaint-
The word complaint has been defined under Section 2 (d) of the Code of Criminal Procedure in the following words-
“Complaint means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but it does not include a Police report.
Explanation. A report made by a Police Officer in a case which discloses, after investigation, the commission of non-cognizable offence shall be deemed to be a complaint; and the Police Officer by whom such report is made shall be deemed to be the complainant.”
Ingredients of a Complaint
The main ingredients of a complaint are as follows-
(1) There must be an allegation about the commission of an offence.
(2) It must be made to a Magistrate either orally or in writing.
(3) It must have been made with a view to his taking action against the person alleged to have committed the offence.
(4) Though a police report does not constitute a complaint but a report by a Police Officer in a case which after investigation, discloses the commission of a non-cognizable offence, shall be deemed to be a complaint.
(5) It must be against some person, whether known or unknown, who is alleged to have committed an offence
(6) A complaint about an offence can be filed by any person, except in cases of offences relating to marriage, defamation and offences in Sections 195 to 197, when it can be filed only by the aggrieved person.
(7) A complaint need not contain all details of prosecution evidence.
Q. 7. Distinguish between the followings:
1. Charge and Offence.
2. Complaint and First Information Report.
Ans. 1. Charge and Offence- The definition of charge has been given in Section 2(b) of the Code of Criminal Procedure. It lays down that the term “charge” includes any head of charge when the charge contains more heads than one.
The word ‘offence’ has been defined under Section 2(n) of the Code. According to it-offence means any act or omission made punishable by any law for the time being in force and includes any act in respect of which a complaint may be made under Section 20 of the Cattle Trespass Act, 1871.
Difference between Charge and Offence
Charge
1. Charge is defined in Section 2(b) of the Code of Criminal Procedure, 1973.
2. Definition of charge is not complete.
3. Charge is defined as ‘charge’ includes any head of charge when the charges contain more than one head.
4. The charge is framed after inquiry for the offence alleged to have been committed. The charge states the offence which the accused has to face.
Offence
1. Offence is defined in Section 2(n) of this Code.
2. Definition of offence is complete.
3. Offence is defined as- ‘offence’ means any act or omission made punishable by any law for the time being in force and includes any act in respect of which a complaint made be made under Section 20 of the Cattle Trespass Act, 1871.
4. After the charge is framed, the accused is tried with respect to offences charged.
2. Difference between Complaint and First Information Report-
(1) A complaint is made to a Magistrate who examines the complainant on oath before dealing with it. The first information report is given to a Police Officer who does not examine the informer on oath.
(2) The essential difference between a complaint and an information when given to a Magistrate is that a Magistrate acts on complaint because he is asked in the complaint to do so, but it is purely a matter of his discretion to act or not to act on an information, and while dismissing a complaint he must record his reason in writing: he need not record arrything when he does not want to act on information.
(3) The principal element in an information is the disclosure of an offence but the principal element in a complaint is the prayer for prosecution.
Q. 8. Describe the constitution and subordination of Criminal Courts. What are the provisions about it in Cr.P. C.?
Ans. Constitution and subordination of Criminal Courts- According to Section 6 of the Code of Criminal Procedure besides the High Courts and the Courts constituted under any law, other than this Code, there shall be, in every State, the following classes of Criminal Courts, namely-
(i) Courts of Session;
(ii) Judicial Magistrates of the First Class and, in any Metropolitan area, Metropolitan Magistrates:
(iii) Judicial Magistrate of the Second Class; and
(iv) Executive Magistrates.
(i) Court of Session- According to Section 9 of Cr. P. C., the State Government, shall establish a Court of Session for every sessions division.bEvery Court of Session shall be presided over by a Judge to be appointed by the High Court.
The High Court may also appoint Additional Sessions Judges and Assistant Sessions Judges to exercise jurisdiction in a Court of Session.
The Sessions Judge of one sessions division may be appointed by the High Court to be also an Additional Sessions Judge of another division.
Subordination of Assistant Sessions Judge-According to Section 10 of the Code of Criminal Procedure, all Assistant Sessions Judges shall be subordinate to the Sessions Judge.
The Sessions Judge may from time to time make rules consistent with this Code as to the distribution of business among such Assistant Sessions Judges.
(ii) Court of Judicial Magistrates- According to Section 11 of Cr.P.C.-(1) In every district (not being a metropolitan area), there shall be established as many Courts of Judicial Magistrates of the first class and of the second class and at such places, as the State Government may after consultation with the High Court, by notification, specify:
Provided that the State Government may, after consultation with the High Court, establish, for any local area, one or more Special Courts of Judicial Magistrates of the first class or of the second class to try any particular case or particular class of cases, and where any such Special Court is established, no other Court of Magistrate in the local area shall have jurisdiction to try any case or class of cases for the trial of which such Special Court of Judicial Magistrate has been established.
(2) The presiding officer of such Courts shall be appointed by the High Court.
(3) The High Court may, whenever it appears to it to be expedient or necessary, confer the powers of a Judicial Magistrate of the first class or of the second class on any member of the judicial service of the State, functioning as a Judge in a Civil Court.
Subordination of Judicial Magistrates. Section 15 of Code of Criminal Procedure provides for subordination of Judicial Magistrates.
According to Section 15-
(1) Every Chief Judicial Magistrate shall be subordinate to the Sessions Judge; and every other Judicial Magistrate shall, subject to the general control of the Sessions Judge, be subordinate to the Chief Judicial Magistrate.
(2) The Chief Judicial Magistrate may, from time to time, make rules or give special orders, consistent with this Code, as to the distribution of business among the Judicial Magistrates subordinate to him.
(iii) Court of Executive Magistrates-According to Section 20 of the Code of Criminal Procedure-
(1) In every district and in every metropolitan area, the State Government may appoint as many persons as it thinks fit to be Executive Magistrates and shall appoint one of them to be the District Magistrate.
(2) The State Government may appoint any Executive Magistrate to be an Additional District Magistrate, and such Magistrate shall have such of the powers of a District Magistrate under this Code or under any other law for the time being in force, as may be directed by the State Government.
(3) Whenever, in consequence of the office of a District Magistrate becoming vacant, any officer succeeds temporarily to the executive administration of the district, such officer shall, pending the orders of the State Government, exercise all the powers and perform all the duties respectively conferred and imposed by this Code on the District Magistrate.
(4) The State Government may place an Executive Magistrate in charge of a sub-division and may relieve him of the charge as occasion requires; and the Magistrate so placed in charge of sub-division shall be called the Sub-Divisional Magistrate.
(4A) The State Government may, by general or special order and subject such control and directions as it may deem fit to impose, delegate its powers under sub-section (4) to the District Magistrate.
(5) Nothing in this section shall preclude the State Government from conferring, under any law for the time being in force, on a Commissioner of Police, all or any of the powers of an Executive Magistrate in relation to a metropolitan area.
Subordination of Executive Magistrates-According to Section 23 of the Code of Criminal Procedure, all Executive Magistrates, other than the Additional District Magistrate shall be subordinate to the District Magistrate.
Every Executive Magistrate (other than the Sub-divisional Magistrate) exercising powers in a sub-division shall also be subordinate to the Sub- divisional Magistrate, subject, however, to the general control of the District Magistrate
The District Magistrate may, from time to time, make rules or give special orders, consistent with this Code, as to the distribution of business among the Executive Magistrates subordinate to him and as to the allocation of business to an Additional District Magistrate.